ilarHljaU lEquttg (KoUetttott dtft of !E. 31. MaraljaU. 2i-ffi. 1. 1394 CORNELL UNIVERSITY LIBRARY 924 085 501 272 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501272 THE ESSENTIALS OF EQUITY PLEADING AND PRACTICE STATE AND FEDERAL "WITH IIiLTISTKATIVE FORMS ABTD iNALTTICAIi TABLES AND INCLTJDIlf G FOEMS AND PEOCEDURE IN THE MASTER'S OFFICE. AI.SO THE EEFOEMS AND CHANGES EFFECTED BY THE UNITED STATES EaUITT RULES, IN FOHOB FEBRUARY 1, 181S. THIED EDITION. By GEORGE FRED RUSH OF THE CHICAGO BAR CHIOAGO CALLAGHAN AND COMPANY 1919 g^s^^j; Copyright 1919 by CALLAGHAN AND COMPANY PREFACE TO THIRD EDITION Besides the essential procedural steps and pleadings in the general chancery practice, state and federal, this edition also notes the numerous changes effected by the New Federal Equity Rules in force February 1, 1913. Where state statutes or court rules are silent, state courts usually follow the federal practice. Thus, the new federal rules will affect the state practice also, and it becomes important to understand these changes. In these few pages of text and forms, are gathered the fruits of nearly five hundred decisions. Profitable as the reading of cases always is, no student can be expected to study and digest so many actual cases in the time given to the subject, even in the best law schools. The reading of cases may well be supplemented by a concise text book explaining the successive proceed- ings and pleadings in a suit, so that what the student may not learn from the reading of cases, he will find in the text book. Fair and just procedural rules are an indispensable part of the administration of justice. Courts cannot transact business without such rules. Lawyers are sup- posed to be familiar with them. The large number of cases reversed for errors of procedure show that this branch of the law should receive a larger share of at- tention and study. It is hoped this book will aid towards a ready knowledge of the essentials. In the selection of essentials, in the new arrangement and analysis of these essentials, in the classifications and tables, the author hopes will be found a logical, concise and simple exposition of chancery procedure. The author's classification of parties is intended to simplify and reconcile all the numerous and confused terms found in the different cases and rules. The au- (m) IV PREFACE TO THIED EDITION thor's classification of defenses to actions, new and yet based on accepted classifications, is sufficient also for demurrers, pleas and answers. The student is thus encouraged to master a single classification which mil remain of lifelong practical service to him in his profes sion. The tables are intended to aid in reviewing and memorizing the text. The illustrative forms are care- fully selected to familiarize the student with the chief pleadings used in actual practice. In this third edition the text has been revised and the sequence of the chapters and subjects has been changed, so as to conform more strictly with the regular progress of a suit in chancery. The chapters on Parties, Stating Part of Bill, and Demurrers especially have been rewritten and revised. New paragraphs also are introduced in this third edition explaining the proper use of conclusions of fact in pleadings, and the improper use of conclusions of fact in testimony. These new paragraphs should clear the lawyer's mind of much confusion existing on this subject. It is explained also that a conclusion of law is the expression of a right or a duty which springs firom cert&in conclusions of fact. A conclusion of law is an entirely different thing from a conclusion of fact. The lawyer is thus enabled to avoid pleading conclu- sions of law and to avoid confusing them with con- clusions of fact. The latter he should fearlessly use in pleadings; and he should be able to destinguish them from conclusions of law, and to prevent judges from confusing them. Geobge Fbed Rush. Chicago, September, 1919. CONTENTS CHAPTER I nature of equity and common law jueisdiction ; staee decisis; case law and statute law. [references are to pages.] The andent rigidity of common law decisions, caused the invention of the equity court 1 Cases illustrate but do not absolutely make the com- mon law 2 Stare decisis; decisions contain authoritative ex- pressions upon the common and equity law .... 2 Source and basis of common law 4 Positive law 6 Nature and scope of statute law 6 Certain rights, antedate governments and constitu- tions, and constitute what might be called the prescriptive constitution 7 Only in the United States, through the separa .on and independence of the judio' d power, is law, justice, established as supreme and free 10 Decisions are based upon reasons, facts 11 "Case Law" 12 No case law in continental Europe 13 The equity court rescued the common law 14 Origin of the chancellor 15 Exclusive jurisdiction 15 Jurisdiction concurrent with common law 15 A^'xiliary jurisdiction 17 Incidental jurisdiction of equity courts to award the same relief as at Common Law 17 The territorial jurisdiction of a court of equity . . 17 (V) vi contents. [references are to pages.] Consequence of suing in the wrong court IH Administration of equity jurisdiction as a rule is distinct from common law jurisdiction, and equity pleading is distinct and different from pleadings at common law 18 Equity procedure differs from that of common law. 18 CHAPTER II PAHTIES Two Fundamental Principles which determine who should be made parties to a suit 20 Parties plaintiff 20 Parties defendant 21 Circumstances Under which the court can dispense with some parties, though they have an interest in the subject matter 21 Three degrees of dispensability by the court of parties , 1. Necessary and indispensable parties 2. Necessary but dispensable parties 3. Unnecessary but proper (or nominal or formal) parties 21 Parties in Equity, analysis chart 24 Creating, or dividing, interests to oust the jurisdic- tion 21 Parties who consent to a decree without being named as parties 25 Virtual representation of parties 25 Naming of parties as plaintiffs or defendants 25 Who are deemed parties 26 To obtain answer under oath, of corporation officer 26 Objection as to parties 26 Correcting defects as to parties 27 Partners should be named as individuals 28 Federal jurisdiction based on diverse citizenship . . 28 OONTBKTB. Vll [references are to pases.] Actions by idiots and lunatics 28 Infants, idiots and lunatics 28 CHAPTER in BIIiLS IN EQUITY The chief pleadings 30 Purposes of written pleadings 30 Elements of a cause of action in Equity 31 Eights always spring from facts, events 31 Events, facts, ultimate facts 31 Definite pleadings required in equity 32 BiU, petition, information 32 When suit begins, as against statute of limitation, or to constitute notice by lis pendens 32 Lis pendens, pendency of suit, as notice 33 Bills are original and not original 33 Original bills 33 1. Bill of Complaint 2. BiU of Interpleader 3. Bill of Certiorari 4. Bill of Discovery 5. Bill to perpetuate Testimony Original Bills, analysis chart 35 Bills not original 36 1. Supplemental Bill 36 2. Cross Bill 37 3. Bill to Impeach a Decree 37 4. Bill to Suspend a Decree 37 5. Bill to Carry a Decree into Effect 37 6. Bill of Eevivor 37 7. Bill of Review 37 An Original bill usually has nine formal parts 37 1. The address to the Court 37 2. The Introductory Part 37 3. The Stating Part 38 VIU CONTENTS. [references ABE TO PAGES.] 4. The Confederating Part 39 5. The Charging Part 39 6. The Jurisdiction Part ^^ 7. The Interrogatory or Discovery part 41 8. The Prayer for Eelief 43 9. Prayer for Process or Summons 43 Signature and Verification p • • • 44 Parts of a bill, which may be omitted 45 CHAPTER IV THE STATING PART OF A BILL The Stating part of a bill 46 The facts, the law, the court's mandate 46 Principal duties of the trial lawyer 46 It may be well to draft the decree before the bill . . 47 Only ultimate facts should be pleaded 47 The Facts in Issue 48 Statements in pleadings distinguished from state- ments of witness in testifying 49 Pleadings must state ultimate facts. Witnesses must not 49 Conclusions of law, the legal rights and duties growing out of the facts, should seldom be al- leged 50 Exhibits should be annexed 51 The allegations are the foundations of the proofs and of the decree , 51 All necessary facts should be averred, clearly and positively 51 Allegations upon information and belief 52 Allegations of time and place 52 Allegations of defendant's claims 52 Bill must cover entire controversy 52 Offer to do equity , 53 Bill should not impute laches 53 CONTENTS. IX [references are to PAGES-l Basing suit on alternative grounds 53 Evidential facts and not general charges should be pleaded to allege fraud or usury 53 Oyer in equity 54 In federal practice, charging part, may be placed in stating part of bill 54 Multifariousness 55 Impertinence 55 Scandal 55 CHAPTEE V BILLS NOT ORIGINAL Supplemental bills 57 Bills of revivor 57 Bill of Review 58 A petition for rehearing like a bill of review 59 Cross-bill 60 Cross-bill must be germane 61 Cross bill to aver defense arising after bill filed . . 61 Cross-bill unnecessary if answer attains relief .... 61 Defendants to cross-bill 62 Form of cross-bill 63 Pleading to cross-bill 63 Bills to impeach or suspend a decree, or to carry a decree into effect 63 BiUs not original, analysis chart 65 CHAPTER VI PBOCESS OR SUMMONS Process, service and return 66 Practice in U. S. Courts in obtaining jurisdiction over parties not found within the district 66 X CONTENTS. / CHAPTER VII appearance in couet [references are to pages.] Mode of appearing in court 68 Voluntary appearance 68 Effect of appearance 68 A special or limited appearance 68 CHAPTER VIII MOTIONS OP COTTBSE AND MOTIONS NOT OF COUKSE Interlocutory motions or petitions 69 Motions of course and motions not of course ...... 69 CHAPTER IX AMENDMENTS, SUPPLEMENTAIi PLEADINGS, AND INTERROGATORIES Nature of amendments 70 Amendments should not make a different case .... 70 Amendments to meet new facts in the answer .... 70 When amendments may be made 71 Leave of court must be obtained to amend 72 Method of amending the bill 72 Amending the answer 72 New answer to amended bill 73 A material amendment vacates all default orders . . 73 A party may object to a variance in the proofs and thus force an amendment or keep out the evidence 73 Amendment by supplemental bill 74 Bill of particulars in federal courts 74 Interrogatories, production of documents in federal court 74 contekts. xi [eepeeences are to pages.] CHAPTER X DISMISSAL OF BILL Dismissal hj plaintiff 76 Dismissal by defendant 76 Dismissal on court's own motion 77 Dismissal after decree 77 CHAPTEE XI DEMUKREES Table of Defenses to Actions, analysis chart .... 78 Defenses and defensive pleadings 78 Nature of a demurrer 79 Demurrer raises a question of law 79 Demurrer applies only to bill 79 Demurrer defined 80 Function or use of demurrer 81 Forms of demurrer 81 Grounds of demurrer must be stated 82 General demurrer 82 Special demurrer 83 1. A want of jurisdiction 83 2. A defect as to nonjoinder or misjoinder . . 83 3. A defect in the frame or form of the bill . 83 4. A defect showing a defense in bar of the suit 83 General and special demurrers distinguished .... 83 The "motion to dismiss" instead of the demurrer 84 Oral demurrers 85 Advisable to file general and special demurrer . . 85 Grounds of demurrer 85 1. Demurrers as to the jurisdiction of the court 86 2. Demurrers as to the parties 86 xu contents. [references are to pages.] 3. Demurrers as to the frame or form of the bill 86 4. Demurrers as to the remedy 86 5. Demurrers as to the merits 86 G-eneral grounds easily suggest the particular grounds 86 Different grounds of demurrer, analysis chart ... 87 What is conceded upon demurrer 88 A speaking demurrer 88 How demurrer may he waived 88 Effect of sustaining a demurrer 89 Effect of overruling a demurrer 89 Signature and Certification of Demurrer 89 CHAPTER XII PLEAS Plea defined 90 Plea and demurrer compared ; function of a plea . 90 Forms of pleas 91 1. Pure or Afiirmative Pleas 91 2. Negative Pleas 91 3. Anomalous Plea 91 Pleas supported by answer 92 Answer in support carefully limited 93 Grounds of pleas 93 1. Pleas to the jurisdiction of the court 93 2. Pleas as to the parties 93 3. Pleas in bar of the remedy 93 4. Pleas to the merits 93 Pleas to jurisdiction must give better jurisdiction 93 Different Grounds of Pleas, Analysis chart 95 In federal courts the separate plea is abolished . . 96 Testing the legal sufiBciency of a plea 96 Trial of case upon plea and replication 9fi Pleas verified 97 OOKTBNTS. Xlll [references are to pages.] Plea may be waived 98 Signature and Verification of Answers 107 CHAPTER XIII DISC!LAIMER 99 CHAPTER XIV ANSWEB 100 The third Mode of defense 100 Two-fold nature of answer, to give discovery, and to plead the defenses 100 Allegations, unanswered in an answer are deemed to be denied 101 When an answer is discovery, and when it is mere pleading 101 jiuswer must meet every allegation in the bill .... 102 Complainant may compel full answer 103 Not required to answer certain allegations 103 In an answer as well as in the bill avoid pleading evidential facts and conclusions of law 104 averments in the answer and proofs must corre- bpond 104 To reserve benefit of demurrer, answer must bpecif y the ground of demurrer as a defense . . 105 No affirmative relief upon an answer 105 Testing the legal sufficiency of an answer 105 Exceptions to an answer 106 Waiving answer 107 Signature and Verification of Pleas 98 A brief review table of defensive pleadings .... 107 Rtiview Chart of Defensive Pleadings, analysis . . 108 CHAPTER XV BEPUOATION Definition . . . ., ....„: 109 xiv contents. [eefbbbnces are to pages.] Effect of omitting replication 109 Replication brings the cause to issue 109 Amendments in some states take the place of special replications HO "Wlien filing of replication is waived HO Eeplication need not he signed Ill CHAPTER XVI EXAMINEES AND SPECIAL COMMISSIONEKS Examiner 112 Special Commissioners 112 CHAPTER XVII MASTERS IN CHANCEKT Nature of the Office 113 Duties of Master 113 Master's acts are limited by statutes, court rules and the order of reference 113 References to a master are subject to the court's discretion, except in a case involving an account- ing or voluminous testimony 114 Duty and power of Master in federal courts .... 114 Production of hooks and writings before Master . . 115 Production under subpoena duces tecum, or under notice . 116 Master's discretion to order production is limited. 116 Master may not permit withdrawal of exhibits . . 116 E'^'idence and objections thereto before master . . 116 Nature of hearing before master 118 Notice of hearing before master 118 Reference to state account 118 The master's report 119 Form and sufficiency of report 119 csontents. xv [eefebences are to pages.] The master should find as to each ultimate fact pleaded 119 Master must draw up his own report 120 But counsel may file briefs requesting particular findings 120 Form of brief before master 121 Objection that certain findings were omitted 121 Method of objecting to master's report 121 Exceptions in court to master's report 122 Court's rulino; upon exceptions should be specific. . 122 No objecti or exceptions necessary to master's conclusion- of law 122 Court may make findings additional to those in master's report 123 Action of court on report 123 Confirmation of master's report 123 CHAPTER XVIII EVIDENOB IN OHANCEBT Evidence is limited by the pleadings 125 Admissions and denials by the pleadings, by de- faults by stipulations 125 1. Admissions and denials implied in the plead ings 125 Express Admissions in the Pleadings . . 126 No Admission or Default Valid against an Infant 126 Admissions by averments of Bill 126 Admissions may be upon information and belief 126 2. Confessions by default 127 3. Admissions by express stipulation 127 Taking testimony 127 Preserving evidence in the record 129 Even rejected testimony should show upon the Xn CONTENTS. [references are to pases.] record 1^9 No "demurrer to evidence" in chancery suits .. 130 Forms in wMch evidence in equity is preserved of record ^^^ 1. A Judge 's Certificate of Evidence 131 2. A Master's report or certificate of evi- dence 131 3. A deposition 132 4. The reasons for verifying a deposition . . 133 5. Affidavits 133 Other ways in which evidence is deemed to be preserved of record 134 When evidence need not be preserved of record . . 134 Exhibits omitted before examiner or master may be introduced in open court 135 Objections and rulings upon evidence in chancery 135 Objections should be made in time to afford cor- rection 135 Exceptions unnecessary to rulings upon objections. 136 To save an objection for review it should be in- sisted upon 137 Judges and masters should express their rulings upon the record 137 When objections to master's rulings on evidence are brought before court for review 138 CHAPTER XIX the heaeing in coxjrt Procedure, upon hearing for decree 140 Abstracts of evidence specially made for the court. 140 Petition at hearing for leave to amend or to pre- sent new evidence 141 CONTENTS. XVil CHAPTER XX deceees and deceetial 0bder3 [repeeences are to pages.] Counsel prepares the decree 142 Counsel serves copy upon opposite solicitor .... 142 Final and interlocutory decrees 143 Final decree 143 Interlocutory decree 143 Decree in part final, in part interlocutory 144 Pro Confesso or default decrees 144 Rule days for defaults 144 Complainant may take default decree or force an answer 144 Default decree should find facts as to service .... 145 No defaults or confessions against infants 145 Effect of order pro confesso 145 Power of court to vacate decree pro confesso .... 145 Enforcement of decrees by attaclunent or seques- tration 146 CHAPTER XXI Iir JUNCTIONS Injunctions 148 Temporary Injunction 148 Perpetual Injunction 148 Restraining orders in federal courts 148 Preliminary injunctions and temporary restrain- ing orders in the federal court 149 Bill must show an existing right, and its impend- ing violation 150 XVUl CONTENTS. CHAPTEE XXII EBCEIVEBS [references ABE TO PAGES.] Definition 1^1 Situs of property 151 Object and grounds for appointment 151 Receiver will not be appointed where there is a remedy at law 152 Receiver's control over property 153 Bond instead of receiver 153 Bonds to be furnished 154 Receivers of corporations 154 Obtain leave to sue receiver 154 CHAPTER XXin niiTJSTBATIVB FORMS 157 EQUITY PLEADING AND PRACTICE CHAPTEE I. Nature of Equity and Common Law Jurisdiction; Stare Decisis; Case Law and Statute Law § 1. The ancient rigidity of common law decisions, caused the invention of the equity court. The pro- nouncements, decisions, of the ancient common-law courts became so arbitrary, fixed and narrow, were so strictly adhered to by the ancient common-law judges, that a large number of frauds and wrongs could not be adequately remedied. The common-law judges had come to regard their judicial decisions as establishing the letter of the principles of law, instead of being merely different judicial expressions on principles es- tablished outside their decisions, and in the common conscience and customs of the people. To remedy the inflexibility of the then common law, the King establish- ed himself as a new court of extraordinary powers, which became known as a court of "the King's Con- science," a "Court of Equity;" which concerned it- self more about substance, reason, than about the letter of decisions, more about the true intent and effect of acts and conduct, than about the form of acts, however disguised as lawful. This new court, while respecting the common law precedents, did not feel bound by them to the extent of withholding the justice demanded by the peculiar facts of any case. (1). ., I EQUITY PLEADING AND PBAOTICE. In time this new court, by its body of decisions, de- veloped its own rules and precedents, and there came to be "reports" of equity cases, as there were "re- ports" of law cases. These equity precedents, in a measure, have also become somewhat fixed; but the historical origin and purpose of this court, tend to prevent its precedents from falling into the ancient rigidity of the common law. "Circumstances alter cases," is a proverb of true experience. If decisions are regarded as merelj^ actual instances where certain unwritten rules of conduct are applied, if they are regarded as tentative expressions instead of as final expressions, then judicial decisions become an aid, and seldom a hindrance, in the practical administration of justice. § 2. Cases illustrate, taut do not absolutely make, the common law. Principles, fundamentals, of law (of established right conduct, unwritten law), are simple, are few, and are quite fixed; but the expressions, the applications of these fundamental rules, namely de- cisions, will be as numerous as the cases, and being fallible human expressions, they can not be entirely final or fixed. Lord Mansfield said: "The law does not consist of particular cases, but of general prin- ciples, which are illustrated and explained by those cases." This means that though we loosely speak of decisions as constituting the common and equity law, it would be more exact to speak of decisions as only illustrating, applying, interpreting that law, which real- ly consists of unwritten principles preexisting and established in the common conscience and usages of the people. § 3. Stare decisis; decisions contain authoritative ex- pressions upon the common and equity law. The same NATUEB OF EQUITY AND COMMON LAW JURISDICTION. 6 facts, mean the same cases, and ordinarily should mean the same decisions. Eespect for prior decisions, pre- vents arbitrariness, and compels lawyers and judges to scrutinize the reasoning of prior similar cases. Prior decisions bring before each judge the light, the reason- ing, and the learning of preceding ages. Certainty, stability, consistency, in correct decisions, are necessary to any reliable and just system of law, and therefore "a correct decision should stand and be followed." But judicial expressions are not infallible; and therefore tbe only fixity there can be in English and American equity and common-law decisions, is, that a decision, of a court of last resort, based upon just and sufficient reasons or grounds, should stand as expressing the law to govern like cases, until that decision be modified or enlarged by a later one, to accord with controlling and better reasons.^ The very method of common and equity law, the lib- erty of the court to base its decision always upon true reason or principle, and not necessarily upon preceding cases or expressions, makes its decisions all the more certain, reliable, worthy, and authoritative. "Let a prior correct decision stand and be followed" is what is meant by the doctrine known as stare de- cisis." Stare decisis makes the "case law," in other words "the common law" and "equity law." Only by "precedents," is the right kind of certainty and re- sponsibility introduced into the administration of our law. "If a former decision is manifestly unjust, it is not law,"^ and such a prior decision may be departed from by other judges, who usually point out the error in their opinion. Common and equity law, is "judge- made law," only in the sense that in judicial decisions especially, are to be found the more authoritative dis- 1 — Blaekstone 70; Dodge v. Cole, 2 — Blackstone 70; Gillham v. 97 m. 361. Madison E. E. Co., 49 HI. 484. 4 EQUITY PLEADING AND PBACTICE. cussions and expressions by the judges themselves, up- on many of the commonly accepted principles of correct human conduct. The doctrine of stare decisis applies with special force where a line of common-law decisions has es- tablished certain principles of law as the basic rules of property titles or of contractual obligations. It is evident that a later contrary decision, expressing a con- trary rule as being the common law, would unsettle prior titles, and impair the obligations of prior contracts , beyond the case in controversy before the court, and would thus have harmful retroactive consequences. If a common law rule of property is to be overruled it should be done by statute. A statute can not be retro- active. Nor can a court decision, giving a new and contrary construction to a statute be retroactive.' § 4. Source and basis of common law. A judge does not pretend to create a principle (fundamental rule), of law. It is his official function, by his opinion, to endeavor to show by what existing principle of right, a particular set of facts is governed. Our common law, like the jus gentium of the Eomans, and like the law of other nations, was not, and, upon the whole cannot be made or unmade, by the enactment or pronounce- ment of any man, or aggregate of men, however power- ful.* It consists of those principles (fundamentals), and rules of action, applicable to the government and security of persons and of property which do not rest for their authority upon any statute.^ Our common and equity law is an inherent part, and an historic expres- sion, of the life, customs and practices of our people. Courts cannot originate customs or usages, they can only recognize and give expression to such customs. 3 — Haskett v. Maxej, 134 Ind. 4 — James C. Carter, "Law, Its 187. Origin, Growth and Function." 5—1 Kent 492. NATUEB OF EQUITY AND COMMON LAW JTJBISDICTION. 5 Neither courts nor legislatures enact the common or equity law. It is self-made, and upon the whole, is a free and natural evolution.' In instances where courts have repeatedly adhered to some precedent and out- worn custom, which has become unfair as judged by present customs, statutes are occasionally enacted which abrogate or modify such rules of the common law. Because of its basis upon the true customs, prin- ciples, of life and of conduct, and because of its case- method of expression, our common and equity law is always free to re-express itself more correctly in any new case, in order better to accord with fact, truth and reason. Common and equity law, is the free, unenacted, "unwritten" law, of a free people; it develops itself;" it is a true and natural system of law. It compares with enacted law (statutes or statutory codes, attempt- ing to cover the whole or a large part of the subject of private rights), as experience and fact compare with experiment and belief. In the one, the existing com- 6 — James C. Carter, "Law, Its the people can give us any dispen- Origin, Growth and Function ; ' ' sation for not obeying this universal George H. Smith, "Elements of law of justice. It needs no other Eight and Law;" E. Floyd Clarke, expositor and interpreter than our ' ' The Science of Law ; " W. 8. Pat- own conscience. It is not one thing tee, "The Essential Nature of at Eome and another at Athens; Law ; " E. L. Campbell, ' ' Science of one thing today and another tomor- Law;" Herbert Spencer, "Social row; but in all times and nations Statics;" Ed. 1897 pp. 376 to 411. this universal law must forever ' ' True law is right reason con- reign, eternal and imperishable. It formable to nature, universal, un- is the sovereign master and emperor changeable, eternal, whose com- of all beings. God Himself is its mands urge us to duty, and whose author, its promulgator, its enforcer, prohibitions restrain us from evil. And he who does not obey it flies Whether it enjoins or forbids, the from himself, and does violence to good respect its injunctions, and the very nature of man. And by the wicked treat them with indif- so doing he will endure the severest ference. This law cannot be con- penalties even if he avoid the other tiadicted by any other law, and is evils which are usually accounted not liable either to derogation or punishment." — Cicero, On the Corn- abrogation. Neither the Bena,te nor monwealth, Book III, Sec 22, b EQUITY PLEADING AND PRACTICE. mon conseience and customs, prescribe conduct; in the other, the commandments of a legislature, or other law giver, prescribe conduct. § 4A. Positive Law. Both case law and statute law are enforced by the state, and hence are called im- perative, or positive law, as distinct from other ethical principles or laws, not enforced by courts and state. It is desired here to call the student's attention to the fact that common law or case law, is accepted and en- forced as law, not by the edict of judge or legislature, but by the common recognition of its justice and reason- ableness by other judges and the people; while statute law, is law simply because it is imperatively commanded by the power of the state. § 5. Nature and scope of statute law. Statutes are not necessarily in accordance with fundamental truths, facts, principles. They are concrete commands, enacted by fallible men. They may be arbitrary and not based upon true reasons, true facts. Unlike common law de- cisions, statutes are not tentatively expressed, subject, to be more correctly expressed by later decisions. Human expressions are seldom exact, adequate, or properly limited. The expression of enacted law stands more rigid and fixed by its letter, because the language of a statute can be changed only by legislative amend- ment, and at a place where those whose rights are affect- ed, cannot be heard. Statutory language cannot be cor- rected by courts, though actual cases may plainly show the language is too broad for what was probably in- tended. Statutes must receive a strict and grammatical construction by the courts. Common law decisions must receive a reasonable and logical construction, as indi- cated and limited by the facts in controversy, and not a grammatical construction merely of the language used.'^ 7-R. F. Clark-The Science of Law. KATUBE OF EQUITY AND COMMON LAW JUBISDICTION. t Administrative statutes, setting up, not rights them- selves, but rather the varioiis governmental agencies, procedures, and remedies, for the promotion and pro- tection of rights, are necessary and proper subjects for the legislature. But statutes cannot so well as courts, go beyond this field, and attempt to define and apply the infinite principles of human justice, or rights.* Particular future rights, depend upon the unforeseeable combination of facts in each future case. Pronouncing what is right or wrong under the varying facts of different eases, is best done by courts, the govern- mental agency established by the people for the pur- pose.* If the legislature, or code-makers, could foresee every combination of facts that may in future occur, have them elucidated by opposing parties, and have them reasoned and pronounced upon by impartial ex- perts, then their pronouncements, embodied in statutes or codes, might be something like the decisions of equity and common law judges; and they would be about as numerous. Administrative law, is proper for the legislature; the law of private rights, is more properly for the court, the only place where, in the course of time, every conceivable right is earnestly as- serted, strongly attacked, fully defended, fully discuss- ed, and impartially decided. § 6. Certain rights, antedate governments and con- stitutions, and constitute what might be called the prescriptive constitution.^" Natural laws are the limi- tations or demands imposed by the facts of nature. Self preservation is a law of nature. It is the first and most important right or law of living beings. It operates es- 8 — "Our Btatutea leave practically 9 — Blaekstone 61. untouched that body of our laws 10 — See authorities cited under which deals with justice" (James note 6 ante. C. Carter). 8 EQUITY PLEADING AND PBAOTIOE. pecially upon the individual and his family. Certain large classes of human rights, such as personal security, liberty and property, are merely other names for the right of self preservation. They are the means of. self preservation. They are the indispensable incidents, attributes, facts, laws, of man's existence and nature. They cause him to be an independent provider, a sep- arate independent being (individual), of a separate family, of a separate community or nation. ^He labors especially for direct benefits to himself and family. He and his family prosper according as he labors. The in- dividual, the family, and the community welfare, are preserved and promoted by the individual, fam- ily and national security, liberty and property. The nation is a union of self reliant, separate, independent, individuals and families whose union is chiefly for the purpose of protecting themselves in the enjoyment of the fruits of their labor. It is a union that grows out of natural facts." It is as much of a socialism as the laws of self preservation will permit. These and other "inherent" rights, principles, laws, are not merely suppositions, ideas, or theories, tolerated 11 — Ours perhaps is as mucli of active control of the collective prop- a soeialism as is consistent with erty, the workers, the electors, the law of self preservation, with would have to be satisfied with what the freedom, independence, of in- labor or property the Public Man- dividuals and families. In a agers apportioned to them. A thoroughgoing socialism, collective socialism which unduly restricts in- ownership and collective control of dividual liberty, or property, the all property lacks the stimulus and reward of labor, is not consistent certainty of individual ownership with the facts (laws) of human and control. Even the elect poll- life. Self preservation, means self tician class — ^who would be elected reliance, — individual providence and to manage the collective property independence, freedom. The kind and to assign the workers to their of socialism we now enjoy is true tasks — ^would not have the feeling to the laws of nature and human of security and ownership we now life, and its progress and improve- enjoy by individual providence and ment perhaps keeps pace with hu- ownership. Certainly those not man development, elect, those having no part in the NATURE OF EQUITY AND COMMON LAW JURISDICTION. 9 and accepted as right or true, by a particular gener- ation, or majority, or government. They are facts eternal, facts of nature. It is the very nature and the unchanging impulse of provident, family-loving man, to make secure his individual and family life, liberty and property. So far as provision for the future depends upon others, or upon the government, life would be de- pendent and precarious, not free, not reliable. Only independence of others, only freedom, liberty, to provide directly for himself and family makes certain and reliable his own and family life, and the life of the nation. Through the ages, because of his instincts for self preservation, each man has struggled to enforce these rights, with the aid of his fellows and government, and with his own right arm if necessary. In history through- out the generations, these great facts, laws, rights, have reasserted and vindicated themselves as true facts, laws, however often they may have been "crushed to earth" for a time by the force of temporary majority opinion, or by physical power. For these reasons such rights are held in reverence, as being "inherent" and "inalienable." By their own force, as actual natural facts, or laws, or rights, or truths, they persist as "principles," and tend to check the arbitrary enactments of despotism or mere power. The English "Magna Charta," like the "American Bill of Eights, ' ' is written and enforced primarily by human nature itself. Statutes or constitutions serve the pur- pose of extraordinary emphasis and promulgation. Neither constitutions nor statutes originate or bestow these fundamental rights upon man. These facts, rights, are the basic principles, institutions, laws of the race, conditioning and prescribing other institutions or laws. 10 EQUITY PLEADING AND PKACTICB. They are the "prescriptive" constitutions, upon which written constitutions are foundationed.^* § 7. Only in the United States, through the separa- tion and independence of the judicial power, is law, justice, established as supreme and free. In the United States, the judicial power is established by the people as a power independent of the executive, and inde- pendent of the legislative, so that the courts may the more faithfully and independently act as the representa- tives, the tribunes, the guardians, the spokesmen, the defenders, of the true liberties, rights, laws, of the people, and even of a minority of the people. Montes- quieu said "There is no liberty, if there be no separa- tion between the judicial power, and the legislative and executive power." Only in the United States are these powers separated as clearly as is possible. In America it is "to secure these rights and the blessings of liberty," and "to establish justice," that govern- ments are established.^^ Great classes of human rights 12 — American Declaration of In- and happiness." dependence. "We hold these truths The Common Law, (the unwritten to be self evident: that all men are law, history of our common life equal; that they are endowed by and customs) is the broad basis their Creator with certain inalien- of our constitutions. (Lieber, Civil able rights; that among these are Liberty, page 204) (George H. life, liberty, and the pursuit of Smith — Elements of Right and Law, happiness. That, to secure these 2nd Ed. page 180-181.) rights, governments are instituted "AU rights are vested in per- among men, deriving their just powers sons, are over persons or things; from the consent of the governed; are originated, terminated or varied that, whenever any form of govern- only by events; and are ascertained ment becomes destructive of these by principles deduced from the ends, it is the right of the people nature of persons and things, and to alter or to abolish it, and to the relations between them. ' ' George institute a new government, lay- H. Smith, Elements of Eight and ing its foundation on such princi- Law, page 60. pies, and organizing its powers in 13— Declaration of Independence, such form, as to them shaU seem Constitutions of the United States most likely to effect their safety and of the various States. NATURE OF EQUITY AND COMMON LAW JURISDICTION. 11 are broadly recognized in "Bills of Rights.'"^ The sober, responsible judgment of the people, resides in their courts and is expressed in the "Case Law." Their rights and liberties, are the aim and end of their governments, and can be protected only by their courts. Our courts are not sovereign and supreme; our legis- latures are not supreme; only fundamental principles of law are supreme.^"^ In America neither rulers nor majorities can be trusted to be supreme, only reason and right, only law, can be trusted. The supremacy of law and not of men is the lasting foundation of American liberty. ^* For man's intellectual guidance, and for the peace and good order of society, it is necessary that some authorized agency, like the courts, through decisions, interpret, express and formulate in language, as ac- curately as possible from time to time, according to their light of reason, those statutes, customs and exist- ing principles of right, which in the aggregate consti- tute the law of our land. To be free from improper in- fluences, courts must be an independent and separate power of government. Their decisions are made only in actual cases brought by aggrieved suitors, and the force and permanency of their decisions depend upon the reasons upon which they are based. § 8. Decisions are based upon reasons, facts. A court decision expresses the law only so far as it is based upon, or expresses reasons, facts, or refers to other decisions which give the reasons. Reasons are fundamental princi- ples, grounds, tacts, laws. Eeasons are definite things, not mere words. Eeasoning is thinging, (thinking), putting things together; presenting actual facts, grounds, which 14 — Bailey v. People, 190 111. 33. 16 — Francis Lieber, Civil Lib- 15 — Herbert Spencer, Social Stat- erty, 4th Ed. p. 204. ies, pp. 376 to 411. 12 EQX7ITT PLEADING AND PRACTICE. lead to a conclusion, instead of beliefs, or nnfotmded assumptions of fact, or unfounded doctrines, however high-sounding. As Sir Henry Maine said of law: "It is better to walk by sight than to walk by faith." Bea- sons are the facts, grounds, things-why, which lead normal minds to the same conclusions. In the science of logic, in a correct syllogism of three premises, the middle proposition is always the proposi- tion of fact, (the reason), from which the third premise or conclusion springs. In ordinary human reasoning, we omit the first and third premises of a syllogism, and state only the second, or middle proposition of fact, and we let the conclusion be inferred directly from the fact (the reason) stated. Therefore we should know just what facts to use as reasons. Lord Bacon says: "Ipsis consuescere rebus." We should accustom our minds to know the full true nature of things. "Keason is the highest law," says Cicero. "What is not reason is not law," says Blackstone. "He knows not the law who knows not the reason thereof," says Coke. The vast majority of judicial decisions, either express good reasons, or are based upon good reasons, and therefore are followed. The unsound decisions in the course of time, are not followed by other courts of the different states, and thus fade into oblivion, or are reversed. § 9. "Case law." This is the much misunderstood "Case Law," or common and equity law; free as truth itself to grow ; a treasure house of fundamental truths ; its sound precedents ever correcting, improving, and enriching the language of the law; its unsound prec- edents pruned away in time. Case-Law tends to rea- sonable, instead of arbitrary decisions. It means a decision in a case should state the facts, grow out of the facts, and agree with the facts, like other correct decisions that may have preceded. It does not mean. NATURE OF EQUITY AND COMMON LAW JUEISDICTION. 13 that a new case must always be based upon some pre- ceding ease, because a preceding case may not exist. The principles of the common and equity law, pre-exist, and can be applied or expressed in any new ease for the first time.^'^ Whether or not a prior similar case exists, the lawyers, and the judge, are free to reason afresh upon the facts of any case on trial, as well as to receive additional light from prior similar cases, if any exist. In order to avoid injustice, a judge may even depart from a preceding similar ease, if it is manifestly erroneous, and he need only be careful to distinctly state the reasons. Case-Law is free law, is rational law, is true law, is natural law; and for these reasons alone, is comnaon and equity law a true science, instead of a record of arbitrary judgments. It is the most precious product and heritage of a free people. It is the stable founda- tion and guarantee of truth, and liberty, and right. Every American citizen and especially the student, the lawyer and the judge, should understand its source, nature and scope, and should understand the different source, nature and scope, of statute law, or code law. The principles of the one, though "unwritten," are known and established only by the facts and customs of the life of the race; the other is written and established by the pen and power of the law givers, even it may be, contrary to the facts and customs of life. § 10. No case law in continental Europe. On the European continent, in code_ countries, statutes, under the name of a code, are supposed to cover all cases that can arise, and no decisions are tolerated in the sense of making authoritative precedents. There, every com- bination of facts is judged under the letter of some 17— Piper v. Hoard, 107 N. Y. 73; Gavin v. Curtin, 171 III. 640. 14 EQUITY PLEADING AND PEACTICE. statute, whether so intended or not. Therefore in Europe, there exist no illustrative preceding cases to prevent the European judge from being arbitrary; and he need give no reasons for his decision; and no case, however carefully reasoned out, is officially printed and preserved as a guide for similar cases in the future. § 11. The equity court rescued the common law. As said before, the ancient common law judges exaggerated the importance and sufficiency of their own decisions, and thus they narrowed the meaning of case-law, and of the doctrine, stare decisis. They made the common law almost as fixed as statutes. To them the king was the "fountain of justice" and they were his justices. In their view their pronouncements, decisions, were "the commands of the superior power to the subject." These ideas are still reflected in the doctrines of Hobbes, Bentham, and Austin. But truth, right, justice, has a might of its own; it finally swept away the an- cient, narrow views of the common law, and compelled even the king, to invent the equity court. Had more of the ancient judges themselves fully appreciated the nature of the common law, their decisions would have been less dogmatic, and there would have been no need for the invention of the equity court ;^* which, after all, is nothing more than a sort of common law court, which has adopted anew the true, common law spirit and method. The equity court rescued English law from slavery to the fixed letter of precedents, into which it had fallen, and now equity and common law together really con- stitute one system of non-statute law, each court merely handling a distinct class of cases.^* 18 — W. Blake Odgers, a cen- millan 1901 London, tury of Law Eeform, p. 179, Mao- 19 — 1 Story Eq. 25, NATURE OF EQUITY AND COMMON LAW JUElgfilCTION. 15 § 12. Origin of the chancellor. In ancient times the proceedings were before the king, who, with the help of his chancellor and council, judged as the nature of the cause required. Later, with the increase of business, petitions were referred to the chancellor alone, who at first was usually a bishop of the church, supposedly a better judge of "equity and good conscience" than a layman. Thus the chancellor became a judge, and pe- titions were addressed to him instead of to the king. The chancellor was also called "the Keeper of the Great Seal," and "the Keeper of the King's Con- science."^** § 13. Exclusive Jurisdiction.^* Equity created trust estates, equities of redemption, equitable liensj rights arising out of partnerships, the construction of wills. These rights purely equitable and not recognized or rem- edied by Common Law, are protected and enforced only in a court of equity. § 14. Jurisdiction concurrent with common law,^^ includes cases involving rights growing out of trust relations where a fund is impressed with a trust ; rights of assignees of choses in action; rights arising from fraud, accident, and mistake, where these rights con- stitute the sole ground of jurisdiction; contracts for the acquisition of things of peculiar value; mutual and complicated accounts, where the accounting constitutes the sole ground of jurisdiction; rights of contribution arising out of suretyship ; rights to discover and apply property of debtors; rights of partition, dower, ad- justment of boundaries; rights arising from nuisances, waste, and other torts where mere damages would be not adequate; rights involving a multiplicity of suits 20 — Burrough's History of the 21 — 1 Whitehouse Eq. Pr. 12. Chancery. 22 — 1 Whitehouse 14. 16 EQUITY PLEADING AND PBACTICB. for their protection; and rights to relief from void and illegal contracts, or from actions or judgments on the same. In all these actions, the complainant has his election to sue at law or in equity, and he cannot be compelled to go into equity even when the remedy at law is inadequate. And in all such cases Equity will not be ousted of its jurisdiction "because the courts of law happen to fall in love with the same or a similar jurisdiction," but such jurisdiction remains and will be exercised concurrently with the common law in such cases even tho the remedy at law be adequate and com- plete. Except in the Federal equity courts^^ it is untrue and misleading to say that courts of equity will not taJce jurisdiction where there is a plain, adequate and com- plete remedy at common law?^ It is only in suits where the common law always and before equity courts has pro- vided an adequate remedy, that a court of equity will not take jurisdiction. JUKISDICTION MAY SOMETIMES BE GIVEN BY CONSENT OE PAETIES AND BY EAILTJEE TO DEMUK? Neither COUSent of parties nor failure to demur, can give jurisdiction to an equity court over that class of eases, always remedied at common law, like suits for slander, or for assault and battery, etc. But consent, and failure to demur, can give jurisdiction to an equity court over contract cases ;^^ because a contract case accord- ing to different facts, might be a law case or be an equity case; and because a lower court does not scrutin- ize the facts of such cases, unless advised by demurrer. Therefore a court of review will sustain the jurisdic- tion of the lower court in such cases unless demurrer was insisted upon below. 23—1 Whitehouse 28. 25 — Law v. Ware, 238 111. 360; 24—1 WMtehouse 17. Richards v. R. R. Co., 124 lU. 516; Stout V. Cook, 41 lU. 447. NATUBE OF EQUITY AND COMMON LAW JUKISDICTION. 17 § 15. Auxiliary Jurisdiction. ^^ Upon a Bill of Complaint filed for the purpose of Discovery, equity courts render assistance in aid of actions at Common Law, by granting discovery, requiring the parties to a suit to disclose facts or to produce documents. Prior to modem statutes the parties to a suit could not otherwise be required to give evidence. Bills for Discovery alone, are now almost obsolete. Also courts of equity will aid a future action upon a Bill of Complaint filed for the purpose of Perpetuating Testimony which cannot be used until a future suit, or to take Testimony de bene esse in a pending action at law, which testimony is liable to be lost because a witness is sick or is about to depart from the country, or is the only witness in the case. § 16. Incidental Jurisdiction of Equity Courts^^ to award the same relief as at Common Law. It is a doctrine of Equity, that where a court of Equity has properly obtained jurisdiction over some portion or feature of a controversy, it may and generally will pro- ceed to decide all the issues and to award complete re- lief, altho the rights are strictly legal and the relief is the same as might be obtained from a court of law. § 17. The territorial jurisdiction of a court of equity** extends to all persons residing within its territorial limits, or who are served with process within such limits, or who voluntarily offer to submit them- selves to the jurisdiction of the court; and to all prop- erty within such territorial limits, or even property outside of such limits which can be reached by proceed- ings in personam against persons who are within the jurisdiction of the court. 26 — 1 Whitehouse 33. 28 — 1 Whitehouse 48. 27 — 1 Whitehouse 42. E. P. & P.— 2 18 EQUITY PLEADING AND PEACTICE. § 18. Consequence of suing in the wrong court. How serious may be the objection to a suit, that the par- ticular case is not a case within the jurisdiction of an equity court, depends upon the procedural law of the particular state, or jurisdiction, in which the objection is made. In states where equity courts are entirely dis- tinct and separate from law courts, such objection, if valid, would cause a dismissal of the particular suit, and suit then must be beg-un again in a common law court. In states where the equity courts and the com- mon law courts are not separate, the objection must be raised in apt time, or it will be waived. In some juris- dictions, as in the federal courts, a case erroneously begun in equity, may simply be transferred to the law side, and vice versa. § 19. Administration of equity jurisdiction as a rule is distinct from common law jurisdiction, and equity pleading is distinct and different from pleadings at com- mon law. In the federal system, the equity jurisdiction is lodged in the district courts of the United States, and is distinct and separate from the common law jurisdic- tion. In most of the states also, the administration of equity jurisdiction is distinct and separate from that of common law.. Therefore, equity pleading and prac- tice, is a distinct system. It is necessary for a student to understand the nature of a court of equity, also the principal maxims of equity jurisprudence, also the chief subjects of equity jurisdiction, in order to have an in- telligent idea of equity pleading and practice. § 20. Equity procedure differs from that of common law. In equity pleading there is but one form of stating a claim or a defense, and that form is simply to state the ultimate facts necessary to constitute the claim or defense. At common law, there are several distinct NATURE OF EQUITY AND COMMON LAW JURISDICTION. 19 forms of actions, according to one or the other of which, every common law case must be pleaded. In equity eases, evidence, as a rule, is reduced to writing, usually in the form of depositions, taken outside the court- room, and afterwards delivered in court, and read to the court, at the hearing of the case for a decree. At common law, oral evidence, as a rule, is offered before a jury in open court. At common law, a jury usually hears and judges the facts; in equity, the judge hears and judges the facts. At common law the decision of the case is in the form of a judgment for the plaintiff usually in damages. In equity, the decision is in the form of a decree, not merely giving money damages, but ordering aU the varied acts or conduct which may be necessary for justice in each different case. At law, the remedy, as a rule, is damages; in equity the rem- edy, as a rule, is personal compulsion to do or personal injunction against doing particular acts. Common law compensates for a wrong done ; equity actively corrects or prevents a wrong. Thru equity even a child can call to his rescue the entire power of the state, to prevent a threatened serious wrong, however numerous and powerful the wrongdoers. Equity is the strong arm of the law, every ready to aid the oppressed and to punish the oppressor. Equity fulfills the mission of law; it is society's active force for righteousness. CHAPTEE n Parties § 21. Two Fundamental Principles which determine who should be made parties to a suit: (1) No court has the power or jurisdiction to decide and affect a person's rights unless such person has been given op- portunity to appear and vindicate his rights. (2) When a decision is rendered in regard to any subject matter, the rights of all persons directly concerned in the mat- ter shaU be provided for, to the end that justice may be done and future litigation prevented.^ § 22. Parties plaintiff. All persons interested in the subject-matter and entitled to the relief sought, should be joined as complainants. Parties who have conflicting interests should not be joined as plaintiffs,^ If among the plaintiffs there be one not entitled to relief, the ob- jection should be cured by dismissing the bill as to such plaintiff. If one not made a party, discloses an interest in the subject-matter, plaintiff must amend his bill and make him a party. In equity a suit must be brought in the name of the real party in interest, even if he is an assignee, for ex- ample; and not, as at common law, in the name of an assignor "for the use of" his assignee. But an execu- tor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party ex- pressly authorized by statute, may sue in his own name, 1—1 Whitehouse 71. 2 — Alston v. Jones, 3 Barb. 397; U. S. Eq. Bule 37. 20 PABTIEa. 21 as such executor, etc., "without joining the persons for whose benefit he brings the action.' § 23. Parties defendant. All persons, whose interest or rights will be affected, or ought to be settled, by the decree, who have not been joined as plaintiffs, or whose interests are adverse to the plaintiff, should be joined as defendants. § 24. Circumstances under which the court can dis- pense with some parties, though they have an interest in the subject matter. As before stated, all persons whose interests will be, or ought to be, affected by a decree, should be made parties, — either plaintiffs or de- fendants, in order that equity may do complete justice and prevent further litigation. But where it is clear that justice may be defeated by the difficulty, delay, or impossibility, of bringing in certain parties, then, if there are other necessary parties who are present and if a decree can be entered, which will not affect the rights of such absent parties, an equity court will have jurisdiction and can in its discretion proceed to such a decree without them. Whether or not a court of equity can dispense with a party and still maintain jurisdiction over the suit, depends upon the nature of the absent party's interest and whether or not such interest must be affected by the decree to be entered.* § 25. Three degrees of dispensability by the court of parties: 1. Necessary and indispensable parties, are persons having interests such that no decree can be made in the suit without affecting such interests; the courts are 3— tr. S. Eq. Rule. 37. 549. Barney v. Baltimore, 6 Wall. 4— Hieklen v. Mareo, 66 Fed. B«p. 280. 22 EQUITY PLEADING AND PEACTTCB. powerless, without jurisdiction, to proceed without such parties.^ 2. Necessary hut dispensable parties, are persons having interests such that the controversy cannot be determined completely without them, but still such a peculiar interest, that some kind of a decree can be en- tered, which will not affect such interest. The court has discretion to refuse to proceed without such parties; but it has power in its discretion, to proceed without them where the bill shows that the delay, difficulty or impossibility of bringing them in, would defeat justice;" as when such parties are be- yond the jurisdiction; or when such parties are un- known after due diligence to ascertain them ; or if parties are so numerous that it is not practicable to bring them all in, and at the same time those absent, are virtually represented by similarly interested part- ies actually present in court defending the suit,'^ as is the case with numerous members of a voluntary as- sociation; or when some parties, if named, would oust the court's jurisdiction,^ or, if the absent parties have acquired an interest for the very purpose of ousting the court's jurisdiction; or if parties are not yet in exis- tence who may have a future contingent interest, and they are virtually represented by parties already in court.® 3. Unnecessary hut proper {or nominal or formal) parties, are persons who have no interest in the contro- versy, and yet have an interest in the subject-matter of the controversy, which it is convenient to settle in the suit. 5— Tobin v. Walkinshaw, 23 Fed. 7 — IT. S. Eq. Eule 38; Hale v. C-as. No. 14068; 1 McAU. 26; Mai- Hale, 146 HI. 227. low V. Hinde, 12 Wheat. U. S. 193. 8— U. S. Eq. Eule 39. 6— Payne t. Hook, 7 Wallace 9— McEall v. Kirkpatriek, 236 HI 425-433. 306. PASTIES. 23 The court has power, jurisdiction, to proceed without such parties; and it is optional with the plaintiff to omit or to join such persons as parties, so far as the jurisdiction of the court over the cause is concerned. But the court cannot affect the interests of such omitted parties by any decree in the suit, and the rights of omit- ted parties in the subject-matter of the suit will re- main as before the suit. Where no account, payment, conveyance, or other direct relief is sought against one made a party to a suit, not being an infant, such party upon service of subpoena upon him, need not appear and answer unless plaintiff specially requires him to do so by prayer. But he may appear, and if he does not appear and answer, he shall be bound by all proceedings in the cause.^° If required to answer he shall be entitled to the costs of all proceedings against him unless the court otherwise directs. 10— tr. S. Eq. Enle 40. 24 EQUITY PLEADING AND PKACTICB. Parties in Equity I « M ga a DO Si •g 4, e Q- -O 2 s « +3 V - «8 OS * .5 s ft s _ B a> * t; B fi^ 2 ° +^■3 p o o*^ *» • ■P 00 a h O) 00 w A >3 V ^ a SSsa o ti ►^ n !« = » IS w 0) OQ ,-4 a gull I5 as "a S £ *- CD sa CO- V Z' ■ ??? g' a s £ aS S3 SI 0) 4« H ft a'" is »^ HAS I "I a* S « ••I p. W 0) * '^ a n 0) 5 u d V P ^ -M ID aU as! •On Sal -• «5 fe - pS o 3 p 13 _ i> o V S " a o * •a 7! HI 0) P 'O ■So* ■Sh « a 9 MAO So ill A a 5^^ a.-igSi * h 2 -c 5 g P P P ^ rt a a p s ° p *: g ^ ** ►1 " s 0; o S9 _ _.a 2 « a) P .„ ^ ■30, p ? a a to £[ a)*^ t S€ « -t-" * fl) « cd £ Gs a p 9 5 "Si « BA h o O O .Jt VI « ^ n B N1 «-l O B3 OD ti. Si*t; p »- « p O) oj !S£ aa p p a PARTIES. 25 § 26. Creating, or dividing, interests to oust the jurisdiction. If a party has divided his interest among a number of persons for the purpose of depriving the court of jurisdiction, the suit will proceed in the absence of such parties, because such a division is an attem,pt to defeat justice.^^ It would also be an attempt to defeat the jurisdiction of a federal court, if a real party in interest, who should be the defendant, makes a merely colorable conveyance of his interest to a person of the same citizenship as the complainant. § 27. Parties who consent to a decree without being named as parties. It is not necessary to pray process and serve with process parties who it is alleged in the bill, will consent to the decree. The decree in such case should expressly find that such parties approved the de- cree in writing. § 28. Virtual representation of parties. Sometimes parties who are virtually represented by others, may be bound by the decree. Such parties are deemed to be constructively before the court, though in fact they have no opportunity to be heard. Their interests must, how- ever, be virtually and fairly, though not actually, repre- sented by others who are before the court. For ex- ample: Executors and administrators represent credi- tors and distributees,^^ and an assignee for creditors represents the insolvent debtor and his creditors.^^ § 29. Naming of parties as plaintiffs or defendants. The exact designation of parties as plaintiffs or defend- ants is not strictly necessary. The court may transpose a party from one side to the other, or it may proceed to 11 — TTnion Bank of La. v. Staf- 12 — Sturgeon v. Burrall, 1 111. ford, 12 Howard, 327 j Calv. Parties, App. 537. p. 61. 13 — Stevenson v. Austin, 3 Meto. Mass. 474. 26 EQUITY PLEADING AND PBACTICE. a decree without making the formal change. One who should be a co-complainant, but refuses to join as such, should be made a defendant.^* § 30. Who are deemed parties. The parties to a suit in equity, are those only who are named as parties in the bill; plaintiffs as named in the introductory part, and defendants, those named' as such, and against whom process or summons is prayed. Persons, not parties to the record, may be heard upon petition or motion, but the court will not look outside the record for the parties. One not named as a party cannot make himself a party by filing a pleading to the bill. But any one claiming an interest in the litigation may at any time be permitted to assert his rights by filing an intervening petition ; but such intervention will be subordinate to the main pro- ceeding.*** § 31. To obtain answer under oath, of corporation officer. When the complainant desires to obtain from a corporation the answer of some o£5cer of the corpora- tion, under oath, such officer must be named and made one of the defendants, in the bill.** § 32. Objections as to parties. The objection that a party has been misjoined as a defendant, when he should have been joined as a plaintiff, or vice versa, is often disregarded, because, in equity, it is not always important. Such an objection must be made in apt time. But an objection that there has been nonjoinder of a necessary and indispensable party, may be raised, in any manner, at any time, as on the hearing or on appeal, and it goes to the jurisdiction. The court may of its own motion raise and act upon the objection. But U. S. 14— Whitney v. Mayo, 15 HI. 251. 16 — Buford v. Eucker, 4 J. J. 15— U. S. Eq. Rule 37. Marsh 551. PABTIES. 27 Equity Eule 43 requires plaintiff to set the cause for hearing within fourteen days after answer, "upon de- fendant's objection for a want of parties," so that the question of necessary parties can be determined before proceeding further. If plaintiff omits to do this the court may dismiss the bill. The objection that neces- sary, but dispensable, parties were not joined, must be raised by demurrer, plea, or answer, in which the proper omitted parties must be pointed out, not by name, if that is impossible, but in such manner as to indicate the precise objection and enable plaintiff to amend.^'^ If such objection is delayed till the hearing in the federal courts, the court is at liberty to make a decree, saving the rights of the absent parties.^* § 33. Correcting defects as to parties. The question of nonjoinder of necessary parties, should, if possible, be raised before incurring the delay and expense of tak- ing testimony. The proper course in case of misjoinder is to amend by dismissing as to the one improperly joined. Where the defect is a nonjoinder of necessary parties, the suit is merely suspended. The court should not proceed until the absent parties are before it, but the proper order is for the cause to stand over, with leave to amend by adding new parties, and if that be not done within the time fixed, that the bill be then dismissed. An appellate court will not reverse a decree for want of parties who ought to have been joined, provided sufficient parties were before the court to sustain the decree as rendered; and where the decree cannot be sustained, the court will, generally, instead of dismissing the bill, remand it to the court below, that the omitted parties may be brought in. 17— U. a Bq. Eule 44. 1&— U. 8. Eq. Bvde 44. 28 KQUITT PLEADING AND PBACTICE. § 34. Partners should be named as individuals. Where a co-partnership, or association other than a corporation, is a party, the names of the individuals must be set forth, because it is not proper to use the firm name." And the full given names of the parties in all cases should be used instead of the initials.^** § 35. Federal jurisdiction based on diverse citizen- ship. Bills in the federal courts, when based on diverse citizenship, must distinctly and positively aver the di- verse citizenship of the parties, and suit must be brought in the district where the defendant resides, or where he is found when served with process.*^ § 36. An infant must sue in his own name by another adult person, "as his next friend" (prochein ami)^^ whose name is mentioned in the title of the cause, but does not occur elsewhere in the pleadings. Such next friend is liable for costs of suit. § 37. Actions by idiots and lunatics are also brought in the name of the idiot, by some next friend^* or by guardian, conservator or committee duly appointed. § 38. Infants, idiots and lunatics are incapable of defending a suit alone.^* Tho named as defendants their defense must be conducted by a "guardian ad litem" appointed by the court for the purpose of that suit, or be conducted by the regular guardian if his interests are not adverse to his ward's. The guardian in such case is entitled to reasonable compensation and is not liable for costs. If there is no guardian or 19— The Protector, 11 WaU 82; 21 — TJ. 8. Eq. Eule 25. Chapman v. Barney, 129 TJ. S. 677. 22 — 1 Whitehouse Eq. Pr. 59. 20 — Monroe Cattle Co. ». Becker, 23 — 1 Whitehoufe 63. 147 U. S. 47; U. 8. Bq. Rule 26. 24—1 Whitehouse 68. PABTIE8. 29 guardian ad litem, the bill will be dismissed. Guardian? are not regarded as parties proper to the suit. They only represent the ward. CHAPTER m. Bills in Equity. § 39. The chief pleadings. The chief pleadings in an equity case are: (1) the bill of complaint; (2) the de- murrer, plea, or answer, of the defendant; (3) the replication of the complainant. § 40. Purposes of written pleadings. At the trial of a case each party must prove the material facts con- stituting his claim or his defense, which are con- troverted by his opponent. These controverted al- legations are known as the issues, or facts in issue. Therefore, these material facts in issue should be made known to the parties before trial in order that they may ascertain and secure the proper evidence and witnesses. Pleadings are the written statements before trial of the material facts constituting the complaint, or the defense, and pointing out the facts which are controverted, the facts in issue. The Pleadings thus limit and define the issues and narrow the proofs. Pleadings serve as record notice to the court, to the parties, and to the world, of the material facts, both the controverted and the uncontroverted facts, sub- mitted for trial as a valid claim or defense.^ The con- troverted facts are known as the "facts in issue." By pleadings parties are prepared and protected against sur- prises and false proofs at trials, against the trial of claims or defenses invalid upon the face of the pleadings, against the trial of claims or defenses or facts, con- fessed by the pleadings, and against a second litigation upon facts once before solemnly adjudicated.^ Only 1 — Quin V. McMahon, 40 111. App. 2 — Chapman v. Weaver, 19 Ala. 593. 626. (30) BILLS IN EQUITY. 31 through the requirement of definite, written pleadings, can the invalidity of a claim or defense be discovered before trial. Before being subjected to the trouble and expense of a trial, parties are given opportunity to challenge, by demurrer or other objection, the validity upon its face, of any proposed claim or defense. The time old rule, that a decree must conform to the al- legations, pleadings, as well as to the proofs, of the parties, is not only one that justice requires, but one that necessity imposes upon the courts.^ § 41. Elements of a cause of action in Equity. In Equity, as in Common Law, a cause of action consists in genera] of a right in the complainant to a correspond- ing duty from the defendant and a breach of such right or duty by the defendant.^* At Common Law the right must be a legal, or common law right (one not recogniz- ed in Equity) ; and the right in an Equity cause of action must be a right recognized in a court of Equity. § 42. Rights always spring from facts, events. Eights are vested in persons, are over things or persons, and are originated, varied or terminated only by events ; and the nature of a right is ascertained by principles de- duced from the nature of persons and things and from the relations between them.* § 43. Events, facts, ultimate facts. An event is the outcome or conclusion indicated by one or more eviden- tiary facts. In the science of pleading the material facts, or events, which invest or divest rights, are known as the "ultimate facts," "transactions," "conclusions of fact," "operative facts," "propositions of fact." Plead- s—Crocket V. Lee, 7 Wheat. 522. See. 519. ■ 3a — 1 Chitty 216, 255; Story Eq. 4 — George H. Smith, Elements of PI. 5th Ed. sec. 241; 1 Cyc. PI. and Right and Law 2nd Ed. Callaghan Pr. p. 116; Pomeroy Code Bern. Chicago, p. 59. 32 EQUITY PLEADING AND PKACTICB. ings should not set forth evidentiary facts, but only the material facts, conclusions of fact, propositions of fact summarized from the evidence.*" The evidence produced at the trial, permits a full narration of the detailed facts as seen or heard by the witness. These details of evidence should support the summarized facts set forth in the pleadings. § 44. Definite pleadings required in equity. At com- mon law, the "common counts" declared upon by a plaintiff, and the "general issues" pleaded by a de- fendant, are so broad as to give practically no fair notice to the parties or to the court, of the true issues of fact to be tried. In equity pleadings, there are no "common counts" and no "general issues," and plead- ings must plead the definite material facts. § 45. Bill, petition, information. A suit in equity, if brought by a private person, is begun by a "Bill" or "Petition." If brought by the Attorney General, or by the State's Attorney, on behalf of the government or the people, the complaint is called an "Information." A bill in equity corresponds to a declaration at law, but it has an additional feature. Besides being a statement of a cause of action, the bill is also an examination of the defendant as a witness for the discovery of evidence from him, which is material to complainant's case. The stating part, the charging part, the interrogatory part of a bill in equity, all call for full answers with full de- tails. § 46. When suit begins, as against statute of limita- tion, or to constitute notice by lis pendens. Although we speak of beginning a suit by filing a Bill, or an Information; yet as against the running of a Statute of 4a— story Eq. PI. 5th £d. Sec 28. BILLS IN EQUITY. 33 Limitations, a suit is not considered as begun, in most states, until process or summons has been issued and in good faith delivered to the sheriff for proper service.'' And a suit is not considered as begun so as to be notice to the world by lis pendens (pendency of suit), until the bill is filed and summons is served, or appearance is entered.® § 47. Lis pendens, pendency of suit, as notice. When a suit in a court of record is really pending, (that is, after bill filed and summons served or appearance entered), such pendency of the suit is conclusively pre- sumed to be known to all the world. In other words, the world has constructive notice of the pendency of the suit; and therefore, anyone who purchases from either party to the suit, any property in litigation which is described and identified in the pleadings then on file, takes such property, subject to the grantor's rights as determined by the final decree in the suit.'' Some States by statute provide that a notice in writ- ing must be filed in the recorders ofiice in order to con- stitutes notice of suit pending. § 48. Bills axe original and not original: (1) Original, which begin a suit; and (2) Not Origi- nal, which are filed in a suit already begun. § 49. Original bills: (1) Bill of Complaint, wherein a complainant seeks a decree determining his claims against the defendant, such as a bill for specific performance, or a bill to fore- close a mortgage, or a bill for a breach of trust; 5— Collins V. Manville, 170 HI. 7— Pomeroy Eq. Sec. 22; Mc- 614. Gulre v. Gilbert, 270 111. 160. 6— Allison V. Drake, 145 IlL 500. E. P. & P.— 3 M EQUITY PLEADING AND PRACTICE. (2) Bill of Interpleader, wherein a complainant seeks a decree determining not his own claims, but those of rival claimants to property in his hands, in order thai he may safely turn over the property to the rightful owner. Where two or more persons claim the same property in different titles, whether legal or equitable, from one who is in the position of an innocent stake holder, the latter, if molested by a suit actually brought or threat- ened, may file his bill of interpleader for the purpose of compelling the claimants to litigate their rights at their own expense, and thus protect himself from all vexation and responsibility. Such bill will lie only where adverse titles or claims are derived from a common source, and where the com- plainant has no claim or interest in the subject-matter or controversy. (3) Bill of Certiorari, chiefly used to transfer a cause from an inferior court to a higher court (which in modern practice is accomplished in most cases by stat- utory appeals and writs of error) ; (4) Bill or Discovery (now almost obsolete because by statute in most states the parties to a suit can be compelled to testify), asking defendant not for relief, but to disclose facts in his knowledge, or to produce writings in his control; (5) Bill to Perpetuate Testimony for use in a future suit, OR Bill to Examine Witnesses De Bene Esse for use in a pending suit at law. These bills are for the pur- pose of obtaining and preserving evidence against prob- able loss,^ because of old age of witnesses, or because of illness, or because of intended absence of witness, or because there is only one witness to certain facts. The first three bills are known as bills praying for re- 8—1 Whitehouae Eq. Pr. 41. BILLS. 35 lief; the last two are known as bills not praying for relief. Original Billa s 5 1 i^ I Mi * fi So SB « 5»i I MM Is a^ a S ©■a s ss a ^ a ^5 : as 1 5i s |« ' si B' a S" _ So * « as i ■s la «. 8 !l I o B dJ A w ■n ^ » « j^ £ f. -a «' '■a * m e u a 3 a a PQ n CQ . . pq IN i=? n qe n a e 36 EQUITY PLEADING AND PBACTICB. § 50. Bills not original: (1) Supplemental Bill. 1, Setting forth material facts, which were omitted from an original bill, either because their importance was not understood, or because they were not known until after the bUl was filed; or 2, setting forth facts occurring after a bill is filod, and correcting the bill to agree with such facts; or 3, to introduce a new party made necessary since a bill was filed. A supplemental bill thus differs from an amend- ment to a bill, which is merely a correction of the original bill and is treated as part of the original bill. A supplemental bill is as an addition to an original bill, to supply some omission therein which cannot be supplied by amendment. Such new matters must be ultimate facts which are material to the original cause of action, and not merely evidential facts, supporting facts already put in issue by the original bill.®* 9a— Whltehouse Eq. Pr. 264; Story 10 Ed. Sec. 333^34-336. BILLS IN EQUITY. 87 (2) Ckoss-Bill, filed by a defendant against com- plainant, or against a co-defendant to avoid possible dismissal of the bill, and to gain certain affirmative relief in the same suit beyond a mere defense. (3) Bill to Impeach a Decbee, for fraud. (4) Bill to Suspend a Deckee, under certain circum- stances, or because of certain facts discovered after hearing of the cause, and after a decree. (5) Bill to Carey a Decree into Effect, when from neglect or other cause, it is impossible to do so without a further order of the court. (6) Bill or Revivor, to revive a suit which would abate by the death of a party, or for certain other rea- sons. Modem statutes, in the ease of the death of a party, provide that the suit may proceed against the representatives of the deceased, if the death is suggested upon the record by motion, naming the new parties. (7) Bill of Review, to review, alter, or reverse a decree either because of an error of law or because of new matters of evidence discovered after the decree. § 51. An original bill usually has nine formal parts: (1) The Address to the Court, by correct title of the court. For example: "To the Honorable Judges of the ... .Court of , In Chancery Sitting." (2) The Introductory Part, introducing the names, citizenship and abode of the complainants.* For example: "A. B., a citizen of, and residing in the County of , in the State of ," brings 9 — 1 Dan. 462; the names of the Such caption Is used only in the parties should not occur in the pleadings that follow after filing caption or title of an original bill, the bill. .'Jackson v. Ashton, 8 Pet. 148; See also U. S. Eq. Bule 2S. Gi;encer v. Goodlett, 104 Tenn. 648. 38 EQUITY PLEADING AND PEACTICE. this Bill of Complaint against tlie defendants herein- after named, (3) The Stating Past: stating the ultimate facts constituting the claim. "And the said A. B. complains and avers as follows:" Here follow statements, allegations, averments, of all ultimate, facts showing: (ay A right recognized by equity courts, and in a clearly described subject-matter, and a right possessed by complainant, and not barred by lack of residence, or by laches, or by statutes of limitation, or statute of frauds, nor by facts of estoppel, or of "unclean hands," nor by omission of "offer to do equity." (b) A clearly described wrong, or violation of that right, actual or threatened, not remediable at law, with the names of the defendants liable for doing or threat- ening the wrong. (o) A substantial injury, damage, or loss of property, actual or threatened, to complainant, or to his fam- ily, or to his property, growing out of the subject-matter of the suit. (d) The full names of all other persons as defend- ants, who have or claim to have, rights in the subject- matter of the suit, which rights may be affected by a decree. (e) The full names, citizenship and residence by state and county of all parties.^" If there are persons other than those named as defendants who appear to be proper (necessary) parties, the bill should state why they are not made parties, as that they are not within the juris- diction of the court, or cannot be made parties without ousting the jurisdiction." (f) All other principal facts necessary to justify an 10— tr. S. Eq. Eule 25; 1 Smith Ed., See. 20. Ch., 82; 1 Barber, 35; Story 5th 11— U. S. Eq. Bule 25. BILLS IK EQUITY. 39 equity court in granting any special interlocutory relief prayed for. In the federal courts, if any party be under any dis- ability, the fact must be stated;*^ also every bill brought by stockholders of a corporation against the corporation and other parties, founded upon rights which may prop- erly be asserted by the corporation, must under oath allege the plaintiff was a shareholder at the time of the transaction of which he complains, and must make the other certain allegations required by federal rule.^^ (4) The Confedeeating Paet, averring that "the de- fendants named, confederated with diverse other per- sons, unknown," and asking "leave to join such other persons when discovered." This part of the bill is obsolete, because now new parties can be added by amendment to the bill." (5) The Chahging Pakt, additional charges or state- ments, used for two purposes : (a) To anticipate the defenses expected in defend- ant's answer and to avoid or rebut them with counter- charges. This is a sort of special replication in anticipa- tion of the defense expected. For example: A charge "that defendant will pretend to have written release of all claims ; but plaintiff charg- es and avers that such pretended release was obtained by the fraudulent acts of said defendant, as follows, etc." This sort of a charging part is used for the purpose of avoiding later filing a special replication or (where special replications are abolished) an amendment to the bill, to meet a "efense expected in an answer. Com- plainant may omit this formal charging part, and use 12 TT. S. Eq. Kule 25. 14 — Superviaora v. Mississippi B. 13— u'. 8. Eq. Eule 27. B- Co., 21 lU. 367; Story 5th Ed.,, Sec. 29. 40 EQUITY PLEADING AND PRACTICE. the stating part of his bill for the same purpose.^"* (b) To charge or state some of the evidential facts ■which complainant relies on to prove the ultimate facts of his case previously averred in the stating part. This is done to elicit more exact discovery, to avoid vague and general answers, which might otherwise be given to the more general facts forming the stating part of a bill. A defendant must answer fully all facts al- leged, whether ultimate facts stated, or evidential facts charged.^® Thus in a charging part the evidential facts may repeat, in the form of items of evidence, the story told in the stating part; and further on, the interroga- tory part of the bill, in the form of a series of questions, may again repeat the story. Hence the criticism that a bill in chancery sometimes "is a story thrice told." Having once in the stating part of his bill alleged the necessary main facts constituting a complete cause of action, a pleader is not compelled to repeat, nor to add to, the story by a charging part charging any items of evidence, nor by a special interrogatory part asking a series of special interrogatories. He will omit these additional parts unless he feels sure that certain strong evidential facts charged, or certain pointed interroga- tories, cannot be evaded nor avoided by defendant with success. Since interrogatories must always be ba^-ed upon facts alleged in the bill, a pleader may need to charge certain evidential facts, if not already distinctly stated in the stating part, in order to form a basis for desired interrogatories. (6) The Jueisdiction Part, averring that complain- ant's case is within the jurisdiction of an equity court, and that except in a court of equity he has no remedy. This clause need not be used, and never was neces- sary. If the stating part of the bill does not show a 15— TT. S. Eq. Rule 25; Old U. 3. 16— Bank v. Levy, 3 Paige, N. Y. Eq. Eule 21. 606. BILLS IN EQUITY. 41 proper case for equity, this clause will not help, and its omission does no harm.^^ But in the federal courts because of their special and limited jurisdiction, the bill must contain a short and plain statement of the special federal grounds upon which the court's jurisdiction depends.'^ (7) The Intebeogatoey oe Discoveey Paet: (1) A general interrogation or prayer that defendants answer each matter stated in the bill "as fully as if specially interrogated thereon, not only according to positive knowledge, but upon their best recollection, information and belief;" to which general prayer to answer the bill, the pleader may add (2) a special prayer to answer a particular list of interrogatories, which the pleader may set forth in this part of the bill.^® The general prayer for answer is usually called "The General Interrogatory;" and the list of questions, if here included, is called "The Special Interrogatories." Whether this part of the bill consists of the general interrogatory alone, or of both the general and special interrogatories, it is the part of the bill which seeks and obtains discovery from the defendants, to disclose the full truth in their answer, as to all matters stated in the bill. And this is true whether the bill be one for discov- ery only, or a bill for both relief and discovery, as is more usual.^" The general interrogatory should never be omitted, but the special interrogatories may be omitted. This general prayer for a full answer, by its own force, compels the defendant to answer fully, to admit or to deny each material allegation of fact set forth in the bill, with full circumstances and details. A defendant may deny knowledge or information or recol- lection concerning a certain allegation, and declare him- 17_Botsford v. Beers, 11 Conn. 19—1 Dan. 486. 369; Old U. S Eq. Eule 21. 20— Hopkins v. Medley, 97 111. 18— U. S. Eq. Eule 25. 414. 42 EQTJITY PLEADING AND PRACTIOB. self unable to form any belief concerning it; and there- fore, he may deny such allegation, and call for strict proof thereof; but he must in this way, or by admission or denial, answer every allegation in the bill. The pecu- liar double nature of an answer in chancery, containing as it does, full responsive disclosures, as well as mat- ters of defense, so different from an answer at law, which need answer nothing so long as it sets up a de- fense — is due to this general comprehensive prayer for discovery in the chancery bill.^' The special interrogatories are used, if desired by the pleader, for the purpose of more exact discovery from the defendant as to facts which the pleader thinks can- not be evaded or escaped by the answer. Special inter- rogatories must be based upon matters of fact stated in either the stating part or the charging part of the bill. It should be noted that in the old federal equity prac- tice, the old rules, 39 and 40, dispensed with full answers where special interrogatories were omitted, if the an- swer filed, set forth a defense in bar or to the merits, such as might be set forth in a plea. Therefore, in the old federal equity practice, if a pleader desired full responsive disclosures in the answer, he must include a list of special interrogatories. Under the new federal practice, new rule 30 requires the defendant to set out his defense to each claim as- serted by the bill, specifically admitting or denying or explaining the facts upon which the plaintiff relies. Thus under the new rules, it would seem that full answers must be made to each allegation in the bill. Special in- terrogatories are separate from the bill. Rule 58 pro- vides that plaintiff may file interrogatories after filing his bill and defendant may file interrogatories after fil- 21— HopUiis y. Medley, 97 HL 414; 2 Dan. 246. BILLS IN EQUITY. 43 ing his answer, and such interrogatories filed by either party must be answered under oath. (8) The Pbayek foe Relief, wherein the complain- ant prays the court to order and decree the defendant to do, or refrain from doing, the certain things men- tioned in the prayer, and wherein complainant also Ijrays in general "for such other and further relief as may be just and equitable." If the specific prayer is erroneous, the court will, under the general prayer, grant such relief as may be proper upon the case stated in the bill.^^ In the ab- sence of a general prayer this might not be done.^^ But in federal practice only a statement of and prayer for the special relief desired, is necessary.^* A declaration at common law contains no prayer for relief. In equity the kind of relief desired must he prayed. In the federal courts alternative forms of relief may be pray- ed." If an injunction is sought, complainant in this part should specifically pray also for a decree, enjoining the particular acts complained of in the stating part of his bill; because the writ of injunction, if obtained, must follow this prayer and be limited by it. The general prayer for relief ordinarily is not a sufficient basis for a writ of injunction.^" A writ of ne exeat or any other special writ or order, if sought by complainant, should be prayed for in the prayer for relief.^'' But the statutes of many states permit the writ of ne exeat to issue upon special petition, whether or not prayed for in the biU. (9) Pbayee fob Pbocess or Summons, whereby com- plainant prays the court to grant issuance of process or 22 — 2 Dan. 489; Van Zanten v. 24—11. S. Eq. Eule 25. Van Zanten, 269 lU. 491. 25— U. 8. Eq. Eule 25. 23 — Driver v. Fortner, 5 Port. 26 — Story Eq. PI., Sec. 41. Ala. 9; Wilkin v. Wilkin, 1 Johns. 27— U. S. Eq. Eule 25. CTi. 111. 44 EQUITY PLEADING AND PKACTIOE. writ of summons, commanding the defendants to appear and answer the bill; and whereby complaint also prays the court to grant other special writs, if desired, like the writ of injunction, or the writ of ne exeat?^ The prayer for process must name the defendants against whom process or summons is to issue.^* The prayer for the writ of injunction should also in this part name or describe the persons against whom the writ is to issue. If any defendants are infants, or are otherwise under guardianship, the fact should be stated or recited, so the court may make order thereon as justice may re- quire upon the return of process.*** U. S. Equity Eule 25 makes it unnecessary to pray the court to grant issuance of process, or summons. In federal practice, this prayer for process may be omitted. § 52. Signature and Verification. The above is a brief summary of the nine parts usually found in a bill in chancery. To these nine parts may be added a signature part, being the signature of the complainants and of their counsel ; and there may also be added a verification part, being the affidavit verifying the truth of the facts mentioned in the bill, in cases where bills are required to be verified under oath. A bill is usually signed by complainant, and should always be signed by the solici- tor for the complainant.*^ When an injunction, restrain- ing order, or a writ of ne exeat, is prayed, the bill should be sworn to by the complainant. If special relief during the suit is desired in the federal courts, the biil must be sworn to by some one having knowledge of the facts upon which such relief is asked.*^ Also bills tie bene esse, bill to perpetuate testimony, bill of inter- pleader, bill of review, for newly discovered evidence, 28— story Eq. PL, Sec. 44. 31— TJ. S. Eq. Eule 24. 29—1 Smitli Ch. 85; 1 Barb. 38; 32— U. S. Eq. Eule 25. 30— U. S. Eq. Eule 25. BILLS IN EQUITY, 45 and a bill where a corporation is complainant, should be verified-^^* Otherwise, unless a statute requires it no oath to the bill is necessary if answer under oath is waived.^* § 53. Parts of a bill, which may be omitted. Though these nine parts usually occur in a bill as found in form books, nevertheless, — The confederacy part should be omitted; The charging part may be used or not, as deemed ad- visable by the pleader; The jurisdiction part should be omitted, except the special new kind of jurisdiction clause required by Fed- eral Equity Eule 25. The general interrogatory part must always be used Imt the special interrogatory part, only when deemed desirable by the pleader. In the United States equity courts, it would seem that special interrogatories can be filed by a plaintiff only by a separate additional plead- ing after the bill is filed.^^ 33— Fletcher Eq. PI. & Pr., Sec. 34— E Barb. 44. 83. 35— U. S. Eq. Eule 58. CHAPTEE TV. The Stating Paxt of a Bill § 54. The stating part of a bill. The stating part of a bill in chancery is the most important part of a bill, and an additional chapter is needed for fuller treatment of this part. § 55. The facts, the law, the court's mandate. Every case is equity involves (1) the court's determining and declaring the iacts,— findings or conclusions of fact; (2) the court's determining and declaring the legal effect, consequences of the facts, (the rights and duties growing out of the facts, the principles of law applying to the facts), findings or conclusions of law, upon the facts; (3) the court's enforcing, ordering the rights and duties growing out of the facts, enforcing the law of the facts. § 56. Principal duties of the trial lawyer. A careful lawyer will first possess himself of, and afterwards keep in hand, the clear evidence of all necessary facts constituting his claim or defense. He will then clearly plead the ultimate facts, or events which make his case or defense. He will then in court clearly prove the plead- ed facts by his evidence. He will then present to the judge a prepared decree finding those facts as pleaded, also finding the law (or rights and duties involved in those facts), and ordering the particular acts or conduct neces- sary to enforce such rights and ^duties. The careful law- yer will be sure he has the evidence of the necessary facts; he will be sure to plead the facts correctly; he will be sure to prove them by competent evidence; he will be sure his decree states the facts as findings, and also (46) THE STATING PABT OF A BILL. 4t states the findings of law, and that the ordering part enforces their legal consequences. These requirements are fundamental.^ It maj" be said that the most important work of a trial lawyer is the pleading and proving of facts. '^ The facts point out the law involved. Ex facto oritur jus. § 57. It may be well to draft the decree before the bill. Perhaps a lawyer should write a first draft of Lis decree before he draws his bill. After writing a decree finding the facts, finding the rights and duties arising from those facts, and ordering the acts to be done which enforce such rights, a lawyer will thoroughly understand his case; otherwise, he may not see his whole case, and mistakes may occur. The decree may as well be written first as last, and nothing prevents more mistakes or better clears the way. If drafted before entering upon the proofs, it often brings to light the need of additional or amended allegations in the bill, with which proofs must correspond, and thus mistakes or omissions are avoided. He must adopt a definite theory as to the nature and form of the relief he seeks.^'' This determines the nature and form of his action, and the nature and form of his pleading. Even in Equity there are distinct kinds of causes, with precedents and forms of pleading which can aid the pleader. § 58. Only ultimate facts should be pleaded. It is one of the principle rules of pleading, both at common law^ and in equity, that in stating the facts, only the main 25204 3-20 Davenport pps. 58 to 76 observed in practice as not to have 1 — Crocket v. Lee, 7 Wheat. 522. become frequently the subject of il- ia iChitty 215. lustration by decided cases; and 11) — 1 Chitty 215. (for that reason, probably) is little 2 — Andrew's Stephen on Pleading if at all noticed in the digests and 2nd Ed. p. 409-411. ' ' This is a rule treatises. It is 'however a rule of so elementary in its kind and so well great importance, from the im- 48 EQUITY PLEADING AND PEACTICE. events, the ultimate facts, the conclusions of fact, which constitute the complaint or defense should be alleged, without stating the details of fact upon which such conclusions rest.^ The following are merely exceptions to this rule: evidential facts may be stated in the charg- ing part of the bill;* and evidential facts must be pleaded to support allegations, of fraud, and of usury. Ultimate facts or conclusions of fact, are those facts which immediately lead to the conclusions of law in the case. They are the summarized events, or transactions which operate to invest a person with a right, or to vary a right or to end a right.^ An ultimate fact may be a simple fact, as that a person died; or it may be a complex fact or conclusion of fact based upon sub- ordinate evidential facts, as that the defendant sold to complainant certain chattels ; and an ultimate fact may be based upon subordinate facts and laws, like the fact of marriage,* ownership of real or personal prop- erty.''' It is a mistake to think that it is improper to plead conclusions of fact. It is improper to plead other- wise.'^" A conclusion of fact is often confused with a conclusion of law. They are entirely different things. § 58A. The Facts in Issue. The ultimate facts, (conclusions of fact, or propositions of fact) as to which the parties by their pleadings stand in con- tradiction, are called the "points in issue" or the "facts in issue." The "facts in issue" do not de- note the details of fact, also controverted, which fluenee which it has on the general rora, 109 111. 165; Stone v. Ferry- character of English pleading; and 239 111. 606; Andrews Stephen's PI. it is this -which tends to pi event, 2nd Ed. p. 409, 411. that minuteness and prolixity of 4 — Bank v. Levy, 3 Paige, N. Y. detail, in which the allegations, 606. under other systems of judicature, 5 — Caywood v. Farrell, 175 111. are involved." 480; 12 Corp. Juris. 388. 3— Story's Eq. PI. Sec. 28; U. S. 6— Koch v. Arnold, 242 HI 208. Eq. Bule 25; Wilson v. Eggleston, 7 — 1 Encyc. PI. & Pr. 1045. 27 Mich. 257; Brown v. City of Au- 7a — Koch v. Arnold 242 111. 208. THE STATING PART OF A BILL. 49 later will be given in evidence to establish or defeat the "facts in issue." The common law system of pleading defined the issues with precision, but issues must of necessity be produced even in equity pleading. Without issues, clearly defined, the admissibility of any particular piece of evidence cannot be tested, nor can A judgment be rightly given in any case.* § 58B. Statements in pleadings distinguished from statements of witness in testifying. Pleadings deal with statements of ultimate facts, conclusions of fact, which summarize the evidential facts. It is left for the evidence and to witnesses, to state the details of fact as actually seen and heard by them. Wit- nesses are not permitted to testify in the form of ultimate facts as set forth in the pleadings, nor to sum- marize the facts, nor to state conclusions of fact. Con- clusions of fact by a witness on the stand are objection- able. A pleading would state, for example, the con- clusion of fact "that the defendant made, executed and delivered a certain instrument." A witness testifying on the stand, however, will not be pennitted to say that the defendant made, executed and delivered the instrument." He must state the actual details of fact as he witnessed them, for example, that he saw the particular document in defendant's hands, saw the de- fendant sign his name thereto, and saw him then hand it to the complainant. § 580. Pleadings must state ultimate facts. Witnes- ses must not. It is a rule of pleaing that evidence shall not be pleaded. It is a rule of evidence that a witness shall not be asked the question in issue, the ultimate fact in issue.^' He is not to give his conclusions as to any fact in issue. It is for the jury and the chan- cellor to judge if the conclusions stated in the plead- 8 — Wm. Wills, Theory and Prac. 8a— Koch v. Arnold 242 111. 208. Evid. London p. 2, 39. B P. & P.— 4 50 EQUITY PLEADING AND PEACTICB. ings are proved by the details of fact as seen and heard by the witnesses. It is not possible to define with precision the degree of generality permissible in pleadings, nor the degree of particularity to be observed in presenting the evi- dence, since they vary according to the nature of the case; but this qualification does not affect the broad distinction between the "facts in issue" and the "evi- dentiary facts. "^ § 59. Conclusions of law, the legal rights and duties growing out of the facts, should seldom be alleged. The pleader should avoid stating the conclusions of law or legal rights and duties arising from the conclusions of fact, except only when necessary to add to the clearness of events stated, which warrant the conclusion of law. For Example : it is a proper conclusion of fact for the complainant to plead in his bill and for the court to find in its decree, that a certain note and a trust deed were executed; it is a conclusion of law for the court to find that the complainant has a lien by virtue of such trust deed upon the certain land as security for the payment of such notes. Upon the finding of certain conclusions of fact, in the ordinary divorce suit, the conclusion of law is that the complainant is entitled to a divorce. Legal conclusions, or findings of law, are for the court to make. A pleader should not state them unless the court might otherwise miss the legal effects of facts which are stated.^* Stating conclusions of law is sometimes neces- sary for clear pleading;" and if accompanied by the facts which warrant them, they do little harm. Courts encourage the pleading of the legal effect of instruments 9 — ^Wm. Wills, Theory and Prac. 409, 411. Evid. London p. 40 Gould, Com. 10 — 2 Dan. 22. Law PI. Chap. 3, Sec. 7, 8, 12. 11— Allen v. O 'Donald, 23 Fed. Phillips, Code PI. See. 185, 186. S73; Crane v. Shaefer, 140 lU. Andrew Stephens PI. 2nd Ed. p. App. 647. THE STATING PART OF A BILiL. 51 rather than pleading them in words and figures fully. But copies of the instruments should also be made a part of the bill by reference. § 60. Exhibits should be annexed. If a bill makes an instrument a part thereof without annexing a copy, or setting forth the contents, it is bad on demurrer.^^ The substance of an exhibit should be set forth, even if the exhibit is annexed. Exhibits forming part of the bill will aid defective statements in the bill.^* § 61. The allegations are the foundations of the proofs and of the decree. A party cannot have relief upon a case not stated in his bill. All ultimate facts intended to be proved must be alleged; otherwise evi- dence cannot be received of the facts.^* Secundum al- legata et probata; the decree in the case must corre- spond with the allegations and the proofs.*^ § 62. All necessary facts should be averred, clearly, and positively. The party seeking the aid of a court of equity, in his bill must aver all the facts necessary to entitle him to its aid. His right, title and interest, should be stated with accuracy and clearness. The citizenship and residence, by state and county, of com- plainants and defendants, should be distinctly averred, because it is usually one of the grounds of the court's jurisdiction.