iiaraljaU lEquttg QlnUwttOtt (Sift nf E. a. iiatHljall, Cffi. 1. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 085 50 397 The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501397 HISTORY OF A SUIT IN EQUITY, AS PROSECUTED AND DEFENDED VIRGINIA STATE COURTS AND IN THE UNITED STATES CIRCUIT COURTS, ALEXANDER H. SANDS. SECOND EDITION. J.»W. RANDOLPH & ENGLISH, Publishers, -•; RICHMOND, VIRGINIA, 1882. -'/., (g6^7y/ Copyrighted, 1882. J. W. Randolph & English. ^,. J^if^T^^TONES J- W. RANDOLPH & ENGLISH. ^^rIchS™' RICHMOND, VA. TO : JOHN K COOKE, ESQ., The following work is respectfully inscribed as an humble yet sincere tribute to his eminent talents and profound learning as a jurist, and his noble qualities as a man. AfHl, 1854. PREFACE TO SECOND EDITION. In this edition of the Suit in Equity, I have aimed to engraft upon the matter contained in the former whatever there was of value, affecting equity practice, in the United States Supreme Court Reports and in the Reports of the Supreme Court of Ap- peals of Virginia, published since the first edition. The arrangement of the work, as originally published, has been preserved, with this exception, that much of the matter found in the Appendix of the first edition has been placed in the body of the present. The first part of the treatise, embracing the first book, traces the history of a suit in equity from its beginning until the entry of the final decree and its execution. The discussion of Inter- locutory matters, Issues out of Chancery, Proceedings before Commissioners, Injunctions, and Bills other than original bills will be found in the second book. In the Appendix, I have placed the Rules of Equity Practice in the United States Circuit Courts, and have treated of the Doctrine of Parties in those courts and of other matters deemed important. The chapters on Evidence' in Equity, pp. 399-501, and on Demurrers, Pleas and Answers, pp. 161-382, have been much enlarged. There seemed to be need for this. It did not enter into my plan, to attempt a complete discussion of Parties to Suits in Equity in the Virginia State Courts. On that subject, there are many pages, 189-223, for the matter of ^In this chapter, I have followed Prof. Minor's Summary of matters of- which the courts take judicial notice, pp. 407, 408. Prof, M.'s accuracy is well known and I have adopted his work in this particular without fear of mistake. VI PREFACE. which I am largely indebted to the 2nd volume of Mr. Robin- son's Practice, printed in 1835. I have made such additions from the decisions in the Virginia Supreme CoUrt Reports pub- lished since Mr. Robinson's work, as were deemed necessary, pp. 189-223, 749-752. I must not omit to refer the reader to the admirable chapter of Mr. Barton on this topic. The discussion of the Doctrine of Parties in the United States Circuits Courts, pp. 727-743, is much more full, and this because there was no Virginia treatise devoted to that subject. It may not be amiss just here to recommend to the younger members of the profession a careful study of the Rules of Prac- tice adopted by the Supreme Court of the United States for the use of the Circuit Courts, pp. 713-726. They were doubtless prepared by able and skilful lawyers, and there are but few rules printed among them which do not disclose to the reader some important matter affecting equity practice, the rule either giving emphasis to a principle already inaugurated in the courts or modifying or repealing it. For the younger members of the profession especially, I have prepared the matter found on pages 548-571. There they will see a friendly suit for the Sale of Infants' lands traced from the filing of the bill to the final decree, with forms of every step in the proceeding. Throughout the work, the Code of i860 is cited as the Code, or the Code of Virginia. The Code of 1873 is so cited. Per- haps the list of amendments to the Code of 1873, found on pages 745-749, may lighten the labors of many. It has been prepared with no little care and toil, and is believed to be accurate. ALEXANDER H. SANDS. Richmond, May 8th, 1882. CONTENTS. BOOK I. FAOE. Chap. I. — Of commencement of suit in the Virginia State Courts, and of the rules and proceedings anterior to filing of bill or infor- mation I Chap. II. — Of the several kinds of bills ; of the matter and form of bills and of informations 7 Chap. III. — Forms of bills in suits for dower, for partition, and for lease or sale of lands of persons under disability in the Virginia State Courts 38 Chap. IV. — Forms of bills of Discovery and bills of Injunction to Judg- ments at law 79 Chap. V. — Forms of other bills in Virginia State Courts and in the United States Circuit Courts 96 Chap. VI. — Of the filing of the bill or information and of subsequent proceedings at Rules in the Virginia State Courts no Chap. VII. — Of the filing of the bill or information and of subsequent proceedings at Rules in the clerk's office, or at chambers in the United States Circuit Courts 138 Chap. VIII. — Of defences to Suits in Equity, Demurrers, Pleas, Answers and Disclaimers 161 Chap. IX. — Of the filing of demurrers, pleas, answers and disclaimers, and of the course of the plaintiff when such defences are made ,,.,, 382 Chap. X. — Of evidence in courts of equity 399 Chap. XL— Of decrees .' 501 Chap. XII. — Of execution of decree 602 BOOK II. PASS. Chap. I. — Issues out of Chancery 6ir Chap. II. — Proceedings before Masters or Commissioners 624 Chap. III. — Of Injunctions 637 Chap. IV. — Of amended bills, supplemental bills and bills of revivor..... 651 Chap. V. — Bills of interpleader, bills in the nature of a bill of inter- pleader, bills to perpetuate testimony, bill to examine wit- nesses de bene esse, bills of discovery 668 Chap. VI.— Cross bills 674 Chap. VII. — Of motions and petitions 680 Chap. VIII.— Bills of Review 692 Till CONTENTS. APPENDIX. PAGE.- I. — Rules of Practice for U. S. Circuit Courts 7I3 II.— Parties in U. S. Circuit Courts 7^7 III.— Forms of Record in Va. State Courts 743 IV. — Amendments to Code of 1873, made in subsequent Session Acts, affecting Equity Practice 745 V. — Additional cases on Parties to suits in Virginia State Courts 749 VI. — ^^Additional cases on Dower 753 VII. — Additional cases on Partition 756 VIII.— Note on Bills of Review 75S IX. — Note on Interlocutory and Final Decrees 759 X. — Doctrine of Representation 760 ERRATA. P. 25, n., I2th line, J Mun. omitted. P. 45, n., 5th line, should be " Childers v. Smith." P. 51, 2ist line, should be " 1865-6." Pp. 5S. S6. "•> corrected, pp. 754, 755. P. 70, 24th \\s\s, petition should \>& partition. P. 85, nth line, returnable should be colorable, P. 115, 26th line, names should h% parties. P. 115, sec. 78, amended. See p. 748, n. P. 139, sec. 94, amended. See p. 715. P. 140, sec. 99, amended. See p. 715. P. 141, sec. 100, amended. See p. 716. P. 201, 32nd line, vendee should he.vendor, P. 207, after connection, 2nd line from bottom, add the reference, " Williams vs. Lord &» Robinson, 5th Va. L.,J. 243." P. 212, 36th line, bill should be defd. P. 233, last line, 4 Com. should be 4 Cowen. P. 247, sec. 176; see in connection p. 301. P. 248, 20th line, centra proferentem should be contra proferentem. P. 297, at appear, 25th line, refer to p. 261, sec. 205. P. 401, n. 26, add the reference " Jones &" als. v. Abraham &• als., 5 Va. L. J., p. 444." P. 416, 4th line from bottom, Lilienfield shorHi be Lilienfeld. P. 430, 6th line from bottom, 328 should be 323. P. 435, I2th line of note, strike out not, in reference to Borst v. Nolle, P. 528, last line, Randolph should be Kinney, P. 534^ 2ist line, Millers's should be Mills's, P. 556, 8th line of note, after " 598" add the reference ; " but see Thompson &> als. V. Brooke &• als., cited post, 7S3n." F. 595, last line, after " behalf" add clause requiring security for costs already incurred. See p. 456. P. 643, as i6th line, " See Adams v. Hubbard, 25 Grat. 136." P. 660, 20th line, Houston should be Shriver, P. 687, sec. 616, corrected on p. 751, lines 23-25. P. 696, Sth line. Hill should be Hilb, P. 696, note 4, see pp. 758, 759. PART I. SUIT IN EQUITY. BOOK I. OE[A.I>TElR I. Of Commencement of Suit in Virginia State Courts: and of the Mules and Proceedings in the ClerKs Office in these- Courts anterior to filing of Bill or Information. 1. In England, it is the practice always to insti- tute suits in equity by first filing the bill or infor- mation : a bill, when the claim preferred is on behalf of a subject ; an information, when exhibited on behalf of the crown. Here, the practice is sdmewhat diflferent. Suits in equity are usually begun in the Virginia State courts, by placing with the clerk of the court, in which the suit is instituted, a memoran- dum setting forth the names of the parties com- plainant and defendant, and directing a summons^ to issue, returnable within ninety days after its date, to some rule day, or to the first day of next term of the court. This memorandum, in an ordinary case, is as follows : 1 Formerly the writ used was a subpcena. The Code of Virginia has sub- stituted in place of the subpoena the writ of summons. — Chap. 170, see. 5. 2 HOW SUITS INSTITUTED. To the Clerk of the Court for the City (or Comity) of : A. B. and CD., - - - Plaintiffs, against R. H. and J. W., - - - Defendants. Issue summons in chancery to rules, (o/*, to the first day of the next term of the court,) G-. M., p. q.^ 2. Upon the filing of this memorandum, the clerk 2 Other forms of memora/nda are as follows : Sviit hy an Infant or Married Woman. To the clerk, &c.: A. B., an infant under the age of twenty one years, by John R., his next friend, [or, Julia B., the wife of Eobert B., who sues by John E., her next friend,] - - Plt'fF, against James L., .... Deft. Issue summons, &c., (as before.) G. M., p. q. Suit hy an Administrator or Executor. To the clerk, &c. -. A. B., administrator of the goods and chattels of Charles C, [or, A. B., exe- cutor of the last will and testament of Charles C.,] - Plt'ff, against • James L., - - - Deft. Issue summons, &c., (as before.) G. M., p. q. Memorandum in Creditor's Suit. To the clerk, &c. : A. B., who sues on behalf of himself and such other of the creditors of James B., deceased, as shall come in and contribute to the costs of this suit, - . Plt'ff, against James Q., administrator of the goods and chattels of James R., deceased, Deft. Issue summons, &o., (as before.) G. M., p. q. SERVICE OF SUMMONS. 3 issues a summons in conformity to its directions. This summons is as follows :* The Commonwealth of Virginia, To the Sheriff of county, greeting: You are hereby commanded to summon R. H. and J. W. to appear at the clerk's oflBce of our circuit court of the city {or county) of , at the rules to he holden for the said court, on the first Monday, in next, to answer a hill in chancery, exhibited against them in the said court by A. B. and C. D. And have then there this writ. Witness, J. E., clerk of our said court, at , the day of , 18 — , and in the year of the Commonwealth. J. E., Clerk. 3. The summons may be executed on or before the return day by delivering copies to each of the defen- dants.* It may be served by an officer, or by another person. When served by an officer, his return thereon that "the within summons has been executed by de- livering a copy of the same to each of the parties 3 In England, if a defendant be a peer of the realm, or entitled to the pri- vilege of peerage, he has a right, before a subpoena is issued against him, to be informed by letter from the Lord Chancellor of the bill having been filed; this letter is called a letter missive, and must be accompanied by a copy of the bill. . Here there is no difference in the character of the process, whatever the office and position the defendant holds. * The service of the summons against husband and wife on husband alone, is ordinarily a good service, the husband being bound to answer for both. Ferguson v. Smith, 2 John. Ch. Eep. 139; but where the plaintiff is seeking satisfaction out of the separate estate of wife, there should be separate service upon her. Being- considered in such case & feme soleioi other purposes, she is so for this purpose also. Jones v. liarris, 9 Ves. 497. 4 SERVICE OF SUMMONS. defendant" will suffice;' when served by another per- son, an affidavit of the service is required.* 4. If a defendant be not found at his usual place of abode, the summons may be executed by deliver- ing a copy, and giving information of its purport to his wife, or to any white person found there, who is a member of his family, and above the age of sixteen years ; or, if neither he nor his wife, nor any such white person be found there, the summons may be served by leaving a copy of the summons posted at the front door of his abode.'' 5. The mode of service of summons upon a cor- poration is as follows : " It shall be sufficient to serve any process against, or notice to a corporation, on its mayor, rector, pre- sident, or other chief officer, or in his absence from the county or corporation in which he resides, or in which is the principal office of the corporation, against or to which the process or notice is, if it be a city or town, on the president of the coun- cil or board of trustees, or in his absence, on the recorder, or any alderman or trustee ; and if it be not a city or town, on the cashier or treasurer; and if there be none such, or he be absent, on a member of the board of directors, trustees or visitors. If the case be against a bank of circulation, and be in a county or corporation wherein the bank has a branch, service on the president or cashier of such branch bank shall be sufficient ; and if the case be against some other corporation, whether incorporated by the laws of this State or any other State or country transacting business in this State, or any agent 6 See Code of Virginia, chap. 170, see. 2; chap. 49, sec. 27. « Ibid., chap. 170, sec. 6, and chap. 167, sec. 1. 'Ibid., chap. 167, seel. THE RULES. 5 thereof, or any person declared by the laws of this State to be an agent of such corporation ; and if there be no such agent in the county or corporation, publication of a copy of the process or notice, as an order is published under the eleventh section of this chapter, shall be sufficient. Service on any person under this section shall be in the county or corpora- tion in which he resides; and the return shall show this, and state on whom and when the service was, otherwise the service shall not be valid, "» 6. In the clerk's office of every circuit, county andv corporation court, the rules are held on the first Mon- day in every month, except when a term of a circuit court, or a term of a county or corporation court, designated for the trial of civil cases in which juries are required, happens to commence on the first Mon- day in a month, or either of the two following days, or on the preceding Tuesday, Wednesday, Thursday, Friday or Saturday, in either of which events the rules which otherwise would have been held for said month on the first Monday are held on the last Mon- day in the preceding month ; and when- in any county or corporation the said courts commence on the Mon- day before the first Tuesday of any month, the rules are held on the Monday before the commencement of said courts. The rules may continue three days ; but when in any case such continuance interferes with the term of the court for which the rules are held, they do not continue beyond the day preceding the commencement of the term of such court.® At the rules, all steps axe taken necessary to mature the suit 8 Code. chap. 170, sec. 7; Sess. Acts, 1872-'3, p. 220. 9 Sess. Acta, 1871-2, pp. 10, 11. 6 DISMISSION AT RULES. for the hearing of the court, and it not unfrequently happens that an end is put to a suit in the clerk's office before it has come under the eye of the court. 7. Thus, the plaintiff may dismiss his suit at the rules : or by his neglect he may. incur a dismission, or the suit may abate at rules by operation of law : or the defendant may confess a decree in the clerk's office for so much principal and interest as the plain- tiff may be willing to accept a decree for.'° 8. A defendant may appear at the rules, at which the process against him is returnable, or if it be returnable in term, at the first rule day after the return day, and if the bill be not then filed, may give a rule for the plaintiff to file the same. If the plain- tiff fail to file his bill at the succeeding rule day, after a rule has been given him by a party defendant to file it, he will be non-suited." 9. If the plaintiff suffer three months to elapse after the summons is returned executed as to any one or more of the defendants, without filing his bill, the clerk will enter his suit dismissed, although none of the defendants may have appeared.'^ 10. When a summons to answer a bill is against a defendant, whom the officer (receiving it) knows does not reside in his county or corporation, the officer, unless he. find him therein before the return day, should return him a non-resident : and if the court has jurisdiction simply on the ground of such defen- dant's residence in the county or corporation, the suit will abate as to that defendant.^* "Code of Va , chap. 171, sec. 41. " Ibid., chap. 171, sec. 5. " Ibid., chap. 171, sec. 6. " Ibid , chap. 171, sec. 7. OHEj^PTER II. Of the several kinds of Bills; of the matter and form of Bills, and of Informations. SEVERAL KINDS OF BILLS. 11. The several kinds of bills have been usually- considered as capable of being arranged under three general heads. First. Original bills, which relate to some matter not before litigated in the court by the same persons standing in the same interests. Second. Bills not original, which are either an addition to, or a continuance of, an original bill, or both. Third. Bills, which though occasioned by, or seeking the benefit of a former bill, or of a decision made upon it, or attempting to obtain a reversal of a decision, are not considered as a continuance of the former bill, but in the nature of original bills. And though this arrangement is not perhaps the most perfect, yet, as it is nearly just, and has been very generally adopted in argument, and in the books of reports and of practice, it will be convenient to treat of the dif- ferent kinds of bills with reference to it. 12. Mrst. A bill may pray relief against an injury suffered, or only seek the assistance of the court, to enable the plaintiff to defend himself against a pos- sible future injury, or to support or defend a suit in a court of ordinary jurisdiction. Original bills 8 SEVBEAL KINDS OF BILLS. have, therefore, been divided into bills praying relief, and bills not praying relief. An original bill pray- ing relief may be, 1. A bill praying the decree or order of the court touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. 2. A bill of interpleader, where the per- son exhibiting the bill claims no right in opposition to the rights claimed by the person against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons, for the safety of the person exhibiting the bill. 3. A bill praying the writ of certiorari' to remove a cause from an inferior court of equity. An original bill not praying relief may be, 1. A bill to perpetuate the testimony of witnesses. 2. A bill for discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, wri- tings, or other things in his custody or power. 13. Second. A suit imperfect in its frame, or be- come so by accident before its end has been obtained, may, in many cases, be rendered perfect by a new bill, which is not considered as an original bill, but merely as an addition to, or a continuance of, the former bill, or both. A bill of this kind may be, 1. A supplemental bill, which is merely an addition to the original bill. 2. A bill of revivor, which is a continuance of the original bill, when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by mar- 1 This bill is rarely if ever nsed in America, and is not of very frequent occurrence in England. SEVERAL KINDS OF BILLS. 9 riage incapacited herself from suing alone." 3. A bill both of revivor and supplement, which continues a suit upon an abatement, and supplies defects arisen from some event subsequent to the institution of the suit. 14. Third. Bills for the purposes of cross litigation of matters already depending before the court, of con- troverting, suspending, avoiding, or carrying into exe- cution a judgment of the court, or of obtaining the benefit of a suit, which the plaintiff is not entitled to add to, or continue, for the purpose of supplying any defects in it, have been generally considered under the head of bills in the nature of original bills, though occasioned by, or seeking the benefit of, former bills ; and may be, 1. A cross bill exhibited by the defen- dant in a former bill against the plaintiff in the same bill, touching some matter in litigation in the first bill. 2. A bill of review to examine and reverse a decree made upon a former bill. 3. A bill in the nature of a bill of review, brought by the person not bound by the former decree. 4. A bill to impeach a decree upon the ground of fraud. 5. A bill to suspend the operation of a decree on special circum- stances, or to avoid it on the ground of matter arisen subsequent to it. 6. A bill to carry a decree made in a former suit into execution. 7. A bill in the na- ture of a bill of revivor, to obtain the benefit of a ' Bills of revivor simply are very rare in Virginia. Suits are revived here by the writ of scire facias, when the party who dies, or, if a female who mar- ries is a defendant ; when the party who dies, or female marrying is a plain- tiff, the person or persons for whom a scire facias might be sued out may, with^ out notice or scire facias, move that the suit proceed in his or their name. — See Code of Virginia, chap. 173, sec. 4. 2 10 MATTEE OF BILL. suit after abatement in certain cases which do n( admit of a continuanee of the original bill. 8. . bill in the nature of a supplemental bill, to obtain tl benefit of a suit, either after abatement in other cas( which do not admit of a continuance of the origini bill, or after the suit is become defective withoi abatement in cases which do not admit of a suppL tuental bill to supply that defect.s 1HA.TTER OP BILL. 15. Every bill should state the right, title or clai^ of the plaintiff with accuracy and clearness, an should in like manner state the injury or grievani of which he complains, and. the relief which he asl of the court.* 16. Every fact essential to the plaintiff's title i maintain the bill and obtain the relief must be stat( in the bill, otherwise the defect will be fatal ; no fac are properly in issue unless charged in the bill.= is certainly true, that the most liberal spirit whi( always inclines courts of equity to get over form : favor of substance, h^s often enabled them to g over objections upon the ground of variance betwe( the case stated and the case proved. Carr, J. Zane's devisees v. Zane, 6 Mun. 416." Yet while, ; Roane J. remarked in Mayo v. Murchie, 3 Mu 384, " a rigid and technical construction of bills exploded," the good sense of pleaiding and tl language of the books both require that every m ' The foregoing part of this chapter has, with some modifications, been tal from the text of Lord Eedesdale. * Story's Eq. Plea. 284. ^ibid., 295; 4 Munf. 273; 5 Leigh 141 ^ See also Taylor, adm'or of Holloway v. Bruce, Gilm. 75. MATTER OF BILL. 11 terial allegation should be put in issue by the pleadings, so that the parties may be duly apprized of the essential enquiry, and may be enabled to collect testimony in order to meet it. Kent, C. J. in James v. McKernon, 6 John. R. 564 ; Woodcock v, Bennet, 1 Cow. 734 ; Smith v. Smith, &c., 4 John. Ch. E,. 281. It will not therefore be allowed, even in equity, to recover upon a case proved, essentially differing from that alleged in the bill. Green, J. in Anthony v. Leftwich, 3 Ran. 263. Although the plaintiff should make out in evidence a good case, which under other circumstances would secure the interposition of the court, yet if it be not the case made by the bill, it will not do. Carr, Chancellor, in Jackson^s assignee v. Outright, &c., 5 Mun. 314. See Brown v. ToelVs admW, 5 Ran. 543 ; _ Thompson v. Jackson, 3 Ran. 504 ; Parker v. Carter & als., 4 Mun. 273 ; Hunter's admWs, &c. v. Jett, 4 Ran. 104 ; Gibson V. Randolph, 2 Mun. 310 ; Sheppard's ex' or v. Starke, 3 Mun. 29. 17. The bill must show sufficient matters of fact per se to maintain the case, and if it be defective in this the bill will be dismissed.' This rule has been carried to the extent, that if several persons join in filing a bill, and it appears that one of them has no interest, the bill will be open to demurrer, though it appear that all the other plaintiffs have an interest in the matter, and a right to institute a suit concern- ing it.« See Harrison v. Hogg, 2 Ves., Jr., 323 ; Davoue 'Mitf. Plea. 125. 8 1 Pr. Wms. 595; 1 Dan. Ch. Pr. 414, [322]. Now by statute ia England, 15 and 16 Vict., chap. 86, seo. 49, this error may be rectified at the hearing. Tliere should be a similar statute in Virginia. 12 MATTER OF BILL. V. Farming^ 4 John. Ch. R. 199 ; Johnson v, Johnson, 6 John. Ch. R. 163. 18. In all cases the bill must show that the parties defendant are in some way liable to the plaintiff's 'demand,* or that they have some interest in the subject of the suit ;" and it must further show that there is such a privity between the parties defendant and the plaintiff as entitles him to sue them." 19. Care should be taken not to attempt to em- brace in the same bill too many objects. It is a rule of equity that two or more distinct subjects cannot be combined in one suit. An offence against this rule is termed multifariousness, and will render a bill liable to demurrer ;'^ but it should be observed 'Mitf. Plea., 132. The extent of relief may depend materially upon the character in which the defendant is charged. Shearman v. Christian, &o., 6 Ban. 49. See Bank of Virginia v. Oraig, 6 Leigh, 399. " Ibid., 130. " Ibid., 129 ; 1 Dan. Ch. Pr., 427. inDan. Ch. Pr. 437; Becke v. Harris, &c., Hard. 337; Ward, &c. v. Duke of Northumberland, &c., 2 Anst. 469 ; Dilly v. Doig, 2 Ves., Jr., 486 ; Attor- ney Gen. V. Corp. of Camarthen, Cooper's Ch. Rep. 30 ; Whaley v. Dawson, 2 Sch. & Lef. 367 ; Saxton v. Davis, 18 Ves. 72 ; Stuart's heirs, &c. v. Coalter, 4 Band. 74. These cases establish, that when the matter demanded against one defendant is separate, distinct and unconnected with the matter demanded against another defendant, and neither is at all interested in the defence to be made by the other, the bill asserting these several demands will be considered multifarious and demurrable for that cause ; and though not demurred to, still it may be dismissed at the hearing. The objection, however, that a bill is multifarious, will have no influence upon a motion to dissolve an injunction. Shirley v. Long, &c., 6 Band. 764. In Ward v. Duhe of Northumberland, &c., 2 Anst. 469, the bill was against two executors, to recover from the two a demand against the decedent, and to recover from one of them a demand against him in his own right. To this bill the two defendants demurred se- parately, upon the ground that it blended two matters which had no other connection than that of one individual being a party in both ; and against him the demands were perfectly distinct and unconnected. The demurrers were allowed. MATTER OF BILL. 13 that this rule will only apply where a plaintiff claims several matters of different natures by the same bill; where one general right only is claimed by the bill, though the defendants have separate and distinct interests, a demurrer will not hold.^^ A court of equity will not in one suit take cognizance of distinct and separate claims of different persons though standing in the same relative situation. When, for instance, an estate has been contracted to be sold in parcels to many different persons, a bill in the names of all of them to compel a specific performance would not be sustained. See Birkley, &c. v. Presgrave, 1 East 227. In Harrison v. Eogg, 2 Ves., Jr., 323, the bill was by two plaintiffs, who complained that the copyright of three works had been violated, and, according to their own showing, they were jointly interested in only one of the works. In the other two works one plaintiff was alone interested. A demurrer to the bill was allowed. It is a favorite object of equity to prevent a multiplicity of suits; and where several persons have a common interest arising out of the same transaction, although their interest, strictly speaking, is not joint, even the In the case of Stuart's heirs v. Coalter, 4 Band. 74, there were three co- terminous tenants claiming severally different parts of the land claimed by the plaintiff. It was not alleged that the whole controversy depended upon the establishment of one particular line; and if there had been any such allegation, the possession of one of the defendants might have given him a right, which the others would not have had. Neither defendant, therefore, could be regarded as at all interested in the defence made by the others. Where the bill is against several defendants, the principle to be deduced from the cases is, that the bill must relate to matters of the same nature, and having a connection with each other, and in which all the defendants are more or less concerned. Brinkerhoff, &o., v. Brown, &o., 6 John.Ch. Eep. 157. " Mitf. Plea. 147. 14 MATTER OF BILL. defendant may sometimes, insist that they shall all be made parties in the same suit, that he may be only subjected to the trouble and expense of one liti- gation. Eagar, &c. v. Price, &c., 2 Paige 33-3 ; Ro- binson, &c. V. Smith, &c., 3 Paige 231 ; Wendell v. Wendell, &c., 3 Paige 509. It is a common case for creditors of a decedent to unite in a bill against the personal representative for an account of the assets ; or for one or more creditors to sue such representative on behalf of themselves and of all other creditors. On the same principle judgment creditors, whose liens are fixed by law, may unite in a bill to remove impediments which have been created by the fraud of their debtor, and which equally atfect all the creditors. They have one com- mon object in view, which, in fact, governs the whole case; and the subject in dispute may be said to be joint as between the plaintiffs on the one hand and the defendants on the other. 2 R. P. (old) 277. In BrinJcerhoff, &c. v. Brown, &c., 6 John. Chan. Rep. 139, there were four plaintiffs equally interested in two judgments as to part of the amount of those judgments, and the fifth plaintiff was entitled to the surplus. In respect to these judgments it was clear that the five plaintiffs were all properly united in one suit. But it appeared that the fifth plaintiff had obtained a judgment in which the other four plain- tiffs had no interest. Here it was insisted was a case of joint and several demands united in the same bill, and the question was whether it could be permitted. As the plaintiffs were seeking the aid of equity against certain fraudulent acts affecting them all, MATTER OF BILL. 15 Chancellor Kent held that they had a right to unite in one bill. The gravamen of the bill was the fraud, and as Chief Baron Macdonald said, in Ward, &c. V. Duke of Northumberland, &c., 2 Anst. 477, there was one common interest among all the plaintiffs centering in that point. See Reid, &c. v. Giffard & als., 1 Hopkins's Ch. Rep. 416; BoUnson v. Smith, &c., 3 Paige 222 ; Fellows, &c. v. Fellows, &c., 4 Cowen 682 ; Shields v. Thomas, 18 How. 263. 20. A bill should not ' contain statements or charges which are scandalous or impertinent." Scan- dal consists in the allegation of anything which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause. Any unnecessary allegation bearing cruelly upon the moral character of an individual is scanda- lous.'° Impertinences are described by Lord Chief Baron Gilbert to be ", where the records of the court are stuffed with long recitals, or with long digressions of matter of fact, which are altogether unnecessary, and totally immaterial to the matter in question.^* 21. It is not a ground of demurrer that scandalous or impertinent matter is introduced in a bill ; the parties defendant are only entitled to have the record purified by expunging such matter, and a reference to a commissioner for that purpose will be ordered. 22. Beside these requisites, it is further necessary " 1 Dan. Ch. Pr. 452. is ibid., 452. i^Gilb. For. Rom. 209. The writer has seen but one case of ecandal or im- pertinence in pleadings in Virginia. This occurred in an answer to a bill filed in the Court of Chancery at Biohmond in n suit entitled '• Mason v. Mason noTsiAip eqi ajdop'B jfjo^g eoiqenj^ UDqinnn B'^\\ eqt B93i«ra 'X^mbg; no esi^'Baix Bin °? 'sraBpy "Jnoj jf jno so3[«ni aq ! noBiaoou; puE jieoiBo[xi ^t amsap §qni ■SI911IM {vSax j£q p9:)dopB jC]|ieBa9Ainn !(on si s^i'ei 9nin o^ni noisTAip siqj, ji •gg -098 0^ 9^on 'pod 99g gi '62^ '^i '^0 ""^a X • SSI "«^\i 'JIM it -t^jj'ed 'B dn :j8S o:j pua^^ui s^u'Bpuejep qx{'] 'y8X[% uoI:^•BS -ene aqj;, "q^jg "i^qSu stq jo Jg:l':^UI'Btd aq:^. OAudap o:^ siaq^o v[%l^^. s:^Ti'Bpu8j9p jo (ja^d aq; no ^o'sjapajuoo jo aSj'Bqo aqx 'q^^ 'l\](\ 8q^ Jo ^Jred Suii^'b^s aq^ pa;j'BUTiu -ouap jC^'^^s^ 'qs'eo s^jfT^ure^d jo ^uaraai^'B^s aqx "PS •jji^nreid sai:^a'Bd ^q:^ jo sain-Bu aqx "PS '^•inoo aq:j o:^ ssajpp'B aqx "^sx ei's^-i'ed auiu jo s^jsisuoo ji!^['Bnsn jatpj SuijC'Bjd i^iq ^'buiSuo ub jo uijoj aqx "25 •auo^'B s^xq puiSuo jo uiaoj aq:} X^dtais q'jioj :jas o:^ ajaq jadojd paraaap si ■]! 'maoj ui niaq:^ Sui^qiuasao: ^p'Bau OS s^iq Jo spui5[ aaq:^o piaAas aq:} puB 'asn !}uaTiba^ aj6ni jo Suiaq jaipj SuijC'Bjd s^iq ^'BUiSiiq •mjoj !^uaiuaAuoo v aA'eq p^noqs f^iq jfjaAg; -f-g •STiia .ao Mao>i •sniq qons JO Sui^^'eaa:^ suoi'^oas aq:^ o^ aouajajaj no uaas aq {{im. asaqx -sasodjnd jtjpot'jj'Bd o^ pa^d'ep'B sniq 0^ Suiure^^jadd-B sa^ismbaj jaq:;o aj-e ajaqx 'gg 9i-pa;jasui SI ja^'Bid pjauaS siq^ uaqAV jCjBssaoau ip:jnxosq'B :^ou si jaA'Bid x^ioads v, •].'bx[% «uiaas ^i puB 'jai^ai {'BiauaS joj jaA'B.id v ^iq jfiaAa ui ^jasni o:^ x'^nsn si '\i u'-itiniap A'nm ^u'Bpuajap sai^jisd aq(^ ^'\ivd m JO apqM ut jaq^ia 'slvxd aq jaipj; aq;^ o:} pai^pua ^ou si jjii^ui'Bid aq'^ 'nyq 9q^ nt pa^isijs se 'as'BO aq:^ jo aou-B^sqns ev[% uo papunoj uos-eaj Jiuv joj ji pu-B '. iiiq aq:^ Xq ap-Bui sis as'BO aq^ o']. pa:jins jaip-i jadoid aq^ (^u'bjS o:} (jatioo aq:j jC'Bjd o:j ni^ jCjaAa ui •siiia >io waoa 9X FORM OF BILLS. 17 anticipates, by alleging certain facts which will defeat such defence ; this is termed the charging part. 6th. The statement that the plaintiif has no remedy with- out the assistance of a court of equity, which is called the averment of jurisdiction. 7th. The interroga- ting part, in which the stating gind charging parts are converted into interrogatories for the purpose of eliciting from the defendant a circumstantial^ dis- covery upon oath of the truth or falsehood of the matters stated and charged. 8th. The prayer for relief; and 9th. The prayer that process may is- sue. In Virginia State Courts. — Some of these parts are rarely if ever used in Virginia. In bills prepared by eminent counsel the charging part is omitted altogether, while the purpose of the interrogating part is served by the general prayer that each of the defendants shall be required to answer the seve- ral statements of the bill as fully and particularly as if they were repeated, and the defendants spe- cially interrogated in relation thereto.^ The aver- ment of jurisdiction is usually inserted. The charge of confederacy is not. In United States Courts. — The rules of the Supreme Court of the United States, prescribed for the circuit courts of the United States, leave it optional with the party plaintiff to insert in his bill the confederacy clause ; but expressly require that the prayer of the bill should ask the fecial relief to which the plain- tiff supposes himself entitled, besides a prayer for general relief ;2i and further provide that the inter- 2" See 1 John. Ch. Eep. 65. '^ XXI. Rule of United States S, C. 3 18 FOEM OF BILLS. rogating clause shall be inserted, the form of which is given in the 43d rule cited hereafter. 26. With these remarks upon the practice in this (30untry, we proceed to lay before the reader the seve- ral purposes which these parts of the bill were in- tended to serve in England, and their forms as used there and here. 27. (1.) Address of the Bill. — In England every bill must be addressed to the person or persons who have the actual custody of the Great Seal at the time of its being filed, unless the person holding the seals is a party, or the seals are in the King's own hand, in which cases the bill must be addressed : "To the King's most excellent Majesty in his High Court of Chancery. "^^ 28. In the United States Circuit Courts the address is as follows : "To the judges of the circuit court of the United States for the district of ."=» 29. In the Virginia State Courts, when suit is brought in a circuit (or county) court, the address is as follows : " To the Honorable J. C, Judge of the Circuit (or County) Court for the county of ." 30. (2.) Names of Plaintiffs. — In England it is not only necessary that the names of the several com- plainants in a bill should be correctly stated, but the description and place of abode of each plaintiff must be set out." 31. In the United States Circuit Courts it is requi- site to state in the bill the names, residence and citi- zenship of the several parties plaintiff and defen- 22 1 Dan. Ch. Pr. 462 (361-2) ; Mitf. PI. 7. "s xx. Rule of United States S. C. « 1 Dan. Ch. Pr. 463 (362). FORM OF BILLS. 19 dant.^ The reason of this rule is obvious. Being courts whose jurisdiction, in most cases, is restricted to matters of controversy between citizens of different States, the citizenship should appear on the face of the bill.''' See Jackson v. AsMon, 8 Pet. 148. 32. In the Virginia State Courts the names of the plaintiffs are usually inserted without a description of employment or place of abode. It is usual, how- ever, whenever the bill is preferred by a next friend, or committee, or thejike, to insert a description of the character in which the party plaintiff sues. 32 a. The bill must be in the names of those who have the cause of complaint, and not in the names of their agents. A suit cannot be maintained in the name of an attorney in fact. Jones v. Harts exoWs, 1 H. & M. 471. '33. In the English courts the manner of introdu- cing the statement with the names of the plaintiffs is as follows : " Humbly complaining, sheweth unto your Lordship, your orator A. B., of the parish of , in the county of , gentleman (or yeoman) , that," &c. In the United States Circuit Courts as follows : " A. B. of , and a citizen of the State of , brings this his bill against C. D. of , and a citizen of the State of , and E. E. of , and a citizen of the State of ; and thereupon your ora- tor complains and says that," &g.^ In the Virginia State Courts as follows • " Complaining, sheweth unto the court, your orator A. B., that," &g.!^ 25 XX. Buleof United States S, C. 26 Dodge V. Perkins, 4 Mason 435. 27 XX. Rule United States S. C. 28 It should be noted here that when a plaintiff sues on behalf of himself, and others of a class with himself, the fact is nsually stated in this part of the 20 * FOKM OS' BILLS. 34. (3.) stating Par;!.— This part of the bill con- tains the statement of the plaintiff's case. The state- ment should be clear, direct and positive as to all matters necessary to support the plaintiff's equity ; but where a matter essential to the determination of the plaintii]['s claim is charged to rest within the knowledge of a defendant, or niust of necessity be within his knowledge, and is consequently the sub- ject of a part of the discovery sought ■ by the bill, a precise allegation is not required.=« 36. The statement should not be argumentative, nor should it contain long recitals from deeds or other instruments in hcec verha,^" and as has been stated heretofore, the statement should not contain irrele- vant or impertinent or scandalous matter. bill, 1 Dan. Oh. Pr. 464. As in -the case of a " Creditor's bill,'' which runs thus : " Complaining, sheweth unto your honor, your orator A. B., who sues on behalf of himself, and of such other, the creditors of C. D., deceased, who shall come in and seek relief by and contribute to the expense of this suit, that," &c. ; or, if the suit be by a next friend, say ; " Complaining, sheweth unto the court, your orator J. M., an infant of tender years, who sues by E. B., his next friend, that," &o. ; or, " your oratrix, M. C, a married woman, the wife of D. C, who sues by E. B., her next friend," &c. There is a difference between suing as next friend of an infant and of a married woman. Any one may bring a bill as next friend of an infant without his consent; it is at the peril of him who brings it ; but no one can bring a bill in the name of a mar- ried woman as her next friend without her consent, and should such bill be brought upon her affidavit of the matter it will be dismissed. Andrews v. Cradoch, Preo. in Ch. 376 ; Randolph v. Dicherson, 5 Paige 751. The husband may be the next friend of his wife in bringing a suit against another person. Bein v. Heath, 6 How. 240. A married woman cannot maintain a bill without some person being named as next friend. Such a bilt will be demurrable. But the court will allow her in such case to amend her bill by inserting a proper and responsible person as. her next friend. Garlich v. Strong, &c., 3 Paige 440. ^ 1 Dan. Ch. Pr. (366.) 30 Sood V. Inman, 4 John. Ch. Eep. 437. There are cases in which the plaintiff's case turns upon the construction of words in written instruments ; in such oases, it surely would not be deemed improper to spread on the face of FORM OF BILLS. 21 36. Although in. bills in equity the same precision of statement that is required in pleadings at common law is not attainable, yet it is necessary that such a degree of certainty should be adopted as may give the defendant full information of the case which he is called upon to answer.^* 37. Every fact necessary to the plaintiff's case should be set forth in the stating part of the bill; otherwise, he will not be permitted to offer or require any evidence of such fact.^^ ^ general charge or statement however of the matter of fact is sufficient, though it seems that a defect here cannot be cured by a subsequent interrogatory.^ 38. In the English courts the stating part of the bill is kept distinct and separate from the confedera- ting clause and the charging part. In the United States Circuit Courts a party plaintiff is at liberty to omit altogether the confederacy clause and the charg- ing part of the bill, and in his narrative or stating part to state and avoid by counter averments — at his option — any matter or thing which he supposes will be insisted upon by the defendant by way of defence or excuse to the case made by the plaintiff for relief.^ In the Virginia State Courts it is the practice to set forth the statement of the plaintiff's case in the stating part, and to merge in it the charge of con- the bill the precise words of the inBtrument. — See Dan. Ch. Prac. (369). A plain- tiff may state any matters of evidence in his bill which may bematerial in estab- lishing the main charge, or in ascertaining the kind of relief proper to be admin- istered. Walworth, Chancellor, in Mechanics' Bank v. Levy, &c., 3 Paige 608. »i 1 Dan. Ch. Pr. (373) ; Story's Eq. PI., sec. 240 et seq. '2 Story's Eq. PI. sec. 28. See sec. 16 of this volume. " Parker v. Carter & ah., 4 Munf. 273. " XXI. Eule Supreme Court U. S. 22 rOEM OF BILLS. federacy if deemed necessary, and any matter of oflfence or defence thought expedient by the plaintiff or his coun^l. 39. The main point to be looked to is the fact, whe- ther in the statement of his case in the bill the plain- tiff has set forth every material averment necessary to support his right to the relief he asks. 40. The form of a statement in an English bill to foreclose a mortgage is as follows: " That C. D., being seized to him and his heirs in fee simple or otherwise well entitled unto, the mes- suages, lands, tenements and hereditaments, herein- after mentioned, applied to and requested your orator to advance and lend him the sum of £ upon the security or mortgage of the . said messuages, lands, hereditaments and premises ; and your orator having agreed thereto, did accordingly advance and lend the same to the said C. D. ; and thereupon for securing the repayment of the said £ , and interest for the same, an indenture {recite mortgage securities.) And your orator further sheweth, &c., that the said £ , or any part thereof, was not paid to your orator, or any other person on his account at the time limited and appointed in that behalf by the said last men- tioned indenture, or at any other time, but default was made in the payment thereof, whereby the legal estate of the said messuages, lands, hereditaments and premises became vested in your orator; and your orator farther showeth, &c., that the whole of the principal sum of £ is now due and owing to your orator, together with a large arrear of interest thereon ; and your orator being desirous of being repaid the same, has frequently and in a friendly manner applied to and requested the said C. D. to come to a fair and just account with him for what is due and owing to him for principal and interest on . FORM OF BILLS. 23 his said mortgage security, of the day of , and to pay to your orator what shall be found due to him on taking such account; and your orator well hoped," &c. 41. This form of statement may be used in bills filed in the United States Circuit Courts and in the Virginia State Courts. The statement, however, is not usually so precise in bills filed in these courts. - 42. (4.) Charge of Confederacy. This part of an English bill is as follows: " But now so it is, may it please your Lordship that the said C. D., combining and confederating with divers other persons at present unknown to your ora- tor (whose names when discovered your orator prays may be herein inserted with apt and proper mat- ter and words to charge them as parties hereto), and in order to give some color to such refusal, sometimes pretends that he never had or received any such sum or sums of money of your orator as aforesaid, and that he never made and executed any such indenture as aforesaid, and that he goes out and pretends that there are many other mortgages, charges and encum- brances affecting the said premises made and executed by him, or some person under whom he claims prior in point of time to that made by him to your orator. (Whereas," &c., then follows the charging part here- after cited.) 43. In England this confederacy clause, though formerly used, is not necessary .'° In this country, both in the United States Circuit Courts and in the Virginia State Courts, it is usually omitted. 44. (5.) Charging Part. — This part of an English bill is as follows : 35 1 Dan. Ch. Pr. 483 (375). 24 FORM OF BILLS. " Whereas your orator chargeth the truth to be that the said C, D. did receive of your orator the said sum of money, and that he did execute the indenture aforesaid. And your orator further charges, that if there are any mortgages, charges or encumbrances affecting the said mortgaged premises, or any part thereof, they are subsequent to your orator's said mortgage ; and your orator farther charges, that the said mortgaged premises are a scanty security for the repayment of what is due for principal and interest upon the said mortgage ; all which actings, doings, and pretences of the said defendant are contrary to equity and good conscience, and tend to the manifest wrong and injury of your orator in the premises." 45. The practice which formerly prevailed in Eng- land, of inserting this clause, is said to have origi- nated in order to obviate the necessity of setting forth by a special replication additional facts in avoidance of new matter introduced by the defendant's plea or answer. 46. It is not usual to insert this clause in bills drawn in this country. Whenever the plaintiff deems his bill not properly adapted to his case, he files an amended or supplemental bill adapted to the defence.^* 47. (6.) Averment of Jurisdiction. — This part of an English bill runs thus : "In tender consideration whereof, and for as much as your orator is remediless in the premises by the strict rules of common law, and cannot have adequate relief except in a court of '* See James v. McKennon, 6 John. Ch. Eep. 56i. Where the plaintiff after setting out his case in the bill stated what he understood was the pretension of the defendant, this was not such an allegation as constituted the answer re- sponsive thereto evidence and thus threw the burden of disproving it upon the plaintiff. Lea's ex'or v. Eidson, 9 Qrat. 277. FORM OF BILLS. 25 equity, where matters of this kind are properly cog- nizable and relievable." The form is the same when used here in the United States Circuit Courts and in the Virginia State Courts. 48. This clause, it is said, was originally intended for the purpose of giving the court jurisdiction. The making of it does not give the court jurisdiction when it has it not otherwise, and it has been settled that the omission of this averment will not deprive the plaintiff of relief. 49. The rules of the Supreme Court of the United States provide that it may be omitted in bills filed in the Circuit Courts of the United States. 60. In bills filed in the Virginia State Courts it is usually inserted, and immediately following, the names of the defendants are given thus : " Your orator prays that C. D., A. B. and R. M., in his own right and as executor as aforesaid of James B., de- ceased, may be made parties defendant to this bill, and required to answer, &c.^' '' This might properly be called the " Prayer for Parties."' It is important that it should be inserted in bills filed in the Virginia State Courts. If among the defendants there be any one who fills several characters, and is a proper party in each character, care must be taken to make him a party in each. Where, for example, a devisee of the equity of redemption ought to be a party, although he be made a defendant in the character of executor, and answer as such, that will not suffice. He'must be made a party, (called on to answer), as to his individual interest. Mayo v. Tomhies, 6 Mun. 520. In a bill brought by a residuary legatee against an executor, if the executor be administrator of one of the residuary legatees, he should be made a defendant as administrator of tuch legatee, as well as in his character of executor. Sheppard's ex'or v. Starke, &c., 29. And a decree cannot be made against a widow to restrain her from conveying her right of dower, if she be not made a defendant to the bill as widow, or in her own right, but merely as adminis- tratrix of the decedent and guardian of his children. Pennington v. Hanby, &.C., 4 Munf. 144. 4 26 FORM OF BILLS. 51. (7.) Interrogating Part. — The bill having shown the title of the persons complaining to relief, and that the court has jurisdiction for the purpose, prays that the parties defendant may answer all the mat- ters contained in the former part of the bill, not only according to their positive knowledge of the facts stated, but also according to their remembrance, the information they have received, and the belief they are enabled to form on the subject.® 52. Experience having proved that the substance of the matters stated and charged in a bill may fre- quently be evaded by answering according to the let- ter only, sometimes there is added to the general re- quisition, that the defendants should answer the con- tents of the bill, a repetition by way of interrog-atory, of the matters most essential to be answered; adding to the inquiry after each fact an inquiry of the seve- ral circumstances which may be attendant upon it, and the variations to which it may be subject, with a view to prevent evasion, and compel a full answer.^ This is commonly called the interrogating part of the bill ; and as it is used only to compel a full answer to the matters contained in the former part of the bill, it must be founded on those matters.^* 53. The 40th rule of the Supreme Court prescribed, that in the United States Circuit Courts a defendant should not be bound to answer any statement or charge in the bill, unless specially and particularly interrogated thereto, or any interrogatory in the bill, except such as he was specially required to answer ; 38 Mitf. Plea. 51. s' 1 Dan. Ch. Pr. 487 ; Mitf. Plea. 51. « 1 Dan. Ch. Pr. 487.- FORM OF BILLS. 27 but this rule lias been repealed/* By another rule of the same court, the . interrogatories contained in the interrogating part of the bill were required to be divided as conveniently aa may be from each other, and numbered consecutively 1, 2, 3, &c., and the in- terrogatories which each defendant was required to answer to be specified in a note at the foot of the bill in the following form : " The defendant, A. B., is required to answer the interrogatories numbered respectively 1, 2, 3, &c. ;" and by another rule of the same court, it was provided that instead of the words of the bill as used in the Higli Court of Chancery of England, preceding the interrogatory part, these shall be used : " To the end therefore that the said defen- dants may, if they can, show why your orator should not have the relief hereby prayed, and may upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter num- bered and set forth, as by the note hereunder writ- ten, they are respectively required to answer ; that is to say— 1, Whether, &c. ; 2. Whether," &c." See the 93d rule which modifies the rule just cited. 54. It has been already stated that in the Virginia State Courts the interrogatory clause is inserted, though usually with not such particularity as in Eng- lish bills. 55. The interrogatory clause in an English bill is now like that contained in section 53. It formerly ■ « See XCIII. Rule. 28 FORM OF BILLS. ran as follows : "To the end therefore that the said C. D. and his confederates when discovered may, upon their several and respective oaths, according to the best and utmost of their several and respective knowledge, remembrance, information and belief, a full, true, direct and perfect answer make to all and singular the matters aforesaid, and that as fully as if the same were here repeated, and they particularly interrogated thereto; and more especially, that the said defendant may, in manner aforesaid, answer and set forth whether; (Here insert interrogatories to probe the conscience of defendants.") 56. (8.) Prayer for Belief. — There is no doubt that a prayer for general relief will, in most cases, be sufficient to enable the plaintiff to obtain such a de- cree as his case entitles him to.^^ Injunctions ought always to be prayed for specially.^'. Under this gene- ral prayer, any relief may be granted which is. suit- able to the case, and consistent with the allegations and proofs. Cook, &c. v. Mancius, &c., 5 John. Ch. R. 99 ; Green, J., in Beverley v. Brooke, &c., 2 Leigh 441. In Beall v. Silver, 2 Ran. 401, the plaintiff was a judgment creditor, and came into equity to subject property fraudulently conveyed by his debtor, pray- ing that so much of the property might be sold as would satisfy the amount of the judgment. The pro- perty was held liable ; and then the creditor asked to be allowed interest, though no interest had been re- covered by the judgment. This claim of interest it was considered might be allowed under the prayer for general relief. ■"' The 21sx rule of Supreme Court United States requires plaintiff to pray for the special relief as well as for general relief. "Eden on Injunctions 49. FORM OF BILLS. 29 It is indispensable however when relief is granted, which is not particularly prayed for, that it should be consistent with the case made by the bill. Wilken, &c. V. Wilken, 1 John. Ch. R. 117 ; Franklin, &c. v. Osgood, &c., 14 John. Rep. 527 ; English, &c. v. Foxall, 2 Peters 595; Colton, &c. v. Boss, &c., 2 Paige 396 ; Sheppard's ex'' or v. Starke & ux. 3 Munf. 29. But though the bill should contain neither a spe- cial nor general prayer for relief, yet if the defendants answer the allegations and submit themselves to the decree of the court on the merits, the defect as to the prayer will be disregarded by an appellate court. Smith, &c. V. Smith, &c., 4 Ran. 95. 57. This part of an English bill is as follows : SPECIAL EELIEF. " And that it may be referred to one of the mas- ters of this honorable court to take an account of what is due to your orator for principal and interest on his said mortgage security from the said defen- dant, and that the said defendant may be decreed to pay to your orator what shall be found due on such account, by a short day to be appointed by this honor- able court in that behalf, together with your orator's costs ; and in default, that the said C. D., and all persons claiming under him, may be forever barred and foreclosed of, and from all right of redemption of, in, and to the said mortgaged premises, or any part thereof, and may deliver up to your orator all deeds, papers or writings in his custody or power, re- lating to or concerning the said mortgaged premises." GENERAL RELIEF. " And that your orator may have all such farther and other and general relief in the premises as the 30 FOEM OF BILLS. nature of his case may require, or to equity shall seem meet." 58. The prayer for general relief ought never to be omitted by the draftsman, because if the plaintiff should in his special prayer mistake the due relief, it may be given under the general prayer, if consistent with that which is actually prayed." 59. 9. Prayer for Process.— The following is the prayer for process in an English bill : " May it please your Lordship to grant unto your orator his Majes- ty's most gracious writ of subpcena to be directed to the said W. B., thereby commanding him at a certain day, and under a certain pain therein inserted, per- sonally to be and appear before your Lordship in this honorable court, then and there to answer the prem- ises." 60. It will be observed that in this form the pro- cess is prayed to be directed to the party defen- dant. This is the practice in the United States Cir- cuit Courts ; but in the Virginia State Courts all process is directed to officers of the court. The prayer for process of subpoena in the United States Circuit Courts should contain the names of all the defendants named in the introductory part of the bill ; and if any of them are known to be infants under age, or otherwise under guardianship, should state the fact. This is required by the 23d rule of Supreme Court. The prayer for process in United States Circuit Courts is as follows : " May it please "Adams' Equity 566. If a bill contains no prayer either for specific or general relief, it is considered as a bill of discovery only. But see Smith, &o. V. Smith, &c., 4 Band. 95, cited, sec. 56. FORM OF BILLS. 31 the honorable court to grant a writ of subpoena, di- rected to C. D., A. B. and R. M., in his own right and as executor as aforesaid of James B. deceased, and commanding them to appear and make an- swer unto this bill of complaint, and to perform and abide by such orders and decrees herein as to the court may seem required by the principles of equity and good conscience." In the Virginia State courts the prayer for process is not unfrequently omitted altogether, and when in- serted is usually drawn in terms such as these : "That proper process may be directed against the several defendants hereinbefore named ;" and is often used in the bill before the prayer for general relief thus : "that proper process may be directed against the several defendants herein-before named, and that your orator may have all such farther and other and general relief as the nature of his case may require, or to equity may seem meet." 60 a. It is frequently laid down that none are de- fendants against whom process is not prayed. Coop. Eq. PL 16 ; Brasher' s ex' or 8 v. Van Cortlandt, 2 John. Ch. K 245. This seems to be founded upon what was said in Fawkes v. Pratt, 1 P. Wms. 593.^° In Virginia, where the process issues, as matter of course upon the bill, and most frequently before the bill is *^ In Fawkes v. Pratt, the defendant pleaded that the plaintiff was a bank- rupt, and his assignees ought to be made parties. Upon this the plaintiff amended his bill and made allegations in the body thereof in relation to the assignees, but the prayer of process was only against the original defendants. The defendant put in the same plea to the amended bill, viz ; that the assignees ought to be made defendants. Lord JfaccZes/JeH said, "the plaintiff may com- plain and tell stories of whom he pleases, but they only are defendants against whom process is prayed.'' 32 FORM OF BILLS. filed, tlie prayer in the bill for process is really formal ; " and it would be strange indeed if those only should be regarded" as defendants, against whom there is an unnecessary prayer for process." 2 Rob. Pr. (old) 290. It may be admitted that every bill should clearly designate some particular persons as defen- dants, and that ordinarily the prayer for process selects from the persons named in the bill those who are made defendants. But this particular mode of designation cannot be indispensable. It must be suf- ficient for the bill to state which of the persons named in^ it are made defendants. Ibid., 290. In Elmendorf & wife V. Belancey, &c., 1 Hopkins's Ch. Rep. 555, no persons were designated as defendants either by a prayer of process against them, or by any statement that they were impleaded as defendants. The bill was adjudged bad on special demurrer assigning this cause, but the complainants had leave to amend on the usual terms. 61. Besides these several parts of bills, there are other requisites necessary to be attended to in their preparation ; some equally applicable to every bill ; others alone proper in bills designed for special pur- poses. 62. Thus to every bill the signature of counsel should be affixed;^* to a bill of injunction, beside the ** This is specially required in bills filed in United States Circuit Courts, by the 24th rule of United States Supreme Court. In the Virginia State Courts the rules of practice which each equity court adopts for its own government sometimes require the signature of counsel to bills; but the practice is very loose in those courts, and in many instances the counsel does not affix his sig- nature. In England, the rule is imperative that the signature of counsel must be subscribed to' every bill before it is filed (Mitf. PI. 48), and if it be not, the bill will be dismissed on the defendant's demurrer. 1 Dan. Ch. Pr. 409. FORM or BILLS. 33 special prayer for the restraining order of the court or judge, an affidavit of the truth of the statements made in the bill should be annexed ; and an affidavit is also required in bills of discovery and in other bills. 63. The reader will find, in subsequent chapters of this work, complete forms of bills as exhibited in the English courts, in the United States courts, and in the Virginia State courts, showing the several parts of the bill in juxta-position. 64. In Ambler & ah. v. Warwich & Co., 1 Leigh 195, the court permitted the case made out by the bill to be supplemented by the statements of one of the answers, and granted relief. The case, in this par- ticular, can hardly be sustained on authority. In Brown v. ToelVs adm^or, 5 Rand. 543, the bill was filed to injoin a judgment at law, upon the ground that the complainant was entitled to credits, which had not been allowed, and a deposition was taken to prove the contract usurious. There being no allegation of usury in the bill, the testimony was considered irrelevant, and was disregarded. • In Thompson v. Jackson, 3 Rand. 504, the bill sought to rescind a contract because of a deficiency in the quantity of land sold. Carr, J. said, that the (jontract could not be rescinded on the ground of fraud, for no fraud or misrepresentation, no suppres- sion of truth or suggestion of falsehood being charged in the bill, any evidence taken as to these points would be regarded as irrelevant. In Parker v. Carter & als., 4 Munf. 273, creditors filed a bill to subject certain slaves which their debtor 34 FORM OF BILLS. had received from his father-in-law at the time of his marriage, insisting that the slaves had become the property of the debtor before the father-in-law made a deed conveying them for the benefit of his daugh- ter and her children, it was held, that as the bill con- tained no charge, that the deed had not been duly delivered, the objection as to non-delivery could not be taken advantage of under the bill. In Hunter's adwHors v. Jeit, 4 Rand. 104, there was an arrangement between a creditor and his prin- cipal debtor that the latter should have time upon giving collateral security ; and the surety filed a bill asking information as to the details of the arrange- ment, and praying the benefit of the securities, which were the fruit of it. He did not by his bill deny his liability for the debt, but merely claimed the benefit of the collateral security, to enable him to pay it : EeU, that the surety could not insist at the trial that the facts proved in the case amounted to a discharge; the surety if he had been ignorant of the precise character of the arrangement until he saw the an- swer, if he then intended to shift his ground and go for a discharge, should have insisted on it, and put it in issue by an amended or supplemental bill. Where an executor has a claim against the estate of his testator, depending on a quantum meruit only, his proper remedy is by bill in equity against his co- executors and the legatees. Upon such a bill, what is a reasonable compensation will be determined and allowed out of the estate. Baker v. Baker, &c., 3 Munf, 222. In this case the executor failed to state his claim with reasonable certainty, by setting forth POEM OF BILLS. 35 his own. estimate of his services ; the court did not dis- miss the bill, but allowed him on motion to amend it. Parker, J. said, in James v. Bird!s adm^or, 8 Leigh 570, that the relief given by the decree of the Chan- cellor could not be granted under the prayer for general relief, and he would have reversed the decree on that ground ; it was reversed on another. The case was this : Bird, with a view to hinder and de- fraud his creditors, conveyed his slaves to James, and took his bond for $8,000, as the price of them. He filed a bill to set the transaction aside, on the ground that it was not designed as a sale, but merely to save his property from sacrifice. Finding this ground un- tenable, he filed another bill, in which he gave a new character to the transaction, but the fraudulent intent still showed itself. He prayed to rescind the con- tract, to have the slaves restored, and /or general re- lief. The Chancellor considered the sale good, and refused to set it aside, but under the prayer for gene- ral relief determined to decree relief to the com- plainant to the -payment of the balance of his pur- chase money, and subjected the slaves to the pay- ment thereof upon the supposed lien of the vendor. In the Court of Appeals the case went off on the point, that Bird having made the conveyance for the purpose of hindering and delaying, though most pro- bably not of wholly evading the payment of his just debts, was not entitled to the aid of a court of equity ; and the decree was therefore reversed. Parker, J. said, that he questioned whether the case made by the bill authorized a decree for the purchase money under the prayer for general relief. All the facts 36 INFOEMATIOJiTS, charged by the bill are inconsistent with the idea of a sale, or with a right to purchase money ; and there- fore to decree the latter, without an alternative prayer or statement of facts justifying it, seemed to him to be opposed to the current of English authori- ties, and, so far as the point had occurred, to our own. In Shepfard^s ex'or v. StarJce, &c., 3 Munf 29, the bill was filed by one residuary legatee, claiming his share of the estate. The bill contained a prayer for general relief. This did not authorize a decree for a share, to which the complainant was entitled as as- signee of another legatee, or a portion which he claimed as distributee of a third legatee. If there be no averment or statement in the bill on which to found a particular interrogatory, an excep- tion to the answer for failing to respond to such in- terrogatory cannot be sustained. Mechanic^ Bank V. Levy., 3 Page 606. Nor will the interrogatory avail at the hearing for the purpose of supplying a defect in the bill. If evidence be relied on as to a particular fact, and such evidence be objected to be- cause the fact is not charged^ the objection will not be removed by an interrogatory ,calling for information on the subject. Parker v. Carter, &c., 4 Munf. 273. INFORMATIONS. 65. Of their matter. Informations, in every re- spect, follow the nature of bills, except in their style. When they concern only the rights of the State, or of those whose rights the State takes under its particu- lar protection, they are generally exhibited in the FORM OF INFORMATIONS. 37 name of the Attorney General as the informant.*^ In the latter case always, and sometimes in the former, a relator is named, who, in reality, sustains and di- rects the suit. It may happen that this person has an interest in the matter in dispute, and bears the character of plaintiff as well as relator; in such event, the pleading is styled an " information and bill." The proceedings upon an information can only abate by the death or determination of interest of the defendant. 66. Of their form. The difference in form between an information and a bill consists merely in offering the subject-matter as the information of the officer in whose name it is exhibited, at the relation of the per- son who suggests the suit, in those cases where a relator is named, and in stating the acts of the de- fendant to be injurious to the State or to those whose rights the State thus endeavors to present. When the pleading is at the same time an information and bill, it is a compound of the forms used for each, when separately exhibited. *' In some cases other oflScers of the State and of the United States are necessary plaintiffs. CECiLFTER III. Forms of Bills in suits for dower, for partition, and for lease or sale of lands of persons under disability in the Virginia State Courts. DOWER. Form of Bill for Bower in ordinary suit by Widow. To the Honorable A. B., Judge of the court of the county of : Complaining, showeth unto the court your com- plainant, Ellen E., that your complainant is the widow of John F., who recently departed this life intestate in this county ; that the said John F. was, during the marriage between him and herself, seized of an estate of inheritance in real estate in this county, and in the counties of M. and N., which real estate is as follows, to wit* (here -briefly recite it) : that the said J. F. died seized of the said real estate, and your complainants dower therein has in no manner been lawfully barred or relinquished^ ; that the following persons are the children and heirs at law of said J. F., to wit: Jane F., Susan F., Robert F., and Thomas F., the last named of whom is an infant under the age of twenty-one years ; that your complainant is entitled to have her dower assigned in the said real estate, and she desires the same to be assigned to her. 1 Code, chapter 110, section 1. BILLS IN SUITS FOE DOWEK. 39 In tender consideration whereof, your complainant prays that the said Jane F., Susan F., Robert F., and Thomas F., may be made parties defendant to this bill ; that the said adult defendants be required to answer the same on their corporal oaths ; that a guar- dian ad litem be assigned the infant defendant, Thomas F., to defend his interests in this suit, and that the said guardian ad litem answer the said bill ; that proper process issue ; that your complainant's dower in the said real estate be assigned £lnd set out and allotted to her by the decree of your honorable court; that all proper orders may be made, and all proper inquiries be directed, and that all such other, farther and general relief may be afforded your complainant as the nature of her case may require, or to equity shall seem meet. And your complainant will ever pray, &c. C. D. p. q. Ellen F. Form of Bill for Dower hy Widow against an Alienee of her former Husband. Follow last form to star *, then say : that the said John F., your complainant has been informed and believes, conveyed the said real estate to M. 0., but in the deed of conveyance your complainant did not unite, and she avers that her dower in said real estate has in no manner been lawfully barred or relin- quished; that your complainant is now entitled to dower therein, and she has demanded of the said M. 0. her dower in the same, but the said M. 0. refuses to assign and set out her said dower, alleging that she is not entitled to any dower in the said real estate. 40 BILLS IN SUITS FOR DOWEK. Your complainant desires that her dower in the same may be assigned and allotted and set over to her in this suit. In tender consideration whereof, your complainant prays that the said M. 0. may be made a party de- fendant to this bill, and required to answer the seve- ral statements therein on his corporal oath ; that proper process issue ; that your complainant's dower in the said real estate be assigned and set out and allotted to her, &c. &c. (as in last form to conclusion.) Form of Bill for Bower hy Widow, and to set aside release made thereof for fraud and imposition. [See 3 Dan. Ch. Pr. (edit. 1865), p. 1924, for form of such bill when presented in United States Circuit Courts. It may be readily adapted to a suit in the Virginia State Courts. The material allegations in such a bill, after averring the right of dower and demand of it, and refusal to assign, are, that the defendants pretend that the complainant had by some deed or other instrument of writing released and discharged her right of dower; that the pretended release or instrument was obtained by fraud and im- position upon the complainant, stating the manner of it ; that the complainant did not join with her hus- band, J. F., in any deed of conveyance of the real estate as the defendants pretend, and that she was not barred of her right of dower in the said real estate. The bill will then contain the usual prayer for process and for assignment of dower, and that the pretended release be declared void, and for general relief.] PRACTICAL NOTES. 41 PRACTICAL NOTES TO FORMS OF BILLS FOR DOWER. See Code, ctapter 110, 1 Lomax's Digest, title v., chapter 3, 4, pages 108-134, 4 Kent's Com. 64. Parties to Suit by Widow. — In a bill by a widow for dower in land sold in the lifetime of her husband, and coming to the pre- sent owner through several intermediate conveyances, the present owner is the only necessary party defendant. Blair v. Thompson tga&., llGrat.441. Geoss Sum in lieu of Dowek.— There cannot be a decree for a specific sum, in lieu of dower, without the assent of all the par- ties. Ibid., see note, p. 55, post. Extent of Eeqoveey. — The Code, chapter 110, section 11, puts at rest the main question discussed in Braxton v. Coleman, 5 Call 433", and in Tod v. ^ayZor, 4 Leigh 498;' and also determines that the title to rents of dowable lands may be asserted after the widow's ^ Braxton y. Coleman, 5 Call 433, is differently understood by Judge Lomax and by Mr. Robinson. The latter commenta on it as distinguished from Tod V. Baylor, 4 Leigh 498 ; the former seems not to have found any difference in principle between the two cases. Judge Lomax extracts from Braxton v. Cole- man the principle, that if the estate after being sold by the husband became deteriorated by inevitable accident in the possession of the purchaser, though he afterwards greatly improved it, the widow is not to be endowed of this im- proved value, nor yet of the value at the time of the husband's alienation, but of the deteriorated value to which it was reduced by the accident. The case was this : Braxton, after marriage, sold a mill with fifty acres of land attached to it. The mill was subsequently carried away by a freshet, as was another, which was afterwards built upon the same, site. A third mill upon a more ex- tensive plan was then built by the purchaser. On suit by the widow, it was held that she was entitled to dower only in the mill site, and the fifty acres of land, not in the new mill j and no regard seems to have been had to the value of the mill standing at the time of the alienation. ' Tod V. Baylor, 4 Leigh 498, was this : The widow filed a bill against an alienee of the husband for dower in the land sold. The court held that she was elititled to rents and profits, not from the death of the husband, byt from the date of the suing out of the subpoena in the cause, and that she was dow- able of the lauds, as of the value thereof, at the time of alienation, not at the time of assignment of dower : she was not entitled to any advantage from enhi,ncemeut of the value, either by improvements made by the alienee, or from general rise in value, or from any cause whatever. 6 42 BILLS IN SUITS FOE DOWEE. death by the widow's personal representative.* The section reads thus : " Whether the proceeding of the widow be against one claiming under an alienation by the husband in his lifetime, or against his heirs or devisees, or their assigns, a recovery of dower in such real estate in kind shall be of a third of the estate as it is when the recovery is had. Against such heirs or devisees, or their assigns, the damages shall be for such time after the husband's death as they have withheld the dower, not exceeding five years before the suit is commenced. Against one claiming under such alienation by the husband, the damages shall be from the commencement of the suit against such claimant. In either case they shall be to the time of the recovery. And if, after suit brought, the widow or the tenant die before such recovery of damages, the same may be recovered by her per- sonal representative, or against his." Here it is provided that the recovery of dower shall be " of a third of the estate as it is when the recovery is had," whether of a purchaser or of the heir.^ The account directed in Tod v. Baylor was " of the, profits of the land from the suing out of the subpoena in the cause."* So also in Brax- ton V. Goleman, the widow was decreed one-third of the profits from the commencement of the suit. The 11th section of chapter 110 of the Code provides for the giving of damages against the heir, and " for such time after the husband's death, as the dower has been withheld, not exceeding five years before the suit is brought:" against a pwrchaser from the husband, damages are to be given from the commencement of the suit." The Code, chapter 110, section 10, provides : " A widow having a right of dower in any real estate may re- cover the said dower, and damages for its being withheld, by such remedy at law as would lie on behalf of a tenant for life having a right of entry,- or by a bill in equity, where the case is such that a bill would now lie for such dower." And section 12 provides : * See Lee, v. Stuart, 2 Leigh 33, and Maeauley v. Dismal Swamp Company, 2 Rob. R. 507. 5 Judge Kent had (4 Com, 64) rightly summed up the doctrine of the Ame- rican cases, as this ; that the widow takes her dcfwer according -to the value of the land at the' time of the alienation, and not according to its subsequent increased or improved value as against a purchaser ; but when this recovery is sought out of the land descended to the heir, then it shall be according to the value at the time of .the assignment. Of course the statute cited in the . text rules in the Virginia courts. "See Lomax's remark on this entry, 1 Lorn. I^g., p. 122, note*. PRACTICAL NOTES. 43 "The two preceding sections are subject to this qualification, that, on the application of one claiming under an alienation made by, the husband in his lifetime, a court of equity may grant him re- lief from such recovery, on the terms of his paying to the widow, during her life, lawful interest from the commencement of her suit, on one-third of the value, at the husband's death, of the real estate so aliened, deducting the value of such permanent improvements then existing as may have been made (after the alienation) by the alienee or his assigns." The rule laid down by this section mitigates the harshness of the enactment contained in the 11th section before cited,' so far as the purchaser is concerned. The right of the widow to claim as against the heir dower in one-third of the land in its improved condition, though the improvement be by his industry or at his charge, re- mains as it was before the statute. The widow was endowed ac- cording to the value at the time of the assignment as against the heir, whether the estate had deteriorated* or had improved, 1 Lomax's Digest, 123, 124 ; and so the rule is now. See note, p. 41, ante. The Code, chapter 110, sections 13 and 14, provides : 13. No widow shall be precluded from her dower by reason of the real estate whereof she claims dower having been recovered from her husband, by a judgment rendered by default or collusion, if she would have been entitled to dower therein, had there been no such judgment. Nor shall any heir who was andei the age of twenty- one years at the time dower was assigned to the widow, out of the lands of his ancestor, by his guardian, or by judgment by default or collusion ^against such guardian, be precluded from recovering the seizin of his ancestor from such widow, unless she show herself entitled to such dower. 14. Crops growing on the dower land of a widow at the time of her death may be bequeathed by her, and shall go to her personal repre- sentative in Uke manner as crops growing on any other land held for life. Tod V. Bayhr, 4 Leigh 498, was distinguished from Macaulay's ex or V. Dismal Swamp Land Co., 2 Eob. 530, in this, that in Tod V. Baylor the husband had conveyed in his lifetime the land to a purchaser, in Macaulay v. Dismal Swamp Land Co., the husband, though he had mortgaged the property, died seized of the land : and while in Tod v. Baylor the court had given profits «to the ' Page 41, ante. 8 If the heir haa voluntarily impaired the value', Lomax states that the widow should be recompensed in damages against him. 1 Lorn. Dig. 124, citing 2 Bac. Abr. 369 ; Park on Dower, 257, '8. 44 BILLS IN SUITS FOR DOWER. widow only from tte issuing of the subpcena, in the latter case the court decided to give a decree to the widow for her share of the profits from the date of the husband's death. Of what Endowed. — The Code, chapter 110, sections 1, 2 and 3, provides : 1. A widow shall be endowed of one-third of all the real estate whereof her husband or afiy other to - his use Was, at any time during the coverture, seized of an estate of inheritance, unless her right to such dower shall have been lawfully barred or relin- quished. 2. When a husband, or any other to his use, shall have been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same, if the husband or such other had recovered possession thereof, she shall be entitled to such dower although there shall have been no such recovery of posses- sion.' 3. Where land is iona fide sold in the lifetime of the husband, to satisfy a lien or incumbrance thereon, created by deed in which the wife has united, or created before the marriage, or otherwise paramount to the wife, she shall have no right to be endowed in . the said land. .But if a surplus of the proceeds of sale remain after satisfying the said lien or incumbrance, she shall be entitled to dower in said surplus, and a court of equity having jurisdiction of the case may make such order ' as may seem to it proper to secure her right.'" When the husband is entitled to a reversion expectant on a term of years or other chattel interest, he is seized of the freehold, and his widow is dowable. 1 Inst. 32a; 1 Lom. Dig. 100-1; 4 Kent's Com. 38. But a woman is not entitled to dower out of an estate in remainder or reversion, expectant on an estate of freehold, because the husband has no seizin. Ibid.; Blow v. Maynard, 2 Leigh 38 ; Caches ex or d ah. v. Philips, 12 Leigh 248. On a joint tenancy at common law dower did not attach. Coke on Lit. Bk. 1, chapter 5, section 45 ; but by the Code, chapter 116, section 18, " When any joint tenant shall die, whether the estate be real or personal, or whether partition could have been compelled or not, his part shall descend to his heirs, or pass by devise, or go to his personal representative, subject to debts, curtesy, c^ower or distribu- tion, as if he had been a tenant in common. And if hereafter an 'This section changes the rule laid down in 1 Lom. Dig., pi. 24, page (79) 94. 1" This section was reported by the revisors, without the last clause, so as to ■conform the law to the opinion of the majority of the judges in Wilson v. Davisson, 2 Rob. 398. The legislature added the last clause, which conforms to the opinion of the judge who dissented in that case. PRACTICAL NOTES. 45 estate of inheritance be conveyed or devised to a husband and hia wife, one moiety of such estate shall, on the death of either, descend to his or her heirs, subject to debts, curtesy or dower, as the case may be."" A woman is entitled to dower in an estate held in coparcenary, or in common, by her husband in fee. 1 Lom. Dig. 99. Gilliam v. Moore, 4 Leigh 30, presented the question mooted in Moore v. Gilliam, 5 Munf. 346, whether, if a deed be made to the purchaser of land in fee simple, and, by deed of same date, the pur- chaser, without being joined by his wife, conveys the same land to trustees upon trust to secure the purchase money to the vendor, the widow of the purchaser is entitled to claim her dower, subject to the trust or paramount to it. The Court of Appeals held that she took her dower in the estate, subject to the trust. The authorities, say the court, leave no doubt on the point." The conveyance of the land, and the re-conveyance in trust, being cotemporary and in fact and in law parts of one and the same transaction, Gilliam's seizin was merely transitory as well as instantaneous, and his widow was not entitled to dower against the trust. By the third section of chapter 110 of the Code (the present statute), the widow would be entitled to dower in the surplus remaining after satisfying the deed of trust. Blair v. Thompson d als., 11 Grat. 441, differed from Moore v. Gilliam, 4 Leigh 30. In Blair v. Thompson (& als., Thompson bought land, and gave bonds, with Snapp as security, for the purchase money ; and about eighteen months after the purchase, he executed a deed of trust upon the land and on personal property as a farther security : it was held that the widow of Thompson was entitled to dower in the land paramount to the deed of trust.'^ But where two persons '^See Thornton v. Thornton, 3 Rand. 179; Norman's ex'ix v. Cunningham & wife, 5 Grat. 63. 12 Co. Lit. 31 b.; 1 Eop. on Prop. 370; 3 Bac. Abr. Dowei*, o. 2,. p. 370; Holhrooh v. Finney, 4 Mass. Eep. 566 ; Clark v. Monroe, 14 Id. 351 ; Stow v. Tift, 15 John. Eep. 458 ; Childress v. Smith, Gilm. 200. [See May Curry v. Brien & als., 15 Pet. 21 ; 4 Kent Com. 38, 39.] I'The case arose before the statute abolishing the vendor's equitable lien, C!ode, oh. 119, J 1, and the position relied on to defeat the widow's claim to dower was, that the vendor's lien was superior to her right of dower. Allen, P., thuB'-met this position : " It is said by Chancellor Kent (4 Kent's Com. 153), ' that the taking the note, bond or covenant is not of itself an act of waiver of the vendor's lien ; for such instruments are only the ordinary evidence of debt. But taking a note, bill or bond, with distinct security, or taking dis- tinct security exclusively by itself, either in the shape of real or personal pro- perty, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose on the lien, but upon independent 46 • BILLS IN SUITS FOE DOWEB. purchased real estate jointly, and one of the terms of purehase was, that on receiving a conveyance from the vendor they should at the same time execute a mortgage of the property to secure pay- ment of the purchase money, and the vendor made the conveyance to the purchasers, and owing to a difference between the vendor and purchasers as to the provisions to be inserted in the mortgage, the mortgage was not cotemporaneously executed, but was executed ten months afterwards in fulfilment of the original contract of sale and purchase, the court held the rights of the mortgagee paramount in equity to the dower rights of the purchasers' wives, and upon the death of one of them his widow was dowable only of the equity of redemption of his moiety. Wheatley's heirs v. Calhovn, 12 Leigh 264. That a widow would be entitled to dower in an equitable estate in fee simplei* which her husband had acquired in his lifetime by a verbal contract, provided the contract be established by proof, and such as a court of equity would decree to be specifically performed, seemed to be a point conceded (though not decided) in Bowton v. Mowton, 1 H. & M. 92; but in Wheatley's heirs v. Calhoun, 12 Leigh 264^* by articles between Calhoun and "Wheatley they agreed, to make a joint purchase of land, and to divide the same between them by a specified time, Wheatley to pay the whole purchase mo- ney to the vendor, and Calhoun to pay to Wheatley his portion thereof in a certain time. After Calhoun had paid the greater part, but not the whole of the purchase money for his portion of the land to Wheatley, the agreement was rescinded, and the amount paid by Calhoun credited to him in another account — Calhoun never was in possession of the land. The court held that Calhoun had not such security ; and it dischargee the lien.' " Oilman v. Brown, 1 Mason's E. 212 ; Cole V. Scott, 2 Wash. 141 ; Brown v. Oilman, 4 Wheat. 290. " So too (adds President Allen), the presumption that the vendor intended to rely on the im- plied equitable lien is repelled by the vendor's taking a mortgage on the pro- perty subsequent to the deed of conveyance to the vendee. IMUe & al. v. Brown, 2 Leigh 353. In such case the vendee becomes the owner without qualification at the time of the conveyance ; he becomes beneficially seized to his own use ; and the wife's title to dower attaches and cfinnot be divested by the subsequent incumbrance, unless she concurs therein." 11 Grat. 443-4. i*Act of 1785, chapter 62, section 1. 15 The act of 1785 re-published, 1 E. C. 1819, chapter '99, section 31, [Code chapter 116, section 17.] This section, section 17, chapter 116 in the Code is as follows: " Where a person to whose use, or in ■ trust for whose benefit an- other is seized of real estate, has such inheritance in the use or trust, as if it were a legal right, would entitle such person's husband or wife to curtesy or dower thereof, such husband or wife shall have curtesy or dower of the said estate." PRACTICAL NOTES. 47 an equity in the land as would entitle his widow to dower under the statute ;^* the contract between Calhoun and Wheatley being executory, and such as it was competent for them to rescind. Though the right of the widow to dower in land purchased be subject to the vendor's lien for the purchase money, yet she is en- titled to have the estate of her deceased husband either in the hands of the personal representatives or of the heirs first exhausted, be- fore resort is had to her right of dower for the payment of the pur- chase money. Warner v. Van Alstyne, 3 Paige 0. R. 513. Where the mortgaged estate remains in possession of the mort- gagor till his death, and the widow is entitled to dower in the equity of redemption ; if neither the heir nor widow redeem, and the land is sold under the mortgage for more than the debt thereby secured, the excess is the value of the equity of redemption and the widow can only be endowed of one-third of that excess. Coalier, J. in Eeth V. Cocke and ux., 1 Rand. 347. Daniel purchased a tract of land on which there was a deed of trust to secure a debt which the creditor might enforce by a sale of the land whenever he might direct, and D. retained the amount of the debt out of the purchase money for the purpose of paying it. D. died largely indebted, to a much greater amount than could be paid out of his personal estate : the court held that his widow's dower in the land was subject to the deed of trust, that the land was the primary fund for the payment of the debt secured by the trust deed, and that D.'s widow was not entitled to have it discharged out of his personal estate. Daniel d ak. v. Leitch, 13 Grat, 195. In such case, if the trustee die or become unable to act, the widow might institute a suit in equity to have the land sold and the debt paid, and her dower assigned out of the residue of the purchase money. Ibid. Or the suit might have been instituted by the creditor, or the heirs, or any or either of them. Ihid. lage borrowed of the Richmond Building Fund Company on his shares in the company a sum of money upon the terms prescribed in their articles and by-laws, for the purpose of erecting a dwelling on land he owned. lage and wife, by deed of trust, conveyed the land to secure the Company. Afterwards a written contract was made with a carpenter, Martin, to erect a dwelling on the land. The mechanics lien was by consent of Martin transferred to Boisseux, who undertook to advance the money for the building, and the con- tract was recorded. The cost of the building was $886 86. Of this sum lage paid during the progress of the work $600. To make this payment of $600, it was known to the parties that lage was to receive, and did receive of the Building Fund Company, in addition to the sum of $120 received before the execution of the trust deed, the farther sum of $461, which was paid to Boissieux, '"Code, chapter 116, section 17. 48 BILLS IN SUITS FOR DOWER. with tte knowledge on his part that it was obtained from the Com- pany. ■ A suit was instituted by Bossieux, in which lage and his wife, the Building Fund Company, and the trustees in the deed to secure the Company were parties. The Court of Appeals held that the suit by the assignee, Boisseux, could be maintained ; that the Company was entitled to priority over the mechanic's lien for its advances made after the contract recorded, as well for its advances made before ; that the wife's contingent right of dower, she having joined in the trust deed, was subject to the claim of the Company under the trust deed, but that it was paramount to the claim under the mechanic's lien ; that the property should be decreed to be sold out and out, and first applied to the payment of the debt due the Company ; and that proper provision should be made by the Circuit Court to compensate the wife's dower interest out of the surplus proceeds of sale, if any, before any part of it was paid to Boissieux, the assignee of the mechanic's lien." A widow is not endowed of partnership property as against the creditors of the firm. Pierce v. Trigg, 10 Leigh 406. See 1 Lom. Dig. 649. Where land is held as partnership property, and there is an agreement between the partners that on dissolution of the partnership the land shall be sold, it has been held that such an agreement converts the land into personalty. Thornton v. Dixon, 3 Bro. C. C. 199 by Belt, note. See Wheatley's heirs v. Calhoun, 12 Leigh 264, and Pierce v. Trigg, 10 Leigh 406. Judge Lomax de- duces from the cases the following principle : that real estate purchased with the joint efiects of a partnership will, as between the partners, be considered personal estate ; and it has been inferred (he says) that real estate would with other joint property be pri- marily liable to the payment of the joint partnership debts, as 1' The Court of Appeals also held, that before decreeing a sale of the house and lot the Circuit Court should have determined the priorities as between the Building Fund Company and the assignee of the mechanic's lien ; and that it was error merely to decree a sale and direct the proceeds to be brought into court. lage v. Bossieux, 15 Grat. 103. " It is a well settled rule, say the court, that where there are conflicting claims to priority of payment, out of the proceeds of land about to be sold to satisfy the liens upon it, the court, in order to prevent the danger of sacrificing the property by discouraging the creditors from bidding, as they probably might, if their right to satisfaction of their debts and the order in which they were to be paid out of the property, were previously ascertained, should declare the order of payment before it decrees the sale to be made. Cole's adm'or v. McEae, 6 Rand. 644 ; Buchanan v. Clark, &c., 10 Gratt. 164. It is, therefore, not sufficient that the court should direct the fund to be paid into court, and should declare the priorities after- wards. The purpose for which it is done requires that it should precede the sale." - ■ PK ACTIO AL NOTES. 49 between the representatives ; and that if the heir or widow of a partner be entitled, their right can attach only to the surplus. 1 Lorn. Dig. 649, citing 1 Eop. Prop., 2d edit., 346, and note. See Broolce v. Washington, 8 Grat. 248. Since 1808, when Pitts v. Waugh, 4 Mass. Eep. 424, was decided, the partnership law in regard to real estate has undergone great changes : By Tucher, P. in Broolce v. Washington, 8 Grat. 256, citing Gollyer on Partnership, § 135, and notes. A wife joining her husband in a lease for years, surviving her husband, is entitled' to dower in the rent. Herbert (& als. v. Wren (& ah., 7 Oranch 370. Equities of redemption are not in terms included with trust estates in the statute [Code, ch. 117, § 16 ; 1 E. 0. oh. 99, § 31], yet the Court of Appeals of Virginia has construed that provision of the law as designed to place the rights of dower upon the same ground as the right to curtesy, and has, therefore, determined that a wife may, as against the heir, be endowed of the redemption of land mortgaged in fee. p[eth v. Cocke, 1 Eand. 344. A widow is dowable of land held by her husband in the Dismal Swamp, which is incapable of cultivation, and no otherwise produc- tive or valuable than by selling or working the timber and making sale of the shingles into which it is converted ; and she is entitled to an account of the profits thus made by the tenants from the land. Macaulay v. Dismal Swamp Co., 2 Eob. E. 507, 528, 529 ; and though the land had been conveyed in trust, yet as the husband remained in possession during his life, the trustees making no sale under the trust deed until after his death, the husband was con- sidered as having died seized of the land, subject to the deed of trust, and his widow was held entitled to dower in the land and to receive rents and profits from the husband's death in like manner as if the deed had not been made. Ibid. And the widow having died, her personal representative was entitled to recover the rents and profits up to her death. Ibid. A widow may work mines already open upon land assigned to her for dower. 1 Lorn. Dig. 106 ; 2 Eob. E. 525. She cannot open new mines (1 Lorn. Dig. pp. 64, 97 ; 2 Eob. E. 525), but she may sink new shafts into the same veins of coal in which shafts have been sunk before (Crouch v. Puryear, &c., 1 Eand. 258), and she may sink a shaft into a seam lying below another already opened {Ibid)^' and may open new pits or shafts for working the old veins of coals, for otherwise, the working the same mines would be im- practicable. Clavering v. Clavering, 2 P. Wms. 388. A woman is not dowable both of the lan^ given in exchange and '8 See Coates v. Oheever, 1 Cowen 460; ffindlay v. Smith, &o., 6 Manf. 142 ; and 2 Bob. R. 525. 60 BILLS IN SUITS FOR DOWER. of the land taken' in exchange, but she may have her election to be endowed of which she will. 1 Lorn. Dig. 101. The wife of a tenant in common acquires merely an inchoate right to dower in the land subject to the contingency of partition, incident to the estate, and by which her interest may be increased or diminished : if, therefore, partition be made of the land by the tenants in common, whether by deed or otherwise, the wife of one of the tenants in common will be dowable of such part only as is assigned to her husband by the partition. Patter v. WheaUm, 13 Mass. R. 504. Eelease oe Dower. — Code, ch. 121, §§ 4 and 7 ; Session Acts 1869-70, p. 174. Must be 21 years of age. See Thomas v. Oarw- mell (& ux., 6 Leigh 9. What will bar Dower. — Code, ch. 110, §§ 4, 5, as amended by Sess. Acts 1865-6, p. 166, provides as follows : 4. If any estate, real or personal, intended to be in lieu of dower shall be conveyed or devised for the jointure of the wife, such conveyance or devise shall bar her dower of the real estate or the residue thereof; and every such provision, by deed or will, shall be taken to be intended in lieu of dower, unless the contrary inten- tion plainly appear in such deed or will, or in some other writing, signed by the party making the provision. 5. But if such conveyance or devise were before the marriage, with- out the assent in writing, or during the infancy of the feme, or if it were after marriage — in either case, the widow may, at her election, waive such jointure and demand her dower. Such election shall be made within one year after the death of the husband, or within one year after the admission of his will to probat where the provision is by will, and shall be made in any court of record in the county or cor- poration in which the husband resided at the time of his death, or in the clerk's office of which the instrument creating the jointure is recorded, or by a writing recorded in such court, or in the clerk's office thereof, upon such acknowledgment or proof as would author- ize a writing to be admitted to record under chapter 121 ; and when she shall elect and receive her dower, the estate so conveyed or de- vised to her shall cease and determine. Code, ch. 110, §§ 6 and 7, provides as follows : 6. If a widow be lawfully deprived of her jointure, or any part thereof, she shall be endowed of so much of the real estate whereof, but for said jointure, she would have been dowable, as is equal in value to that of which she was deprived. 7. If a wife of her own free will leave her husband, and live in adultery, she shall be barred of her dower, unless her husband be afterwards reconciled to her and suffer her to live with him. PRACTICAL WOTES. 61 The amendment to the 4th section of chapter 110 of the Code, made in the Session Acts 1865-'6, page 166, above cited, changes the rule laid down in Sigginhotham v. Cornwell, 8 Gratt. 83. In that case the court held that a provision for a wife in the will shall not be construed ae in lieu of dower, unless the will so declare in terms; or the conclusion from its provisions be as clear and satisfac- tory as if it was so expressed. The statute cited above requires that if a contrary intention do not appear plainly either in the deed or will of the party making provision for his wife, or in some other writing signed by the party making the provision, the courts shall hold such provision to be in lieu of dower." The question suggests itself whether if such provision be made by deed, this statute would be held by the courts as affecting the widow's right to dower in property acquired by the husband subse- quent to the deed. If the statute shall be held to apply to such after acquired property, deeds making provision for a wife, at any stage of a man's fortune, should declare plainly the intention of the grantor, both as regards his then estate and his subsequently ac- quired estate. In Oraig's heirs v. Walthall and wife, 14 Grat. 518, a case arising under the law as it stood in the Code before the amendment of lS66-'7, the testator devised all his land to his different children, giving the wife one of the parcels during her widowhood, which parcel had the improvements upon it. He also gave her his slaves for life, and all the rest of his property to enjoy and use for the best interests of his children ; and the interest on the bonds due him to be used by her for the benefit of his children: The court held the will to be in lieu of dower. In the case just cited, the widow was told that the provision in the will was in lieu of dower, and advised to renounce it. She de- clined to do so, and expressed herself satisfied with the provision. She took possession' of the property, and held it for four years, until she married. The court decided that an election might be made by acts in pais, that she had elected to take under the will, and could not then claim her dower. 14 Grat. 525. The principles applicable to the case of a widow as to the necessity of electing between her right of dower and the provisions of the will are the same as those applicable to other persons ; and if the widow's taking dower will clearly interfere with the provisions of the will, she must select. Dixon V. McOue d als., 14 Grat. 540. The statute now requires to effect a waiver of the jointure and demand of dower, that the elec- tion shall be made in court, or in the clerk's office, or by a writing duly acknowledged or proved for record. Session Acts 1865-6, page 166, cited supra, p. 50. ''■^ The amendment was probably suggested by the Act 3 and 4, Will. 4, chapter 105, section 9. See this statute cited, 1 Lea, Ca. in Equity (Amer. . edit. 1852), page 247 (marg.) 52 BILLS IN SUITS FOR DOWER. Dower in the realty and the distributive share of the widow in the personalty are entirely different things, and in construing a mar- riage agreement, declaring that certain sums of money were " to be considered as in bar of and in full compensation for said E.'s dower," the court held that while the agreement barred E. of her dower in her husband's real estate, it did not deprive her of her distributive share of his personal estate. Flndley's ex'ors v. Findley^ 11 Grat. 434, 438. See Colleton v. GaHh, 6 Sim. 19. In Sealy d als. v. Rowan d als., 5 Grat. 430, the court cited with ap- probation the doctrine of Tabh v. Archer, &c., 3 H. and M. 399, that " marriage articles made between an infant feme and her intended husband, beneficial to her and her contemplated issue, are obliga- tory upon the parties, and will be enforced in a court of equity by a settlement in conformity therewith, on the application of the issue of the marriage ;" such a contract is thus distinguished from other contracts, voidable at the election of an infant party.™ The decision in Healy v. Rowan, 5 Grat. 430, was made in a case arising under the statute, 1 Eevised Code, chapter 107, section 11, page 405, the language of which is as follows : " But if the said conveyance were before the marriage, and during the infancy of the feme, or, if it were after marriage, in either case the widow may, at her election, waive such jointure, and demand her dower." If in Sealy v. Rowan, the infant feme had been a party to the mar- riage articles, they would have been held binding upon the wife ; but the marriage articles were there executed by the guardians of the feme and not by herself, and the court declared them to be of no obligatory force upon the infant feme, and that a deed of settle- ment made after the marriage, in conformity with these articles, had no greater effect, being merely void as to her for want of the privy examination required by law. The election by the widow, if she mean to waive the jointure, and demand her dower, must be made under the terms of the statute, within a specified time. This statute was passed February 21st, 1866. This was not the rule before this statute. The pro- vision in the Revised Code of 1819, ch. 104, § 26, requiring renun- ciation of the will by a certain time, related to personal property only.- Tate's Dig. 293. See the cases as to making the election as the law stood prior to February 21st, 1866, so as to bar the widow's right of dower. Notes to Streatfield v. Strealfield, 1 Lea. Gas. Eq. (Amer. edit.), pp. 239 et sea. (marg.) ; Blunt d als. v. Gee <£ als., 5 Call 481. "What Widow entitled to befoeb Dower Assigned. — Code, ch. 110, § 8, provides : ™ Allen, P., would express no opinion on the point, it not being necessary to the decision of the case. 5 Grat. 432. PEACTICAL NOTES. 53 8. Until ter dower is assigned, the widow shall be entitled to demand of the heirs or devisees one-third part of the issues and profits of the other real estate which was devised or descended to them, of which she is dowable ; and in the mean time may hold, occupy and enjoy the mansion house and curtilage, without charge ; and if deprived thereof may, on complaint of unlawful entry or detainer, recover the possession with damages for the time she was so deprived. A widow may nnder this statute hold, occupy and enjoy the mansion house and curtilage without charge, until dower assigned ; and until dower assigned is entitled to demand one-third of the rents, issues and profits of the other real estate. The language of the- Code of 1819, 1 B,. C, ch..l07, sec. 2, was as follows : " And till such dower shall be assigned, it shall be lawful for her to remain and continue in the mansion house and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same ; any law, usage or custom to the contrary in any wise notwithstanding." Carr, J., pronouncing opinion of the court, said that it was unnecessary in Grayson <£ ux. v. Moncv/re, 1 Leigh 451, to decide the general question whether the widow was entitled under that statute to all the rents, issues and profits of the mansion house and plantation thereto belonging until dower assigned ; that the widow having obtained a decree against the itifant heir, direct- ing commissioners to assign- dower which she might have had exe- cuted immediately, but did not for a year, during which she remained in the mansion house, and assented to the cultivation of the land by the agent of the heir, and after her dower assigned having received one-third of the rents of the messuage and planta- tion thereto belonging, accrued before dower assigned, and claimed no more at the time, she could not' by a subsequent action recover the other two-;thirds of the rents. While the statute, 1 E. 0. 1819, ch. 107, sec. 2, was in force, Joseph McEeynolds, by his last will, devised that his wife Eebecca during her life should have the use and profits of all his real estate as a home and support for her during her' life, and after her death to pass unencumbered in absolute fee to his son Isaac. The personal estate he gave in eight equal shal'es to his seven children and the children of a deceased son. The widow renounced the will. Her dower not having been assigned, she continued for some years to occupy the land herself or through her son Isaac. A bill was filed for the purpose of assigning her dower and making partition of the other two-thirds of the real estate, and seeking an account of the rents and profits thereof. The Circuit court directed an assignment of one-third of the real estate as dower, a partition of two-thirds of the real estate into eight parts among the eight children of the tes- tator, or their heirs or vendees, and an account of the rents and 64 BILLS IN SUITS FOR DOWEK. profits of the two-thirds from the time of the waiver and renuncia- tion. The Oourt of Appeals reversed the decree of the Circuit court in the last mentioned particular ; held that the waiver and renunciation of the widow placed her in the same condition she would have occupied had there been no will ; that she was entitled to occupy the mansion house and land thereto belonging without . rent until dower assigned, and that she might occupy the land her- self or allow another to do it for her, and it was error to direct an account of the rents and profits whilst it was so held either by her- self or by Isaac McEeynolds with her permission. McReynolds v. Counts (& als., 9 Grat. 242. See also Wiseley v. Findlay, 3 Rand. 372. How DowEE Assigned. — Code, chapter 110, section 9, provides : 9. " Dower may be assigned as at common law ; or upon the motion of the heirs or devisees, or any of them, the court in which the wiU of the husband is admitted to record, or administration of his estate is granted, may appoint commissioners, by whom the dower nay be assigned, and the assignment, when confirmed by the court, shall have the same effect as if made by the heir at common law. But nothing herein contained shall be construed to take away or afiect the jurisdiction which courts of chancery now exercise over the sub- ject of dower." The widow is not entitled, as of right, to have the mansion house included in the dower assigned to her. Devaughn v. Devaughn, 19 Grat. 556. At common law, the heir had the power of assigning dower with- out resorting to any court, and that power is not impaired by the statute. An assignment of dower by commissioners, under an order of court, at the instance of one of several coheirs, is binding on the widow, provided it be a full and just assignment ; and it is oinding also on the coheirs, though they be infants, provided the assignment is not excessive. Moore (& ux. v. Waller, &c., 2 Eand. 418. In Fitzhugh d ux. v. Foote d als., 3 Call 13, there had been in 1780 an assignment of dower in lands and slaves by order of a county court by motion, and without a suit for the purpose. Some time after, the children of the testator filed their bill, complaining of the assignment of dower, and the Chancellor set aside the allotment of dower altogether in the slaves, the allotment being unequal and excessive, and ordered a new assignment. The Court of Appeals (in 1801) said, under all the circumstances of the case, ■ a new division of the slaves, after such a length of time, for a small excess, ought not to have been ordered, especially as the whole of the dower slaves, with their increase, will belong to the appellees on the death of their mother. A reformation of that which was wrong ought to have been decreed, and a return or delivery of a part of the slaves, PEACTICAL NOTES. 55 to the value of the excess, if that could be properly done ; account- ing also for profits, as usual in such cases ; or, if that could not pro- perly have been done, then a satisfaction in money, or in payment of interest for the amount of such excess, .should have been di- rected." In Maper v. Saunders, 21 Grat. 60, the testator directed first, that so long as his wife L. remained his widow, all his property, real and personal, should be kept together, and subject to the control of his executor, but the possession to remain with L. during her widow- wood : second, if she married she was to take one-third of the estate, and the remainder to go into the possession of his executor ; 'and if in his opinion it should at any time thereafter be for the in- terest of the testator's children to sell the entire estate, and lend the money for their benefit, the executor might sell the same in his discretion. The widow renounced the will, and dower was assigned to her by an order of court, to which the children were not parties. The executor and widow, she selling her dower interest, joined in selling and conveying the land, the executor acting under the power : The Court of Appeals held, that the executor had no autho- rity to sell under the power during the widowhood of L. ; that on a bill to set aside the sale filed by the children, the court might set the sale aside, so far as made by the executor, and confirm it, so far as made by the widow, and direct a new assignment of dower ; and that though the bill did not pray that the sale should be set aside, yet as it made a proper case for such relief, it might be given under the prayer for general relief. As already stated,^' there cannot be a decree for a specific sum in lieu of dower without the assent of all the parties interested. Blair V. Thcmvpson (& ah., 11 Grat. 441 ; White v. White c& ah., 16 Grat. 264 ; and where land in which there is a right of dower is sold in a suit in which the tenant in dower is a party, the other parties have a right to insist that instead of a sum in gross, one- third of the purchase money should be set apart, and the interest thereof paid annually to the tenant in dower during her life ; Wihon <& ah. V. Davisson, 2 Bob. R. 384 ; Herbert <£ ah. v. Wren d ah., 7 Cran. 380 ; the tenant in dower has the same right, White v. White (£ ah., 16 Grat. 264. But there are cases in which the dowress consenting, the dower may be commuted -jvithout the consent of the heirs.''^ ^1 Page 41, ante. 22 The author has been furnished (with liberty to use it in this work) a note by William Oreen, Esq., filed in the Chancery Court of Richmond in a suit by creditors of the decedent, the widow claiming her dower. The doctrines of this note are believed to be true : " Upon a principle analogous to that acted upon and recognized in Cole's 56 BILLS JN SUITS FOR PARTITION. PARTITION. Form of a Bill for Partition. To the Honorable A. B., Judge of the Court of the county of : Complaining showeth unto the court, your com- plainant, James J., that your complainant's father, Thomas J., was in his lifetime seized and possessed of certain real estate lying in the county of [here describe it], and being so seized and possessed of the said real estate, sometime in the year 18 — , the said Thomas J. departed this life intestate, leav- ing your orator and Robert J., Emma J. and Samuel J., his only children and heirs at law. The said adrrCr v. McBae, 6 Band. 644 ; Cralle v. Meem, 8 Grat. 496 ; Buchanan v. Clarh, 10 Grat. 164 ; lage v. Bossiiux, 1 5 Grat. 83 ; Hovey y. Selms, 20 Grat. 1 ; lAps- comh V. Rogers, Ibid. 658, it seems necessary that before a sale is made, the dower of the widow should be set out, so that a purchaser may know what part will pass at once into his possession, and what not, until her death, or that a valid arrangement be made for dispensing with it. The latter seems preferable for the creditors if it can be accomplished. In general, a gross sum of money, by way of oornmutation for dower, is not allowable without the consent of all parties concerned, Herbert v. Wren, 7 Cranch 370, 380, 81, 82 ; Wilson V. Davisson, 2 Bob. E. 384, 402-3 ; Blair v. Thompson, 11 Grat. 441, ,451, 452 ; and, in this case, it doubtless cannot be without the consent of the dowress ; but if she consents, it seems the court may bind all other parties to the cause by its decree (though without their consent) that the land shall be sold exempt from dower, and that she shall have in lieu thereof so much of the sale money as shall be just compensation therefor, to Ue ascertained and reported by a oommissionerj the sale here being made for the satisfaction of creditors, and being certain not to yield proceeds enough therefor. I do not remember in our Virginia books any reported authority for this, but it has certainly been so practiced in some cases in the Circuit courts, and I find re- ported authority for it elsewhere. Cassamore v. Brooke, 3 Bland 267 ; MeCor- mick V. Gibson, S" Bland 499, 502 n." BILLS IN SUITS FOR PARTITION. 57 Emma and Samuel are infants under the age of twenty-one years.- And your orator farther states, that the said real estate is, as he believes, susceptible of partition among the parties thereto ; but if it be not, then your complainant desires the same to be sold, and the proceeds divided among the adult and the in- fant parties, according to their respective rights; the shares of the infants to be held as directed by the statute in such case made and provided. Should the property not be divisible in kind, your complain- ant believes, and here states, that the interests of those who are entitled to the said real estate, or its proceeds, will be promoted by a sale of the whole of said real estate, or by an allotment of part and sale of the residue.* In tender consideration whereof, and forasmuch as your complainant is remediless in the premises save by the aid of a court of equity, where matters of this kind are alone and properly cognizable, your com- plainant prays that the said Robert J., Emma J., and Samuel J. may be made parties defendant to this bill, and required on their oaths to answer the same ; that a proper guardian ad litem be assigned the infant defendants to defend their interests in this suit, who shall also answer this bill ; that proper process issue ; that the said real estate be divided between the seve- ral parties entitled thereto, and your complainant's portion thereof be allotted to him, and in case the said real estate cannot be partitioned and divided in kind, that the same be exposed to sale, and the pro- ceeds of such sale be divided among the parties en- 58 BILLS IN SUITS FOE PARTITION. titled thereto ; that all proper orders and decrees may be made, and proper enquiries be directed, and that all such other, farther and general relief may be afforded your complainant as the nature of his case may require, or to equity shall seem meet. And your complainant will ever pray, &c. James, J. X. X.,' p. q. Form of Bill for Partition and Account Follow form on pp. 56, 57 to star *, then say : Your complainant farther states, that the said Robert J. has been enjoying the said property, the whole of it, ever since the death of the said Thomas J., and has been receiving the rents and profits thereof, one-fourth of which rents and profits should be paid to your complainant, and the other shares thereof to the parties entitled thereto. In tender consideration whereof, and forasmuch as your complainant is remediless in the premises save by the aid of a court of equity, where matters of this kind are alone and properly cognizable, your com- plainant prays that the said Robert J., Emma J., and Samuel J. may be made parties defendant to this bill, and required on their oaths to answer the same ; that a proper guardian ad litem be assigned to the infant defendants to defend their interests in this suit, who shall also answer this bill ; that the said real estate be divided between the several parties entitled thereto, and your complainant's portion thereof allotted to him, and in case the said real estate cannot be partitioned and divided in kind, BILLS IN SUITS FOR PARTITION. 59 that the same be exposed to sale, and the proceeds of such sale be divided among the parties entitled thereto ; that an account be taken of the rents and profits of the said real estate from the death of the said Thomas J., and the said Robert J. be decreed and ordered to pay to your complainant his portion thereof; that proper process issue ; that all proper orders and decrees may be made, and proper en- quiries be directed^ and that all such other, farther and general relief may be aflfbrded your complainant as the nature of his case may require, or to equity shall seem meet. And your complainant will ever pray, &c. James, J. X. X., p. q. Form of Bill for Partition when some of the Parties are unknown.^ To the Honorable A. B., Judge of the Court of the county of : Complaining showeth unto the court, your com- plainant, James J., that your complainant's father, Thomas J., was in his lifetime seized and possessed of certain real estate lying in the county of [here describe it], and being so seized and possessed of the said real estate, sometime in the year 18 — , the said Thomas J. departed this life intestate, leaving Ro- bert J., Julian J., and Samuel J., his only children and heirs at law; the said Emma and Samuel are in- fants under the age of twenty-one years. The said 23 Code, oh. 124, ? 4; ch. 170, U 10. H. 12, 13. Seas. Acts 1830-1, p. 99, oh. 31, U 1-6- Tate's Dig. V26-728. 60 BILLS IN SUITS FOR PARTITION. Julian J., sometime after the death of the said Thomas J., removed to the State of Kentucky, and married Lucy R., and then removed to some other State, your complainant believes to Texas; and after- wards, as was reported, the said Julian J. departed this life, and his widow has also since died. Your complainant has heard, and believes that Julian left several children and heirs at law ; the number and the nam«s of whom are unknown to your complain- ant. The said children and heirs at law of said Julian J. would be entitled together to one-fifth of the said real estate. And your orator farther states, that the said real estate is, as he believes, susceptible of partition anaong the parties thereto; but if it be not, then your complainant desires the same to be sold, and the pro- ceeds divided among the adult and the infant parties according to their respective rights ; the shares of the infants to be held as directed by the statute in such case made and provided. Should the property not be divisible in kind, your complainant believes and here states that the interests of those who are entitled to the said real estate or its proceeds will be promoted by a sale of the whole of said real estate, or by an allotment of part and sale of the residue. In tender consideration whereof, your complainant prays that the said Robert J., Emma J., Samuel J., and the unknown heirs at law of the said Julian J., deceased, may be made parties defendant to this bill, and required on their oaths to answer the same ; that a proper guardian ad litem be assigned the infant defendants to defend their interests in this suit, who PEACTICAL NOTES. 61 shall also answer this bill ; that proper process issue ; that an order of publication be made against the said unknown heirs at law of the said Julian J., deceased, and duly published ; that the said real estate be divided between the several parties, &c., &c., (following form on p. 66, 57 to the end.) Form of Bill of Partition hy one Tenant in common against another. See Willis's Equity Pleadings, 106. [See Forms of Partition at Law before the Statute in Virginia giving equity complete jurisdiction, in 1 Rob. Forms 205, 206 ; also 3 Chit. PL 1390-1407.] PEACTICAL NOTES TO BILLS FOE PAETITION. Code, ch. 124, §§ 1-6, 1 Lom. Dig. 484-487 (marg.), 490-496 (marg.), 506-509 (marg.); Mitf. PI. 119, 120, 122,123; Story's Eq. Jur., §§ 646-658 ; 17 Ves. 545, 553, 554, Agar v. Fairfax; 2 Sch. & Lefr. 871, 372, Whalet/ v. Dawson; 1 Jao. & Walk., 473, Miller y. Warmington; 2 Ves., Jr., Calmady v. Calmady; 1 P. Wms. 446, 447, Earl of Clarendon y. Sornby; 6 Sim. R. 643, Gas- hell V. Gashell; 1 Younge & Ool. 588, 2 Younge & Col. 586, 8tor^ Y. Johnson; 4 Barb. 228, Haywood v. Johnson. As to partition between joint tenalits, voluntary, see 1 Lom. Dig. 484 (marg.), by suit in equity, 1 Lom. Dig. 486 (marg.) et seq. As to partition between coparceners, voluntary, see 1 Lom. Dig. 490-494 (marg.), by suit in equity,' 1 Lom. Dig. 494, 495 (marg). As to partition between tenants in common, voluntary, see 1 Lom. Dig. 505 (marg.), by suit in equity, 506-509 (marg). At common law partition by joint tenants could be made only by deed, and by tenants in common only by livery without deed ; and coparceners could make partition as well by parol without deed or livery as by deed." Until the Statute, 31 Hen. VIII., ch. 1, only coparceners could be compelled to make partition ; that Statute " Litt,, g 250, and Coke's note. 62 BILLS IN SUITS FOR PARTITION. authorized tenants in common and joint tenants to sue for partition. See this Statute as printed in Alln. on Partition, pp. 165, 166. It is not necessary to state in the bill any peculiar ground of. equitable interference, Mitf. PI. 120.. The present Statute of Virginia in regard to partition is as follows : By Code, chap. 124, Partition of Lands. § 1. Tenants in common, joint tenants and coparceners shall be compellable to make partition, and the court of equity of the county or corporation, wherein the estate or any part thereof may be, shall have jurisdiction in cases of partition, aud in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceeding. § 2. Any two or more of the parties, if they so elect, may have their shares laid off together, when partition can be conveniently made in that way. § 3. (As modified by Session Acts 1869-70, p. 548.) When par- tition cannot be conveniently made, the entire subject may be allotted to any party who will accept the same, and pay therefor to the other parties such sums of money as their interest therein may entitle them to ; or in any case now pending, or hereafter brought, in which partition cannot be conveniently m^dB, if the interests of those who are entitled to the subject or its proceeds will be pro- moted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be an infant, insane person or married woman, may order such sale and allotment, and make distribution of the proceeds of sale ac- cording to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant or coparcener, to have the proceeds of such • deceased person's part applied according to the rights of such credi- tors. The court making an order for sale shall, when the dividend of a party exceeds the value of three hundred dollars, if such party be an infant or insane person, require security for the faithful appli- cation of the proceeds of his interest in like manner as if the sale were made under chapter 128. § 4. If the name or share of any person interested in the sub- ject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill. § 5. Any person who before the partition or sale was leasee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold, pn the same terms on which by his lease he held it before the partition. Partition of Slaves or other Chattels. § 6. When an equal division of slaves, goods or chattels cannot PRACTICAL NOTES. 63 be made in kind among those entitled, a court of equity may direct the sale of the same and the distribution of the proceeds according to the rights of the parties. By Code, chap. 123, sec. 15. Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and he or any de- scendant of his shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and per- sonal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal. By Code, chap. 163, sec. 15. The clerk of the court wherein there is any partition of, or assignment of dower in land under any order, or any recovery of land under judgment or decree, shall transmit to the clerk of the court of each county or corporation, wherein such land is, a copy of such order, judgment or decree, and of such partition or assignment, and of the order confirming the same, and along therewith such description of the land as may ap- pear in the papers of the cause. And the clerk of the court of such county or corporation shall record the same in his deed book, and index it in the name of the person who had the land before, and also in the name of the person who became entitled under such partition, assignment or recovery. See also Code, chap. 104, sec. 30. JUEISDICTION IN EQUITY. The claim to partition, before the statute, was in Virginia matter of right,^ and not of discretion, when plaintifi' showed a clear legal title. Wisely v. Plndlay <£ als., 3 Eand. 361 ; Castleman, &o. v. Veiteh, &c., 3 Eand. 598 ; Sttuirt's heirs v. Goalter, 4 Eand. 74. See note, p. 64 j90s<. Where the legal title was disputed or doubtful, it was the prac- tice, before the Statute above cited, for the court of equity either to dismiss the bill, or retaining the bill, only to grant relief after the plaintifFhad established his title at law, by ejectment or other legal remedy. Btrav^ghan v. Wright, 4 Eand. 493 ; Stuart's heirs v. Coal- ter, 4 Eand. 74. By the present statute, courts of equity in Virginia " take cogni- ®,By reason of the act, 31 Hen. VIII., chap. l,as to joint tenants and tenants in common ; at common law as to coparcerners. See Alln. Part. 55, 56. See also Baring v. Nash, 1 Ves. & B. 555, 556. barker v. Oeriard, Ambler R. 236, and Mr. Blunt's note. 64 BILLS IN SUITS FOR PARTITION. zanoe of all questions of law affecting the legal title that may arise in any proceeding," Code, chap. 124, sec. ISG.'" ^* This language is substantially the same with the concluding clause of the 4th section of this 124th chapter, as originally reported by the Eevisors. The Eevisors had said in that clause of that section ; " But the court may decide upon the right or legal title of the plaintiff where it is disputed," and appended to the said section a note, in which they said, that while it was well settled that the right to have partition in equity is not discretionary with the court, but may be claimed ex debito justiti(B,,sti\l it seems to be " an indispensable requisite to entitle the plaintiff to relief in such cases, that he shall have a clear legal title. If his title depends on difSoult and doubtful questions of law, the decree is suspended until he establishes his title at law, not by writ of partition, but by ejectment or other legal remedy;'' Wisely v. Mndlay, 3 Baud. 370; Stuart's heirs v. Coalter, 4 Eand. 74; that they saw no reason for the restriction on the equity jurisdiction in Virginia, and proposed to abolish it. The Code, as enacted, removes the restriction. In Miller v. Warmington, 1 Jac. & Walk. 473, Sir Thomas Plumer, M. E,, said that it was essential to a partition in equity that the legal title should be before the court, and urged in support of his view, that if the equitable title only was there, the conveyances, if any were necessary, could ndt be made. This difficulty, in the English admiuistration of relief in partition, does not embarrass us in Virginia. The Statute, Code, chap. 163, sec. 15 (copied from 1 E. C. 1819, p. 65, sec. 14), seems to dispense with conveyances, making the decree of the court decreeing partition take their place. And it has been the almost universal practice in Virginia not to decree mutual conveyances in cases of partition'. The Statute is as follows : — " ^ 15. The clerk of the court wherein there is any partition of, or assignment of dower in, land under any order, or any recovery of land under judgment or decree, shall transmit to the. clerk of the court of each county or corporation, wherein such land is, a copy of such order, judgment or decree, and of such partition or assignment, and of the order confirming the same, and along therewith such description of the land as may appear in the papers of the cause. And the clerk of the court of such county or corporation shall record tlie same in his deed book, and index it in the name of the person who had the land before, and also in the name of the person who became entitled under such partition, assignment or recovery." — Under the terms of the New York Statute, which provided that all partitions made under and in virtue of the proceedings had in the court of chancery should be firm and effectual forever, and that the final decree of the court for, or upon the partition, &c., should be binding and conclusive, as if such partition, &c., had been made in a court of law ; Chancellor Kent held that it was unnecessary to decree mutual conveyances. -His decree was: "That the said partition remain firm and effectual forever, and that the said parties respectively hold and enjoy in severalty the said portions of the premises set apart and allotted to them as aforesaid." Young TER VII Of the filing of the bill or information, and of subse- quent proceedings at Bules in the clerFs office, or at chambers, in the United States Circuit Courts. FILING OF BILL. 93. The filing of the bill is the first step in a suit in equity in the United States Circuit Courts." The court is always open for this purpose/ As soon as the bill is filed, the clerk issues the process of sub- poena thereon, as of course, upon the application of the plaintifi^, returnable into the clerk's oflce the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing of the subpcena. At the bottom of the subpoena is placed a memo- randum, that the defendant is to enter his appear- ance in the suit in the clerk's office on or before the day at which the writ is returnable, otherwise the bill may be taken pro confesso. When there are two or more defendants, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpoena may be issued against all the defendants.' ' 11th rule United States Supreme Court. ^ See 1st rule United States Supreme Court. ' 12th rule United States Supreme Court. UNITED STATES CIECUIT COURTS. 139 SERVICE OF PROCESS. 