Qlorn? U Ham i>rljooI ICihtary Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020102517 A TREATISE ON EQUITY PLEADING AND PRACTICE BY PHILIP T.' YA^ ZILE OF THE DETROIT BAR AxiTHOR OF Bailments and Carkiees CHICAGO CALLAGHAN AND COMPANY 1904 Copyright, 1904, BY PHILIP T. VAN ZILE STATE JOUBNAL PBINTING COMPANY, Printers and Stereotypbrs, madison, wis. PREFACE. In the preparation of this work it has been the aim of the writer to present the theory, principles, and system of equity pleading and practice in a plain, simple, and methodical man- ner, stripped of ail technical phrase and language, noticing here and there the history of the subject and the many interven- tions, the result of modern ideas, necessary to meet the de- mands of the enlarged and progressive business of the times. To this end the origin, jurisdiction, and development of the court of chancery has been briefly noticed in the first chapter of the work, that the reader might better understand and apply the discussion of the subject in the chapters following. The yesterdays in the history of equitable jurisdiction and procedure are replete with endeavor to produce a clear and comprehensive system, — a system sufficient to meet the de- mands of justice and the equitable determination of the prob- lems that were constantly being presented for solution in the business world; and the to-days are reaping the satisfactory results of those endeavors; for this court, anchored as it is in the consciences of men, limited and directed by the settled rules of the law, has become indispensable to the welfare and business interests of mankind. Because of the necessity of keeping pace with the demands of the times, equity pleading and practice in this country and in England has been subjected to many changes. The equity court with its more or less modernized practice differs in many respects from the early English court of chancery. While raanv, and perhaps most, of the principles governing the prac- tice have been retained, following the trend of business in IV PEEFAOE. these latter days some of the early rules of practice which so unreasonably delaj'ed the course of the equity cause have given way to more expeditious practice and procedure. Among the interesting changes noticed which are of inter- est to the student-practitioner are those which have simplified and made more practical the equity bill, allowing unnecessary allegations and verbiage to be omitted; the chancery subpoena, particularly its service and the bringing of the defendant into court to answer the bill; thexhanges which finally resulted in allowing a decree j9ra confesso to be taken without the presence of the defendant and for his failure to appear and answer; also many changes in the form and use of other pleadings in the equity cause. The transition wrought in the manner of producing the proofs and the hearing of the cause has perhaps been more -marked and interesting than any other. The State courts have more generally answered the demands of an advancing age in this particular. The early method of producing the proofs in the chancery cause, so impracticable and unsatisfactory, has gradually given way to a more advanced and practical system, and to-day, in these courts, proofs are usually taken at the hearing before the chancellor and in open court, where the witnesses may be seen and heard, and thus the chancellor be better enabled to arrive at a decree from all the evidence ad- duced in the cause. The Federal courts, however, have been slow to adopt these changes, and in the matter of taking the proofs and hearing the cause still cling to the old and outgrown practice of tak- ing proofs before a master in chancery, allowing solicitors to appear and examine the witnesses, and the master to take the testimony in writing and report it to the court, to be read at the hearing. To this particular practice in the Federal courts some criti- cism has been offered, and the hope is entertained that by PEEFAOE. V congressional enactment and revision of rules a new and better system will be inaugurated which will at least render it possible for the litigant of ordinary means to obtain a hearing of his cause in the appellate court. The plan of the present work has been to pursue the practice and procedure in an ordinary equity cause from the filing of the bill to the final decree, noticing, as occasion seemed to sug- gest, the motions, petitions, interlocutory orders and decrees as they presented themselves in the discussion of the subject. This has been followed with a discussion of the more general and common remedies in equity, presenting to the practitioner and the student, in as clear and simple a manner as possible, the practice and procedure in the use of these ordinary reme- dies. That large and important class of statutory causes enforce- able in the equity court, with the special proceedings applica- ble to them, including statutory liens, the subjecting of stock- holders to the payment of material and labor debts, and the numerous other actions which though statutory require the aid of the equity court for their enforcement, together with forms of pleadings, motions, orders and decrees in equity courts, have been left for a second volume. With the hope that the work thus far completed may meet with the commendation of my brethren at the bar, it is respect- fully submitted. Philip T. Van Zile. Deteoit, Michigan, January 20, 1904. TABLE OF CONTENTS. References are to sections. CHAPTEE I. THE JURISDICTION OF THE EQUITY COURT. Legal and equitable remedies 1 History of equitable jurisdiction 2 Tbe ecclesiastics as chancellors 3 The conflict between courts of law and equity 4 A conscience court 5 What the jurisdiction embraces 6 Equitable jurisdiction — How divided 7 Exclusive jurisdiction 8 Concurrent jurisdiction 9 Auxiliary jurisdiction 10 Equity having obtained jurisdiction will retain it and award com- plete relief 11 The maxims in equity applicable to jurisdiction 12 CHAPTEE II. PLEADINGS AND PRACTICE IN EQUITY. The pleadings 13 Practice as distinguished from pleading 14 Records and orders of the court 15 Equity pleading and practice 16 The pleadings in the ordinary equity case 17 CHAPTEE III. THE BILL IN EQUITY. The oflBce and nature of the bill 18 The parties to a bill in equity are called 19 An information in equity 20 How bills in equity are divided — Definitions 21 (1) How original bills are divided 22 How original bills praying relief are divided 23 (2) How original bills not praying relief are divided 24 How bills not original are divided 25 Certain rules of pleading applicable 26 Chart of the equity bill 27 The nine parts of the equity bill 28 VIU TABLE OF CONTENTS. References are to sections. (1) The address 29 (2) The introduction 30 (3) The premises or stating part 31 The plaintiff must state his whole case 32 Necessary allegations to support an equity case 3S Form and manner of statement 34 Setting up deeds, mortgages, contracts, records, etc. 35 When must tender of performance be made in the bill 36 Allegations as to adversary's claim 37 Allegations of fraud 38 The bill must not be multifarious 39 Bill may be framed with a double aspect 40 Scandal and impertinence 41 (4) The confederating part 42 (5) The charging part 43 (6) The jurisdictional clause 44 (7) The interrogating part 45 (8) Prayer for relief 46 (9) Prayer for process 47 CHAPTER IV. PARTIES TO THE BILL. The aim of the equity court is to do complete justice 48 Classiiication of parties 49 Exceptions to the rule that all interested must be made parties. . . 50 First. Where the interested parties in the controversy are very numerous. Second. Where the party is absent from the jurisdiction. Third. Where certain parties interested are unknown. Fourth. Where a personal representative of a deceased person is a necessary party but his authority is disputed. Who should be parties complainant 51 Real parties in interest 52 One for all or a part for many 53 Infants as complainants 54 Married women as plaintiffs 55 Idiots, lunatics, and weak-minded persons 56 Parties defendant 57 Some exceptions 58 Persons partially incapacitated 59 Joinder, misjoinder, non-joinder of complainants 60 (1) Joinder of complainants. (2) Misjoinder of complainants. (3) Non-joinder of complainants. Joinder, misjoinder, non-joinder of defendants 61 (1) Joinder of defendants. (2) Misjoinder of defendants. (3) Non-joinder of defendants. TABLE OF CONTENTS. jx References are to sections. Bringing in new parties Intervention Some observations as to parties— Corporations— Partnerships- Trustee and cestui que trust — Heirs, executors and administra- tors 62 63 64 CHAPTEE V. DRAFTING THE BILL. Certainty and clearness to be observed 65 The necessary parts of the nine parts of the bill 66 Signing the bill 67 Verification of the bill 68 Form of the several parts of the original bill 69 A form of bill in equity 70 General observations as to form, etc 71 The filing of the bill 72 CHAPTEE VI. PROCESS AND DEFENDANT'S APPEARANCE. The origin of the chancery subpcena 73 The writ of subpcena and its general use » 74 The form of the writ — How addressed 75 Service of process 76 Service upon infant defendant 77 Service upon lunatics 78 Service upon prisoners 79 Service upon married woman 80 Service upon corporations 81 Service upon a state 82 By whom served 83 Substituted service 84 Service when defendant is without the jurisdiction 85 Validity of judgments and decrees based on service of process be- yond the jurisdiction 86 Process in divorce suits 87 Defective service waived by appearance or admission of service. . . 88 Appearance 89 How appearance is entered 90 Actions paramount to voluntary appearance 91 The effect of appearance 92 Compulsory appearance 93 How appearance entered by persons under disability 94 Husband and wife 95 Appearance by corporafon 96 b X TABLE OF CONTENTS. References are to sections. CHAPTEE VII. PROCEEDINGS TO A DECREE PRO CONFESSO. The defendant failing to appear 9'^ For failure to appear and defend — Bill taken as confessed 98 Default for failure to demur, plead or answer 99 Appearance of defendant entitles him to notice of subsequent pro- ceedings 100 Facts admitted by defendant's default 101 If defendant an infant or person under disability 102 Bill amended after default 103 Opening or setting aside the default 104 When decree has been taken upon order vro confesso 105 The procedure for setting aside the order pro confesso 106 CHAPTER VIII. DEFENSES IN EQUITY. The several kinds of defenses 107 I. Demurrer The nature of the demurrer 108 A speaking demurrer 109 Admissions by the demurrer 110 Extent of admissions Ill Kinds of demurrers: (1) General; (2) Special 112 (1) General demurrer. First. Demurrer for want of jurisdiction 113 Second. For misjoinder of causes of action — Multifariousness 114 Third. For defects as to parties — (a) Misjoinder — Non-joinder 115 (b) Demurrer because of incapacity of parties 116 Fourth. For defects in other allegations or want of material allegations . . . 117 The demurrer may be to the discovery sought as well as to the relief prayed for 118 Reasons for demurring to bill praying relief applicable when bill is for discovery 119 When bill for relief and discovery, defendant may demur to the relief, or to the discovery, or to both 120 The form of the general demurrer 121 (2) Special demurrer 122 TABLE OF CONTENTS. xi References are to sections. Demurrer ore tenus X23 Joint demurrer 124 When may the demurrer be filed 125 The extent of the demurrer 126 Demurrers to bills not original 127 Bringing the demurrer to a hearing 128 The hearing of the demurrer 129 The judgment or decree upon general demurrer 130 Demurrer overruled by plea or answer 131 The effect of failing to demur 132 II. Defe.yse by Plea. The plea 133 The plea should contain but one defense 134 The plea differs from a demurrer 135 The plea differs from an answer 136 The extent of the plea 137 Necessary averments 138 A division of pleas based upon facts alleged 139 (a) Pure pleas. (b) Negative pleas, or pleas not pure. (c) Anomalous pleas. Admissions by the plea 140 The plea overruled by answer 141 Pleas to the relief 142 First. Fleas in Abatement. Pleas in abatement defined and classified 143 (a) Pleas to the jurisdiction '. 144 (b) Pleas to the person 145 (c) Pleas to the bill 146 Second. Pleas in Bar. Nature and definition 147 Pleas in bar are of three kinds 148 First. Pleas Founded Upon Some Bar Created liy Statute. Pleas are divided 149 (a) Pleas of the statute of limitation 150 Laches 151 Where the case falls within the exceptions to the statute or there is reasonable excuse for the delay 152 Statute of limitations in cases of trust 153 Constructive trusts 154 (b) Pleas of the statute of frauds 155 (c) Pleas founded upon any statute private or public 156 The form of pleading the several statutes 157 Xll TABLE OF CONTENTS. Eeterenoes are to seotiona. Second. Pleas in Bar Founded Upon Some Matters of Record. When may be interposed ^°^ Where the bill alleges fraud in obtaining the former decree or judgment ■'■"^ Judgments or decrees, foreign or domestic, legal or equitable 160 Third. Pleas Founded on Matter in Pais. Plea ■- 161 (1) A plea founded upon a release 162 (2) A plea founded upon a stated account 163 Substance of the plea of account stated 164 (3) Plea of a settled account 165 (4) A plea of an award 166 (5) A plea of purchase for a valuable consideration without notice of equities 167 Persons affected by notice may have the benefit of the want of no- tice by intermediate parties 168 (6) A plea of title in the defendant 169 Pleas to the discovery sought 170 The several grounds of pleas to discovery 171 (1) Pleas to the jurisdiction. (2) Pleas to the person. (3) Pleas to the bill or frame of the bill. (4) Pleas in bar. The frame of the plea 172 When the plea must be supported by an answer 173 The answer in support of the plea no part of the defense 174 The form of a plea 175 The plaintiff's reply 176 Plaintiff may amend his bill after plea 177 Withdrawing the plea 178 The hearing 179 The determination or decree of the court upon the hearing 180 III. The Answer. The answer of the defendant in general 181 The answer is twofold in its nature and effect 182 Requisites of the answer 183 Defenses which may be interposed by answer 18i The answer may be used in conjunction with other defenses 185 Answer may contain several defenses 186 Discovery Ig7 The answer as to matters of discovery must be responsive i88 The answer when there are several defendants 189 The frame of the answer I^q Signing and swearing to the answer 191 TABLE OF CONTENTS. XIU References are to sections. The waiver of the sworn answer 192 Compelling an answer 193 Amendments 194 Exceptions to the answer 195 (1) Exceptions for insufficiency 196 Exceptions only allowed when answer under oath is required 197 When there is an answer to a part of a bill, a plea to a part, or a demurrer to a part 198 Exceptions to an answer to an amended bill 199 Failing to file exceptions— Effect of 200 A demurrer to an answer unknown 201 (2) Exceptions for scandal and impertinence 202 Excepting to an answer accompanying a plea allows the plea 203 Form of exceptions 204 Submissions to exceptions 205 Compelling a better answer 206 The answer as evidence 207 The weight of evidence 208 Admissions in the answer 209 The answer will not afford affirmative relief i 210 Some exceptions 211 The cross-bill 212 Necessity and object of cross-bill 213 The relief sought must be equitable relief 214 Parties to the cross-bill 215 Cross-bill by persons not parties to the original" suit 216 The frame of the cross-bill 217 Substance or body of the bill 218 The prayer of the bill 219 Signing and verifying the bill 220 Filing the bill 221 Leave to file 222 Answer in the nature of a cross-bill 223 Process, when necessary 224 Defenses to the cross-bill 225 Replication of complainant in cross-bill 226 The hearing 227 IV. DiSCLAIMEE. The nature of the disclaimer 228 When it can be interposed 229 When both an answer and disclaimer may be filed 230 A disclaimer operates as an estoppel 231 If the disclaimer is filed on account of mistake or ignorance 232 Signing, verifying, filing and serving 233 The decree in case disclaimer is filed 234 The costs 235 A chart of defenses 236 XIV TABLE OF CONTENTS. References are to sections. CHAPTER IX. THE REPLICATION. The nature of the replication 237 When complainant should file a replication 238 Filing a replication waives the right to except 239 Time for filing the replication 240 The form of a general replication 241 Waiver of the replication 242 CHAPTEE X. AMENDMENTS, SUPPLEMENTAL PLEADINGS, AND REVIVOR. Allowed in certain cases 243 I. Amendments. Amendments allowed to both parties 244 Mispleading in matter of form 245 Amendments rest largely in the discretion of the court 246 When the pleadings are verified 247 As to matters occurring after filing the original bill 248 When application should be made to amend 249 When amendments of the bill will be allowed 250 When amendments of the answer will be allowed 251 Same — At the hearing 252 Same — After the hearing 253 Amendments allowed by appellate courts 254 How amendments made 255 The effect of amendment 256 Amendments making a new and different case not allowed 257 Same — Limitations to amend the answer 258 Amendment of the answer at the hearing 259 II. Supplemental Pleadings. The office and nature of 260 Must obtain leave of court to file 261 Granting leave to file supplemental pleadings 262 Some limitations 263 Parties to supplemental bill 264 Substance and frame of the supplemental bill 265 Proceedings upon filing supplemental bill 266 Defenses to the supplemental bill are the usual defenses in equity. 267 An original bill in the nature of a supplemental bill 268 A supplemental answer 269 Leave of court must be obtained 270 TABLE OF CONTENTS. XV References are to sections. III. Bills of Revivor. The nature of the bill of revivor 271 The interest necessary to support the bill 272 Parties to the bill of revivor 273 Same subject — Parties defendant 274 Original bill in the nature of a bill of revivor 275 When the defendants can sustain a bill of revivor 276 The form of the bill of revivor 277 Distinction between the bill of revivor and a bill in the nature of a bill of revivor 278 The form of the bill in the nature of a bill of revivor 279 Bills of revivor and supplement 280 Defenses. Defenses to the several bills of revivor 281 By plea. By answer. Replication. The hearing. CHAPTEK XL INTERLOCUTORY APPLICATIONS AND PROCEEDINGS. Interlocutory applications 282 Motions. Nature and kinds of motions 283 (1) Ex parte motions 284 (2) Special motions upon notice to the opposite party 285 Who may make motions 286 Service and proof of service of motion and notice of hearing 287 The hearing of motions 288 Petitions. Proceeding by petition 289 Form of the petition 290 Serving the petition and notice and filing the same 291 The proofs upon which the petition is to be heard and the hearing 292 The use of petitions 293 Intervention — Who may intervene 294 The petition for intervention 295 Defenses to petitions for intervention 296 CHAPTEE XII. EVIDENCE. Taking proofs for the hearing 297 Practice in United States court 298 Depositions of witnesses beyond the jurisdiction of the court 299 XVI TABLE OF CONTENTS. References are to sections. Admission of evidence - Pleadings as evidence The burden of proof ^"^ Proof confined to issue made by pleading 303 Effect of variance ^"^ CHAP TEE XIII. THE HEARING. Bringing the cause to hearing 305 Demurrer 306 The plea 307 Hearing on bill and answer 308 Hearing on bill, answer and replication 309 Final hearing on pleadings and proofs 310 Matters disposed of at the final hearing 311 Conflict in state and federal jurisdictions 312 Objections to the hearing 313 A feigned issue 314 Submission of facts to jury discretionary with court 315 Effect of the verdict or findings of the jury 316 Instructions to jury, or order as to verdict, not subject for excep- tions 317 The court's determination at the hearing 318 CHAPTER XIV. PROCEEDINGS BEFORE MASTERS OR COMMISSIONERS. The master in chancery 319 Duties ministerial and judicial 320 The court cannot refer all the issues to a master to hear, try and determine 321 Objections and exceptions to the report of the master 322 CHAPTER XV. THE DECREE. The decree in equity corresponds to the judgment at law 323 (1) A final decree 324 (2) Interlocutory decrees 325 Some other distinguishing features 326 Some essentials to a valid decree 327 The frame of the decree 328 Drawing and settling the decree 329 A decree after the death of the party 330 Decrees pro confesso 33]^ TABLE OF CONTENTS. XVll Eeferences are to sections. Enrolment of decree 332 Necessity of enrolment 333 Some changes the court is permitted to make 334 Reopening the cause — Rehearing 335 The practice and reasons for granting 336 Reopening decrees taken pro confesso and permitting defense 337 The party moving to reopen the cause for rehearing must not be guilty of laches 338 Form and requisites of the application, filing and serving the same, and the answer thereto 339 The hearing 340 CHAPTER XVI. THE BILL. OF REVIEW AND BILLS IN THE NATURE OF BILLS OF REVIEW. The nature and scope of the bill 341 The grounds of the bill 342 Error of judgment as to facts 343 Bill founded on discovery of new matter 344 Xewly-discovered evidence 34.5 Some prerequisites for filing a bill of review — Must obey the decree 346 Other prerequisites 347 Application for leave to file a bill of review 348 The hearing of petition for leave and the order thereon 349 Parties to the bill 350 Frame of the bill of review 351 Bills in the nature of bills of review 352 Bills to Impeach the decree on account of fraud 353 Bills to carry decrees into execution 354 When should the bill be filed 355 Defenses to bills of review 356 The hearing 357 Enforcement of decree — Writ of execution 357a CHAPTER XVII. APPEALS. The nature of the appeal in equity 358 Appeal lies — Final decree 359 By whom taken 360 The procedure in obtaining and perfecting an appeal 361 Dismissal of the appeal 362 Notice of motion to dismiss appeal 363 The hearing 364 The decision and decree ~ot the court 365 XVlll TABLE OF CONTENTS. References are to sections. CHAPTER XVIII. REMEDIES IN EQUITY. The object of the chapter 36S Classification of equitable remedies 367 Statutory actions 368 CHAPTEE XIX. REMEDIES NOT SEEKING RELIEF, BUT WHICH ARE IN THEIR NATURE AND PURPOSE ADMINISTRATIVE AND PROTECTIVE. Section I. Interpleader. The nature and object of the action 369- The complainant a mere stakeholder, having no interest in the mat- ter in controversy 370' Seeming exceptions 371 As to title of claimants to the property, obligation or thing in con- troversy 372* The real oflBce of interpleader 373' Injunction to protect plaintiff from a multiplicity of suits 374 Plaintiff should tender performance of the duty or obligation or secure it 375' The parties to the bill of interpleader ^ . . 376 The bill of complaint 37T The prayer 378 Verification 379' Defenses to bills of interpleader 380 The replication 381 The hearing and decree 382' Section II. Recei'vers. Receivers — Nature and office of, in equity suits 383 Definition and some requisites 384' Jurisdiction to appoint 385 Must be in pending suit 386 In what cases appointed 387 Some special cases 388 Receivers over real property 389 The application for appointment 390 The order on application for appointment 391 The title or right of possession and control of the receiver 392 The New York rule ggo- Something of the powers, duties and obligations of the receiver 394 Foreign and ancillary receivers onjr Interference with receivers — Contempt of court 390 Procedure in cases for contempt " ' 0Q7- TABLE OF CONTENTS. XIX Eeferenoea are to sections. CHAPTER XX. INJUNCTIONS. The remedy 398 Cases In which the court will not grant an injunction 399 Cases in which courts of equity will allow injunction 400 Several Kinds of Injunctions. Kinds of injunctions 401 Proceduke. The bill of complaint 402 Obtaining the writ 403 The order, writ or interlocutory decree 404 Injunction bond 405 Dissolution or modification of the injunction 406 CHAPTEE XXI. REMEDIES ESTABLISHING PRIMARY RIGHTS. The remedies to be discussed 407 I. Actions for Assignment op Dowek. History and development of dower 408 The procedure 409 II. Partition. The jurisdiction 410 The subject-matter of the procedure — The property 411 Who may enforce partition 412 The bill of complaint 413 Defenses in partition , 414 Default of defendant and procedure 415 The hearing and decree or order 416 III. Reforming a Contract, Deed, or Written Oblication. When equity will take jurisdiction 417 The mistake upon which the remedy may be based 418 The procedure — The bill of complaint 419 Defenses 420 Proofs 421 IV. Rescission, Cancellation, Surrender or Discharge of Instru- ments. The equitable jurisdiction 422 Some cases in which the remedies are applicable 423 The procedure 424 To remove cloud from title — Nature of remedy 425 XX TABLE OF CONTENTS. References are to sections. Adequate remedy at law *26 Possession by plaintiff 427 The pleadings 428 CHAPTER XXII. REMEDIES BXDR THE ENFORCEMENT OF OBLIGATIONS. I. Actions fob the Specific Performance of Contracts. Specific performance 429 Not a matter of absolute right but of discretion 430 Some requisites to the relief 431 Tender of performance 432 The procedure — The parties 433 The bill of complaint 434 Defenses 435 The decree 436 II. Actions fob the Declaration and Enfokgement of Trusts and Obligations Arising from Fiduciary Relations. Trusts — Nature of and definition 437 Creation or declaration of trust 438 Equitable remedies — Procedure 439 Equity will follow the trust property 440 Pleadings and procedure in enforcement of trusts 441 The bill of complaint 442 The defense 443 The decree 444 III. CONTEIBUTION, EXONERATION AND SUBEOGATION. The relation and nature of the several remedies 445 The jurisdiction of equity — Contribution — Subrogation 446 To what cases subrogation applies 447 A mere volunteer not entitled to remedy 448 One guilty of fraud or negligence not entitled to the relief 449 When the remedy is complete 450 Pleadings — Procedure — Bill of complaint 451 Defenses 452 IV. Actions foe the Dissolution of Partnerships and for an Ac- counting. The equitable jurisdiction in partnership cases 453 Dissolution of a partnership 454 The equitable remedy 455 Some conclusions 456 The pleadings — The bill of complaint 457 The defenses 458 V. Actions Where Damages Are Awarded. As an equitable remedy 459 TABLE OF CONTENTS. XXI References are to sections. CHAPTER XXIII. REMEDIES FOR THE ENFORCEMENT OF LIENS OR SUBJECTING CERTAIN SPECIFIC PROPERTY TO THE PAYMENT OF OBLI- GATIONS; AND INCIDENTAL THERETO THE RIGHT OF RE- DEMPTION AND BILLS TO REDEEM. • I. Actions fob the Foreclosure of Mortgages or Pledges. Mortgage foreclosure 460 The nature and purpose of the foreclosure 461 When the right to foreclose accrues 462 Some limitations and exceptions 46S The forum 464 Parties to the action — Complainants 465 Defendants 466 The bill of complaint 467 Defenses 468 Compelling foreclosure 469 Defenses — By cross-bill 470 Proceedings in foreclosure before final hearing 471 The hearing 472 The decree and order confirming sale 473 Order of sale — Inverse order of alienation 474 Redemption 475 Redemption of entire mortgage and not a part 476 The bill to redeem 477 Parties to a bill to redeem 478 ( 1 ) Complainants. (2) Defendants. The prayer of the bill 479 The decree 480 Statute of limitations — Laches 481 II. Marshaling Securities. The equitable doctrine 482 When doctrine not observed — Subrogation 483 When paramount creditor releases security held by him alone 484 Enforcement of the doctrine 485 III. Creditors' Bills and Bills in Aid op Execution. Creditors' suits — Kinds and object of 486 (1) Judgment creditors' bills 487 Some requisites to the filing of the bill 488 The judgment — The execution and return 489 Objections to the regularity of the judgment 490 ( 2 ) Bills in aid of execution 491 Sufficiency of lien by attachment 492 XXU TABLE OF CONTENTS. References are to sections. Parties to creditors' bills 493 (1) Plaintiffs. (2) Defendants. The form of the bill 494 Bill for double purpose, to reach equitable assets and in aid of exe- cution 495 The defense — Demurrer — Plea 496 The answer 497 Injunction and receiver 498 Lien obtained by creditor's suit — Priority 499 The decree 500 The form of the decree , 501 TABLE OF CASES CITED. References are to sections. Abbott V.Allen, 468. Abbott V. Godfrey's Heirs, 467. Abbott V. Gregory, 460. Abernethy v. Hutchinson, 400. A. Booth & Co. V. Siebold, 400. Abraham v. Northern Ins. Co., 418. Ackerman v. Bogrisch, 418. Adair v. New River Co., 50. Adams v. Circuit Judge, 84. Adams v. Gill, 256. Adams v. Heckscher, 84. Adams v. Kehlor Milling Co., 46. Adams v. Phillips, 256. Adams v. Valentine, 211. Adams V. Way, 125. Adams v. Wheeler, 419. Adamski v. Wieczorek, 343, 345. Adelbert College v. Toledo, etc., 215. jEtna Life Ins. Co. v. Middleport, 448. .^Ina Life Ins. Co. v. Smith, 146. Agar V. Fairfax, 410. Agard v. Valencia, 431. Agnew V. Bell, 445. Aholz V. Durfee, 345. Ahrend v. Odiorne, 117. Aiken v. Morris, 468. Akerly v. Vilas, 400. Albany City Bank v. Dorr, 134, 388. Albany City Bank v. Schermer- horn, 385, 396, 397. Albany City Savings Inst. v. Bur- dick, 417, 418. Albert, etc. v. The State, 443. Albertson v. Reding, 232. Alden v. Pryal, 468. Aldrich v. Aldrich, 445. Aldrich v. Cooper, 482. Aldrich v. Hapgood, 445. Aleck V. Jackson, 377. Alexander v. Horner, 49. Alfred, etc. Brick Co. v. Trott, 238. Alfred Richards Brick Co. v. At- kinson, 130. Alger V. Anderson, 50, 154. Alkire, etc. Co. v. Ballenger, 438. Allan V. Woodson, 256. Allen V. Allen, 223. Allen V. Montgomery, 493. Allen V. Mower, 207. Allen V. Pedro, 401. Allen V. Randolph, 162, 179. Allen V. Russell, 440. Allen V. Shackelton, 468. Allen V. Swoope, 478. Allen V.Taylor, 261, 264. Allen's Ex'rs v. Roll, 465. Allis V. Withlacoochee, 245, 246. AUis-Chalmers Co. v. Reliable Lodge, 400. Allgood V. Bank, 350. Allured v. Voller, 88. Almy V. Piatt, 492. Alsager v. Johnson, 41. Alston V. Massenburg, 392. Alston V. Munford, 483. Alston, etc. Ins, Co. v. Buckmaster, 427. Alston et ux. v. Jones, 60. Ambler v. Choteau, 110. American Ass'n v. Innis, 12. American Bible Soc. v. Hague, 256. iVmerican Bible Soc. V. Price, 250. American Box Match Co. v. Cros- man, 40. American Dock, etc. Co. v. Trus- tees, 314. XXIV TABLE OF CASES CITED. Keferences are American, etc. Bank v. McGetti- gan, 392. American, etc. Co. v. Burlington, etc. Ass'n, 477. American, etc. Co. v. Phoenix, etc. Co., 400. American Freehold, etc. Co. v. Williams, 362. American Ins. Co. v. Fisk, 9. American Press Ass'n v. Brant- ingham, 369. American Trust & Savings Bank V. Pack, Woods & Co., 84. American Waltham Watch Co. v. United States Watch Co., 400. Ames V. King, 196. Ames V. Union Pac. Ry. Co., 395. Amiss V. McGinnis, 350. Andel v. Starkel, 400. Anderson V. Harvey, 399. Anderson v. Newman, 120. Anderson v. Reed, 328. Anderson v. White et al., 276. Anderson Transfer Co. v. Fuller, 38. Andrews v. Gillespie, 468. Andrews v. Halliday, 328. Andrews v. Kibbee, 213, 218. Andrews v. McCoy, 40. Andrews v. National, etc. Works, 498. Andrews v. Scotton, 461. Angel V. Railway Co., 256. Angler v. Ash, 468. Angle v. Draper, 489. Anheuser-Busch, etc. Co. v. Peter- son, 86. Anthony v. Shannon, 327. Appeal of Wilhelm, 40. Archer v. Long, 363. Arden v. Arden, 169. Arden v. Walden, 337. Arents v. Blackwell, etc. Co., 388. Arkansas, etc. Ass'n v. Madden, 399. Arlina v. Miller, 183. Armatage v. Fisher, 110. Armatage v. Toll, 483. to sections. Armengaud v. Coudert, 162. Armstead v. Smith, 406. Armstrong v. Building Ass'n, 100. Armstrong v. Ross, 250. Armstrong v. Sweeney, 406. Am V. Arn, 373. Arnaud v. Grigg, 251. Arnold v. Chesebrough, 251. Arnold v. Kyle, 184. Arnold v. Slaughter, 197. Arthur v. Scott, 51. Arundel v. Phipps, 55. Ashburton v. Ashburton, 444. Ashmead v. McCarthur, 473. Ashmore Highway, etc. v. Green, 399. Aspen V. Rucker, 411. Aspinwall v. Sacchi, 445. Atherton v. Roche, 418. Aikins V. Faulkner, 101. Atkinson v. Felder, 459. Atkinson v. Hall, 461. Atkinson v. Manks, 373. Atlanta Mills v. Mason, 212. Atlantic, etc. Co. v. Nelms, 418. Atterbury v. Knox, 187. Attorney-General v. Bank of Co- lumbia, 393. Attorney-General v. Board of Au- ditors, 20. Attorney-General v. Brown, 123. Attorney-General v. College, 351. Attorney-General v. Continental Ins. Co., 359. Attorney-General v. Detroit, 400. Attorney-General v. Evart Boom- ing Co., 400. Attorney-General v. Great North- ern Ry. Co., 400. Af torney-Genera v. Jackson, 146. Attorney-General v. North Ameri- can Life Ins. Co., 394. Attorney-General v. Oakland County, 183, 406. Attorney-General v. Stiles, 183. Attorney-General v. Supervisors, 58. Attorney-General v. Wright, 285. TABLE OF CASES CITED. XXV, References are to sections. Atwater v. Kinman, C8. Atwill V. Ferrett, 122. Atwood V. Smith, 314. Audenried v. Philadelphia, etc. Ry. Co., 401. Austin V. Riley et al., 337. Auten V. City, etc. Ry. Co., 392. Avery v. Kellogg, 40. Axtell V. Fulsifer, 328. Ayers v. Chicago, 227. Ayers v. Gartner, 68. Aylesworth v. Crocker, 39, 114. Ayres v. Carver et al., 212, 213, 227. Bahington v. Brewery Co., 499. Bacon v. Devinney, 485. Bacon v. Fay, 411. Bachman v. Sepulveda, 500. Badger v. Badger, 117. Bagley v. Adams, 180. Bagley v. Bruce, 408. Bailey v. Adams, 134. Bailey v. Gould, 467. Bailey v. Ryder, 494, 500. Bailey, etc. Co. v. Young et al., 189, 192. Baillie v. Sibbald, 138. Baily v. Tillinghast, 115. Baker V. Atkins, 68. Baker v. Fireman, etc. Ins. Co., 475. Baker v. Oil Track Co., 222. Baker v. Safe, etc. Co., 315. Baker v. Sanders, 400. Baker v. Terrill, 447. Baldwin v. Aldrich, 416. Balen v. Mercier, 259. Ball V. Phenicie, 497. Ballin v. Lace Imp. Co., 489. Ballin v. Loeb, 489. Ballentine V. Beall, 388, 489. Ballentine v. Clark, 331, 418. Ballew v. Roler, 447. Baltimore, etc. Co. v. Coats, 31. Baltimore, etc. Ry. Co. v. Wheel- ing, 191. Bampton v. Birchall, 280. Bancroft v. Conant, 464. Bancroft v. Sawin, 481. Bank V. Blodgett, 314. Bank V. Bronson, 468. Bank V. Daniel, 151. Bank v. Dudley, 410. Bank v. Dundas, 343. Bank v. Finch, 101, 103, 256. Bank V. Halley, 110. Bank v. Hastings, 50. Bank V. Hemphill, 308. Bank V. Ibbotson, 445. Bank V. Loomis, 341. Bank v. Meach, 490. Bank v. Moulton, 314. Bank v. Rutland, etc. Ry. Co., 144. Bank v. Sandford, 210. Bank v. Tyler, 493. Bank v. Weisiger, 330. Bank, -etc. v. Biddle, 187. Bank of Bethel v. Pahquioque Bank, 271. Bank of Jlonroe v. Schermerhorn, 388. Bank of Montreal v. Taylor, 26. Bank of Tomah v. Warren, 400. Bank of XJtica v. Mersereau, 184. Bank of XJtica v. Messereau, 120. Bank of Wooster v. Spencer, 490. Banking Ass'n v. Insurance Ass'n, 362. Banks v. Carter, 288. feanks V. McDivitt, 400. Banks v. Walker, 468. Banner v. Dingus, 498. Bannister v. Miller, 183. Bannon v. Comegy's Adm'r et al., 248. Banta v. Marcellus, 276. Bar v. Closterman, 26. Barbee v. Inman, 188. Barber v. Barber, 9. Barber v. International, etc. Co., 388. Barber v. Milner, 438. Barber v. Reynolds, 256. Barclay v. Brown, 328. Barcus v. Gates, 39. Barger v, Buckland, 500, 501. XXVI TABLE OF CASES CITED. References are to sections. Barksdale v. Davis, 126, 130. Barley v. Gittings, 390. Barlow v. Daniels, 358. Barnard v. Cusliman, 31, 477. Barnes v. Greenzebach, 257. Barnes v. Jones, 388. Barnett v. Powers, 273. Barney v. City of Baltimore, 327. Barney v. Latham, 57. Barney v. McClancey, 467. Barnum, etc. Co. v. Speed, 40G. Barr V. Essex, 400. Barr v. Lamaster, 411. Barr V. Voorhees, 498. Barrett v. Doughty, 123. Barrett v. McAllister, 98. Barroll v. Foreman, 380. Barstow v. Smith, 124. Earth v. Rosenfeld, 382. Barton v. Barbour, 213, 316. Barton v. Gray, 132. Barton v. International, etc. Co., 209, 400. Barton v. Loan, etc. Ass'n, 390. Bartlet v. Lee, 464. Bartley v. Greenleaf, 431. Basey v. Gallagher, 131, 321. Bass V. Metropolitan, etc. Co., 400. Bassett v. Nosworthy, 173. Bateman v. Wiatts, 404. Bates V. Bates, 418. Bates V. Wheeler, 434. Batesville Inst. v. Kauffman, 418. Batre v. Auze's Heirs, 98. Battell V. Matot, 184. Battery Park Bank v. Western Cawley Bank, 392. Batty V. Snook, 460. Baum V. Baum, 431. Eauman v. Bean, 132. Baxter v. State, 165. Bayliss v. Lafayette, etc. Ry. Co., 294. Beach v. Kidder, 163. Beach v. Reynolds, 260. Beach v. Shaw, 475. Beach v. White, 388, 497. Eeadel v. Perry, 400. Beadle v. Cole, 478. Beall V. Smith, S6. Beam v. Bennett, 495. Beatty v. Coble, 400. Beauchamp V. Putnam, 222. Beauchamp v. Supervisors, 406. Beck V. Beck, 225. Beck V. Burdett, 489, 491. Beckman v. Duncan, 416. Beddow v. Beddow, 399. Bedell v. Bedell, 125. Bedell V. Hoffman, 371, 373, 378, 382. Beecher v. Anderson, 191. Beecher v. Beecher, 411. Beekman v. Waters, 256. Bein v. Heath, 55. Beith V. Porter, 491. Bellair v. Wool, 421. Bellinger v. Lehman, 246. Bell V.Bell, 330. Bell V. Felt, 424. Bell V. Gunn, 376. Bell V. Ohio Life, etc. Co., 400. Bell V. Romaine,-462. Bell V. Woodward, 132. Bellows V. Stone, 250. Belton V. Apperson, 246, 257. Benbow v. Davies, 235. Bender v. Terwilliger, 411. Bendey v. Townsend, 465. Benedict v. Auditor-General, 337. Benedict v. Thompson, 338, 359. Benedict v. T. L. V. Land & Cattle Co., 487, 498. Bengley v. Wheeler, 57. Bennett v. Bennett, 432. Bennett v. Brown, 327. Bennett v. Pierce, 204. Bennett v. Seligman, 399. Bennington Iron Co. v. Campbell, 199. Benson v. Dempster, 151. Benson v. Vernon, 97. Benson v. Wolverton, 276. Bent V. Smith, 208. Bentley v. Cowman, 228. Bentley v. Phelps, 336. TABLE OF CASES CITED. XXVll References are to sections. Berger v. Jacobs, 55. Bergmann v. Salmon et al., 46. Berks Co. v. Jones, 362. Berliner, etc. Co. v. Seaman, 431. Bernard v. Toplitz, 250. Bernier v. Bernier, 67. Berryman v. Haden, 62. Berstein v. Hobelman, 473. Bertine v. Varian, 183. Berwind v. Canadian, etc. Ry. Co., 126. Betcher v. Insurance Co., 26. Bethel v. Pahquioque Bank, 271. Bettes V. Dana, 281. Bettmann v. Harness, 399, 400, 403. Beverly v. Brooks, 385. Bibber-White Co. v. White River Co., 431. Bickerdike v. Allen, 86. Bickerstaff v. Doub, 492. Biddecomb v. Bond, 489. Bidder v. McLean, 121. Bidwell V. Garrison, 432. Bienenfield v. Fresno Milling Co., 362. Bierne v. Ray, 238. Bigelow V. Ayrault, 487. Bigelow V. Booth, 478. Bigelow V. Bush, 466. Bigelow V. Sandford, 427. Biggerstaff v. Biggerstaff, 316. Bilbie v. Lumly, 418. Bill v. Schilling, 253. Billers v. Bowles, 97. Billing V. Flight, 135, 176. Billingslea v. Manear, 130. Billmyer v. Sherman, 493. Bilz V. Bilz, 310. Binney v. Turner, 132. Bird V. Bradburn, 431. Bird V. Davis, 468. Bird's Adm'r v. Inslee's Ex'rs, 11.7. Birmingham v. Gallagher, 53. Birmingham Ry. Co. v. Traction Co., 399. Birmingham Shoe Co. v. Torrey, 388. Bisel v. Tucker, 428. Bishop v. Waldron, 121. Bissell V. Kellogg, 425. Bitting V. Ten Eyck, 385. Black V. Miller, 183, 184. Black V. Sweeting, 454. Blackerby v. Helton, 223. Blackett v. Laimbeer, 493. Blackwell v. Geering, 97. Blair v. Harrison, 253. Blair V.Hill, 440. Blair v. Reading, 225, 327. Blair v. Thompson, 408. Blaisdell, Adm'r, v. Bowers, 207. Blake V. Askew, 360. Blake v. Blake, 500. Blake v. Dorgan, 456. Blake v. Garwood, 376. Blake v. McCosh, 483. Blakemore v. Blakemore, 416. Blanchard v. Williams, 150. Blanton v. Bostic, 445. Blease v. Garlington, 298. Bleeker v. Bingham, 496. Blish V. Colling, 497. Bliss V. French, 377, 379. Bliss V. Parks, 39, 108, 126. Blonheim v. Moore, 387, 390. Blood V. Manchester Electric Lt. Co., 38. Blood V. Marcuse, 486. Bloodgood V. Clark, 388. Bloomer v. Henderson, 304. Blossom V. Railway Co., 473. Blount V. Societe Anonyme du Filtre, 401. Blue V. Watson, 376, 377, 380. Blunt V. Clithero, 384. Blythe Co. v. Hinckley, 347, 355. Board of Supervisors v. Wal- bridge, 50. Bock V. Bock, 327. Bogardus v. Rosendale Mfg. Co., 493. Bogardus v. Trinity Church, 134, 140, 173, 203. Bogle V. Bogle, 212. Bolin V, St. Louis, etc. Ry. Co., 377. XXVIU TABLE OF OASES CITED. References are to sections. Bolton V. Gardner, 162, 184, 185. Boltz V. Stoltz, 408. Bonaparte v. Camden, etc. Ry. Co., 398, 402. Bonham v. Weymouth, 411. Bonnard v. Ferryman, 399. Bonnell v. Lewis, 328. Boone v. Chiles, 168, 184. Boone, etc. Bank v. Byrum, 447. Booraem v. Railway Co., 399. Booten v. Scheflfer, 431. Booth V. Clark, 384, 394. Booth V. Savings Bank, 442. Borden v. Curtis, 434. Borders v. Murphy, 327. Bosley v. M'Kim, 398. Boston, etc. Ry. Co. v. Parr, 130. Boston, etc. Ry. Co. v. Sullivan, 399. Bostwick V. Brinkerhoff, 318, 359. Bostwiek v. Stiles, 477. Bouget V. Monroe, 459. Bowe V. Bowe, 468. Bowen V. Cross, 269. Bowen v. Gent, 493. Bower v. Bright, 267. Bower v. Idley, 256. Bower, etc. Co. v. Wells, etc. Co., 204. Bowers v. Keescher, 61. Bowers Dredging Co. v. New York Dredging Co., 399. Bowers, etc. Co. v. New York, etc. Co., 400. Bowie V. Minter, 261, 280. Bowles V. McAllen, 52. Bowman v. Wilson, 490. Bows V. Jurat, 97. Boyce v. Grundy, 9. Boyd V. Hoyt, 61, 493. Boyden v. Reed, 345. Boynton v. Rawson, 499. Boynton v. Reese, 423. Bozarth v. Largent, 473. Brace v. Doble, 436. Brachet v. Graves, 369. Bracken v. Preston, 33. Bradfleld v. Dewell, 399. Bradford v. Tenn. etc., 211. Bradish v. Grant, 256. Bradley v. Bradley, 48, 115. Bradley v. Converse, 40. Bradley v. Gilbert, 49, 57. Bradley v. Harkness, 453. Bradwell v. Weeks, 54, 93, 94. Brady V.Bay State Gas Co., 387, 388. Brady v. Yost, 316. Bragg V. Lyon, 416. Brainard v. Buck, 257, 443. Brainard v. Feather, 447. Braman v. Wilkinson, 212. Branch v. Wilkins, 464, 466, 467. Brande v. Gilchrist, 223. Brande v. Grace, 459. Brandon Mfg. Co. v. Prime, 215. Brandreth v. Lance, 399. Brasher's Ex'rs v. Van Cortlandt, 218. ' Brass v. Rathbone, 398. Blasted v. Sutton, 388. Braxton v. Lee, 327. Breen v. Donnelly, 419. Brehm v. Sperry, 431. Brennan v. Hall, 376. Brereton v. Gamul, 180. Brevard v. Summar et al., 285. Brewer v. Conger, 478. Brewer v. Dodge, 337. Brewer v. Holmes, 344. Brewster v. Cahill, 308. Brewster v. Power, 487. Briarfield, etc. Co. v. Foster, 387. Briant v. Reed, 379. Bridesburg Manufacturing Co.'s Appeal, 370. Bridgford v. Barbour, 413. Bridgport, etc. Co. v. Meader, 463. Brldgport Sav. Bank v. Eldredge, 477. Briggs V. Briggs, 68. Briggs V. Enslow, 237, 238. Briggs V. Hannowald, 465. Briggs V. Johnson, 425. Brine v. Insurance Co., 312. Brink v. Morton, 194. TABLE OF CASES CITED. XXIX Eeterences are to sections. Brinkerhoff V. Brown, 489, 493. Brinkerhoff v. Marvin, 482. Broad v. Broad, 414. Brock V. Rich, 489, 496, 497, 499. Brockway v. Carter, 464. Broder v. Conklin, 443. Bromberg Bros. v. Heyer Bros., 229. Bronson v. La Crosse Ry. Co., 191, 222. Bronson v. Vaughan, 301. Brook V. Widdicombe, 110. Brooke v. Hewitt, 108. Brooks V. Byam, 188. Brooks V. Lowenstein et al., 31. Brooks V. Mead, 242. Broome v. New York Central Co., 401. Broughton v. Broughton, 400. Brown v. Aspen, 335. Brown v. Bank, 46. Brown v. Bates, 493. Brown v. Bedford, etc. Co., 40. Brown v. Bronson, 408. Brown v. Brown, 50, 151. Brown v. Bulkley, 208. Brown v. Elwell, 467. Brown v. Kalamazoo, 314. Brown v. Mortgage Co., 197. Brown v. Parker, 488. Brown v. South Boston, etc. Bank, 477. Brown v. Worster, 297, 298, 299. Brownell v. Curtis, 120, 141, 184, 185, 496. Brownell Co. v. Critchfield, 365. Browning v. Bettis, 393. Browning v. Watkins, 376. Brownsword v. Edwards, 109. Bruen v. Bruen, 141, 185. Brumley v. Westchester, etc. Co., 191. Brundage v. Home, etc. Ass'n, 389. Brunner v. Bay City, 60. Bryant v. Allen, 445. Bryant v. Russell, 53. Bryson v. McShane, 431. Buchanan v. Comstock, 263. Buchanan v. Greenway, 235. Buchanan v. Marsh, 489. Buck V. Buck, 433. Buck V. Colbath, 400. Buck V. Stuben, 471. Buckeye Machine Co. v. Doonan, etc. Co., 489. Buckingham v. Corning, 265. Buckley v. Boutellier, 194. Budd V. Camden, etc. Co., 401 Buettel V. Harmount, 476. Euettgenbach v. Gerbig, 401. Buffington v. Harvey, 343. Buford V. Rucker, 191. Bulkeley v. House, 445. Bulkley v. Van Wick, 331. Bulkly V. Little, 392. Bull V. Brockway, 163. Bumpus V. Platner, 468. Bundy v. Town of Montecello, 440. Bunker Hill, etc. Co. v. Shoshone, etc. Co., 134. Burbin v. Barber & Barney, 454. Burch V. Scott, 332. Burford v. Kersey, 221. Burgin v. Giberson, 249, 251. Burhans v. School District, 166. Burk V. Machine, etc. Co., 117, 123. Burke v. Morris, 493. Burley v. Flint, 343. Burley v. White, 442. Burlington Sav. Bank v. City of Clinton, 114. Burney v. Ball, 256. Burnham v. Bowen, 471. Burnham v. Tillery, 257, 304. Burns v. Fox, 434. Burns v. Lynde, 68. Burpee v. Smith, 120, 399. Burr V. Beers, 466. Burr V. Burton, 41. Burrall v. Rainetaux, 125. Burras v. Looker, 197. Burrell v. Hackley,, 176. Burtas v. Tisdall, 500. Bush V. Wadsworth, 447, 448. Bussey v. Moragan, 420. Bustard v. Dabney, Adm'r, 488. XXX TABLE OF OASES CITED. References Buswell V. Lincks, 499. Butler V. Catling, 187. Butler V. Kenzie, 189. Butler V. Ladue, 462. Butterfield v. Beardsley, 322. Butterfield v. Graves, 428. Butterfield v. Radde, 288. Butterfield v. Sawyer, 418. Byers v. Coal Co., 246. Byers v. Sexton, 238. Byers v. Suggs, 88. Byram v. McDowell, 98. Byrd v. Rautman, 154. Byrd v. Sabin, 225. Byrd v. Turpin, 468. Cabeen v. Gordon, 245. Cable V. Ellis, 217. Cadotte v. Cadotte, 334. Caldwell v. Boyer, 264. Caldwell v. Ellebrecht, 462. Caldwell v. First Nat. Bank, 260. Caldwell v. Montgomery, 117. Calhoun v. Calhoun, 462, 467. California v. Southern Pac. etc. Co., 49. Calkins v. Landis, 208. Callaghan v. Myers, 321, 400. Caller v. Shields, 343, 345. Calmes v. Ament, 344. Calverly v. Harper, 413. Camden, etc. R. Co. v. Adams, 431. Cameron v. Groveland Co., 388, 390. Camp V. Waring, 250. Campau v. Campau, 411. Campau v. Van Dyke, 151. Campbell v. Ayers, 328. Campbell v. Clark, 457, 458. Campbell v. Crawford, 144. Campbell v. Dearborn, 475. Campbell v. Johnson, 64. Campbell v. Mesier, 330, 445. Campbell v. Shelden, 444. Campbell v. Shipman, 52. Campbell v. Wallace, 444. Campbell v. West, 464. Campbell v. Western Elec. Co., 491. Campbell v. Worthington, 460. are to sections. Canal Com'rs v. Sanitary District of Chicago, 431. Canant v. Mappin, 213. Candler v. Petit, 263, 264. Canedy v. Marcy, 418. Caperton v. Forrey, 431. Capital City Gas Co. v. Des Moines, 401. Carberry v. W. Va. etc. Ry. Co., 426. Carey v. Hillhouse, 256. Carey v. Hoxey, 327. Carey v. Smith, 247. Carger v. Fee, 428. Carleton v. Rugg, 67. Carley v. Fox, 466. Carlton V. Hullett, 468. Carlton v. Superior Court, 362. Carpenter v. Benson, 197. Carpenter v. Carpenter, 151. Carpenter v. Gray, 285. Carpenter v. Mutual Life Ins. Co., 436. Carpenter v. Osborn, 490. Carpenter v. Plagge, 481. Carpenter v. Reynolds, 361. Carney v. Carney, 130. Carney v. Hadley, 399. Carr v. Carr, 460. Carr v. United States, 58. Carrell v. Potter, 331. Carriger v. Kennedy, 362. Carroll v. Ballance, 461. Carroll v. Farmers', etc. Bank, 399, 400. Carroll V. Potter, 136, 183. Carroll v. Rice, 420. Carroll v. Richardson, 213. Carter v. Couch, 154. Carter v. Leonard, 418. Carter v. Pritchard, 172. Carter v. Torrance, 104. Cartersville, etc. Co. v. City of Cartersville, 401. Caruthers v. Hall, 470. Case V. Beauregard, 318. Case V. Minot, 146, 459. Casperson v. Casperson, 9. TABLE OF CASES CITED. ZXXl References are to sections. Cass V. Sutherland, 392. Casserly v. Witherbee, 477. Cassidy v. SMmmin, 49. Cassilear v. Simons, 396. Castle V. Bader, 38. Castleman v. Berry et al., 52. Caswell V. Caswell, 345. Cates V. Allen, 314. Catlin V. Doughty, 494. Catton V. Carlisle, 281. Cavender v. Cavender, 239. C, B. & Q. Ry. Co. v. Burlington, etc. Ry. Co., 401. Cecil V. Clark, 411. Center Creek, etc. Co. v. Lindsay, 419. Central Nat. Bank v. Graham, 498. Central Trust Co. v. Moran, 401. Central Trust Co. v. West, 260. Chace v. Trafford, 163. Chadbourne v. Coe, 49. Chadbourne v. Stockton, etc. Soc, 36. Chadwick v. Broadwood, 141. Chadwick v. Chadwick, 442. Chaffee v. Jones, 445. Chalfants v. Martin, 237. Chamberlain v. Chamberlain, 475. Chamberlain v. Lyell, 468. Champion v. Brown, 433. Champlin v. Stoddard, 400. Champlin et al. v. Champlin et al., 53, 137. Chancellor v-. Spencer, 350. Chandler v. McKinney, 102, 331. Chandler v. Pettit, 263, 264. Chanler v. Richardson, 411. Chapel V. Hull, 9. Chapin v. Circuit Judge, 464. Chapin v. James, 400. Chapman V. Chunn, 114. Chapman v. City of Hartford, 425. Chapman V. Dunwell, 421. Chapman v. Fields, 256. Chapman V. Publishing Co., 67. Chappell Chemical Co. v. Mines Co., 260. Chase v. Boughton, 327. Chase v. Cannon et al., 39. Chase v. Chase, 154. Chase V. Searles, 60, 61. Chattanooga v. Livingston, 194, 258. Cheeney v. Bilby, 433. Cheesebrough v. Millard, 483. Cheney v. Harding, 88. Chesapeake, etc. Ry. Co. v. Pat- ten, 406. Chester v. King, 466. Chicago, etc. v. Connecticut, etc. Ins. Co., 221. Chicago, etc. Ry. Co. v. Bank, 250, 256. Chicago, etc. Ry. Co. v. Burling- ton, etc. Ry. Co., 401. Chicago, etc. Ry. Co. v. Dey, 399. Chicago, etc. Ry. Co. v. Fosdick, 469. Chicago, etc. Ry. Co. v. N. Y., L. E. etc. R. Co., 401. Chicago, St. L. etc. Co. v. Packett, 395. Chicago, St. L. etc. Co. v. Pullman Southern Car Co., 400. Child V. New York, etc. Ry. Co., 450. Childs V. Emerson, 55. Childers v. Loudin, 416. Childers v. West, 344. Chipman v. City of Hartford, 144. Chipman v. Morrill, 445. Chipman v. Railway Co., 102. Chipman v. Sabatton, 393. Chisholm v. Johnson, 180. Chouteau et al. v. Rice et al., 237. Chowick V. Dimes, 276. Christian v. Vance, 399. Christie v. Board of Trade, etc., 400. Christie v. Herrick, 64. Church V. Hatch, 250. Church V. Holcomb, 246, 250, 304. Church V. Kelsey, 314. Church V. Pennington, 300. Cicotte V. Gagnier, 304. Cicotte V. Stebbins, 438. xxxu TABLE OF OASES CITED. Ref orenoea are to sections. Cincinnati, etc. Ry. Co. v. Sloan, 385. City of Seattle v. McDonald, 439. Citizens' Bank v. Los Angeles, etc. Co., 469. Citizens' Coach Co. v. The Cam- den, etc. Co., 4'01, 402, 403. Citizens', etc. Co. v. Strauss, 477. Citizens' Sav. Bank v. Circuit Judge, 123. Citizens' Sav. Bank v. Foster, 447. City Bank v. Bangs, 382. City of Detroit v. Detroit Ry. Co., 223. City of Evansville v. Prazer, 26. City of Georgetown v. Alexandria Canal Co., 400. City of London v. Nash, 430. City of New Orleans v. Fisher, 491. City of Newton v. Levis, 401. City of Oconto v. National, etc. Works, 498. Oaflin V. McDermott, 489. Glapp V. Cooper, 447. Clapp V. Galloway, 408. Clapp V. Thaxter, 328, 332, 341. Clapper v. House, 332. Clarendon v. Hornby, 416. Clark V. Bell, 328. Clark V. Clark, 218, 223. Clark V. Coal, etc. Co., 489. Clark V. Congregational Church, 250. Clark V. Davis, 495, 496. Clark V. Fosdick, 441. Clark V. Hogle, 98. Clark V. Jones, 183. Clark V. Killian, 343. Clark V. McGhee, 392. Clark V. Phelps, 185. Clark V. Reyburn, 475. Clark V. Saginaw City Bank, 185. Clark's Ex'rs v. Van Riemsdyk, 207. Clarke v. Land Co., 109. Ciarkev. Mathewson, 271. Clarke V. White, 207, 208. Clarkson v. De Peyster, 489, 491. Clason V. Corley, 103. Claude v. Handy, 413. Clay V. Hammond, 423. Clayton v. Mitchell, 362. Clayton v.Whlttiker, 462. Claxton V. Claxton, 54. Cleland v. Campbell et al., 9. Cleland v. Cas,?rain, 39, 428. Cleland v. Clark, 150. Clews v. Jamieson, 439. Clifford V.Coleman, 249. ClifCord V. Heald, 117. Clinnin v. Ranch, 327. Cloud V. Greasley, 117. Cloyd V. Trotter, 86. Club V. Clough, 428. Clyde V. Railway Co., 294, 295. C, M. etc. Ry. Co. v. Packet Co., 395. Coach V. Adsit, 237. Coach V. Circuit Judge, 223, 225. Coatesville, etc. Co. v. XJwchlan, etc. Co., 400. Coats V. Woodworth, 439. Cobb V. Rice, 377, 379. Cochran v. Cochran, 501. Cochran v. Couper, 350. Cochran v. McCleary, 400. Cochrane v. Adams, 112. Cock V. Hobb, 346. Cocke V. Minor, 308. Cocks V. Verney, 492. Coddington v. Tappan, 388. Codrington v. Houlditch, 281. Codwise v. Taylor, 328. Coe V. Louisville, etc. Ry. Co., 401. Cceur d' Alene, etc. Co. v. Miners' Union, 400. Coifey v. Dubois, 362. Coffin v. Lesster, 85. Cogswell V. Armstrong, 382. Cohen v. Meyers, 390. Cohen v. Sharp, 425. Cohens v. Virginia, 58. Coiron v. Millaudon, 49. Colclough V. Evans, 127. Cole, etc. M. Co. v. Virginia, etc. Co., 401. TABLE OF CASES CITED. XXXIU References are to seotiona. Cole V. Johnson, 327. Cole V. Malcolm, 485. Coles V. Forrest, 465. Coleman v. Butt, 130. Coleman v. Livingston, 288. Coleman v. Martin, 63. Coleman v. San Rafael, 427. Colgate V. Compagnie Francaise, 197. Collins V. Carlyle, 467. Collins Mfg. Co. v. Marcy, 400. Colly er v. Cook, 468. Colman v. Railway Co., 400. Coldiron v. Ashville, etc. Co., 208. Colonial, etc. Co. v. Hutchinson, etc. Co., 466. Colton V. Ross, 40, 46. Colton V. Rupert, 85. Columbia College v. Lynch, 411. Columbia Nat. Bank v. Baldwin, 500. Columbian Athletic Club v. State of Indiana ex rel., 400. Columbus, etc. Co. Appeals, 322. Colville V. Colville, 351. Commercial Assur. Co. v. New Jersey Rubber Co., 249, 260. Commercial, etc. Co. v. Everhart, 83. Commonwealth v. CuUen, 207. Commonwealth v. Insurance Co., 394. Commonwealth v. Reading Bank, 418. Cone V. Tuscaloosa Mfg. Co., 81. Congdon v. Cahoon, 439. Conn V. Penn, 327. Connally v. Peck, 250. Connecticut Ins. Co. v. Smith, 252. Connell v. Reed, 400. Conner v. Welsh, 449. Conover v. Jeffrey, 490. Conroy v. Woods, 492. Consolidated, etc. Co. v. City of Santiago, 465. Consolidated, etc. Co. v. Staples, 379. Contee v. Lyons, 343. Continental Life Ins. Co. v. Webb, 215. Conway v. Township Board, 402. Conway v. Wilson, 285. Conyers v. Mericles, 463. Coogan V. McCarran, 211. Cook V. Bartholomew, 460. Cook V. City Nat. Bank, 396. Cook V. Cook, 166. Cook V. Dews, 189. Cook V. Finch, 100. Cook V. French, 338. Cook V. Mancius, 146. Cook V. Wheeler, 213. Cooke V.Hall, 151. Cooke V. Husband, 418. Cooley V. Harris, 218. Coombs V. Carr, 477. Coon V. Cronk, 365. Cooney v. Cooney, 392. Cooper V. Bigly, 474, 482. Cooper V. Gum, 250. Cooper V. Reynolds, 86. Cooper V. Smith, 467. Cooper V. Ulmann, 465. Coosaw Mining Co. v. Farmers' Mining Co., 298. Copeland v. Bruning, 355. Copeland v. McCue, 201. Copper V. Wells, 434. Corbin v. Patton, 207. Corbus V. Alaska, etc. Co., 31. Corinth v. Lock, 399. Cork V. Wilcox, 165. Cornelious v. Halsey, 467. Corning v. Burton, 466. Cornwell Mfg. Co. v. Swift, 39, 459. Corporation, etc. v. Elden, 301. Corrigan v. Foster, 445. Cortelyou v. Jones, 465. Coryell v. Klehm, 117. Cottle V. Leitch, 458. Coudert v. Coudert, 447. County Bank v. Goldtree, 473. County Com'rs v. City of Fred- erick, 9. County of Cook v. Great Western Ry. Co., 238. XXXIV TABLE OF OASES CITED. Ry. Co., County, etc. v. Bridge Co., 423. Courtland, etc. Co. v. Grand Trunk Ry. Co., 429. Covell V. Cole, 101, 304. Cowell V. Springs Co., 400. Cowles V. Whitman, 400. Cowman v. Lovett, 125. Cox V. Bank, etc., 353. Cox V. Douglass, 399. Cox V. Leviston, 219, 223. Cox V. Volkert, 385. Cox V. Westcoat, 250. Cox V. Wheeler, 447. Cozine v. Graham, 117, 135, 184. Craft V. Thompson, 110. Craig V. Jennings, 441. Craig V. Miller, 64. Craig V. Phillips, 370. Cramer v. Her, 392. Crane v. Deming, 130. Crane v. McDonald, 372. Crass V. Memphis, etc 370, 380. Crawford v. Edwards, 466. Crawford v. Fisher, 373. Crawford v. Foster, 85. Crawford v. Jones, 445. Crawford v. Osmun, 322. Crawford v. Paine, 406. Crawford v. Tyrrell, 400. Crawshay v. Thornton, 372. Craythorne v. Swinburne, 445. Cresap v. Kemble, 399. Crescent Mining Co. King, 406. Crim V. Walker, 489. Crippendorf v. Hyde, 63 Crocker v. Dillon, 132. Crocker v. Higgins, 48. Crocker v. Huntzicker, 492. Crogan v. Schiele, 111. Croghan v. Minor, 468. Crombie v. Order of Solon, 390. Crompton v. Bearcroft, 388. Cross V. De Valle, 217. Crowell V. Botsford, 74. Crowfoot V. Mander, 271. Crook V. Andrews, 428. References are to sections. Crumrine v. Crumrine, 43&. Cudebac v. Strong, 86. Cullen V. O'Hara, 64. Cullison V. Bossom, 130. Cumberland, etc. Co. v. Glass, etc.. Ass'n, 400. Cunningham v. Freeborn, 200, 209.. Cunningham v. Pell, 53. Curley v. Tomllnson, 288. Curling v. Townsend, 388. Curow V. Mowatt, 64. Curran V. Campion, 114. Curry v. Glass, 492. Curtis V. Albee, 418. Curtis V. Masten, 183. Curtis V. Smith, 444. Curtis V. Tyler, 466. Cushman v. Bonfield, 327. Cushney v. Henry, 437. Cutter V. Iowa Water Co., 114. Cuyler v. Ensworth, 445. Dacosta v. Dibble, 146, 180. Daingerfield v. Smith, 102. Daken v. Union Pac. Ry. Co., 185.. Dakin v. Watson, 375. Dale V. Turner, 426. Daley v. Smith, 431. Dalhoff V. Coffman, 296. Dall V. Confidence Mining Co., 410i. Dameron v. Jameson, 412. Damouth v. Klock, 359. Dandridge v. Curtis, 64. Danforth v. Smith, 408. Daniel v. Palmer, 150. Daniels v. Railway Co., 86. Darling v. Hurst, 302. Darling v. Jewell, 365. Darlington's Appeal, 246. Dary v. Kane, 464. D. A. Tompkins Co. v. Catawba Mills, 388. David V. Davis, 256. David V. Shephard, 40. Davidson v. Murphy, 15. Davidson v. Thompson, 413. Davidson's Ex'rs v. Johnson, 146, 147, 166, 176. Davles v. Da vies, 330. V. Silver 215. TABLE OF OASES CITED. XXXV References are to sections. Davis V. American, etc. Union, 222. Davis V. City of Boston, 425. Davis V. Coburn, 439. Davis V. Cooli, 212. Davis V. Davis, 67, 98, 380. Davis V. Dean, 489. Davis V.Gray, 385, 394. Davis V. Hone, 430. Davis V. Mapes, 183. Davis V. McCullougli, 442. Davis V. New York, 49. Davis V. Peabody, 49. Davis V. Phillips, 421. Davis V. Richmond, 86. Davis V. Speiden, 346. Davis V. Sullivan, 295. Davis V. "Walton, 500. Davoue v. Fanning, 160. Dawson v. Overmyer, 475. Dawson v. Sims, 492. Day V. Dunham, 328. Day V. Hale, 328. Day V. Wetherby, 49. Dayton v. Dayton, 327. Dean v. Mumford, 438. Dear v. Sworder, 215. Dearth v. National Bank, 249. Debell v. Foxworthy, 350. De Castro v. Compagnie, etc., 81. Decker v. Decker, 490. De Ford v. Hyde, 36. Degener v. Stiles, 471. De Godey v. Godey, 406. Degroot v. Jay, 394. Deitzler v. Mishler, 447. Delacey v. Hurst, 246. De La Cuesta v. Calkins, 363. Delany v. Mansfield, 384. Delaware, etc. Co. v. Central Stockyard Co., 401. Delaware, etc. Co. v. Gillett, 419. Delehanty v. Warner, 400. Deloraine v. Browne, 151. De Louis v. Meek, 130. Demaray v. Little et al., 473. Demattos v. Gibson, 431. DeMontmorency v. Devereaux, 164. Denison v. Bassford, 192. Dennis v. Hemingway, 463, 472. Dennison v. Crofts, 88. Denny v. Ashley, 86. Denny V. Denny, 56. Densmore v. Savage, 61, il4. Daring v. Winchelsea, 445. Deseret National Bank v. Bunton, 418. Des Moines Nat. Bank v. Harding, 483. Desot V. Ross, 447. Detroit v. Circuit Judge, 406. Detroit v. Martin, 425. Detroit Savings Bank v. Truisdail, 336, 339, 482. Detroit, etc. Ry. Co. v. Common Council, 26. Detroit, etc. Co. v. Renz, 100, 329, 331. Deutsch Roemisch Katholischer, etc. V. Lartz, 83. Devereaux v. Cooper, 183. Devol V. Mcintosh, 400. Dewar v. Spence, 416. Dewey Hotel Co. v. United States, etc. Co., 399. Dewick v. Dodson, 399. De Winton v. Mayor, 394. Dewolf V. Long, 238. Dexter v. Arnold, 348, 356. Dexter v. Gordon, 301. Dexter v. Ohlander, 207. Dias V. Bouchaud, 499. Dias V. Merle, 127. Dickerman v. Northern Trust Co., 462. Dickerson v. Hodges, 233. Diefenthaler v. Hall, 302. Dietzler v. Mishler, 447. Dill V. Shahan, 213. Dillard' v. Dillard, 39, 114. Dillon V. Barnard, 110. Dills V. Doebler, 400. Dimond v. Rogers, 487. Dinsmore v. Adams, 335. Dinsmore v. Grossman, 68. Dix V. Briggs, 490, 493. Dodd V. Flavell, 405. ^XXVl TABLE OF CASES CITED. References are to sections. Dodd V. Winn, 445. X)odge V. Insurance Co., 151. Doggett V. Emerson, 336. Doggett V. Hart, 442. Doherty v. Holliday, 493. Donaldson v. Wright, 110. Donnelly v. Ewarts, 253. Donnor v. Quartermas, 410. Donohue v. Ladd, 429. Donovan v. Finn, 488. Dpolittle V. Gookin, 308. Doonan v. Glynn, 250. Door V. National Bank, 314. Door V. Peters, 447. Dormer v. Fortesque, 108. Dorn V. Colt, 465. Dorn V. Farr, 322. Dorn V. Fox, 373. Dorsheimer v. Rorback, 334. Doty V. Irwin, 498. Dougherty v. Randall, 465. Douglas V. Phenix, 110. Douglas V. Sherman, 274, 277, 280. Douglas V. Wiggans, 400. Douglass V. Boardman, 60. Douglass V. County of Pike, 312. Douglass V. Martin, 439. Dow V. Jewell, 442. Dow V. Northern Ry. Co., 400. Downer v. Howard, 330. Dows V. McMichael, 140. Draper v. Davis, 400. Drew V. Beard, 246. Drew V. Dyer, 490. Driggs V. Garretson, 164. Droste v. Hall, 131, 132. Drosten v. Mueller, 365. Driver v. White, 189. Du Bois V. Union Dime Sav. Inst., 370. Dubs V. Dubs, 408. Duck V. Wilson, 463.^ Duckett V. Bank, 440. Ducktown, etc. Co. v. Barnes, 11. Dudley V. Dudley, 316. Dudley v. Eastman, 310. Duff V. Fisher, 434. Dugeon v. Watson, 145. Dukes V. Bush, 431. Dull V. Blackman, 86. Dummer v. Chippenham, 191. Dunbar v. Harrison, 487. Dunfee v. Childs, 355. Dunham v. Jackson, 207. Dunlay v. Dunseth, 482. Dunn V. Allen, 278. Dunn V. Buckley, 483. Dunn V. Clarke, 224. Dunn V. Dunn, 88. Dunn V. Keegin, 337. Dunton v. McCook, 460. Dunton v. Sharp, 462. Durfee v. McClure, 209. Durant v. Essex, 318. Durham v. Stephenson, 126. Durham v. Walker, 328. Dutton V. Thomas, 498. Duvale v. Duvale, 431. Drury v. Roberts, 390. Dwen V. Blake, 477. Dwight v. Humphreys, 122. D'Wolf V. Pratt, 36. Dyer v. Dean, 238. Dyer v. Martin, 187. Dyer v. Vinton, 413. Dzyalnski v. Bank, 124. Eager v. Price et al., 264. Eagle Fire Ins. Co. v. Cammet et al., 64. Eakin v. Hawkins, 126. Eakin v. Herbert, 473. Eames v. Manley, 151. Eameston v. Lyde, 493. Earl of Derby v. Duke of Athol, 144. Earl of" Portsmouth v. Fellows 41. Earl of Suffolk v. Green, 108. Earle v. Circuit Judge, 489. Earle v. Grover, 489. Earle v. McCartney, 316. Earle v. Turton, 413. Earll V. Metropolitan, etc., ISO. Eastman v. Bank, 60. Eastman v. Batchelder, 280. Eastman v. Savings Bank, 114. TABLE OF CASES CITED. XXXVll References East Saginaw Ry. Co. v. Wildman, 399. East St. Louis, etc. Ry. Co. v. People, 38. East Tenn. etc. Co. v. Southern, etc. Co., 362. Eastern Trust Co. v. American Ice Co., 471. Eaton V. Dicliinson, 343. Eaton V. Eaton, 98, 331, 493. Eaton V. Truesdail, 463. Eaton V. Trowbridge, 425. Eberle v. Heaton, 39. Eberts v. Fislier, 413. Eberts v. Girding, 447. Ecliert V. Bauert, 224. Ecton V. Lexington, etc. Ry. Co., 431. Edgell V. Felder, 84, 91. Edgell V. Smith, 423. Edison v. Electric Light, etc. Co., 271. Edsell V. Briggs, 9. Edsell V. Nevins, 150. Edson V. McGraw, 363. Edwards v. Allouez Mining Co., 398, 399. Edwards v. Bay State Gas Co., 31. Edwards v. Hulbert, 120. Edwards v. Remington, 458. Eidermiller Ice Co. v. Guthrie, 399. Einstein v. Schnebly, 35, 455. Eisel V. Haves, 400. Elam V. Haden, 420. Eldred v. American, etc. Co., 106. Electric Co. v. Le Grande, etc. Co., 465. Electric Lighting, etc. Co. v. Mo- bile, etc. Ry. Co., 399. Elk Fork, etc. Co. v. Foster, 392. Elkhart Nat. Bank v. Northwest- ern, etc. Co., 493. Ellingwood v. Stevenson, 286. Elliott V. Balcom et al., 348. Elliott V. Pell, 327. Elliott V. Trahern, 237. Ellis V. Fairbanks, 462. Ellis V. Land, etc. Co., 9. are to sections. Ellis V. Saloman, 431. Elliston V. Morrison, 223. Ellsworth V. Curtis, 229, 230. Elmendorf v. Taylor et al., 50, 169.. Elwell V. Sylvester, 350. Elzas V. Elzas, 345. Embury v. Klenn, 338. Emeric v. Alvarado, 359. Emerson v. Township of Walker. 33. Emerson v. Western Union, etc.. Co., 144. Empire Distilling Co. v. M'Nulta, 295. Enfield, etc. Co. v. Connecticut River Co., 398. Englar v. Offutt, Trustee, 440. Engle V. White, 431. English V. The People, 390. Enoe V. Christ, 401. Ensworth v. Lambert, 263, 264 Equitable, etc. Soc. v. Laird, 256. Equitable Guaranty, etc. Co. v. Donahoe, 400. Equitable Life Ins. Co. v. Gleason, 464. Equitable Life, etc. Soc. v. Patter- son, 123. Ernst V. Almira, etc. Co., 130. Ernst V. Harris, 455. Ernst V. Merritt, 388, 487. Erwin v. Parham, 431. Eslava v. Mazange, 285. Essex Paper Co. v. Greacen et al.,. 121. Estes V. Bridgforth, 77. Eureka v. Bresnahan, 83. Eureka, etc. Co. v. California, etc. Ry. Co., 399. Eustis V. Bolles, 362. Eustis V. Holmes, 289. Evans v. Baker, 462. Evans v. Dunn, 324. Evans v. English, 468. Evans v. Fisher, 483. Evans v. Grand Rapids, etc. Co., 31.. Evans V. Kelly, 327, 459. Evans v. Laughton, 492. XXXVIU TABLE OF OASES CITED. References Evans v. Trust Co., 476. Evarts v. Becker, 337. Eveland v. Stephenson, 67, 117. Everett v. Drew, 110. Everton v. Booth, 482, 485. Evitt V. Price, 400, 401. Excelsior, etc. Co. v. Brown, 400. Expard v. Vandermissen, 344. Ex parte Boyd, 196. Ex parte Crouch, 400. Ex parte Jordan, 295, 444. Ex parte Norton, 359, Ex parte Railway Co., 227. Ezzell V. Watson, 481. Paher v. Matz, 489. Faine v. Brown, 430. Fajrbank V. Cudworth, 471. Fairbank v. Leary, 108. Fairbanks v. Belknap, 488. Fairbairn v. Middlemiss, 208. Fairfield, etc. Co. v. Bradbury, 401. Fairman v. Farmer, 463. Fallowes v. Williamson, 276. Farley v. Blood, 373. Farley V. Kittson, 133, 135, 176. Farmers', etc. Bank v. Bronson, 468. Farmers', etc. Bank v. Fidelity, etc. Co., 447. Farmers', etc. Bank v. Griffith, 207. Farmers', etc. Bank v. Little, 271. Farmers', etc. Bank v. Polk, 50. Farmers', etc. Co. v. Railway Co., 294. Farnham v. Brooks, 151. Farnham v. Campbell, 425, 487. Farnham v. Clements, 117. Farrand v. Long, 197. Farrar v. Powell, 39, 114. Farrell v. Parlier, 461. Farrer v. "United States, 92. Farson v. Sioux City, 115. Farwell v. Johnston, 121, 434. Farwell v. Tillson, 155. Faulder v. Stuart, 183. Faulkner v. Davis, 50. Faulkner v. Thompson, 117. are to sections. Faxton v. Faxton, 462. Fayerweather v. Ritch, 297. Feller v. Winchester, 194. Fellows V. Fellows, 476, 493. Female Ass'n v. Beakman, 441. Fenn v. Craig, 50. Fenton v. Miller, 416. Fenton v. Steere, 411. Fenton v. Wendell, 416. Ferguson v. O'Harra, 173, 185. Ferris v. American Brewing Co., 400. Ferris v. Hogland, 256. Pesler v. Brayton, 399. Fidelity Trust, etc. Co. v. Mobile, etc. Ry. Co., 224. Field v. Maghee, 52, 145. Field v. Middlesex Banking Co., 246. Field V. Sands, 499. Field V. Schiefferlin, 217, 221. Field V. Thistle, 466. Field v. Western Springs, 399. Fields V. Helmes, 40, 475. Fight V. Holt, 416. Finch et al. v. Martin et al., 235. Findlay v. Hinde, 122. Finegan v. Theisen, 421. Fink V. Patterson, 492. Finley v. Cathcart, 416. , Finnin v. Malloy, 392. First Cong. Soc. v. Trustees, etc., 113. First Nat. Bank v. Binninger, 372. First Nat. Bank v. Brennaman, 417. First Nat. Bank v. Dwight, 497. First Nat. Bank v. Hunton, 447. First Nat. Bank v. Radford, 465. First Nat. Ins. Co. v. Salisbury, 63. Fish V. Miller, 140, 179. Fisher v. Graham, 498. Fisher V. Holden, 261. Fisk V. Stewart, 460. Fitzburgh v. Everington, 388. Fitzgerald v. Elliott, 374. Pitzgibbon v. Barry, 48. Fitzhugh V. Maxwell, 460. TABLE OF OASES OITED. XXX IX Keferencea are to sections. Titzhugh V. McPherson, 256. riagg V. Mann, 172. Flagg V. Thurston, 414. Flaherty v. Cramer, 440. Flanders v. Chamberlain, 327. Fleece v. Russell, 130, 218, 224. Fleenor v. Driskill, 359. ii'leming v. Holt, 51. Fletcher v. Grover, 445. Fletcher v. Holmes, 327. Fletcher v. Peck, 327, 360. Florence Sewing Machine Co. v. Grover, etc. Co., 429. Florida Southern Ry. Co. v. Hill, 46. Floyd T. Nangle, 337. Floyer v. Lavington, 475. Flynn v. Third Nat. Bank, IDS, 130. Fogg V. Merrill, 256. Fogg V. Price, 117. Fogle V. Michael Church, 431. Foley V. Hill, 165. Folkerts v. Powers, 250. Folsom V. Ballard, 405. Foote V. Lathrop, 80. Ford V. Adams, 86. Pord V. Coleman, 84. Ford V. Daniels, 418. Forrest v. Railway Co., 400. Foster v. Cook, 40. Foster v. Foster, 327. Foster v. Newton, 411. Fouse V. Vandervort, 358. Fout V. Lucas, 400. Fowle/ V. Brooks, 463. Fowler v. Brown, 84. Fowler v. Hamill, 324. Fowler v. Lee, 374. Fowler v. Parsons, 447. Fox V. Hale, etc. Mining Co., 38. Fox V. Pierce, 31. Fox V. Sutton, 374. Fraier v. Jenkins, 418. Fralich v. Despar, 400. Francis v. Francis, 330. Franco v. Franco, 64. Franklin v. Wilkinson, 344. Franklin Bank Note Co. v. Rail- way Co., 62. French v. Commercial Bank, 46. French v. De Bow, 468. French v. Gapen, 63. French v. Gifford, 390. French v. Shoemaker, 324. French at al. v. Shotwell, 137. French Lumbering Co. v. Theri- ault et ux., 492. Freehold, etc. Ass'n v. Brown, 233, Freeman v. Clay, 342. Freeman v. Henderson, 361. Freeman v. Howe, 400. Freeman v. Michigan State Bank, 244. Freeman v. Pullan, 327. Fredericks v. Huber, 401. Freer v. Davis, 389. Friley v. Hendricks, 350. Frosts V. Yonkers Savings Bank, 485. Fryberger v. Bervan, 501. Frye v. Bank of Illinois, 328. Frye v. Persall, 423. Ft. Wayne Electric Corp. v. Frank- lin, etc. Co., 341, 347. Fulgham v. Morris, 462. Fuller V. Foote, 85. Fuller V. Jackson, 345. Fuller V. Knapp, 45. Fulton V. Greacen et al., 133, 281. Fulton Bank v. Beach, 189, 192. Fulton Bank v. New York, 191. Fulton Co. V. Mississippi, etc. Co., 188. Funk V. Avery, 377. Furnald v. Glenn, 325. Furniss v. Brown, 256. Ga ge v. Kaufman, 44, 428. Gage V. Reid, 412. Gage V. Riverside Trust Co., 400. Gage V. Williams, 425. Galbraith v. Galbraith, 301. Gall V. Gall, 451. Gallagher v. Roberts, 108. Galpin v. Page, 451. Games v. Robb, 110. xl TABLE OF CASES CITED. Eeferenoes Gamewell Fire Alarm Tel. Co. v. Mayor, etc., 197. Gannett v. Blodgett, 450. Gardner v. California, etc., 419. Gardner v. Cohn, 470. Gardner v. Knight, 257, 420. Gardner v. Terry, 426. Garlick v. Strong, 123. Garret v. Kansas City Coal Co., 3G3. Garretson v. Weaver, 388. Garrett v. Garrett, 400. Garrett v. Strubel, 85. Garrison v. Cox, 411. Garrison v. Little, 441. Garsed v. Beall, 316. Gary v. N. W. etc. Ass'n, 86. Gatling v. Newell, 46. Gault V. Hoagland, 100. Gaunt V. Froelick, 46. Gause v. Perkins, 399. Gay V. Parpart, 410. Gay V. Skeen, 126. Gaynor v. Blewett, 387. Geary v. Sheridan, 97, 98, 331. General Electric Co. v. Le Grande, etc. Co., 469. General Gas Co. v. Stuart, 403. General Ins. Co. v. United States Ins. Co., 485. Gentry v. Gentry, 433. George v. Electric Lt. Co., 327. George v. Johnson, 338. George v. Nowlan, 425. George et al. v. Pilcher, 382. Georgia v. Brailford, 401. Geraty v. Druiding, 362. German v. Machin, 211, 414. German-American Seminary v. Kiefer, 32. German Nat. Bank v. Barham, 475. German Reformed Church v. Von Pueohelstein, 116. Gernt v. Cusack, 38. Giant Powder Co. v. Cal. etc. Works, 335, 336. Gibbons v. Pemberton, 491. Gibbs V. Insurance Co., 86. are to sections. Gibson V. Crehore, 335, 338. Gibson V. Goldthwaite, 372, 379. Gibson v. Rease, 103. Gibson v. Rees, 256. Gilbert v. Cooley, 465. Gilbert v. Galpin, 183. Gilbert v. Murphy, 135. Gilbert v. Washington City, etc. Ry. Co., 391. Giles V. Giles, 270. Gilkie v. Page, 183, 187. Gilman, etc. v. New Orleans, etc. Ry. Co., 223. Gilmer v. Felhour, 225. Gill V. Cook, 376. Gill V. Everman, 26. Gill V. Weston, 411. Gillam v. Nussbaum, 392. Gillespie v. Moon, 418. Gillette v. Doheny, 128. Gilliam v. Baldwin, 320. Gillick V. Williams, 401. Gilmore v. Ham, 83. Gilpatrick v. Glidden, 324. Gish V. Jamison, 431. Gladden v. American Mortgage Co., 80. Glascott V. Lang, 401. Glass V. Hulbert, 117. Glassington v. Thwaites, 229. Gleason v. Kinney's Adm'r, 476. Gleaves v. Morrow, 202. Glidden v. Norvell, 68, 112. Gloucester, etc. Co. v. Russie, etc. Co., 430. Glover v. Hargadine, etc. Co., 121. Glover V. Jones, 345, 347, 351, 357. Glover v. Patten, 64. Goddard v. Stockman, 110. Goddard v. Wilde, 400. Godden v. Kimmell, 117. Godfrey v. Godfrey, 413. Godfrey v. Terry, 113. Godfrey V. White, 411. Godkin v. Cohn, 438. Goff V.Kelly, 218. Goff V. Price, 223. Gogherty v. Bennett, 26. TABLE OF OASES OITED. xli References are to sections. Goldberg v. Kirschstein, 431. Goldtree v. McAllister, 464. Goltra V. Sanasack, 418. Goncelier v. Foret, 441. Goodall V. Mopley, 465. Goodman v. Winter, 256. Gooden v. Vinke, 471. Goodenow v. Curtis, 250. Goodnough v. Gatch, 394. Goodrich v. Pendleton, 198. Goodyear v. Bourn, 177. Goodwin v. Bishop, 197. Goodwin v. New York, etc. Co., 402. Gordin v. Bowing, 418. Gordon v. Johnson, 213. Gordon v. Lowell, 888. Gordon v. Mansfield, 400. Gordon v. Reynolds, 155, 250. Gorham v. Arnold, 460. Gorham v. Wing, 304. Gott V. Hoschna, 9. Gotzian v. Shakman, 482, 485. Gould V. Castle, 337. Gould V. Edison, etc. Co., 183. Gould V. Gould, 169. Gould V. Spencer, 193. Gould V. Stanton, 221. Gove V. Pettis, 122. Grady v. Railway Co., 83. Grady v. Robinson, 183. Graff V. Bonnett, 494. Graffam v. Burgess, 250. Graham v. Elmore, 50, 327. Graham v. Graham, 440. Graham v. Mason, 183, 185. Grand Rapids, etc. v. Sparrow, 426. Grant v. City of Davenport, 391. Grant v. Duane, 475. Grant v. Insurance Co., 318. Grant v. Phoenix Ins. Co., 359. Graves v. Blondell, 185. Graves V. Boston, etc. Co., 418. Graves V. Niles, 251, 260, 265, 269. Gray v. Brlgnardello, 326. Gray v. Finch, 111. Gray v. Regan, 120, 183. Grazebrook v. M'Creedie, 490. d Great North of England, etc. R. Co. v. Clarence, etc. Co., 401. Great Western Ry. Co. v. Birming- ham Ry. Co., 398, 401. Greatrex v. Greatrex, 401. Greeley v. De Cottes, 468. Gi-eeley v. Smith, 271. Green v. Breckinridge, 328. Green v. Green, 68. Green v. Harris, 164. Green v. Hicks, 498. Green v. Paul, 26. Green v. Richards, 132. Green v. Stone, 421. Green & Trammell v. Trieber, 497. Greenberg v. Holmes, 405. Greene v. Star Cash Co., 395. Greenley v. Hovey, 112, 117. Greenwalt v. Duncan, 225. Gregg V. Brower, 246. Gregory v. Stetson, 50. Grey v. Ohio, etc. Ry. Co., 398. Grider v. Payne, 327. Griffee v. Mann, 359. Griffin v. Fries, 214. Griffin v. Griffin, 213, 215. Griffin v. McGavin, 490. Griffing v. Griffing Iron Co., 146, 388. Griffith V, Blackwater, 314. Griffith V. Griffith, 172, 184. Griffith V. Merritt, 213. Griggs V. Gear, 344. Grim v. Wheeler, 251. Grissom v. Moore, 428. Griswold v. Fuller, 101, 425. Griswold v. Simmons, 225. Groesbeck v. Bennett, 421. Groosback v. Brown, 419. Groce v. Field, 327. Grubb V. Starkey, 436. Grumley v. Webb, 165. Guarantee, etc. Co. v. Powel, 469. Guardian" Soc. v. Roosevelt, 399. Gubbins v. Laughtanschlager, 249, 313. Guernsey v. Rexford, 163. Guest V. Hewett, 295. xlii TABLE OF CASKS CITED. Keferences Guild V. Butler, 445. Guild V. Hull, 316. Guilford v. Crandall, 463. Guinon v. Knapp, 474. Gulick V. Fisher, 406. Gun V. Prior, 142. Gi;nderman v. Gunnison, 330. Gunter v. Smith, 481. Gusdorff V. Schleisner, 110, 406. Guyton v. Terrill, 493. Haberman v. Kaufer, 202. Hackley v. Mack, 213, 215, 218, 223. Hackwortli v. Layne, 428. Hadden v. Dooley, 401. Hadden v. Spader, 486. HafE V. Jenney, 154. Hager v. Shindler, 492. Hager v. Whitmore, 250. Hagner v. Heyberger, 400. Hagttirop V. Hook, 187, 256. Hahn V. Kelly, 15. Hahn v. Salmon, 492. Haight V. Proprietor, etc. Co., 191. Haine v. Hall, 399. Haines v. Beach, 466. Halbert v. Grant, 489. Hale V. White, 388. Hale et al. v. Hale et al., 50, 53, 85. Halfhide v. Robinson, 56. Hall V. Arnott, 475. Hall V. Baldwin, 380. Hall V. Calvert, 126, 130. Hall V. Clagett, 238. Hall V. Hall, 431, 477. Hall V. Home Bldg. Co., 194, 260, 269. Hall V. Hudson, 333. Hall V. Piddock, 410. Hall V. Vernon, 411. Hall V. Wescott, 481. Hall Lumber Co. v. Gustin, 219, 224. Hallett V. Cumston, 402. Plallett V. Hallett, 50. Hallinan v. Hearst, 439. Hallman v. Hallman, 483. Hallorn v. Trum, 499. Halsey v. Goddard, 114. are to sections. Halsteadv. Forest Hill Co., 351. Halstead v. Shepard, 114. Hamersley v. Lambert, 221. Hamilton v. McLean, 414. Hamilton v. Savannah, etc. Ry. Co., 327. Hamilton v. Whitridge, 132. Hammett v. White, 477. Hammond v. Place, 248, 260, 261, 335. Hammond v. State Bank, 46. Hammond v. Winchester, 399. Hancock v. Craddock, 416. Hankey v. Simpson, 164. Hanley v. Noyes, 163. Hanly v. Watterson, 399. Hanna v. McLaughlin, 455. Hannah, etc. Co. v. Mosser, 88, 91. Hannaman v. Wallace, 208. Hanneman v. Richter, 411. Hansford v. Hansford, 87. Hardester v. Sharretts, 85. Hardin v. Boyd, 178, 245, 250, 251. Harding v. Handy, 50, 314. Harding v. Hart, 365. Hards v. Burton, 320. Hardv;rick v. Bassett, 209, 242. Hardy v. MoClellan, 386. Hargreaves v. Menken, 463. Hargroves v. Nix, 353. Karkrader v. Wadley, 400. Harland v. Jones, 447. Harlow v. Lake Superior Iron Co., 151. Harmon v. Kelley, 413. Harold v. Bacon, 438. Harper v. Campbell, 117, 155. Harrigan v. Bacon, 250. Harriman v. Railway Co., 81. Harrington v. Becker, 276, 280. Harrington v. Brewer, 304. Plarris v. Harris, 455. Harris v. Pollard, 281. Harris v. Smith, 421. Harrison v. Bradley, 164. Harrison v. Brewster, 219. Harrison v. Farmers', etc. Co., 493. Harrison v. Farrington, 164, 173, TABLE OF CASES CITED. zliii References Harrison v. Palmer, 491. Harrison v. Ridley, 278. Harrison v. Wallton, 50. Harrison's Adm'x v. Johnson, 466, Hart V. Burch, 362. Hart V. Lindsey, 331, 337. Hart V. McKeen, 39, 40. Hart V. Small, 100, 284, 337. Hart V. Ten Eyck, 207. Hart V. Wandle, 474. Hartley v. Bloodgood, 493. Hartman's Appeal, 48. Hartpole v. Walsh, 480. Hartshorn v. Day, 9. Hartshorne v. Hartshorne, 408. Harvey v. Harvey, 50. Harvey v. Richmond Ry. Co., 30, 125. Harwood v. Railway Co., 353. Harwood v. Underwood, 475. Haskell v. Galbraith, 351. Hastie v. Aiken, 359. Hastings v. Cropper, 379. Hatch V. Eustapheive, 67. Hatch V. Spofford, 146. Hatch V. Village of St. Joseph, 130, 427. Hathaway v. Mitchell, 399. Hathaway v. Scott, 192, 290. Haughwout V. Murphy, 172. Haven v. Foster, 418. Havens v. Willis, 447. Havner v. Stephens, 458. Hawes v. Detroit, etc. Ins. Co., 473. Hawes v. Dobbs, 183. Hawes v. Oakland, 49. Hawes v. Weeden, 475. Hawes v. Withrow, 399. Hawkins v. Chapman, 273. Hawkins v. Crook, 97, 98. Hawley v. James, 408. Hayden v. Boothe, 158. Hayes v. McReynolds, 413. Hayes v. Servis, 467. Hayes v. Ward, 446, 485. Hayes v. Willio, 431. Hayes's Appeal, 413. Hayman v. Cameron, 373. are to sections. Haymond v. Camden, 322. Hays V. Hetherly, 130. Hazard v. Durand, 134. Hazeltine v. Granger, 460, 471. Head v. Egerton, 167. Head v. Phillips, 411, 414. Healy v. Seward, 363. Hearn v. Tennant, 396. Heartt v. Corning, 174. Heavenridge v. Mondy, 108. Hechmer v. Gilligan, 379. Heffron V. Gage, 462. HefCron v. Knickerbocker, 263. Heiskell v. Galbraith, 351. Heller v. King, 478. Hemingway v. Griswold, 411. Hemmer v. Wolfer, 77. Hemsley v. Marlborough Hotel Co., 400. Hemsley v. Myers, 400. Henderson v. Henderson, 262. Henderson Co. Board v. Ward, 401, Hendricks v. Robinson, 489. Hendrickson v. Bradley, 240. Hendrickson v. Canter, 77. Hendrickson v. Wallace, 132. Henn v. Walsh, 388. Henn v. Welsh, 453. Henry V. Buddecke, 302. Henry V. Insurance Co., 267. Henry v. Gregory, 67. Henry v. Koch, 411. Henry v. Ohio River Co., 238. Henry v. Sager, 101. Hensicker v. Lamborn, 463. Herbert v. Hobbs, 132. Herbert v. Wren, 408. Herman Loog v. Bean, 399. Herrick v. Churchill, 428. Herrick v. Snow, 439. Hervey v. Hervey, 84. Hervey v. Parry, 468. Herzog v. Fitzgerald, 403. Hess V. Adamant Mfg. Co., 81. Hess V. Cole, 85. Hesselman v. McKernan, 477. Hewitt V. Adams, 246. Hewitt V. Dement, 250. xliv TABLE OF OASES CITED. Eeferences are to sections. Hewlett V. Shaw, 310. Heyer v. Deaves, 473. Hiatt V. City of Washington, 405. Hibernian Ass'n v. Law, 466, 473. Higgins V. Crawfurd, 169. Highstone v. Franks, 31, 150, 184. Hightower v. Mustain, 122. Higman v. Stewart, 468. Hilbish's Bx'rs, 114. Hlldebrand v. Beasley, 215. Hiles V. Brooks, 473. Fill V. Adams, 478. Hill V. Hill, 257. Hill V. McCarter, 474. Hill V. Mitchell, 400. Hill V. Moone, 61. Hill V. Parker, 394. Hill V. Phelps, 327, 342. Hlllens V. Brinsfield, 412. Hills V. Dey, 416. Hills V. Metzenroth, 400. Hills V. Putnam et al., 53. Hilman v. Hurley, 399. Hilton V. Guyott, 139. Hilton V. Lathrop, 68. Hinchman v. Stiles, 408. Hine v. City of New Haven, 144. Hines v. Dresher, 447. Hines v. Rawson, 400. Hines v. Spruill, 376. Hinkle v. Margurem, 400. Hitchcock V. Merrick, 250. Hoadley v. Smith, 120, 125. Hochgraef v. Hendrie, 473. Hockaday v. Wortham, 400. Hodges V. McDuff, 335. Hodges V. Mullikin, 328. Hoff V. Olson, 123. Hoffman v. Beard, 411, 412. Hoffman v. Hummer, 248. Hoffman v. Knox, 341, 342. Hoffman v. Marshall, 250. Hofner v. Wynkoop, 433. Hoggart Y. Cutts, 370. Hohl V. Reed, 467. Holbrook v. Ford, 499. Holcomb V. Mosher, 61. Holden v. Holden, 46. Holland v. Challen, 427. Holland v. Cruft, 441. Holland V. Trotter, 246. HoUingsworth v. M'Donald, 332. HoUister v. Loud, 497. Hollister v. Stewart, 146. Holmes v. Clark, 380. Holmes v. D'Camp, 163. Holton V. Guinn, 186. Home Ins. Co. v. Howell, 400. Home Ins. Co. v. Nobles, 246. Home Ins. Co. v. Virginia, etc. Co., 60, 115. Home Land & Cattle Co. v. Mc- Namara, 322. Home Life Ins. Co. v. Caulk, 379, 380. Homeopathic, etc. Co. v. Crane, 184. Homer v. Barr et al., 395. Hone V. Woolsey, 490. Honor v. Wing, 134. Honore v. Colmesnil, 328. Hood V. Inman, 26, 41, 183. Hood V. Morgan, 31. Hook V. Richeson, 210. Hook V. Whitlock, 184. Hooker v. Hubbard, 158. Hooper v. Brodrick, 401. Hooper v. De Vries, 411. Hopkins v. Medley, 410. Hopkins v. Roseclare Lead Co., 327. Hopper V. Hopper, 183, 186. Hord V. Marshall, 273. Horn V. Detroit Dry Dock Co., 304. Horner v. Dey, 471. Horton v. Hubbard, 433. Horton v. Mercier, 225. Horton v. Saunders, 468. Hcskins V. Cole, 184. Hottenstein v. Conrad, 388. Houghwout V. Murphy, 172. House V. Dexter, 433. Houser v. Lament, 460. Housten v. Bank, 446. Houston V. Nat. etc. Ass'n, 47S, 481. TABLE OF CASES CITED. xlv References are to sections. Houston V. Sledge, 237. Hovenden v. Annesley, 151. Hovey v. Elliott, 285, 286. How V. Camp, 208. Howard v. Bond, 473. Howard v. Fay, 440, 441. Howe V. Babcock, 489. Howe V. Lawrence, 233. Howell V. Cooper, 489. Howell V. Rome, etc. Co., 31. Howell V. Sebring, 250. Howth V. Owens, 146, 318. Ploxle V. Carr, 276. Hoxie V. Scott, 327. Hoytv. Hoyt, 145. Hoyt V. Smith, 250, 253. Hoyt V. Thompson, 395. Hubbard v. Hubbard, 322. Hubbard v. Manhattan Trust Co., 38, 151. Hubbard v. Trust Co., 31. Hubbard v. Urton, 46. Hubbell V. Lankenau, 329. Hudkins v. Ward, 485. Hudson V. Hudson, 333. Hudson V. Plets, 392. Hudson et al. v. Eisenmayer et al., 53. Hudson Tunnel Co. v. Attorney- General, 400. Huet V. Lord Say, 278. Huffman v. Hummer, 245, 248, 249. Kuggins V. York Buildings, 108. Hughes V. Blake, 176. Hughes V. Hughes, 383. Hughes V. Parker, 400. Hughes V. Shreve, 323. Hughes V. United States, 158. Hughs V. Link Belt Machine Co., 489. Hulbert v. Detroit Cycle Co., 61. Hulfish V. O'Brien, 468. Hull V. Hull, 431. Hull V. Thomas, 396. Hull V. Watts, 316. Humbert v. Churchwardens, etc., 151. Hummel v. Moore, 183. Humphrey v. Harrison, 471. Hungerford v. Scott, 448. Hunt V. Columbian Ins. Co., 395. Hunt V. Graham, 302. Hunt V. Hunt, 416. Hunt V. New Jersey Traction Co., 180. Hunt V. Rousmanier, 300. Hunt V. Sain, 401. Hunt V. Wallace, 291. Hunt V. Wickliffle, 246. Hunt V. Wing, 290. Hunter v. Hopkins, 302. Hunter v. Kennedy, 327. Huntington v. Jones, 491. Hurd V. Case, 214. Hurd V. City of Elizabeth, 395. Hurd V. Everett, 256. Hurlbut V. Britain, 140. Hurtt V. Crane, 98, 327. Huse V. Washburn, 317. Hutchinson v. Brisco, 442. Hutchinson v. Leroy, 439. Hutchinson v. Rled, 256. Hutchinson v. Van Voorhis, 41. Hutchinson v. Yahm, 473. Hyar v. Little, 209. Hyatt V. City of Washington, 405. Idaho, etc. Co. v. Bradbury, 316. Ideal Clothing Co. v. Hazle, 121. Iglehart v. Crane, 474. Illingworth v. Rowe, 377, 382. Illinois, etc. Bank v. Railway Co., 465. Independent College v. Zeigler, 238. India Rubber Co. v. Phelps, 251. Indian Orchard Canal Co. v. Sikes, 400. Indian River, etc. Co. v. East Coast Transp. Co., 399. Ines v. Evans, 145. Ingersoll v. Kirby, 39. Ingham v. Weed, 466. Ingilby v. Shafto, 196. Ingle v. Jones, 297. Ingles V. Bryant, 355. xlvi TABLE OF CASES CITED. Eeferences Ingraham v. Dunnell, 249, 253. In re Axtell, 327. In re Brant, 395. In re Debs, 400. In re De Godey v. Godey, 406. In re Jackson, 406. In re Lennon, 401. In re May, 288. In re Pitts, 406. In re Sawyer, 400. In re Schwarz, 406. In re Storr's Estate, 309. In re Thompson, 416. In re Vanderbilt, 193. In re Wall's Estate, 411. Inskeep v. Hook, 113. Insurance Co. v. Bailey, 146. International et al. v. Jenkins et al., 359. International Lumber Co.- v. Mau- rer, 120. Interstate, etc. Ass'n v. Ayers, 470. Iowa, etc. Co. v. Day, 464. Ireland V. Kelly, 206, 369, 406. Ireland v. Woolman, 327, 474. Irick V. Black, 49. Irons V. Crist, 94. Irvin V. Gregory, 432. Irvine v. Dunham, 437. Irvine v. Leyh, 85. Irving V. DeKay, 221. Irwin V. Exton, 399. Isaacs V. Jones, 392. Isham V. Miller, 229. Isham V. Sienknecht, 489, 500. Isley V. Knight, 344.- Isnard v. Cazeaux, 284, 291. Ivens V. Cincinnati, etc. Ry. Co., 463. Ives V. Edison, 401. Jackson v. Byrnes, 400. Jackson v. Forrest Leggett, 64. Jackson v. Hubbard, 484. Jackson v. Kansas City, etc. Co., 26. Jackson v. Kraft, 204. Jackson v. Lawrence, 475. are to sections. Jackson v. Simmons, 225. Jacobs, etc. v. Mellon, 86. James v. Brown, 484. James v. Groff, 411. James v. Sams, 374. Jameson v. De Shields, 246. Jameson v. Rixey, 416. Janes v. Throckmorton, 441. Jarman v. Wiswall, 334. Jarvis v. Martin, 31. Jarvis v. Peck, 400. Jeffries v. RudlofC, 83. Jehle V. Brooks, 466. Jenkins v. Bacon, 427. Jenkins v. Baum, 184. Jenkins v. Eldredge, 184, 341. Jenkins v. Van Schaak, 414. Jenks V. Horton, 487, 489. Jennes v. Landis, 47. Jenny v. O'Flynn, 100. Jensen v. Norton, 401. Jermain v. Langdon, 337. Jerome v. Jerome, 68. Jerome v. McCarter, 466. Jerome v. Ross, 399. Jersey City, etc. Co. v. Blackwell, 399. Jersey City Gas Co. v. Consum- ers' Gas Co., 399. Jewett V. Palmer, 138, 172. Jewett V. Smith, 64. John D. Park & Sons v. National, etc. Ass'n, 31. John Hancock Ins. Co. v. Dick, 146. Johnes v. Cutwater, 465, 466. Johnson, Adm'r, v. Diversey, 151, 152. Johnson v. Brown, 39. Johnson v. Buttler, 211. Johnson v. Donnell, 461. Johnson v. Dunnell, 100. Johnson v. Everett, 332. Johnson v. Hosford, 477. Johnson v. Hubbell, 431. Johnson v. Hutchinson, 26. Johnson v. Irwin, 462. Johnson v. Johnson, 79, 327. 338, 429. TABLE OF OASES CITED. xlvii References are to sections. Johnson V. Kelly, 101. Johnson v. Moore, 449. Johnson v. Olmstead, 416. Johnson v. Pinney, 286, 416. Johnson v. Plotner, 431. Johnson v. Roberts, 108, 110. Johnson v. Shephard, 337. Johnson v. Sukeley, 432. Johnson v. Tucker, 202. Johnson v. Whitley Grocery Co., 400. Johnston v. Grosvenor, 249. Johnston v. Johnston, 102. Johnston v. Jones, 400. Johnstone v. O'Connor, 4?8. Jones V. Belt, 328. / Jones V. Cleary, 364. Jones V. Cunningham, 207. Jones V. Davenport, 334. Jones V. Dillihanty, 85. Jones V. Disbro, 420. Jones V.Dow, 110, 483. Jones V. Fayerweather, 343. Jones V. Green, 489. Jcnes V. Jones, 264. Jones V. Lloyd, 56. Jones V. Magill, 403. Jones V. McPhillips, 256. Jones V. Merrill, 88. Jones V. Myers, 33. Jones V. Oemler, 400. Jones V. Pilcher, 344. Jones V. Schall, 386. Jones V. Smith, 212, 215. Jones V. Wing, 183. .Jordan v. Hardie, 343, 347. Jordan v. Miller, 388. Joslin V. Williams, 466, 467, 468. Jourolman v. Bwing, 345. Jourolman v. Massengill, 130. Joy V. St. Louis, 399. Joyce V. Growney, 194, 258. Joynes v. Statham, 430. Judge V. Booge, 328. Judson V. Walker, 493. Kanawha, etc. Bank v. Wilson, 30. Kanawha Lodge, etc. v. Swann, 215. Kane v. Bloodgood, 138, 150, 153. Kane v. Loder, 392. Kane v. Mann, 52. Kansas, etc. Co. v. Electric, etc. Co., 297, 322. Katz V. Brewington, 388, 455. Katzer v. Milwaukee, 442. Keating v. Fitch, 401. Keene v. La Farge, 276. Keeney v. Lyon, 338. Keepfor v. Force, 359. Keifer v. Barney, 328. Keith V. McLaughlin, 462. Kelley v. Riley, 330. Kellner v. Mutual, etc. Co., 176. Kellogg v. King, 399. Kellogg V. Hamilton, 121. Kelly V. Boettcher, 114, 151. Kelly V. Brooks, 337. Kelly V. Central, etc. Ry. Co., 431. Kelly V. Galbraith, 11, 260. Kelly V. Insurance Co., 86. Kelly V. Kelly, 448, 449. Kelly V. Longshore, 469. Kelly V. Roane Iron Co., 106. Kemeys v. Netterstrom, 214. Kendall v. New England Co., 482. Kendig v. Dean, 49. Kennebec, etc. Ry. Co. v. Port- land Ry. Co., 114. Kennedy v. Kennedy et al., 218. Kent V. Dean, 431, 436. Kenton v. Railway Co., 398. Kerfoot v. Billings, 117. Kern v. Zink, 211. Kerr v. Lansing, 60. Kerse v. Miller, 476. Kerslake v. Cummings, 364. Ketcham v. Driggs, 122. Keyser v. Meusback, 235. Kidd v. Horry, 399. Kidder v. Barr, 212, 225. Kidder v. Houston, 154. Kilbourn v. Sunderland, 9, 11. Kilbreth v. Root's Adm'x, 237. Kilgore v. Redmill, 419. Killian v. Ebbinghous, 370. Kilmer v. Gallagher, 481. xlviii TABLE OF OASES CITED. References are Kilmer v. Smith, 417. Kimberly v. Arms, 320, 321, 343, 351, 353. Kimble v. Harrington, 418. King V. Donnelly, 437. King V. Harrington, 84. King V. Insurance Co., 290. King V. King, 253. King V. Payen, 208. King V. Whitely, 466. Kingsbury v. Buckner, 224. Kingsbury v. Kingsbury, 322. Kinnear v. Lowell, 470. Kinsel v. Kinsel, 343. Kinsey v. Burgess, etc. Works, 84. Kinsey v. Kinsey, 160. Kintner v. Pickard, 459. Kirby v. Taylor, 180, 198. Kirk V. Kane, 394. Kirkham v. Justice, 30. Kirkland v. Express Co., 98. Kirkpatrick v. Clark, 441. Kittles V. Williams, 425. Kittridge, etc. v. Clarmount, 188. Kitts et al. v. Wilson et al., 235. Kleebauer v. Western, etc. Co., 400. Klever v. Seawall, 410. Klinck V. Price, 475. Kline v. Kline, 87. Knight V. Bampfield et al., 164. Knighton v. Curry, 446. Knorr v. Millard, 59. Knowles v. Spence, 480. Knowlton v. Hanbury, 225. Knox V. Harshman, 325. Knox V. Miller, 84. Knox Rock Blasting Co. v. Rair- donstone Co., 134. Knoxville v. Africa, 399. Kobarg v. Greeder, 438. Koen V. Kerns, 419. Kohn V. McNulta, 316. Koopman v. Blodgett, 399. Kopper V. Dyer, 477. Kransz v. Uedelhofen, 469. Krippendorf v. Hyde, 62, 215. Krolick v. Root, 489. to sections. Kusterer, etc. Co. v. Friar, 163. Kyle V. Coal Co., 372, 377. Kyner v. Kyner, 450. Labadie v. Hewitt, 68, 132. Ladd V. Chase, 370. Lafayette v. Neely, 38. Lafayette Ins. Co. v. French et al., 30. Laird v. Wilder, 400. Lake v. Jarrett, 416. Lake's Petition, 83. Lakens v. Fielden, 125. Lalance, etc. Co. v. Haberman Mfg. Co., 51. Lamb v. Ewing, 289. Lamb v. Jeffrey, 33, 478. Lamb v. McLaughlin, 250. Lamb v. Montague, 475. Lambert v. Lambert, 130, 225. Lambertville Nat. Bank v. Mc- Cready, 460, 469. Lamprey v. Lamprey, 422. Lamprey v. St. Paul, etc. Ry. Co., 432. Lamson t. Drake, 477. Lancaster v. Ashville, etc. Ry. Co., 387. Land Co. v. Peck, 49. Lane v. Newdigate, 401. Lane v. Union Nat. Bank, 46. Langley v. Chapin, 448. Lankton v. Scott, 290. Lannert v. Pies, 68. Lanning v. Cole, 273. Lanoy v. Duke of Athol, 482. Lansdale v. Smith, 117. Lansing v. Pine, 122. Large v. Van Doren, 465. Larrison v. Peoria, etc. Ry. Co., 191. Larrison v. Polhemus, 361. Larter v. Canfield, 126, 130. Lashbrooks v. Hathaway, 465. L. A. Thompson, etc. Co. v. Young, 403. Laughlin v. Greene, 207. Laughton v. Harden, 122. Laverty v. Hall, 432. TABLE OF CASES CITED. xlix References are to sections. Ijaw V. Citizens', etc. Bank, 481. Law V. Ford, 388, 455. Law V. Spence, 462. Lawrence v. Bolton, 256. Lawrence v. Smith et al., 86. Lawrence v. Trustees, 151. Lawton v. Levi, 489. Laj'cock V. Picltles, 163. Laj'lin v. Knox, 473. Lea V. West Jersey, etc. Co., 463. Lea et al. v. Robeson, 110. Leacraft v. Demprey, 180, 185, 198. Leahan v. Cochran, 400. Leath v. Watson, 443. Leavitt v. Cruger, 95. Leavitt v. Fisher, 376. Leavitt v. Palmer, 418. Le Baron v. Shepherd, 110. Le Clare v. Thibault, 468. Ledyard's Appeal, 439. Lee V. Enos, 438. Lee v. Lee, 276. Lee V. Watson, 399. Leeds v. Insurance Co., 309. Leggett V. Postley, 187. Leggett V. Sellon, 197. Le Grande v. Fairall, 84. Lehman v. Meyer, 500. Lehman v. Tallassee, 211. Lehman, etc. v. Dozier, 223. Leiter v. Baude, 463. Lenfers v. Henke, 411. Lenning v. Lenning, 316. Lennon v. Porter, 478. Lentilhon v. Moffat, 493. Leo V. Union Pac. Ry. Co., 402. Leonard v. Pope, 55. Leonard v. Smith, 223. Leonard, etc. v. Cook, 263, 267. Leslie v. Leslie, 183. Lewis v. Bridgman, 280. Lewis v. Campau, 359. Lewis V. Darling, 246, 250. Lewis V. Lanphere, 256. Lewis V. North, 315. Lewis V. Small, 406. Libby v. Norris, 53, 493. Lick V. Ray, 425. Light V. Light, 56. Lincoln v. Aldrich, 360. Lincoln v. Purcell, 121. Lindsey v. Lindsey, 256. Lingan v. Henderson, 327. Lipscomb v. McClellan, 256. Litch V. Clinch, 209. Littel V. Ragan, 492. Little V. Merrill, 211. Livingston v. Hayes, 257. Livingston v. Iron Co., 64. Livingston v. Jones, 467. Livingston v. Livingston, 55. Livingston v. Marshall, 255. Livingston v. Story, 185. Livingston v. Woolsey, 337. Lloyd V. Brewster, 40, 46. Lloyd V. Johnes, 281. Lloyd V. Loaring, 50. Lloyd V. Pennie, 298. Lockard v. Lockard, 132. Lockhart v. Leeds, 110. Loftis V. Butler, 357. Logan V. Hartis, 359. Logansport Hardware Co. v. City of Logansport, 431. Loggie V. Chandler, 304. Long V. Brown, 433. Long V. King, 442. Long V. Long, 88, 337. Long V. Mulford, 102. Long Branch, etc. Co. v. Sneden, 291. Longfellow v. Barnard, 392. Lonsdale Co. et al. v. Woonsocket, 48, 60, 115, 399, 400. Look v. McCahill, 380. Loomis V. Roberts, 438. Lord V. Underdunk, 64. Lore V. Getsinger, 489. Lorenz v. Jacobs, 413. Loring V. Hildreth, 426. Loring v. Palmer, 438. Lorton v. Seaman, 239. Los Angeles, etc. Co. v. Muir, 400. Losey v. Simpson, 172. Loud v. Sergeant, 136. Loud V. Winchester, 438. TABLE OF CASES CITED. References are to sections. Loughridge v. Cawood, 215. Louisville, etc. Ry. Co. v. Palmes, 110. Louisville Ry. Co. v. Hubbard, 262. Lounsbury v. Purdy, 426. Lovell V. Kelley, 344. Im-w v. Low, 459. Low V. Mills, 327, 332, 337. Ijowenfeld v. Curtis, 405. Lowenstein v. Glidewell, 224. Lowry v. Stapp, 126, 130. Lowther v. Carlton, 478. Lozier v. Administrators, etc., 377. Lucbette v. Frost, 432. Lucking v. Wesson, 447. Ludington v. Patton, 154, 422. Ludlow V. Oilman, 468. Ludlow V. Ludlow, 428. Lumley v. Wagner, 431. Lumsden v. Manson, 477. Lundy v. Seymour, 154. Luton V. Badham, 184. Lutzen v. Lutzen, 424. Lyle V. Addicks, 459*. Lynch v. Jackson, 475. Lynch v. Johnson, 114. Lynde v. Lynde, 334. Lynde v. O'Donnell, 473. Lyndon v. Lyndon, 103. Lyon V. Smith, 468. Lyon V. Tallmadge, 130, 178, 245. Lyons v. Van Riper, 278. Lyster v. Stickney, 256. Mackey v. Gordon, 84. Mackey v. Smith, 327. Mackintyre v. Jones, 401. Maclean v. Circuit Judge, 406. Macomb v. Prentiss, 473. Maddox v. Craig, 86. Madison v. Wallace, 223. Madison Athletic Co. v. Brlttin, 431. Maese v. Hermann, 110. Magniac v. Thompson, 110. Mahagan v. Mead, 474. Maher v. Lanfrom, 184. Mains v. Homer Steel Fence Co., 134. Maitland v. Gibson, 289. Malin v. Malin, 56. Malony v. Kernan, 172. Mallory v. Vanderheyden, 9. Mallow V. Hinde, 50. Manchester v. Mathewson, 280. Manchester at al. v. McKee, Ex'r, 100. Manchester, etc. Co. v. Manches- ter, 400. Mandeville v. Campbell, 499. Manhattan Bank v. Walker, 439. Manistique Lumbering Co. v. Lovejoy, 68. Manley v. Mlckle, 134. Mann v. Brooks, 285. Mann v. Ruby, 493. Manning v. Drake, 31. Manning v. Fifth Parish, etc., 33. Manning v. Heady, 235. Mannix v. Purcell, 437. Mansfield v. Sherman, 434. Manufacturing Co. v. Lindblom, 346. Marble v. Bonhotel, 247. Margie Co. v. Ripley, 431. Markham v. Markham, 55. Markwell v. Markwell, 49. Marmion v. McClellan, 301. Marquis of Downshlre v. Lady Sandys, 405. Marr v. Lewis, 223. Marr v. Wilson, 249. Marsh v. Cook, 468. Marsh v. McNalr, 417. Marshall v. Blass, 491. Marshall v. Croom, 316. Marshal v. Means, 114. Marshall v. Rench, 44. Martin v. Atkinson, 249, 270. Martin v. Davis, 399. Martin v. Kester, 214. Martin v. Lutkewitte, 38. Martin v. Martin, 416. Martin v. McReynolds, 465, 467. Martin v. Reese, 238, 308. Martin v. Tenlson, 36. Marvin v. Brooks, 439. TABLE OF CASES CITED. References are to sections. Maryland v. Northern, etc. Ry. Co., 471. Mason v. Blair, 253. Mason V.Daly, 328. Mason v. Equitable League, etc., 400. Mason v. Luce, 462. Mason v. Payne, 474. Mason v. Pierron, 500. Mason v. Stevens, 481. Massie v. Donaldson, 77. Massie v. Graham, 344. Mastenbrook v. Alger, 113. Masterson v. Little, 86. Mateer v. Cockrill, 46. Mathiason v. City of St. Louis, 213. Matson v. Melchor, 487. Mattel V. Conant, 146. Matthews v. Dunbar, 252. -Mattison v. Demorest, 500. Mattison v. Morris, 421. Mawman v. Tegg, 400. May v. Bryn, 492, 499. May V. Coleman, 270. May V. Williams, 285. Maynard v. Hoskins, 487. Maynard v. Pomfret, 97. Maynard v. Pereault, 341. Mayor v. Rains, 402. McAllister v. Harmon, 394. McArthur v. Clark, 414. McArthur v. Gordon et al., 438. McArthur v. Scott, 50. McBride v. Mclntyre, 61. McCabe v. Farnsworth, 101. McCall's Appeal, 416. McChanahan v. Davis, 26. McClane's Adm'rs v. Shepherd's . Ex'rs, 237. McClellan v. Seim, 315. McCloskey v. Barr, 138, 139, 147, 196, 211, 351. McClung V. Colwell, 327. McClung V. North Bend, etc. Co., 400. McClure V. Adams, 466. McClure V. Otrich, 155. McComb V. Prentiss, 473. McCombs V. Merryhew, 390. McConnell v. McConnell, 40. McCormick v. Chamberlin, 197. McCormick v. Cook, 442. McCormick v. Jerome, 404. McCormick v. Riddle, 110. McCoy V. Boley, 122. McCoy V. Fire Ins. Co., 388, 489. McCoy V. Stockman, 84. McCoy V. World's, etc. Exposition, 26. McCree v. Purmont, 151. McCreery v. Brown, 406. McCreery v. Circuit Judge, 74, 93, 197. McCullough v. Day, 388, 497. McCully V. McLean, 432. McDaniel v. Baskerville, 276. McDanlel v. McCoy, 59. McDearmon v. Durham, 151. M'Dermutt v. Strong, 489. McDonald v. Salem, etc. Co., 139. McDonald v. Whitney, 355. McDonough v. Squire, 460. McDougald v. Williford, 246. McDowell v. Kurtz, 400. M'Dowl V. Charles, 117. McEldowney v. Lowthar, 406. McBlreth v. Pittsburg Ry. Co., 464. McElwain v. Willis, Yardly et al., 489. McEwen v. Broadhead, 146, 147. McFadden v. Mays, 465. McGarrah v. Prather, 375, 379. McGill v. Deming, 87. McGonnigle v. McGonnigle, 445. McGoren v. Avery, 338. McGorray v. O'Connor, 308, 309. M'Gown V. Yerks, 264. McGregor v. Camden, 400. McGregor v. Silver King Mining Co., 399. McGuire v. Caskey, 400. McGuire v. Circuit Judge, 210. McHenry v. Hazard, 380. Mclllvaine v. Smith, 500. Mclntire v. Conrad, 150. Mclntire v. Pryor, 154. lii TABLE OF CASES CITED. References Mcintosh V. Alexander, 130. Mclntyre v. Marlboro Wholesale Grocery Co., 405. Mclntyre v. Trustees of Union College, 26. McKay v. McKay, 30. McKay v. McNeill, 413. McKenzie v. Flannery & Co., 46. McKim V. Mason, 239. McKim V. Thompson, 270. McKim V.White Hall Co., 183. McKinley v. Miller, 465, 475. McKinney v. Curtiss, 9. MoKinzie v. Hodgkin, 215. McLaughlin v. Hart, 483. McLaughlin v. McCrory, 85. McMahon v. McClernan, 388. McMahon v. Rooney, 31. McMann v. Westcott, 246. McMichael v. Brennan, 194, 251. McMillan v. Bissell, 460. McMillan v. Croniu, 411. McMillan v. James, 33. McMullan v. Ferrell, 399. McMullen v. Ritchie, 482. McNaughton v. Partridge, 418. McNutt V. Roberts, 126. McPherson v. Hayward, 481. McPike V. Penn, 426. McQueen v. Whetstone, 476, 478. McVeigh v. United States, 285, 286. Meach v. Lee, 310. Mead v. Martens, 436. Mead v. Merritt, 399, 400. Mechanics' Bank v. Seton, 465. Mechanics' Nat. Bank v. Mfg. Co., 400. Medsker v. Bonebrake, 321. M. E. Church v. Jaques, 183, 196. Meek v. Spracher, 317. Meeker v. Marsh, 146. Meeker v. Meeker, 316. Meers v. Stevens, 26. Meeting, etc. Soc. v. Hail, 437. Mehan v. Owens, 431. Meigs V. McFarland, 475. Melick V. Cross, 436. are to sections. Meloy V. Dougherty, 425. Memphis, etc. Ass'n v. Wlegner, 418. Memphis, etc. Ry. Co. v. Neigh- bors, 183. Memphis, etc. Ry. Co. v. Owens, 128. Mengel v. Coal & Navigation Co., 109. Mercantile Deposit Co. v. Dimon, 374. Mercantile Trust Co. v. Missouri, etc. Ry. Co., 141, 183, 202. Mercer v. Williams et al., 399. Merchant et al. v. Insurance Co., 369. Merchants' Bank v. Kent Judge, 386. Merchants' Nat. Bank v. Allamont Club, 468. Merchants' Nat. Bank v. Mc- Anulty, 445. Merchants' Nat. Bank v. BIcDon- ald, 499. r.Ierchants' Nat. Bank v. Snyder, 468. Merreweather v. Mellish, 142, 146, 280. Merrill v. Washburn, 38. Merritt v. Ehrman, 423. Merritt et al. v. Gibson, 388. Merson v. Merson, 310. Messenger v. Peter, 428. Metcalf V. Hart, 225. Metcalf V. Hoopingardner, 410. Metier v. Metier, 400. Metler's Adm'rs v. Metier, 108. Metropolitan, etc. Co. v. Columbus Ry. Co., 467. Meyer v. Saul, 117. Meyer v. Weber, 462. Michael v. Mace, 224. Michigan Ins. Co. v. Whittemore, 339. Michigan State Bank v. Gardner, 49. Michigan State Bank v. Hastings, 61. TABLE OF CASES CITED. liii References are to sections. ilichigan, etc. Co. v. White, 373, 381. Mickle V. Maxfield, 332, 350. Middlesex Co. v. Osgood, 155. Midgeley v. Slocomb, 482. Midmer v. Midmer's Ex'rs, 250. Miles v.Hoag, 318, 324, 467. Miles V. Miles, 273. Milholland v. Whalen, 438. Milk V. Moore, 316. Milkman v. Ordway, 459. Millard v. Truax, 478. ililler V. Cook, 425. Miller V. Cornwell, 459. Miller v. Cramer, 438. Miller v. Grandy, 20, 60. Miller V. Hall, 493. Jliller V. Hare, 130. Miller v. Mclntyre, 151. Miller V. Miller, 166, 411. Miller v. Mutual, etc. Ass'n, 401. Miller v. Sawyer, 445. Jliller V. Stalker, 26. Miller v. Thompson, 466. Miller v. United States, etc. Co.,- 302. Miller v. United States Casualty Co., 180. Miller v. Wilkins, 327. Miller V. Wills, 316. Miller's Appeal, 448. Miller's Heirs v. Mclntyre, 237. Mills V. Hoag, 145, 318, 324. Mills V. McLeod, 337. Mills V. Pittman, 238. Millspough V. McBride, 337. Milly V. Harrison, 102. Milner v. Milner, 263. Milwaukee, etc. Co. v. Bradley, 403, 406. Minnesota, etc. Ry. Co. v. Hiams, 110. Minnesota, etc. Ry. Co. v. St. Paul, etc. Co., 261, 264. Minnighoff v. Sayre, 428. Minot V. Mastin, 394. Minthorne's Ex'rs v. Tompkins. 333. Minturn v. Seymour, 431. Mirandona v. Burg, 431. Mississippi, etc. Co. v. McDonald, 418. Missouri, etc. Co. v. Guymon, 439. Mitchell V. Bartlett, 473. Mitchell V. Bunch, 146. Mitchell V. Hayne, 370. Mitchell V. Moore, 327. Mitchell V. Overman, 326, 330. Mitchell V. Simpson, 315. Mitchell V. Woodson, 155. Mitchell, etc. Co. v. O'Neil, 84. Mitchellson v. Smith, 483. Mix V. Mackie, 337. Mix V. People, 250. Moat V. Holbein, 396. Mobile Savings Bank v. Burke, 60. Mock V. City of Santa Rosa, 114. Mohawk, etc. Ry. Co. v. Clute, 371, 375, 377. Monarch Brewing Co. v. Wolford, 100. Monarch, etc. Co. v. Hand, 474. Moon V. Missouri, etc. Ry. Co., 26. Moon V. National Wall, etc. Co., 11. Montague v. Selb, 270. Montgomery v. Brown, 465. Montgomery v. Council, etc., 448 Montgomery v. Enslen, 392. Montray v. Dieckman, 433. Moore v. Bank, 126, 130. Moore V. Cheeseman, 68. Moore v. Clear Lake Water Works, 402. Moore v. McNutt, 399. Moore v. Moore, 438, 445. Moore v. Omaha Life Ass'n, 388, 489. Moore v. Smith, 396. Moore v. Titman, 100. Moore v. Woodall, 102. Moors V. Moors, 188. Moran v. Abbey, 448. Moran v. Daly, 316. Mordaunt v. Hooper, 389. Morenhout v. Higuera, 414. iiv TABLE OF CASES CITED. References are to sections. Morgan v. Morgan, 433. Morgan v. Mueller, 411. Morgenstern v. Klees, 462. Morrill v. Manhattan Life Ins. Co., 377. Morris v. Bacon, 418. Morris v. Branchaud, 471. Morris v. Blme, 383. Morris v. Holland, 46. Morris v. Hoyt, 209. Morris v. Taylor, 184. Morrison v. Houck, 501. Morrison v. Mayer, 246, 250, 459. Morrison v. Moat, 400. Morrison V. Smith, 328. Morrison v. Warner, 445. Morrow v. Lawrence University, 433. Morse v. Byam, 465. Morse v. Hovey, 51. Morse v. Trust Co., 478. Mortgage & Trust Co. v. Mar- quam, 470. Mosher v. Davis, 314. Moshier's Appeal, 448. Moshier v. Knox College, 250. Moundsville v. Railway Co., 67. Moulin V. Insurance Co., 85. Mount V. Manhattan, etc., 147. Mount Carbon, etc. Co. v. Blanch- ard, 60. Mowrey v. Indianapolis, etc. Co., 403. Mt. Holly, etc. Co. v. Ferree, 122, 379, 382. Muir V. HodgeS; 487, 494. Muir V. The Trustees, etc., 64. Muldrow V. Muldrow, 327. Mullan V. United States, 20. Muller V. Dows, 30, 464. Mullin V. Sparks, 84. Mumma v. Potomac Co., 271. Munch v. Shabel, 250, 256. Mundy v. Mundy, 408, 410. Munford v. Sprague, 49. Munson v. Munson, 425. Munter v. Linn, 253. Murphy v. Branaman, 351. Murphy V. Hoyt, 471. Murphy v. Johnson, 347. Murphy v. Robinson, 467. Murphy v. Rooney, 418. Murphy v. Schoder, 343. Murray v. Btchepare, 394, 468, 470. Murray v. Hay, 493. Murray v. Ingersoll, 343. Murray v. Murray, 85. Musselman v. Marquis, 399. Mutual, etc. Ins. Co. v. Pinner, 85. M. V. Monarch Co. v. Bank, 388. Myers v. Dorr, 1V9. Myers v. Fenn, 493. Nance v. Metcalf, 417. Nash V. Cutler, 437. Nash V. Smith, 375. Nashville, etc. Ry. Co. v. M'Con- nell, 398. Nason v. Willard, 411. National Bank v. Augusta, etc. Co., 577. National Bank v. Colby, 271. National Bank v. Carpenter, 130. National Bank v. Dwight, 489. National Bank v. Insurance Co., 135, 175, 176, 271. National Bank v. McCormick, 500. National, etc. Co. v. Interchange- able, etc. Co., 197. National Foundry & Pipe Works V. Oconto, etc. Co., 478. National Tube Works v. Ballon, 489. Neafie v. Neafie, 158, 318, 333. Neal V. Briggs, 322. Neale v. Foster, 217, 221, 222. Neale v. Neales, 246, 250. Neale v. Suber, 316. Nealis V. Insley, 392. Nebraska, Nat. Bank v. Hollowell, 499. Needham v. Bythwood, 166. Neely v. Henkel, 26. Neldon v. Roof, 301. Nelson V. Buncombe, 56. Nelson v. Eaton, 103. Nelson v. Haisley, 411. TABLE OF OASES OITED. Iv References are to sections. Nelson v. Hill, 493. Neubert v. Massman, 263. Nevada Nickel Syndicate v. Nat. etc. Co., 260. New V. Bame, 406. New V. Wright, 388. Newberry v. Blatchford, 225. Newcomb v. Horton, 50. Newell V. Bureau Co., 110. New England, etc. Co. r. Davis, 106. New England, etc. Co. v. Lisbon, 344. New England, etc. Co. v. Marlbor- ough, etc. Co., 400. New England, etc. Mfg. Co. v. Odell, 370. New England Ry. Co. v. Hyde, 117. Newhall v. Kastens, 373, 382. Newhall v. Sherman, 467. New Iberia Co. v. Romero, 401, 403. New Jersey v. New York, 82. Newland v. Rogers, 117. Newman v. Bank, 83. Newman v. Freitas, 431. Newman v. Locke, 477. Newman v. Moody, 125. Newman v. Schwerin, 443. Newman v. Wallis, 142. New Music Hall v. Orpheon Music Hall Co., 403. New Orleans V. Dudley, 155. New Orleans, etc. R. Co. v. Par- ker, 465. Newton v. Thayer, 237. New York Bank Note Co. v. Kerr, 405. New York Baptist Union Ass'n v. Atwell, 85. New York, etc. Ass'n v. Brennan, 474, 482. New York, etc. Co. v. Milnor, 474. New York, etc. Tel. Co. v. Jewett, 394. New York Ice Co. v. Insurance Co., 359. Nichol V. Nichol, 223. Nichols V. Padfleld, 184. Nichols V. Rogers, 248, 442. Nichols V. Williams, 52. Nicholson v. Squire, 286. Nicholson v. Tarpey, 419. Nickles v. People's, etc. Ass'n, 462. Nicoll v. Roosevelt, 276. Nilsson V. Jefferson, 400. Nishbet v. Sawyer, 398. Noble V. Shearer, 15. Nodes V. Battle, 97. Noe V.Gibson, 396. Noe V. United States, 358. Nofsinger v. Reynolds, 379. Nordlinger v. Ostatag, 491. Norfolk Ry. v. McGarry, 237. Norris v. Bean, 493. Norris v. He, 256. North V. Brace, 445. North American Coal Co. v. Dyett, 246. North American, etc. Co. v. Wat- kins, 388. North Pacific Lumber Co. v. Lang, 372. North River Bank v. Rogers, 472. Northcut V. Lemery, 98. Northern Ry. Co. v. Walworth, 202. Northup V. Boone, 434. Norton v. Parsons, 250. Nott V. Hill, 327. Nowell V. Sanborn, 350. Nowland v. Glenn, 332. Nudd V. Powers, 327. Nugent V. Nugent, 490, 497. Nurse V. Weits, 487. Nusbaum v. Myer, 390. Oakdale Mfg. Co. v. Garst, 400. Oakley v. Paterson, 387, 388. Oakman v. Walker, 476. Obert V. Obert, 413. O'Brien v. Ash, 411. O'Brien v. Heeny, 250. O'Brien v. Wetherell, 400. O'Callaghan v. Jt;la'-e. V ' Ivi TABLE OF CASES CITED. Eeferences are to sections. Ocean Beach Ass'n v. Brinley, 408. Ocmulgee Lumber Co. v. Mitchell, 399. O'Connor v. O'Connor, 257. Odom V. Owens, 215. Oelberman v. Ide, 85. Oelrichs v. Spain, 439. Ogden V. Armstrong, 425. Ogden V. Aster, 163. Ogden V. Davidson, 327. Ogden V. Moore, 247, 250. Ogden V. Thornton, 250. Oglivie V. Heme, 98, 327. O'Hara v. MacConnell, 102. Ohio Cultivator Co. v. People's Nat. Bank, 38. Oil Run, etc. Co. v. Gale, 376. Old Colony v. Dubuque, etc. Co., 154. Olden V. Hubbard, 117. Oliphint V. Hartley, 132. Oliphint V. Mansfield Co., 49. Oliver v. Decatur, 125. Oliver v. Palmer, 36. Olmstead v. Taylor, 462. Olson V. Lamb, 11. O'Neal V. Hines, 400. Oneida Co. v. Bonney, 146. Opperman v. Waterman, 400. Orb V. Coapstick, 442. Orcutt V. Orms, 180, 198. Orr Shoe Co. v. Kimbrough, 47. Orth V. Orth, 438. Orthwein v. Thomas, 327. Orton V. Knab, 246. Orvis V. Powell, 474. Osborn v. Bank, 58. Osborn v. Heyer, 388. Osburn v. San Diego, etc. Co., 342. Ottawa, etc. Co. v. Murray, 462. Otten V. Railway Co., 265. Ould V. Stoddard, 463. Outhwite V. Porter, 98. Over V. Gallagher, 463. Overall v. Avant, 126, 130. O. & W. Thum Co. v. Tloczynski, 400. Owen v. Cross, 269, 270. Owen V. Curzon, 281. Owens V. BarroU, 327. Owens V. Williams, 439. Pace V. Bartles, 164. Pacific Bank v. Robinson, 489. Pacific Live Stock Co. v. Hanley, 130. Pacific Ry. Co. v. Ketcham, 327. Packard v. Kingman, 438. Packard v. Stevens, 369. Packet Co. v. Sickles, 158. Packington v. Barrow, 480. Paddock v. Somes, 400. Page V. Carnine, 432. Page V. Higgins, 417, 418. Page V. Holmes, 339. Page V. Whidden, 60. Paige V. Broadfoot, 192. Paine v. Richards, 132. Palethrop v. Palethrop, 320, 321. Palk V. Clinton, 478. Palmer v. Hartford, etc. Co., 417, 419. Palmer v. Palmer, 36. Palmer v. Rich, 246, 254. Pappenheimer v. Roberts, 493. Parberry v. Goran, 250. Parisian Comb Co. v. Bschwege, 297. Park V. Johnson, 431. Park, etc. Bank v. Haley, 11 0. Parker v. Alcock, 179. Parker v. Barker, 275, 380. Parker v. Browning, 394. Parker v. Plagg, 324. Parker v. Parker, 146. Parker V. Randolph, 465, 467, 468. Parker v. Simpson, 271. Parker v. Stevens, 121. Parker v. Straat, 158. Parkhurst v. Kinsman, 261. Parkman v. Welsh, 183. Parks V. Jackson, 371. Parleys Park, etc. Min. Co. v. Kerr, 428. Parrill v. McKinley, 246. Partlow V. Moore, 370. Partridge v. Brennan, 47. TABLE OF CASES CITED. Ivii References are to sections. Partridge v. Haycraft, 196. Partridge v. Usborne, 344. Pascault V. Cochran, 387. Passumpsic Sav. Bank v. First Nat. Bank, 223. Patterson v. Birdsall, 447. Patterson v. Blake, 416. Patterson v. Brown, 499. Patterson v. Lynde, 489, 490. Patterson v. Scott, 192, 207. Paterson, etc. Ry. Co. v. The Mayor, 26. Pattison v. Hull, 210. Pattisonv. Powers, 467, 472. Patton V. Wagner, 410. Paul V. Cragnez, 411. Peabody v. Kendall, 317. Peabody et al. v. Norfolk et al., 400. Peachy v. Witter, 467. Peake v. Young, 436. Pearse v. Dobinson, 338. Pearson v. Badger, 473. Pearson v. Cardon, 372. Pearson v. Tower, 110. Pearson v. Treadwell, 196. Pease v. Phelps, 111. Pease v. Warren, 465. Peckv. Adsit, 102. Peck V. Burgess, 177. Peck V. Jenness, 400. Peck V. Mellams, 253. Peck V. School District, 184. Peckman v. Buffam, 304. Pedrick v. White, 261. Peer v. Cookerow, 273, 276, 281. Peirsall v. Elliott, 423. Pelham v. Newcastle, 294. Pell V. Landers, 406. Pelletier v. Greenville Lumber Co., 392. Pelletreau v. Rathbone, 280. Peltier v. Peltier, 59, 403. Pendleton v. Fay, 280, 281. Penfleld v. Village, etc., 419. Penn v. Fogler, 31. Penn v. Hearon, 52.. Penney v. McColloch, 501. 6 Pennock v. Hart, 4. Pennoyer v. Neff, 86. Pennsylvania, etc. Co. v. Franklin Ins. Co., 423. Pennsylvania Ry. Co. v. National, etc. Co., 406. Penny v. Cook, 477. Pentlarge v. Pentlarge, 267. Pentz V. Hawley, 189. People V. Barger, 365. People V. Curley, 26. People V. Central City Bank, 396. People V. District Court, etc., 400. People V. Rogers, 396, 397. People V. Truckee Lumber Co., 400. People ex rel. v. Everest, 151. People's Gas Co. v. Tyner, 400. People's Ins. Ass'n v. Mayfleld, 482. People's Ins. Co. v. Crawford, 387. People's Inv. Co. v. Marion Trust Co., 388. People's Nat. Bank v. Kern, 388. Pepper v. Supreme Court, etc., 395. Pereles v. Albert, 464. Perine v. Dunn, 480. Perkin v. Stafford, 234. Perkins v. Montgomery, 369. Perrin v. Lepper, 359. Perry v. Boyd, 422. Perry v. Phelips, 351. Peterson v. Catling, 489. Peterson v. Groves, 300. Peterson v. Lindskoog, 392. Pethtel V. McCullough, 154. Petit V. Candler, 183. Petit V. Shepherd, 426. Pettibone v. Edwards, 465, 468. Phalen v. Clark, 150, 154. Phelps V. Garrow, 135, 176. Phelps V. Sproule, 271. Philbrick v. Shaw, 447. Phillips v. Langhorn, 133. Phillips V. Pitts, 425. Phillips V. Stauch, 431. Phillips' Appeal, 320. Iviii TABLB! OF CASES CITED. Eeterences are to sections. Piatt V. Oliver, 51, 147. Piatt V. St. Clair's Heirs, 482. Pickering v. Day, 207, 208. Pierce v. Chism, 394. Pierce v. Pagans, 146, 184. Pierce v. Kneeland, 253. Pierce v. McClellan, 184. Pierce v. West, 238. Pieroy v. Beckett, 257. Pieri v. Shieldsboro, 185. Pillsbury, Washburn, etc. Co. v. Eagle, 400. Pincers v. Robertson, 192. Pinch V. Anthony, 263. Pioneer Land Co. v. Maddox, 426. Pipe Works v. Oconto, etc. Co., 478. Pirtle V. Penn, 387. Pittman v. McClellan, 337. Pitts V. Short, 123. Pittsburg, etc. Ry. Co. v. O'Brien, 428. Pixlee V. Osborn, 317. Piatt V. Judson, 487. Piatt V. Oliver, 51. Piatt V. Stewart, 84, 85. Plum V. Smith, 189. Plummer v. Keppler, 430. Plummer v. May, 145. Plympton v. Hall et al., 56. Pokegama, etc. Co. v. Klamath, etc. Co., 401. Polhemus v. Holland Trust Co., 9. Poling V. Huffman, 322. Pollard V. Wegener, 84. Pollard V. Wellford, 213, 215. Pomeroy v. Pullerton, 434. Pomeroy v. Winship, 314. Pomfret v. Windsor, 138. Poor V. Carleton, 403, 406. Pope Mfg. Co. V. Gormully, 431. Porter v. Wormer, 155. Port Huron, etc. Ry. Co. v. Circuit Judge, 406. Post V. Beacon, etc. Pump Co., 31. Post V. Campbell, 425. Post V. Maokall, 482. Post V. Post, 416. Postal Tel. Cable Co. v. Snowden, 48. Potter V. Gardner, 64. Potter V. Potter, 405. Potter V. Street Ry. Co., 401. Powder Co. v. Powder Works, 126, 129. Powell V. Howell, 4S9. Powell V. Mayo, 259. Powell V. Monson, 408. Powell V. Powell, 207. Powell V. Weatherington, 416. Powers V. Blue Grass, 388. Powers V. Golden Lumber Co., 475. Powers V. Hibbard, 213. Prater v. Bennett, 419. Pratt V. Lewis, 121. Pratt V. Northam, 9. Prentiss Tool Co. v. Godchaux, 225. Prescott V. Hutchinson, 228. Prescott V. White, 411. Preston v. Preston, 151, 445. Price V. Crone, 102. Price V. Notrebe, 344. Price V. Oakfield, etc. Co., 459. Prichard v. Littlejohn, 413. Printing Press, etc. Co. v. M. L. & Co., 83. Prittle v. Penn, 388. Pritty V. Hartsook, 463. Proctor V. Oates, 480. Proctor V. Plumer, 74. Proprietors of Mills, etc. v. Brain- tree, etc. Co., 60, 115. Prospect Park, etc. v. Coney Island, etc. Co., 399. Prouty V. Railway Co., 260, 263. Provident Sav. Inst. v. White, 382. Pugh V. Pugh, 77. Pullan V. Cincinnati, etc. Ry. Co., 388. Pullman v. Stebbins, 61. Purefoy v. Purefoy, 32. Pursel v. Armstrong, 487. Purvines v. Harrison, 418. Pusey V. Desbouvrie, 164. Putnam v. Day, 343. TABLE OF OASES CITED. lix References are to sections. Putnam V. Putnam, 273. Putney v. Whitmire, 263. Quackenbush v. Leonard, 280. Quartz Hill, etc. Co. v. Beall, 399. Quayle v. Bayfield Co., 403. Queen City Stock & Grain Co. v. Cunningham, 406. Quick V. Lemon, 222. Quick V. Stuyvesant, 9, 418. Quin V. Brittain, 477. Quinby v. Conlan, 316, 317, 321. Quincy, etc. Co. v. Humphreys, 388. Quinn v. McMahon, 33. Rabenstein v. Chicago, etc. Co., 206. Rachael v. Smith, 448. Racine, etc. Ry. Co. v. The Farm- ers', etc. Co., 468. Railton r. People, 498. Railway Co. v. Ackley, 100. Railway Co. v. Carr, 400. Railway Co. v. Chambers, 361. Railway Co. v. EUerman, 400. Railway Co. v. Express Co., 318. Railway Co. v. McConnell, 400. Railway Co. v. Orr, 465. Railway Co. v. Soutter, 418. Railway Co. v. Sprague, 462. Ralston v. Lahee, 102. Ralston's Appeal, 86. Ramey v. Green, 260. Ramsbottom v. Parker, 454. Ramsey V. Liston, 435. Ramsey v. Smith, 417. Rand v. Barrett, 447. Randall v. Howard, 117. Randall v. Lang, 64. Randall V. Payne, 323. Randall v. Reynolds, 470. Randolph v. Dickerson, 281. Rankin v. Barcroft, 329. Rankin v. Rothchild, 183, 498. Rann v. Rann, 413. Ransdel v. Moore, 400. Ransome v. Geer, 30. Ransome v. Sutherland, 290, 291, 292. Ransome v. Winn, 295. Rathbone v. Clark, 474. Raub V. Otterback, 86. Ray V. Home, etc. Co., 213. Raymond v. Came, 211. Rea V. Longstreet, 425. Read v. Franklin, 341, 347. Reavis v. Reavis, 154. Redding v. Rozell, 418. Redfield v. Gleason, 211. Redhead v. Baker, 328. ^ Redkey, etc. Co. v. Orr, 400. Reed v. Consequa, 192, 406. Reed v. Cumberland, 202. Reed v. Insurance Co., 197, 202. Reed v. Kemp, 225. Reed v. Stanley, 344, 355. Reed et al. v. Whitney, 408. Reeg V. Burnham, 495. Reese v. Barker, 361. Reeves v. Brown, 464. Reid V. McCallister et ux., 207. Reid V. Stuart's Ex'r, 276. Reilly v. Hodgkins, 31. Reissner v. Anness, 134. Remsen v. Hay, 500. Renshaw v. First Nat. Bank, 154. Renton v. Chapling, 453. Renwick v. Wilson, 247. Revels v. Revels, 218. Reynard v. Brecknell, 344. Reynes v. ^tna Life Ins. Co., 392. Reynes v. Dumont, 11. Reynolds v. Campbell, 418. Reynolds v. Florida, etc. Ry. Co., 345. Reynolds v. Stockton, 395. Reynolds v. Summer, 438. Reynolds v. Touzalin Imp. Co., 400. Rhea v. Puryear, 253. Rhino v. Emery, 137. Rhode Island v. Massachusetts, 135, 176, 179. Rhodes v. Lee, 390. Ribon V. Railway Co., 49. Rice V. Waddill, 408. Rich V. Braxton, 425. Richard v. Boyd, 464. Ix TABLE OF CASES CITED. References are to sections. Richards v. Chesapeake, etc. Ry. Co., 294. Richards v. People, 396. Richards v. Richards, 411. Richards v. Salter, 382. Richardson v. Bank, 450. Richardson v. Belt, 370. Richardson v. City of Eureka, 317. Richardson v. Orth, 431. Richardson v. Richardson, 64, 256. Richardson v. Tolman, 468. Richey v. Guild, 471. Richman v. Donnell, 215. Richmond v. Irons, 245. Ricker v. Powell, 355. Rickle V. Dow, 327. Ricks V. Broyles, 394. Riddick v. Long, 114. Riddle v. Whitehill, 254. Rider v. Bagley, 387. Ridgeley v. Bond, 273. Riggs V. Armstrong, 214. Riggs V. Johnson, 400. Riggs V. Lockwood, 327. Riley v. Emerson, 344. Riley v. Hodgkins, 31. Rindge v. Baker, 445. Ringgold V. Patterson, 239. Ringgold V. Stone, 184. Riopelle v. Doellner, 74, 93. Ripson V. Hart, 431. Ritchie v. Burke, 353. Ritchie v. McMullen, 194, 249, 251, 258. Ritson V. Dodge, 338. Hitter v. Ritter, 421. Roach V. Glos, 308. Robards v. Clayton, 377. Roby V. Chicago, etc. Co., 101. Roberts \r. Madocks, 145. Roberts v. Pipkin, 405. Roberts v. Railway Co., 499. Robertson v. Bullions, 431. Robertson v. Miller, 338. Robertson v. Schwenk, 238. Robertson v. Wheeler, 427. Robertson v. Wright, 163. Robinson v. Baugh, 68. Robinson v. Cathcart, 80. Robinson v. Fair, 410. Robinson v. Fife, 476. Robinson v. Kunkleman, 130. Robinson v. Robinson, 416. Robinson v. Sharp, 423. Robrecht v. Robrecht, 403, 406. Robson V. Dodds, 400. Robson's Appeal, 485. Roche V. Marvin, 464. Roche V. Morgell, 134, 176, Rock V. Slade, 56. Roddy V. Brick, 460. Rodenbarger v. Bramblett, 400. Rodgers v. Rodgers, 255. Rogers v. De Forest, 247. Rogers v. Mitchell, 238. Rogers v. Reissner, 222. Rogers v. Rogers, 252. Rogers v. Taylor, 432. Rogers v. Traders' Mfg. Co., 52. Rogers, etc. Works v. Erie, etc. Co., 401. Roland Park Co. v. Hull, 399. Rolfe V. Burnham, 388. Rollins V. Henry, 335, 389. Roorbach v. Lord, 64. Root V. Woolworth, 265. Roper V. McCook, 388. Roscarrick v. Barton, 480. Rose V. Woodruff, 98, 327. Ross V. Leavitt, 481. Ross V. Ramsey, 413. Rosse V. Rust, 318. Roth V. Roth, 38, 87. Roundtree v. McKay, 493. Rowan v. Runnels, 312. Rowe V. Tede, 139, 167. Rowley v. Ridley, 97. Rowley v. Towsley, 418. Royoe v. Latshaw, 315. Royle V. Jones, 365. Rozek V. Redzinski, 483. Rozier v. Griffith, 412. Ruddy v. Myton, 401. Rudolph V. Covell, 430. Ruegger v. Indianapolis, etc. Ry. Co., 146. TABLE OF CASES CITED. Ixi References are to sections. Ruff V. Doty. 477. Rumfelt V. Canal, etc. Co., 362. Rummey v. Detroit, etc. Co., 388. Ruppel V. Missouri, etc. Co., 12. Russell V. Clark, 327. Russell V. Clark's Ex'rs, 49. Russell V. Craig, 273. Russell V. East Anglian Ry. Co., 396. Russell Y. Farley, 405. Russell V. Martin, 250. Russell V. Tailor, 445. Russell V. Waite, 337. Russia Cement Co. v. Lepage, 400. Rutland v. Paige, 214. Ryan v. Bibb, 441. Ryan v. Duncan, 184. Ryan v. Shawneetown, 114. Ryer v. Fletcher-Ryer Co., 411. Ryerson v. Eldred, 332. Ryman v. Ryman's Ex'rs, 455. Ryon V. Loveless, 436. Sackner v. Sackner, 468. Sadler v. Taylor, 51. Safe Deposit Trust Co. v. Baker, 11. Safe Deposit, etc. Co. v. City of Anniston, 399. Sage V. Mosher, 493. Sage V. Railway Co., 491. Sager v. Tupper, 478. Sager Mfg. Co. v. Smith, 392. Saginaw, etc. Ry. v. Wildman, 399. Sagory v. Bayless, 332. Salisbury v. Miller, 256. Salsbury v. Ware, 208. Salter v. Sutherland, 64. Saltmarsh v. Bowen, 183. Saltus V. Tobias, 134. Salvidge v. Hyde, 61. Sanborn v. Adair, 132. Sanborn v. Osgood, 468. Sanborn v. Sanborn, 55, 246. Sanders v. Godley, 77. Sanders v. King, 134. Sanders v. Village of Riverside, 428. Sandford v. Gaboon, 481. Sandford V. Flint, 478. Sandford v. McLean, 448. Sandford v. Sinclair, 390, 490. Sandford V. Wright, 492. Sands v. E. S. Greeley, etc. Co., 395. Sands v. Hildreth, 497. Sandusky v. Faris, 196, 200, 204, 406. San Francisco, etc. Soc. v. Thomp- son, 343. Sanger v. Nightingale, 477. Sanxay v. Hunger, 425. Sarbar v. Rankin, 399. Satterfleld v. Speir, 419, 420. Satterlee v. Kobbe, 411. Savage v. Johnson, 341, 347, Savage v. Worsham, 31, 257. Savannah v. Jesup, 359. Savings Bank v. Asbury, 462. Savings Bank v. Taylor, 418. Savings, etc. Soc. v. Davidson, 208. Sawyer v. Campbell et al., 234. Sawyer v. Hovey, 417. Sawyer v. Meyer, 490. Sawyers v. Sawyers, 421. Scanlan v. Scanlan, 183. Schack V. McKey, 387. Scheerer v. Goodwin, 317. Schenck v. Peay, 224. Schilb V. Moon, 451. Schilcer v. Brock, 191. Schlecht's Appeal, 387. Schmidt V. Braley, 270. Schmidt v. Louisville, etc. Ry. Co., 401, 431. Schoenpflug v. Ketcham, 101. Schofield V. Coal, etc. Co., 491. Scholfleld V. Pope, 363. School District v. McCloon, 250. Schooner v. Bright, 399. Schoonmaker v. Bonnie et al., 431. Schrimper v. Chicago, etc. Ry. Co., 421. Schryver v. Teller, 474. Schultz V. Insurance Co., 194, 204. Schuyler v. Booth, 451. Ixii TABLE OF CASES CITBD. Heterences are to sections. Schwartz v. Costello, 334. Schwartz v. Sears, 209, 210, 322. Schwartz v. Wendell, 164, 165, 207, 209. Scofield V. Lansing, 60. Scott V. Cook, 308. Scott V. Cox, 390. Scott V. Lalor, 211. Scott V. Neeley, 491. Scott V. Rand, 437. Scott V. Rayment, 454. Scott V. Surman, 153. Scott V. Wallace, 388. Scovill V. Seeley, 111. Sea Ins. Co. v. Day, 472. Seals V. Robinson, etc. Co., 31. Seaman v. Seaman, 408. Search v. Search, 26. Searle v. Chapman, 483. Sears v. Hardy, 49, 53. Sears v. Taylor, 411. Seaton v. Fiske, 469. Seattle, etc. Ry. Co. v. Union Trust Co., 249. Sebom v. Beckwith, 257. Secombe v. Campbell, 138. Secor V. Singleton, 265. Security, etc. Ass'n v. Moore, 395. Security, etc. Co. v. Mattern, 466. Security, etc. Co. v. St. Paul, etc. Co., 445. Seidenberg v. Davidson, 400. Seisler v. Smith, 316. Seldon v. Vermilya, 256. Selinger v. Myers, 483. Sengfelder v. Hill, 389. Sercombe v. Catlin, 395 Seton V. Slade, 232. Settlemeir v. Sullivan, 84. Sewall V. Brainard, 290. Seymour v. Bowles, 418. Seymour v. Canandaigua, etc. Ry. Co., 395. Seymour v. Delancy, 430, 431. Shaft V. Insurance Co., 289. Sharon v. Hill, 144. Sharon V. Terry, 281. Sharp V. Carlile, 186. Shaver v. Heller & Merz Co., 400. Shaw V. Allen, 425 Shaw V.Bill, 266. Shaw V. Chester, 380. Shaw V. Coster, 375, 376, 377, 379. Shaw V. Davis, 400. Shaw V. Hoadley, 327. Sheahan v. Judge of Wayne Cir- cuit, 54, 59. Sheehy v. Mandeville, 97, 463. Sheerer v. Agee, 249. Sheerer v. Goodwin, 317. Sheets v. Railway Co., 83. Sheets v. Selden, 36. Sheffield, etc. Ry. Co. v. Gordon, 322. Shelden v. Wallbridge, 93. Sheldon v. Bradley, 460. Sheldon v. Hawes, 336. Sheldon v. Holmes, 468. Shellabarger, etc. Co. v. Willing, 260. Shelton v. Farmer, 445. Shepard v. Murray, etc. Co., 296. Shepard v. Shepard, 31. Shepard v. Wright, 86. Shepherd v. Ware, 85. Sheridan v. Cameron, 47. Sheridan v. Colvin, 400. Sheridan Brick Works v. Marion Trust Co., 388. Sherlock v. Village of Winnetka, 114. Shermer v. Merrill, 447. Sherry v. Smith, 123. Shickle v. Watts, 489. Shields v. Barrow, 49, 177, 215, 257, 327. Shields v. McClung, 406. Shiell V. M'Nitt, 400. Shingleur v. Swift, 115. Shipbrooke v. Hinchinbrook, 289. Shirley v. Rice, 418. Shook V. Proctor, 209. Shore v. Lucas, 489. Shorten v. Judd, 316. Shrewsbury v. Shrewsbury, etc. Ry. Co., 398, 401. TABLE OF OASES CITED. Ixiii References are to sections. Shufelt V. Shufelt, 463. Sibert v. McAvoy, 418. Sichler v. Look, 468. Sill V. Ketcham, 467. Silva V. Garcia, 399. Silva V. Rankin, 399. Silvey v. Dowell, 445. Sims V. Smith, 428. Slmers v. Saltus, 468. Simmons v. Taylor, 215. Simmons Medicine Co. v. Sim- mons, 400. Simons v. Mllman, 145. Simpson v. Ennis, 447. Simpson v. Pittsburg, etc. Co., 399. Simpson v. Simpson, 416. Sims V. Burk, 212. Singer, etc. Co. v. Domestic, etc. Co., 399. Singer Mfg. Co. v. June Mfg. Co., 400. Sioux City, etc. Ry. Co. v. Trust Co., 49. Skeele v. Stanwood, 492. Skinner v. Dayton, 454. Skip V. Hart, 447. Skip V. Harwood, 396. Slack V. Black, 117. Slack V. Wolcott, 278. Slater v. Breese, 467, 474. Slater v. Maxwell, 239. Slater v. Sutherland, 64. Slemmer's Appeal, 454. Slingluff V. Gainer, 83. Sloan V. Moore, 388, 455. Sloan V. Whiteman, 350. Sloo V. Law, 400. Small V. Boudinot, 38. Smallwood v. Lewin, 270. Smiley v. Wright, 408. Smith V. Austin, 33, 448, 475, 478. Smith V. Babcock, 248, 251, 270. Smith V. Bank, 60. Smith V. Barrie, 400. Smith V. Bates Machine Co., 9. Smith V. Blake, 132. Smith V. Brittenham, 52, 117. Smith V. Brown, 304. Smith V. Butcher, 385. Smith V. Clay, 151. Smith V. Cuddy, 421. Smith V. Fitchett, 388. Smith V. Fitting, 468. Smith V. Gardner, 399. Smith V. Harrison, 446. Smith V. Henry Co., 110. Smith V. Lathrop, 146. Smith V. Life Ins. Co., 444. Smith V. Mathews, 428. Smith V. McDowell, 197. Smith V. McNeal, 158. Smith V. Newton, 468. Smith V. Railway Co., 394, 492. Smith V. Reynolds, 110. Smith V. Rock, 399. Smith V. Saginaw City Bank, 327. Smith V. St. Louis Mutual, etc. Co., 182. Smith V. Shay, 475. Smith V. Smith, 400, 405, 410, 416, 418. Smith V. Sneed, 335. Smith V. Thompson, 488, 496, 497. Smith V. Trimble, 328. Smith V. Valence, 480. Smith V. Williams, 50, 53. Smith et al. v. Roten et al., 50. Snodgrass v. Butler, 372, 380. Snook V. Pearsall, 132. Snook V. Zentmyer, 478. Snow V. Pressey, 475. Snyder v. Ft. Madison, etc. Ry. Co., 401. Snyder v. Grandstaff, 40. Society v. Watson, 345. Solomon v. Kirkwood, 454. Solt V. Anderson, 434. . Somerby v. Buntin, 117. Soule V. Hough, 85. Southern Bldg. & Loan Ass'n v. Carey, 298. Southern Bldg. & Loan Ass'n T. Price, 395. Southern Development Co. v. Houston, etc. Ry. Co., 394. Southern Exp. Co. v. Ensley, 400. Ixiv TABLE OF CASES CITED. References are Southern Life, etc. Co. v. Lanier, 132. Southern Pae. Ry. Co. v. Temple, 337. Southern Ry. Co. v. Franklin, etc. Ry. Co., 399, 431. Southern Ry. Co. v. "United States, 237. Souzer v. De Meyer, 120, 138, 141. Spargur v. Hall, 468. Sparhawk v. Union Pac. Ry. Co., 398. Spaulding v. Farwell, 183. Spear v. Hadden, 465, 467, 468. Spears v. Cheatam, 101. Speer v. Speer, 411. Speights V. Peters, 388. Speiglemyer, Adm'r, v. Crawford, 493. Spence v. Duren, 402. Speyrer v. Miller, 405. Spicer v. Waters, 168. Spier et al. v. Robinson, 280. Spikes V. Brown, 464. Spiller V. Spiller, 406. Spinney v. Spinney, 85. SpofEord V. Manning, 185, 238. Sprague v. Rhodes, 117. Sprague v. Soule, 370. Sprague V. West, 380. Springer v. Law, 473. Springer v. Springer, 358. Spurgin v. Adamson, 477. Squire v. Hewlitt, 254. St. John V. Turner, 480. St. Louis, etc. V. Knapp, 26. St. Louis, etc. Co. v. Alliance, etc. Co., 377, 382. St. Louis, Qtc. Co. V. Geppart, 465. St. Louis, etc. Ry. Co. v. Camden Bank, 163. St. Louis, etc. Ry. Co. v. Southern Express Co., 359. Staacke v. Bell, 464. Stackpole v. Hancock, 307. Stadler v. Hertz, 67. Stafford -v. Brown, 196, 290. Stafford et al. v. Hewlett, 260, 263. to sections. Stafford v. Hulbert, 497. Stafford V. Mott, 493. Staffords v. King, 405. Stahl V. Dehm, 460. Stahl V. Hammontree, 468. Stamford Bank v. Benedict, 450. Standard Fashion Co. v. Siegel- Cooper Co., 400. Stanton v. Embrey, 146. Starbird v. Eaton, 344. , Stark V. Capitol City Dairy Co.. 399. Stark et al. v. Brown et al., 211. Starling v. Brown, 377. Starr v. Ellis, 447. State V. Chittenden, 302. State V. Lorenz, 419. State V. Martin, 83. State V. May, 399. State V. Mitchell, 257. State V. Murphy, 106. State V. New Orleans, etc. Co., 401. State V. North Central Ry. Co., 395. State V. Orwig, 361. State V. Richmond, 158. State V. Saunders, 400. State V. Williams, 38. State ex rel. Fields v. Cryts, 482, 483. State Bank V. Bank, 287, 289. State Bank v. Belk, 486. State Bank V. Roche, 482. Staude v. Keck, 114. Stead V. Course, 176. Stealman v. Greenwood, 83. Steamgauge, etc. Co. v. Meyrose, 158. Stebbins v. Timm, 365. Steele v. Walker, 391. Steen v. March, 351. Steere v. Hoagland, 489. Steff V. Andrews, 135, 176. Steigerwait v. Rife, 9. Steinbaeh v. Hill, 421. Stenton v. Jerome, 163. Stephens v. Soule, 434. Stephens v. Van Buren, 101. TABLE OF CASES CITED. Ixv References are to sections. Stephenson v. Davis. 113. Stephenson v. Kilpatrick, 481. Stephenson v. McClintock, 440. Stephenson v. Stephenson, 331. Sterling v. Forrester, 445. Sternberg v. Wolff, 388. Sterns-Rogers Mfg. Co. v. Brown, 400. Stetson V. Hopper, 494. Stevens v. Land, etc. Co., 57. Stevens v. Missouri, etc. Co., 401. Stevens v. Whitehead, 493. Stevenson v. Austin, 50, 53. Stevenson V. Kurtz, 271. Steward v. Stevens, 488, 497. Stewart v. Taylor, 361. Stewert v. Groce, 473. Stiles V. Cain, 434. Stille V. Hess, 31. Stillwell V. Hamm, 479. Stimson v. Lewis, 53. Stine V. Hayes, 418. Stinson v. Gardiner, 111. Stlnson V. Hildrup, 67. Stith V. Fullinwider, 262. Stockhouse v. Barnstone, 169. Stockton V. American Tobacco Co., 265. Stockton V. Central Ry. Co., 400. Stockton V. Williams, 337, 426,428. Stockton, etc. Soc. v. Harrold, 215, 470. Stockwell v. Fitzgerald, 9. Stoddard v. Burge, 428. Stokes V. Famsworth, 183. Stone V. Reed, 372, 377, 380. Stone V. Welling, 88. Stoors V. Barker, 418. Storm V. Waddell, 498, 499. Storms V. Storms, 237. Stout V. Shew, 251. Stoutenburgh v. Tompkins, 300. Stow V. Russell, 110. Stow V. Schiefferly, 467. Stowell V. Tucker, 12. Stradley v. Circuit Judge, 337. Strange v. Richmond Ry. Co., 131. Stratton v. Land, etc. Co., 428. Strauss v. Bendheim, 436. Strawberry Valley Cattle Co. v. Chipman, 399. Street v. Rigby, 166. Streight v. Junk, 492. Stribling et ux. v. Hart, 337. Strong V. Clem, 408. Stroup V. Chalcraft, 108. Stroupe V. Bridges, 421. Strouse v. Elting, 155. Strump V. Reger, 428. Stuart V. Stewart Co., 400. Sturbuck v. Loan Co., 110. Sturgis V. Fay, 86. Stutsman County v. Wallace, 312. Styles V. Tyler, 358. Suburban, etc. Co. v. Naugle, 403. Sullings V. Goodyear Co., 403. Sullivan v. Judah, 396. Sullivan v. Phillips, 115. Sullivan v. Portland, etc. Ry. Co., 184. Sullivan v. Rabb, 399. Sullivan v. Royer, 317. Sun, etc. Ass'n v. Buck, 467. Supervisors v. Railway Co., 197. Suplee V. Callaghan, 388. Supreme Ct. etc. v. Supreme Ct. etc., 406. Supreme Lodge, etc. v. Raddatz, 377. Supreme Lodge, etc. v. Simering, 400. Surine v. Winterbotham, 465. Sutcliffe V. The State, 15. Sutliff V. Dayton, 431. Sutton V. Head, 400. Suydam v. Bartle, 238. Suydam v. Northwestern Ins. Co., 489. Suydam et al. v. Trusdale, 269, 270. Swain v. Knapp, 163. Swanson v. Kirby, 400. Swayze v. Swayze, 114. Swearingen v. Lahner, 462. Sweeney v. Kaufmann, 462. Sweeney v. O'Hara, 430. Ixvi TABLE OF CASES CITED. References are Sweeney v. Williams, 9. Sweet V. Converse, 115, 121, 124. Sweezy v. Collins, 468. Swift V. EcMord, 61, 247. Swihart v. Shaum, 490. Sylvester v. Hubley, 344. Tabler v. Castle, 332. Tabor v. Cook, 426. Tabor v. Hoffman, 400. T. & A. Ry. Co. V. Railway Co., 68. Taintor v. Franklin Nat. Bank, 322. Tait V. Am. etc. Co., 425, 451. Talcott V. Grant Wire & Spring Co., 499. Tallmadge v. Bank, 400. Talmage v. Pell, 218, 220, 269. Tanenbaum v. New York Fire Ins. Exch., 400. Tankersly v. Pettis, 343. Tapley v. Goodsell, 330. Tappan v. Boston, etc., 228. Tappan v. Evans, 261, 388, 463, 492. Tappan v. Grey, 400. Tarbell v. Millard, 497. Tarlton v. Vietes, 237. Tartar v. Gibbs, 132. Tate V. Fields, 189, 327. Tate v.Wyatt, 235. Tavenner v. Barrett, 51. Tawas, etc. Ry. Co. v. Circuit Judge, 406, 487. Taylor v. Bowker, 486. Taylor v. Dillenburg, 477. Taylor V. King, 39, 114. Taylor v. Morrison, 445. Taylor v. Ormsby, 85. Taylor v. Perkins, 487. Taylor v. Street Ry. Co., 53, 60. Taylor v. Taintor, 400. Taylor v. Taylor, 112. Taylor v. Whitmore, 465. Tazewell, etc. v. Whittle's Adm'r, 155. Tedder v. Stiles, 256, 327. Tenbrook v. Jessup, 408. Tennant v. Dunlop, 257. Tennent v. Battey, 492. to sections. Tenney v. State Bank, 184. Tenn. Ice Co. v. Raine, 327. Terhune v. Colton, 233. Ter Knile v. Riddick, 31. Terry v. McLure, 253. Thain v. Rudisill, 328. Thallmann v. Thomas, 365. Thames, etc. Co. v. Rembert's Adm'r, 497. Thayer v. Goddard, 344. Thayer V. Lane, 130, 331, 410, 413.. Thayer v. Swift, 388, 488, 489. The Davis, 58. The Palmyra, 362. The Siren, 58. Thebus v. Smiley, 445. Theison v. Watts, 430. Third Nat. Bank v. Skillings et 'al., 372. Thomas V. Doub, 270. Thomas v. Parley, 46. Thomas v. Graham, 172. Thomas V. Harvie, 348, 355. Thomas v. Oakley, 399. Thomas v. Thomas, 408. Thomason v. Neeley, 219, 225.- Thompson v. Andrus, 400. Thompson v. Diffenderfer, 390. Thompson v. Ebbets, 371. Thompson v. Geary, 405. Thompson v. Goulding, 333, 341.. Thompson v. Hardman, 416. Thompson v. Lynan, 471. Thompson v. Maxwell, 343. Thompson v. Morley, 443. Thompson v. Parker, 117. Thompson v. Perrine, 312. Thompson V. White, 323. Thompson v. Wooster, 98. Thompson v. Yates, 489. Thorns v. King, 87. Thomson v. Brooke, 359. Thomson V. Wooster, 98, 101, 327.- Thomson-Houston Electric Co. v.. Exeter, etc. Co., 400. Thorn v. Germand, 264. Thorn v. Thorn, 421. Thornton v. Bank, 387. TABLE OF CASES CITED. Ixvii Eeferences are to sections. Thornton v. Roll, 399. Threefoot v. Hillman, 469. Throckmorton v. Pence, 411. Thurston v. Big, etc. Co., 215. Tickle V. Short, 163. Tiede v. Schneldt, 400. Tiffany v. Bowerman, 263. Tiffany v. Tiffany, 421. Tigard v. Moffitt, 399. Tilgham v. Werk, 341. Tillinghast v. Champlin, 251. Tindal v. Drake, 411. Tinkler v. Swaynie, 400. Titcomb v. Vantyle, 316. Title, etc. Co. v. Weiher, 466. Tobey et al. v. Foreman, 214. Todd V. Daniel, 360. Todd V. Munson, 443. Todd V. Ogleby, 452. Toledo & Ann Arbor Ry. Co. v. Detroit, etc. Ry. Co., 399. Toledo, etc. Ry. Co. v. Pa. Co. et al., 401. Toles V. Johnson, 38. Tompkins v. Hollister, 177, 256, 468. Tompkins v. Ward, 443. Tompkins v. "Wiltberger, 98. Toms V. Railway Co., 86. Toms V. Williams, 59. Tooker v. Slosson, 229. Torrans v. Hicks, 85. Torrent v. Booming Co., 425. Torrent V. Hamilton, 39, 61, 114. Torrent v. Rogers, 192. Toulmin v. Reid, 382. Towle V. Pierce, 50. Towles V. Edwards, 468. Town V. Alexander, 465, 468. Town of Mason v. Ohio, etc. Ry. Co., 400., Town of Mentz v. Cook, 183. Town of Mt. Morris v. King, 117. Town of North Hempstead v. Gregory, 26. Town of Springport v. Sav. Bank, 425. Town of Sullivan v. Phillips, 60. Town of Venice v. Woodruff, 423. Townsend v. Graves, 314. Townshend v. Williams, 425. Township v. Blanchard, 431. Township v. Burch, 67. Tracewell v. Boggs 252. Trader v. Jarvis, 253. Traphagen v. Voorhees, 345, 347. Treadwell v. Brown, 500. Treat's Appeal, 437. Treiber v. Shafer, 219. Tremolo Patent, 246. Tremper v. Brooks, 123. Trenton, etc. Co. v. Rossell, 317. Trenton Pass. Ry. Co. v. Wilson, 126. Trimble v. American Sugar Ref. Co., 110. Triplett v. Gill, 98. Tripp V. Vincent, 337. Trowbridge v. Stone's Adm'r, 154. Troy, etc. Bank v. Bowman, 467. Trull V. Trull, 442. Truman v. Love, 9. Trust, etc. Co. v. Spartenburg, etc. Co., 388. Trust & Fire Ins. Co. v. Jenkins, 256. Trustee v. Hunting, 438. Tryon v. Sutton, 250. Tubeworks v. Ballou, 490. Tuck V. Calvert, 447. Tucker v. Bean, 49. Tucker v. Harris, 158. Tucker v. Lake, 464. Tucker v. Madden, 419. Tufts V. Tufts, 336. Tunno v. Robert, 98. Turner v. Berry, 350, 356. Turner v. Hodgson, 333. Turner V. Jenkins, 102. Turnpike Co. v. Ferree, 380. Turrell v. Byard, 184. Tutwiler v. Dugger, 458. Tye V. Catching, 402 Tyler v. Daniels, 440, 443. Tyler v. Peatt, 490. Tyson v. Decatur, etc. Co., 132. ilxviii TABLE OF OASES CITED. References are to sections. Ulmen v. laeger, 110. Underwood v. Hitchoox, 430. Union Bank v. Barker, 187. Union Branch, etc, Ry. Co. v. Bast Tenn. etc. Ry. Co., 133. Union Central Life Ins. Co. t. Phillips, 11. Union, etc. Co. v. Bonnell, 463. Union, etc. Co. v. Curtis, 463. Union Mills, etc. Co. v. Dangberg, 50, 57. Union Sav. etc. Co. v. Ahrens, 362. Union Sewer Pipe Co. v. Olson, 35. Union Street Ry. Co. v. City ol Saginaw, 213. Union Switch, etc. Co. v. Phila- delphia, etc. Ry. Co., 285. Union Trust Co. v. Atchison, etc. Ry. Co., 395. Union Trust Co. v. Illinois, etc. Co., 388. Union University v. Green, 401. United Ry. Co. v. Long Dock Co., 251, 270. United States v. Beebe, 114. United States v. Clark, 58. United States v. Crosby, 312. United States v. Ferguson, 309. United States v. Fields, 271. United States v. Freight Ass'n, 308. United States v. Guglard, 399. United States v. Howland, 493. United States v. Hughs et al., 20. United States v. Pratt, 30. United States v. Seaman, 401. United States v. Throckmorton, 345. United States v. Union Pac. Ry. Co., 20, 400. United States v. Wonson, 358. United States v. Yates, 92. United States Mineral Wool Co. v. Manville, etc. Co., 39. Updegraff v. Crans, 400. Updike V. Adams, 416. Updike V. Parker, 328. Upham V. Wyman, 153. Utica Ins. Co. v. Lynch, 183, 202. Vail V. Arkell, 212. Vail V. Hammond, 491. Vail's Ex'rs v. Railway Co., 108. Van Cleef v. Sickles, 493. Van Courtlandt v. Beekman, 183, 413. Vandeford v. Stovall, 62. Vanderpool v. Notley, 489, 495. Vanderveer V. Holcomb, 221. Vanderveer v. Striker, 489. Vanderveer's Adm'x v. Holcomb, 325. Van Dyke v. Davis, 304. Van Dyne v. Vreeland, 117. Van Hise v. Van Hise, 39, 114. Van Hook v. Pendleton, 315, 316. Van Hook v. Whitlock, 155, 184. Van Houten v. McKelway, 439. Van Meter v. Van Meter, 324. Vann v. Bennett, 388. Van Orden v. Van Orden, 123. Van Reimsdyke v. Kane et al., 58. Van Rensselaer v. Brice, 202. Van Riper v. Claxton, 250. Van Schroder v. Brittain, 186. Van Slyke v. Hyatt, 285. Van Valtenburg v. Alberry, 220. Van Wert v. Chidester, 475. Van Winkle v. Owen, 377. Varick V. Dodge, 135, 176. Varick v. Edwards, 260, 263. Varian v. Barrian, 377. Varney v. Pope, 398 Vary v. Shea, 418. Vaughn v. Nims, 473. Vaughn v. Williams, 97. Vaupell V. Woodward, 184. Veal V. Veal, 443. Vegelahn v. Gunter, 400. Veghtc V. Water Power Co., 131. Veile V. Blodgett, 208. Vermilyea v. Fulton Bank, 191. Vermont, etc. Co. v. Bank, 246. Vermont, etc. Ry. Co. v. Vermont, etc. Ry. Co., 388. Vernon v. Blackerby, 50. Verplanck v. Insurance Co., 247, 255, 384, 390, 394. Verplank et al. v. Caines, 108. TABLE OF CASES CITED. Ixix References are to sections. Vigers v. Lord Audley, 265. Village of Grandville v. Jenison, 61. Vincent v. Moore, 32. Vinton v. King, 468. Virginia, etc. Co. v. Home Ins. Co., 400. Voak V. Nat. Inv. Co., 262. Voorhees v. Bonestell, 38. Voshell & Heaton v. Hynson et al., 390. Vreeland v. Loubat, 466. Vroom V. Ditmas, 184. Vyvyan v. Vyvyan, 377. Wadev. Miller, 470. Wade V. Pulsifer, 145. Wadsworth v. Blake, 448. Wadsworth v. Lorenger, 475. Wagar v. Bowley, 303. Wagar v. Stone, 460. Wagner v. Cohen, 473. Wagnon v. Pease, 467. Wakefield v. Marr, 49. Wakeman v. Dodd, 184. Wakeman v. Kingsland, 370, 382. Walden v. Bodley, 177, 259, 318. Waldo V. Rlchter, 77. Waldo V. Waldo, 51. Walker v. Converse, 46. Walker v. Hallett, 260. Walker v. Hill's Ex'rs, 184. Walker v. Jack, 196, 201. Walker v. Kelly, 431. Walker v. Locke, 117. Walker v. Powers, 60. Walker v. Walker, 247, 323, 414. Walker v. Whipple, 454. Walker v. Williams, 26, 33. Wall V. Mason, 449. Wall & Burnsides v. Hill, 408. Wallace v. Dunning, 145, 465, 467, 468. Wallace v. Field, 238, 290, 291, 292. Wallace v. Harris, 9. Wallace v. Loomis, 388, 391, 471. Wallace v. McBride, 475. Wallace v. Wainwright, 437. Wallen v. Cummings, 298, 299. Wallen v. Moore, 470. Waller v. Shannon, 68. AValser v. Seligman, 489. Walsh V. Barney, 60. Walthall's Ex'rs v. Rives, etc. Co., 207. Ward V. Bank, 322. Ward V. Hollins, 493. Ward V. Jewett, 101, 322. Ward V. Pacific Mut. etc. Co., 395. Ward V. Petrie, 392. Ward V. Sebring, 224. Ward V. Swift, 396. Ward V. Whitfield, 261. Ware v. Salsbury, 301. Waring v. Robinson, 388. Waring v. Suydam, 120. Warner v. Everett, 469. Warner v. Juif, 338. Warner v. Schweitzer, 431. Warner v. Whittaker, 304. Warnock v. Harlow, 377. Warren v. Adams, 345. Warren v. Farmer, 400. Warren v. Warren, 183. Warren, etc. Co. v. Clarion Co., 403. Washington Ry. Co. v. Bradleys, 219. Water Com'rs v. Detroit, 400. Watrous v. Allen, 400. Watson V. Conkling, 184. Watson V. Ferrell, 399. Watson V. Hinchman, 331. Watson V. Hopkins, 158. Watson V. Lyon Brewing Co., 49. Watson V. Murray, 26. Watson V. Smith, 335. Watson V. Sutherland, 9. Watson V. Watson, 9. Watterson v. Miller, 406. Watts V. Frenche, 233. Watts V. Rice, 345, 347. Way V. Mullett, 477. Way-Cross Ry. Co. v. Southern Ry. Co., 401. Wayland v. Tucker, 445. Weatherbee v. Weatherbee, 84. Ixx TABLE OF CASES CITED. References are to sections. Weatherly v. Water Co., 388. "Weaver v. Van Akin, 442. Weaver v. Wilson, 468. Webb V. Hunt, 483. Webb V. Pell, 343, 356. Webb V. Sbaftsbury, 444. Webb V. Vt. etc. Ry. Co., 441, 442. Webb V.Webb, 420. Webber v. Gage, 33. Webster v. Clark, 486. Webster et al. v. JJarris et al., 46. Webster v. Hitchcock, 359. Weed V. Smull et al., 164. Weeden v. Hawes, 468. Weekes v. Sunset, etc. Co., 38. Weeks v. Adamson, 344. Weeks v. Garvey, 447. Weightman v. Powell, 103. Weikel v. Gate, 374. Welch V. Welch, 337. Weller v. Summers, 476. Wells V. Chapman, 473. Wells V. Cruger, 106. Wells V. Mortgage Co., 77. Wells V. Wood, 269. Wells, Fargo, etc. Co. v. Miner, 372. Welsbach Lt. Co. v. Mahler, 308. Welsh V. Arnett, 252. Welsh V. Louis, 320. Welsh's Appeal, 411. Wendell v. Crysler, 418. Wendell v. Van Rensselaer, 50. Wenegar v. Bollenback, 301. Wenzel v. Milbury, 406. Wessell V. Sharp, 38. West V.Hall, 256. West V. M'Carty, 387. West V. Randall, 48. West V. Reynolds, 26. Westbrooke v. Comstoek, 54. Westcott V. Cady, 280. Western Ins. Co. v. Insurance Co., 46. Western Union Tel. Co. v. Rogers, 400. Westervelt v. Ackerson, 285. Westmoreland, etc. Co. v. De Witt; 400. Weston V. Berkeley, 167. Weston V. Stoddard, 410. West Pub. Co. V. Co-Op. Pub. Co., 400. West Virginia, etc. Co. v. Vinal, 212, 215. Wethered v. Elliott, 349. Wetherill v. Kein, 416. Whalen v. Stephens, 322, 453. Wharton v. Clements, 207. Wheeler v. Clinton Canal Bank, 9. Wheeler v. Foster, 467. Wheeler v. Gleason, 114. Wheeler v. Willard, 447. Whelan v. Osgoodby, 421. Whelan v. Sullivan, 246. Whetstone v. Whetstone, 56. Whipple V. Eddy, 316. Whipple V. Guile, 60, 116. Whit V. Ray, 64. Whitbeck v. Edgar, 115, 215. Whitbread v. Brockhurst, 134. Whitcomb v. Sutherland, 475. White V. Bower, 223. White V. Buloid, 212, 225. White V. Guthrie, 328. White V. Mackey, 471. White V. Morrison, 237. White V. Polleys, 483. White V. Port Huron, etc., 418. White V. Walker, 335. White's Heirs v. White's Adm'rs, 187. Whitehead v. Henderson, 447. Whitehead v. Sweet, 114. Whitehead v. Wooten, 386, 390. Whiteman v. Fayette Fuel Gas Co., 401. Whiting et al. v. Bank, 341, 351, 355. Whiting V. Mayor, etc., 130. Whitlock V. Duffield, 9, 184. Whitlock V. Willard, 411. Whitmarsh v. Campbell, 246 Whitney v. Belden, 328. Whitney v. Mayo, 50. Whitney v. Whitney, 414. Whittemore v. Patten, 183, 197, 202. TABLE OF OASES CITED. Ixxi References are to sections. "Whyte V. Arthur, 225, 227. Widdecombe v. Childers, 438. Wiggan V. Mayor of New York, 33. "Wiggans v. Armstrong, 492. Wiggins V. McCoy, 359. Wight V. Downing, 210, 213. Wight V. Roethllsberger, 61. Wightman v. Powell, 103. Wilcher v. Robertson, 83. , Wilcox V. Allen, 213, 463, 470. Wilcox V. Fairhaven Bank, 450. Wilcox y. National Bank, 392. Wilcox V. Kassick, 155. Wilcox V. Pratt, 433. Wilcox V. Wilcox, 362. Wiles V. Trustees, etc., 116. Wiley V. Mullen, 434. Wilhelm v. Lee, 463. Wilhelm's Appeal, 256. Wilkin V. Wilkin, 412. Wilkins v. Gibson, 451. Wilkinson v. Bauerle, 309. Wilkinson v. Colley, 400. Wilkinson v. Kneeland, 106. Willamette Iron Works v. Oregon, etc. Co., 401. Willard v. Tayloe, 429, 430, 431. Willard V. Willard, 410. Williams v. Bankhead, 49, 50. Williams v. Breitling, etc. Co., 400. Williams v. Cong. Church, 210. Williams v. Corwin, 97, 98, 101. Williams v. Gibbes, 270. Williams v. Hagood, 33. Williams v. Hubbard, 126, 130, 388, 486, 495, 500. Williams v. Huston, 418. Williams v. Leech, 433. Williams v. Matthews, 370, 380. Williams v, Morgan, 294. Williams v. Thompson, 104. Williams v. Weaver, 83. Williams' Adm'r v. Welton's Adm'r, 86. Williamson v. Jones, 400, 411. Williamson y. Monroe, 11. Williamson v. Stone, 477. Willlngham v. King, 33. Willis V. Jernegan, 164. Wilmarth v. Woodcock, 112, 130. Wilmer y. Atlantic, etc. Ry. Co., 395. Wilmerding, etc. Co. y. Mitchell, 475. Wilson V. Addison, 491, 495. Wilson V. Carrico, 499. Wilson V. Castro, 50. Wilson V. City Bank, 493. Wilson V. City of Wheeling, 359. Wilson V. Eggleston, 31, 33, 477. Wilson y. Green, 413. Wilson V. Greenwood, 455. Wilson V. Hill, 399. Wilson y. Maddox, 390. Wilson V. Smith, 416. Wilson y. Spring, 327. Wilson y. Railway Co., 86. Wilson y. Rankin, 394. Wilson V. Riddle, 316. Wilson V. Wilson, 154. Wilson y. Wolf, 471. Wilson y. Woodruff, 188. Wilt V. Electric Co., 392. Wilt y. Huffman, 237, 238. Winans y. Wilkie, 466. Winchester y. Winchester, 351. Windsor y. McVeigh, 286. Winebrenner v. Colder, 31. Windfall, etc. Co. y. Patterson, 400. Wineman y. Circuit Judge, 376. Wing y. Fairhayen, 403. Wing y. Spaulding, 370, 379, 382. Wingate v. Haygood, 158. Wingo y. Hardy, 209. Winn V. Albert, 260. Winnipiseogee Lake Co. v. Young, 122. Winslow V. Crowell, 250. Winslow y. Leland, 489. Winson v. Bailey, 187. Winston y. Mitchell, 250. Winter v. Kansas City, etc. Ry. Co., 422. Winter y. Montgomery, 362. Winters y. Rush, 441. Wiscart et al. y. Dauchy, 358. Ixxii TABLE OF CASES CITED. References are to sections. Wise V. Twiss, 246. Wiseman v. Commissioners, 362. Wiser v. Blackly, 309, 341. Withers v. Carter, 486. Witters v. Bank, 395. Wolcott V. Standley, 441. Wolf V. Bank, 438, 443. Wolf V. Wolf, 187. Women's Catholic Order of For- esters V. Haley, 108, 126. Wood V. Carpenter, 117. Wood V. Copper Mines Co., 166. Wood V. Keyes, 330. Wood V. Mann, 172, 297. Wood V. Truax, 261. Wood V. Trust Co., 448. Wood V. Turbush, 316. Wood V. Wood, 458. Woodard v. Bird, 213. Woodbury v. Marblehead, etc. Co., 459. Woodcock V. Bennet, 45. Wooden v. Morris, 124. Woodruff V. Young, 61. Woodruff's Ex'rs v. Brugh, 263. Woods V. Morrell, 41, 183. Woods V. Roberts, 166. Woodside v. GrafHin, 440. Woodward v. Jackson, 295. Wood worth v. Robb, 460. Woodworth v. Spring, 87. Woolsey v. Sunderland, 38. Wooster v. Woodhull, 331, 337. Worch V. Woodruff, 432. Worley v. Moore, 110. Wormer v. Waterloo, etc. Works, 448. Wormley v. Wormley, 184. Worrall v. Eastwood, 463. Worth V. Piedmont Bank, 396. Wright V. Dame, 31, 442. Wright V. Wright, 408. Wyatt V. Sweet, 211. Wyatt V. Thompson, 2b2. Wych V. Meal, 191. Wyckoff V. Schofield, 471. Wylie V. Coxe, 183. Wynne v. Alford, 246. Yates V. Law, 246. Yates V. Thompson, 209. Yates V. Tisdale, 382. Yates V. Woodruff, 473. York V. Circuit Judge, 337. Youle V. Richards, 475. Young V. Gushing, 327. Young V. Keighly, 344. Young V. McKee, 209. Young V. Miller, 418. Young V. Rutan, 388. Young V. Twigg, 223. Young V. Young, 433. Youngblood v. Sexton, 60. Youngs V. Morrison, 494. Zahn V. McMillin, 327. Zane v. Cawley, 208. EQUITY PLEADING AND PRACTICE. CHAPTER I. THE JURISDICTION OF THE EQUITY COURT. § 1. Legal and equitable remedies. 2. History of equitable jurisdic- tion. 3. The ecclesiastics as chancellors. 4. The conflict between courts of law and equity. 5. A conscience court. 6. What the jurisdiction em- braces. §7, How Equitable jurisdiction • divided. 8. Exclusive jurisdiction. 9. Concurrent jurisdiction. 10. Auxiliary jurisdiction. 11. Equity having obtained juris- diction will retain it and award complete relief. The maxims m equity applica- ble to jurisdiction. 12. § 1. Legal and equitable remedies. — "There is no wrong without a remedy" is a maxim of the law generally accepted, and subject to but few exceptions. The remedy, however, de- pends entirely upon the nature of the wrong or injury to be redressed; it is not every wrong that finds its full, complete and adequate remedy in a court of law; the remedies in the law courts, called legal remedies, furnish redress by judgment for the plaintiff, giving him possession of his property, or damages in money for the injury committed, with the writ of execution to enforce the judgment. Necessarily the rem- edy is narrow and confined to redress for such wrongs and injuries as a money judgment will completely and adequately satisfy. It is the wrongs and injuries that cannot be com- pletely and satisfactorily redressed by a legal remedy of which the court of equity takes jurisdiction ; its jurisdiction is broader ; its remedies more complete, giving redress for the infringe- ment of rights where the law, because of its narrow and con- fined procedure, furnishes an inadequate remedy. § 2. History of equitable jurisdiction. — The equity court has been called the "conscience court," and in its beg.nning 1 2 JtJEISDICTION OF THE EQUITY COCKT. [§ 2. the jurisdiction was no doubt solely exercised by the king in person; "humbly petitioning," the subject who suffered wrong or injury sought the king; stated to him personally his griev- ance and prayed for relief; and it was from the exercise of this duty toward the subjects of his realm that the maxim " the king is the fountain of justice " came into existence; and that other maxim accepted as true and incontrovertible, '•'■rex non potest ]\)eccare " (the king can do no wrong), had its origin. Sitting in his royal court, " aula regis " (the royal hall), or '■'■curia regis'''' (the king's court), the king in person adjudged and settled the controversies of his people; but with the in- crease of population and duties it became impossible for the king to perform this duty, and of a necessity tribunals were constituted oyer which judges were finally deputed to preside, try, and determine the differences of litigants sent to them from the court of the king. In the course of time proceedings for the redress of wrongs were instituted upon the plaint of the subject by using a writ undpr the king's great seal, or, as it was later called, "the great seal," called an original writ, directed to the sheriff of the county where the injury was alleged to have been committed, containing a summary state- ment of the complaint, and requiring the respondent to appear and answer the allegations of the complainant, directing that the court should hear the proofs and administer the appro- priate relief. In every cause there issued a remedial writ, from the "king's chancery," according to the plaint. To attend to the several duties incident to these proceedings it became necessary to delegate to some one authority to assist and act for the king, and very soon upon this person devolved the duty of stating the facts, framing the complaints, issuing the writs in the king's name under the great seal, and sending the cause to the proper judge for hearing. Certain forms of writs were adopted to be issued applicable to certain facts and circumstances, and the place was made known where all suitors might be fur- nished with these writs. This place was called the "■officina justitios" the office or place of justice, or sometimes called the "court of chancery." Out of this court, or office, the writs issued, and to it they were all returned. The officer desig- nated to assist became to be the presiding officer over this tri- § 3.] JURISDICTION OF THE EQUITY COURT. 3 bunal and was called the " chancellor," and finally the " lord chancellor," and the chancery court over which he presided the highest court next to parliament; the chancellor also came to be known as the "keeper of the great seal;" also as the keeper of the " king's conscience." " The office and name of chancellor," says Blackstone^ "(however derived), was cer- tainly known to the courts of the Eoman emperors, where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his con- sistory. And when the modern kingdoms of Europe were es- tablished upon the ruins of the empire, almost every state preserved its chancellor, with different jurisdictions and dig- nities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, let- ters, and such other public instruments of the crown as were authenticated in the most solemn manner; and therefore when seals came in use he had always the custody of the king's great seal. So that the office of chancellor, or lord keeper, is with us at this day, created by the mere delivery of the king's great seal into his custody; whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom, and superior in point of precedency to every temporal lord." § 3. The ecclesiastics as chancellors. — Until about 1592 the office of chancellor was indiscriminately committed to the clergy and lawyers, but by the churchmen claimed to be an ecclesiastical office and the court an ecclesiastical court; that the clergy should be, because of their spiritual office, the keeper of the king's conscience, and that they were peculiarly fi.ted for the duties devolving upon the chancellor. In this year, 1592, Sergeant Puckering Avas made keeper of the great seal, and from that time, with the exception of a short inter- val when the office was held by the dean of Westminster, the court has been presided over by a lawyer.^ 1 3 Black. Comni. 46. ^ 3 Black. Coram. 53. 4 JUEISDICTION OF THE EQUITY OOUKT. [§§ i, 5. § i. The conflict between courts of law and equity.— The common-law court is of greater antiquity than the court of equity, and between these two courts a conflict arose as to the extent of their jurisdiction. There were, no doubt, abuses of the powers of both courts, which as early as 1389 occasioned petitions from the commons that no man should be brought before the chancellor or the king's court for matters remedial at the common law; but no satisfactory answers were received b}' the several and almost constant petitioners until the time of Lord Elsmerein 1616, when a very notable contention arose between the courts of law and equity brought about by Sir Edward Coke, then chief justice of the court of king's bench, as to the power of a court of equity, whether it could grant relief after judgment or against a judgment of the common- law court. This was really the culmination of years of con- test over the conflicting jurisdictions; and although it was not fully settled at this time, there was earnest and determined action upon the troublesome question. Sir Edward Coke was, no doubt because of the stand he took in the discussion, re- moved from his position. Finally, during the incumbency of Lord Bacon, the practice of the court was reduced to a more regular system, and while the settlement of the questions which were the subject of the great contention between the courts cannot be traced to any one of the chancellors, it may be said that from this time on that which was finally accepted and adopted, to wit, that the equity court could not assume jurisdiction in cases remedial in the courts of common law, grew in favor. Mr. Justice Gibson, in Pennoch v. Hart,^ said : " A too severe application of the common-law rules forced the court of chancery into existence in England. The body of the chan- cery law is nothing else than a system of exceptions; of princi- ples applicable to cases falling within the letter, but not within the intention, of particular rules; or if falling within the letter, yet not within the intention. The exercise of equity powers in every government of laws is conclusive proof of a necessity that they be lodged somewhere." § 5. A conscience court.— The court of equity has gener- ally been called, and to some extent no doubt is, a conscience 1 8 Serg. & Eawle (Pa.), 368. § 5. J JURISDICTION OF THE EQUITY COURT. 5 court; the prayers appended to petitions, and bills filed by its suitors, indicate this; they pray for such relief as "in equity and good conscience may seem meet." It has been said that, "in a moral sense, that is called equity which is found 'ex cequo et bono,'' in natural justice, in honesty, and in right." "Equity, then, in its true and genuine meaning," says Black- stone, "is the soul and spirit of all law : positive law is con- strued, and rational law is made, by it. In this, equity is syn- onymous to justice; in that, to the true sense and sound inter- pretation of the rule." ' But it must not be concluded from this that the court of equity' arrives at its judgments and decrees simply by the dictation of the consciences of its chancellors; for if that were true there would be no certainty as to what the final decree in a chancery case would be, for the consciences of men are not the same, and if this were the rule there would be as many different opinions, judgments and decrees as there are different consciences of chancellors who preside over the courts. The equity court is a conscience court, to the extent, at least, that its chief and foremost object is to do equal and exact justice in every case heard in its courts; but that equal and exact justice can only be said to be- attained when the rules and demands of the law governing the rights and liabilities of the parties in the given case have been followed and satisfied; and so it is written into the jurisprudence of equity and has become to be a maxim, that " equity follows the law." Lord Campbell says: " In former times unconscientious chan- cellors, talking perpetually of their conscience, have decided in a very arbitrary manner, and have exposed their jurisdiction to much odium and many sarcasms. But the preference of individual opinion to rules and precedents has long ceased. The doctrine of the court is to be diligently found out and strictly followed, and the chancellor sitting in equity is only to be considered a magistrate, to whose tribunal are assigned certain portions of forensic business to which he is to apply a well- defined system of jurisprudence, being under the control of fixed maxims and prior authorities, as much as the judges of the courts of common law." ^ 1 3 Black. Coram. 429. 2 Campb. Lives of the Lord Chancellors, vol. 3, p. 12, note 4. 6 JUEISDIOTION OF THE EQUITY CODET. [§ 6. §6. What the jurisdiction embraces.— It would perhaps be less difficult to determine what the jurisdiction of equity does not embrace. It may be said to be a general rule that equity will not assume jurisdiction of causes of action for which there always has been a plain, adequate and complete remedy at law; for if there is a plain, adequate and complete remedy at law the parties have the' right to have the controversy set- tled in the legal tribunal by the forms and settled procedures of the law courts, which among other things will allow them a trial by jury. Mr. Justice Blackstone,^ as to the powers of the court of equity, says : " They are established to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach ; to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business of our courts of equity, which, however, are only conversant in mat- ters of property. For the freedom of our constitution will not permit that in criminal cases a power should be lodged in any judge to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals." "Eut the general account," says Judge Story ,^ "of LordEedesdale (which he admits, however, to be imperfect, and in some respects in- accurate), is far more satisfactory, as a definite enumeration. ' The jurisdiction of a court of equity ' (says he), ' when it as- sumes a power of decision, is to be exercised (1) where the principles of law, by which' the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afi'ord a complete remedy, or their modes of proceeding are inadequate to the purpose; (2) where the courts of ordinary jurisdiction are made instruments of injustice; (3) where the principles of law, by which the ordinary courts are guided, give no right, but, upon the principles of universal justice, the inter- ference of the judicial power is necessary to prevent a wrong, 1 1 Black. Comm. 93. 2 1 Story, Eq. Jur., sec. 33. § 6.] JCEISDICTION OF THE EQUITY CODKT. 7 and the positive law is silent. And it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a juris- diction; (i) to remove impediments to the fair decision of a question in other courts; (5) to provide for the safety of prop- erty in dispute, pending a litigation, and to preserve property in danger of being- dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests; (6) to restrain the assertion of doubtful rights in a manner productive of irreparable damage; (Y) to prevent injury to a third person by the doubtful title of others; and (S) to put a bound ^o vexatious and oppressive litigation, and to prevent multiplicity of suits. And further, that courts of equity, without pronouncing any judgment which may affect the rights of parties, extend their jurisdiction; (9) to compel a discovery, or obtain evidence, which may assist the decision of other courts; and (10) to preserve testimony, when in danger of being lost, before the matter to which it relates can be made the subject of judicial investigation.' " Perhaps the most general, if not the most precise, description of a court of equity, in the English and American sense, is that it has jurisdiction in cases of rights recognized and pro- tected by the municipal jurisprudence, where a plain, adequate and complete remedy cannot be had in the courts of common law. The remedy must be plain; for, if it be doubtful and obscure at law, equity will assert a jurisdiction. It must be adequate; for, if at law it falls short of what the party is en- titled to, that founds a jurisdiction in equity. And it must be complete; that is, it must attain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law; it is some- times exclusive of it, and it is sometimes auxiliary to it." The jurisdiction of the equity court has been systematized and is now governed by fixed and settled legal principles which govern the extent and the procedure of its remedial powers; as, for example, equity, as a general rule, will assume jurisdic- 8 JUEISDICTION OF THE EQUITY OOUET. [§§ 7, 8. tion and afford a remedy in cases of fraud, accident and mis- take. While to this general rule there are certain exceptions and limitations, it will sufiBce to illustrate the general doctrine; it will also assume jurisdiction to prevent a multiplicity of law suits when it can settle the whole controversy in one suit; and there are other settled and fixed rules which determine the equity jurisdiction, and so it may be said that a cause will not fall within the equitable jurisdiction merely because there is no plain, adequate and complete remedy at law. It must also appear that it is a case that is included within some of the general principles or acknowledged heads of equitable juris- diction. § 7. Equitable jurisdiction — How divided. — Equitable ju- risdiction may be said to be divided into three distinct classes or heads: First. Exclusive jurisdiction. Second. Concurrent jurisdiction. Third. Auxiliary jurisdiction. Within some one of these classes every case in equity must fall. § 8. Exclusive jurisdiction. — The first division, as indi- cated by its name, relates to that class of equity causes which are cognizable only in a court of equity where both the remedy and the procedure is confined to the equity court exclusively. Mr. Pomeroy has most admirably classified and defined the cases that belong to this jurisdiction as follows:' First, " all civil cases in which the primary right violated or to be declared, maintained or enforced — whether such right be an estate, title or interest in property, or a lien on property, or a thing in action arising out of contract — is purely equitable and not legal, a right, estate, title or interest created by equity and not by law. All cases of this kind fall under the pquitable jurisdiction alone, because of the nature of the pri- mary or substantive right to be redressed, maintained or en- forced, and not because of the nature of the remedies to be granted ; although in most of such instances the remedy is also equitable. It is a proposition of universal application that courts of law never take cognizance of cases in which the 1 1 Pom. Eq. Jur., seos. 137, 138. § 8.] JURISDICTION OF THE EQUITY COUET. 9 priiuary right, estate or interest to be maintained, or tiie vio- lation of which is sought to be redressed, is purely equitable, unless such power has been expressly conferred by statute; and if the statutes have interfered and made the right, or the violation of it, cognizable by courts of law, such right thereby becomes to that extent legal. . . . Secondly, all civil cases in which the remedy to be granted — and, of course, the remedial right — is purely equitable, or one which is recog- nized and administered by courts of equity, and not by courts of law. In the cases of this class, the primary right which is maintained, redressed or enforced is sometimes equitable, -and is sometimes legal; but the jurisdiction depends, not upon the nature of these rights, estates or interests, but wholly upon the nature of the remedies. Cases in which the remedy sought and obtained is one which equity courts alone are able to confer must, upon any consistent system of classi- fication, belong to the exclusive jurisdiction of equity, even though the primary right, estate or interest of the party is one which courts of law recognize, and for the violation of which they give some remedy." These classes of cases may perhaps be better understood by an example: A. desiring to purchase certain real estate employs an agent, B., to purchase it for him. To this agent he furnishes money which the agent uses for the purpose, but instead of having the land deeded to his principal. A., he procures it to be deeded to himself, and places his deed on record. K"ow the lands were paid for with the money of the principal. A., but the deed conveys the legal title to the agent, B. Equity and good conscience dictate that these lands, notwithstanding the fact that the deed was executed to the agent, B., and was duly recorded, belong to the plaintiff, A. Here is a right, an estate, a title, created by equity and not by law. The legal title to the land is the title created by the deed of conveyance executed, delivered and recorded to B., but A., because of the fraud of B., has the equitable title to the land, and if A. would obtain redress by recovering the lands and setting aside the deed of B. for the fraud perpetrated, be can only find his remedy in a court of equity. The court of equity has exclusive jurisdiction in such a case, because, as has been said, the estate, right, title and interest which A. seeics to ^enforce is created by equity — is purely equitable and not legal. 10 JCEISDICTION OF THE EQUITY COUET. [§ 9- To illustrate the second class of cases falling within the ex- clusive jurisdiction, taking the same example: Suppose that B. purchased the lands for A., receiving therefor a land contract executed by C, providing that upon receiving certain pay- ments he, C, will execute his deed of the lands and deliver it to A. A. offers to make the payments provided for in the con- tract, but C. refuses to accept, and refuses to make his deed a& stipulated in the contract. Now, A. may sue him for damages in a court of law. The contract furnishes a legal remedy, but A. does not want damages — he wants the land itself; therefore the only remedy by which he can procure the land is a remedy in equity; he must file a bill for the specific performance of the contract. Here it will be seen that the " primary right which is to be maintained and enforced, or redressed, may be sometimes equitable and sometimes legal, but the remedy to be granted, that is, the remedial right, is purely equitable." To obtain the land itself the law court furnishes no remedy;, the exclusive and only remedy is an equitable remedy, and while there is a legal right which may be enforced, it is not a legal right that will obtain the relief desired. The primary right may be legal as well as equitable, but the remedy is purely equitable. § 9. Concurrent jurisdiction. — The cases embraced in thi& jurisdiction are those where the primary right or interest is not equitable but legal; cases for which the law courts will furnish a remedy, but not an adequate and complete remedy. The foundation of this jurisdiction is that, while there is a remedy at law, there is no adequate remedy; as, for example, in cases- brought for the specific performance of a contract, usually there is a remedy at law, but the legal remedy is not adequate. As where one has purchased lands upon a contract stipulating that upon the performance of certain conditions and the pay- ment of a certain amount of money agreed upon in the con- tract, the vendor will execute to him a good and sufficient conveyance of the property. ISTow, the vendee upon the re- fusal of the vendor to so execute the conveyance, upon the ful- fillment of the contract upon his part according to the terms thereof, or his ofl'er so to do, and tendering the amount due and payable, may support a legal action for damages and re- cover the money paid upon the contract; but the vendee de- § 9-] JURISDICTION OF THE EQUITY COURT. 11 sires a convo^'ance of the land ; the court of law will give him no such remedy, and he can only enforce the execution of the con- tract in a court of equity. So it has been held where insurance policies have been rendered void because of fraud on the part of the insured, the company may successfully defend in a court of law upon an action brought by the insured to recover the amount of the policy; but the insurance company desires to have the policy annulled; it can only obtain this right in a court of equity. In the case of Oasperson v. Casjxrsou^ the supreme court of Xew Jersey say: "The jurisdiction of the courts of law and equity, in matters of account, ... is undoubtedly con- current, and whichever court first obtains jurisdiction should dispose of the whole matter in the litigation." And where the object of the bill is not only to obtain a decree for the payment of an amount of money due to complainant, but to reach a par- ticular fund, and to obtain an order for the payment from that fund upon the grounds that the fund has been equitably assigned to the complainant, it was held that, the remedy at law not being adequate, equit}'- would take jurisdiction.' The equity court will take jurisdiction where to do so a multiplicity of suits at law would be avoided; but the disputed right must in- volve more than two persons, for in such case the law action can settle the controversy; it applies when there are different persons with different and adverse interests, to settle which would necessitate numerous legal cases which the equity court could join in one bill and fully and completely settle in one case.' By concurrent jurisdiction is not meant that the com- plainant can choose either tribunal, as he may desire; if the remedy at law is full, adequate and complete, and, as some of the courts have said, as convenient and not difficult or doubt- ful, he must choose that forum, and the court of equity will 165 N. J. L. 403, 47 Atl. 438; scieland v. Campbell et al., 78 111. Sweeney v. Williams, 36 N. J. Eq. App. 624; County Com'rs v. City of 637; Ellis v. Land, etc. Co., 103 Wis. Frederick, 88 Md. 654, 43 Atl. 318; 409 78 N, W. 583. Steigerwait v. Rife, 9 Pa. Sup. Ct. 863; 2'smith V. Bates Machine Co., 183 Stookwell v. Fitzgerald, 70 Vt. 468, III. 166, 55 N. E. 69; Chapel v. Hull, 41 Atl. 504; Watson v. Watson, 45 eOMich. 167, 26 N. W. 874; Polhemus W. Va. 290. M. Holland Trust Co., 59 N. J. Eq. 93, 45 Atl. 534. 12 JURISDICTION OF THE EQUITY COUET. [§10. not assume jurisdiction of such a cause; equity will only take jurisdiction when the legal remedy that is open to the party is not adequate or complete; where the relief sought and the re- lief that would be adequate cannot be obtained in the law court, but can be in the equity court.' §10. Auxiliary jurisdiction. — This jurisdiction is from time to time invoiced. In suits brought under it no relief is asked ; the sole object of the proceeding is to obtain evidence to be used upon the trial of some action at law; they are gen- ' Wheeler v. Clinton Canal Bank, Har. Ch. (Mich.) 449; McKinney v. •Curtlss, 60 Mich. 611; Edsell v. Briggs, 20 Mich. 439; Gott v. Hoschna, 57 Mich. 413; Kilbourn v. Sunderland, I'M U. S. 505; Watson v. Sutherland, 5 Wall. (U. S.) 74; Boyce v. Grundy, 3 Pet. (U. S.) aiO; Barber v. Barber, 31 How. (U. S.) 591. The supreme court of Michigan in Wallace v. Harris, 33 Mich. 390, in a case where this question was in- volved, say: "The circumstance that some of these questions, if standing by themselves, might be regularly contested and settled in ejectment, is not enough. The whole case, with all its concomitants, together with the nature and incidents of par- tition, in view of the character of the holdings and the remedial bene- fits to which parties are entitled, must have attention; and we are to inquire whether a remedy at law would be appropriate and effectual on the one hand, and whether any obstructions exist to a valid defense at law on the other. If the remedy in equity is seen to be fuller or more appropriate, if better adapted in view of the ingredients of the con- troversy to effectuate justice as be- tween the litigants, and put an end to disputes about the subject of •contention, the power over the case ought not to be questioned upon partial views or theories. It may ■be safely assumed that a court of equity is as competent to deal rightly with causes as a court of common law, and that the interests of parties will be as carefully guarded by a judge sitting m chancery as they would be if the same judge were sitting on the law side. "Where the question is strictly ju- risdictional, and where the proof is specifically suited to the arbitra- ment of a jury, and also in those cases which are susceptible of being fully and justly disposed of in a court of law, and which inveterate usage has assigned to that juris- diction, we may find reason enough in principle and convenience for ad- hering to the established course. . . . The great purpose is to ter- minate the whole controversy and reach justice through means the most appropriate. And ' when the principles of law by which the or- dinary courts are guided give rights, but the powers of those courts are not suflScient to afford a complete remedy, or their modes of proceed- ing are inadequate,' it is in general admitted that a court of equity may act." American Ins. Co. v. Fisk, 1 Paige, 90; Whitlock v. Duffield, 3 Edw. Ch. 366; Mallory v. Vander- heyden, 3 Barb. Ch. 9; Truman v. Lore, 14 Ohio St. 144; Hartshorn v. Day, 19 How. (U. S.)-333; Quick v. Stuyvesant, 2 Paige, 84; Pratt v. Northara, 5 Mason (U. S.), 95. §§ 11, 12.] JUEISDICTION OF THE EQUITY COUKT. 13 erally suits for discovery, but are not the sole or only proceed- ing in chancery causes to obtain discovery, for in any bill in equity, whether brought within the exclusive or concurrent jurisdiction, a complainant may pray for and obtain discovery for the purposes of the particular case. Suits brought as auxiliary actions are simply to aid some other proceeding. A sworn bill, or petition, is filed to obtain an answer thereto under oath, which discovers the facts, and this answer may be used as evidence in the anticipated action. The proceeding is practically obsolete, for the statutes permitting parties to be called as witnesses have rendered it unnecessary. § 11. Equity having obtained jurisdiction will retain it and award complete relief. — It is the object and aim of equity to do full and complete justice between the parties who have invoked and entered its jurisdiction, and so if the court has obtained jurisdiction of the parties and the cause, it will complete the entire controversy, even to the awarding of dam- ages and decreeing the payment of money. Where an equitable action was brought to reform a lease, the court gave its decree for the collection of rent under the lease.^ And where a suit was commenced in equity for an accounting and for the right to redeem, with a general prayer for relief, the court found a decree for a personal judgment upon the ground that having obtained jurisdiction the court may completely settle the con- troversy.^ This rule is often invoked in cases for settling the af- fairs of partnerships. In such cases equity has jurisdiction; but it is held that when it is competent for the court to grant the relief sought, having obtained jurisdiction for that purpose, it will retain it and administer complete relief between the par- ties, even to the extent of settling controversies growing out of the equitable cause for which a court of law would afford adequate relief.' § 12. The maxims in equity applicable to jurisdiction. — The complainant who enters the equity court prays for the 1 Kelly V. Galbraith, 186 III. 593, 58 S. 354; Kilbourn v. Sunderland, 130 N. E. 431. U. S. 514; Un. Cent. Life Ins. Co. v. 2 Olson V. Lamb, 61 Neb. 484, 85 Phillips, 103 Fed. 19; Safe Deposit N. W. 397; Ducktown, etc. Co. v. Trust Co. v. Baker, 90 Md. 744, 46 Barnes (Tenn., 1900), 60 S. W. 593. Atl. 1071; Moon v. Nat. Wall, etc. 3 Williamson v. Monroe, 101 Fed. Co., 66 N. Y. S. 33. 