KFV 2931 .L55 ii!iil!i!iiii)}iliiii|iisiH| lliili ttHittiiA\, mm .»v<^ #- .V QlnrttpU Ham #rl|nnl ICtbrarg ilar0ljall lEquttg Qlnllerttntt dtft of E. 31. iiarHljaU. SI.ffi. 1. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 084 263 817 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263817 LECTURES ON EQUITY PLEADING # PRACTICE WITH FORMS AND The New Federal Equity Rules Prepared for the use of the students of the Law School of the University of Virginia BY W. M. LILE Professor of Law University of Virginia GEORGE W. OLIVIER University Book Store 1916 Copyright, 1916 BY W. M. LiLE Pref ace This small volume is largely the result of many years of ef- fort to collect the fundamental principles of the Equity Pleading and Practice for the use of the author's students in class-room instruction. The topic is one that can successfully be taught to students only by confining the instruction largely to the proce- dure of some particular jurisdiction. Numerous attempts to use the larger well-known texts in the class-room have proved hope- less failures. The author has therefore drawn very largely upon the system of procedure as it exists in Virginia, where the pro- cedure at law and in equity is still as distinct as when Lord Ba- con occupied the woolsack — and where the equity procedure probably conforms more nearly to that of Bacon's day than that of any American state. In the treatment of the subject of Receivers, free use has been made of Mr. High's scholarly treatise, for which due ac- knowledgment is made. If, in so elementary a work, the subject of Receiverships seems overstressed in comparison with the briefer treatment of other topics of equal or greater importance, the explanation is that it was found impracticable to handle the subject in less compass, even in most elementary fashion. Detailed reference is made throughout to the new Federal Equity Rules — and these rules have been reproduced in full in the Appendix. It is hoped that the complete record of a chancery suit, as ex- hibited in the Appendix, may assist the student in visualizing the actual procedure in court, and in cultivating a closer acquain- tance with those forms which he is expected as a practitioner to have at his fingers' ends. In order to fulfill its- primary end as a guide to the student through what seems to the average undergraduate a dull and un- inviting territory, the value of the work to the experienced prac- titioner has been sacrificed, by the omission of many minute points of practice. W. M. L. University of Virginia, May 1, 1916. Table of Contents t. Chapter I. Preuminary. Chapter II. Jurisdiction. Chapter III. Venue of Suits. Chapter IV. Process to Commence Suit. Chapter V. Proceedings in the Clerk's Office. Chapter VI. Parties. Chapter VII. Outline of the Pleadings. Chapter VIII. Multifariousness. Chapter IX. The Bill. VI TABLE OF CONTENTS. Chapter X. The Originai, Biei, in Detail. Chapter XI. I Original Bills Not Praying Reliee. Chapter XII. Bills Not Original. I Chapter XIII. Bills Not Original — Continued. Chapter XIV. The Demurrer. Chapter XV. The Plea. Chapter XVI. The Answer. Chapter XVII. , The Replication. Chapter XVIII. The Testimony. Chapter XIX. Consolidation oe Causes. Chapter XX. Miscellaneous Proceedings. TABLE 0]? CONTENTS. VII Chapter XXI. Orders and I>ucrees. Chapter XXII. The Master's Report. Chapter XXIII. Judicial Sales. Chapter XXIV. . Enforcement oe Decrees. Chapter XXV. Special Ancillary Proceedings. Chapter XXVI. Special Instances oe Suits eor ReliEE. Chapter XXVII. Injunction Suits. Chapter XXVIII. Suits for Partition. Chapter XXIX. Suits eor Divorce. Chapter XXX. Sale of Lands of Persons under Disability. Chapter XXXI., Creditors' Suits. vin table; of contents. Chapter XXXII. Appointment oi? Receivers. Chapter XXXIII. Receivers — Continued. Appendix I. 1. The Complete Record oe a Suit eor Specific Perform- ance. 2. Sundry Forms. Appendix II. The New Federal Equity Rules. Lectures on Equity Pleading and Practice CHAPTER I. PREIylMINARY. /. Equity Courts. § 1. Jurisdiction statutory. — The judicial system of each state of the Union is fixed by local legislation. The Federal system depends on the constitution and laws of the United States. § 2. Equity courts in Virginia. — The equity or chancery jurisdiction in Virginia is vested in the circuit and corporation courts of the different counties and cities, with special provisions made for the cities of Richmond and Norfolk.^ § 3. Federal courts of equity. — In the Federal system, the original equity jurisdiction was from the beginning vested in the United States Circuit courts, until by a quite recent statute the Circuit courts were abolished, and all original jurisdiction, both at law and in equity, was vested in the District courts — courts which had formerly possessed no general equity jurisdiction. § 4. The Virginia and Federal judicial systems — con- tinued. — In neither the Virginia nor the Federal system are there separate courts for the administration of the equity juris- diction, as distinguished from the jurisdiction at law. But the courts named in the preceding section possess general jurisdic- tion both at law and in equity. Although the two jurisdictions are thus administered by the same courts, equity suits are in- stituted and conducted according to the equity practice, and law suits according to the practice at law. The records are kept 1. Va. Code, §§ 3051, 3055, 3058. 2 EQUITY PLEADING AND PRACTICE. distinct, and there is no further mingling of the two systems than in the administration of both by the same judicial machinery. For a knowledge of the judicial systems of other states, refer- ence must be had to their local legislation. //. The pleading and practice in equity courts. § 5. Equity pleading and practice in Virginia. — In Vir- ginia, the procedure in courts of chancery is based on that pre- vailing in the High Court of Chancery in England at the time the colonies declared their independence, as modified by statute, or by departures here and there which have become established by long custom and judicial sanction. § 6. The same — in the Federal courts — old equity rules. — Up to February 1, 1913, when radical alterations were made in the equity practice, the procedure in the Federal courts of equity probably conformed more nearly to that formerly prevail- ing in the English High Court of Chancery than does the pro- cedure in the Virginia courts. This procedure was to a large extent, regulated by what is known as the Federal Equity Rules, promulgated from time to time by the United States Supreme Court for the regulation of procedure generally in all Federal courts of equity. In most respects, these rules were largely declaratory of the existing practice. § 7. The same — new Equity Rules. — In response to a very general demand for reform in the equity procedure of the Federal courts, the Supreme Court of the United States on November 4, 1912 (effective February 1, 1913), promulgated a new code of equity procedure for the Federal courts, making extensive and radical alterations of the old procedure — all looking to economy and dispatch in the maturing, decision and final disposition of equity causes. These latter rules completely supersede the former Equity Rules. 2 2. For a luminous discussion of the question whether the regula- tion of court procedure is a legislative or a judicial function, and as to the constitutionality of statutes delegating to the courts the pro- mulgation of rules of practice and procedure, see 2 Am. Bar Ass. Journal, 46. CHAPTER II. JURISDICTION. § 8. Jurisdiction — two senses. — As the term jurisdiction is used in two different senses, it becomes important to distin- guish these at the outset. Indeed, so marked is the distinction, that for our purpose we may classify jurisdiction as of two kinds — the one potential, and the other active, jurisdiction. Later we shall consider another classification, from a different point of view, namely, jurisdiction in personam and in rem. A. Potential and active jurisdiction. § 9. (1) Potential jurisdiction — meaning. — By potential jurisdiction is meant the power granted by the sovereignty creat- ing the court to hear and determine controversies of a given character. For example, the Virginia statute declares that the circuit courts of this state "shall have original and general jurisdiction of all cases in chancery and civil cases at law." '^ Hence we may say that by virtue of this statute our circuit courts have poten- tial jurisdiction, generally speaking, over every conceivable chan- cery cause, regardless 'of the residence of the parties or of the location of the subject-matter of the controversy. § 10. (2) Active jurisdiction — meaning. — In order that the court thus invested with potential jurisdiction may rightfully exercise that jurisdiction in a particular case, certain conditions of fact must appear — these conditions varying with the char- acter or purpose of the proceeding. These conditions of fact may be demanded either by the settled principles of the un- written law, or by the mandate of the statute law. For example, it is a fundamental principle of all civilized ju- risprudence that howsoever general the potential jurisdiction of 1. Va. Code, § 3058. 4 EQUITY PLEADING AND PRACTICE. any court, before this jurisdiction may actually be exercised by proceeding to judgment, the parties to the controversy, or the sub- ject-matter thereof, must be brought by proper proceedings (pres- ently to be mentioned) within the judicial cognizance and control of the court. We may, therefore, define active jurisdiction as the- right to exercise the potential jurisdiction in a given case. In other words, active jurisdiction connotes potential jurisdic- tion, plus such conditions of fact in the particular case, as are necessary to enable the court, under existing rules, to hear and determine that cause. § 11. Potential jurisdiction lacking. — It is a settled rule that where potential jurisdiction is lacking in a particular case, any judgment or decree rendered therein is coram non judice and void. Thus, if the Hustings court of the city of Richmond (a court without general equity jurisdiction) should entertain a suit for specific performance of a contract, or should assume to enter a decree of divorce — or if the District court of the United States should assume jurisdiction of a controversy between two states (a jurisdiction vested exclusively in the United States Supreme Court) — any judgment or decree resulting from such usurped ju- risdiction would be not only voidable but void.- § 12. The same — not cured by waiyer or consent. — It is an equally well settled rule that where, in order to hear and de- termine a given cause, the court must usurp a power not vested in it under the instrument of its creation, no waiver or consent of the parties, howsoever solemnly given, can afifect the situation. The maxim here is "consent cannot confer jurisdiction." " § 13. The same — how and when objection made. — Since there can be no waiver of the objection in such case, it fol- lows that exception to the jurisdiction may be made by any party, at any stage of the proceeding, and in any form, oral or written, and even for the first time in the appellate court. It is equally true that even though no such objection be made, the court will 2. Heigler v. Faulkner, 127 U. S. 482. JURISDICTION— rPOTENTIAL — ACTIVE. 5 of its own motion dismiss the suit whenever .'and at whatever stage of the proceedings the absence of jurisdiction comes to its attention.^ And further, any decree in such proceeding is sub- ject to be collaterally assailed, whenever and wherever it may be brought in question. § 14. The same — equity exercising cominon law juris- diction. — Notwithstanding the principle just announced that the decree of a court without potential jurisdiction is null and void, this result does not follow from the mere circumstance that a court of equity has erroneously exercised, in a particular case, jurisdiction in a cause properly cognizable only in a common law court. The proceedings would be erroneous, and Hable to be set aside on appeal, but would not be void and subject to collateral attack.* § 14a. Action at law erroneously brought in Federal court of equity — transfer. — Provision is wisely made in the new Federal Equity Rules for transferring to the law side of the court a suit erroneously brought in equity and justiciable at law only.** § 15. Active jurisdiction — how acquired — waiver. — Where potential jurisdiction exists, active jurisdiction which, as we have just seen, is the right actually to exercise the judicial function of hearing and determining a particular cause, may be acquired in two ways : ( 1 ) By compulsory process of the court ; and (2) by the voluntary submission of the parties. Since the process of the court is not effective beyond the ter- ritorial limits of the sovereignty by which the court is created, it follows that if neither the defendant nor the subject-matter be within such limits, so as to become subject to the court's process, the court, though possessing full power to deal with controversies of that kind — in short, potential jurisdiction — is unable to exer- cise its grant of power, and consequently is without active juris- 3. Green v. Massie, 31 Gratt. 356. 4. 1 Pom. Eq. Jurisp. 131; Lemmon v. Herbert, 93 Va. 653; Good- man V. Winter, 64 Ala. 410. 4a. Equity Rule 33. 6 EQUITY PLEADING AND PRACTICE. diction; and the cause must be dismissed, unless the defendant voluntarily submits himself to the jurisdiction. Hence the methods of acquiring and exercising active jurisdic- tion, as prescribed by law, may, to a large extent, be modified or waived by the consent or voluntary appearance of the defendant, without in anywise affecting the powers of the court in the ex- ercise of its potential jurisdiction. Consent may therefore, as a general rule, confer active but not potential jurisdiction. The foregoing discussion of 'the general subject of jurisdiction enables us to reconcile the apparently conflicting principles con- stantly recurring in the books, namely, the rule that "consent cannot confer jurisdiction," and the rule that "objection to the jurisdiction must be pleaded in abatement, at any early stage of the proceeding." We shall see something more of the latter rule hereafter. B. Jurisdiction in persoimm and in rem. §,16. (1) Jurisdiction in personam. — By this phrase is meant jurisdiction of the person of the defendant, as distinguished from the thing which constitutes the subject-matter of the con- troversy. We have already seen that active jurisdiction cannot be exercised unless one or the other of these is within the reach of the court's process ; and that, in the absence of express re- strictions, the process of every court of general jurisdiction is effective throughout the territorial limits of the state whose au- thority it exercises, but not beyond. Thus, in the absence of express statutory restrictions, process from a Virginia court is effective throughout A^irginia, but can- not be effective in any other state without the latter's consent ; and no state is likely to consent to such an invasion of its sov- ereignty. Hence process from a Virginia court cannot operate as personal service when served on a defendant in another state. , But when properly served on the defendant within the home state, the court acquires jurisdiction in personam. It is a fundamental principle that without such jurisdiction in personam no valid per- JURISDICTION — IN REM. / sonal judgment or decree can be entered against any defendant. Such a proceeding would be without due process of law.^ § 17. (2) Jurisdiction in rem. — Where jurisdiction of the person is thus lacking, but the subject matter of the litigartion is within the state, and therefore subject to the process of the court, the court is then said to have jurisdiction in rem, or quasi in rem. In order that this jurisdiction may be efifectively exercised, it is essential to due process of law that the proceeding be pri- marily in rem or quasi in rem, and not merely against the de- fendant oersonally. Such a proceeding must be directed specific- ally against the property itself, with the purpose of having the res directly afifected by the decree of the court. Examples of such proceedings are : suits to enforce subsisting liens, such as mortgages, mechanics' liens or judgments ; suits to remove clouds from title to property ; suits to recover possession of nrooertv, or to establish or enforce a trust therein ; attachment proceedings, etc.® § 18. The same — order of publication. — In cases such as these (i. e. in rem), where there can be no personal service by reason of the defendant's non-residence, the statutes of all the states permit citation of the defendant by publication of the summons in a prescribed newspaper, or (as in Virginia) by per- sonal service in the foreign state. '^ § 19. Order of publication — effect of the decree. — It has long been settled that no personal judgment or decree can be had against a non-resident, or against any defendant beyond the ter- ritorial jurisdiction of the court, on summons served by publica- tion, or personally served beyond the limits of the home state, unless the defendant voluntarily appears and submits to the ju- risdiction. It is an equally settled principle that in a proceeding in rem, or quasi in rem, as described above, properly brought and conducted in accordance with the local statutes, the decree 5. Pennoyer v. Neff, 95 U. S. 714. e. Roller V. Holley, 176 U. S. 398, and cases infra. 7. Va. Code, §§ 3230-3335. O EQUITY PLEADING AND PRACTICE. will effectually bind the res against which the proceeding is, but no further. It follows that if a non-resident owns property in Virginia en- cumbered by a mortgage or other lien, the creditor may enforce his lien against such property, on a summons by publication against the debtor. So, where there is no lien, but the creditor institutes proper attachment proceedings against his debtor's property within the jurisdiction, he may subject the attached property to his debt. But it is important to observe that the judg- ment or decree in such proceeding binds only the property actually proceeded against, and no other, and never the person of the de- fendant. The owner of property is presumed to be in posses- sion of it, in person or by agent, and when such proceedings are taken against his property the defendant is presumed, for the purposes of that suit, and so far (and so far only) as that par- ticular property is concerned, to have notice of the proceedings when summoned by order of publication.^ 8. Pennoyer v. Neff, 95 U. S. 714; Roller v. Holley, 176 U. S. 398. CHAPTER III. VENUE, OR PLACE OF SUIT. § 20. Venue statutory. — The venue or place of suit, within a particular state, is always a matter of statute law. In Virginia detailed provision is made with reference to the particular county or corporation in which suits may be brought. \ § 2r. Venue of chancery suits in Virginia. — We cannot here go into the detailed provisions of the statute, but must be content with a bare outline. The statute provides that "any ac- tion at law or suit in equity," except where it is otherwise specially provided, may be brought in any county or corporation: (1) Wherein any of the defendants may reside. (2) If a corporation be a 'defendant, (a) where its principal office is; or (b) wherein the mayor, rector, president or other chief officer resides. (3) If it be to recover land, or to subject it to a debt, then the proceeding may be in the county or corporation wherein such land, or any part thereof, may be. (4) Special provision is made for suits against insurance com- panies, foreign corporations, non-residents, and suits in which the commonwealth or certain public officers are parties defendant. (5) It is further provided that an "action" may be brought in any county or corporation wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein.! As § 3214 in express terms refers to "actions at law and suits in equity," and as § 3215 is careful to refer to "actions" only, it is not entirely clear that suits in equity are within the purview of the latter section. ^ 1. Va. Code, 3314, 3215. 2. See 5 Va. Law Reg. 46; 2 Va. Law Reg. 476. 9 10 EQUITY PLEADING AND PRACTICE. § 22. The same — provisions cumulative. — It is important to observe that the several provisions of this statute are cumula- tive, and not exclusive of each other. For example, a suit to sub- ject land to the lien of a judgment may be brought under provi- sion (1) "where any of the defendants reside," or under provi- sion (3) "wfhere the land may be." ^ § 23. Venue of injunction suits. — Under Virginia Code § 3436, amended by Acts of 1902-3-4, p. 572, the venue of injunc- tion suits depends somewhat upon the purpose of the injunction, (a) If the purpose be to enjoin a judgment or judicial proceed- ing, the suit must be brought in the court in which the judgment was rendered or such proceeding is pending — with certain ex- ceptions, (b) Where the purpose is to enjoin some other act or proceeding, it is to be brought in the county or corporation where the act or proceeding is to be done, or is doing or apprehended. These provisions refer to cases where the jurisdiction is as- serted only for purposes of injunction — i. e. a pure bill of in- junction. If the court have jurisdiction on other grounds, and the injunction is merely ancillary to the relief sought, then the suit may be brought in any of the localities mentioned in the fore- going section.* § 24. The same — preliminary injunction. — The jurisdic- tion thus fixed has reference not to the court that may grant the preliminary injunction in limine, but to the court which is finally to hear and determine the injunction proceedings. By another section of the Code, jurisdiction to award preliminary injunc- tions is conferred upon every judge of a circuit or corporation court in the state, regardless of the residence of the parties, or the locality of the proceedings or other thing sought to be en- joined.^ 3. Harrison v. Wissler, 98 Va. 597; 6 Va. Law Reg. 471. 4. Muller v. Bayly, 21 Gratt. 531; 6 Va. Law Reg. 720; Baker v Brjggs, 99 Va. 360; Acts 1899-1900, p. 996. See Bills for Injunction, post, ch. xxvii. 5. Va. Code § 3437. MISTAKE IN VENUE. 11 § 25. Mistake in venue. — If suit be instituted in any county or corporation contrary to the foregoing regulations, the objection will be, in general, not that the court in which the suit is thus er- roneously brought is without jurisdiction, but merely that the •defendant is thereby deprived of the personal privilege of having the suit brought and tried in some other locality. This objection, then, goes rather to the venue than to the jurisdiction — or, other- wise expressed, the objection goes to the active and not to the potential jurisdiction. It is an objection, therefore, that may be waived, as already shown, and, as a general rule, is held to be waived unless the defendant pleads in abatement at an early stage •of the proceeding." This is what is meant by the Virginia statute when it declares that "where the bill shows on its face proper matter for the jurisdiction of the court" — that is, if the case made in the bill Tdc of the kind or class embraced within the potential jurisdiction of the court — "no exception for want of such jurisdiction shall be allowed unless it be taken in plea in abatement." '^ We have already seen that where potential jurisdiction is lack- ing this statute has no application, and objection may be made at any stage of the proceedings. § 26. Venue continued — in the Federal courts. — The par- ticular locality in which suits in the Federal courts are to be brought is fixed by the Federal statutes. For the details of these statutory provisions, reference must be had to the statutes them- selves. For general purposes of venue, however, it may be said that the Federal Judicial Code distinguishes between cases in which the jurisdiction is based on the ground (1) of diverse citizenship. G. In re Moore, 209 U. S. 490. A different principle applies where a new right is given by statute, and a particular court or a limited venue is prescribed for the enforcement of the right. Here the right and the remedy go together, and the question of venue becomes one of jurisdiction. Pulaski County z'. Stuart, 28 Gratt. 872. Cf. Coleman V. Virginia Stave Co., 1112 Va. 61, 75. 7. Va. Code § 3260; Jones v. Jradshaw, 16 Gratt. 355; annotation to § 3260, Pollard's Code. 12 EQUITY PI correct mistakes ; for in- junctions; for partition; for relief from penalties and for- feitures; creditors' bills; bills for discovery, etc. § 287. Some of these more in detail. — A few of the suits named have been selected for a more or less detailed study of the proceedings, with special emphasis on related questions of prac- tice likely to make difficulty for the young practitioner — namely : /. Bills for Injunction. II. Bills for Partition. III. Bills for Divorce. IV. Bills for Sale of Lands of Infants and Lunatics. V. Creditors' Bills. 136 CHAPTER XXVII. I, INJUNCTION SUITS. § 288. Grounds of injunction. — The circumstances under which rehef by injunction will be granted, belong rather to the topic of equity jurisprudence than to that of equity procedure. The Virginia Code ^ enumerates a large number of instances in which injunctions may issue — most of these declaratory of the common law. § 289. Preliminary injunctions — "restraining orders." — Some of the courts make a distinction between a preliminary (or temporary) injunction and a restraining order — the latter contemplating a less extended stay than the former, and resorted to only in cases of great emergency. The restraining order is usually, in terms, limited to a very brief period fixed in the order, and the plaintiff is required in the meantime, to give notice to the defendant of his intention, within the period named in the order, to apply for a temporary injunction. ^ § 290. Preliminary injunctions — notice. — By the unwrit- ten law, the question whether the defendant is entitled to notice of the application for a preliminary injunction rests in the sound discretion of the court or judge to whom the application is made. Whether such notice should or should not be required depends on the special circumstances of each case. Justice requires that such notice should be given, if practicable, unless the emergency does not permit, or unless there be reason to apprehend that the de- fendant, by being put on notice of the application, will be able to defeat, and will probably defeat, the very purpose for which 1. Passim — see title Injunctions in index, and Chapter 168. 2. Provision is made for such restraining orders {sub nom. injunc- tion) by Va. Code § 3435a, with sundry provisions for enlarging or vacating them. Equity Rule 73 makes like provision for such or- ders in the Federal courts. See infra, § 291. 137 138 UQUITY PLEADING AND PRACTICE. the injunction is sought. The Federal Equity Rule stated in the section following seems a concise and accurate statement of the unwritten rule. The question of notice in such cases is regulated in many states by statute. In Virginia the statute is but declaratory of the un- written law. 3 § 291. The same — in the Federal courts — notice. — The Federal courts are prohibited from granting a preliminary injunc- tion without notice to the opposite party. ^ But a temporary re- straining order may be granted without notice where it "clearly appears from specific facts, shown by afifidavit or by the verified bill, that immediate and irreparable loss or damage will result to the applicant before ithe matter can be heard on notice." In such case "the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order." The opposite party, on two days' notice to the adversary, may appear and move the dissolution or modification of the order.^ § 292. Bill for preliminary injunction — affidavit to bill. — The Virginia statute, which seems in this respect but declara- tory of the unwritten law, forbids the awarding of an injunction in any case not ready for hearing, "unless the court or judge be satisfied, by affidavit or otherwise, of the plaintiff's equity." That is to say, the allegations of the bill must be sustained prima facie, either by affidavit or other sufficient evidence.® § 293. The same — jurisdiction to award. — In Virginia, preliminary injunctions, even in vacation, may be awarded by the judge of any circuit or corporation court in the state — regardless of the locality of the controversy or the residence of the parties.'^ But, as we have already seen, the suit is tO' be instituted and finally to be heard in the county or corporation where the act or 3. Notice may be required "if in the opinion of the court or judge it be proper that such notice should be given." Va. Code § 3440. 4. Equity Rule 73. 5. Id. 6. Va. Code § 3440. See Equity Rule 73. 7. Va. Code § 3437. See Receivers, post, § 380. INJUNCTION SUITS. 139 proceeding to be enjoined is to be done, is doing or apprehended — or, if it be to a judgment or judicial proceeding, then in the court that rendered the judgment or in which the proceeding is.^ § 294. The same — indemnifying bond. — The practice of all ■chancery courts, as a condition precedent to the granting of a temporary injunction, is to require that the plaintiff, or some one for him, shall execute a bond, with good security, conditioned to indemnify the defendant against all loss or damage which may be incurred by the defendant in case the injunction shall be dis- solved. ^ § 295. Preliminary injunction — how served. — Where the injunction is granted before service of the subpoina, as may be done in a proper case, a copy of the order is generally endorsed on or attached to the subpoena, and served by the sheriff along with the subpoena, the clerk certifying thereon that the required bond has been executed. § 296. Motions to dissolve preliminary injunctions — ^in vacation — aflftdavits. — As the plaintiff may, in a proper case, obtain a preliminary injunction in term or in vacation, the de- fendant has the like privilege, after reasonable notice to the ad- verse party, of moving to dissolve, in term or in vacation, and before the cause is matured for hearing.^" And, again, as the plaintiff may secure the injunction on affida- -iiits, so the defendant on his motion to dissolve, may be heard on counter-affidai/its. In such case, the defendant may use his sworn answer as an affidavit — but only as an affidavit, since the cause not having been matured, the answer, on the motion to dissolve, whether oath be waived in the bill or not, is not read as a pleading, nor as having the evidentiary value of a sworn answer under the •original equity practice. 8. Va. Code § 3436. For venue of such suits, see ante, § 23. 9. This practice is confirmed by the Virginia statute (Va. Code § 3442), except as to personal representatives or other persons from whom, in the opinion of the court, it may be improper to require "bond. 10. Va. Code § 3444. 140 EQUITY PLEADING AND PRACTICE. • § 297. Effect of dissolution. — Where an injunction is dis- solved after the maturing of the cause and a hearing on the mer- its, the order is final as to the vacation of the injunction- — un- less modified or revoked at some subsequent stage of the pro- ceeding, or reversed on appeal. ^^ But where the injunction is dissolved on a preliminary hearing, the court may, at the hearing on the maturing of the cause, grant or re-instate the injunction and make it perpetual. Hence, where the injunction is thus dissolved before the cause is matured, (or heard in vacation on the merits, in the absence of consent of parties, entered of record as required by the statute) ^^ the order is not final, and the court or judge may not at that stage of the proceeding dis- miss the bill. 13 § 298. Original jurisdiction in judges of Court of Ap- peals to award injunctions. — The Virginia statute i* provides that where a circuit or corporation court, or a judge thereof shall refuse to award an injunction, application may be made on the original papers, with a copy of the proceedings in court and with the judge's order of refusal, to a judge of the court of appeals who may thereupon award the injunction. Such order, when awarded by the appellate judge, is directed to the clerk of the lower court of the proper venue, and thereafter "the pro- ceedings thereupon shall be as if the order had been made by such (lower) court or the judge thereof." ^^ 11. Where the bill is a pure bill of injunction, the dissolution of the injunction on final hearing, calls as of course for a dismissal of the hill. Va. Code § 3446. Contra, of course, where the injunction is merely ancillary — in which case the dissolution of the injunction does not impair the court's jurisdiction to grant other equitable re- lief sought by the bill. Pulliam v. Winston, 5 Leigh 324. 