94. The service of all subpoenas is by delivery of a copy thereof by the officer serving the same to the defendant personally, or in case of a husband and wife to the husband personally, or by leaving a copy thereof at the dwelling house or usual abode of each defendant, with some free white person, who is a member or resident in the family.' 95. Whenever any subpoena is returned not exe- cuted as to any defendant, the plaintiff is entitled to another subpoena, toties quoties, against such defen- dant, if he shall require it, until due service is made.' 96. The service of all process in equity causes in these courts, whether mesne or final, is by the mar- shal of the district, or his deputy, or by some other person specially appointed by the court for that pur- pose, and not otherwise; in the latter case, the person serving the process must make affidavit thereof? 97. Upon the return of the subpoena, as served and executed upon any defendant, the clerk enters the suit upon his docket as pending in the court, and states the time of the entry.' APPEARANCE. 98. The appearance day of the defendant is the rule day to which the subpoena is made returnable ; provided he has been served with the process twenty days before that day ; otherwise his appearance day * 13lh rule United States Supreme Court. 5 14th rule Uuited States Supreme Court. 6 15th rule United States Supreme Court. See 2 Abb. U. S. Practice, 29 n. ' 16th rule United States Supreme Court. 140 PROCEEDINGS AT RULES. will be the next rule day succeeding the rule day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, will be entered in the order book on the day thereof by the clerk.' BILL TAKEN FOR CONFESSED. 99. It is the duty of the defendant, unless the time be otherwise enlarged, for cause shown, by a judge of the court upon motion for that purpose, to file his plea, demurrer or answer to the bill in the clerk's office on the rule day next succeeding that of entering his appearance^ in default thereof, the plain- tiff may, at his election, enter an order (as of course) in the order book, that the bill be taken for confessed; and, thereupon, the cause will be proceeded in ex parte, and the matter of the bill may be decreed by the court at the next ensuing term thereof accord- ingly, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, will be entitled to process of attachment against the defendant, to compel an an- swer; and the defendant will not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to, or fully answering the bill within a period to be fixed by the court or judge, and under- taking to speed the cause." * 17th rule United States Supreme Court. ° 18th rule United States Supreme Court. UNITED STATES CIRCUIT COUKTS. 141 100. When the bill is taken for confessed, the court may proceed to a decree at the next ensuing term thereof, and such decree will be deemed absolute, unless the court shall at the same term set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defen- dant. And no such motion will be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct for the purpose of speeding the cause.'" AMENDMENTS OF BILLS. 101. The plaintiff is at liberty, as a matter of course, and without payment of costs, to amend his bill in any matters whatever, before any copy has been taken out of the clerk's office, and in any small mat- ters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point, as he may do of course, after a copy has been so taken, before any answer or plea or demurrer to the bill, he is required to pay to the defendant the costs occa- sioned thereby, and without delay to furnish him a fair copy thereof, free of expense, w;ith suitable refer- ences to the places where the same are to be inserted ; 1" 19th rule United States Supreme Court. 142 PROCEEDINGS AT RULES. and if the amendments are numerous, he is required to furnish in like manner to the defendant a copy of the whole bill as amended, and if there be more than one defendant, a copy is to be furnished to each de- fendant affected thereby." 102, After an answer or plea or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule day, upon payment of costs, or without payment of costs, as the court or a judge thereof may, in his discretion, direct ; but after replication 'filed, the plaintiff will not be per- mitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plain- tiff's submitting to such other terms as may be im- posed by the judge for speeding the cause." 108. If the plaintiff, so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, do not file his amendments or amended bill, as the case may require, in the clerk's office, on or before the next succeeding rule day, he will be considered to have abandoned the same, and '' 28th rule United Slates Supreme Court. " 29th rule United States Supreme Court. UNITED STATES CIRCUIT COURTS. 143 the cause will proceed, as if no application for any amendment had been made." EXCEPTIONS TO BILL. 104. Usually, the defendant either pleads, demurs to, or answers the bill. If the bill contain unneces- sary recitals of deeds, documents, &c., in hcec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit, the defendant may file exceptions." When exceptions are filed, the bill may be referred to the master by any judge of the court for impertinence or scandal, and if so found by him, the matter will be expunged at the expense of the plaintifi^, and he will be required to pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master report that the bill is not scan- dalous or impertinent, the plaintiff will be entitled to all costs occasioned by the reference." DEMURRER OR PLEA. 105. If the defendant demur or plead, the plain- tiff' may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue the facts stated in the plea be determined for the defendant, they will avail him, as far as in law and equity they ought to avail him.'° If, upon the hear- ing, any demurrer or plea is overruled, the plaintiff" will be entitled to his costs in the cause up to that '* 30th rule United States Supreme Court. " See 26th rule United States Supreme Court. ^ 26th rule United States Supreme Court. 1' 33d rule United States Supreme Court, 144 PROCEEDINGS AT RULES. period, unless the court shall be satisfied that the defendant had good ground in point of law or fact to interpose the same, and it was not interposed vex- atiously or for delay; and upon the overruling of any plea or demurrer, the defendant will be assigned to answer the bill or so much thereof as is covered by the plea or demurrer the next succeeding rule day, or at such other period as consistently with justice and the rights of the defendant the same can, in the judgment of the court, be reasonably done ; in de- fault whereof, the bill will be taken against him for confessed, and the matter thereof proceeded in, and decreed accordingly." If, upon the hearing, any de- murrer or plea is allowed, the defendant will be en- titled to his costs ; but the court may, in its discre- tion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem rea- sonable.'' 106. If the plaintiff do not reply to any plea, or set down any plea or demurrer for argument, on the rule day when the same is filed, or on the next suc- ceeding rule day, he will be deemed to admit the truth and sufficiency thereof, and his bill will be dis- missed, as of course, unless a j udge of the court shall allow him further time for the purpose." ANSWER SUGGESTING DEFECT OF BILL FOR WANT OF PARTIES. 107. If the defendant by his answer suggest that the bill is defective for want of parties, the plaintifl' " 34th rule United States Supreme Court. 1' 35th rule United States Supreme Court. " 38th rule United States Supreme Court, UNITED STATES CIRCUIT COURTS. 145 will be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down, shall be notified by an entry to be made in the clerk's order book in the form, or to the efPect following (that is to say) : ' " Set down upon the defendant's objection for want of parties ;" and when the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwith- standing an objection for want of parties taken by the answer, he will not, at the hearing of the cause, if the defendant's objection shall then be, allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties ; but the court, if it thinks fit, will be at liberty to dismiss the bill."" INJUNCTION PRAYED FOR TO STAY PROCEEDINGS AT LAW. 108. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance and plead, demur, or an- swer the same within the time prescribed therefor by the rules of practice of the United States Supreme Court, the plaintiff will be entitled, as of course, upon motion without notice, to such injunction." WHEN SUPPLEMENTAL BILL FILED. 109. After leave is given the plaintiff to file a supplemental bill under the 57th rule of the United States Supreme Court — the leave being granted upon '" 52d rule United States Supreme Court. " See 55th rule United States Supreme Court. 19 146 PROCEEDINGS AT EULES. proper cause shown, and due notice to the other party — if the supplemental bill be filed, the defen- dant should demur, plead, or answer thereto, on the next succeeding rule day after it is filed in the clerk's office, unless some other time is assigned by a judge of the court.'' EXCEPTIONS TO ANSWER. 110. After answer filed on any rule day, the plain- tiff is allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insuffi- ciency, and- no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a j udge thereof ; and if no exception be filed thereto within that period, the answer will be deemed and taken to be sufficient."" 111. When the same solicitor is employed for two or more defendants, and separate answers are filed, or other proceedings had by two or more of the de- fendants separately, costs will not be allowed for such separate answers or other proceedings, unless a- mas- ter, upon reference to him, shall certify that such separate answers' and other proceedings were neces- sary or proper, and ought not to have been joined together.'* 112. When exceptions are filed to an answer for insufficiency, within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer on the succeeding rule 2'' See 57tli rule United States Supreme Court. ^ 61st rule United States Supreme Court. »* 6§nd rule United States Supreme Court. UNITED STATES CIRCUIT COURTS. 147 day, the plaintiff is required forthwith to set them down for a liearing on the next succeeding rule day thereafter before a judge of the court; and to enter, as of course, in the order book an order for that pur- pose; if he do not so set down the exceptions for a hearing, they will be deemed abandoned, and the an- swer will be deemed sufficient ; provided, however, that the court, or any judge thereof may, for good cause shown, enlarge the time for filing exceptions, or for answering the same in his discretion upon such terms as he may deem reasonable."* 113. If, at the hearing, the exceptions shall be al- lowed, the defendant will be bound to put in a full and complete answer to the bill on the next succeed- ing rule day; otherwise the plaintiff will, of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a Avrit of attachment to compel the defendant to make a better answer to the matter of the exceptions; and the defendant, when he is in custody upon such writ, will not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and com- plying with such other terms as the court or judge may direct."" If, upon argument, the plaintiff's ex- ceptions to the answer shall be overruled, or the answer adjudged insufficient, the prevailing party will be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions." 25 63d rule United States Supreme Court. ^ 64th rule United States Supreme Court. " 65th rule United States Supreme Court. 148 PROCEEDINGS AT RULES. REPLICATION AND ISSUE. 114. Whenever the answer of the defendant is not excepted to, or is adjudged or deemed sufficient, the plaintiff must file the general replication thereto on or before the next succeeding rule day thereafter; and in all cases where the general replication is filed, the cause will be deemed, to all intents and purposes, at issue, without any rejoinder or other pleading on either side. If the plaintiff omit or refuse to file such replication within the prescribed period, the de- fendant will be entitled to an order, as of course, for a dismissal of the suit; and the suit will thereupon stand dismissed, unless the court, or a judge thereof, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed." 115. The complainant must reply to the answer of every defendant, when sufficient, without reference to the state of the cause or of the pleadings in regard to any other defendant. Coleman v. Martin, 8 Blatch. 291. When a demurrer interposed to the defendant's answer is overruled, and the plaintiff instead of rely- ing upon its sufficiency files a replication, he thereby abandons the demurrer, and it ceases to be a part of the record. Young v. Martin, 8 Wall. 354. 116. Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof for "^ 66th rule United States Supreme Court. UNITED STATES CIRCUIT COUETS. 149 infants or other persons who are under guardianship, or otherwise incapable to sue for themselves; all in- fants and other persons so incapable, may sue by their guardians, if any, or by their prochein ami, sub- ject, however, to such orders as the court may direct for the protection of infants and other persons."" WHAT MAY BE DONE AT RULES OR AT CHAMBERS, &C. 117. The Circuit Courts of the United States, as courts of equity, are deemed always open for the purpose of filing bills, answers, and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other pro- ceedings, preparatory to the hearing of all causes upon their merits."" The clerk's office is required to be open, and the clerk to be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining and disposing of all motions, rules, orders, and other proceedings which are grantable of course, and applied for, or had by the parties or their solicitors in all causes pending in equity, in pursuance of the rules prescribed by the United States Supreme Court." 118. Any judge of the Circuit Court, as well in vacation as in term, may at chambers, or on the rule days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, ^ 87th rule United States Supreme Court. It is suggested in one case that the application for appointment of a guardian ad litem for an infant defen- dant must be made by petition. Hhinelander v. Scmford, 3 Day 279. '" 1st rule United States Supreme Court. " 2d rule United States Supreme Court. 150 PROCEEDINGS AT RULES. preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, unless some other time is as- signed by the judge for the hearing.'' 119. All motions, rules, orders, and other proceed- ings made and directed at chambers, or on rule days at the clerk's office, whether special, or of course, are directed to be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they are made and directed, which book is open at all of- fice hours to the free inspection of the parties in any suit in equity and their solicitors. And, except in cases where personal or other notice is specially re- quired or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order book, touching any and all the matters in the suits, to and in which they are parties and soli- citors. And notice to the solicitors will be deemed notice to the parties for whom they appear, and whom they represent, in all cases where personal notice on the parties is not otherwise specially re- quired. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the Circuit Court may by rule abridge the time for notice of rules, orders, or other proceedings, '^ 3d rule United States Supreme Court. UNITED STATES CIRCUIT COURTS. 151 not requiring personal service on the parties, in their discretion."" 120. All motions and applications in the clerk's oflBce for the issuing of mesne process and final pro- cess to enforce and execute decrees, for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers ; for taking bills pro confesso; for filing exceptions, and for other proceedings in the clerk's office, which do not, by the rules prescribed for the Circuit Courts by the United States Supreme Court, require any allowance or or- der of the Circuit Courts, or of any judge thereof, are deemed motions and applications, grantable, of course, by the clerk of the court. But the same may be suspended, or altered, or rescinded, by any judge of the court upon special cause shown.'* 121. All motions for rules or orders, and other pro- ceedings, which are not grantable of course, or with- out notice, will, unless a different time be assigned by a judge of the court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, . or refused, in his discretion."^ "4th rule United States Supreme Court. " 5th rule United States Supreme Court. '* 6th rule United States Supreme Court. 152 PEOCEEDINGS AT KULES. Form of Subpoena to answer Bill in United States Oircuit Courts^. /Seal or 1 The President of the 1 CouET. f United States of America, ■ — V — ' To A. B. and L. M., greeting: You are hereby commanded that you, and each of you, personally appear before the judges of the Cir- cuit Court of the United States for the dis- trict of Virginia, on the first Monday in next", at the clerk's office of the said court, in the city of Richmond, to answer a bill of complaint -in equity, exhibited against you in the said court by R. R., and to do further, and receive what the said court shall consider in that behalf; and this you are not to omit under the penalty of each. Witness the honorable M. R. Waite, Chief Jus- tice of the Supreme Court of the United States, at the city of Richmond, on the day of , in the year one thousand eight hundred and , and of the independence of the United States of America, the . J. P., Clerk. Memo: — The defendants are required to enter their appearance in the above cause in the clerk's office of this court on or before the first Monday of next, or the bill will be taken ^ro confesso as to them. J. P., Clerk. '" 12th rule United States Supreme Court. See p. 138, ante. " Ibid. TJjSriTED STATES CIRCUIT COUETS. 153 Form of writ of Attachment in United States Circuit Courts'' , — * — , The President of the ("Seal of) United States of America, 1 *^°^^^- j To the Marshal of the ^"^ ' District of , greeting : You M-e hereby commanded that you attach A. B., if he may be found in your district, and bring him forthwith [or, on the day of , in the year 18 ,] personally before the judges of the Cir- cuit Court of the United States for the ^^ dis- trict of Virginia, held at the city of Richmond, at the court room of said court in the said district, to an- swer for certain contempts in not obeying our writ of subpoena to him directed, and on him duly served, commanding him to appear before the said Circuit Court on the day of , &c. [following terms of subpoena], to answer a bill of complaint ex- hibited against him in the said court by C. D. ; and further, to perform and abide such order as our said court shall make in this behalf; and you are further commanded to detain him in your custody until he shall be discharged by the said court. And have you then there this writ. Witness the honorable M. R. Waite, Chief Jus- tice of the Supreme Court of the United States, at the city of Richmond, on the day of , 18 , and in the year of the independence of the United States of America. J. P., Clerk. ^^ See Yth rale United States Supreme Court. To compel an answer, under the 18th and 64th rules United Slates Supreme Court; to compel obedience in other oases, under 7th and 8th rules United States Supreme Court. 20 154 PEOCEEDINGS AT EULES. Form of writ of Sequestration in United States Oircuit Courts'' . J. _ ^ The President of the / Seal op 1 United States of America, I CouET. [ To the Marshal of the " — V — ' District of Virginia,"'5freeting: Whereas A. B., complainant, exhibited his bill of complaint in our Circuit Court of the United States for the district of Virginia, against C. D., de- fendant; and whereas the said C. D. being duly- served with a writ, issuing out of our said court, com- manding him, under the penalty therein mentioned, to appear to and answer the said bill, hath refused so to do ; and thereupon a writ of attachment hath issued from our said court against the said C. D., di- rected to the said marshal; and whereas, on the said writ of attachment,. the said marshal hath returned that the said C. D. could not be found ; and whereas the said C. D. hath of late absconded, and so con- cealed himself, that the said marshal hath not been able to find him, as by the certificate of the said mar- shal appears: Know ye, therefore, that we, in confi- dence of your prudence and fidelity, have given, and by these presents do give, to you full power and au- thority to enter upon all the messuages, lands, tene- ments, and real estate whatsoever of the said C D., ^ See 7th rule United States Supreme Court. ^See 15th rule United States Supreme Court. See Dan. Ch. Pr. (Perk.) 1,064, 1,065; 1 Har. Chan. Prao. 255. The 15th rule United States Supreme Court seems to require that the writ shall be directed to the marshal and not to four sequestrators, according to the English practice. UNITED STATES CIECTJIT COtJETS. 165 and to collect, receive and sequester into your hands not only all the rents and profits of the messuages, lands, tenements and real estate, but also all his goods, chattels and personal estate whatsoever; and, therefore; we command you that you do, at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements and real estate of the said C. D., and that you do collect, take and get into your hands, not only the rents and profits of all his said real estate, but also all his goods, chattels and personal estates, and detain and keep the same under sequestration in your hands until the said C. D. shall fully answer the complain- ant's bill, clear his contempt, and our said court make other order to the contrary. Witness the honorable M. R. Waite, Chief Jus- tice of the Supreme Court of the United States, at the City of Richmond, on the day of , in the year one thousand eight hundred and , and of the independence of the United ' States of America, the . J. P., ClerL Entry in Clerk'' s Order Book of filing the Bill. This day came the plaintiff, B. C, and filed his bill against J. M. and N. 0., and process of sub- poena was awarded against the said J. M. and N. 0. to appear and answer the exigency of the bill on the first Monday in next. Entry of return of Process executed. The process of subpoena awarded against the de- fendants, J, M. and N. 0., returnable to this day, was 156 PROCEEDINGS AT EULES. returned executed; but the said process appearing not to have been executed twenty days before the re- turn day, time is given to the said defendants until the first Monday in next month to enter their ap- pearance. Entry of Defendants' appearance. This day appeared the defendant, J M., by his solicitor, W. J. L., and time is given him until the first Monday in next month to plead, demur, or answer to the plaintiff's bill." And on this day also appeared the defendant, N. 0., and filed a demurrer to the plaintiff's bill; and on the motion of the plain- tiff the said demurrer is set down for argument." Entry taking Bill for confessed. The defendant, J. M., still failing to plead, demur or answer to the plaintiff's bill, on the motion of the plaintiff the said bill is taken for confessed as to the said defendant. Entry on filing Plea when Plaintiff replies, &g. The defendant, R. R., this day appeared by his solicitor, M. M., and filed his plea to the bill of the plaintiff, and the plaintiff took issue on the said plea (or, the plaintiff' set down the said flea to be argued)^ Entry on filing Plea, Plaintiff' not replying, &c. The defendant, R. R., this day appeared by his *' 18th rule United States Supreme Court, p. 140. *2 33d rule United States Supreme Court, p. 143. « 33(1 rule United States Supreme Court, p. 143, ante. UNITED STATES CIECUIT COURTS. 157 solicitor, N. M., and filed his plea to the bill of the plaintiff, and time is given to the said plaintiff until the first Monday in next month to reply to the said plea, or set down the same for argument, Entry dismissing Bill, Plaintiff not replying to Plea, c&c.*' The plaintiff still failing to reply to the defen- dant's plea, filed at the last rules, and failing to set down the same for argument, it is ordered that the bill of the said plaintiff be dismissed. Entry of filing Answer and Beflication. This day appeared the defendant, C. C, and filed his answer, and the plaintiff replied generally to the said answer. Entry of filing Answer and Exceptions. This day appeared the defendant, C. C, and filed his answer, and the plaintiff filed exceptions to the said answer,*" and time is given to the said defendant until the first Monday in next month to file an amended answer.* Entry if Defendant fails to file amended Answer after exceptions.'' The defendant having heretofore answered the bill of the plaintiff, and the plaintiff having filed excep- tions thereto, and the defendant still failing to file an "38tli rule United States Supreme Court, ante, p. 141 ^ 61st rule United States Supreme Court, ante, p. 146. The plaintiff may file exceptions to answer the rule day succeeding that on which answer is filed. *= 63d rule United States Supreme Court, ante, pp. 146, 147. « 63d rule United States Supreme Court, ante, p. 147. 158 PROCEEDINGS AT RULES. amended answer, it is ordered that the said excep- tions to the said answer be set down for hearing at the next rules before a judge of this court. Entry on filing Answer, and Plaintiff asks leave to amend his Bill." This day appeared the defendant, C. C, and filed his answer, and the plaintiff not having replied to the said answer, moved for leave to amend his bill; and, thereupon, the judge of this court ordered that the plaintiff should have leave to amend his bill on the payment by the said plaintiff' to the defendant of his costs up .to this time,'^ provided such amended bill is filed on or before the first Monday in next month. If replication has been filed, the leave to amend will not be granted, unless on the notice and the affi- davit provided for in the 29th rule of the United States Supreme Court, ante, p. 142. Entry when Bill amended after Answer filedT The plaintiff this day, in pursuance of leave granted him at the last rules, filed his amended bill against the defendant, C. M., and time is given the said C. M. until the next rules" to put in a new or supple- mental answer to the said bill. The Defendant failing to file Answer to amended Bill, same taken for confessed as to him.^^ The defendant, C. M., not having put in a new or ^ 29th rule United States Supreme Court, p. 142, ante. *' With or without costs, as the judge may, in his discretion, direct. ^''46th rule United States Supreme Court. ^1 The time may be enlarged. Ibid. 5* 46th rule United States Supreme Court. UNITED STATES CIRCUIT COURTS. 159 supplemental answer to the amended bill of the plaintiif, as required by the entry herein at the rules, it is ordered that the said amended bill be taken for confessed as to the said defendant. Entry awarding injunction, Defendant not entering his ap-pearance, dc." The plaintiff having heretofore filed his bill pray- ing for an injunction to stay proceedings at law in the, &c. [here state it], and the process of subpoena in this cause, returnable to this day, having been executed on the said defendant twenty days before this day, and the said defendant still failing to ap- pear and plead, demur or answer the said bill, it is ordered that an injunction be awarded to enjoin and restrain the said defendant from further proceeding, &c. Entry filing Bill of Revivor and awarding Process.^ This day came the plaintiff, and Z. Z., one of the defendants in this suit, having departed this life, the said plaintiff filed his bill of revivor against M. M., executor of the last will and testament of the said \ Z. Z. ; and process of subpoena on the said bill is awarded against the said M. M., executor as afore- said, returnable to the first Monday in next month, requiring him to appear and show cause, if any he has, why this cause should not be revived. Entry reviving Suit after Bill of Revivor filed, &c. The process of subpoena awarded on the plaintiff's 55 55th rule United States Supreme Court, ante, p. 145. w 56th rule United States Supreme Court. 160 PEOCEEDINGS AT BITLES. bill of revivor against M. M., executor of the last will and testament of Z. Z., deceased, returnable to this day, having been returned executed on him, and it appearing that the said process was executed on the said M. M. fourteen days before this day, it is ordered that this suit stand revived against the said M. M., executor of the last will and testament of the said Z. Z., deceased. Entry taking Bill for confessed after exceptions to An- swer sustained, Defendant not answering!^ The exception of the plaintiff to the answer of J. J , heretofore filed, having been sustained by a judge of this court, and the defendant still failing"' to file a full and complete answer to the said bill, it is or- dered that the said bill be taken for confessed [or, so far as the matter of such exception is concernedj. Entry awarding an Attachment to compel an Answer. The defendant, X. X., not having answered the bill of the plaintiff, although process has been duly served upon him more than twenty days before this day {or, the answer of the defendant, X. X., hereto- fore filed to the bill of the plaintiff having been ex- cepted to by the plaintiff, and the said exception hav- ing been sustained, and the defendant still failing to file a full and complete answer to the bill of the plain- tiff) , on the motion of the said plaintiff, it is ordered that a writ of attachment be awarded against the said defendant to make answer (or, in the case of ex- ^^Tbat is, the rule day next succeeding the allowance of the exception. 64th rule United Stales Supreme Court, ante, p. 147. DEFENCE TO SUITS IN EQUITY. 161 ceptions sustained, a better answer in the matter of ex- ceptions) to tlie bill of the plaintiff, returnable to the first Monday in next month. O HE A. r> T E R V^ I I I Of Defences to Suits in Equity, Demurrers, Pleas, An- swers and Disclaimers. 122. As we have already seen, the appearance of the defendant is either voluntary or compulsory; voluntary, when the defendant comes in of his own accord before the writ has been served upon him, or after such service, and before process of contempt has been sued out against him; compulsory, when he is compelled to appear by the process of contempt, «fec. 123. By the eighteenth rule of the Supreme Court of the United States, prescribing the mode of prac- tice in the United States Circuit Courts, previously cited,' and by the statutes of Virginia governing the practice in the Virginia State Courts," a party defen- dant appearing under compulsion, is debarred privi- leges which he would enjoy if his appearance were voluntary. In the United States Circuit Courts a de- fendant, arrested upon process of attachment, will not be discharged from arrest unless he file his answer, or otherwise comply with such order as the court or 1 See page 140, ante. ' Code, 1873, chap. 167, § 47. 21 162 DEFENCE TO SUITS IN EQUITY. a judge thereof may direct as to pleading to, or fully answering the bill within a period to be' fixed by the court or judge, and undertake to speed the cause/ In the Virginia State Courts, no plea or demurrer will be received of a defendant who has been brought in by attachment against him, unless by order of court upon motion/ 124. When, however, the defendant's appearance is voluntary, he may adopt either of these several de- fences / 1. By demurrer, which admitting the matters of fact alleged by the bill to be true, shows that, as they are therein set forth, they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer." 2. By plea, when the cause or some part of it may by denial or avoidance be stayed, or dis- charged by matter foreign to the record, by which it will be reduced to a single point.' 3. By answer, which controverting the case made by the plaintiff, confesses and avoids, or traverses and denies the several parts of the bill: or, admitting the case made by the bill, submits to the judgment of the court upon it, or upon a new case made by the answer, or both ;' or, 4. By disclaimer, which at once terminates the suit, the defendant disclaiming all right in the matter sought by the bill. These several modes of 2 18th rule United States Supreme Court, p. 140, ante. *Code, 1873, chap. 167, §47. ^The case of exceptions to the bill for impertinence, &c., has been mentioned before. ' See § 104, ante. « Mitf. PI. 106, 108. ' Mitf. PI. 219. sMitf. PI. 106. Ch. Taylor in Harris vs. Thomas, 1 H. & M. 18 ; Alderson vs. Biggars & als., 4 H. & M, 473. DEMUEEER. 163 defence, or any of them, may be used together, in the United States Circuit Courts if applied to separate and distinct parts of the bill ;° in the Virginia State Courts they may be used together, though applied to the same parts of the bill." I. DEMUREEE. General nature of Demurrers. 12b. Whenever any ground of defence is apparent upon the bill itself, either from the matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer." The principal ends of a demurrer are, to avoid a discovery which may be prejudicial to the defendant, or to cover a defective title, or to prevent an unne- cessary expense. If no one of these ends is ob- tained, there is little use in a demurrer." 126. A demurrer is, in substance, an allegation by a defendant, which, admitting the matters of fact stated in the bill to be true, shows that as they are therein set forth, they are insufficient for the plaintiff ' See 32d rule United States Supreme Court. ^^ Bassetfs adm'or, &c. vs. Ounningham's adm'or, 7 Leigh 402. In this case the Supreme Court of Appeals of Virginia decided that a defendant might demur and answer to the same matter in the bill. If the principle of the case be carried out to its legitimate extent, a defendant in the Virginia State Courts may plead and demur, or plead and answer, or demur and plead and answer to the same matter of a bill at the same time. The decision is based upon the statute of Virginia, declaring that in all actions at law the defen- dant may plead as many several matters, whether of law or fact, as he shall think necessary for his defence. (See the statute. Code 1873, chap. 167, § 24.) The court thought that this rule ought by analogy to be extended to the pro- ceedings in courts of equity. Judge Tucker dissented from this opinion. " Mitf. PI. 107. 164 DEFENCE TO SUITS IN EQUITY. to proceed upon, or to oblige the defendant to an- swer;" or that for some reason apparent on the face of the bill, or because of the omission of some mat- ter which ought to be contained in it, or for want of some circumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer. It therefore demands judgment of the court whether the defendant shall be compelled to answer the plaintiff's bill, or that particular part of it to which the demurrer applies." Thus a defendant may demur to a bill calling on him to answer any matter which may" subject him to fine, forfeiture, pains or penalties.'' 127. A demurrer admits as true the matters of fact stated in the bill, or in that part thereof to which defendant demurs." But while a demurrer confesses the matters stated in the bill to be true, the confes- sion is confined to those matters, which are well pleaded, i. e., to matters of fact:" it does not admit " Prac. Reg. 162. i' Mitf. PI. 108. "1 Dan. Chan. Prao. 590, Story's Eq. PI., § 575. '^ 1 Dan. Chan. Prao. 589. Young vs. Scott. 4 Rand. 416. But where the forfeiture or penalty is entirely in the power of the plaintiff, if in his bill he waives it, the defendant cannot demur, but must answer. Ibid 416, 419, 1 Dan. Chan. Prao. (Perk.) 589. See Noi-thwestem Bank vs. Nelson, 1 Grat. 113, a case in which it was not in the power of the plaintiff to protect the defendant from penalties, &c. See Story's Eq. PI., § 575. 1* The rule mentioned in the text has been carried to this extent. A bill misstated a deed by alleging it to contain a proviso which it did not. On argument of a demurrer to this bill. Lord Cottenham refused to allow the de- fendant's counsel to refer to the deed itself, for the purpose of showing the in- correctness of the manner in which it was set out, although the bill contained a reference for " greater certainty as to its contents," Ac, to the deed, as being in the custody of the defendants. Campbell vs. Mackay, 1 M. & Craig 603, 613. See Pryor vs. Adams, I Call 391. " Ford vs. Peering, 1 Ves. Jr. 72, 78, See note on p. 78, Sumner's edition. Commercial Bank of Manchester vs. Buckner, 20 How. 108. DEMUREEE. 166 matters of law, which are suggested in the bill or in- ferred from the facts stated; for, strictly speaking, arguments or inferences, or matters of law, ought not to be stated in pleading;" nor will the court have any regard to facts averred in a bill which has been de- murred to, when they are contrary to any fact of which the court takes judicial notice.^" 128. A demurrer may be to the whole bill, or to some part of it. It may be either to the relief prayed, or it may be to the discovery only, or to both, or to only a part of one or of both."" If it be to the whole relief, the English rule is, that it neces- sarily extended to the discovery." Mr. .Justice Story asserts that the American rule is different, and cites in support of his view Laight vs. Morgan, 2 Cain. Cas. in Err. 344; Higginhotham vs. Burnet, 5 John. Ch. 184; Brownell vs. Curtis, 10 Yaige 210; Livingston ys. Story, 9 Peters 632, 658. In the last cited case, Mr. Justice Thompson said that it was an established and universal rule of pleading in chancery, that a defen- dant might meet a complainant's bill by several modes of defence; that he might demur, answer and plead to different parts of a bill ; so that if a bill for discovery and relief contained proper matter for the one and not for the other, the defendant should answer the proper, and demur to the improper mat- " 1 Dan. Ch. Pr. (Perkins) 567. i» 1 Dan. Chan. Prao. (Perkins) 568, 569. ™ Wiien the demurrer does not go to the whole bill, it should clearly ex- press the particular part which it is designed to cover. Jarvis vs. JPalmer, 11 Paige 650 ; Clancy vs. Craine, 2 Dev. Eq. 363 ; Sto. Eq. PI., § 458, and notes. 21 Morris vs. Morgan, 10 Sim. 341 ; Frice vs. James, 2 Bro. Ch. 319 ; and other cases cited in Story's Eq. PI., | 312, n. 166 DEFENCE TO SUITS IN EQUITY. ter, but that if he demurred to the whole bill, Ihe demurrer must be overruled."" 129. Care should be taken that the demurrer is not too general ; that is, that it do not cover, or is not applied to the whole bill, when it is good to a part only, for if not good to the full extent which it covers, but is so only to a part, it will be overruled."' And so the doctrine was formerly, that if a demurrer did not cover so much of the bill as it might by law have extended to, it was held to be bad;"* but this has been changed, in England by the 36th of the Orders of the English Court of Chancery and in the United States Courts by the 36th rule of practice."" Form of Demurrers. 130. Demurrers may be simply on the ground that there is no equity, or the particular defects and ob- jections may be pointed out. The former will be suf- ficient when the bill is defective in substance. The latter is indispensable when the objection is to the defect of the bill in point of form."° 131. Demurrers, for want of form in the bill, will be sustained in the United States Circuit Courts; and *' But it was decided in Mitchell vs. Oreen, 10 Melo. 101, that if a bill of discovery also sought relief, which the court had no power to grant, the de- fendant might demur to the whole bill, and the demurrer would be sustained, unless the bill averred that a suit at law was pending, or was about to be brought, in which a discovery was material. 2s Cooper's Sq. PI. 112, 113 ; Mitf. Eq. PI. by Jeremy 214, n. (i) ; Story's Eq. PI., ? 443. ^ Dawson vs. Sadler, 1 Sim. & Stu. 537, 542 ; 1 Cond. Eng. Ch. Rep. 277. In that case, the Vice Chancellor said he was disposed to give the defendants leave to amend their demurrers and answers, by making them general demur- rers to the whole bijl. "^ Post, p. 172, section 139. ^ Story's Eq, PI., ^ 455. DEMUEEEE, 167 it has never been questioned in the Virginia State Courts that demurrers for multifariousness, or for want of parties, or for want of jurisdiction as well as for want of equity, are proper. 132. The principle of a defence by demurrer is, that on the plaintiff's own showing his claim is bad. It is applicable to any defence which can be made out from the allegations in the bill, but the most ordinary grounds of demurrer are want of jurisdic- tion, want of equity, multifariousness, and want of parties," • 133. The frame of a demurrer is very simple, and after the formal commencement runs thus : " This defendant doth demur in law to the said bill, and for cause of demurrer showeth that it appears by the said bill, that," &c., stating in the regular form on what class of objection the defendant relies, or, if there be more than one ground of objection, stating each ground successively with the prefatory words; " and for further cause of demurrer showeth," &c. ; and concluding with the words, " wherefore, and for divers other good causes of demurrer, appearing in the said bill, this defendant doth demur to the said bill, and prays the judgment of this honorable court whether he shall be compelled to make any other or further answer thereto; and he humbly prays to be hence dismissed with his reasonable costs in this be- half sustained. """ 134. The assertion of a demurrer is, that the plaintiff has not, on his own showing, made out a case, and if that position can be established on any " Adams' Eq. 333. 2« Adams' Ec^. 333. 168 DEFENCE TO SIJITS IN EQUITY. ground, though not a ground of objection stated in the demurrer, it is good." 135. It should specially be noticed, that a demur- rer in the United States Circuit Courts should be accompanied by a certificate of counsel that, in his opinion, it is well founded in point of law, and sup- ported by the affidavit of the defendant that it is not interposed for delay °° 136. The following is the form of a general de- murrer for want of equity : In the Circuit Court of the county of : The demurrer of D. D., J. D. and S. K., three of the defendants to the bill of complaint of S. S., complainant : T4iese defendants, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill contained to be true in such manner and form as the same are therein and thereby set forth and alleged, do demur to the said bill, and for cause of demurrer show that the said complainant has not by his said bill made such a case as entitles him in a court of equity to any discovery from these defendants respectively, or any of them, or to any relief against them as to the mat- ters contained in the said bill, or any of such mat- ters; and that any discovery which can be made by ^'Adams' Eq. 334. Some authorities are cited, to establish that when the demurrer is sustained on a ground different from that mentioned in the de- murrer, costs will not be given. Mitf. 217, Willesley va.lWilksley, 4 M. & C. 554 ; 1 Dan. Chan. Prao. 539, 545. "• 31st rule United States Supreme Court. DEMUEBEE. 169 these defendants, or any of them, touching the mat- ters complained of in the said bill, or any of them, cannot be of any avail to the said complainant for any of the purposes for which a discovery is sought against these defendants by the said bill, nor entitle the said complainant to any relief in this court touching any of the matters therein complained of: wherefore, and for divers other good causes of de- murrer appearing in the said bill, these defendants do demur thereto, and they pray the judgment of this honorable court whether they, or either of them, shall be compelled to make any further or other an- swer to the said bill; and they humbly pray to be hence dismissed with their reasonable costs in this behalf sustained." A. M., p. d. 137, The following is the form of a demurrer to so much of a bill as sought a discovery of title deeds, for want of proper affidavit : In the Circuit Court of the county of : The demurrer, &c., (as in preceding form.) These defendants, by protestation, not confessing or acknowledging, &c. (as in preceding form to word alleged), as to so much of the said bill as seeks a dis- covery of the marriage settlement of , the late father and mother of the said complainant, and of the title deeds and writings relating to the mes- '' If in the United States Circuit Courts, the demurrer should be entitled of the proper court, and an affidavit of the party and certificate of counsel be an- nexed to the demurrer, as required by the Slst rule United States Supreme Court. See § 139, post. ■ 2i 170 DEFENCE TO SUITS IN EQUITY. suages, lands and tenements in the said bill men- tioned, and that the same may be delivered up to the said complainant, do demur in law, and for cause of demurrer show that no person or per- sons, by the ancient and approved rule of this honorable court, shall exhibit a bill of complaint in this honorable court against any other person or persons for a discovery of deeds and writings belong- ing to such complainant, and upon which, if in his possession, he might have remedy at law, and pray relief relating thereto, unless such complainant or complainants shall, at the time of exhibiting such bill, make afl&davit that he, she or they, have not such deeds and writings so sought after in his, her, or their custody or power: wherefore, and for that, he, said complainant, hath not made affidavit of not having the deeds or writings in his custody or power so sought after by the said bill, these defendants do demur to such part of the bill as aforesaid, and hum- bly pray the judgment of this court whether they shall be compelled to make any farther or other an- swer to such part of the said bill as is so demurred to/^ A. M., p. d. 138. Care should be taken in framing a demurrer, that it be made to rely upon the facts stated in the bill, otherwise it will be what is called a sjpeaking demurrer, and will be overruled.'' In order to con- stitute a speaking demurrer, however, the fact or averment introduced must be one which is necessary to support the demurrer, and is not found in the bill. "^ See note 31, at p. 169, ante. »s J Dan. Ch. Pr. (Perk.) 612, 613, Brownmord vs. Edwards, 2 Ves, 245. DEMURRER. 171 The introduction of immaterial facts, or averments, or of arguments, is improper; but it is mere surplus- age, and will not vitiate the demurrer.'* 139. The special rules prescribed by the United States Supreme Court for the practice in United States Circuit Courts, in relation to demurrers and pleas, are as follows : 31. No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel that, in his opinion, it is well founded in point of law, and supported by the afiidavit of the defendant that it is not interposed for delay: and, if a plea, that it is true in point of fact. 32. The defendant may, at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud or combination, a plea to such part must be accompanied with an an- swer fortifying the plea, and explicitly denying the fraud and combination, and the facts on which the charge is founded. 33. The plaintiif may set down the demurrer or plea to be argued, or he may take issue on the plea. If upon an issue the facts stated in the plea be deter- mined for the defendant, they shall avail him, as far as in law and equity they ought to avail him. 34. If, upon the hearing, any demurrer or plea is overruled, the plaintiif shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defendant had good ground, in point of law or fact, to interpose the same, and it ^ 1 Dan. Ch. Pr. (Perk.) 613, Oawihorn vs. Chalie, 2 S. & S. 127; Daviet vs. Williams, 1 Sim. 5. 172 DEFENCE TO SUITS IN EQUITY. was not interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule day, or at such other period as, consistently with justice and the rights of the de- fendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill shall be taken against him, pro confesso, and the matter thereof proceeded in and decreed accordingly. 35. If, upon the hearing, any demurrer or plea shall be allowed, the defendant shall be entitled to his costs. But the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. 36. No demurrer or plea shall be held bad and overruled upon argument, only because such demur- rer or plea shall not cover so much of the bill as it might by law have extended to. 37. No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter, as may be covered by such demurrer or plea. 38. If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day, when the same is filed, or on the next suc- ceeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dis- missed, as of course, unless a judge of the court shall allow him further time for the purpose. 140. As regards the Virginia State Courts, the pro- visions of the statute. Code 1873, cited in section 71, on pages 111, 112, ante, need to be noticed. Demurrers to Original Bills for relief. 141. The principal grounds of objection to the re- DEMUEEER. 173 lief sought by an original bill, which can appear on the bill itself, and may therefore be taken advantage of by demurrer, are these: 1. That the subject of the suit is not within the jurisdiction of a court of equity. 2. That the plaintiff is not entitled to sue by reason of some personal disability. 3. That the plaintiff has no interest in the subject, or no title to institute a suit concerning it."' 4. That the plaintiff has no right to call on the defendant concerning the subject of the suit. 5. That the defendant has not that interest in the subject which can make him liable to the claims of the plaintiff. 6. That for some reason, found(3d on the substance of the case, the plaintiff is not entitled to the relief he prays. To these may be added, 7. The deficiency of the bill to answer the purpose of complete justice, as, for instance, the want of proper parties. 8. The impropriety of confounding distinct subjects in the same bill, or of unnecessarily multi- plying suits'"; and 9. In the United States Circuit '5 See Morrison's ex'ors vs. Orubb, 23 Grat. 342. 2«Mitf. PI. 110; 1 Dan. Ch. Pr. (Perkins) 581. A demurrer will lie for joining a plaintiff not interested^ 2 R. P. 274 ; Cuff vs. flateit, 4 Russ. 242 ; 2 Cond. Eng. Ch. R. 651. The King of Spain & ah. vs. Machado & ah., 4 Russ. 225 ; 2 Cond. Eng. Ch. R. 643 [but in Olai kson & wife v. De Peyster, <&c., 3 Paige 336, the wife was properly joined, though not interested in one part of the complainant's case]. In a bill by a creditor to enforce an assignment by the debtor for the payment of particular debts, the general creditors of the assignor should not be joined as plaintiffs. Bias vs. Bouchaud, 10 Paige 445. And for making improper defendants. Brinkerhoff, &c. v. Brown, dc, 6 John. Ch. E. 139 [though such demurrers should be cautiously allowed]. And for omitting proper partiss. Hobinson, &c. vs. Smith, &c., 3 Paige 222 [on the question of omitting proper parties, see Munford, &c. vs. Murray, 6 John. Ch. R. 11 ; 2 R. P. 276 ; Taylor's adm'or vs. SpindU, 2 Grat. 45 ; Harding vs. Handy, 11 Wheat. 133 ; Marshall vs. Beverley, 5 Wheat. 313 ; Conn, &c. vs. Penn, 5 Wheat. 424]. And for asserting distinct rights. Berkley, &c. v. Presgrave, 1 East 227 ; 174 DEFENCE TO SUITS IN EQUITY. Courts, that the citizenship of the parties does not appear on the face of the bill." Demurrers to Original Bills for discovery. 142. The principal objections to a bill, which are causes of demurrer to a discovery, are these: 1. That the case made by the bill is not such in which a court of equity assumes a jurisdiction to compel disco- very.'' 2. That the plaintiff has no interest in the subject or not such an interest as will entitle him to call on the defendant for a discovery.™ 3. That the Harrison vs. Hogg, 2 Ves., Jr., 323 ; Davoue vs. Farming, 4 John. Ch. E. 199; Johnson vs. Johnson, 6 John. Ch. K. 163 ; Shirley vs. Long, &c., 6 Band. 764 ; Stuart's heirs, &c. vs. Coalter, 4 Rand. 74 ; Ward, &c. v. Duke of Northumber- land, &c., 2 Anstr. 469; Dilly v. Loig, 2 Ve9., Ji'., 486; Attorney General vs. Corp. of Carmarthen, Cooper's Ch. E. 30 ; Whaley vs. Dawson, 2 Sch. & Lef. 367. And for calling on defendant to answer any matter which may subject him to fine, forfeiture, pains or penalties. Young vs. Scott, &c., 4 Eand. 416; Northwestern Bank vs. Nelson. 1 Grat. 113; 2 B. P. 43, 300. See note to sec- tion 126, on p 164, ante. And to a bill for specific execution, if the agreement, as stated in the bill, appears to be a parol agreement only, and no sufficient grounds are alleged to take the case out of the statute. Cozine vs. Oraham, die., 2 Paige 177. And if the plaintiff from his own showing has a complete remedy at law, and sets up no particular title to the aid of the court.' I.,ynch vs. Willard, 6 John. Ch. E. 342. [Whether lapse of time can only be taken advantage of by plea or answer, see McDowl vs. Charles, 6 Johnson's Chancery Reports 132; Livingston's ex'ors vs. Livingston, 4 John. Ch. R. 299,] and 1 Dan. Ch. Pr. (Perkins) 584, 585, 586, and notes, and Story's Eq. PL, | 503, and cases cited. Where there is no such positive limitation of time as comes within the Statute of Limita- tions, or the rules of the court which have been adopted by analogy to that statute, the question whether the court will interfere or not, depends upon whether from the facts of the case the court will infer acquiescence, or confir- mation, or a release; such inference is an inference of fact, and not an infer- ence of law, and cannot be raised on demurrer. Cuthbert vs. Creasy, Mad. & Geld. 189 ; Ld. Baym. 213, cited 1 Dan. Ch. Pr. (Perkins), p. 587. " Dodge vs. Perkins, 4 Mason 435; Story's Eq. PI., 492. 88 Story's Eq. PL, ? 319, 321. 3» Story's Eq. PL, I 318. DEMURRER. 175 defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery.*" 4. That although both plain- tiff and defendant may have an interest in the sub- ject, yet that there is not that privity of title between them which gives the plaintiff a right to the dis- covery required by his bill." 5. That the discovery, if obtained, will not be material." 6. That the situ- ation of the defendant renders it improper for a court of equity to compel a discovery;'' and 7. That the bill is a mere fishing bill." PRACTICAL NOTE TO SECTION 142. 1st. That the case is not such as that a court of equity assumes jurisdiction to compel discovery. Story's Eq. PL, § 319, 321, 257 a, 322. Judge Btory denies the doctrine, that if the bill is for dis- covery only, it is necessary to aver that the party cannot otherwise establish his defence at law. Story's Eq. PL. § 319, n. 3; Hare on Dis. 1, 110 ; Mitf. Eq. PL by Jeremy 307 : Earl of Glmgall ys. Frazer, 2 Hare 99, 105; 24 Gond. Eng. Oh. E. 99 ; Fech vs. Ashley, 12 Metcalf 478. But if the bill is brought before any action, it is usual to aver in the bill that the discovery of the facts is necessary to enable the party to commence his suit right. Moodelay vs. Mor- ton, 1 Bro. Oh. 470, 471. See Hare on Dis. 51, 110 ; see Gregory vs. Maries, 1 Eand. 355 ; Ranhin vs. Bradford, 1 Leigh 163 ; » Story's Eq. PI., I 323. « Story's Eq. PI., ? 324, ? 571. « Story's Eq. PL, § 324 a. *3 Story's Eq. PL, \ 325, and Newhirh vs. Willet, 2 Cain. Gas. in Err. 296; Frietas vs. Don Santos, 1 Y. & Jerv. 557. "Mitf. PL 185; Story's Eq. PL, 575, el seq. 599, 603. See note to section 141, ante, p. 173. The proper object of a demurrer is to prevent the necessity of a discovery, or to save the expense of a protracted litigation by settling the rights of the parties upon some dry point of law plainly arising upon the case made by the bill. Walworth, Ch., in Western Ins. Co. vs. Eagle Fire Ins. Co., 1 Paige 284. See Harris vs. Thomas, 1 H. & M. 18 ; Alderton vs. Biggars, 4 H. & M. 473. 176 DEFENCE TO SUITS IN EQUITY. Harding's ex' or vs. Hardin, 2 Leigh 572; Duvals vs. Boss, 2 Munf. 291. See also Meze vs. Mayse, 6 Rand. 658 ; Jones vs. Bradshaw, 16 Grat. 355 ; Webster vs. Couch, 6 Rand. 519 ; ^aZe (^ a^. vs. Clarhson c£ als., 23 Grat. 42. As to the doctrine denied by Judge Story, Duvals vs. Boss, 2 Munf. 290, and Bass vs. 5a«s, 4 H. & M. 478, are sometimes cited as authorities for the position . he denies ; but see these cases. Sometimes, the time at which the bill is filed will prejudice the claim of the plaintiff. This seems to have been the ground of the decision in Duvals vs. Boss, 2 Munf. 290. The bill must be filed as soon as the party discovers the ne- cessity of appealing to the conscience of the adversary. Equity will not suffer him to spin out litigation, take the chance of a jury, and, failing there, file his bill for a discovery. See Faulknei-'s adm'x vs. Harwood, 6 Rand . 129 ; Norris vs. Hume, 2 Leigh 336 ; Baker vs. Morris, 10 Leigh 284. 2nd. That the plaintiff has no interest in the subject, or not such an interest as will entitle him to call on the defendant for a discovery. 1 Dan. Ch. Prac. (Perkins) 323, 581 ; Story's Eq. PI., § 318 ; Mitf. Eq. PI. by Jeremy, 154-7, 187 ; Morrisons ex'ors vs. Ghrubb, 23 Grat. 342. 3d. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of dis- covery. 1 Dan. Oh, Pr. (Perkins) 589, 596, 597, 598, 599, 134, 135; Story's Eq. PL, § 323. A mere witness cannot be made a party de- fendant. Wych vs. Meal, 3 P. Wms. 310 ; but there is an excep- tion to this rule : officers of a corporation may be made parties to a bill of discovery, lor the purpose of enabling the defendant to obtain a knowledge of facts which could not be ascertained by the answer of the corporation, put in under their corporate seal, and without oath ;''^ Yermilyia vs. Fulton Bank, do., 1 Paige 37 ; and the reasons for the exception apply as well to the former as to the pre.sent officers of the corporation, when the knowledge of the facts, of which the discovery is sought, rests only with such officers, and especially when it relates to their own official acts. Fulton Bank vs. Bharon Canal Company, <£c., 1 Paige 219. 4th. That although both plaintiff and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the plaintiff a right to the discovery required by his bill. 1 Dan. Oh. Pr. (Perkins) 331, 605, 606, and notes ; Story's Eq. PL, § 324, 571. 5th. That the discoveiy if obtained will not be material. Story's Eq. PL, § 324 a; 1 Dan. Oh. Pr. (Perk.) 598. 6th. That the situation of the defendant renders it improper for a court of equity to compel a discovery. Story's Eq. PL 575, 599, 603; Mitf. PL 185; 1 Dan. Oh. Pr. (Perk.) 589, 596, 598, 599. 7th. That the bill is a mere fishing bill. Story's Eq. PL 325. « 1 Dan. Ch. Pr. (Perk.) 135, »ote 3. DEMUEREE. 177 143. In the Northwestern Bank vs. Nelson, 1 Grat. 108, the court held, that where the bill seeks a dis- covery of matters which will expose the defendant to pains, penalties or punishment, or to a criminal prose- cution, the defendant may demur;" and that it is not necessary that it should be made to appear that the defendant will be certainly exposed to peril by ma- king the discovery sought; it is enough if it appear that, by answering the interrogatories of the bill, he will thereby be probably subjected to danger." 144. A defendant does not forego any advantage as to the merits by not demurring; he may insist by answer on those matters which he might have insisted on by demurrer; and if he should even omit them in the answer, he may still avail himself of them in "iSee § 141, ante, p. 173, note. " Note to I 126. U. 8. vs. Saline Bank, 1 Pet. E. 100 ; Harrison vs. South- cote, 1 Atk. 539. In N. W. Bk. vs. Nelson, 1 Grat. 108, the objection not ap- pearing on the face of the bill, the demurrer was overruled, but the defendant was authorized to claim the same protection by plea or answer, and having made an answer claiming the protection, the answer was held sufficient. See Story's Eq. PI., ?§ 575-598, ?? 524, 525, and notes; 1 Dan. Ch. Pr. (Perkins) 589 et seq., as to the cases embraced in this rule. It protects him from answer- ing any question which may form a link in the chain to criminate him. Story's Eq. PI., J 577, 591 ; also from a discovery which may have a tendency to sub- ject him to a penalty or forfeiture. Ibid, ^ 579. [As to usury, see Code 1873, ch. 137, ?J 9-12 ] But a defendant may by contract expressly preclude him- self from the objection, so far as respects a penalty or forfeiture, but not so far as respects the discovery of a crime. Story's Eq. PI., § 589, 521, 577 ; Oreen vs. Weaver, 1 Sim. 404. A married woman may demur to a dis- covery which would subject her husband to a criminal prosecution. Oart- wright vs. Oreen, 8 Ves. 405. The doctrine which formerly obtained that a demurrer would lie to any discovery which may tend to show the .defendant to be guilty of any moral turpitude, e. g., the birth of a child born out of wedlock, has been overturned, and it is now held that the defen- dant may be compelled to make a discovery of any act of moral turpitude, which does not amount to a public offence or an indictable crime. Hare on Discov. 142 ; Chetwynd vs. Lindon, 2 Ves. 451 ; Story's B(j. PI., I 595, 596. 23 178 DEFENCE TO SUITS IN EQUITY. argument at the final hearing of the cause." Benson, J., in Leroy, &g. v. Veeder, &c., 1 Johns. Cas. 428. And at the hearing, though there be no demurrer, many objections which the defendant might have relied on by demurrer may be availed of. Harris vs. Thomas, 1 H. & M. 18 ; Alderson v. Biggars, &c., 4 H. & M. 473; BandolpVs adm!x vs. Kinney, &g., 3 Rand. 2>^'^\%Stuar'Cs heirs, &g. vs. Coalter, 4 Rand. 78; Hickman vs. Stout, 2 Leigh 6. It was a question much discussed in Ambler, &g. vs. Warwick & Co., 1 Leigh 211, whether if the bill did not show a cause for the jurisdiction of the court, and the defendant answered without demurring, and other matter sub- sequently appeared in the cause, showing that the case was of such a character as to give the court ju- risdiction, the defendant could insist at the hearing on the objection to the jurisdiction appearing on the face of the bill. Brooke, P., held that he might. The other judges decided to take jurisdiction in the case. Green, J., said: "Upon the fair construction of the act (1 R. C. 1819, p. 214, § 86, and p. 256, § 52), I think it may be said that if the bill do not present a case for the jurisdiction of the court, and other matters appear in the progress of the cause, which supplies the defect, the defendant not having ^ The remark in the text must not be construed as embracing the defence of the Statute of Limitations. It has been held, in several cases, that if the defendant wish to avail himself of the statute, and it be not pleaded in form, it should at least be insisted upon as a defence in the pleadings. Hudsons vs. Hudson's adm'or, &o., 6 Munf. 352 ; Hickman vs. Stout, 2 Leigh 6, Where, however, slaves were the subject of controversy, a party, without pleading the Statute of Limitations, was permitted to show that a title had accrued in his favor by an actual adverse possession of them for more than five years. Mu^sons vs. Hudson's adm'or, cfec, 6 Munf. 352, DEMUERER. 179 demurred to the bill, cannot object to the jurisdiction at the hearing ; as if the bill was for an account, with- out showing that the accounts were of such a charac- ter as to give jurisdiction, and that appeared from the answer and proof." The statute alluded to pro- vided, that after answer filed, and no plea in abate- ment to the jurisdiction, no exception for want of jurisdiction should ever afterwards be made, nor should the court ever thereafter delay or refuse jus- tice, or reverse the proceedings for want of jurisdic- tion, except in cases of controversy respecting lands lying without the jurisdiction of such court, and also of infants and femes covert. This statute was before the court for construction in Pollard vs. PaUerson''s adrri'or, 3 H. & M. 67 ; and the unanimous opinion of the court was, that the statute meant to embrace those cases only, in which the hill showed on its face iprofer matter for the jurisdiction of equity, and the exception had to be taken by plea; and that the omission to plead gave equity no power to decree in favor of the plaintiff, if the case appeared upon the face of the bill to, be a mere legal question. The language of the present statute. Code 1873, ch. 167, sec, 20, is as follows: " When the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exception, for want of such jurisdic- tion, shall be allowed, unless it be taken by plea in abatement, and the plea shall not be received after the defendant has demurred, pleaded in bar, or an- swered to the declaration or bill, nor after a rule to plead, or a conditional judgment or decree nisi." See as to the construction of this statute, Hudson 180 DEFENCE TO SUITS IN EQUITY, VS. Kline, 9 Grat. 386, 387 ; Beckley vs. Palmer & ah., 11 Grrat. 631, 632. See also Green, &c. vs. Massie, 21 Grat. 356. Two exceptional cases are noted in Virginia by an accurate text- writer* to the rule, that a party by not demurring or pleading is held to have waived the objection to the jurisdiction. The general rule of equity is, that it will not entertain a bill for the purpose of allowing a man to make defence, which he might have made in the court of law, unless he shews some good reason why he did not avail himself of that defence in the court of law,'° yet, if the party does not choose to avail himself of the benefit of this rule, if he voluntarily goes into the merits of the case, and in his answer admits facts, which had they appeared to the court of law would have there produced a different result, neither the rule, nor the principle on which it is founded, will, it is said, be violated by pronouncing a decree justified by his own admissions. Cabell, J. in Van Lew vs. Bohannon, &c., 4 Rand. 540. In BricJchouse vs. Hunter, Banks & Co., 4 H. & M. 363, an injunction was granted to a judgment which was not liable to be examined in equity on any ground stated in the bill. The injunction might have been dissolved on motion; but instead of this, there was a reference by the parties of all matters in difference between them in the suit to certain arbi- trators. The submission to reference was regarded as a waiver of the objection to the jurisdiction of « 2 Bob. Pr. (old), p. 298. ^ See pp. 92, 93, ante. DEMUKKEB. 181 equity; and a decree was entered pursuant to the award of the arbitrators. 145. The whole facts of a case appearing from the records of other ended causes, exhibited by the plain- tiff with his bill, the court may pass upon it upon a demurrer to the bill without requiring the defendant to set out his defence in an answer." 146. If a bill for relief in equity grounds its claim for relief on a parol agreement, made cotempora- neously with a written agreement, of which cotem- poraneous agreement no legal proof can be furnished, it coming within the rule excluding parol evi- dence tending to vary or contradict the terms of a written agreement, the question may be rightly presented by demurrer, and the demurrer will be sustained,'' and the application of the rule of evi- dence referred to, removing from under the case of the plaintiff the ground on which it rests, his case is incurably defective, and no amendment can help him: the bill should be dismissed.'^ In Towner vs. Lucas, 13 Grat. 722, the bill was filed by one of three joint sureties for relief against a judg- ment recovered on a bond ; the bill set out a parol promise of the obligee, made at the time the surety signed the bond, that he would not be required to pay any part of it, and that the obligee would give him a written indemnity to save him harmless. This was the sole ground, on which relief was asked. The bill was demurred to. The court held, that as proof would be inadmissible to sustain the case made by '1 Young's adm'or v. McClung & ah., 9 Grat. 336. 52 Towner v. iMcas's ex' or, 13 Grat. 722, 725. ss jn^^ 182 DEFENCE TO SUITS IN EQUITY. the bill, the demurrer should be sustained and the bill dismissed. 147. A demurrer cannot be good in part, and bad in part, but it may be good as to one of the defen- dants demurring, and bad as to others." 148. On sustaining a demurrer, the plaintiff will be allowed in some cases to amend." Even after the bill has been dismissed by order, the court has, in its discretion, permitted it to be set on foot again.™ 149. A demurrer being frequently on matter of form, is not, in general, a bar to a- new bill; but if the. court on demurrer has clearly decided upon the merits of the question between the parties, the de- cision may be pleaded in another suit." 150. After a demurrer to the whole bill has been overruled, a second demurrer to the same extent will not be permitted, for it would in effect be to rehear the case on the first demurrer; as, on argument of a demurrer, any cause of demurrer, though not shown in the demurrer as filed, may be alleged at the bar, and if good will support the demurrer." 151. When a demurrer is overruled, a decree ought not to be pronounced against the defendant, but leave should be given him to file an answer.'' If =n Dan. Ch. Pr. (Perkins) 609; Story's Eq, PI., § 445; Mayor. &e. of Lon- don vs. Levy, 8 Ves. 403. =5 See 1 Dan. Ch. Pr. 624, 625. **Lord Coningshy vs. Sir J. Jekyll, 2 P. Wms. 300, and other cases cited 1 Dan. Ch. Pr. (Perkins) 623. " 1 Dan. Ch. Pr. (Perkins) 625, 626. See JST. W. Bank \b. Nelson, 1 Grat. 108, 128. 'HDan. Ch. Pr. (Perkins) 628; Mitf. PI. 216. ^'Sutton VB. Oatewood deux,, GMunf. 398. DEMUREEE FOE MULTIFAEIOUSNESS. 183 a defendant who is in default file a demurrer, which is overruled, he is not entitled to two months in which to file an answer." But a defendant, though in default for want of an answer, ought to be permit- ted to file any proper answer at any time before a final decree; the trial of the cause, however, is not to be consequently delayed unless for good cause shown/' Demurrers for multifariousness. 152. The following is ^he form of a demurrer for multifariousness, for joining in one bill distinct and independent matters : In the Circuit Court of the countv of : " The demurrer of A. B. to the bill of complaint exhibited in this court by M. M. against himself and others. This defendant by protestation, not confessing or acknowledging all or any of the matters and things in the said bill of complaint contained to be true, in manner and form as the same are therein set forth, doth demur thereto, and for cause of demurrer showeth, that it appears by the said bill that the same is exhibited against this defendant and J. H., J. C, T. S. and W. T., as co-defendants, for several and distinct matters and causes, in many whereof, as appears by the said bill, this defen- dant is not in any manner interested or con- cerned, by reason of which distinct matters the said plaintiff's said bill is drawn out to a con- ™ Reynolds vs. Bank of Virginia, 6 Grat. 174. ^Bowles vs. Woodion, 6 Grat. 78. 184 DEFENCE TO SUITS IN EQiriTY. siderable length, and this defendant is compelled to take a copy of the whole thereof, and by join- ing distinct matters together, which do not de- pend on each other in the said bill, the pleadings, orders and proceedings will, in the progress of the said suit, be intricate and prolix, and this defendant put to unnecessary charges in taking copies of the same, although several parts thereof no way relate to or concern him. Wherefore, and for divers other errors and imperfections, this defendant demands the judgment of this court whether he shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained; and prays hence to be dismissed with his reasonable costs in this behalf sustained. A. B." 153. The following demurrer for multifariousness, to a bill for discovery, was sustained in Shackell vs. Macaulay, 2 Sim. & Stu. 79; 1 Cond. Eng. Ch. R. 355. In the Circuit Court of the county of : This defendant by protestation, &c., and for cause of demurrer showeth, that the said complainants have not in and by their said bill shown any right or title to the discovery or to the commission and injunction thereby sought ; and for further cause of demurrer this defendant showeth, that the discovery and commission, by the said bill sought, relate to several distinct matters, by the said bill alleged to *^See J 135, ante, p. 168, as to demurrer in United States Circuit Courts. DEMUEEER FOE MULTIFAEIOUSNESS. 185 have been pleaded by the said complainants to two several and distinct actions at law, in the said bill alleged to have been commenced by this defendant against the said complainants, and which two several actions appear by the said bill to relate to several and distinct matters, and to be founded on several and distinct causes of action, and such several and distinct matters so pleaded by the said complainants to the said two several actions ought not to have been joined together in one bill. Wherefore, and for^other causes apparent, &c. PRACTICAL NOTES TO DEMURRERS FOR MULTIFAEIOUS- NESS. See section 19, ante, pp. 12-15, and notes. Story's Eq. PL, §§ 271-286, 530-549, 610, 820. By multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters, and thereby confounding them : as for example, the uniting in one bill of several matters, perfectly distinct and unconnected against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill. Story's Eq. PL, § 271 ; Mitf. PI. 181, 182. It was said in Gibhs vs. Clagett, 2 Gill & J. 14, that the objection of multifariousness should be raised by a demurrer before answer, and that filing an answer and going into testimony was a waiver of the objection. See also TTarii vs. CboA, 5 Madd. 122. To like effect is the ruling of Nelson vs. Sill, 5 How. 127, hereafter cited. When one general right is claimed by the bill, though the defen- dants have separate and distinct rights, the demurrer will not be sustained. Mitf. PL 182. Where, however, the plaintiff claims several matters of different natures, the demurrer will be sustained. Ibid. Dunn vs. Dunn, 2 Sim. 329 ; llaud nb. AcMem, 2 Sim. 331. In Dunn vs. Dunn, 2 Sim. 329, 2 Cond. Eng. Oh. 439, the in- fant heir and only son of an intestate joined with his sisters in a bill against their mother, the administratrix, for an account of the intestate's real and personal estates. A demurrer for multifarious- ness was sustained, the interests in the real and in the personal estate being distinct from each other. 34 186 DEFENCE TO SUITS IN EQUITY. The decisions are numerous, sustaining the rule as a general oiie, that a plaintiff is not to be permitted to demand by one bill seve- ral matters of different natures against several defendants. Were this allowed, it would tend to burthen each defendant with unne- cessary costs, by swelling the pleadings with the state of the several claims of the other parties with which he has no connection. Berhe vs. Marris, do., Hard. 337; Ward, <£c. vs. Duke of Norihumber- land, da., 2 Anstr. 469; Billy vs. Doig, 2 Ves., Jr., 486; Att'y Gen. vs. Corporation of Carmaihen, Cooper's Oh. R. 30 ; Whaley vs. Dawson, 2 Sch. & Lef. 367 ; Saxfon vs. Davis, 18 Ves. 72 ; Stuart's heirs vs. Coalter, 4 Rand. 74. As to what constitutes multifariousness, it is impossible to lay down a general rule ; every case must be governed by its own cir- cumstances, and the court must exercise a sound discretion. Gaines vs. Chew, 2 How. 619 ; Oliver vs. Piatt, 3 How. 333. A bill was filed against executors, denying their authority to act as such, and seeking to recover the property sold by them as such ; the purchasers of the property were made co-defendants with the executors : held, that the bill was not multifarious. Gaines vs. Chew, 2 How. 619. The objection of multifariousness cannot be taken by a party for the first time at the hearing of the cause ; but the court itself may take the objection at any time. Oliver vs. Piatt, 3 How. 333. In the United States Circuit Courts the objection can be taken advan- tage of by a party, only by demurrer or exception to the pleading, and must be made before answer, and can be tested only by the structure of the bill itself. Nelson vs. Hill, 5 How. 127, 132. Though the bill be not demurred to for multifariousness, the court may sua sponte raise the objection, and dismiss the bill at the hearing, but the court will not ordinarily do so. See Chew vs. Panic of Paltimore, 14 Md. 299. The objection that a bill is multifarious will have no influence upon a motion to dissolve an injunction. Shirley vs. Long, dc., 6 Rand. 764. M. was the administrator of husband and wife, and it being doubtful whether the right to the fund was in the estate of the husband or the wife, he sued for it in both' characters. A demur- rer to the bill was overruled. Prent vs. Washington, 18 Grat. 526. The statute requires the captain, or other officer of a vessel en- gaged in the oyster trade, to take out a license. A number of such captains or officers may unite in one bill to enjoin the sale of their vessels, and test the constitutionality of the act. Johnson vs. Drummond, 20 Grat. 419. Legatees who had obtained a decree ascertaining the rights of all, on another bill sought satisfaction out of a common fund. It was held proper for all of them to unite in one suit, to get the DEMUEEEB FOR MULTIFAEIOUSNESS. 187 benefit of the former decree, and that the bill was not multifarious. Sheldon vs. Armistead, 7 Grat. 264. In Hill <& ah. vs. Bowyer d als., 18 Grat. 364, it was held that the objection of multifariousness alone was not sufficient ground for reversing the decree. The court said : " If this objection had been raised in the case while it was in the Circuit Court it must have been sustained. But not having been raised there, an appel- late court would not reverse the decree on that ground alone." To determine whether a bill is multifarious, we must look to the stating part of the bill and not to the prayer alone ; for if in his prayer for relief the complainant asks several things, to some of which he may be entitled, and to others not, the bill is not on that account multifarious; he will at the hearing be entitled to that specific relief only, which is consistent with the case made in the stating part of the bill. Sammond vs. Michigan State Bank, Walk. Oh. 214. See Lewen vs. Stone, 3 Ala. 485. In Segar <£ ah. vs. Parrish <£ ah., 20 Grat. 672, the case was this : A., B. and C. were the heirs of William Parrish, and also heirs of Mark Parrish ; D. and E. were the heirs of Mark Parrish alone. They all appointed Segar their agent, to collect and sell land scrip due to William Parrish, and also land scrip due to Mark Parrish. The scrip was obtained and sold, but the agent did not pay over the proceeds. All the heirs, both of William and Mark Parrish, united in one suit for the recovery, and called for a dis- covery from the agent. The bill was held not to be demurrable either for multifariousness, or because the plaintiffs had a complete remedy at law. In iCnye vs. Moore, 1 Sim. & Stu. 61, 1 Cond. Eng. Ch. E. 32, a mother joined with her children as co-plaintiffs in a bill, the object of which was to establish two distinct claims arising under separate instruments; the mother claiming an annuity under one, and the mother and children claiming the benefit of a settlement under the other. It was held that the bill was not multifarious, upon the ground, that the whole case of the mother being properly the sub- ject of One bill, the suit did not become multifarious, because all the plaintiffs were not interested to the same extent. There is perhaps no rule established for the conducting of equity pleadings, with reference to which (whilst as a rule it is universally admitted) there has existed less of certainty and uniformity in ap- plication than has attended this relating to multifariousness. This effect, flowing perhaps inevitably from the variety of modes and degrees of right and interest entering into the transactions of life, seems to have led to a conclusion, rendering the rule almost as much an exception as a rule, and that conclusion is, that each case must be determined by its peculiar features. Daniel, J., in Shields vs. Thomas <& als., 18 How. 259. See Gaines vs. Chew, 2 How. 619 ; Oliv^ vs. Piatt, 3 How. 333. 188 DEFENCE TO SUITS IN EQUITY, In Shields vs. Thomas d als., 18 How. 259, several claimants of parts of an estate united in filing a bill ; this, it was held, did not make the bill multifarious, the complainants all claiming under one and the same title. Several different underwriters having claims to a return of mo- neys by them severally paid on account of loss, cannot unite in one bill. Yeaton vs. Lenox, 8 Peters 123. There may be a demurrer for multifariousness, ordinarily so called, which is in fact a demurrer for misjoinder [of subjects]. The distinction between misjoinder and multifariousness was clearly ex- hibited in the case of Ward vs. Duhe of Northumberland, 2 Ans. 469. In that case, the plaintiff had been tenant of a colliery under the preceding Duke of Northumberland, and continued also to be tenant under his son and successor, the then Duke, and he then filed a bill against the then Duke and Lord Beverley, who were the executors of their father, and seeking relief against them in respect to transactions, part of which took place in the lifetime of the former Duke, and part between the plaintiff and the then Duke after his father's decease. To this bill the defendants put in separate demurrers, and the forms of the two demurrers, which were very different, clearly illustrate the distinction between the two. The Duke could not say there was any portion of the bill with which he was not necessarily connected, because he was inter- ested in one part of it as owner of the mine, and in the other as representing his father. But his defence was, that it was improper to join in one record a case against uiia. as representative of his father, and a case against him arising out of transactions in which he was personally •concerned. The form of his demurrer was, that there was an improper joinder of the subject-matter of the suit. Lord Beverley's demurrer again was totally different ; it was in the usual form of demurrer for multifariousness, and proceeded on the ground that, by including transactions which occurred between the plaintiff and the late Duke (with the latter of which only Lord Beverley could have any concern), the bill was drawn to an unne- cessary length, and the demurring party exposed to improper and useless expense. Both demurrers were allowed. DEMUEEER FOE "WANT OF PAETIES. 154. The following is the form of a demurrer for want of parties. In the Circuit Court of the county of : As in form on p. 183, to word " forth," then pro- ceed: Do demur to "the said bill, and for cause of DEMUEEER FOE WANT OF PARTIES. 189 demurrer show that it appears by the complainant's own showing that J. S., therein named, is a necessary party to the said bill, inasmuch as it is therein stated, &c. [here recite so much of the statements of the bill as show that J. S. should be made a party] ; but yet the said complainant has not made the said J S. a party to the said bill. Wherefore, &c. (as on page 184 to the end).'' PRACTICAL NOTE. A demurrer for want of necessary parties must show who are the proper parties, from the facts stated in the bill, not, indeed, by name, for that might be impossible, but in such a manner as to point out to the plaintifiF the objection to his bill, and to enable him to amend by making proper parties.** If it be not apparent on the face of the bill that necessary par- ties are omitted, the objection can be taken only by plea or answer. Mitchell vs Lenox, dc, 2 Paige 280 ; Rohinson, dc. vs. Smith, (6c. , 3 Paige 222. The plea or answer must disclose facts showing that additional parties are necessary, and must show who the necessary parties are, and then the plaintiffs can have leave to amend their bill and make the proper parties. Coohi <£c. vs. Mancius, dc, 3 John. Oh. E. 427 ; Mlligan vs. Millidge, dc, 3 Oranch 220. The defendants can demur only when it is apparent from the bill itself that there are other persons who ought to have been par- ties. Hohinson, dc. vs. Smith, dc, 3 Paige 222. If the demurrer be allowed, leave will be given the plaintiff to amend his bill on payment of costs, so as to bring out all proper parties before the court. Mitchell vs. Lenox, dc, 2 Paige 280. See .Elliott's ex'ors vs. Dayton, dc, 3 Desau. 29. Though no objection for want of parties be made by the plead- ings, such objection may, notwithstanding, be generally taken at the hearing, if the ground of it appear on the face of the bill. In Munford, dc vs. Murray, 6 John. Ch. E. 11, the objection did not prevail ; but then the creditors, who it was said ought to be parties, had suffered twenty years to elapse without asserting their claims, and it was presumed that those claims had been satisfied or abandoned. ^ See aection 135, on page 168, as to demurrer in United States Circuit Courts. «*Mitf. PH80. 190 DEFENCE TO SUITS IN EQUITY. When the objection for want of parties is made at the hearing, and the court is of opinion that the objection is well founded, ic will not, because proper parties are wanting, dismiss the bill abso- lutely, but will give the plaintiff leave to amend his bill by adding proper parties on payment of the usual costs. Green vs. Poole, 4 Brown's Par. Oas. 122, Tomlin's edit., vol. 5, p. 504 ; Anon, 2 Atk. 15; Jones vs. Jones, 3 Atk. Ill; Oolt vs. Lasnier, 9 Cow. 334; Allen (£ als. vs. 8mith, 1 Leigh 231. Upon an appeal from a decree, if the appellate court shall be of opinion that the court below erred in proceeding to_ decree without having the proper parties brought before it, the decree will be reversed for this error, and the cause sent back, with liberty to the plaintiffs to amend their bill by making proper parties. Harding vs. Handy, 11 Wheat. 133 ; Marshall vs. Beverley, 5 Wheat. 313 ; Conn., <£o. vs. Penn., Id. 424. The appellate court will reverse for want of necessary parties, though the objection is not taken in the court below. Taylor s adrnor <£ als. vs. Spindle, 2 Grat. 45. But see the case of Buck vs. PennyhacTcer s ex'or, 4 Leigh 5, as to the reluctance of the appellate court to undo all that has been done, because of a failure to make certain persons defendants, who, strictly speaking, ought to have been made parties. If it appear on the face of the record that proper parties to the suit are wanting, the decree will be reversed, unless the objection was expressly waived in the court below. Sheppard's ex'or vs. Starke, 3 Munf. 29. In Dichinson vs. Davis (& als., 2 Leigh 401, when slaves were real estate, the heir at law of Eichard Davis united with his sis- ters, distributees, together with himself, of Eichard Davis, in a bill in equity for the slaves. The misjoinder was not objected to in the court below. There was a decree in favor of the plaintiffs. In the Court of Appeals the objection was insisted on. Carr, J., pronoun- cing the opinion of the court, said : I will not say what might have been' the effect of this objection if properly pleaded, but in the present situation and stage of the cause I think it can have no other effect than this, that the court will consider the right, if there be any, as vested in Smithson [the heir], and bound by his acts or omissions. The court, however, reversed the decree on other grounds. The proposition that a party may sometimes waive an objection as to the want of parties, is in no wise opposed to the maxim, that consent cannot give jurisdiction. The want of parties cannot be regarded (at least not in all cases) as a sine qua non of the jurisdic- tion of the court, without which no complete decree can be had. In many cases it may certainly be considered a privilege in favor of the defendant, rather than an ingredient of the jurisdiction of a court of equity, and such a privilege it is competent for him to relinquish. He may waive this privilege as he may waive any DEMURRER FOR WANT OF PARTIES. 191 advantage that might be taken of error in the form of the proceed- ings, and rely altogether on the merits of hia cause. Opinions of Judges Roane and Fleming, in Mayo vs. Murchie, 3 Munf. 400, 404, 409. General eule that all persons interested must be par- ties. It is a general rule in equity that all persons materially interested in the subject-matter of the bill ought to be made parties to the suit, however numerous they may be. Story, J., in West vs. Randall, dc, 2 Mason 190; Carr, J., in Olarh \s.Long, 4 Rand. 452; Wiser vs. Blachly, do., 1 Johns. Oh. Rep. 437; Colt vs. Les- nier, 9 Oow. 329 ; Bailey vs. Inglee, c&c, 2 Paige 278 ; Swan vs. Li- gan, (&c., 1 M'Oord's Oh. Rep. 231 The rule, however, is restricted to those who are'interested in the property which is involved in the issue, and does not extend to persons who merely have an interest in the point or question litigated. In Wendell vs. Yan Rensselaer, 1 Johns. Oh. Rep. 344, the testator had conveyed, with covenants of -warranty, part of the lands owned by him, and had died seized of the other part ; the defendants claimed the whole lands, as well that part which the testator had conveyed, as the other part of which he died seized ; the bill was by the testator's representatives for a discovery of the defendant's claim, and to be quieted in their right as representatives ; and the objection was taken that the pur- chasers from the testator were not made parties. The objection was overruled, upon the ground that the purchasers had no interest in the estate of which the testator died seized, and which alone was the subject of the bill. Many diiBculties and delays must, of necessity, arise in suits in equity from the number of parties that are indispensable. But these delays and difficulties ought not to be unnecessarily increased. "On general principles," says Judge Roane, " it would seem that those who have, and those who want the entire subject of contro- versy, would be proper and sufficient parties. It is enough that all those should be parties, defendant to the suit, who possess all the rights in controversy in that suit, and therefore can enable the court of equity to make a complete decree upon the subject. It is not necessary that all those should be also parties, who will be neces- sary parties in other suits to which the decision of the suit in ques- tion may give rise, by reason of a warranty or otherwise. There is no need to essay the vain attempt to settle by one decision all other suits, and every consequential claim or injury which may grow out of the decision of the point in issue." Ma.yo vs. Murchie,B Munf. 401, 402. The rule that all persons materially interested ought to be par- ties, was established, says Lord Eldon, for the convenient adminis- tration of justice, and must not be adhered to in cases to which, consistently with practical convenience, it is incapable of applica- 192 DEFENCE TO SUITS IN EQUITY. tion. Oochhurn vs. TJkompson, 16 Ves. 326. See also Clifton vs. Haig's ex'ors, 4 Desau. 343. Oases of feaud. Where a suit is brought to set aside a con- veyance upon the ground of a fraud practised by the grantee upon the grantor, and the grantor has died, if the conveyance be of real estate, it will be sufficient to file the bill in the name of the heirs or devisees of the grantor. Livingston vs. Peru Iron Company, 2 Paige 390. But if the conveyance was of personal estate, as well as real, then the administrator of the grantor must likewise be a party. In Samuel vs. Marshall, dc, 3 Leigh 567, the conveyance was of the grantor's whole estate, both real and personal ; and the bill was by the grantor's heirs and distributees. The conveyance was set aside in toto. But held, that though the plaintiffs were in- terested to set aside the deed, yet the defendant could not be decreed to surrender the jiersonal estate to them ; the personal representa- tive of the decedent being no party to the suit. See also Whelan vs. Whelan, 3 Cow. 580 ; Hansford. <&g. vs. Elliott, do., 9 Leigh 79. Where a judgment creditor seeks to set aside an assignment or deed of trust made by his debtor, upon the ground that it is frau- dulent and void, it has been held that he is at liberty to proceed against the fraudulent assignee or trustee, who is the holder of the legal estate in the property, without joining the oestuis que trust. Mogers, <&c. vs. Rogers, do., 3 Paige 379. A distinction is taken between a bill of this kind and a bill to enforce a claim under the trust. On a bill by one cestui que trust against the trustee, the other cestuis que trust must generally be parties. In Tate vs. Liggat, dc, 2 Leigh 106, a creditor obtained a decree against his debtor, and sued out a ca. sa., under which the debtor took the oath of insolvency ; and then the creditor filed a bill to subject property which had been conveyed by his debtor in trust to secure a pretended debt. Held, that the marshal who levied the ca. sa., and in whom the rights of the debtor vested by operation of law, upon the surrender of his effects as an insolvent debtor ought to be made a party. See also Deas vs. Thome, dc, 3 Johns. Eep. 543 ; Movan d wife vs. Says, 1 Johns. Oh. Eep. 339; Osgood vs. Franklin, 2 Johns. Oh. Eep. 18 ; Ward vs. Van Bokkelen, dc, 2 Paige 289 ; De Wolf vs. Johnson, 10 Wheat. 384. Bill of discovery. Officers of a corporation may be made parties to a bill of discovery, for the purpose of enabling the com- plainant to obtain a knowledge of facts which could not be ascer- tained by the answer of the corporation, put in under their corpo- rate seal and without oath. Vermilyea vs. Fulton Bank, dc, 1 Paige 37. This is an exception to the general rule, that a mere witness cannot be made a party defendant. See Wych vs. Meal, 3 P. Wms. 310. The reasons for the exception, which are given in the case just cited, apply as well to the former as to the present officers of the DEMURRER FOR "WANT OF PARTIES. 193 corporation, when the knowledge of the facts, of which the discovery is sought, rests only with such officers, and especially when it relates to their own official acts. Fulton Bank vs. Sharon Canal Gompany, dc, 1 Paige 219. Eedemption of mortgage. Where a mortgagee assigns the whole benefit of his security, he is not a necessary party to a bill for redemption, for he has no longer any interest in the subject. By Sir John Leach, Vice Chancellor, in Norrish vs. Marshall, dc. 5 Madd. Ch. Eep. 478, Am. edi. 290. In such case, the persons in- terested, by virtue of the assignment, must be made parties. Hich- oeh vs. Sorihner, 3 Johns. Gas. 311. If, however, the mortgagee assigns only a part of the benefit of the security, his interest in the subject continues, and he is, gene- rally speaking, a necessary party as well as the assignee. But even in this case he may be dispensed with if the amount as to which he made no assignment is acknowledged by him to have been paid. In Norrish vs. Marshall, do., above cited, the assignor was examined as a witness for the plaintiff, and swore that he had been fully paid, and had no longer any interest in the subject. Sir John Leach permitted the cause to be proceeded in without his being made a party. Where the equity of redemption has been assigned, and the as- signee of the mortgagor brings a bill to redeem, the mortgagor must sometimes be a party. In Clark vs. Long, 4 Eand. 451, the case was this. A debtor executed a deed of trust upon his land to se- cure a creditor, the debtor afterwards sold his equity of redemp- tion, and his bargainee filed a bill to redeem, impeaching the con- sideration of the deed of trust, contesting the amount due under it, and calling for a settlement of these points. Held, that the debtor was interested in these questions, and he not being a party to the suit, the decree was reversed by an appellate court, and the cause sent back. PuECHASER. When an attempt is made to subject land in the pos.?ession of a purchaser, with notice, to an equitable lien, the per- son under whom such purchaser claims, or his legal representative, ought to be parties to the suit. Wilcox vs. Calloway, 1 Wash. 38. If pending a suit to subject land in the hands of a purchaser to a judgment, the purchaser dies, his heirs are necessary parties. Tay- lor s adm'or d ah. vs. Spindle, 2 Grat. 44. In a suit by the claimant of an incumbrance against a vendee having notice, a person who joined the vendor in the deed for the purpose of relinquishing a collateral claim is not a necessary party. Blair vs. Owls, 1 Munf. 38. Vendor and Vendee. After judgment recovered by vendor against two joint vendees of land for a balance of the purchase 25 194 DEFENCE TO SUITS IN EQUITY. money, one of the vendees dies, and the other brings suit against the vendor for deficiency in the land, the representatives of the deceased vendee were held to be necessary parties. Orawford (& ah. vs. McDaniel, 1 Rob. R. 448. In Pennington vs. Sanby, do., 4 Munf. 144, previously cited, p. 25 n., it was held that a decree could not be made against a widow to restrain her from conveying her right of dower if she be not made a party defendant to the bill as widow, or in her own right, but merely as administratrix of the decedent and guardian of his children. But in Kinney's ex or vs. Harvey, do., 2 Leigh 70, the defendant was charged in the bill as executrix and as devisee of a decedent. In the caption of her answer she professed to answer only as devisee, but in the body of her answer she, in fact, answered as devisee ; it was held, that the answer placed her before the court in her character of devisee. FoEECLOSURE OF MORTGAGE. Where there has been no assign- ment by mortgagee or mortgagor, and both are alive, it will gene- rally be sufficient to file the bill, to foreclose in the name of the mortgagee against the mortgagor. Van Veohten, do. vs. Terry, do., 2 Johns. Oh. Rep. 197, is a strong ease of this kind. A joint fund had been raised by above two hundred and fifty subscribers to pur- chase the property in JVew York known by the name of Washing- ton Hall. The subscribers being too numerous to hold and manage the property as a copartnership, certain trustees were selected to whom the property was conveyed, and these trustees, in pursuance of a trust contained in the deed to them, mortgaged the premises. A bill to foreclose was brought by the mortgagees against the trus- tees, and a demurrer was filed because the stockholders were not made parties. The, Chancellor thought it would be intolerably op- pressive and burdensome to compel the plaintiffs to bring in all the cestuis que trust. It seemed to him that the trustees represented sufficiently all the interests concerned, and he overruled the demur- rer. Call vs. Sooit, do., 4 Call 402, was a peculiar case. The endorser of a bill of exchange had a mortgage from the drawer for his secu- rity, and after the protest, and before payment, brought a suit against the mortgagor to foreclose the mortgage. The defence of usury was made. In regard to this defence the plaintiff stood on common ground with the defendant. If the bill were invalid, both plaintiff and defendant were discharged. The holder was entirely unrepresented. In this state of the matter it was considered erro- neous for the court of chancery to proceed to decree upon the merits. Instead of pronouncing such decree, the court of appeals was of opinion that the court of chancery ought to have given leave to the plaintiff to amend bis bill by making the holder a party, and if DEMUEREK FOR WANT OF PARTIES. 195 this were not done within a reasonable time that the bill ought to stand dismissed. Where the mortgagor and mortgagee are both dead, if the mort- gage be of slaves, or other personal property, and there has been no assignment, the bill to foreclose will be by the executor or ad- ministrator of the mortgagee against the executor or administrator of the mortgagor. Sarrison vs. Harrison, dc, 1 Call 419. If the mortgage be of land, and the mortgagor has devised the equity of redemption in the mortgaged premises, the devisees must be made defendants to the bill to foreclose. Chancellor Taylor in Ch-aharns ex or vs. Carter, 2 H. & M. 6. A devisee must be made a party, notwithstanding the devise was upon certain conditions which the complainant alleges were never complied with; for whe- ther the conditions were complied with or not, is a matter that can- not be investigated until the devisee is made a party. Mayo vs. Tom- kies, 6 Munf. 520. In a suit against the devisees, the mortgagee is not obliged, before he can get hold of the mortgaged subject, to go into an account of the personal assets of the mortgagor ; and hence there is no necessity to make the personal representative of the mortgagor a defendant, in order to obtain such account. Chancel- lor Taylor in Patton vs. Page, 4 H. & M. 449. But as the personal representative may have it in his power to show payment or satis- faction, he ought for this reason to be made a party. Sarrison vs. JSarrison, do., 1 Call 419. Where the devisee has died, his heirs should be brought before the court. Mayo vs. Tomkies, 6 Munf. 520. If it appear that the devisee sold and conveyed the lands, and that the purchaser by his will authorized his executors to sell the same, the executors of such purchaser ought to be made parties. B. O. If there be several executors, all must be parties, and not merely that one who has at- tended to the making of the sales. S. C. So, too, if a purchaser from the executors be in possession of any part of the land, such purchaser should be made a party ; and if there be more purcha- sers than one, all must be brought before the court, in order that they may be subjected to a ratable contribution. 3. O. All persons who are incumbrancers at the commencement of the suit must be made parties, or else their rights will not be affected by the decree and sale thereunder. In Harris, do. vs. Beach, dc, 3 Johns. Ch. Rep. 459, there had been a decree for the sale of the premises under the first mortgage, and a conveyance to the purcha- ser. But the second mortgagee was no party to the suit. On a bill by the executors of the second mortgagee, and by his heir and devi- see against the purchaser, held that the plaintiffs were entitled to redeem notwithstanding the sale. See also Ensworth vs. Lambert, do., 4 Johns. Ch. Eep. 605; McGown, do. vs. Yerks, do., 6 Johns. Oh, Eep. 450; and Halkek vs. Smith, dc, 4 Johns. Oh. Eep. 649. l96 DEFENCE TO SUITS IN EQUITY. Where the mortgagee has made an absolute assignment of all his interest in the mortgage, and the assignee brings a bill to foreclose, there is no necessity for making the mortgagee a party, if there be nothing special and peculiar in the case. Whitney vs. M' Kinney, 7 Johns. Oh. Rep. 144; Newman vs. Chapman, 2 Eand. 93. It is otherwise where the assignment is not of the mortgagee's whole in- terest, as in Hohart vs. Ahhot, 2 P. Wms. 643. There the sum of £850 was secured to the mortgagee, and he assigned to secure £800. On a bill by the assignee against the mortgagor, it was held that the representatives of the mortgagee ought to be parties, for they had a right to redeem. Deeds op teust. Where the maker of a deed of trust conveys to trustees the whole of his estate, both real and personal, this passes equitable as well as legal estate, and the trustees are the proper persons to litigate any claim which the maker of the deed had to property of any kind. Thus in Carter, do. vs. Harris, 4 Rand. 199, a deputy sheriff, who sold a slave under execution, purchased the slave under circumstances which rendered the sale invalid. After this the judgment debtor made a conveyance to trustees in this manner above mentioned. And they filed a bill claiming to redeem the property by paying the amount of the ex- ecution. It was objected that the judgment debtor was no party to the suit; and he alone, it was insisted, had a right to sue. But the objection was overruled. In Mitchell vs. Lenox d Tayhr, 2 Paige 280, the complainant had assigned all his property to trustees, in trust to pay certain debts due to the United States and to H. Stevenson, and to divide the surplus, or so much thereof as might be necessary, among such of the other creditors of the complainant as should come in under the assignment, and release him from the payment of their de- mands. Creditors having debts amounting to more than $44,000 came in under the assignment and complied with the condition thereof. Two of these creditors were afterwards paid by the complainant, who took from them an assignment of their debts. The bill of the complainant was against the surviving trustees, fpr an account of the trust property ; and the defendants demurred, on the ground that the creditors who came in under the assign- ment should have been made parties. The demurrer was allowed, with liberty to the complainant to amend his bill, on payment of costs, so as to bring the proper parties before the court. Where the conveyance is of personal estate as well as real, and the grantor has died, if a bill be brought by his heirs against the trustees for an account of the trust subject, the personal represen- tative of the grantor must be made a party to the suit. West vs. Randall, do., 2 Mason 181. DEMURRER FOR WANT OF PARTIES. 197 Eesulting trusts. Where the bill is by a grantee or his devisee against persons in possession of the lands granted, and from the showing in the bill it appears that the plaintiff is a mere nominal trustee, and that a particular individual is the cestui que trust, it is indispensable that such cestui que trust should be made a party. In Malin vs. Malin, dc, 2 Johns. Ch. Rep. 238, the bill stated that a religious society was formed at Jerusalem in the county of Ontario, denominated " The Society of Universal Friends," of which Jemima Wilkinson was the founder and head ; that for the support of herself and the poor of the society the said Jemima purchased certain lands and paid the purchase money, and as a rule of the society forbade any estate being vested in her, she nominated one of her followers to be her trustee, and the deed was taken in the name of that individual without any expression of the trust in the deed ; that the grantee devised the lands to the . plaintiff, but, owing to some alleged imperfection in the devise, the grantee's daughter and the husband of that daughter claimed the lands and had entered thereon. The husband and wife were made defendants ; and the bill stated that the said Jemima was re- strained by her profession and conscience from becoming a party to any suit or proceeding at law whatever. It was objected that she ought to have been made a party plaintiff, since, according to the shewing in the bill, she was the only person equitably entitled ; and the objection was sustained. If it should be made to appear by affidavit or the report of a master, that she had religious scru- ples which could not be surmounted, the chancellor thought that perhaps she might be permitted to become plaintiff by her prochein ami. A person incompetent to protect himself, from age or weak- ness of mind, or from some religious delusion or fanaticism, ought, he said, to come under the protection of the court. If a bill be brought by the cestui que trust against the grantee of the land, and such grantee die, the suit should be revived against the hdrs or devisees of the grantee, and not merely against his execu- tors. Key's ex'oTS vs. Lambert, 1 H. & M. 330. Disposition of assets. A suit against legatees for a debt due from the testator should be against all the legatees, and the executor should likewise be a party. The necessity of making the executor a party can on,ly be dispensed iyith, when it appears that the ac- counts of the executorship have been regularly settled, and the whole estate delivered over to the legatees. Hooper vs. Royster, 1 Munf. 119. See also Scale's adm'or vs. Taylor's adm'or dc ah., 2 Grat. 582. If a joint and several bond be executed by two obligors, and a suit be brought against the devisees of one of them, to subject to the payment of the debt the lands which such devisees hold, the court should not decree against them without having also the other 198 DEFENCE TO SUITS IN EQUITY. obligor or his representatives before it ; for the other obligor or his representatives may have paid the debt or a part thereof, and in such case their assistance is necessary to prevent the obligee from receiving payment a second time. Mister <£ wife vs. Orenshaws exors, 3 Munf. 514. It has long been settled that if several pecuniary legacies be given to different persons, as £600 to A, £700 to B, and £700 to 0, each legatee may sue for his own legacy, without making the others parties. Haycock vs. Haycoch, 2 Oha. Cas. 124 ; Brown vs. Bick- etts do., 3 Johns. Gh. Eep. 553. But where the fund out of which the legacies are to be paid proves deficient, and each legatee has to abate proportionably, then all whose legacies are to abate should be before the court. In Jones vs Sobson, 2 Rand. 505, the bill was filed against an executor and his sureties, to recover pecuniary legacies; and it appeared that other legacies were due besides those claimed by the plaintiffs, and the fund for which the sureties were responsible was not sufficient to pay all. All the legatees had a right to have the fund ratably distributed amongst them ; and the court of appeals decided that all ought to be made parties. In the case of Brown vs. Bichetts <£c. above cited, the bill was filed by a single pecuniary legatee on behalf of himself and such other legatees of the testator as might choose to come in and con- tribute to the expense of the suit ; and chancellor Kent seems to have -considered it material that the bill should be so framed. See also Fish vs. Howland, do., 1 Paige 20; Kettle d wife vs. Orary, 1 Paige 417, note a; and Manning vs. Thesiger, dc, 1 Sim. & Stu. 106. 1 Oond. Eng. Oh. Eep. 53. When the bill is filed by a legatee who is entitled to priority of payment, he need not make the persons interested in the residuum of personal estate parties to the suit. The executor or adminis- trator is in such cases the legal representative of the rights of the residuary legatees, and it is his duty to see them properly de- fended. Pritchard vs. Sicks, dc, 1 Paige 270. If the suit be not for a pecuniary legacy of certain amount, but for a share of a subject which is to be divided amongst several persons, the general rule is that all must be parties who are inter- ested in the division of that subject. Accordingly it has been decided that in a suit brought by one of several residicary legatees against the executors to recover hig share of the estate, all the re- siduary legatees should be made parties. Bichardsons exor vs. Hunt, 2 Munf. 148; Shohe's exors vs. Carr, 3 -Munf. 19; Bheppards ex or vs. Starke d wife, 3 Munf. 29 ; Davoue vs. Fanning, 4 Johns. Oh. Rep. 199. Contra, Hallett, dc. vs. Halleit, dc, 2 Paige 15. But where a testator by his will directed that when any one of his children should separate from the family, he should have his share of the estate, and a suit was brought by one of the children after the shares of others had been allotted to them, it was held DEMURRER FOR WANT OF PARTIES. 199 unnecessary to make all the children parties to the suit, but suffi- cient to make those parties who remained entitled to shares at the time of instituting the suit. A contrary rule, it was said, would harass the persons interested, by a multiplicity of suits; for the division could not be made for all the children at one and the same time, and under the operation of the contrary rule all would be made parties whenever any one separated from the family and claimed his share. Branch's acZm'arvs. Booker s adm'r, 3. Munf. 43. Where a legatee has died without receiving his share of the estate, a suit to recover the same must be in the name of his exe- cutor or administrator. Generally speaking, a bill cannot be main- tained in the names of persons suing as children of the legatee. It was so adjudged, in a case in which the bill stated that the lega- tee had died intestate and no person had administered upon his estate. Moring vs. Imccls c£c., 4 Call 577; Hays's ex or d others vs. Hays <& others, 5 Munf. 418. But where an intestate died leaving eight children his distributees, and one of them died in his infancy, it was held that the surviving distributees might recover the whole amount due from the administratrix, including the share of the infant distributee. In this case it was considered that no administration was necessary on the estate of the infant distribu- tee, nor any security requisite for the plaintiffs' refunding what they might receive on account of his share, because of the fact that he died an infant and could not be supposed to owe any debts, Myers <£ others vs. Wade <£ others, 6 Eand. 448. See also Bhep- pard's ex' or vs. Starke <& wife, 3 Munf. 29; and Bradford vs. Fel- der, 2 M'Oord's Oh. Rep. 168. Distributees of a decedent may maintain a bill in equity to as- sert their rights in the decedent's estate, but they cannot have distribution thereof without having the executor or administrator of the decedent before the court as a party to the cause. Hans- ford, dc. vs. Elliott, (£o., 9 Leigh 79. See Samuel vs. Marshall £ als., 3 Leigh 567, cited ante, p. 192. Legatees cannot sue an executor de son tort without setting up an administrator de bonis von and making him a party. Without doing this, a recovery by the legatees would not protect the executor de son tort. He would be liable afterwards to the demand of an ad- ministrator de bonis non. Frazier, c&c. vs. Frazier s ex'ors, c&c, 2 Leigh 649. Where two executors or administrators have qualified on a dece- dent's estate and acted jointly, a bill by the legatees or distributees of such estate cannot be brought against one executor or adminis- trator, but must be against both. Bregaw vs. Claw, 4 Johns. Ch. Eep. 116. So if a testator devise real estate to be sold by his exe- cutors, and the proceeds divided into shares, and two of the execu- tors qualify and sell the property, they must both be made defen- dants to a bill filed to recover a share of the proceeds. Findlay, 200 DEFENCE TO SUITS IN EQUITY. ex'oT, do. vs. Sheffey, 1 Band. 73. See also Fahre <& wife vs. Golden, 1 Paige 166. In Findlay, ex or, <£c. vs. Sheffey, a testator devised reaZ estate to be sold, and the proceeds divided among certain persons who were specified. One of these persons assigned his interest, ai3d the as- signee filed a bill to recover the same. The only defendants were the executor and the assignor. It was held that the other devisees interested in the property ought likewise to have been made par- ties. See also Fahre <£ wife vs. Oolden, 1 Paige 166. Where a testator devises land to be sold, and directs the proceeds to be divided among his children, if the executor after selling the land should die without paying over the proceeds, a bill may be filed in the name of the children against the representative of the executor to recover the same. If the executor died before receiv- ing the proceeds from the purchasers of the land, the bill may be filed in the name of the children against the purchasers. The ad- ministrator de bonis non of the testator need not be' made a party to the suit, because the proceeds of the land are not legal assets, and the administrator de bonis non would have nothing to do with the fund. Oraff d others vs. Castleman, <&c., 5 Rand. 195. Although after a judgment against an executor or administrator as such, and a return of nulh, bona, an action at law may be brought suggesting a devastavit, yet the creditor is not confined to this remedy. If he does not know the state of the assets, nor the claims against the estate, he may file his bill in equity to have a discovery of these matters, and, on that discovery being made, may either pro- ceed at law, or the court of equity may retain the cause and deter- mine the dispute between the parties. White, <£c. vs. Banister s ex'ors, 1 Wash. 166. In the suit in equity, the sureties of the execu- tor or administrator, and other persons concerned in interest, may be made parties defendant, and decreed against. By Taylor, Oh., in Clarke vs. Webb, do., 2 H. & M. 8. Although the assent of the executor to the bequest of a personal chattel will exempt the chattel at law from being taken under exe- cution to satisfy a judgment against the executor, yet such assent can never defeat the right of a creditor to pursue in a court of equity the assets of a testator in the hands of the legatees, if neces- sary for the payment of the testator's debts. Dunn vs. Aray dais., 1 Leigh 465 ; Milligan vs Milledge, do., 3 Cranch 228. The bill in such case should not be against the legatees alone. The correct way of proceeding is to file it against the executor as well as the legatees. Fresoott vs. Frescott d als., 1 McOord's Oh. Rep. 433. When the executor has died, his representatives should be made defendants. Elliott's ex'ors vs. Drayton, do., 3 Dis. 29. And who- ever is then the personal representative of the first decedent should also be a defendant. In such suit all the legatees must be made parties, that the charge DEMURRER FOR WANT OP PARTIES. 201 may not fall upon one, but may be equally borne by tlie whole. Burnley vs. Lambert, 1 Wash. 308 ; Waddy vs. Sherman, dc, Jeflf. E. 5. A wilL was dated in 1802. The testator died in 1815. One of the administrators de bonis non with the will annexed, conveyed his property in trust to indemnify his sureties on the administration bond. Creditors of the decedent brought a bill to subject to pay- ment of their debts a fund, in the hands of a trustee, derived from the sale of the land conveyed to him in trust by the administrator to indemnify the sureties. The legatees not having been heard from from 1815 to 1827, the time of bringing the suit, were not deemed necessary parties. Jones vs. Lachland, 2 G-rat. 81. In a creditor's suit for the payment of his debt, the residuary legatee need not be made a party with the executor {Peacock vs. Monk, 1 Vez. 131), nor need he be made a party when the pur- pose is to obtain from the executor a sum of stock which had been sold by the deceased during his life. Brown vs. Dowthwaite, 1 Mad. 448; Story's Eq. Pi. 140, n. See Oalv. Part. 20, 21, 172. Legatees sued the personal representatives of a sheriff, of his deputy, and of his official sureties. There was a decree first against the representatives of the sheriff and of the deputy for the balance found due, and a, fieri facias on this decree was returned nulla bona testatoris. It was held not to be necessary to direct ac- counts of administration by the representatives of the sheriff and deputy to ascertain whether they had committed a devastavit before proceeding to decree against the sheriff's sureties ; and it was also held that it was not necessary, before decreeing against the sureties of the sheriff, to make the heirs of the sheriff and of his deputy parties to ascertain whether any real estate descended to them. JDabney's adm'or c£ als. vs. Smith's legatees, 5 Leigh 13. In a suit by a judgment creditor to subject land in the hands of a bona fide purchaser from the vendee, pending the suit the pur- chaser dies. His heirs are necessary parties. Taylor vs. Spindle, 2 Grat. 44. A judgment creditor, under the act 5 Geo. 2nd, ch. 7, sec. 4, might file a bill in equity against the executors and devisees to sub- ject the real and personal estate to the payment of his debt. Suckley vs. Botchford, 12 Grat. 60. In a suit by residuary legatees against the executor for a distri- bution of the estate the specific legatees should be made parties, unless it satisfactorily appears that their legacies have been satis- fied. Nelson vs. Page, 7 Grat. 160. All the sureties of an executrix should be parties to a suit by legatees for distribution, or a sufficient reason should be shown for failing to make them parties before a decree is made against one of them. Sutcherson vs. Pigg, 8 Grat. 220. See Taliaferro vs.. 26 202 DEFENCE TO SUITS IN EQUITY. Thornton, 6 Call. 21 ; Story's Eq. Jur., § 161, 162, 169 ; Prim/rose vs. Bromley, 1 Atk. R. 89. One of two administrators who had taken no active part in the administration of the estate of an intestate died ; his administra- tor was not a necessary party to a bill by the distributee against the other and active administrator for an account of his adminis- tration. Wills vs. Dunn, 5 Grat. 384. Nor was it necessary to make the personal representative of the widow of the intestate a party, she having received her third of the estate and having died, and the suit being by the only child of the intestate to recover his proportion of the estate from the administrator. Ibid. In general, one distributee cannot maintain a suit to recover his distributive share of the estate without making the other distribu- tees parties. Sillings vs. Bwmgardner, 9 Grat. 273. The widow is a necessary party to a suit for partition of land by the heirs. Onstis vs. Snead, 12 Grat. 260. See p. 65 ante. All persons having an interest, or color of interest, in the residuum of an estate must be parties to a suit in which the court is to decide upon the construction of the will affecting that residuum. Osborne vs. Taylor, 12 Grat. 17. Tarr vs. JRavenscroft, 12 Grat. 642, was a bill by a residuary legatee against an administrator, with the will annexed, and his sureties, William Tarr and John Hendricks, the administrator being insolvent. Campbell Tarr, the son of William Tarr, had re- ceived assignments of a number of the legacies and claimed them as his own, but Hendricks insisted that they belonged to William Tarr, and were purchased at a large discount, the benefit of which he was entitled to share. Hendricks further insisted that Camp- bell Tarr should not be paid these legacies until William Tarr, or William Tarr and Campbell Tarr, should file a cross-bill against him and thus give him an opportunity to contest Campbell Tarr's right. If Campbell Tarr was not entitled to the legacies he was entitled to compensation for purchasing them up. The Court held that Campbell Tarr was a proper defendant to the original bill to have his right to the legacies settled. When it is sought to charge the heirs of an intestate on the bond of their ancestor, his personal representative is a necessary party in order that the personal assets may be applied in their relief as far as they will go. Beall vs. Taylor, 2 Grat. 532. See Story's Eq. PL, § 172, When the suit is by a creditor against an executor and legatees, if it appear that the executor has wasted the estate of his . testator by delivering it over to the legatees, a decree may be rendered against him personally for the amount of the judgment at law. Sampson vs. Payne's ex'or do., 5 Munf. 176. A creditor by bond specially binding the heirs of his debtor, brought a suit in the State Court, against the heirs to subject the lands descended to the debtor. It appeared that the lands had DEMUEEER FOE WANT OF PARTIES. 203 been previously sold under a decree of the United States Court to satisfy the debt of the ancestor to the United States as collector of customs. The purchasers under the decree of the United States Court, were held to be necessary parties to the suit. King, adm'or, do., vs. Ashley, 5 Leigh 408. See Buffners vs. Lewis, 7 Leigh, 720, cited ante p. 126, note. A bill to marshal assets and for administration should be in behalf of all the creditors, and the heirs and devisees should be parties. ■Stephenson vs. Tavemers, 9 Grat. 398. When all the legatees, having obtained a decree in favour of all ascertaining their rights, may unite in one suit to enforce the former decree. Sheldon vs. Armistead, 7 Grat. 264. Partnership. See 2 Eob. Pr. fold) 128, 129, 130. Code 1873, ch. 141, § 13. 2 Lom. Dig. (old) 114. In a suit for settling the accounts of a partnership, every part- ner should be made a party. Waggoner vs. Oram's adm'ors, 2 H. & M. 603. And if a creditor of a firm file a bill against the executor of a deceased partner and against the surviving partner, and the latter die pending the suit, it should be revived against iis executor or administrator. Carter's ex or vs. Ourrie, 5 Call 158. See Calv. on Parties, 156, 260 et seq. 121, also Code 1873, ch. 114. The creditor of a firm obtains judgment against the surviving partner, who dies and his personal assets are exhausted by credi- tors in paying other claims. The creditor files a bill against the administrators and heirs of the surviving partner and the represen- tatives of the deceased partner. The bill seeks a decree for the sale of lands owned by the surviving partner and the firm; ■and when this fund is exhausted, seeks to charge the representa- tives of the deceased partner. The representatives of the deceased partner were rightly made parties. Jackson vs. King's representa- tives, 8 Leigh 689. To a suit by a partnership creditor for payment of his debt, the heir as well as the executor of a deceased partner may be made a defendant with the surviving partner. Calv. on Parties 166. Vulliamy vs. Nolle, 3 Mer. 619. Ex parte Kendall, 17 Ves. 526. ■See Dahney vs. Preston's adm'or, 25 Grat. 838. Suretyship. It becoming necessary to go into equity against a •co-surety, though the surety might have maintained a suit at law against the principal alone, the suit in equity by the surety against the principal and the co-surety was sustained as to both, and the demurrer of the principal debtor to the surety's bill was overruled. Trescot vs. Smyth, dc, 1 McCord's Ch. Eep. 301. ■ In a suit by a surety against the representatives of a co-surety to which the principal is not a party, there will be no decree for 204 DEFENCE TO SUITS IN EQUITY. the plaintiff unless it appear that due diligence has been used against the principal, or that he is insolvent. McCormach's adm'or vs. Ohannon's ex'or <£ devisees, 3 Munf. 484. See Mo- Mahon vs. Fawoelt, <£c., 2 Ran. 531. If the principal had been a defendant in the suit, together with the co-surety, it would have been competent to the Court to decree in favor of the plaintiff against his co-surety as it could at the same timS direct payment to that co-surety from the principal. Lawson vs. Wright, 1 Cox's Oh. Cas. 275. In a bill by a surety, whose principal is dead, to compel his executor to pay the debt the creditor is a necessary party. Stephens&n vs. Taverners, 9 Grat. 398. Several persons endorsing negotiable paper in succession are not considered as joint sureties. See Farmers Bank vs. Vanmeter, i Band. 554. A guardian, having given bond with sureties, afterwards comes into court, without a rule upon him or order of court, and gives another bond with other sureties ; the sureties on the first bond are discharged and are not necessary or proper parties to a bill by a ward against the guardian and his sureties for the settlement of his accounts. Bayers vs. Cassell <£ als., 23 Grat. 525. Suit by sureties of an executor against the purchasers of assets of the estate, the purchasers being participant with the executor in the devastavit, the sureties who were charged with the devas- tavit of their principal had a right to sue them, and they were proper parties. Jones vs. Clark <£ als., 25 Grat. 642. See Hoffman vs. Shields, 8 W. Va. 82. Assignments. In Burnett, do., vs. Harwell <£c., 3 Leigh 95, it was said by Tucker, P., that if the assignees of the decree for which that action was brought, had sued in equity, their assignor would have been a necessary party. There is no doubt that according to the ancient practice of the English Court of Chancery, the assignor of a chose in action was a necessary party to a bill to recover the amount. 2 Eob. Pr. (old) 272. See Catheart vs. Lewis, 1 Ves. Jr. 463, Mitf. PI. 179. This subject was examined by Chancellor Walworth, in the case of Ward vs. Van Bokhelm, de.,. 2 Paige 289, and he came to the conclusion, that where there is an absolute assignment in writing, if there be nothing in the pleadings or proofs to induce the belief that the assignor has not parted with all his interests in the subject of the suit, it is an unnecessary and useless expense to make him a party. The true principle is doubtless as he states it. In all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied and there is no remaining liability in the assignor to be affected by . DEMURRER FOR WANT OF PARTIES. 205 the decree, it is not neoeseary to make the assignor a party. •Story's Eq. PI. 153, 8 Pet. 532. See Brace vs. Samngton, 2 Atk. 235. Bromley vs. Solland, 7 Ves. 14. See Millar vs. Bear, 3 Paige 467, 468. Whitney vs. McKmney, 7 John Oh. R. 144, and Newman vs. Chapman, 2 Rand 93. 2 Rob. Pr. (old) 272. In James River and Kanawha Company vs. lAttlyohn, 18 Grat. 53, the court held that the assignor in such a case was not a necessary party. See Mtch vs. Oreighton, 24 How. 159. Gaines vs. Sermon, Id. 553. Where a person had assigned a bond secured by a deed •of trust upon land, the assignment being absolute, in a suit by the assignee against the vendee of the obligor to subject the land to satisfy the debt, the assignor was held not to be a necessary party. Omohundro vs. Senson d als., 26 Grrat. 511. The mere possession of a writing by which a debt is acknowl- edged, without any written agreement from the person to whom that acknowledgment was made, is not sufficient to sustain a bill. In such case the person to whom the debt was originally due must be made a party to the suit. Auditor, <£c., vs. Johnsons exix, 1 H. and M. 536. See Corhin vs. Emerson, 10 Leigh 668, 2 Rob. Pr. (old) 272. In a suit against a corporation which has assigned all its stock and property to a successor, sometimes a creditor may prosecute his own claim against the corporation without convening all the credi- tors. Such a case was Barhsdale vs. Finney, 14 Grat. 338. In _ that case it was also decided, that the creditors of H., to whom the " successor of the corporation had contracted to pay an annual rent, were not necessary parties. An assignee should be made a party to a suit, the object of which is to set aside a deed of trust under which he claims. Tichenor vs. Allen, 13 Grat. 15. • If a debtor, who has been discharged under the insolvent act, claim an interest in part of his property which has been sold by the sheriff, his scheduled creditors are necessary parties. Tiffany vs. Kent, 2 Grat. 231. See Gannon vs. Welford, Judge, 22 Grat. 195 ; Berger vs. BueTc- land d als., 28 Grat. 850. H., a surviving partner, and the personal representative of P., the dead partner, in the firm of H. & P., brought suit against one D. to enforce a contract with the partnership. It appeared that H. had assigned all his interest in the firm to the firm for proper settlement of accounts and, after paying all he owed the partner- ship, the residue to 0. H. became bankrupt. Held that for a decree against D. both the assignee in bankruptcy of H., and 0., were necessary parties. Dahney vs. Preston's adm'ors, 25 Grat. 838. In a suit by G., the assignee of two bonds given for the purchase- money of land, against the executors of the purchaser to subject 206 DEFENCE TO SUITS IN EQUITY. the land to the payment of the honds, the executors answer and say, that 0. has sued them to establish a prior lien on the land, that all the purchase-money has been paid, without notice of this prior lien, except the two bonds held by G. and one held by S., and they insist that they are entitled to have O.'s lien credited on the bonds held by G. and S. ; S. is a necessary party to the suit and no decree should be made in the cause until he is made a party. And it was held, also, that the objection might be taken at the hearing or even in the appellate court. Armentrout's ex'ors vs. CHihons, 25- Grrat.-371. In Richardson vs. Davis, 21 Grrat. 706, S. assigned his life policy to E. for the benefit of S.'s wife and her children ; he afterwards conveyed the same policy by deed to E. in trust for his wife and her children by him, but if she died without children the principal to be paid to S.'s children by his first wife. In a suit by the widow of S., and her infant son against E., who had acted under the deed, it was held that the children by the first wife were necessary parties. L. buys land of D. and T. and gives to each his bonds for his share of the purchase money. Afterwards the contract is rescinded, but before this is done D. assigns one of his bonds. On a bill to enjoin a judgment recovered on this bond by the assignee, T. is not a necessary party. Drake vs. Lyons, 9 Grat. 54. It is a question constantly recurring in all courts of equity how ■far one who is a party to the contract, but who has assigned his interest, is a necessary party to a suit afiecting the subject matter of the contract. The rule is perfectly undeviating that no person need be joined in a suit in equity, either as plaintifi' or defendant, upon the ground merely of having been a party to the contract if he is no longer interested in the controversy. But there are some cases where a party still remains liable to certain consequences growing out of the contract and where the suit will have a bearing upon such liability ; and in such cases it becomes necessary to make him a party to the suit. In all other cases the assignor of an in- terest in the contract is not a needful or proper party. Story's Eq. PI. (by Eedfield) note (1) to § 153. See Mtch vs. Oreighton, 24 How. 159 ; Oaines vs. Sinnen, Id. 553. An objection to the joinder of an assignor with an assignee as complainant in a bill comes too late on an appeal. Livingston vs. Woodworth, 15 How. 546. See Willard vs. Tayloe, 8 Wal. 557. AwABD. Suit by next of kin to impeach an award. Moore vs. LucJcless's next of kin, 23 Grat. 160. Husband and wife. A husband may sue the wife or the wife DEMUEEER FOE WANT OF PARTIES. 207 the husband in equity, though at law neither can sue the other. See Cannal vs. Buckle, 2 P. Wma. 243, Mitf. PI. 28, Story's Eq, PL 61, 62. In suits by the wife for her separate property, she should sue as sole plaintiff by her next friend, and the husband be made a party defendant. Story's Eq. PI. 63. A feme covert, if her husband is banished or has abjured the realm or has been transported for felony, may maintain a suit in her own name as if she were &feine sole. Mitf. Pi. 28, Story's Eq. PI. 61. If the husband is an -alien enemy, the wife domiciled in the realm, may sue alone. 