^® If an allegation be capable of two mean- ings, the one most unfavorable to the pleader will be adopted. The material allegations of the bill must be clearly and positively averred, and in a traversable 12 — Martin v. McBryde, 3 Ired. 14 — Crockett v. Lee, 7 Wheat. Ch. 531. 522; Story's Eq. PI. Sec. 28. 13 — BeuneBon v. Savage, 130 HI. 15 — Gutch Brew. Co. v. Fish- 352. beck, 41 111. App. 400. 16— Turner v. Bank, 4 Dall. 8. 52 EQUITY PLEADING AND PRACTICE. form and not "upon information," if they are peculiarly within the knowledge of the party pleading.^'' § 63. Allegations upon information aJid belief. If the allegations are not presumptively within the knowledge of the party pleading, they may be pleaded upon infor- mation and belief. An allegation based upon informa- tion should allege complainant's belief in the truth of the information, and base the statement of facts upon such belief.^''* For example, "Complainant is informed and believes, and therefore states the fact to be, that defendant on May 7, 1911, did sign, seal and deliver," etc. § 64. Allegations of time and place. The time and place of each fact need not be stated in equity unless the time or the place is material. At common law, time and place must be alleged with every occurrence of fact, else the pleading would be bad in form. § 65. Allegation of defendant's claims. Where the extent and character of defendant's rights are more within the knowledge of defendant, it is sufficient to al- lege generally that the defendant has or claims to have, some rights in the subject-matter of the suit, the precise nature of which is unknown to complainant, leaving it to the defendant to disclose in his answer the nature and extent of such rights. § 66. Bill must cover entire controversy. The bill must cover the whole subject in dispute so as not to expose the defendant to be harrassed by another suit when one suit may suffice.^® 17 — McConnoughy v. Jackson, 101 523. Calif. 265. 18— Purefoy v. Purefoy, 1 Vern. 17a— Sandifer v. Sandifer, 229 lU. 29; 1 Barb. 40. THE STATING PAKT OP A BHiL. 53 § 67. Offer to do equity. Complainant must allege in his bill that he has done or is ready to perform, every act necessary to entitle him to the relief he seeks; or he should state a sufficient excuse for its non-perform- ance. It is a maxim of equity that he who seeks equity must do equity. In stating his offer to do equity the pleader should set forth precisely the things he offers to do. § 68. Bill should not impute laches. When a bill is filed long after the cause of action accrued, the facts relied upon as excusing the delay must be set forth in the bill; otherwise the bill will impute laches; and may be attacked by demurrer or by plea, or by special state- ments in an answer, mentioning the laches, or the court of its own motion may refuse to consider the case.^* § 69. Basing suit on aJtemative grounds. The stating part, may base the cause of action upon alternative grounds, if the true facts are not known to complainant, so that if one ground fails, complainant may rely upon the other, and these two grounds may be inconsistent with each other.^" § 70. Evidential facts and not general charges should be pleaded to allege fraud or usury. Where relief is sought on the ground of fraud or of usury, general charges should be followed by allegations in which the circumstances and facts upon which such charge is founded are fully and specifically stated. Fraud cannot be alleged by mere statements of conclusions or infer- ences, as for instance, the statement that the defendant obtained a certain property by ' ' fraud and misrepresen- 19— Sullivan v. Railroad, 94 U. S. 20— Varick v. Smith, 5 Paige Oh. 806. Eep. 137. 54 EQUITY PLEADING AND PBACTICB. tation."^' There must be a distinct averment of the facts and circumstances justifying the inference or conclusion of fraud, so that the court, if there were no appearance, could find from allegations without proofs, supporting them, that the fraud had been committed, and so that the defendant may be able to answer and explain such facts and defend the charge. An allega- tion of fraud made upon information and belief cannot be sustained, unless the facts upon which the belief is founded are stated in the pleading. § 71. Oyer in equity. The practice of allowing oyer is unusual in chancery.^* Oyer means the right to see, or hear read, some document in court as a part of the pleadings. In federal practice the court rules pro- vide for compelling the production or inspection of documents which are in the control of either party and contain material evidence. § 72. In federal practice, charging part, may be placed in stating part of bill. In the federal equity practice, old U. S. Equity Rule 21 permitted the charg- ing part of the bill to be omitted, and permitted such charging part of the bill to be incorporated in the stat- ing part of the bill. That is to say, the old federal rule permitted the complainant in the stating part of his bill to anticipate an expected defense, and to allege any matter necessary to explain or avoid such expected de- fense. There is nothing in the new rules to prevent such practice; and in any other jurisdiction it can do no harm to incorporate a charging part in the stating part of the bill. Of course the complainant may, if he chooses, omit to anticipate a defense or to include a charging part. He may wait until the answer is filed El— Vogel V. Bipper, 34 111. 100. 22— Hamilton v. Downer, 152 lU 661. THE STATING PAST OF A BILiL. 55 which states the defense, and then he may meet such new matter of defense by filing an amendment to the bill. In federal practice under new rule 31 any new or aflSrmative matter in an answer is deemed to be denied by plaintiff without a replication, and without his filing an amendment of his bill to meet such new matter ; and the cause is deemed at issue by the filing of the answer. § 73. Multifariousness. The bill must not be multi- farious. A bill is multifarious (1) when it unites several distinct and incongruous matters between the same parties; or (2) when it unites several matters, in all of which the complainants on the one side, or the defend- ants on the otier side do not have a joint and common interest.** A bill to avoid a multiplicity of suits is an exception to the general rule against multifariousness. The rule itself is no hard and fast rule. It rests somewhat upon the discretion of the court, depending upon consider- ations of convenience to the court, avoidance of a multi- plicity of suits, and avoidance of hardship to the parties.^* The objection of multifariousness is waived by an- swering and submitting to trial on the merits.*" § 74. Impertinence. A bill must not contain imperti- nent matter. Impertinent mater is that which is wholly irrelevant and unnecessary, and thus tends to make the record improperly voluminous and expensive.*® § 75. Scandal. A bill should not contain scandalous matter. Scandalous matter is irrelevant or impertinent matter which is also libelous or defamatory in character. 23— Metcalf v. Cady, 90 Mass. 24^-tr. S. Eq. Eule 26. 587; Walker v. Powers, 104 V. S. 25— Bird v. Bird, 218 lU. 158. 245; Story's Eq. PI. See. 271; Gage 26 — Woods v. Morrell, 1 Johns. V. Tarker, 103 lU. 528. Ch. 103. 56 EQUITY PLEADING AND PKACTICE. In order to be objectionable the matter must be irrele- vant as well as scandalous, for it may often be neces- sary, in case of fraud, to make allegations very inju- rious to the character of the parties concerned; "nothing vvhich is positively relevant to the merits of the cause., however harsh or gross the charge may be, can be cor- rectly treated as scandalous. "^'^ The objection that a bill is impertinent or scandalous, is made by exceptions in writing which point out the scandalous matter. The objection is not made by filing a demurrer. These exceptions are filed to the bill, and state what parts are objected to on these grounds." ^^ When such objection is made the court refers the mat- ter to a master in chancery for investigation, and if the charge is sustained, impertinent and scandalous matter is ordered to be stricken out and the plaintiff will be required to pay costs. If the scandal is gross and wanton, the counsel who is guilty of it may also be subject to the discipline of the court for a violation of his duty as an officer of the court. Any un- necessary allegation bearing cruelly upon the moral character of an individual is scandalous. Neither suit- ors nor solicitors should be allowed to manifest their personal feelings upon the records of the court.^® In the federal practice the right to except to pleadings for scandal or for impertinence does not obtain, but the court may itself or upon motion, strike out any redun- dant, impertinent or scandalous matter.*" 27— story's Eq. PI. Sec. 269. 29— CofSn v. Cooper, 6 Ves. 514. 28 — Stirratt v. Excelsior Mfg. Co., 30 — U. S. Eq. Eule 21. 44 Eed. Kep. 142. CHAPTEE V. Bills not Original § 76. Supplemental bills. A supplemental bill is one brought by the plaintiff in the original suit to introduce some material fact affecting the case which has occurred since the beginning of the suit ; or to introduce some new party who has become necessary since the beginning of the suit.^ If the original bill shows no ground for relief, the defect cannot be cured by a supplemental bill setting up matters that have arisen since the commence- ment of the suit.^ Matters which occurred prior to the filing of the bill and not stated therein should be brought into the suit by amendment to the bill;^ but matters arising subse- quent to the filing of the original bill must be introduced by a supplemental bill. The supplemental bill must be germane to the original bill. In federal practice, upon the application of either party the court may permit him to file a supplemental pleading alleging material facts occurring after his former pleading, or of which he was ignorant when it was made.* § 77. BiUs of revivor. A bill of revivor is the old mode of reviving a suit which otherwise would abate by the death of the plaintiff or the defendant. In many states a bill to revive on account of death is not neces- sary, it being provided by statute, that representatives of deceased parties may be made parties by suggesting 1 — Wilder v. Keeler, 3 Paige 3 — See page 36. Ch. 164. 4— U. S. Eq. Rule 34. 2— Hughes V. Came, 135 ni. 519. (57) 58 EQUITY PLEADING AND PEACTIOE. the deaths and the names of the representatives of the deceased, upon the records of the court, when the case will proceed as if such representatives had originally been made parties to the suit. If a complainant sug- gests the death and the name of the legal representa- tive of a necessary defendant, he should obtain an order of court for a summons requiring such person to appear and defend the action. In the federal courts, in the event of the death of either party, the court may, in a proper case, upon mo- tion, order the suit to be revived by the substitution of the proper parties.'' § 78. Bill of review.* A bill of review is in the na- ture of a writ of error, and its object is to procure in the same court which tried the case, an examination, or modification, or reversal, of a decree rendered upon a former bill. It lies only after the term of court, at which the final decree was entered, has expired. Until the term has passed, a court of chancery has full power over all the proceedings in the case, and can alter or annul any decree or order and can, on mere motion re- hear the case, if it thinks proper to do so. A bill of review must be brought in the same court in which the final decree in the original suit was passed. Leave of court must be obtained before a bill of review can be filed. It lies for error apparent on the record, or for material evidence not known in time for its use at the former trial and not discoverable by reasonable diligence at that time. A bill of review, for error apparent on the face of the record, must be for an error in law, arising out of the facts admitted by the pleadings or recited in the decree itself, as settled, declared, or allowed, by the 5— n. S. Eq. Bule 45. 6— Sbiras Eq. Prae. BIULS NOT OEIGINAL. 59 court. It cannot be sustained upon the ground that the court has decided wrongfully upon a question of fact; hut if there has been an erroneous application of law to the facts found by a decree, the court may review, or re- verse the decree, upon a bill of review. Errors of law against which relief can be had by a bill of review, must be such as arise rather from obvious mistake or inadver- tence, appearing on the face of the decree, or at least of record, than from alleged error in the deliberate judg- ment of the chancellor on a debatable question of law or equitable right.'' It cannot be brought upon the ground that the former decree was not supported by the evidence,® and no evidence is admissable as to the facts established by the original decree. The error must appear on the face of the pleadings and decree, for the evidence in the case at large cannot be looked into, to ascertain whether the court misunderstood the facts. That is the proper province of the court of appeal. But, taking the facts to be as they are stated to be on the face of the decree, it must appear that the court has erred in point of law. Upon a bill of review a court will revise, correct, or reverse, its own decree, for an erroneous application of law to the facts found, whenever a court of appeals would do so for the same cause. § 79. A petition for rehearing like a bUl of review. The only distinction between a petition for a rehearing in chancery, and a bill of review for the same cause, is, that the former is to be invoked before the enrollment of the decree and the adjournment of the term, while the latter is available after the decree and adjournment of the term. In the federal courts if no appeal lies 7— Caller t. Shields, 2 Stewart & &— WMtiiig v. Bank, 13 Pet. 6. Port. 417. 60 EQuirr pleading and pbacticb. from the decree, then a petition for rehearing may be filed during the next term after decree.*' § 80. Cross-bill. A cross-bill is one brought by a de- fendant against the complainant in the same suit, or against other defendants, or against both, concerning the matters in question in the original bill, for the pur- pose of obtaining discovery, or for affirmative relief. As a rule defendant must answer before filing his cross-bill. Under an original bill the court must simply grant or deny the relief asked for by the plaintiff. As a rule it cannot proceed, after denying relief to the plaintiff, to give any specific relief to the defendant, although the justice of the case might manifestly require it. The main purpose of a cross-bill by defendant is to ask for such relief as the case may show him to be entitled to, unless upon the original bill the court can proceed to give defendant the proper relief.® It is unnecessary to file a cross-bill where (on the failure of a bill for specific performance) it appears that earnest-money has been paid by the defendant; and a decree for the repayment of the earnest-money will bo given without the filing of a cross-bill ;io also, upon a bill for an accounting, the party against whom the bal- ance is found will be decreed to pay it without a cross- bill." Where the matter of a cross-bill constitutes a defense and at the same time entitles defendant to relief beyond the dismissal of the bill, and such relief cannot be had by answer, a cross-bill is proper.^^ A cross-bill seeks and secures relief to the defendant, beyond a mere success- full defense.^* 8a— Eq. Hule 69. 397. 9— Shields v. Bush, 189 Dl. 534. 12— Paxton v. Staekhouse, 4 Kulp. 10 — Adams v. Valentine, 33 Fed. (Pa.) 403. Kep. 1. 13— Wilcox V. Allen, 36 Mieh. 160. 11 — Acme V. McLure, 41 HI. App. BILLS NOT OEIGINAL. 61 In the federal courts, a cross-bill is unnecessary to state a counter-claim or to state a set-off. There the answer must state in short and simple form any counter- claim arising out of the transaction which is the subject- matter of the suit, and the answer may without cross- bill, set forth any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and the court may thereupon grant afSrmative relief.^* § 81. Cross-bill must be germane. A crossbill must contain matter germane to the original bill and must not contradict allegations in the answer filed by the same party. § 82. Cross-bill to aver defense arising after bill filed. A defendant, to take advantage of a defense arising pendente lite, must assert it in the form of a cross-bill praying a dismissal of the original; this procedure taking the place of a plea puis darrein continuance (a plea filed after issue joined), at common law.^^ By strict practice, this course must also be taken where the defense affects only a co-defendant. '** In the federal practice such a defense may be set forth in a supplemental pleading.^'' § 83. Cross-bill unnecessary if answer attains relief. In some states defendants claiming liens, as in a fore- closure suit, need not file cross-bills to have the court determine their rights to share in the surplus proceeds of sale. Such rights may be determined upon answers setting them forth,^* whether such liens are junior mortgage liens, judgment liens, mechanic's liens, or 14_U. S. Eq. Eule 30. Sprague, 21 N. J. Eq. 530. 15— Mills V. Larrence, 186 HI. 17— U. S. Eq. Rule 34. 635; 2 Dan 102. 18 — Gouwens v. Gouwens, 222 III. 16— MetropoUs National Bank v. 223; 78 N. E. 597. 62 EQUITY PLBADINQ AND PKACTIOB, otherwise. In these jurisdictions defendants are en- titled, without filing a cross-bill, to have the court de- termine the existence and priority of such liens, and to order the premises sold for the benefit of complainant, and the proceeds of sale, after being applied to plain- tiff's debt, to be distributed among defendant lienors according to the priority of their liens. But a cross- bill is necessary, if a junior lienor desires affirmative relief beyond merely sharing in the surplus proceeds of sale, such as a clause in the decree, ordering a sale for his benefit, too, if his debt is not also paid by a short day, as well as the debt of complainant. In the federal practice the defendant must in his an- swer, without cross-bill, set forth any set-off, or any counter-claim, which might be the subject of an inde- pendent suit against the plaintiff, and such answer has the same effect as a cross-suit.^* § 84. Defendants to cross-bill. A cross-bill requires the same parties defendant as would an original bill for the same purpose. Whether the cross-bill must fail if all necessary parties to it are not already parties to the original suit, or whether new and necessary parties may be brought in on the cross-bill, is a question upon which the practice is not uniform. In some jurisdictions it is held that new parties cannot be introduced by a cross-bill;^" in others the practice of bringing in new parties is provided for by statute.^^ Plaintiff in the original bill should be a necessary defendant in a cross- bill, although it be directed mainly against a co-defend- ant; becanse a controversy between defendants cannot be made the ground of a cross-bill, unless its settlement 19— TJ. S. Bq. Eule 30. 32; Shields v. Barrow, 17 Howard 20— Wright v. Prank, 61 Miss, 130. 21— m. Statutes, Chun. BILiB NOT OBIGINALi. 63 is necessary to a complete decree on the case made by the bm.2* § 85. Form of cross-bill. A cross-bill must have all the essential parts of an original bill. It must be so framed that both original and cross causes may be heard together, and a single decree entered.^^ Formerly a cross-bill, in addition to having all the parts of an original bill for the same purpose, stated so much of the original bill, as to show its parties, scope and ob- ject, and what proceedings had been had thereon.^* But this requirement was due to the fact that a cross- bill in England might be filed in a court other than the one in which the original suit was pending. In the fed- eral courts and in most states a cross-bill must be filed in the same court as the original; and it is necessary to set forth only so much of the original bill and the pro- ceedings thereon as may be necessary to explain the right sought to be brought before the court.^^ § 86. Pleading to cross-bill. A defendant to both orig- inal and cross-bill must interpose his defense separately to each. The modes and grounds of defense are sub- stantially the same as to an original bill. In the federal practice, a cross-claim in an answer is put in issue by a special reply,^* which must be filed within ten days after answer filed. § 87. Bills to impeach or suspend a decree, or to carry a decree into effect. Fraud in procuring a decree is the usual ground for impeaching and setting the decree aside, and a bill is proper for the purpose even after the term has passed in which the decree was entered. 22_Weaver v. Alter, 3 Woods, 24^Mitfora Eq. PI. 75. 152. 25 — Neal v. Foster, 34 Fed. 496. 23— McDougald v. Dougherty, 14 26— U. S. Eq. Eule 31. Ga. 674. 64 EQUITY PLEADING AND PRACTICE. After hearing and decree, certain circumstances, such as newly discovered evidence, will justify a bill to sus- pend a decree. Circumstances requiring further or- ders of the court to carry a prior decree into effect, raay he brought to the attention of the court by a bill to carry into effect the prior decree. BILLS NOT OEIGINAIi. 65 Bills not Original ■si F» 01 ^ o «J o S a -^ at! o 'O a ^ 6i fcS 9 'O a '-S oft „-S P — ^Om Jh ^jj sSs->>gS>. oft C S,£ og „_ o53^£ia P OS p ^ 1 ^ . l-i N W ■* rH W M ■*' lH W CO ^ US (D rH Ci CO ■'J'' lO ■) OJ ^ p a a e^ (U ti dj fl) M «2« OS 88 EQUITY PLEADING AND PRACTICE. § 130. What is conceded upon demurrer. In hearing a demurrer, the argument is strictly confined to the case as stated in the bill ; and all matters well pleaded in the bill are deemed to be true." But where a bill avers any fact falsely and contrary to what the court is presumed to know as matter of judicial notice, such averment, upon arguing a demurrer to the bill, is considered a nuUity.^^ And a demurrer does not concede any matter of law which may be suggested in the bill, or may be inferred from the facts stated in the bill ;^^ nor any fact that is not specifically alleged ;^^ nor statements of ar- guments,"* nor allegations "that complainant is in- formed and believes that"^® but positive allegations that complainant is informed, and believes, and there- fore states the fact to be that" — , are conceded.^* § 131. A speaking demurrer. A demurrer cannot in- voke in its support any fact whatever which is not contained in the bill,^^ except those facts of which the court takes judicial notice.^* When the demurrer de- pends upon some fact not appearing in the bill, it is called a speaking demurrer, and will be overruled. It is the function of a plea or answer to expressly set forth defensive facts not appearing in the bill. A demurrer cannot do so, either expressly or in argument. § 132. How demurrer may be waived. A defendant who does not bring his demurrer to a hearing therebj waives it.^* A defendant who files his plea, or answer, 11 — East India Co. v. Einchman, 111. 655. 1 Vesey, Jr. 289. 15 — Murphy v. Murphy, 189 HI 12—2 Dan. 23. 360. 13 — ^Dillon V. Barnard, 21 Wall. 16 — Bromley Carpet Co. v. Field, 430. 88 111. App. 228. 14 — ^Am. Loan & Trust Co. v. E. 17 — Story, Sec. -448. E. Co., 157 111. 641. 18—2 Dan. 23-72. 14a — Johnaon v. Roberts, 102 19 — ^Long y. rox, 100 HL 4S. DEMUBEERS. 89 after his demurrer has heen overruled (unless the an- swer specifically mentions a ground of demurrer and reserves the demurrer as a defense), thereby waives the right to assign the overruling of his demurrer as error, and thus he waives the demurrer, unless the bill fails to set forth a cause of action, or unless the case presents jurisdictional defects.^" § 133. Effect of sustaining a demurrer. A demurrer to the whole bill, if sustained, results in a decree dis- missing the biU, unless the court can see that the defects of the bill can be cured by amendment, in which case leave to amend will be given. If leave to amend is not requested the bill is dismissed. § 134. Effect of overruling a demurrer. If a demurrer is overruled, the defendant who demurred is ruled to answer. If he does not answer, the bill is taken as con- fessed. An order overruling a demurrer is not a final order; it merely determines there is sufficient equity stated in the bill to require an answer. § 134A. Signature and certification of demurrer. The demurrer is usually signed by the solicitor; and in some jurisdictions he is required to certify that the demurrer is filed in good faith and not for delay. 20 — Baumgartner v. Brandt, 207 UL 345 ; Cline v. Cline, 204 111. 130. CHAPTEE Xn. Pleas § 135. Plea defined. A plea is a short pleading of a single defense, instead of an answer with full dis- covery besides defenses. A plea either affirms against the bill, a single matter of fact as a defense, or it denies a single essential matter of fact alleged in the bill, or it both affirms a defense anticipated by the bill and denies the statements in the bill impeaching such expected de- fense. The defense raised by a plea, may be a dilatory defense, which abates, defeats, that particular court action only; or it may be a defense in bar of any suit, or one which upon the merits ends the controversy for all time. Thus, a plea always delays, and if successful, avoids, a full answer to the bill. § 136. Plea and demurrer compared; function of a plea. A demurrer asserts that the facts in the bill even if true, as stated, do not constitute a correct, lawful case. A plea asserts that the true facts, in at least one respect, are not fairly stated in the bill. The main pur- pose of a plea in chancery, is to save the delay and ex- pense of going into the case at large when some defen- sive ground of fact exists, which when proved to the court, will either abate the suit, or bar recovery therein. It saves defendant from the difficult, tedious, and self- betraying answer in chancery. Unlike an answer, a plea admits all allegations in the bill which are not expressly denied in the plea.^ 1— McCIoskey v. Barr, 38 Fed. 165. 90 PT.KAS. 91 § 137. Forms of pleas. According to manner and form of statement, pleas are denominated as: (1) Puke oe Affiemative Pleas, which affirm or allege as a single ground of defense, new matters of fast by way of confession and avoidance. For example, a plea of the facts showing that plaintiff has given a release of the claim.^ (2) Negath^e Pl-eas, which negative (deny), a single essential allegation of fact appearing in the bill.^ For example, a plea denying that complainant "re- sided in said state one year before filing his bill of com- plaint" (where such residence is alleged in the bill, and is required by statute) ; or a plea denying that com- plainant is the legal or equitable owner of the real estate as stated in the bill, and which is the subject-matter of the suit; or a plea denying any other fact necessary to establish complainant's case. A denial of a legal con- clusion is a nullity. (3) Anomalous Pleas, (affirmative and negative pleas), which affirm the defense anticipated by the bill, and negative the allegations in the bill which would vitiate the expected defense. For example, where the bill charges that the expected defense of the statute of limitations is avoided by the defendant's renewed promise to pay; then if defendant wishes to file a plea making this expected defense, his plea must nevertheless affirmatively set forth the statute of limitations, and expressly deny making any new promise to pay, at any time since the time the statute became a bar to the claim. Because, expressly asserting the statute, and expressly denying the alleged new promise to pay, are both necessary to make a single complete defense to such allegations in a bill; and be- cause, unlike an answer, a plea is deemed to admit every a— 8toi7 Eq. PL 660. 3—2 DanieU Ch. Pr. 98. 92 EQUITY PLEADING AND PRACTICE. allegation of the bill unless expressly denied in the plea.'^ Defenses such as laches, statute of limitations, and statute of frauds, are in some jurisdictions, deemed to be waived unless the pleader expressly sets them forth in his demurrer, or in his plea, or in his answer." Moreover, in anomalous pleas, the affirming of the expected defense, and the denial of the statements in the bill impeaching that defense, should both appear in two places, (1) among the general averments, constituting the formal body of the plea itself, and (2) as a part of an "answer in support" of such a plea. Charges in a bill impeaching an anticipated defense always compel the defendant to file with a plea a "supporting answer" giving discovery in answer to each and all evidential facts and statements in the bill impeaching the good faith and truth of such expected defense; thus it is seen that an anomalous plea is always "a plea support- ed by answer." Though contained in a single pleading, the body of the plea, and the accompanying answer are distinct and separate parts ; and the body of' an anoma- lous plea, should both affirm the defense and deny the impeaching charges, independently of the denials to the bill also particularly set forth in the accompanying sup- porting answer.® § 138. Pleas supported by answer. If defendant files a good plea, he always saves himself from a general and full answer to the bill. But sometimes even a plea is required to include a short answer. If a plea sets up a defensive ground of fact, regarding which the bill has charged particular evidential facts and circumstances, as avoiding and impeaching such expected defense, then 4 — McCloskey v. Barr, 38 Fed. Kerfoot v. Billings, 160 111. 563. 165, 171. 6— Al'.er, v. Eandolph, 4 Johns. 5— Fletcher Eq. PI. See. 275. Ch. N. Y. 693. PLEAS. 93 the plea, whether an affirmative plea, or a negative plea, or an anomalous plea, must also be accompanied by so much of an answer to the bill, as will give discovery in answer to these impeaching evidential facts and cir- cumstances in the hill bearing on the defense pleaded. § 139. Answer in support carefully limited. Care must be taken that such answer in support of a plea does not answer the bill beyond the defensive ground of facts covered by the plea, nor beyond matters strictly responsive to the allegations, charges, or interrogatories, on that subject in the bill ; because in some states an un- necessary answer, with or after a plea, overrules, waives, a plea. § 140. Grounds of pleas. As to their grounds, pleas are classed as: 1. Pleas to the jurisdiction of the court, over the sub- ject matter, or over the parties. 2. Pleas as to the parties, for non-joinder, misjoinder, or want of capacity. 3. Pleas in bar of the remedy, by statute of limitation, statute of frauds, res adjudicata, another suit pending, laches, release. 4. Pleas to the merits, or facts showing the true mer- its are not as stated in the bill and are in favor of de- fendant. These general grounds easily suggest themselves from the author's classification of defenses to actions. The first two classes are also known as pleas dilatory or in abatement, and the last two, as pleas in bar or to the merits. § 141. Pleas to jurisdiction must give better jurisdic- tion. Pleas to the jurisdiction must show what court 94 EQuirr pleading and practice. has proper jurisdiction to give a complete remedy^ Pleas as to defects as to parties, must point out the proper parties. 7—2 Dan. 139 PLEAS. 96 Different Grounds of Fleas J.5«! So.* to. I i 3 s S g OB O 8 5 •°K b fc. n n pq fi3 1= la II " 5-003 O oj ■*"^ CO Sao a *a as fca 96 EQUITY PLEADING AND PRACTICE. § 142. In federal courts the separate plea is abolished. In the federal practice, the plea as a separate pleading is abolished, and every defense heretofore presentable by plea must be made in the answer; but it may be separately heard and disposed of before the trial of the principal case, in the discretion of the court.* § 143. Testing the legal sufficiency of a plea. A plea in equity is not spoken of as being demurrable, the word, demurrer being limited to apply to demurrers to bills. If complainant thinks a plea filed, does not set forth a good defense in equity, he does not "demur;" he moves the court to "set the cause down for hearing, as to the sufficiency of the plea." When thus set down for argu- ment, the truth of the facts stated in the plea is con- ceded for the time being. If the plea is adjudged good, the plaintiff must then take issue upon the plea by filing a replication to it. If the plea is adjudged bad, the de- fendant will then still be allowed to file an answer to the bill.9 In the federal practice, the logical sufficiency of an affirmative plea, as set forth in an answer, may be tested by a motion to strike out.^" § 144. Trial of case upon plea and replication. If the plaintiff takes issue on a plea, by filing a replication to it, he thereby admits its sufficiency as a pleading to his bill; and the only question then open is the truth of the facts in the plea, which will be determined by trial and evidence." Upon trial and evidence, the decision of the court depends upon the nature and extent of the issues and defense made by the plea; as a rule the plea ends the suit. 8— TJ. S. Eq. Eule 29. 10— U. 8. Eq. Eule 33. 9 — Ehode Island v. Mas8., 14 11 — Bean v. Clark, 30 Fed. Bep. Peters 210. 225. PLEAS. 97 In the federal practice the function and effect of a plea for many years has been obscured if not destroyed by the federal courts' interpretation of old rules 33 and 34. Upon trial and evidence upon a plea, if the iindin:i, was for the defendant, it availed him ; but if the finding- was for the plaintiff, the only effect in any event was that defendant must be allowed to answer over.^- Thus the plea in the federal courts was a sure instrument of delay for the defendant and was of no avail to plaintiff. It may be for this reason that new federal rule 29 abolishes the separate plea and makes it presentable only by answer. The chief function of a plea is to avoid the long and difficult answer as well as the long trial there- on, by presenting instead of an answer, a single com- plete defense of fact by way of a separate plea and trial thereon. A plea, being simply one of the complete defenses to an entire suit, could always in regular chancery practice, be set forth with other defenses, in an answer; and it always was proper to try a plea before trial of the other issues made by an answer. The plea and the demurrer are more useful as separate pleadings, than as part of an answer which might be unnecessary. In equity instead of using a "plea puis dareign con- tinuance," (as at common law) to set forth a defense which arose pending the suit and after issue joined, it is the proper practice to use a cross-bill to set up such defense.^^* § 145. Pleas verified. Where a plea is accompanied by answer, it must be put in upon oath. Pleas in bar upon matter of fact, must be verified upon oath. 12— Westervelt v. Library Bu v. Kittsor, 120 XJ. S. 303; Old TJ. reau, 118 Fed. 824; Dalzell v. Due- S. Eq. EuIps 33 and 34. ber Mfg. Co., 149 U. S. 315, Far.ej 12a— 2 Dan. Ch. Pr. 102. E. P. & P.— 7 98 EQUITY PLEADING AND PBAOTIOE. § 146. Plea may be waived. A plea is waived by going to answer and hearing on the general merits of the cause.'' § 146A. Signature and Verification of Pleas. Different jurisdictions may have special rules as to signing and verifying pleas; and it is well to examine the statutes and decisions of one's own state. On page 176 will be found the more usual rules regarding this subject. 13— MiUer v. Perks, 63 HI. App. 140. CHAPTER. XTTT. Disclaiiuer § 147. A disclaimer is a pleading whereby a defendant denies that he has or claims any right to the thing in demand, and renounces all claim thereto. It can hardly be called a mode of defense. It is available only to a defendant charged merely with having an interest in the subject-matter and not with a liability connected therewith. One cannot disclaim where he is charged with fraud or where a liability for costs re- mains. If defendant once had an interest with which he has parted, an answer is required to show plaintiff whom to make proper parties. Plaintiff may except to an improper disclaimer in the same manner as to an answer. In form a disclaimer begins and ends like an answer. A defendant cannot by a disclaimer prevent plaintiff from obtaining an answer from him, unless it is clear from the allegations in the bill, and from the statements in the disclaimer, that the defendant ought not after the disclaimer as made, be retained as a party to the suit.^ A disclaimer must be full and explicit, and be accom- panied by answers denying or avoiding facts in the bill which ought to be answered.' 1 — EUaworth t. Cartia, 10 Paige 2 — ^Worthington t. L«e, 2 Bland. Cai. N. T. 105. Md. «78. (99y CHAPTEE XrV. Answer § 148. The third mode of defense to a bill is by an- swer. If a defendant properly served with summons, does not demur to the bill, nor file a plea to it; or if a demurrer or plea filed, has been overruled, he files an answer, or the bill will be taken as confessed. § 149. Two-fold nature of answer, to give discovery, and to plead the defenses. The answer, after answering all statements, charges, and interrogatories in the bill, should then proceed further, and make averments or denials constituting the defenses.^ The defense may be based on mere denials of material allegations in the bill or it may consist of new facts averred, which counteract or avoid those stated in the bill. Thus an answer is always both an answer, giving the discovery demanded by the bill, and is also a pleading, showing the definite defenses.^ If in the bill of complaint an oath to the answer is not waived, then an answer under oath has a third ef feet and is threefold in its nature; such answer under oath stands as evidence in the case, equivalent to the evidence of one witness and on trial, such evidence in the answer can be overcome only by the evidence of more than one person. This may be done by the evidence of two persons, or one person and documentary evidence. How- ever, in the Federal courts under new rule 30 an answer is not under oath and has not the effect of such evidence. Several defenses may be pleaded in an answer, even alternative and inconsistent defenses.^* If the defense is 1— LangdeU 68. 2a— U. S. Eq. Bule 30. 2—2 Dan. 239. (100) ANSWER. 101 intended to be based upon a denial merely of certain averments of facts in the bill, then such intended denials must be explicitly stated in an answer. § 150. Allegations, unanswered in an answer, are deemed to be denied. In equity, upon answer filed, in most states, an allegation of the bill, unanswered by the answer, is deemed to be denied by the formal traverse at the close of the answer, unless facts essential to the defense stated, are evaded and not covered.^*" In federal practice, however, averments of the bill are deemed to be admitted by the answer unless the answer meets them.* § 151. When an answer is discovery, and when, it is mere pleading. The answers of the defendant to the statements, charges, and interrogatories of the bill, are called "discovery," and are ordinarily to be regarded as evidence in the case,^* unless a statute permits, and the bill also expressly permits an answer not under oath.^'' If answer under oath is thus expressly waived, then the answer, even if put in under oath, is a mere pleading, and not evidence.*"^ But even as a mere pleading, the answer may admit, as well as deny, allegations of fact in the bill. It is always a function of any pleading, to admits facts, or to deny facts, or to assert facts, material to the controversy, for the purpose of formulating the issues for trial. If answer under oath be not waived, the answer then must be under oath, and the averments of the answer, are then regarded as evidence, equal to that of one witness, to overcome which, complainant must introduce two witnesses, or one witness, and other evidence sufficient to preponderate. But new matter 2b— Higgins v. Curtiss, 82 HI. 28. See. 849. 3_XT. s. Equity Eule 30. 3b— 111. Stat. Chan. Sec. 20. .3a— 2 Dan. 404; Story 5th Ed. 3c— 111. Stat. Chan. See. 20. 102 EQUITY PLEADING AND PEACTICE. set up in an answer and not responsive to the bill is not evidence ; and matter in the answer based upon informa- tion and belief is not evidence.^^ If the effect as evidence, of an unsworn answer, is not settled by a statute or court order, it is not clear whether or not such an answer can be evidence in favor of defendant. § 152. Answer must meet every allegation in the bill. Whether or not the bill waives answer under oath, an answering defendant must answer every material allega- tion of the bill,* admitting this one, denying that one; or asserting he has no knowledge or information and no belief concerning a certain allegation, he "therefore denies it, and calls for strict proof thereof." For ex- ample, "Defendant has no knowledge or information or belief as to whether or not complainant is the owner, etc. — and therefore defendant denies that plaintiff is the owner and calls for strict proof thereof." Where there is a belief concerning a fact, answers may and should be made upon one's best information and belief, as well as upon knowledge.** In the federal practice, averments of the bill, other than of value or amount of damage, if not denied, are deemed to be confessed by the answer, except as against an infant, lunatic, or other person, non compos, and not under guardianship.*'' A defendant answering, must answer not only as to facts within his knowledge, but as to those ascertainable from books and papers in his control.^ He must answer each material averment directly, unambiguously, and without evasion, denying or confessing the real sub- stance of each charge clearly.^ But he need not answer 3d — Deimal v. Brown, 136 HI. 586. 4a— 2 Dan. 257. 3e— Story 5th Ed. Sec. 875A. 4b— XT. S. Eq. Eule 30. 4—2 Dan. 246; Story Eq, PI. 5th 5—1 Barb. 135. Ed. Sec. 35. 6— U. S. Equity Rule 64. ANSWER, 103 as to the same matter more than once, even if that matter he repeated in the charging part or in the inter- rogatories; and the bill cannot compel discovery of tlie defendant's evidence of his own defense J Complainant has a right only to discovery of evidence material to complainant's case. § 153. Complainant may compel full answer. In or- der to lessen his proofs, or in order to obtain discovery needed as a basis for his decree, complainant may com- pel full and proper answers to his bill, by filing ex- ceptions pointing out the allegations insufficiently an- swered. In federal practice exceptions for failing to answer allegations are abolished, because an answer is, under new rule 30 deemed to confess all allegations in the bill which are not answered. The legal sufficiency of an affirmative defense, set-off, or counter-claim, set forth in an answer, may be tested by a motion to strike out.'^* An answer so called, which in general terms "denies all the allegations of the bill," or an answer which ' ' neither admits nor denies any allegation in the bill, and calls for strict proof of each and every allegation of the bill," upon motion, should be stricken from the files as being no answer.* § 154, Not required to answer certain allegations. In answering one is not bound to answer allegations which are purely scandalous, impertinent, immaterial or irrele- vant,* nor anything which may subject him to a penalty, forfeiture, or criminal prosecution;" but if an answering defendant relies upon this objection, he should specify it, as a ground for refusing the discovery." A defendant 7 — Wigmore Evid. Sec. 1856. 10 — Adams v. Porter, 55 Mass. 7a— U. 8. Eq. Rule 33. 171. 8 — ^U. S. Eq. Eules 30 and 33. 11 — ^Legget v. Postley, 2 Paige 9— Davis V. Collier, 13 Geo. 485. N. Y. 599. 104 EQUITY PLEADING AND PRACTIOB. is not required to answer what would involve a breach of professional confidence. § 155. In an answer as well as in the bill avoid pleading evidential facts, and conclusions of law. Plead conclusions of fact. Evidential facts should be avoided as far as possible,"* but in answering "fully with at- tendant details" as is required by bills in equity, this cannot always be done; and in alleging fraud or usury the evidential facts constituting fraud or usury must be pleaded.^^ Conclusions of law should be avoided in setting forth matters of defense. No matter of defense should rest upon mere denials of conclusions of law ap- pearing in the complaint. A denial of a conclusion of law is a nullity. If the answer denies only legal con- clusions in the bill, judgment on the pleadings may be allowed on motion.^^ Where there is a belief concerning a fact, answers may and should be made upon one's best information and belief, as well as upon knowledge.^^* § 156. Averments in the answer and proofs must cor- respond. An answering defendant must set forth the na- ture of his defense, because he cannot take advantage of matters of defense shown by the evidence, unless they are set up in his answer.^* If he wishes to introduce proof of fraud on the part of complainant, he should set forth the evidential facts in his answer, as no presump- tion exists in favor of an answer any more than in favor of any other pleading. Allegations in an answer, and proofs introduced by defendant, must agree to render the defense available. lla— U. S. Eq. Rule 30. 13a— 2 Dan. 257. 12— ritzpatrick v. Beatty, 1 Gilm. 14 — 2 Dan. 240; 1 Barb. 137; 454; Mosier v. Norton, 83 111. 519. Millard v. Millard, 221 HI. 92. 13—1 Eneyc. PI. and Pr. 805. ANSWER. 105 § 157. To reserve benefit of demurrer, answer must specify the ground of demurrer as a defense. The ob- jection that there is adequate remedy at law, will not be considered by the court after filing an answer not specifying such objection, but merely "claiming the same advantage as though defendant demurred to the bill. "15 In federal practice, new rule 29 provides that the separate pleading known as a "demurrer" is abolished, and that all objections formerly raised by demurrer, shall be made by "motion to dismiss" the bill, or by answer. If such objection is made in the answer, it should plainly specify the question of law involved in the objection. § 158. No affirmative relief upon an answer. No af- firmative relief will be granted to a defendant upon an answer as a rule. To get relief beyond mere defense, he must file his cross-bill. But in cases where the maxim that he who seeks equity must do equity, can be applied, the court may require the complainant to do equity to defendant without a cross-bill as a condition to granting relief. And, in some jurisdictions, the existence and priority of different liens may be determined upon an- swer, for the purpose of sharing in the surplus proceeds of sale, as discussed under the subject of cross-bills. In federal equity practice affirmative relief is ob- tained by answer.^"* § 159. Testing the legal sufficiency of an answer. The usual method of testing the legal sufficiency of an an- swer, is by "a motion setting the case for hearing on bill and answer."" This will raise the question whether the facts averred or denied in the answer, constitute a defense to the case stated in the bill. The pleading 15— Law V. Ware, 238 HI. 360. 16 — Banks v. Manchester, 128 U. 15a— U. S. Eq. Eule 30. S. 244. 106 EQUITY PLBADING AND PEAOTlOE. known as a "demurrer" is not used against an answer, nor are "exceptions" used for this purpose. "Ex- ceptions" to an answer are written exceptions for in- sufficient answers to allegations of the bill. "Ex- ceptions" cannot raise the question of insufficient ground of defense. When a case is heard "upon Bill and Answer," the matters of fact well pleaded in the answer, are deemed to be true, whether answer under oath has been waived or not, and the case is heard upon the allegations of the bill admitted by the answer, on the one side, and the facts as claimed in the answer, on the other side.^'^ Un- less the allegations in the bill, expressly admitted by the answer, are sufficient, after the explanations and denials in the answer, to clearly entitle the complainant to the relief prayed for, his suit will fail. Only the strongest reasons therefore, will justify a complainant in going to a "hearing on the bill and answer."^* In federal practice, under new rule 33, a "motion to strike out" is used to test the legal sufficiency of an answer as a defense. § 160. Exceptions to an answer. In most jurisdic- tions an answer may be excepted to for insufficiency, or for scandal or impertinence. Exceptions for insuffi- ciency will be allowed where material allegations or in- terrogatories in the bill are not fully answered," or where the answer sets up questions of law instead of facts. Exceptions for impertinence or scandal must point out the objectionable matter. Exceptions must be filed before filing replication.^** Even if answer under 17 — Leeds v. Insurance Co., 2 264. Wheaton 380; Banks v. Manchester, 19 — Stafford v. Brown, 4 Paige 128 TI. S. 244; Roach v. Glos, 181 88. 111. 440. 20 — Coleman v. Lynda, 4 Band. 18 — Oontee T. DaTTBon, 2 Bland. 464. ANSWER. 107 oath is expressly waived in the bill, answers mnst be full and direct, or exceptions will lie. But in the federal practice, exceptions for insufficiency are abolished. If the answer is deficient as a defense, the court will strike it out. If discovery is insisted upon it can be obtained by filing interrogatories, which must be answered under oath. § 161. Waiving answer. Going to a trial and proofs without defaulting defendant for want of answer, or without getting a rule on him to answer, waives the § 162. Signature and Verifioation of Answers. An answer should be signed by the defendant and by his solicitors of record; and in most jurisdiction.^ the an- swer must be verified by the oath of defendant unless such oath is waived by the plaintiff in the bill.^"" In the federal court new rule 30 does not call for the answer un der oath. It is well to examine the statutes and deci- sions of one's own state to ascertain how answers should be signed, and when they should be verified. On page 182, the more usual rules on this subject are set forth. § 162A. Brief review table of defensive pleadings. In order to obtain a ready comprehension of the various functions and purposes of the different defensive plead- ings, it is suggested that the following table be carefully studied. 20a — WhitehouBe Eq. Pr, 462. 21 — Jackson v. Sackett, 146 111. 648. 108 EQUITY PLEADING AND PBACTICE. Review Chart of Defensive Pleadings I » A gg a i* e III k u as -a j») - OS S = •S a . 0) "d S CO S *i "tj *j ^ a '-t si ■a 3 o B h »H « 0) »4 h fc 3 o ggS £-55 5 53333 B ca a ■a* I" II 1 « ri •" 'S X 3, a >; *l» " ^ ■ t? - -• = A < Is s 5" a? fe *« 5 ■sj *= g ■«« «»£ .-MS ■Q B BQ n 1^ D a> T " " — ^5 fcfcS? A ■ iQ -0 •C g M »^ h h O m (H (K ** Ed « fe SB- <"¥, ° •Sot t S h S|i •S « 5 «^ I H8a 1^ o K h II £a 14 . a ^ a "S o« p ft « a p g •o'g P OS'S £ « h « S o n a- g|E u 01 g * It e ^ « ffS5 « a*! ua a a S'o S P£ ■■> a S ^R a « V o Q « « SO a> u ^ •i Sfl a-^S • a -2 *^ " g a «iii'o5 " I > S »i;n B «! "« „ S 5 « * a 2 p £ o d Sf g ns " o , »BMS. 181 52. in. Answers and Discovb»t. This defendant admits that, etc.; or, This defendant, further answering, denies, etc.; or. This defendant, further answering, says that he has no knowledge, information or belief, and therefore denies that, etc. And this defendant, further answering, says that he has been informed and believes it to be true, that, etc. ; or, And this defendant further answering, says that he has been informed but does not believe it to be true, and therefore denies that, etc. 52A. rv. Defenses. And this defendant avers that (here state any affirmative defenses). 53. V. Conclusion of Answer. And this defendant denies all other matters, causes or things in the complainant's said bill of complaint contained, material or necessary for this defendant to make answer unto and not herein and hereby well and sufficiently answered, confessed, tra- versed and avoided or denied ; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorable court shall direct. And this defendant, further answering, denies that ihe com- plainant is entitled to the relief, or any part thereof, in the said biU of complaint demanded, and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint; and prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained. C. D. Solicitor for Defendant. (If answer is required to be under oath, the following affidavit should be attached:) 54. Affidavit to Answer. State of , \ County of 1 **• C. D. being first duly sworn, deposes and says that he has read {or heard read) the above answer, subscribed by him, and knows 182 EQUITY PLEADING AND PEACTICB. the contents thereof, and that the same is true, of his own knowl- edge, except as to matters which are therein stated to be on his information and belief, and as to those -matters, he believes them to be true. (Jurat.) The answer must be signed by the defendant putting it in, un- less leave has been obtained to file an answer not signed, because originally the answer was always under oath and was testimony in the cause. (Dennison v. Bassford, 7 Paige 370.) The answer must also be signed by counsel. (2 Dan. 268.) Counsel must individually sign their own names (U. S. Eq., Rule 24). The signing of the answer by the defendant may be waived by the complainant, and if an unsigned answer is put in and the complainant files a replication, that step on his part will be held to be such a waiver. (Fulton Bank v. Beach, 2 Paige 307.) The court, under special circumstances will permit the defendant to file an ansv/er not signed by him as when he resides at a distance, or has gone abroad before an answer could be prepared or the like. (Dumond v. Magee, 2 Johns. Ch. 240.) The answer of a corporation is put in under the corporate seal and not under oath. If it is put in not under seal it will be taken from the files as irregular. (Ranson v. Stonington Sav. Bk. 2 Beasley, 13 N. J. Eq. 212 ; Supervisors v. Miss. & W. R. Co., 21 111. 338.) But unless the answer of the corporation is sworn to it cannot be made the basis of a motion to dissolve a temporary injunction ; an injunction will not be dissolved upon the filing of an answer not on oath denying the equities of the Bill. (Fulton Bk. v. New York, etc., 1 Paige 311.) Therefore, if an injunction bill waives an answer under oath, the defendant may still put in an answer under oath and so treat it, for the purpose of moving to dissolve the injunction granted on the bill. (Doughrey v. Topping, 4 Paige 94.) If the answer must be sworn to it should be done before the proper officer. "Who is such proper officer depends upon the provisions of the local statute and the rules of the court. (U. S. Eq., Rule 36.) 55. Short Answer to BiijL (Federal Court). (Title of court, of cause, and address to Judges.) The answer of C. D. and E. F., defendants to the bill of com- plaint. These defendants, saving and reserving unto themselves the benefit of all exceptions to the errors and imperfections in said bill contained, for answer to so much thereof as they are advised it is necessary or materiai for them to answer unto, do aver and FOBMS. 183 say that (here insert the matters responsive to the hill, as well as the matters of defense). And having thus fully made answer to said bill, these defend- ants pray to be hence dismissed with costs. 56. Answer of Infants by Theib Guardian Ad Litem. The ansv/er of E. D. and C. D., infants, under the age of years, by E. F., their guardian ad litem,, to the bill of complaint of A. B., the complainant. These defendants answering by their guardian ad litem, say, that they are infants, and they therefore submit their rights and interests in the matter in question in this cause, to the tender consideration and protection of this honorable court, and pray strict proof of the matters alleged in said bill of complaint. E. D. C. D. By E. F., their guardian, ad litem. 57. Answer Setting up Defense of Statute OP Limitations. And these defendants, in addition to the foregoing answer, aver that the cause of action, if any there may be, arising to the complainants on account, or by reason of the several allegations and complaints in their said bill contained, did not accrue within years before the said bill was filed ; and this allegation the defendants make in bar of the said complainants' bill, and pray that they may have the same benefit therefrom as if they had formally pleaded the same. 58. Statement in Answer, Claiming the Benefit OF THE Statute of Frauds. (After that part of the answer which shows the facts, which make the statute of frauds apply :) And this defendant says, that by the statute of , it is among other things provided, that no action shall be brought, whereby to charge any person upon any contract of any lands, tenements and hereditaments, or any interest in or concerning them unless thf; agreement upon which such action should be brought, or some memorandum or note in writing shall be signed, by the said party to be charged therewith, or some other per- son by him lawfully authorized (give the language of the statute) ; and this defendant insists upon the said statute, and claims the same benefit as if he had pleaded the same. 184 EQUITY PLEADING AND PEACTICE. 58A. Short Demurrer, Plea, and Answer in the Federal Courts. (Title of court and of cause.) The answer of defendant C. D. to the bill of A. B. C. D. answering, moves and prays the court to dismiss the bill for want of equity, and also because (here state grounds for special demurrer to iill). And said defendant further answering, for a plea to said bill, avers and says (state matter of plea). And defendant there- fore again moves and prays the court to dismiss said bill for want of equity. And said defendant now still insisting upon the demurrer and plea aforesaid, further answering, says : (here set forth an- swers a^ directed in form, No. 36 ante). 59. Conclusion op an Answer Insisting That the Complainant Has an Adequate Ebmedt at Law. And this defendant submits to this honorable court that all the matters in the complainant's bill mentioned and complained of, are matters which may be tried and determined at law, and with respect to which the complainant is not entitled to any re- lief from a court of equity; and this defendant asks that he shall have the same benefit of this defense as if he had demurred to the complainant's bill; and this defendant denies, etc. (con- elude as in form 53). 60. Disclaimer. (Title of court and cause.) The disclaimer of C. D., one of the defendants, to the bill of complaint of A. B., the complainant. This defendant, saving and reserving to himself, now and at all times hereafter, all manner of advantage and benefit of excep- tions and otherwise that can be or may be had and taken to the many untruths, uncertainties and imperfections in the said com- plainant's bill of complaint contained, for answer thereunto, or unto so much, or such part thereof as is material for this defend- ant to make answer unto, says, that he fully and absolutely dis- claims all manner of right, title and interest whatsoever in and to the (here describe the property in dispute) in said bill men- tioned, and in and to every part thereof. And this defendant denies all other matters, causes and things in the complainant's said hill of complaint contained, material or necessary for this defendant to make answer unto, and not herein and hereby weU and sufficiently answered, confessed, FORMS. 185 traversed and avoided or denied; all which matters and things this defendant is ready and willing to aver, maintain and prove, as this honorahle court shall direct. And this defendant, further answering, denies that the com- plainant is entitled, as against this defendant, to the relief, or any part thereof, in the said bill of complaint demanded, and prays the same advantage of this answer as if he had pleaded or demurred to the said bill of complaint ; and prays to be dismissed with his reasonable costs and charges in this behalf most wrong- fully sustained. CD. Solicitor for Defendant. (Add affidavit, if required, as in answer.) 61. Exceptions foe Insufficienot. (Title of court and cause.) Exceptions taken by the said complainant to the answer put in by the defendant, C. D., to the said complainant's bill of complaint : First exception : For that the said defendant, CD., has not, to the best and utmost of his knowledge, remembrance, informa- tion, and belief, answered and set forth whether (set forth the interrogatory or the allegation of fact, in the bill which is not answered, in haec verba). Second exception : For that the said defendant, C D., has not in manner aforesaid answered and set forth whether, etc. (set forth the allegation or interrogatory not properly answered). In all which particulars, the answer of the said defendant, C D., is, as the said complainant is advised, imperfect, insufficient, and evasive, and the said complainant therefore excepts thereto, and prays that the said defendant, C D., may put in a further and better answer to the said bill of complaint. J. D., Solicitor for Complainant. 62. Exceptions foe Scandal and Impehtinenoe. (Title of court and cause.) Exceptions taken by the complainant to the answer of the de- defendant, C D., to the bill of complaint in this cause, for soan- dal and impertinence: First exception : For that the said answer is scandalous from and including the word "they," in the third line of the second page, down to and including the word "appear," in the eleventh line of the third page thereof. 186 EQUITY PLEADING AND PRACTICE. Second exception: For that the said answer is impertinent from and including, etc. (as before). In all which particulars this complainant excepts to the said answer put in by the said defendant, C. D., to the said bill of complaint, as scandalous or impertinent, and he humbly insists that the same ought to be expunged from the said answer. Solicitor for Complainant. 63. Oedee of Refeeence on Exceptions. (Title of court and cause.) Exceptions for insufficiency (or impertinence or scandal) hav- ing been filed to the answer of the said defendant, C. D., and the said defendant not having submitted to any of the said excep- tions, on motion of , solocitor for complainant. It is ordered that it be referred to G. F., one of the masters in chancery of this court, to look into the bill of complaint, the answer of the said defendant, and such exceptions, and to report whether such exceptions are well taken or not. 64 Master's Report Upon Exceptions. (Title of court and cause.) To the Honorable Judges of said court, in Chancery Sitting: In pursuance of an order of this court, made in the above-en- titled cause, on the day of , A. D. 1908, where- by it was referred to the undersigned, one of the masters in chancery of this court, to look into the complainant's bill of complaint, the answer of the said defendant, C. D., and the ex- ceptions taken to said answer by said complainant, and report whether said exceptions are well taken or not : I, the said master, do hereby respectfully certify and report that, having been attended by the counsel for the respective parties, and having looked into such bill and answer and the ex- ceptions taken thereto, and having duly considered the same, I find that the second and fourth exceptions to said answer are well taken, and that the first, third, and fifth exceptions are not well taken. All of which is respectfully submitted. G. F., Master in Chancery. Dated 1908. 64A. Motion to Strike out for Insufficiency. (In the Federal Courts.) (Title of court and of cause.) FORMS. 187 And now comes A. B. by E. P., his solicitor, and moves and prays the court to strike out of the answer for insufficiency, the following : Beginning with the word on the second line of page 3 of said answer, strike out all matter to and including the word on line 4 of page 7 of said answer, because said matter is wholly insufficient to constitute any affirmative de- fense (or set-off or counter claim) as against the claims of this plaintiff, for the reason that (here state the nature of the defects or omissions in the part of the answer to he stricken). And said A. B. further moves and prays the court to strike out for insufficiency the following : Beginning with the word, etc. 65. Order for Further Answer, on Master's Report. (Title of court and cause.) The answer of the defendant, C. D., having been reported in- sufficient in the matters of the second and fourth exceptions taken thereto, by Q. F., the master to whom the exceptions of the complainant to such answer were referred, and the excep- tions of the said defendant, C. D., to said master's report hav- ing come on to be heard, and, after due consideration by the court, having been overruled, on motion of J. E., solicitor for the complainant, It is ordered that the said defendant, C. D., put in a further answer to the matters of the said second and fourth exceptions within ten days from the entry of this order. 66. General Replication. (Title of court and cause.) The repUeatiou of A. B., complainant, to the answer (or, plea) of C. D., defendant. This repliant, saving and reserving unto himself all and any maimer of advantage of exception to the manifold insufficiencies of the said answer, for replication thereunto, says : That he will aver and prove his said bill to be true, certain and sufficient in law to be answered unto; and that the said answer of the de- fendant is uncertain, untrue and insufficient to be replied unto by this repliant; without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in law to be replied unto, confessed and avoided, traversed or denied, is true, all which matters and things this repliant is and will be ready to aver and prove as this honorable court shall di- rect, and humbly prays as in and by his said bill he has already prayed. 188 EQUITY PLEADING AND PRACTICE. •J Solicitor for Complainant. The replication may be signed by either the complainant or the solicitor (1 Barb. 250). 67. Notice of Motion With Proof oe Admission OF Service. (Title of court and cause.) To , solicitor for said defendant, : You are hereby notified that on , the , day of , A. D , at . . o'clock, or as soon thereafter as counsel can be heard, we shall, before his honor, Judge , in the room occupied by him as a court room in the building, move that (specify the object of the motion), and for such other order or relief as the court may think proper to grant (which motion will be founded on affidavits, with copies of which you are herewith served and on the bill and answer filed in this cause), at which time and place you may appear if you see fit. Dated, , A. D. 19... Yours, etc., Solicitors for Complainant. State of , \ County of \ «^- , being first duly sworn, deposes and says that he served the within notice (and affidavits therein referred to), on , defendant in the above-entitled cause, by leaving true copies of the same with him (or upon , defendant in the above-entitled cause, by leaving true copies of the same with , his solicitor ; or upon , defendant in the above-entitled cause, by leaving true copies of the same with a person in charge of the office of , the solici- tor for the said , in the absence of the said , from said office) on the day of , A. D. 19. ., at the hour of And further affiant saith not. G. H. Subscribed and sworn to before me this day of , A. D. 19._; Notary Public. If the party upon whom notice is served admits receipts of a copy, the affidavit may be dispensed with, and the following form used: FOBMS. 189 Received a copy of the within notice (and aiBdavits therein referred to) this day of , A. D. 19. .. Solicitor for Defendant, If service of the notice is accepted, the following form may be used: Due and sufficient service of the within notice and affidavits therein referred to is accepted this day of , A. D. 19... C. D., Defendant, By L. M., His Solicitor. 68. AppiDAvrr Accompanying Motion. .i State of . . . . Coimty of. . In the Court of , Term, A. D. . '' ^ ss. Complainant, V. • ••••• I Defendant. Gen. No Term No Affidavit of N. 0. P. N. 0. P., being first duly sworn, on oath deposes and says that (here state the facts which are to be set up by the affidavit). And further deponent saith not. Subscribed and sworn to before me this day of , A. D Notary Public. (Notarial Seal.) 69. Petition fob Peoduction and Inspection op Papers. (Title of court and cause.) (Address to the court.) The petition of the above complainant respectfully shows that the answer of the defendant C. D. has been put in in this cause, and a replication thereto has been filed, but that no testi- mony has been taken in the cause, nor has the same been noticed for hearing; that by the answer of the said defendant he ad mits that he is in possession of divers books, {or deeds, letters, this cause described as follows: (description); that your peti- accounts, and other papers) relating to the matters at issue in 190 EQUITY PLEADING AND PKACTIOB. tioner has a direct and immediate interest in the said books, (deeds, and other papers), as follows : (describe interest in books or papers), and an inspection thereof is necessary to enable him to examine witnesses in this cause, and to prepare such cause for hearing. Tour petitioner therefore prays that the said defendant may be ordered to produce to and leave with the clerk of this court the books, (deeds, and other papers) above mentioned, and that your petitioner, his solicitor, agent, or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof or extracts therefrom, as he may be advised. Petitioner. I, , the said petitioner, depose and say that I have read the foregoing petition by me subscribed and the same is true in substance and in fact. Subscribed and sworn to before me this day of , A. D. 19. Notary Public. 70. Order for Production by Defendant. (Title of court and cause.) On reading and filing the petition of the complainant in this cause, duly verified (and on reading and filing due proof of the service of notice of this motion), and on motion of , so- licitor for said complainant, in support of the same, and on hearing in opposition thereto {or, no one appearing to oppose). It is ordered that the defendant , do, within days from the date of this order, produce before and leave with the clerk or of this court the books, deeds, letters, ac- counts, and other papers relating to the matters at issue in this cause, which are admitted by the said defendant's answer to be in his possession, and that the complainant, his solicitor, agent, or counsel, may be at liberty to inspect and peruse the same, and to take copies thereof or extracts therefrom, as he may be ad- vised, at his own expense, but that the said defendant be at liberty to seal up such parts of the said books, deeds, etc., as he shall make oath do not in any manner relate to the matters in controversy in this suit. FOEMS. 191 71. Order for Production op Papers bt Complainant. (Title of court and cause.) On reading and filing the petition of the defendant, , duly verified, praying for the production and inspection of the certain promissory note therein mentioned before he shall be compelled to answer the bill in this cause, and on hearing in support of such petition, and in opposition thereto, It is ordered that the complainant do, within days, leave with the clerk of this court the certain promissory note or instrument in writing mentioned in his bill to bear date thf; day of , A. D , and alleged therein to have been given by to , for assuring the payment of the sum of dollars, days after Buch date, and that the said defendant have days' time to answer said bill after the said note or instrument shall have been so produced. 72. Petition for Leave to Amend. (Title of court and cause, and address to the court.) The petition of the above-named complainant respectfully shows that the defendant in this cause has caused his appear- ance to be entered therein, and has put in his answer to the bill of complaint, and that your petitioner has filed a replication, but no witnesses have been examined by either party; that since the filing of said replication your petitioner has been ad- vised by his counsel, and believes, that it is essential to the rights of your petitioner in this cause that the bill herein should be amended by adding thereto the following statements: (Insert matter proposed to be introduced.) And your petitioner further shows that he had no knowledge of the facts above stated, nor was he aware of the necessity of inserting them in his bill, until after the said replication was filed. Tour petitioner therefore prays that he may be at liberty to withdraw his said replication and amend his bill by adding parties defendant or otherwise, as he shall be advised, on pay- ment of costs. Petitioner. 73. Petition to Amend Bill by Adding a Defendant. (Title of court and cause, and address to the court.) The petition of the above-named complainant respectfully shows that your petitioner filed his bill in this honorable court, 192 EQUITY PLEADING AND PBACTIOE. against the defendant, on the day of , A. D. , to which the defendant has appeared and put in his answer, upon which your petitioner is advised to make a party to this cause, and to bring him before the court as a de- fendant to the suit. Your petitioner therefore prays that he may have leave to amend his bill by adding the said as a defendant thereto, with apt words to charge him. Petitioner. 74. Amendments to Bill. (Title of court and cause.) Amendments to the bill of complaint in the above-entitled cause, made pursuant to an order of court dated the day of , A. D First. In the third line of the second page of the bill, after the word "testator," interline "to- wit, on or about the 5th day of June, 1902." Second. After the word "satisfaction" in the tenth line of the fourth page, strike out the words (here insert the words to be stricken out), and in lieu thereof insert the following : (Here insert the words to he inserted.) Third. Strike the names of and out of the seventh line of the fourth page. CD., Complainant. E. P., Solicitor for Complainant. (Add verification if necessary.) 75. Order Granting Leave to File Amend- ment TO Bill. (Title of court and cause.) This cause coming on this day to be heard on the verified pe- tition of , complainant in the above-entitled cause, praying that leave be granted to amend the bill of complaint in the above-entitled cause, as specifically set forth in said petition, and the defendant being present in open court by his solicitor, and the court being fully advised in the premises. It is ordered by the court that leave be, and the same is hereby, given to said complainant to amend his bill of complaint in the above-entitled cause by filing a copy of said proposed amendments attached to said petition for such leave. FORMS. 193 76. Oedek of Eeference to Take Proofs and to Kepoet Same Together With Conclu- sions OP Fact and of Law Thereon. (Title of court and cause.) This cause coming on to be heard upon motion of , solicitor for ; upon consideration thereof, It is ordered that this cause be and hereby stands referred to a master in chancery of this court, to take the evidence according to law and to report the evidence to this court, to- gether with his conclusions of fact and of law thereupon, with all reasonable speed; to examine the questions in issue in this cause and report his conclusions thereon; to report his conclu- sions as to whether the evidence and pleadings entitle the com- plainant or other parties to the relief or any part thereof prayed for in their respective pleadings, or to any other relief; and to perform all such other lawful services as may be necessary or proper under the premises. And for the better taking of the evidence all parties not in default shaU introduce their evidence before said master with all reasonable speed, and shall produce before him all books and writings in their possession or power which contain evidence pertinent to the issues and matters in reference ; and said mas- ter is hereby authorized and directed to cause to come and be produced before him according to law, all proper witnesses and books and writings requested by the parties. Dated this day of 19 . . . ••••• , , Judge. 77. Order of Eeference to State Account. (Title of cause and of court.) This cause coming on for further hearing upon the bill of complaint, the answer of the defendant to said bill, the replica- tion of the complainant thereto, and the testimony taken and reported by the master in chancery under a former order of the court, and the court having heard the arguments of counsel for the respective parties, and being fully advised in the premises, doth find, etc. (here insert the findings of the court as to the facts and the rights of the parties and the rule adopted in stat- ing the account). And in further consideration of the premises, it is ordered that this cause be again referred to the master in chancery of this court, to take the books of account and all papers referred to in the pleadings and report herein heretofore filed, and state the accounts between said parties, taking and re- porting such evidence, if any, as may be further offered by either E. P. & P.— 13 194 EQUITY PLEADING AND PRACTICE, of the parties to this suit, outside of the said books of account, documents, etc., and report the said evidence and statement of account to the court as soon as practicable, together with his conclusions of fact and of law thereon. And for the better tak- ing of such evidence and stating such account, the master shaFj* cause such witnesses as the parties may desire to appear and give evidence before him, and shall cause the parties, or either of them, to produce before him upon oath, all such deeds, books, papers and writings in their possession or power, containing evi- dence pertinent to the issues and matters in reference, as may be proper and as may be desired bj^ the parties; and said wit- nesses are to be examined upon oral or written interrogatories as the master shall direct. Dated this day of 19 . . . , Judge. 78. Order of Reference as to Alimony. (Title of court and cause.) It is ordered that the said defendant pay to the said com- plainant, or her solicitor, the sum of $100, in and towards de- fraying the costs and expenses of this suit, and that execution may issue therefor. It is further ordered that this cause be referred to , one of the masters in chancery of this court, to take evidence and report his conclusion as to what would be a reasonable sum to be allowed for the support of the said complainant during this suit, and also for the support during this suit, of the children of the marriage now in her custody and charge. It is further ordered that said master report his recommenda- tion as to the times and manner in which the said sums should be paid to the complainant. Dated this , day of , 19. .. , Judge. 79. Master's Notice op Day for Evidence. To Please take notice, that by virtue of an order of reference entered in the above-entitled cause, on the day of , 19 . . , I will, at ten o 'clock in the morning, on the day of 19 . . , at my office, room , street, in , in said county, fix a day to pro- ceed with the taking of testimony or evidence on such refer- ence ; and on the day so fixed I shall proceed with the taking of such testimony or evidence. the day of 19... FORMS. 195 (Signed) 'Master in Chancery of the Court of County 79A. Notice from Master as to Closing Proofs. (Venue, court, and title of cause.) \ To Solicitor., for Complainant. ., and Solicitor . . for Defendant . . . PLEASE TAKE NOTICE that, pursuant to Court rules and pursuant to the order of reference in the above entitled cause the Master has fixed the day of 19 .... , at .... 'clock . . M. for beginning proofs and the day of 19. . . . for closing proofs in chief, on the part of aU complainants ; and has fixed the day of 19. . . . at .... o'clock . .M. for beginning proofs and the day of 19. . . . for closiag proofs in chief on the part of aU defendants. After the times for closing proofs in chief have expired, an additional days time is hereby fixed for all complain- ants to close proofs in rebuttal, and days time in ad- dition thereto is fixed for all defendants to close proofs in re- buttal. The Court requires the hearings before Masters to proceed, as far as practicable, from day to day, so please prepare to put in your whole case or defense accordingly. Master in Chancery of the Circuit Court. Eeceived a copy of the above Notice this day of • ••••••• ^Xa XJt X^a • • • • Solicitor., for Complainant.. •I Solicitor. . for Defendant. . State of «.., \ County of J *'• makes oath, and says that he served the within No- tice upon , by leaving a true copy thereof with , a person apparently ia charge of office at , on the day of 19 , at M. Subscribed and sworn to before me this day of A. D. 191 Notary Public. 196 equity pleading and practice. 80. Master's Subpoena Duces Tecum. State of , I ^^ County of ) In the name of the people of the state of . . . To You are hereby commanded to appear before me, at my office, No street, in the city of , said county, on the day of A. D. 19 . . , at o'clock . .M., then and there to testify the truth in a suit where- in , complainant, and , defendant, and bring with you and then and there produce a certain (hook or writing, give description of same) and all other books or writings which contain evidence pertinent to the issues in said cause ; and this you shall in no wise omit, under the penalty of the law. Given under my hand and seal, this day of , A. D. 19... Master in Chancery of the Court of County. 81. AFFIDAVIT OP Service op Writ. State of , } County of J **• , being duly sworn, on oath, says that he served the within writ by reading the same to and leaving a copy thereof with being the within named , on the day of , 19. ., in said Sworn to before me this day of ,19 (Seal) Fees : Mileage $ Service $ Total $ Note: For a witness subpoena, omit the part referring to bringing books and papers. 82. Master's Report op Evidence together WITH Conclusions. (Title of court and cause, and address to the court.) Report of , Master in Chancery. Pursuant to an order of reference heretofore entered herein, I, the said master, do certify and report as follows: FOBMS. 197 That upon due notice to all the parties hereto, and in due form of law, and having caused to come before me and be pro- duced all such witnesses and books and writings as the respec- tive parties desired and made known to me ; witnesses were duly sworn and testified, evidence was heard and received, and pro- ceeding were had as more fully appears from the record and transcript of proceedings and evidence annexed as a part of this report, which said record and transcript, together with the exhibits therein mentioned, (and together with such depositions, affidavits and other documents as were lawfully filed in said cause and were produced before me as evidence), contains all the evidence submitted before said master, in said cause. And from the competent evidence so submitted and from the con- fessions and admissions expressed and implied in and by the pleadings in said cause and by the defaults in said cause, said master finds the following matters of fact to be true: (Here set forth the conclusions of fact found by the master.) Upon the facts aforesaid, the said master finds the following conclusions of law : (Here set forth the conclusions of law found by the maset.) Said master therefore, upon the findings of fact and of law aforesaid, concludes that the equities of this cause are with the complainant, and that he is entitled to the relief prayed for in his bin, except as otherwise found herein. All of which is respectfully submitted. Dated this day of , A. D. 19. .. Master in Chancery of the Court of County, (Then annexed to the report follows the report, record and transcript of evidence.) 83. Master's Repoet of Bvidbncb. .1 '* '^ ss. state of . . . County of. In the Court. In Chancery. Adams et al. "1 v. I Gen. No Brown et al. J Report, record, and certificate of proceedings and evidence in the above entitled cause had and taken before , master in chancery of said court in his office, suite , street, , on , 19. ., at o'clock . . . ., pursuant to an order of reference heretofore entered: 198 EQUITY PLEADING AND PRACTICE. Present , Esq., representing the complainant ; , Esq., representing Mr : "I now file with the master a copy of the notice for this hearing showing signed receipt of notice by and proving by affidavit delivery of notice to I also file with the master, the master's writ of subpoena with thi- endorsement showing lawful service of same on and to testify at this meeting. ' ' Master: Let them be stamped and placed on file. Whereupon Mr was called as a witness, and after being duly sworn by the master, testified as follows on behalf of : Mr : State your name, residence and occupation. A. — John Armstrong, 753 West Monroe St., Chicago, shoe mer- chant, etc., etc. (Here follows the testimony in the form of question and answer). Whereupon : Mr. H. W. Rice, of Eice and Carter: If you are through with the direct examination, I will ask Mr. Armstrong a few questions upon cross-examination : Q. — Mr. Armstrong, please state who was present when the contract marked exhibit "D," which I hand you, was signed? A. — ^Mr. Carter, Mr. Brown and myself. Etc., etc. (Here follows cross-examination, and then follows the re-direct examination.) (Signed) John Aemstkong. Subscribed and sworn to before me this 20th day of June, 1905. ....■•••••• , Master in Chancery of the Court of County, (Seki) Whereupon Mr called as a witness, who, after being duly sworn by the master, testified as follows: Mr : State your name, residence and occupation. Etc., etc. (Signed and sworn to as above.) 84. Master's Ceetificate op Evidence. (Venue, court and title of cause.) I, , master in chancery of the court of county, , do hereby certify that each of the witnesses aforesaid, before testifying, was by me first duly sworn or affirmed according to law, to testify and speak the truth, the whole truth, and nothing but the truth, in relation to the matters in reference and in answering all questions put to them ; that the testimony of each of them was reduced to writing. FOBMS. 199 and, after being read over by each of them, the same was dulj' subscribed and sworn to or affii^ned by each of said wi(ne>-.x^s, as shown by the several jurats thereto attached; and, where no such signatures and jurats or affirmations appear, the signa- tures and jurats or affirmations thereto were waived by all the parties. And I further certify that the foregoing record and transcript of the evidence of said witnesses, together with the exhibits therein referred to is a full, complete and true transcript of all the proeeedirgs and evidence taken before me in said cause and that a stenographer was necessarily employed in the making of said record and transcript. Dated this day of , A. D. 19. . Master ia Chancery of the Court of County, State of 85. Master's Certificate op Fees, Charges and Services. (Veyiue, court and title.) I hereby certify that I have performed the following items of service and necessarily made the following expenditures under the special order of reference heretofore entered in the above entitled cause, and that such services necessarily consumed the following amounts of my time : PEES PIXED BY STATUTE. Illinois Statutes, Fees and Salaries, Sec. 20. 1. I have taken and reported upon questions propounded by complainant, testimony amounting to folios of 100 words each @ 15fS per folio $ 2. I have taken and reported for complainant folios of 100 words each of documentary evidence, @ 15^ per folio $ 3. I have taken and reported upon questions propounded by defendant, testimony amounting to folios of 100 words @ 15^ per folio $ 4. I have taken and reported for defendant folios of 100 words each of documentary evidence, @ 15(i per folio $ 5. I certify that a stenographer was necessarily employed and that said stenographer reported and transcribed, upon ques- tions propounded by complainant, folios of 100 words each, @ 15^ per folio $ 6. I certify that a stenographer was necessarily employed and that said stenographer reported and transcribed, upon ques- 200 EQtriTT PLEADING AND PBACTICE. tions propounded by defendant, folios of 100 words each, @ 15^ per folio $ The affidavit of the stenographer is filed herewith. PEES AND ALLOWANCES TO BE FIXED BY COURT. (Illinois Statute, Fees and Salaries, Sec. 20. Services imposed by order of Reference. 1. Titae spent, days @ per day, hearing arguments by complain- ant 4 2. Time spent, days @ per day, hearing arguments by defend- ants I 3. After the report herein was drafted, time spent, days @ per day, hearing and considering arguments upon objections by complaiaant to the draft of report herein ^ 4. After the report herein was drafted, time spent, days @ per day, hearing and considering arguments upon objections by defendant, to the draft of report herein i Services, examining questions at issue and porting con elusions thereon. 5. Time spent, days @ per day, in examining testimony and ex- hibits, and considering arguments, briefs and authorities presented $ 6. Time spent, days @ per day, in determining and formulat- ing conclusions of fact and of law, and in drafting the Master's report herein $ Services finding and reporting conclusions in Default Case. FOEMS. 201 IN DEFAULT CASE. 1. Time spent, days @ per day, in examining testimony exhabits and in considering arguments and authorities 2. Time spent, days @ per daj^, in determining and formulat- ing conclusions of fact and of law and in drafting the Master's report herein $ I respectfully ask the court to allow, tax and fix as the Master's fees and allowances, such amounts as the court may deem just and proper, for each of the above items, which are not fixed by Statute. Dated this day of , 19 Master in Chancery of the Circuit Court of Cook County, Illinois. 85A. Ceetipicatb op Master's Charges. (Venue, court, and title.) I hereby certify that a stenographer was necessarily em- ployed in this cause and I further certify that my services and charges and the stenographer's services and charges are as fol- lows: For the complainant Hayslett; taking evid. test. 32 folios $ 4.80 taking evid. Bxh. 115 folios 17.25 Stenog. including Kept .5.25 Master's report 11/2 days 45.00 $72.30 For lien claimant Gold; taking evid. test. 25 folios 3.75 taking evid. Exh. 18 folios 2.70 Stenog. 25 folios 3.75 Master's report 3 hrs 15.00 25.20 For lien claimant Kellman; taking evid. test. 1 folio 15 taking evid. Exh. 12 folios 1.80 Master's report 2 hours 10.00 11.95 For lien claimant Satten; Continuances and Master's Report 5.00 5.00 Total $114.45 202 EQUITY PLEADING AND PBAOHOE. I respectfully suggest that the above charges be allowed, fixed and taxed as costs. Dated this .... day of , 19 . . Master in Chancery of the Circuit Court. 85B. Master's Certificate of Fees, Services AND Charges. (Venue, court and title.) I hereby certify that I performed the following items of services and necessarily made the following expenditures under the order of reference heretofore entered in the above entitled cause. FEES FIXED BY STATUTE. I have taken and reported testimony and exhibits amounting to 504 folios of 100 words each, at 15^ per folio $ 75.60 I have taken and reported 3 folios of 100 words each of documentary evidence at 15^ per folio 45 I hereby certify that a stenographer was necessarily employed and that said stenographer reported and trans- cribed 504 folios of 100 words each at 15^ per folio . . 75.60 FEES TO BE ALLOWED BY THE COURT. Master's services 8 days time hearing arguments, ex- amining questions in issue and reporting conclusions thereon 240.00 Total $391.65 Dated, this day of , A. D. 19 Master in Chancery of the Circuit Court of Cook County, Illinois. 85C. Affidavit of Stenographer. (Venue, court and title.) being duly sworn deposes and says that he is the stenographer who took down in shorthand and tran- scribed the foregoing testimony ; that the said transcript actually contains 250 words per page and that the rate actually charged for taking and transcribing the same is cents per folio of 100 words. FOBMS. 203 Subscribed and sworn to before me this day of , 19 . . . Notary Public, Cook County, Illinois. Judge. 86. Order Fixing Master's Fees, (upon contest) (Venue, court and title.) And now comes , the Master to whom this cause stands referred, and presents to this court the Master's report together with the final objections of the parties thereto and the rulings of the Master thereon, and he presents and files his certificate of services and charges. And on motion of said Master, it is ordered that the Master's fees for services in examining the questions in issue and report- ing conclusions thereon and for the other services imposed by the order of reference, are hereby approved, allowed and fixed as itemized and apportioned in the Master's certificate of services, and his total fees for the services aforesaid are hereby fixed at the sum of $ ; and the clerk of this court is hereby ordered to tax said sum for such services in addition to taxing the Master 's fees allowed and fixed by the statute for taking and re- porting testimony, exhibits and stenographer's charges, as also certified by said Master. And the court further orders each respective party to pay in the first instance, and within five days, to the Master, all the certain items of fees as apportioned to such party in the Mas- ter 's said certificate, and a fractional share of each additional item of fees for services performed by the Master for the parties in common, and, therefore, not apportional in the Master's certificate. Provided this order shall be without prejudice to a further order finally awarding the costs of suit herein. And provided also that any party may pay to the Master be- sides his own portion, the portion of fees due from anothei' party; and the party so advancing such fees for such other party, shall be recompensed by such other party within the time above mentioned, and in default thereof this court will enter such further orders as may be proper. The party advancing such fees for such other party shall be entitled to recover the same as costs unless the final awarding of the costs of suit is against the party so advancing such fees. Judge. 87. Plan of Master's Work for Foreclosure Repori 1. Examine pleadings to see if bill is traversed. 204 KQUITY PLEADING AND PEACTICE. 2. Examine summons and returns therein for parties actually subject to the court's jurisdiction for correct caption of report. 3. Study testimony and examine exhibits. 4. Dictate report — finding as facts only things proved by testimony or exhibits; facts not proved before master but con- fessed by default, can be included in "i" herein. (a) Find facts as to note and interest notes as alleged in bill ; if bill is poorly drawn, find facts from original note. (b) Find facts as to execution, delivery, acknowledgment and recording of trust deed, as alleged in bill; if bill is poorly drawn, from original trust deed or mortgage. (c) Find facts as to provisions of trust deed, either as alleged in bill, or quote from the trust deed. If quoted, preface the fol- lowing form : That said trust deed among other things contains the follow- ing words, figures and provisions: Always state provision as to release and waiver of homestead ; the bill often omits this. Cite from the T. D., also the covenants, if any are broken, penalties, (if any are incurred), other pro- visions (if any are violated), the provision as to solicitor's fees, etc., and the defeasance clause. Note: In most states a properly acknowledged conveyance like a trust deed or mortgage or certified copy thereof, is, with- out further proof of execution, prima facie evidence, and, of itself, proves all facts under a, b and c, above. (111. Stat. Con- veyances, Sec. 20). It can be overcome upon proof sufficient to destroy this prima facie proof. (Wolcott v. Lake View B. & L., 59 111. App. 415.) (d) Find facts as to who is the legal owner of the principal and interest notes at time when bill was filed and up to time of report. Note : Possession of note and mortgage is strong presumptive evidence of ownership. (e) Find facts as to payments by defendant. Note and mortgage are prima facie evidence of amount due. (f) Find facts as to defaults by defendant in failing to com- ply with provisions of trust deed. (g) Find facts as to expenditures by complainant, for taxes, insurance, etc., etc., on account of defaults therein by defendant, and find as to "cash advanced for abstract continuation in order to properly begin this suit, ' ' and whether justified by the provisions of the trust deed. (h) "That there is due from said to said on account of the provisions of said notes and trust deed and on FOBMS. 205 account of the foregoing, the sum of $ as appears from the following items: Principal note No. 1 due Aug. 1, 1908 $ Interest thereon at per cent. from to Interest note due Feb. 1, 1908. Interest thereon at per cent. from to Interest note due Aug. 1, 1907. Interest thereon at per cent. from to Jan. 7, 1908, cash advanced for taxes 1906 Interest thereon at per cent, from Jan. 7, 1908, to Feb. 10, 1908, cash advanced for insurance, Interest thereon at per cent, from Feb. 10, 1898, to Mar. 7, 1908, cash advanced for continuance of abstr. of title Interest thereon at per cent, from Mar. 7, 1908, to Total. $ (Note: Some statutes require interest to be calculated ac- cording to the "six per cent method," a month being one- twelfth of a year and a day one-thirtieth of a month. 111. Stat. "Interest") "Also the further sum of $ incurred by said ........ as his solicitors' fees herein, which sum last aforesaid is the sum expressly provided for in said trust deed, and said master finds the same to be a just and customary fee for the services rendered by complainant's solicitor herein; (or, if the trust deed provides for a 'reasonable' fee, — 'which sum said master finds from the evidence to be a reasonable charge for the services performed by the complainant's solicitor')." (i) Said master further finds and concludes that said com- plainant, has a lien on the premises aforesaid and on the rents, issues and profits arising therefrom for the amounts due as aforesaid; that the equities in this cause are with said complainant , and that is entitled to the re- lief prayed for in said bill so far as the same is consistent with this report. Said master therefore recommends that the usual and regular decree of foreclosure and sale be entered herein in accordance with this report. 206 EQUITY PLEADING AND PRACTICE. Dated this day of , 19 Master in Chancery of the Court of County, 88. Plan op Master's Report op Building and Loan Association Foeeclosube. Note carefully if evidence supports following findings: Findings that Association is a corporation organized and doing business under the law of , that C. D. being a member of said association and the holder and owner of shares of the capital stock of said association, made, executed and delivered his certain bond (or agree- ment) in ' ' words and figures as follows ' ' : (quote bond in full) and also executed and delivered the certain trust deed mentioned in said bond at the time and in the manner as set forth in com- plainant's bill. Finding as to acknowledgment and recording of trust deed. That the trust deed, mentioned in said bond, among other things contains the following words and figures: (quote cov- enants, penalties and rights in question, also defeasance clause, release and waiver of homestead clause, solicitor's fee clause, other expenses clause, etc.) That , at the time of filing the biU herein and up to this day was and is the legal holder and owner of said bond. That said C. D. made the payments mentioned in said bond until the day of 19 . . ; that the amount of dues paid on his shares of stock is $ ; that said C. D. made default in the payment of the certain installment of dues, inter- est and premium aforesaid, which became due on the day of and in said default continues to this day. That on the day of said association through its board or directors duly passed a resolution in words and figures as follows : (Quote resolution declaring default and amount due, for- feiture of stock, and authorizing suit.) That between (give date) the last day C. D. paid money as aforesaid and (give date of resolution) (give number) installments of premium and of interest became due to said association from G. D. Find facts as to defaults in the payment of taxes, and amounts, with dates, paid therefor by complainant association. Find facts as to defaults in the payment of insurance and the amounts, with dates, paid therefor by complainant association. If T. D. provides for specific recovery of money laid out for abstract of title, find that a continuation of abstract of title was POEMS. 207 necessary for purposes of this suit and the amount, with date, expended for abstract continuation. That the following are the by-laws of said association which determine and govern the withdrawal value of the shares of stock aforesaid : (quote by-laws.) That the withdrawal value of the stock aforesaid is $ being $ amount paid as dues and per cent, inter- est thereon according to said by-laws. That the following words and figures of the by-laws of said association determine and govern the assessment and collection of fines upon the capital stock of members of said association: (quote by-laws on fines, if fines involved in cause.) That fines amounting to $ were duly and regularly assessed against said according to said by-laws. That on the day of being the day when by the resolution aforesaid the stock aforesaid owned by said was forfeited and reverted to said association, the membership of said C. D. ceased, and a legal relation of borrower and mortgage creditor superseded the contract relation set forth in the bond and trust deed aforesaid, and on said last mentioned day therefor the installments of interest and prem- iums falling due (quarterly or semi-annually, as provided in T. D.) mentioned in said bond and trust deed, ceased to fall due as before (because of said loss of membership) and only the statutory rate of interest, 5 per cent., can thenceforward be charged to C. D. on the balance remaining due said associ- ation after applying all credits, including the withdrawal value of said stock on the day last mentioned. That no share of the capital stock aforesaid has matured or reached the par value of One Hundred Dollars. That there is due, owing and payable to said association from said C. D. on account of the bond and trust deed aforesaid and on account of the foregoing the sum of $ as appears from the following items of debits and credits. Debits. (Date of resolution) Principal loan " " "5 Int. Installments in arrears " " "5 Premium Installments in arrears " " " Fines assessed as afore- said Taxes Insurance • • •-• •-• [m-» •-• • • 208 EQUITY PLRADING AND PBACXICB. Credits. Dues paid $ Int. according to by-laws $ Balance due $ (Date of resolution) Balance due $ Interest therein at 5 per cent, to (date of report.) Also the further sum of $200 as and for complainnnt 's solici- tors, etc., etc. (See plan of ordinary foreclosure report.) 