333-329; Reynes v. Dumont, 130 U. 14 JUEISDIOTION OF THE EQUITY CO0ET. [§ 12. relief that equity and good conscience dictates; he must there- fore show by his petition or bill, and sustain the allegations by proof, that he is entitled in good conscience to the equitable consideration he seeks. So it must appear that he has fully and justlj'^ performed his duty in the premises. Therefore it is a maxim of equity, applicable in determining jurisdiction, that " he who comes into equity must come with clean hands," and " he who seeks equity must do equity." In American Ass'n V. Innis'^ the court say: "The maxim, 'One who comes into equity must come with clean hands,' is as old as courts of equity, and is the expression of the elementary and fundamen- tal conception of equity jurisprudence; and, although not the source of any distinctive doctrines, it furnishes a most impor- tant and even universal rule, affecting the entire administra- tion of equity jurisprudence as a system of remedies and re- medial rights. It is based upon conscience and good faith. . . . The rule must be understood to refer to some miscon- duct in regard to the matter in litigation, of which the oppo- site party can in good conscience complain in a court of equity. The ordinary illustration of the maxim is found in cases for specific performance of contracts and the equitable remedy applied thereto. For instance, if a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of the fraudulent party, while the agreement is still executory, either compel its exe- cution or decree its cancellation. For instance, where a debtor has conveyed, or in any way transferred, his property for the purpose of defrauding his creditors, and afterwards seeks to set aside the transfer as against the grantee or assignee, and recover back the property, the door of a court of equity is al- wavs shut against such claimant. ... If a man suino- for I/O O specific performance is shown to have defrauded the defendant in respect to the contract sued on, the maxim would prevent recovery; but not so if it were shown that the plaintiff, in ac- quiring title, has defrauded his own vendor, or cheated some third person. ' Clean hands ' means a clean record with re- spect to the transaction with the defendant, and not with re- spect to any third person." 133 Ky. Law Rep. 1196, 60 S. W. 38a :§ 12.] JUEISDICTION OF THE EQUITY COURT. 15 And in Stowell v. Tuclcer^ the supreme court of Idaho say: "The issues made by the pleadings and the evidence in the record, introduced at the trial to support those issues, show an agreement which was fully executed by one party thereto. . . . The predecessor in interest of the appellants received the full benefit that could accrue to it from the contract, even if said contract had been in writinj):, acknowledged and re- corded, and appellants now seek to evade the obligations of said contract by invoking an equitable remed3^ The appel- lants ask equity, but refuse to do equity. The facts established by the record show that in a proper action the respondents would have been entitled to enforce specific performance of said oral contract. . . . The appellants do not come with clean hands. Asking equity, but refusing to do equity, the judgment in this case, that appellants take nothing by this action, we regard as correct." ■63 Pac. 1033 (Idaho, 1900); Ruppel v. Mo. S. & B. Ass'n, 15S Mo. 613, 59 S. W. 1000. CHAPTER II, PLEADINGS AND PRACTICE IN EQUITY. 13. The pleadings. 14. Practice as distinguished from pleading. 15. Records and orders of the court. § 16. Equity pleading and practice. 17. The pleadings in the ordinary equity case. § 13. The pleadings. — By the pleadings in the equity- court as well as in the law court is meant the papers which are prepared, filed in the court and served upon the solicitor for the opposite party, if there is an appearance in the cause, setting forth in a concise, logical and formal way those facts and statements of the respective parties in the suit by which they notify the court and the opposite party of their respective claims in the cause, and upon which they ask the court for the relief prayed for, or oppose the granting of the relief sought by the opposite party. The pleadings in the cause, therefore, comprise all the papers filed, or filed and served in the case, containing allegations or statements of the parties mentioned from the bill of complaint to the final hearing inclusive. § 14. Practice as distinguished from pleading.— Practice is very closely connected with pleading but may be distin- guished from it. It is the proceedings in the court rather than the basis of the proceedings; the manner of carrying on the cause from its commencement to its final disposition; as, for example, a certain pleading may be properly drawn and sub- ject to no objections as a pleading, but it may be considered bad practice to file it or meet the opposition by the filing and serving it; the pleading may be of itself a good pleading but the procedure improper. To demur to a bill of complaint that may be met by that pleading would be both good pleading and good practice, but to demur to a bill of complaint that is not demurrable would not be good practice. § 15. Becords and orders of the court. — In Davidson v. Murphy^ the supreme court of Connecticut say: "A record, in judicial proceedings, is a precise history of the suit from its- 1 13 Conn. 217; Hahn v. Kelly, 34 Cal. 391; Noble v. Shearer, 6 Ohio, 426; Sutoliflfe V. State, 18 Ohio, 469. §§ 16, 17.] PLEADINGS AND PEACTICE IN EQUITY. 17 commencement to its termination, including the conclusion of law thereon, drawn up by the proper officer, for the purpose of perpetuating the exact state of facts ; or, in the language of Lord Coke, ' records are memorials or remembrances, in rolls of parchment, of the proceedings and acts of a court of justice, which hath power to hold plea according to the course of the common law.'" Orders of the court during the progress of the suit are unquestionably records, and, as generally under- stood, the pleadings as well as the procedure make up the record in the particular case; the notes of the testimony of the witnesses are often spoken of as the record, and when the proofs have been settled, as in case of an appeal, they are without question a part of the record ; and so when the case is enrolled, although that proceeding is simply attaching all the pleadings and papers, orders and decrees together in the order in which they were filed and made, and affixing thereto the certificate of enrollment, all the pleadings, orders and proceed- ings become the record of the case. § 16. Equity pleadings and practice. — In discussing the subject of equity pleading and practice, we are to treat of the manner of instituting and the carrying on to its final conclu- sion a suit in equity; the pleadings that are used both by the complainant and defendant, the proofs that are necessary, the orders that are made, both interlocutory and final. To this end we shall first explain and treat of the pleadings and pro- ceedings in an ordinary suit in equity, noting the proofs that must be made, the manner of obtaining them, the hearing of the cause, the usual orders and the final decree of the court; that is to say, the proceedings in such a case. When this is done we shall notice the pleadings and practice in certain spe- cial cases most usual and ordinary in carrying on the business of the practitioner. § 17. The pleading in the ordinary equity case. — The pleadings usually filed in an ordinary case in equity are, (1) the bill of complaint, (2) the demurrer, plea or answer of the defendant, and (3) the replication of the complainant with the several notices incident to the appearance and pleadings of the parties. Of the pleadings in equity and the procedure in an equity cause from the commencement of suit to a final decree, the succeeding chapters will treat. 2 CHAPTEE III. THE BILL IN EQUITY. § 18. The office and nature of the bill. 19. The parties to a bill in equity are called. 20. An information in equity. 31. How bills in equity are di- vided — Definitions. 22. (1) How original bills are di- vided. 23. How original bills praying re- lief are divided. 24. (2) How original bills not pray- ing relief are divided. 25. How bills not original are di- vided. 36. Certain rules of pleading ap- plicable. 27. Chart of the equity bill. 28. The nine parts of an equity bill. 39. (1) The address. 30. (3) The introduction. 31. (3) The premises or stating part. 83. The plaintiff must state his whole case. 33. Necessary allegations to sup- port an equity case. 34. Form and manner of state- ment. 35. Setting up deeds, mortgages, contracts, records, etc. 36. When must tender of perform- ance be made in the bill. 87. Allegations as to adversary's claim. 88. Allegations of fraud. 39. The bill must not be multifari- ous. 40. Bill may be framed with a double aspect. 41. Scandal and impertinence. 42. (4) The confederating part. 43. (5J The charging part. 44. (6) The jurisdictional clause. 45. (7) The interrogating part. 46. (8) Prayer for relief. 47. (9) Prayer for process. § 18. The office and nature of the bill, — All causes in equity are commenced by filing a bill in equity, or, as it is some- times called, a bill of complaint or an information. The bill in equity is somewhat analogous to the declaration in the law courts; 'it is a coocise, logical_stateraent of the complainant's cause of complaint in w;hich the parties~arB~intr0d«ee'd7~ttre facts upon which the relief sought are stated, and the relief de- sired prayed for.* AlJ^of the facts whicli the complainant ex- pects to prove at the hearing, and upon which he rests his prayer for relief, should be set out in the bill of complaint; by this is not meant that the testimony of the witnesses must be fully narrated in the bill, for superfluous verbiage and useless repetition will not be permitted, but that the substance of the §§ 19, 20.] BILL IN EQUITY. 19 case must be stated and sufficient of the facts set forth to give the court and the opposite party a full understanding as to the facts upon which complainant seeks the relief prayed for,*and to such an extent that when the testimony is offered there will be no surprise to the defendant, and it can be said that the bill of complaint, by its allegations, has fully apjjrised the court and the parties of the facts offered in proof. These facts_ must JDe staTted' in JqgicarfoHiiTjvrtTrprecrsfon, brevity, certaint}'^ and simplicity. Equity pleading has, no doubt, in these daj^s, become a science requiring some degree of tech- nical knowledge to master it in its various branches. The pleader, to successfully draft a bill in equity, must know the legal principles which govern his case and be able to clearly and logically state his cause of action and formulate the proper prayer for relief, and also be able to follow the cause in the chancery court. Judge Story, in his work on Equity Pleading, says: "The statement of the case and prayer of the bill for relief, or otherwise, always were and continue to be to this day the very substance and essence of the bill."- The great importance of a full, logical statement of the case in the bill will be more fully appreciated from the fact that the courts have often held that upon this statement, with a prayer for general relief, a decree should be entered giving to the com- plainant such relief as he is equitably entitled to. • § 19. The parties to a bill in equity are called. — The per- sons who institute the proceedings in equity by filing the bill are called " complainants " or " plaintiffs ; " those against whom the action is brought, "defendants." The complainant in the bill is called "orator;" if a female, "oratrix." If the proceeding is by information, the person upon whose relation the informa- tion is filed is called "relator." § 20. An information in equity. — When a suit in equity is in- stituted on behalf of the state or the government, or those who are under its immediate protection or control — as, for example, idiots or lunatics, — the pleading presenting the matter of com- plaint is called an "information," and is exhibited in the name of the attorney-general or the proper law officer of the state. If the suit immediately concerns the state, the bill is exhibited on the relation of the attorney-general; if not, it may be at the instance of, and under the direction of, a person whose name 20 BILL IN EQUITY. [§§ 21-23. is inserted and called a "relator."' Informations differ from bills in equity only in form, and generally it may be said that the same rules apply. § 21 . How bills in equity are divided — Definition. — Bills in equity are of two general classes : (1) Original bills, and (2) bills not original. If the bill is based upon new matter and is for an original object — that is, does not relate to matter that has already been litigated by the same parties standing in the same interests, — ^it is an original bill. The great bulk of chancery cases are prosecuted by original bill ; if the bill, however, relates to some matter that has already been litigated in the same court by the same parties, and is filed simply as an addition to, or a con- sideration of, the original bill, it is called a " bill not original." ^ § 22. How original bills are divided. — Original bills are di- vided into (1) original bills praying relief, and (2) original bills not praying relief. At first blush this division may seem not to be supported by the facts which the bills themselves dis- cover, for it may be said that every bill in equity prays for re- lief ; but by an examination of the prayers of the bills of the different classes it will be seen that there is a distinction which clearly marks the difference indicated. (1) The bill praying relief includes that class where a full and complete settlement of the rights of the parties is sought upon the merits of the case set forth in the bill and a redress of the wrongs complained of; while (2) bills not praying relief are those which ask the aid of the court against possible future injury to assist by way of discovering facts or proofs to support or defend a suit in another court and are not for relief in the same suit. § 23. How original bills praying relief are divided. — Orig- inal bills praying relief are divided into three classes, according 1" There has never been any rule ^gjory, Eq. PI., sec. 16. "Besides in equity preventing the attorney- original bills, there are other bills in general from acting on relation, so use in courts of equity, which are long as the grievance is one affect- filed when it becomes necessary to ing the public interests, and he re- supply any defects existing in the tains control of the suit." Attorney- form of the original bill, or which General v. Board of Auditors, 73 may have been produced by events Mich. 53; Miller v. Grandy, 13 Mich, subsequent to the filing of it. Bills 540; United States v. Hughes et al., of this description are called 'bills 11 How. (U.S.) 553; Mullan V. United which are not original.'" 1 Barb. States, 118 U. S. 371; United States Oh. Pr. 34. V. Union Pacific R. Co., 98 U. S, 569; Story, Eq. PI., sec. 8. § 24:.] BILL IN EQUITY. 21 to the kind of relief sought. (1) Bills in which the complainant prays for a decree of the court settling certain rights and equi- ties claimed by him in opposition to certain claimed or pre- tended rights or equities of the defendant. These are the most usual bills employed in equity causes. (2) Bills of interpleader, wherein the complainant claims no rights or equities in the subject-matter of the litigation in opposition to the rights of the defendants, but on the contrar}' allege that the defendants, one or the other of them, is entitled to a decree of the court, and prays a decree determining which of the defendants is en- titled to the subject-matter of the litigation, and that the com- plainant, after obeying such decree, may be discharged from all liability on account of the conflicting claims of the parties defendant; as, for example, when the complainant is in posses- sion of certain property to which he does not claim title, and it is demanded of him by two or more persons claiming it adversely, the possessor being entirely willing to deliver it to the rightful owner; but if he delivers it to one of the claim- ants, another who claims to be the owner threatens to bring suit against him for the value of the property, while if he de- livers it to that claimant he is likewise threatened by the other party, such an one may file a bill setting up the facts and pray- ing the decree of the court as to whom the property belongs, and as to whom he shall deliver the same. To this end he may pray that they, the defendants, be interpleaded and settle the controversy. (3) Bills of certiorari are the third class, and at one time used to obtain the removal, or a writ for the removal, of an equity case from an inferior to a superior court to which the writ was returnable. These bills are no longer used, as the modern practice is supplied with a more direct and practical method for accomplishing the removal of causes to higher courts. § 24. (2) How original bills not praying relief are divided.— Original bills not praying relief are of two kinds: (1) Bills to secure evidence; that is, bills to perpetuate the testimony of witnesses, or to examine witnesses de hene esse; and (2) bills of discovery, that is, bills asking for facts within the defend- ant's own knowledge, or asking for records, deeds or writings in his custody or under his control. They are bills that through the answer to them by the defendant it is sought to discover facts that may be used in evidence. These facts are generally discovered, as we shall see, by putting certain interrogatories 22 BILL IN EQUITY. [§§ 25, 26. to the defendant in the bill of complaint to which in his an- swer to the bill he is bound to reply. § 25. How bills not original are divided.— Bills not original are divided into (1) supplemental bills ; that is, bills that are filed to supply some defect or irregularity, or to add to the original bill because of the happening of certain events after the filing of such original bill, which are material to the complainant's case. (2) Or for the purpose of cross-litigation ; as where the defendant needs some affirmative relief in the same litigation. (3) Or to impeach a decree for fraud. Or (4), under certain circumstances, or because of newly-discovered evidence, to suspend a decree. Or (5) to carry a decree into effect, where, because of neglect or some other cause, it becomes impossible to do so without the further order of the court. Or (6), a bill of revivor, which is to revive the original bill when from some cause, as because of the death of the party, the suit would abate. Or (Y), bills of review; that is, bills to review, alter or reverse the decree of the court for errors in law, or for newly-dis- covered evidence which with reasonable diligence could not have been discovered at the time of the hearing of the orig- inal bill. These several bills will be noticed in detail in later chapters as it becomes necessary to discuss them. § 26. Certain rules of pleading applicable. — There are certain rules of pleading which are applicable to equity as well as to common-law pleading; as, for example, it is not necessary to state in the bill facts of which the court is bound to take judicial notice, as matters of law or legal presumption; or to recite public acts; or aver facts of which the court has judicial knowledge; such as certain geographical boundaries, the bound- aries of states, or the division of the state where the court is sit- ting, into counties; or the practice and procedure of the court in which the cause is pending, or any fact of a public nature that is generally and fully understood"; as ports in which tide ebbs and flows; boundaries of judicial districts; of the law and juris- prudence of the several states of the United States.' T3ut the law and jurisprudence of foreign states must be averred and proven. The degree of certainty required in equity pleading is not so strict as in common-law pleading; but, as we have iTown of North Hempstead v. v. Paul, 60 Neb. 7,82 N. W. 98; People Gregory, 65 N. Y. S. 867; Betoher v. v. Curley, 99 Mich. 238; Jackson v. Insurance Co., 78 Minn. 240; Green Kansas City, etc. Co., 157 Mo. 621, 58 §26.] BILL IN EQUITY. said, the allegations must be stated logically and with certainty. And no doubt "there are some cases in which the same de- cisive and categorical certainty is required in a bill in equity as in a declaration at common law. But in most cases general certainty is sufficient in pleadings in equity." ^ TheTitle or claim of the complainant, the injury or griev- ance complained of, must be alleged with such reasonable cer- tainty and accuracy that the defendant may be fully and dis- tinctly informed of the plaintiff's case. It is generally con- ceded that certainty in pleading in courts of equity is required, but certainty to a common intent is sufficient in the bill or answer.- Or, as has been said, "general certainty is suJBScient in pleading in equity." ' S. W. 32; City of Evansville v. Frazer, 24 Ind. A pp. 628, 56 N. E. 729; Bank of Montreal v. Taylor, 86 111. App. 388. In Detroit, etc. R Co. v. Com- mon Council, 125 Mich. 673, 85 N. W. 96, it was held that the court would take judicial knowledge that a street railroad has a large market value, and that it is very much greater in amount than could be obtained for it if it were dismantled and its rails, cars, motors, etc., were sold sepa- rately. In Johnson v. Hutchinson, 81 Mo. App. 299, it was held that the court would take judicial notice of the location of a town in a certain county of the state. Moon v. Mo. Pac, R. Co., 83 Mo. App. 458. In Mc- Coy V. World's Col. Exposition, 186 111. 356, 57 N. E. 1043, it was held that the court would take judicial notice of the Columbian Exposition as a his- torical fact. In Neely v. Henkel, 180 U. S. 109, 45 L. Ed. 448, it was held that the court would take judicial notice that the Island of Cuba was at the date of the act of congress of June 6, 1900, and still is, occupied and under the control of the United States. As to statutes of foreign states, however, it has generally been held that they must be proven by competent evidence, and that the courts will not take judicial knowl- edge of such statutes. Barr v. Closter- man, 1 Ohio C. D. 546; Gill v. Ever- man, 94 Tex. 209, 59 S. W. 531. The rule at law that a party plead- ing a contract need only state it ac- cording to its legal effect is substan- tially the same in equity. Meers v. Stevens, 106 111. 549. Allege with certainty and clearness. Watson v. Murray, 23 N. J. Eq. 257; Search v. Search, 27 N. J. Eq. 137; Molntyre v. The Trustees of Union College, etc., 6 Paige (N. Y.), 239. Matters of in- ference and argument. Hood v. In- man, 4 Johns. Ch. 437. iSt. Louis v. Knapp, 104 U. S. 658, 661, citing Cooper's Eq. PI. 5. ^Paterson, etc. Ey. Co. v. The Mayor, etc., 9 N. J. Eq. 434: Harrison V. Farrington, 40 N. J. Eq. 353. 3 Gogherty v. Bennett, 37 N. J. Eq. 87; Story, Eq. PI., sec. 241. Allega- tions as to title. McClannahan v. Davis, 49 U. S. (8 How.) 170; West v. Reynolds, 35 Fla. 317, 17 So. 740; Walker v. Williams, 30 Miss. 165. In Miller v. Stalker, 158 111. 514, 43 N. E. 79, it was alleged in a general way that the plaintiff obtained title to the property in question by " divers deeds, wills, devises," etc. It was held that this was not sufficient, as it stated conclusions, not facts. Certainty: A contract need only be stated as to its legal effect. Meers V. Stevens, 100 111. 549. 24 BILL IN EQUITY. [§27. § 27. Chart of the equity bill. All suits equity are commenced: Original bills. (1) By bill in equity. Bills not original. (2) By infor- mation. Bills instituted in behalf of the state, or for those whose- rights are the ob- ject of its care i and protection. Bills praying relief. Bills not praying relief. (1) Supplemental biUs. f The ordinary bill in equity praying relief. Bill of interpleader. Bill of certiorari. BUI to dence. secure evi- (3) Cross-bills. (3) Bill to impeach decree, {, Bills of discovery. Bills to supply some irregularity in the orig- inal bill, or some de- ■ feet in the suit; be- cause of events that have occurred after original suit is at Bills filed by defend- ant in original suit to obtain affirmative re- lief in the same mat- ter. For fraud. (4) To suspend a decree, (5) To carry decree into effect. (6) Bill of revivor. ■ Under special cir- cumstances, or Because of facts dis- I covered after the hear- I ing of the cause, and I after the decree is set- >■ tied. When from neglect or other cause it is im- possible without the further order of the ■ coiuli. Bill to revive the original bill when from some cause — as the death of a party — . the suit would abate. H: A bill to review, j (7) Bills of review. \ alter or reverse the > decree of tlie court. ' fl) In the name of the attorney-general when the suit immediately concerns the state; or, (2) If not at the iustance of, and under the direction of a person whose name is in- serted—called a relator. §27.] BILL IN EQUITY. 25 I A bill praying the decree of the court as to rights claimed by the complainant in oppo- ' sition to the claims of defendant. 1 Bill where complainant claims nothmg in opposition to the claims of the several defend- ants, but asks that the adverse claims of the defendants be settled by a decree. \ A bill playing for a writ to remove a cause to a superior court — now obsolete. 1 To perpetuate testimony. ' To examine witnesses de bene esse. j Asking for facts in defendant's own knowledge, ^ or ( For records, deeds, or writing in his custody, or under his control, eta / fl) A bill of review for error in law. Of two kinds: -j (2) For new matter discovered after decree, which with reasonable dili- ' gence could not have been discovered before. 26 BILL m EQUITY. [§§ 28-30. § 28. The nine parts of an equity bill. — Equity bills were formerly composed of nine parts, but the more modern rules of pleading do not require that the bill' should contain all these. They are: (1) The address; (2) The introduction; (3) The premises or stating part; (4) The confederating part; (5) The charging part; (6) The jurisdictional clause; (7) The inter- rogating part; (8) The prayer for relief; and (9) The prayer for process. §29. (1) The address. — The address, or, as it is sometimes called, the direction of the bill, is that part by which it is ad- dressed or directed to the court from which relief is sought. In the United States court the bill is addressed to the judges of the court; as, for example: "To the Plonorable, the Judges of the District [or Circuit] Court of the United States in and for the District of ." In the several state courts the ad- dress is governed by the title of the court in which the bill is filed. In the state of Michigan the usual form is, " To the Cir- cuit Court for the County of , in Chancery." In Illinois, " To the Honorable , Judge of the Circuit Court of the County of -, in the State of Illinois." There is no settled form of address except in those states where it is prescribed by rule or statute, and the only requirement usually is that it should be addressed to the court by its correct title in which the complainant seeks the relief prayed for in his bill. § 30. (2) The introduction.— In this part of the bill the party complainant is introduced; his name and residence, and the character in which he sues, and such description as to give to the court jurisdiction is stated. In the United States court it is required by rule that the defendant as well as the com- plainant shall be named in this part of the bill, giving his abode and citizenship.^ This is particularly necessary because not infrequently upon the fact that the parties are residents of different states depends the jurisdiction of the court; ^ but it 'The twentieth United States Fed. 708. Under rule 20 (United equity rule provides: "Every bill in States court) the bill must give the the introductory part thereof shall residence of the parties. Harvey v. contain the names, places of abode Richmond R. Co., 64 Fed. 19. Parties and citizenship of all the parties should be described by the names plaintiff and defendant by and by which they are known. Kirb- against whom the bill is brought." ham v. Justice, 17 III. 107; Ransome 2 United States v. Pratt, etc. Co., 18 v. Geer, 30 N. J. Eq. 249; McKay v. § 31. J BILL IN EQUITY. 27 has been held that matter which is properly introductory may be stated elsewhere in .the pleading, as in case of the citizen- ship of a corporation. In JluUer v. Dows ' the court say: " A suit may be brought in the federal courts by or against a cor- poration, but in such a case it is regarded as a suit brought b}'' or against the stockholders of the corporation; and, for the purposes of jurisdiction, it is conclusively presumed that all the stockholders are citizens of the state which, by its laws, created the corporation. It is therefore necessary that it be made to appear that the artificial being was brought into ex- istence by the law of some state other than that of which the adverse party is a citizen. Such an averment is usually made in the introduction, or in the stating part of the bill. It is always there made if the bill is formally drafted. But if made anywhere in the pleadings it is sufficient."^ J; 31, (3) The premises or stating part. — In this part of the bill the complainant must set forth by positive averments all the essential facts of his case. It must be here shown dis- tinctly and unambiguously that the complainant is entitled to the relief prayed for. In i'oa? v. Pierce ' it was held that the complainant must state his case with such sufficient clear- ness and certainty that if the facts were admitted by an answer, or proved at the hearing, the court would be able to make a decree upon it. In Wright v. Dame* the court of Massachusetts say: " The rules of pleading require that every material averment that is necessary to entitle the plaintiff to the relief prayed for must be contained in the stating part of the bill; and this is a useful rule for the preservation of form and order in the pleadings. This part of the bill must contain the plaintiff's case, and his title to relief; and every necessary fact must be distinctly and expressly averred, and not in a loose and indeterminate manner, to be explained by inference, or by reference to other parts of the bill." ^ The evidence of McKay, 28 W. Va. 514; Kanawha, 5 Greater latitude must necessarily etc. Bank v. Wilson, 35 W. Va. 36, 13 be allowed as to conciseness in state- S. E. 58. ment where the complainant seeks 194U. S. 444. equitable relief. John D. Park & 2 Lafayette Ins. Co. v. French et Sons Co. v. Nat. etc. Assn, 53 N. Y. al., 18 How. (U. S.) 404. S. 475. But where the bill is so de- 3 50 Mich. 500. fective that it is impossible to deter- * 22 Pick. (Mass.) 55, 59. mine the question that is attempted ■28 BILL IN EQUITY. [§32. the facts of the plaintiff's case should not be stated, but simply averments of the essential facts constituting the case.' This is the most important part of the bill of complaint; it is here the complainant must make out a case that will entitle him to a decree of the court. To this part of the bill the defendant will look to determine whether he will demur, plead, or answer. From these allegations the court will determine whether the prayer for relief can be supported ; for it is a universal rule that the stating part of the bill must be consistent with, and must support the prayer.^ If the complainant fails to state an equitable case, that is, a case that will fall within some of the causes for which the court of equity will assume jurisdic- tion, upon demurrer the bill 'will be dismissed.' § 33. The plaintiff must state his whole case. — It is the aim of the equity court to settle in one suit the whole contro- versy; it therefore follows that the complainant in the stating part of the bill must state fully all of the facts relating to the to be presentedupon demurrer,it will be dismissed. Savage v. Worsham, 104 Fed. 18. It is sufficient, however, if the complaint states the legal facts of the complainant's claim. Riley v. Hodgkins, 57 N. J. Eq. 278, 41 Atl. 1099; Hubbard v. Trust Co., 30 C. C. A. 520. 1 Seals V. Robinson & Co., 75 Ala. 363; Shepard v. Shepard, 6 Conn. 37; Barnard v. Cushman, 35 111. 451; Winebrenner v. Colder et ai., 43 Pa. .St. 244-51; Penn v. Fogler, 182 III. 76, 55 N. E. 192; Stille v. Hess, 113 Mich. 678; McMahon v. Rooney, 93 Mich. 391. Facts must be alleged positively and cannot be inferred from other allegations of fact. Man- ning V. Drake, 1 Mich. 34. If the averments of the bill give full in- formation as to the claim sought to be enforced the allegations are suffi- cient. Evans v. Grand Rapids, etc. Co., 68 Mich. 603. Must be allegations of facts, not recitals of circumstan- tial evidence. The bill should show the theory on which complainant re- lies. Wilson V. Eggleston, 27 Mich. 357. 2 Howell V. Rome, etc. Co., 103 Ga. 174, 39 S. E. 178. 3 Jarvis v. Martin, 45 W. Va. 847, 31 S. E. 957; Hood v. Morgan, 47 W. Va. 817, 85 S.-E. 911. Held, every fact that is necessary to make out the case must be certainly and posi- tively alleged, for the court pro- nounces its decree, basing it upon the allegations stated in the bill as well as upon the evidence at the hearing. And in Brooks v. Lowen- stein et ah, 134 Ala. 158, 37 So. 530, a bill was held bad upon demurrer for inconsistency and repugnancy. In Edwards v. Bay State Gas Co., 91 Fed. 946, held, that if the bill con- tains matter properly pleaded 6on- stituting grounds for equitable relief, it is riot demurrable. As to certainty, see Corbus v. Alaska, etc. Co., 99 Fed. 834; Ter Knile v. Reddick, — N. J. Ch. (1898), 89 Atl. 1063; Baltimore, etc. Co. v. Coats, 85 Md. 531 ; Post v. Beacon, etc. Pump Co., 28 C. C. A. 431, 84 Fed. 371; Highstone v. Franks, 93 Mich. 53. § 33.] BILL IN EQUITY. 29" contention of the parties which is sought to be litigated. The court will not allow the complainant to divide the action by- putting a portion of the case into his bill and thus expose the defendant to further and repeated litigation concerning the same matter. Such a course would be favorable to the per- mitting of a multiplicity of suits rather than avoiding it, as equity seeks to do; it would tend to permit rather than to dis- courage unreasonable litigation; and so it would seem that if it clearly appears upon the face of the bill that the whole con- troversy has not been stated, and is not sought to be settled, the bill on demurrer would be dismissed.' § 33. Necessary allegations to support an equity case. — The complainant in the stating part of the bill must allege sufficient facts to support the case in equity upon which he prays relief. There must be (1) a subject of the litigation, which may be property or property rights, legal or equitable, or some personal right of the complainant which is sought to be pro- tected; the performance of a duty upon the part of the defend- ant; the prohibition of a wrong or threatened injury. "Equi- table remedies," says Poraeroy, "are distinguished by their flexibility, their unlimited variety, their adaptability to cir- cumstances, and the natural rules which govern their use. There is in fact no limit to their variety and application; the court of equity has the power of devising its remedy and shap- ing it so as to fit the changing circumstances of every case and the complex relations of all the parties."^ "Whatever the sub- ject of the litigation may be, it must be described clearly and with certainty in the bill of complaint, and shown to be of such a nature that equity will assume jurisdiction of it. (2) The Mil must show title in the complainant in the subject-matter, or such a claim as gives to the complainant the right to have the injury to the subject-matter or wrong with relation to it cor- rected. The English courts have held that the title must be stated with great clearness, but the American courts are not, so strenuous and have generally required less strictness in allegations of title; and so when complainant alleged that he was the owner and in possession of certain lands, and be- 1 Story, Eq. PI., sec. 287; Purefoy nary v. Kief er, 48 Mich. 105; Vincent V. Purefoy, 1 Vern. 29; Mitf. Eq. PI., v. Moore, 51 Mich. 618. by Jeremy, 183; German-Am. Semi- spom. Eq. Jur., sec. 109. 30 BILL IN EQUITY. [§33. cause of the wrong complained of he was damaged or injured, it was held sufficient.^ The interest must be a real and valu- able one, and not merely a matter of feeling or desire for the correction of a wrong, or for the reparation of an injury; and the bill must allege title in the complainant not only at the time of the wrong complained of, but at the time of the filing of the com- plaint.^ The failure of the bill to show an interest in the com- ' story, Eq. PI., sec. 508a; Manning V. Fifth Parish, etc., 6 Pick. (Mass.) 6; Lamb v, Jeffrey, 47 Mich. 88. In Smith V. Austin, 9 Mich. 465, the court say: "If the complainant has shown no title or interest in the premises, he has shown no right to be protected by the redemption; and a. court of equity will not lend its aid to enforce his right, as a volunteer, to pay off a mortgage on the lands of another, nor subrogate him to the rights of a mortgagee under a mort- gage thus paid by him. But the interest required, as the basis of a right to redeem, need not be the fee subject to tlie mortgage, or the whole of the mortgagor's original equity of redemption (except in some cases of a statute redemption thus limited). Any person who may have acquired any interest in the premises, legal or equitable, by operation of law or otherwise, in privity of title with the mortgagor, may redeem and pro- tect such interest in the land. But it must be an interest in the land, and it must be derived in some way, medi- ate or immediate, from or through, or in the right of, the mortgagor; so as, in effect, to constitute a part of the mortgagor's original equity of i-edemption. Otherwise it cannot be affected by the mortgage and needs no redemption. But whatever may be the title or interest claimed, it must, in some way, appear on the face of the bill, and the nature and e.xtent of it must be set forth; and, if the bill be not brought by the mortgagor, it must be shown how complainant became entitled to it; unless the bill distinctly sets up some special matter of estoppel, and ex- pressly relies upon it as such.'' ' Allegations — Title or interest: Wiggin V. Mayor of New York, 9 Paige (N. Y.), 16. A bill for relief for an injury to the property of plaintiff must show not only that he was owner at the time of the injury, but that he was owner at the time of filing the bill. If it appears from complainant's bill that he is without equitable title the bill should be dismissed, for equity has no jurisdic- tion. Walker v. Williams, 30 Miss. 165. Complainant in bill with prayer for general relief may have such re- lief as the facts stated and proved entitle him, without having averred title to that particular relief. Mc- Millan V. James, 105 III. 194. Allege title in complainant: Not necessary to explicitly allege, if it can be fairly inferred from allegations. Webber v. Gage, 39 N. H. 182. Sufficient allegations: A want of allegations in the bill to sustain the relief sought is as fatal as the lack of proof to show complainant entitled to such relief. Quinn v. McMahan, 40 111. App. 593. A bill should con- tain allegations of facts and not mere recitals of circumstantial evi- dence, and should show the theory on which complainant relies. Wilson v. Eggleston, 37 Mich. 257. Every bill must contain sufficient matter of fact of itself to maintain complain- ant's case. Bracken v. Preston, 1 Pin. (Wis.) 584. § 34.] BILL IN EQUITY. 31 plainant in the subject-matter of the suit renders it demurrable. If complainant sues in some official or other capacity than his own, he must fully state and describe in what capacity he sues, and allege enough in the bill so that the court can clearly un- derstand how the complainant brings the action; and the allega- tions should be so clear and explicit that if there should be no appearance on the part of the defendant the court could, from the statement in the bill, make a proper decree. (8) The hill must Ijy proper and sufficient allegations set out the wrong and injury to the complainant, and with sufficient clearness and enough of the circumstances so that the court and opposite party may be fully apprised of the claim of the complainant. Upon this statement of wrongs or injuries com- mitted the court must rely in determining the complainant's equities, for if there are not sufficient allegations of wrong or injury, by reason of commissions or omissions upon the part of the defendant, or from threatened or impending danger result- ing from defendant's threatened commissions or omissions which violate the rights of complainant, there is nothing for the court of equity to correct and the bill upon demurrer would be dismissed. (4) The defendant's claim of interest and his liability for the wrong or injury must, by sufficient allegations, be shown to exist. For if the bill should fail to show that the defendant claimed an interest or right in the property or subject-matter of the action, or should fail to connect the defendant with the wrong or injury in such a manner as to clearly show that he is responsible for it and its continuance, if the suit is one to restrain future wrong, the bill would be demurrable, for there would be no wrong or injury to complain of, and no claim or assumed right on account of which complainant could ask for relief if these facts did not exist and were not alleged in the bill.^ § 34. Form and manner of statement. — There is no partic- ular form of statement for setting out the facts in the bill ; the complainant comes into the court seeking equitable relief and must comply with all the requirements of equity at every step Allegations — Injury to complain- Jones v. Myers, 7 Blaokf. (Ind.) ant: Williams v. Hagood, 98 U. S. 340. 73; Willingham v. King, 23 Fla. 478; i Emerson v. Township of Walker, 63 Mich. 483. 32 BILL IN EQUITY. [§ 35. of the case. It must appear from the stating part of the bill that he is following that maxim of equity, " he who seeks equity must do equity," and that other maxim, " he who comes into equity must come with clean hands." Every duty that is incumbent upon the complainant to perform, every condition precedent that is lawful and just, must appear by allegations in the bill to have been fully performed, or an offer to so per- form. The facts must be stated positively and upon the com- plainant's own knowledge, if he has such knowledge and can so state, or if it appears from the case made by the bill that he ought to have such knowledge; if he has no knowledge, but has information as to the truth of the facts relied upon, and believes the information to be true and reliable, he may make the allegations upon information and belief; not on informa- tion alone, for it is required that he shall at least indorse the statement as believed by him to be true. Should the bill rest its material allegations upon information and belief, it will be required in some cases, as we shall see, that the complainant support the facts in the bill by the affidavits of persons who know the statements, or some of the very material statements, at least. § 35. Setting up deeds, mortgages^ contracts, records, etc. — The title of the complainant to the subject-matter of the controversy, and the claim of the defendant, is often evi- denced by deeds, mortgages, contracts or records. In such case the complainant in alleging the claim of the parties in the stating part of the bill must set out the deeds or other docu- ments upon which it is based. It is not necessary in alleging title or rights under deeds, mortgages, or instruments which are of record, to set them out in the bill in hmo verba, nor would that be considered good pleading. The complainant should describe the conveyance, or the instrument, or the record thereof, in suflBcient terms to fully identify it, stating clearly the claims of the parties that rest upon it, and make reference to the record of the instrument by liber and page so that it can be readily referred to. Formerly it was the practice to follow these statements of description and reference by a recital somewhat in the nature of making profert of the in- strument — for example, if it were a deed of conveyance, by statement as follows: " To which said deeds of conveyance for § 36.] BILL IN EQurrr. 33 greater certainty your orator prays leave to refer." Or, " which said deeds of conveyance the said complainant will produce and prove as this honorable court may direct." But it is not necessary to use this formal statement. If the paper or instrument is a note or bill of exchange, or a contract or some instrument not of record, it may in some instances, as in case of a note or bill of exchange or a receipt, be the better practice, for the sake of certainty, to set the instrument out m haeo verba. The end to be attained is certainty, and a full, fair, statement of material facts; and the pleader may exercise his own judgment as to how this shall be attained. If the instrument is a contract executed by the parties, or a contract of other parties from which the claim of one or both parties to the suit is derived, it is usually sufficient to state the substance of the same in the bill; or it may be set out in full by making a copy of it and attaching it to the bill as an exhibit and making reference to it as such in the stat- ing part. When the suit is brought to set aside such an in- strument — a contract or a chattel mortgage, for example, — and there is involved the construction of the instrument as well as the fact as to how it was obtained, and it is desired to elicit an answer from the defendant that it is a correct copy, and thus have it before the court as proven, it is well to attach a copy as an exhibit with the proper reference, making it a part of the bill. If the contractor instrument upon which the suit is based is ambiguous, it is proper for the pleader to set out the instrument in full by making a copy thereof and attaching it to the bill as an exhibit, making reference to the same in the stating part of the bill, and also to state in the bill his construction of the contract. As a general rule exhibits attached to a pleading are not to be considered as substantive allegations of fact, unless the pleading is so framed as to show such an intention on the part of the pleader.^ But there is no inflexible rule as to the manner or form of statement of facts in the drafting of the bill. § 36. When must tender of performance be made in the bill. — There are certain equitable cases, which will be dis- cussed in later chapters, where the equitable relief sought rests 1 Union Sewer Pipe Co. v. Olson, 84 Minn. 187, 84 N. W. 756; Einstein v. Schnebly, 89 Fed. 540. 3 3i BILL IN EQUITY. [§ 37. almost entirely upon the performance of certain agreements or covenants of the complainant as conditions precedent to a performance on the part of the defendant. And where from the statement of the facts in the bill it appears that there is something to be done upon the part of the complainant before he can have the decree prayed for, as, for example, the pay- ment of money, or the returning to the defendant of certain propert}^, or some other act, in all such cases it is better that the bill should show that the complainant has, so far as he is able, performed his whole duty in the premises; that he has fully kept his contract and in good faith done all that is incumbent upon him to do before the commencement of the suit; or that he has endeavored to do so and has beeh prevented by the defendant; that he has tendered payment of the money, which has been re- fused ; that he has tendered performance of the agreement or covenant and the defendant would not accept. These allegations should also be followed by a tender of performance in the bill by offering to perform at any time the conditions precedent as the court may direct. Tender of performance in the bill is gener- ally suificient, but as to this the authorities are not entirely agreed.! -pjjg necessity of these averments will more fully appear in the discussion of the more particular cases where it is required. § 37. Allegations as to adversary's claims. — It is only nec- essary to state in the bill the claims or rights of the defend- ant by way of illustrating or making more plain the statement of the case of the complainant, or to show the claim of the de- fendant to the subject-matter of the suit, that the court may see the necessity of making him a party to the action. Such statements are not required to be set forth with that degree of certainty that is necessary in stating other material facts, be- cause the defendant knows fully and particularly all of these facts and need not rely upon the complainant to apprise him of them. The same rule applies in equity pleading in this re- spect as obtains in common-law pleading. The equity bill is 1 Complainant should allege per- 332; De Ford v. Hyde, 10 S. Dak. 386, formance, or offer to perform, or ex- 73 N. W. 365. Allege offer to do case nonperformance, Chadbourne equity. Sheets v. Selden, 74 U. S. V. Stockton, etc. Soc, 88 Cal. 636-639; 416 (7 Wall.); Martin v. Tenison, 26 D'VVolf V. Pratt, 43 III. 198; Palmer Ala. 738; Oliver v. Palmer, 11 Gill & V. Palmer, 114 Mich. 509, 73 N. W. J. (Md.) 426. § 38.] BILL IN EQUITY. 35 used as well for discovery as for stating the complainant's case and obtaining a decree for the relief sought, and while discov- ery may not be the object of the bill, it is important, for by it the complainant is better enabled to make out his case, as the admissions of the defendant in his answer stands as proven at the hearing. The object of the bill may be for discovery. § 38. Allegations of fraud — Fraud cannot be properly al- leged by mere statement of conclusions; for example, to allege in the bill of complaint that the defendant procured the prop- erty, or the subject-matter of the. suit, by fraud and misrepre- sentation is simply stating a conclusion and is not a sufficient allegation, for no proof could be given upon such a statement. There must be a distinct averment of the facts and circum- stances constituting the fraud. That is to say, the facts which support such a conclusion must be alleged and so fully set forth that the court, if there was no appearance, could, from the alle- gations and the proof supporting them, find that a fraud had been committed. The defendant who is charged with fraud is also entitled to have all the facts and circumstances upon which the complainant bases his conclusion set forth in the bill of complaint that he may answer and explain these facts, if he can, and thus defend the charge.^ iToles V. Johnson, 72 III. App. gence.'' Wessell v. Sharp, — Tenn. 182-85. "The bill contains no all e- — (1897), 39 S. W. 543; Story, Eq. PL, gationsof fact which constitute such sec. 251 a. Complainant must state fraud. . . . There is absence of the facts constituting the fraud with any allegatioQ of acts or f acts to sup- sufficient distinctness to enable the port such conclusion." Roth v. Roth, defendant to prepare to meet them. 104 111. 46; East St. Louis, etc. Ry. Fox v. Hale, etc. Mining Co., 120 Cal. Co. V. People, 119 111. 183; Hubbard 261, 58 Pac. 32; Anderson Transfer V. Manhattan Trust Co., 87 Fed. 51. Co. v. Fuller, 73 111. App. 48. In " In a bill to obtain relief from an pleading fraud the act must be spe- alleged, but concealed and recently cifically alleged, Ohio Cultivator discovered fraud, it was always held Co. v. People's Nat. Bank, 23 Tex. that there must be distinct aver- Civ. App. 643, 55 S. W. 765; Weekes ments as to the time of the discov- v. Sunset, etc. Co., 23 Tex. Civ. App. ery of the fraud, how the knowledge 556, 56 S. W. 248. When conclusions was obtained, why it was not ob- are stated and not facts, bad on de- tained earlier, and as to the diligence murrer. Woolsey v. Sunderland, 62 previously used in the investigation N. Y. S. 104; Blood v. Manchester of the fraudulent transaction, so that Electric Lt. Co., 68 N. H. 340, 39 Atl. a court could discover from the 335; Gernt v. Cusack, 106 Tenn. 141, bill itself whether the complainant 59S. W. 385. The specific fraud must had not lost his rights by his negli- be pointed out. Voorhees v. Bone- 36 BILL IN EQUITY. [§ 39. §39, The bill must not be multifarious.— Multifarious- ness is defined by Story to be " the improperly joining in one bill distinct and independent matters, and thereby confound- ing them ; as, for example, the uniting in one bill of several matters perfectly distinct and unconnected against one defend- ant; or the demand of several matters of a distinct and inde- pendent nature against several defendants in the same bill. In the latter case the proceeding would be oppressive, because it would tend to load each defendant with an unnecessary bur- den 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 compelled to unite, in his answer and defensfe, different mat- ters, wholly unconnected with each other; and thus the proofs applicable to each would be apt to be 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." ^ A bill is said to be multifarious) if it contains two or more different and distinct objects; as, for example, if a bill should be filed against several defendants seeking redress for injuries arising out of transactions with them separately and not jointly, at different times and relat- ing to different subjects, such a bill would be held bad on de- murrer for multifariousness. If, however, the object of the bill be single, and for the obtaining relief for one claim, though against several defendants, in such a case the bill would not be subject to this criticism. The joining of two causes of complaint growing out of the same transaction, if all the de- fendants are interested in the same claim of right, and the relief prayed for as to each claim is of the same general char- acter, would not be multifarious. The bill may contain severalV subjects, but it can contain but one object. I Where the defendant, a bank, was in possession of several negotiable promissory notes of a large amount which were the property of an insolvent national bank, and the complainant, who was appointed receiver of the insolvent bank by the comp- steel, 83 U. S. (16 Wall.) 16; Merrill Castle v. Bader, 33 Cal. 76; State v. V. Washburn, 83 Me. 189, 33 Atl. 118 Small V. Boudinot, 9 N. J. Eq. 381 Lafayette C!o. v. Neely, 31 Fed. 738 Williams, 39 Kan. 517, 18 Pac. 737; Martin v. Lutkewitte, 50 Mo. 58. 1 Story, Eq. PI., sec. 371. § 39.] BILL IN EQUITY. 37 troUer of the currency of the United States, filed a bill to ob- tain possession of the notes and settle the rights of the several creditors of the bank who had by executions upon judgments obtained, and by writs of garnishment, undertaken to obtain liens upon the property, the bill was held upon demurrer not to be bad for multifariousness. The court say: "Although several judgment creditors assert separate claims, based upon distinct judgments and proceedings, and they are acting inde- pendently of each other, still the controversy in the present suit is single. It relates to property which the plaintiff seeks to recover possession of. Each of said defendants claims to have a lien upon all and every part of said property. The ob- ject of the suit is to determine whether the plaintiff is entitled to have possession as he claims, and to determine what, if any, interest the defendants, or either of them, have in said prop- erty. It is not a suit to impeach the judgments rendered by the state court against the insolvent bank, nor to interfere with the execution of the process issued upon said judgments; there- fore the defendants are all proper parties and the bill is not multifarious." ' But where several distinct subjects having no connection with each other and requiring different decrees are included in one bill it is multifarious. " If the matter in liti- gation is entire in itself and does not consist of separate things having no connection with one another, it is not necessary that each defendant should have an interest in the suit co-extensive with the claim set up by the bill ; he may have an interest in a part of the matter in litigation instead of the whole." ^ It may 1 Chase v. Cannon et al., 47 Fed. of complaint are dissimilar in their 674. Where the bill attempted to nature, and would require different bring into question and have adjudi- decrees, it would embarrass, rather Gated distinct and discordant inter- than expedite, the administration of ests it was held bad for multifarious- justice, to allow them to be united ness. Taylor v. King, 33 Mich. 43; in the same bill. It is not for the Van Hise v. Van Hise, 61 N. J. Ch. interest of parties in equity, any 37, 47 Atl. 803. more than at law, to mix up different 2IngersoU v. Kirby, Walk. Ch. transactions in the suit, having no {Mich.) 65; Hart v. McKeen, Walk, affinity to each other." Ch. 419. " Different causes of com- In Johnson v. Brown, 3 Humph, plaint, of the same nature, and be- (Tenn.) 338, the court say: "Mr. tween the same parties, may be Justice Story has justly remarked united in one suit, where the same that numerous as are the oases upon relief is asked; but where the causes this subject, no principle can be ex- 38 BILL IN EQUITY. [§40. be said to be a general rule, and perhaps a sufficient test, that if all of the matters and causes of action alleged in the bill of_ complaint can be covered and completely settled by one decree, the bill is not multifarious, for in such a case it would have but one object, which is satisfied by a decree. § 40. Bill may be framed with double aspect. — A bill may be framed with a double aspect and not be held bad for multi- fariousness — that is to say, it may be in the alternative, so that if one ground fails, recovery or relief may be had upon the other; but a bill framed with a double aspect must not set up different and distinct causes which are inconsistent with each other; the bill as a whole must be consistent with itself.' "A tracted from them that can be safely adhered to as a general rule, but the courts must determine each case upon its own peculiar circumstances. While multiplicity of actions on the one hand ought to be avoided, we should be careful, on the other, to guard against that complication and confusion in the investigation of rights, and the application of reme- dies, arising from the attempt to blend in one suit distinct and in- congruous claims and liabilities. The interest and liability of defendants may be separate, and yet they can be joined in the same suit. But, then, their liability must flow from the same fountain ; their interests radiate from some common centre; as if they have distinct portions of complain- ant's distributive share, or have pur- chased severally and each for himself from complainant's testator separate portions of his trust property, and in such like oases." A bill is not multifarious for the reason that several causes of action are stated if they all grow out of the same transaction. Barcus v. Gates, 33 C. O. A. 337, 89 Fed. 783; Bliss v. Parks, 175 Mass. 539, 56 N. E. 566; Farrar v. Powell, 71 Vt. 247, U Atl. 344; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60; Aylesworth v. Crocker, 21 R. I. 436; Eberle v. Heaton, 134 Mich. 205, 82 N. W. 820; United States Min- eral Wool Co. V. Manville, etc. Co., 101 Fed. 14.5, and see cases cited; CI eland v. Casgrain, 92 Mich. 189; Torrent v. Hamilton, 95 Mich. 159; Cornwell Mfg. Co. v. Swift, 89 Mich. 503. 1 Hart V. McKeen, Walk. Ch. (Mich.) 417. A party may frame his bill in the alternative if the title to relief will be the same in either alternative, although the case be presented upon allegations resting on wholly distinct and independent grounds. Brown v. Bedford, etc. Co., 91 Va. 31 ; Bradley V. Converse, Fed. Cas. No. 1,775 (4 Cliff. 366); American Box Match Co. v. Crosman, 57 Fed. 1021. A bill which alleges the ground of action in the alternative is insuffi- cient if by one of the alternatives it appears that the complainant is not entitled to the remedy sought. David V. Shepard, 40 Ala. 587. A bill stating a cause of action in the alternative is insufficient if one of the alternatives shows he has no right to recover, as the bill must be construed most strongly against the pleader. Andrews v. McCoy, 8 Ala. 920, 42 Am. Dec. 669. May file such bill. Avery v. Kellogg, 11 Conn. 568; Foster v. Cook, 8 N. C. 509; Appeal of Wilhelm, 79 Pa. St. 120; MoCon- nell V. McConnell, 11 Vt. 290. § 41. J BILL IN EQUITY. 39 proper case for a bill with a double aspect," says Chancellor Walworth/ "is where the complainant is in doubt whether he is entitled to one kind of relief or another upon the facts of his case as stated in the bill. In such a case he may frame his prayer in the alternative, so that, if the court is against him as to one kind of relief prayed for, he may still be enabled to obtain any other relief to which he is entitled under the other part of the alternative prayer. So also where complainant is entitled to relief of some kind, upon the general facts stated in his bill, if the nature of the relief to which he is entitled de- pends upon the existence or non-existence of a particular fact, or circumstance, which is not within his knowledge, but which is known to the defendant, he may allege his ignorance as to such fact, and call for a discovery thereof." And where a bill was filed praying, among other things, for a certain construc- tion of a deed, and if not so construed by the court that it be decreed to have been executed under a mutual mistake and contrary to the real intention of the parties and that the same may be reframed, the court say: "I do not think the bill is multifarious, for parties have the right to state their case in the alternative. Multifariousness does not arise from the presenta- tion of different views of the same collocation of facts, but it must be two distinct collocations of distinct and different facts, each collocation presenting different rights, and calling for different relief." ^ § 41. Scandal and impertinence. — By scandal is meant any matter that is not becoming the dignity of the court to hear, or which unjustly reflects upon the party.'' By impertinence is meant that which is not pertinent to the object of the bill, needless prolixity and long recitals of immaterial facts. As we have seen, concise, logical statements of facts are required in the stating part of the bill; and while the courts will per- mit a very full and complete recital of the facts and circum- 1 Lloyd V. Brewster, 4 Paige (N. Y.), found due on the statement of ac- 537; Colton v. Ross, 3 Paige (N. Y.), count and praying for a cancellation 398. of the mortgage. Fields v. Helms, 2 Snyder v. Grandstaflf, 96 Va. 473, 70 Ala. 460. 476. A mortgagor may file a bill in sLuW, Eq. PI. 76; Story, Eq. PI., a double aspect averring full pay- sees, 48, 266, 370; Burr v. Burton's ment of the mortgage debt and offer- Adm'rs, 18 Ark. 314. ing to pay any balance that may be 40 BILL IN EQUITY. [§ 41. stances, if they bear upon the qiT^stions in issue, and will perhaps show great leniency in this direction, superfluous alle- gations, redundant and unnecessary statements which are en- tirely irrelevant and immaterial to the issue, and which could not be the subject of proof at the hearing, will not be tolerated, and on motion will be stricken from the proceedings as imper- tinent, with costs. Story, in his Equity Pleading, says: "One of the ordinances of the court of chancery, constituting a fun- damental rule of the court, is aimed against this transgression of the good sense, as well as the good taste, of equity plead- ings. It declares, ' That counsel are to take care that the same (bills, answers and other pleadings) be not stuffed with repetitions of deeds, writings or records, inhcBC verba; but that the effect and substance of so much of them only as is perti- nent and material be set down, and that in brief terms, with- out 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 mat- ter merely criminous or scandalous, under the penalty of good costs to be laid on such counsel.' " ' 1 Story, Eq. PI., seo. 266. In Hood present case is not an instance of V. Inman, 4 John. Ch. (N. Y.) 438, the gross abuse of this rule of pleading; court say: "Impertinence consists but I am glad to see the exception in setting forth what is not neces- taken, and the point brought up, for sary to be set forth, as where the the opportunity it affords of laying pleadings are stuffed with long re- down the rule. I have frequently citals, or with long digressions of perceived the pleadings, and par- matters of fact which are totally ticularly the bill, incumbered with immaterial. An answer or a bill a recital, in hceo verba, of deeds, ought not, ordinarily, to set forth mortgages and other documents, deeds in hceo verba; and if the which, unless checked, will lead to pleader sets forth only so much great oppression of the suitor and to thereof as is material to the point the reproach of the court. When- ^ in question, it is sufficient. They ever a proper case arises I shall cer- are matter of evidence to be shown tainly mark it with animadversion, at large at the hearing. In Alsager and shall endeavor to enforce, by all V. Johnson, 4 Ves. 217, a bill of costs suitable means, precision and brev- was given at large in the schedule ity in pleading. The objection to to the answer, when a reference to unnecessary /oZm may be taken on the bill of costs delivered would the taxation of costs. havefuUy answered the purpose, and "The ancient rules and orders of it was deemed impertinent. The the English court of ohanceryare very § 'il-j BILL IN EQUITY. 41 The United States courts meet this by a rule of court: "Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or any pther instruments in hcBG verba, or any other impertinent matter, or any scandalous matter not relevant to the suit; if it does it may, on exception, be referred to a master by any judge of the court for imperti- nence or scandal, and if so found by him, the matter shall be expunged." ^ In Woods V. MorrelP the court say: "As to impertinent mat- ter, the answer must not go out of the bill to state that which is not material or relevant to the case made out by the bill. Long recitals, digressions, stories, conversations and insinua- tions tending to scandal are of this nature. Facts not material to the decision are impertinent, and if reproachful they are scandalous; and, perhaps, the best test by which to ascertain whether the matter be impertinent is to try whether the sub- ject of the allegation could be put in issue, and would be mat- ter proper to be given in evidence between the parties." And where in a pleading it was alleged that the complainant, over- whelmed with litigation and other matters which required legal services, and alarmed by the danger therefrom to his character and estate, was unwilling in person to face the courts of his state, and felt obliged to secure the services of some one to whom he might intrust the management of his property and affairs, and then went to Europe; and that a certain person had been, and was, his attorney and trusted friend, and hence he was appealed to in the emergency to assume the burden of that management, involving as it did both business and legal services; and that the person so employed was conscious of the explicit and powerfully monitory on effect and substance of so much of this subject. If any pleading should them only as was pertinent and ma- be found of an immoderate length, terial to be set down, and that in Lord Bacon declared that both the brief and effectual terms, etc., and party and the counsel under whose upon any default therein, the party hand it passed should be fined. And and counsel under whose hand it Lord Keeper Coventry, with the ad- passed should pay the charge of the vice of Sir Julius Csesar, the master copy, and be further punished as the of the rolls, in 1635,, ordained that case should merit.'" bills, answers, etc., 'should not be i U. S. Eq. Rule S6. stuffed with the repetitions of deeds ^ 1 Johns. Ch. (N, Y.) 105, or writings in hcec verba, but the 42 BILL IN EQriTY. L§ ^'^' dangers, and actuated by apprehension of them, and by his sympathy lor his friend, he bestowed such incessant labor, and was subjected to such worry and anxiety in the successful per- formance of the duties required, that he broke down in body and mind, it was held that such allegations were both scanda- lous and impertinent.' But it is not every charge in the bill of complaint which is clothed with language that is personal and offensive, and which charges fraud and unfair dealing by the parties against whom it is filed, that is scandalous or impertinent, for such facts are often the foundation of the remedy which the complainant seeks by his bill in equity; and whenever such facts may be the subject of proof, and are pertinent to the object of the suit, they may be properly alleged, and will not be ob- jectionable on the ground that they are scandalous. As in a bill to remove a trustee, it was held not to be scandalous or impertinent "to challenge e\evy act of the trustee as miscon- duct, nor to impute to him corrupt or improper motives in the execution of his trust; nor to allege that his conduct is the vindictive consequence of some act on the part of the cestui que trust, or of some change in his situation. But it is imper- tinent and may be scandalous to state any circumstances as evidence of general malice or personal hostility; because the- fact of malice or hostility, if established, affords no necessary or legal inference that the conduct of the trustee results from such motives, and because such a course tends to render a bill in equity an instrument of inquisition into the private life of every trustee."^ § 42. (4) The confederating part. — The confederating part of the bill is wholly unnecessary. It seems to have had its origin in the idea that it was necessary to insert this clause in order to give the complainant the privilege of inserting the names of necessary parties who might be discovered after the suit was commenced. The usual language employed is as fol- lows: "The defendants combining and confederating together and with divers other persons, as yet to your orator unknown, but whose names when discovered he prays may be inserted 1 Hutchinson v. Van Voorhis, 54 N. J. Eq. 439, 35 Atl. 371. 21 Barb. Ch. Prac. 41; Earl of Portsmouth v. Fellows, 5 Mad. 273> § i3.] BILL IN EQUITY. 43' in the bill and they be made parties defendant thereto, with proper and apt words to charge them in the premises, in order to injure and oppress your orator, do absolutely refuse, etc., etc., or pretend, etc." ' In some of the states this part of the bill is by statute required to be omitted; in others it is de- clared to be surplusage. In the United States court by rule it may be omitted at the option of the pleader.^ §43. (5) The charging part. — The charging part of the bill is not essential. It serves no purpose in the modern chan- cery bill; the case must be fully stated in the stating part, and if it is not, the allegations of the charging part will not save the bill from being demurrable. This part of the bill is said to have originated in the idea that it would save a special replication to the defendant's answer when pleadings of that sort were used. Formerly, when new matter was introduced by the defendant in his plea or answer and the plaintiff desired to put it in issue, he replied to this new matter by a special replication. To avoid this special replication and the unneces- sary delay and length of pleading arising from such a proced- ure, the practice grew up of inserting in the bill of complaint a special allegation setting forth the pretenses of the defendant which comprised a statement of this new matter which might be expected in the plea or answer when the complainant was aware of the defense at the time of filing the bill, and then proceeding to avoid it, or introducing allegations by way of a defense to these particular pretenses of the defendant. The complainant after setting up these pretenses would charge the facts to be otherwise, or as stated by way of avoidance. The formal language of this part is usually as follows: "That the defendant sometimes alleges and pretends (here stating the supposed new matter upon which defendant relies), and at other times he alleges and pretends (here stating other claims or pretenses of the defendant); whereas your orator charges the contrary thereof to be the truth, and that (here stating the special matter which the complainant sets up in answer to the defendant's claim).' 1 Story, Eq, PI., sec. 39. Prao. (4th ed.) 372, the author gives 2 Rule 31, U. 8. Eq. Rules, a concise history of this part of the 3 Lube, Eq. PI., sec. 337; Story, Eq. bill as follows: "It was formerly the PI., sees. 31-33. In 1 Dan. Ch. PI. & practice of pleaders in equity to 44: BILL IN EQUITY. [§§ 4:4:, 45. § 44. (6) The jurisdictional clause,— In this part of the bilL the allegation is made that the complainant has no adequate or complete remedy at law and can only have the relief prayed in a court of equity. The clause^ in part is as follows: "In consideration whereof, and inasmuch as your orator is entirely remediless in the premises according to the strict rules of the common law, and can only have relief in a court of equity where matters of this nature are properly cog- nizable and relievable. To the end, therefore," etc. This clause is wholly unnecessary, as such an allegation is meaningless, and does not in the slightest even tend to confer jurisdiction. The j urisdiction of the court must depend upon the facts al- leged in the stating part of the bill ; if these facts fail to make out a case of which the court of equity will assume jurisdic- tion, no matter how strongly it is charged in the jurisdictional clause, a demurrer to the bill for want of equity will be sus- tained.i The use of this clause is made optional in the United States court by rule,^ while in many of the states it is dis- allowed by statute, or declared unnecessary by rule. § 45. (7) The interrogating part. — In this part of the bill the complainant prays for an answer to the bill from the de- state the plaintiff's case in the bill the charging part of the bill, and its Tery concisely, and then if any mat- introduction into practice, in all ter was introduced into the defend- probability, led to the discontinu- ant's plea or answer which made it ance of special replications, by en- necessary for the plaintiff to put in abling the plaintiff to state his case, issue, on his part, some additional and to bring forward the matter to be 'fact in avoidance of such new mat- alleged in reply to the defense at the ter, such new fact was placed upon same time, and that without making -the record by means of a special any admission, on the part of the replication. In order to avoid the plaintiff, of the truth of the defend- inconvenience, delay and unneces- ant's case. Thus, if a bill were filed on sary length of pleading arising from any equitable ground, by an heir who this course of proceeding, the prac- apprehended his ancestor had made tice grew up, when the plaintiff was a will, he might state his title as aware at the time of filing his bill of heir, and alleging the will by way of any defense which might be made pretense on the part of the defend- to it, and had any matter to allege ants claiming under it, make it a which might avoid the effect of such part of his case without admit- defense, to insert an allegation that ting it." the defendants pretend, or setup i Story, Eq. PI., see. 34; Marshall v. such and such allegations by way of, Rench, 3 Del. Ch. 289. defense, and then to aver the matter '^ U. S. Rule 21 ; Gage v. Kaufman, used to avoid it in the form of 133 U. S. 471. charge. This was commonly called § 46.] BILL IN EQDITY. 45 fendant that he may upon oath full, true, direct and perfect answer make to all and singular the matters alleged, and in this part the complainant may, and often does, waive an an- swer under oath. If the answer under oath is waived hj the complainant, then the answer stands at the hearing as a mere pleading; but if it is required to be made under oath, it would have the force and importance of a deposition as to the facts it contained. In this part of the bill the complainant may put special interrogatories to the defendant as to the matters contained in the stating part of the bill for the purpose of ob- taining and using his answers upon the hearing of the cause. The theory upon which this part of the bill is based is, that by it the complainant can elicit valuable admissions of facts that will be of great assistance upon the hearing; by it he seeks to discover the claims of defendant touching the same matter. But it is difficult to discover any advantage that may be gained bj'^ the use of this part of the bill. Without this clause the defendant is required to make a full and complete answer to every material allegation of the complainant in the stating part of his bill. There is no way by -which he can evade the making of such an answer, and it will and ought to be required to be as particular and complete as though special questions or interrogatories, which are but mere repetitions of the stating part, were inserted in this part of the bill. It should be borne in mind that the interrogatories must be sup- ported b}' the stating part, and it cannot limit or enlarge the facts there contained.^ § 46. (8) Prayer for relief.— Prayers for relief are of two kinds: (1) general, and (2) special. In the United States courts it is provided by rule that " the prayer of the bill shall ask the special relief to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief." ^ And if the prayer for general relief should be omitted, it has been held that it may be added by amendment.' The general prayer for relief is usually as follows : " And that your orator may have such further and such other relief in the premises as the nature of the case shall require, and as to the court shall 1 Fuller V. Knapp, 24 Fed. 100; 2 U. S. Eq. Rule 31. Woodcock V. Bennet, 1 Cow. (N. Y.) ' Adams v. Kehlor Milling Co., 3& 711; Story, Eq. PI., sec. 36. Fed. 213. 4(5 BILL IN EQDIXr. [§ 4:6. seem meet." Or, " that your orator may be further and other- wise relieved in the premises according to equity and good conscience." ' The special relief prayed for depends upon the statement of facts in the bill, for to this the court will look in determining whether the special prayer can be supported, for the complainant cannot obtain relief inconsistent with the case made in the bill. Where the special prayer was in the alter- native, the pleader being in doubt as to whether he was entitled to one kind of relief or another upon the facts as alleged in the bill, it was held that such a prayer would be proper and not inconsistent with the stating part of the bill.^ Where alter- native relief is prayed for it must be clearly stated, and each be of such a nature that they can be supported by the facts in the bill of complaint.' The general rule governing the prayer of the bill is that the complainant may pray for such special relief as the equities set forth in the stating part of the bill will warrant; but if the prayer be of such a nature that it is clearly unsupported by the statement of facts in the bill and there be no general prayer for relief, the bill will be subject to demurrer; the case would stand as though no relief had been asked for, and the statement would stand for naught. Such a condition, however, might be remedied by an amendment, for the court, no doubt for the ends of justice, would allow the complainant to insert a prayer for relief. When, in the special prayer for relief, the complainant asked for several things, to some of which he was entitled and to others not, it was held that on this account the bill was not multifarious, and that the com- plainant on the hearing would be entitled to the specific relief prayed for which is consistent with the case made in the stat- ing part of the bill.* The prayer for general relief is very im- portant in every bill in equity; it is the saving clause of the bill, for when the prayer for special relief is held to be insuf- ficient the court will grant such relief as the complainant is 1 Stoi-y, Eq. PI., sec. 40. v. Insurance Co., 1 Paige Ch. (N. Y.) 2 Florida Southern Ey. Co. v. Hill, 284; Colton v. Ross, 2 Paige Ch. 396. 23 40 Fla, 1, 23 S. Rep. 566. An). Dec. 648; Lloyd v. Brewster, 4 3 Story, Eq. PI., sec. 426; Gaunt v. Paige Ch. 537, 27 Am. Dec. 88. Froelich, 24 111. App. 303; Hubbard * Hammond v. Michigan St. Bank, V. Urton, 67 Fed. 419; Catling v. Walk. Ch. (Mich.) 214. Newell, 12 Ind. 118; Western Ins. Co. § 46.] BILL IN EQUITY. 47 entitled to by the case made in the stating part of the bill be- cause of the prayer for general relief. And where the prayer ■of the bill was " that the defendant stand to, abide by and perform such order and decree as to the court shall seem agreeable to equity and good conscience," it was held that this in substance was a general prayer for relief and would justify the court in giving any relief which was consistent with the allegations of the bill and warranted by the proof.' And where complainant had prayed for a different relief than he was en- titled to by the case made in his bill, it was held that it was for the court to determine from the material allegations and the proofs at the hearing the relief he was entitled to and to make the decree accordingly, thus determining the suit.'^ If an injunction is sought for by the complainant he should specifically pray for a decree of the court enjoining the de- fendants from performing the particular acts complained of or alleged in the bill as having been threatened, following the allegations made in respect to the same in the stating part of the bill. That which is sought to be enjoined should be par- 1 French v. Commercial Bank, 79 111. App. 110; 1 Dan. Ch. PI. & Prac. 377, 2 Madd. 171, where the author says: " Formerly it appears to have been thought sufficient if the bill contained only a prayer for general relief, which Mr. Robbins, an emi- nent counsel, used to say 'was the best prayer next to the Lord's prayer; ' but the practice now is, to pray particular relief, though if the particular relief prayed by the bill cannot be given exactly as prayed, the court will assist the particular prayer under the general prayer." 2Holden v. Holden, 34 III. App. 106-118. Under a general prayer the relief warran ted by the allegations in the bill and the evidence will be granted. Lane v. Un. Nat. Bank, 75 111. App. 399; Brown v. Bank, 177 III. 171, 53 N. E. 861. Under prayer for general relief the complainant is entitled to any remedy applied by the law for the particular injury or wrong complained of. Tliomas v. Farley Mfg. Co.. 76 la. 735. In Web- ster at al. V, Harris et al, 16 Ohio Rep. 490. "The bill, after stating the case and bringing before the court the proper parties, prays for a decree against all the defendants, compel- ling them to release to complainants all their claims and rights at law in the land described, or to execute a conveyance and also a decree to quiet the title of complainants, and that they may have such other relief as pertains to equity. We can dis- cover no difficulty in the way of a proper decree. There is no need of an express prayer to reform the con- tract. ... A prayer for its execu- tion, or for such relief as pertains to equity, is sufficient." Mateer v. Cock- rill, 18 Tex. Civ. App. 391, 45 S. W. 755; Morris v. Holland, 10 Tex. Civ. App. 474; Walker v. Converse, 148 111. 623, 36 N. E. 303; Bergmanu v. Salmon et al., 39 N. Y. S. 968; Mc- Kenzie v. Flannery & Co., 90 Ga. 590. 48 BILL IN EQUITY. [§ 47. ticularly set forth, for the writ of injunction, if obtained, should follow the prayer and will be limited by it, the com- plainant being entitled to no more than he prays for: for ordi- narily the writ of injunction will not be supported by a prayer for general relief, but must be especially prayed for.^ § 47. (9) Prayer for process. — In this part of the bill the complainant prays for the writ of the court which is usually issued to compel the appearance of the defendants and their answer to the complainant's bill. The writ prayed for is the writ of subpoena. Originally, this process was a writ in the court of common law, where it was and still is used to compel the attendance of witnesses to testify in causes there pending. At a very early time in the formative period of the chancery procedure, this writ, changed in its form to meet the desired purpose, was adopted by the chancery court. It in substance commands the defendant to appear at a certain day and an- swer the complainant's bill of complaint under certain pen- alties therein mentioned. The prayer for process must name the defendants to whom the complainant desires the writ to issue, and it will not be sufficient to mention them as defend- ants merely, without naming each person and with sufficient description to identify them as the same persons mentioned in the stating part of the bill. Persons not named in this part of the bill will not be considered as parties defendant; it has, however, been held that a bill is not demurrable which has na prayer for process where the defendants are required to an- swer, and are named both in the caption and the body of the bill.^ If an injunction is desired, a writ of injunction should be prayed for in this part of the bill, naming the persons against whom the writ is to issue in such a way as to identify them as the same persons against whom an injunction is sought. 1 Story, Eq. PI., sec. 41. in Sheridan v. Cameron, 65 Mich. 2Jennes V. Landis, 84 Fed. 73; Orr 680, it was held that the chancery Shoe Co. V. Kimbrough, 99 Ga. 14S. rule requiring the prayer for process In Pardridge v. Brennan, 64 Mich, to identify the parties would not 575, it was held that an omission to make a bill fatally defective for mention defendant in the prayer for want of it if the parties were other- process is open to amendment. And wise identified. CHAPTEE lY. PARTIES TO THE BILL. § 48. The aim of the equity court is to do complete justica 49. Classification of parties. 50. Exceptions to the rule that all interested must be made parties. First. Where the interested parties in the controversy are very numerous. Second. Where the party is absent from the jurisdic- tion. Third. Where certain parties interested are unknown. Fourth. Where a personal represen tative of a deceased person is a necessary party but his authority is dis- puted. 51. Who should be parties com- plainant. 53. Real parties in interest. 53. One for all or a part for many. 54. Infants as complainants 55. Married women as plaintiffs. § 56. Idiots, lunatics, and weak- minded persons. 57. Parties defendant. 58. Some exceptions. 59. Persons partially mcapacitated. 60. Joinder, misjoinder, non-join- der of complainants. (1) Joinder of complainants. (3) Misjoinder of complain- ants. (3) Nonjoinder of complain- ants. 61. Joinder, misjoinder, non-join- der of defendants. (1) Joinder of defendants. (8) Misjoinder of defendants. (8) Non-joinder of defend- ants. 63. Bringing in new parties. 63. Intervention. 64. Some observations as to par- ties — Corporations — Part- nerships — Trustee and ces- tui que (rust — Heirs, execu- tors and administrators. § 48. The aim of the equity court is to do complete justice. — It is a common expression that "courts of equity delight to do justice not by halves," and so it is a rule of equity pleading that all persons interested in the object of the bill should be made parties, either complainants or defend- ants. Every one whose rights are to be adjudicated is entitled to his day in court and a full opportunity to defend or present his case. The equity court will not undertake to settle a legal or equitable controversy and determine the respective rights of persons interested, unless those persons are brought into court and subjected to its jurisdiction. Complete justice, it is said, is the constant aim of the equity court; a settlement of 4 50 PAKTIKS TO THE BILL. [§ 48. the entire case in the one suit, that a multiplicity of suits may be avoided by making a decree that will settle every contro- versy involved in the litigation in accordance with the rights of the parties. And where persons have a common interest in the relief sought by the bill, though they claim under dis- tinct and separate titles and possess independent interests, they may join in a bill in equity and thus prevent a multi- plicity of suits.' And where through the false representations of a third party, made with intention to influence two stock- holders acting in unison, and by reason of which they were induced to part with their property for a consideration far be- low its value, it was held that such stockholders might join as parties complainant in one action to obtain a rescission of the sale for such fraud. The court say: "Ordinarily a separate misrepresentation to one is not a misrepresentation to two; but if the situation is, to the knowledge of the fraudulent actor, such that a separate misrepresentation to one will reach two, and is intended to be to two, and pursuant to the inten- tion becomes so, then the misrepresentation is to two. The deceit was single in act and utterance, but joint in operation and effect. The coinplaint shows that, although these plaint- iffs severally owned their quota of shares, they nevertheless acted in concert respecting them and the interests represented by them, and were by the same fraud of the defendant in- duced to act in concert in selling their stock to him. . . . The wrong of the defendant destroyed their unity of action as owners of the stock, and it is agreeable to equity that the plaintiffs should be extricated together, and under the facts they allege be permitted to act together in rescinding the sale and in reinstating themselves in their former position. The fraud alleged is of that single character and bifold or manifold effect that in order to present its full scope both causes of action should bo united; and also in order to avoid two actions equity should take cognizance of the fraud in one and dispose of it once for all, to the relief of both parties to the action, whose like interests have been in like manner injured by it."' ISTo matter how numerous the persons who have a legal or 1 Lonsdale Co. et al. v. Woonsocket ^ Bradley v. Bradley, 165 N. Y. 183, et al., 21 R. I. 498, 44 Atl. 929, and and cases cited on page 187. cases cited at page 930. §4S.] PARTIES TO THE BILL. 51 beneficial interest in the subject-matter of the controversy, all should be made parties, so that the court may by its decree cover the entire case and all the interests involved in it by one decree. "When all the parties are before the court, the whole case may be seen; but it may not, where the conflictini^ inter- ests are not brought out upon the pleadings by the original parties thereto." ' It is difficult to lay down any settled, fixed rule as to who should be parties; legal and beneficial interest in the object of the suit is no doubt a test, but there may be persons who would seem to have a beneficial interest in the object of the bill growing out of certain relations and yet not be proper parties; as, for example, persons who are entitled merely to a future and uncertain contingent interest; or where the interest is of such a nature that it may be immediately barred by the defendant; or where the interest is a simple contract creditor's interest.^ " The grand principle which un- 1 Story, Eq. PL, sec. 72; West v. Randall, 3 Mason, 190. - " The truth is that the general rule in relation to parties does not seem to be founded on any positive and uniform principle, and there- fore it does not admit of being ex- pounded by the application of any universal theorem as a test. It is a rule founded partly in artificial rea- soning, partly in considerations of convenience, partly in the solicitude of courts of equity to suppress mul- tifarious litigation, and partly in the dictates 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 per- sons materially interested in the suit, or in the subject of the suit, ought to be made parties, or that all per- sons materially interested in the ob- ject of the suit ought to be made parties, we express but a general truth in the application of tlie doc- trine, which is useful and valuable indeed as a practical guide, but is still open to exceptions, and qualifi- cations, and limitations, the nature and extent and application of which are not, and cannot, independently of judicial decision, be always clearly defined. On this account it is of great importance to ascertain what are the admitted exceptions to the general rule and to ascertain wliat are the grounds on which they are founded; for when these exceptions, and the grounds thereof, are fully seen and explained, they will fur- nish strong lights to guide 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 state the remark of a learned chancellor, speaking upon this very subject of parties, as con- taining a salutary admonition and instructive 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 existing state of society, and to apply its ju- risdiction to all new oases which, from the progress daily making in the affairs of men, must continually PARTIES TO THE BILL. [§4-9. derlies the doctrine of equity in relation to parties is that every judicial controversy should, if possible, be ended in one litiga- tion; that the decree pronounced in the single suit should de- termine all rights, interests and claims, should ascertain and define all conflicting relations, and should forever settle all questions pertaining to the subject-matter." ^ § 49. Classification of parties. — The supreme court of the United States has divided parties to suits in equity into three classes: First, formal parties; second, necessary parties; and third, indispensable parties. The court say : " Formal parties are those who have no interest in the controversy between the im- mediate litigants, but have an interest in the subject-matter which may be conveniently settled in the suit, and thereby pre- vent further litigation. They may be parties or not, at the op- tion of the complainant. ' Necessary parties ' are those who have an interest in the controversy, but whose interests are sepa- rable from those of the parties before the court, and will not be directly affected by a decree which does complete and full justice between them. Such persons must be made parties if practicable, in obedience to the general rule which requires all persons to be made parties who are interested in the con- troversy, in order that there may be an end of litigation; but the rule in the federal courts is that if they are beyond the jurisdiction of the court, or if making them parties would oust the jurisdiction of the court, the case may proceed to a final decree between the parties before the court, leaving the rights of the absent parties untouched, and to be determined in any competent forum. The reason for this liberal rule in dis- pensing with necessary parties in the federal courts will be presently stated. 'Indispensable parties' are those who not only have an interest in the subject-matter of the controversy, arise; and not from too strict an ad- Snowden, 68 Md. 118. "By interest, herenoe to forms and rules estab- it is observable, is meant something lished under very different oiroum- more than is comprised in the most stances, to decline to administer ardent wish or partial feeling. It justice and to enforce rights for implies a right in the subject of con- . vs^hich there is no other remedy." troversy which a decree more nearly Story, Eq. PI., sec. 76c; Fitzgibbon v. or remotely may affect." Crocker v. Barry, 78 Va. 75.5; Hartman's Ap- Higgins, 7 Conn. 342. peal, 90 Pa. St. 203; Story, Eq. PI., ^Pomeroy, Rem. and Remedial sec. 301; Postal Tel. Cable Co. v. Rights, sec. 347. § 49. J PARTIES TO THE BILL. 53 but an interest of such a nature that a final decree cannot be made without either affecting their interest, or leaving the controversy in such a condition that its final termination maj?^ be wholly inconsistent with equity and good conscience. " The general rule as to parties in chancery is that persons falling within the definition of ' necessary parties ' must be brought in, for the purpose of putting an end to the whole controversy, or the bill will be dismissed; and this is still the rule in most of the state courts. But in the federal courts'this rule has been relaxed. The relaxation resulted from two causes: First, the limitation imposed upon the jurisdiction of these courts by the citizenship of the parties; and secondlj^, their inability to bring in parties, out of their jurisdiction, by publication. The extent of the relaxation of the general rule in the federal court is expressed in the forty-seventh equity rule. That rule is simply declaratory of the previous decisions of the supreme court on the subject of the rule. The supreme court has said repeatedly that, notwithstanding this rule, a circuit court can make no decree affecting the rights of an absent person, and that all persons whose interests would be directly affected by the decree are indispensable parties." ' This classification has been approved and followed in most of the states, and in very many cases in the United States court. It would seem, however, that it might be reduced to two classes of parties, namely: first, proper parties; and second, indispensable parties. (1) Proper parties may be said to be parties who are not necessary and indispensable to the settlement of the controversy; parties without whom the court might make a satisfactory and complete decree. They are perhaps better defined by a definition of necessary and in- dispensable parties. (2) Indispensable parties, or parties which are necessary and indispensable to the object of the suit, are such parties as must necessarily be brought into the case be- fore a complete and satisfactory decree can be made settling all the interests involved; they are persons having such an in- terest that a final decree cannot be made without either affect- 1 Chadbourne V. Coe, 2 U. S. O. C. Coiron v. Millaudon, 19 How. 113; A. 327, 51 Fed. 479; Shields v. Bar- Williams v. Bankhead, 19 Wall. 563; row, 17 How. (U. S.) 139; Eibon Ken dig v. Dean, 97 U.S. 423; Alex- V. Railway Co., 16 Wall (U. S.) 450; ander v. Horner, 1 McCrary, 634. 54 PAETIKS TO THE BILL. [§49. ing that interest, or leaving the controversy in such a condi- tion that its final termination may be wholly inconsistent with equity and good conscience.^ Or, as stated in Eendig v. Dean,^ parties " whose interest in the subject-matter of the suit, and the relief sought, are so bound up with that of the other parties that their legal presence as parties to the pro- ceeding is an absolute necessity, without which the court can- not proceed. In such cases the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction." Such are indispensable parties; while proper parties, or parties which by the United States court are denominated necessary but not indispensable parties, are parties who appear to be necessary, but without whom, under certain circumstances, the court will proceed, — as, for example, when they are not within the jurisdiction of the court and cannot be obtained; or whose interests are separable from the interest of those par- ties who are deemed indispensable.^ J Shields v. Barrow, 17 How. 139; Russell V. Clark's Ex'rs, 7 Cranoh (U. S.), 98. In California v. Southern Pacific Co., 157 U. S. 229, 249, the court say: "It was held in Mallow v. Hinde, 12 Wheat. 193, 198, that where an equity- cause may be finally decided between the parties litigant without bi-inging others befoi'e the court who would, generally speaking, be necessary par- ties, such parties may be dispensed with in the circuit court if its pro- cess cannot reach them, or if they are citizens of another state; but if the rights of those not before the cohrt are inseparably connected with the claim of the parties litigant, so that a final decision cannot be made between them without affect- ing the rights of the absent parties, the peculiar constitution of the cir- cuit court forms no ground for dis- pensing with such parties." And the court remarked: "We do not put this case upon the ground of juris- diction, but upon a much broader ground, which must equally apply to all courts of equity whatever may be their structure as to jurisdiction. We put it upon the ground that no court can adjudicate directly upon a person's right, without the party being actually or constructively be- fore the court.'' Hawes v. Oakland, 104 U. S. 450: Davis v. Peabody, 170 Mass. 397; Land Co. v. Peck, 112 111. 408; Andrews' American Law, 1106. 2 97 U. S. 423. 'Sioux City, etc. Ry. Co. v. Trust Co., 27 U. S. C. C. A. 73, and see cases cited. Irick v. Black, 17 N. J. Eq, 189; Cassidy v. Shimmin, 122 Mass. 409; Sears v. Hardy, 120 Mass. 524 Davis v. New York, 14 N. Y. 527 Oliphint V. Mansfield Co., 36 Ark. 191; Tucker v. Bean, 65 Me. 352; Wakefield v. Marr, 65 Me. 341 ; Michi- gan State Bank v. Gardner, 3 Gray (Mass.), 305; Watson v. Lyon Brew- ing Co., 61 Mich. 595; Bradley v. Gil- bert, 155 111. 154; Munford v. Sprague, 11 Paige, 438; Day v. Wetherby, 29 Wis. 363. See list of cases 15 Encyl. of Pleading, 612, etc.; Markwell v. Markwell, 157 Mo. 326, 57 S. W. 1078. § 50.] PARTIES TO THE BILL. 55 § 50. Exceptions to the rule that all interested must he made parties. — To the general rule that all persons interested in the object of the suit must be made parties there are excep- tions, when the persons belong to that class who are deemed proper or necessary parties but are not absolutely indispen- sable. If the interest of the parties is such that the court may make a decree without them, or without materially affecting their rights; if the whole controversy can be settled and de- termined; or, if there are sufficient parties before the court to insure a fair trial of the issue in behalf of all, then, under cer- tain circumstances, the court will proceed in the absence of such parties. These exceptions are — First, where theintei'ested 2)arties in the controversy are very numerous. The exception has been stated as follows: "The general rule as to parties in chancery is, that all ought to be made parties who are in- terested in the controversy, in order that there may be an end of litigation. But there are qualifications of this rule arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows: First, where a person will be directly affected by a decree, he is an indispen- sable party, unless the parties are too numerous to be brought before the court, when the case is subject to a special rule."' 1 Williams v. Bankhead, 19 Wall, the court said: "How far such per- (U. S.) 563, 571; Mc Arthur v. Scott, sons should be made parties to the 113 U. S. 340, 389; 1 Barb. Ch. Prac. suit depends largely upon the discre- 39, note. tion of the court, considering on the The United States court meets this one hand the difficulty and expense question by rula Eule 48 (U. S. Eq. of joining them, and on the other Rules) provides. " where the parties the paramount importance of having on either side are very numerous, such a representation of the interests and cannot, without manifest incon- concerned as may enable the ques- venience and oppressive delays in tion at issue to be fairly tried." Cit- the suit, be all brought before it, the ing Stevenson v. Austin, 3 Mete. 474; court in its discretion may dispense Harvey v. Harvey, 4 Beav. 215, and 5 with making all of them parties, and Beav. 134. And in Board of Super- may proceed in the suit, having suf- visors, etc. v. Walbridge et al,, 88 Wis. ficient parties before it to represent 179, where this question was before all the adverse interests of the plaint- the court, the court say with refer- iffs and the defendants in the suit ence to the defendants, that they all properly before it. But, in such cases, acquired rights under the agreement, the decree shall be without preju- "and it seems to us plain that the dice to the rights and claims of all agreement cannot be adjudged void the absent parties." without having all the parties inter- In Smith V. Williams, 116 Mass. 510, ested in it before the court. It is a 56 PARTIES TO THE BILL. [§ 50. lu Newcomb v. Tlorton ' the court say : " It is an elementary rule in chancery pleading that every person who is at all in- terested in the event of a suit, or necessary to the relief, must be made a party in order to enable the court to settle the rights of all and make a complete and final decree upon the merits. This rule was dispensed with where it was inconvenient, diffi- cult or impracticable, on account of the number or situation of the parties, to unite them in one suit." Second exception: Where the party is absent from the jurisdic- tion. If no prejudice to the absent party could result from the decree, the court will proceed without him, but if any injury would result therefrom it will not proceed. In Towle v. Pierce ^ it was held that one outside the jurisdic- tion need not be made a party if a decree can be made without manifest injustice to him. This exception is provided for by rule in the United States equity court.' By reference to the rule, however, it will be noticed that the court at all times un- dertakes to protect the right of the interested absent partj', and in that view it can hardly be said to be an exception to the general rule farther than that the court will proceed with- out them, but without prejudice to them. Third exception: Where certain parties interested are unlcnown. The usual practice in such case is to allege in the bill the fact that there are parties unknown to the complainant, at the same time seeking a discovery of such parties for the purpose of bringing them before the court. In such case the court will general rule that, where a. party is of the jurisdiction of the court or in- directly affected by the decree, he capable otherwise of being made is an indispensable party; and the parties, or because their joinder courts only depart from the rule would oust the jurisdiction of the when the parties are so numerous court as to the parties before the that it would be inconvenient or im- court, the court may in their discre- possibleto comply with it." Story, tion proceed in the cause without Eq. PI., sec. 94; Whitney v. Mayo, 15 making such persons parties; and in 111. 251. such cases the decree shall be with- ' 18 Wis. 566, 568. out prejudice to the rights of the 2 13 Mete. (Mass.) 329. absent parties." Graham v. Elmore, 3U. S. Eq. Rule 47 provides: "In Har. Ch. (Mich.) 265; Mallow \. all cases where it shall appear to the Hinde, 12 Wheat. 193; Union Mills, court that persons who might other- etc. Co. v. Dangberg, 81 Fed. 73; Mc- wise be deemed necessary or proper Arthur v. Scott, 113 U. S. 340; Gregory parties to the suit cannot be made v. Stetson, 133 U. S. 579; Farmers', parties by reason of their being out etc. Bank v. Polk, 1 Del. Ch. 167. § 50.] PARTIES TO THE BILL. 57 allow the case to proceed without the unknown parties, provided the answer to the bill does not disclose their whereabouts, or allege the statement in the bill to be untrue.^ Fourth exception: Where a personal representative of a de- ceaseil person is a necessary party, hut his authority is disputed. In such case the court of equity will not refuse to proceed with the case, nor will it try the question in dispute as to the legal right of the person to represent the deceased party .^ It may be said, however, that these exceptions have their foundation in necessity; that where it is possible for the court to bring the interested parties, or their representatives, into court to defend their interests, it will not proceed without them ; and so it follows that under the present rules of equity plead- ing, and present existing statutes, these parties may be con- structively brought into court. As, for example, if the parties are absent from the jurisdiction, the statutes provide a manner in which they may be constructively served by publication of an order for appearance, so that the exceptions to the rule can hardly be said to be as forceful under the present equity practice as they formerly were. Some of the courts, however, have gone to the extent of holding that an exception to this rule may be considered where it is entirely impracticable to make the persons parties.' ' Story, Eq. PL, sec. 93; Alger v. terially interested in the subject- Anderson, 78 Fed. 739; Stevenson v. matter of the suit, either as com- Austin, 3 Mete. 480. Story, in note plainants or defendants, ought to be 1, sec. 93, citing Fenn v. Craig, 3 made parties, in order that a coni- Younge & Coll. 216, 324, following plete decree may be made which will the holding of Mr. Baron Aiderson, bind the rights of all, and prevent a said, "that where the bill alleged useless multiplication of suits. But that the other proper parties were to tliis rule there are many excep- unknown so that there was an im- tions. It is a rule adopted for the possibility in bringing them before convenientadministration of justice, the court, it would be a gross absurd- and is dispensed with when it be- ity to require them to be made par- comes extremely difficult or incon- ties, or to allow an objection for want venient. . . . But this exception of them." does not extend to those ca.ses where 2 Bank v. Hastings, 1 Doug. (Mich.) the rights of persons not before the 235; Faulkner V. Davis, 18 Grat. (Va.) court are so inseparably connected 651; Harrison v. Wallton, 95 Va. 731; with the claims of the parties liti- Story, Eq. PI., sec. 91. gant that no decree can be made 'InHallett v. Hallett, 3 Paige (N. without materially affecting the Y.), 14, it was held.- "It is a general rights of the former.'' Elmendorf v. rule in equity that all persons ma- Taylor et al., 10 Wheat. 153; Harding 58 PARTIES TO THE BILL. [§51. §51. Who should be parties complainant.— All persons, natural or corporate, whose equitable rights have been vio- lated, and who seek in the court of equit}^ to maintain them, obtain redress for such violation, as well as persons or or bodies corporate whose legal rights have been infringed, and their only adequate remedy is equitable, should be made par- ties complainant; and this rule may be applied when the rem- edy is sought by bill in equity, or by an information where such proceeding is required. The concern of a court of equity V. Handy, 11 Wheat. 103, and other authorities. In Wendell v. Van Rensselaer, 1 Johns. Ch. 349, it was said: "It is a rule of convenience merely, and may be dispensed with when it becomes extremely difficult or inconvenient." In Wilson v. Castro, 31 Cal. 421, 428, the court say with reference to this rule requiring all in interest to be before the court, that "it is one somewhat of convenience and will not be rigidly enforced where its observance will be attended with great inconvenience, and answer no substantially beneficial purpose. It will be modified, or partially dis- pensed with, in the discretion of the court, as justice and the exigencies of the case may require." In Stevenson et al. v. Austin, 3 Mete. (Mass.) 477, 480, where this question was before the court, the court say: "It is said that the cred- itors in this case are numerous, some residing out of the commonwealth, and the residence of others being unknown. We think, therefore, that it is sufficient to make the assignees parties, who alone liave a, right to claim the property (they having the legal title), and who are empowered, and whose duty it is, to represent the interests of and to. act for all the creditors interested in the trust. In Adair v. The New River Co., 11 Ves. 445, it is said by Lord Eldon that it is not necessary to make all the individuals, who are interested, parties: 'The court therefore has re- quired so many, that it can be justly said they will fairly and honestly try the right between themselves, all other persons interested, and the plaintiff.' So in Lloyd v. Loring, & Ves. 779, Lord Eldon says: 'I have seen strong passages, as falling fi'om Lord Hardwicke, that where a great many individuals are jointly inter- ested, the court will let a few repre. sent the whole.' So in Vernon v. Blackerby, 2 Atk. 145, Lord Hard- wicke refers with approbation to a case decided in 1720, where several persons were interested, who had given a general power and authority to some few only, and therefore, to avoid inconvenience from making numerous parties, the court re- strained them to those particular persons who were intrusted withtl.e general power. It is laid down in Mitf. PI. (3ded.) 148. that 'trustees of real estate for the payment of debts or legacies may sustain a suit, either as plaintiffs or defendants, without bringing before the court the creditors or legatees for whon] they are trustees; and the rights of the creditors or legatees will be bound by the decision of the court against the trustees.'" Hale et al. V. Hale etal., 146 111. 227; Smith et al. V. Roten et al., 44 111. 506; Brown V. Brown, 86 Tenn. 278, 323. §51.J PARTIES TO THE BILL. i>& is not so much that certain persons shall be made complainants and certain others shall be impleaded as defendants, as that the whole of the controversy, with all of its interests, shall be before the court and subjected to its jurisdiction so as to be bound by its decree. No doubt in every suit in equity certain persons whose rights have been invaded, and who seek relief, are naturally and sometimes necessarily complainants, and the court in order to decree full and complete redress will insist that they be impleaded as complainants rather than defend- ants; but this is a matter which the court can regulate at the hearing, or by interlocutory order upon petition, if their inter- ests are so identical with the interests of the complainant that the proper relief cannot be given unless they are considered as parties plaintiff.^ The court has similar powers if persons are made complainants who should, because of their relations to the case, have been defendants.^ And so where one has the iPomeroy.Rem.&Reraedial Rights, see. 249. "The plaintiff who insti- tutes an equitable action must bring before the court all those persons who have such relations to the sub- ject-matter of the controversy that, in order to prevent further litigation by them, they must be included in and bound by the present decree; in other words, all those persons who are so related to the controversy and its subject-matter, that, unless thus concluded by the decree, they might set up some future claim, and com- mence some future litigation grow- ing out of or connected with the same subject-matter, against the de- fendant who is prosecuted in the present suit, and from whom the re- lief therein is actually obtained. The principle as thus expressed assumes, what is always true in practice, that in every equitable action there is some person, or group of persons, like aflrmor joint tenants, who primarily institutes the proceeding, and de- mands the relief for his own benefit; and him or them we may designate ' the plaintiff ; ' and there is also some person or group of persons against whom all the real demands are made, and from whom the substantial rem- edy sought by the action is asked, — and him we denominate 'the defend- ant' In addition to these two con- testants there are other individuals described in the foregoing proposi- tion, who must also be brought before the court and made parties to the con- troversy either as co-plaintiffs or as co-defendants. Equity is satisfied in most instances by making them co- defendants, and they are generally so treated in actual practice, unless their interests are so identical with those of the plaintiff that they must participate in the substantial relief awarded by the decree.'' ^ In Lalance, etc. Co. v. Haberman Mfg. Co., 93 Fed. 197, where one was made complainant whose intere.st lay with the defendants, the court at an early stage of the case refvising to order the party to become a de- fendant, it was held that the matter might be left until the final hearing, when the position of the parties could be arranged and relief given as their respective rights required, but that if the co-complainant, whose interest '60 PARTIES TO thj: bill.* l§ ^"• same right and remedy as the complainant and touching the same subject-matter, but refuses to join as complainant, he may be impleaded as a defendant, and in such case would be bound by the decree obtained ; ' but if one is so impleaded as defend- ant, the complainant should set forth in the bill of complaint by proper allegations the reason for so impleading him; and if the bill does not contain such allegations it has been held sub- ject to a demurrer, but the court may, as it is a defect of form rather than substance, allow the complainant to amend by making the party a co-complainant.^ In Sadler v. Taylor ' the court say : " At law persons jointly interested in the object of the suit must stand on the same side of the case upon the record; but in equity, while it is proper so to arrange the parties, it is generally held to be sufficient if all persons interested in the subject-matter of the cause be made parties thereto, either as plaintiffs or defendants. In equity all parties to the suit are, or maj' be, actors therein, without re- gard to the formal positions on the record, and ordinarily it is a matter of little consequence whether a party appears as a complainant or defendant, for the court can make such decree as the exigencies of the case may require, decreeing for or against one or more of the several plaintiffs and for or against •one or more of the several defendants. ' In equity it is suffi- cient that all the parties in interest are before the court as plaintiffs or as defendants; and they need not, as at law, in such case, be on opposite sides of the record.'"* § 52. Real parties in interest. — It is a general rule in equity pleading that the parties to the bill shall be the real parties in interest in the object of the suit. This applies in de- termining who shall be complainants; a person cannot file a bill of complaint who has no actual interest in the controversy ; -was with the defendants, should only decree as betvreen parties t>j the undertake to delay, harass or impede suit, but in equity it is not essential, the orderly progress of the cause, the as at law, that the parties litigant complainants might renew a motion should all be on opposite sides of the to make such party a defendant. case. Piatt v. Oliver, 3 McLean, 27. 1 Waldo V. Waldo, 53 Mich. 91. The position of the parties on the ^ Morse v. Hovey, 9 Paige, 197. record as plaintiffs or defendants is 349 W. Va. 104, 38 S. B. 583; Mc- immaterial — allareactors. Fleming Arthur v. Scott, 113 U. S. 840, 391. v. Holt, 13 W. Va. 143; Tavenner v. 4 1 Story, Eq. Jur. 630. The court can Barrett, 31 W. Va. 656. § 53.] PARTIES TO THE BILL. 61 as, for example, it has been held that an assignor cannot file a bill in the interest of the assignee. "It is a well-recognized rule that in equity the party having the beneficial interest in the subject-matter of the suit must sue in his own name for any invasion of his rights in respect thereto, although the legal title may be in another. It is also well settled that no one, in the absence of some statute authorizing it, can maintain a suit in chancery with respect to real estate to which he has neither the legal nor equitable title." ^ In Jr'enn v. Hearon ^ it was held that the assignor of a debt held merely a barren legal title, and that the beneficial interest was in the assignee, who must be made a party to the suit. " Equity deals with real parties in interest, and if they are not before the court no proper decree can be made." And so it is held that an agent cannot bring his suit on an agreement made o o o by him for and on behalf of his principal and alleged so to be at the execution of it, for he is not the real party in interest. And so the stockholders of a corporation, although they are interested parties by reason of being the owners of the stock, are not proper parties complainant, but the bill should be tiled by the corporation. The president of a corporation cannot bring a suit in his own name on an agreement of the corpora- tion signed by him as president and entered into on behalf of the corporation, for it is not the contract of the president, but of the corporation. And where the name of a trustee is used, the cestui que trust must be made complainant with him.' § 53. One for all or a part for niany. — We have already discussed the exception which allows the court of equity to proceed where the parties in interest are numerous and not all before the court, but sufficient of the number represented to insure to the parties in interest a fair and complete hearing of the cause.'' Akin to this exception, or rule, is the rule that ' Smith V. Brittenham, 109 111. 540, court the suit is properly bought in 549, citing Bowles v. MoAllen, 16 111. the names of the real parties in in- 30. terest; as the assignee of a chose in 294 Va. 773; Kane v. Mann, 2 Va. action is not permitted to file a bill Law Reg. 443; Castleman v. Berry in the name of a mere nominal party." et al., 86 Va. 604; Campbell v. Ship- 3 Nichols v. "Williams, 23 N. J. Eq. man, 87 Va. 635; Field v. Maghee, 5 63. Paige (N. Y.), 539; Rogers v. Traders' ■* Ante, § 49, subd. 1. Mfg. Co., 6 Paige, 533, 598. "In this •62 PARTIES TO THE BILL. [§53. permits one of several interested parties, or a part of a large -class who stand in the same relation and whose interests are identical, to bring a suit in equity for themselves and others not made parties to the bill. It is a well settled rule that one of a class, or a few of many persons having one common right or interest, the operation or protection of which will be for the common benefit of all and can in nowise injure any of the parties, may institute a suit in equity for the common interest without making all persons, alike interested with them, parties to the suit.' But in such cases it must clearly appear that a full and complete decree can be made as between the parties •before the court, and that without substantial injury to third persons. The interests of the parties must be common and not adverse or distinct, and if they are not, then this exception to the general rule that all must be made parties cannot be in- voked; for every distinct or adverse interest in a controversy must be represented by the parties claiming such interests.- 1 In Hale et al. v. Hale et al., 146 111. 227, 257, the court say: 'Afamil- iar illustration may be found in cases where the parties are so numerous that it is inconvenient or impossible to bring them all before the court, and it appears that they all stand in the same situation and have one common right or one common in- terest, the operation and protection of which will be for the common benefit of all, and cannot be to the injury of any. Under such circum- stances the bill is permitted to be filed by a few on behalf of them- selves and all others, or against a few, and yet bind the rights and in- terests of all others." Smith v. Will- iams, 116 Mass. 510; Hills v. Putnam et af., loi Mass. 133. In Libby v. Norris, 143 Mass. 246, 248, the court say: "The bill is brought by the plaintiff on behalf of himself and numerous other creditors to enforce a trust. The interest of all the creditors in the question to be tried is the same. It is well settled that such a bill may properly be brought. or at least that it is within the dis- cretion of the court to entertain it." Sears v. Hardy, 130 Mass. 524; Bir- mingham v. Gallagher, 113 Mass. 190; Bryant v. Russell, 23 Pick. (Mass.) 508; Story,- Eq. PI,, sec. 103; Stevenson et al. \. Austin, 3 Mete. 474; Stimson v. Lewis, 36 Vt. 91, 94. "The practice is common in our courts, when the persons in interest are numerous, to allow parties plaint- iffs to bring a bill in behalf of them- selves and others interested without making such others parties, there being a sufficient number before tlie court to represent the rights of all. The rule seems to be the .«ame, sub- stantially, in regard to the defend- ants." Daniell, Ch. PI. & Prac. 320. The same rule applies to cases where there are many persons defendants belonging to voluntary associations, against whom the suit is brought, as to cases where the bill is brought by some proprietors as plaintiffs in be- half of all. 2 Hudson et al. v. Eisenmayeretal., 79 Tex. 401 ; Cunningham v. Pell, 5 § 54.] PARTIES TO THE BILL. 03 But where it is sought to take advantage of this exception to the general rule, the facts relied upon by the complainant for thus bringing the action must be clearly stated in the bill of complaint with proper allegations. § 51. Infants as complainants. — Infants belong to that class that are partially incapacitated to bring suits in their own name. "When it is necessary to seek redress on behalf of an infant in a court of equity, the bill should be filed and the suit conducted in the name of and by his " next friend," as the infant is not permitted to prosecute the case in his own name, for the reason that he cannot become liable for costs; nor is he considered to possess sufficient discretion to prosecute his cause; and if a bill should be filed without appointing a next friend, the court, on its own motion, would appoint one, for the court of equity is considered to hav.e an especial care of this class of persons. It is said that infants are the wards of tlie chancery court.' The person appointed as " next friend " is usually the nearest relative of the infant, if such person is suit- able and does not possess adverse interests, for, because of his relation to the infant, he natui'ullj' desires to protect his inter- ests and redress his wrongs; for this reason such a person is called his "next friend," often referred to Ksprochein ami. If for any reason such near relative does not or cannot so act be- cause of adverse interests, or for any reason refuses or neglects so to do, the court may appoint some other person. "Whoever acts in such capacity is styled in the bill the " next friend " of the infant. If the infant has a guardian, he may sue hy his guardian or by his " next friend," but must always defend, as we shall see, t)y guardian. The guardian who thus appears is called a guardian ad litem. This is regulated by rule in the United States courts.^ The "next friend" is held responsible by the court for the com- Paige (N. Y.), 607; Champlin et al. v. but must be established by proof. Champliii et al., 4 Edw. Ch. (N. Y.) Claxton v. Claxton, o6 Mich. 557. 228. 2u. a Eq. Rule 87. -'Guardians iWestbrooke v. Comstock, Walk, od Zzton to defend a suit may be ap- Ch. Rep. (Mich.) 314; Sheahan v. pointed by the court, or by any Judge of Wayne Circuit, 42 Mich. 69. judge thereof, for infants or other Where the interests of the infant persons who are under guardianship, are involved, nothing can be estab- or otherwise incapable to sue for lished by admissions or stipulations themselves. All infants and other 64: PARTIES TO THE BILL. [§55. mencement and conduct of the case, and if it is improperly in- stituted, or wantonl}' and wrongfully conducted, or the inter- ests of the infant neglected, he will be liable for the costs and will also be liable to the censure of the court.' § 55. Married women as pliiintiffs. — Originally, a married woman could not sue in her own name but must join with her husband, for the reason that she was deemed to be under his protection and that a suit respecting her rights or interest should be with his assent and co-operation; but if there were reasons why she should not so join, the court would allow her to bring the action in her own name; as, for example, in case the husband had deserted her, or was legally dead ; or where the controversy was with reference to her own separate prop- erty; or where she was seeking relief against her husband. When the suit concerned her own separate property she was obliged to institute the suit by her "next friend; " it was her privilege, however, to choose the person who should so act.^ In most of the states of the Union, however, the married woman's status with reference to her separate property is by persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court may direct for the protection of infants and other persons.'' 1 Story, Eq. P)., sees. 57, 59; 1 Black- stone, 463, 464. "An infant cannot be sued but under the protection, and joining the name, of his guardian ; for he is to defend him against all attacks as well by law as otherwise; but he may sue either by his guardian, or prochein ami, his next friend who is not his guardian. This prochein ami may be any person who will undertake the infant's cause, and it frequently happens that an infant, by Ms prochein ami, institutes a suit in equity against a fraudulent guard- ian." In Brad well v. Weeks, 1 Johns. Ch. 325, the court say: "The plaint- iffs, being infants, cannot act by solicitor in this instance more than in the other proceedings in the suit. The suit was commenced and con- ducted for them by their guardian and next friend, and no reason ap- pears why the guardian is dropped in this application. It is against the course and order of the court, and not conducive to the security of the rights of the parties. The infants should act under the advice and dis- cretion of their guardian or next friend, and the opposite party has, in such case, a responsible person for costs." -Bein v. Heath, 6 How. (U. S.) 228, 240. " Where the wife complains of the husband and asks relief against him she must use the name of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he wouldseem to be the most suitable person to- unite with her in the suit. This is a matter of practice within the discre- tion of the court." Story, Eq. Pl.^ sec. 61. § 56.] PARTIES TO THE BILL. 65 statute the same as though she were sole, and she is permittod to institute suits and prosecute them for protection and relief concerning such property, and in such case she is not obliged to prosecute by "next friend," but may proceed in her own individual name.' The court of chancery for many purposes treats the husband and wife as distinct persons having dis- tinct and separate interests; and so where a husband abandoned his family and left the country to avoid arrest for a confessed crime, the court held that the wife, for the purpose of suing and being sued, would be regarded as 2t. feme sole? This, no doubt, would be the holding in most of the states of the Union, the tendency being to give to the married woman greater privileges as a party to litigation. § 56. Idiots, lunatics and weak-minded persons. — For- merly idiots and lunatics were not permitted to sue in the courts, but this is no longer the rule. At the present time a lunatic, an idiot, or insane person is entitled to have his rights adjudi- cated in the courts the same as any other person, differing only in the manner of procedure. In England the care and custody of the estates of these unfortunates belonged to the crown, and by the government was committed to the committee having special care of such persons and their estates, and suits in their behalf were instituted and conducted by such committee. In many of the states of the United States the same proceeding is had, but usually, in this country, suits for idiots, lunatics and weak-minded persons are commenced in their name by their next friend ; but in some cases suits are commenced and man- 1 In New York she was held to sec. 1368; Arundel v. Phipps, 10 Ves. have power to sue in equity as if she Jr. 144, 149; Livingston v. Living- were sole. In Markham v. Markham, ston, 3 Johns. Ch. 537. The court 4 Mich. 305, the suit was com- further held that the act securing menced against the husband; the to a married woman all her real court say: "The bill shows a clear and personal estate to the same equitable right in the complainant extent as though she were unmar- to recover the money in question for ried, conferred upon her the privi- her separate use. A court of chan- lege of bringing suits in her own eery, for many purposes, treats the name. Child v. Emerson, 103 Mich, husband and wife as distinct per- 38; Berger v. Jacobs, 31 Mich. 315; sons, capable (in a limited sensel of Leonard v. Pope, 37 Mich. 145. contracting with each other, and jf ^ganborn v. Saaborn, 104 Mich, having separate estates, debts and 180. interests." Citing 3 Story, Eq. Jur., 5 66 PAKTIES TO THE BILL. [§57. aged by guardians, who have been appointed to take charge of their affairs generally. It is usually necessary that the person claimed to be an idiot, lunatic or weak-minded person should be so adjudged by a court of competent jurisdiction ; and where a party has not been so adjudged, and no guardian or committee appointed for him, the suit may be brought in the name of the alleged incompetent person. "When, however, one of this unfortunate class is known to be incompetent, a suit may be brought in his name b}' his next friend duly ap- pointed; and when a case is brought by committee or guardian who is known to be adverse in interest, the court will appoint some other person as guardian ad litem, or as next friend, and in some instances the attorney-general of the state has repre- sented the party.' § 57. Parties defendant. — All persons, natural or artificial, having a legal entity, unless exempt by law from such pro- iln Plympton . V. Hall et al., 55 Minn. 32, the court say: "Persons incompetent to protect themselves, from age or weakness of mind, are entitled to come under the protection of the court, and proceedings will be instituted under its direction, as was done in this case." Citing Malin v. Malin, 2 Johns. Ch. 338; Denny v. Denny, S Allen, 313. A lunatic is not supposed to be able, without the assistance of others, to know what steps may be neces- sary to protect his estate. Suits in his behalf are usually instituted in his name, but as he is a person in- capable in law of taking any steps on his own account, he sues by the com- mittee of his estate, if any, or if none, by his next friend, who is re- sponsible for the conduct of the suit. 1 Daniell, Ch. Pr., sec. 83; Story, Eq. PI., sec. 66. In Beall v. Smith, L. R. 9 Ch. App. 91, the general rule in chancery is thus stated: Where there is a person of unsound mind, and there- fore incapable of invoking the pro- tection of the court, that protection may be invoked, in proper cases, and to the extent proper in his behalf, by any person as his next friend. But every person so constituting himself, ofiiciousl}', the guardian of a person of unsound mind, does so at his own risk, and he must be pre- pared to vindicate the propriety of the proceedings, if they are called in question. Nelson v. Buncombe, 9 Beav. 331; Light v. Light, 25 Beav. 218; Whetstone v. Whetstone, 75 Ala. 495. The remark of the trial judge in Halfhide %. Robinson, L. R. 9 Ch. App. 373, that a bill cannot be so filed by a next friend, is not sanc- tioned by other or later oases. In Jones V. Lloyd, L. R. 18 Eq. 275, it is said that evei'ybody knows it takes some time to make a lunatic; by in- quisition, and his family sometimes hesitate about making hinT,such. Is it to be tolerated that any one may injure him or his property without there being any person to restrain such.in jury ? Rook v. Slade, 7 Dowl. 00 § 57.] PAETIES TO THE BILL. 67 cedure, may be made defendants to a bill in equitj'. Every suit in equity contemplates the settlement of a controversy be- tween the parties interested. Naturally, certain of the parties in the controversy seeking the decree of the court are com- plainants, or parties plaintiff, while certain others who oppose their interests are as naturally parties defendant; and so it may be said that persons whose interests are adverse to the interests of the complainant, and who oppose and deny the right to the remedy and relief which the complainant seeks by his bill in equity, should be made defendants in the suit. We have already seen that there are those connected with the controversy who are interested in the subject-matter and the object of the suit; whose interests are the same as the in- terests of the complainant, and in no way adverse to his con- tention, but who, refusing to join in the bill, are made defend- ants; they who desire the same disposition of the case; the same decree. If only such persons are made defendants it would be vain and meaningless to proceed with a case, and a court of equity would refuse to do so, but would require that the defendants, or some of them, have an adverse interest to the plaintiff's claim; that something requiring the interven- tion of the tribunal to settle should be presented, and not a mere statement or claim of rights that all parties agree upon, and about which there is no difference or contention ; for if there is no disagreement there is nothing for the court to settle and no necessity for litigation. But the settlement of the whole controversy is sought; a decree adjudging and defining all interests joined in the litigation; so all persons claiming adversely to the complainant, and all who are necessary parties to a complete determination of the litigation, must be made de- fendants, if they are not already properly joined as complain- ants.^ The necessity that all interested parties should be sub- 1 Bradley v. Gilbert, lo5 111. 154; stream, it was held that those par- Barney V. Latham, 103 U. S. 205, ties were naturally united as re- 214; Bengley v. Wheeler, 45 Mich, spondents who claimed the right to 493. divert the water notwithstanding In Union Mill & Mining Co. v. the complainant's contention. The Dangberg (C. C. A. 1897), 81 Fed. 73, court say: "It is true that the re- where the controversy was to deter- spondents deny that they have en- mine the rights of parties to a tered into any combination to divert specific quantity of the water of a any of the waters of the river to 6S PARTIES TO THE BILL. [§58. jected to the jurisdiction of the court furnishes the reason for the rule. § 58. Some exceptions. — To this general rule as to who can be made defendants, there are some exceptions that should be noted. First. It has been held to be a general rule, "operating by way of exception on the former, that no one need be made a party against whom, if brought to a hearing, the plaintiff can have no decree." ' Second. As a result of the above exception, which is a gen- eral rule, it would follow that the government of the United States cannot, without its.consent, be made a defendant; even if the state within which the court is sitting and where the facts originated permits such a proceeding. It was held in Oarr v. United States'' to be "a fundamental principle that the government cannot be sued except by its own consent; and certainly no state can pass a law, which would complainant's injury or damage, or that they jointly or in common di- vert or use said water, and allege that they claim individual, distinct and separate rights independent of each other; but the pleadings and the proofs, without any conflict, dis- tinctly show that the result of re- spondents' acts are such as to make their individual diversion of the water injurious to complainant's rights, if the complainant is entitled to any prior rights to the water. Their claims are of the same com- mon character, in that they are ad- verse to complainant. They are therefore all properly united as re- spondents, because they all divert water from a common source, the Carson river, above the mills, and claim the right to divert it as against the complainant. These conflicting rights, whatever they may be, can be determined by one suit." Stevens v. Land, etc. Co., 14 Utah, 233, 47 Pac. 81. " The gist of the ac- tion, as set forth in the complaint, is the fraud and mismanagement of defendants, ... in controlling, disposing of, and appropriating, the property of the corporations named, transacting their business and using their credit, by which the rights and interests of all the other parties were affected. In this there is one com- mon point of litigation. That being so, they were all proper parties. . . . It clearly appears, from the allega- tions of the complaint, that the nat- ural persons named as defendants were directors and officers of the four corporations mentioned, and that they so mismanaged the busi- ness of the companies as to cause the plaintiffs, who were stockhold- ers, great loss, and that they will sus- tain further loss unless a receiver is appointed." 1 Van Reimsdyk v. Kane et al., 28 Fed. Cases C. & D. Ct. 16,871. 2 98 U. S. 433, 437. " It is conceded in The Siren (7 Wall. 152) and in The Davis (10 id. 15) that without an act of congress no direct proceeding can be instituted against the govern- ment or its property. And in the latter case it is justly observed that 'the possession of the government can only exist through its officers; using that phrase in the sense of § 58. J PARTIES TO THE BILL. 69 have any validity, for making the government suable in its courts;" the court further observing: "In some cases it might not be apparent until after suit brought that the posses- sion attempted to be assailed was that of the government; but when this is made apparent by the pleadings, or the proofs, the jurisdiction of the court ought to cease. Other- wise the government could always be compelled to come into court and litigate with private parties in defense of its prop- erty." No direct proceeding can be instituted against the government or its property without an act of congress; but when the government institutes the proceeding, it waives its privilege and will stand in the same relation as an individual in the court, except that it will not be liable for costs, and will be exempt from any affirmative relief against it beyond the demand or property in controversy. Mr. Justice Field in de- livering the opinion in The Sircn^ said: "It is a familiar doc- trine of the common law that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public polic}''; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety en- dangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from di- rect suit is, therefore, without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of congress. Such is the language of this court in United States v. Clarke!''' Third. It is a doctrine generally prevailing in the states of the Union that a state cannot be sued in its own courts except as it authorizes the proceeding. In Supervisors v. Auditor- General ^ Mr, Justice Campbell for the court said : " There can be no doubt of the power of the state legislature to refuse any person charged on behalf of the 1 7 Wall. (U. S.) 153. government with the control of the ^gs Mioh. 659; Auditor-General v. property, coupled with the actual Supervisors, 73 Mich. 183. possession.' " 70 PARTIES TO THE BILL. [§ 59. to perform even a contract, and, where it forbids the applica- tion of money in the state treasury to an}'' particular use, no court can interfere. The state is not liable to suit except as it authorizes a suit, and this authority can be revoked at pleasure. This is such elementary doctrine that it only needs statement." Fourth. Foreign states, or their sovereigns, are not suable even though found within the dominion of a foreign country. The comity existing among nations would not permit such a proceeding. Fifth. A fifth exception is found in the provisions of the eleventh amendment to the constitution of the United States. "The judicial power of the United States shall not be con- strued to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state." ^ § 59. Persons partially incapacitated.— (1) Married xoomen: The same reasons which are deemed to incapacitate a mar- ried woman to become a party plaintiff exist as to her being made a party defendant. Ordinarily a married woman at common law must be joined with her husband, and in equity their answers must be joined, but there were exceptions to this rule. Where the husband proceeded in equity and made his wife a defendant, he was said to have waived the right to be joined with her, and to elect that she should, as to the pro- ceeding instituted, be ^ferne sole. And so where the husband was banished beyond the realm, or was an exile; or, whore her own separate property was involved and her husband was in no way adverse, she might appear and answer as 2. feme, sole. And the same rules apply when it is necessary that she should be made a defendant, although her interests might be with the complainant, she refusing to join the complainant.'^ (2) Infants may be made defendants, but must appear and defend by guardian ad litem. As we have seen, the suits are commenced for them and in their behalf by next friend, but when they appear as defendants they appear by guardian ad litem (that is, a guardian appointed during the pendency of 1 Cohens v. Virginia, 6 Wheat. (U. ject in Michigan, a wife's bill against S.) '^64, 405; Osborn v. Bank, 9 Wheat, her husband must have been by next (U. S.) 740. friend. Peltier v. Peltier, Har. Ch. 2 Prior to a statute upon the sub- 19. § 60.] iPAETIES TO THE BILL. 71 the litigation), and should a suit be commenced, and the in- fant appear in court without such guardian, the court, upon its own motion, will appoint one.' (3) Innane persons and idiots may commence an action by next friend, and in some instances by guardian; they should defend by a guardian ad litem, and the court in this case, as in the case of infants, will upon its own motion, if necessary, make such an appointment, and will not allow their defense to proceed without appointing a guardian to attend to it.^ § 60. Joinder, misjoinder, non-joinder of complainants. — In a general way this subject has already been discussed in what has been said as to who should be parties complainant,' but an important consideration of the subject still remains, for the pleader must determine who can properly be joined as parties complainant, who must not be so joined, and when a failure to join certain persons, because of their interest in the subject-matter of the suit, will result in a material defect in the pleading; in other words, he must be able to determine who must be joined, who must not be joined, and when a non- joinder will result in defective pleading. (1) Joinder of comjplainants: The joining of several com- plainants in one bill does not always depend upon their joint interests in the subject-matter of the suit; if the interests of the several persons are joint, they should no doubt join as complain- ants, but often the interests of the several complainants are sepa- rate, but the object for which the bill is filed is the same. It is the joint interest in the object of the bill that tests the question as to whether they shall be joined as complainants. When sev- eral owners of several lots abutting on a street filed a bill to restrain the construction of a street railway, alleging among other things that it would be a damage to their property, they were held to be properly joined, although their interests in the several lots, the subject of the litigation, were several. The iln case of necessity, an infant Wayne Circuit Judge, 43 Mich. 69; beneflciarycanfilea petition in Chan- Toqis v. Williams, 41 Mich. 553. eery by next friend for an appropri- 2 story, Eq. PL, sees. 70, 71. Feeble^ ation from the income of the trust minded persons not under guardian fund. Knorr V. Millard, 57 Mich. 365. may file bill by solicitor. McDaniel The court will guard the interest of v. McCoy, 68 Mich. 333. the infant litigant whether protected ^'Ante, g 50. by guardian or not. Sheahan v. 72 PAETIES TO THE BILL. [§ 60. court say: "Complainants are alike affected by the construc- tion of this road. They were alike interested to restrain its construction. Their interests were therefore common. There was but one object to be accomplished, and no necessity existed for a multiplicity of suits. The defendant was not prejudiced by the joinder of complainants. We see no objection to par- ties joining in a suit, the sole purpose of which is to obtain an injunction to restrain the commission of an act threatened by one party, and alike injurious to the interests of all."^ And where several persons having separate interests iiled their bill, tlie relief sought by each involving the same questions, requir- ing the same evidence and leading to the same decree, it was held that they were properly joined as complainants.^ But where antagonistic causes of action are alleged in the same bill of complaint by several complainants, and the relief for which they respectively pray is totally distinct, requiring dif- ferent evidence and leading to a different decree, the com- plainants are improperly joined.' (2) Misjoinder of complainants: Where the complainants do not have a joint interest in the subject-matter of the suit, and have no community of interest in the object of the bill, but their interests are separate and several, or where their causes 1 Taylor v. Street Ry. Co., 80 Mich, versy relate exclusively to the al- 77; Town of Sullivan v. Phillips, leged conduct and misconduct of 110 Ind. 320; Whipple v. Guile, 23 the defendants as trustees. It not R. I. 576, 48 Atl. 435; Mount Carbon, only appears that by the joinder of etc. Co. V. Blanohard, 54 111. 240; all others of like interest with the Brunner v. Bay City, 46 Mich. 236. plaintiff the defendants will not be 2 Home Ins. Co. v. Virginia, etc. Co., embarrassed or subjected to any ex- 109 Fed. 681. pense or inconvenience in making 3 Walker v. Powers, 104 U. S. 245; their defense, nor will any injustice Mobile Savings Bank v. Burke, 94 be done them, but that the matters Ala. 135; Smith v. Bank, 69 N. H. in dispute can be more conveniently, 254. Separate complainants having economically, and expeditiously ad- a community of interest against the justed in one suit." Chase v. Searles, same defendant may be properly 45 N. a 511; Eastman v. Bank, 58 joined as complainants in a bill in N. H. 421, 432; Page v. Whidden, 59 equity. The court say: "They are N. H. 507, 509. all equally and directly interested It is proper to join plaintiffs bav- in the disposition of any trust funds ing common interests though they now held by the defendants, and in may have distinct title. Lonsdale any damages that may be awarded Co. v. Woonsocket, 21 R I. 498, 44 against them for a breach of the Atl. 929; Proprietors of Mills, etc. v. trust. All the matters in contro- Braintree, etc. Co., 149 Mass. 478. § 60.] PARTIES TO THE BILL. 73 of action set forth in the bill are antagonistic, and the relief which they severally seek involves distinct questions requiring different evidence and leading to a different decree, they can- not join as complainants.^ Where a bill was filed by a large number of persons to set aside as illegal the sale of lots owned by them severally, sold under an assessment, the court say: "Matters in which there is no common interest on the one side or the other are not allowed to be litigated jointly; and while there are some classes of cases where the community of interest is not as plain as in others, we do not think they go far enough to warrant this suit. The joinder of sev- eral parties similarly interested in resisting a common ag- gressor was originally allowed, to save multiplying litiga- tion, to settle once and finally the matter in contention. It was at first strictly cotifiaed to cases where the act com- plained of, if done, or continued, would affect every one in the same way and would affect all, if anj'. It was applied in questions of commons in pasturage, fisheries, and similar in- terests, and in questions of tithes, which were asserted over certain districts. It was extended on the same grounds to frauds or wrongs by corporate agents against the interests of corporators, public and private. It was finally applied to re- strain taxes and assessments, in which the inhabitants of local- ities taxed, or the owners of land in assessment districts, were souirht to be charged for a common burden. There is no doubt that in some of these cases the rule may have been extended somewhat beyond the line first laid down. But in all of the cases which have been well considered, there has been one cause of grievance which at the time of filing the bill involved some aggressive action in which all of the parties complaining were involved in precisely the same way. And we have held distinctly that in such actions, if any person set up grievances not of the same common nature with those of the rest, the bill could not be maintained." - 'Walker v. Powers, 104 U. S. 245; 2 Brunner v. Bay City, 4S Mich. Walsh V. Barney, 38 Mich. 73; Doug- 236; Kerr v. Lansing, 17 Mich. 34; lass V. Boardman, 113 Mich. 618. Miller v. Grandy, 13 Mich. 540; Sco- Persons having adverse interests field v. Lansing, 17 Midi. 437; Young- should not be joined as complain blood v. Sexton, 32 Mich. 406. ant.s. Alston et ux. v. Jones et al., 3 Barb. Ch. (N. Y.) 397. 7-± PARTIES TO THE BILL. [§ ''1- (3) Non-joinder of complainanU: In discussing wiio should be joined as complainants, the question of non-joinder has been in a measure determined. Naturally, those persons whose in- terests in the prosecution of the case are common, and who are materially interested in the suit and liable to be affected in their rights by the decree, should be made parties complainant. By interest is meant a right in the subject of the controversy which a decree will more nearly or remotely affect. To fail to join a person having such an interest in the prosecution of the case would be termed a non-joinder of plaintiffs; but as we have seen, if the party thus interested fails or refuses to join as complainant he may be made a defendant, and so the conse- quences of misjoinder of parties complainant, if they are made defendants, cannot be serious, the aim of the court of equity being to bring the parties before it in one or the other capacity as a complainant or as a defendant. § 61. Joinder, misjoinder, non-joinder of defendants. — (1) Joinder of defendants: Not only should persons be made parties defendant who have, or claim to have, interests adverse to the complainant, but, as we have seen, all persons should be so joined whose interests are materially affected by the suit, and who, for a full and complete settlement of the entire con- troversy, should be subjected to the court's jurisdiction and direction so that the decree may be effective as to them and their interests. "Whoever the decree would materially affect should be made parties, and if they do not join as complain- ants they should be made defendants; the joinder of defend- ants, therefore, is governed by joint or common interest in the subject-matter of the controversy, and all parties standing in that relation and not properly joined as complainants should be impleaded as defendants. It has been said, "in order to determine whether a suit is multifarious, or, in other words, contains distinct matters, the inquiry is not whether each defendant is connected with every branch of the cause, but whether the plaintiff's bill seeks relief in respect of mat- ters which are in their nature separate and distinct. If the object of the suit is single, but it happens that different per- sons have separate interests in distinct questions which arise out of that single object, it necessarily follows that such dif- § t)l-J PARTIES TO THE BILL. 75 ferent persons must be brought before the court, in order that the suit may conclude the whole subject." ' (2) JI/KJohvler of defendants: Misjoinder is the joining of persons who ought not to be made defendants — who have no joint or common interest in the subject-matter of the suit, and who will not be affected by the decree prayed for in the bill. To join such persons as parties would render the bill multifa- rious. This subject has been already discussed.^ It has been held " that if a joint claim against two or more defendants is improperly joined in the same bill with a separate claim against one of those- defendants only, in which the other defendants have no interest and which is wholl}^ unconnected with the claim against them, all or either of the defendants may demur to the whole bill for multifariousness."^ (3) Xon-joinder of defendants: The failure, to join persons materially interested, and whose interests must be considered and passed upon in arriving at a decree, is termed non-joinder. Who are proper and indispensable parties to the bill has been considered, and the necessity of bringing such persons into the case as parties, that the decree ma\'^ settle and determine the whole controversy, noticed. The non-joinder or misjoinder of parties plaintiff or defendant can be raised by any defendant in the suit; for not only is he interested because of the effect of the decree in settling the whole controversy, but he has a right to insist that all persons materially interested should be joined; for it may be that the person whom complainant has failed to join is one the court upon the hearing would find lia- ble for the wrongs and injuries complained of, or at least suffi- ciently liable that the responsibility should be partially borne by him. And in equity the defendants as well as the com- 1 Salvidge v. Hyde, 5 Madd. (Eng.) Chase v. Searles,45 N. H. oil; Bowers 146; Torrent v. Hamilton, 95 Mich. v. Keesecher, 9 la. 433; Hill v. Moone, 159; Hulbert v. Detroit Cycle Co., 104 Ala. 353; Pullman v. Stebbins, 107 Mich. 84, where it was held 51 Fed. 10; Densmore v. Savage, 110 that a judgment creditor who files Mich. 27. a bill for the purpose of impounding 2 gee ante, § 38. all the assets of the debtor to pay his 3 Swift v. Eckford, 6 Paige (N. Y.), debts, may malie every person to 22-28; Boyd v. Hoyt, 5 Paige, 65; whom the debtor has fraudulently Woodruff v. Young, 48 Mich. 548; conveyed property a defendant; MoBride v. Mclntyre, 91 Mich. 406. 76 PARTIES TO THE BILL. [§ 62. plainants may insist that a decree be found placing the liabil- ity where in justice and equity it belongs; and then, too, be- cause frequently from the answers of such persons valuable discovery of facts may be obtained which would influence the findings of the court, if not defeat the prayer of the bill. Ad- vantage may be taken of these defects, as we shall see, by de- murrer or by plea; but their determination, it has been said, rests upon no abstract rule which can be universally applied, but each case depends upon its own facts and circumstances and the sound discretion of the court.^ But where it is not in the power of the complainant to make persons who are sub- stantially interested parties to the suit, the bill will not be held bad for non-joinder, nor will it be held defective for the non- joinder of persons who have an unknown interest which would ■not be affected by the decree.^ All that has been stated as to who should be made defendants is, of course, subject to the exceptions applying to parties already discussed.^ § 62. Bringing in new parties. — Great latitude is allowed the complainant by way of bringing in new parties after the case has been commenced, even at any time before the final decree. That principle of equity pleading which has been so •often repeated is ever present in the mind of the court. It is the aim of the equity court to settle the whole controversy in the one suit; to do "complete justice and not by halves." The equity court never loses sight of this; and so when it is dis- covered that persons interested and necessary to the settlement of the controversy' have not been made parties, the plaintiff, upon representing this fact to the court by petition, will be permitted to implead such persons either as complainants or defendants in the suit — complainants should they so consent, but otherwise defendants. And even should it appear at the final hearing of the cause that certain persons should be made de- fendants, in order that the decree may be such as to put an end to the litigation, and of such a nature that the perform- ance of it will be perfectly safe to all who obe}' it, the court ' Torrent V. Hamilton, 95 Mich. 159, lage of Grandville v. Jenison, 84 161; 1 Danl. Ch. PI. & Prac. 334. Mioh. 54; Wight v. Roethlisberger, 2 Michigan State Bank v. Hast- 1 16 Mioh. 241. ings, 1 Doug. (Mich.) 225, 248; Hoi- ' Ante, % id. comb V. Mosher, 50 Mich. 253; Vil- § 63.] PAETIES TO THE BILL. 7T will, upon its own motion, order such persons to be made par- ties defendant that their interests may be represented and the litigation be completely settled. Such an amendment to the bill of complaint, if sought by the party complainant, must be by petition to the court, alleging sufficient reasons for bringing the new parties into the case. The petition should so fully set forth the facts that the court would be able to make the order from the facts alleged. The facts set forth in the petition and the amendment sought must be germane to the issue made by the bill and pleadings already in the case.^ § 63. Intervention. — Following the same equitable princi- ple invoked in the last section, persons who are interested in the subject-matter of the suit who have not been made parties, and whose interests would be affected by the decree of the court, may, upon petition alleging facts which conclusively show that they have a material interest in the controversy and ought in equity and good conscience to be allowed to be heard, be admitted either as complainants or defendants, as to the court may seem proper. " All the parties interested are entitled to be heard if they desire it, and are proper, if not necessary, parties to the proceedings."- But it has been held, and for very obvious reasons, that this rule would not apply to suits ill personam, but applies to suits in rem. This rule is very clearly laid down in the case of Coleman V. Martin? The court say: "In a suit in rem, where a court has jurisdiction over the res, and its decree affects the interest iFranklin Bank Note Co. v. Rail- for insisting on and maintaining way Co., 103 Ga. 547, 30 S. E. 419; their rights." French v. Gapen, 105 Berryman v. Haden, 113 Ga. 753, 38 U. S. 509. S. E. 53; Vandeford v. Stovall, 117 In Crippendorf v. Hyde, 110 U. S. Ala. 344. 376, 383, the court say: "No one, 2First Nat. Ins. Co. v. Salisbury, even in equity, is entitled to be 130 Mass. 303. The court in the made or to become a party to the opinion say: "The petition of the suit unless he has an Interest in its majority of the bondholders, who object, yet it is the common practice were not originally made parties, of the court to permit strangers to that they be permitted to come in the litigation, claiming an interest and be joined as plaintiffs, is the in the subject-matter, to intervene only means which they could adopt on their own behalf to assert their to make themselves parties, and to titles." put them into the proper position ^g Blatchf. (U. S.) 119. (^ PARTIES TO THE BILL. [§64. in the res of all persons who have any interest in the res, a person who has a lien or claim upon, or other interest in the res, is allowed to intervene and be heard for his own interest in the res. The theory of this is that the person, by his inter- est in the res, has an interest, in a legal sense, in the subject- matter of the controversy. But in a suit in personam a per- son not a party to the suit can have no interest, in a legal sense, in a personal claim made, in the suit, against a defend- ant therein, unless it is necessary that such person, not a party, should be made a party in order to properly enforce such claim." § 64. Some observations as to parties. — Corporations: A corporation is a legal entity and may sue or be sued in any of the courts. The stockholders are not the corporation, and though all of them were made parties in a suit they would not stand for the corporation ; and a decree in such a suit, if it should be made, would not bind the corporate company. "When it is necessary to file a bill on behalf of a corporation, the cor- porate name is used the same as though it were an individual; and so if the corporation is made a defendant. This rule ob- tains whether the corporation be public or private, for corpo- rations may be made parties in chancery; but if discovery is sought, and the facts are in the possession of some officer of the corporation, such officer should be joined as a party de- fendant and the information sought from him. Partnerships: If relief is sought in equity by or from a part- nership, the individual members of the concern are made par- ties by a proper allegation showing or referring to them as partners doing business under the firm name or style adopted by the concern ; as, for example, A. B. and C. D., partners, doing business under the firm name or style of A. B. & Company. Ko particular form is required ; simply a setting forth of the facts in plain terms. Trustee and cestui que trust: When a trust is involved in the litigation the persons interested are the trustee and the bene- ficiary or cestui que trust, and following the general rule they must be made parties, but should be described in such a manner as to show clearly their relation to the trust; and so if the beneficiary, the cestui que trust, should file a bill to foreclose a mortgage given to the trustee for his benefit, he should make § C-i.J PARTIES TO THE BILL. 79 the trustee, as \\'ell as the mortgagor, a party; but it has beea held that it is not necessary to make the cestui ijue trust a party when the object of the suit is merely to reduce the property into possession. In Christie V. Herrich^ the court, noticing an apparent ex- ception to this rule, said: "The general rule unquestionably is that all persons materially interested in the subject-matter of the suit ought to be made parties; and that the cvstui ipAe trust, as well as the trustees, should be brought before tlie court, so as to make the performance of the decree safe to those who are compelled to obej' it, and to prevent the necessity of the defendants litigating the same question again with other par- ties. But the case of assignees, or other trustees of a fund for the benefit of creditors, who are suing for the protection of the fund, or to collect moneys due the fund from third persons, appears to be an exception to the general rule that the cestui que trust must be made a party to a suit brought by a trustee. Lord Eedesdale says, trustees of real estate, for the payment of debts or legacies, may sustain a suit either as plaintiffs or defendants, without bringing the creditors or legatees before the court, which in many cases \\'ould be almost impossible; and the rights of the creditors or legatees will be bound by the decision of the court against the trustees." Heirs, executors and administrators as parties: At common law the personal property of an intestate vests in his personal representatives for the settlement of his estate and not in his ieirs until the estate is settled and distribution of the person- alty made, as was held in Cullen v. O'^IIura? " It is well settled, both under our own and the English statutes, that when a man dies intestate his personal property does not, like his real es- tate, descend to his next of kin or heirs at law. It remains in abe^'ance until administration granted upon his estate, and is then, as we have before remarked, vested in the administrator, as of the time of the death of the intestate. J^o title vests in 11 Barb. Ch. (N. Y.) 254; Mitford's 347; Whit v. Ray, 4 Ired. (N. C.) 14; PI. (4th Lond. ed.) 174; Franco v. Craig v. Miller, 13 id. 875; Jewett v. Franco, 3 Ves. 76. Smith, 13 Mass. 309; Muir v. Trustees 24 Mich. 132; Salter V. Sutherland, of the Leake & Watts Orphan 123 Mich. 225; Randall v. Lang, 33 Asylum, 3 Barb. Ch. 477. Ala. 751; Koorbaoh v. Lord, 4 Conn. so PAETIES TO THE BILL. [§ 64. his next of kin until his estate has been administered upon, and then the}' take the surplus remaining after payment of the debts of the intestate and expenses of administration, each in his proportion, under the statute of distributions. Until then, an heir or next of kin of the intestate, although having a right to his distributive share, has no right to the possession of either the whole or any specific portion of the personal property. Xor, until distribution, can he maintain any action in respect to it, unless it be founded upon his own actual possession and against a mere wrong-doer. In fact, his rights of possession and of action in respect to the personal property before dis- tribution are neither greater nor less than those of a mere stranger." But the real estate of which an intestate dies seized descends to his heirs who are entitled to the possession, pro- ceeds and control of it. Therefore the question as to who are parties in interest and who will be affected by the litigation depends largely, if not entirely, upon the subject-matter of the suit. If the entire controversy affects only the personalty, and does not either directly or indirectly, or remotely, affect the real estate, the interests of the heirs — as, for example, the en- forcing of a claim against the personal property' of the de- cedent, — the administrator, or if a testate estate, and it did not affect any legacy or interests of devisees, the executor, would be the proper party. It is, however, somewhat difficult to conceive of a case that would not in some degree affect the interest of the heirs by in- directly involving their claims to the real estate, for it is well understood that while the personalty is primarily charged with the payment of the debts of the estate, the real properly is liable when the personalty is insufficient; and so generally it is best, unless it is unquestionable that the interest of the heirs will not be involved, to join the heirs as parties in the suit. In cases where the decedent has in his life-time executed covenants for the performance of which the realty is liable, the heirs must be joined with the personal representatives; and so where a testator has provided that certain of his realty shall be chargeable with the payment of incumbrances, leg- acies, debts or other claims, the heirs must be joined with the personal representatives if litigation results; the rule being clear that if the object of the litigation affects the realty, then §64.J PARTIES TO THE BILL. 81 the heirs are proper and indispensable parties. As, for example, if the suit be one to set aside a deed executed by the decedent, and claimed to have been obtained by fraud, the heirs and not the personal representatives are the indispensable parties.' The subject may be further illustrated by an example where the trust is created by will. If the trust is only chargeable against personal property, as for the payment of legacies or marshaling of assets, then the executor or administrator would necessarily be a party; but if it should be chargeable against the real estate, then the heirs should be parties; if chargeable against both the realty and the personalty, then both the heirs and the personal representatives should be joined. Third parties are sometimes made necessary parties in this class of cases; as, for example, where such persons have possession of the assets or some interest in them, or where a third party is in possession of the real estate, as a tenant or leaseholder. ' Lord V. Underdunok, 1 Sandf. Ch. (N. Y.) 46; Campbell v. Johnston, 1 Sandf. Ch. {N. Y.) 148; Eagle Fire Ins. Co. V. Cammet et al., 2 Edw. Ch. (N. Y.) 127; Livingston v. Iron Co., 2 Paige Ch. (N. Y.) 390. Where the vendor of lands was induced to sell the land upon false representations, or under circumstances equivalent thereto, and afterwards makes a subsequent conveyance while the fraudulent vendee is in actual pos- session and dies leaving the matter in this unsettled state, it was held that the heirs of the vendor should be parties to a bill to set aside the sale of the property obtained by fraud, and that a bill filed by the second vendee for that purpose can- not be sustained. The court say: "But I think there is an insuperable objection to the complainant's re- covering upon his bill in its present shape. Although the conveyance of the land was obtained by a fraudu- 6 lent misrepresentation, it was not void. It was only voidable at the election of the vendor. And the defendants, or some of theni.^were in the actual possession of the prem- ises, claiming title to the same under their deed at the time of the con- veyance to the complainant. The legal title to this property could not pass to the complainant under that conveyance, while it was thus held adversel3'. If John Livingston was still living he would be a necessary party to a bill to rescind the sale on the ground of fraud. Since his death, all his heirs-at-law, or the devisees of this particular part of his estate, are necessary parties." Curow v. Mowatt, 3 Edw. Ch. (N. Y.) 57; Jack- son V. Forrest & Leggett, 3 Barb. Ch. 576; Richardson v. Richardson, 83 Mich. 653; Story, Eq. PI., sees. 170, 171, 172; Glover v. Patten, 165 U. S. 394; Potter V. Gardner, 13 Wheat. 499; Dandridge v. Curtis, 3 Pet. 370-77. CHAPTEK V. DRAFTING THE BILL. 65. Certainty and clearness to be observed. 66. The necessary parts of the nine parts of tlie bill. 67. Signing the bill. 68. Verification of the bill. § 69. Form of the several parts of the original bill. 70. A form of bill in equity. 71. General observations as to form, etc. 73. The filing of the bill. § 65. Certainty and clearness to be observed. — It has already been noticed that the rules of equity pleading do not demand that degree of certainty that is required in common-law plead- ing, but there is a degree of certainty that must be observed, and if not observed will render the pleading ill. It has been said, however, that " certainty to a common intent is the most that the rules of equity ordinarily require for any purpose." ^ There are necessarily, as is generally conceded, certain portions of the chancery bill that must be stated with clearness and certainty: the right, title and claim of the plaintiff, the in- jury or grievance of which he complains; the relief prayed for, and with as convenient certainty as possible the essential cir- cumstances of time, place, manner and other incidents. Pro- lixity and unnecessary verbiage is to be avoided. Clear, full, but concise expression, giving the substance of the salient facts relied upon, is to be desired. The right or claim of the plaint- iff is the foundation of the action. If there is failure in this, the suit cannot proceed. Exactly what title the plaintiff has to the subject-matter of the controversy, the full extent of his right or claim, the defendant is entitled to know that he may make his answer or defense, and the court must know in order to determine the right of the plaintiff to proceed. With what certainty this title must be set forth has already been noticed.^ Not by setting forth in lime verla title deeds, contracts or records upon which it rests, but sufficient of sub- 1 Story, Eq. PI., sec. 240. ^ Ante, §§ 33, 33, 34. § 66. J DKAFTING THE BILL. 83 stance and description that tlio defendant and the court may know what they are, and if recorded where the record may be found. The injury or grievance is no less important; this should be clearly and concisely set forth, for upon this state- ment the defendant depends to meet the case made, and the court to determine if the bill is well founded in equity. And then, too, the injury or grievance must appear to be a natural result of the facts and incidents set forth in the statement of facts upon which they depend. The relief prayed for is the third very essential part of the bill. Great care should be taken in framing this part of the bill. Certain requirements must be observed. First, the prayer, as has been stated, must be consistent with the facts alleged and the grievances complained of. Second, no more nor no less should be asked by way of relief than complainant is equi- tably entitled to; and third, the prayer should particularly state from what persons or parties relief is sought.' § 66. The necessary parts of the nine parts of the bill. — Keeping in mind the essentials of the bill discussed in the pre- ceding section, we can better understand which of the nine parts of the original bill in equity are necessary to be used in drafting the bill. Ordinarily it is sufficient to include the following parts and in the order stated: The address, the in- troduction, the premises or stating part, the interrogating part when discovery is sought, the prayer for relief, and the prayer for process. This comports with the rule adopted by the United States court.'