12. Va. Code § 3437. 13. Mount V. Radford Trust Co., 93 Va. 437. 14. Va. Code § 3438. 15. Id., § 3439. The effect of this statute was the subject of a somewhat acrimonious discussion by the majority and minority of the judges in Wilder v. Kelley, 88 Va. 374. The dissenting opinion of Lewis, P. (concurred in by Fauntleroy, J.), seems the only pos- sible interpretation, viz. that when the appellate judge grants the in- junction he acts not in an appellate capacity, but as the judge of an- other court of co-ordinate jurisdiction. This seems plain from the- language of the statute as quoted above. INJUNCTION SUITS. 141 Bill to enjoin legal proceedings. § 299. Bill to enjoin proceedings at law — requiring confession of judgment. — Where defendant at law files a bill in equity to enjoin proceedings at law, the court may put him on terms of confessing a judgment ,at law, as the price of its as- sistance. This is largely a matter of judicial discretion. § 300. The same — (a) When such confession may be required. — If it appear from plaintiff's bill that the defendant (plaintiff at law) has a good equitable defense only, then, on his motion for a preliminary injunction against the proceeding at law, fairness to the defendant (plaintiff at law) seems to re- quire that plaintiff in equity should confess judgment at law — subject, of. course, to the control of the court in the injunction proceedings. If the plaintiff in equity succeeds in making out his equitable defense at the hearing, the court will enter a perpetual injunc- tion against the judgment, and no harm will have resulted from the confession. If, on the other hand, the plaintiff in equity fails to make out his equitable defense, thus calling for a dis- solution of the injunction and a dismissal of the bill, the con- fession of judgment, previously required, saves the plaintiff at law from harm by reason of the injunction — since it not only renders unnecessary further proceedings at law, but it leaves the plaintiff at law where he would have been had the injunction not interfered. Here the court has merely applied the maxim that "he who wants equity must do equity." It has required the plaintiff in equity, as the price of its assistance, to put his adversary in a position where as little harm as possible will result from the preliminary injunction, in case it be finally dissolved. § 301. The same — (b) When confession not required. — But where the defense at law is not equitable only — where the plaintiff in equity denies his adversary's right to recover in any forum, legal or equitable, and the application for relief in equity is only because, under all the circumstances, equity is a more appropriate tribunal in which to conduct the litigation — then, no such terms as a confession of judgment will be ex- 142 EQUITY PLEADING AND PRACTICE. acted of the defendant at law, as the price of the court's as- sistance; since this might imperil his legal defense, in case he should fail to make out his equitable defense at the hearing; in other words, it "would not be safe," as the courts express it, to require a confession in such case. The peril to the defendant 'at law here arises from the fact that by the confession at law, he waives his legal defense — the confessed judgment being a finality — and must, therefore, stake his entire defense on the equitable relief demanded. Should this fail, he is left without any defense, though he may have a good defense at law. Without such confession of judgment, should the relief in equity fail, he is relegated to his legal de- fense, which he still may make. It is error, therefore, in such case, to require a confession of judgment. But where this has been erroneously required by the lower court, and the bill is subsequently dismissed and the in- junction dissolved for want of equity, the court should dissolve the injunction only on condition that the plaintiff at law with- draw his judgment and consent to re-open the case and to re- instate it on docket, so as to give the defendant at law oppor- tunity to try the case on its merits. And where the lower court refuses to do this, the decree will be reversed on appeal, and a proper decree to that effect entered by the appellate court. This was done in the case first cited. "^^ And even where the injunction order does not require a con- fession of judgment, yet, if the confession of judgment and the injunction are entered on the same day, the court of appeals will presume that the judgment was confessed, subject to the result of the equity proceeding." 16. Great Falls Mfg. Co. v. Henry, 25 Gratt. 575; Dudley v. Miner, 93 Va. 408. 17. Staples z\ Turner, 25 Gratt. 336. As to the jurisdiction in eq- uity to enjoin a judgment at law on the ground of newly discovered evidence, and the practice in such cases, see Wynne i'. Newman, 75 Va. 811. CHAPTER XXVIII. 11. PARTITION OF ESTATES. § 302. Equitable jurisdiction.! — The more convenient rem- edy afforded in equity for making partition of real property ^ has practically superseded former proceedings at law. § 303. Procedure. — The procedure in partition suits is by ordinary bill in equity, though to some extent regulated by stat- ute.3 § 304. Venue of suit. — Suit may be brought in any court of general equity jurisdiction in 'the county or corporation zvherein the land or any part of it lies^ 1. Parties. § 305. By whom suit brought. — The statute declares that "tenants in comnion, joint tenants and co-parceners shall be compellable to make partition; and any lien creditor or (of?) any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor, or the rents and profits hereof, to the satisfaction of his lien." Hence any of the parties named may maintain a bill for the purpose.' And a life-tenant of one moiety, with remainder over, may maintain a bill for partition of tl*e entire estate.® And a guardian may maintain such a suit on behalf of his ward.''' 1. Consult Virginia Code, 'Ch. 114; Freeman, Co-tenancy. 8. The statute makes provision also for the partition in equity of goods and chattels — by sale if necessary. 'Va. Code § 2569. 3. See Va. Code, Ch. 114. 4. Va. Code § 2653. Equity will not take jurisdiction of suits for partition of lands in another state. Pillow v. Southwest, etc., Co., 92 Va. 144, reported, with note by Judge Burks, in 1 Va. Law Reg. 66.S. 5. Id. § 2563. 6. Carneal v. Lynch, 91 Va. 114, 50 Am. St. Rep. 819. 7. Zirkle v. McCue, 26 Graft. 517. So plaintiff with legal title to the whole, 'but co-tenant of the equitable title with others, may have ' 143 144 EQUITY PI,EADING AND PRACTICE. § 306. Necessary parties on partition in kind — consort of co-tenant — ^lien creditors. — The question of necessary par- ties to partition suits will depend somewhat on the ultimate out- come contemplated. If the estate is to be divided in kind, clearly no interest of the consort of any co-tenant will be affected. On consumma- tion of the partition, the contingent marital right of curtesy or dower, formerly attached to the undivided interest, will, by mere force of the partition, attach to the parcel in severalty. And so, if there be separate liens or other charges on the undivided interest of any co-tenant, such liens or charges will ex propria vigore follow the parcel assigned to the debtor co- tenant in severalty. If, however, there be a paramount charge on the estate — as dower in the widow of the ancestor or grantor, — such widow should be made a party so that her dower may be assigned, and partition made of the residue.* § 307. Necessary parties continued — sale for partition — ^lienors. — Where, because of the inconvenience or impossibil- ity of making partition in kind, the estate is to be sold, the question of parties becomes more important, for courts of equity are averse in any case to selling real property otherwise than free of liens; and in order that there may be a sale free of liens, all lienors must become parties to the suit. Such lienors partition: Hogan v. Taylor, 110 Va. 9. And on bill for dower by the widow of a testator, one of the devisees may by cross~bill assert the right to partition, among the several devisees, and a sale if nec- essary, after assignment of dower: Kavanaugh v. Shacklett, 111 Va. 423. But where the plaintifif is not a co-tenant with the defendant — as where the defendant is in possession claiming the whole estate, and plaintiff claims an undivided interest through a wholly different source of title (a grant from the commonwealth) — a bill for partition will not lie, but the remedy is in ejectment. Preston v. Va. Mining Co., 107 Va. 245. See post, § 310. 8. Custis V. Snead, 13 Graft. 260. The same principle would seem to apply to any paramount charge, as a mortgage or other lien. See the following section. PARTITION SUITS. 145 should therefore either be made parties to the bill, or otherwise brought into the suit before decreeing a sale.^ § 308. The same — consort of co-tenant. — On similar principles it would seem that the consort of a co-tenant should be made a party, so as to bar the contingent marital right. But it appears to be a settled principle that where the statute per- mits a sale for partition, the contingent marital interests of dower and curtesy, by mere force of the statute, are divested by the sale, even though the consort be not a party to the proceed- ing 1" — and as to the wife's contingent right of dower, the rule is made statutory in Virginia. ii 2. Miscellaneous. § 308. Leases or alienations by one co-tenant. — Where one co-tenant has aliened his own undivided interest, or any part of it, such alienee will, of course, be made a party to the suit, and proper allotment made. So where there is a valid, paramount lease of all the interests, in the entire estate, or some definite portion thereof, the parti- tion or sale must be made subject to the lessee's rights. ^^ But since no one co-tenant can, without a proper agency, by his sole act of lease or alienation of the whole, or any definite por- tion, affect either the substantial rights of his fellows or their right of partition (in kind or by sale), it follows that any alienee or lessee of such co-tenant can claim no greater right than the grantor or lessor had ; and although he should be made 9. The statute makes provision for securing the rights of lien cred- itors: Va. Code § 2564. See Moon v. Highland Development Co., 104 Va. 551. 10. In analogy to condemnation proceedings. . The question is well discussed in Lee v. Lindell, 22 Mo. 202, 64 Am. Dec. 262, and Weaver V. Gregg, 6 Ohio St. 547, 67 Am. Dec. 355. See Freeman, Co-ten- ancy 411, 474. 11. Va. Code § 2564. The statute, and the cases in the preceding foot note, apply the rule to the wife only — but, 'by analogy, it must be equally applicable to the husband's inchoate curtesy. 12. Va. Code § 2568. —10 146 EQUITY PI,EADING AND PRACTICE. a party to the suit, the partition or sale may be made as if such alienation or lease had not been made.^^ § 309. Combining partition with other relief. — Under the liberal provisions of the Virginia statute, the appellate court has held that assignment of dower may properly be united with a prayer for partition, whether the two purposes be sought in the original bill or the prayer for partition be presented in the cross- bill." And in a bill for partition of a trust-estate, relief may prop- erly be prayed against a conveyance by the trustee to one of the co-tenants, alleged to be invalid because of fraud and the mental incapacity of the trustee. ^^ § 310. Trying questions of legal title in partition suit. — The Virginia statute i* declares that the court "in the exercise of such jvirisdiction may take cognizance of all questions of laiv affecting the legal title that may arise in any such proceedings, as well between tenants in common, joint tenants, and co-par- ceners, as others." This provision has been construed by the courts in most lib- eral spirit. While it is held that the right to a jury trial, on purely legal questions, cannot be taken away by extending the equitable jurisdiction, and hence that a partition suit may not be substituted for ejectment at law, yet that if the suit be properly one for partition, the court having jurisdiction for one purpose may proceed to give complete relief, even in matters of purely legal right. Thus, in Pillow v. Southwest, etc., Co.}'^ followed in Morgan v. Haley.i® it is held that if the defendant, though in ad- 13. Phillips V. Dulany, 114 Va. 681; Stark v. Barrett, 15 Cat. 370. 14. Kavanaugh v. Shacklett, 111 Va. 433. See Carneal v. Lynch, 91 Va. 114. Supra, § 306, n. 15. Seefried v. Clarke, 113 Va. 365. See also Laurel Creek, etc., Co. V. Browning, 99 Va. 5 — a suit for cancellation of lease and for partition. 16. Code § 2562. 17. 92 Va. 144 — reported, with an instructive note by Judge Burks, in 1 Va. Law Reg. 663. 18. 107 Va. 331. PARTITION IN KIND. 147 verse possession of the ivhole estate, is one who, in his own per- son or through his predecessors in title, was once a joint own^r zmth the plaintiff, or with his predecessors in title, the whole ques- tion of the legal as well as the equitable rights of the parties may be threshed out in the partition proceeding. 3. Partition in kind. § 311. The partition — where divisible in kind. — If the property be divisible in kind, any co-owner has the right to insist that the partition be so made. The majority of the co-owners in such case may not insist on a sale against the will of any of their fellows. 1" § 312. Partition in kind — how made. — The primary ques- tion in every suit for partition is zvhether a division in kind is practicable or not. That such a division is not practicable may be apparent from the character of the property as described in the pleadings, or made to appear from the testimony introduced. So it may appear from the testimony that partition in kind is prac- ticable. But where the question is not thus sett-led, it is usual to have an order of reference to special commissioners named by the court — usually three or five.^" and generally nominated by the parties — • to ascertain whether a partition in kind be convenient and prac- ticable, looking to the best interest of all the parties, or whether their interests will be promoted by a sale; and if partition be found practicable, to report to the court a scheme for dividing the estate as equally as possible among the several owners ac- cording to their respective interests. Equality here connotes not equality of area or acreage but of value. Subject to the approval of the court the commissioners may assign the designated parcels to the parties, respectively, or may fix the designation byVo^^i 19. Custis V. Snead, 12 Gratt. 260; Howery 7'. Helms, 20 Gratt. 1. 20. But this may be done through reference to a single master, if the court see fit, and no injustice appears. Phillips 2'. Dulany, 114 Va. 681. 21.- Cox V. McMullin, 14 Gratt. 82. 148 EQUITY PI and without notice to the defendant, in analogy to a preliminary injunction. Indeed, most of such orders would in fact be equivalent to an injunction — mandatory or prohibitory — if not so in form and substance. ii § 326. The bill. — The bill in a nullity or a divorce suit is drawn in much the same form as other bills in chancery. The features of special importance in such bills, to which the atten- tion of the young practitioner should be directed, are: (1) In divorce suits, an allegation of the actual marriage of the parties, with particulars as to the date, place, etc.; together with the maiden name of the wife. Divorce is necessarily pred- icated on a previous valid marriage. (2) The essential jurisdictional allegations,' already noticed. '^^ (3) In case the wife is {)laintiflf and suit money or alimony is desired, some account of the estate and income of the husband. (4) The number, names, sex and ages of the living infant children of the marriage. (5) The particulars of the matrimonial offense with which the defendant is charged, and which is asserted as a ground of the divorce sought. It is important that the circumstances and nature of the offense or offenses be charged with sufficient par- ticularity as to persons, time and places, to enable the defendant properly to prepare to meet the charges in his or her answer and to secure proper testimony in defense. 10. But apparently not before process issued — since the exercise of these powers seems, from the language of the statute, authorized only "pending the suit." Id. 11. The statutory provisions here enumerated are largely declara- tory of the unwritten practice. 2 Bishop, Mar. Div. & Sep. 462, 966- 992, 1100-1113. 12. Supra, § 321. 154 EQtJITY PI^EADING AND PRACTICE. § 327. The same — continued — how adultery charged. — Thus, for example, where the gravamen of the bill is the adul- tery of the defendant, the allegations of time and place should be as specific as possible, and the name of the paramour stated, if known, and if unknown the bill should so allege.i^ § 328. Decree of divorce — permanent alimony — custody of children, etc. — The court has a wide discretion in the sen- tence of divorce, in making provision for permanent alimony to the innocent wife, for the custody and maintenance of the in- fant children, and for conserving the estate of the parties. i* And, even after final decree, on petition of either parent, the court may, from time to time, alter the decree so far as it con- cerns the custody maintenance of the children. ^^ 13. In justice to the defendant, naming the paramour, if known, seems clearly essential; and the soundness of the rule is not doubted, in spite of dicta to the contrary in Miller v. Miller, 92 Va. 196, and Farr v. Farr, 34 Miss. 597, 69 Am. Dec. 406, and perhaps a few other cases, based on the suggestion that as the alleged paramour is not a party to the suit, and has no opportunity to be heard, the reputation of an innocent person might thus be scandalized. But this suggestion was anticipated long before by Dr. Lushington in Croft v. Croft, 3 Hag. Ecc. 310 (5 Eng. Ecc. Rep. 120), in the statement that "justice must be done to suitors, so that it is impossible to exclude" [from the pleading] "matter which ought to be admitted in evidence because incidentally it may afifect the character and involve the conduct of those who are not parties to the suit.'' Mr. Bishop declares the' name of the paramour, if known, "the very gist of the description" of the adulterous acts charged. 2 Bishop, Mar. Div. & Sep. 1333. See Id. 1326 (form of allegation), and 576. See Wood v. Wood, 2 Paige 313; Marsh v. Marsh, 6 N. J. Eq. 391, 84 Am. Dec. 164; Starke, 2 Va. Law Reg. 69 (excellent discussion). As the name of the para- mour, if known, must necessarily be brought out in the testimony, the privilege of omitting it from the bill is, after all, an illusory protec- tion to the paramour at the expense of the defendant — thus present- ing the anomaly of the judicial sacrifice of the rights of a litigant, in a vain effort to protect the reputation of a stranger. 14. Va. Code, § 2263. Alimony to a husband out of the wife's es- tate was probably unknown to the common law. 2 Va. Law Reg. 308, 857; 3 Id. 60. The language of the Virginia statute cited seems broad enough to permit it in a proper case — if such a case should ever be presented. 15. This statute is likewise largely declaratory. See 1 Bishop, Mar. Div. & Sep. 1385-1392; 2 Id. 993-1037, 1115-1224, and passim. CHAPTER XXX. IV. SALE OF LANDS OF PERSONS UNDER DISABILITY. § 329. Equitable jurisdiction — statutory. — Whatever may be the rule in the case of lands of lunatics and persons non compotes, by the great weight of authority courts of equity have not inherent jurisdiction to sell, exchange, or incumber the lands of infants, unless the same are held in trust. In the latter case, under its long established jurisdiction over trusts generally, there can be no doubt of the ample power of equity to sell or other- wise deal with the trust estate, whether belonging to infants or adults. 1 Inasmuch as the welfare of infant owners of land often re- quires a sale or other disposition, statutes exist in probably all of the states conferring the necessary jurisdiction. As the proceedings are, in general, statutory, the nature of these proceedings depends in large measure on the terms of the particular statute under which they are brought. But as the purpose of these statutes is everywhere the same, and the temp- tation the same for dishonest persons to take advantage of these helpless persons, much similarity of procedure will be found to exist in the several states. In Virginia, statutes make detailed and carefully guarded pro- visions for the sale, lease, exchange or incumbrance of the lands of both infants and lunatics — including special provisions with respect to timber, coal, gals, oil, etc., on such lands. § 330. The same — Virginia statutes — purposes of sale, etc. — The statutes contemplate two purposes for which the ju- risdiction in question may be exercised, namely, ( 1 ) where it is to the interest of the infant or lunatic that the property be con- verted into money for purposes of reinz'estment — or exchanged for other property — or incumbered for the erection of buildings 1. Shirkey r. Kirby. 110 Va. 455. 155 156 EQUITY PLEADING AND PRACTICE. or Other improvements thereon;^ and (2) where it is to the interest of the infant or lunatic that the property be sold for the purpose of expending the proceeds for the maintenance of the lunatic or his family, or for the maintenance and education of the infant.^ In brief, the first provision contemplates a mere change in the form of the investment — while the second contemplates the ex- penditure of the proceeds (that is, the principal or a portion thereof) for the benefit of the infant or lunatic. § 331. Sale of lands of infants, etc., continued — nature of estate.— The statute in express terms is applicable to estates of every character — the language being "whether the estate of the minor, insane person or of any of the persons interested, be absolute or limited, and whether there be or be not limited thereon any other estate, vested or contingent." * § 331a. The same — limited estate in infant — absolute estate sold. — Where the estate of the infant in the subject- matter is a limited one, or is not a sole and absolute estate, the 2. Code, Ch. 117; Acts 1902-03-04, p. 842. 3. Va. Code, §§ 1703-1705, § 2609. 4. Id., § 2616. Reference may be here made also to §§ 2433-2436 authorizing the sale of contingent estates, whether of infants or adults; § 2564 with respect to partition of estates, whether of infants or' of adults; § 3641, sale of infant's homestead; §§ 2436a-2436b authorizing life-tenants to maintain suits for a sale of the entire estate for a rein- vestment of the proceeds, whether the remaindermen be infants or adults, and whether the remainders be vested or contingent — held unconstitutional as to the involuntary sale of vested remainders belong- ing to persons sui juris: Curtis v. Hiden, 117 Va. 289; 7 Va. Law Reg. 544; §§ 2623-2624, authorizing the zvife of an infant or insane hus- band, whose lands have been sold by decree under chapter 75 or chap- ter 117 of the Code, to unite in the master's conveyance to release dower or other interest, with provisions for securing proper compensation for the interest so released; § 2625 giving jurisdiction to courts of equity to provide for releasing cuirtesy of insane husband, or dower of insane wife, where the sane consort desires to sell his or her real es- tate; § 2618a, validating proceedings for the sale of infants' lands here- tofore made to bona fide purchasers, though the required answers by infants under fourteen years of age were not filed, as required. sale; of infants' lands. 157 powers of the court are not confined to a sale simply of the infant's interest in the estate, but the court in such proceeding may sell the absolute estate, though it may thus be disposing of the estate of adults as well as that of the infant.*^ 1. Outline of the procedure. § 332. The same — outline of the procedure. — The sub- joined outline will indicate the chief features which must char- acterize the proceedings under these statutes. ^ And as most of these provisions are mandatory, as presently to be shown, it be- hooves the young practitioner to give them his careful attention. § 333. (1). Venue of suit. — Suit must be brought in the circuit or corporation court of the county or corporation where the land, or some part of it, lies. Since this is a purely statutory proceeding, under a statutory jurisdiction, and since, as will appear later, any material de- parture from the statutory requirements will oust the jurisdic- tion, the opinion may safely be expressed that the jurisdiction here cannot be exercised by the court of any other county or corporation than as here prescribed. Here venue and jurisdic- tion seem coterminous.^* § 334. (2) Proper plaintiff. — The suit may be brought only (1) by guardian of the infant, or the committee of the lu- natic,® unless the property be held in trust, in which case suit may be brought by (2) the trustee, or (3) by any person inter- ested in the estate.'' 4a. Faulkner v. Davis, 18 Gratt. 652; Rhea v. Shields, 103 Va. 305, 309-310. 5. Proceedings for the sale of the lands of insane persons for maintenance, etc., under §§ 1703-1705, are somewhat less formal. 5a. As to process against infants and lunatics, and appointment of guardian ad litem, see ante, §§ 34-35. 6. It should be noted that the guardian or committee does not sue in the name of the infant or lunatic, but in his own name, as guardian or committee. 7. The latter clause would seem to confer the right on the infant (by his next friend) or the lunatic (by his committee) in the case the estate be in trust. 158 EQUITY PI^EADINC AND PRACTICE. § 335. (3) Necessary allegations and characteristics of the bill. — The bill must show that it is brought (1) by the praper plaintiff, (2) against the proper defendants ; must (3) de- scribe the property to be sold, leased, exchanged or encumbered ; must state (4) the character of the infant's or insane person's holding — whether in trust or otherwise, and whether as sole owner or jointly with others named, and whether for life, in remainder, vested or contingent, or in absolute estate — (5) the purposes to which the proceeds of the sale or encttmbrance are to be devoted; (6) must state "plainly all the estate, real and personai belonging to such infant or insane person, or so held in trust;" and (7) "all the facts calculated to show the propriety of the sale, exchange, encumbrance or lease"; (8) must indicate and make parties all those who would be the heirs or distributees of the infant or insane person if he were dead; (9) it should further allege that the rights of no person will be violated by the decree sought; and finally (10) the bill must be verified by the oath of the plaintiff fi § 336. (4) Verification of bill. — Ordinary bills in chan- cery require no verification — or, in the few cases where required, the verification may usually be made by any person cognizant of the facts. Here, however, to indicate good faith on the part of the plaintif? in his capacity as representative of the infant or in- sane person, the bill must be verified by oath of the plaintiff,'^ and no substitute is permissible. 8. The reasons for requiring these details are obvious. The plain policy of the statute is that there shall be no conversion, complete or partial, or the real property of those who are under guardian- ship and unable to care for their own interests, except where such conversion is clearly to their interest. In order to determine this vital question, the court must be advised of all the circumstances sur- rounding the infant or lunatic and his estate, so as to be able intel- ligently to consider the whole situation, and afford complete pro- tection to all parties concerned. Hence the detailed information called for. 9. In Lancaster v. Barton, 92 Va. 615, it was held that an affidavit which failed to show that it was made by the plaintiff, might be supplemented by proof aliunde, in a collateral attack on the decree of sale. See also Durrett v. Davis, 24 Gratt. 302, 310-311. sAi^i; OF infants' lands. 159 § 337. (5) Proper parties defendant. — Not only must the infant or insane owner (when not a plaintiff as he may be where the estate is held in trust i") and all other persons having a direct interest, be made parties defendant, but also all those who would be his heirs or distributees if he were deady^ § 338. The same — infants as heirs of each other. — It not infrequently happens that several infants are interested in the same property, and having the same guardian or trustee, a single suit is brought in behalf of all. When such infants are brothers and sisters whose parents are dead, and who would therefore be heirs and distributees of each other, question arises whether the terms of the statute are complied with by making the infants sole defendants, or whether it is necessary also to make parties defendant those who would be the heirs or distributees of all the infants, if all zoere dead. Since one purpose of the statute in requiring the presence of the prospective heirs or distributees is that the infant parties may have the benefit of the oversight and protection of the former, and to prevent unfair advantage being taken either of the real owners, the infants, or of the pos- sible and contingent owners, the heirs and distributees, it is at least advisable, in the absence of judicial sanction for the con- trary practice, to make parties defendant all those who would be heirs or distributees of all of the infant ozoners if all were dead. The statute plainly contemplates two classes of defend- ants: (1) The infant or infants interested in the first degree, as the real parties in interest, and (2) those interested in the second degree, as prospective heirs and distributees. The stat- ute uses the term "infant," in the singular number, "all of those who would be his heirs, etc., if he were dead;" but it seems to 10. Supra. 11. Since the infant is incapable of making a will of realty before majority, and the insane person is wholly incapax testandi, the pro- spective heirs and distributees have a special (if not anxious) inter- est in maintaining the integrity of the estate. It is eminently proper, therefore, for the safeguarding of their own interests, as well as those of the infant or insane person, that these kindred should be made parties and given opportunity to be heard. 160 EQUITY PLEADING AND PRACTICE. contemplate this application to a plurality of infants as well — "all those who would be their heirs, etc. if they were dead." ^^ § 339. (6) Guardian ad litem. — Before any steps are taken in the suit there must be a guardian ad litem appointed for the infant defendants. i* § 340. (7) Required answers.— There must be the fol- lowing answers — and their presence in the record is mandatory: (a) Answer of the guardian ad litem in proper person, and on oathM (b) Answer of the infant, by the guardian ad litem, and (by the safer practice) under oath of the latter.i^ 12. Where father and mother, as trustees, are plaintiffs, they are properly in the suit as heirs and distributees of their infant children. Lancaster v. Barton, 92 Va. 615. 13. As to his appointment, service of process, etc., see ante, § 34. He has no power to make admissions, whether in pais or of record, which will bind the infant. He may not consent to a decree on the merits, or waive proofs. Infra, § 341; Dangerfield v. Smith, 83 Va. 81, 91; Waterman v. Lawrence (Cal.), 79 Am, Dec. 313. But he may consent to mere matters of procedure not affecting the substantial rights of the infant — as by consent to a hearing in vacation, etc. Kingsbury v. Buckner, 134 U. S. 678, 681; Lemmon v. Herbert, 92 Va. 653. 14. The various oaths required in these proceedings being demanded by the statute, are not the subject of, waiver. The purpose of re- quiring an answer in proper person from the guardian ad litem (an in- novation in the equity practice) is to have an expression of his per- sonal knowledge of the facts alleged in the bill, and of the circum- stances surrounding the infant, and of his judgment as to the pro- priety or impropriety of the sale or other object sought by the bill. The purpose of the oath is not to afford evidence (as the case must be proved independently of the pleadings) but to guarantee good faith on the part of the guardian ad litem. 