89. Notice of Draft of Repoet. (Title of court and cause.) To , solicitor for complainant, and solicitor for defendant: Please take notice that I have prepared a draft of my report in the above-entitled cause, and objections thereto may be filed at my office on or before , the day of , A. D., 19. . . ., which will be the last day for filing objections to the same; and that I shall hear argument on any objections filed on , A. D. 19 , at o'clock .... M., at which time and place you may appear if you see fit. Dated , , ,19 Master in Chancery of the court of County, State of 90. Beief Suggesting Findings foe Master's Repoet. (Title of court and cause.) Before Master in Chancery Brief of Solicitor for "On behalf of , complainant (or defendant) in the above entitled cause, we respectfully contend that the plead- ings, proceedings, orders of record, exhibits and evidence, in the above entitled cause, will justify said master in including in his report, among other findings of fact, the following : "1. That (here state fielding of fact substantially as alleged in the pleading, and after the finding, cite all the exhibits or pages containing evidence pro and con on the finding.) "2. That, etc. "We further respectfully contend that upon the facts as aforesaid the master should find the following conclusions of law: FORMS. 209 1. That, etc. (State finding of law and cite authonties.) " Dated this day of (Signed) "Solicitors for Complainant. (Or Defendant.)" 91. Objections and Exceptions to the Master's Ruling Upon Testimony, Before the Master Files His Report. State of , I County of j *^- 0. D.J In the court. term, A. D. 19 . . . . In Chancery. Gen. No objections and exceptions to the master's rulinq upon evidence. And now comes , defendant (or complainant) in the above-entitled cause, and brings before this court the follow- ing objections and exceptions upon the following testimony and evidence had and taken before master in chancery, , to whom this cause stands referred. (1) Test, page 26: (Mr. Williams examining W. F. Brown, for complainant.) Q. State in substance the terms of this contract. Mr. R. : On behalf of the defendant, , I object, up- on the ground that this contract, being in writing, the writing itself is the best evidence of its terms. The Master: Let him answer, subject to the objection. Mr. R. : Exception. (2) Test, page 39: Mr. Williams examining Mrs. Alice Temple, for complainant.) Q. Did he acquiesce in your proposition? Mr. R. : I object on behalf of defendant, upon the ground that the question asks for a conclusion. The best evidence is either the contract in writing or the actual language used in such parts of the contract as were oral. The Master: Let him answer. Mr. R. : Exception. E. P. & P.— 14 210 EQUITY PLEADING AND PEACTICE. (3) Etc. . , , Wherefore, said , defendant in the above-entitled cause, prays the court to consider said objections and excep- tions upon the evidence, and to enter an order stating what objections and exceptions, as made on behalf of said defendant, are allowed, and what objections and exceptions are overruled, and directing the master to proceed to take such further testi- mony as this court may deem proper, and directing the master to disregard, in making up his report, such testimony as this court may rule to be incompetent or irrelevant, and this de- fendant prays for such further orders and directions as this court may deem proper to make. Dated this day of ,19 (Signed) :1 Solicitor. 92. Objections to Master's Eeport. State of 1 County of i **• In the court. In Chancery. Gen. No. A. V. "Now comes , complainant (or defendant), and ob- jects to the master's (first) draft of his report in the above entitled cause, dated the day of ' ' 1. Because the master on page of his report has found that (state the finding of fact). Whereas, said master should have found from the pleadings and evidence that (state the finding of fact as objector thinks it should he found). "One ground of objection, among others, being that (said master's finding is contrary to the weight of evidence and con- trary to confessions under the pleading; or state other objec- tion). We respectfully call the master's attention to the fol- lowing, being all the pages of evidence, for the master's finding, viz: pages 27, 31; and to the following, being all the pages in favor of the finding above requested for us, viz. pages 42, 47, 49. "2. Also because the master has omitted to find, anywhere in his report, that (here state the finding of fact which was omitted by the master, and which the party objecting deems it essential to his suit, for the master to have found). The ground of objection, among others, being that (the finding is material to complainant's case and is justified by the pleadings and the evidence). See testimony pp. 17, 24. ?obms. 211 "3. Etc. "Wherefore, said objector prays the master to modify and amend the said draft of his report in accordance with the ob- jections above stated, and in accordance with the pleadings, proceedings, orders of record, and exhibits and evidence intro- duced. "Dated this day of (Signed) " "Solicitor for Complainant (or Defendant)." 93. Exceptions to Master's Report. (Title of court and cause.) And now comes , and in open court makes and taken the following objections and exceptions to the report of , master in chancery, to whom this cause was referred by an order heretofore made herein; which report is dated the day of , A. D. 19 , and was filed of record herein on the day of , 19 ... . (1) For that the master, on page of his said report, has found that (here insert the finding and ground of excep- tion), whereas he should have found from the evidence ancL pleadings, that (here state finding which should have been made). See evidence pages 16, 27, 89. (2) For that, etc. Wherefore, said , excepts to said report, and appeals to the judgment of the court, and prays the court, upon con- sideration thereof, to enter an order stating what exceptions are allowed and what exceptions are overruled, and either in said order making findings or conclusions other than or addi- tional to those contained in the report, or by said order refer- ring the report back to said master directing him to file a new and amended report and to make the certain other or ad- ditional findings or conclusions specified by the court in such order, together with such further findings and conclusions as may be consistent with those specified in the order, and con- sistent with the rulings of the court upon exceptions ruled on by the court, and containing such other directions as may be equitable. Dated this day of , 19. . . . C. D., Defendant. G. F., Solicitor for Defendant, C. D. 94. Order Confirming Master's Report. (Title of court and cause.) 212 EQUITY PLEADING AND PBACTICE. This cause coming on this day to be heard on the report of , one of the masters in chancery of this court, to whom the above-entitled cause was duly referred, which said report was filed in this court on the day of , A. D. 19 , and upon the exceptions of the defendant, C. D., to said report, and the complainant being present in open court by G. H., his solicitor, and the defendant being present in open court by J. B., his solicitor, and the court having heard the arguments of the solicitors for the respective parties in support of and against the allowance of said exceptions and the con- firmation of the said report, and having considered the same, and being fully advised in the premises, It is ordered that the said exceptions, and each of them, be and the same are hereby overruled, and that the said report of the said master be and the same is in all things approved and confirmed. 95. Deceee of Sale. (Venue, court and title.) This day come. . the complainant. ., by , solicitor. ., and the defendant. . , . . . , And this cause having been brought on to be heard upon the Bill of Complaint taken as confessed by And on the answer. . of the defendant and upon the complainant's replication . ., to said answer. ., and upon the proofs and exhibits herein, and the report of , a Mas- ter in Chancery of this Court, made in pursuance of an order of reference heretofore entered herein, and it appearing that all the parties are properly before the Court, and that the Court has jurisdiction of the subject matter, and of the parties hereto, it is ordered and adjudged by the Court that said report be and the same is hereby approved and confirmed, no objections or exceptions having been filed thereto. And the court finds that the notes described in the bill of com- plaint were made and delivered by defendants and and the trust deed described in said bill was made, signed, sealed, delivered and acknowledged by and as described in said bill and said trust deed contained the pro- visions set forth in said bill and in the - copy attached to said bill, and said trust duly conveyed the real estate and was filed for record and recorded in the recorder's office of said county on the day of 19 . . , as alleged in said bill. And the court finds that defaults in payments were made as stated in said bill, and that the complainant is the legal holder and owner of the notes aforesaid secured by the trust deed aforesaid; and the court finds that the rents, is- FORMS. 213 sues and profits arising from said real estate were also pledged by said grantors as security for the payment of said notes and for the performance of the covenants in said trust deed. And the Court finds that all the material allegations in sai 1 Bill of Complaint are proved, and that there is due the complainant from the sum of Dollars and interest thereon at the lawful rate from the day of A. D. 191 . . , the date of said report, also the sum of Dollars also found due by said report as a reasonable solicitor's fee, under the provisions of the instru ment sued on. The court finds that complainant has a lien upon the real estate described herein and upon the rents, issues and profits arising therefrom for the payment of said sums due as aforesaid by virtue of the trust deed aforesaid It is therefore ordered, adjudged and decreed that if the defendant or some of them do not pay to the com- plainant within one day from this date, the said sum of Dollars, with lawful interest thereon from until paid, and also the costs of this suit (including the said solicitor's fees, and the Master's fees on the reference herein, which are hereby taxed at the sum of Dollars, and the fees of guardian, ad litem, for the infant de- fendant in this cause, which are hereby taxed at the sum of Dollars) the premises described of said Bill of Com- plaint, and the Master's Report, to-wit : situated in the County of Cook and State of Illinois (together with all buildings and improvements thereon, and tenements, hereditaments and appurtenances thereto belonging), or so much thereof as may be sufficient to realize the amount due the said complainant together with the costs of sale , and which may be sold separately without material injury to the parties interested, be sold at public auction, for cash, to the highest and best bidder, at the Judicial Salesroom of the (Cook County Real Estate Board, Number 107 Dearborn St. (Chicago Eeal Estate Board, Number 118 Dearborn St. Street, in the City of Chicago, County of Cook, and State of Illinois. The master shall not include in his description of the real estate to be sold, the rents issues and profits arising therefrom, and this court reserves its jurisdiction over the rents, issues and profits arising from said real estate to abide further orders upon the coming in of the master's report of sale It is further ordered that a Master in Chancery of this Court, execute this decree; that he give public notice of the time, place and terms of such sale, by previously pub- lishing the same weekly, for three successive weeks, in a secular 214 EQUITY PLEADING AND PEAOTIOE, newspaper of general circulation, published in said city, the first publication thereof to be at least twenty days prior to the day of sale ; and that the complainant, or any of the parties to this cause, may become the purchaser or purchasers at such sale. The Master may, at any time, in his discretion, for good rea- son, adjourn a sale so advertised. He shall give to any purchaser a certificate of sale as required by law, and shall cause a duplicate of such certificate to be re- corded in the proper office. Out of the proceeds of sale he shall retain his fees, disburse- ments and commissions, and see that all unpaid costs are paid to the persons entitled to receive the same. He shall then pay to the complainant, or to Solicitor . . of record, the amount due under this decree, with interest as aforesaid, and all taxable costs advanced by said complainant if the remainder of proceeds be sufficient ; if not suf- ficient, he shall apply such remainder in satisfaction of said amount due, as far as it will reach, and report the deficiency. If there be a surplus he shall bring it into court to abide a further order herein. After the comiag in and confirmation of the Master's report of sale, in case any deficiency is shovm in the amount due com- plainant* , a receiver shall at once be appointed to col- lect the rents of said real estate until the further order of this court and said complainant shall be entitled to a deficiency de- cree which shall continue to be a lien on the rents, issues and profits arising from said real estate, subject to the rights of the purchaser at the sale hereunder upon such purchaser obtain- ing a deed pursuant to such sale; and said complainant shall have execution against the defendant , personally liable therefor. And it is further ordered, adjudged and decreed, that if the premises so sold shall not have been redeemed within the time allowed by the laws of this State, the said Master in Chancery, or his successor in office, upon production of any certificate of sale aforesaid by the purchaser or purchasers, his or their heirs, successors or assigns, shall execute to the legal holder or holders thereof, a deed of conveyance of the premises in such certificate described. And the defendants in this cause, and all persons claiming under them, or either of them, shall be forever barred and fore- closed f^om all equity of redemption and claim of, in and to said premises, and every part and parcel thereof, which shall have been sold as aforesaid, and which shall not have been re- deemed according to law. And it is further ordered, adjudged and decreed, that upon the execution and delivery of the deed or deeds as aforesaid, FOEMS. 215 the grantee or grantees, his or their heirs, successors or assigns, be let into possession of the portion of said premises so conveyed, and that any of the parties to this cause who may be in possessiou of said premises, or any part thereof, and any person who, since the commencement of this suit, shall have come into possession under them, or either of them shall, upon production of said Master's deed and the service of a certified copy of this decree, surrender possession thereof to such grantee or grantees, his or their heirs, successors or assigns; and in default of so doing that a writ of assistance may issue, in accordance with the prac- tice of this Court. Examined and approved : Master in Chancery of the Circuit Court of Cook County. 0. K Enter Judge *Note: Even if there be no personal service upon the prin- cipal debtor, if the rents were pledged by the mortgage or trust deed, the decree may provide as follows: And a receiver shall then be appointed to collect the rents of said real estate until the further order of this court, and said , complainant shall have a lien for the payment of such deficiency on the rents arising from said real estate subject to the rights of the pur- chaser at the sale hereunder upon such purchaser obtaining a deed pursuant to such sale. (Oakford v. Robinson, 48 App. 270; Wright V. Case, 535 ; 1st Nat. Bank v. 111. Steel Co., 174 111. 140.) Note: If there is personal service on the parties liable for the debt, insert the following: And the said complainant shall have and recover from defendants over whose person this court has jurisdiction $ , the amount of the deficiency, and said shall have execution therefor. 96. Memoeandum of Time and Place op Sale and of Cash Requibed op Complainant w He Bids. (Venue, court and title). Sale Monday Jan. 20, 1919, at 1 P. M., at the Chicago Real Estate Board, No. 26 North Dearborn St., Chicago. decree, interest and costs op sale. Decree Debt $ Interest thereon at 5% from date of master's report to date of sale $ Solicitor's fee $ 216 EQUITY PLEADING AND PRACTICE. Taxed costs $ Pees Master's Report $ Master 's fees, disbursements and commissions : Preparing notice of sale $ Publishing notice of sale $ Commissions on sale $ Certificate and duplicate of sale $ Recording duplicate certificate $ Report of sale and distribution $ Total, $ Cash at sale for master if bid in by complainant: Report $ Expenses and commissions $ 97. Master's Report op Sale and Distribution. (Title of court and cause.) Foreclosure To the honorable judges of said court, in chancery sitting : Pursuant to a decree entered in the above entitled cause on the day of , A. D. 19 . . , I, , a mas- ffer in chancery of said court, respectfully report that more than days having elapsed after the entry of said de- cree, and said defendant not having paid the whole or any part of the money by said decree required to be by him paid, I duly advertised, according to the law and to said decree, the premises in said decree and hereinafter described, to be sold at public auction to the highest and best bidder therefor, for cash, at the hour of o'clock in the noon of , the day of A. D at , No. in the city of in said county, by causing a notice containing the title of said cause, the names of the parties thereto, the name of the court wherein said cause was pending, and a description of the premises to be sold, and a statement of the aforesaid time, place and terms of said sale, to be published for three successive weeks immediately prior to said day of sale, to-wit : three times in , a public secular news- paper, of general circulation, printed and published every , in the city of , in said county. The day of the first paper containing said notice was the day of , A. D , and the date of the last paper containing said notice was the day of , A. D. 19 . . . . ; a cer- tificate of which publication is hereto attached, Marked Exhibit A. FOEMS. 217 At the time and place so designated by said advertisement for said sale, I attended to make said sale ; and I offered said prem- ises for sale at public auction to the highest and best bidder for cash. [I first offered each lot of said premises for sale separately, and there were no bids upon said offer. I next offered any num- ber of said lots less than the whole of said premises for sale in groups to suit bidders, and there were no bids upon said last- named offer. I then offered said premises for sale entire ;] where- upon offered and bid therefor the sum of dollars ($ ), and that being the highest and best bid for cash therefor offered, I struck off and sold to said bidder for said sum of money the said premises which are situated in the county of , and state of , and described as follows, to-wit: (Describe premises.) The amount aforesaid realized from the sale aforesaid. I have allowed, distributed, credited, paid and retained as fol- lows: (Allowed) complainants (on account of amount due on decree ($ ) and interest thereon ($ ) ..$ (Allowed) complainant in full of total costs $ (Allowed) complainant in full of solicitor's fee $ Retained by master fees for General report $ Retained by master for preparing notice of sale $ Retained by master for publishing notice of sale $ Retained by master for commissions on sale $ Retained by master for certificate of sale and duplicate. $ Retained by master for recording duplicate certificate . . $ Retained by master for report of sale $ The receipts for said payments are hereto attached as a part of this report and marked ' ' Exhibits B, C, and D. ' ' I have executed and delivered to purchaser at said sale, the certificate of sale directed by said decree, and by law, to be executed, and have filed in the office of the recorder of deeds of said county the duplicate of said certificate. In conclusions, I report that the proceeds of said sale were sufficient to pay the amount found to be •Iv.e to said complainant together with costs, and there remains a deficiency of $ still due complainant under said decree. All of which is respectfully submitted. Dated this day of , 19. .. Master in Chancery of the Court of County, 98 Master's Receipts for Proceeds op Sale. (Title of court and cause.) 218 EQUITY PLEADING AND PRACTICE. Exhibit B. 19.. Eeceived of master in chancery of said court dollars, on account of amount due under decree herein, together with in- terest thereon. Exhibit C. , 19-- Received of master in chancery of said court dollars, for solicitor's fees, due under decree herein. Exhibit D. , 19-. Received of master in chancery of said court dollars, on account of complainant's taxed costs herein. 99. Ordeb Confirming Sale, Deficienct Decree, and Continuing Receiver in Possession. (Venue, court, and title of cause.) And BOW again comes comp' lant by solicitors, , and this cause cominf on to be further heard upon the report of sale of , Master in Chancery, this day filed in court, therefore on motion of complainant by solicitors, it is ordered and decreed that said report of sale and of distribution of the proceeds of sale and the doings of said Master in and about said sale and distribution be and the same are hereby approved and confirmed. And it further appearing to the Court from the said Master's report that after retaining out of the proceeds of said sale the Master's fees, disbursements and commissions, and after pay- ing to the complainant costs of suit and so- licitors' fees as shown by said master's report and the receipts therewith filed, there remained from the proceeds of sale only the sum of $ to be applied upon the amount ($ / due complainant under the final decree together with lawful interest. It is therefore adjudged, ordered and decreed that the said sum of $ be and the same is hereby credited as paid on account of said decree, on the day of , 19. ., and the court finds that there remains a deficiency due under said decree of $ to said complainant , as together with lawful interest from 19.. the day of said sale. POBMS. 219 And it further appearing to this court that personal service of summons was duly obtained in this suit upon the defendants, , and that said last named defendants are personally li- able under said decree. And it further appearing to this Court that the complainant. , has a lien upon the rents arising from the premises described in said decree for the full amount due under said decree, and for any deficiency remaining after sale. NOW THEREFORE IT IS ADJUDGED, ORDERED AND DECREED that the said complainant, , have and re- cover from said defendants, , the said sum of $ together with interest thereon from , 19 . . , and ihat said complainant have execution therefor as upon a judgment at law. And it is further adjudged, ordered and decreed that continue to act as the receiver of this court until the further order of this court with power to continue in possession and charge of said premises, and with power to rent said premises and parts thereof and to collect rents, to manage and keep in repair the said premises and to apply the rents towards the payment of said deficiency and to pay the expenses of man- agement and maintenance of said premises in order to keep the premises in a fit condition for renting and all persons in possession of any part or the whole of said premises are hereby, ordered to pay rents to said receiver. Said receiver is hereby authorized to employ counsel to SlA- vise said receiver regarding his acts and doings in his behalf. And said receiver upon the payment of said deficiency or upon the expiration of the statutory redemption period, if the prem- ises be not redeemed from said sale and go to a deed to the pur- chaser at said sale, shall report to this court his acts and doings as said receiver, and in his report shall also account for all moneys received and expended by him as said receiver. Enter Judge. 100. Master's Cektipicatb op Sale. (Title of court and cause.) Ij , master in chancery of the court of county, , do hereby certify, that pursuant to a decree entered on the day of A. D. 19 . . , by the said court in the above entitled cause, I duly ad- vertised, according to law, the premises hereinafter described, to be sold at public vendue, to the highest and best bidder for cash, at the hour of o'clock, in the noon, on the day of , A. D., 19. ., at No street, in the city of , in said county. That at 220 EQUITY PLEADING AND PRACTICE. the time and place so aforesaid appointed for said sale, I attended to make the same, and offered and exposed said premises for sale at public vendue, to the highest and best bidder for cash: Whereupon offered and bid therefor the sum of ; and that being the highest and best bid offered there- for I accordingly struck off and sold to said bidder, for said sum of money, the said premises, which are situated in the county of and state of , and are described as folloft's, to-wit : And I do further certify that the said legal repre- sentatives or assigns, will be entitled to a deed of said premises on the day of A. D. 19. ., unless the same shall be redeemed according to law. AVitness my haad and seal, this day of A. D. 19... [Seal.] Master in Chancery of the Court of County, State of 101. Master's Certificate of Eedemption. Whereas, the following described premises, situated in the county of and state of , were on the day of , A. D. 19. ., exposed for sale at public vendue by the undersigned, one of the masters in chancery of the court of county, in pursuance of a decree made and entered by the court of county, on the day of A. D. 19. ., in a certain cause then pending therein on the chancery side thereof, in which complainant, and defeadant. And, whereas, at said time , being the highest and best bidder. . therefor, became the purchaser. ., for the sum of of said premises, to-wit : (description of real estate) and received from the undersigned a certificate of such sale, stating the said purchaser would be entitled to a deed of said premises on the day of , A. D. 19. ., unless sooner redeemed. And, whereas, twelve months have HOt elapsed since said sale, And, whereas, , being interested in said premises hcis this day paid to the undersigned, as master in chancery, the sum of , being the amount of said sale with interest thereon, and the further sum of for taxes and assess- ments paid by the holder of said certificate of sale on said prem- ises, with interest thereon as and for the redemption of said premises from said sale. Now, therefore, the undersigned hereby certifies that said premises have been this day redeemed from said sale by FORMS. 221 in accordance with the provisions of the statute in such ease made and provided. Given under my hand and seal this day of A. D. 19... [Seal.] Master in Chancery of the Court of County. 102. Master's Deed. This indenture, made this day of , A. D. 19 . . , between , master in chancery of the court of county, in the state of , party of the first part, and of county of and state of party of the second part, witnesseth : Whereas, in pursuance of a decree entered on the daj' of , A. D. 19 . . , by the court of said county, in a certain ease then pending therein, on the chancery side thereof, wherein , complainant. ., and , defendant. ., the said master in chancery duly advertised, ac- cording to law, the premises hereinafter described, for sale at public auction to the highest bidder, at the hour of o'clock, in the noon, on the day of , A. D. 19 . . , at in in said county. And, whereas, at the time and place so as aforesaid appointed for said sale, the said master in chancery attended to make the same, and offered and exposed said premises for sale at public auction, to the highest bidder, and thereupon offered and bid therefor the sum of dollars ($ ) ; and that being the highest bid offered said master in chancery accordingly struck off and sold to said for said sum of money, the said premises, and did thereupon sign, seal and deliver to said the usual master's certificate therefor: And, whereas, said premises have not been redeemed from said sale : Now, therefore, in consideration of the premises the said party of the first part doth hereby convey unto the said party of the second part heirs and assigns, the said premises, which are situated in county of and state of , and described as follows, to-wit : To have and to hold the same, with all the appurtenances thereunto belonging, unto the said party of the second part, heirs and assigns, forever. Witness the hand and seal of the said party of the first part, the day and year first above written. [Seal.] 222 EQUITY PLEADING AND PKACTICB. Master in Chancery of the Court of County. State of , I County of f **• I, a notary public in and for the said in the state aforesaid, do hereby certify that , master in chan- cery of the court of said court, who is personally known to me to be the same person whose name is fgubscribed to the foregoing instrument, appeared before me this day in person, and acknowledged that he signed, sealed and de- livered the said Instnunent as his free and voluntary act, as such master in chancery, for the uses and purposes therein set forth. Given under my hand and notarial seal, this day of , A. D. 19... Notary Public. 102A liOBM OP New Decree under Illinois Satutb, PROVIDING FOR SaLE AETBR REDEMPTION PERI- OD HAS EXPIRED. {Title of court and cause.) This day come the complainant ,by solicitor , and the defendant, And THIS CAUSE having been brought on to be heard upon the Bill of Complaint taken as confessed by and upon the answer. . of defendant and upon the complainant. . replication . .to said answer. ., and upon the proofs and exhibits herein, and the report of , a Master in Chancery of this Court, made in pursuance of an order of reference heretofore entered herein, and the Court having examined said Master's Report and having heard the arguments of Counsel and being duly ad- vised in the premises, finds that it has jurisdiction of the sub- FORMS. 223 ject matter of this suit and of all parties hereto; that all ma- terial allegations in said Bill of Complaint contained are true and proven as therein set forth, and that said Master's Keport and the findings therein made are true and correct. It is therefore ordered, adjudged and decreed by the COURT that said Master's Report be and the same hereby is ap- proved and confirmed. The Court Further Finds that there is due and owing to the eoaaplainant upon the note. . and trust deed. . described in the bill of complaint herein, the sum of Dollars and interest thereon at the lawful rate from the day of A. D. , the date of eaid Master's Report, and also the sum of Dollars which is hereby fixed and allowed as a reasonable solicitor's fee for the services of complainants solicitor., herein, and also the costs of this suit (including the Master's fees for services already rendered which are hereby fixed and taxed at the sum of Dollars, and also the fees of guardian ad litem for the infant defendant. ., which are hereby fixed and taxed at the sum of Dollars) . The Court further finds that the complainant . . , ha . . a valid and subsisting lien on the premises hereinafter described for the payment of the sums so found due as aforesaid, together with interest thereon at the rate of six per cent per annum from the date of this decree; and that the defendant . . , who ha . . been duly personally served with summons herein ac- cording to law, and the defendant who ha . . duly entered appearance . . herein, personally liable to pay the same. It is further ordered, adjudged and decreed that said Master in Chancery, shall at once and as of this day make and deliver to said complainant, 224 EQUITY PLEADING AND PRACTICE. a certificate (hereinafter called a certificate of indebtedness) in accordance with the statute in such case made and provided, con- taining the names of the parties hereto as set forth in this de- cree, the date of this decree, the amount due thereon, including interest, together with a description of the real estate herein di- rected to be sold, and the accrued costs herein, and the cost of recording a copy of said certificate, and shall at the cost of said complainant. ., file a duplicate of said certificate in the office of the Eecorder of Cook County, Illinois. It is further ordered, adjudged and decreed that upon the delivery of said certificate of indebtedness and recording a duplicate thereof, as aforesaid, said Master shall report to the Court his acts and doings in the premises with all convenient speed. It is further ordered, adjudged and decreed that if this decree and the amount due as set forth in the said certificate of indebtedness, (or in the last recorded certificate of redemption in case redemption shall have been made), with the accrued in- terest thereon at the rate of six per cent, per annum, and all other sums with the accrued interest due thereunder according to the provisions of the Statute in such case made and provided, shall not be paid and satisfied in the manner and within the time provided by law by any defendant herein, his heirs, execu- tors, administrators or assigns or by any person interested in the real estate hereinafter described through or under any de- fendant, then the real estate described in said Bill of Com- plaint, Master's Report and Certificate, to wit : FORMS. 225 situated in the County of Cook and State of Illinois, (together with all buildings and improvements there- on, and all tenements, hereditaments and appurtenances there- to belonging), or so much thereof as may be sufficient to satisfj' the amount due as set forth in said certificate of indebtedness (or under the last recorded certificate of redemption in case redemption shall have been made), with the accrued interest thereon at the rate of six per cent, per annum, and all other sums with the accrued interest due thereunder according to the provisions of the Statute in such case made and provided, and all costs of this suit hereafter accruing, including the Master's fees, disbursements and commissions, and which may be sold separately without material injury to the parties interested, shall, immediately after the expiration of fifteen months froui the date of said certificate of indebtedness, be sold by said .Mas- ter in Chancery or by his Successor in office, at public vendue lo the highest and best bidder for cash, at the Judicial Salesrooms of the Eeal Estate Board in the City of Chicago, County of Cook and State of Illinois, and if the Ju- dicial Salesrooms of the said Real Estate Board shall not then be located in said City of Chicago, then said real estate shall be sold by said Master as aforesaid at the East or Clark Street entrance to the County Building, in Chicago, Cook County, Illinois. It is further ordered, adjudged and decreed that said Mas- ter in Chancery, or his Successor in office, give public notice of the time, place and terms of such sale, by previously pub- lishing the same at least once in each week for three successive v.'eeks, in a secular newspaper of general circulation, published in said City of Chicago, County of Cook and State of Illinois, and which newspaper shall have been regularly published for at least six months prior to the first publication of said notice, the first publication of said notice to be at least twenty days prior to the day of sale; and that the complainant.., or any of the parties to this cause, or the legal holder or owner of the said certificate of indebtedness, or of the last recorded certifi- cate of redemption issued as provided by law, may become the purchaser or purchasers at such sale, and the said Master or his Successor in office may at any time, in his discretion, for good reason, adjourn a sale so advertised without giving any further notice thereof. It is further ordered^ adjudged and decreed that said blas- ter in Chancery, or his Successor in office, upon making such sale, shall report the same and his acts and doings in connection therewith to the Court with all convenient speed ; and upon the confirmation of said sale by the Court, said Master, or his Suc- cessor in office, shall execute and deliver to the purchaser or E. P. & P.— 15 226 EQUITY PLEADING AND PEACTICB. purchasers at said sale, a deed or deeds of conveyance of the premises so sold, as provided by law. It is furthee ordered, adjudged and decreed that said Mas- ter in Chancery, or his Successor in office, out of the proceeds of said sale, shall retain his fees, commissions and disbursements, including such sum or sums as may have been necessarily ex- pended by him as fees for the rental of said Judicial Salesrooms, and see that all unpaid costs are paid to the persons entitled to receive the same. He shall then pay to the legal holder and owner of said certificate of indebtedness, (or to the legal holder and owner of the last recorded certificate of redemption, in case redemption shall have been made), the amount due under said certificate (of indebtedness of redemption, as the case may be), with interest, costs and advancements as provided by law, if the remainder of the proceeds of sale be sufficient; if not suf- ficient, he shall apply such remainder in satisfaction of said amount due as far as it will reach and report the deficiency. It' there be a surplus he shall bring it into Court to abide a fur- ther order herein ; and if there be a deficiency the Court shall have full power and authority to enter a personal judgment there- for against the said defendant, (who personally liable therefor), and jurisdic- tion for that purpose is hereby reserved by the Court. It is further ordered, adjudged and decreed that the court may at any time before the sale herein provided for, appoint a receiver of said real estate hereinbefore described or any part thereof, on cause shown, and that jurisdiction for that purpose be and the same hereby is reserved by the Court. It is further ordered, adjudged and decreed that upon the sale of said real estate as hereinbefore provided for, the defend- ants to this cause, and all persons claiming by, through or un- der them, or any of them, shall be forever barred and foreclosed of and from all equity of redemption and claim of, in and to said premises, and every part thereof. And it is further ordered, adjudged and decreed that upon the execution and delivery of the deed or deeds as aforesaid, the grantee or grantees, his or their heirs, successors or assigns, be let into possession of the portion of said premises so con- FORMS. 227 veyed, and that any of the parties to this cause who may be iu possession of said premises or any part thereof, and any person who, since the commencement of this suit, shall have come into possession under them, or any of them, shall upon production of said Master's Deed, or a certified copy thereof, surrender possession of the premises therein described to such grantee or grantees, his or their heirs, successors or assigns ; and in default of so doing that a writ of assistance may issue, in accordance with the practice of this Court. ENTER: Judge. Examined and Approved: • •••>.... ••••••••••• Master in Chancery of the Court of Cook County, Illinois. •Here insert order appointing receiver where one is desired, (see form No. 102^^) ; or order continuing receiver where one has already been appointed. (See form No. 99.) 102^ Oedee Appeoving Master's Sale, Deficiency Deceee, and Appointment of Eeceivek. (Venue, court and title.) OEDEE. And now again comes said complainant, by solicitor, and this cause coming on to be further heard upon the report of sale, distribution of the proceeds, by George Fred Rush, Mas- ter in Chancery, filed herein and thereupon, on motion of said complainant's solicitor. It is ordered and decreed that said re- port of sale and distribution and the said master's doings be and are hereby fully approved and confirmed. And it appearing from the said master's report that the pro- ceeds of sale were not sufficient to pay the amount due com- plain according to the decree of this court and that there re- mains a deficiency of $ due complainant under said decree. It is therefore ordered, adjudged and decreed that said com- plainant have and recover from the sum of $ and that have execution therefore as upon a judgment at law. It is further ordered that for good cause shown, and upon facts appearing upon the records of this Court, and upon no- tice and full hearing, the Court is of the opinion that a Receiver should be appointed without requiring complainant to give any bond to any adverse party in this suit; and therefore, this Court orders that said complainant need not furnish such bond. 228 EQUITY PLEADING AND PEACTIOE. And on motion of complainant's solicitor, it is further ordered that be and is hereby appointed to act as receiver of this Court upon his filing a bond in the sum of $ , with power and authority to take possession of, and to manage, the premises foreclosed in this suit, and to lease part or all of said premises for reasonable rentals, and to collect rents, and main- tain the premises in a tenantable condition of repairs for rent- ing, and in a condition according to law, and to pay for such repairs out of rents collected by him. Said receiver is hereby authorized to employ a solicitor or attorney to aid and counsel said receiver in the proper performance of his duties as re- ceiver of this Court, and to pay such solicitor or attorney his reasonable fees for services so rendered. Said receiver shall keep a careful account of his receipts and expenditures, and in due season shall apply to the payment of the deficiency decree aforesaid, such moneys as are available, and shall file a report of his acts, and of his receipts and expenditures, and abide the further order of this Court. 102% Master's Report op Certificate Issued. Pursuant to the decree entered in the above entitled cause on , 19 . . , the undersigned Master in Chancery reports as follows : On said day , 19 . . , said Master made and delivered to said complainant , a Certificate of Indebtedness in accordance with the Statute, containing the names of the par- ties as set forth in said decree, the date of the decree, the amount due thereon including interest, being a total sum of $ Dol- lars, together with a description of the real estate to be sold by said decree, and the costs accrued in said cause, amounting to $ Dollars, and the cost $ of recording a copy of said certificate; and said Master has filed for record in the recorder's office of this county a duplicate copy of said certifi- cate. All of which is respectfully submitted this , 19 . . . Master in Chancery of the Court of County, Illinois. 102B Master's Certificate op Indebtedness. {For Prior lAenholder.) I, , a Master in Chancery of the Court of Cook County, Illinois, do hereby certify that on this day of , A. D , FOEMS. 229 a decree was entered in sair! Court of Cook County, Illinois, in a certain cause then pending in said Court, as Case Number , wlierein Complainant . . and defendant . . ; that there is now due under said decree to the sum of Dollars, with interest thereon at the rate of six per cent, per annum from the date of this certificate, and also accrued Court costs (including the Master's fees and expenses) taxed at the sum of Dollars, and also the further sum of Dollar . . , the cost of record- ing a duplicate of this certificate. I FURTHER CERTIFY that the real estate directed to be sold by said decree is described as follovvs : WITNESS my hand and seal this day of A. D (Seal.) Master in Chancery of the Court of Cook County, Illinois. STATE OF ILLINOIS, ) COUNTY OF COOK. \ ^ I, , a Notary Public in and for said County in the State aforesaid. Do hereby Certify, That , Master in Chancery of the Court of Cook County, Illinois, Avho is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me 230 EQUITY PLEADING AND PRACTICE. this day in person and acknowledged that he as such Master in Chancery signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , A. D. 19... Notary Public. 1020. Master's Ceetipicate op Indebtedness. {For Subsequent Lienholder.) Ij , a Master in Chancery of the Court of Cook County, Illinois, do here- by CERTIFY that on this day of , A. D , a decree was entered in said Court of Cook County, Illinois, in a certain cause then pending in said Court, as Case Number , wherein Complaint . . and defendant . . ; that there is now due under said decree to . . • the sum of Dollars, with interest thereon at the rate of six per cent, per annum from the date of this certificate, and also accrued Court costs (includ- ing the Master's fees and expenses) paid by the said and taxed at the sum of Dollars, and also the further sum of Dollar . . , the cost of recording a duplicate of this certificate. I FURTHER CERTIFY that the real estate directed to be sold by said decree is described as follows: FOEMS. 231 I FURTHER CERTIFY that the rights of the owner or owners, holder or holders of this certificate are subject and subordinate to the rights of the owner or owners, holder or holders, of a cer- tain certificate of even date herewith issued by me to certifying that there is now due under said decree, to said the sum of Dollars, with interest thereon at the rate of six per cent, per annum from the date of said certificate, and also accrued Court costs (includ- ing Master's fees and expenses) taxed at the sum of Dollars, and also the further sum of Dollar . . , the cost of recording a duplicate of said certificate. WITNESS my hand and seal this day of A. D (Seal.) Master in Chancery of the Court of Cook County, Illinois. (Acknowledgment same as 102B.) 102D Master's Certificate of Satisfaction. Ij , one of the Masters in Chancery of the Court of Cook County, Illinois, do hereby cer- tify that ha . . this day paid to me for the benefit of the holder of the certificate hereinafter described the sum of Dollars, the same being the full amount due as set forth in a certain certificate of indebtedness issued to on the day of , A. D. , under a certain decree rendered on the day of , A. D , in a certain cause then pending in said Court as Case Number , wherein complainant . . , and 232 EQUITY PLEADING AND PBACTIOE. defendant. . , (a duplicate of which certificate was recorded in the Recorder's Office of Cook County, Illinois, on the day of , A. D , as^ docu- ment number ), together with all lawful in- terest, costs, charges, taxes, assessments and all other sums due under said certificate according to the statute in such case made and provided. I DO HEREBY CERTIFY that the amount due the said • • ■ • under said decree has been fully paid and satisfied according to law and that said certificate of indebtedness and the duplicate thereof of record in the Recorder's Ofuee of Cook County, Illinois, have become and now are null and void and of no force or effect as liens upon the premises therein described, to wit: WITNESS my hand and seal this .... day of A. D (Seal.) Master in Chancery of the Court of Cook County, Illinois. STATE OF ILLINOIS,] l-SS. COUNTY OF COOK. J I, a Notary Public in and for said County in the State aforesaid, Do hereby Certify, That , Master in Chancery of the Court of Cook County, Illinois, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he as such Master in Chan- cery signed, sealed and delivered the said instrument as his free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of A. D. 19 Notary Public. 102B. Decree for Mechanic's Lien. This day comes the complainant, by solicitors ; FOEMS. 233 And this cause coining on to be heard upon due notice to all parties, upon the Bill of Complaint taken as confessed by de- fendant, And on the answers of the defendants and , and upon the complainant's replications to said answers, and upon the proofs and exhibits herein, and the report of , a Master in Chancery of this Court, made in pursuance of an order of reference hereto- fore entered herein, and it appearing that all the parties are properly before the Court. The Court finds that it has jurisdiction of the subject matter, and of the parties hereto, and it is ordered and adjudged by the Court that said Master's report be and the same is hereby ap- proved and confirmed. And the Court being fully advised in the premises, doth find that all the material allegations in said Bill of Complaint are proved, and that there is due the complainant, , the sum of Dollars and interest thereon at the lawful rate from the day of , A. D. 19. . . ., the date of said report. The Court further finds that said from the day of 19 ... . being the date of the contract, had and now has a good and valid mechanic's lien on the premises hereinafter described, for the payment of said sum and interest. It is therefore ordered, adjudged and decreed that if the defendants or some of them do not pay to the complainant within one (1) day from to-day, the said sum of with lawful interest thereon from 19 until paid and also the costs of this suit (including the Master's fees on the reference herein, which are hereby taxed at the sum of being for his report upon the issues and for taking evidence, and paid out for stenography), the premises described in said Bill of Complaint, and the Master's Report, to-wit: (Use part of No. 95 or 102A ante. ) 103. Master's Report in Partition Suit. (Title of court and cause.) To the honorable judges of said court, in chancery sitting : Pursuant to an order of reference heretofore entered herein, said master reports as follows: That, upon due notice to all the parties hereto, and in due form of law, parties were present, witnesses were duly sworn and testified, evidence was heard and received, and proceedings were had, as more fully appears from the transcript of pro- 234 EQUITY PLEADING AND PBAOTIOB. ceedings and evidence annexed as a part of this report; which said transcript, together with the exhibits therein mentioned, contains all the evidence submitted before the master in said cause ; and from the competent evidence so submitted, and from the confessions under the pleadings in said cause, said master finds the following matters of fact to be true : That— That — etc., etc. (If the partition bill prays only for general relief master should make following recommendations as a guide for the court's next order). Said master therefore recommends that the court appoint three commissioners, not connected with any of the parties here- in, either by consanguinity or affinity, and entirely disinter- ested, to make partition of said premises above described; that such commissioners each take and subscribe an oath or af- firmation fairly and impartially to make partition of said prem- ises, according to the rights and interests of the parties herein, as found above by said master and as may be declared by the judgment of the court, if the same can be done consistently with the interests of the parties; or, if the same cannot be so divided without manifest prejudice to the parties in interest, that such commissioners will fairly and impartially appraise the value of each piece of the premises aforesaid, and a true report make to said court. Said master further recommends that such commissioners shall go upon said premises, and if the same are susceptible of division they shall make partition thereof, allotting the several shares to the respective parties entitled thereto as aforesaid, quality and quantity considered according to their respective rights and interests, as may be adjudged by said court, designat- ing the respective shares by metes and bounds, or other proper description, and that such commissioners may be permitted to employ a surveyor, with necessary assistants, to aid therein; and if the premises aforesaid are not susceptible of division with- out manifest prejudice to said parties in interest, they shall value each piece separately. Said master further recommends that such commissioners make report in writing, signed by at least two of them, showing what they have done, and, if they shall have made a division, describing the premises divided and the shares of each party by metes and bounds, or other proper description; or, if they find that said premises cannot be divided, they shall so report, and shall report their valuation of each piece separately.. Said master further recommends that if the whole or any of the premises aforesaid sought to be partitioned cannot be di- vided without manifest prejudice to the said owners thereof, and FORMS. 235 the commissioners appointed to divide the same shall so report, the court shall order the premises so not being susceptible of di- vision to be sold at public vendue, upon such terms and notice ot sale as the court shall direct, for not less than two-thirds of the total amount of the valuation of such premises so not susceptible of division. All of which recommendations are in accordance with the provisions of the state in such case made and provided. All of which is respectfully submitted this day of Master in Chancery of the Court of County, 104. Master's Report op PiiiTiTiON Sale. (Title of court and cause.) REPORT OF PARTITION SALE BY MASTER IN CHANCERY. To the honorable judges of said court, in chancery sitting: Pursuant to. a decree made and entered by said court in the above entitled cause on the day of A. D. 19 . . , I, , master in chancery of said court, respectfully report that, in accordance with said decree, I duly advertised the premises in said decree and hereinafter described to be sold at public auction to the highest and best bidder for cash, and upon the terms and conditions set forth in said decree, at , No street, in the city of , county of , and state of , at the house of o 'clock in the forenoon, on , the day of , A. D. 19 . . , by causing a notice containing the title of said cause, the names of the parties thereto, the name of the court in which said cause was pending, a description of the premises to be sold, and a statement of the aforesaid time, place, terms anil conditions of sale, to be published for three successive weeks prior to said sale in the " , " a secular newspaper of gen- eral circulation in said county, published in said county every day except Sunday, the date of the first publication thereof being the day .of , A. D. 19 . . ; the date of the second publication thereof, being the day of , A. D. 19 . . ; and the date of the third publication thereof being the day of , A. D. 19 . . ; a certificate of which publication is hereto attached as a part of this report and is marked "Exhibit A." At the time and place designated as aforesaid for said sale, I attended to make the same, and offered said premises for sale at public auction to the highest and best bidders for cash there- for, and upon the terms and conditions set forth in said de- 236 EQUITY PLEADING AND PBACTICB. cree. And I first offered each of said lots for sale separately and singly, making note of each amoiint offered for each single lot; and the sum total of the several bids upon said last-named offer by said master was not sufScient to realize and fulfill the amount and terms set forth in said decree. I then offered the lots of said premises for sale singly and in groups to suit bid- ders ; whereupon, offered and bid the sum of ($ * ) for lot in block of said prem- ises ; offered and bid the sum of dollars ($ ) for lot in block , of said prem- ises; etc. And the total of said last mentioned bids amounted to $ I next offered said premises for sale in any groups or com- binations of lots less than the whole of said premises, and there were no bids upon said last-named offer, except the bids as set forth as aforesaid. I next offered said premises for sale entire, and there were no bids upon said last-named offer. And the bids above specified being the highest and best bids offered for said premises, I struck off and sold to said , for said sum of hundred ($ ), lot (describe premises) in block in (etc.). And I also struck off and sold to said for said sum of $ , lot (etc.). And said master further reports that said purchasers have paid said master the amounts of their respective bids, condi- tional, however, upon the confirmation by this honorable court of said master's report of sale herein, and upon receiving from said master their respective and proper deeds of conveyance of the premises respectively so sold to them as aforesaid; which said deeds of conveyance shall be in accordance with the terms and conditions set forth in said decree. All of which is respectfully submitted, this day of , A. D Master in Chancery of the Court of County, 105. Order Confirming Master's Report op Par- tition Sale and Directing Distribution. (Title of court and cause.) The report of , master in chancery, appointed by a former decree of the court herein to make sale and to carry into effect said former decree and make report of his proceed- ings, having been filed in this court on the day of , A. D. 19. ., and no objections having been filed thereto FORMS. 237 up to this date, and the court, having examined said report, doth find that the said master has in every respect proceeded in due form of law and in accordance with the terms of said decree, and that said sale was fairly made; and the court, be- ing fully advised in the premises, doth order, adjudge and de- cree that the proceedings, sale and report of said master be and the same are hereby approved and confirmed ; and it is further ordered that the said master execute and deliver to the said purchaser at said sale, a proper deed of con- veyance of the premises so sold; and that out of the proceeds of said sale said master retain his commissions and fees as fol- lows: Report upon the issues $ Preparing notice of sale Publishing notice of sale Salesroom fee, imposed by decree Commissions on sale Report of sale Report of distribution Deed Total and said master shall distribute the residue of said moneys be- tween said parties as follows : To complainant 's solicitor the sum of $ To the three commissioners heretofore appointed herein each the sum of $10.00 30.00 To complainant, for sums advanced for taxed costs To on account of her dower interest in said premises To , on account of her 2-80 interest in and to the premises sold To -aid , on account of her 39-80 interest in and to the premises sold To said , on account of her 39-80 interest in and to the premises sold Said master is directed to take and file with his report the receipts for said payments. Dated this day of , 19 . . . Judge. 106. Master's Report of Distribution in Partition Suit. 238 EQUITY PLEADING AKD PBAOTIOB. (Title of court and cause.) EEPOET OF DISTRIBUTION, , MASTER IN CHANCERY. To the honorable judges of said court, in chancery sitting : Pursuant to a further order entered in the above entitled cause on the day of , 19- -, whereby the master's re- port of sale filed in this court on the day of 19 . . , was approved and confirmed and by which order said master was directed to execute and deliver to , the purchaser at said sale, a proper deed of conveyance of said premises, and by which order, also, said master was ordered to make distribution of the proeeeus of said sale and take receipts therefor, said master reports as follows: That the amount paid by said for the premises was dollars ($ ), which said sum said master has distributed as follows: Retained by master as commissions and fees : Keport upon the issues Preparing notice of sale Publishing notice of sale Salesroom fee imposed by decree Commissions on sale Eeport of sale Eeport of distribution Deed Paid Solicitor's fees $ Paid Commissioners ' fees $ Paid complainant, for sums advanced for taxed costs $ Paid and delivered to on account of her dower in said premises $ Paid and delivered to on account of her 2-80 interest in the premises sold $ Paid to on account of her 39-80 interest in premises sold $ Paid to on account of her 39-80 interest in premises sold $ Total $ The receipts for said payments are hereto attached as a part of this report, and are marked, respectively. Exhibit A, B, C, D, B, F, G, and H. Said master reports that he has executed and delivered to FORMS. 239 purchaser at said sale a proper deed of eonveyance of said premises. All of which is respectfully submitted this day of ,19... Master in Chancery of the Court. 107. Restraininq Order Pending Application FOR Injunction. (Title of court, and of cause.) Whereas, in the above cause, a motion for the issuance of a preliminary writ of injunction has been duly filed, the hear- ing thereof being fixed for the day of , 19 . . ; and it having been made to appear that there is danger of irreparable injury being caused to complainant, before the hear- ing of said application for the writ of injunction, unless the said defendants are, pending such hearing, restrained as herein set forth, therefore complainant's application for such restraining order is granted (if security is required, then add, upon his giv- ing good security in the sum of , for making good to the defendants the damages and costs that may be awarded them by reason of the granting of this order) : Now, therefore, take notice that you, and , defendants herein, your agents, servants and attorneys, and each of you, are hereby specially restrained and enjoined from (here insert the act or acts sought to be restrained), until the hearing upon said application for a writ of injunction and the further order of the court in the premises. Judge. 108. Order Granting Preliminary Injunction. (Title of court, and of cause.) Whereas, in the above entitled cause, an application for the issuance of a preliminary writ of injunction was duly filed and set down for hearing before the court (or, before the Honorable Gr. H., a judge of said court) on the day of , 19 . . , at , notice of such application being given to and , defendants herein ; and the parties now appearing by their solicitors and being heard upon such appli- cation, and it appearing that cause exists for the granting a writ of injunction, pending the final hearing of the cause, as prayed for: It is therefore ordered that upon the complainant giving se- curity, by bond, in the sum of , conditioned that (here 240 EQUITY PLEADING AND PEACTICE. insert the proper conditions), a writ of injunction issue com- manding, restraining and enjoining the defendants, their agents, servant and attorneys, from (here set forth the special matter sought to ie enjoined), until the further order of the court in the premises. 109. "Writ of Pbeliminaey Injunction. (Title of court, and of cause.) The President of the United States, to and : Whereas, in the above entitled cause, now pending in said United States District Court in and for the district of , upon application duly made to the court (or if the judge, so state, giving his name), it was on the day of , 19 . . , ordered that a preliminary writ of injunction issue therein as prayed for in the bill of complaint herein filed and as directed in said order : Now, therefore, know ye, that you, ........ and , your agents, servants and attorneys, and each of them, are hereby strictly restrained and enjoined from (here set forth clearly the act or acts sought to be enjoined), and you and each of you are hereby commanded that you do desist and refrain from doing or causing to be done all or any of the acts and things hereinabove recited and set forth, until the further order of the court in the premises. Witness the Honorable , chief justice of the Supreme Court of the United States, this day of and the seal of said District Court in and for the district of , Clerk. 110. Oeder op Consolidation. {Title of court and of ioth causes, consolidated.) The above-entitled causes coming on this day to be heard on the motion of , solicitor for , defendant in each of the above entitled causes, and the complainants in each of said causes being present in open court by , their solicitor, and the court being fully advised in the premises, it is ordered that the above-entitled causes be and they are hereby consolidated into one cause in this court, and that all separate proceedings in each of the above-entitled causes, save the first of said causes, be stayed, and that all future orders and pro- ceedings in any of said causes be taken as in the first of said above-entitled causes. FORMS. 241 111; Order to Pay Money into Court. (Title of court and cause.) On reading the bill and answer in this cause (and upon due proof of service of notice of this motion), and on motion of J. E., solicitor for complainant, and on hearing B. F. in opposition to said motion (or, no one appearing to oppose), It is ordered that the defendant, C. D., do, on- r before the day of , A. D., , next, pay into the hands of the clerk of this court, in trust in this cause, the sum of dollars, admitted by the answer of the said defendant to be due from him, and that when such money is paid it be deposited by said clerk in trust in bank, to the credit of this cause, there to remain until the further order of this court. 112. Praecipe for Setting Down Cause for Argument oe Hearing. (Title of court and cause.) To Clerk of said Court: Set down above cause for argument upon the demurrer (or, plea) filed to the bill. Set down above cause for argument on defendant's ob- jection for want of parties. Set down above cause for hearing on bill and answer. Set down above cause for hearing on pleadings and proofs. 113. ' Stipulation. (Title of court and cause.) It is hereby stipulated by and between the complainant in the above-entitled cause, by , his solicitor, and the defendant in said cause, by , his solicitor, that, etc. (Here insert the matter of the stipulation; as, for example, that such cause may be referred to , one of the masters in channery of this court, to take testimony and report the same to the court, together with his conclusions of fact and of law thereon, with all convenient speed.) Dated, 19... A. B., Complainant, By , His Solicitor. C. D., Defendant, By His Solicitor. 214, Writ of Ne Exeat. (Title of court and of cause.) The President of the United States, to , the United States marshal in and for district of : E. P. & P.— 16 242 EQUITY PLEADING AND PBACTICE. Whereas in the above entitled cause in equity now pending in the United States District Court in and for the district of , it has been made to appear by satisfactory proof to the said court (or, to the district justice or judge) that , defendant in said cause, is equitably indebted to the complainant, and that the said , defendant, de- signs quickly to depart from the United States, and thereby defeat the remedy sought by complainant and greatly to prejudice the rights of said complainant: Therefore you are hereby ordered and commanded that with- out delay you cause the said to give good and suffi- cient bail or security in the sum of dollars, to be by you approved, that he will not depart beyond the limits of the United States without leave of this court first had; and in case said , defendant, fails to give bail or security as aforesaid, you are commanded to keep him in custody until the further order of court or until he gives the bail or security above required. Witness the Honorable , chief justice of the Su- preme Court of the United States, this day of , 19. ., and the seal of said District Court in and for the district of , Clerk. 115. Writ op Sequestration. (Title of court, and of cause.) The President of the United States, to : Whereas, in the above entitled cause in equity, pending in the United States District Court in and for the district of , it was, on the day of ordered and decreed that , defendant, should V^ere briefly state requirements of the order or decree). And it now appearing that the said , defendant, has wholly failed to obey and perform such order and decree, and that for such failure a writ of attachment has been hitherto duly issued from the clerk's office of this court for the attachment of the person of said defendant, but that said writ has been returned by the marshal of this district unserved for the reason that said defendant cannot be found within the juris- diction of this court, and that for cause shown a writ of sequestration has been ordered to issue for the seizure of the estate of said , defendant, for the purpose of com- pelling obedience on his part to said order and decree herein- before mentioned: FORMS, 243 Now, therefore, know ye that, Iiaving confidence in your pru- dence and fidelity, you are hereby authorized, empowered and commanded to seize and take possession of (here describe the estate, or portion of it, to be seized, as the real and personal estate of said within , or certain realty or personalty), and the rents and profits of said realty to collect and receive, and possession of said personalty to take and keep until the further order of the court in the premises. Witness the Honorable , chief justice of the Su- preme Court of the United States, this day of , with the seal of said United States District Court in and for district of 116. Weit of Assistance. (Title of court, cmd of cause.) The President of the United States, to , marshal of the district of , Greeting : Whereas in the above entitled cause it has been made to ap- pear to the said United States District Court in and for the district of , that under the decree of said court heretofore rendered in the above case, and the proceed- ings had for the inf orcement thereof, the said , com- plainant as aforesaid {or, H. B., the purchaser at the fore- closure sale, or whoever the party entitled to the writ may be), is now entitled to be put in possession of the following realty (describing it), or to have delivered up to him the following described personal property: Now, therefore, you, as United States marshal for said district of , are hereby directed and com- manded that you forthwith put the said into posses- sion of the real estate above described (or, cause to be deliver- ed to said the personal property above described), and that you cause the defendants in the above suit, their agents, servants and attorneys, to forthwith yield possession of said property in obedience to the decree heretofore entered in this case. Hereof fail not. Witness the Honorable , chief justice of the Su- preme Court of the United States, this day of 19 . . . with the seal of said United States District Court in and for the district of Clerk. 117. Bill of Revbtoe. (Title of court, and of cause.) To , the Judges of said Court : herein avers and shows to this honorable court 244 EQUITY PLEADING AND PBAOTICE. that since the beginning of this suit (here insert event that has caused the abatement and necessity of reviving the cause, as the death of party, and set forth who are the representa- tives, heirs or others against whom it is sought to revive). Wherefore, by reason of the premises, this suit has become stayed or abated; and to revive, continue and further proceed therein it has become necessary to make said and parties hereto, to which end prays and moves the court to enter all proper orders as to notice to the parties to be substituted, and for reviving and continuing said cause and substituting said and said as parties (complainant or defendant) and for the filing of such pleadings or amendments as may be necessary. 118. Bill of Review on Ground of New Matter. (Title of court, and of cause.) \ Bill of review on behalf of J To the Judges of said Court : Petitioner avers and shows that in a certain suit entitled as above, and brought in this court to the term, 19. ., thereof, this petitioner was defendant {or, complainant) there- in, and that at the term, 19 . . , of said court, upon a hearing therein, a final decree therein was entered in said cause greatly to the prejudice and injury of this petitioner, which said decree is entered at large upon the records of this court and to which reference is prayed. And this petitioner avers and says that lately and since the entry of said final decree aforesaid he hath discovered that (here set forth the new matter or the new evidence relied on as ground of review, with proper averments to show its material- ity, and also show that the party was not in fault in not ad- ducing such matter at the hearing). Wherefore, for said causes alleged, said decree should be reviewed, reversed and set aside; and to the end that petition- er may be permitted to show and prove the matters aforesaid, petitioner prays process by subpoena against , re- quiring him to appear hereto and due answer make, and that upon the hearing hereof the said decree may be reviewed, reversed and set aside, and such other and further orders and decree be made as may to the court seem proper. United States of America, \ District of 5 POBMS, 245 I, , being duly sworn, do say that I am petitioner in the foregoing bill of review, that I have read the same, and that the matters and things therein set forth are true. Subscribed and sworn to before me this day of , 19.. 119. Bill of Review foe Errors on Pace of Record. (Title of court, and of cause.) 1 } Bill of review on behalf of J To the Judges of said Court: Petitioner respectfully avers that in a certain suit entitled as above, and brought in this court to the term, 19 . ., thereof, this petitioner was defendant {or, complainant) therein, and that at the term, 19..., of said court, upon a hearing therein, a final decree was entered in said cause greatly to the prejudice and injury of your petitioner, which said decree is entered at large upon the records of this court, and to which reference is prayed. And petitioner avers and says that said decree so entered is upon the face of the record erroneous for that (here set forth the particular matters m which error is alleged, and show how such alleged errors i/rejiidice peiitioner.) Wherefore, as said errors appear on the face of the record, and are greatly prejudicial to petitioner and his rights in the premises, petitioner prays that said decree may be reviewed, reversed and set aside. And to that end petitioner prays pro- cess by subpoena against , requiring him to appear and and answer hereto and show cause, if he may, why said decree should not be reviewed and set aside, and prays such further orders and decrees be made as to the court may seem just. 120 Judge's Certificate of Evidence Heard IN Open Court. {Title of court, and of cause.) Be it remembered, and certified that on the hearing of this cause, at the above term of court, upon the bill of complaint, answer to said bill, and the replication thereto, the following proceedings and evidence were had and taken: C. D., a witness produced on the part of complainant, was sworn and testified as follows: 246 EQUITY PLEADING AND PBAOTIOB. (Here insert his testimony including stenographer's affidavit, as follows): And the complainant further offered in evidence one trust deed marked for identification, as complainant's exhibit 1, and four promissory notes marked for identification as complain- ant's exhibits 2, 3, 4, 5, in words and figures as follows: (Here copies.) And further, E. F., a witness on the part of the defendant, was sworn and testified as follows: (Here insert his testimony in full also verified by stenographer's affidavit.) And further the defendant offered in evidence a certain deed marked for identification as defendant's exhibit 1, in words and figures, as follows, to-wit: (Here insert copy.) Be it further remembered, and certified, that the foregoing were all the proceedings and evidence had and taken on the hearing of said cause. And, inasmuch as the matters above set forth do not fully appear of record in said cause, the tenders this certifi- cate of the proceedings and evidence, and prays that the same may be certified under the hand and seal of the judge of this court, and thereby made a part of the record in said cause, and it is accordingly certified and made a part of the record of said cause. Dated this A. D. 19... ss. Judge. State of , County of I, do hereby certify that I am a shorthand re- porter and that the above and foregoing is a true and correct transcript of all the evidence taken by me in shorthand upon the examination of witnesses in open court, and of the pro- ceedings had upon the hearing of this cause. Dated this day of , A. D. 19.. Subscribed and sworn to before me, this day of • ••••••} XL. U. XiJ . . Notary Public. 121. Petition for Appeal. (Title of court, of cause, and address to judges.) Tour petitioner, the in the above entitled cause, would respectfully represent and show that in the above en- titled case pending in the United States District Court in and roEMs. 247 for the district of , there was entered at the term, 19 . . , of said court, a final decree greatly to the prejudice and injury of your petitioner, which said decree is erroneous and inequitable in many particulars. Wherefore, in order that your petitioner may obtain relief in the premises and have opportunity to show the errors com- plained, your petitioner prays that he may be allowed an appeal in said case to the court, and that the proper orders touching the security required of him may be made. 122. Citation Upon Appeal. (Title of court and of caiise.) United States of America, to : You are hereby notified that in a certain case in equity in the United States District Court in and for the dis- trict of , wherein is complainant and and are defendants, an appeal has been allowed, the therein to the and you are hereby cited and admonished to be and appear in said court at , days after the date of this citation, to show cause, if any there be, why the order and decree appeal- ed from should not be corrected, and why speedy justice should not be done the parties in that behalf. "Witness, the Honorable , judge of , this day of A. D. 19... Judge of THE NEW RULES OF PRACTICE FOR THE COURTS OF EQUITY OF THE UNITED STATES PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES In Force February 1, 1913 FEDERAL EQUITY RULES Rule 1. District court always open for certain purposes — Orders at chambers. The district courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process and of making and directing all interlocutory motions, orders, rules and other proceedings preparatory to the hearing, upon their merits, of all causes pending therein. Any district judge may, upon reasonable notice to the parties, make, direct, and award, at chambers or in the clerk's oflSce, and in vacation as well as in term, all such process, commissions, orders, rules and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. Rule 2. Clerk's office always open, except, etc. The clerk's office shall be open during business hours on all days, except Sundays and legal holidays, and the clerk shall be in attendance for the purpose of receiving and disposing of all motions, rules, orders and other proceedings which are grantable of course. Rule 3. Books kept by clerk and entries therein. The clerk shall keep a book known as "Equity Docket," in which he shall enter each suit, with a file number corresponding to the folio in the book. All papers and orders filed with the clerk in the suit, all process issued and returns made thereon, and all appearances shall be noted briefly and chronologic- ally in this book on the folio assigned to the suit and shall be marked with its file number. The clerk shall also keep a book entitled "Order Book," 251 252 EQUITY PLEADING AND PBACTICE. in wliieh shall be entered at length, in the order of their making, all orders made or passed by him as ol course and all orders made or passed by the judge in chambers. He shall also keep an "Equity Journal," in which shall be entered all orders, decrees and proceedings of the court in equity causes in term time. Separate and suitable indices of the Equity Docket, Order Book and Equity Journal shall be kept by the clerk under the direction of the court. Rule 4. Notice of orders. Neither the noting of an or- der in the Equity Docket nor its entry in the Order Book shall of itself be deemed notice to the parties or their solic- itors; and when an order is made without prior notice to, and in the absence of, a party, the clerk, unless otherwise directed by the court or judge, shall forthwith send a copy thereof, by mail, to such party or his solicitor and a note of such mailing shall be made in the Equity Docket, which shall be taken as sufficient proof of due notice of the order. Rule 5. Motions grantable of course by clerk. All motions and applications in the clerk's office for the issuing of mesne process or final process to enforce and execute decrees; for taking bills pro confesso; and for other proceedings in the clerk's office which do not require any allowance or order of the court or of a judge, shall be deemed motions and ap- plications grantable of course by the clerk; but the same may be suspended, or altered, or rescinded by the judge upon special cause shown. Rule 6. Motion day. Each district court shall establish regular times and places, not less than once each month, when motions requiring notice and hearing may be made and disposed of; but the judge may at any time and place, and on such notice, if any, as he may consider reasonable, make and direct all interlocutory, orders, rulings and proceed- ings for the advancement, conduct and hearing of causes. If the public interest permits, the senior circuit judge of the FEDEEAL EQUITY BULES. 253 circuit may dispense with the motion day during not to ex- ceed two months in the year in any district. Rule 7. Process, mense and final. The process of sub- poena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the bill; and, unless otherwise pro- vided in these rules or specially ordered by the court, a writ of attachment and, if the defendant cannot be found, a writ of 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. Rule 8. Enforcement of final decrees. Final process to execute any decree may, if the decree be solely for the pay- ment of money, be by a writ of execution, in the form used in the district court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, as, for example, for the execution of a convey- ance of land or the delivering up of deeds or other docu- ments, the decree shall, in all cases, prescribe the time within which the act shall be done, of which the defendant shall be bound, without further service, to take notice; and upon affidavit of the plaintiff, filed in the clerk's office, that the same has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which, if attached thereon, he shall not be discharged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court, or a judge thereof, upon motion and affidavit, enlarging the time for the performance thereof. If the delinquent party cannot be found a writ of sequestration shall issue against his estate, upon the return of non est inventus, to compel obedience to the decree. If a mandatory order, injunction or decree for the specific performance of any act or contract be not complied with, the court or a judge, besides, or instead of, proceedings against the diso- bedient party for a contempt or by sequestration, may by 254 EQUITY PIaEADIJ ^1 Richards v. R. R. Co 1^ Roach V. Glos ^ 106 Rollins V. Henry 1^^ Ryder v. Bateman 1°^^ Sandif er v. Sandif er ^2 Schnadt v. Davis 119, 132 Schneider v. Seibert 69 Shadewald v. White 1^3 Shields v. Barrow 62 Shields v. Bush ' 60 Singer v. Steele 1^1 Smith V. Trimble 134 South Chicago Brew. Co. v. Taylor 73 Spencer v. Goodlett 37 Stafford v. Brown 106 Stevenson v. Austin 25 Stirratt v. Excelsior Mfg. Co 56 Stokes V. Farnsworth 80 Stone V. Ferry 48 Story V. Livingston 121 Stout V. Cook 16 Sturgeon v. Burrall 25 Sullivan v. R. R. Co 53 Supervisors v. Miss. B. R. Co 39 Swift v. Castle 117, 136 Thomson v. Wooter 144 Thorworth v. Sheetz 130 Tobin V. Walkinshaw 22 Travers v. Ross 80 Troy V. Corning 132 Turner v. Bank 51 table of cases cited. 285 [eefebences are to pages] U. M. Life Ins. Co. v. Slee 118 Union Bank v. Stafford 25 Van Zanten v. Van Zanten 43 Varick v. Smith 53 Vogel V. Ripper 54 Walker v. Powers 65 Walsh V. Smy the 72 Wanneker v. Hitchcock 152 Waska v. EQeiser 121 Weaver v. Alter 6:> Westervelt v. Library Bureau 97 Whiting V. Bank 59 Whitney v. Mayo 2G Wilcox V. Allen 60 Wilder v. Keeler 57 Williams v. Breitung 76 Wilson V. Eggleston 48 Wilson V. King 72 Wood y. Morrell 55 Woodland Bank v. Heron I53 Wooster v. Gumbriner II5 137 Worthington v. Lee 99 Wright V. Frank 62 Wylie V. Bushnell II7 ] 29 137 Yarnell v. Brown I43 INDEX [references are to pages] Accounting, before master in federal court 271 reference to master 118 Action, elements of cause of 31 form of in Equity 47 Address, part of bill 37 Admissions may be upon information and belief 126 in pleadings void as against infants and persons non compos 126 expressly made in pleadings 126 by averments of bill 126 and confessions of default 127 Affidavits, in chancery 133 Affirmative pleas 91 Affirmative relief as a rule not granted upon an answer .... 105 Allegata et probata 51 Allegations, when unanswered in the answer, effect of . . 101, 102 of time and place in Equity 52 of defendant's claims 52 upon information and belief 52 Alternative grounds, bill may be based on 53 Amendments 70 a material amendment vacates all defaults 73 correction of clerical mistakes 273 in federal court, 256 leave of court 72 of bUl in federal court 258 Answer, as evidence 100, 101 certain allegations need not be answered 103 compelling full answer 103, 144 contents in federal court 259 (287) 288 INDEX. [eeferbnces are to pages] Answer — Continued exceptions to 106 dutj' of defendant in federal court 255 must answer every allegation in bill 102 proofs must correspond with 104 in support of plea 93 time for in federal court 254 to amended bill in federal court 260 two-fold nature of 100 waiving 107 Anticipating defenses 39 Appearance 68 effect of 68 special or limited 68 voluntary 68 Assistance, writ of in federal court 254 Attachment 146 Auxiliary jurisdiction 17 Beginning suit 32 Bill 32 parts of 37 allegations must cover entire controversy 52 contents of in federal court 257 cross bill 60 of discovery 34 dismissal of 76 77 of certiorari 34 of interpleader 34 original 32 not original 33, 36, 57 not original, chart of 65 of particulars in federal court 74 of Review 37, 57, 53 of Revivor 37 of Revivor and supplement in federal court 261 supplemental 36 to carry into effect a decree 37 INDEX. 289 [kEPERENCES ABE TO PAGES] Bill — Continued to examine witnesses de iene esse 34 to impeach a decree 37 to impeach, suspend or carry into effect a decree 63 to perpetuate testimony 34 to suspend a decree 37 Brief, before master, requesting particular findings ..120, 121 Cases, decisions only illustrate the law 2 Case law 1 nature of 12 in Continental Europe 13 Cause of action 31 Certificate of evidence 131 Certiorari, bill of 34 Chancellor 15 Charging part of bill 39 may be omitted or retained . . ^ 45 in federal courts may occur in stating part 54 Common Counts, none in Equity 32 Common law, its source, basis and nature 1, 4, 12, 13 Conclusion of fact, is a different thing from a conclusion of law 48 stated in pleadings should not be confused with con- elusions of facts stated by witnesses. The former are proper, the latter are improper 49 Conclusions of law, to be avoided in pleadings 50 found by master in his report need not be objected or excepted to 122 Concurrent jurisdiction 15 Confederating part of bill 39 may be omitted 45 Confirmation of master 's report 123 Contempt, for not obeying decree 146 Continuances in federal court 268 Cross bill 37, 60, 61, 63 parties to 62 i^O INDEX. [references are to pages] Oross bill — Continued may be used by defendant to cover defense arising during dependency of suit 61 Counter claim in federal court 259 Be Bene Esse 17 Decisions, only illustrate the law 2 are based upon facts, reasons 11 contain authoritative expres:3ions upon the law 2 Decrees, and decretal orders 142 enforcement of 14G, 253 duty of lawyer to prepare 46, 47 final and interlocutory 143 must be supported by the pleadiiips arid proofs 51 no default decree against infants or persons non compos 145 of default 14-1, 145 order or mandate of the court 46 preparation of 142 pro confesso 144 pro confesso, vacation of 145 pro confesso in federal court 255 Default orders, and decrees 144, 145 is not in itself a decree 145 Defaults, neither defaults or decree pro confesso, can be valid against infants or persons non compos 126 Defenses to actions, chart of 78 how presented in federal court 259 Defendants must be named in prayer for process 44 Defensive pleadings, chart of 108 Deficiency decree in federal court 254 Demurrers 78 admissions by 125 chart of grounds of 87 forms of 81 function of 81 general 83 grounds of 82 grounds of 85 INDEX. 291 [eEFERENCES ABE TO PAGES] Demurrers — Continued incorporated in an answer in federal court 105 nature of 79 none to an answer 105 no demurrer to answer, and no exception, in federal court. Motion to strike instead 261 no demurrer to evidence in chancery 130 ore tenus, oral, 85 preserving same in answer 105 raises question of law 79 signing 89 speaking 88 special 83 Demurrer, waiving 88 Depositions, in federal court 264 in chancery, as preserving evidence 132 Disability of a party 39 Disclaimer 99 Discovery 17 bill of 34 in federal court 268 Dispensable parties 22 Diverse citizenship of parties 28 Equity law, nature of 15 Jurisdiction distinct 18 offer to do 53 procedure differs from common law 18 Events, facts, definition of 31 Evidence, abstract of 140 admissions 125, 126 admissions implied from the kind of pleading 125 affidavits 133 and objections before masters 116, 117 Bill to obtain and preserve against loss 34 denials implied by failure to answer a particular allegation 125 duties of lawyer as to 46 292 iNPBx. [EEFE^^ENCES ABE TO PAGES] Evidence — Continued exceptions unnecessary as a rule 136 express admissions in the pleadings 126 in chancery 125 even rejected testimony should appear in the record . . 129 implied by failure to answer in federal court 125 in chancery, different forms of preserving same 130, 131, 132 in chancery, motion to dismiss for want of evidence, effect of 130 in federal court 264, 265, 266, 267 judges, certificate of 131 objections upon 135 omitted exhibits may be produced in court 135 oral in chancery ■ 128 petition for leave to present new evidence 141 preparing for trial 125 preserving same by decree 134 preserving same in writing in chancery 129 taking testimony in chancery 127 testimony of experts in patent eases in federal courts . . 265 though rejected, should appear in record under certain circumstances 138 when need not be preserved 134 when objections and rulings of master should be brought to the attention of the court 138 Evidential facts 32, 48 stated in charging part of a bill 40 Examiners 112 Exception for scandal not allowed in federal court 56 to answer 106 to answer abolished in federal court 107 to evidence 136, 137 Exclusive jurisdiction 15 !pxhibits, should be annexed to pleading, and will aid de- fective statements 51 Facts, conclusions of fact are allowable 81 conclusions of 48 controverted 30 INDEX. 293 [references are to pages] Pacta — Continued duties of lawyer as to pleading 46 evidential 32, 48 findings of, conclusions of, determining, declaring by the court 46 in issue 30, 48 law, mandate of court 46 material 30, 31, 32 only ultimate facts should be stated 47 operative facts 31 or events, alone originate, vary or terminate rights; invest or divest rights 31 pleading and proving 47 propositions of 31 rights arise from 31 should be positively averred 51 the definite, material facts must be pleaded 32 the same facts mean the same cases 3 the summarized 32 transactions of 31 ultimate 31 Pinal decree 143, 144 Pormal parties 22 Porms of action in Equity 47 Porms (see special index of forms) 301 Fraud, evidential facta should be pleaded which indicate the fraud ; general charges should not be made .... 53 Pundamentals of law 2 General interrogatory part of bill may not be omitted . . 45 General issues, none in Equity 32 Hearing, in court 140 upon bill and answer 105, 106 before masters. 118 Idiots as parties 28 Impertinence "»■• ^5 294 INDEX. [references are to pages] Impertinence — Continued in federal court 256 incidental Jurisdiction of equity to give common law relief 17 Indispensable parties 21 Infants, and incompetents in federal court 273 and persons non compos, no admission, or default, or decree pro confesso, is valid against 126 fact of infancy of defendants must be stated in bill . . 44 Information 32 and belief 52 Injunction, prayer for 43 an federal courts 273, 274 temporary, perpetual 148, 149, 150 Interlocutory decree 143, 144 Interpleader, bill of 34 Interrogatories, before examiner or notary 127, 128 in federal court 74, 268 general, part of bill 41 part of bill 45 Intervention in federal court 261 Introductory, part of bill 37 Issues 30 facts controverted by tbe pleadings 48 should be clearly indicated by the pleadings 49 Jurisdiction, auxiliary 17 by consent 16 concurrent 15 consequence of suing in the wrong court 18 , equity, exclusive 15i grounds of, stated in federal court 4ll Incidental 17|' of equity distinct ig of equity to determine suit according to common law . . 25^ part of bill 4(1 part of bill may be omitted 4^ territorial 17 Joinder of causes of action in federal court 258 INDEX. 295 [references are to pages] Laches, Bill must not indicate 53 Law, conclusion of in pleadings 50 determined by the court from particular facts, also termed as conclusions of law, or as priiicii)les of law, or findings of law 46 right (not men, might) is supreme 11 Limitations, Statute of 32 Lis Pendens, as notice 33 Lunatics, as parties 28 Mandate of the court 46 Master, compensation in federal courts 272 in chancery 113 in chancery, acts and powers limited by statute, rules of court, and order of reference 113 in Chancery, duty and power in federal court 114 in Chancery, duties of 113 in Chancery, evidence and objections before .... 116, 117 in Chancery, his power over exhibits 116 in Chancery, must draft their own reports 120 in Chancery, nature of hearings before 118 Master in chancery, production of books and papers before 115 powers of in federal court 270 proceedings before in federal court 270 in Chancery, report of 119, 120 references to in federal courts 269 report as preserving evidence 131 report, confirmation thereof 123 report, court may make findings in addition to those of master 123 report, court's action thereon 123 report in federal court 270 report, objections thereto in court 122 report, objections thereto in federal court 272, 273 report, objections to 121, 122 Material facts 30, 31, 32 Misjoinder of parties 26 Motion to dismiss, instead of dumurrer 84 296 INDEX. [references are to pages] Motion to dismiss — Continued to strike defense from answer in federal court 261 of course and not of course 69 of course in federal court 252 Multifariousness 55 Multiplicity of suits 55 Natural laws '^ Nature of Equity Jurisdiction 1 Necessary parties 21, 22 Ne exeat, prayer for in bill 43 Next friend, parties 28 Nominal parties 22 Non compos, fact of and guardianship must be stated .... 44 Notice, by lis pendens 33 Objections to evidence, when brought before the court from the master's office 138 to evidence 136 Offer to do equity 53 Original bill 33 Chart of 35 Oyer in equity — Particulars, further statement of in federal court 256 Parties, by representation 25 chart of 24 correcting defects of 27 creating or dividiag interest to oust the jurisdiction . . 25 defendant 21 dispensable 22 Parties, diverse citizenship 28 formal 22 idiots and lunatics 28 in cases of joint and several demands in federal court 263 indispensable 21 infant 28 in federal court 261, 262, 263, 264 INDEX. 297 [rEFEHENOBS ABE TO PAGES] Parties — Continued misjoinder of 26 naming as plaintiffs or defendants 25 necessary 21 necessary and indispensable, non joinder of 26 next friend 28 nominal 22 non joinder 26 objections as to 26 partners should be named as individuals 28 plaintiff 20 principles governing 20 proper 22 to obtain oath of ofScer of a corporation 26 to cross biU 62 unnecessary 22 who are deemed as in a cause 26 Parts of bill, which parts may be omitted — Perpetuate testimony 17 biU to 34 Petition 32 Plea 90 admissions by 125 anomalous 91 as a separate pleading in federal court, is abolished. ... 96 chart of 95 form of 91 function of 90 grounds of 93 negative 91 pure or afSrmative 91 supported by answer 92 testing sufficiency of 96 to jurisdiction 93 trial up 96 verification of 97, 98 waiver of ^... 98 298 INDBX. [nfeiPEEENCES AEE Tb PlGfas] Pleadings, chief pleadings in equity 30 definition ^0 defensive, chart of • 108 function of 30 purpose of , 30 serve as record notice 30 technical formS of ar6 abrogated in federal court 256 Positive law • 6 Prayer, foir process in federal court may be omitted 44 for relief, part of bill 43 for special writ or for process or summons 43 Precedents 1, 2, 13 Principles Of law 2 Prescriptive constitution . . . j 7 Process 66 ill federal eburt 253, 254 manner of serving in federal do'aH 255 prayer for, part of bill 43 Pro Confesio deferee 144 Production of books and papers before master 115, 116 of docilments in fedei'al eOurt 74, 268 Proofs, limited by the pleadings 30 Proper parties 22 Puis darrien continuance 61 Pure pleas 91 Reason 1 Reasons, are the facts 11 the nature of 11 Reeei-^ers 151, 152, 153, 154 Record 6n appeal in f6d6ral court 274, 275, 276 Reference to master discretionary Vhen 114 Rehearing, petiti6n for 59 petitibii for in federal court 272 Relief, bilLs praying 34 Replidati'oh 109 Amendment instead of 70 iND^. 299 [references are to pagS)s] Replication — Continued effect of omitting 109 function of 109 signing of Ill special 110 unnecessary in federal court 110 waiver of 110 Reply when required in federal court 260 Report of master in chancery 119, 120 Res Ad judicata, facts adjudicated 30 Restraining orders 148 Review, bill of 37, 58 Revivor, bill of 37, 57 in federal court 264 Rights, always spring from facts, events 31 and law 7 Scandal 55, 56 exception for not permitted in federal courts 56 in federal court 256 striking out in federal courts 56 Secundum allegata ei probata 51 Self preservation, law of 7 Sequestration 146 Signature of bill 44 of counsel in federal court 257 Special commissioners 112 interrogatory, part of bill 42 interrogatory part of bill may be omitted 45 Stare decisis 1, 2 as a rule of property titles 4 in construing statutes 4 Stating part of bill 38, 46 Statute law 1 its nature 5, 6 Stockholders bill in federal court 258 Subpoena duces tecum 116 Substance 1 300 INDEX. [bbferencbs are to pages] Suit, when begins 32 Summons 66 prayer for, part of bill 43 Supplemental bill 57 Territorial jurisdiction 17 Testimony de bene esse 17 in chancery 127, 128 Testing the legal sufficiency of an answer 105 Theory, or nature and form of i-elief desired 47 Transaction of fact 31 Transfer of cause from equity to law in federal court 256 Ultimate facts 31 or conclusions of facts, defined 48 are proper in pleading but improper in testimony 49 in master's report 119 should be pleaded in answer 104 Unnecessary parties 22 Usury, the evidental facts should be pleaded which indicate the usury ; general charges should not be made 53 Verification of bill 44 Who seeks equity must do equity 53 Writ, prayer for any special writ 43 • FORMS [references ase to pages.] address part of bill 157 affidavit in support of motion to set aside order pro confesso 170 affidavit of stenographer 202 amendment to a bill 192 answer 180, 181, 182, 183 answer, conclusion of, insisting that complainant has an adequate remedy at law 184 answer setting up statute of limitations, frauds 183 appearance 166, 167 assistance, writ of 243 bill, charging part of 158 bill, confederating part 158 bill, interrogatory part 158 bill, juridiction part 158 bill, parts of 157 bill, prayer for process 159 bill, prayer for relief 159 bill, stating part 158 bill to foreclose 161 bill, short form 161 bill of review 244, 245 bill of revivor 243 brief of lawyer suggesting findings desired from master 208 certificate of evidence 245 certificate of indebtedness to subordinate lien holder. . 230 certificate of indebtedness under new Illinois statute . . 228 certificate of satisfaction 231 charging part of bill 158 (301) 302 FORMS. [references are to pages.] citation for appeal 247 confederating part of bill 158 consolidating cases 240 decree, deficiency 218 decree for mechanics lien 232 decree of sale in foreclosure 212 decree under Illinois jstatute providing for sale ^fter redemption period 222 default order 167, 168 demurrer 1T2, 173 demurrer, plea, answer combined in Federal court . . . 184 disclaimer 184 exceptions for insufficient answers to allegations of bill 185 exceptions in Court to master 's findings 211 exceptions for slander or impertinence 185 injunctions 239, 240 injunction, prayer for in bill 160 interrogatory part of bill 158 introductory part of bill 157 jurisdiction part of bill 158 master's certificates of fees and charges . 199, 200, 201, 202 master's certificate of evidence 198 master's certificate of redemption 220 master's certificate of sale 219 master 's deed 221 master's notice as to closipg proofs 195 master's notice of day for evidence 194 master's notice of draft of his report 208 master's i^pceipts for 4istribution of proceeds 217 master's repprt 197^ 193 master's report in partition suit 233 master's report of distribution in partitipn 237 lOBMS. 303 [eEFEBENCES ABE TO PAGES.] master's report of issuing certificate under Illinois Statute providing for sale after redemption period. . 228 master's report of partition sale 235 master's report of sale and distribution of proceeds . . . 216 master's report upon exceptions referred 186 master's subpoena duces tecVftn 196 motion to dismiss 186 motion to strike for insufiScient answers 186 Re Exea,t, prayer for in bill 160 notice of motion 188, 189 notice of time and place of sale and of amounts due . . . 215 objections and exceptions to master's ruling 209 objections to findings of mas^r • • • : ^^^ order allowing plea as being sufficient 179 order appointing guardian ad litem 171 order appointing receiver in foreclosure cases 227 order approving master's sale, dpficjiency (iscree, and appointing receiver 227 order confirming sale, deficiency decree and continuing receiver 218 order confirming master's report 211 order confirming master's report of partition sale . . . 236 order denying motion to dismiss 174 order fixing fees upon a cpntest or failure to pay 203 order for production of papers 190, 191 order granting leave to amep^ 192 order granting preliminary injunction 239 order of court to answer further upon coming in of master's report upon exceptions 187 order of reference to master 193, 194 order of reference upon exceptions 186 order overruling demurrer 175 order overruling plea as being insufficient 179 order setting aside default .-. 170 304 FORMS. [BEFEEBNCES ABE TO PAGES.] order sustaining demurrer 175 petition for appeal 246 petition for appointment of guardian ad litem 170 petition for leave to amend 191 petition for production and inspection of papers 189 plan of master's work in Building and Loan Ass'n foreclosure 206, 207, 208' plan of master's work in a foreclosure case 203, 204 plea 175, 176, 177, 178 praecipe for commission on interrogatories 166 praecipe for process 165 praecipe for setting cause for argument on demurrer. . . 