^ ^ Ante, §§ 33, etc. that the acts complained of are con- 2U. S. Eq. Rule 21. " The plaintiff, traiy to equity, and that the defend- in his bill, shall be at liberty to ant is without any remedy at law; omit, at his option, the part which and the bill shall not be demurrable is usually called the common con- therefor. And the plaintiff may, in federacy clause of the bill, averring the narrative or stating part of his a confederacy between the defend- bill, state and avoid, by counter- ants to injure or defraud the plaint- averments, at his option, any matter iff; also what is commonly called or thing which he supposes will be the charging part of the bill, setting insisted upon by the defendant by forth the matters or excuses which way of defense or excuse to the case the defendant is supposed to intend made by the plaintiff for relief. The to set up by way of defense to the prayer of the bill shall ask the spe- bill; also what is commonly called cial relief to which the complainant the jurisdiction clause of the bill, supposes himself entitled, and also 84: DEAFTING THE BILL. [§ 67. § 67. Signing the bill.— When the bill is drawn and com- plete in its essential parts it should be signed by counsel for the complainant; this is required to show to the court that the bill is presented in good faith for consideration. It is taken as a guaranty on the part of the counsel, who is an officer of the court, and upon whom the court has a right to depend, that the case presented is not frivolous. The signing of the bill is provided for by rule in the United States court.' " Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed." The lawyer conducting suits and proceedings in chancery is usually designated as a solicitor, or solicitor and counselor, and is so described when signing pleadings or petitions filed in the court. The usual manner of signing the bill in equity is to add, after the signature, as descriptive of the person, " solicitor and of counsel for the complainant." In this country there is no substantial distinction between counsel and solicitor, and it has been somewhat mooted whether, if a counselor of the court should sign his name to tiie bill, it would not be sufficient if he did not add solicitor and of counsel.^ But the general practice shall contain a prayer for general torney, or a barrister, but there is no relief; and if an injunction, or a such distinction in our courts and writ of ne exeat regno, or any other under our practice; and the reason special order, pending the suit, is re- of the rule requiring the description quired, it shall also be specially asked of the person to be added, ceasing, for.'' the rule itself, it would seem, ought 1 U. S. Eq. Rule 24. to cease. An attorney regularly ad- 2Stinson v. Hildrup, 8 Biss. (U. S.) mitted to practice in this court is a 376. Judge Drummond, in rendering counselor of the court within the the opinion, says: "The authorities twenty-fourth rule. A distinction is which have been referred to by the sometimes made as to these term& counsel of the defendants are, most which is purely arbitrary, between of them, from the English courts, proceedings in equity and at common where, as is well known there is a law. The practice of the bar generally distinction between attorneys, solic- is, when a member signs a common- itors and barristers, and it might be law pleading it is as attorney; if an a very proper practice in courts equity pleading, he signs it as solic- where there was this distinction that itor. But this is a distinction arising there should be added to the signa- merely from the two kinds or modes ture the description of that part of of proceeding. He is counsel and the profession to which the person attorney of the court in whichsoever belonged, whether a solicitor, an at- form he appends his signature. In. §67.J DEAFTING THE BILL. 85 is as stated, and in most of the states it is required.^ Usually the bill is also signed by the complainant, his signature adding indorsement to the allegations in the bill of complaint. If the bill is by a private corporation, it should be signed by some officer of the company authorized to do so — generally by the president or manager; if by a municipal corporation, by the mayor of the city or president of the village, as the case may be. The bill may be signed by an attorney in fact of the com- plainant, or an agent authorized to do so, and is often signed for the complainant by his solicitor; but the bill need not be signed by the complainant if it is signed by counsel, unless it is required by a rule of court or a statute of the state.- JSTo doubt a bill signed by the complainant would be sufficient without the signature of a solicitor of the court, because in this country any person may appear in any court and conduct his own case in person.' common-law proceedings we speak of the actor or party bringing the suit as plaintiff, and in equity pro- ceedings as complainant; but in point of fact this is a distinction %vithout a difference. The complainant in the equity proceeding is the " plaint- iff," as the plaintiff in the common- law proceeding is the " complain- ant." They are convertible terms, although, for the purpose of distin- guishing whether the suit is at law or in equity, different names are sometimes used. In the equity rules of the supreme court the actor is al- ways called plaintiff, and not com- plainant. " It will be observed that the twenty-fourth rule does not require that the party signing as counsel shall give any character to his signa- ture. It does not say that he shall designate that he is of counsel, or solicitor, or an attorney, but simply that his signature shall be annexed to the bill. 'The bill shall contain the signature of counsel' It might be a matter of grave doubt, whether. in point of fact, the true construc- tion of this rule, if a counselor of the court did actually append his signa- ture to the bill, would require him to describe himself in any other way than what might be inferred from the mere signature itself. "I am somewhat at a loss to know what is the distinction under our practice between the terms 'solic- itor' and 'counselor.' I should be very much inclined to think that if there were the signature of counsel to the bill, whether he was described as 'counsel,' as 'solicitor' or as 'at- torney,' that the description might be rejected as surplusage, and that it would stand as a compliance with the rule." 1 Eveland v. Stephenson, 45 Mich. 394; Davis v. Davis. 19 N. J. Eq. 180; 1 Danl. Ch. PI. & Pr. 313 ; Story, Eq. PI., sec. 47; Bernier v. Bernier, 73 Mich. 43. Bill may be signed by solicitor. Henry v. Gregory, 39 Mich. 68; Stin- son V. Hildrup, SBiss. (U. S.)376. 2Stadler v. Hertz, 13 Lea (Tenn.), 315; Hatch v. Eustaphieve, Clark's 1 Chapman v. Publishing Co., 128 Mass. 478; Carleton v. Rugg, 149 Mass. 550. 86 DEArriNG THE BILL. [§68. § 68. Yerification of the bill. — "There is no rule requir- ing bills in cases of general equity cognizance to be sworn to" either in this country or in England.' It is, however, the recognizetl practice in this country and in England that where the " bill attempts to remove into a court of equity matters cognizable in a court of law, and bills requiring the prelimi- nary aid of the court upon facts stated in the bill, if the facts are not otherwise substantiated, should be verified." ^ The reason of the rule requiring verification of the bill in cases where the bill seeks the preliminary aid of the court, as the asking for a writ of injunction, or the appointment of a re- ceiver ex parte, is apparent. In such cases the bill must be relied upon for proof of the facts it contains and upon which the action of the court is based. It has been held, however, that failure to verify an injunction bill is of no importance except on motion for an injunction, or to prevent an order for the dissolution of the injunction granted ex 'parte? Ch. (N. Y.) 63. If the bill be for a corporation, and is signed by counsel, it need not have the seal of the cor- poration appended. Moundsville v. Railway Co., 37 W. Va. 92. 1 Jerome v. Jerome, .5 Conn. 353. " Independent of any statutoi-y pro- vision, and where no preliminary order is required, it is not generally necessary that bills should be sworn to, although an answer on oath is not waived." 1 Barb. Ch. Prac. 44, note; 1 Danl. Ch. PI. & Prac. (Am. ed.) 395, note 4. 2Moore v. Cheeseman,23Mich.o33; Township, etc. v. Burch, 78 Mich. 641-47; Atwater v. Kinman, Harr. Ch. (Mich.) 345. "Where no prelim- inary order is required it is not necessary that the bill should be sworn to, although the answer under oath is not waived. This is not re- quired by the English practice, or by the rules of this court as they now stand."' Where the bill was framed as a mere pleading and was not con- structed upon the theory that it might be requisite to use it as a sworn statement on which to base an application for preliminary re- lief, and the only relief contemplated was such as would be grantable on final hearing, and the case exhibited was within the ordinary jurisdiction and did not stand on any peculiar ground which might call for a veri- fication of the bill, it was held that it need not be verified. Robinson v. Baugh, 31 Mich. 390. Where neither injunction nor discovery is sough t the bill need not be sworn to. Baker v. Atkins, 63 Me. 305. Generally, when no preliminary order is asked for and no discovery, the bill need not be verified. Jerome v. Jerome. 5 Conn. 352; Labadie v. Hewitt, 85 111. 341; Hilton v. Lothrop, 46 Me. 397; Dinsmore v. Grossman, 53 Me. 441; Waller v. Shannon, 53 Miss. 500. A bill signed by the attorney need not be sworn to. Burns v. Lynde, 88 Mass. (6 Allen), 305. 3Glidden v. Norvell, 44 Mich. 203; Manistique Lumbering Go. v. Love- joy, 55 Mich. 190; T. & A. Ry. Co. v. D., L. & N. Ry. Co., 61 Mich. 9; Lan- § 69. J DRAFTING THE BILL. 87 Bills praj'ing for divorce should be verified for the reason that there must be proof that there was no collusion between the parties at the time of filing the bill. This is usually a statutory requirement, but if there were no such requirement the court could refuse to consider the bill, where no such veri- fication is made, upon the grounds of public policy.^ Creditors' bills to reach equitable assets of a debtor are generally re- quired to be verified, for usually a receiver is asked for; and where preliminary aid is sought these bills by rule are usually required to be verified. § 69. Form of the several parts of the original bill. — The several parts of the original bill have already been named,^ and the parts not required in the modern chancery bill have been noted. The forms of the several parts of the original bill are here appended. 1. The Address. In the United States court: The District \or Circuit] Court of the United States in and for the District of . A. B., Plaintiff, ) v. \ In Equity. C. D., Defendant. ) To the Eonorahle the Judges of the District [or Cirouii] Court of the United States in and for the District of . In the state courts as follows : *• (b) State of Michigan. To the Circuit Court for the County of Wayne, in Chancery.' ^. The Introduction. (a) In the United States Court. John Jones of Detroit, and a citizen of the state of Michigan, brings this, his bill, against William Smith of the city of Columbus, and Samuel Green of the city of Cleve- land, both citizens of the state of Ohio. And thereupon your orator complains and says that . nert v. Pies, 1 Cleve. L. Rep. 210, 4 •^Ante,%21. Ohio Dec. 382. ' It should be observed that the 1 Briggs V. Brigga, 20 Mich. 34; address used in the several states is Green v. Green, 26 Mich. 437; Ayres provided by the statutes or rules of V. Gartner, 90 Mich. 380. court in the particular state. DRAFTING THE BILL. [§69. (b) In the state courts usually as follows : Your orator, John Jones of the city of Detroit, in the county of Wayne, respectfully represents unto the court that . (c) If the bill is exhibited by a woman, as follows : Your oratrix, Mary Jones of the city of Detroit, in the county of Wayne, respectfully represents unto the court that . (d) If by husband and wife, as follows: Your orator and oratrix, John Jones and Mary Jones, his wife, of the city of Detroit, in the county of Wayne, re- spectfully represent unto the court that . (e) If the bill is exhibited by an infant, as follows: Your orator, James Jones, of the city of Detroit, in the county of Wayne, an infant under the age of twenty-one years, to wit, of the age of sixteen years, by John Doe, of the said city of Detroit, his next friend, represents unto the court that . Or, if hy guardian, insert: By John Doe, of the city of De- troit, in the county of Wayne, his guardian, respectfully shows unto the court that . (f) If the bill is exhibited by a corporation, as follows: Your orator, The Detroit Knitting Woriis, a corpora- tion duly organized and doing business under and by virtue of the laws of the state of Michigan, respectfully represents unto the court that . 3. The Premises or Stating Part. That, etc. [here should be inserted the facts and circum- stances upon which the complainant relies, stating his title to the subject-matter of the suit and the wrongs and grievances complained of]. J),. The Confederating Part. [This part is unnecessar}', but may, however, be used.] But now so it is, may it please the court, that the said William Smith, combining and confederating with divers per- sons [if there are several, name them], at present unknown to your orator, whose names, when discovered, your orator prays may be here inserted with apt words to charge them as par- ties defendant, and contriving how to wrong and injure your orator in the premises, he, the said William Smith, absolutely refuses, etc. [here stating the supposed grounds on which de- fendant avoids plaintiff's claim, which should be traversed in the charging part of the bill]. § 69.] DEAFTING THE BILL. 89 5. The Charging Part. [This part is also unnecessary, but used at pleader's option.] That the defendant sometimes alleges and pretends [here stating the supposed pretenses of the defendant], and at other times he alleges and pretends, etc., whereas your orator charges the contrary thereof to be the truth, and that [here state the special matter with which plaintiff meets the defendant's sup- posed claim]. 6. The Jurisdictional Clause. [This clause is also unnecessary.] All which actings, doings, and pretenses of the defendant \or duftndants, if there are more than one] are contrary to equity and good conscience and tend to the manifest wrong, injury and oppression of your orator in the premises. In con- sideration whereof, and inasmuch as your orator is entirely remediless in the premises according to the strict rules of the common law, and can only have relief in a court of equity where matters of this nature are properly cognizable and re- lievable. 7. The Interrogating Part. [This is usually unnecessary, or, if used, is generally con- densed and in more concise language.] To the end, therefore, that the said William Smith, and the rest of the confederates when discovered, may, upon their several and respective oaths, full, true, direct and perfect an- swer make to all and singular the matters hereinbefore stated and charged as fully and particular as if the same were here again repeated, and the}' thereunto interrogated, and that not only as to the best of their respective knowledge and remem- brance, but also according to the best of their respective knowl- edge, information and belief. [If discovery is sought the fol- lowing may be added:] And more particularly that they may answer and set forth, first, whether, etc. [here inserting spe- cial interrogatories to be answered by the defendant]; second, whether, etc. [here inserting other interrogatories, etc.] 8. Prayer for Relief. And that the defendant may come to a fair and just account [here state the special relief the complainant seeks; that is, in- sert the special prayer, and follow it by a general praj^er as follows:] And tnatyour orator may have such further and such other relief in the premises as the nature of his case shall re- quire and as shall be agreeable to equity and good conscience. 90 DEAFTING THE BILL. [§70. 9. Prayer for Process. May it please the court to grant unto your orator the peo- ple's writ of subpoena issuing out of and under the seal of this honorable court, to be directed to the said William Smith, therein and thereby commanding him, on a certain day and under a certain penalty to be therein inserted, that he person- ally be and appear before this honorable court, then and there to answer the premises, and to stand to, abide by and perform such order and decree therein as to this court shall seem proper, and as shall be agreeable to equity and good conscience. And your orator will ever pray. § 70. A form of bill in equity. — The following is a bill in equity in an assumed case for specific performance, showing the several parts of the bill; those originally in use and those generally used at the present time: The address. The premises or stating part. State of Michigan. The Circuit Court for the County of "Wayne, in Chancery. Your orator John Jones, of the city of Detroit The introduction, m the couuty of Wayne and state of Michigan, respectfully represents unto the court: I. That one William Smith of the county of Wayne, on the 10th day of March, 1901, claiming to be the owner of and in possession of the west half (J) of the northeast quarter (-J) of section in township • north of range east, in said county of Wayne and state of Michigan, entered into a certain written agreement with your orator for the sale of the said described premises, which said written agreement was duly executed and delivered by the said William Smith to your orator. II. That by the said agreement so executed and delivered as aforesaid, the said William Smith covenanted and agreed for himself, his heirs, executors and administrators, for and in consideration of five thousand dollars to be paid to him, the said William Smith, as hereinafter mentioned, well and truly to convey, by a o^ood and sufficient warranty deed in fee simple, to your orator, his heirs or assigns, the piece or parcel of land herein above described; and in consideration whereof your orator covenanted and agreed to pay to the said William Smith, his heirs, executors or administrators, the said sum § 70.] DEAFTINci THE BILL. 91 of five thousand dollars as follows, to wit: Five hundred dollars at the time of executing and delivering of said agreement, which was then and there duly paid to the said William Jones, and the receipt thereof duly acknowledged; one thousand dollars in six months from the delivery of said agreement, and the remainder of said five thousand dollars, as follows: thirty -five hundred dollars on the lUth day of March, A. D. 1902, with interest on all unpaid amounts as by the said agreement, ready to be produced as this honorable court shall direct, will more fully and at large appear; a copy of said agreement marked Exhibit "A" Is hereto attached which your orator hereby makes a part of this, his bill of complaint. III. Your orator further represents that com- plying with the terms of said agreement he paid to the said William Smith the full amount of said second payment mentioned in said agreement upon the due day thereof, to vyit, the sum of one thousand dollars with the interest, due on the 10th day of September, A. D. 1901. IV. Your orator further represents that he has always been ready and willing, and is now ready and willing, and hereby offers to fuU}^ perform the said agreement upon his part, and that on the 10th day of March, 1902, undertaking to so perform his said agreement herein, he offered to pay the full amount remaining due upon said agreement to the said William Smith, and then and there requested the said William Smith" to execute and deliver to him a good and sufficient warranty deed of said described premises therein, as by said agreement he had covenanted to do; but the said William Smith then and there refused, and still does refuse, to comply with his agreement and undertaking, and execute and deliver to your orator said deed. V. But now so it is, may it please the court, that the said William Smith, combining and con- federating with divers persons at present un- known to your orator, whose names, when dis- covered, your orator prays he may herein insert The^confederat- ^jt^j proper and apt words to charge them as parties defendant, and contriving how to iniure (May be omitted.) "^i ^ ■ ^\ ■ u^i ' and wrong your orator m the premises, he, the said William Smith, absolutely refuses to comply with his said contract and your orator's request, 92 DRAFTING THE BILL. [§ TO. The charging part. (May be omitted.) The jurisdictional clause. • Affidavit of non-appearance. William Smith, Defendant. ) Wayne County — ss. X. Y. Z., of the city of Detroit, state of Michigan, being first duly sworn, deposes and says: That he is the solicitor for the complainant in the above entitled cause and has the entire management and conduct of said cause for said complainant. That as he is informed and believes, and as is shown by the return of the sheriff on file in said cause, the writ of subpoena was personally served upon William Smith, the defendant herein, on the day of , 1902; 122 PEOCEEDINGS TO A DECEEE PEO OONFESSO. [§ 98. the service was regular, either personal or constructive; that the time for appearing has expired and no appearance has been entered, and no notice of the appearance, as required by the rules and practice of the court, has been served upon him. that more than fifteen days have elapsed since the service of said writ as aforesaid, and no notice of appearance has been served upon the solicitor for the complainant, nor has the defendant, as appears from the records in this cause, entered or caused his appearance to be entered as required by the rules and practice of tliis court. X. Y. Z. Subscribed and sworn to before me this day of , 1903. X. L., Notary Public, Wayne County, Michigan. If the defendant was brought in by an order for publication, make the affidavit conform to the facts. The order taking bill as confessed for want of defendant's appearance may be as follows: {Title of court and cause.) On filing due proof of personal service of the subpoena issued in this cause on the defendant, William Smith, on or before the return day thereof, and more than fifteen days having elapsed since the service of said writ of subpoena, and it appearing by proof that defendant has not appeared [or has not appeared and answered, as the ease may be], on motion of X. Y. Z., solicitor for the complainant, it is ordered that the bill of complaint filed in this cause be, and the same is hereby, taken as confessed by the said de- fendant, William Smith, and that it be referred to J. K., a circuit court commissioner, to take proofs of the facts and circumstances stated in said bill, and that said commissioner with all convenient speed report to this court said proofs, togetlier with his opinion thereon. The following form may be used when the defendant is a non-resident: (Title of court and cause.) County of Wayne, ss. X. Y. Z., being first duly sworn, deposes and says: That he is the solicitor for the complainant in the above entitled cause; that he knows the de- fendant, and that said defendant resides out of the state of Michigan, to wit, in the city of New York, in the state of New York, and that because of the continual absence of the said defendant from this jurisdiction since the commencement of this cause he has been unable to have served upon him the writ of subpoena issued herein. X. Y. Z., (Jurat.) Solicitor for Complainant. If the affidavit is upon information and belief, the source of the informa- tion shou'd be stated, and a further statement that deponent verily believes it to be true. If the defendant is concealed within the state, the affidavit will be made showing these facts, or any other facts that may be grounds for the mak- ing of an order for publication. The order of publication for an absent, concealed non-resident defend- ant may be in the following form: (This order may be granted by a circuit judge or a circuit court commissioner.) (Title of court and cause.) It satisfactorily appearing to the court by affidavit on file that the de- fendant. William Smith, is not a resident of this state, but resides in the city of New York, in the state of New York [or is a resident of this state, but is now absent from the state or from his place of residence, or is con- cealed within the state for the purpose of avoiding service of process, or. § 9S.] PEOCEEDINGS TO A DECEKE PEO CONFESSO. 123 3d. The order pro confesso must be regularly entered in the ofBce of the register in chancery, and before a decree is made it must appear by affidavit that all the proceedings in the cause have been regular and in conformity to the practice. that his last place of residence was in this state, but that his present place of residence cannot be ascertained], on motion of X. Y. Z., complainant's solicitor, it is ordered that the said defendant, William Smith, cause his ap- pearance to be entered herein within three months from the date of this order [or within months from the date of this order — the time required by statute]. And in case of his appearance that he cause his answer to the complain- ant's bill of complaint to be filed and a copy thereof to be served on said complainant's solicitor within twenty days after service on him of a copy of said bill and notice of this order, and tliat in default thereof said bill be taken as confessed by the said defendant. And it is further ordered that within twenty days after tlie date hereof the said complainant cause a notice of this order to be published in the , a newspaper published and circulating in said county, and that said publication be continued therein at least once in each week for weeks in succession, or that he cause a copy of this order to be personally served on said non-resident de- fendant at least twenty days before the above named time prescribed for his appearance. X. Y. Z., Complainant's Solicitor. O. P., Circuit Judge. Before the default can be entered the printer must furnish a copy of the notice, as published, with affidavit of the printing of the same in the newspaper designated, which may be in the following form: State of Michigan, ) „„ County of 'Wayne. \ ^^ Q. R., being duly sworn, deposes and says that the annexed printed copy of a notice was taken from , a newspaper printed and circulat- ing in said county; that said notice was published in said newspaper for consecutive weeks; that the first insertion thereof was on the day of , 190'J, and that the last insertion was on the day of , 1903; that he is a foreman of the printers [or, the printer, or, the clerk of the printer] of said newspaper and knows the facts which are stated herein. Q. R. Subscribed and sworn to before me this day of , A. D. 1903. , Notary Public, 'Wayne County, Michigan. The printer's bill, receipted, should be appended. The affidavit of defendant's non-appearance will be in accordance with the form already given, substituting the facts of publication and failure to- appear, etc. The order taking the bill as confessed after publication may be in the following form: (Title of court and cause.) On filing due proof of publication of notice of the order requiring the de- fendant, "William Smith, to appear and answer the bill in this cause [or, in case the order has been served as directed, on filing due proof of service of the order requiring the defendant "William Smith to appear and answer the bill in this cause], and the time limited in said order having expired, and on reading and fl;ing due proof that said defendant, "William Smith, has not appeared, on motion of X. Y. Z., solicitor for the complainant, it is ordered that the bill of complaint which is filed in this cause be and the same is taken as confessed by said defendant, "William Smith. And it is- further ordered that it be referred to J. K., one of the commissioners of 124 I'EOOEEDINGS TO A DECREE I'EO OONFESSO. [§ 99. This affidavit is called an affidavit of regularity, and is for the convenience of the court who hears the cause. The default of the defendant having been regularly entered, the case may be brought on for hearing upon proofs to be taken in open court, as provided by the statutes in naost of the states; or, the cause may be referred to a master in chancery, in some states called a commissioner, or a circuit court commissioner, to take the proofs, and, when taken, the cause will be heard by the court upon the proofs so taken by the master. The course of proceeding is governed by the statutes and rules of practice in the different jurisdictions. The defendant may appear, however, at any time before his default is entered for non-appearance, even though the time for his appearance as fixed by rule of the court has expired. § 99. Default for failure to demur, plead or answer. — Should the defendant enter his appearance in the cause, but fail within the time prescribed by rule to either demur, plead or answer to the bill of complaint, upon that fact properly appearing the complainant may enter the defendant's default and proceed to a decree pro confesso. The failure of the de- fendant to comply with the rules and practice in this respect should be shown by affidavit, generally of the complainant's solicitor, showing that the defendant appeared in the cause; that a copy of the bill of complaint has been duly served upon him; that the time has expired for the defendant to demur, plead or answer, and that he has failed to do so. The defend- ant may file and serve his demurrer, plea or answer at any time before his default is regularly entered, regardless of the fact that the time fixed within which he can answer, demur or plead has expired. tliis court residing in the county of Wayne, to take proof of the facts and the circumstances stated in the bill in this cause, and that the said commis- sioner take proofs of facts and circumstances set forth in said bill, and with all convenient speed report to this court said proofs and his opinion thereon. [If the case be a mortgage foreclosure, or a case demanding computation, the following may be added :] And that the said commissioner do examine the complainant on oath as to any payments that may have been made to him, or to any person for his use, on account of the demand mentioned in the bill in this cause, and which ought to be credited on such demand. And that the said commis- sioner compute and ascertain the amount actually due the complainant from the said defendant, with the interest thereon to the date of his report. O. P., Circuit Judge. § 100.] PROCEEDINGS TO A DECREE PRO CONFESSO. 125' § 100. Appearance of defendant entitles him to notice of subsequent proceedings. — The appearance of the defend- ant, even though he does not demur, plead or answer, entitles him to a notice of every step taken in the cause, and he may, by himself or his solicitor, be present whenever any proceed- ings are had in the case, and may cross-examine witnesses pro- duced by the complainant, but cannot introduce any new or affirmative proof. He may also f51e exceptions to the report of the master to whom the case was referred, and resist its approval. It is his privilege also to object to the decree being entered because of failure of proper allegations in the bill, or proof to sustain it.^ The rights of the defendant, however, in this respect are largely governed by statutes passed in the dif- ferent states, but this right of the defendant to notice of all the proceedings seems to have been recognized by the early hold- ings of the New York chancery court. In Hart v. SmalP the chancellor said "that where a de- fendant had appeared by a solicitor he was entitled to notice of all subsequent proceedings in the cause, although he had suffered the complainant's bill to be taken as confessed for want of an answer."^ In the case oi Railroad Co. v. Ackley,'^ "where a decree 1 Moore v. Titman, 33 111. 358. In ^ 4 Paige (N. Y.), 551. Gault V. Hoagland, 25 111. 266, the 3 Jenny v. O'Flynn, 5 Mich. 215. court say: "A decree pro confesso, In Detroit, etc. Ins. Co. v. Renz, 33 as we understand it, concludes the Mich. 298,299, the court say: "Good party only as to the averments in practice requires that a defendant the bill. He cannot, on error, allege who has appeared in the cause the want of testimony, or the insuf- should have such notice of the entry flcienoy or amount of the evidence of the decree as will afford him an • the court may have heard. The rule opportunity to attend and be heard is well settled that a defendant in upon the settlement thereof." And chancery cannot, on error, object in Cook v. Finch, 96 Mich. 525, it to the sufficiency of complainant's was held that ex parte proceedings proof when the bill is taken for by the complainant after the appear- confessed. It is in such case discre- ance of the defendant in the cause, tionary with the court to' require and a demand of a copy of the bill proof or not. Manchester at al. v. without notice to the defendant, are McKee, Ex'r, 4 Gilra. 517; Johnson irregular and void. V. Donnell, 15 111. 98. He may, how- ^ 171 111. 100; Armstrong v. Build- ever, on error, contest the sufficiency ing Ass'n, 176 111. 298; Monarch of the bill itself, and insist that the Brewing Co. v. Wolford, 179 111. averments contained in it do not 253. justify the decree." I-Jtj PEOCEEDINGS TO A DECREE PEO CONFESSO. [§ 101. pro cunfesso has been entered against a party, he cannot, on error, allege the want of testimony or the insufBciency of the evidence the court may have heard, but the party has the right to contest the sufficiency of the allegations of the bill and insist that the averments of the bill do not justify the decree. By a demurrer all material allegations well pleaded are admitted. The same rule may be applied where there is a default. The question then presented by this record is whether, conceding the averments of the bill to be true, they are sufficient to authorize the decree rendered by the court." § 101. Facts admitted by defendant's default. — The de- fendant having been served with process, either personally or constructively, and failing to appear in the cause, or, having appeared, failing to demur, plead or answer to the complain- ant's bill of complaint, is held to " confess " or admit the facts that are well pleaded in the bill, but not immaterial or imper- tinent matter, and the decree is taken joro confesso. If the allegations in the bill are uncertain and indefinite, but sufficient as a pleading, the complainant should take proofs suf- ficient to make the case more certain; and it may be said that usually the complainant cannot rest entirely upon the allega- tions in the bill, for there are certain facts which of necessity should be shown the court that are not clearly set forth in the bill, and. such facts should be proven before a decree can be entered, In Ward v. Jewett ^ the chancellor said : " The only remain- ing question is, whether the allegations of the bill were suffi- cient to charge the defendant, without further proof. The rule on this subject is this: If the allegations are sufficiently clear and positive to establish a fact without other proof, it need not be adduced; but if they are vague and indefinite, further proof should be given." But it has been held that the decree, where the bill is taken as confessed, cannot be based on anything not alleged in the bill; that the decree j?r(9 co??/essci cannot exceed the limits of the case made by the bill. This admission is upon the theory 1 Walk. Ch. (Mioh.) 45; Williams v. v. Farnsworth, 27 Mioh. 53; Johnson Corwin, Hopk. Ch. Prac. (N. Y.) 534; v. Kelly, 80 Ala. 135; Atkins v. Oovell V. Cole, 16 Mioh. 323; Gris- Faulkner, 11 la. 326; Spears v. Cheat- wold v. Fuller, 33 Mich. 268; McCabe ham, 44 Miss. 64. ' § 101. J PEOCEEDINGS TO A DECEEE PKO CONFESSO. 127 that if the defendant had wished to controvert the truth of any of the allegations of the bill he would have put them in issue by a plea or answer, and, not having done so, he will be precluded from introducing evidence for that purpose. In Henry v. Seager'^ it was held that, the defendant having been given an opportunity to answer the bill, of which he re- fused to avail himself, but allowed the decree j^ro confesso to be taken against him, the chancellor need not have heard any evidence; that the defendant 'will be held, in such case, to have admitted the truth of all the allegations of the bill which were well pleaded, and that the court will look solely to the allegations of the bill to determine the correctness of the de- cree; that the sole question is whether the allegations of the bill are sufficient to justify the decree. In the United States court it is provided by rule : "- " It shall be the duty of the defendant, unless the time shall be other- wise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer or answer to the bill, in the clerk's office, on the rule-day next succeed- ing that of entering his appearance. In default thereof the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken 'pro confesso; and there- upon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty da3's from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be en- titled to process of attachment against the defendant to com- pel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause." And the supreme court has frequently passed upon it.' 180 111. App. 173; Sohoenpflug v. '^U. S. Oh. Rule 18. Ketcham (Tenn., 1898), 53 8. W. 666; 3 Thomson v. Wooster, 114 U. S. Eoby V. Chicago, etc. Co., 94 111. App. 104 In Bank v. Finch, 1 Barb. Ch. 579 63 N. E. 544. (N. Y.) 75, it was held "that a person 128 PEOCEEDINGS TO A DECEEE PEO CONFESSO. [§§ 102, 103. § 102. If defendant is an infant or person under dis- ability. — From what has already been said it will appear that an infant defendant can make no admissions by failure to ap- pear in the cause after service of process, or appearing, by fail- ing to demur, plead or answer, for the court will not allow his default to be entered, but will compel an appearance by guard- ian, who must look after the rights of the infant. And if there is no answer, the court will require proof of the allegations in the bill, for infants are treated as the wards of the court, being under its special protection.' And so it has been held to be a general rule that an infant cannot be prejudiced by the default or admissions of his guardian ad litem, for, notwithstanding the failure of the guardian, the court will protect hira.^ And if the defendant is an idiot, insane, or incompetent person, the court will look after bis interests, and the rule as to admis- sions on account of default in appearing or defending the bill will not apply, but the complainant will be obliged to make proof.' § 103. Bill amended after default.— If the bill of com- plaint is amended in any material particular after an order lyro coiifesso, it will be deemed to be the substitution of a new bill of complaint and all previous decretal orders will be va- cated; the order ^TO confesso will be void and of no effect, and no decree can be based upon it. In Gibson v. Rees * the court say : " It is, however, a rule of chancery practice, that, by filing an amended or supplemental bill, all previous decretal orders are vacated and defendants who purchases property from a de- man t. Railway Co., 13 Utah, 68;. fendant in a foreclosure suit after Stephens v. Van Buren, 1 Paige the bill has been taken as confessed (N. Y.), 479; Daingerfield v. Smith, against him, takes such property 83 Va. 81; Peck v. Adsit, 98Mich. 639; subject to all the rights of the com- Chandler v. McKinney, 6 Mich. 219; plainant, and is bound by the ad- Ralston v. Lahee, 8 Iowa, 17; Price v. mission made by such defendant in Crone, 44 Misa 571; Johnston v, suffering the bill to be taken as con- Johnston, 138 III. 385. fessed against him." 3 Q'Hara v. MacConnell, 93 U. S. 1 Long V. Mulford, 17 Ohio St. 485; 151. Milly V. Harrison, 9 Coldw. (Tenn.) < 50 111. 406; Weightman v. Pow- 171. ell, 3 De Gex & Smale, 570; O'Calla- 2 Moore v. Woodall, 40 Ark. 43; ghan v. Blake, 9 Irish Rep. 230; Lyn- Turner v. Jenkins, 79 111. 238; Chip- don v. Lyndon, 6S 111. 43. § 104.J PROCKEDINGS TO A DKCEEE PRO CONFESSO. 129 may answer the original and amended or supplemental bill. Such an amended or supplemental bill is held to make a new case and to authorize it to proceed as though a decree jpro confesso had not been rendered." In Bank v. Finch ' the court say : " Where an original bill is taken as confessed and an amended bill is subsequently filed making other persons parties, the ovA%v pro confesso is thereby opened." If the amendment, however, is merely nominal, and in no way introduces new or dififererft allegations as to the title of the plaintiff, to the relief sought, or as to the relief itself in its substance or form, it has been held that it would not render a subsequent decree irregular or void. And where for want of appearance of the defendant, the bill was taken as confessed and was afterwards amended by stating the resi- dence of the defendant and others residing in the district, it was held that such an amendment was merely formal and not of sufficient importance to affect a decree based upon it.' § 104. Opening or setting aside the default. — The prime and paramount object of a court of equity is to do equal and exact justice and to arrive at a decree in the case that is in every particular equitable. To this end the court will at every stage of its proceedings extend its indulgence whenever it is conducive in effecting justice. The court will therefore extend 1 1 Barb. Ch. (N. Y.) 75; Nelson v. was sought, nor the relief itself, in Eaton, 66 Fed. 376. its substance or form, we think it ^ In Clason v. Corley, 5 Sandf. (N. may be justly regarded as merely Y.) 454, 466, the court say: " But it formal. As the facts correspond is contended that, by the amendment witli the amendment, it worked no of the bill, his pi-ior default in not prejudice to the plaintiff when made, answering was opened and super- nor does it furnish to him. now, any seded, and that as the amendment reasonable ground of complaint, was made without notice, and no There may have been some irregular- copy of the amended bill was served ity in the proceedings, which the upon him, all the subsequent proceed- court in which they were had, upon ings, as against him, must be deemed application, might have corrected, irregular and void. To this conclu- but there is no irregularity that sion, however, we cannot assent, would justify us in holding the de- Although the amendment of the bill cree and the sale under it to be was proper, and perhaps necessary wholly void. We think, on the con- to show the jurisdiction of the court, trary, that they have given a title yet as it neither altered the title of to the defendant which the plaintiff the complainant to the relief that is not at liberty to impeach." 9 130 PEOCEEDINGS TO A DECREE PKO CONFESSO. [§§ 105, 106. leniency to defendants who have failed to appear and answer when in its discretion it can find any sufficient excuse for the omission upon which the default rests. There is no positive or settled rule upon the subject; the interference of the court to relieve the defaulted party rests upon the sound discretion of the court after considering the facts and circumstances of the case.^ The opinion of Lord Chancellor Thurlow in a very early English case, Williams v. Thompson^ very clearly an- nounces the rule existing at that time. The chancellor said: "Wherever an order is made to take a \A\\. pro confesso, if the defendant comes in upon any reasonable ground of indulgence, and pays costs, the court Avill attend to his application, if the delay has not been extravagantly long; and where it has been so, the mere gratuitously putting in an answer is not sufficient to overrule the order," § 105. When decree lias been taken upon an order pro confesso. — The court will not so readily extend its indulgence, however, to a defendant who has permitted a decree to be taken against him on default; the laches is presumably greater, and then the facts of the case have been considered and a de- cree has been given upon them. And so it follows, the court having considered the facts in the case and the defendant having been guilty of laches in allowing the case to proceed through all its stages upon his default, the showing required to set aside the default will be very much greater, for in the granting of such an order the court not only excuses the laches upon the part of the defendant, but is called upon to set aside the decree which has been granted in the case based ' upon the facts adduced; because of this the defendant will be required to show some other and material facts which were not considered by the court, and which, if they had been proven, would have changed the findings and decree already entered. § 106. The procedure for setting aside the order pro con- fesso. — The defaulting party must move the court by petition filed in the court and dulj'- served upon the opposite party, or his solicitor, setting up the commencement of the cause, the object of it, and generally the substance of the case and the relief 1 Carter v. Torrance, 1 1 Ga. 65i. ? 3 Brown's Oh. Rep. 280. § 106.] PROCEEDINGS TO A DECEEE PEO CONFESSO. 131 prayed for, the reasons for the entering of the default, and any excuse for allowing the default to be so entered, praying that the order jyro confesso and decree, if one has been granted, be set aside and he be permitted to appear and answer the bill of com- plaint. This petition should be accompanied by affidavits fully proving the facts upon which the petition is based, and it is the better practice to accompany the petition and affidavits with the answer to the bill of complaint which the defendant pro- poses to file in the cause, ail of which — the petition, a copy of the affidavits, and a copy of the proposed answer — should be served upon the complainant's solicitor, with a notice of the hearing of the same, of at least four days before the day fixed. The tendering of the answer with the petition is very impor- tant, for the court is thus made cognizant of the defense pro- posed by the defendant and can judge whether it is material and effective, and whether the defendant ought in equity to be allowed to defend. And where the court has found and en- tered a final decree upon an order pro confesso, it will, as a general rule, refuse to set it aside and allow the defendant to interpose his defense until he has exhibited the answer be pro- poses to file in the cause, that the court may judge of its suffi- ciency and the equity of his defense. In Wells V. Oruger^ the court say: "It is not a matter of course to set aside an order to take the bill as confessed, upon a simple affidavit of merits, even before a decree; but the court may impose such terms as are just and reasonable. And after a final decree is actually entered in the cause, upon the bill taken as confessed, the court, in addition to such equitable terms as may be proper, usually requires the defendant to ex- hibit the sworn answer which he proposes to file, so that the court may be satisfied as to the nature of his defense and the sufficiency of the answer." Where it appeared that the de- fendant had been guilty of laches, though claimed to be ex- cused for the reason that he hoped to settle the case, the court refused to set aside the default and decreQ and allow the de- fendant to answer; the court remarking that it was apparent 15 Paige (N. Y.), 163; State v. 53 S. W. 1102; Eldred v. American, Murphy, 101 Tenn. 515, 53 S. W. 736; etc. Co., 103 Fed. 209; New England, Kelly V. Eoane Iron Co. (Tenn., 1900), etc. Co. v. Davis, 132 Ala. 555. 132 PEOCEEDINGS TO A DECREE PEO CONFESSO. [§ 106. from the facts that the defendant was guilty of laches, and the decree should in no event be opened upon any technical ground unless a grave injustice to the defendant.^ ' Wilkinson v. Kneeland, 125 Mich. 261, 7 Detroit Legal News, 499, 84 N. W. 142. United States Equity Rule 19 provides: "When the bill is taken pro confesso, the court may proceed to a decree at any time after the ex- piration of thirty days from and after the entry of the order to take the bill 2}^o confesso, and siioh decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affi- davit of the defendant. And no such motion shall be granted unless upon the payment of the cost of the plaint- iff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the de- fendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." And where the answer filed with the petition to set aside a decre 2}f'o con- fesso did not show a clear and cogent defense to the action, the court re- fused to set aside the decree and open the case. Kelly v. Iron Co. (Tenn. Ch. App., 1899), 53 S. W. 1103. OHAPTEE YIII. DEFENSES IN EQUITY. § 107. The several kinds of defenses. I. Demurrer, 108. The nature of the demurrer. 109. A speaking demurrer. 110. Admissions by the demurrer. 111. Extent of admissions. 112. Kinds of demurrer: (1) Gen- eral; (2) Special. (1) General demurrer. First 113. Demurrer for want of juris- diction. Second. 114. For misjoinder of causes of action — Multifariousness. Third. 115. For defects as to parties — (a) Misjoinder — Non-join- der. 116. (b) Demurrer because of inca- pacity of parties. Fourth. 117. For defects in other allega- tions or want of material allegations. 118. The demurrer may be to the discovery sought as well as to the relief prayed for. 119. Reasons for demurring to bill praying relief applicable when bill is for discovery. 130. When bill for relief and dis- covery, defendant may de- mur to the relief, or to the discovery, or to both. 131. The form of the general de- murrer. § 133. (3) Special demurrer. 133. Demurrer ore teiiiis. 124. Joint demurrer. 135. When may the demurrer be filed. 126. The extent of the demurrer. 127. Demurrers to billsnot original. 138. Bringing the demurrer to a hearing. 139. The hearing of the demurrer. 130. The judgment or decree upon demurrer. 131. Denmrrer overruled by plea or answer. 182. The effect of failing to demur. II. Defense by Plea. 133. The plea. 134. The plea should contain but one defense. 13,^. The plea differs from a de- murrer. 136. The plea differs from an an- swer. 137. The extent of the plea, 138. Necessary averments. 139. A division of pleas based upon facts alleged. (a) Pure pleas. (b) Negative pleas, or pleas not pure. (c) Anomalous pleas. 140. Admissions by the plea. 141. The plea overruled by answer. 143. Pleas to the relief. First. Pleas in Abatement. 143. Pleas in abatement defined and classified. 144. (a.) Pleas to the jurisdiction. 145. (b) Pleas to the person, 146. (c) Pleas to the bill. 134 DEFENSES IN EQUITY. 150. 151. 153. 153. Second. Pleas in Bar. § 147. Nature and definition. 148. Pleas in bar are of three kinds. First. Pleas Founded Upon Some Bar Created by Statute. 149. Pleas are divided, (a) Pleas of the statute of lim- itation. Laches. Where the case falls within the exceptions to the stat- ute or there is reasonable excuse for tlie delay. Statute of limitations in cases of trust. 154. Constructive trusts. 155. (b) Pleas of the statute of frauds. 156. (o) Pleas founded upon any statute, private or pub- lic. 157. The form of pleading the sev- eral statutes. Second. Pleas in Bar Founded Upon Some Blatters of Record. 158. When may be interposed. 159. Where the bill alleges fraud in obtaining the former de- cree or judgment. 160. Judgments or decrees, foreign or domestic, legal or equi- table. Third. Pleas Founded on Matter in Pais. 161. Plea. 16?. (1) A plea founded upon a re- lease. 163. (2) A plea founded upon a stated account. 164. Substance of the plea of ac- count stated. (3) Plea of a settled account. (4) A plea of an award. (5) A plea of purchase for a valuable consideration without notice of equities. Persons affected by notice may have the benefit of the want of notice by interme- diate parties. 165. 166. 167. 168. 169. (6) A plea of title in the de- fendant. 170. Pleas to the discovery sought. 171. The several grounds of pleas to discovery. (1) Pleas to the jurisdiction, (2) Pleas to the person. (3) Pleas to the bill or frame of the bill. (4) Pleas in bar. The frame of the plea. When the plea must be sup- ported by an answer. The answer in support of the plea no part of the defense. The form of a plea. The plaintiff's reply. 177. Plaintiff may amend his bill after plea. Withdrawing the plea. The hearing. The determination or decree of the court upon the hear- ing. 172. 173. 174. 175. 176. 178. 179. 180. III. The Answer. 181. The answer of the defendant in general. 182. The answer is twofold in its nature and effect. 183. Requisites of the answer. 184. Defenses which may be inter- posed by answer. 185. The answer may be used in conjunction with other de- fenses. 186. Answer may contain several defenses. 187. Discovery. 188. The answer as to matters of discovery must be respon- sive. 189. The answer when there are several defendants. 190. The frame of the answer. 191. Signing and swearing to the answer, 192. The waiver of the sworn an- swer. 193. Compelling an answer. 194. Amendments. § lOT.] DEFENSES IN EQUITY. 135 195. Exceptions to the auswer. 196. (1) Exceptions for insuffi- ciency. 197. Exceptions only allowed when answer under oath is re- quired. 198. When there is an answer to a part of a bill, a plea to a part, or a demurrer to a part. 199. Exceptions to an answer to an amended bill. 200. Failing to file exceptions — Effect of. 201. A demurrer to an answer un- known. 202. (2) Exceptions for scandal and impertinence. 203. Excepting to an answer ac- companying a plea allows the plea. 204. Form of exceptions. 205. Submissions to exceptions. 206. Compelling a better answer. 207. The answer as evidence. 208. The weight of evidence. 209. Admissions in the answer. 210. The answer will not afford affirmative relief, 211. Some exceptions. 212. The cross-bill. 21-3. Necessity and object of cross- bill. 214. The relief sought must be equitable relief. g 215. Parties to the cross-bill. 216. Cross-bill by persons not par- ties to the original suit. 217. The frame of the cross-bill. 218. Substance or body of the bill. 219. The prayer of the bill. 220. Signing and verifying the bill. 231. Filing the bill. 233. Leave to file. 223. Answer in the nature of a cross-bill. 324. Process when necessary. 335. Defenses to the cross-bill. 336. Replication of complainant in cross-bill. 227. The hearing. IV. Disclaimer. 228. The nature of the disclaimer. 229. When it can be interposed. 280. When both an answer and disclaimer may be filed. 231. A disclaimer operates as an estoppel. 233. If the disclaimer is filed on account of mistake or igno- rance. 233. Signing, verifying, filing and serving. 334. The decree in case disclaimer is filed. 235. The costs. 336. A chart of defenses. § 107. The several kinds ofdefenses. — The defendant, hav- ing appeared in the cause and obtained a copy of the bill of complaint, may defend the case made by the complainant in one of four ways : I. He may demur to the bill. II. He may plead. III. He may answer. TV. He may make and file a disclaimer. Y. And where the defendant seeks affirmative relief in the same controversy he may answer and file a cross-bill; or, as provided in some of the states, an answer in the nature of a cross-bill. 136 DEFENSES IN EQUITY. [§ 108. I. Demueekr. § 108. The nature of the demurrer. — A demurrer is a pleading which rests the defense upon the complainant's bill and asks the court for judgment as to whether any further de- fense shall be required. It is derived from the Latin word deniorari and signifies to abide, and so when the defendant in- terposes a demurrer he is said to abide in the law, demoratur in lege; that is to say, " he will go no further until the court has decided whether the other party has shown sufficient matter in point of law to maintain his suit.'" It rests upon the alle- gations of the complainant in his bill of complaint, or upon the lack of material allegations, or both. The defendant by this plea says, admitting all the facts that are well pleaded in the bill of complaint to be true, the court cannot, as matter of law, grant the relief prayed for in the bill; it raises an issue of law and no other questions of fact, except those apparent upon the face of the bill either from allegations there made or want of allegations necessary to be made, can be relied upon. To the complaint alone the court will look upon the hearing, for upon it alone must the decree be based.^ A demurrer, in form and 1 Story, Eq. P)., sec. 441; Coop. Eq. Metier, 3 C. E. Green, 373." Flynn v. PI. 110; 3 Blk. Comtn. 814. Third Nat. Bank, 132 Mich. 64S, 81 2 In Vail's Ex'rs v. Railway Co., 23 N. W. 572. In Verplank et al. v. N. J. Eq. 466, the court say: "The Caines, 1 Johns. Ch. 57, the chancol- general demurrer raises the question lor said: "A demurrer, as Lord whether, upon the bill taken as true, Loughborough observed in the case any matter appears whereon the of Brooke v. Hewitt (3 Ves. Jun. 253), court can make a decree or give the must be founded upon some certain complainants any relief. A demurrer and absolute proposition destructive will lie wherever it is clear that, to the relief sought for; it must be taking the charges in the bill to be founded upon some dry point of law true, the bill would be dismissed at and not on circumstances in which the hearing; but it must be founded a minute variation may incline the on this: that it is an absolute, certain court either to grant, modify, or re- and clear proposition that it would fuse the application. The demurrer be so. Where the demurrer is gen- is, as to this object, clearly bad; and eral to the whole bill and there is the rule seems to be settled that a any part, either as to the relief or demurrer is not like a plea, which the discovery, to which the defend- can be allowed in part; it cannot be ant ought to put in an answer, the separated; and if bad iji part it is demurrer, being entire, must be over- void in toto." Earl of Suffolk v. ruled. 1 Daniell, Ch. PL & Pr. (4th Green, 1 Atk. 449; Huggins v. York ' Am. ed.) 543, 584; Metler's Adm'rs v. Buildings, 3 Atk. 44; Dormer v. For- § 109.] DEFENSES IN EQUITY. 137 ia substance, denies the right of the complainant to have his case considered by the court, admitting that all the allega- tions of the bill, which are properly pleaded, are true.' And so it follows that a demurrer proceeds upon the ground that assuming the facts stated in the bill to be true, the plaintiff is not entitled to the relief he seeks. And for the purpose of the argument it is held that all the matters of fact which are stated in the bill are admitted by the demurrer and cannot be dis- puted upon the argument; such admissions extending to the whole manner and form in which the allegations are stated. § 109. A speaking demurrer. — When the demurrer is de- pendent upon facts not apparent upon the face of the bill it is called a speaking demurrer, and will be overruled;^ but the introduction of immaterial facts — facts which are not neces- sary to support the demurrer which constitutes mere surplus- age — will not vitiate it.' The facts shown by the bill can tesque, 2 Atk. 283, and other author- minute variation between them as ities. In Gallagher v. Roberts, 1 stated by the bill, and those estab- Wash. C. C. 320, Fed. Cas. No. 5,194, lished by the evidence, may either it was said "that the defendant should demur to a bill in equity that contains no ground for relief." John- son V. Roberts, 102 111. 655; Bliss v. Parks, 175 Mass. 539, 56 N. E. 566. In Women's Catholic Order of For- esters V. Haley, 86 III. App. 330, it was held that a defendant by filing a general demurrer admitted the allegations of fact properly pleaded in the bill to be true. 1 Stroup V. Chaloraft, 52 ID. App. 608. If the illegality of a contract is depended upon by the defendant he cannot take advantage of it by demurrer unless the illegality ap- pears upon the face of the bill. Fairbank v. Leary, 40 Wis. 644; Heavenridge v. Mondy, 34 Ind. 35. " A demurrer will lie wherever it is clear that, taking the charges in the bill to be true, the bill would be dis- missed at the hearing; but it must be founded on this: that it is an abso- lute, certain and clear proposition that it would be so; for if it is a case of circumstances in which a incline the court to modify the re- lief or to grant no relief at all, the court, although it sees that the granting the modified relief at the hearing will be attended with con- siderable difficulty, will not support a demurrer." 1 Daniell, Ch. PI. & Pr. (4th ed.) 548. 2 Story, Eq. PI., sec. 448. In Browns- word V. Edwards, 2 Ves. Sen. 243, Lord Hardwicke said: " As this is a question upon the legal title to an estate on the construction of a will, if there was any doubt, I should not determineiton demurrer; butwould, notwithstanding the inclination of my opinion might be in favor of de- fendant, overrule the demurrer with- out prejudice to defendant's insist- ing on the same matters by way of answer; so that it might more fully come before the court at the hear- ing." 3 Daniell, Ch. PI. & Pr. (2d Am. ed.) 657. A demurrer setting out facts which do not appear on the face of the bill is bad as aspeaking demurrer. 138 DEFENSES IN EQUITY. [§ HO. alone be relied upon; when it becomes necessary to exhibit dif- ferent or other facts in order to defend against the bill, a plea or answer and not a demurrer will be required. § 110. Admissions by the demurrer. — While it is a general rule that a demurrer admits all the facts that are well pleaded in the bill of complaint to be true, this rule must be carefully construed. It is well pleaded facts and not conclusions of law, or argument from the pleaded facts, that are admitted.' In Le Baron v. Shepherd,^ wherein the bill of complaint made a general statement bearing upon the general effect of a devise, it was held that a demurrer would not admit the con- struction of the devise to be as claimed by the complainant. The court say : " It is very clear that the general statements in the bill bearing upon the legal effect of the devise are of no importance; they would have been without consequence if the defendant had rested the case on a demurrer, since a de- murrer would not admit the complainant's construction of the will, and statements of the kind in question would not be the subject of an issue of fact." And so where a written instru- ment is set forth in the bill, or attached to it and referred to as a part of it, the court on a demurrer to the bill will not treat an allegation as to its legal effect or construction as true, but will look to the instrument itself, construing it according to Mengel v. Coal & Nav. Co., 24 Pa. Co. Smith v. Reynolds, 9 App. D. C. 861; Ct. Rep. 152; Clarke v. Land Co., 113 Sturbuok v. Loan Co., 51 N. Y. S. 8: Ga. 21, 38 S. E. 328. Gusdorfif v. Schleisner, 85 Md. 360, 'Stow V. Russell, 36 111.18; Newell 37 Atl. 170. Upon the argument V. Bureau Co., 37 111. 253. Does not statementsof conclusions of law may- admit arguments or legal conclu- be disregarded. Dillon v. Barnard, sions. Johnson v. Roberts, 103 111. 31 Wall. (U. S.) 430; Louisville, etc. 655. R. Co. V. Palmes, 109 U. S. 244. Nor 2 21 Mich. 263, 275; 1 Daniell, Ch. PI. are the correctness of allegations in & Pr. 566, 567 ; Games v. Robb, 8 Iowa, a bill as to the construction of a stat- 193; Smith V. Henry Co., ISIowa, 385; ute, or a grant or other document Lea et al. v. Robeson et a!., 12 Gray or official act that complainant in- (Mass.), 280; Craft v. Thompson, 51 sists upon as the foundation of his N. H. 536; Pearson v. Tower, 55 N. H. claim admitted, by a demurrer, for 36; Everett v. Drew, 129 Mass. 150; their construction is always a ques- Jones V. Dow, 137 Mass. 119; Brook v. tion of law for the court. Maese v. Widdicombe, 39 Md. 386; Minnesota, Hermann, 17 App. D. C. 53. Douglas etc. Ry. Co. v. Hiams, 53 Iowa, 501; v. Phenix Ins. Co., 63 Hun (N. Y.), Worley v. Moore, 77 Ind. 567; God- 393; Armatage v. Fisher, 74 Hun dard v. Stockman, 74 Ind. 400; Don- (N. Y.), 167; McCormick v. Riddle, 10 aldson v. Wright, 7 App. D. C. 45; Mont. 470. § no.] DEFENSES IN EQUITY. 139' its legal import. And where a bill was filed praying that the defendants might be declared trustees for the benefit of the complainants of the property held by them under a certain indenture, a copy of which was annexed to the bill of com- plaint to which the defendant demurred, the court, in render- ing its opinion as to the facts admitted by the demurrer, say: '' The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instrument, and the obligations they imposed upon the corporation and the trustees, and the rights they conferred tipon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal infer- ence, conclusions of law upon the construction of the indent- ure, and are open to contention, a copy of the instrument itself being annexed to the bill, and, therefore, before the court for inspection. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is an- nexed, against a construction required by its terms; nor the correctness of the ascription of a purpose to the parties when not justified by the language used." ^ Nor would a demurrer admit, as correct and binding upon the parties, the construc- tion of a statute set up and contended for in the bill of com- plaint, for this would be a question for the court on the hear- ing, and the admission or denials of the parties in the cause would not affect the construction the court would be bound to give it.^ So a mere statement in the bill of complaint that the de- fendant induced the contract or a conveyance by fraudulent representation, or by fraud without alleging facts which con- stitute a legal fraud, would not be admitted upon a demurrer, but would be treated simply as a legal conclusion. And where a bill was filed to restrain defendants from operating a mine,, the allegations in the bill being that the defendants induced 1 Dillon V. Barnard, 31 Wall. (U. S.) C. C), 67 Fed. 980; Park, etc. Bank v. 430, 437. The exhibits filed with the Haley, 3 111. App. 17. bill on demurrer will be read as ^ Maese v. Hermann, 17 App. D. C. part of it. Ulman v. laeger (U. S. 52. 140 DEFENSES IN EQUITY. [§ HI- the complainant's partner to refrain from filing a claim under a fraudulent scheme which amounted to a colorable fraud and breach of trust, it was held that these allegations were mere legal conclusions and were not admitted by a demurrer to a bill.i And in AmUer v. Choteau"^ the court say: "The words 'fraud ' and 'conspiracy ' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another they have :no more effect than other words of unpleasant signification. While in this case the offensive words are used often enough, the facts to which they are applied are not such as to make the defendants answerable to the complainant for the dam- ages and other relief he asks.'" Allegations in the bill which are based upon information and belief are not admitted as facts upon a demurrer.* § 111. Extent of admissions. — The admission of the de- fendant by his demurrer, that all the facts well pleaded in the bill of complaint are true, only extends to the issue raised by the demurrer, for determining the legal sufficiency of the bill. It furnishes the proof upon which the court may base the settlement of the issue of law raised by the demurrer, but goes no further; if the demurrer be withdrawn or overruled, and the defendant is permitted to plead or answer, he is not es- topped by the admissions made by the demurrer; these admis- sions are only for the purposes of the demurrer and its settlement. In Stinson v. Gardiner ' the court say : " It cannot be con- ceded that, by demurring to a bad plea, the plaintiff admitted the facts therein stated as independent facts to be used in the trial of other issues, in this or anv other action. The effect of the demurrers was to admit the facts stated in the pleas for the purpose of testing their sufficiency in law; but the pleas having been adjudged bad, the admissions do not estop the plaintiff, or affect the determination of his case." And in Cro- gan v. Schiele ^ it was held " a demurrer admits the truth of the 1 Lookhart v. Leeds (N. Mex., 1900), * Trimble v. American Sugar Re- 63 Pao. 48. fining Co., 61 N. J. Cli. 340, 48 Atl. 2 107 U. S. 586, 591. 912. 3 Magniac v. Thompson, 3 Wall. Jr. 5 33 Me. 94. ,(U. S. Ct Ct.) 209. 6 53 Conn. 186, 208; Pease v. Phelps, § 112. J DEFENSES IN EQUITY. Ill alleged facts for the sole purpose of testing their legal suffi- cienej. If the demurrer is overruled, and the defendant an- swers over, the admission cannot be usjd as evidence against him. It stands like any other case where the allegations of fact are denied — the facts are determined by the proof, and not by the pleadings." § 112. Kinds of demurrer. — Demurrers are of two kinds: (1) General ; and (2) Special. (1) A general demurrer is an objection to the recovery of the complainant resting upon the facts shown by the bill it- self — facts which are matters of substance rather than mat- ters of form. It has been said that "A general demurrer is one going to- the merits of the case intended to be made by the bill, and when no particular cause is assigned, except a formula required by the practice or rules of the court, that there is no equity in the bill, and is always proper where the bill is defective in sub- stance." ' " A general demurrer challenges the equity of the case made by the bill, and will be overruled if a case for equi- table relief is set out, however imperfectlJ^"^ The causes for demurrer are arranged under three general heads: First. The \vant of jurisdiction in the court in which the bill is filed. (a) That the case made by the bill is not within the class of cases of which a court of equity assumes jurisdiction. (5) That the particular court in which the suit was com- menced has no jurisdiction to try and determine it. Second. For misjoinder of causes of action. Third. For defects as to parties. (a) For misjoinder or non-joinder of parties. (5) Because of incapacity of parties. 10 Conn. 62; Scovill v. Seeley, 14 2 (jreenley v. Hovey, 115 Mich. 504, Conn. 238; Gray v. Finch, 23 Conn. 505; Glidden v. Norvell, 44 Mich. 206; 495. Wilraarth v. Woodcock, 58 Mich. 1 Taylor v. Taylor, 87 Mich. 64, 68. 484; Cochrane v. Adams, 50 Mich. 16.. 142 DEFENSES IN EQUITY. [§ 113. Fourth. For defects in other allegations, or want of material alle- gations. {a) Want of interest in complainant. (5) That defendant is not answerable to complainant. (c) Want of interest in defendant. {d) That complainant is not entitled to the relief prayed for. (e) That the subject-matter is not of suiiicient value. (/) That the whole controversy is not involved in the suit. {g) That the case made is barred by the statute of limita- tions, or by the statutes of frauds. (A) That there is another suit pending for the same subject- matter. This analysis follows very nearly the anal3'^sis of Daniell in his work on Equity Pleading and Practice, and of Story and other writers. First. § 113. Demurrer for want ofjnrisdiction. — It must always be borne in mind that the facts upon which the demurrer rests must be apparent upon the face of the bill of complaint. Want of jurisdiction may appear in one of the following ways: (a) That the case made by the bill is one not within the class of cases of which a court of equity assumes jurisdiction. This was somewhat discussed in aformer chapter of this work.' (5) That the particular court in which the suit was com- menced has no jurisdiction to try and determine it; as, for ex- ample, if commenced in the United States court, and the alle- gations in the bill show that the value of the subject-matter of the controversy is of a less amount than the court will assume jurisdiction over, or that the residence of the parties is within the same state or territory; Avhere jurisdiction depends upon the question of residence, or where a case is commenced in a state court and the amount involved appears by the bill to be less than one hundred dollars, that amount, at least, being re- quired to give the court jurisdiction.- 1 AnU, oh. I. keep v. Hook, 8 Pa. Dist. B. 341. But 2 Stepheusoa v. Davis, 56 Me. 73; where from the general allegations Godfrey v. Terrey, 97 U. S. 171; Ins- of the bill it would be fairly pleaded § Hi.] DEFENSES IN EQUITY. 143 Or because the subject-matter of the suit is withiii the jurisdiction of some other court; as, for example, where there is a full, complete and adequate remedj^atlavv the controversy should be tried and determined in a common-law court, or where the case made by the bill should have been brought in some other court of equity. In most jurisdictions the probate court has exclusive jurisdiction of the settlement of estates of deceased persons, and so a court of equity would not entertain and determine a suit involving the. validity of a will. And where the subject-matter is within the jurisdiction of the court of admiralty or bankruptc}', an equity court would refuse to entertain jurisdiction of the cause. Seco)id. § 114. For misjoinder of causes of action — Multifarious- ness. — What is multifariousness in a bill of complaint has al- readj' been discussed.^ The defect of misjoinder of causes of action must necessarily appear upon the face of the bill; the court cannot, in determining this question, look to another pleading or to the proofs.^ As we have seen, the complainant will not be permitted to unite several claims or demands which are distinct from and have no dependence upon each other; he cannot in one bill bring into question and have adjudicated distinct and discord- ant interests. jS'o abstract fixed rule can be stated as to what would constitute multifariousness in this respect, but the courts have so thoroughly discussed and adjudicated the ques- tion that it is not difficult to discern when the bill is defective for misjoinder of causes of action.' Whether the bill is multi- that the amount in controversy tion that there was a complete rem- would exceed one hundred dollars, edy at law. though not directly alleged, the court ' Ante, § 39. will take jurisdiction. Mastenbrook 2 jjalstead v. Shepard, 23 Ala. 558. V. Alger, 110 Mich. 414. In First SRyan v, Shawneetown, 14 111. (4 Cong. Society, etc. v. Trustees, etc., Peck), 20; Taylor v. King, 32 Mich. 23 Pick. (Mass.) 148, it was held that 42, where the court affirmed a decree where the defendant had answered dismissing the bill as proper, saying: the bill and submitted to the juris- "The bill attempted to bring into diction of the court, the court hav- question and have adjudicated dis- ingjurisdictionofthesubject-matter, tinct and discordant Interests, and it was too late to interpose an objec- was liable to complaint for multi- 144 DEFENSES IN EQUITY. [§ H^- farious is generally a question to be determined upon the facts, and circumstances of the particular case.' It should not be concluded, however, that several causes of action cannot be united in the same bill of complaint and not be demurrable, for, as has already been noticed, it is not so much the question- of several causes being united as whether the bill has but one object. Where several causes or subjects are united in the same bill, having but a single purpose or object, and the relief prayed for and granted can be covered by one decree, all the subjects and causes for complaint being harmonious with each other, the bill is not subject to demurrer for misjoinder of causes of action or multifariousness. It is, as has been said,, where the complainant demands several distinct matters of a different nature of several defendants, which are wholly un- connected, or which are discordant and inconsistent, and upon which to grant relief would necessitate the finding of different decrees, that there is clearly a misjoinder of causes of action.^- Where a bill was filed alleging that the complainant and some of the defendants were induced by fraudulent represen- tations to convey certain water rights, alleging that certain-, papers were executed by owners of the land through which the stream flowed, and others by mortgagees of the lands, the bill praying to reform these conveyances in accordance with an. alleged original understanding, it was held demurrable for mis- joinder of causes of action for the reason that the defendant charged with the fraud is entitled to contest with each party the particular fraud claimed to be practiced upon him, although it was alleged that in fact the same fraud was practiced as to- each.' " There appears to be no positive or inflexible rule as to- fariousness."' Sherlock v. Village of Marshall v. Means, 12 Ga. 61, 56 Am. Winnetka, 59 111. 389. Deo. 444. Separate contracts made 1 Eastman v. Savings Bank, 58 N. with the same individual respecting H. 421. Where the bill sets up dis- the same subject-matter may be tinct and separate causes of com- combined in one bill. Lynch v. plaint which destroy each other and Johnson, 13 Ky. (2 Littell), 98. seek different relief inconsistent ^ Wheeler v. Gleason, 70 N. Y. S. with each other, it may be said to 381 ; "Van Hise v. Van Hise, 61 N. J. be multifarious. Swayze v. Swayze, Ch. 37, 47 Atl. 803; United States v. 9 N. J. Eq. 273. Beebe, 180 U. a 343, 45 Law. Ed.. 2 Chapman v. Chunn, 5 Ala. 397; 563. § 115. J DEFENSES IN EQUITY. 145 what, in the sense of courts of equity, shall constitute multi- fariousness in a bill, but each case must in a great measure be governed b}' its own circumstances, and much must be left to the discretion of the court. Nevertheless, when it clearly ex- ists, a demurrer will be sustained." ' And it has been said that " the substance of the rules on the subject of multifarious- ness appears to be, that each case is to be governed by its own circumstances, and must be left in a great measure to the sound discretion of the court." ^ Third. § 115. For defects as to parties — (a) Misjoinder — Non- joinder. — Quite akin to multifariousness or misjoinder of causes of action is the defect in a bill arising from the mis- joinder or non-joinder of parties complainant or defendant. Parties complainant, in order to be properly joined in a bill of complainant as such, should have similar interests; should seek the same object; be able to support their conten- tion by substantially similar evidence, and be relieved by the same decree; for if two or more complainants joined in the same bill have separate interests requiring separate and differ- ent relief and different and dissimilar lines of evidence, and a 1 Kennebec, etc. By. Co. v. Port- Va. 434, 34 S. E. 60 ; Hilbish'sExeout- land, etc. Ry. Co., 54 Me. 178, 182. ois, 92 Va. 333, 33 S. E. 751; Staude 2 1 Danl. Ch. Pi. & Pr. 334, note 2; v. Keck, 92 Va. 544, 24 S. E. 337, and Densmore v. Savage, 110 Mich. 37, other cases. A bill filed to quiet title 30: Torrent v. Hamilton, 95 Mich, of lauds and at the same time to re- 159; Kelly v. Boettcher, 89 C. C. App. form a deed thereto is not multifari- 14, 85 Fed. 55; Curran v. Campion, ous; the reforming of the deed is 39 C. C. App. 36, 85 Fed. 67; Halsey held to be germane to the settlement V. Goddard (U. S. C. C, 1898), 86 Fed. of the title. Reddick v. Long, 134 3.1 ; Cutter v. Iowa Water Co. (U. S. Ala. 360, 37 S. 403; Whitehead v. C. C, 1899), 96 Fed. 777. A bill pray- Sweet, 136 Cal. 67. 58 Pao. 376; Mock ing for partition of real estate held v. City of Santa Rosa, 136 Cal. 330, by devisees, and at the same time for 58 Pao. 836. A bill filed to enforce distribution of personal estate in the two series of bonds owned by com- hands of th e executor, is multifarious, plainant and issued by the same city Aylesworth V. Crocker, 31 R I.- 436, to cover the cost of the same improve- 44 Atl. 308. Where a bill claims an ment, the only difference being the accounting by an assignee, and there payment of one series is provided are several other rights claimed, but for by a general ta:;?, and the other none of a different nature, the bill by special assessment, was held not was held to be not multifarious, to be multifarious. Burlington Sav. Farrar v. Powell, 75 Vt. 747, 44 Atl. Bank v. City of Clinton (Iowa), 106 344. And see Dillard v. Dillard, 97 Fed. 369. 10 14:6 DEFENSES IN EQUITY. [§ US- different decree to settle the interests of each, all this appear- ing upon the face of the bill, would undoubtedly render it mul- tifarious and subject to a demurrer because of misjoinder of complainants; if, however, the complainants thus joined in a bill seek relief involving the same questions, requiring the same evidence and leading to the same decree, the bill would not be subject to this objection.^ Where various owners and tenants of separate properties located in the vicinity of a mill joined in a bill of complaint to restrain the operation of the mill in the night time, all the parties claiming relief under the same state of facts and the remedy sought being identical, the fact that each party could have filed a separate bill and made a complete case was held not sufficient to show that there was a misjoinder of parties complainant.' The object of the court of equity to do complete justice is always to be emphasized; and so where, because of the mis- joinder or non-joinder of parties, whether complainants or de- fendants, the court cannot make a decree that will settle the rights of all the parties, so that the performance of the decree of the court in the particular case will be entirely safe to those who are compelled to obey it, and prevent future litigation; this being apparent upon the face of the bill will render it sub- ject to demurrer.' But it has been held that a bill cannot be held defective on demurrer for these reasons: where it does not appear upon the face of it that the parties that are not joined are necessary to the determination of the rights of the complainant, or that there are other persons whose interests would be injuriously affected by the granting of the relief sought.* " If the misjoinder is of parties as plaintiffs, all the 1 Home Ins. Co. v. Virginia, etc. terests. Lonsdale Co. v. Woonsocket, Co., 109 Fed. 681; Bradley v. Bradley, 31 R. I. 498, 44 Atl. 939; Proprietors 65 N. Y. Sup. 514. of Mills, etc. v. Braintree, etc. Co., ^Whipple V. Guile, 23 E. I. 576, 48 149 Mass. 478, 31 N. E. 761; Sullivan Atl. 93.% Persons having a common v. Phillips, 110 Ind. 330, 11 N. E. 300. interest in preventing the diversion 3 1 Daniell, Ch. PI. & Pr. 558, note of the water of a stream from their 7; Story, Eq. PI. 543. mill privileges were permitted to * Farson v. Sioux City (U. S. C. C, join in a bill for an injunction, al- 1901), 106 Fed. 278. In Shingleur v. though they claimed under distinct Swift, 110 G-a. 891, 36 S. E. 2'J3, it was titles and possessed independent in- held that a bill alleging separate and §§ 116, IIY.] DEFENSES IN EQUITY. 147 defendants may demur; if the misjoinder is of parties as de- fendants, those only can demur who are improperly joined." This rule appears to be general.' § 116. (b) Demurrer because of the incapacity of parties. "Where upon the face of the bill it appears that the complain- ant has not the legal capacity to sue — that he is an infant, a lunatic, or non compos mentis, or laboring under other legal disability, — the bill would be subject to demurrer, because the decree in such case would not settle the controversy and other litigation might ensue. As, for example, where a foreign ad- ministrator or executor should bring suit, not having been appointed within the jurisdiction to represent the estate, or where a voluntary association brings suit in an assumed name, not being legally incorporated, the bill would be subject to a demurrer.' Fourth. § 117. For defects in other allegations or want of material allegations. — It would be very difBcult to enumerate, by way of example or otherwise, the defective allegations or cases for want of material allegations which would subject tbe bill to a distinct causes of action against dif- " Tliedefect of the title of tlieplaint- ferent defendants was dennurrable iff to tlie character in whicli tie sues: because of misjoinder of parties, It has been sometimes considered there being no allegations showing that this objection is the proper sub- joint liability, the charges of fraud ject of a plea, and not of a demurrer, being general, without any state- But there seems no ground to sustain ment of fact on which said charges the proposition, where the objection were based. But in Baily v. Tilling- positively appears (which can rarely hast, 40 C. C. A. 93, 99 Fed. 801, it be the case) upon the face of the bill, was held that it was not essential Thus, for example, if it should appear that there should be a community upon the face of the bill that the of interests between the defendants plaintiff sued as administrator in in order to maintain a suit in equity virtue of the grant of administration against them; if there was a com- in a foreign country, the objection raon qnestion of law arising upon might be taken by demurrer; for it similar facts involved between is clear that the plaintiff has no plaintiffs and defendants, equity right, under that administration, to would take jurisdiction on the sue in our courts.'' Story, Eq. PI., ground of preventing a multiplicity sec. 496; Coop. Eq. Pi. 164; Mitf. Eq. of suits. PI., by Jeremy, lo5; Wiles v. Trustees, 1 Story, Eq. PI., sec. 544; Sweet v. etc., 63 Ind. 206; German Reformed Converse, 88 Mich. 1; Whitbeok v. Church v. Von Puechelstein, 27 N. J. Edgar, 2 Barb. Ch. 106. Eq. 30. '^ Ante, §g 53, 54, oS and cases cited. 148 DEFENSES IN EQUITY. [§ H'^- general demurrer. The analysis already given and usually adopted by writers upon this subject will generally compass the causes for demurrer under this head. (a) Want of interest m. complainant. A want of interest in the complainant who commences the suit would clearly show that he has no right, legally or equitably, to recover in the suit commenced by the filing of his bill. One of the requisites of a bill of complaint, as we have seen, is that the complainant must show an interest in the subject-matter and the relief sought, in himself, for if he had no interest the court could make no decree.' (b) That defendant is not answerable to complainant. If the defendant is not answerable to the complainant, certainly he should not be subjected to answer the complainant's bill, and this appearing upon the face of the bill would sustain a de- murrer.^ (c) Want of interest in defendant. And so if the case made shows no interest in the defendant, the court could not be called upon to grant the relief prayed for in the bill, for there would be no liability of the defendant shown, and for this reason the bill would be subject to demurrer. (d) That complainant is not entitled to the relief prayed for. The bill must show that the complainant is entitled to the relief he seeks, otherwise his bill will be clearly devoid of equity and demurrable for that reason, for as matter of law the complainant would not be entitled to a decree.' (e) T'hat the subject-matter is not of sufficient value. In most of the states it is required by statute that a court of equity will not assume jurisdiction of a case where there is less than one hundred dollars involved, and if the amount is small and un- important, or frivolous, would consider it beneath its dignity to hear, try and determine the case made by the bill. (f) That the whole controversy is not involved in the suit. As has been often repeated, equity delights in settling the whole controversy between the parties; this is one of the reasons which gives to the court favor and fixes its character '^ Ante, § 51; Smith v. Brittenham, '(jj-genley v. Hovey, 115 Mich. 504r 109 111. 540. Burk v. Machine, etc. Co., 98 Mich. 2^nfe, §56. 614. § 117.] DEFENSES IN EQUITY. 149 as a court of equity, and so it has ever been held that the complainant will not be allowed to split his cause of action. In Xeivland v. Rogers^ the court say: "The court of chan- cery abhors a useless multiplication of suits between the same parties, and endeavors to prevent it as far as practicable. For this reason the court will not allow separate bills to be filed for different parts of the same account between the same parties; although the account relates to transactions which are not necessarily connected with each other. Therefore, to sustain the objection that several distinct matters and causes of complaint between the same parties are improperly joined in the same bill, such matters must be of such different natures, or the forms of proceeding in relation to such several matters must be so different, that it would be improper, or very incon- venient, to litigate the same in one suit. For there is no such general principle in the court of chancery that distinct mat- ters between the same parties, and who sue or are sued in the same right or capacity, cannot properly be united in the same bill. On the contrary, there are several cases in which it has been held that matters of the same nature, and between the same parties, although arising out of distinct transactions, may be joined in the same suit." (g) That the case made is hatred hy the statute of limitations or statute of frauds. This is peculiarly applicable to that class of cases of which equity assumes concurrent jurisdiction, for in such case the maxim that " equity follows the law " is espe- cially applicable. The court of equity will not place upon the defendant a greater burden because the suit was brought in equity rather than in a court of law. And so in that class of cases where the statute of limitations or the statute of frauds would be a complete defense had the case been brought in the law court, the defendant may make the defense with equal benefit to him if the case is brought in equity; but laches, un- warrantable delay, or negligence in the bringing of the suit, even if the case is one over which the equity court has exclu- sive jurisdiction, would be a defense; but to what extent and under what circumstances this may be invoked as a defense is a question resting somewhat in the discretion of the court, and 1 3 Barb. Ch. 435. 150 DEFENSES IN EQUITY. [§ H'- can scarcely be said to be sufficiently certain to render tiie bill of complaint subject to demurrer. Where the case made by the bill is based upon an agreement which the statute of frauds requires to be in writing, but which appears from the face of the bill to be a parol agreement only, and no sufficient grounds are allesred to take it out of the statute of frauds, the bill is subject to a demurrer; the demurrer admitting the ex- istence of the agreement, but insisting that, because of the statute of frauds, it cannot be enforced and the relief granted that is prayed for in the bill. In Somerhy v. Buntin ^ the court held that a demurrer would lie where upon the face of the bill it appeared that the contract which the complainant sought to have enforced was not to be performed within one year and was oral. The question was somewhat considered and discussed by Mr. Justice Grier in Badger v. Badger.- The court say : " Xow, the principles upon which courts of equity act in such cases are established by cases and authorities too numerous for ref- erence. The following abstract, quoted in the words used in various decisions, will suffice for the purposes of this decision: "Courts of equity, in cases of concurrent jurisdiction, ' con- sider themselves bound by the statutes of limitation which govern courts of law in like cases, and this rather in obedience to the statutes than by analogy. In many other cases they act upon the analogy of the like limitation at law. But there is a defense peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limitation governs the case. In such cases, courts of equity 1 118 Mass. 279. 14 N. E, 741; Bird's Adm'r v. Inslee's 2 2 Wall. (U. S.) 87, 94; Godden v. Ex'rs, 23 N. J. Eq. 363; Olden v. Kimmell, 99 U. S. 202, 210; Wood v. Hubbard, 34 N. J. Eq. 85; M'Dovvl v. Carpenter, 101 "U. S. 135; New Eng- Charles, 6 John. Ch. 132. But in land Ry. Co. v. Hyde, 41 C. C. A. 404, Town of Mt. Morris v. King, 28 N. Y. 408, 101 Fed. 397, 401; Landsdale v. S. 281, 77 Hun (N. Y.), 18, the court Smith, 106 U. S. 391; Thompson v. held that the mere fact that the Parker, 68 Ala. 387; Faulkner v. plaintiff's claim appeared by the bill Thompson, 14 Ark. 479; Caldwell v. to be stale would not be sulBcient to Montgomery, 8 Ga. 106; Coryell v. sustain a demurrer, but that the Klehra, 157 111. 462, 41 N. E. 864; Ker- question must be determined on trial foot V. Billings, 160 111. 563, 43 N. E. of the issue of fact. Sprague v. 804; Meyer v. Saul, 82 Md. 459, 33 Rhodes, 4 R. I. 301. Atl. 589; Fogg V. Price, 145 Mass. 513, § lis.] DEFENSES IN EQUITY. 151 act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. Long acqui- escence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be ex- cused but by showing some actual hindrance or impediment, caused by the fraud or concealment of the parties in possession, which will appeal to the conscience of the chancellor. In Ahrend v. Odiorne^ the bill filed was for specific perform- ance of an oral contract to convey lands. The court say: " But if that agreement was oral it was within the statute of frauds, and could not be enforced either at law or in equity. The allegation relating to it — which is merely that the de- fendants on a certain day, and repeatedly since, notified the plaintiff that they would, if he requested it, reconvey the land to him — clearly implies that the agreement was oral; and this fact, thus appearing upon the face of the bill, may be taken advantage of by demurrer." (h) That there is another suit ]pending for the saifne subject- matter. If it appears from the allegations of the bill that there is another suit pending for the same subject-matter, either in the same or some other court, and substantial!}^ be- tween the same parties, it will be good ground for demurrer. It has been held that it need not appear that the suit be be- tween the same identical parties, if it is of the same interest and traceable to the same parties, and the pending suit would fully settle the controversy between the litigants; that is to say, if it appears upon the face of the bill that the plaintiff would obtain the same relief in the pending suit that he seeks to obtain in the bill filed and demurred to.^ § 118. The demurrer may be to the discovery sought as well as to the relief prayed for. — Thus far we have discussed the demurrer as applied to the special relief prayed for in the 1 118 Mass. 261, 268; Glass v. Hul- land, 11 N. J. Eq. 370; Cloud v. Greas- bert, 102 Mass. 24; WalUer v. Locke, ley, 125 111. 313, 17 N. E. 826; Eveland 5 Cush. (Mass.) 90; Slack v. Black, v. Stephenson, 45 Mich. 394; Clifford 109 Mass. 496; Fainhani V. Clements, v. Heald, 141 Mass. 322; Harper v. 51 Me. 426; Randall v. Howard, 2 Campbell, 102 Ala. 342. Black (U. S.), 585; Cozine v. Graham, ^ i Danl. Ch. PI. & Pr. 561, par. 11. 2 Paige Ch. 177; Van Dyne v. Vree- 152 DEFENSES IN EQUITY. [§ 119- bill of complaint and not to the discovery sought. The bill of complaint may be filed for discovery of facts alleged to be within the knowledge of the defendant as well as for special relief. Later statutes, as we have already seen, in most of the states, have to a certain extent rendered bills purely for dis- covery unnecessary; bills, however, may be filed seeking for discovery, and usually the ordinary chancery bill, in that it seeks for an answer to all the matters alleged and charged in the bill, is a bill as well for discovery as for special relief. A general demurrer may be interposed to that part of the bill seeking discovery, or to that part seeking special relief, or to both. The reasons for granting to the defendant the right to demur to that portion of the bill asking for discover}'^ are ob- vious and rest upon the law of the individual rights- of the complainant as well as upon his duty to protect the rights of others where he has been intrusted with such rights in a way that a duty arises to protect them; as, for example, where to discover the facts prayed for would be a breach of professional confidence. Then, too, the discovery sought may be of such a nature that it cannot be said to affect the case made by the bill. Stoiy has classified the reasons for objections by demurrer to the particular discoveries sought for in the bill as follows: (1) That the answer may subject the defendant to penal con- sequences; (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 the matter which is sought to be discovered appertains to the title of the defendant and not to that of the plaintiflF.' Mr. Daniell, in his work on Equity Pleading and Practice, has substantially the same classification.^ § 119. Reasons for (demurring to bill praying relief appli- cable when bill is for discovery. — Upon an examination of the reasons, discussed in former sections, which will sustain a demurrer to a bill praying for relief, it will be discovered that they are applicable as well to bills seeking discovery, for these reasons would apply to cases in equity generally; as, for ex- ample, a bill which does not allege an interest in the complain- ant, even though the prayer of the bill is for discovery, would be subject to demurrer for the reason that the facts asked for 1 Story, Eq. PI., seo. 547. 2 1 Danl. Ch. PI. & Pr. 563. f 120.] DEFENSES IN EQUITY. 153 are immaterial; and there would be no legal reason for re- quiring the discovery of the facts prayed for; and so wherever there are valid reasons upon the face of the bill which would render it subject to demurrer, as a general rule the demurrer would be sustained, even though the bill was one for discovery. § 120. AVIieii bill for relief and discovery, defendant may demur to the relief, or to the discovery, or to both.— The bill filed may be defective so far as it relates to the obtaining of the special relief prayed for and be subject to a demurrer for that reason, or, it may be that it is not subject to demurrer because ■of the relief sought, but because of the discovery prayed for; as, for example, where it appears by the bill that if the defend- ant should answer the interrogatories contained in the bill he would subject himself to criminal prosecution, or to a penalty or forfeiture, or that he would divulge facts that were given him because of confidential relations, or for other reasons al- ready mentioned. And so the defendant may demur to the wholebill, both as to the relief sought and the discovery prayed for, or he may demur to the relief or to the discovery, or he may answer to the discovery and demur to the relief, or he may answer to the relief and demur to the discovery. In the case of Brownell v. Curtis ' this was fully and clearly discussed by the chancellor in the following language: " It ap- pears to be settled that, upon a bill for discovery and relief, the defendant may answer and make the discovery sought and demur to the relief only. And there is also a class of cases in which the defendant may refuse to make a discovery as to particular charges contained in the bill, although a demurrer 1 10 Paige Ch. (N. Y.) 310, 213. In have availed himself of it in this Burpee v. Smith, Walk. Ch. (Mich.) way, should have demurred to the ii27, it veas held that if the defend- discovery only, and not to both dis- ant should demur to both discovery covery and relief; for although oom- and relief, when he should have de- plainant may not be entitled to a murred only to discovery, the de- discovery of the whole case from murrer would be overruled. The Smith, yet, he will be entitled to re- court say: " Another ground of de- lief against him, if he can make out murrer is, that the bill shows the his case by other evidence. The de- note was given to compound a felony, murrershould also have been limited and that equity will not compel a to such parts of the bill as implicate defendant to discover on oath a fact, Smith in the supposed crime." Ed- which, if true, will subject him to a wards v. Hulbert, Walk. Ch. (Mich.) criminal prosecution. This objection 54. can apply to Smith only; and he, to 154 DEFENSES IN EQUITY. [§ 120. could not have been sustained as to the relief which the com- plainant intends to found upon those charges. Those, how- ever, are cases in which the discovery asked for would tend to criminate the defendant, or subject him to a penalty or for- feiture, or would be a breach of confidence which some prin- ciple of public policy does not permit; and where the com- plainant may be entitled to the relief sought upon the matters charged in the bill, although the defendant is not bound to make a discovery to aid in establishing the facts." And so it may be said to be a general rule that a demurrer may be to the whole bill or to a part of the bill; but where a demurrer is only to a part of the bill it should be accompanied by an an- swer or a plea to what remains. The defendant may demur to part, plead to a part and answer to the residue,' provided, always, the answer and the demurrer, if both are invoked, be not inconsistent with each other; for in. this connection it must be remembered that a general demurrer admits all the facts alleged in that portion of the bill to which demurrer is filed, to be true, and to traverse these facts with any other plea or answer at the same time would be inconsistent.- 1 U. S. Eq. Rule 32; Int. Lumbering the defendants have not, in this in- Co. V. Maurer, 44 Fed. 618; Danl. Ch. stance, brought themselves within PI. & Pr. 583, 584; Story, Eq. PI. 443. any exception to this rule. See Bank 2 In Hoadley v. Smith, 36 Conn, of Utica v. Messereau, 7 Paige Ch. 371, it was held that the defendant 517. If the discovery called for is of could not plead to the merits of the such a character that the defend- case and at the same time demur to ants are not bound to make it or the sufficiency of the bill. And in the complainant is not from the nat- Graj' V. Regan, 33 Miss. 304, the gen- ure of the case entitled to call for eral rule was stated that a party it, the defendants should have de- oannot demur to the whole bill and murred; or, if the discovery, when at the same time answer to a part of made, will be entirely immaterial it. Anderson v. Newman, 60 Miss, or unavailing to the complainant as 533; Souzer v. De Meyer, 2 Paige Ch. evidence, the defendants might have (N. Y.) 574. In Waring v. Suydam, referred the bill for impertinence. 4 Edw. Ch. (N. Y.) 426, 438, it is said: But it appears to me that it is not "As a general rule the defendants, immaterial if true; and from the having submitted to answer gen- nature and character of the business erally, and not to answer a part or which has given rise to this contro- parts of the bill, taking care to cover versy, it is just such a disclosure, in other parts by a plea or demurrer, all its particulars, as the oomplain- are bound to go on and answer fully ant is entitled to have made. I every material allegation of the bill must, therefore, hold the master's and all the interrogatories founded decision to be correct in allowing on the allegations and charges. And the six exceptions for insufHciency." § 1-1- J DEFENSES IN EQUITY. 155 §121. Tlie form of the general demurrer.— The general demurrer, as we have seen, is one of substance, that is to say, it goes to the substance of the bill and is to the effect that the case made by the complainant, admitting all of the well pleaded facts of his bill to be true, contains no equities upon which the decree prayed for can be based. The old English demurrer was quite formal; it contained the title of the court and the cause, and then proceeded with the title of the de- murrer as being the demurrer of the defendant to the bill of complaint of the complainant, and then contained a protesta- tion that it did not confess or acknowledge, in manner or form, any of the matters or things contained in the bill to be true, but demurs thereto, and for cause of demurrer stated that the complainant had not stated in his bill a case entitling him in a court of equitj' to any discovery or relief as to the matters set forth in the bill, and concluded with prayer for judgment whether he should be compelled to make any answer to said bill, and prayed to be dismissed with reason- able costs and charges.' The strictly formal parts of the demurrer, however, have more or less gradually given way under decisions of the courts, holding that if there was a clear and lucid statement in the body of the demurrer that the bill did not contain equities upon which the decree prayed for in the bill could be founded it would be sufficient, but because grounds upon which the de- iThe following was the usual form of demurrer adopted: Circuit Court of the United States, ( t -p^,.;^. Eastern District of Michigan. [ ^"^ i^qmiy. John Jones, Complainant, ) V. V Demurrer. William Smith, Defendant. ) The demurrer of William Smith [or, of William Smith, an infant under the age of twenty -one years, by A. B., of county, his guardian; or, of William Smith, an idiot or lunatic, by A. B.. of county, his guardian] to the bill of complaint of John Jones, the complainant. This defendant by protestation, not confessing or acknowledging all or any of the matters and things in the said bill of complaint to be true, in such manner and form as the same are therein set forth and alleged, de- murs to the said bill, and for cause of demurrer shows that the said com- plainant hath not in and by said bill made or stated such a cause as doth, or ought to, entitle him to any such discovery or relief as is thereby sought and prayed for from or against this defendant. Wherefore, this defendant demands the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and prays to be hence dismissed, with his reasonable costs in this behalf sus- tained. 156 DEFENSES IN EQUITY. [§ l^l- fendant demurred to the bill should be set forth in the de- murrer, it was difficult at all times to understand what was really necessary to be set out in the body of the demurrer until by statutes and rules of practice adopted in the different courts that question was, at least to some extent, settled. A very clear and lucid statement upon this subject is given us in the case of Essex Paper Co. v. Greacen et aU In this case the general demurrer was in substance as follows: "That the complainant has not in and by his bill made or stated such a case as entitles it to any discovery from the defendants or to any relief against them or either of them." The complain- ant moved in the case to strike out the demurrer, because it did not state the particular ground or cause on which it was founded, as required by rule. The court in its opinion said: " The new orders in chancery of England contain a clause identical in purpose with our rule. Eule two of order twenty- eight requires that a demurrer shall state the specific ground on which it is founded. Our rule requires that the particular ground shall be stated. So that it is manifest, from their lan- guage, that the scope and design of both are the same. The meaning of the English rule is settled. It was first construed by Mr. Justice Kay at chambers, and afterwards, in the court of appeals, by Sir George Jessel, M. K., and Lord Justice Baggallay and Lindley in Bidder v. McLean, L. E. (20 Ch. Div.) 512. There, as here, a general demurrer had been filed, without stating other cause than want of equity ; and there, as here, the complainant applied to have the demurrer struck out because it did not specify the ground on which it was founded. But the court held that an averment of want of equity, in the usual language of a general demurrer, will con- stitute a sufficient specification of the ground of demurrer, under the rule, in a case where it appears to the court, on in- specting the complainant's bill, that his right to relief, assum- ing all his facts to be true, is doubtful. The master of the rolls said: 'This is a case in which I must say that the plaint- iff had some reason to expect a general demurrer for want of equity. I do not mean to prejudge the question whether the demurrer will succeed, but the equity is not obvious at first 1 45 N. J. Eq. 504, 19 Atl. 466. § 121.J DEFENSES IN EQUITY. 157 sight. I have not heard a suggestion in what better form the demurrer could have been put in such a case as the present. It is urged that, if we hold this demurrer good in form, the directions in order 2S, rule 2, will be made nugatory; but that is not so. 1 do not think that it was intended to make it im- possible to demur in a case where the statement of claim is so framed that the only way of meeting it is by the simple alle- gation that it shows no cause of action. In many cases a gen- eral demurrer like this would be improper; but I think it is not so in the present case.' And Mr. Justice Lindley said, in substance, that the specification of the ground of demurrer con- tained in a general demurrer would not, as a general rule, be sufficient; but whether it will be sufficient or not, in any par- ticular case, must depend entirely upon the form in which the plaintiff has stated his claim. The English rule, as enforced in practice, may be correctly stated as follows: Where the court finds, on looking at the complaiaant's bill, that his right to relief is doubtful or uncertain, or, in the words of Sir George Jessel, that his equity is not obvious at first sight, there a simple statement of want of equity will, under the rule, constitute a suificient specification of the ground of the demurrer; but where the defect or infirmity on which the de- murrer is founded is obscure or latent, to such an extent that the court cannot, on inspecting the complainant's bill, readily discern it, there the rule requires the demurrant to point out, by a plain statement, the specific ground on which his de- murrer is founded. This construction gives full effect to the fundamental purpose intended to be accomplished by the adoption of the rule, which was to secure greater fairness and thoroughness in the discussion of questions arising on general demurrer than could be had under the old practice. Under the old practice, it sometimes happened that, although a general demurrer was well founded in point of law, yet the ground upon which it rested was so far beyond the line of vision of the ordinary practitioner that he could not see it without hav- ing it pointed out to him, and only lawyers of very extended experience, or unusual acumen, would readily discern it. A simple allegation of want of equity gave the ordinary practi- tioner, in such a case, no information whatever of the ground on which his statement of his client's case would be attacked. 158 DEFENSES IN EQUITY. [§ 121. The demurrer rather emboldened than disturbed him, for, not seeing the ground of the demurrer, he supposed none existed, and he would proceed to the argument of the demurrer in ignorance of the ground on which it rested, and generally without preparation, and the consequence was that in such ■oases the court was either compelled to defer the case for farther argument, or to decide it upon an imperfect argument. The purpose of the rule was to cure this mischief, by making it the duty of a demurrant, when he filed his demurrer, to make such a disclosure of the ground of his demurrer as would render it probable, when his demurrer came on for argument, that all the questions raised by it would be fully, fairly and thoroughly discussed." It may therefore be said that where it is not clearly apparent upon the face of the bill that the right to the relief prayed is doubtful or uncertain, so that tlie court cannot upon inspection readily discern it, the demurrant should specifically point out the grounds upon which it is founded. In Farwell v. Johnston ^ the court say : " On general demur- rer such allegations of matters merely going to make up a completed consideration are good enough, although it would have been more correct pleading if they had been set out more specifically." In Kellogg v. Samilton^ the court say: "The terms of the demurrer were not meant to suggest, and did not suggest, the alleged error, and the attention of the court below has never been drawn to it. A cause of demurrer should berso stated as to apprise the court of the real objection, and in case it is not, 1 34 Mich. 342, 343. titled to equitable relief was suffi- 243 Mich. 269, 271; Pratt v. Lewis, cient to cause the objection that a 39 Mich. 7, 10, 11; Ideal Clothing Co. complainant, as administrator de V. Hazle, l-:6 Mich. 263, 85 N. W. 735; bonis non, could not maintain a suit Glover v. Hargadine, etc. Co. (Neb., to recover damages for failure of an 1901), 87 N. W. 170; Sweet v. Con- original executor to foreclose a mort- verse, 88 Mich. 1. In Parker v. Ste- gage: holding further that an ex- vens, 61 N. J. Ch. 163, 47 Atl. 573, plicit statement is required only under a rule of court providing that where the objection Is obscure and "every demurrer, whether general not wherethegroundof thedemurrer or special, shall state the particular is obvious upon the face of the bill, grounds upon which it (is) based," it But see Bishop v. Waldron, 56 N. J. was held that a demurrer setting out 484, 40 Atl. 447; aiBrmed, 48 Atl. that the complainant was not en- 1098, §§122, 123.] DEFENSES IN EQUITY. 159 the party demurring can claim nothing under it. Any other practice would be an obvious affront to common sense as well as justice." Xo doubt the rule requiring that the causes for demurrer shall be specifically set forth is more or less induced by the rule of law that " upon a demurrer every reasonable presump- tion is to be made in favor of rather than against the bill."^ § 122. (2) Special demurrer. — A special demurrer is one based upon a deficiency in the bill in matter of form, as where there is an omission of some prescribed formulation, as failure to sign by counsel;^ or verify it by the oath of the complain- ant, or by some one in his behalf;^ or where it is necessary to state the residence of the parties and it is omitted. In Winnijnseogee Lake Co. v. Young* it was held that a de- murrer would lie where the bill alleged that plaintiff was a private corporation but failed to allege that it was a corpora- tion established by law in some state and transacting business as such in same place. And where the complainant by his bill fails to offer to do equity, the rules of practice requiring it, the bill is subject to demurrer. The most frequent cause for spe- cial demurrer is for want of sufficient certainty in framing the bill, but any defect or irregularity in the framing of the bill may be taken advantage of by special demurrer. From the very nature of the special demurrer it will be seen that the especial defect complained of must be set out in the demurrer.'' § 123. Demurrer ore teuus. — A demurrer ore tenus is one where the causes of demurrer are assigned orally. For example, it is allowed where the defendant has put in a general demur- rer to the whole bill and the causes assigned upon the record have been overruled. In such case other causes of demurrer 1 Lincoln V. Purcell, 2 Head (Tenn.), to the form of the bill cannot be 143. taken advantage of on appeal when ^ Gove V. Pettis, 4 Sandf. Ch. (N.Y.) not raised in the court belovi'. Mc- 403; Dwight v. Humphreys, 3 Mc- Coy v. Boley, 31 Fla. 808. Lean (U. S.), 104. ^ Atwill v. Ferrett, SBlatchf. (U. S.) •i Lansing v. Pine, 4 Paige, 639; Mt. 39. A demurrer for want of parties Holly, etc. Co. v, Ferree, 17 N. J. Eq. should be special, and the proper 117; Findlay v. Hinde, 1 Pet. (U, S.) parties pointed out. Hightower v. 341. Mustain, 8 Ga. 506; Laughton v. 4 40 N. H. 420; Ketcham v. Driggs, Harden, 68 Me. 308. 6 McLean (U. S.), 13. The objection 160 DEFENSES IN EQUITY. [§ 124- " ore temis'' will be allowed at the argument.' It is a rule,, however, applicable in all the courts, that the defendant can only assign causes orally which are co-extensive with the de- murrer he has put upon the record.^ And so the defendant cannot go beyond the demurrer which he has already filled; he can only assign other causes that may fairly be said to be within the subject of the demurrer he has served and filed.' If the defendant filed a general demurrer for want of equity, he can ore tenus assign any defect in substance at the argu- ment,, for such an assignment would be held to be co-extensive with the demurrer of record.* § 121. Joint demurrer. — Several defendants may interpose a joint demurrer to the bill of complaint, though generally it is made joint and several. If the defenses be purely joint defenses and the several defendants " join in a demurrer for want of equity solely, neither can be allowed to raise a ques- tion which is not available to both." ' The cause of demurrer 1 In Gai-lick v. Strong, 3 Paige Ch. (N. y.) 440, 453, the chancellor said: "The demurrer ore tenus, however, is well taken; as the wife cannot be permitted to sue except by her next friend. If the defendants cannot sustain the demurrer on the record, they may demur ore tenuis; but availing themselves of that right, they must pay the costs of the de- murrer on the record. This was so held by Lord Eldon in the case of The Attorney-General v. Brown, 1 Swanst. Rep. (Eng.) 288." 2 In Burk v. Machine & Foundry Co., 98 Mich. 614, the court say: "It is well settled that a receiver can- not be sued without leave of the court appointing him. Tremperv. Brooks, 40 Mich. 333; Citizens' Sav. Bank v. Circuit Judge, 98 Mich. 173. The bill, in the present case, fails to state that it is filed by leave of the court; and in such case, the defect being apparent on the face of the bill, the question may be raised by demurrer. Jenn. Ch. Pr. 59. At the hearing of a general demurrer, the defendant may orally assign any cause of de- murrer which is co-extensive with the demurrer upon the record. Jeu- nison, Ch. Pr. 61." 3 Pitts V. Short, 17 Ves. Jr., 215; Equitable Life, etc. Soc. v. Patterson, 1 Fed. 136. 4 Barrett v. Doughty, 25 N. J. Eq. 380; Burk v. Muskegon Machine Co., 98 Mich. 614. But after answer is filed defendant cannot on demurrer ore tenus object that the plaintiff has an adequate remedy at law. Sherry V. Smith, 73 Wis. 339, 39 N. W. 556. In Van Orden v. Van Orden, 59 N. J. Ch. 545, 41 Atl. 671, it was held that a demurrer ore tenus for want of parties might be assigned at the hearing under a general demurrer for want of equity. But in Hoff v.- Olson, 101 Wis. 118, 76 N. W. 1131, the court held that an objection to a bill tliat there was an adequate remedy was waived unless taken by demurrer or answer, and could not be raised by a demurrer ore tenus at- the trial. 5 Sweet v. Converse, 88 Mich. 1. § 12o.J DEFENSES IN EQUITY. 161 being joint, tiie court would consider it as such and one judg- ment would dispose of it, but if upon the hearing it should be found that the demurrer was good as to some of the defend- ants and bad as to others, the court of equity would no doulat make a decree according to the several interests of the de- fendants. In Barstow v. Smith^ the chancellor said: "A demurrer may be good as to one defendant and bad as to other defend- ants. The rule that it cannot be good in part and bad in part, and therefore is bad as to the whole, applies to different parts of the bill covered by the demurrer, and not to different de- fendants who have united in the demurrer, as to one or more of whom it may be good, and bad as to others. It is a good ground of demurrer to the whole bill that one of complainants has no interest in the suit, and has improperly joined with others in filing the bill; but there is no such rule in regard to defendants." The demurrer in this case appears to have been a special demurrer, and it seems generally conceded that the rule here laid down with reference to joint demurrers is appli- cable only where the defendants demur specially. § 125. When may the demurrer be filed. — The general rule is that the defendant may at any time before the bill is taken as confessed, before an ovder pro confesso is taken, either demur, plead or answer, and if a demurrer is interposed, it will take the same course as though filed within the time pre- scribed within the rules of practice;^ that is to say, the plaint- iff, by failing to take advantage of the rule permitting him to enter the default of the defendant for failure to demur, plead or answer, will be considered to have waived the privilege for the time being; and if the defendant answers the bill taking issue upon the allegations of fact, he will not be permitted to then file a demurrer, for it would be, as we have seen, incon- 1 Walk. Ch. (Mich.) 397; Dzialynski be bound to take the same course as V. Bank, 3a Fla. 347; 1 Barb. Ch. Pr. though filed in time. And in Harvey 108; Wooden v. Morris, 3N. J. Eq. 65. v. Richmond Ry. Co. (U. S. C. C), 64 ^ In Oliver v. Decatur, 4 Cranch Fed. 19, it was held that where two (U. S. C. C), 458, it was held that the demurrers are filed which are virtu- defendant may at any time before ally the same, one filed within the an order pro confesso, taking the time and one later, the court may in bill as confessed, plead, answer or its discretion permit the second de- demur, and the complainant would murrer to stand. 11 162 DEFENSES IN EQUITY. [§ 125. sistent with the answer, and the answer having already been filed, it would be necessary for hiin, if he desired to demur, to first obtain leave of the court to withdraw the answer and interpose a demurrer in its stead.^ The regular course of pleading would forbid a proceeding that would confound the real issues. The complainant by his bill alleges the facts upon which he claims his right to the relief sought. The defendant may defend by denying the legal sufficiency of these facts by interposing a demurrer, or he may deny the facts, or confess and avoid them by an answer, or in some cases by a plea, but these are distinct grounds of defense and cannot be mingled and confounded.^ The time for interposing a demurrer, or plea, or answer, is usually regulated by statute or rule of court.' lln Hoadley v. Smith, B6 Conn. 371, the court say: "The respondent claims that he has a right to inter- pose a demurrer in a suit in chan- cery in any stage of the case, before a iinal decree shall have been passed, and to stop the proceedings till the demurrer shall be heard and deter- mined. He claims the right to do this even if the cause is on trial upon its merits, upon an answer liled by the respondent, before the court, or a committee appointed to hear and report the facts, as well as at any other time during the pendency of the cause. If the respondent has this right, he has it in defiance of all order in the proceedings and con- trary to the settled practice of the state from time immemorial. This demurrer was filed with the clerk, without the assent of the court, or consent of the petitioners, after the respondent had filed an answer to the petition, and a committee had been appointed to hear and report the facts of the case; and after the committee had made his report, and a remonstrance had been filed to the acceptance of the same; and after the petitioners had made their an- swers to the remonstrance, and the respondent had filed his replication to the answer; and after the pai'ties had been fully heard upon the ques- tions arising upon the remonstrance, and while the court was considering what judgment should be rendered thereon. No motion was made to change or alter the answer that had been filed to the petition; or to change or alter the remonstrance to the acceptance of the report of the committee; or to change or alter the replication to the answer to the re- monstrance; but the respondent in- terposed the demurrer while the issues joined on these pleadings were being tried by the court. If the court was bound to receive it, it must be on the ground claimed by the respondent, that a demurrer is always in order in the trial of causes, like a motion to adjourn in parlia- mentary proceedings. But we think no principle is better settled than that a party cannot plead to the merits of a cause and demur to the sufficiency of the declaration or petition at the same time; or at dif- ferent times so that botli will be pending at the same time. All the books upon pleading uniformly de- clare that this cannot be done.'' Newman v. Moody, 19 Fed. 858. 2 Adams v. Way, 33 Conn. 160. 3U. S. Eq. Rule 18; and see rules of practice in the several states. §§ 126, 127.] DEFENSES IN EQUITY. 163 And where the defendant, after the time to demur, plead or answer to the bill of complaint, obtained an extension of time to answer, h& was not allowed to interpose a demurrer without leave, and a demurrer filed under such an order was stricken from the files. The chancellor, in his opinion, said: "It is a well settled rule of practice in the English court of chancery that the defendant cannot put in a demurrer without a special permission of the court, after he has obtained a general order for further time to answer; and, if he does file such demurrer, it will be ordered off the files for irregularity, with costs."' And the rule has been held to be the same when the time to answer has been extended by stipulation of the parties.^ § 126. The extent of the demurrer. — The defendant, as we have seen, may demur to a part of the bill, plead to a part and answer to a part, but when the demurrer is only intended to apply to a part of the bill, that part should be especially noted in the demurrer; for if the demurrer be to the whole bill for want of equity, and any part of the bill be found sufficient to support the object of the bill, the demurrer will he over- ruled.^ But where there is a demurrer to the whole bill and to each of the several parts of the bill specifically set out, and some of the parts thus specifically demurred to are not suffi- cient to authorize the relief prayed for, the court may sustain the demurrer as to these parts and overrule it as to other por- tions found sufficient and order the defendant to answer as to the portion of the bill found sufficient.* § 127. Demurrers to bills not original. — The same prin- ciples that have already been discussed govern demurrers to 1 Burrall V. Raineteaux, 2 Paige Ch. 1898), 48 S. W. 300; Hall v. Calvert {N. y.) 331; Cowman v. Lovett, 10 (Tenn. Cb. App., 1897), 46 S. W. 1120; Paige (N. Y.), 559; Lakens v. Fielden, Durham v. Stephenson, 41 Fla. 113, 11 Paige (N. Y.), 644. 21 S. 284; Bliss v. Parks, 175 Mass. 2 Bedell V. Bedell, 2 Barb. Ch. (N. Y.) 539,56 N.E. 566; Berwind v. Canadian, 100. etc. Ry. Co. (U. S'. C. C, 1899), 98 Fed. 3 A general demurrer may be over- 138; Larter v. Canfleld, 59 N. J. Ch. ruled if found not to be good as to 461, 45 At). 616; Lowry v. Stapp the whole bill. Williams v. Hub- (Tenn. Ch. Aj.p., 1899), 53 S. W. 194; bard. Walk. Ch. (Mich.) 28; Barks- Moore v. Bank, 120 Ala. 89; Women's, dale V. Davis, 114 Ala. 623, 23 S. etc. Order v. Haley, 86 III. App. 330; 17; Trenton Pass. Ry. Co. v. Wilson, Eakin *'. Hawkins, 48 W. Va. 364, 37 53 N. J. Eq. 577; Overall v. Avant S. B. 622. (Tenn. Ch. App., 1897). 46 S. W. 1031; * Powder Co. v. Powder Works, 98 MoNutt V. Roberts (Tenn. Ch. App., U. S. 126; Gay v. Skeen,36 W. Va. 583. 164: DEFENSES IN EQUITY. [§ 127. bills not original. "Whenever it- appears upon the face of the bill, admitting all of the material facts alleged to be true, that the relief prayed for should not be granted, it is"proper to in- terpose a general demurrer, and the rules as to defects in form are the same as apply to any other bill. As, for example, if the bill be a bill for revivor, and there is want of privity ; or the parties seeking to file the bill have no legal interest in the former suit; or there is a defect in the form of the bill, a de- murrer will lie.' Or if the bill be a supplemental bill, a bill that can only be filed for the purpose of exhibiting to the court facts supplemental to the original bill which have arisen since the filing of the bill ; facts that cannot be taken advantage of by way of amendment because they did not exist at the time the bill was filed; if it should appear upon the face of the bill that the facts relied upon and alleged in it did exist prior to the filing of the original bill, and that the supplemental bill was simply making a new and different case from the original bill, it would be subject to demurrer, for the facts should be taken advantage of by way of amendment.^ A demurrer, however, to a cross-bill is governed by different rules. If the cross-bill is filed by a defendant in a suit against the plaintiff touching the same matter that is set out in the original bill, it has been held that it is not demurrable for want of equity, for it is in substance that which the plaintiff in the original bill has already put into the case and the defendant is only availing himself of the matter as a defense; but if the cross- bill goes farther than this and seeks relief, it must be equitable relief based upon other allegations relating to the same sub- ject-matter of the original bill, or is rather a cross-bill in the nature of an original bill. In such case and as to such matters, 1 story, Eq. PI., sec. 617; Coop. Eq. the original bill by way of amend- Pl. 310; Mitf. Eq. PI., by Jeremy, 202. ment, although the supplemental 2 In Dias v. Merle, 4 Paige (N. Y.), bill alleges that the new facts were 259. the court said; "Where no oc- not known to the complainant until currenoe has taken place to change after the cause was at issue on the the rights of the parties subsequent original bill. The proper course for to the commencement of the origi- the complainant, where the proofs nal suit, the complainant cannot, have not yet been taken in the cause, after the cause is at issue, file a sup- is to apply to the court for leave to plemental bill for the mere purpose withdraw the replication, and to- of putting in issue new facts, which amend the bill." Colclough v. Evans, might have been introduced into 4 Sim. Rep. 76. § 128.] DEFENSES IN EQUITY. 165 the rules governing the demurrer would obtain. Such a cross- bill must contain allegations which will support the further relief prayed for, and if it does not, it will be open to a de- murrer.^ It is a rule governing cross-bills that they must be confined to the matters in litigation in the original bill, and where they go beyond this, and allege other and distinct mat- ters and seek relief upon such new and distinct allegations, it is said that it is no longer a cross-bill and is demurrable for this reason. And so, if a bill of review be filed contrary to the practice of the court, or fail to set up such matters as will give the court jurisdiction, it would be subject to demurrer. § 128. Bringing the demurrer to a hearing. — The de- murrer raises an issue of law to be heard and determined by the court. The issue thus made is brought on for hearing ac- cording to the rules and practice that obtain in the several courts; as, for example, in some of the states the practice is that it must be noticed for hearing a certain number of days before the first day of the term, while in other courts it is put upon the calendar and will be taken up for argument when it is reached, or when it is set down for argument. In the United States court it is governed somewhat by a rule of the court. " If the plaintiff shall not reply to any plea, or set down any plea or demurrer for ai'gument on the rule-day when the same is filed, or on the next succeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that purpose."^ In the dif- ferent circuit courts of the United States it is regulated by local rules. The former English practice required the plaintiff to obtain an order upon a petition asking the court to set the demurrer for hearing, which order must be served upon the defendant's solicitor at least two days before the hearing.' iCoop. Eq. PI. 215; Story, Eq. PI. for that purpose. Unless specially di- 630. rected by an order of the lord chan- 2U. S. Eq. Rule 38; Gillette v. Do- cellor or lords justices, the demurrer heny (U. S. C. C), 65 Fed. 715; Mem- must be set down to be heard before phis, etc. Ry. Co. v. Owens, 60 Miss, the judge to whose court the cause 227. is attached. If the cause is attached 31 Danl. Ch. PI. & Pr. 594. "The to the court of one of the vice-chan- party wishing to set down a demurrer cellors, this order is obtained on a for argument must obtain an order petition of course, to the lord chan- 166 DEFENSES IN EQUITY. [§§ 129, 130. § 129. The hearing of the demurrer.— The demurrer hav- ing been regularly brought on for hearing, all of the facts upon which the judgment of the court at the hearing can be based are contained in the bill of complaint to which the de- murrer is interposed, and the court can take no other facts into consideration; the argument is purely an argument upon an issue of law based upon the facts alleged in the bill. If the court should determine that the demurrer is well taken, it will order a decree sustaining the demurrer; if the court should conclude otherwise, the decree will be that the demurrer be overruled. As we have seen, the demurrer may be to a part of the bill, in which case the court may sustain the demurrer and the cause will remain in court as to the part not covered by the demurrer, and usually the bill will be allowed to be amended as to that part to which the demurrer is sustained. If the demurrer be to the whole bill and it is sustained, the case is practically concluded. The rules and practice of the chancery court as to amendments, however, are very liberal, and where the case is one where the plaintiff might amend the bill without alleging facts inconsistent with the allegations in the original bill, and the ends of justice will permit it, he will generally be allowed to do so.' § 1.30. The judgment or decree upon demurrer The judgment or decree upon the hearing depends somewhat upon the kind of demurrer that was interposed to the bill. If a de- murrer to the whole bill be sustained at the hearing for want of equity, the decree is a final decree dismissing the bill and may be appealed from if the complainant so elects; but if the bill is of such a nature that it can be amended so as to cure the defect, the court will generally allow it, but the amend- ment must be consistent with the allegations in the original bill. Formerly an amendment was not allowed where a gen- eral demurrer was sustained. In the case of Lyon v. Tallmadge ^ the demurrer was a gen- eral demurrer for want of equity, and the court denied the cellor, being left at the order of by the order of course clerk the course seat in the registrars' office, same day." and is dated the day the petition is i Powder Co. v. Powder Co., 98 U. left; and the demurrer is set down S. 126. 2 1 Johns. 184, § 130.] DEFENSES IN EQUITY. 167 complainant leave to amend the bill. The court say: "The motion for leave to amend the bill is not founded upon anj^ specified omission or imperfection. The demurrer was de- cided upon the merits, and on the ground that the bill con- tained no equity. A general leave to amend would be the same as leave to make a new bill, and I think the indulgence of amendments is not to be cai-ried so far. If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief. Thei^e must be equity in the case, when fully stated, and correctly applied to the proper parties, sufficient to warrant a decree." The rigor of this rule, however, has been somewhat relaxed; in the United States court it is regulated by rule of court. " If upon the hearing any demurrer or plea shall be allowed, the defend- ant shall be entitled to his costs, but the court may in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.'" If 1 "Strictly speaking, upon a demur- general demurrer and there was no rer to the whole bill being allowed, interest shown in the wife, but in- the bill is out of court, and no subse- terest was shown to be in tlie hus- quent proceeding can be taken in band, it was held that the demuiTer the cause. The court often, how- should be sustained as to the wife, ever, on hearing the demurrer, gives Crane v. Deming, 7 Conn. 387. And leave to amend, and there are cases in Alfred Richards Brick Co. v. At- in which it has afterwards permitted kinson, 16 App. D. C. 463, where a an amendment to be made; and it demurrer to the whole bill was in- seeras that, even after a bill has terposed and sustained, it was held been dismissed by order, it has been that the bill was out of court and considered in the discretion of the could not be regularly amended, court to set the cause on foot again." but if justice required a different 1 Danl. PI. & Pr. 597; 1 Barb. Ch. Pr. course, it was competent for the 111; U. S. Eq. Rule 35; National court to allow the bill to be amended. Bank v. Carpenter, 101 U. S. 567. In And where the demurrer to the Mcintosh V. Alexander, 16 Ala. 87, it bill was upon several grounds, and was held to be a general rule that a one of the grounds of demurrer was demurrer for multifariousness, like sustained, it was held that such a a demurrer for misjoinder at law, decree sustained the whole demurrer goes to the whole case, and if such and put the case out of court unless a demurrer be sustained, the bill the bill was amended. Coleman v. should be dismissed. And where a Butt (Ala., 1901), 30 S. 361. In Bos- husband and wife both joined in a ton, etc. Ry. Co. v. Parr (U. S. C. C, 168 DEFENSES IN EQUITY. [§ 130. the demurrer be to a part of the bill and sustained upon the hearing, the complainant usually amends the bill, if he can do so and preserve the purpose and object of it, and after such an amendment the cause proceeds as though no de- murrer had been filed. If the part of the bill to which the demurrer was sustained be of such importance that it would af- fect the object of the bill and materially impair the purpose for which it was filed, for the purpose of appealing the cause, the decree sustaining it would be considered to be a final de- cree. If the judgment of the court be that the demurrer be overruled, the defendant will be allowed to answer the bill, and would, in cases where discovery is sought, be required to answer. In no case woald the court grant a decree against the defend- ant upon the case made in the bill upon overruling the de- murrer, because the complainant has not proven his case, and it is necessary that he should prove sufficient allegations in the bill to entitle him to the relief sought, or that he should have an order pro oonfesso on default of defendant. While it is true that the demurrer admits the material facts in the bill to be true, it is only an admission for the purposes of the argu- ment of the demurrer and not an admission that can be other- wise used in the case; that is to say, it may be said that the demurrer stood as an excuse for not answering, and on over- ruling the demurrer the court says to the defendant, your ex- cuse for not answering is not allowed, and you must plead or answer to the bill or your default for not doing so will be taken, and the bill taken as confessed;' but should the defendant elect to rest his defense upon the demurrer, he may appeal to a higher court, and for this purpose the decree overruling the demurrer would be considered the final decree.^ The de- ISO'J), 98 Fed. 483, it was held that lingslea v. Manear, 47 W. Va. 785, 35 leave to amend a bill after a demur- S. E. 847, it was held that on over- rer had been sustained rests in the ruling a demurrer to an original bill discretion of the court and is not a defendant was entitled to a rule to matter of right. Fleece v. Russell, answer the bill. 13 111. 81; De Louis v. Meek, 2 G. -Whiting v. Mayor, etc. of New Greene (Iowa), 55, 50 Am. Deo. 491; York, 37 N. Y. 600. The court say: CuUison V. Bossom, 1 Md. Ch. 95. " In this case the appellants had, in 1 Hays V. Hetherly, 36 W. Va. 613, the court below, demurred to the 15 S. E. 283, 231; Lambert V.Lambert, complaint. The demurrer being 52 Me. 544; Jourolmon v. Massengill, overruled, with leave to answer, they 86 Tenn. Ch. 81, 5 S. W. 719. In Bil- declined to answer, submitted to the § 131.J DEFENSES IN EQUITY. 1G9 fendant, after his demurrer has been overruled, will not be permitted to file another demurrer to the same extent, for it would be but a rehearing of the same matter.' If the de- murrer is to the whole bill for want of equity, it cannot be sustained if the bill contains sufficient allegations of fact to constitute a cause of action; that is to say, such a demurrer cannot be good in part and bad in part, and if the demurrer should be to several parts of the bill, the demurrer would be overruled if any of the parts to which the demurrer was ad- dressed were sufficient to entitle complainant to relief.^ §131. Demurrer overruled by plea or answer. — A de- murrer, as we have seen, admits all the facts that are well pleaded in the bill to be true; it would therefore follow that judgment, and, on the aflSrmance in the general tei-m, appealed to this court. On the argument here, the appellants urged that, if the judg- ment should be affirmed, leave should now be given to them to an- swer the complaint. The court are unanimous in holding that, where a pleading is sustained, the demurrer being overruled, and leave is given to answer the pleading, the demur- rant is put to his election to answer over or submit to judgment; and if he submit to judgment, the judg- ment is final. If he appeal there- from to this court, such appeal comes here on the question of affirmance or reversal only; and no leave to the demurrant to answer or plead anew can be given." 1 1 Danl. Ch. PI. &Pr. 601. "Where a demurrer is overruled, and the plaintiff amends his bill, the defend- ant is not precluded from appealing against the order overruling the de- murrer; but after the defendant has served the plaintiff with notice of the appeal, an order of course to amend the bill is irregular, and will be discharged with costs, and the amendments expunged. After a de- murrer has been overruled, and no- tice of appeal given, the plaintiff cannot obtain an order of course to dismiss his bill, with costs." 2Flynn v. Third Nat. Bank, 122 Mich. 642,81 N. W. 572; Paoifio Live- stock Co. V. Hanley (U. S. C. C, 1898), 98 Fed. 327; Lowry v. Stapp (Tenn. Ch. App., 1899), 53 S. W. 194; Larter v. Canfleld, 59 N. J. Ch. 461, 45 Atl. 616; Robinson v. Kunkleman, 117 Mich. 193, 75 N. W. 451; Miller v. Hare, 43 W. Va. 647, ;;8 S. E. 722. Where only a part of the bill is de- murrable the demurrer should be taken to such part and should not be directed to the bill as a whole, and if it is so directed it will be over- ruled. Moore v. Alabama, etc. Bank, 120 Ala. 89, 23 So. 831; Overall v. Avant (Tenn. Ch. App.), 46 S. W. 1031; Hall v. Calvert (Tenn. Ch. App.), 46 S. W. 1120; Barksdale v. Davis, 114 Ala. 623. A demurrer for want of equity cannot be sustained if the court is satisfied that pi'oof can be made under the allegations of the bill showing the cause to be an equitable one. Ernst v. Elmira, etc. Co., 54 N. Y. S. 116; Williams v. Hubbard, Walk. Ch. (Mich.) 28; Thayer v. Lane, Harr. Ch. (Mich.) 247; Wilmarth v. Woodcock, 58 Mich. 482; Carney v. Carney, 63 Mich. 382; Hatch v. Village of St. Joseph, 68 Mich. 220. 170 DEFENSES IN EQUITY. [§ 133. any pleading which traverses those facts would be inconsist- ent with a demurrer, and so when a defendant, after having demurred to the bill, files a plea or answer which controverts the facts of the bill, the demurrer will be overruled. And so where a defendant filed a demurrer to a bill, and afterwards an answer denying allegations of facts made in the bill, it was held that the demurrer should be treated as overruled by the answer.^ In Drost v. SalP the court held "that the answer overlaps and overrules the demurrer. It is a well-settled rule that a less favored mode of defense will yield to the more favored, i. e., a plea to an answer and a demurrer to a plea or an an- swer. When more than one mode of defense is resorted to, no two must overlap, as the least overlapping is fatal to the less favored defenses." In Basel/ v. Gallagher^ the court say: "The record does not disclose what disposition was made of the demurrer to the complaint, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the presumption is that it was abandoned." g 132. The effect of failing to demur. — If the objection to the bill be that the case made by it does not warrant the re- lief prayed for — that it is without equitj'^, — a failure to inter- pose a general demurrer wouldnot waive this objection, though it was apparent upon the face of the bill such an objection could be taken at the hearing; and this may be said to be the general rule where the demurrer is one for defect in substance.* And so where the complainant's remedy is purely a legal one, the courts will refuse to entertain a bill to enforce it, even though the defendant, instead of demurring, answers.' But if 1 Strang v. Richmond, etc. Ry. Co., 978, it was said, "the law does not 41 C. C. App. (U. S.)474, 101 Fed. 511. favor the raising of technical ques- ^ 5a N. J. Eq. 68, 29 Atl. 437; Mitf. tions after hearing upon the merits, Eq. PI. (4th ed.) 209; Langd. Eq. PI. and will not permit the dismissal of a 103; Story, Eq. PI. 465; 1 Danl. Ch. PI. bill upon a demurrer clause in the & Pr. 570, 616, 791; Veghte v. Water answer unless the bill is fatally de- Power Co., 19 N. J. Eq. 145. feotive, and past remedy by amend- 3 20 Wall. (U. S.) 670, 679; 1 Fos- ment." Barton v. Gray, 48 Mich, ter's Fed. Pr., sec. 122. 164; Baunian v. Bean, 57 Mich. 1; 1 Herbert V. Hobbs, 3 Stew. (Ala.) 9; Tyson v. Decator, etc. Co., 121 Ala. LooUard v. Looliard, 16 Ala. 423. In 414, 26 S. 507. Smith V. Blake, 96 Mich. 542, 56 N. W. « Binney v. Turner, Walk. (Miss.) 498. § 103.] DEFENSES IN EQUITY. 171 the objection is formal and technical, in such case failure to demur and going to hearing on the merits would waive the objection. And where the objection was for want of obviously necessary parties it was held to be waived by failing to demur for that reason.^ And where defendant failed to demur for misjoinder of parties, the defendant answering and going into the merits of the case was held to have waived the defect.' The same rule applies where the bill is multifarious, or its allegations are inconsistent and repugnant to each other; or where it appears upon the face of the bill that there is an ade- quate remedy at law. In such case the objection should be taken by demurrer, and if not taken and the defendant answers and goes to a hearing upon the merits, it will be held that the defects are waived.^ It may be said, however, that the court may, if the ends of justice demand it, dismiss a bill at the hearing, even though the defendant has failed to raise objec- tions by demurrer. It has been so held incase of multifarious- ness.'' II. Defense by Plea. § 133. The plea. — A plea in equity may be said to be a pleading by which the defendant meets the case made by the bill of complaint by alleging some one fact, or several facts which, taken together, make out the one fact, and demanding the judgment of the court whether the special matter urged is not a complete defense to the action commenced by the bill. It is reducing the defense to a single question, as, for ex- ample, that the action is barred by the statutes of limitation or the statutes of fraud ; that there has been a release of the subject-matter by the plaintiff; that there is another suit pending between the same parties for the same subject-matter, 1 OMphant v. Hartley, 33 Ark. 465. swer." Droste v. Hall. 53 N. J. Eq. - Southern Life, etc. Co. v. Lanier, 68, 39 Atl. 437; Crocker v. Dillon, 133 5 FJa. 110. Mass. 91; Labadie v. Hewitt, 85 111 3 Snook V. Pearsall, 95 Mich. 534. 341; Bell v. Woodward, 43 N. H. 189 The court say: "The objection for Sanborn v. Adair, 37 N. J. Eq. 32 multifariousness, if it has any force, Green v. Richards, 23 N. J. Eq, 33 should have been raised by demurrer. Paine v. Slocum, 56 Vt. 504. We think, too, that the objection for < Hamilton v. Whitridge, 11 Md. want of parties, under the oiroura- 128; Tartar v. Gibbs, 34 Md. 333; stances of this case, should have Hendrickson v. Wallace, 31 N. J. Eq. been raised by demurrer before an- 604. 172 DEFENSES IN EQUITY. [§ 133. a defect of parties, that the bill is multifarious, or any defect or defense based upon a single salient fact which completely answers the case made, and upon which, if found true, the court can base a decree disposing of the bill, if not amended, and the case made by it.^ Judge Story says: "A plea has been usually described to be a special answer showing-, or re- lying upon, one or more things as a cause why the suit should either be dismissed, or delayed, or barred."^ Mr. Adams, in his work on Equity, sums up the matter as follows : " The principle of a defense by plea is, that the de- fendant avers some one matter of avoidance, or denies some one allegation of the bill, and contends that, assuming the truth of all the allegations in the bill, or of all except that which is the subject of denial, there is sufficient to defeat the plaintiff's claim. It is applicable, like a demurrer, to any class -of objections; but the most usual grounds of pleas are: 1. Want of jurisdiction. 2. Personal disability in the plaintiff. 3. A decision already made by the court of chancery, or by some other court of competent jurisdiction, or a suit already pending in a court of equity respecting the same subject. But the suit must be pending in a court of equity. If there be a pending action at law, the proper course is to put the plaintiff to his election by motion, which court he will pro- ceed in. 4. Want of equity, where the equity depends on a single point." ' 1 story, Eq. PI., sees, 649, 650, 651; original complainant having de- Farley V. Kittson, 120 U. S. 303; prived himself of the power to fur- Union Branch, etc. Ey. Co. v. East ther prosecute his action, and the Tennessee, etc. Ry. Co., 14 Ga. 327. truth of the defendants' plea setting 2 Story, Eq. Pi., sec. 649; Mitf. Eq. up that fact being confessed, the PL, by Jeremy, 219; Coop. Eq. PI. court should regard the plea as 823. See also Shipman's Eq. PI. allowed. The rule seems to be set- 377. tied that the allowance of a plea 3 Adams' Eq., marg. p. 336. In Ful- which either constitutes a full de- ton V. Greaoen et al., 44 N. J. Eq. fense to the complainant's whole 443, 15 Atl. 827, the court say: "The case or deprives him of all power to truth of the plea being confessed, further prosecute his action will, if the case stands, so far as the rights he holds an injunction, entitle the of the parties are concerned, sub- defendant to its dissolution. The stantially as though an order had allowance of the plea will not ipso been made allowing the plea. If facto dissolve the injunction, but a mere matter of procedure or form dissolution will generally be granted be put aside, that is, the precise as of course, on motion." Phillips v. present position of the case. The Langhorn, 1 Dick. 148. § ISi.J DEFENSES IN EQUITY. 173' § 134. The plea should contain bnt one defense. — The plea is the pleading adopted to meet the case with a single all-governing question, as "we have seen, and if more than this is incorporated in the plea it becomes subject to the objection that it is a double plea, is informal and multifarious and there- fore bad. It is not the office of the plea in equity to deny the allegations in the bill of complaint, and if it were allowed a defendant by plea to traverse two or more allegations the rule which has always governed pleas would be broken down, for if three or more denials of allegations were allowed, then denials to all the allegations of the bill might be allowed and the defendant would thus intrench upon the office of that other pleading, the answer (which we shall discuss later), and ask the court for a judgment without a trial of the cause, or, at most, a trial of but a portion of it. " For, if two matters of defense may be thus offered, the same reason will justify the making of any number of defenses 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 defenses, with all their circumstances, as alleged by the plea, before they are made out in proof; and, consequently, would decide upon a complicated case which might not exist." ^ In Saltus V. Tobias'^ the chancellor, discussing this question, says: " The question was much discussed before Lord Thurlow in Whitlread v. BrooJchurst (1 Bro. 404, 2 Yes. & Bea. 153, note, S. C), and he held that two pleas, applying to cases of differ- ent natures, and distinct, not only in the form of the plea, but 1 Story, Eq., sec. 653. In Reissner Rairdon Stone Co., 87 Fed. 969. A V. Anness, 3 Ban. & A. 148, Fed. Cas. general denial of particular aver- No. 11,686, it was held that where ments in the bill is insufficient; the more than one point of defense was specific facts must be denied, and relied upon it must be stated by an- the defense reduced to a single point, swer and not by plea, for if it should Mains v. Homer Steel Fence Co., 116 be stated by plea the plea in such Mich. 586, 74 N. W. 735; Manley v. case would be bad for duplicity. Mickle, 55 N. J. Eq. 563, 37 Atl. 738. And in Albany City Bank v. Dorr, And where the bill is based upon Walk. Ch. (Mich.) 317, it was held two theories, a plea setting up a bar that "a plea must rest the defense to a recovery upon only one of the upon a single point, and a plea con- theories is bad. Honor v. Wing taining two distinct points is bad." (Ala.), 31 So. 3. A plea should state some single ob- 27 Johns. 214; Bunker Hill, etc. jection which would be a complete Co. v. Shoshone, etc. Co., 44 C. C. A, defense. Knox Rock Blasting Co, v. 300, 109 Fed. 504. 174 DEFENSES IN EQUITY. [§ 134:. in the point of equity raised by them, were inadmissible. The reason why this court does not admit such pleas, containing dif- ferent and distinct points, is that you may put all the different circumstances together in your answer, which you cannot do at common law. There is, therefore, not the same reason in equity as at law for pleading double. The use of a plea here is to save time, expense and vexation. If one point will put an end to the whole cause, it is important to the administra- tion of justice that it should be pleaded ; but if you are to state many matters, the answer is the more commodious form to do it in. If the defendant might be permitted to bring two points, on which the cause depends, to issue by his plea, he might bring three, or twenty, and so on, until all the matters in the bill are brought to issue by the plea. " The reasoning of Lord Thurlow is supposed to be weighty a,nd decisive; and since that time it has been the constant lan- guage of the court that the plea must reduce the defense to a single point, and that a defendant can never plead double. There is not the same necessity here as at law for this kind of pleading, as the plea is not the only mode of defense." "But the plea is not rendered double by the mere insertion of averments therein which are necessary to exclude conclu- sions arising from allegations in the bill intended to anticipate and defeat the bar which might be set up in the plea." ' And 1 Bogardus v. Trinity Cliurcli, 4 answerdenyingallthemattersstated Paige (N. Y.), 178. "But as the in the bill, as evidence to displace or complainant had stated a variety of defeat the bar set up by the plea; matters in his bill, which, if admit- and, as vras usual with him in such ted to be true, would be evidence to cases, he left the question undecided, counter-prove the allegation of an But Lord Redesdale, whose opinion adverse entry under claim of title, upon a case of equity. pleading is al- and of an adverse holding, it became ways esteemed the highest author- necessary to negative those matters ity, says: "Upon argument of a plea, by gener.il averments in the plea, every fact stated in the bill, and not and to support the plea by an an- denied by the answer in support of swer as to those matters. (Mitf., 4th the plea, must be taken for true. Lond. ed., 240, 271; 1 Brown's Ch. Pr. The plea, therefore, to the relief (of 332, 33S; Sanders v. King, Mad. & a stated account) ought to have Geld. Eep. 65.) In the case of Bailey averred that the accounts settled in- V. Adams (6 Ves. Jun. .598) Lord Eldon eluded all dealings between the par- doubted whether it was necessary to ties; that the accounts were just and insert negative averments in the plea, fair, and that the balance as stated as well as to support the same by an was justly due; and these averments § 135.] DEFENSES IN EQOITY. 175 it may be said, and the rule seems to be, that the plea may contain several averments, provided they all conduce to a single point raised as a defense to the bill.' § 135. The plea differs from a demurrer.— The demurrer, as we have seen, depends upon objections that are apparent upon the face of the bill; and for facts to sustain it it is en- tirely reliant upon the well-pleaded facts therein set forth. But the plea rests upon defects made in the case that do not appear upon the face of the bill, but which the defendant, in order to sustain his plea, must show to the court; it rests upon matters either dehors the bill, or foreign to it, that will delay or bar the suit, or denials of substantial matters set forth in the bill touching the substantial fact which is made the basis of the plea. In the one case, the demurrer, the facts upon which the defense is based, are already shown by the allega- tions in the bill which are taken to be true, while in the other case, the plea, the facts upon which the defense is based, must be proven, and upon them, as we shall see, an issue may be raised between the parties. ought to have been supported by an answer to the same effect,' etc. (Roohe V. Morgell, 2 Sch. & Lef. 726.) Again, in his Treatise on Pleading, he says: ' Nothing can be in issue on the plea but what is contained in the plea; and every charge in the bill, not negatived by the plea, is taken to be true on the argument of tlie plea. (Mitf. PI., 4th Lond. ed., 243. See also Gilb. For. Rom. o8; 3 Johns. Ch. 391.) Indeed, it seems strange that any doubt should ever have ex- isted on this subject; for it is well settled that when issue is taken upon a plea, either in the first instance, or after it has been allowed upon argu- ment, if the truth of the matters pleaded is established, the suit is barred so far as the plea extends. (1 Newl. Pr., 3d Lond. ed., 165; Gilb. For. Rom. 9rj; 1 Mitf. PI. 241.) If, therefore, the defendant was not bound, by averments in his plea, to negative the allegations in the bill. inserted for the purpose of antici- pating and displacing the bar, the complainant would frequently be compelled to rely upon the defend- ant's oath alone for the evidence of the truth of such allegations; and he would have no opportunity to contradict that oath under the issue joined upon the plea. If that course of pleading was adopted the whole plea might be true, although the an- swer in support of such plea was ab- solutely false, and could be proved to be so if an opportunity was af- forded to the complainant for that purpose." 1 Reissner v. Anness, 3 Ban. & A. 148, Fed. Cas. No. 11,686. In Hazard v. Durand (C. C), 25 Fed. 26, it was held that a plea might contain aver- ments of several facts, but they must all conduce to a single point. But see Gilbert v. Murphy, 100 Fed. 161, where the rule would seem to be somewhat enlarged. 176 DEFENSES IN EQUITY. [§ 136- In Farley v. Kittson > the court say : " But the proper ofiBce of a plea is not, like an answer, to meet all the allegations of the bill ; nor like a demurrer, admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of mak- ing the discovery asked for, and the expense of going into the evidence at large." ^ And it has been held that a plea will be overruled which alleges only facts which appear upon the face of the bill and raises only an objection which could have been made by a demurrer, it being the office of a plea to bring forth sufficient matter — facts which do not appear upon the face of the bill." § 136. The plea differs from an answer. — The discussion of the essential difference between the plea and answer will only further emphasize that most essential characteristic of a 1 120 U. S. 303. The court in Far- ley V. Kittson quotes from element- ary authority, giving a history of the subject. "The distinction be- tween a demurrer and a plea dates as far back as the time of Lord Bacon, by the fifty-eighth of whose ordinances for the administration of justice in chancery, 'a demurrer is properly upon matter defective con- tained in tlie bill itself, and no for- eign matter; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismis.sed, or that the plaintiff is out- lawed or excommunicated, or there is another bill depending for the same cause, or the like.' Orders in Chancery (Beanies', ed.), 26. Lord Redesdale, in his Treatise on Plead- ings, says: "A plea must aver facts to which the plaintiff may reply, and not in the nature of a demurrer, rest on facts in the bill.' Mitf. PI. 397. And Mr. Jeremy, in a note to this passage, commenting on the ordinance of Lord Bacon, observes: ' The prominent distinction between a plea and a demurrer here noticed is strictly true, even of that descrip- tion of plea which is termed nega- tive, for it is the affirmative of the proposition which is stated in the bill ; ' in other words, a plea which avers that a certain fact is not as the bill affirms it to be. sets up mat- ter not contained in the bill. That an objection to the equity of the plaintiff's claim, as stated in the bill, must be taken by demurrer and not by plea is so well established that it has been constantly assumed and therefore seldom stated in judicial opinions; yet there are instances in which it has been explicitly recog- nized by other courts of chancery as well as by this court." Billing v. Flight, 1 Madd. 130; Steff v. An- drews, 2 Madd. 6; Variok v. Dodge,. 9 Paige (N. Y., 149; Phelps v. Gar- row, 3 Edw. Ch. 139; Rhode Island v. Massachusetts, 14 Pet. (U. S.) 210,. 258, 263; National Bank v. Insurance Co., 104 U. S. 54, 76. 2 Mitf. PI. 14, 319, 295; Story, Eq. PI. 649, 652. 3 Cozine v. Graham, 3 Paige (N. Y.), 177. § 136.] DEFENSES IN EQUITY. m plea in equity, namely, that it interposes a defense to the case made which is based upon a single point. The answer in equity is the pleading by which the defend- ants meet each allegation in the bill of complaint, either by a denial, an admission, or such statement that would leave the complainant to his proofs. It is by this pleading that the de- fendant makes a general defense upon the merits of the case, not depending upon objections appearing upon the face of the bill, nor upon a single defense or objection by way of a plea. The answer may raise an3' number of points of defense if they are material and pertinent and meet the allegations of the bill. Where the bill of complaint alleged fraud based upon a variety of circumstances, it was held that in such case the defense should be made by answer and not by plea, as the examination in proof of the fraud must still be at large, and the effect of allowing a plea in such case would be to have the judgment of the court on the circumstances of the case before thej'^ were proven.' 1 Carroll v. Potter, Walk.Ch. (Mich.), 355; Coop. Eq. PI. 233. In Loud v. Sergeant, 1 Edw. Ch. (N. Y.) 164, the vice-chancellor said: "The cri- terion by which to determine how far a defense is proper by way of plea is to ascertain whether the cause is thereby reduced to a single point creating a complete bar to the suit. It is true, the matter of a plea may consist of a variety of facts and circumstances, provided they are not inconsistent with each other and all tend to one point, making out one connected proposition sufficient of itself to form a defense to the bill — and not showing separate and dis- tinct defenses, one of which would have been sufficient; for then, the plea will be bad for duplicity. Coop. Eq. 233, 335; Beames' PI. 19, and cases there mentioned. I cannot say the plea under consideration falls within the rule connected with duplicity; because I do not perceive how any of the matters which are 13 pleaded, when taken separately, could constitute a bar or defense to the suit. I am also at a loss to dis- cover upon what principle the whole of the matter taken together can be a bar. It seems to me much more expedient that this defense, if it is to be available, should be taken by answer. The object of a plea is to save the parties the expense and trouble of examining v\'itnesses at large, by putting an end to the suit upon some single ground of defense. Where this defense consists of a variety of facts and circumstances, there can be no saving by a plea; because the examination of wit- nesses must still be as much at large as if the defendant had put it for- ward in an answer; and another reason given in the books is that, by allowing a plea containing such various matter, the court gives judg- ment, in effect, upon the facts and circumstances of the case before they are made out by proof." 178 DEFENSES IN EQUITY. [§ 137. §137. The extent of the plea.— It is a general rule of equity pleading that the defendant must, if he would inter- pose a defense, meet the whole bill either by demurrer, plea or answer, and so the defendant may plead to the whole bill if the single point of defense meets the whole case made by the bill, or he may plead to a part of the bill, answer to a part, or demur to a part; but in such case he must indicate to Avhich part he pleads, to which part he demurs, and to which he an- swers. In Champlin v. ChampUn^ the vice-chancellor said: "It is well understood that the system of equity pleading ad- mits of an answer, plea and demurrer to the same bill; but then they must be to different parts of the bill — the pleader taking care to distinguish the parts to which each pleading applies. The whole of the bill must be met in some form of pleading, either singly or by the several modes of defense combined; still, they must be regarded as distinct pleadings, and each must be made to serve its proper office and purpose, and be a perfect pleading in itself. Although a plea in man}' cases requires an answer to be made to some parts of the bill in order to render it effectual as a bar, and by an answer, as before remarked, the defendant may claim to have the benefit of a demurrer or a plea, yet this is very far from confounding pleadings, and certainly can give no right to substitute one for another; as, for instance, an answer for a demurrer or a plea, and to contain no more than such a form of pleading would require, if adopted. To allow of such a departure from the true course of pleading would be inconsistent with the principles upon which the system is founded." But the plea cannot be made general as a plea to all the parts of the bill which are not answered or demurred to, nor will the defend- ant be permitted to make indefinite and uncertain applications of the pleas to different parts of the bill. Certainty is required in this particular that the court may know by reference to the plea to which particular part of the bill defendant pleads; but the plea may be good in part and bad in part, and the court will apply it so far as it meets the case made by the bill. In this respect it differs from the demurrer. The rule is very clearly stated by Daniell as follows : " A i2Edw. Ch. (N. Y.)362. § 138.] DEFENSES IN EQUITY. 179 defendant may plead different matters to separate parts of the same bill, in the same manner that, as we have seen, a defend- ant may put in different demurrers to different portions of the bill. A defendant may, in like manner, plead and demur, or plead and answer, to different parts of the same bill, pro- vided he points out, distinctl}', the different portions of the bill which are intended to be covered by the plea, the de- murrer and the answer; he must, likewise, where he puts in several pleas to the same bill, point out to what particular part of the bill each plea is applicable. But, although the general rule is, that in the case of a partial plea a defendant must specify distinctly what part of the bill he pleads to, the rule which has been stated, as applicable to a demurrer, namely, that it cannot be good in part and bad in part, is not appli- cable with the same strictness to a plea; for it has been re- peatedly decided that a plea in equity may be bad in part and not in the whole, and the court will allow it to so much of the bill as it is properly applicable to. " The rule that a plea may be allowed in part only is to be understood with reference to its extent, that is, to the quan- tity of the bill covered by it, and not to the ground of defense offered by it; and if any part of the defense made by the plea is bad, the whole must be overruled."' § 138. Necessary averments. — While it is true that the defense by plea must be based upon a single point which meets and is a complete defense to the case made by the bill, it is also a rule that all pertinent and necessary facts which are essential to bring the defense to that point must be set forth in the plea so that the court can determine whether the case which the plea presents to the court is a bar to the case made by the bill, or to that part of the bill to which the defense is aimed. If, for example, the defense sought to be made is by way of release, the plea must set forth sufficient facts and cir- cumstances which, proven to be true, would constitute a re- 1 1 Danl. PI. & Pr. 611. In French may be ordered to stand as to so et al. V. Shotwell, 5 John. Ch. 561, it much of the bill to which it properly ■was held that a plea may be good in applies, and the defendant must an- part and bad in part; but where a swer to the residue. Rhino v. Emery, plea is more extensive than the sub- 79 Fed. 483. ject-matter to which it relates, it ISO DEFENSES IN EQUITY. [§ 138. lease; and so if the defense be that the claim of the plaintiff is barred by the statute of limitations the plea must set forth the facts and circumstances, which, proven to be true, would constitute a bar to the case made by the bill because of the statute of limitations. The rule governing pleas in this respect is the sanae that governs pleadings generally, namely, that the defense sought to be made must be issuable, i. e., so stated that, the facts upon which it is based may be met by the plaintiff by denials or confession and avoidance if he desires to do so. In McClosJcey V. Barr^ the court say: "All the facts nec- essar\'^ to render the plea a complete equitable bar to the case made by the bill (so far as the plea extends) must be clearly and distinctly averred in order that the complainant or plaint- iff may take issue upon them. In a plea in bar the defendant assumes the onus probandi, and must state the case or facts on which he relies with the same clearness that a plaintiff or complainant is required to do when by his suit or bill he tend- ers the defendant an issue. When the defendant undertaices, by plea, setting up matters in pais to bar the complainant, it is just as incumbent upon him to set out the facts on which he relies as it will be incumbent to prove them on the trial of issues tendered. Strictness is demanded in such pleas. Thus it has been held that in a plea of a release the defendant must set out the consideration upon which the release was made in order to make the plea good. So, in setting up the plea of in- nocent purchasers without notice, the plea must contain all the requisites of such a defense, including the payment of the con- sideration." Then, too, for the purpose of determining the issue made by it, the plea admits all the facts alleged in the bill, which are uncontroverted, to be true; it would therefore follow that the plea would be overruled if there are such un- controverted facts which would destroy its effect. " It is now firmly established that the plea itself, as well as the answer, must contain averments negativing the facts and circum- stances set up in the bill in avoidance of the bar or defense^ for otherwise the plea will not amount to a complete defense 138 Fed. 165; Seoombe v. Campbell, 18 Blatchf. (U. S.) 108. § 139.] DEFENSES IN EQUITY. ISl to the bill, since the denial of those facts and circumstances is in truth the only point in controversy.'" In Kane v. Bloodgood"' the chancellor said: "A pure plea of the statute (of limitations) is no bar, where there are cir- cumstances stated in the bill which take the case out of it, as an offer to account, an acknowledgment of the debt, a prom- ise to pay, or to do what was right and just, or a promise to pay when assets came to hand, unless the plea be accompanied with an averment or answer destroying the force of these circumstances." § 139. A division of pleas based npou facts alleged. — De- pending upon the facts alleged in the pleadings and the source from which they are derived, pleas have been classified as (a) pure pleas, (b) negative pleas, or pleas not pure, and (c) anomalous pleas. (a) A pure jplea is one which sets up a defense to the bill based upon matters of fact outside of the bill of complaint; as, for esaraple, admitting the facts as stated in complainant's bill, the defendant by his plea alleges that there has been a release of the claim upon which the complainant relies which renders it entirely nugatory ; or that there has been a settle- ment of the entire claim and full payment of the amount found to be true. This plea is one which relies wholly " on matters dehors the bill."^ A pure plea, as every other plea, must rely upon some single point of defense. "While it may set up matters of fact outside of the alleged facts in the bill, it must confine the defense to a single point, and if it is found necessary to employ a variety of facts not tending to the gen- 1 Story, Eq. PI. 680. And where the paid, yet if it be not in fact paid, defendant s plea was that he wa.s a before notice, the plea of a purchase bona fide purchaser without notice for a valuable consideration will be the court held that "the averment overruled." Jewett v. Palmer, 7 must be not only that the purchaser Johns. Ch. (N. Y.) 64; Souzer v. De- had not notice, at or before the time Meyer, 2 Paige Ch. (N. Y.) 574; 1 of the execution of the deeds, but Danl. Ch. PI. & Pr. 612; Kane v. that the purchase-money was paid Bloodgood, 7 Johns. Ch. 90, 134. before notice. There must not only 27 Johns. Ch. (N. Y.) 90, 134; Pom- be a denial of notice before the pur- fret v. Windser, 3 Ves. Sr. 485; Bail- chase, but a denial of notice before lie v. Sibbald, 15 Ves. Jr. 158. payment of the money. Even if the ^ Story, Eq., sec. 651. purchase-money be secured to be 1S2 DEFENSES IN EQUITY. [§ 139. eral fact or point of defense, the defendant cannot meet the case by plea but must employ an answer. "The office of a plea generally," said Lord Eldon, " is not to deny the equity but to bring forward a fact which, if true, displaces it; not a single averment . . . but perhaps a series of circumstances, form- ing in their combined result some one fact which displaces the equity."' There are certain rules or requisites applicable to pure pleas that are more or less required in every pleading. The plea must be clearly and distinctly stated, and facts averred that vrill render the plea a complete equitable defense to the case made by the bill, or to that part of the case to which the plea is made to apply. The averment must support the plea, as was said by the chancellor in Allan v. Randolph? "A plea must be perfect in itself, so that if true in point of fact there may be an end of the cause." It should be direct and positive and not argumentative, and the defense raised should be effective as a bar to the case made by the bill, or that por- tion of it to which it is directed, and based upon issuable facts, so that the plaintiff may meet them if he desires to make an issue upon them.' (5) Negative pleas, or pleas not pure. These are based upon the denial of some single salient fact alleged in the bill of com- plaint, and upon which the complainant's case depends; as, for example, a denial of the plaintiff's interest in the subject- matter of the suit, that he is the owner of the property in ques- tion as alleged in his bill.