15. The statute does not in terms call for this answer, but as it is not usual or necessary in this state to serve process on infants, without such an answer the infant would not properly be a party to the suit — since he becomes a party in such case only by the filing of an answer in his own name by his guardian ad litem. The oath here is not in terms required — but, as the rules of the forum require SALE OF infants' lands. 161 ( c) If the infant be over fourteen years of age : ^^ Answer of the infant ■/'// proper person, and on oath. § 341. (8) The evidence— depositions. — The necessary facts must be proved by testimony of witnesses Independently of any admissions in the answers. No depositions may be read unless taken in the presence of the guardian ad litem, or on in- terrogatories agreed upon by him.^'^ § 342. (9) The decree.— "If it be clearly shown," de- clares the statute, "independently of any admissions in the an- szvers, that the interests of the infant, insane person, or bene- ficiaries in the trust, as the case may be, will be promoted, and the court is of opinion that the rights of no person ivill he vio- lated thereby, it may decree a sale of said estate, or any part thereof," etc.^'* all answers to be verified, caution suggests that it be not omitted. See curative statute, § 2618a, indicating the necessity for such an- swers in the future. 16. This is a wise provision, giving the infant himself opportunity, after he has presumably reached some degree of mental maturity, to express his own judgment and wishes with respect to the proposed conversion of his property. If the infant be beyond the limits of the commonwealth, .or insane. Of confined in a reformatory or prison, the answer in proper person is not necessary. Acts 1904, p. 117. 17. See Coleman v. Virginia Stave Co., 112 Va. 61, and Wheeler v. Thomas. 11 (> Va. 2.59, where the decrees were held void and subject to collateral attack, for a violation of the fundamental rule that the essential facts of a case, and particularly in these proceedings, may not be established by ex parte affidavits. .Mfidavits were rejected also in Smith v. White. 107 Va. 616. The requirement here that the depositions must be taken in the presence of the guardian ad litem is not applicable to other suits in chancery in which there are infant parties. It is peculiar to the proceedings here under investigation. Moore v. Triplett, 96 Va. 60o.. The requirement oT the guardian ad litem's presence here is an ad- ditional safeguard against wrong to the infant or lunatic — in that it at least brings home to the guardian ad litem the nature of the tes- timony to be submitted, and if he be faithful to his trust the testi- mony will be more thoroughly sifted. • 18. Va. Code § 2620. It is to these inquiries that the testimony will mainly be directed. The necessary facts may be- established ^11 162 EQUITY PI^EADING AND PRACTICE. § 343. (10) The sale. — It is provided that the guardian ad litem, or the committee (of the insane person), or the trustee, shall not become purchasers or lessees, directly or indirectly.^® § 344. (11) The proceeds. — Careful and minute provi- sions are made for the safe reinvestment or other proper dis- position of the proceeds of sale, under the supervision of the court. The proceeds, representing as they do the corpus of the infant's real property, do not pass into the hands of the guardian, but are managed by a receiver or other person appointed by the court for the purpose, who is required to give ample security for the faithful discharge of his duties.^" either by a reference to a master to ascertain and report them, or by depositions properly taken and read by the court. The statutory rule that a master's report must lie ten days for exceptions, is held (on not entirely satisfactory reasoning) to have no application to this proceeding. Lancaster v. Barton, 92 Va. 615. It is scarcely nec- essary to suggest that the decree should plainly indicate that the required conditions precedent were fulfilled — namely: "It being clearly shown, independently of any admissions in the answers, that the interests of the infant defendant will be promoted by what fol- lows, and that the rights of no person will be violated thereby, the court doth adjudge, order and decree," etc. 19. Id. § 3621. As indicated in a subsequent section, though the interest of the incompetent be a partial or limited estate, the court may, and should ordinarily, decree a sale of the entire or absolute es- tate. Supra, § 331a. The court in such proceeding has jurisdiction to confirm a conditional sale of the property privately made on be- half of the beneficiary or beneficiaries, if satisfied by testimony, taken as required by the statute, that such sale is to the interest of the parties. Smith v. White, 107 Va. 616. 20. Id. §§ 2630, 2623. Where the proceeds of the interest of any infant are less than one hundred dollairs, the court may decree pay- ment thereof directly to the infant, or to one of the parents for his benefit: § 2622a. Should the infant or insane person die during non-age, or without recovering his sanity, such of the proceeds of his real estate sold under this chapter, or under chapter 114, as may remain at his death, are to pass to his heirs as if the fund were real property: § 2626. The provisions of § 2620, with reference to the repayment of in- cumbrances authorized by that section, seem to aflford quite inade- • quate protection to the lender — whose lien seems confined to the i increment of value produced by the improvements made, and subor- dinate to the right of the infant to demand, out of the proceeds of SALE OF INFANTS LANDS. 163 2. Interpretation of statute — When liberal — When strict. § 345, Interpretation of these statutory provisions— (1) liberal as to subject-matter. — As these provisions are meant to supply -a need for which the unwritten law did not provide, and are highly remedial in their nature, they are to be liberally construed in support of a clearly defined legfislative policy, so far as concerns the subject-matter of the several statutes.^i § 346. Interpretation continued — (2) strict as to pro- cedure. — In supplying a right which the common law did not afford, the legislature, in providing the proper machinery for its exercise, has been careful to place every reasonable safeguard around the helpless persons whose inheritaiTces are thus per- mitted to be aliened or encumbered without their concurrence, and who are without ability to protect their own interests. As a purely statutory right, it must, in accordance with the settled rule of construction, be exercised in substantial compli- ance with the statutory remedy — and any material departure from the procedure as prescribed by the legislature will render the proceeding not only voidable but z'oid, and therefore subject to collateral attack. The exercise of this jurisdiction by courts of chancery is not under their general equitable jurisdiction, but under a special, statutory and limited jurisdiction — and a fail- ure to exercise the power substantially as given will be fatal to the proceedings. -2 sale, an amount equal to the original value of the estate anterior to the execution of the incumbrance. Such an investment will scarcely prove attractive to careful investors. 21. Faulkner v. Davis, 18 Gratt. 651, 669-670; Rhea v. Shields, lO.S Va. 305; Coleman v. Virginia Stave Co., 112 Va. 61. 22. Williamson v. Berry, 8 How. (U. S.) 495; In re Valentine, 72 N, Y. 186; Battell v. Torrey, 65 N. Y. 396; Roche v. Nesters, 73 Md. 264, 7 L. R. A. 5.-}3; Coleman v. Virginia Stave Co., 112 Va. 61. See Rhea v. Shields, 103 Va. 305, 313 — a case in which the court found the trustee plaintifif and his counsel guilty of gross imposition upon the cestuis que trust cnt under cover of these statutes, but was unable to give relief because the proceedings were substantially regular, and the property had passed into the hands of bona fide purchasers. "The developments in this case" said Whittle, J., "accentuate the neces- 1''4 IiQUITY PLEADING AND PRACTICIi; ]l should be observed, however, that these statutes have in no wise affected the ancient jurisdiction of equity over tmst estates, even though held by infants. If, therefore, the estate be in trust, the jurisdiction to decree a sale when the interests of the beneficiaries require it, is not dependent on these stat- utes, which merely afford an additional remedy. Hence trust estates of infants or insane persons may be sold or encumbered under decree of the court of chancery without complying with the statutory proceedings. ^^a 3. The title of a bona fide purchaser. § 347, The same — how far bona fide purchasers pro- tected. — The principle here is well expressed by Buchanan, J., in Coleman z\ Virginia Stave Co. ; -•'' "While the purchaser at such a sale is not bound to investigate the truth of the matters stated in the bill and deposed to by the witnesses, touching the estate owijed by the infants, or as to the propriety of necessity of the sale, since his title cannot be affected because the case made by the record happens not to be warranted by the facts, (Durrett v. Davis, 24 Gratt. 302, 308), yet he is required to see to the regularity of the proceedings upon which the juris- diction of the court is founded (s. c.) ; for he is presumed to know that the infant until six months after his maturity has the right to show cause against the decree of sale, for errors upon the face of the record, or to show that the court had no iuris- ♦ ■ . . . diction to enter the decree, or, if it had jurisdiction, that the proceedings were irregular and not binding upon the parties, or that the case made by the record did not warrant the decree." -* ,sity for the exercise of such vigilance on the part of trial courts, in dealing with this class of cases, as will render the recurrence of sim- ilar results impossible; otherwise a benign statute speciallj- enacted for the protection of the unfortunate may be converted into an in- strument for their destruction." 22a. Shirkey v. Kirby, 110 Va. 4.).5, -l.iT. Sed qncrc. 23. 113 A^a. .61, 77, 24. In this case there was almost a comedy of errors — though to the purchaser, who lost both his purchase-money and the property purchased, it was more nearly a tragedy. The bill failed to men- tion what other property the infants owned, there was no answer by the guardian ad litem in proper person, and affidavits instead of dep- SAI.E OF INFANTS LANDS. lf)5 § 348. Right of infant to show cause against the de- cree. — Under a long-settled rule of the chancery courts, infants have six months after attaining their majority within which tn assail the validity of decrees affecting their rights — a privilege which formerly it was error not to reserve to them on the face of the decree, but now reserved to them by statute in Virginia, even though omitted from the decree.-" § 349. Special statutory protection of purchasers — sale six months after decree. — By special statutory provision in Virginia, if a judicial sale be made after six months from the date of the decree, and the sale be confirmed, though such de- cree be afterwards reversed or set aside, the title of the pur- chaser is not affected by such reversal; "but there may be a restitution of the proceeds of sale to those entitled." -''■ This statute is applicable to sales of the lands of persons iinder disabilities, discussed in the foregoing sections ; and when pre- caution is taken to await the expiration of six months before making the sale, purchasers are assured of their titles, though the infant may afterwards succeed in having the decree re- versed. ^'i' ositions were resorted to to show the propriety of the sale. For these and other irregularities, the decree was successfvillj' assailed by one of the infants, in an independent suit against the purchaser of the property — the court holding that the decree was void. The case of Wheeler v. Thomas, 116 Va. 259, illustrates even greater ir- regularities, with like fatal results. 25. Va. Code § .S424. The cause or causes which may thus 1)C shown as against a bona fide purchaser of the property sold under the decree, are indicated in the foregoing section — and are confined, in the main, to matters affecting the jurisdiction of the court, the regularity of the proceedings, and the good faith of the purchaser, and always to matters existing at the time of the decree of sale, and do not extend to circumstances subsequently arising. Durrett v. Davis, 24 Gratt. 302; Zirkle v. McCue. 26 Graft. 517, 537; Lancaster v. Bar- ton, 93 Va. 623; Coleman v. Virginia Stave Co., 113 Va. 161. 26. Va. Code § 3435. 27. Cooper v. Hepburn, 15 Gratt. 551; Dixon v. McCue, 31 Gratt. 373; Lancaster v. Barton, 92 Va. 615. The effect is to substitute the proceeds of sale for the property sold, and to confine the subsequent litigation to these proceeds, and thus completely to protect the pur- chaser in his title. See Report of Revisors, Code 1849, p. 878. CHAPTER XXXI. V. CREDITORS' BILLS. § 350. Creditors' bills — distinctive feature. — The dis- tinctive feature of a creditors' bill is that its purpose is not, as in an action at law, to obtain a personal judgment or decree against the debtor, but specifically to charge the debtor's property. It is a settled principle both of law and equity (save where the rule is changed by statute, as has been done in a few cases — as in attachment proceedings), "that every debtor, until his property is specifically bound to the satisfaction of his debt by his own agreement or by some judicial or other legal proceeding, has an absolute right to dispose of it at pleasure; a power which no tribunal whatever has authority to control or limit. The obli- gation of a debtor is purely personal, and in no way affects his property or any portion of it. To this rule no solitary excep- tion can be found, nor can one exist, until the principles of our law are so changed as to authorize courts of equity to admin- ister the estates of living persons as if they were dead." i § 3 51. The same^-distinctive feature continued. — Since, therefore, one's property, in absence of his contract, or of a trust, or of statute to the contrary, can only be charged through his person, courts of equity refuse to entertain bills thus to charge a debtor's property, unless the debtor himself has already voluntarily charged it in favor of the creditor, or unless the charge grows out of a trust, or of ^ statute, or, in the absence of these, unless the creditor has proceeded against the person of the debtor at law, and has exhausted all his legal remedies against him. The usual proof required to establish the exhaustion of legal remedies is a judgment on which execution has been issued and returned no effects. 1. Green, J., in Tate v. Liggatt, 2 Leigh 84, 99-100. To the same effect, Carr, J., in Rhodes v. Cousins, 6 Rand. 209, 311. 166 creditors' bili^ — distinctive; features. 167 It follows that if the claims asserted in the bill are not al- ready specific charges upon the property of the debtor, there must be such judgment, execution and return. We may say, therefore, that the distinctive and essential fea- ture of a creditors' bill is that its purpose is, in general, (1) to subject the debtor's estate, or some part of it, to a specific and existing charge thereon — for the enforcement of which charge there is no convenient remedy at law; or (2), to obtain the aid of the court in subjecting to the satisfaction of the plaintiflf's judgment upon which execution has been issued and returned no efifects,^ the whole or some part of the debtor's estate, which, because of its equitable nature or otherwise, cannot be reached by execution at law.^ 2. By virtue of statute in Virginia (Va. Code § 3571) the lien of a judgment on real property may be enforced in equity without issu- ance or return of the execution. Price v. Thrash, 30 Gratt. 315: Sto- vall V. Border Grange Bank, 78 Va. 188. 3. See generally on the subject: Tate v. Liggatt, 2 Leigh 84; Spindle v. Fletcher, 93 Va. 186; Freedman's Bank v. Earl, 110 U. S. 710; Gates v. Allen, 149 U. S. 451; Guggenheimer v. Lockridge, :J9 W. Va. 457; note to Suckley v. Rotchford, 13 Gratt. 7:J (Va. Rep. Ann.); Flemming v. Grafton, 54 Miss. 79; 13 Cyc. 1; note 63 L. R. A. 673; note 90 Am. Dec. 388-300; Lile, Notes on Equity Jurispru- dence, 163 et seq.; cases infra. There has been diversity of opinion as to whether equity would assume jurisdiction of a bill by an execution creditor to subject choses in action or other equitable estate of a living defendant, where no trust was involved, and where, under the local statute, the lien of the judgment or of the execution did not extend to the chose, or to the equitable interest in question. The jurisdiction was repudi- ated in a learned opinion by Chancellor Walworth, in Donovan v. Finn, 1 Hopkins Ch. 59, reported with an annotation collecting the authorities pro and con, in 14 Am. Dec. 531. See Freedman's Bank V. Earl, 110 U. S. 710, contra. This case is discussed infra, § 360, n. 15. The question has become of less importance under the influence of modern statutes of attachment and garnishment, and statutes extend- ing the lien of judgments or executions practically to every prop- erty interest possessed by the debtor — thus removing question of the equitable jurisdiction in such cases beyond the field of debate. See Va. Code §§ 3567, 3571, 3601. 168 EQUITY PLEADING AND PRACTICK. 1. Bills by general creditors. ^ § 3 52. The same — bills by creditors at large — excep- tional cases. — While the rule is, as shown in preceding sections that creditors at large cannot be entertained in equity for the subjection of their living debtors estate to payment of debts, there are a. few exceptions as the result of necessity or of stat- ute. Thus, as indicated more at large in a subsequent section,* statutes in some of the states permit such creditors to assail vol- untary or fraudulent transfers of property by their debtor. It is held also that where a corporation is insolvent, and has been abandoned by its officers and agents, creditors at large may maintain a bill for the conservation of its assets and their apn plication to payment of debts. ^ It follows, save in exceptional cases, that creditors at large •* of a living person,'^ or of an existing corporation,* cannot main- tain a creditors' bill. § 353. Bills by general creditors, continued — assailing fraudulent conveyances. — In the absence of an enabling stat- ute, creditors at large cannot maintain a bill to assail convey- ances made by their debtor in fraud of creditors. If the claims are not already specific charges on the property, there must be judgment and execution returned nulla bona.^ i. Infra, § 354. 5. Finney v. Bennett, 27 Gratt. 365; Nunnally v. Strauss, 94 Va. 2'io. And so, where, by reason of the dissolution of the corporation no action at law can be maintained against it (in absence of an en- abling statute). Pullman v. Stebbins, 51 Fed. 30. And see Attach- ment in Equity, post, Ch. xxv. 6. That is, creditors who have not reduced their claims to judg- ment, or who are not otherwise in rem creditors. 7. Where the debtor is dead, all debts created in his lifetime nec- essarily become specific charges on his estate-^that is, in rem claims — since, they can no longer be asserted in personam. The jurisdic- tion of equity, therefore, to maintain creditors' bills for an account- ing from the personal representative and heirs, and the payment of the decedent's debts out of his estate, is unqiiestioned. 8. Va. Pass. & Power Co. v. Fisher, 104 Va. 121; Hollins i: Brier- field Coal Co., 150 U. S. 371. 9. Tate v. Liggatt, 3 Rand. 84 (full discussion) ; Cates i'. Allen, 149 U. S. 449 (federal equity jurisdiction declined, though authorized by state statute); Fleming v. Grafton, 54 Miss. 79. CREDITOKS" BILLS — I'AKItES. 16S1 In some of the states (among them Virginia and Mississippi) statutes have been enacted expressly authorizing creditors at large to maintain such suits. § 354. The same — fraudulent conveyances — the Vir- ginia statute. — By the \''irginia Code i" it is provided that creditors may file a bill to set aside voluntary or fraudulent con- veyances by their debtor, not only before obtaining judgments at law, but even before their debts have matured. The statute further fixes the priorities of the different cred- itors by declaring that the plaintiff shall have a lien from the time of bringing his suit ; and a petitioning creditor from the time of filing his petition (in court or in the clerk's office). But these priorities are declared conditioned upon filing notices of lis ' pendens in form and manner as the statute directs. ^^ 2. Proper parties. § 355. Creditors' bills continued — proper plaintiffs. — Any creditor whose claim presents the essential characteristics indicated in the preceding sections, may file a creditors' bill to subject any of the property of his debtor liable to be thus charged. Such a bill may be filed by a single creditor for his own ben- efit — or several creditors may unite in the same bill, howsoever disconnected their several claims, provided the claims are charge- able on the same estate — or. again, one or more creditors may file the bill "on behalf of themselves and all other creditors sim- ilarly situated, who may come in and contribute to the costs of the suit." Where the bill is thus filed on behalf of the plaintiffs and others who may come in, it is known as a general creditors' bill. But although filed on behalf of the plaintiffs only, if it appear that there are other creditors who are entitled to enforce spe- 10. § 2460. 11. For a more detailed notice of this statute, and for a form of lis pendens, see the author's Notes on Equity Jurisprudence, pp. 37 et seq.; 1 Va. Law Reg. 294. 170 EQUITY PLEADINC; AND I'UACTICE. cific charges upon the subject-matter, they will be permitted, and sometimes required, to come into the suit, which will then, so far as the proceeding is concerned, be treated as a general creditors' bill.'-i^ The reason for thus sanctioning the assertion of diverse claims in the same suit, in apparent violation of the strict and salu- tary rule of equity pleading that bills must not be multifarious — tantamount to a misjoinder at law — is, that the purpose of the creditors' bill is completely to administer the assets or estate against which the proceeding is directed, and hence all who are entitled to share in the distribution are proper, and in many instances necessary, parties to the suit.^^ § 356. The same — parties defendant. — As a general rule, it is not necessary nor, indeed, proper, to make other creditors parties defendant ; but the debtor himself, and all other persons having a legal or equitable interest in the estate sought to be subjected, other than creditors, are necessary or proper parties defendant. As we shall hereafter see, creditors not named in the bill may become parties by petition, or by proving their claims under the order of reference. Where, however, the legal title to the subject-matter is out- standing in one or more of such creditors, or in a trustee in his or their behalf, it is at least proper, and the better practice, to make such title-holder a party defendant — since the court must needs have control of the legal title, particularly where the sub- ject-matter consists of real property. § 357. The same — how other creditors become parties. — Creditors, not otherwise appearing as parties plaintiflf or de- fendant, may come into the suit either by petition, or by proving their claims before the master under the order of reference. It seems scarcely necessary to add that the right thus to come into the suit, after bill filed, is confined to those creditors whose claims are of such a nature that they might have been asserted 11a. See Order of Reference, infra, § 358. 12. Almond v. Wilson, 75 Va. 613; Freedman's Savings Bank v. Earle, 110 U. S. 710. creditors' BltlvS — PRIORITIES. 171 by original bill — save where under special circumstances the or- der of reference otherwise directs. Thus where judgment creditors of A, a living person, have instituted a creditors' suit to subject the debtor's real property, no creditor at large could assert his claim therein. 3. Order of reference — Priorities. § 358. Creditors' bills continued — order of reference. — In a creditors' suit' the court assumes the administration of the entire estate or fund on which the claims asserted are chargeable. For that purpose the cause is referred to a master for an account, if necessary, of the assets to be administered in the proceeding, the amount of the several claims charged or properly chargeable on such assets, and the respective priorities, if any, of such claims, together with such other facts and in- quiries as the court may direct, or the master deem necessary, for a proper disposition of the cause. We shall see something TTiore of the order of reference in a later section.!^ § 359. The same — distribution of proceeds — priorities. — So far as concerns creditors who have existing liens before bill filed (and, as before stated, cases are comparatively rare where the situation is otherwise), their priorities are in no wise affected as the result of the suit brought. Where, however, the plaintiffs' liens arise only by virtue of the suit, (as by attachment, or proceedings to set aside fraudulent conveyances under the Virginia statute referred to above) such liens are necessarily in- ferior to prior valid incumbrances. That is to say, if A has first lien and B second, the priority of these liens is not affected by the circumstance that C takes the initiative by filing a creditors' bill — whether C is already a lien creditor inferior to A and B, . or whether his lien accrues by virtue of his suit. Nor, doubtless, would the result have been otherwise had A, 13. Infra, §§ .S66-371. The Virginia statute requires the master to report delinquent taxes on the property of the debtor: Va. Code § .3397a. 172 EQUITY PLEADING AND PRACTICK. the superior lienor, instituted the suit on behalf of himself and other creditors similarly situated. i* But where there is no existing lien before bill filed, and the lien arises only out of the equitable consideration of the plain- tiff's vigilance and prior suit — as occasionally happens — then the question of priority becomes important. § 360. The same — priorities continued. — W here, as in the case last mentioned in the preceding section, the liens of the va- rious creditors arise only upon the filing of the bill or of the bringing of the suit,i' or otherwise asserting the liens, the rule is that the plaintiffs in the bill, as a reward for their vigilance in the discovery of the ec(uitable subject-matter, and their diligence in instituting the proceedings at their own expense and risk, are entitled to priority over all other creditors "similarly situated" — though still postponed, as before indicated, to creditors with p-rior existing liens. But if such plaintiffs (creditors at large) sue not for their own benefit only, but on behalf of other cred- itors in simili casu, thereby making the bill, at the outset, a gen- eral creditors' bill — then, having invited the other creditors to 14. Here A's invitation is in terms to other creditors "similarly situated" — and it would seem scarcely equitable to deem him to have waived any priority to which he was entitled, by an invitation in this form to other creditors. 15. These expressions are substantially synonymous under the gen- eral equity practice — since the filing of the bill and the issue of the snbhwna are usually contemporaneous steps; the filing of the bill, with prayer for sub^cena, being the only method of obtaining the sub- pcena. Hence the language of the books on equity procedure, and in the opinions of the courts, in declaring that the lien arises from the filing of the bill, connotes the bringing of the suit. It happens that in Virginia the issuing of the subpcena may precede the filing of the bill. In Wallace v. Trea,kle, 27 Gratt. 479, the court described the lien of the plaintiff-creditors at large as arising from the "filing of the bill,"^ (apparently overlooking the circumstance that the subpoena might have been issued months before) and thus, doubtless unintention- ally, creating a departure in Virginia from the accepted rule. To obviate any difficulty on this score, the Revisors have wisely provided by statute that the lien in suits to set aside fraudulent con- veyances shall arise from the "bringing of the suit." Va. Code S 2460. creditors' bills — PRIORITIES. 173 share the burden of the suit, the plaintiffs are held impliedly to have agreed to share the benefits also. Hence, in the latter case, all the creditors who come in, whether as original plaintiffs, or by petition, or under the order of reference, share pari passu in the proceeds. If' 16. In Wallace i'. Trackle, 27 Gratt. 479 — a case not clearly re- ported, — a single plaintiff appears to have sued on behalf of himself and of several other creditors specifically named — a very unusual pro- ceeding, and one probably not warranted by rules of equity plead- ing. The court appears to have treated all four as plaintiffs in the case. The suit was not a general creditors' suit, and its object was to set aside several conveyances made by the common debtor as a fraud on creditors. It was held that the fund should be applied: (1) to prior judgment liens, in the order of their accrual; (3) to the claims of the plaintiffs, arising from the filing of the bill: and (3) to claims of other creditors asserted later, by petition or under the order of reference, and in the order in which such claims were filed. The question whether the phrases "filing the bill" and "bringing the suit" are synonymous, is discussed in the preceding footnote. In Freedmans' Bank v. Earle, 110 U. S. 710, the opinion by Mr. Jus.tice Matthews contains a most instructive review of the history and present status of proceedings by creditors to reach the equi- table estate of their debtor. In that case the bill was filed by a judgment creditor to subject the equity of the debtor in real prop- erty incumbered by a prior deed of trust. Under the existing law of the forum (the District of Columbia) neither the judgment nor -the execution was a lien, legal or equitable, on the equity of re- demption, but (as held) such equity constituted equitable estate which the judgment creditor might subject in equity. The bill was not in form a general creditors' bill, but was filed sole!}' in the in- terest of the plaintiff; Other judgment creditors subsequently came into the suit, and sought to share the proceeds ratably with the plaintiff. It will be observed that this was a case wliere the lien arose only upon the filing of the bill. The court held that the proceeds of sale should be applied (1) to the existing lien under the deed of trust: and (2) to the plaintiff's judgment as a superior claim to the claims of those creditors who came later into the suit. "It is to be noted, therefore," said the court, in speaking of creditors' suits, "that the proceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like sit- uation, with whom he chooses to make common cause: and as no" specific lien arises by virtue, of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to be sifbjected to sale for that purpose, dates from the filing of the 174 EQUITY PI^EADING AND PRACHCE. On the other hand while no other than lien creditors can file a bill to wind up the affairs of an insolvent partnership, yet in- asmuch as the partnership affairs cannot be completely settled without payment of all the debts, so far as the assets are suffi- cient for that purpose, the order of reference will usually make provision for the proof of all firm liabilities, whether in judg- ment or not. And so in the case of the winding up of an insol- vent corporation. 1'^ These exceptions obviously arise from the necessities of the case. 4. Bffect of the order of reference. § 361. The same — general effect of an order of refer- ence. — Usually the first decree entered in a creditors' suit is one of reference to a master for an account of all property and assets properly chargeable with the claims asserted, and o,f the respec- tive amounts and priorities of such claims. Such an order operates as a declaration on the part of the bill. 