1 Salk. 116, 1 Ld. Eay 147, 1 Aikens 174. So where the husband has deserted his wife in a foreign country, and she comes here and maintains herself as a, feme sole. Qregory vs. Paul; 15 Mass. 31. See also note (4) to § 61, Story's Eq. PI. In a bill by a husband to restrain proceedings commenced ,at law against husband and wife, for the purpose of affecting her interests, she is a necessary party. Booth vs. Alhertson, 2 Barb. Oh. 313. A bill to recover a legacy or distributive share to which the wife is entitled should be filed in the names of husband and wife. Schuyler vs. Hoyle, 5 John. 0. R. 210. And if the husband die pending the suit, it will be sufficient to suggest his death on the record, and then the cause will proceed in the name of the wife. McDowl (& wife vs. Charles, 6 John. 0. R. 132. Where the wife dies, living the husband, and then the husband dies without administering on the personal estate of the wife, Lord Hardwick held that the husband's representative was entitled to the wife's personal estate and might bring a bill to recover the same. Elliot vs. Gollier, 3 Atk. 526, 1 Ves., Sen. 15 ; Sumphrey vs. Bullen, 1 Atk. 458. Lord Hardwicke's decision is cited as authority by Chancellor Kent in Stewart vs. Stewart, 7 John. 0. R. 244, and is referred to in Chichester's ex'ix vs. Vass's adm'or, 1 Munf. 115, and in Templeman vs. Fauvileroy, 3 Rand. 139. In the latter case, however, the judge who cited the decision went only so far as to intimate that the executor of the husband, who had not adminis- tered, might sue in equity for a debt from the guardian of the wife if it appeared that she married in her infancy, and there was no suggestion of her having contracted debts; "that being," in the language of the judge, " the only reason why a husband need in any case administer." See Hendren vs. Colgin, 4 Munf. 281, 234, 235 The effect of the Statutes, Oode 1873, ch. 119, § 10, and Seas. Acts 1874-5, chap. 359, pp. 442, 443, Sess. Acts 1876-7, p. 49, and Sess. Acts 1876-7, p. 333, and Sess. Acts 1877-8, p. 247, should be considered in this connection. In Tazewell d als. vs. Smith's adm'or, 1 Rand. 313, a/ejwe covert 208 DEFENCE TO SUITS IN EQUITY. "was entitled to the proceeds of land devised to be sold, and the ■wife died pending a suit brought by husband and wife in which they claimed to discharge the executor from the necessity of selling, and elected to take the land itself. In this state of affairs it fieemed to the court that the heirs of the wife should be made parties. It was important to them to inquire whether the election nad any operation in favor of the wife in restoring the land to its original character as land, and whether her rights therein had not •descended to them. See Pratt vs. Taliaferro, 3 Leigh 419. When the right of the wife, legal or equitable, appears against the husband, it is the duty of the court, elc-officio, to protect the wife from any injurious effects arising from the acts or admissions of the husband. And it is sufficient for the right of the wife to ap- pear clearly in the record. It is not necessary that the point should be formally insisted on in the pleadings or proceedings in the cause. Dandridge, do. vs. Minge, 4 Eand. 367. Even where the wife is a joint plaintiff with her husband she is not bound by any proceedings or admissions in the cause by the husband, if such proceedings or admissions affect her inheritance. A bill by hus- band and wife is regarded as the husband's suit only, and the wife is joined for conformity, to be bound only so far as in justice she ought to be bound. Dandridge, da. vs, Minge, 4 Rand. 367; Story's Eq. PL, § 61, 68. See Wake vs. Park&r, 2 Keen 59, 70, 73-75. See Sess. Acts 1874-5, chap. 359, pp. 442, 443. An action or suit may be maintained against the husband and wife jointly for any debt of the wife contracted before marriage ; but the execution on any judgment or decree in such action or suit shall issue against, and such judgment or decree shall only bind, the estate and property of the wife which she shall own at the time of the marriage, or acquire subsequently thereto, and not that of the husband. Sess. Acts 1874-5, chap. 359, § 3, p. 443. See also Sess. Acts 1875-6, chap. 58, p. 49. In a suit brought by a trustee of a married woman to assert and- defend her rights, in which a full opportunity is afforded the cestui que trust to protect her rights, it is not necessary that she should be made a party. Woodson, trustee vs. Perkins, 5 Grat. 345. M. was, administrator of husband and wife, and it being doubt- ful whether the right to a fund was in the estate of the husband or of the wife, he sued for it, in equity, in both characters. The bill was held not to be demurrable for misjoinder of parties. Brent ■vs. Washington's adm'or, 18 Grat. 526. When the husband is not within the country, so that process cannot be served upon him, the suit, if against the wife to charge her separate estate, may be carried on without him, with the leave and under the direction of the court. Mitf. PI., 105 ; Story's Eq. PL 63. DEMURRER FOR WANT OF PARTIES. 209 When a surviving husband of one of the heirs is a proper plain- tiff in suit for partition. Persinger vs. Simmons <& ok., 25 Grat. 238. Whether, in any case, a married woman may sue or be sued by a stranger merely in respect to her separate property, without her husband being a party, plaintiff or defendant, is a question dis- cussed in 1 Fonb. Eq., B'k 1, oh. 2, § 6, and Story's Eq. PI. 63, and notes. Dower. In a bill by a widow for dower in land sold in the life- time of her husband and coming to the present owner through several intermediate conveyances, the present owner is the only necessary defendant. Blair vs. Thompson <& als., 11 Grat. 441. The dower of a widow in the land of her husband is assigned to her, and upon bill filed the other two-thirds of the land are divided among ten of the twelve heirs (the other two refusing to bring their advancement into hotchpot) ; upon the death of the widow the heirs who refused to come into the first division may come into the division of the dower property, and one of the chil- dren who had refused to come into the first division having died after the death of the widow, the husband of such child was a proper party plaintiff for a division of the dower land. Persinger d als. vs. Simmons d als., 25 Grat. 238, Idiots AND LUNATICS. It is not necessary for the lunatic him- self to be a party plaintiff with his committee to set aside an act done by him while under mental imbecility. Whether he be joined or omitted seems immaterial, according to the cases cited in Ortly, <£c.\a. Messere, dc.,.1 John. 0. E. 139; 2 Eob. Pr. (old) 273. See Code 1873, ch 82, § 48, p. 723. Story's Eq. PL, 64, 65, 66, and § 70, n. 5. Mitf. PL, 29. See Polling vs. Turner, 6 Rand. 584, and Campbells vs. Prown's adm'or, do., 1 Rob. R. 241. Where no committee of a lunatic has been appointed, or where the committee appointed has been removed, or a committee has interests adverse to the lunatic, a suit may be brought in the name of the lunatic by his next friend, approved by the court. Bird's committee vs. Pird, 21 Grat. 712. See note (2) to § 64 Story's Eq. PL Idiots and lunatics defend a suit by their committees, ■who are by order of court appointed guardians ad litem for that purpose, as a matter of course, in ordinary circumstances. Mitf. PL, 104. Story's Eq. PL 70. A person other than the committee may be appointed guardian ad litem. Ibid. Specific performance. The vendee or his legal representa- tive ought to be made a party to a suit brought by the vendor against a subsequent purchaser from the vendee to recover a 27 210 DEPENCE TO SUITS IN EQUITY. balance of purchase money, alleged to be due from the vendee., Buval vs. Bibh, 4 H. & M. 113. Where the vendee has died without being able to recover the land sold him, and an action at law is brought against his adminis- trator upon the bond given for the purchase money,>thp adminis- trator and not the heir of the vendee, will be the proper plaintiff in a suit brought to enjoin the vendor from recovering the purchase money, if a discharge from the obligation to pay such purchase money is all that is sought. Bullitt's ex'ors vs. Songster's admors, 3 Munf. 54. But if the representatives of the vendee claim compensation for a deficiency, credits for payments and a convey- ance, and both vendor and vendee have died, the bill should be by the heirs as well as the administrator of the vendee against the administrator and heirs of the vendor, so that the court in allow- ing the compensation and credits, may decree a conveyance from the heirs of the vendor to the heirs of the vendee. In Humphrey's^ adrn'or vs. McOlenachan's adm'or, dc, 1 Munf. 493, there was a failure to make the heirs of the vendee parties ; and the court to get over the difficulty which this omission caused, was compelled to pronounce a decree somewhat anomalous. See also Champion, dc. vs. Brown, 6 John 0. R. 410; 2 Rob. Pr. (old) 273-4. If a bill is brought by a vendor to compel specific performance, the purchaser being dead, the personal representative is a necessary party, because the personal assets are primarily liable for the debt. Townsend vs. Champerdown, 9 Price 130. If the. bill farther seek to enforce the lien for the puchase money on the land itself, the heirs of the purchaser, if it is intestate estate, or the devisees, if it is devised, are necessary parties, and the personal representative also ; for the heirs and devisees are entitled to relief over and to indem- nity from the personal assets. Smith vs. Hibhard, 2 Dick. 730. If the purchaser should die and specific performance be sought against the vendor, by the heirs of the purchaser, it is necessary to make the personal representative of the purchaser a party, for the heirs are entitled to have the contract primarily paid or discharged out of the personal assets. Champion vs. Brown, 6 John. C. R. 402.'» If the vendor should die, and his personal representative seek a specific performance against the purchaser, the heir or devisee of ^ But where a mortagee brings a bill to foreclose the mortgage against the heir of the mortgagor, although the mortgage is primarily a debt charged upon the personal assets, yet it is not necessary to make the personal represen- tative of the mortagor a party. Story's Eq. PI. 175. If the heir would have the benefit of having the personal estate applied in exoneration of the real, he must enforce that right by filing a bill. Duncombe vs. Sanstey, cited 3 P. Wms. 333, Mr. Cox's note (A.) DEMUKRER FOR WANT OF PARTIES. 211 the vendor should also be made a party to the bill. Roherts vs. Marehant, 1 Hare. 547 ; Morgan vs. Morgan, 2 Wheat. 297, 298.. See Mott vs. Carter's aclm'or, 26 Grat. 127. It seems now to be established that where an assignee of the vendee sues for a title, the vendor need not be a party if he has parted with all his rights and there is written evidence of the fact. Edgar vs. Donally, do., 2 Munf. 387; Mayo vs. Murchie, 3 Munf. 358; Pennington vs. Hanly, (&c., 4 Munf. 140. This rule was acted on where the suit was not against the vendor, but against one to whom the vendor had conveyed by order of the vendee ; the defendant being a purchaser with notice of the plaintiff's claim. Lambert vs. Nanny, 2 Munf. 196 ; 2 Eob. Pr. (old) 274. In Willard vs. Tayhe, 8 Wal. '557, the purchaser of land had assigned a part interest in the contract to another, and afterwards "brought a bill for specific performance in his own name alone. The court decided that the non-joinder of the assignee of the part interest in the contract, presented no obstacle to the decree sought in favour of the original party to the contract. See JJasker vs. Small, 3 M. & Orai§. 69 In a bill for specific performance against a husband for the sale of an estate to the plaintiff, the wife is not a proper party merely because she claims the purchase money and has taken forcible possession of the title deeds and refuses to part with them. Muston vs. Bradshaw, 15 Sim. 192. Foreign attachment. Where there are two obligors, one of whom is in and the other out of the State, and a suit is brought against the absent defendant, the other obligor should be made a party. For if they be joint debtors the absent defendant is entitled to the aid of his co-obligor as well in the defence as in bearing the burden of the decree ; and if the absent defendant be the surety of his co-obligor he will be entitled to a decree against that co- obligor. Loop vs. Bunvmers, 3 Eand. 511. In a creditor's suit by foreign attachment or to marshal assets against heirs residing abroad, the lands having been sold under a decree at the suit of the heirs and the proceeds being in the hands of a commissioner, he should be a party to the creditor's suit as such commissioner, his being a party as administrator of the deceased debtor is not enough. Carrington d als. vs. Lidier, Norvell d Co., 8 Grat. 260. And if he is not made a party as commissioner and has in fact no knowl- edge of the object of the creditor's suit, and pays over the proceeds of sale to the heirs under the order of the court whose commis- sioner he was, he will not be affected by the lis pendens of the- creditor's suit so as to be held liable to pay the money over again to the creditor. Ibid. A. and B. made their bond to C. and it was left in the hands of A. as the agent of 0. A. forged an en- dorsement of it in O.'s name to D. E. sued 0., a non-resident, and. 212 DEFENCE TO SUITS IN EQUITY. attached the money due by the bond and got a decree for its pay- ment. D. sued B., one of the obligors, in O.'s name for his (D.'s) benefit. Thereupon B. sought to enjoin the suit. Held that E., the attaching creditor of C. or his representative, was a necessary party to B.'s suit. Jameson vs. Deshields, 3 Grat. 4. Patent foe land. When the object of a bill is to prevent the issuing of a patent by the Register of the Land Office, the Register is a proper party in order to effectuate the relief that is to be decreed. Lyne, do. vs. JacJcson, do., 1 Eand. 119. On a bill to set aside a patent on the ground that it was obtained with a knowledge of a prior entry, the patentee or his representa- tive must be before the court ; and if the patentee is assignee of the pereon who made the second entry with knowledge of the first, then both or their representatives are necessary parties. Hagan, do. vs. Wardens, 3 Grat. 315. If a person who makes an entry on land has knowledge of a previous entry and he assigns his entry to a third person who ob- tains a patent, the person making the entry, as well as the patentee or their representatives, must be made parties to a suit which seeks to set aside the patent. Hagan vs. Warden, 3 Grat. 301. Officee neglecting duty. The officer who returned the writ and bail bond ought, as well as the plaintiff at law, to be made a party defendant to a bill of injunction filed by the person returned as bail, who denies that he had executed the bond, for the officer is interested in the question in controversy and should be a party, that final and complete justice may be done. Spottswood vs. Hig- ginhotham, 6 Munf. 813. Justices who appoint a guardian and take insufficient security from him are not proper parties to a suit for the settlement of his guardian account, nor is the clerk taking such bond a proper party. Austin vs. Richardson, 1 Grat. 810. Feaud. a deed of trust purporting to indemnify one of the parties as to whom the deed is charged to be fraudulent as surety of the grantor for certain debts due to specified creditors, these creditors, as well as those creditors secured directly by the bill, are necessary parties. Billups vs. Sears, 5 Grat. 31. To a bill to set aside fraudulent conveyances made by an insol- vent debtor, the trustees and cestuis que trust in the deeds, the sheriffs of the counties in which the lands lie, and the execution creditors interested in the property should be parties. Clough vs. Thompson, 7 Grat. 26. A bill is filed to subject lands to the satisfaction of a judgment after the death of the debtor, and charging fraud in certain con- DEMUERER FOR "WANT OF PARTIES. 21S veyances by the debtor to his son. The son having conveyed some of the lands to third persons, all such persons must be made parties to the cause. Senderson vs. JSenderson, 9 Grrat. 394. A defendant, in anticipation of a judgment in an action ex delicto, transferred bonds and conveyed his distributive interest in the personal and real estate of his father to avoid payment of the judgment; a bill was filed to subject the property to the judgment. To this bill it was held the obligors in the bonds should be defen- dants and the decree should go against them respectively for the amount due from each, if the same was still liable to. satisfy the plaintiff's judgment. Oreers vs. Wright, 6 Grat. 154. Vendor and vendee. See pp. 193, 194, ante. L. buys land of D. and T. and gives to each his bonds for his share of the pur- chase money. The contract is afterwards rescinded ; but before this is done D. assigns one of the bonds. On a bill to enjoin a judg- ment on this bond by the assignee, T. is not a necessary party. Drake vs. Lyons, 9 Grat. 54. In a suit to recover a tract of land against a vendee on the ground that the vendor had previously agreed to convey the same land, in a certain event, to the plaintiff, the vendor or his legal representatives should be parties. Lewis vs. Madisons, 1 Munf. 303. In a suit for the sale of infant's lands, a sale having been made and confirmed and a conveyance made to the purchaser, the purchaser must be brought before the court as a party before the court will inquire into the validity of the sale. London vs. JEchok, 17 Grat. 15. Suit to subject land to payment of purchase money ; when prior lien-holders necessary parties. Armentrout's exors vs. Qibhons, 25 Grat. 371. McClintic vs. Wise's adm'ors, 25 Grat. 448. On a bill by the administrator of a vendor of land against a vendee who has not received a deed to subject the land to pay the purchase money, the heirs of the vendor should be made parties. Mott vs. Carter's adm'or, 26 Grat. 127. See Stimson vs. Thorn, 25 Grat. 278 — suit to rescind a contract of exchange of land. Trust deeds. See p. 196, ante. Story's Eq. PL, §§ 207-217. Though a deed of trust secures creditors in several classes, one or more may sue for the benefit of all, to have the trusts executed when the trustees refuse to act. Reynolds vs. Bank of Vi/rginia, 6 Grat. 174. One creditor, secured by a deed for the benefit of all the credi- tors, cannot maintain a bill for the account of the fund without making all the creditors who are preferred and all who are in the same class with himself, parties, either as plaintiffs or defendants. 214 DEFENCE TO SUITS IN EQUITY. Murphy vs. Jachson, 5 Jones Eq. 11. And it would seem that all the creditors should be made parties to the account as all are inter- ested in the fund. Story's Eq. PI. 219, a. Upon a bill to set aside a deed of trusb to secure a debt, an as- signee of the debt is a necessary party ; and the debtor and trustee in their answers stating that the debt has been assigned to a certain person, the plaintiff should be required to make him a party if, upon a rule for the purpose, it appears he is such assignee, Tichenor vs. Allen, 13 Grat. 15. A deed of trust purported to indemnify one of the parties as to whom the deed was charged to be fraudulent as surety of the grantor for certain debts due to specified creditors, these creditors as well as those secured directly and whose debts were not assailed by the bill, were held to be necessary parties. Billups vs. Sears, 6 Grat. 31. To a bill to set aside fraudulent conveyances made by an insol- vent debtor, the trustees and cestuis que trust in the deeds, the sheriffs of the counties in which the lands lie, and the execution creditors interested in the property should be parties. Ghugh vs. Thompson, 7 Grat. 26. In a bill to recover trust property sold by trustee and for an ac- count, the trustee is a necessary party. McDaniel vs. Bashervill, 13 Grat. 228. In Jones vs. Tatum, 19 Grat. 720, a purchaser at a judicial sale objected, after confirmation of the sale, that a trustee had not been made a party to the suit. The court refused to set aside the sale at the instance of the purchaser. S. makes an assignment -of a policy of insurance on his life to E. for the benefit of the wife of S. and her children. A few days afterwards he conveys the same policy to K. in trust for his wife and her children by him ; but if she died without children, the principal to be paid to S.'s children by his first wife. The widow of S. and her infant son file a bill against R. claiming the insurance under the assignment. R. answers and says that he acted under the trust deed, and insists that the children of S. by his first wife are necessary parties. There is a decree on the merits against R. and he appeals. The children of S. by his first wife are necessary parties and the appellate court will reverse the decree for this error, without passing upon the merits. Richardson vs. Davis, 21 Grat. 706. See Clarh vs. Long, 4 Rand. 452, Collins vs. Lofftus <& Co., 10 Leigh 5, and Commonwealth vs. Bielcs, 1 Grat. 416. When a creditor in a trust deed a necessary party. Kendrich -d als. vs. Whitney <& als., 28 Grat. 646. As to the frame of a suit by a cestui que trust, in respect of claims against strangers, as debtors, or liable to the trust, by reason of the misconduct of the trustees, or parties to whom the DEMUEEER FOR "WANT OF PARTIES. 215 stranger is primarily liable, see Lund vs. Blanchard, 4 Hare, 28. Story's Eq. PL § 211, note. Where there are several trustees who are implicated in a common breach of trust, for which the cestui que trust seeks relief in equity, it is laid down in a book of authority, that the cestui que trust may bring his suit against all of them, or against one of them separately, at his election. Story's Eq. PI. 213, citing Walker vs. ■Symonds, 3 Swanst 75, and other cases. But this doctrine has been strongly denied. See Munch vs. Cockefrell, 8 Sim. 219. Scheduled creditors under a creditors' deed, who were not parties thereto have been held not necessary parties to a suit by a subse- ■quent incumbrancer to have the moneys out of which it was intended to pay such creditors raised, the trustees being parties. Fowell vs. Wright, 7 Beavan 444. Insolvent debtor. If a, debtor who has been discharged under the insolvent act, claim an interest in part of his property, which has been sold by the sheriff, his scheduled creditors are necessary parties. Tiffany vs. Kent, 2 G-rat. 231. Judgment debtor. Gr. recovers a judgment against R. and upon a suggestion, obtains a judgment against S. Upon a bill by Gr. against S.'s executrix to have payment out of his estate, R. is not a necessary party. Shands's ex'ix vs. Cfrove <£ ak., 26 Grrat. «52. Banking associations and corporations. When creditor of a corporation may prosecute his own claim alone. Barhsdale vs. Mnney, 14 Grat. 338. A creditor of the corporation, B., presenting his claim against the successor of B. is not bound to make the creditors of H. (to whom the successor of B. has contracted to pay an annual rent) parties to the suit. Barksdah vs. Finney, 14 Grat. 338. Holders of stock claiming to have equitable interests in the property of a corporation, (though not proper parties to a suit to annul such corporation, but for holding such equitable interests,) may be admitted as parties defendant in such a suit to protect their rights. Wash., Alex. cS Oeorgetown B. R. Co., vs. Alex. (& Wash. B. R. Co., 19 Grat. 592. A testator gave money to trustees to establish a school, with power to them to fill vacancies in their body. Several vacancies occurring in the board are filled. The trustees may sue to recover the money ; but the school having been incorporated after the suit was brought, the corporation should be made a party and the money should be decreed to be paid to it. Kelly vs. Love, 20 Grat. 124. ' 216 DEFENCE TO SUITS IN EQUITY. GuAEDiAN AND WAED. A guardian is not authorized to file a. bill in his own name to obtain possession of his ward's estate, but must file it in the name of the ward by his next friend. Billings <£ ah. vs. Bwmgardner , guardian, 9 G-rat. 273. In this case the plaintiff being interested as husband of one of the distributees of the estate, the court did not dismiss the suit but permitted the ' plaintiff to amend his bill by striking out the words " guardian of, &o.," (which the court said were mere descriptio personce and did not change the personal charactpr of the suit) and inserting the name of his wife as a co-plaintiff. Ibid, 276. In a suit by a ward against the heirs of his guardian, the sheriff to whom his estate had been committed, his surviving surety and the administrator of his deceased surety, no service was made on a part of the heirs nor on the surviving surety, it was held that no decree could be rendered therein for want of proper parties brought before the court. Bland vs. Wyaii, 1 H. & M. 543. A guardian having, when he was appointed, given a bond with sureties, afterwards, without a rule upon him or order of court re- quiring it, came into court and gave another bond with other sureties. The last bond was held valid and related back to his appointment as guardian and the sureties in the first bond were discharged and were held to be not necessary or proper parties to a bill by the ward against the guardian and his sureties for the settlement of his accounts. Bayers vs. Oassell d ah., 28 Grat. 525. Persons or a class sueing. The difficulty of bringing before the court all persons interested in the subject of a suit has also in- duced the court to depart from the general rule when the suit is on behalf of many in the same interest and all the persons inter- ested cannot easily be discovered or ascertained. Thus a few credi- tors may sue on behalf of themselves and the other creditors of their deceased debtor for an account and application of his assets, real and personal, in payment of their demands. Mitf. PL 166. [If creditors decline to come in and assert their rights, they may be excluded the benefit of the decree and yet considered as bound by acts done under its authority. Mitf. PI. 166.] So some of a num- ber of creditors, parties to a trust deed for payment of debts, have been permittted to sue on behalf of themselves and the other creditors for execution of the trust (Mitf. PL 167) : though in more classes than one, when the trustees refuse to act. Reynolds vs. Bank of Virginia, 6 Grat. 174. So a legatee is permitted to sue on behalf of himself and other legatees. Mitf. PL 167. And so for the application of personal estate amongst next of kin or among persons claiming under a general description as the rela- tives of a testator or other person, when it may be uncertain who are all the persons answering that description, a bill has been ad- mitted by one claimant on behalf of himself and the other persons DEMUEEER FOE WANT OF PAETIES. 217 equally entitled. Mitf. PI. 169. And the necessity of tte case has induced the court frequently to depart from the general rule, when a strict adherence to it would probably amount to a denial of justice ; and to allow a few persons to sue on behalf of great numbers having the same interest. Mitf. PI. 169, 170. See Story's Eq. PL 105, 106, 207, 207 a, 2075. Several captains of vessels were permitted to unite in one bill to enjoin the sale of their vessels engaged in the oyster trade, to test the constitutionality of the act. Johnson vs. Drummond, 20 Grat. 419. Pendente lite pueohasees. While a suit for specific execu- tion of a contract against a purchaser was pending the purchaser conveyed the property in trust to secure a debt. The cestuis que triist were pendente lite purchasers and were not necessary parties ^0 the suit. Goddin vs. Yaughan, 14 G-rat. 102. Persons defending numeeous. The general rule is that the parties though numerous should all be made parties, but when the number of the parties interested amounts to a great practical inconvenience, or positive obstruction of justice, this excuses their being made, all of them, parties. Story's Eq. PI. 95-96. Peeson beyond the jueisdiction of the couet. This-' ordinarily excuses his being made a party, and the court will pro- ceed to a decree without him. Mitf. PI. 164, 31., Story's Eq. PL, § 78. But the rule is not universal. See Story's Eq. PL by Red- field, § 78. Towle vs. Pie)-ce, 12 Mete. 329. Vose vs. Philbrooh, ^8 Story 335. See the doctrine discussed in Story's Eq. PL, § 81-89. Persons unknown. See Story's Eq. PI. 90, 92, 93. Remaindeemen. When not necessary parties. Bwm/mefrs vs. Bean, 13 Grat. 404. Cooper vs. Hepburn, 15 Grat. 551. Dooteine of eepeesentation. Oommonwealth vs. Levy d ah. ,. 23 Grat. 21. Calvert on Parties 19, et seq. Baylor vs. D^ arneiie., 13 Grat. 152. See as to protection afforded cestuis que trust by answer of trus- tee. Johnston vs. Zane, 11 Grat. 552. Debtoe to debtor. See Practical Note on the Doctrine of Parties in the United States Courts. Collusion. Certain persons proper parties by reason of col- lusion. Calv. on Part. 157. 28 218 DEFENCE TO SUITS IN EQUITY. Miscellaneous. As a general rule, the court will at any time' before the hearing, grant leave to amend where the bill is defective as to parties, or in the mistake or omission of any fact or circum- stance connected with the substance of the bill or not repugnant thereto. The amendment may be made by common order before answer or demurrer, and afterwards by leave of the court. Solland d wife vs. Trotter, 22 Grat. 136. Mere interest in the question arising out of a collateral liability, does not make one a necessary party. Austin vs. Richardson, 1 Grat. 310. In a suit brought by the trustee of a married woman to assert and defend her rights in which a full opportunity was afforded to the cestui que trust to protect her rights, it is not necessary that she should be made a party. Woo6l:Son, trustee vs. Perhins, 5 Grat. 345. It is not necessary in a suit against a surviving obligor, to make parties the personal representatives of two deceased insolvent obligors. Montague vs. Ikrpin, 8 Grat. 453. In a suit by the creditor of a tenant for life (with remainder in fee to his oldest son living at his death,) to subject the land, the life tenant represents the fee and it is not necessary to make a son born pending the suit a party. Baylor vs. Dejarnette, 13 Grat. 152. See Faulkner vs. Davis, 18 Grat. 651. Pendente lite purchasers are not necessary parties. Ooddin vs. Yaughwn, 14 Grat. 102 ; Price vs. Thrash, 30 Grat. 515. When in a suit in equity against a corporation to have it declared null, stockholders are not proper parties. Wash. Alex. (& O. R. R. Co., vs. Alex. <& Wash. R. R. Co., 19 Grat. 592. If the stock- holders have equitable interests in the property, they may be admitted as party defendants to protect their interests. Ibid. In the Commonwealth of Virginia vs. Levy d als., 23 Grat. 21, Levy in his will gave property to the people of the United States in trust for the establishment of a school, and if the U. S. declined, then on the same trusts to the State of Virginia. The executors of L. instituted a suit in New York, asking for instructions in the administration. To that suit, the U. S. were parties. Held, that the decree in that suit was conclusive upon Virginia, though she was not a party to the suit. In three actions of debt pending between the executors of W. L. as plaintiffs and N. G. M. as defendant, an agreement for submis- sion to an award was made. The arbitrators intended to decide ■ the case according to law, but had mistaken it and so had erred. The executors declined to oppose the confirmation of the award. The next of kin of W. L. filed their bill in equity to correct ■ the error. Held that the court of equity had jurisdiction and that the next of kin might maintain the suit. Moore vs. Luckess' next of Un, 23 Grat. 160. DEMUKREE FOR WANT OF PARTIES. 219 In a suit by T. against H. to rescind a contract for the exchange •of land, it appeared that H. had been in possession of his land for twelve years and had paid all the purchase money ; but D. from whom he purchased had died, and H. had brought a suit against D's. widow and heirs to have the title made to T. It was error to rescind the contract without having the widow and heirs ■of D. before the court. Stimson vs. Thorn, 25 Grat. 278. To a bill by the administrators of a vendor of land retaining the title to subject it to satisfy a bond given for a part of the purchase money, the holder of another of these bonds assigned by the vendor in his lifetime is a necessary party. MoOlintic vs. Wise's adm'ors, 25 Grat. 448. The sureties of an executor who have been sued to be held liable for his devastavit of the estate of his testator, may maintain a suit to' subject the purchasers of the assets from E. who were partici- pants with him in the commission of the devastavit, to pay the amount of the assets so purchased by them to the widow and legatee of the testator, in discharge pro tanto of their liabilities as the sureties of the executor. And in such case the sureties may and should unite in one suit all the purchasers whom they seek to make liable. Jones's ex'ors vs. Clark <£ als., 25 Grat. 642. H. and P. were partners, and they made a contract with D. in relation to a business to be conducted by D. After the death of P. his personal representatives and H. as surviving partner, filed their bill against D. to have an account and settlement of the business aforesaid. The bill showed that sometime previous to filing it, H. had assigned all his interest in the firm for proper settlement of accounts, and after paying his partners all he might owe them, the surplus, if any, was to be paid to C. It also appeared from the bill that H. had been declared a bankrupt. Both 0. and the assignee in bankruptcy of H. were necessary parties, and a decree made in their absence, against D. will be reversed by the appellate court, though no objection was taken in the court below, for want of parties, Dahney vs. Preston's adm'ors, 25 Grat. 838. A bill was filed by a residuary legatee, against an administrator with the will annexed and his sureties T. and H. The administra- tor was insolvent. 0., the son of T., had received assignments of a number of the legacies and claimed them as his own. H. insisted that they belonged to T. and had been purchased at a large discount, the benefit of which he was entitled to share. H. insisted farther that 0. should not be paid these legacies until T. or T. and 0. should file a cross-bill against him, and thus give him an oppor- tunity to contest G.'s right. It was held that 0. was a proper party defendant to the original bill to have his right to the legacies settled; and T. and 0. having filed a cross-bill against H. setting up O.'s right to the legacies, that H. could not object to it at the hearing, after having insisted on it; and, farther, that if 0. were 220 DEFENCE TO SUITS IN EQUITY. not entitled to the legacies lie should be allowed compensation for purchasing them. Tarr vs. Ravensoroft, 12 Grat. 642. If one of two sureties of an insolvent administrator purchase up legacies for which the sureties are bound, at a discount, he can ojily charge his co-surety for his proportion of what he paid for the legacies, and of the expenses of purchasing them. Ibid. A guardian of infants may maintain a suit for partition of real estate held jointly by the infants and adult parties. ZirhU vs. McOue d ah., 26 Grat. 517. When the representatives of a deceased maker, and of a deceased endorser, though both die insolvent, should be made parties to a suit by the holder of a negotiable note to subject the estate of a deceased endorser to its payment. Duerson's admor vs. Alsop <£ als., 27 Grat. 229. When the Treasurer of the State is a proper party to suits ty holders of insurance policies against the insurance company. Universal Life Ins. Co. vs. Coghill (& als., 80 Grat. 72. When the surviving husband of one of several heirs a proper party for a division of land. Persinger d als. vs. Simmons (6 als., 25 Grat. 238. 155. The following is the form of a demurrer for want of parties in the United States Circuit Court : Form of Demurrer for want of parties, in United States Circuit Court. In the Circuit Court pf the United States for the Circuit and District of : The demurrer of A. B. to the bill of complaint exhibited in this court by M. M. against the said A. B. and others ; This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said bill of complaint contained to be true, in manner and form as the same are therein set forth, doth demur thereto, and for cause of demurrer showeth that it appears by the complainant's own DEMUERER FOR WANT OF PARTIES. 221 showing that R. Gr. therein, named is a necessary party to the said bill, inasmuch as it is therein stated, &c. [here recite so much of the statements of the bill as show that R. Gr. is a necessary party], but yet the said complainant has not made the said R. Gr. a party to the said bill. "Wherefore, and for divers other errors and imperfections, this defendant demands the judgment of this court whether he shall be compelled to make any farther or other answer to the said bill or any of the matters and things therein contained ; and prays hence to be dismissed with his reasonable costs in this behalf sustained. A. B. Eastern District of Virginia, set : This day personally appeared before me the undersigned, a , A. B. and made oath that the foregoing demurrer is not interposed for de- lay in the suit in which it is filed. Griven under my hand this day of — ^ , in the year 18 — I, R. A., of counsel practicing in the United States Circuit Court for, &c., do certify that in my opinion the foregoing demurrer of A. B. is well founded in point ef law. R. A. There will be furjiislied in the Appendix to this treatise a dis- cussion of the Doctrine of Parties in the United States Circuit Courts. NOTE ON MAKING IMPROPER PARTIES AND OMITTING PROPER OR NECESSARY PARTIES. Consequence of making impkopee parties. As plaintiffs : See Ouff vs. Platell, 4 Euss. 242, 3 Cond. Eng, Oh. E. 651, 222 DEFENCE TO SUITS IN EQUITY. Makepeace vs. Haythxyme, 4 Russ. 244, 3 Oond. Eng. Ch. R. 652.. The King of Spain vs. Michado <£ als., 4 Russ. 225, 3 Eng. Oond. R. 648, Clarhson (& wife vs. De Peyster, dc, 3 Paige 836. See also Dickinson vs. Davis d als., 2 Leigh 401. As defendants: See Drinkerhoff, <£c. vs. Brown, <£c., 6 John. 0. R. 139, Bailey vs. Inglee, dc, 2 Paige 278. See Story's Eq. PI. §§ 509, 510, 287, 283, 541,, 544. Consequence of making improper parties as plaintiffs. In Bafiiy vs. King, Law Journal, Vol. 6 N. S. 98, 1 Keen 619, Lord Lang- dale said: "As to the objection of John Raffity being made a plaintiff, I am not satisfied it would, under any circumstances, be considered of such importance as to deprive the other plaintiffs of the relief they are entitled to. There have been cases in which the court with a view to special justice, has overcome the difficulty occasioned by a misjoinder of plaintiffs. In the case of Morley vs. Hawke, before Sir Wm. Grant (cited 2 Younge and J«r. 420) a tenant for life of a fund, at whose instigation and for whose benefit a breach of trust had Ijeen committed, was joined with the other plaintiffs to the bill. The defendant objected to any relief being granted in that state of the record; but the objection was over- ruled, and a decree was made against the defendants, and the offending tenant for life, who was one of the plaintiffs. * * * John Raffity does not appear to have had any interest whatever, and he is a mere formal party. And without determining the effect, if brought forward earlier, I think it is now too late. If the objection had been stated in the answer, the plaintiffs might have obtained leave to amend their bill, and might have made John Raffity a defendant instead of a plaintiff; for which there is the authority of Ayleuin vs. Bray; and in such a case as this, where the objection is reserved to the last moment and even after the argument on the merits, I think it ought not to prevail." See Dickinson vs. Davis <£ als., 2 Leigh 401. In Dickinson vs. Davis <& als., 2 Leigh 401, there was certainly scintilla juris in the daugh- ters of the intestate sufficient to have supported the bill, if the objection had been taken at the proper time. See Rhodes vs. Warhurton, 6 Sim. 717, in which legatees of a testator weft joined with the executor as plaintiffs in suing for a debt of the estate and the bill was sustained. Morley vs. Sawke, 2 Younge and Jer. 420, cited by Lord Langdale as above, may well be questioned as authority. Though the judgment of an eminent judge. Sir Wm. Grant, it seems to be most clearly in conflict with the principles of equity pleading. Before holding the tenant for life as having in- stigated the breach of trust, and visiting its consequences upon her, she should certainly have had the privilege of replying to the charge, and this was denied her in the state of the pleadings. The plaintiffs should have been required to amend their bill, and make her a party defendant. FOEMS OF DEMURRER. 22S Consequence of making improper parties as defendants. The only reBult flowing from making as defendants improper parties is a dismission of tne bill as to them, usually with costs. 2 Eob. Pr. (old) 275. If made after a suggestion by the co-defendants that they are proper parties and in consequence of such suggestion,, raised either by demurrer or plea or answer, the costs should be visited upon the defendants making the suggestion : See Code 1873, chap. 167, §§ 22, 23, a statutory provision as to action at law. Consequence of omitting peoper parties. The plaintiff's bill will not be dismissed, but leave will be given him to amend his bill by adding proper parties, on payment of costs. Oreea vs. Poole, 4 Bro. Par. Cas. 122, Jones vs. Jones, 3 Atk. Ill, CoU vs. Lasnier, 9 Cow. 334. The Court of Appeals will reverse a decree for the want of necessary parties although the objection was not taken in the court below. Taylor's adrrCor (& ah. vs. Spindle, 2 Grat. 45. In Jameson vs. Deshield, 3 Grat. 4, the plaintiff had shown a right to relief against the defendant before the court, though he had omitted necessary parties. The Circuit Court dismissed his bill. The Court of Appeals reversed the decree and sent the cause back, with leave to make the necessary parties. Demurrer to Part of the Bill or to a Pari of the Relief. In the Circuit Court of the United States for the Circuit and District of : The demurrer of A. B., defendant to a part of the [or to a part of the relief sought by the] bill in equity filed against him in this court by C. D., com- plainant. This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill to be true, in such manner and form as the same are therein set forth and alleged, as to so much and such part of the said 224 DEFENCE TO SUITS IN EQUITY. bill as* seeks that this defendant may answer and set forth whether, &c., and whether, &c., and prays, &c. [if relief be prayed ; or, if to a part of the relief alon6, omit all after asterisk, saying instead, " prays that this defendant may," &c,], doth demur and for cause of demurrer showeth (here state the cause of demurrer). Wherefore, and for divers other errors and imperfections in the said bill, this defendant doth humbly pray the judgment of this honorable court whether he shall be compelled to make any answer to such part of the said bill as is so de- murred to as aforesaid, and prays hence to be dis- missed, &c., as in the form on p. 184, ante. A. A. M., p. d. Add certificate of counsel as on page 221, ante, and affidavit of party as on page 221, ante. Demurrer to a bill for relief where the plaintiff has no interest in the subject or no title to institute a suit concerning it. ^ In the Circuit Court of the countv of : [As in form on p. 183 to word " forth," then pro- ceed] doth demur thereto, and for cause of demurrer showeth that the said complainant hath not, as ap- pears by his said bill, made out any title to the relief thereby prayed. Wherefore, &c., (as on p. 184 to the end). ^ Mitf, PI. 89, 125, FORMS OF DEMURRER. 225 Demurrer for want of jprwity to a hill for relief hy an unsatisfied legatee against a creditor of Ms testator.^ In the Circuit Court of the county of : [As in form on p. 183 to word "forth," then pro- ceed :] doth demur thereto, and for cause of de- murrer showeth that it appears by the said com- plainant's said bill that there is no privity between the said complainant and this defendant to enable the said complainant to call on this defendant for payment of any debt due to the estate of the said testator from, this dofendant. Wherefore, &c., (as on p. 184 to the end). Demurrer to a Mil hrought for part of a matter only. Proceed as in section 136, p. 168, to the word ^' sTiow,^^ then say : that the said complainant by his sa'id bill, in order to split the cause and create a multiplicity of suits, seeks only to recover a part of an entire debt thereby stated to be due to him from these defendants ; and in respect of other parts of the said debt has, as appears by his said bill, filed another bill of complaint in this honorable court against these defendants. Wherefore, &c., (as in section 136 to the end), A. A. M., p. d. If in the United States Circuit Court add affidavit of defendant and certificate of counsel as found on p. 221, ante. "Mitf. PI. 129, Willis's PI. 456. 29 226 DEFENCE TO SUITS IN EQUITY. Demurrer to a bill of interpleader for want of the necessary affidavit. Proceed as in section 136, p. 168, to the word " show,'^ then say : that although the said complain- ant's said bill is on the face thereof a bill of inter- pleader and prays that these defendants and the other defendants thereto may interplead together concerning the matters therein mentioned, and may be restrained, by the order and injunction of this honorable court, from proceeding at law against the said complainant touching such matters, yet the said complainant has not annexed an affidavit to his said bill that he does not collude concerning such mat- ters, or any of them, with these defendants and the other defendants thereto, or any or either of them, which affidavit ought, as these defendants are ad- vised, according to the rules of this honorable court, to have been made by the said plaintiif and annexed to the said bill. Wherefore, &c., (as in section 136 to the end) . A. A. M., p. d. If in United States Circuit Court, add affidavit of defendants and certificate of counsel as found on p. 221, ante. Demurrer to a bill for discovery, in aid of a court which had of itself the power to compel the dis- covery .required. Proceed as in section 136^ p. 168, to the word "show,^' then say: that the said complainant has not FORMS OF DEMURRER. 227 in and by his said bill shewn such a case as calls for the interference of this honorable court, inasmuch as a discovery of the several matters in the said bill contained, could, if necessary, have been obtained in the court in the said bill mentioned, in aid whereof the discovery prayed by the said bill is sought to be enforced by this honorable court from these defend- ants.^ Wherefore, &c., (as in section 136 to the end). A. A. M., p. d. If in United States Circuit Court, add affidavit of defendants and certificate of counsel as found on p. 221, ante. Demurrer where the discovery would subject the defendr ant to pains, penalties and forfeitures. Proceed as in general formula of demurrer p. — post, setting forth the cause of demurrer thus : that the said bill seeks to discover how this defend- ant came by the possession of the bonds therein mentioned, whether it was not by fraud, violence, contrivance or other means, and whether they were . not the property of J. B. from whom in the said bill the said bonds are alleged to have been taken by this defendant and others; but this defendant is advised that any discovery of the manner in which such bonds came into this defendant's possession, would or might subject this defendant to fine or imprisonment, and the penalties of the several acts "But let it be noticed, that a jurisdiotion to compel discovery in equity, in aid of an action at law, is not taken away, simply because in the action at law the statutes now provide that discovery may be compelled. 228 DEFENCE TO SUITS IN EQUITY. of the Greneral Assembly of Virginia, entitled &c. Wherefore, &c., (as in general formula to the end). J. M. P., p. d. If in United States Circuit Court, add affidavit of defendant and certificate of counsel as on p. 221. Demurrer to a hill for discovery, the defendant having no interest in the subject. °° Proceed as in general formula p. 229, and state the cause of demurrer thus : that the said complain- ant has not in and by his said bill stated, charged or shown that this defendant has, or pretends to have, any right, title or interest in the matters and things complained of by the said bill or any of them or any right to call upon this defendant in a court of equity, for a discovery of the said matters and things or any of them. Wherefore, &c., (as in general for- mula, to the end). J. M. P., p. d. If in United States Circuit Court, add affidavit of defendant and certificate of counsel, as on p. 221. Demurrer to hill for discovery, when there is no privity of title between the plaintiff and defendant.^" In the Circuit Court of the county of : As in form on p. 183, to word " forth," then pro- ceed : doth demur thereto and for cause of demur- «»Mitf. PI. 185, 188. Story's Eq. PI. i 312. "Mitf. PI. 154. GENERAL FORMULA OF DEMURRER. 229 rer showeth that the said complainant has not by his said bill, shown such privity of title, as entitles him in a court of equity, to the discovery from this defendant thereby sought. Wherefore &c., (as on p. 184 to the end) . General formula of demurrer. In the Court, of the . The demurrer of A. B. defendant to the bill of complaint of C. D.. complainant. This defendant, by protestation, not confessing all or any of the matters and things in the said com- plainant's bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, doth demur to said bill, and for cause of demurrer sheweth that &c., [here set forth the cause of demurrer.] Wherefore and for divers other good causes of demurrer appearing in the said bill, the said defendant doth demur thereto, and humbly demands the judgment of this court, whether he shall be compelled to make any farther or other answer to the said bill ; and prays to be hence dismissed, with his costs and charges in this behalf most wrongfully sustained. JOHN G. WILLIAMS, p. d. If in the United States Circuit Court, add certifi- cate of counsel as follows : Certificate of cownsel. I, J. Gr, W., of counsel practicing in the U. S. C, C. 230 DEFENCE TO SUITS IN EQUITY. for &c., do hereby certify, that in my opinion, the foregoing demurrer is well founded in point of law. J. G. W. And the following affidavit of the defendant : Affidavit of defendant. Eastern district of Virginia, set : Personally appeared before me this day, the undersigned, a commissioner, &c.,' A. B. the defend- ant named in the foregoing demurrer, and made oath that the said demurrer is not interposed for delay in the suit in which it is to be filed. Given under my hand, this day of , 18—. R. K,., comm'r, &c. 155a. The following is the form of a demurrer to a bill*for relief for misjoinder of parties : Form of demurrer for relief for misjoinder of plain- tiff, in Virginia State Courts. In the Circuit Court of the county of : [As in form on p. 183 to word " forth," then' pro- ceed :] doth demur to the said bill, and for cause of demurrer showeth that it appears by the said bill, that the same is exhibited against this defendant, by Richard M., John B. and Charles C. as complainants, and the said Charles C. has no interest whatever in FORMS OF DEMURRER. 231 the matters complained of in the said bill, " and the said Charles C. has been improperly joined as one of the complainants in the said bill." Wherefore &c., (as on p. ] 84 to the end) . Form of demurrer to hill for relief, for misjoinder of defendant, in the Virginia State Courts. In the Circuit Court of the county of : [As in form on p. 183 to word " forth," then pro- ceed:] doth demur to the said bill, and for cause of demurrer sheweth that it appears by the said bill, that the same is exhibited against the said defendant Moses M. and &sie Richard R. and the said defen- dant Moses M. has no interest whatever in the matters complained of in the said bill, and should not have been joined with the said Richard R. as one of the defendants therein. Wherefore &c., (as on p. 184 to the end). See Story's Eq. PL § 232. As to demurrers to bills of discovery for misjoin- der of parties, see Story's Eq. PI., §§ 569, 570, 571. 156. Demurrers to original bills have thus far been noticed. Many of the causes of demurrer applying to an original bill apply also to other bills ; and distinct causes of demurrer are sometimes found '^The language used is probably broader than necessary. Though the plaintiff in a bill may have an interest in the subject, yet if he has not a proper title to institute a suit concerning it, a demurrer will hold. Mitf. PI. 155. See Edwards vs. Edwards, 1 Jac. R. 335. See also Mitf. PI. 156, 157. " See Malcepeaee vs. Saythorne, 4 Rusa. 244 ; King of Spain vs. Michado, 4 Rnss. 225, 241 ; Hunter vs. Richardson, 6 Mad. 89 ; Doyle vs. Muntz, 5 Hare 514; Mitf. PI. 160, 161; Story's Eq. PI. 232. 232 DEFENCE TO SUITS IN EQUITY. in the pleader's not conforming in his draft to the rules of practice specially applicable to bills other than original bills. These causes of demurrer will be noticed when such bills come under discussion in this treatise. 157. The course of procedure on a demurrer de- pends on the plaintiff's opinion of its validity. If he thinks, as the bill stands, the objection is good, but that he can remove it by restating his case he may submit to the demurrer and amend his bill. "^ If he thinks the demurrer bad he may set it down for argument." If the demurrer is allowed on argu- ment the suit is at an end, unless the demurrer is confined to a part of the bill or the court give per- mission to the plaintiff to amend." If the demur- " If the plaintiff conceives that by amending his bill he can remove the ground of demurrer he may do so before the demurrer is argued, on payment of costs. Mitf. PI. 215. "Code (1873), chap. 167, ? 33, Sess. Acts 1875-6, p. 209. It is stated that there should not be a j oinder to a demurrer in equity. The reason for this is not perceived. Yet as our statute prescribes in special terms that when a demurrer is taken the plaintiff may set it down for argument, it is better to follow the statute So that in using the form found on p. 129 the language in the note thereto may be omitted. "See 2 Eob. Pr. (old) 302. Mr. Robinson says : " When the demurrer has been argued upon the merits and the court is of opinion that the equity in the case, though fully stated, will warrant no decree for the plaintiff, the bill will be dismissed. Lyon &c. vs. Tallmadge, c6c., 1 John. Ch. R. 184. And the defendant will have his costs. 1 E. C. 1819, p. 216, ? 100, and p. 257, § 58. But if the defect of the bill be in not making proper parties, or in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case but not forming the substance itself, leave is usually granted to amend the bill. Kent, Ch., in Lyon, &c. vs. Tall- madge, &c., 1 John. Ch. R. 188. Ordinarily it is considered premature, upon a general demurrer, wholly to dismiss the bill, unless the complainant's case is, from his own showing, radically such that no discovery or proof, properly called for by or founded upon the allegations in the bill, can possibly make it a proper subject of equitable jurisdiction. LeRoy vs. Feeder, Story's Eq. PI., g 820, 610. aiynn vs. /Scares, 3 M. & Z. 450, 469-472. "'Story's Eq. PI., I 820 and cases cited. "2 Story's Eq. PI., \ 820, 500, 502. Cooper's Eq. PI. 193. SmeU vs. Wil- liams, 4 Paige 364. "' Beames's PI. in Eq. 160. 256 DEFENCE TO SUITS IN EQUITY. of record or as of record in the court itself or m some other court, and 3, Pleas of matters in pais.^^ 192. Pleas of Statutes. Any statute, public or private, which may be a bar to the demands of the plaintiflP may be pleaded with the averments neces- sary to bring the case of the defendant within the statute and to avoid any equity which may be set up against the bar of the statute,"*^ e. g. the statute of limitations,"" the statute against frauds and perju- ries,^°' and the statute against usury,''* &c. 193. A plea of a statute must be put in upon oath, for although the statute itself is matter of re- cord, the averments necessary to bring the case within it are matters in pais, which must be sup- ported by the oath of the party."" 194. Pleas of matters of record or as of record. Pleas which consist of matters recorded or as of re- ^^ Beames's PI. Eq. 160. Cooper's PI. 251. See Lord Redesdale's arrange- ment, Mitf. PI. 192. «5Mitf. PI. 274. 166 The statute of limitations cannot be pleaded to a trust. Dan. Ch. Pr. (Perk.) 666 and cases cited. See Norton vs. Tumlh, 2 P. Wms. 144, and Jones vs. Scott, 1 R. & M. 255, Burlee vs. Jones. 2 V. & B. 275, 2 Dan Ch. Pr. (1846) n. to p. 155. See Tazewell vs. Whittle, 13 Grat. 329, as to the measure of strictness required in relying on the statute in equity. 16' Thus to a bill for specific performance, there being no agreement in writing. Mitf. PI. 265, Dan. Ch. Pr. (Perk.) 681, Story's Eq. PI. 671 ; or to a bill to enforce a parol variation of a written contract, Jordan vs. Sawhivs, 1 Ves. Jr. 402, unless the variation amounts to a mere waiver of a term in the agreement. Ibid. As to party's admitting parol agreement by answer and yet insisting on benefit of .statute, see Dan. Ch. Pr. (Perk.) 682, n. 1, Story's Eq. PI. 763. ><« Lane v. Elhey, 4 H. A M. 504. S. C, 6 Rand. 661. "'Dan. Ch. Pr. (Perk.) 683. Wall vs. Btuhls, 2 Ves. & B. 354. 1 Smith's Ch. Pr. 232. PLEA. 257 cord in the court itself, or some other court of equity, or in some court not a court of equity, may be pleaded in bar;"° e. g. a decree or order of the court by which the rights of the parties may have been determined, or another bill for the same matter dismissed.'" 195. It has been held that a decree against a mortgagor, and order of foreclosure enrolled, will not be a bar to a bill by intervening encumbrancers though the mortgagee had no notice of their encum- brances."' 196. A decree not in its nature final or afterward made so by order will not be a bar."' A decree of any court of equity in its nature final or made so by subsequent order may be pleaded in bar of the new suit."* 197. The plea proceeds upon the ground that the "»Dan. Ch. Pr. (Perk.) 683. "' Mitf. PI. 237. And this even if the party bringing the new bill were an infant at the time of the former decree, for a former decree enrolled can only be altered upon a bill of review Dan. Ch. Pr. (Perk.) 683. The dismission can only be pleaded in bar if the dismission was upon hearing or was not in terms directed to be without prejudice. Mitf. PI. 194. Ferine vs. Dunn, 4 John Ch. 142, Story's Eq. PI. 793, and cases cited. Dan. Ch. Pr. (Perk.) n. 5^ p. 683, 684. But it must be understood that discussion of the merits when the dismission was had ie not necessary ; if the dismissal had been merely for want of evidence, the decree would be a bar to another suit. Jones vs. Nixon, 1 Yonnge 359. Qucere — whether a mere default at the hearing resulting in. dismissal is sufficient. ' Pichett vs. Loggan, 14 Ves. 232. "2 Merrit vs. Westerns, 2 Vern. 663, See Mitf. PI. 194. ™ Mitf. PI. 194. Senhouse vs. JSarle, 2 Ves. 450. See Neafee vs. Neafee, 7 John Ch. 1. Story's Eq. PI. ? 791. "* Mitf. PI. 245. Fitzgerald v. Fitzgerald, 5 Bro. P. C. 567. Jones vs. Nixon, 1 Younge 359. Ferguson vs. Miller, 5 Ham. 460. Hughes vs. Blake, 6 Wheat 453. 33 258 DEFENCE TO SUITS IN EQUITY. same matter was in issue in the former suit, and as every plea that is set up as a bar must be ad idem,"^ ■the plea should set forth so much of the former bill and answer as will show that the same point was then in issue.™ 198. Pleas of matters of record or as of record, •other than pleas of decrees of courts of equity, are mentioned in the English books as embracing : 1, Fines ; 2, Recoveries ; and 3, Judgments at Law. The two first-named have no application in this ■country. As to the last-named, judgments at law, their force and effect as a bar to a suit in equity for "the same matter, it is believed, is as great here as in England. 199. A judgment which has finally determined "the rights of the parties may be pleaded in bar to a suit in equity"' ; and this, whether the judgment be of a court of competent jurisdiction in this or in any other country.™ Of course the bar of the judgment may be avoided by showing fraud, mistake or sur- prise."' "5 Lord Hardwicke in 2 Atk. 603. "8 Dan. Gh. Pr. (Perk.) 685. Child vs. Gibson, 2 Atk. 603. Bk. of Michi- gan vs. Williams, Earring Oh. 219. Cates vs. Loftus, 4 Monroe 439. 1" Dan. Oh. Pr. (Perk.) 687 and cases cited. 3unt vs. TerrU, 7 J. J. Marsh. 68, 70. Story's Eq. PI. 780-782. ™ Dan. Gil. Pr. (Peck) 687. But the court must have full jurisdiction to determine the rights of the parties. Gage vs. Bulheley, 3 Atk. 215. ""See Williams vs. Lee. 3 Atk. 223, Samvda vs. Purtado, 3 Bro. C. C. 70, 71. The following Virginia cases are cases in which fraud, surprise or accident was the ground of relief against a judgment at the instance of the plaintiff in equity : King vs. Smith & aU., 2 Leigh 157. Poindexter vs. Waddy, 6 Munf. 418. Lee vs. Baird, 4 H. & M. 453. West's ex'or vs. Leg- -wood, 6 Munf. 491. Eord vs. Dishman, 5 Gall. 279. Mayo vs. Bentley, PLEA. 259' 200. Pleas in har of matters in pais. Pleas in bar, of matters in pais only, are principally : 1, a stated account ; 2, a release ; 3, an award ; 4, an agree- ment ; 6, a title founded either on adverse possession or on a will or conveyance, or other instrument affecting the rights of the parties; 6, a purchase for valuable consideration without notice of the plain- tiff's title.™ 2U1. Plea of a stated account. A plea of a stated account is a good bar to a bill for an account,"^ for there is no rule more strictly adhered to in a court of equity than this, that when a defendant sets forth a stated account he shall not be compelled to go upon a general one.'*' 202. In support of the plea it must be shown to have been final.'^ The defendant who pleads a stated account must show that it was in writing, and like- wise the balance in writing, or at least set forth what 4 Call. 528. Price's ex'or. vs. Fuqua's adm'or, 4 Munf. 68. Knifong vs. Hen- driehs, 2 Grat. 212. Foushee vs. Lea, 4 Call. 285. White vs. Washington 5 Grat. 645. Sust vS. Ware, 6 Grat. 50. See pp. 92-94 of thia work. ^™ There are other pleas of this character, e. g., a plea of accord and satis- faction, and others of a kindred nature. Brown vs. Perkins, 1 Hare 564, 570. ^^ Mitf. PI. 258. Dawson vs. Dawson, 1 Atk. 1. Chappedelaine vs. Diche- naux, 4 Cranch 306. And a fortiori, says Mr. Justice Story, a plea of a settled account. Story's Eq. PI., ? 798. Story's Eq. Jur., ? 527. '^ .Sumner- vs. Thorp, 2 Atk. 1, Cooper's Eq. PL 277, Taylor vs. Haylen, 2 Bro. C. C. 310, Johnson vs. Cfurtis, 3 Bro. C. C. 266, Carmichael vs. Car- michael, 2 Phil. 101, 1 Story's Eq. Jur. ? 527. ^'^ Dawspn vs. Dawson, 1 Atk. 1. A stated account properly exists only where the accounts have been examined and the balance admitted as 'the true balance between the parties without having been paid. Story's Eq. PI. 798. When the balance thus admitted is paid the account is deemed a settled ac- count. JEndo vs. Caleham, 1 Young 306, Capon vs. Miles, 13 Price 767, Weed vs. Small, 7 Paige 573, Storyjs Eq. PI., g 798. 260 DEFENCE TO SUITS IN EQUITY. the balance was.'"* Errors excepted in an account will not prevent its being a stated account/** nor is it necessary to a stated account that it should be signed by the parties/*' 203. A verbal statement of an account and a re- ceipt in full given for the balance then agreed to be due have been held bad as a plea in bar to a bill for opening the account, if there have been mistakes in the transactions/" 204. A general release of all demands, not under seal, may be pleaded as a stated account.'** Signa- ture to the account is not necessary ; it is enough if the account has been delivered and acquiesced in for a considerable length of time,'*' but the mere delivery of an account will not constitute a stated account without some evidence of acquiescence affording sufficient legal presumption of the fact."" 205. A defendant pleading a stated account must, 184 Dan. Ch. Pr. (Perk.) 690, Story's Eq. Pi. § 798, Burk vs. Brown, 2 Atk. 399, Sewell vs. Bridge, 1 Ves. 297. ^^ Johnson vs. Curtis, cited, 2 Bro. 0. E. 310; 3 Bro. Ch. R. 266, and Mr. Belt's notes. 188 Willis vs. Jernegan, 2 Atk. 251, 252. "'Cooper's Eq. PL 277, 278, Mitf. PI. 259, 260. Phelps vs. ^roule, 1 Mylne & Keen, 231. 188 2 Dan. Ch. Pr, (1846) 189, For. Rom. 57. ^^ Murray vs. Toland, 3 John. Ch. 569, Freeland vs. Heron, 7 Cranch 147, Consequa vs. J'auning, 3 John. Ch. R. 587, Wilde vs. Jackson, 4 Paige 481, Willis vs. Jarnegan, 2 Atk. 252. 190 Xrvine vs. Young, 1 S. & S. 333. It has been said that among merchants it is looked upon as an allowance of an account current, if the merchant who receives it does not object to it in a second or third post, Sherman vs. Sher- man, 2 Vern. 276. See Tlelcel vs. Short, 2 Ves. 239. PLEA. 261 'whether fraud be charged or not, aver that the stated account is just and true to the best of his knowledge and belief.™ There should be, also, an averment in the plea, when such is the fact, that the vouchers have been delivered up/°' 206. Of course if specific errors or fraud be charged in the bill for the purpose of impeaching the account, they must be denied by averments in the plea as well as by answer in support of the plea.™ 207. Fraud in the settlement of accounts is suf- ficient to open the whole account,''* and this has been done after the expiration of twenty-three years, and when the party who was guilty of the fraud was dead.''° Where errors or mistakes exist in the account, the party will be permitted to surcharge and falsify them.™ The distinction between opening 1'' Dan. Ch. Pr. (Perk.) 691, Anon. 3 Atk. 70 ; and see Hankey vb. Simpson, 3 Atk. 303, Daniel vs. Taggart, 1 Gill & John. 311, Schwarz vs. Wendell Barring. Ch. 395, Mitf. PI. 260, 4 Min. Inst. 1160. ''^Mitf. PI. 260, Willis vs. Jernegan, 2 Atk. 252. i» Mitf. PI. 261, Fhelps vs. Sproule, 1 M. & K. 231. '*• Vernon vs. Vawdry, 2 Atk. 119; Matthews vs. Wallwyn, 4 Ves. 125 ! Beaumont vs. Boultbee. 5 Ves. 485, 7 Ves. 599; S. C. 11 Ves. 358 ; Allfrey vs. Allfrey, 1 Mao. & Gor. 87;; 1 Story's Eq. Jur., ? 523 ; Story's Eq. PI. 801, 802; Barrow vs. Rhinelander, 1 John. Oh. 550; Baker vs. Biddle, 1 Bald. 394; Bainbridge vs. Wileocks, 1 Bald. 536, 540. Even though there be a bond. Gray vs. Washington, Cook 321 ; and though the bill contains no direct aver- ment of fraud, if it appear in the proofs; Farnam vs. Brooks, 9 Pick. 212. ^^ See Matthews vs. Wallwyn,^ Ves. 118 (note*); Botifuer vs, Weyman, 1 MoCord Ch. .161 ; and oases cited in Dan. Ch. Pr. (Perk.) 692, n. 1. 196 Yi^non vs. Vawdry, 2 Atk. 119. The burden of showing errors is on him who receives an account without objection. Chapedelaine vs. Dechenaux, 4 Gran. 203 ; Dan. Ch. Pr. (Perk.) 692, n. 2. In the case of transactions be- tween trustee and cestui que trust, or guardian and ward {Brownell vs. Brownell, 2 Bro. C. C. 62), or between solicitor and client (Matthews vs. Wall- ■wyn, 4 Ves. 125), the court allows a greater latitude. 262 DEFENCE TO SUITS IN EQUITY. the whole account and allowing surcharge and falsi- fication is important. In an account opened the whole of it may be unravelled, and the parties will not be bound by deductions agreed upon between them on taking the former account, "' but when the- party has liberty to surcharge and falsify, the onu» probandi is always on him ; for the court takes it as a stated account and establishes it, with the privi- lege of showing omissions which is called surcharg- ing, and of showing wrong charges which is called falsification,^^'' both, however, by proof on his side.™ "lOS When parties are at liberty to surcharge and falsify, they are not confined to mere errors of fact, they may take advantage of errors in law^'" and when one party is allowed to surcharge and falsify the other may do so too.™' 209. Plea of release. A defendant may plead a release in bar of the bill, '"' and this will apply to a bill praying that the release may be set aside.™ To- be an effectual bar to an a,ccount however, the release must be under seal; otherwise, it must be pleaded as a stated account only.™* In the plea the english books say, and Mr. Justice Story repeats, on american authority, that the defendant must set 15' Oshorne vs. Williams, 18 Ves. 379, 382. "8 1 Story's Eq. Jur. 525. "» Pit vs. Cholmondely, 2 Ves. 566. ™» Roberts vs. Kuffin, 2 Atk. 112. ^'i 1 Mad Eq. 144. 2»2Mitf. PI. 261; Brown vs. Swadlin, 1 Atk. 294; Roche vs. Morgill, 2 Sch. & Lef. 721. 2»3 Mitf. PI. 261. »* Mtf. PI. 261 : Story's Eq. PI., § 796. PLEA. 263 out the consideration upon which it was made.^°° If the consideration of the release is impeached by the bill, the plea should be assisted by averments cover- ing the ground upon which the consideration is so impeached. "* 210. Plea of award. An award may be pleaded in bar to a bill which seeks to disturb the matter sub- mitted to arbitration.™' It may likewise be pleaded to a bill to set aside the award and open the ac- count,™ and it is not only a good defence to the merits of the case, but likewise to the discovery sought by the bill.'™ 211. A mere covenant or agreement to refer dis- putes to arbitrators cannot be pleaded in bar to a ™Mitf. PI. 261 ; For. Rom. 57. See Roche vs. Morgell. 2 Sch & Lef. 728 ; Story's Eq. PI. 797 ; 1 Story's Eq. Jur. 523, 527 ; Capon vs. Miles, 13 Price 767 ; Phelps vs. Sproule, 1 Myl. & K. 231 ; Parker vs. Alcoch, 1 Younge & ■Jerv. 432 ; Fkh vs. Miller, 5 Paige 26 ; Allen vs. Randolph, 4 John. Ch. 693 ; Bolton vs. Gardner, 3 Paige 273. ^MMitf. P}. 261; Salheld \s. Science, 2 Ves. 107-8; Story's Eq. PL 796, Y97 ; Parhe vs. Alcock, 1 Younge & Jerv 432 ; Fish vs. Miller, 5 Paige 26 ; Allen vs. Randolph, 4 John. Ch. 693 ; Bolton vs. Gardner, 3 Paige 273 ; Peck vs. Burgess, Walk. Ch. 485. ^ Tillenson vs. Peat, 3 Atk. 529 ; Farrington vs. Chute, 1 Vern. 72. 2»8Mitf. PI. 260. 2<»Mitf. PI. 260; mienson vs. Pco<, 2 Atk. 529; Story's Eq. PI., § 803. See Rowe vs. Wood, 1 Jac. & W. 315; 2 Bligh P. C. 505, for a case in which the agreement was entered into after the bill had been filed; and see 1 Dan. Ch. Pr. (1846) 192. Dryden vs. Robinson, 2 S. & S. 529, was a case in which the award was made under an agreement entered into after the bill was filed, to refer the whole subject-matter of the suit to an arbitrator. It was held that such an award might be pleaded to the bill ; but all the parties to the suit not being parties to the award, although the plaintiff was a party to it, and the prayer of the bill being for the execution of trusts in a deed under which some of the parties to the suit were interested, who were not parties to the award, the plea of the award was ordered to stand for an answer with liberty to except. 264 DEFENCE TO SUITS IN EQUITY, bill.™ If the bill impeach the award on the grounds^ of fraud, corruption or mistake, these charges should be denied by averments in the plea and by answer in support of it and every other matter stated in the bill as a ground for impeaching the award should be so denied.''" 212. Plea of a final agreement. While a mere covenant or agreement to refer disputes to arbitra- tors cannot be pleaded, the reason of the rule being- that such an agreement is merely executory, when the agreement entered into between the parties is. final and settles the whole matter it may be pleaded in bar to a bill."" An agreement to put an end to a suit must be final not only as between the parties to- the bill to which it is pleaded, but it must be final as to all the parties compromised by it.'" 213. Plea of Title. A defendant's title para- mount to the plaintiff's title may be pleaded,"" whether founded on long peaceable possession or on a will or on a conveyance "° or otherwise. 214. Plea of length of time and adverse possession. Length of possession is a good subject of a plea."*" When from the statement in the bill there appears 210 Dan. Ch. Pr. (Perk.) 694, u. 8, and 695, n. 1, 2, 3. 2" Mitf. PI. 261. ^As to duties of arbitrators, when they are made parties to a bill charging them with corruption and partiality, see Dan, Ch. Pr.. (Perk.) 695, 298, 299. 212 2 Dan. Ch. Pr. (old) 193; Dan. Ch. Pr. (Perk.) 695. 213 2 Dan. Ch. Pr. (old) 194 ; Dan. Ch. Pr. (Perk.) 695. See Wood vs. Some, 2 Bligh P. C. 595; and Bowe vs. Wood, 1 Jao. & W. 315. 2"Prac. Eeg. 328 ; Story's Eq. PI., § 811. 216 Dan. Ch. Pr. (Perk.) 696. 2i6Prao. Eeg. 328; Dan. Ch. Pr. (Perk.) 696. PLEA. 265 to have been a possession adverse to it of above twenty years without any allegation of disability the defendant may demur/" but when the title is not so stated, the defendant must plead the facts necessary to shew the existence of the adversary possession ; ''' and a mere general allegation in the bill that there have been disabilities arising from infancy or cover- ture will not be sufficient to invalidate such a plea.'" 215. After a great lapse of time courts of equity will raise a presumption of some legal or equitable extinguishment of the adverse title, if the circum- stances of the case will enable them to support it."" 216. A bill was filed for the payment of a rent charge ; the defendant pleaded twenty-six years pos- session of the premises without accounting for or paying over to the plaintiif any part of the rents and profits. The plea was allowed.™ 216 a. The time at which the plea of the statute of limitations begins to run in a case of fraud or mis- take will in equity be held to be from the time the discovery of the mistake or fraud first became ™Clholmondely vs. Clinton, 1 T. & E. 107; Blewitt vs. Thomas, 2 Ves. Jr. 669. ='18 Dan. Ch. Pr. (Perk.) 696, 697 ^Story's Eq. PI. 814, 815; Blewitt vs. Thomas, 2 Ves. Jr.. 669, 671; Cooper's Eq. PI. 288 ; Beames's PI. Eq. 247, 248. See the plea in Beames's PI. in Eq. 331-333. As to form of plea of adverse possession, when the pos- session is derivative, see Dan. Ch. Pr. (Perk.) 697 ; Sardman vs. Ellamea, 2 M. & K. 732. See also Jerrard vs. Sanders, 2 Ves. Jr. 187. ^ Oholmondely vs. Clinton, 2 Jac. & W. 163 ; Blewitt vs. Thomas, 2 Ves. Jr. 669, 671. =21 Baldwin vs. Peach, 1 Younge & Col. 453. 34 266 DEFENCE TO SUITS IN EQUITY. known and not from the time the original trans- action took place/'' 217. Piea of will. A will may also be pleaded m bar to a bill brought on a ground of equity by an heir at law against a devisee, to turn the devisee out of possession.''^ But a will cannot be pleaded to a bill by an heir at law praying for production of doc- uments, and an injunction to restrain the defendants from setting up legal impediments, m an action of ejectment commenced by him against them."* 218. Plea of conveyance. Upon a bill filed by an heir against the person claiming under a conveyance from the ancestor, the defendant may plead the con- veyance in bar of the suit, "^ and when a bill was filed by persons claiming under a will to set aside a con- veyance made by the testator on the ground of fraud, and the defendant pleaded a conveyance by the tes- tator, before the date of his will, of the estate which the plaintiffs claimed, the plea was allowed. "' 219. In all cases it is necessary, whether the title be derived from adverse possession, or from a will or conveyance, to show that it had a commencement anterior to that of the plaintiff's title as shown by the bill ; a title posterior to the plaintiff's title will ^^ Story's Eq. PI. 815 a, 754 ; Brookshank vs. Smith, 2 Younge & Col. 58. See Story's Eq. PI. 8138 a, 14. ^'"Mitf. PI. 263. See Story's Eq. PI., ? 812; Willis's Eq. PI. 559; Anon. 3 Atk. 17. ii^Dan. Ch.Pr. (Perk.) 6. 225 Mitf. PI. 263. 264. »26 Howe vs. Duppa, 1 V. & B. 511, 513. PLEA. 267 not avail unless it be in some way connected with it. "" 220. Purchase for valuable consideration without notice. There are cases, however, in which a con- veyance may be insisted upon, though posterior in point of date to the plaintiif' s title. In such cases, it is necessary to the validity of the plea that the conveyance should have been for a valuable con- sideration, and that at the time it was perfected, the defendant, or the person to whom it was made, should not have had notice of the plaintiff's right.''''* A plea of this kind is called a 'plea of purchase for valuable consideration without notice,' and is founded on the principle, that when the defendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the as- sistance of the court to assert his right, the court will not interpose on either side.™ 221. Pleas of this character abound in the books of reports. When we come to consider' the form of such pleas, we shall place in the practical notes to the forms references to many of the cases in which such pleas were tiled.™ 222. Pleas to bills of discovery. The grounds of these pleas are — 1. Pleas to the jurisdiction ; 2. Pleas to the person ; 3. Pleas to the bill, or frame of the bill ; 4. Pleas in bar, properly so called. ''' 227 Hungate vs. Qascoigne, 1 R. & M. 698 ; Jackson v. Eowe, 4 Rqsb. 514 ; 2 Dan. Ch. Pr. (old) 198. 22* Either actual or constructive notice. 229Mitf. PI. 274; Dan. Ch. Pr. (Perk ) 698-703; Story's Eq. PI. 805-810. 23» § 243, post. 231 See what is said in § 190, ante. Story's Eq. PI. 817. 268 DEFENCE TO SUITS IN EQUITY. 223. Pleas to jtmsdiction m hills of discovery. These properly apply when the plaintiif' s case is such as not to entitle him to a discovery in his favor, although it is differently and falsely stated in the bill.''' Among the objections to such bills are these — that the subject of the suit is of a political nature ; that another court is competent to give the discovery ; that the tribunal, or the cause, is not such that the court will aid by a discovery;'"* and that the plaintiff has no title or interest in the suit. '" 224. Pleas to the person in hills of discovery. These are either to the person of the plaintiff; that he has no right or title or ability to call on the defendant for the discovery, or to the person of the defendant ; that the defendant is not liable or com- pellable to make the discovery. ''* 225. If a claim of interest is alleged by the bill against a person who has no interest in the subject matter, he cannot by demurrer protect himself from a discovery, he must either plead or disclaim.™ The plea denying interest in such a case must be sup- ported by an answer.'" 232 Mitf. PL 282. 2S'For example, if it be of a criminal nature. Beames's PI. Eq. 252, 254. 23* Story's Eq. PI. 817; and cases cited. Mitf. PI. 154, 231, 233, 282. 235 Beames's PI. Eq. 254, 255; Mitf. PI. 228-230, 232, 233; Story's Eq. PI. 818. 236 Cooper's Eq. PI. 294, 295 ; Story's Eq. PI. 819. =»' Cooper's Eq. PI. 294, 295 ; Beames's PI. Eq. 265. As to right of party denying the charge of interest to protect himself by answer from answering as to matter as to which he may afterwards be called upon in the character of a witness to answer, see Story's Eq. PI. 819 ; Mitf. PI. 188, 283, 284 ; Hare on Disc. 256-259. PLEA 269 226. Pleas to the hill or to the frame of the Ull of discovery. The plea that another suit is pending, or that there is a want of parties, or that there is un- necessary splitting up and multiplying suits, it is said, does not apply to a bill of discovery.^'" Lord Redesdale states that a demurrer for multifarious- ness would hold to a bill of discovery for several distinct matters against several distinct defendants in one bill,''" and Mr. Justice Story suggests that it is possible that a plea to a bill of discovery for mul- tifariousness would hold, as also the plea that the parties are not the same in the suit in equity as in the suit at law, in aid of which the discovery is sought.^" 227. Pleas in bar to bills of discovery. The pleas most usual are those which render it improper for a court of equity to compel the discovery sought, e. g., 1, that the discovery may subject the defendant to pains or penalties or a criminal prosecution. 2, that it will subject him to a forfeiture or something in the nature of a forfeiture. 3, that it will betray the confidence reposed in him as counsel, attorney or arbitrator, and 4, that he is a purchaser for valuable consideration without notice of the plaintiff's title."" 238 Mitf. PI. 200, 280 ; Beames's PL Eq. 273, 271 ®9Mitf. PI 200,201. ''«' Story's Eq. PI. 820. See g 190, ante. Glynn vs. Soares, 3 M. & K. 450, 469-472. Whether when suit at law is brought by an agent in his own name, the defendant at law may bring a bill for a discovery against the principal in aid of his defence at law, see Story's Eq. PI., n. 6, ? 820, and §§ 569, 610, note; and oases cited. 2" Milf. PI. 284. And it might be added, as Judge Story suggests, that it would also be a good plea in bar to a bill of discovery that the bill sought a discovery of the defendant's title, and not merely of the plaintiff's title, if the 270 DEFENCE TO SUITS IN EQUITY. 228. Pleas to amended hills. Pleas to amended bills may be put in upon the same grounds as pleas to original bills; but if a defendant has answered the original bill his answer may be read to counter- plead his plea to the amended bill, and if upon so facts should be so disguised in the bill as not to be open to demurrer. Story's Eq. PI. 824, n. 2. Whether a defendant to a bill seeking a discovery in aid of an action at law can plead in bar to the discovery, that which is merely matter of legal defence to the action at law, is a question upon which authori- ties are conflicting. See Story's Eq. PI. 821, and notes ; Mitf PI. 187 ; Hare on Discovery 34, 41, 46-62 ; Wigram Disc. 153, 156-162. Lord Eedesdal'e states that the pleas to bills of discovery are nearly the same with those which are mentioned as causes of demurrer to discovery. They may be 1, that the plaintiff's case is not such" as entitles a court of equity to assume a jurisdiction to compel a discovery in his favour; 2, that the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery ; 3, that the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him even for the purpose of discovery only ; 4, that the situation of the defendant renders it improper for a court of equity to compel discovery. Mitf. PI. 282. Pleas to bills of discovery have been discussed under the several heads : 1, to the jurisdiction ; 2, to the person ; 3, to the bill or frame of the bill ; and 4, pleas in bar, properly so called, to such bills: 1. To the jurisdiction. Such objections aa, that the subject is of a political nature; that another court is competent to give the discovery; that the tri- bunal or cause is not of such a character as will aid the discovery, (as if the cause be before arbitrators, or be of a criminal nature, or the plaintiff has no title or interest in the suit.) 2. To the person. Either, of the plaintiff, that he has no right or title or ability to call on the defendant for the discovery, such as that the plaintiff is outlawed, or an alien, or bankrupt, &c., or that he has no title to the character he assumes ; or, o/ the defendant, that he is not liable or compellable to make the discovery sought by the bill, [such as that he has no interest in the sub- ject matter, or is a mere witness, or does not sustain the character in which he is sued, or that there is want of privity between him and the plaintiff to sustain the bill.] 3. To the bill or frame of the bill. [The pendency of another suit, want of parties, splitting up or multiplying suits, do not apply to a bill of discovery. Story's Eq. PL, 820.] Judge Story, following Lord Redesdale, suggests that the plea that the bill is multifarious would probably be good. Story's Eq. PI. 820, Mitf. PI.. 200, 201. And a plea for misjoinder of parties. Story's Eq. PI. 820, Olynn vs. Soares, 3 M. & K. 450, 469-472. And a plea that PLEA. 271 reading it, it should appear that the facts stated upon the answer to the original bill would operate to avoid the defence made by the plea to the amended bill, the plea would be overruled."" 229. Pleas to supplemental bills, to bills of re- vivor, to cross bills, to bills of review, and to bills in the nature of bills of review, will be treated of after the nature and character of those bills have been discussed. Of the form of pleas. 230. A plea is preceded by a title in the following form: "The plea of A. B., a defendant, to the bill of complaint exhibited against him by X. Y.," &c., or, "The joint and several plea of A. D. and C. D., de- fendants, to the bill of complaint exhibited against them by X. Y.," &c. When accompanied by an an- swer, it is entitled thus: "The plea and answer," or, "The joint plea and answer," or, "The joint and several plea and answer."''*' 231. A plea, like a demurrer, is introduced by a protestation against the confession of the truth of any matter contained in the bill.'** Its commence- the defendant in the bill was not a party to the suit at law, in aid of which discovery is sought. Story's Eq. PL, 820. And a plea that the matter in controversy is beneath the dignity of the court to hear. Ibid. 4. Pleai in bar. Snch as, a plea of a former judgment, or of a former decree on the merits, or a plea of the statute of frauds, or a plea of the statute of limitations, or of release, or of a stated account, or of an award. ^ Mitf. PI. 299, Eyliard vs. White ; lb.. Nod vs. Ward, 1 Madd. 322 ; Hyldyard vs. Creasy, 3 Atk. 303. 2«When the plea of man and wife, the words "and several" are not in- aerted. 2«Dan. Ch. Pr. (Perk.) 704. 272 DEFENCE TO SUITS IN EQUITY. ment is as follows: "This defendant (or, these defendants,) by protestation not confessing or ac- knowledging all or any of the matters in the said complainant's bill of complaint mentioned and contained to be true in such manner and form a& the same are therein set forth and alleged for plea," &c. • 232. The extent of the plea, that is, whether it is- intended to cover the whole bill, or a part of it only, and what part in particular is usually stated in the next place, and this, as before observed, must be clearly and distinctly shewn. '*^ Thus in the form in preceding section, after "plea" say: "To the whole of the said bill [or, to so much and such part of the said bill as prays, &c., or seeks a discovery from this defendant, Ac."]^*" 233. The matter relied upon as an objection to the suit or bill generally follows, accompanied by such averments as are necessary to support it; and it should be noticed that where a plea is of matter which shews an imperfection in the frame of the suit, it should point out in what that imperfection consists.'" 2« 2 Dan. Oh. Pr. (old) 206. 2^ In the English courts when the plea is to the whole relief sought by the bill, but it is necessary that the defendant should support his plea by an answer as to the facts stated which may avoid the bar, the plea must not extend to the whole bill, but should be in the form of a plea to all the relief and all the discovery sought hy the hill except certain parts of the discovery (which are to be answered). 2 Dan. Ch. Pr. (old) 206. This is not necessary in the United States Circuit Courts (36th, 37th rules U. S. Supreme Court), nor is it necessary in the Virginia State Courts. See Sec. 166, and n. 102, and Sec. 166 a. "' 2 Dan. Ch. Pr. (old) 207. PLEA, 273 234. The conclusion of a plea is as follows : "Wherefore the defendant prays judgment of this honorable court whether he shall be compelled to make any farther or other answer to the said bill, and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained'"** 235. Pleas should be signed by counsel. In the United States Circuit Courts it is necessary to com- ply with the requisites set forth in a previous sec- tion. ''" In the Virginia State Courts the practice is usually regulated by special rules prescribed by the respective courts. Notice should be taken of the statute, Code, 1873, chapter 167, sections 20, 24, 33, 34, 41 and 47 ; and chapter 137, section 8. 235 a. What pleas under oath. In the United States Circuit Courts an affidavit is necessary to every plea. See sec. 236, p. 274. In the Virginia State Courts the provisions of the Code, 1873, chap. 167, sec. 20, 31, require an affi- davit to pleas to the jurisdiction; and in equity, as at law, if there is an allegation that any person made, endorsed, assigned, or accepted any writing, no proof of the handwriting will be required unless the fact be denied by an affidavit with the answer, plea, or other pleading which puts it in issue. Code 1873, ch. 167, sec. 39. And so when plaintiffs sue, or are sued as partners, and their names are set forth , ^^ When the plea is accompanied by an answer, the answer should follow the conclusion of the plea. 2 Dan. Ch. Pr. (old) 210. 2«Sec. 139,pp. 171, 172. 35 274 DEFENCE TO SUITS IN EQUITY. in the bill, or where plaintiffs or defendants, sue or are sued as a corporation, it will not be necessary to prove the fact of the partnership or incorporation, unless with the pleading, which puts the matter in issue, there be an affidavit denying such partnership or incorporation. Code 1873, ch. 167, sec. 40. 235 h. Lord Redesdale said, on the authority of the Practical Register, that pleas to the jurisdiction of the court,'™ or, in disability of the person of the plaintiff as well as pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself, or any other court, may be put in with- out oath. Mitf. PL, p. 301. Daniell regards this as too broad a statement of the rule, and suggests the following : " The best mode to be adopted by the practitioners for determining the question will be to consider how far the oath will be necessary in the ovent of the plea being considered valid, and issue being joined upon it to establish its truth by evi- dence upon oath at the hearing ; and in all cases where such evidence upon oath would be required at the hearing, to let the plea be accompanied by the oath of the defendant." ''' 236. The following is a general formula of a plea in equity : General Formula of Plea in Equity. The plea of A. B. a defendant to the bill of com- plaint exhibited against him by X. Y. in the court of . 250 See 2 235 a as to pleaa to juriBdiction in Virginia State Courts. »i2Dan. Ch. Pr. (old)211. PLEA. 275 This defendant, by protestation, not confessing or acknowledging all or any part of the matters and things in said bill of complaint contained, to be true in manner and form as the same are therein set forth, for plea nevertheless to the said bill, doth plead and aver that &c., [here state substance of plea.''"] Wherefore, this defendant prays judgment of this honorable court whether he shall be com- pelled to make any farther or other answer to the said bill and prays hence to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.''" M. P., p. d. Certificate of Cownsel in United States Circuit Courts, I, M. P., of counsel for the defendant above named, practicing in the United States Circuit Court for the circuit and district of do hereby certify that in my opinion the foregoing- plea is well founded in point of law. M. P. Affidavit to Plea in United States Circuit Courts. Eastern District of "Virginia, to-wit : I, X. X., a commissioner of the Circuit Court of the United States for the Fourth Circuit and Eastern 252 In matters of substance there must be the same strictness and exactness in pleas in equity as in pleas at law. Story's Eq. PI. 658 ; Beames's PI. Eq. 8, 9 ; Mitf. PI. 294. 253 This formal conclusion of the plea is deemed sufficient in all cases in which the plea is to the whole bill. See, however, Story's Eq. PI., § 194, and Beames's PI. in Eq. 46, 47. 276 DEFENCE TO SUITS IN EQUITY. District of Virginia, do hereby certify that A. B., the defendant named in above plea, personally ap- peared before me in the district aforesaid, and made oath that the said plea is not interposed for delay in the suit in which it is made, and that the said plea is true in point of fact. Given under my hand this day of 18—. X. X., comm'r, &c. 237. The following is the form of a plea to part of a bill: Form of Flea to part of a Bill. The plea of A. B. to the bill of complaint ex- hibited against him by C. D. in the court of . This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill contained, to be true in such manner and form as the same are therein set forth and alleged for plea to so much and such part of the said bill as prays, &c., (here state the part of the bill pleaded to and state the substance of the plea). Wherefore the defendant doth plead to so much of the said bill as is hereinbefore particu- larly mentioned and prays the judgment of this honorable court, whether he should be compelled to make any farther answer to so much of the said bill as is hereinbefore pleaded to.'" [After this, if ^^ If the plea is intended as a bar to any part of the bill, its conclusion should not be more extensive than the subject matter to which it relates. It should not conclude to all the relief prayed for when the matter pleaded can PLEA. 277 3)roper, follows an answer to the part of the bill not pleaded to.] 238. The following is the form of a joint, or of a joint and several plea : Form of Joint and of Joint and Several Piea. The joint plea of James B. and Caroline his wife [or the joint and several plea of James B. and Robert B] to a bill of complaint exhibited against them by A. Y. in the court of . These defendants, &c., (as in other forms). Pleas to the Jurisdiction. 239. The following are the forms of a plea to the jurisdiction: Form of Plea to the Jurisdiction in the Virginia State Courts. In the Circuit Court of the County of Henrico, March Rules, 187—. James R. Ramos, .... Defendant. ads William W. Williams, . . ■ Complainant. The plea of James R. Ramos, defendant, to the bill of complaint exhibited against him and C. C. in this court by William W. Williams. only bar a part of that relief. But the remedy for this defect is mild and liberal. The plea will be ordered to stand for so much of the bill as it properly covers and no more, and the defendant may be required to answer to the residue. French, &e. vs. Shotwell, 5 John C. E., 562 ; S. C, 20 John Rep. 668. 278 DEFENCE TO SUITS IjST EQUITY. This defendant, for plea to the said bill, saith that he is now and was at the time of the institution of this suit, a resident of the county of Hanover, and not a resident of the county of Henrico, that his co- defendant, C. C, is now and was at the time of the institution of this suit, also a resident of the county of Hanover, and not a resident of the county of Henrico, and that they are the sole defendants in the said suit, and that said suit is brought to subject to the alleged judgment of the said plain- tiff certain land every part whereof lies in the county of Hanover, and not any part thereof in the county of Henrico/'' Wherefore the defendant doth plead to the said bill and to the jurisdiction of the said court, and prays the judgment of the court whether he should be compelled to make any farther or other answer to the said bill, and prays to be hence dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. C. K, p. d. Affidavit should be added to this plea. Code 1873, ch. 167, §§ 20, 38. Plea to Jurisdiction in United States Circuit (hurts. [When the jurisdiction is founded on the citizenship of the 'issgee Code 1873, chap. 165, g§ 1, 2, 3. The writer is not fully satisfied aa to the sufficiency of this plea. If the second section of chapter 165, which uses the word " action" alone [not "action or suit"] shall be held to apply to proceedings in equity, then the plea should (as similar pleas in actions at law) contain the averment that "the cause of suit did not arise, and no part thereof arose in the county of Henrico, but the cause of suit arose, and every part thereof arose in the county of Hanover, a county other than that in which the suit is brought.'' In every case in which the facts will justify the pleader in making this averment, he should make it. PLEA. 279 parties in different States, if the bill makes the necessary aver- ments of the citizenship of the plaintiff and that of the defendant, BO that upon the face of the bill the jurisdiction attaches, the defendant, if he means to contest the alleged citizenship, must do it by a plea to the jurisdiction; he is not at liberty to put the citizenship in issue by a general answer. Livingston vs. Story, 11 Pet. 351, 393; Dodge vs. PerUns, 4 Mason, 435; Story's Eq, PI., § 721. When the citizenship, in such case, is not distinctly alleged, the bill will be dismissed on demurrer or by motion. Story's Eq. PI. §492.] ^ In the United States Circuit Court for the : circuit and district of Virginia. James R., Defendant. ads Roberts., .... Plaintiff. This plea of James R'., a defendant to the bill in equity exhibited against him in the said court by Robert B., plaintiff. This defendant, by protestation, not confessing or acknowledging all or any part of the matters and things in said bill contained, to be true in manner and form as the same are therein set forth for plea, nevertheless to the said bill, doth plead and aver that the said plaintiff, Robert B., is not now and was not at the time of filing said bill, and instituting this suit, a citizen of the State of Pennsylvania, as in the said bill alleged, but the said Robert B. was, at the time of filing said bill and instituting this suit, and is now a citizen of the State of Virginia, and this defendant was then and is now also a citizen of the said State of Virginia. Wherefore this defendant prays judgment of this honorable court whether he shall be compelled to make any other or farther 280 DEFENCE TO SUITS IN EQUITY. answer to the said bill,, and prays hence to be dis- missed with his reasonable costs and charges, in this behalf most wrongfully sustained. J. M., p. d. The words in italics may be omitted. Add affidavit to plea, see p. 171, and certificate of counsel, see p. 171. 240. The following are forms of pleas to the per- son. PLEAS TO THE PERSON. Form of Plea of Infancy of Plaintiff. (Commence as in general- formula, sec. 236, p. 274, then proceed:) that the said complainant at the time of filing his said bill was and now is an infant under the age of twenty-one years, that is to say, of the age of years or thereabout. (Conclude as in general formula.) Form of Plea that Plaintiff is a married woman. (Commence as in general formula, sec. 236, p. 274, then proceed:) that the said complainant at the time of filing her said bill was and now is under cover- ture of one James B. her husband, who is still living, and in every respect capable if necessary of instituting a suit in equity in her behalf. (Conclude as in general formula.) Form of Plea of Bankrujptcy of Plaintiff. (Commence as in general formula, sec. 236, p. 274, PLEA. 281 then proceed:) that the said complainant was on the day of in the year 18 — , duly adjudged and declared a bankrupt by the district court of the .United States for the eastern dis- trict of Virginia, and on the day of the said plaintiff did assign, transfer and convey unto his assignee in bankruptcy, all &c., (here set forth terms of assignment,) and therefore, and as the right claimed by the said bill to the estates therein mentioned, and the rents and profits thereof appears by the said bill to have accrued, and if the same is just and well founded, did really accrue before the said complainant was adjudged and declared a bankrupt as aforesaid, and before his pro- perty was assigned and transferred as aforesaid to said assignee in bankruptcy, this defendant is advised that the complainant's right and interest to, and in the said estate and the rents and profits thereof was, at the time of filing the said bill, and is now, A''ested in the said assignee in bankruptcy of the said complainant, all which this defendant doth aver to be true. Wherefore, &c., (conclude as in general formula.) The form, as drawn, is believed to be sufficiently full and specific. Judge Story says, however, (citing Carleton vs. Leightm, 3 Meriv. 667, and Beames's PI. in Eq. [122, 123,]) that "it seems that in a plea in bankruptcy all the facts and circumstances, which are necessary to establish the sufficiency of the proceedings in bankruptcy, and to show the party to be lawfully declared a bankrupt, must be set forth." Story's Eq. PL § 726. This doctrine, however sustained by 36 282 DEFENCE TO SUITS IN EQUITY. English authorities, is not believed to be the law here. The reasoning of the Lord Chancellor in the case ■cited (see 3 Meriv. 667,) is not applicable to the bankrupt law in this country. An adjudication of bankruptcy is conclusive, un- less it be afterwards set aside by the court, whose officer has adjudged the petitioner a bankrupt. A fuller form may be found in Curtis's Eq. Prec. 359-161. -Form of Plea that Plaintiff' was not Heir to the Per- son under whom he claims as Heir. ^ (Commence as in general formula, sec. 236, p. 274, then proceed :) that the plaintiff is not the heir of the said Robert B. in the said bill named, as the said plaintiff in his said bill has untruly alleged. Wherefore, &c., (conclude as in general formula pp. 274, 5.) J. M. P., p. d. Form of Plea that Plaintiff is an Alien Enemy. (Commence as in general formula, sec. 236, p. 274, then proceed:) that the said plaintiff is alien born of foreign parents, and in foreign parts, that is to say, at Paris in the Republic of France and out of allegiance to the United States of America, and under allegiance to the said Republic of France, ■which is an enemy to the United States of America, •of which the defendant is a citizen, and the said plaintiff also before and at the time of filing his said bill was and now is an enemy of the said ^"'See Beames on Pleas (edit. 1824) 127-132. Purely negative pleas are ^ood. See Story's Eq. PI., \ 668. PLEA. 283 United States of America, and entered into the limits of the said United States of America without the safe conduct of the President or other lawfully authorized authorities of the United States of America, and has not heen made a citizen of the said United States of America by naturalization or otherwise. Wherefore, &c., (conclude as in general formula.) See the form of a plea of Alien Enemy in Beames on Pleas, 335, 336. See Albrecht vs. Seissman, 2 Ves. & B., 323. Plea that Plaintiff is not Administrator of the Person he claims to be Administrator of. (Commence as in general formula, sec. 236, p. 274, then proceed :) that the said plaintiff is not nor ever has been administrator of the goods and chattels, rights and credits, which were of the said Robert J., deceased, in the said bill named as the said plaintiff in his said bill has untruly alleged. Wherefore, &c., (conclude as in general formula.) J. M. P., p. d. Plea that the Defendant is a married woman. (Commence as in general formula, sec. 236, p. 274, then proceed:) that this defendant at the time of filing the aforesaid bill was, and now is, under cover- ture of one James R. her husband, who is still living, and capable of defending the suit in her be- half. (Conclude as in general formula.) 284 DEFENCE TO SUITS IN EQUITY. Plea that the Defendant was never Administrator. (Commence as in general formula, sec. 236, p. 274, then proceed :) that he, the defendant, is not executor or administrator of the said B. in the bill men- tioned, or the legal representative of the said B., which said representative or representatives ought to be made party or parties to the complainant's said bill, as this defendant is advised. All which matters and things this defendant avers to be true, and pleads the same to the said bill. Wherefore, &c., (conclude as in general formula.) 241. The following are forms of pleas to the bill. PLEAS TO THE BILL. Plea of a former suit depending for the same matters in har to a hill for account.'"'' (Commence as in general formula, sec. 236, p. 274, then proceed:) for plea saith that the said complain- ants, together with R. C, since deceased, did at the rules held on the first Monday in June, 18 — , ex- hibit in this honorable court their bill of com- plaint which was afterwards amended against J. S., now deceased, and this defendant and Gr. S., now de- ceased, thereby praying amongst other things that &c., (stating the prayer); and this defendant for plea saith that he put in his answer to the said amended, bill, and which suit is now depending in this honorable court; and this defendant avers that the said bill now exhibited against this defendant by 2" Van Hethuysen, 658. PLEA. 285 the ssdd complainants is for the same matters as the amended bill before exhibited by the said complain- ants against this defendant, and the said J. S. and the said Gr. S., now respectively deceased, to which this defendant has appeared and answered, and which suit is still depending and undetermined ; wherefore this defendant doth plead the said former bill and answer to the said complainants' now bill, and humbly prays the judgment of this honorable ■court, whether he shall be compelled to make any farther or other answer thereto: and this defendant prays to be hence dismissed with his reasonable •costs and charges in this behalf most wrongfully sustained. Flea that another suit is depending in another court of competent jurisdiction as to part of the matters embraced in the Bill. The plea of A. B., a defendant, to part of the bill •of complaint exhibited against him by X. Y. in the court of county, and the answer of the said A. B. as to the residue of said bill. This defendant by protestation not confessing or acknowledging all or any part of the matters and things in said bill of complaint contained to be true in manner and form as the same are therein set forth, for plea as to so much and such part of the said bill as prays a discovery from this de- fendant of, &c. (here recite discovery asked for), ■and to so much and such part of the said bill as prays relief against this defendant for. &c. (here recite the relief asked for, to which plea is filed), 286 DEFENCE TO SUITS IN EQUITY. that before the said complainant's said bill was filed in this court, to- wit: on or about the day of , the said complainant commenced a suit in the court of county against this de- fendant in respect to the said (here recite the matter about which discovery and relief are asked and objected to), and such suit is still depending in the said court, which, as this defendant avers, is a court of competent jurisdiction to afford the discovery and relief aforesaid, which the said complainant seeks by his said bill. Wherefore this defendant avers and pleads the same to so much of the said bill as is hereinbefore particularly mentioned, and prays the judgment of this court whether he should be compelled to make any farther answer to so much of the said bill as is hereinbefore pleaded to. And not waiving, but relying on his said plea for answer to so much of the said bill as is not above pleaded to, this defendant answers and says, &c. Form of Plea of want of proper Parties. (Commence as in general formula, sec. 236, p. 274, then proceed:) that in the said bill the plaintiff seeks to subject a certain tract of land lying in the county of H. to the payment of his judgment against this defendant; that by agreement, under their hands and seals, made between this defendant and the personal representative and heirs-at-law of James J., on the day of , to which agree- ment the said plaintiff was a party, and signed and sealed the same, it was covenanted and agreed that any claim which the said plaintiff might have or PLEA. 287 assert against this defendant or his property, either at law or in equity, by reason of the claim on which said judgment was recovered, should be satisfied jointly from the property of the said James J., or belonging to his estate, and from the property of this defendant ; that the said James J. died several years ago possessed of, and entitled to, personal pro- perty, and also real estate, which should contribute to the payment of the claim of the plaintiff asserted in this suit, and Robert J., the personal representative of said James J., and Susan, Robert, and John J., heirs-at-law of the said James J., ought to be, but are not^ made parties to the said bill. Wherefore, &c. (Conclude as in general formula.) Form of Plea of want of proper Parties."^ (Commence as in general formula, p. 274, then proceed:) that no part of the sum of |2,000, for securing the repayment whereof the bond in the bill mentioned was executed, was paid to, or received by, the intestate of this defendant, the said H. E., but the whole was paid unto A. W. in the said bond and in the said bill also named and received by him for his sole use, and that the said H. E. was only a surety for the said A. W. in the said bond; and the said complainant afterwards accepted a composition for what he alleged to be due on the said bond from the said A. W., without the privity ^^It is questioned in the law books whether a plea for want of proper par- ties is a plea in bar, or a plea in abatement. See Story's Eq. PI., § 745, n. 1 ; Mitf. PI. 220, 280, 281 ; Beames's PI. in Eq. 149, 150; Willis's Chan. PI. 5'72, 573. It is not a proper plea to a bill of discovery merely. Story's Eq. PL, g745. 288 DEPENCE TO SUITS IN EQUITY. or consent of the said H. E. in his lifetime, or of this defendant since the death of the said H. E., which occurred on the day of ;'" that the said A. W. died several years ago seized of real estate, and also possessed of personal estate, and left a will duly probated, whereby he devised a part of his real estate to John B. and his heir-at-law,. William W., and the said devisee of part of his real estate, to-wit: John B., and also the representative of his personal estate, to-wit: James Johnson, and the said William W. ought to be, but are not, made parties to the said bill. Wherefore, &c. (Conclude as in general formula.) Form of Plea to a Bill for Partition hy a Mort- gagee, who has been made a Party. (Commence as in general formula, p. 274, then proceed :) that he is the mortgagee of the undivided share of A, M. in the land and premises in the bill mentioned under a mortgage made and executed on the day of by A. M., and that he, the said defendant, has no other interest in the said property than under the mortgage aforesaid; and in this suit for partition by Laura C. against the said ^'^Ib it necessary that a plea of this description should point out the proper parties and name them ? Vide, Beames on Pleas 158 ; Meriwether vs. Mellish,. 13 Ves. 435; Oochbum vs. Thompson, 16 Ves. 325 ; Fawkes vs. Prait, P. Wms. 592 ; Mitf. PI. 280. A plea containing the averment thus : " And that the said A. W. died several years .^go, seized of considerable real estate, and also possessed of a large personal estate, and that his heir-at-law, or the devisee of his real estate, and also the representative of his personal estate ought to be, but are not, made parties to the said bill," was held good by Lord Sard- wiche in Ashurst vs. Ayres, 3 Atk. 117. See the plea in Willis's Eq. PI. 571 j Curtis's Eq. Preo. 175, 176; and Dan. Ch. Pr. (Perk.). PLEA 289 A. M. and Robert C, the co-defendants of this de- fendant, this defendant should not have been im- pleaded. Therefore this defendant prays judgment, &c. (Conclude as in general formula.) PIJACTICAL NOTE. A partition never affects the rights of third persons. Agiur vs. Fairfax, 17 Ves. 544. Mortgagees and judgment creditors have no concern with it. Watten vs. Copeland, 7 John. Oh. Eep. 140. And if they are made parties to the suit it will be dismissed as to them. Sihring vs. Mersercan (& als., 1 Hopk. Ch. R. 501. When the incumbrance is created upon the undivided share of one of the parties, and the estate is then divided, such incumbrance will continue a lien on the share set off to the party, whose undi- vided share was before bound. Walworth, Chancellor, in Sarwood vs. Kirhy, 1 Paige 471. Qucere as to the effect of the Statute of Virginia, in relation to Partition on the doctrines announced in this note. 242. The following are forms of pleas in bar. PLEAS IN BAB. Pleas of Statutes. Form of Plea of Statute of Limitations. (Commence as in general formula, p. 274, then proceed:) that if the complainant ever had any cause of action or suit against this defendant, for or concerning any of the matters in the said bill men- tioned, which this defendant doth in no sort admit, such cause of action or suit did accrue or arise above years next before the filing of the said bill, or before serving or suing out process against this defendant, to appear to and answer the said bill, nor did this defendant, at any time within years next before the said bill was exhibited, or pro- 37 290 DEFENCE TO SUITS IN EQUITY. cess served on, or issued out against this defendant, to appear to and answer the same, promise, or agree to and with the said plaintiff or any other person in writing™ to come to any account for, or to make satisfaction, or to pay any sum or sums of money for or by reason of the said matters charged in the said bill. Wherefore, &c., (conclude as in general formula.) Form of Plea of Statute of Frauds. (Commence as in general formula, p. 274, then proceed:) that neither this defendant, nor any per- son by him authorized, did ever sign any contract or agreement in writing, for making or executing any sale or conveyance to the complainant of the land and premises in the bill mentioned and described, or any interest thereof, or to any such effect, or any memorandum or note, in writing, of any such agree- ment. Wherefore, &c., (conclude as in general formula.) Form of Plea of Usury. (Commence as in general formula, p. 274, with the modification suggested in the subjoined prac- tical note, then proceed:) that the claim of the said plaintiff against this defendant is founded upon a loan of money to this defendant by the said plaintiff, to-wit: the loan of the sum of | ; and for the said loan the said plaintiff required 260 The words in italics are designed to ca!I attention to the Statute Code 1873, ch. 146, 1 10. They are not deemed necessary to the validity of the plea. PLEA. 291 of this defendant that he should pay to him, the said plaintiff, interest thereon, at the rate of eight per centum per annum, contrary to the Statute of Virginia, in such case made and provided, and this defendant agreed to pay the said usurious in- terest of eight per centum per annum, and the said agreement to pay the usurious interest as aforesaid, entered into and formed a part of the said contract of lending, and thereby, and by virtue of the Statute of Virginia, in such case made and pro- vided all the interest on the said sufa of $ became, and was, and is forfeited, and all the se- curities for the payment of the same, became, and were, and are void. Wherefore, &c. (Conclusion.) PEACTICAL NOTE. Under the present Statutes of Virginia, Sess. Acts 1874, pp. 134-5, in force June 1st, 1874, the interest only is forfeited in the case of usury. The plea, then, should in conformity with the general rule in equity practice, be to only so much of the bill as claims the interest and not to that part claiming the principal. But see Sec. 8, Sess. Acts 1874, p. 135. If the court should hold that a party violating the laws against usury, has no right to be heard in a court of equity, then, the plea would be a full plea in bar of the suit, and the conclusion of the plea should be as in the general formula, p. 274. But the court under the present statutes would hardly deprive a plaintiff of his right to the principal. See the Statute, Sess. Acts 1874, p. 134-5, sec. 5, cited below."*' Unless there be strong reasons against relying on the usury in an answer, it is suggested that instead of pleading it by a separate plea it would be better to embody the defence of usury in the answer. 2M " g 5. AH contracts and assurances made directly or indire'ctly for the loan or forbearance of money or other thing at a greater rate of interest than is allowed by the preceding section, [i. e., 6 per cent, per annum,] shall be deemed to be for an illegal consideration as to the excess beyond the principal amount so loaned or forborne." 292 DEFENCE TO SUITS IN EQUITY. 242. The following are forms of pleas of matters of record or as of record. PLEAS or MATTERS OF EECOED OE AS OP EECOED. Form of a Plea of Decree to part of case made hy the Bill, and answer as to the residue. The plea of J. B., executor of Alexander B. de- ceased, a defendant, to part of the bill of complaint exhibited against him by Robert M. N. and Jane M. his wife, in the court of , and the answer of the said J. B., executor of said Alexander B, deceased, to the residue of said bill. This defendant, by protestation, not confessing or acknowledging all or any part of the matters and things in said bill of complaint to be true in manner a^d form as the same are therein set forth, as to so much of the said bill of the complainants as seeks to compel this defendant to admit assets of his late father, Alexander B., de- ceased, come to his hands, or to set forth an inven- tory of the personal estate of his father come to his hands, or that this defendant may thereout pay to the said complainants the sum of $ in the said complainant's bill mentioned, with interest on the same from the time of the testator's death, this defendant doth plead thereto, and for plea saith that in the year , Jane M., now the wife of Robert M. N., (the complainants aforesaid) who was then unmarried, exhibited her bill of complaint in the ■ court of , against this defendant, pray- ing that the legacy bequeathed her by the said testa- PLEA. . 293 tor might be paid, being the same legacy mentioned in the said bill of complainants, and in the said suit by the said Jane M., this defendant filed his answer to her said bill, submitting to the said court to say what right and interest the said Jane M. was en- titled to under the said testator's will, and the said court of made its decree in said cause, decreeing that the said Jane M. was entitled only to $ , with interest from the day of , which decree was duly signed and enrolled,''^'' and the said decree remains of record in the said court wholly unreversed, and the said sum of $ , with interest as aforesaid, was fully paid to the said Jane M. on the day. of , prior to her intermarriage with the said complainant, Robert M. N., and was accepted by her in full discharge of her legacy aforesaid, and of all right and interest which she had or could have in or to the personal estate of the said testator, or any part thereof; all which matters and things this defendant doth aver and plead in bar to so much of the said complainants' bill as is hereinbefore particularly mentioned, and prays the judgment of this honorable court, whether he should make any further answer to so much of the said bill as is hereinbefore pleaded to. And the said defendant, for answer to so much, &c., &c. Plea of former Suit for the same Matter being dis- missed on hearing. (Commence as in general formula, page 274, then ^^ See as to entering and recording decrees the chapter on Decrees in this treatise. 294 DEFENCE TO SUITS IN EQUITY. proceed:) that the said complainant heretofore, to- wit: on the day of exhibited his bill of complaint in the court of against this defendant, by which bill the said complainant sought to subject the land of this defendant, lying and being in the county of , containing acres, being the same land mentioned in the bill to which this is a plea, to the judgment of the said complainant being the same judgment mentioned in the present bill of complaint, and the said complain- ant in his said former bill of complaint, alleged that the said judgment was a lien on the said land, as he has alleged in the present bill, and prayed for the identical relief against this defendant's said land that he has prayed for in his present bill ; and to the said former bill this defendant filed his answer, denying that his said land was subject to the said judgment, and examinations of witnesses for the said complainant and for this defendant were had and taken, and said former bill of complaint with the said answer and the examinations of witnesses came to a hearing before the said court of , and the said court, after full hearing thereof, on the day of , 18 — , dismissed the said former bill, and decreed and ordered that the said complainant should pay to this defendant his costs by him about his defence in that behalf ex- pended ; all which matters and things this defendant doth aver and plead in bar to the said present bill of complaint of the said complainant, wherefore this defendant prays judgment of this honorable court whether he shall be compelled to make any PLEA. 295 farther or other answer to the said bill, and prays hence to be dismissed with his reasonable costs and •charges, in this behalf most wrongfully sustained. K M., p. q. Form of Plea of Judgment fmally determining the Bights of the Parties in Bar to a Suit in Equity. (Commence as in general formula, page 274, then proceed :) that before the institution of their present bill of complaint against this defendant, to-wit : on the day of , the said complainants instituted their action at law in the court of against R. M. and this defendant, by which said action at law the said complainants demanded «,nd claimed of the said R. M. and this defendant the sum of % , with interest thereon from the day of , as debt due by the said R. M. and this defendant to the said complainant; and the said R. M. and this defendant pleaded to the said action three several pleas, to-wit: the plea that the right of action did not accrue to the said plain- tiff within five years prior to the institution of said action ; the plea that the debt therein mentioned had been fully paid by the said R. M. and this defend- ant; and the plea that the action of the said com- plainant was founded on an usurious consideration, in this, that the debt therein demanded was for the loan and forbearance of money to the said R. M. and this defendant at a greater rate of interest than six per centum per annum, and issue being joined on the said several pleas, the whole matter was sub- 296 DEFENCE TO SUITS IN EQUITY. mitted to a jury, who returned a verdict finding for the said R. M. and this defendant on all the pleas before mentioned, and the said court of gave judgment in favor of the said R. M. and this defendant, against the said complainant j and the debt set forth and declared in the said com- plainant's bill on which the attachment against this defendant's property issued is the same identical debt on which he instituted his action aforesaid, and on the trial of which judgment went against the said complainant as aforesaid, all which matters and things this defendant doth aver and plead in bar to the said bill of complaint of the said complainant. Wherefore, &c., (conclude as in general formula.) 243. The following are pleas in bar of matters in pais. PLEAS IN BAR OF MATTERS IN PAIS."* Form of a Plea of Stated Account. (Commence as in general formula, page 274, then proceed :) that on the day of , which was previous to the said bill of complaint be- ing filed, the said complainant and this defendant did make up, state and settle an account in writing ^^ Pleas in bar of. matters in pais must be upon oath of the defendant. Story's Eq. PI. 696. The principal matters in pais which may be relied on by plea are, according to Lord Redesdale, a stated account, award, release, will or conveyance or some instrument controlling or affeotiJg the rights of the parties, plea of any statute creating bar to the plaintiff's demand. Mitf. PI. 258. Judge Story puts as such principal pleas, release, stated account, settled account, award, purchase for valuable consideration, plea of title in defendant. Story's Eq. PI. 795. PLEA. 297 of all sums of money which this defendant had before that time, by the order and direction and for the use of the said complainant received, and of all matters and things thereunto relating, or at any time before the said day of , being or depending between the said complainant and this defendant, (and in respect whereof the said complainant's bill of complaint has been since filed;) and the said complainant, after a strict examination of the said account and every item and particular thereof, which this defendant avers, according to the best of his knowledge and belief, to be true and just,'"* did approve and allow the same, and actually received from this defendant the sum pf $ , the balance of the said account, which by the said account appeared to be justly due to him from this defendant and the said complainant thereupon, and on the day of , gave to this defendant a receipt or acquittance for the same under his hand in full of all demands, which said receipt or acquittance is in the words and figures following,, that is to say (here copy the receipt) as by the said receipt or acquittance now in the possession of this^ defendant and ready to be produced to this honor- able court will appear. Wherefore, &c., (conclude as in general formula.) PRACTICAL NOTE. To a bill charging error or fraud, it ia necessary to meet tli08& charges by averments in the body of the plea, and also to support the plea by an answer denying them. Mitf. PI. 259, 260; Beames on PI. 222-226 ; Story's Eq. PI. § 802. 'Story's Eq. PI. 802. Mitf. PI. 259, 260. 38 -98 DEFENCE TO SUITS IN EQUITY. Form of a Plea of Belease. (Commence as in general formula, page 274, then proceed:) that previously to the said complainant's bill being filed, to- wit: on the day of , the said complainant in consideration of the sum of $ ; — , then paid to him by this defendant/^ by a certain writing under his hand and seal, ready to be produced to this honorable pourt, did release and forever quit claim this defendant (among other things) the several matters and things in the said complainant's bill mentioned and complained of, and an account of which is thereby sought against this defendant, and this defendant avers that the said release was freely and fairly given and exe- cuted by the said complainant, on the day the same bears date, and that the said complainant well knew the nature and effect thereof previously to executing the same; and that tbe sum of % , so paid by this defendant to the said complainant, was a full and fair equivalent for any demand wbicli the said complainant could or might have against this de- fendant in respect to the several matters therein and in the said bill also mentioned. Wherefore this defendant pleads the said release in bar of the said <3omplainant's bill, and prays judgment, &c., (con- •clude as in general formula). 2«5 story's Eq. PI. 797. If the consideration is impeached by the bill, the plea must be assisted by averments, and also by an answer covering the .^rounds on -which the consideration is impeached. Mitf. PI. 261-3 ; Story's Jlq. Pi. 797. PLEA. 299' Another Form of Plea of Release. (Commence as in general formula, p. 274, then proceed :) that before the said complainant's bill was filed, that is to say, on the day of the said complainant, by a certain writing under his hand and seal, in consideration of $ by him the said defendant then and there paid "^ to the said complainant, released and forever quitted claim this defendant from the several matters and things in the said complainant's bill mentioned and com- plained of, and from all demands and suits whatso- ever which the said complainant then had, or might thereafter have, in respect of the several dealings and transactions, matters and things in the said bill mentioned, or any of them, therefore this defendant pleads the said release in bar to the said complain- ant's said bill, and prays the judgment of this court whether he ought to be compelled to make any farther answer to the said bill ; and this defendant not waiving his said plea but insisting thereon, for answer and in support of his said plea he denies that the said release was unduly obtained by this defendant from the said complainant, as in the said bill is suggested,, or that the complainant was igno- rant of the nature and effect of such release, or that the consideration paid by this defendant as afore- said was at all inadequate to the just claims and demands of the said complainant against this de- fendant, in respect of the several dealings and trans- ^ See note to preceding form. 300 DEFENCE TO SUITS IN EQUITY. actions in the said bill mentioned. Wherefore, &c., (conclude as in general formula.) PRACTICAL NOTE. If fraud, surprise, imposition, inadequacy of consideration or any other objection to the release be charged in a bill seeking to set it aside, the plea, as it is called, must deny those charges by aver- ments and must also specifically negative them by an answer. Beames on Pleas 226. In such case the following form is sug- gested as a proper conclusion of the plea: "Therefore this defend- ant pleads the said release in bar to so much of the said plaintiff's bill as is hereinbefore particularly mentioned, and humbly prays the judgment of this honorable court, whether he ought to be compelled to make any farther answer to so much of the said bill as is before pleaded unto; and this defendant not waiving the said plea, but insisting thereon for answer to the residue of the said bill, and in support of his said plea saith, he denies that the said release was unduly obtained by this defendant from the said plain- tiff, or that the said plaintiff was ignorant of the nature and effect of such release, or that the consideration paid by this defendant to induce the said plaintiff to ezecute the same was at all inadequate to the just claims and demands of the said plaintiff against this defendant in respect of the several dealings and transactions in the said bill mentioned, or any of them, and this defendant denies, &c. PLEA OF EELEASB SUPPORTED BY AN ANSWER. It is now firmly established that the plea itself, as well as the answer, must contain averments negativing the facts and cir- cumstances set up in the bill in avoidance of the bar or defence. Otherwise the plea will not amount to a complete defence to the bill, since the denial of these facts and circumstances is in truth the only point in controversy. Story's Eq. PL 680, 796: Mitf. Eq. PL 239-244, and note (g), 298, 299; Sartt vs. Corning, 3 Paige 566; Bayley vs. Adams, 6 Ves. 586, 2 Dan. Oh. Pr. (old) 112-128; Foley vs. Hill, 8 M. & 0. 475, 480, 481, 2 Ves. & Beam. 364, 6 Mad. 64, 2 Sim. & Stu. 279, Story's Eq. PL 671, note. In order to justify an answer in support of the plea, there must be some specific facts charged in the bill to which such an answer is a proper response. When the bill charges no specific fact incon- sistent with the plea, negativing and avoiding as it were that plea by anticipation, but only alleges generally that the defendant holds papers and writings, by which the truth of the matters charged, or some of them, would appear (which matters if true would not affect the validity of the plea, but leaves it in its full force), it is not PLEA. 301 necessary nor proper to put in an answer in support of the plea. •Story's Eq. PI. 681. But where the bill even in general terms -charges that the defendant has in his custody or power divers .books, papers and writings, by which if produced the truth of the several matters aforesaid, or some of them, would appear, there can- not be pleaded a plea to the discovery without an answer in sup- port of it negativing the existence of such books, papers and writings. See Story's Eq. PI. 681a, and cases cited. Whether Release after filing of the Bill can be pleaded. In section 176, it was stated that as to such matters as arise after the filing of the bill, when they operate a full discharge from the claim of the plaintiff, they may be pleaded. Dan. Oh. Pr. (Perk.) 60. In Turner <& ah. vs. Rohinson (& als., 1 S. & S. 3, Vice-Ohan- cellor Sir John Leaoh held, that "as any matter which arises be- tween the declaration and plea may be pleaded at law, so matters which arise between the bill and plea may be pleaded in equity." See Tarleton vs. Sornby, 1 Y. & 0. 101 ; Earl of Leicester vs. Perry 1 Bro. 0. 0. 305 ; Dryden vs. Robinson, 2 S. & S. 529, referred to in n. 209, p. 263, ante. There is no conflict between Tamer vs. Rob- inson, 1 S. & S. 3, and Hayne vs. Sayne, 3 Chan. 19, 2 Swanst. 472, 474, cited by Lord Eedesdale, Mitf. PI. 82. In Sayne vs. Sayne, the defendant, without pleading it, relied on a release. The plaintiff wished to impeach the release. The plaintiff was directed to file a bill for the purpose, the release not being in issue. The case does not decide that the defence could not be presented by a plea: and the subsequent cases of Turner vs. Robinson, 1 S. & S., and others cited above, seem to sustain the position that it could be so presented. Lord Eedesdale lays it down, however, that a cross bill will be necessary; Mitf. PI. 82, but bases his opinion on Sayne vs. Sayne, cited above. Form of Plea of Award. (Commence as in general formula, page 274, then proceed:) that disputes having arisen between the said complainant and this defendant concerning (here state subject of dispute), for the settling of all such disputes the said complainant and this defend- ant agreed to submit the same to the final judgment award and arbitration of A. R., and the said A. R. having taken upon himself the burden of said 302 DEFENCE TO SUITS IN EQUITY. award, after having at large heard, read and duly- weighed and considered all and singular the allega- tions, proofs and evidences brought before him did on the day of make his final award in writing under his hand and seal of and concern- ing the matters of dispute aforesaid, and did thereby award and find (here state substance of award) as by the said award reference being thereto had will more fully appear; and this defendant avers that the matters complained of in said complainant's bill were embraced in said aAvard, and that the said award hath hitherto remained and still is unim- peached and in full force and efffect : and this defend- ant avers that he hath paid in full to the said complainant the sum of money awarded him by said award, and that the said award was made and said payment was made previously to the said com- plainant's bill being filed in this honorable court. Wherefore, &c., (conclude as in general formula.) PRACTICAL NOTES. An award may be pleaded to a bill to set aside the award and open the account, to the discovery as well as relief. - Mitf. PI. 260. But if fraud or partiality be charged against the arbitrators, those charges must not only be denied by way of averment in the plea, but the plea must be supported by an answer, showing the arbitra- tors to have been incorrupt and impartial ; and any other matter stated in the bill as a ground for impeaching the award must be denied in the same manner. Mitf. PI. 261. Although an award, duly made, will be a good plea in bar to a bill for the matters concluded by it,'" a covenant or agreement to refer disputes to arbitration, as it cannot be made the subject of a bill for specific performance (^Price vs. Williams, cited 6 Ves. 818), so neither can it be pleaded in bar to a bill brought in consequence 2«'See 2 Rob. Pr. (old) 194; iSmiJA, &c. vs. Smith, . Pollock vs. Olassell, 2 Grat. 439 ; to prove that a note was signed as principal and not as agent, Early vs. Wilkenson, <6c., 9 Grat. 68 ; to establish that a. cellar was rented with a certain tenement, parol proof was adtnitted to show that a tenement rented by M. from S. was the same that was rented by him from P. and that the cellar was indispensable to M..for the business in which he was engaged, Crawford vs. Morris, 5 Grat. 90; to prove that the clerk of the drawee of a bill was authorized to refuse acceptance, Steinhack vs. B'k of Virginia, 11 Grat. 260; to prove the contents of a book (the after evidence showing good reason why the book could not itself be produced), Pidgeon vs. Williams's adm'ors, 21 Grat. 251 ; to show that a covenant was executed prior to its date, Jas. R. & K. Go. vs. Adams, 17 Grat. 427; to prove the intention of the parties to a lease there being in it a latent ambiguity, Mid. Coal M. Co. vs. Finney & als., 18 Grat. 304; to prove for whom the labor mentioned in a note was performed, Richmond, F. & P. R. R. Co. vs. Snead & Smith, 19 Grat. 354; to explain a paper of doubtful meaning. Walker vs. Christian,. 21 Grat. 291 ; to prove that in a contract for the sale of land it was designed to be in gross, Caldwell vs. Craig, 21 Grat. 132; to prove the true understand- ing of parties in a bond " to be paid in the currency used in the common business of the country at the date of the maturity," Colbreath vs. Va. Por- celain & E. Co., 22 Grat. 697 ; to prove that the bond executed July 18, 1863, was a Confederate contract, Sexton vs Wendell's adm'r, 23 Grat. 534 ;• to prove that a deputy sheriff aided his principal in defending a suit against EVIDENCE. 