241 praecipe for subpoena to witness 166 process, prayer for in bill 159 relief, prayer for 159 replication 187 return of Marshall (U. S.) 166 review, biU of 244, 245 revivor, bill of 243 sequestration, writ of 242 stating part of bill 158 stipulation 241 subpoena, prayer for in Federal Court 159 summons 160 summons, prayer for in bill 159 CASES ON EQUITY PLEADING AND PRACTICE STATE AND FEDERAL By GEORGE FREDERICK RUSH OF THE CHICAGO BAR CHICAGO CALLAGHAN AND COMPANY 1913 COPYEIGHT, 1913 BY CAliLAGHAN AND COMPANY PREFACE It is always a question with a teacher whether a case book should present entire cases compelling students to study other propositions as well as those on procedure; or whether the collection should be of cases entire ex- cepting parts not bearing on procedure; or, again whether everything in a case should be omitted except the particular paragraphs on the subject taught. While the first is proper for a general course in read- ing miscellaneous cases, it takes more time to teach sub- jects in that way ; and the last method, above mentioned, would make a collection of cases somewhat like a digest. The author pursues the second method, and where a rea- sonably short case on the particular point could not be found, a case is selected from which the parts not in point are omitted. But where this is done the omission is noted at the foot of such case. In order to obtain especially clear statements to illus- trate and emphasize the principal rules of equity pro- cedure a few federal circuit court cases were included together with state and federal supreme court cases. It is to be remembered that until 1911 the federal equity jurisdiction was lodged in the federal circuit courts, and that since that time, it has been lodged in the federal district courts. This book of cases may be used separately or as a com- panion to the author's brief text book on Equity Plead- iii PREFACE ing and Practices in the state and national courts. If desired, the text and the cases may be obtained from the publisher bound in a single volume. Where the two are used together, attention is called to the first chapter of the text book, which is designed to give a thorough ex- position of the science and method of case-law, and of the doctrine of stare decisis, so often misunderstood. George Feedeeiok Rush. January, 1913. CONTENTS PAGES CHAPTER I Stare decisis 1 CHAPTER II Parties 10 CHAPTER ni Diverse citizenship in federal courts 33 CHAPTER IV Infant parties 52 CHAPTER V Process 58 CHAPTER VI Bill, allegations of a 64 CHAPTER VII Impertinence 92 CHAPTER Vm Multifariousness 99 CHAPTER IX Laches 108 CHAPTER X Demurrers 110 V VI TABLE OF CONTENTS CHAPTER XI Pleas 126 CHAPTER XII Answers 158 CHAPTER XIII Exceptions to answers 184 CHAPTER XIV Cross-bills 187 CHAPTER XV Amendments 203 CHAPTER XVI Evidence , 211 CHAPTER XVII Masters in chancery 235 CHAPTER XVIII Decrees 244 CHAPTER XIX Petition for rehearing, requisites of 271 CHAPTER XX Bill of review, requisites of 275 I STARE DECISIS 1. GILLHAM V. MADISON CO. R. R. CO. 49 III. 485 Me. Chief Justice Breese delivered the opinion of the court : The question presented by this record is, has the owner of a servient heritage a right, by embankment or other artificial means, to stop the natural flow of the surface water from the dominant heritage, and thus throw it back upon the latter? The case was this : Plaintiff in error was the owner of a tract of land less elevated than the land in the neigh- borhood, from which all the water that fell upon it from rains or otherwise, flowed on to the land of the plaintiff, and which, by means of a depression in his land, ran off his land to adjoining land, and thence into a natural lake. The defendant, a railroad company, made a large embankment on the line of plaintiff's land, entirely fill- ing up this channel, thereby throwing the water back on plaintiff 's land. Negligence in so doing, without leaving an opening in the embankment for the water to flow on and escape, was alleged in the declaration. A demurrer was sustained to the declaration. This is a very interesting question, demanding more time for its thorough examination than we have at our disposal. We have looked into the authorities cited on both sides, and find, in Massachusetts, the courts of that state recog- nize the right of the servient heritage to obstruct the natural flow of surface water, according no right of action in behalf of a person injured thereby. Gannon v. Harga- 2 GILLHAM V. MADISON CO. B. B. CO. don, 10 Allen, 109 ; Dickson v. Worcester, 7 ib. 19 ; Inhab- itants of Franklin v. Fish, 13 ib. 212 ; Parker v. Newbury- port, 10 Gray, 28; Flagg v. Worcester, 13 ib. 601. The doctrine of these cases wholly ignores that most favored and valuable maxim of the law, sic utere tuo, ut alienum non laedis, a maxim lying at the very foundation of good morals, and so preservative of the peace of society. In Kauifman v. Griesemer, 26 Penn., the doctrine was recognized, that the superior owner might improve his lands by throwing increased waters upon his inferior through the natural and customary channels, and in Martin v. Riddle, ib. 415, it was held, where two fields adjoin, and one is lower than the other, the lower must necessarily be subject to all the natural flow of water from the upper one, and the owner of the lower ground has no right to erect embankments whereby the natural flow of the water from the upper groimd shall be stopped ; nor has the owner of the upper ground a right to make any excavations or drains by which the flow of the water is directed from its natural channel, and a new channel made on the lower ground, nor can he collect into one channel waters usually flowing off into his neighbor's field by several channels, and thus increase the wash upon the lower fields. Miller v. Laubach, 47 ib. 154, is to the same effect. This is the doctrine of the civil law, and has found favor in almost all the common law courts of this country and of England. Acton v, Blondell et al, 12 Mees & Wels. 324; Mason v. Hill, 5 B. & Ad. 1; Bellows v. Sackett, 15 Barb. 96 ; Laumier v. Francis, 23 Mo. 181 ; Earl v. DeHart, 1 Beasley, 280; Laney v. Jasper, 39 111. 46; Livingston V. McDonald, 21 Iowa, 160. Other cases might be cited, but we will content ourselves, for the present, with citing some comments of Professor Washburne, in his able Treatise on the Law of Easements and Servitudes, on the case of Martin v. Riddle, supra: In Martin v. Riddle, the plaintiff was the dominant STARE DECISIS 3 proprietor, as is the plaintiff in error here, and in his comments on the case he says : ' ' The owner of the upper field has a natural easement, as it is called, to have the water that falls upon his own land flow off the same upon the field below, which is charged with a corresponding servitude, in the nature of dominant and servient tene- ments." p. 355. To the same effect is 3 Kent's Com. 563. The case of Livingston v. McDonald, supra, was a case of drainage, where it was held, if the ditch increased the quantity of water upon the plaintiff's land, to his injury, or without increasing the quantity, threw it upon the plaintiff's land in a different manner from what the same would have naturally flowed upon it, to his injury, the defendant was liable for the damage thus occasioned, even though the ditch was constructed by the defendant in the course of the ordinary use and improvement of his farm. By the same reasoning, the reverse of the proposition must be true, that a person cannot, by an embankment or other artificial means, obstruct the water in its natural flow, and thus throw it back upon the upper proprietor. Nevins v. City of Peoria, 41 111. 502 ; Eudd v. Williams, 43 ib. 385. The declaration stated a good cause of action, and the demurrer should have been overruled. For the error in sustaining it, the judgment is reversed and the cause remanded. Judgment reversed. 2. HASKETT ET AL. v. MAXEY ET AL. 134 Ind. Rep. 187 Under the provisions of sections 2483 and 2487, E. S. 1881, it was held, in the case of Martindale v. Martindale, 10 Ind. 566, that a second or subsequent wife, having no children by her husband, took a life estate only in his 4 HASEETT ET AL. V. MAXET ET AL. lands where he left, upon his death, children alive by a f ormer "wif e. The decision was rendered at the May term of this court in the year 1858. There is an unbroken line of decisions, rendered by this court, extending from that date to the May term, 1881, placing the same construc- tion upon this statute, as will be seen from an examina- tion of the following cases, namely : Ogle v. Stoops, 11 Ind. 380; Rockhill v. Nelson, 24 Ind. 422; Louden, Admr., V. James, 31 Ind. 69; Longlois v. Longlois, 48 Ind. 60; Long V. Miller, 48 Ind. 145 ; Eussell v. Eussell, 48 Ind. 456; Hendrix, Exec. v. McBeth, 61 Ind. 473; Swain v. Hardin, 64 Ind. 85; Hendrix v. Sampson, 70 Ind. 350; Chisham v. Way, 73 Ind. 362. But at the May term, 1881, the ease of Utterback v. Terhune, 75 Ind. 363, was decided, in which it was held that the second or subsequent wife, having no children by her husband, took a fee in his land, where he died leav- ing children alive by a previous wife, and that upon her death the children by the former wife became her forced heirs. This is now settled as the correct construction of this statute. Caywood v. Medsker, 84 Ind. 520 ; Hendrix V. McBeth, 87 Ind. 287 ; McClamrock v. Ferguson, 88 Ind. 208; Flenner v. Benson, 89 Ind. 108; Flenner v. Travel- lers Ins. Co., 89 Ind. 164; Bryan v. Uland, 101 Ind. 477; Thorp V. Hanes, 107 Ind. 324; Erwin v. Garner, 108 Ind. 488 ; Gwaltney v. Gwaltney, 119 Ind. 144. The construction now placed upon this statute should be deemed correct, but as to the wisdom of overruling a line of decisions w'hich had been steadily adhered to for the period of twenty-three years, we have nothing to say, further than to remark that stability in the decisions of a court of last resort is greatly to be desired. To over- rule precedents, which have become recognized rules of property, and the basis of contract relations, unsettles titles, disturbs business transactions, and introduces an element of uncertainty into the administration of justice from which the public suffer great inconvenience. STARE DECISIS 5 As -was said in the case of Rockhill v. Nelson, supra: "There are some questions of law, the final settlement of which is vastly more important than how they are set- tled." We fully endorse the language of the world's greatest commentator, when he says: "It is an established rule to abide by former precedents, where the same points come again in litigation: as well as to keep the scales of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from according to his private sentiments; he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land ; not delegated to pronounce a new law, but to maintain and expound the old one. ' ' 1 Black. Com. p. 69. In this case, we are asked by the appellants to over- rule a line of decisions of many years ' standing, for the purpose of returning to a line of decisions which has long since been abandoned. We are thus asked to create a new confusion in order to avoid an old one. This we can not do. It is our duty to adhere to the construction of this statute which it has steadily received for the last eleven years, and in doing so we are constrained to hold that upon the death of Thomas Brookbank his widow, Mary Brookbank, took a fee-simple interest in one-third of the land of which he died seized. It follows from this holding that his children, at the time they executed quit- claim deeds to Williams, had no interest in the land in controversy to convey to him. The general rule is that a quitclaim deed does not estop the person executing it from asserting an after-acquired interest in the land therein described. This general rule has its exceptions, but the case before us does not fall 6 HASKETT ET AL. V. MAXET ET Ah. within such exceptions. Avery v. Akins, 74 Ind. 283; Van Rensselaer v. Kearney, 11 How. 297 ; Shumaker v. Johnson, 35 Ind. 33; Graham v. Graham, 55 Ind. 23; Bryan v. Uland, supra. A judgment in partition does not, ordinarily, vest in the co-tenants a new title, but each has the title he held before such judgment. It is true that the pleadings in a partition suit may be so framed as to raise and settle, in that kind of action, questions of title, but where nothing more than partition is sought, no question of title is settled. It has been held by this court that a complaint of the character of the one set out in the special finding in this case, does not tender a question of title. Bryan V. Uland, supra; Habig v. Dodge, 127 Ind. 31. As a general rule, the statute of limitations does not begin to run until there is a right of action. The children of Thomas Brookbank had no right to the possession of the land in controversy, nor did they have any interest in it until the death of Mary Brookbank, their stepmother, and for this reason the statute of limi- tations did not begin to run as to them while she lived. Wright V. Tichnor, 104 Ind. 185 ; Butterfield v. Beall, 3 Ind. 203 ; Nicholson v. Caress, 59 Ind. 39; Mettler v. Mil- ler, 22 N. E. Eep. 529; Kirk v. Smith, 9 Wheat. 241, 3 Wash. Real Prop. (4th Ed.), 147. As we have said, it was held by this court for a period of twenty-three, years that the interest taken by the widow, under the facts existing in this case, was a life estate only, and that the fee in the land was in the chil- dren by the former marriage. In the case of Swain v. Hardin, 64 Ind. 85, which involved a distribution of the , proceeds of the sale of land in a partition proceeding, the widow being a second wife without children, this court said: "The plaintiff and defendants were tenants m common of the land, the plaintiff having an estate for life in one-third thereof, and the defendants having the fee, subject to the plaintiff's life-estate in the third." STABE DECISIS 7 Acting upon the assvimption that this court had placed the true construction upon the statute of descents, and that Mary Brookbank was the owner of a life estate only in the land in controversy, and that the children of Thomas Brookbank was the owner in fee, they sold and conveyed it to William, through whom the appellants claim their title. Since the decisions upon which they relied, and upon the faith of which the contract and pur- chase were made, have been overruled, the appellees claim that, inasmuch as they conveyed by quitclaim deeds only, they are entitled to both the purchase price paid and the land. If the rights of the parties are to be determined by the construction of the statute now placed upon it, this claim must prevail, but if they are to be determined by the construction of the statute placed upon it at the time the land was purchased and conveyed, the claim of the appellees must fail. Courts of last resort are often constrained to change their rulings on questions of the highest importance. When this is done, the general rule is that the law is not changed, but that the court was mistaken in its former decision, and that the law is, and always has been, as expounded in the last decision. But to this general rule there is a well established and well understood exception. This exception is that, "After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment." Douglass v. County of Pike, 101 U. S. 677; Anderson v. Santa Anna, 116 U. S. 361; Insurance Co. v. Debolt, 16 How. 415; Gelpecke v. Du- buque, 1 Wall. 175; Havemeyer v, Iowa Company, 3 Wall. 294; Olcott v. Supervisor, 16 Wall. 578; Taylor v. Ypsilanti, 105 U. S. 72. 8 HASKETT ET AL. V. MAXEY ET Ali. In Insurance Co. v. Debolt, supra, it was said: "The sound and true rule is, that if the contract when made was vahd by the laws of the state, as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation can not be impaired by any subsequent act of the legislature of the state, or decision of its courts, altering the construc- tion of the law." So, in Douglass v. County of Pike, supra, it was said: "The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment ; that is to say, make it pros- pective, but not retroactive." Sutherland on Statutory Construction, section 319, says: "A judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be adhered to for the protection of those rights. To divest them by a change of the construction is to legislate retroactively. The constitutional barrier to leg- islation impairing the obligation of contracts applies also to decisions altering the law as previously expounded so as to affect the obligations of existing contracts made on the faith of the earlier adjudications." The case of Farrior v. New England Mortgage Secur- ity Co., 88 Ala. 275, is in point here. In that case Farrior and his wife executed to the company a mortgage on lands held by the wife to secure a loan, at a time when it was held by the Supreme Court of Alabama that she had power, under the statutes of that state, to so encumber her land. After the execution of the mortgage, and before suit was brought to foreclose it, the court overruled the eases holding that she had power to encumber her sepa- rate real estate in this mode, and deciding that she had no such power. It was held ia the suit to foreclose the mortgage that the later decisions could not affect the validity of the mortgage, which was valid under the con- STARE DECISIS 9 struction placed upon the statutes of Alabama at the time such mortgage was executed. Had this court adhered to its former rulings, to the effect that the second or subsequent wife took a life estate only in the lands of her husband, in case she nad no chil- dren by him, where he died leaving children by a former wife, there would be no question as to the title of the appellants to the land in dispute. We are of the opinion that their rights are to be de- termined under the law as it was declared by this court at the time the appellants sold and conveyed the land. Such being our conclusion, it follows that the circuit court erred in its conclusion of law upon the facts stated in its special finding. In answer to the position that this conclusion is in con- flict with the case of Bryan v. Uland, supra, it may be remarked that the conclusion in that case was reached by following the general rule appHcable to a change in the rulings of the courts of last resort, where the con- struction of a statute is not involved. The exception to this general rule, it seems, was not considered. Had the court 's attention been called to this exception, there is no reason to doubt that the conclusion would have been different. In so far as the opinion in the ease of Bryan v. Uland, supra, may be in conflict with this opinion, it is modified. It appears that the appellees Elizabeth Pearce, Hester A. Mitchell, and Mary E. Jarrett have never parted with their interests in the land. They are, consequently, en- titled to judgment for their respective interests. Judgment reversed, with directions to the circuit court to re-state its conclusions of law on the facts found, and render judgment thereon for the appellants as against all the appellees except Elizabeth Pearce, Hester A, Mitchell, and Mary E. Jarrett. Filed Feb. 16, 1893; petition for a rehearing over- ruled April 26, 1893. II PARTIES 3. HICKLEN V. MARCO 56 Fed. Rep; 549 Judge Hawley: The real question is whether Car- many was an indispensable party to the suit. He was undoubtedly a proper party defendant, but was he such a necessary party as to 4eprive the court of any juris- diction to proceed without him? The supreme court of the United States divides parties in equity suits into three different classes: (1) Formal parties, who have no interest in the controversy between the immediate litigants, but have such an interest in the subject-matter as may be conveniently settled in the suit, and thereby prevent further litigation; (2) necessary parties, who have an interest in the controversy, but whose interests are separable from those of the parties before the court, and will not be directly affected by a decree which does complete and full justice between them; (3) indispensa- ble parties, who not only have an interest in the subject- matter of the controversy, but an interest of such a na- ture that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Formal parties may be parties or not, at the option of the complainant. Necessary parties must be made par- ties if practicable, in obedience to the general rules which require all persons to be made parties who are interested in the controversy, in order that there may be an end of litigation ; but this general rule in the national courts is subject to the exception that, if such parties 10 PARTIES 11 are beyond the jurisdiction of the court, or if making them parties would oust the jurisdiction of the court, the suit may proceed to a final decree between the parties be- fore the court, leaving the rights of the absent parties untouched, and to be determined in any competent forum. Indispensable parties must, of course, be made parties, and the court cannot proceed without them. Shields v. Barrow, 17 How. 139; Ribon v. Railroad Co., 16 Wall. 450; Williams v. Bankhead, 19 Wall. 571; Kendig v. Dean, 97 U. S. 425. Having made Carmany a party defendant to the orig- inal bill, and Carmany having appeared as a defendant, and it affirmatively appearing that he was a citizen and resident of the same state as complainant, was it the duty of the court to dismiss the bill on the ground that it had no jurisdiction; or, in such a case, could the court grant leave to complainant to dismiss as to Carmany for the purpose of giving the court jurisdiction of the case? There is no question but what the complainant could, under the provisions -of section 737 of the Revised Stat- utes of the United States, and the rules and practice of the supreme court of the United States, have maintained , this suit without making Carmany a party defendant, un- less it affirmatively appears that he is an indispensable party. In Clearwater v. Meredith, four persons had made a contract with a citizen of Ohio, and three of the four were citizens of Indiana. Suit was brought against the three in the circuit court of Indiana, and upon a plea to the jurisdiction it was held that the nonjoinder of the fourth was justified by the act of 1839 (section 737, Rev. St. U. S.). The court said: "It is well known that the act of 1839 was intended so to modify the jurisdiction of the circuit court as to make it more practical and effective. Where one or more of the defendants sued were citizens of the state, and were jointly bound with those who were citizens of other states, and who did not voluntarily appear, the plaintiff 12 mCKLEN V. MAECO had a right to prosecute his suit to judgment against those who were served with process ; but such judgment or decree shall not prejudice other parties not served with process, or who did not voluntarily appear. Now, it is too clear for controversy that the act of 1839 did intend to change the character of the parties to the suit. The plaintiff may sue in the circuit court any part of the defendants, although others may be jointly bound by the contract who are citizens of other states. The defend- ants who are citizens of other states are not prejudiced by this procedure, but those on whom process has been served, and who are made amenable to the jurisdiction of the court. And in regard to those whose rights are in no respect affected by the judgment or decree it can be of no importance of what states they are citizens. If one of the defendants should be a citizen of the same state with the plaintiff, no jurisdiction could be exercised as between them, and no prejudice to the rights of either could be done. The plea to the jurisdiction seems not to be well taken, and it cannot be sustained." 21 How. 492. Equity rule 47 provides that : "In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by rea- son of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in their discretion, proceed in the cause without making such per- sons parties ; and in such cases the decree shall be with- out prejudice to the rights of the absent parties." The general principles touching this question and ap- plicable to this case are well expressed in Payne v. Hook, where it was claimed that the proper parties for a decree were not before the court, 'as the bill showed that there were other distributees besides the complainant.' The court said: PARTIES 13 "It is undoubtedly true that all persons materially interested in the subject-matter of the suit should be made parties to it; but this rule, like all general rules, being founded in convenience, will yield whenever it is necessary that it should yield in order to accomplish the ends of justice. It will yield if the court is able to pro- ceed to a decree, and do justice to the parties befbre it, without injury to absent persons, equally interested in the litigation, but who cannot conveniently be made par- ties to the suit. The necessity for the relaxation of the rule is more especially apparent in the courts of the United States, where oftentimes the enforcement of the rule would oust them of their jurisdiction, and deprive parties entitled to the interposition of a court of equity, of any remedy whatever." 7 Wall. 431. Hotel Co. V. Wade, 97 U. S. 20; New Chester Water Co. V. Holly Manuf'g Co. (3d Circuit), 53 Fed. Eep. 19, 3 U. S. App. 264, 3 C. C. A. 399. Upon the oral argument it was contended by appel- lants' counsel that Carmany was a necessary and indis- pensable party to the suit, and many imaginable difficul- ties were suggested, especially in making a final distri- bution of the money which complainant was required to pay into court. If Carmany should be permitted to in- tervene and share in the distribution, such intervention would only be allowed upon condition that he should first pay his proportionate share of the expenses incurred by appellants in defending the suit. They would not be prejudiced or injured, for they would get all they were entitled to receive by the decree. So would Car- many. If Carmany does not ask to intervene and share in the distribution, and the court orders the money to be paid to appellants in the proportion to which they are respectively entitled, they certainly could not complain, and Carmany 's rights would not be affected. If com- plainant is compelled to bring suit against Carmany, and therein required to pay more money than he would 14 mCKLEN V. MABCO if this suit had been brought in the state court against all the parties, that is a matter that does not concern the appellants. The truth is that none of the supposed difficulties may ever arise, and, if they do, they can be settled, when presented, upon the well-established prin- ciples^ of equity and justice, without any injury or preju- dice either to appellants or to Carmany. Conceding that it would have been more convenient and more in accord with the ordinary practice to have brought this suit in the proper form against all the parties, still, under the rules announced in the United States courts, Carmany cannot be considered as an indispensable party to the suit. His interest in the property involved in this suit is separate and distinct, and is not so interwoven and bound up with the other parties defendant herein that no decree could be made against them without necessarily affecting him. The rights of the parties defendant who were citizens of Oregon could be and were adequately and fully determined without any prejudice to the rights of Carmany or to themselves. His interest in the prop- erty was not in any manner affected by the decree, and, as was said in Horn v. Lockhart, 17 Wall. 579, "the ques- tion always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented they are indispensable parties; for, if their interests are severable, and a decree with- out prejudice to their rights can be made, the jurisdic- tion of the court should be retained, and the suit dis- missed as to them." It therefore follows that the objec- tions made in this case to the jurisdiction of the coui't upon the ground that Carmany was a citizen and resident of the same state as complainant was met and obviated by allowing complainant to amend his bill by dismissing Carmany as a defendant. Vattier v. Hinde, 7 Pet. 252, 261 ; Claiborne v. Waddell, 50 Fed. Eep. 368. The dismissal as to Bunnell did not in any manner PARTIES 15 ajffeet or prejudice the rights of any of the defendants. He owned an undivided three-fourths interest in the property, and, having declined to join the complainant in instituting the suit, he was made a party defendant, upon the erroneous theory that in the event the mort- gage should be held valid, and the complainant allowed to redeem, complainant could compel him to contribute and pay his proportion of the amount to be paid as might be decreed by the court. If Bunnell refused to become a complainant, he could not by so doing deprive Hicklen of bringing the suit in his own name. In such event, Hicklen, as a part owner of the equity of redemp- tion, had the undoubted right to bring and to maintain the suit in his own name against the defendants who were in possession of any part or portion of the land; but he could not, in such suit, compel Bunnell to join with him in the redemption thereof. 2 Jones, Mortg. Sees. 1063, 1089. If complainant is willing to pay the whole amount that is decreed by the court to be paid for the redemption of the whole land, in order to obtain his undivided one-fourth interest in the property, it is diffi- cult to see upon what grounds the defendants can com- plain. If they get by the decree all the money that they are legally entitled to receive, it certainly matters not to them whether it is all paid by complainant or whether Bunnell pays his proportion. If Bunnell profits by the settlement of the principles involved in this suit, that is a matter of substantial benefit to him, but is of no detri- ment to them if their rights in the premises are fully secured by the decree of the court in this suit. Bunnell was not, under the facts of this case, a necessary party defendant, and the court did not err in allowing the bill to be dismissed as to him. (Note: Part of opinion not in point, omitted.) 16 PINLET V. BANK OF THE UNITED STATES 4. FINLEY V. BANK OF THE UNITED STATES 11 Wheaton 304-308 Maeshaul,, C. J.: Statement of facts: This is a bill in chancery, brought by the Bank of the United States against James Finley to obtain a decree for the sale of property mortgaged for the security of a debt due the bank. The mortgage deed was executed on the 28th of Sep- tember, 1822, and contains a recital of debts due to the bank to the amount of $6,240, on account of which a note ■\yas executed on that day to the bank for that sum, pay- able sixty days after date. At the November term of the circuit court of the United States for the district of Ken- tucky the bill was filed, stating the consent of the mort- gagor to an immediate sale of the mortgaged property, although the day of payment was not arrived ; and on the same day an answer was filed consenting to a decree for the sale. A^decree was immediately entered by consent of parties directing the marshal to sell the property. The court then proceeds to direct the marshal, after de- ducting the expenses of sale, his commission and the costs, to pay the bank the sum of $6,240, with interest from the date of the note. The sale was made in pursu- ance of the decree, and the report thereof was returned to the court by the marshal. At the succeeding term William Coleman filed his peti- tion, stating, among other things, that he held a prior mortgage on the same lands, and praying that he might be made a party defendant to the suit. His petition was rejected, and he prayed an appeal to this court, which has been dismissed as irregularly granted. After dis- missing this petition the circuit court pronounced a decree affirming the sale made by the marshal, and direct- ing the credit to which Finley should be entitled for the money paid out of its proceeds to the bank. This PARTIES 17 decree also considers the debt due to the bank as amount- ing to $6,240, with interest from date of the note. The mortgage to Coleman is filed, and appears to be dated three days anterior to that made to the blank. A suit to obtain a sale of the premises was instituted in the state court in March, 1823, and was depending when the final decree was pronounced at the suit of the bank. After the final decree had been pronounced, Finley filed a petition praying that the sale and decree might be set aside ; alleging, among other reasons therefor, that Cole- man, the prior mortgagee, had not been made a party, although the existence of his mortgage was known to the bank. The prayer of the petition was rejected, and Finley has appealed to this court. The counsel for the plain- tiff in error insists that this decree ought to be reversed, because it was pronounced in a case in which proper par- ties were not before the court. It cannot be doubted that Coleman ought regularly to have been a party defendant, and that, had the existence of his mortgage been known to the court, no decree ought to have been pronounced in the cause until he was introduced into it. But this fact was kept out of view until the decree was pronounced, the sale made, the money paid to the creditor, and the report of his pro- ceedings returned by the marshal. If the manner in which the sale was made and the money directed to be paid be unusual and exceptionable, it was done by con- sent, and the error is not imputable to the court. The only question presented to the judges by this peti- tion was whether a decree, completely executed by a sale of the property and payment of the purchase money, should be set aside and the suit reinstated, for the pur- pose of introducing a party who ought regularly to have been an original defendant, but who was not shown, by any proceedings in the cause, concerned in interest until the decree was made and executed. There would, cer- E. p. c— 2 18 PATNE V. fiOOK tainly, be great inconvenience in such a practice; and, if it be admissible in any case, on which the court gives no opinion, it must be where the mischief resulting from a rejection of the petition would be irremediable. This is not shown to be a case of that description. Coleman's mortgage cannot be affected by this decree. His rights cannot be extinguished by it. His suit in the state court will proceed as if this decree had never been pronounced. The purchasers under the decree of the circuit court take the land subject to prior incumbrances, and have, prob- ably, taken this incumbrance into consideration in the price given for the land. But, be this as it may, they do not complain or object to their purchase in conse- quence of the cloud hanging over the title. Coleman's rights cannot be affected ; and if Finley has suffered by selling his land subject to a hen, it is an injury which he has knowingly brought upon himself. This is not, then, a case for such an extraordinary measure as open- ing a decree made by consent, after it has been carried into execution, on the petition of the party who has given that consent. We do not think the decree is errone- ous because the prior mortgagee was not made a defend- ant, that fact not having appeared to the court until the decree was completely executed. rfNoTE: Part of above opinion not in point was omitted.) 5. PAYNE V. HOOK 7 Wall. 425 Justice Davis: But it is said the proper parties for a decree are not before the court, as the bill shows there are other distributees besides the complainant. It is undoubtedly true that all persons materially interested in the subject-matter of the suit should be made parties PABTIEB 19 to it; but this rule, like all general rules, being founded in convenience, will yield, whenever it is necessary that it should yield, in order to accomplish the ends of jus- tice. It will yield if the court is able to proceed to a decree and do justice to the parties before it without injury to absent persons, equally interested in the liti- gation, but who cannot conveniently be made parties to the suit. Cooper's Eq. PL, 35. The necessity for the relaxation of the rule is more especially apparent in the courts of the United States, where, oftentimes, the enforcement of the rule would oust them of their jurisdiction, and deprive parties en- titled to the interposition of a court of equity of any remedy whatever. West v. Randall, 2 Mason 181; Story's Eq. PL, sec. 89 and sequentia. The present case affords an ample illustration of this necessity. The complainant sues as one of the next of Mn, and names the other distributees, who have the same common interest, without stating of what particular state they are citi- zens. It is fair to presume, in the absence of any aver- ments to the contrary, that they are citizens of Missouri. If so, they could not be joined as plaintiffs, for that would take away the jurisdiction of the court; and why make them defendants, when the controversy is not with them, but the administrator and his sureties? It can never be indispensable to make defendants of those against whom nothing is alleged and from whom no re- lief is asked. A court of equity adapts its decrees to the necessities of each case, and should the present suit ter- minate in a decree against the defendants, it is easy to do substantial justice to all the parties in interest, and pre- vent a multiplicity of suits, by allowing the other dis- tributees, either through a reference to a master, or by some other proper proceeding, to come in and share in the benefit of the litigation. West v. Randall, 2 Mason 181; Wood V. Dummer, 3 Mason 317; Story's Eq. PL, supra. 20 PAYNE V. HOOK The next objection which we have to consider is, that the sureties of the administrator are not proper parties to this suit. Their liability on the bond in an action at law is not denied, but it is insisted they cannot be sued in equity. If this doctrine were to prevail, a court of chancery, in the exercise of its power to compel an ad- ministrator to account for the property of his intestate, would be unable to do complete justice, for if, on settle- ment of the accounts, a balance should be found due the estate, the parties in interest, in case the administrator should fail to pay, would be turned over to a court of law, to renew the litigation with his sureties. A court of equity does not act in this way. It disposes of a case so as to end litigation, not to foster it ; to diminish ^uits, not to multiply them. Having power to determine the liability of the administrator for his misconduct, it nec- essarily has an equal power, in order to meet the possi- ble exigency of tbe administrator's inability to satisfy the decree, to settle the amount which the sureties on the bond, in that event, would have to pay. Besides, it is for the interest of the sureties that they should be joined in the suit with their principal, as it enables them to see that the accounts are correctly set- tled, and the administrator's liability fixed on a proper basis. If they were not parties, considering -the nature and extent of their obligation, they would have just cause of complaint. It is said the bill is multifarious, but we cannot see any ground for such an objection. A bill cannot be said to be multifarious unless it embraces distinct matters which do not affect all the defendants alike. This case involves but a single matter, and that is the true condi- tion of the estate of Fielding Curtis, which, when ascer- tained, will determine the rights of the next of kin. In this investigation all the defendants are jointly inter- ested. It is true the bill seeks to open the settlements with the probate court as fraudulent, and to cancel the PARTIES 21 receipt and transfer from the complainant to the admin- istrator because obtained by false representation; but the determination of these questions is necessary to ar- rive at the proper value of the estate, and in their de- termination the sureties are concerned, for the very object of the bond which they gave was to protect the estate against frauds which the administrator might commit to its prejudice. The decree of the circuit court for the district of Mis- souri is reversed, and this cause is remanded to that court with instructions to proceed in conformity with this opinion. 6. LONGWORTH v. TAYLOR 1 McLean 395-410 Opinion of the Cotjet : From the supplementary bill lately filed it appears a part of the lot in controversy was sold by the complainant to Canby, and that he assigned his interest to Carneal; and this equity being still in Carneal, it is objected that he is not made a party to the suit. Is Carneal interested in this controversy? It is admitted that he might file his bill against Taylor, and set up his equity through his assignees ; and if he may do this, is he not interested in the subject-matter of the biU? Is not the court called upon to act on an equitable title which includes the title of Carneal? And if he be not a party to the suit, will his rights be concluded by the decree ? It is true he may look to the complainant for a deed, but is he not the assignee of the plaintiff to the extent of the equity he claims ? The supreme court has decided that an assignee in equity must make his assignees a party when he asks a specific execution of the contract; and this is required to be done that the court may see that the rights of the assignor are duly protected. But 22 LONGWORTH V. TAYLOR how much stronger is the reason to make the assignee of the equity a party on a hill filed by the assignor. The interests of the assignee are directly involved, and how can these be protected unless he be made a party to the suit? Garneal may have some special ground of equity against Taylor which the plaintiff has not, and a decree in the case, as it now stands, would not prevent him from setting up this equity hereafter. And if the defendant may be again harassed with the assertion of a right which is necessarily involved in this suit, he may well object to the further progress of the suit until Carneal shall be made a party, if, under the limited jurisdiction of this court, it can be done. He has a right to insist that the whole controversy shall be decided in the present suit. It is a well settled principle that the assignee of an equity is a necessary party when such equity is set up in a court of chancery. Carneal can be made a party as a co-plaintiff, so that no objection arises to this from the limited jurisdiction of this court. That some incon- venience may arise in making assignees parties, where they are very numerous, may be admitted ; but the same inconvenience arises in many other cases, and for which the law has as yet provided no remedy, except in cases where a few persons may sue in behalf of themselves and. others. The question raised as to the ten per cent on the purchase money due, under the new agreement, up to the time of the tender, is reserved until the next term, at which time, Carneal having been made a party, the court will be prepared to enter a final decree. (Note: Portion of above case, not bearing on Equity Pleading and Practice, is omitted.) 7. GRAY V. LARRIMORE 4 Sawyer U. S. 638 The Chief Justice: The doctrine of equity, when some of the parties are out of the jurisdiction of the court, is well stated by Mr. Justice Story in his Equity Pleadings, sees. 81, 82 and 83. After commenting upon the general rule that all persons legally or beneficially interested in the subject-matter of a suit in equity should be made parties, and stating an exception with refer- ence to persons without the jurisdiction, who cannot con- sequently be reached by the process of the court, the learned justice says : "It is an important quahfication ingrafted on this particular exception that persons who are out of the jur- isdiction, and are ordinarily proper and necessary par- ties, can be dispensed with only when their interests will not be prejudiced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court. The doctrine ordinarily laid down on this point is that when the persons who are out of the jurisdiction are merely passive objects of the judgment of the court, or their rights are merely inci- dental to those of the parties before the court, then, inas- much as a complete decree may be obtained without them, they may be dispensed with. But if such absent persons are to be active in the performance or execution of the decree, or if they have rights wholly distinct from those of the other parties, or if the decree ought to be pursued against them, then the court cannot properly proceed to a determination of the whole cause without their being made parties. And under such circumstances, their being out of the jurisdiction constitutes no ground for proceeding to any decree against them or their rights or interests ; but the suit, so far at least as their rights and interests are concerned, should be stayed ; for to this 24 GEAT V. LARRIMORE extent it is unavoidably defective. In many instances the objection ■will be fatal to the whole suit. ' ' The case of a bill brought by one partner against several other copartners, one of whom was out of the jurisdiction, praying for an account and dissolution of the copartnership, is given by Story in illustration of this last position, that the objection will sometimes be fatal to the whole suit, for "the absent partner," says the justice, "would have a distinct and independent inter- est, and would seem to be an indispensable party, since the decree must affect that interest, and indeed, would pervade the entire operations of the partnership." The case of Browne v. Blount, 2 Euss. fej-Mylne 83, is also referred to as illustrating the same position. In that case a judgment creditor of one Blount had sued out a writ of elegit upon his judgment, and had filed his bill to reach certain real estate which was vested in trustees upon certain trusts, under which Blount was entitled to the rents and profits during his life. The trustees and certain parties interested under the trusts, and others having a charge upon the trust estates, were made par- ties, but Blount was abroad, and had been for years previous to the institution of the suit, and was not, there- fore, made a party. The court held that "Blount being the person whose interests were sought to be affected by the decree, the suit could not proceed in his absence." See in further illustration of the doctrine stated: Mid- ford's Chan. PI. 31, 32; Inchiquin v. French, 1 Ambler 33; Fell v. Brown, 2 Brown's Chan. Caa. 276; Beaumont V. Meredith, 3 Ves. & Beams 180; Evans v. Stokes, 1 Keen 32; Eussell v. Clark's Executors, 7 Cranch 98; Mallow V. Hinde, 12 Wheat. 194; Fuller v. Benjamin, 23 Me. 255; Sparr v. Scoville, 3 Cush. 578. In Evans v. Stokes the bill was filed to have the affairs of a joint-stock company, which was a co-partnership, wound up and settled under the decree of the court, and accounts of the partnership taken, and a sale of some PARTIES 25 portion of the property made by the directors set aside, and it was held that all the members of the company, however numerous, must be made parties. "It is per- fectly obvious," said the master of the rolls; "that a suit, where all the accounts of the partnership are to be taken, and the rights of all the parties are to be deter- mined, as between themselves, and under the various circumstances in which they stand in relation to each other, some of them, for instance, having paid their calls, and others having omitted to do so, cannot be prosecuted in the absence of any of those parties." The case of FuUer v. Benjamin is equally pointed. In that case four persons had been co-partners, two of whom had become insolvent, and were out of the state; the suit was brought by one of the partners against the solvent member. On demurrer for want of parties the <;ourt said: "In cases of partnership it must be difficult, if not impracticable, to proceed in equity without the presence of all the co-partners or their legal represen- tatives. Each must be expected to have claims, either for services rendered or advances made, without the ad- justment of which it will be impossible to ascertain what may be due from or to the joint concern by each ; or what just claim any one or more of them may have against any one or more of the others. Until such an ascertain- ment shall have been made it will be impossible to pass a decree, which shall be founded upon the principles of justice, as to their several rights." And again: "The plaintiff in this case would seem to be without remedy, either at law or in equity. In Story on Equity Plead- ings, sections 82, 83, 152 and 218, it is clearly shown that a court of equity cannot take cognizance of a case in the predicament of the one here exhibited. Although the partners not present are insolvent, yet are they indis- pensable parties whose rights might be affected by a decree, and who must be present to be able to afford information as to their own claims in connection with 26 VOSE V. BRONSON those of the others, and if bankrupts, their assignees should be made parties." The condition of the alleged co-partners, Gray and Eaton, might have been similar to that of the plaintiff in this last case — ^without relief either at law or in equity — had there not been a provision in the legislation of the state for securing service by publication upon the non- resident infant. As they did not pursue the course pointed out by the statute, their present position with reference to the subsequent proceedings, and the decree rendered, is predsely what it would have been if no such statute had existed. ' The principle upon which the several cases cited pro- ceed is fundamental, and underlies the administration of justice in all courts of equity. (Note: Other parts of. above opinion are omitted.) 8. VOSE V. BEONSON 6 Wallace 452-456 Statement op Facts: The La Crosse & Milwaukee Railroad Company issued bonds to the amount of $4,000,- 000, and gave a mortgage which was foreclosed. The bonds having been sold at heavy discounts were scaled down, and no more being allowed to the bondholders than the company received for them a margin remained. Vose, who had sold material to the company and taken bonds at eighty cents on the dollar, with an understand- ing that if bonds should be sold at a lower rate he should have the benefit of the reduction, intervened by a bill in equity, claiming the benefit of that agreement and to have his demand satisfied out of the margin. The bill was dismissed. Justice Davis : The question presented by this record is of easy solution. If Vose had brought suit against PABTIES 27 the La Crosse & Milwaukee Railroad Company for a breach of their contract, the interpretation of it would have been a proper subject of inquiry, but the decision of this case does not depend on the disposition of that ques- tion. The appellant places his claim for relief on his right to have an outstanding equity with the La Crosse Company adjusted in the foreclosure suit, and his de- mand attached to the foot of the mortgage. To do this there must be a power somewhere to enlarge the mort- gage, and where is it lodged? Certainly not with the trustees, for their duty is to see that the security held by them for their cestui que trusts is enforced according to the terms of the deed. They could neither enlarge the mortgage nor consent to its enlargement. The court could not do it, nor the La Crosse Company, as it had covenanted with the trustees, in behalf of the bondhold- ers, that it would only issue $4,000,000 in bonds. The rights of the bondholders were fixed by the terms of the mortgage. The value of the bonds as an investment de- pended in a great measure on the number to be issued, and doubtless each purchaser, before he bought, had in- formation of the character of the security on which he re- lied. The property might be very well a safe security for $4,000,000, and very unsafe for any additional amount. The doctrine contended for would utterly de- stroy the marketable value of all corporate securities. No prudent man would ever buy a bond in the market, if the provisions made for its ultimate redemption could be altered without his consent. But it is said, as the court rendered a decree for less than the face of the bonds, equity will step in and allow the appellant to apply the vacuum of principal secured by the mortgage to liquidate his claim. The answer to this is, that it does not concern the appellant whether the court rightfully or otherwise reduced a portion of the bonds. The bondholders, whose bonds were thus re- duced, are the only parties in interest who could have 28 BRANDON MANUFACTURING COMPANY V. PRIME any just cause of complaint against the action of the court, and if they did not feel aggrieved no other per- son has any right to complain. The security of the mort- gage extended to four millions of bonds only, and what- ever amount the court should ascertain was due on those four millions was the amount secured, and no more. If Vose had been made a party defendant to the fore- closure suit, the decree would have been the same. But he was not a necessary party to that suit. The trustees, as the representatives of all the bondholders, acted for him as well as the others. It would be impracticable to make the bondholders parties in a suit to foreclose a railroad mortgage, and there is no rule in equity which requires it to be done. 9. BRANDON MANUFACTURING COMPANY V. PRIME 14 Blatchford 371-375 Wheeler, J.: This cause has been heard on the several demurrer of defendant Strong, and joint demur- rer of defendants Prime, Meacham and Luce to the cross- bill. The causes of demurrer assigned are the same in each. They are, in substance, that this court has not jurisdiction, because the court of chancery of the state had acquired prior jurisdiction on a bill brought by the orator in the cross-bill, there, for the same relief; that some of the reUef prayed is not cognizable in equity; that some of the subjects of the cross-bill are not the same as those of the original bill; and that Strong and another, made parties to the cross-bill, were not par- ties to the original bill. Both are demurrers to the whole bill. The orators in the original bill commenced the litiga- tion involved in this court, and compelled the orator in PARTIES 29 the cross-bill to come here and join in it. Having brought it here, they have no right to say that the whole or any part of it belongs anywhere else. If the cross-bill is ap- propriate to the original, it must relate to the subjects of it and embrace a part, at least, of the litigation introduced by it, so that by filing the cross-bill the orator in that has merely met those in the original where called upon by them to meet them. For this reason a plea of jurisdic- tion in another court is not a good plea to a cross-bill. 2 Dan. Ch. Pr. (4th Am. ed.) 636; Welford's Eq. PI., 229; Ld. Newburg v. Wren, 1 Vern 220. And for the same reason it is not necessary to show, in a proper cross-bill, that the rehef sought by it is cognizable in equity. Story's B'q. PI., see. 399. It has not been claimed in argument, and could not successfully be claimed, but that this cross-bill relates to the subject of the original in some respects, nor but that some of the relief prayed in the cross-bill is properly prayed. And it follows that some of it is proper to be answered, in some form, by some of the parties ; and that some of it may not be, is no good reason for not answer- ing what should be answered. As the demurrers are to the whole, and a part clearly should be answered, and the demurrers must be overruled or sustained as a whole, as to the causes relating to jurisdiction and relief, they must be overruled. So far as the defendants Prime, Meacham and Luce are concerned, it would be sufficient to say, as to the other causes of demurrer, that, because other parties are improperly called upon to answer the cross-bill in this form, it is no good reason why they, who are prop- erly called upon to answer it, should not do so. But if the others are properly called upon to answer it, a for- tiori, they are and should answer it. The question hereupon is merely whether the cross- bill should be answered at all or not by these other par- ties. That depends, of course, upon whether the subjects 30 BRANDON MANUPACTUEESrG COMPANY V. PRIME of it are so presented here by it that they are properly called upon to answer it in the form in which they are presented. The original bill sets forth, in substance, that the orators in that have a patent that the orator in the cross-bill is infringing, and prays appropriate re- lief. The cross-bill sets forth that the defendant Strong had the record title to the patent, and the orator the equitable title to it, and that the orators in the original bill acquired Strong's title with notice of the oustanding equity, and were endeavoring to assert it against the equitable title, and prays restraint and a conveyance. It is unquestionably the proper office of a cross-bill to afford relief in such a case if the case is made out. Story, Eq. PI., sec. 391; Calverly v. Williams, 1 Ves. Jr. 210. A cross-bill is like an original bill, except that it must rest on what is necessary to the defense of an original bill. In an original bill, brought by the orator in the cross-bill for the same relief, there could be no fair ques- tion but that these new parties, of whom Strong is one, would be proper parties. In this original bill, as it is framed, these do not appear to be necessary parties, but when the facts set up in the cross-bill appear they bec(>me so. Following the ordinary rule, when the orator in the oross-bill resorts to it for defense and relief, and makes it appear that they are not only proper but necessary parties to the litigation, that orator not only might, but ought, to make them parties. If there were no authori- ties and was no practice on the subject, on principle that would seem to be the proper course. That the practice in this state, which professes to follow the English chan- cery practice, the same that is followed in this court would warrant making him a party, is well known and appears in the state reports. Blodget v. Hobart, 18 Vt. 414. It does not appear expressly from such English reports or text-books as have been examined what the actual practice in such cases there has been. In this country, in Curd v. Lewis, 1 Dana 351, a decree was re- PARTIES 31 versed for the reason that an assignor of the subject of litigation in an original and cross-bill was not a party to either, and should have been made a party to the cross- bill, and that he might be made such a party. Wickliffe V. Clay, id. 585, was heard by consent only, without making a party, that by the cross-bill appeared neces- sary, a new party by the cross-bill. In Sharp v. Pike, 5 B. Mon. 155, a new party was added by cross-bill against his own express objection. In Walker v. Brungard, 13 S. & M. 723, new parties were added and new matters brought in by cross-bill and heard without objection. In disposing of the case, the chancellor, delivering the opinion of the court, said that, if they had been objected to, the new matters would all have been kept out, with- out saying that the new parties would have been. In Costers v. Bank of Georgia, 24 Ala. 37, it was expressly held that new parties should be added by cross-bill, when so interested in the litigation involved by it as to be proper parties to it. Opposed to all this, there is the remark of Mr. Jus- tice Curtis in Shields v. Barrow, 17 How. 130, and the reasons given by him in support of it, to the effect that new parties cannot in any case properly be added by cross-bill, without citing any authority for it, and books and cases that have followed that remark without citing any other authority. That precise question was not in- volved in that case, but the mere dictum of such a judge of such a court would ordinarily be followed, especially by lower courts. An examination of his reasoning shows that he made the suggestion without much examination, probably, and his reasoning does not cover the whole ground as to all classes of cases. The modes of pro- cedure he suggests would probably be ample in all cases of cross-bills brought for discovery in aid of a defense merely to the original bill, but not in cases of those brought for relief as well as defense, where new parties would be necessary to the relief sought. As in this 32 BRANDON MANUPACTUEING COMPANY V. PRIME case, the methods he states as the proper ones, if suc- cessfully followed, would enable the defendant in the original bill to defeat the orator therein, but not to reach the affirmative relief prayed in the cross-bill, if entitled to it. Weighty as that remark is, it is not thought to be sufficient to control the reasons and au- thority to the contrary of it. The result of what is thought to be the soundest reasoning and the best con- sidered authorities is that, where a cross-bill shows that there is a party to the subjects of the litigation as pre- sented by it, who has not before been made a party nor appeared to be a necessary one, and then does appear to be such, that party should be brought in by the cross- bill. The result is that this cross-bill should be answered by all those made defendants to it. The demurrers are overruled, and it is thereupon ordered that the defend- ants to the cross-bill answer over. Ill PARTIES, DIVERSE CITIZENSHIP 10. JACKSON V. ASHTON 8 Peters 148-149 Statement of Facts : In the caption of the bill in this case the complainants were described as citizens of Vir- ginia, and the defendant as a citizen of Pennsylvania. In the bill it was alleged that the complainants were citi- zens of Virginia, but the defendant was described as "William E. Ashton, of the city of Philadelphia." Makshaul, C. J. : The title or caption of the bill is no part of the bill, and does not remove the objection to the defects in the pleadings. The bill and proceedings should state the citizenship of the parties, to give the court jurisdiction of the case. The only difficulty which could arise to the dismissal of the biil presents itself upon the statement "that the de- fendant is of Philadelphia. ' ' This, it might be answered, shows that he is a citizen of Pennsylvania. If this were a new question, the court might decide otherwise; but the decision of the court, in cases which have hereto- fore been before it, has been express upon the point ; and the bill must be dismissed for want of jurisdiction. 11. TUENEE V. BANK 4 Ball. 8 Chiep Justice Ellsworth: The action below was brought by the president and directors of the Bank of North America, who are well described to be citizens of 33 B. P. C— 3 34 TURNER V. BANK Pennsylvania, against Turner and others, who are well described to be citizens of North Carolina, upon a prom- issory note, made by the defendant, payable to Biddle S Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are not otherwise described, than as "using trade and merchandise in partnership together," at Philadelphia or North Carolina. And judg- ment was for the plaintiff. The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co., the promisees, or any of them, are citizens of a state other than that of North Carolina, or aliens. A circuit court, though an inferior court, in the lan- guage of the constitution, is not so in the language of the common law; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution, or jealousy, of the courts at Westminster, long applied to courts of that denomination; but are entitled to as lib- eral intendments, or presumptions, in favour of their regularity, as those of any supreme court. A circuit court, however, is of limited jurisdiction; and has cog- nizance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the eases, which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction till the contrary appears. This renders it necessary (inasmuch as the proceedings of no court can be deemed valid further than its jurisdiction appears, or can be presumed), to set forth upon the record of a circuit court, the facts or circumstances, which give jurisdiction, either expressly, or in such manner as to render them certain by legal in- tendment. Among those circumstances, it is necessary, where the defendant appears to be a citizen of one state, to show that the plaintiff is a citizen of some other. state, f>ABtIES, DIVERSE CITIZENSHIP 35 or an alien; or if (as in the present case) the suit be upon a promissory note, by an assignee, to show, that the original promissee is so: for, by a special provision of the statute, it is his description, as well as that of the assignee, which effectuates jurisdiction. But here the description given of the promissee only is, "he used trade" at Philadelphia or North Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a state, other than that of North Carolina, or an alien; nor any thing which, by legal intendment, can amount to such averment. We must, therefore, say that there is error. It is exceedingly to be regretted, that exceptions which might be taken in abatement and often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits. Judgment reversed. 12. PEAY V. SCHENCK 1 Woolworth 175-191 Opinion by Milleb, J. : Statement of facts : This is a bill in chancery brought by the complainant to quiet his title to certain real estate, as against Peay, and for partition thereof, as against BUss. The title which he asks to have quieted and confirmed is derived from a sale for taxes levied upon the real estate mentioned in the bill, under the act of congress of 1861, and the amenda- tory act of 1862, passed to enforce the collection of the tax in the insurrectionary districts. The defendant Peay files his answer and cross-bill when the proceedings under which the plaintiff claims were had, in which he states that he was, and still is, the true owner of the lots in controversy; that for several reasons detailed in the answer and cross-bill, the pro- ceedings were void and conferred no title on Bliss, the 36 PfiA"? V. SCSSlNCK purchaser at the tax sale ; and that the plaintiff, who pur- chased from Bliss, is therefore without title. He makes Bliss, as well as the plaintiff, a defendant to this cross-bill, and prays that the tax sale may be declared void, and his title quieted, and the possession of the property, which had been delivered to Bliss by the tax commissioner, restored to him. He also prays for the appointment of a receiver pending the litigation, and for other relief. The plaintiff and Bliss filed a demurrer to this cross-bill, based on the proposition that the bill cannot be entertained in this court, because Peay and Bliss are both citizens of the state of Arkansas. If this were an original bill brought by the plain- tiff therein, as an independent measure of relief, it could not be sustained. Bliss was the sole purchaser, at the tax sale, of the property in dispute, and the certificates of sale are in his name, and Schenck, who alleges a right in himself to only an undivided fourth part, derived his claim by purchase from Bliss. It is clear, therefore, that as between Peay as plaintiff, and Bliss as defendant, both being citizens of Arkansas, no original and independ- ent suit of this character can be maintained in the fed- eral courts. On the other hand, it is insisted that Schenck, who is a citizen of Ohio, and the plaintiff in the original bill, asks, as against Bliss, merely a partition of the prem- ises, and that Peay has no interest in this branch of the case ; that the principal relief sought by him is a decree quieting his title as against Peay ; and that in this branch of the case. Bliss' interests consist with the plaintiff's, and that it thence appears that the interests of Schenck and Bliss are equally adverse to Peay's. It is also said that the matter of the cross-bill is strictly defensive, and necessary to be presented in order to bring before the court fully the defenses of the plaintiff therein to the original bill. If this be true, the demurrer must be overruled, for PARTIES, DIViaiSE CITIZENSHIP 37 it is the estabKshed doctrine of this court, that where a party defendant finds it necessary for his defense, and to prevent an injustice resulting to him from the position in which the case stands, he is at liberty to file a cross- bill, if the case is pending in chancery, or an original bill, if the case is one at law, although the parties de- fendant to said bill, or some of them, may be citizens of the same state with himself. The only limitations to this principle are, that the bill must be necessary to the de- fense of the party fihng the bill, and it must be filed against parties already before the court, and subject to its jurisdiction, either as plaintiffs or defendants in the original suit. Dunn v. Clarke, 8 Pet. 1 ; Clarke v. Math- ewson, 12 Pet. 164; Cross v. De Valle, 1 Wall. 1. And in determining whether a bill is original and inde- pendent, or is ancillary and auxiliary to a matter already before the court, we are not confined to the line which, in chancery pleadings, divides original bills from cross- bills and supplemental bills, but may look to the essence • of the matter, and to principles which, as regards parties, the federal courts have adopted in reference to their jurisdiction. Minnesota Co. v. St. Paul Co., 2 Wall. 632 ; Freeman v. Howe, 24 How. 450. The main question raised by the original bill is the validity of the title conferred by the tax sale, and the relief sought is to have that title quieted and confirmed. The cross-bill refers only to matters connected with the validity of the same tax title, and prays, as its sole re- lief, to have it set aside and declared void. In refer- ence to the partition, the cross-bill is silent, and the re- lief asked concerning a receiver is purely incidental to the progress of the suit, and could be had without the aid of the cross-bill on mere petition. It seems to us, therefore, that the cross-bill is essentially a mode of de- fense appropriate to the case; that it is necessary to a complete determination of the controversy brought be- fore the court by the original bill ; that it is ancillary to 38 MTEBS V. DOHR the main cause ; and that, as it brings no new parties be- fore the court, it is not liable to the objection taken by the demurrer. The demurrer is therefore overruled. (Note : Portion of above case, not bearing on equity pleading and practice, is omitted.) 13. MYERS V. DORE 13 Blatchford 22-31 Statement op Facts : Myers filed a bill in the TJ. S. circuit court for Vermont, against Dorr for a dissolution of a partnership and for an account. He was a citizen of Ohio and the defendant resided in Vermont. He after- wards filed an amended and supplemental bill, seeking to make the Sutherland Falls Marble Company a defendant, and requiring that company to fulfill a contract it had made to furnish marble to the firm, and charging that, colluding with Dorr, it had refused to do so since the appointment of a receiver in the case. The marble company appeared specially and pleaded to the jurisdic- tion that it was a Massachusets corporation, and was not chartered by nor found in Vermont. There was a replication to this plea. The cause was heard as to the marble company. WooDEXJFF, J.: The single question presented by the pleadings in this suit as now brought before us, is whether the facts alleged by the Sutherland Falls Mar- ble Company in their plea are proved. The complain- ant has thought proper, by replying to the plea, to put its averments in issue. The rule is elementary and is well settled, that, when a complainant in equity, instead of setting down the de- fendant's plea for argument to test its sufficiency, elects to reply thereto, denying the facts alleged, he admits its sufficiency both in form and substance as a defense to all the matter of the bill to which it is pleaded, and that PARTIES, DIVERSE CITIZENSHIP 39 if the facts shall, upon the proofs taken, be found estab- lished, the bill must be dismissed (Story's Eq. PI., sec- tion 697 ; GraUagher v. Roberts, 1 Wash. 320 ; Hughes v. Blake, 6 Wheat. 453 ; Rhode Island v. Massachusetts, 14 Pet. 210, 257) ; and this must be done without reference to any equity arising from other facts stated in the bill. There is no occasion to discuss the evidence. The proofs taken to sustain the allegations of the plea are uncontra- dicted by any evidence produced on the part of the com- plainant. Indeed, we do not understand the counsel for the complainant to claim that those facts are not estab- lished. The plea is to the jurisdiction of the court over the defendant corporation. By replying, the complain- ant admits the sufficiency of the facts alleged to support the plea. The allegations of the plea are proved, that is to say, it is proved that the corporation was not organized for the sole purpose of quarrying marble in Vermont, and has property without that state; and that it has never had or adopted, or acted under, any charter granted by the legislature of that state, and is not a citizen of that state, but, on the contrary, is a corpora- tion organized and established within and by the laws of the state of Massachusetts only. It is quite too late to insist that the residence or citi- zenship of a director or stockholder of a corporation in another state than that by which it was created changes or affects its citizenship. Whatever was formerly held on that subject to the contrary, it is now well settled that a corporation can have no citizenship or inhabitancy out of the state wherein it waS created ; and this has become too familiar to require that we should refer to the numer- ous modern cases to that effect. We might, therefore, with great propriety, stop here, and say the defendant has established the plea, and is, therefore, entitled to a decree dismissing the bill. The discussion, upon the hearing, had a much broader range. The counsel for the complainant treated the hearing as if it were upon a de- 40 MTEKS V. DOBB murrer to the plea, insisting that the facts alleged therein and proved did not show a want of jurisdiction, and that, in considering that question, the court should regard every fact alleged in the bill, which the plea does not deny, as true. What we have above said is in direct denial that the complainant is at liberty to raise any question touching the sufficiency of the plea. But if we should pursue the subject, and consider the views urged upon us, the result to the complainant must be the same. The defendant is a corporation created by or under the laws of the state of Massachusetts, and has no other residence or inhabitancy. The judiciary act of 1789, sec- tion 11 (1 U. S. Stat, at Large 78), is express, that no civil suit shall be brought before a circuit or district court, against an inhabitant of the United States, by any original process, in any other district than that whereof, he is an inhabitant, or in which he shall be found at the time of serving the writ. In respect to the question of jurisdiction, a corporation is to be treated pro hac vice as a natural person. Clarke v. N. J. Steam Nav. Co., 1 Story 531; Day v. Newark Ind. E. Co., 1 Blatch. 628. Such corporation cannot be found out of the state wherein it is created, within the meaning of the statute, and be served by or through its officers. Pomeroy v. The N. Y. & N. H. E. Co., 4 Blatch. 120. To the general rule de- clared by the statute, see Toland v. Sprague, 12 Pet. 300; Picquet v. Swan, 5 Mason 35; Eichmond v. Drey- fous, 1 Sumn. 131, and the other cases cited above; and the case of Minnesota Co. v. St. Paul Co., 2 Wall. 609, relied upon by the complainant as creating an exception, affirms the general rule. And yet here the Sutherland Falls Marble Company is sued and required to answer in the district of Vermont. The circuit court of that dis- trict has no jurisdiction to compel that corporation to appear and answer, and the repeated decisions of the supreme court, that no decree can be pronounced which shall affect the rights of a party who is out of the juris- PABTIES, DIVEESE CITIZENSHIP 41 diction, show that no decree can be pronounced against this defendant. Story v. Livingston, 13 Pet. 359 ; Coiron V. Millaudon, 19 How. 113; Shields v. Barrow, 17 How. 130; Northern Ind. R. Co. v. Mich. Cent. R. Co., 15 id. 233 ; Barney v. Baltimore City, 6 Wall. 280. In order to sustain the jurisdiction, the counsel for the complainant insists that the Sutherland Falls Marble Company have, since this suit commenced, purchased the interest of the defendant Dorr in the contract with them ; and this is claimed to be a submission to the jurisdic- tion, and to make them substantially parties to the suit. In the first place, the fact alleged is not proved, and we are constrained so to find, upon the evidence. In the next place, if proved, it could not affect the question. A pur- chaser pendente lite may be said to submit to the juris- diction, but in this sense only — he purchases subject to the litigation; but the litigation may proceed without noticing his purchase, and he does not, by such purchase, become a necessary party. If the court have not jurisdic- tion of him, he cannot be compelled to come in as a party. And, once more, it is claimed to be essential to the rights of the complainant, and to the protection of the business now in the hands of the receiver, and its successful prosecution, that the complainant should have the relief against the Marble Company sought by the sup- plemental bill. A short answer might be given to this. The complainant or the receiver must seek that rehef in a court having jurisdiction of the party against whom it is sought. The circumstance that such relief would be beneficial to the parties, and prevent incidental loss to them, pending the prosecution of the original bill, will not warrant or create any exteneion of the power of the court. We forbear to remark upon the extraordinary charac- ter of the whole case now before us, in which a complain- ant who has commenced a suit to dissolve a copartner- ship and adjust its affairs with his partner, seeks, by 42 MTEBS V. DORB what he calls a supplemental bill, to compel a third party, who has no interest in the copartnership, specifically to perform an agreement made with the firm; and that is just what is sought against this defendant. As to him the bill is, in every just sense, an original bill. If the complainant can maintain such a suit upon the contract in question, he must prosecute it where the court has jurisdiction, and the attempt to unite it with a contro- versy with his partner touching their copartnership af- fairs cannot avail anything. And so, also, the receiver of the copartnership property, if, in virtue of his receiver- ship, he can sue on the contract, or if he can maintain a suit for its specific performance, must prosecute it else- where. Arguing that it is important that this court should have jurisdiction of this defendant, in order to do full justice and protect all parties, will not avail to con- fer jurisdiction where the limitation imposed by statute and settled by adjudication forbids its exercise. We have referred to the nature of the suit for the purpose of adding that the case of Minnesota Co. v. St. Paul Co., 2 Wallace 609, touches no question here dis- cussed. There a suit was rightly brought and was de- cided, the court having jurisdiction of the parties, a de- cree was made, it was found that certain orders made in execution of the decree were invalid by reason of a change in the jurisdiction of the court, and that further adjudication was necessary in order to the execution of the decree and the disposal of the property in the hands of the receiver, and it was held that a bill supplemental in its nature, filed in order to carry the prior decree into execution and administer the property, was to be re- garded, not as an original suit, but as a continuation of the former suit, and that, as no other court could ex- ecute that decree and make due administration of the property, the power of the court to act was not impaired by the fact that persons who had acquired interests in the property or questions were citizens of the same state PARlTES, DIVERSE ClTIZteNSHlP 43 as complainant in such last-named bill ; and the court re- ferred to cases in which a person acquiring rights as pui"chaser under a decree is regarded as a party having a right to proceed in continuation of the suit, so far as to protect his rights, irrespective of any question touch- ing his citizenship. In a recent case (Jones v. Andrews, 10 Wallace 327), the supreme court have gone so far as to hold, that, where a judgment has been recovered in a suit in the circuit court, and the judgment creditor is proceeding in that court, by the process of garnishment, against an alleged debtor of the defendant in the judg- ment, such debtor may file a bill supplemental or ancil- lary to his defense, to protect himself against a compul- sory proceeding duly instituted to compel him to pay, showing by such bill a just and equitable defense; and the necessity of making the creditor not residing in the district a party will not defeat such ancillary suit. And "in Freeman v. Howe, 24 How. 450, where a suit had been duly commenced in the federal court by attachment of property, and while the same was in the possession of the marshal, it was taken from him by process of replevin issued by the state court at the suit of a third party, the court not only held that such interference with the custody of the marshal was illegal, but declared that a bill of equity might, in such case, be filed by the plaintiff in the federal court, against the plaintiff in the replevin suit, notwithstanding both were citizens of the same state. These cases proceed upon the ground, that, where the federal court is proceeding in the due exercise of its jurisdiction, it has power to regulate and control its own judgments, and carry them into execution, and power to maintain its own jurisdiction, and protect either plaintiff or defendant therein, in respect of the subject-matter thus lawfully within its jurisdiction, and, by an ancillary suit, to call in parties for those purposes, whether their citizenship would have authorized an original suit against them by the plaintiff in such ancil- 44 JONES V. ANDREWS lary proceeding or not. The present is no such case. Here the original suit was for the dissolution of a co-partner- ship, and the adjustment of the rights of the complainant and Dorr. In that the Marble Company had no in- terest, and they have done nothing to prevent that suit from proceeding to its termination according to its in- tent and purpose. The cause of action against the Mar- ble Company is its refusal to perform a contract made with the firm, and the decree sought is the specific per- formance of that contract. To grant the relief might be useful to the parties to the original bill, but it has no legal connection with the cause of action therein, and is in no sense necessary to the full exercise of the juris- diction of the court. It is not in any sense a continua- tion of the original suit, but an attempt to add a new cause against a new party. This bill must be dismissed as to defendants, the Sutherland Falls Marble Company, with costs. 14. JONES V. ANDEEWS 10 Wallace 327-334. 1870 Appeal from U. S. Circuit Court, Western District of Tennessee. Statement op Facts: Andrews leased a hotel in Memphis to Eeed & Bryson, taking their notes for the rent. These sublet to Jones, taking his notes for the rent. The rent not being paid, Andrews, in the absence of Jones, took possession of the hotel, and recovered judgment in the court below against Reed & Bryson on their notes, and garnished the notes of Jones. Jones then filed a bill in the same court for an injunction, de- scribing the citizenship of the parties in the caption and in the prayer, averring Andrews to be a citizen of New PARTIES, DIVERSE CITIZENSHIP 45 York and Reed & Bryson to be residents of Tennessee. Andrews was not served with process, but came in and moved that the bill be dismissed for want of jurisdiction and for want of equity. Opinion by Me. Justice Bradley : On the question of jurisdiction over the parties, the appellees contend : 1st. That the citizenship of the parties was not sufficiently alleged in the bill. 2d. That, if sufficiently alleged, the court had no jurisdiction over Andrews, the prin- cipal defendant, who was a citizen of New York, and not a citizen of Tennessee, where the suit was brought. Although the allegation of citizenship is not made in precise and technical form, we consider it sufficiently ex- plicit to sustain the jurisdiction of the court, if the citi- zenship disclosed by the allegation does not displace that jurisdiction. It is more explicit than the allegation in the case of Express Company v. Kountze, 8 Wall. 342, which was sustained by the court. All that is necessary is, that it fairly appear by the bill of what states the re- spective parties are citizens. In this case the form of the allegations leaves no room for reasonable doubt. The other exception, that Andrews, the principal de- fendant, was not a citizen of the state where the suit was brought is entitled to more weight. Though the consti- tution declares that the judicial power of the federal gov- ernment shall extend to controversies between citizens of different states, which would embrace the case be- fore us (the plaintiff being a citizen of Georgia, and Andrews a citizen of New York), yet congress has not estabhshed any court, except the circuit court, to take cognizance of such cases; and, by the judiciary act of 1789, which establishes that court, congress only invested it with jurisdiction of eases where the suit is between a citizen of the state where the suit is brought, and a citi- zen of another state (section 11), and moreover declared that no civil suit should be brought before said court against an inhabitant of the United States, by any origi- 46 JONES V. ANDREWS nal process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ. The case is certainly not within the purview of this statute. The suit is brought in west Tennessee, and neither Jones, the complainant, nor An- drews, the defendant, is a citizen of that state. Besides, the suit is brought against Andrews in a district of which he is not an inhabitant, and in which he was not found at the time of serving the writ. Under the act of 1789, and the ruling of the early cases, the court would, prima facie, be without jurisdiction. According to those cases the plaintiff, or each of the plaintiff's if more than one, must be able to sue each of the defendants, if more than one. But the act of February 28, 1839, by implication, confers jurisdiction over non-residents of the district where the suit is brought, if they voluntarily appear therein. The suit can proceed against them if they vol- untarily appear, or without them if they are not neces- sary parties. If, however, they are necessary parties, and do not voluntarily appear, the difi&culty remains the same as before the act of 1839 was passed. Tobin v. WaMnshaw, 1 McAl. 26. In this case Andrews was a necessary party, and he was not a resident of the dis- trict, and was not served with process, but he did volun- tarily appear. It is true that as soon as he appeared, he moved a dismissal of the bill on two grounds : (1) That it did not show such facts in regard to the citizenship or residence of the defendants as to give the court jurisdic- tion. (2) That it contained no equity. Whether, if he had made the motion on the first ground alone, he would have waived his personal exemption, it is not necessary to decide. His moving to dismiss for want of equity was clearly a waiver; and he was properly required to answer the bill. After this the question of jurisdiction over the person was at an end, and the decree of the cir- PASTIES, DIVERSE CITIZENSHIP 47 otiit court, dismissing the bill for want of jurisdiction, must be reversed. But the case is stronger than this. The jurisdiction of the court did not depend on the residence or citizenship of the parties. The suit is, in its nature, not an original but a defensive or supplementary suit, like a cross-bill, or a bill filed to enjoin a judgment of the same court. The bill is filed for an injunction against the garnish- ment proceedings under the suit at law for the delivery up of the complainant's notes, and for the establishment of his set-off against Andrews. This is in substance, its character, and if the facts charged furnish a sufficient ground of equity for the relief asked, as to which the court refrains from expressing any opinion, the com- plainant had a right to file it against the defendants, and the court had a right to take cognizance of it as a defen- sive or supplementary proceeding, growing out of and having direct reference to the proceedings of the de- fendants in the same court against him. The case, in this respect, as before said, is analogous to that of a cross-bill or bill of review, or a bill for injunction against a judgment at law in the same court, of which the court has jurisdiction irrespective of the residence of the par- ties. Logan V. Patrick, 5 Cranch 288 ; Simms v. Guthrie, 9 id. 25; Clarke v. Mathewson, 12 Pet. 164; Dunlap v. Stetson, 4 Mason 349. As to bills for injunction against judgments at law rendered in the same court. Justice Story, in Dunlap v. Stetson, says: "I believe the gen- eral, if not universal practice has been to consider bills of injunction upon judgments in the circuit courts of the United States, not as original, but as auxiliary and de- pendent suits, and properly sustainable in that court which gave the original judgment, and has it completely under its control. The court itself possesses a power over its own judgments by staying execution thereon; and it would be very inconvenient if it did not possess 48 PAYNE V. HOOK the means of rendering such further redress as equity and good conscience required." Let the decree of the circuit court be reversed, and the cause remitted for further proceedings, each party to pay his own costs on this appeal. 15. PAYNE V. HOOK 7 Wallace 425-433 Appeal from U. S. Circuit Court, District of Missouri. Statement or Facts: Ann Payne, a citizen of Vir- ginia, filed a bill in the circuit court of the United States for Missouri, against Zadoc Hook, public administrator of Calloway county, and his sureties on his bond, citi- zens of Missouri, to obtain her distributive share of the estate of her brother, who died intestate, which was com- mitted to Hook's care by the county court of Calloway county. The bill simply set forth the names of the dis- tributees, and charged the administrator with gross misconduct in managing the estate, and sought to ob- tain relief and compel a true account of the administra- tion and to be paid what was due her. Hook had not made his final settlement. Defendant demurred, and the court below sustained the demurrer. Justice Davis: The jurisdiction of the circuit court for Missouri to hear this cause is denied, because, in that state, exclusive jurisdiction over all disputes concerning the duties or accounts of administrators until final set- tlement is given to the local county court, which is the court of probate; and as the administration complained of is still in progress in the county court of Calloway county, resort must be had to that court to correct the errors and frauds in the accounts of the administrator. The theory of the position is this : that a federal court of PARTIES, DIVERSE CITIZENSHIP 49 chancery, sitting in Missouri, will not enforce demands against an administrator or executor, if the court of the state, having general chancery powers, could not en- force similar demands. In other words, as the com- plainant, were she a citizen of Missouri, could obtain a redress of her grievances only through the local court of probate, she has no better or different rights because she happens to be a citizen of Virginia. If this position could be maintained, an important part of the jurisdiction conferred on the federal courts by the constitution and laws of congress would be abrogated. As the citizen of one state has the constitutional right to sue a citizen of another state in the courts of the United States, instead of resorting to a state tribunal, of what value would that right be, if the court in which the suit is instituted could not proceed to judgment a,nd afford a suitable measure of redress? The right would be worth nothing to the party entitled to its enjoyment, as it could not produce any beneficial results. But this objection to the jurisdiction of the federal tribunals has been heretofore presented to this court and overruled. We have repeatedly held "that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. ' ' Hyde v. Stone, 20 How. 175 ; Suydam V. Broadnax, 14 Pet. 67 ; Union Bank v. Jolly, 18 How. 503. If legal remedies are sometimes modified to suit the changes in the laws of the states and the practice of their courts, it is not so with equitable. The equity jurisdiction conferred on the federal courts is the same that the high court of chancery in England possesses ; is s;abject neither to limitation or restraint by state legis- lation, and is uniform throughout the different states of the Union. Green v. Creighton, 23 How, 90; Robinson B. p. c— 4 50 PATNE V. HOOK V. Campbell, 3 Wheat. 212; United States v. Howland, 4 Wheat. 108; Pratt v. Northam, 5 Mason 95. The circuit court of the United States for the district of Missouri, therefore, had jurisdiction to hear and de- termine this controversy, notwithstanding the peculiar structure of the Missouri probate system, and was bound to exercise it, if the bill, according to the received prin- ciples of equity, states a case for equitable relief. The absence of a complete and adequate remedy at law is the only test of equity jurisdiction, and the application of this principle to a particular case must depend on the character of the case, as disclosed in the pleadings. Watson V. Sutherland, 5 Wall. 78. "It is not enough that there is a remedy at law. It must be plain and adequate ; or, in other words, as prac- tical and efficient to the ends of justice and its prompt administration as the remedy in equity." Boyce v. Grundy, 3 Pet. 210. It is very evident that an action at common law, on the bond of the administrator, would not give to the com- plainant a practical and efficient remedy for the wrongs which, she says, she has suffered. A proceeding at law is not flexible enough to reach the fraudulent conduct of the administrator, which is the groundwork of this bill, nor to furnish proper relief against it. It is, however, well settled that a court of chancery, as an incident to its power to enforce trusts, and make those holding a fidu- ciary relation account, has jurisdiction to compel ex- ecutors and administrators to account and distribute the assets in their hands. The bill under review has this object, and nothing more. It seeks to compel the de- fendant, Hook, to account and pay over to Mrs. Payne her rightful share in the estate of her brother; and in case he should not do it, to fix the liability of the sureties on his bond. (Note: Part of opinion not in point, omitted.) PliBTEES, DIVERSE CITIZENSHIP 51 16. MORGAN V. MORGAN 2 Wheaton 290-302 Marshall, C. J. : In this case two questions respect- ing the formal proceedings of the circuit court have been made by the counsel for the appellant. The first is, that one of the complainants in the original suit having set- tled in the state of Kentucky after this bill was filed, that court could no longer entertain jurisdiction of the cause and ought to haVe dismissed the bill. We are all of opinion that the jurisdiction having once vested was not divested by the change of residence of either of the parties. ' 2d. It appearing from the will that at its date the testator had a child who is not a party in this suit, the bill ought to be dismissed, or the decree opened and the cause sent back to make proper parties. It is unques- tionable that all the co-heirs of the deceased ought to be parties to this suit, either plaintiff or defendant; and a specific performance ought not to be decreed until they shall be all before the court. It would, perhaps, be not enough to say that the child named in the will and not made a party is most probably dead. In such a case as this, the fact of his death ought to be proved, not pre- sumed. But as the opinion of the court on the merits of the cause will render it unnecessary to decide this ques- tion, it is thought best for the interest of all parties to proceed to the consideration of another point which will finally terminate the contest, so far as it is to be deter- mined in a court of equity. (Note: Portion of above case, not bearing on equity pleading and practice, is omitted.) IV INFANT PARTIES 17. JOHNSON V. WATERHOUSE 152 Mass. 585 C. Allen, J.: The general rule is well established, that a judgment cannot properly be rendered against an infant defendant in a civil suit, unless he has a guardian who may defend the suit in his behalf ; and if a judgment is so rendered, the infant is entitled to maintain a writ of error to avoid the same. Crockett v. Drew, 5 Gray 399 ; Swan V. Horton, 14 Gray 179; Farris v. Richardson, 6 Allen 118; Mansur v. Pratt, 101 Mass. 60; Gassier 's case, 139 Mass. 458. In the present case, the plea avers that the plaintiff in error was an infant at the time of the rendering of the judgment, and had no probate guardian or legally ap- pointed guardian ad litem, but was in fact represented and defended in the action by his father and mother, who were present in court at the trial, and were repre- sented by counsel, and defended the action on his be- half. The defendant in error contends that these facts will supply the want of a guardian regularly and form- ally appointed, and that under these circumstances the infant is not entitled to maintain his writ of error. Such appears to be the rule adopted in Vermont. Priest V. Hamilton, 2 Tyler 50; Wrisley v. Kenyon, 28 Vt. 5 ; Fuller v. Smith, 49 Vt. 253. The case cited from Mississippi does not appear to us to go so far, as there a husband was authorized by statute to appear for his infant wife, so that no guardian ad litem for her was deemed necessary. Frisby v. Harrison, 30 Miss. 452. 52 INFANT PARTIES 53 No other decision has been cited by counsel which goes so far as the Vermont cases, and after some examination we have found none. The practice of having a regularly appointed guardian rests on good reasons. It has been said that the duty of watching over the interests of in- fants in a litigation devolves in a considerable degree upon the court. Bank of United States v. Ritchie, 8 Pet. 128, 144. This duty is performed in the first instance by seeing that an infant is represented by a guardian who is suitable to protect his interests in the particular case. The father is usually a proper person to act as such guardian, but not always. There is an obvious advan- tage in having the fitness of the person who is to act as guardian determined in the first instance, rather than after the trial is over. It was held in Brown v. Severson, 12 Heisk. 381, that where an infant's mother, who was named as his guardian in his father's will, had appeared in a suit as his guardian, and answered as such, and had been recognized by the court as guardian, the judgment should not be set aside, thoiugh no formal appointment as guardian appeared of record. In the case now before us, the infant's parents did not file an answer as his guardians, nor assume to act formally as such, and there is nothing to show that the court recognized them as his actual guardians, or acted upon the assumption that they were such. They were simply his parents. It is laid down in Macpherson on Infants, 353, that no legal right, of parentage or of guardianship will enable any one to act for the infant without an appointment as guardian. If there is no guardian of an infant defendant, the plain- tiff must bring the matter to the attention of the court, and see to it that one is appointed. Swan v. Horton, 14 Gray 179 ; Shipman v. Stevens, 2 Wils. 50 ; Clarke v. Gil- manton, 12 N. H. 515; Mason v. Denison, 15 Wend. 64, 67. In Letcher v. Letcher, 2 Marshall 153, the mother of infant defendants, who was also herself a defendant, an- swered for them as their guardian; but she did not ap- 54 JOHNSON V. WATEBHOUSE pear to have been appointed to defend for them, and the judgment against them was reversed. See also Irons v. Crist, 3 Marshall 143; Searcey v. Morgan, 4 Bibb 96; Pond V. Doneghy, 18 B. Mon. (Ky.) 558. In Swain v. Fidelity Ins. Co., 54 Penn. St. 455, an attorney appeared for an infant at the instance of his mother ; but this was held to be insufficient. In Cohnan v. Northcote, 2 Hare 147, Vice Chancellor Wigram refused to receive the an- swer in equity of a married woman, who was an infant, either separately or jointly with her husband, until a guardian should have been assigned to her. The fact that there are adult defendants joined with an infant defendant, and that all appear by the same attorney, will not avail to prevent the infant from obtaining a reversal of the judgment. Goodridge v. Boss, 6 Met. 487 ; Castle- dine V. Mundy, 4 B. & Ad. 90 ; 2 Saund. 212a, note 4. The father of an infant soldier is not entitled to his bounty money, nor to money paid for his enlisting as a substitute in the army. Banks v. Conant, 14 Allen 497; Kelly v. Sprout, 97 Mass. 169; Taylor v. Mechanics' Savings Bank, 97 Mass. 345. Nor has a father as such a right to demand and receive a legacy to his infant child. Miles V. Boyden, 3 Pick. 213, 218; Genet v. Talknadge, 1 Johns. Ch. 3. When an infant sues by prochain ami, in theory of law the prochain ami is appointed by the court, and his authority to act may be revoked by the court. Guild v. Cranston, 8 Cush. 506. It seems to us that it is more in accordance with the general current of decisions, and with sound principles, to hold that the facts stated are insufficient to show that the plaintiff in error is bound by the judgment rendered against him. Certainly he ought not to be bound by the appearance of his father and mother for him, unless in point of fact they were suitable persons to represent him in the particular case, and to defend his interests ; and the proper time for making the inquiry whether they were so is past. The original answer disclosed the tNTANT PARTIES 55 fact of infancy, and the original plaintiff, the present defendant in error, might have had a guardian ad litem appointed by making an application to the court. According to the practice under the statutes of this Commonwealth, even where a judgment is found to have been erroneous by reason of an error in fact, the entry must be judgment reversed. Pub. Sts., ch. 187, sec. 2; Packard v. Matthews, 9 Gray 311. 