'The creditor' says Chancellor Walworth, in Edmeston v. Lyde, 1 Paige 637, 640, 'whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance,' and it would 'seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful termination, should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no- longer be any risk in becoming parties to the suit.' As his lien be- gins with the filing of the bill, it is subject to all existing incum- brances, but is superior to all of subsequent date.'' See also the opin- ion of Chancellor Kent in McDermutt v. Strong, 4 Johns. Ch. 687, where the same doctrine is expounded. The case of Johnson v. Waters, 111 U. S. 640, illustrates the con- verse situation. There the plaintiff sued on behalf of himself and all other creditors similarly situated, to set aside certain conveyances of the debtor's lands in fraud of creditors, and to subject the lands to the plaintiff's judgment. The judgment in question was not a lien before suit brought. It was held that by suing on behalf of himself and all other creditors, the plaintiff had waived priority over other creditors who should come in; and that in case of deficiency of as- sets the fund should be distributed ratably among all the creditors, who came into the suit. Compare § 354, supra. 17. See supra, § 352. creditors' BII,I,S — ORDER OF REFERENCE. 175 court that it will assume administration of the debtor's assets for the benefit of all creditors whose debts are properly charge- able thereon, and who may come into the proceeding. Hence though the suit may originally have been solely for the purpose of asserting a single Ken on behalf of the plaintiff, an order of reference for an account of liens converts the suit into a general creditors' suit.^* The effect of such an order is of more significance than ap- pears on its face, namely : ( 1 ) It operates to convert the suit into a general creditors' suit, and thus to deprive the original plaintiff or plaintiffs of the further dominion of the suit; (2) It operates as an injunction against the institution of other creditors' suits against the same debtor to subject the same assets, and suspends all other pending creditors' suits of the same character; and (3) It suspends the running of the statute of, limitations on all claims provable in the suit, and thereafter actually asserted, therein. § 362. Order of reference continued — (1) Effect on do- minion of suit. — For reasons indicated in the preceding section, the entry of an order of reference converts the suit — which up to that time is merely the suit of the plaintiff or plaintiffs in the original bill, over which they have complete dominion, and may dismiss at will — into a suit for the benefit of all creditors similarly situated, (whether they have already come in or not, and transfers the dominion of the suit to the creditors as a whole, thus depriv- ing the original plaintiff of plaintiffs of their former right to dismiss the suit.^^ § 363. The same — (2) Effect on other creditors' suits. — Since it is impossible, in the nature^ of things, to administer a single estate or fund in several independent suit's, and in view of the general effect, already indicated, of an order of reference as an assumption of the jurisdiction to administer the estate or fund, (in effect, a quasi partition among creditors) it follows that 18. Simmons v. Lyles, 27 Gratt. 922, 938, per Staples, J.; Shultz v. Hansbiough, 33 Gratt. 571, 578, per Burks, J. 19. Piedmont Life Ins. Co. v. Maury, 75 Va. 508; Hirshfield v. Fitz- gerald, 157 N. Y. 166, 46 L. R. A. 839, note. 176 EQUITY PLKADINC AND PRACTICK. should any other court thereafter, although in an already pending suit, assume the same jurisdiction, there would necessarily be a conflict of jurisdiction, which could only be removed by the sur- render of jurisdiction by one or the other of the courts. To prevent such a conflict, the rule has been estabhshed that the court first entering the order of reference retains the so|e ju- risdiction. It follows that no other similar proceedings can be maintained elsewhere. Hence the first order of reference operates as an injunction against the institution of other cred- itors' suits against the same estate or fund, and suspends fur- ther proceedings in other pending creditors suits, instituted for similar /purposes, whether in the same court or in different courts. It follows also from this, that the general rule that as be- tween conflicting jurisdictions in the same State, priority of ju- risdiction is acquired by that court in which the proceeding is first instituted, is inapplicable to creditors' suits ; and that prior- ity of jurisdiction here is acquired by that court zvhich first en- ters the order of reference."" § 364. The same — (3) EflFect on the statute of limita- tions. — As a natural consec|uence of the foregoing, such a de- cree has the further effect of suspending the statute of limita- tions as to all creditors zchose claims are properly provable in the suit, and who actually come into tlie snit.-'^ This consequence results from the rale that an injunction against suit on a contract, or other claim, suspends the running of the statute of limitations — as does also the pendency of a suit for the enforcement of the claim. By -the entry of the order of reference, other suits are enjoined, and the main suit 20. Kent v. Cloyd, DO Gratt. 555; Bilmeyer i'. Sherman, 2.T V\. Va. (i57; Craig i: Hoge, 95 Va. 275; Buck z'. Coldbath, 3 Wall. 334. The same effect follows on the appointment of a receiver in a creditors' suit. Post, § 404. 21. Callaway r. Saunders, 99 Va. 350. 7 Va. Law Reg. 40, note. See Richmond v. Irons, 121 U. S. 27; Jackson v. Hull. 31 W. Va. .612: 1 Daniell, Ch. Pr. 643, creditors' bills — ORDER OF RKFERENCE. 177 becomes, in theory, one for the enforcement of all claims prop* erly provable — even those not as yet actually asserted. § 365. Several bills pending — practice. — The practice where there are several creditors' bills pending to subject the same res is explained in Stephenson v. Taverners : ^^^ "Where there are several such suits pending at the same time,'' says Mon- cure, J., "it seems the decree for an account of outstanding claims 'may be made in the cause which is first ripe for a decree, whether that cause was first commenced or not ; and when the decree is made in the younger suit, then the proceedings in the elder suit must be stayed.' Ross v. Crary, 1 Paige 417, note (a)." 5. Necessity of order of reference. § 366. Account of liens — necessity of order of refer- ence. — Before decreeing a sale of real property at the suit of lien-creditors, the policy of courts of equity is to convene all lien-holders ; to ascertain definitely the amounts of the several liens, with their respective priorities ; and to obtain precise in- formation as to location and description of the property or prop- erties owned by the debtor and against which the proceeding is directed. § 367. The same — advantages — (1) sale free of liens. — The enforcement of this policy accomplishes several impor- tant and beneficial results : ( 1 ) The convention of all lien-hold- ers enables the court to sell the property free of liens — thus encouraging prospective purchasers to bid more freely than they would do if obliged to bid blindly, and to accept title subject to unknown and unascertained liens not represented in the suit. Thus the debtor, as well as his creditors, is benefitted by a more advantageous sale. § 368. The same — (2) enabling lien-holder to bid in- telligently. — The fixing of the priorities enables each creditor to know precisely the aggregate of all liens superior to his own, 21a. 9 Gratt. n98, 406-407. It seems not unusual to consolidate such causes. See Consolidation of Causes, ante. Ch. xix, —12 178 EQUITY PLEADING AND PRACTICE. ' and therefore, if he desires to become a bidder at the sale in order to save his own debt, he may do so intelligently. Here, again, by encouraging creditors to bid, the prospects of an ad- vantageous sale are increased.. § 369. The same — (3) defining the res. — Precise knowl- edge of the location and description of the res which the court is to administer is manifestly necessary in all judicial proceed- ings. The homely maxim of equity is that it "will never sell a pig in a bag.'' § 370. Order of reference continued — when essential. — In pursuance of the policy referred to, the settled practice in equity is to refuse to decree a sale of real property where the record indicates that there are conflicting liens, or liens of un- ascertained or disputed amounts, or an absence of certainty in the location or description of the subject-matter of the sale. And for disregard of this rule the decree will be reversed on appeal. The rule does not depend on the character of the lien or liens asserted in the bill, but on the uncertainty in one or more of the particulars mentioned, namely, in the amount or amounts due, in the several priorities, or in the subject-matter,^^ or in some other matter likely to operate as a clog upon the bidding. So far is this policy carried of requiring certainty in these several particulars, that where a creditor secured by a deed of trust is proceeding, with the co-operation of the trustee, to en- force his claim by a sale of the property in pais, the court will enjoin the sale and order a proper account to be taken, where it is made to appear by the debtor-plaintiff's bill that the title to the trust subject is clouded, or the res is uncertain, or the amount of the debt is in dispute, or that there are other con- 22. Coles V. McRae, 6 Rand. 718; Simmons v. Lyles, 37 Gratt. 922; Kendrick v. Whitney, 38 Gratt. 646; Shultz v. Hansbrough, 33 Gratt. 567; Bristol, etc., Co. v. Caldwell, 95, Va. 47; Sims v. Tyrer, 96 Va. 14. The rule is generally not applicable to personal property — ^because of its perishable nature, and because personal chattels may usually be sold in detail, instead of in bulk. Coles v. McRae, supra; Bank T. Trigg, 106 Va. 327. creditors' BII,LS ORDER OF REFERENCE. 179 flicting liens oti the property. ^^ This means not only that the court will not itself decree a sale where these circumstances ap- pear, but that it will actively intervene and forbid a sale in pais, until these uncertainties are cleared up. § 371. The same. — Where the reason of the rule ceases the rule itself ceases. Hence on a creditors' bill brought solely on behalf of the plaintiff or plaintiffs, whose claims are certain, or may be made certain by proofs in the cause, with like certainty or possible certainty as to the res. with nothing on the record to indicate the existence of other conflicting liens, the court will not assume the probability or possibility of other liens, and hence may order a sale without an account of liens. ^^ And so, where it is evident that the non-enforcement of the rule would not produce the harmful results . against which it is directed.-' § 372. Attachment, injunction and receivership. — These ancillary processes of attachment, injunction and receivership are nowhere more commonly found, nor more beneficially admin- istered, than in combination with creditors' suits. To each of these a special chapter has been devoted in these notes. 2* 23. Gay v. Hancock, 1 Rand. 73; Miller v. Argyle, 5 Leigh 460; Wilkins v. Gordon, 11 Leigh 547; Hudson v. Barham. 101 Va. 63. 24. Repass v. Moore, 96 Va. 147; Shickel v. Berryville Land Co., 99 Va. 88. 25. Bank v. Trigg, 106 Va. 327— where it appeared that the first lien amounted to several millions of dollars, largely in excess of the ' value of the property, and that the inferior liens were for such com- paratively small amounts as to exclude the probability that the in- ferior lienors would desire to bid at the sale. 26. See ante, Chs. xxv, xxvii, post, Chs. xxxii-xxxiii. CHAPTER XXXII. RECEIVERS.* § 372a. Receiver — nature of the office. — A receiver is a disinterest^ executive officer appointed by a court of equity,^ whose duty it is, under the direction and supervision of the court, to take possession of property, real or personal, involved in an equity suit, for the purpose of preserving it pendente lite, where for good reason it seems to the court that no party to the suit should have the custody of it.- 1. APPOINTMENT OF RECEIVER. § 373. The same — purpose of his appointment. — ^Vhile the main purpose of a receivership, as indicated, is to preserve the res during the litigation, and finally to dispose of it as the court may direct, the office is not necessarily a passive one and the receiver a mere custodian. Not infrequently the preserva- tion of the property, because of its inherent nature, requires that it be actively used or operated, in which case the scope of the receivership becomes much wider than that of mere custody of the property. Thus, where the res is constituted of the assets of a railwa}- company, or other public utility, which, in the interest of the public as well as of its owners and creditors, must be operated — or where, though not of public concern, the value of the prop- erty would be seriously affected by ceasing the operations con- nected with it (as in the case of the plant of a newspaper, or of 'Consult: High on Receivers (4th ed.). 1. Statutory receivers — that is, those designated directly by stat- ute, or appointed by executive officials or boards, under authority of statute — are not within the scope of our discussion. See Relfe i'. Rundle, 103 U. S. 332; post, § 409, ct scq. 2. The nature of the office, and the purpose and effect of the ap- pointment of a receiver, are lucidly explained by Baldwin, J,, in Bev- erley r. Brooks, 4 Gratt. 187, 208. 5 80 RECEIVERS Al'l'OJN'I'MKNT. 181 a manufacturing property with large unfinished material on hand, and profitable unfilled contracts) — the receiver may be di- rected to operate the res as a going concern, so as to preserve the good-will, and otherwise prevent serious loss to the owners and other parties in interest. § 374. Circumstances justifying appointment of re- ceiver. — In order to call into exercise the extraordinary juris- diction to seize the defendant's property, and to take it out of his possession before the plaintiff has established his right thereto, or the validity of his claim against it, by a trial oh the merits, the court must be satisfied that there are good reasons why the property should be taken into its custody by the ap- pointment of a receiver. There are two chief circumstances upon which the bill for a receiver must rest, namely, (1) The plaintifif must have an equity in the res itself, and not a merely personal claim against the defendant owner; and (2) It must appear to the satisfac- tion of the court that the rights of the plaintiff will be jeoparded if the property be left in the defendant's possession — as by re- moval beyond the jurisdiction, misuse, misapplication, spoliation, wastage, or otherwise. § 375. The same. — "The exercise of the extraordinary power of a chancellor in appointing receivers," says Mr. High,^ "as in granting writs of injunction or ne exeat, is an exceed- ingly delicate and responsible duty, to be discharged by the court with utmost caution, and only under such special or peculiar cir- cumstances as demand summary relief. Indeed the appointment of a receiver is regarded as one of the most difficult and embar- rassing duties which a court of equity is called upon to perform. It is a peremptory measure whose effect, temporarily at least, is to deprive of his property a defendant in possession, before a final judgment or decree is reached by the cou|t determining the rights of the parties. It is therefore not to be exercised doubtingly, but the court must be convinced that the relief is needful, and that it is the appropriate means of securing an ap- 3. High, Receivers :i. 182 EQUITY PI^KADING AND PEACTICE. propriate end. And since it is a serious interference with the rights of the citizen, without the verdict of a jury, and before a regular hearing, it should be granted only for the prevention of manifest wrong and injury." § 376. The same — special circumstances to be shown. — It is important for the student to observe that in view of the harshness of the proceeding as described in the sections preced- ing, in order to justify the appointment of a receiver the plaintiff must disclose such a claim in his bill as clearly gives him standing in a court of equity to assert it, as well as the peculiar circum- stances that render a receivership essential to protect the right asserted. It must be remembered that the appointment of the receiver is not the primary object of the suit, but is merely an- cillary to some equitaible right which it is the chief purpose of the bill to protect and enforce. It is Vital therefore that the application for the receivership' be based on a valid equity sought to be enforced, for the conservation and security of which, the appointment of the receiver is necessary. Hence, in order to exhibit a case proper for the appointment of a receiver, the plaintiff's bill must (1) assert a valid equitable claim or right (that is, one not remediable at law) to, or charged upon, the very property sought to he made the subject of the receivership ; and (2) must allege the special circum,stances which make the appointment of a receiver essential for the preseri'a- tion of the property, and its forthcoming at the proper time, in response to the decree of the court, on the final determination of the controversy.'* § 377. The same continued — (1) nature of the plain- tiff's right. — The plaintiff's right must rest on an equitable claim, or one for the assertion of which there is no adequate legal remedy-j and must be in the nature of an equity in the property, (i. e. in rem) so tha't the defendant's relation to the res is in the nature of a trust for the plaintiff's benefit. Unless the right be in rem in its original form, it must be converted into 4. See High, Receivers, 11-12. RECEIVERS — APPOINTMENT. 183 such a right by judgment or otherwise, before the plaintiff has a locus standi for the appointment of a receiver — on the kindred and familiar principle that a general creditor cannot maintain a creditors' bill or interfere with the defendant's possession of his own estate.5 Thus a creditor in position to maintain a cred- itors' bill,® a plaintiff asserting a trust in the res, express or im- plied, for his benefit,''^ minority shareholders of a corporation seeking an accounting or a winding up of the corporate affairs,^ partners seeking a dissolution and winding up of the firm busi- ness, or an accounting and winding up after dissolution,' are illustrations of proper plaintiffs in an application for a receiver. § 378, The same — (2) necessity of receiver for preser- vation of the res. — Assuming that the bill contains proper al- legations as to the plaintiff's right to equitable relief, the second essential of his case for a receiver is that there be a well grounded apprehension of immediate danger of serious loss to the plaintiff, unless the property be placed in the custod}- of a receiver. 1'' § 379. The same — special appointment. — While in many states courts of equity are served by a permanent official known as a General Receiver, the duties of such an official are usually no other than those of the financial agent of the court, to receive funds paid into court and to preserve, invest, or otherwise dis- pose of them as the court may order. ^^^ The receiver to whom this brief discussion is confined is a temporary officer, usually named by special designation of the court in the cause in which he acts as receiver. 5. High, Receivers, 9-H. 6. For the essentials of which see Creditors' Bills, ante. § 350 et seq. High, Receivers, 399-471. 7. High, Receivers, 9, 412, 694-699. 8. After exhausting all means of redress within the corporation it- self. Hawes v. Oakland, 104 U. S. 450; Passenger & Power Co. %'. Fished, 104 Va. 131; Marshall on Corporations, § 304; Equity Rule 27; High, Receivers. 293 et scq. 9. High, Receivers, 472-552. 10. High. Receivers, 11. 11. Va. Code §§ 3405 et seq. 184 EQUITY PLEADING AND PRACTICJt. § 380. The same — appointment continued — in vacation. — The analogy between the preliminary injunction and the ap- pointment of a receiver is both close and striking, — an analogy to which we shall have occasion to recur again. Both are in their nature extraordinary and preventive proceedings — neither affects the merits of the controversy, — the purpose of both is to preserve the status quo — and the one is frequently the comple- ment of the other. In many cases the appointment of a receiver without the further protection of an injunction, or the granting of the injunction without the precautionary meas- ure of a receivership, would be fruitless. It necessarily follows therefore that jurisdiction to grant injunctions draw.s with it, e.v 'necessitate, jurisdiction to appoint a receiver. Hence the question whether a particular court or judge has ju- risdiction to appoint a receiver, and whether the appointment may be made in vacation ( where there is no determining statutory provision) will depend on the jurisdiction of the court or judge with respect to the granting of injunctions. Power to grant the latter includes the necessary incident of appointing the former. i- And the power to appoint in vacation carries with it the power to discharge in vacation. ^^ 2. NOTICE OJP APPLICATION. § 381. Appointment continued — notice of application. — While there is a strong analogy between the issuing of a pre- liminary injunction and the appointment of a receiver as already- pointed out, the latter is yet a much more serious and far-reach- ing disturbance of the apparent rights of the defendant. The injunction is merely negative and does not alter the status quo, whereas the receivership-is, in a sense, an anticipatory execu- tion, (or, perhaps, more accurately, an equitable attachment), and deprives the defendant of the possession of his propert}- 12. High, Receivers, 15-16; 105-106; Smith v. Butcher, 38 Gratt. 144; Harwell v. Potts, 80 Ala. 70; Rainey v. Freeport, etc., Co., 58 W. Va. 424. See Injunctions, ante, Ch. xxvii. 13. Crawford v. Ross, 39 Ga. 44; High, Receivers 824-826; ante, § 296. RECEIVERS — NOTICE OF APPI^ICATION. 185 at the very beginning of the suit, before the plaintiff has estab- lished his claim by a trial on the merits, and before the defend- ant has had opportunity of making his defense. It is natural, therefore, that courts should be more averse to the appointment of a receiver than to the granting of a prelim- inary injunction, and should proceed with greater caution in the one case than the other. It is an imperative rule, therefore, ( with the exceptions pres- ently to be noted) that no application for the appointment of a receiver will be granted on a mere ex parte application, but that the defendant must have seasonable notice of the application, with opportunity to introduce counter-affidavits to meet those offered by the plaintiff in support of the allegations of his bill.^* § 382. Notice of application — continued. — But this rule, while imperative is not infloible, nor carried further than jus- tified by the reason on which it rests. Hence the court will not insist upon notice to the defendant wfhere it is impracticable — as where the defendant has absconded; or where he is beyond the jurisdiction and is not represented by counsel or other au- thorized representative, and the situation is urgent. Nor will notice be required where it is clearly shown that notice to the defendant would probably defeat the very object sought in the application for the receivership — as that the defendant, in con- 14. High, Receivers, 112 ct seq.; Freidenheim v. Rohr, 87 Va. 764; Ruffner v. Mairs, 32 W. Va. 655, 11 S. E. 5; Stockton v. Harmon, 32 Fla. 312, 13 So. 833; Ensley Devel. Co. v. Powell, 147 Ala. 300, 40 So. 137; Rogers Z'. Dougherty, 20 Ga. 271. In Bristow v. Home Building Co., 91 Va. 18, 20 S. E. 946, it was held that where, on the subsequent appearance of the defendant, the court overruled his mo- tion to discharge the receiver, and sustained its original order, this is equivalent to holding that after notice and argument, the ex parte application for an injunction and receiver ought to have been granted. The appointment of a receiver, without notice, cannot be a more summary proceeding than the famiUar proceeding under attachment statutes, which require no notice to the defendant prior to the seiz- ure of his property. So it would seem that if the bill makes out such an equitable case as would justify an attachment at law if the claim were legal, it will ordinarily have stated a proper case for the appointment of a receiver. 186 EQUITY PLEADING AND PRACTICE. sequence of the notice, would probably remove the res from the jurisdiction, or otherwise attempt to defeat justice. In other words, the rule of notice gives way where to enforce it would threaten greater injustice to the plaintiff than its non- enforcement to the defendant. !•' 3. kecEiver's bond. § 383. Receiver's bond. — Unless dispensed with by consent of parties, or, in rare cases, where plainly unnecessary, the re- ceiver, before he is competent to perform any official duty, is required to execute a bond, with sufficient sureties, conditioned for the faithful performance of his duties, including a due ac- counting for all funds or property coming into his hands offi- cially. The order appointing him usually provides that he shall have no powers thereunder until he. has executed the required bond, in the penalty prescribed in the order. § 384. The same — retroactive effect. — Where there is an interval between the appointment and the qualification of the receiver, the better rule is that the qualification operates retro- spectively, and the rights and title of the receiver wil be reck- oned as of the date of his appointment. Hence the receiver's title will take precedence over a levy made in the interval be- tween his appointment and his qualification. i* 4. UFFBCT OP RECUIVEr's APPOINTMENT. § 385. Effect of appointment.— The appointment of a re- ceiver is in no wise the determination of the merits of the con- troversy. Indeed, as already indicated, such appointment is 15. High, Receivers, 113-117 Jacksonville, etc., Co. v. Stockton, 40 Fla. 141, 23 So. 557; Pollard v. Southern Fertilizer Co., 122 Ala. 409, 25 So. 169; Verplanck v. Mercantile Ins. Co., 2 Paige 438 (per Wal- worth, Chancellor). 16. High, Receivers, 121a; In re Christian Jensen Co., 128 N. Y. 550, 38 N. E. 665; Temple v. Glasgow, 35 C. C. A. 540, 80 Fed. 441, distinguishing Frayser i>. Railway Co., 81 Va. 388. Compare Woods 7'. Ellis, 85 Va. 471, where the contrary was assumed without dis- cussion. RECEIVERS — EFI^ECT OF APPOINTMENT. 187 strikingly analogous to the preliminary injunction or to attach- ments' — to either of which proceedings the receivership is not infrequently ancillary. The purpose of the preliminary injunc- tion is to preserve the status quo; the purpose of the attachment, to hold, preserve and to secure the forthcoming of the property attached ; and so the object of the receivership is simply to safe- f;uard the status quo the more securely, by removing the sub- ject-matter of the controversy beyond the reach of any of the litigants, and placing it in the cu.stody of the court, so that it mav be forthcoming to meet such decree or decrees as may be made in the premises.'-''' § 386. Effect of appointment, continued — the receiver's title. — It follows from what has been said, that the appoint- ment of the receiver operates only as a temporary sequestration, and haS' no effect on the title to the property or the merits of the controversy ; but the title, legal and equitable, remains un- disturbed by the appointment — the right of possession alone being affected. The title of the receiver, therefore, is in no sense that of the trustee of an express trust, or of an assignee. From this, it further follow.s, as we shall see later, that actions at law brought by the receiver under the direction of the court must generally be asserted in the nkme of the legal owner, and cannot be maintained in the name of the receiver. ^^ § 387. The same — property is in custodia legis. — The possession of the receiver is the possession of the court, of which the receiver is but the arm — and hence the effect of the re- ceivership is to place the estate in custodia legis, for the benefit of such of the litigants as may be declared entitled to it or its proceeds on the final determination of the controversy. 17. Beverley r. Brooke, 4 Gratt. 18Y, 208. 18. Save, of course, where the receiver can show title — as by assign- ment, or by statute, or where he has possessory title. See post. Suit by Receivers, §§ 400, et seq. This, on the familiar principle that equity acts in personam only, and hence its decrees cannot ex proprio vigore transfer legal title. See ante, § 375. n. 8. In some of the states, the practice is to compel the holder of the title to convey it to the re- ceiver. Fletcher, Eq. PI. & Pr. 491; High, Receivers, 443-449. 188 EQUITY PIvEADING AND PRACTICE. § 388. Interference with receiver's possession. — The important consequence of the taking of the res into the custody of the court, through the instrumentaHty of the receiver, is, that any interference with the receiver's possession, without consent of the court, will be treated as a contempt of court and punished accordingly. i^ The court may also \-indicate its au- thority by injunction. 2" Not only is it such contempt for a private person thus to in- terfere with the receiver's possession, but it is equally so where such interference is in the form of legal proceedings against the property. Thus an officer who levies an execution or a distress warrant on property in the possession of a receiver, without consent of the court, is guilty of contempt. -^ 5. FAMILIAR INSTANCES OF RECEIVERSHIPS. § 389. Familiar instances of receiverships. — It is, of course, impossible to enumerate, in the form of concrete state- ment, the various circumstances justifying a receivership, but perhaps a few illustrations of the more common cases in which receivers are appointed — almost as a matter of course — may be helpful to the student: (a) Foreclosure of mortgages and other liens on real prop- erty, where it is doubtful whether the proceeds of the mort- gaged property will be sufficient to satisfy the debt, and, because of the insolvency of the debtor, the mortgagee desires to seques- ter the rents and profits. Here a receiver may be named to col- lect the rents and profils.^^ (b) Foreclosure of mortgages or other liens on personal or mixed property, where good cause is shown for placing the prop>- erty in the custody of a receiver. Under this head would come 19. High, Receivers 163, et seq. 20. Id. 356. 21. Id. 163, et scq. 22. High, Receivers 639-691; Smith v. Butcher, 28 Gratt. 144; Freed- man's Sav. Bank v. Shepperd, 127 U. S. 494; Shepperd v. Pepper, 13:i U. S. 626. KECEIVERS — COMMON INSTANCES. 189 the foreclosure of mortgages on railways and other public serv- ice companies — or on the property of private corporations or of individuals, where the mortgaged assets are of such a character that they are liable to spoliation or wastage.-^ (c) In cases of creditors' bills generally — where the assets are of a character to need the special protection afforded by a re- ceivership.-^ The receivership is particularly appropriate in creditors' suits to subject personal assets transferred in fraud ■of creditors.--"' (d) Shareholders' suits ~^^ to wind up the affairs of the cor- poration, for insolvency or other proper cause; as well as suits by minority shareholders against directors or other officials to recover corporate funds wrongfully appropriated or negligently lost. (e) Controversies between partners, calling for a dissolution and winding up of the partnership affairs, where the partners cannot agree upon the terms of the dissolution, or on the cus- tody, control and disposition of the assets after dissolution.^'' (i) Controversies betzi'ccn trustee and cestui que trust, where the latter seeks a removal of the trustee for fraud, incompe- tency, or other cause indicating the propriety of placing the trust -res in the custody of a receiver. ^^ 23. High, Receivers 376-389a, 647. 24. High, Receivers 399, et seq. The student will of course recall that in the absence of statute, general creditors cannot maintain such a bill. See Creditors' Bills, ante, Ch. xxxi. 25. By special statute in Virginia general creditors may have relief in equity here. Va. Code, § 2460; ante, § 354, 26. High. Receivers 392-395C. 27. High, Receivers 472-508. 