433 400. There has been some difficulty where parol evidence has been offered as a defence against a bill praying speciiic performance but the evidence has been received in many cases. It is admitted on the the latter, Orawford & ah. ve. Txirh, 24 Grat. 176 ; to prove the consideration of a bonJ for payment " in funds current in the State of Virginia, being money borrowed," and the character of the contract, Wrightman vs. Bowyer & ah.. 24 Grat. 433 ; to prove the subject of a previous suit, Kelly vs. £'d Pub. Works, 25 Grat. 755 ; to prove that the forfeiture of an insurance policy ■was v/aived, McLean vs. Piedmont & A. L. Ins. Co., 29 Grat. 361 ; to prove- the consideration of a deed, Summers vs. Dame & ah., 31 Grat. 791 ; to show that pa.yments on bonds payable "in current money of Virginia" were not to be in Confederate money, Stearns vs. Mason, 24 Grat. 484 ; in relation to the person or object and subject referred to in a bequest, Boy's ex'ors vs. Bowzie & ah., 25 Grat. 599; to prove, in ejectment, that the calls for ooursa and distance in a deed are mistaken and do not designate the true boundary of the land intended to be conveyed, Elliott vs. Horton, 28 Grat. 766 ; to prove that the obligee in a bond perfect on its face had notice that it was de- livered to him. on condition that other persons were to sign it in order to make it effectual as to those who did sign it it, Nash vs. Fugaie & als., 32 Grat. 595 ; to prove that a check was not given in payment of a debt due by the drawer to the party in whose favour it was drawn, Terry vs. Bagsdale, 33 Grat. 342. See McMahon vs. Spangler, 4 Ean. 51 . In Viesinia State Courts, Inadmissible. — But parol evidence was not admitted in the following cases; Not admitted to explain an ambiguity, an " &c ," in a deed, Oatewoodva. Burrus, 3 Call. 194; not admitted to prove the contents of a permit not proved to have been lost, Dawson vs. Graves, 4 Call. 127 ; not admitted, in ejectment, to prove that .a patent was irregularly obtained, Wetherinton vs. McDonald, 1 H. & M. 396 ; not admitted, in slan- der, to prove what plaintiff swore to in another suit, without producing a copy of the record of that trial, to show that the testimony given by the plaintiff was material to the matter in question, Kirtley vs. Dock, 3 H. & M. 388 ; not admitted to prove declarations of a testator to explain a bequest,. Fuller's ew'or vs. Puller, 3 Hand. 83 ; not admitted of receipts taken, unless'- it is fhown that the receipts were lost or out of the power of the plaintiff^ Hamlin vs. Atkinson, 6 Rand. 574, [the witness in Hamlin vs. Atkinson did not speak positively and with certainty as to the dates and amounts of the payments made, and Mr. Robinson thinks this was the ground of the deci- sion. See his comments on this case in 1 Rob. Pr. (old) 305, 306; see also Oivens vs. Mann, &c., 6 Munf. 191 ; not admitted to prove that a decree of a court was entered without any order of the court by agreement of the counsel of the parties, Benson's adm'or vs Stephenson, 7 Leigh 107; not ad- 55 434 SUITS IN EQUITY. principle that equity is not bound to interpose by specifically performing the contract, and therefore though the subject and import of the written con- mitted to prove the usage for the off-goiog tenant to have the way-going crop, the written lease being for a fixed and definite period, Harris vs. Carson, 7 Leigh 632 ; not admitted to prove agreement made at the time of executing a deed, Siter & als. vs. McOlanahan & als., 2 Grat. 280 ; not admitted to prove, in an action for a devastavit by creditor against executor and sureties, that the legatee paid was not the legatee of the testator but of a person of whom the testator was executor, and had sufiicient assets to pay the legacy but had not done it ; the fact of the legacy and that the executor's testator was the executor shouW be proved by the will and the record of his qualification; parol evidence was inadmissible for that purpose. Millers vs. Catlett, 10 Grat. 477 ; not admitted to prove an agreement for an unequal division of land by two purchasers purchasing jointly and giving bond for purchase money, Jarrett'vs. Johnson, 11 Grat. 327 ; not admitted to incorporate into a written contract an incident occurring contemporaneously therewith and inconsistent with its terms, Towner vs. I/itcas's ex or, 13 Grat. 705 ; not admitted in behalf of a surety to prove obligee's promise that he should not be required to pay any part of the bond, Towner ve. Lucas's ex' or, 13 Grat. 705; not admitted to prove that a scroll at the foot of a writing was intended as a seal, Olegg ys. Lemessuner, 15 Grat. 108 ; not admitted to prove that a deed was ■only in part execution of a contract of sale and that the remainder. of the property was to be conveyed at another day, Broughton vs. Coffer, 18 Grat. 184 ; not admitted to prove an agreement varying the liability of an endorser, Woodward & als. vs. Foster, 18 Grat. 200 ; not admitted to show the opinion of the testatrix in order to show that she acted under a mistake, the Court being of opinion that to revoke a will the mistake must appear on its face, Skipwith vs. Cabell, 19 Grat. 758 ; not admitted to prove that bonds for purchase money, to secure which a deed of trust was given, were not to be paid according to the terms of the bonds and the deed of trust, but were to be paid only out of the profits of the property purchased, Sangston & als. vs. Gordon, &c., 22 Grat. 75 ; not admitted to prove that the maker of a note made it as agent of the Confederate Government, Buchman vs. lAghtner's ex'ors, 24 Grat. 19 ; not admitted to prove that a bond, perfect on its face, was delivered to the obligee as an escrow to be valid on another person's executing it, Miller vs. Fletcher & als., 27 Grat. 403 [the case of Miller vs. Fletcher differs from Nash vs. Fugate, 32 Grat. 595,* in this, that in the * In Nash vs. Fugate & als., 24 Grat. 202, the case went up to the Court of Appeals without proof that the obligee had notice of the condition that the bond should not be delivered until executed by other persons ; in Nash vs. Fugate & als., 32 Grat. 595, that proof was supplied, and discharged ithe sureties. EVIDENCE. 435 tract are clear, so that there is no necessity to resort to other evidence for its construction, yet if the de- fendant can, independently of the writing, show any <3ircumstances of fraud, mistake or surprise, making latter case the sureties signed and delivered the bond to the principal obligor on condition that he should obtain additional sureties to execute it be- fore he delivered it to the obligee, and the obligor delivered the bond to the obligee without such additional sureties. The Court held, in that case, that the bond, though apparently perfect and complete, might be avoided by parol proof that the obligee, at the time he received it from the principal obligor, had notice that other persons were to sign it in order to make the instrument effectual as to those who did sign it] ; not admitted to prove, in defence to a note given for a certain lease and furniture, where the contract of lease gave the lesBOr until the end of the lease to make certain repairs, that the repairs were to be made in time for the approaching epring season, Calhoun, &c. vs. Wilson, 27 Grat. 639 ; not admitted to sustain resulting trusts, Borst vs. Nalle -& als., 28 Grat. 423 ; not admitted to show that one making an application for an insurance, who had signed it, never read his application, So. Mut. Ins. Co. vs. Yates, 28 Grat. 585 ; not admitted to prove that a, bill of exchange was received in full payment of a debt and that the drawer was not liable on it, and that without this agreetnent the bill would not have been drawn, Martin''s ex'ix vs. Lewis's ex'or, 30 Grat. 672. Ik the United States Couets. Parol evidence has been admitted to prove a trust in Texas, the Statute of Frauds in Texas not em- bracing trusts of real estate, Osterman vs. Baldwin, 6 Wal. 116 ; to ex- plain a letter of credit. Bell vs. Bruen, 1 How. 169 ; to apply » written instrument to its subject, Noonan vs. Lee, 2 Bl. 499, and to apply a con- tract in writing to its proper subject matter, Bradley vs. Wash., Alex. & ■Georgetown 8. P. Co., 13 Pet. 89; to rebut or explain an equitable interest Senkle-va. Warner, 17 How. 353; to explain the description in a sheriff's deed, Atkinson vs. Cummins, 9 How. 479 ; to show that a contract was a substitute for a former one. The Farmers B'k of Va. vs. Graves, 12 How. 57; to explain when the terms of an instrument are technical or equivocal, Sal- mon Falls Man. Co. vs. Ooddard, 14 How. 446 ; to prove that defendant acknowledged indebtedness on notes, McNiel vs. Solbrook, 12 Pet. 84; to explain a loan by a bank being a part of the res gestae, Banh vs. Kennedy, 17 Wal. 19; to explain the object of papers introduced collaterally in atrial, Ibid, 17 Wal. 19; to show the understanding respecting a letter of credit, Douglass vs. Reynolds, 7 Pet. 113 ; to show the notoriety and names of places, Meredith vs. Pickett, 9 Wheat. 573 ; to show the terms of a contract in reference to Confederate notes. The Conf. note case, 19 Wal 548 ; to show the happening of a, contingency under a contract, £a;-?-eda & als. vs. Silsbee & als., 21 How. 146 436 SUITS IN EQUITY. it inequitable to decree a specific performance, a court of equity, having satisfactory information upon tha subject, will not interpose. Sir Thomas Plumer, V. Ch. in Clowes vs. Higginson, 1 V. & B. 526 ; Carr, J. IVO ; to show that the drawing of a check was an official act of the cashier of a bank, Merch. B'k of Alex. vs. B''k of Columbia, 5 Wh. 326 ; to identify the ob- jects called for in a grant, BlakeVB. Doherty, 5 Wheat 359; to prove consent to the substitution of a new obligor in a bond, Bpedke vs. U. States, 9 Or. 28 ; to show what was litigated in a former suit. Miles vs. Caldwell, 2 Wal. 35 ; to show the circumstances under which an endorsment was made. Bey & ale. vs. Simpson, 22 How. 341 ; to show an agreement as to the place when pay- ment was to be demanded, Brent's ex'or vs. B'k of the Metropolis, 1 Pet. 89; to show that a new contract had been made, Emerson vs. Slater, 22 How. 29 ; to prove payment, though written evidence of a payment exists, Keene vs Meade, 3 Pet. 1 ; to prove ownership of goods mentioned in a bill of par- cels, Harris vs. Johnston, 3 Cr. 311 ; to prove the existence of a deed of gift, to show the nature of the possession which accompanied the deed. Spiers vs. Willison, 4 Cr. 398 ; to prove proceedings before magistrate in case of insol- vent debtors. Turner vs. Fendall, 1 Cr. 116; to explain a note payable to A. B. "cashier," Baldwin vs. B'h Newbury, 1 Wal. 234 ; to prove that it was a custom or usage of more than 20 years standing of all the banks in the Dis- trict of Colmbia to demand payment and give notice to endorsers of nego- tiable paper on the fourth day of grace, Bennie vs. B'lc Columbia, 9 Wheat 581 ; to prove the time of delivery of deed, Mayburry vs. Brien, 15 Pet. 21 ; to show military occupation of land, Morrow vs. Whitney, 5 Otto 551; to show the purpose of a trust the deed being made to the grantee as " trustee" without saying for what or for whom, Bailroad Compauy vs. Durant, 5 Otto 576 ; on parol collateral contract, Phillips vs. Preston, 5 How. 278 ; to ex- plain that a note drawing interest at " one m. per centum" meant one mill per centum, U. S. vs. Hardyman, 13 Pit. 176 ; to carry out the intention of parties to a contract, Bradley vs. Wash., Alex. & Georgetown 8. P. Co., 13 Pet. 89 ; to prove representations referred to in a policy of insurance, though property had passed into other hands, Clark vs. Man. Ins. Co., 8 How. 235; to show how an application for an insurance was made out, Insurance Co. vs. Wilkerson, 13 Wal. 222 ; to prove the answer made by applicant for the in- surance was not the answer as written by the agent of the compauy in the application. Insurance Co. vs. Mahone, 21 Wal. 152 ; to explain answers in an application for insurance, New J. M. lAfe Ins. Co. vs. Baker, 4 Otto 610, affirming 13 Wal. 222, and 21 Wal. 152 ; to show that a contract was made by one'as an agent, Ford vs. Williams, 21 How. 287; to prove the validity of the acts of an agent to bind the principal, Mec. B'k Alex. vs. B'k Columbia, 5 Wheat 326 ; to prove the usage of heads of departmemta in allowing pay EVIDENCE. 437 in McMahon vs. Spangler, 4 Rand. 54 ; Gillespie, &c. vs. Moon, 2 John. Ch. Rep. 585, and Keisselbrack vs. Livingston, 4 John. Ch. Rep. 144. In these two last cases the admissibility of parol evidence to show a for extra services, U. 8. vs. Fillebrown, 7 Pet. 28 ; to aid the de- scription in a deed, Deny vs. Oray, 10 Wal. 263; to explain a latent ambiguity in a contract, Bradley vs. Wash'n, Alex. & Oeorgetown Steam Packet Co., 13 Pet. 89 ; Boardman vs. The Lessees of Bead <6 Ford, 6 Pet. 328 ; to explain a bill of lading in so far as it was a receipt. The Lady Franklin, 8 Wal. 325 ; to show that a bill of sale was a mortgage, Morgan's •assignee vs. Shinn, 15 Wal. 105 ; to prove that an absolute deed was a mort- gage, Morris vs. Nixon's ex'or, 1 How. 118, Russell vs. Southard, 12 How. 139, Babcoch vs. Wyman, 19 How. 289 ; lo prove the existence of a priva- teer's commission. The Estrella, 4 Wheat 298 ; to prove that a bond which on its face purported to have been delivered absolutely had been delivered in violation of the condition upon which it had been signed by some of the parties. Pawling & als. vs. V. S., 4 Gran. 219 [but the case of Pawling & als. vs. f7. S., 4 Cran. 219, is understood to be overruled by Dair vs. U. S., 16 Wal. 1. See also Nash vs. Fugate, 24 Grat. 202, Nash vs. Fugate, 32 Grat. 595, and Miller vs. Fletcher & als., 27 Grat. 403] ; to show that the names of jiersons appearing as payees on a bill of exchange were not payees in fact, Pease vs. Dwight, 6 How. 190 ; to prove the usage of trade, though origina- ting in a law or edict, lAvingston vs. Md. Ins. Co., 7 Or. 506 ; to prove foreign laws respecting trade not proved to have been in writing as public edicts, lb., 6 Or. 274 ; to rebut other parol evidence in a question of boundaries, Atkin- son's lessee vs. Cummins, 9 How. 479 ; to prove the acts of the Board of Com- missioners of the Navy Hospital Fund, they not being required by act of 'Congress to record their proceedings, U. 8. vs. Fillebrown, 7 Pet. 28 ; to prove aliunde the fund that certain debts must be paid from to render the guarantor in a written promise of indemnity liable, Mauran vs. Bullus, 16 Pet. 528. In Ukiied States Coubts, Isadmissible. Parol evidence was not admitted, in the absence of fraud, accident or mistake, to vary the terms of a written contract, in equity, in Forsyth vs. Kimball, 1 Otto 291 ; ought not to be admitted when bearing on written papers, without the production of the papers to ascertain to the Court whether it trenches on the rule against varying by testimony, Phil. & Wash'n Bail- road Co. vs. Slimpson, 14 Pet. 448 ; to vary the terms of a, bond so as to -treat him who appears therein to be the principal debtor as a surety, Sprigg vs. B'k Mt. Pleasant, 14 Pet. 201; to vary the terms of a bill of exchange. Brown vs. Wiley & als., 20 How. 442 ; to explain a letter which is plain, Partridge vs. The Ins. Co., 15 Wal. 573 ; to explain a bill of lading so far as it is a bill of lading, and not a receipt, The Lady Franklin, 8 Wal. 325 ; to 438 SUITS IN EQUITY. mistake in a writing, and the jurisdiction of equity to relieve against such mistake, are very fully ex- amined. prove that a conveyance should operate as an exchange of lands in Ohio,. Clarh vs. Oraham, 6 Wheat 577 ; to enlarge or change the legal estate of the grantee against the plain words of the instrument, Lessee of Smith <6 aU. vs. McCann, 24 How. 398 ; to take a case out of the statute of limitations in Louisiana, Adgetr vs. Alston, 15 Wal. 555 ; to show the intention of testator in Louisiana, Mackie & als. vs. Story, 3 Otto 589 ; nor to show that he in- tended in a devise to his " children " to exclude his daughters, Weatherhead^i lessee vs. Basherville, 11 How. 329 ; to show that an agent disclosed his prin- cipal, the agent having entered into a written contract in which he appears as principal, Nash vs. Towne, 5 Wal. 689 ; (in an action of covenant of seizure) to prove prior claims on land, Pollard, &c. vs. Swight, i Or. 421 ; to change the terms of a contract, Shanhland vs. Corp. of Washington, 5 Pet. 390 ; to show the understanding in issuing preferred stock, Bailey vs. The Itailroad Co., 17 Wal. 96 ; as to the place of stowage under a bill of lading, the bill of lading being a " clean '' bill of lading, i. «., silent as to place of stowage, The Delaware, 14 Wal. 579; as to scope of a patent on application for a re-issue, Seymour vs. Osborne, 11 Wal. 516 ; as to place of payment of a note, Specht vs. Howard, 16 Wal. 564 ; to explain meaning of term " steam- boat debts" used in a contract, Moran vs. Prather, 23 Wal. 492; to prove that warrants were rejected by entry takers, Polk's lessee vs. Wendell & als., 5 Wheat 293 ; to show that letter of credit was intended for persons other than those addressed, Ghrant vs. Naylor, 4 Cranoh 224; to show that a con- tract of insurance was actually made before the loss occurred, though the policy of insurance was executed and delivered and paid for afterwards, Ins. Co. vs. Lyman, 15 Wal. 664 ; to contradict the value as stated in a valued policy, Mar. Ins. Co. of Alex' a vs., Hodgson, 6 Or. 206 ; to prove that one set of written instructions from Postmaster-General suspended another, Dunlop vs. Munroe, 7 Oranch 242 ; to prove that a clause in a written contract pro- viding for the forfeiture of a fixed sum if the work should not be completed by a certain day was intended to liquidate the damages for such failure. Van Buren vs. Diggis, 11 How. 461 ; while it is true that in some classes of cases a contract between persons not parties to the suit may, when introduced, be conttradicted or varied by parol testimony, the principle has no application in a contract concerning real estate which the statute requires to be in writing to make it valid, Still vs. Huidekopers, 17 Wal. 384 ; not admissible to vary or contradict a written contract made, at the time of making and endorsing a promissory note, in relation thereto, Brovm vs. ^afford, 5 Otto 474. EVIDENCE. 439 401. Hearsay evidence is generally inadmissible. Hearsay evidence is generally inadmissible. The ground for the rejection of hearsay evidence lies in the fundamental principle that evidence has no claim to credibility unless it is given on oath, and unless the party to be aflfected by it has an opportunity of cross-examining the witness. Pow. Evi. 70. See Mima Queen vs. Hej^lurn, 7 Cranch 296. A witness is always stopped when lie is about to state something which he knows not from the personal cognizance of his own senses, but merely from the accounts of another person. Pow. Evi. 70. Penner vs. Cooper, 2 Wash. 461. Mere declarations not upon oath are not evidence. Littledale, J. in Spargo vs. Brown, 9 B. & C. 935. Among the rules of evidence, " none is more firmly fixed or rests on a more solid foundation than this, that hearsay evidence is in its very nature inadmissible." Oarr, J. in Gregory vs. Baugh, 4 Eand. 615. 402. Uxceptions to rule as to hearsay evidence. Sometimes hearsay evidence is admitted to show that a witness's testimony is confirmed by what he stated on a former occasion, Holliday vs. Sweeting, BuUer's K. P. 294 ; see 2 Wash. Rep. 148. Some- times, it is admitted as to what a witness since de- ceased testified to on a former trial of the cause be- tween the same parties. Caton, &c. vs. Lenox, 5 Rand. 31" When a will is disputed on ground of fraud the declarations of the testator are admissible. Doe d. Mlis vs. Hardy, 1 M. & Rob. 825. And hear- say evidence is admissible when essentially connected with the res gestae, Norwich Trans. Co. vs. Flint, 13 Wal. 3 ; and a declaration made even at a month's ** The substance of his testimony may be proved on the second trial, it is not necessary to repeat his very words, Oaton, &c. vs. Lenox, 5 Rand. 31. 440 SUITS IN EQUITY. interval, if there be connecting circumstances, may- form part of the res gestae. Rouch vs. Great Western Hailway, 1 Q. B. 57. A witneBS was allowed to state the declaration and conduct of a deceased mother when questioned about her child's parentage, Sargrave vs. Hargrave, 2 0. & K. 701 ; see Gaines vs. Holfe, 13 How. 472, and Jewell's lessee vs. Jewell, 1 How. 219; but the un- sworn declarations of a mother that her son was illegitimate were rejected in 8tegaU d als. vs. Stegall's adm'or <& ah., 2 Brock 256. In 6 East 188, Avison vs. Lord Kinnaird, a wife, on whose life an insurance had been effected on her representing herself in ;^'ood health, afterwards made declarations totally different in regard to the state of her health. These declarations were admitted in evi- dence. 403. other exceptions to rule as to hearsay evidence. Hearsay evidence is admissible on matters of public and general interest, in proof of ancient possession and on questions of pedigree. See 1 Rob. Pr. (old) 33 i. Popular reputation or opinion, or the declarations of deceased witnesses if made ante litem Tnotam, and without reasonable sus- picion of undue partiality or collusion, are received as competent evidence in matters of public or general interest, Pow. Evi. 78, Hex vs. Hardwiehe, 11 East. 578 ; but the declarations must be ante litem motam, Bassett vs. Richards, 10 B. & 0., 657, and L'd Mansfield said, in 4 Oamp. 417, that the " lis mota dated not from the commencement of the suit but from the time the question began to attract attention as a controversy." As evidence of ancient possession, what is in fact hearsay test- mony is admitted. Thus, ancient documents purporting to be a part of the transactions to which they relate, and not a mere narra- tive of them, are receivable in evidence that these transactions actually occurred, provided they be produced from the proper custody. Pow. Ev. 89, Hoe d. Brwne vs. JRawlings, 7 East. 279 ; it is sufficient if the custody, though not strictly proper, be one which may be reasonably and naturally explained. Doe d. Neale vs. Sampler, 8 Ad. & E. 154. In questions of pedigree the statements of a deceased person ■who was connected by a blood marriage are admissible. Pow. Ev. 95. See Claiborne vs. Parish, 2 Wash. 146. Old family docu- EVIDENCE. 441 ments, genealogies, inscriptions on tombstones are received. Davies vs. Lowndes, 6 M. & G. 47, Gres. Eq. Evi. 319. The court considered, in Gregory vs. Baugh, 4 Kan. 611, the cases in which and the principles upon which hearsay evidence, as to pedigree, was admitted. See Claiborne vs. Parish, 2 Wash. 146. See Stegall d ah. vs. Stegall's adm'or <£ als., 2 Brock 256 ; Oaines vs. Eolfe, 13 How. 472 ; Ohirae vs. Heineeker, 2 Pet. 613. If hearsay evidence be admitted and excepted to such a case should be stated on the record as to show that it comes within some of the exceptions to the rule; otherwise the general rule will be against the admission. Claiborne vs. Parish, 2 Wash. 146. 404. Other exceptions to rule as to hearsay evidence. Hearsay evidence was admitted on a question of boundaries in Harriman vs. Brown, 8 Leigh 697 ; and as to a survey in Overton vs. Bavisson, 1 G-rat. 211. And in Smith vs. Chapman, 10 Grat. 445, the declarations of chainmen were admitted. Other cases will be found in tJie subjoined note.*° *^The following are ViKGHNiA. Cases on Heabsat Evidence : Jenkins vs. Tom, 1 Wash. 123 ; hearsay evidence admitted to prove pedi- gree. Oharlton vs. Unis, 4 Grat. 58 ; not admitted to prove freedom. Taliaferro vs. Pryor, 12 Grat. 277 ; not admitted to prove that the occu- pier of the land was the owner. Unis va. Charlton, 12 Grat. 484 ; not admitted to prove the character of a master. James B. & K. Go. vs. lAttlejohn, 18 Grat. 53 ; written opinion of attorney not admitted. Davis & als. vs. Franhe, 33 Grat. 414 ; a witness who had testified to the good character of a person was asked, on cross-examination, if " he had not heard a number of that person's neighbors testify, in two suits against him, that they were acquainted with his character for truth and veracity, that it was bad, and they would not believe him on oath." This question was properly excluded. The following are United States Coum Cases on Heaesat Evidence : Venable vs. B'k United States, 2 Pet. 107 ; declarations of grantor after his 66 442 SUITS IN EQUITY. 40e5. Handwriting. In some cases proof of hand- writing is dispensed with. See section 235a, p. 273 ante. Handwriting is proved usually by a witness who has seen the person write or who has had cor- respondence with him ; even seeing him write onc& is enough. Green. Ev. § 577 ; 2 Esp. N. P. 500. Sogers vs. Bitter, 12 Wal. 322 ; Bedford's adni'or vs. Peggi/, 6 Rand. 316, 327. In Pepper vs. Harnett, 22 Grat. 405, the witness stated that he had never seen Mrs. B. vyrite but once, and then only to make her conveyance, though not admissible to defeat the title of the grantee, were ad- mitted to control the effect of the grantor's answer. Jewell's lessee vs. Jewell, 1 How. 219; admitted to prove non-marriage. Amer. Fire Co. vs. United States, 2 Pet. 358 ; agent's declarations admitted. Barclay vs. Sewitt's lessee, 6 Pet. 498 ; agent's declarations, employed to lay out a town, admitted. Phil. & Trenton R. B. Co. vs. Simpson, 14 Pet. 448 ; hearsay evidence ad- mitted in a patent case. Fhil, Wil.& Bait. B. B. Co. vs. Howard, 13 How. 307; act of counsel treating paper as a deed of a corporation admitted to prove that the seal affixed to the deed was the seal of the corporation. Oaines vs. Relf, 12 How. 472 ; letter from husband to wife admitted in a controversy inter alios. Biggs vs. Lindsay, 7 Cran. 500 ; letter discredited by hearsay evidence of conversations of the letter-writer. Turner vs. Yates, 16 How. 14; commercial correspondence, though be- tween third persons, admitted as evidence of the nature of their transactions and the relations they sustained to each other. Conn. Mut. Life Ins. Co. vs. Schwenk, 4 Otto 598 ; entry of age in Odd- Fellows' book, not proved to have been made on the representation of the party himself, was not admitted to show the age of the person. ScoiVs lessee vs. Batliffe, 5 Pet. 81 ; admitted to prove death. Boardman vs. Lessee of Seed & Ford, 6 Pet. 328 ; admitted as to declara- tions of a deceased witness as to boundaries. Mlicotl vs. Pearl, 10 Pet. 412 ; hearsay evidence not admitted as to facts in a survey. U. S. vs. Wiggins, 14 Pet. 334 ; hearsay evidence not admitted to prove the forging of similar papers. Carver vs. Jackson, 4 Pet. 1 ; the acts of parent, a life tenant, not ad- mitted against remaindermen. EVIDENCE. 44S signature, that he would not be able from his knowledge of her handwriting to distinguish it from that of others ; but that he was of opinion from having compared the present signature with the one he had seen her make, and from other circumstances not dis- closed by the witness, he was of opinion it was in her handwriting. This evidence was held admissible. In Cody vs. Conly- dak., 27 Grat. 313, a witness stated that some thirteen years before 0. dug a well for witness, that he gave several orders on witness for money and from witness's recollection of his handwriting, he thought the paper shown was his, that witness never saw C. write, but witness paid the orders and they were recognized by 0. in the settlement. It was held, that this evidence was clearly admissible. 406. Proving handwriting by a comparison of hands. It is not allowable, so say the authorities, to prove handwriting by a comparison of hands. The rule was laid down by the United States Supreme Court in Strother vs. Lucas, 6 Pet. 763, that evidence by com- parison of hands is not admissible when the witness has had no previous knowledge, but is called upon to testify merely from a comparison of hands. The court did not deem that it was departing from this rule when in Rogers vs. Bitter, 12 Wal. 320, it per- mitted witnesses to testify to the genuineness of a controverted signature when they had acquired a knowledge of the handwriting not by seeing the party write nor by correspondence with him but by one of the "many methods in which one person can become acquainted with the handwriting of another besides^ having seen him write or corresponded with him."** *• The witnesses in Rogers vs. Hitter, 12 Wal. 317, became acquainted with the handwriting in this way : One of them had been for eight years clerk in the recorder's office of San Francisco ; another had resided in California for 14 years, had had charge of the Spanish archives in the office of the Surveyor General, and the third had been secretary, interpreter and custodian for over four years of the land commission of the United States^ which sat in Cali- fornia. They all stated that they were familiar with the handwriting of 444 SUITS IN EQUITY. See Sharp vs. Sharp & als., 2 Leigli 249 ; Bedford's adm'or vs. Peggy, 6 Rand. 316 ; Eoufs adrrCor vs. Kyle's adm'or, 1 Leigh 216. In Nuckols adm'or vs. Jones, 8 G-rat 267, the court disapprove of an attempt to circumvent and entrap a witness by exhibiting to her a forged paper — a fact, says the court, of itself justifying the rejection of the evidence — and in that case the court held that while a witness called to prove the handwriting of a paper offered for probat may be impeached by proof of what she has said about that paper at another time, yet neither her capacity to judge of the handwriting or her credit was to be impeached by what she may have said about some other paper. In Sharp vs. Sharp <£ ais., 2 Leigh 249 the witness had never seen the decedent S. write, but having qualfied as his administra- tor (supposing that S. died without a will) he acquired a knowl- -edge of S.'s handwriting from examination of his papers after his death and testified from his knowledge of the handwriting thus acquired that the will of S. found after witness's qualification as administrator was written wholly ia S.'s hand : this was held to be competent evidence of the handwriting in a court of Probate. In NucJcols vs. Jones, 8 Grat. 267, the deposition of a wit- ness unable to attend the court, who testified to the handwriting of a testamentary paper which had been before shown to him but which was not before him when he gave his deposition, was ad- mitted. Sancliez, one of them had frequently Been it in his office and had often made certified copies of papers to which his signature was attached ; another had examined the correspondence of Sanchez while justice of the peace with the governor and other papers to which his signature was attached and the third testified to his knowledge derived from seeing his signature to certain depo- sitions filed in his office. One of the witnesses testified, " I have seen so many instruments and papers passing through my hands that these signatures (naming them) are like household implements with us." On this testimony the U. S. Supreme Court permitted the witnesses to testify to the genuineness ■of the handwriting. EVIDENCE. 445 407. When testimony of witnesses must he taken. If the case of the party plaintiff is not established by facts of which the court takes judicial notice, nor by the admission of the opposite party, either by his pleadings or by positive agreement, nor by docu- mentary evidence, it will of course be necessary to take the testimony of witnesses ; and it is, therefore, proper to consider who are competent witnesses and the methods of taking their testimony. 408, What witnesses are incompetent. Persons de- ficient in understanding are incompetent witnesses. Pow. Ev. 17, 4 Min. Ins. 691, 692. The Virginia rule is, that no person is incompetent as a witness on account of his real or professed religious opinions. Perry's case, 3 Grrat. 632. The rule at common law was different. See 1 Green. Ev. §§ 368, 371. See the rule as laid down in Powell on Evidence, 22. Husband and wife are incompetent as witnesses for or against each other, during the coverture or after its termination. Code 1873, chap. 172, sec. 22. The 21st section of chap. 172, Code 1873, provides that no witness shall be incompetent to testify because of interest. But by the 22d section of the same statute it was provided that "where one of the original parties to the contract or other transaction which is the sub- ject of the investigation is dead, or insane, or incom- petent to testify by reason of infancy or other legal cause, the other party shall not be admitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, unless he shall be first called 446 SUITS IN EQUITY. to testify on behalf of such last-mentioned party ; and when one of the parties is an executor, adminis- trator, curator or committee, or other person repre- senting a dead person, an insane person, or a convict in the penitentiary, the other party shall not be per- mitted to testify in his own favor unless the contract or other transaction in issue or subject of investiga- tion was originally made or had with a person who is living and competent to testify, except as to such things as have been done since the powers of such fiduciary were assumed." This statute as amended in Sess. Acts 1876-7, ch. 266, will be found in a sub- sequent section. The statutes of Virginia ruling in the Virginia State courts, were in review before the Court of Appeals in Origsby d als. vs. Simp- son, assignee, do., 28 Grat. 348, in which the court held that in an action on a bond by the assignee of a deceased obligee the obligors were incompetent witnesses to testify in their own behalf under the statute, Code 1873, ch. 172, sec. 22. The court reaffirmed the doc- trines laid down in Mcbson <& als. vs. Wood, 27 Grat. 783, in which it was said : " The language of the statute seems to be explicit. Where one of the original parties to the contract * * * is dead, * * the other party shall not be admitted to testify in his own favour," •&C. The legislature may have intended to limit the incompetency to testify to transactions between the living and deceased party, or to the acts and declarations of the deceased party, and not to have otherwise restricted his general competency as declared by the 2l8t section; but if so intended it is not so expressed. By the terms and express letter of the law, parties in such cases are declared to be incompetent to testify in their favour. There is no limitation of incompetency as to the subject matter of the testi- mony. It is general and unrestricted. They are declared to he incompetent to testify in the cause in their own favor. It might have been reasonable in the legislature to have restricted the in- competency to such matters as the other party, if not incapacita- ted, might be qualified to speak to, as acts and declarations im- puted to him, or transactions in which he acted a part, and left untouched his incompetency as to other matters ; and such restric- EVIDENCE. 447 tion might comport with, the spirit of the act; but the legislature has not so said, and the court is not disposed to extend the opera- tion of the act beyond its terms and express provisions; and the incompetency of parties to testify in their own favor in such cases being declared by the act in express terms, they must be held incompetent to testify to any matter bearing upon the issues in the cause." 409. The provisions of the Virginia statute, Code 1873, chap. 172, sec. 21, 23 and 24, and of Sess. Acts 1876-7, chap. 256, p. 265, will rule in the courts of the United States held in Virginia save so far as modified by the statute, U. S.* Rev. Stat, sec. 858. By the United States Revised Statutes, sec. 858, p. 162, it is provided that, " In the courts of the United States, no witness shall be excluded in any action on account of color, or in any civil action because he is a party or interested in the issue tried : Provided, that in actions by or against executors, administrators or guar- dians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward, unless called to testify thereto by the opposite party or required to testify thereto by the court. In all other respects the laws of the State in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the U^nited States in trials at common law, and in equity and admi- ralty." 410. W7mt witnesses are competent. The recent statutes, Code 1873, ch. 172, sec. 21, 22, Sess. Acts 1876-7, ch. 256, U. S. Rev. Stat., sec. 858, p. 162, have not rendered incompetent any witnesses who were competent before their passage. On the con- trary these statutes have greatly enlarged the com- petency of witnesses. In sec. 409 the reader will find the United States 448 SUITS IN EQUITY. statute. The Virginia statute, Code 1873, chap. 172, sections 21, 23 and 24, is as follows : Sec. 21. No witness shall be incompetent to testify because of inte- rest ; and in all actions, suits or other proceedings of a civil nature, at law or in equity, before any court, or before a justice of "the peace^ conamissioner, or other person having authority by law, or by consent of parties to hear evidence, the parties thereto, and those on whose behalf such action, suit or proceeding is prosecuted or defended, shall, if otherwise competent to testify, and subject to the rules of evidence and of practice applicable to other witnesses, be com- petent to give evidence on their own behalf, and shall be com- petent and compellable to attend and give evidence on behalf of any other party to such action, suit or proceeding except as hereafter provided ; but in any case at law, the court may, for good cause shown, require any party to attend in person and testify ore tonus, or exclude his deposition upon his failure to attend. iiSlsc. 23. If any party required by another to testify on his behalf shall refuse to testify, it shall be lawful for the court, officer or person before whom the proceeding is pending, to dismiss the action, suit or other proceeding of the party so refusing, as to the whole or any part thereof, or to strike out and disregard the plea, answer or other defence of such party, or any part thereof, as jus- tice may require. Sec. 24. A party called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination. Sec. 22 of chap. 172, of the Virginia Statute as it is found in the Code of 1873, p. 1109, is printed in section 408 ante. The 22d section of the Virginia statute was amended in Session Acts 1876-7, chap. 256, pp. 265, 266, and now reads as follows : Sec. 22. Nothing in the preceding section shall be construed to alter the rules of law now in force, in respect to the competency of husband and wife as witnesses for or against each other during the coverture, or after its termination, nor in respect to attesting wit- nesses to wills, deeds, or other instruments ; and where one of the original parties to the contract, or other transaction, which is the sub- ject of the investigation, is dead, or insane, or incompetent to testify by reason of infamy or any other legal cause, the other party shall not be admitted to testify in his own favor, or in favor of any other EVIDENCE. 449 party having an interest adverse to that of the party so incapable of testifying, unless he shall be first called to testify on behalf of such last mentioned party, or unless some person having an interest adverse to that of the party so incapable of testifying shall have previously testified to some fact occurring before such inability ac- crued : or unless the contract or other transaction which is the sub- ject of the investigation, was made or had with the agent of the party so incapable of testifying, who is alive and competent to testify ; or unless, in the case of partners or other joint contractors, when the person who has become incapable of testifying was not the only partner or other only joint contractor with whom such contract or other transaction was personally made or had ; and when one of the parties is an executor, administrator, curator or committee or other person representing a dead person, an insane person, or a con- vict in the penitentiary, the other party shall not be permitted to testify in his own favor, unless such contract or other transaction was originally made or had with a person who is living and com- petent to testify, except as to such things as have been done since the powers of such fiduciary were assumed, and except, also, when some other party in interest has previously testified ; or unless some person having an interest adverse to the party so incapable of tes- tifying, shall have previously testified as aforesaid : provided how- ever, that no witness who would have been competent to testify as the law stood before the passage of this and the preceding section shall be rendered incompetent hereby. 411. Because of the exceptions mentioned before, sec. 410, it becomes neceesary to consider the doc- trines in force, prior to the recent statutes, in regard to the competency of witnesses. These doctrines rule in all the cases embraced in the exceptions. The law concerning the incompetency of witnesses on account of interest, as it stood prior to the statutes, Code L873, chap. 172, §§ 21, 24, Sess. Acts 1876-7, chap. 256, and United States Bev. Statutes, § 868. 412. The law rejected the testimony of persons whose interest was directly involved in the matter in issue. 1 Grreen. Evi. § 327. 57 450 SUITS IN EQUITY. The interest of a witness which disqualifies him must be in the result not in the question merely. Masters vs. Varner, 5 Grat. 168, 1 Green. Ev. § 389, Barneit vs. Watson, dc, 1 Wash. 372, Baring vs. Heeder, 1 H. & M. 154, Richardson vs. Carey d als., 2 Eand. 87: it must be direct and legal, 1 Green. Ev. § 386, and a certain interest in the event of the cause, Taylor vs. Beclc, 3 Eand. 314, Braxton vs. Hilyard, 2 Munf. 49 ; it must be real and not merely a supposed interest, 1 Green. Ev. ■§387; because a witness believes he is interested he is not there- fore incompetent, 1 Eob. Pr. (old) 327, 328, (correcting the syllabus of Richardson vs. Surd, in 2 Munf. 148) ; it must not be merely an honorary obligation, 1 Green. Ev. § 388. The true test of the ■disqualifying interest is, that the witness will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action, Richardson va. Carey dais., 2 Rand. 87, 1 Green. Ev. §300. The magnitude and degree of the interest is not regarded, Ihid. •371 ; the disqualifying interest may be proved by the witness him- self or by evidence aliunde, 1 Green. Ev. § 423. There is, some- times, an interest arising from liability over in the event the suit is determined against the party for whom he testifies, 1 Green. Ev. § 393. Thus, in the case of an agent or servant, he is disqualified as a witness for his principal in a suit against the principal, on ac- count of the neglect of the agent or servant, 1 Green. Ev. § 394; and so a co-contractor is incompetent as a witness. Ibid. § 395. But a notary is a competent witness to prove his own acts in pre- senting a note for payment, &c., though liable to the plaintiff for negligence if he had not presented it. Goohendorfer vs. Preston, 4 How. 317, and in Hammen vs. Minnick, 32 Grat. 249, it was held that a deputy sheriff who levied an execution on property was a competent witness for his principal to prove that he had levied other executions which previously came to his hands on the same property and the whole proceeds thereof were consumed in the payment of these executions and that the debtor had no other property. Even an implied warranty disqualifies, 1 Green. Ev. § 398 ; but this implied warranty in the case of sales by sheriffs, executors, administrators and other trustees is understood to extend no further than this, that they do not know of any infirmity in their title to sell in such capacity ; and, therefore, they are in gene- ral competent witnesses. Ibid. Liability to costs disqualifies a witness, 1 Green. Ev. §§ 401, 402, and title to restitution. Ibid. 403. In the note subjoined*' will be *'The following are oases in the United States Courts other than those I already cited: 1 Phillipi vfl. Fr&sion, 5 How. 278. Two endorsers of a negotiable note con- EVIDENCE. 451 found other cases ruled in the United States Courts and in the Vir- ginia State Courts concerning the incompetency of witnesses on the ground of interest. tract that they will divide the loss between them ; the payee is a competent witness to prove this contract. Taber vs. Ferrott, 9 Or. 39. A, the sole owner of a bill of exchange en- dorses it in blank and delivers it to B to deliver to C for collection, and when collected to place the amount to the credit of A and B in account ; C collects the amount but refuses to place it to the credit of A and B, and they settle their account with C and pay him the balance : In a suit afterwards insti- tuted by A against C for the amount received upon the bill of exchange, B is a competent witness for A. Davis vs. Brown, 5 Otto 423 (explaining and qualifying B'k U.S.Tra.Dunn, 6 Pet. 51) ; an endorser of a promissory note, still held by the party to whom the endorsement was made, is a competent witness to prove an agreement in writing made with its holder at the time of his endorsement that he should not be held liable thereon. Scott vs. Lloyd, 12 Pet. 145. The grantor of a rent charge who had de- vested himself of all interest in the land and who was released from all lia- bility to costs, not being a party on the record, is a, competent witness to prove usury. Patton vs. Taylor, 7 How. 133. A naked trustee, having no interest in the trust fand, is a competent witness in a suit concerning that fund. .Seams vs. Settich, 1 Wheat. 453. A person sued for an infringement of a patent is a competent witness for another person sued for infringing the same patent. Evans vs. Eaton, 7 Wheat. 356. A person who has used the improvement claimed by the patentee, is a competent witness for one sued for violating the patent. Tayloe vs. Riggs, 1 Pet. 591. The affidavit of a party is competent evi- dence of a loss of a paper ; not conclusive, but to be weighed in connection with the circumstances. In prize causes, — The Aune, 3 Wheat. 435; Taylor vs. U. 8., 3 How. 197; V. a. vs. Mwrphy, 1.6 Pet. 203. Saltmarsh vs. Tuthill, 13 How. 229. A party to a bill of exchange is in- competent to prove any fact, which taken in connection with other facts, cuts off a part of the nominal amount of the bill. K (S. vs. Leffler, 11 Pet. 86. The rule that a party to an instrument shall not be heard as a witness to impeach it, is confined to negotiable instruments. Smyth vs. Strader, 4 How. 404. A party to a negotiable note cannot im- peach it by his testimony ; a fortiori, if he be also a party to the record. B'k of the Metro, vs. Jones, 8 Pet. 12. In an action by an endorsee of a note against an accommodation endorser the maker is not a competent wit- ness to prove that the endorsee informed the endorser he would incur no re- 452 SUITS IN EQUITY. 413. The law also excluded parties and mad& them incapable of testifying in their own behalf and relieved them from testifying in behalf of their ad- versary ; and the rule extended to all the actual and sponsibility by putting his name on the note. This was substantially the case of B'h of U. S. vs. Dunn, 6 Pet 51, and that case is modified by Davis tb- Brown, 5 Otto 423, cited supra. Stein vs. Bowman, 13 Pet. 209. A curator, party to the record, is not a competent witness, even if his liability to costs were set aside. Bridges & ah. vs. Armour & als., 5 How. 91. A party upon the record, although divested of all interest in the event of the suit, is not a competent witness in a cause. (It was a common law suit). Riddle vs. Moss, 7 Or. 206. The principal obligor in a bond is not a compe- tent witness for the surety, in an action upon the bond; the principal being, liable to the surety for costs in case the judgment should be against him. ViEGiNiA Cases. Murray vs. Oarrott, 3 Gall 573. An agent purchasing a bill of exchange and endorsing it to his principal is a competent witness to prove the loss of" the bill. Wilson vs. Alexander, 9 Leigh 459. Deputy sheriff taking an indemnify- ing bond incompetent as a witness on behs^lf of the obligors in an action on the bond. Accord, Carrington vs. Anderson, 5 Munf. 32. Blair vs. Owles, 1 Munf. 38. A purchasing agent competent to prove that his principal had notice of an incumbrance notwithstanding the agent had joined in a conveyance of the property to the principal free from the claim of any person whatsoever. Oilliam vs. Olay, 3 Leigh 590. The obligee and assignor of a bond not a competent witness for the obligor in any controversy between the obligor and assignee to prove that the bond was founded on a usurious transaction be- tween the assignee and obligor. Accord, Wise vs. Lamb, 9 Grat. 294. Beverley vs. BrooJee, 2 Leigh 425. A debtor in two mortgages is not a competent witness in behalf of the second mortgagee to prove usury in the first mortgage. Kevan vs. Branch, 1 Grat: 274. A grantor in a deed of trust is a compe- tent witness for the claimant under the deed to prove that the property levied on by an officer under an execution against him is the same conveyed in the deed. Accord, Patterson vs. Ford, 2 Grat. 18. Jones vs. Raine, 4 Rand. 386. A principal obligor in a bond cannot be a witness for his surety jointly bound with him, because he is liable to the latter for the entire recovery against him including all subsequent costs. EVIDENCE. 453 Teal parties to the suit, whether they were named on the record as such or not. Rex vs. Woburn, 10 East. 395. A plaintiff or defendant liable as such for the costs which might be recovered by his ad- versary could not oe admitted as a witness for his co-plaintiffs or co-defendants. The King vs. Gov- ernor, &G., of St. Mary Magdalen, &c., 3 East. 7. The rule went farther in the case of co-plaintiffs. " The better opinion," says Prof. Greenleaf, " is that one of several co-plaintiffs who voluntarily comes forward as a witness for the adverse party is not ad- missible without the consent of his co-plaintiffs." 1 Green. Ev. § 354. Caldwell vs. McCartney, 2 Grat. 187. A guarantor without consideration of a bond a competent witness for the obligors to prove usury. Fraser vs. Bevill, 11 Grat. 9. When a co-administrator is a competent wit- ness for a contingent legatee against a legatee for life who is also an admin- istrator. Dickinson vs. Dickinson, 2 Grat. 493. The widow of a testator a compe- tent witness in a controversy between the legatees as to that part of the es- tate in which she is but remotely interested. Sudgin vs. Hudgin, 6 Grat. 320. A creditor having been paid by a sale of land under a decree against the executor, and the devisees having recovered the land from the purchaser, the creditor is a competent witness for the pur- chaser against the devisees to prove the amount and justice of his debt. Ford vs. Nichols, 3 Grat. 84. A drawer of a bill for whose' accommoda- tion it has been accepted is not a competent witness for the acceptors in an action thereon by the holder against them. Steptoe vs. Head, 19 Grat. 1. In an action upon a joint or joint and seve- ral contract against two defendants, one of them is not a competent witness for the other to prove that the witness was the only party to the contract and is alone bound by it. Eacho vs. Cosby, 26 Grat. 112. A trustee who is not named as a party .plaintiff in an amended and snpplemeital bill, though named in the original bill, is not liable for costs and is a competent witness to prove what passed between the grantor and himself as to the preparation of the deed. Shannon vs. McMullen, 25 Grat. 211. When sheriff a doubtful witness to sustain a bill brought by a surety against a creditor to be relieved on the ground that the creditor had authorized the sheriff to release the property levied on under an ezecatiou. 454 SUITS IN EQUITY. Where the suit was ended as to one, either by default or nolle: prosequi, or by verdict, as he had no direct interest in its event as to the others, if not otherwise disqualified he was a competent wit- ness for them, his own fate being at all events certain. 1 Green. Ev. §§355, 360, 363. But in Taylor vs. Bech, 3 Eand. 316, whiok was a joint action upon a contract against several defendants, it was held that though one of them acknowledged the action it did not make him a competent witness for the other defendants ; his acknowledgment of the action could only be received and entered as an interlocutory judgment, dependent on the final judgment to- be entered in the case. To the rule excluding parties there were other exceptions, even at law. Thus, when the oath in litem of the party was admitted after it had been proved that the party against whom it was ofiered had been guilty of some fraud or other tortious or unwarrantable act of intermeddling with the complainant's goods.** Herman vs. Drinhwater, 1 Greenl. 27. And when, on general grounds of public policy it was deemed essential to the purposes of justice, 1 Green. Ev. § 348 ; this latter is confined to cases where from its nature no other evidence is attainable. U. 8, vs. Murphy, 1& Pet. 203. 414. Balancing of interest. When the witness- was equally interested on both sides he might testify. 1 Grreen. Ev. § 420. A preponderance of interest on the one side disqualifies the witness. lUd. In Brown's adm'or vs. Johnson, 13 Grat. 644, it was contended that the witness was competent on the ground that though inter- ested in favour of the party ofifering him, his interest was equal or greater the other way. But the court rejected his testimony, be- cause his interest in the latter case was not as direct and imme- diate as in the former. Judge Lee, in this case, collects the English cases upon the point. In Sitlinfftons vs. Brown, 7 Leigh 271, the debtor mortgaged the same land, by successive deeds, to two several creditors, and the second was duly recorded, but the first was not ; the land was sold *^ Where a ship maBter had received a trunk of goods and rifled its contents, the plaintiff after establishing the delivery of the trunk, was admitted as a, witness in his own behalf to prove the contents of the trunk. Herman vs. Drinhwater, 1 Greenl. 27. As to the question whether such evidence was ad- missible against a baillee in an action for negligence ; see in support of it, Clarke vs. ^ence, 10 Wall's R. 335, in denial of it, Snow vs. East B. S. Go.,. 12 Metcalf 44. EVIDENCE. 455 nnder the provisions of the second deed, and the creditor in that deed became the purchaser: on a bill by first mortgagee against the mortgagor and second mortgagee charging the second mortga- gee with notice of the prior unrecorded mortgage and praying that the land be resold to satisfy the plaintiflF's debt, it was held that neither the mortgagor nor his wife was a competent witness for plaintiff to prove that the second mortgagee had notice of the plaintiffs prior mortgage. 415. In the equity courts the rule as to examining parties to the record was much more liberal than at law. A plaintiff might obtain an order as of course to examine a defendant, and a defendant a co-defen- dant, as a witness, on affidavit that he was a material witness and was not interested on the side of the applicant in the matter to which it was proposed to examine him and was not interested adversely to the rights of his co-defendants ; the order being made subject to all just exceptions.*' Grreen. Evi. § 361; 2 Dan. Ch. Pr. (old) 450, 452. Dan. Ch. Pr. (Perk.) 884^6, notes. 416. The rule permitting a defendant to be thus examined applied as well to a defendant who had by his answer submitted to a decree and had there- fore ceased to have an interest, and to one who though having an interest had it in respect only of a part of the matters in issue. See Adams's Eq. 364, 2 Dan. Ch. Pr. (old) 450, 454. Bradle?/ vs. Boot, 5 Paige 633. Dan. Ch. Pr. (Perk.) 886, notes. 417. A party plaintiff was incompetent as a wit- ness for his co-plaintiffs. If a co-plaintiff desired his ^ Whenever a defendant was thus examined as a witness he was subject to a cross-examination by the other defendants, and his evidence could not be used in his own favor. Benson vs. LeMoy, 1 Page 122, 456 SUITS IN EQUITY. evidence and the defendant would not consent to the examination, the party must move to strike out his name as plaintiff on payment of the costs already incurred and make him a defendant by amendment. Adams's Eq. 365. The plaintiff's next friend was incompetent. To obtain his testimony his name was struck out and another next friend substitued on giving security for the costs already incurred. 2 Dan. Ch. Pr. (old) 449. See Burwell <£ als. vs. Oorhin, 1 Eand. 131, as to a, party made next friend without his knowledge or consent being a competent witness. 418. Whether a plaintiff hy examining a defendant as a witness released him. Before the statute 6 and 7 Vict. c. 85, Lord Denman's act, making persons interested competent witnesses and before the statute 14 and 15 Vict c. 99, the "Law of Evidence Amend- ment Act," making parties to the record competent and compellable to give evidence, it was held in the English courts that the examination of a defendant by the plaintiff as a witness ordinarily operated as an equitable release to him so far as regarded the matters to which he was interrogated ; and no decree could be had against such defendant except as to m itters wholly distinct from those to which he was examined. Weymouth vs. JBoyce, 1 Ves. 417 ; Night- ingale vs. Dodd, Amb. 583 ; Thompson vs. Harrison, 1 Cox C. C. 344; Meadhury vs. Isdall, 9 Mod. 448. The rule was followed in many of the American courts: in New York, Benson vs. LeRoy, 1 Paige 122; in Maryland, Hayward vs. Carroll, 4 H. & J. 518 ; in North Carolina, Lewis vs. Owen, 1 Ired. Eq. 93. EVIDENCE. 457 We have no Virginia decision on this point ; and it is now contended that the rule is virtually abrogated by the new statutes in Virginia making a party com- pellable to give evidence for his adversary under penalty, if he refuses, of striking out his defence, or dismissing his suit, &c. See sec. 410 ante. 419. A defendant might sometimes examine the plain tiflf, even before the recent statutes, and a co- plaintiff might generally be examined as a witness for the defendant, by consent, Walker vs. Wingfield, 15 Ves. 178, but leave will not be granted for a de- fendant to examine a co-plaintiff as a witness against another defendant for the purpose of sustaining the bill against him. Echfield vs. BeJcay, 6 Paige 565, 3 Green. Ev. § 317. See Ross vs. Carter, 4 H. & M. 488 420. Co- defendants as witnesses. Co-defendants may be witnesses for each other; the testimony of a co- defendant may be had, in all cases in which he is either a merely nominal defendant, or has no bene- ficial interest, or his interest or liability is extin- .guished by release, or is balanced, or where the plaintiff cannot adduce some material evidence against him, or where no decree is sought, or none can be properly had against him. Piddock vs. Brown, 3 P. Wms. 288, Franklyn vs. Colquhoun, 16 Ves. 218, Dixon vs. Parker, 2 Ves. 219, 3 G-reen. Ev. § 318, n. 2. 421. Husband and Wife. Husband and wife are incompetent as witnesses for each other. See sec. 408 ante. Johnston, &c. vs. Slater & als., 11 Grrat. 58 458 SUITS IN EQUITY. 320, Wm. & M. College vs. Powell & ah., 12 lb. 372, Steptoe vs. Read, &c., 19 lb. 1, 12, Murphy & als. vs. Carter, 23 G-rat. 477, 488, Hord's aam'or vs. Colbert & als., 28 G-rat. 49, 55, Nelson vs Bowman & als., 29 Grat. 782, Warwick vs. Warwick & als., 31 Grat. 70. 421ffl. Restoring competency of witnesses, A wit- ness disqualified on the ground of interest might have his competency as a witness restored. There are various ways of restoring the competency of such witnesses. The most usual is by a release. See Richardson vs. Carey (& als., 2 Rand. 87, Jones vs. Raine, 4 Rand. 386, Mandeville vs. Perry, 6 Call 78, Murray vs. Carret, 3 Call 323. The competency of a witness is not always restored by a release of the matter in controversy. Rowt vs. Kyle, Gilm. 202,. Reynolds vs. Stephenson, 11 Leigh 369, Cogbills vs. Cogbills, 2 H. & M. 467, Scott vs. Lloyd, 12 Pet. 145, Downey vs. Hicks, 14 How. 240. The objection to a witness's competency may be waived by im- plication as where a party adopts an interested witness by examin- ing him, Rogers vs. Diihle, 3 Paige 241: and where a plaintiff who knew of the objection to the competency of a witness at the time of his examination, proceeded, without first making objection to his competency, to cross examine the witness as to all the issues in the cause, it was held that this was a waiver of all objection to the witness's competency and that the objection could not after- wards be made. Sard's admor vs. Colbert d als., 28 Grat. 49. But when the objection to the competency of a party as a witness is written at the commencement of the deposition the objection is not waived by the cross examination. Statham (£ als vs. Fergu- son's adm'or d als., 25 Grat. 28. A partner who has been released is a competent witness, LeBoy vs. Johnson, 2 Pet. 186; and so a co-obligor in a bond who has been released, U. S. vs. Leffler, 11 Pet. 186. A witness may be rendered competent in certain cases by the covenant of the creditor not to sue him, Waggener vs. Dyer, 11 Leigh 384. Sometimes the competency of the witness is restored by striking off the name of EVIDENCE. 459' the witness as an endorser, 1 Green. Ev. § 430, or in the case of a bail or surety for another by the substitution of another surety, Ibid. So a witness's competency is restored by his discharge as a bankrupt. Ihid. See i?eyno/(fs vs. CaZZaway, 3 i Grat. 436. And a witness has been made competent to testify for a corporation by the transfer of his stock therein, 1 Green. Ev. § 430, and by aeaign- ment of his interest his competency is sometimes restored, Tohy vs. Leonards, 2 Wal. 423, Parrishms,. Parrish, II Leigh 626. 422. Exceptions to the rule. A remote, contingent and uncertain interest did not disqualify a wit- ness. Thus a paid legatee of a specific sum was a competent witness, 1 Green. Ev. § 408. A party en- titled to a reward from the government upon convic- tion of the offender or to a restoration as owner of property stolen is a competent witness. Ihid. § 412. A party whose name has been forged is a competent witness. Ibid. § 414. In certain cases, agents, car- riers, factors and other servants are admitted to prove the making of contracts, receipt or payment of money, receipt or delivery of goods and other acts done in the scope of their employment. Ihid. § 416. And so, in some cases, though not in all, a witness originally competent to testify is not dis- qualified by reason of any interest subsequently ac- quired in the event of the suit. See Bent vs. Baker., 3 T. R. 27.^ And in Qoodtitle vs. Welford, 1 Doug. 139, it was held that when an interested witness did all in his power to divest himself of his interest by offering to surrender or release it which the surren- deree or lessee, even though a stranger, refused to accept, the rule of exclusion no longer applied and the witness was decided to be admissible. ^Ihe case of Winship w. Banh U. S., 5 Pet. 529, 552, should be referred to. 460 SUITS IN EQUITY. 423. Incompetency as to certain matters. The rules disqualifying a witness as to matters disclosed to him as a solicitor or attorney or proctor or coun- sellor or scrivener or conveyancer of course apply to such matters only. See Gres. Eq. Ev. 378, 380, 11 Wheat. 280 ; Parker vs. Carter, 4 Munf 273 ; Lyle vs. Higginbotham, 10 Leigh 75. The right to withhold the answer in such cases is the privilege not of the witness but of the client. Grres. Eq. Ev. 378. It was at one time decided that a party who had signed a deed or other writing would not be admitted to invali- date it by his testimony either by proving fraud or other defect. The rule was afterwards restricted so as to forbid such testimony only in the case of negotiable securities. This latter doctrine though sanctioned by some of the cases, Mr. Grresley states has been overturned in the English courts. See Gres. Eq. Ev. 385, 386 and cases cited. In the B^k 0. S. vs. Dunn, 6 Pet. 51 ; Wk Metropolis vs. Jones, 8 Pet. 12 ; Herir derson vs. Anderson, 3 How. 73 ; IT. S. vs. Leffler, 11 Pet. 66; Saltmarsh vs. Tuthill, 13 How. 229 and other cases the rule has been applied by the United States courts to negotiable securities : and in an early case before the Virginia Court of Appeals, Claiborne vs. Parish, 2 Wash. 148, the court held that the tes- timony of a witness tending to fix fraud upon him- self ought not to be regarded and the jury should be so instructed. But in Clay vs. Williams, 2 Munf. 105, the judges were not agreed on the question whether the evidence of a person employed by both parties as an attorney or scrivener to write a bond for a fraudulent purpose should be admitted to prove EVIDENCE. 461 the fraud. Harrison vs. Middleton, 11 Grat. 627^ seems to remove the doubt suggested by Clai/ vs. Wil- liams. In Harrison vs. Middleton, 11 Grat. 527, a subscribing witness was introduced to prove that a deed was misread to the defendant, 424. Whether competent as a witness for one pur- pose only. In Steptoe vs. JRead, 19 Grat. 1, it was held that if a witness is competent at all he may be examined upon any matter upon the record ; his competency depends on his interest in the event of the cause and not on the particular question to which the party calling him might choose to examine him. See the cases cited 19 Grat. 13. Mr. Barton supposes that this rule is now changed. Bart. - L. P. 196. He cites Field vs. iBrown, 24 Grat. 74, in sup- port of his position. Competency of witnesses under statutes Code 1873, chap. 172, sec. 21-24, Sess. Acts 1876-7, ch. 256, and TJ. S. Bev. Stat. § 858. 425. The doctrines of the preceding sections 412— 24, are now controlled and modified by the recent acts. See the Stat. Code 1873, chap. 172 and Sess. Acts 1876-7, chap. 256 in section 410 ante, and the statute in U. S. Rev. Stat. § 858 in sec. 409, ante. '426. U. S. Bev. Stat. § 858. The statute of Con- gress, U. S. Rev. Stat. § 858 has come in review in the cases found in the subjoined note.^^ ^' Oreen vs. U. States, 9 Wal. 655. The statutes of Congress declaring that there shall be no exclusion of any witness in civil actions " because he is a 462 SUITS IN EQUITY. 427. The Virginia Statutes. The recent Statutes of Virginia, Code 1873, chap. 172, §§ 21-24, have come into review in the cases found in the subjoined note." party to or interested in the issue tried " apply to civil actions in which the United States are a party as well as to those between private parties. Comett vs. Williams, 20 Wal. 226. A common law cause, in which it was declared that the testimony of a witness under the statutes might be given by deposition. iMcas vs. Brooks, 18 Wal. 436. The act of Congress does not give capacity to a wife to testify in favour of her husband. Texas vs. Chiles, 21 Wal. 488. The intention of the act of Congress is to put the parties to a suit (except those named in the proviso to the enactment) on a footing of equality with other witnesses, i. e., all are admissible to testify for themselves and all compellable to testify for others. V. S. vs. Clark, 6 Otto 37. A case concerning the construction of sec. 1079 of the Rev. Statutes, in which the court Ijeld that the petitioner was a compe- tent witness to prove the contents of a package of government money taken from hi'5 official safe by robbers. Potter vs. National Bank, 12 Otto 163. An action against an executor in his representative capacity. A, who was interested in the issue but not a party thereto, was introduced as a witness by the plaintiff and permitted to testify to statements of the testator touching the subject matter in controversy. The witness was compent and the evidence admissible. 5' Field vs. Brown, 24 Grat. 74. The plaintiff in a cause is not a competent witness under the statutes to prove the acts and declarations of a deceased person under whom the defendants claim. See notice of this case in Mlis vs. Harris, 32 Grat. 691, and Bart. Law Pr. 195 and note 1. Martz vs. Martz, 25 Grat. 361. One party is not incompetent to testify merely because another party is incompetent on account of insanity or the relation of husband and wife or for any other legal cause unless he was a party to the transaction or the contract which is the subject of investigation. See Bart. Law Pr. 195. Mason vs. Wood, 27 Grat. 783. After the death of one of the obligors in a bond given for the price of a jack sold with a warranty of soundness, the surviving obligors are incompetent to testify as to conversations had with them long after the sale relating to the alleged breach of warranty ; though these conversations occurred after the death of the deceased obligor, and though the surviving obligors were offered as witnesses to rebut and counter- vail the testimony of witnesses as to conversations with them. Origsby vs. Simpson, 28 Grat. 348. Obligors in a bond sued by assignee of a deceased obligee are not competent to testify in their own behalf. Morris vs. Oi-ubh, 30 Grat. 286. The only proof of the execution of oer. tain bonds purporting to be executed by C and D and assigned to B was an EVIDENCE. 463. 428. Whether trustee, executor or other fiduciary liable for costs a competent witness. The Statute, Code 1873, chap. 172, § 19, enacts among other provisions acknowledgment by C to an agent of B made after the assignment to him, and the proof as to the payments was of payments made by D to B in the life- time of 0, held that B was not a competent withess under the Statute to testify in his own behalf Parent vs. Spitler, 30 Grat. 819. A and B commissioners sell land to ■who executes his bonds for the deferred payments with D and E as his sureties, and subsequently sells the land to F. A being dead, D, E, and F, are incompetent witnesses to prove the payment of the bonds by C to A. Burlcholder vs. Ludlam, 30 Grat. 255. When a party to a suit is examined as a witness and testifies about transactions the other party to which is dead, if he does not testify in his own favor or in favor of any other party having an interest adverse to the party who is dead, or those claiming under him, but against his own interest and the interest of those having an interest ad- verse to the dead party, he is not incompetent. Reynolds vs. Callaway, 31 Grat. 436. T. having been released from the payment by his discharge in bankruptcy was a competent witness at common law for the defendant to prove payment of the debt ; and the recent statutes were only designed to remove incompetency in certain cases, not to create it in any. The court refers specially to the effect of Sess. Acts 1876-7 ch. 256. Ellis vs. Harris, 32 Grat. 684. An action by E. against H.'s executor to recover damages for injury to his laud by the overflowing and sobbing of his land lying on a stream on which H. had built a dam in 1848, the overflowing it was claimed was the effect of the dam. H. who built the dam being dead, the plaintiff E. was not a competent witness to prove anything occurring in the lifetime of H. Carter vs. Sale, 32 Grat. 115. An action on a bond by the obligee against the surviving sureties and the representative of one deceased, the plea was payment, which consisted of notes given by one surety to the obligee. The surety was an incompetent witness. Terry vs. Eagsdale, 33 Grat. 342. In an action against a surviving part- ner upon a transaction in which the deceased partner was the acting party, the plaintiff introduced the defendant as a witness. The defendant so intro- duced becomes a competent witness in the cause ; but this does not render the plaintiff a competent witness, Simmon,! vs. Simmons, 33 Grat. 451. A witness who was not a party to the contract or transaction which is the subject of investigation is not dis- qualified on account of interest only; although one of the original parties to such contract or transaction be dead, insane or incompetent to testify by rea- son of infamy, or any other legal cause, and for that reason the other party is rendered incompetent to testify. 464 SUITS IN EQUITY. that "no trustee, executor or other fiduciary shall be- incompetent as a witness in any case by reason only of his being a party thereto, or of his being liable to costs in respect thereof; but if liable to costs he shall not be competent, unless some person under- take to pay the same." This statute was passed be- fore the recent statutes extending competency of wit- nesses. Whether these statutes have repealed the above provision awaits judicial decision. By Code 1873, chap. 118, § 21, " No person shall, on account of his being an executor of a will, be incompetent as a witness for or against the will." 429. Mode of taking evidence in equity. The mode of taking evidence in equity differs from that adopted in common law courts. At law it is taken viva voce and publicly: in equity, it is chiefly written and, in the English practice, it is secret.** 430. Viva voce testimony is sometimes allowed in equity causes in the United States Circuit Courts. By the 78th rule of practice, provision is made for "the examination of witnesses viva voce when pro- duced in open court, if the court shall in its dis- cretion deem it advisable." 431. The usual course however in equity causes in the United States Circuit Courts, is to take the testi- mony in writing. 432. The 67th rule of practice prescribes : " After the cause is at issue commissions to take testimony may ^ As to cases in the English courts, in which viva voce testimony admitted, see Ores. Eq. Evidence (edition 1837) 126, 128, 380 ; 2 Dan. Oh. Pr. (old) 436, 593, 848. EVIDENCE, 465 be taken out in vacation as well as in term, jointly by both parties or severally by either party, upon interrogatories filed by the party taking out the same, in the clerk's office, ten days' notice thereof being given to the adverse party to file cross interrogatories before the issuing of the commission ; and if no cross interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or commissioners shall be named by the court or by a judge thereof." See amendment to this last clause in section 463 post. 433. It was also prescribed by th.e 67th rule before cited that if the "parties shall so agree the testimony- may be taken upon oral interrogatories by the parties or their agents without filing any written in- terrogatories ; " but this provision has been substi- tuted by the one hereafter noted in section 463. 434. Testimony may also be taken in the United States Circuit Courts after the cause is at issue, ac- cording to the provisions of the Act of Congress. The Revised Statutes of the United States provide — By Sec. 862. The mode of proof in causes of equity and of admirality and maratime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided. By Sec. 863. The testimony of any witness may be taken in any civil cause depending in a district or circuit court by depositions de bene esse when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the dis- trict in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient or infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a Circuit court, or any clerk of a District court or Circuit court, or any chancellor, justice, or judge of a Supreme or Superior court, mayor or chief magis- trate of a city, judge of a county court or court of common pleas ot any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take 59 466 . SUITS IN EQUITY. such deposition, to the opposite party or his attorney of re- cord, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition ; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in ; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit . or district shall think feasonable and direct. Any person may be compelled to appear, and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court. By section 864. Every person deposing as provided in the pre- ceding section, shall be cautioned and sworn to testify the whole truth, and carefully ezamined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent. By section 865. Every deposition taken under the two preceding sections shall be retained by the magistrate taking it, until he de- livers it with his own hand into the court for which it is taken ; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court and remain under his «eal until opened in court. But unless it appears to the satisfac- tion of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred mUes from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause. By Sec. 866. In any case where it is necessary, in order to pre- vent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions accord- ing to common usage ; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. And the provisions of sections eight hundred and Bixty-three, eight hundred and sixty-four, and eight hundred and sixty-five, shall not apply to any deposition to be taken under the • authority of this section. By Sec. 867. Any court of the United States may, in its discre- tion admit in evidence in any cause before it any deposition taken in perpetuam rei memoriam, which would be so admissible in a EVIDENCE. 467 •court of the State wherein such cause is pending, according to the laws thereof. 435. The 70th rule of the United States Supreme Court prescribes : " After any bill filed, and before the defendant hath answered the same, upon af&davit made that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any one of them is a single witness to a material fact, the clerk of the court shall as of course, upon the application of the plaintiff, issue a commission to such commissioner or commissioners as a judge of the court may direct to take the examination of such witness or witnesses de bene esse upon giving due notice to the adverse party of the time and place of taking his testimony."" 436. Three months allowed to take testimony in the United States courts. In the United States Circuit courts, by the 69th rule of practice of the United States Supreme Court, " three months and no more are allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time ; and no testimony taken after such period will be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony, into the clerk's office, publication thereof may oe ordered in the clerk's office by any -judge of the court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But by the consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order book, or endorsed upon the depo- sition or testimony." " See the rule in the English courts to the same eifect in 2 Dan. Ch. Pr. (old) 541. 468 SUITS IN EQUITY. 437. In the Virginia State courts. Testimony in equity causes in the Virginia State courts is usually taken by depositions, the witnesses are examined orally by the ofBcer taking the deposition and their testimony is reduced to writing. The deposition is usually signed by the witness. It is not essential to the validity of the deposition that it should be signed. Barnett vs. Watson, 1 Wash. 372. 438. A commission or dedimus protestatem was formerly necessary in the Virginia State courts though the deposition was to be taken in the State. The act of March 7th, 1826, declared that " from the filing of the bill until the final hearing of any case, either party may without any order of court, obtain general commissions, and take depositions to be read therein," Sup. to Rev. Code, p. 132 ; and the act pro- vided for " Special commissions to take the deposi- tion of any party in a suit, if the same may lawfully be taken, saving all just exceptions to the reading of such deposition, and saving to the court the right to quash such special commission for good cause shown." Ibid. The present statute, Code 1873, ch. 172, sec. 34 is as follows : " In any pending case°^ the deposition of a witness, whether a party to the suit or not, may, without any commission, be taken in ^* This language designed to condense and embody the provisions of the prior statutes, 1 E. C. 1819, p. 300, oh. 83, sec. 2; p. 522, oh. 132; Sess. Acta 1822-3, p. 40, c. 39 ; 1825-6, p. 16. sec. 5 ; 1826-7, p. 19, ch. 20, sec. 1, and 1833-4, p. 75, ch. 62, sec. 2, is certainly as broad as the language of the act of March 7th, 1826, " from the filing of the bill until the final hearing of any case." It authorizes (it seems to the writer) the taking of depositions in chief from the time of the institution of the suit, certainly from the time of the filing of the bill, even before the parties are at issue. EVIDENCE. 469 this State by a justice or notary public, or by a commissioner in chan- cery ; and if certified under his hand may be received without proof of the signature to such certificate. When a deposition ap- pears to be of a party, all exceptions may be made to the reading of it which could have been made if it were taken under a special commission, but the taking of such deposition shall not deprive the party taking it of any relief he would otherwise be entitled to against the deponent." When the witness resides out of the State, or is out of it, in the service thereof, or of the United States, a commission to take the deposition is necessary. The mode of ob- taining the commission is prescribed by the statute. Code 1873, ch. 182, sec. 35. 439. Notice of taking depositions. Reasonable notice should be given to the adverse party of the time and place of taking every deposition, and the deposition may be read, if returned before the hear- ing of the cause in equity, or though after an inter- locutory decree, if it be as to a matter not there- by adjudged, and be returned before a final decree. Code 1873, ch. 172, sec. 36. Fant vs. Miller, 17 Grat. 187. 440. Eeasonable notice. What is reasonable notice depends on circumstances. ^° Where a notice was left with the wife of the party at his dwelling-house, when it was known to the adverse party that he was absent on a journey to another State, and where it appeared also that the notice might previously have been given to the party himself, and that the taking of the deposition might have been postponed, as it respected the trial of the cause, till his return, it was held that the notice was insufficient and the deposi- tion was rejected. Coleman vs. Moody, 4 H. & M. 1. *^ A notice given at 8 P. M. of the taking of the depoeition on the next day between 8 and 9 A. M. was held sufficient under the circumstances of the •case in MoQinnis vs. Washington Sail Association, 12 Grat. 602. 470 SUITS IN EQUITY. A notice was given by plaintiff to defendant for taking the depositions of several witnesses at a speci- fied place in Missouri on six successive days between certain hours of each day. Considering the distance- of the place appointed for taking the depositions, and the uncertainty of the precise time at which the party would be enabled to have things in readiness for taking them, the notice was held sufficiently definite. Kincheloe vs. Kincheloe, 11 Leigh 393. 441. A notice to take the depositions was held in- sufficient because it did not appear that notice of the place at which they were to be taken was given ; and though the magistrates met on the day appointed by the notice they could not go on with the depositions, at any future day without an adjournment to such day. Hunter vs. Fulcher, 5th Rand. 126. Notice was given that a deposition would be taken on the 8th of August, and that if not taken in one day the commissioners would adjourn from day to day until finished. The commissioners met on the 8th and ad- journed from day to day until the 12th. From th& 12th they adjourned to the 19th, on which day the deposition was taken. It was decided that the depo- sition was not taken agreeably to notice. Buddicwm vs. Kerk, 3 Cr. 297 ; Chaney vs. Saunders, 3 Munf. 51. 442. Deposition after an appeal. In the Virginia State courts, in any case wherein there has been a decree or order from or to which an appeal, writ of error or supersedeas has been or might be allowed, a deposition may be taken for any party to such case, or for or against his or her husband, personal repre- EVIDENCE. 471 sentatives, heirs or devisees, in like manner, and by such persons, as is prescribed for pending cases ; and it may be read in any future trial that may be directed, if the same could properly be read had there been no such decree or order. Code 1873, ch. 172, sec. 39. 443. When, after interlocutory decree, new evidence may he introduced. There is no rule of practice or of law which precludes the party from taking new evi- dence upon a question of fact passed upon by an in- terlocutory decree, even before a re-hearing is ob- tained. Staples, J., in Summers vs. Barne & als., 31 Grrat. 805. The introduction of such evidence de- pends on the sound discretion of the court and all the circumstances of the particular case. Dunbar^s ex' or vs. Woodcock's ex' or, 10 Leigh 628 ; Moore vs. Hilton, 12 Leigh 1. See also Alexander vs. Morris & als., 3 Call. 89, in which a deposition taken after an appeal from an interlocutory decree in chancery was read upon the hearing of the appeal 444. Who authorized to take depositions in Virginia State Courts. The officers authorized to take deposi- tions in the State are justices, notaries public, and commissioners in chancery. Beyond the State, if in the United States, a commissioner appointed by the Governor of Virginia, or any justice or notary public of the State wherein the witnesses may be, is au- thorized to take the depositions on a commission. Outside the United States, the commission should be directed to such commissioner or commissioners as may be agreed upon by the parties or appointed by 472 SUITS IN EQUITY. the court, or if there be none such, to any American minister, plenipotentiary, charge d'affaires, consul- general, vice-consul, or commercial agent appointed by the Grovernment of the United States, or to the mayor or other chief magistrate of any city, town or corporation in such county, or, any notary public therein. Code 1873, ch. 172, sections 34, 35. 445. Any person or persons to whom a commis- sion is so directed, may administer an oath to the witness, and take and certify the deposition with his official seal annexed ; and if he have none, then the genuineness of his signature shall be authenticated by some officer of the same State or country, under his official seal, unless the deposition is taken by a justice out of this State but in the United States, in which case his certificate shall be received without any seal annexed or other authentication of his sig- nature. Code 1873, ch. 172, sec. 35. How witnesses summoned and compelled to attend, production of documents, &g. 446. In the United States Courts. The United States Revised Statutes prescribe — By See. 868. When a commission is issued by any court of the United States for taking the testimony of a witness named therein at any place within any district or Territory, the clerk of any court of the United States for such district or Territory shall, on application of either party to the suit, or of his agent, issue a sub- poena for such witness, commanding him to appear and testify be- fore the commissioner named in the commission, at a time and place stated in the subpoena ; and if any witness, after being duly served with such subpoena, refuses or neglects to appear, or, after appearing, refuses to testify, not being privileged from giving testi- mony, and sach refusal or neglect is proven to the satisfaction of EVIDENCE. 473 any judge of the court whose clerk issues such subpcena, "such judge may proceed to enforce obedience to the process, or punish the disobedience, as any court of the United States may proceed in case of disobedience to process of subpoena to testify issued by such court. By Sec. 869. When either party in such suit applies to any judge of a United States Court in such district or Territory for a subpoena commanding a witness, therein to be named, to appear and testify before said commissioner, at the time and place to be stated in the subposna, and to bring with him and produce to such commissioner any paper or writing or written instrument or book or other document, supposed to be in the possession or power of such witness, and to be described in the subpoena, such judge, on being satisfied by the affidavit of the person applying, or other- wise, that there is reason to believe that such paper, writing, written instrument, book, or other document is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of said court to issue such subpoena accord- ingly. And if the witness, after being served with such subpoana, fails to produce to the commissioner, at the time and place stated in the subpoena, any such paper, writing, written instrument, book, or other document, being in his possession or power, and described in the subpoena, and such failure is proved to the satisfaction of said judge, he may proceed to enforce obedience to said process of subpoena, or punish the disobedience in like manner as any court of the United States may proceed in case of disobedience to like process issued by such court. When any such paper, writing, written instrument, book, or other document is produced to such commissioner, he shall, at the cost of the party requiring the same, cause to be made a correct copy thereof, or of so much thereof as shall be required by either of the parties. By Sec. 870. No witness shall be required, under the provisions of either of the two preceding sections, to attend at any place out of the county where he resides, nor more than forty miles from the place of his residence, to give his deposition ;• nor shall any witness be deemed guilty of contempt for disobeying any subpoena directed to him by virtue of either of the said sections, unless his fee for going to, returning from, and one day's attendance at, the place of examination, are paid or tendered to him at the time of the service of the subpoena. By Sec. 871. When a commission to take the testimony of any witness found within the District of Columbia, to be used in a suit depending in any state or territorial or foreign court, is issued from such court, or a notice to the same effect is given according to its rules of practice, and such commission or notice is produced to a justice of the supreme court of said District, and due proof is ■ 60 474 SUITS IN EQUITY. macte to him that the testimony of such witness is material to the^ party desiring the same, the said justice shall issue a summons to the witness, requiring him to appear before the commissioners named in the commission or notice, to testify in such suit, at a time and at a place within said District therein specified. By Sec. 872. When it satisfactorily appears by affidavit to any justice of the Supreme Court of the District of Columbia, or to any commissioner for taking depositions appointed by said court — First. That any person within said District is a material witness for either party in a suit pending in any State or territorial or for- eign court. Second. That no commission nor notice to take the testimony of such witness has been issued or given ; and Third. That, according to the practice of the court in which the suit is pending, the deposition of a witness taken without the pre- sence and consent of both parties will be received on the trial or hearing thereof, such officer shall issue his summons, requiring the witness to appear before him at a place within the District, at some reasonable time, to be stated therein, to testify in such suit. By Sec. 873. Testimony obtained under the two preceding sec- tions shall be taken down in writing by the officer before whom tha witness appears, and shall be certified and transmitted by him to the court in which the suit is pending, in such manner as the prac- tice of that court may require. If any person refuses or neglects to appear at the time and place mentioned in the summons, or, on his appearance, refuses to testify, he shall be liable to the same penalties as would be incurred for a like offense on the trial of a suit. By Sec. 874. Every witness appearing and testifying under the said provisions relating to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose in- stance he is summoned, the fees now provided by law for each day he shall give attendance. By Sec. 875. When any commission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is exe- cuted by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, when and where the same was received, and that the said deposition is iii the same condition as when he re- ceived it ; and he shall thereupon transmit the said letter or com- mission, so executed and certified, by mail, to the clerk of the court from which the same issued, in the manner in which his official dis- patches are transmitted to the Government. And the testimony of witnesses so taken and returned shall be read as evidence on the: EVIDENCE. 475 trial of the suit in which it was taken, without objection as to the method of returning the same. [See §§ 4071-4074.] By Sec. 876. Subpoenas for witnesses who are required to at- tend a court of the United Slates, in any district, may run into any other district : Provided, That in civil causes the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. ' 447. In the Virginia State Courts. The Code of 1873, chap. 172, sec. 26, prescribes that a summons may be issued, directed as other process, command- ing the officer to summon any person to attend on the day and at the place that such attendance is de- sired to give evidence before a court, arbitrators, umpire, j ustice, notary public, or any commissioner appointed by a court. The summons may be issued, if the attendance be desired at a court, by the clerk thereof, and in the other cases by any person before whom, or a clerk of a court of a county or corpora- tion in which the attendance is desired, or if it be desired before a justice, by such or any other justice. It shall express on whose behalf, and in what case, or about what matter the witness is to attend. This section shall be deemed to authorize a summons to compel attendance before commissioners or other persons appointed by authority of another State; but only in case they be citizens of this State, and the summons requires the attendance of a witness at a place not out of his county. 448. When it appears by affidavit that a writing or document in the possession of a person not a party to the matter in controversy is material and proper to be produced before a court, or any person ap- 476 SUITS IN EQUITY. pointed by it or acting under its process or authority, such c6urt or a judge thereof in vacation may order the clerk of said court to issue a subpoena duces tecum to compel such production at a time and place to be specified in the order." Code 1873, chap. 172, sec. 27. 449. If any person, after being served with such summons, fail to attend to give evidence, or to pro- duce such writing or document, according to the summons, the court whose clerk issued the summons, or a commissioner in chancery who had issued such summons, or if it was not issued by a clerk, or a commissioner in chancery, a court of the county or corporation in which the attendance is desired, on a special report thereof by the person or persons before whom there was tne failure to attend, on proof that there was paid to him (if it was required by endorsement on the process), a reasonable time be- fore he was required to attend, the allowance of one day's attendance, and his mileage and tolls, shall, after service of a notice to or rule upon him to show cause against it (if no sufficient cause be shown against it), fine him not exceeding twenty dollars, to the use of the party for whom he was summoned, and may proceed by attachment to compel him to attend and give his evidence at such time and place as such court or commissioner may deem fit The witness shall, moreover, be liable to any party grieved for damages. See Code 1873, chap. 172, sec. 28. 450. If any person, after being served with such EVIDENCE. 477 summons, shall attend, and yet refuse to be sworn, or to give evidence, or to produce any writing or document required, he may, by order of the court whose clerk issued said summons, or of the person before whom he was summoned to attend, be com- mitted to jail, there to remain until he shall, in cus- tody of the jailor, give such evidence or produce such writing or document. Code 1873, chap. 172, sec. 29. 451. Any person before whom a witness is to be examined may administer an oath to such witness. Code 1873, chap. 172, sec. 30. 452. JVhen objection of incompetency should he made. Objection to the incompetency of the witness must be expressly made ; and the objection should be raised in sufficient time to enable the adverse party to remove it by a release or otherwise, or to supply the want of the testimony by other witnesses. Mo- hawk Bank vs. Atwater, 2 Paige 60 ; Town vs. Need- Tiam, 3 Paige 552. 453. When the objection is made before the jus- tice, notary or commissioner, it should be noted by him at -the time it is made; and the examination may then proceed. The party making the objection may then cross-examine the witness, without losing his right to have the deposition excluded on the ground of incompetency. Bogers vs. Dibble, 3 Paige 238 ; Perigal vs. Nicholson, &c., Wightweck 64 ; Moorhouse vs. BePasson, Coop. Ch. Rep. 300 ; S. C. 19 Ves. 433, 2 Rob. Pr. (old) p. 337. 478 SUITS IN EQUITY. 454. Prof. Minor lays down the rule that the wit- ness's incompetency should be objected to before he is examined in chief, if the ground of incompetency be then known, 4 Min. Ins. 695, and if the adver- sary is ignorant of the objection and it is brought to light in the course of the trial the witness's testi- mony will then be stricken out and the jury in- structed wholly to disregard it. Ibid. ,, The objection for incompetency cannot be made for the first time in the Court of Appeals. Simmons vs. 8im,mans, 33 Grat. 460. See also Fant vs. Miller, <£c., 17 Grat. 187, Beverly vs. Brooke, ok., 2 Leigh 425, Hord's adm'r vs. Golhert d als., 28 Grat. 49, 54, 55, 56, Statham d als. vs. Ferguson's adm'or, 25 Grat. 28, 38, Baxter vs. Moore, 5 Leigh 219. 455. Objection for irregularity in taking deposition. If there be any irregularity in taking the deposition, the objection to the deposition for such irregularity should be made in the court of chancery, by excep- tion. And then the opposite party will have an op- portunity of taking it over again, or removing the objection by proof. If no exception be taken, and the deposition be read at the hearing in the court of chancery, it cannot be objected to in the appellate court on account of any irregularity in taking it. Were this allowed it might have the effect of a sur- prise on the party relying upon the deposition. In Dickinson vs. Davis and others, 2 Leigh 401, before answer filed, leave was given to take a deposition in chief, whereas, as the law stood at that time, the court should only have awarded a commission to take the deposition de bene esse. No affidavit ap- peared in the record showing even that those grounds existed which authorized the commission de bene esse. EVIDENCE. 479 Nor did the record contain any certificate of the magistrates that the deponent was sworn. If these objections had been taken in the court of chancery by exception they would unquestionably have been fatal, unless the plaintiffs could have removed them by evidence. But the deposition having been read without any exception, the Court of Appeals was of opinion that the objection could not be looked into by the appellate court. See also opinion of Lyons, Pr., in Rowton vs. Bowton, 1 H. & M. 110, and of Roane, J., in S. C. 102, 2 Rob. Pr. (old) 337. 456. Manner in wMcJi witness should depose. Wit- nesses, says Lord Coke, ought to come to depose un- taught and without instructions. 4 Inst. 279. Lord Hardwicke suppressed a deposition because the at- torney for the party, before it was taken, had written down the whole of it in the exact form in which it was taken. Although it appeared that the witness had told the attorney the facts and circumstances mentioned in it, yet Lord Hardwicke thought it would be of dangerous tendency to permit the depo- sition to be read ; for the attorney had methodized and worded it, and it was therefore no more than an af&davit. In a deposition he considered it material to state the evidence as given by the witness. Amb. 252. With a vi^w of eflPectually excluding the mis- chief which would arise if the attorney or counsel were allowed to settle the deposition with the wit- ness, it has been determined that a witness shall not in any case go before the justices, notary or commis- sioner with a prepared deposition. Whenever such a proceeding has been disclosed, the court has always 480 SUITS IN EQUITY. thought it right, without attending to the particular circumstances, to suppress the deposition. Shaw vs. Lindsey, 15 Ves. 380. 457. Witness may he interviewed before examination. Parties or their counsel may orally or by writing, previous to the examination of a witness, direct his attention to the facts in regard to which it is in- tended to examine him ; and he may refresh his memory in regard to such facts by examining books or papers, and make memoranda from them or other- wise, especially of dates and amounts, and use such memoranda for the purpose of refreshing his memory at the time of giving his evidence. Fant vs. Miller, 17 G-rat. 187. 458. Interrogatories ought to he plain and fertinent. The witness is to be free to answer the sifting inter- rogatories that are framed. Underhill vs. Van Cort- landt, 2 John. Ch. R. 346. And these interrogatories ought to be simple and plain, pertinent to the matter in question, and in no sort captious, leading or directory. 4 Inst. 279, 2 Rob. Pr. (old) 336. 459. Who may not ask leading questions. On an ex- amination in chief a witness must not be asked lead- ing questions, Pow. on Evi. 376. This general rule is, however, subject to this exception, that if it ap- pear that the witness is hostile to the party calling him, or his evidence cannot be extracted by general questions as to his knowledge of material facts, the party may be permitted to put a leading question to the witness point blank as to such material fact and EVIDENCE. 481 require him to answer in the affirmative or negative. Ihid. 460. Who may ask leading questions. On cross- examination a witness may be asked leading ques- tions. Pow. on Ev. 381. And when a witness is manifestly reluctant and hostile to the interest of the party calling him he may be asked leading ques- tions. . See Moody vs. Rowell, 17 Pick. 498, Green. Ev. § 435. The evidence of a witness given in answer to leading questions, ought not on that ground to be suppressed, otherwise than by an order of the court made before the hearing of the cause, on motion or petition for that purpose, and founded on an exception endorsfed upon the deposition within a reasonable time from the return thereof, and founded, moreover, upon an objection taken at the time of the examination of the witness, if the party seeking to exclude the evidence, his agent or attorney was then present. McCandlish, adm'r, e&c. vs. Edhe d als., 3 Grat. 334. 461. Who may interrogate The justices or persons before whom the deposition is taken are not bound to permit any one to examine the witness except a party to the suit, or the counsel or agent of a party. Roane, J. in Rowton vs. Rowton, 1 H. & M. 102 ; 2 Rob. Pr. (old) 336. 462. Discrediting a witness. Where the object of testimony offered is to impeach a witness by proof of statements previously made inconsistent with his testimony on the trial ; or to discredit him, by proof of an attempt to fabricate testimony ; the foun- dation for such impeaching or discrediting testimony must be first laid by an examination of the witness sought to be impeached, with reference to such in- 61 482 SUITS IN EQUITY. consistent statements or improper conduct, and these rules are as applicable where a plaintiff is the wit- ness sought to be impeached as in other cases. Davis <& als. vs. Franke, 33 Grat. 413. A witness called to prove the handwriting of a paper offered for probat may be impeached by proof of what she has said about that paper at another time ; but neither her capacity to judge of the hand- writing nor her credit is to be impeached by what she may have said about some other paper. NuckoWs adrrCor vs. Jones, 8 Grat. 267. On the trial of an action of slander a defendant was permitted to discredit the testimony of two witnesses against him by evidence •of particular acts of hostility of these witnesses against him. Rixey vs. Bayse, 4 Leigh 330. In Charlton vs. Unis, 4 Grat. 58, it was held that though the previous statements of a witness whether oral or written might be introduced for the purpose of impeaching his credibility, yet that it ■cannot be expected that a witness should come prepared to prove the truth of every collateral statement he may have made on another occasion ; and where a question is put to a witness which is •collateral or irrelevant to the issue, his answer cannot be contra- dicted by the party who asked the question, but it is conclusive against him. See 16 Grat. 556, 1 Green. Ev. § 449. 463. The 67th rule of practice cited in section 432 ante has been amended as follows : December Term, 1854. Ordered that the 67th rule governing ■equity practice be so amended as to allow the presiding judge of any court exercising jurisdiction, either in term time or in vacation, to vest in the clerk of the said court general power to name com- missioners to take testimony in like manner that the court or judge thereof can now do by the said 67th rule. December Term, 1861. Ordered that the last paragraph in the ■67th rule in equity" be repealed, and the rule be amended as fol- lows: Either party may give notice to the other that he desires the °' The paragraph of 67th rule cited in section 433 ante. EVIDENCE. 483 -evidence to be adduced in the cause to be taken orally, and there- upon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be ^specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any ; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross- examination and re-examination, and which shall be conducted as near as may be in the mode now used in common law courts. The depositions taken upon such oral examination shall be taken down in writing by the examiner in the form of narrative, unless he de- termines the examination shall be by question and answer in special instances ; and when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such •of them as may attend ; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same ; and the examiner may, upon all examinations, state any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the •competency, materiality, or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, im- material, or irrelevent depositions, or parts of them, as may be just. The compulsory attendance of witnesses. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be pro- duced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors, to the opposite counsel or solicitors or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of witnesses before the examiner is con- cluded, the original deposition, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in the thirtieth section of act of Congress, September 24, 1789. Testimony may be taken on commission in the usual way by written interrogatories and cross interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. Decemler Term, 1869. Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th General Rule, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a 484 SUITS IN EQUITY. time thereafter within which the defendant shall take his evidence- in defense, and a time thereafter within which the complainant shall take his evidence in reply ; and no further evidence shall be taken in the cause unless by agreement of the parties, or by leave of court first obtained on motion for cause shown. 463«. Forms of depositions in the United States Oir- cuit Courts. The usual course pursued is the one pre- scribed by the sixty-seventh rule of practice. In conformity with that rule, after the cause is at issue^ a commission is obtained from the clerk of the court by both parties jointly, or severally by either, upon interrogatories filed in the clerk's office and ten days' notice thereof given to the adverse party to file cross interrogatories before the issuing of the commission. The frame of the interrogatories depends of course upon the facts sought to be elicited by the testi- mony : Interrogatories. In the United States Circuit Court for the Circuit and District of . A. B., a citizen, &c., complainant, 1 vs. > In equity. R. M. and N. 0. citizens, &c., defendants. J Interrogatories propounded by the complainant for the examination of X. X. and L. L., witnesses to be produced, sworn and examined in this cause in be- half of the complainant. 1st Interrogatory. Do you know the parties in this suit, or any or either of them, and how long have you known them or any or which of them? Declare the truth of the matters in this interroga- tory inquired after according to the best of your knowledge, re- membrance and belief? EVIDENCE. 485 ^d Interrogatory. Whether or no, Ac, (as the case may be)? Declare the truth of the several matters by this interrogatory in- quired after according to the best of your knowledge, remembrance and belief? Last Interrogatory?^ Do you know or can you set forth any other matter or thing which may be a benefit or advantage to the parties «t issue in this cause or either of them or thM may be material to the subject of this your examination on the matters in question in this cause? If yea, set forth the same fully and at large in your answer. S. L. & C, Counsel for A. B. Upon taking out a separate commission, the notice to the adverse party is as follows : Notice. To R. M. and N. 0.: Take notice that in the suit in equity depending in the Circuit <3ourt of the United States for the Circuit and Dis- trict of , wherein I am complainant and you are defend- ants, I have, in conformity with the 67th Rule of the Supreme Court of the United States prescribed for the use of the Circuit Courts of the United States, filed interrogatories to be propounded to X. X. and L. L., witnesses in my behalf, and that on the day of I shall apply at the clerk's office of the said court for a commission to take the depositions of said witnesses as the rule aforesaid prescribes; and, meanwhile^ you can appear in the ■clerk's office of the said court and file cross interrogatories to be propounded to the said witnesses if you think fit. Yours respectfully, A. B. If cross interrogatories be filed the clerk should enclose with the commission both the interrogatories in chief and the cross interrogatories to the officer who is to take the deposition. If no cross interroga- tories be filed, the commission will issue ex parte. The commissioner or commissioners are to be named by the court or by a judge thereof; or by the clerk ^The form of the last interrogatory is prescribed by the 7l8t Eule of Prac- tice of the Supreme Court. 486 SUITS IN EQUITY. when so authorized/' The following is the form of the commission in either case. Commission. The President of the United States of America, To "* Greeting : Know ye that in confidence of your prudence and fidelity and by these presents, you [or, any two or more of you] are invested with full power and authority to examine X. X. and L. L. on their corporal oath as witnesses in a suit depending in the Circuit Court. of the United States for the Circuit and District of , wherein A. B. is complainant and R. M. and N. 0. are defendants, on the part of the complainant upon the interrogatories annexed to this commission ; and therefore you are hereby com- manded that you [or any two or more of you] at certain, days and places to be appointed by you for that purpose,' do cause the said X. X. and L. L. to come before you, and then and there examine them on oath [upon the said interrogatories] and that you take such ex- amination and reduce the same to writing and return the same annexed to this writ, certified, under your seal, [or under the seals of two or more of you] unto the said Circuit Court before the judges thereof with all convenient speed. Witness — R. B. T,, Chief Justice of the Supreme Court of the United States in the said court this day of in the year of our Lord and of our independence the . P. M., Clerk. In pursuance of this commission, the depositions are taken and returned to the clerk certified and sealed as the commission directs. The following form of depositions will comply with the requirements of the 67th rule of practice. 69 See 67th Enle U. S. Supreme Court, sections 432, 433 and amendmenta found in see. 463. «» Commissioner or commissioners named by the court or a judge thereof, or by the clerk when the clerk has been authorized in pursuance of the amend- ment of the 67tti rule made December term 1854. See sec. 463 ante. EVIDENCE. 48T Form of depositions under 67 th rule of United States Supreme Court. . The depoeitiona of X. X. and L. L. duly taken before us, D. D. and E. E., two of the commissioners duly appointed in pursuance of the commission and notice hereto annexed, on the day of in the year , between the hours of 6 o'clock A. M. and 5 o'clock P. M. of that day, at the of&ce of in the city of , State of , to be read in evidence in behalf of A. B. plaintiff in a certain suit in equity depending in the Circuit Court of the United States for the Circuit and District of , wherein the said A. B. is complainant and R. M. and N. 0. are defendants; the interrogatories and cross interrogatories pro- pounded to the said witnesses, being the same enclosed and di- rected with the aforementioned commission to us the commissioners aforesaid. X. X., one of the said witnesses being duly cautioned and sworn to testify the whole truth and carefully examined," deposeth and saith as follows : In answer to the several interrogatories in chief: To the first vnierrogatory in chief, the witness says, &c., (here use the language of the witness). To the second interrogatory in chief, the witness says, &c., (as be- fore). [And so on to the end of the interrogatories in chief.] And in answer to the several cross interrogatories, the witness says: To the first cross interrogatory, the witness says that, &c., [using the language of the witness]. To the second cross interrogatory, the witness says that, &c., [as before and so on to the end]. And further the said witness saith not. X. X.«^ The witness L. L. not being yet examined the taking of these dep- ositions is adjourned and continued until to-morrow at the same place and between the same hours. D. D., Commissioner. E. E., Commissioner. 18— Office of , between the hours of 6 A. M. and 5 P. M. The witness L. L., being duly cautioned and sworn to testify the ^See Eev. Stat. U. S. sec. 864; p. 466 of this treatise. ^ The deposition is to be signed by the witness. See Rev. Stat. U. S., sec. 864; p. 466 of this treatise. 488 SUITS IN EQUITY. , whole truth and carefully examined deposeth and saith as follows: In answer to the several interrogatories in chief: [As in former deposition of X. X. to the end.] State of County of , to wit : We, D. D. and E. E., two of the commissioners to whom the an- nexed commission was directed in the suit in equity of A. B., plaintiff, against K. M. and N. 0., defendants, depending in the United States Circuit Court for the Circuit and District of , do hereby certify that the foregoing depositions of X. X. and L. L. were reduced to writing by the said D. D. one of us [or by the said witnesses] in our presence and signed by the said X. X. and L. L. and that the several proceedings therein mentioned were duly had and taken before us at the times and place mentioned therein, and we do further certify that we are not of counsel or attorneys for either of the parties to the said suit, nor are we interested in the event thereof. Witness our hands and seals [of office] this day of , 18-. D. D., Commissioner, E. E., Commissioner, Seal.] Seal.] Oral Interrogatories. The depositions by oral interrogatories under the sixty- seventh rule of practice, has been substituted by the oral examination mentioned in section 463, pp. 482, 483, ante. 464. The following is the FOKM 0¥ DEPOSITIONS IN THE VIRGINIA STATE COURTS. When Taken in the State of Virginia. Notice. To R. M. and N. 0. : Take notice that on the day of at the office of J. 0. S. in the city of R , between the hours of 9 o'clock A. M. EVIDENCE. 489 tind 6 o'clock P. M. of that day, I shall proceed to take the depo- sitions of X. X. and L. L. to be read in evidence in my behalf in the suit in equity depending in the Court of county, in which I am plaintiff and you are defendants ; and, if from any cause the taking of the said depositions be not commenced on that day ; or if commenced, if they be not completed on that day, the "taking of the said depositions will be adjourned and continued from time to time at the same place and between the same hours until they are completed. Respectfully, A. B. Affidavit of Service. ■County of , to-wit : This day personally appeared before me, the undersigned, a jus- tice of the peace for the county aforesaid, Q. Q. and made oath that he did on this day deliver true copies of the above notice to -E, M. and to N. 0. Given under my hand this day of , 18- Q. Q.,j.p. Caption of Depositions, <£c. The depositions of X. X. and L. L., taken before me, W. H. S., a notary public for the city, of R , pursuant to notice hereto annexed, at the office of J. 0. S. in the city of R ■ — on the day of , 18 — , between the hours of 9 o'clock A. M. and 6 o'clock P. M., to be read in evidence in behalf of the plain- tiff in a certain suit depending in the Court of county, wherein A. B. is plaintiff and R. M. and N. 0. are defen- dants. Present : A. J. J., Counsel for Plaintiff; B. M. M., Counsel for Defendants. X. X., being duly sworn, deposeth and saith as follows : 1st question by A. J. J., counsel for plaintiff. State, &c. ? Answer. I am not. 2d question hy same. Were you present at a conversation which occurred between the plaintiff A. B. and the defendants R. M. and N. 0. about the day of : if you were, state what occurred at that time and what was the agreement, if any, be- tween the parties? Answer. I was present; and [proceed to give the answer of the witness in his own words.] Bd questian. (as before, &c. to the end of the examination ia chief.) 62 490 SUITS IN EQUITY. Oross-examined. 1st cross-question hy B. M. M. counsel for defendants. [Record the questions and answers as before to the end of cross-examination.] He-examination. 1st question hy plaintiff's counsel on re-examination. [Record questions and answers as before.] And further this deponent saith not. X. X. L. L. being offered as a witness in behalf of the plaintiff, the defendant by counsel objected to his being examined as such and required that he should be sworn on his voir dire : and thereupon the said L. L. being sworn on his voir dire, answered as follows : Question 1st propounded on the voir dire to the witness L. L. by £. M. M. counsel for defendants. Are you or not the husband of one Jane L. and is she or not interested in the event of this suit ? Answer. I am her husband. I was not aware that she had any interest in this cause. 2d question by same. Did she or not prior to her marriage to you, convey by deed (which is now exhibited to you marked N. and is to be annexed to this question) the property embraced in this suit to the plaintiff A. B. warranting with general warranty the title to the same ; and is ahe or not directly interested in the result of the suit? Ansiuer. A paper purporting to be such a deed is handed me by yourself. It bears date so long ago, and the acknowledgment is so distant that if acknowledged or executed by my wife it must have been when she was under full age ; and I presume her cove- nant of warranty, if she made it, is not binding upon her. The plaintiff asked no questions on the voir dire, and the witness thereupon signed the same. L. L. And the defendants thereupon repeated their objections to the competency of the witness ; and protested against his testifying in this cause. And the witness, L. L., being then duly sworn in chief, deposes and says as follows : [But before the first question was propounded the counsel for the defendant objected again to the competency of the witness, because he is the husband of one Jane L., who is directly interested in the result of this suit ; and he desires his ob- jection to be here noted.] 1st question by A. J. J. counsel for plaintiff. State, if you know, &o. Answer. [Record it in the witness's words.] EVIDENCE. 491 2d question by same. Did you not hear the defendants state that, &c. Exception. The defendant's counsel excepts to this question as a leading question. Answer. [Record the answer of witness.] 3d question by same. [Record question and answers and so on as in the deposition of X. X., to the end of examination in chief.] Oross-examination, And the defendants, by counsel, before proceeding to cross- examine the witness, renews his objection to the competency of the witness; and not waiving but expressly relying on his said objec- tion now cross-examines the witness. 1st cross- question by counsel for defendants. [Record questions and answers as in X. X.'s deposition.] And further this deponent saith not. L. L. Certificate of notary at conclusion of deposition. State of Virginia, City of Richmond, to-wit : I, W. H. S., a notary public for the City of Richmond in the State of Virginia do hereby certify that the foregoing depositions of X. X. and L. L., were duly taken, sworn to and subscribed be- fore me at the place and time mentioned therein and in the cap- tion thereto, pursuant to the annexed notice. In witness whereof, I have hereto set my hand and official notarial seal on this day of 18 — at the City of Richmond aforesaid. W. H. S., n. p. [Notarial Seal.] Time employed in taking these depositions, 3 hours. W. H. S. Depositions taken outside the State to be used in the Virginia State Courts. Commission. The Commonwealth of Virginia to George B. M, a commissioner of deeds &c. for the State of Virginia residing in the City and State of New York, Greeting : Know ye, that trusting to your fidelity and provident circum- 492 SUITS IN EQUITY. spection in diligently examining X. X. and L. L. witnesses in be- half of A. B, in a suit depending in our Circuit Court for the county of , wherein the said A. B. is plaintiff and E. M. and N. 0. are defendants, we request and empower you that on such day and at such place as you shall appoint, you call and cause to come the witnesses aforesaid before you and them dili- gently examine on the Holy Evangelists of Almighty God and their examination into the said court distinctly and plainly, with- out delay, you send and certify enclosed, returning also this com- mission. ' Witness P. M. clerk of our said court at the courthouse of said county of on the day of 18 — , and in the year of the Independence of the United States of America. P. M., Clerk. Notice. To E. M. and N. 0. : Take notice that on the day of at the office of W. S. E., number — on Broadway, City of New York, between the hours of 9.o'clock A. M. and 6 o'clock P. M. (as in the notice on pp. 488, 489, to the end). Eesp'y, A. B. Affidavit of service. As on p. 489 ante. Caption of Depositions. Depositions of X. X. and L. L. witnesses taken before me J. A. B. a coinmissioner of deeds, &c., for the State of Virginia in and for the City of New York in the State of New York oil the day of and the other days hereinafter mentioned by virtue ■of the annexed commission and in pursuance of the annexed no- tice, at the office of W. L. E. number , Broadway, in the said City and State of New York, between the hours of 9 o'clock A. M. and 6 o'clock P. M. to be read in evidence in behalf of the plaintiff in a certain suit in equity depending in the court of county. State of Virginia, in which A. B. is plaintiff and R. M. and N. 0. are defendants. Present: R. R. counsel for plaintiff, P. 0. counsel for defendants. X. X. the witness, being' first duly sworn, deposeth and saith as follows : Question 1 by plaintiff's counsel. (State it). Answer. [Record the answer in witness's words.] Question 2. (As before on pp. 490, 491 to the end.) And further this deponent saith not. X. X. EVIDENCE. 493^ L. L. the witness, being first duly sworn, deposeth and saith as follows : [Questions and answers recorded as in X. X.'s deposition.] And further this deponent saith not. L. L. Oertificate. State of New York, City of New York, ss : I, George B. M., a commissioner of deeds, &c., for the State of Virginia in and for the City of New York in the State of New York do hereby certify that the witnesses whose depositions are as above were duly sworn by me at the times and place mentioned in the said depositions and that the said depositions were duly taken, reduced to writing, and signed by the witnesses respectively before- me at the place and times therein mentioned pursuant to the an- nexed notice and commission. In witness whereof, I have here- unto set my hand and affixed my official seal at aforesaid this day 18 — . Geo. B. M., [Official Seal.] Commissioner of deeds for Virginia. PRACTICAL NOTES. Depositions taken in the State of Virginia, without any commis- sion, before any justice, notary or commissioner in chancery. Out- side the State, a commission necessary. Eeasonable notice to the adverse party must be given. How commission obtained, see sec. 438, p. 469, and sec. 444, p. 471 ante. Exceptions to any questions or answers should be noted at the time when made. Each witness to sign his deposition at its con- clusion; but see section 437. Adjournments from day to day if so stated in the notice ; or from time to time if so stated in the notice ; the adjournments to be noted by the officer as well as the recom- mencements of taking the depositions. If adjournment by consent of the parties, the fact to be noted. Any papers or writings referred to by witnesses or copies thereof to be annexed to the depositions and referred to by such marks or designations as to identify them. If the officer or person who takes a deposition beyond the State has no official seal (unless he take the deposition as a justice of the peace in which case it is not required) the genuineness of his signa- ture should be authenticated by some officer of the same State or country under his official seal. When the depositions have been duly certified the officer taking 494 SUITS IN EQUITY. them should seal them up securely, and direct them to the clerk of the court where the suit is pending and transmit them hy mail or otherwise : — endorsing the package as follows : A.^B.,- Plt'ff. I ^^ ^.j^g Qjg^^ ^^ ^j^g Q^^^^ ^^ ^j^g E.M.&N.O.,Defts.J bounty of . The depositions thus sealed and endorsed may be placed in an outer envelope and sent to the care of any person interested in their preservation. The depositions, unless carried to the clerk by the officer taking them, are to be sent to him sealed up; and the clerk endorses the fact that they were so returned to him. A witness ought not to write his deposition or his answer before- hand ; nor ought they to be written for him beforehand by counsel or any other person ; but he ought to answer the questions orally or from memory as they are propounded to him. Fant vs. Miller, dc, 17 Grat. 187. See section 456. 465, Demurrer to interrogatories. The treatises on the practice in the English equity courts speak of a demurrer to interrogatories i. e. a tender of reasons by a witness for not answering any question pro- pounded to him, 2 Dan. Ch, Pr. (old) 328, Seton on Decrees 1061, 1235 ; and it is said that such demurrers are set down to be argued as demurrers to a bill. Seton on Decrees 1235. While resembling demurrers, these exceptions are not strictly such. The witness by demurring admits nothing ; and he should state in his demurrer why he objects to answering. By demurring, he raises the question for adjudication whether he should be com- pelled to answer.. He may object in this way to answering be- cause to do so would subject him to pains and penalties, and for any other sufficient reason. 466. Inspection in aid of proof. Courts often order that an infant be produced in court for satisfactory proof of his existence, age and discretion ; or, that an original document or book be produced to be satisfied of its genuineness and integrity, or of its EVIBENCE. 495 age and precise state and character, Grres. Eq. Ev. 461 ; and where the subject is immovable, the court will order the party in possession to permit an in- spection by witnesses. Kynaston vs. E. Ind. Co., 3 Swanst. 249; and, in patent causes, often the ma- chine or instrument itself or -an accurate working model is directed to be brought into court for inspec- tion at the hearing. 3 Green. Ev. § 329. 467. Farther evidence. Courts sometimes require farther evidence to be produced, Hood vs. Pimm, 4 Sim. 101, 6 Cond. Eng. Ch. R. 58 ; and, sometimes, this farther evidence is introduced by the examina- tion of witnesses viva voce at the hearing. See 3 Green. Ev §§ 330, 331 ; and, upon special order, the court permits the parties to read at the hearing any answers, depositions, or other proceedings, taken in another cause, and this without requiring a founda- tion first to be laid, by proving the bill and answer in the cause in which the depositions or other sub- sequent proceedings were taken. 3 Green. Ev. §341. It is sufficient if the point or matter in issue were the same in both causes and the party against whom the evidence is offered, or those under whom he claims, had full power to cross-examine the witnesses ; it is not necessary that the parties in both causes should be identically the same. See Roberts vs. Anderson, 3 John. Ch. R. 371, 376 ; Harrington vs. Harrington, 2 How. 701. 468. Depositions in a cross cause. The English au- thorities say, that it is requisite that the witnesses be examined before publication in the original cause. has passed, otherwise the depositions are liable to be suppressed, Pascall vs. Scott, 12 Sim. 550 ; but if the 496 SUITS IN EQUITY. point in issue in both causes is the same and the- depositions in the cross cause were taken before either party had examined witnesses in the original cause, they may be read in the latter cause. Wilford vs. £easlei/, 3 Atk. 501, 2 Dan. Ch. Pr. (Perk.) 1658, and in a case before Chancellor Kent, Under kill vs. Van Cort- landt, 2 John Ch. R. 339, the judge, while permitting depositions taken in the original cause to be read in a cross cause, permitted only such facts to be read as were pertinent to the issue in the original cause. The writer is not aware that these rules prevail in the Virginia State Courts. Whether they would govern the practice in the United States Courts depends upon the effect given to the 90th rule of practice of the Supreme Court. 469 Suppressing depositions. Sometimes, it is ex- pedient to move to suppress depositions or parts of them before the cause comes on to be heard ; thus labor and expense are saved which would otherwise be incurred in preparing the cause for a hearing, Gres. Eq. Ev. 147 ; and where special exceptions have been taken to parts of. the depositions or to particular questions and answers, the rule is as stated in section 476 post. 470. Scandalous matter may be thus suppressed. Grres. Eq. Ev. 147. There may be latent objections to the depositions which may be brought to the notice of the court on affidavits, and when the objection ap- pears on Ihe face of the depositions it may be better to have the point determined before the hearing, on application to the court to suppress them. Ihid. EVIDENCE. 497 471. It has been questioned whether depositions would be referred to a master for impertinence alone. Lord Eldon refused, alleging the risk of expunging matter which might eventually prove to be material. Gres. Eq. Ev. 149. 472. The strict rules of the English courts leading to the suppression of depositions are set forth in Mr. Gresley's work on Equity Evidence, 1st Am. edit, pp. 149, 150; edit. 1848, pp. 220, 221. 473. Refusal to suppress for irregularity. A wit- ness was examined inadvertently two days after the publication had passed and the other party cross- examined him ; the court would not suppress his evidence. Hammond vs. , 1 Dick. 60. Where a witness died before cross-examination, the cross- interrogatories which were about to have been put to him not going to any point to which he had been examined in chief nor to his credit, the court refused to suppress his deposition. O'Callaghan vs. Murphy, '1 Sch. & Lef. 158. 474. The refusal of a witness (not a party) to be cross-examined is no reason for suppressing his dep- osition, but the adverse party must at the time en- force such right of cross-examination as he has, Cour- tenay vs Hoskins, 2 Russ. 253, But if the witness should secrete himself to avoid a cross-examination, there the court would, or at least might, suppress the direct examination. Flowerday vs. Collett, 1 Dick. R. 288. If a party to the cause refuse to testify, the rule laid down in sec. 410, p. 448 ante, will govern m 498 SUITS IN EQUITY. 475. It is by no means certain that where the di- rect examination has been completed and the other side is deprived by the death of the witness or by other inevitable accident, of the opportunity to cross- examine, that the direct examination will be sup- pressed. Mr. Justice Story in Gass vs. Stinson, 3 Sumn. 98, said, that the general doctrine so far from being established in that manner appeared strongly the other way. He cited Arundel vs. Arundel, 1 Chan. R. 90; O'Callaghan vs. Murphy, 2 Sch. & Lef. 168, and Nolan vs. Shannon, 1 Molloy 157, in which last case the Lord Chancellor held, that the direct •examination of a witness might be read at the hear- ing, when a cross-examination had been prevented by his illness and death. 476. In Cojieland vs. Stanton, 1 Ves 415, the de- fendant examined a witness after publication and on discovering the irregularity he obtained an order to re-examine the witness. The witness died before the re-examination. Lord Parker, C. ordered that the defendant might make use of the depositions sworn to by the witness, his re-examination having been prevented by the act of God. 477. Exceptions to depositions. Objections to the depositions in the United States Courts and the Vir- ginia State Courts are usually taken by exceptions stating the reasons of the objections. These should be made always before the hearing of the cause ; and in certain cases, unless taken at once, the benefit of taking them is considered as waived. See cases cited in sections 454, 465 ante. And the excep- EVIDENCE. 499 tions must, after they are taken, be brought to the notice of the court for the purpose of obtaining its judgment thereon ; if not, an appellate court will not consider them. Fantvs. Miller, c&c, 17 Grat. 187. 478. Be- examination of witnesses. The examina- tion of the witness should be completed, as much as possible, una actu, and whenever it can be accom- plished, no opportunity should be afforded, after the ■deposition is once completed, of tampering with him and inducing him to retract or contradict or explain away what he has stated in his first examination upon a second ; but notwithstanding the unwillingness of the courts of equity to allow a second examination •of the same witness, there are cases in which, if jus- tice requires a second examination, an order will be made to permit it. Dan. Ch. Pr. (Perk ) 970. See Willan vs. Willan, 19 Ves. 590 ; Rowley vs. Adams, 1 M. & K. 645 ; Whitaker vs. Wright, Z Hare 41*2 ; England vs. Downs, 6 Beav. 281 ; Remsen vs. Remsen, 2 John. Ch. R. 501. The order of the court to per- mit the re-examination of the witness is necessary : the re-examination is against the ordinary practice of the court and is only granted under peculiar cir- cumstances See Fhillips vs. Thompson, 1 John. Ch. R. 140 ; Beach vs, Fulton Bank, 3 Wend. 573.*^ ^ Ee-examinatioa permitted because depositions were suppressed for the ■interrogatories being leading, or for irregularity, or where it was discovered that a proper release to make the witness competent at the time he gave his deposition had not been executed. Wood vs. Mann, 2 Sumn. 316 ; see ■Spenee vs. Allen, Prec. in Ch. 493, 1 Eq. Ca. Abr. 232 ; Healey vs. Jagger, 3 Sim. 494 ; Shaw vs. Lindliy, 15 Ves. 380 ; Atty. Oen. vs. Nethercote, ■9 Sim. 311. A witness incompetent by reason o; interest may be re-ex- amined after his competency is restored. Haddix vs. Haddix, 5 Litt. (Ky.) 500 SUITS IN EQUITY. 