* (o) Anomalous pleas are pleas that are used to meet allega- tions in the bill made in anticipation of the defense; as~ for example, where the complainant in his bill anticipates that the 1 Rowe V. Teed, 15 Ves. 377, 378. would notprotectthedefendantfrom 24 Johns. Oh. 694. giving the required discovery, be 3 Story, Eq. PI., sees. 660-664. cause, on a principle which has been < Negative pleas "are applicable already explainod, a defendant who when the plaintiff, by false allegation answers at all must answer fully, on one point, has created an appar- In order, therefore, to avoid such dis- ent equity, and asks discovery as con- covery, he must resort to a negative sequent thereon; for example, where plea, denying the allegation of part- he alleges himself to be a partner or nership or heirship; and until the heir-at-law, and asks for an account validity of his plea is determined, he of the business or particulars of the will be protected from giving dis- estate. In this case a denial by an- coveryconsequent on the allegation." swer would exclude the relief, but it Adams' Eq., marg. p. 337. §§ 140, 141.] DEFENSES IN EQDITT. 183 defendant will meet his claim by a claim of release, and alleges that the release was obtained by fraud. In such case the de- fendant pleads affirmatively the release and answers the alle- gations of the bill in his plea by denying the fraud or equity charged in avoidance of the release. It is important in this class of pleas that the defendant should set out his case by af- firmative averments; as, for example, that the release was actually executed or given, as well as by denial of the allega- tions of avoidance contained in the bill of complaint. "The term anomalous is applicable to such plea, because it does not tender an independent issue, but sets up anew the impeached defense, with averments in denial of the impeaching equity."^ § 140. Admissions by the plea. — By its very nature the plea must be held to admit every well pleaded fact in the bill of complaint which it does not controvert. As we have seen, it bases the defense made by it upon a single point, and there are therefore but two questions to be determined. (1) Are the allegations of fact upon which it depends true? (2) If the alle- gations are true, then are they sufficient in law to constitute a defense to the bill of complaint, or to that part of the bill to which the plea is aimed? ISTo other questions are involved; the defendant admitting all the allegations not controverted by the plea contends that the relief prayed in the bill, because of the plea interposed, cannot be granted. In Hurlbut v. Britain'^ the chancellor said: "Is the plea proved? When a replication is filed, the truth of the plea is the only question to be tried, and, if established, it is a bar to so much of the bill as it professes to cover." The admission that is made by the plea, however, is only for the purpose of the hearing, and if the plea is controverted the court will allow the defendant, so far as is equitable and for the ends of justice, to answer the bill, provided always that the answer cannot be inconsistent with the allegations of the plea. § 141. The plea overruled by answer. — The plea is sub- stantially a reason or excuse of the defendant for not answer- 1 Adams' Eq., marg.'p. 338; MoDon- Miller, 5 Paige (N. Y.), 36; Bogardus aid V. Salem, etc. Co., 31 Fed. 577; v. Trinity Church, 4 Paige (N. Y.), McCloskey v. Barr, 38 Fed. 165; Hil- 178; Dows v. MoMiohael, 6 Paige ton V. Guyott, 43 Fed. 349. (N. Y.), 139. 2V^alk. Ch. (Mich.) 454; Fish v. 184 DEFENSES IN EQUITY. [§ 142. ing the bill of complaint, and so if the defendant answers the bill he waives the excuse for not doing so. In Souzer v. De Meyer ^ the chancellor said: "It is a well settled principle of equity pleading that the defendant cannot plead and answer, or plead and demur, as to the same matter. If he pleads to any part of the bill, he asks the judgment of the court whether the matters of the plea are not sufficient to excuse him from answering so much of the bill as is covered by the plea. There- fore, if he answers as to those matters which by his plea he has declined to answer, he overrules the plea; and if he demurs to any part of the bill, and also puts in a plea, which is a spe- cial answer to the same part, the demurrer is overruled." x\nd so the defendant must exercise great care in not extending the answer, if he is answering a part of the bill, to that part to which he has interposed a plea, for, if he should, the answer would, upon an argument, be held to overrule the plea.^ This, however, is to some extent regulated by rule in the United States court. It is by rule provided that " no demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea." ' Because of the equity rule the court, in Mercantile Co. v. Mis- souri, etc. R. Co.,^ held that the plea would not be stricken out where it did not go to the whole bill, but, covering the same ground as the answer, showed a different ground of defense. § 142. Pleas to the relief. — Pleas which go to the relief sought may be divided into two general classes: First. Pleas in abatement; and Second. Pleas in bar. While this division is not generally adopted by writers upon 1 3 Paige (N. Y.), 574, 576. In Chad- are to be answered; but on the other wick V. Broadwood, 3 Beav. 309, Lord hand, if they are not material for Langlade said: the rule may be that purpose, you are not to answer stated thus: "You are to answer them, for by so doing you overrule everything charged in the bill which your plea." Story, Eq. PI., sec. 688. if true would displace the plea, and ^ Brownell v. Curtis, 10 Paige (N. this you must do whether the bill Y.), 210; Bruen v. Bruen, 4 Edw. Oh. does or does not expressly charge (N. Y.) 640. those matters to be evidence of the ' U. S. Eq. Rule 37. facts. If they are material for the *84 Fed. 879. purpose of displacing the plea, they § li2.] DEFENSES IN EQCITY. 185 this subject, it is recognized and it seems to be clearly a proper classification. Judge Story points out the analogy between the generally adopted classification of pleas and the classifica- tion known to the civil law, and says:' "But the more exact division of exact division of exceptions is into three kinds: (1) declinatory, corresponding to our pleas to the jurisdiction; (2) dilatory, corresponding to our pleas to the person; and (3) peremptory, corresponding to our pleas in bar ; quce perirmtnt jus adoris. The two former were always put in before the suit was put in contestation, ante litem contestatum; for they were before the prtetor, as reasons why he should not pro- ceed in the cause to assign judges for his decision. "All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement; and therefore, in general, the objections founded thereon must be taken ante litem contestatum by plea, and are not available by way of answer, or at the hearing. And it has been said that pleas of these several kinds must be success- ively pleaded, one after another, in their proper order; that is to say, first, declinatory pleas; secondly, dilatory pleas; and, thirdly, pleas in par. For, it has been said, that although no man shall bo permitted to plead two dilatories at several times, nor several bars, because he may plead them all at once, yet, after a plea to the jurisdiction, he may be admitted to plead in bar; because it is consistent with those pleas to plead in bar at the same time." Daniell quotes from the discussion of some of the other authors and says: ^ "It appears to be the opinion of Mr. Beames that pleas in equity are primarily divisible into : pleas in abatement, and pleas in bar. He observes that, ' in a work on pleading at law, pleas are thus described: Pleas are of two sorts — in abatement and in bar; the former question the propriety of the remedy, or legal suflficienoy of the process, rather than deny the cause of action ; the latter dispute the very cause of ac- tion itself ; and that it is impossible to read this passage without perceiving how perfectly applicable it is to pleas in equity, and how strongly appropriate, as marking the distinction be- tween pleas to the jurisdiction, to the person, and the bill, and I Story, Eq. PI. 707, 708. 2 1 Danl. Ch. PI. & Pr. 626. 186 DEFENSES IN PJQTJITY. [§ 142. pleas in bar. The three former classes, while they question the propriety of the particular remedy or of the suit, tacitly concede the existence of a cause of suit; but the latterdispute the very cause of suit itself." Lord Thurlow, however, is quoted as saying that he did not know what a plea in abate- ment in equity was,' but it seems to have been used in the English cases frequently, and even by Thurlow himself.'^ 1 Mei-rewether v. Mellish, 13 Ves. Jr. 485, 437. 2 Newman v. Wallis, 3 Bro. C. C. 148; Gun v. Prior, 1 Cox, 198. Story, in note 1, section 708, of his work on Equity Pleading, quotes Mr. Beames' work on Pleading in Equity (57-60) as follows. Speaking of pleas in equity of a declinatory and dilatory nature, he 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 cer- tainly uses the terra plea in abate- ment as a term well known in equity; and it occurs in a number of other books, some of which are of consid- erable reputation. Lord Hardwioke, in the passages we have just quoted, uses it as familiar to his hearers. The attorney-general, in the anony- mous case in Mosely, employs it in a similar manner. And what is more remarkable, Lord Thurlow himself repeatedly uses the term 'plea in abatement,' in contradistinction to a plea in bar, in the cases of Newman V. Wallis and G-un v. Prior, and acknowledges, as .strongly as lan- guage can acknowledge, the strong lines of distinction between them. It has been said that a plea in equity to the person is more properly in the nature of a plea in abatement. It is not necessary to discuss this distinc- tion ; but it may merely be remarked that Lord Redesdale, in speaking of certain pleas to the person, describes them, not as pleas in the nature of pleas in abatement, but as pleas in abatement of the suit. If it be nec- essary to add anything more on this subject, it may be observed that, in a work on pleading at law, pleas are thus described: 'Pleas are of two sorts — in abatement and in bar: the former question the propriety of the remedy, or legal sufficiency of the process, rather than deny the cause of action; the latter dispute the very cause of action itself.' It is impos- sible to read this passage without perceiving how perfectly applicable it is to pleas in equity, and how strongly appropriate, as marking the distinction between pleas to the jurisdiction, to the person, and to the bill, and pleas in bar. The three former classes, whilst they question the propriety of the particular rem- edy, or the suit, tacitly concede the existence of a cause of suit. But the latter dispute the very cause of suit itself. That the mere term, plea in abatement, as contradistinguished to the term, plea in bar, is not of that familiar phraseology in courts of equity, or in books relating to their pleadings, as it is at law, may easily be conceded. But that, sub- stantially speaking, pleas in abate- ment are known in equity, as well as at law, cannot, I think, success- §§ 143, 144.] DEFENSES IN KyUITY. 187 First. Pleas in Altatement. % 143. Pleas in abatement defined and classified.— Pleas in abatement are those which do not deny the cause of action claimed and set forth in the bill of complaiat, but dispute the power of the court to take cognizance of the cause, either be- cause of the subject-matter of the controversy or its right to hear, try and determine the particular case made by the bill ; as, for example, a plea to the jurisdiction does not dispute the right of the complainant in the subject-matter of the suit, but it claims that the court of equity cannot take cognizance of the claim set up; or, admittmgthe jurisdiction, claims that the suit should abate because the plaintiff does not possess a suffi- cient legal interest in the subject-matter to entitle him to pros- ecute the suit. Or that the right to hear, try and determine the cause is in some other court of equity. Pleas in abatement may be classified as: ^ {a) Pleas to the jurisdiction. (h) Pleas to the person of the complainant or defendant. {c) Pleas to the bill. § 144. (a) Pleas to the jurisdiction. — The objection that the court has no jurisdiction to hear and determine the cause should be taken advantage of before answering the bill of complaint and going to hearing upon the merits, because, by answering the bill and going to hearing, jurisdiction is con- ceded and the objection cannot be taken advantage of, except it be a case where the court has no jurisdiction whatever under any circumstances that may arise. If the court is en- tirely without jurisdiction, such an objection can be taken at the hearing or at any time during the pendency of the case- fully be disputed. It may be said 40 Conn. 478, 484, the court say: that at best this is a mere dispute " We do not sanction the claim that about terms, and that no material the objection that there is adequate advantage in the elucidation of the remedy at law should in all cases be subject can be derived from ascer- taken by a plea to the jurisdiction, taining whether pleas in abatement, When the legal remedy is obvious, in their strict sense, or pleas in the and it is apparent to the court that nature of pleas in abatement, are there is a defect of power to proceed known in equity." in equity, the court may, of its own 11 Danl. Cli. PI. & Pr. 626, 627; motion, disnaiss the bill. When the Story, Eq. PI. 707, 708. question is in doubt, and there has 2 In Hine v. City of New Haven, been a trial upon the merits, the 188 DEFENSES IN EQUITY. [§ 144. If the objection is apparent upon the face of the bill it should be raised by a demurrer; if not, by plea. The objection that the court has no jurisdiction may arise from three reasons:' (1) That the cause of action set up in the hill is not within the equitahle Jurisdiction, either exclusive, concurrent or auxiliary. As, for example, it may be a case of a purely legal right with a purely legal remedy, one for which the equity court has no remedy. This plea does not claim that the plaintifiF has no rights to be redressed or that he has no remedy, but urges that there is no remedy known to the court of equity which can be applied to the case made by the bill. (2) That the case m,ade is an equitable one ; that the parties have the right to litigate in a court of equity, but that they have no right to litigate in this particular court where theiill is filed. As, for example, where the bill is filed in the United States court, claiming jurisdiction because of the allegation that the parties complainant and defendant are residents of different, states, the defendant can plead to the jurisdiction of the court, alleging in his plea and showing by proof that the parties are not residents of different states, but of the same state.^ And so any other fact necessary to confer jurisdiction alleged in the bill may be controverted by a plea. (3) That the case made is an equitahle one, and the parties .have the right to litigate in the equity court hut not in the court xohere the hill was filed, for the reason that there vms at the time of the filing of the hill another suit pending in the same or another court hetween the same parties for the same subject-mat- ter which will fully settle the controversy hetween the parties. It is a rule of pleading, generally applying to pleas in abatement, that the defendant must give to the plaintiff a better plea, and it seems that this rule applies where objection is made to the jurisdiction. In an early case in the English court, Earl of Derby v. Duke of Athol,^ this question was discussed and the rule laid down. •court will not, of its own motion. Vt. 470; Emerson v. Western Union dismiss the bill for that cause, nor Ry. Co., 75 111. 176; Campbell v. will the objection, then taken for Crawford, 63 Ala. 393. the first time by the respondent, be 2 Sharon v. Hill, 36 Fed. 337. ■regarded with favor." Chipman v. ^ 1 Ves. Sen. 202; Beames' Treatise City of Hartford, 21 Conn. 488. on Pleas in Equity, 89, 90. 1 Bank v. Rutland, etc. Ry. Co., 28 § 145. j DEFENSES IN EQUITY. 189' The chancellor said: "And the rule is insisted on that who- ever pleads to the jurisdiction of one of the king's superior courts of general jurisdiction must show what other court has jurisdiction. I am of that opinion ; and that for the want thereof the plea is bad and ought not to be allowed if nothing more is in the case; as it is expressly laid down and agreeable to the general rule of pleas of this sort, as in the pleas of abatement, wherein it must be shown the plaintiff may have a better writ. The reason of this is that, in suing for his right, a person is not to be sent everywhere to look for a jurisdic- tion, but must be told what other court has jurisdiction; or what other writ is proper for him; and this is a matter of which the court where the action is brought is to judge." §145. (b) Pleas to the person .^(1) To the party complain- ant. As we have seen,' the parties to the bill must be the real parties in interest, and so a person who has no interest in the subject-matter of the controversy cannot be a party complain- ant. The person having the real beneficial interest in the sub- ject of the suit must file the bill. So, an assignor cannot file a bill in the interest of the assignee, nor can the president of a corporation bring an action upon a contract or interest be- longing to the corporation. And where the person who pos- sesses the real interest is under legal disability, as an infant or married woman, an idiot or insane person, the bill can only be filed by proper persons in their behalf. Should this inca- pacity appear upon the face of the bill, the defendant may raise the question by demurrer; if it does not so appear but actually exists, it may be met by plea. A plea in equity raises an issue of fact to be determined by evidence adduced by the parties to the suit; therefore it is a requisite attaching to pleas that the objection raised shall be clearly and concisely stated by the defendant, giving to the complainant the benefit of the objection made. And it has been held that where the defend- ^Ante, §§ 51-55. In Wallace v. be allowed. The complainant has Dunning, Walk. Ch. (Mich.) 416, the put himself out of court by parting complainant, before the answer was with his interest in the mortgage. filed and after filing his bill, assigned Defendant has a right to object that all his interest in the mortgage that the party in interest is not before he was seeking to foreclose, and the the court." Mills v. Hoag, 7 Paige defendant filed a plea stating that Ch. 18; Field v. Maghee, 5 Paige Ch. fact. The court say: "The plea must 5.39. 190 DEFENSES IN EQUITY. [§ 1J5. ant objected by plea in abatement that the complainant was at the time of the commencement of the suit non compos men- tis, and therefore incapable to sue, but failed to allege that he had been so found by proper authority, the plea was held to be bad. The court, in its opinion, said : ^ " The proper prac- tice in such a case is by an application to the court to strike the bill from the files because it has been filed without author- ity, owing to the mental incapacity of the complainant, or to apply for a stay of proceedings until a committee or next friend may be appointed. The court can then ascertain whether there is any reasonable foundation for suspending the progress of the suit. It would be intolerable to permit a defendant, whenever so disposed, to challenge the mental capacity of a complainant bj' a plea, and the practice might lead to grave abuses." Not only may want of capacity in the plaintiff to sue be made the subject of a plea in abatement, but a want of title to the character assumed in the bill of complaint may be met b}' plea. As, for example, if the plaintiff files his bill as an executor or administrator of an estate, and he does not possess the character assumed, it not appearing upon the face 1 Dudgeon v. Watson, 33 Fed. 161. so made it canpot now be oonsid- Hoyt V. Hoyt, 58 Vt. 538, held that: ered." Mitf. Eq. PI. 184; 1 Danl. C)i. "Objections to the competency of a Pr. 52-84; Story, Eq. PI., sec. 735. party to maintain a suit are in the In Ines v. Evans, 3 Edw. Ch. (N. Y.) nature of pleas in abatement of the 454, where it was held that a naked process, and, viewed in that light, it negative plea was not sufficient to is obvious that the objection should deny a partnership where the bill be presented as a preliminary ques- stated an agreement, which was not tion, so that it may be disposed of denied, that the complainants were before the parties are put to ex- respectively to have a cei'tain per- pense in further litigation. If it centage or share of the net profits of appear upon the face of the bill that the business, the court holding in the orator is incapable of instituting that case that such an agreement the suit, the defendant may demur; might not constitute a partnersliip but if the incapacity does not so ap- inter se, and therefore the plea might pear the defendant must take advan- be true and yet the complainants tage of it by plea. , In Wade v. Pul- might be entitled to an account of sifer, 54 Vt. 45, it was held that the the proflits of the business upon tlie objection of multifariousness must footing of the agreement for com- be taken by demurrer and could not pensation for their services; that to be made by answer. The objection me.t the question the plea should to the competency of the orator have met the case made by the bill should have been made by plea and and denied the agreement in order before answer; and not having been to be sufficient. § 145.] DEFENSES IN EQUITY. 191 of the bill, the question may be raised by a plea in abate- ment.* (2) To the party defendant. We have already discussed to some extent in previous sections who may be made parties de- fendant in the equity bill.^ A defendant must have an inter- est in the subject-matter of the controversy which would at least make him liable-to the demands of the plaintiff. And where one is made a defendant who has not such an interest in the subject-matter as would support a decree, that fact ap- pearing upon the face of the bill would render the bill liable to a demurrer, or existing, but not appearing upon the face of the bill, to a plea. In Piummer v. May ^ a bill was brought by an heir at law against the subscribing witness to discover the circumstances of the execution of a will. The lord chancellor in rendering the opinion said: "The principle is right that you cannot make one a defendant to a bill who is merely a witness, in order to have a discovery of what he can say to the matter, though he is properly examinable as a witness; which would be very mis- chievous and give an opportunitj'^ to collect evidence any way to contradict and encounter that; and if that was barely the present case, I should at once allow the demurrer. But as against a party interested, the plaintiff is entitled to have a discovery from him, if he is charged to be concerned in the fraud in obtaining it; and it is not his being made a witness 1 Simons v. Milman, 2 Simon's Ch. accouple — that is to say, a plea that 241; Roberts v. Madocks, 16 Simon's the plaintiff and her supposed hus- Cli. 55. "So. wliere a plaintiff en- band were never lawfully joined in titled himself as administrator in the matrimony — would be a good plea, bill, a plea that the supposed intes- So, to a bill brought by an executor tate was living was held good. So, before probate of the will, a plea a, plea to a bill by a plaintiff, claim- that the will has not been proved ingas heir, that the plaintiff is not would be good. So, if a feme covert heir, has been held good. So, if a should sue alone in her own name, plaintiff should sue as a partner, a the coverture may be pleaded in p'ea that he is not a partner would abatement. So, a pleathat the plaint- be good. So, to a bill by a plaintiff, iff, or one of the plaintiffs, is a ficti- as a creditor of an estate, a plea that tious person, or was dead at the com- he is not a creditor, and that the de- mencement of the suit, would be a ceased was not indebted to him, good plea in abatement of the suit.'' would be good. So, if a person should Story, Eq. PI., sec, 727. sue as plaintiff, in the character of a -Ante, §g 56, 57, 58. -widow, for dower, a plea otne unques ^ 1 Ves. Sen, 426. 192 DEFENSES IN EQ0ITY. [§ l-i6. that will prevent this discovery." • And where the bill has been filed against a person whom it alleges is an executor or administrator, or described as one occupying a certain relation which he does not sustain, in such case it would be a good plea that the defendant does not bear the character which is al- leged in the bill. The like rule will apply to a defendant who had become a bankrupt before the suit brought, all his inter- ests in the subject having passed to his assignee. § 146. (c) Pleas to the bill.— These pleas do not question the jurisdiction of the court, or the right of the parties com- plainant to bring the action, or the liability of the defendant as claimed in the bill, but contend that the particular bill can- not be sustained, and cannot support a decree, for the reason, (1) that there is another suit pending in a court of equity for the same subject-matter; (2) that the bill is defective for want of proper parties; (3) that the bill filed institutes an action based upon only a portion of the subject-matter of the con- troversy ; (4) that the bill is multifarious in that it joins distinct matters in one suit. (1) That there is another suit pending in a court of equity /"or the same subject-matter. This plea is analogous to the plea in common-law courts of another action pending. It must show the pendency of the former case; in what court it was com- menced and is now being carried on; its general nature and the relief prayed ; that it is for the same subject-matter, and that the bill is filed for the same object; that the relief prayed for in the former suit is the same as in the bill to which the plea is interposed, and if granted will meet the purpose for which the bill is filed. It is not requisite that the former case be between precisely the same parties, for there may have been transfers of interest since the filing of the former bill. IE the bill is founded upon the same equity, brought by the same person or his representatives, or persons claiming under him, and for the same right, praying for the same relief, the plea will be sustained. In Griffing v. Griffing Iron Co? the court say : " A plea of iMitf. Eq. PI., by Jeremy, 335; Ewen v. Broadhead, 11 N. J. Eq. 189. Coop. Eq. PI., sec. 250; Story, Eq. PI. The defendant in pleading the pend- 7b4. ency of a former suit may content 261 N. J. Ch. 269, 48 Atl. 910; Mc- himself with stating the pendency § 146.] DEFENSES IN EQUITY. 193 this sort was formerly required to expressly aver that another suit for the same matter, to the same effect, and for like relief, was still pending in some court of equity. Such a general averment would doubtless be now sufficient. A plea with only general averment of this sort could not be safely replied to, and the practice was to refer it to a master to report whether the two suits were for the same matter, and whether the first suit was yet pending. When such a plea is set down for argument, and the proceedings of the former suit are ex- hibited before the chancellor, either by the averments of the plea or otherwise, he may determine the matter without the delay of a reference. It has, however, been settled in this state that the express averment that the two suits are for the same subject-matter need not appear in the plea, provided that it states facts that clearly indicate that they are so. The plea before me does not expressly aver that the pending suit which it describes is for the same matter as is the subject of this bill. It is, then, requisite to examine with care the aver- ments of the plea to discover whether its description of the former and pending suit is clearly shown thereby to be for the same subject-matter. Here it is to be noticed that the present suit seeks no decree against the defendant which has inter- posed this plea; yet it is obvious that the relief sought will, in fact, affect that defendant. If, therefore, it can show that the relief sought, so far as it affects it, has been sought directly from it in a suit still pending, it seems that such a defendant may interpose the bar of a pending suit." The question whether another suit pending in a court of law for the same subject-matter is an objection that can be taken advantage of by a plea has been more or less discussed by the courts and the writers upon this subject, and it has been laid down as an established rule that such a plea is barred and un- available in equity.^ It is difficult to understand how such a condition could exist, for certainly if upon the face of the bill it should appear that the action in the law court would give and object of the former suit, and 2 Danl. Ch. PI. & Pr. 660; Story, aver that the present suit was Eq. PL, sec. 743; Meeker v. Marsh, brought for the same matter. Davi- 1 N. J. Eq. 198, 203; Da Costa v. Dib- son's Ex'rs v. Johnson, 16 N. J. Ch. ble, 40 Fla. 418, 24 So. 911. 112, 114; y Danl. Ch. PI. & Pr. 20-30; i Story, Eq. PL, sec. 743. 13 194 DEFENSES IN EQUITY. [§ 146. full and complete remedy to the parties, the bill would be sub- ject to a demurrer, for the equity court would have no jurisdic- tion, and necessarily the case set forth in the bill would deter- mine whether the object and purpose of the equity case was the same and would result in the same relief. If the merits of the equity case could not be tried and determined in the law case — if afurther, broader, and more complete relief could be given by the equity case than could be given the parties in the law action, — then the court would not permit the equity bill to be set aside or superseded by the law case, for in such case the action and object of the action could not be said to be the same.^ 1 A case that would seem to illus- trate this question to some extent is that of John Hancock Ins. Co. v. Dick, 114 Mich. 337, where the su- preme court of Michigan refused to sustain a demurrer for want of equity, and because there was adequate remedy at law in a suit pending upon an insurance policy, and in which the parties had joined issue, grounding the refusal upon the prin- ciple that complainant prayed in the bill not only to be relieved of pay- ment of the policy, but that it be de- livered up for cancellation, and the receipts reinstating the policy be de- livered up. The court say: " There is no doubt that the alleged fraud, if proved, should defeat the claim of the plaintiff to any sum beyond the paid-up value of the policy in a court of law. Such court could not, however, have canceled or com- pelled the surrender of the renewal receipt, though there is force in the suggestion that such cancellation would be of little importance after an adjudication that it was void. It is urged that the case falls within the general rule that equity has no jurisdiction where there is an ade- ([uate remedy at law, especially when the latter has been resorted to by the opposite party. Counsel for defendant cites two cases decided by the federal courts, which sustain his contention, under circumstances closely resembling the situation in this case. These decisions are based upon the sixteenth section of the federal judiciary act, which provides that 'suits in equity shall not be sustained in the courts of the United States in any case where a plain, adequate and complete remedy may be had at law.' Rev. Stat. U. S., sec. 723. We have no similar statute, and we are cited to several cases which sustain the jurisdiction of chancery, even .after action at law is com- menced." Insurance Co. v. Bailey, 13 Wall. (U. S.) 616; ^tna Life Ins. Co. v. Smith, 73 Fed. 318. The pendency of a suit in a foreign court, or in the court of the United States, it has been held, cannot be pleaded in abatement, or in bar to a suit for the same cause, in a state court. Mitchell v. Bunch, 2 Paige Ch. 606; Hatch v. Spofford, 22 Conn. 485, 495. And a pendency of a prior suit at law in a state court has been held not to be a bar to a suitin the cir- cuit court of the United States, or in the supreme court of the District of Columbia, by the same plaintiff against the same defendant for the same cause of action. Stanton v. § 146.] DEFENSES IN EQUITY. 195 (2) That the hill is defective for want of proper parties. It has been often said that the court of equity seeks to do full and complete justice and settle in the one pending suit the entire controversy between the parties; to accomplish this, all persons whom the decree of the court would in any way legally and materially affect must be before the court that they may be subjected to its decree. If upon the face of the bill it is apparent that there are such interested persons who are not made parties to the bill, the objection, as we have seen, may be taken by demurrer; but if it does not so appear, and the facts can be shown to the court by proof, the defend- ant may raise the question by a plea of want of necessarj' jjar- ties.^ "Although a plaintiff may be fully entitled to the relief he prays," says Judge Storj'^, " and the defendant may have no claim to the protection of the court, which ought to pre- vent its interference, 3'et the defendant may object to the bill, if it is deficient 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 par- ties goes both to discovery and relief, where relief is prayed, although the want of parties is no objection to a bill for a dis- covery merely." - In Case v. Minof^ the court say: " The objection of want of parties, when taken by plea or answer, should give the names of the necessary parties where this can be done, and especially where it is peculiarly within the knowledge of the defendants." (3) That the Ijill filed institutes an action Itased upon only a portion of th; suhject-matter of the controversy. This involves the question of multiplicity of suits, which the court of chancery Embrey, 93 U. S. o4b; Smith v. Latli- 29 Fed. 733; Parker v. Parker, Walk. rop, 44 Pa. St. 326, 328 ; Oneida County Ch. (Mich.) 457. Bank v. Bonney, 101 N. Y. 173; Hoi- 2 story, Eq. PI., sec. 745. lister V. Stewart, 111 N. Y. 644; Rueg- » 158 Mass. 577, 587; Story, Eq. Pl„ ger V. Indianapolis, etc. Ry. Co., 103 sees. 236, 238, 543; Merre weather v-. 111. 449; Pierce v. Feagans, 39 Fed. Mellish, 13 Ves. Jun. 435; Cook v. 587. ThepenJency of asuitin equity Manoius, 3 Johns. Ch. 437. In At- has been held not generally good torney-General v. Jackson, 11 Ves. ground for a plea in abatement to an Jun. 365, held, that it was not neces- action at law. Mattel v. Conant, 156 sary to name the parties if they are Mass. 418. so described as to enable the plaintiff 1 Ante, %% 48, 114; Howth v. Owens, to make them parties. 196 DEFENSES IN EQUITY. [§ l^'- abhors, and so it is a general rule tiiat a court of equity will not allow the splitting of causes of action; and where it is ap- parent upon the face of the bill that the bill filed does not em- brace the whole subject-matter in controversy, but only a por- tion of it, it will be subject to demurrer; and if it does not appear upon the face of the bill, but is thus deficient, it will be the subject of a plea. This subject has already been fully dis- cussed.i (4) That the hill is multifarious in that it joins several dis- tinct ynatters in one suit. Multifariousness has already been discussed. 2 Generally this defect will appear upon the face of the bill, and in such case the advantage may be taken by demurrer; but if the bill is so ingeniously drawn that the de- fect is hidden and cannot be taken advantage of by a demurrer, it may be raised by a plea to the bill setting forth the facts which necessarily show the court that the bill is multifarious in that it joins and confounds several distinct matters in the same bill. Second. Pleas in Bar. § 147. Nature and definition.^ Whenever it can be shown that there is no right claimed by the plaintiff in his bill that can be made the subject of an equitable action, or that there is some existing fact which is a complete and perpetual bar to the right claimed in the bill, advantage may be taken of it by a plea in bar. A plea in bar is one which interposes some salient all-governing objection to the bill of complaint and the case made by it which completely and perpetually bars the action. " Whatever destroys the plaintiff's suit and disables him forever from recovering may be pleaded in bar."^ The averments of the plea must be positive and distinct, and clearly show that the plea is a complete, equitable and legal bar to the case made by the bill.* These pleas raise no question as to the 1 Ante, § 113; Story, Eq. PI. 746. of sufficient parties, since its tend- " The plea of multiplicity of suits, ency is to multiply the litigation." This objection also may be taken by 2 Ante, § 30. way of plea, for it is against the ' Beames on Pleadings, 160; 1 DanL whole policy of courts of equity to PI. & Pr. 638. encourage multiplicity of suits. In- ^McCloskey v. Barr, 38 Fed. 165. deed, this constitutes one main A plea may be set aside if it does not ground of the objection of the want set up a bar to every equitable claim §§ 14S-15U.] DEFKNSES IN EQUITV. 197 jurisdiction of the court, nor as to the parties plaintiff or de- fendant, or their claim of interest in the subject-matter, or the liability of the defendant to the complainant; but the ques- tion is one arising because of additional or other circumstances which are set out in the plea and claimed to be a complete bar to the relief or assistance prayed for in the bill of complaint. § 148. Pleas in bar are of three kinds. — The general classi- fication of pleas in bar is dependent on the facts relied upon as a bar to the action, and is as follows: First. Pleas founded upon some bar created by statute. Second. On matters of record. Third. On matters in jxds.^ First. Fleas Founded Upon Some Bar Created hy Statute. § 149. Pleas, how divided, — Pleas in bar founded upon some bar created by statute are subdivided into: {a) Pleas of the statute of limitation. (5) Pleas of the statute of frauds. (c) Pleas founded upon any statute, private or public, which may be a bar to the action. § 150. (a) Pleas of the statute of limitation. — When the equitable interest claimed in the bill rests upon some legal right which is limited by statute, the complainant must bring his case within the time allowed by the statute, and if he fails to do so the defendant will have a complete defense, either by demurrer if the facts appear upon the face of the bill, or by plea or answer if they do not so appear. As, for example, where by statute it was provided that an execution might be alleged in the bill. Piatt v. Oliver, 1 Cooper (Eq. PI. 251) and of Mr. McLean (U. S.), 295, Fed. Cas. 11,114. Beames (PI. in Eq. 159, 160); and I " A plea in equity, in order to consti- have followed it as preferable to that tute a bar to the complainant's whole of Lord Redesdale, who has divided right of action, must aver every fact them into (1) Pleas of matters re- essential to make out a complete de- corded, or as of record in the court fense." Mount v. Manhattan, etc., itself, or of some other court of 41 N. J. Eq. 311; MoEwen v. Broad- equity; (3) Pleas of matters of record, head, 11 N. J. Eq. 139; Davison's or matters in the nature of matters Ex'rs V. Johnson, 1 0. E. Green (N. J.), of record of some other court, not a 113. court of equity; and (3) Pleas of 1 Story, Eq. PI., sees. 749, 750. Judge matters in pais. Mitf. Eq. PI., by Story, in note 3 of section 749, says: Jeremy, 336." "This is the distribution of Mr. 198 DEFENSES IN KQUITV. [§ 151. levied upon an equitable interest in lands, and upon lands con- veyed to defraud creditors, but required the judgment cred- itor to proceed within a year and institute proceedings to ascertain and determine the rights and equities of the judg- ment debtor, it was held that the complainant, not proceeding within the time limit of the statute, lost all right to enforce his lien.' And where the statute limited the time within which a foreclosure proceeding could be commenced to fifteen years after the mortgage became due, or after the last pay- ment was made, it was held that the bill for foreclosure, not having been filed within the time, should be dismissed.^ "Ho principle of law is better settled than that where the law affords a remedy and the party neglects to avail of it, equity will not assist him after his rights have been barred by the statute of limitations." ^ In the case ot Kane v. Bloodgood^ the chancellor, in discuss- ing the authorities applicable to this principle, in cases of trusts barred by the statute of limitations, said : " That as to those other trusts (that is, trusts within the cognizance of a court of law) which are the ground of an action at law, the statute is, and in reason ought to be, as much a bar in the one court as in the other." In earlier times the statutes of limitation were confined to actions at law, but the courts of equity, recognizing the limita- tions fixed by the several statutes as reasonable and expres- sive of what would equitably be diligence and good faith in the premises, generally followed them in cases to enforce equitable titles to real estate and personal claims; latterly, however, in most of the states the statutes are made especially applicable to equity as well as law. § 151. Laches. — It is a maxim in equity that "Equity aids the vigilant, not those who slumber on their rights," and as applied to this subject it may be said to partake of the equi- table principles involved in that other maxim, "He who seeks equity must do equity." "While the court of equity has never lEdsell V. Nevins, 80 Mich. 146; ^Highstone v. Franks, 93 Mich. 53; Daniel v. Pahner, 124 Mich. 335; Mcln tire v. Conrad, 93 Mich. 526. Cleland v. Clark, 123 Mich. 180; SBlanchard v. Williamson, 70 111. Phalen v. Clark, 19 Conn. 431, 444. 647. < 7 Johns. Ch. 90, 114 § 151.J DEFENSES IN EQIHTY. 19t.> recognized that it was bound by the statutes of limitation except where they are especially applied to equity, it has at all times insisted that persons having equitable rights shall exer- cise diligence and good conscience in prosecuting the same. " A court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reason- able diligence. "Where these are wanting, the court is passive and does nothing." ^ Where it appeared by averments in a bill that the complain- ant, with knowledge of the fraud alleged, remained silent for a great many years without any reasonable excuse, and allowed third persons to acquire interests, relying upon the validity of the transaction complained of, it was held that the bill should be dismissed upon demurrer.' Although it is a rule in equity that no length of time will bar a fraud, still where the linowl- edge of the fraud has been for a long time within the knowl- edge of the party seeking to avoid the contract, and there have been intervening rights, the party will not be permitted to take advantage even of the fraud ; the party seeking such ad- vantage must make his election to do so and act promptly; he cannot sleep on his rights; and where he is guilty of neglect, it will be held that he has elected not to avail himself of them. This principle was discussed by Christiancy, J., in Campau V. Van Bylie? The bill in that case was filed to impeach and set aside a decree rendered by the court below. The grounds upon which the decree was sought to be impeached were, that at the time it was rendered complainant was an infant, and that no day in court, after he had become of age, was given him by said decree to show cause against it, and that the de- lEames v. Manley, 121 Mich. 300, Carpenter v. Carpenter, 70 111. 457; 310; Smith v. Clay, 3 Brown Ch. Brown v. Brown, 154 111. 35, 43; Mc- (Eng.) 639. Dearraon v. Durham, 158 111. 55, 63; 2Eames v. Manley. 121 Mich. 300; Benson v. Dempster, 183 111. 297,310; Cook V. Hall, 123 Mich. 378. Preston v. Preston, 95 U. S. 200, 203; 3 15 Mich. 371; Harlow v. Lake Su- 1 Danl. Ch. PL & Pr. 639; Story, Eq. perior Iron Co., 41 Mich. 583; John- PI., sees. 755, 756. son, Adm'x, v. Diversey, 82 111. 446; 200 DEFENSES IN EQUITY. [§ 151. cree was obtained by fraud and collusion. The decree was rendered two months before the defendant became of age; the bill was filed seven years afterwards. The proofs show that the alleged fraud was within the knowledge of the complain- ant. The defendant claimed that the complainant was guilty of laches and that his bill ought to be dismissed upon that ground. The complainant claimed that the limitation in such case ought to be co-extensive with the limitation as applied to real estate. The court say: "We do not mean to say that there is any fixed period, short of twenty years (or such other period as may have been adopted by courts of equity in analogy to the appropriate statute of limitation which may be in force), which would of itself operate as a peremptory legal bar to such a bill, if the facts and circumstances sufficiently account for and excuse the delay, and render it probable that the parties claiming the benefit of the decree could have lost nothing in consequence of the delay, and will not be deprived of any of the means of sustaining it, which they would have possessed had it been attacked at an earlier period. But sound public policy and a just regard for the stability of private rights require that the solemn judgments and de- crees of courts affecting the rights of property shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable period of time, during which the parties have been allowed to rely upon them, and others ma}' have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay, and especially when it appears probable that material evidence to sustain it may, in the meantime, have been lost, a general feel- ing of insecurity and distrust, very injurious to property and business, must naturally result." Courts of equity may be said to act not so much in obedience to the law, in such cases, as in analogy to it. In some of the cases the courts act upon the provisions of the statutes appli- cable to common-law actions. In a case of concurrent juris- diction the statute would seem to apply equally to courts of equity as well as of law ; the equity court would not permit ■§ 153- ] DEFENSES IN EQUITY. 201 'the party to obtain a greater right by adopting the equity jurisdiction than he would had he prosecuted his legal remedy. In Bank v. Daniel^ the court say: "Courts of law and ■equity have concurrent jurisdiction; and the complainants having elected to resort to equity, which they had the right to William Smith, Samuel Greenand James Clark, defendants, as the case may he, naming the sev- eral defendants']. The title of the cause should be given in the answer for the reason that a case is pending, the plaintifif has appeared and filed his bill, the defendant has been summoned and has ap- peared. The answer of William Smith to the bill of complaint of John Jones. \_0r, if there are several ^' aSswer***^ defendants, the joint and several answer of Will- iam Smith, Samuel Green and James Clark to the bill of complaint of John Jones, as the case may he.] If the bill of complaint has been amended, then " the answer of William Smith [or, William Smith and the other defend- ants] to the amended bill of complaint of John Jones, the complainant." Or, if it be an amended answer, then "the amended answer of William Smith, the defendant, to the bill of complainant of John Jones, the complainant." Or, if there has been a supplemental bill, " the answer of William Smith, the defendant, to the supplemental bill of complaint of John Jones, the complainant." If it is the answer of infants, by their guardians ad litem, then " the answer of C. D., an infant under the age of twenty-one years, by E. F., his guardian ad litem, to the bill of complaint of John Jones, the com- plainant." This defendant, now and at all times hereafter saving to himself all manner of benefit and ad- vantage of exception which can and may be had or taken to the many errors, uncertainties and other imperfections in the said bill contained, for answer thereto, and to so much and such part 17 258 DEFENSES IN EQUITY. [§ 190. 4. Protestation or reservation clause. Body of the answer. thereof as this defendant is advised it is or are material or necessary for him to make answer unto, answering says: Or (a short form): This defendant, reserving to himself all right of exception to the said bill of complaint, for answer thereto says: \0r if there are several defendants:~\ These defendants, now and all times hereafter saving and reserving to themselves, etc., as above. Or, these defendants, reserving to themselves all right of exceptions to the said bill of complaint, for answer thereto, say, etc. I. He admits that on the 10th day of March, 1901, he was the owner and in possession of the W. ^ of the N. E. i of section , in township north, of range east, in said county of — — and state of , and that on that day he entered into a certain written agreement witii the complainant in this cause for the sale of said described premises, which said written agreement was executed and delivered as alleged in said bill of complaint. II. He admits that by the said agreement so executed and delivered he covenanted and agreed for himself, his heirs, executors and administra- tors, for and in consideration of $5,000 to be paid to him, as set forth in said bill of complaint, to convey by good and sufficient warranty deed in fee simple to the complainant, his heirs or as- signs, the piece or parcel of land described in said agreement, and admits that in and by said con- tract and agreement the said complainant cove- nanted to pay to him, this defendant, the amounts as set forth in said bill of complaint, to wit: §5i)u at the time of executing said agreei^ient, §1,000 in six months from the delivery of said agreement, and the balance of said $5,000 as follows: $3,500 on the loth day of March, 1902, with interest on all unpaid amounts, as bysaid agreement will ap- pear, and admits that Exhibit " A," attached to said complainant's bill of complaint, is a copy of .said contract and agreement. III. This defendant denies that the said com- plainant complied with or performed the terms of said agreement, or that he paid to him, this de- fendant, the said second payment in said agree- ment mentioned and set forth, to wit, the sum of $1,000 on the 10th day of September, A. D. 1901, or at any other time; but, on the contrary, alleges § 190.] DEFENSES IN EQUITY. 2.V> that the said amount is due aad has never been paid by the said complainant. IV This defendant, further answering, denies that on the 10th day of March, li)02, or at any time, the said complainant, undertaking to fulfill, keep and perform his said agreement, offered to pay the full amount remaining due upon said con- tract to him, this defendant, or that he then and there requested him, this defendant, to execute and deliver to him a good and sufficient vrarrantee deed of said described premises on account of the offer or tender of said amount; or that he then and there refused, or that he still refuses, to cora- plj' with his agreement and undertaking and con- tract, and deliver to the complainant a deed of said lands. On the contrary, this defendant al- leges that he is and has been at all times ready and willing to comply fully with his agreement and undertaking upon the payment to him of the amount set forth in said contract, but that the said complainant has hitherto and does now neg- lect and refuse to pay said amounts as therein he covenanted and agreed to do [etc., etc., settiiuj up whatever defenses defendant may have]. And this defendant denies all and all manner of unlawful combination and confederacy where- with he is by the said bill charged, without this, that there is any other matter, cause or thing in the complainant's said bill of complaint contained, material or necessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed and avoided or denied, is true to the knowledge or belief of this defendant. All of which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct; and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. , William Smith. Solicitor for Defendant. If the answer is required to be sworn to, then the following affidavits should be attached: 6. Denial or trav- ersing clause. 7. Prayer. State of County of - On this ss. day of A. D. 19—, before me personally appeared William Smith and made 260 DEFENSES IN EQUITY. [§ l^l. oath that he has read \pr, heard read] the above 8. Affidavit to an- answer subscribed by him, and knows the con- ^'^®''- tents thereof, and that the same is true of his own knowledge, except as to such matters as are therein stated on his information and belief, and as to those matters he believes them to be true. , ISTotary Public. § 191. Signing and swearing to the answer.— The an- swer should be signed by the defendant personally unless he answers through a representative, as a guardian or a trustee, or some person legally entitled to represent him and through whom his defense is made. If the answer under oath is waived in the bill, the solicitor may sign the answer for the defendant, but if a sworn answer is required (and it is if not waived) the defendant must sign, if he personally makes the answer, as he must swear to its contents. If the defense is made through a representative, as by guardian, trustee, or some person legally representing the defendant, it must, if a sworn answer is required, be signed by such representative. A complainant filing a bill against a corporation may de- mand a sworn answer, or rather may omit to v^aive an answer under oath in the bill, but a sworn answer from a corporation cannot be compelled ; but facts which the complainant seeks to discover are generally asked for from the officers or persons in charge of the corporation and not from the corporation itself, and so in such case the complainant should join these several officers as parties to the bill. In such case the answer will be signed by some officer having authority to do so, subscribing the corporate name and attaching the corporate seal — as, for example, the president; and the ofHcers made parties defend- ant by the bill of complaint will verify it for themselves and as officers of the corporation. In Beeoher v. Anderson ^ the court say : " The answer of a corporation is not required to be sworn to, but is put in with- out oath under the corporate seal.^ If a discovery is required, individual members of the corporation may be called upon to 1 45 Mich. 543, 553. (U. S. C. C.) 601; Vermilyea v. Ful- 2 Wych V. Meal, 3 Peers Wms. 310; ton Bauk, 1 Paige (N. Y.), 37; Balti- Dummer V. Chippenham, 14 Ves. 345; more, etc. Ry. Co. v. Wheehng, 13- Haight V. Proprietor, etc., 4 Wash. Grat. (Va.) 40. § 192.] DEFENSES IN EQUITY. 261 answer under oath, but for that purpose it is necessary that they be named as defendants in the bill." ^ In Brumley v. Westchester^ the court denied a motion to com- pel officers of a corporation to make oath to the answer filed to a bill against a corporation generally where the corpora- tion put in an answer under its corporate seal. The ( o irt say: "It does not appear that this is a bill merely for a discovery of writings, . . . and, if it was, the case would not war- rant the motion that the defendants named should swear to the very answer put in on behalf of the corporation. The principle is established by that and by other cases, . . . that the court will call upon individual members of a corporation to answer not only with the rest under the common seal, but in- dividually, upon oath; " but in such cases holding that the de- fendants, whose discovery under oath is sought, must be named in the bill as defendants. If the corporation defendant desires to obtain a dissolution of an injunction, it may be necessary to have the answer to the bill verified, and in such case it may be done by the oath of some of the corporators, or officers of the corporation who are able to make oath as to the facts in the bill, and in such case several affidavits may be attached, each affiant testifying to the facts alleged in the answer which are personally known to him. The reason of this rule is that an injunction will not be dissolved on bill and answer unless the answer is sworn to.^ § 192. The waiver of the sworn answer. — A sworn answer may be waived by the complainant, but if it is not expressly 1 Brumly v. Westchester, etc. Co., ing to show that it is unauthorized, 1 Johns. Ch. 366; Buford v. Ruoker, it will be sufficient. Larrison v. 4 J. J. Marsh. (Ky.) 551. In Schilcer Peoria, etc. Ry. Co., 77 111. 11. V. Brock, 124 Ala. 626, 27 So. 473, a 2 1 Johns. Ch. 365. bill was verified using the following ^ Fulton Bank v. New York, etc. language: "That the matters and Co., 1 Paige (N. Y.), 311, 1 Barb. Ch. things alleged in the foregoing bill Pr. 156. In Bronson v. La Crosse Ry. as facts are true, and those alleged Co., 3 Wall. (U. S.) 28:3, 302, two stocU- upon information and belief he be- holders of the corporation, not hav- lieves to be true." This verification ing been made parties to the bill, was held to be insufficient. The an- were permitted by leave of the court swer of a municipal corporation to a to appear and put in answers in the bill in chancery need not be signed name of the company, and the ques- by an officer thereof. Where the tion was as to what effect sliould be name of the corporation is written given to these answei's. The supreme to such an answer, and there is noth- court say: " That they cannot be re- 262 DEFENSES IN EQUITY. [§ 192. waived in the bill of complaint or by stipulation in writing, or by an order of the court, the defendant must swear to it; and if there is more than one defendant and they make a joint and several answer, then each one of them must swear to it or make affirmation to it.' The oath or affirmation may be taken before a notary public, a justice of the peace, or any person authorized to administer oaths within their respective jurisdic- tions. If the answer is to be verified without the United States, it may be done before a commissioner appointed for that pur- pose, or before a consular officer.'^ The form of the oath or certificate is generally as given in the preceding section.' But no fixed or absolute form can .be garded as the answers of the corpo- rate body is manifest, as a corpora- tion must appear and answer to the bill, not under oath, but under its common seal. And an omission thus to appear and answer according to the rules and practice of the court entitle the complainants to enter an order that the bill be taken pro con- fesso. A further objection in the practice of permitting a party to ap- pear and answer in the name of the corporation is the inequality that would exist between- the parties to the litigation. The corporation not being before the court, it would not be bound by any order or decree. ren- dered against it. nor by any admis- sions made in the answer or stipula- tions that might be entered into by the parties or their counsel. It is thus apparent, that while the name of the corporation is thus used as a real party in the litigation so far as the rights and interests of the com- plainants are concerned.it is an unreal and fictitious party so far as respects any obligation or responsibility on the part of the respondents. It is insisted, however, that the directors of this company refused to appear and defend the bill filed against them, and for the fraudulent purpose of sacrificing the interests of the stockholders; and, hence, the neces- sity, as well as the propriety and justice, of permitting the defense by a stockholder in their name. Un- doubtedly, in the case supposed, it would be a reproach to the law, and especially in a court of equity, if the stockholders were remediless. But in such a case, the court in its dis- cretion will permit a stockholder to become a party defendant, for the purpose of protecting his own inter- ests against unfounded or illegal claims against the company; and he will also be permitted to appear on behalf of other stockholders who may desire to join him in the defense.'' 1 In the United States equity court this is regulated by rule of the court. United States Equity Rule 59 is as follows: "Every defendant may swear to his answer before any jus- tice or judge of any court of the United States, or before any com- missioner appointed by any circuit court to take testimony or deposi- tions, or before any master in chan- cer3' appointed by any circuit court, or before any judge of any court of a state or territory, or before any notary public." ' Paige v. Broadfoot, 100 Ala. 610, 13 So. 426; Patterson v. Scott, 142 111. 138; Story, Eq. PI., sees. 874, 875a; 1 Danl. Ch. PI. & Pr. 734, 735. 2 U. S. Eq. Rule 59. 3 Ante, g 188. § 193. J DEFENSES IN EQUITY. 2G3 said to be required; the defendant is naerely required to swear or affirm, in an affidavit attached to his answer, that he has read or heard read his answer and Ivnows the contents thereof, and that the same is true of his own Icnowledge except as to the matters therein stated to be on his information and belief, and as to those matters he believes it to be true. If the an- swer is the joint and several answer of several defendants, the certificate of the officer taking the verification should show that fact — that they each personally appeared before him and each for himself made oath that he had read the answer antl that the same is true, as stated in the form previously given.' Stress is laid upon these requirements because it is a right of the complainant to have sworn discovery of the mind of the defendant if he seeks it, and he may do so b}'^ failing to waive an answer under oath in his bill. A sworn answer may, how- ever, be waived other than by the waiver clause usually in- serted in the bill of complaint; and where it appeared that an answer of several defendants was filed in the case, and that one of them had not sworn to it, but that the complainant had filed a replication, and proofs were taken and the cause set down for hearing, it was held that the complainant had waived a sworn answer,^ and such a waiver may no doubt be effected by a written stipulation. In the courts of the United States and in the courts of the different states of the Union this is regulated by rule. § 193. Conipelliug an answer. — The answer of the defend- ant may be used in the cause as evidence, and in cases where the complainant's case depends largely upon discovery which is sought from the defendant he may compel an answer to his interrogatories upon oath. This, however, is largely regulated by statutes and rules of the different states. In the United States courts, by Equity Kule 18, after providing for taking de- crees ^w confesso, the rule provides as follows ■.'^ "Or the plaint- ^Ante, % 188; Reed v. Consequa, 4 Beach, 3 Paige, .S07; Torrent v. Rod- Wash. (U. a C. C.) 335; Hathaway gers, 89 Mich. 85. V. Scott, 11 Paige (N. Y.), 173, 176; ^U. S. Eq. Rule 18. "It has been Pincers v. Robertson, 24 N. J. Eq. already mentioned that every plaint- 348; Denison v. Bassford, 7 Paige, iff is entitled to a discovery from the 370. defendant of the matters charged in ^Bailey, etc. Co. v. Young, 13 the bill, provided they are necessary Blatchf. (U. S.) 199; Fulton Bank v. or proper to ascertain facts material 264 DEFENSES IN EQUITY. [§ 194. iff, if he requires any discovery or answer to enable him to ob- tain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defend- ant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise comply- ing with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause." The practice in compelling a defendant to answer the bill of complaint in the United States court is no doubt to proceed directly against the defendant as for con- tempt. An attachment may be issued against him, and the practice in some of the courts has gone so far as to hold that he may be committed.L §194. Amendments. — In matters of form or mistakes in date as to immaterial matters the court of equity is very in- dulgent in granting amendments to the answer; but after a replication has been filed, or the case has been set down for hearing, no amendment will be granted except by special leave of the court, and if the answer be a sworn answer, no amend- ment that is contradictory to or not in harmony with the an- swer on file will be allowed. And if it be an unsworn answer, the court would no doubt hesitate to grant leave to amend by stating facts not in harmony with the allegations of the an- swer sought to be amended. The allowance, however, of amendments is largely within the discretion of the court. In the United States court this is regulated by rule.^ And where an answer was not sufficiently explicit or responsive, an amendment was required;' and where parties were trans- posed, an amendment was permitted.^ So a mistake in the to the merits of his (the plaintiffl's) either by a demurrer, or by a plea, or case, and to enable him to obtain a by a disclaimer." Story, Eq. PI., deoree. The plaintiff may j-equire sees. 845, 846. this discovery, either because he can- 1 1 Danl. Ch. PI. & Pr. 488, 489. In not prove the facts, or in aid of the Matter of Vanderbilt, 4 Johns. proof, and to avoid expense. . . . Ch. 57, the practice was discussed. When, therefore, a defendant is Gould v. Spencer, 5 Paige, 541. called upon by a bill to make a dis- ^ U. S. Equity Rule 60. covery of the several charges con- ' Feller v. Winchester, 3 Greene tained in the bill, he must do so by a (Iowa), 344. general answer to those charges, un- * Buckley v. Boutellier, 61 111. 393. less he can protect himself from it § 195. J DEFENSES IN EQUITY. 265 title of the answer may be amended; or an omission in the jurat; or the omission of names of the parties which were omitted by mistake of the solicitor.' And where the matter sought to be introduced as an amendment happened since the filing of the bill, unless there is something in the relation of the parties or the subject-matter of the suit which should ex- clude the proposed defense, the court will not refuse to hear it.- But where the amendment was proposed after argument and submission of the cause, which changed the defense and based the claim of the defendant upon an entirely different theory, it was held to be improperly allowed.' And where the amendment proposed would render the amended answer a practical contradiction of the original answer, and a long time had intervened and the amendment introduced new issues, it was denied."* § 195. Exceptions to the answer. — When an answer under oath is not waived by the complainant, and the answer filed is insufficient to meet the discovery sought, or is scandalous or impertinent, the complainant may except to the answer, pointing out in his exceptions in what respect it is insufficient; or if for scandal or impertinence, showing particularly by the exceptions in what it consists and praying that the scandalous and impertinent matter may be expunged; or, if the excep- 1 McMiohael v. Brennan, 31 N. J. Fed. 375. And where leave to file Eq. 496; Brink v. Morton, 3 Clarke an amended answer and cross-bill (Iowa), 411. "But in the case of an- was sought long after the cause was swers, and of pleas put in upon oath, at issue, but a short time before the the court will not, for obvious rea- time fixed for closing the evidence, sons, easily suffer an amendment to it was held that the matter was be made. In a small matter, how- within the discretion of the court, ever, the defendant may amend; but and that the court might properly not in a material one, unless upon examine the legal sufficiency of the evidence to the court of surprise, facts averred and judge from the ev- The most common case of amending idence already taken whether it was an answer is where, through inad- probable that the defendant .could vertenoy, the defendant has mis- support his new averment. Ritchie taken a fact or a date; there the v. MoMuUen, 25 C. C. App. 50, 79 Fed. court will give leave to amend, to 522. prevent the defendant from being 2 Hall f. Home Bldg. Co., 56 N. J. prosecuted for perjury. In general, Eq. 304, 38 Atl. 447. however, this indulgence is confined 3 Joyce v. Growney, 154 Mo. 258, to cases of mere mistake or surprise 55 S. W. 466. in the answer.'' Story, Eq. Pi., sec. * Chattanooga v. Livingston (Tenn. 896; Sohultz v. Insurance Co., 77 Ch., 1900), 59 S. W. 470." 266 DEFENSES IN EQUITY. [§ 196. tions are that the answer is insufBcient in that it fails to fully answer the allegations of the bill, that a further and sufficient answer be filed. The complainant can except to the answer for two reasons: First, for insufficiency; second, for scandal and impertinence. §196. (I) Exceptions for insufficiency. — The complain- ant's exception for insufficiency of the answer particularly re- lates to the discovery which is sought by the bill of com- plaint. It ckn hardly be said that exceptions to the answer apply only to bills for discovery and not to bills for relief,, where the complainant finds that it is necessary that he should have the discovery in order that he may sustain his case; for bills of relief, by reason of the general prayer that the defend- ant shall " full, true, direct and perfect answer make to all and singular the premises as fully as if he had been hereto inter- rogated," etc., become bills of discovery to the extent that the defendant is required to answer fully, directly and completely all of the material allegations in the bill, so that in this par- ticular one cannot distinguish the bill of relief from the bill of discovery, and the rule relating to exceptions to the answer must apply as fully in the one case as in the other.' In Ames v. King ^ it was held that the prayer for answer in the bill of complaint is a good general interrogatory and re- quires the answer of the defendant to the allegations of the bill.^' 1 Story, Eq. PI, sec. 38. " If the de- 2 9 Allen (Mass.), 258; Partridge v. fendant fully answers to the matters Hayoraft, 11 Ves. 574; Mitf. Ch. PI. of the bill, with their attendant cir- 50, 51. cumstances, or fully denies them in 'In M. E. Church v. Jaques, 1 the proper manner on oath, the ob- Johns. Ch. (N. Y.) 65, 75, the chan- ject of the special interrogatories is cellor says: "The bill contains the completely accomplished." Stafford general interrogatory, 'that the de- V. Brown, 4 Paige (N. Y.), 88. It has fendants may full answer make to been held that "The office of an ex- all and singular the premises, fully ception to an answer is to raise the and particularly, as though the same question whether the averments and were repeated, and they specially in- denials thereof are sufficiently re- terrogated, paragraph by paragraph, sponsive to the allegations of the with sums, dates, and all attending bill; and it cannot be treated as rais- circumstances, and incidental trans- ing the question of the sufficiency of actions.' The question, then, is, the answer as a defense on the wliethev this be not sufficient to call merits."' Walker v. Jack, 31 U. S. C. for a full and frank disclosure of the C. A. 463, 88 Fed. 576. whole subject-matter of the bill; 197.] DEFENSES IN EQUITY. 267 § 197. Excepttons only allowed when answer nnder oath is reiinired. — As we shall see, the answer of the defendant cannot be used as evidence or as a deposition in the case, unless an answer under oath has been required by the com- ery are matters of record; also that discovery will never be compelled merely for the purpose of saving the complainants the labor of collecting and presenting their proof. The cases cited in support of this prop- osition are cases where the holding was with reference to bills for dis- covery merely, or where the ques- tion was considered as it arises on such bills. For illustration, in Ex parte Boyd, lOo U. S. 656. the court said that it had nothing to do with and I apprehend the rule on this subject to be, that it is sufficient to make this general requisition on the defendant, to answer the contents of the bill, and that the interrogating part of the bill, by a repetition of the several matters, is not nece;sary. The defendant is bound to deny or admit all the facts stated in the bill, with all their material circum- stances, without special interroga- tories for that purpose. They are only useful to probe more effectu- ally the conscience of the party and any question but that of discovery. to prevent evasion or omission as to circumstances which may be deemed important; but it is no excuse for the defendant, in avoiding to answer fully to the subject-matter of the bill, that thei-e were no special inter- rogatories applicable to the case. Plain sense and a good conscience will, without any difficulty, in most cases, teach a defendant how far it is requisite to answer to the contents of the bill, and to meet the gravamen Also in Ingilby v. Shafto, 3S Beav, 31, the bill was for discovery merely in aid of the defense of actions of ejectment, and the court held that a complainant in such a case was not justified in coming into equity for the purpose merely of getting the defendant to admit documents, to save him the trouble of proving them. The court further said that there was a distinction between a bill for discovery merely and a bill alleged; and it is certainly desirable asking for relief. Discovery is sought to avoid, if possible, the expense and in both cases. In the latter, it ia prolixity of repeating in the same sought with reference to the case bill every material fact. It is well understood that, if defendant be specially interrogated, it can only be to the facts alleged and charged in the bill. The one cannot be more extensive than the other." Mitf. 44; Cooper's PL 11, 12. In McClosky v. Barr, 40 Fed. 559, the court say: "The first proposi- tion urged for the defendant is that exceptions for insufiSciency are con- fined to cases where the complain- ants are compelled to rely upon the defendants to prove their case, and that all the matters concerning which the complainants ask discov- stated and the relief prayed by the bill, and the complainant may, within certain limits, call upon the defendant to state how, and on what ground, he can oppose the relief asked; because in such a suit the complainant may disprove the whole of it. But the court further said that, when the discovery is asked in aid of an action at law, all that the complainant can ask is for the dis- covery of facts and documents in the defendant's possession, knowl- edge of which will assist complain- ant in proving his own title in the action. Further on the court say •268 DEFENSES IN EQUITY. [§ 19T. plainant, except so far as its admissions are inaterial. If the bill of complaint waives an answer under oath, the defendant cannot add to the importance of his answer by swearing to it; -and it would have no more weight or dignity because of his voluntarily adding a jurat. But when the answer is required to be under oath, it may be used as evidence in the case; and so it becomes more important by way of discovering the mind of the defendant as to the allegations in the bill of complaint. Therefore, if the answer does not fully meet the allegations of the complaint, the complainant has the right to require a full and complete answer to these allegations, and he can only do so by filing exceptions to the answer which he claims is defi- ■ Story, Eq. PI., sec. 849a; Zane v. ing v. Day, 3 Houst. (Del.) 474. Cawley, 21 N. J. Eq. 130; Calkins * Walk. Ch. (Mich.) 427, 430. As to § 209.] DEFENSES IN EQUITY. 2S1 said: " The denial of the fraud by defendants, in their answer, is not conclusive upon the court if the facts and circumstances of the case are such as irresistibly lead the mind to a different conclusion. When fraud is denied it is not to be inferred from slight circumstances; but a denial of it does not preclude inquiry, or disarm the court of its power, when, from the pleadings and proofs, it is satisiSied of its existence." And so it has been held that an answer which is grossly evasive can- not have the force of one that shows apparent good faith.^ § 209. Admissions in the answer. — If the facts alleged in the bill be admitted by the answer, then as to such allegations the case stands as proven, for the admissions will be taken as ■evidence against the defendant; this is the rule in unsworn as well as sworn answers. " If the answer of the defendant admits a fact, but insists on matter by way of avoidance, the complainant need not prove the fact admitted, but the defend- ant must prove the matter in avoidance."^ As has already been said, if the case is heard upon bill and answer, the plaint- iff not filing a replication, the answer of the defendant is con- clusive evidence, and this even as to fraud alleged in the bill of complaint.^ In Hyer v. Little,* where the bill waived an answer under oath, but the answer was verified, it was held that it was no evidence for the defendant, but that any admissions it con- tained were operative against hira. And where the answer under oath was waived and a replication filed, it was held that the admissions in the answer, by the defendant, of any facts stated, would be evidence against him, but that the complain- ant could not use one part and exclude other parts relating to the rule that two witnesses, or one main questions in the case are as to witness and corroborating circum- the truth of the facts; these must be stances, are required to overcome a ascertained by the evidence alone, sworn answer, see Savings, etc. Soc. The bill prays that the defendant V. Davidson, 38 C. C. A. 365, 97 Fed. may answer without oath, and, €96; Salsbury v. Ware, 183 111. 505, therefore, his answer, although 56 N. E. 149; Hannaman v. Wallace, sworn to, is no evidence for him, 97 111. App. 46. though any facts admitted in it are 1 Fairbairn v. Middlemiss, 47 Mich, conclusive against him." 572. 3 Cunningham v. Freeborn, 3 Paige 2 Clark et al. v. White, 12 Pet (U. (N. Y.), 557; Barton v. International S.) 178, 189. In Hyer v. Little, 20 N. etc. Co., 85 Md. 14, 36 Atl. 658. J. Eq. 448, 445, it was said: "The « 20 N, J. Eq. 443. 2S2 DEFENSES IN EQUITY. [§ 210- the same subject that would be responsive to the bill had the answer been under oath.' And if the answer is so framed that because of its omissions, or otherwise, it admits by implication allegations contained in the bill, even though the answer is not upon oath, the complainant should be relieved from the burden of proof. In Shook V. Proctor'^ the court in discussing this question say- that it would seem " that a mere failure to deny a fact in the answer is no admission of the fact, but there must be some- thing further, something in what is said in the answer or the particular ground or issue upon which the defendant places his defense, which points to and involves the admission in question. But where a bill, for instance, sets up the execution of a prom- issory note by the defendant to the complainant and its loss, claiming that the amount of it is due and unpaid, seeking to base a decree upon it in his favor, an answer, especially if not on oath, and therefore purely voluntary, which states that the note was paid to the complainant and delivered up to the de- fendant, and that he has it in his possession, would be a very clear implied a.dmission of the execution of the note by the de- fendant, and would relieve the complainant of proof of such execution. This would certainly be the common sense conclu- sion anywhere outside of a court of chancery, and I have failed to see any satisfactory reason why that court, more than any other, should repudiate the dictates of common sense and sound logic upon which human affairs are conducted, for a merely arbitrary rule which is recognized by sane minds nowhere else." § 210. The answer will not atford affirmative relief. — The answer is a defense pleading, used simply to meet the case made by the bill of complaint and not to obtain further or affirmative relief. If the defendant desires positive or affirm- 1 Durfee V. MoClurg, 6 Mich. 323; from such admissions. And see Morris v. Hoyt, 11 Mich. 9. Young v. McKee, 13 Mich. 553, and 2 37 Mich. 349, 359. In Schwarz v. Hardwicli v. Bassett, 35 Micb. 149. Sears. Walk. Ch. (Mich.) 19, it was In chancery practice it has been held held that the admissions in a bill or that every material allegation in the answer to be conclusive on the party bill which is not admitted by th& must be full and unequivocal; that answer is denied. Yates v. Thomp- unless the express admissions are son, 44 111. App. 145; Litch v. Clinch, clearly connected with theone to be 136111. 410; Wingo v. Hardy, 94 Ala. inferred they cannot be inferred 184. § 211.] DEFENSES IN EQUITY. 283- ative relief beyond the case made by tlie bill, he can only ob- tain it by filing a cross-bill; nor will the answer afford relief against the co-defendant. "This is the uniform, and I appre- hend the only, course where a defendant is entitled to some positive relief beyond what the scope of the complainant's suit will afford him."' But if the matter depended upon be purely defensive, the defendant will not be permitted to set it up by way of cross- bill, but must rely upon it by answer; for it is only in cases where the answer is not available because affirm- ative relief is sought, or proceedings are necessary to obtain relief against a co-defendant, that the defendant will be per- mitted to proceed by cross-bill.- § 211. Same subject — Some exceptions. — There are seem- ingly some exceptions to the rule stated in the preceding sec- tion which grow out of the peculiarities of the particular cases in which they occur; as, for example, in a case for partition, the affirmative relief, to the extent of setting off to the defend- ant his part or portion of the property, can be had upon an an- swer, for the reason that in such cases each party asks for an allotment of his portion. This is really the prayer of the bill, and it is understood by each party that he is to grant and ac- cept an equitable division of the property in question; in other words, it is not an adversary proceeding.' But where the de- fendant in a partition suit, in addition to a defense by answer by way of setting up denials of allegations in the bill, which if true would require a dismissal of the bill, averred that he was entitled to the whole premises of which partition was sought, it was held that such an answer would be proper as a defense; but if defendant sought affirmative relief by a decree for a transfer to him of the legal title to the whole premises, or of discovery to establish his equitable defense, his answer would not afford him this privilege — he could only obtain such relief by way of cross-bill.* In actions for specific performance the exception prevails, 1 Pattison v. Hull, 9 Cow. (N. Y.) 593; Bank v. Sanford, 103 Fed. 98^ 747, To6; Schwarz v. Sears, Walk. Hook v. Rioheson, 115 111. 431, 5 N. E. Ch. (Mich.) 19; Williams v. Congre- 98. gational Church, 193 Pa. St. 120, 44 3 McCioskey v. Barr, 48 Fed. 134; Atl. 272. Kern v. Zink, 55 111. 449. 2 Wight V. Downing, 90 111. App. 1 ; * German v. Machin, 6 Paige (N. Y.), McGuire v. Circuit Judge, 69 Mich. 288, 299. 2Si DEFENSES IN EQUITY. [§ 211. for ia such cases if the court would do equity between the parties it is usually compelled to give to the defendant some affirmative relief; it is necessary in order to settle definitely the rights of the parties and save further litigation and ex- pense. And so where a bill prayed for a specific performance •of a written contract, and upon the hearing it appeared by proof that there were some variations or additions to the con- tract contemporaneous with its execution, a decree for specific performance of the contract as modified was granted without a cross-bill.' This exception also obtains in cases of account- mg, for in such case it is understood by the parties that the whole of the business in which the accounting is sought is sub- mitted to be settled justly and equitably. The whole case will therefore be adjudicated not only as claimed by the plaintiff, but the claim of the defendant will be considered upon his answer to the bill, and if necessary, in order to make settlement between the parties, affirmative relief will be granted without a cross-bill.^ And so the rights of infant defendants will be protected, and affirmative relief granted upon answer alone. iRedfield v. Gleason, 61 Vt. 230. Pomeroy states the rule in his Equity Jurisprudence at section 860. " If the plaintiff alleges a written agree- ment, and demands its specific per- formance, and the defendant sets up in )iis answer a verbal provision, or stipulation, or variation omitted by mistake, surprise or fraud, and sub- mits to an enforcement of the con- tract as thus varied, and clearly proves by his parol evidence that the written contract, modified or varied in the manner alleged by him, con- stitutes the original and true agree- ment made by the parties, the court may not only reject the plaintiff's version, but may adopt that of the defendant, and may decree a specific performance of the agreement with parol variation upon the mere alle- gations of his answer, without requir- ing a cross- bill. The court will either decree a specific execution of the contract thus varied by the defend- ant, or else, if the plaintiff refuses to accept such relief, will dismiss the suit. Under the old chancery prac- tice, the action of the court in such cases seemed to have been discre- tionary. Under the reformed pro- cedure, which permits affirmative re- lief, either legal or equitable, to be obtained by defendants through a counter-claim, such a decree, under proper pleadings, is doubtless a mat- ter of course and of right. Even where there has been no mistake, surprise or fraud, if, in such a suit, the defendant alleges and proves an additional parol provision or stipula- tion agreed upon by the parties, the court will decree a specific perform- ance of the written contract with this verbal provision incorporated into it, or else will dismiss the suit entirely." Adams v. Valentine, 33 Fed. 1 ; Coogan v. McCarran, 50 N, J. Eq. 611; Bradford v. Tennessee, etc. 13 How. (U. S.) 57. 2 Scott V. Lalor, 18 N. J. Eq. 301; Little V. Merrill, 63 Me. 338; Wyatt § 212.] DEFENSES IN EQUITY. 285 A very satisfactory reason for the rule is given in the opin- ion of the court in Starhet al. v. Brown et al> " It was the spe- cial duty of the guardian ad litem to submit to the court, for its consideration and decision, every question involving the rights of his wards. And the court will protect the rights of infants where they are manifestly entitled to something, al- though their guardian ad litem neglects to claim it in their behalf." So in actions for marshaling assets the court will adopt the liberal rule and usually grant necessary relief to the defendant upon an answer.- § 212. The cross-bill.^ It is the aim of the equity court to settle the whole controversy between the parties, and "not b}'^ halves." As we have seen, for this reason all interested par- ties are brought in upon the same principle, and to accomplish the same end the cross-bill is used. As noticed in the preceding section, the answer of the de- fendant is only used in making a defense to the bill, and it often happens that the defendants, one or more of them, are entitled to affirmative relief against the complainant, or the complainant and co-defendants, one or all of them; and the controversy cannot be justly and equitably settled by the court unless this affirmative relief can be granted. The cross-bill meets such like cases; it is a bill brought by a defendant against the plaintiff, and, if necessary, other parties, for relief in matters which grow out of, or are auxiliary to, the main controversy. It is filed to bring all the matters involved in the original suit completely before the court; as, for example, where the owner of an upper mill privilege filed a bill in equity against the owner of another mill privilege lower down the stream to restrain him from maintaining his dam at too great a height because it caused the water to set back upon the mill of the plaintiff and thus hindered the plaintiff in oper- ating his mill, it was held that in such a case the defendant, owner of the lower mill privilege, might file a cross-bill in the same suit and have settled, by the decree of the court, alleged infringements by the plaintiff of his use of the stream. The V. Sweet, 48 Mich. 539; Raymond v. ' 101 HI. 395, 898. Came, 45 N. H. 301; John.son v. But- ^Lehman v. Tallassee, etc., 64 Ala. tier, 81 N. J. Eq. 85. 568. 2SG DEFENSES IN EQUITY. [§ 212. court say: "Bj' their cross-bill the defendants allege that cer- tain injuries have been done to them by the plaintiff in the occupation of its estate. As these alleged grievances relate to the subject-matter presented by the plaintiff's bill, namely, the rights of the respective parties in the use of the stream which furnishes the power for each privilege, they are properly to be now considered in order that, if they exist, they may be redressed here. The plaintiff, in seeking the aid of a court of equity, should itself be prepared to do equity." ^ " A cross-bill is 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. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties, as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-mat- ter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it." ^ But where the relief sought in a cross-bill can be en- 1 Atlanta Mills v. Mason, 120 Mass. them, touching the matters in ques- 244. tion in the original bill. Whenever 2 Ayres v. Carver et al., 17 How. it is brought against co-defendants (58 U. S.) 591, 595; Kidder v. Barr, 35 in a suit, the complainant in such N. H. 235, 251. "A cross-bill is a bill suit must be named a defendant to- brought by a defendant against a gether with them.' The last named plaintiff, or other parties in a former author in same volume at page 130 bill depending, touching the matter says: ' A cross-bill should be confined in question in that bill." Mitf. Eq. to the matters stated in the original PI., sec, 383; Story, Eq. PI., sec. 389; bill, and should not introduce new White V. Buloid, 2 Paige (N. Y.), 164: and distinct matter not embraced Vail V. Arkell, 43 111. App. 466; West therein; and if he does so, no decree Virginia, etc. Co. v. Vinal, 14 W. Va. can be founded upon those matters ; 637, 678. In this case' the court in its for as to them it is an origmal bill.' opinion quotes from Barbour and Tlie same author, at page 131, also other authors. " In the second vol- says: 'A cross-bill being generally ume of Barbour's Chancery Practice, considered as a defense to the orig- at page 127, it is said, 'A cross-bill inal bill, or as a proceeding necessary ex vi terminorum implies a bill to a complete determination of a brought by some or one of the de- matter already in litigation, the com- fendants in a suit against the com- plainant is not, at least as against I)lainant or against him and other the complainant in the original bill, defendants in that bill, or some of obliged to show any ground of equity ^ 213.] DEFENSES IN EQUITY. 28Y tirely obtained by an answer and proceedings in the original suit, the cross-bill will be dismissed. ^ § 313. Necessity and object of cross-bill.— The necessity of such a bill is already quite apparent. It avoids the bring- ing of an independent separate action to settle some part or portion of the controversy existing between the parties which cannot be tried and determined in the original suit. It widens the issue and brings into one litigation the whole ■controversy with all the questions and matters of dispute growing out of the case made by the original bill and which are in reality a part of it. Because of the rules governing the answer to the original bill, a defendant, but for the cross-bill, would be compelled, in order to obtain the relief to which he is justly and equitably entitled, to file a separate and independent bill. The cross-bill will give relief in the same litigation, and so it is often neces- sary to resort to it. A cross-bill may be filed to obtain dis- covery of facts in aid of the defense, or to obtain full and to support the jurisdiction of the •court. It is treated, in short, as a mere auxiliary suit, or as a depend- ency upon the original suit. But where a cross-bill seeks not only discovery, but relief, care should be taken that the relief prayed by the cross-bill should be equitable relief; for to this extent it may be consid- ered 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.' " Jones v. Smith, 14 111. (4 Peck), 229; Sims v. Burk, 109 Ind. 214, 9 N. E. 902. In Davis v. Cook, 65 Ala. 617, 622, the court, quoting from Mitf. Eq. PI. 80, said: "A cross-bill is a bill brought by a defendant against a plaintiff, or other parties in afoi-mer bill depending, touching the matter in question in that bill. A bill of this kind is usually brought to obtain a necessary discovery, or full relief to all parties. It frequently happens, and particularly if any question 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, litigated by the proper parties, and upon proper proofs. In this case it becomes necessary for some or one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring the litigated point properly before the court. But a cro.>s-bill being generally considered as a defense, or as a proceeding to procure a complete determination of a matter already in litigation in the court, the plaintiff is not, at least as against the plaintiff in the original bill, obliged to show any ground of equity to support the jurisdiction of the court." 1 Bogle v. Bogle, 85 Mass. (3 Allen), 158; Braman v. Wilkinson, 3 Barb. (N. Y.) 151. 2S8 DEFENSES IN EQUITY. [§ 213.. complete relief as to the matters charged in the original bill.' Where a bill was filed by a street railway company to re- strain the defendant, a city, from removing its tracks from the. streets and revoking its franchises granting it privileges in the streets, a mortgagee was permitted to file a cross-bill asking for the appointment of a receiver of complainant's property with power to operate the road and to borrow money to en- able it to meet expenditures required by the terms of the fran- chise in order to preserve the property. It was held that the subject-matter of such a cross-bill and the relief sought were germane to the original bill and should be allowed. The court say: "Can it be that a court of equity is without power ta protect the interests of the bondholders when their repre- sentative stands ready, on receiving the proper order of the court, to advance the necessary money to prevent the for- feiture ? " 2 Where one or more of several defendants stand in a differ- ent relation to the subject-matter of the controversy than oth- ^ ers of the parties, having not only a defense to the original suit but also certain equitable rights against other defendants, or defendants and complainants, or some of them; or where,, since the case has been at issue, certain matters have arisen that offset the whole matter in dispute, in such and similar cases the cross-bill can be invoked. From what has been said it will be seen that a cross- bill may be in the nature of a bill for discovery or a bill for relief. It. I Ayres v. Carver, 58 U. S. (17 How.) bill, which must be strictly confined. 591. In Andrews v. Kibbee, 13 to matters involved in the cause. A Mich. 96, the court said: "A cross- bill which introduces other distinct bill for purposes of relief is always matters is an original bill, and the designed for the purpose of enabling suits are separate and distinct." a defendant to avail himself of some Story, Eq. PI., sec. 631; Griffith v. defense which can only be made Merritt, 19 N. Y. 529. complete by granting him some ^ Union Street Ry. Co. v. City of affirmative relief against complain- Saginaw, 115 Mich. 300; Powers v. ant. or against some co-defendant. Hibbard, 114 Mich. 533; Griffin v. Equity rarely can grant any affirm- Griffin, 112 Mich. 87; Barton v. Bar- ative relief upon an answer alone, hour, 104 U. S. 136; Pollard v. Well- If this could be done, there could ford, 99 Tenn. 113; Ray v. Home, etc never be any occasion for a cross- Co., 106 Ga. 492, 33 S. E, 603. § 21 4. J DEFENSES IN EQUITY. 289 is, however, always an auxiliary of, and dependent upon, the original bill.' A defendant, having filed his cross-bill praying for affirma- tive relief, is entitled to a hearing upon it, and the complain- ant in the original bill cannot deprive him of this privilege by dismissing the original bill.^ But if the facts set out in the cross-bill can all be proven under an answer, and no relief is sought except such as would necessarily follow the dismissal of the original bill, a demurrer to a cross-bill would be sus- tained.' And if the cross-bill contains new and distinct mat- ters which are in no way germane to the subject-matter of the original bill, the cross-bill cannot be sustained.* And where it appears that the original bill is without equity the cross-bill should be dismissed.^ § 211. The relief sought must be equitable relief. — The cross-bill is but an auxiliary proceeding to the original bill; a bill seeking further relief because of the existence of further and other equities growing out of and a part of the same trans- action; equities which are germane to the equities depended upon and set out in the original bill. If the relief sought by the cross-bill is not equitable relief, the bill would be subject to a demurrer, for the court in which it is filed and in which it must be heard and determined is an equity court and would have no jurisdiction to dispose of it, or grant the relief, if the cross-bill did not set up an equitable case and ask for equitable relief. 1 Canant V. Mappin, etc., 20 Ga. 730. ^wilcox v. Allen, 36 Mich. 160, "A cross-bill is nothing more than 171. an addition to the answer." In Hack- 3 Gordon v. Johnson, 79 III. App. ley V. Mack, 60 Mich. 591, it was held 423. "Where the matter set up in that a cross-bill can only be sus- the cross-billls purely defensive mat- talned when filed to obtain relief as ter and available under an answer, to the matters growing out of the the cross-bill cannot be sustained." original bill, and that such a bill can- Woodard v. Bird, 105 Tenn. 671, 59 not be filed in any case where the S. W. 143. complainant could not have filed an < Wight v. Downing, 90 111, App. 1; original bill for the same purpose. Mathiason v. City of St. Louis, 156 In Cook V. Wheeler, Harr. Ch. (Mich.) Mo. 196, 56 S. W. 890. 443, it was held that where the cross- * Carroll v. Richardson, 87 Ala. 605; bill merely seeks discovery that does Dill v. Shahan, 35 Ala. 694, 60 Am. not constitute a defense to the orig- Dec. 540. inal bill, it is not demurrable. 19 290 DEFENSES IN EQUITr. [§ 215. In Tohey et al. v. Foreman^ the court say: "But wherever the cross-bill seeks relief, it is indispensable that it should be equitable relief, otherwise the bill will be demurrable; for to this extent it is not a pure cross-bill, but it is in the nature of an original bill, seeking further aid of the court, beyond the purposes of defense to the original bill. And, under such cir- cumstances, the relief should be such as, in point of jurisdic- tion, the court is competent to administer." § 215. Parties to the cross-bill. — It is a general rule that a cross-bill cannot be filed by one who could not file an orig- inal bill for the same purpose.^ There seems, however, to be an exception to this rule in the federal courts where it is per- mitted to a defendant in the original suit, who is of the same citizenship as that of the defendants against whom the cross- bill is brought, to file such a bill, where the court has jurisdic- tion of the original suit.' As to who may be parties to a cross- bill, however, the authorities do not seem to be entirely harmonious. The general doctrine seems to be that a cross- bill can on\j be filed by a defendant or defendants to the original bill against the other parties, complainants or defend- ants to the original bill, or some of them. But what is the rule in case the defendant who files the cross-bill conceives it necessary to the complete settlement of the controversy, to introduce new parties by his cross-bill — parties that are neces-- sary or perhaps indispensable to a full consideration and set- tlement of the facts raised and relief sought by the cross-bill, such facts and such relief being germane to the issue tendered by the pleadings ? Upon this question the courts have not been harmonious. In Shields v. Barrows,^ Mr. Justice Curtis 179 111. 489, 491; Story, Eq. PI. 629, matter of the original bill. The 398. And where the facts in the scope and object of the cross-bill cross-bill disclosed no equity, it was must therefore be within the pur- held that it should be dismissed, poses of the original bill and ger- Kemeys v. Netterstrom, 86 ID. App. mane to it. Hurd v. Case, 33 III. 45, 590; Martin v. Kester, 46 W. Va. 438. 83 Am. Dec. 249; Rutland v. Paige, The cross- bill is a dependency on the 24 Vt. 181; Riggs v. Armstrong, 28 original suit and can only be sus- W. Va. 760. tained on matter growing out of it, 2 Hackley v. Mack, 60 Mich. 591,604. and so the affirmative relief sought "Krippendorf v. Hyde, llOU. S. 276. must be equitable relief. Griffin v.' ^17 How. (U. S.) 130, 145; Conti- Fries, 23 F!a. 173, 2 S. 266. The cross- nental Life Ins. Co. v. Webb, 54 Ala. bill must be confined to the subject- 688, 694. § 215.] DEFENSES IN EQUITY. 291 for the court in the opinion said: "New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the objection of non-joinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court find that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irreg- ular, but wholly unnecessary." This doctrine supported by so able a jurist and concurred in by the supreme court of the United States is no doubt en- titled to great weight, and yet it is not difficult to conceive of a case where the equitable rights of parties would suffer if this rigid rule were to be followed, and the better doctrine and the more satisfactory practice would seem to be that contended for in Brandon Mfg. Co. v. jPrime,^ where it was held that persons not parties to the original bill, when shown to be necessary to the full settlement of the controversy, may be brought in by cross-bill. The question arose in this case as to whether the cross-bill should be an answer. The court said : " A cross-bill is like an original bill, except that it must rest on what is neces- sary to the defense of an original bill. In an original bill, brought by the orator in the cross-bill for the same relief, there could be no fair question but that these new parties . . . would be proper parties. In this original bill, as it is framed, these do not appear to be necessary parties, but, when the facts set up in the cross-bill appear, they become so. Following the ordinary rule, when the orator in the cross-bill resorts to it for defense and relief, and makes it appear that they are not only proper but necessary parties to the litigation, that orator 1 14 Blatchf. (U. S.) 371. In Stock- nawha Lodge, etc. v. Swann, 37 W. ton, etc. Soo. v, Harrold, 137 Cal. 613, Va. 176, 16 S. E. 462, it was held 60 Pac. 165, it was held that if the that it would not be proper to in- oause of action to which they are troduce new parties in a cross-bill made parties defendant is the proper which is merely defensive in char- subject of a cross-complaint, new aoter, but when affirmative relief is parties may be brought in by cross- demanded, and the justice of the bill. Mackenzie V. Hodgkin, 126 Cal. cause requires it, new parties may be 591,59Pac.36; Loughridgfi v.Cawood, introduced. 97 Ky. 533, 31 S. W. 135. In Ka- 292 DEFENSES IN EQUITY. [§ 215. not only might, but ought, to make them parties. If there were no authorities and was no practice on the subject, on principle, that would seem to be the proper course. . . . Opposed to all this, there is the remark of Mr. Justice Curtis in Shields v. Barroiv, and the reasons given by him in support of it, to the effect that new parties cannot, in any case, prop- erly be added by cross-bill, without citing any authority for it, and books and cases that have followed that remark with- out citing any other authority. That precise question was not involved in that case, but the mere dictum of such a judge of such a court would ordinarily be followed, especially by lower courts. An examination of his reasoning shows that he made the suggestion without much examination, probably, and his reasoning does not cover the whole ground as to all classes of cases. The modes of procedure he suggests would probably be ample in all cases of cross-bills brought for discoverj'^ in aid of a defense merely to the original bill, but not in cases of those brought for relief as well as defense, where new parties would be necessary to the relief sought. As in this case, the methods he states as the proper ones, if successfully followed, would enable the defendant in the original bill to defeat the orator therein, but not to reach the affirmative relief prayed in the cross-bill, if entitled to it. Weighty as that remark is, it is not thought to be sufficient to control the reasons and author- ities to the contrary. The result of what is thought to be the soundest reasoning, and the best considered authorities, is that where a cross-bill shows that there is a party to the subject of the litigation as presented by it, who has not been before made a party nor appeared to be a necessary one, and then does appear to be such, that party should be brought in by the cross- bill."' In determining this question it is important to notice the distinction mentioned by the court in West Virginia^ etc. Co. V. Vinalj^ where a cross-bill, merely defensive in its character, and one seeking relief for the consideration and determination of which new necessary parties should be before the court, are distinguished. If the cross-bill be one merely defensive and 1 Jones V, Smith, 14 111. 329; Hilde- made parties to the original bill, brand v. Beasley, 7 Heisk. (Tenn.) 131. Odom v. Owens, 2 Baxt (Tenn.) 446. But the new parties are not by this 2 14 w. Va. 637, 681. § 215.] DEFENSES IN EQUITY. 293 the parties sought to be introduced are not necessary or in- dispensable to the settlement of an issue that is germane to the case made by the original bill, there could be no doubt that the court should refuse to allow such additional parties; they would be as strangers to the issue. But if the cross-bill be one of the latter character it would seem that every equitable principle would demand its adQj_5tion.' In Jones v. Smith'' the court saj^: "Such a case may not often arise, making it necessary to bring in new parties to a cross-bill; but when it does arise, the well established and universally recognized rule of chancery pleading requires that the new parties shall be brought in and allowed to controvert the new allegations, and resist a decree prejudicial to their in- terests. "We have not looked for precedents for a practice so imperatively required by the reason of the law, and the law itself. It is not introducing new and independent matter into the cross-bill, and new parties, for the purpose of answering that new matter, but it is presenting new facts connected with the subject-matter of the original bill, and answering it, and new parties whose interest may be likewise affected by the new allegations. Were a precedent wanted for this practice we are prepared to furnish it." By the English judicature act new parties are allowed to be brought in by counter-claim.' 1 The question is ably discussed in sary parties to the cross-bill, they Pollard V. Wellford, 99 Tenn. 114, may properly be made such ' is prob- 118, 42 S. W. 25, where the motion ably true." Cases supporting the was to strike such a cross-bill from doctrine contended for in Shields v. the files. Hildebrand v. Beasley, 7 Barrow, 17 How. (U. S.) 130, are col- Heisk. (Tenn.) 131. lectedand commented uponin vol. V, 2 14 111. 229, 233. Mr. Justice Mont- Notes on United States Reports, at gomery, speaking for the Michigan page 45. Among these cases are the court in Griffin v. GrifiSn, 112 Mich, following; Randolph v. Robinson, 20 87, 90, adopts the practice in this Fed. Gas. 262, "Holding cross-bill language: "But, considering the not admissible which brings in new more recent cases, reinforced by stat- parties." Simmons v. Taylor, 38 Fed. utes and codes, the trend is towards 699; Adelbert College v. Toledo, etc. the practice; and the statement that Ry. Co., 47 Fed. 846; Thurston v. Big, ' the undoubted weight of authority etc. Co., 86 Fed. 485; Richman v. is to the effect that if a cross-bill is Donnell, 53 N, J. Eq. 35, 30 Atl. 534. brought for relief as well as for de- Also citing 83 Am. Dec. 253 and note. fense, and shows that persons not SDear v. Sworder, 4 Ch. Div. 476. parties to the original bill are neces- 294 DEFENSES IN EQUITY. [§§ 216, 217. § 216. Cross-bills by persons not parties to the original suit. — It is unquestionably a settled rule in equity pleading that mere strangers to the litigation would not be permitted to intervene, nor can they be made parties to the suit, nor could the rights of persons, although they have an interest in the subject-matter of the litigation, be affected by the decree if they are not made parties and subjected to the jurisdiction of the court, and yet it must be conceded that cases might arise where persons interested in the subject-matter, though not made parties to the original suit, could obtain more complete and satisfactory relief by appearing and answering and filing a cross-bill if they could be permitted to do so, than by an independent and original proceeding by bill of complaint; as. where one has an equitable interest in the subject-matter of the litigation which would be more or less affected by the original litigation; or where it would be difficult to obtain jurisdiction of the parties who have already submitted them- selves to the jurisdiction of the court in the original case; or where great expense and delay might be saved by submitting to the court the whole controversy in the one litigation. In such cases the person so interested may petition the court to- be allowed to intervene and be made a party defendant in the original suit, and, when admitted, file his answer and cross-bill and thus subject his interests to the judgment of the court. Such a practice would certainly aid the court in settling the whole controversy in one suit, and this is one of the grand underlying doctrines of equity; by its decree it aims to deter- mine all the rights, interests and claims arising in the suit, and to ascertain and settle all conflicting interests pertaining to- the subject-matter of the controversy.^ In Whitbech v. Edgar '^ the chancellor said : " That although it was a general rule that a cross-bill could not be filed by any persons except parties to the original suit, yet that a purchaser fendente lite, from a party to the suit, was a privy, and might file a bill in the nature of a cross-bill, to make himself a party to the suit so as to have his rights protected." § 217. The frame of the cross-bill. — The old English cross- bill was as nearly an independent pleading as possible and be 1 Pomeroy, Rem. & Rem. Rights, sec. 247. 22 Barb. Ch. Pr. (N. Y.) 196. § 217.] DEFENSES IN EQUITY. 295 an auxiliary proceeding in the defense. It might be interposed by any one or more of the defendants against any one or more of the complainants or defendants named in the original bill. It might be filed in the same court as the original bill, or in any other court of equity. " It seems that in England," says Judge Story in his work on Equit}?^ Pleading,' "it is not indis- pensable 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 has been brought in the court of exchequer, whilst that court had equity jurisdiction, the cross-bill might be brought in the court of chancery. Whether the like doctrine is main- tainable 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 circuit 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 orig- inal bill is depending, as it is not an original but an ancillary suit." As to the frame of the cross- bill Story further says:^ "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 original suit; for, as to such matters, it is an original bill, and they cannot properly be examined at the bearing of the first suit." The frame of this bill has undergone some changes brought about by the tendency in these modern days to simplify pleadings by ridding them of too much verbiage and unneces- sary prolixity. In drafting such a bill the pleader must keep in mind (1) that it is auxiliary to the defense sought to be made to the original bill; (2) that it is filed to more fully exemplify his defense and to obtain affirmative relief; (3) that the relief sought and the claims set up must be strictly in the nature of a defense to the bill and legitimately connected with the claim of the bill. 1 Story, Eq. PI., sec. 400. 2 Story, Eq. PI., sec. 401. 296 DEFENSES IN EQUITY. [§ 218. In Neal v. Foster ^ the court discusses the requisites of the former English cross-bill, and then adds, "but this practice never obtained in this country. In the national courts at least the cross-bill must, from the necessity of the case, be filed in the circuit court where the original bill is depending. In such case there is no necessity of bringing the facts of the original bill, or its object or prayer, to the attention or knowl- edge of the court by repeating them in the cross-bill, and a mere reference to the bill, which is already before the court, and a part of the case, is sufficient for all practical purposes. Of course it is necessary to set forth in the cross-bill so much of the matter in the original bill, and the subsequent pleadings and proceedings thereon, as may be necessary to show what right or defense is sought to be brought before the court for adjudication and to make a proper case therefor. ... A cross-bill is generally considered and used as a matter of de- fense and may answer the purpose of a plea^puis darrein con- tinuance, where the matter of the defense arises after answer. A cross-bill is either brought against the plaintiff in the origi- nal bill, or one or more of. the defendants therein, and the orio-inal and cross- bill are considered one cause." ^ And it may be generally said that the same rule as to requisites of a cross-bill obtains in the several states of the Union.' § 218. Same subject — Substance or body of the bill. — The cross-bill is filed with the answer of the defendant or after the answer has been filed, and, as we have seen, is instituted for the purpose of obtaining affirmative relief to the defendant, or defendants, resorting to it. It would therefore follow that the cross-bill is not filed for the purpose of stating the defense to the original bill, but rather for the purpose of alleging such material facts as will warrant the court in granting the relief prayed for; therefore, in the substance or body of the bill, the defendant states, in a concise and logical form, each allegation of fact upon which he depends and founds his prayer for relief. These allegations, like the allegations of an original bill, must make out an equitable case, and must contain subject-matter that could not be taken advantage of by an answer. The sub- 1 34 Fed. 496. Cross v. De Valle, 1 Wall. (U. S.) 14; 2 Adams' Equity, 403; Field v. Story, Eq. PI., sees. 389, 393. Schieffelin, 7 Johns. Ch. (N. Y.) 353; 3 Cable v. Ellis, 130 111. 136. § 219. J DEFENSES IN EQUITY. 297 ject-matter of the bill, however, must be germane to the case made in the original bill.^ § 219. Samesubject — The prayer of the bill.— The prayer of the cross-bill is not unlike the prayer to an original bill. It should ask the court for the particular affirmative relief sought by the party filing it, and may contain not only a special prayer for relief, but a general prayer;^ and generally a prayer that the cross-bill be heard at the same time the original bill is heard. It would seem, however, that it would not be neces- sary to pray for process to bring the parties defendant to the ■cross-bill into court, for they are already in the court, unless it be a new party, in which case a prayer for process would be necessary ; or where an injunction has been prayed and granted, in such case it would be necessary that service of the writ of injunction be made upon the parties defendants in the bill. It has been held, however, "that no person is technically a party to the bill unless there is a prayer for process." Although the question is not satisfactorily and harmoniously settled by the authorities, it seems that the rule exists that if there is no statute making it unnecessary to issue process upon the filing of the cross-bill to bring in the defendants, it ought to be issued. In Thomason v. Neeley ' the court say : " The existing stat- ute allows the answer to be made a cross-bill against the com- plainant and co-defendants, or all of them, but returns to the practice which always prevailed in the chancery court, that the defendants thereto must be served with the same process used to compel the appearance of defendants to the original bill." In Washington Ry.v. Bradleys^ \h% coyxx^i^zidi: "Par- ties defendants are as necessary to cross-bills as to original bills, and their appearance in both cases is enforced by process in the same manner." In Hall Lumber Co. v. Gustin '" the court held that a notice of lis jpendens filed in this case, but 1 Andrews v. Kibbee, 13 Mich. 94; v. Van Cortlandt, 3 Johns. Ch. (N. Y.) Hackley v. Mack, 60 Mich. 594, 37 N. 343. In Kennedy v. Kennedy et al., "W. 871; Fleece v. Russell, 13 III. 31; 66 111. 190, 194, a new party was Goff V, Kelly, 74 Fed. 337. brought into the case. Talmage v. 2 Harrison v. Brewster, 38 W. Va. Pell, 9 Paige Ch. (N. Y.) 410. 294; Cox v. Leviston, 63 N. H. 383; 3 50 Miss. 310. Cooley V. Harris, 93 Mich. 126; Clark nO Wall. (U. S.) 399, 303. V. Clark, 63 N. H. 367; Brasher's Ex'rs ^ 54 Mich. 635. 298 DEFENSES IN EQUITY. [§ 220. not in a cross-suit, was constructive notice to all the defend- ants because the suit and the cross-suit constituted one cause. In Treiber v. Shafer ' Judge Dillon said : " In such case, aside from statutory regulations, the bill and cross-bill make but one cause. . . . It is a fair deduction alike from these author- ities, and from the nature of the proceeding itself, that such a cross-bill as the one under consideration cannot justly be re- garded as in the nature of an original suit, in such a sense that the statutory process, or notice, must necessarily be issued and served upon the plaintiffs in the same manner as the orig- inal bill. The notice formerly required on cross-bills was, as we infer from the authorities, a matter wholly regulated by the practice of the court. . . . And for this we have the express authority of Lube, who says ' the defendant to a cross- bill being already in court by the original bill, service of process on his clerk in court is good service.' " To conform with the practice generally existing in this country it would seem that the bill having been filed, a copy thereof should be served on the solicitor for complainant in the original cause. § 220. Same subject — Signing and verifying the bill — The same rule would obtain in the matter of a cross-bill as to signing and swearing to the same as applies to an original bill. The cross-bill should be signed by the party complainant or complainants in the bill and bj' the solicitor and counsel for the complainants. If the bill need not necessarily be veri- fied, and is not verified, the solicitor may sign for the com- plainant. A cross-bill may, however, pray for preliminary and immediate relief by way of obtaining injunction or a re- ceiver, in which case, as in original bills, it would be necessary that the bill should be verified by the complainants.^ 1 18 Iowa, 39. title the complainants therein to a 2Talmage v. Pell et al., 9 Paige, stay of proceedings in the original 410, where it was held that all com- suit was sustained where the mat- plainants in a cross-bill must join in ters were stated in the bill on mere an application to stay proceedings information and belief, and no affi- in the original suit, and that to en- davit was procured of the person title complainants to such an order who gave the information stating the cross-bill must be sworn to by that the allegations therein were persons knowing the facts. An ob- founded in fact. Van Valtenburg v. jection that the cross-bill was not Alberry, 10 Iowa, 264. sworn to in such a manner as to en- § 221.J DEFENSES IN EQUITY. 29& § 221. Same subject — Filing the bill.— The bill should be filed in the court where the original bill is pending. It was formerly a rule that the cross-bill must be filed before publi- cation of the testimony, which was at that time taken by a master and generally in private. The reasons for that rule no longer exist.^ A rule, however, obtains in some jurisdic- tions that the cross-bill must be filed at the time of answering the original bill, but it cannot be said that there is any fixed settled rule as to when the cross-bill should be filed, for it seems that it is largely in the discretion of the court; for if, even at the hearing of the cause, it should appear that a cross-bill should be filed to give to a defendant or some of the defendants iln Field v. Schieffelin, 7 Johns. Ch. 253, 254, Chancellor Kent, in dis- cussing this, said: "It is too late, after publication, to introduce new and further testimony to the matter in issue by the contrivance of the cross-bill. It would be doing, in an indirect way, per obliquiim, what is forbidden to be done directly." Hamersley v. Lambert, 2 Johns. Ch. 43-2. In Neal v. Foster, 34 Fed. 496, 499, the court, referring to the rule laid down by Chancellor Kent, said: "But the fact on which this artificial superstructure of caution and pre- vention is raised has long since ceased to exist in the courts of the United States. At one time all testi- mony taken in a suit in equity was taken by examiners or commission- ers on written interrogatories, and neither the parties nor their attorneys were allowed to be present at the examination, while the persons be- fore whom the testimony was taken were sworn to secrecy. The testi- mony was then returned into court sealed up, and remained so until the taking of testimony in the case was closed, when an order of publication was passed, and the depositions were opened. Now, however, under Equity Rule 67, the testimony may be taken orally before an examiner in the presence of the parties and their at- torneys who propound the interrog- atories, and, when taken on commis- sion and written interrogatories, the depositions may be and usually ar& opened and inspected as soon as re- turned to the clerk's office. In other words, there is no longer any secrecy in the premises, and there is now no reason why the period or fact of publication should be arbitrarily prescribed as the point of time be- yond which a cross-bill cannot be filed. The court may, sua sponte, direct the filing of a cross-bill when it appears necessary to a complete determination of the case at any time before final decree; and, in my judgment, there ought to be no fixed rule against a defendant's filing a cross-bill in a proper case before the final hearing; the objection of laches being disposed of in each case on the particular circumstances thereof, or by rule of court or. the supreme court." In Burford v. Kersey, 48 Miss. 642, 650, it was held that " the court itself would sometimes at the hearing, in its discretion, direct a cross-bill to be filed when it was necessary to bring before the court the rights of the parties, and the matters necessary to a just deter- mination." 300 DEFENSES IN EQUITY. [§ 222. affirmative relief, or when it appears necessary to a complete determination of the case, the court would grant leave to file it. And it might appear sufficiently necessary that such a bill should be filed in order to determine the \vhole controversy between the parties, when the court upon its own motion would •order it filed. And there have been cases where the court has allowed a cross-bill to be filed even after a decree;^ the usual and proper practice, however, is to file the cross-bill at the time of filing the answer, unless it be a bill against a co-defend- ant, in which case it would be necessary to wait until his an- swer was filed, as up to that time neither defendant could know what defense the other would set up.^ § 222. Leave to file. — The authorities can hardly be said to be harmonious as to this question. It is held by some of the courts that a cross-bill cannot be filed without leave of the court first obtained, while other courts have held that the fil- ing of a cross-bill is a matter of right, and that the party com- plainant in the cross-bill may file it without leave of court. It would seem, however, that the authorities might find har- mony in the practice that a cross-bill may, as a matter of right, be filed when it is within the time usually allowed defendants to file cross-bills, and when it does not undertake to bring about an unusual proceeding. In Neal v. Foster"" the court say: " A cross-bill is a regular and legitimate proceeding in a court of equity, to which any party defendant may resort in a proper case, without any special leave of the court, but in doing so he must conform to the law or rule which governs the case, or take the consequence." 1 Gould V. Stanton, 17 Conn. 377. to postpone the hearing of the cause In Chicago, etc. v. Connecticut Mut- or to delay the proceedings for the ual Ins. Co., 57 111. 427, 433, a cross- purpose of filing the cross-bill, did bill was permitted to be filed after a not apply in this case. The court decree, where the purpose of the bill said: "In a case so circumstanced was not to open the decree nor to as the one before us, it ought never disturb proceedings which had been to be too late to file such a cross-bill, had in the suit, but to set aside a so long as the court has control of sale of property; the court saying the cause." that the rules of practice as to the 2i|.viiig v. De Kay, 10 Paige, 319; proper time of filing a cross-bill being Vanderveers v. Holcomb, 31 N. J. Eq. such as would entitle it to be heard 105. with the original bill, and that the 3 34 Fed. 496, 498. defendant would not be permitted § 223.] DEFENSES IN EQUITY. 301 In QuicTv V. Lemon ' the court, after citing several cases where the court had held that the cross-bill might be filed without obtaining leave of the court, say: "The doctrine maj', therefore, be regarded as well settled that where a de- fendant has equities arising out of the subject-matter of the original suit which entitles him to affirmative relief, it would be error for the circuit court to refuse to permit a cross-bill to be filed." If, however, there has been delay and laches upon the part of the defendant desiring to file the cross-bill, the court might reasonably refuse to entertain such a bill. In BaTcer v. Oil Track Go? the court denied an application to file a cross-bill on the ground that the delay was unreason- able. § 223. Answer in the nature of a cross-bill. — In several of the states an answer in the nature of a cross-bill is per- mitted by statutes and rules of practice, but where this prac- tice obtains the parties are not deprived of the right to file a cross-bill, and it may be necessary, especially when it is neces- sary to bring in new parties to the litigation or to implead as defendants in the cross-bill some of the defendants in the orig- inal bill; for as a general rule, where this practice is permitted, the answer in the nature of a cross-bill can only be directed against the complainant in the original bill.' 1 105 111. 578, 585; Davis v. Ameri- decree, it is a cross-bill for all sub- oan, etc. Union, 100 111. 313. In stantial purposes. Marr v. Lewis, 31 Beaucharap v. Putnam, 34 111. 378, it Ark. 303, 35 Am. Rep. 553. was held that " the filing of a cross- In Alabama this is regulated by- bill wasamatterofrightandrequires statute. (Code, sees. 3801-4.) The no leave; but it does not necessarily answer may be treated as a cross- stay the hearing of the original bill against complainant in the orig- cause." In Bronson v. Railway Co., inal bill but not against defendants. 3 Wall. (U. S.) 383, it was held that Lehman, etc. v. Dozier, 78 Ala. 335. filing a cross-bill on a petition with- But this applies only when relief is out the leave of the court is an irreg- sought against the complainant in ularity, and such cross-bill may be the original bill and not against a set aside. co-defendant. Gilman, etc. v. New 27 W. Va. 454; Rogers v. Riessner, Orleans, etc. Ry. Ass'n, 73 Ala. 566. 31 Fed. 591. In Kentucky, Blackerby v. Hol- 3 The court, in Allen v. Allen, 14 ton, 5 Dana, 530, 534; Madison v. Ark. 667, held that when the defend- Wallace, 33 Ky. (3 Dana), 61. ant in his answer sets forth a com- In Michigan, Chancery Rule 133 plaint against the plaintiff which permits an answer in the nature of a calls for an answer and prays for a cross-bill. Haokley v. Mack, 60 Mich. 302 DEFENSES IN EQUITY. [§ 223. In an answer of this nature the allegations upon which the prayer for afHrmative relief is based should be grouped by themselves and so arranged as to give to the court and the ■opposite party a consecutive narration of the facts claimed; these allegations are generally introduced by a clause or state- ment in the following language: "This defendant, further answering in the nature of a cross-bill, says;" then number- ing each paragraph of this part of the answer as if it were a bill of complaint. It is not permitted, however, in the federal courts to obtain affirmative relief by an answer in the nature of a cross-bill. The statutes and rules of practice of the several states governing the practice in equity courts does not obtain in the federal courts, and so in the federal courts matters which •ordinarily require a cross-bill must be pleaded by a cross-bill.' Where a defendant in a case commenced in the state court, where the chancery rules of the state court provided that the 591. In Coach v. Circuit Judge, 97 Mich. 563, the court say : "Chancery- Rule 123 was intended to supplant the practice of filing a formal cross- bill by a simpler method." In New Hampshire, in the case of ■Clark V. Clark. 63 N. H. 267, the court held the defendant might have af- firmative relief upon an answer in the nature of a cross-bill. Cox v. Leviston, 63 N. H. 383. In West Virginia, see Leonard v. Smith, 34 W. Va. 443. In Goff >. Price, 42 W. Va. 384, 26 S. E. 287, the court held that an an- swer under the Code, ch. 135, sec. 35, setting up new matter for affirma- tive relief, must state the new mat- ter with as much particularity and certainty as though it were a formal cross-bill, and that it is necessary to name persons interested and make them parties, and call for a process against them, and contain prayer for relief. In Young v. Twigg, 27 Md. 620, it was said that cross- bills are not en- couraged in equity practice where it is possible that the answer may be viewed in the light of a cross-bill and the same purpose attained be- tween the parties to the original suit. In Tennessee in Nichol v. Nichol, 63 Tenn. (4 Baxt.) 145, it was held that the statute allowing an answer to be filed as a cross-bill is not lim- ited to matters merely defensive, but puts it on the same footing as a cross-bill. In Elliston v. Morrison, 3 Tenn. Ch. 280, where the answer filed as a cross-bill was merely defensive, it was held that it would be dismissed with the original bill. Passumpsic Savings Bank v. First Nat. Bank, 53 Vt. 82. 1 White V. Bower, 48 Fed. 186, where it was held that procedure in the United States equity courts is not affected by the laws of the state where the court is held, and that, therefore, a defendant cannot obtain aflBrmative relief by an answer in the nature of a cross-bill ; that under Equity Rule 90 affirmative relief must be sought by a cross-bill as in the English high court of chancery. Brande v. Gilchrist, 18 Fed. 465. § 224.J DEFENSES IN EQUITY. 303 defendant might obtain aflBrraative relief by an answer and an answer in the nature of a cross-bill, to the same extent that relief may be granted on a cross-bill upon the removal of the cause to the federal court after such an answer had been filed, it was held that he need not reframe his pleadings to conform to the federal equity rules by filing a cross-bill setting up the same facts and praying for relief thereof. The court, after reciting that an answer of this nature was proper under the rules and practice of the state court where it had been filed, said: "Xo summons or subpoena is issued on this answer in the nature of a cross-bill, but the complainant is required to answer or demur to the same without further process. When this cause was removed from the state court, therefore, the complainant was in court, both on the bill and the cross-bill. The issues as to the bill and answer were made up, and the complainant was in default as to the cross-bill. We do not think that the equity rules of the federal courts require a re- framing of the pleadings to conform to the practice that must have obtained had the suit been originally brought here. After an equity suit is brought in the United States court, subsequent proceeding are of course governed by the federal equity rules, but, on removal, the rights of parties are exactly the same as when the case -was taken from the state court, and are not to be changed except so far as is required by the fact that the equity and law jurisdictions of the federal courts are entirely distinct." ' § 224. Process, when necessary. — What has been said un- der prayer of the cross-bill^ is somewhat applicable here. In the federal court the usual process of subpoena to appear and answer the cross-bill is necessary and it must be served on the defendants in the cross-bill. In Lowenstein v. Olidewell ' the court say : " According to the established practice in equity, the service of a subpoena on the defendants in the cross-bill, although they are parties in the original bill, and in court for all the purposes of the orig- 1 City of Detroit v. Detroit City Sebring, id. 472; Dunn v. Clarke, 8 Ey. Co., 55 Fed. 569. Pet. 1 ; and for application of anal- '^ Ante, § 218. ogous principles to parties to cross- 3 5 Dill. (U. S.) 335, 337; Eckert v. bills, see Schenck v. Peay, 1 Woolw. Bauert, 4 "Wash. (U. S.) 370; Ward v. (U. S.) 175. 30i DEFENSES IN EQUITT. [§ 224> inal bill, is necessary to bring them into court on the cross- bill, unless they voluntarily enter their appearance thereto,, which is the usual practice. And the general chancery rule is, that service of the subpoena in chancery to answer a cross- bill cannot be made upon the solicitor of the plaintiff in the original bill. In the chancery practice of the circuit courts of the United States there are two exceptions to this rule: (1) in case of in- junctions to stay proceedings at law, and (2) in cross-suits in equity, where the plaintiff at law in the first and the plaintiff in equity in the second case reside beyond the jurisdiction of the court. In these cases, to prevent a failure of justice, the court will order service of the subpoena to be made upon the attorney'' of the plaintiff in the suit at law in the one case, and upon his solicitor in the suit in equity in the other. It not infrequently occurs that the facts constituting defend- ant's defenses to an action or judgment at law are of a charac- , ter solely cognizable in equity; and in suits in equity it often- happens that the defendant can only avail himself fully and successfully of his defense to the action through the medium of a cross-bill. In suits in these courts the plaintiff is usually a citizen of another state, and hence beyond the jurisdiction of the court, and in such cases defendants who desire to enjoin proceedings at law, and defendants in equity cases who desire to defend by means of a cross-bill, would, but for this rule of practice, be practically cut off from their defenses by reason of their inability to make service on the plaintiff in the action. It would be in the highest degree unjust and oppressive to- permit a non-resident plaintiff to invoke the jurisdiction of the court in his favor, and obtain and retain, as the fruits of that jurisdiction, a judgment or decree to which he was not in equity entitled, by remaining beyond the jurisdiction of the court whose jurisdiction on the very subject-matter, and against the very party, he had himself first invoked. The reason of the rule would seem to limit it in equity cases to cross-bills either wholly or partially defensive in their character, and to- deny its application to cross-bills setting up facts not alleged in the original bill, and which new facts, though they relate,, as they must, to the subject-matter of the original bill, are- made the basis for the affirmative relief asked." § ii25.] DEFENSES IN EQUITY. 305 But where an answer in the nature of a cross-bill is permitted, process is not necessary, for the parties are already in court, and will be required to meet the answer in the nature of a cross-bill as required by the practice of the court. In some jurisdictions it is the practice to take a rule on defendants named in the cross-bill who are parties to the original bill, re- quiring them to plead, answer or demur by a day named; this rule or order may be served upon them; and if persons not parties are made defendants to the cross-bill, summons must be issued, or notice published, tiie same as though it were an orig- inal bill.i jj 225. Defenses to the cross-bill. — Defenses to a cross-bill are quite like defenses to the original bill; they are by (1) de- murrer, (2) plea, (3) answer. (1) By demurrer. If the relief sought by the cross-bill is not equitable relief, the court would have no jurisdiction to grant it,. and the bill would be subject to a demurrer.^ Or where the allegations of the cross-bill are not germane to the case made in the cross-bill; ' or, if the rules and practice of the court will not permit the cross-bill to be filed in the particular case; or, where the matters set up in the cross-bill are purely defensive and might be taken advantage of by answer, the bill will be demurrable; or where the allegations of the cross-bill are inconsistent with or contradict the allegations of the an- swer. And where there was no adequate averments in the cross-bill to show title in the defendants to the subject-matter of the case, it was held that this defect should have been taken advantage of by demurrer.* 1 Fleece v. Russell, 13 111. 31; Mich- 2 1 Story, Eq. PI., sees. 633, 633. In ael V. Mace, 137 III. 485, 37 N. E. 694. Jackson v. Simmons, 39 C. C. A. 514, In Kingsbury v. Buckner,134U.S. 651, 98 Fed. 767, it was held that a cros,s- it was held that no service of process bill which seeks afijrmative relief is is necessary upon the plaintiflf in the in the nature of an original bill; original bill who is an infant. In that it does not fail with the dis- Hall Lumber Co v. Gustin, 54 Mich, missal of an original bill, and there- 634, it was held that the cross-suit is fore, although relating to a subject inseparable from the original; that germane to the matter of the original both constitute one cause, and any bill, it must rest upon grounds of one chargeable with notice of the equitable jurisdiction that are in- sult is chargeable with notice of the cumbent and recognized, cross-bill. Fidelity Trust, etc. Co. v. 3 Story, Eq. PI., sec. 6-'9. Mobile, etc. Ry. Co., 53 Fed. 8.50. 4Greenwaltv.Dunoau,16Fed.35,37. 30 306 DEFENSES IN EQUITY. [§ 225. In Bech v. BecTc^ the court say: "There can be no doubt, I think, that a cross-bill which merely sets up matter which the defendant may make equall}' available and effectual as a de- fense by answer is demurrable, for in such case the cross-bill is not only unnecessary but useless. The only purpose it could serve in such case would be to incumber the record and add to the expense of the litigation. And it is also well settled that a defendant can only use a cross-bill against a complainant as a means of defense. It must, therefore, be confined to the matter put in litigation by the original bill, and cannot be used by a defendant as a means of obtaining relief against the complainant in respect to a cause of action distinct from and wholly unconnected with the complainant's cause of ac- tion." But a demurrer for want of equity will not lie to a cross-bill for the reason that the defendant is entitled to rely upon the jurisdiction conferred by the allegations of the origi- nal bill, the cross-bill being simply a means of defense. " 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 jurisdic- diction."^ " But if the cross-bill seeks relief, it is indispensable that it should be equitable, otherwise the bill will be demurrable; for to this extent it is not a pure cross-bill, but is in the nature of an original bill, seeking further aid of the court beyond the purposes of defense to the original bill, and under such circum- stances the relief should be such as in point of jurisdiction the Courtis competent to administer."^ And it has been held that where an answer in the nature of a cross-bill contained no equitj' it required no answer.'' (2) By plea. A cross-bill will not be subject to a plea to the jurisdiction or to the person of the defendant in the cross-bill, for by bringing the original case the plaintiff has affirmed that 143 N. J. Eq. 39, 41: Newberry v. cient equity to give the court juris- Blatchford, 106 111. 584. diction, a general demurrer to the 2 Story, Eq. PI., sec. 628. Want of cross-bill for want of equity will not equity in a cross-bill brought by way be sustained. o£ defense to the original bill is no ^ Gilmer v. Felhour, 45 Miss. 627, defense to the cross-bill. Lambert v. 630; Story, Eq. PL, sec. 629. Lambert, 52 Me. 544. If the original * Horton v. Mercier, 31 Ga. 235. bill is retained and contains sulB- § 225.] DEFENSES IN EQUITY. 307 the court has jurisdiction of the cause and of the parties, and that the case is properly brought in the equity court. If the cross-bill be filed by one who cannot bring an action in his own name, as by an infant, an idiot or lunatic, no doubt a plea to the person of the plaintiff in such case would be sustained. All pleas in bar to which an original bill would be liable may be interposed when proper to meet the case made by the cross- bill.^ And the same rule obtains here as obtains to an original bill where the plaintiff fails to reply to the plea, in which case the complainant admits the facts set up in the plea to be true. And so it has been held that where a complainant in a cross- bill fails to reply to a plea of a former adjudication, he thereby admits the truth of the facts set up in the plea, and the only question at the hearing on the plea is its sufficiency, and that evidence offered in support of the cross-bill is properly ex- cluded.^ (3) By answer. As a general rule an answer to a cross-bill cannot be required until the original bill has been answered. An answer to a cross-bill performs the same or a similar office as an answer to the original bill; bj'^ it the issues of fact are made up as to the material allegations in the cross-bill, which must be answered. An answer on oath to a cross-bill may be required the same as though it were an original bill if the cross-bill alleges new matter." A cross-bill proper may be taken as confessed if it is not answered, in which case its alle- gations are taken as true. A general replication in such case will not put in issue the allegations of the cross-bill.* In Whyte v. Arthur,^ where the absence of a general repli- cation to the original bill, where defendants had filed a cross- bill, was discussed, it was held that the defendant's answer to the cross-bill was substantially, and for all practical purposes, a replication to the defendant's answer to the original bill. The complainant in the original bill and defendants in the cross-bill have the right to answer the cross-bill. The time for such answer may be said to be the time usually allowed to answer original bills filed in the court, but if the defendants in the cross-bill do not answer and the complainant goes to trial 1 Story, Eq. PI., sec. 832. * Coach v. Circuit Judge, 97 Mich. 2 Knowlton v. Hanbury, 117 111. 471. 563; 2 Barb. Ch. Pr. 135. 3 Byrd V. Sabin, 8 Ark. (8 Eng.) 279. 5 17 N. J. Eq. 531, 534. 308 DEFENSES IN EQUITY. [§§ 226, 227. in the original bill without requiring an answer to his cross- bill, he will be beld to have waived his right to an answer and to have abandoned his cross-bill. If he relies upon his cross-bill, he should insist upon an answer, and if it is not answered should enter an order pro confesso; in which case the allegations in the cross-bill, at the hearing, must be taken as true,' having the same effect as though proven in the case.^ But if the cross-bill is inconsistent in its allegations of fact with the admissions in the answer to the original bill by the complainant in the cross-bill, they cannot be taken as true though unanswered.^ § 226. Replication of complainant in cross-bill. — The rep- lication to the answer to a cross-bill serves the 'same pur- pose as the replication to an answer to an original bill.* It is a general denial of all the material matters set up in the answer and puts in issue all questions of fact involved in the cross-bill and the answer. It is necessary that it should be filed, otherwise the facts well pleaded in the answer that are responsive to the material allegations in the cross-bill will be taken to be true upon the hearing, provided they are consist- ent with the answer to the original bill.' § 227. The hearing. — The original bill and the cross-bill are generally heard together, for they usually constitute but one case. For many purposes an original bill and cross-bill in chancery are considered as one suit and are ordinarily heard together, and the rights of all the parties in respect of the matter litigated are settled by one decree.^ It is not, how- ever, indispensably essential that the cross-bill and original 1 Reed v. Kemp, 16111. 445; Thoma- against complainant in the original son V. Neeley, 50 Miss. 310; Blair v. cause on the hearing, and will have Reading. 99 111. 600; Coach v. Circuit the same effect as if he had ad- Judge, 97 Mich. 563; Metcalf v. Hart, mitted the same facts in the an- 3 Wyo. 513. swer." Kidder v. Barr et al., 35 N. 2 White V. Buloid, 2 Paige Ch. (N. H. 335. Y.) 164. In Griswold v. Simmons, ^ Prentiss Tool Co. v. Godchaux, 66 50 Miss. 137, 141, the court say: "A Fed. 234. crossbill does not stay proceedings * Post, § 238. in the original cause except by order * Ante, § 199. of the court upon motion and notice. ^ Whyte v. Arthur, 17 N. J. Eq, 2 Barb. Ch. Pr. 184; 2 Danl. Ch. Pr. 531, 524; Story, Eq. PI., sees. 400, 401; 1656. If the cross-bill be taken as 8 Ban!. Ch. Pr. 1751, 1753. confessed, it may be used as evidence § 228.] DEFENSES IN EQUITY. 309 bill should be heard together, but it would seem that a decree upon a hearing of a cross-bill would not be considered as a final decree subject to an appeal. In Ex parte Raihvay Co} the court say: "It matters not that at a former day in the term a special decree had been rendered upon the subject-matter of the cross-bill, and that an appeal from that decree had been taken; for 'a cross-bill is a mere auxiliary suit and a dependency of the original.' As we have said in Ayers v. Carver etal.^ ' both the original and the cross-bill constitute one suit ' and ought to be heard at the same time. Consequently, ' any decision or decree in the pro- ceedings upon the cross-bill is not a final decree in the suit, and not the subject of an appeal to this court.' The decree, whether maintaining or dismissing the bill, disposes of a pro- ceeding simply incidental to the principal matter in litigation and can only be reviewed on an appeal from the final decree disposing of the whole case." IV. Disclaimer. § 228. The nature of the disclaimer. — While a disclaimer is not, strictly speaking, a pleading, it is usually so treated. It has been said that it is a species of answer, as it is the first reply or pleading to the complainant's bill; and in some sense it is a plea in bar for the reason that it alleges that the com- plainant has no right of action against the adverse party.' By a disclaimer a defendant renounces all right, title or interest to the subject-matter of the demand made by the plaintiff's bill; this renunciation must be full and complete without any re- serve whatsoever; not merely a denial of "claim in a partic- ular representative character, or to the full extent to which it has been charged, while the right to claim in a different char- acter, or to a more limited extent, is in no wise abandoned."* The disclaimer must be so complete and without reserve that it will stop the defendant from ever at any time setting up a claim as between the parties and privies to the right renounced, 195U. 8. 221, 225; Ayers et aL v. 'Prescott v. Hutchinson, 13 Mass. Carver et al., 17 How. (58 U. S.) 591, 441; Story, Eq. PI., sec. 838. 596; Ayers v. Chicago, 101 U. S. 184. « Bently v. Cowman, 6 Gill & John. 2 17 How. (U. S.) 591. (Md.) 152, 155. 310 DEFENSES IN EQUITY. [§ 229. and operates as an estoppel, but only to the extent actually enibraced in the disclaimer.^ § 229. When it can be interposed. — It follows from what has already been said as to the nature of the disclaimer that it can only be interposed when the defendant has no interest in the subject-matter of the suit and is subject to no liability. And this cannot always be determined by the facts alleged in the disclaimer itself; it must necessarily depend upon the alle- gations in the bill of complaint, for if the bill of complaint sets forth a case which shows that the defendant is really interested, or, if it appears that in order to settle the rights and liabilities of either the complainants or defendants, or any of them, the defendant should be retained as a party to the suit and should answer the material allegations in the bill of complaint, in such case it would not be proper to allow the defendant to file a disclaimer; and if he disclaims when he ought to answer, the court may order his disclaimer stricken from the files. As, for example, if the complainant in the material allegations in his bill of complaint alleges that the defendant has been guilty of fraud and has thus obtained a title to the subject-matter of the litigation, or has beclouded the title of the complainant, it would not be permitted the defendant to raereh'^ file a dis- claimer in such case, for the complainant would be entitled to a full and complete answer to the material allegations in his bill; and so if the bill alleged that the defendant was in pos- session of any particular or peculiar knowledge bearing upon the equitable rights of the complainant and concerning which relief is sought by the bill, the defendant will be compelled to answer the bill of complaint, and could not be dismissed by a mere disclaimer of all interest or liability as to the subject- matter of the controversy. In Isham v. Miller,^ where the bill filed by the complainant 1 Tappan v. Boston, etc. Co., 157 plaintiff niay have a right to an Mass. 84, 32. answer, notwithstanding a dis- 244 N. J. Eq. 61. "A defendant claimer; and in such a case the de- cannot, by a disclaimer, deprive the fendant cannot shelter himself from plaintiff of the right of requiring a answering by alleging that he has full answer from him, unless it is no interest." Story, Eq. Pi., sec. 840; evident that the defendant ought Glassington v. Thwaites, 3 Russ. not, after such disclaimer, to be re- (Eng.) 458. tained as a party to the suit. For a § 2-29.] DEFENSES IN EQUITY. 311 evidenced to the court that the plaintiff was entitled to an answer, and that the motion to strike defendant's disclaimer from the files ought to prevail, the court say: "The ground of this motion is that the actionable facts alleged in the bill make a case against which a disclaimer constitutes no defense. Or, to state the ground in another form, the complainant says, for a defendant standing in the position which the defendant in this case does, to say, I disclaim all right and interest in the subject-matter of the litigation, neither shows that the com- plainant is not entitled, as against the defendant, to the relief he asks, nor that the defendant is entitled to a dismissal. A disclaimer is a mode of defense, and if it prevails the defend- ant must be dismissed, and, as a general rule, he will have a right to be dismissed with costs to be paid by the complain- ant. If, however, a defendant attempts to disclaim in a case where his disclaimer does not entitle him to a dismissal, but he must, notwithstanding his disclaimer, still be retained as a party defendant, in order that the relief which the facts al- leged in the bill show the complainant to be entitled to may be decreed to him, the pleading, being useless to the defend- ant and without effect in the cause, except as an obstruction, will be ordered to be taken from the files." In Ellsworth v. Curtis ' the chancellor said : " The defend- ant cannot, by a disclaimer, deprive the complainant of the richt of requiring a full answer from him, unless it is evident that the defendant ought not, after such disclaimer, to be con- tinued a party to the suit." Where the bill averred a fraudulent transfer, it was held that a party defendant obtaining such a transfer should not be discharged on his mere disclaimer. The court say : " A party cannot in this manner get rid of his liability to answer a suit where the statements of the bill show him to be a proper or necessary party." ^ The defendant can only be permitted, therefore, to interpose a disclaimer when from all the facts alleo-ed in the bill of complaint, as well as in the disclaimer, it appears that the defendant should not be retained as a party 1 10 Paige Ch. (N. Y.) 105, 107. property, the subject of the suit, he ^Bromberg Bros. v. Heyer Bros., cannot be compelled to answer as to 69 Ala. 23, 24. But where the de- after-value of such property. Tooker fendant disclaims all interest in v. Slosson, 4 Edw. Ch. (N. Y.) 114. 312 DEFENSES IN EQUITY. [§§ 230-233. to the suit, and as to him the case should be dismissed with costs. § 230. When both au answer and disclaimer may be filed. There may be cases where it would be proper and necessary that the defendant should file both a disclaimer and an an- swer, but in such case the disclaimer and the answer filed must refer to different and separate parts of the bill, and must not be repugnant to each other. The answer thus filed will be subject to exceptions when insufficient.^ § 231. A disclaimer acts as an estoppel.— The defendant by filing a disclaimer alleges, as we have seen, that he has no claim or interest in the subject-matter in controversy, and by it he obtains a decree of dismissal of the complainant's bill as to him ; and having reaped the benefit of a disclaimer he is forever estopped from asserting, as between himself and the parties to the suit and their privies, any interest in the subject-matter involved. It operates as a complete bar to any claim he may afterwards set up to the extent of any interest in the matters embraced in his disclaimer. Even if the disclaimer be untrue in fact it is binding upon him; the defendant may, however, reserve his rights against his co-defendants, but in order to do this he must make a special reservation in his disclaimer.^ § 232. If the disclaimer is filed on account of mistake or ignorance. — If, after filing a disclaimer, the defendant dis- covers that it is untrue, and that it was filed by reason of a mistake, or ignorance as to his real interest, and is in no way the result of bad faith, the court, upon a special application and a strong showing of such facts, setting out in detail his real interest, vrill generally permit the defendant to withdraw his disclaimer and answer the bill, but if he " takes no steps to get rid of the effect of the disclaimer he will be forever barred; because it is matter of record."' § 233. Signing, rerifying, filing and serving. — If answer under oath is waived, the disclaimer need not be verified, but should be signed by the disclaimant and his counsel. In some jurisdictions the name of the disclaimant may be signed by his counsel, the same as counsel may sign for defendant an an- 1 Ellsworth V. Curtis, 10 Paige (N. s 1 Danl. Ch. PI. & Pr. 709; Albert- Y.), 105, 107. son v. Reding, 3 Murph. (JST. C.) 283; 2 1 Danl. Ch. PI. & Pr. 707. Seton v. Slade, 7 Ves. Jr. 265. § 233.J DEFENSES IN EQUITY. 313 swer when there is a waiver of an answer under oath, but the wisdom of such a practice is subject to criticism, because by the disclaimer defendant makes such an important waiver of rights in the subject-matter of the litigation, not only in the pending litigation but for all time, he is forever estopped from claiming an interest inconsistent with his disclaimer. Indeed, it has been said that counsel, unless especially authorized, would not be able to make so important a waiver for his client. There is enough at least in the criticism to warrant one in saying that the better practice would be to require the defend- ant to sign for himself the disclaimer, whether the bill de- mands a sworn answer or not. If a sworn answer is not waived the disclaimer should be verified, for it is, under such circumstances, to a certain extent at least, an answer to the bill. It should, when completed, be filed in the cause and a copy served on the solicitors in the case. The disclaimer should be made and filed at the time an answer is required by the rules and practice of the court.^ 1 1 Danl. Ch. PI. & Pr. 708. As to tbe rule in New Jersey see Dickerson v. Hodges, 43 N. J. Eq. 45. The court in its opinion say: "The rule upon this subject, as given in Smith's Practice, is as follows: 'A disclaimer, being accompanied with an answer, is put in upon oath. It must also be signed by the defendant, and in no case can such signature be waived with propriety, since no rec- ord will be received without signa- ture, which tends to the prejudice of the rights of the defendant.' 1 Smith's Cb. Pr. 275. Mr. Barbour states the rule in substantially the same words. 1 Barb. Ch. Pr. 171. And Mr. Daniell says the court may give a defendant leave to file a dis- claimer without oath, but not with- out signature, and that when a dis- claimer is filed without oath the de- fendant's signature should be at- tested by some person competent to be a witness. He also says that it must be signed by counsel. 1 Danl. Ch. PI. &Pr. 407. "The signature of counsel is not necessary. All pleadings in equity, according to the practice in England, must be signed by counsel, but the rule is different in this state. The signature of counsel is only neces- sary when required by statute or an established rule of practice. An an- swer is suflBoient if signed by a so- licitor, or by the defendant himself. Freehold Mutual Loan Ass"n v. Brown, 1 Stew. Eq. 43. Nor is an oath necessary in cases where the complainant has, as in this case, waived his right to compel the de- fendant to answer under oath. A disclaimer is regarded as in the nat- ure of an answer, and is therefore to be put in under oath when the defendant is required to answer un- der oath, but not otherwise. This is apparent from Mr. Smith's state- ment of the rule. He says, ' A dis- claimer, being accompanied with an answer, is put in upon oath.' There seems to be no other reason for re- quiring an oath. But a pleading of 314 DEFENSES IN EQUITY. [§ 234. §234. The decree in case disclaimer is filed, — The de- fendant will not always be allowed to file a disclaimer and thus be excused from making an answer to the bill of com- plaint.' If, however, he is permitted to file a general disclaimer to the bill of complaint, as a general rule the court must dis- pose of the case as to him by dismissing the bill, but if it is necessary to protect the rights of the other parties in the case, the disclaimer may be held until the hearing of the cause. In Sawyer v. Camjyhell et al.,- where the defendant appeared and filed a disclaimer disclaiming "all manner of right, title and interest whatever in and to, and all and all manner of claims or liens upon the real estate, or any part or parcel thereof described in said bill of complaint, and denied all and all manner of unlawful combinations, confederacies," etc.; and where there was also a stipulation by the disclaimant and the other defendants releasing him from liability, the court below ordered that the bill of complaint stand dismissed as to the dis- claimant; but the supreme court held that the proper practice would have been to have retained the disclaiming defendant, but that there was no reversible error in the action of the court in dismissing him. The court say: "The bill waived the oath to his answer, and it would not have been evidence, as an admission, or otherwise, against his co-defendants. No this kind is manifestly intended to relating to the conduct of a suit, yet, have an effect which an answer does even in such matters, he cannot not ordinarily have. It is intended surrender a substantial right of his to operate as a release. An oath is client without his client's consent, not necessary to tlie due execution Howe v. Lawrence, 2 Zab. 99. of such an instrument, but the sig- "A disclaimer being intended to nature of the party is. Under the operate as a release, there is mani- authority conferred by a retainer, a fest propriety in the rule requiring solicitor lias no authority to surrender that it shall be signed by the defend- any substantial right of his client, ant himself, and that his signature A solicitor cannot give up the se- shall be attested. Such requirement curity ot his client without actual is necessary for the due protection of payment, unless he is specially au- both parties, and simply puts such thorized to do so. Terhune v. Colton, transactions, occurring in the course 2 Stock. 21. Nor can he accept pay- of a suit, on the same footing as like ment of a part of a debt in satisfac- transactions occurring outside of a tion of the whole without like au- judicial proceeding." thority. Watts v. Frenche, 4 C. E. i See ante, % 228. Gr. 407. And, while an attorney or nSOIIl. 186, 204; Perkin v. Stafford, solicitor may make valid agreements 10 Simon's Ch. 562. § 235.] DEFENSES IN EQUITY. 31& discovery was sought by the bill, and he was not called upon to account; no relief of any other character was asked against him; no objection to his dismissal from the suit was inter- posed, either at the time the order was made, or during the term, or at any time thereafter. . . . There is nothing .in the record to indicate or raise a presumption that disclaimant is in any way legally liable to respond to appellants, or that if he had remained a defendant it would have been of even the slightest advantage to them; or that they would in that event have pursued a course other than they did. In this state of the case, to reverse the decree solely on account of his dismissal from the cause would be sheer technicality." § 235. Costs. — The question of costs is one resting largely in the discretion of the court; as a general rule, however, when the defendant disclaims, the bill as to him is dismissed with costs. But if there are any circumstances which would in- duce the court to believe that the bill was filed because of the conduct of the defendant, or because of his negligence, or if in any way he was responsible for having been made a de- fendant, the court may refuse to award him costs.^ 1 In Buchanan v. Greenway, 11 Martin et al., 19 111, 105, parties who Beav. (Eng.) 58, where a party de- were made defendants to the bill fendant in a suit for foreclosure in- under an averment that they claim, terested in the equity of redemption or pretend to claim, title to the land, filedadisclaimer and stated in it that may file a disclaimer of all interest he did not claim and never claimed therein and become entitled to costs. any interest whatever, it was held Kitts et al. v. Wilson et al., 130 Ind. upon the hearing that he was en- 493; Manning v. Heady, 64 Wis. 630; titled to his costs.' Benbow v. Davies, Keyser v. Meusback, 77 Tex. 64; 11 Beavan, 369. In Finch et al. v. Tate v. Wyatt, 77 Tex. 492. 316 DEFENSES IN EQUITY. [§ 236. 236. A chart of defenses. — bo d o Q d o g B s p UJ Cf S rS a o -3 13 cT tx -^ M cc eu ..• is "4-1 O C (D a o '■3 ^ S -fl o 5tH o 3! g ^. a =2 fd CO !zi H O O W o o a. 03 43 r^ a m □ g •TS .a c O s .sc p. ri s s ^i o Q l*-i •r- i o •^ Tt w m a o © U-i n O c «J cd ■•^ c -« o ^ a S '1-5 o S a '2 a. a 43 3 o a o (1) (1) V -a J3 4^ T3 .a 43 a 3 a O o 0) o u s o 43 r/1 r/j M CO ■•n en rt h rt 11 >^ rrl fil 0) o a> 1) tV (P Oh CL, Pi Ph PL| PLi 03 .a Ph a - C8 a o — . 0) ■« ce ® ^ cc -a o a M c a — s ® !3 : 2 o a »- 3 01 '3 5s s fe s - 2 (^ a"^ s -^ a u-t "- 03 o 43 I > a a i«i .2 '3 ■" jSl^iJ insul r con lay fi a t. g a o o & B &:( m 43 a, □ C ce 03 o & ■a 4i i -c _i^ <4-7 "" S-s^ § o .2 CO S^'S.^S ■0 .a bill pan h. By nying; format! o a bJO o a o ? '> le bb a fe: C (D rj cS S ai ca -a -5 J3 a •a b 'S '43 CS 43 M >i. a =2 03 1 ^ 03 jO o o S ., 6C o =4-1 c g ^ g .2 >>.S >> ■0 M T3 43 ^ 43 □ JS J3 o a 03 a F CO 03 a 'n Sii i CO 3 .a 1-^ Tl tin P< al C8 a a o< « CO Tl ' 1^ t/j 'Fo 3 fl) 'a cS 43 a J n1 >. ■a .0 j= as j= a 43 O c a. S a Ph a CHAPTER IX. THE REPLICATION. § 237. The nature of the replication. 238. When complainant should file a replication. 239. Filing a replication waives the right to except. § 240. Time for filing the replication. 241. The form of a general replica- tion. 242. Waiver of the replication. § 237. The nature of the replication. — The replication IS the last issuable pleading in an equity case, and is made and filed by the plaintiff in reply to an answer or a plea. For- merly there were two kinds of replications: (1) General, and (2) special. The special replication Avas interposed when new matter in the answer was set out as a defense, and if the spe- cial reply still contained new matter by way of answering the allegations of the answer, the defendant might meet it by a rejoinder; and the plaintiff could reply to this and to any new matter it contained by a surrejoinder, which if new matter was still set up could be met by a rebutter, and this in like manner by a surrebutter; these pleadings continuing until the case was at issue upon all the material facts involved. But special replications have long since gone out of use except as the\^ have to some extent been retained by codes of practice in some of the states. The practice now is to permit the com- plainant to amend the bill, if upon the coming in of the answer he should discover it was necessary to allege in his bill matter to meet the claims of the defendant, and require the defend- ant to answer the amended bill.' In Storms v. Storms'^ the vice-chancellor directed a special replication to be stricken from the files. The court say: " The ancient practice of the court of chancery allowed special repli- cations to be filed. But it was found to lead to great incon- venience and was abolished, or rather discontinued. . . 1 McClane's Adm'x v. Shepherd's Ex'x, 21 N. J. Eq. 76, 78; Chouteau et aU V. Rice et al, 1 Minn. 106. i 1 Edw. Ch. (N. Y.) 858. 318 THE EEPLICATION. [§ 23Y. ' Special replications,' says Judge Hinde, ' with all their con- sequences, are now out of use, and the plaintiff is to be re- lieved according to the form of the bill, whatever new matter may have been introduced by the defendant's plea or answer. . . . Instead of putting in a special replication, the com- plainant might have moved to amend his bill, by charging the pretenses of the defendant as to the want of jurisdiction, and alleging the contrary to be true. And, therefore, it is said in the books that the complainant, by his pleading, not only puts a bill upon file, but also, virtually, a special replication. Whenever he sets out and negatives the alleged pretenses of the defendant, the remedy, it will be seen, is open to the com- plainant without a distinct special replication." In the United States court this is regulated by rules of prac- tice.' In some of the states it has been permitted by special enactments, where new matter is alleged in an answer which constitutes a claim for affirmative relief, — that is to say, an answer in the nature of a cross-bill. In West Yirginia ^ such a practice is permitted where the answer alleges new matter constituting a claim for affirmative relief, but the court in Elliott v. Trahern ^ say : " As to the practice of filing a special replication, we find that it has be- come obsolete." In Sanders' Equity it is said " that the general replication is 1 U. S. Eq. Rule 15. " No special only puts in issue the truth and suf- replication to an answer shall be floienoy of the matter stated in the filed."' And that "if any matter bill and answer. If it is necessary alleged in the answer shall make it for a complainant to put in issue any necessary for the plaintiff to amend fact on his part in avoidance of mat- his bill, he may have leave to amend ter set up by a defendant, he must the same with or without payment do it by proper charges in his bill, of costs, as the court, or judge He may in the original bill antici- thereof, may in his discretion di- pate the defense that will be made, rect." This in Southern Pac. Ry. and allow any matter necessai-y to Co. V. United States, 168 U. S. 1, 57, explain it; or, omitting all I'efei-ence was held to mean that a general to the defense, he may, on the com-, replication is always sufficient to ing in of the answer, introduce the put all material allegations of an an- new matter into the case by an swer or an amended answer in issue, amendment to the bill. Story, Eq. unless it is imperatively required by PI., sec. 878; Tarlton v. Vietes, 1 Gil. rules of pleadings that the bill (ID.) 470. shall be amended. In White v. Mor- ^ Code, p. 810, ch. 125, sec. 57. rison, 11 111. 361, 366, it was held that » 85 W. Va. 634, 642; Kilbreth v. special replications in chancerj' are Root's Adm'x, 33W. Va. 600, 11 8. E. now disused; a general replication 21, § 23S.] THE EEPLICATION. 319 now only used for raising new issues or supplying a defect in the statement of the bill. The special replication has become obsolete both in England and in this country. The office of the special replication is supplied by the filing of an amended bill." ' The court further say, "this provision of the statute must be regarded as creating an exception to the general rule of practice established both in England and in this country, and the proper course to be pursued by a plaintiff is to amend his bill, unless, as contemplated by the statute, new matter is set up in the answer which entitles the defendant to affirma- tive relief." "Where, in Michigan, the defendant by a rule of practice is permitted to claim in his answer the benefits of a cross-bill which sets out by proper averments facts entitling him to af- firmative relief and prays the court for such relief, it was held that a general replication puts the original case, as made by the bill and answer, at issue, but it does not traverse the aver- ments of the answer which are the basis of the cross-bill.- The general rule, however, in this country and in England is that no special replication will be allowed. And where new mat- ter is set up in the replication it will be stricken out as sur- plusage.' § 238. When complainant should file a replication. — The same rule of practice with like results obtains in the matter of replying to an answer as in case of replication to a plea.^ If the defendant by his answer has admitted the material allega- tions of the bill to an extent that, admitting the answer to be true, the plaintiff would be entitled to the relief prayed for in his bill, no replication is necessary, but the case should be set down for hearing upon bill and answer, in which case the court may order a decree upon the facts set forth in the bill and ad- mitted or found to be true by the allegations in the answer. But if the allegations of the bill are traversed by the answer, or if new matter by way of defense to the case made by the bill is set up in the answer, and the plaintiff desires to trav- 1 Mitf. Eq. PI. 332; Miller's Heirs v. 98 N. C. 414, 4 S. E. 197; Wilt v. Huff- Molntyre, 6 Pet. (U. S.)61; Chalfants man, 46 W. Va. 478, 33 S. E. 379. V. Martin, 35 W. Va. 394; Briggs v. 2Coach v. Adsit, 97 Mioli. 563. Enslow, 44 W. Va. 499; Norfolk Ry. 3 Newton v. Thayer, 34 Mass, (17 Co. V. McGarry, 42 W. Va. 395, 26 S. Pick.) 129. E. 397. And see Houston v. Sledge, * Ante, § 176. , 320 THE REPLICATION. [§ 239. erse these facts, he should file a general replication, which is held sufficient to deny all the facts alleged in the answer.' If the plaintiff fails to file a replication, he will be held to have abandoned his right to traverse the allegations contained in the answer, and the answer will be taken as true, and no evi- dence can be given by the complainant to contradict it.^ But where the answer contains improper and immaterial allega- tions no replication is necessary,^ nor is a replication necessary to a disclaimer.* § 239. Filing a replication waives the right to except.— It is a general rule in pleading that the filing of an issuable plea or answer waives all formal objections to the pleading thus answered. As we have seen, if the answer to the bill of complaint is not sufficient, if it fails to fully and satisfactorily answer the material allegations of the bill, the complainant may except to it, and if the exceptions are sustained compel the defendant to answer the allegations that are the subject of the exceptions. The importance of this has been discussed.^ If the complainant fails to file exceptions to the answer, but instead thereof files a replication, thus putting in issue the facts raised in the answer, he waives the right to except, and no matter how defective the answer may be the replication will be treated as a waiver of such objections. In the case of Slater v. Maxwell ^ the court in discussing this 1 Alfred, etc. Brick Co. v. Trott, 16 2 Robertson v. Schwenk, 18 Pa. Co. App. D. C. 293. When [the trial is Ct. 577; Pierce v. West, Fed. Cas. had upon bill and answer and norep- 10,909; Byers v. Sexton, 23 Ark. 538; lioation is filed, according to the uni- Rogers v. Mitchell, 41 N. H. 154; form rule of practice in a court of Mills v. Pittman, 1 Paige Ch. (N. Y.) equity the answer must be consid- 490; Hall v. Clagett, 48 Md. 223; ered as true. Independent College Dyer v. Dean, 69 Vt 370; Henry v. V. Zeigler, 86 111. App. 360; County Ohio River Co., 40 W. Va. 334. of Cook V. Great Western Ry. Co., 119 3 Briggs v. Enslow, 44 W. Va. 499, 111. 218. Upon such a hearing the 29 S. E. 1008; Suydam v. Bartle, 10' complainant admits that all that is Paige (N. Y.), 94. And iu Wallace stated in the answer is true whether v. Field, 56 Mich. 3, it was held that it be responsive to the bill or not, where on a petition for execution for and that he has no ground for relief deficiency the answer did not set up except the facts which are substan- any material defense, or sufficient tially admitted in the answer to be to discharge the deficiency, the re- true. DeWolf V. Long, 3 Gil. (111.) ply thereto was 'unnecessary. 679; Martin v. Reese (Tenn., 1899), « Spoffard v. Manning, 3 Edw. Oh. 57 S. W. 419; Wilt v. Huffman, 46 W. (N. Y.) 358. Va. 473; Bierne v. Ray, 37 W. Va. 5^?ife, §195. 571, 16 a E. 804. 6 6 Wall. (U. S.) 268, 274; Lorton v. § 2iO.J THE REPLICATION. 321 question say: "The distinction which is generally made be- tween recent and remote acts or declarations of the defendant would hardly seem applicable to a case like the present. It is not necessary, however, to attempt to draw any nice distinc- tions in this particular, for the answer was not excepted to, and by the general replication the complainant has waived all objections to its sufficiency." But the filing of a replication which is held to deny the allegations of fact set up in the an- swer does not deprive the complainant of the benefit of the admissions of the defendant in the answer.' § 340. Time for filing the replication.— The time for filing the replication is fixed by rules of practice of the several courts. In the United States equity court after an answer is filed the complainant has until the next rule day to file exceptions to the answer for insuflBcienoy, and, if he files no exceptions, the plaintiff will have until the succeeding rule day to file a gen- eral replication.^ Seaman, 9 Paige (N. T.), 608; Mo Kim V. Mason, 2 Md. Ch. 510; Ring- gold V. Patterson, 15 Ark. 209. 