28. Id. 697, ei seq. CHAPTER XXXIII. RECEIVERS— CONTINUED. 6. GENERAL POWERS O? RECUIVBR. § 390. General powers and duties of receiver. — As more than once heretofore indicated, the receiver is the mere arm of the court, and hence his powers and duties are necessarily de- pendent on the terms of the decree appointing him, and of such subsequent orders as the court may, from time to time, enter, enlarging, restricting or otherwise modifying the original order of appointment. § 391. The same — implied powers — duties passive.^ Where his duties are merely passive, the implied powers of the receiver are somewhat similar to those of a special agent — and will not be extended by implication beyond those powers clearly incidental to the powers expressly conferred. But the order of appointment will be construed as conferring all powers reason- ably incidental to the main powers. ^ § 392. Implied powers — continued — duties active. — Where the duties of the receiver are not simply passive, but are active in their nature — as where they include the general management and operation of the res as a going concern — (e. g. a railway or other public utility, or a manufacturing plant or the publication of a newspaper) since, in the nature of the case, minute instructions are impracticable, the receiver must of necessity be invested with wide discretionary power, by impli- cation. And in the conduct and management of such operations, where not otherwise restricted by the directions of the court, the receiver may exercise such incidental powers as, imder the circumstances, necessarily or reasonably accompany the conduct of the business intrusted to him.^ 1. See Thompson* z;. Phoenix Tns, Co., 136 U. S. 287; authorities in next footnote. 2. State Bank of Virginia i'. Domestic Sewing* Machine Co., 99 Va. 411: High, Receivers 36, 175-180, 313-342, 390-394. 190 • RECEIVERS — SUITS AGAINST. 191 7. SUITS AGAINST RECEIVERS. § 393. Suits against receivers. — For the reasons already mentioned, the institution of a suit against the receiver, in his official capacity, without consent of the court, is likewise a con- tempt — punishable in contempt proceedings, and remediable by injunction.3 Many authorities go further, and hold that the question of consent is a jurisdictional one, and the absence of such consent is fatal to the jurisdiction.'' § 394. The same — how rights against receiver as- serted — intervention. — Creditors and others asserting against the res in the receiver's hands — claims arising anterior to the receivership, or not out of any act of or transaction of the re- ceiver or his agents — must, of course, intervene in the equity suit in which the res is being administered, unless such claims are asserted in the original bill. These claims are not against the receiver but against the res only. Such intervention may be either by a formal petition, or by proof under an order of ref- erence. As stated, such claims are liabilities of the defendant whose estate has been sequestered by means of receivership. But where claims arise against the receiver as such (of course, subsequent to his appointment), out of his management or op- erations connected with the sequestered property, — claims which the receiver refuses to pay, or to audit for payment — the proper method of proceeding is to file (by consent of the court) a pe- tition in the pending chancery suit, showing a valid prima facie claim against the receiver, and praying for permission to prose- cute the claim either by proceedings in the cause itself, or in an independent suit against the receiver, in such forum as the 3. High, Receivers 354. 4. Though the weight of authority is contra. Id. 354a. See Me- lendy v. Barbour, 78 Va. 544; Reed v. Axtell, 84 Va. 2.31; Barton v. Barbour, 104 U. S. 126. Where, however, the suit is against the re- ceiver personally, as for a trespass committed under color of his re- ceivership, but outside and in excess of his authority, the rule prob- ably does not apply — since here the plaintiff is not seeking in any manner to assert a claim against the property in custodia legis. High, Receivers 257. 192 EQUITY PLEADING AND PRACTICE;. court may designate, at law or in equity, according to the nature of the demand.^ § 395. Judgment against receiver — nature — how en- forced. — Where the claim is thus against the receiver oiificially, and not for personal wrongs which he may have committed be- yond the scope of his official duties,'' a valid judgment recovered against him does not bind the receiver personally — since in sub- stance the proceeding is aganist the receivership, or the fund represented by it.''' The proper procedure after judgment, is to petition the court administering the assets to allow and order the judgment paid out of the receivership funds, according to the priority to which it may be entitled. As previously pointed out, execution on such judginent cannot be levied on the assets in the hands of the receiver. To permit claimants thus to levy executions would seriously disarrange the priorities of the various claims, and would render the orderly administration of the assets impossi- ble. Hence such a levy would be punishable as a contempt of the court.* § 396. Statutory license to sue receivers. — The manifest inconvenience of intervening in a chancery suit, pending per- 5. High, Receiver 354, 254a-25;). 6. High. Receivers 269, ct scq. 7. High, Receivers 255, 395, et seq: McNulta v. Lockridge. 141 U. S. 327; Bartlett v. Cicero Light Co., 177 111. 68, 52 N, E. 339. 68 L. R. A. 78, 69 Am. St. Rep. 306. As to the conclusiveness of such judgment upon the interests represented by the receiver, see Painter V. Painter, 138 Cal. 231, 71 Pac. 90, 94 Am. St. Rep. 47, note. Doubt- less, where the judgment is in a court of la'cv, (which ignores equita- ble titles and proceedings, and even the existence of a court of eq- uity, although the presiding judge be the same in both courts), the designation of the defendant as "receiver"' would be treated 1iy the law court simply as descHptio pcrsonac. and the judgment would be, in form and effect against the receiver personally. But as the plain- tiff in the judgment is a quasi-party t6 the suit in the equity court that appointed the receiver (by reason of his intervention for license to sue), that court will control the judgment at law, and treat it as aflfecting the res only. 8. High, Receivers 141, 163: supra, § 38S. RECEIVERS — STATUTORY LICENSE TO SUE. 193 haps at a point far removed from the locality in which the claim against the receiver arose, has resulted in statutes in many states, authorizing such suits to be brought zvithout previous Icaz'c of the court. § 397. The same — scope of statutes. — These statutes ^•ary in their scope, which, in some jurisdictions, as in Virginia,' is confined to suits against receivers of corporations, while in others, as in the Federal jurisdiction, "^^ it embraces receivers of both corporate and individual property. Naturally these statutes do not throw the door wide open to litigants to contest with the receiver, in such independent actions, their claims against the insolvent defendant, owner of the res in the receiver's hands — claims properly justifiable only in the pend- ing suit in which the receiver was appointed ; but the license to sue the receiver without consent of the appointing court extends only to suits "in respect of any act or transaction of his in carrying on the business connected with such corporation.'' i^ § 398. The same — how judgment enforced. — To permit the successful plaintiff in such licensed action against the receiver to issue execution on his judgment, and levy on the res in the hands of the receiver, or otherwise to proceed to enforce his judgment out of the assets in the hands of the receiver, against which assets prior claimants have already proceeded by the very circumstance of the existing receivership, would seriously dis- arrange the priorities of the various claimants, and hamper the orderly administration of the assets in the hands of the court. Hence, either by express provision of the statute,!^ or by 9. Va. Code, § 3413a. 10. Judicial Code CSuppI. 1911), § 66. 11. Va. Code, § ,3415a; Fed. Judicial Code (Suppl. 1911). § 66, The language quoted is identical in both statutes, except that the Federal statute substitutes the final word "corporation" by the word "prop- erty."' For a discussion of the cases construing the Act of Congress, see High, Receivers .395b. 12. As in Virginia, § 3415a. —13 194 EQUITY PLEADING AND PRACTICE. judicial construction.^^ the successful plaintiff is not permitted to levy on the res in the receiver's hands ; but, after securing his judgment, must intervene by petition in the main suit; where- upon "the court shall direct the payment of such judgment in the same manner as if the claim upon which the judgment is based had been proved and allowed in said cause" ^* — that is, the court will give the judgment such relative priority as the claim upon which it is based would have been entitled to had it been as- serted and allowed in the main suit. In other words, the judg- ment is enforced in the same manner as other judgments against receivers.15 § 399. The same — the Federal statute. — The language of this statute is : "Every receiver or manager of any property, appointed by any court of the United States, may be sued in respect of any act Or transaction of his in carrying on the busi- ness connected with such property, without previous leave of the court in which such receiver or manager was appointed ; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager "was appointed, so far as the same may be necessary to the ends of justice." ^* The proper construction of the final clause subjecting "such suit" to the "general equity jurisdiction" of the court appointing the receiver, does not authorize the court to reoi)en the judgment when offered in intervention proceedings by the judgment cred- itor, but merely to fix the time and mode of payment, and to adjust the competing rights of all claimants in the suit.^"" The statutory license is broad enough to include, and does 13. As in the Federal jurisdiction. St. Louis S. W. R. Co. v. Hol- brook (C. C. A. 1896), 73 Fed. 113; Texas, etc., R. Co. v. Johnson. 151 U. S. 81. See High, Receivers, 395b. 14. Va. Code, § 3415a(3). S'ee the statute for further details. For methods of service of process on receivers, see id. § 3226. 15. See Judgment against Receivers, ante, § 395. 16. Judicial Code (Suppl. 1911), § 66. 17. St. Louis S. W. R. Co. v. Holbrook (C. C. A. 1896), 73 Fed. 112; Texas, etc., R. Co. v. Johnson, 151 U. S. 81. RECEIVERS — SUITS BY. 195 include, the right to sue the receiver in any court of competent jurisdiction, state or federal}^ 8. SUITS BY RUCEIVIJRS. § 400. Suits by receivers — consent of court. — In absence of statute conferring other powers, the receiver, being a mere officer of the court, may exercise no other powers than those conferred. It follows that merely by virtue of his office he has no authority to institute suits on behalf of the interests which he represents. This rule is based on the logical and salutary principle that it is the province of the court itself {i. e. of the principal or appointing power) to determine whether it shall, through the receiver, become a litigant in a suit, at the risk of useless litigation and' a waste of the funds which it is admin- istering, rather than, that the question should be left to the un- controlled discretion of its agent or appointee. Where, therefore, the receiver sues, as such, he must allege and prove his authority to do so from the court appointing him.i^ § 401. The same — name in which suit is brought — (1) transactions prior to receivership. — Where the receiver sues to assert a right connected with his receivership, but which arose before his appointment — a right therefore, vested in the insolvent, title to which is not divested by the receivership,^'' — on principle, and according to the better authority, he must assert 18. McNuIta V. Lochridge, 141 U. S. 327; Texas, etc., R. Co. v. Johnson, supra. 19. High, Receivers 300-203. At to the necessary allegations in such case, see Taylor v. Canaday, 155 Ind. 67], 57 N. E. 534, 59 N. E. 30; Coddington v. Canaday, 157 Ind. 343, 61 N. E. 567; High, Re- ceivers 301. Mere authority to "collect" debts due the insolvent, does not confer authority to collect by suit. McAllister v. Harman, 97 Va. 547^ Screven v. Clark, 48 Ga. 41. Where the debtor of the insolvent or of the receiver is already properly a party to the suit, the claim of the receiver against him may be tried in the main suit, even though the claim be otherwise triable only at lawf N. Y. Life Ins. Co. v. Davis, 94 Va. 427. 20. See sitpra, § 386. 196 EQUITY PLEADING AND PRACTICE. the claim in the name of the person to whom the right originally accrued, and not in his own name.^i § 402. Suits by receivers, continued — where receiver is assignee, or otherwise has title. — Where the receiver's claim of title does not rest on the mere order of the court, but is derived through an assignment by the insolvent, or under a statute expressly or impliedly investing him with title,^^ since the reason for the rule denying him the right to sue in his own name no longer exists, the rule itself gives way. In such case, having title, he may sue in his own name, and (in a court of law) without designating himself as receiver, since in a law court such designation is merely descriptio per- sonce.^^ § 403. Suits by receivers, continued — (2) transactions subsequent to receivership. — On a cause of action arising subsequent to the appointment of a receiver, out of a transaction had with the receiver or his agents, there is, on principle, no 21. This rule would seem of special force in courts of laiv, and in those jurisdictions (as in Virginia) where legal title alone is recog- nized in such courts. See Battle n. Davis, 66 N. C. 252; Freeman z'. Winchester, 18 Winchester, 18 Miss. 577; Yeager v. Wallace, 44 Pa. St. 294, where the rule is especially well stated by Strong, J.; Homer r. Barr, etc., Co., 180 Mass. 163, 61 N. E. 883, 91 Am. St. Rep; 269; Murtey v. Allen, 71 Vt. 377, 45 .-Ktl. 752, 76 Am. St. Rep. 779. Some of these authorities refer to Joreign receivers, but the principle seems equally applicable to domestic receivers, except as indicated in the following section. High, Receivers, 209-210 — indicating some conflict in the authorities. The practice is settled in some states by statute, as in New York. Id. 211-23 2, 447; Porter v. Williams, 5 Seld. 142. As- shown in Mr. High's valuable treatise, so often cited in these notes, some of the adverse authorities hold that by having lawful possession of the documents — as in the case of bills, notes or other chases in action— such possession gives the receiver a special title, so as to authorize suit in his own name. High. Receivers iihi sup. Nor, on principle, is the- situation altered by the circumstance that express authority to sue in his own name is conferred by the appoint- ing court. Id. 22. See infra. Foreign Receivers, § 405. 23. Boyle -c. Townes, 9 Leigh 158: ^^'ray v. Jamison, 10 Humph. (Tenn.) 186; High, Receivers 244. RECJJIVERS — CONFLICT OF JURISDICTION. 197 difficulty in his maintaining a suit thereon in his otvn name, in any court of competent jurisdiction, foreign or domestic — since, as a party to the transaction, he has legal title to the claim. In such case he might maintain a suit without naming himself as receiver, as such designation is merely descriptio persona, as noted in the preceding section. Thus he may maintain assumpsit in his own name for the purchase price of goods sold by him as receiver ; -■' in trover for a chattel bailed by the receiver to the defendant ; -"' to recover (even in a foreign jurisdiction) property of which he has once obtained possession in his own state, since such possession gives him a special title as against a wrong-doer ; -" and, of course, on all contracts or transactions made or had with him in con- nection with the affairs of the receivership. § 404. Conflicting receiverships — priority of jurisdic- tion. — As between courts of co-ordinate jurisdiction in the same state, it is the settled rule that the court first moving in the process of administering the res by appointing a receiver, will have priority of jurisdiction over another court subsequently appointing a receiver of the same property — and this whether the first receiver has taken actual possession of the res or not.^^ And this rule applies equally where one of the competing re- ceivers is appointed by a State court and the other by a Federal court. 2* The analogy between the effect of appointing a re- ceiver as fixing priority of jurisdiction, and the effect of an order of reference in a creditors' suit,^^ seems complete. 9. CONFLICT OF LAWS — FORF.IGX RECETVFRS. § 405. Conflict of laws — appointment of receiver over property in another jurisdiction.— ^^'here the court has per- 24. Singerly v. Fox, 75 Pa. St. 112. 25. Boyle v. Townes, 9 Leigh 158. 26. Cagill V. Woodbridge, 8 Baxt. (Teiin.) 580, 35 Am. Rep. 716; note 15 Am. 5t. Rep. 82; Kehr v. Hall, 117 Ind. 405, 20 N. E. 279. 27. High, Receivers 48. 28. Id. 50-62a, .388. See Foreign Receivers, next section. 29. See ante. §§ 361 et seq. 198 EQUITY PLEADING AND PRACTICE. sonal jurisdiction of the defendant, it has full power by its de- cree to compel him to deliver the res over to the custody of the receiver, in whatever jurisdiction it may be located. If the de- fendant be not personally served with process within the juris- diction, or is not otherwise within the control of the court, the court can enter no personal decree — nor exercise jurisdiction over property of the defendant located in another state. Nor does jurisdiction over the person make the decree effective be- yond the jurisdiction, as such decree operates in personam only — on the conscience of the defendant. But operating thus on his conscience, the defendant may be compelled by proper process to obey the order of the court directing that the possession of the foreign res be delivered to its receiver 3" — or, as it seems, may compel an assignment thereof to the receiver, in trust for the interests represented in the suit.^^ In case the property be held adversely in the foreign state, or legal proceedings be otherwise necessary in the foreign state to obtain possession, the right of the receiver to maintain suit in the foreign court will depend on circumstances to be consid- ered in the following sections. § 406. Foreign receivers. — It not infrequently happens, particularly in connection with receivers of insolvent corporations, that there are assets, tangible or intangible, widely scattered throughout different states. In such cases, the question how far the powers and rights of the receiver appointed in the home state will be recognized in other jurisdictions, becomes an important one. § 407. The same — suits by foreign receivers. — It is set- tled that the full faith and credit clause of the Federal Constitu- tion does not require the courts of one state to recognize the official character and authority .of a receiver appointed in another state. The official status of the receiver, like that of a sheriff or 30. Receiverships of railways traversing several states, are famil- iar instances. High, Receivers 44, 388a; Wilmer v. Railway Co.. 2 Woods 409. See Ancillary Receivers, infra, § 409. 31. See infra. §§ 407 fn. 31), 409. FOREIGN RE.CEIVEES. 199 of an administrator, does not accompany him beyond the territo- rial jurisdiction of the court appointing him. Being the mere arm of a court whose process can have no extraterritorial po- tency, his home-conferred status and powers are necessarily measured by that of the process of the appointing court. ^^ This rule applies where the receiver of one Federal court sues in an- other Federal court outside of the circuit ;^^ and whether the receiver sues in his own name or that of the corporation ; ^* and ii^ spite of the circumstance that the suit is expressly directed by the court appointing him.^^ § 408. Suits by foreign receivers, continued — relaxa- tion of the rule by comity. — Notwithstanding the established rule denying to a receiver the privilege of maintaining a suit in a foreign jurisdiction as a matter of right, the courts are more and more evincing a disposition to accord recognition to foreign receivers from motives of interstate comity; and numerous in- stances of such comity are to lie found in the reports. This comity is usually extended on such terms as to preserve the rights of citizens of the state whose comity is thus invoked — and hence it will not be extended to the prejudice of citizens who have acquired rights against the res in the foreign juris- diction, nor when it would contravene the laws or public policy of the state.3* 32. Booth V. Clark, ,17 How. (U. S.) 322; Hale v. Allinson, 188 U. S. 56; Great Western Mining, etc., Co. v. Harris, 198 U. S. 561; mon- ographic note 4 L. R. A. (N. S.) 824; 3 Va. Law Reg. 831; High, Re- ceivers 339 et seq. The difficulty is frequently met by procuring an assignment (voluntarily, or under order of the court) to the receiver . so as to vest title in him as trustee. See infra, § 409; High, Receiv- ers 443 et seq. 33. Brigham v. Luddington, 13 Blatchf. 337; pigh, Receivers 339. See Federal Judicial Code, 56. 34. Great Western Mining, etc., Co. v. Harris, 198 U. S. 561; High, Receivers 239. 35. Id. 36. High, Receivers 239-241; Folger v. Columbia Ins. Co., 99 Mass. 367, 96 Am. Dec. 747; note 6 Am. St. Rep. 185; Holbrook v. Ford, 153 111. 633, 46 Am. St. Rep. 917; Straughan v. Hallwood, 30 W. Va. 374, 8 Am. St. Rep. 49, and extensive note; Grogan v. Egbert (W. Va.), 28 S. E. 714; note 36 C. C. A. 49-58; High, Receivers 341. 200 EQUITY PI^EADING AND PRACTICi;. 10. ASSIGNEES AND STATUTORY RECEIVERS. § 409. The same — rule inapplicable to assignees or statutory receivers. — Of course a wholly different situation is presented where the receiver has title to the res which he is seeking to recover in the foreign jurisdiction. It is the lack of title that defeats his claim to recognition.-^''' Hence if he hold an assignment from the real owner (who will usually be the main defendant in the original suit in whicli the receiver was appointed) — or is exercising powers under a valid statute of the state of his appointment, which in terms, or by implication, vests him with title and control of the res, where- soever situated, — then the question of his recognition by the courts of a foreign state is no longer one of comity, but he is entitled to demand recognition as a matter of right. In such a situation, the receiver is not the representative of a foreign court, but pro hac vice is the owner of the right or title that he is as- serting, under the terms of an express trust.^® Thus, if the statutes of the state under whose laws a corpora- tion is organized provide that a particular official, whether called receiver, statutory assignee, commissioner, or by other desig- nation, shall take charge of its affairs upon insolvency, such a provision is in effect a part of its corporate charter. A corpora- tion may have one set of officers for the management of its affairs while engaged in active operations, and another to take charge of and wind up its affairs upon its insolvency. When such a corporation does business in a foreign state it carries with it not only those provisions of its charter that regulate its active operations, but those also that provide for its dissolution. The property and effects of such a corporation, therefore, vest in the official so designated by charter or general statute, to wind up its affairs, and he has the same powers and title in a foreign 37. See Title of Receiver, supra, § 386. 38. Hawkins v. Glenn, 131 U. S. 319; Bernheimer v. Converse, 206 U. S. 516; Howarth it. Lombard, 175 Mass. 570, 56 N. E. 888, 891; High, Receivers 341a, 244. In such case, the description of himself as "receiver"' would be immaterial, as merely descriptio persona. High, Receivers 244; supra, § 403. ANCILI>\RY RECEIVERS. 201 State as in the state of his appointment. And in such case, the assets must be distributed in accordance with the constitution of the corporation, without distinction between domestic and for- eign creditors.^^ The same result follows where the receiver sues to recover property taken from his possession, since he has a possessory title.4o 11. .\KCILLARY RECEIVERS. § 410. Ancillary receivers. — In order to avoid the diffi- culties that hamper the receiver when he attempts to assert do- minion over assets in a foreign jurisdiction, it is common practice for the original plaintiffs, or some of them, to institute an equity suit in the foreign state, and to sectire the appointment there of an ancillary receiver, with authority to take possession of all the assets of the insolvent within that jurisdiction. Whether the domiciliary receiver may himself institute such suit for an ancillary receivership will depend on the question, already discussed, *i whether he is an assignee or otherwise has title to the assets which he is seeking to recover, or on the comity of the foreign court. *2 The court in the ancillary proceeding will give such a direc- tion to the assets within the foreign jurisdiction as the nature of the situation may demand, looking eventually to their trans- 39. Relfe v. Rundle, 103 U. S. 222; Bockover v. Life Association, 77 Va. 85, 6 Am, & Eng. Corp. Cas. 603; Martyne v. American, etc., Insurance Co., 215 N. Y. 000. See authorities in preceding note. 40. Supra, § 403. 41. Supra, § 409. 42. High, Receivers 306a-306b, 375a; Mahon v. Ongley Electric Co., 159 N. Y. 196, 50 N. E. 805. The erection of ancillary receiverships, or what is tantamount thereto, is quite common in the foreclosure of mortgages on railroads whose lines run through several states, by proceedings in the Federal courts. By comity, the same receiver is appointed in each court, and the court first appointing the receiver is permitted to assume the general administration of the assets. Cen- tral Trust Co. V. East Tenn.. etc., R. Co., 30 Fed. 895; Piatt v. Phil- adelphia, etc., R. Co., 54 Fed. 569; Clyde -c: Richmond & D. R. Co., 56 Fed. 539; High, Receivers 375a. 202 EQUITY PLEADING AND PRACTICE. mission to the domiciliary receiver in the home state — but usually taking care that the claims of local creditors who have secured liens on the estate prior to the ancillary receivership are first satisfied.*^ 1'2. receivers' certificates. § 411. Receivers' Certificates. — In the foreclosure of mortgages of railways, and doubtless of other public service com- panies, which, both from their nature and from public necessity, must, notwithstanding the receivership, be operated as going concerns, courts of equity possess the power, which is of not infrequent exercise when justified by the necessities of the case, to authorize the receiver to borrow money on the credit of the entire corporate assets under the control of the court, and to issue debentures or certificates of indebtedness therefor. Such certificates are known as "receivers' certificates." When issued by consent of the parties in interest, or, under proper circum- stances, without such consent, and after due notice to the bond- holders, or other lienors whose priorities are thus displaced, such certificates may be, and usually are, by order of the court, con- stituted liens superior to all antecedent liens on the property. The theory upon which such action is justified is that the court having undertaken, through the receivership, the adminis- tration of the assets as a trust fund for the benefit of the cred- itors, and at their request, may rightfully preserve the assets at the expense of the fund; and since the operation of the railway is essential to protect the interests of the public, as well as to preserve the custom, good-will and corporate rights and fran- chises of the corporation, the expenses of such operation and management should properly be borne by the trust subject.** The rule does not apply to receiverships of purely private cor- porations, except where all lien-holders consent.*'' A few cases have extended the principle to receiverships of 43. High, Receivers 47, 306-306b. 44. Wallace v. Loomis, 97 U. S. 146; High, Receivers 398c, et seq. 45. High, Receivers 313b-312d; Fidelity Insurance, etc., Co. v. Roanoke Iron Co., 68 Fed. 623; Monographic note 26 C. C. A. 350-372. APPEALS, 203 purely private corporations, but the propriety of these decisions is doubtful." \Vhere, however, the preservation of the property makes it necessary, the propriety of issuingi such certificates not as a lien superior to existing liens, or as a superior lien &y consent of all prior lienors, is undoubted, even in the case of private corporations or (in principle) of individuals.*'^ CHAPTER XXXIV. APPEALS.i / § 412. The record in a chancery suit — bills of exception. — The difference in the practice at \z.y^ and in chancery, is strik- ingly exemplified in the matter of the record. At law the record is a bare skeleton, containing merely the pleadings, empaneling of the jury, the verdict and the judgment — none of the nu- merous motions, exceptions to evidence, instructions given or re- fused, nor the evidence itself, being a part of the record, unless made so by a bill of exceptions. On the other hand, in chancery every step taken in the cause, and every document filed therein, from the subpcena to the final decree, constitutes, or should constitute, a part of the record, without special order to that effect. Hence there is no such thing in chancery as a "bill of exceptions." ^ 46. Id. See Karn & Hickson v. Rorer Iron Co., 86 Va. 754; Prof. Burks, 4 Va. Law Reg. 373. In Osborne v. Big Stone Gap, etc., Co., 96 Va. 58, the Virginia court seems to approve of the application of the principle to private corporations, provided due notice is given to the creditors interested. But as no such notice was given, the ap- proval was obiter. 47. See Jerome v. McCarter, 94 U. S. 734; Kent v. Lake Superior Canal Co., 144 U. S. 75. 1. See Va. Code Chapters 169-170. 8. While this is true, there are still "exceptions" in equity — as to answer, to a master's or receiver's report, to testimony offered, etc. But these, when properly filed, become parts of the record as of 204 EQUITY PLEADING AND PRACTICE. § 413. The same — agreed statement in lieu of complete record. — Provision is made, both in Virginia ^ and in the Fed- eral practice/ for abbreviating the record for . appeal by an agreed statement of facts. This privilege seems to have been quite generally ignored or overlooked by the Virginia bar. § 414. (a) Prerequisites of an appeal — subject-matter. — As a prerequisite to an appeal in any case in Virginia, there must be involved matter of sufficient importance to warrant a hearing of the case by the Court of Appeals. These prerequi- sites the statute ■'' prescribes as follows : (1) Title or bounds of lands: or (2) A freehold or franchise: or (3) Some matter hot merely pecuniary (e. g. custody of a child — divorce, etc.) ; or (4) An amount or value equal to $300, exclusive of costs. § 415. (b) Character of the decree — stage of the cause. — If one of the foregoing prerequisites obtains, an appeal lies. promded the case has progressed far enough, and the action of the court is of sufficient moment, to warrant an appeal at that stage of the cause. This stage is fixed by the statute as fol- lows: That is to say, an appeal lies (assuming the existence of a proper prerequisite, as above shown) from (a) Any final decree : (b) Any interlocutory decree, which (1) Dissolves an injunction; (2) Requires money to be paid; (3) Requires title or possession of property to be changed ; or (4) Adjudicates the principles of a cause. course. It has been heretofore pointed out that these exceptions should be specifically brought to the attention of the court and the court's action thereon shown in the decree, otherwise on appeal they will, as a general rule, be taken to have been waived. 3. Va. Code §3460. ' 4. Equity Rule 77. 5. Va. Code §§ 3454-3455. See these sections for exceptional cases. APPEAI^S. 205 § 416. (c) Time limit to appeals. — Appeals are limited to one year after final decree. Hence if the final decree has not been entered, there is no time limit to an appeal from an in- terlocutory decree.