479. Where the reason of the rule for re-examina~ tion of the witness only by leave of the court did not apply, e. g. a witness who had been examined to prove certain exhibits at the hearing called to prove other exhibits before the master, it was held that he could do so without a special order for re-ex- amination. Courtenay vs. Hoskins, 2 Russ. 253. NOTE TO SEC. 443, P. 471. The language of Judge Staples in Summers vs. Dame d als., 31 Grat. 805 as cited in section 443 may need modification. In Rich- ardson vs. Duble d als., 33 Grat. 730, the statute Code 1873, chap.. 172, sec. 36, which declares that, "in a suit in equity, a deposition may be read if returned before the hearing of the cause, or though after an interlocutory decree, if it be as to a matter not thereby adjudged, and be returned before a final decree" was before the court for its interpretation. The court held that under this statute,, when there has been an interlocutory decree, a deposition taken thereafter cannot be read as to any matter thereby adjudicated, unless indeed as the foundation for a motion or petition to rehear the cause ; that if no interlocutory decree has been rendered or though one has been rendered a deposition taken and returned be- fore a final hearing as to any matter not adjudicated may be read ;. but the right is not an absolute one. Judge Staples, pronouncing the opinion of the court, said, that " in Summers vs. Darne, 31 Grat. 791, a petition for a rehearing was filed, founded upon depo- sitions previously taken. It was objected that the depositions could 202. See other cases in which the court refused to permit a re-examination, Noel vs. Fitzgerald, 1 Hogan 135 ; Oray vs. Murray, 4 John. Ch. E. 412 }. Malloch vs. Bmith, 4 John. Ch. E. 649 ; Sterry vs. Arden, 1 John. Ch. E. 62; Newman vs. Kendall, 2 A. K. M. 236. A re-examiuation was permitted to prove before the master some fact omitted to be proved upon the original deposition : whether the permission should have been accompanied by the direction that the witness should not be examined upon any points with re- spect to which he had been previously examined is a matter upon which there- is difference of opinion ; for such direction, see Browning vs. Ba/rtor>,, 2 Dick. 508 ; cited as Browning vs. Barker, in 1 Bro. C. C. 388 ; against such direc- tion, see Vaughn vs. Lloyd, 1 Cox 312 ; Dan. Ch. Pr. (Perk.) 1181. Sir Lance- lot Shadwell, Vice Oh., in Hood vs. Pimm, 4 Sim. 101, 6 Eng. Cond. Ch., col- lects many of the cases in which a re-examination was permitted. See also. 3 Green. Evi. § 346 and note. DECREES. 501 not be read ; but this court held that there is no rule of law pro- hibiting a party from taking his depositions even after an interlocu- tory decree, merely as a foundation for a motion or petition to re- hear the decree. The depositions, of course, were only admitted in view and in connection with such petition showing a proper case for a rehearing." CHAPTER XL Of Decrees. 480. It is the practice in England when the cause is set down for hearing for the plaintiff to give no- tice to the adverse party of the day appointed for the hearing. This is done by a writ called a subpoena to hear judgment, Dan. Ch. Pr. (Perk.) 985. This practice is substituted here by the entry of the cause upon the court docket, which is called at every -term of the court. Ck)de 1873, ch. 173, § 2. 481. The mode of hearing causes in equity is simi- lar to that adopted in the courts of common law." ^ The hearing Bhould be had at the first term succeeding the maturing of the cause. Code 1873, ch. 173, I 2. If the court refuse to try any cause ■or continue it without good cause shown, the party asking for a trial may have his application spread upon the record with a statement of the facts relative thereto. Code 1873, oh. 173, § 3. The former statute provided that upon such statement, it shall be lawful for the Court of Appeals on the application of the party injured to award a mandamus and compel a trial of the cause upon the proofs as they existed at the time when it was erroneously continued or the trial was improperly refused. Supp. Kev. Code, p. 133, sec. 14. This statute came under review in exparte Eichardson, 3 Leigh 343 ; and the court there held that the statute authorized a mandamus to compel the courts of chancery to hear causes at the first term at which they were pre- pared for hearing when no special cause appeared for the refusal of the court to hear them, but the statute did not authorize a mandamus to compel the hearing of a cause which the court of chancery, in its discretion, for reasons satisfactory to it, thought proper to continue. 502 SUITS IN EQUITY. The party plaintiff, on the main hearing, or, in case' of a motion, the party making the motion, usually opens the argument, to this there is a reply by the- opposite party, and then the argument is closed by the former. For the convenience of the court, argu- ments in equity causes are usually in writing in- stead of being spoken ; but there is no positive rule on the subject. 482. Causes to he heard together with others touch- ing the same matters. Where there are several suits in the same court between different parties claiming the same property they should generally be heard together to avoid decrees that may clash with each other. So, in the case of a cross-bill, as a general rule, both causes should be heard together that one decree may settle the whole dispute. But in this matter the court has a discretionary power which may be exercised as circumstances shall require for the attainment of justice; and when the plaintiff on a cross-bill has produced delay in preparing his suit for a hearing, that will be just cause for proceeding to hear the original bill. On an appeal from the decree pronounced on the original bill, if it be ob- jected in the' appellate court that the suit ought to have been suspended, and the papers in the two causes are not before the appellate court, that court will presume that the court below exercised its dis- cretion properly. McConnico vs. Moseley, 4 Call 390. 483. &u,it to he 'properly matured. In a suit against several defendants, if a decree be pronounced against one before the others have answered or been served DECREES. 503 with process or had an order of publication executed against them, an appellate court will frequently re- verse the decree for this cause, although it may think that defendant liable to the plaintiff. Purcell vs. Mad dux, 3 Munf. 79. In Bland va. Wyatt, 1 H. & M. 543, the bill was to recover money from a guardian. It was filed against the sheriff to whom the guardian's estate was committed, the heirs of the guardian, a surviving surety in the guardian's bond, and the administrator of a deceased surety. The cause was heard when some of the heirs and the surviving surety had not been served with process ; and upon such hearing a decree was rendered against the administrator of the deceased surety, and the bill dismissed as to the other defend- ants. It was decided that there Was error in proceeding to a hear- ing of the cause before all the defendants had been properly proceeded against and in prematurely dismissing the bill as to some of the defendants. And in a suit against several defendants, if the plaintiff have it set for hearing as to some before it is ready as to others, and at the hearing the bill be dismissed as to all such a dismission will in many cases be error for which the decree may be reversed. In Senderson, do. vs. Andersons ex'ix, 4 Munf. 435, a suit against an executrix and her children, three of the children answered. There was nothing to show that the cause was ready as to the executrix and the other children. The plaintiff had the cause set for hear- ing as to the defendants who had answered. The chancellor dis- missed the bill against all the defendants. The appellate court reversed the decree of the chancellor and remanded the cause to be proceeded in against all the defendants. In Key vs. Sord, do., 4 Munf. 485, the case was set for hearing on the plaintiff's motion and when it came on to be heard the chancellor dismissed the bill. On appeal, the court held that, as the case then appeared, the plaintiff had a claim against some of the defendants; but as to those defendants the cause had not been matured for a hearing. The decree was reversed and the cause remanded for the purpose of having the same matured as to those parties and to be other- wise legally proceeded in. In Boyd, c&c. vs. Hamilton's heirs, 6 Munf. 462, the plaintiff claimed that he was entitled jointly with one defendant as co-devisee to land held by another defendant; and before the defendant who was jointly interested with the plaintiff had been brought before the court, the bill was dismissed as to that defendant against whom the claim was made. The court of appeals determined that this was erroneous, because the decree 504 SUITS IN EQUITY. would not be binding on the defendant, who was a co-devisee with the plaintiff, until that defpndant was before the court Yet where a bill was brought by a legatee against the executor and the other legatees, for the purpose of surcharging the execu- tor's account, and the cause was set down for hearing as to the ex- ecutor by directum of the plaintiff, before the process against the legatees had been served, and upon its being heard on the merits the bill was dismissed, it was held that the plaintiff could not ob- ject in an appellate court that the decree of the chancellor was premature. Wyllie, (60. vs. Venahle's ex or, 4l Munf. 369, Jackson's assignees vs. Outright, do., 5 Munf. 308. In Robinson's ex'ors vs. Day, 5 Grat. 55, the cause was ready for a decision as to the substantial parties at a regular term of tlie court. At a following intermediate term, the plaintiff amends his bill to make a formal party, who comes in and files his answer at the same term, and consents that the cause may come on to be V heard. The court may hear the cause at the intermediate term, though it is objected to by the substantial defendant, as to whom it was ready at the preceding regular term. 484 After the cause is heard, the court proceeds to adjudicate the rights of ihe parties, and this adjudication is called its decree or order, A distinction has been drawn in the books between decrees, strictly so called, and interlocutory orders, the latter having refer- ence to proceedings prior to the full hearing of the cause upon the merits, the former containing the adjudication of the court after all preliminary matters have been adjusted and a full hearing is had. Though accounts are directed the decree is still properly termed a decree, because the right of the plaintiff to call upon the defen- dant to account, which is often disputed, is determined by it ; but a preliminary direction at the hearing for an inquiry only is not properly a decree, but a decretal order. Morwood vs. Schmedes, 12 Ves. 315. 485. Decrees have been defined as the sentence or order of the court pronounced on hearing and un- derstanding all the points in issue and determining the right of the parties to the suit according to equity and good conscience. 2 Dan. Cli. Pr. (old) 631. DECREES. 505 486. Decrees interlocutory and final. Decrees are ■either interlocutory or final. An interlocutory de- cree is when the consideration of the particular ques- tion to be determined, or of further, directions gene- rally, is reserved until the final hearing. 2 Dan Ch. Pr. (old) 631. A decree is final when it fully de- cides and disposes of the whole merits of the case and reserves no farther question or directions for the future j udgment of the court so that it will not be necessary to brmg the cause again before the court for another decision. Hoi. Int. Eq. 310. It is not absolutely necessary to the finality of a decree that it should make such a disposition of every matter in the cause as that it may at once be removed from the docket. A decree disposing of the whole subject, deciding all matters in controversy, ascertain- ing the rights of all parties and awarding the costs though it ap- point a commissioner to sell part of the subject and account for ^nd pay the proceeds to the parties, with liberty for them to apply to the court to add other or substitute new commissioners, or for a partition of the subject to be sold in kind, is a final decree. ■Harvey vs. Branson, 1 Leigh 108. In Thorntons vs. Fitzhugh, 4 Leigh 209, Judge Oarr said, "Where anything is reserved by the court for future adjudication, in order to settle the matters in controversy, the decree is inter- locutory; but where, upon the hearing, all these matters are set- tled by the decree, such decree is final, though much may remain to be done, before it can be completely carried into execution, and though to eflfectuate such execution, the cause is retained, and leave given the parties to apply for the future aid of the court." See Sheppard's ex or vs. 8larke, dc, 3 Munf. 29, Royall vs. Johnson, 1 Eand. 427, cases in which decrees were held final. In Thorntons vs. Fitzhugh, 4 Leigh 209, there was difference of opinion as to the finality of the decree; two of the judges, Carr and Brooke, holding it to be final, and Tucker P. held it to be interlocutory. In Cache vs. Gilpin, 1 Rob. R. 20, Judge Baldwin investigated the subject very fully and after adverting to the prior cases before the Court of Appeals, held the decree to be interlocutory. The criterion he applied is this: When the further action of the court in the cause (contrasting it with the action of the court beyond the ■cause) is necessary to give completely the relief contemplated by the court there the decree is interlocutory. 1 Hob. R. p. 29, 36. 64 506 SUITS IN EQUITY. Allen J. and Cabell P. concurred with Baldwin. Judge Brooke- dissented. See Young vs. Shipwith, 2 Wash. 300. Grymes vs. Pendleton, 1 Call 54, McCall vs. Peachy, 1 Call 55, Bowyer vs. Lewis, 1 H. & M. 553, Templeman vs. Steptoe, 1 Munf. 339, Aldridge, do. vs. Oiles, 3 H. & M. 136, Machey vs. Bell, 2 Mun. 523. Goodwin vs. Miller, 2 Munf. 42, ^iZ^'s ea;'or vs. i^oa;'s adm'or, 10 Leigh 5^, Fairfax vs. Muse's exors, 2 H. & M. 558, Ellzey vs. Lanes ex'ix,. 2 H. & M. 592, Allen vs. Belches. 2 H. & M. 595, in all of which cases the decree was held interlocutory See 1 Rob. R. 35, 36. Other cases on the subject of final and interlocutory decrees in the Virginia State Courts and in the United States Circuit Courts will be found in the subjoined note.*^ ^ Caaes on interlocutory and final decrees in the ViKBiNiA State CouEia: When final. Thorntons ■vs. Mtzhugh, 4 Leigh 209; Davenport vs. Mason, 2 Wash. 200 (a decree disBolving an injunction and decreeing complainant to pay coats) ; Harvey vs. Branson, 1 Leigh 108 ; Vanmeter vs. Vanmeter, 3 Grat. 142, and Tennani's heirs va. Pattons, 6 Leigh 196 (decrees disposing of the whole cause and leaving nothing to be done) ; Buff vs. StarUe, 3 Grat. 129 (decree settling all matters in dispute omitting to decree upon a claim set' np in the bill which after circumstances rendered unimportant) ; Fleming & als. vs. Boiling & als., 8 Grat. 292; Rogers vs. Strother & als., 27 Grat. 417; Nelson vs. Jennings & als., 2 P. & H. 369. Decree final as to manumission but not as to profits, Paup, adrn'or vs. Mingo, 4 Leigh 163. When interlocutory. Fairfax vs. Muse, 2 H. & M. 557, and Allen vs. Belches, 2 H. & M. 595 (decrees foreclosing equity of redemption and ap- pointing commissioners to make sale) ; Aldridge & als. vs. Gi'es, 3 H. & M. 136 (decree directing that unless defendants answer the bill before a certain day, the tract of land mentioned in the bill should be surveyed and part allotted to the complainant and that the defendant should execute to the com- plainant a-legal conveyance of such part and pay the costs of suit) ; Temple- man vs. Steptoe, 1 Munf. 339 (a decree dismissing so much of a bill as claimed one of two separate subjects in controversy, and as to the other determined also the rights of the parties, but directed an account to be taken not final as to parties retained in court) ; Machey vs. Bell, 2 Munf. 523 (seems to be directly antagonistic to Thorntons vs. Fltzhugh, 4 Leigh 209) ; Chapman vs. Armistead, 4 Munf. 382; SilVs ex'or vs. Fox's adm'or, 10 Leigh 587; Dun- bar's ex'ors vs. Woodcock's ex'ors, 10 Leigh 629 ; Young vs. Skipwith, 2 Wash. 300 ; Ambrouse's heirs vs. Keller, 22 Grat. 769 ; Smith & als. vs. Blackwell & als., 31 Grat. 291 ; Cocke vs. Oilpin, 1 Eob. 20 ; Goodwin vs. Mxller, 2 Munf. 42 (a decree directing an executor for payment of debts to sell the lands of his testator and report his proceedings) ; Fretwell vs. Wayt & als., 1 Ban. 415- DECREES. 507 487. It rarely happens that a first decree can be final and conclude the cause. Thus, if any matter is strongly controverted, the court is so sensible of the deficiency of trial by written evidence that it will usually direct the matter to be tried by a jury. This Whether interlocutory or final. Alexander vs. Coleman & wife, 6 Mnnf. 328. Mnal as to some parties, interlocutory as to others. Royall's adm'ors vs. Johnson & ah., 1 Rand, 421. A decree not partly final and partly interlocutory, in the same cause, for and against the same parties who remain in court. Ryan's adm'or vs. McLeod & als., 32 Qrat. 36V. Cases on interlocutory and final decrees in United States Courts : The decrees were declared in the following oases : Interlocutory. Young vs. Orundy/Q Cran. 51 (decree dissolving an in- junction) ; Lee vs. Kelly, 15 Pet. 213 ; Toung vs. Smith, 15 Pet. 287 ; Brown vs. Swann, 9 Pet. 1 ; Bernard vs. Gibson, 7 How. 650 ; Pulliam vs. Christian, 6 How. 209 ; Perkins vs. Foumiquet, 6 How. 206 ; The Palmyra, 10 Wheat. 502; Chace vs. Vasquez, 11 Wheat. 429; Ayres vs. Carver, 17 How. 591 (dismissing a cross bill. See 5 Otto 225) ; Beehe & als. vs. Russell, 19 How. 283; TJ. S. vs. Fossatt, 21 How. 445; Hamilton vs. Stainthorp, 2 Wal. 106 ; Moore vs. Bobbins, 18 Wal. 588 ; Railroad Co. vs. Swasey. 23 Wal. 405 ; Butterfield vs. Usher, 1 Otto 246 ; and Oreen vs. Fish, 13 Otto 518. The decrees were declared in the following cases ; Final. Ray vs. Law, 3 Cran. 179, (a decree for a sale under a mortgage) ; Forgay vs. Conrad, 6 How. 201, (see Thomson vs. Dean, 7 Wal. 346) ; West vs. Smith, 8 How. 402 ; Wabash & Erie Canal vs. Beers, 1 Black 54 ; Mil- waukie & M. R. R. Co., dee. vs. Soutter, 2 Wal. 440; Bronsen vs. R. R. Co., 2 Black 524; Withtnbury vs. TJ. S., 5 Wal. 819; Sampson vs. Welsh, 24 How. 207 ; French vs. Shoemaker, 12 Wal. 86 ; Stovall vs. Banks, 10 Wal. 583 ; Crosby vs. Buchanan, 23 Wal. 420 ; Railroad Co. vs. Bradley, 7 Wal. 575 ; Sage vs. Railroad Co., 6 Otto 712 ; and Sinckley vs. Gilliam & als., 4 Otto 467. See Exparte Railroad Co., 5 Otto 221. Final decree defined. Beebe <& als. vs. Russell, 19 How. 283, and Thomson vs. Dean, 7 Wal. 342. [In the last-named case the following cases are cited : Whiting vs. B'k XI. S., 13 Pet. 6 ; Michaud vs. Girod, 4 How. 505 ; Orchard vs. Hughes, 1 Wal. 657 ; Milwaukie this decree should not be allowed and be effectual within the time so specified. Exceptions to the Report oj Commissioner William W. by Richard R. In the Circuit Court of the county of Hanover. P.'s guardian vs. P. & als. Exceptions of Richard E. to the report of Commissioner William W^ 1. The said Richard R. excepts to the said report of sale to him and objects to its confirmation by the court, because in the acres bid for by him, the said Richard R., are embraced 100 acres of land as to which the title is imperfect if not a wholly bad title. The said 100' acres of land were in 18 — assessed to Junius P., the former husband of Agnes P., the mother of the plaintiff, from whom he is asserted to have inherited the real estate in the proceedings mentioned ; and the taxes on the said 100 acres for that year amounted to 63 cents. The same not being paid, the said 100 acres were sold by the sheriff of this county on the day of , and became the purchaser at such sale for delinquent taxes; and on the day of , he obtained a deed from the clerk of the County Court of Hanover for the said land. Copies of said deed and of the return of the land as delinquent and of the sheriff's receipt are herewith filed and prayed to- be taken as part of this exception. 2. The said Richard R. excepts to the said report of sale and objects to its confirmation, because the said commissioner did not comply with the order of court in making said sale. The sale was ordered to be made on the premises ; but when the commissioner made sale, he was nearly four hundred yards distant from any part of the premises purchased by the said Richard R. For this defect in the sale, the same should be set aside. See Talley & als. vs. Starke's adm'x & als., & Grat. 339. 3. The said Richard R. excepts to the said report of sale and objects to its confirmation, because the proceedings in the said suit did not authorize a decree for sale. To a proper decree for the sale of the lands of infants all the answers in the suit should have been sworn to ; and the answers of two of the adult defendants in the suit and , were not sworn to 18 — July . RiCHAsn R., by counsel. Answer and Return of Richard R, to Rule on him to show cause. The answer and return of Richard R. to the rule entered in the suit of P.'s guard'n vs. P. & als. in the Circuit Court of Hanover to- show cause, &c. DECBEES FOB SALE OF INFANTS' LANDS. 563- The said Bichard B. answers and says, that he intended no disrespect whatever to the mandate of the court in the said cause : That he at- tended the sale of Commissioner William W. and bid for the property knocked down to him in good faith : That it was announced at the sale, that, after the sale was made but before it was reported to the court, the purchasers should have time to examine the title and no purchaser would be required to comply with the terms of sale if the title was not a good one : That he employed a competent person to examine, into the title, and it was reported to him that as to 100 acres of his purchase there was a serious defect of title : That the said 100 acres were assessed in the year 18 — in the name of Junius P., the hus- band of Agnes P., who died seized of the said property, that the same was returned delinquent for taxes, that afterwards they were sold for delinquent taxes and became the purchaser ; and the said has since obtained a deed from the clerk of Hanover County Court and claims the said land thereunder. It is said that the said Junius P. had only a life estate, as tenant by the curtesy, and that he departed this life before the said year 18 — began ; while that may be true the taxes for that year 18 — on the said 100 acres should have been paid, but were not paid, by the said Mrs. Agnes P. though she was specially applied to by the deputy sheriff and requested to pay the same. See the afiBdavit of the deputy sheriff, Telemachus M., to that effect. Under these circumstances, the said Bichard B. does not regard the title to the said 100 acres as good. He bought the tract of acres as a whole ; and he does not believe he ought to be compelled to take any part of it. There are other objections to the title and the sale which he has embodied in his exceptions to the report ; and he prays to refer to the same as a part of this return and answer. The said Bichard B. prays that the said rule be discharged, and that he be relieved and dis- charged from all responsibility in reference to said alleged purchase. Bichard B. Affidavit should be made to it. Affidavits taken, on notice to Richard B., in answer to his return. BiCEAED B., Esq.: Dear Sir, — Take notice, that on the day of at the hour of — o'clock A. M. at the court-house of the county of Hanover, I will take the affidavit of Xenophon X., to be read as evidence on the rule against you to comply with your purchase made of Wm. W., commissioner, in P.'s guardian vs. P. & als., a suit depending in the Circuit Court of Hanover. Yours, &o., JAMES S., G'dn of P., plt'ff in said suit. Service acknowledged. BICHARD E. County of Hanover, Hanover Conrthouse, to wit : P.'s gd'n vs. P. & als. This day, personally appeared before me, the undersigned, a justice of tho= 564 SUITS IN EQUITY. peace for the county of Hanover, Xenophon X., and made oath that he was well acquainted with Junius P., that he departed this life in the.year 18 — , and that affiant helieves the said Junius P. had only a life estate as tenant by the curtesy in the IOC acres of land mentioned in the answer and return of Eichard E., and that the same expired before the year 18 — , at which it is said the 100 acres of land were assessed in the name of said F. and returned delinquent for taxes : this affidavit being taken in pursuance of notice hereto Annexed. Given under my hand, this day of , 18 — . A. W., j. p. Affidavit of Wm. W. as to Place of Sale. •County of Hanover, — Hanover C. H., to wit: P.'s guardian vs. P. & als. This day, personally appeared before me, the undersigned, a justice of the peace for the said county, William W., and made oath that he was the commis- sioner who made sale of the land decreed to be sold by the Hanover Circuit •Court in above named suit ; that when lot C. was sold, of which Eichard E. be- came the purchaser, he, the commissioner, and the crier who cried the pro- perty at auction, and the company gathered at the sale, including the said Eichard E., were standing on a corner of the tract of 646 acres, and though not immediately on the lot G. (part of said tract of 646 acres) they were, all ■of them, in full view of lot C. : this affidavit taken in pursuance of the no- tice hereto annexed. Witness my hand, this day of ^-^— 18 — . A. W., j, p. Affidavit in Behalf of Purchaser. 'County of Hanover, to wit : P.'s guardian vs. P. & als. This day, personally appeared before me, the undersigned, a justice of the peace for the county of Hanover, Telemachus M., and made oath that he was deputy sheriff for the county of Hanover for the year 18 — ; that he dis- tinctly remembers that during that year he had a number of tax bills against Mrs. Agnes P.. the mother of Eobert P., the infant defendant in this suit; that he applied to her for their payment, and Mrs. P. paid them ; that then affiant produced the tax bill on the 100 acres which affiant knows consti- -tuted a part of the — acres on which Mrs. P. was living then with her child Eobert and asked her to pay that; that she had only paid taxes in her own name on — acres and this tract of 100 acres was her property and she should_ pay the taxes on it. She looked at the bill and seeing tnat it was made out' in the name of and not in hers, she refused to pay it. The bill was returned "no effects. " Given under mv hand this day of 18 — . A. W., j. p. The foregoing affidavit taken by consent without notice. WILLIAM W., Counsel for adults. JOHN H., Guardian ad litem to infant deft. DECREES EOR SALE OF INFANTS' LANDS. SSS' Decree of Court of Appeals affirming decree of Oircuit Court. Virginia : In the Supreme Court of Appeals of Virginia held at the State Court-house in Eichmond city on Monday, November ,18— Eichard E., Appellant,, against James S., guardian of Eobert P., an infant under the age of twenty-one years; the said Eobert P,, infant as aforesaid ; John H., guardian ad litem to the said in- fant defendant Eobert P. ; Jane L. and Virginia M., Appellees. Upon an appeal from a decree made by the Circuit Court of Hanover on the day of in a suit therein pending in which James S., guardian of Eobert P., was plaintiff and the said Eobert P., an infant, by his guardian ad litem, John H., and Jane L. and Virginia M. were defendants. This day came the parties by their counsel, and the cause having been fully argued by counsel, the court on consideration of the transcript of the record and the arguments of counsel is of opinion for reasons stated in writing and made a part of this decree that there is no error in the said decree of the Circuit Court of the- county of Hanover ; and the court doth adjudge, order and decree that the said decree of the Circuit Court of the county of Hanover be affirmed ; and that the appellant pay to the appellees $ damages" and their costs by them about their defence in this appeal expended. And it is ordered that this decree be certified to the Circuit Court of the county of Hanover. Mitry in the Oircuit Cowt on recdving decree of the Court of Appeals. James S., guardian of Eobert P., Plaintiff, against Eobert P., an infant under the age of twenty-one years, by John H., his guardian ad litem, and Jane L. and Lavinia M., Defendants. The following decree of the Supreme Court of Appeals of Vir- ''It depends upon the constrnotion of the statute, Code, oh. 178, g 24, whether epeoific damages should be given or not. S66 SUITS IN EQUITY. ginia was received-: (here copy decree). Therefore the court, in conformity with said decree of the said Supreme Court of. Ap- peals, doth decree and order that the said Eichard E., the appellant on said appeal, do within twenty days from the «ntry of this decree deposit in the City Bank of Eichmond, to the credit of the court in this cause, the sum of f with interest thereon at the rate of six per centum per annum from the day of , 18 — , and the further sum of $ , with like interest thereon from the day of , 18—, that being the cash instalment and the first credit instalment of his purchase of lot in the proceedings mentioned, and that the said Eichard E. do also execute to William W., special commissioner of this court, his two bonds payable respectively at two and three years from the day of , 18 — , the day of sale, for $ each with interest from the day of sale, and deliver them to the said commissioner, who is directed to file them in the papers in this cause ; and the court doth farther adjudge that the said Eichard E. do also pay unto the parties plaintifi' and defendant in this suit, the appellees in the Court of Appeals, the sum of $ , their costs by them about their defence on said appeal expended, and $ damages awarded them by the said decree of the Court of Appeals of Virginia, and also the costs of the rule against the said Eichard E. in this court (not including an attorney's fee). And it is farther adjudged, ordered and decreed that when and as soon as the said Eichard E. shall make such de- posit in the City Bank of Eichmond, that William W., special com- missioner, shall check on the said bank on an attested extract of this decree for the sum of $ , his commissions, and that B. C, the clerk of this court, do check on the said bank on a like ex- tract of this decree for the sum of $ , his fees in this cause. And it is farther adjudged, ordered and decreed that unless the said Eichard E. shall, &c. (following the form on pp. 560, 561, ante). . Petition of guardian to permit him to euypend part of principal derived from realty of infant, in support and education of the infant.^ To the honorable judge of the Circuit Court of the county of Hanover: The petition of , guardian of P., respectfully represents to the court that your petitioner finds it impossible to meet all the expenses of his ''On the filing of the petition, the court may decree the money to be ex- pended as prayed for. DECREES FOR SALE OF INFANTS' LANDS. 567 "vrard's edacation and support from the income of th^ said ward ; that his ■ward is now in his final year at the University of Virainia, and it is specially important to him that hie education should not now be stopped. Your peti- tioner believes that with the expenditure of $ his education can be com- pleted; and it is highly judicious that that expenditure should be made. There are funds under the control of the court, in this cause, the proceeds of the realty of the said ward. Your petitioner prays that he may be permitted to expend of those funds the said sum of f in the education and support ■of his said ward. And your petitioner will ever pray, Ac. Offer to permit gimrdian to expend $ of the principal, and to lend out mmiey. Names of parties as before. This cause came on this day to be farther heard on the papers for- merly read and on the petition of James S. guardian of Eobert P. and was argued by counsel. On consideration whereof the court ■doth adjudge, order and decree that the said James S. guardian as aforesaid have leave to expend in the support, maintenance and education of the said Robert P. $240 of the principal of his estate and the court doth adjudge, order and decree that the said James S. guardian as aforesaid do check on an attested extract of this decree on the City Bank of Richmond for the sum of $240 to be expended as aforesaid. And it being represented to|the court that a safe loan on sufficient security can be effected of $3,200, at 6 per cent., and the said money only realizing five per cent., and the commissioner who effects the loan agreeing to act for one half the usual commissions, and the borrower agreeing to pay the fees for drawing the bonds and deed of trust, attending the said loan, the court doth adjudge, order and decree that William W., who is hereby appointed a special commissioner for the purpose, do lend out on good real and personal security to one or more borrowers the sum of $3,200, deducting a commission of one per cent, therefrom for effecting the loan, the real and personal security to be approved by th? commissioner and the real security to be worth at the least twice the amount loaned; if the real security offered be worth three times the amount of the sum loaned, no personal security to be required : the terms of the loan or loans to be as follows : the borrower or borrowers to give bond in a penalty equal to double the amount loaned, payable to the said William W. commissioner as aforesaid, and conditioned to pay interest at the rate of six per centum per annum on the money borrowed, quarterly, in advance, 568 SUITS IN EQUITY. and to pay the principal sum borrowed within sixty days after being required to do so by a decree of the court in this cause made after three years from the date of such loan ; such bond or bonds, to be secured by a trust deed or trust deeds conveying real pro- perty; if the real property conveyed be worth three times the amount loaned there need be no personal security in the bond or bonds, if the real property be not worth three times the sum loaned the court orders and decrees that there shall be also per- sonal security in the bond or bonds. And the said commissioner William W. shall on the execution of such bond or bonds and deed or deeds of trust as aforesaid check on an attested copy of this de- cree, on the City Bank of Eichmond, on the fund standing therein to the credit of the court in this cause, in favour of the borrower or borrowers, for the sum or sums of money so loaned, and in his 'own favour for his commissions in eflfecting said loan, said commis- sions not to exceed — per centum on the amount loaned. And the said commissioner is directed to report his proceedings hereunder to the court. Report of commissioner of loans effected. To the honorable jadge of the circuit court of the county of Hanover: P.'s guardian vs. P. & als. Your commissioner reports, that in obedience to the decree made in said- suit he has loaned to Ebenezer Elliott the sum of $1,800, and to George G. the sum of $1,368.32 on the terms prescribed by the decree. In each case the real security offered, exceeded in value, in the opinion of your commissioner, three times the amount borrowed ; and, therefore, no personal security was. demanded. Your commissioner checked on the City Bank of Eichmond in favour of the borrowers for the respective amounts loaned to them and in his own favour for the amount of his commissions. The costs of preparing th» bonds and trust deeds and of recording the trust deeds were Dorne by the- borrowers. The bonds and trust deeds are returned herewith. Respectfully submitted, WM. W., Comm'r. Bond of horrower. Know all men by these presents, that I, Ebenezer Elliott, am held and firmly bound unto William W., commissioner of the Circuit Court of the county of Hanover, in the suit pending therein known by the short title of P.'s g'd'n vs. P. & ah., in the just and full sum of thirty-six hundred dollars ; to the payment whereof, well and truly to be made to the said William W., commis- sioner as aforesaid, his executors, administrators or assigns, I bind myself, and my heirs, executors and administrators, firmly by these presents. Sealed with my seal and dated the day of July, 18 — . The condition of the above obligation is such, that whereas, in pursuance BECEEES FOR SALE OF INFANTS' LANDS. 569 of a decree made by the said Circuit Court of the county of Hanover on the ■ — day of , 18 — , in the said suit of P.'b gd'u vs. P. & als. the said William W., who was thereby appointed a commissioner for the pnrpose, was directed to lend out certain moneys upon the terms set forth in said decree to which decree special reference is hereby made ; and whereas the said William W., com missioner as aforesaid, has loaned to me, the said Ebenezer Elliott, the sum of $1,800, part of the said moneys, upon the terms set forth in said decree : Now, therefore, if th,e above bound Ebenezer Elliott shall pay to the said commis- sioner interest at the rate of six per centum per annuni on the said $1,800, quarterly, in advance, such payments to be made on the days of July, October, January and April in each year, and shall also pay the said princi- pal sum borrowed, to-wit: $1,800, within sixty days after being required so to do by a decree of the said court in the said suit made after three years from the date of this bond, then the above obligation shall be void, otherwisa to remain in full force and virtue. EBENEZER ELLIOTT. [Seal.] li-uat deed to secure bond. This deed made this day of July, 18 — , between Ebenezer Elliott and Mary his wife, parties of the first part, and C. R. S., trustee, party of the second part: Whereas by decree made by the Circuit Court of the county of Hanover in the suit of P.'s guardian vs. P. & als., William W., who was thereby appointed a commissioner for the purpose, was directed to lend out certain moneys, to which decree special reference is hereby made, and the said commissioner having loaned the sum of $1,800, upon the terms of the said decree, to Ebenezer Elliott,- and the said Ebenezer Elliott having executed his penal bond to the said commissioner as required by said decree, which bond and the condition thereunder written are in the words and figures following, to-wit : (here copy bond and condition) now desires to se- cure the payment of the sums of money mentioned therein and a compliance with the condition of the said bond by a trust deed on the property herein- after mentioned : Now therefore this deed witnesseth, that the said Ebenezer Elliott and Mary his wife, in consideration of the premises and of the sum of £ve dollars, do grant and convey unto the said C. R. S. the following property, to-wit : (here describe the property) in trust to secure the payment of the several instalments of interest and of the principal sum of money at the several and respective periods mentioned in the condition of the said bond and to secure a compliance in every respect with the condition of the said bond to the said William W., commissioner as aforesaid of the said Cir- cuit Court of the county of Hanover in the said suit of P.'s guardian vs. P. This bond must be given within sixty days from the date of the order of injunction. Session Acts 1874-5, p. 33. ^1 This bond must be given within sixty days from the date of the order of injunction. Session Acts, 1874-5, p. 33. ** The condition of the bond to be prescribed in the order of injunction, (See Session Acts, 1874-5, p. 33), either thus : " to pay the said judgment and all such costs as may be awarded against him, and all such damages as shall be incurred in case this injunction shall be 'dissolved." Or, " to pay the value of the property levied on under execution on the said judgment by X. X., sheriff, Ac, or to have the said property forthcoming DECREES CONCERNING INJUNCTIONS. 587 ■also file with the cleric of the said Circuit Court of Powhatan cmmty a release of all errors at law in the said judgment and pro- Order dissolving injunction on motion. The defendant this day, in pursuance of notice duly given the 'plaintiff, moved the court to dissolve the injunction awarded the plaintiff in this cause on the day of , [and the said defendant filed his answer'* and the plaintiff replied generally ■thereto] and the said motion coming on to be heard on the bill [and on the said answer with general replication thereto] and on the affidavits of E. E., J. J. and L. L., this day filed in behalf of the defendant, and on the affidavits of A. A. and B. B., this day filed in behalf of the plaintiff, was argued by counsel : On consideration whereof, the court doth sustain the said motion, and doth adjudge, order and decree that the said injunction awarded the said plain- tiff in this cause be dissolved. Order dissolving injunction and dismissing bill, on the hearing. This cause came on this day to be heard on the bill, the answer of the defendant with replication thereto, and on the exhibits and examinations of witnesses, and was argued by counsel : On con- sideration whereof, the court doth adjudge, order and decree that the injunction awarded the plaintiff in this cause be dissolved, and that the bill of the plaintiff be dismissed, and that he pay to the defendant his costs by him about his defence in this behalf ex- pended. to abide the future order of this court, and to pay all such coats aa may be awarded against him, the said plaintiff, and all such damages as may be incurred, in case this injunction shall be dissolved." Or, if a forthcoming bond has been given under the judgment, with a farther condition in each of the above cases, " to indemnify and save harmless B. B. and A. A., the sureties in the forthcoming bond executed by the said plaintiff and their representatives against all loss or damage in consequence of said suretyship." s* See p. 589 post. "See Qoddin vs. Vaughan's ex'x and ah, 14 Qrat., 115, and sec. 72, p. 112 ante. 588 SUITS IN EQUITY. Order continuing injunction on terms. [As in Ross vs. Fleasants, dc.,1 H. & M. 1, where the surety^ being insufficient, the court directed that unless unexceptionable security be given by a specified time, the injunction should stand dissolved as an act of the day on which the order was made : or, in Harrison vs. Morton, 4 H. & M. 483, in which the court being satisfied that a particular individual was interested in the judgment at law, said it would order the injunction to stand dissolved, unless the plaintiff would amend his bill, and make that individual a party ; or, in the cases in which a party, plaintiff or defendant, has died, and the injunction is ordered to stand dissolved unless there be a revival of the suit. See " Practical notes to decrees concerning injunctions," post. Sometimes before dissolution, unless there be a revival of the suit, a rule is necessary. See Jackson vs. Arnold, 4 Eand. 195.] Ordei- continuing injunction, without adjudicating the principles of' the cause. [Such an order in Bait. (£ 0, B. B. Co. vs. The Oity of Wheeling^ 13 Grat. 40.] Injunction perpetuated. This cause, in which the bill has been taken for confessed against the defendant, came on this day to be heard on the bill and exhibits filed, and was argued by counsel: On consideration whereof, the court doth adjudge, order and decree that the injunc- tion awarded the plaintiff in this cause, on the day of , to injoin, &o., [here set forth the injunction,] be made per- petual, and that the defendant do pay to the plaintiff his costs by him about his suit in this behalf expended. Order on injunction to a judgment, decreeing against a plaintiff a sum, of money in addition to the judgment. [Such an order in Todd vs. Bowyer, 1 Munf. 447.] DECREES CONCERNING INJUNCTIONS. 589 Dismission of bill after dissolution of injunction.'^ The injunction awarded the plaintiff in this cause having been "wholly dissolved at the October term of this court, and no cause %eing shown against the dismission of the bill in this suit, it is ordered that the same be dismissed, and that the plaintiff pay to the defendant his costs by him about his defence in this behalf ex- pended. ■Order of injunction at suit of husband, parent, or householder or head of a family, or a laboring man, to prevent levy of execution, dc, on property exempted. [Such an injunction provided for in Sess. Acts 1877-8, chap. 264, p. 247, amending Code 1873, chap. 175, § l.J PRACTICAL NOTES TO DECREES CONCERNING INJUNCTIONS. See "Practical Notes" on pp. 92-95 ante. The rule requiring a release of errors at law mentioned in War- -wick (& ah. vs. Norvell, 1 Leigh 96, referred to on p. 92 ante, has been greatly modified, if not wholly changed by Warwich, (6c. vs. JNbrvell, 1 Kob. R. 308, Great Falls Mamfg. Co. vs. Henry's adm'or, 25 Grat. 577, and Staples vs. Turner, adm'or, d ah., 29 Grat. 330- In Warvnclc, dc. vs. Norvell, 1 Rob. R. 308, the syllabus of the re- porter is this : " A defendant at law having a legal defence to the -action, and a distinct ground for equitable relief against the plain- tiff's claim, may bring his suit in equity without waiting for the determination of the action at law, and may, without being com- pelled to waive his legal defence by confessing a judgment, have a hearing in the court of chancery on the merits of his case, and a decree for the proper relief." This syllabus is cited with approba- tion by Judge Bouldin in Qreai Falh Manfg. Co. vs. Senry'a adm'or, 25 Grat. 580, and is followed in that case ; and both are fCE TO- DECEEES. Muk for attachment against pu/rchaaer. A. B., plaintiff, against 0. D., defendant. It appearing to the court, from the report of P. H., of the sale- made by him as commissioner of this court under the decree en- tered herein on the eleventh day of February, eighteen hundred and forty-nine, that J. E. 0. became the purchaser of the property sold under the said decree, and that he hath failed to comply with the terms of his said purchase. On the motion of the plaintiffs, by counsel, the court doth order that an attachment be sued forth against the said J. B,. G. for his contempt in failing to pay into the- Planters National Bank, of Eichmond, the sum of six hundred and seventy dollars and thirty-one cents, on the eighteenth day of May^ 18 — , that being the amount of the note executed by him for a portion of the said purchase-money, and negotiable and payable at said bank at the date aforesaid, and taken under and in pursuance of the directions of the said decree of sale, unless the said J. E. C» having been previously served with a copy of this order, shew cause to this court to the contrary on Saturday, the twenty-fourth day of the present month. Attachment made absolute. On motion of the plaintiff, by counsel, and for good cause shown,, the court doth order that an attachment be sued forth against J. E. C, the purchaser of the property sold under the decree entered in this cause on the 11th day of February, 18 — , for his contempt in failing to comply with the terms of his said purchase in failing to pay into the Planters National Bank, of Eichmond, Virginia, tha sum of $670.31 cents, on the 18th day of May, 18—. If purchaser " not found " proceed as in " process of contempt to compel an answer." See pp. 598, 599. DECREES AND ORDERS. 601 OTHER ORDERS. Order granting leave to re-examine witnesses. The plaintiff, by his counsel, this day moved the court for an order allowinghim to re-examine and retake the depositions of S. G. and R. H. D., whose depositions have been heretofore taken in this cause, of which motion the plaintiff produced a notice, witk evidence of due service thereof upon the defendant W. J. C, and the said plaintiff also filed his own affidavit in support of the said motion : On consideration whereof the court doth grant to the said plaintiff leave to re-examine and retake the depositions of the said S. Gr. and R. H. D., to be read as evidence in behalf of the said plaintiff in this cause, giving to the defendants reasonable notice of the time and place of retaking the said depositions, and reserving to the said defendants all just and legal exceptions to the reading, of the same when retaken. Demurrer to hill adjudged good and hill dismissed. This day, &c., and thereupon the demurrer of the defendant to- the plaintiff's bill being argued, it is the opinion of the court that the said demurrer is good : Therefore it is decreed and ordered that the said demurrer be sustained and the bill of the plaintiff be dismissed, and that the plaintiff pay to the defendant his costs by- him about his defence sustained. Leave granted to amend hill. On motion of the plaintiff, by counsel, leave is granted him to amend his bill and to make new parties. And the cause is sent to the rules for that purpose. Motion to file a hill of review overruled. This day the plaintiff, by counsel, moved the court for leave to file a bill of review to the decree of this court made on the day of , and the said plaintiff tendered in court his said bill, and the said motion being argued, on consideration thereof, the court is of opinion that there is no error in the said decree, and dotk reject the said motion. 76 '602 SUITS IN EQUITY. Cause revived hy consent. The defendant B. L. having departed this life, by consent as well of the plaintiffs as of H. T., executor of the said B. L., deceased, it is ordered that this suit stand revived against the said executor. CHi^lPTER XII. Execution of decree. 506. In the United States Circuit Courts, as in the Virginia State courts, decrees or orders in equity for the payment of money, are enforced in the same way as judgments at common law; other decrees or orders may be enforced by the process of contempt or its equivalent, and in special cases, the party may proceed by writ of assistance. 507. In the United States Circuit Courts, 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 docu- ments, it is required by the eighth rule of practice, that the decree shall, in all such cases, prescribe the time within which the act shall be done, of which the defendant will be bound, without further service, to take notice ; and upon affidavit of the plaintiff, filed in the clerk's office, that the decree has not been -complied with within the prescribed time, the clerk will issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not EXECUTION OF DECREE. 603 Tje discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the per- formance thereof ; and if the delinquent party cannot be found, a writ of sequestration will issue against his estate, upon the return of non est inventus, to compel obedience to the decree/ 508. In the Virginia State courts, in ' the cases mentioned in the last section, the ordinary course pursued is this : the party is, in the first instance, served with a copy of the decree or order requiring him to do the specific act by a day which is usually mentioned in the decree or order ; if he fail to com- ply, a rule is then made upon him to show cause why an attachment should not issue against him for his contempt in not obeying the decree or order of the court, and a copy of this is likewise served upon him ; if he fail to appear to this rule an attachment will be issued against him ; if he appear and show no suffi- cient cause, he will be, in some cases, imprisoned or fined, beside being required, before his release, to comply with the former order or decree of the court. In case an attachment issues, and it is not served upon him, the process of contempt may be regularly pursued to the sequestration. 509. Writ of assistance. The writ of assistance is a process to put a party in poss(?ssion of an estate which has been ordered by a decree or order to be 1 Reference has been already made to the 96th rule, concerning decrees itt foreclosnre suits and the manner of execnting the same. See p. 584 ante. 604 SUITS IN EQUITY. delivered. 2 Dan. Ch. Pr. (old) 723. Under the old practice of tlie Court of Chancery in England, this writ could not be obtained without previously suing out and serving what was termed a " writ of injunc- tion" to deliver possession, which could only be pro- cured upon the issuing of an attachment or other- process of contempt against the parties for not obey- ing the writ of execution, which attachment or pro- cess was not, however, required to be executed. 2 Dan. Ch. Pr. (old) 724. Subsequently, the writ of injunction was omitted, and by special statute it was provided that where any party obstinately retained possession of land or other real property, after a writ of execution of a decree, or an order for de- livery of possession has been duly served, and demand of possession made, upon an affidavit of such service of the writ of execution, and of such demand made thereunder, and a refusal to comply therewith, on the part of the person against whom the writ issued, the party issuing it should be at lib- erty to obtain the usual order of course for the writ of assistanceto issue, and that the intermediate writs of attachment and injunction, further commanding the party to deliver possession, on any other writ, should be unnecessary. 2 Dan. Ch. Pr. (old) 724. 510. This writ is rarely, if ever, used "in the Vir- ginia State Courts. The usual course adopted in these courts in cases in which, according to the prac- tice just mentioned, this writ might issue, is the one recited in section 608 ante. 511. In the United States Circuit Courts, by the EXECUTION OF DECREE. 605 ■9tli Rule of Practice, when any decree or order is for the delivery of possession, upon proof made by affi- davit of a demand and refusal to obey the decree or order, the party prosecuting the same will be entitled to a writ of assistance from the clerk of the court. 512. The forms of several writs of execution of decrees to enforce decrees or orders for the payment ■of nioney, are similar to those at common law. Forms of these writs, and of the writ of assistance here follow : FORMS OF FINAL PROCESS IN UNITED STATES CIRCUIT COURTS. Fierifadas. The President of the United States of America to the Marshal of the Eastern District of Virginia, Greeting : You are hereby commanded that of the goods and chattels of A. B., you cause to be made the sum of $500, with interest thereon at the rate of six per centum per annum from the day of , 18 — , until paid, which J. W., late in the Circuit Court of the United States for the Fourth Circuit and Eastern District of Virginia, hath recovered against the said A, B., by a decree in -chancery made on the day of , whereof the said A. B. is convict, as appears to us of record : And that you have the said sum of money and interest before the judges of the said court at Eichmond city. State of Virginia, on the Monday of next, to render to the said J. W. the sum of money and interest as aforesaid, and have then there this writ. Witness, E. B. T., Chief Justice of the Supreme Court of the United States, at Eichmond, this day of , and in the year of the Independence of the United States of America. A. A., Clerk. 606 SUITS IN EQUITY. Writ of assistance. The JPresideni of the United States of America to the Marshal of the District of , Oreeting : Whereas, by a certain decree (or order) made in our Circuit Court of the United States for the circuit, &c., in a certain cause therein depending between A. B., complainant, and C. D.,, defendant, on the day of , it was [among other things. therein contained] ordered, adjudged and decreed by the said court that the said defendant, 0. D., should deliver into the pos- session of the said A. B. a certain lot of land (here describe land) ;. and whereas a proper affidavit has been made before the clerk of our said court that the said A. B. did, on the day of , make a demand on the said C. D. for the delivery of the said land into his, the said A. B.'s possession, according to the tenor and true intent of the said decree (or order,) and that the said C. D. did thereupon refuse to make such delivery and to obey the said decree (or order ;) therefore we command you that immediately after receiving this writ you go to and enter upon the said land, &c.^ and that you eject .and remove therefrom all and every person or persons holding and detaining the same, or any part thereof, against the said complainant ; and that you put and place the said complainant or his assigns in the full, quiet and peaceable posses- sion of the said land, &c., without delay ; and him, the said com- plainant, in such possession thereof from time to time maintain,^ keep and defend, or cause to be kept, maintained and defended,, according to the tenor and true intent of the said decree (or order) of our said court. Witness, R. B. T., Chief Justice of the Supreme Court of the- United States, at Richmond, this day of , and in the year of the Independence of the United States of America^ P. M., Clerk. Process of contempt in United States courts. See ante, pp. 153, 154. EXECUTION OF DECREE. 60 T FORMS OF FINAL PROCESS IN VIRGINIA STATE COURTS. Merifacias. The Commonwealth of Virginia, To the of County ^ Greeting : We command you that of tte goods and ' chattels of A. B., late in your bailiwick, you cause to be made the sum of dollars, with interest thereon, &c., which 0. D., lately in our Circuit Court for the county of , recovered against him by a decree in chancery rendered by the said court ; also the sum of dol- lars, which to the said C. D., in the same court, were adjudged for his costs in that suit expended ; whereof the said A. B. is convict, as appears to us of record, and that you have the said sums of money before the judge of our said Circuit Court, at the Court- house in the county of , on the first day of the next term^ to render to the said C. D. of the principal money, interest and costs aforesaid. And have then there this writ. Witness, J. E., clerk of our said court, this day of , A. D. 185 — , and in the year of the Commonwealth of Vir- ginia. J. E., Clerk. Venditioni exponas. The Commonwealth, &o., Greeting: We command you that you expose to sale those goods and chat- tels of A. B., to the value of , which, according to our com- mand, you have taken, and which remain in your hands unsold, as you have certified to our judge of our court, to satisfy 0. D. the sum of , whereof, in our said court, he hath recovered execution against the said A. B. by virtue of a decree in the said court, and that you have, &c. Witness, &c., &c. 'If returnable to rules, omitting italics, say: "And how you shall have executed this writ make known at the clerk's office of our said Circuit Court at the rules to be held for the said court, on the first Monday in next.' ' 608 SUITS lif EQUITY Writ of elegit. The writ of elegit has been abolished. See Code 1873, ch. 183, sec. 26. Process of contempt. See pp. 118-125, ante. 513. In the United States Circuit courts, by. the 10th Rule of Practice, every person, not being a party in any cause, who has obtained an order, or in whose favor an order has been made, will be enabled to enforce obedience to such order by the same pro- cess as if he were a party to the cause ; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, will be liable to the same process for enforcing obedi- ence to such order, as if he were a party in the cause. PART II BOOK II. CHAPTER I. Issues out of Chancery. 514. "Feigned issues," as they are termed,. were the means adopted by the English courts to try questions of fact in equity causes. As juries could not be summoned to attend the court of chancery, the fact was usually ordered to be tried at the bar of one of the courts of common law or, at the assizes ; and to do this effectually, so that the point in dis- pute, and that only, should be put in issue, an action was feigned to be brought, wherein the pre- tended plaintiff declares that he liid a wager of five pounds with the defendant that a particular thing was true ; as, for instance, that A. was heir-at-law to B., and then avers that it is so, and brings his action for the five pounds. The defendant admits the wa- ger, but avers that A. is not the heir-at-law to B., and thereupon that issue is joined, which is directed out of Chancery to be tried. And until this feigned issue was tried, no final decree could be pronounced in the cause. 2. Dan. Ch. Pr. (old), 631. 515. Issues out of chancery are uniformly, in Eng- land, directed to be tried before the courts of common law. This is the practice in the United States Circuit 612 SUITS IN EQUITY. courts, these courts sitting as courts of common law when such issues are tried. The Virginia State courts, however, sitting as courts of equity, may direct such issues to be tried at their own bar, or be- fore a common law court. Code 1873, ch. 173, sec. 4. A circuit court will not be compelled to try an issue ordered by a county or corporation court. Code 1873, ch. 173, sec. 4. 516. Feigned issues, strictly so called, are not directed in any case ; they have been abolished in England, 8 &'9 Vict., ch." 109, § 19. They are not used in the Virginia State courts or in the United States Circuit courts. The questions at issue are now referred to the jury in a direct form. 517. The course of proceeding upon the trial of an issue is generally the same as that adopted in ordi- nary trials at law, except where the court directing the issue has given any special directions upon the subject. 2 Dan. Ch. Pr. (old), 742. The court of chancery usually, provides that on the trial of the issue, copies of the bill, answers, exhibits and depositions of such of the witnesses as are dead, or whose attendance cannot be had, may be read in evidence. Eoane, J., in Burwell, dc. vs. Corhin, dc, 1 Band., 154. See 2 Dan. Ch. Pr. (old), 744. And the court will impose such restrictions upon the parties as will prevent all fraud and surprise at the trial. Aptkorp, dc. vs. Oomstoclc, dc, 2 Paige, 484. See Ford vs. Gardner d als., 1 H. & M., 72. In Steptoe vs. Flood, 31 Grat. 323, the plainti£f in an issue relied upon a receipt to which there was an attesting witness, but both the witness and the principal were dead. The plaintiff having proved the handwriting of the witness, the defendant was per- mitted to introduce witnesses to prove that the name of the princi- pal was not in his handwriting. There being great conflict of opinion among the witnesses as to the genuineness of the hand- writing, the verdict against it, it was held, should not be disturbed. ISSUES OUT OF CHANCEEY. 613 618. The trial of an issue is usually had by viva voce testimony. Paul vs. Paul, 2 H. & M. 525.' The court at whose bar it is tried prevents the introduc- tion of improper testimony. See Pleasants, &c., vs. Boss, 1 Wash., 156. 519. After the trial has been had, the court before which the issue is tried certifies to the court direct- ing the issue how the verdict was found ; and if any special circumstances occur at the trial which the court may think it right to report, they may be thus certified to the court directing the issue. 2 Dan. Ch. Pr. (old) 746. Watkins, &c. vs. Carlton, 10 Leigh 560. [When a verdict is found on an issue directed out of chancery, it is certainly proper that the court in which the issue was tried should certify its opinion of the verdict. Pendleton, P., in Hoss vs. Pynes, 3 Call 573. If a party apply for such certificate, and the court refuse it, such application and refusal may be spread upon the record by bill of exceptions. Stanard vs. Graves, <&c., 2 Call 369. If the court before which the issue is tried should be of opinion that the verdict is against evidence and certify its opinion upon the record, the chancellor will not generally be satisfied with the ver- dict. .Stanard vs. Graves, dc, 2 Call 369 ; Pleasants, do. vs. Boss, 1 Wash. 156. But if the certificate be merely " that the weight of testimony was against the verdict, and therefore that the verdict was not satisfactory," a court of equity will not on this certificate grant a new trial of the issue. Boss vs. Pynes, 3 Call 568. Though there be no certificate that the verdict is against evi- dence, still the chancellor will in some instances direct a new trial * If a verdict be found and certified to the court of chancery, and there be nothing in the record showing that the answer and depositions filed in chan- cery were the only evidence exhibited on the trial of the issue, it cannot be inferred that such was the fact. Paul, &c. vs. Paul, 2 H. & M. 525. A court before whom the issue was tried being satisfied with the verdict, and over- ruling a motion for a new trial, to this opinion no exception was taken ; held that the verdict should remain undisturbed. Ihid. 614 SUITS IN EQUITY. on affidavits proving misbehaviour in the jury, afterwards dis- covered. Pleasants, dc. vs. Ross, 1 Wash. 156. Where, after a verdict upon an issue directed to be tried on the common law side of a county court, the defendant moved the court to certify that the evidence was in his favour, on which motion the court was divided, and at a succeeding term a motion was made to the court sitting in chancery for a new trial which was overruled, and a bill of exceptions filed, containing, as the grounds of the motion, allegations of what passed at the trial, but not containing any proof of those allegations, such allegations were regarded merely as the suggestions of the counsel who drew the exceptions, and the truth of them was not considered as admitted by the court's signing and sealing the exceptions. Ford vs. Gardner, do., 1 H. & M. 72. If the finding of a jury on an issue in equity is not consistent with an admission in the answer, it must be rejected, but both must stand if reconcilable. MeFerran vs. Tayhr, dc, 3 Or. 270. 620. On the trial of an issue a bill of exceptions for an alleged misdirection of the judge, will not lie. The regular course is, to apply to the court directing the issue for a new trial. 2 Dan. Ch. Pr. (old), 746.* [But in Stanard vs. Graves, d&c, 2 Call, 369, when the court in which the issue was tried refused to cer- tify its opinion of the verdict, it was held that if a party apply for such certificate and the court refuse it, such application and refusal may be spread upon the record by bill of exceptions. And in Watkins, &g. vs. Carlton, 10 Leigh, 660, in which bills of exception were taken on the trial of an issue before a common law court, the appellate court, on an appeal from the decree in the chancery cause, looked to the bills of exceptions filed at the common law trial. And in Fitzhugh vs. FitzhugTi, 11 Grat. 210, where there was no exception spreading the facts on the record, the verdict was held conclusive. See also Lee's ex'or vs. Bock, 11 Grat. 182. * In Leavell vs. Oold's adm'or, 25 Grat., 473, the question was considered how verdicts on issues should be set a^ide. ISSUES OUT OP CHANCERY. 615 In McLaughlin vs. Bank of Potomac, 7 How. 220, exceptions were not taken on the trial of an issue and passed on by the Circuit Court sitting in equity; the Supreme Court held, on appeal, that for these reasons it could not notice the points involved. In Brockett vs. Brockett, 3 How. 691, though exceptions were taken on the trial of the issue, as they were not adjudicated upon by the Circuit Court, the Supreme Court would not pass upon them.] 521. It was a question much discussed in Powell vs. Manson, 22 Grat. 177, whether on the trial of an issue, the rule in reference to the weight of respon- sive allegations in the answer was the same as at the hearing. The court held that it was ; and that, on the trial of such an issue, all the allegations of an answer responsive to the bill must be t^^ken as true unless contradicted by two witnesses, or one witness and corroborating circumstances.* * Attention has already been directed to this case in section 375 and note. Here follows a synopsis of the case : 1. Upon the trial of an issue ont of chancery, depositions taken in the cause in the chancery court are not to be read to the jury, unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. 2. The positive denials or statements of an answer, responsive to the bill, cannot be overthrown by the admissions, evasions and contradictions, if any, which may be found in the answer. 3. The plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit ; nor can he do so by proving, di- rectly or indirectly, that the answer is false in one respect, or several respects. The only effect of such proof being to destroy the weight of the answer to the extent to which it is disapproved by that amount of evidence which is re- quired by the rule in chancery. 4. Upon the trial of an issue out of chancery, the bill is not proof of its allegations, except so far as these allegations are admitted to be true by the answer. And the answer is not proof of the allegations therein contained, unless the allegations in the answer, as to facts, be positive, and responsive to 616 SUITS IN EQUITY. 522. The plaintiff in an issue may suffer a non- suit, and if he does so advisedly in consequence of any unforeseen occurrence at the trial which would have rendered further proceeding with it unsafe, the court which directed the issue will grant him a new trial, notwithstanding the nonsuit. 2 Dan. Ch. Pr. (old) 747. 523, If either party is dissatisfied with the ver- dict, he may apply for a new trial to the court direct- ing the issue, 2 Dan. Ch. Pr. (old) 747, and that court may direct a second or even a third trial of the issue, the object of the trial being to satisfy the con- science of the court. 2 Dan. Ch. Prac. (old) 748. [The verdict upon the issue is merely advisory to the Court of Chancery : a motion for a new trial can be made only to that court, and the party submitting it must procure for the use of the Chan- cellor notes of the proceedings at the trial and of the evidence there given, Watt vs. Blarhe, 11 Otto 247 ; the evidence and pro- ceedings then become a part of the record, and are subject ta review by the appellate court, should an appeal from the decree be taken. Ibid. some allegation of the bill. And to be responsive, such allegations of the- answer muBt not be either evasive or contradictory. 5. On the trial of an issue out of chancery, the rule of evidence is tha same ae on the hearing in the chancery court, and the allegations of the an- swer responsive to the bill must be taken as true, unless contradicted by two witnesses, or one witness and corroborating circumstances. 6. Upon =•■ motion for » new trial of an issue out of chancery, on the ground that the verdict is contrary to law and the evidence, the judge, over- ruling the motion, refuses to certify the facta proved, because the testimony was conflicting, but all the oral testimony is certified. The court will consider not merely whether the evidence adduced before the jury warrants the verdiotj but also whether, having regard to the whole case, further investigation is necessary to attain the ends of justice. 7. In such a case, although there may have been a misdirection by the court, or evidence may have been improperly rejected, a new trial will not be granted, if the verdict appears to be right upon a consideration of all the evidence, including that which was rejected. Powell va. Manson, 22Grat. 177. ISSUES OUT OF CHANCERY. 617 In Montana territory, law and equity jurisdiction is exercised by the ssme court, the distinctions between pleadings and modes of procedure in common law actions and in equity suits are abolished ; yet, says the United States Supreme Court, the distinction between law and equity is not changed, and while the Montana statute de- clares "that an issue in fact shall be tried by a jury, unless a jury trial is waived " the court in an equity case is not required to regard the findings of a jury called in the case as conclusive, if, in the judgment of the court, the findings are not supported by the evidence. Basey d ah. \s: Oallagher, 20 WaL, 670. After three verdicts to the same eflPeot, courts of equity will do light in decreeing according to the opinions of juries, Slanard vs. Graves, 2 Call, 369; and after two concurring verdicts for the same party, the court of chancery is not bound to direct a new trial, though both verdicts are in opposition to the opinions of the judges before vj^om the issues were tried, and a verdict had originally been rendered in favour of the other paity. McRae's ex or vs. Wood's ex or, 1 H. & M. 548. See also Boss vs. Pines, 3 Call, 568.]* 524. The court may, even after ordering an is- sue, proceed to a final hearing without trying the is- sue, or setting aside the order, Field vs. Holland, 6 Cr. 8; the decree is an implied discharge of the or- der directing the issue, and is equivalent to such dis- charge. Ibid. *BQt in Buffners vs. Barrett, 6 Munf. 207, upon an injunction to a judg- ment, a new trial was directed at tlie bar of the common law court, and » verdict found in favour of the plaintiff. The court certified that the weight of evidence was in favour of the other party, and the chancellor directed another trial. The jury again found for the plaintiff; and the court certified with the verdict, all the evidence given before the jury, from which it ap- peared that the merits were clearly againet the plaintiff, and in favour of the complainant at law. The court of appeals determined that the injunction should be dissolved, and the bill dismissed with costs. Though in Origshy vs. Weaver, 5 Leigh 197, the judge before whom the is- sue was tried certified, that in his opinion the verdict was contrary to the evidence, yet the evidence being also certified, the Chancellor was satisfied with the verdict, and refused to set it aside and to order a new trial, but dis- missed the bill. The appellate court held, that the Chancellor was not bound in deference to the judge of the court of law to set the verdict aside, and affirmed the dismission of the caae. In Pavl vs. Paul, 2 H. & M. 525, before referred to, p. 613, n. 1, the evidence was not certified. 78 618 SUITS IN EQUITY. 525. Sometimes the court, instead of directing an issue, directs the institution of an action at law, and, in that case, the motion for a new trial (if verdict be not satisfactory) should be made in the court in which the action is brought. An action at law, in- stead of an issue, is usually directed whenever the foundation of the claim is a legal demand, and the question whether a new trial should be had can be discussed with more satisfaction in a court of law than in a court of equity. 2 Dan. Ch. Pr. (old) 763, 764 526. How venue may be changed. A chancellor af- ter directing an issue to be tried in the court of one county, may change the venue and direct it to be tried in another county if he find it necessary, Fou- shee vs. Lef, 4 Call, 279; and this though hy consent of parties, the issue was directed before the bar of the first mentioned county. lUd. 527. Issues out of chancery have been directed in the following cases : Whether claim fair or fraudulent. An issue was directed to as- certain " whether the claim of the appellees, J. H. D. and G. W. D., in the character of creditors of the s5id T. E. D. was fair and bona fide, or fictitious and fraudulent." Beale vs. Diggs <& als., 6 Grat., 591. Whether timber taken or noi, An issue directed " to ascertain and try whether any timber not accounted for by the appellant in his accounts rendered was taken by him from the lands of the ward and sold or converted to his own use, and what sum would be a proper charge against the guardian for such timber so taken and sold or converted to his own use." Isler, de., vs. Orove, 8 Grat., 259.' To try validity of the will. By the statute, the issue to be made up and tried is " whether the writing be the will of the testatrix or 5 In this case witness impeached, and the nature of the subject unliquidated ■damages, and for these reasons, an issue properly directed. ISSUES OUT OF CHANCEKY. 619 not;" yet, if the issue directed be to try the validity of the will, •and the jury find that it is valid, the issue and verdict will be sufficient, Ford vs, Oardner, 1 H. & M., 72, and after a verdict against the validity of the will, if the court of chancery adjudge that the writing purporting to be the will of the testator, is not his "will, but invalid, this in substance is a decree vacating the will, and is sufficient to set aside the will. Roane, J., in Paul, dc. vs. Paul, ■2 H. & M., 534. Lamberts vs Cooper, 29 Grat., 61, was an issue devisavit vel nan. It was there held that if one be offered as a witness, and he is ob- jected to, and the objection be overruled and the overruling is not excepted to, the party making the objection is deemed to have waived it. The same rule applies on the trial of such an issue as applies on trials at common law. Whether deed genuine or not.^ An issue directed to try " whether a certain bill penal, purporting to be executed by the plaintiff's testator, was the deed of the said testator or not ; and further to ascertain, if it should be found to be his deed, what was the con- sideration on which it was founded." Whether deed procured by fraud; and if so, whether afterwards confirmed, without coercion or -constraint. The evidence touching M.'a incompetency being contradictory, and there being some proof that M. had confirmed the deed after its execution, the appellate oourt directed an issue to ascertain — 1st. Whether the deed had been procured by fraud ; and 2nd. Whether, if procured by fraud, it had afterwards been confirmed by M. without coercion or re- straint, when he was competent to act. Mettert vs. Sagan, 18 Grat., 231. Whether a bond was obtained by fraud.. A bill was filed to set aside the bond of the plaintiff on the ground of fraud in its procure- ment, the evidence being conflicting, and the appellant, who was the plaintiff in the court below, having asked for an issue in the lower court, the appellate court directed an issue to ascertain the fact. Magill vs. Manson, 20 Gratt., 527. Fraud? An issue directed to try whether a paper purporting ^ Peculiarly proper for the decision of a jury, when doubt of its genuine- ness. Apthorp vs. Oomstock, 2 Page, 482. ' In Doss vs. Tyack, 14 How. 297, the court held that the facts and circum- stances necessary to constitute fraud being admitted in the answer, it was wholly unnecessary to direct an issue to try the question of fraud : and an issue having been directed and tried in the case aad the jury in their verdict having found the transaction fraudulent, though the verdict was given under a misGonstrnotion and misunderstanding of the charge of the court, the court properly refused to set it aside. It is not improper to direct an issue on a question of fraud in fact though it also involves matter of law. McLaughlin^s. Bank oj Potomac, 7 How. 220. 620 SUITS IN EQUITY. to be a gift of property was fraudulently obtained from the plain- tiflf by the defendant. Johnson vs. Sendley, 5 Munf. 219. See Marshall vs. Thompson, 2 Munf. 412. Whether an absolute deed designed to defraud creditors. An issue was directed, on a bill charging that a conveyance was made without adequate consideration to defraud creditors, to "as- certain what was the amount of the consideration which passed from the grantee to the maker of the deed for the land mentioned in it and whether there was any secret agreement or understanding between the parties that the land was to be holden by the former for the use or benefit of the latter." Bullock vs. Irvine's adm'rs, 4 Munf. 450. Whether an alleged sale of a horse was a shift to evade the statute against usury. Douglass vs. McChesney, 2 Rand. 109. Whether a hill of sale was absolute or a security for money. Knibhs ex or vs. Dixon's ex'or, 1 Rand. 249. Issues directed involving the possession of personal slave property- for five years. Oalt, do. vs. Carter, 6 Munf. 245 ; Hudson vs. Hud- son's adm'r, <£o., 6 Munf. 357. Whether a defendant a secret partner. Cocke vs. Upshaw, (£c., 6 Munf. 464. Whether a patent covered certain land. Boyd vs. Hamilton's heirs^ 6 Munf. 459. To ascertain damages. An issue quantum damnificatus, when a party applies for relief against a penalty, "to ascertain the dam- ages for which the plaintiff is responsible and which he is bound to pay as the condition of the relief sought." Green, J., in Mese vs. Mayse, 6 Rand. 660. And 80, an issue was directed to ascertain " the damages sus- tained by the failure of a party, who had promised another, to pay a debt for him, and who by his promise prevented the other from discharging his debt by other convenient means. Braxton vs. Will- ing, 4 Oall, 301. And so, an issue quantum damnificatus was ordered in NagU vs. Newton, 22 Grat. 814 to ascertain the damages which a vendee had sustained by the improper acts of the vendor and his agents in a case in which the vendor enforced specific execution by the vendee. To ascertain whether debt he a gaming debt, and, if so, whether the transferee of it was induced to take it by the concealment or misrep- resentation of the debtor. Nelson's adm'r vs. Armstrong <£ als., 5 Grat. 354. 528. When the court not bound to direct an issue. — Issues are usually directed where the testimony is conflicting. The court is not always bound to direct ISSUES OUT OF CHANCERY. 621 an issue when the evidence before it is contradictory. In many cases it will judge of the weight of the evi- dence, and if its conscience be satisfied will decide without a jury. Nice vs. Purcell, 1 H. & M, 372. See also Love vs. Braxton, &c., 5 Call, 537, Bowton vs. Bowton, 1 H. & M. 93, Samuel vs. Marshall, &c., 3 Leigh, 567, Townsend, &g. vs. Graves, &c., 3 Paige 453. Harding vs. Sandy, 11 Wheat 103, was a case in which it was held that an issue was unnecessary. The bill was filed by some of the heirs of a deceased person to set aside deeds obtained froin the ancestor by fraud. The question of fraud largely depended upon the mental weakness of the grantor in ths deeds. The court said, "" An issue indeed might have been directed, but we do not think it a case in which this course ought to have been pursued. The degree of weakness or of imposition which ought to induce a court of •chancery to set aside a conveyance is proper for the consideration of the court itself, and there seems to be no reason for the inter- vention of a jury, unless the case be one. in which the court would be satisfied with the verdict, however it might be found. A verdict affirming the capacity of the grantor in this case " could not, we think, have been satisfactory to the court; and it was con- sequently not necessary to refer the question of competency to a jury." The deeds were set aside without an issue. 529. When the court ought not to direct an issue. — The court ought not to direct an issue to try a claim unsupported by testimony. When the court directed ^n issue in a case in which there was no conflict of testimony, though the verdict was found in favour of the party requesting the issue, the appellate court set -aside the order directing the issue, and dismissed the bill. Smith vs. Boyce, 9 G-rat, 294. See Wise vs. Lamb, 11 Grrat. 752. See also Prt/or vs. Adams, 1 €all, 382. In Paynes vs. Ooles, 1 Munf. 373 the court held though infants were interested as complainants, that an issue should not have been 622 SUITS IN EQUITY. directed to try the claim of the complainants, it being altogether unsupported by testimony, or to try a title not alleged in the bill, but suggested in the answer without proof. But in WatMns vs. Carl- ion, 10 Leigh 560, though the evidence was not regular, yet if it had been it would have rendered the order for the issue proper, . and the court held that if the issue should be set aside as im- properly ordered, the cause should be remanded to the court of chancery, where the evidence might be properly taken, and the issue ordered anew. 530. Other cases in which issues should not be directed^ Read vs. Cline, 9 Grrat., 136, was a case in which there should have been no issue. There was no con- flict between diiferent portions of the evidence, na ambiguity or uncertainty in it, but a simple failure to prove material facts. So also in Beverley vs. Walden, 20 Grat., 147, where the allegations in the bill were positively denied by the answer, and the plaintiff failed to produce two witnesses, or one witness with strong corroborating- circumstances in support of the bill, the court held that it was error to direct an issue ; and in Kraker vs. Shields, 20 Grat., 377, where the question was, whether the contract was made with reference to Confederate currency, as the standard of value, or whether the notes were to be paid in the currency of the time they fell due, the court held that the cause was properly referred to a commissioner, and that it was not a case in which the court should direct an issue. In Antliony vs. Oldacre, 4 Call, 489, it was held un- necessary to direct an issue to ascertain deficiency in the land ; and so in Rowton vs. Rowton, 1 H. & M., 92 ; Mce vs. Purcell, 1 H. & M., 372 ; Samuel vs. Marshall, 3 Leigh, 567 ; and Hord vs. Colbert, 28 Grat.^ ISSUES OUT OF CHANCERY. 623 49, it was held that the court was not bound to direct an issue, but might decide without a jury ; and so in WaiMns vs. Young, 31 Grrat., 8-4, it was held, that in- stead of directing an issue, the cause might be re- ferred to a Qommissioner. FORM OF ORDERS DIRECTING AN ISSUE OUT OF CHAN- CERY. Issue of devisavit vel non. See pp. 575-576, ante. Order directing issue in other cases. This cause came on this day to be heard upon, &c. On con- sideration whereof, the court doth adjudge, order and decree that an issue be made up and" tried at the bar of this court [or, at the bar of the court of county,] to ascertain and try whether the claim of the plaintiffs, J. S. D. and 0. W. D., in the character of creditors of T. E. D. is fair and bona fide or fictitious and fraudulent [or, as the case may be.]' And it is . ordered, that on the trial of the said issue, the plaintiffs shall maintain the affirmative and the defendant the negative, and on the trial of said issue, the bill, answers, exhibits and the depositions of such of the witnesses as are dead, or where at- tendance cannot be secured, may be read in evidence, and such other evidence may be introduced by either plaintiffs or defendant, as may be legal and proper. [If the trial is directed at the bar of another court, add " And the said court of county is requested to send and certify the verdict of the jury on such issue to this court, together with any special circumstances which may oc- cur at the trial, and the said court of may think it right to report.] * 'See sectioa 527, p. 618, ante, for other issues. 624 SUITS IN EQUITY. oh:a.p»te:r ii. Proceedings before Masters or Commissioners. 531. The duties of masters or commissioners are so various that we shall not attempt here to detail them all. We propose to treat of the manner in which accounts and enquiries are taken and pro- ceeded in before these oflRcers. 532. On furnishing the master or commissioner a copy of the decree directing an account, he appoints a day to execute it and notifies the parties of the day and place. This notice is given by advertisement, when directed by the court/ or when any of the parties reside beyond the State.'' In other cases, per- sonal service of the notice is required in the Virginia State courts. In the United States Circuit Courts personal service on the parties or their solicitors is requinid in all cases.' A settlement of an administration account, in a chancery suit, without notice to the legatees or distributees, parties interested, will be set aside if excepted to by them on that ground, and a new account will be directed between the parties upon due notice. Ch. Taylor in Campbell, (&c. vs. Wvnston, do., 2 H. & M. 10. See Roberts vs. Jordans, 3 Munf. 488. But an appellate court will not reverse a decree based upon a commissioner's report merely because the commissioner has failed to set forth in his report that notice was given to the parties. The objection for want of notice should be made in the court below." Whites exors vs. Johnson, <£o., 2 Munf. 285, Winston vs. Johnson's exors, 2 Munf. 305. See pp. 544, 545, aiiie. Want of notice of the time and place of taking an account, or iCode 1873, oh. 171, § 5. ■" Code 1873, ch. 163, § 2. '75BuleU. S. Sup. Ct. PROCEEBINGS BEFORE COMMISSIONERS. 625 the court's acting upon it too soon after the report is returned, are not sufficient reasons for a bill of review, such objections not having been taken as they ought to have been, before the rendition of the decree. Winston vs. Johnson's ex'ors, 2 Munf. 305. When the commissioner gives notice to the parties by publica- tion in a newspaper, an exception by a party for want of personal notice where that was practicable, ought not to be entertained un- less he shows by his own affidavit, or otherwise, that he had no such information of the contemplated proceedings of the commis- sioner as would have enabled him to attend. McCandlish's adm'or vs. Ildloe d ah., 3 Grat. 330. And it seems that if process in the suit has been served upon a party, if the court direct that notice may be given by publication, it is no valid objection on his part that he did not see or hear of the notice by publication of the taking an account by a commis- sioner under the order of the court. Hill vs. Boyer, 18 Grat. 364. In Miller vs. Holcomhe, 9 Grat, 665, an exception for want of notice was taken six years after the report was returned, after the argument of the cause, and after the opinion of the court was pro- nounced. The court disregarded the exception. 633. In the United States Circuit Courts, the party at whose instance or for whose benefit the refer- ence is made must cause the same to be presented to the master for a hearing on or before the next rule day succeeding the same when the reference is made and if he omit to do so the adverse party will be at liberty forthwith to cause proceedings to be had be- fore the master, at the costs of the party procuring the reference. * In the Virginia State courts there is no such statute or rule of practice. ' To effect this object the party desiring greater speed may resort to the rule to speed, if it be a plaintiff" who is negligent, * 74th Rule U. S. Sap. Court. ^There was formerly a rule in the Superior Court of Chancery for the Rich- mond District to the effect that an order of account would become inoperative (unless for good cause shown to the contrary) if its execution be not begun within twelve months from its dato, but there is no rule to that effect now in any of the equity courts of Virginia so far as known to the writer. See Anonymous, 4 H. & M. 410. 79- 626 SUITS IN EQUITY. or if it be a defendant, may obtain from the court an order for a hearing without the account or inquiry directed, if the defendant should fail to prosecute the account or inquiry before the commissioner by a cer- tain date, or, in a proper case, may obtain an order requiring the defendant peremptorily to proceed with the account or inquiry before the commissioner by a day to be named by the court. 534. The master or commissioner is authorized to proceed after the notice mentioned in sec 532, though any party should fail to attend^ and a party failing to attend subjects himself to the process of contempt.' On a report of the commissioner stating that the party ordered to do so has failed to render the ac- count ordered, a rule will be made upon him to show cause why an attachment should not be issued against him for his contempt ; and if no such cause be shown the rule will be made absolute and the attachment ordered. * A party may incur other loss by failing to attend before the commissioner. In Snickers vs. Dorsey, 2 Munf. 505, a motion to 6 See V5th Rnle U. S. Sup. Court. ' 2 Bob. Pr. (old) 363, Lane vs. Lane, 4 H. & M. 437. The case in Hening & Munford was a decision of Chancellor Taylor. In that case the party was under process of attachment and the court entered the following order : "that if the said executor do, on or before the 10th August, comply with the terms of the decretal order made in September, 1805, to the satisfaction of the com- missioners thejein named, to be certified to this court, the attachment is to be discharged as an act of this day; but if these commissioners certify that he had failed to comply with the said order, then it is ordered, that the sheriff of Loudon C9mmit him to the jail of that county, till the judge of tlas court, in court or out of court,, is satisfied that the said executor has fully complied with the said decretal order, and shall order him to be discharged." See Code of 1873, chap 190, sec. 27, 28, 29. Sess. Acts, 1877-8, pp. 298, 299. 8 Ibid. PEOCEEDINGS BEFORE COMMISSIONERS. 627 recommit the report of a oommiasioner was made by a party who had refused to attend, though duly notified ; and in support of the motion his own affidavit and the affidavit of two witnesses were filed, going to show that less was due from him than the sum re- ported against him, and that he was prevented from offering his testimony before the commissioner by a belief that he was not in- terested in the suit. The Court of Chancery overruled the motion. Upon appeal, the Court o"f Appeals, considering it better to permit individual Suitors to abide by the effects of their own negligence than to prostrate those rules which have been established for the furtherance of proceedings in equity, approved the decision of the chancellor so far as it refused to open the accounts anew; but the court departed from the decree of the chancellor, so far as to let in the appellant to show himself entitled, if he could, to credits claimed by him upon certain accounts in relation to which the com- missioner had no evidence before him. An order of account, not stating by whom to be taken, must be taken by a commissioner of the court. Anderson vs. Oesty 2 H. & M. 10. The court cannot, without the consent of the parties, appoint commissioners beyond. the State to take the account. Ihid. '635. In the Virginia State Courts, the master or commissioner may adjourn his proceedings from time to time after the notice is given (without a new- notice) until his report is completed. When com- pleted he returns his report, with any depositions of witnesses, or examinations of the parties, which may have been taken, and any exceptions which may have been filed, and the decrees, orders and notices under which he acted, and such documents and pa- pers exhibited as the parties require to be returned with the report. 536. Under the general notice given by the mas- ter or commissioner when the order or decree is first placed in his hands, the master or commissioner may take the depositions of witnesses without giving special notice to the parties of their being taken.' ' MeCandlish vs. Edloe & als., 3 Grat. 330. See p. 544," ante. 628 SUITS IN EQUITY. 537. To obtain the attendance of witnesses, the master is empowered, in the Virginia State Courts, to issue a summons'"; in the United States Circuit Courts, he is authorized to obtain a blank subpoena from the clerk, and signed by the clerk, which may be filled up either by the master or by the party praying the same." 538. In the United States Circuit Courts, if the witness, after being duly summoned, fail to attend, or if he attend and refuse to testify, the fact may be reported to the court, and in the one case his attend- ance will be enforced by the court, and in the other the witness will be compelled to testify by process of contempt, in like manner as if the contempt were for not attending, or for refusing to give testimony in court." 639 In the Virginia State Courts, the witness is compelled to attend by the commissioner in the man- ner set forth in sections 447-449, pp. 475, 476 ante. And should the witness attend and refuse to be sworn or to give evidence, &c., the manner of com- pelling him to do so is as set forth in section 450, pp. 476, 477 ante. 540. In the United States circuit Courts, it is specially required that " All parties accounting be- fore a master shall bring in their respective accounts in the form of debtor and creditor ; and any of the other parties who shall not be satisfied with the ac- '»Code 1873, oh. 172, sec. 26. See pp. 472, 475, 476. " 78th Eule U. S. Sap. Court. " 78th Rule U. S. Sup. Court. \ PEOCEEDINGS BEFOEE COMMISSIONERS. 629 counts SO brought in shall be at liberty to examine the accounting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct"" ; and "All affidavits, depositions, and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master."" " The master will be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories, or viva voce, or in both modes, as the nature of the case may appear to him "to require. ' The evidence upon such examination 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."'* The account may be brought down to the date of hearing before the master. He is not limited to the date of entering the decree. Buhber Co. vs. Ooodyear, 9 Wal. 788. 641. Examination of party. When a party is examined before a commissioner in relation to his own rights and the rights of his adversary, the examination is in the nature of a supplemental bill of discovery. If he be called upon to answer specifically as to particular items of charge, he is to give the best answers that he can from his recollec- tion and information aided by a reference to the books and papers immediately within his control and possession ; with such explanations, fairly responsive " 79th Rule U. S. Supreme Court. " 80th Enle U. S. Supreme Court. i» Slat Rule U. S. Supreme Court. 630 SUITS IN EQUITY. to the questions put, as he may be advised to make for the purpose of excluding any improper conclu- sion to be drawn from these answers. Walworth, Ch., in Peck vs. Hamlin, 1 Paige 247. So far as the answers of the party examined are responsive to the questions put by the opposite party, such answers are evidence in his favor, on the same principle that the answer of a defendant responsive to the bill is evidence against the complainant. Walworth, Ch., in Benson, &g. vs. LeBoy, &g., 1 Paige, 122. There can be no cross-examination by the counsel of the party examined. Ibid. JVor can such party give testimony in his own favor upon other subjects in reference distinct from those on which he has been examined by the adverse party. Armshy vs. Wood, 1 Hopkins's Ch. Rep. 229. Sow far the doctrines announced in this section have been modi- fied by the recent statutes compelling a party, or permitting him, to testify has not yet been determined by the courts. See sections 409, 410, 418, 419 ante. In Templernan vs. Fauntleroy, 3 Eand. 434, there was an answer filed which purported to be the joint answer of Templernan and Yeatman as administrators ; but it was sworn to by Templernan alone. It acknowledged assets, a willingness to pay the debt really due and a readiness to account. An order was subsequently made di- recting a commissioner to ascertain the sum due from the administra- tors and authorizing the plaintiff to examine them on oath. Temple- man would never attend, but Yeatman was examined. In his an- swers to the interrogatories put to him, he stated the amount due from his intestate, that the funds of the estate had been turned over to his co-administrator, and he had none in his hands; that the answer purporting to be joint was filed by Templernan alone and had not been seen by him. Held, that the court was to con- clude from these facts that the answer was the sole answer of Tem- plernan, and that Yeatman had none of the assets and the decree was rightly against Tempi eman alone. 542. In the Virginia State Courts, the commis- PROCEEDINGS BEFORE COMMISSIONERS. 631 sioner is required to return with his report all the decrees, orders and notices under which he acted. He should not copy in his account or his report any- paper ; and if there has been a previous account, he should not copy it into his ; but taking it as the ba- sis of his, correct the errors and supply the defects thereof by an additional statement. Everything im- properly copied into a commissioner's account will be expunged at his costs, on the application of either party ; and if on account of his negligence or mis- oonduct, a report be recommitted, he will bear the costs occasioned thereby." A commissioner who doubts as to any point which arises before him, in taking an account to be returned to a Circuit Court may, in writing, submit the point to such court, or the judge thereof, who may instruct him thereon." 643. In the United States Circuit Courts, " in the reports made by the masters to the court, no part of any state of facts, charge, affidavit, deposition, ex- amination, or answer, brought in or used before them shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or answer, shall be identified, specified and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination or answer were so brought in or used." " 544. In the Virginia State Courts, exceptions may be taken to the report either in the commissioner's office or in the court after the report is returned ; i«Code 1873, ch. 171, sec. 9. " Code 1873, ch. 181, sec. 7. 18 76th Rule U. S. Sup. Court. 632 SUITS IN EQUITY. and to afford opportunity for exceptions, the court cannot hear the cause on the report until it has been returned ten days.'" The report does not stand con- firmed as a matter of course ; it is confirmed only by special direction of the court. 545. In the United States Circuit Courts, "The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto ; and if no exceptions are within that period filed by either party the report shall stand confirmed on the next rule day after the month has expired. If exceptions are filed they shall stand for hearing before the court, if the court is then in session, or if not, then at the next sitting of the court which shall be held there- after, by adjournment or otherwise.'™ 546. "In order to prevent the filing of exceptions to reports for frivolous causes, or for mere delay," it is provided, in the United States Circuit Courts, that " the party whose exceptions are overruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed shall be en- titled to costs ; the costs to be fixed in each case by the court, by a standing rule of the Circuit Court."" '* Code 1873, ch. 171, aeo. 10. The statute requiring the report to lie ten days for exceptions in the clerk's office does not apply to recommitted reports. Code 1873, ch. 171, sec. 10. 20 83rd Eule U. 8. Supreme Court. « 84th Eule U. S. Supreme Court. PROCEEDINGS BEFORE COMMISSIONERS. 635 547. Exceptions are said, in some authorities, to be of the nature of a special demurrer.'^ The United States Supreme Court says they are not. Foster vs. Goddard, i Black 506. They should set forth with sufficient particularity the thing or matter objected to. 1 Barb. Ch. Pr. 191, 2 Rob. Pr. (old) 383.^ All parties to the record who are interested in the mat- ter in question may take exceptions to the report. 2 Dan. Ch. Pr. (old) 558. It was said by Chancellor Taylor in Bead's ex or vs. Winstcm <£ ah., A H. & M. 450, that objections for want of proof of any voucher on which a commissioner finds an item in his account must gene- rally be made before the commissioner himself ; in which case, if such proof be not supplied, it may be called for at the hearing, but in no other instance unless for good cause shown and upon one month's previous notice." It is doubted whether this rule would now be adopted. 548. The exceptions should state the points of the report excepted to. Story vs. Livingston, 13 Pet. 359. It is not the province of the court to investigate items of an account. The report of the master is re- ceived as true, when no exception is taken ; and the exceptions are to be regarded so far only as they are supported by the special statements of the master or " 1 Barb. Ch. Pr. 191. 2 Bob. Pr. (old) 383. '^ Said Spencer, J., in Wilhei, <£c. vs. Rogers, &c., 6 John. Rep. 591, "the^ party excepting must put his finger on the error. When he does so, thfr parts not excepted to are admitted to be correct, not only as regards the prin- ciples but as relates to the evidence on which they are founded." In Foster vs. Ooddard, 1 Black 506, the United States Supreme Court said that an ex- ception to a master's report was not in the nature of a special demurrer and was not required to be so full and specific, that it was only necessary in it to point out the finding and conclusion of the master which it seeks to re- verse. In the same case, it was held that the exception brought up for ex- amination all questions of fact and law arising upon the report of the master relative to that subject. 80 634 SUITS IN I^QUITY. by evidence, which ought to be brought before the <;ourt by a reference to the particular testimony on which the exception relies. Marshall, C. J., in Harding vs. Handy, 11 Wheat 126. 549. Reports which are erroneous upon the face of them though not specially excepted to prior to the hearing may perhaps be objected to at the hearing or in the appellate court. But it is clear that reports not excepted to cannot be impeached before an appellate court — in relation to matter which may be affected by extraneous testimony. White's ex'ors vs. Johnson, &c., 2 Munf. 285, Brown vs. Hastie & Co., 3 Call, 22, Jones's ex^ors vs. Watson, 3 Call, 253, Perkins vs. Saunders, &g., 2 H. & M. 420, Simmons vs. Simmons, ■adrn'or, 33 Grrat. 451. In French vs. Townes, 10 Grrafc. 384, the questions were raised fcy the pleadings and proofs, and it was held unnecessary to raise them by an exception to the commissioner's report. In Williams vs. Donaghe's ex'ors, 1 Eand. 300, there was an ex- ception to the report of a commissioner allowing a charge for a •quantity of iron ; and the chancellor sustained, the exception and pronounced a decree accordingly. The Court of Appeals was of opinion that there was no sufficient evidence in the record to show that the iron was delivered ; and that, in consequence of the ab- aence of such testimony, the exception was correctly sustained. But as there was strong reason to believe that the iron, or a part of it, was delivered, and as the commissioner's having allowed a credit therefor on the evidence exhibited, might have prevented the party claiming the credit from producing other evidence in his power on the subject; the court was further of opinion that under these cir- cumstances the chancellor erred in pronouncing a final decree, and that he ought to have recommitted the account to a commissioner for further evidence and enquiry whether any iron, and if any how much, was delivered. On this ground the decree was reversed, and the cause remanded for further proceedings. In the Ship Potomac, 2 Black 581, the master found the amount due, but stated no account, and his report was excepted to as being excessive, not sufficiently proved, erroneous under the pleadings PEOCEEBINGS BEFORE COMMISSIONERS. 635 •and founded on illegal evidence ; the Supreme Court of the United •States held that such exceptions might justly be treated as frivo- lous, and if overruled, and the case be brought up on appeal, the appellate court could not say that particular charges were wrongly admitted, or particular credits wrongly thrown out. If the master fail to report all the evidence upon the matter of an exception properly taken, the party excepting should apply to the court, specifying what is omitted, verify his statement, and the court will require a further report. Story vs. Livingston, 13 Pet. 359. 550. In the United States Courts, no objections to a master's report can be made which were not taken before the master. Stori/ vs Livingston, 13 Pet. 359, McMicken vs. Perrin, 18 How. 510. In McMicken vs. Perrin, the United States Supreme Court cited with approval Heyn vs. Heyn, 4 Jacob 47, deciding that after a decree jjro confesso the defendant was not at liberty to go before the master without a special order, but the accounts were to be taken ex ;parte. 551. Recommitment of report. There was a suit by distributees against an administrator. The ac- counts were referred, and a report was returned be- fore the defendant's evidence was filed. He excepted to the report and filed an affidavit showing a suffi- cient excuse for not sooner taking his evidence, and asked for a recommitment of the report. After the report was returned and before the recommitment, depositions supporting the defence were filed ; the defendant upon his affidavit and those depositions asked the recommitment. Under these circum- stances it was proper to recommit the report, but it would not have been proper, even though the testi- mony might sustain the defendant as to the subject of controversy, to dismiss the bill ; the plaintiff 636 SUITS IN EQUITY. should have an opportunity to disprove the testi- mony, and was also entitled to an account of admin- istration. Thomas vs. Dawson, 9 Grrat. 531. 552. On afpeal how exceptions regarded in United States Courts. Exceptions cannot be taken on appeal. New Orleans vs. Gaines, 15 Wal. 632. They must be taken in the court below. Hudgins & ah. vs. Kemp, 20 How. 46, 54; Canal Co. vs. Gordon, 6 Wal. 561 ; Kinsman & als. vs. Parkhurst, 18 How. 289 ; Ransom vs. Davis^s adm'or, 18 How. 295. In Oliver vs. Piatt, 3 How. 333, 412, although the exceptions . to the master's report were not formally overruled or allowed in the court below, yet it was plain that in the final decree- they were all disposed of, some being allowed and some disallowed. The decree was afl&rmed. When a chancery suit involves matters of account the action of a master should be had in the inferior court, and the items ad- mitted or rejected should be stated, so that exception may b& taken to the particular items or class of items, and such a case should be brought before the Supreme Court on the rulings of the exceptions by the Circuit Court. McLean, J., in Ransom vs. Davis's adm'or, 18 How. 296. See pp. 643-546 under title " commissioner's re- port," a collection of Virginia cases concerning com- missioner's reports. See also "Practical notes to- decrees for account," pp. 528-543. INJUNCTION. 637 OH AFTER III. Of Injunctions. 553. As to injunctions to judgments, see pages ■86-95, ante. 554. Injunctions are granted to restrain waste, to •enjoin the erection of a nuisance, to prevent the col- lection of purchase money on account of defective title in land or on account of deficiency in the quan- tity of land sold, and for other purposes. WHEN INJUNCTION GRANTED. Injunction granted — on account of defective title, Keytons vs. Brawfmds, 5 Leigh. 39, Koger <& als. vs. Kane's adm'or <& ah., 5 Leigh 606, Miller vs. Ar gyle's ex or <& als., 5 Leigh 460 : [It is ^aid in Ross vs. Woodville d als., 4 Munf. 324, that a purchaser even after suing may waive the defect of title, and the surety in the bond given for the purchase money will not be permitted to insist upon it. Sed quaere.] ; but in Long's ex or vs. Israel, 9 Leigh 556, under the circumstances of the case, the defect of title was not sufficient ground for injoining the collection of the purchase money. Injunction granted on account of defideney in quantity of land, Keytons vs. Brawfords, 5 Leigh 39, Clarhe vs. Sardgrove, 7 Grat. ■399, Triplett vs. Allen, 26 Grat. 721, Koger (& ah. vs. Kane's udm'or (& ah., 5 Leigh 606. Injunction granted when title is in dispute. Lane vs. Tidball, Gilm. 130. See Duncan vs. Fisher (£c., 2 Desau. 369, 2 Rob. Pr. (old) 63. Injunction granted to protect vendor's lien on land and chattels sold for a sum in gross. Olarke (£ ah. vs. Ourtis, 11 Leigh 559. Injunction granted to prevent a premature suit on a bond given for purchase money. Bullitt's ex'ors vs. Songster's adm'or, 3 Munf. 54. Injunction granted — in cases of slaves. See note below .^ • Randolph ve. Randolph, 3 Munf. 99, 2 Rob Pr. (old) 224 ; Wilson, &c. vs. Butler, (fee, 3 Muaf. 559, 2 Rob. Pr. (old) 224; Allm vs. Freeland, 3 Rand. 638 SUITS IN EQUITY. Idj unction granted — to prevent the sale of B.'s property under an execution against A. ; there being the pretium affectionis. Ran- dblph vs. Randolph, 3 Munf. 99, Wilson, do. vs. Butler, <£c., 3- Munf. 559, Allen vs. Freeland, 3 Eand. 175. Injunction granted — in cases in which debt secured by deed is regarded in equity as a penalty. Mayo vs. Judah, 5 Munf. 495. Injunction granted — to prevent, during the pendency of a suit to subject the land, the cutting and selling timber from it in a manner calculated to render the land insufficient security for the purchase money. (Oh. Taylor), Scott vs. Wharlon, 2 H. &"M. 25. See Code 1873, chap. 133, sec. 5. Injunction granted — in cases of usury. Marks vs. Morris, 2 Munf.,. 407 ; Stone vs. Ware, 6 Munf., 541 ; MoPherrin, dc, vs. King, 1 Rand., 172; Young vs. Scott, 4 5,and., 415; Fitzhugh vs. Gordion, 2 Leigh, 629. [See what is said of these cases in 2 Rob. Pr. (old) 63-64.] Clarkson vs. Garland, 1 Leigh, 147 ; Brown vs. ToelCs adm'r, 5 Rand., 545 ; Fulcher vs. Baker <£ als., 1 Leigh, 453 ; Gahaniss vs. Matthews <£ als., 2 Grat., 325. Injunction granted — in cases of gaming. Woodson, <£g., vs. Bar- rett (& Qo., 2 H. & M., 80; SUpwith vs. Strother, (6c., 3 Rand., 214; Watson vs. Fletcher, dc, 7 Grat., 1. Injunction granted — in cases of nuisance. Depriving plaintiff of the use of a water-course, (halter vs. Hunter, dc, 4 Rand., 58 ; Stokes, dc, vs. Upper Appomaitox Co., 3 Leigh, 318. Injunction granted — in cases of nuisance. Erecting a dam so as to injure plaintiff's inill, 2 Rob. Pr., (old) 232-233, citing Arthur, dc, vs. Case, dc, 1 Paige's Oh. Rep., 447 ; S. C. on appeal, 3 Wend., 632. Injunction granted — -in cases of nuisance, causing irreparable mis- chief, though nuisance under colour of a statute. Orenshaw vs. The Slate River Co., 6 Rand., 245. See Stokes, dc, vs. Upper Ap- pomattox Co., 3 Leigh, 318. Injunction granted — in cases in which irreparable damage would ensue if the aid of equity were denied. See 4 Min. Ins., 109, Bowyer vs. Oreigh, 3 Rand., 32; Poage vs. Bell, 3 Rand., 583; 4 Min. Ins. 7 and 8, 473 ; Beveridge vs. Lacey, 3 Rand., 63. See Miller vs. Trueheart, dc, 4 Leigh, 569. 175, 2 Bob. Pr. (old) 225 ; Harrison vs. Sims, 6 Rand, 506, 2 Rob. Pr. (old). 2254 Sughes vs. Pledge & als., 1 Leigh 443, 2 Rob. Pr. (old) 225; Chapman vs. Washington, 4 Call 327, 2 Rob. Pr. (old) 225 ; Sampson vs. MitcheWs ex'or, 5 Munf. 175, 2 Rob Pr. (old) 225, 226; Scott, &c. vs. Ralliday, dec, 5 Munf. 103, 2 Rob. Pr. (old) 225 ; Dunn vs. Amey & als., 1 Leigh 465, 2 Rob. Pr. (old) 226; Eolliday vs. Coleman, 2 Munf. 162, 2 Rob. Pr. (old) 227; Mortimer va. Moffatt, &c., 4 H. & M. 503, 2 Rob. Pr. (old) 227; Whitton's admo'r vs. Terry, 6 Leigh 189; Anderson's ex' orsYS. Anderson, 11 Leigh 616, [the last case concerning prospective right to freedom.] INJUNCTION. 639 Injunction granted — in cases of nuisance, threatening thehealtli of an individual or his family, 4 Min. Ins. 7. Miller vs. True- heart, 4 Leigh 569. Injunction granted — to restrain waste, Findley vs. Smith, <£c., 6 Munf. 142 (see Orouch vs. Furyear, dc, 1 Eand. 258) 2 Eob Pr. (old) 228-231. Notice differences between Oh. Kent in Kane vs. Vanderburgh, dc. 1 John. Oh. Kep. 11, and Oh. Taylor in Cutting vs. Carter, dc, 4 H. & M. 424 ; in the latter, the chancellor refused the injunction there appearing no impediment to the action of waste at law. Chancellor Kent, in Kane vs. Vanderburgh, granted the injunction saying that it was a wholesome jurisdiction to be liberally exercised in the prevention of irreparable injury and depended on much latitude of discretion in the court. But in Storm vs. Mann, 4 John. Oh. K. 21 the defendant claiming under a title adverse to the plaintiff, the chancellor: refused the injunction. See also Pills- worth vs. Hopton, 6 Ves. 51 and Siggins <& als. vs. Woodard, dc, 1 Hop. Oh. Rep. 342. See Garrison vs. Hall d als., Va. L. Jour. 1881, p. 127. Injunction granted — at the suit of the owner to prevent one who claimed the land from taking iron ore from it. Anderson vs. Sarvey, 10 Grat. 386. Injunction granted — to prevent the enclosure of streets cove- nanted by vendor to be kept open for vendee's free use, BrooTce vs. Barton, 6 Munf. 306; 2 Rob. Pr. (old) 191; and to prevent the closing up of an alley, the vendor assuring the vendee (though not in writing) that it would always be kept open. Trueheart vs. Price, 2 Munf. 468. Injunction granted — to relieve against vindictive damages in an action of trespass against a sheriff who had levied on property in possession of a defendant legatee (who had the beneficial interest, though the legal interest was in the executors of the testator) Lewis's adm'or vs. Wyatt, 2 Rand. 114. Injunction granted — to relieve against a decree obtained by sur- prise. See Calloway vs. Alexander, dc, 8 Leigh 114. Against a judgment obtained by surprise. Mason vs. Nelson, 11 Leigh 227. Injunction granted — in Sichersons adrrior vs. Helm, 2 Rob. 628 approving the rule in Pulliam vs. Winston, dc, 5 Leigh 324, but establishing an exception. The effect of the two decisions is this ; that while the general rule denies to a creditor or distributee the aid of a court of equity to intercept by injunction the collection of assets by the executor or administrator, especially those arising from the sales of the executor or administrator, until the adminis- tration accounts are adjusted, with the view that the debt or dis- tributee's share may be set off; yet where the title to the set off is founded on the express agreement of the executor or administrator, and this is coupled with long continued delinquency on the part of 640 SUITS IN EQUITY. the executor and, his representative to settle the administratioa accounts, the injunction should be granted. Injunction granted — to judgments, when defence though known at the trial could only be made in equity. RoyaU's adm'or vs. HoyatFs adm'or, 5 Munf. 82; Pendleton's adm'or ve. Stuart, <£c., 6 Munf. 377 ; Flclcett, do. vs. Stewart, do., 1 Rand. 478. , Injunction granted — to judgments, when matter arising after the judgments make their enforcement improper. RoyaU's adm'ors vs. Johnson c& als., 1 Rand. 421 ; Miller s ex'ors vs. Rice d als., 1 Rand. 438 ; Crawford va. Thurmond d als., 3 Leigh 85. Injunction granted — to judgment on the ground of the loss of an instrument, without which defendant could not defend himself at law. Vathir vs. Zane, 6 Grat. 246. Injunction granted — to judgments at law, in other cases. See pp. 92-94. Injunction granted — to a judgment in case of slander, on the ground of the insanity of the person uttering the words. Horner vs. Marshall's adm'ix, 5 Munf. 466. Injunction granted — to a judgment on a forthcoming bond, at the instance of a surety of the defendant therein on the ground that he is a creditor of the judgment creditor to a larger extent than the judgment and the judgment creditor is insolvent. McClellan vs. Kinnaird, 6 Grat. 352. Injunction granted — in case of a discharged bankrupt as to judgment recovered before his discharge. Peatross vs. McLaugh- lin, 6 Grat. 64. Injunction granted — to restrain a sale of land under a trust deed, there being a cloud upon the title. Faulkner vs. Davis, 18 Grat., 651. Injunction granted — to restrain a sale under a trust deed, the amount due being uncertain. Sogan vs. Dxike. 20 Grat., 244. Injunction granted — a temporary injunction. Goodwyn vs. McCluer, 3 Grat., 278. Injunction granted — to restrain an administrator from selling land until the matters in controversy between him and the devisee are decided. Watson vs. Fletcher, 7 Grat., 1. Injunction granted — to plaintiff in equity attachment to stop sale under subsequent attachments at law. Moore d als., vs. ITolt, 10 Grat., 284. Injunction granted — to a judgment, grounds of stated in Holland, da., vs. Trotter, 22 Grat., I36, 140-1. See 1 P. & H., 43. Injunction granted— to restrain proceeding at law, the plaintiff in equity having the equitable right to the land. Stafford vs. Carter, 4 Grat., 63. Injunction granted — to perpetually enjoin a part of a judgment at law on the ground that the plaintiff, who had satisfied the re- INJUNCTION. 641 anainder of the judgment, was under his contract, bound for no more. Booth vs. Kesler, 6 Grat., 350. [8ed quaere : for there is nothing in the report of the case to show that the defence was •equitable, or that it could not have been made at law.] Injunction granted — to a surety to enjoin sale under an execu- tion. Meade vs. Origsby's admrs, 26 G-rat., 612. If a defendant in an execution file a bill to enjoin the execution on the ground that a previous execution sued out on the same judg- ment had been levied by the sheriff on the property of another de- fendant in the execution sufficient to discharge it, the bill to enjoin execution must be filed in the county in which the judgment was ■obtained. Beohley vs. Palmer <£ als., 11 Grat,, 625. Injunction granted — to sureties released by contract for forbear- ance to principal. Armistead (£ als., vs. Ward (& als., 2 P. & H., 504 ; Oreat Falls Manufacturing Co. vs. Senry's adm'or, 25 Grat., •679. Injunction granted — to prevent the building of a dike along a stream, on one aide of it, the effect of which is to destroy a dike on the other side and injure the land of the proprietor on that side. Burwell vs. Sbbson, 12 Grat., 322. Injunction granted — to restrain a town from removing buildings said to be in a street. Manchester Cotton Mills vs. Town of Man- ■chester, 25 Grat., 825. See Poe vs. City of Richmond, 24 Grat., 149. WHEN INJUNCTION REFUSED. Injunction refused — because to grant it would be an improper interference with the discretion reposed in an executor by his testator. Dixdn vs. McOue, 14 Grat. 540. Injunction refused— to a surety, who alleged his principal obli- gor obtained his signature by fraud and misrepresentation, but who did not farther allege that the payee was party to the fraud. Griffith vs. Reynolds, 4 Grat. 46. Injunction refused — to a judgment at the instance of a surety who pleaded usury at law and was defeated ; his alleged after dis- covered evidence being merely cumulative. Harnsharger vs. Kinney, 13 Grat. 311. Injunction refused — to one who had defended himself at law and failed, alleging that he is now able to prove his defence — but not alleging that he was prevented by fraud, accident, mistake, &c., from establishing his defence at law. Norris vs. Hume, 2 Leigh 334. Injunction refused — to a judgment on the ground that as to one of the defences the after discovered evidence was merely cumula- tive, and as to the other that the defence might have been made at law. Samsbarger s adm'or vs. Kinney, 13 Grat. 511. See 1 P. & H. 141. 81 642 SUITS IN EQUITY. Injunction refused — because of neglect to defend at law. Griffith vs. Thompson, 4 Grat. 147 ; George vs. Strange, 10 Grat. 499 ; Meem vs. Ruchesn, 10 Grat. 506. Injunction refused — to a judgment entered by consent under a mutual mistake of law as to right of appeal. R. d P. B. R. Go. vs. Shippen, 2 P. & H. 327. Injunction refused — to prevent a joint devisee of land from en- tering on it, at the suit of one claiming under his joint devisees. Baldwin vs. Darst, 3 Grat. 126. Injunction refused — to enjoin directors of a railroad company from doing any act as suet, tliough case made sufficient for the ap- pointment of a receiver of the road. Stevens vs. Davison, 18. Grat. 819. Injunction refused — to an execution, the plaintiff in the bill tendering the amount of the judgment after the execution had issued, there being no allegation nor proof that the money was kept on hand for the discharge of the judgment. Shumaker vs.. Nichols, 6 Grat. 592. Injunction refused — to a judgment on scirefaeias against a bail though he had surrendered his principal, the bail having failed to defend the scirefaeias. Allen vs. Sdmilton, 9 Grat. 255. Injunction refused — to a party claiming additional credits on an execution ; his remedy is by application to the court whence the execution issued. Morrison vs. Speer, 10 Grat. 228. Injunction refused — to a debtor in an execution who claims that under a prior execution sufficient property had been levied on and its proceeds misapplied ; he should apply for redress to the court whence the execution issued. Bechley vs. Palmer, 11 Grat. 625. Injunction refused — to a surety, his principal not appealing from an order dissolving an injunction, the injunction being granted on the ground of want of title ; the principal may waive a good title, and his waiver binds his surety. Ross vs. Woodville c& als., 4 Munf. 324. Injunction refused — to enjoin the sale of personal property; com- plete remedy at law. Poage vs. Pell <£ als., 3 Eand. 586. Injunction refused — to a judgment, on application of a person not a party to it. Jordan's adm'ix vs. Williams, 3 Eand. 501. He may obtain an injunction to the levy of the execution. Ibid. Injunction refused — in Rhodes vs. Cousins, 6 Rand. 188; but see Code 1873, ch. 175, § 2, as to rights of creditors before obtaining judgments. Injunction refused — to enjoin a proceeding under an execution and upon a forthcoming bond, there being a plain remedy at law, Miller vs. Orews, 2 Leigh 576. Injunction refused — in the case of Glebe lands. Overseers of the Poor vs. Hart, 3 Leigh 1. Injunction refused — under the circumstances of this case in which INJUNCTION. 64S plaintiff claimed there was defect of title ; there was no eviction nor disturbance, and the deed of conveyance was only with general warranty. Longs ex'or, <£c. vs. Israel (& ah., 9 Leigh 556. Injunction refused — to restrain the proceedings of the James River and Kanawha Company : to justify an injunction against the com- pany, it must appear both that it is transcending the powers granted by the charter and that the injury sought to be prevented, cannot be adequately compensated by damages. Jas. R. <£ K. Co. vs. An- derson, c£c., 12 Leigh 278. Injunction refused — to a judgment, to permit a defendant in the judgment to establish offsets he was prevented by unavoidable ac- ■ cident from proving in the action at law, the offsets not being con- nected with the debts sued on; and he having a plain remedy at law for the recovery of his claims. Hudson va. Kline, 9 Grat. 379. 555. The method of dissolving injunctions and the consequences of dissolution, and the damages awarded in cases of dissolution appear in the sub- section. Dn motion to dissolve injunction before eegulae heae- ING. If on- motion to dissolve, previous to regular hearing, the court dismisses the bill, it is error. Blow, adm'or, vs. Taylor, 4 H. & M., 159. See Sowten vs. Bowton, 1 H. & M., 110; Wise vs. Lamb, 9 Grat., 294. On motion to dissolve, it is not required of the defendant to in- validate by full proof the allegations of the bill ; the burden is on the plaintiff to sustain them. North's exo'r vs. Perrow, 4 Rand., 1. See Randolph vs. Randolph, 6 Rand., 194. On motion to dissolve, objection that the bill is multifarious, will not avail. Shirley vs. Long, 6 Rand., 764. On motion to dissolve before answer filed, the allegations of the bill are taken to be true. Peatross vs. McLauqhlin, 6 Grat., 64. See Bait, d 0. B. R. Co. vs. City of Wheeling, 13 Grat., 40, as to motion after answer filed, and §§ 365-366, pp. 411-412, ante. An administrator enjoining a judgment against himself as ad- ministrator on the ground that he is a creditor, to sustain the in- junction on a motion to dissolve, must show by his accounts that he is a creditor. Dehney vs. Hutcheson, 2 Rand., 183. The court never continues a motion to dissolve unless from some very great necessity. (Oh. Taylor), Radford's ex'ors vs. Innes's ex'ors, 1 H. & M., 7 ; West's ex'or vs. Logwood, 6 Munf., 497, 2 Rob. Pr., (old), 243, When a motion to dissolve should be continued. Tifany vs. Kent, dc, 2 Grat., 231. 644 SUITS IN EQUITY. When error to dissolve before final hearing. Qray vs. Ov&t- itreet, 7 Grat. 346. Dissolution of injunction. — Death of parties; need of revival. When injunction dissolved on death of defendant unless suit re- vived, Boss vs. Pleasants, 1 H. & M. 1 ; Kenner vs. Hard, 1 H. & M. 204 ; and on death of plaintiff, Carter vs. WashingUm, 1 H. & M. 263 ; Jackson vs. Arnold, 4 Rand. 195. There is need of a rule in such cases, Jackson vs. Arnold, 4 Rand. 195. The court should not impose unreasonable terms, 2 Rob. Pr. (old) 242. In Mackays vs. Site <£ als., 2 Leigh 145, four plaintiffs in equity united in the same bill praying, on grounds of equity common to all, an injunction to stay proceedings on four several judgments against them respectively. The bill was exhibited against five de- fendants. The injunction was awarded, and, pending the suit, two of the plaintiffs and three of the defendants died. The chancellor ordered that unless the living plaintiffs and the representatives of the deceased plaintiffs revived the injunction at or before a given day the injunction should stand dissolved. Held, this order was irregular and erroneous. See the argument of Wyndham Robertson. Othee, matters oonceening dissolution. Dissolution unless new party made. Harrison vs. Mao-tin, (Ch. Taylor), 4 H. & M. 483. In Beale vs. Gibson, 4 H. & M. 481, the injunction was awarded until the coming in of the answer, and Oh. Taylor held that the injunction was of course dissolved on the coming in of the answer; but the Court of Appeals, in Turner vs. Scott, 5 Rand. 332, over- ruled Beale vs. Gibson in this particular. After bill of injunction has been taken for confessed, a motion to dissolve the injunction as improvidently granted will not be re- ceived. (Oh. Taylor), Turpin, adrnor vs. Jefferson, 4 H. & H. 483. In Toddva. Bowyer, 1 Munf. 447, the court not only dissolved the inj auction to the judgment at law, but decreed that the plain- tiff in equity should pay an additional sum. An injunction to a judgment for purchase money should not be dissolved until the vendor tender a good deed. Grantland vs. Wight, 2 Munf. 179. An injunction dissolved because not- supported by evidence. Greenhow's adm'ix vs. Harris, 6 Munf. 472. If after injunction dissolved, the defendant have the cause set for hearing on his motion, he cannot claim that the bill should have been dismissed under the statute." Franklin vs. Wilkinson, 3 Munf. 112. n R. 0. p 208, J 60. Sees. Acts 1830-1, p. 56, ch. 11, ?42. Code 1873, chap. 175, I 14. INJUNCTION. _ 645 I The dismission of the bill after two terms' does not apply if bill seeks other relief. Pullw/m vs. Winstm. d ah., 5 Leigh 324. When the Circuit Court simply dissolves the injunction, the Court of Appeals affirming the order of dissolution will, in a proper case,* go on and dismiss the bill. Seffner vs. Miller, <&c., 2 Munf. 43. Though an injunction be dissolved as to an assignee, it may be retained to relieve the obligor against the assignor. Buffners vs. Barret, 6 Munf. 207 ; 2 Eob. Pr. (old) 250. When dissolution of injunction on tendering or filing a deed is 'proper, without requiring the deed to be approved by the court. McMahon vs. Spangler, 4 Rand. 51. A dissolved injunction is revived by an appeal. Turner vs. Scoit, 5 Rand. 332. • When execution may issue on a judgment before the entering of the decree of the Court of Appeals affirming the order which dis- solved an injunction to the judgment. Eppes's adm'or vs. Dudley, 4 Leigh 145. It was error (when the circuit courts had no power to dissolve an injunction in vacation) to dissolve an injunction in court with direction that the order should not go out ; and then in vacation to direct it to go out, BanMph vs. Randolph, 6 Rand. 194 ; but qusere as to effect of statute authorizing the dissolution of an in- junction in vacation. Code 1873, ch. 175, sec, 12. An injunction granted on a pure bill of discovery should be dissolved, when the defendant by his answer makes no discovery but on the contrary negatives the allegations of the bill. Webster vs. Couch, 6 Rand. 519.^ When a judgment creditor dies pending the injunction to the judgment, and a revival is had of the injunction suit, on dissolving the injunction a decree should not go in equity for the money which will be payable to the creditor on the dissolution; the judg- ment should be revived. Medley vs. Pannill's adm'or, 1 Rob., 63. An injunction to judgment dissolved, because the plaintiff should have made his defence at law. Hendricks, <£c. vs. Compton's exors, 2 Eob. 192. An injunction dissolved after answer, on the hearing, the plain- tiffs having in support of their bill only one witness, and no cor- roborating circumstances. Thornton-^s. Oordon, &c., 2 Rob. 719. ' See statutes cited in last note. * In this case the Circuit Court had affirmed the order of dissolution by a county court. * The apparent conflict of this case with Oilliam vs. Allen, 1 Band. 414, on a point different from the above, discnssed by Mr. Robinson in the first edition of his Practice, vol. 2, pp. 246, 247, has ceased to be of any practical importance. 64Q SUITS IN EQUITY. An injunction dissolved, the bill not showing any equity on its face. 8lack vs. Wood, 9 G-rat. 40. An injunction dissolved, the vendor having removed incum- brances, and obtained title before the decree. Young vs. McGlung, 9 Grat. 336, Heevis vs. Dickey, 10 Grat. 188, Jaynes d als. vs. BrocTc, 10 Grat. 211. The absence of a foreign corporation, defendant, not a ground for refusing to dissolve the injunction in Balto. <£ 0. R. R. Co. vs. The aty of Wheeling, 13 Grat. 40. When a judge may dissolve an injunction in a cause removed from one court to another. Muller vs. Bayly, 21 Grat. 521. An injunction to a sale under a trust deed should not be dis- solved until the amount of the debt is ascertained. White vs. Mech. Building F. Association, 22 Grat. 233. An award held invalid, and an injunction depending upon it dissolved. Tate vs. Vance, 27 Grati 571. When the answer denies all the statements of the bill, the court will, on the hearing, dissolve the injunction and dismiss the bill, or will order a sale. Sogan vs. Duke, 20 Grat. 244. Damages on dissolution of injunction. Damages on the dis- solution of an injunction to a judgment, computed on the aggregate of the principal, interest and costs due on the judgment at the date of the injunction. Washington's ex or vs. Parks, 6 Leigh, 581. See Jeter vs. Langhorne, 5 Grat., 193. The damages on dissolution of injunction to a judgment form part of the judgment, and are embraced in the lien of it. Michauxs adm'or vs. Brown <£ als., 10 Grat., 612. Damages awarded on dissolution of an injunction to a judgment against a person, who, though not a party, enjoins its execution. Claytor vs. Anthony, 15 Grat., 518. See Olaytor vs. Anthony, also, as to recovery of damages, if injunction bond is too small. Relief against damages accrued on dissolution of a former in- junction. Crawford <£ als. vs. McDaniel, 1 Rob., 448. 556. The following forms of bills, and of prayers in bills, of injunction should be referred to: Bill to cancel a deed obtained by fraud. [Bill alleges that plaintiff was aged and infirm, unable to read and write, and unaccustomed to the transaction of business, that the defendant, his brother-in-law, obtained from him authority to col- lect his rents and take charge of his property ; and sometime after- wards, with intention to defraud the plaintiff, plied him with in- toxicating liquors, and brought him, while thus intoxicated, a docu- INJUNCTION. 647 ment to sign, fraudulently representing it to be a power to collect rents and manage his property ; that this document was not read to the plaintiff, nor was he informed of its true contents, and that he signed it with his mark, relying entirely upon said representa- tion ; that he is now informed that it was a deed of conveyance of his whole estate to the defendant, for the nominal consideration of one hundred dollars ; that the consideration was entirely nominal, that nothing was ever paid or agreed to he paid by the defendant for the land, and that the defendant never agreed to buy, and the plaintiff never agreed to sell or convey the land to him, or had any consideration or thought about such a sale ; that the defendant now assumed to own the entire estate conveyed in said deed, and had encumbered it with two mortgages [described in th'e bill] en- tirely without the consent, knowledge or acquiescence of the plain- tiff, and was about to convey away the whole estate, as the plaintiff feared or had reason to believe.] The bill prayed that the defendant might be restrained from further mortgaging, encumbering or conveying the land, or exer- cising any act of ownership over it ; that the deed to the defendant might be given up and cancelled, and for further relief. _ Dodd vs. aoJc, 11 Gray, 495; 3 Dan. Oh. Pr. (Perk.) 1987. Bill to annul a contract for fraud. That on the day of , 18 — , the plaintiff was the owner of a tract of land containing acres, lying in H county ; that the plaintiff being then old, infirm and blind, and by reason thereof, incapacitated from attending properly to business, the defendants, on that day, fraudulently taking advantage of the plaintiff's said incapacity, procured him to sign a certain writing without paying him any consideration therefor, and which writing they falsely and fraudulently represented to be a mere matter of form ; that the plaintiff has since, on the day of , 18 — , applied to the said defendants for said writing, or for information as to the contents thereof, but the defendants refused to allow him to see said writing or to give him any information concerning the same ; that, as the plaintiff is informed and believes the said writing is under seal and is a deed of said premises, and conveys the same or some interest therein to the defendants, and that they intend to use the same for their own benefit and to the prejudice of the plain- tiff;' that plaintiff fears the said defendants will convey in trust, mortgage or sell and convey the said property, which will be greatly to his prejudice. [Pray that the court declare the conveyance void, and decree that defendants produce said writing and deliver it up to be can- 's Dan. Ch. Pr. (Perk,), 1988. 