1 In Cavender v. Cavender, 8 Mo- Crary (U. S.), 158, the court say: '• Nor does the fact that there is a general denial of the allegations of the answer by complainant's repli- cation deprive him of the benefits of the admissions contained in the answer. The purpose of the general replication is to put in issue any new matter set forth in the answer. It does not nullify the effect of an admission in the answer of an allega- tion of the bill." Story, Eq. PI., sec. 880. 2.Hendrickson v. Bradley, 29 U. S. C. C. A. 303, 85 Fed. 508. United States Equity Rule 61: " After an answer is f51ed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to thecourt,orajudge thereof; 21 and, if no exception shall be filed thereto within that period, the an- swer shall be deemed and taken to be sufficient." United States Equity Rule 66: Whenever the answer of the defend- ant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general replication thereto, on or before the nevt succeeding rule day thereafter; and in all cases where the general replication is filed, the cause sliall be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or I'efuse to file such replication within the pre- scribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit; and the suit shall thereupon stand dismissed, unless the court, or a judge thereof, shall, upon motion, for cause shown, allow a replication to be filed nunc pro tune, the plaintiff submitting to speed the cause, and to such other terms as may be directed." 322 THE KEPLICATION. [§§ 241, 242. § 241. The form of a general replication. — The form of the general replication has undergone verj many changes. At an early period the following form was used, and in some juris- dictions it is still retained : " 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 replication thereunto saith that he doth and will aver, maintain and prove his said bill to be true, certain and sufficient in the law to be answered unto by the said defendants, and that the answer of the said defendants is very uncertain, evasive and insufficient in the law to be replied unto by this repliant; with- out this, that any other matter or thing in the said answer contained, material or effectual 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 court shall direct, and humbly prays as in and by his said bill he hath already prayed." ^ The tend- ency, however, has been to very much abbreviate this form, retaining merely enough of it to show that the complainant, notwithstanding the answer of the defendant, still demands the relief prayed for in his bill of complaint. As, for example, in Michigan the form of the replication is as follows: "The complainant says that notwithstanding the answer of the de- fendant he is entitled to the relief prayed in his bill of com- plaint." § 242. Waiver of the replication. — "While the replication, as we have seen, is a pleading required to close the pleadings in the case and bring the case to issue upon the merits, still if the complainant has failed to serve his replication on the de- fendant, and the defendant proceeds to the trial of the cause without it, attends and cross-examines witnesses, it has been held to be a waiver of all objections to the replication.^ And so where by mistake the replication was not filed, the court allowed the complainant to reply and introduce proofs on equitable terms.' 1 Story, Eq. PI., sec. 878, note 3. 2 Brooks V. Mead, Walk. Ch. (Mich.) 389. 8 Hard wick v. Bassett, 25 Mich. 149. CHAPTER X. AMENDMENTS, SUPPLEMENTAL PLEADINGS, AND REVIVOR. § 243. Allowed in certain cases. L Amendments. 244. Amendments allowed to both parties. 24.5. Mispleading in matter of form. 246. Amendments rest largely in the discretion of the court. 247. When the pleadings are veri- fied. 248. As to matters occurring after liling the original bill. 249. When application should be made to amend. 250. When amendments of the bill will be allowed. 251. When amendments of the an- swer will be allowed. 252. Same — At the hearing. 253. Same — After the hearing. 254. Amendments allowed by ap- pellate courts. 255. How amendments made. 256. The effect of amendment, 257. Amendments making a new and different case not al- lowed. 258. Same — Limitations to amend the answer. 259. Amendment of the answer at the hearing. IL Supplemental Pleadings. 260. The office and nature of. 261. Must obtain leave of court to file. 262. Granting leave to file supple- mental pleadings. 263. Some limitations. 264 Parties to supplemental bill. 3 265. Substance and frame of the supplemental bill. 266. Pi-oceedings upon filing sup- plemental bill. 267. Defenses to the supplemental bill ai-e the usual defenses in equity. 268. An original bill in the nature of a supplemental bill. 269. A supplemental answer. 270. Leave of court must be ob- tained. III. Bills op Revivor. 271. The nature of the bill of re- vivor. 272. The interest necessary to sup- port the bill. 273. Parties to the bill of revivor. 274. Same subject — Parties de- fendant. 275. Original bill in the nature of a bill of revivor. 276. When the defendants can sus- tain a bill of revivor. 277. The form of the bill of revivor. 278. Distinction between the bill of revivor and a bill in the nature of a bill of revivor. 279. The form of the bill in the nature of a bill of revivor. 280. Bills of revivor and supple- ment. Defenses. 281. Defenses to the several bills of revivor: By plea. By answer. Replication. Tlie hearing. 324 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§§ 2i3-45. § 243. Allowed in certain cases. — The office of pleadings is to apprise the court and the opposite party of the case claimed and the relief sought, or the defense relied upon by the party filing them. How fully this must be done and how particularly the facts must be alleged has already been dis- cussed. As we shall see, the evidence adduced at the hearing and the decree of the court is more or less limited by the case alleged in the pleadings, but an equitable determination of a cause could not in justice be allowed to fail because of omis- sions in setting out the entire case in the pleadings in strict compliance with rules that obtain in equity pleading; so amendments or supplemental pleadings, and revivor of causes in certain proper cases, will be allowed. I. Amendments. § 244. Amendments allowed to both parties. — The privi- lege to amend is not confined to either the party plaintifl: or defendant, but it has been said that amendments are allowed, to the defendant with much more caution than to the plaint- iff.' The reason for any distinction, however, is hardly ap- parent, except it may be that the plaintiff, having set forth his case, all the facts are fully and particularly suggested and brought to the mind of the defendant, and there should not be so much occasion for mistakes or omissions in setting up the defense to the bill filed. If there is, however, a distinction existing, it is hardly perceptible in real practice, for it may be said to be a general rule that, for good cause shown and for the furtherance of justice, amendments to the pleadings of either party will be allowed. § 245. Mispleading in matter of form. — Usually misplead- ing in mere matters of form will not be allowed to prejudice any party, and if they are insisted upon the court will allow the pleading to be amended, or will wholly ignore them at the hearing where the party has failed to take advantage of them at an earlier stage of the pleadings by way of a demurrer or an exception, as the case may be. Substance and substantial facts brought in at the hearing will govern, and, if necessary 1 Story, Eq. PL, sec. 894; Freeman v. Michigan State Bank, Harr. Ch. (Mich.) 311. § 2-i5.j AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 325 to do equity in the cause, tiie court will allow an amendment even at the hearing, — indeed, will order it on his own mo- tion. In Huffman v. Hummer'^ it was said : " In mere matters of form, clerical mistakes, or verbal inaccuracies, great indulgence is shown in allowing amendements even in sworn answers. But applications to amend in material facts, or to change essentially the grounds taken in the original answer, are granted with great caution, and only where it is manifest that the purposes of substantial justice require it." And where it appeared that all the necessary parties were not before the court, it was held that the court might arrest the cause at any time and order the bill to be amended, and within the discre- tion of the court the costs might be awarded.^ The courts generally concur in the opinion "that the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice." The courts will always keep in mind that it is a court of equitj'' and will seek to do equity, not regardless of the forms of pleading, but, dis- regarding technical rules and precedents, will amend the plead- ings to conform to the case which actually exists and appears by the evidence. The court will proceed, however, with care and caution, always requiring that the case be an equitable one and that enough appears to show that the amendment would be just, and will see to it that no injustice is done to the opposite party. And w^here there has been great delay in moving for the amendment, or when the amendment would change the case made by the original bill and to which the opposite party has directed his proof, the court will generally refuse to amend, but will permit a decree to be entered dismissing the bill with- out prejudice, or, in the discretion of the court, will grant an amendment upon payment of the costs.' 1 17 N. J. Eq. 263, 371. however, in which this will be done 2 Cabeen v. Gordon, 1 Hill, Eq. (S. are confined to those where it ap- O.) 51. pears, from the case made by the 3 Hardin v. Boyd, 113 U. S. 756, 761; bill, that the plaintiff is entitled to Lyon V. Talmadge, IJohns. Ch. (N. Y.) relief, although different from that 1 84, 188; Richmond v. Irons, 121 U. S. sought by the specific prayer; where 27,47; Allls V. Withlacooohee Lum- the object of the proposed nmend- ber Co., 44 U. S. C. C. A. 673. 1 Danl. ment is to make a new case, it will Ch. PI. & Pr. 384: "The instances, not be permitted." 326 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 246. § 246. Amendments rest largely in the discretion of the court. — It would be impossible to lay down any fixed or defi- nite rule governing amendments; their allowance must of necessity rest in the discretion of the court, depending upon the special circumstances of the case in which the application is made. The courts, however, will exercise great latitude in allowing amendments so as to develop the real issues in the cause, and permit the merits of the controversy to be passed upon.' As was said in Church v. Holcomb^ "the rules for amendment are exceedingly liberal when justice will thereby be done and wrong prevented. A necessary party is often permitted to be added at the hearing; and even on appeal the case may be remanded for the purpose. A bill for specific performance is sometimes permitted to be converted into a bill to rescind when it is manifest from the evidence that such should have been the relief prayed for. In Sanborn v. Sanborn^ leave to change a bill for specific performance into a bill for relief on the ground of fraud seems to have been denied only because jurisdiction in cases of fraud had been conferred on the court since suit was brought. Also in Drew v. Beard,^ an amendment to bring new transactions into an accounting in a partnership case was allowed at the hearing. In Gregg v. Brower^ it was said that " whilst it is generally conceded that amendments with reference to the furtherance of justice are allowed with great liberality until the proofs are closed, and where the bill is not upon oath, yet greater caution is exercised in regard to amendments of a bill sworn to. . . . Where the object of the amendment is to let in a new fact there is greater reluctance on the part of the court to allow 'Field V. Middlesex Banking Co., < 107 Mass. 64; Darlington's Appeal, 77 Miss. 180, 26 So. 365; Allis v. With- 86 Pa. St.. 512. In the Tremolo Pat- lacooohee Lumber Co., 44 U. S. C. C. ent, 33 Wall. (U. S.) 518, an amend- A. 673. ment was allowed after the decree 245 Mich. 29, 39; Lewis v. Darling, which changed the character of the 1 6 How. (U. S.) 1 ; Palmer v. Rich, 12 bill from one relying upon a patent Mich. 414; Pavrill v. McKinley, 9 to one based upon a reissue, it being Grat. (Va.) 1; Hewett v. Adams, 50 manifest that the merits had been Me. 271; Whelan v. Sullivan, 102 fully gone into. Mass. 204. s 67 111. 525, 527. 57 Gray (Mass.), 143. § 246.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 327 the amendment when it depends upon parol proof than when it depends on written instruments omitted by accident or mistake; and if the fact was known to the complainant at the time of filing his bill, such an amendment will not be allowed unless some excuse is given for the omission;' nor when the matter with reasonable diligence might have been inserted in the original bill." ^ Where an amendment was allowed after a cause had been heard, it was claimed that the power of allowing amendments ceased, or if it existed at all it did not go so far as to author- ize the plaintifif to change the framework of his bill and make an entirely new case, although upon the same subject-matter, as was claimed to have been done in that instance under leave to amend. The appellate court in its opinion said: "This doctrine would deny to a court of equity the power to grant amendments after the cause was heard and before decree was passed, no matter how manifest it was that the purposes of substantial justice required it, and would, if sanctioned, fre- quently embarrass the court in its efforts to adjust the proper mode and measure of relief. To accomplish the object for which a court of equity was created, it has the power to adapt its proceedings to the exigency of each particular case, but this power would very often be ineffectual for the purpose, unless it also possessed the additional power, after a cause was heard and a case for relief made out, but not the case disclosed by the bill, to allow an alteration of the pleadings on terms that the party not in fault would have no reasonable ground to object to. That the court has this power and can, upon hearing the cause, if unable to do complete justice by reason of defect- ive pleadings, permit amendments, both of bills and answers, is sustained by the authorities." ' iWhitmarsh v. Campbell, 2 Paige character and extent of the injury (N, Y.), 67. under the circumstances of the case 2 North American Coal Co. v. Dyett, were properly allowed even upon the 3 Edw. Ch. (N. Y.) 115; McMann v. hearing. "The complainants found Westcott, 47 Mich. 177. much diflSculty in getting at the 3 Neale v. Neales, 9 Wall. (U. S.) 1, actual facts until the testimony was 8. In Morrison v. Mayer, 63 Mich, taken and concluded, notwithstand- 238, 249, it was held that the amend- ing they were within the knowledge ments made to the complainant's of the defendants. In such a case bill to allow relief according to the the discretion of the circuit judge 328 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 247. § 24:7. When the pleadings are verified. — "When the appli- cation is to amend a pleading that has been verified the court vs^ill exercise greater caution in allowing the amendment. And if the facts proposed by the amendment are not consistent with the allegations in the original bill, as a general rule it will not be allowed, unless it can be shown clearly to the sat- isfaction of the court that the facts as alleged in the original were the result of mistake or surprise, or unless the facts pro- posed by the amendment are in addition to the facts alleged in the original bill and consistent therewith; such amendment should be made by filing an amended bill. The vice-chancellor, in Verjplanch v. Insurcmce Oo.^ said: "Another and more important reason for holding a strict hand over the privilege of amending sworn pleadings is to check all temptation to falsehood or perjury, by not permitting a party who has once made his allegations or statements under oath to come in at any time and expunge the same or substi- tute other and different matter. If, indeed, it clearly appears there has been a mistake arising from inadvertency or acci- dent, and that the statement is not what the party thought it was or intended it should be at the time of swearing to the will be tolerated to any extent by De Laey v. Hurst, 83 Ga. 233. 9 S. E. way of allowing amendments in any 1052; Wise v. Twiss, 54 111. 301; Bel- respect necessary to secure the ends linger v. Lehman, 103 Ala. 385, 15 So. of justice and the equitable rights of 600; Home Ins. Co. v. Nobles, 63 Fed. the parties. No technical rules of 641. either pleadings or practice will be 1 1 Edw. Ch. (N. Y.) 46, 53. In applied by this court, when the case Swift v. Eckford, 6 Paige, 23, it was is fully before us, the effect of which held that a bill cannot be amended would be to defeat the rights of by striking out, where it had been parties." Byers v. Coal Co., 106 sworn to, except under very special Mass. 131; Vermont, etc. Co. v. Bank, circumstances which must be shown 44 Vt. 489; Jameson v. Deshields, 3 to the court. And in Rogers v. De- Grat. (Va.) 4; Holland v. Trotter, 33 Forest, 3 Edw. Ch. (N. Y.) 171, it was Grat. 136; Belton v. Apperson, 26 held that the matter proposed as an Grat. (Va.) 207; Yates v. Law, 86 Va. amendment in a petition for leave to 117, 9 S. E. 508; Orton v. Knab, 3 amend a sworn bill should be an- Wis. 509; Hunt v. Wickliffe, 27 U. S. nexed to the petition and sworn to in (3 Pet.) 301; Wynne v. Alford, 29 Ga, addition to the usual jurat on the 694. In MoDougald v. Williford, 14 petition. In Ogden v. Moore, 95 Mich. Ga. 665, it was held that a bill might 390, it was held that facts inconsist- be amended for the correction of ent or repugnant to the allegations mistakes, the suppression of impol- of the original bill cannot be intro- itic admissions and other purposes, duced by amendment. § 24S.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 329 pleading, the court will permit him to amend upon discovery of the error. But, even in such cases, the court will not suf- fer the amendment to be made by striking out any part of the pleading. It can only be done by introducing an additional or supplemental statement explaining and correcting the for- mer erroneous one." But where an answer had been found to be insufficient on exceptions thereto, it was held that a verified bill might be amended by adding material allegations of fact that had come to the knowledge of the complainant subsequent to the draw- ing of the bill if such amendments were not to be used to sus- tain an injunction which had already been issued.' But an injunction bill which has been sworn to cannot be amended by striking out material and substantive matter, statements, allegations or charges. It may be amended by iuserting addi- tional facts in relation to the same subject-matter alleged in the bill, or which existed before the filing of the bill, by leave of the court, or by additional or explanatory statements, and it is said that this rule applies as well to all sworn bills as to injunction bills. The reason for this is apparent: it is pre- sumed that the injunction was issued because of the sworn al- legations of fact in the bill, and upon these facts the writrests.^ § 218. As to matters occurring after filing the original bill. — As a general rule it may be said that matters which have occurred since the filing of the original bill cannot be introduced by way of amendment if the defendant has answered the bill. This, as we shall see, can only be taken advantage of by filing a supplemental bill, but before the bill has been answered the complainant may amend by alleging the new matter; for until the defendant has filed his answer such amendments would be no inconvenience to him.' And then, too, the complainant 1 Reawick v. Wilson, 6 Johns. Ch. that before any court of equity- Si. should allow such amended an- 2 Walker v. Walker, 3 Ga. (3 Kelly), swers it should be perfectly satisfied 302; Marble v. Bon hotel, 35 III 240; that the reasons assigned for the ap- Carey V. Smith, 11 Ga. 539. plication are cogent and satisfactory; 3 Story, Eq. PL, sec. 884 In Hoff- that the mistakes to be corrected, or man v. Hummer, 17 N. J. Eq. 263, the facts to be added, are made 271, the court say: "In Smith v. highly probable, if not certain; that Babcock, 3 Sumn. (U. S.) 583, Mr. they are material to the merits of Justice Story said: 'It seems to me the case in controversy; that the 330 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 249. having the case entirely under his own control may add to it any new matter he may desire, for the case made by the amended bill is the case the defendant would be called upon to answer. § 249. When application should be made to amend. — The application to amend should be made before the case is at issue, especially if it is by the defendant to amend his answer. The cause is said to be at issue when the replication is filed. The replication contests the answer, and after the answer is con- tested no new position should be taken. ^ It is the duty of 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 an- swer was put in and sworn to.' And this language is quoted with appro- bation by the chancellor in 1 Stockt. 451. Does the defendant bring his application within the operation of the rule as thus stated ? It is clear that the mistake in the case now under consideration has not been as- certained, and that no new fact has come to the knowledge of the de- fendant, since the answer was sworn to. Every fact now within the knowledge of the defendant was known to him at the time of putting in the answer, and it would tend to the encouragement of gross negligence to permit a defendant to remould an answer to the truth of which he had sworn, with a full knowledge of all the facts. Bannon V. Comegys' Adm'r et al., 69 Md. 411; Nichols V. Rogers, 139 Mass. 146. In Hammond v. Place, Harr. Ch. (Mich.) 438, the court say: "It is a well settled rule also that facts which have transpired since the commencement of the suit cannot be set forth by way of amendment to the original bill. If the complain- ants wish to take advantage of any such facts they must do it by a sup- plemental bill. An amended bill re- lates back to the time when the original bill was filed, and it is con- sidered but one bill and cannot be separated." 1 Story, Eq. PL, sec. 886, etc. Judge Story, in his work on Equity Pleading, at section 889, says: "The original rule, as to the time of allow- ing amendments, was probably bor- rowed from the civil law, according to which the plaintiff, by the leave of the court, might add any new po- sitions to the libel before the repli- cation was filed; for the replication was the contestation of the answer. And after the answer was contested, there could be no new positions; but the parties went immediately to the proofs." United States Equity Rule 28: "The plaintiff shall be at liberty, as a matter of course, and without pay- ment 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 af- terwards, such as filling blanks, cor- recting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in mat- ters of form. But if he amend in a material point (as he may do of course) after a copy has been so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay. § 249.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 331 party to move promptly when aware of the necessity of mak- ing the application. Laches on the part of either party is looked upon with disfavor by courts of equity and may be sufficient, 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 de- fendant, a copy shall be furnished to each defendant affected thereby.'' United States Equity Rule 39: " After an answer, or plea, or demur- rer 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 cr without payment of costs, as the court or a judge thereof may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable dili- gence 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." United States Equity Rule 30: "If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replica- tion, shall not file his amendments or amended bill, as the case may re- quire, in the clerk's office on or be- fore tlie next succeeding rule-day, he shall be considered to have aban- doned the same, and the cause shall proceed as if no application for any amendment had been made.'' As to amendment of answer — (United States Equity Rule 60): " After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be 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 defenses, or qualif3'ing or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause, after due notice to the adverse party, sup- ported, if required, by alBdavit; and in every case where leave is sO' granted, the court or the judge grantmg the same may, in iiis dis- cretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." Where a cause had been pending for several years and was finally brought to hearing which lasted for several days, and oral arguments were made and written briefs after- wards submitted, a decision arrived at and a draft of a proposed decree submit! ed, the defendants made an application to amend their answer by withdrawing repeated admis- sions as to citizenship as alleged by the complainants, and sought to sub- stitute averments showing that they were citizens of a different state. 332 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 249. if it is gross and without excuse, to overcome the leniency of the court in granting amendments.' The theory of granting amendments is that the original pleading contains all of the material facts necessary to be stated that existed at the time the pleading was drafted and filed ; that new matter, that is, facts happening after the plead- ing was filed, must be introduced by supplemental pleading, for they cannot be considered as facts bearing upon the case at the time the pleading was drawn. And where facts within the complainant's knowledge before the filing of the bill were made the basis of a supplemental bill, it was held that the bill would be demurrable so far as based upon such facts; that such facts being within the complainant's knowledge at the time of filing the original bill should be introduced by application to amend the bill.'^ So where a bill to foreclose a mortgage securing bonds equitably owned by the complainant is without equity for the reason that it does not aver that at the time of filing the bill the mortgage was due, and in fact it was not due, it was held which if allowed would defeat the jurisdiction of the court, it appear- ing that the defendants were con- versant with such facts from the beginning, and it further appear- ing doubtful whether complainant would be able, because of lapse of time, to bring a new suit in a state court, it was held that the court in the exercise of its discretion would not permit defendants to amend their answer as proposed. Gubbins V. Laughtenschlager, 75 Fed. 615. 1 Where an application to file an amended answer and cross-bill is made long after the cause is at issue on the original pleadings, and but a few days prior to the time the evi- dence in the case is to be closed, the granting of the application was held to be within the court's discretion, who would consider the probability of the defendant being able to sup- port his new averments after a care- ful examination of the legal suffi- ciency of the facts averred and con- sidering the evidence already taken before granting such an application. Ritchie v. McMullen, 25 C. C. A. 50, 79 Fed. 522. But in Johnston v. Grosvenor,,105 Tenn. 353, 370, where more than four years had elapsed after the filing of the original bill and the answer thereto, an amend- ment was allowed and held by the supreme court not to be such an abuse of discretion as to demand re- versal. Where it appeared on motion to amend by adding new parties defendant after the replication and the production of evidence that the plaintiff had been in position to make the amendment at an earlier stage, the application for amend- ment was denied. Clifford v. Cole- man, 13 Blatchf. (U. S.) 210; Ingra- ham V. Bunnell, 5 Meto. (Mass.) 118; Marr v. Wilson, 70 Tenn. 229 (2 B. J. Lea, 299). 2 Commercial Assur. Co. v. New Jersey Rubber Co., 61 N. J. Eq. 446, 49 Atl. 155. § 250.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 333 that the defect could not be cured by an amendment averring facts of a supplemental nature which did not exist when the bill was filed.^ In Martin v. Atkinson^ the court held that amendments to sworn answers should be granted with great caution; that they might be allowed in cases of mistake, fraud, surprise, or the discovery of new matter, but that there is no general rule governing their allowance; that the application is always ad- dressed to the sound discr-etion of the court, each case depend- ing upon its own merits. In Dearth v. National Banh^ it was held that an amenxl- ment to a sworn answer would not be allowed if it stated in- correctly facts admitted to be true. If the party be an infant, however, courts will especially care for their interests, and will not only allow amendments in furtherance of their rights, but will even at the hearing of the proof protect them under the pleadings filed, or, if necessary, amend the pleading on their own motion.* § 250. When amendments of the bill will be allowed. — As to facts existing at the time the original bill was drawn and filed, amendments of the pleadings in an equity case will be allowed at any time before the issue is made up — after the cause is at issue at the hearing, and even after the hearing if the ends of justice demand it; the granting of the application always resting in the sound discretion of the court. More leniency is said to be extended in granting amendments of the bill of complaint than any other pleadings, and yet it seems, after consulting the adjudicated cases, that amendments to the bill rests in the urgent demands of justice in the particular case, which is really the same ground upon which amendments 1 Sheerer v. Agee, 113 Ala. 383, 31 example, to correct a verbal or cler- So. 81 ; Seattle, etc. Ry. Co. v. Union ical mistake, or to amend or supply Trust Co., 34 C. C. A, (U. S.) 513, 79 a formal defect; but if further Fed. 179. amendments are desired, a supple- 2 5 Ga. 390. mental answer must be filed, which 3 100 Mass. 540. In Burgin v. Gib- would be permitted after replication ersoD, 33 N. J. Eq. 403, it was held and even after complainant has that an amendment would not be commenced to take evidence. Huff- permitted to an answer after it had man v. Hummer, 17 N. J. Eq. 369. been sworn to and filed in the cause * Story, Eq. PI., sec. 893. except for formal mistakes. As for 334 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 250. to other pleadings are allowed. "We have already considered amendments prior to the joining of issue, but the courts go very much farther than this and permit the bill to be amended upon the hearing, or even after a decree has been granted. In Ogden v. Thornton ' it was held that the bill of complaint might be amended at the hearing; the court holding that it was not driven, by any inflexible rule of practice or stern def- erence to a mere formality, to the hard duty of thrusting the complainant from its presence, remediless and mulcted in costs, being fully persuaded that complainant had, upon the undis- puted facts, a case founded in the highest equity, and which it is the peculiar duty of a court of conscience to recognize and redress. " Such a result would prostrate justice to preserve a mere matter of technical form. If possible, the court must not allow justice to be defeated and wrong to triumph, by a mere mistake or unskilfulness in pleading. A court of equity must always aim to act upon broad principles of justice, disentangled as much as possible from little technicalities. . . . The power of the court to order an amendment, even on final hear- ing, is unquestionable, but it is a power never exercised, except when the ends of justice render it absolutely necessary, and its exercise will not substantially impair or abridge the right of defense. . . . Even appellate tribunals will reverse an order or decree and send a cause back to the court having original jurisdiction, in order that an amendment may be made, so that the real merits of the controversy may be settled. Where, upon final hearing, the court has the whole case before it, but is embarrassed by defects in the pleadings, it may per- mit both the bill and answer to be amended." The court will, however, at all times in the granting of amendments be governed by equity and good conscience toward the defendant as well as the plaintiff, and will not allow amendments that will in any way abridge the right of defense, or occasion such surprise to the adverse party as to imperil or affect bis case. In Moshier v. Knox College^ the court say: "The reason of 130 N. J. Eq. 569, 572; Armstrong at the hearing. Munch v. Shabel, 37 V. Ross, 5 C. E. Green (N. J. Eq.), 109. Mich. 166; Morrison v. Mayer, 68 Amendments to meet matter set up Mich. 238. in the answer held to be proper even '^ 32 111. 155, 164; Russell v. Martin § 250.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 335 therule that material amendments should not be made on the hearing of a cause is that they may surprise the adverse party." But further held that, where no new matter was in- troduced by the araendm'ent, the defendant could not be said to be surprised, and where the character of the controversy is not changed the amendment will be allowed. In Gordon v. Reynolds ' it was held that it was not error, but a practice highly commendable and absolutely necessary in a great many cases to a proper administration of justice, to allow amendments at the hearing; that " it is not material when such amendments are made, except as to the terms the court, in its discretion, might see proper to impose as a condition to per- mitting the amendment. Usually these amendments are made after the evidence is all in and the variance is brought out in the course of the argument, and it sometimes occurs that several amendments of this nature and for this purpose are made at different times during the final argument of the case. These amendments are purely discretionary, and ordinarily, in the absence of evidence showing an abuse of a reasonable dis- cretion, are not subject to review." And if necessary to secure the ends of justice and the equitable rights of the parties, the court will allow the prayer of the bill to be amended at the hearing if it is discovered that the prayer is not consistent with the determination the court arrives at upon hearing the proofs.^ It is a general rule, concurred in without dissent, that the bill of complaint may be amended at the hearing so as to con- form with the proofs, if it appears from the evidence that the complainant is entitled to relief, the court keeping in view, however, the equitable rights of the defendant. For while the court has the undoubted power to order an amendment etux., 3 Scam. (111)492; Hewitt v. v. Marshall, 1 J. J. Marsh. (Ky.) 64; Dement, 57 111. 500; Morrison v. Lewis v. Darling, 16 How. (U. S.) 1. Mayer, 63 Mich. 338, 29 N. W. 698; 1114 111. 118. Folkerts v. Power, 42 Mich. 283; -^ Morrison v. Mayer, 63 Mich. 238. O'Brien v. Heeney, 3 Edw. Ch. (N. Y.) In Graffam v. Burgess, 117 U. S. 180, 343. It has been said that amend, it was held that a bill in equity ments to add proper parties are might be amended after the hear- never too late while the court has ing of the proofs so as to put in issue control over the case. Parberry v. matters in dispute and in proof that Gorara, 3 Bibb (Ky.), 107; Hoofman were not sufficiently alleged in the 336 AMENDMENTS, SCPPLEMENTAL PLEADINGS, ETC. [§ 251. upon final hearing, it will never be exercised where it would prejudice or abridge the rights of the parties, or where the ends of justice do not render it necessary, or where the case is not of such character that commends it to the favorable considera- tion of the court, or where the proofs fail to convince the court that complainant is entitled to relief.' § 251. When amendments of the answer will be allowed. If the application for amendment of the answer is to correct some mere matter of form, or slight mistakes, as in dates or verbal inaccuracies, the courts are very indulgent in the mat- ter of allowing amendments;^ or where it clearly appears that the amendment sought for is material to the defense and necessary to enable the defendant to bring the merits of his defense before the court, leave will be granted to amend if the amendment is not inconsistent with or contradictory to the allegations of the answer;' and where it appeared that there was an omission arising from the oversight of the solicitor who drafted the answer, which was not discovered until the cause was ready for hearing, it was held that the court would grant original bill. Hardin v. Boyd, 113 U. S. 756. 1 Midmer v, Midmer's Ex'r, 26 N. J. Eq. 399; Winston v. Mitchell, 93 Ala. 554, 9 So. 551. In Connalley v. Peck, 3 Cal. 75, it was held that an amend- ment should be allowed where in a bill in equity the proofs do not sus- tain the allegations of the bill but the evidence conclusively shows the party entitled to relief. Tryon v. Sutton, 13 Cal. 490; Hagar v. Whit- more, 82 Me. 248; Bernard v. Top- litz, 160 Mass. 162; Church v. Hol- comb, 45 Mich. 29; Goodenow v. Curtis, 18 Mich. 398; Hoyt v. Smith, 27 Conn. 468; Camp v. Waring, 35 Conn. 520; Neale v. Neales, 9 Wall. (U. S.) 1; Chicago, etc. Ry. Co. v. Bank, 134 U. S. 276; Mix v. People, 116 111. 265, 4 N. E. 783; Cooper v. Gum, 152 111. 471, 39 N. E. 267; Bel- lows v. Stone, 14 N. H. 175; Clark v. First Cong. Church Soc, 46 N. H. 272; Church, etc. v. Hatch, 48 N. H. 393; American Bible Soc. v. Price, 115 111. 623; Harrigan v. Bacon, 57 Vt. 644; Norton v. Parsons, 67 Vt. 526, 33 Atl. 481; Lamb v. Laughlin, 35 W. Va. 300; Winslow v. Crowell, 33 Wis. 639, 663; Doonan v. Glynn, 36 W. Va. 235; School District v. Macloon, 4 Wis. 79; Hitchcock v. Merrick, 15 Wis. 533. In Van Riper v. Claxton, 9 N. J. Eq. 303, it was held where the case was before the court upon de- fendant's proof, that it would be too technical to turn the complainant out of court; that the court would, in certain cases, allow a bill to be so amended as to correspond with the proofs taken. Howell v. Sebring, 14 N. J. Eq. 84; Cox v. Westcoat, 39 N. J. Eq. 551. 2 Smith v. Babcock, 3 Sumn. (U. S. C. C.) 583. 'Burgin v. Giberson, 23 N. J. Eq. 403; McMichael v. Brennan, 31 N. J. Eq. 496; Tillinghast v. Champlin, 4 R. L 128. § 252.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 337 leave to amend the answer witTaout postponing the hearing to await a formal motion, unless it would occasion surprise on the part of the complainant;' but amendments to sworn an- swers are granted with greater caution and are more difficult to obtain ; but when the amendment is sought to correct a mis- take, or in case of fraud or surprise, the court, exercising a sound discretion, will generally grant the amendment, each case de- pending upon its own merits. Amendments, however, to the an- swer as well as to the bill must be applied for without delay, exercising reasonable diligence in presenting the application to the court. And where the petition to amend an answer, so as to set up a defense well known at the time the answer was filed, was made after the cause had gone to final decree, and the decree had been affirmed by the appellate court, the application was denied.'^ But where it appeared that the plaintiff's situation had not changed for the worse because of defendant's delay, a motion to amend the answer was permit- ted on payment of costs.'' § 252. Same subject — At the hearing. — The answer may be amended at the hearing where equity and good conscience demand it, and courts will grant the same indulgence as to amendments to the answer as in applications to amend the bill. In Tracetoell v. Boggs,* where the defendant had filed his answer in the cause and the plaintiff had replied to it and had had ample time to prepare his defense, but at the last moment came into court and asked to be permitted to substi- tute another answer because one material matter of defense which he desired to make to complainant's bill was forgotten by him and did not occur to his memory until a short time before, the court said: "If the new matter of defense had truly been material, he should have been permitted to have filed an amended answer setting up such new matter, but in 1 Arnaud v. Grigg, 39 N. J. Eq. 1 ; v. Shew, 1 Pin. (Wis.) 438, 43 Am. Ritchie v. MoMullen, 35 C. C. A. 50, 79 Dec. 579. Fed. 533; Graves v. Niles, Harr. Oh. SArnoldv. Chesebrough,33Fed. 571. (Mich.) 332; Grim v. Wheeler, 3 * 14 W. Va. 254, 261; Wyatt v. Edw. Ch. (N. Y.) 448. Thompson, 10 W. Va. 645; Matthews 2 United Ey. Co. v. Long DocIj Co., v. Dunbar, 3 W. Va. 138; Connecti- 41 N. J. Eq. 407; India Rubber Co. v. cut Ins. Co. v. Smith, 117 Mo. 261; Phelps, 8 Blatchf. (U. S.) 85; Stout Rogers v. Rogers, 15 B. Monroe (Ky.), 364. 23 338 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 253. nowise to delay the hearing of the cause. But before a ^court of equity should allow an amended answer to be filed it should be satisfied that the reasons assigned for it are cogent and sat- isfactory ; that the mistakes to be corrected, or 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 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 filed." Where a motion to amend an answer, which was put in without oath, was made after a large amount of testimony had been taken and the proofs closed and more than a year had elapsed after the opinion of the court had been filed settling the rights of the parties, and upon the day that the complain- ant asked for a decree of reference in accordance with the opinion of the court, and it was claimed by the defendant that his answer contained a plain mistake of facts which he had never discovered until a short time before, alleging that he had never before read the answer nor did he know its con- tents except so far as he had furnished facts to his solicitor, who prepared and filed it and supported these statements by affidavits, the court say : " The defendant knows by the bill what he is called upon to answer, and he must answer, not only fully but truthfully and conscientiously, and that, too, whether under oath or not. Every consideration of private interest and public welfare requires this. But with this precaution governino', not only in matters of mere form have corrections been al- lowed, but in other particulars." After citing and quoting from numerous authorities the court further say: "It seems to be my plain duty to allow the amendment asked for."' § 253. Same subject — After the hearing. — For the same reasons that incline the courts to the allowing of amendments at the hearing, but with very much more caution and delib- eration, amendments are allowed even after the cause is sub- mitted and after a decree has been rendered, but in such a case the reasons must be very urgent and clearly set forth and proven; indeed, the courts are loath to establish aijy rule or precedent of this kind, and generally will refuse to permit the 1 Welsh V. Arnett, 46 N. J. Eq. 548, 17 Atl. 389. § 254.J AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 339 amendment when it involves the taking of further proof and the trial of the cause upon a different theory, and always where there have been intervening rights, as of hona fide pur- chasers, or rights obtained without notice based wholly or par- tially upon the decree that has been rendered m the cause." And here, too, the rule exists that the party moving for the amendment must not be guilty of laches; this is a general rule in all equity proceedings. In Trader v. Jarms''- the court say: " A court of equity, which is never active in relief against stale demands, will al- ways refuse relief where the party has slept upon his right and acquiesced for a great length of time. Nothing can call into activity this court but conscience, good faith and reasonable diligence. Where these are wanting the court is passive and does nothing." But where the knowledge of the facts upon which the amendment is based were especially within the knowledge of the opposite party, and the circumstances were such that he ought to have voluntarily disclosed them, and it appeared that the plaintiff had attempted in vain to get a full disclosure from the respondent, the amendment, though a rea- sonable time had elapsed after the decree was rendered, was allowed.^ If the amendment sought is a technical error it will be allowed even after final decree. In Rhea v. Puryear^ an amendment of a bill for specific performance to correct the description of land was allowed after the cause had been submitted for final hearing. § 254. Amendments allowed by appellate courts. — For the reasons already mentioned the appellate courts will often grant the privilege of amending the pleadings and remand the case to the lower court with instructions that such amend- 1 Munter v, Linn, 61 Ala. 492; Terry 2 33 w. Va, 100, 108; Bill v. Schil- V. McClure, 103 U. S. 442. And where ling. 39 W. Va. 108. an amendment was sought to meet 3 Hoyt v. Smith, 27 Conn. 468; Don- objections raised at the hearing two nelly v. Bwart, 3 Rich. Eq. (S. C.) 18; months before the decision was ren- Pierce v. Kneeland, 16 Wis. 673; dered, and especially where the Mason v. Blair, 33 III. 194. amendment would not affect the ^36 Ark. 344; King v. King, 45 Ga. grounds on which the decision was 195; Ingraham v. Bunnell, 5 Mete. based, the amendment was refused. (Mass.) 118; Peck v. Mellams, 10 N. Y. Blair v. Harrison, 6 C. C. A. 826, 57 (6 Seld.) 509. Fed. 257. 3i0 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 255. ments be made. As, for example, if a demurrer to the bill is sustained, the complainant, if justice and equity demand it, would be permitted to amend his bill even in the appellate court. In Riddle V. Whitehill^ the decree of the lower court sus- taining a demurrer and dismissing the bill was reversed by the appellate court and remanded with directions to allow the complainant to amend, an application having been made for leave to amend before appeal was taken. So where upon the hearing in the appellate court it appears that the complainant is entitled to relief, but in order to ob- tain it it is necessary that the pleadings be amended so as to admit additional proof; or where it appears that there is a want of pi'oper parties, which, if supplied, a decree could be sustained, in such cases, where, in accordance with equity and good conscience, a decree ought to be granted, the appellate court will not dismiss the cause, but will remand it to the lower court with the privilege of amending the pleadings in the particulars necessary. In Palmer v. Rich ^ the bill made out the case on all points, but there was want of necessary parties; the court below granted the complainant a decree as prayed. The supreme court on appeal reversed the decree for want of parties, but granted leave to amend, and allowed an injunction, which had been decreed, to stand until the further order of the court below. § 255. How amendments made. — The amendment of the pleading when allowed should be stated with care and pre- cision in the order permitting it, and should also determine how it shall be made. In amending pleadings in unimportant formal matters, as the correction of a clerical error, the strik- ing out or inserting a name or altering a date by way of cor- recting a mistake which is apparent upon the face of the pleadings, the correction may be made by interlineations or inserting the amendment in the margin, but should be so done that it will clearly appear what the amendment is. But as to matters of substance this course should not be pursued. The party making the amendment should draft an entirely new 1 135 U. S. 631, 637. 2 13 Mich. 414; Squire v. Hewlett, 141 Mass. 597. § 356.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 341 pleading, leaving the original on file unaltered; for besides the importance of having it clearly appear in what the amend- ment consisted, it is very important to know what the allega- tion of the original pleading was, and especially if the plead- ing is verified. So important is this consideration in case of amendments of answers that courts will generally insist that the original shall remain intact, for sworn admissions or state- ments of fact in such an answer may be very important at the hearing of the cause; the practice, however, in this respect is largely governed by the rules of practice in the several chan- cery courts. The amended pleading should show that it is an amended pleading, and if the original pleading is sworn to the amended pleading should be verified to the same extent, and signed by counsel, filed in the cause, and served the same as the original pleading.' If the amendmerrt, however, is to the prayer of the bill, by adding a new and proper party complainant, or if it be an immaterial matter which would not change in any par- ticular the substance of any allegation in the bill, it need not be verified. § 256. The effect of ameiidinent. — When a pleading is amended it stands as a new pleading and relates back to the time the original was filed ;^ the original and amended pleading being regarded as one. And so if the complainant amends his bill, the defendant, although he may have an- swered the original bill and is not required to answer the amended bill, may, if he elects to do so, put in a new answer making an entirely new defense, even to the extent of contra- dicting his former answer.' The complainant on filing the amended bill may waive a further answer, and the defendant may avail himself of the 1 Rodgers v. Eodgers, 1 Paige Ch. takes effect as of the time of filing 434; Verplank v. Mercantile Ins. Co., the original bill. Carey v. Hillhouse, 1 Edw. Cb. (N. Y.) 46; Livingston v. 5 Ga. 351; Norris v. He, 153 111. 190, Marshall, 83 Ga. 381. 38 N. E. 763, 43 Am. St. Rep. 333; 2 In Lipscomb v. McClellan, 73 Ala. Hurd v. Everett, 1 Paige, 134; Adams 151, it was held that where the v. Phillips, 75 Ga. 461. amendment to a bill introduced no 3 1 Danl. Ch. PI. & Pr. 409; Burney new subject, but simply made more v. Ball, 34 Ga. 505; Bo wen v. Idley, 6 specific the charges contained in the Paige (N. Y.), 46; Trust & Fire Ins. original bill, such an amended bill Co. v. Jenkins, 8 Paige, 589. 342 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 256. waiver; and if he does "not answer, his former answer may be taken as an answer to the amended bill; but if the complainant does not waive further answer and the amend- ments require one, in such case the complainant would be en- titled to it and defendant must answer.' When the complain- ant " waives the necessity of a further answer, if the defendant deems it essential to his defense to answer the amendments, he has the right to do so. And unless the defendant elects to abide by his former answer within that time, the complainant must wait until the expiration of the time allowed to the de- fendant to answer before he is at liberty to file a replication."^ When the amendment consists of immaterial or mere formal matters not in any way changing the substance of the bill, it would appear that an answer would not be required ; ^ but as a general rule, if the amendments consist of matters of substance, the defendant may either plead, answer or demur as though it were an original bill, regardless of the state of the pleadings prior to the amendments.* In the United States court this is regulated bj'- rule,'^ which provides that, " in every case where an amendment shall be made after answer filed, the defendant shall put in a new or supplemental answer on or before the next succeeding rule-day iTedderv. stiles, 16 Ga. 1; Trust App. 389. Where a bill was amended & Fire Ins. Co. v. Jenkins, 8 Paige, on application to the court it was 589, 593. held that the defendant should be 2 Richardson v. Richardson, 5 compelled to answer the amended Paige, 58, 59; Davis v. Davis, 63 Miss. bill. West v. Hall, 3 Har. & J. (Md.) 818; Hutchinson v. Reed, 1 HofE. Ch. 281. And in Hagthrop v. Hooks, 1 (N. Y.) 316. Gill & J. (Md.) 370, it was held that 3 Chicago, etc. Ry. Co. v. Bank, 134 when the plaintiff amends his bill he U. S. 276, 289; Salisbury v. Miller, 14 is entitled to a new answer to the Mich. 160. new matter. But where one of * Am. Bible Soo. v. Hague, 10 Paige, several defendants had answered the 549; Angel V. Railway Co., 37 N.J. Eq. original bill and fully responded to 93; Trust & Fire Ins. Co. v. Jenkins, all matters which were in the 8 Paige, 589. And where a proposed amended bill by which his interest amendment to the bill charged fraud, could be affected, it was held that the original bill having charged mis- no answer to the amended bill from take, it was held to be reversible such defendant was necessary. Fitz- error to proceed to hearing, the de- hugh v. McPherson, 9 Gill & J. (Md.) fendants objecting without an order 51; Tompkins v. Hollister, 60 Mich, requiring defendant to answer the 470. bill. Adams v. Gill, 158 111. 190, 41 » U. S. Eq. Rule 46. N. E. 738; Lindsey v. Lindsey, 40 III. § 256.] AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. 343 after that on which the amendments or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer." Where a pro confesso order has been taken to the original bill, the filing of an amended or supplemental bill vacates it, and the defendant will be admitted to answer.^ The amend- ment of the bill does not necessarily put two bills into the case, nor is it a substitute for or abandonment of the original bill so as to preclude the complainant from proving allegations in it, but the two bills are said to constitute one record.'^ And so the statute of limitations has been held to be no defense to an amended bill unless it might have been interposed as to the original bill.' And where an amended bill is sufficient to sustain an injunction which has been granted upon the original bill, the injunction will be sustained regardless of the insuffi- ciency of the original bill. In Barber v. Reynolds * the court say : " The original motion to dissolve the injunction was afterwards heard and denied, and, subsequentlj', a motion to vacate the order granting leave to file an amended complaint without prejudice to the injunc- tion was also denied, and from these orders, refusing to dis- solve the injunction and to vacate said order granting leave, the appeal is taken. If the amended complaint is sufficient to sustain the injunction, the motion to dissolve was properly de- nied, unless the amendment of the complaint propria vigore worked a dissolution, or entitled defendants to a dissolution. The amended complaint supersedes the original, but there is no dismissal of the action. It simply takes the place of the other. No new or different action is commenced, and no new cause of action is introduced. There is no change in the iden- tity of the cause of action. That is the same as before, and 1 Gibson v. Rees, 50 III 383; Bank 4Sandf. (N. Y.)573; Furniss v. Brown, of Utica V. Finch, 1 Barb. CIi, 75. 8 How. (N. Y.) 59. In Lyster v. Stick- 2 Lewis V. Lamphere, 79 111. 187; ney, 13 Fed. 609, held, where the Bradlsh v. Grant, 119 111. 606, 9 N. E. amended bill upon its face is suflfi- 333, 11 N. E. 258; Munch v. Shabel, cient to sustain the injunction and 37 Mich. 166. there is no showing outside the bill 3 Allen V. Woodson, 50 Ga. 53; why it should be dissolved, a motion Wilhelm's Appeal, 79 Pa. St. 130. to dissolve must be overruled. < 33 Cal. 497, 501 ; Seldon v. Vermilya, 344 AMENDMENTS, SUPPLEMENTAL PLEADINGS, ETC. [§ 256. the commencement of the action dates from the filing of the original complaint and issuing of summons thereon. The change consists merely in more fully setting forth the cause of action defectively alleged in the original complaint. It is the former complaint amended. The old complaint, in the form first filed, ceases to be the complaint in the case, or to perform any further function as a pleading, but the amended complaint falls into its place, and performs the same and not different functions. The identity of the action is in no respect affected. This was so held in the very case cited by appellants. The plaintiffs, after demurrer, and before thg trial of the issue of law thereon, were entitled to amend as of course. We know of no good reason upon principle why an amendment may not, by leave of the court or judge, be made without prejudice to a preliminary injunction already granted. The injunction rests upon the same cause of action after amendment as before, and it is in the same suit; and it is settled by the authorities that an amendment may be made on leave without prejudice to the injunction previously granted." The fiction, however, that the amended bill relates back to the original bill and becomes merged in it, the two making up one record, cannot be carried, to an extent that will prejudice accruing or intervening rights, or unsettled vested rights. In Jones v. McPhillips ^ the court say : " The rule that an amendment to a bill, if properly allowed, takes effect as of the filing of the original bill, is not true under all circumstances and to all intents. . . . We cannot presume facts were averred to exist at a time when they had no existence in fact. But the presumption is a mere legal fiction, and fictions cannot be so stretched as to presume the existence of the impossible. They cannot be indulged to the prejudice of accruing, inter- vening titles, and cannot retroact so as to unsettle vested rights, innocently acquired. They are indulged in furtherance of justice, but not allowed to work an injustice." The bill being amended and a new bill filed, no new process is necessary except to bring in persons who are made new par- ties to the suit by the amended bill. The parties in the suit 183 Ala. 103; Goodman v. Winter, 64 Ala. 410, 437; Chapman v. Fields, 70 Ala. 403. § 257.] AMEXMLEN'TS, SUPPLEMENTAL PLEADINGS, ETC. 345 commenced by the original bill are presumed to have notice of the amended bill and no further process is necessary.' § 257. Amendments making a new and diiferent case not allowed. — When the proposed amended bill would make a new and different case, it is held to be contrary to the mean- ing and tenor of amendments, and would not be permitted. And so where a bill in aid of ejectment proceedings was filed, an application for an amendment made at the hearing to con- vert it into a foreclosure bill by substituting the ordinary prayer for foreclosure of the mortgage in the place of the prayer contained in the original bill was not allowed. The court said: "The question of allowing the bill to be amended at the final hearing of the cause on the pleadings and evidence is one subject very much to the discretion of the court; and where the amendment sought would transfer the cause to a different head of equity, and the court refuses permission and dismisses the bill, as in this instance, without prejudice, an ap- pellate court will decline to disturb the result, unless, in view of all the circumstances, the impropriety of the refusal is con- spicuous. And in case the change so moved for contemplates the introduction or substitution of a new controversy in prin- ciple, it is the general rule to disallow it. But short of this there is great liberality, and in some very peculiar cases the court will deem it just and politic to deviate from the general rule, and will allow the complainant, on fair and equitable terms, to revise his bill and give it a new bearing. But no authority has been found for permitting him, at this stage of the case, to convert a bill filed and resisted as one merely auxiliary to a case at law into a suit for full and independent relief under another head of equity."^ In Belton v. Apperson^ the court say: "The rule in equity in regard to amendments is that they may be made when the 'Lawrence v, Bolton, 3 Paige 2 Livingston v. Hayes, 43 Mioh. 129, .] ixteelocutoey applications and proceedings. 395 fendant, if he desires to contest the plaintiff's right to execu- tion, to file his answer setting oul the grounds of his objection. These grounds must not be inconsistent with the decree. The validity of the decree or its justice cannot be attacked or in- quired into. The answer should contain grounds which usu- ally operate in its discharge, and, like the petition, should be on oath. The complainant can take issue upon such an an- swer, and, if necessary, have a reference to take proofs. The decree and report of deficiency make out a prima facie case for the writ. Xo replication to the answer, however, is nec- essary, unless proper matter is set up in the answer in discharge of the deficiency or some part thereof. The proceedings after decree, in making the sale, having been duly confirmed, can no more be attacked in this proceeding, unless void, than the de- cree itself." § 292. The proofs upon which the petition is to be heard and the hearing. — If the petition is based upon affidavits to be presented to the court at the hearing, together with the rec- ords and files in the cause pending in the same court, the orig- inal affidavits duly entitled in the court and cause and prop- erly sworn to should be attached to the original petition. Copies of these affidavits should be attached to a copy of the petition and served upon the adverse party or his solicitor, and in the notice of hearing it should be stated that the petition is based upon the affidavits so attached, with copies of which the said party is served, and upon the records and files in the cause. The hearing of the petition proceeds in a similar manner to that which prevails upon the hearing of motions. The mov- ing party is entitled to the opening and closing in the produc- tion of his proof and upon the argument. The proof generally consists of affidavits produced by the parties at the hearing, but only affidavits, copies of which have been served upon the adverse party, can be presented and read by the moving party ; affidavits in answer thereto may be presented by the adverse party and read without serving copies upon the petitioner, but, as in a hearing upon a motion, the court may require further proof and may direct that the parties or other witnesses mak- ing the affidavits be brought into court for oral examination. The course or procedure upon the hearing, however, is gener- ally regulated by the rules and practice of the court. 396 INTEELOCUTOET APPLICATIONS AND PE0CEEDING8. [§ 292. In the case of Ransom v. Sutherland'^ the solicitor for the complainant served a notice 6n the '•olicitor, who represented the defendant in the foreclosui'e suit, that on a certain day he would move the court for an execution for the deficiency re- ported upon the mortgage sale and that the motion would be based on " the files, decree, report of sale and subsequent pro- ceedings had in the cause." At the hearing defendant's solic- itor objected that no notice of the motion had been served and moved to dismiss the application, which was denied. The complainant produced the decree, report of sale and de- ficiency and an execution was issued ; from this defendant ap- pealed. The supreme court say: " The whole proceeding was informal; and while it might have been sustained had no ob- jection been made at the time, the irregularities are such as the defendant had a right to take advantage of. The applica- tion should have been made on sworn petition, reciting briefly the facts giving the right to an execution, and praying the court to direct its issue. It is not absolutely essential that the application take the form of a petition; but it should be in writing and under oath, and it should be served on the party against whom execution is sought, with notice of the time when it will be presented. The service should be on the de- fendant in person wherever that is practicable; for presump- tivel}' the retainer of a solicitor in a cause does not extend to proceedings taken subsequent to the decree for its enforcement. If personal service on the defendant is impracticable, the court, on a showing of the facts, may direct a substituted service. When the defendant is brought in on petition and notice, if he contests the right to an execution, he should file his answer setting out the grounds of his objection. It is hardly neces- sary to say that these must be grounds not inconsistent with the decree and usually such as operate in its discharge;- the validity or justice of the decree cannot be inquired into on such an application. The answer, like the application, should be on oath, and if it present matter of discharge, the complain- ant may take issue upon it, and the court in proper cases may order a reference to take proofs. But in such a case the bur- den of proof to show discharge must be on the defendant, for 146 Mich. 489; Wallace v. Field, 56 Mich. 3. §§293-94.] INTEELOCUTOEY APPLICATIONS AND PEOOEEDINGS. 397 the decree adjudging the defendant personally liable, and the report of the deficiency, make out a prima facie case against him." § 293. The use of petitions.— Petitions that are filed by persons who are not parties to a pending suit for the obtaining of some benefit of proceedings in the cause, or for the obtain- ing of an order in some matter which is not the subject of liti- gation, have been distinguished from those petitions which are made in a pending cause; the latter being termed "cause peti- tions," the former not cause petitions. Among some examples that might be given of petitions that are not cause petitions are those filed for the appointment of a guardian of an infant, or for the appointment or removal of a trustee. Petitions filed in pending causes are very numerous, and it would not be practicable or wise to undertake to enumerate them. Among some of the more important petitions, however, may be mentioned petitions for leave to file a bill of review or a supplemental bill; for the appointment of a receiver; for the issuing of an execution upon deficiency after foreclosure sale; for an order allowing a party to intervene in a pending chan- cery cause, and in such like cases where it is necessary for the petitioner to fully set forth facts and circumstances entitling him to the relief prayed. In these and many other cases it is necessary that the party proceed by a petition in writing rather than by motion. To such petitions the adverse party may file an answer traversing the facts alleged in the petition, which issue, if the petitioner replies to the answer, may necessitate a hearing and determination by the court involving the hearing of proofs adduced by the several parties. The right of parties to intervene in a pending equity cause has already been briefly alluded to.' § 294. Intervention — Who may intervene. — Intervention is that act or proceeding by which one on his own motion be- comes a party to the suit pending between others.^ The right to intervene is sought and obtained by a petition filed in the cause, the petitioner praying permission to intervene and be- come a party either complainant or defendant. One asking permission to intervene must have some interest or right which "^Ante, § 63, * Anderson's Law Dictionary. 4^98 TNTEELOCUTOEY APPLICATIONS AND PEOOKEDINGS. [§ 294. Avill be affected by the decree in the pending suit. So it has been held that persons who belong to a class represented in the pending suit may intervene as mortgage creditors repre- sented by the trustee of the mortgage; claimants go the title of the property held by a receiver;' a judgment creditor who has levied upon his debtor's property after it has come into the hands of a receiver in a foreclosure case, the creditor claiming collusion for the purpose of defeating his recovery,^ the peti- tioner disclaiming that the levy was made for the purpose of getting possession of the property under his levy, and that his intention was merely to get a foothold on which to make an application for intervention, but without intention to disturb the receiver or dispute the authority of the court.' Stockholders of a corporation may intervene where fraud has been perpetrated by the stockholders of the company which affects the interests of the stockholders. In Williams v. Morgan * a bondholder secured by a mortgage under foreclosure was held to have such an interest in the amount of the trustee's compensation as to entitle him to inter- vene and contest it, and to appeal from an adverse decision. It has been held that bondholders will be allowed to inter- vene where the trustee representing them under different mort- gages, with conflicting interests, is unable, on account of such conflicting interests, to exercise unbiased judgment.'* But when in a foreclosure suit against a railroad corporation which controlled and operated a system composed of several roads, it appeared that a receiver had been appointed- for the property, that a trust company was trustee under twelve different mort- gages or trust instruments executed by several of the corpora- tions comprising a system of the defendant company; but it did not appear that there were such conflicting interests as would render it improper for the trustee to act, it not being alleged or shown that he was unfaithful to the trust confided or had failed to represent the several interests of the com- panies, it was held the bondholders would not be permitted to ' Pelhatn v. Newcastle, 3 Swanst. 3 Bayliss v. Lafayette, etc. Ry. Co., 390. 8 Biss. (U. S.) 193. 2Farraers', etc. Co. v. Railway Co., ^ 111 U. S. 684. 43 Fed. 323. s Richards v. Chesapeake, etc. Ry. Co., 1 Hughes (U. S.), 38, 86. § 295.] INTEKLOOaXOEY APPLICATIONS AND PEOOEEDINGS. 399 become parties in their individual capacities or by committee, the court saj'ing: "It will not be presumed that the trustee Avill be unfaithful to the trusts confided to it, and it will be time enough to consider the question of making the bondhold- ers or their committees parties for their own protection when the trustee fails to promptly and faithfully discharge its duties. It will not do to permit bondholders in such proceedings as this to become parties in their individual capacity or by com- mittees, without showing why their interests will not be prop- erly guarded by the trustee selected when the trust was ex- ecuted, and then fully authorized to represent them." ' And generally it may be said that the stockholders of corporations will always be allowed to intervene if there is danger that their interests will suffer by reason of fraud, neglect or collu- sion on the part of the directors or officers of the company; and the courts have gone so far in some cases as to allow stockholders to file an answer and defend in the suit in the name of the corporation; but ordinarily, in the absence of fraud, neglect or collusion, stockholders will not be allowed to intervene. ^ § 295. The petition for intervention. — The petition should show briefly and concisely the nature of the original suit,^ and should contain averments setting forth the rights of the peti- tioner involved in the cause, the nature of those rights and how they will be affected by a decree in the pending suit. It has been said: "That while a petition of intervention need ,not be as formal as a bill of complaint, and should perhaps be iClyde V. Railway Co., 55 Fed. 445, fected, the stockholders can come in 448. as parties and ask that their prop- 2 In Bayliss v. Railway Co., 8 Biss. erty shall be relieved from the effect (U. S.) 193, 196, it was held that of such fraud; but in all cases which stockholders have the right to inter- have been decided in the supreme vene as parties to a suit against the court, and, I think, by other courts company where any fraud has been upon this subject, it is assumed that perpetrated by the directors by the stockliolders will have an inter- which the property interest of the est or property remaining after it is stockholders is affected. The court, relieved from the effect of the fraud in its opinion, say: "I think the au- of the directors or the officers of the thorities are very clear that where company." any fraud has been perpetrated by ^Ex parte Jordon, 94 U. S. 248; the directors, by which the property Ransome v. Winn, 18 How. (U. S.) ■or interest of the stockholders is af- 295. 400 INTEELOCDTOEY APPLICATIONS AND PEOCEEDINGS. [§ 296. distinguished for brevity, it yet should exhibit all the mate- rial facts which are relied upon for the specific relief invoked, embodying, either by recital or by reference, so much of the record in the original suit in which the petition is filed as is essential to show a right to the particular relief demanded by the petition." ^ The petition must present a case of substantial equity.^ It must contain a prayer asking that the party be allowed to in- tervene in the cause, and should be signed by the petitioner and verified by affidavit. Such petition for intervention may be filed at any time during the pendency of the original cause. It should be served, with notice of hearing, upon the opposite party in the usual manner of serving petitions, and be filed in the cause. § 296. Defenses to petitions for intervention. — Petitions for intervention may be met and defended by demurrer, plea or answer. If the petition does not set out facts which will warrant the court in making the order allowing the peti- tioner to intervene, it is demurrable.' If some particular facts exist not shown upon the face of the petition which would completely answer and defeat it, it may be interposed by a plea. If the opposite party desires to defend the petition upon its merits, denying the allegations therein which he claims to be untrue, the defense should be by answer.* The usual and ordinary rules of pleading governing defenses apply to petitions of this kind. 1 Empire Distilling Co. v. M'Nulta, 3 Shepard v. Murray Co., 33 Minn. 77 Fed. 703; Clyde v. Railway Co., 519. 55 Fed. 445. ^Dalhoff v. Coffman, 37 Iowa, 283; ^ Guest V. Hewitt, 27 N. J. Eq. Woodward v. Jackson, 85 Iowa, 432. 479 ; Davis v. Sullivan, 33 N. J. Eq. 569. CHAPTER Xll. EVIDENCE. § 397. Taking proofs forthe hearing. 398. Practice in United States court. 299. Depositions of witnesses be- yond the jurisdiction of the court. 300. Admission of evidence. 301. Pleadings as evidence. 302. The burden of proof. 303. Proof confined to issue made by pleading. 304. Effect of variance. §297. Taking proofs for the hearing.— When the repli- cation is served and filed, the cause is at issue and ready for taking proofs for the hearing. Many changes in the practice governing the taking of proofs have been made since the rules that obtained in the early English chancery court. Formerly, witnesses who were within the jurisdiction of the court were examined privately by an examiner or commissioner appointed by the court, upon written interrogatories and cross-inter- rogatories prepared by the solicitors of the parties or by the court. These interrogatories were not served upon the op- posite solicitor, and the cross-interrogatories were prepared without having the benefit of the interrogatories in chief; therefore, the cross-examination was of little, if any, value. The testimony was taken by the officer and kept secret until all the testimony for both parties in the cause was taken, when by an order of the court a time was set for the publication of the testimony, — that is, for opening the same and submitting it to the inspection of the parties or their solicitors in the cause. This manner of taking proofs, however, gave way to that other method which long continued, and in some jurisdictions is still in vogue, which allowed the solicitor or counsel for the respective parties to be present at the taking of the proofs and to propound questions to the witnesses by way of direct or examination in chief and cross-examination. Bj' this later practice, within a certain time fixed by rule, either party may serve notice upon the opposite party of the taking of the testimony of certain witnesses named in the no- 20 402 EVIDENCE. [§ 297. tice before a commissioner, examiner or master, as the case may be, and at a certain time and place. At the time and place noticed, tlie witnesses are brought in by subpoena and examined orally by the solicitor or counsel of the parties to the cause, the testimony of the witnesses being taken in writ- ing and when completed signed by them in the presence of the commissioner before whom it is taken, after it is read over to them, when it will be certified by the commissioner. The proofs so taken are filed with the register of the court where the cause is pending, to be used upon the hearing. This man- ner of procuring proofs continues until the time for taking proofs is closed by an order entered of course by one of the parties ; the practice and the time for closing the proofs being fixed by the rules of the court. Objections to testimony may be made by either party to the examiner, but he cannot rule upon the objections; his duty being to note the objections in writing and take the answers under the objection of the witness, all of which must be re- ported in the deposition to the court.' 1 Adams' Eq. (6th Am. ed.) 716. The author gives the rule of prac- tice for the taking of testimony in law oases and undertakes to show the necessity of taking the proofs orally and in open court in such cases, and follows with the rule for the taking of proofs in chancery cases, giving reasons why the testi- mony should not be taken in open court and why the examination should be in private. He says: "In a court of law, therefore, a viva voce examination in public is the regular mode of proof. In equity, the object of the evidence is differ- ent, and so also is the mode of tak- ing it. " The trial and determination of disputed issues are' not the principal objects of evidence in equity; for the nature of the questions there litigated does not generally give rise to such issues; and those which do occur, if they present any serious difficulty of trial, are generally re- ferred to the verdict of a jury. The power, therefore, of sifting and com- paring testimony, which is the prim- ary requisite at law, becomes com- paratively unimportant in equity; and tlie principal objects there con- templated are, first, to elicit a sworn detail of facts, on which the court may adjudge the equities; and sec- ondly, to preserve it in an accurate record, for the use, if needed, of the appellate court. " For this reason, it is required in equity that all witnesses shall be examined before the hearing, and their answers taken down in writ- ing, so that, when the cause comes on for decision, the judge may not be distracted by the trial of separate issues on evidence then brought for- ward for the first time, but may give his undivided attention to the deci'ee, which the facts admitted or proved will warrant; and that, if his decree be appealed from, the court of appeal may have, in an authorized § 207.] EVIDENCE. 40c The tendenc}'^ of modern practice in the equity court is to pro- duce the proofs at the hearing the same as in a trial of a suit at law by bringing the witnesses into open court and examining them before the court which is to hear and determine the cause; record, all the materials on which it is founded. " The protracted nature of a writ- ten examination necessarily involves the risk that defects of evidence might be discovered in the course of taking it, and false testimony pro- cured to remedy them. In order to avoid this risk, the witnesses are ex- amined privately by an officer of the court; and it is an imperative rule that until the examination has been completed and the entire deposi- tions given out, which is technically termed passing publication, neither party shall be made acquainted with his adversary's interrogatories, nor with any part of the answers on either side; and that after publica- tion, no further witnesses can be ex- amined without special leave. "The secrecy thus observed must to some extent involve the possibil- ity, not only of false evidence being given but of true evidence being given in an imperfect form, where a party, in the absence of his opponent, so frames his interrogatories as to elicit testimony respecting part only of a transaction. This is an evil which cannot altogether be avoided; • but it is in a great degree remedied by the rule that, in order to give weight to evidence, the facts which it is intended to support must have been previously detailed in the plead- ings. Should this security prove in- sufficient, so that a doubt exists at the hearing whether all material facts are before the court, further inquiries may be directed, and the decision in the meantime delayed. "The mode of examination is by written interrogatories, which, in the cases of witnesses resident within twenty miles of London, are admin- istered by an officer called the exam- iner; or if they are resident beyond that distance, and the parties are unwilling to incur the expense of bringing them to town, by commis- sioners specially appointed for the purpose. " The interrogatories, as well as the bill and answer, must be signed by counsel, as a security to the court that no irrelevant or improper mat- ter is inserted. "They are framed as a series of questions, directed successively to the several facts in issue, and num- bered 'first interrogatory,' 'second interrogatory,' and so forth; and a marginal note is usually affixed to each, pointing out the witness for whom it is intended. " In framing interrogatories the same rule must be observed as in putting questions to a witness at law, viz: they must not be leading or suggestive on material points; and they must not be so framed as to embody material facts admitting of an answer by a simple negative or affirmative, and thus presenting to the court the evidence, not as it would be stated by the witness him- self, but with the coloring prompted by professional skill and a previous knowledge of the case to be proved. In guarding against the latter of these objections a risk is necessarily incurred of framing the question in so general a form that a witness may unawares, or through misappre- hension, omit an important fact; and if such omission should occur, the framer of the interrogatories has not, like an examining counsel at nisiprius, the opportunity of add- 404 EVIDENCE. r§ 297. the testimony of each witness being taken down by the court stenographer, or by the court. Generally, where this practice prevails, the court does not rule upon objections to testimony, but the objections are entered by the stenographer and the answers taken. This is done for the reason that upon appeal to party will have been already elicited by the special interrogatories; so that any evidence elicited by the general one is likely to benefit his adversary rather than himself. "Before the witnesses are exam- ined, the examining officer is gen- erally instructed as to the interroga- tories applying to each witness. During the actual examination, the examining officer and the witness are tlie only persons present, all third persons being strictly excluded. The witness is then examined on each interrogatory in order, his answers being taken down on paper, and is not permitted to read, or hear read, any other interrogatory, until that in hand be fully answered. "Whenallthe interrogatories have been gone through, the deposition is read over to the witness, who, after correcting any error or omission, signs it. The affixing of his signa- ture completes his examination, and he cannot be again examined on be- half of the same party. "If any of the interrogatories are such as the witness is not bound to answer, e. g., if they intend to ex- pose him. to a penalty or forfeiture, or involve a breach of professional confidence, he may decline to an- swer them, stating at the same time on oath his reasons for so doing; a proceeding which is somewhat in- accurately called a 'demurrer to in- terrogatories.' The examiner or com- missioner takes down the statement in writing, and the objection is heard and decided by the court. If the witness himself does not object to the question, and its impropriety depends on general grounds, and not on such as are personal to himself. ing to and varying his question, so as to suit the apprehension of the witness. Great care is therefore requisite in so framing the interrog- atories that the witness's mind may be led into the right channel of thought; and the difficulty of effect- ing this is materially diminished if, before the interrogatories are set- tled, an accurate statement is pre- pared of each witness's evidence, in the same manner as at nisi prius. Beyond these general principles it is impossible to lay down any uniform system for interrogatories, which must necessarily vary in every in- stance, according to the circum- stances of the individual case. " At the conclusion of each inter- rogatory the following words, de- noted in the draft by the words 'de- clare,' etc., are inserted in the engrossment: 'Declare the truth of the several matters in this inter- rogatory inquired after, according to the best of your knowledge, re- membrance and belief, with your reasons fully and at large;' and at the end of the set the draftsman may, if he please, add what is called the general ' concluding interroga- tory,' ' Do you know or can you set forth any other matter or thing which may be of benefit or advan- tage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or to the matters in question in this cause ? If yea, set forth the same,' etc. The ad- dition, however, is not compul.sory; and it is generally more prudent to omit it; for, if due care has been taken in preparing the evidence, all matters beneficial to the examining § 298.] EVIDENCE. 405 the appellate court all of the testimony is certified to that court that it may have the whole record. And so it has been fre- quently ruled that the court cannot excuse a witness from tes- tifying upon an objection to his testimony on the ground that it is immaterial or irrelevant, or for any other cause deprive- the party of the testimony offered.' The court will admit the proof subject to the objections. An examination of the stat- utes, codes and rules of practice in the several states will be necessary in order to determine the practice as to the manner of taking the proofs in equity causes. § 298. Practice in the United States court.— The practice in taking proofs in equity cases in the United States court is fixed by statute and rules of court. At an early day it was provided by statute that the mode of taking proofs in cases in equity should be according to rules then or thereafter pre- scribed by the supreme court and the statutes of the United States.- In pursuance of that statute the supreme court of the United States have from time to time made rules of practice as to the manner of taking the testimony of witnesses in equity cases to be used in the several United States courts, generally providing that the proof shall be taken before a master in chancery and reported to the court to be read at the hearing of as where it involves a breach of pro- certain and often dangerous; and it fessional confidence, or where the cannot be applied, as at nisi prius, interrogatories are leading, or the to the proof of an independent case, depositions scandalous, or where any If the evidence of the witness is re- serious irregularity has occurred in quired for that purpose he may be taking them, the court, on motion examined on original interroga- withiu a reasonable time, will sup- tories; but his cross-examination press the depositions. must be confined to those points on "The witnesses examined in chief which he has been already examined by either party may be cross-exam- in chief. The time for publishing ined by his opponent; and the inter- the depositions is fixed by the gen- rogatories filed for this purpose, eral orders of the court. Ingle v. whioli are termed 'cross-interroga- Jones, 9 Wall. (U. S.) 486; Langdell's tories,' are in all respects similar to Eq. PL, sees. 56, 58; Wood v. Mann, the interrogatories in chief, except 3 Sumn. (U. S.) 316; Kansas, etc. Co. that they are not subject to objec- v. Electric, etc. Co. (U. S. C. C), 108 tions on the ground of leading the Fed. 703. witness. It is, however, very seldom i Parisian Comb Co. v. Eschwege, that any good result is effected by a 98 B'ed. 721 ; Fayerweather v. Ritch, cross-examination in equity; for it is 89 Fed. 539; Brown v. Worster, 113 conducted in ignorance of the ques- Fed. 30. tions in chief, and therefore, as ap- ^ jjgv. Stats. U. S., see. 863. plied to the adversary's case, is un- 406 EVIDENCE. [§ 298. the cause, the practice being similar to that described in a pre- ceding section.! Three months' time by rule is allowed to take the testimony after the cause is at issue, unless the time is en- larged by the court on special motion, and no testimony taken after that time can be read to t'.ie court on the hearing. As soon as the testimony is reported and filed in the clerk's oiBce publication thereof may be ordered.^ On May 15, 1893, the rule governing the taking of testimony was amended by the supreme court as follows: "Upon due notice given as prescribed by previous order, the court may, at its discretion, permit the whole, or any specific part, of the evidence to be adduced orally in open court, on final hearing."' This amendment has not been generally adopted and in some jurisdictions has been unfavorablj'^ commented upon for the rea- son that it was thought that by it no way was provided for ex- hibiting the proofs taken orally in the court below on appeal to an appellate court.* 1 Ante, § 397. ^ U. a Eq. Rule 69. 3 149 U. S. 793. ■* In Southern Bldg. & Loan Ass'n V. Carey. 117 Fed. 325, 334, the court say: "The nearest analogy my read- ina; develops to the condition we have here is that of a case where the testi- mony at the hearing in equity is taken orally in open court, as maybe done if the court permits it. Equity Rule 67, last paragraph. How is that testimony to be taken and transmit- ted to the appellate court ? Strange to say, I do not find that question answered by the oases or the books on practice or the rules, any more than the one we have in hand, and the necessity for a rule governing the practice is apparent. As said by Judge Simonton in Coosavr Min. Co, v. Farmers' Min. Co. (C, C), 67 Fed. 31, 32: "Under the practice in the English chancery, no testimony was ever taken in open court before the chancellor. Witnesses were ex- amined before one of the masters in chancery, and their testimony re- duced to writing and read at the hearing." This is the common method prescribed by our Equity Rule 67, and when the testimony is taken in that manner, or before the examiner, it is easy enough to make a rejected doc- ument or any rejected evidence a part of the record by making it a part of the report of the master or examiner when he sends the testi- mony in for reading at the hearing, and no bill of exceptions can be nec- essarj'. But suppose the testimony is taken under the latest amend- ment to Rule 67 of May 15, 1893 (149 U. S. 793, 18 Sup. Ct., iii; 3 Desty, Fed. Prac. 1785), how is it to be put upon the record for transmission in the transcript to the appellate court? . . . I should say that a court of equity might resort to the same method, or might require an exam- iner to attend and take it down, or one of the masters, or in any con- venient way; but how, then, is this written testimony to be made a part of the record, except by an order di- recting it to be filed as such, and § 299.] EVIDENCE. 407 Chief Justice "Waite, in the opinion of the court in Blease v. Garlington^ took occasion to remark: "We do not say that, even since the Revised Statutes, the circuit courts may not in tlieir discretion, under the operation of the rules, permit the examination of witnesses orally in open court upon the hearing of cases in equity; we do say that now they are not by law re- quired to do so, and that, if such practice is adopted in any case, the testimony presented in that form must be taken down or its substance stated in writing, and made part of the record, or it will be entirely disregarded here on an appeal. So, too, if testimony is objected to and ruled out, it must still be sent here with the record, subject to the objection, or the ruling will not be considered by us." This opinion was rendered prior to the promulgation of the amendment to the rule. It is difficult to fully appreciate the criticisms upon this amendment. It would seem that the prac- tice of taking proof in open court before the judge who is to determine the cause, thus affording him the opportunity of seeing the witnesses and hearing their testimony, is but a needed advancement and improvement upon the old English chancery rules and the rules that obtained in our court prior to this amendment. And in these days of stenographers, who take the proof as it is given by the witnesses, there certainly can be no difficulty in reporting to the appellate court all of the testi- mony, together with the rejected testimony and the rulings of the court upon it. § 299. Depositions of witnesses beyond the jurisdiction. — In the several courts, state and federal, provisions are made by statutes and rules of court for taking the testimony of wit- whicd would be the equivalent in ination is to be made a part of the all respects of a bill of exceptions record, though the case decides that, embodying the testimony, after the unless it is made a part of the record manner of the practice at law? In and sent to the appellate court, no Blease v. Garlington, 93 U. S. 1, 33 notice can be taken of it. SeeLIoydv. L, Ed. 531, Mr. Chief Justice Waite Pennie(D. C.),50Fed. 4, 11, Since that held that, notwithstanding the acts time the specific amendmeat of 1893 of congress and the then existing to Equity Rule 67 has been adopted, equity rules, the court could take as above noted, but neither the rule the testimony in an equity case viva nor the cases direct the method of voce when produced in the open taking down the testimony and court: but there is nothing in the making it part of the record." case to indicate how such an exam- ' 93 U. S. 1, 7, 23 L. Ed. 531. 408 EVIDENCE. [§ 300. nesses, who are beyond the jurisdiction of the court, by deposi- tion. In the several state courts these depositions are generally taken upon an order or commission issuing out of the court, usually obtained upon an order of course, directed to some officer or person, authorizing him to bring the witness before him by ordinary subpoena, if necessary, and take his testimony upon the written interrogatories attached; or he may be au- thorized to take the deposition upon oral examination by the respective solicitors. Depositions are often taken upon the stipulation of the solicitors instead of the commission or order of the court. In the federal courts acts of congress and rules of court regulate the practice.^ § 300. Admission of evidence. — While it is notour province to discuss the rules of evidence in this treatise, we may be per- mitted to observe that the rules of evidence applying to the admission of proofs in actions at law generally prevail in the trial of equity causes. There are, however, some exceptions to this rule which are made necessary because of the object of the equitable proceeding; as, for example, it is a general rule that parol testimony is generally inadmissible, both at law and in equity, to vary a written instrument, or an instrument under seal; but when the equitable powers of the court are in- voked to change or annul such an instrument on the ground that it has been obtained by fraud or mistake, the equity courts will admit parol testimony by way of establishing the fraud or mistake and thus lay the foundation for the equitable relief sought. In an early case in the United States court {Hunt v. Rous- manier'^), the court say: "It is a general rule that an agree- ment in writing or an instrument carrying an agreement into execution shall not be varied by parol testimony, stating con- versations or circumstances anterior to the written instrument. This rule is recognized in courts of equity as well as in courts lit has been held that the signa- less the time is extended by an order ture of a witness to the deposition of the court by stipulation of the when it has been regularly taken be- parties. Brown v. Wooster, 113 Fed. fore a master is material. Wallin v. 30; 1 Foster, Fed. Pr. (3d ed.) 634. Cummings, 187 III. 451, 58 N. E. 1095. 2 8 Wheat. (U. S.) 174, 811; Peterson United States Equity Rule 69, lim- v. Grover, 20 Me. 363; Church v. iting the time in which testimony Pennington, 18 Ohio Ct. Rep. 408, 10 must be takerf, will be enforced un- Ohio C. D. 74. § 301. J EVIDENCE. 409 of law; but courts of equity grant relief ia cases of fraud and mistake which cannot be obtained in courts of law. In such cases, a court of equity may carry the intention of the parties into execution, where the written agreement fails to express that intention." • And it has been held that courts of equity will be much more liberal in allowing parol evidence in such cases. § 301. Pleadings as evidence.— As to how far the pleadings in the cause may be relied upon as evidence at the hearing has already been more or less discussed. The bill of complaint is a deliberate statement of the complainant of the facts upon which he relies for the relief sought; it is therefore considered to be an admission of the complainant and may be read at the hearing by the defendant, especially if the bill is under oath, and unless the facts are denied and the reason of their having been thus stated is accounted for upon the ground of migtake or excusable inadvertence, they will be received as evidence against the complainant. But where allegations were made in a bill of complaint by mistake, and afterwards an amended bill was filed containing a different and, as alleged, a correct statement of the facts, it was held that the allegations of the original bill would not be received against the complainant.^ It is a rule, however, that the plaintiff " cannot read any part of his own bill as evidence in support of his case unless where it is corroborated by the answer.'" And so it may be said that where a document is for greater certainty referred to in a pleading, the pleader thus vouching for its truth, such docu- ment would stand as proven as against the pleader, and the facts that it contains would be evidence against him. And where a bill which has been filed by the plaintiff in another 1 It has been held that courts of tively, are admissions in favor of the equity will be much more liberal in defendant of the facts so alleged, allowing parol evidence to contra- and, therefore, need not be proved diet or control a written instrument by other evidence; for, whether they in order to reach the equities of a are true or not, the plaintiff, by intro- case than courts of law. Stouten- ducing them into his bill, and mak- burgh v. Tompkins, 9 N. J. Eq. 332. ing them part of the record, pre- 2 Wenegar v. Bollenbach, 180 111. eludes himself from afterwards dis- 223, 54 N. E. 193. As to statements puting their truth." 1 Danl. Ch. PI. in the bill when taken as confessed & Pr. (4th ed.) 838. see aiite, § 101. "The facts alleged n Danl. Ch. PI. & Pr. (4th ed.) in a bill, where they are alleged posi- 838. 410 EVIDENCE. [§ 302. suit is shown to have been exhibited and relied upon by the direction or with the privity of the party plaintiff, it may be read in evidence against him.' And where the answer is re- sponsive to the bill and is under oath by reason of a sworn answer being demanded by the bill of complaint, it is conclu- sive against the defendant, unless it is overcome by the testi- mony of witnesses. The extent to which the answer is proof in the case has already been discussed.' The same rule applies to other documents, pleadings, or affidavits of the parties in the cause. Generally it may be said that the party will be held to no admissions that may be shown to have been made by him in any pleading, paper or document, especially if it is not under oath, or has not been relied upon for the purpose of obtaining an interlocutory order or decree.' § 302, The burden of proof. — It may be laid down, as a general rule applicable in equitable actions as well as in actions at law, that the point in issue is to be proven b^' the party who has the affirmative. As was said in Darling v. Hurst* where the bill was filed charging on information and belief that the transaction in question was fraudulent, the answer directly denying it, "it is an elementary principle for which no author- ity need be cited, that he who impugns a transaction as fraud- ulent, which may or may not be so, is not sustained by his own assertion alone in case he is disputed, but has the burden on him to make his allegation good by independent evidence." Where it was sought to divest one of a title to lands resting upon an unrecorded deed, for the reason that by agreement between the parties the deed was subsequently surrendered by the grantee to be canceled, it was held that "to divest such title on the grounds mentioned in the bill, upon parol evidence alone, the preponderance of evidence should be clear, and the evidence should be so convincing as to leave no reasonable 1 1 Danl. Ch. PI. & Pr. (4th ed.) 839. responsive to the allegations of the '^Ante, i;§ 207, 308. bill cannot be taken as evidence in ^Galbraith v. Galbraith, 190 Pa. favor of the defendant. Marraion v. St. 225, 43 Atl. 683; Neldon v. Roof, McClellan, 11 App. D. C. 467; Ware 5oN. J. Eq. 608; Bronson v. Vaughan, v. Salsbury, 80 111. App. 485; Corpo- 44 W. Va. 406; Dexter v. Gordon, 11 ration, etc. v. Elden, 63 N. J. Eq. 542, App. D. C, 60. New and affirmative 50 Atl. 606. matter in an answer which is not * 39 Mich. 765, 767. § 303.] EVIDENCE. 'Ill doubt upon the mind." ' But where there is a presumption of law or fact in favor of a party, he will not be called upon to prove it, and the burden of proof will be upon the opposite party to disprove it, even though in doing so he is called upon to prove a negative. As, for example, one who has not been adjudged to be insane will generally be presumed to be sane. And where the question turns on the legitimacy of a child, if a legal marriage is proved the legitimacy is presumed. Tlie law always presumes good faith in transactions between par- ties, and the burden of proof is upon the party asserting bad faith. The law presumes all men to deal fairly and to be honest, and it has been held that where a transaction is capa- ble of two constructions, one that it is fair and honest and one that it is dishonest, the law will presume the transaction hon- est until the evidence proves the contrary. And so it is pre- sumed that all men know the law, and they are not excused from the violation of it upon the ground of ignorance. And it has been held that the character of an institution of learn- ing " at a particular time may be established by evidence of its character at a prior time not so remote but that it would be reasonable to assume that the prior condition still exists."^ § 303. Proof confined to issue made by pleadings. — The evidence adduced in the cause must relate to the matter al- leged in the pleadings, and if not fairly within tljfi allegations that are well pleaded, it would be impertinent and could not be made the foundation of a decree. The parties are entitled to notice of the proofs to be produced; this notice is given by the pleadings; indeed, it is one of the objects of the pleadings in the cause, xis has been said, the complainant is not re- quired to state all of the facts he relies upon, but the substance of his cause of action must be clearly stated and the evidence offered must clearly relate to the case made by the bill, and if proofs not relevant to the issue made by the pleadings are in- troduced they will not support a decree. The same rule is ap- plicable to the answer, or the facts set up in a plea ; the court 1 Hunter v. Hopkins, 13 Mich. 237, 96 III. App. 639; Hunt v. Graham, 15 239; Miller v. United States, etc. Co., Pa. Super. Ct. 43; Henry v. Buddecke, 61 N. J. Eq. 110, 47 Atl. 509. 81 Mo. App. 360; 1 Danl. Ch. PI. & instate V. Chittenden, 113 Wis. 569, Pr. 851. 88 N. W. 587; Diefenthaler v. Hall, 412 EVIDENCE. [§ 304. will not allow a party to be surprised by the introduction of proofs of which he has no notice in the pleadings. Another rule applicable to chancery trials as well as to law cases is, that the substance of the case made by the pleadings must be proven either by proofs adduced or by the admissions upon the record ; that is to say, sufficient proof must be made of the case alleged to support the decree prayed for. These are general rules; many others might be noticed as applicable to special cases, but these general statements will suffice. It should, however, be borne in mind that courts of equity are not inclined to enforce the rules of evidence with that degree of strictness which is generally adhered to in trials of actions at law; and so where the plaintiff by some inadvertence, or even negligence, has Omitted to prove some particular fact neces- sary to the granting of the relief prayed for, but enough ap- pears to indicate that the plaintiff should have the equitable relief, the court will allow him to supply the defect.' But in Wagar v. Bowley^ where defendant sought to open a cause for further proof, but failed in his petition to point out what the testimony sought to be offered would show, it was held that although it is generally within the discretion of a trial judge to open a cause for further proof at any time be- fore decree, and such discretion will not be reviewed where the power exists except in cases of abuse, it was an excess of power to open the case and the application should be re- fused, that the petition ought not to have been granted, and the granting of it was an abuse of the power of the court. §304. Effect of variance. — It is a general rule that the case must be proved as alleged in the pleadings, and so where the complainant failed to raise the question by proper allega- tions in his bill as to the correctness of a receipt, the court held that the replication simply put in issue the truth of the plea, and that being established, the dismissal of the bill nec- essarily followed; that the claim of a mistake in the receipt was wholly foreign to the issue raised by the pleadings for the determination of the court and could not be allowed.^ But 1 1 Danl. Ch. PI. & Pr. (4th ed.) 857. 2 Mich. 145. In Smith v. Brown, 3 2 104 Mich. 38, 41. Mich, 161, 164, in discussing a de- 3 Horn V. Detroit Dry Dock Co., fense urged by counsel, the court 150 U. S. 610; Van Dyke v. Davis, say: "However good such a defense § 304.J EVIDENCE. iVc where it clearly appears at the hearing that the complainant is entitled to relief, but has stated his case defectively, a court of equity will allow the bill to be corrected so as to admit the proofs adduced and base a decree upon thera. If it would in no way prejudice the substantial rights of the defendant or the opposite party, such an amendment is allowed in the dis- cretion of the court, and for the reason that equity and good conscience demand it. And so in such a case a bill of com- plaint would not be dismissed for the technical reason that there was a variance between it and the proofs adduced, but rather the court would permit the bill to be amended so as to corre- spond with and admit the proofs made.^ But where an amend- ment of the pleadings would require a different character of evidence to support the issue made on account of it from that required by the original pleadings, as where the amendment would convert an action in equity into an action at law, it will not be granted." might have been, bad it been set up in the answer, it is sufficient to say that it is not put in issue by the pleadings. It is a well established and most salutary rule of the court of chancery to found its decrees upon some matter put in issue be- tween the parties by the bill and answer. ... A defendant cannot be allowed thus to depart from the defense set up in his answer, and avail himself of another, however clearly he may be able to establish it. It would operate as a surprise upon the complainant, and he could not be prepared to meet it." Ciootte V. Gagnier, 2 Mich. 381. In Harring- ton V. Brewer, 56 Mich. 301, it was held that where the evidence estab- lishes an entirely different case from that which is set up in the answer, the defense, so far as it depends upon such showing, must fail. War- ner V. Whittaker, 6 Mich. 133; Peck- ham V. Buflfam, 11 Mich. 539; Covel V. Cole, 16 Mich. 333; Bloomer v. Henderson, 8 Mich. 395. iGorham v. Wing, 10 Mich. 486; Church V. Holcomb, 45 Mich. 29; ante, g 346. In Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059, it was held that where no demurrer was inter- posed the court might proceed to consider what equitable relief, if any, the plaintiffs were entitled to, and that if relief was found to be due them the court could grant permission to formulate the claim therefor upon such terms as would fully compensate the respondent for any inconvenience suffered from its omission in the first instance. 2 Burnham & Co. v. Tillery & Co., 85 Mo. App. 453. CHAPTEJa XIII. THE HEARING. 305. Bringingthe cause to hearing. 306. Demurrer. 307. The plea. 308. Hearing on bill and answer. 309. Hearing on bill, answer and replication. 310. Final hearing on pleadings and proofs. 311. Matters disposed of at the final hearing. 3ia. Conflict in state and federal jurisdictions. § 313. Objections to the hearing. 314. A feigned issue. 315. Submission of facts to jury discretionary with court. 316. Efl'ect of the verdict or find- ings of the jury. 317. Instructions to jury, or order as to verdict not subject lor exceptions. 318. The court's determination at the hearing. § 305. Briuging the cause to hearing. — When the cause, in accordance with the rules and practice of the court in which it is pending, is at issue, it is ready for hearing, whether it be upon an issue made by a demurrer to the bill, or a plea, or an answer, or an answer and replication. It is brought on for hearing by being set down to be heard, or by notice, or by reason of its being regularly on the docket of the court from which it will be called in its order, depending, of course, upon the practice adopted and prevailing in the court in which the case is pending. A discussion of the early English practice of bringing causes to hearing would not be profitable here for it has long since been abandoned.' The practice in the courts of the United States can hardly be said to be uniform throughout the sev- eral circuits, — "some circuits following the analogy of the English practice; some regulating the matter by rule, and some adopting by custom a practice very similar to that of the courts of the state where the circuit is held. Calendar practice in the several circuits is usually modeled on the state 1 For a discussion of the early practice in England in briuging causes to hearing, see 2 Danl. Ch. PI. & Pr. (4th ed.) 917. § 306.] THE HEARING. 415 practice in tiiat respect." ^ For an understanding of the prac- tice prevailing in the several circuits, it is necessary to con- sult the rules of practice adopted by them. The practice is not uniform in the state courts. In some of the states where a code of practice has been adopted, the cases are docketed in the clerk's office when the issue is made up by the pleadings, and the case is ready to be heard, and from this docket the causes are called by the judge presiding at the term of court, and counsel are expected to be ready for hearing when the case is reached, or show sufficient cause for continuing the same until the next regular term of the court. In other jurisdictions the cases when they are at issue must be noticed for hearing on the opposite party or his solicitor a certain number of days before the first day of the term as provided by rule, and notice must be given to the clerk or register of the court, with proof of service of notice of hearing upon the opposite party or his solicitor. When this is done, the clerk will put the case upon the court calendar for hearing at the term for which it is no- ticed, and from this calendar the court will call the case when it is reached. In those jurisdictions where causes are brought on by notice of hearing, either party may, when the cause is at issue, notice it for hearing. § 306. Demurrer. — When the defense is by demurrer, the hearing is brought on in the same manner as mentioned in the preceding section, and when the cause is reached it is argued by counsel for the respective parties. As we have already seen, no proofs are taken or submitted upon such a hearing; the case proceeds upon the theory that ever}' well-pleaded al- legation of fact in the bill of complaint is true, but that, admit- ting all these facts to be true, the defendant's contention is that the plaintiff cannot recover. So upon the hearing of a demurrer the court will not take into consideration any facts except those alleged in the bill of complaint, or the pleading to which the demurrer is directed. The order or decree that follows such a hearing has already been discussed.^ The demurrer forms an independent issue, and is in no way 1 1 Foster's Fed. Pr. (3d ed.) 664. or in which the execution of the " By statute, a preference is given in revenue laws of a state is enjoined." all circuits and in the supreme court ''Ante, §§ 129, etc. to actions in which a state is a party 416 THE HBAEING. [§ 307. connected with the hearing of the cause upon the merits or upon the facts, except the facts alleged in the bill. Indeed, it alleges that there are no merits or equities upon which the complainant's bill can rest. A demurrer stands as a barrier to any further proceedings; nothing can be done in the case until it is disposed of. It is generall}' conceded to be a cal- endar cause to be heard when reached, and so should be properly noticed the same as any other case at issue, and called by the court when reached. It is an issue of law, and at the hearing nothing remains to be done except to argue the issue thus made by the pleadings. §307, The plea. — By a plea the defendant may raise an issue of law, or an issue of law and fact, the issue being indi- cated and understood by the nature and substance of the plead- ing. The questions of fact, as we have seen, are raised by the replication of the plaintiff to the plea. If the issue is raised by a replication, the truth or falsity of the facts alleged by the plea are involved, and upon this issue proofs must be taken. In those jurisdictions where proofs may be taken in open court upon the hearing, the issue raised by a plea and replication upon proper notice may be heard on proofs taken in open court as in a trial at law, and this perhaps is the practice in the greater number of jurisdictions; but in some courts the earlier practice of referring all matters involving the taking of proofs to a commissioner or master still prevails, and in those courts the case is referred to a master or commissioner with directions to take the proofs and report to the court, and until the proofs are so taken the case is not ready for hearing, but when the proofs are taken and reported the case may be noticed and heard upon the proofs so reported. The order of reference is generally an order of course. If no replication is filed to the plea, then, as we have seen, the facts alleged in the plea are admitted to be true and the case may be noticed for hearing and be heard upon the facts so alleged.' ' Ante, §§ 179, etc. Where after a and bring the case on for final hear- p!ea has been filed to the bill and set ing, the decree will not be reversed down for argument the parties fail unless there is error on the merits, to bring it on for hearing, but take Stackpole v. Hancock, 40 Fla. 362, 24 testimony as to the merits of the plea So. 914. §§ 308, 309.] THE HEAEING. 417 § 308. Healing on bill and answer. — The hearing on bill and answer has already been somewhat discussed.^ Whenever the plaintiff desires to admit the facts that are alleged and well pleaded in the answer, and insist that upon these facts the plaintiff is entitled to the relief prayed for in the bill, or to some part of it which satisfies his object in filing the bill, ho may omit the filing of a replication and at once notice the cause for hearing on bill and answer. Or, if the plaintiff omits within the time allowed hun to file a replication, the defendant may notice the case for hearing on bill and answer. And where, after a replication had been filed, and more than ninety days had elapsed after the filing of the replication without taking any testimony, and the plaintiff did not move to extend the time for the taking of testimony, and thereafter gave notice of motion to strike out certain portions of the answer, which motion was denied, it was held that the case was properly set down for hearing on bill and answer.^ Upon the hearing of the cause upon bill and answer, all the facts alleged and well pleaded in the answer for the purposes of the hearing are taken to be true.^ And where the defend- ant demurred to a portion of the bill and filed an answer to a portion raising questions of fact and the demurrer was sus- tained, the plaintiffs electing to stand by their bill, it was held that the defendant was entitled to have the case set down for hearing on the questions raised by the answer.^ It is said that the failure to reply to the answer is in the nature of a demurrer to the answer, and the case at the hearing will be governed upon the facts alleged in it.' § 309. Hearing on bill, answer and replication. — Where the plaintiff has filed a replication after an answer made by the defendant, but has obtained no order nor given any notice, as the practice requires for the taking of proofs in the cause, 1 Ante, §238. 636; Martin v. Reese (Tenn., 1899), 2 McGorray v. O'Connor, 31 U. S. C. 57 S. W. 419. C. A. 114, 87 Fed. 586; Welsbaoh Lt. » United States v. Freight Ass'n, 7 Co. V. Mahler, 88 Fed. 427. C. C. A. 15, 19, 58 Fed. 58, 34 L. R A. 3 Roach V. GIos, 181 111. 440, 54 N. 73; Bunk v. Hemphill, 7 Ga. 896; E. 1032. Scott V. Cook, 30 Ky. (4 Mon.) 380; * Brewster v. Cahill, 81 111. App. Doolittle v. Gookin, 10 Vt. 265; Cocke 37 V. Minor, 25 Grat. (Va.) 246. 418 THE HEARING. [§ 310. within the time required, the opposite party may notice or set the case down for hearing on bill, answer and replication, and the case will proceed without the proofs. Or, if there are ex- hibits attached to and made part of the pleadings, the hearing will proceed upon bill, answer, replication and exhibits so at- tached. It seems to be the prevailing rule that in such case the cause will be heard as though there was a waiver of the replication, and as though it stood for hearing on bill and answer.' \xi Re Starr's Estate''' the court say: "In general, the op- eration of a replication is to put the respondent to proof of the allegations in the answer not responsive to the petition, but set up by way of confession and avoidance. But where, with- out affording the defendant an opportunity to substantiate his answer b^^ proof, the plaintiff sets down the cause for hearing on bill, answer and replication, the effect is the same as if heard on bill and answer alone, and the answer will be taken as true in every point." And where a cause was set down for hearing on bill and exhibits, it was held "that the whole of the answer must be considered as true." ' § 310. Final hearing on pleadings and proofs. — The final hearing of the cause may be upon the pleadings and proofs taken before a commissioner or master in chancery and his report of the same, where that practice of taking proofs ob- tains, or upon pleadings and proofs in open court in jurisdic- tions where that practice prevails. In some jurisdictions where it is the practice to take the proofs in the cause before a commis- sioner or master in chancery, it is usual for counsel, upon the hearing, to make a brief sta,tement of the case as set out by the pleadings, exhibiting the issue that is to be tried and the evidence that has been adduced and bears upon those issues. And in some of those courts it is provided by rule that counsel for the com- plainant shall make and submit to the court an abstract of the proofs showing the evidence relied upon to substantiate his theory of the case. This rule applies as well to the defendant when a defense is offered. Genei'ally upon the hearing the 1 Wiser V. Blaohly, 1 Johns. Ch. 2 13 Phil. Rep. 212, 213; Wilkinson 607; United States v. Ferguson, 54 v. Bauerle, 41 N. J. Eq. 635, 7 Atl. 514. Fed. 28; McGorray v. O'Connor, 31 3 Leeds v. Insurance Co., 15 U. S. U. S. C. C .A. 114, 87 Fed. 586. (2 Wheat.) 380, 384. § 310.] THE HEAKING. 419 proofs are read by counsel or by a clerk employed for that purpose, the plaintiff first submitting the proofs taken upon his side of the case, the defendant submitting those taken by him, and the plaintiff presenting those taken in rebuttal. After the proofs are read and submitted, counsel for the re- spective parties are heard in the argument of the cause, coun- sel for the plaintiff having the opening and the closing argu- ment. It is generally required in the United States court that coun- sel shall also submit an argument in writing at the close of his oral argument, briefly citing the proofs and the law relied upon in support of his contention. When the proofs in the cause are taken in open court, the hearing, or trial, proceeds as in a trial of a suit at law, the plaintiff calling his witnesses and having them sworn and examined in open court, the de- fendant submitting his testimony in the same manner, counsel presenting at the time any documentary evidence that may have a bearing upon the case. If objections to any of the tes- timony, or to any documentary proof offered, is made by either counsel during the taking of the evidence or the examining of witnesses, the objection is noted by the court, or by the court stenographer; but the court cannot exclude the testimony for the reason that the counsel offering the proof has the right to have his offer of evidence and the answer of the witnesses, or the document offered, brought before the appellate court in the record in case the cause is appealed.^ In discussing the practice in this respect Mr. Chief Justice Champlin, in 2IeecTi v. Lee^- used this language: "The circuit judge, in cases of this character, has no authority to absolutely reject testimony, unless it is of a nature so scandalous as not to be proper to appear in the record of the proceedings. He cannot reject testimony upon the objection that it is irrele- 1 In Hewlett v. Shaw, 9 Mich. 346, der his statutory right of appeal the cause having gone to trial in eflfectual. And in Bilz v. Bilz, 37 open court on an issue of fact, the Mich. 116, it was held that all testi- judge refused to receive evidence mony offered should be admitted, and dismissed the bill for want of and if admitted subject to objection, equity. Held, that the dismissal was an appeal from the ruling thereon erroneous; the complainant was en- brings up the whole testimony, titled oi right to put in his evidence, ^ gg Mich. 274, 284. since in no other way could he ren- 420 THE HEAEING. [§ 311. vant and immaterial. He may rule upon it, but the testimony must be taken and returned, and this for the reason that the supreme court is in equity an appellate court and has a right to pass upon all the testimony, as well as upon the rulings of the circuit judge. If testimony is forced into a case which is evidently irrelevant and immaterial, a motion may be made to expunge it, and the court may order it expunged with costs against the solicitor insisting upon its being taken; but it must be returned to this court, in order that we may pass upon the correctness of the ruling." In Merson v. Merson'^ Mr. Justice Montgomery said: "On appeal a case is tried de novo, and the appellate court is ex- pected to have the benefit of all offered testimony. The only exceptions to this rule are when, on grounds of public policy, the testimony should not be permitted to be elicited, as in case of a flagrant attempt to disregard the privilege of witnesses, or where it becomes necessary to fix a reasonable limit to the number of witnesses called to a single point, as in case of an attempted impeachment. But ordinarily the offered testimony should be taken subject to objection." At the conclusion of the proofs the cause is argued by counsel; counsel for the plaintiff having the opening and closing. § 311. Matters disposed of at the final hearing. — All in- terlocutory orders or decrees that have been obtained during the pendency of the cause — as, for example, preliminary in- junctions, orders for appointment of receivers, for the pay- ment of money, or orders or interlocutory decrees that in any way affect the parties, or any of them, at the final hearing of the cause — are finally considered and disposed of. The pre- liminary injunction may be made perpetual or it may be dis- solved, the receiver discharged upon settlement of his trust, and the funds or property in his hands turned over to the par- ties to whom they equitably belong. But it may be necessary to continue a receiver even after the hearing, for the carrying out of some interlocutory order, or to hold the same until the 1 101 Mich. 55, 59. Where the de- bill which are not denied in the an- fendant does not insist upon a hear- swer and the findings of fact made ing on bill and answer, but proceeds by the reference. Dudley v. East- to trial after reference, the case man, 70 N. H. 418, 50 Atl. 101. stands on the facts alleged in the § 312.] THE HKAEING. 421 happening of some event which is necessary to fully and finally dispose of the controversy, the court making its decree or determination settling fully the rights of the parties, deter- mining what shall be done with reference to the unsettled matters which are often referred to a commissioner or master, and ordering that when the object for which the interlocutory order is allowed to run has been accomplished according to the terms of the decree, the decree shall be final. But usually all matters of controversy and dispute are settled and determined -at the hearing, and a decree made adjudging the rights and privileges of the parties, and finally disposing of the cause. § 312. Conflict in state and federal jurisdictions.— The jurisdiction of the state and federal courts is quite distinct, but there is sometimes more or less conflict. While the federal courts have always recognized that there is a certain comity due to the decisions of state courts, and have generally felt bound to respect the decisions of those courts, and from the time they were made have regarded them as conclusive in all cases upon the construction of their own constitution and laws, they have refused to surrender their own judgment to decisions made in a state and declare contracts to be void which, upon full consid- eration, they have declared to be valid.' As was said by Chief Justice Taney, " We ought not to give them a retroactive effect ■and allow them to render invalid, contracts entered into with citizens of other states which in the judgment of this court were lawfully made. For if such a rule were adopted, and the comity due to state decisions pushed to this extent, it is evi- dent that the provision in the constitution of the United States which secures to the citizens of another state the right to sue in the courts of the United States might become utterly useless and nugatory."^ Chief Justice Waite, in Douglass v. Qoiinty of Pike^ said: " The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on con- tracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but • not retroactive. After a statute has been settled by judicial con- 1 Rowan v. Runnels, 5 How. (U. S.) 2 Rowan v. Runnels, 5 How. (U. S.) 134, 139; Douglass v. County of Pike, 134. 101 U. S. 677, 686. ' 101 U. S. 677, 687. i22 THE HEARING. [§ 313. struction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment." It has been held without dissent "that the title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situate." ' In Brine v. Insurance Oo.'^ the supreme court of the United States in their opinion say: "It would seem that no argument is necessary to establish the proposition that when substantial rights, resting upon a statute, which is clearly within the leg- islative power, come in conflict with mere forms and modes of procedure in the courts, the latter must give way and adapt themselves to the forms necessary to give effect to such rights. The flexibility of chancery methods, by which it molds its de- crees so as to give appropriate relief in all cases Avithin its jurisdiction, enables it to do this without violence to principle. If one or the other must give way, good sense unhesitatingly requires that justice and positive rights, founded both on valid statutes and valid contracts, should not be sacrificed to mere questions of mode and form." In Stutsman County v. Wallace'^ the court say: "It is well settled that upon the construction of the constitution and laws of a state, this court, as a general rule, follows the decisions of her highest court, unless they conflict with or impair the efficac}' of some provision of the federal constitution or of a federal statute or a rule of general commercial law." And so it may be said that when a statute of the state which is claimed to be a contract is involved in a cause pending in the federal court^ that court will construe it irrespective of any construc- tion put upon it by the state court.* § 313. Objections at the hearing. — Objections to the form or substance of the bill, or objections which go to defeat the object of it, may, as we have seen, be raised by demurrer or by plea, and generally should be so presented and not left to be raised for the first time at the hearing. There are certain 1 United States v. Crosby, 7 Cranch s 143 U. S. 393, 306. (U. S.), 115. * Thompson v. Perrine, 103 U. S. 2 96 U. S. 637, 634 806. § oli.J THE HEAEINQ. 423 objections that should be taken advantage of by demurrer and will not be considered if raised for the first time at the hearing; as, for example, objections to the form of the bill, or objections as to parties, if the cause can proceed to a final de- cree without them, and without affecting their rio-hts or inter- ests, or the rights or interests of others in the controversy. But the liberal statutes allowing amendments in force in most jurisdictions give the courts great latitude, as we have seen, in preserving the equities of all interested parties, and it would be difficult to point out any omission as to matter of substance where the court would not allow an amendment even at the hearing if to recognize it and grant it would meet the demands of justice, whether it be an amendment to the pleadings or the taking of further proofs or the giving of further time where no great laches had been indulged in. These questions are governed by the broad and equitable discretion of the court of equity; but after the issue has been submitted, the indulgence of the court is not so readily granted.' § 314. A feigned issue. — Courts of equity have always as- sumed the right in their discretion to submit certain questions of fact to a jury for their verdict or answers. Formerly this was done by making up a feigned issue: The origin of the feigned issue and its early practice in the English court is given us by Blackstone in his Commentaries as follows: "It very seldom happens that the first decree can be final, or con- clude the cause; for, if any matter of fact is strongly contro- verted, this court is so sensible of the deficiency of trial by written depositions that it will not bind the parties thereby, but usually directs the matter to be tried by jury ; especially such important facts as the validity of a will, or whether A. is the heir at law to B. . . . But, as no jury can be sum- moned to attend this court, the fact is usually directed to be tried at the bar of the court of king's bench, or at the assizes, upon a feigned issue. For (in order to bring it there, and have the point in dispute, and that only, put in issue) an action is brought, wherein the plaintiff by a fiction declares that he laid a wager of five pounds with the defendant that A. was heir at law to B. ; and then avers that he is so, and therefore de- 1 Gubbins v. Laughtenschlager, 75 Fed. 615. See ante, §g 250-253. 424 THE HEARING. [§ 314. mands the five pounds. The defendant admits the feigned wager, but avers that A. is not the heir to B. ; and thereupon that issue is joined, which is directed out of chancery to be tried; and thus the verdict of the jurors at law determines the facL in the court of equity." ' But that fiction of legal submission of facts has long since been abandoned, and now in cases where the court is doubtful as to the facts involved it may call to its assistance a jury to which it submits certain questions involving the facts that are in doubt or are to be decided, to which the answer of the jury is taken after submitting to them the evidence under the direc- tion of the court. The verdict of the jury is but an answer to the questions submitted, and is only used, as is said, to assist the conscience of the court, and in no way binds the court to render a judgment or decree in conformity with it; on the other hand, the court may utterly disregard the verdict and enter a decree based upon its own judgment. In American Dock, etc. Co. v. Trustees'' the appeal was taken for the purpose of obtaining the decision of the court as to the nature of a feigned issue. The court in its opinion said: "An issue, or, as it is commonly called, a feigned issue, is a mode of procedure adopted from the civil law by courts of law as well as courts of equity as a means of having some question of fact arising incidentally, and to be made the foundation of some order or decree, determined by the verdict of a jury. It is called a feigned issue for the reason that its object is not the establishment of a legal right on which a judgment shall regu- larly follow, but the ascertainment by a formal trial of some issue of fact arising in another cause, and material to the decis- ion of the latter. For convenience of trial the issue must be given the form of a common-law action, with appropriate pleadings, and an issue thereon; but, nevertheless, the nature and purpose of the issue give it character as a feigned issue or otherwise, and not the form in which the issue is expressed. The issue may be in any form adapted for a trial in a court of law before a jury. "Where convenience requires it, the issue may be framed as if upon a wager ; or, if practicable, formal pleadings in an ordinary action at law may be resorted to, and 1 3 Bl. Com. 453. 2 37 N. J. Eq. 366, 269. § 315.] THE HBAEING. 426 the issue may be in such form as to present the real subject- matter in controversy without losing its character as a feigned issue." In Church V. Kelsey ' the question as to the right to trial by jury in equity cases was the contention, and it was held that the constitution of the United States did not have the efifect of taking away from the states the power of giving courts of equity the right to hear and determine suits brought by the holder of equitable interests in lands to establish rights against the holder of the legal title. And so it has been determined that there is no general or constitutional right to a trial by jury in cases that are clearly within the equity jurisdiction, even where the defendant has been brought into equity against his will.^ And in Michigan the court held that the legislature could not abridge the right of courts of chancery to decide questions of fact without the intervention of a jury.'* § 315. Submission of facts to jury discretionary with court. — In equity cases neither party as matter of right can demand a jury. Usually the case is tried by the court, but the court in its discretion may order an issue or issues of fact to be tried by a jury, or may grant a petition made by the parties asking that certain issues involved in the cause be submitted to a jury. If either of the parties desires that a certain fact or facts, or all of the facts, be submitted to a jurj' for its decision, he may petition the court, setting out in his petition the ques- tions he desires to have tried, file his original petition with the register of the court, serve a copy of it with notice of hearing upon the opposite solicitor, and bring the matter to the atten- tion of the court according to the rules and practice governing such matters. If allowed, the facts are submitted to the jury in 1 121 U. S. 282. Any issue present- 135; Atwood v. Smith, 11 Ala. 894; ing a question of fact wliere there is Townsend v. Graves, 3 Paige Ch, such a conflict of evidence as to (N. Y.) 453; Pomeroy v. Winship, 12 make it doubtful on which side the Mass. 514, 7 Am. Deo. 91 ; Harding v. preponderance lies may properly be Handy, 24 U. S. (11 Wheat.) 103. submitted; as, for example, whether 2 Gates v. Allen, 149 U. S. 451; Dorr the date in a contract had been v. National Bank, 128 Mass. 349; changed. Mosher v. Davis, 58 N. Y. Bank v. Moulton, 143 Mass. 543. Sup. 529. Or any issue depending » Bank v. Blodgett, 115 Mich. 161, upon conflicting testimony. Griffith 169; Brown v. Kalamazoo Circuit V. Blackwater, 46 W. Va. 56, 33 S. E. Judge, 75 Mich. 294. 426 THE HEARING. [§ 316» the form of questions; the solicitor, in setting out the facts which he desires to have submitted, stating the questions that he proposes for the jury's verdict; as, for example, if the issue be as to whether a deed of conveyance had been obtained by fraud, the allegations of fact making up the fraud being al- leged in the bill, the solicitor would submit as a question for the jury whether the deed so described was obtained by fraud, and the verdict of the jury would be an answer which is virtu- ally yes or no to the question or questions proposed and not a general verdict upon the merits of the case. The issue to be submitted is often made up by stipulation and agreement of the parties through their solicitors, and submitted to the court for its approval. The court may submit the questions stipu- lated, may add others, or strike out any of the questions he de- sires not to submit, or may refuse to submit any of the ques- tions and make up the issues to be submitted, or may refuse to submit any issue at all and try and determine the facta without a jury. The court is not bound to abide by a stipu- lation of the parties that the issues of fact involved be sub- mitted to a jury; the matter of allowing a jury to try any part or portion of the facts in the case is entirely discretionary with the court.' In Baker v. Safe, etc. Co? the court say : " A court of equity, moreover, has full power and right to decide everj' question of law and fact that maj' arise out of the subject-matter be- fore it, and it is not bound to send issues of fact to be tried by a jury." Where, in the trial of an equity case, the plaintiff complained that the court refused to give to the jury various instructions which he requested, and also to submit to the jury a number of questions asked for by him, the court held: "It being an iln Van Hook v. Pendleton, 1 say whether the verdict is right: Blatchf. (U. S.) 187, 195, Betts, J., and the court may set it aside. It said: "It is not a matter of course i.s usually the better practice for the to order a feigned issue; but the court to try such issues alone; but party applying must lay a founda- the court may in its discretion order tion for it. ... A feigned issue any issue or issues of fact to be tried is not to be granted unless the by a jury.'' Maclellan v. Seim, 57 opinion of the jury on a question is Kan. 471, 46 Pao. 959. found to be needed. And after a 2 93 Md. 368, 381, 48 Atl. 920, 49 AtL jury shall have passed upon the 633; Lewis v. North, 63 Neb. 552, 87 question, it will be for the court to N. W. 313. § 31(5.] THE HEAKING. 427 equitable proceeding, and the jury being called simply for ad- visory purposes, the court, not being bound to adopt its jfind- ings, had a right to submit to it such questions as it chose, and to give only such instructions as it might see fit." ' And it has been held that the court in the course of the hearing may take the advice of different juries at different times as to the facts involved in the trial.- § 316. Effect of the verdict or findings of the jury,— The only object in submitting questions of fact to a jury in a chan- cery cause, it is said, is to assist the conscience of the chancellor. The verdict in no way binds the chancellor to find the questions of fact as decided by the jury ; he may disregard the verdict and determine the facts to be entirely different and base a decree upon his findings, without reference to the verdict of the iurj. In such case "the findings of the jury are largely advisory to the court; and the court may adopt them or set them aside, in whole or in part, or make new or additional findings from the evidence, as the same may warrant.'" In Brady v. Yost* it was held in an equitable action for spe- 1 Royce r. Latshaw (Colo., 1900j, 63 Pac. 627.. mitchell V. Simpson, 62 Kan. 343, 63 Pac. 440. 3 Wood ^'. Turbush, 63 Kan. 779. In Earle v. McCartney, 109 Fed. 13, 15, it was held that the court of equity would not grant an issue of fact to be submitted to a jury where the court would not feel at liberty to follow it. The court said: '-These questions have been fully heard be- fore the master and have now been considered by the court. 1 see no advantage to be gained by going over the ground again, especially in ■view of the fact that, if the finding should be against the validity of the papers, I should not feel at liberty to follow it. The application for an issue is accordingly refused." Seisler V. Smith, 150 Ind. 88, 46 N. E. 993. 455 Pac. 543 (Idaho, 1898). In Shorten v. Judd, 60 Kan. 73, 55 Pac. 2S6, " the principal questions to which testimony was directed at the trial were the validity of the marriage which it was claimed was entered into between W. J. and S. R., and whether J. J. was the issue of such marriage. A jury was called to whom two questions were submit- ted, which, with their answers, are as follows: "Was S. M., formerly S. R., the wife of W. J. at the time of his death? A. Yes. Is the plaint- iff, J. J., the son of W. J., deceased V A. Yes. These findings were ap- proved and adopted by the court." The court further held: "The ob- jection to the submission of issues of fact to the jury is not well taken. It may be conceded that neither party was entitled, as a matter of right, to a jury, but it was compe- tent for the court to take the advice of the jury upon disputed questions of fact. In cases of equitable cogni- zance it is entirely within the dis- cretion of the court whether any or all the issues of fact shall be sub- mitted to a jury, and even the find- 428 THE HEARING. [§ 316. cific performance of a contract that the defendant was not en- titled to a jury as matter of right; that "the jury was required to pass upon certain questions of fact, and its findings were only advisory to the court." This is the prevailing practice in nearly all of the states, although in some of the states there are statutes that more or less affect the practice in this regard. And so in Bigger staff v. Biggerstaff^ the trial court upon mo- tion set aside the verdict of the jury and entered a decree in favor of the defendants, dismissing complainant's bill. This was alleged to be error, and it was further claimed that the weight of evidence in the trial of the cause supported the ver- dict and it should have been permitted to stand. The court say: "It was not, as a matter of law, error for the trial court to set aside the verdict and enter a decree contrarj'^ thereto. In cases where the statute requires an issue in chancery to be made up, to be tried by jury, the verdict is not advisor^', but is as conclusive as a verdict of a jurj' in an action at law.^ Where, however, the issue is not required by the statute to be submitted to a jury, it is discretionary with the chancellor to reject the verdict and render a decree against their findings or grant a new trial, as he ma}' believe justice requires. The chancellor in such case is the sole judge of the evidence, and the purpose is to inform his conscience, and is advisory^ only." ' In the federal courts the rule prevails that the submission of issues of fact to a jury in an equity case is discretionarj'' with the court and the verdict of the jury is advisory merely. And it has been held that the court need not formally set aside the ings of the .iury upon the issues sub- 2 Meeker v. Meeker, 7o 111. 260; mitted are not conclusive upon the Whipple v. Eddy, 161 111. 114; Len- court. It may adopt or reject the ning v. Lenning, 176 111. 180. findings as the evidence may re- 3 Milk v. Moore, 39 111. 584; Guild quire, and in the end the court must v. Hull, 127 111. 529: Titcomb v. Van- determine for itself every issue in tyle, 84 111. 371; Van Hook v. Pendle- the case." Hull v. Watts, 95 Va. 10; ton, 1 Blatchf. (U. S.) 187; Quinby v. Miller v. Wills et al., 95 Va. 337; Conilan, 104 U. S. 420. "Apart from Moran v. Daly, 13 App. (D. C.) 137; statute, the findings of a jury in pro- Neale v. Suber, 56 S. C. 298, 33 S. E. ceedings which are clearly of equity 463. cognizance only, are not binding 1180 111. 407, 410, 54 N.E. 333; Dud- upon the court, which may set ley v. Dudley, 176 Mass. 34, 56 N. E, them aside or make different ones." 1011. Kohn V. McNulta, 147 U. S. 238. §§ 317, 31S.] THE HEARING. 429 verdict of the jury before making a decree in accordance with its own views of the evidence, but may disregard it."' § 317. Instructions to jury, or order as to verdict, not subject for exceptions. — The whole proceedings, the sub- mitting questions to the jury, adopting or rejecting the verdict of the jury, as we have seen, is subject entirely to the discretion of the court. The court may refuse to compl}?^ with the re- quest to submit the issues to the jnry. may ignore or adopt the verdict of the jury, the findings being merely advisory. It therefore follows that the instructions to the jury given by the court in case issues are submitted to a jury, or the orders which the court may make with reference to the adoption or re- jection of the verdict, resting so entirely in the discretion of the court and not having any binding force or effect upon the termination of the case by the court, cannot be subjects of ex- ceptions, and cannot be reviewed by the appellate court. And where the court in its findings adopts the conclusions of the jury, and the appellant excepted to certain instructions given the jury, it was held that, the verdict being merely advisory to the court, the instructions were not the subject of an excep- tion.^ § 318. The court's determination at the hearing. — The evidence being concluded and presented to the court, the argu- ment of counsel and their briefs, if desired, being submitted, and the case closed and submitted to the judgment of the court for its fina.1 decree, the court may determine the case by dis- missing the bill of complaint, which maybe without prejudice, or by granting the relief prayed, or by granting such relief as in the judgment of the court the case merits, if the prayer for relief is suflBcient. Or the court may decide the questions in- volved, and by decree order certain things to be done which are necessary to be done for facilitating the determination of 1 Idaho, etc. Co. v. Bradbury, 132 60 Ala. 131; Sullivan v. Royer, 73 U. S. 509; Garsed v. Beall, 93 U. S. Cal. 348, 13 Pao. 655; Peabody v. 684; Wilson v. Riddle, 123 U. S. 615; Kendall, 145 III. 519, 33 N. E. 674; Barton v. Barbour, 104 U. S. 126. Pixlee v. Osborn, 48 Mo. 313; Tren- 2 Sheerer V. Goodwin, 135 Cal. 154, ton, etc. Co. v. Rossell, 3 N. J. Eq. 57 Pac. 789; Richardson v. City of Eq. (1 H. W. Green), 511; Meek v. Eureka, 110 Cal. 441, 43 Pac. 965; Spraoher, 87 Va. 163, 13 S. E. 397; Diamond Coal Co. v. Cook, 139 Cal. Huse v. Washburn, 59 Wis. 414, 18 xviii, 61 Pac. 578; Marshall v. Croom, N. W. 341. 430 THE HEAEINa. [§ 318. the questions involved in the litigation. If the Court finds that the defendant should prevail, it will order a decree dismissing the complainant's bill absolutely or without prejudice. If the decree for the defendant is because of some error of the com- plainant in the procedure or pleadings and in no way affecting the merits of the cause — as, for example, if there is want of parties, or, if in the federal court, want of jurisdiction, or a failure to pray for. the proper relief, or because of some error which can evidently be remedied, — the court will not enter an absolute decree dismissing the bill of complaint, but will dis- miss the bill without prejudice, for such a decree will be no bar to the filing of another bill for the same cause provided the defects that occasion the decree are remedied.' A decree dismissing the bill, not mentioning that it is without prejudice, would be considered to be an absolute decree and would oper- ate as a bar to any subsequent suit for the same cause.^ It sometimes happens that the cause cannot be fully disposed of; that there are certain estimates to be made or accounts to be adjusted, or damages to be assessed, or sales tp be made and money distributed and paid as decreed, in which case a refer- ence is made to a master or commissioner to close the matter as directed. If further directions are required, the court in such case will hear an application for that purpose and give the needed directions for carrjnng out its decree. But if it is a final decree, it will not be necessary for the court to make any further order that will vary the decree made or be inconsistent with it. Whether the decree found by the court be a final decree or not depends upon whether it finally disposes of the litigation so far as the court is concerned. A final decree has been de- fined to be " the last decree which is necessary to be entered to give the parties the full and entire benefit of the judg- ment of the court." In determining whether a decree is a final decree, the test would seem to be whether any ques- tions or directions are reserved for the future judgment of the court. 1 Rosse V. Rust, 4 Johns. Oh. (N. Y.) 2 Case v. Beauregard, 101 U. S. 688; 300; Walden v. Bodley, 14 Pet. (U. S.) Durant v. Essex, 7 Wall. (U. S.) 107; 156, 161 ; Howth v. Owens, 30 Fed. Neafie v. Neafie, 7 Johns. Ch. 1. 910. § 318.] THE HEAEING. 431 In Mills V. Hoag"^ the chancellor very clearly defines a final decree and illustrates its requisites and limitations. He says: "The decree in this case comes within that definition, as no further questions or directions are reserved for the future judgment of the court. And although some further proceed- ings are to be had before a master to carry into effect the decree, all the consequential directions depending upon the result of those proceedings are given in the present decree. It is true there ma}' be exceptions to the master's report; and in that case a further order of the court will be necessary to dispose of those exceptions. But a decree is not the less final in its nature because some future orders of the court may possi- bly become necessary to carry such final decree into effect. The usual decree in mortgage cases, for the sale of property and the distribution of the fund among the parties and finally disposing of the question of costs, is a final decree as between the complainant and the defendants, and is constantly enrolled as such; although the master's report of the sale and distribu- tion may be excepted to if it is erroneous, and it may require a subsequent order of the court to dispose of the questions which may thus arise." 17 Paige Ch. (N. Y.) 18, 19; Railway Co. v. Express Co., 108 U. S. 34, 28; Bostwiok V. Brinkerlioff, 106 U. S. 3; Grant v. Insurance Co., 106 U. S. 429. CHAPTEE XIV. PROCEEDINGS BEFORE MASTERS OR COMMISSIONERS. § 319. The master in chancery. 380. Duties ministerial and judi- cial. 821. The court cannot refer all the issues to a master to hear^ try and determina § 322. Objections and exceptions to the report of the master. § 319. The master in chancery. — The office of master in chancery is of very early origin, commencing when the chan- cery court first became organized. Masters were appointed by the king to assist the chancellor in hearing the complaints of those seeking redress and furnishing them with appropriate writs for the commencement of their causes. With the in- crease of the duties and independence of the court of chancery came a corresponding increase in the duties and importance of the master. Important facts were referred to him to hear the proofs and report his findings upon them to the court. This office continued in England until the present code of practice was adopted. Masters in chancery are generally appointed by the court to assist in its ministerial duties. Matters are referred to them by orders of reference or decretal orders involving the deter- mination of interlocutory questions, to take testimony, make computations, and often to sift and collate the testimony and the evidence adduced and report to the court their findings and the reasons therefor. In some jurisdictions these officers are elected to their office and are called by different names, as court commissioners, or circuit court commissioners. The United States courts appoint standing masters in chancery in their respective districts, and often it is necessary to appoint special masters to attend to and report upon special matters, referred to them.' It is still the practice in some jurisdictions, 1 United States Equity Rule 82 provides for appointment of masters in chancery as follows: "The circuit courts may appoint standing mas- ters in chancery in their respective districts (a majority of all the judges. § 320.] PEOCEEDINGS BEFORE MASTERS, ETC. 433 though not so general as formerly, to refer the case to a mas- ter, or commissioner, by an order allowed of course by the rules of practice, to take the proof and report all the testimony and evidence in the case to the court to'be used at the hear- ing, the course of practice in such cases being fixed by statutes and by rules. § 320. Duties ministerial and judicial.— The duties of the master or commissioner in chancery cannot be said to be en- tirely ministerial; he is generally required to report his find- ings as well as the proofs taken by him, and in some cases to analyze the proofs and determine for the court the real ques- tions in issue. The Pennsylvania court in discussing this ques- tion said: "By reason of the large amount of equity business, original and appellate, it has become impossible for this court to examine every case, and in detail; but we must be brought directly to the points of the contest. This can be done only by a preliminary hearing before a competent master, who can take time to examine the case well and report upon it intelli- gently and accurately. The effect of this is to eliminate from the controversy that which is undisputed, and to develop the true points of contest. . . . But there is no impropriety in this, as it only serves to develop the cause fully, and is not binding on the parties unless approved by us after an exami- nation of the matters in dispute. The conclusiveness of a master's report is sometimes spoken of. But, properly speak- ing, no report is conclusive. That would be to make the judg- ment of an officer performing an ancillary service superior to our own. The weight due to a master's or auditor's report depends on the matter in question. When he reports facts di- rectly proved by the witnesses we are accustomed to give his report great weight, because of his superior opportunities of judging of the credibility of the witnesses and the effect of their testimony. But when the fact is a deduction merely from other facts reported by him, his conclusion is simply a result of reasoning, of which we arenas competent to judge as he. Then if we find a master supporting a conclusion by false thereof, including the justice of the ment); and they may also appoint a supreme court, the circuit judges master ^ro hac vice in any particu- and the district judge for the dis- lar case." trict, concurring in the appoint- 28 434 PllOCEEDINGS BEFOEE MASTEES, ETC. [§ 320. deductions, or upon erroneous views of the character and weight of the facts actually found, it is not only our right but our duty to correct his error. When in order to arrive at a proper decree he also states his conclusions of law, they are but opinions submitted for our adoption, if we think they are founded in reason and law. Hence the report of a master is neither a decision nor an infallible guide, but is a serviceable instrumentality to aid us in performing our own function." ' But the court of Illmois say: "He is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions. His powers are delegated to him by the court, and the court can confer on him no judicial powers. Those pow- ers are vested in the judiciary, and cannot be delegated to any but persons belonging to that department of government. All the acts of the master become binding only by being approved and adopted by the court. Hence the court alone can find, adjudge and decree so as to bind the parties and the subject- matter."^ After all the discussion and objections it seems clear that these officers have some judicial powers; their reports carry with them great weight, though not conclusive. They are often called upon to report upon the matters that are really in issue, and frequently find and determine facts that control certain questions that are referred to them; always, however, subject to adoption or rejection by the court. They cannot make final determination of the matters submitted, and the parties may always protect themselves by exceptions to their findings and report, when the chancellor will review the proofs bearing upon these exceptions. The master is always limited in his findings to the decree or decretal order referred to him ; from it he receives authority to act in the premises and he cannot depart from it.' "Where the regular master in chancery is a party to the suit, it is the duty of the court to appoint a special master.^ iPhillips' Appeal, 68Pa. St.130,138. where it was held that the acts of 2 Hards v. Burton, 79 111. 504, 509; the commissioners appointed by the Kimberly v. Arms, 129 U. S. 513; decree in chancery, who materially Palethrop v. Palethrop, 184 Pa. St. departed from the authority therein 585, 39 Atl. 489. conferred, were void. 3 Welsh V. Louis, 31 111. 446, 457, * Gilliam v. Baldwin, 96 111. App. 833. § 321.J PEOCEEDINGS BEFORE MASTERS, ETC. 435 § 321. The court cannot refer all the issues to a master to hear, try and determine.— In the judge of the court alone is vested the authority to fully and finally determine the issues of law and fact in every cause brought into the court, and he cannot delegate that authority to any other person or officer, except by consent of all the parties to the case. It has been said ' that " A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to per- form such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he may communicate by his findings in such cases, upon the evidence presented to hira, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment as to the weight of the evidence. In practice it is not usual for the court to reject the report of a master, with his findings upon the matter referred to him, unless exceptions are taken to them and brought to its attention, and, upon ex- amination, the findings are found unsupported or defective in some essential particular. It is not within the general province of a master to pass upon all the issu£s in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the consent of the parties. It cannot, of its own motion, or upon the request of one party, abdicate its dut}' to determine by its own judgment the controversy pre- sented, and devolve that duty upon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, and report his findings, both of fact and of law, and such reference is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references, without such consent; and his determina- tions are not subject to be set aside and disregarded at the 1 Kimberly v. Arras, 129 U. S. 513, 108 U. S. 66; Tilghman v. Proctor, 533; Basey v. Gallagher, 30 Wall. 125 U. S. 136; Callaghan v. Myers, (U. S.) 670, 680; Quinby v. Conlan, 104 138 U. S. 617, 666. U. S. 420, 434; Medsker v. Bonebrake, 436 PEOOEEDINGS BEFOEE MASTEES, ETC. [§ 322. mere discretion of the court. A reference, by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitra- tion — a proceeding which is governed by special rules, — is a submission of the controversy to a tribunal of the parties' own selection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tribunals estab- lished by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed under the reservation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the ap- plication of the law, but not otherwise." The Pennsylvania court among others have expressed them- selves in strong terras upon this subject, holding that an order referring all the issues in a cause to a master is a simple nul- lity, and that a decree made under such circumstances has nothing to support it, for the reason that the cause has not been heard before any one having the right to hear, try and determine it.^ § 323. Objections and exceptions to the report of the master. — While the report of the master is held to be merely advisory, it is also conceded that it carries with it great weight; that his findings of fact "are supported by a strong presumption of correctness, and will not be set aside or modi- fied in the absence of clear evidence of mistake or error." ^ Plis conclusions will be held to be correct unless the court is clearly convinced that they are wrong.' It is therefore im- portant, if the findings and report of the master in chancery do not comport with the law and facts in the case, that excep- tions should be taken to the report and presented to the court. These exceptions must be specific and point out the special er- rors upon which the party relies; and it has been said that " the object of such definiteness is to give the master an opportunity 1 Palethrop v. Palethrop, 184 Pa. 341 ; Tainter v. Franklin Nat Bank, St. 585, 39 Atl. 489. 107 Fed. 825; Haymond v. Camden, 2 Columbus, etc. Co. Appeals, 48 C. 48 W. Va. 468, 37 S. E. 642; Hubbard C. A. 278, 109 Fed. 177. v. Hubbard, 79 111. App. 217. 3 Ward V. Bank, 130 Ala. 597, 30 So. § 322.] PROCEEDINGS BEFORE MASTERS, ETC. 437 •to see wherein his report is subject to objection and to apprise the opposite party of just what he has to meet." * Where testimony is objected to, the master should receive the testimony subject to the objection and report it to the court ; and where exceptions are talven to the report, the testi- mony should be reported by the commissioner so that the court may be able to pass upon the exceptions in the light of the testimony that was given to the commissioner.^ 1 Columbus, etc. R. Co. Appeals, 48 C. C. A. 375, 317, 109 Fed. 177; Craw- ford V. Osmun, 90 Mich. 77; Sheffield, etc. Ey. Co. v. Gordon, 151 U. S. 285; Neal V. Briggs, 110 Fed. 477; Poling V. Huffman, 48 W. Va. 639, 37 S. E. 526; Dorn v. Farr, 79 111. App. 226. In Whalen v. Stephens, 193 111. 131, 183, it was held that where no objec- tion was made to the evidence taken before a master, and no objections relating to the admission, exclusion or refusal to exclude evidence among the objections to the master's report, the hearing was limited to questions of this nature raised by the excep- tions; and when such questions are not so raised error cannot be as- signed in respect to it that the objec- tions came too late. U. S. Eq. Rule 83; Home Land & Cattle Co. v. Mc- Namara, 49 C. C. A. 643, 111 Fed. 833: Ward V. Jewett, Walk. Ch. (Mich.) 45; Sohwarz >-. Sears, Walk. Ch. 19. 2 Kansas, etc, Co. v. Electric Co., 108 Fed. 703. In Kingsbury v. Kings- bury, 20 Mich. 313, it was held that the report of the commissioner stands in the same relation to a decree as a ■verdict stands to a judgment. And iu Butterfield v. Beardsley, 28 Mich. 413, it was held to be a general rule that the report of a master in chan- cery will be received as true when there are no exceptions taken. CHAPTEE XV. THE DECREE. 333. 324. 335. 326. 327. 328. 339. 330. 331. 333. 333. The decree in equity corre- sponds to the judgment at law. (1) A final decree. (3) Interlocutory decrees. Some other distinguishing features. Some essentials to a valid de- cree. The frame of the decree. Drawing and settling the de- cree. A decree after the death of the party. Decrees pro oonfesso. Enrolment of decree. Necessity of enrolment. § 334. Someohangesthecourt is per- mitted to make. 335. Reopening the cause — Re- hearing. 336. The practice and reasons for granting. 337. Reopening decrees taken pro confesso and permitting de- fense. 338. The party moving to reopen the cause for rehearing must not be guilty of laches. 339. Form and requisites of the ap- plication, filing and serving the same, and the answer thereto. 340. The hearing. § 323. The decree in equity corresponds to the judgment at law. — The decree in equity is the sentence or judgment of the court, determined and pronounced after tlie hearing and submission of the cause. It has been said to be " a sentence or order of the court, pronounced on hearing and understand- ing all the points in issue, and determining the right of all the parties to the suit, according to equity and good conscience."^ Mr. Freeman says that " decrees generally conform to the description here given of them. They are none the less de- crees, however, if pronounced without hearing or understand- ing the points in issue. Neither is it necessary to their exist- ence or validity that the rights of the parties be determined according to equity and good conscience." ^ The decree in equity corresponds to a judgment of a court of law; and under the code practice a final adjudication, whether at law or in 1 3 Danl. Ch. PI. & Pr. (6th Am. ed.) 986. 2 Freeman on Judgments, sec. 9; Randall v. Payne, 1 Tenn. Ch. 144 § 324.] THE DECREE. 439 equity, is called a judgment.' It differs from a decretal order, in that it is a final disposition of tiie cause after the hearing upon the several questions at issue; while the decretal order is an order by tlie court upon motion or petition made before or after the hearing, or in an independent proceeding.^ They are usually orders made preparatory to the final judgment and for the purpose of governing the proceedings.' Decrees may be subdivided into (1) final decrees, and (2) in- terlocutory decrees, depending upon the finality of the dispo- sition or determination of the cause. § 324. (1) A filial decree. — A final decree has already been defined.* It is the full and final disposition of the pending cause after its submission to the court and the court's deliber- ation upon it. It reserves no further questions or directions for the judgment of the court; the cause by it is so disposed of that it will not be necessary to bring the case again before the court for final decision. It is what it purports to be — a final decree.^ It becomes very important to determine whether a decree is a final decree in those states where by the statute the right of appeal is limited to such decrees only. Where, at the foot of the decree, leave was given to either party to apply for such further order as might be necessary to the due execution of the decree, or that might be required in relation to any matter not finally determined by it, but the decree stated that "the court is of the opinion that the equity of the case is with the complainant," and ordered a perpetual injunction, it was held to be a final decree and might be appealed from;* that a decree of foreclosure and sale of mortgaged premises is a final decree, and that the defendant is entitled to an appeal therefrom without waiting for the return and confirmation of the sale by a decretal order, because the decree is final as to the merits, and the subsequent proceedings are but a mode of executing it. And so a decree dismissing a bill of complaint 1 Walker v. Walker, 93 Iowa, 643, 18; Gilpatriok v. Glidden, 82 Me. 301; 61 N. W. 930; Hughes v. Shreve, 3 Parker v. Flagg, 137 Mass. 28; Evans Meto. (Ky.) 547. v. Dunn, 36 Ohio St. 439; Van Meter 2 1 Barb. Ch, Pr. 337. v. Van Meter, 3 Grat. (Va.) 148. 3 Thompson v. White, 63 Cal. 505. 6 French v. Shoemaker, 13 Wall. * Ante, % 318. (U. S.) 86. 6 Mills V. Hoag, 7 Paige Ch. (N. Y.) 44:0 THE DECEEE. [§ 325. with costs to be taxed was held to be a final decree from which the defendant was entitled to an appeal.' A decree nisi, that is, a decree that is to take effect unless the defendant fails to show some cause against it within some certain time, or fails to perform some act directed by the de- cree, is a final decree if it disposes of and determines the questions at issue in the cause. And it may be said that a de- cree is a final decree even though some supplemental order is made in connection with it, or after it has been determined and granted. These supplemental decrees do not create any other or different liability, or alter or change the judgment and de- cision of the court as shown by the decree, but are rather de- crees or orders for the enforcement and carrying out of the final decree in the cause. §325. (2) Interlocutory decrees. — The interlocutory decree differs from the final decree in that it reserves the further con- sideration of the cause for a future hearing, and because it is not a final determination of the controversy, and so far as the court hearing the cause is concerned is not a determination of the issues; it has been generally held not to be appealable.^ It however often becomes a difficult question to decide, and decrees that would seem to be interlocutory because of the manner in which they are obtained often so fully dispose of material questions — questions that really determine the mat- ters in issue — that they are held to be, for the purpose of re- viewing the case in the appellate court, final decrees. But where the decree is interlocutory and not final, as, for exam- ple, a decree for the payment of alimony, allowing or dissolv- ing a temporary injunction, the punishment of one of the par- ties for contempt, the appointment of a trustee or receiver to take charge of the funds, a decree ordering a feigned issue, to confirm the report of a master in chancery upon some inter- locutory matter referred to him, — the remedy of the party against whom such order is made is not by appeal, but the proper remedy for the modification of it is by application to the court making the order.' In Knox v. Harshman^ the court say: "The general rule is 1 Fowler v. Hamill, 139 U. S. 549. 3 Furnald v. Glenn, 13 C. C. A. 27, 2 Vanderveer's Adm'x v. Holcomb, 64 Fed. 49. 23 N. J. Eq. 555. 4 133 U. S. 14, 16. § ?i26.] THE DECREE. 441 \yell settled that an appeal from a decree granting, refusing or dissolving an injunction does not disturb its operative efifect. When an injunction has been dissolved it cannot be revived except by a new exercise of judicial power, and no appeal by the dissatisfied party can of itself revive it." And where the decree purported to declare and regulate in advance all or nearly all of the future actions or doings of the court in the future disposition of the case, it was held by the court that "in spite of all this it really adjudicates nothing capable of being carried into effect without further inquiry as to the rights and liabilities of the parties," and dismissed the appeal. § 326. Some other distinguishing features. — Decrees are said to be further distinguished as decrees (1) in personam, (2) decrees in rem, (3) consent decrees, and (4) decrees nunc pro tunc; the titles distinguishing each of these decrees and indi- cating their nature. (1) The decree in personam is a direction or command to one of the parties to the suit in equity for the performance or non- performance of some act. Decrees in equity are more fre- quently decrees in pjersonam; as, for example, directing the conveyance of the title to the property involved, to discharge a lien, to cancel and deliver up an obligation, to specifically perform a contract, to foreclose a mortgage, to discontinue or abate a nuisance, or to perform or desist from the performance of some act which personally affects the parties in interest. (2) A decree in rem is one fixing and determining the status or title of the thing in controversy. (3) A consent decree is one entered by consent of the parties ; it is important in that a bill of review will not be allowed after such a decree has been filed, for if the parties have consented to the decree the court would not order it set aside. (4) A decree nunc p>ro tunc is what its title indicates: a de- cree entered " now for then." As where by the act of the court a decree has been delayed after the hearing of the cause for any reason, and the delay is in no way attributable to the laches of the parties, the court may render the decree and order it entered as of the time when it should or might have been entered if rendered in time. It has been said that it is the duty of the court to see that the parties shall not suffer by its delaj', and that " a nunc pro tunc order should be granted or 442 THE DECREE. [§ 327. refused, as justice may require in view of the circumstances of the particular case." ^ § 327. Some essentials to a valid decree. — Among the most important essentials to a valid decree is jurisdiction of the sub- ject-matter of the litigation and of the parties to the cause. Whenever it is discovered by the court, no matter at what stage of the proceedings, that there is want or failure of jurisdiction as to the subject-matter or the parties, it will refuse to proceed. The court will not undertake to determine the rights of persons who are not made parties to the suit at some time during its progress, nor will it render a final decree until all persons necessary to be made parties are brought before it either by actual or constructive service or by voluntary appearance. In Oraham v. Elmore ^ the court say : " It is the uniform rule that a final decree, or an interlocutory decree, which in a great measure decides the merits of the cause, cannot be pro- nounced until all the parties to the bill, and all the parties in interest, are before the court. This rule is usually applied to 1 Mitchell V. Overman, 103 U. S. 65; Gray v. Brignardello, 1 Wall. (U. S.) 637. 2Harr. Ch. (Mich.) 375; Orthwein V. Thomas, 137 111. 554, 571. "Parties to a decree, in the eye of the law, ai'e those only who are named as such in the record, and are properly served with process, or enter their appearance, while a privy in blood or estate is one who derives his title to the property in question by de- scent or purchase; and a privy to a judgment or decree is one whose succession to the rights of property thereby affected occurred after the institution of the particular suit, and from a party thereto." Free- man on Judgments (3d ed.), sec. 162; Borders v. Murphy, 78 111. 81 ; Shaw v. Hoadley, 8 Blackf. (Ind.) 165; Conn. V. Penn., 5 Wheat, (U. S.) 434, 5 L. Ed. 135; Ogden v. Davidson. 81 Va. 757; Russell v. Clark, U U. S. (7 Cranch), 69; Shields v. Barrows, 58 U. S. (17 How.) 130; Barney v. City of Baltimore, 73 U. S. (6 Wall.) 380; Hamilton v. Savannah, etc. Ry. Co., 49 Fed. 413; Muldrow v. Muldrow, 32 Ky. (2 Dana), 886. It has been held by the supreme court of the United States that it will not make a final decree upon the merits of the case unless all persons essentially in- terested are made parties to the suit, even though some of them are not within the jurisdiction of the court. Russell V. Clark, U. S. (7 Cranch), 169, 3 L. Ed. 371; Shields v. Barrows, 17 How. (U. S.) 113, 15 L. Ed. 158; Young V. Cushing, 4 Biss. (U.S.) 456; Anthony V. Shannon, 8 Ark. (3 Eng.) 52. But in Carey v. Hoxey, 11 Ga. 645, 653, it was held that where the parties are so numerous that it is impossible to join them all, the court will make such a decree as it can. Hopkins v. Roseclare Lead Co., 73 111. 373. But in Kentucky it was held that the court of equity will not render a de- cree even in an amicable suit where there is a want of indispensable parties. Grider v. Payne, 39 Ky. (9 Dana), 188. § 32 T.J THE DECEEE. 