18. O'HAEA ET AL. v. MACCONNELL ET AL., Assignees 93 U. S. 150 Mb. Justice Millee delivered the opinion of the court. Michael O'Hara was adjudged a bankrupt December 9, 1867, and the appellee duly appointed assignees, to whom an assignment of his effects was made in due form. As such assignees they filed in the circuit court for the Western District of Pennsylva,nia the bill in chancery on which the decree was rendered from which the pres- ent appeal is taken. The bill alleges that a conveyance of certain real estate made by said O'Hara and his wife Frances, on the tenth day of July, 1866, to William Harri- son and G. L. B. Fetterman, in trust for the use of the wife, was a fraud upon creditors, and prays that the deed be declared void, and that O'Hara, his wife, and Barr, her guardian, be decreed to convey the land to complain- ants, that they may sell it for the benefit of O'Hara 's creditors, free from the embarrassment created by said deed of trust. The bill also alleges that Mrs. O'Hara is a minor, and that A. M. Barr is her legal guardian. A subpoena was issued on the fifth day of April, 1869, and served on the seventh on O'Hara, for himself and wife, and on Barr; and on the seventh day of May fol- lowing, without appearance and without answer by any 56 o'haea et al. v. macconnell et al., assignees defendant, the bill was amended, was taken as confessed, and a final decree rendered. This decree enjoined the defendants from setting up any claim to the land, and ordered all of them to convey and release the same to assignees; and in default of such conveyance within thirty days, Henry Sproul was appointed commissioner to do it in their name. A copy of this decree was served on the defendants May 10th; on the 14th of June the or- der was complied with by a deed made by O'Hara, his wife and Barr, which on its face purports to be in exe- cution of the order, and for the consideration of one dollar. It will thus be seen that within less than five weeks from the filing of the bill, and without any actual service of the writ or other notice on her, a decree was entered against a woman who was both a minor and a feme covert, without the appointment of a guardian ad litem, without any appearance by her or for her, depriv- ing her of fourteen acres of land now within the limits of the city of Pittsburg. It is from this decree that she appeals. By the thirteenth rule of practice of the courts of equity of the United States, as it stood when the sub- poena in this case was served, a delivery of a copy to the husband was good, where husband and wife were sued together ; but the rule was amended in this court in 1874, so as to require a personal service on each de- fendant, or by leaving a copy for each at his or her usual place of abode, with some adult member of the family. The service in the present case would not now be good, though it must be held to have been so at the time it was made. It would be very strange if a decree obtained under such circumstances could stand the test of a critical ex- amination. We are of the opinion that there are several errors sufficient to justify its reversal. 1. It was the duty of the court, where the bill on its face showed that the party whose interest was the prin- INFANT PARTIES 57 cipal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her in any manner to protect her interests, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to defend her interest, it was the more impera- tive that the court should have appointed some one to do it. There is no evidence in the record except the state- ment in the bill that Dr. Barr was her guardian. If he was not, then there was no one served with notice whose legal duty it was to defend her. If he was her guardian there is no evidence of the precise nature of his duties or power, as there are several classes of guardians. As to the particular property now in contest, she had a trustee, in whom the title was vested for her use, and whose duty it would have been to protect her interest in it; but, strangely enough, he was not made a party. It was therefore error in the court to proceed to a decree without appointing a guardian ad litem. 1 Daniel's Ch. Pr. 160, c. 4, sec 9; Coughlin's Heirs v. Brent, 1 Mc- Lean 175 ; Lessee of Nelson v. Moore, 3 id. 321. The legal title to- the property in question was held by Fetterman, in trust for Mrs. 'Hara. The trust was not a naked or dry trust; for he was empowered with her consent to sell it, and reinvest the proceeds on the same trusts, or to mortgage it, and with the money so raised purchase other real estate. How the decree can clear the property of this trust mthout having the trustee before the court is difficult to see. This was the object of the suit; but how can it be made effectual for that purpose in the absence of the person in whom the title is vested? We think, that in a case like this, where a woman under the double disability of coverture and infancy, has a trustee in whom the title of the controversy is vested for her use the court should have refused a decree until he was made a party. (Note: Part of opinion not in point, omitted.) V PROCESS 19. PHOENIX MUTUAL LIFE INS. CO. V. BEETHA WULF et al. 9 Bissel 285 Geesham, J.: The defendant, Bertha Wulf, owned certain real estate in Indianapolis, which she conveyed, her husband joining, to a third person, who conveyed it back to her hnsband, Henry Wulf. The husband, the wife joining, then mortgaged the same property to the Phoenix Mutual Life Insurance Company to secure a loan. The mortgage showed upon its face that it was to secure a loan to the husband. The loan Was not paid at maturity, and afterward the mortgage was foreclosed in this court. Bertha Wulf subsequently brought suit in this court to set aside her deed to the third party, his deed to her husband, and the mortgage of herself and husband to the insurance company on the sole ground that she was a minor when she executed those instruments. The serv- ice in the foreclosure suit was after Bertha Wulf had attained her majority, and the decree against her was by default. The marshal's return shows that the subpoena in the foreclosure suit was properly served on Henry Wulf in compUance with Equity Rule 13. As to the wife, the return reads thus: "I served Bertha Wulf by leaving a copy for her with her husband." Sometime after the wife commenced her suit, as already stated, the marshal appeared and asked leave to amend his return, so as to show that he had served the subpoena on her by leaving a copy for her with her husband, at her dwelling-house or usual place of abode. 58 PROCESS 59 The defendant, Henry Wulf , occupied a building at the corner of Virginia avenue and Cohurn street, in In- dianapolis, both as a dwelling and a family grocery. In the lower story there were two rooms, the main one being occupied as a grocery, and the back smaller one for stor- age purposes. These two rooms were separated by a haU which was entered by a door from Coburn street, and also from Virginia avenue through the grocery. A stairway led from the hall to the second story, where the family dwelt, eating and sleeping. The hall and stairway were accessible in both ways. ■ The deputy marshal found the husband in the grocery and there served the subpoena on him and then inquired for his wife, and was informed that it was early in the morning and she was upstairs in bed where the family lived. The oflBcer, then, in the grocery, handed to the husband a copy of the subpoena for his wife. Upon these facts was there a valid service on the wife under the 13th Equity Rule, which declares that the serv- ice 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? It is urged by counsel that the officer handed to the husband a copy of the subpoena when he was not at the ' ' dwelling-house or usual place of abode ' ' — that the gro- cery room was as distinct from the residence in the upper story, as if the two had been in separate buildings miles apart. That construction of the rule is narrow and un- reasonable. It is conceded that if the officers had handed the copy to the husband in the hall the service would have been good, because the upper story was approached only through the hall, and it was therefore connected with the dwelling. There were but two ways of ingress to the residence or upper story — one from Virginia ave- nue, through the grocery, and the other through the door CO PHOENIX MUTUAL INS. CO. V. BEETHA WULP ET AL. opening from Coburn street. The family passed in and out as best suited their convenience. A copy was left with one who understood its contents and was likely to deliver it to the person for whom it was intended. The case of Kibbe v. Benson, 17 Wallace 625, is cited against the sufficiency of the service. That was an ac- tion of ejectment in the circuit court of the United States for the Northern District of Illinois, which had adopted the statute of that state relating to actions of ejectment. After judgment was entered for the plaintiff by default, the defendant filed a bill in equity to set aside the judg- ment on the ground that he had no notice or knowledge of the pendency of the suit and for fraud. The Illinois statute required that in actions of ejectment, where the premises were actually occupied, the declaration should be served by delivering a copy to the defendant named therein, who should be in the occupancy of the prem- ises, or if absent, by leaving the same with a white per- son of the family of the age of ten years or upwards ' ' at the dwelling-house of such defendant. ' ' On the trial of the equity suit, one Turner swore that when he called at Benson's house to serve upon him the declaration, he was informed by Benson's father that Benson was not at home, and that while the father was standing near the southeast corner of the yard, adjoin- ing the dwelhng-house, and inside the yard, and not over 125 feet from the dwelling-house, he handed him a copy of the declaration, explaining its nature, and requesting him to hand it to his son, after which the father threw the copy upon the ground, muttering some angry words. There was a conflict in the testimony, but the circuit court decided that even if the copy was handed to the father, as testified to by Turner, the service was not sufficient, and set aside the judgment which had been en- tered' by default, and the decree was affirmed on appeal. In deciding the case the Supreme Court say: "It is not unreasonable to require that it (copy of the declaration) PROCESS 61 should be delivered on the steps, or on a portico, or in some out-honse adjoining to or immediately connected with the family mansion, where, if dropped or left, it wonld likely reach its destination. A distance of 125 feet, and in a comer of the yard, is not a compliance with the requirement." Rule 13 should receive a literal construction. It does not require the copy of the subpoena to be left with a person in the dwelling-house ; it is suflS,cient if the person who receives the copy is at the dwelling-house. The rule is satisfied by a service outside the dwelhng-house at the door, just as weU as inside the house. I think Bertha Wulf was in court when the decree of foreclosure was entered. This is not a motion to correct the pleadings, judgment or process. Courts have the power to permit officers to amend their returns to both means and final process, and the power is exercised liberally in the interest of justice, especially when the rights of third parties are not to be affected by the amendment. In the exercise of sound discretion they have allowed officers to amend their re- turns according to the real facts after the lapse of sev- eral years, and when there is no doubt about the facts, such amendments have been allowed after the officer's term has expired. I think justice requires that the amendment should be allowed in this case. 20. GRAY V. LARRIMORE 4 Sawyer U. S. 638 Statement of Facts: Action to recover certain real estate in the city of San Francisco. Both parties claimed under Franklin C. Gray; the plaintiffs, as his widow and infant child; the defendants as the pur- 62 GRAY V. LAEEIMOEE chaser under a judicial sale made by order of a district court of the state of California in a case in which W. H. Gray, who claimed to be a partner of F. C. Gray, was the plaintiff, and the administrators of F. C. Gray and his widow and child were defendants. The widow and child being non-residents, process by publication was resorted to, to bring them before the court. After this suit was instituted another like suit was in- stituted by C. C. Eaton, who also claimed to be a partner with F. C. Gray. The suits were consolidated, and the decree ordering a sale was made in the conjoint suit. The chief question raised by the pleadings and testimony was whether the decree obtained in that suit was bind- ing upon the non-resident widow and infant. Opinion by Field, J. : It is a familiar doctrine that the jurisdiction of any court over either the person of the defendant or of the subject-matter may be inquired into whenever any right or benefit is claimed under its pro- ceedings. The want of jurisdiction will render its judg- ments and decrees unavailable for any purpose. Borden V. Fitch, 15 John. 140; Williamson v. Berry, 8 How. 541. The doctrine is as applicable to the proceedings of courts of superior or general authority as it is to courts of inferior or limited authority. The difference between these courts in this respect relates only to the presump- tions raised by the law. With reference to courts of superior or general authority jurisdiction is presumed until the contrary appears ; but with reference to courts of inferior or limited authority, the jurisdiction must be affirmatively shown by parties who claim any right or benefit under their proceedings. Mills v. Martin, 19 John. 33 ; Bloom v. Burdick, 1 Hill 140. The general presumption indulged in support of the judgments and decrees of the superior courts is, how- ever, limited to jurisdiction over persons within their territorial limits; persons who can be reached by their process, and also over proceedings whioh are in ac- PROCESS 63 cordance with the course of the common law. Whenever it appears, either from inspection of the record or by evidence outside the record, that the defendants were at the time of the alleged service upon them beyond the reach of the process of the court, the presumption ceases, and the burden of establishing the jurisdiction over them is thrown upon the party who invokes the benefit or pro- tection of its judgments and decrees. So, too, the pre- sumption ceases when the proceedings are not in ac- cordance with the course of the common law. With rief- erence to such proceedings the superior courts, though in other respects possessing general authority, exercise only a limited and special jurisdiction. In the bills of complaint in the two actions of Gray and Eaton, the absence of the infant Franklina from California and her residence in another state are al- leged. The presumption of jurisdiction over her person by the district court is thereby repealed, and it remains for the defendants to show that by means provided by the statute in such cases the jurisdiction was acquired, the statutes substitute, in cases of a non-resident and absent defendant, constructive service, by publication of the summons, in place of personal service ; and it desig- nates the facts which must appear to authorize an order for the publication, the period for which the publication must be made, and the manner in which such publication must be proved. The statute is in derogation of the conamon law, and its provisions must be strictly pursued. A failure to comply with any of the particulars stated will be fatal unless cured by the voluntary appearance of the party. (Note: Part of the opinion not in point, omitted.) VI ALLEGATIONS OF BILL 21. SANDIFER v. SANDIFEE 229 III. 523 Justice Dunn : The appellants filed their bill for par- tition in the circuit court of Franklin county against the appellees, in which they alleged that Eobert Sandi- fer, during his lifetime, was the owner in fee simple of certain real estate therein described, and that being in feeble health, he and his wife, Martha, were desirous of arranging their affairs so that the survivor might die seized, during the life of the survivor, and for that pur- pose, on December 6, 1887, he made a deed to his wife, the material parts of which are as follows : "The grantor, Robert Sandifer, of Six-mile township, in the county of Franklin and state of Illinois, for and in consideration of natural love and affection and one dollar in hand paid, convey and warrant to Martha Sandi- fer, of Six-mile township, county of Franklin and state of Illinois, the following described real estate, to-wit: * * * It is hereby agreed by and between the parties grantor and grantee, that upon the death of the parties hereto that the estate of the parties hereto, both real and personal, shall be divided in severalty among our legal heirs, equally." The bill alleged that this deed was acknowledged by the grantor on the day it bears date but was not ac- knowledged by his wife until December 2, 1893; that complainants are not advised as to whether or not the deed was ever delivered to Martha Sandifer, but state that since her death they have been informed that it was 64 ALLEGATIONS OP BILL 65 never actually delivered to her in the lifetime of her husband, and therefore the complainants pray that the question of the delivery of said deed may be inquired into by the court; that even if said deed was delivered during the lifetime of Robert Sandifer, it is clearly mani- fest from its face that the only purpose of the deed was to create a life estate in Martha Sandifer, to terminate at her death; that Eobert and Martha Sandifer contin- ued to live together as husband and wife until about December 2, 1893, when Robert Sandifer died intestate, leaving the complainants, his nephews and nieces, his only heirs-at-law ; that at the time of his death he and his wife were occupying the premises as a homestead, and Martha Sandifer continued to occupy the same until her death, in the spring of 1905 or 1906 ; that as to whose possession said deed has been in after its acknowledg- ment by Martha Sandifer complainants are not fully ad- vised, but aver that they are informed that said deed, during all this time and up to the death of Robert Sandi- fer, has remained among his papers and has never been actually delivered to Martha Sandifer, and was found after the death of Robert Sandifer and placed on record, and that upon the death of Martha Sandifer her estate or interest in the real estate terminated. It is alleged that appellee Cleveland B. Sandifer claims to be an adopted child of Martha Sandifer, and as such to have an interest in the premises, and he and the other appellees, who are alleged to claim an interest as grantees of Martha Sandifer or Cleveland B. Sandifer, are made de- fendants. A general demurrer to the bill was sustained, the bill dismissed for want of equity, and an appeal has been prosecuted to this court. The allegations of the bill are insufficient to raise the question of the delivery of the deed. It nowhere states positively, or even upon information and belief, that the deed was not delivered. The strongest averment is, that complainants have been informed that the deed was B. p. C.—5 66 JOHNSON V. EGBERTS never actually delivered to Martha Sandifer. No ma- terial issue could be made on this averment. It should have gone further and alleged complainants' belief in the truth of the information and charged the fact accord- ingly. Primmer v. Patten & Co., 32 111. 528. Appellants contended that the deed conveyed only a life estate to Martha Sandifer and made no disposition of the fee. It is in the statutory form of a warranty deed, and must be held to convey an estate in fee simple unless a less estate is limited by express words or ap- pears to have been granted by construction or operation of law. (1 Starr & Cur. Stat., chap. 30, sees. 9, 13, pp. 923-925.) The words used do not purport to limit the estate granted. They do not refer specifically to the lands conveyed by the deed, but generally to all prop- erty, real and personal, which the parties might own at death. They constitute a covenant between the parties but do not affect the estate conveyed. This clause is properly considered in connection with the whole deed in determining the estate granted, but when so con- sidered it does not appear to have been intended to limit the estate or reduce it to less than the fee simple. The decree is affirmed. 22. JOHNSON v. ROBERTS 102 III. 655 Justice Walkee : This was a bill to enjoin the collec- tion of a tax. It alleges that complainant resides in South Chicago; that he made no return to the assessor of that town for the year 1880, but was assessed for per- sonal property at his residence, and paid $21.14 thereon. He alleges that he owns the half of two lots situated in that town, upon which he paid a real estate tax of $808.59, for the year 1880; that he was assessed on per- ALLfeGAtlONS OP BILL 67 sonal property, macliinery on the lots, $1,300, upon which a tax was extended of $78.50 ; that the machinery did not exceed $200 in value ; consisting in helting, pulleys, etc. ; that the assessment included the engines and boilers in the building, but they were not worth more than $300; that the engines and boilers were permanently attached to and were a part of the realty, and were not person- alty; that they were so attached as to constitute a part thereof, so far as the owner of the fee is concerned and that any real estate tax as aforesaid is as much a tax on the engines and boilers as on the land; that they were improperly assessed as personal property; that per- sonal property did not exist on the lots; that therefore the tax, except on the personal property of the value not to exceed $100, is inequitable, unjust, oppressive and illegal, and prays for an injunction perpetually restrain- ing the collection of all but the tax on $100 of valua- tion. A demurrer was filed to the bill. On a hearing the demurrer was overruled, and a perpetual injunction de- decree to prevent the collection of the tax on the engines and boilers, except taxes on the $100 valuation. An ap- peal is prosecuted to reverse the decree. The demurrer admitted all facts properly pleaded, but did not admit arguments or legal conclusions, and its office is to determine whether the facts as stated consti- tute grounds for granting equitable relief. The bill, even if it otherwise stated grounds for equitable relief, is de- fective in not averring a tender of the amount of the tax that is admitted to be legal. Again, no equitable excuse is shown for not appearing before the town board of re- view, under section 86 of the Revenue law, or to the county board, under the 97th section of the same act. These boards were invested with full power to relieve all persons applying to be relieved from grievances by improper assessment. But if these objections were waived, does the bill allege facts in other respects sufficient to require the granting 68 JOHNSON V. BOBEBTS of the relief sought? It alleges that the personal prop- erty of appellee was assessed at his residence, and that he paid the tax extended on that. He does not allege or claim that he made and furnished a list of his taxable property to the assessor, nor does he claim that he gave in any personal property at his factory, whether the engine and boilers, or other personalty he admits to have been subject to taxation as such ; nor does the bill allege that the engine and boilers were assessed as a part of the real estate to which they were attached, nor that their value was in any manner considered in fixing the valu- ation of the real estate ; nor does it allege that the engine and boilers were twice assessed, but it is alleged they were permanently attached to the real estate, and were, as to him, a part of the real estate ; that the real estate was assessed, and he paid the tax assessed upon it, and draws the conclusion, from these premises, that .there- fore the engine and boilers were twice assessed, and he had already paid the tax on them. The conclusion does not logically follow from the premises. The 25th section of the Eevenue law requires all persons to make out and deliver to the assessor a schedule of his or her personal property required to be listed for taxation. The form of the schedule is given in that section. The sixth item is : "Every steam engine, including boilers, and the value thereof. ' ' For the purposes of taxation these articles are made and required to be listed and valued as personal property, and it is made the duty of the owner to so re- turn, and the assessor to so list and value them; and the assessor having no power to treat or value them as a part of the real estate, and having listed them as personal property, we must presume he did his duty. But it is contended that all permanent fixtures be- come and are a part of the land, and pass with it; that the engine and boilers are such fixtures, and therefore the presumption is they were assessed and valued as a part of it. This is doubtless true at common law, and is ALLEGATIONS OP BILL 69 true as between grantor and grantee, but for the pur- poses of taxation the legislature has changed the rule. It is, however, as we understand the argument of counsel, contended the legislature has no power to make such fix- tures personal property. It is conceded that the legis- lature is invested with and may exercise all governmental power, unless restricted by the State constitution, or the power has been delegated to the general government, or the Federal constitution has prohibited its exercise. No reason is perceived why the General Assembly, if so disposed, may not declare every species of property per- sonal, and subject it to all of the incidents of personalty; or why it may not, for the purpose of taxation, require any portion of real estate, or any of its parts or acces- sories, to be listed, taxed, and sold for the payment of the taxes thereon, as personal property, and authorize the person purchasing to detach and remove the parts, whether it be standing trees, crops, or even windows or doors of houses or dwellings. The power no doubt exists, and the legislature is the sole judge of the neces- sity and expediency of its exercise. As appellee has totally failed to show any grounds for relief, the court below erred in overruling the demurrer, but should have sustained it and dismissed the bill. The decree of the court below is reversed, and the cause remanded. 23. CHAPMAN v. BAENEY 129 U. 8. Rep. 679 Me. Justice Lamab delivered tiie opinion of the court : In its original form, this was an action of assumpsit, brought in the court below, by the United States Express Company, alleged to have been organized under and by virtue of the laws of the State of New York, and a citizen 70 CfiAPMAN V. BARNEY of that state, against Heman B. Chapman, a citizen of Illinois, to recover the sum of $14,000, in money, alleged to have been entrusted to him for delivery to a certain company at La Salle, Illinois, and converted by him to his own use. At the same term of the court in which the declaration was filed. Chapman answered, setting up two defences, viz.: (1) non assumpsit; and (2) nul tiel corporation. On the 8th of August, 1869, upon statutory affidavit filed on behalf of the company, a writ of attachment was issued, under which writ the marshal of the district levied upon certain personal property and effects of the plain- tiff in error. At the succeeding term of the court, upon motions made by the company for that purpose, leave was given it to file an amended declaration, and to change its action from assumpsit to trover; and the plaintiff in error was ruled to plead to the amended declaration within ten days after service of a copy thereof upon his attorneys. In conformity with such order, at the December term, 1879, of the court, the plaintiff amended the declaration so as to make it, in lieu of the original, read as follows : "Ashbel H. Barney, president of the United States Express Company, a joint stock company organized under and by virtue of a law of the state of New York, and which said company is authorized by the laws of the state of New York to maintain and bring suits, in the name of its president, for or on account of any right of action accruing to said company, and a citizen of the state of New York, the plaintiff in this suit, by E. F. Bull and James W. Duncan, its attorneys, complains of Heman B. Chapman, a citizen of the state of Illinois," etc. After the leave to amend the declaration was given, but before the amended declaration was filed, the plain- tiff in error was convicted of perjury in the circuit court of La Salle county, Illinois, and sentenced to imprison- AUiEQATIONS OP BILL 71 ment in the Joliet penitentiary, for the term of seven years, tinder which sentence he was, on January 2, 1880, removed to said penitentiary, and there imprisoned until October, 1884. Without any proof of service of a copy of the amendment, or any order for the default of the plain- tiff in error for want of plea to the amended declaration, and without any plea thereto having been filed by him, the case was called for trial, and the record shows the fol- lowing proceedings to have been had : "Said cause having been called for trial, plaintiff ap- peared, and defendant and his attorney failing to appear, thereupon, upon issue joined, comes a jury (naming them) who were sworn well and truly to try said issue, and who, after hearing the evidence, returned the follow- ing verdict: 'We, the jury, find the issue for the plain- tiff, and assess his damages at fourteen thousand dol- lars;' " and then follows judgment, on March 27, 1880, in usual form, on the verdict, for $14,000, and costs. On the 8th of October, 1885, plaintiff in error filed in the court below his bond for the prosecution of a writ of error to reverse said judgment, and the same was duly approved by the circuit judge. The mittimus under the sentence above referred to, the certificate of the warden of the penitentiary, and the affidavit of plaintiff in error, were all filed in the case and made part of the record; and they show that plaintiff in error was imprisoned in the Joliet penitentiary from January 2, 1880, to October 4, 1884; and another affidavit of the plaintiff in error, also filed in the case and made part of the record, shows that on his discharge from the penitentiary, October, 1884, he was at once arrested on a capias ad satisfacien- dum, issued upon the judgment above mentioned, and from that time until the issue of the writ he had been imprisoned in the county jail of Cook county, Illinois, upon such capias. His case is thus brought within the provisions of Sec. 1008 Eev. Stat., which provides that, in case a party entitled to a writ of error is imprisoned 72 CHAPMAN V. BABNEY he may prosecute such writ within two years after judg- ment, exclusive of the term of such imprisonment. The assignments of error relied upon are three in nimiber, and are substantially as follows : (1) The court erred in permitting a new sole plain- tiff to be substituted for, and in the place of, the sole original plaintiff, (2) The court erred in submitting to the jury the cause as it stood after the amendments aforesaid, as upon issue joined between said parties, in entering the verdict of the jury in said cause, and in rendering judgment thereon in favor of the defendant in error, when th«re was no issue joined between said parties. (3) The court erred in proceeding to trial and enter- ing a verdict and rendering judgment against plaintiff in error when he had no notice of the order giving leave to amend, or of such amendment, and had had no time or opportunity to plead to the amended declaration, nor any day in court to answer to, or defend against, the suit of the new plaintiff. We do not think the first assignment of error well taken. Amendments are discretionary with the court below, and not reviewable by this court. Mandeville v. Wilson, 5 Cranch, 15; Sheehy v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Chirac v. Reinieker, 11 Wheat. 280; Wright v. HoUingsworth, 1 Pet. 165; United States v. Buford, 3 Pet. 12; Matheson v. Grant, 2 How. 263 ; Ex parte Bradstreet, 7 Pet. 634. We think the second point for plaintiff in error is well taken. Where there has been an appearance and no plea, or where, on account of amendments and changes of pleadings, the declaration remains without an answer, the plaintiff may move for a judgment for the want of a plea, as upon nil dicit. But no such motion was made. Certainly a jury should not be called, and verdict entered where no issue is joined, unless for assessment of dam- ages, merely. The court erred in rendering judgment ALLEGATIONS OF BILL 73 thereon. In addition to the authorities cited by counsel for plaintiff in error, see Hogan v. Ross, 13 How. 173. We also think the third point well taken. The plaintiff was not entitled to judgment without coilforming to the conditions imposed by the court in the very order giving leave to amend the declaration; and, under such circum- stances, the court erred in rendering judgment against defendant. But aside from all this, we are confronted with the question of jurisdiction, which, although not raised by either party in the court below or in this court, is pre- sented by the record, and under repeated decisions of this court must be considered. Sullivan v. Fulton Steam- boat Co., 6 Wheat. 450; Jackson v. Ashton, 8 Pet. 148; Grace v. American Central Ins. Co., 109 U. S. 278 ; Con- tinental Ins. Co. V. Ehoads, 119 U. S. 237; Cameron v. Hodges, 127 U. S. 322, and authorities there cited. The ground upon which the jurisdiction of the federal court is invoked is that of diverse citizenship of the parties. In Eobertson v. Cease, 97 IT. S. 646, 649, it was said that "where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal in- tendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirma- tively, and with equal distinctness, in other parts of the record," citing Railway Co. v. Ramsey, 22 Wall. 322; Briges v. Sperry, 95 U. S. 401; and Brown v. Keene, 8 Pet. 112. See also Menard v. Goggan, 121 U. S. 253 ; Halsted v. Buster, 119 U. S. 341; Everhart v. Huntsville College, 120 U. S. 223. On looking into the record we find no satisfactory showing as to the citizenship of the plaintiff. The alle- gation of the amended petition is, that the United States Express Company is a joint stock company organized under a law of the state of New York, and is a citizen of that state. But the express company cannot be a citizen of New York, within the meaning of the statutes regulat- 74 EITTENHOUSE, APPELLANT, Y. NBWHARD ing jurisdiction, unless it be a corporation. The allega- tion that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is, that the company is not a corpora- tion, but a joint-stock company — that is, a mere part- nership. And, although it may be authorized by the laws of the state of New York to bring suit in the name of its president, that fact cannot give the company power, by that name, to sue in a federal court. The company may have been organized under the laws of the state of New York, and may be doing busi- ness in that state, and yet all the members of it may not be citizens of that state. The record does not show the citizenship of Barney or of any of the members of the company. They are not shown to be citizens of some state other than Illinois. Grace v. American Central Ins. Co., supra, and authorities there cited. For these reasons we are of the opinion that the record does not show a case of which the circuit court could take jurisdiction. The judgment of that court must there- fore be reversed at the costs, in this court, of the defend- ant in error. Hancock v. Holbrook, 112 U. S. 229; Hal- stead V. Buster, supra; Menard v. Goggan, supra. The judgment is reversed and the cause remanded, with directions to set aside, the judgment, and for such further proceedings as may not be inconsistent with this opinion. 24. EITTENHOUSE, APPELLANT, v. NEWHAED 232 Pa. St. Rpts. 434 Peb Cubiam: This bill was for an injunction to re- strain the defendant from shutting oif the flow of water in a pipe that extended from a spring on h'is land to the land of an adjoining owner, and thence to the plaintiffs ' properties in a village near by. The rights claimed by ALLEGATIONS OF BILL 75 the plaintiffs were based on the allegation that a verbal agreement had been made between them and the defend- ant for the construction and maintenance of the line of pipe. This allegation was not sustained by proof. The material findings of fact are that prior to 1888 the water from a spring on the defendant's land ran in an open channel some 1,500 feet in length to the property of The Mountain Grove Camp Meeting Association where it was collected in a small reservoir for the use of the association. From that reservoir, a pipe extended to the houses of the plaintiffs. In 1888, the association wish- ing to obtain a purer supply of water, entered into a verbal agreement with the defendant by which it was per- mitted to enter on his land and dig a ditch and lay a pipe from the spring to the line of its property and it agreed to lay a branch pipe from the main line of defendant's lajid to his buildings and to provide a hydrant and keep it in repair. This agreement was to last as long as the association continued to hold camp meetings on its land and no longer. The association purchased the materials necessary and subsequently entered into an agreement with the plaintiffs under which they assisted in the in- stallation and maintenance of the pipes and hydrant. To this agreement the defendant was not a party, and he had no knowledge of it at the time it was made. The association was dissolved and went out of existence in 1901. The bill was properly dismissed because of the failure to establish the agreement on which the right to equitable relief was based. The contention that the bill should have been sustained on the grounds of ratification and estoppel is without merit. There was proof of neither, nor of any facts from which either would arise. But if there had been proof, the bill could not have been sus- tained. Belief cannot be granted for matter not alleged. Luther v. Luther, 216 Pa. 1. The decree is affirmed at the cost of the appellant. 76 BROWN V. CITY OP AUfiOttA 25. BROWN V. CITY OP AURORA 109 III. 166 Mk. Justice Mulkby delivered the opinion of tlie court : Eugene L. Brown, the plaintiff in error, recovered a judgment in the Kane circuit court, against the city of Aurora, for $6,000, on account of injuries received by him in a fall upon one of the sidewalks of that city, charged to have been occasioned by the negligence of the city in not keeping the same in repair. On appeal by the city to the appellate court for the second district, the judgment was reversed, on the ground the evidence did not support the' verdict of the jury, and for this rea- son the appellate court declined to remand the cause to the circuit court for another trial. Brown thereupon sued out the present writ of error, and the case is now before us for review. The facts, as specifically found by the appellate court, and recited in the final order in the cause, are as fol- lows: "That the sidewalk upon which the injury was received was, at the time the said injury was received, reasonably safe, as a sidewalk, for the appellee (plain- tiff in error) to pass over it, if he exercised ordinary care; that before and at the time appellee passed over said sidewalk on the occasion of receiving said injury, he was fully aware of the condition as to its slipperiness and all other defects in and of said walk, and at the said time of so passing over the said sidewalk, he, the ap- pellee, did not exercise that ordinary care that a reason- ably prudent man would have done under the same cir- cmnstances; and we further find that the appellant did exercise ordinary care in constructing and maintaining said walk, and was in the due exercise of such care in maintaining said walk at the time of said injury." It is virtually conceded by counsel for plaintiff in error that if the foregoing is, within the meaning of the stat- ALLEGATIONS OF BILL 77 ute, to be regarded as a finding of the facts, it is con- clusive of the case in this court, and the judgment of the appellate court must necessarily be affirmed. It is urged, however, that the findings of the appellate court are mere conclusions upon the facts, rather than the findings of the facts themselves. If by " conclusions upon the facts ' ' counsel mean "conclusions of fact" — ^^or, in other words, inferences drawn from the subordinate or evidentiary facts, — the statement to that extent may be conceded, and yet it does not at all militate against the conclusiveness of the findings. In all cases the ultimate fact or facts to be established in a suit, and upon which the rights of the parties to it necessarily depend, are, when considered with reference to the facts or evidence by which they are established or proved, but the logical results of the proofs, — or, in other words, mere conclusions of fact. Yet these logical results of the proofs or conclusions of facts, when considered with reference to the basis of the judgment to be rendered in the cause, are properly termed the "facts found," or ultimate facts in the case. The case in hand affards as good an illustration of this as any that could be suggested. Now, what was the main and ultimate fact which the plaintiff was bound to prove in order to recover? Mani- festly the city's negligence, as charged in the declara- tion. How was this to be done? Not by direct proof, for negligence is not an object of any of the human senses. It, like love, anger, or good faith, is an impal- pable entity, which exists in contemplation of mind only. While we daily see acts and conduct from which we may unerringly infer negligence, yet no one ever saw negli- gence itself. It is always a inere inference or conclusion deducible from some other fact or facts, either witnessed or satisfactorily established. When the appellate court, therefore, examined all the subordinate facts bearing upon the question of negligence, it found, as an inference or conclusion from such subordinate facts, that the city 78 BROWN V. CITY OP AUEORA was not guilty of the negligence charged, and in doing so it was acting strictly in the discharge of a proper and legitimate function, which it, and not this court, is author- ized to perform. Do counsel wish to be understood as maintaining that the facts which the appellate court is required to recite in its final order are nothing but the evidentiary facts, — or, more shortly, the evidence in the cause? And is it only these fg,cts this court is prohibited from consider- ing? It is manifest the legislature never could have in- tended anything of that kind. So far as the mere evi- dence or subordinate facts are concerned, there can never be any controversy as to what they are when once em- bodied in a bill of exceptions. The great controversy in all cases is, as to whether these subordinate facts prove the ultimate or issuable facts upon which every case must necessarily turn. If this court is bound to re- examine the issuable facts in every case where it is claimed the appellate court has erred in its findings, as is insisted on here, would it not necessarily lead to an examination of every case upon the evidentiary facts also? For how could the conclusions of fact be passed on without considering the testimony upon which they are based? It is clear there would be no other way of doing it, and this conclusively shows the fallacy of such a position. If the appellate court had no right to find there was, or was not, negligence on the part of the city, what should it have found? Should it merely have gone on and recited that this witness swore to this fact, and that witness swore to tiiat fact, and so proceeded until everything testified to had been gone over? To have done so would really have been finding nothing, for all that would have been apparent upon a mere reading of the bill of exceptions. The appellate court, where it differs from the conclusions reached by the trial court, is re- quired to recite in its final order the facts as found by that court. The expression "facts as fov/nd," necessarily ALLEGATIONS OP BILL 79 implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum probandum, or ultimate fact or facts, upon which the case depends, and which is was the duty of the appellate court to find. The errors assigned do not question any of the rulings of the circuit court. Nor is it claimed that any error of law has intervened, except that which results from the specific findings of the appellate court, and the judg- ment of reversal founded thereon. As to these matters the action of the appellate court is conclusive on this court. If its special findings were warranted by the evidence, its judgment of reversal was manifestly proper, and whether the evidence warranted the special' findings is not a matter for review in this court. The judgment will be afiirmed. (Note: The above, though a law case, it is authority upon ultimate facts and evidentiary facts). 26. MALDEN & MELROSE GAS LIGHT CO. v. CHANDLER 209 Mass. Rep. 356 Bkalet, J. : The plaintiff desired to enlarge its works, and the board of directors voted that the defendant, who was the president of the company, be appointed with the vice-president as a committee "with authority to pur- chase such additional land for the enlargement of the company's business as in their judgment may be advisable." The defendant, acting under the vote, appears to have conducted the negotiations which resulted in the purchase and a transfer of title to the plaintiff of the parcels of land described in the bills of complaint. It is settled, that, in the exercise of the authority conferred upon him, the defendant could not enrich himself at the expense of his principal by 80 MALDEN & MELROSE GAS LIGHT CO. V. CHANDLER charging and receiving a larger price than that for which he actually bought the property. Having been appointed to act in the plantiff's interest, he was bound to buy on the best possible terms, and he could not directly or indirectly make a profit for himself. If as alleged, he bought for much less than the price he represented to the plaintiff, he would be accountable for the money which the company paid him in ignorance of the decep- tion. Greenfield Savings Bank v. Simons, 133 Mass. 415 ; Quinn v. Burton, 195 Mass. 277, 279; Kilbourn v. Sun- derland, 130 IT. S. 505. The evidence at the trial as to the terms of sale was contradictory. If the defendant's testimony was ac- cepted, the payments received by him did not exceed the price for which each estate had been purchased, while the evidence of the plaintiff tended to support its conten- tion, that it had been deliberately defrauded. The credi- bility of the witnesses was for the presiding judge to de- termine, and it must be assumed that the evidence, which is fully recited, justified the finding that the money had been converted. But the cases being before us on ex- ceptions, the refusal of the judge to make certain find- ings of fact requested by the defendant and the general finding of conversion cannot be reviewed, as only ques- tions of law are open. Kennedy v. Welch, 196 Mass. 592. The findings upon which the judge decided that there had been a conversion and the facts upon which he re- fused the defendant's second request were not stated. It only appears that certain facts were found which rendered these requests inapplicable. The findings manifestly must have been adverse, and, if the defendant desired further information as to what they were, he should have applied for and obtained them. If he deemed the conclusions to have been wholly unwarranted, he fails to show that he has been aggrieved, for we do not understand him to contend, nor did he ask for a ruling, that upon all the evidence, independently of the plead- ALLEGATIONS OP BILL 81 ings, the judge could not find that the defendant acted dishonestly and accordingly have ordered a decree for the plaintiff. National Mahaiwe Bank v. Barry, 125 Mass. 20. But, as to the first requests, the judge, on the assump- tion that unless he found the facts to be as therein set forth the plaintiff could not recover, refused to give them. The defendant in support of his exceptions relies on the familiar rule of equity pleading that the bill should contain a clear and accurate statement of the facts upon which the plaintiff rests its case for relief, and that it can introduce evidence only which tends to support the averments. It is then pressed that the facts recited in the requests are the essential allegations which the plaintiff was required to prove, and that unless the judge found that they had been proved a decree for the plaintiff could not be supported. It undoubtedly would have been enough to have alleged generally that the de- fendant as the agent of the plaintiff bought for a certain price the lands m question, and, having obtained unlaw- fully from the plaintiff a larger amount, he was charge- able with the overpayment, and it would be unnecessary to state minutely all the circumstances, which properly are matters of evidence. Rogers v. Ward, 8 Allen, 387 ; Lovell V. Farrington, 50 Maine, 239; Grove v. Eentch, 26 Md. 367, 377; R. L. c. 159, Sec. 12. And, if the action had been at law, a count for money had and received would have been sufficient. Cole v. Bates, 186 Mass. 584, 586; Foote v. Cotting, 195 Mass. 55, 63. The stat- ing part of the bill set forth with much particularity the details of the transaction, but, even if there may have been unnecessary amplification, the material facts on which the plaintiff relied for relief are stated with cer- tainty, and if proved they were sufficient to support the decree. The allegation recurs throughout the stating part, that the defendant bought for a specific price. It is then charged, as the foundation of the right of recov- E. p. C— 6 I 82 BEEVES V. SLATER ery, that, when the plan to defraud had been perfected, the wf ong was finally consummated by obtaining from the plaintiff by false representations amounts very largely in excess of the amount the defendant actually had contracted to pay. The essential averment follow- ing the details of the scheme was that the money had been obtained wrongfully, and the finding of a conversion must have rested on this ground. If the plaintiff was confined to this averment (and, where there is a vari- ance, recovery can be had only on the case stated in the bill and not upon the case made out by the evidence), the judge was not restricted to the actual price paid to the vendors. Gurney v. Ford, 2 Allen, 576; Drew v. Beard, 107 Mass. 64, 73; Harding v. Handy, 11 Wheat. 103; Crocket v. Lee, 7 Wheat. 522, 525. It might have fallen below or exceeded the amount stated and in either instance there would not have been a variance if he found that the plaintiff had been defrauded and then deter- mined the amount that the defendant wrongfully re- ceived. The ruling refusing the requests should not be interpreted as meaning that if the evidence justified recovery the plaintiff could prevail even if the proof did not correspond with the averments. It was refused, and properly refused, because it omitted all reference to the fundamental allegation of liability which the judge was satisfied had been established. We find no error in the admission and exclusion of evidence. 27. REEVE'S v. SLATER 36 App. D. C. 489-493 Mb. Chief Justice Shepard delivered the opinion of the court : This is an appeal from a decree dismissing the bill of James C. Reeves, filed December 31st, 1909, ALLEGATIONS OF BILL 83 against John T. Slater and William J. Kehoe, to restrain execution of a judgment. It is unnecessary to set out the allegations of the bill, or the answer which denied its material allegations. It appears that Reeves had been in possession for more than twenty years of twelve lots in the city of Wash- ington, comprised in squares 604 and 605, and was de- sirous of perfecting his title thereto. After some ne- gotiations with Slater, who, it seems, was not a lawyer, but had some experience in tax titles, etc., they entered into the following agreement : "This agreement, had, made, and entered into this the 22d day of January, A. D. 1904, by and between James C. Eeeves, of the city of Washington, in the District of Columbia, party of the first part, and John G. Slater, also of the said city of Washington, in the said District of Columbia, party of the second part, "Witnesseth, That the said party of the first part is in adverse possession for more than twenty (20) years of certain lots situated, lying, and being in the city of Washington, in the said District of Columbia, and known and distinguished as and being lots numbered one (1) to six (6), both inclusive, in square numbered 604, and lots numbered one (1) to six (6) in square 605; that he is desirous of filing a bill in equity to quiet the title to the same: "Now, therefore, this agreement witnesseth. That for and in consideration of the said party of the second part securing the services of counsel to file such bill and prosecute the suit to its final termination without cost to the said party of the first part, he, the said party of the first part, for himself and his heirs, executors, ad- ministrators, and assigns, doth hereby covenant and agree to and with the said party of the second part, his heirs and assigns, that he will pay to the said party of the second part, his heirs and assigns, the sum of $100 per lot, or he will give to the said party of the second 84 REEVES V. SLATER part a first deed of trust for tlie said $100 per lot, on each of the said lots in the aforesaid squares. In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first hereinbefore written. "James C. Reeves. (Seal.) "Witness: "Thomas W. Soean. "JoHnT. NOEBIS." For some unexplained reason, this contract was not executed by Slater, but no question seems ever to have arisen on that ground. Slater went on under it and employed an attorney, Hallam, who filed a bill to quiet the title aforesaid. Dur- ing its progress, Slater advanced some money for costs ; but, failing to pay the examiner who took depositions in the case, Eeeves was compelled to secure the same. A decree quieting the title was obtained, which Slater as- sured Reeves perfected his title. A controversy arose concerning the payment to Slater, and the parties en- tered into an agreement for arbitration. This agree- ment, with award of the arbitrator, its acceptance by the parties, and the transfer of Slater's rights therein, are in connected writings as follows: — ' ' Whereas there is a question arising as to what John G. Slater is entitled to under a certain contract between him and James C. Reeves, relating to the perfecting of title to squares 604 and 605. "We hereby agree that 0. B. Hallam is hereby con- stituted arbitrator between us, and that he shall de- termine from his knowledge of the whole case and situa- tion as to contract, etc., without any further hearing or testimony, what, if any, amount said Reeves shall pay to Slater, — said amount to be over and above $300 attor- neys' fees and costs in the suit brought by Reeves. "James C. Reeves. "John G. Slatbb." ALLEGATIONS OF BILL 85 "I find and award that Beeves, in addition to paying $300 attorneys' fees and $110 examiner's fees, pay to Slater $500 ; that Slater is not to make any claim against him for any cost he has heretofore paid ; but that both Slater and Reeves are to be refunded according as they respectively paid them such costs as may be collected from the defendants in the suit. "0. B. Hallam. "May 1st, 1907. "We accept this award, May 7th, 1907. ' * James C. Reeves. "John G. Slateb." "For value received, I hereby transfer all my right, title, and interest in the above agreement and settlement to Mattie R. Slater. "John Gr. Slateb." Reeves paid Hallam 's fee, but failed to pay Slater or his assignee. Slater, to the use of the assignee, sued Reeves in the municipal court on August 3d, 1909. Reeves was regularly summoned. Failing to make an affidavit of defense, in reply to plaintiff's verified com- plaint, judgment was entered against him, on August 10th, 1909, for $500 and interest. This was certified to the supreme court of the district, and execution issued thereon was returned not satisfied November 8th, 1909. This judgment has been entered of record to the use of the defendant Kehoe. There was no error in dismissing the bill. There is no evidence of fraud practised in the proceedings resulting in the judgment that is attacked; and no accident pre- vented plaintiff from making defense to the action. There is no explanation of, much less excuse for, the failure to offer any defense. Assuming that the cham- pertous nature of the original contract could have been offered in defense, it was apparent when that contract was executed in 1904. If the contract was exorbitant, and the fact might have 86 REEVES V. SLATER been ground of defense, it soon became known, and the controversy over it ended in the arbitration and award made in May, 1907. If there had been a failure on Sla- ter's part to obtain a proper decree quieting the title, as he had contracted to do, it would seem that ordinary diligence would have discovered the fact before August, 1909. But, passing by the question of plaintiff's negligence, and assuming that the failure to defend the action cannot be attributed to his negligence or default, there is no evidence in the case to show that he had any substantial defense. Conceding that the contract with Slater was not only most improvident, but champertous in its terms, and one that ought not to have been enforced against the plaintiff, yet no case is made out for relief through this bill. He had insisted that the compensation provided in the contract was excessive, but admitted that Slater was entitled to something for his services. The matter of compensation was submitted to arbitration. When the award was made, plaintiff accepted it, and paid the at- torneys' fee as settled thereby. The action was upon this award, and the champertous nature of the original contract was no defense to it. While the contract was probably a foolish one, there is not a particle of evidence tending to show that fraud or imposition was practised upon plaintiff to induce him to enter into it. The claim that the decree quieting the title was irregular and inoperative is also without support in the record. The bill alleged in general terms that it was defective, and failed to perfect the title and make it marketable, but stated no fact by which the soundness of this con- clusion could be tested. The only evidence offered was that a title company had pronounced against the title, but there was no competent evidence of any ground for that opinion. The decree must be affirmed, with costs ; and it is so ordered. ALLEGATIONS OF BILL 87 28. MURPHY V. MURPHY 189 III. 362 Me. Justice Mageuder delivered the opinion of the court : The following allegation in the bill filed in this case, taken in connection with the other allegations of the bill, as set forth in the statement preceding this opinion, presents the questions, which arise upon a de- murrer to the bill, to-wit : ' ' That neither the said Joseph H. Murphy, nor Mary J. Crane, paid any consideration for said property; that your orator is informed and be- lieves, that said Joseph H. Murphy procured said war- ranty deed from said Thomas Murphy by agreeing to pay him $5000.00 therefor, but your orator states that said Joseph H. Murphy never intended to pay his father any part of said $5000.00 but that said promise was a device to and did mislead the said Thomas Murphy, and to enable the said Joseph H. and his wife to get said prop- erty without consideration, and to exclude the said broth- ers and sisters from and deprive them of their natural rights and interests in said property, or the proceeds thereof, as the heirs of said Thomas Murphy." The main question, presented by the demurrer, is whiether the allegation, so as above quoted from the bill, was sufficient as a charge of fraud against the defendants in error, Joseph H. Murphy and Mary C. Murphy, to have justified the court below in retaining the bill, and re- quiring it to be answered. The bill seeks to set aside the deeds to Joseph H. Mur- phy and Mary C. Murphy upon the theory, that Joseph H. Murphy procured a warranty deed to himself from Thomas Murphy by agreeing to pay him the sum of $5000.00, the said Joseph H. Murphy never intending, however, to pay that sum, and never having paid the same. The bill presents simply the case of a contract unperformed on the part of the grantee. This being so, 88 MDEPHT V. MURPHY the remedy is clearly at law, and suit should have been brought by Thomas Murphy in his lifetime, or by his personal representatives, for the purchase money. But, independently of this consideration, the bill merely charges a false representation as to a matter of intention. The allegation is, that Joseph H. Murphy pro- cured the deed from Thomas Murphy by agreeing to pay him ^5000.00 therefor. If he agreed to pay $5000.00 therefor, he in effect announced his intention to pay $5000.00, and the only charge of fraud is, that he did not intend to pay, when he represented that he did intend to pay. In other words, the allegation in question involves a mere promise to do a thing in the future. The repre- sentation can only be regarded as fraudulent and false from the fact, that Joseph H. Murphy never did pay $5000.00 for the property in question, and, therefore, was guilty of a breach of his promise, and nothing more. It follows, that the bill does not show such fraud on the part of Joseph H. Murphy in procuring the execution and delivery of the deed, as will authorize a court of equity to set it aside. The law upon this subject is well settled. Kerr, in his work on Fraud and Mistake, (Bump's ed., p. 88) says : "As distinguished from the false representation of a fact, the false representation as to a matter of intention, not amounting to a matter of fact, though it may have in- fluenced a transaction, is not a fraud at law, nor does it afford a ground for relief in equity." The foregoing statement of the law has been quoted with approval by this court in the following cases, to-wit : Gage v. Lewis, 68 111. 604; People v. Healy, 128 id. 9; Haenni v. Bleisch, 146 id. 262. A false representation, within the meaning of the law, must be a representation as to an existing or past fact, and not merely a promise to do an act in the future. "A failure to comply with such a promise does not constitute fraud. The general rule is that, to amount to fraud, there must be a wilful, false representation as ALLEGATTONS OP BILL 89 to an existing or past fact." (Murray v. E. P. Smith & Sons, 42 111. App. 548.) In Gage v. Lewis, supra, it was said "that to warrant an action for a deceitful representation it must assert a fact or facts as existing in the present tense. A prom- ise to perform an act, though accompanied at the time with an intention not to perform, is not such a represen- tation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy." (Gallagher v. Brunei, 6 Cow. 346.) Even if at the time when such representations, amounting to a mere promise to do an act in the future, are made, it is not intended to comply with them, it is but an unexecuted intention, which has never been held of itself to constitute fraud. (Gage v. Lewis, supra.) In Haenni v. Bleisch, supra, it appeared, that a father induced one of his daughters to make a deed, and rep- resented that, if she would do so, he would pay the value of the lands, conveyed to her, in money or other prop- erty; and this representation was held to be a mere promise to do a thing in the future ; it was also there held that the representation, so made by the father to his daughter, could not be regarded as fraudulent and false, as the only allegation of fraud and falsehood consisted in the fact that the father never did pay the value of the lands to his daughter, and this fact was held to have amounted merely to a breach of the promise, and nothing more. In the case at bar, the allegations of the bill are similar to those in the case of Haenni v. Bleisch, supra, and must be governed by the principles there announced. ' ' In alleging fraud, it is well settled, both at law and in equity, that the mere general averment, without setting out the facts, upon which the charge is predicated, is insufficient. * * * It is essential that the facts and circumstances which constitute it (the fraud) should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon 90 MUBPHT V. MUBPHY to answer. " (9 Ency. of PI. & Pr. pp. 686, 687 ; Brooks v. O'Hara, 8 Fed. Eep. 529; Jones v. Albee, 70 111. 34; Klein V. Horine, 47 id. 430.) In Smith v. Brittenham, 98 111. 188, we said: "Charges of fraud should not be general, but the facts should be stated upon which the charges are based." Here, the bill does not state the circum- stances, under which the deed from Thomas Murphy to Joseph H. Murphy was executed, nor does it state in what the agreement, claimed to have been made with fraud- ulent intent on the part of Joseph H. Murphy, consisted. The agreement is the foundation, upon which the plain- tiff in error, William M. Murphy, seeks to base his claim for relief, but it does not appear from the bill when the agreement was made, or whether it was oral or in writ- ing, or when the money was to be paid, nor does the bill state clearly any of the terms of the agreement. Moreover, the allegation of fraud, as made in the present bill, is made upon information and belief; and "an allegation of fraud upon information and belief can not be sustained, unless the facts, upon which the belief is founded, are stated in the pleadings." (9 Ency. of PI. & Pr. p. 694; Brooks v. O'Hara, supra.) "A mere state- ment that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred to." (3 Ency. of PL & Pr. p. 363; Walton v. Westwood, 73 111. 125.) In view of what has been said, the allegation in the present bill cannot be regarded as charging any agree- ment whatever between Thomas Murphy and Joseph H. Murphy as to the payment of $5000.00. The demurrer does not admit the existence of the agreement, but onlv the information and belief of the complainant in the bill upon the subject. As the fraudulent intent is based upon this supposed agreement, the bill fails to allege fraud with sufficient clearness. ALLEGATIONS OF BILL 91 For the reasons above stated, we are of the opinion that the bill was demurrable, and that the general demur- rers thereto were properly sustained by the court below. Accordingly, the decree of the court below in dismiss- ing the bill is affirmed. VII IMPERTINENCE 29. HOOD V. INMAN i Johns. Ch. (N. Y.) 437 The Chancellok: 1. It was not necessary to set forth the power of attorney in haec verba, in the answer. The substance of it was accurately stated in the bill, and to give it at length in the answer, was impertinent. Im- pertinence consists (1 Harr. Pr. 101, 303) in setting forth what is not necessary to be set forth, as where the plead- ings are stuffed with long recitals, or with long digres- sions of matters of fact which are totally immaterial. An answer, or a bill, ought not, ordinarily, to set forth deeds in haec verba; and if the pleader sets forth only so much thereof as is material to the point in question, it is sufficient. They are matter of evidence to be shown at large at the hearing. In Alsager v. Johnson (4 Ves. 217) a bill of costs was given at large in the schedule to the answer, when a reference to the bill of costs delivered would have fully answered the purpose, and it was deemed impertinent. The present is not an instance of gross abuse of this rule of pleading; but I am glad to see the exception taken, and the point brought up, for the opportunity it affords of laying down the rule. I have frequently perceived the pleadings, and particularly the bill, encumbered with a recital in haec verba, of deeds, mortgages, and other documents, which, unless checked, will lead to great oppression of the suitor, and to the re- proach of the Court. Whenever a proper case arises, I shall certainly mark it with animadversion ; and shall en- deavor to enforce, by all suitable means, precision and 92 IMPERTINENCE 93 brevity in pleading. The objection to unnecessary folia, may be taken on the taxation of costs. The ancient rules and orders of the English Court of Chancery, are very explicit, and powerfully monitory on this subject. If any pleading should be found of an iromoderate length, Lord Bacon declared, that both the party and the counsel, under whose hand it passed, should be fined. And Lord Keeper Coventry, with the advice of Sir Julius Caesar, the master of the rolls, in 1635, ordained, that bills, answers, etc., "should not be stuffed with the repe- titions of deeds or writings in haec verba, but the effect and substance of so much of them only as was pertinent and material to be set down, and that in brief and effect- ual terms, &c., and upon any default therein, the party and counsel, under whose hand it passed, should pay the charge of the copy, and be further punished as the case should merit." The same rule was, afterwards, adopted, or re-enacted, by the lords commissioners in 1649, and in Lord Claren- don's Digest or System of Eules (Beame's Orders, 25, 69, 165). But we have a domestic precedent on this point, which is too interesting to be unnoticed. In 1727, Governor Burnet, of the colony of New York, exercising, in council, the powers of a Court of Chancery, appointed five of the most distinguished counsel of the court, as a committee, "to consider and report on the fees and dilatory proceedings in the Court of Chancery, as true and great grievances. ' ' This committee, consist- ing of Archibald Kennedy, Eip Van Dam, Cadwallader Colden, James Alexander, and Abraham Van Horn, re- ported to the counsel a number of abuses in the practice of the Court of Chancery, and the remedy. This report, which is inserted at the end of Bradford's edition of the Colony Laws, is a curious and instructive document ; but my concern, at present, is only with what is termed the 94 WOODS V. MOBBEUi first abuse and remedy. It declares, "as an abnse, the inserting, at too much length, in bills, matters of induce- ment only. Thus, if A. has been entitled to the thing in question, who conveyed it to B., who conveyed it to C, who conveyed it to the plaintiff; after the thing is cer- tainly set forth in A., it is enough to say, he conveyed it to B., and he to C, and he to the plaintiff, as, by the deeds ready to be produced, will appear." No counsel, say they, ought to set their hands to any bill that is unduly long, and if he does, he ought to pay all the charges aris- ing from such needless length. The exception to the master's report, allowing this first exception, is overruled. 2. The same objection applies to the matter forming the ground of the second exception. It was matter argu- mentative, rhetorical, irrelative, and, consequently, im- pertinent. Pleadings should consist of averment, or al- legations of fact, and not of inference and argument. The exception to the report is,- also, overruled; and as the fault of the pleader was of a venial character, I am content that the costs of the exceptions, in this particular case should abide the event of the suit. Order accordingly. 30. WOODS V. MOREELL 1 Johns. Ch. N. T. 103 The Chancellor : The En^sh practice is not to make formal and special exceptions in writing, in the first in- stance, to an answer for scandal or impertinence, as is done for insufficiency; but on a suggestion, by motions, of such matter, the answer is referred to a master to look into; and if he certifies against the exception the plaintiff may except in writing to the report, and specify the particular parts which are scandalous or impertinent; IMPERTINENCE 95 and this reference for impertinence must precede one for insufficiency. I find, however, that a different practice prevails here in this court, and instead of a loose and general suggestion, the party does, in the first instance, what he eventually may be obliged to do under the Eng- lish practice, and the objections to the answer, as well for impertinence as for insufficiency, go at once to the master, and are disposed of together. I do not perceive any strong objection to this mode of practice which ought to induce me to interfere and change it. It may save time; for it admits of but one reference io the master, instead of two; and by reducing the exceptions to writ- ing, and specifying the parts that are deemed imperti- nent, there is greater precision and certainty in the pro- ceeding. With respect to the merit of the exceptions, I would first, generally, observe that from the short experience I have had in this court it appears that much tedious discussion and delay have arisen from what are deemed defective or impertinent parts of an answer. The gen- eral rules on this subject are founded in good sense and sound justice, and they cannot be too well understood nor too strictly enforced ; the neglect of them will always receive disapprobation. If answers are to be made the vehicle of recrimination, or of matter of mere history, or inducement, or scandal, not pertinent to the case, and only useful to excite prejudice, the character of plead- ings in this court would be degraded. And if the defend- ant is not compelled to a full, frank, and explicit dis- closure of everything properly required of him, and resting in his knowledge, information, or belief, one of the most salutary ends of the jurisdiction of this court would be defeated. 1. As to impertinent matter, the answer must not go out of the bill to state that which is not material or rela- vant to the case made out by the bill. Long recitals, di- gressions, stories, conversations, and insinuations tend- 96 WOODS V. MOREEIiL ing to scandal, are of this nature. Facts not material to the decision are impertinent, and, if reproachful, they are scandalous; and perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in is- sue and would be matter proper to be given in evidence between the parties. If, indeed, the plaintiff will put im- pertinent questions, he must take the answers to them, though they be impertinent; but it will depend upon the reason of the thing and the nature of the case, how far a general inquiry will warrant an answer leading to detail. The court will always feel disposed to give the answer a liberal consideration on this point of matter irrelevant, and to consider whether it can have any real and proper influence upon the suit, having regard to the nature of it as made by the bill. Cooper's Treatise, 318; Mitf. 248; Peck v. Peck, Mose- ley, 45; St. John v. St. John, 11 Ves. 526; The case of Smith V. Eeynolds, Moseley, 69, gives us a sample of mat- ter which was at the same time impertinent and scanda- lous. The plaintiff filed his bill to be relieved against a stale bond, and mentioned the fact of a subsequent bond which he had somehow lost and by reason of which he was obliged to sue the defendants in chancery, and had recovered. The defendant in his answer said that he did not believe that the plaintiff had lost the bond last men- tioned, but believed that he had fraudulently concealed or destroyed it; and the chancellor very properly held that the defendant had denied what was not material and what the plaintiff did not require him to answer; and that he had gone out of the way purely to reflect on the plaintiff. 2. With respect to the sufficiency of the answer, the general rule is that to so much of the bill as is material and necessary for the defendant to answer he must speak directly, without evasion, and not by way of negative pregnant. He must not answer the charges merely liter- IMPERTINENCE 97 ally, but he must confess or traverse the substance of each charge positively and with certainty; and particu- lar, precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges. Indeed, as Lord Eldon observed, the policy of the proceedings in this court is that a general denial is not enough; but there must be an answer to the sifting inquiries upon the matter charged. If a fact be charged which is in the defendant's own knowledge, he must answer positively, and not to his remembrance or belief ; and as to facts not within his knowledge he must answer as to his information or belief, and not to his information or hearsay merely, without stating his belief one way or the other. Bohun, Cur. Can. Ill; Wyatt, P. Eeg. 13, 14; 1 Har. Ch. Pr. 302, 303; Mitf. 246, 247; Cooper, 313, 314. 3. In the application of these general principles to the exceptions before me, the task is easy, because, by applying the case to the rule, it will readily be perceived that most of the exceptions are well taken for imperti- nence and for insufficiency. I shall not go into particu- lars. The exceptions allowed are noted, and they, for the most part, speak for themselves. Most of what was said by the defendant Morrell, for instance, concerning the history of a voluntary deed of trust from Sackett to him and others,, was irrelative to the subject-matter of the bill, viz., the fraudulent sale and purchase under the exe- cution; and it is, at the same time, replete with insinua- tions and reflections against the plaintiff. I accordingly allow twenty -five of the exceptions taken to the answer of Morrell, and ten of those taken to the answer of Weller, and nineteen of those taken to the answer of Sleght. The following exceptions to the answer of George Mor- rell are allowed, viz., the 2d, 3d, 6th, 7th, 9th, 11th, 12th, 14th, 16th, 17th, 19th, 21st, 22d, 25th, 26th, 27th, 28th, 29th, 31st, 32d, 33d, 34th, 35th, 36th and 37th. B. P. C— 7 98 WOODS V, MORBELL The following exceptions to the answer of Hiram Wel- ler are allowed, viz., the 2d, 4th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, 14th. The following exceptions to the answer of Solomon Slegt are allowed, viz., the 1st, 2d, 3d, 4th, 7th, 8th, 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 19th 20th, 24th and 25th. The question of costs is reserved. VIII MULTIFARIOUSNESS 31. BACKUS V. BROOKS 189 Fed. 923 PiiATT, District Judge: It would be a tremendous task to bunch in this memorandum the facts which seem to be well pleaded in the bill, and therefore admitted by the demurrer. It is an unusually verbose and compli- cated presentation of facts, and will speak for itself. No abstract which satisfies my mind would help the higher powers, and therefore I refrain from the attempt. At the time the bill was filed an ex parte request was made for a preliminary injunction to prevent the alienation of stock in the Sealshipt Oyster System by either Brooks or the System until final hearing. When the affidavits were read, I was instantly satisfied that such an order was not warranted by the facts presented, which were substantially those found in the bill. There were two sets of plaintiffs and two sets of de- fendants. One of the plaintiffs presented a state of facts which seemed to set forth a wrong which ought to be dealt with in a court of law. The other plaintiffs pre- sented a state of facts which many years before might have appealed to the conscience of a court of equity, if the jwoper parties had come before it; but it struck me that they came too late, and in an improper maimer, and with no very definite idea of what their wrongs were and what party they expected the court to enforce a rem- edy upon. The preliminary injunction was therefore refused, and later came the demurrers, amplifying and defining with accuracy the vague notions which came over me at the beginning. 99 100 BACKUS V. BROOKS I do not know of any equity rule, written or unwritten, which prohibits the defendants from filing such demur- rers as those here presented without first answering the allegations of fraud. Certainly no rule, with even a strained construction put upon it, could affect the rights of the Sealshipt Oyster System. Taking the broadest view possible of the facts and equity rule 32, I cannot accept the dicta found in Johnston v. Mercantile Co. (D. C.) 127 Fed. 845, and Jahn v. Lumber Co. (C. C.) 147 Fed. 631. Those cases were both properly decided on the facts, and the reference to an uncited equity rule was unnecessary. It is probable that in neither case was the matter taken up, except in the most incidental way. Equity rule 32 was not even mentioned. There are two main lines of attack in this biU. One by A. Backus, Jr., & Sons Corporation against the Sealshipt Oyster System, counting on a breach of contract between the plaintiffs and defendant's predecessor, the American Company. The other is by Newton D. and Henry N. Backus, asserting their rights to have certain stock of the System turned over to them in place of stock which they ought to have had in the System's predecessor, the National Company, which followed the American Com- pany. These rights are based entirely upon their owner- ship of stock in the American Company, and are inde pendent and wholly apart from the contract rights whicll the Backus Corporation asserts. The parties are differ- ent and demand different rights. N. D. and H. N. Backus had no interest primarily in the contract, and the Backus Company long ago parted with all right and title to the stock. They not only demand different rights, but one demands a right for which it should go into a law court to seek redress, and the other demands an equitable right about which the facts must have been known to them years ago, and which, if demanded promptly and sus- tained by proof, would have been long since settled. To do anything about it now would work harm to numberless MtJliTIFAEIOUSNESS 101 innocent parties who have become stockholders of the Sealshipt System in entire ignorance of any such story as the one here portrayed. In all this matter the obliga- tions npon the defendant's part arose at different times. The evidence required to establish the separate claims is different, and the kinds of relief demanded differ. When the charge of multifariousness comes up against a bill, I am aware that a court of equity will exercise a large discretion and retain the bill, if possible; but in such a case as the one before us the quagmire is so treacherous and the enveloping forest so dense that I am unable to see any way out of it, if I shall once begin to travel through it. For the reasons faintly outlined, and for many un- touched, the demurrers must be sustained and the bill dismissed, with costs. 32. HAYES v. DAYTON 18 Blatchford 420 Blatchfobd, J.: The bill in this case states that the plaintiff invented certain "improvements in ventilators, skylights, skylight turrets, conservatories and other glazed structures and ventilating louvres," described in "several letters patent and re-issues thereof." It then avers that he obtained six several patents, Nos. 94,- 203 and 100,143, and 106,157, and 112,594, and 143,149, and 143,153; that he obtained re-issues of all of them, the re-issues being six in number, one of each (though it does not appear of which original any particular re- issue is the re-issue), the re-issues being number 8,597 and 8,764, and 8,675, and 8,676, and 8,688, and 8,689; and that, since the re-issues, the defendant has, without au- thority, infringed said several re-issues, and made, used and sold said inventions. The bill interrogates the de- 102 HATTES V. DAYTON fendant as to whether he has made and sold "ventilators, skylights, skylight turrets, conservatories and other glazed structures and ventilating louvres, and embraced within any or either" of the said "several letters pat- ent and re-issued letters patent;" also, in four several questions, as to whether he has made, sold or used what is claimed in each one of the four claims in re-issue No. 8,597, quoting it; and the like as to each one of fifteen claims in re-issue No. 8,674, and of seven claims in re- issue No. 8,675, and of two claims in re-issue No. 8,676, and of seven claims in re-issue No. 8,688, and of (three claims in re-issue No. 8,689, there being thirty-eight sev- eral claims thus inquired about. The bill prays for a recovery of the profits and damages from the said un- lawful making, using and sellihg, by the defendants, of the said "improvements in ventilators, skylights, sky- light turrets, conservatories and other glazed structures and ventilating louvres." The defendant demurs to the whole bill, and in the demurrer shows, for cause of demurrer, "that it appears by the said bill that it is exhibited against this defend- ant for several and distinct matters and causes, in many whereof, as appears by said bill, the defendant is not in any manner interested or concerned, and which said sev- eral matters and causes are distinct and separate one from the other, and are not alleged in said bill to be con- jointly infringed by said defendant. . . . By reason of the distinct matters therein contained, the complain- ant 's bill is drawn out to considerable length, and the de- fendant is compelled to take a copy of the whole thereof, and, by joining distinct matters together, which do not depend on each other, in the said bill, the pleadings, or- derp and proceedings will, in the progress of the said suit, be intricate and prolix, and the defendant be put to unnecessary charges in taking copies of the same." The defendant, ' ' not waiving his said demiirrer, but rely- MUIiTIFABIOTJSNESS 103 ing thereon," has put in, simultaneously, an answer to the whole hill. This demurrer does not use the word "multifarious." A bill is multifarious when it improperly unites in one bill, against one defendant, several matters perfectly distinct and unconnected, or when it demands several matters of a distinct and independent nature against several defendants in the same bill. The reason for the first case is that the defendant would be compelled to unite, in his answer and defense, different matters, wholly unconnected with each other, and thus the proofs applicable to each would be apt to be confounded with each other, and delays would be occasioned by waiting for the proofs respecting one of the matters, when the others might be fully ripe for hearing. The reason of the second case is, that each defendant would have an unnecessary burden of costs by the statement in the pleadings of the several claims of the other defendants, with which he has no connection. Story's Eq. PI., sec. 271. The demurrer in this case is intended to be a de- murrer for misjoining causes of suit against one defend- ant. Yet much of it is inapphcable to such a case, and is taken from a form which applies only to the case of a demurrer by one of two or more defendants who has no concern with causes of action stated against the other defendants, such a demurrer being really a demurrer for a misjoinder of parties. Story's Eq. PI., sec. 530, and note 3, where is to be found the form improperly used in this case. Yet there seems to be enough left, after re- jecting as surplusage the improper and unnecessary part, to raise the point intended. The demurrer, in re- gard to misjoining causes of suit against the defendant, substantially avers that the bill is brought for several matters and causes which are separate and distinct one from the other, and are not alleged to be conjointly in- fringed by the defendant. This means that the patents sued on are distinct one from the other, and that they are 104 HATES V. DAYTON not alleged to be conjointly infringed in any one article which the defendant has made or used or sold. This averment of the demurrer is true. Where there is a joinder of distinct claims between the same parties, it has never been held, as a general proposition, that they cannot be united, and that the bill is, of course, demurrable for that cause alone. Nor is there any positive, inflexible rule as to what, in the sense of courts of equity, constitutes a fatal multifariousness on demurrer. A sound discretion is always exercised in determining whether the subject-matters of the suit are properly joined or not. It is not very easy, a priori, to say exactly what is or what ought to be the true line regu- lating the course of pleading on this point. All that can be done in each particular case as it arises is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or to the other class where it is held not to be fatal. In new cases the court is governed by those analogies which seem best founded in general convenience, and will best promote the due administration of justice, without multiplying unnec- essary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. Story's Eq. PI., sees. 531, 539; Horman Patent Mfg. Co. V. Brooklyn City R. E. Co., 15 Blatch. 444. We are not without cases on this subject, in suits on patents in this country. In Nourse v. Allen, 4 Blatch. 376, in 1859, before Mr. Justive Nelson, a bill on four pat- ents were held good on demurrer, where it alleged that the machine used contained all the improvements in all the patents. The court thought that the convenience of both parties as well as a saving of expense in the litiga- tion seemed to be consulted in embracing all the patents in one suit in such a case ; and that, although the defenses as respected the several improvements might be differ- ent and unconnected, yet the patents were connected with each other in each infringing machine. MULTIFARIOUSNESS 105 In Nellis v. McLanahan, 6 Fish. Pat. Cas. 286, in 1873, before Judge McKennan, it was held that where a suit in equity is brought for the infringement of several pat- ents for different improvements, not necessarily embod- ied in the construction and operation of any one ma- chine, the bill must contain an exphcit averment that the infringing machines contain all the improvements em- braced in the several patents, or it will be held bad for multifariousness on demurrer. In Gillespie v. Cummings, 3 Saw. 259, in 1874, before Judge Sawyer, the bill was founded on two patents for the manufacture of brooms. There was a demurrer on the ground of the joinder of two separate and distinct causes of action. It appearing by the bill that the defend- ant's broom, in infringing, must be an infringement of both of the patents, and that there was, therefore, a com- mon point to be litigated, and much of the testimony must, from the nature of things, be applicable to both of the patents, the bill was held good. In Horman Patent Mfg. Co. v. Brooklyn City E. R. Co., 15 Blatch. 444, in 1879, before Judge Benedict, a bill in equity on two patents alleged that the defendant was using machines containing in one and the same appa- ratus the inventions secured by each of the two patents. It was demurred to on the ground that it did not allege that the devices were used conjointly or connected to- gether in any one apparatus, but the demurrer was over- ruled. The court held that, as the bill did not show the controversy to be of such a character that prejudice to the defendant would result from the joinder in one action of the causes of action joined, the bill must be sustained. The court was of opinion that, in the absence of any other fact, the circumstance that the two transactions com- plained of were the use, in a single machine, of two pat- ented devices connected with the mechanism of the ma- chine, warranted the inference that no prejudice would 106 HAYES V. DAYTON result to the defendant , from the joinder of the two transactions. The decisions above cited all tend in one direction. The decision in Case v. Redfield, 4 McLean, 526, if lim- ited, as it apparently ought to be, to the case of an original patent, and of another patent granted in terms as an improvement on the original patent, is not like the present case as shown by the bill. It is a case difficult to understand, and if it were like the present case in its facts, whatever there is in the decision of it tending to sustain the bill in this case is opposed to all the other cases on the subject. The present case appears to be a suit on thirty-eight claims in six different patents. There is nothing to show that any two or more of the patents are in fact, or are capable of being used in making a single structure, much less that the defendant has so used them. So far as the bill shows, the causes of action are as distinct as the pat- ents. The patents are not shown to be connected with each other in any infringing machine, or to be used at the same time in any infringing machine. The contro- versy in this suit appears, from the bill, to be of such a character that prejudice will result to the defendant from being called upon to defend in one suit against thirty-eight claims in six different patents, no two of which claims, so far as the bill shows to the contrary, are employed in any one machine. On this ground the bill must be held bad. The plaintiff contends that the putting in of an answer to the whole bill is a waiver of the demurrer. Rule 32 in equity permits a demurrer to a part of a bill, a pl6a to a part, and an answer as to the residue. If, impliedly, that rule forbids a demurrer to the whole bill, and at the same time an answer to the whole bill, the plaintiff's remedy is by moving to strike out either the answer or the de- murrer, or to compel the defendant to elect which he will abide by. By going to argument on the demurrer the MtTLTlFARlOUSNESS 107 plaintiff waives the benefit of the objection now taken, if otherwise he would have it. Moreover, rule 37 in equity provides that "no demurrer or plea shall be held bad and overruled upon argument, only because the an- swer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea." This rule was first made in March, 1842, to take effect August 1, 1842. 17 Pet. Ixvii. There was no such rule in the prior rules of March, 1822 (7 Wheat, v), al- though rule 18 in such prior rules was the same as the above present rule 32. Under the rules of 1822, not only had it been held (Ferguson v. O'Harra, Pet. C. C. 493) that, where there was a plea going to the whole bill and also an answer to the whole bill, the court would, on the plaintiff's motion, disallow the plea, on the ground of its being overruled by the answer, but Judge Story had held in 1840, in Stearns v. Page, 1 Story 204, that where a plea stated a ground why the defendant should not go into a full defense, and yet the defendant answered putting in a full defense, it would be held, on the argu- ment of the plea, that the answer overruled the plea. Then rule 37 was made. It applies to the present case. The demurrer is allowed, with costs. IX LACHES 33. SULLIVAN v. RAILROAD CO. 94 U. 8. 806 The defence of the Statute of Limitations is not set up by plea nor in the answers. "We cannot, therefore, con- sider the case in that aspect. Wilson v. Anthony, 19 Ark. 16. Me. Jxjsticb Swatne: To let in the defence that the claim is stale, and that the bill cannot, therefore, be sup- ported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief. Every case is governed chiefly by its own cir- cumstances; sometimes the analogy of the Statute of Limitations is applied; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is com- petent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accord- ingly. Wilson V. Anthony, 19 Barber (Ark.), 16; Taylor v. Adams, 14 id. 62; Johnson v. Johnson, 5 Ala. 90; Ferson v. Sanger, 2 Ware, 256 ; Fisher v. Boody, 1 Curtis, 219; Cholinondly v. Clinton, 2 Jac. & Walk. 141 ; 2 Story's Eq., sect. 1520a. "A court of equity, which is never active in giving relief against conscience or public convenience, has always refused its aid to stale demands where a party has 108 LACHES 109 slept upon his rights, and acquiesced for a great leng-th of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced ; and, therefore, from the beginning of this jurisdiction there was always a limitation to suits in this court." Smith V. Clay, Ambler, 645. If the complainants had severally sought to enforce their claim in an action at law, ex delicto or ex contractu, the bar of the Statute of Limitations would have been complete after the lapse of six years. Rev. Stat, of 1857, p. 510. This bill was filed on the 21st of February, 1871. The complainants were supine and silent for more than seventeen years. In the meantime, the Kennebec and Portland company became hopelessly and finally insol- vent, and its affairs a wreck. Proceedings were instituted to foreclose the second mortgage, and brought to a close. The company lost all its property, and has since existed only in name. A new corporation has come into existence, and acquired and owns all the property and effects lost by the old one. This transfer occurred more than seven years before the first step was taken in the present case. This long delay thus characterized is unaccounted for. The facts are amply sufficient to warrant the application of the rule of laches, and to give it the fullest effect. Decree affirmed. Note: Part of above opinion, not bearing on Equity Pleading and Practice, omitted. z DEMURRERS 34. LEGGETT ET AL. v. BENNETT 48 Ala. 380 Justice Sakpold: The appellants, as complainants, alleged that as the heirs of their father, Marlin Nail, they were entitled to certain property of which he died seized and possessed; and to certain other property which was ascertained, after his death, to be due to his estate, by a decree of the probate court, on the final set- tlement and distribution of the estate of his father, Wil- liam Nail. That his administrators, Floyd Nail, who was also the acting administrator of William Nail's estate, was directed by the probate court to retain in his hands this last mentioned property, as that of his estate, which he did. The administrators of William Nail, and the adminis- trator of Marlin Nail having died insolvent, as is charged, the bill sought the recovery of all the property above mentioned from their respective sureties. Those who survive, and the representatives of those \^^ho have died, were made defendants. The bill was demurred to for want of equity, misjoinder of parties defendant, and multifariousness. It was dismissed on demurrer without prejudice. Of these defendants, Floyd Nail, as the administrator of Marlin Nail, and his sureties, were alone responsible for that portion of the property which his intestate died seized and possessed of. If, as the bill alleges, there was a final settlement and distribution of the estate of Wil- liam Nail, and the distributive share of Marlin therein became chargeable to Floyd Nail, as his administrator, 110 DBMUBRERS 111 then he and his sureties were alone responsible for it; and no liability is shown against the sureties for the ad- ministration of William Nail's estate. There was a mis- joinder of parties defendant. The misjoinder of parties as defendants can only be taken advantage of by those who should not have been made parties. Story's Eq. Plead., sec. 544; Horton v. Sledge, 29 Ala. 478. The effect of the objection, when sustained, is the dismissal of the bill as to them. The biU is not multifarious for containing two distinct sub- ject matters. To constitute multifariousness in this re- spect, both subjects must be capable of redress by a court of equity. Story's Eq. Plead., sec. 283. There is simply no case against the sureties for the administration of the estate of William Nail. The answers of the sureties for the administration of Marlin Nail's estate developed, that after the death of their principal, the administration was committed to Thomas Armstrong, and that Thomas Gray became the administrator of Floyd Nail, and settled his administra- tion of Marlin Nail's estate in the probate court, where a decree was rendered against him which he paid to the said Armstrong. These facts were shown by a transcript of the record, and the receipt of Armstrong, appended to the answers as exhibits. After the court had sustained the demurrers to the original bill, the complainants amended it by striking out the sureties of the administrators of William Nail as defendants; making Gray and Armstrong defendants iu their official capacities, and appending an exhibit of the facts above stated, except the receipt of Armstrong to Gray, and by praying for a settlement of Marlin Nail's estate. The sureties of Floyd Nail assigned like grounds of demurrer to the amended bill, which the court sus- tained. The objection of misjoinder of parties defend- ant was well taken, because, now, the bill averred that Gray, having received all the assets with which his intes- 112 LAW V. WAKE tate was chargeable, had settled Floyd Nail's adminis- tration of Marlin Nail's estate in the probate court, and had become personally responsible for the amount of the decree rendered against him, without an averment that he was insolvent, or that there was an error in the settlement, or of any cause why the complainants still had recourse against the sureties of Floyd Nail. The bill was now divested of all its original defend- ants, and had become a new suit against new parties. It could not be maintained as such. Amendments to a bill must be consistent with the original. 1 Dan. Ch. Plead & Prac, m. p. 454, note 2; Lyon v. Tallmadge, 1 Johns. Ch. Eep. 184. The decree is affirmed. 35. LAW v. WARE 238 III. 360 Chief Justice Cartwkight : Robert H. Law, appellee, filed his bill in equity in the superior court of Cook county against Elisha C. Ware, appellant, for an ac- counting of the profits of a purchase and sale by said parties of a tract of land and to compel appellant to pay over a balance claimed to be due, and also to compel appellant to account for and pay over commissions re- ceived, while acting as agent for appellee, from the other party to an exchange of real estate. The superior court approved the report of a special commissioner and en- tered a money decree against appellant for $5,112.48, with interest from the date of the commissioner's report. Appellant removed the cause by appeal to the appellate court for the First District, and the branch of that court reversed the decree and remahded the cause to the superior court, with directions to enter a decree in favor of appellee for $3,112.48, with interest from the date of DEMUKRERS 113 the commissioner's report to the date of such decree. A further appeal was prosecuted to this court. It is first contended that the superior court erred in granting any rehef, for the reason that the complainant had a complete remedy at law. The defendant did not demur to the bill, but at the conclusion of his answer prayed the same right and advantage of the answer as if he had especially pleaded or demurred to the bill. If the subject matter of a bill of complaint is wholly for- eign to the jurisdiction of a court of chancery, such as a claim of damages for slander, assault and battery or per- sonal injury the court is incompetent to grant the relief sought for, and it will be denied although the defendant has submitted himself to the jurisdiction of the court ; but if the subject matter belongs to that class of which a court will take jurisdiction when the facts create some equita- ble right or the relation of the parties renders the exer- cise of such jurisdiction proper, an objection that there is an adequate remedy at law should be taken at the earli- est opportunity. (Stout v. Cook, 41 111. 447.) The ob- jection is properly taken by demurrer, and if so taken the demurrer may be general for want of equity. All mat- ters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether especially pointed out in the demurrer or not, and the objection may be called to the attention of the court on the argument of the demurrer. (Winkler v. Winkler, 40 111. 179; Wangelin v. Goe, 50 id. 459; Gage v. Abbott, 99 id. 366; Gage V. Griffin, 103 id. 41; Wetherell v. Eberle, 123 id. 666.) If the objection is not made by demurrer the de- fendant may still insist in his answer that the case made by the bill is not brought within the class of cases in which courts of equity assume jurisdiction for the reason that the complainant has an adequate remedy at law; (1 Ency. of PI. & Pr. 883) ; but if the court is able to grant the relief asked for and defendant submits himself to the jurisdiction of the court without specifically point- B. p. c— 8 114 DILLON V. BARNARD ing out the objection in the answer it will be regarded as waived. An objection that the court ought not to as- sume jurisdiction because there is an adequate remedy at law comes too late after filing an answer in which the objection is not affirmatively set out and rehed on. (Nelson v. First Nat. Bank of Chicago, 48 111. 36; Ryan V. Duncan, 88 id. 144 ; Chicago Public Stock Exchange v. McClaughry, 148 id. 372; Kaufman v. Weiner, 169 id. 596 ; Black v. Miller, 173 id. 489.) Although defendant in his answer claimed the same right and advantage as if he had especially demurred to the bill, he did not point out or rely upon the objection now made, and the court being competent to grant the reUef asked for, the ob- jection comes too late and will not be considered. (Note : Part of opinion not in point, omitted.) 