^ § 417. Time limit — exceptions. — If, however, the appeal be from a decree refusing a hill of review '^ to a decree rendered more than six months prior thereto, the appeal must be taken within sLv months. But for this provision, the one year limit to an appeal from a final decree might be extended practically to two years, by filing a bill of review just before expiration of the time limit for such a bill, and then appealing from the de- cree refusing the bill of review, within the usual time limit of twelve months. 6. See ante, § 159. 7. Which, as heretofore noted, may be filed at any time within one year from a final decree. APPENDIX I. In the following pages of this Appendix are presented the forms in a simple chancery suit, from the subpoena to the final decree. The suit is supposed to be one brought by the vendor for the specific performance of a contract for the sale of real property. THE PROCEEDINGS IN A SUIT EOR SPECIFIC PER- FORMANCE. ' Kendrick v. Quinby. THE MEMORANDUM OR PRECIPE. To the clerk of the circuit court of Albemarle county : John A. Kendrick V. Peter Quinby Issue subpwna against the defendant, to the sheriff of Albe- marle County. To first June rules. , May 17, 1915. Lemon & Herbert, for co-mplainant. THE SUBPCgNA. The Commonwealth of Virginia, To the Sheriff gf Albemarle County greeting: We command you that you summon Peter Quinby to appear before the judge of our Circuit Court for the County of Albe- marle, at the clerk's office of our said court, at rules to be holden therefor, on the first Monday in June next, to answer a bill in chancery exhibited against him in our said court by John A. Kendrick. And have then there this writ. Witness William L. Maupin, the Clerk of our said county, 207 208 EQUITY PLEADING ANIJ PRACTICli. at the courthouse thereof, this the 18th day of May, in the year of our Lord 1915, and of our foundation the one hundred and thirty-ninth. (signed) \A'illiam L. Maui'in, Clerk. THE BILL : By vendor, for specific performance. To the Honorable the Judge of the Circuit Court of Albemarle County : The bill of your complainant, John A. Kendrick, of Albemarle county, Virginia, respectfully shows unto your honor : 1. That by a written contract bearing date on the first day of June, 1905, between your complainant and a certain Peter Quinby, of the same county, hereinafterwards named as defendant, your complainant agreed to sell to the said defendant, and the said defendant agreed to purchase from your complainant, a certain house and lot situated in the village of Keswick in said county, on the corner of Main Street and Maple Avenue, as the streets are designated on the plan of said village, which said lot is more fully described in the said written contract, a duplicate-original of which contract, signed by both parties, is herewith filed, marked "Exhibit 101," and asked to be read as a part of this bill. 2. By the terms of said contract, the defendant was required to pay, as the purchase price of said property, the sum of six thousand dollars, as follows, to-wit: Fifteen hundred dollars ($1,500.) in cash, and the remainder, to-wit, four thousand and five hundred dollars ($4,500.), in three (3) equal annual install- ments of fifteen hundred dollars ($1,500.) each, represented by the three promissory notes of the defendant, bearing even date with said contract, and payable to your complainant in one, two and three years after date, respectively, with legal interest from, date, until paid — all of which will more fully and at large ap- pear by reference to said written contract hereinbefore referred to as Exhibit 101, and filed with this bill. 3. Your .complainant further shows that in pursuance of the terms of. said contract, the said defendant paid to \-our com- plainant the cash payment of fifteen hundred dollars ($1,500.), ]?ORMS — THE BILL. 209 and executed and delivered to complainant the three promissory notes as aforesaid. The said defendant also took possession of the premises, as he was entitled to do under the said contract, and has been ever since, and is now, in, complete possession and enjoyment thereof. 4. Your complainant further shows that since the cash pay- ment aforesaid, the said defendant has paid nothing whatsoever of the balance due under the terms of said contract, and by vir- tue of the promissory notes aforesaid, and in spite of complain- ant's numerous and urgent requests to do so. All of said notes are long since past due, with the interest accrued thereon. They are herewith filed, marked "Exhibits 102a," "102b" and "102c," respectively, and prayed to be read as parts of this bill. 5. Your complainant is advised that by virtue of the foregoing facts, he is entitled to come into a court of equity praying for a decree for the specific performance of the said contract by the said defendant ; and, in case the said defendant shall fail or re- fuse to perform his promises when so required by the court's decree, that the court will treat the said contract as creating, by implication of equity, a lien on said premises, in favor of com- plainant, for the security of the unpaid purchase money afore- said ; and that the court in this proceeding will enforce the said lien by subjecting the said property to payment of the balance due as aforesaid. 6. Your complainant hereby avers his willingness and ability to make proper conveyance of the said premises to said defend- ant, with perfect legal title, as soon as the said purchase money has been paid to him. And complainant hereby offers to file such conveyance, duly executed, among the papers in this cause, whenever the court may so order. ^ 1. In some jurisdictions it is held that complainant in a suit for specific performance must file a deed of conveyance along with his bill — though the better rule is contra. This clause, as here worded, would probably comply with the rule of practice even in those states hold- ing the minority view. The latter view was maintained in Wood v. Walker, 92 Va. 24, but, as shown by Judge Burks in a criticism of —14 210 EQUITY PIvEADING AND PRACTICE. 7. In consideration of the premises, and forasmuch as com- plainant is without remedy save in a court of equity where mat- ters of this kind are only and properly cognizable, your complain- ant prays: (a) That the said Peter Quinby be made a party defendant to this bill, and may answer the same, but not under oath. (b) That a decree be entered against the said defendant re- quiring him, within such reasonable time as the court may order, to pay to your complainant the unpaid purchase money, with the iiiterest thereon, as aforesaid; and in default of said payment, that the said premises may be sold under the orders and direc- tion of the court, and that the proceeds, or so much thereof as may be necessary, be paid over to your complainant to satisfy the balance due him as aforesaid, together with the costs of this suit, including a fee- of one hundred and fifty dollars ($150.) to complainant's attorney herein.^ (c) That all such other things be ordered and done as may be necessary for the complete disposition of this cause ; and for such other relief, both general and special, as to equity may seem meet and the nature of the case may require. And your complainant will ever pray, etc. Lemon & Herbert, Charlottesville, Va., Solicitors for Complainant. DEMURRER TO BILL. Kendrick The demurrer of Peter Quinby to a bill of com- V. plainant exhibited against him in the Circuit court Quinby. of Albemarle county by John A. Kendrick. This defendant says that the said bill is insuffi- cient in law, and especially in this : ( 1 ) That the said com- this ruling, in 1 Va. Law Reg. 442, it was probably erroneous. There is a distinct ruling to the contrary by Staples, J., in Whitten !■. Saunders, 75 Va. 563, 570, nor does the minority view seem based on any sound reason. 1. See post, for defendant's demurrer to this prayer for an attor- ney's fee. FOKMS — ORDER OVER-RUI,ING DEMURRER — PLBA. 211 plainant has not tendered along with his bill a proper deed of conveyance of the said premises to this defendant; and (2) that the said bill seeks an allowance to complainant's counsel of an attorney's fee of one hundred and fifty dollars, without any special allegations rendering such an allowance, or any allow- ance, proper ; for which second cause this defendant demurs to so much of said bill as prays for such inequitable allowance. Appleby & Pearmon, Solicitors for Defendant. order oE the court: Over-ruling demurrer to hill in fart. Kendrick This cause came on this day to be heard on the V. bill of the plaintiflf and the exhibits filed therewith, Quinby. and on the demurrer of the defendant to said bill, and was argued by counsel. On consideration whereof, the court deeming as not well taken the first cause in said demurrer alleged, namely, that the plaintiff has not tendered a conveyance with his bill, doth over- rule the said demurrer as to said first cause alleged ; and as to the second cause of said demurrer, namely, the insufficiency of said bill in failing to allege proper or any grounds for the al- lowance of the attorney's fee therein prayed, the court doth sustain the same. But leave is given to the plaintiff to amend his bill in that respect if he shall be so advised. PLEA : Statute of limitations. Kendrick The plea of Peter Quinby to a bill of com- V. plaint filed against him in the Circuit court of Quinby. Albemarle county, by John A. Kendrick. For plea to the said bill, and to the whole and every part thereof, and to all and every the relief therein prayed, this defendant says that neither the complainant's alleged grounds of relief, nor. any claim in said bill asserted, arose within five (5) years before the bringing of this suit. Wherefore defendant prays judgment of this court whether he shall be compelled to make answer to said bill, and prays to 212 EQUITY PI^EADING AND PRACTICE. be hence dismissed with his reasonable costs and charges in this behalf expended. Appi^eby & Pearmon, Solicitors for Defendant. ENTRY BY ci,ERK : Plea set dozvn for argument. Kendrick On motion of the plaintiff, by counsel, defend- V. ant's plea is set down for argument. Ouinby. ORDER OF Tiji; COURT : Plea disallowed. Kendrick This cause came on this day to be again heard V. on the papers formerly read, and on the plea Ouinby. the defendant, set down for argument on the plain- tiff's motion, and was argued by counsel. On consideration whereof, the court being of opinion that the statute of limitations set up in said plea is not applicable to the claims asserted in the plaintiff's bill, doth disallow 'the said plea. And the defendant is required to answer the bill within fifteen days from the date of this order. DBFeNDANT'S .\NSWER. The answer of Peter Quinby to a bill of complaint filed against him in the Circuit court of Albemarle county, by John A. Kendrick. This respondent [reserving to himself the benefit of all just exceptions which may be had or taken to said bill by reason of its many errors and imperfections, both of form and substance] ^ for answer to said bill, or to so much thereof as he is advised it is material that he should answer, answering says : 1. That the allegations of the first and second clauses of the said bill, with respect to the contract of sale and purchase be- tween respondent and complainant, of the premises therein re- ferred to, are substantially true, and that the paper Exhibit 1. Old form — may be omitted. FORMS THE ANSWER. 213 "101" filed with the bill is a duplicate original of said contract; and that Exhibits 102a, 102b and 102c are the original promis- sory notes executed by respondent according to the terms of the said contract. It is also true that respondent has been in pos- session of the said premises since the execution of said contract and of said notes. 2. But it is not true that respondent has made no payment on the said deferred installments of purchase money. On the contrary respondent avers that he has, from time to time, made numerous payments on said notes, amounting in the aggregate to two thousand and seven hundred dollars ($2,700), in addi- tion to the cash payment of one thousand and five hundred dol- lars ($1,500). Respondent files herewith, as a part of this an- swer, a more accurate and more detailed statement of such payments, with their respective amounts and dates — such state- ment being marked Exhibit "P. Q." Respondent also files as a part of this answer, receipts for each payment claimed, signed by Adam L. Henderson, attorney for complainant, which said attorney had due authority to receive such payments on behalf of the complainant and to give receipts therefor. These receipts are marked Exhibits "P. O. 1", "P Q. 2" and "P O. 3", re- spectively. 3. Respondent, further answering, says that having full con- fidence in the integrity of the complainant, respondent accepted without question the assurance of complainant that the complain- ant had complete and perfect title to said property, with right to convey the same by his sole deed when said purchase money was paid. But respondent has since ascertained, from reputable sources, and hence avers and charges, that at the time the said contract was made, the complainant was not an unmarried per- son as he fraudulently induced respondent to beheve, but that he was then the husband of a living wife, to-wit, Sarah O. Ken- drick (who was Sarah Owen), who is still living, and who was then, and is now, a person non compos mentis, and who is now, and has been for many years, confined in the State Hospital, for the Insane at Staunton. And respondent is advised that the said wife of the complainant has a contingent right of dower in 214 EQUITY PI^EADING AND PRACTICE. the premises in controversy in this suit, and hence that should respondent be compelled to pay the balance of said purchase money, the complainant would be wholly unable to convey to respondent a complete title to said property. Respondent is therefore advised that not only will the court not compel him to accept an imperfect title to the said premises, but will, in a proper proceeding, rescind the said contract ah initio, and will require the complainant to repay to respondent the various sums heretofore paid by respondent to complainant as part payment for said premises as aforesaid, with interest from the respective dates of such payments. Respondent is further advised that while such failure of title is a perfect defense to the bill of the complainant, it will be necessary in order to obtain the affirmative relief of rescission to which respondent is entitled, that he file a cross-bill in this suit, unless the court should see fit to treat respondent's answer as a cross-bill, which respondent now prays that the court will do. And having fully answered, respondent prays to be hence dismissed with his reasonable costs in this behalf expended. Appi^eby & Pearmon, Solicitors for Respondent. GENERAL replication TO ANSWER. ^ Kendrick For replication to said answer the plaintiff, by V. counsel, says that the matters and things in said Quinby. answer alleged as defenses to the plaintifif's bill are not true. But on the contrary, the plaintiff asserts that the allegations of the. said bill are true, as he will maintain and establish by pro,per testimony. Lemon & Herbert, for complainant. 1. Rarely written out at length, and usually appearing in the rec- ord only by clerk's entry on his docket "Gcn'l. Repl'n.." or recited in the first decree as having been filed. FORMS — THE CROSS-BILL. 215 CROSS-BILL BY DEFENDANT : Praying rescission of contract and return of payments made. To the Honorable the Judge of the Circuit Court of Albemarle county : The cross-bill of your complainant, Peter Quinby, respectfully shows unto your honor : 1. That there is pending in your Honor's court a certain suit in chancery, under the short style of Kendrick v. Quinby, in which suit a certain John A. Kendrick is complainant, and your complainant herein is defendant. 2. That the purpose of the said suit is to compel the specific performance of a certain contract for the sale and purchase of certain real property, in which contract the said Kendrick was vendor and your complainant was vendee — all of which will more fully and at large appear, reference being had to the plead- ings and exhibits in said original suit, which said pleadings and exhibits are prayed to be taken as parts of this cross-bill, as fully and eflfectually as if herein specifically recited. 3. Making specific reference to said contract, under which the said Kendrick, plaintiflf in said original bill, and hereinafter- wards prayed to be made a party defendant to this cross-bill, agreed, upon the payment of six thousand dollars ($6,000.) of purchase money, payable as shown in said contract, to convev to your complainant a perfect title to the premises in the said bill and proceedings mentioned. 4. Your complainant further shows that believing that the defendant herein was an unmarried person (as he falsely pre- tended to be) and had complete title in himself to said prem- ises, and could convey to your complainant a perfect title thereto by his sole deed, your complainant entered into said contract in good faith, and, in like faith, undertook to pay the purchase money according to the terms of the said contract. 5. Your cornplainant further shows that he made the cash payment called for by the terms of said contract, to-wit, one thousand and five hundred dollars ($1,500.), on the day the said contract bears date, to-wit, June 1, 1905: and that subse- quently he paid yarious large sums of money to the said Ken- 216 EQUITY PIvEADING AND PRACTICE. drick, through his duly authorized attorney, a certain Adam L. Henderson, as credits on complainant's notes held by said Ken- drick and representing the deferred installments of purchase money due under said contract. Your complainant has already filed . with his answer in the said original suit, a detailed statement of all the payments so made by him under said contract — which statement is designated as Ex- hibit "P. Q.", and now prayed to be read, along with the vouch- ers accompanying the same, as a part of this cross-bill as if copied herein at large. The aggregate amount of such pay- ments, including the cash payment of fifteen hundred dollars ($1,500.), is forty-two hundred dollars ($4,200.), as shown in the exhibit last mentioned. 6. Your complainant further shows to the court that in spite of the said Kendrick's reiterated assertions to the contrary, fraudulently made* to induce your complainant to enter into the said contract, the said Kendrick was not, at the time the said contract was made, an unmarried person, but on the contrary complainant avers and charges that he was at that time, and is now, the husband of one Sarah O. Kendrick (formerly Sarah Owen), who is still alive and a lunatic, and is now, and for many years previously has been, confined in the State Hospital for the Insane at Staunton. Your complainant is advised that the said wife has a con- tingent right of dower in the property so contracted to be sold to your complainant, by reason whereof it will be impossible for the defendant herein to make to your complainant a complete title to said premises after the payment of said purchase money — and hence that not only will the court for that reason refuse the relief of specific performance prayed for in said original bill, but that on a cross-bill filed for the purpose, the court, if satisfied of the truth of the allegations hereinbefore made, will rescind the said contract ab initio, and will require the said de- fendant herein to repay to your complainant all moneys paid to said defendant under said contract, with interest from the date of such payments, respectively. Being without other remedy, your complainant prays that he may be permitted to file this his cross-bill in said suit; that the FORMS — DEMUERBR TO CROSS-BILL. 217 said John A. Kendrick, complainant in the original bill, be made a party defendant hereto, and may answer the same, but not under oath; that the contcact in the bill and proceedings men- tioned may, for the reasons herein before assigned, be declared null and void and of no effect; that the defendant herein be decreed to repay to your complainant the said sum of forty- two hundred dollars ($4,200.), with interest from the respec- tive dates of such payments; and for such 'other relief, both general and special, as to equity may seem meet and the nature of the case require. And your complainant will ever pray, etc. Appleby & Pearmon, Solicitors for Complainant in Cross-Bill. PLAINTlPlf's DEMURRBE TO CROSS-BILL. Kendrick The demurrer of John A. Kendrick to a cross- V. bill filed against him in the circuit court of Al- Quinby. bemarle county, in a suit in chancery therein pend- ing under the short style of Kendrick v. Quinby : This defendant in said crosB-bill says that the said cross-bill is not sufficient in law, and especially in this, to-wit : ( 1 ) Be- cause, assuming' the existence of this defendant's alleged wife and her alleged insanity, there is no allegation that she is in- curably insane, and hence, so far as concerns the allegations of said cross-bill, the said wife, if she in fact exists, may recover her sanity in time to unite with this defendant in making title to the complainant in the cross-bill ;i (2) Because, in spite of the alleged insanity of the said wife, the court has full power in this suit to require this defendant to give proper indemnitv to the complainant against any loss or damage to accrue by reason of such alleged contingent right of dower in said alleged wife of defendant, which indemnity respondent here offers to provide, in such form and for such amount as the court may prescribe. Wherefore defendant demurs to said cross-bill, and to every part thereof, and to all and every the relief therein prayed for, 1. Counsel has overlooked Va. Code § 3565, making provision for releasing contingent dower right of insane wife. 218 EQUITY PI^EADING AND PRACTICE. and prays judgment whether he shall be required to answer the same. Lemon & Herbert, For Defendant in Cross-Bill. ORDER OE the court : Demurrer to cross-hill overruled. Kendrick This cause came on this day to be again heard V. on the papers formerly read, on the cross-bill of Quinby. the defendant, filed by leave of court, and on the plaintiff's demurrer to said cross-bill and was ar- gued by counsel. On consideration whereof, the court doth overrule the said demurrer. And the plaintiff is ordered to file his plea or an- swer to said cross-bill within fifteen days from the date of this prder. peaintiee's answer to cross-biee. The answer of John A. Kendrick to a cross-bill of complaint filed against him by a certain Peter Quinby, in a certain suit in chancery depending in the circuit court of Albemarle county, in which suit this respondent is plaintiff, and the complainant in said cross-bill is defendant. For answer- to said cross-bill, this respondent says: 1. That the allegations of said cross-bill with reference to the marriage of this respondent to a certain Sarah Owen, are wholly false and without any foundation whatsoever. On the contrary, respondent distinctly and unequivocally denies that he was ever married to the said Sarah Owen, or tO' any other per- son whomsoever ; , but he avers that at the time the contract which is the foundation of this controversy was niade, he was an unmarried person, and has so continued to the present mo- ment. Respondent is at a loss to understand why the complain- ant in the cross-bill should have set up a defense which he must have known was utterly unfounded, unless it should have been for the purpose of prolonging this litigation, and thus securing to himself a continued use of the said property of which he has so long enjoyed possession without complying with the terms of the contract under which he secured such possession. FORMS — ANSWER TO CROSS-BII,L — DEPOSITIONS. 219 2. Further answering, this respondent, with equal emphasis and directness, denies that the said complainant has at any time paid to him, in person or through his duly authorized agent or attorney, or through any other person, any such sums of money as complainant in his said cross-bill has so recklessly alleged, or other sums at any time, or in any manner, save the cash pay- ments made at the time the said contract was entered into, as shown in the original bill. If any such payments were made to the said Adam L. Henderson, as attorney for respondent, as alleged in the cross-bill (which payments respondent does not admit were in fact made), such payments were made wholly at the risk of the said complainant, since respondent here and now, in the most emphatic manner, denies that said Adam L. Henderson ever had authority, express or implied, from respond- ent to act as his agent or attorney in connection with this con- tract or in any other matter. And respondent further denies that he ever received any of said alleged payments, or any por- tion thereof, from or through the said- Adam L. Henderson, or any other person. And having fully answered, respondent prays to be dismissed frpm the proceedings on said cross-bill with his reasonable costs about his defense in this behalf expended. Lemon & Herbert, for respondent in Cross-Bill. To this answer complainant in the cross bill files a general replication. See form supra. The Testimony. [The whole case, on bill and cross-bill, and the several defen- sive pleadings, is now ready for the taking of testimony. A careful study of the pleadings will indicate what the issues are, namely, (1) Has the plaintiff a living mfe, who is entitled to dower in the property in controversy? (2) What payments has the defendant made to the plaintiff, or to his alleged attorney, under the contract, and what is the balance due? The questions of (1) attorney's fees; (2) necessity of filing a conz'eyance with the bill; (3) compelling defendant to accept ^2^ EQUITY PI^EADING AND PRACTICi;. indemnity affainst the contingent right of dower in the alleged wife of plaintiff; (4) the right of defendant to a rescission, if the alleged wife of plaintiiT is alive; and (5) the statute of lim- itations—have all been settled by the decision of the court on the several objections to pleadings in the form of (a) demurrer to the bill, (b) plea set down for argument and (c) demurrer to cross-bill. The evidence to be taken, therefore, will be confined to the two issues of fact recited above.] DEPOSITIONS, Kendrick V. Ouinby and On Original Bill. Ouinby ■Z'. Kendrick On Cross-Bill. The depositions of A, B, C and others taken, in pursuance of the notice hereto attached, before me, Howard Winston, a No- tary Public in and for the county of Albemarle, in the state of Virginia, on the 14th day of November, 19^15, at my office in the Administration Building, University of Virginia, between the hours of 9 A. M. and 6 P. M., to be read as evidence in behalf of the plaintiff in the original bill, in a certain suit in chancery depending in the circuit court of Albemarle county, under the style of Kendrick v. Qitinby, on original bill, and Qmnby v. Kendrick, on cross-bill. Present : John R. Lemon, for plaintiff. 7?. C. Appleby, for defendant. The witnesses whose several depositions follow, being duly sworn to speak the truth, the whole truth and nothing but the truth, depose and say : First witness : James Ada\. Tst question by plaintiff's counsel : Please state your age. resi- dence and occupation. ]?ORMS — DEPOSITIONS. 221 Answer: James Aday — Preston Heights, University, Va. — Law student. 2nd question: Please state whether you know the plaintiff in this suit, how long you have known him, and what your rela- tions with him have been and are. Answer: I do. I have known him intimately for four years, and our relations have been quite close and friendly, etc., etc. Cross-examination by defendant's counsel. 1st Cross-question: Please say whether, etc., etc., etc. Re-examination by counsel for plaintiff. 1st question: In your answer to Mr. Appleby's 14th cross question you say, etc., etc. Please explain precisely what yon mean by that answer. Etc., etc., etc. And further the deponent saith not. (Signed) Jame;s Aday. Second wij;ness : Benj. Brozvn. [Examined in chief — cross-examined and re-examined, and deposition signed, as in the case of the first witness. If there are other witnesses tO' be examined at the same sit- ting, their depositions follow. When the depositions at that sit- ting are closed, the notary attaches a certificate substantially in the following form:] I, Howard Winston, a notary public in and for the county of Albemarle in the state of Virginia, do certify that the fore- going depositions of James Aday, Benjamin Brown, etc., etc., were duly taken, sworn to and subscribed before me at the time and place and for the purpose in the caption mentioned. Given under my hand [and seal^] this the 14th day of No- vember, 191S. (Signed) Howard Winston, Notary Public. My commission expires March 3, 1918. 1. The use of the notary's seal is almost universal, but it is not required in Virginia where the attested document is taken arid is to be used within the state. 222 EQUITY PLEADING AND PRACTICE. DECREE : Dismissing cross-bill^ and order of reference to a master. Note for decree, March Term ipi6. Kendrick V. On Original Bill. Quinby and Quinby On Cross-Bill. Kendrick This cause came on this day to be again heard on the papers formerly read, on the answer of the defendant Peter Quinby, to the original bill, with general replication thereto, on the cross- bill of the said defendant Peter Quinby, filed by leave of court, and on the exhibits, therewith filed, on the answer of the plain- tiff to said cross-bill, with general replication thereto, and on the depositions of witnesses for both plaintiff and defendant, and was argued by counsel. On consideration whereof, the court being satisfied from the testimony that the plaintiff is not the husband of a living wife, and that, in consequence, the title to the property in the bill and proceedings mentioned is not encumbered by the contingent right of dower as alleged in the answer and cross-bill of the defend- ant, but that, on the contrary, the plaintiff is able and willing to perform his contract by conveying a perfect title to the defend- ant, it is adjudged, ordered and decreed that the cross-bill of the defendant be and the ■ same is hereby dismissed at the costs of the said defendant. And the court being unable at this time to ascertain from the testimony what amounts. the defendant has paid to the plaintiff on said contract of sale and purchase, and what amount actually remains unpaid, the court doth adjudge, order and decree that this cause be referred to one of the masters of this court with directions to take, state and settle an account showing what the said balance due under said contract is, with the date or dates front which the same, or the several parts thereof, bear interest. FORMS- — the; master's REPORT. 223 And said 'master will report to the next term of this court how he has executed this decree,' in order that the court may make such further order in the premises as it may be advised. master's report. Kendrick V. Quinby. To the Honorable John IV . Pishburne, Judge of the circuit court of Albemarle county: The undersigned master begs leave respectfully to report that in accordance with the directions of a decree of your honor's court, entered at the March term, 1916, in the above entitled cause, and after giving due notice to the parties thereto, the undersigned proceeded on the first day of April, 1916, to take said account. Both parties appeared in person and by counsel, and much testimony, both in the form of depositions of witnesses and of documents, was introduced on such hearing. All of the testimony introduced before the master is herewith returned for the inspection of the court, in case this shall seem desirable. The proceedings were adjourned from time to time to suit the convenience of the parties. The conclusion of the undersigned is herewith submitted in the form of a statement marked "Master's Exhibit number 1." From this statement it appears that the defendant made sundry payments from time to time under the contract in question, some of which payments were made to the plaintiff personally, but most of them were made to one Adam L. Henderson, as attor- ney for the plaintiff. The plaintiff, in his pleadings and by his evidence before the master, denied the authority of the said attorney to represent him in the matter, but the master is of opinion that the defendant has established the contrary by a preponderance of testimony, and the account has been made up on the basis of the validity of all payments so made to said Henderson in that behalf. The statement referred to shows a balance of principal due the plaintiff of $2,375, with interest thereon from July 17, 1911, 224 EQUITY PLEADING AND PRACTICE. until paid, and the master recommends a decree for that amount in the plaintiff's favor. Respectfully submitted, W. R. Seweli,, Master. Master's fee : 47 hours at $1.