4i3 cases where the complainant has not made proper parties to his bill, or where, the proper parties having been made to the bill, the complainant has not taken the necessary steps to bring them before the court." The decree should conform to the allegations and prayer of the bill. As to the extent of the decree it is necessarily limited by the allegations in the bill of complaint and by the prayer of the bill, but if a general prayer for relief is added to the bill, then, as we have seen, the court is only limited by the case made, and may render such a decree as equity and good conscience demands, having in view and being limited only by the allegations contained in the pleadings.' And the court will not render a final decree until the cause is at issue as to all the parties except in a case where the issue has been waived or there has been default for want of appearance of the defendant and the bill is taken as confessed. And it would be error to render a final decree in a suit at issue without a hearing and submission of the cause. ^ It has been held to be the better practice to recite in the de- cree that the case has regularly matured for hearing, " but it is not error to enter a decree in the cause not showing this, if the cause was in fact matured for hearing; " and further, " that it was not necessary to state in a decree in chancery that all the preliminary steps toward maturing the cause were taken, iNudd V. Powers, 136 Mass. 273 Cushman v. Bontield, 139 111. 319 Dayton v. Dayton, 68 Mich. 437 Mitchell V. Moore, 9.'5 U. S. 587 fore it has been held to be improper to hear and determine the cause and render a decree upon the merits until the case is fully at issue as to Mackay v. Smith, 27 "Wash. 443, 67 all the parties, unless the issues have Pac. 982; Tenn. Ice Co. v. Raine, 107 been waived and the bill taken as Tenn. 151, 67 S. W. 39; Flanders v. confessed as to them. And so it has Chamberlain, 24 Mich. 305; Hill v. been held that a decree rendered Phelps, 41 C. C. A. 569, 101 Fed. 650; without an answer, it not appearing Cliiinin V. Raugh, 88 III. App. 371; that the bill was taken as confessed, Freeman v. Pullen, 130 Ala 653, 31 should be set aside on a bill of re- So. 451; McClung v. Colwell, 107 view for apparent error. Braxton v. Tenn. 592, 64 S. W. 890; Evans v. Lee, 4 Hen. & M.(Va.) 376; Tedder v. Kelly, 49 W. Va. 181, 38 S. E. 497. Stiles, 16 Ga. 1. And in Groce v. 2 Wilson V. Spring, 64 111. 17; Ted- Field, 13 Ga. 34, it was held to be in- der V. Stiles, 16 Ga. 1; Hurtt v. Crane, dispensable to a decree against a de- 36 Md. 29; Blair v. Reading, 96 111. fendant not answering that the bill 130; Rose v. Woodruff, 4 Johns. Ch. as to him should have been taken (N. Y.) 547. It is essential that the pro confesso. Anthony v. Shannon, court should hear and determine all 8 Ark. 53; Hurtt v. Crane, 36 Md. 39. of the issues in the case, and there- 444 THE DECREE. [§ 327. it being intended, where the cause was set for hearing, that it was regularly done, unless the party attempting to impugn the decree shows the contrary."^ But where the decree is a con- sent decree, it is not in a strict sense a "judicial sentence," but is rather in the nature of a contract or stipulation by the parties, and therefore it is not necessarily confined to the issues made by the pleadings, if it is within the general scope •of the case alleged and the jurisdiction of the court. If the decree should contain provisions outside of the issues raised in the pleadings it would not be void. In Pacific Ry. Co. v. Ketcham ^ the court say : " Parties to a suit have the right to agree to anything they please in refer- ence to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement, if it comes within the general scope of the case made by the pleadings." And further held that the parties having agreed, " it does not lie with them to complain of what the court has done to give effect to their agreement." But the court will not generallj' make a decree by consent where an infant is a party to the cause and his interests are concerned in the de- cree, without taking testimony or referring the matter to a master to inquire whether it will be for the benefit of the infant; but it has been held that when once a decree is pro- nounced without that previous step, the infant will be bound by it.^ If the decree be taken pro confesso, either for want of the appearance of the defendant or his default for failure to de- 1 Riggs V. Lookwood, 13 W. Va. plaint is to inform the defendant of 133,139. the nature of the plaintiff's case. It 2101X1.8.289,297. In Fletcher v. is for his protection that it is re- Holmes, 25 Ind. 458, 463, the court quired. If he wishes to waive it, or said: "We can conceive of no rea- agrees to the granting of greater re- son why a judgment entered by lief than could otherwise be given agreement, by a court of general under its averments, without amend- jurisdiction, having power in a ment, and such relief is given by his proper case to render such a judg- consent, we think that the judgment ment, and having the parties before is not even erroneous, much less it, should not bind those by whose void, as to him." Foster v. Foster, agreement it is entered, notwith- 126 Ala. 257, 28 So. 624; Owens v. standing the pleadings would not, BarroU, 88 Md. 204, 40 Atl. 880. in a contested case, authorize such a 3 1 Barb. Ch. Pr. 873. judgment. The object of a com- § 327.] THE DECREE. 445 mur, plead or answer, it is as binding and conclusive as any decree rendered in the most solemn manner. Formerly, such a proceeding as taking a bill as confessed was not known; for by the practice of the equity court it was absolutely necessary, in order to give to the court jurisdiction of the subject-matter, to compel the defendant to appear and answer; but that is no longer necessary. As we have seen, the court may proceed without an appearance of the defendant; or if he has appeared and failed to properly answer or defend the bill, a decree may be taken against him. And so in such cases it is not requisite to a decree that the parties defendant appear in the cause, hav- ing been regularly served with process ;i but it is generally conceded under such circumstances that the proceedings of the court must be regular in every respect, especially as giving to the court jurisdiction of the cause and the parties. For irregu- larity appearing in the proceedings of the cause, courts will set aside a decree pro covfesso and allow the defendant to answer the bill and defend the case. There must be due service of process upon the parties defendant, and sufficient time must elapse after service of process before entering the default of the defendant, and should the proceedings be defective in this respect the decree would be set aside upon the failure of the de- fendant to appear, or, having appeared, to demur, plead or answer. A preliminary order taking the bill as confessed under the English practice, and that followed in many of the states, is required before a final decree ^ro covfesso can be rendered. In some of the states such an order is regarded as an indispensable prerequisite to a decree. In Georgia it was held to be reversible error where a decree had been taken without an order jcra covfesso, but under the code practice this is no longer required.^ But where it appeared to the satisfaction of the court that judgment^ro oonfesso had been duly and properly taken against the adult defendants in the cause, the court said : " This sufficiently shows that, in fact, an order pro confesso had been taken, and warrants the belief that the failure to enter it was clerical misprision." ' 1 Thomson V. Wooster, 114 U.S. Ill, 2 Bennett v. Brown, 56 Ga. 316; citing Ogilvie v. Heme, 13 Ves. Jr. Miller v. Wilkins, 79 Ga. 675. 563; Book v. Bock, 24 W. Va. 586; ^Cole v. JohnsoD, 53 Miss. 94 Hunter v. Kennedy, 30 W. Va. 343. 446 THE DECREE. [§ 327. In New York by chancery rule the plaintiff is required, on entering an order^?'o confesso, to file an affidavit showing the non-perforraance of the defendant.' In Michigan, where the ISTew York practice has generally been followed, it was held that although good practice re- quired the filing of an affidavit of regularity, its omission was not error. The ovAer j)ro confesso is entered of course and is an interlocutory order.^ In these cases, as in all equitable proceedings, the court of chancery aims to do that which will be equitable and just, and to arrive at the merits of the cause, and there is no doubt a large discretion in the chancellor which will be exercised to that end. The principle of equity that it will retain jurisdic- tion at all times when once acquired, and give such relief as will finally and fullj'^ dispose of the controversy, obtains in the matter of rendering a decree. And so where money has been illegally obtained, or where an amount of money in justice and equity ought to be paid to either party, the court of equity will not hesitate to make a decree even to the extent of the payment of damages.' And where it appeared that the de- fendants had obtained from the corporate funds of a city an amount of money upon an alleged contract to furnish an elec- tric plant for the cit}', the court finding that the contract was void and enjoining any further payment thereunder, there being no dispute as to the amount of money which the city had already paid, it was held that the court should have re- quired the electric light company to account for the money it iHoxie V. Scott, Clarke Ch. 457; venienoe of the judge only. It re- Nott V. Hill, 6 Paige Ch. (N. Y.) 9. quires simply that evidence should ^ Low V. Mills, 61 Mich. 35. In be furnished either by affidavit or Johnson v. Johnson, Walk. Ch. some other form of the regularity of (Mich.) 309, it vras held that vrhere the proceedings, the order pro confesso was entered In Smith v. Saginaw City Bank, two days before the expiration of Harr. Ch. (Mich.) 426, the Michigan time allowed to answer, it was pre- coui't held that where the defendant mature, but was only a technicality presents an answer which shows a which should be objected to at defense after the entering of an order the first opportunity. In Ireland v. pro confesso, and an excuse is shown Woolman. 15 Mich. 253, it was held for the default, the court will per- that the afiSdavit of regularity mit him to file the answer on terras, which is required previous to taking 3 Xate v. Field, 56 N. J. Ch. 35, 37 a bill as confessed is for the con- Atl. 44. § 32S.] THE DECEEE. 447 had so received and ordered it to refund the same with inter- est into the city treasury; that this was necessary in order to dispose of the whole controversy.' § 328. The frame of the decree.— While the decree in equity corresponds to the judgment at law, it is not so formal, but is necessarily flexible and elastic, as it must conform to the object and subject-matter of the bill in the particular case. By common consent, however, a decree in equity consists of three and sometimes four parts, or subdivisions. (1) The cap- tion; (2) the recitals; (3) the declaratory part (if required), and (4) the ordering part or mandatory clause. (1) The caption. The decree should begin by stating the title of the court and cause, the place of holding the court, the date at which the decree is pronounced, and the chancellor or judge who is presiding. In the title of the cause the parties should have the same designation as in the bill of complaint. (2) The recitals. In this part of the decree it was formerly the rule in the English chancery court to set out the pleadings in the cause, the evidence and all former proceedings, but this practice no longer exists, and now at most the pleadings are merely named and the fact stated that the proofs have been taken and are considered.^ 1 George v. Electric Lt. Co., 105 ter's report, or in- depositions taken Mich. 1, 5; Riclile v. Dow, 39 Mioli. as tiie law requires, or in exhibits, or 91 ; Chase v. Boughton, 93 Mich. 285, made a part of the record by oertifi- 387; In re Axtell, 95 Mich. 244; Zahn cate of evidence, Updike v. Parker, V. McMillin, 198 Pa. St. 20, 47 Atl. 976. 11 111. App. 856. And wliere the de- 2 Durham v. Mulkey, 59 111. 91; cree especially found the facts on Mason v. Daly, 117 Mass. 403; Judge which it was based, it was held not V. Booge, 47 Mo. 544. But there seems to be invalidated by the omission of to be in some of the states a rule of the evidence from the record. Ax- practice, or statutes, making it nee- tell v. Pulsifer, 155 111. 141, 39 N. E. essary to in some way preserve the 615; Campbell v. Ayers, 6 Iowa, 339; facts, and if they are not preserved Green v. Breckinridge, 20 Ky. (4 T. in a way to make thera a record in B. Mon.) 541. And where a decree the cause, then the decree must state appears to be ba.=ied upon depositions generally the facts upon which it is which were taken and filed in the based. In Bonneli v. Lewis, 3 111. App. presence of all the parties, but omits 283, it was said that the facts upon to refer to such depositions, it was •which the decree is based must ap- held to be a clerical mistake and pear somewhere in the record; that it that the cause should have been con- was not essentially necessary that sidered as having been heard upon they should be stated in the decree them as well as other proofs. Day v. if they were contained in the mas- Hale, 33 Grat, (Va.) 146. 44:8 THE DECEKE. [§ 328^ The reason for this is apparent. All the pleadings and all the proceedings in the cause, together with the proofs, are of record, and may be referred to at any time; therefore it would be useless to embody them in the decree. The recital may be as follows : " This cause having come on to be heard upon the bill of complaint herein, the answer thereto, the replication of the complainant to such answer, and the proofs taken in said cause (or the proofs taken in open court, as the case may be), and having been argued by counsel for the respective parties, and the court having duly considered the same, it is ordered," etc. In the United States court much more brevity is practiced. It is provided by rule in that court that: " In drawing up de- crees and orders, neither the bill, nor answer, nor other plead- ings, nor any part thereof, nor the report of any master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in sub- stance, as follows: 'This cause came on to be heard (or to be further heard, as the case may be) at this term, and was ar- gued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, namely.' " [Here insert the decree or order.] ' In Dexter v. Arnold, 5 Mason (U. of examining all errors of law, the S.), 303, 311, Judge Story, in discuss- bill, answer and other proceedings ing the subject upon a petition for are, in our practice, as much a part leave to file a bill of review, says: of the record before the court as the "If, therefore, the decree does not decree itself ; for it is only by a corn- contain a statement of the material parison with the former that the cor- facts on which the decree proceeds, rectness of the latter can be ascer- it is plain that there can be no relief tained."' bj' a bill of review, but only by an In Clapp v. Thaxter, 7 Gray (Mass.), appeal to some superior tribunal. It 384, 387, it was said: "Inthiscoun- is on this account that in England try it is not ordinarily the practice decrees are usually drawn up by the to recite in the decree the bill, an- special statement of, or reference to, swer or pleadings, but these, with the material grounds of fact for the the decree, constitute what may be decree. In the courts of the United considered the record of the cause." States the decrees are usually gen- But in Keiffer v. Barney, 31 Ala. 192, eral. In England the decree embodies it was held that "a decree pro con- the substance of the bill, pleadings fesso against a non-resident must and answers. In the courts of the state the facts necessary to show United States the decree usually that publication has been made contains a mere reference to the an- agreeably to the rules of practice." tecedent proceedings without em- :: Daul. Ch. PI. & Pr. (4th ed.) 1104. bodying them. But for the purpose i U. S. Eq. Rule 86. In Kentucky- § 328.] THE DEOEEE. 4-i9 (3) Tlie declaratory jpart. "Where, among other things, the object of the suit is to obtain a declaration of the rights of the parties as to any matter in controversy, the decree should con- tain such a declaration as a preface to the ordering part of the decree. The reasons for the decree are sometimes declared in this clause, but no declaration of rights can in any way be binding upon, or affect the rights of persons not made parties to the suit, except such rights or titles in the thing or property involved as they may subsequently obtain from the parties brought into the case. Nor will the rights or interests of parties who were not served with process, or otherwise brought within the jurisdiction of tbe court in the particular action, be affected. This clause of a decree is not generally used. (4) The ordering part or mandatory clause. This is a very important part of the decree and should be carefully and clearly set forth. In this part the specific directions of the court are given as to the matter in controversy. There could be no fixed or settled form laid down as to this clause; it must necessarily be different in each case according to the questions involved. It has been said that " nothing is more elastic and less arbitrary than this part of the decree in equity. The directions to the different parties may be separate, reciprocal, direct or inverted, as long as they are not inconsistent. If there be several plaintiffs suing jointly, the decree may be joint or several, in conformity with their respective rights, as finally determined ; and if a number of defendants, a single direction may be given to all, or a separate direction, or even a separate decree against each." ' It may be said, however, that the decree must order that which is to be done with sufficient certainty to be a guide to the persons affected by it, and so as to be clearly understood by them. If a specific act is to be performed, as the execution of a deed or other document, the time when it is to be done it was held that a decree should ing the decree should appear. Bar- show upon its face what the court clay v. Brown, 7 Paige Ch. (N. Y.) decided. Honore v. Colmesuil, 24 245. Ky. (1 J. J. Marsh.) 506. The recitals » 1 Foster's Fed. Pr. (3d ed.) 714, should not be argumentative; they citing Lingan v. Henderson, 1 Bland should merely state the conclusions (Md.), 236, 275; Hodges v. MuUikin, 1 of law and fact. Day v. Dunham, 2 Bland (Md.), 503, 507; Elliott v. Pell, Johns. Ch. 182. The time of enter- 1 Paige Ch. (N. Y.) 363. 39 4-50 THE DECREE. [§ 329. should be specifically stated; if for an accounting, the time from which the account is to be stated.^ The ordering or mandatory clause usually commences as fol- lows: "It is therefore ordered, adjudged and decreed that," etc. Then follows the direction or order of the court as found and determined at the hearing. § 329. Drawing and settling the decree. — The case having been heard, the judge or chancellor announces his decision, and the party in whose favor the decision is given is expected to draft a decree based upon the opinion or decision of the court. If the solicitor for the party in whose favor the cause is decided fails to draft and present a decree, any other inter- ested party may do so; but usually it is drawn by the solicitor of the party in whose favor the cause is decided.^ The usual and proper practice is to make a copy of the proposed decree and attach it to a notice of the time and place when it will be settled by the judge or chancellor who heard the cause, and serve this copy and notice upon the opposite solicitor. As to the time of notice for settling the decrees the practice differs in different jurisdictions. There should be at least a reason- 1 United States Equity Rule 73 is interest. Morrison v. Smith, 130 111. as follows: "Every decree for an 304, 38 N. E. 241 ; Anderson v. Reed, account of the personal estate of a 11 Iowa, 177: White v. Guthrie, 34 testator or intestate shall contain a Ky. (1 J. J. Marsh.) 503; Clark v. direction to the master to whom it Bell, 34 Ky. (4 Dana), 15: Codwise v. is referred to take the same to in- Taylor, 36 Teun. (4 Sneed), 346. As quire and state to the court what to erroneous description, Thain v. parts, if any, of such personal estate Rudisill, 126 Ind. 373, 36 N. E. 46; are outstanding or undisposed of, Redhead v. Baker, 86 Iowa, 351, 53 unless the court shall otherwise di- N. W. 114. In Maryland it was held reot." And in Illinois, where the that the decree might refer to the decree was uncertain as to the bill for a description of the lands on amount of money to be paid at a which the decree is to operate. Jones specified time, and the precise in- v. Belt, 2 Gill (Md.), 106. debtedness did not seem to be ascer- ^ Hubbell v. Lankenau,"63 Fed. 881 ; tained, the decree was held errone- Rankin v. Barcroft, 114 111. 441, 3 N. ' ous. Frye V. Bank of Illinois, 10 111. E, 97. In Whitney v. Belden, 4 Paige (5 Gil.) 332; Smith v. Trimble, 37 111. (N. Y.), 140, it was held that if the (17 Peck), 152. But a decree for re- party entitled to draw ^he order neg- demption on payment of a stated leots to do so for twenty-four hours sum, with interest at six per cent, after the decision is pronounced, the from a certain date, was held not to other party may apply to the regis- be fatally erroneous because of the ter to draw the order at the expense failure to state the amount of the of the parties applying. § 330.] THE DECREE. 451 able time; in some jurisdictions it is fixed at four days.'- If tlie opposing solicitor has any objections to the decree as drawn or proposed, he should prepare amendments in writing to the same and present them to the court and opposite solicitor at the time noticed for settling the decree, when the court will consider the decree which has been drafted and the proposed amendments and finally determine and settle the same. The court may at this time amend the decree that has been drawn of his own motion, or he may make an entire new draft of a decree. When the decree is finally settled and signed by the judge or the chancellor who heard the cause, it will be filed by the register or the clerk of the court, as he is sometimes called, in his oflfice. § 330. A decree after the death of the party. — As has al- ready been stated, the death of one of the parties in a chan- cery cause operates as an abatement of the- suit, or as a sus- pension of all proceedings in it, for the reason, as we have seen, that the rights and interests of the deceased party must be represented in the cause, and until some one is properly au- thorized to represent such interests the cause cannot proceed.' But where the cause has been heard and determined by the court, and the decree has been drafted, settled and signed by the chancellor, there can be no reason for abating the cause, for all of the proceedings before the court in which the interest of the party could be afl'ected have been heard and are at an end. And where a cause was fully heard and the court at a subsequent term pronounced his decision and was ready to find and settle the decree, but it was then ascertained that between the time the cause was submitted and the time of pronouncing the decision the defendant had died, it was held that to enter a decree incorporating an order in it requiring it to be entered nunc pro tunc as of the day when the cause was heard was strictly regular.' In a divorce case where the husband died after the case was 1 Detroit, etc. Co. v. Eenz, 33 Mich. Campbell v. Mesier, 4 Johns, Ch. 398, 299; 2 Danl. Ch. PI. & Pr. (4th (N. Y.) 334; Wood v. Keyes, 6 Paige ed.) 1008: 1 Barb. Ch. Pr. 340. (N. Y.), 478; Kelley v. Riley, 106 Mass. 2 Ante, % 271. 339; Tapley v. Goodsell, 122 Mass. 176 ^Gunderman V.Gunnison, 39 Mich. Mitchell v. Overman, 103 U. S. 62 313; Davies v. Davies, 9 Ves. Jr. 461; Downer v. Howard, 44 Wis. 82 Bank v. Weisiger, 2 Pet. (U. S.) 331; Francis v. Francis, 31 Grat. (Va.) 288. 452 THE DECREE. [§ 331. argued, it was held that while the death of the party terminated the marriage relation, "if nothing more had been involved in the judgment below, it would have abated the writ of error because the whole subject of litigation would have been at an end, and no power can dissolve a marriage which has already been dissolved by act of God." But it appearing that the judgment rendered below after appearance and answer of the husband was not only for a divorce but for a large sum of alimony and for costs, the wife's right to such alimony and costs, " though depending on the same ground as the divorce, was not impaired by the husband's death," and should not be affected by the delay in rendering judgment; the court there- fore ordered that the rights of the party might be preserved by entering a judgment nunc pro tunc as of the day when the cause was argued.' § 331. Decrees pro confesso. — "When the cause stands upon an order ^TO confesso it must be brought on for hearing the same as other cases, and good practice requires that an affirm- ative showing should be made that the defendant has not ap- peared in the cause, if the default is for that reason, and if the order pro confesso appears to be irregular, the subsequent steps in the case cannot be sustained.^ At the hearing of the cause the court will hear the pleadings and the proofs and make a decree as in other cases ;^ and the decree having once been pronounced and settled, cannot be impeached collaterally ex- cept on a bill of review. It is said that the court will be less inclined to open a decree pro confesso than to set aside one ob- tained on default at the hearing.'' As we have seen, the de- fendant who has appeared in the cause is entitled to notice of all the proceedings, and a decree taken against him ex parte without notice will be set aside. The court, in Detroit, etc. Ins. Co. v. Rem^ say : " Good practice requires that a defendant who has appeared in the cause should have such notice of the entry of the decree as will afford him an opportunity to attend and be heard upon the 1 Bell V. Bell, 181 U. S. 175, 178. ^ Hart v. Lindsay, Walk. Ch. (Mich.). 2 Eaton V. Eaton, 33 Mich. 305. 72. 3 Geary v. Sheridan, 8 Ves. Jr. 191; 5 33 Mich. 398; Watson v. Hinch- 1 Barb. Ch. Pr. 369; Wooster v. man, 41 Mich. 716. Woodhull, 1 Johns. Ch. (N. Y.) 541. § 332.] THE DECREE. 453 settlement thereof." And it has been held without dissent that " no decree will be entered against an infant on a bill taken against him as confessed, or on the answer of his guard- ian ad litem admitting the facts stated in the bill. The an- swer in such case is regarded as a pleading merely, and cannot be used as evidence for, or against, the infant against whom the complainant must prove his case." ' § 332. Enrolment of decree. — Until the decree is enrolled, it does not, strictly speaking, become a record of the court. The court may treat it, after it has been duly passed and en- tered, as a decree in the consideration of other proceedings, but to give it the stability and nature of a judgment and record of the court in the cause that will be considered as settled, it must be enrolled. And it has been said that until the decree is enrolled, although in its nature it is a final decree, it is con- sidered as interlocutory and cannot be pleaded in bar to an- other suit for the same matter.^ Before it is enrolled it is sub- ject to an order for rehearing, or to modification by the court if properly applied for, but once enrolled it becomes a record of the court and is not subject to change except upon bill for review. And the enrolment cannot be prevented by the op- posite party except by taking the necessary proceedings for a rehearing. The manner of enrolment, and the time when the decree is deemed to be enrolled, differs in different jurisdictions. For- merly in the English chancery court the solicitor of the party desiring an enrolment prepared what was known as a "docket of enrolment," which stated the filing of the bill or petition, or service of the notice of motion with the names of the par- ties thereto, setting out the prayer of the bill, or the object of the notice of motion, the filing of the several answers and all the other pleadings and proceedings, and giving a short synopsis of the decree, setting out in substance the order made, and the orders that were made or taken before the date of the 1 Thayer v. Lane, Walk. Ch. (Mich.) " It is well settled that no decree 200, 803; Bulkey v. Van Wick, 5 can be made against an infant vvith- PaigeCh. 536; Stephenson V. Stephen- out full proofs in all cases, and no son, 6 Paige Ch. 353; Chandler v. one can give away or lose his McKinney, 6 Mich. 217; Carrell v. rights." Potter, 23 Mich. 377. In Ballantine 2 2 Danl. Ch. PI. & Pr. 1019; Clapp V. Clark, 88 Mich. 895, the court say: v. Thaxter, 7 Gray (Mass.), 385, 386. 45i THE DECEBE. [§ 332. decree and leading to it; this was taken with the originals or office copies of the orders and proceedings in the cause recited in the docket of enrolment to the clerk of records and writs^ who inspected the docket, and if correct indorsed thereon his certificate that the statement of the pleadings, decrees, orders, reports, certificates and the proceedings therein contained were correct, and until this certificate was obtained it was not entitled to enrolment. This practice, however, has become very much simplified by statutes and by the rules and prac- tice of the several courts. In some of the states the enrolment is made by simply attaching all of the pleadings, petitions, or- ders and files in the cause together in the order in which they were tiled or obtained, and attaching to this a certificate of the register that they are the files and records in the cause, all of which are filed in the office of the register of the court;' while in other courts the decree is considered enrolled after it is signed b}' the chancellor and filed by the register, and the term of the court in which it was made has elapsed.^ And in other jurisdictions it is considered enrolled when it is sub- mitted to the chancellor and signed and placed on the records of the court.^ In the United States court it is provided that: " No rehear- ing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an ap- peal lies to the supreme court. But if no appeal lies, the peti- tion may be admitted at any time before the end of the next term of the court, in the discretion of the court." * This rule 1 Low V. Mills, 61 Mich.- 35, 27 N. 2Hollingsworth v. McDonald, 2 W. 877; Miokle v. Maxfield, 43 Mich. Har. & J. (Md.) 230, 3 Am. Dec. 545; 304. But decrees of the supreme Burch v. Scott, 1 Gill & J. (Md.) 393. court need not be enrolled; they are And in Nowland v. Glenn, 3 Md. Oh. made only by an entry on the jour- 368, it was held that the decree is nal. Ryerson v. Eldred, 18 Mich. 490. not considered enrolled until the It is provided by statute that if no close of the term at which it was appeal be taken from the final de- passed, and that that does not close cree within a certain time, the until the commencement of the en- papers and proceedings in the cause suing term. Tabler v. Castle, 12 Md. shall beattached togetherand signed 144. and filed by the register, and this sgagory v. Bayless, 31 Miss. (13 shall be deemed an enrolment. John- Sm. & M.) 153. son V. Everett, 9 Paige Ch. (N. Y.) < U. S. Eq. Rule 88. 636; Clapper v. House, 6 Paige, 149. § 333.] THE DECEEE. 455 seems in effect to take the place of the usual enrolment, and it would seem that after the term at which the final decree of the court is entered and recorded, if the case is appealable to the supreme court, and if not appealable after the end of the next term of the court, the decree will be considered as en- rolled and not subject to change or rehearing by order of the court granting it. § 333. Necessity of enrolment. — The necessity of the en- rolment of the decree seems to be for the purpose of making it a record of the court and removing it from a liability to be changed upon a rehearing by order of the court which made it. Until such enrolment has been made, or the time has elapsed when it is considered as a record of the court, the cause cannot be considered in every respect finally settled and the decree operative and final.' And it has been held that the decree must be enrolled before a deed can be executed on a sale ordered by it; and where the bill is dismissed with costs, the decree must be enrolled before an execution can issue under it.^ From the time of its enrolment, or from the time when by rule of court or statute it becomes a record of the court, the decree may be said to be in force and capable of being executed. It has been said that " the advantage, there- fore, to be obtained by the enrolment of a decree is to pre- vent its being the subject of a rehearing, and to enable the party benefited by it to plead it in bar to any new bill which may be filed against him, for any of the matters embraced by the bill upon which the decree is founded." ' Any clerical mistakes or errors which may be said to arise from accidental slip or omission raa}'^ be corrected at any time before enrol- ment on motion or petition and without applying for a re- hearing.* 1 Hall V. Hudson, 20 Ala. 384; Hud- Thompson v. Goulding, 5 Allen son V. Hudson, 20 Ala. 364, 56 Am. (Mass.), 83. United States Equity Dec. 300. Rule 85 provides: "Clerical mistakes 2 Minthorne's Ex'rs v. Tompkins' in decrees or decretal orders, or er- Ex'rs, 3 Paige (N. Y.), 103. rors arising from any incidental slip 3 3 Danl. Ch. PI. & Pr. (4th ed.) 1019; or omission, may, at any time before Neafie v. Neafie, 7 Johns. Ch. 1; an actual enrolment thereof, be Pearse v. Dobinson, L. R. (Eng.) 1 Eq. corrected by order of the court or a 341. judge thereof, upon petition, with- 4 3Danl. Ch. PI. &Pr. (4thed.)1028; out the form or expense of a re- Turner V. Hodgson, 9 Beav. 265; hearing." 456 THE DECEEB. [§ 334:. § 334:. Some changes the court is permitted to make.— By the enrolment of the decree or the consummation of that which the practice of the courts regards of like force and im- portance, and operating as an enrolment, the cause is consid- ered as finally determined. This enrolment, it is said, " is a permanent memorial of the rights of the parties as adjudicated." But it has been held that further orders which merely give di- rections for carrying out or executing the decree, as the chang- ing of the time or terras of a sale of property necessary to carry a decree of partition into effect, may be obtained on mo- tion in the court which granted the decree. And where a party sought to extend the time of payment of alimony granted in a decree of divorce, it was held that as it was merely a modi- fication as to the time of enforcement, it might be granted, but whenever the modification of the substance of the decree is sought, the court which granted the decree has no authority to so modify it. The court say : " While the court has not, after enrolment, power to amend the decree without a re- hearing, it retains the power to modify by a subsequent order the time of its enforcement. . . . We do not, however, find that the original decree required complainant to furnish an ab- stract, and think that this requirement was a modification in substance of the decree."' In New Jersey the court seems to have gone still farther and held that on a petition to amend the decree after enrol- ment, where it appeared that the amendment was necessary to give full expression to the judgment of the court, and is mat- ter which would have been incorporated in the decree when rendered if the attention of the court had been called to it, the court will grant an order allowing the decree to be amended so as to express its full judgment. The court say: " Respecting such an amendment, the rule recognized by this court is that, while the court will not vary or alter an enrolled decree in a material point without a bill of review or a rehear- ing, it will, upon petition, amend its enrolled decree when the amendment is necessary to give full expression to its judgment, and is matter which would, without doubt, have been incor- iCadotte v. Cadotte, 120 Mich. 667, 670. § 335. J THE DEOEEE. 457 porated in the decree when made, if attention had been called to it." 1 But while the rule seems to be that as to mere matters of direction or immaterial mistakes or omissions, the decree may be corrected by the court which granted it, the general rule is conceded to be that the decree after enrolment cannot on motion or petition be altered, set aside, vacated or modified b}' the court allowing it, but is conclusive until reversed on appeal or set aside on a bill of review. The substance of the decree cannot be changed; the matters and questions deter- mined by it must remain after it is enrolled until they are set aside by appeal or bill of review.^ § 335. Reopening the cause — Rehearing. — After the cause has been heard and the decree has been settled and entered and before it has been enrolled, or has by the rules and practice of the court become a record in the cause, it may, under certain circumstances, be reopened, but this can only be done by con- sent of the parties or upon an application for a rehearing. This practice is not limited to decrees granted upon the hearing of the cause upon its merits, but is also applicable where the decree has been obtained upon a demurrer or a plea, and in some cases where the order of the court is for further direc- tions as to the execution of the decree, or upon exceptions to the report of a commissioner or master. This proceeding is analogous to a motion for a new trial in a law case, but when the cause is once enrolled, or by reason of the rules and prac- tice of the court has become a record in the cause, it is not subject to this proceeding, and the decree can only be opened and rectified upon filing a bill of review. It is generally held that a court has control of its own judgments and decrees be- fore enrolment, and where a decree has been improperly ob- tained there is an inherent power in the court which rendered it to open the decree for good cause shown.' 1 Lynde v. Lynde, 54 N. J. Eq. 473, ' Dinsmore v. Adams, 48 How. Pr. 3oAtl. 641; Dorsheimer v. Rorback, (N. Y.) 274; Gibson v. Crehore, 23 34 N. J. Eq. 33; Jarman v. Wiswall, Mass. (5 Pick.) 146; Smith v. Sneerl, 34 N. J. Eq. 68; Jones v. Davenport, 3 Tenn. (Cooke), 190. And where the 45 N. J. Eq. 83, 17 Atl. 570. consent decree had been entered and ^Schwartz V. Castello, 11 App. D. C. the party knew what the decree 553. was, and there were no misrepresen- 458 THE DECREE. [§ 336. In Brown v. Aspden'^ the court say: "By the established rules of chancery practice, a rehearing, in the sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be applied for before the enrolment." But a decree taken by consent of the parties can only be reopened by the same authority — that is to say, upon consent of the parties.^ § 336. The practice and reasons for granting. — The prac- tice in obtaining a rehearing in a chancery cause after a decree and before its enrolment is similar to the practice for obtain- ing a new trial in law cases, and may be in some respects for the same causes. It is usually presented to the court by a petition for a rehearing, and may be for newly-discovered evidence or errors of law which appear upon the record, and it has been said that " all the limitations which control courts in actions at law in considering allegations of newl3'-discovered evidence and of errors at law apply to applications for rehear- ing in such cases." ^ The petition should be filed with the register or clerk 0%, the court, and in some jurisdictions an order is obtained from the court upon the defendant to show cause whj' the prayer of the petition should not be granted. This is the usual practice in the United States courts. The defendant may answer the petition, and upon the petition and answer the application is heard. In this proceeding it must be borne in mind that " a rehearing can only take place for the purpose of altering the decree upon grounds which existed at the time when the decree was pronounced."* It therefore follows that where the grievance is consequent upon circum- stances which have transpired since the rendering of the de- tations made in obtaining it, it was fraud. Rollins v. Henry, 78 N. C. 342. held that a rehearing was properly And in Watson v. Smith, 7 Oreg. 448, denied. Hodges v. McDuff, 76 Mich, it was held that where the consent 305. of one of the parties was obtained, 1 14 How. (U. S.) 36; Giant Powder the party not understanding its Co. V. Cal. etc. Works, 5 Fed. 197. effect becaase of his weakness of 2 White V. Walker, 5 Fla. 478. In mind on account of old age, the Hammond v. Place, Harr. Ch. (Mich.) court will open the decree to protect 438, it was held that a rule entered his rights. by consent would not be vacated if 'Qjant Powder Co. v. Cal. etc. obtained without fraud or misrepre- Works, 5 Fed. 197, 209. sentation; it may, however, be im- *1 Barb. Ch. Pr. (2d ed.)354 peached by privies in estate for § 333.] THE DECREE. 45i> cree, a rehearing will not be permitted, for such facts had no existence at the time of the hearing and were not put in issue by the pleadings in the cause, and therefore could not have been brought to the attention of the court. The proper course in such case is to obtain leave to file a supplemental bill in the nature of a bill of review. The petition for rehearing upon newly-discovered evidence should show that the testimony is material and not merely cumulative, and that with reasonable and ordinary care, atten- tion and diligence it could not have been procured at the hear- ing of the cause, and that it has been discovered since the hear- ing, submission and decision of the case, and the testimony must be such that in the opinion of the court, if it had been produced, it would probably have materially changed the de- cree granted, to the benefit or advantage of the petitioner. And it has been said that in determining whether such care, atten- tion and diligence was exercised, the physical and pecuniary condition of the party will be considered, and also the infor- mation or knowledge which the petitioner then had of the es- sential facts or defense, and in the light thereof the difficulties likely to be encountered in tracing up and establishing the same by competent testimony.' For it is a general rule that a rehearing will not be granted for newly-discovered evidence where by reasonable diligence the evidence could have been obtained on the hearing.^ When the rehearing is asked for upon the ground that there was error of law, it must appear by the petition and by the 1 Detroit Savings Bank v. Trues- a rehearing, that there have been dis- dail, 38 Mich. 444. covered new facts or precedents, or -'In Bently v, Phelps, 3 W. & M. that there has been some specific (U. S. C. C) 403, 406, it vpas said: mistake. And wliere the decree vs'as " Generally as much must be shown granted upon the testimony of the to justify a rehearing in equity as is complainant alone, and a rehearing necessary to obtain a new trial at was asked upon a showing of newly- common law." Doggett v. Emerson, discovered evidence that the oom- 1 W. & M. (U. S. C. C.) 1. And in Tufts plainant had made statements con- V. Tufts, 3 W. & M. (U. S. C. C.) 426, tradicting his evidence in material it was held that a rehearing will points in such a way as to be decisive not be granted merely on certificate of the case, it was held the rehearing of counsel stating that there was er- should be granted. Sheldon v. Hawes, ror in law on a particular point; that 15 Mich. 519. it must be shown, in order to justify 460 THE DECREE. [§ 337. ■evidence adduced that the error was not made as to some ques- tion that was presented and argued by counsel and considered by the court at the final hearing, for a rehearing will not be granted simply to allow a reproduction of old arguments Avhich have already been considered; advantage of errors as to matters which have already been presented and considered can only be taken, and the questions decided at the hearing reconsidered, upon an appeal.^ § 337. Reopening decrees taken pro confesso and permit- ting defense. — The reasons for setting aside a decree taken pro confesso and allowing the defendant to be heard in his de- fense include the reasons already given for a rehearing and other reasons to be discussed. In this proceeding the peti- tioner is generally limited to decrees that have not been en- rolled, or which have not, by the rules and practice of the court, become records in the cause. It would be difficult to lay down any fixed or settled rules governing the reopening of decrees which have been regularly obtained by default. These cases generally rest in the sound discretion of the court, having in view the promotion of the ends of justice and at the same time the rules of law and practice that have been settled by a long line of well-settled adjudicated cases.^ In Russell v. Waits ' the chancellor said : " No general rule can be laid down by the court to govern it in applications of this kind. Each application must depend, in a great measure, upon its own circumstances and the sound discretion of -the court. A decree regularly obtained against a party by default should not be opened, unless under special circumstances, and then only to promote the ends of justice." And it has been held that a decree pro confesso will not be set aside on mere technical irregularities which do not affect the merits and are 1 Giant Powder Co. v. Cal. etc. depends upon the situation and oir- Works, 5 Fed. 197. cumstanoes of the case." Brewer v. 2 In Low V.Mills, 61 Mich. 35,44, Dodge, 28 Mich. 359; Dunn v. Keegin, the court say: " It is well settled that 3 Scam. (111.) 297; Millspaugh v. Mc- opening a decree, and permitting a Bride, 7 Paige (N. Y.), 512; Wooster v. defendant to come in and defend, is WoodhuU, 1 Johns. Ch. 539. a matter within the sound discretion 3 Walk. Ch. (Mich.) 31; Stradley v. of the court, when applied for within Circuit Judge, 96 Mich. 287, 55 N. W. a reasonable time. Whether it should 807; Mills v. McLeod, 86 Mich. 290, 49 be done by bill of review or petition N. W. 134; Low v. Mills, 61 Mich. 41. § 33Y.] THE DEOEEE. 461 not grounds for setting aside a decree unless complained of at the first opportunity.^ The practice in the state and federal courts, in cases where the order or decree is sought to be changed, altered or set aside after the term at which it was granted is passed, or after en- rolment of the decree, or after it has become a record of the court, is very much in conflict. In the state courts, generally, an order pro confesso, or a decree taken upon such an order^ may be set aside and the defendant permitted to appear and defend where, by his petition and showing, it appears that there has been irregularity in the proceedings, and where to permit it to stand would be permitting great injustice; or upon a proper showing of surprise, mistake or accident; or where the rights and interests of strangers to the record have not been heard or protected.^ In the federal court, however, 1 Johnson v. Johnson, Walk. Ch. (Mich.) 309; Long v. Long, 59 Mich. 296. Nor will a decree be set aside on mere motion. York v. Circuit Judge, 57 Mich. 431 ; Hart v. Lindsay, Walk. Ch. (Mich.) 72. 2 Kelly V. Brooks, 57 Miss. 235; Low V. Mills, 61 Mich. 35. In Strib- ling et ux. v. Hart, 20 Fla. 235, 248, the court say: "There are a number of cases where enrolments are opened upon cause shown to al- low an appeal. 2 Smith's Ch. Pr., sees. 7, 8, 9, 23, 34. As to the power, we are inclined to follow the Ameri- can practice, for there should be some method in cases of defaults arising from unavoidable circum- stances to afford relief even as against an absolute decree. Unless there is some peculiar operation in the rule pronouncing the decree "absolute" after the expiration of the time limited, we think the American authorities show that the court has power to relieve in a proper case. A decree absolute is nothing more than a final decree following a decree nisi causa wlien no cause is shown, and there is no difference, and there is no greater solemnity or inviolability attached to it than to any other final decree. The power, however, is not to be ex- ercised in cases where the decree has been made absolute in the regu- lar course, and where the defendant has been guilty of neglect and has failed to give attention to the pro- cess of the court without the exist- ence of controlling and unavoidable circumstances excusing his delay. The entry of such a decree against a party is not to be regarded as a light matter. Under the rule the setting aside of an order taking the bill for confessed will not be allowed except upon cause shown and affi- davit. We think the remarks of the court of appeals of Maryland (54 Md. 639) upon this subject are eminently proper. The court says the object of the statute (the law authorizing de- crees pro confesso) was to provide a just and reasonably expeditious mode of obviating the delays and difficulties to which complainants were subjected by the neglect of de- fendants and their disobedience of the mandates of the court, and no construction of the statute should be indulged that would either reward 462 THE DECEEE. [§ 337. this matter is regulated by rule of the court to which the fed- eral courts have strenuously adhered, and when the decree of that court has been entered and the term at which it was en- tered has passed, although it be a decree ^ro confesso it is final and beyond the power of the court which rendered it to alter or change it, or set it aside even to allow a defense upon the merits of the cause; and the federal courts have refused to en- tertain a petition for that purpose even where it was shown that great injustice would be the result if the defendant was not allowed to appear and defend the cause. The rule governing in this class of cases is as follows : " When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affi- davit of the defendant." ' In these proceedings the plaintiff is insisting upon the advantage he has obtained because of the default of the defendant; he is asking the court to allow him 01- encourage defendants in their con- produced must show deceit, surprise tumacious neglect of the process of or irregularity in obtaining the judg- the court when duly served upon ment or decree and that the defend- theni. Decrees are not lightly to be ant has acted bona ^de and with rea- disturbed or vacated after enrol- souable diligence." ment, though entered upon default ' U. 8. Eq. Rule 19; Austin v. Riley «f the defendants, and it is only when et al., 55 Fed. 833. In this case may le there are strong and special circum- found a very full discussion upon this stances shown and the conduct of subject and also citation of authori- the party applying is entirely free ties. This was a case where a final from well grounded imputation of decree was entered upon a bill taken laches or mala fides that his applica- pro confesso. The motion to set aside tion will be entertained and the dis- the decree was made after the ex- cretion of the court exercised in his piration of the term at which it be- favor, and the discretion to be exer- came absolute. It was urged that a cised upon such application must be different decree would have been regulated by law and precedent and entered if the facts had been pre- not a mere desire to let in a defense sented by a timely defense, or it was upon the merits. It is a mistake to shown that extreme hardship would conceive that, because a party is in a result. The court held that the prac- court of equity, less weighty reasons tice of the state court will not be will excuse his default when he asks observed in a suit in equity in a fed- to open a decree in equity than is eral court ; that Revised Statutes, sec. necessary to open a judgment by de- 914, does not apply to equity causes, fault at law. In either case the facts and that the federal court has no § 337.] THE DECREE. 4:63 this advantage for the reason that the defendant has not strictl}' followed the rules of practice. While the court, be- cause of this rule, will permit this advantage, it will require that the plaintiff shall have followed the practice and regu- larl}' obtained the decree. As said by Chancellor Hardwicke in a very early case,^ " if there is an irregularity in the proceedings of the plaintiff, and the plaintiff insists upon the strict default of the defendant, as the courts of law say, it is very necessary a person insisting upon the rigor 'should hit the bii'd in the eye ' " — that is to say, the plaintiff will not be permitted himself to-be in fault or irregular in his proceed- ings, but the proceedings in his case must be regular if he would take advantage of the irregular practice and faults of his adversary. Some of the irregularities that have been con- sidered sufficient to set aside a decree p?'o confesso and permit the defendant to come in and defend the case are: for defect- ive service of process, personal or by publication; for defects in the copy of the subpoena served upon the defendant; for failure to serve the rule to answer where that practice obtains; for failure to serve notice of hearing upon the defendant who ■has regularly appeared in the cause; for proceedings against a resident defendant, upon whom personal service might have been obtained, as though he were an absent defendant.^ jurisidction of a motion to set aaide proceeding against him and before s. final decree upon a bill taken as an actual sale to a hona fide pur- confessed which was made after the chaser under the decree, it will be a term at which the decree became matter of course to permit him to absolute. come in and defend, without charg- 1 Floyd V. Nangle, 3 Atk, (Eng.) ing him with any costs. But in a 568, 569. case of mere unintentional irregular- 2 In Jermain v. Langdon, 8 Paige ity, the party who wishes to take ad- Ch. (N. Y.) 41, 43, the court say: vantage of it must apply the first •' There can be no doubt, however, opportunity, unless he can satisfy that it is clearly irregular to proceed the court that he has been deprived against a party, as an absentee, who of some substantial right, either legal has a fixed and notorious residence or equitable, in consequence of such in the state; and who is neither ab- irregularity." sent therefrom nor concealed so that As to defective service of process process cannot be served on him. In being ground for opening a decree such a case, therefore, if the defend- and allowing the defense to be made, ant applies for leave to come in and Welch v. Welch, 16 Ark. 527; Bene- detend the suit, the first opportunity diet v. Auditor- General, 104 Mich, he has after he is informed of the 269, 63 N. W. 364. But in Gould v. 464 THE DECREE. [§ 337, Where the defendant seeks to set aside an order jpro confesso, he should, with his application, exhibit his proposed answer if allowed to defend the cause.^ In Stockton v. Williams'^ the court say: "A regular order to take the bill as confessed will not be set aside upon a simple affidavit of merits, although an excuse is given for the default. In such cases the defendant must either produce the sworn answer which he proposes to put in, so that the court may see that he has merits, or must, in his petition or affidavit, state Castle, 47 Mich. 604, the defendant was held guilty of gross laches and in default in lying by and not mov- ing on his own contention in regard to the defect of the process where he disregarded the subpcena served upon him and permitted the pro- ceedings to go to a decree merely because the copy served did not give the date of the return day, and his motion to set aside the decree was denied. And in Low v. Mills, 61 Mich. 35, where it was insisted that the copy of the subpoena served was not a true copy for the reason that the return day stated in the copy was different from the return day in the original, the court said: "Where the service appears from the return to have been legal and proper, al- though false, it is sufficient to give the court jurisdiction. In this case the service was not wholly void; the original subpcena, which was with- out defect, was exhibited to the de- fendant with the seal of the court impressed thereon." Johnson v. Shep- ard, 35 Mich. 115. In Evarts v. Becker, 8 Paige Ch. (N. Y.) 506, it was held that affidavits and counter-affidavits as to merits were wholly unnecessary; and the court said: "It is a matter of right for them to be let in to make a de- fense." Tripp V. Vincent, 8 Paige Ch. 175, 176. As to defects in the copy of the sub- poena served. In Arden v. Walden, 1 Edw. Ch. (N. Y.) 630, where the copy of the subpoena to appear and answer was blank as to the return day and month, it was held that the service was not sufficient and the . proceedings were set aside. Where by rule the plaintiff was required to serve rule to answer, see Livingston v. Woolsey, 4 Johns. Ch. (N. Y.) 365. For failure to serve notice of hearing, Southern Pac. Ry. Co. V. Temple, 59 Fed. 17; Mix v. Mackie, 2 Edw. Ch. (N. Y.) 426. In Hai-t V. Small, 4 Paige (N. Y.),. 551, 552, the chancellor said: "Where a defendant had appeared by a solic- itor, he was entitled to notice of all subsequent proceedings in the cause, although he had suffered the com- plainant's bill to be taken as con- fessed for want of an answer." And it was held that the decree taken against a defendant ex x^arte who- had made default in not answering without notice on his solicitor of the hearing should be set aside as irreg- ular. iln Pittman v. MoClellan, 55 Miss. 399,305, the court say: "Whenever a defendant seeks to be relieved from a pro confesso, or to amend his pleadings, he ought to exhibit with his application the answer or the amendment; if he does not, he ought to explain why he cannot do so and ask for further time." 2Harr. Ch. (Mich.) 241, 243. § 338.] THE DECEEB. 465 the nature of his defense, and his belief in the truth of the matters constituting such defense, so far at least as to enable the court to see that injustice will probably be done if the order to take the bill as confessed is permitted to stand." § 338. The party moving to reopen the cause and for rehearing must not he guilty of laches.— Equity and good conscience demand that the party moving for a rehearing, or to open the cause and allow a defense in case of decree taken j.'/'o confesso, should proceed promptly and not be guilty of laches, and the fact that he has been diligent in claiming this privilege must appear in his petition. In Johnson v. Johnson ^ the chancellor said : " When either party wishes to set aside the proceedings of 'his adversary for a mere technical irregularity, he must make his application at the first opportunity. He must not lie by, and permit his ad- versary to take step after step in the cause, without so much as notifying him of his error, for the purpose of afterwards having his proceedings set aside. And a defendant who has not caused his appearance to be entered is entitled to no greater indulgence in this respect than one who has appeared." And it has been said that a decree or order will not be set aside after there has been a considerable lapse of time except upon very strong grounds.^ 1 Walk. Ch. (Mich.) 309, 311. Klenn, 30 N. J. Eq. (3 Stew.) 517; 2 1 Johns. Ch. (Md.) 20. And in Benedict v. Thompson, Walk. Ch. Iowa where it was sought to set aside (Mich.) 446; Warner v. Juif, 38 Mich, an order of court rendered at a prior 662. In Cook v. French, 96 Mich. 535, term, it was held that the motion 530, it was held that a purchaser of should have been made at the next land cannot claim immunity as a succeeding term. Keeney v. Lyon, bona fide purchaser from the fact 31 Iowa, 277. In Gibson v. Crehore, of a subsequent order setting aside 23 Mass. (5 Pick.) 146, it was held the decree, for it is his duty to ascer- that the question as to whether there tain at his peril whether the decree had been improper delay and whether was warranted or not. The court leave should have been granted to say: "Theycouldclaimrioimmunity, present the motion depends upon as subsequent purchasers, from the the discretion of the court. And effect of the subsequent order set- in New Hampshire (George v. John- ting the decree aside. Purchasers son, 45 N. H. 456) it was held that buy at their own risk as to the va- generally a court of equity will not lidity of a decree." Citing Eitson v. open an account after six years of Dodge, 33 Mich. 463; McGoren v. delay. Robertson v. Miller, 3 N. J. Avery, 37 Mich. 130. Eq. (3 H. W. Green), 451 ; Embury v. 80 iQQ THE DECREE. [§ 339. § 339. Form and requisites of the application — Filing and serving tlie same and the answer thereto. — As we have seen, the application is generally made by petition to the court which heard the cause. The petitioner in his application should set forth fully and with precision and certainty the reasons for granting a rehearing, and as a general rule the allegations should not be upon information and belief; but it has been held that where the petitioner has no personal knowl- edge of the facts, he may allege them upon information and belief.! ju gm^j^ g^se he should support his petition by attach- ing thereto the affidavits of witnesses who can state positively and upon their own knowledge the facts upon which he de- pends; and further, state that at the hearing the petitioner will rely upon the records and files in the cause and the affi- davits attached to his application, copies of which have been served upon the opposite part3^ If the rehearing is sought upon the ground of error of law the petition should set forth with clearness and certainty the particular errors that are complained of, so that the court may fully understand and the opposite party have notice of the claim of the petitioner in that respect. The errors of law complained of must be such as are apparent upon the record, and arising upon questions not argued at the final hearing. If the rehearing is sought for upon the ground of newly-discov- ered evidence, the petition must show that the evidence is not merely cumulative to that which was presented at the hear- ing,^ but that it is of such a nature that if it had been pre- sented at the hearing it would have changed the result; that it was not known by the petitioner to exist before the hearing, and that with reasonable diligence he could not have discov- ered it. The petition must also state clearly and concisely the nature of the newly-discovered evidence, and if this statement is upon information and belief it would be considered good practice, and the courts would generally require that there be attached to the petition the affidavits of the witnesses who are expected to furnish the proofs at the hearing, if it is granted, verifying the statement in the petition. It should also be al- leged that the decree complained of is inequitable and injuri- 1 Page V. Holmes, eto. Co., 3 Fed. 330. 2 Detroit Savings Bank v. Truesdail, 38 Mioh. 443. § 340.] THE DECREE. 4(17 ousto the petitioner.' The petition should be signed and sworn to by the petitioner, filed with the clerk or register of the court, and a copy thereof with copies of affidavits relied upon, if any, attached, with notice of hearing, giving the time pre- scribed by the rules and practice of the court, served upon the opposite party or his solicitor. The adverse party may answer the petition, traversing it or setting up any matter in avoidance of it; or, if an order to show cause has been made and served, may show cause on the return day of the order against grant- ing the petition. The form and contents of the petition in most jurisdictions is fixed by rule of court. In the United States court it is pro- vided that "every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court. But if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court."- If it is sought by the application to set aside a decree pro confesso and permit the defendant to interpose his defense, the proposed answer of the defendant should be attached to the petition and served upon the opposite party with copies of the affidavit upon which he relies, that the sufficiency of the answer, as well as of the showing for the opening of the case, may be considered; for if the answer is insufficient and does not set up a proper defense to the case made by the bill and proofs in the cause, the application will not be granted. § 340. The hearing. — Pursuant to the notice of hearing, or upon the return day of the order Co show cause if no adjourn- ment is had, the application for rehearing will be brought on to be heard. The proofs to be adduced must relate to the rea- sons alleged in the application and the answer of the opposite party if pertinent, and generally consist of affidavits attached to the application, if they have been properly served, and the counter-affidavits of the respondent. The court, however, may 1 Michigan Ins. Co. v. Wbittemore, 12 Mich. 437. ^ u. S. Eq. Rule 88. 468 THE DEOEEE. [§ 34:0. bring the affiants in the affidavits into court and have them examined and cross-examined in the matter, and may direct that other witnesses be produced, or maj'^ refer the matter of taking further proofs to a master or commissioner to take testi- mony and report the same to the court. If the petition be based upon newly-discovered evidence, the petitioner must show the truth of the allegations in his peti- tion and good reasons for not having produced the proofs at the hearing. And generally it is the better practice to attach to the application, and produce at the hearing of the petition, the affidavits of the witnesses whom it is claimed will give the newly-discovered evidence, stating fully the facts they will testify to, that the court may judge of the sufficiency of the proofs, and whether it is of such a nature as to change the findings of the court if the cause should be reheard. The petitioner has the affirmative at the hearing of his ap- plication, and therefore the opening and closing of the proofs and the argument. The proof must clearly show good and sufficient reasons for setting aside the decree and granting a rehearing, not only by a preponderance of proof, but by proof sufficient to overcome the presumption which exists that the final decree is proper and sufficient. The court must be con- vinced that to allow the decree to stand would be inequitable and unjust, and if the cause was to be reheard a different de- cree would be the result. If the petition be to set aside a decree jpro confesso and allow the defendant to introduce his defense, the court at the hearing should determine whether the answer proposed by the defendant is a sufficient answer, and if shown to be true would be a complete defense to the case made by the bill and the proofs adduced at the hearing; for if the proposed answer is insufficient it would be an idle ceremony to permit the decree already found to be set aside and the case reheard. If the application for a rehearing is allowed the court will order the decree set aside and a rehearing of the cause. The proofs, however, that have already been taken, and which were considered at the hearing, will generally be allowed to be presented upon the rehearing if no injustice would result from such permission. CHAPTER XYL THE BILL OF REVIEW AND BILLS IN THE NATURE OF BILLS OP REVIEW. §341 343. 343. 344. The nature and scope of the bill. The grounds of the bill. Error of judgment as to facts. Bill founded on discovery of new matter. 345. Newly- discovered evidence. 346. Some prerequisites for filing a bill of review — Must obey the decree. 347. Other prerequisites. 348. Application for leave to file a bill of review. 349. The hearing of petition for leave and the order thereon. 350. Parties to the bill. 351. Frame of the bill of review. 352. Bills in the nature of bills of review. 353. Bills to impeach the decree on account of fraud. 354. Bills to carry decrees into ex- ecution. 355. When should the bill be filed. 356. Defenses to bills of review. 357. The hearing. 357a. Enforcement of decree — Writ of execution. § 341. The nature and scope of the bill. — After the decree has been settled, signed and enrolled, or has, by reason of the lapse of the term at which it was made and issued, become a record in the cause, it cannot be reviewed by the court which ordered it except upon a bill of review. The only oflBce of the bill of review is to reopen the cause after a final decree has been signed and enrolled or become a record of the court and for the correction of errors apparent upon the face of the de- cree; or because of the discovery of new matter which could not, by the exercise of reasonable diligence, have been discov- ered before the trial; or which has arisen after the decree and would materially aflfect the determination of the cause if it were introduced at a rehearing. It has been said that " a bill of review is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree made upon a former bill, which decree has been signed and enrolled." '■ And so a bill of review will lie only after a final decree has been signed and 1 Story, Eq. PI,, sec. 403. 470 BILL OF EEVIEW AND BILLS OF THAT NATUEE. [§ 342. enrolled.! And it has been held by the United States court that it is not sufficient ground to support a bill of review that since the decree a state court has given the constitution of the state a different construction from that put upon it by the federal court in its discretion; or that since the decree the su- preme court has changed its ruling upon a question of law or fact.2 § 342. The gronnds of the hill. — In the Ordinances in Chancery of Lord Chancellor Bacon we find the following re- specting bills of review: " 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 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 grounded by the special license of the court, and not otherwise.'" This rule has never been departed from by the equity courts, and in Hill v. Phelps* the court say: "There are but three grounds upon which such a bill can be sustained. They are: (1) error of law apparent upon the face of the decree and the pleadings and proceedings upon which it is based, exclusive of the evidence ; (2) new matter which has arisen since the decree ; 'Savage v. Johnson, 125 Ala. 673, Johns. Ch. (N.Y.)488; Bank v. Loomis, 28 So. 547; Read v. Franklin (Tenn. 2 Sandf. Ch. 70. In Thompson v. Ch. App., 1900), 60 S. W. 215; Ft. Goulding, 87 Mass. (5 Allen), 81, 82, Wayne Electric Corp. v. Franklin, etc. the court say : "The well settled rule Co., 58 N. J. Eq. 543, 43 Atl. 650. In of chancery practice is that, after a Jenkins v. Eldredge, 3 Story (U. S.), decree has been enrolled, that is, after 299, 302, it was said : " It is very clear it has become a matter of record, that a bill in the nature of a bill of there can be no rehearing, either on reviewis not the appropriate remedy motion orpetition." Clappv.Thaxter, ... in the present stage of this 7 Gray (Mass.), 384; Maynard v. Pe- cause; for such a bill lies only after reault, 30 Mich. 160. a final decree, and not upon an inter- ^Hoffman v. Knox, 50 Fed. 484; locutory decree, like the pi'esent, Tilghman v. Werk, 39 Fed. 680. where the subject is still before the ^ Story, Eq. PI., sec. 404; Cooper's court." Whiting et al. v. Bank, 13 Eq. PI. 89. Pet. (U. S.) 6; Wiser v. Blachly, 3 Ml C. C. A. 569, 570, 101 Fed. 650. § 3J:3.] BILL OF EEVIEW AND BILLS OF THAT NATURE. 471 and (3) newly-discovered evidence, Avhich could not have been found and produced by the use of reasonable diligence before the decree was rendered. . . . The error in law which will maintain a bill of review must consist of the violation of some statutory enactment, or of some recognized or established principle or rule of law or equity, or of the settled practice of the court. Error in matter of form or in the propriety of a decree, which is not contrary to any statute, rule of law, or to the settled practice of the court, is not sufficient to maintain a suit to review a final decree." ^ When the ground for the bill is error of law apparent upon the face of the decree, the error must appear upon* the decree, the pleadings or proceedings in the cause and without refer- ence to the evidence, or the bill will not be sustained. For- merly, in England, the decree recited the pleadings and the evidence in substance so that the court, when this ground was alleged, need only refer to the decree. But under the recent prac- tice, and especially in the courts of the United States, it is not necessary to recite the pleadings or evidence, but, for the pur- pose of the hearing, the bill, answer and other pleadings are held to be a part of the record before the court and are to be considered with the decree in determining the question.- § 343. Error of judgment as to facts. — Where the bill is filed upon the ground that there is error of law apparent upon the face of the decree, it will not be permitted to show that the decree is erroneous in its adjudication of facts; that can only be taken advantage of upon an appeal and in the appellate court. If the decree were based upon a recital of facts which did not exist in the cause, it appearing upon the face of the decree that the court had misapprehended the facts involved, the decree would have no foundation and a bill of review would lie.' 1 Freeman v. Clay, 3U. S. App. 587, App. 357, 361, the court said: "The 3 C. C. A. 587, 593, 53 Fed. 1, 7; Hoflf- difficulty with this decree is that it mau V. Knox, 1 C. C. A. 535, 541, 50 has no support in the record as to Fed. 484, 490. facts necessary to sustain it; neither 2 For errors in a decree apparent by specific finding of facts in the de- upon the face of the record a bill of ( ree itself, nor by certificate of evi- review will lie. Osburn v. San Diego, den ce heard, nor by deposition, nor etc. Co., 178 TJ. S. 33, 44 L. Ed. 961 ; by evidence heard before a master Story, Eq. Pi. sec. 407. in chancery, is there any evidence 3 In Adamski v. Wieczorek, 93 111. preserved which, in the slightest de- 472 BILL OF REVIEW AND BILLS OF THAT NATUEB. [§ 343. But if it appeared that the court had considered the facts which were pleaded and the proofs adduced, but had arrived at a conclusion not satisfactory to the party asking to have it re- viewed, if a question of the weight of evidence was involved, then a bill of review is not the proper remedy, for it will not lie for error of judgment as to the facts considered. The only questions open in a bill of review, except when it is filed on the ground of newly-discovered evidence or for the discovery of new matter, are such as arise upon the pleadings, proceed- ings and decree without reference to the evidence in the cause. And it has been said that the decision of the court upon the issues of fact, so far as they depend upon the proofs, are con- clusive on a bill of review. So, where a bill of review was filed specially assigning error as to the findings upon the evi- dence in the cause, and not alleging newly-discovered matter, it was held to be properly dismissed, and that such a bill would be demurrable, the court saying that " the evidence in the original cause cannot be discussed for the purpose of questioning the propriety of the original decree as based on such evidence. It can only be adverted to, if at all, for the purpose of showing the relevancy and bearing of the new matter sought to be introduced into the cause." ' But where there was a finding of fact contrary to allegations in the an- swer and there was no evidence to overcome the denials, the court held that a decree entered setting aside conveyances without such evidence to support it was error in point of law.^ gree, tends to establish the allega- there was no proof to establish that tions of the bill of review to the ef- fact." feet that the original decree was ini- ' Buffington v. Harvey, 95 U. S. 99, properly obtained." Story, Eq. PI., 103; Putnam v. Day, 22 Wall. (U. S.) sec. 405. In Webb v. Pell, 3 Paige 60; Thompson v. Maxwell, 95 U. S. Ch. (N. Y.) 868, 371, the court say: 391. " It is well settled that a bill of re- 2 In Clark v. Killian, 103 U. S. 767, view, for error apparent upon the 769, the court in its opinion say: decree, must be for an error in point " The answers denied the allegations of law, arising out of facts admitted of fraud, and there was no evidence by the pleadings, or recited in the to overcome the denials. The plead- decree itself, as settled, declared, or ings in that case did not authorize allowed by the court. And a bill of the conclusion, as matter of law, that review cannot be sustained on the S. had conveyed or caused to be con- ground that a fact is stated in the veyed the property with the fraudu- decree as proved, when in truth lent intention of thereafter engaging § 344.J BILL OF REVIEW AND BILLS OF THAT NATURE. 473 To support the bill for error of law it must appear that the court has reached an erroneous conclusion of law as to the rights of the parties, and mere irregularities in the proceeding or error in deduction from the evidence will not be consid- ered.i In Caller v. Shields^ the court say: " The true rule of chan- cery practice, to be collected as well from the cases referred to as from the organization of our courts, is conceived to be that the errors in law, against which relief can be had by bill of review, must be such as arise rather from obvious mistake, or inadvertence, appearing on the face of the decree, or (if the facts are not there stated) at least of record, than of alleged error in the deliberate judgment of the chancellor on a debat- able question of law, or of equitable right." § 344, Bill founded on discovery of new matter. — A bill of review may be founded upon new matter which has arisen since the decree, or upon newly-discovered evidence which could not have been found and produced by the exercise of rea- in business, or having business trans- actions. . . . Taking all the cir- cumstances to be as they are set out in the pleadings, it is perfectly clear that the court, in adjudging tfie con- veyances of the lots above named to be null and void, and ordering them to be sold in satisfaction of C.'s judg- ment, erred in point of law. Conse- quently a bill of review vcas the proper mode of remedying that error." 1 Jordan v. Hardie, 131 Ala. 72, 31 So. 504. Failure to take an appeal is no ground for the support of a bill of review. Murphy v. Schoder, 126 Mich. 607. And where it appeared by the petition of defendant asking leave to file a bill of review that the notice of hearing served on her so- licitor was not sufficient to permit them to be present, that the ground for divorce relied upon had been condoned, it was improper to deny the petition. Kinsel v. Kinsel, 136 Mich. 693; Bank v. Dundas, 10 Ala. 661; Tankersly v. Pettis, 61 Ala. 354; San Francisco, etc. Soc. v. Thompson, 34 Cal. 76; Jones v. Fay er- weather, 46 N. J. Eq. 237, 19 Atl. 22. And where it appeared in a fore- closure case that the decree found an excessive amount of interest, a bill of review was held to be proper unless the complainant remitted the amount erroneously found. Murray V. Ingersoll, 100 Mich. 286. 2 3 Stew. & P. (Ala.) 417, 424. And in Kimberly v. Arms, 129 U. S. 513, 40 Fed. 548, affirmed In 136 U. S. 629, it was held that a bill of review will not be sustained to coi-rect an alleged erroneous deduction or con- clusion from the evidence. Bur- ley V. Flint, 9 Biss. (U. S.) 204, af- firmed in 105 U. S. 347; Contee v. Lyons, 19 D. C. 207. And the mere fact that a decree is based upon in- admissible or improper evidence is not sufficient ground for a bill of review unless the error appears upon the face of the decree. Eaton v. Dickinson, 35 Tenn. (3 Sneed), 397. ili BILL OF KEVIEW AND BILLS OF THAT NATURE. [§ 344. sonable dilio'ence before the decree was rendered. These are the second and third reasons laid down by Lord Chancellor Bacon in his Ordinances in Chancery, already quoted, and seem to be distinct reasons resting upon distinct conditions and facts. (2) As to new matter which has arisen since the decree,, there has been but little discussion; such matter evidently rests upon different grounds from newjy-discovered evidence, for that consists of facts which really existed and was a part of the case when it was heard, but was not known to the party, while the new matter arising since the decree is matter which had no existence at the time of the hearing. This particular ground comprises cases where, by the occurrence of some fact, the decree already rendered would become void, or at least so effected that the court would at once determine that it would be unjust and inequitable to allow it to stand. As, for ex- ample, if there had been a release or discharge of some obliga- tion or lien which would affect some or all of the parties ; or if the decree had been obtained by fraud. Mr. Adams, in discussing this particular ground for filing a bill of review, says: "If new matter occurs or is discovered after the decree, it is not properly matter of supplement, but may be introduced into the cause, if necessary, by a bill ex- presslj'' framed for the purpose, and called a bill to execute or to impeach a decree." ^ Mr. Mitford, in discussing this, has raised a question as to 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 urges that cases could rarely happen in which new matter discovered would not be in some degree evidence of matter in issue in the original cause if the pleadings were properly framed, but finally concludes that " if a case were ta arise in which the new matter discovered could not be evi- dence of any matter in issue in the original cause, and yet 1 Adams' Eq. 415. It is said by but constituting an entirely new Judge Story (sec. 416) that " it has issue, may yet be the subject of a been established that matter dis- bill of review, or of a supplemental covered after a decree has been bill in the nature of a bill of review." made, although not capable of being Partridge v. Usborne, 5 Russ. 195; used as evidence of anything which Massie v. Graham, 3 McLean, 42. was previously in issue in the cause. ^ SJrO.j BILL OF REVIEW AND BILLS OF THAT NATURE. 475- clearly demonstrated error in the decree, it should seem that it might be used as aground for a bill of review, if relief could not otherwise be obtained. 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." 1 Under this ground for bill of review may be grouped rea- sons which occur at the hearing or at the time of renderino- the decree. As for mistake or misconduct of counsel, as where a solicitor had entered his appearance without authority and a decree was rendered without any service upon the defendant;^ or where the solicitor compromised the rights of the party by an unauthorized act.' But mere carelessness or unfaithfulness, or proceeding upon wrong advice, or where documentary evi- dence was lost or mislaid by carelessness of counsel, will not support a bill of review. § 345. Xewly-discovered evidence. — A bill of review rest- ing upon the ground of newly-discovered evidence, like a mo- tion or petition for rehearing, must show that the new matter iMitf. & Tyler's Eq. PI. & Pr. 183; Partridge v. Usborne, 5 Russ. (Eng.) 195. In Young v. Keighly, 16 Ves. Jr. 348. this court refused its leave to file a bill of review, where it would have been the means of introducing an entirely new case, of the matter of which the plaintiff was sufficiently well apprised to have been able, with the exertion of reasonable diligence, to have brought the same at first completely before the court. Reed et al. V. Stanley et al., 89 Fed. 480. 2 Griggs v. Gear, 8 111. (3 Gil.) 2; Childers v. West, 39 Ga. 518. Mistake of computation may be corrected by review. Lovell v. Kelley, 48 Me, 363; Star bird v. Eaton, 43 Me. 569; Isley v. Knight, 1 Mass. 467. Forcing one to trial unprepared, it appearing that injustice has been done, is cau.se for review. Reynard v. Brecknell, 4 Pick. (Mass.) 304. But see Weeks V. Adamson, 106 Mass. 514. 3 Ex parte Vandermissen, 5 Rich. (S. C.) 519, 60 Am. Dec. 103; Jones v. Pilcher, 6 Munf. (Va.) 425; Franklin v. Wilkinson, 3 Munf. (Va.) 113; Price V. Notrebe, 17 Ark. 45; Calmes v. Ament, 8 Ky. (1 A. K. Marsh.) 459; Riley v. Emerson, 5 N. H. 531. In Sylvester v. Hubley, 157 Mass. 306, the court, in a case where the appli- cation was founded upon the negli- gence and misconduct of the attor- ney, held : " The question whether to grant a review, and if so on what terms, is addressed largely to the discretion of the judge. This dis- cretion should be exercised in such a way as to promote an orderly and proper administration of justice, and not to encourage carelessness, igno- rance, and laxity of practice in the conduct of cases in courts." Thayer V. Goddard, 19 Pick. (Mass.) 60; Brewer v. Holmes, 1 Mete. (Mass.) 288, For failure to enter an appear- ance, see New England, etc. Co, v. Lisbon, etc. Co., 33 N. H. 170. 476 BILL OF EEVIEW AND BILLS OF THAT NATUEE. [§ 345. has come to the knowledge of the applicant since the hearing -of the cause, and that he could not with reasonable diligence have discovered it sooner. It must be evidence that is material -and not cumulative, and such evidence that if it had been brought to the attention of the court at the hearing would in all probability have occasioned a different decree.^ And where the allegations of the newly-discovered evidence are vague and uncertain, and so indefinite as to warrant no satisfactory conclusion, they will not be sufficient to sustain a bill of re- vie w.^ It must appear by the bill that substantial justice has not already been done by the decree, and that the review, if granted, would result in a material change of the decree already made.' Where in a suit for partition a bill of review was filed to change a decree on the ground of newly-discov- ered evidence of title, showing that certain persons were not entitled to an interest in the land as declared by the decree, and it appeared that the title was a matter of public record •and reasonable diligence in the examination of it would have disclosed the same title asserted in the bill of review, it was held that the bill of review should be dismissed.* The evi- dence sought to be adduced must not be merely cumulative •nor simply to impeach former testimony in the case.' It is said to be "well established that new evidence, or a showing that evidence heard is false, will not avail on bill of .review where the evidence relied upon simply tends to the establishing of the issues already presented and disposed of; ' In Jourolmon v. Ewing, 29 C. C. complainant to a decree more bene- A. 41, 85 Fed. 103, it is said to bo a fioial to him than the decree already leading rule "that the new evidence rendered. must be of such a character and so ^ Caller v. Shields, 8 Stew. & P. -controlling in its effect as that it (Ala.) 417; Warren v. Adams, 26 would probably induce a different Colo. 404, 60 Pac. 632; Reynolds v. conclusion from that on which the Fla. etc. Ry. Co. (Fla., 1900), 38 So. former decree was based, in order to 861. give ground for the filing of such a SQigver v. Jones, 95 Me. 303, 49 bill. But in Banks v. Long, 79 Ala. Atl. 1 104. 319, it was held that it must appear * Watts v. Rice, 193 III. 183., 61 N. that the newly-discovered evidence E. 837; Fuller v. Jackson (Tenn. Ch., was not known at the time of the 1901), 63 S. W. 374. former hearing, and that such evi- ^gtory^ gq, P)_ 413. 3 Barb. Ch. 93; dence, together with the proofs al- Boyden v. Reed, 55 111. 458; Aholtz ready in the case, would have entitled v. Durfee, 183 111. 286. § 340i.] BILL OF EEVIEW AND BILLS OF THAT NATUKE. 47T in other words, where it is merely a matter of reducing or in- creasing, by cumulation, the evidence heard upon the issues." ' § 346. Some prerequisites to filing a bill of review — Must obey the decree.— The early English rule and the rule which was followed in the earlier cases in the United States was that before a bill of review could be filed the party must obey the decree that had been entered in the cause. No doubt this rule is generally followed by the courts, but in some respects it has been more or less modified. In stating the practice in this respect, Daniell uses this language: "Filing a bill of re- view does not stay the execution of the decree which is com- plained of; and before an}'- bill of review, or other bill to re- verse or alter a decree, can be filed, the decree must be first obeyed and performed, except that, if any act is decreed to be done which extinguishes a right at common law, as the mak- ing of an assurance or release, acknowledging satisfaction, can- celing of bonds or evidences, and the like, the court may dis- pense with the actual performance of that part of the decree until such bill is determined. Thus, if money is directed to be paid, it ought to be paid before the bill of review is filed, though it may afterwards be ordered to be refunded. The rule, however, only r" quires the aggrieved party to perform so much of the decree as he was bound to perform at the time he files the bill of review, and does not prevent him from filing the bill before he has performed the decree as regards those things which, by the decree, he was not bound to perform till a period subsequent to the time when the bill was filed." ^ One of the ordinances of Lord Bacon, " for the better and more regular administration of justice in chancery, to be daily observed, saving the prerogative of the court," was that " no bill of review shall be admitted, or other new bill to change mat- ter decreed, except that the decree be first obeyed and per- formed." But the harshness of these rules have been more or less modified, and it was said in Davis v. Speiden^ " that this ordinance was intended for the regulation of procedure rather 1 Adamski v. Wieczorek, 93 111. Voorhees, 45 N. J. Eq. 41 ; Elzas v. App. 357, 363; Caswell v. Caswell, Elzas, 183 111. 133, 55 N. E. 673. 120 111. 383; Society v, Wafson, 77 2 3 Danl. Ch. PI. & Pr. (4th ed.) 1583, Fed. 513; United States v. Throck- ' 104 U. S. 83, 84. morton, 98 U. S. 61; Traphagan v. 478 BILL OF REVIEW AXD BILLS OF THAT NATUEB. [§ 346. than to limit the jurisdiction of the court seems to us apparent, because not only on its face the prerogative of the court is saved, but as early as 1632, in Cock v. Hobl^ a bill of review- having been filed without performance of the decree, the cause was permitted to proceed on giving security for the debt which was decreed to be paid." It was further noted that where a motion was made that proceedings on decree be stayed until a bill of review could be heard, it was ordered that the decree should be performed before anj' bill of review would be allowed, unless the plaint- iff swear that he is not able to perform the decree, and will surrender himself to be imprisoned until the matter be deter- mined upon the bill of review; the court summing up the mat- ter in this language: "These cases clearly show that from the beginning the ordinance was treated as a rule of practice, and questions touching obedience to its requirements were not considered as matters of strict right, but as governed b}'^ a sound discretion." And so the obedience and performance of the decree has in some respects been held to be dispensed with by the courts, — as, for example, where a sum of money has been ordered paid, and it appeared that the party was unable to pay it, or had given security for its payment, or where ex- ecution had been levied for its collection. In such cases the courts hold that the security, or the execution, stands in the place of the performance of the decree, and in case of inability to pay, as in the case of bankruptcy or otherwise, equity will not deprive the party of his remedy because he has failed to perform the decree.^ Still there are cases where the rules of practice would demand that the decree be performed ; as, for example, if it be for the possession of land, the possession must be given up; or for specific performance in the making and ex- ecuting of a conveyance, or any act the performance of which would not give to the adverse party undue or inequitable ad- vantage. In Manufacturers', etc. Go. v. Lindhlom^ a bill was filed to review a decree for the payment of money, and it was held that no stay of such decree would be granted unless the money, ordered paid, be brought into court, or security be given for its performance. 1 5 Russ. 235. 2 story, Eq. PI., sec. 406. s 68 111. App. 539. §§ 317, 3i8.] BILL OF EEVIEW AND BILLS OF THAT NATUEE. 4:79 §3-1:7. Other prerequisites. — It must appear in the appli- cation that the decree which is sought to be opened is a final decree, for a bill of review lies only after a final decree in the cause.i And for obvious reasons a bill of review will not lie to correct or change a consent decree.^ And if the review is sought for upon the ground of error of law apparent upon the face of the decree, it must appear, by comparison of the de- cree, pleadings and other proceedings, that the court has reached an erroneous conclusion of law as to the rights of the parties.' A bill of review will not be sustained unless it ap- pears by allegations in the bill that substantial injustice has been done in the rendering of the decree; that to allow it to stand the applicant would suffer injury, and if a review of the case can be had it would result in a material alteration of the decree.'' A bill of review will not be supported where it ap- pears that the decree has been affirmed upon appeal, nor will a court of chancery entertain a bill to review a decree of- the supreme court." And where by statute or rule of court the bill must be filed within a fixed time, it must appear by the bill that it is within the time in which bills of review may be filed. And so it has been held in the United States court of appeals that a bill of review must be filed within the time al- lowed by statute for an appeal; but that an attempted appeal to the supreme court in a case where no appeal to that court is allowed does not operate to suspend the time within which a bill of review may be filed, and that such a bill must be filed within the six months allowed for taking an appeal." j; 348. Application for leave to file a bill of review.— If the bill of review is based upon new matter discovered since the decree, it cannot be filed until leave of court is first ob- tained. This rule does not apply where the grounds of the bill are for apparent error upon the face of the decree. In such 'Savage v. Johnson, 135 Ala. 673, s Jordan v. Hardie, 131 Ala. 72, 31 38 So. 553; Ft. Wayne, etc. Co. v. So. 504. Franklin, etc. Co., 58 N. J. Eq. 543, * Glover v. Jones, 05 Me. 303, 49 43 Atl. 650; Story, Eq. PI., sec. 403; Atl. 1104. Traphagan v. Voorhees, 45 N. J. Eq. ^ Murphy v. Johnson, 107 Tenn. 553, 44, 16 Atl. 198; Read v. Franklin 64 S. W. 894. (Tenn. Ch. App., 1900), 60 S. W. 315. SBIythe Co. v. Hinckley, 49 C. C. 2 Watts V. Rice, 193 III. 133, 61 N. E. A. 647, 111 Fed. 837. 337. 480 BILL OF REVIEW AND BILLS OF THAT NATUKE. [§ 34:8. case leave of court is not necessary, for it is a matter of right of the party to file a bill of review.' But if it be for newly- discovered evidence or matters discovered since the decree, the court will not permit the bill to be filed until it has been de- termined by the court upon formal application that the bill will be entertained. The granting of a bill of review on the ground of newly-dis- covered evidence is not a matter of right, but it rests in the sound discretion of the court. And so, although the facts if admitted would change the decree, the court may determine that it is best to refuse its consent to the filing of the bill, for looking at all the circumstances it might be deemed productive of mischief to innocent parties, or for other causes unadvisable^ and it is for this reason that the court first requires an ex- amination of the grounds upon which the bill is proposed and to know something of the merits of the cause before it is per- mitted to be filed.^ The application for leave to file the bill is made by petition, which should set out the reasons for a review of the cause. The practice requires that this petition should state the nature of the case, the decree, and the grounds upon which the bill of review is sought to be filed. If for errors apparent upon the decree, these errors should be set out explicitly. If it is founded upon the discovery of new matter, the petition should describe the new evidence distinctly and specifically, stating when it was discovered and its bearing upon the decree. And it is not sufficient that the application should state that the petitioner expects to prove certain facts. He must set forth the exact evi- dence he expects to establish, giving the reasons for it, and the better practice would seem to be that he should file the affidavits of persons upon whom he relies for the evidence discovered.' 1 Elliott T. Balcom et al., 77 Mass. cases where the facts, if admitted or (11 Gray), 286, 300. proved, would ordinarily form suf- 2 Dexter v. Arnold, 5 Mason, 303, fioient ground for review, yet, look- 315; Thomas v. Harvie, 10 Wheat, ing at all the circumstances, a court (U. S.) 146. In Elliott v. Balcom et al., of equity, out of regard to the rights 77 Mass. (11 Gray), 386, 300, the court of innocent parties, would withhold say: "The granting of such a bill, its consent, and refuse to give a party for causes not apparent on the face the privilege of reversing a decree of the record, is not a matter of by means of a bill of review." right, but rests in the sound discre- 3 in Dexter v. Arnold, 5 Mason tion of the court. There may be (U. S.), 301, 316, it was said: "Apeti- § 3i9.] BILL OF REVIEW AND BILLS OF THAT NATURE. 481 The real merits of the case are necessarily thoroughly ex- amined on the hearing of the petition, but it is held that the determination of the court thereon does not extend beyond the issue then before the court upon the petition, and that the find- ings of the court upon that question are in no way conclusive upon the hearing of the cause upon bill of review, and that the facts that are put in issue by the bill of review and the answer thereto are fully open to inquiry and investigation, and are to be determined independent of the findings of the court upon the petition for application to file the bill.^ § 349. The hearing of petition for leave and the order thereon. — -The opposite party is entitled to service of copy of the petition or application for leave to file the bill of review, together with notice of the time and place of its hearing. At the hearing of the petition affidavits may be presented on both sides if necessary to explain the nature of the evidence that is sought to be introduced and which has been discovered. The whole matter is laid before the chancellor upon the hearing of the application so that he may have a knowledge of its merits and may exercise a wise and judicial discretion as to the pro- priety of interfering or meddling with the decree. The court is not only to determine at this time the relevancy and impor- tance of the proof sought to be introduced by the applicant and the probability of its changing the existing decree, but it is to determine whether the prerequisites to the filing of such a bill exist; for if the proof could have been adduced at the former hearing of the cause, or if there has been negligence upon the part of the applicant in obtaining the proof, or if to allow the cause to be reheard the result would be unconscionable or in- equitable, the application will be dismissed.^ If upon the hearing the court finds that leave to file the bill should be granted as prayed in the petition, an order to that effect will be entered, whereupon the applicant will be per- tion for leave to file a bill of review bears on the decree, that the court for newly-discovered matter should may see its relevancy and the pro- contain in itself an abstract of the priety of allowing it." Cooper's Eq. former proceedings, the bill, answers, PI. 93. decree, etc., and should then specific- i Elliott v. Balcom et al., 77 Mass. ally state what the newly-discovered (11 Gray), 386, 300. matter is, and when it first came to ^ Wethered v. Elliott, 45 W. Va. the party's knowledge, and how it 436, 33 S. E. 209. 81 482 BILL OF REVIEW AND BILLS OF THAT NATURE. [§ i350. mitted to file the bill as prayed in his petition, otherwise the application will be refused. § 350. Parties to the bill. — As a general rule, all parties to the original action should be made parties to the bill of re- view. But as we have seen, a party cannot file a bill of review if he is not interested in the question intended to be presented by it; and if he has not been injured by the former decree, even though he may have an interest in the cause, the court would not permit him to file a bill of review merely because it was injurious to third parties; he must allege and show that it is injurious to him.' The party plaintiff to the bill of re- view may have been a party defendant in the original suit, for the bill of review is to be tiled by a person who has obtained leave, having been injured by the former decree because it violates his legal or equitable right. In other respects the rules pertaining to the bringing in of parties in chancery causes generally obtains. The parties to the original suit and their privies in repre- sentation, as heirs, executors and administrators, can have a bill of review, but " other persons in interest and in privity of title or estate who are aggrieved by the decree, — such as dev- isees and remaindermen, — are entitled to maintain an orig- inal bill in the nature of a bill of review so far as their own interests are concerned."^ And so it has been held that "if any person not a party to the original suit has become inter- ested in the subject-matter, he must be made a party to the bill of review." ' 1 Allgood V. Bank, 130 Ala. 237, 29 view ought to have the same parties So. 855. that were to the proceedings sought 2 2 Barb. Ch. (Book 4, eh. 6), 95. to be reversed, but may be made 3 2 Danl. Ch. PI. & Pr. 1580; Story, complainants or defendants accord- Eq. PL, sec. 420. In Elwell v. Syl- ing to their respective interests in vester, 27 Me. 536, 538, it is said: "A the matter to be reviewed. Debell review only brings the former par- v. Foxworthy, 48 Ky. (9 B. Monroe), ties and their proceedings before the 228; Friley v. Hendricks, 27 Miss. (5 court. It can do no more. The writ Coshm.) 412; Amiss v. McGinnis, 12 of review must be sued out by a W. Va. 371; Miokle v. Maxfleld, 43 party to the former suit, or by one Mich. 304; Story, Eq., sec. 409. One representing the interest of a party." who is not a party to the original Nowell V. Sanborn, 44 Me. 80; Coch- suit and whose rights are in no man- ran V. Couper, 2 Del. Ch. 27; Turner ner affected by the decree is not en- V. Berry, 8 111. (3 Gil.) 541. In Sloan titled to file a bill of review. Chan- V. Whiteman, 6 Ind. 434, it was held cellor v. Spencer, 40 W. Va. 837, 21 to be a general rule that a bill of re- S. E. 1011. § 351.J BILL OF EEVIEW AND BILLS OF THAT NATORE. 4S:] § 351. Frame of the bill of review.— From the nature of the relief sought, it will be seen that it is necessary in framing a bill of review to set out the former bill, the proceedings thereon, the decree that was had at the hearing, and to allege with particularity the special manner in which the party ex- hibiting the bill has been injured or aggrieved by it, and the ground upon which the right to review the cause is claimed. It is not necessary to set forth in this bill the evidence that was adduced at the hearing, but depending, of course, upon the ground alleged as reasons for setting the decree aside, it may be necessary to set forth the substance of some portions of the proof. As, for example, if the bill rests upon the ground that the decree is erroneous for reasons apparent upon the face of it, the substance of the pleadings, the decree and suf- ficient of the proceedings to illustrate the decree and the error complained of should be set out in the bill of review. If the ground alleged is that new evidence has been discov- ered which, if brought to the attention of the court at the time of the hearing, would have changed the opinion of the court and resulted in a different decree, the pleadings, decree and sufficient of the proofs at the hearing should be stated in the bill to fully illustrate the force of the newly-discovered evidence, together with allegations of the inability of the com- plainant to have produced the proof at the hearing and to show that he was not guilty of negligence in that respect, and that he had no knowledge of its existence at the time. The whole matter of the stating part of a bill of review may perhaps be summed up by stating that the facts alleged must clearly show that the complainant is entitled to the relief prayed for, and that the bill is sufficient to support a decree setting aside the former decree and allowing its reformation as prayed in the bill. Lord Eedesdale gives the following rules for the framing 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 new matter discovered upon Avhich he seeks to impeach it; and if the decree is impeached on the latter ground, it seems nec- essary to state in the bill the leave obtained to file it and the fact of the discovery, though it may be doubted whether, after 484 BILL OF EEVIEW AND BILLS OF THAT NATUKE. [§ 351. leave given to file the bill, that fact is traversable. The bill raay pray simply that the decree may be reviewed and reversed in the point complained of, if it has not been carried into ex- ecution. If it has been carried into execution, the bill may also pray the farther decree of the court, to put the party com- plaining 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 review the reversal of a former decree, it may pray that the original decree may stand. The bill may also, if the original suit has become abated, be at the same time a bill of revivor. A supplemental bill may likewise be added, if any event has happened which requires it; and particularly if any person not a party in the original suit becomes inter- ested in the subject, he must be made a party to the bill of re- view by way of supplement." ^ The bill should be signed by counsel and should conform generally to the requirements applicable to original bills, as to filing service of copies and appearance of defendant; the practice in these respects conforming to the rules of court already discussed. The defendant should be served with pro- cess and jurisdiction obtained as in cases of original bills. A bill which unites several different and distinct grounds of review, which, in their disposition, would involve different relief and separate defenses, would be multifarious. But if the grounds relied upon in the bill are consistent and harmonious, there is no objection to allowing a bill of review upon several grounds.^ In Khnberly v. Arms^ the court say: "It may be doubted whether it is in consonance with proper practice thus to join 1 1 Foster, Fed.Pr.793; Mitf. PI., oh. 1, good on either ground it will he sus- seo. 3; Whiting V. Bank, 13 Pet. (U.S.) tained. In Winchester v. Win- 6; Story, Eq. PI., see. 420; Glover v. Chester, 38 Tenn. (1 Head), 460, a Jones, 95 Me. 306, 49 Atl. 1104; Steen like bill was held good, and that V. March, 133 Cal. 616, 64 Pac. 994; the two causes or grounds might be Halstead v. Forest Hill Co., 109 Fed. joined in the same bill. Murphy v. 820. Branaman, 156 Ind. 77, 59 N. E. 374; 2 In Colville v. Colville, 28 Tenn. (9 Heiskell v. Galbraith (Tenn. Oh. App., Humph.) 524, it was held that a bill 1900), 59 S. W. 846. of review to correct errors apparent ^40 Fed. 548, 559; Perry v. Phelips, upon the face of the decree and for 17 Ves. 173; Attorney-General v. Col- newly discovered matter is proper lege, 7 Sim. 354. and is not multifarious, and if found §§ 352, 353.] BILL OF REVIEW AND BILLS OF THAT NATURE. 485 or unite in one bill several different and distinct grounds of review, which invoke different relief under each branch, and separate defenses to the several parts of the bill. The object and effect of that branch of the bill resting on fraud is to va- cate the decree in toto, not to retry the case ; and the fraud should be of such character as to warrant that relief. The object and effect of a bill of review for error of law apparent upon the face of the record is to reverse the decree so far as erroneous and to retry the cause upon the original record, while the purpose and effect of a bill of review based upon newly-discovered evidence is to suspend the decree and retry the cause upon the original and new proof. To unite these three grounds of review and relief in one and the same bill must lead to great confusion and render the bill multifarious." §352. Bills iu the nature of bills of review. — The pure bill of review is generally confined to the parties in the origi- nal cause, and generally only parties to the decree, or their privies by operation of law, as heirs, executors or administra- tors, are entitled to file a bill of review. But it often happens that other persons obtain interests which are affected by the decree, as assignees or devisees ; these parties, while not tech- nically parties to a bill of review, are not left without a remedy ; they will be permitted, when injured by the decree, to file a bill in the nature of a bill of review. Upon this subject Lord Kedesdale says: " If a decree is made against a person who had no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest, relief may be obtained against error in the decree by a bill in the nature of a bill of review ; . . . as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court." ^ § 353. Bills to impeach the decree on account of fraud. — A bill of this kind is no doubt in the nature of an original bill; the fraud alleged raises an independent issue, one in no wise involved in the original cause, and so it becomes necessary to establish it by proof before the propriety of the decree can be 1 Mitf. & Tyler's PI. & Pr. in Eq. 190. 486 BILL OF EEVIEW AND BILLS OF THAT NATURE. [§ 353. investiffated. But it has been said that " where a decree has been so obtained the court will restore the parties to their for- mer situation whatever their rights may be. . . . Where an improper decree has been made against an infant, without actual fraud, it ought to be impeached by original bill." ' Such, a bill must not only state the proceedings that led up to the decree and the decree that was obtained, but it must clearly set forth the fraud which was relied upon to impeach the decree, and this must be so explicitly set forth that the court and the opposite party may be made aware of the facts which it is claimed con- stitute the fraud complained of. It must also clearly allege that damage has resulted from such fraud to the complainant, and that he is injured thereby. And it has been said that fraud, and damages resulting from such fraud, must be coupled together to entitle the injured party to relief in a court of equity.'^ The prayer of the bill must necessarily be according to the nature of the fraud alleged and the extent of its operation in obtaining the improper decree. In such a bill all the parties to the original suit and their representatives should be made parties.' It must also be shown by the bill that there is a valid and meritorious defense to the original decree, and that the fraud relied upon was controlling in the determination of the original case on its merits.* Another bill in the nature of a bill of review mentioned by the writers upon this subject is a bill to avoid the operation of 1 Mitf. & Tyler's PI. & Pr. in Eq. 191. done by petition; although it seems - Hargroves v. Nix, 14 Ga. 316. onoe to have been thought that a de- 3 Harwood v. Railway Co., 17 Wall, cree, as well as an interlocutor^' (TJ. S.) 78. Of this class of cases order, could be set aside for fraud Judge Story says (see. 486): "A bill by petition only. Where a decree of this sort is an original bill in the has been so obtained the court will nature of a bill of review. There is restore the parties to their former no doubt of the jurisdiction of courts situation, whatever their rights may of equity to grant relief against a be. This kind of bill may be filed former decree, where the same has without leave of the court being been obtained by fraud and imposi- first obtained for the purpose, the tion; for these will infect judgments fraud used in obtaining the decree at law and decrees of all courts; but being the principal point in issue, they annul the whole in the consid- and being necessary to be established eration of courts of equity. This by proof before the propriety of the must be done by an original bill; decree can be investigated." and there is no instance of its being * Kimberly v. Arms, 40 Fed. 548. §§ 354, 355.] BILL 01" REVIEW AND BILLS OP THAT NATUEE. 487 a decree. It is seldom if ever used. An instance is given by Lord Eedesdale in his work on Equity Pleading.' It has been held that an original bill in the nature of a bill of review to set aside a decree for fraud may be filed without first obtain- ing leave of the court.^ § 354. Bills to carry decrees into execution. — It some- times happens that, from the neglect of parties or other causes, it becomes impossible to carry a decree into execution without some further decree of the court. Such are cases where, after neglecting the execution of the decree, circumstances have in- tervened which more or less disturb, if they do not change, the rights of the parties so that it becomes necessary to bring the matter before the court for its adjudication. These bills may be instituted by persons who were not parties to the original suit, but who have obtained equitable or legal rights by reason of the decree, and are unable to obtain a determina- tion of them without carrying into execution the decree of the court. They are said to be partly original bills and partly bills in the nature of original bills, and sometimes bills of re- vivor or supplemental bills in the nature of bills of revivor. The frame of the bill, of course, depends upon the circum- stances which govern the particular case.' § 355. When should the hill be flled. — There is no fixed rule as to the time when the bill of review must be filed. B}"" analogy it has been held that a bill of review must be filed within the time limited by law for taking an appeal, and this seems generally to be acceded to. This was laid down in an early case in the United States court.* In McDonald v. Whit- ney^ the court say: "From analogy to the time within which by law an appeal may be taken from the circuit court to the supreme court, the supreme court have established the same limitation respecting bills of review, whenever the ground of the bill is error on the face of the decree."^ The time within iMitf. Eq. PI. 04. 6 whiting v. Bank, 13 Pet. (U. S.) 2Ritchie v. Burke, 109 Fed. 16; 6; Picker v. Powell, 100 U. S. 104. In Cox V. Bank, etc. (Tenn. Ch. App., Reed v. Stanley, 38 C. C. A. 381, 97 1900), 63 S. W. 237. Fed. 521, it was held that the rule 3 Story, Eq. PL 429, 433. was well established in courts of ^Thomas v. HarvieetaL,' 10 Wheat, equity of the United States that the (U. S.) 146. bill must be filed within the time al- 539 Fed. 466. lowed for appeals. Ingles v. Bryant, 488 BILL OF EEVIEW AND BILLS OF THAT NATtJEE. [§ 356. ^Yhich the bill may be filed has, in some jurisdictions, been set- tled by rule, and there have already been conditions attached by way of requiring a certain amount to be deposited for pay- ment of costs under certain circumstances. All this will be discovered by consulting the rules established in the different jurisdictions. § 356. Defenses to bills of review. — As a general rule it may be stated that a bill of review is subject to the same de- fenses that apply to an original bill. The defendant may demur, plead or answer, and for the same reasons applicable to defenses to original bills. The most usual and natural defense to a bill of review based upon error apparent upon the face of the de- cree is by demurrer. The bill itself raises a question of law. It sets out the error complained of, and insists that because of its existence the decree should be set aside and the cause re- viewed. A demurrer is, therefore, a very proper defense to such a bill. If the demurrer is sustained the effect is to con- firm the decree already made and end the suit. If the bill is founded upon newly-discovered evidence, the suificiency of the evidence has presumably been passed upon by the court in allowing the bill to be filed. But this does not preclude the defendant from filing a demurrer, if, admitting the allegations of the bill, he may meet the case made. If he de- sires to controvert the facts alleged as new matter, he may answer the bill and introduce evidence to controvert its alle- gations the same as though the bill were an original bill.' But it has been held that a defense that the decree was a consent decree must be pleaded if it does not appear upon the face of the bill.2 Where the former decree is fully and fairly stated in the bill, it is not necessary to plead it. And where it was sought to review a case and set aside the decj-ee upon the ground of fraud in obtaining it, the bill alleging the fraud of certain school and township officers, whereby a large judgment was obtained against the township, but failing to show that the 117 Mich. 113; Dunfee v. Childs, 45 i Dexter v. Arnold, 5 Mason (U. S.), W. Va. 155; Blythe Co. v. Hinckley, 303. 49 C. C. A. 647, 111 Fed. 827; Cope- 2 Turner v. Berry, 8 111. (3 Gil.) land V. Bruning, 104 Fed. 169. 541. § 357.] BILL OF REVIEW AND BILLS OF THAT NATUKE. 489 plaintiff who procured the judgment was guilty of any fraud, it was held that the bill was subject to a demurrer.^ § 357, The hearing.— The hearing upon the bill of review follows as nearly as possible the hearing in cases of original bills, but the results or decree must, from the very nature of the bill and the prayer for relief, be somewhat different. If the bill be founded upon, error apparent upon the face of the decree, it generallj', if not universally, raises an issue at law, and the hearing is like the hearing upon a demurrer, an argu- ment of the law issue involved. If the bill of review be sus- tained, the decree will be reversed ; and if it rests entirely upon the reasons involved and alleged in the bill of review, a final decree for the plaintiff may be entered; but if there should be other questions involved in the original cause, and which, be- cause of the reversal of the former decree, remain undeter- mined, the original cause would necessarily be reheard. If the bill of review in such case is dismissed at the hearing, then tlie former decree would be affirmed and be final. If the bill of review be one founded upon new matter, or for newly-discov- ered evidence, the cause would be heard upon proof adduced before a master, or in open court, as the rules and practice in the particular jurisdiction provide, and a decree reversing or affirming the former decree, as the court may find, would be entered. If the new matter in such case is found by the court as alleged, and it is suBBcient with the proofs already before the court and no sufficient defense is made, the court may make a final decree in the cause reversing the former decree and finding a decree for the opposite party. If, however, the court finds that the new matter is not sufficient to reverse the decree already made, the bill of review will be dismissed and the decree stand affirmed. The findings of fact on the hearing of petition for leave to file a bill of review are not conclusive, nor are they in any way binding upon the court at the final hearing of the cause upon the bill of review.^ 1 Webb V. Pell, 3 Paige (N. Y.), 368. that the defendants were duly served 2 1 Danl. Ch. PI. & Pr. (4th ed.) 1578, with process in the suit in which the note. decree was rendered, and that the In Loftis V. Butler (Tenn. Ch. App., decree was within the pleadings and 1900), 58 S. W. 886, where it appeared no fraud was alleged in the bill of 490 BILL OF REVIEW AND BILLS OF THAT NATUEE. [§ 357a. If the bill be a supplemental bill in the nature of a bill of review, or an original bill in the nature of a bill of review, as where the original decree was made against a person who had no interest in the subject-matter, or not such an interest as would support a decree against him, at the hearing of such a case the court may reverse the decree as to such person and find a final decree dismissing the original bill as to him. Or, if the court should find that the plaintiff in the supplemental bill in the nature of a bill of review did not have a sufficient interest to support the decree had he been mad^ a party in the original bill, in such case the court may find and enter a de- cree affirming the former decree as to such plaintiff. § 357a. Enforcement of decree — Writ of execution. — The suit having been determined, the decree settled, signed and enrolled, becomes operative, and may be enforced accord- ing to its terras. If some duty is required to be performed on the part of the defendant or complainant, and these parties should fail to perform, the decree will stand for its perform- ance; as where a convej^ance or writing obligatory is ordered, to show chain of title. In every decree there is usually an order for the payment of money, at least costs to be taxed, and often an amount for damages awarded or for deficiency, if any after sale of pledged or mortgaged property; in such cases the statutes of the different states provide for the issu- ance and levy of a writ of execution for the satisfaction of the amount. In cases where reference has been made to a mas- ter, execution cannot be issued until his report of the amount due has been made and confirmed by the court. In some juris- dictions the execution issues as of course; in others formal ap- plication must be made by petition served and heard in the usual way. review, the court held that it would a decree is in accordance with the not look beyond the record to deter- allegations of a bill and authorized mine whether the evidence was suf- by the evidence where such objec- ficient to support the decree. In tion was not one specified in the bill Glover v. Jones, 95 Me. 303, 49 Atl. of review as cause for reversing the 1104, it was held that the court would decree. determine on abill of review whether CHAPTEE XVII. APPEALS. § 358. The nature of the appeal in equity. 359. Appeal lies — Final decree. 360. By whom taken. 361. The procedure in obtaining and perfecting an appeal. g 363. Dismissal of the appeal. 363. Notice of motion to dismiss appeal. 364. The hearing. 365. The decision and decree of the court. § 358. The nature of the appeal in equity. — By an appeal in equity is meant that proceeding by which a case that has been finally determined in an inferior equity court is removed to a superior or appellate court for review and determination by that court upon the same pleadings and proofs upon which it was heard and determined in the inferior court. It is espe- cially applicable to suits in equity, and is the only proceeding by which an equity case may be removed to an appellate court for a rehearing. In an early case it was said : " An appeal is a process of civil-law origin and removes a cause entirely, sub- jecting the facts as well as the law to a review and retrial; but a writ of error is a process of common-law origin, and it removes nothing for re-examination but the law." ' The term "appeal" is often used in the United States in a general sense as embracing the review of all cases whether in law or in equity, but suits at law are generally removed to the appellate court by a writ of error, while suits in equity are heard upon an appeal. This distinction has met with the ap- proval of the courts, and so it follows that an equity case in a technical sense cannot be said to be heard by the appellate court upon writ of error but upon appeal. It has been held that the word " appeal " in its technical sense denotes the civil- law mode of transferring a cause to a superior tribunal for a re-examination on the matter of facts as well as of law as dis- 1 Wiscart et al. v. Dauchy, 3 Dallas (U. S.), 331, 327. For a full discussion of this matter, see United States v. Wonson, 1 Gall. (U. S.) 4, 13. 492 APPEALS. [§ 359. tinguished from a writ of error, by which errors in matters of law are alone submitted for revision.^ It may, therefore, be said to be a general rule that a writ of error does not lie to re- move a suit in equity to a superior court for review in the absence of statutory provisions enlarging the functions of that writ. § 359. Appeal lies — Final decrees. — An appeal in equity lies only from a final decree and not from a mere interlocutory order. It has been said that "it has not always been easy to decide when decrees in equity are final within this rule, and there may be some apparent conflict in the cases on that sub- 1 Noe V. United States, Hoffman, Land Gas. 242. In Springer v. Springer, 43 Pa. St. 518,519, the court say: "A writ of error cannot, with- out a change of its nature, become an adequate form of review of equi- table remedies, because it brings up only what is properly recorded, in order to assign error in that, and never brings up the evidence except by bill of exceptions, which is a form siot practiced in equity. It is by appeal that equity remedies are re- viewed in a higher court, and that brings up the whole case, and not merely the record of it." In Fouse V. Vandervort, 30 W. Va. 337, 331, the. court say: "The term 'appeal' was unknown to the common law. It belonged wholly to courts of chan- cery, and means In its technical and appropriate sense the removal of a suit, and its final determination, from an inferior court, after final judgment in that court, to a supe- rior court, and placing the case in the latter court, to be again tried de novo upon its merits, just as though it had never been tried in the infe- rior court." Barlow v. Daniels, 25 W. Va. 513. In commenting upon this question the court, in Styles v. Tyler, 64 Conn. 432, 471, quoting from a, former opinion, say: "The under- lying principle involved was that the administration of justice is not safe when the court of last resort for the settlement of the law, in the ex- ercise of an absolute and final power, can render judgment on facts and law so intermingled that its decision is not simply the declaration of the law, but may become the arbitra- tion of the case. . . . The framers of our constitution were familiar with the practice of English chan- cery, as well as with that in the courts of the United States. A party aggrieved by a decree of the lord chancellor could always appeal and have his case reheard on the same evidence in the House of Lords. 2 Madd. Ch. 435. In chancery only were the facts determined by the court; and while England was con- tent to make the verdict of a jury final, in ordinary cases, it refused from the first to accord similar re- spect to the findings of any single judge. The Judiciary Act of the United States, adopted by congress in 1789, and which was largely the work of one of the greatest lawyers and judges of Connecticut (Oliver Ellsworth), followed in the same lines, by restricting the appellate jurisdiction of the supreme court, in actions at law, to the remedy by writ of error, while giving a general appeal from final decrees in equity or admiralty." § 359.] APPEALS. 493 ject." 1 But it is generally held that a decree that fully set- tles the controversy and terminates the litigation between the parties on the merits of the case, leaving nothing to be done but to enforce by execution the determination of the court, is a final decree.'^ In Perri7i v. Lejyper'^ the court held that an order appoint- ing a receiver was a final and appealable decree where it takes from the administrator the entire custody and management of the estate and transfers it to another who was a strano-er The court say: "It would be a serious reproach to the law if a litigant could be thus summarily divested of his legal posses- sion and excluded from it pending what might be a long liti- gation, with no redress whatever except in future restoration, when perhaps it had been demonstrated that the original ex- clusion was unwarranted." Xot only must the decree be a final decree, but it must have been regularly made and entered so that it becomes a record in the cause, for this, it is said, is essential to its completeness and efficiency.* The finality of the decree is determined by the fact of the full and final settlement of the matter in con- troversy ; but it is no less a final decree where there are merely ministerial acts remaining to be done which are referred to a commissioner or master in chancery. The decisive question is, are there any further questions or issues for the future judi];'- ment of the court?' A decree dismissing the bill of complaint, or an order striking a bill from the files, may be said to be a 1 Bostwick V. Brinkerhoff, 106 U. S. To make his purpose a judgment it 3, 4; Grant v. Phoenix Ins. Co., 106 must be entered of record, and until U. S. 429. this shall be done there is nothing 2 St. Louis, etc. R. Co. v. Southern to appeal from." Express Co., 108 U. S. 34; Thomson spamouth v. Klock, 28 Mich. 163; V. Brooke, 76 Va. 160. Lewis v. Campau, 14 Mich. 458; Bene- 3 56 Mich. 352. diet v. Thompson, 2 Doug. (Mioh.) 4 In Logan v. Harris, 90 N. C. 7, the 299. In Hastie v. Aiken, 67 Ala. 313, court say: "The entry of a judg- it was held that where the decree of ment on the record is essential to its the chancellor settles all the equities completeness and efficiency. It is between the parties litigant and this that gives it life and certainty, there remains only a reference to be and perpetuates it as an established had in order to ascertain their ratio memorial. It is not sufficient that of interest in the disputed fund, the the court had taken its resolution as decree was final and would support to what judgment it would enter, — an appeal. this is only in the mind of the judge. 491 APPEALS. [§ 360. final decree, or order, and appealable. And so a decree grant- ing a divorce is held to be final although by the same decree a reference is ordered as to the question of temporary alimony.' Where an assignee in bankruptcy filed a bill to set aside, as fraudulent, conveyances of real estate of the debtor, made be- fore the bankruptcy, and a mortgage put upon the same by the owner after the sale, and praying to restrain the fore- closure of the mortgage, a decree denying the relief asked and ordering any surplus which might remain over and above the mortgage debt after sale on foreclosure, paid to the complain- ant, was held to be final and appealable. The court say: " We think this appeal was well taken. The decree settled every question in dispute between the parties, and left nothing to be done but to complete the sale under the proceedings in the state court for foreclosure, and to hand over any surplus of the proceeds there might be after satisfying the debt due as stated in the process under which the sale was made." ^ But where the decree or order is one within the discretion of the court making it, or where it is simply interlocutory and a further determination of the cause is to be made, such orders and decrees are not appealable except so far as appeals there- from may be allowed by statute.' § 360. By whom talieii. — An appeal can only be taken by parties who are affected by the decree appealed from ; there must be some substantial rights of the parties to which the ap- peal would be prejudicial. An appeal will not be allowed in a mere fictitious case, and the court will not entertain mere speculations of parties or feigned issues; and so a merely fic- titious case to test the rights of parties who do anj'^ particular thing will not be entertained by the appellate courts.'' It seems to be a general rule that all parties in the suit who are inter- 1 Webster v. Hitchcock, 11 Midi. 111. 319; Attorney-General v. Conti- 56. nental Ins. Co., 90 N. Y. 45. Orders - Ex parte Norton, 108 U. S. 237, refusing to allow amendments not 843. In Fleenor v. Driskill, 97 Ind. appealable. Wiggins v. McCoy, 87 37, an order of sale and partition was N. C. 499; New York Ice Co. v. In- held to be final and appealable, surance Co., 33 N. Y. 357. A motion Keepfer v. Force, 86 Ind. 81; Savan- for continuance is addressed to the nah V. Jesup, 106 U. S. 563. sound discretion of the court and is 3 GriSee V. Mann, 63Md. 348; Eme- not appealable unless there is an ric V. Alvarado, 64 Cal. 539; Carpen- abuse of discretion. Wilson v. City ter V. Reynolds, 58 Wis. 666; Inter- of Wheeling, 19 W. Va. 333. national et al. v. Jenkins et al., 109 * Where a trustee attempted to § 361.] APPEALS. 495 ested in the reversal of the decree may be parties to an appeal. And the rule in this respect is somewhat different in case of joint parties in courts of equity from the rule prevailing in courts of law. In the equity court any party whose rights or interests are injured or prejudiced by the decree can claim an appeal, otherwise irreparable injury might be inflicted by an erroneous decree and for which he would have no redress, for the decree may affect one of the parties injuriously and erro- neously, while as to other parties it may be entirely right and satisfactory. In the case of Todd v. DanieV the court say: "The proper rule in cases of this sort, where there are various defendants, seems to be that all the defendants affected by a joint decree (although it may be otherwise where the defendants have sep- arate and distinct interests, and the decree is several and does not jointly affect all) should be joined in the appeal; and if any of them refuse or decline upon notice and process (in the nature of a summons and severance in a writ of error) to be issued in the court below, to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account; and the appeal as to the others be pronounced to be deserted, and the decree of the court below as to them be proceeded in and exe- cuted." The procedure, however, in this respect has under- gone some changes and has been modified more or less by statutes and rules of court, but the right of a party who con- sidered himself aggrieved or injured by the decree in this re- spect has not been limited, but enlarged, so that a party can- not be deprived of his privilege to have the case reheard by the appellate court by the mere refusal of those who are joint parties with him. § 361. The procedure in obtaining and perfecting an ap- peal The object of an appeal is to obtain a rehearing and determination of the cause in the appellate court upon the settle the rights of parties to certain and pass upon the construction of property under a will by means of the will. Lincoln v. Aldrich, 141 filing a fictitious account in the pro- Mass. 343, 5 N. E. 517; Fletcher v. bate" court, from the allowance of Peck, 10 U. S. (6 Cranoh), 87; Blake which an appeal was taken to the v. Askew, 76 N. C. 335. supreme court, the appellate court 1 16 Pet. (U. 8.) 531, 523. refused to take notice of the appeal 496 APPEALS. [§ 361. same pleadings and proofs which were presented to and con- sidered by the court that rendered the decree. The procedure, however, must be such as will present the same case to the su- perior court for its consideration that was heard by the in- ferior court. The hearing of the appeal is said to be a trial of the cause. (ie novo, but upon the same proofs and the same pleadings upon which the court below rendered its decree. There can be no change in the pleadings, nor can there be any other proof taken or presented to the appellate court. The procedure or manner of removing the cause from the lower court differs in different jurisdictions. In the United States court the proofs are taken by commissioners or masters in chancery and certified to the court which is to hear the cause, and in an appeal from these courts a transcript of the record that is sent to the appellate court for hearing includes the pleadings and proofs which are presented to the lower court. In many of the state courts the proofs upon the allowance of an appeal and proper notice are settled by the judge or chan- cellor who tried the cause, in which case much of the imma- terial matter contained in the trial is eliminated. But, as a general rule in all jurisdictions, a certificate of the court must be added to the record that it contains all the proofs upon which the case was tried and determined. When the case is settled it becomes a part of the record and is transmitted to the appellate court to be used upon the ap- peal. And so when the cause comes on to be heard in the appellate court it is tried and determined upon the same proofs and the same record that was before the lower court, and the appellate court determines the questions of fact involved as well as the questions of law.' An appeal of the cause has the effect to deprive the lower court of any jurisdiction over the subject-matter and issues between the appellant and the ap- pellee; and so it has been held that a motion to dismiss a cause after an appeal has been taken must be made in the appellate court and not in the trial court. 1 In State v. Orwig, 37 Iowa, 528, the merits. We are clearly of the 530, the court say: "The question is opinion that, upon such an appeal, whether, when a final decree is ap- the trial must be de novo upon tlie pealed from, the case may be tried merits.'' Eeese v. Barker, 85 Ala. upon alleged errors in interlocutory 475; Larison v. Polhemus, 39 N. J. proceedings, and not de novo upon Eq. 303, 306. § 362.] APPEALS. 497 In Railway Co. v. Chamiers^ the court say : " The respondent had no jurisdiction to dismiss the appeal. The effect of filing the claim for appeal, and the bond, was to transfer the cause to this court, and the motion to dismiss should have been made here. Such appears to be the uniform practice." And so it has beien held that an entry of an order dismissing the cause in the trial court after an appeal was taken was a nullity.^ § 362. Dismissal of the appeal.— If the appeal is irregular and does not comply with the requirements of the practice for taking and perfecting it, the appellee may, on motion, have the appeal dismissed ; or the appellate court may on its own motion dismiss the appeal where it appears that it has no jurisdiction,' or that the appellant has no right to appeal. Among the reasons for dismissing an appeal are the follow- ing : For lack of prosecution ; for want of jurisdiction ; for failure to present a record of the proceedings in the court below; for want of actual controversy, or for irregularities in settling the case or obtaining the record of the lower court. The jurisdiction of the appellate court may depend upon the nature of the cause appealed or the regularity of the proceed- ings in appealing the cause. If the cause be of such a nature that the appellate court has by law no jurisdiction over its sub- ject-matter, — as where an appeal is taken from a non-appeal- able judgment, decree or order, — the appeal would be void,^ 189 Mich. 5, 7. 104 N. C. 330, where it appeared that ^Freeman v. Henderson, 5 Cold, the appellant failed for two terms to (Tenn.) 647; Stewart v. Taylor, 68 prosecute his appeal, it was held suf- Cal. 5. ficient ground to dismiss it. And ^In Bienenfeld v. Fresno Milling whenthesupremecourtoftheUnited Co., 83 Cal. 425, 426, the court dis- States determines that it is unneces- missed the appeal on its own motion sary to decide any federal question, and in its opinion said: "Not having and it appears that the state court jurisdiction of the appeal, we must based its decision on a local question, dismiss it. The only embarrassment the appeal will be dismissed on proper we experience in arriving at this de- application. Eustis v. BoUes, 150 termination is caused by the omis- U. S. 361; Winter v. Montgomery, 156 sion of respondent to raise the point; U. S. 385; Wilcox v. Wilcox, 63 Vt. but we cannot proceed further in a 137, 21 Atl. 423; Hart v. Buroh, 130 case after discovering that we have 111. 436, 22 N. E. 831. no jurisdiction, whether the point is * United States Sav. etc. Co. v. raised by counsel or not." Banking Ahrens, 50 Minn. 332; Clayton v. Ass'n V. Insurance Ass'n, 102 U. S. Mitchell, 33 S. C. 599. 131. In Wiseman v. Commissioners, 32 498 APPEALS. [§ 362. and could not be considered, even by consent of the parties, for jurisdiction cannot be conferred by consent. But if the appeal has been regularly taken, and the question brought up is one within the jurisdiction of the appellate court, then it has been held that that court has no power to dismiss the appeal, for the jurisdiction of the court is established by law for the benefit of the appellant, and it is beyond the authority of the court to deprive him of a determination of his cause in that court.' But if the irregularity in perfecting the appeal is entirely due to the fault or neglect of the officials of the court, the appeal will not be dismissed. As where it appeared that the clerk of the court withheld the transcript on appeal, and it was entirely because of his neglect that it was not seasonably transmitted to the appellate court, the court refused to dismiss the appeal.^ Failure to prosecute the appeal is good ground for its dis- missal. As where the appellant fails to appear when the case is called for argument in the appellate court, and where an un- usual length of time has elapsed and it can reasonably be pre- sumed that the appeal has been abandoned ; or where a greater time has elapsed than is allowed by the rules of court, and the case has not been brought on for argument, the appeal may be dismissed. And so where there has ceased to be any contro- versy between the parties as to the subject-matter of the suit appealed — as where one party has sold out to the other, who is prosecuting it for his own benefit, — in such case the court may on its own motion dismiss the suit.' Or where it appears that there is no real dispute, but that the submission is made for the simple purpose of ascertaining the law, the appeal will be dismissed.* It is generallj' held that appellate courts possess authority to make necessary rules for the transaction of business and to regulate procedure on appeals, and that the power to make such rules carries with it the power to enforce them, even by the penalty of dismissal for non-compliance.' 1 Carlson v. Superior Court, 70 Cal. * Berks Co. v. Jones, 31 Pa. St. (9 630. Har.) 413. 2 The Palmyra, 13 Wheat. (U. S.) 10. 6 Coffey v. Dubois, 35 Mo. App. 96; 3 East Tenn. etc. Co. v. Southern, Geraty -v. Druiding, 44 111. App. 440. etc. Co., 135 U. S. 695; American Appeal dismissed for failure to file Freehold, etc. Co. v. Williams, 47 La. an abstract as required by rule. Ann. 1380. Where an appellant fails to file brief §§ 363, 36i.J APPEALS. 499 § 363. Notice of motion to dismiss appeal. — Due notice to the adverse party of notice of motion to dismiss an appeal must be given, and be in compliance with the rules and practice of the court. The notice must specify the time when it will be heard, and proof of service of the motion should be filed Avith the court. The motion must specify with particularity the ground relied upon for dismissing the appeal, otherwise it will be overruled.' And so where the motion contained sim- ply an'unveritied charge that the transcript was defective by fraud of the appellant, it was held that a dismissal of the appeal would not be justified.^ And a motion to dismiss an appeal where the only reason assigned is that the court has no jurisdiction to hear and determine it will not be entertained.' The grounds relied upon for making a motion must be stated with reasonable particularity and certainty, and must be suffi- ciently specific to give to the opposite party and the court a clear understanding of them. So clear and specific should the statement of the reasons be, that the court could make its order without further amendment or explanation of the motion, and the opposite party meet and answer the allega- tions and reasons contained in it, if he has any defense to make. § 364. The hearing. — The cause is heard in the appellate court upon the same pleadings and proofs which were submitted to the lower court. As we have seen, a transcript of the record, including the pleadings and the proofs in the cause, is trans- mitted to the appellate court. But the court usually, by rule, provides that the pleadings and proofs should be printed so that each of the judges of the court, the solicitors upon the opposite side and the reporters may have a copy of the whole case. Counsel for the respective parties are also by rule required to make and submit for the hearing a printed brief and argu- ment, containing the claims made by counsel and the author- in support of his assignments of is not sufficient. De La Cuesta v. error the appeal was dismissed. Car- Calkins, 113 Cal. 396, 41 Pao. 1098. riger v. Kennedy, 134 Ind. 107; Rum- s.Scholfleld v. Pope, 103 111. 188; felt V. Canal, etc. Co., 83 Cal. 649. Garrett v. Kansas City Coal Co., Ill iScholfleld V. Pope, 103 111. 138. Mo. 279, 30 S. W. 35; Archer v. Long, 2Edson V. McGraw, 37 La. Ann. 3.5 S. C. 585, 14 S. E. 34; Healy v. 394. A motion which is uncertain Seward, 5 Wash. 319, 31 Pao. 874. 500 APPEALS. [§ 365. ities upon which they depend, a copy of which is furnished the judges and officers of the court and the opposite solicitor. Upon this printed record, and the briefs and arguments of. so- licitors, the cause is heard by the appellate court. No other proof is submitted upon the hearing than that in the transcript of the record of the court below.' The practice as to preparations for the hearing, the manner of submitting the cause and the procedure in general in the appellate court is fixed by rules of practice in the particular jurisdiction. § 365. The decision and decree of the court. — The cause be- ing submitted, the appellate court will render its opinion and order a decree in the cause. This decree may entirely dispose of the case, overruling or affirming the decree of the court be- low, or modifying it and directing some further proceeding by way of carrying out its orders.^ The appellate court, as has already been said, considers the facts involved in the case as well as the law, but as to questions of fact the appellate courts are generally inclined to give weight to the findings of the trial court where that court had the party and witnesses before it, and it is said that " that deference will, in doubtful cases, turn the scale." But where the court is satisfied that the trial court erred in its findings of facts, the court will de- cide for itself.' 'In Kerslake v. Cummings, 180 was affirmed. People v Barber, 134 Mass. 65, 61 N. E. 760, where the case Cal. xix, 66 Pac. 725. in the court below was heard upon 3j)j-osten v. Mueller, 103 Mo. 625. an agreed statement of facts which In Eoyle v. Jones. 78 Mo. 403, where were referred to, and on evidence the facts were found by jury, and which it sets forth, the court held afterwards the court reached the that an objection that the only same determination, having had the question is whether the decree fol- witnesses before it, the appellate lows the frame of the bill was un- court held that the findings should tenable. Jones v. Cleary (Neb., not be overturned except for more 1902), 89 N. W. 386. urgent reasons than that which had 2 Brownell Co. v. Critohfleld, 96 111. been reached. Stebbins v. Timm, 96 App. 84, 64 N. E. 332. And where Mich. 55; Darling v. Jewell, 96 Mich, the appellant did not file a brief on 187; Coon v. Cronk, 131 Ind. 44, appeal and made no appearance at Thallmann v. Thomas, 49 C. C. A. the calling of the case, the judgment 317, 111 Fed. 277; Harding v. Hart, 113 Fed. 304. CHAPTEE XVIII. REMEDIES IN EQUITY. § 366. The object of the chapter. 367. Classification of equitable remedies. 368. Statutory actions. § 366. The object of the chapter. — Thus far we have con- sidered briefly the jurisdiction and powers of the court of equity, the pleadings and the procedure of an ordinary equity case. "We now call attention to equitable remedies and notice the pleadings and procedure applicable to them? It would be a difficult and interminable task to discuss all the actions and proceedings in detail of which the court of equity will take cognizance, and so we confine our discussion to those actions and proceedings which are usual and more generally invoked. § 367. Classification of equitable remedies. — Equitable remedies may be classified or arranged under five general heads or classes according to the well known objects and purposes of each of the actions and remedies named. First. Eemedies seeking relief, but which are in their nature and purpose administrative and protective; admmistrative by way of assisting the court in carrying out its orders and de- crees, and protective in the sense of preserving to the parties their rightful and legal interests in the subject of the litigation. Under this may be classified actions of interpleader and ac- tions or proceedings for the appointment of a receiver. Second. Remedies which are mandatory, prohibitory and protective. Under this head may be found injunctions, which are mandatory, directing the performance of a specified act; pro- hibitory and protective, in that they prohibit the performance of certain acts and protect the plaintiff from threatened wrong or injury. Third. Eemedies seeking relief by establishing primary rights, interests or estates, whether legal or equitable. In this class may be grouped actions for assignment of dower; for 502 EEMEDIES IN EQUITY. [§ 367. partition of property, and those actions which in their nature are auxiliary in that they so settle the rights of the parties that their legal status may be determined, as, for example, ac- tions for reformation and re-execution ; for cancellation, sur- render or discharge of instruments. Fourth. Eemedies for the enforcement of obligations. As, for example, actions for the specific performance of contracts; for the declaration and enforcement of trusts, and obligations arising from fiduciary relations; for contribution; for subro- gation, or exoneration ; for dissolution of partnerships ; for an accounting, and those actions where incidentally and for a more complete remedy damages may be awarded. Fifth. Remedies for the enforcement of liens, or subjecting certain specific property to the payment of obligations. In this class may be found actions for the foreclosure of mortgages or pledges, and incidental thereto the right of redemption and bills to redeem; for marshaling of securities; for enforcing equitable liens; creditors' bills and bills in aid of execution.' 1 In order to classify and analyze equity actions and more clearly dis- cover their nature and proper use, the grouping of actions adopted by Mr. Poineroy in his work on Equity Jurisprudence has to some extent been followed. Mr. Pomeroy ar- ranges equity actions into eight sep- arate groups as follows: "(1) The first group contains those remedies which are purely ancillary and pro- visional, which do not affect any primary right nor confer any ulti- mate relief. (2) The second group consists of remedies purely prevent- ive. (3) The third group consists of remedies which indirectly establish or protect interests and primary rights, whether those interests and rights are legal or equitable. (4) The fourth group consists of remedies by which estates, interests, and primary rights, either legal or equitable, are directly declared, established or re- covered, or the enjoyment thereof is fully restored. (5) The fifth group consists of remedies by which equi- table obligations are specifically and directly enforced. (6) The sixth group consists of remedies in which the final relief is pecuniary, but is obtained by the enforcement of a lien or charge upon some specific property or fund. (7) The seventh group consists of remedies in which the final relief is wholly pecuniary, and is obtained in the form of a general pecuniary recovery. (8) The eighth group contains certain addi- tional remedies which have been created and conferred by statute in several of the stat^^s, and which therefore do not belong to the orig- inal jurisprudence of equity nor to the general equitable jurisdiction." 3 Pomeroy, Eq. Jur., sea 1316. Judge Story has classified equity actions, following somewhat Mitford and Cooper. Story, Eq. PI., §§ 19, 20, 31. § 368.] EEMEDIES IN EQUITY. 503 § 368. statutory actions. — There are many statutory ac- tions which cannot be classified with the original equitable remedies, as they are not founded upon equitable jurisdiction, but have their origin, and rely for their jurisdiction and pro- cedure, upon statutory enactments. Among these are suits for divorce; for separate maintenance; to dissolve and wind up the afifairs of a corporation ; to remove corporate officers for fraud and misconduct in their corporate office and direct the filling of the vacanc}!- on account of such removal ; for fixing liability upon stockholders for the payment of certain debts or obligations of the corporation, as for materials and labor under certain circumstances; for the enforcement of mechanics' liens, and many other remedies that might be mentioned. These statutory remedies are equitable rather than legal in their nat- ure, because the law court could not by its narrow and fixed jurisdiction and procedure furnish the necessary relief; while equity, because of its broad and fiexible powers, can more fully determine and administer the rights and interests involved. CHAPTER XIX. REMEDIES NOT SEEKING RELIEF, BUT WHICH ARE IN THEIR NATURE AND PURPOSE ADMINISTRATIVE AND PROTECTIVE. Section I. Interpleader, § 369. The nature and object of the action. 370. The complainant a mere stake- holder, having no interest in the matter in controversy. 371. Seeming exceptions. 372. As to title of claimants to the property, obligation orthing in controversy. 373. The real office of interpleader. 374 Injunction to protect plaintiff from a multiplicity of suits. 375. Plaintiff should tender per- formance of the duty or ob- ligation or secure it. 376. The parties to the bill of inter- pleader. 377. The bill of complaint 378. The prayer. 379. Verification. 380. Defenses to bills of inter- pleader. 381. The replication, 382. The hearing and decree. Section IL Receivers. § 383. Receivers — Nature and offioe of, in equity suits. 384. Definition andsomerequisites. 385. Jurisdiction to appoint. 386. Must be in pending suit. 387. In what cases appointed. 388. Some special cases. 389. Receivers over real property. 390. The application for appoint- ment. 391. The order on application for appointment. 392. The title or right of possession and control of the receiver. 393. The New York rule. 394. Something of the powers, du- ties and obligations of the receiver. 395. Foreign and ancillary re- ceivers. 396. Interference with receivers — Contempt of court. 397. Procedure in cases for con- tempt. Section I. Inteeplbadee. § 369. The nature and object of the action. — Where two or more persons, by different or separate interests, claim from another the same thing, duty or obligation, and the person from whom the claim is made does not know to which of the claimants he ought of right to deliver the thing, or render the duty or obligation, and fears because of their conflicting de- mands he may suffer injury, he may file a bill of interpleader and compel the different claimants to interplead and present their several claims for the adjudication of the court. § 370.] REMEDIES NOT SEEKING RELIEF, ETC. 505 In Ireland v. Kelly^ the court say: "The essential incident of the equity which justifies an interpleader is that the com- plainant, so far as his own acts are concerned, is under but a single liability to pay or deliver the fund or thing in dispute, and yet he is called upon to pay or deliver to two or more con- testing claimants. The complainant in such cases having no interest in the fund or thing in dispute, it is inequitable that he should be compelled to take the risk of determining which of the conflicting claims is superior." This condition of dis- puting claims upon the same fund may arise from so many causes that it is difficult to define any limitation which must deprive the holder of the fund of his right to be protected." It has been said, and is no doubt the rule, that it is not nec- essary that the party should decide at his peril either close questions of fact or nice questions of law, but it is sufficient if there is a reasonable doubt as to whom the debt belons's.^ § 370. The complainant a mere stakeholder, having no in- terest in the matter in controversy, — The plaintiff should have no interest in the matter in controversy; he must be a 1 60 N. J. Eq. 308, 313, 47 Atl. 51, In this case the court further say: "The fact that one party claims be- cause of an admitted contract with the holder of the fund, and the other by some claimed arrangement with the admitted contractor, will not exclude the holder of the fund from his right to be protected. All claims arising under equitable as- signments are within this class. Those arising under building con- tracts are quite familiar. In these cases the owner (the holder of the fund) only contracts to pay the builder who claims payment. But perhaps half a dozen other persons assert claims on the same fund upon what they contend are equi- table assignments from the builder, or other rights against him, in the creation of which the holder of the fund has no part. It is common practice in such cases for the owner to pay the money into court and file a bill for interpleader to compel those who make these conflicting claims on the fund to settle their disputes between themselves. Those cases, many of them, do not set up any contractual relation between the disputants and the holder of the fund, except as may have arisen by operation of law because of some act of the builder or of the claimants themselves." Packard v. Stevens, 58 N. J. Eq. 489, 46 Atl. 250; American Press Ass'n v. Brantingham, 68 N. Y. S. 285. 2 Merchant et al. v. Insurance Co., 68 N. Y. S. 406. Perkins v. Mont- gomery, 70, N. Y. S. 186. held that it is insufficient to sustain a bill of in- terpleader that rival claims have been made for the fund. There must be a further showing that a bona fide controversy existed between the rival claims. To support a bill of inter- pleader it must show that there are two or more persons making the same claim against the complainant. Brackett v. Graves, 51 N. Y. 8. 895. 50G REMEDIES NOT SEEKING BELIEF, ETC. [§ 370. mere stakeholder, standing entirely indifferent as to the con- flict between the claimants, and being ready and willing at all times to surrender the entire matter in dispute; to pay the debt; to render the duty or perform the obligation. Nor can he in any way mingle a demand of his own with the demands of the claimants; he must be in such a position that when the decree is made that the claimants interplead, he will be entirely without the controversy. His position must be one of con- tinued disinterestedness and impartiality.' The amount due from the plaintiff cannot be a matter of controversy between plaintiff and claimants. The property or subject-matter of the interpleader must be definite and certain in character. And where in the proceedings it was disclosed that there was a con- test between the plaintiff and defendants as to the amount of the debt, it was held that the bill could not be maintained.^ It is also essential that the partj' seeking relief has incurred no independent liability to either claimant, and that he claims no interest whatever in the matter.' In Williams v. Matthews'' it was said: "To sustain such a bill it is necessary that the complainant have no interest in the thing in controversy, and he should, in his bill, state his own rights so as to negative any such interest." The court further held that the bill should allege sufficient facts to dem- onstrate to the court that there was a certain amount due with reference to which the complainant was simply a stakeholder, and that if it appears upon the face of the bill that it is not a proper case for interpleader a demurrer will lie. In Wakeman v. Kingsland^ some of the defendants, beside answering the bill of complaint, filed cross-bills asking for af- firmative relief. The complainant moved to strike out the cross-bills on the ground that in a strict interpleader suit no such defense could be made, and the reasons assigned were that such suit could not be maintained unless it was shown 1 Wing V. Spaulding, 64 Vt. 83. Ebbinghaus, 110 U. S. 568; Partlow 2 Mitchell V. Hayne, 3 Sim. & S. 63; v. Moore, 184 111. 119; Ladd v. Chase, Bridesburg Mfg. Co.'s Appeal, 106 155 Mass. 417. Pa. St. 376; Crass v. Memphis, etc. 'Sprague v. Soule, 35 Mich. 85; Ry. Co., 96 Ala. 447; New England, Richardson v. Belt, 13 App. D. C. etc. Mfg. Co. V. Odell, 50 Hun (N. Y.), 197. 379; Du Bois t. Union Dime Sav. ■•47 N. J. Eq. 196, 198. Inst., 89 Hun (N. Y.), 382; Killian v. 5 46 N. J. Eq. 113, 116. § 3 71. J EEMEDIES NOT SEEKING RELIEF, ETC. 507 that the complainant stood in a position of perfect neutrality towards all the defendants; that the complainant must occupy the position of an indifferent stakeholder, and if it were made to appear that he is under any personal obligation to one of the defendants in respect to the su^jject-matter of the suit, the bill as to that defendant would be dismissed. As to this the court said: "That this view is correct would seem, from the nature of the remedy and the character of the proceeding, to be uncreniable. A strict interpleader bill can only be exhib- ited where two or more persons claimed the same debt, duty or other thing from the plaintiff by different or separate inter- ests; and he, not knowing to which of the claimants he ought of right to render the 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 debt, duty or other thing belongs." It was said by Lord Cottenham, in Iloggart v. Cutts,^ in dis- cussing interpleader: "It is where the plaintiff says I have a fund in my possession in which I claim no personal interest and to which you, the defendants, set up conflicting claims; pay me my costs and I will bring the fund into court, and you shall contest it between yourselves." And so it is that the case must be one in which the subject-matter is a contest be- tween two parties or more, and which the litigation between the parties will decide their respective rights. Eut the plaint- iff must not favor either party nor lend himself in any way to further the claim of either to the fund in dispute. § 371. Seeming exceptions. — While it is a rule that the bill of interpleader, strictly so called, will only lie where the com- plainant claims no interest in the subject-matter of the suit, there appears to be at least a seeming exception to this rule in cases where, to ascertain and establish his own right to the property or subject of the suit, the complainant is permitted to file a bill in the nature of a, bill of interpleader. An example is given: where the "plaintiff is entitled to equitable relief against the owner of the property, and the legal title thereto is in dispute between two or more persons so that he cannot as- 1 Craig & Phillips (Eng. Ch.), 198, 204. 508 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 372. certain to which it actually belongs, he may file a bill against the several claimants in the nature of a bill of interpleader for relief." ' Where two parties were claiming to be the owner of a cer- tain bond and mortgage security given by the complainant, the complainant was allowed to file his bill in which he prayed that the defendants might interplead and settle the matter be- tween themselves, that the bond and mortgage might be de- livered up and canceled upon his paying into the court the amount due thereon, and that the proper parties might execute a discharge of the bond and mortgage that the same might be canceled of record. The chancellor said: "A bill of inter- pleader, strictly so called, is where the complainant claims no relief against either of the defendants, but only asks that he may be at liberty to pay the money or deliver the property to the one to whom it of right belongs, and may thereafter be protected against the claims of both. In such cases the only decree to which the complainant is entitled is a decree that the bill is properly filed ; that he be at liberty to pay the funds into court and have his costs; and that the defendants inter- plead and settle the matter between themselves. But a bill in the nature of a bill of interpleader to redeem and to be let into the possession of mortgaged premises may be filed." And the court decreed that the mortgage in controversy should be discharged ; that the bonds and notes should be given up and canceled, and that the money paid into court should abide the final decision of the cause between the other defendants.^ § 372. As to title of claimants to the property, obliga- tion or thing in controversy. — It seems to be a requisite to the filing of a bill of interpleader that there should be IS Danl. Ch. PI. &Pr. (6th ed.)1572; title is in dispute, so that the com- 2 Stoiy, Eq. Jur., sec. 824. plainant cannot ascertain to which 2 Bedell v. Hoffman, 2 Paige Ch. of the parties to that controversy (N. Y.) 199, 200. In Mohawk, etc. R. the property really belongs, he may Co. V. Clute, 4 Paige Ch. (N. Y.) 384, file a bill, in the nature of a bill of 392, the court say: " Where there are interpleader, and for relief, against other grounds of equitable jurisdic- both of the claimants.'' Parks v. tion, however, as in those cases Jackson, 11 Wend. (N. Y.) 443; Thom- where the complainant is entitled to son v. Ebbets, 1 Hopk. Ch. (N. Y.) equitable relief against the legal 272. owner of the property, if the legal § 372.] EEMEDIES NOT SEEKING BELIEF, ETC. SOd privity of title or contract between the claimants, and where such privity does not exist — where the titles are independent and not derived from the same source, but each is asserted as wholly paramount to the other — the suit for interpleader cannot be maintained. While this doctrine of privity of es- tate or title between the claimants has met with considerable opposition, the weight of authority seems to still uphold the rule. In Gibson v. Ooldthwaite^ the court, discussing this question, say: " In the cases of adverse independent titles, it is said the true doctrine seems to be, that the party holding the property must defend himself as well as he can at law; and he is not entitled to the assistance of a court of equitj'; for that would be to assume the right to try merely legal titles, upon a con- troversy between parties, where there is no privity of contract between them and the third person who calls for an inter- pleader." And in Kijle v. Coal Co} it was said that " one of the essential elements of the equitable remedy of interpleader, as laid down, is that all the adverse titles or claims to the thing or debt, in reference to which the bill is filed, must be dependent, or be derived from a common source." In Snodgrassv. Butler^ it was held that a bill of interpleader will not ordinarily lie, except in cases of privity of some sort between the parties, as of estate, title or contract, and that if the several claimants assert rights under adverse titles which are of different natures, such rights cannot properly be liti- gated in an action of interpleader. The court say: " The rule finds an apt illustration in the case of a tenant, who can only interplead those persons who claim rent in privity of contract or tenure; as where the conflict is between the original lessor and one claiming the rent as assignee. But if a stranger claims under title paramount, there is an absence of privity, and the suit cannot be maintained." 17 Ala. 281, 290. An early leading 3 54 Miss. 45, 49; Wells, Fargo & Co. English case which is generally v. Miner, 35 Fed. 533; Third Nat. quoted and relied upon is that of Bank v. Skillingsetal., 133 Mass. 410: Crawshay v, Thornton, 2 Mylne & North Pac. Lumber Co. v. Lang, 38 Craig, 1. Pearson v. Cardon, 2 Russ. Greg. 346, 43 Pac. 799, 52 Am. St. Rep. & Mylne, 606. 780; First Nat. Bank v. Bininger, 26- 2113 Ala. 606; Stone v. Reed, 152 N. J. Eq. 345. Mass. 179. 510 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 373. But in Crane v. McDonald'^ the doctrine was somewhat questioned and the court in its opinion said: "While the early- authorities were exacting upon this subject, many of the later cases have been less rigid, and some have ignored it alto- gether. The doctrine seems to have been abrogated in Eng- land, partly by statute and partly by judicial decisions. Mr. Pomeroy, referring to the rule, says that 'it is a manifest im- perfection of the equity jurisdiction that it should be so lim- ited. A person may be and is exposed to danger, vexation and loss from conflicting independent claims to the same thing, as well as from claims that are dependent, and there is certainly nothing in the nature of the remedy which need pre- vent it from being extended to both classes of demands.' It is not surprising, therefore, that courts have sometimes ignored this doctrine in their decisions, or have been ready to admit exceptions to its operation." ^ § 373. The real office of interpleader. — The real office of an interpleader is not to protect the plaintifp against doubtful liability, for if he has in any way made himself liable, even for the same demand, to two or more claimants, an inter- pleader will not be supported. It is essential that the plaintiff is in fact liable to onl}' one claimant for the payment of the amount, or performance of the duty or obligation, but to which one it is doubtful. The true reason for supporting an inter- pleader is to shield the party from the annoyance and expense incident to the defending of two or more suits from several claimants of the same thing. As was said by the vice-chancel- lor in Crawford v. Fischer: ^ " The office of an interpleading suit is not to protect a party against a double liability, but against double vexation in respect of one liability. If the circumstances of a case show that the plaintiff is liable to both claimants, that is no case for interpleader. It is of the essence of an interpleading suit that the plaintiff shall be liable to one only of the claimants; and the relief which the court affords him is against the vexation of two proceedings in a matter which may be settled in a single suit." The ground of jurisdiction seems to be the apprehension of danger to the 1 118 N. Y. 648. Co. v. White, 44 Mich. 25; Parley v. 2 Pomeroy's Eq. Jur., sec. 1324, note. Blood, 30 N. H. 354; Newhall v. Kas- n Hare (Eng.), 436, 441; Mich. etc. tens, 70 111. 156. § 374.] EEMEDIES NOT SEEKING RELIEF, ETC. 611 plaintiff from the doubtful and conflicting claims of the sev- eral parties as between themselves; claims so conflicting that the plaintiff is unable to determine to whom to pay the debt or render the duty, and is in constant danger of annoyance by reason of threatened litigation. And in this connection, and by way of illustrating the fact that there must be real or at least reasonable doubt as to whom the debt should be paid, or the duty or obligation rendered,^ it is said that if this doubt does not exist the court will not assume jurisdiction, for if a claimant is really and justly entitled to the debt, duty or other thing, he should not be subjected to the delay and expense of a chancery proceeding without his consent before he can be allowed to receive what is justly his own.^ § 374. Injunction to protect plaintiif from a multiplicity of suits. — The bill of interpleader is for the protection of the plaintiff who stands neutral as between the parties claimant. He confesses his liability to pay the debt, or perform the duty, but to whom he is liable he is in doubt. To pay the debt to one of the claimants would but subject him to litigation Avith other claimants; and so he may bring the amount of money into court and leave it there to be paid over as the court may direct; or he may deposit it in bank subject to the order of the prevailing claimant; or he may tender performance of the obligation in such a way that the prevailing claimant may have the benefit of it; that is to say, if it be the conveyance of real property, he may make his several deeds to the several defendants and deposit them with the court or in a bank to be delivered upon the order of the court to the prevailing claim- ant, and when this is done and litigation is threatened by dif- ferent claimants, he may, on filing his bill for interpleader, 1 Atkinson v. Manks, 1 Cow. (N. Y.) litigate their demands and submit 705; Dorn v. Fox, 61 N. Y. 364. to the decision of the court their re- - Bedell v. HoiTman, 3 Paige(N. Y.), spective rights. But a bill of inter- 199. In Arn v. Arn, 81 Mo. App. 133, pleader rests upon the fundamental 139, quoting from Hayman v. Cam- principle that the complainant is a eron, 46 Miss. 735, it is said: "That mere holder of a stake which is con- where there are two or more claim- tested for by the other party. If ants of a debt, or other matter, a the complainant seeks relief in the party may resort to chancery for his premises against either party, or protection against conflicting claims asserts a right or claim against and the harassment of .several suits, either or both of them, it would be and insist that the claimants shall fatal to his bill." 512 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 374:. have an order for a temporary injunction against the several claimants enjoining them from proceedings against him until the further order of the court, and thus may have the contro" versy as to hira settled by the court of chancery upon his bill of interpleader. So in an action by an executor, individually and in his official capacity, to compel an interpleader between persons claiming the special fund as trustees thereof adversely to the estate, and who had brought an action against the exec- utor to recover the fund, and other persons claiming the same as distributees of the estate, the plaintiff having paid the money into court under its order, it was held that, upon filing a suit- able bond as provided by law and approved by the court, the defendants should be enjoined from undertaking in any way whatever to enforce the decree of distribution pending the ac- tion. The court said: " The plaintiff, however, it appears, does not dispute the claim of the appellants, but seeks protection from the demands and claims of other defendants for the same money, and who are not bound by the decree. Under such circumstances it would seem but just that the plaintiff, as ex- ecutor, should not be compelled to defend said action and sub ject himself, perhaps, to liability, not only to pay said money a second time, but also the costs of litigation." ^ The injunction is applied for in the usual manner, but it is said that it need not be supported by an affidavit of merits; the bill, no doubt, which sets forth the facts upon which the interpleader is based, would be a sufficient showing as to merits. The money or property, however, in dispute should be secured, either by a payment into court or in some other manner satisfactory to the court, and the injunction should be framed in such a way that it would not deprive the defend- ants of any legal rights in the matter. By injunction, pro- iFox V. Sutton, 137 Cal. 515, 519; granted, and it was held that an in- Jaraes v. Sams, 90 Ga. 404, 17 S. E, junction should issue restraining the 963. Where pending a suit by ored- prosecution of the actions pending itors of the holder of a certificate of the termination of the interpleader, deposit issued by a firm of bankers, Weikel v. Gate, 58 Md. 105; Fitzger- another suit was brought against aid v. Elliot (N. J. Eq., 1889), 18 Atl. them by the present holder of the 579; Mercantile Deposit Co. v. Di- certifioate, who took it after the tor- mon, 73 Hun (N. Y.), 638; Fowler v. mer suit was brought, an order Lee, 10 Gill & J. (Md.) 358. interpleading the claimants was §§ 375, 376.] EEMEDIES NOT SEEKING EELIEP, ETC. 513 ceedings in courts of law, and proceedings in courts of equit}', may be restrained, even though instituted in a different court than the one in which the interpleader is pending. § 375. Plaintiff should tender performance of tlie duty or obligation, or secure it. — Before the court will make a decree that the party claimants interplead, it requires some- thing more than the mere allegations of the plaintiff that he is a disinterested party and is willing to perform the duty or obligation, or pay the money that is in dispute to the party found by the court to be entitled thereto. As a condition pre- cedent to such a decree, the plaintiff must not only allege the willingness to pay, but he must make some actual tender of performance upon his part, and as the court may direct. If it is money, he should pa.j it into court; if it is the conveyance of lands, he should, as we have said, make proper conveyance to the several claimants and deposit them subject to the order of the court.