36. DILLON v. BAENARD 88 U. 8. (21 Wall.) 430 Justice Field: The plaintiff has brought the pres- ent suit against the new trustees under the mortgage, and the assignee in bankruptcy, to charge the property held by them with the amount- of his demand remaining unpaid for work done under his contract with the com- pany. In support of his pretension he insists that un- der the indenture his contract, when it obtained the as- sent of two of the trustees, became a charge upon the moneys received by the corporation from the sale of the bonds ; that the trustees under the mortgage and the cor- poration thereupon became trustees for his benefit of the proceeds thus received, and were bound to apply them to pay his debt; that by their failure to have the proceeds thus applied, and by expending them in acquiring new property and improving that already possessed, the charge upon the proceeds became attached to the prop- DEMURRERS 115 erty in the hands of the trustees thus added to and im- proved; and that this charge is entitled to preference over the lien of the bondholders. The positions thus asserted must find their support, if at all, in the provisions of the indenture of mortgage. If not sustained there they are not sustained anywhere. The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instrument, and the obligations they im- posed upon the corporation and the trustees, and the rights they conferred upon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal inference, conclusions of law upon the construction of the indenture, and are open to con- tention, a copy of the instrument itself being annexed to the bill, and, therefore, before the court for inspec- tion. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument how- ever clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms ; nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposi- tion of the demurrer. This is not the case of a bill to set aside or reform the contract as not expressing the actual intention of the parties. It is a case where the conten- tion arises solely upon the meaning of the indenture in its bearing upon the contract, and that must be ascertained by applying to its language the ordinary rules of inter- pretation. (Lea V. Eobeson, 12 Gray 280.) Looking, then, at the indenture, we find that the only 116 DILLON V. BARNARD clause upon which the plaintiff relies to sustain his po- sitions is the one providing that the expenditure of all sums of money received from the sale of the bonds shall be made with the approval of at least one of the trustees, and that his assent shall be necessary to aU con- tracts made by the corporation "before the same shall be a charge upon any of the sums" thus received. It is contended that the term charge, as here used, is synony- mous with the term lien, and that the whole clause im- plies that when a contract has thus received the written assent of one of the trustees, it shall be, to the extent of the obligation created, a specific lien upon the moneys obtained. But this meaning of the term is not in har- mony with its immediate context, or the object of the in- denture. The instrument was executed to secure the pay- ment of the mortgage bonds; it so declares on its face. It nowhere indicates any design to secure the contract- ors; its language is, "that for the better securing and more sure payment of the sums of money mentioned in the said mortgage bonds, and each of them," the inden- ture is executed. And the clause in question was in- tended to increase this security by preventing a waste- ful expenditure of the funds of the corporation; it is, in fact, an agreement on its part that the funds received from the bonds shall only be used with the approval of one of the trustees, and without his written assent no contracts shall be payable out of those funds. The term charge is not used in any technical sense, as importing a lien upon the funds, but in the general acceptation of a claim that may be payable out of them. The contract- ors are not parties to the indenture, and are not entitled to ciaim as against those parties any benefit under its provisions, except that upon the assent being given to their contracts the use of the moneys for their payment is permissible. They are, so far as the agreement is con- cerned, strangers to the instrument. The written assent DEMURRERS 117 to contracts on the part of one of the trustees, was not required for their protection, but as an additional safe- guard to the bondholders against an improvident use of the funds by the corporation. The clause is one of a series of covenants on the part of the corporation with the trustees, intended to secure the application of the funds received to the purposes contemplated at the time the indenture was executed, — the retirement of the exist- ing indebtedness of the corporation, the completion of its 'road, and the laying of a third rail. And full effect is given to the language of the clause in question by this interpretation. The present case, notwithstanding the largeness of the plaintiff's demand, is not different in its essential fea- tures from those cases of daily occurrence, where the expectation of a contractor, that funds of his employer derived from specific sources will be devoted to the pay- ment of his services or materials, is disappointed. Such expectation, however reasonable, founded even upon the express promise of the employer that the funds shall be thus devoted, of itself avails nothing in favor of the contractor. Before there can arise any lien on the funds of the employer, there must be, in addition to such ex- press promise, upon which the contractor rehes, some act of appropriation on the part of the employer depriving himself of the control of the funds, and conferring upon the contractor the right to have them applied to his pay- ment when the services are rendered or the materials are furnished. There must be a relinquishment by the employer of the right of dominion over the funds, so that without his aid or consent the contractor can enforce their application to his payment when his contract is completed. Eogers v. Hosack, 18 Wendell 319; Dick- enson V. PhilUps, 1 Barbour 454; Hoyt v. Story, 3 id. 262; Hall v. Jackson, 20 Pickering 197; Christmas v. Griswold, 8 Ohio N. S. 558; Christmas v. Sussell, 14 118 DILLON V. BAENAED Wallace 70; Malcolm v. Scott, 3 Hare 46. In the case at bar there is no circumstance impairing the do- minion of the corporation over the funds received from the bonds; there is only its covenant with the trustees that the expenditure of those funds shall be made with the approval of one of them, and that one of them shall give his written assent to its contracts be- fore they are paid out of such funds. There is no cove- nant with the contractor of any kind in the instrument, and no right is conferred upon him to interfere in any disposition which the corporation may see fit to make of its moneys. The essential elements are wanting in the transaction between him and the corporation to give him any lien upon its funds. No right, therefore, exists in him to pursue such funds into other property upon which they have been expended. The case, as already intimated, is on his part one of simple disappointed ex- pectation, against which misfortune equity furnishes no relief. The plaintiff made his contract with knowledge of the existing mortgage and of the declaration which it con- tains, that it is to be the "first and only lien on the prop- erty and franchises of the company," and that it cov- ered not only property then held by the company, but would also cover all property which might thereafter be acquired. If he had reason to doubt the future solvency of the corporation, or that it would apply the funds it obtained from its bonds to the payment of his work, he should have provided against such a contingency in ad- vance. He cannot now be heard to complain that his expectation of receiving for his work funds not specific- ally appropriated for his benefit has failed, and to insist that, therefore, he ought to be allowed to follow those funds into property upon which other parties should have by the terms of a previous contract the first and only lien. Decree affirmed. DEMURRERS 119 37. DAY V. COLE 56 Mich. 295 CooLEY, C. J.: This case comes before tlie court on demurrer to a supplemental bill of complaint. The cir- cuit court overruled the demurrer, and the parties demur- ring appealed. The original bill was filed September 12, 1881, against a large number of defendants, the leading purpose being to obtain payment of the purchase moneys on a certain contract for the sale and conveyance of lands, made between the Blendon Lumber Company, as vendor, and the defendant Edward Cole, as vendee, and bearing date September 1, 1866. The case on its facts was exceedingly comphcated. There were two collateral contracts as- signed as security for the principal contract. The mem- bers of the lumber company, which was a partnership, were all dead, and there had been transfers of interests by personal representatives and heirs. On the hearing on the original bill, the court was satisfied that all parties in interest were not before the court, and had directed the case to stand over for the bringing in of other de- fendants. This was done by the supplemental bill, and several of the parties brought in demurred for want of equity. 1. One ground assigned for demurrer in the brief for defendants is that the bill prays for a forfeiture, which equity will not grant. Crane v. Dwyer, 9 Mich. 350; "Wing V. Railey, 14 Mich. 83. But this is not the correct view to take of the bill. It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full power to provide for the protection of all equities, and to order a sale for the satisfaction of moneys due, if necessary. Fitzhugh v. Maxwell, 34 Mich. 138. 2. Another ground of objection to the bill is that it 120 DAT V. COLE appears thereby that complainant is not owner of the title to all the lands contracted to be sold, but a part of them are owned by the defendant Jordan, who should have been joined as complainant. But if this objection is well grounded in fact, it is not good in law as a ground for general demurrer. If all the parties in interest are before the court it is sufficient; and they are before the court, either as complainants or defendants, if the allega- tions of the bill are true, as the demurrer admits them to be. 3. The claim upon the contract is said to have be,come, by the great lapse of time, a stale claim ; but the remedy upon it does not appear, in view of the recitals in the bill of the dealings of the parties, to have become barred by the statute of limitations or any rule applied by analogy. Besides, complainant, by his bill, claims to rep- resent the title ; and lapse of time would seem to tell rather against the purchaser, who has failed to demand and obtain a conveyance, than against the seller. 4. Complainant claims his rights under the contract through an assignment by executors, whose authority was derived through a will made and probated in another state; and the assignment is said to be ineffectual, not only because made by foreign executors, but also because it is not shown by the bill that the condition of the estate was such as to give the executors power to sell to the exclusion of the heirs. The first ground is without merit, because it appears that letters based upon the foreign probate were issued in this state; and the second, if of any force, might perhaps be ground for special demurrer, but not for general demurrer for want of equity. Mere technical defects in the statement of the case, which might be cured by amendment if specifically pointed out, will be overlooked on general demurrer, and the court will examine the bill only so far as to see that the sub- stance of a good case is set out, even though it be inarti- ficially, or with technical faults and deficiencies. Clark DEMURRERS 121 V. Davis, Har. Ch. 227; Farwell v. Johnston, 34 Mich. 342. The general demurrer challenges the equities, and not faults of pleading merely. The order overruling the demurrer is affirmed, and the record remanded, with leave to answer under the rules. Campbell and Sherwood, JJ. concurred. Champhn, J. did not sit in this case. 38. HARTZELL v. BRASH ET AL. 55 Sou. Rep. (Fla.) 401 Pabkhill, J. : The appellant filed a bill of complaint, as amended, in the circuit court in and for Hillsborough county, against the appellees, praying that accounting may be had between the complainant and defendants as to the amounts advanced by each of them, and that the assets of the business may be used to pay the indebted- ness of the same, and the moneys advanced by complain- ant on account of the same, and that a receiver may be appointed to take charge of the assets of the business, collect the outstanding accounts, convert the assets into cash, and hold the same pending the further order of the court, and that the defendants be restrained from receiving the mail or indorsing or concerting into money any checks, drafts, etc., until further order of the court. The chancellor granted a temporary order restraining the defendants, or either of them, from collecting its debts, or indorsing its checks, or disposing of its assets; and sustained a demurrer to the bill. Upon motion of de- fendants, the bill of complaint was dismissed, and the temporary restraining order was dissolved, and from this order and decree the complainants appealed. The assignments allege error in the sustaining of the demurrer to the bill of complaint, granting the motion 122 COCHRANE V. ADAMS to dissolve the injunction, and the holding there was no equity in the bill. (1) A general demurrer to the bill, as for want of equity, will be overruled, if there is any ground of equit- able relief stated in the bill, even if there are any number of grounds of special demurrer. Thompson v. Maxwell, 16 Fla. 773 ; Herrin v. Brown, 44 Fla. 782 ; 33 South. 522 ; 103 Am. St. Rep. 182. (2) The practice of moving to dismiss bills for want of equity does not obtain in this state. Hull v. Burr et al, 55 South. 852, decided at this term. We think the bill contained equity. The relation of the complainant to the defendants was not that of a creditor, as is contended, but of partnership. The con- tract between the parties provided: "The purpose of this agreement is for a mutual profit of the enterprise, that a strict account shall be kept by the party of the second part of the entire full amount required in manu- facturing the goods, and after the goods are sold and collection of said sales is made the profit be divided in equal amounts between both the party of the first part and party of the second part. ' ' The decree and order appealed from are reversed. 39. COCHRANE v. ADAMS 50 Mich. 17 Campbell, J. : This case was heard below, in the cir- cuit court for the county of Midland in chancery, on a general demurrer for want of equity and the bill was dis- missed. As on such a demurrer the only question is whether there is any equity whatever in the bill, we must limit ourselves to that inquiry, without speculating on the general merits or facts not actually before us. The bill sets up — first, an agreement with complain- DEMURREES 123 ant, made in August, 1871, whereby it was in substance provided that the firm of Brooks & Adams of Detroit, consisting of Nathaniel W. Brooks and defendant Adams, would advance money enough to pay for a section of land described and for lumbering it, or so much as the parties should consider propter and advisable to lumber during the winter of 1871-2. Complainant was to allow interest on the advances and Brooks & Adams were to have a lien for these until paid, and to have half the logs and half the profits after all such indebtedness was paid, and to have a preemptive right to take complainant's logs at market price whenever he wished to sell his interest. The title to land and timber was to be taken in the name of Brooks & Adams; complainant's services in looking after the lumbering were to be gratuitous. It then sets out the steps taken and moneys paid or contracted for the land. It also shows that being unable to find any other competent person to do the lumbering, it was agreed that complainant should cut and deliver the lumber in the boom limits of the Tittabawassee Boom Company at $4 a thousand, and that this was done in 1871, 1872 and 1873, to 'the amount of 6 millions, some being cut on the section referred to and some on other lands under the same terms and agreement. These other lands and the time of purchase are set forth. In September, 1872, and subsequent to these purchases. Brooks died, and defendant Caroline Brooks was his sole legatee, and the business was continued by complainant as before, she taking her husband's place in the busi- ness, and money was advanced and services rendered in the same manner as during Brooks' life. In January, 1873, Adams sold out to Mrs. Brooks, and complainant continued the work until the spring of 1873, when he had delivered six millions of logs as before men- tioned. In the f aU of 1874, complainant having his camps, roads and other preparations made and a considerable amount 124 COCHEANK V. ADAMS of logs remaining uncut, Mrs. Brooks, by Hotchkiss, her agent, refused to permit him to do any more lumbering. Hotchkiss and Mrs. Brooks made a partnership arrange- ment together and lumbered the lands, and then sold them to one McKeary in 1877. The bill also sets out in considerable fullness of detail the pecuniary items of advances and values of logs, but not in all cases the particular defendants who made the payments and advances, which he cannot state definitely. He also charges that logs were taken without his consent and sawed up by defendants. This averment covers all of the defendants. He asks for an accounting and pay- ment of balances. The defense as made on the argument is that the remedy is at law for the amounts averred, and that the case was not one of partnership. It is certainly consistent with the bill that there was no partnership in the strict sense of the term. But it is equally certain that if the bill is true, Brooks & Adams became trustees for complainant of land and timber, and that Mrs. Brooks and Hotchkiss succeeded them in some portion of that trust. Whatever may be the facts the bill does not show any such full or final accounting as would terminate the relations of the parties and leave him only a remedy for the balance ascertained. Under the theory of the bill some trust property has been dis- posed of contrary to complainant's rights. The right to an accounting in equity is incident to most trust relations, and is not cut off by a waiver of an answer under oath. Unless it is clear that complainant is already fully informed, he has a right to the informa- tion and the accounting. The bill, while it does contain somewhat full averments of particular items of money, does not show all that complainant claims, as thus ascer- tained, and does not show the responsibility of the sev- eral defendants — as distinct, one from the other — for these several claims. As the case stands the defendants DEMURRERS 125 have all been more or less connected directly or by succes- sion with, the trusts, and it cannot be determined, there- fore, of necessity, that there has been any discharge by lapse of time. We do not propose at this stage of the cause to discriminate between the various classes or items of claims, because the only question before us is whether the bill contains any equities whatever. We think it does make out a sufficient case to call for an answer and to admit proofs, and that it does not appear on the face of the bill that complainant should be confined to a remedy at law. The decree must be reversed with costs, and defend- ants must answer. The other justices concurred. XI FLEAS 40. RADFORD v. FOLSOM 14 Fed. Rep. 97 Shikas, D. J. : The doctrine is now well settled that an action pending in a foreign jurisdiction cannot be pleaded in abatement of an action co mm enced in a do- mestic forum, even if there be identity of parties, of subject-matter, and of relief sought. Smith v. Lathrop, 44 Pa. St. 326; Bowne v. Joy, 9 Johns. 221; Allen v. Watt, 69 111. 655; Insurance Co. v. Brune's Assignee, 96 U. S. 588 ; Stanton v. Embrey, 93 U. S. 548. It is equally well settled that at law the pendency of a former action between the same parties, for the same cause and relief, in a court of the state in which the second action has been brought, will be cause of abatement if pleaded in the second action. Insurance Co. v. Brune's Assignee, 96 U. S. 588. In equity, the general rule is the same. Story's Eq. PI., sees. 736-741. In Insurance Co. v. Brune's Assignee, 96 U. S. 588, it is held that "the rule in equity is analogous to the rule at law," and the statements of Lord Hardwicke in Foster v. Vassall, 3 Atk. 587, is quoted approvingly, to-wit, that "the general rule of courts of equity with regard to pleas is the same as in courts of law, (but exercised with a more liberal discre- tion." The case of Insurance Co. v. Brune's Assignee further states the rule to be that "a bill in equity pending in a foreign jurisdiction has no effect upon an action at law for the same cause in a domestic forum, even when pleaded in abatement;" and further, "it has no effect 126 PL.EAS 127 when pleaded to another bill in equity;" that is to say, a bill pending in a foreign forum will not, if pleaded, abate a bill pending in a domestic forum. The reasons usually assigned in support of this doc- trine are that the court of the one state or county cannot judicially know whether the rights of the plaintiff are fully recognized or protected in such foreign state or county, nor whether the plaintiff can enforce to full sat- isfaction any judgment he may obtain in the foreign tri- bunal ; and further, that a court will not compel a plain- tiff to seek his remedy in a foreign forum; or, as it is said by the supreme court of Connecticut in Hatch v. Spofford, 22 Conn. 485: "That country is undutiful and unfaithful to its citizens which sends them out of its jurisdiction to seek justice elsewhere." None of these cases, however, meet the exact point presented by the plea interposed in the case now under consideration ; for in all of them it will be found that the proceedings were pending in the courts of different states or circuits, whereas in this case the two proceedings are pending within the same state, but the one in the state and the . other in the federal court. We do not find that this ques- tion has ever been finally settled by the supreme court of the United States, nor by the circuit court for this cir- cuit. In the case of Brooks v. Mills Co., 4 Dill. 524, is found a full and able discussion of the question in the opinion of Judge Love, both upon principle and authority, with a review of the decision of Mr. Justice Clifford in Lor- ing V. Marsh, 2 Cliff. 322; and the evils resulting from permitting parties to litigate the same subject-matter in two courts exercising judicial power within the same ter- ritorial limits, are very clearly and forcibly shown ; and the conclusion is reached that "it would seem most rational and just that a plea in abatement should be al- lowed in order to avert consequences so mischievous." The judgment of the court, however, in that cause was 128 RADFORD V. POLSOM placed upon another ground; the plea iu abatement be- ing overruled for the reason that it appeared upon the face of the plea that the parties to the suit in the state court were not the same as the parties to the bill in the United States court, and the question now before the court, though discussed, was not authoritatively deter- mined. To the report of this cause in 4 Dill, is attached a full note by the learned reporter, citing the leading cases on the general question; and it is therein stated that "it is clear that the foregoing cases do not go to the length of holding that the pendency of a prior suit in a state court is not a valid plea in abatement to a suit for the same cause, and between the same parties to an ac- tion, in a United States court sitting in the same state;" and the reporter further states that Mr. Justice Miller, in a case in the Minnesota circuit, "intimated his in- clination to the opinion that where the parties are iden- tical, and the scope of the subject-matter equally so, the pendency of a prior suit in the state court, within the territorial limits of the district where the second suit is brought in the federal court, may be properly pleaded in abatement, or, at all events, will operate to suspend the action in the latter;" but, as we understand the state- ment of the reporter, this was not decided or ruled in the cause, so that, as already stated, the question remains an open one. As authorities bearing upon the question more or less directly, see Earl v. Raymond, 4 McLean 233 ; U. S. V. Dewey, 6 Bliss. 502 ; Lawrence v. Eeming- ton, id. 44; Smith v. Atlantic F. Ins. Co., 22 N. H, 21. In this condition of the authorities, what is the con- clusion that should be reached from a consideration of the reasons upon which is based the doctrine that under certain circumstances the pendency of a prior action may be pleaded in abatement of an action commenced in the courts of the same state? The reason for the rule that the pendency of a former action may be pleaded in abate- ment of a second action, is, that if the complaining party PLEAS 129 has already an action pending in which he can obtain full relief, there is no justification for harassing the de- fendant by a second action for the same subject-matter. If it should appear, however, that in the second action the plaintiff can avail himself of some legal or equitable advantage, not open to him in the first action, then a legal reason is shown for the bringing of the second ac- tion, and the pendency of the one would not ordinarily abate the other. This is the reason why, as a rule, the pendency of an action at law cannot be successfully pleaded in abatement of a suit in equity. As is said in Story, Eq. PI., sec. 742: "It can scarcely ever occur that the remedial justice and the grounds of relief are precisely the same in each court, for if the remedy be complete at law, that is an objection to the jurisdiction of a court of equity." In the well-considered opinion of the supreme court of Connecticut in Hatch v. Spofford, supra, it is stated in substance, that while the pendency of a prior suit of the same character, between the same parties, brought to ob- tain the same end, is at the common law good because of abatement, yet the rule is not one of unbending rigor nor of universal application, nor a principle of absolute law, but rather a rule of justice and equity, and that a second suit is not, as a matter of course, to be abated as vexa- tious, but all the attending circumstances are to be care- fully considered, and the true inquiry is, what is the aim and purpose of the plaintiff in the institution of the sec- ond action, — is it fair and just, or is it oppressive? If it appears that the former proceeding, whether at law or in equity, is pending in a foreign state or country, and in this respect the states of the Union are foreign to each other, this fact in itself determines the question ad- versely to the plea in abatement. If it appears that the two actions are pending within the same state, and are both at law or both in equity, and are identical in parties, subject-matter and relief sought, E. p. c— 9 130 RADFORD V. FOLSOM then no necessity appears for the institution of the sec- ond proceeding, in which event it would clearly be op- pressive upon the defendant, subjecting him to unneces- sary costs, and in such case the pendency of the first should abate the second proceeding. On the other hand, if the two proceedings are pending in the same state, between the same parties, and concern- ing the same subject-matter, yet the relief sought is dif- ferent, as in cases of an action at law and suit in equity, when the pendency of the one should not ordinarily operate to abate the other; for the difference in the re- lief obtainable in the two jurisdictions constitutes a sufficient legal reason for the maintenance of both pro- ceedings. But it is urged that while the second of the rules as above given may be applicable to cases pending in courts of the same state, yet it is inapplicable when one case is pending in the state and the other in the federal courts for the same state, the argument being that the two jurisdictions are foreign to each other, and hence that the pendency of a suit in the one court cannot be pleaded in abatement of a suit in the other. It is true that the state and federal tribunals owe their origin to different sources, but when created and brought into action within the same territorial limits, can it be fairly said that there are two states or jurisdictions co-existing within the same limits, and yet foreign to each other, in the sense that Iowa is foreign to New York? The same statutory and common law is enforced by both tribunals, and it cannot be said that if a party is relegated to the state court for the enforcement of his rights, that he is thereby sent into a foreign state or country, whose laws and modes of proceeding are unknown or unfamiliar. As we have already shown, the main purpose of the rule allowing the pendency of one action to be pleaded, under given circumstances, in abatement of a second, is to prevent a defendant from being unnecessarily harassed, H.TJAS I3l and subjected to additional costs by two proceedings when one will fully protect all the rights of the plaintiff. Now, it is apparent that the cost and vexation caused to the defendant by the institution of the second suit is, to say the least, not lessened by the fact that it is brought in the federal while the first is pending in the state tribunal. The evil to be remedied is not obviated by the fact that the two proceedings are pending in tribunals owing their origin, the one to the state, the other to the federal gov- ernment, yet acting within the same territorial limits. If it appears that the two proceedings, being between the same parties, and for the enforcement or protection of the same rights, will result in the granting of the same remedy, operative within the same territorial limits, then it would seem clear that the second is not needed to pro- tect or enforce the plaintiff's rights, and as the defend- ant must of necessity be put to additional trouble and expense in defending the second action, it follows that he is thereby vexatiously harassed, and in such case he should be enabled to protect himself by causing the abatement of the second action. It is the duty alike of the state and the United States court to protect a de- fendant from unnecessary and vexatious litigation. If the first action is brought in the state and the second in the federal tribunal, or vice versa, it is the bringing of the second action that constitutes the oppressive and un- necessary act on part of plaintiff, and the corrective should be applied in the court whose jurisdiction is in- voked oppressively and wrongfully. Again, the fact that the one action is pending in the state and the second in the federal court, instead of being a reason why the second should not be abated, is, on the contrary, a weighty argument for just the opposite conclusion; for if the two proceedings are allowed to proceed at the same time, there may arise all the difficulties from a conflict be- tween the two jurisdictions, acting within the same state^ 132 Parley v. kittson whicli are so fully presented in the opinion in the case of Brooks V. Mills Co., already cited. ' Appljdng these principles to the case before the court, it follows that the demurrer to the plea must be over- ruled, for the demurrer admits the allegation of the plea that the former suit pending in the state court is for the same subject-matter, and to the same effect, and for the like relief and purpose, that is contemplated in the sec- ond proceeding ; and if that be true, then in the absence of any showing justifying the institution of the second suit, as being needed for the full protection of complain- ant's rights, it would necessarily follow that the second suit was uncalled for, and therefore vexatious. In the argument of the demurrer, it was urged that the second suit was necessary for the enforcement of plaintiff's rights, for the reason that the supreme court of the state had decided in the first proceeding that the suit was prematurely brought, and hence should be dis- missed. The effect of such fact cannot be considered on the demurrer, as it is not presented by the record, and the complainant, if he desires to urge the same as a rea- son justifying the bringing of the second suit, must liring the same to the knowledge of the court in the further progress of the cause. 41. FARLEY v. KITTSON 120 U. 8. 303 Justice Gray : A brief abstract of the pleadings will help to make clear what is presented for decision upon this record. The suit was brought by Farley to enforce an agree- ment by which he and the defendants Kittson and Hill agreed to purchase, for their joint and equal benefit, the bonds, secured by mortgages, of two railroads, of one of PLEAS 133 which he was receiver, by appointment of the court, and of the other of which he was the general manager, by ap- pointment of the trustees named in the mortgages. The bill alleged the making of the agreement ; that its object was, by means of the bonds so purchased, to pur- chase the railroads at sales under decrees of foreclosure in suits then pending; that it was agreed that Eattson and Hill should conduct the negotiations for procuring the necessary funds and purchasing the bonds, and the plaintiff should furnish such facts, information and ad- vice, and render such assistance, from time to time, as should be required of him; that the plaintiff had knowl- edge, not possessed by the other parties, as to who held the bonds and at what rate, and how they could be pro- cured, and as to the nature and value of the railroads, and as to the pending suits for foreclosure, and his serv- ices and cooperation were indispensable to the success of the enterprise; that he performed the agreement on his part; that Kittson and Hill obtained the requisite funds from other persons, and purchased the bonds from the bondholders through on Kennedy, the authorized agent of the latter, and afterwards purchased the rail- roads at sales under decrees of foreclosure; that pend- ing the negotiations for the purchase of the bonds, the plaintiff informed Kennedy of his interest, and his con- nection with Kittson and Hill, in the project to purchase them; that the plaintiff at all times, to the best of his knowledge and ability, gave full and true answers and in- formation to all inquiries made by Kennedy, or by any of the trustees or bondholders, or by any person interested in the property under his charge as receiver and as man- ager, and kept Kennedy fully informed of all matters coming to his knowledge affecting the property, and in all things acted honestly and in good faith towards all persons interested in it; that Kittson and Hill had or- ganized a new corporation, which was joined as a de- fendant; and that the defendants had thereby obtained 131 t'ABLEY V. KITTSON a great amount of property and of profits, and liad re- fused to account to the plaintiff for his share. The bill for a discovery, an account, and other relief. The individual defendants filed a plea, which, on the motion of the defendant corporation, was ordered to stand as its plea also, consisting of three parts : First. A restatement in detail of some of the facts al- leged generally in the bill. Second. Averments that the plaintiff never informed Kennedy or any of the bondholders of his interest in the project for purchasing the bonds and thereby acquiring the mortgaged property, as alleged in the bill ; and that neither Kennedy nor the bondholders knew, suspected, or had any information or belief, that the plaintiff had or claimed to have any interest in the project, until after the foreclosure sales. Third. Averments that the making by the plaintiff of the agreement sued on, and his engaging in the enter- prise of purchasing the bonds and thereby acquiring the railroads, were as to that railroad of which he was re- ceiver, unlawful, a breach of his trust as such receiver, and a fraud upon the bondholders and the court; and, as to the railroad of which he was general manager for the trustees under the mortgages, a breach of trust to- wards the trustees and the bondholders, and a fraud upon them ; and that by reason of the fiduciary positions so occupied by him the plaintiff was not entitled to the aid of a court of equity to enforce the agreement or any rights growing out of it. To this plea the plaintiff filed a general replication, and the hearing in the circuit court was upon the issue thus joined. The pleader and the court below appear to have pro- ceeded upon the theory that by a plea in equity a defend- ant may aver certain facts in addition to or contradic- tion of those alleged in the bill ; and also not only, if he proves his averments, avail himself of objections in mat- PIiEAS 135 ter of law to the case stated in the bill, as modified by the facts proved; but even, if he fails to prove those facts, take any objection to the case stated in the bill, which would have been open to him if he had demurred gen- erally for want of equity. But the proper office of a plea is not, like an answer, to meet all the allegations of the bill; nor like a demur- rer, admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact, which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitford PL (4th ed.) 14, 219, 295 ; Story's Eq. PI., sees. 469, 652. The plaintiff may either set down the plea for argu- ment, or file a replication to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the English chancery practice, admits that if the par- ticular facts stated in the plea are true, they are suf- ficient in law to bar his recovery ; and if they are proved to be true, the bill must be dismissed, without reference to the equity arising from any other facts stated in the bill. Mitford PI. 302, 303 ; Story's Eq. PI., sec. 697. That practice in this particular has been twice recognized by this court. Hughes v. Blake, 6 Wheat. 453, 472 ; Rhode Island V. Massachusetts, 14 Pet. 210, 257. But the case of Rhode Island v. Massachusetts arose within its origi- nal jurisdiction in equity, for outlines of the practice in which the court has always looked to the practice of the Court of Chancery in England. Rule 7 of 1791, 1 Cranch. xvii, and 1 How.xxiv; Rule 3 of 1858 and 1884, 21 How. V, and 108 IT. S. 574. And the case of Hughes v. Blake, 136 PARLEY V. KITTSON which began in the circuit court, was decided here in 1821, before this court, under the authority conferred upon it by Congress, had established the Rules of Practice in Equity in the courts of the United States, one of which provides that "if upon an issue the facts stated in the plea be determined for the defendant, they shall avail iiim as far as in law and equity they ought to avail him." Rule 19 in Equity of 1822, 7 Wheat, six; Rule 32 in Equity of 1842, 1 How. li. The effect of this rule of court when the issue of fact joined on a plea is deternained in the defendant's favor need not, however, be considered in this case, because it is quite clear that at a hearing upon plea, replication and proofs, no fact is in the issue between the parties but the truth of the matter pleaded. In a case so heard, decided by this court in 1808, Chief Justice Marshall said: "In this case the merits of the claim cannot be examined. The only questions before this court are upon the sufficiency of the plea to bar the action, and the sufficiency of the testimony to support the plea as pleaded." Stead v. Course, 4 Cranch. 403, 413. In a case before the House of Lords a year after- wards. Lord Redesdale ' * observed, that a plea was a spe- cial answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required. If a plea were al- lowed, nothing remained in issue between the parties, so far as the plea extended, but the truth of the matter pleaded." "Upon a plea allowed, nothing is in issue be- tween the parties but the matter pleaded, and the aver- ments added to support the plea." "Upon argument of a plea, every fact stated in the bill, and not denied by an- swer in support of the plea, must be taken for true." Roche v. Morgell, 2 Sch. & Lef. 721, 725-727. The distinction between a demurrer and a plea dates as far back as the time of Lord Bacon, by the 58th of PliBAS 137 whose Ordinances for the Administration of Justice in Chancery, "a demurrer is properly upon matter de- fective contained in the bill itself, and no foreign matter; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the plaintiff is outlawed or excommunicated, or there is another bill depending for the same cause, or the like." Orders in Chancery (Beames' ed.) 26. Lord Eedesdale, in his Treatise on Pleadings, says: "A plea must aver facts to which the plaintiff may reply, and not in the nature of a demurrer, rest on facts in the bill." Mitford PI. 297. And Mr. Jeremy, in a note to this pas- sage, commenting on the ordinance of Lord Bacon, ob- serves, "The prominent distinction between a plea and a demurrer, here noticed, is strictly true, even of that description of plea which is termed negative, for it is the affirmative of the proposition which is stated in the bill;" in other words, a plea, which avers that a certain fact is not as the bill affirms it to be, sets up matter not contained in the bill. That an objection to the equity of the plaintiff's claim, as stated in the bill, must be taken by demurrer and not by plea is so well established, that it has been constantly assumed and therefore seldom stated in judicial opinions; yet there are instances in which it has been explicitly recognized by other courts of chancery, as well as by this court. Billing v. Plight, 1 Madd. 230; Steff v. Andrews, 2 Madd. 6; Varick v. Dodge, 9 Paige, 149; Phelps v. Garrow, 3 Edw. Ch. 139; Rhode Island v. Massachusetts, 14 Pet. 210, 258, 262; Na- tional Bank v. Insurance Co., 104 U. S. 54, 76. It only remains to apply these elementary principles of equity pleading to the case before us. The averments in the first part of the plea, restating in detail some of the facts alleged in the bill, were ad- mitted by stipulation of counsel in writing to be true, and no controversy arose upon them. The substance of the averments in the second part of 138 PAELET V. KITTSON the plea was that neither Kennedy, nor the bondholders whose agent and representative he was, had any notice or knowledge that the plaintiff had or claimed to have any interest in the project set forth in the bill, until after the sales of the railroads under decrees of foreclosure. The matter of fact thus averred was put in issue by the replication. The testimony of the plaintiff (in connec- tion with Kennedy's letter to him), which was uncontra- dicted, and was the only evidence upon the matter pleaded, shows that Kennedy, before the completion of the sale and purchase of the bonds, knew that the plain- tiff was to have an interest in the project, although he may not have known the extent of that interest, or that it had been already acquired. The want of any notice to Kennedy and the bondholders, averred in the plea, was thus disproved. The plea, indeed, is supported by the affidavit of one of the defendants that it is true in point of fact. But the oath of the party to its truth in point of fact is added only for the same purpose as the certificate of counsel that in their opinion it is well founded in matter of law, in order to comply with the 31st Eule in Equity, the ob- ject of which is to prevent a defendant from delaying or evading the discovery sought, without showing that the plea is worthy of the consideration of the court. Ewing V. Bright, 3 Wall. Jr. 134; Wall v. Stubbs, 2 Ves. & B. 354. An answer under oath is evidence in favor of the defendant, because made in obedience to the demand of the bill for a discovery, and therefore only so far as it is responsive to the bill. Seitz v. Mitchell, 94 U. S. 580. But a plea, which avoids the discovery prayed for, is no evidence in the defendant's favor, even when it is under oath and negatives a material averment in the bill. Heartt v. Corning, 3 Paige 566. The allegations of the bill, that the plaintiff at all times, to the best of his knowledge and ability, gave full and true answers to all inquiries made by Kennedy or any of the trustees or bondholders, or any person inter- ested in the property under his charge as receiver and as manager, and in all things acted honestly and in good faith towards all person interested in it, were not denied by the plea, and therefore, for the purposes of the hear- ing thereon, were conclusively admitted to be true. So much of the plaintiff's testimony, as tended to show that he intentionally concealed his interest from the stock- holders and from the court, was outside of the averments of the plea, and therefore irrelevant to the issue to be tried. The plaintiff having neither moved to set aside the plea as irregular for want of an answer supporting it, nor set down the ease for hearing upon the bill and plea only, but having rephed to the plea, and the only issue of fact thus joined having been determined by the evidence in his favor, it is unnecessary to consider whether the averments of fact in the second part of the plea ought to have been supported by an answer, or whether, if proved, they would have made out a defence to the bill. The averments in the third part of the plea, that, by reason of the plaintiff's position as receiver and general manager of the railroads, his entering into the agree- ment sued on, and engaging in the enterprise of purchas- ing the bonds and thereby acquiring the railroads, were unlawful, and did not entitle him to the aid of a court of equity to enforce the agreement of any rights growing out of it, were averments of pure matter of law, arising upon the plaintiff's case as stated in the bill, and affect- ing the equity of the bill, and therefore a proper subject of demurrer, and not to be availed of by plea. The result is, that the principal question considered by the court below and argued at the bar is not presented in a form to be decided upon the record before us; and that, for the reasons above stated, and as suggested in behalf of the plaintiff at the reargument, the plea was 140 WElSTERVBaL.T ET AL. V. LIBRARY BUKEAtT erroneously sustained, and must be overruled, and the defendants ordered, in accordance with the 34th Rule in Equity, to answer the bill. 42. WESTERVELT ET AL. v. LIBRARY BUREAU 118 Fed. Rep. 824 Putnam, J.: This is a bill in equity, alleging an in- fringement of letters patent for an invention. The bill being in the common form, it was, of course, subject to an answer setting up the various usual defenses to such suits. The respondent, however, pleaded priority of in- vention by the person named in the plea. A replication was duly filed and an issue of fact was tried by the court, and decided in favor of the complainants. Thereupon the defendant filed an answer, setting up numerous de- fenses. The answer was filed without leave of court first obtained therefor. Thereupon the complainants moved that it be stricken from the files. This motion was over- ruled, and an order made that the "answer be allowed to stand pursuant to equity rules 33 and 34." Of course, the order had the same effect by retroaction as though the answer had been filed by special leave. Subse- quently, the complainants, insisting that the court was not justified in its refusal to strike out the answer, failed to file any replication or to take other action, and the bill was thereupon dismissed, the dismissal being ex- pressed as pursuant to equity rule 66. The complain- ants appealed to us. According to the ordinary equity practice, after a plea to the merits is disproved on an issue of fact, the respond- ent can set up no further defense, and a decree will be made against him. Adams' Eq. (8th Ed.) 342. Of course, this does not deprive a complainant of his right to insist on an answer so far as he may desire to obtain PliEAS 141 discovery thereby. In view of the liberal rules by virtue of which equity ordinarily adjusts itself to meet unex- pected contingencies, it may well be supposed that, even under the ordinary practice, and independently of any general orders, chancery might reheve a respondent, and permit him to answer, when justice shows clearly that such leave should be granted; althougli we find no instance thereof. However, it is not necessary to de- termine this particular proposition, because the practice in this respect, so far as the federal courts are concerned, is governed by the rules already referred to. Eule 33 provides that if, on an issue, a plea is determined for the defendant, it shall avail him only as far as in law and equity it ought to avail him. In this casa the respondent set up what was a complete bar to the bill, and what would have entitled him to a decree if the issue had been decided in his favor. Rule 34, after making provision for costs, which we need not explain, directs that, "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." In the strict language of equity practice, overruling a plea relates only to an overruhng on the argument of a demurrer, or something else involving mere questions of law ; while, if an issue of fact is made, the plea is or- dinarily said to be sustained or disproved. Eule 34, as originally adopted in 1822, appeared as rule 20, 7 Wheat. X. Apparently, its only purpose then was to prohibit another plea, or a demurrer following a plea. It was re-enacted in 1842 (1 How. lii), and there brought into its present form. 1 Bates' Fed. Eq. Proc. 1901, p. 360, affirms that rule 33 has changed the practice of the federal courts from the old chancery practice; but this rule relates only to instances where the complainant has hazarded his case on an issue raised by a plea, and has lost. The author proceeds, at page 361, to discuss the effect of falsifying 142 WESTERVEI/r ET AL. V. LIBBABT BUEEAtJ a plea, and he gives the English chancery practice with- out any reference to rule 34. In this connection he makes no reference to the decisions of the supreme court, which we must accept as decisive of the construction of this rule. Therefore we can give no weight to his dis- cussion, so far as the question now before us is con- cerned. It is true that rule 34 uses the expression "in point of law or facts" in connection with its first sentence, rela- tive to costs ; but we find in it nothing which clearly re- quires us to hold that it authorized one issue of fact to be tried after another. It, however, is capable of a broad construction; and, although we fail to find anything in any opinion of the supreme court in explanation of its purpose, or of the amendments made in 1842, yet we are compelled to accept the action of that court in Farley v. Kittson, 120 U. S. 303, 318, 7 Sup. Ct. 534, 30 L. Ed. 684, and in Dalzell v. Manufacturing Co., 149 U. S. 315, 326, 327, 13 Sup. Ct. 886, 37 L. Ed. 749, as conclusively sus- taining the order of the circuit court now appealed against. The attempted explanations by the complainants of these decisions are in no way satisfactory; especially their suggestion that the judgments entered by the su- preme court in the cases cited were so entered because, possibly, the complainants desired discovery, so that, therefore, they were entered on their request. Neither can the complainants derive any help from Kennedy v. Creswell, 101 U. S. 641, 25 L. Ed. 1075, which they urge on us so strongly because that case originated in the courts of the District of Columbia, to which the equity rules of the supreme court do not apply. The discussion in that opinion is with reference to the ordinary equity practice, and without any allusion to rule 34. It is plain beyond argument that in the two cases above cited the supreme court, without hesitation, although, it is true, PLEAS 143 without explanation, interpreted rule 34 as the circuit court interpreted it. The decree of the circuit court is affirmed, and the costs of appeal are awarded to the appellee. 43. BOLTON v. GARDNER 3 Paige Ch. (N. Y.) 273 The Chancellob: Several objections are made to this plea which are merely formal ; but the principal ob- jection is that it is pleaded in bar to the discovery of what the complainant's counsel considers a material fact to destroy the defence arising out of the release and assignment of Bolton. I beheve the answer is suffi- ciently full as to all the matters of the bill not professedly covered by the plea. Whether the plea does not cover the discovery of some facts as to which the complainant was entitled to an answer, I shall presently consider. The rule which requires an answer in support of a plea, in certain cases, does not render it necessary that the defendant should deny positively, in the answer, matters of which it cannot be presumed he has any personal knowledge. Where fraud or other circumstances are charged for the purpose of avoiding a release, the de- fendant pleading the release, must by proper negative averments in his plea, deny the allegation of fraud, &c., and must support his plea by a full answer and discovery as to every equitable circumstance charged in the bill to avoid the bar. (Mad. & Geld. Rep. 64; 2 Ves. & Beam. Rep. 364.) But in the case of negative averments as to matters not alleged to be the act of the defendant, or where, from the nature of the case, he cannot be sup- posed to have any personal knowledge of the subject, it is sufficient for him to deny the facts charged upon his belief only. (Drew v, Drew, 2 Ves. & Beam. 159.) The 144 BOLTON V. GAEDNEE defendant, however, must be careful so to frame his averments that the complainant may put the facts in is- sue by a replication. And where the negative averments in the plea are permitted to be made upon the belief of the defendant, it will be sufficient for him, in the answer in support of such plea, to deny the equitable circum- stances stated in the bill, according to his knowledge, in- formation and belief only. One objection which is urged by the complainants' counsel, to the form of the plea in this case, is that some of the averment therein professing to negative the charges in the bill, are not direct and issuable, but are involved and argumentative. I am inclined to think this objection is well taken. One of those averments commences thus: "And this defendant further avers, that for the reasons in his answer particularly set forth, he cannot say whether or not," &c., concluding with two or three involved exceptions, and embracing in a paren- thesis another distinct averment of ignorance. This mode of denying an allegation in the bill might not per- haps be deemed objectionable in an answer, where every allegation, not admitted by the defendant, is put in issue by the formal traverse at the close of the answer. But it is bad in a plea where the negative averments must tender an issue directly. Another objection to the plea is that it is overruled by a part of the answer. The defendant, by his plea, ob- jects to answering any allegations in the bill, which call for a discovery as to the situation or amount of the estate of McLachlan, which has come to his hands as adminis- trator; yet he does answer in part as to those matters. He alleges, in substance, that the inventory filed by him in the office of the surrogate contains a just and true ac- count of the estate which had come to his hands, except eleven volumes of books and $132, which came to his hands afterwards. He also states that the $1,000 paid Bolton at the time of making the release, was fully equal PLEAS 145 to what he was rightfully entitled to, and was not, as al- leged in the bill, less than one-fifth of his just distrib- utive share of the estate. If it was necessary or proper to put these allegations in an answer in support of this plea, then it was improper to plead the release in bar of the discovery as to the amount of the estate. The de- fendant should have pleaded in bar of the relief merely, and have given a full discovery as to the actual amount of the estate. If the allegation in the answer, that the amount paid to Bolton at the time of the execution of the release was not less than one-fifth of his distributive share of the estate, and that it was fully equal to what he was rightfully entitled to, was not necessary to sup- port the plea, it overrules the whole plea and constitutes a double bar. (2 Sim. & Stu. E. 281.) Taking this an- swer to be true, Bolton received from the defendant his full distributive share of the estate, and all he had any right to claim. This of itself is a full defence to the suit, and to the whole relief asked for by the bill. Independent of these objections to the plea, in point of form I think the complainant was entitled to a full dis- covery as to the actual amount of the personal estate of McLachlan. We have before seen that the party plead- ing a release which the complainant seeks to impeach upon equitable circumstances, must, in his answer sup- porting the plea, make a full discovery as to every mate- rial circumstance relied on to avoid the bar. One equit- able circumstance relied upon here is, that Bolton under- stood from Miller that his share of the estate was less than $1,000, whereas the complainant alleges it was more than five times that amount, and that this fact was then known to the defendant and his solicitor. If this was so, although Miller himself was probably misinformed as to the amount, I am not prepared to say that a trustee can be permitted to support a release from his cestui que trust, founded on such a gross inadequacy of considera- tion; although there was no actual fraud intended. I E. p. C— 10 146 LESTER V. STEVENS think, in such a case, the defendant should be required to show that the parties were treating for a settlement at arms' length, or that he gave the cestui que trust a fair statement of the amount of the property, so far as was necessary to enable him to act understandingly in rela- tion to his rights. Although the defendant denies knowl- edge of the amount of property charged in the bill, com- plainant has a right to know what the property was, and when it came to the defendant's hands, to enable the court to see whether the allegation is true. I think the vice-chancellor erred in allowing this plea ; and his decision must be reversed, with the costs of this appeal. The plea is to be overruled, but without prej- udice to the right of the defendant to insist upon the release and assignment, in his answer, as a bar to the re- lief sought by the complainant 's bill. As the complainant is prosecuting her cause before the vice-chancellor in forma pauperis, the question whether she is to receive costs upon the argument of the plea before the vice-chancellor, must be reserved until the hearing; but they are not to be allowed if the defendant succeeds in his defence. This court will not encourage the prosecution of suits in forma pauperis, merely for the purpose of obtaining the costs of interlocutory pro- ceedings, if there is no reasonable hope of succeeding on the merits. As the complainant cannot prosecute an ap- peal as a poor person, and is also obliged to give security for the costs of the adverse party in such a case, it is reasonable that she should recover dives costs for the proceedings on the appeal. 44. LESTER v. STEVENS 29 III. 155 Caton, C. J. : At the time this plea to the jurisdiction of the court was filed, there were four defendants, one of PLEAS 147 whom, the sheriff of Ogle, had been brought in and made a party by the amended bill. The plea avers, that Wil- lard and Pearce, "the major part of said defendants," reside in Cook county. The averment that two is the major part of four, does not make it so; nor does the set- ting of a plea for hearing, admit that which cannot be true. Now, our statute says, that the suit shall be com- menced in the county where the defendants, or a major part of them, reside ; this, if it were possible to raise the question, would put beyond the jurisdiction of any court a vast number of suits where there are several defend- ants, for it is very common that a major part of the defendants do not reside in any one county ; and but for the rule that every plea to the jurisdiction must give a better writ, and show affirmatively that some other court can take jurisdiction, there would be a failure of justice in such cases. In order to make this plea good, we must find in it the facts which would give some other court jurisdiction. We only learn from the plea, that two of the four defendants reside in Cook county. This is not sufficient to give that court jurisdiction under the stat- ute, any more than the residence of the other two in Ogle, would give that court jurisdiction. It gives the party no better writ, and he may stay where he is, till he is shown a better one. The next objection is, that this is a bill to restrain the collection of a judgment rendered in the circuit court of Cook county. If this were the primary object of the bill, it would undoubtedly be fatal to the jurisdiction of the court, but it is not so where the principal object of the bill is for other relief, and the stay of the collection of the judgment is incidental or auxiliary, and for the pur- pose of making the relief complete for which the bill is filed; and for the purpose of determining these ques- tions, even on such a plea as this, we must look into the bill itself. If the plea avers that there are but three de- fendants, or that two is a major part of the defendants, 148 EWING V. BUGHT which is the same thing in substance, that averment in the plea cannot avail against the fact that there is on the face of the bill manifestly four defendants ; and so when we can see that the principal objects of the bill are other than the stay of the execution, and that that is but the incident, the averment of the plea to the contrary cannot avail. Here, the principal objects of the bill are, to be re- lieved from a mortgage or trust deed, and a sale made under it on account of usury ; and the stay of the execu- tion in the hands of one of the defendants, is introduced as incidental to that main object. Whether, in the at- tainment of that main object, the complainants can ob- tain relief from that judgment, is not before us on this plea. The bill may be obnoxious to a demurrer for mul- tifariousness, or for want of equity, or for any other cause, without affecting this question, which is one of jurisdiction only. We think the plea was insufficient to oust the court of its jurisdiction, and that it should not have been sus- tained. We have treated what the party calls a demur- rer to the plea as simply setting the plea down for hear- ing, which is the proper mode of raising the question of the sufficiency of a plea to bill in chancery, because the court below so treated it. The court would have been justified in disregarding the paper called a demurrer, as inappropriate to such a pleading. 45. EWING V. BLIGHT 3 Wallace Jr. 139 Statement of Facts: During the pendency of a plea to the jurisdiction an application was made for an in- junction and a receiver. Gbiek, J. : The pendency of a plea to the jurisdiction PLEAS 149 of the court necessarily precludes all further action of the court till it is decided. This rule of practice is founded on reason as well as fortified by authority. 13 Ves. 164. While the jurisdiction of the court or the equity of the bill is in doubt by the pendency of a plea or demurrer, it would be highly improper for the court to interfere by the exercise of such high powers over men's property. The court have it always in their power to guard against the abuse of dilatory pleas. If irremediable mis- chief should impend, which it is absolutely necessary to meet with promptness, or if there be any just suspicion that the plea or demurrer is merely intended for delay, the court will order an immediate hearing or trial of the plea. If an issue be desired to try the plea of jurisdiction in this case it will be ordered, or any other rule which com- plainant may desire, for the purpose of expediting the fiaial hearing in case the jurisdiction should be found to exist. 46. BAILEY V. WEIGHT 2 Bond 181 Opinion of the Coukt: The bill in this case alleges, in substance, that upon certain false and fraudulent rep- resentations by the defendants, the complainant was in- duced to make an advance to them of $20,000, to be in- vested in the purchase of cotton for the benefit of all the parties. It is averred, also, that as an inducement for making said advance, and an indemnity therefor, the de- fendant Wright represented himself as the owner of valuable real estate in Cincinnati, which he promised to mortgage to the complainant to secure him against loss for said advance in money. The bill contains direct al- legations of fraud on the part of defendants, prays for 150 BAIOIT V. WRIGHT an account, and for a decfree requiring the defendant Wright to execute a mortgage on the real estate in Cin- cinnati, according to his promise. The defendant Wright has filed a plea to the bill, de- nying all the allegations of fraud, and averring, as to the averment of the bill that he promised to execute a mortgage of real estate, that if any such promise was made it was verbal, and therefore void under the statute of frauds. The pending motion in the case is for an order to with- draw the plea from the files, and to require an answer to the merits. The only question intended to be presented on this motion is whether, under the allegations of the bill, the defendant Wright can rely on his averment that the promise to execute the mortgage was void under the statute of frauds, without an answer in response to the charges of fraud in obtaining the advances of money by the complainant. The defendant has an undoubted right to set up that the agreement to mortgage was by parol, and therefore void. But the law seems now to be well settled, that where facts are asserted in a bill, the effect of which may be to take a verbal agreement out of the operation of the statute of frauds, it is incumbent on the respondent to re- spond by answer to such facts. This would seem to be the fair construction of the thirty-second rule of the rules of practice in chancery, adopted by the supreme court for the guidance of the courts of the United States. And such seems to be the law applicable to the question as laid down by Judge Story. Story's Eq. Plead., 591. It is clear that a plea merely setting up the invalidity of an agreement under the statute of frauds, where other facts are averred in the bill in support of the complain- ant 's equity, and which may be of a character to require a court to ignore the plea of the statute, the defendant should be required to file his answer to such facts. Such, it seems to the court, is in accordance with the spirit and PliEAS 3 51 design of the thirty-second rule before referred to. And without deeming it necessary, in deciding the present motion, to refer to the frauds alleged in the bill, and without intimating any opinion upon the question whether, if the frauds charged were proved, the legal ef- fect would be to supersede the plea of the statute of frauds, and present the entire transaction for inquiry on the broad principles of equity, an order will be entered requiring the defendants to file their answer to the bill. There can be no hardship in such an order. The defend- ants should gladly avail themselves of the opportunity of denying the frauds charged. I trust they will be able to acquit themselves of all imputations impugning their integrity in the transactions set out in the bill. 47. SP ANGLER v. SP ANGLER 19 III. App. 28 Wilkin, J. : At the December term, 1885, of the cir- cuit court of Jefferson county, defendant in error filed his bill for divorce against plaintiff in error. The bill alleges that both parties reside in said Jefferson county. To this bill plaintiff in error, filed a plea denying that defendant in error, was at the time of filing his bill or since, a resident of Jefferson county, and averring that he was at that time, and still is a resident of Washington county in this State. The plea concludes by demanding the judgment of the court whether she ought to be com- pelled to make any answer to the bill, etc. To this plea the defendant in error filed a general demurrer, which was sustained. The plaintiff in error faihng to answer further she was defaulted and on hearing a decree was rendered in favor of the defendant in error. The only question presented for our decision is as to whether or 152 SPANGLEB V. SPANGLIK not the court erred in sustaining the demurrer to the plea. It is not proper practice to dispose of a plea in chan- cery on demurrer. Story's Equity Pleading, sec. 697; Daniel's Chancery Pleading and Practice, Vol. 1, sec. 4, p. 713 ; Cochran et al. v. McDowell, 15 111. 10 ; Dixon v. Dixon, 61 111. 324. The demurrer may, however, be treated as equivalent to setting the plea for hearing, and we shall so consider it. By sec. 5, chap. 40, R. S., it is expressly provided that divorce proceedings shall be had in the county where the complainant resides. The latter clause of sec. 2, chap. 40, of the statute of 1845, was the same. In Way v. Way, 64 111. 410, the supreme court say: "The language is imperative, and excludes the right to commence proceeding in any other county than the one in which the residence of the complainant is fixed." If the statute could, by possibility, be construed into a different meaning, this case effectually disposes of all that is said by counsel for defendant in error as to the right of a complainant to bring a bill for divorce in any other county than that in which he resides. The al- legation in the bill that the complainant resided in Jef- ferson county was a material and necessary one, and the plaintiff in error unquestionably had the right to put it in issue. Counsel for defendant in error seem to main- tain that this can not be done by plea, and in the argu- ment confound this plea with a plea in abatement to the jurisdiction as at common law, objecting to the manner in which it concludes, and citing authorities as to the req- uisites of a plea at law. It scarcely need be suggested that pleas in equity are not to be determined by the rules of pleading at law and hence the authorities cited both as to the office and form of this plea have no application whatever. The plea in this case is not a plea to the juris- diction, but a plea in bar. The same defense set up in the plea might have been interposed by answer, as was done in Way v. Way, supra. It may with equal pro- PLEAS 153 priety be done by plea. A plea to a bill in chancery is proper whenever the defendant wishes to reduce the cause, or some part of it, to a single point, and from thence to create a bar to the suit. Smith's Chancery Practice, Vol. 1, page 216; Story's Equity Pleading, sec. 652. Pleas in chancery are pure pleas and pleas not pure. Pleas not pure are sometimes called negative pleas — Ibid., sec. 651. It was formerly doubted whether a purely negative plea was a legitimate mode of defense in equity ; but that doubt has been dissipated, and it is now firmly estabUshed that such a plea is good — Ibid., 668. In sec. 652, supra, the author says: "The true end of a plea is to save to the parties the expense of an examina- tion of witnesses at large." It would, therefore, seem to be eminently proper in this Mnd of proceeding, if the complainant did not reside in the county in which the bill was brought, such residence being a "prerequisite to the existence of the right to file the bill," as was said in Way v. Way, supra, to raise the question, by plea, and thus save the expense of a general hearing. We see no objection to this plea, either in form or substance, as a plea in bar to a bill in chancery. The court below erred in holding it bad, and the decree is reversed and cause remanded for that reason. 47A. HARVEY ET AL. v. MOEGAN 58 Fla. 428 Whitfield, C. J. : In proceedings to remove a cloud from title to land John W. Morgan alleges "that he is in possession of and has a fee simple title to the ' ' land ; that he "deraigns his title from Edwin Forrest, who was the grantee in a deed issued by the state of Florida for said premises and resided thereon for a number of 154 HARVEY ET AL. V. MORGAN years;" that the defendants claim through a tax deed obtained as specifically stated in the bill, and "that the title and claim of the defendants to said premises is null and void and of no effect save and except to cast a cloud upon the title of" complainant, because the defendants or those through whom they claim "have never been in possession of the said premises ; and that their deeds to the said premises convey no title, because they have not brought suit to recover the possession of the land and are now barred by the statute and because the tax deed is null and void." It is also alleged that neither the defendants nor those under whom they claim "have ever entered into or taken possession of said premises," "or enclosed said premises with a substantial enclosure, nor has said premises been cultivated or improved," nor have the defendants "ever been in actual possession of the said premises, and have never brought suit for the recovery of the actual possession of the premises." Answer under oath was expressly waived. A demurrer to the bill was presented. The grounds of it argued here are that the validity of complainant 's title is not shown and that the invalidity of defendant 's title is not shown. The demurrer was over- ruled and the defendants separately filed two pleas, one of which avers that the defendants or those through whom they deraign title have been in continuous occupa- tion and possession of the premises claiming ownership thereof under a written instrument as a conveyance of the land for more than seven years before the filing of the bill of complaint. The second plea is of adverse pos- session under a specific tax deed. Upon overruling the pleas the defendants were allowed thirty days to file an amended plea and answer in support of the plea. The defendants jointly filed substantially the same pleas and an answer, but the answer is not signed by the defendants, the signatures being in the names of the defendants by their respective counsel. As the answer was not signed PLEAS 155 by the defendants, a decree pro confesso and final decree for the complainant were rendered. On appeal it is contended that the court erred (1) in overruling the demurrers to the bill of complaint; (2) in overruling the pleas and requiring an amended plea and an answer in support thereof; (3) in rendering the decree pro confesso and final decree. The entire argument in support of the demurrer to the bill of complaint is that ' ' the demurrers should have been sustained because the bill was vague, indefinite and because the title or interest or even the possession of the complainant is not set forth with sufficient certainty to require the defendants to plead to the bill of complaint. ' ' It is alleged that the complainant is in possession of and has a fee simple title to the land, and that the title is deraigned from a designated person who was the grantee in a deed from the state for the premises and resided thereon for a number of years. These allegations are not very full and specific, but they are not so defective as to be subject to an objection merely that they are vague and indefinite even if such an objection can be made here when not made in the court below. The alle- gations are not amenable to the bare ■ statement in the brief as above quoted that the title or interest or posses- sion of the complainant is not sufficiently stated to re- quire a plea. No reference is made in the brief to the ground of the demurrer that the allegations of the bill of complaint do not show the invalidity of the defend- ants ' title. Pleas in equity causes are required to set forth the ultimate facts offered as a bar to the suit. The aver- nients of a plea in equity must be of matters not alleged in the bill, must be direct and positive, must not state matters by way of argument, inference or conclusion, and must state all facts necessary to render the plea a com- plete equitable defense to the case made by the bill, so far as the plea extends. Where the plea does not state 156 HAKVEY ET AL. V- MORGAN a full and complete defense, or where the necessary facts are to be gathered by inference alone, the plea should be overruled upon argument. DaOosta v. Dibble, 40 Fla. 418, 24 South. Eep. 911; Langdell on Eq. PI., Chap. 98 et seq.; Beames' Pleas in.Eq., 34 et seq., 31 Cyc. 49. If pleas do in effect meet the above requirements they should not be overruled. The first plea in this case avers that the defendants or those through whom they claim title have been in con- tinuous occupation and possession of and claiming the ownership of the land under a written instrument as being a conveyance of the premises, for more than seven years before the filing of the bill of complaint. The second plea avers seven years continued occupation and posses- sion under claim of title exclusive of any other right founding such claim upon a certain tax deed from the state of Florida. These averments are sufficient to meet the allegations of the complainant as to the invalidity of the defendants' title, and to put in issue the question of the possession of the complainant. The rule announced in the case of Henderson v. Chaires, 35 Fla. 423, 17 South. Eep. 574, is not applicable here as the allegations of the bill do not clearly show the invalid- ity of the defendants' title, the allegations denying the possession of the defendants not being full and complete. Under the statute the defendant may have acquired title by adverse possession under color of title even if the allegations of the bill of complaint are true. See Doyle V. Wade, 23 Fla. 90, 1 South. Rep. 516, 11 Am. St. Rep. 334; Harriv v. Butler, 52 Fla. 253, 42 South. Rep. 186; Chap. 1721 Gen. Stats, of 1906. The plea in effect pre- sents new matter as a single complete defense to the suit, and avoids the rule announced in Keen v. Brown, 46 Fla. 487, 35 South. Rep. 401, that a plea which sets forth nothing except what appears on the face of the bill is bad, and must be overruled although the objection, if raised by demurrer, would have been valid, as the proper PLEAS 157 office of a plea is to bring forth fresh matter not apparent in the bill. Fletcher's Eq. PI. & Pr. 270. The ultimate facts averred in the pleas set up a single good defense that is not fully anticipated by the bill. The final decree is reversed and the cause is remanded with directions to vacate the decree pro confesso and to sustain the plea. It is so ordered. XII ANSWERS 48. RUSSELL v. STICKNEY 56 Sou. Rep. (Fla.) 692 Shackleford, J. : This is a suit brought by Ada Rus- sell and other named complainants, against Edward Stickney and two other named defendants for the parti- tion of certain described lands, which suit resulted in a final decree being rendered in favor of the defendant, Edward Stickney. From this decree the complainants and the other two defendants have entered their appeal to this court. A very succinct statement of the bill is that it alleges that on the 12th day of May, 1882, Edward Stickney, by a certain deed, duly executed and acknowledged, con- veyed an undivided one-half interest in and to certain described lands, of which partition is sought, to Silvanus Pinder, who, upon the receipt of such deed, "entered into possession of the said real estate as a tenant in common with the said Edward Stickney, and continued in the possession, as aforesaid, and while in said posses- sion, as aforesaid, the said Silvanus Pinder, on the 28th day of February, A. D. 1891, departed this life intestate," leaving as his sole heirs at law his children, who are the complainants, and another daughter, Alice Sweat, who had subsequently also departed this life intestate, leav- ing as her sole heirs at law two children, who were in- fants, and were made codefendants with Edward Stickney. After having unsuccessfully interposed a demurrer to the bill, Edward Stickney filed a sworn answer thereto, 158 ANSWERS 159 the oath to the answer not having been waived in the bill, in which he admitted the execution of the deed as alleged, but denied that Silvanus Pinder had ever entered into the possession of any part of the land, or was in possession thereof at the time of his death, or that he or his heirs had ever been in such possession. On the con- trary, the defendant positively averred that he had "been in absolute control and possession from the day he made his homestead entry up to the fihng of this his answer, ' ' and that at no time did Silvanus Pinder during his lifetime, or his heirs at law subsequent to his death, ever claim any portion of the proceeds arising from the crops which the defendant had raised upon the land by his own. exertions, "but, on the contrary, have at all times acquiesced in the control and management of said lands by the defendant. ' ' A replication was filed to the answer, and a special master appointed to take testimony of the respective parties. A number of objections were interposed to certain proffered testimony, all of which were presented to the chancellor at the final hearing of the cause, and expressly ruled upon by him, as is pro- vided by our rule relating thereto. See Lovett v. Arm- strong, 61 Fla. 681, 54 South. 381. At such final hearing, as we have previously said, a decree was rendered in favor of the defendant, Stickney, and the bill dismissed. In such decree the chancellor sets out certain facts which he finds ' ' established by the undis- puted testimony." After reciting the execution of the deed by Stickney to Pinder to an undivided one-half interest in the land, on the 12th day of May, 1882, the decree proceeds as follows : "That the defendant has ever since remained in the exclusive possession of said tract of land, paying the taxes, cultivating it, and enjoying the rents, issues, and profits thereof without let or hindrance, and that no assertion of ownership or possession was made by Sil- vanus Pinder up to his death on February 28, 1891, nor 160 RUSSELL V. STICKNET any such assertion made by his heirs, the complainants, up to the filing of this bill on January 3, 1910, a period of nearly 28 years after the execution of the deed to Pinder. "While in a court of law the possession of one tenant in common, in the absence of acts constituting an ouster, is the possession of his cotenant, yet courts of equity favor diligence, and are loath to enforce claims when the claimants are shown to have been guilty of laches for a long period of time. "It is considered by the court that the claim of the complainants to the land in controversy or any interest therein is stale ; therefore it is ordered and decreed that the prayer of their bill be denied, and the bill dismissed, at complainants' cost." In view of the conclusion which we have reached, it becomes unnecessary to discuss all the errors assigned. We are of the opinion that error was committed in over- ruling some of the objections interposed by the com- plainants to certain proffered testimony of the defendant, Stickney, but such erroneous rulings resulted in no in- jury to the complainants. Discarding all of the testimony so erroneously admitted, we would still be impelled to the same conclusion. (1-4) We have called attention to the fact that the answer of the defendant, Stickney, was under oath, there- fore, in so far as it was responsive to the allegations of the bill, and direct, positive, and unequivocal in its terms, was evidence in his favor, in order to overcome which two witnesses were required, or one witness and corrob- orating circumstances. If the complainants had wished to avoid the probative force of a sworn answer, they could have done so by expressly waiving the oath in their bill. Kahn v. Weinlander, 39 Fla. 210, 22 South. 653, and Pinney v. Pinney, 46 Fla. 559, 35 South. 95. The answer positively denies that either the complainants or their ancestor, through whom they claim, were ever in posses- ANSWERS 161 sion of the land, or exercised any acts of ownership over the same, which was clearly responsive to the bill. The only evidence adduced upon this point by the complain- ants was the production of the deed executed by such defendant to their ancestor, the execution of which the defendant had admitted in his answer. We held, in Mc- Gourin v. Town of De Funiak Springs, 51 Fla. 502, 41 South. 541, that: "Where the bill alleges that the com- plainant is seised and possessed of land, and the sworn answer, where the oath has not been waived, denies such seisin and possession, the burden is upon the complainant to prove the seisin and possession by sufficient evidence." It is true, as we held in Levy v. Cox, 22 Fla. 546, that "right of possession of land is incident to a legal title, and a person who has a legal title is presumed to be in possession," but it is also true that this legal presump- tion may be overcome by proof, just as possession of per- sonal property is prima facie evidence of ownership; but such presumption is rebuttable, and may be overcome. Adams v. Board of Trustees, I. I. Fund, 37 Fla. 266, 20 South. 266, and American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. 942, 16 Am. & Eng. Ann. Cas. 1054. Also see Bass v. Ramos, 58 Fla. 161, 50 South. 945, 138 Am. St. Rep. 105, as to the legal presumption from the possession of land, and that such presumption may be rebutted and overcome by proof. It is further true that "the entry and possession of one tenant in common is presumed to be for the benefit of all ; and will, in the absence of a statute to the contrary, be regarded as the possession of all the tenants, until ren- dered adverse by some act or declaration by him, repu- diating their interest in the property. ' ' 38 Cyc. 21. But, as we ourselves have held, such possession by one coten- ant is only prima facie that of the other, since there may be an ouster of one cotenant by another. Coogler v. Rogers, 25 Fla. 853, 7 South. 391. (5) It must be admitted that the points presented B. p. C— 11 162 RUSSELL V. STICKNET •npon this appeal are not free from difficulty. There is more or less conflict in the authorities as to when the laches of a cotenant will defeat a proceeding instituted by him for a partition of land. See 30 Cyc. 190, and authorities cited in notes. We would also refer espe- cially to the exhaustive note to the case of Joyce v. Dyer, beginning on page 609 of 109 Am. St. Eep. We shall not enter into a discussion of this question. The facts and circumstances of each individual case must necessarily largely determine the answer. In the peculiar facts and circumstances of this case, we encounter the principal difficulty in reaching a conclusion. It is doubtless true, as was held in Thomas v. Garvan, 15 N. C. 223, 25 Am. Dec. 708: "A proceeding for partition at law cannot take place, except there be a common possession, and a common possession is always implied from a conunon title, until the contrary be shown. But, if an actual ouster be made by one tenant in comm.on with his co- tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety. The sole enjoyment of the property by one of the tenants is not, of itself, an ouster, for his possession will be under- stood to be in conformity with right; and the possession of one tenant in common, as such, is in law the posses- sion of all the tenants in common. But the sole enjoy- ment of property for a great number of years, without claim from another, having right and under no disability to assert it, becomes evidence of a title to such sole enjoy- ment ; and this, not because it clearly proves the acquisi- tion of such a right, but because, from the antiquity of the transaction, clear proof cannot well be obtained to ascertain the truth, and public policy forbids a possessor to be disturbed by stale claims, when the testimony to meet them cannot easily be had. Where the law pre- scribes no specific bar from length of time, 20 years have been regarded in this country as constituting the ANSWEftS 169 period for a legal presumption of such facts as wiU sanc- tion the possession and protect the possessor." (6) In the instant case, the proofs do not show that there was ever any actual ouster by the defendant, Stick- ney, of the complainants or of their ancestor, but only that from the date of the deed by the defendant to Sil- vanus Pinder, on the 12th day of May, 1882, until his death on the 28th day of February, 1891, Pinder never exercised any acts of ownership over the lands, or de- manded any accounting for the rents and profits; and that neither had his heirs at law done so since his death. We cannot get our consent to hold that this showing of laches is sufficient to destroy the legal title which the complainants and the two infant defendants had to an undivided one-half interest in and to the land in question, or to bar their right to have the same partitioned. No authority directly in point is cited to us, and we have been unable to find any. We think that the decree should be reversed, and the case remanded for such further pro- ceedings as the parties may be advised, and as will be in accordance with this opinion. 49. NEWMAN v. MOODY 19 Fed. Rep. 860 Paedee, J. : The demurrer filed by defendant contains 23 counts, but practically makes but three points: (1) That the receiver had not been previously authorized nor instructed by the court to institute the suit; (2) that the proceedings were summary, and not by regular bill and subpoena; and (3) the remedy should have been by action at law. The amended answer states the same defense as the original, but more explicitly, and, unlike the original, is properly verified. The brief filed by defendant is de- J64 1«!WMAN V. MOODY voted to sustaining the points made by demurrer, of which it is sufficient to. say that the demurrer was filed too late, being filed without leave, and after answer and submission. By answering, defendant waived all objec- tions to the form and modes of proceeding. The sole point made by counsel for the receiver is that the decree was final with the April term, 1882, and be- yond the power of the court to vacate at the subsequent term. If it was a final decree and appealable the point is well taken. Cameron v. McEoberts, 3 Wheat. 593 ; Mc- Micken v. Perin, 18 How. 507. "No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court. But, if no appeal lies, the pe- tition may be admitted at any time before the next term of the court, in the discretion of the court." Equity rule 88. I doubt if the decree was a final decree. It in effect only changed the custody of the fund in controversy. It was yet to be disposed of by the court, and if it had been paid over to the receiver, could, if justice required, have been turned back to the defendant. As it was not paid over, it was within the discretion of the court to re- examine the question as to whether it should be paid over. But as no appeal lay from the decree to the supreme court, Tmder the equity rule referred to, it was within the discretion of the court to allow a rehearing before the end of the next term, even if the decree was final. On the merits of the case equity and justice are with the de- fendant. Aside from the answers and exhibits attached, there is no evidence adduced. From the answers and exhibits it appears that the defendant, as administrator de bonis non, with the will annexed of Jacob V. Johnson, came into possession of the sum of $541.25, long prior to the ap- pointment of plaintiff as receiver in the case of W. H. Johnson v. W. R. Alexander, by this court, and that prior to notice he (defendant) had fully disbursed the same ANSWERS 166 under orders and judgments of the probate court of Franklin county, by wbicJi court he was appointed admin- istrator, and with whicJi court he has settled his accounts. On what equity he can be compelled to pay again has not been pointed out. The former decree was based on the ground "that said Moody has disbursed the same with- out authority of law, and contrary to the orders of this court." This does not appear at this time, but the con- trary is fully established. Moody was not a party to the main case, and he disbursed the money under orders of the court which appointed him administrator long prior to notice from this court. A decree will be entered at the next term, vacating the decree entered herein at the April term, 1882, and dis- missing all proceedings against Amos L. Moody, with costs. 50. TEAVEES v. EOSS 14 N. J. Eq. Rep. 255 The Chancelloe: The defendant, having filed his answer to a bill for foreclosure, the complainant moves to strike out the answer as frivolous and impertinent. If the motion prevails, it must be upon the ground that the paper purporting to be an answer, and filed as such, is no answer. If the paper filed as an answer is not filed as required by the rules of court, or is not sworn to, or is in any other respect irregular, the court may treat it as no answer, and direct it to be suppressed or taken from the files. So if it contain no answer to any part of the complainant's bill, it will be ordered to be taken from the files. But if it be an answer, however insufiicient, the court will not dispose of it upon summary motion, but leave the party to his exceptions. In Tompkin v. Lethbridge, 9 Vesey 178, the answer was 166 TRAVERS V. ROSS clearly evasive, giving no information. A motion was made to take it from the file, on the ground that it was so clearly illusive that the court might say it was no answer. The motion was denied. Lord Eldon said, it is very dif- ficult to lay down as a rule how much should, and how much should not be regarded as an answer, and not leave it to be matter of exception. But he intimated, if this should happen again, a general order should be made to prevent it in future, to the effect that whenever it can be shown that the answer is a mere delusion, it should be understood to be the practice to take it off the file. In Thomas v. Lethbridge, 9 Vesey 463, a motion was made to commit the defendant for contempt in putting in an answer clearly evasive. Lord Eldon intimated his opinion, that if an answer appears upon the face of it no- toriously evasive without explanation, it ought to be con- sidered an attempt to baffle the court, and make all its proceedings ridiculous. He nevertheless held, on con- sultation with the master of the rolls, that however proper it might be to make such a regulation for the fu- ture, it was impossible in that case to treat the party as guilty of a contempt, and the motion was denied. In Smith v. Serle, 14 Vesey 415, the same learned Chan- cellor said, that the decision made by him in Tompkin V. Lethbridge was made upon the authority of a decision of Lord Thurlow, who held that if the defendant merely denied combination, that would not have been an answer, but by denying combination, and saying something about some allegation in the bill, though altogether immaterial, it was an answer. The Chancellor further said, in the case before me, I felt myself bound by that authority, but I am so unwilling to give any countenance to such an abuse of the practice, that I think I shall never be in- duced upon both these authorities to make such a de- cision again ; and if such an attempt should be repeated shall hold it to be no answer. In Newman v. Gray, 10 Price 117, an answer to amend- ANSWERS 1G7 ments, (consisting only of a denial of a statement in the bill, which the defendant had already in effect answered in his first answer), was ordered to be taken off the file. In the case of Marsh v. Hunter, 3 Mad. 226, the Vice Chancellor, Sir John Leach, upon the authority of the opinion of Lord Eldon in Tomkin v. Lethbridge (not ad- verting to his later opinion in Thomas v. Lethbridge) denied a motion to take an answer off the file because it was delusive, answering only a few facts stated in the bill. In Olding v. Glass, 1 Younge & Jervis 340, the court refused to order an answer to be taken off the files, on the alleged ground that it was illusory, the defendant merely stating that he had no knowledge of any of the matters in the bill mentioned, and left the plaintiff to except. In 2 Daniells ' Prac. 920 it is stated that the result of the cases appears to be, that although the court will re- move from the file any document which purports to be an answer, but is not so in reality, yet if any part of such document does entitle it to fill the character which it as- sumes, although it is an answer to only one fact, the court will not take upon itself to decide whether it is evasive or mot, but will leave the plaintiff to except to it for insuf- ficiency. I incline to think the fair result of the cases, and cer- tainly the true principle is, that if the answer is so evasive that it is obviously a mere delusion — if there is no answer of any of the material facts stated in the bill, and no reason assigned for not answering them, it will be considered as no answer, and the court will order it to be taken from the file. Phillips v. Overton, 4 Hay- wood 292; Cooper's Eq. PI. 313; 1 Barb. Ch. Pr. 169. Giving to the plaintiff the benefit of the principle thus stated, it is clear the case now before the court is not within its operation. However open it niay be to excep- tions on the ground of insufficiency or impertinence, or 168 TEAVEES V. ROSS both, it cannot be treated as no answer. There is a denial of combination, and an answer to some of the material facts of the bill. If it be an answer, however defective, the complainant must either file exceptions or a replication, or set down cause for hearing upon bill and answer. Nix. Dig. 91, Sec. 28. If the answer sets up no legal defense, and the material facts are all admitted, the proper course is to set the cause down upon bill and answer, or if more evidence is requi- site to sustain the complainant's case, to take issue upon the answer. If the insufSciency or impertinence of the answer is such as to render it necessary to supply the de- fect by a more full answer, or to be relieved from the im- pertinent matter, the proper remedy is to file exceptions. It must be borne in mind that the question is not wheth- er the answer is lawful or not. That question cannot be examined upon this motion, much less is it necessary that the answer should contain a valid defense to the bill of complaint. No demurrer lies to an answer in equity. There are one or two early cases where it was resorted to. Williams v. Owen, 1 Chan. Cas. 56; Wakelin v. Mal- thal, 2 Chan. Cas. 8; Wyatt's Prac. Eeg. 162. But its propriety was doubted then, and in modem practice it is never used. In equity, a demurrer is only a mode of defense to the bill. It is never resorted to to settle the validity of a plea or an answer. Such method of procedure is not recognized in the books. Barton's Suits in Eq. 96; Mitford's PI., by Jeremy, 107; Cooper's Eq. PI. 110 ; Story's Eq. PL, ch. 9 ; Lube's PL 46, 315, 355 ; Hinde's Pr. 146; Blake's Pr. 107; 1 Daniells' Pr. 598; 4 Bouvier's Inst., Sec. 4215; Eaymond v. Simonson, 7 Blackford 79 ; Thomas v. Brashear, 4 Monroe 65. A demurrer to a bill in equity, like a demurrer at law, may by the express term of the statute, if it appear to be frivolous or intended for the mere purpose of delay, be overruled as frivolous. Nix. Dig. 634, Sec. 117. ANSWERS 169 The same practice would perhaps prevail independent of the statute. Bowman v. Marshall, 9 Paige 's E. 78. But the practice does not extend to the case of an an- swer. I find no case in this court where an answer has been suppressed or ordered to be taken from the file on the ground of its insufficiency or frivolousness, except the case of Stout v. Evans, decided September, 1858, which was referred to upon the argument. That case appears to have been decided upon an ex 'parte hearing, and prob- ably under an impression that the answer was filed out of season. The motion must be denied. 51. MOORS V. MOOES 17 N. E. 481 Mk. Justice Woods: The plaintiff, in this suit, seeks to be relieved against a suit commenced at law by the defendant upon a promissory note of $1,025.52, signed by her, and delivered to him on the 18th day of October, 1840. The grounds upon which she claims the inter- position of this court are, without any doubt, sufficient to entitle her to the rehef sought, if the evidence is suf- ficient. She states, in substance, that she had a settlement with the defendant on that day, relating to an item of rent, which he owed her, and an item of money, paid by him for taxes which she owed him, and a claim which was at first disputed, but afterward admitted by her, of $25, which he called on her to pay him for wood he had fur- nished her father ; that the balance due to him upon the adjustment of these items was about $10, for which she was willing to give her note, and for which she intended to give her note ; but that, trusting her brother to write 170 MOORS V. MOOES it, she, through his fraud, had been made to sign a note for $1,025.52, the subject of the controversy. She states that she did not, at the time, owe him any further or other sum, and interrogates him as to whether there were any other demands or claims considered or included in the settlement, and if so, what? Whether there were any claims presented for money borrowed, and if so, what? The answer of thp defendant was quite full, and shows that he held two notes against the plaintiff at the time of the settlement, from the aggregate amount of which the small balance of accounts due her was deducted, and the note in question for the remainder, and that the old notes were given up to her to be cancelled. This allegation in the answer does not derive direct support from evidence; but, on the other hand, the plaintiff has produced one witness, who was present dur- ing the interview, and who appears to have had some knowledge of the business that was in progress, and who did not hear any mention made of the old notes, or of money borrowed by the plaintiff of the defendant on former occasions. This was Friend Moors. His wife was also present a part of the time, and, al- though she heard conversation about rent and taxes, and wood, did not learn that the settlement compre- hended the more important matters of the notes. The testimony of these witnesses tends undoubtedly to sustain the allegations in the bill ; that the three items of mutual account, which are described in it, were all that were comprehended in the settlement, and that the small balance resulting formed the only consideration for the note. But that testimony has to be considered in connection with the defendant's answer, which, in this material point in the controversy, is in direct conflict with the al- legations of the bill, and the question arises as to the weight that is to be allowed to the answer. The general rule of law is quite clear, that when the answer controverts a material allegation of the bill, no decree can be made for the plaintiff, unless the answer in that particular is overborne by evidence that is more than equivalent to the testimony of one witness. 