— $47. Paid by plaintiiif. W. R. S. plaintiff's FXCgPTlONS TO REPORT: The plaintiff by counsel excepts to the foregoing report of W. R. Sewell, master, and for ground of exception asserts that the finding of the master that the said Henderson was in fact plaintiff's attorney, and authorized to receive payments from the defendant on the plaintiff's behalf, is based on no valid tes- timony in the cause, but rests chiefly on hearsay testimony, to which the plaintiff duly excepted when it was offered by the de- fendant, as will appear by reference to the depositions filed with the said report. The plaintiff makes special reference to the depositions of P, Q, R and S, filed with the master's report, as being the only testimony offered by defendant to establish said Henderson's authority, none of which depositions, nor all combined, would even tend to prove such authority, if the hear- say and incompetent testimony therein were excluded. Respectfully submitted. Lemon & Herbert, for Complainant. decree ; Sustaining exceptions to master's report, and ordering payment by defendant. Note for decree, June term, ipi6. Kendrick This cause came on this day to be again heard on V, the papers formerly read, and on the report of W. R. Quinby. Sewell, master, filed on the 7th day of May, 1916, and on the plaintiff's exceptions to said report, and was argued by counsel. On consideration whereof, the court being satisfied from an FORMS — DECREE SUSTAINING EXCEPTIONS. 225 examination of the said report and of the testimony excepted to, that the plaintiff's exceptions are well taken, dofh sustain the said exceptions, and doth reject the findings of the master in the particulars following, to-wit : That is to say, the court finds, and so adjudges, that the defendant is not entitled to credit for any of the payments shown by the master's statement to have been made to Adam L. Henderson, alleged attorney for plain- tiff, but is entitled to credit only for such payments as are shown by said statement to have been made to the plaintiff personally. And it appearing that the rejected credits may be ascertained by a mere inspection of the said report and statement, and that the balance then due the plaintiff may be ascertained by a statement made up at the bar of the court by counsel, under directions of the court, the court deems it unnecessary to refer the said report back to the master for further proceedings. Adopting, therefore, the statement so made up at the bar of the court, as exhibiting the true state of the account between the parties, and which is ordered to be filed with the papers in this cause, and it appearing from such statement that the balance so due is represented by what follows, the court doth adjudge, order and decree that the defendant do, within 60 days from the entry of this decree, pay to the plaintiff the sum of $3,650, with legal interest thereon from the 13th day of August, 1911, until paid, together with the costs of this suit. The court doth further adjudge, order and decree that before demanding payment of the sum hereinbefore decreed, the plain- tiff shall file with the clerk of this court, as a part of the record in this cause, a proper deed of conveyance, properly executed, acknowledged and certified, conveying the property in the bill and proceedings mentioned to the defendant, or to such person as he may, in writing, filed with the papers in this cause, direct — such conveyance to contain the usual covenants of warranty, and to be delivered by the clerk to the defendant, upon written acknowledgment of the plaintiff, or his counsel, that the defend- ant has fully satisfied this decree. And the court doth retain the cause for such further proceed- ings as may be necessary, in case the defendant shall fail or refuse to obey the mandate of this decree. —15 226 EQUITY PLEADING AND PRACTICE. Notes on the foregoing decree. [1. If the defendant perform the decree, he receives his con- veyance, and the plaintiff his purchase money, so that there is no need of further continuing the cause on the docket. In which case, on motion of the plaintiff, an order is entered that "the objects of this suit having been accomplished it is ordered to be stricken from the docket." 2. If. the decree be not performed, the plaintiff will ask for a decree subjecting the property tO' his vendor's (legal) lien, as set out in the bill — in which case there may be the following further proceedings — the precise proceedings depending some- what on circumstances : 1. Decree appointing a special commissioner to make sale of the property, on terms prescribed in the decree. 2. Sale by the commissioner. 3. Report of sale, by the commissioner to the court. 4. Confirmation of the sale by the court — or rejection and order for a re-sale. 5. Order to the commissioner, or the general receiver, or a specially appointed receiver,^ to collect the purchase money, as the installments fall due. 6. Reports of the commissioner or receiver, from time to time, showing the amount of his collections. 7. Orders, from time to time, directing the cominissioner or receiver to pay over to plaintiff such balance as he has in his hands, as a credit on plaintiff's debt. 8. After the purchase money is paid in full by the pur- chaser at the judicial sale, an order is made appointing a special master (or commissioner) to convey the title to the purchaser. 9. After plaintiff's balance is. all paid, and the costs pro- vided for, an order is entered directing the net balance to be paid over to the defendant. 10. Filing of receiver's final report — its confirmation by the court, and an order dismissing the cause from the docket 1 1. Va. Code § 3401. fORMS^ — AFFIDAVITS. 227 OTHER FORMS IN EQUITY. [Subjoined are a few other familiar forms used in the equity practice, with which the young' practitioner should cultivate a close and intimate acquaintance.] AFFIDAVITS. (1) Virginia Form.^ Virginia, County of Albemarle, to-wit: I, Howard Winston, a Notary Public (or a justice of the peace, or a commissioner in chancery) for the State and county aforesaid do certify that Peter Quinby whose name is signed to the foregoing answer, this day made oath before me, in my said county, that the matters and things therein stated as of his own knowledge are true, and those stated as on the information of others he believes to be true. Given under my hand this the 17th day of April, 1916. (Signed) Howard Winston. My commission expires March 3, 1918. (2) The more usual form of Affidavit in other States. Virginia, County of Albemarle, to-wit: Peter Quinby being duly sworn [on the Holy Evangely of Almighty God] deposes and says that the matters and things in the foregoing answer stated as of his own knowledge, are true, and those stated as on information and belief he believes to be true. (Signed) Peter Quinby. Sworn to and subscribed before me, by the affiant, Peter 1. This form of affidavit, practically universal in Virginia, differs from that prevailing generally in other states in the following par- ticulars: (1) It is wholly the language of the notary; (2) It is not signed by the affiant; and (3) the notarial seal is not affixed. 228 EQUITY PIvEADING AND PRACTICE. Ouinby, who is well known to me, this the 17th day of April, Anno Domini, 1916. (Signed) Howard Winston, (OFFICIAL SEAL) ' Notary Public. My commission expires March 3, 1918. PREI,IMINARY injunction ORDER. On the motion of the plaintiff, an injunction is awarded against the defendant, the Chesapeake and Ohio Railway Company, re- straining and prohibiting the said defendant, its agents and servants, from entering, or in any wise trespassing upon or injuring, the lot of ground in the bill mentioned, until the fur- ther order of this court. But the plaintiff shall not have the benefit of this order (or this order shall not become effective) until the plaintiff, or some one for him shall have entered into bond, before the clerk of this court, with good security to be approved by said clerk in the penalty of five hundred dollars ($500.) conditioned to an- swer all costs and damages which may be awarded against him in case this injunction shall be dissolved. (Signed) John W. Fishburne, Judge. 'To the Clerk of the Circuit Court of Albemarle county. RULE TO SHOW cause. 1. On petition filed. On the motion of Hiram Q. Abernathy, he hath leave to file his petition in this cause, which is accordingly done. And on like motion a rule is awarded against Aaron Applegarth and Amelia Applegarth, his wife, defendants named in the said pe- tition, to appear here on the first day of the April term of this court next, to show cause if any they have or can show why the prayer of the said petition shall not be granted. 2. On contempt charge. It being represented to the court by affidavits filed by the plaintiff in this cause that the defendant, the Chesapeake & Ohio Railway Company, and its chief engineer, Robert C. Calloway, FORMS — RULE TO SHOW CAUSE. 229 are in contempt of this court in having violated the injunction heretofore awarded the plaintiflf in this cause, enjoining and restraining the said defendant and its agents and servants from entering or otherwise trespassing upon or injuring the property of the plaintiflf in the bill and proceedings mentioned, on the motion of the plaintiflf a rule is awarded against the said de- fendant, the Chesapeake and Ohio Railway Company, and the said Robert C. Calloway to appear here tomorrow, the 17th of June, 1916, to show cause if any they have or can show why they shall not be attached or otherwise proceeded against ac- cording to law, for their said contempt. APPENDIX II. The New Federal Equity Rules of 1912 RULE 1. DISTRICT COURT ALWAYS OPEN FOR CERTAIN PUR- POSES—ORDERS AT CHAMBERS. The district courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interloc- utory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's office, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. 2. CLERK'S OFFICE ALWAYS OPEN, EXCEPT, ETC. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attend- ance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. 3. BOOKS KEPT BY CLERK AND ENTRIES THEREIN. The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all ap- pearances shall be noted briefly and chronologically in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled "Order Book," in which shall be entered at length, in the order of their making, all orders 231 232 BQUITY PI^EADING AND PRACTICE. made or passed by him as of cours'e and also all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be en- tered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. 4. NOTICE OF ORDERS. Neither the noting of an order in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solicitors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise di- rected by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as suffi- cient proof of due notice of the order. MOTIONS GRANTABLE OF COURSE BY CLERK. All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and applications grantable of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. 6. MOTION DAY. Each district court shall establish regular times and places, not less than once each month, when motions requiring notice and hear- ing may be made and disposed of; but the judgt may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory orders, rulings and proceedings for the advancement, conduct and hearing of causes. If the public in- terest permits, the senior circuit judge of the circuit may dispense with the motion day during not to exceed two months in the year in any district. 7. PROCESS, MESNE AND FINAL. The process of subpcena shall constitute the proper mesne proc- EQUITY rui.es. 233 ess in all suits in equity, in the first instance, to require the de- fendant to appear and answer the bill; and, unless otherwise pro- vided in these rules or specially ordered by the court, a writ of attachment, and, if the defendant cannot be found, a writ of seques- tration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court. 8. ENFORCEMENT OF FINAL DECREES. Final process to execute any decree may, if the decree be solely for the payment of money, be by a writ of execution,, in the form used in the district court in suits at common law in actions of as- sumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a conveyance of land or the delivering up of- deeds or other documents, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of seques- tration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a mandatory order, injunction or decree for the specific performance of any act or con- tract be not complied with, the court or a judge, besides, or instead of, proceedings against the disobedient party for a contempt or by sequestration, may by order direct that the act required to be done be done, so far as practicable, by some other person appointed by the court or judge, at the cost of the disobedient party, and the act, when so done, shall have like efifect as if done by him. 9. WRIT OF ASSISTANCE. When any decree or order is for the delivery of possession, upon proof made by affidavit of a demand .and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. 234 EQUITY PI,EADING AND PRACTICE. 10. DECREE FOR DEFICIENCY IN FORECLOSURES, ETC. In suits for the foreclosure of mortgages, or the enforcement of other liens, a decree may be rendered for any balance that may be found due to the plaintiff over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in rule 8 when the decree is solely for the payment of money. 11. PROCESS IN BEHALF OF AND AGAINIST PERSONS NOT PARTIES. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, may enforce obedience to such order by the same process as if he were a party; and every person, not being a party, against whom obe- dience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such orders as if he were a party. 12. ISSUE OF SUBPCENA— TIME FOR ANSWER. Whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof. At the bottom of the subpoena shall be placed a memo- randum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants. 13. MANNER OF SERVING SUBPCENA. The service of all subpoenas shall be by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member of or resident in the family. 14. ALIAS SUBPCENA. Whenever any subpoena shall be returned not executed as to an3' EQUITY RULES. 235 defendant, the plaintiff shall be entitled to other subpoenas against such defendant, until due service is made. 15. PROCESS, BY WHOM SERVED. The service of all process, mesne and final, shall be by the mar- shal of the district, or his cleputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affi- davit thereof. 16. DEFENDANT TO ANSWER— DEFAULT— DECREE PRO CON- FESSO. It shall be the duty of the defendant, unless the time shall be en- larged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpcena- as required by rule 13. In default thereof the plain- tiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte. 17. DECREE PRO CONFESSO TO BE FOLLOWED BY FINAL DECREE— SETTING ASIDE DEFAULT. When the bill is taken pro confesso the court may proceed to a final decree at any time after the expiration of thirty days after the entry of the order pro confesso, and such decree shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit. No such motion shall be granted, unless upon the payment of the costs of the plaintiff 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. 18. PLEADING— TECHNICAL FORMS ABROGATED. Unless otherwise prescribed by statute or these rules the tech- nical forms of pleadings in equity are abolished. 19. AMENDMENTS GENERALLY. The court may at any time, in furtherance of justice, upon such 236- EQUITY PLEADING AND PRACTICE. terms as may be just, permit any process, proceeding, pleading or record to be amended, or material supplemental matter to be set forth in. an amended or supplemental pleading. The court, at every stage of the proceeding, must disregard any error or defect in the proceeding which does not afifect the substantial rights of the parties. 20. FURTHER ANID PARTICULAR STATEMENT IN PLEADING MAY BE REQUIRED. A further and better statement of the nature of the claim or de- fense, or further and better particulars of any matter stated in any pleading, may in any case be ordered, upon such terms, as to costs and otherwise, as may be just. 21. SCANDAL AND IMPERTINENCE. The right to except to bills, answers, and other proceedings for scandal or impertinence shall not obtain, but the court may, upon motion or its own initiative, order any redundant, impertinent or scandalous matter stricken out, upon such terms as the court shall think fit. 22. ACTION AT LAW ERRONEOUSLY BEGUN AS SUIT IN EQUITY— TRANSFER. If at any time it appear that a suit commenced in equity should have been brought as an action on the law side of the court, it shall be forthwith transferred to the law side and be there proceeded with, with only such alteration in the pleadings as shall be essential. 23. MATTERS ORDINARILY DETERMINABLE AT LAW, WHEN ARISING IN SUIT IN EQUITY TO BE DISPOSED OF THEREIN. If in a suit in equity a matter ordinarily determinable at law arises, such matter shall be determined in that suit according to the prin- ciples applicable, without sending the case or question to the law side of the court. 24. SIGNATURE OF COUNSEL. Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so EQUITY RULES. 237 signed by him; that upon the instructions laid before him regard- ing 'the case there is good ground for the same; that no scandalous matter is inserted in the pleading; and that it is not interposed for delay. 25. BILL OF COMPLAINT— CONTENTS. Hereafter it shall be sufficient that a bill in equity shall contain, in addition to the usual caption: First, the full name, when known, of each plaintiff and defend- ant, and the citizenship and residence of each party. If any party be under any disability that fact shall be stated. Second, a short and plain statement of the grounds upon which the court's jurisdiction depends. Third, a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evi- dence. Fourth, if there are persons other than those named as defend- ants who appear to be proper parties, the bill should state why they are not made parties — as that they are not within the jurisdiction of the court, or cannot be made parties without ousting the jurisdic- tion. Fifth, a statement of and prayer for any special relief pending the suit or on final hearing, which may be stated and sought in alter- native forms. If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked. 26. JOINDER OF CAUSES OF ACTION. The plaintiff may join in one bill as many causes of action, cog- nizable in equity, as he may have against the defendant. But when there are more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant 'the liability must be one asserted against all of the material defendants, or sufficient grounds must appear- for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such causes of action cannot be conveniently disposed of to- gether, the court may order separate trials. 27. STOCKHOLDER'S BILL. Every bill brought by one or more stockholders in a corporation : against the corporation and other parties, founded on rights which 238 EQUITY PLEADING AND PRACTICE. may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a share- holder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the sharehold- ers, and the causes of his failure to obtain such action, or the rea- sons for not making such effort. AMENDMENT OF BILL AS OF COURSE. The plaintiff may, as of course, amend his bill before the defend- ant has responded thereto, but if such amendment be filed after any ■copy has issued from the clerk's office, the plaintiff at his own cost shall furnish to the solicitor of record of each opposing party a copy of the bill as amended, unless otherwise ordered by the court or judge. After pleading filed by any defendant, plaintiff may amend only by consent of the defendant or leave of the court or judge. 29. DEFENSES— HOW PRESENTED. Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, non- joinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and dis- posed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered. 30. ANSWER— CONTENTS— COUNTER-CLAIM. The defendant in his answer shall in short and simple terms set EQUITY RULES. 239 out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial, of the aver- ments of the bill, but specifically admitting or denying or explain- ing the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so state, such state- ■ ment operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any aver- ment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. ■ The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-ofif or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross-claims. 31. REPLY— WHEN REQUIRED— WHEN CAUSE AT ISSUE. Unless the answer assert a set-off or counter-claim, no reply shall be required without special order of the court or judge, but the cause shall be deemed at issue upon the filing of the answer, and any new or affirmative matter therein shall be deemed to be denied by the plaintiff. If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill. 32. ANSWER TO AMENDED BILL. In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental an- swer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by 240 EQUITY PI,EADING AND PRACTICE. a judge of the court; and upon a default, the like proceedings may be had as upon an omission to put in an answer. 33. TESTING SUFFICIENCY OF DEFENSE. Exceptions for insufficiency, of an answer are abolished. But if an answer set up an affirmative defense, set-ofif or counter-claim, the plaintiff may, upon five days' notice, or such further time as the court may allow test the sufficiency of the same by motion to strike out. If found insufficient but amendable, the court may allow an amendment upon terms, or strike out the matter. 34. SUPPLEMENTAL PLEADING. Upon application of either party the court or judge may, upon reasonable notice and such terms as are just, permit him to file and serve a supplemental pleading, alleging material facts occurring after his former pleading, or of which he was ignorant when it was made, including the judgment or decree of a competent court rendered after the commencement of the suit, determining the matters in controversy or a part thereof. 35. BILLS OF REVIVOR AND SUPPLEMENTAL BILLS— FORM. It shall not be necessary in any bill of revivor or supplemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. 36. OFFICERS BEFORE WHOM PLEADINGS VERIFIED. Every pleading which is required to be sworn to by statute, or these rules, may be verified before any justice or judge of any court of the United States, or of any State or Territory, or of the District of Columbia, or any clerk of any court of the United States, or of any Territory, or of the District of Columbia, or any notary public. 37. PARTIES GENERALLY— INTERVENTION. Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly author- EQUITY RUtES. 241 ized by statute, may sue in his own name without joining with liim the party for whose benefit the action is brought. All persons hav- ing an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Per- sons having a united interest must be joined on the same side as plaintiffs or defendants, but when anyone refuses to join, he may for such reason be made a defendant. Anyone claiming an interest in the litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding. 38. REPRESENTATIVES OF CLASS. When the question is one of common or general interest to many persons constituting a class so numerous as to make it impractica- ble to bring them all before the court, one or more may sue or de- fend for the whole. 39. ABSENCE OF PERSONS WHO WOULD BE PROPER PARTIES. In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, can not be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. 40. NOMINAL PARTIES. Where no account, payment, conveyance, or other direct relief is sought against a party to a suit, not being an infant, the party, upon service of the subpcena upon him, need not appear and answer the bill, 'unless the plaintiff specially requires him to do so by the prayer; but he may appear and answer ^t his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall require him to appear and answer —16 242 EQUITY PI,]JADING AND PRACTICE. he shall be entitled to the costs of all the proceedings against him, unless the court shall otherwise direct. 41. SUIT TO EXECUTE TRUSTS OF WILL— HEIR AS PARTY. In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to 'make the heir at law a party where he desires to have the will established against him. 42. JOINT AND SEVERAL DEMANDS. In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. 43. DEFECT OF PARTIES— RESISTING OBJECTION. Where the defendant shall by his answer suggest that the bill of complaint is defective for want of parties, the plaintiff may, within fourteen days after answer filed, set down the cause for argument as a motion upon that objection only; and where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order to amend his bill by adding parties; but the court shall be at liberty to dismiss the bill, or to allow an amendment on such terms as justice may require. 44. DEFECT OF PARTIES— TARDY OBJECTION. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by motion or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the court shall be at liberty to make a decree saving the rights of the absent parties. 45. DEATH OF PARTY— REVIVOR. In the event of the death of either party the court may, in a EQUITY RULES. 243 proper case, upon motion, order the suit to be revived by the substi- tution of the proper parties. If the successors or representatives of the deceased party fail to make such application within a reasonable time, then any other party may, on motion, apply for such relief, and the court, upon any such motion, may make the necessary or- ders for notice to the parties to be substituted and for the filing of such pleadings or amendments as may be necessary. 46. TRIAL— TESTIMONY USUALLY TAKEN IN OPEN COURT- RULINGS ON OBJECTIONS TO EVIDENCE. In all trials in equity the testimony of witnesses shall be taken orally in open court, except as otherwise provided by statute or these rules. The court shall pass upon the admissibility of all evi- dence ofifered as in actions at law. When evidence is offered ana excluded, and the party against whom the ruling is made excepts thereto at the time, the court shall take and report so much thereof, or make such a statement respecting it, as will clearly show the character of the evidence, the form in which it was ofifered, the ob- jection made, the ruling, and the exception. If the appellate court shall be for opinion that the evidence should have been admitted, it shall not reverse the decree unless it be clearly of opinion that ma- terial prejudice will result from an affirmance, in which event it shall direct such further steps as justice may require. 47. DEPOSITIONS— TO BE TAKEN IN EXCEPTIONAL INSTANCES. The court, upon application of either party, when allowed by stat- ute, or for good and exceptional cause for departing from the gen- eral rule, to be shown by affidavit, may permit the deposition of named witnesses, to be used before the court or upon a reference to a master, to be taken before an examiner or other named officer, upon the notice and terms specified in the order. All depositions taken under a statute, or under any such order of the court, shall be taken and filed as follows, unless otherwise ordered by the court or judge for good cause shown: Those of the plaintiff within sixty days from the time the cause is at issue; those of the defendant within thirty days from the expiration of the time for the filing of plaintiff's depositions; and rebutting depositions by either party within twenty days after the time for taking original depositions expires. 244 EOUITY PI^EADING AND PRACTICE. 48. TESTIMONY OF EXPERT WITNESSES IN PATENT AND TRADE-MARK CASES. In a case involving the validity or scope of a patent or trademark, the District Court may, upon petition, order that the testimony in chief of expert witnesses, whose testimony is directed to matters of opinion, be s6t forth in affidavits and filed as follows: Those of the plaintiff within forty days after the cause is at issue; those of the defendant within twenty days after plaintiff's time has expired: and rebutting affidavits within fifteen days after the expiration of the time for filing original affidavits. Should the opposite party desire the production of any affiant for cross-examination, the court or judge shall, on motion, direct that said cross-examination and any re-examination take place before the court upon the trial, and unless the affiant is produced and submits to cross-examination in com- ■ pliance with such direction, his affidavit shall not be used as evi- dence in the cause. 49. EVIDENCE TAKEN BEFORE EXAMINERS, ETC. All evidence offered before an examiner or like officer, together with any objections, shall be saved and returned into the court. Depositions, whether upon oral examination before an examiner or like officer "or otherwise, shall 'be taken upon questions and answers reduced to writing, or in the form of narrative, and the witness shall be subject to cross and re-examination. 50. STENOGRAPHER— APPOINTMENT— FEES. When deemed necessary by the court or officer taking testimony, a stenographer may be appointed who shall take down testfmony in shorthand, and, if required, transcribe the same. His fee shall be fixed by the court and taxed ultimately as costs. The expense of taking a deposition, or the cost of a transcript, shall be advanced by the party calling the witness or ordering the transcript. 61. EVIDENCE TAKEN BEFORE EXAMINERS, ETC. Objections to the evidence, before an examiner or like officer, shall be in short. form, stating the grounds of objection relied upon, but no transcript filed by such officer shall include argument or debate. The testimony of each witness, after being reduced to writing, shall be read over to or by him, and shall be signed by him in the pres- ence of the officer; provided, that if the witness shall refuse to sign DQUITY RULES. 245 his deposition so taken, the officer shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. Objection to any question or questions shall be noted by the officer upon the deposition, but he shall not have power to de- cide on the competency or materiality or relevancy of the questions. The court shall have power, and it shall be its duty, to deal with the costs' of incompetent and immaterial or irrelevant depositions, or parts of them, as may be just. 52. ATTENDANCE OF WITNESSES BEFORE COMMISSIONER, MASTER OR EXAMINER. Witnesses who live within the district, and whose testimony may be taken out of court by these rules, may be summoned to appear before a commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpcena in the usual form, which may be issued by the clerk in blank and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same com- pensation as for attendance in court; and if any witness shall refuse to appear or give evidence it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in, the court. In case of refusal of witnesses to attend or be sworn or to answer any question put by the commissioner, master or examiner or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. 53. NOTICE OF TAKING TESTIMONY BEFORE EX- AMINER, ETC. Notice shall be given by the respective counsel or parties to the opposite counsel or parties of the time and place of examination be- fo're an examiner or like officer for such reasonable time as the court or officer may fix by order in each case. 54. DEPOSITIONS UNDER REV. STAT. §§ 863, 866, 867— CROSS- EXAMINATION. After a cause is at issue, depositions may be taken as provided by 246 EQUITY PI,EADING AND PRACTICE. * Sections 863, 865, 866 and 867, Revised Statutes. But if in any case no notice has been given the opposite party of the time and place of taking the deposition, he shall, upon application and notice, be en- titled to have the witness examined orally before the court, or to a cross-examination before an examiner or like officer, or a new depo- sition- taken with notice, as the court or judge under all the circum- stances shall order. 