^ And so important is this obligation to tender the amount, or perform the duty or obligation, that the court will not make its order until such tender or performance is completed upon the part of the plaintiff.^ It has been said that this rule has been founded in -wisdom. That " it would furnish a strong motive in many cases, to delay the payment of money by filing bills of interpleader, if a party could keep and retain the money in his own hands during the lawsuit.^ § 376. The parties to the bill of interpleader. — The per- son who has the fund, propertj'^or thing in his possession, and from whom it is claimed by two or more claimants, and who is liable to suffer injury because of the several conflicting claims, is a proper party plaintiff, and may, if the circumstances entitle him to proceed by a suit for interpleader, file a bill of complaint. All persons, and there must be more than one, who claim from the party plaintiff the fund, property or thing, or the performance of the duty or obligation which is the sub- ject-matter of the controversy, should be made parties defend- ant. It is a rule that all persons who are interested as claim- 1 Ante, § 374. t. Watson, Dakin v. Watson, 59 Miss. 23 Danl. Ch. PL & Pr. (6th ed.) 1563, 619; Mohawk, etc. Ry. Co. v. Clute, 3 Parker v. Barker, 43 N. H. 78, 96; 4 Paige Ch. 384; MoGarrah v. Prather, Nash V. Smith, 6 Conn. 431; Shaw v. 1 Blackf. (Ind.) 399. Coster, 8 Paige Ch. (N. Y.) 339; Blue 514: EEMEDIES NOT SEEKING BELIEF, ETC. [§ 377. ants, and whom the decree would affect, should be made parties defendant. And it has been held that a legatee inter- ested in the result of a bill of interpleader between parties claiming a fund in the hands of an executor should be apart}', and if not made a party the court should permit him to appear in the cause upon his showing that he is largely interested in the result.^ It may be necessary to make one a party to the bill for the purpose of an injunction which is prayed for, who would not be a necessary party to a bill strictly for interpleader.^ A corporation may be a party plaintiff, and in such case it has been held that the treasurer of the company cannot be made a party, but that the corporation itself must file the bill. This question was under discussion in Hechmer v. GilUgan,^ where the treasurer of the corporation filed a bill of inter- pleader. In the opinion the court say : " The object of a bill of interpleader is to protect a complainant standing in the situa- tion of an innocent stakeholder, and when a recovery against him by one claimant of the fund might not protect him against a recovery by another claimant. After judgments are obtained by two claimants for a fund against a debtor, it is too late for the debtor to file a bill of interpleader, but he is liable for both judgments. It is said by some of the text-writers that an agent may file a bill of interpleader. Where this is allowed it is under peculiar circumstances; where the ag«nt might be liable, if he paid the debt, to the principal; as where the principal had cre- ated a lien in favor of another person on funds in the hands of his agent, the agent may file a bill of interpleader against his principal and the other claimant." § 377. The bill of complaint. — The bill of interpleader is subject to the general rules which are applicable to bills in equity. It must be satisfactorily complete in all its parts and allegations to make out a case which would entitle the com- 1 Wineman v. Circuit Judge, 117 a judgment ordering defendants to Mich. 320, 75 N. W. 617; Blake v. interplead, that such other parties as Garwood, 43 N. J. Eq. 276; Gill v. from their interest in the litigated Cook, 42 Vt. 140. property are necessary for its proper 2 Oil Run, etc. Co. v. Gale, 6 W. Va. determination may be joined. Bren- 52.i; Browning v. Watkins, 18 Miss, nan v. Hall, 63 Hun (N. Y.), 622; 483; Bell v. Gunn, 94 Ga. 642, 31 S. E. Hines v. Spruill, 22 N. C. 93. 899. In Leavitt v. Ftsher. 11 N. Y. 3 28 W. Va. 750, 757. Sup. Ct. (4 Duer), l,it was held, under § 377.] EEJIKDIES NOT SEEKING BELIEF, ETC. 515 plainant to the decree for interpleader prayed for. To that end the party plaintiff or complainant must have such relations to the subject-matter of the bill as entitles him to a decree that the defendants interplead; he must show by his bill, among other things, that the amount of money, the obligation or thing is in his possession or under his control; that he has no other claim to it than that of a disinterested holder for the benefit of the rightful and legal claimant; that he has already deposited, or that he is now ready to deposit, the fund or per- formance of the duty or obligation with the court as it may order.^ The bill should also allege specifically the nature of the claims of the defendants so that it may appear from the alle- gations that they are of that nature and character and of fit subject to support a bill of interpleader. But the complainant is only bound to "set out the claim as exhibited or made to him, and cannot be supposed to do it with as much accuracy as the claimants themselves would do. It is enough for him to satisfy the court that there are opposing claims, against which he is, in equity, entitled to protection until they are set- tled, so that he can pay with safety. The practice of the court has been liberal in favor of persons standing in the situation of stakeholders or agents, having no interest in the. property claimed, and only desiring honestly to pay it where it is justly due. It has proceeded on the principle that they have a right to protection, not from being compelled to pay, but from the vexation of attending all the suits that may possibly be insti- tuted against them. Such a bill may be filed, although the claim of one of the defendants is actionable at law, and that of the other of equitable cognizance."^ It should be clearly 1 Cobb V. Eice. 130 Mass. 331; Stone tainly they must be stated sufH- T. Reed, 153 Mass. 179; Bliss V.French, oiently to give a color of right to 117 Mich. 538. each of the defendants. We assume ^Lozier v. Adm'rs, etc., 3 N. J. Eq. that no case can be found whei'e a 335, 339. In Robards v. Clayton, 49 simple statement that the plaintiff Mo. App. 608, 613, it vras said: holds a certain sum as trustee, and "While the respective claims need that two or more persons claim it as not be stated with such exactness the beneficiaries of the trust, with- as the defendants themselves may out more, was held a sufiBcient be required to state them after statement to maintain a bill of in- theyare required to interplead, cer- terpleader against the alleged claim- 516 REMEDIES NOT SEEKING BELIEF, ETC. [§37' alleged that the defendants have each of them claimed from the plaintiff the debt, duty, obligation or thing, and that he is in danger of suffering injur}'' because of the conflicting claims made upon him; that he is in doubt as to which of the claim- ants is entitled to the subject-matter of the claim, but he should not deny the claim made by any of the defendants, for the bill must show that the plaintiff is entirely indifferent, and is merely a stakeholder and disclaims any personal interest in the thing in question, for if the bill should show that one of the defendants is entitled to the fund, or duty, or thing, and the others are not, it would be subject to a demurrer by all of the defendants. The bill should also show that the adverse claims of the defendants are dependent upon, and are derived from, a common source.^ But, as we have seen, a bill may be filed in the nature of a bill of interpleader for the purpose of establishing the plaintiff's own right and claim to the prop- ants." Funk V. Avery, 84 Mo. App. 490. And in Supreme Lodge, etc. v. Raddatz, 57 111. App. 119, 123, it is said: "The stakeholder who files the bill cannot be presumed to know all the facts upon which various parties are claiming' from him the same thing; therefore he is not required to set forth matters and things which show an apparent title in either. It is enough in this regard to show the danger he is in, his in- difference as to each claimant, and that he is ready to pay to whomso- ever is entitled; that he brings the money into court and asks that par- ties who have really no controversy with him but only with each other shall not vex him with costs and ex- penses over a dispute in which he has no interest." Pomeroy's Eq. Jur., sees. 1318, 1330 and note; National Bank v. Augusta, etc. Co., 99 Ga. 386; Warnock v. Harlow, 96 Cal. 398; Mohawk, etc. Ry. Co. v. Clute, 4 Paige Ch. (N. Y.) 384; Varrian v. Berrian, 42 N. J. Eq. 1, where the bill was dismissed for failure to state the interests of the defendants. In Blue V. Watson, 59 Miss. 619, and in Starling v. Brown, 7 Bush (Ky.), 164, it was held that the bill must show that each defendant made a claim. Bolin V. St. Louis, etc. Ry. Co. (Tex. Civ. App., 1901), 61 S. W. 444. Tn Shaw V. Coster, 8 Paige (N. Y.), 339, 347, the chancellor said: " As I understand the law, the complainant in a bill of interpleader must show that he is ignorant of the rights of the respective parties who are called upon by him to interplead. Or that at least there is some doubt, in point of fact, to which claimant the debt or duty belongs; so that he cannot safely pay or render it to one, with- out risk of being made liable for the same debt or duty to the other. And therefore if the complainant states a case in his bill which clearly shows that one defendant is entitled to the debt or duty, and that the other is not, both defendants may demur." 1 Morrill v. Manhattan Life Ins. Co., 183 111. 260; Kyle v. Mary Lee Co., 113 Ala. 606, 30 So. 851. § 378.] REMEDIES NOT SEEKING RELIEF, ETC. 517 erty or thing in controversy; as where "the complainant asks for some relief over and above a mere injunction against suits by the contesting parties, and states facts which entitle him to such relief independent of thefactof the adverse claims of the several defendants." ' If in such case the bill alleges facts which entitle the complainant to relief independent of a strict interpleader aspect, it is not necessary to allege that he has no interest in the subject-matter in controversy, or that he is entirely indifferent; for by the very nature of the case he is interested but only to the extent of establishing his own status and protecting his own rights in the matter.- §378. The prayer. — In the strict bill of interpleader the plaintiff should not pray for relief other than that the defend- ants may set forth their several claims, and interplead and ad- just and settle their demands between themselves; for from the very nature of the bill he cannot claim affirmative relief against any of the claimant defendants; he can only ask leave to pay the money or deliver the property, or render the duty or obligation to the one entitled to it, so that he may there- after be protected against all of the claims of the defendants. The decree asked for in strict interpleader is, therefore, that the complainant be entitled to an interpleader on the part of the defendants to the bill; that this being obtained he may be thenceforth altogether out of the suit, the defendants alone being left to settle their respective claims without any inter- ference on the part of the plaintiff.^ In lUingworth v. Rowe * the court say : " To state a case of strict interpleader it is necessary for the complainant to show that conflicting claims are made against him for the same thing by two or more different persons, to aver that he has no inter- est in the subject-matter of their controversy, and also admit that the title to the thing in dispute is in some one of the con- flicting claimants, but in which he is unable to decide. He cannot ask for affirmative relief against either of the hostile 1 Van Winkle v. Owen, 54 N. J. Eq. '^ St. Louis, etc. Co. v. Alliance, etc. 353^ 257. Co., 23 Minn. 7; 2 Barb. Ch. Pr. 117. 2.4nfe § 271; Story, Eq. PL, sec. <52 N. J. Eq. 360; 2 Story, Eq. Jur. 2976; Aleck v. Jackson, 4 Dick. (N. J.) 824; Story, Eq. PL, sec. 2976; Bedell 507; 2 Danl. Ch. PL (5th ed.) 1563; v. Hoffman, 2 Paige Ch. (N. Y.) 199; Vy vyan v. Vy vyan, 30 Beav. {Eng.)65. Mitf. & Tyler, PI. & Pr. 447. 518 REMEDIES NOT SEEKING EELIEF, ETC. [§ 379. claimants, but must content himself with simply praying that they be required to cease from troubling him, and to settle their dispute by some appropriate judicial proceeding among themselves. But, as is said by Judge Story, '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 among third persons.' Among the instances which he gives, in which it is proper to have recourse to this remedy, is this: ' If a mortgagor wishes to redeem the mortgaged estate, and there are conflict- ing claims between third persons as to their title to the mort- gage money, he may bring them before the court, to ascertain their rights, and to have a decree for a redemption so that he may make a secure payment to the party entitled to the money.' In such a case if the complainant prevails, he gets affirmative relief; ... a decree that, on the payment of the mortgage debt, the mortgage shall be surrendered to him for csincella- tion." To the special prayer should be added a general prayer for relief. If an injunction is sought to restrain the claimants from proceeding against the plaintiff upon their several claims, it should be prayed for; and there should also be added to the bill the usual prayer for process. § 379. Yerification If the bill prays for an injunction, it must be verified by the complainant, and to every bill of inter- pleader the plaintiff is required to add an affidavit that there is no collusion between himself and the defendants. And it has been held that the absence of such an affidavit would ren- der the bill demurrable.' If the bill is filed by a corporation, it should be accompanied by the affidavit of an officer of the company who is cognizant of the facts that there is no collusion between the corporation or any of its officers with the claim- ants. If the plaintiffs are copartners, it has been held that the affidavit of non-collusion sworn to by one of the partners is sufficient.^ The reason for requiring an" affidavit of non- ' Home Life Ins. Co. v. Caulk, 86 any of the claimants. Gibson v. Md. 385; Story, Eq. PI., sec. 291. Goldthwaite, 7 Ala. 281; Hastings v. 2 Bliss V. French, 117 Mich. 538, 76 Cropper, 3 Del. Ch. 165; Nofsinger N. W. 73. The object of the affidavit v. Reynolds, 52 Ind. 218; Wing v. is to prevent giving an affidavit to Spanlding, 64 Vt. 83; Hechmer v. § ySO.] REMEDIES NOT SEEKING RELIEF, ETC. 519 collusion is apparent. The sole ground on which the court of equity assumes jurisdiction in this class of cases is that a plaintiff who stands neutral and as a mere stakeholder, admit- ting his liability to some one of the claimants, asks the court to whom he shall pay the debt, or deliver the property or thing in his possession. Neutrality as to claimants is there- fore an essential, and no collusion that might benefit any of the claimants will be permitted. The complainant must be absolutely neutral, not giving advantage to any of the parties.' § 380. Defenses to bills of interpleader.— The defenses to bills of interpleader are similar to the defenses which may be interposed to bills in equity generally, and the rules gen- erally governing equitable defenses are applicable. The de- fenses are by demurrer, plea or answer. (1) By demurrer. If the bill fails to make out a case that will support a decree of interpleader, it will be subject to a demurrer; as, where the complainant had incurred an inde- pendent liability to one of the defendants.^ Or if the bill shows that one of the defendants is entitled to the debt, duty or ob- ligation, thus favoring a claimant of the fund;^ or if he denies his liability to either of the defendants he is not entitled to the remedy, for by such an allegation he destroys the very foundation upon which it rests;* or where it appears that the claimants do not derive their rights or titles from the same source;* or where there was no sufficient statement of the nature of the plaintiff's position; as where the bill fails to show that he sets up no claim to the fund or thing in his possession, and is but a disinterested stakeholder; or where there is no Gilligan, 28 W. Va. 750. In Con- fund into court he is entitled to neoticut it has been held that such withdraw from the suit and leave an afiadavit is not required. Con- the defendants to establish their re- solidated, etc. Soc. v. Staples, 23 Conn, speotive rights to the fund between 544. themselves." 1 Shaw V. Coster, 8 Paige Ch. 339; 'Shaw v. Coster, 8 Paige, 348; Story, Eq. PL, sec. 297; Mt. Holly, Sprague v. West, 127 Mass. 471; Bri- etc. Co. V. Ferree, 17 N. J. Eq. 117; ant v. Reed, 14 N. J. Eq. 271; Parker Cobb V. Rice, 130 Mass. 331. v. Barker, 42 N. H. 78; Crass v. Mem- 2 In Holmes v. Clark. 46 Vt. 23, 28, phis, etc. R. Co., 96 Ala. 447. the court say: "In a proper bill of ^McHenry v. Hazard, 45 Barb. Ch. interpleader the orator should stand (N. Y.) 657. in such a relation to the fund and ■'' Stone v. Reed, 153 Mass. 179. the defendants that upon paying the 520 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 380. averment of offer to pay the debt or perforin the duty or obli- gation ; or an allegation that he has brought the money, or that which is necessary to a performance of the obligation, into court;' or where there is no averment of the non-collusion of the plaintiff with any of the claimants, and no affidavit thereof attached to the bill;^ or where the defendants' claims were not shown to be of such a nature, or the liability for them of such a nature, that the plaintiff can ask for an interpleader. (2) The plea. If there are facts in existence which the de- fendants can prove, but which do not appear upon the face of the bill, and which, being true, would show that the court has no jurisdiction, or that the plaintiff has been guilty of such collusion with any of the claimants as would evidently give him or them advantage; or where there are salient governing reasons why the bill is not sufficient to support a decree, a de- fense based upon these reasons may be interposed by plea. (3) The answer. By the answer the defendants or claimants may deny the allegations of the bill, set up facts in bar of the action, thus traversing the claim of the plaintiff that he has the right to a decree of interpleader against the claimants, — that is, an issue by the answer may be raised upon the facts alleged in the plaintiff's bill upon which he depends for a de- cree, as, for example, that the fund, the duty or the obliga- tion is of such a nature, or is in his possession under such cir- cumstances, as would not entitle him to an order that the de- fendants interplead. By answer, the defendants, or any of them, may raise the issue that there is an independent liability to the defendants or some of them ; that the plaintiff is not a mere disinterested stakeholder; that he is not in a position that the court can find that he would be injured by compliance with the demands of the defendants.' And if such denials or iMcGarrah v. Prather, 1 Blackf. sin Williams v. Matthews, 47 N. J. (Ind.) 299; Blue v. Watson, 59 Miss. Eq. 196, 198, the court say: "If, on 619; Snodgrass V. Butler, 54 Miss. 45. complainant's presentation of the 2 Turnpike Co. v. Ferree, 17 N. J. case, it appears on the face of the Eq. 117; Home Life Ins. Co. v. Caulk, bill that it is not a proper case for 86 Md. 385, 38 Atl. 901; Story, Eq. interpleader, demurrer will lie. But PI., sec. 291; Barroll v. Foreman, 86 if the bill should show such a case, a Md. 675, 39 Atl. 273; Look v. McCa- defendant may, by answer, deny the hill, 106 Mich. 108; Davis v. Davis, allegations in the complainant's bill, 96 Ga. 136, 21 S. E. 1002; Shaw v. or set up distinct facts in bar of Chester, 2 Edw. Ch. (N. Y.) 405. the suit, and such issue is to be tried §§ 381, 382.} EEMEDIES NOT SEEKING EELIEI', ETC. 5^1 allegations are made by the defendants in their answer, the case will be heard and the court called upon to determine upon the facts adduced at the hearing as to the right of the plaint- iff to a decree of interpleader. The defendants, however, may admit all the facts and allegations of the plaintiff's bill which entitle him to a decree of interpleader, and in such case each defendant alleges in his answer the facts and circumstances upon which his claim is based; setting out fully and with suffi- cient particularity his claim to the fund, property, or thing in the hands of the plaintiff, that the court and his co-defendants may be apprised of his contention in that regard. § 381. The replication. — If the defendants or either of them set up distinct facts in bar of the suit, or deny the alle- gations upon which the right of the plaintiff rests for a decree of interpleader, and the plaintiff desires to contest the allega- tions and raise an issue of fact upon the allegations in the answers, he must file a replication. But if the defendants, or either of them, do not deny the allegations of the plaintiff's bill, and do not set up a defense in bar of the suit, but admit the facts on which the complainant bases his claim to a decree of interpleader, it seems to be generally conceded that the plaintiff need not file a replication to the answer, but may set the case down for hearing upon bill and answer, as no proof would be required; the allegations of the bill and answer being sufficient to support a decree of interpleader. In such case, however, an issue upon the several alleged claims of the de- fendants, as set forth in their several answers, may be tried and determined, and a decree of the court made determining which of the defendants are entitled to the fund, property or thing in question. § 3S2. The hearing and decree. — The question as to the right of the complainant to have a decree requiring the de- fendants to interplead may be raised by answer and proofs taken at the hearing. It seems to be generally conceded that questions of this kind need not be raised at an earlier stage of the case, that is, before an answer and trial upon the merits.^ according to the practice of the Wing v. Spaulding, 64 Vt. 83; Yates court." Story, Eq. PI. 297; Hall v. v. Tisdale, 3 Edw. Ch. (N. Y.) 71; Baldwin, 45 N. J. Eq. 858, 865. Mt. Holly, etc. Co. v. Ferree, 17 N. J. 1 Toulmin v. Raid, 14 Beav. 499; Eq. 117. 522 EEMEDIKS NOT SEEKING EELIBF, ETC. [§ 382. Xo aflBrraative relief can be decreed to the plaintiff in a strict bill of interpleader.' Upon the hearing of the cause upon bill and answer, or upon pleadings and proof, if the court deter- mines that the case is one in which a decree for interpleader should be made, it will so decree; and if the bill be one of strict interpleader, the complainant will, by this decree, be out of the case. But it has been held that he cannot withdraw until he has complied with the requirement to deliver the funds or pay the debt to those entitled to them ; or render the duty or deliver the property to the rightful claimant; or bring the money, or fund, or property, or thing, into court, or the con- veyances that represent the property, as the court may direct.* By a decree of interpleader the plaintiff is held harmless after performing the duties required of him. And the injunction enjoining defendants from proceeding against him for their several alleged claims will be made perpetual. After such a decree the plaintiff cannot participate in the litigation between defendants.' He cannot even object to the rulings made in the case, nor take part in the argument of questions involved between the defendants.'' In Earth v. Eosenfeld^ it was held that a decree of inter- pleader is interlocutory and subject to revision and correction. And so when the case is finally determined it may be reviewed and a different decree made. In Walceman v. Kingsland^ it was held: "That the only decree which can be made in a strict interpleader suit in favor of the complainant and against the defendants is that the complainant's bill was properly filed, giving him leave to bring the property in dispute into court, and allowing him costs out of the property, and directing the defendants to interplead and settle the conflicting claims which they set up to the property among themselves. From the nat- ure of the remedy this is the only decree which it is possible for the court to make in favor of the complainant." 1 Wakeraan v. Kiagsland, 46 N. J. ' St. Louis Ins. Co. v. Alliance, etc. Eq. 113; Newhall v. Kastens, 70 111. Co., 23 Minn. 7. 156; Bedell v. Hoffman, 2 Paige Ch. « Provident Sa v. Inst. v. White, 115 199; lUingworth v. Rowe, 52 N. J. Mass. 112; Andrews v. Halliday, 63 Eq. 860. Ga. 268. 2 George et al. v. Pilcher, 28 Grat. 5 35 Md. 604. (Va.) 399, 805; Newhall v. Kastens, 70 « 46 N. J. Eq. 113, 116; Richards v. 111. 156; Story, Eq. PI., sec. 297. Salter, 6 Johns. Ch. 445. § 3S3.] EEMEDIES NOT SEEKING EELIEF, ETC. 523 After a decree of interpleader has been made, the court hav- ing jurisdiction of the cause will proceed to settle all the con- troversies and issues involved in it, and will therefore hear the proofs and determine the rights of the several defendants and make a final decree determining who is entitled to the fund, property or thing which is the subject-matter of the suit. In Wakeman v. Eingsland it was further said : " The case tendered by every bill of interpleader ought to be such that the whole of the rights claimed by the defendants may be de- termined by the litigation between them, and that the plaintiff is not under any liabilities to either of the defendants beyond thos3 which arise from the title of the property in contest, be- cause if the plaintiff has come under any personal obligation independently of the question of property, so that either of the defendants may recover against him at law, without estab- lishing a right to the property, it is obvious that no litigation between the defendants can ascertain the right of such defend- ant as against the plaintiff. . . . Such a case undoubtedly would not be a case for interpleader." " Where the right of one defendant is admitted by the an- swer of the other, or the bill is taken as confessed as to one, the court settles the rights of the parties at once, and makes a final decree as to those rights, and as to the disposition of the fund in controversy." ^ And in such case the plaintiff cannot dispute the claim of the other defendant who has inter- pleaded and set up his claim, nor can he object to the decree in his favor.^ Section II. Receivers. § 383. Receivers — Nature and office of, in equity suits. The appointment of receivers belongs to the first class of equitable remedies. Receivers in equity may be said to be auxiliary and administrative in that they assist the court in carrying out its orders and decrees in the suit wherein they are appointed; and protective and preventive in that they collect the funds and property of the parties, protect it from fraudulent and wasteful expenditure, and prevent its injury or 1 City Bank v. Bangs, 3 Paige Ch. (N. Y.) 570; Michigan, etc. Co. v. White, 44 Mich. 25. '^ Cogswell V. Armstrong, 77 111. 139. 524 REMEDIES NOT SEEKING BELIEF, ETC. [§ 384. destruction. The receiver is called " the hand of the court," for the reason that the court, through the receiver, administers and executes its orders and decrees. It literally lays its hand •upon the funds and property involved in the controversy; col- lects and holds it for such distribution and disposal as justice and equity demands, protecting it from fraud, incompetency and mismanagement. The proceeding is a harsh one in that it takes the possession, management and control of the busi- ness and property of the parties from them and places it in the hands of another who holds it under the direction of the court to be controlled, managed and finally distributed as the court may by its decree direct. § 384. A definition and some requisites. — A receiver is an indifferent person between the parties to the cause, appointed by the court pending the suit to collect and preserve the prop- erty and effects of the parties in question and the proceeds therefrom, and account to the court therefor when it appears to the court that it would be unjust and inequitable that either party should have the possession and control thereof. From this definition it will be observed that there are certain impor- tant requisites. The receiver must be a person who is indiffer- ent between the parties litigant and must remain so, giving to neither party favor or advantage. In executing the orders of the court he acts as and for the court and should be as un- biased as the court itself. He can only be appointed pending the suit; until the suit is commenced there can be no receiver, and his appointment and authority terminates with the cause, if not terminated before that time by order of the court. His duties are to collect and preserve the property and effects of the parties that are in litigation, and the proceeds therefrom, and account to the court therefor. He is an executor of the court's orders. His appointment must be the result of the court's determination that it would be unjust and inequitable to leave the property and effects of the parties, the subject of the litigation, or the management of the business !n the possession and control of either part}'. Until the court has arrived at this conclusion there can be no appointment.' 'In Booth V. Clark, 17 How. (U. S.) allowed to him, for he must apply 323, 331, it was said: "When ap- to the court for liberty to bring or pointed, very little discretion is defend actions, to let the estate, and § 3S5.J EEMEDIES NOT SEEKING BELIEF, ETC. 625 § 385. Jurisdiction to appoint.— The appointment of re- ceivers is peculiarly within the province of the equity court, and except as provided by statute it is the only court that has jurisdiction to appoint receivers. The statutes of the different states as well as the statutes of the United States have pro- vided for appointment of receivers pending litigation to de- termine the title to property other than in the equity courts, but ordinarily and naturally the jurisdiction belongs to the court of equity. In Bitting v. Ten Eyck ^ the court say: "The appointment of a receiver is one of the prerogatives of a court of equity, ex- ercised in aid of its jurisdiction, in order to enable it to accom- plish, as far as practicable, complete justice between the par- ties before it. From the very nature of the power and of the purposes for which it may be invoked, its efficiency depends on the promptness with which it may be exercised." It has been held that the power to appoint receivers is in- herent in the equity court.^ It is said that " the order of ap- pointment is in the nature not of an attachment, but a seques- tration; it gives in itself no advantage to the party applying for it over other claimants; and operates prospectively upon rents and profits which may come to the hands of the receiver, as a lien in favor of those interested, according to their rights and priorities in or to the principal subject out of which those in most oases to lay out money on of all parties, and not of the com- repairs, and he may without leave plainant or of the defendant only, distrain only for rent in arrear short He is appointed for the benefit of all of a year. 6 Ves. S02; 15 id. '^6; 3 parties who may establish rights in Bro. C. C. 88; 9 Ves. 335; 1 Jac. & W. the cause. The money in his hands 178; Morris and Elme, 1 Ves. Jr. 139; is in custodia legis for whoever can 1 id. 165; Blunt and Clithero, 6 Ves. make out a title to it. Delany v. 799; Hughes and Hughes, 3 Bro. C. Mansfield, 1 Hogan, 284. It is the C. 87; 5 Madd. 473. A receiver is an court itself which has the care of indifferent person between parties, the property in dispute. The receiver appointed by the court to receive is but the creature of the court; he the rents, issues or profits of land, or has no powers except such as are other thing in question in this court, conferred upon him by order of his pending the suit, where it does not appointment and the course and seem reasonable to the court that practice of the court. Verplanck v. either party should do it. Wyatt's Mercantile Ins. Co., 2 Paige Ch. 452." Prac. Reg. 355. He is an officer of ' 85 Ind. 357, 3fi0. the court; his appointment is pro- 2Cox v. Volkert, 86 Mo. 505; Smith visional. He is appointed in behalf v. Butcher, 28 Grat. 144. 626 KEMEDIES NOT SEEKING BELIEF, ETC. [§386. rents and profits issue. In the exercise of this summary juris- diction, a court of equity reverses, in a great measure, its or- dinarj' course of administering justice; beginning at the end, and lev\nng upon the property a liind of equitable execution, by which it makes a general, instead of a specific, appropriation of the issues and profits, and afterwards determining who is entitled to the benefit of its quasi process." ' §386. Must be in pending: suit. — It is a general rule that i\ receiver cannot be appointed except in a pending suit in a court having competent jurisdiction. The appointment of a receiver is said to be "one of the modes by which the pre- ventive justice of a court of equity is administered." It is a proceeding auxiliary in its nature, used by the court to assist in the execution of its orders; and so the appointment is made only in suits brought to obtain some equitable relief. The ap- pointment must be in a controversy pending between adverse parties and involving conflicting claims. And vphere it ap- peared that there had been no bill filed, and no case was pend- ing in the court, it was held that a receiver should not have been appointed; the court holding that to authorize the ap- pointment of a receiver there must be a suit pending, and an opposite party, to warrant the appointment.^ The property that is sought to be placed in the hands of a receiver must be the property owned or controlled by a party to the suit, that he may have an opportunity of resisting the appointment and defending his property against what might result in great damage to his interests. And so it has been generally held that it must appear in the bill of complaint filed in the cause in which a receiver is sought that the complainant is reason- ably entitled to the relief, and that it is necessary to the carry- 1 Beverley v. Brooke, 4 Grat. (Va.) tlie order appointing a receiver -was 187, 208. It is in the nature of an void for the reason that it was equitable attachment. Cincinnati, made when there was no suit pend- etc. R. Co. V. Sloan, 37 Ohio St. 1; ing. And in Jones v. Schall, 45 Mich. Albany City Bank V. Sohermerhorn, 379, 380, the court say: "This ap- 9 Paige Ch. (N. Y.) 377; Davis v. pointment of a receiver, even if one Gray, 16 Wall. (U. S.) 203. could have been appointed at any, 2 Whitehead v. Wooten, 43 Miss, stage of the case, was absolutely 523: Hardy v. McClellan, 53 Mich, void, as the bill had not been filed 507. In Merchants', etc. Bank v. andnosuit commenced at the time." Kent Judge, 43 Mich. 393, 296, held. § 387.] EEMEDIES NOT SEEKING RELIEF, ETC. 527 ing out of the relief prayed for, and to avoid Irreparable injury and loss, that a receiver should be appointed. § 387. In what cases appointed. — Ko definite fixed rule can be laid down as to when or in what cases the court will appoint a receiver. This can only be determined from the nature of the case in which the appointment is asked. It will be remembered that the appointment of a receiver is not the ultimate object of the litigation, but is only a provisional remedy used by the court to control and preserve the property which is the subject of the suit, in such a manner that the relief sought for and finally given may be effected. And so the court will look to the case made by the bill of complaint to determine whether the case is one to warrant the appoint- ment. The appointment rests in the sound discretion of the court, and it is said "in exercising its discretion the court pro- ceeds with caution and is governed by a view of the whole circumstances of the case." ^ The remedy is a harsh one, taking from the party in posses- sion and control the property in controversy and placing it in the cliarge, custody and control of the court through the re- ceiver appointed by it. The receiver in the cause is not ap- pointed for the plaintiff's benefit merely, but for all other per- sonsrwho may establish rights in the cause; and it is presumed that the court would exercise a wise and equitable control, preserve the property and the proceeds of it, and finally dis- tribute or deliver it to the parties equitably entitled to it.^ Because of this harsh and extraordinary proceeding the au- thority to appoint receivers should be used with great cir- cumspection. By taking possession of the property there is danger in some cases of doing irreparable wrong — such an injury that even a subsequent restoration of the property may afford no adequate compensation. "An injunction and re- ceiver are resorted to in any case only to preserve property in -statu quo pending a contest." ^ 1 Kerr on Receivers, 3; Skip v. 176. To justify the appointment of Harwood, 3 Atk. 564. a receiver the plaintiff should shovsr 2Gaynor v. Blewett, 83 Wis. 313; at least a probable interest in the Eider v. Bagley, 84 N. Y. 465; Thorn- property, and a well-grounded appre- ton V. Bank, 76 Va. 432. hension of immediate injury to such 3 Schlecht's Appeal, 60 Pa. St. 173, interest, unless the property is taken 52S EEMEDIES NOT SEEKING- BELIEF, ETC. [§ 387. In Blondheim v. Moore^ the court has laid down certain rules which should be observed and followed in the appoint- ment of receivers: "1st. That the power of appointment is a delicate one, and to be exercised with great circumspection. 2d. That it must appear the claimant has a title to the prop- erty, and the court must be satisfied by affidavit that a receiver is necessary to preserve the property. 3d. That there is no case in which the court appoints a receiver merely because the measure can do no harm. 4th. That 'fraud or imminent dan- ger, if the intermediate possession should not be taken by the court, must be clearly proved.' And 5th. That unless the ne- cessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application." The primary reason which seems to underlie every case where a receiver should be appointed is to preserve the property for the parties who are legally and equitably entitled to it. And so it has been said " that only a few general principles may be regarded as established according to which the power ought to be exercised. One of these is, that a receiver ought to be appointed only ' to prevent fraud, save the subject of litigation from material injury, or rescue it from threatened destruction.' Nor should it be done then, until answer to a bill praying it has been made by defendant, ' unless the necessity be of a most stringent character.' " ^ While it appears to be a requisite that the plaintiff, by his bill, should show that he has a title to the property, it is not necessar}' that it should conclusively appear, for the court can- not determine fully that fact but by exhibits and affidavits in support of the bill, and by the bill itself. There should be a strong probability, at least, that the title of the property is in the plaintiff, and the averments must not be uncertain or in- consistent in this respect, and the allegations of danger or peril to the property must be sufficiently certain to justify the court in adopting this harsh procedure. " If it appears to the court that the plaintiff has established a good p7'ima facie equitable title, and that the property, the charge of by the court. Lancaster 1 11 Md. 365, 374. V. Asheville, etc. Ry. Co., 90 Fed. 129; ^Briarfleld, etc. Co. v. Foster, 54 Sohaok V. MoKey, 97 111. App. 460. Ala. 633, 634. § 3SS,] EE.MEDIES NOT SEP:KING BELIEF, ETC. 529 subject of the suit, is in danger if left in the possession of the party against whom the receiver is prayed until the hearing, or at least that there is reason to apprehend that the plaintiff will be in a worse situation if the appointment of a receiver be delayed, the appointment is almost a matter of course. If there is no danger to the property, and no fact is in evidence to show the necessity or expediency of appointing a receiver, a receiver will not be appointed unless there be some other equity in the case to support the application." ' In deter- mining the motion for appointing a receiver, however, the court does not decide what its determination may be upon the hearing of the cause, for it only expresses its opinion so far as it is necessary to deal with the interlocutory proceeding and the result at the hearing may be different.^ § 388. Some special cases. — It would be difficult to name or classify the very many cases in which the equity court would exercise its power of appointing a receiver, and we can only notice a few special cases and the reasons for the exercise of the remedy. Partnership cases. It is frequently invoked in partnership cases. In these cases the court is called upon to exercise a very careful and judicial discretion, for often the remedy is invoked where one or more of the partners do not desire a winding up of the business; or perhaps where to dissolve the 1 Kerr on Receivers, 8. from the established practice of 2 In Pascault v. Cochran, 34 Fed. courts of equity. The purpose for 358, 367, the court say: "Such a re- which a receiver takes possession is ceiver is uniformly regarded as the closely allied to that of a sheriflf in officer of the court, exercising his levying under execution, except that functions in the interest of neither the scope of the receiver's authority plaintiff nor defendant, but for the is more comprehensive, since he is common benefit of all parties in in- usually required to pay all demands terest. Being an officer of the court, upon the fund in his hands to the ex- the fund or property intrusted to his tent of that fund. And it has been care is regarded as being in custodia held that the appointment of a re- legis, for the benefit of whoever may ceiver is, in efifect, an equitable ex- eventually establish title thereto; ecution. It does not change the the court itself having the care of title to, or create any lien, upon the the property by its receiver, who is property, and ordinarily gives no ad- merely its creature or officer, having vantage or priority to the person at no powers other than those con- whose instance the appointment is ferred upon him by the order of his made over other parties in interest." appointment, or such as are derived 34 530 KBMKDIES NOT SEEKING EELIEF, ETC. [§ 388, relation and wind up its affairs would be of great damage, if not irreparable injury, to one or more of the partners. And so it is generally conceded that the bill filed must seek a dis- solution of the partnership, and that it must satisfactorily ap- pear that the complainant would be entitled to such a decree; for it is said that in such cases the same reasons that would justify a decree for a dissolution would justify a decree for the appointment of a receiver; for if the plaintiff is entitled to a dissolution, it would hardly be justice to leave the defendant at liberty to go on with the partnership business to the preju- dice and loss of the plaintiff. But a mere disagreement be- tween the partners as to how the business shall be conducted will not be sufficient.^ In Sloan V. Moore '^ the court said: "It is difficult to see how the necessity of a receiver can be avoided on the dissolu- tion of a partnership when the parties cannot agree as to the disposition of the joint effects, for no one has a right to their possession and control superior to that of the other." And in Law V. Ford'^ the court say: "Where either party had a right to dissolve the partnership, and the agreement between the parties made no provision for closing up the concern, it was of course to appoint a manager or receiver, on a bill filed for that purpose, if thej' could not arrange the matter between themselves." Each partner is entitled to his full share and management of the business, and so when he is excluded from access to the books and papers of the concern and from a part in the man- agement of the business, it would be sufficient ground for the appointment of a receiver.* And so a receiver may be ap- pointed after the partnership is dissolved to wind up the af- fairs of the concern. But only where the property or some of iNewv. Wright, 44 MLss. 202; Henn 9 Kan. 435. And where it appeared V. Walsh, 3 Edw. Ch. (N. Y.) 130; from the pleadings and affidavits Waring V. Robinson, Hoff. Ch. (N. Y.) that several mortgagees and unse- 534; Garretson v. Weaver, 3 Edw. cured creditors were interested, and Ch. (N. Y.) 385; Barnes v. Jones, 91 that the partners themselves could Ind. 161. not agree, it was held on application ^ 37 Pa. St. 217. of the defendants that a receiver 3 3 Paige Ch. (N. Y.) 310. might be properly appointed. Rolfe In cases where the appointment would dispossess persons in the possession of real estate, the emergency would have to be very great and very clearly shown to demand immediate ac- tion, to induce the court to make the appointment ex parte. The general rule seems to be that the court in such cases will not appoint a receiver without a hearing. It has been said that " the principle is at least as old as the Magna Charta that a man shall have a trial of his rights before dispossession." ^ By petition. The more usual manner of procedure for the appointment of a receiver is by petition, or, as is sometimes said, by motion, after the bill is filed and the defendant notified by service of process. The petition should set forth clearly and explicitly the reasons for the appointment, making reference to the bill of complaint on tile, with which it must be consist- ent; for the application must rest upon the bill as well as the petition, for if the alleged case in the bill will not support an appointment, the court will not entertain the application. The petition should be fully supported by affidavits, at least as to all material facts not positively averred and sworn to in the bill of complaint. This petition should be signed and verified by the applicant, or some one in his behalf, and a copy thereof, with copies of the affidavit and all other written proofs relied upon, served upon the opposite party with a notice of the time and place and before whom the application will be made. The length of time to be given for the hearing is generally fixed in each jurisdiction by rule of court or by statute. The applica- tion for receiver, if made at any time after the bill is filed and the defendant served, should be by petition; and the petition should state upon what the applicant relies to support his ap- plication. If upon affidavits served with the petition and the bill of complaint, or the bill of complaint and the answer thereto, it should be so stated, that the respondent may know what he has to meet when the application comes on for hearing. the notice will defeat the plaintiff's must be set forth in the bill. Soott rights, or result in great injury to v. Cox (Tex. Civ. App., 1902), 70 S. him, or that the ex parte application W. 802. is of extreme necessity, the appoint- i McCombs v. Merryhew, 40 Mich. ment may be so made, but the cir- 731, 735. cumstances rendering it necessary 64:0 EEMEDIKS MOT SEEKING BELIEF, ETC. [§ 390. Opposing the application. The respondent may oppose the application for the appointment of a receiver by producing counter-affidavits and filing a sworn answer denying all the equities of the bill upon which the receiver is sought, for it has been said that the plaintiff in such case has addressed himself to the conscience of the defendant, and by the filing of his bill and his application for a receiver has made him a witness and must take his answer as true, unless he can over- come it by other testimony; ' and if a receiver has already been appointed before the defendant has appeared and filed his an- swer, upon the coming in of the defendant's sworn answer com- pletely denying all the equities of the bill, the receiver will generally be discharged. But the general trend of authority would seem to be that the sworn answer need not be taken as absolutely true, but will be given such weight as the court con- siders it worthy.^ The effect of a sworn answer denying ail the equities in the bill of the complaint appears to be the same as in proceedings for an injunction. If the, answer does not deny all the equities in the bill, those equities which are un- denied will be taken as true unless controverted by other proof adduced at the hearing. And if it should appear at the hear- ing of the petition that the bill does not state a cause of action, or that it is improbable that the relief prayed for will ulti- mately be granted, the application should be refused. The sworn answer of a defendant denying all the equities in the bill of complaint is no doubt a strong defense to the application for a receiver; still it seems that it is not a conclu- sive reason for either refusing to appoint a receiver or dismiss- ing a receiver who has already been appointed. At most the 1 Thompsen v. Diffenderfer, 1 Md. Voshell & Heaton v. Hynson et al., Ch. 489. Judge Story in his Equity 26 Md. 83, 94; Barton v. Loan, etc. Pleading, section 852, says: "An an- Ass'n, 114 Ind. 226, 228. In Crombie swer must be full and perfect to all v. Order of Solon, 157 Pa. St. 588, 590, the material allegations in the bill, the coui-t say: "But it is sufficient It must confess, avoid, deny or trav- for us that every substantial aver- «rs6 all the material parts of the bill, ment of the bill is denied by a com- It must state facts and not argu- pletely responsive answer, which is ments. It is not sufficient that it not ovei-come, nor even met, by contains a general denial of the mat- further proof. There is nothing, there- ters charged." Rhodes v. Lee, 82 fore, on which the injunction or the Ga. 470. receivership can rest." ^Drury v. Roberts, 2 Md. Ch. 157; § 391.] REMEDIES NOT SEEKING RELIEF, ETO. 541 answer stands as evidence in the case to be considered the same as other evidence adduced by the parties, and so all that can be expected is that the court will take the whole case into consideration; consider the credibility of the answer the same as the credibility of other proof adduced; its consistency with the defense claimed, and if, after due deliberation, it should appear to the court that equity and good conscience re- quire the appointment to remain as it has been made, or that a receiver be appointed and continue until the further order of the court, the court will so act notwithstanding the answer in terms denies the charges in the bill.' § 391. The order on application for appointment.— It goes without saying, and is a general rule, that a receiver has no greater power or authority over the property or assets in controversy than that conferred upon him by the order for his appointment.- And so the order must in terms confer upon the receiver such power and authority as in the judgment of the court it is deemed necessary he should possess in the par- ticular case. It would be difficult to lay down any fixed form of order or define its scope, as every order depends upon the facts and circumstances of the particular case in which it is made. The order should describe the property or assets of which the receiver is to have custody and control with as much particularity as the nature of the case will permit, but it need not be with absolute certainty; if it is described with such certainty that it may be identified and distinguished from other property of like kind it is sufficient.' ' In Cohen V. Meyers, 42 Ga. 46, 49, the quo until a jury can pass upon the court say: "As a matter of course, case, the order ought to stand." if there be no equity in the bill, if Cameron v. Groveland, etc. Co., 20 the court has no jurisdiction of the Wash. 169, 171; Beach on Receivers, case, that is another matter. But it sec. 151. is a mistake to suppose that if the ^Q^ant v. City of Davenport, 18 answer in terms denies the charges Iowa, 179, 194. in the bill, the judge is required by ^ 1 Freeman on Judg. {4th ed.) sec. law to revoke his order granted ex 500. In Steele v. Walker, 115 Ala. parte. He is to take the whole case, 485, 492, the court say: "Such orders to consider the credibility of the an- do not become the source or founda- swer, its consistency with itself, and tion of title to property, and while it with the nature of the case; and if is desirable in practice to render on the whole it appears that justice them as certain as practicable, there requires things to remain in statu is not the reason for exacting from 54:2 EKMKDIKS NOT SEEKING BELIEF, ETC. [§ 391. If the case is one in which the court determines to take into its control all of the property of the defendant — as, for ex- ample, the property of a corporation or a partnership, or all the property of a debtor, — a general description of the prop- erty is sufficient. The object of the appointment being to preserve the property during the litigation, it follows that the order should embrace authority to do whatever is necessary to preserve the property, even to the extent of giving it addi- tional value. And so where a receiver is appointed to take into custody a going business, either of an individual, a firm or a corporation, the court in its discretion may order the busi- ness continued if deemed for the best interest of all the parties. If it be a quasi-puhlic corporation — as, for example, the prop- erty of a railroad company, a public lighting company, or a telephone company, — the court will order the business to be carried on by a receiver, because public as well as private in- terests are involved. As was said by the court in Gilbert v. Washington City, etc. By. Co.^ "a court of equity having in charge the mortgaged property of a railroad company is authorized to do all acts that may be necessary within its corporate power to preserve the property, and to give to it additional value, not only for the beneSt of the lien creditors, but also for the benefit of the company, whose possession the court has displaced by the ap- pointment of a receiver, and by taking into its own hands the property, rights, works and franchises of the company. Any act, it would seem, necessary for the protection and preserva- tion of the property is a legitimate and proper act, and what- ever is manifestly appropriate to such preservation and protec- tion, or to the enhancement of the value of the property, not in excess of the powers of the corporation, will always be up- held and enforced by the courts." It has been held that " the power of a court of equity to ap- point managing receivers of such propert}' as a railroad, when them that degree of certainty re- in failing to take possession of lands quired to support a final judgment not embraced by it, the court, at the or decree. The exception is in the instance of the party aggrieved, nature of a direction or instruction would readily have corrected the to the receiver, and if he erred in its error." application, either in the taking pos- 1 33 Grat. (Va.) 568, 603. session of lands embraced by it, or § 391.] EKMEDIES NOT SEEKING KELIEF, ETC. 543 taken under its charge as a trust fund for the payment of in- cumbrances, and to authorize such receivers to raise money necessary for the preservation and management of the prop- erty, and make the same chargeable as a lien thereon for its repayment, cannot, at this day, be seriously disputed." ' The order usually provides that the receiver shall give a bond for the faithful performance of the trust imposed upon him in a penal sum fixed by the court, but the order of the appointment relates back to the date of granting, even though it may not be complete until the bond is executed. The appointment con- tmues during the pendency of the litigation unless it is limited or modified by the order. From the time of the appointment of the receiver the property is in the custody of the court, as it is said it is in custodia hgis, and not subject to levy or exe- cution or attachments for the debts of the defendant. The order usually recites that the bill of complaint has been filed, read and considered, together with the evidence adduced; if the appointment be made upon motion, that the defendants have been duly notified to appear, and that, after due consid- eration of the premises, "it is ordered, adjudged and decreed by the court that the person selected (naming him) be, and is hereby, appointed receiver of this court of all and singular the property," etc. The order in terms apprises the parties and the person appointed of what property and effects he is ap- pointed receiver. He is ordered and directed to take immediate possession of the property described in the order wherever it may be found. The defendant is ordered to forthwith turn over and deliver to the receiver all the property, rights, inter- .ests and effects described in the order, together with books of account, vouchers, papers, deeds, contracts, moneys or evidences of indebtedness pertaining to the business of the defendant, or the property taken into custody by the court, and generally an injunction is ordered enjoining the defendant from in any way whatever interfering with the possession or management of any part of the business or property over which the receiver is appointed, or from in any way preventing or seeking to pre- vent the discharge of his duties as such receiver. And usually the order further directs the receiver to deposit the money collected in some bank and to report to the court the bank he 1 Wallace v. Loomis, 97 U. S. (7 Otto), 146, 162. 644 EKJIEDIES NOT SEEKING RELIEF, ETC. [§ 391. has selected. It also authorizes him to prosecute and defend all suits that maybe commenced, or which he may commence, necessary to carry out the trust imposed. And as has been said, the order also fixes the amount of the bond, the court reserv- ing the control and direction of the receiver and the business and property in his hands.' The title of the receiver, by virtue lAn approved form of order in the appointment of a receiver over a railway, taken from Loveland's Forms of Federal Procedure, No. 292: (Capiion.) Upon reading and considering the verified bill in this cause, together with the evidence adduced, on motion of counsel for the plaintiff, the de- fendant having been duly notified to appear by its counsel, it is ordered by the court that S. M. be and is hereby appointed receiver of this court of all and singular the property, assets, rights, and franchises of the C. & D. Rail- way Company described in the bill of complaint herein, wherever situated, including all the railroad tracks, terminal facilities, real estate, warehouses, offices, stations, and all other buildings and property of every kind owned, held, possessed, or controlled by said company, together with all other property in connection therewitli, and all moneys, choses in action, credits, bonds, stocks, leasehold interests, operating contracts, and other assets of every kind, and all other property, real, personal and mixed, held or pos- sessed by it, to have and to hold the same as the officer of and under the orders and directions of the coui't. The said receiver is hereby authorized and directed to take immediate possession of all and singular the property above described, wherever situ- ated or found, and to continue the operation of the railroad of said com- pany, and to conduct systematically, in the same manner as at present, the business and occupation of carrying passengers and freight, and the dis- charge of all the duties obligatory upon said company. And said C. & D. Railway Company, and each and every of its officers, directors, agents and employees are hereby required and commanded forth- with to turn over and deliver to such receiver or his duly constituted rep- resentative any and all books of account, vouchers, papers, deeds, leases, contracts, bills, notes, accounts, money or other property in his or their hands or under his or their control, and they are hereby commanded and required to obey and conform to such orders as maj' be given them from time to time by the said receiver or his duly constituted representative in conducting the said railway and business, and in discharging his duty as such receiver; and they and each of them are hereby enjoined from inter- fering in any way whatever with the possession or management of any part of the business or property over which said receiver is so appointed, or from in any way preventing or seeking to prevent the discharge of his du- * ties as such receiver. Said receiver is hereby fullyauthorized to continue the business and operate the railway of said company, and manage all its prop- erty at his discretion, in such manner as will, in his judgment, produce the most satisfactory results consistent with tlae discharge of the public duties imposed on said company, and to collect and receive all income therefrom and all debts due said company of every kind, and for such pur- pose he is hereby invested with full power at his discretion to employ and discharge and fix the compensation of all such officers, counsel, managers, agents and employees as may be required for the proper discharge of the duties of his trust. And said receiver is directed to deposit the moneys coming into his hands in some bank or banks in the city of , and to report his selec- tion to the court. Said receiver is hereby fully authorized and empowered to institute and prosecute all such suits as may be necessary, in his judgment, to the proper protection of the property and trust hereby vested in him, and likewise defend all actions instituted against him as receiver, and also to appear in and conduct the prosecution or defense of any and all suits or proceedings § 391. J EEJIEDIES NOT SEEKING BELIEF, ETC. 545 of the order appointing him, seems to be that of one holding the property as a trustee under the direction and order of the court. now pending in any court against said company, the prosecution or defense of which will, in the judgment of said receiver, be necessary and proper for the protection of the property and rights placed in his charge, and for the interest of the creditors and stockholders of said company. Said receiver is hereby required to give bond in the sum of $100,000, with security satisfactory to this court, for the faithful discharge of his duties, and is also required to make and file full reports in this court quarterly. And the court reserves the right by orders hereinafter to be made, to direct and control the payment of all supplies, materials, and other claims, and to in all respects regulate and control the conduct of said receiver. J. S., Circuit Judge. And thereupon came in open court said S. M., and accepted such appoint- ment, and was thereupon duly sworn according to law, and tendered his bond as required by said order, with W. P. and C. J. as sureties therein, which bond is hereby approved and accepted. And the following order appointing a receiver for a manufacturing cor- poration (Loveland's Forms, No. 293): (Captioii.) ■Upon reading and filing the verified bill of complaint in this cause, together with the verified affidavits of J. W. and G. L., and the exhibits in support thereof, and on motion of the counsel for plaintiff, and coun- sel for defendant appearing and consenting thereto, it is ordered by the court that E. Y., of , in the state of , and C. L., of . in the state of , be and they are hereby appointed receivers of this court of all and singular the property of the N. C. Co. of every description, and all money, claims in actions, credits, bonds, stocks, leasehold interests or operating contracts, and other assets of every kind, and all other prop- erty, real, personal, or mixed, held or possessed by said company, to have and to hold the same as oflficers of and under the orders and directions of this court. The said receivers are hereby authorized and directed to take immediate possession of all and singular the property above described, and to continue the business of said company. Each and every of the officers, directors, agents and employees of said N. C. Company are hereby required and commanded forthwith, upon de- mand of the said receivers, to turn over and deliver to such receivers any books, papers, moneys, or deeds, or property, or vouchers for the property, under their control. The .said N. C. Company and its officers are hereby directed immediately to execute and deliver to the said receivers deeds of all real estate now owned or possessed by said company, and transfers and assignments of all their property. Said i-eceivers are hereby fully authorized to institute and prosecute all such suits as they may deem necessary, and to defend all such actions in- stituted against them as such receivers, and also to appear in and conduct the prosecution or defense of any suits against the said N. C. Company. The said receivers are hereby authorized and directed, out of the moneys coming into their hands, to pay and discharge all amounts due to employ- ees upon the current pay-roll. Each of the said receivers is required to file with the clerk of the court within ten days from date a proper bond, the sureties to be approved by the clerk of this court, in the penal sum of dollars. All creditors of said N. C. Company are hereby enjoined from in any way intermeddling with the property hereby directed to be turned over to said receivers; and all officers, directors and agents of said N. C. Company are hereby enjoined from interfering with or disposing of said property of said N. C. Company in any way, except to transfer, convey and turn over the same to said receivers. J. S., Circuit Judge. 35 546 BEMEDIES NOT SEEKING BELIEF, ETC. [§ 392. § 392. The title or right of possession and control of the receiver. — By its order the court has laid its hand upon the property and effects of the defendant and taken them into its custody and control to await its further order. It has directed the defendant to turn them over to the court's officer — the re- ceiver — and thus deprive him of them during the pendencj' of the suit. B}' this order the receiver takes all the right, title and interest that the person or defendant for whom he is ap- pointed receiver has in the property at the time the appoint- ment is made for the purposes of the appointment, subject, to all legal claims or defenses against it.^ The receiver, as to the property of the defendant over which he is appointed and also as to third persons, stands in the same position, possessing the same rights and benefits as the defendant himself. Any right or benefit which the defendant might have sustained with reference to the property, the receiver may sustain. Any de- fenses, liens or claims that might be made against the defend- ant at the time of the appointment may be made against the receiver. The receiver, as to the property, stands as a repre- sentative of the defendant.- He has been held to be merely a ministerial agent of the 'Nealis V. Insley, 67 N. Y. S, 235; -though the order appointing such re- Auton V. City, etc. Ry. Co., 104 Fed. ceiver was made by the judge of the 305; Montgomery V. Enslen, 126 Ala. court at his residence before such 654. 28 So. 6,16. In Battery Park Bank payment. Wilcox v. National, etc V. Western Carolina Bank, 137 N. C. Bank, 73 N. Y. S. 900. In Gillam v. 483, 37 S. E. 461, held, that the title Nussbaum, 95 111. App. 277, it was of a receiver relates only to the time held that the receiver appointed over of his appointment, and valid liens partnership property takes only such against the_ property of the estate title as the partners had, and the existing at the time thereof are not property is subject to all valid and divested thereby. subsisting liens thereon. In Long- 2 Peterson v. Lindskoog, 93 111. x\pp. fellow v. Barnard, 58 Neb. 612, 79 N. 276. Where a bank holding the note W. 355, it was held that the appoint- of a depositor payable at the bank ment of a receiver is in the nature of on the day of its maturity pays such an equitable execution; that by it note by transferring a portion of his the court is able to reach only such deposits to the account of the bank, interests of the debtor in the prop- having no knowledge of his insolv- erty impounded as the creditors ency, and the transfer being made themselves might have reached with before the order ofthe supreme court an execution. Wilt v. Electric Co., appointing a receiver was filed with 187 Pa. St. 424; Kane v. Lodor, 56 n! tlie clerk of the court, it was held J. Eq. 268; American, etc. Bank v. that the payment was valid, even McGettigan, 152 Ind. 582, 52 N. E. 793. § 392.J EEMEDIES NOT SEEKING EELIEF, ETC. 547 court to hold the property or the fund intact until the several rights of the claimants thereto can be determined; that al- though his possession is exclusive, the property is held by him subject to all valid liens existing against it at the time of his appointment, but that after the property passes into the ex- clusive jurisdiction and control of the court no liens against it can be obtained, and no preferences acquired by any action the claimants may take; for it is not subject to execution or interference without the permission of the court who appointed the receiver.! The court and its receiver, however, will recognize exemp- tion laws, and therefore will confer no right or title to prop- erty which is by law exempt from levy and sale upon execution upon the receiver; nor is the receiver entitled to money due for a pension.- By way of collecting and caring for the in- terest of the debtor over whom he is appointed, and for the benefit of the creditor claimants, and under the direction and supervision of the court, the receiver may be authorized to complete the execution of contracts, collect judgments, and in case of the estates of infants make investments, and do and perform that which is for the best interest of the parties con- cerned in the litigation.^ So, where a receiver was appointed for a manufacturing company and was authorized to continue the business as it was formerly conducted, or as in his judg- ment might be necessary to preserve its outstanding contracts from loss, to enable him to collect accounts due or to become ■due, it was held that he was authorized to purchase a consign- ment of supplies to complete goods contracted for before his appointment; and that he might make such purchases in the state where he was appointed, or any other state, without be- 1 Cramer v. Her, 63 Kan. 579, 66 A. 321; Isaacs v. Jones, 121 Cal. 257; Pao. 617. In Reynolds v. ^tna Life Cass v. Sutherland, 98 Wis. 551;Bulkly Ins. Co., 160 N. Y. 635, it was held v. Little, 154 N. Y. 742, 49 N. E. 1094; that a receiver of a judgment debtor Ward v. Petrie, 157 N. Y. 301, 307, takes title to life endowment policies 51 N. E. 1002. payable to the debtor or his estate ^ Finnin v. Malloy, 33 N. Y. Sup. though their existence may be un- Ct. 382; Hudson v. Plets. 11 Paige, known to the receiver at the time of Ch. (N. Y.) 180; Cooney v. Cooney, 65 his appointment. Pelletier v. Green- Barb. (N. Y.) 524. ville Lumber Co., 123 N. C. 596, 31 3 Alston v. Masseuburg, 125 N. C. S. E. 855; Clark v. McGhee, 31 C. C. 582, 34 S. E. 633. 548 EEMEDIES NOT SEEKING EELIEF, ETC. [§ 393. coming personally liable therefor, if he disclosed his character and source of authority at the time or before the purchase.' Where advances were made to the receiver pending the re- ceivership under the permission of the court and in reliance on its order requiring repayment, if the income accruing to the receiver was sufficient therefor, it was held proper to make an order directing the receiver to return to the party such ad- vances.^ S 393. The New York rule. — The courts of the several states have quite generally followed, in cases of creditors' bills, the rule of practice adopted in the early JSTew York chancery court, where on hearing the motion for a receiver the court either made the appointment or referred it to a master to do so, or to inquire and report to the court a suitable person to be appointed.' Upon reference to the master, the solicitor for the complainant may summon the defendant and examine him be- fore the master in relation to the property which by the court he is ordered to assign and deliver to the receiver. The object of the examination, it is said, " is not to obtain an answer to the bill nor to elicit evidence to sustain the suit; but it is to pro- cure and compel the delivery to the receiver of all property and effects which the defendant has in his possession or under his control; and the rights of the complainant to examine the defendant before the master, as to such property, are the same where the defendant answers to the bill as where he suffers it to be taken as confessed; except where the defendant has given a stipulation under the rule.^ Under the usual order of refer- ence, the only objects of authorizing the examination of the defendant and of witnesses are to ascertain the nature and value of the defendant's property, to enable the master to de- termine who would be a proper receiver thereof, and the amount of security to be given by the receiver; and to enable the complainant and the receiver to ascertain whether the order of the court is complied with by the defendant in deliv- ering over the whole of his property." ' 1 Sager Mfg. Co. v. Smith, 60 N. Y. ^ Browning v. Bettis, 8 Paige Ch. S. 849. (N. y.) 568. •■i Elk Fork, etc. Co. v. Foster, 39 C. 6 2 Barb. Ch. Pr. (2ded.), top paging: C. A. 615, 99 Fed. 495. 670. 'Attorney-General v. Bank of Co- lumbia, 1 Paige Ch. (N. Y.) 511. § 394.J EEMEDIES NOT SEEKING BELIEF, ETC. 549 In such cases, upon the order of reference being made under the rule, or an order appointing a receiver, the defendant is bound to execute to the receiver a formal assignment of his property, including all equitable interests and choses in action as directed by the order, and this though he should deny under oath that he has any property.' The purpose and necessity of such assignment seems to be to enable the receiver to test the validity of any assignment or other disposition the defendants may have made of their property, and as an authorization to the receiver to bring suits in his own name in cases where he is legally authorized to do so either at law or in equitj'. But it would seem under modern practice that the rights of the receiver are fixed by the order appointing him rather than by the assignment of the defendants, and that whether the as- signment is executed or not he may proceed to collect the property of the defendant by suit or any other legal means. The procedure and practice, however, is generally fixed by statute and rules of court in the several jurisdictions. § 394. Something of the powers, duties and obligations of the receiver. — The duties of a receiver are entirely minis- terial. He acts under the direction and guidance of the court. His office is one of confidence and trust; he is appointed upon a principle of justice for the benefit of all concerned. His ap- pointment has been said to operate as an equitable execution for the reason that every kind of property of such a nature that if legal it might be taken in execution, may, if equitable, be put into his possession. The primary object of his appointment is to collect and pre- serve the assets and property to be paid out or distributed as 1 In Chipman v. Sabbaton, 7 Paige where he was legally authorized to Ch. (N. Y.)47, it was held that under sue in that manner either in law or the order for the appointment of a in equity. But if the defendants receiver in such a case the defend- swear that they had no property or ants were bound to execute to the choses in action in their possession receiver a formal assignment of all or under their power and control, their property, equitable interests, the execution of the formal assign- €tc.. as directed by the order, to en- ment was all that could be required able such receiver to test the valid- of them unless it appeared by other ity of any assignment or other dis- testimony that they had sworn position they might have previously falsely as to such property and ef- raade of their property, and to bring fects. a suit in his own name in cases 550 EEJIEDIES NOT SEEKING BELIEF, ETC. [§ 394. the court may direct in its final decree. His custody of the property is the custody' of the law, but the tendency of the equity court, because of the growth and progress of its juris- diction, is to clothe the receiver with much larger powers than were formerly conferred ; as, for example, in some of the states by statute they are charged with the duty of settling the affairs of large corporations and important interests; to conduct the business of such corporations, and to bring suits in their own names when necessary. As has been said: "It is not unusual for courts of equity to put them in charge of the railroads of companies which have fallen into financial embarrassment, and to require them to operate such roads until the difficulties are removed, or such arrangements are made that the roads can be sold with the least sacrifice of the interests of those con- cerned. In all such cases the receiver is the right arm of the jurisdiction invoked."^ The receiver is the mere agent or instrument through whom the law takes into its custody the assets and property of the defendant. He has no independent authority or power; he is appointed in behalf of all the parties to the litigation, not merely on behalf of the complainant or of the defendant. His duties are equal and alike to all; he is responsible to the court 1 Davis V. Gray, 16 Wall. (U. S.) in which he was appointed. Nocred- 203, 219; New York, etc. Tel. Co. v. itor having a claim against the rail- Jewett, ll.T N. Y. 168, where, in dis- road company or its property could cussing the office and duty of the re- sue the receiver or obtain payment ceiver where the court had taken out of the property except by the into its possession the property of a consent of the court. A creditor de- railroad company to dispose of, man- siring payment out of the property age and administer it for the benefit in such a case is obliged to apply to of all parties interested therein, or the court, and for the purpose of having claims against the same, the having the claim adjudicated it may court said : " The receiver was merely authorize a suit against the receiver, its ofHcer, arm or agent, to take pos- or it may hear the claim upon a session of the property and manage summary application upon affidavits and dispose of the same under its or oral evidence; or, where the claim direction and subject to its control, is disputed, it may order a reference; He could at any time be discharged and whether the proceeding be by the court and another receiver against the receiver by action or by appointed, or the property could be a summary application, the purpose taken out of his hands and restored is to enable the court to determine to its owner or otherwise disposed of whether the claim ought to be paid." under the judgment in the actions § 394.] REMEDIES NOT SEEKING RELIEF, ETC. 551 and acts only under its orders and authority.' He may orig- inate proceedings for the purpose of obtaining orders of tlie court as to the conduct and management of the business in- trusted to him, and may apply to the court for general advice and instructions. As we have seen, he may carry on and con- duct the business of the defendant over whom he is appointed receiver, under the direction of the court; mSij carry out the incompleted contracts, or even borrow money, collect the as- sets and retain the care and custody of the property for the future disposition of the court. He may receive money not yet due under certain circumstances, and give reasons there- for; ma}' take possession of and use the funds in bank for the purposes of the business without the special order of the court when it is incident to the business he is authorized to cany on.^ He may, by leave and under directions of the court, in- stitute such suits at law as are necessary to obtain the possession and control of property belonging to the defendants and over which he is appointed receiver. He may obtain a writ of as- sistance for the purpose of collecting rents, or writs of seques- tration where a party refuses to deliver property, and may, under direction of the court, compromise debts when he deems it for the best interest of the estate; or sell or dispose of prop- erty by direction of the court; may make repairs; may bring actions, defend suits and do and perform that which is for the interest and benefit of the estate over which he is ap- pointed. But the receiver has no authority, by virtue of his appointment, to seize property or take forcible possession of it, but must obtain lawful possession, and to that end enforce his possession by lawful means. The powers of the receiver are always limited by the order of the court. All his actions are under the immediate control of the court, and he must 1 Attorney-General v. North Am. Railway Company; and such carry- Life Ins. Co., 89 N. Y. 103; Hill v. ing on and operating contemplated Parker, 111 Mass. 508, 15 Am. Rep. 63; and required the handling, receiv- Booth V. Clark, 17 How. (U. S.) 381. ing and paying out of money, the 2 In Southern Development Co. v. payment and collection of bills, and Houston, etc. Ry. Co., 27 Fed. 344, the transaction of such financial the court held that the receivers were business as would require the me- authorjzed and directed to carry dium of and accommodation of on and operate the railways and banks. property of the Houston & Central 652 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 394. constantly apply to the court for its advice and sanction. On the other hand, the court will take supervision as to all actions or proceedings against him, and " will not allow him to be sued touching the property in his charge, nor for any malfeas- ance as to the parties, or others, without its consent; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person while in the discharge of his official duties. In such cases the court will vindicate its authority, and, if need be, will punish the offender by fine and imprison- ment for contempt."^ The reason of the rule is said to be that it is essential for the protection of receivers against un- necessary and oppressive litigation and should be carefully maintained.^ The receiver, being an officer of the court, is directly responsible to the court which appoints him for any misappropriations, or any negligence or misconduct in the per- formance of his duty, and for any failure to comply with an order of the court requiring him to report his proceed- ings, or to pay the money into court, or to dispose of the funds and the property in his hands as directed by the court. His liability only ceases when he has been discharged and the property has been taken out of his possession, and he has entirely fulfilled the orders of the court and turned over all the money, funds and property in his hands in compliance with the court's direction.' 1 Davis V. Gray, 16 Wall. (U. S.) set aside a fraudulent conveyance of 203, 318; Verplanck v. Mercantile, other land made by the pui-ohase- eto. Co., 3 Paige Ch. (N. Y.) 453. money debtor in order to subject it 2 In Degroot v. Jay, 30 Barb. (N. Y.) to the payment of the debt which he 483, it was held : " The receiver is an was ordered to collect. McAllister officer of the court, and by the well- v. Harmon, 97 Va. 543: Minot v. settled practice, permission of the Mastin, 37 C. C. A. 334; Smith v. court was necessary to warrant Railway Co., 151 Mo. 391. As to ob- an action against him. This rule is taining leave of court to bring actions essential for the protection of re- against receivers. Pierce v. Chism, ceivers against unnecessary and op- 33 Ind. App. 505, 55 N. B. 795; pressive litigation, and should be Goodnough v. Gatch, 37 Oreg. 5, 60 carefully maintained." In Parker v. Pao. 383; Kirk v. Kane, 87 Mo. App. Browning, 8 Paige Ch. (N. Y.) 388, 274; Wilson v. Rankin, 129 N. C. where a receiver had been directed 447, 40 S. E. 310; Murray v. Etche- to collect purchase-money due for pare, 182 Cal. 286, 64 Pac. 282. land, the sale of which had been ^ Dq Winton v. Mayor, etc., 28 confirmed, it was held that this did Beav, 300, where it was held that if not authorize him to bring a suit to the court has distinct evidence be- ;§ 395. J EEMEDIES NOT SEEKING BELIEF, ETC. 553 § 395. Foreign and ancillary receivers. — It is a general rule that the powers of a receiver are co-extensive only with the jurisdiction of the court that appoints him, but this general rule is subject to an exception which has beconae so well settled that it must be considered as a part of the rule, for it is gen- erally conceded that a receiver duly appointed and acting in a cause in pursuance of the orders of the court to collect the property and effects of the defendant will be recognized and permitted to act in a foreign jurisdiction, unless it would con- flict with the policy of the court of that jurisdiction, or un- justly interfere with the rights of its own citizens or parties to suits in the jurisdiction. This is regulated by the comity of states, and is in harmony with those principles which regulate the intercourse of governments. And so it may be said to be a general rule that after completely protecting its own citizens and laws, the dictates of international comity require that the courts of every government should render every assistance in their power to further the execution of the authority of foreign •tribunals, and in so doing will acknowledge and aid its officers. Opposed to this principle there can be no legal reason. To rec- ognize a different rule would not only be without the sanction •of sound legal principles, but would frustrate and set at naught the procedure of the foreign court simply for the sake of do- ing so, and with the only result that the court would be baffled and prevented from doing justice. And it cannot be said that this is the legal attitude of governments toward each other. The question rests entirely upon the comity which exists be- tween the different states. It is upon this that the courts of ■one state recognize and enforce the acts of a receiver who is appointed in another state. This was discussed in Hurd v. City of Elizabeth,^ where the fore it that sums of money received 610, where it was held that money by the receiver are bemg misapplied in the hands of a receiver is in his and paid to persons having no title possession as a custodian and that he to them, then, although the time for alone is responsible for it; that it is passing his accounts has not yet ar- at his own risk that he parts with irived, the court will direct that the it without an express order of the matter be suspended until the re- court. See Commonwealth v. Insur- ■ceiver has passed his accounts and ance Co., 14 Allen (Mass.), 344. that the funds be secured in the ^ 41 N. J. Law, 1, 4. In Sercomb meantime. Ricks v. Broyles, 78 Ga. v. Catlin, 128 111. 556, 563, the court 654 EEilEDIES NOT SEEKIXl> BELIEF, ETC. [§ 395.- contention was that the receiver was confined to the jurisdic- tional limits of the tribunal that appointed him. The court in its opinion saj' : "There are certainly dicta that go even- to that extent, so that text-writers seem to have felt them- selves warranted in declaring that the powers of an officer of this kind are strictly circumscribed by the jurisdictional limits- of the tribunal from which he derives his existence, and that he will not be recognized as a suitor outside of such limits. Eut I think the more correct definition of the legal rule would be that a receiver cannot sue, or otherwise exercise his func- tions, in a foreign jurisdiction whenever such acts, if sanc- tioned, would interfere with the policy established by law in such foreign jurisdiction. There seems to be no reason why this should not be the accepted principle. When there are no- persons interested but the litigants in a foreign jurisdiction,, and it becomes expedient, in the progress of such suit, that the- property of one of them, wherever it may be situated, should be brought in and subjected to such proceeding, I can think of no objection against allowing such a power to be exercised.. It could not be exercised in a foreign jurisdiction to the disad- vantage of creditors resident there, because it is the policy of every government to retain in its own hands the property of a debtor until all domestic claims against it have been satis- fied. But beyond this precaution, why should any restraint be put upon the foreign procedure?" And where citizens of a state are creditors of the foreign corporation and have pro- say: "Undoubtedly the general rule is, 19 N. Y. 207." In Ward v. Pacific that the powers of a receiver are co- Mutual, etc. Co., 135 Cal. 335, 67 Pac. extensive only with the jurisdiction 124, it was held that though a re- of the court which appoints him. ceiver of one state is sometimes. C, M. & St. P. Ry. Co. V. Packet Co., through comity, allowed to sue in 103 111. 317. He has no extra-terri- another state, he cannot do so where torial power of official action. But the claim sought to be enforced con- a receiver appointed in one state flicts with the rights of citizens or may, by comity, be permitted to re-, creditors in the state where the suit cover the possession of property in is brought; that the burden of prov- another state, provided no citizen or ing that he has the right to sue is suitor of the latter state is thereby upon the receiver. Homer v. Barr prejudiced or injured. High on Re- et al., 180 Mass. 163, 61 N. E. 883; ceivers, sec. 47; Hunt v. Columbian Pepper v. Supreme Court Counsel, Ins. Co., 55 Me. 290: Hoyt v. Thomp- etc., 70 N. Y. S. 637. son, 5 N. Y. 320; Hoyt v. Thompson, § 395. J REMEDIES NOT SEEKINU RELIEF, ETC. 555 ceeded bj' attachment against the corporation and acquired a lien upon its property in the state of their residence, the re- ceiver appointed by the foreign state will not be allowed to deprive them of their rights, and the court, upon the principle already mentioned, will protect the lien acquired by its own citizens and follow out its own policy in preference to assist- ing or aiding the claim or right asserted by the receiver of the foreign court. This was illustrated in Hunt v. Ins-urance Co.^ where the court in its opinion said : " The receivers, who assert this claim here, are merely the servants of the court in New York, hav- ing legal authority co-extensive only with the jurisdiction of the court by whom they were appointed. Upon principles of comity, often recognized and always acted on, except when they come in conflict with paramount rights of suitors in our courts, they might be admitted here to protect the interests and enforce the claims of the corporation of whose afPairs they are the legal guardians there. But comity does not require us to permit the exercise of such privileges to the detriment of our own citizens who are pursuing appropriate legal remedies in this court." This doctrine is often invoked in cases for the foreclosure of mortgages upon railroad property where the defendant company's property, which is mortgaged, is located in several adjoining states; the company being incorporated in each of the states, the courts of one of the states may, in a proper case, appoint a receiver to take charge of the entire property of the company thus mortgaged, and will be recognized by the courts of the several states in which the property is lo- cated and the company incorporated, and be aided in carrying out the orders of the court appointing hira.^ And in cases where 1 55 Me. 290, 397. to apply its revenues, the only means ^ State V. North Central Ry. Co., 18 of paying the annuity, to the pay- Md. 193, 215, where a mortgage of ment of junior incumbrances. The the entire line of defendant's road, line of railroad mortgaged extended with all tolls and revenues thereof, into the state of Pennsylvania. The was executed to the state of Mary- Maryland court was asked to appoint land to secure the payment of an an- a receiver and to grant a writ of in- nuity, it being shown that the com- junction. The court, among other pany, in violation of its duty, was things, say: "Equity will appoint a applying and intended to continue receiver at the instance of parties 556 REMEDIES NOT SEEKING BELIEF, ETC. [§ 395. several railroads, located in diiJerent states, are consolidated in one system or operated by one company.' And it has been held that where ancillary receivers are appointed in other juris- dictions they must report to and be governed by the court benefloially interested where there is no fraud or spoliation, if it can be satisfactorily established there is danger to the estate or fund unless such step is taken. . . . The com- plainant occupies the relation to the respondents in this case of second and third incumbrancer; the sub- ject of the mortgage is not suscepti- ble of occupation by the complain- ant or any of its agents, without the intervention of the courts of this state or of Pennsylvania; the relief prayed, the sale of the railroad, can- not be effected without protracted litigation, and the tolls and revenues, which are expressly pledged, are in the meantime diverted to the pay- men t of debts of junior obligation and lien. Besides these obstacles to the ordinary remedies of a mortgagee, the greater part of the line of the railroad, lying without the state, the tolls and revenues, being claimed bj' adverse creditors or subject to vari- ous conflicting incumbrances, can only be collected and held by an of- ficer of a court of equity, consist- ently with the rights of the parties litigant. . . . The mortgage con- veying to the complainant the entire line of railroad belonging to the said company . . . with all the rev- enue or tolls thereof, it becomes necessary to inquire, in order to de- termine the extent of the power and duties of the receiver, what passes under the mortgage deed. In Sey- mour V. Canandaigua & Niagara R3'. Co., 35 Barb. 309, 310, where a rail- road company executed a mortgage upon its railroad, constructed and to be constructed, a question arose whether the branch track at Tona- wanda, to the Niagara river, or to the docks on the bank of the river- passed. This branch was not laid out at the time of the original loca- tion or mortgage, and was not then projected or located. It was held to be covered by the mortgage as an incident to the principal subject of the grant, upon the maxim that who- ever grants a thing is supposed tac- itly to grant that without which the grant would be of no effect. ' When a thing is granted, all the means to attain it, and all the fruits and ef- fects of it, are granted also. It is a rule of law that the incident passes by the grant of the principal; what- ever is essential to the use and en- joyment of the principal thing.' " 1 In Wilmer v. Atlanta, etc. R3-. Co., 3 Woods (U. S.), 409, 419, where the railroad in question was located in three different states, but under proper provisions of the different legislatures was consolidated with its principal office at Atlanta, Georgia, the property having fallen into the hands of two different receivers ac- countable to three different courts, the court under such circumstances appointed one receiver to take charge of the property. The court say: "As the property of the defendant com- pany is one entire and indivisible thing, and as it is all covered by one deed of trust, there seems to be no good reason why this court should not appoint a receiver for the whole, even though a part of the property may extend into another state. The court having jurisdiction of the de- fendant can compel it to do all in its power to put the receiver in posses- sion of the entire property. If other persons outside the territorial juris- diction of this court have seized the § 395.] REMEDIES NOT SEEKING BELIEF, ETC. 557 maldng the original appointment as to all matters relating tc the genera] management of the trust and the general operation of the property. In Ames V. Union Pao. Ry. Co} the court say: "It is un_ necessary to discuss or decide here whether the circuit court sitting in Colorado or Wyoming is a court of ancillary juris- diction in the matter of this receivership. These receivers were first appointed in this court sitting in JSTebraska. So far as the general management of the trust imposed upon them, the gen- eral operation of the railroad system in their charge in this circuit, and their general accounting, is concerned, they must report to and be governed by this court sitting in ?\"ebraslca. The impracticability of properly administering this great trust under any other practice, and the intolerable confusion which would result from contradictory orders regarding- these sub- jects made in the different districts in the circuit, will com- mend this rule of practice to every judge within the jurisdic- tion, and prevent any interference or modification of the orders issued in these matters by the circuit court for the dis- trict of Nebraska, except by appeal or upon rehearing; but the circuit courts in the districts of Colorado and Wyoming have jurisdiction to hear and determine the claims of the citizens of those districts against the insolvent corporation and the re- ceivers of it, and their determination of those matters will be equally respected by the court sitting in Nebraska. Citizens of one district will not be required to go to another district to assert their claims against receivers appointed by the courts of both districts." The relations of receivers and ancillary receivers have been put upon the same basis as administrators and ancillary ad- ministrators. In discussing this question the United States su- preme court has said : " Where a receiver or administrator or other custodian of an estate is appointed by the courts of one state, the courts of that state reserve to themselves full and property of defendant, the receiver courts of other jurisdictions would may be compelled to ask the assist- feel constrained, as a matter of anceof the courts of that jurisdiction comity, to afford all necessary aid in to aid him in obtaining possession, their power to put the receiver of but that is no reason why we should this court in possession." hesitate to appoint a receiver for '60 Fed. 966, 974; Union Trust Co. the whole property. We think the v. Atchison, etc. Ry. Co., 87 Fed. 530> 55S KEMKDIES NOT SEEKING BELIEF, ETC. [§ 396. exclusive jurisdiction over the assets of the estate within the limits of the state. Whatever orders, judgments or decrees may be rendered by the courts of another state, in respect to so much of the estate as is within its limits, must be accepted as conclusive in the courts of primary administration; and whatever matters are by the courts of primary administration permitted to be litigated in ti^e courts of another state come within the same rule of conclusiveness. Beyond this the pro- ceedings of the courts of a state in which ancillary adminis- tration is held are not conclusive upon the administration in the courts of the state in which primary administration is had. And this rule is not changed, although a party whose estate is being administered by the courts of one state permits himself or itself to be made a party to the litigation in the other. .Whatever may be the rule if jurisdiction is acquired by a court before administration proceedings are commenced, the moment they are commenced, and the estate is taken possession of by a tribunal of a state, that moment the party whose estate is thus taken possession of ceases to have power to bind the estate in a court of another state, either voluntarily or by sub- mitting himself to the jurisdiction of the latter court." ' §396. Interference with receivers — Contempt of court. The entire conduct of the estate of the defendant over which a receiver has been appointed is in the hands and under the control of the court. The receiver, as has been said, is the hand of the court. He is the officer and the agent through 1 Reynolds v. Stockton, 140 U. S. rights or liens on local assets, it 254, 272. Where a receiver has been would make no distinction between appointed for a foreign building as- foreign and domestic creditors; the sociation in its domicile state, it has claims stand on equal footing, and been held no objection to the ap- that the court in its discretion could pointment of a receiver to marshal distribute the assets in its control or the assets in another state, it being transmit them to the primary re- for the court to decide whether the celver. Southern Building & Loan affairs of the insolvent could be con- Ass'u v. Price, 88 Md. 1.50, 41 Atl. 53, ducted more equitably thus, or by 42 L. R. A. 206; Witters v. Bank, 171 the appointment of a foreign re- Mass. 425. In Re Brant, 96 Fed. 257, ceiver to act in the state. Security, it was held that an ex parte ap- eto. Ass'n v. Moore, 151 Ind. 174, 50 plicationof an ancillary receiver will N. E. 869. In Sands v. E. S. Greeley not be entertained except in a pend- & Co., 31 C, O. A. 424, 88 Fed. 130, it ing suit. Greene v. Star Cash, etc. was held that while the court would Co., 99 Fed. 656. protect local creditors having prior -§ 396.] EEMEDIES NOT SEEKING RELIEF, ETC. 559 -whom the court executes its orders, and in the lawful execu- tion of the court's orders he is a part of the court. It there- fore follows that any interference with this officer, the receiver, in the execution of the court's orders will be punished by the court as for a contempt. This is a rule in the interest of the due administration of justice and is inflexible. The court will pro- tect its officer in the administration of his duty. And it is said that the interference will be punished as contempt, even if the order appointing a receiver was erroneous or improvi- dently made, for the court will not review the questions which were passed upon when the receiver was appointed in a pro- ceeding to punish for contempt. The only question to be con- sidered is, was there an interference with the possession of the receiver appointed under a subsisting order. The court will not allow the possession of the receiver, which is that of the court itself, to be disturbed by any one without its permission.' The same rule obtains as that which is recognized in violation of injunctions. The liability is in no way dependent upon the regularity or legality of the appointment. While the order continues in existence the court requires that it shall receive implicit obedience.- And so jealously and carefully does the 1 Albany City Bank v. Soliermer- interfere with the possession of are- horn, 9 Paige Ch. 372; Cook v. City ceiver, or to disobey an injunction, Nat. Bank, 73 Ind. 256: Noe v. Gib- or any other order of the court, on ■son, 7 Paige Ch. 513; Richards V. Peo- the ground that such orders were pie, 81 111. 551. Lord Truro in Russell improvidently made. Parties must V. East Anglian R. Co., 3 Mao. & G. take a proper course to question 10-t, 116, in a proceeding involving their validity, but while they exist this question, said: "I have looked they must be obeyed. I consider the with care through the very nunaer- rule to be of such importance to the -ous authorities that have been cited, interests and safety of the public, but it is not necessary for me to go and to the due administration of through them. The result appears justice, that it ought on all occasions to be this: that it is an established to be inflexibly maintained. I do not rule of this court that it is not see how the court can expect its ■open to any party to question the officers to do their duty, if they do it orders of this court, or any process under the peril of resistance, and of issued under the authority of this that resistance being justified on court, by disobedience. I know of grounds tending to the impeachment no act which this court may do of the order under which they are which may not be questioned in a acting." ■proper form, and on a proper appli- ^ Moat v. Holbein, 3 Edw. Ch. (N. cation; but I am of opinion that Y.) 188; Sullivan v. Judah, 4 Paige .it is not competent for any one to Ch. 444. 560 EEMEDIES NOT SEEKING RELIEF, ETC. [§ S96^ court guard its possession and right to possession of the receiver- under its orders that it will allow no interference even where the receiver has not yet reduced the property to his possession, and if the person alleged to have interfered had actual notice of the order of the court, although the same had not yet been formally entered, he will be punished for contempt.' Actual notice of the appointment of a receiver is sufficient. A formal notice is not necessary. As we have seen, it is the duty of the defendant to surrender his property to the receiver pursuant to the order of the court, and when he refuses to do so, or when in any way he impedes or hinders the receiver from obtaining possession under the order of the court, he is guilty and may be punished for contempt.- But the defendant is always entitled to be heard as to his possession or control of the property, and so it is the duty of the receiver by proper proceedings to determine what property is under the defend- ant's power and control, and thus obtain from the master an order directing the defendant to deliver the property thus designated by the master before he can be brought into con- tempt for disobeying the order of the court; because the defendant is entitled to have an opportunity to produce wit- nesses for the purpose of showing that the property was not in his possession or under his legal control, and also to enable him to appeal to the court if the decision of the master is claimed to be wrong.' And where in a foreclosure proceeding ' In Hull V. Thomas, 3 Edw. Ch. were absent when the order was pro- (N. Y.) 336, where the defendants nounced. The lord chancellor said: were held guilty of a contempt in "If these parties by their attendance having known that an injunction in court were apprised that there was to issue and a receiver to be ap- was an order, that is sufficient; and pointed, although the order was not I cannot attend to a distinction so entered or the process served, the thin, as that persons, standing here court say these parties acted con- until the moment the lord ohancel- trary to the order which the court lor is about to pronounce the order, pronounced after they had been told which from all that passed they of it by the defendant; they realized must know will be pronounced, can, money upon the notes in order to de- by getting out of the hall at this in- feat the object of the order. They stant, avoid all the consequences." must be adjudged guilty of con- Skip v. Harwood, 3 Atk. (Eng.) 564. tempt. In Hearn v. Tennant, 14 2 People v. Rogers, 2 Paige Ch. 103- Ves. 136, a motion was made for an ^ Cassilear v. Simons, 8 Paige Ch.. injunction while the defendant and (N. Y.) 273. his attorney were in court, but they § 397.] EEMEDIES NOT SEEKING RELIEF, ETC. 561 a receiver has been appointed and an order entered requiring a lessee of the premises to pay over to such receiver any rents which she may have collected from the monthly tenants accru- ing since a certain date, it was held the lessee could not be adjudged guilty of contempt of such order for not paying over money collected for rents which accrued on the date men- tioned, as it was not a violation of the order.^ Questions of some difficulty sometimes arise where two different receivers appointed in different actions are claiming possession of the property of the defendant. In such case the court will hesi- tate to exercise its extreme power bj^ commitment for inter- ference with the possession of the first receiver by the second. The question in such case to be determined is one of priority, which is determined by reference to the date of the appoint- ment of the receivers. And in determining the priority as between the receivers it has been held that the court will not take notice of the fractions of a day.^ And so in a controversy between two receivers over the question of possession, the question of priority was determined adversely to the receiver in possession; he was not punished for disobedience to the order of the court appointing the other receiver.^ Proceed- ings for punishment for contempt will only be entertained by the court which made the appointment. §397. Procedure in cases for contempt. — The procedure in cases for contempt is generally fixed by statute or rules of court in the different jurisdictions. The chancery courts usu- ally follow the early New York practice where one of two modes of procedure were pursued: when the misconduct com- plained of is not committed in the immediate view and pres- ence of the court, and when the disobedience does not consist in violation of an order for the payment of money or the dis- obedience to a subpoena. " One of the prescribed modes is by an order on the accused party to show cause, at some future time to be specified in the order, why he should not be pun- ished for his alleged misconduct; and the other is to grant an attachment to arrest the accused and bring him before the court to answer for such misconduct. In either mode of pro- 1 Moore v. Smith, 74 N. Y. S. 1089. 3 People v. Central City Bank, 53 2 Worth V. Piedmont Bank, 121 N. Barb. 413; Ward v. Swift, 6 Hare, C. 343, 28 S. E. 488. 309. 36 562 EEMEDIES NOT SEEKING BELIEF, ETC. [§ 397. ceeding, however, the party complaining of the alleged mis- conduct must produce proof thereof, by affidavits, or a sworn petition, or other legal evidence, as the foundation of the pro- ceedings. "Where the party proceeds by an order to show cause, copies of the order and of the affidavits and other papers on which it is founded, and of such other docu- mentary evidence as the prosecutor wishes to use in the case, or as much thereof as is not already in the possession of the accused, must be served on him, or on his solicitor, such length of time previous to the day appointed for showing cause as the court shall in such order direct. And then if the party accused does not appear at the day appointed, or at such other day as may be afterwards designated for that purpose, or if he appears and does not deny the alleged misconduct, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged, and to award the proper punishment. ... If the alleged mis- conduct is denied the court may discharge the order to show cause ; or may allow interrogatories to be filed and refer it to a master to take the answers of the accused to such interroga- tories, and to take such proof as either party may wish to offer, and report the same to the court. But the proofs themselves should be reported to the court, and not merely the master's opinion thereon." ' The usual practice, however, is, at this stage of the proceed- ing, for the court to hear the answer of the accused and the proofs adduced by either party, and to determine from the af- fidavits and the answer of the defendant and the proofs ad- duced whether the accused has been guilty of the alleged misconduct. The second proceeding is by attachment, where, upon filing a petition and affidavits, the court will issue its writ of attach- ment to bring the defendant into court to answer the con- tempt proceedings. If the defendant is brought into court by the writ of attachment, or voluntarily appears and does not admit the facts alleged which render him guilty of contempt, the court will cause interrogatories to be filed specifjnng the • facts and circumstances of misconduct alleged against the de- 1 Albany City Bank v. Sohermerhorn, 9 Paige Ch. (N. Y.) 373, 373. § 397.] KEMEDIES NOT SEEKING BELIEF, ETC. 563 fendant, and require his answer thereto. And " this appears to be absolutely necessary in a proceeding by attachment, un- less the defendant admits the alleged contempt. Upon such- interrogatories being filed and answered, the court may pro- ceed in a summary manner to decide the question as to the guilt of the accused; or may refer it to a master to take the answers of the defendant to the interrogatories, and to take and report such other evidences as either party may wish to produce before him relative to the contempt."^ Or the court ma}' take the answer of the defendant in open court and such evidence as the respective parties may produce relative to the contempt, and proceed to make its order finding the party guilty or not guilty of the contempt, and in case he is found guilty to adjudge the punishment for the contempt. The order upon the conviction should be clear and explicit; it should re- cite the substance of the alleged misconduct, the adjudication of the court that the accused has been guilty of the contempt, and show that his misconduct was calculated to, and did, im- pair, defeat, impede and prejudice the rights or remedies of the prosecution or the cause of the parties, and may impose a fine sufficient to indemnify them and to satisfy the costs and expenses. If anything further ought in justice and equity to ba done by the party guilty of the contempt, the order should particularly specify what he is to do and the manner in which it is to be done. In case a fine is imposed, the order should direct to whom it is to be paid ; and should be sufficiently definite and explicit to show the nature of the conviction and what the defendant is called upon to do in order to discharge himself from it; and it may go to the extent of imprisoning the defendant until he has purged the contempt by a full com- pliance with the order of the court.^ 1 Albany City Bank v. Sohermerhorn, 9 Paige Ch. 373, 373. ^People V. Rogers, 3 Paige Ch. 103, 104; 3 Barb. Ch. Pr. (2d rev. ed.) 875, 276, etc. CHAPTER XX. INJUNCTIONS. § 398. The remedy. 1)99. Cases in which the court will not grant an injunction. 400. Cases in which courts of equity will allow injunctions. Several Kinds of Injunctions. 401. Kinds of injunctions. Peooedoee. § 403. The bill of complaint. 403. Obtaining the writ. 404. The order, writ or interlocu- tory decree. 405. Injunction bond. 406. Dissolution or modification of the injunction. § 398. The remedy. — The injunction belongs to the second class of equitable remedies which are mandatory in that they command that to be done which the court deems to be essen- tial to justice; prohibitory and protective in that they forbid and enjoin all acts that are contrary to equity and good con- science and preserve and protect the rights and interests of the parties. An injunction may be defined to be a discretionary writ founded upon the exigencies of the particular case alleged in the bill of complaint, commanding the defendant to do, or refrain from doing, a particular thing.^ The writ of injunction is not a writ in rem; it is directed to the person, enjoining and restraining or commanding him to do or refrain from doing certain acts respecting the thing. This writ is sometimes called the right arm of the court of chancery. It is used to restrain a premeditated or threatened act which might result in irreparable injury which could not be adequately compensated for, and for which there is no com- plete and adequate remedy at law. " In theory its purpose is to prevent irreparable mischief; it stays an evil the conse- 1 Judge story defines an in junc- be " a writ framed according to the tion to be " a judicial process whereby circumstances of the case, command- a party is required to do a particular ing an act which the court regards thing, or to refrain from doing a par- essential to justice, or restraining an ticular thing, according to the exi- act which it esteems contrary to gencies of the writ." 3 Story, Eq. equityand good conscience." Jeremy, Jur., sec. 861. Jeremy defines it to Eq. Jur., ch. 3, sec. 1. § 398. "1 INJUNCTIONS. 565 quences of wliich could not adequately be compensated if it were suffered to go on.'" It is said that the writ "is not ex dehitu justitia, for any injury threatened or done to the estate or rights of a person, but the granting of it must always rest in sound discretion, governed by the nature of the case."- And in -another case that "an injunction is not of right but of grace; and to move an upright chancellor to interpose this strongest arm of the law, he must have not a sham case, but a well grounded complaint, the lona fides of which is unques- tioned or capable of vindication if questioned." ^ The exercise of this power is a delicate one and is said to require the great- est caution, deliberation and sound judgment.^ In allowing the writ to issue, "the court looks beyond the actual injury to contemplate the consequences, and however palpable may be the wrong, it will still balance the incon- veniences of awarding or denying the writ, and adjudge as these may incline the judicial mind. Even in the case of a palpable violation of a public right to the annoyance of an in- dividual, he must show the equity which requires this sum- mary interference as the only adequate means of obtaining justice."* The writ is a harsh one, in that it operates to stop the proceeding or the doing of an act against which it is di- rected until the further order of the court, and because of its harsh and sometimes damaging effect, the court in exer- cising its discretionary power should proceed with great care and deliberation. It should clearly appear that some well- recognized principle of law or equity is being violated ; not that the court should require a case which would entitle the plaintiff to relief at all events, but that it should at least be a case where it clearly appears that the transaction is a proper subject for investigation in a court of equity, and where in the exercise of sound judgment and deliberation it appears to the 'Edwards v. AUouez Mining Co., ^ judge Cooley in Edwards v. Al- 38 Mich. 46, 49. louez Mining Co., 38 Mich. 48, 50, 2 Enfield, etc. Co. v. Connecticut citing Grey v. Ohio, etc. Ry. Co., 1 River Co., 7 Conn. 50. Grant (Pa.), 412; Varney v. Pope, 00 3 Kenton v. Railway Co., 54 Pa. St. Me. 192; Bosley v. McKim, 7 Har. & 401, 454. J- 468; Sparhawk v. Union Pac. Ry. 4 Bonaparte v. Camden, etc. Ry. Co., 54 Pa. St. 401. Co., Baldwin (U. S.), 218. 566 INJUNCTIONS. [§ 399. court that the case is one in which it should interfere and pre- serve the property in statu quo during the pendency of the suit in which the rights of the parties to the property are to be decided.^ It has been said that the granting or refusing of equitable relief by way of injunction depends upon the partic- ular facts in each case, and to a great extent is discretionary with the court where it originates.^ § 399. Cases in which the court will not grant an injunc- tion, — The granting of an injunction resting in the sound dis- cretion of the court precludes the possibility of enumerating all the cases in which a court will refuse the remedy, but there are certain conditions and facts, if not formulated and fixed rules, which when they exist in a given case, the court will re- fuse the remedy. (1) The court will not grant an injunction ^mless the right it aims to secure can he determined in advance. Where the bill was filed by one of two proprietors of a common stairway be- tween two adjoining buildings to enjoin the defendant, the other proprietor, " from annoying, hindering, disturbing, or in any way interfering with the enjoyment and use of the stairs by complainant and his tenants, and from tearing down, removing, or in any way injuring or disturbing any sign or signs which complainant or bis tenants may put up," the court said: "But there is a further difficulty which seems to us to be a justification of the action of the circuit court in re- fusing to issue a perpetual injunction. The right which was designed to be secured by it was a right the limits of which could not be determined in advance, so that an injunction would be more likely to breed litigation than to close it. Mani- festly the court could not enjoin defendants from interferino- 1 Nishbet v. Sawyer, 66 Ga. 356; right." . . . Theother is, "whether Great Western Ry. Co. v. Birming- interim interference on a balance of ham Ry. Co., 2 Ph. Rep. 602. In convenience and inconvenience to Shrewsbury v. Shrewsbury & B. Ry. the one party and to the other is or Co., 1 Sim. (N. S.) 410, 426, the vice- is not expedient." chancellor says: "There are two ^ Brass v. Rathbone, 153 N. Y. 435, points on which the court must sat- 47 N. E. 905. And in Nashville, etc. isfy itself: first, it must satisfy itself, Ry. Co. v. McConnell, 83 Fed. 65, it not that the plaintiff has certainly a was said that the fact that the case right, but that he has a fair question is a novel application of the writ is to raise as to the existence of such a not sufficient to prevent its issue. § 399.] INJUNCTIONS. 567 with 'any sign or signs' complainant or his lessees might put up along the common passage-way. They might choose to put up such as, from their size or what was upon them, they could not be justified in erecting. Their right in this regard must be governed by what is customary and reasonable; they can- not go beyond this. But to issue an injunction in that indefinite form would be laying down no more certain rule than the law prescribes now; and a question might be raised for this court to decide in every instance in which a sign was proposed, whether it was reasonable and proper that it should be put up."i (2) The court will not grant an injunction to protect one from an apparent injury which may at any time he legalized. A pro- ceeding by injunction in such a case would be considered a vain thing and without any justifiable purpose; for, although the act might apparently be one demanding the interposition of the court, if in reality the defendant could at any time legalize his action, it would completely answer the complaint of the plaintiff. And so where a defendant had a subsisting right of flowage for saw-mill or grist-mill purposes, and a grant con- veying the right to keep up a mill-dam at a specified height and imposing no restrictions on the use of it, it was held that a court of equity would not interfere to protect the complain- ant against an injury that, because of the rights of the defend- ants, might be made lawful if they chose to do so.^ So where a railroad company had in good faith obtained an assignment of damages by a jury on land which was neces- sary for their railroad, and afterwards, and while the confirma- tion of the inquisition was still pending in the supreme court, tendered the damages assessed and proceeded to use the land, the court refused to enjoin them from constructing the rail, road upon it although the proceedings to condemn the land were not valid until confirmed, for the reason that they could not be prevented from finally obtaining the land and thus le- galizing their rights to enter upon it for the purpose for which it had been condemned. The chancellor said: "If the court had power to restrain the company from taking the land at all, under their charter, I would allow the injunction. But this it 1 Bennett v. Seligman, 33 Mich. 500, 501 ; Bradfleld v. Dewell, 48 Mich. 9, 33. 2 Hathaway v. Mitchell, 34 Mich. 164. 568 INJUNCTIONS. [§ 399. cannot do. The effect of the injunction would be only to ar- rest the construction of the road until the company obtained a right to the land, in the manner pointed out in their charter." ' (3) The court will not grant an injunction when there is a complete and adequate remedy at law. The injunction is an equitable proceeding and can only be allowed in an equitable case. Equity will only take cognizance of a case where the injury complained of is irreparable, and so if the wrong or in- jury sought to be restrained is not an irreparable injury, or if there is an adequate remedy at law, the court of equity will not proceed against it nor grant an injunction restraining the act.^ So it has been held that an injunction will not be granted to restrain the collection of a franchise tax of a foreign cor- poration where the inability of the corporation to pay the tax does not appear, or of the defendant to respond in judgment if the tax be held to have been illegally exacted and no special circumstances alleged justifying the exercise of equitable juris- diction other than consequences which the complainant can easily avert without loss or injury by paying the tax;^ nor 1 Mercer v. Williams et al., Walk, remedy by injunction will not be Ch. (Mich.) 85, 89; Toledo & Ann Ar- granted unless the plaintiff is about bor Ry. Co. v. Detroit, L. & N. Ry. to suffer an irreparable injury, or Co., 63 Mich. 645. one for which there is not an ade- 2 In State v. Capital City Dairy Co., quate remedy at law. Tigard v. 62 Ohio St, 123, 56 N. E. 651, it was Moffi', 13 Neb. 565; High, Inj., p. 28. held that the court would not allow An irreparable injury, within the an injunction at the suit of an in- meaning of the law of injunctions, spector employed by the dairy and has been defined by Pearson, J., in food commissioner to compel a man- Cause v. Perkins, 56 N. C. 177, 69 Am. ufacturer and seller of an article of Dec. 728, as follows: "The injury food or drink to furnish for analysis must be of a peculiar nature, so that samples of tVie articles manufactured compensation in money cannot atone or sold, as provided by statute, be- for it; where, from its nature, it may cause the remedy for refusal is by be thus atoned for, if in the particu- proseoution under the statute. In lar case the party be insolvent, and Eidemiller Ice Co. v. Guthrie, 43 Neb. on that account unable to atone for 238,28 L. R. A. 581,588, the court it, it will be considered irreparable." say: "If the action for damages will ^ Arkansas, etc. Ass'n v. Madden, afford adequate relief — compensa- 175 U. S. 269, 44 L. Ed. 159. In Safe tion in full for the injury inflicted — Deposit, etc. Co. v. City of Anniston, it will suffice, and an action for in- 96 Fed. 661, it was held that where junction will not be entertained. It there is an adequate remedy by is a well-settled general rule that the mandamus the court will not enjoin § 399. J INJUNCTIONS. 569 will an injunction be granted merely to adjudge and settle rights between the parties.' Because of the rule that equity- will not grant an injunction where there is a complete and adequate remedy at law, an injunction will not be granted to enjoin tlie commission of a trespass merely.^ But to this rule there are exceptions. Where the injury complained of is a continuing one, to redress which numerous suits at law would have to be brought from time to time, the court will interpose by its writ of injunction.' And so to avoid a multiplicity of suits a court of equity will restrain threatened trespass by a large number of persons on plaintiff's lands, even though such trespasses, if they were committed, would afford the plaintiff a remedy at law.* And where trespasses are alleged to be repeated, continuing and ruinous, and the damages arising from them irreparable, the court will grant an injunction to restrain such acts.'' For trespass upon mines where the mineral is being taken out and thus continuously destroying the property, courts of equity have allowed injunctions with greater liberality than in cases of ordinary trespass upon lands, for it has been gener- ally conceded that the injuries in such cases are irreparable, as they subtract from the very substance of the suit and tend ultimately to destroy it." a municipal corporation, though in- Pac. 166; Boston, etc. By. Co. v. Sul- solvent, from using its funds, nor livan, 177 Mass. 230, 58 N. E. 689. will a court of equity subject its ^ strawberry Valley Cattle Co. v. funds to the payment of a judg- Chipman, 13 Utah, 454, 45 Pac. 348; ment. Irwin v. Exton, 125 Cal. 622, Koopman v. Blodgett, 70 Mich. 610. 58 Pac. 257; Field v. Village of West- *> In Bettman v. Harness, 42 W. Va. ern Springs, 181 111. 186, 54 N. E. 483, 36 L. R. A. 566, 568, 26 S. E. 271, 929; Hawes v, Withrow, 154 Mo. 397, where an injunction was obtained to 55 S. W. 460; State v. May, 106 Mo. enjoin operations under a lease for 488, 17 S. W. 660; Jersey City, etc. boring wells for oil, the question is Co. V. Blackwell, 58 N. J. Ch. 122, thoroughly discussed and several 44 AtL 153; Sarber v. Rankin, 154 cases cited. The court say: "Will Ind. 236; Birmingham Ry. v. Trac- equity entertain this suit? Counsel tion Co., 121 Ala. 475. for appellants ably insist that the acts 1 East Saginaw Ry. Co. v. Wild- enjoined are but trespass to realty, man, 58 Mich. 286. reparable in damages in a court of 2 Edward V. Allouez Mining Co., 38 law; that no injunction lies; and Mich. 46. that, under cover of injunction, it is 3 Lonsdale Co. v. Woonsocket, 31 an effort to try title to land in equity, R. L 498, 44 Atl. 929. when the law court is open for ad- ■• Kellogg V. King, 114 Cal. 378, 46 equate remedy by ejectment, both wO INJUNCTIONS. [§ 399. While the general rule is that an injunction will not be granted to restrain a mere trespass simply because it is such, it is very different in cases where it appears that the property trespassed upon has some peculiar value which will not admit to recover possession and damages. Clearly, the general rule is that equity will not restrain a mere tres- pass to land, and, under the guise of so doing, try title to land by entertain- ing what may be called an 'eject- ment bill;' but that rule has been found in later years not to answer fully the needs of men in their changing multifarious wants in the calls of life, and we find exceptions fastened upon the rule, fixed as the rule itself. The last case decided by the great Chancellor Kent, driven from the bench in the meridian of his greatness by the constitution of New York because he had attained the age of sixty years, tells us of this change of the old rigor of the rule. Jerome v. Ross, 7 Johns. Ch. 815, 11 Am. Dec. 484. The rule there stated is that 'an injunction is not granted to restrain a mere trespass, where the injury is not irreparable and destructive to the plaintiff's es- tate, but is susceptible of perfect pe- cuniary compensation, and for which the party may obtain adequate satis- faction in the ordinary course of law. It must be a strong and peculiar case of trespass, going to the destruction of the inheritance, or where the mis- chief is remediless, to entitle the party to the interference of this court by injunction.' Judge Story, after a review of the cases, says in 2 Eq. Jur., sec. 928: ' If the trespass be fugitive and temporary, and ade- quate compensation can be obtained in an action at law, there Is no ground to justify the interposition of courts of equity. Formerly, in- deed, courts of equity were ex- tremely reluctant to interfere at all, even in regard to cases of repeated trespasses. But now there is not the slightest hesitation if the acts done, or threatened to be done, to the property would bB ruinous or irreparable, or would impair the just enjoyment of the property in future. If, indeed, courts of equity did not interfere in cases of this sort there would' . . . 'be a great failure of justice in the country.' In trespass to mines there is greater liberality in allowing injunctions than in or- dinary trespass to land, since the in- jury goes to the destruction of the minerals, — the chief value. 1 High, Inj., sec. 730. These principles have been followed in America in oases too numerous to cite here. For some of them see note to Jerome v. Ross, 11 Am. Deo. 498, 500; Indian River S. B. Co. V. East Qoast Transp. Co., 28 Fla. 387; Carney v. Hadley, 32 Fla. 344, 23 L. R. A. 233; note to Smith V. Gardner (Greg.), 53 Am. Rep. 346. 2 High, Inj., sec. 697, em- phasizes this exception of irremedi- able injury. Decisions binding us as authority do not oppose, but recognize this exception. Anderson V. Harvey, 10 Gratt. 386, 398, point- edly recognizes it. There an injunc- tion was sustained against one who, under color of adverse title, was taking out iron ore. In the cases of this state cited by counsel against jurisdiction in equity for this case (McMillan v. Ferrell, 7 W. Va. 323 Cox v. Douglass, 20 W. Va. 175 Sohoonover v. Bright, 34 W. Va. 698 Cresap v. Kemble, 36 W. Va. 603 Watson V. Ferrell, 34 W. Va. 406), this exception of irreparable dam- age is definitely admitted. They were cases of mere naked trespasses, and the omission of this averment § 399.] INJUNCTIONS. 571 of due recompense, or where, by repeated or continuous tres- passes, the property in question will be destroyed; for in such cases it cannot be said that there is a complete or adequate remedy at law, and equity will grant relief by prohibiting the trespass.' There seems to be some disagreement between the Eno-lish and American courts as to whether the court of equity will in- terfere by injunction to restrain the publication of a libel. While the English courts have held that such a publication may be enjoined, the weight of authority in this country seems was mentioned as a want of the bills. Christian v. Vance, 41 W. Va. 754, and Moore v. McNutt, ib. 695, do not bear on this matter, but on the principles of jurisdiction in equity to remove cloud on land title. The jurisdiction for this case is not claimed to rest on the right to re- move cloud on title, but on irrepa- rable injury, and that, jurisdiction being warranted on that ground, the court will go on to adjudicate on the rights of parties, as it has jurisdic- tion for one purpose. It makes no difference, if the elements of irrep- arable injury be present, whether the party doing it be solvent or in- solvent. 1 Beach, Inj., sec. 35. Such being the rule, the question — often of difficulty — is one of its practical application. What is irreparable in- jury? It is impossible to define it inflexibly. Rights of property and its uses change so; so many new rights of property with new uses arise as time goes on. Here is the right to oil and gas a few years ago unknown; the right sometimes in separate ownership. The word 'ir- reparable' means that which cannot be repaired, restored, or adequately compensated for in money, or where the compensation cannot be safely measured. The courts have gener- ally regarded as irreparable injuries the digging into mines of coal, iron, lead, and precious metals, and, as such injuries subtract from the very substance of the estate and tend to its ultimate destruction, equity is said to be prompt to restrain them.'' ' McGregor v. Silver King Mining Co., 14 Utah, 47, 45 Pac. 1091. Where injunctions lie to restrain insolvent persons from repeatedly trespassing on the lands of another, see Hanley V. Watterson, 39 W. Va. 214; Martin v. Davis, 96 Iowa, 718; Carney v. Had- ley, 33 Fla. 344, 33 L. R. A. 333; In- dian River, etc. Co. v. Transp. Co., 28 Fla. 387; Silva v. Rankin, 80 Ga. 79; Lee v. Watson, 15 Mont. 228; Sullivan v. Rabb, 86 Ala. 433; Ham- mond V. Winchester, 82 Ala. 470; Ashmore Highway, etc. v. Green, 156 111. 504; Thornton v. Roll, 118 111. 350; Musselman v. Marquis, 1 Bush (Ky.), 463, 89 Am. Deo. 637; Wilson v. Hill, 46 N. J. Eq. 367: Hilman v. Hurley, 83 Ky, 636. See notes to Chicago & N. W. Ry. Co. V. Dey, 1 L. R. A. 744; Haines v. Hall, 3 L. R. A. 613; Cor- inth V. Lock, 11 L. R. A. 207; Eureka, etc. Co. V. California, etc. Ry. Co., 103 Fed. 897; Oomulgee Lumber Ca V. Mitchell, 112 Ga. 538; Roland Park Co. V. Hull, 93 Md. 301, 48 Atl. 366, It has been held that the cutting of growing trees is an injury to the substance of the estate and good ground for equitable relief by in- junction. United States v. Guglard, 79 Fed. 21 ; Silva v. Garcia, 65 Cal. 591; Smith v. Rock, 59 Vt. 332; Thomas v. Oakley, 18 Ves. 184. -572 INJUNCTIONS. [§ 399. to be the other way. The cases are collected and discussed in s. vigorous opinion by Justice Bradley of the United States su- preme court in Kidd v. Horry ^ where he states that there may be some cases "looking that way." He sums the matter up by saying: "That [the] law clearly is that the court of chancery will not interfere, by injunction, to restrain the publication of a libel." ^ This same doctrine seems to have been adopted by the state courts in De Wick v. Dodson? The court held that an injunction should not be granted to restrain the defendant from continuing to publish an alleged libelous advertisement on the ground that the defendant was wholly irresponsible and its publication would inflict great injury upon the plaintiff. The writ is generally refused upon the theory that there is an adequate remedy at law, though some of the courts have held that it would be repugnant to the provisions of the constitu- tion which gives to every citizen the right to freel}^ speak, write and publish his sentiments on all subjects, being respon- sible for the abuse of the right, and forbids the passing of a law which would restrain or abridge the liberty of speech or of the press.' The holdings of the English courts may be said to be almost entirely the result of statutes passed regulating the jurisdic- tion and practice of their several courts. As early as 1854 there was an enactment regulating the procedure in the common- law courts which gave to those courts the right to issue writs of injunction, both interlocutory and final. The jurisdiction in the chancery court was not enlarged until the adoption of the Judicature Act in 18Y3, by which act all the jurisdiction exer- cised by any of the common-law courts was transferred to what was called the new court — " The High Court of Justice." All acts of parliament applying to any of the old courts were made to apply to the high court of justice, and gave to the chancery division of that court jurisdiction to grant injunctions when- ever it may seem just. One of the provisions In said act is as follows: '■^ A mandamus or an injunction may be granted, or a receiver appointed by an interlocutory order of the court in iKidd V. Horry, 28 Fed. 773, 776. niestic, etc. Co., 49 Ga. 73, 15 Am. 2 46 N. Y. S. 390. Eep. 674; Brandreth v. Lance, 8 Paige 3 Guardian Soc. v. Roosevelt, 7 Daly ^N. Y.), 23, 34 Am. Dec. 368. {N. Y.), 191; Singer, etc. Co. v. Do- § 399.] INJUNCTIONS. 673 all cases in which it shall appear to the court to be just or convenient." ' "While the holdings of the English courts seem to be uniform upon this subject they do not fail to emphasize that in their opinion the use of the injunction in such cases should be very carefully exercised. As was said: "It is a jurisdiction which must be very carefully exercised. No doubt there are cases in which it would be quite proper to exercise it, as, for instance, the case of an atrocious libel wholly unjustified and inflicting the most serious injury on the plaintiff. But, on the other hand, where there is a case to try, and no immediate injury to be expected from the further publication of the libel, it would be very dangerous to restrain it by interlocutory injunction." ' Lord Coleridge, in commenting upon this particular phase of the question, took occasion to say: "It is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which 1 Beddow v. Beddow, 9 Ch. Div. L. R. (1878j,89,93. - Quartz, etc. Co. v. Beall, 20 Ch. Div. L. R. (1881-83), SOI, 508; Her- mann Look "^- Bean, 26 Ch. Div. L. R. (1884), 308. In Bonnard v. Ferry- man, 2 Ch. Div. L. R. (1891), 269, 382, Lord Coleridge, C. J., in delivering the judgment of the court, among other things said: "Two questions only is it really necessary to decide — (1) is there jurisdiction in the su- preme court to issue an injunction to restrain the publication of an al- leged libel, either at all, or before the libel has been adjudged to be such? And (2) is this a case in which, as a matter of discretion, the juris- diction should be exercised, if it ex- ists ? The decision of the first ques- tion is, it is manifest, independent of the circumstances of any particu- lar case; the decision of the second entirely depends upon them. As to the first we are unable to entertain any doubt; the point is clear, and is settled by authority. The authorities, indeed, are few and recent, for very obvious reasons; but they are uni- form, and they are clear. Prior to the Common Law Procedure Act 1854, neither courts of law nor courts of equity could issue injunctions in such a case as this; not courts of equity, because oases of libel could not come before them; not courts of law, because prior to 1854 they could not issue injunctions at all. But the seventy-ninth and eighty-second sections of the Common Law Pro- cedure Act, 1854, undoubtedly con- ferred on the courts of common law the power, if a fit case should arise, to grant injunctions at any stuge of a cause in all personal actions of contract or tort, with no limitation as to defamation. This power was, bythe Judicature Act, 1873, conferred upon the chancery division of the high court, representing the old courts of equity." 574 INJUNCTIONS. [§ 399. it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is un- true, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been in- fringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously' and warily with the granting of interim injunctions."' While there seem to be strong reasons supporting the Eng- lish doctrine, the American courts have uniformly refused to grant the writ to restrain the publication of libels, leaving the victim of such publications to his remedy at law. Whether this is entirely wise is difficult to say. It would seem that where the libel is without question false, and of such a char- acter that great injury to reputation or business would be the result of its publication, the court of equity, because of its strong desire to protect and furnish a remedy where the legal remedy is not sufficient and complete, would take jurisdiction and enjoin such a publication; for how can it be said that the publication of such a libel going broadcast over the country, which cannot be recalled or its injury counteracted, can be adequately, or at all, remedied by damages recovered in an action at law? It is a general rule that equity will not enjoin the threat- ened breach of a contract for the reason that there is a legal remedy for the damages it might occasion; and where a bill was filed for the specific performance of a contract, praying that a writ of injunction might issue enjoining and restraining the defendant from threatened breaches of a contract which had several years to run, the court refused to grant such an injunc- tion, holding that "an injunction in aid of specific perform- ance is merely ancillary. The primary inquiry is, necessarily, whether the contract on which the bill is founded is of the nat- ure and character of which the court is accustomed to decree specific performance. If it is not of this nature and charac- ter, or if for the injury of which complaint is made the law 1 Bonnard v. Ferryman, 3 Ch. Div. L. R. (1891), 369, 384 § 399.] INJUNCTIONS. 575 provides an adequate remedy, the bill fails, and the incidental or consequent remedy by injunction must fail." The court further observes: "The general doctrine is that a court of equity will decree specific performance only when it can dis- pose of the matter in controversy by a decree capable of pres- ent performance. It will not decree a party to perform a con- tinuous duty extending over a series of years, but will leave the aggrieved party to his remedies at law. . . . The de- fendant could not have a decree against the complainant for a specific performance of the contract. The complainant could not be compelled to keep and maintain its machinery and skilled employees to operate it; to pursue its business at a pe- cuniary loss, it may be. There can be no assurance that the complainant will remain of sufficient pecuniary ability to con- tinue its business, to keep and perform its part of the contract. These, and like considerations, have induced the courts, in cases like the present, to abstain from all interference by in- junction or a decree for specific. performance. " ^ "While the rule seems to be general that for the threatened breach of an ordinary contract for the violation of which a party has a complete and adequate remedy at law, the court of equity will not interfere or grant its injunction, the rule can- not be said to apply to cases of contracts which affect the rights of the public at large; as, for example, contracts rela- tive to thei management and control of railroads and other agencies of transportation which have special privileges con- ferred by statute and are held to promote a general welfare. For to such contracts the parties are not the only persons in- terested — the public at large have privileges and rights which must be protected; as in cases of railroads, the railroad com- pany has received at the hands of the public a franchise, and there is an implied contract that the company that obtains it and builds the railroad will operate it to a certain extent for the benefit of the public. And so in the operation and control of all public franchises or public agencies the public are inter- ested. It has been said that " railroads are common carriers and owe duties to the public. The rights of the public in re- 1 Electric Lighting, etc. Co. v. Mo- etc. Co., 17 App. D. C. 356. But see bile, etc. Ry. Co., 109 Ala. 190, 193; Simpson v. Pittsburgh, etc. Co., 38 Dewey Hotel Co. v. United States, Ind. App. 343, 63 N. E. 753. 576 INJUNCTIONS. [§ 399. spect to these great highways of communication should be fos- tered by the courts ; and it is one of the useful functions of a court of equity that its methods of procedure are capable of being made such as to accommodate themselves to the develop- ment of the interests of the public, in the progress of trade and trafBc, by. new methods of intercourse and transportation." ^ This exception rests upon the express ground that this burden to regard and care for the rights of the public at large should be assumed by the court.^ (4) The court of equity will not grant an, injunction if it is likely to inflict greater injury than the grievance complained of, or where the injury complained of is slight or doubtful. If the relief sought is liable to inflict greater injury than the griev- ance complained of, the court of equity will not interfere, nor will the court of equity deal with alleged injuries that are slight or doubtful: or where the latter depends upon a dis- puted question of law; the injunction should not be granted unless the plaintiff's rights seem clear, and if granted will not operate with greater hardship upon the defendant than its disallowance would upon the plaintiff, for if it is prob- able that more wrong will be done than prevented, the court will refuse the writ.' Injunctions are to prevent threat- ened and irreparable injury; to stay consequences that are impending or that are being carried out, and not merely to adjudge and settle rights between the parties. "Courts of equity will not lend their aid by injunction for the enforce- ■ ment of a right or the prevention of a wrong in the abstract, not connected with any injury or damage to the person seek- ing relief, nor when such injury or damage can be fully and amply recovered in an action at law. Nor are courts of equity established to decide or declare abstract questions of right for the future guidance of suitors."* 1 Joy V. St. Louis, 138 U. S. 1, 50; Co. v. New York Dredging Co., 77 Southern Ry. Co. v. Franklin, etc. Fed. 980; Fesler v. Brayton, 145 Ind. Ry. Co., 96 Va. 693, 44 L. R. A. 297. 71, 32 L. R. A. 578, 44 N, E. 37; Jer- 2 Prospect Park, etc. Ca v. Coney sey City Gas Co. v. Consumers' Gas Island, etc. Co., 144 N. Y. 153, 26 L. Co., 40 N. J. Eq. 427; Booraem v. R. A. 610. Railroad Co., 40 N. J. Eq. 557. 3 Knoxville v. Africa, 23 C. C. A. « See Saginaw, etc. Ry. Co. v. Wild- 252, 77 Fed. 501; Bowers Dredging man, 58 Mich. 286, 287. § 399.] INJUNCTIONS. 577 (5) One court loill not enjoin another. Where a writ of in- junction is issued to restrain the prosecution of an action pend- ing in another court, it is not directed to the court, but to the person who prosecutes the cause in the court. The court by its writ of injunction will not undertake to enjoin or restrain another court in its proceedings, but will govern and restrain, the party who is proceeding in the court. As has been said, courts of equity restrain proceedings at law when necessary to the attainment of justice, not by assuming jurisdiction over the court in which the proceedings are pending, but by controlling the parties to such proceedings by injunction.^ (6) Equity will not restrain a suit or proceeding previously l)b- gun in a court of a sister state, or in a federal court, or a suit already pending in another court of co-ordinate jurisdiction. It would be against the comity that exists between states as well as against public policy for a court of equity to undertake to interfere with suits or proceedings that are pending in courts of sister states or in a federal court. A suit that is already pending in a court of co-ordinate jurisdiction should be settled in that court, and a court of equity will under no circumstances interfere in such case. In Mead v. Merritt ^ the chancellor said : " I am not aware that any court of equity in the Union has de- liberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in the courts of another state. Not only comity but public policy forbids the exercise of such a power. If this court should sustain an injunction bill to restrain proceedings previousl}' commenced in a sister state, the court of that state might retaliate upon the complainant who was defendant in the suit there; and, by process of attachment, might compel him to relinquish the suit subsequently com- menced here. By this course of proceeding the courts of dif- ferent states would indirectly be brought into collision with each other in regard to jurisdiction; and the rights of suitors might be lost sight of in a useless struggle for what might be considered the legitimate powers and rights of courts." 1 Burpee v. Smith, Walk. Ch: (Mich.) v. Farmers' & Mechanics' Bank, Harr. 337, 339. Ch. (Mich.) 197. 2 3 Paige Ch. (N. Y.) 403, 404; Carroll 37 578 INJUNCTIONS. [§ 400. § 4:00. Cases In which courts of equity will allow injunc- tions. — The cases in which the court of equity will allow the injunction to issue are numerous and varied, and to name and discuss them all would be an interminable and profitless task ; the most that can be done is to classify them so far as possible and notice the principles that govern the courts in granting the remedy. There is one all-important governing principle that must always appear in order to move the court in its ex- ercise of sound discretion to grant the writ of injunction; the threatened or impending injury must be irreparable and of such a nature that the law courts will afford no adequate rem- edy. The several cases in which the equity court will interpose by exercising either its preventive or mandatory power by in- junction may, with a few exceptions, be arranged and grouped under the following heads or classes: (1) Cases in which a court of equity will restrain proceedings iu another court. (2) Where the court will declare and enforce a trust or a purely equitable right. (3) To restrain a multiplicity of suits. (4) To enjoin the violation of a negative contract. (5) To restrain the breach of a covenant or contract afifecting lands. (6) To restrain the unlawful or inequitable conveyance or incumbrance of property. (7) To restrain a corporation from violating its charter. (8) To prevent waste. (9) To restrain the committing of a nuisance or its continu- ance. (10) To enjoin the infringement of patents, copyrights or trade-marks. (11) To prevent tortious or criminal acts, conspiracies and combinations. (1) Cases in which a court of equity will restrain proceedings in another court. It is a rule of law well settled that one court will not enjoin another court. As we have seen, it will only interfere by enjoining the parties from proceeding with the cause they are prosecuting in the other court.^ The prosecu- 1 Ante, % 399, subd. 5. § 400.] INJUNCTIONS. 5T'.» tion of the cause that the equity court will enjoin may be one pending in a court of law, equity or admiralty. It may be in the state or federal court, but must be of such a nature and under such circumstances as will give to the equity court the power and jurisdiction to enforce its order against the persons who are prosecuting the cause. A court of equity will not en- join criminal proceedings, nor will it interfere with the ap- pointment or removal of public officers, whether the power of removal is vested in the executive or administrative boards of officers or in a judicial tribunal. The jurisdiction to deter- mine the title to a public office belongs entirelj^ to courts of law. '• The office and jurisdiction of a court of equity, unless en- larged by express statute, are limited to the protection of rights of property. It has no jurisdiction over the prosecution, the punishment or the pardon of crimes or misdemeanors, or over the appointment and removal of public officers. To as- sume such a jurisdiction, or to sustain a bill in equity to re- strain or relieve against proceedings for the punishment of offenses, or for the removal of public officers, is to invade the domain of the courts of common law, or of the executive and administrative department of the government. Any jurisdic- tion over criminal matters that the English court of chancery ever had became obsolete long ago, except as incidental to its peculiar jurisdiction for the protection of infants, or under its authority to issue writs of habeas corpus for the discharge of persons unlawfully imprisoned."' 1 In Re Sawyer, 134 U. S. 200, 210, court would break it, and protect Mr. Justice Gray, in delivering the any that would proceed in contempt opinion, took occasion to say that of it." The court further say: "In "from long before the Declaration the courts of the several states, the of Independence it has been settled power of a court of equity to re- in England that a bill to stay crim- strain by injunction the removal inal proceedings is not within the of a municipal officer has been de- jurisdiction of the court of chancery, nied in many well-considered cases. whether those proceedings are by Upon a bill in equity in the court indictment or by summary process." of chancery of the state of New Quoting from Lord Chief Justice York by a lawfully appointed in- Holt the court say: '■ Sure chancery spector of flour, charging that he would not grant an injunction in a has been ousted of his office by one criminal matter under examination unlawfully appointed in his stead in this court; and if they did, this by the governor, and that the new 580 INJUNCTIONS. [§ 400. The general rule governing the jurisdiction of the courts in respect to proceedings in a court of concurrent jurisdiction over the same subject-matter is, that whichever court has first obtained jurisdiction of the cause has a right to proceed with it, and its proceedings will not be prohibited or restrained by another court. This rule obtains as well in the federal courts as in the state courts. And the federal statute which provides that " the writ of injunction shall not be granted by. any court of the United States to stay proceedings in any court of a state except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy'" is but a legislative affirmation of the well settled rule in equity. In Hemsley v. Myers'' it was said: "This section, save the appointee was insolvent, and pray- ing for an injunction, a receiver and an account of fees until the plaint- iff's title to the office could be tried at law. Vice- Chancellor MoCoun said: 'This court may not have ju- risdiction to determine that ques- tion, HO as to render a judgment or decree of ouster of the office; ' but he overruled a demurrer upon the ground that the bill showed a prima facie title in the plaintiff. Tappan v. Gray, 3 Edw. Ch. 450. On appeal Chancellor Walworth reversed the decree ' upon the ground that at the time of the filing of this bill the court of chancery had no jurisdic- tion or power to afford him any re- lief.' 9 Paige, 507. 509, 512. And the chancellor's decree was unani- mously affirmed by the court of er- rors upon Chief Justice Nelson's statement that he concurred with the chancellor respecting the juris- diction of courts of equity in cases of this kind. 7 Hill, 859. The su- preme court of Pennsylvania has decided that an injunction cannot be granted to restrain a municipal officer from exercising an office which he has vacated by accepting another office, or from entering upon an office under an appointment by a town council, alleged to be illegal; but that the only remedy in either case is at law by quo warranto. Hagner v. Heyberger, 7 Watts & Serg. 104; Updegraff v. Grans, 47 Pa, St. 103. The supreme court of Iowa, in a careful opinion delivered by Judge Dillon, has adjudged that the right to a municipal office cannot be determined in equity upon an orig- inal bill for an injunction. Cochran V. McCleary, 22 Iowa, 75. In Dele- hanty v. Warner, 75 111. 185, it was decided that a court of chancery had no jurisdiction to entertain a bill for an injunction to restrain the mayor and aldermen of a city from unlawfully removing the plaintiff from the office of superintendent of streets and appointing a successor; but that the remedy was at law by quo warranto or mandamus. In Sheridan v. Colvin, 78 III. 337, it was held that a court of chancery had no jurisdiction to restrain by injunc- tion a city council from passing an ordinance unlawfully abolishing the office of commissioner of police." 1 U. S. Rev. Stat., sec. 730. 2 45 Fed. 389. In Bell v. Ohio Life, etc. Co., 1 Biss. (U. S.) 360, it was held that in a case where the United States court had taken jurisdiction § 400.J INJUNCTIONS. 581 exception, is as old as the judicial system of the United States. Its prohibition is absolute and unqualified, except where the injunction is authorized by law in proceedings in bankruptcy. This exception serves to emphasize the prohibition as to all other cases." The court first obtaining jurisdiction has the right to deter- mine every question which may arise in the cause, and that determination will be considered binding in every other court until it is reversed, and the proceedings of the court cannot be enjoined or arrested or taicen away by any proceedings in any other court. And so it has been held that " when a state court and a court of the United States may take jurisdiction of a matter, the tribunal where jurisdiction first attaches holds it to the exclusion of the other until its duty is fully performed, and the jurisdiction involved is exhausted; and this rule ap- plies alike in both civil and criminal cases." ^ This rule also applies to cases where the court seeks to en- join proceedings in another state or country. Formerly it was and issued an injunction, a state court had no authority to take ac- tion or make orders in i-egard to the subject - matter over which such jurisdiction has been exercised; nor had its officers any right to the pos- session, or control of the subject- matter. Riggs V. Johnson Co., 6 Wall. . out delay, for if there has been any delay or acquiescence on the part of the plaintiff the court may refuse the injunction on an ex jjarte application. As a general rule courts are averse to- granting injunctions without notice to the opposite party. And they will only grant the writ ex parte to prevent impending ir- reparable injury that is so imminent as to demand immediate protection at the hands of the court, and when to postpone it a sufficient length of time to give the defendant notice might defeat the object of the bill. It has been said, " where the nat- ure of the act to be restrained is such that an immediate stoppage of it is absolutelj'^ necessary, to protect property from destruc- tion, or where the mere act of giving notice to the defendant, of the intention to make the application, might be, of itself, produc- tive of the mischief apprehended, by inducing him to acceler- ate the act, in order that it might be complete before the time for making the application should have arrived, the court will award the injunction without notice, or even before service of the copy of the bill.'" Ordinarily the practice is to present a verified bill of com- plaint and the affidavits of persons attached thereto who know the facts alleged in the bill upon information and belief therein as- well as other facts relied upon, to the judge of the court at his chambers, or wherever he may hear the application, and appljr to him for the writ; for this application need not be presented to the court, but it may be allowed by the judge of the court. If the exigencies of the case are such, in the opinion of the judge to whom application is made, as to demand an immedi- ate issuance of the injunction, he will indorse upon the bill an order to the register or clerk of the court in substance as fol- lows: "On filing the within bill of complaint let an injunc- tion issue as therein prayed." But a strong case must be set forth in the bill and the proofs must be clear and certain to induce the judge or the court to make such an order.^ It has been held, and is no doubt the universal rule, that an injunc- tion will not be granted without notice to the opposite party, unless it appears by sworn statement, either in the bill of com- plaint or by affidavits accompanying it, that the rights of the 1 2 Danl. Ch. PI. & Pr. (4th ed.) 1664; Wing v. Fairhaven, 8 Cush. (Mass.) 363, 364; Jones v. Magill, 1 Bland (Md.), 177. 2 New Music Hall Co. v. Orpheon Music Hall Co., 100 111. App. 378. § "too.] INJUNCTIONS. 609 complainant will be unduly prejudiced if notice is given before the writ issues. The only reason for granting an ex parte injunction is to avoid damage or irreparable injury that might be occasioned or precipitated by the giving of notice that an application for the writ is made.^ So a pi'eliminary injunction will not be granted when th.e effect of it would be to change the possession of the property in question, as this would give an undue and inequitable advantage to the plaintiif, the object in granting the writ being to preserve the present status until the final hearing, and the court will go no farther than this.^ Where the afBdavit of the complainant merely stated that his rights would be unduly prejudiced if an injunc- tion was not issued immediately without notice, and there was no showing of facts, either in the bill of complaint or by affi- davits, to sustain such conclusion, it was held that an injunc- tion should not issue.' While a mandatory injunction will not usually be granted ex parte, it has been held that such a writ will issue ex parte where the exigencies of the case are very great.* (2) By obtaining an order on the defendant to show cause why an injunction should not issue. If it appears to the court, or the judge to whom the application is made for an injunc- tion, that the case is not one where the exigencies are so great as to warrant the issuing of the writ ex parte, or where the solicitor applies for an order to show cause, such an order will be granted after the bill is filed and the case is pending. The order is directed to the defendant and usually designates the time of service and the time and place of hearing. This order 1 Suburban, etc. Co. v. Naugle, 70 90Md. 278, 44 Atl. 1024, citing several 111. App. 384. Maryland cases. But where the bill - Bettman v. Harness, 42 W. Va. of complaint seeks to put tlie oom- 433, 36 L. R. A. 566. plainant in possession of certain 3 General Gas Co. v. Stuart, 69 111. premises by enjoining defendant, or App. 560. in any way preventing him from ^Newlberia, etc. Co. V. Romero, 105 entering and quietly enjoying the La. 439. The Maryland court has same, and an afiHdavit accompanies held that a restraining order granted the bill, alleging that the rights of at the time of filing of the bill and the complainant will be prejudiced before an answer should never go if the injunction is not issued im- iarther than to suspend defendant's mediately, it was held insufficient to action until an opportunity is af- justify an injunction without notice, forded him to answer and defend. Leiter v. Baude, 99 111. App. 64. See L. A. Thompson, etc. Co. v. Young, ante, § 401, subd. (1). 39 610 INJUNCTIONS. [§ 403. must be served upon the defendant, who may appear in com- pliance with it and interpose his objections and present counter- affidavits and proofs for the consideration of the court, which, if merely in answer to the bill, or affidavits attached or filed with it, need not be served upon the applicant to entitle them to be presented and considered by the court. And the plaint- iff cannot in such case present further affidavits to dispute or contradict them, but if the affidavits introduced by the defend- ant contain new matter, the plaintiff will be permitted to meet the new matter by counter-proofs. And usually where the hearing is upon an order to show cause, the defendant presents and files his answer to the bill of complaint, and if he can do so fully meets-all the equities in the bill, denying them upon his own knowledge, if he can, and presenting affidavits as to matters answered upon information and belief and other matters alleged in the bill. Formerly upon such an answer the court would refuse to grant the writ of injunction applied for, but that cannot be said to be the rule at the present time; for it is generally held that the answer denying the allega- tions of the bill of complaint is like an affidavit of the defend- ant, its effect being subject to the consideration which the court may give it. And it is a rule that such denials only apply when the right to do the act restrained is in issue.' But usually a preliminary injunction will not be granted upon a bill and answer, or upon a bill, answer and affidavits, where all the equities of the bill are denied in the answer and affidavits.^ Formerly in the United States courts preliminary injunctions were granted only upon notice; this was required by statute.' But the provision of the judiciary act requiring notice in such cases has been repealed, so that the court may grant a restrain- ing order, without notice, to remain in force until the decision of the court upon the application for an injunction.* iHerzog v. Fitzgerald, 77 N. Y. S. Large, ch. 23, sec. 5; Mowrey v. In- 366; Milwaukee, etc. Co. v. Bradley, dianapolis, etc. Co., 4 Biss. (U. S.) 78. 108 Wis. 467, 84 N. W. 870; Quayle V. ^Sec. 718, Eev. Stat. U. 8. 1874. Bayfield Co., 114 Wis. 108, 89 N. W. "Whenever notice is given of a 892; Warren R. Co. v. Clarion Co., 54 motion for an injunction out of a cir- Pa. St. 28. cult or district court, the court or 2 Citizens' Coach Co. v. Camden, judge thereof may, if there appears etc. Co., 29 N. J. Eq. 299. to be danger of irreparable injury 3 Judiciary Act, 1793; U. 8. Stat, at from delay, grant an order restrain- § 403.] INJUNCTIONS. 611 (3) Bxj an application hy petition servea upon the defendant. The third method of proceeding is by making, filing and serving a petition setting forth clearly and with reasonable certainty the ground upon which the injunction is sought and the proofs upon which the applicant depends; if upon affidavits, they should be attached to the petition, which petition should be verified by the applicant or some person duly authorized to do so in his behalf; to this petition should be affixed a notice to the defendant stating the time and place and before whom the petition is to be heard. A copy of this application, with the affidavits attached and with the notice of hearing, must be served on the defendant or his solicitor within the time required by the rules of practice, and proof of service should be made to the court, if required, at the hearing. The defendant may appear and oppose the application and may present counter affidavits without serving them upon the plaintiff, if they are in answer to the proofs of the plaintiff or the allegations in the bill of complaint, and the plaintiff will not be allowed to reply to these unless the defendant by his affidavits presents new matter, in which case the plaintiff may present and file counter affidavits. At the hearing of this application, the bet- ter practice is for the defendant to present and file his answer to the allegations of the bill, and if all the equities of the bill are met and denied, it will be considered by the court and given such weight as the court may deem it worthy. In some jurisdictions it has been held that such an answer would be sufficient to defeat the application, but the more satisfactory rule seems to be that the answer will stand as an affidavit of the defendant.' ing the act sought to be enjoined regarded merely as an affidavit of until the decision upon the motion; the defendant; and affidavits may and such order may be granted with be received and read in opposition or without security, in the discretion thereto." 2 Danl. Ch. Pi. & Pr. (4th of the court or judge." ed.) 1668, citing Poor v. Carleton, 8 1 " Formerly the answer was taken Sumn. (TJ. S.) 83, in which Mr. Jus- to be true: and affidavits, except tice Story uses the following ian- under special circumstances, could guage: "The practice in America not be read against it; but now, in has, I believe, become more liberal applications for an injunction, or to than it is in England; and if it were dissolve an injunction, the defend- necessary I should not hesitate to ant's answer is, for the purpose of admit affidavits to contradict the evidence on such application, to be answer for the purpose of continu- 612 INJUNCTIONS. [§ 404. § 404. The order^ writ, or interlocutory decree.— If the writ is granted upon an ex -parte application, the order is usually quite informal — merely a direction to the register or clerk to issue the writ on filing the bill of complaint. If the application is for an order to show cause why an injunction should not be granted, the order generally recites the fact that the court has read, or heard read, the bill of complaint and the affidavits attached thereto in support of it, and after con- sidering the same it is ordered that the defendant show cause at a certain time and place why an injunction should not issue, and contains a further order that within a certain time a copy of the order to show cause be served upon the defendant, which operates as a notice of hearing. Upon the hearing of the ap- plication, whether it be by an order to show cause, or by pe- tition supported by the bill of complaint and affidavits, the court, if the application be granted, makes an order usually re- citing the form and the substance of the facts of the applica- tion, and strictly commanding and enjoining the defendant, his agents and attorneys, and each of them, that they forth- with and until the further order of the court desist from doing or performing the particular acts or things that are asked to be enjoined in the bill of complaint, specifying with particu- larity in the order what they are. This order should be suffi- ciently definite so that there can be no misunderstanding as to what is the scope and meaning of the injunction, and that the writ that issues may follow the order, and when served upon the defendant will sufficiently apprise him of that which he is restrained from doing. Upon obtaining the order for an injunction, the party ob- taining it is entitled to have a writ issued at once from the office of the register in chancery or the clerk of the court. If the party delays and is guilty of laches in obtaining the writ granted by the order, it may lose its force by lapse of time; and where six weeks elapsed after an order granting the writ, before the writ was tested and issued, the court refused to pun- ish the defendant for a violation of it, holding that after the lapse of so much time there should have been an order applied for for leave to use the writ.^ An order for a permanent in- ing or even of granting a special in- arise." Eobrecht v. Eobrecht, 46 W. junction where I perceive that with- Va. 738, 34 S. E. 801. out it irreparable mischief would i 2 Danl. Ch. PI. & Pr. (4th ed.) § 405.] INJUNCTIONS. 613 junction can only be made at the final hearing, for it is a part of the final decree; in it the interlocutory injunction will be made permanent; or if the court should find that the final or permanent injunction should diflPer from the interlocutory in- junction then in force, the decree should particularly state that which the defendant is permanently enjoined from performing or doing. § 405. Injunction bond. — The requiring of a bond upon the issuing of an injunction is regulated more or less by statutes in the several states. Where -the statute requires a bond to be given upon the issuing of the writ, the court has no discretion in the matter, but is bound to require the bond to be executed and delivered as required by the statute and in accordance with its provisions.^ But in cases where the statute does not require a bond, the court has large discretionary powers in the matter of requiring a bond before the issuance of the writ. The writ, as has often been said, is a harsh remedy, often making violent changes in the business affairs and prospects of the de- fendant, and if the case is at all doubtful the court ought to require the plaintiff to enter into an undertaking that would secure compensation to the defendant for any damage that he might wrongfully suffer because of the issuance of the writ.^ But where the plaintiff's right is clear and the defendant's in- fraction of that right is established, the court will not, unless required by statute, require a bond of the plaintiff to protect the defendant against damages that might be incurred by reason of the injunction.^ But usually where the writ prayed for is to restrain the collection of a judgment, a bond will be required; the amount of the bond resting in the discretion of the court.^ In the exercise of this discretion the court may 1673; McCormick v. Jerome, 3 183; Staffords v. Kiog, 33 C. C. A. 536, Blatchf. 486; Bateman v. Wiatt, 11 90 Fed. 136. Beav. 587. * Greenberg v. Holmes, 100 111. App. 1 Roberts v. Pipkin, 63 S. C. 253, 41 186. And it was held that where an 8. E. 300; Molntyre v. Marlboro order required a bond to be given in Wholesale Grocery Co., 63 S. C. favor of each of the defendants, a 253. bond given in favor of the defend- 2 Marquis of Downahire v. Lady ants jointly is not a compliance with Sandys, 6 Ves. Jr. 107; Lowenfeld v. the order. Speyrer v. Miller, 108 La. Curtis, 73 Fed. 105. 204, 33 So. 534; N. Y. Bank Note Co, 3 Dodd V. Flavell, 3 C. E. Green (N. v. Kerr, 77 111. App. 53; Hyatt v. City J.), 255; Potter v. Potter, 69 N. Y. S. of Washington, 20 Ind. App. 148; Smith V. Smith, 51 S. C. 379. G14 INJUNCTIONS. [§ 400. impos3 terms upon the plaintiff as a condition to be performed be/ore granting the order for the writ, and that condition may be the giving of a bond to the defendant; for it has been said to be "a settled rule of the court of chancery, in acting on applications for injunctions, to regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may re- sult in material injury to either party; for the damage arising from the act of the court itself is damnum absque injuria, for which there is no redress except a decree' for the costs of the suit, or, in a proper case, an action for malicious prosecution. To remedy this difficulty, the court, in the exercise of its dis- cretion, frequently resorts to the expedient of imposing terms and conditions upon the party at whose instance it proposes to act. The power to impose such conditions is founded upon, and arises from, the discretion which the court has in such cases to grant or not to grant the injunction applied for. It is a power inherent in the court as a court of equity, and has been exercised from time immemorial."' § 406. Dissolution or modification of the injunction. — The procedure for the dissolution of an interlocutory injunc- tion is by petition, founded upon affidavits usually accompa- nied by the sworn answer of the defendant to the bill of com- plaint, if the injunction was allowed ex parte and before the coming in of the answer. The petition with the affidavits at- tached must be served upon the complainant or his solicitor, with notice of the time and place of hearing. Formerly it was held that the plaintifif could not set up new matter in defense of such a petition, but the rule now seems to be that the plaintiff may present further affidavits if they are within the scope of the case made by the bill.