648 SUITS IN EQUITY. celled; and that meanwhile defendants may he injoined and re- strained from conveying in trust, mortgaging or selling and con- veying the property, or any part of it, and for general relief.] Modern English form of prayer in a bill seeking an account of partnership dealings, receiver and injunction. 1. That an account may be taken by and under the decree and direction of this honorable court, of all the said partnership deal- ings and transactions between the plaintiff and the defendant, and that what shall appear thereon from the defendant may be decreed to be paid by him. 2. That a proper person may be appointed to receive, collect and get in all the outstanding debts and moneys due to or on account of the said partnership business or concern, and also to take pos- session of all the effects and property of or belonging to the said partnership. 3. That the defendant may be ordered to deliver up to such per- son all the effects and property of or belonging to the said partner- ship in his possession or power, and also all books of account, ac- counts, receipts, vouchers and papers of or belonging to the said partnership ; and that the defendant may be restrained, by the order and injunction of this honorable court, from demanding, re- ceiving, or obtaining possession of any debts, moneys or property due or belonging to the said partnership ; and also from in any manner intermeddling with the books, papers, bills, or accounts of the said partnership ; and that the said effects and property of or belonging to the said partnership may be sold and converted into money by and under the direction of this honorable court. 4. That out of the share of the defendant in the produce there- of, what shall be found due to the plaintiff in respect of the moneys of the partnership so improperly applied by the defendant as aforesaid, may be made good to the plaintiff. 5. That all such farther directions as may be necessary may be given. Modern English form of bill by creditor against devisees in trust and executors of testator. TITLE OF CAUSE. To, &c., Humbly complaining, showebh unto his Lordship, J. S., &c., of, &c., the above-natned plaintiff on behalf, &c. : 1. That the said W. W., deceased, was on, &o., indebted to the plaintiff in the sum of two hundred and eighty pounds upon the INJUNCTION. 649 balance of accounts then settled by and between the plaintiff and the said W. W., deceased. 2. The said W. W., deceased, by his promissory note, dated, &c., two months after date, promised to pay the plaintiff the sum of two hundred and eighty pounds. 3. The said last-mentioned promissory note was given to secure the amount due to the plaintiff as mentioned in the first paragraph of this bill. 4. The said sum of £ , &c., remained justly due and payable to the plaintiff from the said W. W., deceased, at the time of his decease. 5. The said W. W., deceased, made his will, dated, &c. (and which was dully executed and attested), and the said testator thereby devised all his real estate and personal estate to the de- fendants, J. A. and E. B., their heirs, executors, administrators, and assigns, upon trust to sell and collect , and get in the same. [The trusts of the money arising from such sale being declared for the benefit of the defendant, W. B., if he should die before twenty-five years without leaving issue.] 6. The testator, W. W., died in, &c,, without having altered or revoked his said will, leaving the several persons named in his said will him surviving. 7. The said will of the'testator was duly proved, &c., by the de- fendants, J. A. and E. B., who thereby became, and now are, his sole legal personal representatives. 8. The testator was, at the time of his death, indebted to several persons other than the plaintiff. 9. The testator was, at the time of his death, possessed or en- titled of or to personal estate of considerable value. 10. The testator also died seized or entitled of or to divers lands, messuages, and other real estate, situate in the county of Gloucester, and elsewhere in England. 11. The defendants, J. A. and E. B., have, since the death of the said testator, possessed themselves of the whole of the personal es- tate of the said testator, and, as the devisees in trust or trustees oi 'said will, they entered into and are now in the possession or receipt of the rents and profits of his real estate, and they have received a large sum of money in respect of the real and personail estate of the testator. 82 660 SUITS IN EQUITY. 12. The plaintiff has, by himself and his solicitor, made divers applications to the defendants, J. A. and E. B., and requested them to pay what is due to him for principal and interest in respect of his said claim, but they have refused so to do. 13. The said last-named defendants, however, allege that the • personal estate of the said testator is insuflScient to pay his debts, whereas the plaintiff insists that if such allegation be true, yet that the personal estate of the testator, together with his real estate, is more than sufficient for payment of all his debts and funeral and testamentary expenses. 14. The said defendants also allege that the real estate of the testator is subject to certain mortgages or incumbrances, and that they have been unable to sell the said real estate or any part thereof. 15. The defendant, W. B., has attained the age of twenty-five years. 16. The defendant, W. B., claims to be interested in the matters in question in this suit, and insists that he is a necessary party thereto. PEAYEE. The plaintiff prays as follows : 1. That an account may be taken of what is due to the plaintiff in respect of his said debt so due and owing to him from the said testator, W. W., as aforesaid, and of all other debts which were owing by the testator at the time of his death, and which still re- main unpaid. 2. That the trusts of the said testator's will may be carried into execution by and under the direction and decree of this honorable court. 3. That an account may be taken of the personal estate and effects of the testator received by the said defendants, J. A. and E; B., or either of. them, or by any other person or persons, by their or either of their order, or for their or either of their use, and that the said estate may be applied in payment of the testator's debts and funeral expenses, and that the following further accounts and inquiries may be taken and made (that is to say) — 4. An inquiry of or to what real estate the testator was seized AMENDED BILLS. 651 -or entitled at the respective timeB of the date of his will and of his death. 5. An inquiry whether any and what incumbrances affect the said testator's real estate. 6. An account of the rents and profits of the said testator's real •estate received by the defendants, J. A. and E. B., or either of them, or by any person by their or' either of their order, or for their or either of their use. 7. That the real estate of the said testator, or a sufficient part ■thereof, may be sold, and that the rents and produce thereof may be applied in payment of the -testator's aebts. 8. That the defendants, J. A. and E. B., may, if necessary, be restrained by the injunction of this honorable court from retaining, receiving, or collecting any of the moneys, debts, or other outstand- ing personal estate of the testator, and from receiving the rents and profits of the real estate of the testator, and that some proper per- son may be appointed to receive all the outstanding personal es- tate and effects of the testator, and to collect and get in the debts ■owing him. Of amended bills, supplemental bills and bills of revivor. 557. This chapter will be devoted to the considera- tion of amended Mils, supplemental bills, bills of re- vivor and to the defences to the same. Amended bills. 558. When a plaintiff has filed his bill and is ad- vised that the same does not contain such material facts, or make all such persons parties as are neces- sary to enable the court to grant him the required relief, he may change the bill by inserting new mat- 652 SUITS IN EQUITY. ter or by adding such persons as shall be deemed necessary as parties ; or, in case the original bill shall be found to contain matter not relevant or no- longer necessary for plaintiflf 's case, or parties which may be dispensed with, the same may be struck out,, and the original bill thus changed is termed an amended bill. 1 Dan. Ch. Pr. (Perk.) 402. The proper functions of an amended bill are to bring before the court other parties and to explain and set forth more fully the matters of the original bill or matters connected with the original, bill which should be brought into the litigation. An amended bill is not to be filed if it shows that the original bill is groundless or presents new and distinct matters of controversy. Lambert d als^ vs. Jones (& ah., 2 P. & H. 144. " As a general rule, the court will at any time before the hear- ing grant leave to amend where the bill is defective as to parties or- in the mistake or omission of any fact or circumstance connected with the substance of the bill " [but not forming the substance itself ], " or not repugnant thereto. This amendment may be made by common order before answer or demurrer, and afterwards by leave of the court." Christian, J., in Holland, <£c., vs. Trotter, 22. Grat. 136. See Mason vs. Nelson, 11 Leigh 227 ; Parrill vs. Mc- Kinley, 9 Grat. 1; Stevenson vs. Taverners, 9 Grat. 398; Id. 372; Smith vs. Smith, 4 Eand. 95 ; Boyhins devisees vs. Smith, 3 Munf. 102; Sutton vs. Oatewood, dc, 6 Munf. 398. But where a motion was made to amend in a case in which the- matters sought to be inserted were known to the plaintiff at the time he commenced his suit, and no excuse was given for not in- serting them then, and the answer in which they were stated had been long since filed, and no cause was shown for not having ap- plied sooner, the application to amend was refused. Whitmarsh vs. Campbell, dc, 2 Paige, 67. Mr. Eobinson adds : " in this case it is proper to remark the amendments were also refused upon tha merits." 2 Eob. Pr. (old), 294. See likewise Kirby, do., vs. Thompson, dc, 6 John. Gh. E., 79. as to unreasonable delay.' When ' Mr. Eobinson states farther rules in relation to amendments of bill : " After the answer has been replied to, the motion will be to withdraw the replica- tion and amend the bill. Matteux va. MacKreath, 1 Ves., Jr., 142. And then the plaintiff should satisfy the court of the materiality of the amendments, and show why the matter introduced was not stated before. Longman, &c., vs. Galleford, 3 Anstr, 807. If the replication has been filed several months, the motion will be denied unless these things are shown. Brown vs. Bicketts, AMENDED BILLS. 651 the plaintiflf haa an interest in the subject matter of the suit, the bil may be amended, and other persons having the same interest ma] 'be joined as coplaintiffs. Ooffman vs. Sangston, 21 Grat., 263. £ plaintiff, who was a guardian, filed a bill in his own name, he shoulc have filed it in the name of the ward by his next friend, to obtaii possession of the ward's estate ; there were other defects in thi bill. He was permitted to amend. Sillings vs. Bwmgardner, \ 'Grat., 273. 559. In the Virginia State courts, before answer the face of the original bill is sometimes altered oi added to ; after answer always, and sometimes befor( •answer, the new matter is introduced in a separat< paper styled an amended bill. See 28th Rule U. S ■Supreme Court. The amendments are considered ai incorporated in and forming part of the original bill Hurd, &c., vs. Everett, 1 Paige 124. 560. Matters occurring subsequently to the origi nal bill are, in strict practice, not usually introducec (fee, 2 John. Ch. E., 425. In Thorn, &c., vs. Oermand, 4 John. Ch. Kep., 363 the plaintiffs, before filing the original bill, knew the existence of the matte ■sought to be introduced into the amended bill, and before the motion wa made a commisBion had issued to take depositions, and one witness was ex amined. The motion was denied." And he continues: "Greater strictnee is required as to amending injunction bills. The ordinary rules as to amend ing bills do not apply to injunction bills, or other bills which are sworn tc Parlcer, &c., vs. Orant, &c., 1 John. Ch. E., 434 ; Benwick vs. Wilson, tSsc, John. Ch. E., 81. When the complainant in an injunction bill applies t amend without prejudice to the injunction, he must state the proposed amend ments distinctly, so that the court may see that they are merely in additioi to the original bill and not inconsistent therewith, he must render a valid ex cuse for not incorporating them in the original bill ; it must appear that th application to amend is made as soon as the necessity of such amendment i discovered ; and the complainant must swear to the truth of the several mat ters proposed to be inserted as amendments. Badgers, &c., vs. Badgers, dec. 1 Paige, 424." Whether these strict rules would be applied in the Virginia courts may b tseriously doubted. The practice in allowing amendments in them is exceed ingly liberal. 654 SUITS IN EQUITY. into the cause by an amended but by a supplemental bill ; yet there are cases in which such amendments are allowed, e. g., when the plaintiff, having an in- choate right at the time of exhibiting the original bill merely requiring a formal act to perfect it, is permitted by amendment to introduce the fact that it has been perfected. A plaintiff sued for the specific performance of a contract for the exchange of lands. It appeared in the progress of the cause that the defendant could not specifically perform the contract. It was held that the plaintiff might amend his bill and ask a rescission of' the contract, and for such other relief as under the circumstances he was entitled to. Parrill vs. McKinley, 9 Grat. 1. A party having an interest in the subject of a suit sues in a wrong character ; his bill should not be dismissed, but he should have leave to amend and make the propey parties. Billings <& als. vs. Bumgardner, g'dn, 9 Grat. 273. In this case a husband of one distributee, who was also one of the personal representatives, and guardian of the other distributee, filed a bill in his own name as guardian of the infant distributee against the other personal representative and the "sureties^ charging that the personal repre- sentative was indebted to the estate and insolvent; and asking a decree against the sureties. There was a decree accordingly in the lower court. Upon appeal the decree was reversed for want of proper parties; but the husband having an interest in right of his wife, the suit was not dismissed, but was sent back that he might amend his bill and make other partise. Ibid. 661. A plaintiff may, in the Virginia State courts,, of right amend his bill before the defendant's ap- pearance, and notwithstanding such appearance may, at any time in the vacation of the court wherein the suit is pending, file in the clerk's office an amended or supplemental bill, or bill of revivor. Code 1873, ch. 167, § 15. On filing the bill, in vacation, such proceedings may be had as if leave to file it had been previously obtained in court, but the court, on the motion of a defendant, made at the term to which AMENDED BILLS. 6t process to answer the same is returned executed c him, or if it be returnable to rules, at the first ten after it is so returned, may dismiss such amended ( supplemental bill, or bill of revivor. liid. In tl United States Circuit Courts, the practice is regulate by the 28th, 29th and 46th rules of practice. The; rules are as follows : 28. " The plaintiff shall be at liberty as matter of course and witho payment of costs, to amend his bill in any matters whatsoever, befo any copy has been taken out of the clerk's office, and in any sms matters afterwards, such as filling blanks, correcting errors of dat( misnomer of parties, misdescription of premises, clerical erroi and generally in matters of form. But if he amend in a materi point (as he may do of course), after a copy has been so take before any answer or plea, or demurrer to the bill, he shall pay the defendant the costs occasioned thereby, and shall witho delay furnish him a fair copy thereof, free of expense, with suitab references to the places where the same are to be inserted, and the amendments are numerous, he shall furnish in like manner the defendants a copy of the whole bill as amended, and if the be more than one defendant, a copy shall be furnished to ea( defendant affected thereby." 29. "After an answer or plea or demurrer is put in, and befo: replication, the defendant may, upon motion or petition, withoi notice, obtain an order from any judge of the cpurt, to amend h bill on or before the next succeeding rule day, upon payment costs, or without payment of costs, as- the court or a judge there may in his discretion direct. But after replication filed, the plainti shall not be permitted to withdraw it and to amend his bill, exce] upon a special order of a judge of the court, upon motion or pet . tion, after due notice to the other party, and upon proof by affidavi that the same is not made for the purpose of vexation or delay, ( that the matter of the proposed amendment is material and coui not with reasonable diligence have been sooner introduced into tl bill, and upon the plaintiff's submitting to such other terms as me be imposed by the judge for speeding the cause."' 46. " In every case where an amendment shall be made aft answer filed, the defendant shall put in a new or supplementi answer, on or before the next succeeding rule day after that c which the amendment or amended bill is filed, unless the tin therefor is enlarged or otherwise ordered by a judge of the coun and upon his default the like proceedings may be had as in cases an omission to put in an answer." 656 SUITS IN EQUITY. After the cause is regularly set for hearing, a plaintiff could not by amendment introduce new charges or put a material fact in issue which was not in issue before : this should be done by a sup- plemental bill. Ch. Taylor in Pleasants vs. Logan, 4 H. & M. 489. In Baker vs. Baker d als., 3 Munf. 222, leave was given an ex- ecutor who, in a bill against his co-executors and the legatees, had failed to state his claim with reasonable certainty against his testa- tor's estate, to amend his bill and make a fuller statement of hia claim. A cause was ready for a decision as to substantial parties at a regular term of the court. At a following intermediate term, the plaintiff amended his bill to make a formal party, who came in and filed his answer at the same term and consented that the cause might come on to be heard. The court, it was held, might hear the cause at the intermediate term, though it was objected to by the substantial defendant, as to whom it was ready at' the preceding regular term. Bohinson vs. Day, 5 Grat. 55. In Jamison's adm'ors vs. Beshields, 3 Grat., 4, the plaintiff had shown a right to relief against parties before the court, but had omitted to make other necessary parties. The appellate court would not dismiss the bill, but sent the cause back with lealve to amend the bill and add the necessary parties. 562. The rule as to amending bills in equity in the Circuit Courts of the United States was examined in Shields vs. Barrow, 17 How., 130. The court held that under the privilege of amending, the plaintiff should not be permitted to make a new and wholly different case from that made in the bill. Granting leave to amend is a matter of discretion with the Cir- cuit Court, and is not open to examination on appeal. Sheets vs. Selden, 7 Wal., 416. After demurrer sustained to the bill, the plaintiff is not entitled as of right to amend the bill, it is in the discretion of the court to grant or to refuse him leave to do so. National Bank vs. Carpenter, 11 Otto., 567.' After a final decree, amendments which changed the character of the bill were allowed, the circumstances being peculiar and the cause having been in fact tried exactly as it would have been if the bill had originally been in the amended form. The Tremolo Patent, 23 Wal. 518. 'And the decision will not be reviewed in the appellate court if the record does not show what amendment was proposed. Nat. B'k vs. Carpenter, 11 Otto., 567. AMENDED BILLS. 657 Sometlmea a case is remanded from the Supreme Court with the •direction to amend the bill and bring in proper parties. Lewis vs. Darling, 16 How. 1. Eight years after a bill had been filed, and on the day it was dis- jnissed on a final hearing upon the pleadings and proofs, an amended bill was filed without leave. The Supreme Court held that it must he disregarded in the consideration of the case by that court. Terry vs. Mcl/wte, 13 Otto, 442. After a cause has been heard and a case for relief made out, but not the case disclosed by the bill, the court has the power to allow ^n amendment of the pleadings on terms that the party not in fault has no reasonable ground to object to. Neale vs. Neales, 9 Wal. 1. The objection that all the parties to a supplemental bill were necessary parties to an amended bill, cannot be made for the first time in the United States Supreme Court. McBurney vs. Ourson, ■9 Otto, 567. 563. An amendment to a bill authorizes a defen- dant, though not required to answer, to put in an answer making an entirely new defence and contra- dicting his former answer. Dan. Ch. Pr. (Perk.) 411 ; Trust & F. Ins. Co. vs. Jenkins, 8 Paige 589. 564. By an amended bill persons not before parties to the suit were made defendants. The suit was brought in 1808, the amended bill was filed in 1815. The new defendants alleged an adverse possession of the land for more than twenty years. That posses- sion was proved to have been taken in 1788 or 1789. It was insisted that the amended bill had relation to the commencement of the suit and consequently that the statute could not bar. But the Supreme Court was of opinion that until the defendants in posses- sion were made parties to the suit it could not be considered as having been commenced against them. Miller's heirs vs. Mclntyres, 6 Pet. 61 ; 2 Rob. Pr. (old) 253, 254. 83 658 SUITS IN EQUITY. 565. When there is a bill or cross-bill, and the plaintiff in the original suit amends his bill before- answer, he will lose his priority of suit and his right to have an answer before he is called upon to answer the cross bill. 1 Dan. Ch. Pr. (old) 609. See Code 1873, ch. 167, sec, 16 ; McConnico vs. Moseley, 4 Call, 360 ; Hudson & ah. vs. Hudson^ s ex'or, 3 Rand. 117.' ^ Although in part a repetition of some things already said, the following, valuable note in 1 Dan. Ch. Pr. (Perk.) 402 is printed here. The rules announced are taken from reports of cases decided in other States than Virginia ; yet. they may afford assistance in ascertaining when, and what, amendments may be made in the Virginia courts : " Amendments being regarded only with reference to the furtherance of jus- tice, as a general rule, are in the discretion of the court, especially in matters of mere form. Smith vs. Bdbcock, 3 Sumn., 410 ; Oarlick vs. Strong, 3 Paige, 440 ; McElwain vs. Willis, 3 Paige, 505. Amendments are therefore always allowed with great liberality until the proofs are closed. Cock vs. JEuans, 9' Terger, 287, except where the bill is upon oath. Gock vs. Svans, 9 Yerger, 287 ; Cunningham vs. Pell, 6 Paige, 655. In case the bill is upon oath, there- is greater caution exercised in reference to amendments. lb., VerpUmck vs.. Mer. Ins. Co., 1 Edw„ 46 , Swift vs. Echford, 6 Paige 22 ; Lloyd ys. Brewster,. 4 Paige, 538; Parker vs. Grant, 1 John. Ch., 434; Eogers ys. Rogers, 1 Paige, 424; Whitmarshvi. CcwrapieZi, 2 Paige, 67. So where the object of the amend- ment is to let in new facts or defences, there is greater reluctance on the part of the court to allow the amendment where it depends upon parol proof than where it depends on written instruments omitted by accident or mistake^ Smith vs. Babcock, 3 Sumner, 410 ; Calloway vs. Dohson, 1 Brock., 119. And the court will not allow amendments by inserting facts known to the plain- tiff at the time of filing his bill, unless some excuse is given for the omission. Whitmarsh vs. Campbell, 2 Paige, 67 ; Prescott vs. JSubbell, 1 Hill Ch., 217.. Nor where' the matter of the proposed amendment might with reasonable diligence have been inserted in the original bill. North Amer. Coal- Co. vs. Dyett, 2 Edw. Ch. 115." " When a plaintiff wishes to amend a sworn bill, he must state the proposett amendments distinctly, so that the court can see that they are merely in. addition to the original bill and not inconsistent therewith. He must also- swear to the truth of the proposed amendments, and render a valid excuse for not incorporating them in the original bill ; and the application to amend must be made as soon as the necessity for, such amendment is discovered. Sogers fa. Rogers, 1 Paige, 424 ; Whitmarsh vs. Campbell, 2 Paige, 67 ; Ver- planck vs. Mere. Ins. Co., 1 Edw., 46 ; Altree vs. Horden, 3 Lond. Jur., 81." SUPPLEMENTAL BILLS. 65^ Supplemental bills. 666. Supplemental bills are used to remedy de- fects existing at the time of filing the original bill, and it is too late to correqt them by amendment, or when they have occurred since the filing of the orig- inal bill. 3 Dan. Ch. Pr. (old) 150. A plaintiff cannot, however, support a bad title by acquiring another after the filing of the original bill and then bringing it forward by a supplemental bill. 3 Dan., Ch. Pr. (old) 153. 567. Supplemental bills will not be allowed for the purpose of introducing a completely new case ; they must be in aid of that which the court has al- ready done ; still less can they be maintained for the purpose of adding to the decree, what, upon the- hearing, the court has excluded from it. 3 Dan. Ch. Pr. (old), 159. In Belion vs. Apperson, 26 Grat. 207, the original bill was 'filed by Belton to enjoin a sale of real estate by Apperson, the trustee in a deed given to secure the payment of a negotiable note for $1,300. The plaintiff stated in his bill that he supposed Campbell was the owner of the note and charged usury in it and set it out. Apperson and Campbell were made defendants ; and they were called upon to answer on oath, and disclose who was the holder ;. there was a prayer for injunction and that the note should be de- livered up and cancelled and Apperson required to reconvey the- property to the trustee to whom the estate was conveyed for the benefit of Belton'e wife and children. The injunction was granted, and in June, 1869, Apperson and Campbell answered. Campbell said he was a broker and the note was put in his hands for sale and he sold it to Shriver, and he had no interest in it. Both Campbell and Apperson said they did not believe there was usury in the transaction ; it was a sale not a loan. In December ^ 1871, Belton and his wife and infant children, by Belton their next friend,' asked leave to file an amended and supplemental bill.' la €60 SUITS IN EQUITY. this bill they are plaintiffi, and Shriver is made a defendant with Oampbell and Apperson ; they set out the bills and answers, state a conveyance of the property by Belton to a trustee for Belton's wife for life, remainder to the children, they charge usury in the note, disclaim any discovery from the defendants and ask for an issue, and if they prove the usury that the note may be decilared void, the injunction perpetuated, and for general relief. The amended and •supplemental bill was most evidently drawn with reference to the 10th section of the act. Code 1849, chap. 141 ; it was contended that the original bill was under the 7th section. The court held that the amended and supplemental bill was properly filed, that while a' plaintiff was not permitted to make a new case by an amended bill he might by his amendments so alter the frame and structure of the bill as to obtain an entirely different relief from that asked for originally ; that as Shriver was not a party to the original bill, and as the plaintiffs might at once file a new bill against him, the delay in tendering the amended bill could not prejudice'his interests; that Campbell and Apperson having no in- terest in the note the case was virtually ended as to them, and Houston not being a party to the original bill the answer of Camp- bell and Apperson could not be read for him either under the original or amended bill, and the amended bill under the 10th sec- tion of the act might be filed. In Linn (& als'. vs. Carson's adm'or & als., 32 Grat. 170, the amended bill was held not to be repugnant to the original bill but as auxiliary to it in the presentation of the case more fully and ac- curately with additional averments, and the amended bill was sus- tained. In McComb vs. Lohdell (& als., 32 Grat. 185, the supplemental bill set up a new contract of partnership entirely different from that set up in the original bill. The supplemental bill was de- murrable. Mr. Barton thinks this case confirms Lambert vs. Jones, 2 P. & H. 163. In Swing's admor vs. Ferguson's admor <£ als., 83 Grat. 548, the bill havi.ng been dismissed on demurrer, leave was given to file an amended bill. Some of the original plaintiffs did not unite in the amended bill. This was held not to be a departure from the original bill. And the amended bill being filed in the name of some of the original parties and of creditors who had come in by petition and only setting out more fully the nature of their claims and the character of the bill as a creditors' bill, this was not a de- parture from the original bill, but was held to be a valid amended bUl. In Smith, <£c., vs. Smith, dc, 4 Rand., 95, certain legatees signed an agreement to submit to an award, others did not ; there was an award by the arbitrators awarding the title to the slaves in ques- tion to "the heirs of Thomas Smith, deceased." The plaintiffs SUPPLEMENTAL BILLS. 661 claimed under this award their proportion of the slaves. They set forth the facts in their bill, but prayed no relief either general or special. The defendants answered, resisting the award on the grounds — let. That all parties in interest had not signed the sub- mission. 2nd. That the award was contrary to law. The Chancery Court dismissed the bill. On appeal, the Supreme Court of Appeals held that the award was binding as to those who signed, that a court of equity was the proper forum for a partition of the property under the circumstances, and reversed the decree, dismiss- ing the bill with direction to the Chancery Court to permit the plaintiffs to amend their bill, setting out their case by showing how many of the representatives of Thomas Smith would have been en- titled under this award, had they signed the submission, and thereby established the extent of their own interest in the subject, under the award. 567a. It is not every fact occurring subsequent to the filing of the original bill which renders a supple- mental bill necessary ; such facts only as are mate- rial, e. g., such as alter the interests of the parties or necessitate farther discovery, require the filing of a supplemental bill.^ If a supplemental bill be filed without necessity, it may be demurred to. See 3. Dan. Ch. Pr. (old) 160. The court held in Bechwith vs. Avery's adm'or, dc, 31 Grat., 533, that it was a case for a supplemental bill. 568. A sole plaintiff, assigning his whole interest, or being deprived of it by an event subsequent to the institution of the suit, the alienee or party claiming his title must proceed not by a supplemental bill, hut hy an original bill in the nature of a supplemental bill. 3 Dan, Ch. Pr, (old) 164. An important dis- *If a plaintiff, when his cause is in sach a state that he cannot amend his bill, discovers new matter which may tend to show that he is entitled to the relief prayed by his bill, he may file a supplemental bill for the purpose of putting the new matter in issue. Orompton vs. Wbmbwell, 4 Sim., 628 ; 6 Eng. Cond. Ch. Eep„ 286. €62 SUITS IN EQUITY. tinction, because new defences mav be made to the new suit, and the depositions taken and proceedings had in the former suit cannot be used in the new. See Ibid. 569. A supplemental bill usually states, in the Vir- ginia State courts, the filing of the original bill and the proceedings thereon. Neither in the Virginia State courts nor in the United States Circuit Courts, is it necessary to set forth in the supplemental bill any of the statements in the original bill, unless the special circumstances of the case require it.' If the supplemental bill is occasioned by an event subsequent to the original bill, it states that event and the con- sequent alteration of parties therein, and it prays that the defendants may appear and answer its charges. 3 Dan. Ch. Pr. (old), 178. If the supplemental bill has been rendered necessary by the alter- ation or acquisition of interest happening to a defendant, or a person comes into esse, who is necessary to be made a defendant, the sup- plemental bill may be exhibited by the plaintiff in the original suit against such person alone, and may pray a decree upon the partic- ular supplemental matter alleged against that person only, unless, which is frequently the case, the interests of the other defendants may be affected by that decree, in which case such other defen- dants may be made parties. 3 Dan. Oh. Pr. (old), 179. When a supplemental bill is used merely for bringing a formal party before the court as a defendant, the defendants to the original bill need not be made parties. Ensworth vs. Lambert, 4 John. Ch., 605. See also Mb Gown vs. Yorks, 6 John. Oh., 450. 570. A supplemental bill generally calls upon the defendant to answer the supplemental matter only ; if, however, it is occasioned by the transmission of the interest of a defendant who has not answered the 5See 58th Rule U. S. Sup. C't.' BILLS OF REVIVOR. 663 ■original bill, and it is necessary to have a discovery from the new defendant of the matters in the origi- nal bill, it may pray that the defendant may answer the original bill. 3 Dan. Ch. Pr. (old), 181. , Mr. Justice Story states, in his Pleadings in Eq., § 337e, that A supplemental bill may be brought on behalf of the defendant in the suit^that the defendant may, when the matter is newly dis- covered evidence on the part of the defendant, after the cause is at issue, or after publication passed, or even after a hearing or" decree, by a petition to file a supplemental bill obtain relief. See JBaJcer, dc.vB. Whiting, 1 Stoiy, 218; Barrington vb. O'Brien, 2 Ball & Beat., 140 ; Blandish vs.' Badley, 2 Atk., 177 ; Qould vs. Tancred, 2 Atk., 533. 571. The practice in the United States Circuit Courts in relation to supplemental bills is regulated by the 57 th and 58th rule of the United States Su- preme Court. As to the practice in the Virginia State courts, see Code of 1873, ch. 167, sec. 15, cited in section 561, p. 654, ante. The 57th and 58th rules of practice in the United States Courts are as follows : • " 57. Whenever any suit in equity shall become defective from any «vent happening after the filing of the bill (as, for example, by a change of interest in the parties), or for any other reason, a supplemental bm, or a bill in the nature of a supplemental bill, may be neces- ■sary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead or answer thereto, on the next succeeding rule day after the supple- mental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court." " 58. It shall not be necessary in any bill of revivor, or supple- mental bill to set forth any of the statements in the original suit unless the special circumstances of the case may require it." Bills of revivor. 572. When a suit, perfect in its original formation, 664 SUITS IN EQUITY. afterwards becomes discontinued or imperfect hj abatement, the general method of continuing it or of remedying the defects in tjie English courts and in the United States Circuit Courts is by bill of revivor." As we have seen in the Virginia State courts, thfr writ of scirefacias is, in many cases, a sufficient sub- stitute for the bill of revivor.' 573. It is not every death of a party to a suit which occasions such abatement as will suspend the- proceedings ; if the interest of the party dying so de- termines that it can no longer affect the suit and no. person becomes entitled thereupon to the same inter- est, or if the whole interest of the party dying . sur- vives to another party, the suit may go on without revivor. 3 Dan. Ch. Pr. (old), 202. 674. If a bill of revivor seeks merely to revive the- suit, it prays simply for a subpoena to revive ; if it requires an answer, as in the case of a bill against an executor requiring him to admit assets, it should be to revive and answer. 3 Dan. Ch. Pr. (old), 215. See 56 Rule U. S. Supreme Court. See Calvert on Parties, 104 et seq., Metcalfe vs. Metcalfe, L Kekn, 79. Bills of revivor and supplement. 575. These are bills combining the characteristics^ of bills of revivor with those of supplemental bills. Defences to amended hills, &c. 576. To these several bills the defendant may, as « 56th rule U. S. Sup. Ot. ' See. 87, pp. 125, 126, ante. BILLS OF REVIVOR. 665 in the case of original bills, plead, answer or de- mur f and while many of the causes of demurrer or plea which apply to an original bill will apply to these bills, there are grounds of defence solely appli- cable to such bills. Thus, if the plaintiff files a sup- plemental bill [or an amended and supplemental bill] claiming the same matter as in an original bill, but upon a title totally distinct, the defendant may demur. 3 Dan. Ch. Pr. (old) 183. See section 565, ante. Where a plaintiff had in the first instance sued without good title, which he afterwards acquired and endeavored to make effec- tive by amending hie bill, it was held liable to demurrer, and he was required to pay full costs. Pilldngton vs. Wignall, 2 Madd. 244. 577. A bill of revivor also is liable to demurrer or plea for reasons peculiar to its character. If ii does not shew sufiicient ground to revive the suit oi any part of it, it is demurrable : if tbere is not suf- ficient ground to revive and the fact is not apparent on the bill, the defendant may raise the defence by plea. 3 Dan. Ch. Pr. (old), 218. The defence that the plaintiff is not entitled to revive should be raised by demurrer or plea ; it cannot be made by answer, Yet, if at the hearing, it appears that the plaintiff has no title to revive, the suit will be dismissed. Harris vs. Pollard, 3 P, Wms., 348. 578. An' answer, whether required by the plaintifl or not, may be filed to a bill of revivor. 3 Dan. Ch. Pr. (old) , 220. An answer to a bill of revivor is not impertinent, if it states iriatters of defence which * See sec. 571 ante, p. 663, as to time of demurring, Ac, to these bills ir the United States Circuit Courts. 84 666 SUITS IN EQUITY. have occurred since the answer to the original bill was filed, although such matters do not affect the title of the plaintiff to revive. 3 Dan. Ch. Pr. (old) 220. 578 a. These several bills, pleas, answers and de- murrers have the same general form with that already pointed out in regard to original bills and the defences thereto, and should be accompanied by the same formalities in reference to signing, filing, &c. The following are forms of an amended bill, •and of a bill of revivor : Form of amended bill. To the honourable judge, &c. The amended bill of your complainant R. B., respectfully repre- flents that he heretofore exhibited in this court his original bill of complaint again8,t B. [setting forth the original bill, after which state the matter of amendment, &c.] To the end therefore that the said M. M. and L. L. may severally answer all and every the matters and things herein charged by way of amendment, and that they may discover and set forth, &c., [here add interroga- tories]. And that your complainant may have full and general relief in the premises such as the nature of his case may require. And your complainant will ever pray, &c. A. M.,p. q. Form of bill of revivor.^ To the honorable judge of the court of . Com- plaining, sheweth unto the court your complainant, I. B., that your complainant heretofore exhibited in this court a bill of complaint against E. J., George R., and Mary his wife, and L. 0. and Jane C, his wife, praying that (here state prayer of bill) ; and your complainant farther sheweth that the said defendants to the said bill afterwards appeared and put in their answers thereto and your »See 57th Rule U. S. Sup. Court. BILLS OF REVIVOR. 667 •complainant thereafter by leave of court amended his bill. And your complainant farther sheweth unto the court that before any answer was put in by the defendants to the said amended bill or any farther proceedings had in the cause the said Mary, the wife of George R., died leaving three children her .surviving, her only heirs at law, to-wit : James E., Robert R. and Virginia R., and by the death of the said Mary the said suit -became abated, and your -complainant is advised that the said suit and proceedings should «tand revived against the said James R., Robert R. and^Virginia R., and be in the same plight and condition as they were in at the death of the said Mary R., deceased. To the end, therefore, that the said suit and proceedings as abated as aforesaid may stand and •be revived against the said James R., Robert R. and Virginia R., ^nd be in the same plight and condition as the same were in at the' time of the abatement thereof or that the defendants may show good cause to the contrary. May it please the court to grant unto your complainant* a writ of summons commanding the said James JR., Robert R. and Virginia M. at a certain day personally to he -and appear before this court, then and there to answer and show cause if they can why the said suit and the proceedings therein had should not stand and he revived against them and he in the same plight and condition as the same were in at the time of the abate- ment thereof, and further to stand to and abide such order and de- cree in the premises as to the court shall seem, meet. And your com- plairw/nt will ever pray, <6c. Form of amended and supplemental bill. See p. 102, ante : also section 571, ante p. 663. * If in the United States Circuit Courts say, after star, in lieu of italics : " a writ of summons directed to the said James E., Robert R. and Virginia R. commanding them at a certain day personally to be and appear,'' &,g., &c. (to the end.) 668 SUITS IN EQUITY. CHAPTER V. Bills of interpleader, hills in the nature of a hill of in- terpleader, hills to perpetuate testimony, bills to ex- amine witnesses de bene esse, bills of discovery. Bills of interpleader. 579. The object of the bill of interpleader is to pro- tect a complainant standing in the nature, of an in- nocent stakeholder, 2 Barb. Ch. Pr., 117-118; it will not lie if the plaintiff himself claims any interest in the property in dispute, Ihid ; nor will it lie if the complainant is obliged to admit, that as to either of the defendants he is a wrong doer. 2 Barb. Ch. Pr., 117-118. Shaw vs. Coster, 8 Paige, 339. Nor where it appears that the double claim has been caused by his own act or conduct. Orawshay vs. Thorn- ton, 2 M. & Cr., 1 ; Dishero vs. Harris, 5 DeGr. M. & Gr.,. 439. To maintain the bill, the plaintiff must be un- certain to whom the right belongs ; and if he shows^ no right to compel the defendants to interplead, what- ever rights they may claim, each may demur. Welt Eq. PI., 152, 153 ; Mitf. PL, 48-19. " The definition of interpleader is not and cannot now be dis- puted. It is where the plaintiff says, I have a fund in my posses- sion in which I claim no personal interest, and to which you, the- defendants, set up conflicting claims ; pay me my costs and I wUl bring the fund into court, and you shall contest it between your- selves. The case must be one in which the fund is matter of con- test between two parties, and in which the litigation between these parties will decide all their respective rights with regard to the fund." Lord OoUenham in Hoggart vs. (hitts, 1 Or. & Phil., 204. 580. The bill should show that the plaintiff is a BILLS OF INTERPLEADER. 669 ^stakeholder, having no personal interest in the con- troversy between the parties claiming the funds in his hands, and that their respective claims against him -are of the same nature and character ; that there is some doubt, in point of fact, to which claimant the ■debt or duty belongs, so that he cannot safely pay or render it to one without risk of being liable for the same debt or duty to the other. 2 Barb. Ch. Pr. 120. The bill must relate to a thing in action and not yet passed in rem adjudicatam. See Cornish vs. Tanner, 1 Young & Jer., 333 ; Union B. B. vs. Kew, 2 Md. Oh. Decis, 460. Where an attaching creditor and an assignee both recovered judg- ments against a debtor of an absent defendant, without objection on his part, although he had notice of the assignment before the .judgment in the attachment suit, he could not, after the judgments were obtained, file a bill of interpleader against them to require them to litigate their respective rights to the fund, but was held liable to pay both' judgments. Saseliine vs. Brichey, 16 Grat., 116, When a sherifi" has levied on property on which there are con- flicting claims, he may file a bill of interpleader to settle them. ■Starrs vs. Payne, 4 H. & M., 506. 581. The bill may be filed when there is danger of injury to the plaintiff from the doubtful and con- flicting claims of several defendants, Mohawk & H. R. R. Co. vs. Clute, 4 Paige 392, Mitf. Eq. 49, though no legal proceedings have been actually commenced, Langston vs. Boylston^ 2 Ves. 101, 107, note (1) Xxeorge vs. Pilcher, 28 Grat. 305 ; and though the ■claim of one of the defendants is actionable at law and that of the other in equity, Richards vs. Salter, 6 John. Ch. 445; and it is no objection to the bill, that a suit is pending between the several parties commenced by one of the claimants of the fund. Warrington vs. Wheatstone, 1 Jac. 202 ; 2 Dan. €h. Pr. (Perk.) 1660. 670 SUITS IN EQUITY. 582. To the bill there should be an affidavit that there is no collusion between the plaintiff and any of the other parties. 2 Barb. Ch. Pr., 120 See p. 102,, ante. The absence of this affidavit is a cause of de- murrer. Story's Eq. PL, § 297; 2 Daii. Ch. Pr. (Perk.) 1671 ; Mitf PI. 143. When in behalf of a company, the affidavit should be that to the best of affiant's belief the company does not collude with the defendants. Bignold y^. Audland, 11 Sim. 23. 583. The bill prays conformably with the objects for which it is instituted, that the defendants may in- iterplead, that the court will adjudge the questions in dispute between them, and that the plaintiff may be protected. If any suits at law are instituted against the plaintiff, it prays that such suits may be enjoined, but in general the money must be brought into court before the court will grant the injunction. See Story's Eq. PI. § 297. 584. The defendants may demur if the plaintiff' shows no right to compel them to interplead, or if the bill be without affidavit. They may also answer, admitting or denying the statements of the bilL 2 Barb. Ch. Pr. 123, 136 ; 2 Dan. Ch. Pr. (Perk.) 1674, 1675. The form of demurrer as given in "Willis's Chancery Pleading,, pp. 440, 441, is as follows: "That although the said complainant's bill is on the face thereof a bill of interpleader and prays that this defendant and the other defendants may interplead together con- cerning the matters therein mentioned, and may be restrained by the order and injunction of this honorable court from proceeding, at law against the said complainant, touching such matters, yet the- said complainant has not annexed an affidavit to his said bill, that he does not collude concerning such matters or any of them witk BILLS OF INTERPLEADER. 671 this defendant and the other defendants thereto, or any or either of them, which affidavit ought, as this defendant is advised, according to the rules of this honorable court, to have been mads by the said plaintiff and annexed to his said bill. Wherefore this defendant demands the judgment of this honorable court whether he shall be compelled to make any further or other answer to the said bill or any of the matters and things therein contained, and prays to be hence dismissed with his reasonable costs in this behalf sustained." 585. A decree in an interpleading suit may termi- nate the case as to the plaintiff though the litigation may continue between the defendants by interpleader^ and in that case the cause may proceed without re- vivor notwithstanding the death of the plaintiff. Mitf. PL 60, 49, n ; 2 Dan. Ch. Pr. (Perk.) 1676. Where one of the defendants in a bill of interpleader, in his an- swer, makes a claim against the plaintiff beyond the amount ad- mitted to be due and paid into court, and which is not claimed by the other defendants, he will be permitted to proceed at law to es- tablish his right to that part of the demand which is not in contro- versy with the other defendants. Houghton vs. Kendall, 7 Allen 72, cited 2 Dan. Ch. Pr. (Perk.) 1680. 586. An interpleading bill puts the defendants to contest their respective claims. If at the hearing the question between the defen,dants is ripe for a decision, the court will decide it and make a final decree. If it is not ripe for a decision, as between the defend- ants, the court merely decides that the bill is pro- perly filed, and dismisses the plaintiff with his costs up to that time, and directs an action or an issue, or a reference to a master, to ascertain contested facts as may be best suited to the nature of the case. 2 Dan. Ch. Pr. (Perk.) 1676, Angill vs. Haddin, 16 Ves. 202. Story's Eq. Jur., § 822. 587. There are statutes in Virginia providing for ■672 SUITS IN EQUITY. an interpleader at law : Code 1873, chap. 149, §§ 1, 2, 3. An officer required to levy an execution or warrant of distress or to attach money or property, if a doubt arise whether the money or property is liable to levy or attachment, may require an in- demnifying bond before levying or attaching, and the proceedings are as provided by Code 1873, chap. 149, §§ 4-8. The remedies provided by these ■statutes obviate the necessity of filing bills of inter- pleader in many cases. 588. Bill in the nature of a hill of interjyleader. Although a bill of interpleader, strictly so called, lies only where the party claims no interest in the subject-matter; yet there are many cases where a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights, where there are other conflicting rights be- tween third persons. Thus, if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the seve- ral claimants in the nature of a bill of interpleader for relief. Mohawk & Hud. B. R. Co. vs. Clute, 4 Paige 384 ; Mitchell vs. Hayne, 1 Sim. & Stu. 63, and other cases cited ; 2 Dan. Ch. Pr. (Perk.) 1680. And so it was held in Barden vs. Burns, 6 Ala. 362, that a vendee of personal property might file a bill in the nature of an interpleader against his vendor and a third person who claimed the property, and pray a decree upon their claims, that he might be secure in the payment of the purchase money. BILLS TO PERPETUATE TESTIMONY, &C. 673 Bills to perpetuate testimony. 589. See as to bills to perpetuate testimony 2 Barb. ■Ch. Pr., 137-142. Such bills accomplish their pur- pose when the testimony is taken and preserved ; the bills are not brought to a hearing. 2 Barb. Ch. Pr., 143. 590. In the Virginia State courts, there is ample provision made for the preservation of testimony without filing such bills. Se6 Code 1873, chap. 172, «ec. 40. Bill to examine witnesses de bene esse. 591. The bill is only sustainable when there is a suit already depending in which the evidence may be used. Its object is to take the testimony of wit- nesses which otherwise may be lost ; e. g., when the witnesses are aged or infirm or about to depart from the State. See 2 Barb. Ch. Pr., 144, 145. 592. The necessity for filing a bill of this kind is obviated by the statutes of Virginia and by the Act of Congress and by the seventieth rule of the United States Supreme Court. See Code 1873, ch, 172, sec. 34, 35, 36, 37. See 70th rule U. S. Sup. Court and Act of Congress, cited in sections 434, 435, pp. 465, 467, ante. Bills of discovery. 592a. These bills have been already referred to on pages 83, 86 ante. 85 674 SUITS IN EQUITY. Cross bills. 593. If a defendant has any relief to pray other than the dismission of the bill, or discovery to seek^ he does so by a bill of his own, called a cross bill. 594. A cross bill may be brought either to obtain a discovery of facts in aid of the defence to the original bill, or to obtain some relief founded on the collateral claims of the party filing it, 2 Barb. Ch. Pr. 127 ; Story's Eq. PL, § 389. Oamochie vs. Christie, 11 Wheat 446, has been cited to sustain the doctrine that where a bill is filed to set aside an agreement or conveyance, the conveyance cannot be confirmed and established without a cross bill by the defendant. The doctrine may be true, but the case cited does not establish it. A defendant is not bound to exhibit a cross bill to get relief, even though the relief is properly the subject of a cross bill, when the matters in controversy are substantially presented by the plead- • ings as they are. Taylor vs. Beale, 4 Grat. 93. A decree .dismissing a bill in equity was entered ; the defendant filed a bill of review. The Special Court of Appeals of Virginia held that the decision to dismiss the bill was in the defendant's favour, and he could not contest it by bill of review or appeal; that if he desired relief he should have filed a cross bill. SopMns vs. Baker's adm'or (& als., 2 P. & H. 110. 595. The cross bill afforded a perfect reciprocity of proof to each party derived from the answers of each, when the rule in equity was that a complainant could not be examined as a witness in the suit. See Story's Eq. PL 390. 596. Sometimes a cross bill is used by a defendant to avail himself of a defence he could not otherwise CROSS BILLS. 67t make. Thus, if the defence has arisen after th( cause is at issue, or there has been an award mad( on a reference after issue joined, a defendant coulc bring them before the court on a cross bill, Cooper's Eq. PL 86, S7 ; Mitf. PL 82. And, in most cases, i cross bill is necessq,ry to enable a defendant to hav( a decree against a co-defendant. See Mitf. PL 81. There cannot be a decree between co-defendants in a cause whei there is no decree in favour of the plaintiff. Ould, do. vs. Myer, (6 als., 23 Grat. 334. In this case there was no cross bill. It was not determined in Kelsey vs. Hobby, 16 Pet. 269, wbethe) a defendant, to avail himself of a release pending a suit in equity should file a cross bill, but it was determined in that case thai where a release by the complainant executed pending a suit ii equity was filed in the cause, and the parties proceeded to tak( evidence in support and impeachment of it, it was too late to objec in the appellate court that a cross bill should have been filed. Moorman vs. Bmoot <& als., 28 Grat. 80, was a suit by S., on( tenant in common of slaves subject to the life estate of his mother against another tenant in common, one M., who had sold the slaves To this suit N. and Y., two other tenants in common, were mad( co-defendants with M. There was a recovery against M. by thi plaintiff, and by the defendants N. and Y. The court held that ii order to set up their claims against M., it was not necessary for N and Y. to file a cross bill. 597. In Tarr vs. Ravenscroft & als., 12 Grrat. 642 the Court of Appeals held that a cross bill was properly filed, and having been filed without objec tion and being answered, and the cause coming on t( be heard on the merits, the objection afterwards . taken not having been made in due time and in th( proper form should ho. disregarded. An answer was treated as a cross bill in Mettert vs. Hagan, Ii Grat., 231, to enable the court to do complete justice in the case. And, in Sayres vs. Wall, 26 Grat., 354, in which there was i petition by the children of Mrs. Sayres, setting out a deed fron their father, Keuben Sayres, to his wife and their rights under it €76 SUITS IN EQUITY. and asking that they might be made defendants in the suit and permitted to defend their rights under the deed, and they were permitted to file their answers without objection by the plaintiffs; it was held that the plaintiflEs could not, afterwards, object, that they were made parties, and that, if it would have been more proper to assert their rights by a cross bill, their petition might be treated as such. But in Washington i?. R. vs. Bradleys, 10 Wallace, 299, a peti- tion filed by " way of a cross bill," which made nobody defen- dant, which prayed for no process and under which no process ^issued, was treated as a nullity by the United States Supreme Court. In Ayres vs. Carver, 17 How., 591, a cross bill was filed by a part of the defendants after answer filed. The United States Supreme Court said, that the matters sought to be brought into controversy between the complainants in the cross bill and their co-defendants in the original bill, did not seem to have any connec- tion with the matters in controversy with the complainant in the •original bill ; and that a cross bill should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitutfe the subject matter of an original, independent suit. In this case the court refer to Shields vs. Barrow, 17 How., 130. See sec. 601. 598. The connection of the matter of a cross bill (in itself either legal or equitable) ' with the subject matter of the original bill gives the court jurisdic- tion of the cross bill, 2 Barb. Ch. Pr., 128, and the - jurisdiction of the cross bill is not ousted by the dis- mission of the original bill. Ibid., Wickliffe vs. Clay, 1 Dana, 589; Magland vs. Broadnax and ah, 29 Orat., 401. In Ragland vs. Broadnax and ah, 29 Grat., 401, all the parties to the original bill were made defendants to the cross bill. The causes were heard together and the original bill dismissed. It was held, 1. That the second bill asking for relief against the city of Peters- burg, which could not be given on the pleadings and proceedings in the original bill, but which was based upon grounds involved in that case, it wa& the proper subject of a cross bill ; but the relief sought by it being outside the original bill, the dismissal of the • As to relying upon matters purely legal, see Hume vs. Long, 6 Monroe, 119. CROSS BILLS. 67i original bill did not involve the dismissal of the cross bill. 2, Tha if the cross bill be treated as an original bill in the nature of i cross bill, all the parties being before the court, and the case having been matured, it was proper to proceed to decide it upon th( merits. And certainly the plaintiff in the cross bill is not to b( heard to question the jurisdiction of the court after having had th( determination of the question brought by him into the case. A cross bill being an auxiliary bill simply, must be a bill touch ing matters in question in the original bill. If its purpose b( different from that of the original bill it is not a cross bill, evei though the matters presented in it have a connection with the sam( general subject. Ic the United States courts while as an origina bill it will not attach to the controversy unless it be filed undei such circumstances of citizenship, &c., as give jurisdiction to origi nal bills, yet a cross bill may sometimes so attach. Cross vs DeValle,! Wal, S. C, 5. 599. A cross bill should state the original bill and proceedings thereon, and the rights of the party ex hibiting the bill which are necessary to be made the subject of cross litigation, or the ground on which h( resists the claims of the plaintiff in the original bill if that is the object of the new bill. Mitf. PL, 81. It should be confined to the subject matter of the original bill and cannot introduce new and distinct matters not embraced in thi original suit. Story's Eq. PL, § 401. See Oross vs. De Valle, '. "Wal. S. C, 5. It may perhaps set up additional facts as constituting part of the same defence relative to the same subject matter. But it oughi not to contain new matter not set up as a defence in the origina cause, unless it be matter which has arisen subsequently. Ken Ch., in Underhill vs. Van Cortlandt, <6c., 2 John. Oh. Rep., 355 Brown, <&c., vs. Story, 2 Paige, 594 ; Oalaiian, <£c., Erwin, 1 Hop kins Oh. Rep., 58, 59, 2 Rob. Pr. (old) 318. A cross bill filed in Bronson and als vs. LaCrosse and M. B. Oc and als, 2 Wal., S. C, 283, without leave, was set aside. 600. In a cross bill a party cannot question wha he has admitted in his answer to the original bill Carr, J., in Hudson, &c., vs. Hudson^s ex^ors, ', Rand. 117. 678 SUITS IN EQUITY. 601. A complainant in the original bill, as well as other parties to the cross bill, may plead, answer or demur to the cross bill ; but a plea to the person of the plaintiif in a cross bill (unless exhibited by a person incapable alone to institute a suit), and a de- murrer for want of equity in such bill, will not lie. Mitf. Eq. PL 81, 82, 291. For will a plea to the jurisdiction lie. Ibid. New parties cannot be introduced into a cause by a cross bill, Shields ^s. Barrow, 17 How. 130, nor can a Circuit Court of the United States compel defendants to file a cross bill and bring in new parties whom these defendants are, but the complainants are not, competent to sue in the United States courts. Ibid. 602. A complainant in the original bill has the priority and will not be compelled to answer the cross bill until the defendant has put in his answer to the original bill ; ' Lube's Eq. PI. 143, Code 1873, ch. 167, sec. 16, 72nd Rule U. S. Supreme Court ; but if the plaintiff in the original cause amends his bill in materia? points, subsequent to the filing of the cross bill, the amended bill will be considered as constituting with the original bill a new bill, and he thereby loses his priority (Lube's Eq. PL 143) and his right to have an answer before he is called upon to answer the cross bill. Dan. Ch. Pr. (old) 509. See Steward vs. Boe, 2 P. Wms. 434 ; Long vs. Burton, 2 Atk. 218. ^ This right of priority ia the plaintififs' aa against those who claim aa rep- Teaentatives of the complainants, or one of them, in the croas oauae. Child VB. Frederick, 1 P. Wms. 266. ^ And, in two oases, it waa held to be so, if the amendment was in matter immaterial. Johnson va. Freer, 2 Cox 371 ; Noel vs. King, 2 Madd. 394.. Sed quccre. CROSS BILLS. 679 If an original bill is abated by the marriage of a plaintiff, and ■not revived until after a cross bill is filed, the priority of the origi- nal bill is said to be lost. Smart vs. Floyer, Dick. 260. 603. If a cross bill be taken as confessed, it may 1)0 used as evidence against the complainant in the original suit, on the hearing, and will have the same ■eifect as if he had admitted the same facts in an answer. White vs. £uloid, 2 Paige 164. 604. After both causes are at issue, the complain- ant in the cross suit may have an order that they be heard together, but it is not indispensable that they be heard together. Coleman vs. Moore, 3 Little 355. 605. The court will not suspend the hearing of the original cause on account of a cross bill, when the cross bill has been filed at an unreasonably late period, or when the plaintiff in the cross bill has practiced delay in preparing it for a hearing. Sterry, <&€., vs. Arden, &c., 1 John. Ch. R. 62 ; Gov.erneur, <&c., vs. Mmendorf, 4 John. Ch. R. 357 ; White vs. Buloid, 2 Paige 164 ; McConnico vs. Moseley, 4 Call 360 ; 2 Rob. Pr. (old) 319. Nor is it a matter of course for the court to stay the proceedings in the original suit in any case, except where the defendant in the cross suit (the plaintiff in the original) is in contempt for not an- swering. Wkiie vs. Buloid, 2 Paige 164, Williams vs. Carle, 2 Stockt. (N. J.) 545. 606. Sometimes at the hearing of an original cause, a cross bill is directed to be filed ; and even after an interlocutory decree, such direction has been given. Mitf. PL, 83 ; Brown vs. Story, 2 Paige, 594.* 'In Brown, die, vs. Story, 2 Paige, 594, three persons sued at law as joint debtors, filed a bill for an account and obtained an injunction to stay pro- 680 SUITS IN EQUITY. Of motions and petitions. 607. An interlocutory application is a request made to the court for its aid in a matter arising in the course of the cause. It may either relate to the process of the court, or to the protection of the pro- perty in litigation pendente lite, or to any other mat- ter upon which the interference of the court is required at any time. Applications of this kind are either made orally or in writing — in the former case they are called motions, in the \sitter petitions. 1 Barb. Ch. Pr. 565. Motions. 608. There are motions of course and special motions. The former may be made without notice to the .opposite party ; the latter can only be made- after reasonable notice. 609. Motions may be made by or on behalf of any of the parties, or by a quasi party (as in the case of a purchaser under a decree), but strangers to the ceedings at law. After an order of account, one of the complainants died. By that death all remedy at law against his estate was lost, and there would have been no necessity for proceeding against his personal representative in equity, if the surviving complainants had been solvent. But they were al- leged to be insolvent. The defendant was therefore permitted to file .a cross bill in the nature of an original bill against the surviving complainants and the personal representative of the decedent, setting forth his joint demand and alleging the insolvency of the survivors by which he was compelled to. resort to' the estate of the decedent. If the defendant filed such cross bill within one month, and prosecuted with due diligence, the proceedings under the order of account were to be stayed until farther order, so that there should be only one accounting between the parties. MOTIONS. 681 record may not apply to the court by motion ; they should file a petition. 610. The essential difi^erences between motions oi course and special motions seem not to be very well settled ; the former, however, is said to be such as it is a matter of course to grant, while the latter need some ground to be laid for them, either by the pre- vious orders, or by the pleadings in the cause, or by affidavits. 610a. In the sub-section are cases in which reliei was granted on motion. There was a motion, after notice, in Kenduck (§: als. vs. Whitney d als., 28 Grat. 646, under chapter 177, sec. 7, of the Code of 1873, to amend and rehear an interlocutory decree pronounced and en- tered more than five years before the motion was made. The court of appeals held, that, by that section a motion could not be made after five years had elapsed. But the motion being founded on a notice setting forth the grounds for rehearing and being signed by the counsel and served on the parties, the court treated the notice as a petition for rehearing, and granted the relief sought ; the court holding that there is no statutory bar to the time within which a petition for rehearing may be filed to correct an error in an interlocutory decree. See also Barger vs. Buehland <£ als., 28 Grat. 850, 'in which a notice signed by counsel and setting out the grounds for setting aside a decree was treated as a petition for re- hearing. Decree, containing a reservation, amended on motion in a sum- Tnary way. In 8heppard's ex'or vs. Starke (& ux., 3 Munf. 29, it was held that a decree which is final in all respects except that "liberty is reserved to the parties or either of them to resort to the court for its further interposition, if it should be found neces- sary," may be amended on motion in a summary way, or by bill ol review. Motion, on reservation in a decree. Under a reservation in the decree, a party may be proceeded against by motion. In Jones vs, Sobson, 2 Rand., 483, the bill was for a legacy, and was broughl against the executors and their sureties ; and upon the executors confessing that sufficient assets had come to their hands, a decre< was pronounced against them, reserving liberty to the plaintiff t( apply to the court for further relief against the sureities, if it shoulc 86 682 SUITS IN EQUITY. become necessary. Execution was issued against the executors and returned nulla bona ; and then the plaintiff gave notice to the sureties, that under the reservation in the decree, he would apply to the court to decree the legacy against them. The sureties ob- jected, that they could not be liable upon motion, but only by bill. It seemed to the Court of Appeals, that when the executors con- fessed assets, it was beneficial to the sureties that the decree should be immediately pronounced against the executors, instead of pro- ceeding in the cause so as to subject the sureties jointly with the executors, since there was a better chance of indemnifying them by compelling payment from the executors than if the decree had been delayed. While the course thus taken was obviously beneficial to the sureties, they could suffer no possible injury by being proceeded against by motion. On such motion, the court would proceed against the sureties, if there were already enough in the record to justify a decree, or if there were not, it would order the necessary accounts to ascertain the extent of their liability. Whether a wife can assert her right to survivorship or to a pro- vision hy -motion. It was queried in Bherrard (& als. vs. Carlisle, 1 P. & H., 12, whether a wife could, by motion, assert her right to sur- vivorship or to a provision. Motion to recover money paid under a decree, afterwards reversed^ When money is paid under a decree, which has been subsequently reversed by the Court of Appeals, it may be recovered by motion to the lower court after notice. Flemings vs. Riddich, 5 Grat. 272. Motion, after notice, for introduction of evidence not offered at the hearing. In Moore vs. Hilton, 12 Leigh 1, cited before sec. 443, p. 472, it was held that the introduction of the evidence offered de- pended on the sound discretion of the court and its judgment on the sufficiency of the excuse offered for the failure to have it before the court when the cause was heard, and the interlocutory decree pronounced, and that such excuse might be offered, either on motion after notice, or upon a petition for a rehearing of the cause. See p. 500, note to sec. 443. Motion for time to put in defence. There was a motion for time to put in a defence where some of the defendants were not served with process in Poultney vs. The City of LaFayette, 12 Pet. 472. Motion, when required, hy a defendant in contempt. From a de- fendant in contempt no plea or demurrer will be received but upon motion in open court. Ch. Taylor in Lane vs. Ellzey, 4 H. & M. 504. , Motion to introduce viya voce testimony. Viva voce testimony is not, as already seen, allowed as a matter of course. To obtain permission to introduce it, on the hearing, previous notice of the intention to introduce it must be given. Tucker, J., in Chandler's ex'x vs. Neale's executors, 2 H. & M. 124. And sometimes both MOTIONS. 683 •notice and an affidavit are necessary as the foundation of a motion to hear it. Emerson vs. Berlceley, <£o., 4 H. & M. 441. Motion by sureties. Session Acts 1877-8, p. 220, §§ 6, 8, give the right to sureties to recover by motion for the amount paid and damages of the principal, and to recover of a co-surety the share ie ought to pay. There is nothing in the statute restricting this right to common law courts. No reason is perceived why the motion may not be made in the equity court when the money is paid under decrees. Motion for injunction, and reference. In Pennsylvania vs. Wheeling c& B. Bridge Co., 9 How. 647, there was a motion for an injunction. The court on hearing the motion referred the cause to a commissioner to take proqfs upon the questions stated, and to re- port on these questions, together with the proofs allowing him to employ an expert to aid him and make a report to be annexed to Jiis. Motion for rule refused : party required to file a supplemental nil. In BecTcwith vs. Avery's adm'or, do., 31 Grat. 533, the suit was instituted by the administrator in 1849, and he was author- ized to pay money to M. and N., legatees for life, upon their giving -security for its return at their death. This was done. M. diejd, and by another decree in 1853 the money paid her was collected and paid to N., upon her husband and herself giving like bond. This bond was given. In June, 1874, the remaindermen who were not parties to the record moved for a rule on the legatees for life ^ to give additional security, alleging that the securities were insol- vent. The Court of Appeals said that as this proceeding was had hy strangers to the record, after a long lapse of time, and after the object of the suit by the administrator had been accomplished so far as he was concerned, it was improper to proceed by rule, but that the remaindermen should file a supplemental bill, t The following are cases in which orders have been entered on motion : Memoval of causes from one court to another. Sess. Acts 1878-9, p. 24. This act, which went into force 14th January, 1879, is as follows : § 1. On the motion of any party tp a suit, motion or other pro- ceeding in a County or Corporation Court, who desires to remove the same to the Circuit Oflhrt having jurisdiction over said county or corporation, or to any other County, Circuit or Corporation Court, the Court may, after twenty days' notice to the adverse party, order such removal ; or whenever, in the opinion of the County or Corpor- ation Court, or the judge thereof, it is improper for said judge to try the same, the said County or Corporation Court may order such re- moval ; or upon like motion, the said Circuit Court, or the j udge 684 SUITS IN EQUITY. thereof in vacation, "after twenty days' notice to the adverse party,, may order suoli removal to the said Circuit Court. § 2. On the motion of any party to a suit in the Circuit Court, the said Circuit Court may order it to be removed to any other Circuit or Corporation Court. The judge of said court, in vaca- tion, may make such order after reasonable notice to the adverse party. The order of removal may be made by the court or judge, ■without motion or notice, when the judge is so situated as to ren- der it improper, in his judgment, for him to decide or preside at the trial of the cause. Order changing plaintiffs to Tnahe them witnesses. See pp. 593,, 595, ante. Order changing a next friend to make him a witness. See p. 595- ante. Order compelling plaintiff to make his election to proceed at law or in equity. Under the statutes. Seas. Acts 1825-6, p. 18, sec. 13- and Sess. Acta 1827-8, p. 21, ch. 26, sec. 1, Supp. Eev. Code, p. 183 and p. 178, cited 2 Eob. Pr. (old), 316, if four months had elapsed after the "filing of the answer of the defendant he was entitled to a dismission of the bill, unless the plaintiff should dili- gently pursue the necessary measures to mature the cause for hear- ing as to the other defendants ; (he is now entitled either to a hearing or to a dismission of the bill as to him, Code 1873, ch. 167, sec. 51 ;) or if his interests were not so connected with the interests of the other defendants as that it would be improper to decide upon those - interests separately, he was entitled to an immediate hearing as to himself. (This latter provision is in the present statutes. Code 1873, ch. 167, sec. 49 and sec. 51.) Order for payment to plaintiff pending the suit. Code 1873, ch. 105, sec. 10 ; 2 Eob. Pr. (old), 346 ; Meih. Oh. vs. Jaques, do., 3 John. Ch. Eep. 1 ; Chrkson \&.,DePeyster, 1 Hopk. Ch. R. 274, 507. From these cases it appears that such an order may be made when a portion of the claim was admitted to be clear by the answer itself^ but in Cook vs. Barker, 1 Hopk. Ch. E., 117, such an order was refused ; the whole subject being in controversy, it would have been prejudging the case to order payment of any part. Order for party to pay money into court. See p. 596, ante. Order to lend out money, entered on motion. See p. 567, ante. Order allowing creditor to prove his claim. See Anderson vs. Anderson, dc, 4 H & M., 475, hereafter cited, p. 689. PETITIONS. 685 Petitions. 611. Petitions are applications in writing for an order of court, stating the circumstances upon which they are founded, and are duly entitled of the cause and court in which they are to be filed. They are usually resorted to when the nature of the applica- tion to the court requires a, fuller statement than can be conveniently made in a notice of motion. 1 Barb. -Ch. Pr., 578. Strangers to the record are, as we have seen, required to file a petition when those who ^re parties may obtain the relief by motion. 612. It may be difficult to draw a precise line be- tween cases in which a party may be relieved upon petition, and cases in which he must apply more formally by bill. Petitions are generally for things which are matters of course, or upon some collateral matter which has reference to a suit in court. Kent, C J., in Codwise, &c., vs. Gelston, 10 John. Rep , 521. The case of Gooh, (£e., vs. Mcmcius, (6c., 5 Johns. Ch. Rep., 89, furnishes an instance in which a petition might have been proper. There a suit had been brought to foreclose a mortgage, a decree was made for the sale of the premises, and the proceeds being more than sufficient to satisfy the mortgage, the surplus was payable to the mortgagor or to his assignee. Pending this suit a judgment was obtained against the mortgagor, and the judgment creditor was, of course, entitled to have his debt satisfied out of the residuary interest in the land after the mortgage debt and costs were paid. If the judgment had been obtained before the commencement of the suit to foreclose, the mortgagee would have been bound to make the judgment creditor a party, or else the decre^ and sale would not have taken away his right to redeem. But as the incumbrance created by the judgment was pendente lite, the mortgagee was not bound to take notice of it. In such a case, it would seem, the judgment creditor must have a right to come in and be made a 686 SUITS IN EQUITY. party, bo as to secure his claim to the surplus. 2 Eob. Pr.^ (old) 348. In Sherrard <& ah. vs. Carlisle, 1 P. & H. 12, A. assigned to B.,. for value, choses in action claimed by him in right of his wife, but no farther reduced into possession than by the assignment. A suit in chancery was instituted involving those interests to which A. and his wife and B. were made parties. While the suit was pending, A.'s wife filed a petition therein, alleging a divorce from A., and claiming the whole fund in court as 9. feme sole. About five yearg- after the filing of this petition, A. died, and some years thereafter, the court made an order directing a commissioner to report what would be a reasonable provision for the wife of A. out of the fund under its control. The commissioner reported that the fund in court was small ($422), and that the whole of it would be a very inadequate provision for her. A.'s wife then dies, and the suit was- revived in the name of her only child 0. as her administrator, who- also filed a bill supplemental to her petition, and prayed that the whole sum might be decreed to him, in right of his mother, who, he insisted, was entitled, either by survivorship to the whole, or to a settlement by way of provision out of it; and that the whole fund would have been a very insufficient settlement. Held, 1, that the wife was clearly entitled by way of provision against the as-^ signee, whether the marriage was ended or not by divorce, or by death, and whether or not she was entitled to the whole by way of survivorship against an assignee for value ; and the fund under the- control of the court not being more than sufficient for the purpose^ the whole should be decreed to her by way of provision or settle- ment: 2, that the wife might assert her right by survivorship, or to a provision by petition or by bill, {^gucere : Can she do so by mo- tion? Thompson, J.) and though she claimed in her petition or bill only by way of survivorship, yet she might be held entitled by way of provision to a part or the whole, according to the circumatances- of the ease ; 3, that an order having been made before the death of the wife, for a report by a commissioner as to what would be an adequate provision for her, her child surviving is entitled, in her right, to whatever would have been decreed to her, and might assert his right to it by a supplemental bill:^ 4, that even if the proceedings in the Circuit Court were irregular, (the petition and the supplemental bill), no objection could be taken to them in an appellate court, if not taken in the court below. Creditors let in by petition or hy motion. In the case of Angelt vs. Sadden, hereafter cited, sec. 620, the creditor was admitted on motion. A petition was not required. 613. Brevity and form are the two things to be- > 1 Bright'B Hu8. and Wife, p. 243, § 6, 1 Dan. Ch. Pr. (old) 138-9. PETITIONS. 687 chiefly observed- in drawing petitions ; to which may be added care to avoid scandft,! and impertinence, for which a petition may be refused. 1 Barb. Ch. Pr., 580. 614. Petitions should be signed by the petitioner and his counsel, and to some petitions an affidavit is necessary. 615. Petitions are, in the Virginia State courts, sometimes treated as cross bills, and sometimes as bills of review. See Bayers vs. Wall, 26 Grat. 354, cited ante p. 675, as to their being regarded as cross bills. In Orickard's ex or vs. Oricka/rd (& ah., 25 Grat. 410, an executor claimed to have made investments in Confederate bonds under the act of March 5, 1863. The court held that not one of the conditions authorizing such investments was found in the case, and that the executor was liable in gold or its equivalent. The legatees had filed a petition to the court to set aside the order authorizing the investment in Confederate bonds and to compel the executors to pay their legacies. On this petition a rule was made upon the executor to show cause against the prayer of the petition. The appellate court treated the petition as a petition to review, and set aside the order, and granted its prayer. 616. Sale of infants^ lands. Proceedings for the sale of infants' lands may be instituted by petition. Parker and als vs. McCoy andals, 10 Grrat., 594. 617. Creditors intervening. Creditors may inter- vene by petition in a suit of legatees surcharging administration account, Smith's ex' or vs. Britton, &g,, 2 P. & H., 124, and it makes no difference that their claims will absorb the whole balance fund due by the executor. Ibid. 618. Creditors coming in hy petition to a suit attack- 688 SUITS IN EQUITY. ing a deed on ground of fraud. Creditors may come in by petition to a silit attacking a deed on the ground of fraud, and their priority will be deter- mined by the date of filing their petition — unless they have other ground of priority. See Wallace's adrn^or & als vs. Treakle. & als, 27 Grat., 479.' 618 a. Claims against the Commonwealth. Claims against the Commonwealth rejected by the auditor are asserted by a petition to the Circuit Court of Richmond, other claims against the Common- wealth by petition, or by a bill in chancery, according to the nature of the case. Code 1873, chap. 44, sec. 1. See Arents vs. The Commonwealth, 18 Grrat., 764 ; Com. vs. ChalJcley, 20 Grat., 404; Attorney Gen. vs. Tiirpin, 3 H. & M., 648. See chap. 44, Code 1873, and Sess. Acts, 1874^5, p. 253, as to mode of recov- ^lu Wallace' s adm' or & ah vs. Treakle & als, 27 Grat., 479, it was held (1.) That creditors at large who file a bill to set aside a deed of their debtor con- veying land as fraudulent, and succeed; have a lien on the land for their debts from the filing of their bill; (2.) the deed of H. for land is set aside as fraudu- lent at the suit of some of his creditors and there is a decree after the death of H. for the sale of the land and for account of the debts of H. and their priorities. The report shows that there was one judgment against H. before the deed was made. Some of the plaintiff's in the bill were creditors by judgment, one a creditor at large ; a number came in by jpetition before the decree, and a number came in before the commissioner, and by petition after the decree. In distributing the fund, it is to be applied, 1st, to pay the judg- ment recovered before the deed was made ; 2d, to the judgments recovered before the bill was filed; 3d, to the creditors at large who joined in the bill; 4th, to the creditors by petition before the death of H., in the order in which their petitions were filed; 5th, to all the other creditors pro rata. It was farther held, (3.) that though there was in the case a decree for the sale of the land and a sale before an account of the debts was taken, the sale of the land will not be set aside upon the objection of some of the creditors who came in after the decree, made years after the sale, when it is obvious the land would not sell for as much as it had sold for before, and which was more than some of these creditors had expressed their willingness to take for it. PETITIONS. 689 •ering claims against the Commonwealth or against ■corporations composed of officers of government. 619. By petition to the Circuit Court of the county in which the land lies one may claim an escheated land, or interest therein. Code 1873, ch. 109, §§ 8, "9, 10. After sale, if he has not asserted a claim be- fore sale or decree, he may claim the proceeds paid into the treasury by presenting it to the auditor of public accounts, and if rejected by him, by petition to the Circuit Court of Richmond city Code 1873, chap. 109, § 33 ; chap. 44, § 9. 620. Petition in creditor's suit. In creditor's suit by a creditor suing on behalf of himself and others, the court will let in creditors at any time while the fund is in court. Lord Eldon in Lashley vs. Hogg, 11 Yes., 602. In Angell ys. Hadden, 1 Madd. Ch. R, 529, the creditor coming in after an account taken upon the usual direction to advertise for creditors, was allowed, on motion, to prove his debt, but upon condition of his paying the costs of the application and the expense of reapportioning the fund amongst the creditors. In that case there was a deficiency of assets. Such applications are usually made by peti- tion. Such petitions are allowed upon the creditor's agreeing to contribute to the expense of the suit. See Anderson vs; Anderson, <&c., 4 H. & M., 475. It was held in Mbpkins vs. Baker's adm'or <& ah., 2 P. & H. 110, that an assignee of an interest by filing a petition in a suit in the name of his assignor and asking that he may be made a party does not make the assignee a party to the suit. 621. Order of publication. There may be an order 87 690 SUITS IN EQUITY. of publication in a proceeding by petition. Code- 1873, ch. 166, § 10. Petition for rehearing. 622. An interlocutory order or decree may be set aside or otherwise corrected by the court which made- it upon motion or petition, Ch. Taylor in Banks'\B. Anderson, &g., 2 H. & M., 20 ; by motion, if the erroneous proceeding be a niere order, Fanning vs. Dunham, 4 John. C. R., 35, by petition for a rehear- ing, if there has been a regular decree upon the- merits. Badley, &c., vs. Shaver, &g., 1 John Ch. R., 200. 623. Until the term is_ ended at which a final de- cree is entered, the proper method for correcting error in it is by petition for a rehearing and not by bill of review. See Hodges vs. Davis, 4 H. & M., 400. 624. Whether a rehearing shall be granted or not is a matter resting on sound discretion. If the chan- cellor is satisfied that the cause has been exhausted by argument, if he has given to the case the best examination in his power, and has arrived at a con- clusion which satisfies his judgment, and the petition for a rehearing rests solely upon the merits of the cause as they stood at the previous hearing, there can be no propriety nor use in granting the rehear- ing. Field vs. Schiefflen, &g., 7 John. C. R., 256. But if one chancellor has pronounced a decree which has been reversed by his successor in office, a third chancellor may very properly review these conflicting decisions of his predecessors. Land vs. Wickham, 1 Paige, 256; 2 Rob. Pr. (old), 389. PETITION FOR REHEARING. 691 625. Upon the rehearing, the cause, with respect to the party who petitioned to rehear, is open only as to those parts of it which are complained of in the peti- tion. Consequa vs. Fanning^ 3 John. C. R., 594. 626. In Virginia, the Court of Appeals has de- termined, that after an interlocutory decree has been pronounced, if a party discover new and important testimony of which he had no knowledge when the decree was rendered, he may petition for a rehearing; and if his petition be sustained by the affidavits of witnesses, the court will open the decree so as to allow^ him the benefit of the newly- discovered facts. Rolerfs adwbor vs. Coclce, 1 Rand., 121. In Purdie, <£c., vs. Jones <£ ah, 32 Grat. 327, the court held the decrees to be interlocutory, and that they might be reheard on petition. So in the case of Summers vs. Darne (& als, 31 Grat.. 805. An absent debtor who was not served with process, and did not appear in the case before the date of the decree to obtain relief against the decree, must appear and file a petition for a rehearing. Piatt vs. Sowland, 10 Leigh, 507. He cannot obtain relief by ap- pealing from the decree. Ihid. See Code 1873, ch. 166, § 16. In a suit, in which there was an absent defendant, there was a decree against the home defendant; from which he appealed. Pending the appeal, the absent defendant, it was held, might file his petition in the court below to be permitted to appear and file his answer in the cause and have the decree reheard and set aside. Jas. R. <& K. Oo. vs. Iditlejohn, 18 Grat. 53. There is no statutory bar to the time in which a petition may be filed to correct an error in an interlocutory decree ; and where there was a notice of a motion to rehear a decree, the notice having been signed by counsel, and specifying with suflScient minuteness the grounds upon which the party relied for reversing the decree, the notice was treated as a petition for a rehearing. Kendriok d als vs. Whitney d als, 28 Grat. 648. See also Barger vs. BucTcland S als, 28 Grat. 85p. A bill of review was treated as a petition for rehearing ia Ambrouse's heirs vs. Keller, 22 Grat. 769. See 27 Grat. 291. 692 SUITS IN EQUITY. 627. The manner of correcting decrees and the right to have decrees reheard by infant defendants or by parties proceeded against as absent or unknown defendants have been discussed in previous sections/ And in section 443, p. 471, and the note thereto on p. 600, the reader will find the doctrines laid down in Summers vs. Barne & als., 31 Grrat., 805, and Sich- ardson vs. JDuble & als., 33 Grrat., 730, as to the intro- duction of evidence as a foundation for a motion or petition to rehear the decree. 628. Petition to rehear final decree in United States courts. A final decree in the United States Circuit Courts, if it be in a case in which there is no appeal to the Supreme Court, may be corrected on a petition for rehearing, provided the petition to rehear is ad- mitted, in the discretion of the court, before the end of the term of the court next after the final decree is made. See 88th Rule of Practice, cited in section •502, p. 516, ante. OH^I^TER VIII. Bills of review. 6ii9. A bill of review only lies to a final decree. A bill of review is in the nature of a writ of error, and its object is to obtain an examination and alteration or reversal of a final decree made upon a former bill ; 2 Barb. Ch. Pr., 90, and this, after the term has ex- pired at which the final decree was rendered; for, '§§ 499-503, pp. 514-517. BILL OF REVIEW. 69S during the term, the decree may be reheard on peti- tion for rehearing. Hodges vs. Davis, 4 H. & M., 400. A bill of review forms no part of the proceedings in the original cause, but is offered after the suit is completely ended. See Bowyer vs. Lewi^, 1 H. & M., 554. To authorize a bill of review, the decree sought to be reviewed and reversed must be final and the parties out of court, Ellzey vs. Lanes ex'x, 2 H. & M., 589, and if it be received before such final decree it should be dismissed at the costs of the party filing it. Machey vs. Bell, 2 Munf., 523. After a final decree has been rendered against a plaintiff, or against a defendant who has answered, and the term has passed in which the decree was pronounced, the cause cannot be reheard in the same court except upon a bill of review. Ch. Taylor in Hodges vs. Davis, 4 H. & M., 400. Though the cause had been heard only as to a particular defen- dant, yet if a final decree has been pronounced as to him, the case will not as to that defendant be within the power of the court after that term, except by bill of review.' JRoyalTs adm'rs vs. Johnson, <&c., 1 Eand., 421 ; 2 Rob. Pr. (old), 389. And if a seirefacias be issued against his executors, it will be considered as improvidently awarded, and may be dismissed at the costs of the plaintiffs. Ibid. A party against whom an interlocutory decree had been rendered, filed a bill which he styled, and which was in form, a bill of review, alleging errors on the face of the decree as well as new facts in relation to the matter in controversy, and praying that the decree be reviewed and reversed ; the bill was taken as a supple- mental bill in the nature of a bill of review and petition for a rehearing. Baidley vs. Merrifield, 7 Leigh, 346. Oarr, J. dissented. The bill was doubtless rightly treated as 'a petition for rehearing.' 630. By whom bill may be filed. The bill may be filed by either plaintiff or defendant. Osborne vs. Vsler, 6 Bro. P. C, 20; 2 Barb. Ch Pr., 96; Thorn- ton vs. Stewart, 7 Leigh, 128. It cannot be filed by 1 In the practice which prevails in the Virginia State oonrts, a bill of review to an interlocutory decree is treated as a petition for rehearing, LaidUy vs. Merrifield, 7 Leigh, 346; Amhrouse's heirs vs. Keller, 22 Grat., 769, and a petition for rehearing of final decrees, if it conforms to the ordinary require- ments of a bill of review, is treated as a bill of review. Crickard vs. Orick- ard, 25 Grat., 410; Kendrieh & als vs. Whitney and ah, 28 Grat. 654. 694 SUITS IN EQUITY. a, person who has no interest in the question intended to be presented by the bill, and who cannot be bene- fitted by the reversal or modification of the former decree. Webb, &c., vs. Pell, &g., 3 Paige, 368; JDyckman, &c., vs. Kernochan, &c., 2 Paige, 26 ; Wiser vs. BUcMy, &c., 2 John. Ch. p,., 492. Even persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, however in- juriously the decree may afi"ect the rights of third persons. Thomas vs. Harvie, 10 Wheat, 146 ; Mitf. PL, 205. With this exception it may be stated gen- erally, that all the parties to the original bill ought to join in a bill of review. B^k TJ. S. vs. White, 8 Pet., 252. A bill which stated that the complainant had an interest in the subject matter of a former suit in equity, applied to be admitted a party, was refused, and a decree made in fraud of his rights, and praying to have that decree set aside, &o., is an original bill, and not a bill of review ; and, in the United States courts, the com- plainant must be competent to sue all the defendants. Wickliffe vs. Eve, 17 How. 468. In Buffington vs. Marvey, 5 Otto, 99, the court approved the ruling in Whiting <& ah vs. B'Tc TJ. K, 13 Pet. 6, and Putnam vs. Day, 22 Wal. 60, that the only questions open in a bill of review, except when it is filed on the ground of newly-discovered evidence, or contains new matter, are such as arise upon the pleadings, pro- ceedings and decree ; and that should such a bill set forth the evi- dence in the original cause, a demurrer specially assigning that error alone should be sustained, or the evidence might, on motion, be struck out; but a general demurrer must be overruled if the bill showed any substantial error in the record, i In Thompson vs. Maxwell, 5 Otto, 391, the court cites and ap- proves Buffington vs. Harvey, vhi sup. In Thompson vs. Maxwell, it was also held that none but parties and privies can have a bill of review, and it will not lie when the decree in question was passed by consent. 631. When bill of review may be maintained. The BILL OF REVIEW. 695 ■causes for which a bill of review may be maintained are limited to these : 1. There must be error in law apparent upon the face of the decree,'' or 2, the party seeking to review the decree must allege and prove the discovery of new matter which could not have been used at the time of making the decree in con- sequence of the party's ignorance that such matters existed.' In Clarice vs. Kellian, 13 Otto, 766, a bill of review was proper. It was filed for the purpose of correcting errors apparent on the face of the record, and less than two years had elapsed since the date of the decree before its being filed. See Thomas vs. Harvie, 10 Wheat, 146. In Oraig vs. /Smith, 10 Otto, 227, it was held that the introduc- tion of newly-didcovered evidence, under a bill of review, to prove facts in issue on the former hearing rested in the sound discretion of the court, to be exercised cautiously and sparingly, and only un- der circumstances which render it indispensable to the merits and justice of the case. , 632. Leave to file hill to be obtained before filing it. When a bill of review is not founded on error appa- rent on the decree, according to the english practice, leave should be first obtained to file it ; and this leave is obtained on petition. This is the practice in the United States Circuit Courts. See Dexter vs. Arnold, 5 Mason's C. C, 303. In the Virginia State 2 See sec. 632 a, and 633 post. 3 2 Rob. Pr. (old), 414; Triplett vs. Wilson, &c., 6 Call, 47; Ch. Taylor in McCall vs. Oraham, dec, 1 H. & M. 13 ; Winston vs. Johnson's ex'ors, 2 Munf. 305 ; Fleming, J. in HUzey vs. Lane's ex'x, 2 H. & M. 593 ; Wiser vs. Blachly, (fee, 2 John Ch. R. 491 ; Lansing vs. Alb. Ins. Co., 1 Hopk. Oh. R. 102. In Carter vs. Allan, 21 Grat., 241, the bill was held fatally defective as a bill of review, because it failed to shew defect in the proceedings in the cause it sought to review, and to allege that the plaintiff had discovered evidence since the decree which she could not, by reasonable diligence, have ascer- tained before. 696 SUITS IN EQUITY. courts leave is obtained to file the bill on motion.. Lee's infants vs. Braxton, 5 Call, 409 ; Williamson \s,. Leadhetter, &c., 2 Munf., 521 ; Quarrier vs. Carter^s representatives, 4 H. & M., 243. But a bill of review cannot be filed without leave of the court.* See Hill vs. Bowser, 18 Grat., 364. It is not true that errors in a final decree can only be reached by a bill of review. Sill vs. Bowyer, 18 Grat., 364. A party against whom a decree has been rendered without his appearance- may apply to have the decree opened either by petition or by original bill. In either form it is an original proceeding and may be commenced without previous leave of the court. Ibid. And if in such case he apply by petition to open the decree and the appli- cation is refused, he may nevertheless file his original bill to hav& the decree opened. Ibid. In Erwin vs. Vint, 6 Munf. 267, a decree by default was set aside on motion, after the tei'm had expired. In that case, a decree for a conveyance had ' been obtained by default. It was shown that the party against whom the decree was rendered had been prevented from filing his answer, at one time by a mistake as ta the day for the session of the court, and at another by a personal disability produced by accident ; and the party asking the decree to be opened stated farther that he was prepared to show that his title to the land was good, and paramount to the claim of the plaintiff or any other defendant. The Court of Appeals was of opinion, under the circumstances of the case, and on the authority of Kemp vs. Squire, 1 Ves. Sen., 205, that' the decree ought to be set aside, and the party permitted, on payment of costs, to file his answer in order to a trial of the cause upon its merits. 2 Rob. Pr. (old), 406. *There is no case ia'Virginia known to the writer, in which it was held unmecessary to obtain leave of the court to file the bill when it was founded simply on error apparent on the decree. Prof. Minor states the rule of prac- tice to be, following in this Mitford's PI., p. 84, that no previous leave of court is requisite in order to file a bill of review for error of law apparent on the face of the proceedings ; but when it is desired to file such bill by reason of new matter, such previous leave is indispensable. 4 Min. Ins., 1253. Mr. Eobinson states the rule as follows: " In Virginia the practice is to apply in the first instance for leave to file a bill of review, whether it is for error appa- rent on the body of the decree, or upon discovery of new matter since th» decree was pronounced. See 2 H. & M., 591, note, and Roane, J., in Qaarrier vs. Carter's represeniatiea, 4 H. & M., 243." 2 Bob. Pr. (old), 418. BILL OF REVIEW. 697 633. What is error apparent on face of decree. It was held in Quarrier vs. Carter^ s rep., 4 H. & M., 242, that an omission to take the preliminary measures necessary to prepare a cause for hearing, should not be regarded as error apparent on the face of the de- cree ; but in Braxton vs. Lee's Heirs, 4 H. & M., 376, where some of the defendants were infants, and a de- cree was rendered against them without any answer being filed on their part, and without even taking the bill for confessed as to them, this was considered an error apparent on the face of the decree, and all the proceedings in the cause subsequent to the amended bill, by which the infants were made de- fendants, were set aside, so far as related to these de- fendants, and the cause was directed to be regularly matured for a hearing, in order to a just decision upon the merits. In Ooohby vs. St. John, 25 Grat. 163, in September, 1871, the court made a decree perpetuating , the injunction, setting aside a judgment and remanding the cause to the rules. In March, 1872, St. John by leave of the court filed a bill of review for errors ap- parent in the decree; and on the 2d September, 1872, the court made a decree in the bill of review case, reversing and annulling the decree of September, 1871, and directing the cause to stand upon the docket as it did before said decree. And on the same day the original case of Goolsby & Reotor-against St. John was reinstated on the docket, and, on the motion of St. John, it was decreed that the injunction be dissolved. The appellate court held : 1. That it was a proper case for a bill of review. 2. That the court should not only have dissolved the injunction, but should have dismissed the original bill. 3. That the bill of review was a continuation of the original suit, and there should not have been two decrees, but the whole should have been embraced in one decree, and the ap- pellate court will so regard them. 4. That if the case had not been a proper one for a bill of review, still an appeal from that de- cree brings up the whole case, and the appellate court will go back to the first error and reverse the decree of September, 1871. 88 698 SUITS IN EQUITY. 633 a. Not sufficient grounds for hill of review. There were not sufl&cient grounds for a bill of review in the case of Winston vs. Johnston^ s Executors, and other cases mentioned in the subsection. In Winston vs. Johnson's exors, 2 Munf. 305, the report of the commissioner on which the decree' was founded was made without ■due notice, and the report did not lie long enough in the court be- fore the rendition of the decree. Such objections, it was held, ought to have been taken before the decree was rendered, and were not grounds for a bill of review. A fact was stated in the decree as proved, when, in truth, there was no proof to establish that fact. This was not error for which a bill of review would lie. The error apparent upon the decree must be an error in point of law, arising out of facts admitted by the pleadings or recited by the decree itself. Webb, <£c., vs. Pell, do., 3 Paige, 368 ; Barrett d Co. vs. Smith <& Co., 5 Call, 102. A cause was taken Up and decided in the absence of counsel ; this was not ground for a bill of review, Quarrier vs. Carter s rep,, 4 H. & M., 242 ; Wiser vs. Blachly, dc, 2 John. Oh. R., 409, though the counsel was unavoidably absent, and the fact of his absence was unknown to the party until after the decree. Franklin vs. Wilhinson, 3 Munf., 112. In Putnam vs. Doy, 22 Wal., 60, the court held that on a bill of review iiothing could be examined but the pleadings, proceed- ings and decree which, in this country, constitute what is called the record of the case ; that the proofs could not be looked into as they oould on an appeal : that on such a bill filed by a defendant to set aside the decree he is bound by the answer filed in his behalf by his solicitor though he did not himself read it, unless he can show mistake or fraud in filing it ; that the answers of other defen- dants could not be read in his favor ; and that when a defendant admitted, by his answer, the claim to be due and prayed contribu- tion from the other defendants, without setting up any defence to the demand, he could not, after a decree and on a bill of review, ask to have the decree set aside on the ground of laches on the part of the complainant in bringing the suit. In Mosby vs. Moeby, 9 Grat., 554, it was held, that a bill of re- view would not lie for error in a commissioner's report to which there was no exception, and the correctness of which might be afiected by extraneous proof. In Niday vs. Harvey, 9 Grat., 454, it was held to be no ground for a bill of review, that a justice of the peace failed to forward a deposition taken by him to the clerk of the court in which the BILL OF REVIEW. 699 xause was pending, and that the cause had been heard and decided without it. 634. Other insufficient groimds for bill of review. There were not sufficient grounds to sustain the bill In Ellzey vs. Lane^s exHx, and in Triplet vs. Wilson. In Ellzey vs. Lane^s exHx, 2 H. & M. 593, Fleming, J,, said, the forgetfulness or negligence of parties who are under no incapacity is no foundation for a bill of review by them. In Triplet vs. Wilson, (&c., 6 Call, 47, the original bill was to foreclose a mortgage ; the accounts were referred to commis- sioners, and after their report there was a decree. A bill was afterwards filed by the debtor, stating that by mistake his counsel omitted to claim an abate- ment of interest during the war, and praying that the same might be credited. Held, that the rules allowing bills of review would not apply to the case ; not the first, because no error in law appeared in the body of the decree, for as no discount of the interest during the war was claimed in the court of chancery, nor any exceptions filed to the commissioners' re- port upon that ground, the chancellor was under no obligation to allow the defendant what he did not ask for ; not the second, because no new fact was alleged to have been discovered, for the interest during the war was a question with which the plaintiff in the bill of review was fully acquainted at the time of the ■original decree. It is not a sufficient ground for a bill of review that the docu- ments on which the plaintiff's claims depended, and which were intended to be filed with the original bill, were hst or mislaid by his counsel, and not found until after the decree against him, Jones vs. Tiloher's devisees, 6 Munf., 425, nor that a party was pre- 700 SUITS IN EQUITY. vented from taking testimony to prove important facts by wrong; advice of one of his counsel. Franlclin vs. Wilkinson, 3 Manf.,, 112. But see Gom. vs. Pauly, 5 Call, 331. Under a rule of practice, formerly prevailing in the United States Circuit Courts, which ran thus : " If a plea or demurrer be overruled, no other plea or demurrer shall be thereafter received ;; and the defendant shall proceed to answer the. plaintiff's bill ; and if he fail to do so within two calendar months, the same, or so much thereof as was covered by the plea or demurrer, may be taken for confessed, and the matter thereof be decreed accordingly,"* the United States Supreme Court held that the rule did not require the interlocutory order for taking the bill for confessed to be served, before entering the final decree, and consequently the want of such service was not ground for a bill of review. Bk, U. 8. vs. White,, 8 Pet., 262. After a final decree on the merits, a complainant ^fec? a ■petition, supported by his affidavit, asserting that his solicitor had deserted, his interests, failed to except to certain reports and improperly consented to the decree. The United States Supreme Court held that it could not consider the alleged errors in the report of the- master, or review the action of the court below; in refusing to set aside the decree upon an application addressed mainly to its dis- cretion; that if the complainant desired to place the case in a. position where the action of the lower court could be reviewed in the appellate court, he should have filed his bill of review and supported it by depositions ; that such a bill was the appropriate remedv where the decree was obtained by fraud. Terry vs. Com. BTc. Alex., 2 Otto, 454. 635. Stockton vs. Cook. In Stockton vs. Cook, 3 Munf. 68, a purchaser of property with a deed war- ranting the land to be free from all encumbrances, sought relief in equity from his bond given for the purchase money, on the ground that the land waa under mortgage beyond the full purchase money, although he knew that it was mortgaged when he purchased, and although his bond for the purchase money had been assigned. An injunction was ob- tained, but afterwards dissolved and the bill dis- 5 The present 34th rule of practice U. S. Supreme Court, is the correspond- ing rule. BILL OF REVIEW. 701 inissed. The purchaser filed a bill of review alleging the decree of dismission to be erroneous on its face. The bill of review was dismissed by the Circuit Court and an appeal was taken. The appellate court re- versed the decree dismissing the bill of review, re- versed likewise the decree sought to be reviewed and perpetuated the injunction with costs. 636. When bill of review founded on new evidence. The evidence set forth in the bill of review as new discovered, must appear to be material to the merits of the case, Ord vs. Noel, 6 Madd. Ch. R., 127 ; Livingston vs. Huhhs, &c., 3 John. Ch. R., 124, and not such evidence as' might have been discovered, with ordinary diligence, before the decree, Living- ston y?,. Huhhs, &G., 3 John. Ch. R.,124; Lansings vs. Albany Ins. Co., 1 Hopkins's Ch. Rep., 102 ; Ord vs. Noel, 6 Madd. Ch. Rep., 127 ; Barnett & Co. vs. Smith & Co., 5 Call, 98; Winston vs. Johnson, 2 Munf. 305 ; Rubber Co. vs. Goodyear, 9 Wal., 805, or before publication, or when, by the rules of the court, it -could have been made use of at the hearing. See Morris vs. LeNeve, 3 Atk., 35 ; Standish vs. Badley, 2 Atk., 99 ; Lord Portsmouth vs. Lord Effingham, 1 Tes., Sr., 434." * If a party were allo^yed to go to a decree without looking for evidence "which might be obtained by a proper search, and afterwards, upon finding 1;he evidence, to file a bill of review, there would be no end to such bills. Bingham vs. Dawson, Jacob 243 ; 4 Cond. Eng. Ch. 114 ; Pendleton, die., vs. -Fay, tic., 3 Paige 206. In Buckley vs. Bohinson, 12 Grat. 60, a party to a suit claimed to have purchased a part of the real estate of a testator at a sale for taxes, and to have received a conveyance therefor, but such purchase was made before a -decree directing the real estate to be sold at a suit of a creditor of the testa- 702 SUITS IN EQUITY. Evidence, merely impeaching the character of a witness, newly- discovered, is not sufficient to authorize a bill of review. Southard. vs. Bussell, 16 How. 547. Under a bill of review, to permit the introduction of newly dis- covered evidence to prove facta in issue on the former hearing rests, in "the sound discretion of the court, to be exercised cautiously and sparingly, and only under circumstances which render it indispen- sable to the merits and justice of the cause. Oraig vs. Smith, 10- Otto, 226. In Easley vs. Kellam d ah., 14 Wal. 279, the bill of review was properly entertained on the after discovery of a lost paper and a former decree was, on the new evidence, rightly reversed. In State of Fennsyhania vs. Wheeling <& B. Bridge Co., 18 How. 460, there was a motion for a bill of review and for retaxation of' costs : both parties had by a written agreement waived all excep- tions to the report of costs by the clerk and the report had been confirmed by the court. The counsel for the parties had ample" opportunity for examination of the vouchers. The court denied the motion. 637. Whether after affirmance of a decree hy an appellate 'court a hill of review will he sustained. After the affirmance of a decree by the Supreme Court of Appeals of Virginia, a bill of review founded merely on error in the decree which is apparent on the face of the record will not be received, Camphell vs. Price, c&c, 3 Munf., 227 ; CamphelVs ex'ors vs.. CampheWs ex^or, 22 Grrat., 649 ; but there may be a bill of review to correct such a decree on the ground of after discovered evidence, Ihid; yet to sustaia the bill the greatest caution should be observed, and the new matters to be sufficient ground for the re- versal of the decree ought to be very material and newly discovered, and unknown to the party seeking. relief at the time the decree was rendered, and such as could not have been discovered by the use of tor. He set up his purchase by a bi^l to review the decree on that ground. The court held that aa this ground existed, and was known to the party be-- fore the decree, the bill of review could not be sustained. BILL OF KEVIEW. 703 reasonable diligence. CampbelVs ex'ors vs. CampheWs ex'or, 22 Grat. 649. After a decree was affirmed by the United States Supreme Court, a bill was filed to review the decree ; the ground of review asserted in the bill of review was, that the plaintiff was prevented from appearing and defending the former suit by the fraud and im- position of the prevailing party. The answer denied the fraud and imposition. The bill was wholly unsupported by the proofs. The Supreme Court said the failure to appear and defend his rights in the first suit, for aught that was shown, was attributable to the plaintiff's neglect and inattention, and the bill of review was properly dismissed. MoMicker's ex'ors vs. Perin, 22 How. 282.' 'From this statement of the case, it appears exceeding strange that it should ever have been presented for adjudication. The plaintiff in the bill of review showed himself persistent enough. But Purcell vs. Minor, 4 Wallace, 513, presents a case of even greater persistency. Mr. Justice Grier, pro- nounced the opinion of the court, rejecting the application to allow a bill of review. It here follows : " We have just decided this case and affirmed the judgment below, because by the complainant's own statement in his bill he has shown no sufficient grounds for a court of equity to grant him the relief sought. We will not repeat the points there decided. The case was too plain to leave any possible doubt respecting the correctness of our decision. Moreover, the record showed an application made in the court below, before the appeal to this court, for a. bill of review, which was decided by this court to have been properly refused. But it seems that the appellant is not satisfied with the judgment of the conrt, and now makes an application to the court to file another bill of review in the court below. " We have no doubt that the complainant honestly believes that he has been greatly wronged by the defendant below, who has taken the liberty of breaking his promise with regard to a parol contract for an exchange of property with the complainant; but we had supposed that in the opinion jnst delivered, we had shown clearly to the satisfaction of any person who did not suffer under some obliquity of mental vision, that by his own statement of his case, the com- plainant had mistaken his remedy ; and that although he may have suffered a wrong by the defendant's want of good faith, he had not presented a case which required a court of equity to disregard the statute of frauds, because it had been used for the purpose of committing a fraud. As if a party to a con- tract of exchange had received a deed and kept the land ; refusing to give a conveyance for the land given in exchange. " But in this case there was nothing shown but a breach of promise and a scrambling possession, followed by litigation. The present application shows 704 SUITS IN EQUITY. 638. Bule in Roemer vs. Simon & als. In Boemer vs. Simon & als., i Otto, 149, in the Supreme Court, a petition and an affidavit of the appellant were pre- sented, stating in substance that new and material evidence, previously unknown to him, had been dis- covered since the appeal. The affidavits of other persons showing the nature of the evidence were at- tached to the petition, and the court was asked to enter a rule requiring the appellees to show cause why the Supreme Court should not remit the record to the court below for a rehearing of the cause. The Supreme Court denied the motion ; holding that the lower court could not, after the term at which the final decree was made, grant a rehearing, and that the term had passed ; and that had the term con- tinued the proper practice would be to make appli- cation to the court below for a rehearing and have that court send to the Supreme Court a request for a return of the record, in order that it might pro- ceed farther with the cause, and that while if such a more perseverance and faith in the applicant than discretion or judgment; and presents not a single feature of a case proper for a bill of review. "By Lord Chancellor Bacon's rules, it was declared: 'No bill of review shall be admitted except it contain either error in law appearing in the body of the decree without farther examination of matters in fact, or some new matter which hath arisen in time after the decree ; and not on any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be granted by the special license of the court, and not otherwise.' " We will not put ourselves in the position of seriously noticing the reasons offered for a review of this case. SuflSce it to say that the petitioner has not presented a single feature of a case within the rules. He offers no new evi- dence but what he might as well have produced before, and which, if it had been produced, would not have justified a decree in his favor. Motion de- nied." BILL OF REVIEW, 705 Tequest were made in a proper case and under pro- per restrictions the Supreme Court might make the necessary order, it could not make it on the appli- ■cation of the parties; that the court below could alone make the request of the Supreme Court and that the application of the parties must be addressed to the lower court. 639. Affidavit to hill. A bill of review founded on newly-discovered evidence should be aiscompanied by an affidavit that such evidence has been discovered since the decree, and could not have been used at the time of the decree in consequence of the party's ignorance that such matter existed. Barnett & Co. vs. Smith & Co., 5 Call, 102. When the bill is filed by infants, such oath by the next friend of the infants is sufficient. Lee's infants vs. Braxton, 5 Call, 459. 640. Limitation of bill of review. In the Virginia State Courts, the bill of review must be exhibited within three years next after the final decree sought to be reversed has been made. Code 1873, ch. 175, sec. 5. An infant, married woman or insane person may exhibit the bill within three years after the re- moval of his or her disability. Ibid. It ought to appear from the bill of review that the term of limi- tation has not expired, or that the plaintiffs are protected by some of the savings of the statute. If this do not appear, the bill should be rejected. Shepherd vs. Larue, 6 Munf., 529. If the fact which is alleged in a bill of review, to bring the plaintiffs within the savings of the statute, be untruly stated therein, the answer of the other party may deny it ; and on the proofs (if in his favor) the bill will be dismissed. Ibid. It is not necessary to plead the statute of limitation to a bill of review. Ibid, 706 SUITS IN EQUITY. In the United States Circuit Courts, by analogy to the time- allowed for appealing from a decree, parties are usually allowed five years after the rendition of a final decree in which to file a bill of review, Thomas vs. Sarvie's heirs, 10 Wheat., 150, but it is within the discretion of these courts to permit the filing of a bill of review after this period, if the application be founded on matter discovered since the decree, Thomas vs. JSarvie's heirs, 10 Wheat., 150. Leave to file the bill ought not to be granted in a ease- where it appears that the plaintifi' is not aggrieved by the decree on account of the error assigned ; or, that being granted, the court ought to dismiss the bill where no other error is assigned. Ibid. 641. Injunction may he awarded on bill of review^ A court or judge allowing a bill of review may award an injunction to the decree sought to be reviewed. Code 1873, chap. 175, sec. 6. 641 a. On a bill of review, the court has power to- set aside a conveyance executed uiider the original decree. B'k TJ. S. vs. BitcMe, 8 Pet. 139. 642. • Mandamus to lower court. When a decree refusing to permit the bill of review to be filed is reversed by the Court of Appeals, and the lower court still refuses, the Court of Appeals will by man- damus compel the lower court to hear the cause. Kent, Paine & Co. vs. Dickinson, Judge, 25 Grat., 817. 643. Parties to bill of review. All the parties to the original bill ought to be parties to the bill of review; it is a principle of natural justice that no one ought to be affected by any decree without first being heard. 2 Barb. Ch. Pr. 94; Cooper's Eq. PL 95. 644. What statements the bill of review should make. In a- bill of review it is necessary to state the former BILL OF REVIEW. 707 bill and the proceedings thereon, the decree, and the point in which the complainant deems himself ag- grieved by it, and the ground of law, or new matter discovered, upon which he seeks to impeach it, Mitf. PI. 88. 645. Prayer of bill of review. The bill may pray simply that the decree may be reviewed and altered, or reversed in the point complained of, if it has not been carried into execution ; but if it has been car- ried into execution, the bill should also pray the farther decree of the court to put the party com- plaining of the former decree into the situation in which he would have been, if the decree had not been executed. Mitf. PI. 89. 646. Defences to bills of review. To a bill of re- view founded upon alleged errors apparent on the decree, the usual mode of defence is to plead the former decree in bar of the suit, and to object by "de- murrer to its being opened, alleging, . as a ground of demurrer, that there is no error. Cooper's Eq. PI. 96. The defendant may also demur alone or answer. Mitf. PI. 205. 647. When the bill is founded on the discovery of new matter it is seldom liable to demurrer, for being exhibited only by leave of court, the ground of the bill is generally well considered before it is brought. Mitf. PL, 205. 648. An answer is rarely filed save when the bill alleges the discovery of new matter. Then, an an- swer may be put in, controverting the fact that the 708 SUITS IN EQUITY. matter is newly discovered, and alleging other mat- ter which may rebut the force of such newly dis- covered matter. In the case of an answer to a bill of review founded on newly discovered facts, there is no farther restriction upon the defendant than there would be if he were answering an original bill : but to a bill of review for errors in law appar- ent in the proceedings and decree, the defendant in the bill of review cannot in his answer allege any new matter of fact. Thornton vs. Stewart, 7 Leigh 128. 649. Bills in the nature of hills of review. The only diiference between bills of review and bills in the nature of bills of review consists in the enrolment or non-enrolment of the decree. In the former case, a bill of review is proper, in the latter a bill in the nature of a bill of review. Story's Eq. PI., § 421 ; Mitf. PI., 90 ; Whiting vs. Fk U. S„ 13 Pet., 6, 13 ; Bowyer vs. Lewis, 1 H. & M., 553. The true office of such bills is to bring before the court new matter discovered since publication of the testimony in the original cause, when the decree has not been signed and enrolled. The new matter in such case is brought forward by a supplemental bill or a new bill in the nature of a bill of review, and it ought to be accompanied by a petition to rehear the original cause at the same time that it is heard upon the supple- mental bill. Mitf. PL, 91, 92, Story's Eq. PI., § 422. See farther as to these bills Story's Eq. PI., §§ 423, 424 and notes. In Bowyer, &g. vs. Lewis, 1 H, & M. 553, the dis- BILL OF REVIEW. 709 tinction drawn between a bill of review and a sup- plemental bill, in the nature of a bill of review in Mitford's Pleadings, was recognized. 660. If a party proceeds to a decree after a dis- covery of the facts upon which his new claim is founded, he will not be permitted afterwards to file a supplemental bill in the nature of a bill of review founded on such facts. Pendleton vs. Fay, 3 Paige 295 ; Story's Eq. PL, § 338a, 423. 651. Defences. The defences to such bills may be by demurrer, plea or answer, as in the case of other bills. Original hills in the nature of a hill of review. 652. None except parties and their privies in rep- resentation, such as heirs, executors, and administra- tors, can maintain a bill of review strictly so called. Wyatt's Pr. Reg., 95. Other persons in interest, and in privity of title or estate, aggrieved by the decree, such as devisees and remaindermen, obtain relief by an original bill in the nature of a bill of review. Mitf Eq. PI., 92, Wyatt's Prac, Reg., 98, 100. 653. When a petition in the nature of a hill of re- view does not prevent an appeal from the original decree. In O^Hara & als vs. McConnell & als, 3 Otto, 150, the Supreme Court held that a decree in chancery will be reversed if rendered against a woman who is shown by the bill to be both a minor and a feme covert, where no appearance by or for her has been entered, and no guardian ad litem appointed, and that 710 SUITS IN EQUITY. the making of a conveyance, as ordered by such a decree, does not deprive the defendant of the right of appeal ; and that neither a subsequent petition in the nature of a bill of review, nor anything set up in the answer to such petition on which no action has been had by the lower court, can prevent a party from appealing from the original decree. 664. Appeal from decree on hill of review. When a final decree has been pronounced by the Court of Chancery upon a bill of review, it is competent to the party, against whom such decree is pronounced, to appeal therefrom to the Court of Appeals. Shep- parWs ex'or vs. Starke, <&c., 3 Munf., 29. See Stock- ton vs. Cook, 3 Munf., 68, cited sec. 635 ante. APPENDIX. APPENDIX. I. Mules of practice in suits in equity adopted hy the United States Supreme Court for the zcse of the UnitedSlates Oircuit Courts, pro- ' mulgated on March 2, 1842, in forCe August 1, 1842, with subsequent amendments'. Preliminary Regulations. , I. The Circuit Courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings for issuing and re- turning mesne and final process andcimmissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to- the hearing of all causes upon their merits. II. Tb6 clerk's office shall be open, and the clerk shall be in attendance- therein, on the first Monday of every month, for the purpose of receiving, en- tering, entertaining, and disposing of all motions, rules, orders, and other pro- ceedings, which are grantable of course, and applied for or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. III. Any judge of the Circuit Court, as well in vacation as in term, may, at chambers, or on the rule days, at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing: of all causes upon their' merits, in the same manner and with the same effect as the Circuit Court could make and direct the same in term, reasonable notice of the application therefor being first given to the adverse party, or his solic- itor, to appear and show cause to the contrary at the next rule day thereafter,, unless some other time is assigned by the judge for the bearing. IV. All motions, rules, orders, and other proceedings made and directed at chambers, or, on rule days, at the clerk's office, whether special or of course,, shall be entered by the clerk in an order book to be kept at the clerk's office, on the day when they are made and directed ; whioh book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such order book, touching any and all the matters in the suits, to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the par- ties for whom they appear, and whom they represent, in all cases where per- sonal notice on the parties is not otherwise specially required. Where the- Bolicitors for all parties in a suit reside in or near the same town or city, the judge? of the Circuit Court may, by rule, abridge the time for notice of rules, 90 714 RULES OF PRACTICE orders, or other proceedings, not requiring personal service on the parties, in their discretion. V. All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and execute decrees, for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers; for taking bills pro confesso; for filing exceptions, and for other proceedings in the clerk's office which do not, by the rales hereinafter pre- scribed, require any allowance or order of the court, or of any judge thereof, shall be deemed motions and applications, grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded by any judge of the court, upon special cause shown. VI. AH motions for rules or orders and other proceedings, which are not grantable of course, or without notice, shall, unless a different time be assigned by a judge of the court, be made on a rule day, and entered in the order book, and shall bo heard at the rule day next after that on which the motion is made. And if the adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex-parte, and granted, as if not objected to, or refused, in his discretion. Process, VII. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill ; and, unless otherwise provided in these rules, or specially ordered by the Circuit Court, a writ of attachment, and if the defendant cannot be found, a writ of sequestration, 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. VIII. 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 Circuit Court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as for example, lor the execution of a con- veyance of land, or the delivering up of deeds or other documents, the decree shall, in all oases, 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 «haU not be discharged, unless upon a full compliance with the de6ree and the payment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue a,gainst his estate upon the return of non est inventus, to cgmpel obedience to the decree. IX. When any decree or order is for the delivery of possession upon proof made by affi lavit 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. X. Every person, not being a party in any cause, who has obtained an order, or in whose favor an order shall have been made, shall be enabled to enforce obedience to such order by the same process as if. he were a party to the cause ; and every person, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party in the cause. FOB UNITED STATES COURTS. 715 Service of R-oceas. XI. No process of sabpoena shall issue from the clerk's office in any suit in 'Equity, until the bill is filed in the office. XII. Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of ^course, upon the application of the plaintiff^ which shall be re- ■ tnrnable into the clerk's office the next rule day, or the next rule day but one, at the election ot the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a mem- orandum, that the defendant is to 'enter his appearance in the suit in the clerk's office, on or before thfe day at which the writ is returnable ; otherwise, the bill may be taken pro confesso. When there are more than one defen- dants, a writ of subpoeaa may, at the election of the plaintiff, be sued ont separately for each defendant, except in the case of husband and wife, de- fendants, or a joint subpoena against all the defendants. XIII. (As amended ) The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. XIV Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, toties quoties, against such defendant, if he shall require it, until due service ia made. XV. The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise ; in the latter case, the person serving the process shall make affidavit thereof. XVI. Upon the return of the subpoena, as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. Appeararuie. XVII. The appearance day of the defendant shall be the rule day, to which the subpoena is made returnable; provided, he has been served with the pro- cess twenty days before that day ; otherwise, his appearance day shall be the next rule day succeeding the rule day, when the process is returnable. Tbe appearance of the defendant, either personally or by his solicitor, shall be entered in the order book on the day thereof by the clerk. Bills taken Pro Confesso. XVIII. (As amended.) It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon mo- tion for that purpose, to file his plea, demurrer, or answer to the bill, in the clerk's office, on the rule day next succeeding that of entering his appearance. In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order book that the bill' be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be de- creed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff if he requires any discovery or an- swer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court 716 EULES OF PEACTICE or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speett the cause. [See 7 Otto, viii.] XIX. (As amended.) When the bill is taken pro confesso, the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of •tha defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiflf in the suit up to that time, or such part thereof as the court shall deem rea- sonable, and unless the defendant shall undertake to file his answer within such time. as the court shall direct, and submit to such other terms as the- court shall direct, for the purpose of speeding the cause. [See 7 Otto, viii.] ^ame of Bills. • XX. Every bill, in the introductory part thereof, shall contain the names,, places pf abode, and citizenship, of all the parties, plaintiffe and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows: " To the judges of the Circuit Court of the United States for the- District of . A. B., of , and a citizen of the State of , brings this, his bill, against C. D., of , and a citizen of the State of , and E. F., of ; — , and a citizen of the State of , and there- upon your orator complains and says, that, &c." XXI. The plaintifi', in his bill, shall be at liberty to omit, at his option, the- part which is usually called the common confederacy clause of the bill, aver- ring a confederacy between the defendants ^o injure or defraud the plaintiff; also what is commonly called the charging part of the bill, setting forth the- matters or excuses, which the defendant is supposed to intend to set up by way of defence to the bill; also, what is commonly called the jurisdiction clause of the bill, that the acts' complained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be de- murrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid, by counter averments, at his option, any matter or thing, which he supposes will be insisted upon by the defendant, by way of defence or excuse, to the case made by the plaintiff for relief. The prayer of the bill shall ask the special relief, to which the plaintiff supposes himself entitled, and also shall contain a prayer for general relief; and if an injunc- tion or a writ of ne exeat regno, or any other special order pending the suit^ is required, it shall also be specially asked for. XXII. If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason why they are not made parties, by showing them to be without tha jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction, and may properly be made parties, the bill may pray that process may issue to make them parties to . the bill, if they should come within the jurisdiction. XXIII. The prayer for process of subpoena in the bill shall contain the names of the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardian- ship, shall state the fact so that the court may take order thereon as justice may require upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order pending the suit, is asked for in the prayer for relief, that shall be sufficient, without repeating the same in the prayer for process. FOR UNITED STATES COURTS. 