55. DEPOSITIONS DEEMED PUBLISHED WHEN FILED. Upon the filing of any deposition or affidavit taken under these rules or any statute, it shall be deemed published, unless otherwise ordered by the court. ON EXPIRATION OF TIME FOR DEPOSITIONS, CASE GOES ON TRIAL CALENDAR. After the time has elapsed for taking and filing depositions under these rules, the case shall be placed on the trial calendar. There- after no further testimony by deposition shall be taken except for some strong reason shown by affidavit. In every such application the reason why the testimony of the witness cannot be had orally on the trial, and why his deposition has not been before taken, shall be set forth, together with the testimony which it is expected the witness will give. 57. CONTINUANCES. After a cause shall be placed on the trial calendar it may be passed over to another day of the same term, by consent of counsel or order of the court, but shall not be continued beyond the term save in exceptional cases by order of the court upon good cause shown by affidavit and upon such terms as the court shall in its discretion impose. Continuances beyond the term by consent of the parties shall be allowed, on condition only that a stipulation be signed by counsel for all the parties and that all costs incurred there- tofore be paid. Thereupon an order shall be entered dropping the case from the trial calendar, subject to reinstatement within one year upon application to the court by either party, in which event it shall be heard at the earliest convenient day. If not so reinstated within the year, the suit shall be dismissed without prejudice to a new one. EQUITY RULES. 247 58. DISCOVERY— INTERROGATORIES— INSPECTION AND PRO- DUCTION OF DOCUMENTS— ADMISSION OF EX- ECUTION OR GENUINENESS. The plaintiflf at any time after filing the bill and not later than twenty-one days after the joinder of issue, and the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause, with a note at the foot thereof stating which of the interrogatories each of the parties is required to answer. But no party shall file more than one set of interrogatories to the same party without leave of the court or judge. If any party to the cause is a public or private corporation, any opposite party may apply to the court or judge for an order allow- ing him to file interrogatories to be answered by any officer of the corporation, and an order may- be made accordingly for the ex- amination of such officer as may appear to be proper upon such interrogatories as the court or judge shall think fit. Copies shall be filed for the use of the interrogated party, and shall be sent by the clerk to the respective solicitors of record, or to the last known address of the opposite party, if there be no record solicitor. Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have beeti served, unless the time be enlarged by the court or judge. Each interrogatory shall be answered separately and fully and the answers shall be in writ- ing, under oath, and signed by the party or corporate officer inter- rogated. "Within ten days after the service of interrogatories, ob- jections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose .so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required. The court or judge, upon motion and reasonable notice, may make all such orders as may be appropriate to enforce answers to in- terrogatories or to effect the inspection or production of docu- ments in the possession of either party and containing evidence ma- terial to the cause of action or defense of his adversary. Any party failing or refusing to comply with such an order shall be liable to attachment, and shall also be liable, if a plaintiflf, to have his bill dismissed, and if a defendant, to have his answer stricken out and be placed in the same situation as if he had failed to answer. 248 KQUITY PLEADING AND PRACTICE. By a demand served ten days before the trial, either party may call on the other to admit in writing the execution or genuineness of any document, letter or writing, saving all just exceptions; and if such admission be not made within five days after such service, the costs of proving the document, letter or writing shall be paid by the party refusing or neglecting to make such admission, unless at the trial the court shall find that the refusal or neglect was rea- sonable. 59. REFERENCE TO MASTER— EXCEPTIONAL, NOT USUAL. Save in matters of account,' a reference to a master shall be the exception, not the rule, and shall be made only upon a showing that some exceptional condition requires it. When such a refer- ence is made, the party at whose instance or for whose benefit it is made shall cause the order of reference to be presented to the mas- ter for a hearing within twenty days succeeding the time when the reference was made, unless a longer time be specially granted by the court or judge; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. 60. PROCEEDINGS BEFORE MASTER. Upon every such reference, it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties, or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his dis- cretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjourn- ment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay. 61. MASTER'S REPORT— DOCUMENTS IDENTIFIED BUT NOT SET FORTH. In the reports made by the master to the court, no part of any state of facts, account, charge, affidavit, deposition, examination, or EQUITY RUIZES. 249' answer brought in or used before him shall be stated or recited. But such state of facts, account, charge, affidavit, deposition, examina- tion, or answer shall be identified, and referred to, so as to inform the court what state of facts, account, charge, affidavit, deposition, examination, or answer were so brought in or used. 62. POWERS OF MASTER. The master shall regulate all the proceedings in every hearing before him, upon every reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouchers, and other docuinents applicable thereto; and also to examine on oath, viva voce, all witnesses pro- duced by the parties before him, or by deposition, according to the acts of Congress or otherwise, as here provided; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts, and direct all other inquiries and proceedings in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. 63. FORM OF ACCOUNTS BEFORE MASTER. All parties accounting before a master shall bring in their respec- tive accounts in the form ,of debtor and creditor; and any of the other parties who shall not be satisfied with the account so brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories, as the master shall direct. 64. FORMER DEPOSITIONS, ETC., MAY BE USED BEFORE MASTER. All affidavits, depositions, and documents which have been pre- viously made, read, or used in the court upon any proceeding in any cause or matter may be used before the master. 65. CLAIMANTS BEFORE MASTER EXAMINABLE BY HIM. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrog- atories or viva voce, or in both modes, as the nature of the case may appeal to him to require. The evidence upon such examinations 250 EQUITY pi,e;ading and pkactice. shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary. 66. KETURN OF MASTER'S REPORT— EXCEPTIONS— HEARING. The master, as soon as his report is ready, shall return the same into the clerk's office and the day of the return shall be entered by the clerk in the Equity Docket. The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court, if then in session, or, if not, at the next sitting held thereafter, by adjournment or otherwise. 67. COSTS ON EXCEPTIONS TO MASTER'S REPORT. In order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled, shall, for every exception overruled, pay five dollars costs to the other party, and for every exception allowed shall be entitled to the same costs. 6S. APPOINTMENT AND COMPENSATION OF MASTER. The District Courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof con- curring in the appointment), and they may also appoint a master pro hoc vice in any particular case. The compensation to be al- lowed to every master shall be fixed by the district court, in its discretion, having regard to all the circumstances thereof, and the compensation shall be charged upon and borne by such of the par- ties in the cause as the court shall direct. The master shall not retain his report as sectirity for his compensation; but when the compensation is allowed by the court, he shall be entitled to an at- tachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. 69. PETITION FOR REHEARING. 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, EQUITY RUIZES. 251 shall be verified by the oath of the party or by some other person. No rehearing shall be granted after the term at which the final de- cree of the court shall have been entered and recorded, if an appeal lies to the Circuit Court, of Appeals or 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. 70. SUITS BY OR AGAINST INCOMPETENTS. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other persons who are under guardianship, or otherwise incapable of suing for them- selves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami; subject, however, to such orders as the court or judge may direct for the protection of infants and other persons. 71. FORM OF DECREE. In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the report of any master, nor any other prior 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 fur- ther heard, as the case may be) at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz;" (Here insert the decree or order.) 72. CORRECTION OF CLERICAL MISTAKES IN ORDERS AND DECREES. Clerical mistakes in decrees or decretal orders, or errors arising from any accidental slip or omission, may, at any time before the close of the term at which final decree is rendered, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. 73. PRELIMINARY INJUNCTIONS AND TEMPORARY RE- STRAINING ORDERS. No preliminary injunction shall be granted without notice to the opposite party. Nor shall any temporary restraining order be granted without notice to the opposite party, unless it shall clearly 252 EQUITY PLJJADING AND PRACTICE. Jippear from specific facts, shown by affidavit or by the verified bill, that immediate and irreparable ^ loss or damage will result to the applicant before the matter can be heard on notice. In case a tem- porary restraining' order shall be granted without notice, in the con- tingency specified, the matter shall be made returnable at the earliest possible time, and in no event later than ten days from the date of the order, and shall take precedence of all matters, except older matters of the same character. When the matter comes up for hearing the party who obtained the temporary restraining order shall proceed with his application for a preliminary injunction, and if he does not do so the court shall dissolve his temporary restrain- ing order. Upon two days' notice to the party obtaining such tem- porary restraining order, the opposite party may appear and move the dissolution or modification of the order, and in that event the court or judge shall proceed to hear and determine the motion as expeditiously as the ends of justice may require. Every temporary restraining order shall be forthwith filed in the clerk's office. 74. INJUNCTION PENDING APPEAL. When an appeal from a final decree, in an equity suit, granting ot dissolving an injunction, is allowed by a justice or a judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order suspending, modifying or restoring the injunction during the pendency of the appeal, upon such terms, as to bond or otherwise, as he may consider proper for the security of the rights of the opposite party. 75. RECORD ON APPEAL— REDUCTION AND PREPARATION. In case of appeal: (a) It shall be the duty of the appellant or his solicitor to file with the clerk of the court from which the appeal is prosecuted, together with proof or acknowledgment of service of a copy on the appellee or his solicitor, a pracipe which shall indicate the por- tions of the record to be incorporated into the transcript on such appeal. Should the appellee or his solicitor desire additional por- tions of the record incorporated into the transcript, he shall file with the clerk of the court his precipe also within ten days there- after, unless the time shall be enlarged by the court or a judge thereof, indicating such additional portions of the record desired by him. (b) The evidence to be included in the record shall not be set forth in full, but shall be stated in simple and condensed form, all EQUITY RULES. • 253 parts not essential to the decision of the questions presented by the appeal being omitted and the testimony of witnesses being stated only in narrative form, save that if either party desires it, and the court or judge so directs, any part of the testimony shall be re- produced in the exact words of the witness. The duty of so con- densing and stating the evidence shall rest primarily on the ap- pellant, who shall prepare his statement thereof and lodge the same in the clerk's office for the examination of the other parties at or before the 'time of filing his prcecipe under paragraph (a) of this rule. He shall also notify the other parties or their solicitors of such lodgment and shall name a time and place when he will ask the court or judge to approve the statement, the time so named to be at least ten days after such notice. At the expiration of the time named or such further time as the court or judge may allow, the statement, together with any objections made or amendments proposed by any party, shall be presented to the court or the judge, and if the statement be true, complete and properly prepared, it shall be approved by the court or judge, and if it be not true, com- plete or properly prepared, it shall be made so under the direction of the court or judge and shall then be approved. When approved, it shall be filed in the clerk's office and become a part of the record for the purposes of the appeal. (c) If any difference arise between the parties concerning direc- tions as to the general contents of the record to be prepared on the appeal, such difference shall be submitted to the court or judge in conformity with the provisions of paragraph (h) of this rule, and shall be covered by the directions which the court or judge may give on the subject. 76. RECORD ON APPEAL— REDUCTION AND PREPARATION- COSTS— CORRECTION OF OMISSIONS. In preparing the transcript on an appeal, especial care shall be taken to avoid the inclusion of more than one copy of the same paper and to exclude the formal and immaterial parts of all exhibits, doc- uments and other papers included therein; and for any infraction of this or any kindred rule the appellate court may withhold or impose costs as the circumstances of the case and the discourage- ment of like infractions in the future may require. Costs fo.r such an infraction may be imposed upon offending solicitors as well as parties. If, in the transcript, anythi;ig material to either party be omitted by accident or error, the appellate court, on a proper suggestion or its own motion, may direct that the omission be corrected by a supplemental transcript. 254 , JiQUITY PI,EADING AND PRACTICE. 77. RECORD ON APPEAL— AGREED STATEMENT. When the questions presented by an appeal can be determined by the appellate court without an examination of all the pleadings and evidence, the parties, with the approval of the District Court or the judge thereof, may prepare and sign a statement of the case showing how the questions arose and were decided in -the District Court, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the Appellate Court. Such statement, when filed in the office of the clerk of the District Court, shall be treated as super- seding, for the purposes of the appeal, all parts of the record other than the decree from which the appeal is taken, and, together with such decree, shall be copied and certified to the Appellate Court as the record on appeal. 78. AFFIRMATION IN LIEU OF OATH. Whenever under these rules an oath is or may be required to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. 79. ADDITIONAL RULES BY DISTRICT COURT. With the concurrence of a majority of the circuit judges for the circuit, the District Courts may make any other and further rules and regulations for the practice, proceedings and process, mesne and final, in itheir respective districts, not inconsistent with the rules hereby prescribed, and from time to time alter and amend the same. 80. COMPUTATION OF TIME— SUNDAYS AND HOLIDAYS. When the time prescribed by these rules for doing any act ex- pires on a Sunday or legal holiday, such time shall extend to and include the next succeeding day that is not a Sunday or legal hol- iday. 81. THESE RULES EFFECTIVE FEBRUARY 1, 1913 —OLD RULES ABROGATED. These rules shall be in force on and after February 1, 1913, and shall govern all proceedings in cases then pending or thereafter EQUITY RULES. 255 brought, save that where in any then pending cause an order has been made or act done which cannot be changed without doing sub- stantial injustice, the court may give effect to such order or act to the extent necessary to avoid any such injustice. All rules theretofore prescribed by the Supreme Court, regulating the practice in suits in' equity, shall be abrogated when these rules, take effect. [rEFEsbnces are to sections.] SECTIONS ACCOUNT OF LIENS'— see Creditors' Bills. ADULTERY— see Divorce Suits. AFFIDAVIT. To bills, generally ' 103-104 To bill, in attachment proceedings 283 in suit for sale of infants' lands 336 for injunction 392 Use of, on motion to dissolve injunction 296 Form — see Appendix, p. 227. ALIMONY — see Divorce Suits. AMENDED BILL. In full 117-125 ANCILLARY PROCEEDINGS. See Injunctions; Receivers. Attachment in equity 281-283 Appointment of receivers 372 ■ANSWER. In full 190-210 Nature of 190-191 As evidence for respondent 192-205 in ordinary causes 192 — — in hearing on bill and answer 196, 205 to pure bill of discovery 197-200 to bill for discovery and legal relief 201 on motion to dissolve injunction 195n, 296 Waiver of oath 194-195 Exceptions to — office of 203 Objections to legal sufficiency — how taken 204-205 Allegations not answered 206 As cross-bill 132-133 Answer in Federal Courts 207-209 Amendment of 210 Form — see Appendix, pp. 213, 218. —17 258 EQUITY PLEADING AND PRACTICE. APPEALS- SECTIONS Record in a chancery suit 412 Bills of exception — unknown in equity 412 Agreed statement in lieu of record 413 Prerequisites of appeal — subject-matter 414 stage of the cause 415 Time limit 416-417 APPELLATE JURISDICTION. Necessary subject-matter 414 Effect on, of consolidating causes 235 ASSISTANCE. Writ of 270 ATTACHMENT. Ancillary to equity suits 281-283 In contempt proceedings 271 BIDDINGS— see Judicial Sales. BILLS — see Injunctions; Divorce; Creditors' Bills; Sale of Infants' Land; Partition. Classification ^10, 72-74 Original — in detail 76-115 Names of parties — use of initials 79-82 Stating the case 83 Anticipating matter in defense 85-86 Jurisdictional allegations ■ 87-88 Waiver of answer under oath 90, 194-195 Prayer for relief — general and special 92-96 Taken pro confesso — when — effect 40a-40e Not taken pro confesso, when 323 Signature of counsel 100-101 Affidavit to bill 102-103 Allegations of fact — not legal conclusions 105 Arguing the case in the bill 106 Recitation of evidence 106 Bill to enforce decree 278-279 Supplemental bill 116 Amended bill — generally 117-125 Bill in attachment proceedings 281-283 for injunction 288-301 for partition 302 -, for divorce 326 for sale of infants' lands 335 creditors' 350 to perpetuate testimony 108 for discovery 109-113 for discovery and legal relief 113-115 Form — see Appendix, p. 208. INDEX. 259 BILLS OF EXCEPTION. sections Unknown in equity practice 413 BILL OF REVIEW. In full 140-154a Purpose 140 Grounds on which filed 141 Practice 142-147 Why only after final decree 148 Final decrees generally 149-154 Time limit 153 In Federal practice 154 Combined with injunction 154a Frame of the bill 146 BILL OF REVIVOR. In general 139 BONDS — see Injunctions ; Judicial Sales; Receivers. CLERK'S OFFICE. Proceedings in — generally 38-40e Bill pro confesso 40a-40e COMMISSIONERS — see Masters in Chancery; Judicial Sales; Partition. CONFLICT OF LAWS. Coijveyance by foreign master 277 Exterritorial jurisdiction 15-19 Foreign receivers 405 CONSOLIDATION OF SUITS. In general 226-236 Effect on appellate jurisdiction 235 Hearing together — distinction 227-239 When proper — resume ,. 336 CONTEMPTS. Proceedings in 371 CONTINUANCES IN FEDERAL COURTS. Rule governing 238a CO-RESPONDENT— see Divorce Suits. COUNSEL. Signature to pleadings 100-101 Stipulations between 237-238 CREDITORS' BILLS. Generally — in full 350-372 Distinctive feature 350-351 General creditors cannot maintain — exceptions 352-353 260 EQUITY PLEADING AND PRACTICE. CREDITORS' BIL,LS — Continued. sections General creditors may assail fraudulent conveyances, by stat- ute 354 Proper plaintiffs 355 General creditors' bill . : 355, 358 Parties defendant 356 Parties — by intervention 357 Order of reference 358, 366-371 general effect 361 effect on dominion of suit 362 effect on other creditors' suits 363 effect on statute of limitations 364 necessity of 366-371 advantage 367-369 Consolidation of 226-236, 365 CROSS-BILL. In full 127-133 Purpose and characteristics 127 New matter — new parties 128 Dismissal of original bill — effect on cross-bill 129 Leave to file 130 Process and procedure 131 Answer as cross-bill 132-133 Abolished in Federal practice 133 DECREES. Interlocutory — in breast of the court 148, 157 Final— effect 149 Final — what are 150-154 Final as to one party only 152 Correction of — review — rehearing 140-161 Correction by appeal 414 Enrollment — meaning 241-243 Enforcement — methods of 269-279 Infant showing cause against 348 Preparation of 240 Recording 341 Form — recitation of pleadings 245-246 Dismissal of cause from docket — effect 248 Sale under, after six months 265 Passing legal title, by statute, in partition 316 Cannot pass legal title, in absence of statute 275-277 DEMURRER. Generally 162-174 Functions 162 To what pleadings, in equity Igs INDEX. 261 DEMURRER — Continued. sections Failure to demur — effect 163-164 For multifariousness , 69 Sustained — effect 166 Objections properly raised by 167-169 Question of jurisdiction raised by 170 Statute of limitations 171-172 Statute of parol agreements .' 173 Abolished in the Federal practice 174a DEPOSITIONS. In general 217-222 Under commission — publication 217n Notice — when dispensed with ' S17-317a Exceptions to testimony 219 Time within which, must be taken 220-221 Federal courts — testimony ore tenus — exceptions 222 Divorce suits — depositions in 323 DISMISSAL OF CAUSE. From docket— effect 248 With leave to re-instate 248 Voluntary — without prejudice 249 By agreement — "dismissed agreed" 250 DIVORCE SUITS. In full 319-328 Equity jurisdiction 319-320 Jurisdiction — essentials in Virginia 321 Venue ...- 322 Conduct of suit 323 Bill not taken for confessed 323 Heard independently of admissions 323 Service of process 323-324 Depositions — only before master 323 Summons by publication 324 Suit money 325 Alimony — temporary 325 permanent _ 328 Pendente lite powers of court 325 Bill — necessary allegations 326 Adultery, how charged — name of paramour 327 Children — custody of 328 DOCKET. Dismissal from — effect 248 ELECTION. Between pending suits 189 262 EQUITY PLEADING AND PRACTICE. ENFORCEMENT OF DECREES— see Decrees. sections ENROLLMENT. Of decrees — significance 241-243 EQUITY RULES. Federal — see Appendix II. ERRORS— 'CORRECTION OF— see Bill of Review; Appeals. EXCEPTIONS. To answer — office of 203 To testimony 219 To master's report 254 Bill of — unknown in equity 412 EXECUTION. Writ of 273 FEDERAL EQUITY RULES— see Appendix II. FORMS— see Appendix II. Memorandum, or prcecipe. Subpoena. Original bill for specific performance. Demurrer to bill. Order sustaining demurrer in part, with leave to amend. Plea of statute of limitations. Order setting down plea for argument. Order disallowing plea, and requiring answer. Answer setting up defect of title, and part payment. General replication to answer. Cross-bill for rescission of contract. Demurrer to cross-bill. Order overruling demurrer and requiring answer. Answer to cross-bill. General replication to answer. Depositions. Order dismissing cross-bill, and reference to master. Master's report. Exceptions to master's report. Order sustaining exceptions, with decree to plaintifif. Affidavit — Virginia form. usual form. Order for temporary injunction. Rule to show cause. FRAUDULENT CONVEYANCES. Suits to avoid 352-354 GUARDIAN AD LITEM. Generally 34, 59 INDEX. 263 HEARING CAUSES TOGETHER— see Consolidation. sections INFANTS— see Sale of Infants' Lands. Process against 34-35 Suits by and against 34, 58-59 Showing cause against decree, after age 348 Sale of infants' lands — in full 339-349 INITIALS. Improper in pleading 80 INJUNCTIONS. Venue 23-34 Suits for generally 388-301 Temporary — restraining orders 289 notice 390-291 afficiavit 292 jurisdiction to award , . . . 293 bond 294 service of order 295 motion to dissolve 296 effect of dissolution 2197 by appellate court judge 398 against legal proceedings 299-301 form — see Appendix. INTERVENTION. By petition ..., ., 134-137 ISSUE OUT OF CHANCERY. When proper 223 Waiver by consent 224 Effect of verdict 235 JUDICIAL SALES. In full 356-368 By whom made . , 356 Terms of sale '. 357 How made 358 Relations between court and bidder 359-359n Master's report — exceptions 360 Confirmation of sale 360 Appreciation or depreciation in value, before confirmation... 261 Resale by purchaser 262 Opening biddings — upset bids 263 Sale six months after decree 349 Title of purchaser 264-265 Collection of purchase money 266 Default of purchaser — resale 267-268 Conveyance by master 276 by foreign master 277 264 EQUITY PLEADING AND PRACTICE. JURISDICTION. SECTIONS Potential and active 9-15 In personam and in rem 16-19 Allegations of 87-88 in divorce suits 326 Compared with venue 25 Mistake in, as betvi^een law and equity court 14 By consent — waiving objection 13-13, 15, 25 Questioning, by demurrer .• , 13, 170 Nature of, acquired by order of publication 18-19 LIENS, ACCOUNT OF— see Creditors' Bills. LIMITATIONS STATUTE OF— see Statute of limitations. LUNATICS — see Infants; Sales of Lands of Persons under Dis- ability. MASTe'rS IN CHANCERY. See Orde:r of Reference; Master's Report. Conveyances by . . . .' 275-277 MASTER'S REPORT. In full 252-255 Form of-^see Appendix. MEMORANDUM— see Process. MULTIFARIOUSNESS. In full 62-69 NAMES. In pleading — initials improper 80 NAMING A PLEADING. Error in 126, 158 NEXT FRIEND. See Infants. Generally 58n OPENING THE BIDDINGS— see Judicial Sales. ORDERS— see Decrees. ORDER OF PUBLICATION. Jurisdiction acquired by 18-19 In divorce proceedings 324 In creditors' suits 252 PARAMOUR. Naming in divorce suits 327 PAROL AGREEMENTS. Statute, how pleaded 173 INDEX. 265 • PARTIES'. ' SECTIONS Parties generally 41-59 General rule 47 Proper and necessary parties 48 Proper parties plaintiff 50-51 Representation of parties 52-55 Infant and insane parties 58-59 Trustee as representing beneficiary 55 Parties in several characters , 56 « Defect of parties — objection — how made 57 PARTITION SUITS. In full 302-318a Jurisdiction — venue , .• , . 303-304 Parties .• , 305-308 Leases and alienations by one co-tenant 308 Combining with other relief 309 Trying questions of legal title 310 Partition in kind — how made 311-313 Owelty 313 Title— how made_ 314-316 Sale for partition 317-318 PENDING SUIT. Plea of 188 Election between pending suits 189 PETITION. In full 134-138 By whom filed 135 Leave to file ,.. 136 Process on 137 For rehearing 155 Form of rule to show cause against — see Appendix. PETITION TO REHEAR. In full 155-161 Contrasted with bill of review 156 Interlocutory decrees 157 No time limit 159 Frame of the petition 160 In the Federal practice 161 PLEA. In full 175-189 Purpose and uses 175 Duplicity in 176 Sufficiency — how tested — results 177-181 Issue on — how made — how tried 183 Issue found for defendant 183 266 EQUITY PLEADING AND PRACTICE. PlyEA — Continued. sections < Issue found for plaintiff 184 Supported by answer , •.. 185 Defense by — optional 186 In the Federal practice 187 Pending suit — plea of — election 188-189 Statute of parol agreements ; . . . . 17a Statute of limitations — form — see Appendix. PIvEADING. Outline of, in equity '60 Error in naming a pleading 126, 158 By initials 80 Amendments generally 117-125 Sundry forms — see Appendix. PRAYERS' OF BILL. For general and special relief 92-96 For alternative relief 94 For process 97-98 PROCESS. In full .' 27-37 The memorandum — form of 31 How served 32 Against infants and lunatics 34-35 Variance between writ and bill 37 Order of publication 18-19' Form of original — see Appendix. For enforcement of decrees — see Decrees. PRO CONFESSO. Bill taken— efifect 40a-40e When bill not taken, on default 40e, 323 PUBLICATION— see Order of Publication. RECEIVER. In full 372-411 Office— nature of ^ 372 Appointment — circumstances justifying 374-378 special 379 in vacation -. 380 notice of application 381-382 efifect of 385-388 Bond 384 retroactive effect • 384 Title of 386, 409 possessory 403, 409 by assignment— by statute 405, 409 INDEX. 267 RECEIVER — Continued. SECTIONS Res in custodia legis 387-388 Illustrations of receivership 389 Powers and duties 390 Implied powers 391-392 Claims against — intervention 394 Suits against 393-399 under statutory license 396-399 Judgments against 395, 398-399 Descriptio peirsona 395n, 402, 409n Suits by ■. 400-404 consent of court 400 in what name ' 401 when title in receiver 402 on transactions with receiver 403 foreign receiver 405, 407-408 Conflicting receivership 404 Conflict of laws — foreign receivers 405-408 Foreign receivers — jurisdiction over exterritorial res 405 suits by . 405-408 Assignment to receiver — order directing 405, 407n, 409 Statutory receivers 409 Ancillary receivers 410 Certificates — receivers' 411 RECORD IN A CHANCERY SUIT. What constitutes 413 Agreed statement in lieu of record 413 REHEARING — see Petition to Rehear. RELIEF. Prayers for — general and special, 92-96 alternative 94 REPLICATION. In full 211-216 Special, obsolete 119, 212 General 212-214 traverse only — new matter 212, 212ri' functions of 213-214 practically negligible in Virginia 215 Abolished in Federal practice 316 REVIEW— see Bill of Review. REVIVOR— see Bill of Revivor. SALE O'F lands of PERSONS UNDER DISABILITY. In full 329-349 Equitable jurisdiction 339 268 EQUITY PI^EADING AND PRACTICE. SALE OF LANDS' OF PERSONS UNDER DISABILITY— Continued. sections Virginia statute 330-331 Purposes of sale 330 Nature of estate 331-331a Procedure— in detail 332-344 Venue 333 Proper plaintifif 334 Bill — necessary allegations 335 verification 336 Parties defendant 337 Infants as heirs of each other 338 Guardian ad litem 339 Answers 340 Depositions 341 Decree 342 Sale 343 Proceeds — disposition of 344 Mortgage — inadequate protection of mortgagee 344(n) Interpretation of statute 345-346 Trust estates of infants — original equitable jurisdiction over. 346 Title of bona fide purchaser 347-349 Infant showing cause against decree 348 Sale six months after decree 349 SEQUESTRATION. Writ of 272 SPECIFIC PERFORMANCE. Suit for — complete forms — see Appendix I. STATUTE OF LIMITATIONS. Setting up by demurrer 171-172 Form of plea — see Appendix. STATUTE OF PAROL AGREEMENTS. Defense by demurrer — by plea 173 STIPULATIONS. In general 237-238 SUBPCENA— see Process. SUMMONS— see Process. SUPPLEMENTAL BILL. Generally 116 TESTIMONY — see Depositions; Issue out of Chancery. Ore tenus in federal courts 222 TITLE. Legal — decree as passing 275-277 INDEX. 269 TRUSTEE. SECTIONS As representative of beneficiary 55 UPSET BIDS— see Judicial Sales. VACATION PROCEEDINGS. In Federal courts 336b In Virginia courts 336c VARIANCE. Between writ and bill 37 VENUE OF SUITS. In full 80-36 Injunction suits 33-34 Mistake in venue 35 Contrasted with jurisdiction 35 Divorce proceedings — see Divorce Suits. WRIT — see Process. Writ of assistance 370 attachment 271 sequestration 373 execution 273 ^ / '^l % '^u Wm I iiilii i Biii ■ i»t*0 %*i tii\ti.nt^rli^f