^ Upon the hearing of the petition the court may continue the injunction, modify it or dissolve it, as in its discretion seems equitable and just; or, if there appears to be doubt, he may continue the injunction and require a bond, if one has not already been executed for the 1 Russell V. Farley, 105 U. S. 433, 2 Armstead v. Smith, 115 Ga. 428, 438; Kerr on Injunctions, 209, 210, 41 S. E. 583; Armstrong v. Sweeney 212. (Neb., 1902), 91 N. W. 570. § 406.J INJUNCTIONS. 615 protection of the defendant; or, if a bond has been ordered and executed and it appears that it is not suiiicient, a further bond nfiay be required. A motion to dissolve may be made at any time before decree, even before process is served upon the defendant and before he has appeared in the cause. And where the injunction has been allowed against several defendants an}^ one or more of them may move to dissolve it, but in such case it has been held that all of the parties to the suit, plaintiffs and defendants, should be served with notice of the motion.' Where the bill on which the injunction was granted is found to be insufficient upon demurrer, the injunction should be dissolved.^ And it is gen- erally held that an appellate court, to preserve the subject of the appeal so that it can render an efficacious decree, may continue an injunction, or modify it, as seems meet and just.'' Where an injunction was granted to restrain a trustee from selling land under a deed of trust on the ground of usury in the debts secured, and it appeared that there was no usury in the debt, it was held the injunction should be dissolved.'' And where a bond is required by statute before the granting of a writ, an order for an injunction is not considered effectual until the bond is executed; ' but the court will not dissolve an 1 Kerr on Injunctions, 560; Danl. that the defendant could not be en- Ch. PI. & Pr. (5th ed.) 1675; Shields joined from withdrawing his own V. McClung, 6 W. Va. 79; Thompson money from banks in which he had V. Geary, 5 Beav. 131. deposited it. Gusdorflf v. Schleis- 'zFolsom V. Ballard, 16 C. C. A. 593, ner, 85 Md. 860, 37 Atl. 170; Spillerv. 70 Fed. 12. Spiller, 3 Swanst. 557, where Lord 3 Pennsylvania Ry. Co. v. National, Eldon, in delivering the opinion of etc. Co., 54 N. J. Eq. 647, 35 Atl. 433. the court, said: "I wish it to be un- ^ Watterson v. Miller, 43 W. Va. derstood as my opinion, that, in gen- 108, 24 S. E. 578. And where there eral, on a bill for the specific per- was uncertainty in the order and formance of an agreement to sell, the writ, it was held that an injunc- the plaintiff is not entitled to re- tion should be dissolved. Crescent strain the owner from dealing with Mining Co. v. Silver King, 14 Utah, his property. A different doctrine 57, 45 Pac. 1098. And where suit would operate to control the rights was brought by one partner to com- of the ownership, although the agree- pel the other to specifically perform ment was such as could not be per- the partnership articles by making formed." Supreme Ct. of I. O. v. payments according to the cov- Supreme Gt. of U. O. Foresters, 94 enants therein and to have the Wis. 234. partnership dissolved and its affairs 5 Pell v. Lander, 8 B. Mon. (Ky.) wound up by a receiver, it was said 554. 616 INJUNCTIONS. [§ 406. injunction merely upon the ground of the insufficiency of the bond, but will usually grant a reasonable time within which to file anew bond, continuing the injunction in force in the meantime.' The rule is somewhat general that an ex parte injunction will be dissolved upon the filing of a sworn answer which fully and unequivocally denies all the material allegations in the bill. The denials must, however, be of a positive character. But this rule is sometimes relaxed where from the nature of the case the defendant cannot know and therefore cannot deny the allegations upon personal knowledge; in such case to warrant a dissolution of the injunction there should be filed with the answer afiidavits of persons who can positively deny the facts thus alleged upon information and belief. However, this rule cannot be said to obtain in all cases, at least the authorities are not harmonious; for it is held in some jurisdictions, and it seems to be the better rule, if not having the weight of authority, that the court will give to the answer the same weight that is given to other proofs adduced at the time of the hearing. There can be no good reason why the answer of a defendant should prevail against a sworn bill supported by proofs and affidavits of persons who swear positively to the facts alleged. It would seem in such cases that the court may weigh the evi- dence adduced and render a decree in conformity with the proofs as they appear to the court. Especially is this true in cases where, after considering the bill and the affidavits sub- mitted, there is still a strong presumption that the case made by the bill will be established and that irrevocable injury might result if the injunction were dissolved; or where the relief prayed for is based upon alleged fraud, and the court, after considering the bill and answer, is not satisfied that equity demands a dissolution of the writ; or where it is clearly shown that the complainant would lose all benefit which would accrue to him should he finally succeed in the cause; or where the court is not satisfied with the answer of the defendant and there still remain questions of doubt on which further proof is required in order to decide the rights of the parties. And generally it may be said that if it appears to the court that, 1 Chesapeake, etc. Ey. Co. v. Patten, 5 W. Va. 234; Beauchatnp v. Super- visors, 45 111. 274; Crawford v. Paine, 19 Iowa, 172. § 406.] INJUNCTIONS. 617 admitting defendant's answer to be true, irreparable injury might be the result of a dissolution of the injunction, if the rights of the defendant are not prejudiced or imperiled by con- tinuing the injunction, the motion to dissolve will not be al- lowed.i It has been said, however, that an injunction will be 1 New V. Bame, 10 Paige Ch. (N. Y.) 502. In Attoruey-General v. Oakland County Bank, -Walk. Ch. (Mich.) 90, 92. the chancellor said: " The general rule is to dissolve an injunction when the equity of the bill is met, and fully and clearly denied by the an- swer. The answer, however, must be positive, and notupon information and belief, and must be full and satis- factory to the court; otherwise the injunction will not be dissolved, but will be retained until the final hear- ing of the cause. The granting and continuing of injunctions rest in the discretion of the court, and there are exceptions to the general rule above stated. If there would be very great danger of the complainant's losing all the benefits of his suit, by a dis- solution of the injunction, should he finally succeed, the court will not as a matter of course dissolve it on the coming in of the answer denying the equity of the bill. Nor will an in- junction be dissolved on the answer of the defendant, where the answer admits the equity of the bill, and sets up new matter as a defense." In Re De Godey v. Godey, 39 Cal. 157, 166, the court say: " We do not think that it can be maintained that the general rule, that when an answer denies fully the equities of the bill the injunction should be dissolved, is one of universal application, or without exception, or that the dis- solution of the injunction must follow the filing of even such an answer by mere legal conclusion. In Poor v. Carleton, 3 Sumner, 75, Mr. Justice Story, after a review of the authori- ties on this point, declares that he should have been sorry to find that any such practice had been estab- lished as that an injunction should, at all events, be dissolved upon a mere denial by the answer of the whole merits of the bill. That there are many cases in which such a prac- tice would be most mischievous — nay, might be the cause of irrepa- rable mischief. He says that the question of dissolution, after the coming in of the answer, is one ad- dressed to the sound discretion of the court, and adds that, if the au- thorities, properly considered, should seem to establish a contrary doc- trine, he would hesitate to follow them in a mere matter of practice subversive of the very ends of jus- tice." McCreery v. Brown, 43 Cal. 457; Robrecht v. Robrecht, 46 W. Va. 738, 84 S. E. 801; McEldowney v. Lowther, 49 W. Va, 348, 38 S. E. 644. In Wenzel v. Milbury, 93 Md. 427, 49 Atl. 618, the court ordered that the answer should be taken as true and the injunction dissolved. Queen City Stock & Grain Co. v. Cunningham, 128 Ala. 645, 29 So. 583. And where exceptions were filed to an answer and the exceptions were not well taken, held that the injunction should be dissolved. Sandusky v. Paris, 49 W. Va. 150, 38 S. E. 563. But where the continuance of a tem- porary injunction is reasonably nec- essary for the protection of the rights of the parties, or either of them, dur- ing the pendency of the litigation, it will not be dissolved on a verified answer denying the equities in the bill. Milwaukee, etc. Co. v. Bradley, 108 Wis. 467, 84 N. W. 870. And where a temporary injunction was allowed on the filing of the bill, and 618 INJUNCTIONS. [§ 4:06.- dissolved. if plaintiff is guilty of gross and inexcusable delay in bringing the cause to a hearing, or if to continue the injunction- no useful purpose would be subserved.' Where an injunction- is clearly'- an abuse of discretion, in an urgent case it has been- held that it may be dissolved by mandamus. As, " where a preliminary injunction operates in such a way as to do violence to vested rights and interests, and to prevent the proper au- thorities from exercising their legal functions, it is such an in- vasion of right as entitles the aggrieved parties to a prompt redress, which . . . is better for the public peace and order than encouraging an open disregard for the legal tribunals, where it can be avoided. While the action of an inferior court,, within its discretion, is to be reached by other appellate process, yet, when the action complained of is beyond any proper dis- cretionary power, or is an abuse of discretion which cannot be justified on legal principles, this court may and will interfere by mandamus, if there is urgency or pressing occasion to do so." ^ on motion to dissolve the case was not be granted, because the answer fully heard on bill, answer and tes- simply denied the existence of the timony, and it appeared that the agreement and was not responsive plaintiff was not entitled to an in- to complainant's claim, junction and could obtain relief at ^In re Schwarz, 14 Fed. 787; Read law, the defendant was held to be v. Consequa, 4 Wash. (U. S. C. C.) 174;- entitled not only to an order dissolv- In re Jackson, 9 Fed. 493; In re Pitts, ing an injunction, but also a decree 9 Fed. 542. dismissing the bill. Gulick v. Fisher, 2 Detroit v. Circuit Judge, 79 Mich. 92 Md. 353. In Ireland v. Kelly, 60 384, 386; Port Huron, etc. Ry. Co. v. N. J. Eq. 308, 312, 47 Atl. 51, it was Circuit Judge, 31 Mich. 456; Tawas,. held that a motion to dissolve the etc. Ry. Co. v. Circuit Judge, 44 Mich, preliminary injunction restraining 479; Maclean v. Circuit Judge, 52" a suit at law on the ground that the Mich. 257; Barnum, etc. v. Speed, 59' answer denied every fact on which Mich. 373. complainant's equity depends will CHAPTEK XXI. REMEDIES ESTABLISHING PRIMARY RIGHTS. § 407. The remedies to be discussed. 1 Actions for Assignment op Dower. 408. History and development of the action. 409. The procedure. II. Partition. 410. The jurisdiction. 411. The subject-matter of the pro- cedure — The property. 413. Who may enforce partition. 413. The bill of complaint. 414. Defenses in partition. 415. Default of defendant and pro- cedure. 416. The hearing and decree or order. IIL Reforming a Contract, Deed, or Written Obligation. § 417. When equity will take juris- diction. 418. The mistake upon which the remedy may be based. 419. The procedure — The bill of complaint. 420. Defenses. 431. Proofs. IV. Rescission, Cancellation, Sur- render OR Discharge of In- struments. 433. The equitable jurisdiction. 433. Some cases in which the rem- edies are applicable. 434. The procedure. 435. To i-emove cloud from title — Nature of remedy. 426. Adequate remedy at law. 437. Possession by plaintiff. 428. The pleadings. § 407, The remedies to be discussed. — The third class of remedies embrace those which seek to establish the primary rights, interests and estates, legal or equitable, of the plaintiff; rights and interests which really exist, but have not been de- clared or established by a decree of the court; as, for example, actions for the assignment of dower, where the right of dower exists, but has never been declared or assigned ; actions for parti- tion of property, the title of the property being in several persons but not divided, and the separate titles of the individuals jointly interested not having been determined; actions for reforming a contract, deed or written obligation, or for canceling or dis- charging an instrument. It will be noticed that the actions classified under this head are those where the real right or ■620 EEMEDIES ESTABLISHING PEIMAKY EIGHTS. [§ 408. interest of the partj"- exists, but it is important to the parties that their rights should be, by a decree of the court, set apart and determined. Some of the more important remedies of this class will be mentioned. I. Actions foe Assignment op Dowee. §408. History and development of the action. — The dower interest of a widow in the estate of her deceased hus- band is a legal right and would seem to belong to the juris- diction of the law court. Formerly, and until the reign of Elizabeth in England, it was assigned and set over to the widow by a legal procedure instituted for the particular pur- pose of obtaining dower. It was commenced by issuing the writ of dower, and the cause was determined in the law court. And where the right of dower had been determined and the particular estate to which the widow was entitled had been set off by metes and bounds, the action of ejectment was avail- able; but because of complications and impediments often arising, the aid of the equity court was frequently invoked. And the jurisdiction of the equity court always embraced ac- tions for assignment of dower where it was necessary to assist the widow in obtaining her rights and interests in the estate by way of discovery; as of title deeds, where the registration laws were not sufficient, or the title was not recorded; or for removing impediments to the rendering of her legal title avail- able at law. The proceedings, however, for the assignment of the widow's dower have generally throughout the states of the Union been given by statute to those courts having juris- diction over the settlement of estates of deceased persons, and in such states the court of equity will not assume jurisdiction except when discovery is sought, or where there is some im- pediment to be removed in order to set apart and assign the dower of the widow. And so it may be said that the jurisdic- tion of the equity court is a concurrent jurisdiction with the courts of law. The equity court, as a general rule, will not take general jurisdiction in actions for the assignment of dower where there appear to be no obstacles to the legal remedy, for to do this would be to violate that general rule which obtains in equity pleading: that where there is a com- § 408.] REMEDIES ESTABLISHING PEIMAET EIGHTS. ('i'21 plete and adequate remedy at law a court of equity will not entertain an action. Upon this question there has been con- siderable discussion and diversity of opinion; but it would seem that the rules which govern the jurisdiction in equity cases necessarily must limit the jurisdiction in cases of dower to that class of cases where the equitable jurisdiction must necessarily be invoked because there is no complete and ade- quate remedy at law; that is to say, the equity jurisdiction will be confined to cases where there are obstacles in the way of the legal remedy ; as where discovery must be made, or where there are other legal impediments which do or may pre- vent an adequate remedy at law.^ In Herbert v. Wre^i'^ Chief Justice Marshall, in rendering the opinion of the court, said : " According to the practice which prevails generally in England, courts of equity and courts of law exercise a concurrent jurisdiction in assigning dower. Many reasons exist in England in favor of this jurisdiction; one of which is, that partitions are made and accounts are taken in chancery in a manner highly favorable to the great purposes of justice." In an early New York case it was said, in discussing the jurisdiction of the equity court, that " it was a question of doubt for some time how far a court of equity would take ju- risdiction of a case for the assignment of dower. The juris- diction of the court of chancery in England had long been sustained where there was any dfiBculty in the way of the widow's proceeding at law, as an outstanding term, the want of information as to the title, or the want of means to estab- lish the title of the husband in a court of law, in consequence of the possession of the deeds by the heirs. And finally it was decided that a demurrer to a bill for dower could not be sus- 1 In Wright v. Wright, 79 Mich. 527, frauded or improperly persuaded the widow sought to have her dower into such an arrangement by any assigned to her for the reason that fraud or device of her husband, she during the life-time of her husband is entitled to full and adequate re- he had induced her, for a very inade- dress; and, if difficulties are raised quale consideration and by fraudu- in securing it, he or his estate — in- lent device, to relinquish her right asniuch as his heirs or devisees oan- of dower. The court in that case not be regarded as bona fide pur- held " that no court can sustain such chasers — must bear the risk." an arrangement unless it is a fair -1 Cranch (U. S.), 370; Powell v. and voluntary one. If a wife is de- Monson, etc. Co., 3 Mason (U. S.), 347. 622 REMEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 408. tained, although the bill did not contain any allegation that there was an impediment to the complainant's remedy in an action at law. It may therefore be considered as settled in England that the court of chancery has concurrent jurisdic- tion with courts of law in suits for the assignment of dower." '■ In New Jersey it was held that as to both dower and parti- tion the courts of law and equity have concurrent jurisdic- tion.^ And later it was said that "dower, when founded on a legal seizin, is a pure legal right; and while courts of equity possess concurrent jurisdiction with courts of law for its en- forcement, yet, in cases where no equitable principle is in- volved, they uniformly treat the widow's dower as a strictly legal right, and, in dealing with it, govern themselves by the same principles which control courts of law." ' This seems to be the doctrine in the several states of the Union.* Formerly, and according to the English law, dower was not allowed in equitable estates, but the general doctrine of this country and of England has been changed by statute so that now the right of dower is generally recognized in all classes of equitable as well as legal estates. And where the dower is sought to be assigned in an equitable estate, the court of equity must necessarily have jurisdiction of the cause.' 1 Badgley v. Bruce, i Paige (N. Y.), dower assigned for the benefit of 98, 99; Mundy v. Muady, 3 Ves. Jr. creditors. Seaman v. Seaman, 129 133. N. C. 293, 40 S. E. 41. In Rice v. 2Hartshorne v. Hartshorne, 3N. J. Waddill, 168 Mo. 99, 67 S. W. 605, a Eq. 349. bill was filed by the surviving wife ^ Ocean Beach Ass'n v. Brinley, 34 for the accounting of moneys alleged . N. J. Eq. 438; Hinchman v. Stiles, 9 to have been given by the husband N. J. Eq. 361. to his children for the alleged fraud- ■• Brown v. Bronson, 35 Mich. 415; ulent purpose of defeating the wife's Blair v. Thompson, 11 Grat. (Va.) dower rights, and for the purpose of 441; Danforth v. Smith, 33 Vt. 347; setting aside, as fraudulent, a con- Thomas V. Thomas, 73 Iowa, 657; veyance of real estate secretly made Wall & Burnsides v. Hill, 7 Dana, by the husband to his children on 173; Boltz V. Stolz, 41 Ohio St. o40; the eve of his marriage. It was held Strong V. Clem, 12 Ind. 37. In Ten- that such a bill stated a cause for brook V. Jessup, 60 N. J. Eq. 334, 46 equitable relief. Atl. 526, it was held that the plaint- ^ in Smiley v. Wright, 3 Ohio, 506, ifif might file a bill in chancery to 508, the court said: "It is a peculiar determine the widow's dower for feature of the law of Ohio that the the purpose of satisfying an execu- widow of a deceased person is not tion. and that in such case the court only entitled to dower in the legal would appoint a receiver to have estate of which the husband was :§§ 409, 410.] EEMEDIES ESTABLISHING PEIMAEY EIGHTS. 623 §409. The procedure.— The equitable jurisdiction, as we fhave seen, is generally invoked when there is discovery to be made or impediments to be removed, and so the bill that is filed is a bill for other relief than the mere assignment of dower; the assignment of dower being ancillary to the real case made. There is, therefore, no course of procedure that especially differs from the usual course in equity cases. The bill is filed alleging such facts as make out a case which entitles the complainant to the relief prayed for, namely, to a decree •removing all impediments and assigning the dower interest to the widow. And so it follows that the defenses to the pro- cedure are the same as defenses to the ordinary bill in equity ; they are by demurrer, plea or answer, as the case demands. II. Paetition. § 410. The jurisdiction. — Partition is the dividing and as- signing to the several owners thereof their respective shares in property. It has been said that the proceeding by partition in ;most, if not in all, of its aspects is an adversary proceeding iu which a remedial right to the transfer of property is asserted, -and by its decree determines and declares a new title to the property transferred by giving a distinct and separate right to ■the several parties to whom the decree distributes the property.' Formerly, the jurisdiction to partition property was exclu- sively in the law court, the proceeding being instituted by a writ of partition, but latterly that proceeding has been aban- doned and partition is largely controlled by statutes and the equity courts in the several states. In an early English case it was held that the statutes author- izing partition are often ineffectual and the jurisdiction of equity must be invoked to do justice between the parties.^ And seized, during coverture, but also in Reedetal. v. Whitney, 7 Gray (Mass.), any equitable estate which he may 533; Hawley v. James, 5 Paige (N. hold in lands at the time of his death. Y.), 318; Dubs v. Dubs, 31 Pa. St. 151; It is in virtue of the statutory pro- Clapp v. Galloway, 56 Mich. 272; vision endowing the widow with one- Tiedeman on Real Property, sec. 117. third part of all the right or interest ' Robinson v. Fair, 128 U. S. 53, the husband had at the time of his 84. decease in any lands or tenements ^ Agar v. Fairfax, 17 Ves. Jr. 533, that the complainants claim dower 552; Mundy v. Mundy, 3 Ves. Jr. 122 •in the premises described in the bill." and notes. 624 KEIIEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 410. the United States courts have held that it is a well recognized branch of equity jurisdiction.^ It seems that the courts of equity take jurisdiction for the purpose of getting a more per- fect partition or allotment of the property, assigning just shares and proportion to the parties as they are entitled to them, and to this end have power to decree pecuniary compen- sation to one or more of the parties when necessary (called owelty) so as to prevent injustice or unavoidable inequality.^ The jurisdiction and procedure in partition is, however, very largely regulated by statutes in the several states; in some states providing that the proceedings shall be governed by rules of equity, in others that the court of equity must con- form to the procedure existing in courts of law.' On this ac- count it is Yery difficult to lay down any general rule govern- ing the jurisdiction of the equity court. It has been held, however, that the court of equity has jurisdiction in cases for partition between joint owners of land, notwithstanding a remedy at law "is given by statute.^ iKlever v. Seawall, 65 Fed. 393, 396; Bankv. Dudley, 2 Pet. (U. S.) 492, 524; Donnor v. Quartermas, 90 Ala. 164. 2 Story, Eq. Jur., sec. 654. In Dall V. Confidence Mining Co., 3 Nev. 531, 535, 93 Am. Deo. 419, it was said: '• Though partition had its origin in the common-law courts, it is a sub- ject over which the courts of equity assume almost exclusive jurisdic- tion; and in disposing of the cases for partition, the equities of the re- spective parties growing out of their ownership of the property as tenants in common or otherwise are taken into consideration, and disposed of upon the broad principles which gov- ern those courts in the administra- tion of justice. As the law deems it against good morals to compel joint owners to hold a thing in common, a decree of partition may always be insisted on as an absolute right. It is not necessarily founded upon .any misconduct of the co-tenants or part owners. Hence, in decreeing a par- tition the rights and equities of all the parties are respected, and the partition decreed so as to do the least possible injury to the several owners."' ''Metoalf v. Hoopingardner, 45 Iowa, 510; Hopkins v. Medley, 97 111. 402. In Patton v. Wagner, 19 Ark. 233, it was held that "the statute but cumulates the remedy; and if, nevertheless, a party should elect to seek his remedy in chancery . . . he is entitled to such as the chan- cellor can afford him." In New York it was held that the several codes of procedure conferred jurisdiction upon parties who are disseized. Weston V. Stoddard, 137 N. Y. 119. < Thayer v. Lane, Harr. Oh. (Mich.) 247. See notes in following section. Formerly, and at common law, the relation of joint tenancy and in com- mon being held to be a voluntary relation, it was held that it could only be dissolved by voluntary parti- tion, but when the relation of co- partners was involved in the owner- § ill.] EEMEDIES ESTABLISHING PKIMAKT EIGHTS. 625 § 411. The subject-matter of the procedure — The prop- ®i"ty-— The subject-matter of the procedure may be either per- sonalty or realty,' and the court is also often asked to partition lands and the minerals they contain. Considerable discussion has been had as to the power of the court to partition minerals under the surface of the soil. And where the action was to parti- tion oil and gas, it was held that the judicial partition thereof by assignment of the oil and gas under sections of the surface was void. The court in its opinion said: " The decree of partition in this case did not pretend to divide the solid minerals in the land, as none were shown to exist; and such a partition as was made would be inequitable and unjust if any such solid minerals existed, for it divided the land into twelve narrow strips, and allotted to each of the three owners several of these strips al- ternately, so that each owner's mineral properties were divided into several distinct strips, separated from each other by the strips belonging to the others. This would destroy the value of the solid minerals, for each party would have to work each tract of his separated minerals separately, instead of having them in one compact body. This decree is nothing more than a decree to divide the carbon, oil, volatile minerals, gas and gaseous vapors supposed to be or that might exist under the land in controversy by imaginary lines drawn over the sur- face of the land. Equity is natural justice. It is equality. It never does a vain thing, or enforces a void or impossible contract. Men may divide the moon by imaginary lines, but ship of the property, the reason for cieney of the remedies gave rise to the rule did not exist, and to relieve the chancery partition, which was the difficulty that existed in such assumed by the chancery court, but cases, and in the time of Henry the is said to have never been eni- VIII, the inability of voluntarily sep- powered by act of parliment. Hall arating the interests of co-defendants v. Piddock, 21 N. J. Eq. 314; Story, was relieved by statute, which em- Eq. Jur. 656c; Gay v. Parpart, 106 U. powered joint tenants and tenants S. 679. It is now settled that when in common to compel partition. This a clear legal title exists the claimant was followed by other statutes which is entitled as a matter of right to a broadened and made more general partition. Smith v. Smith, 10 Paige the right of partition. See 31 Henry (N. Y.), 473; Willard v. Willard, 6 VIII, ch. 1, and 32 Henry VIII, ch. 33. Mackey (D. G), S.-ia The procedure is very succinctly ^ Godfrey v. White, 60 Mich. 443; given in Freeman on Partition, sec. Campau v. Campau, 19 Mich. 116. 423. The inadequacy and ineffi- 40 626 EEMEDIE8 ESTABLISHING PEIMAEY EIGHTS. [§ ill. equity will not enforce their contract. They ma}' divide the water in a well or in a brook, or the game in the forest, or the fishes in the sea, but equity will afford them no such relief. 'Oil and natural gas are minerals, in the view of the law; but, because of their peculiar attributes, they, as the subject of property, differ from other minerals. Out of possession, there is no property in them. They are not capable of distinct own- ership in place, owing to their liability to escape from the place where they may be temporarily confined, without neces- sarily any interference on the part of the owner of the soil, or others claiming through him, under whose land they may be found. Like water, thej' are not the subject of property, ex- cept in actual occupancy, and a grant of them passes nothing for which ejectment will lie. Oil and gas cannot, while in the ground, like the solid minerals, be the subject of an estate dis- tinct from that in the soil.' A grant to the oil and gas passes nothing for which ejectment will lie. It is a right, not to the oil in the ground, but to the oil the grantee may find." ^ Generally it may be said that raining property may be par- titioned the same as other real property, even though the fee of the land is still in the general government; the only ques- tion being as to how the partition is to be carried out. If the mine consists of beds of coal, placer mines or superficial depos- its covering a considerable tract or area of land with uniform- ity of grade and deposit, so that a just and equitable partition might be made, no doubt partition in kind might be made, but properties of this kind, that could be subjected to parti- tion in kind, would be rare.^ If the mine, however, consisted of lodes and veins, no fair division could be made, for veins are not usually evenly distributed, nor have they uniformity as to quality or quantity. The veins are generally irregular; sometimes of considerable width, at other times pinching to narrow proportions; sometimes consisting of regular veins, at other times of larger ore deposits, pockets, shoots or kidneys, with here and there faults, slips or horses of countr}'^ rock in the vein, so that it would be impossible to make partition in 1 Hall V. Vernon, 47 W. Va. 295, 49 436; Gill v. Weston, 110 Pa. St. 313, L. R. A. 404, 465; Williamson v. Jones, 1 Atl. 931. 39 W. Va. 231, 35 L. R. A .233, 19 S. E. 2 Cecil v. Clark, 47 W. Va. 403, 81 Am. St. R. 803, 35 S. E. 11. § 411.J EEMEDIES ESTABLISHING PEIMAEY EIGHTS. 627 kind. la such case a decree of partition might be obtained the same as of other property. But following the general rule of procedure in partition cases, it would be necessary to allege and prove that a partition of the property in kind would be manifestly injurious to the interests of the co-own- ers, and that a sale of the property should be made and the proceeds divided. And there could be no ditficulty in con- vincing a court that an equitable and actual partition could only be made by such sale of the property and division of the proceeds.' It seems to be a general rule that the title to the property must be in the parties plaintiff and defendants to the bill of complaint, and that the court will not entertain a bill by a stranger to the title for partition. It has been held that an administrator who has no interest in the property except a representative interest in the estate which he is appointed to administer cannot sustain partition.' The complainant must have an actual or constructive possession of the property to entitle him to partition where the title is a legal one. But it has been said that: "It is unnecessarj' to determine whether the question of the right to maintain such a bill can properly be raised upon the pleadings alone, as one strictly of jurisdic- tion, as some of the decisions would seem to indicate; or whether the court, notwithstanding the denial of complain- ants' title, are to look into the evidence and sustain the bill, if the complainants' legal title is so clear as to leave no serious question, as seems to be inferable from some of the cases. . . . The special province of a bill for partition is to sever the joint possession, so that each may enjoy his share in sever- 1 Lenfers v. Henke, 73 111. 405, 24 given him by statute, as in Indiana Am. Rep. 263; Paul v. Cragnaz, 25 and Utah." Whitlook v. Willard, 18 Nev. 393, 59 Pac. 857; Aspen v. Fla. 166; Foster v. Newton, 46 Miss. Pucker, 28 Fed. 320; Sears v. Taylor, 661; Speer v. Speer, 14 N. J. Eq. 340; 4 Colo. 38; Freeman on Co-tenancy Nason v. Willard, 2 Mass. 478; Rich- and Partition, 537. ards v. Richards, 136 Mass. 126; Tindal 2Ryer v. Fletcher Ryer Co., 136 v. Drake, 51 Ala. 578; Campau v. Cal. 482, 485, where it was said: "It Campau, 19 Mich. 116; Beeoher v. is, we believe, universally held that Beecher, 43 Conn. 560: Throckmorton the administrator of an estate has v. Pence, 121 Mo. 58; Nelson v. Hais- no such interest in the land as en- ley, 39 Fla. 145; Garrison v. Cox, 99 titles him to institute partition pro- N. C. 478. ceedings unless power is expressly 628 REMEDIES ESTABLISHING PEIMART EIGHTS. [§ 411. alty, and not to try legal titles. ... If the title, though of a legal character, be undisputed, or perhaps, though denied, if it appear to be so clear and incontestable as to admit of no reasonable doubt, and the court can see that a trial at law would be a mere formality, the bill will be maintained. If the title be an equitable one, or partly equitable and partly legal, the court of equity may very properly try the titles, and so probably when the title is of a purely legal character, but some obstacle exists to a fair and perfect trial at law."^ But it is generally held that if the complainant is in actual or construct- ive possession with the defendants, and his title or his co-ten- ancy is denied by them, the title may properly be tried under a feigned issue awarded by the court. As a general rule, how- ever, it must appear that the plaintiff is in the actual or con- structive possession, unless the title appears to be very clear. And if he has no possession, and the lands are adversely held and the title is doubtful or suspicious, the bill would seem tO' be premature, and should either be dismissed or the proceed- ings under it stayed till the complainant has an opportunity to establish his title at law.^ But where the bill was filed 1 Hoffman v. Beard, 23 Mich. 59, 63. 2 Hoffman v. Beard, 32 Mioh. 59, 63; Hemingway v. Griswold, 23 Mioh. 77; Hooper v. De Vries, 115 Mich. 331 ; Miller v. Miller, 100 Mich. 563. In Campau v. Campau, 19 Mich. 116, it was held that the statutes of the state which subjected the lands to the payment of debts in case the personalty was not sufficient did not create in the administrator, before the right was exercised, an interven- ing estate which would deprive the heirs of a partition of the lands. The heirs in such case are entitled to partition before the settlement of the estate or the payment of the debts, though the law requires them to have an estate in possession to maintain the suit. In Fenton v. Steere, 76 Mich. 405, where the de- fendant pleaded adverse possession, and where it appeared from the evi- dence that the legal title was doubt- ful, it was held that the proceeding should be stayed until complainant established his title at law. In Chanler v. Richardson, 65 Kan. 153, 69 Pac. 168, it was held that one out of possession cannot sustain parti- tion against one in possession who- claims the entire title. He must first establish his title and right to pos- session of his claimed proportion at law. Where lands are held adversely the remedy is first in ejectment; to settle the title, partition will not lie. Head v. Phillips, 70 Ark. 433, 68 S. W. 878. Adverse holding, no mat- ter how short a time, bars partition. In re Wall's Estate, 24 Pa. Co. Ct. R. 560; Satterlee v. Kobbe, 72 N. Y. S. 675; Hanneman v. Richter, 63 N. J. Eq. 365, 50 Atl. 904; Bacon v. Fay, 36' N. J. Eq. 411, 51 Atl. 797. In O'Brien V. Ash, 169 Mo. 383, 69 S. W. 8, it was held that the fact that the probate court had ordered the executor to § il2.J KEMEDTES ESTABLISHING PRIMARY RIGHTS. 629 praying that the defendant be declared a trustee of the title for plaintiff and for partition of the lands, it was held that the court having taken jurisdiction would settle the whole con- troversy, for the reason that a court of equity will entertain a bill to partition an equitable estate where the title is held by defendant and the equitable interest by plaintiff, although the defendant is in possession.' §413. Who may enforce partition.— It appears to be a universal rule, except in cases where it is changed by statute, that partition can only be maintained by persons in possession, or having the undisputed right to the possession of the prop- take possession of real estate which was in course of administration would not pi'event an action for partition. But in Bender v. Terwil- liger, 166 N. Y. 590, 59 N. E. 1118, held that actual possession not nec- essary. Morgan v. Mueller, 107 Wis. 241, 8J N. W. 313. 1 James v. Grofif, 157 Mo. 407, 57 S. W. 1081. In Barr v. Lamaster, 48 Neb. 114, 66 N. W. 1110, 33 L. E. A. 451, where adjoining owners of lots erected adjoining buildings thereon, having stairways, hallways, heating apparatus and skylights in common, and easements were granted to the owners of the buildings each to the other in so much of the stairways, halls and skylights, it was held that the easement of each in the property of the- other is owned in severalty, and that partition of the lots at the suit of either party would not be authorized. The court say: "By virtue of the agreements under which the buildings were erected, each party to this controversy has an easement in so much of the halls and skylight as is situated upon the lot of the other, and, in the language of plaintiff's counsel, such easements 'are in no way inconsistent with en- tire several ownership of the two buildings, and the mere existence of cross-easements does not authorize the court to make partition, because each party owns his easement in the property of the other in severalty.' The defendant, it is shown, granted to the plaintiff the easement in the hallways and skylight voluntarilj-. and for a valuable consideration, viz: the grant to him of a cross-easement therein. Such easement is real prop- erty, an incorporeal hereditament, and as much a part of the plaintiff's estate as the building itself The de- fendant is not merely prohibited from interfering with the access of the plaintiff and his tenants to the building of the latter by means of the common hallways, and their free enjoyment of the common skylight, but equity would interfere to pre- vent the tearing down or destroying by him of his own building during the existence of such easement. 3 Story, Eq. Jur. (12th ed. ), sec. 937; Columbia College V. Lynch, 70 N. Y. 440, 26 Am. Rep. 615; Henry v. Koch, 80 Ky. 391, 44 Am. Rep. 484. And, should he suf- fer his building to decay, the plaint- iff would have the right to enter for the purpose of repairing, in order to pi'eserve his easement therein. 3 Washb. Real Prop., p. 79; Washb. Easem. 654; Presoott v. White, 31 Pick. (Mass.) 341, 33 Am. Dec. 366: McMillan v. Cronin, 75 N. Y. 474." Bouham v. Weymouth, 39 Minn. 92. And see Welsh's Appeal, 126 Pa. St. 397, and oases cited. 630 KEMEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 412. ert3^ If one claims the property adversely to those in actual possession there could be no common or joint right, and the remedy would clearly be by an action at law to settle the right in an action of ejectment. It has been said that "the substance of the principle is, that purely legal titles are to be tried at law, and parties are entitled to have them so tried u'here they can have a jury trial as matter of right, unless there is some impediment to such trial which requires the aid of a court of equity to remove." ' If the possession is constructive or actual it would seem to be sufficient; but where a court of equity has obtained juris- diction of the cause upon some clear equitable ground of juris- diction, it will retain the cause irrespective of the question of ouster or adverse possession and do complete justice, though it may involve partitioning the property. This is but follow- ing out the theory that obtains in every equity cause: the court having once obtained jurisdiction will retain it until the whole controversy at issue between the parties is settled.^ 1 Hoffman v. Beard, 23 Mich. 59, 67. The learned court in this case ob- served: "On the ground, therefore, that the complainants are out ot pos- session and the bill and evidence tend to show an ouster and disseizin, and that the title sliould be tried and possession gained by complainants before partition should be granted, I think the complainants have failed to make a case entitling them to a partition. I find no American case, where the proceeding was by bill for partition, which controverts this rule, though some dicta may be found to the contrary. The rule above stated, as the I'esult of the American au- thorities, was first laid down by Chancellor Kentin the case of Wilkin \. Wilkin, 1 Johns. Ch. Ill, as the re- sult of the English authorities, and substantially the same rule seems to have been universally followed in this country where the proceeding was by bill in equity, and almost universally where it has been by petition under statutes of the various states." 2 Eozier v. Griffith, 31 Mo. 171. In Dameron v. Jameson, 71 Mo. 97, 100, the court said: "When the plaintiff asks for partition, and the defendant is in the adverse possession of the property, the courts refuse to parti- tion the land between them until plaintiff establishes his title, and a suit in ejectment is the proper pro- ceeding for that purpose; but where, as here, the plaintiff has an equitable title and asks the aid of the court of equity to establish it, if the court as- certain that he has an interest, and what that interest is, the doctrine that partition cannot be had when the defendant is in the adverse pos- session of the premises does not apply. The decree establishes plaintiff's title, and under it the court may put him in possession and a suit in ejectment becomes necessary. The court, hav- ing acquired jurisdiction of the cause, may proceed to determine the whole controversy by decreeing a partition of the premises." Gage v. Reid, 10'4 111. 509; Hillens v. Brinsfield, 108 Ala. 605. § 413.] EEMEDIES ESTABLISHING PEIMAEY EIGHTS. 631 §413. The bill of complaint.— The bill of complaint in partition must follow the general rules of pleading which ob- tain in drawing bills in equity, the most important of which is that the bill must upon its face make out a case of equitable jurisdiction containing all the requisites necessary to the de- cree prayed for. One or more of the co-owners of the property may join in the bill if they desire to do so, or any one of thein may file a bill making all the others defendants, but if the bill is filed on behalf of others, the complainant must allege in the bill in what capacity he brings the action. The property which is the subject-matter of the controversy must be cor- rectly described, and the interest of each of the parties therein set forth with sufficient particularity to enable the court, by its decree, to set off the share of each, that the defendants in the cause may have notice of the claim made by the complain- ant; for it is a rule "that the relief given must be consistent with the case made by the bill.'" If the property be of such a nature that it cannot be partitioned in kind, it should be so alleged in the bill of complaint, and the reasons why it cannot be so divided should be set forth, for this may become a very important issue in the trial of the cause,^ as the only decree for partition, if the court should so find, would be a sale of the property and a division of the proceeds. And it has been held that " a sale for partition is a matter of right provided it shall appear to the court that the property cannot be equally 1 Thayer V. Lane, Walk. Ch. (Mich.) the allegations of the bill were as 200,205. follows: " And your orators further '^ But it has been held that the rea- show that the said real estate is not sons why the property cannot be susceptible of division and cannot be partitioned in kind need not be divided without greatly impairing averred with great particularity. In the value of said real estate." Earle Hayes v. McReynolds. 144 Mo. S48, v. Turton, 26 Md. 33. In Van Cort- 353, where the bill was demurred to landt v. Beekman, 6 Paige (N. Y.), and this point raised, the court say: 493, it was held that it was the duty •' The petition alleges that 'said real of the complainant to state in his estate is not susceptible of division bill the rights and interests of all in kind without destroying its value,' the parties so far as they are known and the averment of other facts why to him, according to his best infor- it could not be partitioned in kind mation and belief if not positively was unnecessary. This allegation known. Harmon v. Kelley, 14 Ohio, was sufficient to present that issue, 503; Prichard v. Littlejohn, 128 III. and if defendants desired to raise it 123, 31 N. E. 10; Eberts v. Fisher, 44 they could have done so by answer." Mich. 551. Wilson V. Green, 63 Md. 547, where 632 EBMEDIES ESTABLISHING PRIMAET EIGHTS. [§ 413. divided among those entitled thereto, or that it would be manifestly for their interest that it should be sold."^ It may be said that the bill for partition may contain more than the one object if the relief sought for is incident to the proceedings and for the obtaining of equitable relief, that in equity and good conscience ought to be granted in order to settle the entire controversy between the parties. As, for ex- ample, the bill would not be considered multifarious if it prayed for an accounting for rents and profits, or the specific performance of a contract which relates to the property in question. And it has been held that a bill for partition may ask for the correction of the deeds of conveyance bj' which the lands are held and a decree for specific performance of con- tract for the conveyance of some of the tracts so as to vest the title in the purchasers, for the reason that they are incident to the proceedings, and the parties are entitled to deeds convey- ing the legal title, so that when partition is made each party shall have his equitable title converted into a legal title.^ A bill for partition may also pray for quieting the title to the property. It has been held that "if the disputed titles are equitable, courts of equity will exercise jurisdiction to settle them, and will then grant final relief by way of partition under the same bill. Such a bill is not multifarious, because the partition is decreed incidentally, to complete the measure of relief and avoid multiplicity of suits. Under these circumstances, how- ever, the bill should be so framed as to disclose its real object.' The bill should also allege that the plaintiff will suffer in- jury if partition is not made of the property, except in cases where the parties are tenants in common, for in such case they are entitled to partition as matter of right. The prayer of the bill should conform to its object. If the property is divisible in kind it usually prays that it may be partitioned, setting out to each of the parties their particular part or share to which they are entitled according to the facts alleged. If the prop- 1 Ross V. Ramsey, 3 Head (Tenn.), also contain a prayer for an account- 15, 17. ing. Davidson v. Thompson, 22 N. 2Rann v. Rann, 95 111. 433, 438. In J. Eq. 85; Bridgford v. Barbour, 80 Obert vi Obert, 10 N. J. Eq. 98, it was Ky. 529. held that a bill for partition might 3 Hayes' Appeal, 133 Pa. St. 110,133. § Hi.] EEMEDIES ESTABLISHING PKIMARY EIGHTS. 633 erty is indivisible in kind, then the bill prays that it may be sold and the proceeds thereof divided among the parties as each is equitably entitled. If advancements have been made, or if for any reason either of the parties is entitled to a greater interc-st because of improvements or advancements, the prayer of the bill should be in conformity to the division or shares claimed by reason of advancements or improvements. And, as we have seen, the portion of the property upon which said improvements are made, if consistent with a proper divis- ion, is often, if not generally, set off to the party who has made the improvement. Usually, however, the prayer is in the alternative for a partition of the property in kind; or if that cannot be made, that it be sold and the proceeds divided. There should also be a prayer for general relief, because at the hearing the court may find it necessary to make a somewhat different decree from that prayed for in the bill of complaint.' § 414. Defenses in partition. — Defenses in partition cases and the manner of presenting them are governed by the general rules applicable to defenses in equity. If the complainant fails to state a case which will support the prayer of the bill it is subject to demurrer.^ But it has been held that mere uncer- tainty in the description of the premises would not subject the bill to a demurrer.' And so, if there is a non-joinder of the defendants, or the court has no jurisdiction, or where there is a special statutory defense, or where the defendant holds the property adversely to the plaintiff, or where there has been an ouster of the complainant, or the plaintiff's possession or right to possession is denied, or if any fact that will support a plea in equity exists, they may be taken advantage of by plea as in anj' other equity case.* The defendant may answer when he desires to deny the al- 1 Claude v. Handy, 83 Md. 335, 84 2 Broad v. Broad, 40 Cal. 493. Atl. 533; McKay v. McNeill, 6 Jones, ^ Godfrey v. Godfrey, 17 Ind. 6, Eq. (N. C.) 3.58. Where it appears * German v. Machin, 6 Paige (N. Y.), that a division of the estate would 388; Jenkins v. Van Schaak, 3 Paige be impracticable the complaint (N. Y.), 343. In Flagg v. Thurston, was held not to be defective vrhere 11 Pick. (Mass.) 431, where a plea in the prayer was only for a sale and bar was interposed to a petition, it division of proceeds. Lorenz v. was held that the plea was bad inas- Jacobs, 53 Cal. 34. But held other- much as it did not show any title wise in Dyer v. Vinton, 10 R. I. 517. in the respondent. 634 REMEDIES ESTABLISHING PEIMAEY EIGHTS. [§§ 415, 416. legations in the bill, and it is the duty of the defendant to set forth fully and particularly his rights and title to the property in question, the nature and extent of his interest, and, if he demands an allowance for improvements or for rents and profits, he must make the several claims by proper allegations in his answer.^ The answer of the defendant may controvert the interest or rights or title of the co-defendants, and in such case a cross-bill might be filed. The defense that defendants held by adverse title or possession may also be taken advantage of by answer. And defendants may deny the joint tenancy or tenancy in common of the parties as alleged in the bill.^ § 415. Default of defendant and procedure. — If the defend- ant fails to appear and demur, plead or answer to the bill of complaint, the complainant may, upon proper showing, enter his default and proceed to a decree pro oonfesso. The practice in such case is the same as in ordinary equity cases, and the decree in such case would be the same as decree where defend- ant appears and defends; either dismissing the bill or ordering a partition of the property. § 416. The hearing and decree or order. — The cause being at issue, or upon default of defendant, is brought to hearing the same as any other chancery cause. If an answer has been filed and a hearing is sought upon the merits, or if the default of the defendant has been entered, proofs must be adduced sufficient to make out a. jn-itiia facie case and which show all the requisites to a partition of the property in question. If upon the hearing the court shall find that there should be a partition of the property in kind, a decree will be entered in iln Morenhout v. Higuera, 32 Cal. ^McArthur v. Clark, 86 Minn. 165, 390, 295, the court say: -'Whether 90 N. W. 369; Whitney v. Whitney, plaintiffs or defendants, they are re- 171 N. Y. 176, 68 N. E. 834; Hamilton quired to set forth fully and partiou- v. McLean, 169 Mo. 51, 68 S. W. 930. larly the origin, nature and extent of In Illinois it was held that a home- their respective interests in the prop- stead inherited is not subject to par- erty. This having been done, the in- tition among the children and the terest of each, or all, may be put in widow. Walker v. Walker, 195 111. issue by the others; and if so, such 409, 63 N. E. 271. And where lands issues are to be first tried and deter- are claimed by another and held ad- mined, and no partition can be made versely, partition will not lie, for in until the respective interests of all such case there is a legal remedy by the parties have been ascertained ejectment. Head v. Phillips, 70 Ark. and settled by trial." 432, 68 S. W. 878. § -ilG.] EEMEDIES ESTABLISHING PEIMAEY RIGHTS. 635 the cause appointing commissioners to partition tiie property among the parties in accordance with the order or decree of the court; the decree setting out particularly the manner in which the partition shall be made and the shares that shall be given to each of the parties. And it is generally held that allowance for improvements of the propert\' will be taken into consideration in determining the just shares, whether the di- vision of the property be in kind or the proceeds after sale, and that rents and profits as well as betterments and improve- ments may be considered.^ As has been said, the decree may order portions of the property that have been improved to be granted to the party or parties who have caused or made such improvements, allowing them for the improvements claimed in the pleading and proven at the hearing. And where the property cannot justly and equitably be divided, giving to the defendants their shares in kind, the court will by its decree allow certain of the defendants to take a larger share of the property in kind and pay over to other defendants a sufficient amount of money to equalize the division that is made. This amount of money thus paid or ordered is called owelty.- The property, if partitioned in kind, is usually divided and allot- 1 Fen ton v. Miller, 116 Mich. 45: well as for his own benefit, and that Hunt V. Hunt, 109 Mich. 399. the right to the use of a portion of -' In Smith v. Smith, 10 Paige (N. Y.), the water of the pond might be given 470, where the real estate of which to one of the parties and another por- partition was sought consisted of a tion to another, located by flumes or mill-dam and the lands overflowed gates, and other divisions were sug- by the pond, that which constituted gested; the whole tenor of the opin- the water-power necessary for the ion being to the effect that the divis- use of several mills was the subject- ion should be equitably made, and matter of the partition. The chan- that the court of equity has author- cellor in his opinion discusses the ity to make such partition. In Mar- various methods of making partition tin v. Martin, 95 Va. 26, 27 S. E. 810, of such property and analyzes the it was held that the portions might division, citing authoritie.s. In the be equalized by charging one portion opinion it was not held necessary to with an easement in favor of another divide the water of the pond by hori- portion. Jameson v. Rixey, 94 Va. zontal lines; that the lands under 342; Fenton v. Miller, 116 Mich. 45, 74 the water and the dam might be di- N. W. 384; Powell v. Weatherington, vided by metes and bounds.and por- 124N.C.40,32S.E.380; Finley v.Cath- tions given to each party subject to cart, 149 Ind. 470; Updike v. Adams the servitude and charge of keeping (R. I, 1903), 52 Atl. 991; Robinson v. up and repairing the dam on the part Robinson (R. I., 1902), 52 Atl. 992. of each for the use of the other as ■636 REMEDIES ESTABLISHING PEIMAET EIGHTS. [§ 416. merits made among the parties by commissioners appointed by the court, and in making the division of the property they are generally authorized to take the evidence of persons familiar with the property, if it is necessary to do so, their proceedings being open, not secret, the witnesses being brought in by sub- poena to be examined in the matter. The witnesses may be ex- amined on interrogatories if so directed in the decree and com- mission. The proofs taken before the commissioners should be fully reported to the court.' If it appears that the property is not equitably divisible in kind, that fact appearing to the €ourt upon the hearing, and proper allegations having been made in the pleading; or the commissioners appointed to make the partition, after taking proof, having so reported to the court, the court may by decree order a sale of the prop- ertj' and that the proceeds of the sale be divided between the parties; but in such case the court in the decree ordering sale should determine the rights and interests of the co-tenants in the lands.^ This right to sell the property and divide the pro- ceeds is largely regulated and the ]irocedure determined by statutes in the several states. But it has been held that the equity court has this right because of its inherent powers.' In some of the states the course of practice is to appoint a commission to determine the necessity or advisability of a sale of the property and report its findings as to that fact to the court; but in most jurisdictions the court is held to have au- thority to decree a sale without the advice of a commission. In Thompson v. Ilardman,^ an early New York chancery 1 2 Danl. Ch. PI. & Pr. 1152-53. (Pa,), 320; De War v. Speiice, 2 2Childers v. Loudin, 51 W. Va. Whart. (Pa.) 211; Patterson v. Blake, 559, 43 S. E. 637. The commissioners 12 Ind. 436. sit and determine the questions as 3 Beclsham v. Duncan (Va., 1888), to partition judicially, the power of 5 S. E. 690; Lake v. Jarrett, 13 Ind. the court for this reason being dele- 395; Bragg v. Lyon, 93 N. C. 151; gated to them. Hills v. Dey, 14 Post v. Post, 65 Barb. 192; McCall's Wend. (N. Y.) 206; Clarendon v. Appea-1, 56 Pa. St. 363; Fight v. Holt, Hornby, 1 Peere Wms. 446; In re 80 111. 84; Baldwin v. Aldrich, 34 Vt. Thomson, 3 N. J. Eq. 637; Hancock 536, 80 Am. Deo. 695; Blakemore v. V. Craddock, 2 B. Monroe (Ky.). 389. Blakemore, 39 La. Ann. 804; Wilson The commissioners may report that v. Smith, 22 Grat. (Va.) 503; Johnson they find a partition of the property v. Olmsted, 49 Conn. 509; Simpson v. in kind impracticable and preju- Simpson, 59 Mich. 71. diciaL Wetherill v. Keim, 1 Watts < 6 Johns. Ch. (N. Y.) 436. § 416.] REMEDIES ESTABLISHING PRIMARY RIGHTS. GST case, it was held where the statute provided that the court of law might order a sale when the commissioners return that partition cannot be made without prejudice, that the chancery court need not appoint commissioners to advise the court as to the condition of the propert}^; that the master in chancery is the ordinary and proper oiBcer for such duties and could perform that trust, but that commissioners should be appointed to make the sale and convey the property to the purchaser. And where the property has been partitioned or sold under the decree of the court, the court having made an interlocu- tory decree appointing commissioners in the premises, the commissioners should report fully to the court their entire pro- ceedings, attaching all the proofs, if any are taken, to their findings for confirmation. Upon the coming in of this report if any of the parties feel aggrieved by reason of it, or the pro- ceedings, they may move to set it aside, or to amend the report, stating fully their reasons therefor, and if necessary may at- tach aflBdavits sustaining their petition or motion. LTpon this the court will review the case upon the hearing of the motion to confirm the report. If the report is found to be regular and meets the judgment and opinion of the court, it will be con- firmed by a final decree in the cause. If the court, however, determines that the report ought not to be confirmed because of some irregularities in the report or the proceedings, or for the reason that the court in its opinion will not adopt the judgment of the commissioners, it will set aside the report and may appoint other commissioners to determine the matters submitted. In such case the report of the commissioners should describe the property divided and the shares allotted to each party, particularly, and if, in order to make an equal division and it cannot be made otherwise, the report should specify the compensation to be paid by one or more parties to another for equality of partition. This report is filed in the cause with the register in chancery. The final decree is a confirmation of the report of the commissioners and the partition made by them, or by the master in chancery, and the manner of making it, and confirming the shares of the parties to the property in question. Usually the decree requires the parties to make proper deeds one to the other if the division has been made of the property, and upon refusal the decree will stand as the evidence of title €38 EEMEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 417. to the property partitioned. In these proceedings, if it is nec- essary to do so, a receiver may be appointed to take charge of the rents and profits of the property, and such other matters as may be incident to the proceedings; or an injunction may be issued where it becomes necessary to enjoin any of the par- ties to the cause. The practice and proceedings, however, are so generally provided for by statutes in tiie different states that it will be necessary to always consult them.' III. Eefoeming a Conteact, Deed oe Weitten Obligation. §417. When equity will take jurisdiction. — A court of equity will assume jurisdiction to reform a written instrument, contract or obligation when it clearly appears that the con- tract or writing does not express the intention of the parties who made it, either because of mutual mistake in that it does not express what was really intended by the parties, or where there has been a mistake upon the part of one of the parties and fraud upon the part of the other party, if in the latter case it appears that the mistake was without negligence. The necessity of the remedy is obvious. A court of law may enforce a contract as it is written, or it may refuse to enforce the con- tract because it was fraudulently procured, but it has no power to reform a contract so that it will express the intention of the parties who made it; and when the alleged contract is thus faulty, the enforcement of it as written would of course be unjust; to set the contract aside entirely, and not reform it, in many cases would be equally unjust and inequitable, be- cause it would deprive the party of the benefit of the real contract made. It therefore follows that justice and equity demand that there should be a reforming of the instrument to the extent that it express the intention of the parties. There being no remedy at law, equity takes jurisdiction, and the reformation of contracts, deeds and written obligations is peculiarly within the equitable jurisdiction. In Sawyer v. Hovey'^ the court say: "It is a further and i3Barb. Ch. Pr., sec.4, ch. 9, p. 293; First Nat. Bank v. Brenneman, 114 2 Danl. Ch. Pr. & PI. (4th ed.) 1152, Pa. St. 315; Nance v. Metcalf, 19 Mo. «tc. App. 183; Pomeroy's Eq. Jur., sec. 23 Allen (Mass.), 331; Page v. Hig- 1376; Marsh v. McNair, 48 Hun (N. gins, 150 Mass. 37, 5 L. R. A. 153; Y.), 117. And where one contracted § -ilS.] EEMEDIES ESTABLISHING PEIMA.KY EIGHTS. 639 verj'- material rule that the court will not afford its aid or allow a written instrument to be affected by parol or other extrinsic evidence, unless the mistake is made out according to the understanding of both parties, by proof that is entirely exact and satisfactory. And this for the paramount reason, that otherwise, if a deed should be reformed and corrected upon proof of the mistake of one of the parties, the great in- justice might be done of imposing upon the other the conse- quences of a contract to which he had never assented, and therefore wholly against his will." § 418. The mistake upon which the remedy may be based. It is not every mistake that will sustain a bill in equity for a reformation of a contract or instrument. It is generally held that ignorance of the law with knowledge of the facts cannot be set up as a defense; and it would follow that a mistake as to the legal effect of terms used in a contract would not be sufficient upon which to base a bill for reforming it.' The rea- son of the rule is that such a mistake would be easily asserted and very difficult to disprove, and, if it were allowed to obtain, the grossest imposition and the greatest fraud might be prac- ticed. It has been said that " it would seem, therefore, to be a wise principle of policy that ignorance of the law, with knowl- edge of the fact, cannot generally be set up as a defense; and it appears to be settled by a course of equity decisions that ignorance of one's legal right does not take the case out of the rule, when the circumstances would, otherwise, create an equi- table bar to the legal title." ^ But ignorance of the law of a to sell and convey premises subject the insertion of it was a fraud upon to mortgages, the deed wlien exe- the plaintiff. Kilmer v. Smith, 77 <3uted to the plaintiff, who was as- N. Y. 226; Albany City Savings Inst, signee of the contract, contained a v. Burdick, 87 N. Y. 40, where it was clause by which the plaintiff was held that the non-examination of a made to assume and agreed to pay deed was not such negligence as the mortgages; the deed was ac- took from the party the right to cepted and put on record in igno- predicate fraud upon the transac- rance of the fact that such a clause tion; Palmer v. Hartford, etc. Co., 54 was contained in it, supposing that Conn. 488; Ramsey v. Smith, 33 N. J. the deed would follow the contract; Eq. 28. the clause being inserted without i Calverly v. Harper, 40 111. App. 06. the knowledge or consent of the ^ storrs v. Barker, 6 Johns. Ch. (N. plaintiff, the court held that equity Y.) 166, 169; Railway Co. v. Soutter, would reform the deed by striking 13 Wall. (U. S.) 517, 534. The rule •out the clause upon the ground that was stated by Lord Ellenborough in 640 REMEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 418. foreign country, or of a foreign state in the United States, has- been held sufficient to afford jurisdiction to the court of equity to reform a contract where the error was the result of suci a mistake.' Mr. Justice Story, in discussing the rule, after an examina- tion of the authorities, concludes that the rule is relaxed where there is total ignorance of title founded upon a mistake of plain and settled principles of law, and in cases of imposition, mis- representation, undue influence, misplaced confidence or sur- prise, but says "it may be safely affirmed, upon the highest authority, as a well-established doctrine, that a mere naked mistake of law, unattended with any such special circumstances as have been above suggested, will furnish no ground for the interposition of a court of equity."^ an early English oase. Bilbie v. Lum- ley, 2 East, 469; Atlantic, etc. Co. v. Nelms (Ga., 1903), 43 S. E. 380; Ather- ton V. Roche, 193 111. 252, 61 N. E. 857, 55 L. R. A. 591. iHaven v. Foster,9Piok.(Mass.)112, 139. In Revels v. Revels, 64 S. C. 256, 43 S.E. Ill, where a deed was executed in conformity to an understanding be- tween the mother and her son that she should deed the property to him, he to bind himself to give her support for her natural life, and the consid- eration or stipulation to support the mother was not inserted in the deed, it was held that the defendant son should execute a deed containing the consideration. 2 1 Story, Eq. Jur., sees. 137, 138. In Sibert v. McAvoy, 15 111. 106, 109, the court say: "If he misconstrued the contract as written that was a mistake of law, and not of fact, and for such mistakes equity can grant no relief. It is where parties intended to insert words in a contract which were by accident omitted that equity can reform the contract by inserting them, or by expunging words they did not intend to have inserted. If the words are written as the parties intended they should be written, or supposed they were written, when they signed the conti'act, no matter how much they may be mistaken as to the meaning of those words, no- relief can be granted, either at law or in equity. The con.struction of words is a matter of law; the inser- tion of words is a matter of fact. It is for mistakes of fact alone that contracts may be reformed." Gordere V. Downing, 18 111. 493. In Goltra v. Sanasack, 53 111. 456, 458, the court say: "The rule is inflexible that a mistake or misapprehension of the law is never relieved against or cor- rected. If a party designs to and performs an act, under a mistaken view of the law affecting the trans- action, he is held to the obligation incurred. Asa matter of necessity, all persons are presumed to know and act in view of the law-, and the maxim is that ignorance of the law excuses no one." Purvines v. Har- rison, 151 111. 219, 333, 37 N. E. 705, 706; Seymour v. Bowles, 173 111. 521, 524, 50 N. E. 123, 123; Butterfleld v.. Sawyer, 187 III. 598, 602, 58 N. E. 602, 53 L. R A. 75. But see Abraham v. Northern Ins. Co., 40 Fed. 717 ; Canedy V. Marcy, 13 Gray, 373; Gillespie v. Moon, 2 Johns. Ch. (N. Y.) 596, 7 Am> J 41S.] REMEDIES ESTABLISHING PEIMAEY EIGHTS. 641 If the mistake is a mistake as to the facts and is mutual, — and the contract or written instrument does not express the real contract agreed upon, equity will reform it. And if the mistake be the mistake of one party and is accompanied by fraud of the other party, equity will reform it. So where there was a mistake of the draftsman, by which some of the terms of the agreement were omitted in drawing it, it was held that a decree reforming the instrument so that it would contain the omissions, and to specifically' enforce it, should be made.' It is generally conceded that courts of equity have a wide discre- tion in this class of cases, where the object is to give to the parties the benefit of the real contract made by them. But if the instrument is doubtful, or merely conjectural, the court will not decree that there is a mistake in the instrument and undertake to reform it.'' Nor will the court of equity supply an agreement that was never made. It will only reform agreements where to reform them is to express the real inten- tion of the 'parties.' The court, however, will at all times pro- Deo. 559; Young v. Miller, 10 Ohio, 85; McNaughten v. Partridge, 11 Ohio, 223, 38 Am. Dec. 731; Cooke v. Husbands, 11 Md. 492. In a dissenting opinion in Atherton V. Eoche, above cited, the judge draws a distinction claimed appli- cable to this rule. He says: " Decis ions holding to the contrary are found, — some in our own court; but it seems clear that in the better rea- son and on much the greater weight of authority, it must be said that in all of such oases the adjudication proceeded upon an erroneous view as to the true meaning of the well- established rule that a mistake of law cannot be relieved against, — that is, that parties are presumed to contract with reference to the legal principles which control tlie subject-matter of the transaction, — and that such legal principles enter into and form an inseparable part of their contract, and it is not within the power of the court to make a new contract for the parties. A mis- 41 take as to such legal principles can- not be corrected, but a mistake as to the legal meaning and effect of words selected by the parties in drafting written instruments to evidence the agreements into which they have entered, though mistakes of law, do not enter into and become part of the contract, and such in- struments may be so reformed that they will declare the true and real agreement or undertaking of the parties.'' Frazier v. Jeakins, 64 Kan. 267, 67 Pao. 854; Ackerman v. Beg- risoh (N. J. Eq., 1901), 50 Atl. 673. 1 Murphy v. Sooney, 45 Cal. 78. ^ Williams v. Houston, 4 Jones Eq. (N. C.) 277. 3 Graves v. Boston, etc. Co., 2 Cranch (U. S.), 419; Batesville Inst, v. Kauffman, 18 Wall. (U. S.) 151; Morris v. Bacon, 128 Mass. 58; Com- monwealth V. Reading Bank, 137 Mass. 431, 443. In Vary v. Shea, 36 Mich. 388, it was held that the evi- dence should be so clear as to estab- lish the fact beyond cavil, and where 042 EE.MEDIES ESTABLISHING PRIMARY RIGHTS. [§ 419. tect the rights of hona fide purchasers or persons who have superior equities. To do otherwise would be inequitable. The court will, of course, take into consideration all of the circum- stances, and if there is sufficient upon the face of the trans- action to apprise a reasonably prudent man of the fact that an error or mutual mistake has been coininitted, or if the notice is sufficient to put such a person upon inquiry, he will not be protected.' § 419. The procedure — The bill of complaint. — The pro- cedure is by bill in equity praj'ing for a decree of the court to reform the instrument. The bill, like all other bills in chan- cery, must be directed to and filed in the court having jurisdic- tion of the cause, and must contain allegations of fact sufficient to entitle tbe complainant to the relief prayed, that the court and the parties may have a full understanding of the contract complained of.^ The instrument which is sought to be reformed should be set forth in the bill, so that from it and the allega- tions in the bill of complaint it may clearly appear that it does not conform to the real contract made by the parties. The bill should also show the particular mistake or the fraud there was no allegation of frauJ or Pac. 315. In Savings Bank v. Taylor, mistake in drafting the contract 76 N. Y. S. 790, it was held that where equity will not decree the addition the instrument, because of a mistake of new provisions which it is claimed of the person who drew it, described were not embraced in it. White v. a larger tract of land than was in- Port Huron, etc., 13 Mich. 356; Reyn- tended by the parties, reformation olds V. Campbell, 45 Mich. 539; Bates of the instrument maybe had by V. Bates, 56 Mioh. 405. The complain- the seller even against a purchaser ant seeking to correct a deed must for value and in good faith, in the show, among other things, that he absence of any conduct on his part holds under it. Balentine v. Clark, calculated to mislead the vendee. 38 Mioh. 395; Rowley v. Towsley, 53 Smith v. Smith, 134 N. Y. 63, 31 N. E. Mich. 339. If the conveyance was 858; Albany City, etc. v. Burdick, voluntary it cannot be corrected 87 N. Y. 40, 46; Curtis v. Albee, 167 except by consent of all the parties. N. Y. 360, 364, 60 N. E. 660; Stines v. Redding v. Rozell, 59 Mich. 476. For Hayes, 36 N. J. Eq. 369. If the pur- reformation by mortgagee see Wen- chaser had knowledge of the mistake dell V. Crysler, 73 Mich. 437; Kimble reformation will be allowed as to v. Harrington, 91 Mich. 381, 51 N. W. him. Memphis, etc. Ass'n v. Wiegner, 936. But see Ford v. Daniels, 71 169 Mo. 301, 69 S. W. 365; Mississippi Mich. 77; Shirley v. Rice, 79 Va. 443. Valley, etc. Co. v. McDonald, 146 Mo. 1 Quick V. Stuyvesant, 3 Paige 467, 48 S. W. 483. For general dis- (N. Y.), 83, 93; Carter v. Leonard cussion see note, Page v. Higglns, 5 (Neb., 1903), 91 N. W. 574; Deseret L. R. A. 153. Nat. Bank v. Bunton (Utah, 1898), 53 SLeavitt v. Palmer, 3 N. Y. 19, 38. I 420.] REMEDIES ESTABLISHING PEIMAEY EIGHTS. 643 and mistake complained of and how it occurred; what the real contract was; how it differed from the contract that was ex- ecuted, and the injury which resulted to the complainant there- from. If the mistake complained of is the result of fraud on the part of the defendant, the facts which are relied upon to make out the fraud must be fully and carefully stated ; and it must clearly appear in the bill of complaint that the mistake was in no wise the result of the negligence of the complainant; and if fraud is charged, that the complainant relied upon the misrepresentations, and that by reason of them he was induced to execute the instrument.' "While the bill is for the purpose of instituting a direct pro- ceeding for the reformation of the contract or written instru- ment, it will not be held to be multifarious if it has the further object of enforcing the contract or written obligation as re- formed by the court. As, for example, a bill may be filed to reform an error in the description of lands in a mortgage upon real estate, and at the same time, by making necessary allega- tions in the bill, pray for the foreclosure of the mortgage as reformed. If it be .a contract for the sale of property, a bill may be filed to reform the contract and to specifically enforce it; that is, the plaintiff may, in a bill for reformation of a con- tract or written instrument, ask such other relief as is consist- ent with the object of the bill, and which is necessary to a full and complete equitable remedy.^ § 420. Defenses. — Defenses to a bill for the reformation of a written instrument are not dissimilar to defenses in equity 1 For discussion of complaint and 2 Pi-ater v. Bennett, 98 Ga. 413. In form of complaint, see Palmer v. Adams v. Wheeler, 132 Ind. 251, 254, Hartford Ins. Co., 54 Conn. 488; it was held that "an action to re- Tucker V. Madden, 44 Me. 206; Breen form a written instrument is in the V. Donnelly, 74 Cal. 301; Grossbaoh nature of an action for the specific V. Brown, 72 Wis. 4.58; Gardner v. performance of a contract, and ex- Califoruia, etc., 137 Cal. 71, 60 Pac. cept where the party seeking the 544; Sattertield v. Speir, 113 Ga. 84, reformation is a mere volunteer, or 37 a E. 211; Center Creek, etc. Co. unless the principles of estoppel for- V. Lind.say, 21 Utah, 192, 60 Pao. 559; bid it, courts of equity have jurisdic- State V. Lorenz, 23 Wash. 289,^ 60 tion to reform and enforce the con- Pac. 644; Kilgore v. Redmill, 121 tract as it was made by the parties." Ala. 485, 25 So. 766; Koen v. Kerns, Nicholson v. Tarpey, 89 Cal. 617; 47 W. Va. 575, 35 S. E. 903; Penfield Delaware, etc. Co. v. Gillett, 54 Md. V. Village, etc., 160 N. Y. 697. 219. 644 REMEDIES ESTABLISHING PRIMARY RIGHTS. [§ 420. cases generally. They are by demurrer, plea and answer. If upon the face of the complaint, admitting all the well-pleaded allegations to be true, the complainant has failed to make out a case which entitles him to a decree, the defendant may sus- tain a demurrer to the bill; as where upon the face of the bill it appears that the statute of limitations has run against the proceedings.' Or where it appears upon the face of the bill that there has been long continued laches and that the oom- plainant has negligentl}'^ failed to bring his action within a reasonable time.'^ Or where it appears upon the face of the bill that the error complained of is one that equity will not re- form ; as, for example, that it is a mistake as to the legal effect of the contract; or that it is such a mistake that if it were re- formed the reformation would be entirely futile.^ Or where the complaint is bad for uncertainty in that it fails to allege what particular property or lands are in question.* Where some certain defect fatal to the bill, but not appearing upon the face of the bill, is sought to be used as a defense, it should be taken advantage of by plea. And as is usual in equity cases, the defendant may traverse the facts set forth in the bill, or set up matter in avoidance of them by answer; as that the complainant is estopped; that the action is barred by the stat- ute of limitations; that a decree would be futile; that the al- legations in the bill of complaint, that the contract was ob- tained by fraud and should be set aside as void, are not true; that the erroneous contract was the result of gross negligence ; 1 In Webb v. Webb, 23 Ky. L. Rep. guided by them as setting forth the 1057, 64 S. W. 839, the statute pro- true contract between the parties, vided that no proceedings to correct frame a decree which would be sufiH- errors could be taken after ten years, ciently definite and certain in its de- 2 Elam V. Haden (Ky., 1897), 51 S. scription of the land intended to be W. 455. conveyed to identify the premises. 'Gardner v. Knight, 124 Ala. 273, If the deed were executed in accord- 27 So. 298. ance with these allegations it would * Satterfield v. Speir, 112 Ga. 84, 88, be void for uncertainty in the de- where it was said: "It needs no ar- scription of the land." And in this gument to demonstrate that it is im- case it was also held that the fatal possible to derive from these allega- defect of uncertain allegations could tions a definite description of any not be cured by the prayer for relief ;^ particular forty acres of land. No that the court could not make a new surveyor could take them and guided contract for the parties but must deal by them alone lay out this tract of with the contract as they find it. land. No court could take them and §§ 421, 422.] EEMEDIES ESTABLISHING PEIMAEY EIGHTS. 645 that the defendant is a honafide purchaser, or any other reason or facts which would defeat the complainant.' § 421. Proofs. — -The burden of adducing sufficient proof is upon the plaintiff, and it is generally held that it should be of greater weight than a mere preponderance of evidence where it is sought to reform a written instrument. The presumption is that the contract, deed or written instrument, the subject of the procedure, is valid, and in all respects the contract of the parties as it purports to be; the plaintiff by this procedure seeks to impeach the contract and this presumption, and therefore the courts have generally held that the proofs must be clear and at least beyond a rational doubt. '^ In a recent case in New Jersey it was said, to justify a ref- ormation upon either the ground of mistake, or fraud and mistake, the proofs must be entirely clear. Either mista"ke or fraud must be proven, not only by the weight of evidence, but beyond a rational doubt.' IV. Eescission, Cancellatioit, Sueeendee oe Dischaege of Insteuments. §422. The equitable jurisdiction. — Equity takes jurisdic- tion of cases for rescission, cancellation, surrender or discliarge of instruments because there is no adequate remedy at law, common-law courts having no power to grant the rescission, cancellation, surrender or discharge of an instrument. The jurisdiction rests fundamentally upon the grounds of fraud, iBussey V. Moraga, 130 Cal. 586, 63 571, 50 Atl. 693; Green v. Stone, 54 Pao. 1081. N. J. Eq. S87, 396, 34 Atl. 1099, 55 2Steinbach v. Hill, 25 Mich. 78; Am. St, Rep. 577; Sawyers v. Saw- Bellair v. Wool, 35 Mich. 440; Jones yers, 106 Tenn. 597. In Stroupe v. V. Disbrow, Harr. Ch. (Mioh.) 103; Bridger (Iowa, 1903), 90 N. W. 704, it Carroll v. Rice, Walk. Ch. (Mich.) 373; was said that " to justify the finding Matteson v. Morris, 40 Mich. 53; Rit- that the complainant was deceived ter V. Ritter, 43 Mich. 108; Harris v. or imposed upon in the transaction. Smith, 40 Mich. 453; Thorn v. Thorn, or to reform a deed for alleged fraud 51 Mich. 167; Davis v. Phillips, 85 or mistake, requires something more Mich. 198, 48 N. W. 513; Finegan v. than a bare preponderance of evi- Theisen,92Mich. 173; Smith V. Cuddy, dence." Citing Chapman v. Dnn- 96 Mich. 563; Groesbeck v. Bennett, well (Iowa, 1903), 88 N. W. 1067; 109 Mich. 65; Tiffany v. Tiffany, 110 Schrimper v. Chicago, etc. R. Co. Mich. 319. (Iowa, 1900), 83 N. W. 916. 3 Whelen v. Osgood by, 63 N. J. Eq. QiG ep;medies establishing peimaey eights. [§ -±22. accident or mistake, — fraud in the procurement of the instru- ment, or in the failure of the consideration which it is claimed supports it; accident, as where by unseen or injurious events, external to the parties, occurring after the transaction, but without negligence, mistake or misconduct of the parties, an undue and inequitable advantage is obtained by one of the parties to the instrument. Where by mutual mistake of the parties, or by mistake on the part of one and fraud upon the part of the other in taking advantage of the mistake, the instrument is executed and becomes a binding obligation, a court of equity will, in an action for that purpose, decree that the contract may be rescinded, canceled, or order its surrender or discharge. "While these actions are somewhat different in their technical meaning, the remedy appropriate in the several actions may be sought in one procedure or bill of complaint; in other words, a bill would not be considered multifarious which prayed that the complainant be allowed to rescind the contract in question, that a decree be entered declaring the con- tract canceled, or ordering the defendant to surrender the same to the complainant or discharge it. The several objects would not be inconsistent with each other. Generally, it may be said that the complainant, before he can be permitted to re- scind his contract on the ground of fraud or for other equitable reasons, must surrender and cause a complete restoration of the subject-matter of the controversy to the defendant in the case; that is to say, he must either stand upon his contract as it is or rescind it m toto, and restore or tender a restoration of all he has received thereon. Some exceptions have been al- lowed to this rule, however, and it has been held that it is only necessary to show by the bill of complaint a willingness to do equity.' Where there is a complete and adequate remedy at law the equity court will not assume jurisdiction and decree cancella- tion or rescission of the instrument. But it has been held that a grantee may have an action in equit}'^ to compel a rescission of a contract and at the same time a suit at law to recover upon the covenants of warranty contained in the deed, where it was obtained by fraudulent representations upon the part of the 1 Ludington v. Patton, 111 Wis. 208, 86 N. W. 571; Winter v. Kansas City, etc. Ry. Co., 160 Mo. 154, 61 S. W. 606. § 423.] KEMEDIES ESTABLISHING PEIMAEY EIGHTS. 647 vendor. The several jurisdictions and the importance of each is emphasized in such cases. A mere recovery upon the cove- nants of warranty would not be entirely adequate; the contract for the sale of the land should be rescinded and canceled. ^ § 423. Some cases in which the remedies are applicable. It would be diflBcult to mention all of the cases in which the remedies by rescission, cancellation, surrender or discharge are applicable, but a few of the leading examples may be of benefit. Equity will not interfere by these remedies where the contract which is the subject of the proceeding is upon its face abso- lutely void, for in such case there is no legal presumption of the liability of the parties, and the court will not assume that parties to the instrument will undertaiie to enforce it.^ The remedy may be invoked where certificates of stock in an incorporated company have been obtained upon the faith of a forged power of attorney;' for the cancellation of an in- strument obtained from one who is non compos mentis and totally incapable of contracting, the instrument being obtained by false and fraudulent representations;* to cancel a mortgage obtained by duress;' to cancel an insurance policy obtained through fraud and misrepresentation ; to remove a cloud from title by canceling fraudulent mortgages or deeds of convey- ance. And it has been held that an action would lie for the cancellation of a promissory note obtained by fraud, even though non-negotiable, for the reason that by delay the evi- 1 Perry v. Boyd, 126 Ala. 162, 28 So. that he has a defense. If that were 711; Lamprey V. Lamprey, 29 Minn, sufficient it is evident that every 151 12 N. W. 514. legal controversy arising upon a 2 In Town of Springport v. Savings written instrument might be drawn Bank, 75 N. Y. 397. 401, the court say: into equity by any party who appre- " The party seeking such relief must hended that an action at law might in all cases show in limine that the at some time be brought against instrument which he seeks to have him." Town of Venice v. Woodruff, canceled creates at least a prima 63 N. Y. 463; PeirsoU v. Elliott, 6 Pet. facie liability against him or inoum- (U. S.) 95. brance on his land, which he must 3 Pennsylvania, etc. Co. v. Franklin overcome by extrinsic proof, and, Ins. Co., 181 Pa. St. 40, 37 L. R. A. 780. when the instrument does not affect * Boynton v. Reese, 113 Ga. 354, 37 the title to land, he must also show S. E. 437; Clay v. Hammond, 199 111. some special ground rendering his 370, 65 N. E. 353. defense at law an inadequate protec- ^Fry v. Piersol, 166 Mo. 429, 66 8. tion. It is not sufficient to show W. 171. 6i8 EEMEDIES ESTABLISHING PEIMAEY EIGHTS. [§§ 424, 425. dence to establish a defense to it might be lost' It must ap- pear by allegations in the bill of complaint and by the proofs adduced that to refuse cancellation or discharge of the instru- ment would result in irreparable injury to the complainant.^ But where the parties are only guilty of fraud, a court of -equity will not decree relief to either party, but will leave them where they have placed themselves.' § 424., The procedure. — The procedure in this class of cases is by bill in equity, which, following the general rules in equity pleading, must by its allegations make out a case cognizable by the court; setting up the fraud, accident or mistake upon which the proceeding is founded with such certainty as is re- quired by the rules of pleading. If fraud is relied upon, set- ting forth fully all of the particulars which constitute the fraud, that the opposite party may have notice of the facts relied upon. The plaintiff, in order to sustain his action, must do or offer to do equitj'^, and this must appear in the bill of com- plaint.^ This is upon the theory that the instrument ought never to have been made, and that the parties, so far as pos- sible, should be placed in the same situation they were in prior to the transaction. For this reason, too, the court will not af- ford relief where the complainant has been guilty of laches and the conditions are so changed that the defendant is de- prived of proof, and the possibility of returning the property or its proceeds does not exist.^ The defenses are by demurrer, plea or answer. § 425. To remove cloud from title — Nature of remedy. An action to remove cloud from title belongs to this class of remedies. It is sometimes called a bill of peace, or a bill to quiet title. A cloud upon title is a claim of some title or in- cumbrance by another through a deed, mortgage, tax deed or evidence of title which is apparently valid and thus affects the title of the owner to the property in question; something that shows Si 2>rima facie right in another but may be proven to be 1 Merrit v. Elirman, 116 Ala. 278, S3 2 County, etc. v. Bridge Co. (Idaho, So. 514. Where the fraud was mis- 1896), 47 Pao. 818, 36 L. R. A. 367. representations as to the nature and ^ Edgell v. Smith, 50 W. Va. 349, value of the consideration made by 40 S. E. 402. one occupying a fiduciary relation. *Bell v. Felt, 102 III. App. 218. Robinson v. Sharp, 201 111. 86, 66 N. •'' Lutjen v. Lutjen, 63 N. J. Eq. 391, E. 299. 53 Atl. 625. § 425. j REMEDIES ESTABLISHING PRIMARY EIGHTS. 649 invalid.^ Formerly the remedy to remove a cloud from title could only be sustained by the owner of the property in pos- session; but by statute in the different states the jurisdiction has been enlarged in this respect, and generally it is allowable by one out of possession to bring his action to quiet title or re- move a cloud from it. It is the remedy by which a void or pretended title may be set aside and the legal title cleared of seeming defects. If the claimed title or incumbrance has no semblance of legality — if upon its face it is clearly and unquestionably void so that snny one may clearly discern that it is illegal upon inspection, it will not be considered a cloud upon the title, and a court of equity will not entertain a bill to remove it. There must be an apparently good title in de- fendant; a 2:»'{ma facie defect in the title of the complainant.'- But the danger of beclouding the title must be more than 1 In Lick V. Ray, 43 Cal. 83, 88, it is said: " It is settled by a long line of decisions in this court that if the title against which relief is prayed be of such a character as, that, if as- serted by action and put in evidence, it would drive the other party to the production of his own title in order to establish a defense, it constitutes a cloud which the latter has the right to call upon the court to re- move and dissipate. If, on the other hand, the title be void on its face; if it be a nullity — a mere felo de se, when produced, so that an action based upon it will 'fall of its own weight,' as has been said, then the title of the party plaintiff is not necessarily clouded thereby, and he ought, if he would maintain an ac tion to have it removed, show some special circumstances which entitle him, in the view of a court of equity, to a decree for that purpose." Bis- sell v. Kellogg, 60 Barb. 617; Sanxay V. Hunger, 43 Ind. 44 In Chapman V. City of Hartford, 21 Coiln. 488, 495, the court say : " And it is true that in some cases courts of equity have refused to interfere; but this, we believe, has been where interfer- ence has been seen to be entirely un- necessary, and the application, in its tendency or purpose, vexatious and expensive, as %vhere the instrument sought to be delivered up and can- celed was connected with nothing else, and affected nothing else; as a note or bond without a stamp, or illegal on its face, and thus harm- less in whatever place it might be." 2 Detroit v. Martin, 34 Mich. 170, 173. In Eaton v. Trowbridge, 38 Mich. 454, 457, it was said: "The questions involved are such that, if the defense at law should succeed, the title of complainant of record would still be imperfect and open to disputes; and where that is the case, it is manifest that the remedy at law cannot be fully adequate. The purpose of this suit is not only to de- termine the title, but to remove clouds upon it; and there is a cloud so long as by the record it is at least questionable if the title of defend- ants is not prima facie better than complainant's." Briggs v. Johnson, 71 Me. 235; Griswold v. Fuller, 33 Mich. 268; Cohen; v. Sharp, 44 Cal. 29; Meloy v. Dougherty, 16 Wis. 387. As to cases involving tax titles see 650 EEMEDIES ESTABLISHING PEIMART EIGHTS. [§ 426. merely speculative to sustain an action to quiet title.' It has been held that a sale upon a decree or judgment which is void, or a foreclosure on an illegal mortgage, will be enjoined when it is necessary to prevent such sale, upon the ground that a deed upon such a sale or such foreclosure would be a cloud upon the legal title.^ §426. Adequate remedy at law. — If there is a complete and adequate remedy at law the complainant cannot sustain a bill to quiet title. The remedy in equity to remove cloud from title is not for the purpose of establishing title in the complainant, but rather to clear the title he has from unlawful or illegal incumbrance. Indeed, the record title may be in the defendant, who by an action at law by ejectment is seeking to obtain possession from the complainant. The suit at law would be decided in favor of the one having the record or legal title to the lands, and complainant would be ousted although he has an equitable title which is in the particular case paramount to the legal title. In Dale v. Turner,^ where complainant sought to enjoin the defendant from prosecuting his action of ejectment based upon a title derived by patent from the state for the reason that he, complainant, held a title based upon a certificate of purchase from the United States, the court said, after discussing several statutes : " Under these circumstances, may complainant come into Cooley on Taxation, 543 and cases Allen, 85 111. App. 23, 56 N. E. 403; cited. But when a cloud was ere- Rea v. Longstreet, 54 Ala.291; DuU's ated by a void assessment and the de- Appeal, 113 Pa. St. 510: Phillips v. feot does not appear upon the face Pitts, 78 111. 72; Townshend v. Will- of the record and could only be iams, 5 N. Y. Super. Ct. 394. A suit to shown by evidence aliunde which remove cloud will be upheld when might be lost, it was held that equity theclaimappearsto be valid upon the would assume- jurisdiction. Ogden face of the record, and the defect in V. Armstrong, 168 U. S. 224. Tax which can only be made to appear by deed as cloud upon title. Rich v. extrinsic evidence. Crooke v. An- Braxton, 158 U. S. 375; Gage v. Will- drews, 40 N. Y. 547. iams, 119 ID. 563; Miller v. Cook, i Torrent v. Booming Co, 23 Mich. 135 111. 190, 10 L. R. A. 293; Torrent 354; Munson v. Munson, 28 Conn. 582; v. Booming Co., 22 Mich. 354; Davis Farnham v. Campbell, 34 N. Y. 480. V. City of Boston, 129 Mass. 377; Tait 2 George v. Nowlan, 38 Or. 537, 64 v. American, etc. Co., 133 Ala. 193, 31 Pac. 1. So. 623; Kittles v. Williams, 64 S. C. 3 34 Mich. 405, 417; Pioneer Land 229, 41 S. E. 975; Post v. Campbell, Co. v. Maddux, 109 CaL 633. 110 Wis. 378, 85 N. W. 1032; Shaw v- §420.] REMEDIES ESTABLISHING PEIilAEY EIGHTS. 651 equity to assert his right and obtain protection against the hostile claim of the defendants ? The case establishes these propositions: ^' First. That complainant holds a complete equitable title, and which antedates the origin of any claim by defendants. "•'Second. That actual possession under such title is in him, and was so when defendant's claim arose, and has so remained. " Third. That prior to this suit, and at its commencement, the defendants set up a claim to the land in opposition to the title claimed by complainant." A decree was entered perpetually enjoining the ejectment suit and requiring the defendant to release to complainant all claims to the lands depending on the state patent; the decree in the meantime to stand in the place of such release. And where an injunction was sought to restrain the foreclosure of a trust deed which was barred by the statute of limitations, it was claimed that the owner could avail himself of the defense in an action of ejectment brought by the purchaser at the trus- tee's sale ; the court held that he could do this, but that it would not be a complete answer to the relief asked. " The relief is demanded on the ground that the sale will cast a cloud on the plaintiff's title. The jurisdiction and power of a court of equity to prevent a cloud being cast upon the title to real estate is as well established as is the jurisdiction and power to remove one already created. . . . Where the facts are such that a court would remove the cloud when cast, it seems clear the court should interfere by injunction to prevent its being cast."^ The remedy no doubt had its origin in the inability of the owner in possession to try the illegality of the claimed title or incum- brance which constituted the cloud. He in possession could not bring ejectment. The holder of the title constituting the cloud might defer bringing an action in ejectment until all means of defense had vanished and then obtain a judgment; because of this equity assumed jurisdiction and permitted a bill to be filed to remove the cloud and quiet the title. This remedy is 1 Gardner v. Terry, 99 Mo. 523, 7 L. land is unoccupied. GrandRapids,etc. R. A. 67, 68; Loring v. Hildreth, 170 R. Co, v. Sparrow,! L.R. A. 480; Louns- Mass. 338, 40 L. R. A. 137. As to bury v. Purdy, 18 N. Y. 515; McPike United States court taking jurisdic- v. Penn, 51 Mo. 63; Pettit v. Sliep- tion and extending it to cases where herd, 5 Paige Ch. (N. Y.) 493. 652 EEMEDIES ESTABLISHING PBIMAET EIGHTS. [§ 427'. not given to parties who have a legal and adequate remedy at law. In Stockton v. Williams'^ it was said : " The object of the stat- ute seems to be to enable a person in possession of real estate, and having a title thereto, to remove all doubts in regard to his title arising from the claims of third persons, who are taking no steps to test the validity of their claim, either at law or in equity, and who, by their refusal or neglect to institute pro- ceedings for that purpose, keep the party in possession in a state of suspense. This is the extent, I think, to which this court should go under the statute. A different construction of the act would leave it optional with every defendant in ejectment to litigate his title either at law or in this court, and, by filing his bill here, to take from his adversary the right to have the facts of the case passed upon by a jury of the country. Such, therefore, it seems to me, is the construction that should be given to the statute, where the title of the defendant in ejectment is a legal and not an equitable title, and there is nothing to prevent his establishing it as fully at law as in a court of equity. But the defendants come too late with their objection. They should have demurred to the bill, or insisted on the want of jurisdiction in their answer, as a bar to the court's taking cognizance of the suit. Where the defendant instead of demurring submits to answer, and does not insist on the objection in his answer as a bar to the jurisdiction of the court,' and thereby put the complainant on his guard as to further proceedings, and proofs are taken in the cause, it is too late to raise the objection on the final hearing." § 427. Possession by plaintiff. — Possession of the lands by the plaintiff was formerly, and in some jurisdictions is now, a jurisdictional requisite to the filing of a bill to quiet title. This seems to rest upon the theory that the plaintiff in posses- sion can maintain no action at law to test his title. And it has been said that " the holder of a legal title not in actual possession cannot, as a general rule, maintain a bill to quiet his title and to compel a relinquishment of adverse claims. The reason why the party out of possession cannot maintain such a bill is that he may bring an action at law to test his title, iWalk. Ch. (Mich.) 120, 126; Stetson v. Cook, 39 Mich. 750, 755. § 428.] REMEDIES ESTABLISHING PEIMAEY EIGHTS. 653 which ordinarily the party in possession cannot do. Such a bill is only entertained by a court of equity because the party is not in a position to force the holder, or one claiming to de- fend under the adverse title, into a court of law to contest its validity. And this, as a general rule, is the test to which a court of equity will look to determine whether the necessity of the case requires its interference." ' This possession must be a quiet, peaceable possession. And so where one has been forcibly ejected from the premises, his bill to quiet title can- not be defeated upon the ground that he is not in possession or that he has an adequate remedj^ at law. ISTor can one who has taken forcible possession sustain his action to quiet title where possession is a necessary requisite.^ But where the land is wild and unoccupied, the plaintiff may sustain a bill to quiet the title or to remove a cloud from it.' But in many of the states the action is permitted by statute to be brought by a person either in or out of possession.^ Whether these statutes are binding upon the federal courts is not entirely settled by the authorities. § 4c28. The pleadings. — The bill of complaint must set out clearly and explicitly the title of the plaintiff, exhibiting fully his right to sustain the action. If in a state where possession by the plaintiff is a jurisdictional requisite, then his peaceable and quiet possession must be alleged. It is not necessary to set out in the bill the deed or evidence of title under which the plaintiff claims, nor is it necessary that he should trace his title from any particular source. It is sufficient to allege that he is the owner of the property and in possession of it. And in states where he is permitted to file a bill based upon equi- table title, he should set forth fully and particularly the equi- 1 Alton, etc. Ins. Co. v. Buokmaster, berry v. West Virginia, etc. R. Co., 44 13 111. 201, 205; Smith v. McConnell, W. Va. 260. 17 111. 135. 4 Hatch v. St. Joseph, 68 Mich. 220. 2Bigelow V. Sandford, 98 Mich. Permission by statute to bring the g57. action by one out of possession ob- 3 Jenkins v. Bacon, 30 Mich. 154; tains in Arizona, Arkansas, Cali- Tabor v. Cook, 15 Mich. 322; Coleman fornia, Colorado, Idaho, Illinois, Indi- V. San Rafael, etc. Co., 49 Ca). 517; ana, Iowa, Michigan, Minnesota, Mis- Robertson V. Wheeler, 162 111. 566; sissippi, Missouri, Nebraska, North Donohue v. Ladd, 31 Minn. 244; Hoi- Carolina, South Carolina, Texas, land V. Challen, 110 U. S. 15; Car- Washington and Wisconsin. ■654 EEMEDIES ESTABLISHING PEIMAEY EIGHTS. [§ 428. ties upon which the title is based, that the court may determine its sufficiency, and that the defendant may have notice of the plaintiff's claim. The claim asserted by the defendant ad- verse to the plaintiff must also be set out particularly, so that it may be determined whether it is a claim or title apparently good upoa its face, or such a claim or such a title as the plaint- iff will be allowed to attaclc in a court of equity. The prop- erty in question should be particularly and certainly described so that it can be identified. The injury to the plaintiff because of defendant's claim and the cloud upon his title must be stated in the bill of complaint; also the facts which show that the claim of the defendant constitutes such a cloud. The bill generally contains an allegation or averment that the plaint- iff has no adequate remedy at law, but this is not necessary, as the stating part of the bill should show that fact. There should be a special prayer for relief that the cloud upon the plaintiff's title be removed; that the claimed title of the de- fendant be adjudged null and void. The bill should also con- tain a prayer for general relief, and if defendant has com- menced a suit at law based upon his claimed title, complainant should pray for and obtain a temporary writ of injunction enjoining the prosecution of such legal action, which he should ask be made perpetual at the final hearing.^ The answer of the defendant may traverse all the material allegations in the bill of complaint. And where the answer 1 Stoddard v. Burge, 53 Cal. 394; ruled the demurrer, holding that the Smith V. Matthews, 81 Cal. 120; grounds were untenable and that Stratton v. Land, etc. Co., 86 Cal. the allegation that the plaintifif was 353; Ludlow v. Ludlow, 109 Ind. 199; seized in fee simple was a sufficient Carger V. Fee, 140 Ind. 572; Crooke allegation that he has the possession V. Andrews, 40 N. Y. 547; Parleys as well as the title. Herrick v. Park, etc. Mining Co. v. Kerr, 130 U. Churchill, 35 Minn. 318; Pittsburgh, S. 256. In Gage v. Kaufman, 138 U. etc. Ry. Co. v. O'Brien, 143 Ind. 318; S. 471, 472, the sufficiency of the alls- Minighoff v. Sayre, 41 N. J. Eq. 113. gallons in the bill arose upon de- As to alleging equitable title. Gris- murrer for the reason that it did not som v. Moore, 106 Ind. 396. It should show who was in possession of the be alleged that the defendant asserts lands, or that the defendant was not a claim. Cleland v. Casgrain,93Mich. in possession, or that the plaintiff 139; Stockton v. Williams, Walk. Ch. had not an adequate remedy at law (Mich.) 120; Bisel v. Tucker, 121 Ind. because the plaintiff did not offer to 249; Strump v. Reger, 93 Ind. 286; do equity and to repay the tax paid Sims v. Smith, 99 Ind. 469; Club v. by the defendant. The court over- Clough, 146 Ind. 93. § 428.] REMEDIES ESTABLISHING PEIMAEY EIGHTS. 655 denied that the plstintiff was at any time the owner of any right, title or interest in or to the premises, or any part thereof, and alleged that certain of the defendants owned and still owned the legal title to all the premises under certain trusts which were not described, but plaintiff was alleged to have no connection with said trusts in any way, it was held that the answer was sufficient.' The defendant may by cross- bill allege possession in himself and may seek to establish and quiet his own title, setting forth by proper and necessary alle- gations his title and the defects in the plaintiff's title, which he claims is a cloud upon his own, and thus confer jurisdiction upon the court to determine the question of title between the parties, and by decree to grant relief to the one entitled to the same ; although the fact that the plaintiff was not in possession is sufficient to defeat the jurisdiction upon the original bill.^ And if the cross-bill or petition is not answered the default of the complainant may be entered and the cross-bill taken as confessed.' iButterfleld V. Graves, 138 Cal. 155, 2 ganders v. Village of Riverside, 71 Pao. 510; Hackworth v. Layne 118 Fed. 730. resorted to for the satisfaction of Am. Dec. 174. § 4S6.] REMEDIES FOR ENFOECBMENT OF LIENS, ETC. 763 erally a sufficient protection. If money has been paid into court, the order of the court distributing it will usually afford protection to all lien holders entitled to the equitable relief.^ III. Ceeditoes' Bills and Bills in Aid of Execdtiox. § 486. Creditors" suits — Kinds and object of.— Equity aids the creditor in the collection of his debt only in cases where there is no legal remedy, or where the legal remedy has been exhausted. The equity court is not a tribunal for the collection of debts, but it will protect and enforce the equi- table rights of a creditor by preventing the fraudulent appro- priation of the property of his debtor so as to delay and hinder its legal application to the discharge of his just and lawful debts by following his personal assets, his money, choses in action, effects, or property when fraudulently conveyed, in- cumbered, covered or possessed by another so that legal process cannot reach them. Creditors' equitable actions had their origin in the necessity for relief which the couiraon law, because of its narrowness, could not afford. Judgments at law could be obtained, but where fraudulent hinderances and obstructions defeated the writ of execution, the amount ad- judged due and payable could not be collected because the writ of execution is so con-fined to legal interests that equitable interests could not be reached by it; and so the fraudulent evasion of the debtor, if no other remedy existed, would suc- ceed. These equitable remedies, instituted by creditors' bills and bills in aid of execution, came into use, therefore, to aid the law in enforcing the collection of its judgments by remov- ing these fraudulent obstructions and subjecting the property rights, interests and effects of the debtor to the payment of his debts.''' iCole V. Malcolm, 66 N. Y. 363; of debts; and yet they afford their Frost V. Yonkers Sav. Bank, 70 N. Y. aid to enable creditors to obtain pay- 553, 36 Am. Rep. 627; Hudkins v. ment, when their legal remedies have Ward, 30 W. Va. 204, 8 Am. St. Rep. proved to be inadequate. It is only 22; Gotzian v. Shakman, 89 Wis. 52, by theexhibitionofsuchfactsasshow 46 Am. St. Rep. 830; Robson's Appeal^ that these have been exhausted that 117 Pa. St. 628. their jurisdiction attaches. Hence 2 In Webster v. Clark, 35 Me. 313, it is that when an attempt is made 314, it was said: " Courts of equity by a process in equity to reach equi- are not tribunals for the collection table interests, choses in action, or '764 KEMEDIES FOE ENFOKCEIIENT OF LIENS, ETC. [§ 486. It has been held to be an undeniable proposition that " the jurisdiction of a court of equity will be exercised when the principles of law by which the ordinary courts are guided give a right; but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose. Hence a system of jurisprudence has grown up adapted to afford a remedy for injuries not cog- nizable in other courts." ' These actions are of two kinds: (1) Judgment creditors' bills; and (2) bills in aid of execution.^ While the object is quite the same, the facts upon which these actions depend and the procedure are quite different. Fraud and discovery, however, as well as a failure of a complete and adequate remedy at law, is the basis of their equitable jurisdiction; the court pro- ceeding upon the theory that the property and effects of the debtor, which are fraudulently held by another to protect them from the writ of execution, are held in trust for the benefit of the debtor's creditors; and because fraud and trust are peculiarly of chancery jurisdiction its powers ought to be so exercised that no subtle or cunning will be able to prevent the detection of the fraud or cause the failure of justice.' Judgment creditors' bills are invoked to subject the personal assets, choses in action, moneys, property or effects of a debtor fraudulently assigned or concealed to protect them from levy ■of execution to the payment of his debts, while the bill in aid of execution is filed to aid and legalize the lien of a judgment or an execution levied upon property fraudulently conveyed by the avails of property fraudulently ing that the court had authority to conveyed, the bill should state that compel a trustee of a debtor fraud- judgment has been obtained, and ulently holding choses in action, that execution has been issued, and money or stock, to protect it from that it has been returned by an execution, to pay it over to the cred- officer without satisfaction." This itor, andcandirectatransferand sale was also adjudged to be the early of the property for the benefit of the English rule and well settled. The creditor. language of the court was also ap- ' Hadden v. Spader, 20 Johns. Eep. proved and quoted in Taylor v. (N. Y.) 563. Bowker, 111 U. S. 110, 115. In a 2 Williams v. Hubbard, Walk. Ch. very early case in New York (Hadden (Mich.) 28, 39; State Bank v. Belk V. Spader, 20 Johns. Rep. 554), the (Neb., 1903), 94 N. W. 617. court discussed somewhat the origin ' 1 Madd. Ch. 8. and necessity of such actions, hold- § 487.] REMEDIES FOE ENFOECEMENT OF LIENS, ETC. 765- the debtor to avoid the judgment and execution of his creditors, and subject it to the payment of the judgment.' § 487. (1) Judgment creditors' bills. — The general rule is that a mere creditor at large who has not obtained a judgment at law upon his claim cannot support a creditor's bill.^ The bill is filed to reach property, or the avails of it, which cannot be reached by an execution at law, and convert and apply it to the payment of the judgment debt. The property or inter- ests of the judgment debtor which may be reached by this proceeding are varied and numerous, consisting of every kind and nature, whether arising from real or personal property. But generally the interests which are the subject of the pro- ceeding are those which are fraudulently held or possessed by another, the legal title of which is not, and in some cases never has been, in the name of the debtor, but which has been pur- chased and the consideration paid with his funds, or money, or property, and held by another for the purpose of avoiding levy and sale upon execution; or by assignment or transfer with the intention of avoiding and hindering creditors. As where the judgment debtor purchased lands and had them conveyed to a third person, equity will determine that the lands are held in trust for the creditors of the debtor, and upon a creditor's bill filed after a return of execution unsatis- fied will subject his equitable interest to the payment of his indebtedness;^ or where the debtor has an equitable interest in lands sold by him, the unpaid purchase-money being claimed by an assignee upon an assignment made after judgment to avoid creditors;* or interests in demands collected by one who holds them by an invalid or fraudulent assignment.^ By this proceeding, equitable assets, choses in action, inter- ests or property held by express trust, or assets, or interests obtained by the fraudulent sale of property, may be reached. The extent and nature of the remedy has been the subject of statutory enactment in most of the states, but the equitable jurisdiction has generally been observed. Somewhat new and available statutory remedies have been created authorizing 1 Williams v. Hubbard, Walk. Ch. < Withers v. Carter, 4 Grat. ( Va.) (Mioh.) 28. 407. 2 Jenks V. Horton, 114 Mich. 48. 5 Blood v. Marcuse, 38 Cal. 590; 'Maynard v. Hosklns, 9 Mich. 485. Dunbar v. Harrison, 18 Ohio St. 24. 766 EEMEDIES FOK ENFORCEMENT OF LIENS, ETC. [§ 488. garnishee attachment proceedings, which in many cases fur- nish an adequate remedy but do not preclude resort to the equitable remedy.' From the very nature and object of the pro- ceeding the bill is more or less a bill of discovery, and often the success of the action is largely the result of facts discovered by the answer obtained from the defendants.^ § 488. Some requisites to the filing of the bill.— It should appear by the bill and be proven at the hearing in every equity case instituted by a judgment creditor's bill that the cause pre- sented for equitable relief belongs to some of the general heads of equity jurisdiction, such as fraud, trust, accident, mistake, account, or specific performance, and if this does not appear, equity will not assume jurisdiction, even though the remedy at law has been exhausted. The strictness of this rule has in some <;ases, however, been somewhat modified by statutes; but the jurisdictional facts of a chancery cause should be found in some of the recognized heads of equitable jurisdiction and cannot rest merely in the fact that all legal remedies have been ex- hausted. And so where it appeared only that a judgment had been obtained, an execution issued and returned unsatisfied, and that there was an amount owing to the debtor defendant from another, the court refused to entertain jurisdiction of the cause and order the paj^ment of the debt to the plaintiff, holding that the court had no power to assume jurisdiction really new and extending beyond the limits of its established au- thority.^ 1 Benedict v. T. L. V. Land & Cattle an execution issued upon a judgment Co. (Neb., 1903), 93 N. W. 210; Nurse against the debtor authorized by him V. Weitz (Iowa, 1903), 95 N. W. 251. for the purpose of defrauding credit- 2 Farnham v. Campbell, 10 Paige ors, it may be reached by creditors Ch. (N. Y.) 598, where an insolvent of the debtor to satisfy their debts, debtor assigned the legacy for an in- Taylor v. Perkins, 26 Wend. (N. Y.) sufficient consideration with intent 125; Tawas, etc. Ry. Co. v. Circuit to defraud his creditors, his insolv- Judge, 44 Mich. 479; Pursel v. Arm- ency being known at the time by strong, 37 Mich. 826; Matson v. the purchaser: it was held that the Melchor, 43 Mich. 477; Muir v. creditors of the insolvent could have Hodges, 116 Fed. 912, where a wid- their debts satisfied out of the sur- ow's share of rents and profits in plus after deducting the considera- lands in which she bad right of tion actually paid; Bigelow v. Ay- dower were held liable; Fairbanks rault, 46 Barb. 148; Brewster v. v. Belknap, 135 Mass. 179; Dimond v. Power, 10 Paige, 561. In Piatt v. Rogers, 303 111. 464, 67 N. E. 968. Judson, 3 Blaokf. (Ind.) 335, it was ^ Donovan v. Finn, Hopk. Ch. (N. ield that where lands weresold upon Y.) 59, 75. The court hi its opinion :§ 488.] KBMEDIES FOE ENFOECEMENT OF LIENS, ETC. 767 The rule is universal that a creditor cannot invoke the aid ■of the equity court until he has exhausted his remedy at law; these facts, therefore, must appear in the bill of complaint and be proven at the hearing. It therefore follows that until a judgment is obtained, an execution issued and levied, and a return of the execution by the officer nulla hona, the action cannot be sustained, for if the debtor has available assets or property subject to execution, they can be levied upon and sold to satisfy the indebtedness; he has a plain and adequate rem- edy at law, and therefore cannot sustain an equity action. And so no creditor will be permitted to seek relief out of equitable interests where he can obtain it by legal process.' This doctrine is universal.- The rule is very tersely stated and its universal application mentioned by the supreme court of Ohio in an early case. The court say: "In all cases where application is made for the extraordinary interposition of a court of chancery, in granting relief the first inquiry which presents itself is, whether the complainant had plain, complete and adequate remedy at law. If he has such remedy, he must seek it through the courts at law. It is not sufficient for him to show that he is entitled to further said: "It is apparent that tion sued out on such judgment; and this case does not belong to any gen- 3d, a return of the execution un- eral head of equitable jurisdiction, satisfied in whole or in part. Unless such as frauds, trusts, accidents, these facts appear afHrinatively in mistakes, accounts or the specific the bill, the court has no jurisdic- performance of contracts. Here is tion of the case. The complainant neither fraud, nor trust, nor acoi- must show he has in good faith ex- dent, nor any other ingredient of hausted his remedy at law, without equitable jurisdiction. It is the producing a satisfaction of his debt, simple case of two debtors and two All the legislature intended, by the creditors, of whom one is both debtor statute giving jurisidiction to this and creditor; a case in which the court in this class of cases, was to rights and the remedies of the re- give the creditor a remedy in this speotive parties have hitherto been court, after he had exhausted his enforced exclusively in the courts of remedy at law, where tlie debtor had law." choses in action, or other property, ' Steward v. Stevens, Harr. Ch. which an execution could not reach, (Mich.) 169. In Smith v. Thompson, and wliich ought, in justice and Walk. Ch, (Mich.) 1, 3, it was said: equity, to be applied by him in pay- "A judgment creditor who files a ment of the judgment." bill in this court, to have his judg- ^For collection of cases from ment satisfied out of choses in courts of different states see 5 Ency. .action belonging to the debtor, must of PI. & Pr., p. 461. show, 1st. a judgment; 2d, an execu- 768 EEMEDIES FOE ENFORCEMENT OF LIENS, ETC. [§ 489- redress; he must show that he is entitled to it in the manner and in the court in which he seeks to obtain it."^ The reason of the rule requiring the creditor to first obtain a judgment at law is further found in the necessity that the claim of the creditor should be ascertained and fixed, for otherwise the debtor and those concerned in the transaction might be in- volved in oppressive litigation in defending their property against the actions of persons who in the end might be found to have no valid claim. § 489. The judgment — The execution and return. — The general rule is that the judgment upon which the action is based must be of a court of general jurisdiction, for the rea- son, among others, that the execution issued upon it can be levied upon all or any kind of property the defendant may have, real estate as well as personalty; for if the defendant has property from Avhich the judgment can be satisfied, either real or personal, the plaintiff has a complete remedy at law; and until he has exhausted such, remedy he will not be per- mitted to come into a court of chancery with a judgment cred- itor's bill. The effort to collect by execution must be made, and until it is returned nulla hona the action cannot be sus- tained. In some jurisdictions it has been held that the judg- ment of a justice court would be sufficient upon which to sus- tain the action, but these holdings are more or less influenced by statutes.- 1 Bustard V. Dabney, Adm'r, 4 Ohio, have held the judgment creditor in 68, 71. In Thayer v. Swift, Harr. every adjudged case, before admin- Ch. (Mich.) 430, the court say: "The istering this harsh remedy of de- foundation of the jurisdiction of this priving the debtor absolutely of all class of cases is, that the judgment control over every part and portion, creditor shall have fully exhausted of his property, to bring himself his remedy at law. It has been re- strictly and rigidly within this rule, peatedly held that the court will not No case can be found where this retain a bill as a judgment creditor's remedy has been afforded without a bill merely, filed before the return strict compliance with all the forms, day of the execution. In the ab- What is the reason of the rule? It sence of any authority or dicta upon is that a judgment debtor shall not the subject, I should have as little be harassed with a suit in chancery doubt upon a case where the execu- until the creditor has availed him- tion was actually returned before self of all his common-law rights to the return day, although the bill was collect his judgment." Brown v. not filed until after the return day Barker, 74 N. Y. S. 43. had elapsed. Courts of chancery ^Lore v. Getsinger, 7 N. J. Eq. 191,. § iS9.J REMEDIES FOK ENFOECEMENT OF LIENS, ETC. 769 In those jurisdictions where the basis of the procedure de- pends upon the fact that the creditor has exhausted his remedy at law, it is difficult to see how a judgment of a justice court, upon which an execution leviable upon the real estate of the debtor cannot be obtained, would support a creditor's bill, for it is evident if there is any jDroperty that can be reached by execution, either real or personal, that will satisfy the judg- ment, the bill cannot be sustained. A justice judgment might be the basis of the action if a transcript of the judgment were filed with the court of general jurisdiction and an execution issued from that court, for upon such an execution real estate could be reached. The mode of obtaining executions from courts of general jurisdiction upon judgments of inferior courts is en- tirely statutory.! The judgment must have been obtained and proceedings had to exbaust the legal remedy before the bill is filed; that where tlie action was based upon three justice court judgments ob- tained by three several complain- ants, the sum of which amounted to §103; the court held that it would entertain the bill, hut it seems in that case that there was a statute in existence whicli accounted for the decision. In Ballentine v. Beall, 3 Scam. (111.) 203, and in Steere v. Hoagland, 39 111. 264, and later in Thompson v. Yates, 61 111. App. 263, the court of Illinois held that a jus- tice court judgment would support the bill when it was not required to create a lien upon real estate. 1 In Dix V. Briggs, 9 Paige Ch. (N. Y.) 595, 596, where the action was based upon a judgment and execution of a justice court, the court say: " It is a fatal objection to this suit, however, that the complainants have not exhausted their remedies at law against the property of th6 defend- ant. The executions which were is- sued by the justice and directed to a constable were against his personal property merely. And to complete the remedy, the complainants should have docketed their several judg- 49 ments in the county clerk's office, and have taken out executions there, so as to reach the real as well as the personal property of the defendant, if he had any in the county. The statute does not authorize the filing of a creditor's bill upon the return of an execution unsatisfied, which execution has been issued only against a part of the defendant's property, where the complainants might have taken out their execu- tions against the whole, if they had filed the transcripts of their judg- ments with the county clerk." Pat- terson V. Lynde, 113 111. 196; Ballin V. Lace Importing Co., 78 Wis. 404, 10 L. R. A. 743; Earle v. Circuit Judge, 93 Mich. 28.5. In Vanderpool V. Notley, 71 Mich. 433, 39 N. W. 574, and Brock v. Rich, 76 Mich. 644, it was held that a judgment creditor's bill to reach non-leviable assets can- not be filed until judgment obtained and an execution issued returned unsatisfied; that a simple demand of payment is not enough to support such a bill. National Bank v. Dwight, 83 Mich. 189. 770 REMEDIES FOE ENFOECEMENT OF LIENS, ETC. [§ 4:89. is, the judgment must be obtained and the execution must have been issued and returned " no goods found," for this action is necessary in order to exhaust the remedy at law ; and until the remedy at law has been exhausted the action cannot be commenced. These facts must appear by the records of the court and the return of the officer. It has been said that "a court of equity exercises its jurisdiction in favor of a judg- ment creditor only when the remedy afforded him at law is ineffectual to reach the property of the debtor, or the enforce- ment of the legal remedy is obstructed by some incumbrance upon the debtor's property, or some fraudulent transfer of it. In the first case the court, when its aid is invoked, looks only to the execution and the return of the officer to whom the ex- ecution was directed. The execution shows that the remedy afforded at law has been pursued, and, of course, is the highest evidence of the fact. The return shows whether the remedy has proved effectual or not, and, from the embarrassments which would attend any other rule, the return is held conclu- sive. The court will not entertain inquiries as to the diligence of the officer in endeavoring to find property upon which to levy. If the return be false, the law furnishes to the injured party ample remedy."' The remedy at law cannot be said to have been exhausted until the execution has run its entire time. And so it has been held that a return of the execution unsatisfied before the expi- ration of the last day, namely, the return day, would not be sufficient to support the bill, for the reason that the judgment 1 Jones V. Green, 68 U. S. (1 Wall.) Feohheimer v. Hollander, 17 D. C. 330. The court further say: "In 512,. 1 L. R. A. 368, where it is held the second case the equitable relief that a return nulla bona is conolu- sought rests upon the fact that the sive evidence that the debtor has execution has issued and a specific no other property; M'Bermutt v. lien has been acquired upon the Strong, 4 Johns. Ch. (N. Y.) 688; property of the debtor by its levy, Beck v. Burdett, 1 Paige Ch. (N. Y.) but that the obstruction interposed 306; Halbert v. Grant, 4 T. B. Mon. prevents a sale of the property at a (Ky.) 581; Powell v. Howell, 63 N. C. fair valuation. It is to remove the 283; Lawton v. Levy, 2 Edw. Ch. obstruction, and thus enable the 200; Pacific Bank v. Robinson, 57 creditor to obtain a full price for the Cal. 520, 40 Am. Rep. 124; and see property, that the suit is brought." note, Howell v. Cooper, 37 Barb. The facts differentiating the two (N. Y.) 586. actions are discussed, post, § 491; § 489. j EEMEDIES FOE ENFORCEMENT OF LIENS, ETC. 771 debtor is entitled to the full time or life of the execution within which to pay the indebtedness, and the officer is bound to con- tinue his search for the property to satisfy it until the execu- tion is returnable.! 1 Thayer v. Swift, Harr. Ch. (Mich.) 430; Vanderpool v. Notley, 71 Mich. 423, 438, 39 N. W. 574. In Hughs v. Link Belt Machine Co., 93 111. App. 333, 63 N. E. 186, it was held that the reason for requiring a judgment issu- ing and returning execution as a foundation for the bill is to show that acourt of law is incompetent to reach the property of the defendant, and when the return of the officer is for some other reason than his inability to find property on which to levy, such return will be insufBcient. Moore v. Omaha Life Ins. Co., 63 Neb. 497, S7 N. W. 321; Isliam v. Sien- knecht (Tenn. Ch., 1900), 59 S. W. 779. See cases cited ante, § 38", subd. 1, note 3. Krolib v. Root, 63 Mich. 563; Jenks V. Horton, 114 Mich. 48; McCoy V. Connecticut Fire Ins. Co., 87 Mo. App. 73. But in some jurisdictions it has been held that where the sheriff has taken all proper steps to make the execution from the property of the defendant, has made demands without result and has been unable to find property to levy upon, be may return the execution before the time of its expiration, and a creditor's bill will lie although the return was requested by the attorney for the creditor. Howe v. Babcock, 72 III, App. 68; Clark v. Coal, etc. Co., 6 App. D. C. 437. In Suydam v. North- western Ins. Co., 51 Pa. St. 394, 398, it was said: "It is necessar}- to show that the complainants are remediless at law. It is quite possible that a judgment debtor be insolvent, and yet an execution against him may re- sult in enforcing the payment of the single debt in judgment. The ordi- nary meaning of the term 'insolv- ency ' is the state of a person who has not property suffi oient for the full pay- ment of his debts. tJnder the English bankrupt laws a trader is in insolv- ent circumstances who is not in a condition to pay his debts in the usual and ordinary course of trade and business. Shore v. Lucas, 3 Dowl. & Ry. 218. And such is the com- mon understanding of the term 'in- solvent.' Biddecomb v. Bond, 4 Ad. & E. 333. A general averment of in- solvency may therefore be made truthfully against a corporation de- fendant, while a judgment creditor complainant has a speedy and ade- quate remedy at law for the collec- tion of the debt. Hence it has be- come an established rule that when a judgment creditor seeks the aid of a court of equity to enforce the pay- ment of his judgment, he must aver that a,fi.fa. has been issued and that it has been returned unproductive. And the rule is not confined in its operation to bills of discovery, as is apparent from its reason. That it is a settled rule all the authorities agree. One of the earlier is Angle v. Draper, 1 Vern. Cas. 371. There the defend- ant, who had the goods in his hands that the complainant sought to have applied to the payment of his judg- ment against the other defendant, seemed to have obtained them in a fraudulent manner under a pretense of a debt due himself. Yet his de- murrer was allowed because the bill did not allege that an execution had been taken out. In Hendricks v. Robinson, 2 Johns. Ch. 283, the chan- cellor, while asserting that the court would lend its aid to enforce a judg- ment at law by compelling discovery and account either as against the debtor or as against any third person Y72 EEMEDIES FOB ENFOECEMENT OF LIENS, ETC. [§ 489. If the judgment against the debtor is a foreign one. The re- quirement that the creditor must exhaust his legal remedy is determinative as to whether a foreign judgment is sufficient ta support a creditor's bill. The creditor who has^ obtained a judgment and issued an execution in another state or foreign country cannot be said to have exhausted his remedy in the state where he seeks to question the disposition of the debtor's property; such a judgment is not a lien on the property of the debtor in that state. The foreign judgment may afford evi- dence for the obtaining of a judgment in the jurisdiction asked to entertain the bill of complaint, and if such a judgment is ob- tained and an execution issued, property may be levied upon and the judgment satisfied. While this opportunity remains, while there is a probability or even possibility of thus satisfy- ing the claim, the court of equity will not interfere. The plaintiff in such case would stand before the court as a mere creditor at large, for the judgment obtained in the foreign court would not be recognized in the domestic court. The rule is very clearly stated in National Tube Works Co. V. Ballon} The court say : " Where it is sought by equitable who may have possessed himself of court of chancery, to obtain satis- the debtor's property and placed it faction of his judgment against the beyond the reach of the execution at defendant, out of property not liable law, declared that the preliminary to be levied upon by execution, he step required is that the judgment must show not only an execution- ci-editor should have made an exper- issued, but returned 'nulla bona,' iment at law by actually suing out and that no state of facts will ex- an execution. It need hardly be said cuse such return. Reference may that if this is an indispensable pre- also be made to Beck v. Burdell, 1 liminary to equitable interference, Paige, 308. These cases and a mul- it must be averred in the bilL Erin- titude of others that are at hand and kerhoff v. Brown. 4 Johns. Ch. 671, that might be cited establish th& asserts the same doctrine. In this rule that a court of equity will not case most of the English decisions entertain a bill to enable a judg- were reviewed, and it was said the ment creditor to obtain payment of later ones are peculiarly forcible, the debt, unless the bill show, by a since they require a previous execu- return of nulla bona to an execu- tion at law, even in cases in which tion issued on the judgment, that the creditor is pursuing a mere right all remedy at law has been ex- in equity, not tangible at law, or hausted." vendible under a Ji. /a. In McEIwain 1146 U. S. 517, '523; Buchanan, etc. v. Willis, Yardly et al., 9 Wend. 548, v. Marsh, 17 Iowa, 491; Crim v. it was decided that to entitle a judg- Walker, 79 Mo. 335; Davis v. Dean, ment creditor at law to the aid of a 26 N. J. Eq. 436; Patterson v. Lynde,. § 490.] EEMKDIES FOE ENFORCEMENT OF LIENS, ETC. 773 process to reach equitable interests ol" a debtor, the bill, unless otherwise provided by statute, must set forth a judgment in the jurisdiction where the suit in equity is brought, the issuing of an execution thereon and its return unsatisfied, or must make allegations showing that it is impossible to obtain such a judgment in any court within such jurisuiotion." When judgments of federal courts sufficient in state courts and of his debt, while 1 In Sage v. Railway Co., 125 U. S. 361, 376, the language of the court might at first blush be construed as holding the issuing of an execution unnecessary, but it will be noticed that that case rests upon other grounds peculiar to itself, and can scarcely be classed as one holding adversely to the rule stated in the text. In that case no question was raised that there was no execution issued; on the contrary, it was con- ceded by the parties that it was un- necessary, and the bill filed by the complainant was for the purpose of obtaining a receiver and in reality to avoid a sale of the property. In City of New Orleans v. Fisher, 34 C. C. A. 15, where the bill sought to reach an amount due from the city of New Orleans to its school board, which could only be correctly ascer- tained by an accounting, it was held that there was no adequate remedy at law and equity would take juris- diction. 2 In Bchofield v. Coal, etc. Co., 34 C. C. A. 334, 93 Fed. 269, it was held that where a judgment, when ob- tained, becomes a lien upon the debtor's property, there need be no levy of an execution. In Scott v. Neely, 140 U. S. 106, Mr. Justice Field used the following language: " In all cases where a court of equity interferes to aid the enforcement of a remedy at law, there must be an acknowledged debt, or one estab- lished by a judgment rendered, ac- companied by a right to the appro- priation of the propei'ty of the debtor for its payment, or, to speak with greater accuracy, there must be, in addition to such acknowledged or established debt, an interest in the property or a lien thereon created by contract or by some distinct legal proceeding." In Huntington V. Jones, 72 Conn. 45, the action was an action of debt, where a count,, added in the nature of a creditor's bill, seems to be allowable under the practice in that state. Vail v. Ham- mond, 60 Conn. 374. 778 REMEDIES FOR ENFORCEMENT OF LIENS, ETC. [§ 492. ([uia timet is based upon the theory that the complainant owns the property and has the title to it. In the one case it is nec- essary to issue and levy an execution upon the property unless the judgment alone creates a lien, while in the latter the pro- ceeding is upon the title claimed to be already in the complain- ant.' And so upon a bill in aid of execution the property levied upon should not be sold before the bill is filed.^ § 492. Sufficiency of lien by attachment. — The authorities are by no means harmonious as to whether a lien by attach- ment will support a creditor's bill. It has been said that a de- cision either way could be well fortified by authority.' So generally is the action and procedure governed by statute that to understand the reported cases it is necessary in every case to examine the statute of the state. Statutes, however, almost without exception require that the plaintiff acquire some sort of lien upon the property as a basis of jurisdiction before filing a creditor's bill. It seems to be generally required that the creditor reduce his claim to judgment so that his demand can be legally fixed and its amount determined, and issue an exe- cution the levy of which fixes the lien of the creditor, except in those jurisdictions where by statute the judgment becomes a lien when obtained ; but there is a line of authorities gener- ally supported by statutes and by decisions of courts which hold that the requisite lien upon the property may be created by levy of a writ of attachment which gives notice to the world of its existence and protects the creditor until a judg- ment can be obtained at law and his claim fixed and settled as to amount, when he can at once file his bill to remove any in- cumbrance or obstruction that may stand in the way of a sale of the property to satisfy his debt. Another line of authority holds that as soon as the attachment is levied a lien is estab- lished and the amount of the judgment can be as well de- termined in the equity court as the law court, and that it is not necessary to obtain a judgment before filing the bill. Some of the courts have urged that it is great hardship and in- justice to forbid the interference of equity until a judgment is obtained ; that it prolongs the litigation, and that it is no an- 1 Hager v. Shindler, 29 Cal. 47. ' Tennent v. Battey, 18 Kan. 334, 2 Marshall v. Blass, 82 Mich. 518, 46 327: Almy v. Piatt, 16 Wis. 169. N. W. 947. § 492.] EESIEDIES FOR ENFOECEMENT OF LIENS, ETC. TYO swer to say that it is one of the hazards which every one must incur who does business on credit. In this connection it has been said: "If the risk can be diminished without injustice to honest, struggling debtors, it ought to be done. The rule ought to be relaxed, if it will be promotive of justice. The matter of practice is not of so much consequence as the proper administration of justice. The difficulty in all such cases is about the same, and lies in the fact that the debtor is about to dispose of his property before a judgment at law can be ob- tained." ' The authorities cannot be reconciled, nor can it be determined where the weight of authority rests, for the reason that in almost every jurisdiction the question is determined largelj^ by statute. The California court, in holding to the doctrine that the levy of an attachment creates a sufficient lien to support the creditors' bill, says: "The authorities do not place the right to go into equity upon the ground that the plaintiffs must show themselves to be creditors by judgment; but they go on the ground that they must show a lien on the property ; and this lien exists as well by the levy of an attachment as by exe- cution."^ 1 Dawson v. Sims, 14 Oreg. 561, 565. by indirection, but deliberately, and Mr. Waite, in his work on Fraudu- by some carefully formulated legis- lent Conveyances, p. 130, sec. 81, in lative substitute." Hahn v. Salmon, ■very direct and pointed language, 20 Fed. 801. denies the theory that an attach- 2 Conroy v. Woods, 13 Cal. 636, ment will support the bill. He says: 633; Bickerstaff v. Doub, 19 Cal. 109. "We deny that a mere attaching In Tappan v. Evans, 11 N. H. 811, creditor can, under any correct the- 337, the court, after discussing au- ory of law, become an actor in a thorities, said: "The general prin- creditor's suit. Indeed the under- ciple deducible from the authori- lying principles of the cases in which ties applicable to this case is, that it is sought to make a lien acquired where property is subject to execu- by the provisional remedy of attach- tion, and a creditor seeks to have a ment the practical equivalent of a fraudulent conveyance or obstruo- lien procured by final judgment are tion to a levy or sale removed, he subversive of the time-honored pol- may file a bill as soon as he has ob- icy and rule of the courts, that a tained a specific lien upon the prop- creditor's bill must be founded upon erty, whether the lien be obtained a definite claim established by a by attachment, judgment, or the is- judgment at law. If the innova- suing of an execution. But if the tions in modern procedure call for property is not subject to levy or the abrogation of this old chancery sale, or if the creditor has obtained practice, it should not be superseded no lien, he must show his remedy at T80 REMEDIES FOE ENFOECEIIENT OF LIENS, ETC. [§ ^93. § 493. Parties to creditors' bills. — (1) Plaintiffs. A cred- itor's bill should be filed by the judgment creditor or the person who owns the judgment. It is a well-settled rule that several judgment creditors may unite in one suit in the equity law exhausted, by an actual return upon his execution that no goods or estate can be found (which is pursu- ing his remedy at law to every avail- able extent), before he can file a bill to reach the equitable property of the debtor." Citing a number of authorities. The Wisconsin court, holding that the levy of a writ of at- tachment creates sufficient lien, verj- f u Uy d iscusses the authorities in that state in French Lumbering Co. v. Theriault et ux., 107 Wis. 627, 637, where the court, in summing up the opinion, say: ''That a judgment 146. (4) that bill is multifarious, 146. PLEAS TO THE JURISDICTION - (see Pleas in Equity, 144; Juris- diction of Equity Exercised, when) — when advantage for want of jurisdiction should be taken, 144. when may be taken at hearing, 144. objection that court has no jurisdiction may arise, W^. (1) that cause set up in bill is not within equitable jurisdic- tion, 146. (2) that parties cannot litigate in the particular court, 146. (3) that cannot litigate because another suit pending, 146. PLEAS TO THE PERSON— (1) to the party complainant, 145. foundation of plea, 145. reasons for filing, 145. (2) to the party defendant, 145. when it may be interposed, 145. see Pleas in Equity. INDEX. 849 References are to sections, PRAYER FOR PROCESS— asks for writ to compel appearance, 47. usual writ prayed for is subpoena, 47. history of the writ, and its adoption by chancery court, 47. must name the defendants to be served with process, 47. persons not named in, not considered as parties, 47. bin not demurrable which has no prayer, when, 47. if injunction desired, writ of should be prayed for, naming person to be enjoined, 47. see Several B-ius in Equity. PRAYER FOR RELIEF— may be special or general, 46. provisions as to in United States court, 46. general prayer may be added by amendment, 46. form of, 46. stating part of bill governs, 46. importance of general prayer, 46. should pray for injunction, if sought, 46. that sought to be enjoined should be particularly set out in, 46. PREMISES OR STATING PART OF BILL— a formal part of bill in equity, 31. See Bill in Equity. in this part must state essentials of case, 31. requirements as to positiveness and certainty, 31. must show plaintiff entitled to relief prayed for, 31. every essential fact must be distinctly and expressly averred, 31. not to state the evidence but the essentials of case, 31. the importance of this part of bill, 31. plaintiff must state his whole case, 32. not permitted to divide the action, 32. such practice would permit mulitiplicity of suits, 32. requisite allegations to support the equity case and prayer must be fully stated, 32. there must be a subject of the litigation shown, 32. what it may be, 32. the bill must here show title in the complainant, 32. the strictness required, 32. enough to state plaintiff owner or owner and in possession, 32. English and American rule, 32. interest must be shown to be real and valuable, 32. failure to show interest renders bill demurrable, 32. capacity in which plaintiff sues must appear, 32. must state the wrong and injury to complainant, 32. if it does not appear bill demurrable, 32. defendant's claim of interest and liability for wrong or injury must be stated, 33. failure to do this renders the bill demurrable, 33. form and manner of statement, 34. how facts must be stated, 34. .54 850 INDEX. Eeferences are to sections. PREMISES OR STATING PART OF BILL, (continued) — setting up deeds, mortgages, contracts, records, etc., 35. not necessary to set out in hwc verba, 35. what sufficient statement of, 35. when must tender of performance be made, 36. as to actual performance of conditions precedent, 36. tender of performance in the bill, 36. allegations of fraud, 38. cannot be alleged by mere statement of conclusions, 38. must set out facts and circumstances constituting fraud, 38. so clearly that court could make a decree, 38. so fully that defendant can meet it by denying facts stated, 38. the bill must not be multifarious, 39. is if contains two or more different and distinct objects, 39. may have distinct and different subjects, 39. the bill may be framed with double aspect, 40. what is meant by this, 40. nature and extent of, 40. scandal and impertinence, 41. what constitutes — effect of, 41. when scandalous matter may be stated, 41. raay state pertinent facts of case even though damaging to rep- utation, 41. PRESUMPTIONS (see Judicial Notice)— party need not prove in first instance facts presumed, 302. burden of disproving presumption on party having negative, 302. even though it calls for proving a negative, 302. sanity presumed — need not prove, 302. legitimacy of issue presumed if legal marriage proved, 302. good faith between parties, 302. fair dealing and honesty, 302. when transaction susceptible of two interpretations, 302. all men know the law, 302. ' see EviDBscE. PROCESS, SERVICE OF— chancery subpoena — origin of, 73. general use of, 74. form of the writ — its general use, 74. how addressed — form of, 75. service of, 76. upon infant defendant, 76. infant appears by guardian, 77. service on lunatics, 78. on prisoners, 79. married women, 80. corporations, 81. on state, 82. by whom served, 83. INDEX. 851 Eeferences are to sectioos. PROCESS, SERVICE OP (continued) — substituted service, 84. service when defendant without the jurisdiction, 85. order for publication — proof of, etc., 85. judgment on such service — validity of, 86. service by order for publication in divorce cases, 87. theory for allowing such service — action in rem, 87. PRO CONFESSO— PROCEEDINGS TO A DECREE— formerly no power to proceed to decree without appearance, 97. brought defendant in by writ of subpoena, 97. arrested defendant for contempt if failed to appear, 97. history of early practice, 97. sequestration of property sometimes result, 97. bill taken pro confesso — statutory, 98. entering of default and proceeding to decree, 98. practice in United States court, 98. some requisites to obtaining order, 98 must appear defendant duly served, 98. may be personal or constructive service, 98. that being served defendant failed to appear, 98. how the facts may be shown, 98. order must be regularly entered, 98. some forms given in notes, 98. default for failure to demur, plead or answer, 99. having appeared, failure to demur, plead or answer, 99. the practice and procedure, 99. appearance entitles defendant to notice of all subsequent proceed- ings, 100. admissions of fact by defendant's default, 101. rule in United States court as to, 101. if answer required, as where bill for discovery,. 101. if answer may be compelled — how, 101. if defendant is an infant, 102. amending bill after default, 103. opening or setting aside default, 104. when decree pro confesso has been taken, 105. court will not so readily open and set aside default after decree, 105. QUIET TITLE— BILLS TO, 425, 426, 427. see Bills to Remove Cloud fkom Title. RECEIVERS, 383-397. nature and office of in equity suits, 383. are appointed to assist the court in carrying out its orders, 383. to collect funds and prevent fraudulent and wasteful expend- iture, 383. to prevent waste, injury, and destruction of property^ 383. called the hand of the court, 383. remedy a harsh one, 383. 852 INDEX. References are to sections, RECBIVE3RS (continued) — a definition and some requisites, 384. receiver should be an indifferent person between the parties, 384. appointed when unjust and inequitable that either party should have possession and control, 384. acts for the court and should be unbiased, 384. can be no receiver before suit commenced or after terminated, 384. jurisdiction to appoint, 385. equity court only court having jurisdiction to appoint, 385. unless provided especially by statute, 384. must be in pending suit, 384-386. property placed in hands of, must be owned or controlled by party to suit, 386. bill must show complainant entitled to relief, 386. that appointment necessary to carry out relief prayed for, 386. that appointment is necessary to avoid irreparable injury and loss, 386. in what cases appointed, 387. can only be determined from nature of case, 387. appointment only provisional remedy, 387. not ultimate object of litigation, 387. appointment rests in sound discretion of court, 387. court must proceed with caution, 387. is appointed for benefit of all parties to suit, 387. some special cases, 388. partnership cases, 388. bill filed must seek a dissolution of partnership — mere dis- agreement between partners not sufficient reason, 388. necessity of, on bill to dissolve partnership, 388. excluding one partner from access to books or part in man- agement of business, sufficient, 388. may be appointed after dissolution to wind up concern, 388. in foreclosure suits, 388. when may be invoked in foreclosure suits, 388. often invoked in railroad and corporation foreclosures, 388. appointed in creditors' suits, 388. when and under what circumstances in creditors' suits, 388. cannot be maintained by mere general creditor, 388. generally accompanied with issuing of writ of injunction, 388. appointment almost matter of course in cieditors' suits, 388. appointment of, over corporations, 388. when appointment will be made and when refused, 388. statutory provisions generally control, 388. receivers over real property, 389. when will be appointed, 389. INDEX. 853 K3ferenoes are to sections. RECEIVERS (continued) — court will refuse to deprive one of his possession of, by appoint- ment, 389. * must appear that great loss will result if not appointed, 389. if question one of disputed title, court will not appoint, 389. will not appoint except when necessary to prevent fraud, 389. or protect property from injury, 389. or preserve it from destruction, 389. plaintiff must show strong probability of prevailing in suit, 389. and imminent danger to property, 389. or its rents and profits, 389. the application for appointment of, 390. may be made ex parte, when and how, 390. only in cases of great emergency, 390. which demand immediate action for prevention of irreparable injury, 390. or where to defer it would result in irreparable damage, 390. exigencies must fully appear in the bill, 390. usually courts will demand notice to defendant of application, 390. application usually by petition, 390. what petition should set forth, 390. should be signed and verified by applicant, 390. and served with copies of affidavits relied upon attached, 390. with notice of hearing to opposite party, 390. opposing the application, 390. defendant may, by counter-aflBdavits and by filing sworn an- swer, denying all equities of the bill, 390. the effect of sworn answer denying equities, 390. need not be taken as absolutely true, 390. stands as any other evidence in the cause, 390. the order on application for appointment, 391. by its terms confers the power and authority given to re- ceiver, 391. should describe the property or assets to be taken and con- trolled by, 391. description of, should be sufficiently certain to identify prop- erty, 391. order usually provides receiver shall give a bond, 391. from time of appointment, property in custocUa legis, 391. and not subject to levy, execution or attachment, 391. what order usually recites, 391. defendant required to forthwith turn over and deliver property to receiver, 391. this includes books, vouchers, papers, deeds, contracts, indebt- edness, etc., 391. an approved form of order, 391. 854 INDEX. Keferenoea are to sections. RECEIVERS (continued) — the title or riglit of possession and control of the receiver, 392. takes all right, title and interest defendant has at time of ap- pointment, 392. but takes subject to legal claims or defenses against It, 392. as to third parties, stand in same position as defendant, 392. is merely ministerial agent of the court, 392. must recognize exemption laws, 392. some of powers of, enumerated, 392. when may continue a going business and to what extent, 392. the New York rule in cases of creditors' bills, 393. assignment to receiver of all property of defendant, 393. powers, rights and duties of, under the rule, 393. something of the powers, duties and obligations of the receiver, 394. duties of, entirely ministerial, 394. acts under direction and guidance of court, 394. appointment operates as equitable execution, 394.' primary object of his appointment, 394. duties equal and alike to all, 394. some of his powers enumerated, 394. must constantly apply to the court for advice and sanction, 394. his liability ceases, when, 394. foreign and ancillary receivers, 395. as a general rule, powers of co-extensive with jurisdiction of the appointing court, 395. when may act in foreign jurisdiction, 395. regulated by comity of states, 395. doctrine often invoked in railroad foreclosure cases, 395. where mortgaged property located in several adjoining states, 395. some discussion of the doctrine, 395. interference with receivers, contempt of court, 396. receivers said to be a part of the court, 396. so interference with, interference with the court, 396. court will protect its officers in administration of duty, 396. possession of receiver possession of court, 396. so obstruction to, obstruction to court, 396. actual notice of appointment sufficient, 396. formal notice not necessary, 396. defendant may be heard as to his control and possession of property, 396. procedure in cases for contempt, 397. equity court usually follows New York practice, 397. the procedure and practice in cases of contempt, 397. see Contempt. RECORDS AND ORDERS— what are, 15. INDEX. 855 References are to sections. REDEMPTION— equity of redemption, some history of, 460. see Mortgages ob Pledges, Actions foe the Foeeclosdee or, 460-477; Bills to Redeem, 477-481. REFORMING A CONTRACT, DEED OR WRITTEN OBLIGATION, 417-421. wnen equity will take jurisdiction, 417. the necessity of the remedy, 417. for mutual mistakes, 417. the mistake upon which the remedy may be based, 418. ignorance of law with knowledge of facts no defense, 418. mistake of legal effect of, not suflScient, 418. but ignorance of law of foreign country or foreign state has been held suflficient, 418. when total Ignorance of title founded on mistake of law suffi- cient, 418. if mistake of one party accompanied by fraud of other party equity will reform, 418. court has wide discretion in this class of cases, 418. but will not supply an agreement that was never made, 418. will only reform to express real intention of parties, 418. will protect rights of tiona fide purchasers, when, 418. the procedure — the bill of complaint, 419. the requisites of the bill of complaint, 419. the instrument as well as the fraud or mistake should be set out in the bill, 419. if mistake result of fraud of defendant, should appear In the bill, 419. the fraud should be carefully and fully stated, 419. when other matters than reformation may be object of bill, 419. a bill for reformation and foreclosure not multifarious, 419. may be to reform contract and for specific performance, 419. defenses, 420. not dissimilar to other defenses in equity, 420. may be by demurrer, plea or answer, 420. if by bill it appears that there has been long continued laches, may demur, 420. cases where demurrer will be sustained, 420. when defense should be by plea, 420. when an answer should be filed^ 420, the proofs, 421. presumption is that contract or written instrument is valid, 421. burden of proof, of mistake or fraud upon the plaintiff must be clear and positive and beyond rational doubt, 421. REHEARING OF EQUITY CAUSE, 335-340. may be after decree settled and entered but before enrolment, 335. or by rule and practice of court, before has become a record In cause, 333. 856 INDEX. References are to sections. REHEARING OF EQUITY CAUSE (continued) — this applies not only to decrees granted upon final hearing, but decrees obtained upon demurrer or plea, 335. and cases where the order of the court is for further directions, as execution of decree, 335. or on exceptions to report to commissioner or master, 335. is analogous to motion for new trial in law case, 335. case not subject to this procedure after enrolment, 335. court has control of its own judgments before enrolment, 335. practice and reasons for granting rehearing, 336. usually presentod to court by petition, 336. defendant may answer petition, 336. when grounds of petition newly-discovered evidence, 336. what the petition should contain, 336. when petition upon ground of error of law, 336. rehearing where decree taken pro confesso and permitting defense, 337. proceeding generally limited to decrees not enrolled, 337. generally rest in sound discretion of court, 337. usually allowed where there was irregularity in the proceed- ings and it would be unjust to permit it to stand, 337. or upon showing of surprise, mistake or accident, 337. or that interests of strangers to record have not been protected, 337. federal court practice fixed by rule, 337. pro confesso decree in, when final and beyond power of court, 337. party moving to reopen or for rehearing must not be guilty of laches, 338. this applies as well to pro confesso decrees, 338. form and requisites of application, 339. filing and serving same and answer thereto, 339. petition must set forth with certainty reasons for granting, 339. generally should not be on information and belief, 339. if so alleged, should be supported by affidavits of others, 339. for error of law grounds of petition must be apparent upon the record, 339. and arising on questions not argued at final hearing, 339. newly-discovered evidence, when grounds for petition, 339. petition must show evidence not cumulative, 339. of such a nature that, if it had been presented, it would have changed results 339. that it was not known to exist before the hearing, 339. that with reasonable diligence petitioner could not have dis- covered it, 339. must state nature of newly-discovered evidence, 339. as to attaching affidavits of witnesses expected to furnish proof, to petition, 339. should allege decree inequitable and injurious to petitioner, 339. INDEX. 857 References are to sections. REHEARING OF EQUITY CAUSE (continued) — petition should be signed and sworn to by petitioner, 339. filed witli cleric and served with copies of affidavits to opposite solicitor, 339. answer to petition by opposite party, 339. may traverse or confess and avoid, 339. when order to show cause, 339. United States court rule as to petition, 339. the hearing of petition, 340. how petition for rehearing brought on for hearing, 339, 340. as to the proofs adduced at hearing, 340. generally by affidavits or records referred to, 340. court may order witnesses for oral examination brought in, 340. petitioner has affirmative at the hearing, 340. the opening and closing of proofs and argument, 340. the consequences of allowing rehearing, 340. HEMEDIES IN EQUITY, 1, 2, 366-368. remedies legal and equitable, 1. equitable remedies — history of, 2. classification of equitable remedies, 362. statutory actions, 368. REPLICATION, 237. nature of, 237. two kinds — formerly, general and special, 237. special replication out of use, 237. when complainant should file, 238. effect of filing, 238. waives the right to except, when, 239. time for filing, 240. form of general replication, 241. waiver of replication, 242. plaintiff's reply to plea, 176. necessity and effect of, 176. RESCISSION, CANCELLATION, SURRENDER, OR DISCHARGE OF INSTRUMENTS, 422, 428. the equitable jurisdiction in cases of, 422. the reason for taking jurisdiction, 422. jurisdiction rests fundamentally upon grounds of fraud, acci- dent or mistake, 422. fraud in the procurement of the instrument or failure of con- sideration, 422. accident, when equitable advantage on account of, obtained, 422. mistake or misconduct of parties, 422. or undue or inequitable advantage, 422. rescission, cancellation, surrender or discharge may be brought in one procedure or bill, 422. objects should not be inconsistent with each other, 422. 858 INDEX, References are to sections, RESCISSION, CANCELLATION, SURRENDER OR DISCHARGE OF INSTRUMENTS (continued) — complainant must surrender and cause complete restoration of subject-matter, 422. must offer to restore or tender restoration in bill of complaint, 422. if complete and adequate remedy at law, equity will not as- sume jurisdiction, 422. some cases in which the remedies are applicable, 423. as where complainant non compos mentis and incapable of con- tracting, 423. to cancel insurance policy obtained through fraud, 423. to remove cloud from title, 423. the cancellation of promissory notes, 423. the procedure, 424. is by bill in equity, following general rules of pleading, 424. bill must do or offer to do equity, 424. complainant must not be guilty of laches, 424. defenses are by demurrer, plea or answer, 424. to remove cloud from title — nature of remedy, 425. nature of the remedy and cases in which it may be invoked, 425. adequate remedy at law, 426. possession by the plaintiff, 427. some discussion and changes noted in procedure, 427. the pleadings, 428. necessary allegations in the bill, 428. the prayer of the bill, 428. the defense — nature and kind of, 428. REVIVOR— BILLS OF, 271-281. not original, 25. demurrer to, 127. nature of the bill of revivor, 271. when abatement of action, 271. death of party usual cause, 271. interest necessary to support the bill, 272. parties to the bill of, 273. parties defendant to bill, 274. original bill in the nature of bill of revivor, 275. the nature and use of such bill, 275. privity of estate and privity of title distinguished, 275, when a defendant can sustain a bill of revivor, 276. form of the bill, 277. distinction between bill of revivor and bill in nature of bill of re- vivor, 278. form of such a bill, 279. bill of revivor and supplement, 280. nature of such bills — when used, 280. defense to bill of revivor — as in equity cases generally, 281. INDEX. 769 References are to sections. REVIVOR— BILLS OF (continued) — demurrer, plea, answer — when properly employed, 281. the replication, 281. the hearing, 281. REVIEW, BILL OF (see Bills of Review and in the Nature of Bills OF Review). SCANDAL AND IMPERTINENCE, 41. when statements so considered — when not, 41. Immaterial, redundant allegations stricken out as, 41. one of the ordinances of chancery court, 41. criminal and scandalous matter as, 41. rules of United States court forbid, 41. when criminating personal charges permitted, 41. fraud or criminating acts properly charged when, 41. exceptions to answer for, 202. see Bill in Equity. SECURITIES— MARSHALING OF, 482-485. see Marshaling Securities. SEQUESTRATION— formerly resorted to to compel appearance, 74. history of early practice, 97. see Pro Confesso — Proceedings to a Decree; Contempt; At- TACpiMENT. SERVICE OF DEFENDANT, 73-96. see Process — Service of; Appearance of Defendant, 88. SIGNING THE EQUITY BILL, 67. SPECIFIC PERFORMANCE OF CONTRACTS, 429-436. nature of the remedy and when it may be invoked, 429. application and extent of remedy, 429. not a matter of absolute right, but of discretion, 430. rests in sound discretion of the court, 430. does not depend on mere pleasure of court, but controlled by established doctrines and principles, 430. must appear that specific enforcement will work no hardship or injustice, 430. some requisites to the relief, 431. must appear that recoverable damages at law are inadequate, 431. or the impossibility of ascertaining the damages, 431. performance in specie must be practical and possible, 431. will not decree where contract upon homestead executed by hus- band but not by wife, 431. nor where material part of subject-matter is wanting, 431. other reasons for not decreeing performance, 431. where performance of contract to make a will is sought, 431. in case of oral agreement by receiver of railroad company, 431. 860 INDEX. References are to sections. SPECIFIC PERFORMANCE OF CONTRACTS (continued) — where agreement requires doing an act solely within volition of obligor, cannot be enforced, 431. as where agreement to perform professional duties, 431. contract for partnership, where no part is performed, not en- forceable, 431. where contract is unconscionable or involves great hardship, 431. where contrary to good morals or against public policy, 431. where performance of contract is great hardship, but not uncon- scionable and not obtained by fraud, 431. tender of performance, 432. equitable maxim applicable, 432. where conditions precedent to performance, 432. must allege and show ability and willingness to perform, 432. better practice to make tender of performance, 432. when defendant has rendered tender unnecessary, 432. the procedure — the parties, 433. procedure by bill of complaint, 433. parties to bill generally parties to contract, 433. bill of complaint, 434. general requisites to the bill, 434. prayer of the bill, 434. defenses to the action, 435. may be by demurrer, plea, or answer, 435. when the several defenses are properly invoked, 435. the decree, 436. when the court will refuse its aid, 436. when performance decreed — nature and extent of, 436. when entire or partial performance decreed, 436. when performance refused or damages awarded, 436. powers and jurisdiction of the court broad in such cases, 436. STATING PART OF BILL (see Peemises oe Stating Pakt of Bill, 31-41; Sufficiency). STATUTE OF FRAUDS (see Pleas in Equity, 155) — when may take advantage because of, by demurrer, 155. when by plea, 155. form of pleading, 157. STATUTES OF LIMITATIONS (see Pleas in Equity, 150) — when may be pleaded, 150. laches as a defense, 151. relation of to statute of limitations, 151. exceptions — reasonable excuse for delay, 152. statute of limitations in trust cases, 153. when demurrer on account of, 150. SUBROGATION, 445-452. see Contribution, Exoneration and Sukrogation. SUBSTITUTED SERVICE (see Process, Service of) INDEX. 861 References are to sections. SUFFICIENCY (see Premises ok Stating Part of Bill, 31-41) — certainty required not so strict as at common law, 26. allegations should be logical and certain, 26. some cases require same degree as at law, 26. certainty to common intent generally enough, 26. matters court will take judicial knowledge of, 26. these need not be alleged in bill, 26. the subject of the litigation must be alleged with certainty, 33. title in complainant must be shown by certain allegations, 33. the wrong and injury must be shown with certainty, 33. defendant's claim and liability for wrong and injury alleged with certainty, 33. sufficient facts must be certainly alleged to support plaintiff's case, 32, 33, 34. SUPPLEMENTAL BILLS— BILLS NOT ORIGINAL, 25. may demur to, 127, 267. see Supplemental Pleadings. SUPPLEMENTAL PLEADINGS, 260-270. the office and nature of, 260. as to facts occurring since original pleadings, 260. leave of court must be obtained to file, 261. petition should contain, 261. granting leave to file, in discretion of court, 262. abuse of discretion grounds for appeal, 262. limitations to use of the bill, 263. when facts inconsistent and foreign to original bill, 263. when new and substantive case made by facts alleged, 263. parties to the bill, 264. generally parties to original bill should be, 264. may introduce new parties, 264. substance and frame of supplemental bill, 265. formerly must fully recite original bill and proceedings, 265. need not recite in full — substance enough, 265. must follow the order, granting leave to file, 265. proceedings on filing bill, 266. defenses to, are the usual defenses in equity, 267. original bills in the nature of a supplemental bill, 268. supplemental answer, 269. new matter of defense occurring since answer filed, 269. leave of court to file must be obtained, 270. application for, must show, 270. TENDER— in bill, 36. see Specific Performance of Contracts, 432. TESTIMONY (see Evidence, 297-304). TITLE OR INTEREST— OF COMPLAINANT— OF DEFENDANT (see Premises or Stating Part of Bill, 31-34; Sufficiency; Cert.vinty as to Allegation). 862 INDEX. References are to sections. TRESPASS— equity will not enjoin — general rule, 399. exceptions to general rule, 399. when equity will enjoin, 399. TRUSTEES— CESTUI QUE TRUST— as parties in equity, 64. statute of limitation as to, 153. statute of limitation does not run between, 153. other cases when not a bar, 153. TRUSTS— DECLARATION AND ENFORCEMENT OP AND OBLIGA- TIONS ARISING PROM PIDUCIARY RELATIONS, 437-444. trusts — nature of and definition, 437. the ofiSce and extent of equitable actions relative to, 437. equity does not create but defines, determines, and enforces, 437. equity will follow property wherever it may be, 437. persons receiving it charged with execution of trust, 437. creation or declaration of trusts, 438. how divided, 438. nature and general discussion of, 438. equitable remedies — procedure, 439. nature of remedy, 439. equity will follow the trust property, 440. property once impressed with trust becomes special object of equity court, 440. court will follow it and appropriate it to uses of trust, 440. exception when property co-nes to tona fide purchaser, 440. pleadings and procedure in enforcement of trusts, 441. who may maintain action and enforce trust, 441. when cestui que trust may bring action in his own name, 441. who are necessary parties, 441. the bill of complaint, 442. what the bill must show — allegations of, 442. who should be made parties, 442. description of property, 442. alleging the existence of the trust, 442. not sufficient to state conclusion, 442. prayer for relief, 442. the defenses, 443. by demurrer, plea, or answer, 443. when several defenses are proper, 443. defense that defendant is iona fide purchaser may be raised by plea supported by the answer, 443. the decree, 444. the extent and nature of, 444. VERIFICATION OP THE EQUITY BILL, 68. when required and reason for, 68. WRITS OF ATTACHMENT (see Attachment). WRITS OF EXECUTION (see Executioxs, Wkits of).