2 Story's Eq., sec. 1528; Dodge v. Griswold, 12 N. H. Eep. 577. In order that the answer may have that force, it is necessary that the statement of the bill which it contro- verts be a material statement; that is, that it be essen- tially a part of the plaintiff's case, and that the answer, so far as it relates to the statement, contain such mat- ters only as the defendant is required by the exigencies of correct pleading to embrace in his answer. Or, in other words, that it go to the point of discovery, to which the plaintiff is entitled, by the case that he has stated; for it is clear that a statement which the defendant vol- unteers is entitled to no such consideration as is ac- corded to an answer strictly responsive to, and clearly demanded by, the case of the plaintiff. The plaintiff's case, as stated by the bill, is, that the note in controversy was obtained by fraud ; that she did not intend to give such a note ; that no such sum was due, and that no other demands than those which she enu- merated were embraced in the settlement. Now it is sometimes a question of difficulty to settle how far a defendant is required to go in his answer, and how far he may protect himself by saying that it is as particular as the plaintiff's question. Story's Eq. PI., sec. 855, note. But one principle, well stated, and stated in the books in the various forms, is this : that a simple denial of the plaintiff's case literally, as stated, is wholly insufficient. He must meet it with full and circumstan- tial denial, and not with a negative pregnant, which, while it controverts the case in the precise terms in which it is stated, is perfectly consistent with one not substantially differing from it. Story's Eq. PL, sec. 172 MOOftS V. MOORS 855 ; Woods v. Morrill, 1 Johns. Ch. 103. As, if lie be charged with the receipt of a sum of money, he must deny that he has received that sum, or any part thereof, or else set forth what part he has received. If to that part of the biU which stated what items were comprehended in the settlement, the defendant had said no more than that other items were comprehended, the plaintiff-might still have had substantially the case made by the bill, and the answer yet have been true. To that part of the bill which states that no more than the small sum named was due, the defendant was bound to answer, not only how much was due, but, to the best of his ability, upon what account it was due. Such discov- ery is important to enable the plaintiff to amend her case, or to maintain it by disproving the consideration, which, of course, it is the more difficult to do before the defendant has been called on to specify it. These obvi- ous purposes of the discovery would have been defeated by a less explicit answer. The answer, therefore, in discovering what matters were embraced in the settlement, contained no more than the defendant was bound by the statement of the plain- tiff's case to set forth, or was, in other phrase, strictly responsible to the bill. Although tending to sustain a material statement of the bill, we cannot say that the testimony of Friend Moors and his wife is in conflict with the answer in the particulars to which they in common relate. Had those witnesses participated in the transaction; had they, or either of them, had occasion or an interest to know its details, or had they even been so situated that they could have known them with reasonable certainty, the case would have been different. As it was, it is not unreason- able to suppose that they might have heard more of the smaller items, that required and actually engaged dis- cussion, than of the greater matters of the notes and interest, wHeli might have been adjusted with fewer words, because of a nature to admit of no question. It is plain that all that is stated in the answer, on the subject of the settlement, might have been strictly true, and yet the facts stated have wholly escaped the notice of both the witnesses. However their testimony, there- fore, may tend to detract from the credit that might otherwise be due to the answer, it ought not to be consid- ered as coming in direct conflict with it. The answer is the testimony of one directly to a fact, about which it is scarcely possible that he could have been mistaken, or that he could have forgotten. The testimony of the wit- nesses, on the other hand, is only to the point that they, did not observe a transaction that it is certainly possible might have taken place without their observation. Nor can we say that the case of the plaintiff derives material support from considering the other evidence which has been adduced by either party. No part of it goes to the point of sustaining the allegations of the bill against this denial in the answer, of the very essence of the plaintiff's case, even if we could say that the pre- ponderance was in favor of the plaintiff, on the second- ary matters on which it bears. The conclusion is, that the plaintiff's case, having been denied by the answer, and not sustained by sufficient evidence, no decree can be pronounced in her favor. Bill dismissed without prejudice. 52. SMITH V. POTTER 3 Wis. 432 Justice Cbawfoed : We have been unable to find any- thing in this cause to justify the circuit court in dismiss- ing the bill. The complainants filed their bill for the foreclosure Iti SMITH V. tO^i'Eft of a mortgage given to them by the defendant, to secure the performance of the condition of a certain bond. By this bond the defendant undertook to pay different sums of money to different persons, to whom the complainants, the obligees in the bond, were indebted. The defendant was required to answer the bill, but an answer under oath was waived, and accordingly he filed his answer, admit- ting the execution of the bond and mortgage, but insist- ing that subsequent to the date of the bond, one of the complainants, Schooley, acting for himself and his co- obligee. Smith, entered into another agreement with the defendant, which, after reciting a number of debts due and owing by the said Smith, Schooley & Co., almost identical with those mentioned in the bill of complaint, and in the bond, contains the following: "And I do hereby agree, that if the said Potter shall pay other debts of the old companies not mentioned above, that they shall be so much in extinguishment of my debt against him, secured by bond and mortgage." To this answer the complainants filed a replication, and the cause was brought to a hearing on bill, answer, replication and proofs. The rule in equity is well understood, that an answer which in responding to the bill denies all or any of the material facts alleged therein, will, so far as it is so responsive, prevail, unless the bill is sustained by two witnesses, or one witness, and strong and clear corrobo- rating circumstances ; but where the answer sets up new matter not merely responsive, but by way of avoidance or defence to the allegations of the bill, the answer in respect to such new matter is not evidence for the defendant, but must, be sustained by extrinsic evidence. Vide Story's Eq. PI., sec. 849, a ; Walton et al. v. Cody, 1 Wis, R. 420 and cases there cited. In a chancery proceeding, however, an answer must, with certain familiar exceptions, be un- der oath, unless the complainant thinks proper to relieve the defendant from swearing to the correctness and ANSWERS 175 truth of his answer. Vide Cooper's Eq. PI. 325, and where, as in this cause, an answer not under oath, is filed, it is important to consider the effect to be given to such an answer. A defendant in chancery, who, under oath, gives a re- sponse to any particular fact or facts in the bill, thereby furnishes evidence in his own favor, because the com- plainant has appealed to the conscience of the defendant, and unless the statement of the defendant is disproved by more evidence than that of one witness in support of the bill, the oath of the defendant, which is made evi- dence in this cause, is not overcome by the oath of a single witness. There must be a preponderance of proof in favor of the complainant irrespective of the allega- tions contained in his bill, in order to entitle him to re- lief, when the defendant under oath denies the material facts on which the complainant grounds his claim to the relief sought. Where, however, the answer is not made under the sanction and solemnity of an oath, the same effect is not, and ought to be given to it, for in such a case, it is the unverified statement of the defendant which may be insufficient or evasive, and yet it seems not to be sub- ject to exceptions on that account, and in every thing in which it affords an answer in denial of complainant's averments, it ought only to be received and allowed to operate against the bill so far as to put the complainant to prove the averments denied, and in respect to any thing which is not strictly responsive to the matters set up in the bill, but stated as new and independent facts constituting a defense, the defendant should be required to establish such facts by competent proof. In the case of The Union Bank of Georgetown v. Geary, 5 Pet. 99, Mr. Justice Thompson says: "Although the reason of the rule which requires two witnesses, or cir- cumstances to corroborate the testimony of one, to out- weigh the answer, may be founded in a great measure upon the consideration that the complainant makes the 176 SMITH V. POTTER answer evidence by calling for it, yet this is in refer- ence to the ordinary practice of the court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed as matter of evidence, when unaccompanied by an oath, and indeed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a de- nial of the allegations in the bill, analogous to the gen- eral issue at law, so as to put the complainant to the proof of such allegations." The rule which the supreme court of the United States, in the case just cited, inclined to, was distinctly enun- ciated by Chancellor Walworth in Bartlett v. Gale, 4 Paige 503. In that case the defendant's counsel claimed that the whole answer (which was not required to be made under oath), should be taken together as evidence in his favor, but it was held that "when an answer on oath is waived, although as a pleading the complainant may avail himself of admissions and allegations in the answer which go to establish the case made by the bill, such answer is not evidence in favor of the defendant for any purpose." Judge Story says that an answer, when under oath, is evidence for the defendant, if responsive to the alle- gations in the bill (Eq. PL, sec. 875, a), but in relation to the effect of an answer not under oath, he says : ' ' This point does not seem definitely settled. It may perhaps be true, that it is not entitled to all the privileges of an answer under oath. But it is by no means clear that it is not evidence in favor of the defendant as to all facts, which are not fully disproved by the other evidence and circumstances in the case, and that it ought not to pre- vail where the other evidence is either defective, ob- scure, doubtful or unsatisfactory. He also suggests a doubt whether an answer not under oath should be waived, and at the same time the complainant be per- mitted to avail himself of the admissions of the answer, ANSWERS 177 without giving to its denials the like effect as evidence in favor of the defendant. Viewing the answer not under oath, as a mere pleading, whatever it admits would require no proof, because when a party admits the truth of anything by his written plead- ings, there can be no necessity to prove it ; but if he trav- erses or denies any thing, it becomes the party relying on the matter to establish it by evidence if it be ma- terial. The difference, however, when the denial of the an- swer is under oath, or not under oath, consists in the quantum or amount of evidence. In the first case it re- quires two witnesses, or one witness and clear corrobo- rating circumstances to overcome the answer, and in the second case, the evidence of one credible witness would suffice to establish the averments of the bill denied by the answer. The learned commentator cites and relies upon the opinion of Lord Eldon, in Curling v. Towns- hend, 19 Ves. 628, where his Lordship declared that the court had the same authority from the defendant to look at the admissions or denials in the answer, when put in without oath, as if it had been. under oath. There can be no doubt that in relation to his admissions, the defend- ant authorizes his answer to be used against him in the same manner as if it were under oath, but with great deference we think it is far otherwise in regard to the defendant's denials. Taking the rule as laid down by Chancellor Walworth, and referred to with approbation by the supreme court of the United States in The Union Bank of George- town v. Geary, in connection with the language cited from Story's Equity Pleadings, there is but little difference observable, for even in an action at law, when the general issue is pleaded, if the evidence on the part of the plain- tiff is "defective, obscure, doubtful or unsatisfactory" he is not entitled to recover. So far then as the pleadings in this cause are con- E. p. C. — 12 1*78 SMITH V. POTTER cerned, and the material parts of the complainant's bill, namely, the execution of the bond and mortga^ge, and the delivery thereof to the complainants, are admitted by the answer, and to the new matter insisted upon by the defendant, namely, the making of the subsequent agree- ment and payment of the debts due by the complainants, in pursuance of such subsequent agreement, the com- plainants filed their replication, and thereby imposed the necessity on the defendant to sustain such new mat- ter by proof. It appears that by the consent of the parties, a com- missioner was appointed to take proofs, and that not- withstanding notice of the time and place of taking the proofs, the defendant did not appear or offer any evi- dence, and the only proofs produced before the commis- sioner and returned by him, consisted of the bond and mortgage executed by the defendant. Subsequently, by consent, the parties appeared before the commissioner, and the defendant offered to prove the value of certain lots in the village of Taycheedah, on the 22d day of February, 1851, which lots had been sold by the com- plainants to the defendant. And to secure a portion of the purchase money of which, the bond and mortgage in question had been given. This evidence was objected to as irrelevant, and sub- ject to such objection, it was agreed by the parties that the lots mentioned were each worth the sum of fifty dol- lars. We also find among the papers two affidavits made by the defendant, one of which was filed in the circuit court two days before the date of the decree, and the other on the day on which the decree was made. The purport of these affidavits is that the defendant purchased from the complainants a certain lot which they represented to have upon it a valuable steam mill, which representation was untrue, and that the bond and mortgage had been given to secure the payment of a part of the price en- ANSWERS 179 gaged to be paid for the lot, and that the amount re- maining unpaid on the bond and mortgage was four hun- dred dollars. There is also an affidavit of Mr. Wood, who was the solicitor who prepared the defendant's an- swer, stating that before preparing the answer, he had been informed by the defendant of the false representa- tions made to him by the complainants in the purchase of the lot aforesaid, but that from a want of sufficient knowl- edge of the facts, he was unable to set them forth in the answer. These affidavits, it is needless to say, could answer no purpose as evidence in the cause, and we have no means of knowing the object of their introduction. They may have been filed in support of an application for a continuance, or for some other purpose, but the scanty "docket entries" attached to the original papers re- turned to us afford no information on the subject. The only legitimate proof in the cause, was confined to the bond and mortgage, the execution of which had been admitted in the answer. The effect of this evidence was to establish a prima facie case for the complain- ants, and there is nothing constituting a defense shown by the defendant. The bond given in this case was not a mere bond of indemnity, for if it had been then it would have been incumbent on the complainants to show that they had been damnified and the condition broken, thereby giving them a right to pursue their remedy; it was a bond for the payment of money, and the onus of showing a performance of the condition of his bond rested upon the defendant. This is abundantly sus- tained by the authorities. Vide Holmes v. Rhoade, 1 Bos. & Pul. 638; Hodge v. Bell, 7 Durn & E. 93; 1 Saund. 116, note 1 ; Thomas v. Allen, 1 Hill 145 ; Gray v. Gardi- ner et al., 17 Mass. 188. It is useless to say more than that the complainants are entitled to the usual relief in cases of this kind, and in order that it may be ascertained how much remains to 180 HOLT V. DANiBLS be paid by the defendant, and that the proper proceed- ings may be had in the circuit court, the decree below is reversed, and the cause remanded for further proceed- ings. 53. HOLT V. DANIELS 61 Vt: 89 PowEBS, J. : The defendant, by a demurrer, interposed into his answer (as a part thereof), raises the question of the jurisdiction of the court to entertain the bill. The propriety of this mode of pleading has been considered of late, and the effort has been to adhere to the rules of pleading laid down in the text books and best considered cases. The respective functions of a demurrer and an answer are entirely distinct and one cannot take the place of the other. The answer serves the double purpose of plead- ing and evidence. So far as it sets up matter as a bar it is a pleading. So far as it serves the complainant's purpose by discovering facts, it is a deposition. If the defendant would waive making an answer, he may demur or plead. The object of a demurrer or plea, as a general rule, is to excuse the defendant from answering the bill on its merits. Both are dilatory pleadings, a demurrer being proper if the fault of the complainant 's case is ap- parent from the face of the bill, and a plea being proper if the fault must be shown by bringing matters dehors upon the record. Accordingly it has been generally said in the books that a party cannot demur or plead and an- swer the same matter, but he may demur to one part of the bill, plead to another and answer to another. If he answers to the same part that he demurs to, his answer will overrule his demurrer. The rule is the same at law. 1 Chit. PI. 512. The reason for the rule is thus given by Gilbert, Forum Eom. 58, in speaking of dilatory defenses, ANSWERS 181 "all these pleas with us are to be put ante litem con- testam, because they are pleas only why you should not answer, and therefore if you answer to anything to which you may plead, you overrule your plea, for your plea is only why you should not contest and answer, so that if you answer, your plea is waived." This rule is laid down everywhere as expressive of the true function of a demurrer or plea in its relation to the answer. Mitford (Tyler's Ed.) 304, 305, 411, Beames' PI. in Eq. 37; Wha- ley V. Dawson, 2 Sch. & Lef. 871 ; Jones v. Earl of Straf- ford, 3 P. Wms. 81 ; Oliver v. Plate, 3 How. 412 ; Clark V. Phelps, 6 Johns. Chan. 214; Wade v. Pulsifer, 54 Vt. 71. Incorporating a demurrer into an answer is often done and no violation of the rule is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents instances may be found of demurrers and pleas incorporated into answers, but in each case the an- swer was provisional, the plea ending with a demand for judgment, and then proceeding, "and if this defendant shall by order of this honorable court be compelled to make any other answer to the said bill, etc., then and not otherwise the defendant saving, etc., answereth and saith," going through the answer as if no plea had been put in. The more modern practice, however, and the one sanctioned by Mitfdrd and other standard writers, is to file each pleading by itself. But in all cases the de- murrer should be brought to a hearing before the cause is tried on its merits. Wade v. Pulsifer, 54 Vt. and cases there cited. In this case it is urged that a court of equity has no jurisdiction, as a court of law could give the orator an adequate remedy. This objection, if valid, is apparent upon the face of the bill and so is the subject of a de- murrer, and if it be sustained the case is at an end. But an objection to the jurisdiction of the court, if the court has general jurisdiction of the subject-matter, will not 182 HOLT V. DANIELS be entertained unless it is brought to a hearing before the expense of a trial upon the merits has been incurred. In 1 Dan. Chan. Prac. 579, it is said that if the objection to the jurisdiction is not taken seasonably by plea or de- murrer and the defendant enters into his defense at large, the court having the general jurisdiction wiU exer- cise it. To the same effect are the cases Cong. Society V. Trustees, etc., 23 Pick. 148; Underbill v. Van Cort- landt, 2 Johns. Chan. 369; Bank of Bellows Falls v. R. & B. R. R. Co., 28 Vt. 470. Indeed the rule in equity ap- pears to be the same as at law. A plea to the jurisdic- tion at law is said to be analogous to a plea in abatement and is, the earliest in the order of pleading, and if the general issue be pleaded the jurisdiction is confessed. So in equity it is a dilatory objection that is waived by an answer. In equity, as at law, if the court discovers that under no circumstances has it jurisdiction in the premises, it will, at any stage of the proceedings, dis- miss the cause sua sponte, if no objection is raised. In the case at bar a court of equity has jurisdiction. The sale of the colt to the orator with a lien reserved to the defendant amounted to a mortgage of the colt. The orator all the time had an equity of redemption and after condition broken might sustain a bill to redeem as ^vas held by this court in Blodgett v. Blodgett, M. 48 Vt. The facts appearing from the master's report show that the question whether the defendant's lien upon the colt had been extinguished by payment in full depended upon an accounting of the farm dealings. Courts of equity have concurrent jurisdiction with courts of law in all cases where the common law action of account would lie, Fonblanque Eq. 1, 10; Cooper Tr. 26; Bispham Eq. 484; Ludlow V. Stenard, 2 Caine's Cas. in Error 1; Leach v. Beattie, 33 Vt. 195, and in many other cases where the accounts are intricate and a discovery is demanded. In the action of trover brought by the defendant against the orator, no offset arising out of the farm dealings would AMSWBftS 183 be available to the orator, and unless he could make out full payment of the lien, lie would be cast in the suit. But in equity on an accounting he can have applied all the indebtedness in his favor that he can establish, and if this is insufficient to extinguish the lien, the court can give him a day of redemption. In taking the accounts of the parties, the master finds that items 42 and 43 in the defendant's specification accrued from false representations of the defendant. These items should be disallowed, as in equity no one can be made a debtor by fraud. The decree is reversed and the cause remanded with a mandate to enter a decree for the orator to recover the sum of $42.98 reported by the master, with interest there- on from March 1, 1884, and that the further prosecution of the suit at law in favor of the defendant against the orator mentioned in the pleadings be perpetually en- joined. XIII EXCEPTIONS TO ANSWERS 54. LANGDON v. GODDARD 3 Story 13-25 Statement of Facts : This cause was heard upon ex- ceptions to the answer of defendant Goddard to com- plainants' bill. The first exception was that a certain allegation on the ninth page of the answer was imperti- nent, and should be stricken out. The allegation in ques- tion was to the effect that the testatrix, Elizabeth Sewall, executed a codicil to her will on August 21, 1838, being moved thereto by the importunities of complainants, and charging the complainants with, in effect, dictating the codicil. The will and codicil in question had, prior to the filing of the answer, been duly adlnitted to probate by the proper court. The second exception was to a state- ment that he, defendant, had sought to procure Mr. Emerson to effect a settlement of the disputes between him and complainants, and that he and Emerson had agreed upon terms, to which, however, complainants would not afterwards adhere. This statement, it was in- sisted, was impertinent. The third exception was that defendant had not, to the best of his knowledge and belief, answered a certain in- terrogatory of plaintiffs. Stoey, J. : I am of opinion that all the exceptions to the answer are well taken, and ought to be allowed. The first exception turns upon the allegations in the an- swer therein referred to, by which an attempt is made by a side wind to impeach the bona fides and due execution of the codicil to the will of Mrs. Sewall, and by impliea- 184 EXCEPTIONS TO ANSWERS 185 tion to insinuate that it was procured by fraud and' impo- sition. Now, it is well known that the courts of probate have a full and exclusive jurisdiction, as well in New Hampshire as in Maine, over the probate of wills, and that their decree, affirming the validity of a will or codicil, and allowing the same, is conclusive upon the subject-matter, and is not re-examinable elsewhere. The present codicil has been duly admitted and allowed by the probate courts of both states. The allegation of the answer here excepted to is, therefore, at once imperti- nent and immaterial, and endeavors to cast a shade upon the transaction, which is not justifiable or excusable. It is not a matter which can be filed in controversy in the present suit, or admitted to proof. The second exception is to the allegation in the an- swer setting up an attempted settlement and arrange- ment, of the nature and terms of which no account is given, by the defendant with the plaintiffs, through the means of a professional friend, which was not accepted or adhered to by the plaintiffs, and therefore failed of its purpose. What is this but to stuff the answer with immaterial and impertinent suggestions for the purpose of giving a false gloss and coloring to the controversy? Besides, as the nature and terms of the proffered set- tlement and arrangement are nowhere stated, it is im- possible for the court to see what possible bearing it could properly have upon the cause. The third exception is the insufficiency of the answer to the eighth interrogatory propounded by the bill, and states the very words of that interrogatory. That inter- rogatory undoubtedly was intended to refer to the fol- lowing allegation in the bill, viz.: "Your orators fur- ther say that thereafterwards the said Elizabeth fre- quently called upon the said Goddard to refund to her the amount of the said notes so sold by her to him, or to return the same, and that the said Goddard repeat- 186 LANGDON V. GODDARD edly promised so to do. That on the 20th day of August, 1838, the said William Groddard prepared with his own hand an instrument purporting to be a codicil to the will of said Ehzabeth, and procured the said Elizabeth to sign the same, therein and thereby bequeathing to him the aforesaid notes of Floyd and Harris, and also all sums of money due from him to the said Elizabeth, which codicil was so signed by the said Elizabeth by induce- ment of the said Goddard, and by reason of the confidence subsisting between the said Elizabeth and the said God- dard, and was thereafterward revoked by the said Elizabeth, which codicil was, after its execution, carried away by the said William, and is now in his possession. ' ' It is certainly not as pointed, full and precise as it ought to be to meet all the stress of the allegations of the bill. It does not interrogate as to the present possession by the defendant of that codicil, or as to what has become of it, and when he last saw it, and what were the exact purport and words thereof; nor does it call upon the defendant to produce it. Still, however, it is sufficient to call upon the defendant for a fair and full answer to the plain import and objects thereof. I cannot but con- sider the answer put in to this point as inexplicit and evasive, if it does not deserve the stronger imputation of being disingenuous. I shall therefore direct that the defendant put in a more full and direct answer to the interrogatory and allegation in the bill, applicable thereto, so that the justice of the case may on this point be fully presented to the court. I shall also give leave to the plaintiff to put additional interrogatories to the defendant applicable to this same allegation, so as to compel a direct and positive disclosure of the facts ap- pertaining thereto. The defendant is to pay the costs of the hearing upon and allowance of these exceptions, which I shall direct to be taxed at $10. XIV CROSS-BILLS 55. NEAL V. FOSTER ET AL. 34 Fed. Rep. 496 Deady, J. : The original bill in this case was filed on July 1, 1886, against James H. Poster, John A. Craw- ford, William Crawford, Ashby Pearce, John E. Balti- more, J. L. Tiles, E, Walden, and W. H. Groltra, and the object of it was to have certain conveyances of real prop- erty situate in Albany, Linn county, theretofore made by Foster to the Crawfords and Ashby Pearce, set aside as fraudulent. The other parties, including Goltra, were made defend- ants in the bill, because they were, or claimed to be, judg- ment creditors of Foster's, and in their answers they set up their claims accordingly. The Crawfords and Foster answered the bill, denying that the conveyances were fraudulent. The plaintiff replied, and on October 7, 1886, the case was referred by the circuit judge to a mas- ter, who on August 29, 1887, filed his report of the evi- dence taken by him, and also his conclusion of fact and law thereon, as directed by the order of reference. In his answer Goltra states that in February, 1886, he obtained judgment in the state circuit court for the county of Linn against Foster on divers claims for the sum of $16,118.84, for which he claims a lien on the prop- erty in question. On November 14, 1887, the defendants, Foster and John A. and William Crawford, had leave to file what is styled therein "a supplemental cross-bill," in which it is alleged as a bar to Goltra 's claim to enforce his judg- 187 188 NEAL V. POSTER ET AL. ment against the property in question ; that on February 10, 1886, he commenced a suit in the state circuit court aforesaid against the plaintiffs in the cross-bill to enforce the lien of his judgment against the property in question, on the ground that the conveyances thereof by Foster to the Crawfords were fraudulent, because made with in- tent to defraud Goltra and other creditors of Foster ; that the defendants in said suit answered the complaint, deny- ing the allegations of fraud, and averring that the con- veyances were made in good faith, and for an adequate consideration; that Goltra filed a reply to this answer, and upon the issue thus raised the cause was, on July 9, 1886, heard by said court, which found that the convey- ances in question were made to the Crawfords in good faith, and for an adequate consideration, and decreed that the bill be dismissed, and the defendants recover their costs; that Goltra appealed from said decree to the supreme court of the state, where, on April 11, 1887, said appeal was, by the order of said supreme court, dismissed at the cost of the appellant, whereby the decree of said circuit court of July 9, 1886, remains in full force and effect, and is now binding between the parties thereto. On December 31, 1887, Goltra demurred to the cross- bill. On the argument the objections made to the filing of the bill when the application was made therefor were restated, and insisted upon. The point was also made that the cross-bill does not state the facts of the original bill. The bill states the confinencement of the original suit, giving the date thereof, and the names of the parties thereto, and adds, " the object and purpose of said orig- inal bill being as therein stated and prayed. ' ' The proceedings on the original bill are then stated as above, down to the filing of the master's report, to which is added the allegations that Goltra was made a defend- ant in the original bill, as one of the creditors of Foster, while his interest was that of a plaintiff ; and by said bill CKOSS-BILLS 189 and the report of the master, Goltra is represented as being entitled to share in the proceeds that may accrue to the creditors of Foster by virtue of any decree of this court in the original stdt. It is said that the cross-bill should state the original bill, or the parties, prayer, and object of it, the proceed- ings thereon, and the right of the plaintiff therein, which is sought to be made the subject of the cross-litigation. Story Eq. PI. Sec. 401; Adams, Eq. 403. In England, where this rule had its origin, a cross-biU might have been filed in another court than that in which the original was pending. Story, Eq. PI. Sec. 400. In such case it would be necessary to set forth the matters in the orig- inal bill, and its prayer and object, together with the pro- ceedings thereon, if any, so that the court might be possessed of the whole case, of which the cross-bill is only a part. But this practice never obtained in this country. In the national courts, at least, the cross-bill must, from the necessity of the case, be filed in the circuit court where the original bill is depending. In such case there is no necessity of bringing the facts of the original bill or its object or prayer to the attention or knowledge of the court by repeating them in the cross- biU, and a mere reference to the bill, which is already be- fore the court ; and a part of the case is sufficient for all practical purposes. Of course, it is necessary to set forth in the cross-bUl so much of the matter in the orig- inal bill, and the subsequent pleadings and proceedings thereon, as may be necessary to show what right or de- fense is sought to be brought before the court for ad- judication, and to make a proper case therefor. This has been done in this case. Goltra, a defendant in the original bill, but whose interest in the suit is that of a plaintiff, seeks by his answer, in case the court should find that the conveyances by Foster to the Crawf ords are void as to the creditors of the former, and order a sale thereof, to have his adjudgment against his co-defendant 190 neaij v. foster et al. Foster satisfied out of the proceeds of the property. And now his co-defendants in the original bill, Foster and the Crawfords, seek by the cross-bill to set up as against him the defense of a prior adjudication by the state court, as between them, of the question of the validity of the conveyances. It is admitted that the defense as stated is a bar to the demand of Goltra to have his claim satisfied out of the proceeds of this property; that, having litigated the question of the validity of the conveyances of the same as against the creditors of the grantor in the state court with him and his grantees, the Crawf ords, he is estopped to allege or claim anything to the contrary of the decree in that suit. A cross-bill is generally considered and used as a mat- ter of defense, and may answer the purpose of a plea, puis darrein continuance, where the matter of the de- fense arises after answer. A cross-bill is either brought against the plaintiff in the original bill or one or more of the defendants therein, and the original and cross-bill are considered one cause. 1 Smith Ch. Pr. 459, Story, Eq. PI. Sec. 389, 393; Adams, Eq. 402; Field v. Schief- f elin, 7 Johns. Ch. 252 ; Cross v. De Valle, 1 Wall. 14. It is also maintained that the cross-bill is filed too late, and that nothing has arisen since the commencement of the suit which would justify its filing. This point was made and argued on the application for leave to file the cross-bill, and it is contended that the question cannot now be raised agaia on the demurrer. But the rule is otherwise. It was not necessary to give notice of the ap- plication for leave to file a cross-bill ; nor, so far as I am advised, to obtain leave before doing so. The only case 1 have found on the subject is Bronson v. Railroad Co., 2 Wall. 283. There a cross-bill filed without leave of the court was set aside as irregular. But it was filed by a person not a party to the suit, who petitioned the court for leave to answer for a defendant corporation, then in CROSS-BILLS 191 default, of which lie was a stockholder, and also to file a cross-bill. Leave was given to file the answer, but as to the cross-bill the order of the court was silent. The par- ty filed the answer for the corporation, and also a cross- bill, which was subsequently set aside because filed with- out leave, by a stranger to the suit. A cross-bill is a regular and legitimate proceeding in a court of equity, to which any party defendant may re- sort in a proper case, without any special leave of the court. But in doing so he must conform to the law or rule which governs the case, or take the consequence. Story says (Eq. PI. Sec. 632): "A cross-bill will be open to a demurrer if it is filed contrary to the practice of the court, and under circumstances in which a pure cross-bill is not allowed." And as an illustration he cites tiie case of a cross-bill filed after publication of the testimony in the original suit, which seeks to introduce new testimony as to matters already in issue therein. It is generally stated in the books that a cross-bill must be filed before publication, — that is before the taking of testimony in the original case is closed, and the same opened to the inspection of the parties or published, — unless where some new matter, as a release, arises after- wards, or the case appears at the hearing too imperfect to reach and settle the rights of all the parties. As an illustration of the reason of this restriction. Chancellor Kent, in Field v. Schieffelin, 7 Johns. Ch. 253, says : " It is too late, after publication, to introduce new and further testimony to the matter in issue by the con- trivance of a cross-bill. It would be doing in an indirect way, per obliquum, what is forbidden to be done di- rectly," — referring to Hamersly v. Lambert, 2 Johns. Ch. 432. The reason given for this is that, if after the publica- tion of the testimony, and the defendant has found out wherein it is defective, he was allowed to supply the same by suppletory proof taken on a cross-bill, there would be 192 NEAL V. FOSTER ET Alj. great danger of perjury and fraud. Field v, Schieffelin, 7 Johns. Ch. 254; Story Eq. PI. Sec. 395. But the fact on which this artificial superstructure of caution and prevention is raised has long since ceased to exist in the courts of the United States. At one time all testimony taken in a suit in equity was taken by exam- iners or commissioners on written interrogatories, and neither the parties nor their attorneys were allowed to be present at the examination, while the persons before whom the testimony was taken were sworn to secrecy. 1 Smith Ch. Pr. 40, 356-359, 361-374. The testimony was then returned into court sealed up, and remained so until the taking of testimony in the case was closed, when an order of pubhcation was passed, and the depositions were opened. Now, however, under equity rule 67, the testimony may be taken orally before an examiner in the presence of the parties and their attorneys, who propound the interrogatories, and, when taken on commission and writ- ten interrogatories, the depositions may be and usually are opened and inspected ias soon as returned to the clerk's office. In other words, there is no longer any se- crecy in the premises, and there is now no reason why the' period or fact of publication should be arbitrarily pre- scribed as the point of time beyond which a cross-bill can- not be filed. The court may, stia sponte, direct the filing of a cross-bill when it appears necessary to a complete determination of the case, at any time before fimal decree ; and, in my judgment, there ought to be no fixed rule against a defendant's filing a crpss-bill in a proper case before the final hearing; the objection of laches being dis- posed of in each case on the particular circumstances thereof, or by rule of court or the supreme court. But even under the old state of things the objection to filing a cross-bill after publication had passed was really confined to cases, or at least the reason given for it would so confine it, where the cross-bill sought to introduce new CBOSS-BIIiLS 193 or further testimony concerning the matters already in issue. Forum Romanum, 46. But this bill seeks noth- ing of the kind. It sets up a prior determination be- tween the plaintiffs therein and the defendant Goltra of the question of the validity of the conveyances to the Crawfords, a matter which is not mentioned in the orig- inal bill, or the answers thereto, and about which no tes- timony could have been taken, and concerning which there can be no danger of perjury, for it must be proved, if at all, by the record. The application for leave to file the cross-bill was placed on the ground that the defense did not arise until April 11, 1887, when the suit of Goltra against Foster and the Crawfords was finally determined in the supreme court by the dismissal of the appeal, and therefore it was in the nature of a plea p^lis darrein continuance. This conclusion was based on the theory that the decree of the,, state circuit court, in Goltra v. Foster et al, was sus- pended during the appeal, and could not be used as an es- toppel while the appeal was pending, according to the rul- ing in California under a similar statute, which declares that ' ' an action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal. ' ' Code Civil Proc. Or. Sec. 505. See Sharon v. Hill, 11 Sawy. 302, 26 Fed. Rep. 337. But the supreme court of the state, in Say v. Holland, 15 Pac. Rep. 855, have since held otherwise, and said, in effect, that the decree of the lower court was operative for all purposes during the appeal as well as the period allowed for taking it. And so, in the light of this decision, the right to file the cross-bill cannot be rested on this ground It may be taken for granted that the plaintiffs in the cross-bill could not have the relief prayed for therein as against their co-defendant Goltra, by answer, or other- wise than by cross-bill. The filing of the bill took place before the cause was B. p. C— 13 194 ADAMS V. VALENTINE submitted for final hearing. It sets up a simple, distinct defense against Groltra's right to have his judgment satisfied out of this property. As it rests on an alleged record, the determination of its truth or sufficiency can- not materially delay or prejudice the final disposition of the case. Under the circumstances, I do not think the demurrer to the bill ought to be sustained on the ground of delay in filing the same. Some other causes of demur- rer are assigned, but as they were not noticed in the argu- ment, and do not appear to be material, they need not be considered. The demurrer is overruled. 56. ADAMS V. VALENTINE 33 Fed. Rep. 2 Wallace, J. : This suit is brought to enforce the spe- cific performance of a contract between the parties of the date of March 21, 1885, by which the complainant agreed to sell, and the defendant to buy, certain real estate, with a dwelling-house thereon fronting on Mount Vernon street, formerly Olive street, Boston, for the sum of $50,- 000, to be paid in cash on delivery of the deed; $1,000 of the consideration money having been paid at the time of making the contract. I'he contract contained the fol- lowing clause: "Conveyance to be made by a good and sufficient deed, giving clear title from all incumbrances on or before the fifteenth day of April next ensuing; sale subject to restriction against building beyond the present front line of the house; title to be good or the sale void." The time for executing the conveyance was extended by the mutual understanding of the parties, and had not ex- pired April 23, 1885 ; and on that day the defendant by letter notified the complainant that he should recede from the purchase, and expect the return of the $1,000, CftOSS-BjLLS 195 because of a defect in the title to the real estate consist- ing of "a condition imposed by the deed of Jonathan Mason to Charles Bulfinch, dated October 19, 1805, also imposed by a nmnber of succeeding conveyances. ' ' The deed from Mason to Bulfinch describes the premises in question as a lot of land "situate on Mount Vernon, west- ward of the estate of H. G. Otis, Esq." and conveys the land by metes and bounds, and contains the following clause: "Provided, and upon condition, that no building shall ever be erected upon said premises nearer to Olive street than said Otis ' house now stands. ' ' Bulfinch con- veyed the premises to Humphreys by a deed dated Feb- ruary 10, 1806, which contained this language: "Pro- vided, and this deed is upon condition, that no building shall ever be erected upon such premises nearer to Olive street than the house of H. G. Otis now stands." In sev- eral subsequent deeds conveying the same premises the words "upon condition" were omitted, but the words "provided that," etc., were retained. The deed to the complainant's testator, bearing date June 5, 1858, con- tained this recital: "The premises being subject to a con- dition that no building shall be erected nearer to Mount Vernon street than the house formerly of Harrison Gray Otis now stands." Several defenses to the action have been urged; but the conclusion which has been reached makes it unnecessary to consider whether there are any grounds for denying specific performance of the contract other than that upon which the defendant placed his re- fusal to complete the purchase in his letter of April 23d. The principles which control certain actions for spe- cific performance are familiar, and, so far as they are ap- plieable to the present controversy, can be briefly stated. Equity will not decree specific performance of a contract to purchase real estate, when the decree would compel the defendant to accept a doubtful title. The purchaser is entitled to a marketable title. He is not justified in refusing to perform the contract because a fanciful or Id6 ADAMS V. VALENTINE speculative doubt may be suggested of its validity. But a title open to a reasonable doubt is not a marketable one; and unless the defect belongs to the category of those in which substantial justice can be done by allowing compensation to the purchaser, and decreeing perfor- mance with allowances, the purchaser will not be subject to the contingency of being disturbed, or having his title successfully challenged when he attempts to part with it. In such actions, unless the party is present in whom the outstanding right is vested, the court will not undertake to cure infirmities by deciding a disputed question of fact or a doubtful question of law, but will refuse to decide for or against the validity of the title. Pyrke v. Wadding- ham, 10 Hare, 1 ; Bell v. Holtby, L. E. 15 Eq. 178 ; Swayne V. Lyon, 67 Pa. St. 436; Dobbs v. Norcross, 24 N. J. Eq. 327; Griffin v. Cunningham, 19 Grat. 571; JPark Com'rs v. Armstrong, 45 N. Y. 234. The case of Jeffries v. Jeffries, 117 Mass. 184, is in point. That was a bill in equity to enforce specific per- formance by the defendant of an agreement for the pur- chase of a house and lot of land in Boston. The defense was that the title was incumbered by a condition which prevented the erection of any building exceeding a speci- fied height upon the part of the land abutting on the street. The court used this language: "It is urged by the plaintiff that the court should, at least, pass upon the question whether the proviso in the deed is a condition now in force which may defeat the title derived under it, because otherwise it can never be brought to a decision except at the risk of the forfeiture of the entire estate. But that is precisely what the court has not power to do so as to conclude those to whom the benefit of the condition, if it be one, has passed ; and the effect of a decree overruling the defense would be simply to transfer from the plaintiff to the defendant whatever of risk or inconvenience there may be from such a cause. Hence the propriety and necessity of the rule in equity CROSS-BILLS 197 that a defendant in ptoceedings for specific performance shall not be compelled to accept a title in the least degree doubtful. It is not necessary that he should satisfy the court that the title is so defective that he ought to prevail at law; it is enough if it appear to be subject to adverse claims which are of such a nature as may reasonably be expected to expose the purchaser to controversy to maintain his title or rights incident to it. ' ' The restrictive clause in the Mason-Bulfinch deed, and the succeeding conveyances referred to in the defend- ant's notice of rescission, applies to a strip of land adjoining Mount Vernon street which is 30 feet in width, and whether treated as a strict condition, or only as a covenant running with the land, constitutes a defect in the title of the property which is not susceptible of pecuniary compensation. Gilbert v. Peteler, 38 N. Y. 165. If it is only a covenant, it affects part of the land purchased by the defendant with a servitude of a sub- stantial nature, and the diminution in the value of the property purchased cannot be ascertained with any approximate accuracy. If the clause creates a condition, it constitutes a fatal defect in the title which the defend- ant is asked to accept. By the contract of purchase the defendant stipulated, in substance, to accept a title which would be subject to a servitude restricting the mode of use of the strip of land abutting on Mount Vernon street. Giving proper effect to the contract, he is entitled to have a clear title, free from all incumbrances except a servi- tude affecting only the strip in question; but he is not required to accept a title by which the whole estate becomes liable to forfeiture in case the part subjected to the restricted use is ever appropriated to a different use. The clause in the Mason-Bulfinch deed, and especially the one in the Bulfinch-Humphreys deed, imposing the restriction against building, is in terms appropriate to create a condition, as distinguished from a limitation of 198 ABAMS V. VALENTtNE covenant. Nothing could be plainer or more perena- tory than the words in the latter deed, — "provided, and this deed is upon condition that. ' ' There is no room for construction, and there is nothing in the context of either of these deeds which warrants any other than the ordi- nary meaning of the language employed. Effect must . be given to it conformably with the well-settled rules of law as expressing a technical condition. Gray v. Blanchard, 8 Pick. 283; Langley v. Chapin, 134 Mass. 82. The cases of Ayling v. Kramer, 133 Mass. 12; Skinner V. Shepard, 130 Mass. 180; and Episcopal Mission v. Appleton, 117 Mass. 326, — which illustrates the familiar rule that, although the words in a deed or devise are sufficient to create a condition the breach of which would forfeit the estate, the courts lean against such a con- struction, and when the words are capable of being treated as a covenant or restriction, will hold that they do not amount to a condition, do not conflict with the con- clusion reached. The instrument considered by the court in each of these cases contained language from which it was reasonable to infer that the clause under consideration was not intended to operate as a condition. The extrinsic evidence introduced by the complainant, for the purpose of showing that neither Mason nor Bul- finch intended that the restrictive clause in their deeds should take effect as a condition, if competent in any view as against the defendant, is not persuasive; much less is it controlling. So far as this evidence relates to the Mason-Bulfinch deed, it does not require comment, because the defendant must prevail if the clause in the Bulfinch-Humphreys deed is a condition ; and it is there- fore immaterial what construction is given to the clause in the Mason-Bulfinch deed. So far as it relates to the Bulfinch-Humphreys deed, it is to the effect that, shortly after Bulfinch purchased of Mason the property described in the Mason deed, which property included, not only the complainant's lot, but the lot adjoining it CROSS-BILLS 199 fronting on the same street, he conveyed the adjoining lot to Higginson by a deed without any condition or restriction against building. The deed to Humphreys and the deed to Higginson were apparently prepared at the same time, because they bear the same date ; but the deed to Humphreys was not executed until a few days after the execution of the deed to Higginson. Conced- ing, for argument, that the evidence authorizes the infer- ence that Bulfinch did not regard the restrictive clause in Mason's deed as a condition, the question is whether he intended to impose a condition in his own deed to Humphreys ; and the fact that he saw fit to convey part of the land without condition or restriction has no legit- imate bearing upon this question. It does not throw any light upon the meaning of his deed of another part of the land, made about the same time, to another person, in which he incorporated, not only a restriction, but an unequivocal condition. If such evidence can overthrow the plain language of a written instrument, the learning of the conveyancer is vain. It must therefore be determined that the complainant is unable to convey such title as the contract requires, and that specific performance should be denied. As the defendant insists by his answer upon a return of the money paid at the time of executing the contract, he is entitled to a decree to that effect, if the facts justify it, although he has not filed a cross-bill. Story, Eq. PI. Sec. 394 ; Turner v. Marriott, L. E. 3 Eq. 744 ; Royou v. Paul, 28 Law J. Ch. (N. S.) 555; Turquand v. Ehodes, 37 Law J. Ch. (N. S.) 830. It therefore becomes neces- sary to pass definitely upon the question of the valid- ity of the title. Upon the view taken of the title and of the contract the defendant would be entitled to recover back his money in an action on the law side of the court. The decree must therefore direct repayment. 200 LOWENSTEIN V. GLIDEWELL 57. LOWENSTEIN v. GLIDEWELL 5 Dillon 325-329 Statement of Facts: Plaintiff filed bill to foreclose deed of trust. Partee and -wife were made defendants upon allegation of interest. Partee and wife answered, and also filed cross-bills praying cancellation of deed of trust, etc. No process was issued on cross-bill, and plaintiffs in original bill did not enter appearance. Plaintiff in original bill moved to discontinue. Partee and wife objected and moved for decree pro confesso on cross-bill. Caldwell, J. : The plaintiffs in the original bill have the right, as a matter of course, at any tune before de- cree, to dismiss their bill at their own costs. 1 Barb. Oh. Prac. 225, 228; 1 Daniel's Ch. Prac. 792. The cause is not at issue on the original bill — no replication to the answer having been filed — and the defendant in that bill, under rule 66, might have obtained an order, as of course, for a dismissal of the suit for this reason. The motion of plaintiffs to dismiss their bill is granted, and the same will be dismissed at their costs. The mo- tion of plaintiffs in the cross-bill for a decree pro con- fesso thereon against the defendants therein named is denied. If the defendants in the cross-bill had been served with process, or had voluntarily entered their ap- pearance in the cross-bill, the plaintiffs therein would have been entitled to a decree pro confesso after the lapse of the time allowed defendants by the rules to answer. The bill and cross-bill in equity do not necessarily con- stitute one suit, and, according to the established prac- tice in equity, the service of a subpoena on the defend- ants in the cross-bill, although they are parties in the original bill, and in court for all the purposes of the orig- inal bill, is necessary to bring them into court on the CROSS-BILLS 201 cross-bill, unless they voluntarily enter their appearance thereto, which is. the usual practice. And the general chancery rule is that service of the subpoena in chancery to answer a cross-bill cannot be made upon the solicitor of the plaintiff in the original bill. 1 Hoff. Ch. Prac. 355, and note 4. In the chancery practice of the circuit courts of the United States there are two exceptions to this rule — (1) in case of injunctions to stay proceedings at law, and (2) in cross-suits in equity where the plaintiff at law in the first and the plaintiff in equity in the second case reside beyond the jurisdiction of the court. In these cases, to prevent a failure of justice, the court will order service of the subpoena to be made upon the attorney of the plaintiff in the suit at law in the one case, and upon his solicitor in the suit in equity in the other. Eckert v. Bauert, 4 Wash. 370 ; Ward v. Sebring, id. 472 ; Dunn v. Clark, 8 Pet. 1. And for application of analogous prin- ciples to parties to cross-bills, see Schenck v. Peay, Woolw. 175. It not unfrequently occurs that the facts constituting defendant's defenses to an action or judgment of law are of a character solely cognizable in equity, and in suits in equity it often happens that the defendant can only avail himself fully and successfully of his defense to the action through the medium of a cross-bill. In suits in these courts the plaintiff is usually a citizen of another state, and hence beyond the jurisdiction of the court, and in such cases defendants who desire to enjoin proceedings at law, and defendants in equity cases who desire to defend by means of a cross-bill, would, but for this rule of practice, be practically cut off from their de- fenses by reason of their inability to make service oh the plaintiff in the action. It would be in the highest degree unjust and oppressive to permit a non-resident plaintiff to invoke the jurisdiction of the court in his favor, and obtain and retain, as the fruits of that jurisdiction, a 202 LOWENSTEIN V. GLIDBWEtiL judgment or decree to which he was not in equity entitled by remaining beyond the jurisdiction of the court whose jurisdiction on the very subject-matter, and against the very party, he had himself first invoked. The reason of the rule would seem to hmit it in equity cases to cross- bills either wholly or partially defensive in their char- acter, and to deny its application to cross-bills setting up facts not alleged in the original bill, and which new facts, though they relate as they must to the subject-matter of the original bill, are made the basis of the affirmative re- lief asked. The cross-bill in this case is of this latter character, and without deciding that this fact alone would preclude the court from directing service of the subpoena on the solicitors of the plaintiffs in the orig- inal bill, such an order will not be made after plaintiffs have filed their motion to dismiss their bill — a motion grantable as of course. Whether the dismissal of the original bill carries with it the cross-bill depends on the character of the latter. If the cross-bill sets up matters purely defensive to the original bill and prays for no affirmative relief, the dis- missal of the latter necessarily disposes of the former. But where the cross-bill sets up, as it may, additional facts not alleged in the original bill relating to the sub- ject-matter, and prays for affirmative relief against the plaintiffs in the original bill in the case thus made, the dismissal of the original bill does not dispose of the cross-bill, but it remains for disposition in the same man- ner as if it had been filed as an original bill. Warrell v. Wade, 17 la. 96; 2 Daniel's Ch. Prac. 1556. The cross-bill in this case is of this character and it will remain on the docket, and the plaintiffs therein can take such action in relation thereto as they may be ad- vised, but no steps can be taken in the case until defend- ants are brought into court. XV AMENDMENTS 58. PARKHUEST v. KINSMAN 2 Blatchford, 72 Betts, J. : Application for leave to file a supplemen- tal bill making Goddard a party and adding new charges against Kinsman, based partly on recent facts and partly on newly-discovered evidence. Notice having been served on Kinsman and Goddard, both opposed the application on grounds that will appear sufficiently in the opinion of the court. The original bill was founded on an agreement between the plaintiff and Kinsman, which, upon certain conditions, gave to the latter the right to use the former's patent. There had been a provisional injunction, however, forbidding any further making or selling of the machines. It seemed to be supposed on the argument, by the counsel for the defendant, that the supreme court in requiring, by rule 57, notice to be given on an application for leave to file a supplemental bill, had put the petition upon the footing of the bill itself when filed, and that the application could be defeated by showing that the petition did not make a case establishing the propriety of the bill, and the legal liability of the party sought to be brought in, to the remedy sought by the suit. Such, how- ever, is not the effect of the rule. It does not essentially change the practice as it before existed. In England and in this state supplemental bills were allowed to be filed only by leave of the court (Dan. Ch. Pr. 1655, Am. ed., and notes; Eager v. Price, 2 Paige, 333; Lawrence V. Bolton, 3 id. 294) ; and the court, in addition, fre- 203 204 PARKHUEST V. KINSMAN quently ordered notice to be given of tlie application. Eager v. Price, 2 Paige, 333. The design of notice is to avoid precipitation and a needless accumulation of pleadings. But the court inquires no further than to see whether probable cause exists for the new proceeding. The petition, accordingly, need not embrace the aver- ments intended to be inserted in the supplemental bill, but need only advise the opposite party and the court of the ground on which the relief is applied for. The court may, therefore, deny leave to file a supplemental bill, and yet permit an amendment of the original bill; and this ability to shape and abridge the pleadings may be the reason of the practice which requires the assent of the court to the filing of a supplemental bill. In my opinion, then, all that the court looks to on motions of this description is to see that the plaintiff states facts or circumstances which, if properly pleaded, would sus- tain a supplemental bill. The allegations in the petition in regard to Goddard would undoubtedly be insufficient as averments in a sup- plemental bill, but they embrace matters which, if well pleaded, may charge htm as a party to the suit. The court will not decide this motion on the technical rules applicable to a demurrer. The petition is sufficiently definite in charging that Goddard has become connected with the subject-inatter of the suit against Kinsman since the original bill was filed, and is, in that connection, doing those acts in relation to the interests of the plain- tiff which this court, by injunction, has restrained Kins- man from doing; and that is, in substance, sufficient according to all the authorities, to authorize the plain- tiff to bring Goddard before the court in the same suit to answer for his proceedings. On these points the plaintiff is entitled to a discovery from Goddard. It is a mistake to construe the petition as setting up, as the ground of complaint, an independent infringement by Goddard of the plaintiff's rights under his patent. Its AMENDMBJNTS 205 bearing and manifest intent is to charge on Goddard a combination with Kinsman, and an acting in concert with him to defeat the right the plaintiff has to restrain Kinsman on the equities of the original bill. It is enough, on this motion, to allege such concert and com- bination on information and belief, whether such a charge would or would not be sufficient in the bill itself. The leave prayed for must, therefore, be granted in respect to Goddard. Most of the matters sought to be inserted in the sup- plemental bill in respect to Kinsman would be proper subjects of amendment to the original bill, and could not lay the foundation for a supplemental bill. 1 Hoff. Ch. Pr. 393, 398; Story's Eq. PI., Sec. 333. But, as a dis- covery is sought from Kinsman in regard to particulars not stated in the original bill, and an answer to that has been already put in by him, the course of practice will justify the filing of a new bill. Mitf. PI. 62, 3d Amer. ed. 99, and note. The laches imputed to the plaintiff, in not pushing forward his suit since Kinsman's plea and answer were put in, might perhaps call for a fuller excuse, before the court would allow the plaintiff to change the issues by amending the original bill. Even then, however, the objection would not stand upon the ground of any essen- tial injury to the defendant to arise from permitting such amendment, for it is not shown that any proofs have been taken by either party under the issues, or that the defendant has availed himself of his privilege under our practice of speeding the cause. But a supple- mental bill may be filed at any stage of a cause, even after decree rendered (Story's Eq. PL, Sec. 338), and the nature of the present litigation would induce the court to lend all reasonable aid to have every dispute between the parties in respect to their rights as involved in it defi- nitely settled, and to leave nothing to be called up and pursued hereafter. Upon these considerations I shall 206 PENNSYLVANIA STEEL CO. V. NEW TOIIK CITY ET. CO. authorize the supplemental bill to be filed as prayed for, with the insertion, as against Kinsman, of the allegations referred to in the petition, and which might not, if brought forward by themselves, justify more than an order for amendment. 59. PENNSYLVANIA STEEL CO. v. NEW YORK CITY RY. CO. 190 Fed. Rep. 603 Lacombe, Cibcuit Judge: The petition sought to be amended is the one verified October 10, 1910, upon which (with others) the special master was instructed to pass upon certain questions arising, on a branch of the case, known as the "appropriation of payment" proceeding, the answers to which would determine how certain mon- eys paid in settlement of litigations prosecuted by the receiver of the New York City Railway Company should be apportioned between the litigations which were ter- minated by such payment; and also some questions of lien or rights to share in the moneys so appropriated. The theory of the application is that there is an apparent discrepancy between the proofs and the aver- ments of the petition as to the amount of the balance of account between the two estates (New York City Rail- way and Metropolitan Street Railway) . Such an applica- tion is unnecessary. The court always has power to con- form pleadings to proof. Whether there is such a discrep- ancy between the two as requires such an amendment can be intelligently decided only by the tribunal which is fully informed as to the proofs. In the first instance such tribunal is the special master. It is stated in argu- ment that, although he received all the proof offered, he expressed some doubt as to his power to allow the amendment prayed for. It is not necessary to determine AMENDMENTS 207 whether or not, under the terms of the order which sent tile controversy to him, he had such power. An excep- tion to his refusal to allow the amendment will bring the matter before the circuit judge when the report comes up for confirmation and, having indisputably the power to conform pleadings to proof, the judge can adminis- ter full relief, if any be required. The claim which petitioners ask to amend is the one filed February, 1910, by receivers of the Metropolitan Street Railway Company against New York City Rail- way Company for moneys alleged to be due by reason of the breach of the agreement of May 22, 1907, between the two companies. The proposed amendment would increase the claim against the New York City Company about $1,500,000. It was conceded upon the argument that if the proceeding now under advisement before the special master — the "appropriation of payment proceed- ing" — is decided one way, it would be wholly unneces- sary to amend the claim. The application would there- fore seem to be premature. It is contended that the claim as it stands is relied upon by other parties as an admission of the condition of the mutual accounts between the two companies which may operate to the dis- advantage of petitioners. The contention is not per- suasive. All that the "claim" evidences is that on the day it was filed the receivers of the Metropolitan were satisfied, upon such investigation as they had then made, that the accounts between the two roads showed the bal- ance which they stated. No amount of amendment can change the effect of that admission, viz., that such was their understanding at that time of the state of the ac- count. If the proofs should show that they were mis- taken, their "admission" evidenced by filing the claim would not control, the decision would be conformed to the facts, not to their past conception of what they were. Of course, the question would then remain whether they should be allowed to amend the claim by asking for this 208 SOUTH CHICAGO BEEW. CO. V. TAYLOE large additional sum, so long after the date fixed for fil- ing claims ; but that is a distinct question, -which need not be decided now, since the decision of the special master in the proceeding now submitted to him may make it academic. Motion denied. 60. SOUTH CHICAGO BREW. CO v. TAYLOR 205 III. 132 Mk. Justice Caetweight: After the evidence was taken, the appellee obtained leave of court to amend her petition without prejudice to the defaults, proceedings and proofs in the case, and amended the petition on July 14, 1902, by setting up the possession of James H. Bowen before the Chicago fire, and claiming ownership by vir- tue of his possession and the complete chain of title to her, independently of her chain of title from the govern- ment under the patent to Ash Kum. To the petition as amended, appellant filed an answer, not confined to the amendment or defenses to it, but again covering the whole case, and again setting forth its alleged title by the deed from Rudolph Brand and the tax title, with posses- sion and payment of taxes. Appellee moved to strike this amended answer from the files," but the court permitted it to stand, and the replication previously filed was al- lowed to stand to such amended answer. After the decree was entered, appellant moved the court to set it aside and for a rehearing, to enable it to introduce further evidence material to the issue in the case. There was no showing what the evidence was, whom it was expected to prove it by, or that there had been any diligence in obtaining and producing it. The motion was a general request to open the case, based on the fact that there had been an amendment to the AMENDMENTS 209 petition, and an answer thereto, after the testimony was taken before the master. The amendment to the answer was filed July 14, 1902, and the decree was on February 25, 1903. During the intervening period there was no attempt to take any new testimony. The ajnendment was proper, since a complainant must recover on the case made by his bill, and appellant had a right to answer and contest the case on which appellee claimed relief. (Adams V. Gill, 158 111. 190.) It was also proper to allow the amendment after the proofs were taken, so that the alle- gations and proofs might correspond. The regular and proper course upon an amendment is for the court to set aside the defaults, but, whether there is such an order or not, an amendment to a biU virtually sets the default aside. (Gibson v. Eees, 50 111. 383; Lyndon v. Lyndon, 69 id. 43.) Appellant is not interested in any question as to the effect of tbe amendment or tbe setting aside of defaults as to other parties. It was entitled to answer the new claim stated in the amended petition. The amended answer was proper so far as it ^answered the amendment to the bill and alleged any matter of defense thereto. So far as appellee was concerned, the amend- ment made her petition conform to proofs already taken. On the reference before the master several witnesses were produced and examined by appellee as to the pos- session of Bowen, and they were cross-examined by the appellant. When the amendment was made setting up the facts proved by sucb witnesses, if the appellant had any evidence that Bowen was not in possession it should have moved with reasonable diligence in procuring and offering such evidence. It not only did not do so, but did not show that it had any evidence of that character. The court was not called upon to re-open the case and con- tinue it under those circumstances. The decree of the superior court is affirmed, except so far as it requires appellant to pay costs and sets off moneys due it against such costs, and the cause is re- E. P. C— 14 . , 210 SOUTH CHICAGO BREW. CO. V. TAYLOR manded to that court, with directions to amend the de- cree so as to require the payment of all costs by appellee and the payment to appellant of the amount due for taxes and interest. Affirmed in part and remanded. (Part of opinion omitted.) XVI EVIDENCE IN CHANCERY 61. KOCH V. ARNOLD 242 III. 208 Justice Dunn: This appeal is from a decree of the superior court of Cook county setting aside a tax deed and raises only the question of the sufficiency of the re- citals of the decree to sustain it, the record containing no certificate of the evidence. The bill alleged that the complainant was the owner and in possession of the premises. The answer denied this allegation, and the decree finds that the complain- ant was at the time of the commencement of the suit, since then has remained, and now is, the owner of the premises and at the commencement of the suit was in the actual and exclusive possession thereof. It is insisted that the finding that the complainant is the owner of the premises is not sufficient because it is merely a conclu- sion of law and not the finding of a specific fact. It is necessary to the validity of a decree granting relief that the record shall show the facts warranting the decree. It is not, however, necessary that all the evidence by which the facts were proved should be set forth in the record. If it appears that the court, from the evidence before it, found the ultimate facts justifying the relief granted, it is sufficient. The decree need not recite sub- siduary or evidentiary facts tending merely to sustain the ultimate conclusion of fact upon which the decree is founded. A general finding of the fact is enough, and it is not necessary to find minutely all the circumstances tending to sustain the general finding, for these circum- stances are matters of evidence only. Almost any state- 2U 212 KOCH V. ARKOLD ment of fact may be shown by a refined analysis to de- pend upon an inference to be drawn from other facts and to require the application of legal rules in making the de- duction. Besides ownership may be cited marriage, resi- dence, possession, partnership, assessment, delivery, and many other acts, relations or conditions, as examples of a complex fact, the finding of which may require the con- sideration of few or many subordinate facts and the ap- phcation of legal principles to their consideration, but the final conclusion reached as an inference of fact drawn from all the circumstances is a fact within the meaning of the rule requiring the facts sustaining a decree to appear of record. Decisions of courts holding that it is not competent for a witness to testify to the fact of ownership, indebtedness or other ultimate fact are not in point, for that ultimate fact is the conclusion of fact to be drawn by the jury or court trying the issue, and wit- nesses may testify only to the facts within their personal knowledge, and are no more permitted to state their in- ference of facts than to testify to their conclusions of law. The decree found "that the application and affidavits on which said tax deed was issued wholly fails and neg- lects to show whether the said premises were improved and occupied and in possession of some person during the two months next preceding the last three months prior to the expiration of the time of redemption from the sale in the said certificate of tax sale, and if the said premises were occupied during that time the said occu- pants should have been personally served with a notice of said tax sale." It is insisted that this finding is in- sufficient, because the application may, nevertheless, have shown that the premises were, during the period men- tioned, vacant and unoccupied. The statute provides that no person shall be entitled to a deed for lands sold for taxes unless he shall have served notice of the sale at least three months before the expiration of the time EVIDENCB nsr CHANCERY 213 of redemption upon every person in the actual possession or occupancy of such land and shall also have filed an affidavit showing a compliance with this requirement. The finding that the affidavit failed to show whether the said premises were improved and occupied and in pos- session of some person is a finding that it failed to show a compliance with the requirements of the statute. It could not show a notice served on every person in the possession or occupancy of the land without showing whether the premises were occupied and in possession of some one, nor could it have shown that the premises were vacant and unoccupied without showing whether they were occupied and in possession of some one. This find- ing is awkwardly expressed, but it is, in substance, a sufficient finding that the affidavit did not state either that said premises were occupied or were vacant and un- occupied. It was therefore insufficient to authorize the execution of the tax deed. Objection is made to the sufficiency of other findings, but they become immaterial in view of what has been said in regard to the two which have been considered. The decree of the superior court is affirmed. 62. BLEASE v. GARLINGTON 92 U. 8. 1 Chief Justice Waits : Upon the hearing in the court below, after the plaintiff had submitted his case upon the pleadings and his mortgage, the defendant presented himself as a witness to be examined orally in open court, and proposed to testify to the following facts, to wit: "1. That one of the conditions of the original agree- ment for the sale of the liability of Eobert Stuart, as one of the sureties on the bond of J, B. O'Neall, as guardian 214 BLEASE V. GAELINQTON of J. M. Young, plaintiif's intestate, to the defendant, was that the plaintiff should obtain judgment against the said E. Stuart; and that, when the agreement was drawn up and presented to the defendant, he called at- tention of plaintiff to the fact that that part of the agree- ment which obligated him to get judgment had been left oiit, and insisted that it should be inserted; and he was assured that that condition should be carried out, and that it was not necessary to rewrite the agreement for the purpose of putting it in. "2. That, during the negotiations for the sale of the aforesaid liability of R. Stuart, the plaintiff represented to the defendant that said liability or claim was worth at least $6,000; and that, in fact, it is not worth $2,500. "3. That the defendant did not know the then finan- cial condition of K. Stuart, and put implicit confidence in the promises and representations of the plaintiff, and would not have made the trade but for such assurance." His proposition, made in writing, is sent here as part of the record. The court refused to receive the testi- mony, and it was not taken. A decree having been en- tered in favor of Garlington, Blease brings the case here by appeal. Cases in equity come here from the circuit courts, and the district courts sitting as circuit courts, by appeal, and not by writ of error. Rev. Stat., sec. 692. They are heard upon the proofs sent up with the record from the court below. No new evidence can be received here. Rev. Stat., sec. 698. The facts relied upon by Blease were neither proved nor admitted in the court below. Testimony in support of them was offered ; but it was not received. We do not know, that, if it had been received, it would have been sufficient. If we find that the court erred in refusing the testimony, we shall be compelled to affirm the decree be- EVIDENCE m CHANCERY 215 cause of the lack of proof, or send the case hack for a new hearing. An important question of practice is thus presented for our consideration. Since the amendment of rule 67, in 1861, there could never have been any difficulty in bringing a case here upon appeal, so as to save all exceptions as to the form or substance of the testimony, and still leave us in a condition to proceed to a final determination of the cause, whatever might be our rulings upon the exceptions. The examiner before whom the witnesses are orally examined is required to note exceptions ; but he cannot decide upon their vaUdity. He must take down all the examination in writing, and send it to the court with the objections noted. So, too, when depositions are taken according to the acts of Congress or otherwise, under the rules, ex- ceptions to the testimony may be noted by the officer taking the deposition, but he is not permitted to decide upon them; and when the testimony is reduced to writ- ing by the examiner, or the deposition, is filed in court, further exceptions may be there taken. Thus both the ex- ceptions and the testimony objected to are all before the court below, and come here upon the appeal as part of the record and proceedings there. If we reverse the ruling of that court upon the exceptions, we may still proceed to the hearing, because we have in our posses- sion and can consider the rejected testimony. But under the practice adopted in this case, if the exceptions sus- tained below are overruled here, we must remand the cause in order that the proof may be taken. That was done in Conn, et al. v. Penn., supra, which was decided before the promulgation of the rules. One of the objects of the rule, in its present form, was to prevent the ne- cessity for any such practice. "While, therefore, we do not say, that, even since the Eevised Statutes, the circuit courts may not in their dis- cretion, under the operation of the rules, permit the ex- 216 BLBASE V. GARLINGTON amination of witnesses orally in open court upon the hearing of cases in equity, we do say that now they are not by law required to do so ; and that, if such practice is adopted in any case, the testimony presented in that form must be taken down or its substance stated in writ- ing, and made part of the record, or it will be entirely disregarded here on an appeal. So, too, if testimony is objected to and ruled out, it must still be sent here with the record, subject to the objection, or the ruling will not be considered by us. As case will not be sent back to have the rejected testimony taken, even though we might, on examination, be of the opinion that the objection to it ought not to have been sustained. Ample provision hav- ing been made by the rules for taking the testimony and saving exceptions, parties, if they prefer to adopt some other mode of presenting their case, must be careful to see that it conforms in other respects to the established practice of the court. The act of 1872 (17 Stat. 197, Rev. Stat., sec. 914) pro- viding that the practice, pleadings, and forms .and modes of proceeding, in civil causes in the circuit and district courts, shall conform, as near as may be, to the practice, &c., in the courts of the states, has no application to this case, because it is in equity, and equity and admiralty causes are in express terms excepted from the operation of that act. We might, therefore, affirm the decree below, because there is no testimony before us in support of the de- fense ; but, if we waive this question of practice, — ^which, on account of its importance, and the misapprehension that exists in respect to it in some of the circuits, we have thought it proper at some length to consider and de- termine, — and look to the merits of the case, we find no error. (Note: Parts of this case omitted.) EVIDENCE IN CHANCERY 217 63. FAYEEWEATHER v. RITCH 89 Fed. Rep. 529 Justice Lacombe: Personally I do not think that the testimony objected to is relevant under the issues raised by the plea; but it is evident that complainants' counsel is of a different opinion, since he is putting his clients to considerable expense in putting it in. It may be that he could persuade the appellate court to take his view of the issues; and if so, under the rule adopted by the supreme court, and construed in Blease v. Garlington, 92 U. S. 1, the testimony, although the judge of first instance deems it irrelevant, should be incorporated in the record. It does not seem, therefore, that this motion should be granted. The continued taking of this testimony would be a hardship to defendant, were it not that complainant has offered to stipulate that opposing counsel need not attend to register objections and reserve objections to the testimony, but may raise such objections after the testimony is taken, and before the record is made up for argument. This certainly makes the archaic, cumber- some and unsatisfactory method of taking testimony in equity in the federal courts as little of a burden to de- fendants as it can be made. In view of the decision in Blease v. Garlington, supra, this court seems powerless to afford any greater measure of relief. The proffered stipulation is approved, and motion denied. 64. CROCKET v. LEE 7 Wheat. 522 Chief Justice Marshall: The testimony which has been taken in these causes, certainly is very strong in support of the decrees of the circuit court ; but the coun- 218 CROCKET V. LEE sel for the appellant contends that so much of this testi- mony as respects the vagueness of Cameron's location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill, nor alleged in his answer, that this location is vague, nor has he anywhere, or in any manner, ques- tioned its validity. The principle advanced by the appellant's counsel cannot be controverted. No rule is better settled than that the decree must conform to the allegations, as well as to the proofs in the cause. The location being set out in the pleadings, the court can undoubtedly notice any intrinsic apparent defect. If it be void in itself, no tes- timony can sustain it, and it would be deemed void on a demurrer to the bill. But if it be not void in itself, if its validity depends upon facts to be proved in the cause, then its validity ought to be put in issue. The counsel for the appellee does not directly contro- vert this principle, but endeavors to withdraw his case from its operation, by contending that terms are used in the pleadings which are equivalent to a direct allega- tion that Cameron's location is too vague to be sustained. If in this he is correct, the consequence he draws from it will be admitted; for it will certainly be sufficient, if the matter to be proved be substantially alleged in the proceedings. How, then, is the fact? In his answer to Crocket's bill, he says that he does not "admit that the survey has been made agreeable to location or to law." This allegation certainly questions the survey. If it vary from the entry, if it be chargeable with any fatal irregularity, if it be in any respect contrary to law, such defects may be shown, and the party may avail himself of it to the extent justified by his testimony, and by the law. But this allegation is confined to the survey. It does not mount up to the location, nor does it draw that EVIDENCK IN CHANCERY 219 into question. It gives no notice to Crocket that his entry was to be controverted. The bill filed by Lee is equally defective in this respect. After setting out his own title, he states that of his ad- versary; and, after reciting the certificate granted to Cameron, subjoins that Crocket claimed the land "in dis- pute by virtue of the said improvement, and having caused the same to be surveyed contrary to location, and to law, and was to interfere with" his (Lee's) claims, had obtained a prior patent, &c. This allegation, like that in the answer, draws into question only the survey. It does not controvert the loca- tion or entry. The counsel for appellant says it would be monstrous, if, after the parties had gone to trial on the validity of the entry, and have directed all their testimony in the circuit court to that point, their rights should be made to depend in the appellate court on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended, and the non-existence of which would not have varied the case. The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery — -rules which have been established for ages, on the soundest and clearest principles of gen- eral utility. If the pleadings in the cause were to give no notice to the parties or to the court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited; if a new case might be made out in proof, differing from that stated in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the de- cree must conform to the allegations, as well as to the proofs of the parties, is not only one which justice re- quires, but one which necessity imposes on courts. We 220 WILLIAM S. MOSS V. LOUISA MCCALL ET AL. cannot dispense with it in this case. But although the entry is not put in issue, the survey is; and if that be made on ground not covered by any part of the entry, the decrees would, on that account, be affirmed. It must at once occur that in a case where the entry is in reality attended with much uncertainty, there will be some difficulty in showing how much a survey varies from it, unless the survey be made on land entirely different from the entry. That does not appear to be the fact in the present case. Cameron's entry calls for the head right-hand fork of Welles' branch, for the head of a small run that empties into the north fork, and to lie about one and a half miles above the war-path that crosses the north fork. The survey is upon the head waters of these streams, and lies a small distance above the war-path that crosses the north fork. There is rea- son to believe, that, were the location to be sustained, the survey would be found to conform to it in part, though not, perhaps, entirely. This court has no means of ascertaining how far they agree, and how far they dis- agree, and the decrees of the circuit court must be re- versed. But as this reversal is not on the merits of the case, and the court is rather inclined to the opinion that the decrees on the merits are right, no final decree will be directed in either cause, but each will be remanded to the circuit court, with directions to permit the parties to amend their pleadings. 65. WILLIAM S. MOSS v. LOUISA McCALL ET AL. 75 III. 190 Justice Scott : We have examined the case with that care its magnitude and importance demand, but we are unable to determine from the record whether the decree EVIDENCE IN CHANCERY 221 does justice between the parties. It rests solely upon the assumption that it was proven there was a subsequent agreement with the several partners that each should be charged with interest upon the items of his individual ac- count, and should be credited with interest upon all moneys paid in. Even upon this theory of the case we cannot know that the decree is warranted by the evi- dence. The cause was not referred to a master, but the decree seems to be based on a computation made by one witness, assisted by others who undertook to balance the books. What principle he adopted, or how he made the calculations, does not appear from anything in the record. The court did not find that any agreement to pay in- terest, such as is insisted upon, was proven, and we do not find any satisfactory evidence of it in the record. No interest account was kept during the time the firms of Moss, Bradley & Co. did business, but long after those firms ceased to carry on business, Bradley under- took to have the books balanced. He died before this bill was filed, but there is some testimony to the effect he directed the book keeper to charge and credit the in- dividual accounts of the partners with interest. What he may have said to the book keeper on this subject could in no way bind Moss. The firms had then ceased to do business, and Moss was absent from the state. We fail to discover any evidence in the present record that Moss ever agreed to the arrangement contended for, to allow interest upon each partner's individual account. There is no certificate of evidence in this record, but it is suggested there may have been other evidence that would support the decree. The practice has made it in- cumbent on a party seeking to sustain a decree in his favor, to preserve the evidence on which it is based, either in a certificate under the hand and seal of the judge who heard the cause, or in the decree itself. Com- plainants in this case have done neither. Evidence con- tained in depositions on file, form a part of the record, 222 ESLAVA V. MAZANGE without any certificate of the judge for that purpose. The same rule prevails as to exhibits made part of the bill or answer, filed therewith, and the court will pre- sume they were considered on the hearing. Bressler v. McCune, 56 111. 475. This record contains all the evidence that appears to have been heard in the court below. If it does not, it was the duty of the party in whose favor the decree was, to preserve what other evidence there was in some appropri- ate manner. The rule on this subject was stated in Brooks et al. v. Martin et al., 64 111. 389, where it was held that if the record does not contain all the evidence heard in the cause, it is for the party complaining of such omission to supply it. Part of above opinion not in point, omitted. 66. ESLAVA v. MAZANGE 1 Woods 623-627. 1871 Bkadley, J.: Statement op Facts: The bill is filed in this case to subject certain property, conveyed by the complainant to Ovid Mazange many years since, to a parol trust, in favor of the complainant, on which, as he alleges, the conveyance was made. The Bank of Mobile is made defendant because it has an execution against Eslava, which has been levied on the property in ques- tion. On filing the bill and before issuing the subpoena, the complainant obtained an order to examine himself and his wife as to any transactions with or statements by Ovid Mazange, deceased, upon interrogatories to be served on the parties to the suit, or upon notice to them, before some commissioner of the United States. The rule suggests that Eslava and his wife are aged and in- firm, and reside in New Orleans. As soon as issue was joined in the qause, the defend- EVIDENCE IN CHANCERY 223 ants gave notice to the complainant that they desired the testimony in the case should be taken orally, under the sixty-seventh rule of the court, and soon after filed writ- ten objections to taking the testimony of the plaintiff and his wife on the grounds, amongst others, that the complainant was not a competent witness in the case (Mazange being dead), and that the wife could not be a witness for her husband. The complainant's counsel, nevertheless, after this, proceeded to file and serve in- terrogatories with a view to examine the complainant and his wife on commission. The defendants filed cross- interrogatories under protest. The examination hav- ing been taken and the depositions returned, the defend- ants at the last term moved to suppress the same. The motion, not being disposed of, is now repeated. One ground of the motion is, that the complainant and his wife are not competent witnesses in the case. In general, the competency of witnesses in the United States courts in civil cases is governed by the law of the state in which the court is held. Such was the rule en- acted by the statute of July 6, 1862 (12 Stat. 588). But Congress has specially regulated the subject now be- fore the court. By the act of July 2, 1864 (13 Stat. 351), it was declared, amongst other things, that there should be no exclusion of any witness in the federal courts be- cause he was a party to, or interested in, the issue tried. This act was modified by that of March 3, 1865 (13 Stat. 533) , by which it was enacted that in actions by or against executors, administrators or guardians, neither party should be allowed to testify against the other as to any transactions 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. This act is a recogni^tion of the glaring injustice it would in- volve, to permit one party to propound himself as a wit- ness in his own behalf as to a transaction between him and a deceased person, who can no longer give his ver- 224 ESLAVA V. MAZANGE sion of the affair. If the law were to allow a man to wait until his antagonist were dead, and then to sue his heirs, and put himself upon the witness-stand and give his version of the affair, with no one to contradict or qualify his testimony, it would be as gross a prostitution of the forms of law, as to allow a man to be judge in his own cause. Every honest mind revolts against it. There may be special cases, it is true, in which the court can see that no injustice would be done by calling on a party to testify, even though his adversary be deceased. But it is useless to attempt to anticipate such cases. When they arise it will be for the court, and not the party himself, to suggest that he be called. Or, if he make the suggestion, the other party ought at least to be heard upon it. It is claimed in this case that the court has made an order to take the testimony. But how was it made? It was an ex parte order taken before the defendants were subpoenied to appear in the cause. When the statute authorizes such testimony to be taken if "required by the court," it does not refer to such a requirement or order as that which was made in this case. If an ex parte order can be got in this way, the statute would be practically abrogated. The reservation of power in the court to require the evidence to be taken was made in order to provide for such extreme and special cases as might arise, in which it would be a great hardship not to take it. The court will exercise this power with great care and caution. This case is one in which it would be eminently im- proper to allow the evidence. The complainant seeks to set up a parol trust in property conveyed away by him over twenty years ago, and possessed by the grantee and his assigns ever since. It would be most dangerous to allow a party to prove his own case under such circum- stancfes, after his grantee was dead. Whether it is prov- EVIDENCE IN CHANCEEY 225 able at all is another question, not now before the court. But no man's property would be safe under such a rule of evidence. Of course, the wife is incompetent to testify for or against her husband. The fact that the Bank of Mobile has filed a cross-bill in the case can make no difference. The order to examine the parties is taken on behalf of the complainant, not on behalf of the bank, and, if it were taken on behalf of the bank, it would not help the case. The bank is not the "opposite party" referred to in the act who is author- ized to call the plaintiff as a witness. The "opposite" party meant is that party against whom the evidence is sought to be used. The interests of the complainant and of the bank in the matter are the same. The testimony is clearly incompetent and must be disallowed, and the depositions suppressed. It is urged that the vdtnesses were old and infirm, and, therefore, that the order to take their testimony was strictly regular under the seventieth rule in equity. That rule was not originally intended for the examina- tion of a party ; and it may be questioned whether, under any circumstances, it ought to be extended to the case of a party propounding himself as a witness. But it cer- tainly cannot legalize testimony taken as the plaintiff's has been taken in this case. It may also be urged that the order for taking the testimony must stand until it is regularly discharged. It is undoubtedly the general rule that, after the close of the term in which an order is made, it stands until it is regularly discharged. But orders obtained upon motion may be discharged upon motion; and a fortiori, orders obtained ex parte may be thus discharged which have never been assented to, but always resisted by the other party; and a motion to suppress depositions fairly brings up the regularity of an ex parte order directing them to be taken, as well as the competency of the wit- nesses examined, if the party moving to suppress has E. p. C— 15 226 LATHEOP ET AL. V. BRAMHALL never done anything to waive the objection. From an examination of the minutes and files in this case, I am satisfied that the defendants have taken every oppor- tunity fairly in their power to express their opposition to the testimony of these parties, as well as to the taldng of it by deposition. - The motion to suppress the depositions will be granted ; but, as they were taken under an order of the court, though an irregular order, the cause will be continued until the next term and the time for taking testimony enlarged until the rule day in September, to enable the complainant to take other testimony in the cause, with like liberty to the defendants. 