717 XXIV. Every bill shall contain the signature of counsel annexed to it, "which shall be considered as an affirmation on his part, that, upon the in- strnotionB given to him and the case laid before him, there is good ground for the suit, in the manner in which it is framed. ' XXV. In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness and directness in the allegations of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the -sum which is allowed in the State Court of Chancery in the district, if any there be ; but if there be none, then it shall, not exceed the sum- of three dol- lars for every bill or answer. Scandal and Impertinence in Bills. XXVI. Every bill shall be expressed in as brief and succinct terms as it Treasonably can be, and shall contain no unnecessary recitals of deeds, docu- ments, contracts, or other instruments in hcec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on exceptions, be referred to a master by any judge of the court for im- pertinence or scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court, or a judge thereof, shall other- wise order. If the master shall rl^ort that the bill is not scandalous or impertinent, the defendant [plaintiff] shall be entitled to all costs occasioned 'by the reference. XXVII. No order shall be made by any judsfl for referring any bill, answer, or pleading, or other matter or proceeding depending before the court ■for scandal or impertinence unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered scanda- lous or impertinent ; nor unless the exceptions shall be filed on or before the next rule day, after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be con- ■aidered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule day, or the Master shall certify that further time is necessary for him to complete the examination. Amendmemii of Bills. XXVIII. See p. 655. XXIX. See p. 655. XXX. If the plaintiff, so obtaining any order to amend his bill after answer or plea or demurrer, or after replication, shall not file his amendments -or amended bill, as the case may require, in the clerk's ofSce, on or before the next sncceeding rule day he shall be considered to have abandoned the same, -and the cause shall proceed as if no application for any amendment had been made. Demiurreri and Pleas. XXXI. See p. 171 anU. ' XXXII. See p. 171 ante. XXXIII. See p. 171 ante. XXXIV. See p. 171 ante. XXXV. See p. 172 ante. XXXVI. See p. 172 ante. XXXVII. See p. 172 ante. XXXVIII. See p. 172 ante. 718 RULES OF PRACTICE AnKwen. XXXIX. The rule, that if a defendant submits to answer he shall answer fully to all the matters of the bill, shall no longer apply in oases where he might by plea protect himself from such answer and discovery. And the de- fendant shall be entitled in all oases by answer to insist upon all matters of defence (not being matters of abatement, or to the character of the parties, or matters of form) in bar. of or to the merits of the bill of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable considera- tion, without notice, may set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of snch plea; XL. A defendant shall not be bound to answer any statement or charge in the bill unless specially and particularly interrogated thereto ; and a defen- dant shall not be bound to answer any interrogatory in the bill except those interrogatories which such defendant is rfquired to answer ; and where a de- fendant shall answer any statement or charge in the bill, to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. [This rule repealed. See XGIIL] XLI Origirial form. The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other,, and numbered consecutively 1, 2, 3, Ac. ; and the interrogatories which each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the efieot following, that is to say ; " The defendant (A. B.) is required to answer the interrogatories numbered respectively 1, 2, 3, &c."; and the office copy of the bill taken by each defendant shall not con- tain any interrogatories except those which such defendant is so required to answer, unless snch defendant shall require to be furnished with a copy of the whole bill. Amended ; see XOVIII. XLII. The note at the foot of the bill, specifying the interrogatories which each defendant is required to answer, shall be considered and treated as part of the bill, and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed shall be considered and treated as an amendment of the bill. XLIII. Instead of the words of the bill now in use, preceding the interro- gating part thereof, and beginning with the words, " To the end therefore," there shall hereafter be used words in the form or to the effect following :' " To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, fulU true, direct and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer, that is to say : — " ■' 1. Whether, &c." " 2. Whether, &c." XLIV. A defendant shall be at liberty, by answer, to decline answering any interrogatory or part of an interrogatory from answering which he might have protected himself by demurrer ; and he shall be at liberty so to decline, notwithstanding he shall answer other parts of the bill, from which he might have protected himself by demurrer. FOR UNITED STATES COURTS. 719 XLV. No special replication to any answer shall be tiled. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or witbout the payment of costs, as the court, or a judge thereof, may in his discretion direct. XLVI. See p. 655 ante. Parties to Bills. XLVII. In all cases where it shall appear to the court that persona, who migbt otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of bqing made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may in their discretion proceed in the cause without making such persons parties ; and in such oases the decree shall be without prejudice to the rights of the absent parties. XLVIII. Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court, in its discretion, may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. XLIX. In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the persons beneficially interested in the estate or the pro- ceeds, or the rents and profits, in the 'same manner and to the same extent as the executors or administrators in suits concerning personal estate represent; the persons beneficially interested in such personal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate or rents and profits parties to the suit; but the court may, upon consideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. L. In suits to execute the trusts of a bill 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. LI. 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 neces- sary 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. LII. Where the defendant shall, by his answer, suggest that the bill is de- fective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objec- tion only ; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order-book, in the form or to the effect following (that is to say) ; " Set down upon the defendant's objection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled, as of course, to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. LIII. If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objec- tion, and therein specified by name or description the parties to whom the 720 EULES OF PRACTICE objection applies, the conrt (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties. Nominal Parties to Bills. LIV. 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 subpoena upon him, need not appear and answer the bill, unless the plaintiff specially requires him so to do by the prayer of his bill ; but he may appear and answer at his option; and if he does not appear and answer he shall be bound by all the proceedings in the cause. If the plaintiff shall re- quire him to appear and answer he shall be entitled to the costs of all the ■proceedings against him, unless the court shall otherwise direct. LV. Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appearance and plead, demur, or answer to the same within the time prescribed therefor by these rules, the plaintiff shall be entitled as of course, upon motion without notice, to such injunction. But special injunctions shall be 'grantable only upon due notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex parte, if the adverse party does not appear at the time and place ordered. In every case where an injunction, either the common injunction or a special injunction, is awarded in vacation, it shall, unless previously dissolved by thejadge granting the same, continOe until the next term of the court, or until it is dissolved by some other- order of the court. Bills of Revivor and Supplemental Bills. LVI. Whenever a suit in equity shall become abated by the death of «ither party, or by any other event, the same may he revived by a bill of re- vivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same ; which bill may be filed in the clerk's office at any time ; and upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown' at the next rule day, which shall occur after fourteen days from the time of the service of the same process, the suit shall stand re- vived, as of course. LVII. Whenever any suit in equity shall become defective, from any event happening after the filing of the bill (as, for example, by a change of interest in the parties), or for any other reason a supplemental bill, or a hill in the nature of a supplemental- bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rnle day, upon proper cause shown, and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demar, plead or answer thereto, on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by a judge of the court. LVIII. It shall not be necessary in any bill of revivor, or supplemental bill, to set forth any ef the statements in the original suit, unless the special circumstances of the case may require it. Answers. LIX. Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by FOR UNITED STATES COURTS. 721 any Cironit Court to take testimony or depositions, or before any Master in •chancery appointed by any Circuit Court, or before any judge of any court of a State or Territory. Amendment of Answers. LX. After an answer is put in, it may be amended as of coarse, in any mat- ter of form, or by filling up a blank, or correcting a date, or reference to a document or other small matter, and be resworn, at any time before a replica- tion is put in, or the cause is set down for a hearing upon bill and answer. But after replication, or such setting down for a hearing, it shall not be amended in any material matters, as by adding new facts or defences, or qualifying or altering the orijjinal statements, except by special leave of the . court or of a judge thereof, upon motion and ciuse shown after due notice to the adverse party, supported, if required, by affidavit. And in every case "where leave is so granted, the court, or the judge granting the same, may, in his discretion, require that the same be separately engrossed and added as a distinct amendment to the original answer, so as to be distinguishable there- from. Sxeeptions to Answers. LXI.' After an answer is filed on any rule day, the plaintiff shall be al- lowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon csyise shown to the court or a judge thereof ; and if no exception shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. LXII. When the same solicitor is employed for two or more defendants, and separate answers shall be filed, or other proceedings had by two or more of the defendants separately, costs shall not be allowed for such separate an- swers or other proceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were necessary or proper, and ought not to have been joined together. LXIII. Where exceptions shall be filed to the answer for insufficiency ■within the period prescribed by these rules, if the defendant shall not submit to the same, and file an amended answer on the next succeeding rule day, the plaintiff shall forthwith set them down for a hearing on the next succeeding rule day thereafter, before a judge of the court ; and shall enter, as of course, in the order book an order for that purpose. And if he shall not so set down the same for a hearing, the exceptions- shall be deemed abandoned and the answer shall be deemed sufficient ; provided, however, that the court,' or any judge thereof, may, for good cause shown,' enlarge the time for filing excep- tions, or for answering the same, in his discretion, upon such terms as he may deem reasonable. LXIV. If, at the hearing, the exceptions shall be allowed, the defendant flhall be bound to put in a full and complete answer thereto, on the next suc- ceeding rule day ; otherwise the plaintiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the defendant to make a better answer to the matter of the exceptions ; and the defendant, when he is in custody upon such writ, shall not be discbarged therefrom but by an order «f the court, or of a judge thereof, upon his putting in such an- swer and complying with such other terms as the court or judge may direct. LXV. If, upon argument, the plaintiff's exceptions to the answer shall be overruled, or the answer shall be adj udged insufficient, the prevailing party shall be entitled to all the costs occasioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. 91 722 RULES OF PRACTICE Seplication and Issue. LXVI. Whenever the answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plaintiff shall file the general repli- cation thereto on or before the next succeeding rule day thereafter ; and in' all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the defendant shall be entitled to an order, as of course, for a dismissal of the suit, and the suit shall thereupon stand dismissed, unless the court or a judge thereof shall, upon motion lor cause shown, allow a repli- cation to be filed nunc pro tunc, the plaintiff submitting to speed the canse,. and to such other terms as may be directed. Testimony, how taken. LXVII. Original form : After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties or severally by either party, upon interrogatories filed by the party^ taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross interrogatories before the issuing of the com- mission, and if no cross interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or com- missioners shall be named by the court or by a judge thereof. If the parties shall so agree, the testimony may be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. [Amended in 1834 and again in 1862. See XGIV and XCV and XGVII, post.'\ LXVIII. Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examina- tion of the witness either under a commission or by a new deposition taken under the acts of Congress, if a court or a judge thereof shall, under all the- circumstances, deem it reasonable. LXIX. Three months, and no more, shall be allowed for the taking of tes- timony after the cause is at issue, unless the court or judge thereof shall, upon special cause shown by either party, enlarge the time, and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Im- mediately upon the return of the commissions and depositions containing the testimo'ny, into the clerk's office, publication thereof may be ordered in the clerk's office- by any judge of the court, upon due notice to the parties or it may be enlarged, as he may deem reasonable under all the circumstances. But by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order book, or indorsed upon the deposition or testimony. [See XCVII, post.] j Testimony De Bene Esse. LXX. After any bill filed, and before the defendant hath answered, the. same, upon affidavit made that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintifi', issue a commipsion to such commissioner or commissioners as a judge of the court may direct, take the examination of such witness or wit- nesses de bene esse, upon giving due notice to the adverse party of the tima and place of taking bis testimony. FOR UNITED STATES COURTS, 723 Form of the last Interrogatory. LXXI. The last interrogatory, in the written interrogatories to take testi- mony now commonly in use, shall in the future be altered, and stated in sub- atanoe thus : " Do you know, or can you set forth any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination or the matters in question in this cause ? If yea, set forth the same fully and at large in your answer." Gross Sill. LXXII. Where a defendant in equity files a cross bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be compellable to an- swer the cross bill. The answer of the original plaintiff to such cross bill may be read and used by the party filing the cross bill, at the hearing, in the same manner and under the same restrictions as the answer, praying relief, may now be read and used. Beference to and Proceedings before Masters. LXXIII. Every decree for an account of the personal estate of a testator or intestate shall contain a direction to the master, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such per- sonal estate are outstanding or undisposed of, unless the court shall otherwise direct. LXXIV. Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made, shall cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the reference was made; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the costs of the party procuring the reference. LXXV. 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 er parte, or in his discretion to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor, of sucL 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 j udge thereof for an order to the master to speed the proceedings, and to make his report, and tO' certify to the court or judge the reasons for any delay. LXXVI. In the reports made by the master to the court, no part of any state of factB,'charge, affidavit, deposition, examination or answer, brought in or used before them, shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or answer shall be identified, specified, and referred to, so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer were so brought in or used. LXXVII. The master shall- regulate all the proceedings in every hearing before him, upon every such reference, and he shall have full authority to examine the parties in the cause upon oath, touching all matters contained in the reference ; and also to require the production of all books, papers, writings, yonchers, and other documents applicable thereto ; and also to examine on 724 RULES OF PRACTICE •oath, viva voce, all witnesses jirodaced by the parties before him, and to order the examination of other witnesses to be taken, under a commiBsion to be issued upon his certificate from the clerk's ofiBce, or by deposition according "to the ,act8 of Congress or otherwise as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before' liim ; and generally to do all other acts, and direct all other inquiries and prooeediugs in the matters before him, which he may deem necessary and proper to the justice and merits thereof, and the rights of the parties. LXXVIII. Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpceua 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, maater, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court ; and if any witness shall refuse to appear, or to give ■evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or 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. But nothing herein contained shall prevent the ex- amination of witnesses viva voce when produced in open court, if the court fihall in its discretion, deem it advisable. LXXIX. 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 accounts so brought in, shall be at liberty to examine the accounting party viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct. LXXX. 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. LXXXI. The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written interrogatories, or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examination 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 neces- sary. LXXXII. The circuit courts may appoint- standing masters in chancery in their respective districts, both the judges concurring in the appointment; and they may also appoint a master pro hac viae in any particular case. The •compensation to be. allowed to every master in chancery for his services in any particular case shall be fixed by the Circuit Court in its discretion, having regard to all the circumstances thereof; and the compensation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation ; but when the compensation is allowed by the court, he shall be entitled to an attachment for the amount against the party, who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. Exceptions to Report of Master. • LXXXIII. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of £ling the report to file exceptions thereto ; and if no exceptions are within FOR UNITED STATES COURTS. 725' that period filed by either party, the report shall stand confirmed on the next rule day after the month has expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session, or if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. LXXXIV. And in order to prevent exceptions to reports from being filed for IrivoloQs causes, or for mere delay, the party whose exceptions, are over- ruled shall, for every exception overruled, pay costs to the other party, and for every exception allowed, shall be entitled to costs, — the costs to be fixed ' in each case by the court, by a standing rule of the Circuit Court. Decrees. LXXXV. Clerical mistakes in decrees, or decretal orders, or errors arising from any accidental slip or omissioa, may, at any time before an actual eurol- ment thereof, be corrected by order of the court or a judge thereof' upon peti- tion, without the form or expense of a rehearing. LXXXVI. 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 ^ny other prior proceeding, shall be recited or stated in the decree or order ■ but the decree and order shall begin in substance as follows : " This cause came on to be heard (or to be further heard, as the case may be) at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz. : [Here insert the decree or order.] Guardians and Prochein Amis. LXXXVII. Guardians ad litem, to defend a suit may be appointed by the court, or by any jud^e thereof, tor infants or other persona, who are under guardianship, or otherwise incapable to sue for themselves; all infants and other persons so incapable may sue by their guardians, if any, or by their prochein ami, subject, however, to such orders as the court may direct for the protection of infants and other persons. LXXXVIII. See p. 516, anie. LXXXIX. The circuit courts (both judges concurring therein) may make any other and further rules and regalations for the practice, pioceedings, and process, mesne and final, in their respective districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time alter and amend the same. XC. In all cases where the rules prescribed by this court, or by the Circuit Court, do not apply, the practice of the Circuit Court shall be regulated by the present practice of the High Court of Chancery iu England, so tar as the same may reasonably be applied consistently with the local circumstances and Iccal convenience of the district where the co'jrt is held, not as positive rules, but as furnishing just analogies to regulate the practice. XCI. 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 a£Brmation to the- truth of the facts stated by him. XCII. These rules shall take effect, and be of force, in all the circuit courts of the United Slates, from and after the first day of August next ; but they may be previously adopted by any Circuit Court iii its discretion ; and when and as soon as these rules shall so take effect, and be of force, the Rule." of Practice for the Circuit Courts in Equity suits, promulgated and prescribed by this court in March, 1822. shall henceforth cease, and be of no further force or effect. And the clerk of this court is directed to have these rules printed, and to transmit a printed copy thereof, duly certified, to the clerks of the several courts of the United States, and to each of the judges thereof. XCIII. (December term, 1850.) Ordered that the fortieth rule, heretofore 726 RULES OF PEACTICE. adopted and promnlgated by this court as one of the rales of practice in suits in eqaity in the circuit courts, be and the same is hereby repealed and an- nulled And it shall not hereafter be necessary to interrogate a defendant specially and particularly upon any statement in the bill, unless the complain- ant desires to do so to obtain a discovery. XCIV. (De9ember term, 1854.) Amendment of the 61th Rule. See p. 482, ante. XCV. (December term, 1861 ) Amendment of the <h Rule. See pp. 482-483. XOVI. April \?>th, 1864. In suits in eqaity for the foreclosure of mortgages in the circuit courts of the United States, or in any of the courts of the terri- tories having jurisdiction of the same, a decree may be rendered for any balance that may be found due to the complainant over and above the pro- ceeds of tte sale or sales, and execution tnay issue for the collection of the same, as is provided in the eighth rule of this court regulating the equity practice, where the decree is solely for the payment of money. (See p. 584 ante.) XCVII. (December term, 1869.) [Court may assign the time of taking evi- dence ] Where the evidence to be adduced in a cause is to be taken orally, as provided in the order passed at the December term, 1861, amending the 67th Gen. Rale, the court may, on motion of either party, assign a time within ■which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defence, and a time thereafter within which the complainant shall take, his evidence in reply ; and no farther evidence shall be taken in the cause, unless by agreement of the parties, or by leave of the court first obtained on motion for caase shewn. XCVIII. December term, 1871. Amendment of 41s« Rule. 13 Wal., XL If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interroga- tories, tlie answer of the defendant, though under oath, except such part thereof as shall be directly rjesponsive to such interrogatories, shall not be evi- dence in his favor, unless the cause be set down for hearing on bill and an- swer only ; but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2nd, 1864. XCIX. January 13, 1879. Called Eule 93 in 7 Otto., VII. When ap ap- peal from a final decree in an equity suit, granting or dissolving an injunction is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion at the time of such allowance, make an order suspend- ing or modifying the injunction daring the pending of the appeal upon such terms as to bonoT or otherwise, as he may consider proper for the security of the rights of the opposite party. C. {Called Equity Rule 94, promulgated October term, 1881,] Every bill brought by one or more stockholders m a corporation, against the corpora- tion and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder 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 shareholders, and the causes of his failure to obtain such action. i II. Doctrine concerning Parties in United States Circuit Courts. 1. General rule. The general rule in equity is, that all persons materially interested, either legally or equitably, in the subject matter of a suit, should be made parties to it, either as plaintifls or defendants, however numerous they may be, so that there may be a complete decree, which shall bind them all. Caldwell vs. Tag- gart, 4 Pet. 190, Whiting vs. Bank U. 8., 13 Pet. 6, Hopkirk vs. Page, 2 Brock. 20. See Coy vs. Mason, 17 How. 580. 2. Dispensing with parties. If possible, consistently with the merits of the case, the United States Courts dispense with all par- ties over whom the courts would not possess jurisdiction. Milligan vs. Milledge, 3 Gran., 220, Elwendorf vs. Taylor, 10 Wheat. 152, Vattier vs. Smde, 7 Pet. 252, Payne vs. Sook, 7 Wal. 431. 3. JExneptwns to general rule in United States Courts. In the United States Circuit Courts, the general rule is as stated before. But there are qualifications arising out of public policy and the necessities of particular cases. The true distinction appears to be as follows : First, Where a person will be directly aflfected by a decree, he is an indispensable party, unless the parties are too nu- merous to be brought before the court, when the case is subject to a special rule. Secondly, Where a person is interested in the con- troversy, but will not be directly affected by a decree made in his absence, he is not an indispensable party, but he should be made a party if possible, and the court ■n'ill not proceed to a decree with- out him, if he can be reached. Thirdly, Where he is. not inter- ested in the controversy between the immediate litigants, but has an interest in the subject matter, which may be settled in the suit, and thereby prevent further litigation, he may be a party or not, at the. option of the complainants. Williams vs. Bankhead, 19 Wal. 563, 571. 4. Hearing in the absence of parties beyond the jurisdiction^ The act of Congress of February 28, 1839, substantially the same with section 737, Eev. Stat. 1873-4, p. 139, provides that causes may be heard in the United States Courts, though there be defend- ants beyond their jurisdiction, as to those parties properly before these courts, such hearing to be without prejudice to persons not regularly served with process, and not voluntarily appearing to answer; and the act further provides that the absence of parties not inhabitants, nor found within the district in which the suit is. 728 PARTIES shall constitute no abatement or other objection to the suit. Thia. act dispenses with the necessity of making persons parties who have a nominal interest, and are beyond the jurisdiction of the court, and when a decree can be made without prejudicing them, Union Bk. of Louisiana vs. SLofford, 12 How. 327, but it has been held that neither' this act, nor the 47th rule of equity practice of the U. S. Circuit Courts enables a circuit court to make a decree in equity, in the absence of an iddispensable party, whose rights must necessarily be affected by such decree. Curtis, J., in Shields (£- ■ als. vs. Barrow, 17 How. 139. See Russell vs. Clarke's ex'ors, 7 Cranch 98, Mech. Bk. Ahx'a vs. 8eUm, 1 Pet 299, Conson d als. vs. Millandon <£ als., 19 How. 113; see also McCoy va. Rhodes, 11 How. 131, as to the eflect of 47th and 48th rules of Equity prac- tice of the U. S. Circuit Courts. See also 22nd Eule of practice- as to frame of bill in such cases. 5. When party must be wilhin the jurisdiction, or voluntarily ap- pear, to bind him personally. To give judicial proceedings any validity, there must be a competent tribunal to p^ss upon their subject matter; and if that involves merely a determination of the^ personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or by his volun- tary appearance. Pennoyer vs. Ntff, 5 Otto. 714. 6. Form,al parties. As to formal and unnecessary parties, see Wormley vs. Wormley, 8 Wheat. 451, Carneal vs. Banks, 10 "Wheat. 188, Vattier vs. Sinde, 7 Pet. 266. 7. Proper, though not indispensable, parties. As to parties, having a substantial interest, but not so connected with the con- troversy that their joinder is indispensable, see Cameron vs. Mc- Poberfs, 3 Wheat. 591, Osborn Mf>. Bk U. States. 9 Wheat. 733, Sarding vs. Handy, 11 Wheat. 132, Hngan vs. Wiilk(r, 14 How. 36 Elwendorf vs. Taylor, 10 Wheat. 167, Union Bank, <£b vs. Stafford, 12 How. 327, N. 0-. Canal d Banking Co vs. Stcfford^ 12 How. 343, Trades Bank vs Campbell. 14 Wal 97, Pnyne vs. Sook, 7 Wal. 431, 12 How. 343, 7 Pet. 252, 12 Wheat. 193, French. vs. Shoemaker, 14 Wal 314. 8. Indispensable parties As to parties having an interest in- separable from the interests of those belore the court, and who are therefore indispensable parties, Cameron vs. McRoberts 3 Wheat. 591, Mallow vs. Hinde; 12 Wheat 197, Shields vs. Barrow, 17 How. 140, JVorth Ind E. E Co vs Michigan Cent. E. E. Co., 15 How. 233, 19 How. 113, 17 How. 130. Robertson vs, Carson, 19 Wal. 94, presented a case in which the court held that E , one of the trustees, C, the purchaser from the executors, and F., a retiring member of a partnership, were all in- dispensable parties. 9. Parties beyond the jurisdiction. As to persons beyond the jurisdiction of the court who are necessary or proper parties, see IN UNITED STATES CIRCUIT COURTS. 729 the 22d rule of equity practice for the Circuit Courts U. S., 19 How. 113, 12 How. 327. The bill may be dismissed as to a party over whom the court has no jurisdiction, and a decree made as to other defendants, if it can be done without afifecting his interests. Vattier vs. Minde, 7 Pet. 252. 10. Persons who should not he parties. No one ought to be made a plaintiff in whom there is no interest, and no one a defend- ant from whom nothing is demanded. Kerr vs. Watts, 6 Wheat. 559 Mech. Bk. Alex a vs. Beton, 1 Pet. 299. In French vs. Bhoe- maker, 14 Wal. 314, A, B, and D, having a dispute about their rights in a railroad company, entered into a contract of settlement, by which they divide the stock in certain proportions among them. A. refused to carry out the contract. B. filed a bill to compel him to stand to his agreement. A., after answering, filed a cross bill, insisting that B. ought to have made C. and D. parties to his origi- nal proceeding. Held, that the bill, not 'seeking any relief against 0. and D., it was not necessary that they should be parties. 11. Numerous parties. When parties are numerous, and the suit is tor a common object, the court entertains jurisdiction at the suit of certain of the parties suing in behalf of themselves and others having a common interest. Smith (& ah. vs. Swormstedt, 16 How 288, 12 Cause retained in the United States court until the matter is litigated with persons not joined. In a proper case, the United States Circuit Court will retain the cause while matters are liti- gated before the State Courts or other tribunals, between the com- plainant and others, not made parties to the suit, because of the peculiar structure of the limited jurisdiction of the United States Courts over persons. Mallow vs. Hinde, 12 Wheat. 193. 13. Who may unite in one hill. Where one partner dies, a creditor may go at once into equity for an account of his assets, and may and should join the surviving partner, and the represen- tative of another deceased partner: And several distinct creditors may join in such a bill ; and where the deceased partner was a member of two firms, the creditors of both firms may join, and may make the surviving partners of both firms, and the represen- tatives of any deceased partner of either firm, parties defendant. Nelson vs. Hill, 5 How. 127. 14. What are the rights of alien enemies made parties. "It is clear that an alien enemy is liable to be sued, and this carries with it the right to use all the means and appliances of defence." Swayne, J., in McVeigh vs. United States, 11 Wal. 267. 15. Wcmt of proper parties. Where a bill stated that the com- plainant had an interest in the subject matter of a former suit in equity, and had applied to be admitted a party, and was refused, and a decree had been made in that suit in fraud of his rights, and 92 730 PARTIES the bill prayed to have that decree set aside, the court held, that the bill was not a bill of review, but an original bill; and so dis- missed the bill because both complainant and defendants were citi- zens of Kentucky, and the court had no jurisdiction for want of proper parties. Wickliffe vs. Eve, 17 How. IBS. In Milligan vs. Milledge, 3 Or. 220, the Court held that the Cir- cuit Court erred in dismissing the bill for want of parties, and erred too in admitting the plea of the want of proper parties^ the bill suggesting that the parties joined were out of the jurisdiction of the court.^ 16. Non-joinder of parties will not oust jurisdiction of United States Courts. These courts will not suflFer their jurisdiction in an equity cause to be ousted by the circumstance of the joinder or non-joinder of merely formal parties, who are not entitled to sue or liable to be sued in the United States Courts, Wormley vs. Wormley, 8 Wheat., 322, but will rather proceed without them and decide upon the merits of the case between the parties who have the real interests before it, whenever it can be done without prejudice to the rights of others. Ibid. And so, in Elmendorf vs. Taylor, 10 Wheat., 152, it was held that if the cause can be completely decided as between the litigant parties, an interest in some other person who cannot be reached by process should not prevent a decree. 17. When objection for want of parties may be taken. See Story vs. Livingston, 13 Pet., 359 ; Livingston vs. Woodsworth, 15 How. ; Connor vs. Millaudon, 19 How., 113 ; Lewis vs. Dar- ling, 16 How., 1;' Mech. .Bank Alex. vs. Seton, 1 Pet., 299; Whiting vs. B'h V. S., 13 Pet., 14, and Hunt vs. Wickliffe, 8 Pet., 215, as to the period at which objection for want of parties may be taken. See also Story's Eq., PL, 236. The 53d rule of the Supreme Court governing the equity prac- tice in the United States Circuit Courts should be specially referred to. See p. 7i9, ante. See also 47-52d. rules and 54th -rule, pp. 719, 720, ante. The doctrine of parties has been applied, in United States Courts, to the following special cases : 18. Absent persons. See sec. 4, p. 727, ante. See sec. 738 Eev. Statutes U. S. In Cooper vs. Reynolds, 10 Wal., 318, the court said : " The plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within that territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remedy. It says that upon affidavit being made of that fact a writ of attachment may be issued and levied ' Bee Bee. 7, ante. ' See sec. 4, ante. IN UNITED STATES CIRCUIT COURTS. 731 «n any of the defendant's property, and a publication may be made warning him to appear, and that thereafter the court may proceed in the case, whether he appears or not. If the defendant appears the cause becomes mainly a suit in personam, with the added inci- dent that the property attached remains liable, under the control ■of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, .the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff." 19. Administration of estates and disposition of assets. See Sarding vs'. Sandy, 11 Wheat, 103. An administrator to whom letters of administration were granted before the separation of the District of Columbia from the original State, could not, after that separation, maintain an action in the county of Washington by virtue of those letters of administration ; but must take out new letters within the District. Femwick vs. Bears, 1 Orahch, 258. In Yaughan vs. Northup, 15 Pet., 1, the Supreme Court held that an administrator appointed in a State was not liable to be sued in the District of Columbia in his official capacity for assets lawfully received by him under his letters of administration, that he was only accountable to the proper tribunal of the government from whose 'laws he derived his authority, not to the tribunals of another State. See also Feale vs. Phipps, 14 How., 368. An administrator de bonis nan cannot sue the former administrator or his representative for a devastavit, or for delinquencies in office, either at law or in equity ; but the former administrator or his representatives are liable directly to creditors and next of kin. Buall vs. New Mexico, 16 Wal., 535, and cases cited p. 540 of 16 Wal. A legacy was given jointly to several families, whose individual ' members were not ascertained by the will. All the legatees were necessary parties to a bill for payment of the legacy. Perry vs. Belt, 1 Pet., 670-681. On a bill lor payment of a legacy, the answer of the personal representative shewed that another bill had been filed against him by persons claiming as creditors or mortgagees, and a third by per- sons claiming as heirs at law and distributees ; it was held, that the heirs at law and distributees were necessary parties ; and the decree was reversed and the suit remanded to enable the plaintiff to amend. Armstrong vs. Lear, 8 Pet., 51. In Georgia, under its colonial law, the heirs were not necessary parties to a bill to subject the lands of a decedent to his debts. Telfair vs. Stead's ex'ors, 2 Cr., 407. 732 PARTIES In a bill against an executor to obtain an account and payment, of a legacy, it is not necessary to join as ajdefendant a devisee of a tract of land in another jurisdiction. West vs. Smith, 8 How., 402. A creditor, before obtaining judgment, may file a bill against the- administrator and the fraudulent grantee of his deceased debtor to subject property fraudulently conveyed, to the payment of the debt. JBagan vs. Walker, 14 How., 29. To a bill seeking to charge a legacy on land of a married woman, she is a necessary party. Lewis vs. Darling, 16 How., 1. . On a bill by one distributee of an intestate's estate against the administrator, the other distributees are not indispensable parties, Payne vs. Hoolc, 7 Wal. 425 ; the sureties' of the administrator may be united as defendants in the same suit. Ibid. Heirs at law sought to set aside a sale of their ancestor's realty which had been sold at the instance of a creditor; it was held, that the creditor and all the heirs at law were necessary parties. .Sbe- d ah. vs. Wilson, 9 Wal. 501. In Dandridge vs, Chistis, 2 Pet. 377, it was held that in case of a bequest to executors to invest a fund and from the interest pay for the proper education of three nephews, in a suit by one of them against the executors to enforce the execution of the trust, the three should be made parties : but the residuary legatees were not ne- cessary parties. In a bill by an executor against a devisee of lands, charged with the payment of debts, for an account, &c., the creditors are not indispensable parties. Potter vs. Gardner, 12 Wheat. 499. In this case, a purchaser from the devisee was charged with what of the purchasee money he had aided the devisee in misapplying. Ibid. In a suit by a distributee to recover a distributive share, the mere fact that the administrator was ordered to account did not make parties all who were entitled to distribution nor authorize a decree in their favour ; and if such persons do not appear before the master, no decree could be made for or against them because they would not be bound thereby. Hooh vs. Payne, 14 Wal. 252. It is not irregular for two mercantile firms to unite as complain- ants in a creditor's bill, Nelson vs. Hill, 5 How. 127, and in such a bill against a deceased partner's estate, it is proper to join the sur- viving partner and the representative of another deceased partner. Ibid. Parties to a bill charging executors with fraud and seeking to reinstate a mortgage, Bobertson vs. Carson, 19 Wal. 94, cited ante p. 728. Sfte 49th, 50th and 51st rules of Supreme Court, and see Story's PI. § 150, n. 5, and Telfair vs. Stead's ex'ors, 2 Or. 407. 20. In amended and supplemental bills. See Shaw vs. Bill, 5 Otto 14. See pp. 651-663 arde. IN UNITED STATES CIRCUIT COURTS. 733 21. Appeals. One defendant, whose interest is separate from that of the others, may appeal. Forgay vs. Conrad, 6 How. 201. 22. Assignees and assignors. An assignor still retaining an in- terest in the patent, though none in the particular territory, may join as complainant in a bill for an injunction to restrain the viola- tion of the patent in that territory. Woodworth vs. Wilson, 4 How., 712. Assignees in bankruptcy are indispensable parties to a bill against the bankrupt and certain parties to whom he had previously ■conveyed property in trust. Russell vs. Clark's ex'ors, 7 Cranch, 69. If .the plaintiff's equity depend on the invalidity of an assign- ' ment of the equitable title, and the defendant be the sole assignee, his assignor need not be made a party. Boon's heirs vs. Chiles, 8 Pet., 532. The rule laid down in Mitford's Pleading, 179, is repeated, with & caveat, in Story's Eq. Pi., § 153. Judge Story states the true principle to be, that in all cases in which the assignment is absolute and unconditional leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment are not ■doubted or denied, and there is no remaining liability in the assignor to be effected by the decree, it is not necessary to make the latter a party. Story's Eq. PI., § 153. See Batesville Institute vs. Kauffman, 18 Wal., 151. See Story's Eq. PI., § 216a, as to fraudulent assignments, &c. See Fitch vs. Oreigklon, 24 How., 159 ; Gaines vs. Sennen, 24 How., 553. An objection that the asssignor of a patent was improperly joined as coplaintiff with the assignee in the bill was, in lAvingston vs. Woodyoorth, 15 How., 546, taken for the first time on the appeal in the Supreme Court. The court held that the objection came too late. InMtch vs. Oreighlon, 2A: How., 159, the case was this: Th? statutes of Ohio gave to the local authorities of cities, &c., power to make various improvements in streets and to assess the propor- tionate expense thereof upon the lots fronting thereon, which was declared to be a lien upon the property. The City Council of Toledo directed certain improvements to be made, and contracted with two persons (one of whom purchased the right of the other) to do the work, and authorized them to collect the amounts due upon the assessments; the contractor who did the work sued in the TJnited States Court. His suit was maintained, and it was held not necessary to make the contractor who had sold out, a party. The court also held, that the bill was not multifarious, because it " claimed to enforce the liens upon several lots. 23. Banking •associations and corporations. If the members of an unincorporated banking company are numerous and in part un- known, it is not necessary to bring all the stockholders before the 734 PARTIES court before a decree can be made ; but where such stockholders die after having been regularly served with process, their rep- resentatives should be made parties unless some good reason, such as absolute insolvency, should justify their omission. In such a case, it is error to dismiss the bill as to stockholders named in the bill but not served with process ; proceedings, in case of their being non-residents, may be had against them by publication under the act of Congress of 1803. Mandevill-e vs. Biggs, 2 Pet., 482. To a bill by the creditors of a corporation against its stockhold- ers to compel payment of the arrears of their subscriptions, all the stockholders need not be made parties. Ogilvie vs. Knox. Ins. Co., 22 How., 380. If necessary the court may, at the suggestion of either party that the corporation is insolvent, administer its assets by a receiver, and thus collect all the subscriptions or debts to the corporation. Ibid. See Sawyer vs. Soag, 17 Wal. 610. In Railroad Oo. vs. Soward 7 Wal., 392, it was held that a sale by a railroad company, not authorized in its corporate capacity to- make it, may be yet validly carried into effect by the consent of all parties interested in the subject matter of it ; and that stockholders in a corporation need not be individually made parties in a credi- tors' suit, where their interest is fully represented both by the railroad company and by a committee chosen and appointed by them. A railroad corporation by mortgage, whose sufficiency to secure what it was given to secure was doubtful, mortgaged all its pro- perty directly to its bondholders to secure specifically to each the amount due him. Meld, that no one even when professing to act in behalf of all who might come in and contribute to the expenses of the suit could proceed alone against the company and ask a sale of the property mortgaged. The other bondholders should be parties. The adequacy of the security being doubtful, each should be present to defend his own, and, if necessary, attack the claims of others. If successful in the latter, his own security is enhanced. All interested having notice could endeavor to have as advantageous a sale as possible. Even in equity, a suit on a written instrument must be brought in the name of all who are formal parties to it and retain an interest in it. Kl R'd Go. vs. Orr, 18 Wal., 471. In T^ry vs. Gom. B'h Alex., 2 Otto, 454, a suit to wind up an insolvent bank, the stockholders were not parties nor served with process, it was held that so much of a final decree as discharged them from all liability for any debt against the bank was erroneous. In a suit against a national bank under the National Bank Act of June 3, 1864, sec. 50, it is no objection to the bill properly filed againat the stockholders within the jurisdiction of the court, that the stockholders named in the bill and averred in it to be without the jurisdiction, are not made co-defendants. Kennedy vs. Oibson & ah, 8 Wal., 498. IN UNITED STATES CIRCUIT COURTS. 735 A stockholder has his remedy in chancery against the directors ' to prevent them from doing acts which would amount to a violation of the charter, as to prevent any misapplication of their capital or profits which might lessen the value of the shares, if the acts intended to be done amount to what is called in law a breach of trust or duty; Dodge ■vs. Woolsey, 18 How., 331, but ther^.must be a clear default on their part involving a breach of duty within the rule established in equity. Memphis Qity vs. Dean, 8 Wal., 73. " A stockholder also has a remedy against individuals, in whatever character they profess to act, if the subject of complaint is an im- puted violation of a corporate franchise or the denial of a right growing out of it. Dodge vs. Woolsey, 18 How. 331. Although a stockholder in a corporation may bring a suit when the corporation refuses, yet as in such case the suit can be main- tained only on the ground that the rights of the corporation are involved, the corporation should be made a party to the suit and a demurrer will lie if it is not so made. Davenport vs. Dows, 18 Wal., 626.- See 0. Eule of practice (called Eq. Rule 94) p. 726, ante. 24. Banhrupts. Assignees in bankruptcy are indispensable parties to a bill against the bankrupt and certain persons to whom he conveyed property in trust before he was decreed a bankrupt. JRussell vs. Olarhes exors, 7 Cranch 69. > The proceeds of the sale of a bankrupt's goods being in the hands of One sued as a defendant by a judgment creditor of the bankrupt, another person who had a like judgment and levied on the same goods is not a necessary party, he being without the juris- diction. Traders Banlc vs. Campbell, 14 Wal. 87. When the assignee in bankruptcy of a mortgagor is appointed during the pendency of proceedings for the foreclosure and sale of mortgaged premises, he stands as' any other purchaser would stand- on whom the title had fallen after the commencement of the suit; if there be any reason for interposing, the assignee should have himself substituted for the bankrupt, or be made a defendant on petition. Eyrster vs. Oraff <& als., 1 Otto 521. 25. Olaimants under the same title. If both the plaintiff and the defendant in a bill to. obtain the legal title claim under and assert the validity of a copveyance, it is not necessary to make the parties to that conveyance parties to the bill. Boon's heirs vs. Chiles, 8 Pet., 532. 26. Qities, towns, <&c. Though the courts of the United States will not entertain a suit brought against a State by an alien, or the citizen of another State, yet they may, in equity, restrain by injunction a public officer of the State from acting under a void law of the State to destroy a franchise ; and as the State cannot be joined as a defendant, its agent may be sued alone; the prohibi- tion to sue a State does not extend to cases in which a State is not 736 PARTIES a party on the record, even if the State has the entire ultimate in- terest in the subject of the suit. Osborn vs. B'k U. 8., 9 Wheat., 788 27. Oorporaiions. See Banking associations, and corporations, ante, p. 733. 28 Creditors' bills. See Judgments, p. 738, post. See Railroad Co. vs. Orr, 18 Wal., 471, referred to under title ' Banking Associations, p. 734, post. 29. 3ebts to debtor. A bill was filed by the United States in the U. S. Circuit Court for the district of Massachusetts, to recover of Howland and Allen a sum of money in their hands alleged to be the money of Shoemaker and Travers, merchants who were stated to be insolvents and to be indebted to the United States. Shoemaker and Travers had made a trust deed assigning all their estate in trust to secure certain enumerated creditors, and first the United States. Seld, that the United States Court sitting as a court of equity had jurisdiction, and that though there was an act of the Massachusetts Legislature allowing a creditor to sue the debtor of his debtor at law, yet that act did not affect the j uris- diotion in equity. U. S. vs. Holland, 4 Wheat. 108. Ordinarily, a debtor to the estate is not a proper party to a suit brought by a creditor against a personal representative for pay- ment of his debt out of the assets ; because the liability of the debtor is solely to the personal representative ; but if a special case is made out, such as collusion between him and the personal repre- sentative, or as the insolvency of the personal representatives, the debtor may be made a party as a means of uprooting the fraud or of securing the property. See Story's Eq, PI. § 227. See Rhodes vs. Warburion, 6 Sim. 617 ; Calvert on Parties, 25. It seems that a cestui que trust, or other principal, would not be justified in filing a joint bill for an account against the trustee, and an individual or sub-agent employed by him in the execution of the trust, who had received money belonging to the cestui que trust, and dealt with it according to the direction of the trustee. Loch- wood vs, Abdy, 14 Sim, 437. 30. Disability of parties. See O Sara c& als. vs. McGormell, 3 Otto 152 cited sec. 47, p. 740. 31. Discovery. After discovery had, a suit for discovery merely cannot be revived. Horsburg vs. Baker, 1 Pet. 232. 32. Disposition of a fund. See " Administration of estates and disposition of assets," p. 731, ante. In Williams d als. vs. Banhhead, 19 Wal. 563, it was held that where a proceeding in equity concerned the disposal of a specific fund, a person claiming the fund and liable by a decree to have it wholly swept from him was an indispensable party. 33. Foreclosure. See Mortgages. 34. Fraud. To a suit by some of the heirs of a decedent to set IN UNITED STATES CIRCUIT COURTS. 737 laside a deed procured from the ancestor by fraud, it was held that all the heirs should be made parties before a sale was ordered to satisfy what was justiy due. Harding vs. Handy, 11 Wheat, 103. It was a case, however, in which the court might have proceeded if all the heirs could not have been made defendants by the service of process. The undivided interest of those who appeared might be -sold and the lien of the defendant permitted to remain on the parts unsold, to secure the payment of so much of the money due to the ■defendant, as those parts, might be justly chargeable with. IL Wheat, 133. Where a decree set aside certain conveyances as fraudulent as against creditors, but expressly exempted a certain mortgage from the eflfect of the decree, it was held that the mortgagee was not a necessary party to the bill. Venable vs. Bank U. States, 2 Pet., 107. A fraudulent auctioneer, who, without the knowledge of the ■owner, had, by fictitious bids, obtained $40,000 for property sold at public auction, when $20,000 was the highest real bid, was held not to be a necessary party to a suit by the purchaser against the owner to recover the excess of $20,000 he had paid. Veazie vs. Williams, <£c., 8 How., 134. On a bill to set aside a fraudulent conveyance, the alleged fraud- ulent grantor is a necessary party. Oaylords vs Kelshaw, 1 Wal., SI. • Where a bill was filed by a third party to set aside, as fraudu- lent, completed judicial proceedings, regular on their face, the plaintiflf in those proceedings should be brought in as a party. Harwood vs. B. E. Co., 17 Wal., 78. See 19 Wal., 94, and Administration of Estates, <&c. 36. Husband and wife. To a bill to charge a legacy on the land of a feme covert, she is a necessary party. Lewis vs. Darling, 16 How., 1. The husband may join his wife as a complainant in a suit in which he has no interest; in such case he is considered as merely the next friend of the wife. Bein vs. Heath, 6 How., 228. A married woman may sue her husband, in equity, by her next friend. Barber vs. Barber, 21 How., 582. •A married woman may sue, by her next friend, to recover a legacy bequeathed to her, where the husband has transferred all his marital rights in the legacy to his wife. Oallego vs. Oallego, 2 Brock., 285. 37. Injunctions. See Dodge vs. Woohey, 18 How., 331, cited, p. 735, ante, and Judgments, post, p. 738. 38. Insolvents. See Bankrupts. There was a bill by the heirs of an insolvent to set aside on the ground of irregularity a sale of mortgaged property in Louisi- ana. The mortgagees had been paid their share of the purchase 93 738 PAETIES money and had an interest in upholding the sale. It was held that the mortgagfies were necessary parties, Ooiron (& ah. vs. Mil- laudon (& als., 19 How. 113 ; and the fact that they were beyond the jurisdiction of the court was not a sufficient reason for not making them parties. 39. Insurance. Several persons underwriters, who have claims to a return of moneys by them actually paid on account of a loss, cannot unite in one bill. Yeaton vs. Lenox, 8 Pet. 123. See contra, Story's Eq. PI. § 537 ; see also Story's Eq. PL §§ 161, 286a, 286fr and notes. 40. Joint interests and obligations. See Payne vs. Soolc, 7 Wal. 425, cited sec. 7, p. 728. 41. Judgments. See Creditors, p. 736, ante, and Specific Per- formance. To a bill by purchasers from a judgment debtor to set aside the legal title of a purchaser at sheriff's sale, on the ground that the judgment was satisfied before the levy, both the judgment debtor and creditor are necessary parties. Field vs. Solland, 6 Gran. 24. A judgment at law cannot be enjoined without making the judg- ment creditor a party ; it is not enough that the defendant admit himself to be the owner of it, for such admission may be collusive. Marshall vs. Beverley, 5 Wheat. 313. A bill to enjoin a judgment at law is not considered as an origi- nal bill, and therefore the introduction of parties who would other- wise be necessary may- be dispensed with if the jurisdiction might be thereby affected ; and the court will decree as to parties pro- perly before it, leaving the rights of others unaffected. Sim.ons vs. Guthrie, 9 Cranch 19 ; Mallow ys. Hinde, 12 Wheat. 194. See Dunn vs. Clarke, 8 Pet. 1. To a bill to enjoin a judgment by an endorsee against the en- dorser of a bill of exchange, on the ground that it had been paid by the drawer, before the judgment, without the complainant's knowledge, the drawer is not a necessary party. Atkins vs. Dick, 14 Pet. 14. . Different judgment creditors may unite in one bill for discovery and account, the object being to set aside impediments to their remedies at law, created by the fraud* of their common debtor. De Wol/vB. Johnson, 10 Wheat, 867. 42. Lost deeds. See Findlay vs. Sinde, 1 Pet. 241. 43.' Mortgages. To a bill of foreclosure a prior encumbrancer should be made a party, but if not joined and a decree of sale be executed before the existence of a prior encumbrance becomes known to the court, it is not error to refuse to vacate the decree j the prior encumbrance is not affected by such sale. Finley vs. Bank U. States, 11 Wheat, 304. Whenever the first mortgagee is not subject to the jurisdiction .of the court and cannot be joined without defeating the jurisdiction. IN UNITED STATES CIRCUIT COUETS. 739- and the validity of his incumbrance is not disputed, he need not be a party to a bill by a second mortgagee. Sagan vs. Walher, 14 How., 37. Subsequent lien creditors are not necessary parties to a bill of foreclosure. Brewster vs. Wakefield, 22 How.-, 118. When a sale of mortgaged property was made under proceedings in insolvency, and the heirs of the insolvent filed a bill to set aside the sale for irregularity, the mortgagors, who had received their share of the purchase money, were held to be necessary parties. Chiron vs. MiUaudon, 19 How., 113. When mortgaged real property is conveyed to a trustee, for the benefit of children in being and to be born, the children in esse at the time of the filing of the bill of foreclosure should be made parties; if they are not, they do not lose their right, to redeem by the decree of foreclosure. Clark vs. lieyburn, 8 Wal., 318. When there were several successive mortgages on a railroad, it was held that the suit might be maintained by one suing on behalf of all the holders under the several mortgages. Oalveston JR. R, vs. Qowdry, 11 Wal., 478. When suit is for the purpose of foreclosing a mortgage on part of a railroad, parties to a mortgage on another part are not necessary parties. Branson vs. Railroad Go'., 2 Bl., 524. A majority of the stockholders and creditors of a railroad com- pany which had several mortgages on the road agreed to sell for a price ofiered, and to divide the proceeds among all the stockholders and creditors in a way settled on by those agreeing to the plan. Other stockholders and creditors refusing to agree, in order to geti around their opposition, a sale Was efiected through the action of the majority by an amicable foreclosure of mortgage, the trustees in one of the mortgages being complainants, and those in the other mortgages, with the corporation whose road was intended to be sold, the defendants. The dissatisfied stockholders and bondholders then filed a bill against the purchaser, and the railroad corporation whose road had been sold, bid not making any of the trustees or any- of the consenting stockholders parties, charging collusion in this sale, and praying that it might be set aside, a resale made, and the money arising from the sale be applied primarily to their benefit. ■ Seld, that the bill was fatally defective for want of proper parties. Robin vs. R. R. Oompanies, 16 Wal. 446. 44. Nuisances. A public nuisance may be abated on a bill in equity, brought by a private party who has suffered special dam- age ; and it is necessary for the plaintiff in such a bill to show that he has sustained and is still sustaining individual injury by the nuisance. Miss, d Misso. R. R. Go. vs. Ward, 2 Black 484.' If ' It is not necessary in snch case to show that the plaintiff's damage amounts to the sum required to give the United States Court jurisdiction : The jurisdic* 740 PARTIES the private party has partners in the particular business affected by the nuisance he need not join them as plaintiffs, any more than he need join other persons who have suffered similar injuries. Ibid. 45. Partition suits. Part owners or tenants in common in real estate of which partition is asked in equity have an interest in the subject matter of the suit and in the relief sought, so intimately connected with that of their cotenants, that if these cannot be sub- jected to the jurisdiction of the court, the bill will be dismissed. Barney vs. Baltimore (My, 6 Wal., 280. See Coy vs. Mason, 17 How., 580, and Thompson vs. Tolmie, 2 Pet., 157. 46. Partnership. See Nelson vs. Hill, 5 How., 127, cited, artte, p. 732 ; Banh vs. Carrolton E. Rood, 11 Wal., 624. See " Joint interests and obligations." Where a complainant sued as an administrator of a deceased partner, praying an account of the partnership concerns, alleges in his bill that he is the sole heir of the deceased partner, the fact that he is not so, does not make the bill abate for want of necessary parties, since a decree in his favour as administrator would not in- terfere with the rights of others who might claim a distribution after the complainant received the money decreed to him. Moore vs. Huntington, 17 Wal., 417. See Story's Eq. PL,' §§ 78, 167, 178, 667-669, 673. Where the surviving partner of an insolvent firm assigned cer- tain lots of ground belonging to the firm for the benefit of its cred- itors, the heirs of the deceased partner cannot be made parties to a suit involving the title to the lots, on the ground of any relation of trust or confidence subsisting between them and the assignee. Rothwell vs. Dewees, 2 Black., 613. 47. Purchaser. A married woman as trustee conveyed without her husband joining in the deed; a suit was brought against her heirs to quiet the title. It was held that the cestui que trust was not a necessary party. Oridley vs. Winant, 23 How., 500. When the object is to divest &feme covert jov minor of an interest in real estate, the title to which is in a trustee for her use, the trust being an active one, it is error to decree against her without making the trustee a party to the suit. O Hara <& ah vs. McQonnell c& uls, 3 Otto, 150. 48. Purchaser pendente lite. A court of equity is not bound to take ' notice of an interest voluntarily acquired in the subject matter of the suit pendente lite. Meeh. B'k Alex. vs. 8eton, 1 Pet., 299; Story's Eq. PI. §§ 156, 351. When the assignment is by operation of law, the rule is different. Ibid, § 158a. Lowry vs. Morrison, 11 Paige, 827. tion is tested by the value of the object to be gained by the bill, and that object is the removal of the nuisance. Miss. & Mism. M. JR. Co. vs. Ward, 2 Black, 484. IN UNITED STATES CIECUIT COURTS. 741 49. Petitions for rehearing, bills of review, <£o. See §§ 622-628, 637-638. ante. See Thomas vs. JSarvie, 10 Wheat., 146, Whiting' vs. Bk US, 13 Pet., 6. 50. Religious associations. A portion of the members of a vol- untary religious association may sue in behalf of themselves and others having the like interests as part of the same society for purposes common to all and beneficial to all. Beatty vs. Kintz, 2 Pet., 5b6 ; Smith vs. Swornsiedt 16 How., 288. 50a. Specific perform,ance. In a suit by the vendees for specific performance or indemnification, all the co-heirs of' the deceased vendor must be made parties. Morgan's heirs vs. Morgan, 2 Wheat, 290. To a bill for specific performance, the vendor is a necessary party, though he has conveyed all his title to the other defendants. Mndlay vs. Hinde, 1 Pet., 241. Whether a sub-purchaser of part of the land from the vendee be a necessary party or not to a suit against the vendor for specific performance, his joinder, under circumstances, which had no prac- tical effect on the vendor's rights, cannot be objected to by him. Taylor vs. Longworth, 14 Pet., 172. See Story's Eq. PL, § 351a. To a bill by purchasers from a judgment debtor in which they sought to set aside the legal title of a purchaser at a sheriff's sale on the ground that the judgment was satisfied before the levy, both the judgment debtor and creditor are necessary parties. Field vs. Solland, 6 Oranch, 24. In general, the original parties to the contract are the proper parties to a suit to compel the specific performance ; and the iacfc that the complainant has made an assignment of a partial interest in the contract (although before filing his bill) to a person 'who does not join in the suit, is no defence to the bill. Willard vs. Tay- loe, 8 Wal. 557. ' Mr. Justice Field said in this case ; " Except in the case of an assignment of the entire contract there must be some special circumstances to authorize a departure from the rule" [that the parties to the original contract are the only proper parties to the suit for specific performance]. Ibid. Creditors of the vendor who recovered judgments and sold the property, pending a suit for specific performance in which the pur- chase money had been paid into court, are not necessary parties to the suit, nor are the purchasers at the sheriff's sale under such judgments. Secombe (& als vs. Stute, 20 How 94. Parties to a suit to compel specific performance of a contract for the exchange of lands lying in different States In a suit demand- ing the specific performance of a contract, by conveying lands in the State of Ohio, stipulated to be conveyed as the consideration for other lands sold in the State of Kentucky, or, in lieu thereof, requiring indemnification by 'the payment of money ; it was held that all the co-heirs of the vendor, deceased, ought to be made parties 742 PARTIES. to the bill, and that the death of one of the heirs ought to be proved, in order to excuse his omission as a party to the bill. Mor- gan's heirs vs. Morgan <£ als., 2 Wh. 290. 51. Sureties. Where money was borrowed from a bank upon a promissory note signed by the principal and two sureties, and the principal debtor, by way of counter security, conveyed certain property to a trustee, for the purpose of indemnifying his sureties, it was necessary to make the trustee and the cestui que trust parties to a bill filed by the bank, asserting a special lien iipon the property thus conveyed. McBea <& als. vs. Branch B'k Ala., 19 How., 376. 52. Trusts. The general rule is, that in suits respecting trust property, brought either by or against the trustees, the cestuis que trust, as well as the trustees, are necessary parties. 8wayne, J., in Carey <& als. vs. Brown, 2 Otto., 172. • When land is conveyed in trust to secure a debt, the trustee and grantor are necessary parties to enforce the trust,. but they are not necessary parties to set aside a frg,udulent conyeyance by the debtor; in such case, a bill against his administrators may be sustained to bring such property into a course of administration. McRea vs. Branch Bh Alex., 19 How.. 376. When a suit is brought by a trustee to recover the trust pro- perty or reduce it to possession and in no wise affects his relations with his cestuis que trust, it is unnecessary to make cestuis qvs trust parties. Carey d als vs. Brown, 2 Otto, 171 ; see Story vs. Liv- ingston, 13 Pet., 359. In suit against a trustee invested with such powers and sub- jected to such obligations that his beneficiaries are bound by what is done against him or by him, the beneficiaries are not necessary parties. Kerrison vs. Stewart <£ als, 3 Otto, 155. In a bill to divest a, feme covert or minor of an interest in real estate, the title to which is in a trustee for her use, the trust being an active one, her trustee is a necessary party. O Sara (& als vs. McConnell d als, 3 Otto, 150. To a suit to enforce the trusts of a will the residuary legatees are not generally necessary parties ; their interests are represented by the executors. Danridge vs. Oustis, 2 Pet., 370. See Mophirh vs. Pa^-e, 2.Brock., 20. A surviving trustee, under a decree of a court of equity, recon- veyed the trust property to the heirs of the grantor and died ; his representatives were held to be not necessary parties to a suit to enforce a claim upon the trust estate. McCail vs. Harrison, 1 Brock., 126. ■ To a bill by a bona fide purchaser from a trustee, who being a feme covert ha'd conveyed without her husband joining in the deed, against her heirs to quiet the title, the cestui que trust is not a necessary party. Oridley vs. Winant, 23 How., 500. FOEMS OF RECORD. 743 See 49tli. 50tli and 51st Rules Sup. Ct., Story's Eq. PI., § 150, 11,5. 53. Vendor's lien. If the purchaser from a vendee be dead, leaving a widow his executrix, and heirs at law to whom with her its real estate has descended, the heirs ought 'to be made parties de- iendant to any bill to foreclose. Lewis vs. Sawkins, 13 Wal,, 119. III. Complete Form of Becotrd a^ made by clerk for appeal to an appellate court. Virginia: Pleas before the honorable W. S. B., judge of the Circuit Court •of the County of Hanover, on the day of . ' Be it remembered that heretofore, to-wit : At a Circuit Court of the county of Hanover, held at Hanover Court-house on the day of . (Here the clerk copies the first entry found on page 550, ante.) Which bill and answers are in the words and figures following, to-wit : (Here the clerk copies the bill and answers on pages 548-550, ante.) And afterwards, to-wit; on the day of , 18 — , the commissioner, Alexander Stuart, filed his report, which report, togethe'-, with the depositions and papers therewith returned, is in the words and figures following, to-wit: ■(Here the clerk copies the notice, commissioner's report and depositions found on pp. 551-553, ante.) And at another day, to-wit: At a Circuit Court of the county of Hanover, held at Hanover Court-house on the day of , 18 — . (Here the clerk copies the decree on p. 554.) And afterwards, to wit: On the — r- day of , 18 — , the commissiouer, William W., returned and filed his report of sale and other papers, which re- port and the papers therewith returned are in the words and figures follow- ing, to-wit: (Here the clerk co.pies the report of sale and accompanying papers— pp. 555-557, ante.) And at another day, to-wit : At a Circuit Court of the county of Hanover, held at Hanover -Court-house on the day of , 18 — . (Here the clerk ■copies the decree on pp. 557-558, ante.) And at another day, to wit; At a Circuit Court of the county of Hanover, held at Hanover Court-house on the day of , 18 — . (Here the clerk copies the entry beginning on p. 558.) And at another day, to-wit : At a Circuit Court of the county of Han- over, held at Hanover Court-house on the day of , 18 — . (Here the clerk copies the entry " taking time to consider" on page 559 ) , The following are copies of the return, answer, affidavits and exceptions re- ferred to in the foregoing order: (Here the clerk copies these papers as found on pp. 562-563 and 564, ante ) And now at this day, to wit : At a Circuit Court of the county of Hmover, held at Hanover Court-house on the day of , 18 — . (Here the clerk copies the decree on pp. 559-562, ante.) ■ ^ A true transcript of the record. Teste: J. A. B. aerk. 744 FOEMS OF RECORD. S'orm of liecord, in which Suit Matured by service of Summons, filing Answers- at -liulee, &c. Virginia: Pleas before the honorable W. S. B., Judge of the Circuit Court of the county of Hanover, on the day of , 18 — . Be it remembered that heretofore, to wit : on the day of , 18 — ,. came J. E. B, and sued out of the clerk's ofiSce his writ of summons in equity against L. L. and others, which writ with the retui-us of service thereon is ia the words and figures following, to wit : [here , the clerk copies writ and returns ] And afterwards, to wit: At rules held in the clerk's ofiice of the said court for the month of in the year 18 — , came the plaintiff and filed his bill which bill and exhibits therewith filed are in the words and figures follow- ing, to wit : [here the clerk copies the bill and exiiibits ] And at the same rules, to wit : L. L appeared and filed his answer to the said bill and the plaintiff replied generally to the said answer, and the cause is set for hearing as to the said L. L. on his said answer and replicaiion. The said answer and exhibits therewith filed are in tbe words and figures JoDow- ing, to wit: [here the clerk copies the answers and exhibits.] And at the same rules, to wit: At rules held in the clerk s office of the said court for the month of , 18 — , on motion gf tbe plaintiff D. X., th& clerk of this court is assigned guardian ad literri to the infant defendant O. P. to defend his interests in this suit, and thereupon the said guardian ad litem filed his own answer and the answer of tbe inlant defendant 0. P by himself as guardian ad litem, and the plaintiff replied generally to the satiie, and on his motion the cause was set for hearing on the said answer and rejjlication as to the said infant defendant. And at the same rules, to wit : -At rules held in tbe clerk's nffice of th& said court for the month of , 18 — , the writ of summons ispued in this cause having been duly served on the defendant, Catharine D., and the bill of tbe plaintiff having been filed, and the said C. D. still failing, Ac, (as on p. 128, ante.) And afterwards, to-wit: At rules held in the clerk's office of the said court for the month of , 18 — , the defendant, Caiharine D., not yet having ap- peared and pleaded, answered or demurred to the plaintiff's bill, the same i» taken for confessed as to the said defendant, and the cause is set for hearing as to her. And afterwards, to-wit: On the day of , 18 — , the following depo- sitions were filed: [Here the clerk copies the depositioos ] And at ar other day, to wit; At a Ci cuit Court ot the county of H>inover^ held at Hanover Courthouse on the day of . (Namef oi parties.) This cause came on this day to be heard on the bili taken for confessed as to the defendant Catharine D., and set for bearins; as to her on sach confession, on the answer of the defendant L. L. and on the answer of the infant defen- dant by D. X , his guardian ad litem, and the answer of the said t>uardian ad litem, and replica ions to said several answers, and on the exhibits and examinations ot witnesses, and was argued by counsel : On consideration whereof, &c., &c (Here follows the order or decree entered). [The subsequent proceedings may be recited as in previous form of 'record, p. 743, ante, to the last decree appealed from.] A true transcript of the record. Teste : B. H. B., Clerk. AMENDMENTS TO CODE 1873. 745 AmendmeiiU to Gode of 1875, m(ide in subsequent Session Acts, affecting Equity practice in the Virginia State Courts. Code 1873, chap. 12, sec. 6, amended by Sess. Acts 1874-5, p. 53. Code 1873, chap. 76, sec. 13, amended by Sess. Acts 1878-9, pp. 161, 347-8. Code 1873, chap. 105, sec. 1, amended by Sess. Acts 1878-9, p. 207. Code 1873, chap, 112, sec. 6, amended by Sess. Acts 1876-7, p, 213. See Sess. Acts 1877-8, p. 239. Code 1873, chap. 114, sec. 5, amended by Sess. Acts 1876-7, pp. 34, 35, 357. Code 1873, chap. 115, sec. 4, amended last by Sess. Acts 1879-80, p. 38. Code 1873, chap. 115, sec. 5, amended last by Sess. Acts 1874-5, p. 437. Code 1873, chap. 115, sec. 13, amended by Sess. Acts 1878-9, p. 178. Code 1873, chap. 118, sec. 37, amended by Sess. Acts 1875-6. p. 109. Code 1873, chap. 122, sec. 8, amended by Sess. Acts 1875-6, p. 267. Code 1873, chap. 123, sec. 6, amended by Sess. Acts 1875-6, p. 211. Code 1873, cljap. 123, sec. 7, see in connection Sess. Acts 1877-8, pp. 247,. 248. Code 1873, chap. 123, sec. 13, amended by Sess. Acts 1874, p. 133. See also p. 224. Code 1873,- chap. 155, sec. 6, amended by Sess. Acts 1874, p. 224. Code 1873, chap. 126, sec. 25, amended by Sess. Acts 1879-80, pp. 146-147. Code 1873, chap. 128, sees. 11, 12, amended last by Sess. Acts 1877-8, pp. 67, 68. Code 1873, chap. 128, sec. 16, amended last by Sess. Acts 1875-6, p. 53. Code 1873, chap. 128, sec. 18, amended by Sess. Acts 1877-8, p. 157. Code 1873, chap. 137, sees. '4, 5, 6, 7, 8, amended by Sess. Acts 1874, pp.. 134, 135. Code 1873, chap. 137, sec. 10, repealed by Sess. Acts 1874, p. 135. Code 1873, chap._141, sec. 5, amended last by Sess. Acts 1876-7, p. 28. Code 1873, chap.' 141, sees. 7, 8, amended by Sess. Acts 1878-9, pp.379,. 380. Code 1873, chap. 141, sec. 11, amended by Sess. Acts, 1875-6, p. 263. Code 1873, chap. 143, amended and re-enacted by Sess. Acts 1877-8, pp,. 218-220. Code 1873, chap. 146, sec. 9, amended by Sess. Acts 1877-8, p. 221. Code 1873, chap. 146, sec. 20, amended by Sess. Acts, 1874, p. 69. Code 1873, chap. 148, sec. 5, amended last by Sess. Acts 1877-8, p. 217. Code 1873, chap. 149, sec. 7, amended by Sess. Acts 1877-8, pp. 185, 186. 94 746 AMENDMENTS TO CODE 1873. Code 1873, chap. 155, sec. 14, amended by Seas. Acts 1874^-5, p. 12. Code 1873, chap. 155, sec. 15, repealed by Sees. Acts 1874, p. 151. Code 1873, ehap. 155, sec. 21, amended by Seas. Acts 1874-5, pp. 8, 9. Code 1873, chap. 157, see. 20, added by Sesa. Acts 1874-5, pp. 19, 20. Code 1873, chap. 157, sec. 21, added by Sess. Acts 1874, p. 17. Code 1873, chap. 166, aec. 10, amended by Sess. Acts 1876-7, p. 274. Code 1873, chap 167, sec. 33, amended by Sess. Acts 1875-6, p. 209. Code 1873, chap. 169, sec. 2, amended by Sesa. Acts 1875-6, p. 11. Code 1873, chap. 170, sees. 1, 2, amended last by Sess. Acta 1878-9, p. 24. Code 1873, chap. 171, sec. 2, amended last by Sess. Acts 1878-9, p. 21. Code 1873, chap. 172, sec. 5, amended by Sess. Acts 1879-80, p. 185. Code 1873, chap. 172, sec. 21. See Sess. Acts 1876-7, p. 265. Code 1873, chap. 172, sec. 22, amended by Sess. Acts 1876-7, pp. 265-6-, 184r-5. Code 1873, chap. 172, sec. 36; amended by Sess. Acts 1874^5, p. 139. " Code 1873, chap. 174, sec. 8, amended by Sess. Acts 1874-5, p. 423. Code 1873, chap. 175, sec. 1, amended by Sesa. Acta 1877-8, p. 247. Code 1873, chap. 175, aec. 10, amended by Seaa. Acta 1874-5, p. 33. Code 1873. chap. 178, aec. 1, amended by Sess. Acts 1878-9, p. 381-2. Code 1873, chap. 178, sec. 6, amended by Sess. Acts 1876-7, pp 70-71. Code 1873, chap. 178, sec. 17, amended by. Sess. Acts 1876-7, pp. 30-31. Code 1873, chap. 182, sec. 4, amended last bySess. Acts 187,7-8, pp. 92-94. Code 1873, chap. 182, sec. 9, amended by Sess. Acts 1877-8, pp. 68-69. Code 1873, chap. 185, sec. 1, amended by Sess. Acts 1877-8, pp. 211-212. Here follow these amendments, arranged alphabetically, according to the subjects of the statutes : APPEALS, when granted. Code 1873, chap. 178, sec. 1, amended by Sess. Acts 1878-9, pp. 381, 382. , record exhibited with petition of. Code 1873, chap. 178, sec. 6, amended by Sess. Acts 1876-7, pp. 70-1. , limitation of. Code 1873, chap. 178, aec. 17, amended by Seas. Acts 1876-7, pp. 30-31. APPBENTICES, with form of indenture. Code 1873, chap. 122, sec. 8, amended by Sess. Acts 1875-6, p. 267. ATTACHMENTS against veaaels. Code 1873, chap. 148, aec. 5, amended by Sess. Acts 1877-8, p. 217. BENEVOLENT ASSOCIATIONS, sale of property, &c.. Code 1873, chap. 76, sec. 13, amended by Sess. Acts 1878-9, pp. 161, 347-8. BILLS AND NOTES, Code 1873, chap. 141, aec. 5, amended by Sess. Acts 1876-7, p. 28. , Code 1873, chap. 141, sections 7, 8, amended by Seas. Acta 1878-9, pp. 379, 380. , Code 1873, chap. 141, sec. 11, amended by Seaa. Acts 1875-6, p. 263. BONDS, taken by courts. Code 1873, chap. 12, sec. 6, amended by Sess. Acts 1874-5, p. 53. , Forthcoming, Code 1873, chap. 185, sec. 1, amended by Sess. Acts 1877-8, pp. 211, 212. AMENDMENTS TO CODE 1873. 747 , Suspending, forthcoming, &c.. Code 1873, chap. 149, sec. V, amended by Seas. Acts. 1877-8, pp. 185, 186. 1 Limitations to honds of Mduciaries, Code 1873, chap. 146, sec. 9, amended by Seas. Acta 1877-8, p. 221. , Mdudary, Code 1873, chap. 128, sec. 18, amended by Seas. Acts 1877-8, p. 157. , Injunction, Code 1873, chap. 175, sec. 10, amended by Seas. Acta 1874-5, p. 33. •CHANCERY COURT OF RICHMOND, jurisdiction over Guardians and Wards, Code 1873, chap. 123, sec. 13, amended by Seaa. Acts 1874, t). 133 See Seas Acts 1874 p. 224 •COMMISSIONERS, appointm.ent of, Code 1873, chap. 171, sec. 2, amended by Seaa. Acta 1878-9, p. 21. COPIES as evidence. Code 1873, chap. 172, aeo. 5, amended by Sess. Acts 1879-80, p. 185. CURATOR. Code 1873, chap. 123, -sec. 6, amended by Seaa. ^.cts 1875-6, p. 211. DEATH OR CHANGE OP PARTIES. Code 1873, chap. 169, aeo. 2, amended by Seaa. Acts 1875-6, p. 11. DEED h/ poor debtors. Code 1873, chap. 112, sec. 6, amended by Sess. Aetfi 1876-7, p. 213. See Seaa. Acts 1877-8, p. 239. , recording of. Code 1873, chap. 114, aec. 5, amended by Sess. Acts 1876-7, pp. 34, 35, 357. DEMURRER, Code 1873, chap. 167, sec. 33, amended by Seas. Acts 1875-6, p. 209. DEPOSITIONS, See notice for taking deposition. DIVORCE, Code 1873, chap. 105, sec. 1, amended by Sess. Acta 1878-9, p. 207. EVIDENCE, Copies of records and papers as. Code 1873, chap. 172, sec. 5, amended by Sess. Acta 1879r80, p. 185. , Competency of Witnesses. See Witnesses. MDUCIARIES, accounts of, Code 1873, chap. 128, aec. 16, amended last, by Sesa. Acts 1875-6, p. 53. , accounts of, Code 1873, chap. 128, sees. 11, 12, amended last, by Seas. Acts 1877-8, pp. 67, 68. , bonda of, Code 1873, chap. 128, sec. 18, amended last, by Sesa. Acta 1877-8, p 157. ■ — , limitations, bonda. of, Code 1873, chap. 146, aec. 9, amended by Sess. Acts 1877-8, p. 221. FORTHCOMING BOND. See Bonds. <3-UARDIAN AND -WARD, Code 1873, chap. 123, aec. 6, amended by Seaa. Acta 1875-6, p. 211. , infant female marrying. Code 1873, chap. 123, aec. 7. See in connec- tion Seas. Acts 1877-8, pp., 247, 248. , Richmond Chancery Court jurisdiction, Code 1873, chap. 123, aec. 1-3, amended by Sesa. Acts 1874, p. 133. See Seas. Acts 1874, p. 224. INJUNCTION, when awarded. Code 1873, chap. 175, sec. 1, amended by Sess. Acta 1877-8, p. 247. , bond. Code 1873, chap. 175, aec. 10, amended by Seas. Acta 1874-5, p. 33. JUDGMENT LIENS, docJcied Code 1873, chap. 182, sec. 4, amended last by Sess. Acta 1877-8, pp. 92-94. '-, enforced. Code 1873, chap. 182, sec. 9, amended by Sess. Acts 1877-8, pp. 68-69. LIENS, on crops. Code 1873, chap. 115, aec. 13, amended by Sesa. Acts 1878-9, p. 178. , Mechanics, Code 1873, chap. 115, sec. 4, amended last by Seas. Acta 1879-80, p. 38. 748 AMENDMENTS TO CODE 1873. , Mechanics, Code 1873, chap. 115, sec. 5, amended last-by Sess. Acta. 1874-5, p. 437. -i . See Judgment Liens. LIMITATION OF SUITS, Code 1873, chap. 146, sec. 20, amended by Sess. Acts 1874, p, 69. MAREIED WOMEN'S ACTS. Act March 31. 1875, in Sess. Acts 1874-5, p. 442; act February 10, 1876, in Sess. Acts 1875-6, p. 49; act . April 4, 1877, in Sess. Acts 1876-7, p. 333 ; act March 14, 1878, in Sess. Acts 1877-8, p. 247. MECHANICS' LIENS. See Liens of Mechanics. MONEY AND INTEREST. Code 1873, chap. 137, sections 4, 5, 6, 7 and 8„ amended by Sess. Acts 1874, pp. 134, 135. . Code 1873, chap. 137, sec. IQ, repealed by Sess. Acts 1874, p. 135. NOTICE, &o., FOR TAKING DEPOSITION. Code 1873, chap. 172, sec. 36, amended by Sess. Acts 1874-5, p. 139. ORDER OF PUBLICATION. Code 1873, chap. 166, #ec. 10, amended by . Sess. Acts 1876-7, p. 274.1 PARTIES. See Death or change of pa/rties. PERSONAL REPRESENTATIVE. Code 1873, chap. 126, sec. 25, amended by Sess. Actsl879-80, pp. 146, 147. POOR DEBTORS' DEEDS. Code 1873, chap. 112, sec 6, amended by Sess. Acts 1876-7, p. 213. See Sess. Acts 1877-8, p. 239. REMOVAL, of causes. Code 1873, chap. 170, sees. 1, 2, amended by Sess. Acts 1878-9, p. 24. , of judges from, &c. Code 1873, chap. 157, sec. 20, added by Sess. Acts. • 1874-5, pp. 19, 20. Notice that to Code, chap. 157, see. 21 is added in Sess. Acts 1874, p. 17. STATE. See Transferring effects out of. SURETIES, relief of Code 1873, chap. 143, amended and re-enacted in Sess. Acts 1877-8, pp. 218, 220. SUSPENDING (BONDS. See londs, TERMS OF COURTS, Code 1873, chap. 155, sec- 14, amended by Seas. Acts- 1874-5, p. 12. , Special, causes tried at, Code 1873, chap. 155, sec. 21, amended by Sess. Acts 1874-5, pp. 8. 9. TIMES OF HOLDING CIRCUIT COURT. Code 1873, chap. 155, s6c. 15, repealed by Sess. Acts 1874, p. 151. TRANSFERRING EFFECTS OUT OF STATE. See Code 1873, chap. 125, sec. 3, and Sess. Acta 1874, p. 224. 1 This amendment to the section, as published on pages 115, 116 ante, is as follows : § 10. Oa afBdarit that a defendant is not a resident of this State, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county or corporation he is, without effect, or that process directed to the oflScer of the county or corporation in which he resides, or is, has been twice delivered to such oflBcer more than ten days before the return day, and been returned without being executed ; or that the defendant in a suit for a divorce from the bond of matrimony is under sentence to confinement in the penitentiary, an order of publication may be entered against such defendant. And in any suit in equity where the bill states that the named of any person interested in the subject to be divided or disposed of are unknown, and makes- such persons defendants by the general description of parties unknown, on affidavit of the fact that the said parties are unknown, an order of publication may be entered against such unknown parties. And in any suit in equity in which the number of defendants, upon whom process haa been executed, exceed thirty, in which it appears to the court by the bill or other pleading or exhibits filed, that the parties before the court represent interest like the interests of those not served with process, an order of publication may be entered against such persons. Any order under this section may be entered either in court, or by the clerk of the court, at any time in vacation, except in cases in which the number of parties exceeds the number of thirty as afore- said. In a proceeding by petition, there may be an order of publication in like manner as in a ' auit in equity. PARTIES IN VIRGINIA STATE COURTS. 749 USURY. See Money and Interest. WITNESSES, competency of, Code 1873, chap. 172, 'aec. 21. See Seas. Acts 1876-7, p. 266. , competency of, Code 1873, chap, 172, seo. 22, amended by Sess. Acts 1876-7, pp. 265, 266. WILLS, Code 1873, chap. 118, sec. 37, amended by SesB. Acts 1875-6, p. 109. AT. Additional cases on Parties to suits in the Virginia State Oou/rts. Parties to suits concerning assets and administration of estates. Wernick vs. McMurdo, 5 Eand., 51 ; Heffernan vs. Qrymes, 2 Leigh, 512 ; Clarke vs. Well's adm'r, 6 Grat., 474 ; Morris's adm'r vs. Morris's adm'r (Sals., 4 Grat., 294, as to what assets are ad- ministered, and whether an administrator de bonis non can sue an administrator. Whether curator may be sued by administrator de ■bonis non see Halseiy (& ah. vs. Craig's adm'or <£ ah., 23 Grat., 716. Tunstall vs. Pollard, 11 Leigh, 1; Andrews vs. Avory, 14 Grat., 239 ; Powell vs. Stratton, 11 Grat., 792, administrator qualifying in another State bringing assets into this. Kinker, <£c., vs. Streit, 83 Grat., 663, foreign guardian coming into this State. Sheldon vs. Armistead, 7 Grat., 264 ; Sillings vs. Pumgardner, 9 Grat., 273, suits by legatees or distributees against administrator and other legatees or distributees. . Mann vs. Flinn, 10 Leigh, 93, opinion of Stanard, J., creditor 'Suing representative of deceased executor. See Moore vs. Oeorge, 10 Leigh, 228, 244; Chamberlayne vs. Temple, 2 Eand., 884. Married woman administratrix, 2 Lom. Ex., p. 815 (marg. 519) •should be read in connection with the provision of the statute, Code 1873, ch. 126, § 9. Parties to suits cortcerning creditors. Creditors' bill, , though not filed as such. Ewing's adm'or vs. Fergusons adm'or <£ ah., •33 Grat., 548. Simmons vs. Zyles d ah., 27 Grat, 928, after a decree for a general account in suit against a decedent's estate, even by a single creditor, all the other creditors may prove their debts before the commissioner, and they, are all treated as parties to the suit. Shand's ex'ix vs. Orove c& ah., 26 Grat., 229, suit in equity against garnishee on judgment against him without making original ■debtor a party. Barger vs. Buckland d ah., 28 Grat., 850, trustee not signing, and out of State, not made a party. 750 PARTIES IN VIE&INIA STATE COURTS. Parties to suits concerning assignors and assignees. Whether and' when assignor a necessary party. Corhin vs. Emerson, 10 Leigh, 668, explained in lAttl^ohn vs. Ferguson, 18 Grat., 83; New- man vs. Chapman,2 Rand., 93; Tiichenor vs. Allen, 13 Grat., 15; Auditor vs. Johnston's ex'ors, 1 H. & M., 541. See Bart. Oh. Pr.^ 164. See Jeffress vs. Qlarh <& als, Va. L. J., 1881, p. 521. Parties to suits concerning bankrupts and assignees. Barger vs. BucUand, 28 Grat., 862. Parties to suits concerning corporations. Officers made parties. B. (& 0. B. B. Co. vs. Caty of Wheeling, 13 Grat., 61. Officer suing ; suit by members of a voluntary association ; suit by an un- chartered banking company. Coffman vs. Sangston <& als, 21 Grat., 263 ; BerJeshire vs. Eoans <£ als, 4 Leigh, 223, Successor of a corporation sued by one creditor without making his co-creditors parties ; or making parties the creditors of H, to whom the successor of {he first corporation had contracted to pay an annual rent. BarJcsdale vs. Finney, 14 Grat., 828. Parties to suits concerning foreclosure of trust or mortgage. Bey- nolds vs. Bank of Va., 6 Grat., 81 ; Price vs. Thrash, 30 Grat., 515 ; Sortons vs. Bond, 28 Grat., 815 ; McBearman's ex'ors vs. Bohinson^ Va. L. J., 18.79, p. 175. Seirs as Parties. As to them, what the effect of a judgment or decree against personal representative. Street vs. Street, 11 Leigh, 498 ; Pugh vs. Bussell, 27 Grat., 789 ; Mason's devisees vs. Peters' adm'r, 1 Munf., 437; Shields's adm'r vs. Anderson's adm'r, 3 Leigh, 729, 736 ; Foster vs. Crenshaw's ex'ors, 3 Munf. 520 ; Sud- gins vs. Hudgins, 6 Grat., 320 ; Bohertson and others vs. Wright^ 17 Grat., 534, 540. Susband and wife as parties.. Harrison vs. Gibson, 23 Grat., 212; Spmcer vs. Ford, 1 Rob,, 684. Parties to suits concerning class. Bull vs. Bead. 13 Grat,, 86. Some inhabitants of a district may file a bill in behalf of them- selves and other inhabitants similarly situated seeking any relief to which they might all in common be justly entitled, although their individual interests might be several and distinct. Parties to interpleader suits. How long plaintiff in interpleader- a party to the suit. George vsi Pilcher, 28 Grat,, 305. PARTIES m ViEGINIA STATE COURTS. 751 Next friend, guasrdian ad litem, committee, do., of parties. Wil- son, do. vs. Smith, 22 Grat., 494: whether next friend for the infant in this case. JBeverley vs. Miller, 6 Munf., 99 : answer of a mother, who was guardian, and who made full defence to suit, treated as the answer of a regularly appointed guardian ad litem to the infant. Campbells vs. Bowen's adm'or, dc., 1 Bob., 241, as to appoint- ment of guardian ad litem to an alleged insane defendant, insanity denied. Lemon vs. Sansbarger, 6 Gh-at. : 301, suit by infants by next friend against former guardian, &c. ; present guardian as such no right to sue former guardian. Durrett ys. Davis d als., 24 Grat., 310 : answer treated as answer of guardian ad litem who signed it, though purporting to be the answer of the infant by his guardian ad litem} Cole's Committee vs. Cole's adm'or, 28 Grat., 870, treated as a suit by the committee, the bill stating that " the complainant, 0, who, being a person of unsound mind, sues by his next friend and committee, A." Parties in Partition suits. The cases of McQlintic vs. Mann, 4 Munf., 328, and Oustis vs. Snead d als., 12 Grat. 261, are not in conflict. See those cases cited on pp. 65-66, ante. Parker vs. McCoy, 10 Grat., 594, cited p. 687, ante, has reference to the sale of lands of infants in proceedings for partition, under the act 1 K. 0., ch. 96, sec. 20, Supp. R. 0., ch. 149, sec. 2. Parties to suits concerning Partnership. Cannon d als. vs. Wel- ford, Judge, 22 Grat., 195, as to whether assignee in bankruptcy of firm or assignees of each partner should be the plaintiffs, when both the firnd and each partner had been adjudicated bankrupts. Parties to suits concerning Purchasers. Purchasers of interest pending suit when to file a petition. Price vs. Thrash, 30 Grat., 515. When assignee in bankruptcy pending the suit to file a peti- tion. Bar, assignee, vs. White d als., 30 Grat., 543. The purchaser in Chowning vs. Cox, 1 Rand., 148, required to be made a party.' ^In this case the decree reciting that the cause came on to be heard on the answer of the guardian ad litem, the court presumed that the answer 'was sworn to though no evidence of the fact in the record. *In Chowning vs. Cox & ah., 1 Rand., 306, recognized and followed in Breekenridge vs. Auld & als., 1 Rob., 148, and distinguished from Floyd vs. Harriion, Jcc, 2 Rob., 161, the court held that a deed 'executed by a debtor conveying land to his creditor and purporting to constitute him a trustee for selling the land and applying the proceeds of sale to his debt, was a mortgage to which the right of redemption was incident. 752 PARTIES m VIRaiNIA STATE COURTS. Purchasers at judicial sales. As to purchasers at judicial sales ; whether parties. Londons vs. Echols d als, 17 Grat., 19 ; Pierce vs. Trigg, 10 Leigh, 406; Suston vs. Cantril, 11 Leigh, 136; Parker vs. McCoy, 10 Grat., 594 ; Buchanan vs. Glarlc, 10 Grat., 164 ; Hughes, da., vs. Johnston, 12 Grat., 479 ; Cocke's adm'r vs. Gilpin, 1 Eob. R., 26 ; Pagers vs. McCluer's adm'r, 4 Grat., 81. What their responsibilities and rights. Zirkle vs. McOue <& als, 26 Grat., 517, cited p. 554 ; Hess d als vs. Pader d als, 26 Grat., 746, purchaser paying to a commissioner of sale who has not given the bond as such does it at his peril ; he must see that the bond has been given before he pays ; Durrett vs. Davis, 24 Grat., 302, cited p. 561; Cooper vs. Hepburn, 15 Grat., 551, cited p. 554; Lhyd vs. Erwtns adm'r, 29 Grat, 598, cited p. 556 ; Tyler vs. Thorns, V. L. J., 1881, p. 621, cited p. 556 ; ThrelMds va. Camp- hell, 2 Grat. 198 ; Young vs. McClung d als, 9 Grat., 836 ; Daniel vs. Leitch, 13 Grat., 195 ; Watson vs. Hoy d als,' Va. Law J., 1877, p. 473, 28 Grat. 698, cited p. 559 ; Dong vs. Welter's ex or d «&, 29 Grat., 348, cited pp. 560, 561 ; Clarkson vs. Read d als, 15 Grat., 297, cited p. 560, and Michie vs. Jeffries d als, 21 Grat. 334, cited p. 561, and Thornton vs. Fairfax d als, 29 Grat., 669. Pepresentation — when persons interested represented sufficiently- hy others. See Buck vs. Pennyhacker s ex'ors, 4 Leigh, 5. Parties to suits concerning resulting trusts. Phelps vs. Seely, dc, 22 Grat., 573, to set up resulting trust by parol testimony it mast be clear and unquestionable, and Borst vs. Nolle d als, 28 Grat., 423, a resulting or 'implied trust may be established by parol evidence. Parties to suits concerning sureties. Craighton vs. Duval, 3 Gall, 74, right of sureties to compel payment of bond by principal, and to compel creditor to receive payment. Parties to suits concerning tenants. Winchester and Strashurg P. P. Cb vs. aifret d als, 27 Grat., 777. Parties to suits concerning trusts. Hogan vs. Duke d als, 20 Grat,, 244. Parties to suits concerning mils. Kinchehe vs. Kincheloe, 11 Leigh, 400, validity of will not affirmed unless all persons con- cerned in interest before the court ; Osborne d als vs. Taylor's adm'r d als, 12 Grat., 117, for the construction of a will affecting the residxium of an estate, all persons having an interest or color of interest in the 'residuum should be parties. 8 But see Thompson & als vs. Brooke & als., 6 Va. L. J., 42, when bond is given by one of two commission ers and payment is made to both commissioners. NOTES ON DOWER. 753 Additional cases on Dower. Of what widow endowed. Medley vs. Medley, Jones vs. Hughes. Heference has already been made, p. 579, ante, to Medley vs Med- ley, 27 Grat., 568, and to Jones vs. Hughes, 27 Grat., 560. In these cases it was held that the widow of one holding an estate in ■ fee defeasible upon his dying without issue, though he die without issue, was entitled to dower in the land. Whether an alienee of the husband and wife, in svah case, could ■claim the dower estate of the wife after the death of the husband. Oorr vs. Porter. The cases of Medley vs. Medley and Jones vs. Hughes, ubi supra, were distinguishable, the court said, from Oorr vs. Porter, 33 Grat., 278. In Oorr vs. Porter, the alienee of the husbaind and wife, the husband holding such an estate and dying ■without issue, leaving his wife surviving, claimed that he was en- titled to the dower of the wife as established in Medley vs. Medley ■and Jones vs. Hughes. But the court held that the alienee of the husband and wife did not obtain by their conveyance the wife's ■dower right which she would have enjoyed but for the conveyance, that such conveyance simply relinquished her contingent right of dower, did not create an estate separate and distinct from the hus- band, and that the title acquired by the alienee was not to two es- ■ tates or interests, that of the husband and wife, but to one estate, that of the husband, discharged of the wife's contingent claim of ■dower. Dower m Beneficial ownership. Wilson vs. Damson. " A legal title in the husband is nothing as regards the wife's right of dower, unless accompanied by the beneficial ownership ; and the beneficial ownership is everything though separated from the title.'' Baldwin, J., in Wilson vs. Davison <£ als., 2 Rob. R. 384. Waller vs. Waller. The Court of Appeals had Judge Baldwin's remark in mind, and cited it when deciding Waller vs. Waller's adrnor (& als., 33 Grat. 83. Waller, in 185,3, before his marriage, sold land to.Bigler and took a deed of trust to secure what was to be paid of the purchase money. In 1862, flagrante bello, while Bigler was a citizen and resident of the North, Saunders, the trus- tee, was required to sell and Waller purchased, and a deed was made to him. Waller married in 1863. The sale to Waller was 95 754 NOTES ON DOWER. afterwards set aside by the U. S. Court, and a decree made direct- ing the land to be sold and the purchase money due Waller to be paid him. Waller's widow claimed dower. It was held that the sale to Waller by Saunders, the trustee, was a nullity, and that the widow was not entitled to dower in the land. Wfien a wife's contingent right of dower destroyed. Hobinson vs. Shacklett. In Robinson vs. ShacMeit, 29 Grat., 99, the wife was a party to the suit in which the sale of the land was decreed, and it was held that the wife's contingent right of dower was covered by the decree. Wife's right of dower estopped as to a certain fund in a receiver's- hands. Tikon vs. Davis. Tilson vs. Davis, 32 Grat., 92, was a. creditor's suit against the estate of the administrator of the hus- band. In that suit, the widow filed a petition claiming a share in the estate of her son, whose guardian the administrator had been, but making no claim of dower. A final decree was rendered, di- recting a distribution among the creditors of the administrator's es- tate by the receiver. Held, that this decree was a bar to the sub- sequent bill of the widow to subject a fund in the receiver's hands to the payment of her dower interest. Wife's claim for dower abating ratably with creditors. Miller vs. Orawford. In Miller vs. Crawford, 32 Grat., 277, the contin- gent right of dower of the wife of A., was, together with indebted- ness to B. and C, secured by a deed from A. and wife, in which the wife, B. and 0. were secured as creditors of the first class of the husband, they to pay off certain judgments and executions para- mount to the deed. The property did not sell for enough to pay the three in full and one D., who had recovered a judgment. Seld, that the wife of A. must abate ratably with B. and 0. for the pay-* ment of said judgments, &c., and their own claims. When wife may claim dower, the settlement upon her having been set aside. Davis vs. Davis. In Davis vs. Davis, 25 Grat. 587, a settlement was made upon the wife, the consideration for which was that she united with her husband in conveying away her in- terest in his real estate. The settlement was set aside. Seld, that she should be restored to the rights she had before she united in the deed conveying the. property, as far as this could be done without prejudice to the rights of creditors or of purchasers. Doioer not commuted at instance of widow without consent of other parties. Harrison vs. Payne. In Harrison vs. Payne, 32 Grat. 387, it was held that commutation of dower would not be given the widow unless by consent of all the parties interested, even though the dower could not be assigned in kind, and must be satisfied out of the proceeds of sale. She is only entitled to the interest on one-third of the proceeds of sale. This case settles the doctrine adversely to the view presented by Mr. Green in the note printed on pp. 55, 56, ante, and adversely to the cases of Oassa- NOTES ON DOWER. 755 more vs. Brooke, 3 Bland. 267, and MoOormioTc vs. Gibson, 3 Bland. 499, 502w, therein cited. Sow widow's dower assigned, as against lien creditors of her hus- band created since her marriage. Simmons vs. I/yle's adm'or. It was decided in Simmons vs. I/yle's adm'or, 27 Grat. 922, that as* against creditors of the husband by lien created since her marriage the widow was entitled to have her dower assigned without regard to its effect upon the interest of the creditors ; that if from the nature of the property or of the husband's interest in it, the dower could not be assigned in kind, the court might sell the whole pro- perty and make her a moneyed compensation. It was error in such case to decree a sale of the land until the widow's dower had been assigned her or it was ascertained that it could not be ; and, in the latter event, until the money compensation in lieu of her dower had been ascertained. Simmons vs. I/yle's adm'or, 32 Grat. 752. The widow occupied the mansion, having with her her two infant children, whom she supported, and no assignment of dower was made to her. • She paid a balance of the purchase money due for the property and secured by the vendor's lien ; and she paid the taxes due upon the pro- perty. As against the judgment creditors of her late husband it was held — 1. That she was entitled to amount of taxes. 2. To so much of the purchase money paid by her as was properly payable by the heirs, and this should be a prior lien to the creditors. 3. Having held the mansion house, and the heirs being infants unable to assign dower, she must be considered as holding as to one-third of the house as dowress and liable to pay one-third of the rest of the purchase money during her life. 4. It becoming necessary to sell the property, and therefore to fix the present amount chargeable to her on account of said interest, the annual rent was to be treated as an annuity, to be computed for so many years as she might be supposed to live, regard being had to her state of health ; and the sum so ascertained in gross was to be deducted from the amount of the purchase money paid by her. 5. There being accounts to b& taken in the case, so that the property cannot be sold at once, the court should appoint two or more discreet persons to fix a rent upon the house; and if the widow will take it at the rent so fixed, she to pay two-thirds thereof, it should be rented to her; and as the court had funds of hers under its control sufficient to pay the rent, no security should be required of her. Dower of widow of a vendor assigned in other land in exoner- ation of land sold. Stimson vs. Thorn. In Stimson vs. Thorn, 25 Grat. 278, it was held that if one who sells land die seized of other real estate on which he in his lifetime, and his widow since his death lived, her dower should be assigned her out of that land in exoneration of the land sold. 756 NOTES ON PARTITION. WTien outstanding right of dower should not prevent specifie per- formance of a contract of exchange of lands, Stimson vs. Thorn. T. had contracted with H. for an exchange of land. H. had been in possession of his land for twelve years, and had paid all the purchase money. D. from whom T. had purchased had died, and his widow was entitled to dower in the land proposed by him to be exchanged with H. Meld, that if the dower estate of D.'s widow were the only defect in the title of H. in the land, such defect was not suflScient to prevent the specific execution of the contract of ■exchange, but the same might be executed with an allowance of compensation for such defect in the terms prescribed in the Code, ch. 106, § 12, p. 855. Widow, under a mistake as to her rights under a will, takes land under it and a legacy ; yet, after this permitted to elect and take Aer dower. Dixon vs. McOue. In Dixon vs. McOue, 14 Grat., 540, previously cited, p. 51, the widow had taken the whole land under the will for five years, and also a legacy of property to the value of $500, to aid her in carrying on the farm, yet having been under a mistake as to her rights under the will, she was not held to have elected under it, but might still take her dower. Parties to dower suit : when bill not m,ultifarious. Boyden, (6o„ vs. Lancaster. In Boyden and wife vs. Lancaster, '2 P. & H. 198, the bill was by a widow to recover lands aliened by the husband during coverture without the relinquishment of the wife. To such a bill the heirs of the husband were not necessary parties, nor any purchasers of the land except the holders when the suit was insti- tuted. In that case the bill was filed against several purchasers of separate and distinct tracts aliened by the husband during the coverture : the bill was not multifarious. The widow might elect to proceed against each separately or all together. •VII. Additional cases concerning Partition. See the notes on Partition on pp. 61-71, 575, ante. Oommissioner becoming purchaser. Howery vs. Selms. In Sow- ■ery vs. Helms, 20 Grat., 8, cited before, p. 575, the commissioner to sell became the purchaser in fact, though the purchase was nominally by a third person. The court held that the purchase was voidable at the election of any party interested in the land. Some of the parties elected to avoid the sale ; others affirmed it. The entire property was resold (not merely the undivided interests of the parties objecting to the sale), and the court held that the original NOTES ON PARTITION. 757 purchaser was entitled to the shares of the proceeds of the resale, which would otherwise have belonged to those who had elected to affirm the original sale. Decree in Partition not to he impeached collaterally . Wilson vs. Smith. In Wilson vs. Smith, 22 Grat. 493, the court held that a decree under Code of 1860, ch. 124, § 3, (Code 1873, ch. 120, § 3,} could not be impeached in any collateral proceeding except on the ground of fraud or surprise. Heirs refusing to come in on first division permitted to come in on the second, when the dower property was divided. Persinger vs. Simmons (£ ah. In Persinger vs. Simmons (& ah., 25 Grat., 238, heirs who had refused to come in. on the first division were per- mitted to come into the partition when land assigned as dower to the widow was divided. In that case it was also held that the surviving husband of one of the heirs was a proper plaintiff in a suit for partition. After sale made in Partition suit of land in one county, no objec- tion to Us sale that if land in another county had heen brought in partition in land could have heen made. Frazier vs. Prazier. In Fraeier vs. Frazier, 26 Grat. 500, the parties to a partition suit owned, besides the land decreed to be sold, other land in another county. It was objected to the sale that if the two tracts were re- garded partition in kind could be made and the sale was illegal. The parties did not wish to sell the other tract, which was produc- tive. The court would not sustain the objection after the sale made, and refused to set it aside. In that case the fact that the sale was made for Confederate bonds, ■ which afterwards became worthless, was no ground for setting aside the sale. Nor was it a ground for setting the sale aside that the testimony of the witnesses who testified as to the price offered was confined to the value of the real estate sold and did not embrace certain furniture sold with it, which was not worth more than $2,000 or $2,500 in Confederate money, for this could not have been a material element to charge the estimate of the value of the real property, all agreeing that the purchase money offered was a very high price for the property. Where a will directed that division of the estate should not he made wntil certain contingencies had happened, the renunciation •of the will by the widow did not authorize the partition before the contingencies occurred. Gregory vs. Gates <& ah. In Gregory vs. Gates d ah., 30 Grat. 83. The testator directed that his estate should be kept together for the support of his wife and children until his widow should marry or die, or until his youngest child should come to the age of twenty-one years. And he directed that a certain sum should be paid to a child who should marry, and thus cease to be supported out of the profits of the estate. The widow renounced the will. Seld, that this did not authorize a division of the estate, but it was to be kept together until one of the contingencies mentioned in the will occurred. 758 NOTE "ON BILLS OF REVIEW. What a Partition suit hy guaurdmn : right of guardian to institute: rights of pu/rchas&r under a judicial sale. ZwTcle vs. McOue. In Zirkk vs. McOue d als., 26 Grat. 517, the bill was by a widow against her own infant children and the adult children of her hus- band by a former wife. The bill stated that the plaintiff was guardian of her infant children and in her bill the plaintiff set out her rights and the rights of her children, and prayed for assign- ment of her dower or commutation, and that the interest of her infant children should be ascertained and placed under her control as their. guardian, and for full and final adjustment and settlement of the rights of all parties in the whole estate of the decedent, real and personal. The court held that the bill was plainly a suit for assignment of dower and for partition of the realty among the heirs or a sale, as might be deemed most conducive to the interests ■of all ; and although the plaintiff did not formally sue as guardian the averments of the bill were sufficient to bring her before the court in that character ; and that she as guardian had a right to ■sue for a partition. The case is instructive on other points ; specially so, as to the rights of purchasers under judicial sales. The court expressly waived the decision of the question, whether the title of such a purchaser is or is not affected by a reversal of the decree under which the sale is made. That question, say the court, is still an open question in Virginia. But the court cited with approval its former decisions, Parker vs. McCoy, 10 Grat. 594, 605, Daniel vs. Leiich, 13 Grat. 195, 210, Walker vs. Page, 21 Grat. 636, 643, in which was manifested a very strong .disin- clination to interfere with the rights of such purchasers, unless upon palpable and substantial errors in the proceedings and ■decrees under which such titles are acquired. And the court held, that in the case at bar, in which there had been a sale fairly made, and subsequent confirmation of it, and a conveyance to the pur- chaser, the purchaser's title should not be disturbed, though the facts necessary to warrant a sale did not appear from the commis- sioner's report or by the depositions : it was sufficient that facts appearing elsewhere in the record warranted the sale. "VIII. Note on bills of review. Error on the face of the decree. Whether a bill of Teview for «rror on the face of the decree might be filed without leave of the court was doubted on page 696, n 4. The question therein mooted is put at rest by a decision of the Supreme Court of Appeals of Tirginia in the case of Davis vs. Morris's ex'ors, not yet reported. NOTE ON FINAX DECREES. 759 In that case the court regard the rule as laid down in Silb vs. 3owyer, 18 Grat. 364, 376, cited p. 696 ante, that previous leave is necessary to the filing of such a bill. And the court say, whatever may be their conviction of the inconveniences of the rule, they do not feel at liberty now to change it. Burks, J., in Parker vs. Dil- iard d ah., 5 Va. L. J., p. 389, defines error of law 'apparent on the decree, as error appearing " in the record, exclusive of the evi- dence." In Thompson (& ah. vs. Brooke (& ah., 6 Va. L. J., 42, it was held that on a bill to review a decree on the ground of errors in law, the errors must be such as appear on the face of the decrees, orders and proceedings in the cause, arising on facts either admitted by the pleadings or stated as facts in the decree : and if the errors complained of be errors of judgment in the determination of facts, such errors can only be corrected by appeal. Bill of review for newly discovered evidence. Upon asking leave to file a petition for a rehearing, or bill of review, on the ground of newly discovered matter, the new matter must be so stated in the bill as to enable the court to see, on inspecting it, that if it had been brought forward it probably would have changed the ■character of the decree ; and it must be so stated that the defend- ant can answer it understandingly, and thus present a direct issue to the court. It is not suflS^cient to say, that the party asking the leave expects to prove certain facts. He must state the evidence on which he relies distinctly, and file affidavits of witnesses in support of his averments. Whitten, do. vs. Saunders, dc, 6 Va. L. J. 48. Note on Interlocutory and final decrees. On page 506, ante, there will be found a collection of cases on this topic. See also Mawlings' s ex'or va. Rawlings d ah., 5 Vir- ginia L. J., p. 498. In Ryan's adm'or vs. McLeod d others, 32 Grat., 367, cited ante, p. 507, Judge Staples cites and comments on the cases as to interlocutory and final decrees. Judge Baldwin, in Ooeke's adm'or vs. Gilpin, 1 Rob. R., 20, 28, after a review of the cases reaches the cenclusion mentioned on p. 505, ante. This con- clusion was approved by Staples, J., in jRyan vs. McLeod, uhi ■supra, and by Burks, J., in Rawlings' s ex'or vs. Rawlings d ah., 5 Va. L. J., pp. 498, 504. See Judge Burks's comment in 5 Va. L. J., p. 507, on Judge Tucker's remark in Sill's ex'or vs; Fox, Adm'or, 10 Leigh 587, 591, that the decree was interlocutory because an attachment was necessary to enforce it. Such is not understood to be the true criterion of interlocutory decrees. In Rawlings vs. Rawlings the court held that in a suit for the adminis- tration of an estate a decree which settles the principles of the case, 760 DOCTBINE OF REPRESENTATION. distributes the whole property to the parties entitled, and direot» the payment of the costs, leaving nothing to be done in the cause, is a final decree, though it may possibly laecome necessary to resort to measures to enforce it. See Thompson d als. vs. Brooke d als.,. 6 Va. L. J., 42. See Wooding's ex'x vs. Bradley's ex'or, &c., 5 Va. L. J., 765, as- to the power of the court to set aside an interlocutory decree con- firming a commissioner's report, when it is clearly shown that the commissioner's report if carried out would be productive of injus- tice and wrong. The doctrine of representation is well illustrated by Baylor vs. Dejarnette, cited on p. 217 ante. Bucic vs. Pennyhacher, cited p. 752. ante, illustrates as strongly as any case can, the reluctance of the Court of Appeals, when a cause has been proceeded in to final decree, to undo all that has been done, because of a failure to make certain per- sons defendants, who, strictly speaking, ought to have been parties.. In Buch vs. Pennyhacher s ex'ors, there was an assignment of certain choses in action to Bucic, upon trust that he should apply the moneys collected to the payment of the debts due from Bickerson. <& Conn, and such debts of Dich&rson d Amis as BucJc had in any way become bound for, and pay the surplus to Bickerson d Amis^ or to their order. Afterwards Biokerson d Amis drew an order on Buck, requiring him to pay to B. Pennybacker $1,533, out of any moneys that might be in his hands after paying the debt of Bickerson d Conn and such debts of Bickerson d Amis as he was bound for ; and Buck accepted this order conditionally. On a bill by Pennybacker's ex'ors against Buck alone, an order was made by consent of the parties referring the accounts to a commissioner. Bickerson was present at the taking of the accounts in the commis- sioner's office, and was a witness in the suit. The commissioner's report shewed that after satisfying all the preferred debts there was a surplus in Buck's hands, applicable to the debt due ta Pennybacker, of ^1,060, with interest. Whereupon the court de- creed that Buck should pay that sum to the plaintiffs ; and he ap- pealed. In the Court of Appeals the question was whether Bick- erson d Conn ought not to have been made partifes. It was said by the president, with great force, that if Bickerson d Conn should hereafter sue Buck, they might shew that there were yet other debts due them for which the fund was primarily liable ; that in such case the decree in their favour would be inconsistent with, that in favour of Pennybacker's ex'ors ; and between the two de- crees Bu^k would suffer. But two judges, in a court consisting of three, affirmed the decree of the court below. They placed their decision chiefly upon the ground that the cestuis que trust provided for by the assignment, were represented by the trustee. INDEX. INDEX. The BeferenceB are to the Pages. ABANDONMENT, decree of divorce for 585 ABATEMENT— by return of non-resident 6 and dismission because bill not filed in time 6 by death of parties. How remedied 125, 126 , pleas in, to jurisdiction 268, 277, 279 , pleas in, to the person 268, 280, 284 of proceedings on Information 37 between legatees '. igS ABSENT DEFENDANTS. See Absent ParHes and pp. IIS, 117, 130, 131, 2i\, 414, S17, 726 See Evidence and p. 414. ABSENT PARTIES. See order of publication and pp. 115, 117, 130-1. Personal service on n6n-resident defendants 117 Posting and publication of order against absent defendants 116, 117 Evidence in attachment suits against absent defendants 414 Attachment against estates of absent defendants 211 When may have a rehearing .< 517 Cannot appeal, when they may petition for rehearing 691 ACCIDENT. See Injunction to judgments and. p, 92. ACCOMMODATION. See Contribution and pp. 219, 220, 221. ACCOUNTS. See Executors and Administrators, Guardians, Trustees, Partnership and pp. 528, 546. Decrees for account 523-548 Parties to bills for account. See Disposition of Assets and p. 197. Surcharging and falsifying accounts of executors 533 Who necessary parties in settling accounts of a partnership 203 On taking accounts, direction to examine parties 528 Notice to attend commissioner on taking accounts 624 Practical notes concerning accounts 528-547 ACCOUNT STATED. Plea of account stated 259, 259«, 296 must be under oath , 2960 Plea of account stated must aver that it is just and true 260, 261 If fraud be charged, or specific errors, must be denied in plea 261 ACKNOWLEDGMENTS. See Admissions, Evidence, and pp. 409, 417, 424, 425 ACQUIESCENCE. See Laches, Lapse of Time, Waiver. Action at law sometimes directed in lieu of issue out of chancery.... 618 ADDRESS OF BILL in English Courts, in United States Courts, and in Virginia State Courts 18 ADJOURNMENT of deposition for more than one day, on notice that the deposition will be adjourned " from day to day," improper 470 ADMINISTRATION. See Accounts, Executors and Administrators, and pp. 531, 539; Disposition of Assets and p. 197; Lega- tees and pp. 197-201, 537 ; Creditors and p. 749. iv INDEX. — (Administrator.) Parties to bills concerning administration of estates..,; 197, 203, ; parties to suit in equity by creditor of testator against legatees 197 ; on bill to subjecf land in hands of devisee of a joint and several obligor, no de^cree should be made unless the other obligor or his representatives be before the court 197, 198 ; all the legatees should be made parties > 1974 200 ; and the executor also, unless he has settled his account and de- livered the vfhole estate to the legatees 197 ; if executors have died without paying over proceeds of land de- vised to be sold, their representatives may be parties 200 ; children of legatee suing as such cannot in general maintain bill, 199^ ; but if one of several children of an intestate die in infancy the others may recover the whole amount due from administrator 199 ; distributees may assert rights in an estate, but before distribution personal representative must be a party 199^ Legatees cannot sue an executor de son tort without making ad- ministrator a party 199. If two executors have qualified and acted jointly both must be sued, 199 So if real estate is devised' to be sold by executors and proceeds divided, and two executors qualify and sell, a bill for share of proceeds must be against both, ...; 199 ; the other persons interested in proceeds must also be made parties, 200 ; but in suit by a distributee, against the active administrator for his administration of the estate, the personal representative of the dead administrator who took no part in the administration need not be a party 202 Legatees may in certain cases proceed against sureties without making heirs-at-law of principal parties, or pursuing real estate of principal : 201 In suit by residuary legatees when specific legatees necessary parties, 20I In suit by legatees against sureties of executrix, all must be made parties, unless sufficient reason shown for omitting any 201 Legatee entitled to priority of payment need 'not make those who are interested in the residuum parties 198 A bill not for certain pecuniary legacy, but a share of a subject to be divided among several, they must in general be all made parties, 198 As where one of several residuary legatees sues for his share 198 ; but if will entitle children to shares of estate when they separate from the family, on bill by one after allotment to others, those alone who remain entitled need be made parties 198, 199 If legatee die without receiving legacy, the suit for it should be brought by his personal representative 199 J if executors never received the proceeds, bill may be against the purchasers, without making the testator's administrator de bonis non a party , '. , 200 ; if several pecuniary legacies, each legatee may sue for his own without making the others parties 198 ; but if fund for legacies prove deficient, all. the legatees who are liable to abate must be made parties, 198 ; frame of bill by pecuniary legatee in behalf of himself and such others as might choose to come in ; ,".,,„ 198 ; legatees suing an executor de son tort 199 ; in general, a distributee seeking to recover must make the other distributees parties 202 ; as to making sureties of an administrator parties 201 ADMINISTRATOR. See Sureties and p. 201, Executors and Adminis- trators, Commissions and pp. 531-539. INDEX. — {Admissibility.) v , plea that party is not administrator 283 ADMISSIBILITY. See Evidence, Parol Evidence, and pp. 430-438. , of parol evidence as a defence against a bill, praying specific per- formance 433 , see Errata; and strike out the word not in the analysis of Borst vs. Nalie.. ■. 435 ADMISSIONS. See Evidence and p. 409, 424. inform of pleadings 409, 424 by agreement of parties 424, 426 , if made in propositions of compromise excluded 425 , extent of admission closely inspected 426 , evading principles of law, not sanctioned 426 in accounts rendered 529 cannot be made on part of an infant 412 , effect of reference to document itself for greater certainty 343 , effect of bill taken /;-» confesso .; 413, 414 in answers of idiots 416 . in answers of husband and wife 416 ADULTERY, cause of divorce a vinculo matrimonii , 99 ADVANCEMENT, when court decides in reference to advancement with- out referring the question to a commissioner 546 ADVERTISEMENT of sale 555 , in lieu of personal service of notice. See order of publication and pp. n6, 117. AFFIDAVIT. See Affirmation and p. 348, and 348 n, (302}. to bill of injunction, &c 32, 33 to answer of officer of a corporation 402 to obtain order of publication , 115 to obtain evidence of co-defendant as a witness 455 Effect of certifying affidavit insufiiciently to an answer 348» {301) Before whom affidavits made 477. 47* of service of process, when served by one not an officer 4 What affidavit should be made on motion to amend an answer 378 to bill of interpleader 102, 103 to bill of injunction 89 that demurrer or plea is not interposed for delay, in United States Circuit Courts ...384, 221 to pleas 384, 273, 274 Form of affidavit to plea in United States Circuit Courts 275 to answers 360, 384 to disclaimers 382 in behalf of a purchaser resisting the confirmation of a sale 564 AFFIRMATION— in lieu of affidavit 348, 348« (302) AFTER BORN PERSONS. See Representation. AGENT. Suit cannot be maintained in the name of an agent or of an at- torney in fact ; 19 AGREEMENT. See Admissions, Evidence, Release, and pp. 409, 425. Plea of final agreement 264 ALIEN ENEMY— may be a defendant 729 Rights of defence 7^9 , pleas of.'. 282, 283 When wif^ of, may sue alone 207 ALIENEE. See Purchaser, Vendor and Vendee. ALIMONY. Decree for 584 ALLEGATA ET PROBATA. See mis- Proofs and allegations to correspond 10, II, 325 Effect of evidence as to facts not alleged 325 vi INDEX. — {Allegations.) , plaintiff cannot recover upon a case proved essentially different from that alleged II ALLEGATIONS. See Allegata et probata and p. 325. ALTERNATIVE STATEMENTS— in answers, presenting consistent de- fences .■ ; 3251. AMENDED BILL. See Amendment of bills and pp. 218, 615. Form of amended and supplemental bill 669^ AMENDMENTS— «/• answers 374, 375 , when amendment in plaintiff's favour 375, 37& , when matter of law is relied on 376, 377 , when amendment in defendant's favour in statement of facts 377 , in United States Circuit Courts 377, 378 , in what manner made 378, 379 , at hearing of cause 379 AMENDMENT OF BILL, after demurrer sustained 182 ; after appearance of defendant in United States Courts 141, 655, 65& ; after appearance of defendant in Virginia State Courts 653, 654 ; when supplemental bill necessary 653, 654 ; after answer filed 653, 655 ; form of amended and supplemental bill 102 ; by inserting new matter or adding new parties or striking out mat- ter not relevant 651, 652 Proper functions of amended bill , 652 When without, and when with leave of court, amendment made 652 . When leave to amend refused 652 After replication to answer, how amendment made 652™ When after replication, motion to amend denied 682»i Greater strictness in amending injunction bills, and other bills sworn to 6S3?i When by amendment others may be joined as co-plaintiflfe 653 A guardian suing as such, permitted to amend so a; to file the bill in the name of the ward by his nextfriend 653 Amendments usually made on a separate paper 653 When in strictness supplemental bill should be filed 653, 654 A plaintiff permitted to amend by changing prayer from specific performance, to rescission of a contract , 654 A party interested suing in wrong character, permitted to amend 654 Before defendant's appearance, plaintiff may of right, in V. S. C, amend his bill 654 After appearance, plaintiff in Va. S. C. may amend after leave in term time, or in vacation without leave 654, 655 But if without leave and in vacation, bill may be dismissed at next term '. 655 Rules of U. S. Courts as to amendments of bills 655. After cause set for hearing in V. S. C, new charges or a new mate- rial fact should be introduced by supplemental bill 656. When appellate court will not dismiss the bill in case of a plaintiff showing right to relief, but permit the plaintiff to amend by making necessary parties 656. A new case and wholly different from that made in the bill, not per- mitted in U. S. C. C. to be made by amendment i 656 In other cases an amendment permitted in U. S. C. C....- 657 When objection for want of parties not permitted in U. S. Supreme Court J 657 An amendment of the bill, authorizes a change of defence 657 Parties to amended bill deemed to be made parties to the suit at the time of the amendment, not as of the time of institution of suit 657 INDEX. — (Annuities.) vii Plaintiff amending his bill loses priority of suit over cross bill 658 Note on amendments taken from Dan. Ch. Practice 658» Defences to amended bills 664 Special grounds of demurrer, e. g., departure from original bill 665 that plaintiff had acquired title subsequently to filing his original bill 66s Form of an amended bill 666 . Parties to amended bills, see pp. 651-663, 732. ANNUITIES— Value of. 548 ANSWER — Forms «/^— General formula of answer 358, 361 of husband and wife ,'.: 360 of two defendants 360 of personal representative and in one's own right 360 of guardian ad litem 360 of answer when Christian name misstated in bill 361 of plea and answer 361 of defendant to bill of foreclosure 1 361, 362 modern form of answer in England 362, 363 of infant defendant by guardian ad litem in suit for sale of infant's lands 363, 549 of infant defendant, over 14 years of age, in same 549 of executor to bill of legatee 364 to a bill of injunction 365 to a bill of injunction to a judgment , 366, 367 of executor admitting legacy and sufficiency of assets, but denying right of complainant to legacy until, &c 368, 369 to bill charging usury 370, 371 in Smith vs. Nicholas 371, 374 Answer of other than corporations aggregate, under oath 347, 348 When expedient to put in answer of officers of corporation under oath 348 When oath may be waived 348 When by answering in part, capacity of plaintiff to sue admitted, 348, 349 Whether defendant should answer Combination Clause in bill 349 What part of bill, defendant should answer 349, 350 Whether plaintiff by waiver of oath can avoid effect of answer, 350. 35'. 726 Whether a defendant is compelled to state his belief 351 of infant, how pxt in 351, 352 When answer of infant must be sworn to 352 Married woman usually answers with her husband 352 When married woman answers separately, and by her next friend, 352, 353 When married woman becomes a substantial party to the suit 353 Married woman of unsound mind answers by her guardian ad litem, 353 A W// treated as an answer 355 Rules concerning answers in United States Courts 355, 358 When answer of one defendant helps his co-defendant 338 to bill for specific performance 338 to bill setting up usury 338 Whether defendant is bound to insist on Statute of Limitations in his pleadings to avail himself of it 339 When safe to state in the answer that the agreement insisted on was not in writing 339 in Vathir vs. Zone 339 A defendant sued in two. characters should answer in both 340 What is the effect of not noticing in an answer a statement of the bill, 340, 341 viii iND-EX.-^{Answers.) as to documents and papers 342. 343 The form of an answer 344 Two or more persons may join in one answer 344 One defendant may adopt the answer of another , 344. Heading of an answer 344 , form of, when by person sued in two characters 345. , form of, when by one partner for himself and co-partner 345 Joint answer of several executors 346 Whether answer prepared for five defendants can be received as the answer of three 34^ , usual beginning of. ...'. 34^ , substance and conclusion of. 347 to be signed by counsel 347 of corporations aggregate under. their common seal 347 See Amendment of Answer. When defendant must answer 323 When defendant may answer 323 May insist on defence in answer though a plea alleging it overruled.. 323 Offices of an answer 323, 324 Defendant may answer at any time before final decree 323 , should apprize plaintiff of the case defendant sets up 324 , should state conclusions of facts 324, 325 May insist on any number of> consistent defences 325" , not same certainty in, as in bill 326 Defendant may, in his answer, rely on matter he could have pleaded, 326 Defendant must answer y«//^ as to matters of fact 327, 332 Exceptions to the rule of answering fully 327, 328 Whether, in answer, a bona fide purchaser, &c., can rely on that and answer no farther ; 328, 329 Whether other exceptions to the rule of answering fully 329, 330 What interrogatories defendant is bound to answer; what not .' 331 Defendant must answer in a direct way, without evasion 331, 332 When answer must he positive 332, 333 When rule as to positive answer relaxed 333 Defendant must answer substance of each charge 334 Defendant must get and give full information 334« Defendant must discover, though discovery not material to plaintiffs title 334. 33S must be particular to particular charges 334 Executor denying debt must either admit assets or set forth an ac- count of them! 335 Defendant denying partnership, yet required to discover what goods he had consigned....; 33S . Tests to ascertain what questions are to be answered 335 , should not contain impertinent or scandalous matter 335, 338 , in Masonvi. Mason:, 336 impertinent in setting out long schedules 336 in support of plea 240, 243, 24371 When answer accompanies plea, before answer excepted to, plea should be set down for argument 319 After two defective answers, defendant brought in to answer inter- rogatories 114 When answer may be filed 112 When an answer to an injunction bill may be filed in vacation H2 ANSWERS — may be filed at any time before final decree 42, 112 to bill of injunction may be filed in the interim between the rules, as well as at rules or in court 112, II2« must be replied or excepted to 112, 113 ' INDEX. — {Appeal.) ix See Exceptions to answers, and p. 393. See Replication and p. 388. What done, after a second insufficient answer 114 Orders relating to answers 596, 597, 598, 599 APPEAL. See Appellate Court, Absent Defendants, Petition, Assignment. APPEARANCE— to suit ...161, 162 ; by infant, by his guardian ad litem 114 ; by married woman, by hernext friend 352 Appearance-day in the United States Circuit Courts 139, 715 APPELLATE COURT will reverse a decree in a suit not properly ma- tured .' 502, 503 ARBITRATION AND AWARD, plea of. 263, 264, 301, 303 When plea pleaded, and how, to a bill charging' fraud 263, 264 When plea that parties had covenanted to refer to arbitration not good 263 Parties to bill concerning 206, 218 ARGUMENTS, of equity causes 501, 502 ASSETS. See Administration and pp. 197, 749; a.ni Executors and Ad- ministrators and pp. 197-203, 220; Creditors' Suits and pp. 200, 216, 689, 687. ASSIGNEE. See Assignment. ASSIGNMENT. See assignee and pp. 204, 206, 750. Parties in suits concerning assignments 204, 205, 206, 750 who must be parties to bill for redemption after assignment by mort- gagor or mortgagee 193 or to bill of foreclosure after assignment of mortgage 196 whether assignor of judgment or other chose in action is necessary party to bill by assignee 204 It seems not, if he has parted with his whole interest by writing 204 ; otherwise, if there be no writen assignment,,. 204, 206 If vendee has parted with his whole interest by writing, he need not be party to assignee's bill for a title 211 A creditor may sometimes sue a corporation assigning all its stock and property to a successor without convening all the creditors.... 205 To a suit to set aside a trust deed under which he claims, an assignee a necessary party 205 Other cases in which assignees were necessary parties ....205, 206 Objection of joinder of assignor with assignee as plaintiff, too late on an appeal 206 ASSIGNOR. See Assignment. ASSISTANCE. Writ of. 602,603, 606 ASSOCIATION. See Banking Associations, Class, and pp. 215, 216. ATTACHMENT. See Absent defendants, and pp. 211, 414; Foreign Attachment, and pp. 211, 212 ATTORNEY AT LAW. See Counsel and Attorney , 3.-a.i. f, i.T.^. ATTORNEY IN FACT. See A^ent. AVERMENTS IN ANSWERS. See Allegata et probata, and p. 325. AVERMENTS IN BILLS. See Allegata et probata, and p. 325. ; an interrogatory not founded on averment in bill of no avail 36 AVERMENTS IN PLEAS. See Pleas, Accounts, Fraud, and pp. 261, 247-271 AWARD. See Arbitration and Award, and pp. 206, 2l8, 263, 264, 301-303 ; suit by next of kin to impeach award 2o6,.'2l8 ; held invalid ..'. 646 BANKING ASSOCIATIONS AND CORPORATIONS. See pp. 215, 216, 218, 750. BANKRUPT— See assignment, and pp. 205, 215, 220, 750. B INDEX. — {Bar.) , Parties to suits concerning bankrupts , 205. 750 Plea of bankruptcy of plaintiff. 280, 281 BAR, pleas in , 255-267 BILLS IN EQUITY— pp. 7-109. See Parties to Suits and pp. 189, 223. , when to be filed... no must be filed within three months after service of process 6, no must be filed, after a rule to file no , mutter of. .7-I6 must state the case 10, 11 must state sufficient matter... n must show liability of defendants or their interest 12 must not blend distinct subjects 12, I2», 13 Sometimes defendant may insist that several persons having a com- mon interest should be united in one suit 13, 14. Bill must not contain impertinent or scandalous matter. 15, 717 Should pray relief. i6 ,form of. , 16-36 Address I& Names of plaintiffs 18, 19 Stating part , 20-23 Charge of Confederacy 23 Charging part 23, 24 Averment of jurisdiction 24-25 Interrogating part 26-28 Prayer for relief 28-30 Prayer for process 30 Whether statements of bill can be supplemented by answer 33 Whether under prayer for general relief an interest not claimed in the bill can be recovered 36 A failure to aver in bill not cured by a subsequent interrogatory 36 concerning Dower .'. 38-56 concerning Partition 56-71 concerning Sale and Lease of lands of persons under disability, 71-8, 548-9 concerning Discovery 79-86 coxiZtvD\a% Injunctions to Judgments 86-95 concerning Divorce g5 concerning Specific Performance , 104-109; lOI concerning Foreclosure of Mortgages loi concerning Enforcement of Judgment lien loi, 102 concerning Impeaching deed for fraud. 103 concerning Decedent's estates 103 contesting will admitted to probat 575" BILLS AND NOTES, 403 ani Burden of proof . BILLS OF DISCOVERY— Bills of discovery should be filed as soon as party ascertains necessity of discovery 83, 84 , consequence of not filing it in due time 84 , what must be stated in the bill •. 84 , weight of answer to a pure bill of discovery, if introduced by plain- tiff 84 , bill of discovery where no action has been brought 84. , to sustain a demand which plaintiff is unable to prove at law 84 , as to recover slaves, names, sexes and residence unknown 85 , merely colorable allegations, &c., will not sustain the jurisdiction of the bill. Pankinvs. Bradford 85 , when, after discovery, court will go on and grant relief.! 8$ , case of Bakir vs. Morris, a suit maintained, though not instituted INDEX. — (Bonds.) xi until 28 years after right accrued 85, 86 , when defendant is protected from answering the bill, it calling for breach of professional confidence or subjecting him to penalties, &c., or for disclosures affecting a title of which he is the bona fide purchaser without notice 327, 328, 329 , form of bill of discovery ^ 79 , form of bill of discovery to aid in defence of action at law 81 , form of pleas to discovery 313, 316 BONDS — of commissioners of sale, necessary as protection to purchasers...556» Who may be sureties in bonds of commissioners to make sale 5S6k of purchasers 557 Injunction bonds, when to be given 586» Condition of bond on injunction to judgment 586«, S87« Condition of injunction bond broken by a dissolution of injunction in part 95 Recovery of damages if penalty of injunction bond too little 646 BURDEN OF PROOF 402,403,404, 405 , on the party sustaining the substantial affirmative 403» , in bankruptcy assignee attaching a deed a 406 , in decrees 406 , in bills and notes ^ 403 , in contesting accounts current 405 checks 404 , in judgment for purchase money 404 , in bonds given for purchase 404 , in purchasers insisting on sale under trust deed 404 , in attacking voluntary conveyances of a decedent 404 , in wills, 404, to prevent statute of limitations 403 , in slander 404 , in surcharging executors account 403 , in insisting on acknowledgement of assignor 403 , in insisting on assignment from a fiduciary 403 , when U. S. claim priority 4°S , in establishing collateral heirship, 40S , in claiming under marshal's deed 405 , in relying on outstanding title 405 , in averment of non-citizenship in U. S. Courts, on defendant to show non-citizenship 405 , in CEfees of trust, alleged, when deed absolute 405 , in cases of notice to purchaser , 406 , in stockholders 406 , in collector of customs 406 , In patents 4°^ , in violating tobacco tax law 4°^ , in seeking to reform an instrument 406 , in underwriter denying insurable interest.! 406 , in proving knowledge of fraud '. 4°^ , in servant using defective machinery 4°^ , in insurance cases 4°^ CAUSE, removed from one Circuit Court to another S92 CERTIORARI, bill of. .....8, 8« CESTUI QUE TRUST. See Parties to bills,' Trusts, Resulting Trusts, Mortgages and Trusts, and pp. 196, 19^, 213, 214, 215, 752. CHANCERY.' See yurUdiction, and pp. 178-181. CHARGING PART OF BILL, pp. 23, 24. CHILDREN. See Infants. xii INDEX. — {Class.) CLASS. See Creditors' Suits, and pp. 216, 217. Several captains permitted to unite in one bill to injoin sale of their vessels engaged in the oyster trade 217 CO-DEFENDANTS, decrees between 509 , an answer of a defendant referring to his co-defendant's answer, 423, 424 , may be witnesses for each other 455, 457 COLLATERAL, liability does not make one a necessary party to a suit... 218 COLLUSION, parties to suits because of. 217 COMBINATION AND CONFEDERACY, clause of in bill in equity 23 , when necessary in answer to deny combination charge , 349 COMMISSION, to take testimony not necessary in Virginia State Courts, when witness in the State , 468 , when in Va. S. Courts, commission is necessary 468-469 , when in U. S. Circuit Courts 484, 485, 486 , form of, in Va. S. Courts 491 , form of, in U. S. Circuit Courts 486 COMMISSIONS, of fiduciaries 547 COMMISSIONERS, or Masters, cause referred to 623 , proceedings before 624-636 , accounts and enquiries taken before 624 ,.notice of taking account, how served 624 , when want of notice cured 624, 625 , effect of publication of notice 625 , reference to master in U. S. Circuit Court must be presented to master before the next rule day .-... 625 , rule to speed before commissioner in Va. State Courts 625, 626 , rule on party to render account before 626 , process of contempt for failing to render account 626» , other loss on failure to attend 626, 627 , order of account to be executed by commissioners 627 , not appointed beyond the State to take account without consent.i... 627 , duty of commissioner on completing his report 627 , under general notice may take depositions 627 , may issue summons for witnesses in Va. State Courts 628. , in U. S. Circuit Courts obtain a Wank subpoena 628 >, how witness proceeded against if he fail to attend or to testify in U. S. C. Courts, and in Va. S. Courts ; 628 , how in U. S. Circuit Courts, parlies accounting before master must bring in account 628 , what proceeding before master 629 , account brought down to date of hearing before the master 629 , examination of party , 629, 630 , what commissioner is to return with his report 630, 631 , submission of point to the court 631 , in U. S. Circuit Courts, reference simply to affidavits, &c 631 , exceptions to report in Virginia State Courts 631, 633, 634, 635 , exceptioiis to report in United States Circuit Courts 632, 633 See Exceptions to reports. , recommitment of report , 635, 636 , confirmation of report in U. S. Circuit Courts, if report not ex- cepted to within one month from time of its being filed 632 COMMISSIONERS OF SALE— When sale ordered by two, sale by one ' irregular 554 , cannot be the sole surety on each other's bonds SS6» COMMITTEE OF LUNATICS, &c. See Idiots and Lunaticf. , when not entitled to commission 547 COMMONWEALTH— Claims' against , 688 INDEX. — {Confederacy Clause.) xiii CONFEDERACY CLAUSE. See Combination and Confederacy Clause, and p. 23. CONFESSED— Bills taken for .•..,.111, 140, 141- CONFESSION— Of decree in the clerk's office 6 , wten bill taken pro confesso in the U. S. Circuit Courts 140, 141 , when bill taken /»-c confesso in Va. State Courts in CONFIDENCE. See Professional confidence. CONFOUNDING DISTINCT MATTERS. See Demurred and pp. 183-188. CONTEMPT. See Process of Contempt. CONTRIBUTION, among sureties 201, 219, 220 , to costs in Creditors' suit , 689 COPARCENERS. See Partition. COPYRIGHT, injunction restraining infringement of. i 518 CORPORATION AGGREGATE, answers under its common seal not under oath 347 , weight of answer 402 , weight of answer if sworn to by an officer 348, 402 , when officers of corporation may be made parties to obtain dis- covery from , 19Z See Banking Associations and Corporations. COUNSEL AND.ATTORNEY, may bind clients by admissions k 425 , should sign pleadings in equity 383, 384 , certificate of, to demurrer or plea in U. S. Circuit Courts 171, 384 COURT DOCKET 480 COVERTURE, plea of 280, 283 CREDITORS, intervening 687 ,. coming in by petition to a suit attacking a deed on ground of fraud 687, 688 CREDITORS' SUITS, when instituted 14 , form of bill 103, 104, 2on , memorandum in 2» , statute of limitations ceases to run against all debts from time of decree ; 528 , petition in creditor's suits 689 . Parties to suits by creditors for settlement and administration of estates 200, 216, 687, 689 When creditor may bring bill against executor or administrator, for discovery of assets 200 Several creditors may unite in one bill 216 Upon bill by a creditor of decedent in behalf of himself and others opportunity should be given to other creditors to come in 689 , how creditor is let in and on what terms 689 , creditors may intervene in suit of legatees surcharging administra- tion account 687 , creditors may come in by petition in suit attacking a conveyance for fraud 687 , bill by creditor against legatees for assets received 200 When in bill by creditors to subject to the payment of their debts a fund in the hands of a trustee, legatees not necessary parties 201 Residuary legatees not necessary parties to a creditor's suit 201 , creditor seeking to subject land sold bona fide must, if the pur- chaser dies, make his heirs-at-law parties , 201 , when, in suit against executor and legatees, decree against executor personally 202 Suit of judgment creditor against executors and devisees 201 Suit to charge heirs on a bond of intestate, administrator a necessary xiv INDEX. — {^Oross Bill.) party 202 When to suit by residuary legatees specific legatees must be made parties '. 201 In suit against sureties of an executrix, all should be parties 201 In suit concerning construction of will, all having even a color of interest in the estate necessary parties 202 When assignee of legacies a necessary party to a bill by residuary legatee against administrator 202 In a bill to marshal assets, all the creditors should be parties, and the heirs and devisees 203 One suit by all the legatees to enforce a decree in their favour 203 CROSS BILL, sometimes necessary 382 , form of ..•.• ;— :• '°3 , defendant in cross bill not required to answer until original biU is answered 678 , when this rule is changed 678 , sometimes answer treated as a cross bill 675 , sometimes a petition treated as a cross bill 675, 676 , hearing of cross suit with original suit •. 502 , when original suit not delayed for maturing of cross suit 502 Nature of cross-bill 674 Party cannot question in cross-bill what he has admitted in answer, 677 Extent of matter which may be inserted in cross-bill 677 As to stage of cause in which cross-bill is filed 679 When filed after original cause is ready for hearing '. 679 When crossbill will be directed at the hearing... 679 It may be directed after interlocutory decree 679 Hearing of original and cross-bill 679 General rule that both causes should be heard together 502 But court has discretion 5°^ When hearing of original bill will not be delayed for cross bill..5oz, 679 When plaintiff in cross bill has been guilty of delay 502, 679 When court of chancery has acted on orignal bill, presumption that it did right 502 CURATOR, may be sued by an administrator de bonis non 749 DEATH OF PARTY— when abatement ensues, 664 , how suit dismissed if not revived after a rule to speed S93> 594 , when scirefacias necessary 126 , when suit may be revived on motion .' 126 , in United States Circuit Courts, bill of revivor necessary to revive, 125. IS9 DEBTOR TO DEBTOR. See Parties to bills aaA p. 211 . DEBTOR. See Insolvents and p. 215. DE BENE ESSE — Depositions, in United States Circuit Courts.. .....465, 467 DECEDENT'S ESTATES. See Assets, Creditors' Suits and pp. 197-203, 220 What a creditor of decedent, attacking a voluntary conveyance, must shew 404« DECREES— Z)e/?«^(/. 504 , when interlocutory and when final, S05. 5°^, 507 , directing issues out of chancery 507 , referring accounts to a commissioner 508 , between codefendants 509 , date and title of. 510 , recitals in 5"^ , recitals in, in U. S. Circuit Courts 510 , ordering part., 511 INDEX. — {Decrees.) xv , declaratory part 511 , mode of entering decrees in English Courts 512 , mode of entering, in U. S. Circuit Courts 513 , mode of entering, in Va. State Courts 513 , when and how corrected, in Va. State Courts... 514 , how corrected in U. S. Circuit Courts 516 , when enrolled in U. S. Circuit Courts 516 , rehearing of. , 516 , rehearing at instance of infant, absent or unknown defendants 517 , forms of. 518-602 , for account in U. S. Circuit Courts 518 , granting injunction in copyright case 518 , granting injunction in patent case 519 , general formula in Va. State Courts .., 519 , introduction to in friendly suit 519 , introduction to, when absent or unknown defendants 520 , introduction to, on bill taken for confessed, answers, &c 520 Revival of suit against personal representatives, and decree 520 Conclusion of decree directing account 521 Direction of . publication in lieu of personal service 521 Decree directing sale of lands 521—2 Decree confirming a report of sale 522 Clause in decree directing deed to purchaser 522 Decree as to instalments of. purchase money 523 Decrees for accounts , 523-547 Decree for settlement of accounts 524 Decree for settlement of administration and guardianship accounts... 5 24-5 Decree overruling some exceptions to report and sustaining others, and decreeing balances to be paid 525 Decree for settlement of executorial or administration accounts. ..526, 527 Decree for distribution of estate 527 Decree for an account with special direction as to certain items 527-8 Practical notes to decrees for accounts 528—547 Accounts generally 528-531 Accounts of executor and administor 531-537 Interest in executors and administrators accounts 537-9 Accounts of guardians 539-42 Trustees accounts 543 Commissioner's report 543-6 Commissions of fiduciaries 547 Decrees for sale of infants^ lands, dr'c 54^ Entry in court on filing bill 55° Decree confirming report of commissioner, and directing sale 554 Decree confirming report of sale 557 Rule on one of the purchasers 55^1 559 Entry of answer and return to the rule, and exceptions to report 559 Decree that purchaser pay or be attached [or, that property be resold at his risk and costs] 559, 560, 561, 562 Decree of Court of Appeals confirming decree 5^5 Entry in Circuit Court on receiving decree of Court of Appeals 565-6 Order to permit guardian to expend part of the principal of the realty in support of infant, &c., and to lend out money 567 Decree directing infant on arrival at age to receive bonds of pur- chasers 57° Final decree, confirming report of commissioner as to deeds to pur- chasers, and directing moneys to be paid to the infant who had reached full age 57^ xvi INDEX. — (Decrees.) Decrees concerning partition .57l"S75 Decree directing commissioners to allot and apportion shares 57' Commissioners reporting land indivisible, report confirmed and sale ordered 57^ Commissioners reporting a partition, decree confirming commission- ers' report and directing conveyances 573 Order referring cause to one of the commissioners of the court to enquire vfhether property can be divided in kind, &c 574 Practical notes to decrees concerning partition 575 Decrees concerning wills „ 57S-577 Decree construing will ■• 575 Decree directing issue devisavit vel non 575 Practical notes to decrees construing vfills 576, 577 Decrees concerning dower S77~579 Decree to assign dovrer 577 Decree commuting dovper .577. 57^ Practical notes to decrees concerning dowrer , 578, 579. Decrees for foreclosure of mortgage,..,. 579~S84 Decree for foreclosure of mortgage and sale of property 579 Report of sale made and confirmed, and decree for conveyance 580 Decree for payment to plaintiff of proceeds of sale in satisfaction of his debt, and directing defendant to check for residue. 581 Decree for account under bill for eqiiity of redemption. ' 581 Decree requiring plaintiff to pay amount found by commissioner's report, and in default, a sale of mortgaged premises 582 Practical notes to decrees for foreclosure of mortgages 583 Decrees for divorce : 5^41 5^5 Decree for divorce a mensa et toro, for abandonment... 584 Decree for divorce and alimony 5^4 Decree for divorce a vinculo, for abandonment five years 585 Decree for same, there having been a previous decree for divorce a mensa et toro 5^5 Order for payment to plaintiff pending suit 585 Decrees concerning Injunctions 586-590 Order of injunction restraining waste 5^^ Order of injunction to judgment 586 Order dissolving injunction on motion 5^7 Order disssolving injunction and dismissing bill 587 Order continiiing injunction on terms 588 Order continuing injunction without adjudicating principles of the cause 1 i 5^^ Order perpetuating injunction 5^^ Order on injunction to a judgment, decreeing against plaintiff a sum of money in addition to the judgment 5^^ Dismission of bill after dissolution of injunction ; 5^9 Order of injunction as to poor debtor's exemption .-.. 589 Practical notes to decrees concerning injunctions 589 Decrees for specific performance 590-592 Decree for specific performance in suit by vendee against vendor. 590 Decree in suit by assignor of vendor against vendor and vendee for specific performance ., 590, 59' Practical notes to decrees for specific performance 591, 592 Miscellaneous orders and decrees..- ., 592-r6o2 Order of removal of cause from one court to another....; 592 Order changing plaintiffs to make them' witnesses 593 Defendant's death suggested, and rule to speed , 593 Order dismissing bill, plaintiff failing to mature his suit 593 INDEX. — {Decrees Nisi.) xvii Order directing, under seven years' law, suit to be struck from the docket 594 Order appointing guardian ad litem 594 Rule to speed 594 Rule for security for costs 594 Order removing cause to U. S. Court 595 Order allowing creditor to be admitted a party plaintiff. 595 Order changing next friend to make him a witness 595 Order for party to pay money into court 596 Orders relating to answers 59^> 597 Order referring answer to commissioner to expunge scandalous matter, 596 Last order set aside, and commissioner directed to report scandalous matter ; 596 Exceptions to answer sustained 59^ Answer and exceptions referred to a commissioner , 597 Report oV commissioner confirmed and answer adjudged insufficient, 597 Defendant ordered to be brought into court to answer interrogatories, 597 Process of contempt to compel an answer, 597, 598, 599. See Pro- cess of contempt. Process of contempt to compel obedience to decrees 600 Rule for attachment against purchaser 600 Attachment made absolute 600 See Process of contempt. Order granting leave to re-examine witnesses 601 Demurrer to bill adjudged good, and bill dismissed 60I Leave granted to amend bill...] 60I Motion to file a bill of review overruled 601 Order reviving cause by consent 602 Execution of decrees. See Execution, Fierifacias, Writ of Assist- ance. DECREES NISI — at rules in Virginia State Courts Ill, 127 , in the English Courts 508 DEEDS OF TRUST. See Trusts, Parties to Bills, ' and pp. 196, 197, 213, 214, 2l8 DEFECTS. See amendments of answers, amendment of bill, amendment of pleas. DEFENCES TO SUITS IN EQUITY— Demurrer 161-234 Plea , 234-323 Answer 3^3-398 Disclaimer 39^ When defences may be made 3^2> 3^3 After demurrer to whole bill overruled, defendant cannot plead or demur to part of bill, unless by leave of court 383 After answer, plea or demurrer not allowed 383 Demurrer in United States Circuit Courts 383 Signature of counsel to all pleadings 383, 384 What pleadings sworn to 3^4 What pleadings in writing 3^4 What pleadings made at rules 3^4 What pleadings made in term time 3^4 Cause set for hearing without replication to answer 385 Replication to answers 388 Replication nunc pro tunc 39'^ What general replication denies 390 General replication admits sufficiency of answer 390 Exceptions to answers 393 Plaintiff amending his bill in reply to matters in answer 394 C xviii iiAD^^.-^{Defendants.) DEFENDANTS. See Infant defendanis, Insane defendants ; Process of Contempt. Setting cause for hearing by defendant, and when defendant entitled to have cause heard as to himself alone II4 Guardian ad litem to infant or insane defendant 114, 115 .Order of publication against absent or unknown defendants 115, 116 Personal service on defendants in lieu of order of publication....! 16, 117 Process of contempt against defendant to compel an answer 117 Order to bring in defendant to answer interrogatories n8 Death, marriage, or lunacy of defendants , 125, 126 Defendant becoming insane or convict of felony 126, 127 DELIVERY OF DEEDS. See Production, &=€., of documents. DEMURRER. Ground of defence when apparent on the bill 163 , defined 164 , admissions by demurrer 164, 165 , should not be too general 166 , for want of equity .166 , for defects in point of form 166 , for want of form in United States Courts 166 , for multifariousness 166, 167 , frame of 167 , sustained on different ground from that stated 16.7, 168 , in United States Courts, the certificate of counsel and affidavit of party necessary 168 , form of general demurrer 168, 169 , form of demurrer to discovery for want of affidavit 169, 170 , defective in relying on facts not stated in bill '. 170 , speaking demurrer 170 , rules of practice in United States Courts concerning demurrers, &c 171, 172 , Virginia statute concerning demurrers 172 , nine principal grounds of demurrer to bills for relief 172, 173 , seven principal grounds of demurrer to bills of discovery 175, 176 , because to answer would'subject to pains and penalties 177 , whether without demurring or pleading to jurisdiction defendant may insist at the hearing on the want of jurisdiction 177, 181 , how on demurrer, exhibits with bill considered 181 , when on demurrer bill dismissed because of rule of evidence ex- cluding parol testimony 181, 182 , may be good in part 182 , when after demurrer sustained, plaintiff permitted to amend bill 182 , vvhen decision on demurrer not a bar to a new suit, and when it is, 182 , second demurrer not permitted 182 , after demurrer overruled leave to file an answer 182, 183 , cdurse of proceedure on 232, 233 Forms of, for multifariousness 183, 184 , for multifariousness in bill of discovery 184 , for want of parties 188 , for want of parlies in the United States Courts 220 , to part of bill or part of the relief. 1.223, 224 , to bill for relief, plaintiff having no interest 224 , to bill for relief for want of privity 223 , to bill brought for part of matter only 225 , to bill of interpleader for want of affidavit. 226 , to bill of discovery in aid of court having power to compel it... 226, 227 , to bill of discovery, when discovery would subject to pains and penalties , 227, 228 INDEX. — (Deposit.) ' XIX , to discovery, defendant having no interest 228 , to discovery, for want of priority 228, 229 General formula of demurrer 229, 230 Brief form of .demurrer under Virginia Statute 233, 234 , of demurrer for misjoinder of plaimiflF. 230, 231 , of demurrer for misjoinder of defendant. 231, 232 , of demurrer to bill of discovery, plaintiff showing no title 234 DEPOSIT, certificate of. 556 DEPOSITIONS. See Evidence. . , in what stage of the cause they may be taken, 468 and note. , in Virginia State Courts when taken out of the State 468, 469 , in Virginia State Courts when taken in the State.; 468, 469 , in the United States Circuit Courts 464-467 , de bene esse in the United States Circuit Courts 467 , should be taken after reasonable notice 469, 483 , what is reasonable notice 469, 470 , commission to take depositions always necessary in United States Circuit Courts 464, 466 , when commission necessary in Virginia State Courts 469 , form of commission in Virginia State Courts 491, 492 , form of commission in United States Circftit Courts 486. , how depositions returned 493, 494 , when depositions may be taken in United States Circuit Courts 467 , when depositions may be taken in Virginia State Courts, 470.471.500, SOI' , depositions in cross cause 495 , who authorized to take depositions in Virginia State Courts 471, 472 , who authorized to take depositions in United States Circuit Courts, 46s, 467, 472-474 , demurrer to interrogatories by witness 494 , suppressing depositions 496, 497 , refusal to suppress for irregularity 497, 498 How witnesses summoned and compelled to attend 472, 473, 474, 475 How documents compelled to be produced 475, 476 How witness refusing to testify or to produce documents, committed to jail in Virginia States Courts, 476, 477, in United States Courts punished for disobedience 473 Who may administer oaths 472, 477 When objection of incompetency must be made, and how noted..477, 478 When, after objection, party objecting may cross-examine witness..., 477 When exception to be made for irregularity in taking depositions 478 Manner in which witness should depose , 479 Witness may be interviewed before examination 480 Interrogatories should be plain and pertinent , 480 Who may not, and who may ask leading questions 480, 481 Who may interrogate '. 481 Discrediting a witness 481, 482 How witness's testimony impeached as to handwriting 482 Forms of depositions in United States Circuit Courts ; interrogato- ries, notice, commission and depositions 484, 485, 486, 487, 488 Forms of depositions in Virginia State Courts; notice, depositions, &c 488,489,490, 491, 492 Exceptions to depositions 498 Re-examination of witnesses 499 When deposition after an interlocutory decree may be read... 471, 500, 501 DEVASTAVIT. -Suit in equity for devastavit 200 XX ' INDEX. — {Devisees.) How and against whom creditor may proceed in equity, White vs. Banister , 200 How, in same suit, sureties of executor may.be proceeded against, Clarke vs. Weib 200. All the sureties should be parties to a suit by legatees against execu- tive and sureties, Hutcherson vs. Pigg 201 DEVISEES. See Parties to suits. Administration. DILATWRY PLEAS. See oath to pleas required in United States Cir- cuit Courts on p. 171. See Pleas. DISABILITY OF PARTIES. See Infants, Married women. Idiots and lunatics. DISCLAIMER. When defendant may disclaim 378, 380, 398 Formal parts of disclaimer 380- After disclaimer, dismission of suit with costs 381 When disclaimer may be looked to after defendant struck from the cause..,.,., 381 Replication to disclaimer 381 By disclaiming, a defendant cannot deprive the plaintiff of his right to an answer 381 If defendant disclaim, and wish afterwards to get rid of its effect 381 Forms of disclaimer 381, 382; DISCOVERY. See Bills of discovery, and pp. 79-86. Form of bills of discovery 79, 81 Practical notes in bills of discovery 83-86 Demurrer to discovery , 175, 176, 177-181 Pleas to discovery 267, 268, 269, 313-316 Partits to bills of discovery ^ 192- A mere witness cannot in general be made defendant 192 Exception as to officers of a corporation 192, 193 DISMISSAL OF BILL OR SUIT, on demurrer because proof insufficient, 181 , on demurrer, because evidence to sustain the case inadmissible, 181, 182 , of suit for failing to file bill 6 , of suit when return of non-resident '. 6 , of suit for failure to prosecute no , of suit, term next after dissolution of injunction 589 , when plaintiff failing to mature his cause, it is dismissed 593 , when cause heard on bill and answer, without replication, the bill should not alwsCys be dismissed ; there should not be a dismission of the bill, if the pleadings disclose enough to put on the defend- ants the burden of showing the bona fides of a transfer of bonds by a trustee .'. 388» DISMISSION. Bill is not always dismissed when plaintiff's case not proved, court will sometimes afford opportunity to adduce farther evidence 495 , by plaintiff after decree for account should not be allowed, even though no report be made 529^ , of injunction bill after dissolution of injunction 589 DISSOLUTION OF INJUNCTION— after bill taken for confessed, mo- tion to dissolve because injunction improvidently awarded, not received 644 If sufficient equity not shown in bill defendant may apply imme- diately for dissolution 643, 64& No objection that defendant has not answered 643 Dissolution unless plaintiff comply with terms 644 Court may impose reasonable terms as condition of continuing in- junction 644 INDEX. — [Distributee and Distribution.) xxi , on failure to revive, dissolution when 644 Error to dissolve, if several complainants injoin separate judgments by one bill and some of them die, because suit not revived against survivors by a given time 644 Motion to dissolve will not be continued but for necessity 643 If motion on bill and answer, facts alleged in bill, &c., not denied in answer taken to be true 411, 412 When defendant says that he does not know the truth of allegation, not sufficient , 422 If motion on bill and answer, and the answer deny all equity, disso- lution of course at once 412 Objection of multifariousness will not avail on motion to dissolve.... 643 Dissolution on condition 645 , on condition that defendant tender or file in cause a deed with war- ranty 64s Damages on dissolution 646 Proceedings after dissolution and no appeal 589 Dismission of bill when and how entered 589 and n JDISTRIBUTEE AND DISTRIBUTION. Suit against distributee 200 ; bill by creditor against distributee who has received assets from personal representative 200 ; bill by personal representative against distributee, which represen- tative has claim against estate on a quantum meruit 536 Suits by distributees 532 ; suit by distributee against personal representative for distribution.. 532 ; in such suit settlement of accounts between testator and another person of whom defendant is also executor 532 ; private account of executor with estate may be adjusted in such suit 532 ; when account between administrator and distributee is strictly an account between debtor and creditor 537 ; on bill by one distributee though others are equally interested, yet if they be not parties, no decree can be pronounced for distribution among them 53' DISTRINGAS. See Process of Contempt and p. 125. Form of distringas.; 125 DIVORCE, pp. 98, 99, 100. Form of bill for divorce a vinculo and injunction 96 Decrees for divorce 584, 585 DOCUMENTS AND PAPERS 244, 245, 342, 349, 528 ; when not a sufficient excuse for non-production of, that they are in another's custody 349 ; when best to refer to them, though set out in hsec verba 343 DOWER— bill by widow for dower. 38, 39 , bill by widow for dower and to set aside arelease 40 , bill by widow for dower against alienee of former husband 39, 40 Practical notes on Bills for Dower 41-56 , decree directing assignment of dower 577 , decree directing commutation of dower 577 , cannot be commuted without consent 56«, 41 , rules andtable for commuting dower 578 , parties to suit concerning dower.... 41, 209 , plea to bill for dower 308 , plea of jointure to bill for dower 308 , parties to suit by widow 41 , gross sum in lieu of dower when given and allowed, 41, 55 and ». See p. 754. xxii INDEX. — (Dower.) , table showing value in such case 578- , extent of recovery in dower 41 , question in Tod vs. Baylor and Braxtonvs. Coleman, resolved by the Code i860, chap, no, sec. 11, by the Code 1873, chap. 106, sec 11; not the period of alienation but the period of the re- covery determines the widow's right 41, 42 Exception to the rule, allowing a purchaser from husband in his lifetime to pay to the widow interest from the commencement of her suit on one-third of the value at the husband's death deducting value of permanent improvements 43 Provisions of Code i860, ch. no (Code 1873, ch. io6) sees. 10, 12, 13, 14, as to recovery from husband by ejectment, growing crops, &c 42, •43^ Of what endowed. 44, 45,46, 47, 48, 49, 50 Provisions of Code i860, chap, no (Code 1873, chap. 106), sec- tions I, 2, 3 44 Widow dowable of a reversion, expectant on a term of years or other chattel interest, but not if expectant on an estate of free- hold 44. by statute, Code i860, ch. 116 (Code 1873, ch. 112), sec. i8, widow dowable of a joint tenancy 44, 45 Widow dowable of an estate in coparcenary .^ , 45 ; not dowable of an estate in land, purchased by the husband and immediately conveyed by him in trust to secure the purchase money ., 45 aliter, if other security be first given for purchase money, and 18 months after the purchase a trust deed is given 45, 45» ; but when cotemporaneous execution of conveyance in trust pre- vented, and afterwards it is executed in fulfilment of original con- tract of sale, the widow Bot dowable 4& Widow endowed of equitable estate 46 : exceptional case, Wheatlty vs. Calhoun 46, 47 Widow entitled in relief of her dower to' require debt for purchase money to be first paid from estate of the husband in hands of per- sonal representatives or in hands of his heirs.'. 47* ; but when purchase made, if there be a trust deed on the property and the amount of the debt secured by the deed retained out of the purchase money, the property purchased is subject to the trust deed, and the widow is not entitled to have it discharged by her husband's personal estate. (Daniel vs. LeitcK^.. 47 ■Widow's right of dower prior to a mechanic's lien, but subject to a trust deed in lage vs. Bossieux 147, 48, 48« What the value of the equity of redemption when the land has been mortgaged 47 Widow not endowed of partnership property as against creditors of the firm'. 48, 49. Widow endowed in rent from a lease-hold created by her husband and herself .„ 49. Widow endowed of equity of redemption 49 Widow endowed of land in Dismal Swamp Land Company ; entitled to one-third of the profits, i. e., arising from sale and working the timber upon it , ■..,.. 49, Widow may work mines on land already open, or sink new shafts into the same veins, but cannot open new mines '. 49 Widow not dowable of land given and that taken in exchange.... .49, 50 Widow of tenant in common only entitled to dower on the part as- signed her husband by partition 50 INDEX. — {Due Diligence.) xxiii Rehase of dower %0 Statutory provision. Code i860, ch. 121, (Code 1873, chap. 117), W 4, 7, as to acknowledgment of married women to bar dower, &c... ^O What will bar dower 50 , statutory provisions. Code i860, ch. 110 (Code 1873, ch. 106), sec- tions 4, 5, 6, 7 50 [Chap. 121 in section 7 above cited should read chap. 117] 50 , statute overturns decision in Higginbotham vs. CornweU, and de- clares that provision in will \s prima facie in lieu of dower 51 , quaere, whether provision in deed would bar right of dower in sub- sequently acquired property 51 ; Jones, &'c., vs. Hughes, 27 Grat. 560, arising since the stat. Code 1873, ch. 106, section 4, personal bequest construed not to be in lieu of dower ; 579 ; election to waive jointure and demand dower must be made in court, or by a writing acknowledged and proved 51 ; and within a specified time, one year ~SO,' 51 ; widow barred of dower may receive distributive share of personalty, 52 ; marriage articles of infant feme and husband may be enforced at suit of her children 52 ; distinction, where, articles not executed by married woman 52 lV/{at TUidow entitled to before dower assigned 52, 54 (Statutory provision Code i860, ch. 110, (Code 1873, ch. 106,) sec- tion 8 52, 53 , mansion house and curtilage 53 , and one-third of the other real estate ; 53 , whether rents and profit of the whole, or only of one-third, of the mansion house and plantation ; Grayson vs. Moncure, McReynolds vs. Courts 53, 54 How dower assigned. 54 , statutory provision, Code i860, chap, no, (Code 1873, ch. '°^>) ^^<^- tion 9 54 , widow not of right entitled to have mansion house assigned her as part of her dower 54 .assignment by heir 54 , assignment by order of County Court on motion, afterwards set aside by Chancellor ; and Chancellor's decision reversed in part, and other decree made by Court of Appeals 54> S5 , case of Raper vs. Saunders 55 How dower commuted , 55 , commutation of dower sometimes without consent of the heirs 55 , note of Wm. Green on commutation of dower 55, 56, 754 , case of Simmons \s.Lyle &= als., 27 Grat. 930 755 , commutation of dower 578 ■ , widow entitled to dower though claiming under a deed declared fraudulent 579 , devisee's widow entitled to dower 579 , decree assigning dower 577 , decree commuting dower 577 DUE DILIGENCE. In suit against a co-surety for contribution, if prin- cipal be not made a party, the plaintiff cannot have decree without showing due diligence against principal, or that he is insolvent, 203, 204 EASEMENT — Vendor covenanting that vendee shall enjoy a street adjoin- ing land sold, may be enjoined to open it. Brooke vs. Barton ; . Ipaeheartvs. Price 639 ELECTION of widow under will _„ 52, 51, 756 xxiv INDEX. — (Enrolment of Decree.) ENROLMENT OF DECREE— How decree enrolled in the English courts 512, 513 . , decree deemed enrolled here at the term at which it is made, Va. State Courts, p. 513; in U. S. Courts 516 ERRORS corrected in the same court; Va. State Courts 514, 515 ; corrected in the same court, U. S. Circuit Courts 515, 516 See Petition for Rehearing EQUITY OF REDEMPTION— parties to bill for redemption 193 Decrees allowing redemption 581, 582, 583 What time is usually allowed for payment of debt ; 582 Dower in equity of redemption 49 ESCHEATS AND FORFEITURES— petition for forfeited or escheated land, in what court 689 EVIDENCE IN SUITS IN EQUITY— of matters not noticed in the pleadings of no avail 325 , what, if any, general issue in equity '. 399 , general rules of equity evidence 400 Exceptions 400 I weight of an answer in equity 401 I weight of answer of corporation aggregate 402 , hwrden of proof in equity, 402. See Burden of Proof. , what is to be proved.... ^ 403 , matters judicially noticed. 406 , admissions 409 , admissions by agreement of parties 424, 425 , admissions in the forms of the 'pleadings by the plaintiff 409 , admissions by an infant plaintiff 410 , admission by failing to file a replication 410 , admissions in the forms of the pleadings by the defendant 410 , evidence on motion to dissolve an injunction 4^11 , on motion to dissolve, motion coming on on bill and answer 412 , effect of statements of bill as against an infant defendant 412 , effect of bill taken for confessed as to an adult defendant 413 , effect of bill taken for confessed against absent defendants 414 , answer read against a guardian...; 415 , answer of infant arriving at age and not amending his answer 415 , answer of infant arriving at age and unreasonably delaying a better defence 415 , admissions in answers of idiots , 416 , admissions in answer of a wife or husband 416 , effect of an answer on the trial of an issue out of chancery 417 , effect of answer as evidence in cases of usury 417 , effect of answer on motion for a receiver 418 , effect of answer, as evidence, on issue dewisomi ueZ non 419 , reading answer in support of plaintiff's case, when the whole must be read, when not 420, 421 , admissions in answers, dispensing with other proof 422 , answer of one defendant as evidence against another 422 I effect of answer referred to by codefendant in his answer- 423 , admissions by agreement, plenary or fo/rtial i 424 , admissions by agreement of parties 424 , objections to evidence waived 425 , clients bound by admissions of attorneys 425 , admissions may be without writing 425 , admissions in propositions of compromise 425 , extent of admission .'. 426 , admissions evading principles of the law not sanctioned 426 INDEX. — (Evidence in Suits in Equity.) xxv , documentary evidence 427, 428, 429 , best evidence must be produced 428 , hearsay evidence, exceptions to general rule 439, 440, 441, 442 , proof of handwriting. a... 442 , proof of handwriting by a comparison of hands 443 ^ when testimony of witnesses must betaken 445 , what witnesses are incompetent 445-447 , provisions of United States Statutes concerning competency of witnesses 447 , what witnesses are competent under United States Statutes, and under Virginia State Statutes 447-448 , doctrines concerning incompetency of viitn^sses prior to recent stat- utes.., 449-453, 454-461 , interested witnesses incompetent 449-453 _, parties incompetent .*. 452 , interest of witness equally balanced, witness competent 454 , rule in equity as to examining parties 455 , rule as to examining defendant 455 , plaintiff . incompetent, as witness for coplaintiff. 455 , whether defendant released by being examined as a witness by plaintiff 456 , sometimes, by consent, plaintiff examined as a witness 457 , codefendants witnesses for each other 457 , husband and wife incompetent witnesses for each other 457 , how competency of witnesses restored 458 , exceptions to the rule of interest disqualifying 459 , witness incompetent as to certain matters 'involving breach of pro- fessional confidence, &c 560 , whether witness competent for one purpose only 461 , competency of witnesses under Virginia Code 1873, and United States Statutes, sec. 858 461 , cases illustrating provisions of United States statute 461, 462 , cases under Virginia State statute 462 , whether trustee, &c., liable for costs a competent witness 463, 464 , mode of taking evidence in equity 464 ,viva voce testimony sometimes permitted 464 , usual practice in United States Circuit Courts , 464, 465 , acts of Congress concerning testimony 465 , depositions, de bene esse, in United States Courts 467 , three months allowed to take testimony in United States Courts.... 467 , mode of taking testimony in Virginia State Courts 468 , when depositions may be taken and how 468 , notice of taking depositions ;..■. 469 , insufficient notice 47° , depositions after appeal : 47° , new evidence after interlocutory decree 471, 500 , who authorized to take depositions in Virginia State Courts ."... 471 , who may administer oath, and how depositions Qertified 472, 477 , how witnesses summoned 472-Si 47S~476 , how productioii of documents compelled 475-476 , witness fined or attached 1 47^ , witness refusing to be sworn, &c., to be committed to jail 476 , when to make objection of incompetency of witness 477, 478 ., how objection noted 477 , when objection for irregularity in taking deposition 478 , manner in which witness should depose 479 , witness may be interviewed before examination 480 D xxvi INDEX. — {Examination of Party.) , interrogatories to be plain and pertinent 480 , who may, and who may not, ask leading questions 480, 481 , who may interrogate witness .' 481 ,-discrediting a witness 481 , forms of depositions in United Slates Circuit Courts 484 , oral examination by examiner 488. , forms of depositions in Virginia State Gowts, when taken in the Slate, and outside. '. 488-494 , demurrer to ioterrogatories by witness 494 , inspection (in aid of proof) by the court 494 , farther evidence 495 , deposition in a cross cause 495 , suppressing depositions 49& , suppressing scandalous matter in depositions 496 , whether for impertinence alone, depositions should.be referred 497 , rules of English courts concerning suppression of depositions 497 , refusal to suppress for irregularity 497 , refusal of witness to be cross-examined, not a ground for suppress- ing deposition ; what to be done 497 , if party refuse, under Virginia statute, his pleading, &c., to be struck out 448, 497 , whether death of witness before cross-examination will cause the deposition to be suppressed 498 , witness dying after leave to cross-examine 498 , exceptions to depositions 498. , re-examination of witnesses , 499 , when witness may be re-examined without special leave of the court 471W, 500 EXAMINATION OF PARTY-— on references to take and state an ac- count 6z8, 629 , to what extent disclosure may be required, and effect of answers given 630 , answers as much evidence for respondent as answer to bill 63a , no cross-examination by counsel of party examined 630 ; query how far these rules modified by recent statutes.. 630 , party, independently of provisions of recent statutes, could not give testimony in. his own-favour upon subjects distinct from those on which he is examined 630 , Templeman vs. Fauntleroy 630- , of defendant, effect of. 456, 457 EXAMINATION OF WITNESS. See Depositions and JEoidence, and pp. 480, 481, 482, 483, 494 , of defendant, effect of. ; 456, 457 , of party before commissioner , ■ 629. EXCEPTIONS TO ANSWERS— filed 112, 113, 393 , set down for argument 113, 114, 394 , mode of taking exceptions not the subject of appeal 395 , exceptions to be first decided 395 , exceptions if not well taken, when not regarded in appellate court, 396. , rules in United States Courts governing filing of exceptions 397 , mode of exceptions 397 , form of exceptions to answer 397 , what done when exceptions sustained 398. , exceptions to answer for insufficiency , 393 , exceptions for scandal or impertinenee , 393 EXCEPTIONS TO REPORTS— when made 631,634,633-635 , when deemed abandoned, Kee vS. Kee 544. INDEX. — {Exceptions.) xxvii EXCEPTIONS — after verdict on issue out of chancery 613, 614 , if court of law refuse to certify its opinion of verdict, application and refusal may be set forth in bill of exceptions 613, 614 See Issues oat of Ghanatry. , to answer. See answer. , to dy>osition. See Depositions. , to commissioner's report. See Commissioners. EXECUTION OF DECREE— as on a judgment 602 , in United States Circuit Courts for performance of specific act, 602, 603 , writ of assistance 603; 604, 605. , obedience in United States Courts enforced against, or in favor of, persons not parties to the cause 6o8- ; see Fierifadas, Writ of Assistance, Process of Contempt. EXECUTORS AND ADMINISTRATORS— their accounts S3I-S37 ,how surcharged 529, 534, 533 , burden of proof on surcharging ;...403»i, 532 , how interest charged against them 537-S39 , their commissions „ 547 , when necessary parties, see Parties to Bills and pp. 197-203, 218, 219, 220 , whether foreign executor can be sued, bringing property into this State 536 See Administration. EXPUNGING — impertinent or scandalous matter in bills 15 ,in answers 33S, 336, 337, 338' FEIGNED ISSUES. See Issues out of Chancery, and pp. 611-623. FEME COVERT. See Married Women, Husband and Wife, Dower, Divorce and Alimony. ' FIDUCIARIES — their commissions 535, 547 , good faith required of fiduciaries. iJosser vs. Depriest 534 iBeckwithys. Buler 531 ; Jennings ■vs. Jennings ; 54^ , greater latitude allowed in shewing errors in fiduciaries' accounts...26l7i FIERIFACIAS— on decrees for money 602 , form of, in United States Circuit Courts 605, , form of, in Virginia State Courts ; 607 FINAL DECREE— What is a final decree , 505 , cases on what are interlocutory and final decrees in Virginia State Courts and in United States Circuit Courts 506-508, 759 FORECLOSURE OF MORTGAGES ,..194-196, 579-584 ,Form of bill for 100, loi , form of decrees for 579> S^o, S^l I , decree over in U. S. Circuit Courts for any balance found due after applying proceeds of sale to debt 584 , Virginia practice to decree a sale of the premises mortgaged, giv- ing the defendant a day prior to sale to pay debt 58a , Parties to till for foreclosure I94. , usually su6acient to file bill in mortgagee's name against mort- gagor 194- .' though mortg^or be a trusteee, yet if cestuis be very numerous they need not be made parties 194 , on bill by endorser against drawer to foreclose mortgage for en- dorser's indemnity, if defence of usury be set up, plaintiff must make holder a party i I94> '95 , if both parties to mortgage of personalty be dead without assign- ing, bill must be filed by mortgagee's personal representative against xxviii INDEX. — {Foreign Attachment) mortgagor's 195 , if mortgage of land, mortgagor's devisee must be a party 195 , though devise was on condition vifhich plaintiff says has not been complied with 19S , in suit against devisees of morgagor his personal representative must be a party 195 , if devisee of mortgagor be dead, his heirs^ust be parties 195 , if devisee of mortgagor has sold, and purffhaser's executors are em- powered to sell; all the executors and purchasers from them must be parties 195 , all encumbrancers at commencement of suit should be parties, • otherwise their rights not affected 195 , consequence if foreclosure be decreed without making second mortgagee a party 195 , if mortgagor has assigned his whole interest, he need not be a party to assignee's bill 196 , otherwise if assignment of part only 196 , practical notes to decrees for foreclosure of mortgages 583, 584 , form of answer to a bill to foreclose a mortgage 361 FOREIGN ATTACHMENT 211 , parties to suit concerning 211 , to fuit against joint obligors, one a non-resident, the other a resi- of the State, both defendants should be joined 211 , when conimissioner should be made a party to a creditor's suit by foreign attachment 21 1 , if not made a party, a lis pendens of creditor's suit will not, in cer- tain cases, affect him 2ir , when an attaching creditor a necessary party to a bill tO'injoin the suit of a claimant to a bond which had been assigned by a forged endorsement 21 r FOREIGN PROBAT. See Executors and Administrators, and p. 536. FORFEITURES AND PENAIITIES. See Bill of Discovery, Pleas, and pp. 31S, 316. FORMER ADJUDICATION. See Pleas. FORMER SUIT DEPENDING. See Phas. FORMS OF ANSWERS. See Answers, and pp. 358-374. FORMS OF BILLS. See Bills, and , . pp. 38, s6, 71, S48, 79. 86, loi, 104, 57Sn FORMS OF PLEAS. See Pleas, and pp. 274-319. FORMS OF DEMURRERS. See Demurrers, and pp. 183, 184, 188, 220, 223-231, 233 FORMS OF DISCLAIMER. See Disclaimer, and pp. 381-382. FORMS OF DECREES. See Decrees, and pp. 518-602. FORMS OF PROCESS. See Suhpwna, Summons, Writ of Attachment, . Writ of Assistance, Sequestration, Distringas, Commission of Be- bellion, Scirefacias, Process of Contempt. FRAUD — when fraud charged must be specially denied in pl6a...248, 249, 300 , form of plea denying fraud 300 , bill impeaching deed for fraud 103 , bill to cancel a deed obtained by fraud 646 , bill to annul a contract for fraud 647 , plea denying fraud in obtaining release 299 , in guardian, and how treated, Jennings vs. Jennings 542 , ground of relief against judgment at law 92, 94 , in the settlement of accounts is sufficient to open the whole account, 261 , where one purchases with notice 311 , the taking a legal title to lands in which another has a prior equi- INDEX. — {General Issue.) xxix table right, after notice of such equity, amounts to a fraud 311 , a legal title thus obtained will not avail against him who has the equitable title .*. 311 , even where the whole purchase money is paid, it will not avail him to receive conveyance afterwards 311, 312 , his payment of part of purchase money does not constitute any lien on the land 311 , notice to husband not notice to wife 312 Parties to bills concerning frauds 192, 212 , who are sufficient parties, after grantor's death, to bill to set aside the conveyance as procured from him by fraud 192 , on bill by cestui que trust against fraudulent trustee the other cestuis must be made parties 192 , in suits to set aside conveyances for fraud 212, 213 , to a suit to set aside the transfer of bonds and conveyance of the distributive share in the personal and real estate of a father on the ground that they were made in anticipation of a judgment ex de- licto, the obligors of the bonds were necessary parties 213 GENERAL ISSUE, whether in court of equity, and what 399 GRANTOR AND GRANTEE. See Furchaser, Vendor and Vendee. GUARDIAN AD LITEM 114, 130, 148, 149,351, 552 , forwhom, and how, appointed in Va. State Courts 114 , for wiom, and how, appointed in United. S. Circuit Courts 148, 149 , when appointed in Va. State Courts 114 , when appointed in U. S. Circuit Courts , 149 , in Va. State Courts, compelled to act 130 , should be present at examination, or agree to interrogatories, in suits for sale of infants' lands , 552, 553 , error to decree against infant without a guardian ad litem 351 , answer of mother who was guardian for her infant child, and who answered as guardian treated as the answer of a guardian ad litem, 751 GUARDIAN. When answer read against guardian 415 Accounts of. 539-54* , should be kept separate from administration accounts 542 , principles on which accounts are settled .•. 540 , how to state account of one who is in name an executor, but in fact a guardian. Garret vs. Carr 539 , how to state account of one who is in name an executor, but in fact a. gaaxAi&n, Strother vs. Hull. 538 , Garrett -1%.' Carr, adopted in Code 1873, chap. 123 54a , interest on interest in Garrett vs. Carr 540 , held liable for uncollected debt 542 , disbursements against interest until interest exhausted, so long as guardianship continues , 540 , at termination of guardianship, account settled as debtor and creditor, 540 , reasonable time allowed guardian to invest ward's money. 540, 542 , from what time to be charged with interest 542 , when guardian excused from paying interest, Sayers v. Cassell 542 , guardian charged with compound interest and refused commissions, Jennings v. Jennings 542 , when infant children, wards, are not to be charged with expense of maintenance and education 540 , when guardian authorized in expending principal in permanent im- provements , 54°' , error to decree against guardian a gross sum, principal and interest, with interest from date of decree 541 XXX INDEX. — {Handwriting.) , allowed for support of wards, though he had promised not to charge, 541 , accounts of wards to be stated separately 54' , wards in a family, working as other childi%n, not allowed for their services 54' , expenditure of principal of ward's real estate, if previouth/ sanc- tioned by the court, allowed 54' , expenditure of principal of ward's personal estate allowed, whether sanctioned before or after the expenditure, by the court S41 Suits against guardians 541, 216 Suit against.guardian living out of State and his sureties 541 , creditor's right against guardian and sureties, though he has taken guardian's bond 54' , proof of guardianship required 541 , the lingering of the suit against guardian for 24 years, no bar to after suit against surety 541, 542 , sureties and guardian jointly sued 542 Suits by guwrdians 216, 220 Suits by guardians not authorized ; when suit must be in name of ward by his next friend... _ 216 , guardian may maintain a suit for partition 220 Farties to suits against guardians 216 , to a suit against heirs of guardian, his administrator, his surviving surety, and administrator of deceased surety to be parties 216 , in a suit against a guardian and his second set of sureties the first set not necessary parties 216 HANDWRITING. See Eoidence and pp. 442, 443, 444. , how handwriting usually proved..,.; 442 , what knowledge of, required 442, 443, 443n , whether handwriting can be proved by a comparison of hands, 443, 444 HEARING OF CAUSE — setting cause for hearing.... 113, 114, 141, 145, 39271 , when cause set for hearing on motion of defendant 392 , whether, after answer filed by leave of court, cause should be heard without plaintiff's consent until four months after 39271 , suit should be heard with others touching same matter 502 , as to cross causes, how heard ■. 502 , suit should be properly matured; if not, sometimes decree is re- versed, either a decree agdnst one of several defendants, or a dis- mission as to all 502, 503 , when hearing not delayed because of making a formal party who comes in and files his answer at once , 504 , examination of witnesses at the hearing 495 HEARSAY EVIDENCE— is generally inadmissible 439 , exceptions to general rule ■....„ -■439, 44°, 44' , when hearsay evidence admitted, and when not admitted, in Va. State Courts 441, 44171 , when admitted, and. when not admitted, in the United States Cir- cuit Courts 44IW, 44271 HEIR AND DEVISEE — suit against to subject lands descended or de- vised 197, 198 , when such lands previously sold under decree of U. S. Court to satisfy ancestor's debt 202, 203 , heirs of a wife necessary parties in Tazewell v.' Smith 207, 208 , see fi^eci/sc Performance, and pp. 210, 211. , in suif by heirs against trustees for an account of trust subject, who are proper parties 196 , assignment of dower by heir 54 INDEX. — {Historical Facts.) xxxi , right of heir to have mortgage redeemed by executor ; how he must proceed .■ 2lon , heir and devisee entitled to relief over and to indemnity from the personal assets 210 , if' mortgagor has devised, devisee or his heir must be party to a bill to foreclose 195 , on bill to subject land in hands of devisee of a joint and several obligor, no decree should be made unless the other obligor or his representatives be before the court 197, 198 , should be parties to bill to marshal assets and for administration.... 203 HISTORICAL FACTS ; affecting the vifhole people taken judicial notice of, 407 HUSBAND AND WIFE. See Divorce, Alimony, Dower. , bill by husband of legatee against executor 100 , how process against husband and wife served yn, , when wife may answer separately 352, 353 , when next friend appointed for wife answering separately 352 , when wife defends by guardian ad litem 353 , when wife answers separately, the effect of her answer as evidence agajnst her ,. ■. 416 , when wife and husband answer separately, effect of husband's answer 416, 417 , husband and wife incompetent witnesses, for or against each other 457, 445 , this, after termination of marriage as well as before 44$ See Parties to Bills and pp. 206-209, 220. , Parties to suits concerning husband and wife 206-209, 220 , husband may sue wife or wife husband 206, 207 , wife sues by next friend for her separate property, her husband a defendant , 207 , wife may sue alone when husband is banished, or alien enemy, or has deserted his wife in a foreign country 207 , bill to recover wife's legacy should be in the names of husband and wife 207 , when in the event of wife's death her heirs should be made parties , 207-208 , in equity if wife's legal or equitable right appear against husband, court will ex officio protect it against his acts or admissions 208 , sufficient if such right clearly appear on the record, though it be not insisted on in the pleadings ; 20S , even in joint suit by husband and wife, his acts or admissions af- fecting her inheritance do not bind her , 208 , when presence of wife in suit not required, Woodson vs. Perkins.... 208 , husband's and wife's administrator suing in both characters in one suit 20S , wife sued alone, husband out of the country 208 ' whether, as to her separate property when husband in the country, the wife can be sued alone „ 209 , husband and wife plaintiffs and husband dies, when suit will pro- ceed in name of wife 207 , if feme sole plaintiff marry, how suit is proceeded in 126 , if feme sole defendant marry, a scirefacias issues^. , 126 IDIOTS AND LUNATICS— guardian ad litem may be appointed to de- fend them ; 209, 114 , answer of idiots, difference between it and answer of infant by guardian ad litem 4'^ ,parties to bills concerning 209 xxxii INDEX. — {Imbecility.) , committee of lunatic may file a bill to set aside an act done by him while lunatic 209. , lunatic may sue by his next friend 209 , lunatics may defend by their committee appointed their guardian ad litem 209 IMBECILITY 209, IMPEACHING JUDGMENT for fraud • 2S& IMPERTINENCE in answers, see Answers and pp. 335-338, 393. IMPLIED TRUSTS, see Resulting Trusts. '■ IMPROVEMENTS, compensation allowed for 70- INCUMBRANCER, when a necessary party to a suit by x. prior incum- brancer .>. 195 INDISPENSABLE PARTIES— Difference between proper parties and indispensable parties ; 728 INFANTS — When guardian of infant may sue for partition „ 220 Effect upon their rights of suits in their behalf , 41a See Guardian, Guardian ad litem. Memorandum of suit by infant by next friend 2 INFANT DEFENDANTS— defend by guardian ad litem 114 , how guardian ad litem appointed ; 114 , answer of, as evidence against, on arriving at age 415 , when may have cause re-heard 517 , in suits for sale of infant's lands infants usually made defendants, pp. 548, 549- , decree against infant erroneous unless guardian ad litem be ap- pointed 351, 352 , decree to sell infant's lands without the answer of a guardian ad litem 549 , when answer of infant defendants must be sworn to 352 INFANT'S LANDS— Proceedings for sale or lease of. 73, 548 , when a court will direct sale of infant's lands. 76, 77 , bill for sale of infant's lands 71, 548 , bill for lease of infant's lands 73. , complete record for sale of infant's lands 548-571 , decree for sale of. 554 See Infant defendants. INFORMATIONS— matter of 36, 37 . , form of 37 , filing of no , by the State or its officers in lieu of bills 36, 37^ , usually exhibited in the' name of the Attorney-General 36, 37 , of the relator in informations 37 , in England, in behalf of the crown 37 , how proceedings on abate 37 INFORMATION AND BELIEF— when defendant may answer simply averring his belief. 33J , when defendant bound to answer and state his information or be- lief, or state that he has no recollection or information, or that he cannot form any belief concerning it 333 INHABITANT. Return of "non-resident" on process, when it occasions dismission of suit 6 INJUNCTIONS— injunction to judgments, bills of.....~ 86-92 , practical notes on such bills 92-95, 589, 590 , to judgment dissolved in part, effect of injunction bond 95 , injunction to restrain erection of nuisance 102 , injunction to restrain infringement of copyright , 518 , injunction to restrain infringement of patent 519 INDEX. — {Insane Defendants.) xxxiii , bill for divorce, and injunction g& , prayer in bill for injunction, an account of partnership dealings, and receiver 64& , prayer for injunction, in bills to cancel a deed or annul a contract for fraud 646, 647 , wrho may grant injunctions 94. , bond required 94, 586» 58771 , wrhether on enjoining judgment, release of errors to be required, 92, 589, 590 , to vvtom order of injunction directed 95 , decrees in injunction cases 586-590 Practical notes to decrees in injunction suits 589, 590- , decree dissolving injunction 587 , decree perpetuating injunction 588 . ; , decree dismissing suit after injunction dissolved '. 589 »^ , when injunction granted 637-641, 92, 93, 94 , when injunctions refused 641-643, 92, 93, 94 , motion to dissolve before answer 411 , motion to dissolve after answer filed .....411, 412 , motions to dissolve before regular hearing 643 , dissolution of injunction 644 , other matters concerni'ng injunctions 644-646- , damages on dissolution of injunction 646 , when answer in injunction causes may be filed 112, Ii2re ,/orms of answer to' bill of injunction 365, 366, 371 , on motion to dissolve, effect of bill 411 , on motion to dissolve, effect of answer 412 INSANE DEFENDANTS. See Idiots and Lunatics. INSOLVENCY. See Parties to hills and pp. 215-218. INSOLVENT DEBTOR. See Parties to hills and pp. 215-218. INSTITUTION OF SUITS, in United States Circuit Courts always by filing of the bill 13S , in Virginia State Courts by a memorandum of the suit, or by filing bill or information I, 2 , by infants or married women, suits instituted by their next friend... 2 , information by the Attorney-General 36, 37 , forms of memoranda for institution of suits in Virginia State Courts, in ordinary suit ■. 2 , in suit by an infant or married woman 2 , in suit by creditors of a decedent 2 , in behalf of infants, effect of upon them 410 INSUFFICIENCY OF ANSWER. See Exceptions to answer, and pp. 393-399 INSURANCE COMPANIES, burden of proof on 4o6» INTEREST, in accounts of executors and administrators 537 , in accounts of guardians , 539~S42 , in accounts of trustees 54S , what is compound interest ' 5^9 INTEREST IN SUIT. See Agent, and p. 19, pp. II, 12, 13, 14, 15. , defendants must be shown to have , 12 , of defendants may be separate and distinct and conflicting 12, 13 , if one of the plaintiffs has no interest, demurrable 11 INTERPLEADER. Bill of 668^ , object of the bill 668 , plaintiff must be uncertain to whom the right belongs 668 , interpleader defined 1 668 , the plaintiff must have no personal interest in the controversy be- tween the parties 669. E xxxiv INDEX. — {Interrogatories.) , bill must relate to a thing inaction.: 669 , may be, though no legal proceedings actually commenced 669 , affidavit to bills of interpleader 670 , form of affidavit 102, 103 , prayer of bill of interpleader 670 , demurrer of defendant to bill 670 , demurrer of defendant to bill for want of affidavit.... 670 , answer to bill of interpleader 670 , as to the plaintiff in interpleader bill the suit may terminate, though continued betweeffthe defendants .*..... 671 , when plaintiff dismissed 671 , how long plaintiff a party to the suit 750 , what done if one of the defendants makes a claim against the plaintiff larger than he admits 671 , form of biHof interpleader 102 , bill in the nature of a bill of interpleader 672 , when plaintiff in bill has an interest, and there are other confficting rights between third persons „ 672 INTERROGATORIES— in bills 26, 27, 28 , to be propounded to witnesses 480, 484 See Evidence. , to be propounded to witnesses in proceedings to sell infants' lands.. 552 , when interrogatories in bills not founded on statements in the bills need not be answered 21, 36 , former rule in United States Circuit Courts as to answering inter- rogatories only which were numbered, &c 27, 718, 725, 726 , when defendant brought in to answer interrogatories in United States Courts 147 , when, in the Virginia State Courts 114, 117 , demurrer to 494 INTERVIEWING, witnesses before examination ; 480 INTRODUCTORY part, of decrees, when absent and unknown defen- dants, guardian ad litem assigned infant defendants, bill taken for confessed as to some and answers of other defendants 520 IRREGULARITY. Refusal to suppress evidence for. See Evidence and P- 497 ISSUE — taken on a plea 129 , and replication 148 , whether ageneral issue in equity 399 ISSUES OUT OF CHANCERY— feigned issues, how made up 6ir , tried in England before common law courts. 611 , so, in United States Circuit Courts 611 , courts of equity in Va. may try them 612 , no " feigned issues " strictly sft-called 612 , issues, in direct form, submitted to jury , 612 , issues tried as action at law usually tried 612 , Provisioii for reading of bill, &c., on the trial; other directions in reference to , 612 , genuineness of handwriting, disputed successfully, on. trial of issue, 612 , evidence, usually, viva voce 6-13 , improper testimony excluded by court trying 613 , certificate of verdict to Chancery Court, with special circumstances, 613 , court trying may certify its opinion to equity court 613 ,■ application for certificate, if denied, spread of record by bill of ex- ceptions..., 613 , when court trying not satisfied with the verdict so certifies, course of equity court 613 INDEX. — {Issues out of Chancery.) xxxv , chancellor may direct a new trial though no certificate 613 , whether equity court will infer that answer and depositions were the only evidence on the trial of the issue „....6i3» , if court trying be satisfied, and no exception, what done by equity court .6i3« , how certain bills of exception in Ford vs. ffardwcr were regarded.,.. 614 , if finding of jury not consistent with admission in an answer 614 , bills of exceptions for misdirection v^ill not lie 614 , yet bill taken where court refused to certify its opinion of verdict.™ 614 , and a bill so taken looked to in appellate court on appeal from de- cree 614 , and without bill or some certificate of the evidence offered, verdict would be held conclusive 614 , how verdicts on issues should be set aside, considered 6i4» , points involved on a trial of issue not regarded by U. S. Supreme Court, when not excepted to, and when (though excepted to) not passed on by Circuit Court 615 , weight of responsive answer, on trial of an issue ... 615 , when on trial of issue, depositions cannot be read 6l5» , effect on answer of proving defendant unworthy of credit 6l5» , what statements in bill, and in answer, are proof, on trial of issue..6l5» , plaintiff in issue may suffer a non-suit , 616 , application to court directing the issue for new trial 616 , and only to that court 616 , on trial of issue, same rules apply as on hearing of cause 6i6?i , when new trial of issue refused, and all the oral testimony certified. Court of Appeals will consider on the whole case, whether farther investigation necessary 6l6« , though a misdirection on the trial, if the verdict right on a consid- eration of all the evidence, motion for new trial should be refused. ..6i6« , issue tried, where distinctions between law and equity abolished, how regarded by U. S. Supreme Court 617 , when after three concurring verdicts, court confirms them 617 , when, after two, though the judges trying differ from the jury, chancellor not bound to grant new trial 617 , after ordering an issue, court may set order aside, or hear the cause without doing so , 617 , court, even after two verdicts for plaintiff, may in a clear case de- cide against him Sl^n , the chancellor satisfied with one verdict (though the judge trying certifies against it) and dismissed the bill, the evidence being cer- tified ; 6l7« , sometimes, action at law directed 618 , and when t '. 618 , how venue changed 618 , though originally agreed upon by the parties 61S , cases in which issues have been directed 618 , issues where testimony conflicting 620 , court not bound in all such cases to direct an issue 620 , Hardingys. Handy, issue unnecessary 621 , when the court ought not to direct an issue 621 , if issue improperly directed, order set aside in appellate court 621 , even when infants interested as complainants, bill in such cases dismissed 621 , when, though issue should not have been directed. Court of Ap- peals would remand the cause for farther proceedings 622 , issue should not be directed for simple failure to prove certain facts, 622 xxxvi INDEX. — {Joint Obligation.) , nor when answer responsive is not outweighed by the testimony.... 622: , nor in a case involving Confederate currency as a standard of value, 622 , nor, always, to ascertain a deficiency in land..... '. 622; , cases, some of these, more appropriately referred to a commissioner, 622. , form of order directing issue 623 , issue devisavit vel non 420, S7S-6- JOINT AND SEVERAL OBLIGATION. Who must be parties to bill in equity against devisees of joint and several obligor „...I97, 198- , Sureties in, all to be parties ; or a sufficient reason given for not uniting them., 201 JOINDER — in demurrer unnecessary 232W , demurrer set down for argument 232. JOINTURE. What jointure will bar the widow of dower. See Dower, and pp. 50, 51. , how it must be waived, if dower is claimed 52 , eviction of part entitles widow to be endowed of as much out of husband's other lands 50 JUDGMENT. Bills to enjoin judgments 86-95, See p. 589. Bill to enforce lien of judgment loi JUDGMENT CREDITORS— bills to enforce the lien of a judgment... loi, 201 , suing an estate of decedent 200, 201, 215, 216 , necessary parties to suits ■. 201, 215, 203, 216 , petition by , 685, 687, 688, 688«, 689 , may unite in a bill for the removal of impediments created by fraud of the debtor affecting them all 14 JUDGMENT DEBTORS— injunction by 86, 89, 589 JURISDICTION— clause in bills 24, 25 , whether if jurisdiction be not objected to in the pleadings, the court will at the hearing consider it 178, 179, 180, 181 , pleas to the jurisdiction .-. 252, 253 , forms of pleas to the jurisdiction 277, 278, 279 KIN, NEXT OF. See Award and p. 206. LACHES — for nine years did not deprive plaintiff under the circumstances of right to an account of a partnership 53a LAND. See Patent for land. LAPSE OF TIME. Whether it can be taken advantage of only by plea or answer 174" See Laches. LEASE OF INFANT'S LANDS— bill for by guardian 73 LEGACY. See Parties to suits and Legatees. LEGATEES— jkjVj against. , parties to suit in equity by creditor of testator 19/ , all the legatees should be made parties, and the executor also, \m- ' less he has settled his account and delivered the whole estate to the legatees 197 Suits by — suing without uniting other legatees 365 , parties to bill in equity by legatees for recovery of legacy 198 , if several pecuniary legacies given, each legatee may sue for his own without making the others parties 198 , but if fund for legacies prove deficient, all the legatees who are liable to abate must be made parties 19& , legatees against the personal representative of a sheriff, of his deputy and his official sureties 201 INDEX. — {Legatees.) xxxvii , suit by a legatee's husband against an executor icx> , in a suit by residuary legatees for distribution of the estate, specific legatees should be parties ; 201 , in suit by legatees against sureties of an executrix, all the sureties should be parties, &c 201 , a distributee permitted to sue an active administrator without suing the administratrix of the other administrator who had taken no part in the administration , 202 , to a suit by a distributee, for distribution, the other distributees should be parties 202 , when a will is to be construed, all persons interested in the re- siduum of the estate should be parties , 202 , a case in which all the legatees having obtained a decree may unite in one suit to enforce it 203 , it seems that the bill by a pecuniary legatee should be filed for him- self and such others as may choose to come in 198 ., legatee entitled to priority of payment need not make those who are interested in the residuum parties 198 , on bill not for certain pecuniary legacy, but a share of a subject to be divided among several, they must in general be all made par- ties 198 , as where one of several legatees sues for his share ig8 , but if will entitle children to shares of estate when they separate from the family, on bill by one after allotment to others, those alone who remain entitled need be made parties igS, 199 , if legatee die without receiving legacy, the suit for it should be brought by his personal representative 199 , children of legatee suing as such cannot in general maintain bill.... 199 , but if one of several children of an intestate die an infant, the others may recover the whole amount due from administrator, in- cluding share of deceased child 199 , legatees cannot sue executor de son tort without making adminis- trator (i^ bonis nana, party , 199 , if two executors have qualifiedandacted jointly, both must be sued, 199 , so if real estate is devised to be sold by executors, and proceeds divided, and two executors qualify and sell, a bill for share of pro- ceeds must be against both ., 199 , the other persons interested in proceeds must also be made parties, 200 , if executors die without paying over proceeds of land devised to be sold, their representatives maybe sued 200 , if executors never received the proceeds, bill may be against the purchasers 200 , testator's administrator de bonisnon need not be a party 200 , bill by creditor against legatees who have received assets from per- sonal representative 200, 201 , executor's assent to bequest of chattel, though it exempts from execution of judgment against executor, does not prevent creditor from bringing bill against legatee 200 , executor, or his representative, and the representative of the first decedent, should also be made parties 200 , all the legatees should be made parties and ratably decreed against 200, 201 , legatees not necessary parties in a suit by creditor of the decedent to subject a certain trust fund .'. 201 , a residuary legatee, not a necessary party with the executor in a bill filed by a creditor 201 , accounts of administration in which legatees are interested 536, 537 xxxviii INDEX, — {Letter Missive.) , after balance due from executor on general account of executorship is ascertained, account between executor and legatee is strictly an account between debtor and creditor S3T , but it is error to close the account as executor before the outstand- ing debts are ascertained 536. LETTER MISSIVE— to a peer, before subpoena 3 LIMITATIONS, STATUTE OF, plea of ; 256,320, 321 , when the statute begins to run in case of fraud or mistake 265, 26& , statute ceases to run, in a creditors' suit, against all debts from time of decree for account 528 , form of plea of 289, 290 , cannot be pleaded to a trust 2^6n , measure of strictness in plea required in equity 256 , may be relied on in plea, or by answer 339 , limitation of petition to rehear decree against absent defendant 517 LIS MOTA. Hearsay evidence made post litem motam is inadmissible evidence 440 , the lU mota is not limited to the institution of the suit, but extends to origin of the controversy 44a LUNATICS. See Idiots and Lunatics. MANDAMUS 706 MARRIAGE.' See Husband and Wife, Divorce and p. yi. MARRIED WOMAN-^answering separately, and defending separately, 352, 353. 3S4. 355 , answers separately by leave of court 352 , when sued by her husband 352 , only a substantial party from the time she answers separately 353 , wife of exile, or of one who has abjured the realm, may answer separately 353 , though husband not an exile, if out of the jurisdiction of the court and cannot be found, wife may be compelled to answer separately, 353 , of unsound mind may be defended by guardian ad litem 353 , if, under age, what method of defence to be adopted 354 , of full age, if answering separately, answers by her next friend 352 , may demur to a discovery which would subject her husband to crimii^al prosecution , 177" MASTERS OR COMMISSIONERS IN CHANCERV. See Commis- szo'itct's MATERIAL, ALLEGATIONS IN BILL. See Bills in Equity. MEMORANDUM OF SUIT. See Institution of Suits, and pp. 2, 3. MILL. Injunction granted to restrain erection of a dam, a nuisance to a mill 638 MINES. Widow is dowable of mines opened in her husband's Kfetime... 49 , she may open new shafts in such mines 49. MISJOINDER. See Pleas, MulHfariousness. MISTAKE, in stated accounts when corrected 261, 262 , award impeached on the ground of mistake, how such averment met, 264. See p. 303. , admissibility of parol evidence to show mistake in a deed 431, 432 , relief against a mistake in a writing 437, 438 , in the absence of fraud, accident or mistake, parol evidence is not admitted to vary the terms of a written contract 437" , a defendant showing fraud, mistake or surprise, making it inequit- able to decree specific performance of a contract, equity will not interpose to decree it 435, 43& MORTGAGES AND TRUSTS. ParHes to Bills concerning Mortgages INDEX. — [Mortgagee.) xxxix and Trusts, 196,213,214, 215. See Foreclosure of Mortgages. , if deed conveys grantor's whole estate, the trustees are the' proper parties to litigate any claim which he had to any kind of property, 196 , thus, they are proper and sufficient plaintiffs in bill to set aside a sale under execution against grantor, though made before the deed, 196 , on bill by grantor in trust deed for benefit of creditors against the trustee for an account, cestuis must be made parties 196 , on bill by heirs of grantor in trust deed against trustee for an ac- count, if deed convey personalty as well as realty, grantor's per- sonal representative must be made a party 196 , though a trust deed secure creditors in several classes one may sue for benefit of all 213 , and to such a bill all the creditors must be made parties 213, 214 , if bill to set aside a trust deed to secure a debt, assignee of debt a necessary party 214 , if bill to assail one of several debts secured by deed, all the credi- tors necessary parties 214 , if bill to set aside [fraudulent conveyance by an insolvent, trustee, cestuis que trust, sheriff and execution creditors necessary parties, 214 , in bill to recover property sold by trustee, and for an account, trus- tee a necessary party 214 . when, after confirmation of judicial sale, purchaser cannot object that a trustee was not a party - 214 , in case .of competing claims as to assignment of policy of insu- rance, all the claimants should be parties 214 , when creditor under trust deed a necessary party 214 , whether a cestui que trust can bring his suit against any one of certain trustees implicated in a breach of trust without making the others parties 215 , when trustees represent scheduled creditors and a suit against the trustees alone is sufficient , 215 See Resulting Trusts, and pp. 197, 752. Parties to bill for redemption of mortgage 193 , who parties to a bill for redemption after assignment by mortgagor or mortgagee 193 , or to bill of foreclosure after assignment by mortgagee 206 See Assignee. , effect of having power to sell contained in mortgage 7SIM , mortgagee cannot sell under such power without resorting to equity, T^ln , right of redemption in such a mortgage 7SI1 , bill for foreclosure of mortgage in United States Circuit Courts 100 , bill for foreclosure of mortgage in Va. State Courts lOI See Foreclosure of Mortgages and Redemption of Mortgages. MORTGAGEE. See Mortgages and Trusts. MOTIONS — of course, and special 680 , may be made by any of the parties or quasi parties 680, 681 , distinction between motions of course and special motions 681 , what relief granted on motion , 68l , a motion founded on notice setting forth grounds of rehearing treated as a petition for rehearing , 681 , decree amended on motion , 681 , under reservation in a decree 681, 682 , wife asserting her right to survivorship, &c., by motion 682 , motion to recover money paid under a reversed decree 682 , motion for introduction of new evidence 682, 500 , motion to introduce viva voce testimony 682 , motion for time to put in defence 682 xl INDEX. — {Multifariousness.) , when party in contempt must make a motion and how 682 , motion by sureties 683 , motion for injunction and reference 683 , motion for a rule denied and party required to file a supplemental bill 683 , other motions allowed 683, 684 , to dissolve injunction. See Injunctions. . . MULTIFARIOUSNJESS, what it is 12, 13, 14, 185 , equity, will not, in one suit, take cognizance of distinct claims of different persons 13 , several vendees of separate parcels of land cannot unite in bill against vendor 13 , complaint of violation of a copyright in which two plaintiffs are in- terested and of another in which only one has an interest, cannot be made in the same bill 13 , plaintiff not permitted to demand by one bill several matters of dif- ferent natures against several defendants I2« , bill not allowed against two executors to recover from the two a demand against decedent and from one a demand against him in his own right \2n So bill held bad against three coterminous tenants claiming sev- erally different parts of the land claimed by plaintiff. \yt , principle to be deduced from the cases I3« , multifariousness has no influence on motion to dissolve injunc- tion i2», i86 , it is good ground of demurrer I2« , and though bill not demurred to, may be dismissed at the hearing.. I2» , demurrer for multifariousness, form of. 1.84 , filing an answer said to be a waiver of the objection 185 , when demurrer sustained, and when not sustained 185, 186 , reason of the rule concerning multifariousness 186 , no general rule can be laid down defining it 186 , a court may, sua sponte, raise the objection .' 186 , in United States Courts, can only be insisted on by demurrer or ex- ception to the pleading and must be before answer 186 , an administrator of both husband and wife permitted to unite both capacities in one bill ^. 186 , several captains injoining the sale of their vessels, seized for failure to take out license, were permitted to unite in one bill to test the constitutionality of the act l85 , legatees obtaining a decree ascertaining their rights, permitted to sue together on the decree 186, 187 , not sufficient ground to reverse a decree, if not made in the court below 187 , to ascertain whether a bill is multifarious the stating part of the bill, not the prayer alone, must be looked to 187 , cases in which the bill was held not to be multifarious 187, 188 , several different underwriters not permitted to unite in one bill 188 , multifariousness and misjoinder distinguished 188 MULTIPLICITY OF SUITS. General principle that multiphcity of suits should be prevented 13 , who may join in bill in equity 13 , plaintiffs must have a common interest arising out of same transac- tion 13, 14 , creditors of decedent may unite in bill for account of assets 14 , judgment creditors may unite in one bill to remove impediments created by debtor's fraud 14 INDEX. — {Negative Pleas.) xli , who may be joined as defendants in equity ,.. I3«, 14 T^EGATIVE PLEAS. See Pleas and p. 237. l^EGLIGENCE, contributory 486 NEGOTIABLE INSTRUMENT. See Bills and Notes. a^EXT FRIEND— plaintiff; infant plaintiffs sue by their next friend 2 , married women sue by their next friend 2 , married women, if of full age, answering separately answer by their next friend 352 , difference between suing as next friend of an infant and next friend of a married woman 20» , bill cannot be brought in name of married woman without her con- sent 20« , if married woman bring a suit without a next friend the court will allow her to amend her bill by inserting a proper person as next friend 20« , name of next friend struck out as plaintiflF so that he may become a witness 456, 595 , liable for costs 456 , when substitution of a new next friend, security -for costs to be given ^ 456 , form of decree changing next friend(a) 595 , form of decree changing plaintiffs to make them witnesses... 593 ^EXT OF KIN — ^suing personal representative, bill by 100 NEW MATTER— introduced by amended bill 651-658 , introduced by supplemental bill 659-663 , when amendment not necessary to introduce it 66l NO INHABITANT. See Non-resident. NOMINAL PARTIES 728 NON-COMPOS. See Idiots and Lunatics. NON-RESIDENT— return of and its effect 6 See Absent Parties. JfON-SUIT — because plaintiff can suffer non-suit at law, equity court less inclined to grant a new trial for defect of testimony 92. 93 JSrOTARY PUBLIC— may take depositions both for the Virginia State Courts and for the United States Circuit Courts 471, 465 NOTES AND BILLS 4o3« JfOTICE — of taking depositions , 469 , what is reasonable notice 469, 470 , form of notice in United States Circuit Courts 485' , form of notice in Virginia State Courts 488 See Purchaser. See Advertisement. , to one of several joint purchasers not notice to the rest 312 , to a husband not notice to the wife, especially if the purchase money is paid out of her separate estate 312 NUISANCE. Bill to enjoin erection of a nuisance 102 , injunction to, in erecting a dam injuring a mill 638 NUMEROUS PARTIES. See Parties to Bills, when numerous, and p. 217. , when over thirty parties have been served with process, order of publication, in certain events 748« OATH, affirmation in lieu of oath 1 348, 348«, 302 , who may administer oath 465, 466, 471, 472, 477 , waiver of oath 384 (a) This form shoald have a provision for coste similar to that found in the form on p. 593. xlii INDEX. — {Officer Neglectiny Duty.) , waiver of oath in U. S. Circuit Courts ^2S■ , what defences made under oath 384, 256, 273, 274 , to obtain order of publication hSj 748- , to bill of injunction 89. , to bill of interpleader , 102, 103 OFFICER NEGLECTING DUTY. See Parties to Bills, and p. 212. ONUS PROBANDI. See Burden of Proof. ORDER OF VH'SU-CKTiaa, against absent or unknowndefendants 748K , how obtained 748> 'IS> ^^ . what it contains ; form of 116, 130, 131 , how and for what length of time published 116 , how posted 116 , against forties, when number served with process exceeds thirty 748® , effect of order of publication 116, 117 , no other publication afterwards as to any proceeding before com- missioner, or in court, or for taking depositions, unless specially ordered 1 16, 117 ORE TENUS. Examination of witness, on motion after notice at the hearing, in the Virginia State Courts.. 682, 683 , examination'of witness in the United States Circuit Courts. 464 ORIGINAL BILLS 10-3& Forms of , in suits for Dower. 38, 39, 40 , in suits for Partition 56-61 , in suits for sale of lands, &c fl, 54^ , in suits for leasing lands, &c 73 , bills of discovery ; 79> ^l , in injunctions tKi Judgments 86, 89 , in Divorce 96- , in Foreclosure suit 100, loi , in Specific performance „ lOI, 104 , to enforce lien of a Judgment loi , to enjoin erection of a nuisance 102 , bill of Interpleader... 102. , impeaching a deed for fraud....'. .- 103 , Creditor's bill 103 , contesting a wiV/ admitted to probat 575" , to cancel a deed obtained by fraud 646. , to annul a contract for fraud 647 , prayer in, seeking an account of partnership dealings, receiver and injunction 648 , by creditor against devisees in trust and executors of testator (Eng- lish form) 648 ORDER OF REFERENCE. See Commissioners. OUTSTANDING TITLE— Preferable right to call for legal title. See pp. 311, 312. PAIS, MATTERS IN— Plea of 296-313 PAROL EVIDENCE— When admitted to explain or alter written con- tract 430-438, 43i«-433«, 43S»-437 , admitted in Borst vs. Nalle to sustain resulting trusts ; 43S» , when not admitted 433«-43S«, 437«-'438« PARTIES to BILLS— demurrer for want of parties 188, 189, 220- , general rule that all persons interested must be made parties 191 , leave to amend in matter of parties „....'. 218 , parties to bills, in cases of Assignment. 204-206, 219 , parties to bill, in caseS of Award. 206, 21S , parties in suits concerning Banking Associations and Corpora- INDEX. — {Parties to Bills.) xliii ^ons 215, 216, 218 , parties by reason of Collusion. 217 , parties to bills of discovery 215 , parties in cases affecting /)«, 218, 220, 751 , parties in cases affecting Zferf3«i^ a»af Wife 206-209, 220, 750 , parties in cases concerning Idiots and Lunatics 209, 751 , parties in suits concerning Insolvent Debtors 215, 2j& , parties in suits concerning Mortgages 193, 194-196, 750 , when parties to bills Numerous 217 , parties to suits concerning Officers Neglecting Duty 212 , parties to bills concerning patent for' land. 212 , parties to bills concerning partition 220, 751 , parties to bills aSectmg partnership 203, 751 , parties to bills concerning purchasers from executors..,,. 219 , parties to bills concerning c/Hnct purchasers, 193, 751, 752. See Vendor and Vendee. , parties to bills concerning Wills 752 , parties to bills concerning U,nanls 752 , wheil remaindermen not necessary parties 217 , parties to bill of review 706' , parties to bills concerning specific performance 209 , parties to bills concerning suretyship 203, 752 , parties to bills concerning trusts 196, 197, 213, 214, 2l8, 752 , when parties to bills unknown 217 , parties to bills concerning vendor and vendee 193, 194, 213 , collateral liability not sufficient to make one a necessary party 218 , when widow and heirs necessary parties 219 , parties to bills as aflfected by the doctrine of representation..2l7, 5l8, 760 , pendente lite purchasers not necessary parties 218, 217 , guardian of infant may maintain bill for partition 220 , vphen treasurer of the State a proper party 220 , in United States Circuit Courts. See United States Circuit Courts and pp. 727-743. , demurrerihx want of parties 188, 189, I90, 220 , demurrer for misjoinder of parties , ■. 230, 231 , consequence oi making irpproper parties 221 , consequence of making improper parties as plaintiffs 222 , consequence of making improper parties as defendants 223. , consequence of omitting proper pjirties 223 , general rule that all persons interested must be made parties 191 , while the interests of the plaintiffs are to be similar, it is not so, as regards the defendants, theirs may be conflicting 12, 13. , leave to amend in matter of parties 652. , death, marriage or lunacy of parties 125 , alien enemy may be defendant 729, Absent and unknown persons, how proceeded against as parties iij xliv INDEX. — (Partition.) , personal service on non-resident defendants 117 , posting and publication of order of publication against absent de- fendants 116, 117 , right of absent parties to petition for rehearing S'7 , absent parties cannot appeal when they may petition for rehearing.. 6gl See Bepresentation. PARTITION. See Parties to bills, and pp. 61-71, 209, 220, 740, 756. , bill for partition 56 , bill for partition and account 58, 59 , bill for partition when some of the parties unknown 59 , practical notes to partition 61-71,575, 740, 756-758 , guardian of ward may file bill for partition ( 220 , surviving husband of one of the heirs a proper plaintiff in a par- tition suit 209 , who may sue for partition, and when 65, 66 , mode of partition 66-70 , owelty of partition 70 , partition of personalty 70 , partition of lands 62 , jurisdiction in equity 63 , commissioner in partition suit becoming the purchaser 756 , heir permitted to come into second partition, though refusing to come into the first 757 , when after land sold for partition, objection that partition could be made in kind, was not sustained 757 , when partition not to be made until certain contingencies had hap- pened as provided for by a will 757 , decrees for partition 57I~S7S , decree in partition suit not to be collaterally impeached 757 , rights of purchaser under ajudicial sale, in partition suit 758 PARTNERSHIP. See Parties to bills, and p. 203. , parties to suits concerning Partnership 203, 219, 740, 751 , in suit for settling partnership every partner should be a party 203 , necessity of reviving suit where surviving partner dies pending the suit 203 , in such case the creditor may unite as defendants with the adminis- trator and heirs of the surviving partner, the representatives of the deceased partner 203 , the heir as well as the executor of a surviving partner may be made a party 203 , assignee of a partner made a defendant together with his assignee in bankruptcy for settlement of partnership 219 , cases in United States Courts touching parties in partnership suits, 740 , decree for settlement of partnership accounts 524 , a widow is not endowed of partnership property as against the creditors of the firm, p. 48. , modern Eng. form of prayer in a bill seeking an account of part- nership dealings, p. 648. PATENT FOR LAND. See parties to bills, and p. 212. PATENT RIGHT. Injunction order restraining infringement of Patent right 518 , onus probandi 4o6n PAYMENT, order for payment to plaintiff pending suit 585 PEDIGREE — Hearsay evidence admissible 440 PENALTIES AND FORFEITURES. See Discovery, Answers, Pleas. PENALTY, and condition, of injunction bonds. See Injunctions. PENDENCY OF ANOTHER SUIT— Plea of. 285 INDEX. — {Pendente Lite Purchasers.) xlr , plea does not apply to a bill of discovery '. 25S PENDENTE LITE PURCHASERS not necessary parties 2x7, 21& PERFORMANCE. See Specific Performance. PERPETUATION OF TESTIMONY— Bill to perpetuate testimony..l02, 673. , substitute for bill in provisions of the Code of Virginia, p. 673. PERSON— P/^aj to the person .'. ......253-254. , forms of pleas to the person i 280-284. PERSONAL REPRESENTATIVE. See Executors and Administrators. , form of scirefacias against a personal representative 131, 132 PERSONS UNDER DISABILITY. See Infants, Married Women, Idiots and Lunatics, and p. 740. , proceedings for sale or lease of lands of persons under disability, 71, 548-571 , practical notes to bills for leasing and selling lands of persons un- . der disability 75 PERSONS OF A CLASS. See Parties to bills and p. 216. PERSONS BEYOND JURISDICTION. See Order of Publication and pp. 217, 730, 731. PETITIONS 685-692 , defined 685 , when relief by petition and when by bill 685, 686 , creditors let in by petitjpn 686, 689 , creditors intervene by petition in legatees' suit surcharging an ad- ministration account 687 , creditors coming in by petition into suit attacking a deed on ground of fraud 687, 688 , priorities determined by the date of filing petitions 68& , brevity and form in petitions 687 , should be signed by petitioner and his counsel 687 , sometimes treated as cross bills 687 , sometimes treated as bills of review 687 , for partition under statute, resulting in sale of infants' lands, 689 (see section 616 on p. 689 corrected on.page) 75' , on claims against Commonwealth 688 , for lands escheated 68^ , when by petition in the name of an assignor in a creditor's suit an assignee does not make himself a party 689 , order of publication on petitions 689, 690 Petitions for rehearing. 690-692, 741 , interlocutory decrees set aside on petitions for rehearing 690 , so with final decrees, until term is ended, in Virginia State Courts.. 690 , so with final decrees in United States Courts until the term next after the final decree is made is ended , 692 , rehearing, a matter of judicial discretion € , on rehearing, the cause only open as to those parts of it which are complained of in the petition 691 , petition for rehearing on the ground of newly discovered testi- mony 691 , absent defendant not served with process should petition for re- hearing of a final decree, should not appeal 691 , no statutory bar to a petition to rehear an interlocutory decree 691 , a notice of a motion to rehear stating the grounds of it, treated as a petition to rehear 691 , a bill of review treated as a petition to rehear 691 , rehearing at instance of infants or absent or unknown defendants... 692 , evidence on motion or petition to rehear 692, 471, 500 PLAINTIFF — in original bill not required to answer cross bill until xlvi INDEX. — (Pleas.) original bill is answered " 678 , how this right is lost by amending original bill 678 , consequence of making improper parties plaintiffs 222 , infant plaintiffs, 410. See Infants. , bill of discovery in aid of plaintiff at law 84 PLEAS. See /?uU to reply, and p. 320». , a defendant avails himself of objection not apparent on bill by plea, 234 , a special answer ■. 234 , certain objections only by plea or demurrer, e. g., to bill of revivor by person not entitled 23471 , reduces the cause, or some part of it, to a single point 235 , may consist of a variety of circumstances 235, 235n , setting up accord and lapse of time, bad for duplicity 235M , must be perfect in itself 236 , of a release, (charged in bill as obtained by misrepresentation) must deny the charges 236 , of matter apparent on face of bill, not generally good 236 , of matters not apparent on the bill, affirviative pleas 236 , affirmative plests must be proved 23771 , denying truth of some matter in bill, negative pleas, now held good, 237 , anomalous pleas, reasserting a fact sought to be impeached by bill, , 238. 238n , duplicity in pleas, pleas must reduce to single point 235m, 238/1 , leave granted, sometimes, to plead a double plea 23S, 239 , several, to different parts of bill 239 , that pl'tff is not heir, and Stat, of Limitations, pleaded together.... 239 , effect of Basset vs. Cunningham to permit double pleading 240 , should sometimes be supported by answer 240 , reason of the rule 240, 24171 , 32nd rule U. S. S. Ct. requires plea in such cases to be supported by answer , 242 , other rules in U. S. Courts concerning demurrers and pleas 171, 172 , may, in certain cases, be disproved by one witness 243 , sometimes supported by bill of plaintiff and documents filed 24371 , Mr. Hare's classification of pleas requiring support of answer..243, 243» , when pleas should be accompanied by answer as to deeds, &c 244 , when pleas should answer facts and also matters alleged as evidence of facts ". 244» , to a bill charging facts inconsistent with the plea and that the doc- uments are in possession of defendant, must be accompanied by a discovery of documents in defendant's possession 245 , in negative pleas to bill alleging documents in defendant's posses- sion, the defendant must make discovery 245 , when supported by an answer, the plea the defence, not the an- swer 24S , supported by an answer touching matters not charged in bill 246 , formerly, when overruled by answer 246 , not now overruled by answer 246 , of statute of limitations, when allowed to stand as part of the an- swer 247« , of matter arising after filing of the bill 247, 301 , must be to an issuable, not to an immaterial point 247 , must contain all matters to bring defence to a single point 248 , must cover effectually the parts of the bill they profess to meet 248 , must exclude intendments 248 , if they do not meet charges of fraud, court will intend such charges against the pleader 248, 248» INDEX. — (Pleas.) xlvii , must meet by averment charges of fraud and answer 249 , must be direct and positive 249 , fully and clearly denying, are sufficient 249« . when sufficient, to aver according to best knowledge and belief. 250 , may be to relief or discovery or both 250 , arrangement of pleas by Lord Redesdale 250 , arrangeinent of pleas by Mr. Beames 250, 251 , to the jurisdiction 252 , to the jurisdiction of a court of general jurisdiction should deny the jurisdiction and show how it is deprived of it 252 , whether more than one plea to jurisdiction in Virginia. ..252, 253, 253« , whether objection to jurisdiction must be raised by plea, &c., 177-181, 253 , to the person, division of. 253 J io the person, of plaintiff 253 , to person, of defendant 254 , a person under partial disabilities may plead it 254 , a person may plead, he is not the person alleged ; 254 , a person may plead, he does not sustain character alleged 254 , a person may plead, he is not sole heir, &c 254 , a person may plead, he has not such interest as makes him liable.... 254 , of disabilities of defendant in proceedings in rem 254» , of want of interest, when proper 254» , to the bill, another suit, or to frame of bill, 255 ^ to bill of discovery, of another suit pending, &c., not good 255 , to bill of discovery, multifariousness, parties not the same, matters in controversy too small 255 , in bar — statutes, matters of record or as of record, matters in pais..255-6 , statute of limitations, frauds and perjuries, usury 256 , of statute under oath« ; 256 , of statute of limitation, not to a trust ^ 256 , relying on statute of frauds, though parol agreement admitted 256» , of decree of foreclosure against a mortgagpr not ^ bar to bill by in- tervening incumbrancer 257 , of decree not final, not a bar 257 , of final decree, a bar 257 , of final decree, a bar, even though plaintiff an infant 257» , of final decree, a bar, eventhough no discussion of merits 257» , of decree obtained by mere default, whether a bar 257» , of former decree — plea must show that it was ad idem 257, 258 , of judgments at law > 258 , how pleas of judgments avoided by fraud, &c 258 , of stated account, that account was in writing, &c., not necessarily signed 259, 259^, 260 , " errors excepted" do not prevent its being a stated account 260 , of stated account, "areleaseof all demands, not under seal " 260 , of stated account — when delivery constitutes and when it does not constitute. 260, 26o« , of stated account, must aver that the account is just and true, vouchers delivered up 260, 261 , of stated account, must deny fraud, if charged, and support plea by answer 261, 297 , of stated account — fraud opening account, errors and mistakes cor- rected 261 , of stated account — burden of showing error on him who receives account withqut objection 261, 262 ;, but rule more indulgent when account of trustee, or guardian, or xlviii INDEX. — (Pleas.) solicitor 26i«- of stated account — account opened, errors of law corrected too 262: of stated account — account if opened, opened for both parties to show errors 262 of release — vfhen under seal. 262: of release — when not under seal, pleaded as a stated account 262 of release , 247, 298, 299, 300, 301 of release — must state consideration, and if consideration im- peached by bill, must be supported by averments in the plea 263. of award — either to relief or to discovery 263 of award — a covenant to submit disputes after arising to arbitration not a bar 302,303, 263, 264. of award — final agreement to submit to award, good 263», 264, of award — after bill filed, all the parties not parties to the award, the plea ordered to stand for an answer 263 of title — whether on long possession, will, conveyance or other- wise , 264 of title — must show a commencement anterior to plaintiffs 266 of title — exception purchase for valuable consideration without notice 267- of adverse possession 264, 265. of adverse possession, mere general allegation in bill of infancy, &c., will not invalidate the plea 265 of adverse possession, lapse of time raising presumption of ex- tinguishment of title 265, of adverse possession, statute begins to run from discovery of mis- take or fraud 265, 266 of adverse possession, when possession derivative 26^tt of will, when a good plea, when not 266- of conveyance 266- of purchase for valuable consideration without notice 267 to bills of discovery 267 to jurisdiction in bills of discovery 268 to person, in bills of discovery ; person of plaintiff; person of de- fendant a68 to person, in bills of discovery, denying interest, must be supported by answer 268. to the frame of bill of discovery, multifariousness, parties not same, &c 269^ to the frame of bill of discovery,, misjoinder, &c 270» in bar to bills of discovery, pains and penalties, confidence be- trayed, purchaser for value 269^ to bills of discovery, as stated by Lord Redesdale 269^, 270» to amended bills 270, 271 to supplemental bill 271 forms of. 271-319, title of plea 271 introduction to plea 271, 272: extent of. 272 should be signed by counsel 273 what pleas under oath 273, 274 general formula of plea 274, 275 certificate of counsel to plea in U. S. C. Courts 275 affidavit to plea in United' States C. Courts 275 form of plea to part of bill 276. form of joint, and of joint and several plea 277 form of plea to jurisdiction in Virginia State Courts..„. 277- INDEX. — {Plea to Discovery.) xlix , form of plea to jurisdiction in United States Circuit Courts..., 279 , form of plea of infancy of plaintiff 280 , form of plea that plaintiff is a married woman 280 , form of plea of bankruptcy of plaintiff 280 , form of plea that plaintiff was not heir to the person under whom he claims 282 , form of plea that plaintifif is an alien enemy. 282 , form of plea that plaintiff is not administrator 283 , form of plea that defendant is a married woman 283 , form of plea that defendant never was administrator 284 , form of plea of former suit depending 284 , form of plea of another suit depending as to part of matters 285 , form of plea of want of proper parties 286, 287 , form of plea to a bill of partition by a mortgagee 288 , form of plea of statute of limitations -. 289 , form of plea of statute of frauds 290 , form of plea of usury 290 , form of plea of decree as to part of case and answer, &c 292 , form of plea of former suit dismissed at the hearing 293 , form of plea of a judgment 295 , form of plea of stated account 296 , form of plea of release 298, 299, 300, 301 , form of plea of award 301 , form of plea of final agreement in bar of a suit 303 , form of plea of adversary possession 304 , form of plea of 40 years' possession without account 305, 307 , form of plea of will 307, 308 , form of plea to bill for dower 308 , form of plea of jointure to bill for dower 308 , forms of pleas of purchase for valuable consideration without notice, 309-311,312, 313 , form of plea to the jurisdiction on bill of discovery 313, 314 , form of plea to bill of discovery, because the discovery would violate professional confidence 314, 315 , form of plea that discovery will subject to pains and penalties..3i5, 316 , form of plea to part of bill followed by answer 316-319 See Proceedure on Pleas and pp. 319-323, 385, 386. , set down for argument Ill , issue taken on pleas in, 112 , form of rule filing 129 , when pleas overruled, what done 386 , when pleas sustained 386 PLEA TO DISCOVERY. See Discovery and p. 255. PLEA TO JURISDICTION— what it must show 252 , not more than one plea to the jurisdiction in United States Circuit Courts 252 , whether more than one permitted in Virginia State Courts 252, 253 , objections to jurisdiction how taken, when no plea 177-181, 253 PLEADINGS — what pleadings sworn to 384 , what in writing 384 POSSESSION, ADVERSARY. See Pleas and pp. 304, 305. PRACTICAL NOTES 41-55, 61-71 To forms of Bills for Dower, pp. 41-55. To Bills for Partition, pp. 61-71, 289. To Bills for the Leasing and Selling of lands of persons under Dis- ability, pp. 75-78. To BiUs for Discovery, pp. 83-86. G 1 INDEX. — {Practice.) To Bills of Injunction to Judgments, pp. 92-95. To Bills of Divorce, pp. 98-104. To Demurrers to Original Bills for Discovery 175-176. To Demurrers for Multifariousness 185-188 To Demurrers for Want of Parties 189-220, and 221-223 To form of Plea of Usury. 291 To form of Plea of Release 300-301 To form of Plea of Award 302-303 To form of Plea of Purchase for valuable consideration without notice, followed by an Answer in support of the Plea 311-312. To Plea that discovery will subject defendant to pains or penalties, p. 316. ^ To Evidence, pp. 493-494. To Decrees for Account, pp. 528-547. To Decrees for Partition, p. 575. To Decrees concerning Wills, pp. 576-577. To Decrees concerning Dower, pp. 578-579- To Decrees for Foreclosure of Mortgages, pp. 583, 584. To Decrees concerning Injunctions, p. 589. To Decrees for Specific Performance, pp. 591, 592. PRACTICE, rules of, in suits in equity adopted by the U. S. Supreme Court for the use of the U. S. Circuit Courts, pp. 713-726. PRAYER OF BILL, for special relief. 29. , for general relief. 29, 30 , in bills for relief, prayer for general relief should always be in- serted ; 28, 30 ; reason for its insertion , 30 PRAYER FOR PROCESS, in United States Circuit Courts 30, 108-109. , in Virginia State Courts 31 PRESUMPTIONS, 411. See Admissions. PRETENCES, charge of, in bills 23, 24, PRINCIPAL AND AGENT. See Agent. PRINCIPAL AND SURETY. See Parties to bills and pp. 203-204. , when equity will maintain suit in favor of one surety against a co- surety and the principal 203 , when to recover against a co-surety, due dirligence must be shown against the principal 203, 204. , when creditor a necessary party 204 , when sureties of a guardian on his first bond not necessary as parties to a suit against the guardian and the second set of sureties 204, , when purchasers participating in a devastavit of an executor may be sued with the executor by his sureties 204 PRIVATE ACTS may be given in evidence without pleading 409 PROBAT OF WILL. See Issues out of Chancery, Decrees concerning Wills and pp. 575, 577. , form of bill contesting a will admitted to probat 575" , proceeding to establish a will 577 PROCEDURE ON PLEAS— when plea set down for argument or issue taken on it 319 , when dismission of suit if plea be not set down for argu- ment, &c 319, 385 , when plea on argument sustained 320, 386. , when plea of statute of limitations ordered to stand for answer, &c 320, 321 , when, after plea of statute overruled, defendant not allowed to amend his answer ; 321, 323 , when issue taken on plea 389. INDEX. — {Process.) li , when plea found false 322 , when upon plea unsupported by evidence, plaintiff entitled imme- diately to decree 322 , when plea sustained by proof. 322, 386 , when plea sustained by bill of plaintiff and documents filed there- with 322, 323 PROCESS. See Summons, Subpoma, Writ of Sequestration, Writ of As- sistance, Process of Contempt, Scirefacias. , how process executed, on corporations 4 , how on husband and wife 3» , when affidavit of service necessary.- 4 PROCESS OF CONTEMPT— in Virginia State Courts 154 , in United States Circuit Courts 153 , to compel answer > 597, 598, 599 , to enforce obedience to decrees - 600 PRO CONFESSO. See Confession. PRODUCTION OF DOCUMENTS. See Documents. PROFESSIONAL CONFIDENCE— Plea that disclosure sought would violate professional confidence : 314, 315 PUBLIC OEFICERS. See Officer Neglecting Duty and p. 212. , when officers of a corporation made parties for purpose of dis- covery 192 PUBLICATION. See Order of Publication and p. 131. PURCHASE — To recover on bond given for purchase, must show delivery or tender 404% , plea of purchase for valuable consideration without notice 267, 312 , plea of purchase for valuable consideration without notice followed by an answer in support of the plea '. 309 PURCHASERS, VENDOR AND VENDEE, 193, 194, 213,217-219, 309-313 326, 327. Purchasers from executors when proper parties to a suit charging devastavit 219 , purchasers imder a trust deed should prove advertisement 404» ,pendenle lite purchasers 213, 217, 218 Purchasers for value without notice 267, 326», 327 Equitable owner must show notice to purchaser of his rights 4o6n Form of plea of Purchaser for value without notice 3°9-3'3 , whether purchaser for value without notice can insist on that de- fence and answer no farther 327 , when such purchaser may incorporate in his answer other circum- stances in aid of his defence 326ft Parties to bills concerning Purchasers, Vendor and Vendee, 193, 194, 213, 740, 743, 751 , when vendee should be made a party 193 , to subject land to a judgment the heirs of the purchaser, if he dies, are necessary parties 193 , when person relinquishing a collateral claim not a necessary party, 193 , when representatives of one of two vendees necessary parties 194 , when one of two vendors not a necessary party in a suit to enjoin a judgment on a purchase bond given to the odier 213 , in suit against a vendee to recover land improperly sold him, his vendor a necessary party 213 , before inquiry into the vahdity of a sale and conveyance of infants' lands, the purchaser must be a party 213 , when heirs of vendor necessary parties 213 PURCHASERS AT JUDICIAL SALES 752 , whether parties to the suit 752 lii INDEX. — (Beceiver.) , paying to a commissioner who has not given bond 752- , payment to two commissioners, when one of them had given bond and the other had not, sanctioned in Thompson & ah. vs. Brooke & ah., 6 Va. L. J.42 , 752 RECEIVER, effect of answer on motion for 418 , of partnership, prayed for 64S RECORD, simple forms of record ».. 743, 744. REFERENCE, plea that in article? of copartnership that there was an agreement to refer all matters to arbitration overruled 303 REFERENCE, should be made to deeds and documents in answer 343 REFERENCE TO A MASTER OR COMMISSIONER. See Commis- sioners, Decrees, and pp. 523, 524, 624. REJOINDER, to repKcaiions, out of use 393 RELEASE, fraud in, bill to set aside by a widow 40 Pleas of 298-301 RELIEF, prayers for, general and special 29, 30- REMAINDERMAN, when not a necessary party 217 REPLICATION, Special, out of use 388, 389 , how its place supplied by amendment of bill 389» , a replication, called Special in Mitford's Pleading, when used 388« , general replication 388 , effect of general replication -. 390 , replication nunc pro tunc 390 , form of general replication 391 , what deemed a sufficient replication ; 391 , in Va. State Courts, ore tenus 39i« , in U. S. C. C. in writing i 39i» , when replying to an answer waiver of exceptions 390, 392 , failing to file, in U. S. Circuit Courts 148, 392 , time allowed to file in Va. State Courts 392 , effect of failing to file, in Va. S. Courts 410 REPORT OF COMMISSIONER, exceptions to 631-633 , right to rehear as to and sustain exceptions, after report had been confirmed 760 See Commissioners. REPRESENTATION, doctrine of representation as affecting parties to bills 217, 218, 752, 760 REPRESENTATIVE,- PERSONAL. See Executors and Administrators. RESIDUARY LEGATEE. See Legatees. RESULTING TRUSTS. See Mortgages and Trusts, and pp. 193, 194, 752. Parties to suits concerning Resulting Trusts 197, 752 If bill show that complainant is a mere trustee, the cestui que trust is an indispensable party 197 On bill by cestui que trust against grantee of the land, if defendant die, suit must be revived against his heirs or devisees 197 A married woman, whose trustee has brought suit to defend her rights, is not a necessary party, full opportunity being afforded for her protection in the suit 218 RETURN OF SUMMONS— return of non-resident on writ of summons, effect of. , 6 , how return made on summons by an officer 3 , if summons served by other than an officer, an affidavit necessary.. 3 REVERSAL OF DECREE — order on motion to have money returned 682 REVIEW, BILL OF 102, 692-710, 758 , form of bill of review 102 , only lies to a final decree 692 INDEX. — {Beview, Bill of.) liii , after the term or enrolment the usual method of correcting a final decree by appeal (see pp. 692, 696) 693 , no part of the original proceedings 693 , if received before final decree, dismissed 693 , when bill in form a bill of review treated as petition for rehear- ing 693, 693?! , by whom bill of review may be filed 693, 694. , when the bill was treated as an original bill and not as a bill of .re- view 694 , how, in United States Circuit Courts, errors in point of form in bill of review reached 694 , bill of review will not lie to a decree passed by consent.; , 694 , causes for which bill maintained 694, 695 , for error of law apparent on the face of the decree 695 , for new matter discovered since the decree 695 , a bill wholly insufficient as a bill of review 69571 , allowing a bill of review for newly discovered evidence should be exercised cautiously, and only when indispensable to the justice of the case 695 , leave to file bill must be first obtained...., 695, 696, 696?}, 758 , when errors in a final decree may be reached without bill of re- view 696 , by a party who has- not appeared 696 , when his not appearing occasioned by a mistake or accident 696 , what is error on the face of a decree for which a bill of review will lie 697, 759 , what is not such error, Quarrier vs. Carter, Winston vs. Johnson, Barrett & Co. vs. Smith, Putnam vs. Day, and other cases.... 698, 699 , when bill cannot be maintained, Triplet vs. Wilson, Jones vs. Pit- cher, Franklin vs. Wilkinson, and other cases 699, 700 , Stockton vs. Cook, bill maintained 700, 701 , when bill of review founded on new evidence 701, 759 , cases in which bill rejected, and in which received..... 701, 702 , when, after affirmance of a decree by appellate court, there may still be a bill of review on the ground of new evidence 702, 703 , Pwrcell vs. Minor, apersistent suitor 7031 , rule in Roemer vs. Simon 704 , affidavit to bills of review 705 , limitation of bills of review 705, 706 , injunction awarded on 706 , on bill of review, setting aside a conveyance made under original decree lob , mandamus to compel obedience to appellate court decree by Cir- cuit Court 706 , parties to bill of review 706 , what statements the bill should make 706, 707, 759 , prayer of. 707 Defences to bills of reviep 707 , demurrer, or answer to 707 , answer to a bill of review founded solely on errors in law apparent in the proceedings and decree, cannot allege new matters of fact.. 70S , bills supplemental in the nature of bills of review 708, 709 , original bills in the nature of a bill of review 709 , when a petition in the nature of a bill of review does not prevent an appeal from original decree 709, 710 , appeal from decree on bill of review 710 After the term has expired, the only method of correcting a final liv INDEX. — [Bevival of Suit) decree at the instance of those who have appeared, is by bill of review, or by appeal (but see p. 692} 693 When errors in a final decree may be reached without bill of review, 696 REVIVAL OF SUIT. See Sdrefafias, Sevivor, and p. 520. REVIVOR, bill of, when ffled 663, 664 , process upon 664 , defence to, how made , 665 , form of 666 , entry reviving suit in U. S. C. Courts 159, 160 , substitute for bill of revivor 664 REVIVOR AND SUPPLEMENT, bill of. 664 RULES IN CLERKS' OFFICE S, 6, 110-137, 138-161 , when rules held 5> 6 , rule docket 134-137 , rule to file bill 6 , rule to plead .' Ill , form of rule to plead 128 , proceedings at rules in Va. State Courts 1-6, 110-137 , proceedings at rules in U. S. Circuit Courts 138-161 , proceedings after answer is filed 112, 1 13 , cause may be set for hearing as soon as replication ^led, or without replication 113 , exceptions filed, course of parties 113, 114, 393-398 If cause not set for hearing by plaintiff within four months, defendant may have it set for hearing, and heard, unless improper to decide on his interests separately 114 , quaere, whether if answer filed by leave of court, plaintiff has four months to reply before cause is set for hearing 392n , where no appearance by defendant m , defendant's appearance compelled by process of contempt. See Process of Contempt. Order of publication may be entered at rules 115, 748« , order to proceed in names of representatives of deceased parties may be entered at rules 125, 126, 127 RULES ENTERED IN COURT—Rule requiring security for costs by entry in court 594 , rule against purchaser at a judicial sale failing to comply with his purchase '. S58, 559 SALE OF LANDS, &c., of persons under disability 71-78, 548-57' Bill for sale of infant's lands by guardian 71, 548 Bill for lease of infant's lands by guardian 73 SATISFACTION. See Advancement, and p. 546. SCANDAL AND IMPERTINENCE, pp. 335, 338, S96. SCIREFACIAS, when issued 125, 126, 127 , form of scirefacias 131, 132 , order of revival at rules 125, 126, 127, 131; 137 See Bevivor. SETTLED ACCOUNT, plea of. 259, 260, 261, 296-7 , errors in 261 , difference between Settled Account and Stated Account 2591 SIGNATURE OF COUNSEL to pleadings 32 See Answer, Plea, Demurrer. SPEAKING DEMURRER 170 SHERIFFS. Suit in equity against sheriff administrator 201 In suit by legatees against personal representatives of sheriff, of his deputy and his official sureties, a decree against the sheriff 's sure- INDEX. — {Special Demurrer.) Iv ties was made without directing an account of the administration by the personal representatives of the sheriff, there having been a return of nulla bona testatoris on a fi. fa. issued upon a decree against the representatives of the sheriff and of the deputy 2or , nor was it necessary to make i&e heirs of the sheriff and of his deputy parties to ascertain whether any real estate descended to them 201 See Swnties. SPECIAL DEMURRER— whether used in U. S. Circuit Courts, see pp. i66, 167. SPECIAL INTERROGATORIES, use of them in bill and how far al- lowed 26-28 See p. 36. , an interrogatory not founded on a statement in the bill need not be answered 36 SPECIFIC PERFORMANCE. See Parties to Bills, and p. 209. Bill for in United States Circuit Courts 104-109 Bill for in Virginia State Courts 104 Parties to bill for specific execution 209, 210, 2H In suit by vendor against purchaser from vendee, such vendee or his representative should be a party 209, 210 , when administrator and heirs of vendee should be parties, and when administrator and heirs of vendor 2lo , on bill by assignee of Vendee against vendor, the vendee need not be party \ 211 , to a bill by vendor to compel specific performance, personal repre- sentative of the vendee a necessary party 210 , and if bill seeks to enforce the lien on the land itself, the heirs or devisees of vendee also necessary parties 210 , to a bill by vendee's heirs against vendor, the personal representa- tive of vendee a necessary party 210 , to a bill by personal representative of vendee, the heir or devisee of vendor a necessary party 210, 211 , a vendee, who has assigned a part interest in his contract to another, may in his own name alone sue the vendor for specific performance 211 , to a bill for specific performance against a husband for the sale Of an estate, wife not necessarily a proper party 211 , decrees for 590, 591 , in suit by vendee against vendor 590 , in suit by assignor of a note given for the purchase money against his assignor, the vendor and the vendee 591 , cases in which specific performance refused 591 , cases in which specific performance decreed 591 SPECIFIC LEGACY. See Legatee. STATED ACCOUNT. See Seitltd Account, and pp. 259, 260, 261, 296-7. , difference between Settled Account and Stated Account 259« , form of plea of Stated Account 296-7 , difference between Stated Account and Exparte Settlements of Ad- ministration Accounts before commissioners 533 STATING PART OF BILL, pp. 20-23. , forms of statements in bill for foreclosure of mortgage 22, 23 See Billi. STATUTES. ■ Amendments to the Code of 1873 in matters of equity prac- tice 7SI See Dower, PaHition, Divorce, Husbwnd and wife, Married Women. STATUTES, pleas of 256, 289-291 Ivi INDEX. — {Statute of Frauds.) See Statute of Frauds, Statute af. Limitations, Usfu/ry. , court takes judicial notice of publip statutes , 409 , private statutes must be given in evidence 409 STATUTE OF FRAUDS, plea of 290 STATUTE OF LIMITATIONS, plea of 291 STOCKHOLDERS. See Banking Associations and Corporations. SUBMISSION. See Arbitration and Award. SUBPCENA, form of— to answer bill in United. States Circuit Courts 152 , Jor witnesses, issued by clerk of United States Circuit Courts re- quiring attendance of witnesses before officer taking the testimony, 472 , clerk ordered by judge of United States Circuit Courts to issue sub- poena requiring witness to appear and bring books, documents, &c., 473 , witness not required to go out of his county nor more than forty miles from his place of residence to give his deposition ; nor is he required to attend unless his fee for going to and returning, and for one day's attendance, is paid (in U. S. C. C.) 473 SUITS IN EQUITY— Commencement of in Virginia State Courts i, 2 , dismission of, or abatement, at rules 6 , other proceedings at rules 6, no , filing of bill 1 10 , when set for hearing by defendant 114 , proceedings in United States Circuit Courts at rules 138-160 Defence to suits in equity 161-398 , defence by demurrer 161-234 , defence by plea 234-323 , defence by answer 323-398 , defence by disclaimer 398 Evidence in suits in equity 399-500 Decrees in suits in equity 501-602 Execution of decree...^. ,.,. , 602-608 Interlocutory matters 611-692 Issues out of chancery 611-623 Proceedings before . Masters or Commissioners 624-636 Injunctions .■ 637-651 Amended bills, supplemental bills and bills of revivor 651-667 Bills of interpleader, bills in the nature of bills of interpleader, bills to perpetuate testimony, bills to examine witness de bene esse, bills of discovery 668-673 Cross bills 674-679 Motions and petitions 680-692 Bill of review 692-710 SUMMONS, writ of. 2, 3 , how executed, 3, 4 , how executed on corporation 4, 5 , how executed in case of husband and wife 3re , how executed when defendant not found at home 4 SUPPLEMENTAL BILLS, pp. 8, 659-663, 665, 667. , what defects supplemental bills remedy. ....\ 659, 66ln , plaintiff cannot support a bad title by acquiring a good one after filing his original bill and bringing it forward by supplemental bill, 659 ', plaintiff not permitted in supplemental bill to introduce a com- pletely new case 659 , cases on this subject in Virginia State Courts 659, 660, 661 , when supplemental bill necessary 661 , when supplemental bill cannot be filed by an assignee, but an orig- inal bill in the nature of a supplemental bill 661, 662 , statements of a supplemental bill , 662 INDEX. — {Surcharge and Falsification.) Ivii , when supplemental bill niay be against a new party alone, without making original defendants parties to it 662 , the answer asked for in supplemental bill 662 , demurrer to, when no need for supplemental bill 661 , a defendant may sometimes file a supplemental bill 663 Rules of U. S. C. Courts in defence to supplemental bills 663: Form of supplemental bill 102, 667 , an original bill in the nature of a supplemental bill 661, 662 , importance of the distinction between a supplemental bill and an original bill in the nature of a supplemental bill 661, 662 SURCHARGE AND FALSIFICATION. See ,S«aied AccoMrai, and 533, 534, and Exscutors and Administrators. SURETYSHIP. See p, 203. Parties to suits growing out of suretyship 203. , when suit maintained in equity against co-surety and principal, though surety might have maintained an action at law against principal 203 , due diligence against the principal necessary to entitle a surety to a decree against his co-surety. ..1 203, 204 , when to bill by surety, creditor a necessary party 204 , when sureties on a first bond not necessary parties to a suit against the guardian and sureties on the last bond , 204 , when purchasers of assets committing a devastavit with the execu- tor parties to a suit by the sureties of the executor 204, 219 , surety purchasing up legacies at a discount can only charge his co- surety with his proportion of what was paid for the legacy and the expenses of purchase 219, 220. SUSPENSION OF DECREE, to allow time to take an appeal 561, 562 TAKING BILL FOR CONFESSED. See Confession. TENANT IN DOWER. See Dower. TESTIMONY. See Evidence, Depositions, Witness. TIME, LAPSE OF. See Laches, Statute of Limitations. TREASURER OF THE STATE— when a proper party 220- TRUSTEES. See Mortgages and Trusts, and ^Trusts, and pp. 196, 197. , their accounts 543, , their commissions 545. , how interest charged against them 543 , in what case trustees are sufficient plaintiffs in equity on bill to re- cover trust property, Carey v. Brown, Kerrison v. Stewart .. 742; TRUSTS. See Parties to Bills, and pp. 196, 197, 213, 214, 218. See Mortgages and Frusts, and Trustees. UNITED STATES — when they claim priority, burden of proof upon them to show that debtor has assigned his whole property 405?!. UNITED STATES CIRCUIT COURTS 138-160, 713-743 Proceedings at rules in 138- Mules of practice adopted by U. 8. Supreme Court for their govern- ment 713 Parties in the United States Circuit Courts 727 , general rule.... , 7^7 , dispensing with parties 727 Exceptions to general rule 7^7 , hearing in the absence of parties beyond the jurisdiction 727 , when party must be within jurisdiction or voluntarily appear to bind him personally 728 , formal parties 728. H Iviii INDEX. — {United States Circuit Courts.) proper, though not indispensable parties 7^^ indispensable parties T2fi parties beyond the jurisdiction 728 persons who should not be parties 7^9 numerous parties 7^9 cause retained in U. S. Court until the matter is litigated with per- sons not joined 729 who may unite in one bill 7^9 what are the rights of alien enemies made parties 729 want of proper parties > 7^9 non-joinder of parties will not oust the jurisdiction of the U. S. Courts 730 when objection for want of parties may be taken 730 Absent persons as parties 730, 731 parties in suits concerning Administration of estates 731, 732 who may appeal 733 parties in suits affecting Assignor and Assignee 733 parties in suits concerning Banking Associations and Corporations, 733 concerning Bankrupts 735 concerning Claimants under the same title 735 concerning Cities, Towns, &c 735 concerning Corporations 736 concerning Creditors' bills 73^ conoerning Debtor to Debtor 736 when parties under Disability 736 concerning Discovery 73^ concerning Disposition of Fund 736 concerning J^Vaud , - 73^ conctmmg Husband and Wife 737 concerning Injunctions 737 concerning Insolvents., 737 concerning Insurance 73^ concerning yoint Interests and Obligations 738 concerning Judgments 73^ concerning Lost Deeds , 73^ concerning Mortgages 738 concerning Nuisances ., 739 concerning Partition Suits 74° concerning Partnership 74° concerning Purchaser i 74^ concerning Purchaser pendente lite 740 cofoztrmrv^ Petitions for rehearing, &°« 74' concerning Religious. Associations 74' concerning .^