67. LATHEOP ET AL. v. BRAMHALL 64 N. T. 365 MrLLEB, J. : Upon the trial of this action the defend- ants ' counsel objected to the admission of certain evi- dence offered by the plaintiffs, and the decision of the referee was reserved in several instances until the close of the plaintiff's evidence, when the referee proceeded to dispose of the objections to the admission of testi- mony, the rulings on which had been reserved. He re- fused to decide as to the persons affected by some por- tions of the evidence, holding that these questions could only be determined when the whole evidence was in, and, to the extent named, overruled the objections made by the defendants' counsel, who insisted that they were en- titled to an absolute ruling upon the several questions, which the referee refused to give, and excepted to his several decisions thus made. Upon one of the rulings of the referee reserving his decision, defendants' coimsel excepted to the reservation. In the subsequent stages of the case the referee made similar rulings, declining to de- EVIDENCE IN CHANCERY 227 cide against wMcli defendant the evidence was allowed ; and, at the close of the entire testimony, he declined to decide any of the questions thus reserved, stating that this would be determined on the decision of the case. Without enumerating the various rulings of the referee upon the questions stated, it is suflScient to say that he, among other decisions, refused to rule whether a memorandum received in evidence, the admission of which will be hereafter particularly considered, should be regarded as evidence against the defendant Bramhall alone, or against all or any of the other defendants. He made the same reservation until the close of the testi- mony upon the question raised whether the acts or dec- larations of Clews were binding on the defendants other than the firm of which he was a member, also in respect to whether the letters written by Clews, and introduced upon the trial, were evidence. The evidence which was thus admitted conditionally and in regard to which the referee reserved his decision, affected the most important issues in the case, and the principal question involved, which was the liability of all of the defendants for the indebtedness, to recover which the action was brought. If the evidence tended to show the liability of any one of the parties, it would be to that extent entirely competent. Whether it affected more than a single one, or all of them, could not well be determined at the time when the testimony was intro- duced, and might depend upon evidence which was subse- quently given which tended to establish the liability of the defendants. It cannot always be decided at the mo- ment when such testimony is offered as to what effect it may have, and when this cannot be done, there in no ob- jection to a reservation of the decision for the time being. Some discretion must be allowed to the judge or referee in regard to questions of this kind. Where the trial is before a jury in open court, there would be an eminent propriety in a decision by the judge as to the applicabil- 2SS LATHEOP KT AL. V. BRAMflALL ity of such evidence before the case is finally submitted to their consideration; and then he should determine as to its effect in respect to any particular party, and give proper instructions in regard to it upon being requested to do so. (See Eaymond v. Howland, 17 Wend., 389.) Under such circumstances, it is not apparent how the rights of the parties could be seriously affected by the reservation of the judge 's decision. Upon a trial before a referee, there appears to be far less urgent necessity for the decision of questions of this character, even at the close of the case. As he takes the place of the jury, he is to balance the testimony and decide where the weight lies ; and in so doing, must determine to what ex- tent the evidence thus objected to bears upon the differ- ent parties. He can make a proper discrimination as to how far it affects one or more of the parties in most cases ; and if this can be done, no injury can result from such a course of procedure. It is not apparent in the case before us how the defendants' interest could have been affected injuriously by the action of the referee, or their rights in any way impaired; and unless such was the case, no rule of law has been violated, and there is no legal error which will justify a reversal of the judg- ment. An important distinction exists between the reserva- tion of the question as to the effect of evidence and a res- ervation as to its admissibility, and the question arises and is directly presented by one or more of the decisions of the referee, whether the party who raises an objec- tion to evidence offered by his adversary has a right to have such objection passed upon absolutely at the time when it is presented, and whether the refusal to do so is erroneous. We have been referred to a number of de- cisions, mostly in the supreme court, which are supposed to uphold the doctrine contended for. Although the mar- ginal notes of these cases, and the dicta of some of the judges appear to sanction such a rule, a critical examina- EVIDENCE IN CHANCERY 229 tion will show that it has not been decided in any of them that a judgment must necessarily be reversed when the referee receives evidence reserving his decision. (Cluss- man v. Merkel, 3 Bosw., 402; Brooks v. Christopher, 5 Duer, 216; Peck v. Yorks, 47 Barb., 131; Waggoner v. Finch, 1 N. Y. S. C. [T. & C.J, 145; McKnight v. Dunlop, 5 N. Y., 537, 545.) The precise question was not presented in any of the cases cited, and without discussing them more fully, it is sufficient to say that they are not in point. A contrary doctrine was held in Kerslake v. Schoonmaker (3 N. Y. [T. & C], 524; 8 Hun, 436), where most of these cases are considered. As was held in the case last cited, if the de- cision of the referee might prove injurious, it would be liable to exception. There are cases where it is easy to see tha,t the admission of evidence in this form might em- barrass the defense in determining to what extent testi- mony should be introduced in answer to that which has been admitted under such a restriction. And where the case shows in any way that such a ruling would be prej- udicial to the rights of the party objecting, it would be a subject of exception which would lead to a reversal of the judgment. It is quite as objectionable for a referee to make a mistake in his ruling, generally, as to make a decision reserving the question as to the admissibility of evidence which may in any way prejudice the party. As was well said in Sharpe v. Freeman (45 N. Y., 804), by Judge Folger: "It (the practice referred to) is then not to be commended, however, for it does not conduce to a clear and accurate trial of the action, nor to the explicit presentation of the questions for review." "When rul- ings of this kind are made, they must be considered upon review, the same as if an objection had been made and overruled and an exception taken to the decision of the referee. It is not apparent that any of the decisions which were reserved by the referee could have affected 230 LATHROP ET AL. V. BRAMHALL the rights of the defendant injuriously so as to render them liable to objection, and they therefore do not pre- sent any legal ground for a reversal of the judgment. But a single objection is urged to the testimony which was received unqualifiedly, and that relates to the mem- orandum which was offered and received as evidence. It was objected to not only upon the ground that it w&s not evidence against any of the parties but Bramhall, or against any member of the firm of Livermore, Clewis & Company, except Mr. Clews, but for the reason that it was proved that the contract was outside of the memo- randum. The referee reserved his decision as to the first and second grounds, and overruled the objection as to the third ground. In a subsequent stage of the case a motion was made to strike it out on grounds which were stated and overruled. The remarks already made as to the right of the referee to reserve his decision under the cir- cumstances are a sufficient answer to the first two objec- tions made to its introduction. The other objections now urged will be further considered. The memorandum re- lated to the terms of the purchase of the Frostburgh Coal Company. It stated the amount of capital stock, the number of shares and the price, and that cash was to be paid upon delivery. It also stated that Messrs. Lath- rop and Graham were to have a certain number of shares which were named at cost, as well as certain other mat- ters which it is not material to recite. This paper alone of itself was of but little, if any, importance, as there was no particular contradiction as to the terms of the pur- chase, without oral evidence to establish that the pur- chase was a joint one, and made for the benefit of all the defendants. The evidence in regard to it tended to show that at the time of the alleged meeting of the parties when the sale was made, Bramhall, one of the defendants, made this written memorandum, which was found among his papers, and read it over to those who were present, EVIDENCE IN CHANCERY 231 inquiring whether it was correct or whether the parties who were present should take the stock which was then sold. It was not offered to refresh the memory of the witness, and was not admissible in that point of view, and the rule applicable to such a case cannot be invoked, nor was it competent alone as the contract of the parties, but it was evidence which corroborated and Confirmed the oral proof as it coincided with it as to the terms of the contract. The two together showed what the contract was, and there can be no valid objection where an oral contract is made, to prove that its principal terms were written down and a memorandum made of them and read at the time. The one is not a substitute to the other, and both are properly admissible without violating any rule of law. It is not a case where a vahd contract is made in writing which entirely supersedes the oral contract, but one where an oral contract is entered into, and a memo- randum made at the time as to its general features and characteristics. Eegarding it in this light there would be no reason for striking out the oral testimony as was asked upon the trial in reference to the same matter. An objection is made that the memorandum was not properly identified. There was evidence to show that it was in Bramhall 's handwriting, and that it was the memo- randum made at the meeting, and if there was any defect in this respect the testimony of Bramhall, as to its iden- tity, was of such a character as to render it a fair ques- tion for the referee fo determine whether it was sufiBi- ciently identified. It cannot be claimed that there was such an entire absence of evidence in regard to it as would authorize its rejection for the reason stated, and as there was at least some evidence, it was for the referee to decide as to the weight to be given to the testimony which related to its identity. It is not the province of this court to consider the weight of the evidence upon the question of the joint lia- 232 ALLISON V. DRAKE bility of the defendants. That duty belonged to and has been discharged by another tribunal. As no legal error was committed upon the trial, the judgment must be affirmed, with costs. (Note: This is a case at law, but having been re- ferred to a referee, it is analogous to a case under refer- ence to a master of chancery.) 67A. ALLISON v. DEAKE 145 III. 500 In both the original and in the amended and supple- mental bill, George A. Drake alleges errors apparent on the face of the partition proceedings and decree, and in the latter bill he prays to have the partition pro- ceedings absolutely set aside and vacated, and that a new partition be made. The principal error alleged is, that the partition decree appears to have been entered by the agreement of the adult parties to the suit, and without any hearing upon pleadings and proofs. The facts, as shown by the record, seem to be, that a guardian ad htem for Drake was appointed, who an- swered for his ward instanter; that the cause was re- ferred to a master to take proofs, but that the order of reference was subsequently vacated, and that the com- plainant and the adult defendants having filed an agree- ment in writing consenting to a partition of the prem- ises described in the bill for partition, the cause came on to be heard on the bill, the answer of the guardian ad litem, and said agreement, and that on such hearing the court found the rights of the parties to be as alleged in the bill, and ordered the land to be partitioned accord- ingly, and appointed commissioners to make the parti- tion. There can be no doubt that a decree rendered against an infant under these circumstances is erroneous. We EVIDENCE IN CHANCERY 233 SO held in Gooch v. Green, 102 111. 507. In that case a decree for partition, where one of the parties was an in- fant, was rendered by agreement of the adult parties, the guardian of the infant joining in the agreement. We there held that the agreement could have no bear- ing, as the infant could not be bound or concluded by it ; that, in a proceeding in chancery, a decree can not be properly rendered against an infant, unless it be founded upon or sustained by evidence. So in Quigley V. Roberts, 44 lU. 503, the rule was laid down, that a de- cree can not be rendered against an infant, unless it be on proof of the allegations of the bill. This error in the decree in the partition proceedings would doubtless have been sufficient to entitle Drake to have the decree set aside as against the original par- ties to it. But whether he is entitled to such relief as against Allison or his heirs is quite another question. Allison was a purchaser for value from the grantee in the sheriff's deed, and, so far as appears, bis purchase was bona fide. In Lloyd v. Kirkwood, 112 111. 329, we said: "A decree against an infant, like that against an adult, is absolute in the first instance subject to the right to attack by original bill, for either fraud or error merely, but until so attacked, and set aside or reversed on error or appeal, it is binding to the same extent as any other decree or judgment. This right to attack a decree by original bill may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may, under the statute, prosecute a writ of error for the reversal of such decree. . . . The rule thus established is, of course, subject to the qualification that the decree of a court having jurisdiction of the subject-matter of the suit and the person of the infant against whom it is ren- dered, will not be thus set aside as against third parties who have, in good faith, acquired rights under it ; but as against original parties to the suit and their legal rep- 234 ALLISON V. DRAKE resentatives, the rule as above stated will be enforced." In Freeman on Judgments, sec. 513, it is said: "An absolute decree against an infant is, at least, so far binding on Mm, that he can neither by bill of review, nor by an original bill, nor by any other proceeding, impeach it so as to prejudice the interests of bona fide purchasers without notice. This is equally true, whether the judgment or decree is sought to be set aside on the ground that there was error in the judgment of the court in not giving a day to show cause, or error in other respects in the judgment rendered, or whether the judgment or decree was obtained by the guardian or other representative of the infant, for the purpose of defrauding him of his estate." The rule thus laid down seems to be well sustained by the authorities, and applying it, we are unable to see how, as against Allison and his heirs, any ground is shown for setting aside the partition decree. The decree of the circuit court will be reversed and the cause will be remanded to that court, with directions to dismiss the bill so far as it relates to lots 1 and 2, conveyed by the purchaser at the sheriff's sale to Allison. (Note : Part of the above opinion omitted.) XVII MASTER IN CHANCERY 68. MOSS V. McCALL 75 III. 190, Justice Scott : But there is another reason why this decree must be set aside. In order to ascertain whether the amounts found to be due to complainants from de- fendants, are warranted by the evidence, an investigation of complicated partnership accounts between these parties would be necessary, consisting of transactions ex- tending through a series of years. These accounts in the aggregate amount to many hundred thousands, and per- haps millions of dollars. One witness said, to make all necessary calculations on the basis suggested, would re- quire a lifetime. This may be an exaggerated form of ex- pression, but it would certainly require a very great amount of labor to make all calculations necessary to ad- just the rights of parties. It is not the duty of an appel- late court to assume to perform this labor. The qourt, in the first place, should have settled the rights of the part- ners, whether interest was to be computed on their indi- vidual accounts with the firms, and having determined the basis by an interlocutory decree, should have referred the cause to a competent master to state the accounts, and if either was dissatisfied with the conclusion reached, upon exceptions being filed, the question could have been read- ily determined by tlie court. As it is, the testimony comes before us in a confused mass, rendering it impracticable for us, in any reasonable time, to pass upon the objec- tions to the findings of the court. Counsel will not be permitted, by stipulation or otherwise, to impose upon an appellate court the performance of duties that should 235 236 MOSS V. m'call be performed by a master in cliancery. Where accounts involve large sums of money, and testimony as to the rights of pai'ties, conflicting and unsatisfactory, in con- formity with the rules of chancery practice, the cause must be referred to a master to render a concise and ac- curate statement of the accounts, so that the same may be readily comprehended, and any objection taken passed upon understandingly. This is the well recognized and established practice in all cases of a complicated char- acter, and should have been adopted in this case. Steere V. Hoagland, 39 111.. 264; Bressler v. McCune, supra; Riner v. Tousle, 62 111. 266; Grouch v. Stenger, 65 111. 481; Dubourg v. The United States, 7 Peters 625. The case of Grouch v. Stenger is an authority exactly in point, where the accounts between the parties were complicated, and the decree was reversed because the case had not been referred to a master to state an account. The correctness of the practice established by these cases is not contested, but to avoid the force of the rule, it is urged this cause was tried on a stipulation, and an affirmance is asked on the principle of Einer v. Tousle, supra. The suggestion has no foundation in the record. It appears the decree was rendered in open court at the December term, 1870. The stipulation signed by counsel at the previous August term, to the effect the case might be heard by the judge at chambers in vacation, although found among the files, is no part of the record, and has not been made so in any manner to entitle it to be con- sidered in this court. But if it was, it does not appear the cause was ever heard upon that stipulation at cham- bers. The record imports verity, and that shows the cause was heard at the December term. Nothing to the contrary appearing, we must regard the case as having been heard and decided in open court. That being so, the rule announced in the cases cited is applicable, and the court should have first determined the rights of the parties, and if it decided an account should be taken, set- MASTER IN CHANCERY 23'7 tied the basis by an interlocutory decree, and then re- ferred the cause to the master in chancery, in accordance with the practice in such cases. Because of the errors indicated, the decree will be reversed, and the cause remanded for further proceed- ings not inconsistent with the views expressed in this opinion. (Note: Part of above opinion, omitted.) 69. WOOSTER v. GUMBIRNNER 20 Fed. Rep. 167 Justice Wheeler : The question in this case, certified by the master, as to whether the orator shall be allowed, in rebuttal, to introduce evidence that is not strictly re- butting to the defendant's evidence, but tends to prove the orator's case, as made in his opening, more fully and specifically than his opening evidence did, must, in the first instance, at least, rest in the sound dis- cretion of the master. The seventy-seventh rule in equity provides that he shall regulate all the proceedings, and shall have full authority "to direct the mode in which the matters requiring evidence shall be proved be- fore him." These provisions must include the order of putting in evidence that would, in any stage of the pro- ceedings, be lawful and competent, and which would not deprive either party of any substantial legal right. The question is remitted to the master. 70. KIMBERLY v. ARMS 129 U. 8. 512 Justice Field : The first question to be considered on the appeal relates to the effect to be given to the findings 238 ferMBEKLY V. AHMg of fact and of law contained in the report of the special master. The court below refused to treat them as pre- sumptively correct, so as to impose upon the excepting parties the burden of showing error in them. It consid- ered the case as presented on the pleadings and proofs, without reference to the report, to which there was ac- corded only the weight due to the careful and well consid- ered opinion of a lawyer chosen by the parties to act as a judge, with qualifications to justify the selection. What that weight was, and in what appreciable way it could affect the judgment of the court, does not appear. A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he may communicate by his findings in such oases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment as to the weight of the evidence. Basey v. Gallagher, 20 Wall. 670, 680; Quinby v. Conlan, 104 U. S. 420, 424. In practice it is not usual for the court to reject the report of a master, with his findings upon the matter referred to him, unless exceptions are taken to them and brought to its attention, and, upon examina- tion, the findings are found unsupported or defective in some essential particular. Medsker v. Bonebrake, 108 U. S. 66; Tilghman v. Proctor, 125 U. S. 136, 149; Cal- laghan v. Myers, 128 U. S. 617, 666. It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the con- sent of the parties. It cannot, of its own motion, or upon MASTER IN CHANCERY 239 the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and de- volve that duty upon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, and report his findings, both of fact and of law, and such ref- erence is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references, without such con- sent; and his determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration— a proceed- ing which is governed by special rules — ^is a submission of the controversy to a tribunal of the parties' own se- lection, to be governed in its conduct by the ordinary rules applicable to the administration of justice in tri- bunals established by law. Its findings, like those of an independent tribunal, are to be taken as presumptively correct, subject, indeed, to be reviewed under the reser- vation contained in the consent and order of the court, when there has been manifest error in the consideration given to the evidence, or in the application of the law, but not otherwise. The reference of a whole case to a master, as here, has become in late years a matter of more common oc- currence than formerly, though it has always been within the power of a court of chancery with the consent of par- ties, to order such a reference. Haggett v. "Welsh, 1 Sim. 134; Dowse v. Coxe, 3 Bing. 20; Prior v. Hem- brow, 8 M. & W. 873. The power is incident to aU courts of superior jurisdiction. Newcomb v. Wood, 97 U. S. 581, 583. By statute in nearly every state, provision has been made for such references of controversies at law. And there is nothing in the nature of the proceed- ing, or in the organization of a court of equity, which 240 KIMBERLT V. AEMS should preclude a resort to it in controversies involving equitable considerations. By the consent in the case at bar it was intended that the master should exercise power beyond that of a reporter of the testimony. If there had been such a limitation of his authority, there would have been no purpose in adding to his power * ' to hear the evi- dence" the power to "decide all the issues between the parties and make his report to the court, separately stat- ing his findings of law and of fact" together with the evidence. To disregard the findings and treat the report as a mere presentation of the testimony is to defeat, as we conceive, the purpose of the reference and disregard the express stipulation of the parties. We are, therefore, constrained to hold that the learned court below failed to give to the findings of the master the weight to which they were entitled, and that they should have been treated as so far correct and binding as not to be disturbed, un- less clearly in conflict with the weight of the evidence upon which they were made. That there was no such conflict is manifest. Upon nearly every important par- ticular relating to the partnership between Arms and Kimberly, and its business, there is hardly any discrep- ancy in the testimony of the parties. It is only as to the circumstances under which Arms obtained his loan from Fairbank, with which he purchased the shares in the Grand Central Mining Company, that there is any seri- ous dispute; and as that transaction is viewed — as the act of a partner or agent of the firm, or as the act of the individual without regard to such partnership — the con- clusion is reached as to his liability to account for them. If the findings are taken as correct — there not being sufficient evidence to justify a disregard of them — there is an end to the controversy, for in accordance with them the firm had an interest in the shares purchased, and the complainant an equitable right to his proportion upon its dissolution. It follows from the views expressed that the decree MASTER IN CHANCEET 241 of the court below must be reversed, and the cause re- manded with directions to confirm the report of the spe- cial master, and to take further proceedings not incon- sistent with this opinion. (Note: Parts of above cause, not bearing on equity procedure, omitted.) 71. McMICKEN v. PERIN 18 Howard 507-511 Justice Campbell : The appellant further objects that his debt was not accurately ascertained by the master upon the decree of reference. In Story v. Livingston, 13 Pet. 359, this court decided that no objections to a master 's report can be made which were not taken before the master; the object being to save time, and to give him an opportunity to correct his errors and reconsider his opinion. And, in Heyn v. Heyn, Jacob 49, it was de- cided that, after a decree pro confesso, the defendant is not at liberty to go before the master without a special order, but the accounts are to be taken ex parte. This court will not review a master's report upon objections taken here for the first time. Our conclusion is, there is no error in the final decree rendered in the circuit court. At a subsequent term, the appellant filed a petition in the circuit court, alleging that he had been deceived by the appellee in reference to the prosecution of the bill, and had consequently failed to make any appearance or answer, and that he had a meritorious defense. He prayed the court to set aside the decree, and to allow him to file an answer to the bill. This petition was dismissed. We concur in the judgment of the circuit court as to the propriety of this course. This court, in Brockett v. Brockett, 2 How. 238, determined that an appeal would not lie from the refusal of a court to open a former de- E. p. C— 16 242 GAINES V. NEW ORLEANS cree, though the petition in that case was filed during the term at which the decree was entered. In Cameron V. McRoberts, 3 "Wheat. 591, it decided that the circuit courts have no power to set aside their decrees in equity, on motion, after the term at which they were rendered. These decisions are conclusive of the questions raised upon the order dismissing the petition. The decrees of the circuit court are affirmed, with costs. (Note: Portion of above case, not bearing on equity pleading and practice, is omitted.) 72. GAINES v. NEW ORLEANS 1 Woods, 104 Opinion by Bradley, J.: Statement of Pacts. In these cases the defendants except to the master's report. It does not appear, by the report of the master's minutes, that the exceptions were taken before him. The rule of practice is that no exceptions will be heard by the court which have not been made before the master, so as to give him an opportunity of considering the same and correcting his report. But as counsel on both sides have evidently acted under a misapprehension of the rule, I will not overrule the exceptions on that ground, especially as some of them are of great importance to the rights of the parties. But it is desirable that the rule should be observed, and hereafter, in the absence of very special circumstances, the court will feel bound to en- force it. It was declared by the supreme court of the United States in McMicken v. Perin, 18 How., 507, and in other cases there referred to. The principal exceptions are : 1. That the defendants did not realize the rents and profits which the master has charged them with. As this is a matter of fact aris- ing from the evidence, the court will not undertake to MASTER IN CHANCERY 243 re-examine and re-try the whole case ; but will allow the report to stand, unless some particular matter is pointed out in which the master has committed an error, or unless it be showto that he has adopted some erroneous principle on which his account or calculation is based. (Note : Portion of above case, not bearing on Equity Pleading and Practice, is omitted.) XVIII DECREES 73. MEAGHER v. THRESHER CO. 145 U. 8. 608 Chief Justice Fulleb: One McKusick recovered judgment in the district court of Washington county, Minnesota, against the corporation of Seymour, Sabin & Co., and in aid of execution brought an action praying for a sequestration of the stock, property, things in ac- tion and effects of the corporation, and the appointment of a receiver to take charge thereof and carry on its business until sale or other disposition. A receiver was accordingly appointed, qualified and entered upon the administration of the company's affairs and effects. An order was entered by the court requiring the creditors of the corporation to exhibit their claims in the action, which was done, among others, by the Minnesota Thresher Manufacturing Company to a very large amount. Subsequently the latter company filed an in- tervening petition or complaint in the general winding- up action, Setting forth the names of some sixty share- holders of the Seymour-Sabin corporation, and the amounts of their holdings of stock, and praying that the court make those named, and all other persons who might subsequently be found to be shareholders, parties to the action ; require them to answer the petition ; and enforce the liability in respect of stock held by them which the petition claimed the constitution of the state imposed. It was also prayed that the court determine the amount of the assets of the Seymour-Sabin Company available for the satisfaction of the claims of creditors ; the amount 244 DECREES 245 of its indebtedness ; the number of shares of its capital outstanding between July 5, 1881, and May 10, 1884, dur- ing which time the indebtedness represented by the claims filed was incurred ; the names of the various hold- ers of stock between those dates ; what shareholders were insolvent; what non-resident; what persons were en- titled to share in the assets and to what extent ; and the amount of any other indebtedness on the part of any of the defendants to the Seymour-Sabin Company. The district court made an order impleading the par- ties named as defendants in the action, and requiring them to enter their appearance and answer within a time limited. Among the numerous persons thus made defendants, the plaintiffs in error in this case were in- cluded, and they demurred to the intervening petition or supplemental complaint upon the ground, among others, that the facts stated were not sufficient to con- stitute a cause of action. The petition charged that de- fendants were liable upon their stock to the extent of a sum equal to the par value thereof for the debts of the Seymour-Sabin corporation under section 3, article 10 of the constitution of Minnesota, which provided: "Each stockholder in any corporation (excepting those organ- ized for the purpose of carrying on any kind of manu- facturing or mechanical business) shall be hable to the amount of stock held or owned by him. ' ' The demurring defendants contended that this was a mere direction to the legislature of the state to impose such a liability and was not self-executing. The demurrers of plaintiffs in error and of other de- fendants were sent by order of the district court to a referee to hear and determine, and make, report and file such order as might be proper. Consent by stipulation was given to the making and entry of this order, sub- ject to the right, thereby reserved, "of either party to move, amend, plead over or appeal, as he or they shall be advised after notice of the order determining said issues : 246 MEAGHER V. THRESHER CO. Provided, however, that this stipulation shall not be con- strued to be or operate as the waiver of any rights of any party or parties thereto or of any objection to the jurisdiction of said court which said party, or parties now has or might now urge;" and this stipulation was signed by the attorneys for upwards of sixty defendants. The demurrers were overruled with leave to answer over within twenty days from the entry of the order, and the present plaintiffs in error took an appeal to the supreme court of Minnesota. That court held that the constitutional provision was self-executing and created an individual liability on the part of the stockholder for corporate debts to an amount equal to the amount of stock held or owned by him, and affirmed the order of the district court. Thereupon the writ of error from this court was sued out. We are of opinion that the judgment of the supreme court of Minnesota was not a final judgment within sec- tion 709 of the Revised Statutes. It is a judgment affirm- ing with costs an order which overruled a demurrer. Rule XVIII of the supreme court of Minnesota provides : "Upon the reversal, affirmance, or modification of any order or judgment of the district courts by this court there will be a remittitur to the district court, unless otherwise ordered." 12 Minn. XIV; Manual of Prac- tice, 1872, rule XVIII. The plaintiffs in error upon the return of the case to the district court could plead over, as the order below allowing time for so doing had, be- fore its expiration, been superseded by the appeal. More- over, the record discloses that in this instance the par- ties, in view of taking the appeal, expressly stipulated "that after the decision on said appeal by said supreme court any of said defendants may answer in the court below if they see fit to do so, and may, after said de- cision on appeal, take any action in said lower court which they might take at the present time." It will be observed that plaintiffs in error are only DECREES 247 a portion of the defendants who were proceeded against by the intervening petition, and what has become of the others does not appear. The case should have been de- termined as to all, before our interposition, if justifiable in any view, could be invoked. Under the complaint, accountings must be had and proofs taken as to the amount of the proceeds of the insolvent corporation's estate; the rights of claim- ants therein; the liability of directors and share- holders, if any, upon other accounts, etc., and the amount to be paid by each shareholder must be decreed. If this were a decree of the circuit court, it would come within the rule that to be final the court below should have nothing to do but to execute it if affirmed. Keystone Iron Co. V. Martin, 132 U. S. 91. And as a judgment of reversal by a state court with leave for further proceed- ings in the court of original jurisdiction is not subject to review here, Bostwick v. Brinkerhoff, 106 U. S. 3 ; Eice v. Sanger, 144 U. S. 197, this is also true of a judgment merely affirming in interlocutory order, however appar- ently decisive of the merits. Writ of error dismissed. 74. LOUISIANA BANK v. WHITNEY 121 U. S. 284 Chief Justice Waite: This is a proceeding begun May 22, 1883, by Mrs. Myra Clark Gaines, then in life, to subject a certain sum of $40,000 on deposit in the Loui- siana National Bank to the payment of a judgment in her favor against the City of New Orleans. There is no dispute about the fact that the money in question was on deposit when the proceedings was begun and the bank served with process, but the Board of Liquidation of the City Debt has made claim to it as part of the fund ap- 248 LEWISBURG BANK V. SHEPPET propriated by Act No. 133 of 1880 to the payment and liquidation of the bonded debt of the city. Pending the determination of the questions involved, the court, March 15, 1886, ordered the money paid into the registry of the court. From this order the bank has appealed, and also sued out a writ of error, and the Board of Liq- uidation has likewise appealed. The representatives of Mrs. Gaines, who were made parties to the proceeding after her death, now move to dismiss both the writ of er- ror and the appeals, because the order to be brought imder review is not a final judgment or decree within the meaning of that term as used in the acts of Congress giv- ing this court jurisdiction on appeals and writs of error. We have no hesitation in granting the motion. The court has not adjudicated the rights of the parties con- cerned. It has only ordered the fund into the registry of the court for preservation during the pendency of the litigation as to its ownership. Such an order it has al- ways been held is interlocutory only and not a final de- cree. Forgay V. Conrad, 6 How. 204; Grant v. Phoenix Ins. Co., 106 U. S. 431. If in the end it shall be found that the fund belongs to the Board of Liquidation, it can be paid from the registry accordingly, notwithstanding the order that has been made. The money when paid into the registry will be in the hands of the court for the bene- fit of whomsoever it shall in the end be found to belong to. Both the appeals and the writ of error are dismissed. 75. LEWISBUEG BANK v. SHEFFEY 140 U. 8. 445 Chiei* Justice Fuller : Describing the decree of May 4, 1878, as "interlocutory," and that of November 30, 1887, as "final," appellant assigns errors as follows: That the decree of May 4 is erroneous, because it in ef- DECREES 249 feet overruled the demurrer to the bill; and denied ap- pellant's motion to file its amended and supplemental answer; and that the decree of November 30, 1887, is er- roneous, because (1) it rejected the petition for a rehear- ing; (2) held the deed of November 20, 1876, valid; (3) overruled appellant's exceptions to the master's re- port; (4) held that the deed to plaintiffs had priority over that of October 11, 1875; (5) held that the debt of appellant was not entitled to priority under the provi- sions of the deed to plaintiffs; and because (6) it should have held that the appellant was entitled to the fund in controversy, if for no other reason, upon the ga-ound of its judgment obtained after Grlendy had acquired the legal title to the land. If the decree of May 4, 1878, were final, no errors can now be assigned to it or considered upon this appeal. And if that decree, being final, cov- ered all the grounds of error urged to the decree of No- vember 30, 1887, then the latter decree must necessarily be affirmed. The application for a rehearing was con- fessedly made after the adjournment of the May term, at which the prior decree was entered, and too late if that decree were final. Equity Rule 88; McMicken v. Perin, 18 How. 507, 511; Eoemer v. Simon, 91 U. S. 149; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 224. The controversy raised by the pleadings and to be de- termined by the court was whether the property passed under the deed to plaintiffs, or under that to Mathews and whether the bank was entitled to priority. The ef- fect of the sale by consent was merely to substitute the fund in place of the real estate and did not change the issues. On behalf of the bank it was claimed that the trust deed to the plaintiffs was void on its face, and that by the terms of that deed, if valid, the debt of the bank was preferred. By the amended and supplemental an- swer, which it sought to file, the bank raised the question that Glendy, not having the legal title when he executed 17 250 l/EWlSBURG BANK V. SHEPPEV the deed to the plaintiffs, and having by his prior deed to the bank divested himself of his equitable title, the plain- tiffs did not, as Glendy's grantees, under a conveyance "without any warranty whatever," occupy the position of bona fide purchasers, nor were they protected by the recording statutes of the State; and the facts set forth therein involved, moreover, the position urged in the petition for rehearing, that the deed to the plaintiffs be- ing simply a grant without covenants, Glendy's after- acquired legal title did not inure to them and that the bank became entitled to the fund by virtue of its judg- ment, which was recovered after Glendy acquired the legal title. So that all these matters were necessarily passed upon by the court and the decree in terms de- clared that the facts stated in the amended and supple- mental answer did not change the rights of the parties in the cause, made the injunction perpetual and directed the fund to be brought into court for distribution "in accordance with the provisions of the deed of Eobert J. Griendy to Hugh W. Sheffey and James Bumgardner, Jr., bearing date on the 20th day of November, 1876. ' ' This finally determined the entire controversy litigated be- tween the parties and nothing remained but to carry the decree into execution. The bringing of the fund into court was for the final distribution as decreed, and not to be held pending the ascertainment of the principles upon which it should be distributed. Hill v. Chicago & Evanston Eailroad Co., ante, 52, and cases cited. The subject was much considered and many cases re- ferred to and classified and the distinctions indicated, in Keystone Iron Co. v. Martin, 132 U, S. 91. It is there shown that where the entire subject-matter of a suit is disposed of by a decree, the mere fact that accounts re- main to be adjusted and the bill is retained for that pur- pose, does not deprive the adjudication of its character as a final and appealable decree. It is true, as pointed out by Mr. Justice Field in Hill v. DECREES 251 Chicago & Evanston Railway, supra, that an appeal may be taken from a decree in an equity cause, notwithstand- ing it is merely in execution of a prior decree in the same suit, for the purpose of correcting errors which may have originated in the subsequent proceeding. This was so held in Chicago & Vincennes Eailroad v. Fosdick, 106 U. S. 47, 83, and was the rule sanctioned and adopted in Forgay v. Conrad, 6 How. 201, and Blossom v. Mil- waukee, &c., Eailroad Co., 1 Wall. 655. An appeal will lie from such decrees according to the nature of the sub- ject-matter and the rights of the parties affected. But the errors assigned here relate solely to matters included within the adjudication of May 4, 1878, except as the refusal to permit the petition for rehearing to be filed may be otherwise regarded, though that petition was itself predicated upon one of the aspects of the con- troversy. And as to that allegation of error, we have al- ready seen that the objection is not well taken, even if open to consideration at all. Brockett v. Brockett, 2 How. 238. Decree affirmed. 76. ALLISON ET AL. v. DRAKE ET AL. 145 III. 500 Chief Justice Bailey: The appellees have moved to dismiss the appeal, on the ground that the decree ap- pealed from is not final. This contention is based upon the fact that the decree, after definitely and finally de- termining the rights of the parties by vacating and set- ting aside the decree in the former partition suit and all proceedings thereunder and ordering a reconveyance to the complainants by the representatives of Allison of lots 1 and 2, and also fixing the respective interests of the several joint tenants in the land in controversy and ordering partition thereof between them and appoint- 252 ALLISON ET AL. V. DRAKE ET AL. ing cominissioners for that purpose, also awards the complainants an accounting in respect to the use and oc- cupation of the lands, and refers the cause to the master to take and state such account. We are of the opinion that the decree is final so as to authorize an appeal to this court, notwithstanding the order for an accounting. A final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined, but when it finally fixes the rights of the parties, it is final and may be reviewed on appeal or writ of error. Myers v. Manny, 63 111. 211; Bostwick v. Brinkerhofif, 106 U. S. 3; St. L., I. M. & S. R. E. Co. v. Southern Express Co., 108 id. 24. That is done by the present decree, and the proceedings under the order of reference are only in the nature of an execution of the decree. The point is made that the bill, being a bill of review, or a bill in the nature of a bill of review, is insufficient because it fails to set out, in extenso, the pleadings and decree in the matter sought to be reviewed, and in sup- port of this contention we are referred to Aholtz v. Dur- fee, 122 111. 286, and other decisions in which the same rule is laid down. In this ease, however, the question as to the insufficiency of the bill in this respect is raised for the first time in this court. No exception was taken to the frame-work of the bill in the court below by demur- rer or otherwise, but the defeudants answered, and went to the hearing on pleadings and proofs, treating the bill throughout as though it contain a sufficient statement of the proceedings sought to be reviewed. We think this may be regarded as a waiver by the defendants of the defect in the bill, and an admission on their part that the proceedings referred to were sufficiently set out to pre- sent the errors of law which were claimed to be apparent upon the face of the record, and to entitle the complain- ants to the relief prayed for. An objection to a bill of DECREES 253 this character raised for the first time in this court can not be sustained. But we are of the opinion, in the first place, that the , decree rendered in this case, so far as it relates to Eliza- beth Marsh, can not be sustained. The final decree sought to be reviewed was entered November 30, 1881, and she became a party to the present suit, by inter- vening and joining as co-complainant to the supple- mental bill, March 4, 1889. She thus delayed the bring- ing of her bill of review seven years and a little over three months after the rendition of the decree which she now seeks to set aside. She was laboring under no dis- ability which stood in the way of her bringing her suit to have the former decree reviewed or to impeach it for fraud, nor are any adequate reasons given for the de- lay. Under these circumstances, her bill is brought too late. A bill of review for matters apparent upon the face of the record can be brought only within the time allowed for the bringing of a writ of error, viz., five years, the complainant being under no disability. Dol- ton V. Erb, 53 111. 289; Pestel v. Primm, 109 id. 353. And the rule is the same in case of a cross-bill in the nature of a bill of review to impeach a decree. Bell v. Johnson, 111 111. 374. And, in general, a bill of review to impeach a decree for fraud is barred in the same time, unless some very clear reason is shown for the delay. Sloan V. Sloan, 102 111. 581; Chicago Building Society v. Haas, 111 id. 176. In the next place, there is no evidence tending to charge Allison, the grantee of the purchaser at the exe- cution sale, with either actual or constructive notice of the fraud. The purchaser at the execution sale was the solicitor himself, and he of course was chargeable with notice. But not so as to Alhson, his grantee. The bill charges that Allison was the real purchaser at the exe- cution sale, and that the sohcitor bid off the property merely as his agent, and immediately, on obtaining 254 ALLISON ET AL. V. DRAKE ET AL. title, conveyed the land to Mm in pursuance of such pre- vious arrangement, but there is no evidence tending to sustain that allegation. So far as we can see, there is nothing in the record tending to charge Allison with actual or implied notice of the alleged fraud of the solicitor at the time the land was conveyed to him, but it is claimed that he was chargeable with constructive notice. As has already been stated, Mrs. Marsh and the guardian of George A. Drake, shortly prior to the execution sale, filed their bill setting up the alleged fraud of the solicitor, and praying for an injunction restraining the sale. That bill was pending at the time of the conveyance to Alli- son, and was afterwards dismissed without a hearing or decree, on motion of the complainants therein. The claim is set up that as that bill was pending at the time Allison obtained title, he was chargeable with con- structive notice of its allegations, upon the principle of lis pendens. There is no pretense that Allison had any actual no- tice of the bill or its allegations, and we are of the opin- ion that the rule of constructive notice by lis pendens has no application. "The doctrine of lis pendens is one by which a suit in chancery prosecuted in good faith, and followed by a decree, is constructive notice to every person who acquires from a defendant pendente lite an interest in the subject-matter of the litigation of the legal and equitable rights of the plaintiff, as charged in the bill and established by the decree." Bispham's Eq., sec. 274. It is therefore held that a purchaser of real estate pendente lite, in circumstances such that he is affected with notice as by lis pendens, is bound by the result of the litigation, and takes subject to the rights so determined. Cable v. Ellis, 120 111. 136; Alwood v. Mansfield, 59 id. 496; Dickson v. Todd, 43 id. 504; Jack- son V. Warren, 32 id. 331 ; Asher v. Mitchell, 9 111. App. 335. The doctrine of lis pendens rests upon the legal btecttEfis 255 iiecessity of subjecting to the final decree all rights ac- quired pendente lite without pausing to bring parties acquiring such rights into court and to make them par- ties to the litigation, and it consequently has no place where there is no adjudication and no decree, and the biU is voluntarily abandoned or dismissed by the com- plainants. But there is another reason why the bill in this case cannot have the eflfect of a lis pendens. There is no evi- dence in the record that any summons was ever issued thereon or served, or that the defendants to the bill ever appeared in court in the suit. A lis pendens begins, where a bill is filed, from the service of summons and not before, and where there is no service and the de- fendant does not appear, there is no lis pendens. Grant V. Bennett, 96 111. 513; Hallorn v. Trum, 25 id. 247; Bank v. Taylor, 131 id. 376. (Part of opinion not in point, omitted). 77. FORGAY v. CONRAD 6 Howard 201 Taney, C. J.: Statement of Facts: A motion has been made to dismiss this appeal on the ground that the dfecree in the circuit court is not a final decree within the meaning of the acts of Congress of 1789 and 1803. The bill was filed by the appellee, as the assignee in bankruptcy of a certain Thomas Banks, in the circuit court of the United States for the district of Louisiana, against the appellants, and Banks, the bankrupt, and three other defendants. The object of the bill was to set aside sundry deeds made by Banks for lands and slaves, which the complainant charged to be fraudu- lent, and for an account of the rents and profits of the property so conveyed; and also for an account of sun- 256 FORGAY V. CONRAD dry sums of money which he alleged had been received lay one or more of the defendants, as specifically charged in the bill, which belonged to the bankrupt's estate at the time of his bankruptcy. The case was proceeded in until it came pn for hearing, when the court passed a decree declaring sundry deeds therein mentioned to be fraudulent and void, and directing the lands and slaves therein mentioned to be delivered up to the com- plainant, and also directing one of the defendants named in the decree to pay him $11,000, received from the bankrupt in fraud of his creditors, and "that the complainant do have execution for the several matters aforesaid in conformity with law and the practice pre- scribed by the rules of the supreme court of the United States." The decree then directs that the master take an account of the profits of the lands and slaves ordered to be delivered up, from the time of the filing the bill until the property was delivered, or to the date of the master's report, and also an account of the money and notes received by one of the defendants (who has not appealed) in fraud of the creditors of the bankrupt, and concludes in the following words: "And so much of the said bill as contains or relates to matters hereby referred to the master for a report is retained for fur- ther decree in the premises ; and so much of the said bill as is not now nor has been heretofore adjudged and de- creed upon, and which is not above retained for the purposes aforesaid, be dismissed without prejudice, and that the said defendants do pay the costs." Among the deeds set aside as fraudulent is one from the bankrupt to Ann Fogarty, otherwise called Ann Wells, for two lots in the city of New Orleans, and sundry slaves, which she afterwards conveyed to Forgay, the other appellant. Both of these deeds are declared null and void, and the lots, with the improvements thereon, and the negroes, directed to be delivered to the complainant for the benefit of the bankrupt's Creditors. This part of the DECREES 257 decree is one of the matters of which the complainant was to have execution. But the account of the rents and profits of this property is, like other similar ac- counts, referred to the master and reserved for fur- ther decree. The appeal is taken by Samuel L. Forgay and Ann Pogarty, otherwise called Ann Wells; and they alone are interested in that portion of the decree last above mentioned. The bankrupt and the three other defend- ants have not appealed. These three defendants claimed other property, which had been conveyed to them at different times, and by separate conveyances, as men- tioned in the proceedings. And it was not, therefore, necessary, that they should join in this appeal. Todd v. Daniel, 16 Pet. 523. The question upon the motion to dismiss is whether this is a final decree within the meaning of the acts of Congress. Undoubtedly it is not final in the strict, tech- nical sense of that term. But this court has not hereto- fore understood the words "final decree" in this strict and technical sense, but has given to them a more lib- eral, and, we think, a more reasonable construction, and one more consonant to the intention of the legislature. In the case of Whiting v. The Bank of the United States, 13 Pet. 15, it was held that a decree of foreclosure and sale of mortgaged premises was a final decree, and the defendant entitled to his appeal without waiting for the return and confirmation of the sale by a decretal order. And this decision is placed by the court upon the ground that the decree of foreclosure and sale was final upon the merits, and the ulterior proceedings but a mode of executing the original decree. The same rule of con- struction was acted on in the case of Miehoud and others V. Girod and others, 4 How. 503. The case before us is a stronger one for an appeal than the case last men- tioned. For here the decree not only decides the title to the property in dispute, and annuls the deeds under E. p. C.— 17 258 FOEaAT V. CONRAD which the defendants claim, but also directs the prop- erty in dispute to be delivered to the complainant and awards execution. And according to the last paragraph in the decree, the bill is retained merely for the pur- pose of adjusting the accounts referred to the master. In all other respects, the whole of the matters brought into controversy by the bill are finally disposed of as to all of the defendants, and the bill as to them is no longer pending before the court, and the decree which it passed could not have been afterwards reconsidered or modified in relation to the matters decided, except upon a petition for a rehearing, within the time pre- scribed by the rules of this court regulating proceed- ings in equity in the circuit courts. If these appellants, therefore, must wait until the accounts are reported by the master and confirmed by the court, they will be subjected to irreparable injury. For the lands and slaves which they claim will be taken out of their pos- session and sold, and the proceeds distributed among the creditors of the bankrupt, before they can have an opportunity of being heard in this court in defense of their rights. We think, upon sound principles of con- struction, as well as upon the authority of the cases referred to, that such is not the meaning of the acts of Congress. And when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is en- titled to have such decree carried immediately into exe- cution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, al- though so much of the bill is retained in the circuit court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pur- suant to the decree passed. This rule, of course, does not extend to cases where DECRElig 259 money is directed to be paid into court, or property to be delivered to a receiver, or property held in trust to be delivered to a new trustee appointed by the court, or to eases of a like description. Orders of that kind are frequently and necessarily made in the progress of a cause. But they are interlocutory only, and intended to preserve the subject matter in dispute from waste or dilapidation, and to keep it within the control of the court until the rights of the parties concerned can be adjudicated by a final decree. The case before us, how- ever, comes within the rule above stated, and the motion to dismiss is therefore overruled. We, however, feel it our duty to say that we cannot approve of the manner in which this case has been disposed of by the decree. In limiting the right of appeal to final decrees, it was obviously the object of the law to save the unnecessary expense and delay of repeated appeals in the same suit, and to have the whole case and every matter in con- troversy decided in a single appeal. In this respect the practice of the United States chancery courts differs from the English practice. For appeals to the house of lords may be taken from an interlocutory order of the chancellor, which decides a right of property in dis- pute; and therefore there is no irreparable injury to the party by ordering his deed to be canceled, or the property he holds to be delivered up, because he may immediately appeal; and the execution of the order is suspended until the decision of the appellate court. But the case is otherwise in the courts of the United States, where the right to appeal is by law limited to final de- crees. And if, by an interlocutory order or decree, he is required to deliver up property which he claims, or to pay money which he denies to be due, and the order immediately carried into execution by the circuit court, his right of appeal is of very little value to him, and he may be ruined before he is permitted to avail himself of the right. It is exceedingly important, therfore, 260 B*OEGAT V. CONtlAr) that the circuit courts of the United States, in framing their interlocutory orders, and in carrying them into execution, should keep in view the difference between the right of appeal as practiced in the English chancery jurisdiction, and as restricted by the act of Congress, and abstain from changing unnecessarily the possession of property or compelling the payment of money by an interlocutory order. Cases, no doubt, sometimes arise where the purposes of justice require that the property in controversy should be placed in the hands of a receiver, or a trustee be changed, or money be paid into court. But orders of this description stand upon very different principles from the interlocutory orders of which we are speaking. In the case before us, for example, it would certainly have been proper, and entirely consistent with chancery practice, for the circuit court to have announced, in an interlocu- tory order or decree, the opinion it had formed as to the rights of the parties, and the decree it would finally pronounce upon the titles and conveyances in contest. But there could be no necessity for passing immediately a final decree, annulling the conveyances, and ordering the property to be delivered to the assignee of the bankrupt. The decree upon these matters might and ought to have awaited the master 's report ; and when the accounts were before the court, then every matter in dis- pute might have been adjudicated in one final decree ; and if either party thought himself aggrieved, the whole mat- ter would be brought here, and decided in one appeal, and the object and policy of the acts of Congress upon this subject carried into effect. These remarks are not made for the purpose of censuring the learned judge by whom this decree was pronounced, but in order to call the attention of the circuit courts to an inconvenient practice into which some of them have sometimes fallen, and which is regarded by this court as altogether incon- sistent with the object and policy of the acts of Congress DECREES 261 in relation to appeals, and at the same time needlessly burdensome and expensive to the parties concerned, and calculated, by successive appeals, to produce great and unreasonable delays in suits in chancery. For it may well happen that, when the accounts are taken and re- ported by the master, this case may again come here upon exceptions to his report, allowed or disallowed by the circuit court, and thus two appeals made necessary, when the matters in dispute could more conveniently and speedily, and with less expense, have been decided in one. 78. EAILROAD COMPANY v. SWASEY 23 Wallace 405 Statement of Facts: The decree in this case was to the effect that certain shares of stock in the North Caro- lina Railroad Company belonging to the state of North Carolina, were pledged as security for certain certificates of debt, and that the plaintiff and those he represented were entitled to have the stock sold to pay past-due cou- pons. It also ordered that the commissioner take an account as to interest due and to become due, the propor- tion of stock applied to the payment of interest, and that unless the state shall have made provision for the pay- ment of such interest by a certain day, the stock be sold. Waite, C. J.: An appeal may be taken from a de- cree of foreclosure and sale when the rights of the par- ties have all been settled and nothing remains to be done by the court but to make the sale and pay out the pro- ceeds. This has long been settled. Eay v. Law, 3 Cranch. 179 ; Whiting v. Bank of the United States, 13 Pet. 15. The sale in such a case is the execution of the decree. By means of it the rights of the parties are settled and en- forced. But to justify such a sale without consent, the amount due upon the debt must be determined and the 262 BAILROAB COMPANY V. SWASEY property to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of spe- cific property cannot issue until the property to be sold has been judicially identified. Such adjudications re- quire the action of the court. A reference to a master to ascertain and report the facts is not sufficient. A mas- ter's report settles no rights. Its office is to present the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the par- ties. With these well-settled principles as our guide, it is easy to see that the decree here appealed from is not final. The amount of the debt which the state must pay in order to stop the sale has not been determined, neither has it been determined what amount of stock may be sold if the debt is not paid. In each of these questions the state has a direct interest, and through its representa- tives in court has the right to be heard. They must be settled before the litigation can be said to be at an end. The amount of the debt and the proportion of stock apphcable to its payment are, therefore, still open for future adjudication between the parties. Thus far the court has done no more than declare that for the se- curity of the payment of so much as is due, the plaintiff and those he represents have a lien upon their equitable proportion of the stock, and that the lien may be en- forced by sale, if payment of the debt is not made. It has also declared its determination to order a sale, if payment of the debt is not made or satisfactorily pro- vided for by April 1, 1875. In order that proper action may be had when this time arrives, the master has been directed to state the account of the indebtedness to the plaintiff and those he represents, and of their proportion DECREES 263 of securities pledged by the state. In this, as it seems to us, the court has acted upon the suggestion in Forgay V. Conrad, and by an interlocutory order announced the opinion it had formed as to the rights of the parties and the principles of the decree it would finally render, leav- ing the entry of the final decree in form to be made when the amount due has been ascertained and an apportion- ment of the stock made. In this way the rights of all parties can be protected and no injustice done. In this connection it may not be improper to call the attention of the circuit courts to what was said by Chief Justice Taney in Forgay v. Conrad, as to the care which ought to be exercised in the preparation of decrees of this character. Much time of this court and expense of litigants will be saved if more attention is given to the form of decrees when entered. 79. LESTER v. THE PEOPLE 150 III. 408 Me. Chief Justice Shope: In the original suit of Berkowitz v. Lester et al., out of which this controversy arises, the circuit court made an order upon the defend- ants to place the books in which the business transactions of the defendants with the plaintiff and other persons were entered, and showing all transactions in which the defendants, as a firm and as individuals, were in any way interested, in the possession of the clerk of the court, that they might be inspected by the plaintiff and his at- torney, with leave to examine and take copies, in order that they might, as it was claimed, prepare for the trial of said cause. Before any proceedings were taken in execution of that order, the defendants brought the case to this court by writ of error, for the purpose of having that order of the circuit court reversed. We then dis- 264 LESTER V. THE PEOPLE missed the writ of error, upon the sole ground that the order was not final judgment, reviewable upon appeal or error. In delivering its opinion in that case this court said: "It was the privilege of the defendants either to obey the order or to stand in defiance of the power of the court. Had the court attempted to enforce obedience to its order by the imposition of a fine, with an order for execution, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment would be final, and from which an appeal might be taken or to which a writ of error would lie. That would conform exactly with the rule stated by the court in Blake's case, 80 111. 523. On the reviewing of such a judgment of the court that might de- prive defendants either of their property or of their lib- erty, the propriety of the preliminary or interlocutory order could be considered, otherwise not." (Lester et al. V. Berkowitz, 125 111. 307.) After this decision the cir- cuit court attached the defendant for contempt, for re- fusing to obey said order, and imposed a fine of $200 upon the defendant, Lester, and ordered that he stand committed until the fine and costs of the proceedings were paid, thus bringing the case within the rule there announced, and making the case one in which an appeal will lie. As a general rule, mere errors in making interlocutory orders will furnish no justification for refusing to obey the same, where they do not subject the party to the pay- ment of money or imprisonment. If the party against whom such order is made wishes to contest the validity or propriety of the order, he may refuse to obey, and in the further proceeding for contempt he may show in defense that the court had no authority to make the order, and if his defense is disallowed, and judgment is entered against him for a sum of money by way of fine, enforcible by execution or imprisonmept, an appeal in his favor will lie. DECREES 265 At common law, in suits upon sealed instruments, of which it was necessary to make profert, the defendant might demand oyer, and thereby have an inspection of the instrument sued upon. This was limited to contracts or other instruments under seal, and technically known as ^eeds. By section 20, chapter 110, of our statute relating to practice, this rule is extended to all instruments declared on, whether under seal or not. It reads: "It shall not be necessary, in any pleading, to make profert of the instrument alleged, but in any action or defense upon an instrument in writing, whether under seal or not, if the same is not lost or destroyed, the opposite party may have oyer thereof, and proceed thereon in the same manner as if profert had been properly made according to the common law. " And it was held, under this statute, that the court might compel the production of the original instrument sued on. Mason v. Buckmaster, Beecher's Breese, 27. Oyer or inspection is confined to instruments in writ- ing declared upon and constituting the cause of action, or set up in a plea by way of defense. It does not apply when the deed is stated as mere inducement. The com- mon law also furnished another mode, which was not con- fined to instruments under seal. This was by application, pending the action, to the equitable jurisdiction of the court for an order to inspect. (Pollock on Documents, 1.) The order for inspection was obtainable "only in a very limited number of cases, as, where one party could be considered as holding a document as agent or trustee of the party seeking inspection, or where the applicant was a party to a written contract of which but one part is executed, or where one part has been lost or destroyed, and it was also, in general, considered necessary that the party applying should be a party to the instrument which he sought to inspect ; and although a trial was sometimes postponed for the purpoe of enabling a party to take pro- ceedings in equity, yet whenever m application to the LESTER V. THE PEOPLE court of law was in the nature of a bill for discovery, they invariably refused to grant inspection. Ibid. 3. It is claimed, however, that the order for the produc- tion and inspection of the defendants ' books is authorized by the statute relating to evidence, (sec. 9, chap. 51,) which provides that ' ' the several courts shall have power in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue." The evident purpose and design of this statute was to furnish to a party litigant a speedy and summary mode by which, under the order of the court, to obtain written evidence pertinent to the issue which might be in the possession and control of his adversary, and thus obviate the nec- essity of a bill of discovery, seeking the same end. It is manifest that it contemplates the production of evidence on the trial of the cause which the party applying there- for is entitled to introduce in support of his case, and which the other party withholds. It is only such books or writings as contain evidence pertinent to the issue that are required to be produced, and it is for the purpose of enabling the party demanding their production to intro- duce such pertinent matter in evidence on the trial. A defendant is not required to disclose matters of evidence relied upon in the defense, and thus inform the plaintiff of his case farther than the pleadings show. Matters purely of defense are the property rights of the defend- ant, which he may dis.close, or not, upon the trial. (2 Phil- lips on Evidence, 330 ; Lawrence v. Ocean, 11 Johns. 245 ; Strong V. Strong, 1 Abb. Pr. 233.) This is undoubtedly the rule, and unless a showing is made, upon good and sufficient cause, that the evidence sought, or that the books and papers required to be produced, contain evi- dence pertinent to the issue on behalf of the party apply- ing therefor, the application should be denied. DECKfiES 267 Tlie plaintiff, in his motion, and affidavits in support thereof, failed entirely to show that the books of the defendant's which he asked to inspect were required for any purpose of evidence in the case. Indeed, it is apparent that the application was not for the production of such books to be used on the trial of the cause, but for the inspection of plaintiff and his counsel out of court, and for the purpose of preparing the case of the plaintiff for trial. It was shown, on the hearing, by the affidavits filed by defendants, that full and complete statements of all the plaintiff's dealings with the defendant firm, or through them, had been furnished, together with a full transcript of his account, and which were attached to the affidavit of the defendant Peters, filed on the hearing of the contempt case. The object and purpose of the appli- cations were to enable the plaintiff and his attorney to inspect, not only the accounts of the plaintiff with the defendants, and all entries made on their books in respect of the dealings between them, but also the inspection of daily purchases and sales of stocks by the defendants during the time of the transactions between plaintiff and defendants, irrespective of to or for whom or for whose account such sales or purchases were made, and the entry of all stocks carried by the defendants for them- selves or others, from day to day, and on each day during the same period. It was sought, and such was the order of the court, that the books of the defendants should be impounded with the clerk of the court indefinitely, for the purposes of such examination and inspection by counsel. Under the statute quoted, the court has power to compel the production of the books of a party to be used in evi- dence on the trial by his adversary, upon proper showing that they contain entries tending to prove the issues ; but the statute can not be construed as giving the court power and authority to take the books and papers of the party and impound them A\dth an officer of the court for inspec- tion or examination out of the presence of the court. The ^68 LfiSTER V. TSE PEOPLE books sougM to be inspected in this case were the prop- erty of the defendants, and contained many entries, as it is shown, of business transactions of the defendants with many other persons, and to large amounts, in which the plaintiff had no interest whatever. The right to compel the production of books as evidence is clear. The right to compel their submission to a general examination and inspection out of the presence of the court, even though in the possession of one of its officers, is entirely a dif- ferent matter. It will not be understood that the rule for the production of books before a master in chancery, in proper cases, is here sought to be stated. It is only such entries as in some way tend to prove a matter material to the issue that are competent to be considered upon compliance with the order to produce the same. It might be, that these books of the defendants might contain entries tending to show illegal transactions upon the stock exchange, or upon the board of trade, of which the entries in such books might become competent evidence against the defendants in penal prosecutions ; but such fact, if it existed, or was shown by affidavit to exist, would furnish no ground or justification for the order made. The stat- ute does not give the right to compel the submission of the books of a party to general inspection or examination for fishing purposes, or with a view to find evidence to be used in other suits or prosecutions. Updyke v. Marble, 44 Barb. 69; Mott v. Consumers' Ice Co., 52 How. Pr. 148 ; Cutler v. Poole, 54 id. 311 ; "Whetman v. Waller, 39 Ind. 515; 2 Best on Evidence, sec. 625. The statute under consideration ought, if possible, to receive such a construction as will not render it in con- flict with the constitution of the State or of the United States. The constitution of this State provides that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. Cooley, in a note to his work on Constitutional Limitations (p. 307), after refer- DECREES 269 ring to a few cases in which the court has ordered a pro- duction of private telegrams, says: "We should suppose, were it not for the opinions to the contrary by tribunals so eminent, that the party could be entitled to a man's private correspondence, whether he obtained it by seiz- ing it in the mail, or by compelling the operator of the telegraph to testify to it, or by requiring the servant to take from his desk his private letters and journals and bring them into court on subpoena duces tecum. Any such compulsory process to obtain it seems a most arbi- trary and unjustifiable seizure of private papers — such an unreasonable seizure as is directly condemned by the constitution." See, also, Kilbourn v. Thompson, 113 U. S. 168; Boyd v. United States, 116 id. 616. Under the constitution, the defendants' private books and papers were protected against unreasonable searches and seizures, and we think that this constitutional right was violated and disregarded by the order of the court. While an order for the production of a party's books on the trial, to be used as evidence, in proper cases and upon proper showing, is not an unreasonable seizure of them, an order by which his books are taken from his custody and committed to that of a third person, for an indefinite period of time, for an inspection, generally, into all of his affairs by the opposite party and his counsel, with leave to take copies of the entries therein, in our opinion is unwarranted by the law, amounts to an unlawful depriva- tion of his property rights, and is in palpable violation of his constitutional right to be secure against unreason- able seizure of his papers and effects. The statute under consideration was not intended to justify such taking and holding of the private books of a litigant. As before said, its purpose is met when the party is required to produce, in open court, all books and papers in his possession or power which contain evidence pertinent to the issue, and reasonable opportunity is given for examination thereof in the presence and under the direction of the court. 2^70 LESTER V. THE PfiOt'LE We are of opinion that the court exceeded its power in requiring the defendants to place their books of account in the hands of the clerk, there to remain indefi- nitely, with leave to the plaintiff and his attorney to make copies of the entries therein, not for the purpose of being then used in evidence under the direction of the court, but for the purpose of enabling the plaintiff to prepare his case, with the advantage of being advised beforehand of the defendant's defense to his action. The defendant had the right to question the propriety of such order, and, as we have seen, to do so he must refuse to obey. The order being unauthorized, he had a right to disregard it, and there was, therefore, error in the imposition of a fine for his disobedience of such order. For the reasons given, the order of July 12, 1887, and the judgment of the court in the attachment proceeding, are reversed. XIX PETITION FOR REHEARING 80. SCOTT V. HORE 1 Hughes 163 Motion for rehearing on the ground of the negligence of defendant's counsel. Hughes, J. : I am to decide whether this motion for a rehearing of the cause can be granted, and whether the decree of this court, entered on the 9th of April, 1874, can be set aside on such motion. I think it is now settled law in Virginia, notwithstanding the remarks of the court in 9 Leigh 289, on the case of Patterson v. Campbell, never reported, that a judgment or decree rendered by default cannot be opened on the ground of the negligence of counsel. In Hill v. Bowyer, 18 Gratt. 382-6, the court of appeals says: "A defendant upon whom process has been served, who wholly neglects his defense, or contents himself with employing a lawyer who practices in the court to defend him without giving any information about his defense, or inquiring whether he is attending to the case, is not entitled to relief on the ground of sur- prise, however grossly unjust the decree may be." For other decisions of the court on this point see 9 Leigh 478; 10 Gratt. 506; 22 Gratt. 136; and Wallace v. Rich- mond, assignee to be reported in 25 Gratt. It is also to be gathered from these cases that the proceeding proper to be employed in applications for opening judgments or decrees taken on default through negligence of counsel is not that by a motion for rehearing, but by bill in chan- cery. Under the Virginia law, this application by motion cannot be sustained at all ; and the decisions are against it though made by bill. 271 272 SCOTT V. HOEB If this motion depended alone upon the law as settled in Virginia for the courts of the state, I should feel bound to deny it on the ground : 1st. That negligence of coun- sel is in Virginia no ground for opening a judgment or decree ; and, 2nd, that even though in extreme cases it be so, yet the proper mode of proceeding for defendant is by bill of injunction, and not by motion. But behind these reasons, which forbid a rehearing of this case on motion, there is another objection more in- surmountable than the rest. The eighty-eighth rule of the supreme court of the United States, prescribed for proceedings in chancery in the inferior courts, forbids the rehearing of a cause after the term at which the final de- cree of the court shall have been entered and rendered, if an appeal lies to the supreme court. The spring term and the fall term for 1874 of this court had both passed before this motion was entered. The general decisions of the court of England and the states of America, many of which have been cited in argument, can have no force in this court in opposition to such rule. We are bound here by the rule 88. The very fact of there having been a diversity of rulings on this subject by other courts was probably the inducement which led the supreme court to lay down its rule 88. That rule is the law here, what- ever may be the rulings of the other courts of the highest authority on this subject. The supreme court has not only laid down its rule 88, but in the cases of Cameron V. Mc^^oberts, 3 Wheat. 591, and McMicken v. Perin, 18 How. 507, has construed that rule and decided that cir- cuit courts have no power to set aside their decrees in equity, on motion, after the term at which they are ren- dered. If the decree of the 9th of April, 1874, was a final de- cree, and an appeal lies from it to the supreme court, then I am not at liberty to grant a rehearing. If it is a final decree, then an appeal does lie to the supreme court, because the. amount involved exceeds $2,000, the sun^ PETITION FOE REHEARING 273 then requisite to give jurisdiction of an appeal to that court. The only inquiry, therefore, is whether the de- cree in question was a final decree. It has been truly said in argument that there are two classes of decisions by appellate courts with reference to this character of finahty in decrees: 1st, those in which it is necessary to determine whether an appeal lies ; and, 2nd, those in which a limitation of time for an ap- peal cuts off the right. In the first class of cases the courts go farther to construe a decree as final than they do in the last class of cases ; in each class aiming to pre- serve to the suitor this valuable right. A court will when no limitation of time occurs, strain a point to treat a decree as final from which an appeal has been taken; and in the other case it will strain a point to treat a decree as not final where an appeal would be cut off by limitation. Hence has arisen a diversity of decisions on this question, all made in the interest of the suitor's right of appeal. I admit the difficulty of defining a final decree in such precise terms as will hold good in all cases. I have been in the habit of thinking those decrees to be final which determine all the principles of law and equity arising in a case, and which give direction for carrying the principles so decided into execution. If decrees which are made after all evidence is taken, and full and final argument heard, and which determine all questions raised, do not go on to provide for carrjdng into complete execution the principles decided, they are in that respect defective. They are final decrees, though as such they may be defective in their ministerial parts. The supreme court of the United States has not infre- quently complained of district and circuit courts for not entering complete final decrees, and of their carrying into execution by piecemeal decisions which finally set- tle all questions arising in causes. The difficulty of defin- ing what are final decrees has arisen chiefly from the fact that decrees really final in character have been de- E. p. C— 18 274 scolTT V. koBK fective in providing fully for the ministerial measures to be taken by officers of the court in carrying them into execution. Of course it would be exceedingly empirical to hold that a final decree is the order entered last in point of time in a cause. A final decree is one which fin- ally adjudicates the questions of right and of law in- volved in a cause, and proceeds to provide with reason- able completeness for the execution of such measures as may be necessary and proper for placing successful suit- ors in possession of the rights decreed to them. The decree now under consideration is final, and in my judgment, not only in its express terms, but in its sub- ject-matter. Being a final decree, and one from which an appeal may be taken to the supreme court, it cannot be opened now on a motion for rehearing. The only possi- ble method by which it can be re-examined in this court is upon bill of review. If such a bill is not brought, there is no way of staying the execution of it other than by ap- peal. The motion of the defendant is denied. XX BILL OF REVIEW 81. DEXTER V. AENOLD 5 Mason 303 Statement of Facts: Hearing of a petition to file a bill for the purpose of having a review of a decree ren- dered at a former term of the court. The petitioner, in whose favor the previous decree had been rendered against Thomas Arnold, the husband of the present de- fendant, for an accounting, and under which he had been paid $500.66, claimed that since that time new facts had been discovered, showing that several sums of money had come into the hands of Thomas Arnold, not accounted for by the master, and that several claims had been al- lowed in favor of said Arnold by the master, which, in the light of this subsequent evidence, should not have been allowed. Stoey, J. : The present is a somewhat novel proceed- ing in this circuit ; and I am not aware that, in any other circuit of the United States, any general course of prac- tice has prevailed which would supersede the necessity of acting upon this, as a case of first impression, to be decided upon the general principles of courts of equity. It comes before the court upon a petition for leave to file a bill of review of a decree rendered in this court at November term, 1823, principally upon the ground of a discovery of new matters of fact. The petition was filed at November term, 1827, and affidavits have been read in support of it. Counter-affidavits have also been admitted on the other side, not for the purpose of investigating or absolutely deciding upon the truth of the statements ?75 276 DEXTEE V. AENOIiD in the petition, but to present, in a more exact shape, some of the circumstances growing oul of the original proceedings, which may assist the court in the prelimi- nary discussion, whether leave ought to be gianted to file the bill of review. This course, though not very common, is, as I con- ceive, perfectly within the range of the authority of the court (see Livingston v. Hubbs, 3 Johns. Ch. 124; Norris V. Le Neve, 3 Atk. 25) ; and may be indispensable for a just exercise of its functions in granting or withholding the review. If, indeed, it were doubtful, in case the bill of review should be allowed, whether the defendants could by plea or answer traverse the allegation in such bill that the matter of fact is new, I should not hesitate to inquire, in the most ample manner, into the truth of such allegation, before the bill was granted, in order to prevent gross injustice. But as every such bill of review must contain an allegation that the matter of fact is new, it seems to me clear upon principle, that, as it is vital to the relief, it is traversable by plea or answer, and must be proved if not admitted at the hearing. In Han- bury V. Stevens (1784), cited by Lord Redesdale (Redesd. PI. Eq» 80), (3d ed. 70), the court is reported to have held that dpctrine. The case of Lewellen v. Mackworth, 2 Atk. 40; Barnard's Ch. 445, though very imperfectly, and, as I should think, inaccurately, reported, seems to me to support the same conclusion. It has been relied upon by the best text-writers for that purpose. Redesd. PI. Eq. 231 (3d ed.) ; Coop. Eq. PI. 305; Montague's Eq. PI. 335, note; id. 336; 2 Montague's Eq. PI. 227, note 100. Lord Redesdale, in his original work on Equity Plead- ings (Redesd. Eq. PI. 80, 2d ed.), stated the point as one which may be doubted; but upon principle I cannot see how that can well be. And in the last edition (the third), revised by his lordship, I find that he has ques- tioned the propriety of such a doubt. Redesd. PI. Eq. 70 (3d ed.). BILL OP REVIEW 277 Before I proceed to consider the particular grounds of the present petition, it may be well to glance at some of the regulations which govern courts of equity in rela- tion to bills of review, that we may be better en- abled to judge of their application to the courts of the United States. The ordinance of Lord Bacon constitutes the foundation of the system and has never been de- parted from. It is as follows : "No decree shall be reversed, altered or explained, being once under the great seal, but upon a bill of review. And no bill of re- view shall be admitted except it contain either error in law, appearing in the body of the decree, without far- ther examination of matters of fact or some new matter which hath arisen after the decree, and not any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court and not otherwise." Beame's Orders in Chancery 1. A bill of review, therefore, lies only when the decree has been enrolled under the great seal in chancery. If it has not been so enrolled, then for error of law ap- parent upon the decree the remedy is by a petition for a rehearing. Perry v. Phelips, 17 Ves. 173, 178. But if the ground of the bill is new matter, discovered since the decree, then the remedy is by a supplemental bill in the nature of a bill of review, and a petition for a rehearing, which are allowed by special license of the court. Eedesd. Eq. PI. 65 (78), 81; Coop. Eq. PI. 88, 89, 90, 91; Beame's Orders in Chan. 2 and 3, notes; Sheffield v. Duchess of Buckingham, 1 West. 682; Montag. Eq. PL, ch. 12, p. 330; Norris v. Le Neve, 3 Atk. 26 ; Perry v. Phelips, 17 Ves. 173 ; Blake v. Foster, 2 B. & Beatty 457, 460. This dis- tinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the practice of the courts of the United States, and 278 DEXTER V. ARNOLD perhaps rarely in any of the state courts of equity in the Union. I take it to be clear that in the courts of the United States all decrees as well as judgments are mat- ters of record, and are deemed to be enrolled as of the term in which they are passed. So that the appropriate remedy is by a bill of review. In regard to errors of law, apparent upon the face of the decree, the established doctrine is that you cannot look into the evidence in the case in order to show the de- cree to be erroneous in its statement of the facts. That is the proper office of the court upon an appeal. But tak- ing the facts to be as they are stated to be on the face of the decree, you must show that the court have erred in point of law. Mellish v. Williams, 1 Vem. 166; Cran- borne v. Delahay, 2 Freem. 169; Combs v. Prowd, 1 Ch. Cas. 54; S. C, 2 Freem. 181; 3 Eep. Ch. 18; Hard. 174; Perry v. Phelips, 17 Ves. 173; O'Brien v. Conner, 2 B. & Beatt. 146, 154. If, therefore, the decree does not con- tain a statement of the material facts on which the de- cree proceeds, it is plain that there can be no relief by a bill of review, but only by an appeal to some superior tribunal. It is on this account that in England decrees are usually drawn up with a special statement of, or ref- erence to, the material grounds of fact for the decice. Combs V. Prowd, 1 Ch. Cas. 54; Brand v. Brend, Vem. 214; S. C, 2 Ch. Cas. 161; Bonham v. Newcorab, 1 Vern. 216; O'Brien v. Conner, 2 B. & Beatt. 146, 154. In the courts of the United States the decrees are usually gen- eral. In England the decree embodies the substance of the bill, pleadings and answers; in the courts of the United States the decree usually contains a mere refer- ence to the antecedent proceedings without embodying them. But for the purpose of examining all errors of law, the bill, answers and other proceedings are, in our practice, as much a part of the record ^efore the court as the decree itself; for it is only by a comparison with isiLL OF REvniw 279 the former that the correctness of the latter can be as- certained. In regard to new matter there are several considera- tions deserving attention. In the first place the new mat- ter must be relevant and material, and such as, if known, might probably have produced a different determination. Bennett v. Lee, 2 Atk. 529; O'Brien v. Conner, 2 B. & Beatt. 155; Portsmouth v. Effingham, 1 Ves. 429. In other words, it must be new matter to prove what was before in issue, and not to prove a title not before in is- sue (Coop. Eq. PI. 91; Patterson v. Slaughter, Amb. 292 ; Young v. Keighley, 16 Ves. 348 ; Blake v. Foster, 2 B. & Beatt. 457, 462) ; not to make a new case, but to estabhsh the old one. In the next place the new matter must have come to the knowledge of the party since the period in which it could have been used in the cause at the original hearing. Lord Bacon's ordinance says in one part it must be "after the decree;" but that seems corrected by the subsequent words, "and could not pos- sibly have been used at the time when the decree passed," which point to the period of publication. Lord Hart- wicke is reported to have said that the words of Lord Bacon are dark; but that the construction has been that the new matter must have come to the knowledge of the party after publication passed. Patterson v. Slaughter, Amb. 293. The same doctrine was held in Norris v. Le Neve, 3 Atk. 25, 34, and has been constantly adhered to since. A qualification of the rule quite as important and instructive is that the matter must not only be new, but that it must be such as that the party, by the use of reasonable diligence, could not have known; for if there be any laches or negligence in this respect that destroys the title to the relief. That doctrine was expounded and adhered to by Lord Eldon in Young v. Keighley, 16 Ves. 348, and was acted upon by Lord Manners in Barrington V. O'Brien, 2 B. & Beatt. 140, and Blake v. Foster, 2 B. & Beatt, 457, 461. It was fully recognized by Mr. Chan- 280 DEXTER V. ARNOLD cellor Kent, and received the sanction of Ms high au- thority in Wiser v. Blachly, 2 Johns. Ch. 488, and Barrow V. Rhinelander, 3 Johns. Ch. 120. And in the very recent case of Bingham v. Dawson, 3 Jac. & Walk. 243, Lord Eldon infused into it additional vigor. Upon another point, perhaps there is not a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous case in 2 Freeman 81, where the chancellor said that "where a matter of fact was par- ticularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review. But where a new fact is alleged that was not at a former hearing, there may be a ground for a bill of review. ' ' Now, assuming that under certain circumstances new matter not evidence, that is, not in issue, in the original cause, but clearly demonstrating error in the decree, may support a bill of review, if it is the only mode of obtaining relief (see Norris v. Le Neve, 3 Atk. 33, 35; Roberts v, Kingsley, 1 Ves. 238; Earl of Portsmouth v. Lord Effingham, 1 Ves. 429; Redesdale Eq. PI. 67, etc. [last edition] ; 1 Montag. PI. Eq. 332, 333; Wilson V. Webb, 2 Cox 3 ; Standish v. Radley, 2 Atk. X77 ; see also. Lord Redesdale 's Observations in his third edi- tion of his Equity Pleadings, p. 67), still it must be ad- mitted that the general rule is that the new matter must be such as is relevant to the original case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, is reported to have admitted that a bill of review might be founded upon new matter not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Amb. 293 (see also. Young v. Keighley, 16 Ves. 348, 354; Blake v. Foster, 2 B. & Beatt. 457, 462), or upon matter which was in issue, but discovered since the hearing. But the very point in 2 Freeman 31, if I rightly understand it, is that a newly-discovered fact is ground for a bill; but not newly -discovered evidence in proof of any fact already in issue. This seems to me at variance BILL OF REVIEW 281 with Lord Bacon's ordinance, for it is said that there may be a review upon "new matter, which hath arisen in time after the decree," and, also, "upon new proof that has come to light after the decree made, and could not possibly have been used at the time when the decree passed." It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, and Amb. 293. Lord Eldon, in Young v. Keighley, 16 Ves. 348, 350, said: "The ground (of a bill of review) is error apparent on the face of the decree, or new evidence of a fact ma- terially pressing upon the decree, and discovered at least after publication in the cause. If the fact had been known before publication, though some contradiction ap- pears in the cases, there is no authority that new evidence would not be sufficient ground." That was also the opinion of Lord Manners in Blake v. Foster, 2 B. & Beatt. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. 124, adopted the like conclusion; and he seemed to think that siich new evidence must not be a mere accumulation of witnesses to the same fact, but some stringent written evidence or newly-discovered papers. Gilbert, in his Forum Romanum, chapter 10, page 186, leans to the same limitation, for he says that in bills of review "they can examine to nothing that was in the original cause, unless it be matter happening subsequent which was not before in issue, or upon matter of record or writing not known before, for if the court should give them leave to enter into proofs upon the same points that were in issue, that would be under the same mischief as the examination of witnesses after publication, and an inlet into manifest perjury." See, also, Barton's Eq. 216; Tovers v. Young, Prec. Ch. 193; Taylor v. Sharp, 3 P. Will. 371; Standish v. Radley, 2 Atk. 177; Chambers v. Greenhill, 2 Chan. 66; Thomas v. Harvie's Heirs, 10 Wheat. 146. There is much good sense in such a distinc- tion operating upon the discretion of the court in refus- ing a bni of review, and I should be glad to know that it 282 DEXTER V. ABNOU) has always been adhered to. It is certain that cmmilative evidence has been admitted, and even written evidence, to contradict the testimony of a witness. That was the case of Attorney-Greneral v. Turner, Amb. 587. Willan v. Willan, 16 Ves. 72, 88, supposes that new testimony of witnesses may be admissible. If it be admissible (upon which I am not called to decide), it ought to be received with extreme caution, and only when it is of such nature as ought to be decisive proof. There is so much of just reasoning in the opinion of the court of appeals of Kentucky on this subject that I should hesitate long before I should act against it. See Respass v. McClana- han, Hardin (Ky.) 342; Head v. Head, 3 Marsh. (Ky.) 121 ; Randolph v. Randolph, 1 H. & M. 180. In the next place it is most material to state that the granting of such a bill of review is not a matter of right, but of sound discretion in the court. Sheffield v. Duchess of Buckingham, 1 West. 682 ; Norris v. Le Neve, 3 Atk. 33; Gould v. Tancred, 2 Atk. 533. It may be refused, therefore, although the facts, if admitted, would change the decree where the court, looking to all the circum- stances, deems it productive of mischief to innocent par- ties, or for any other cause unadvisable. Bennet v. Lee, 2 Atk, 528 ; Wilson v. Webb, 2 Cox 3 ; and Young v. Keigh- ley, 16 Ves. 348, are strong exemplifications of the prin- ciple. These are the principal considerations which appear to me useful to be brought into view upon the present occa- sion. Let "us now advert to the grounds upon which the petition is fraitied and see how far any are applicable to them. The original bill was brought against Thomas Arnold (whose administrator is now before the court), for an account and settlement of his brother Jonathan Arnold's estate, upon which he had administered. The case is reported in the third volume of Mr. Mason's Reports, BttiL OF REVIfiW 283 page 284, and I refer to that for a summary of the pro- ceedings and final decree. In preferring the present petition the proper course of proceeding has been entirely mistaken. The present counsel for the petitioner is not responsible for those proceedings, they having taken place before he came into the cause. A petition for leave to file a bill of review for newly-discovered matters should contain in itself an ab- stract of the former proceedings, the bill, answers, de- cree, etc., and should then specifically state what the newly-discovered matter is and when it first came to the party's knowledge, and how it bears on the decree, that the court may see its relevancy and the propriety of al- lowing it. Coop. Eq. PI. 92. The present petition, in its original form, contained nothing of this sort, but re- ferred to an accompanying bill of review as the one which it asked leave to file, and then simply affirmed the facts stated in it to be true. This was sufficiently irregular. But upon looking into this bill of review the grounds of error are stated in a very loose manner, and in so general a form as to be quite inadmissible. The first error assigned is in matter of law, and it is that Thomas Arnold, the administrator, ought to have been charged with interest upon all sums of money which he had received as administrator, because the said sums were used by him. The master, in his report, had be- clined to allow interest ; and, upon an exception taken, the court confirmed his report on this point. I see no reason for changing the decree on this point, for the reasons stated in the cause in 3 Mason 288, 290 ; and there is no pretense to say that there is any such proof of the use of the money in the report of the master as justifies a differ- ent conclusion. There is no error in this respect apparent on the face of the master's report or the decree. The al- lowance or disallowance of interest rests very much upon circumstances, and shght errors in this respect are not always held fatal. See Gould v. Tancred, 2 Atk. 533. 284 DEXTEE V. ARNOLD There is no error apparent, therefore, on which a review ought to be granted. The next ground assigned is that Thomas Arnold did receive large sums of money and other property, which he has not accounted for before the master, and for which he ought to account; and that since the decree the petitioner hath discovered new and further evidence in relation thereto, which would have materially cTianged the report of the master and the de- cree. The petition does not state what the new evidence is, nor when discovered, and it is quite too vague for any order of the court. The bill then proceeds, very irregu- larly, to require, that the administrator of Thomas Ar- nold should answer certain interrogatories as to the car- goes of the ship Friendship. It then states that Thomas Arnold received six shares in the Tennessee Land Com- pany, and that he received $8,000 on a policy of insurance on the brig Friendship, and that he received large con- signments of property from Vincent Gray in Cuba in bills of exchange, etc., belonging to Jonathan's estate; and finally, that he received divers other large sums of money as agent of Jonathan. Now it must be manifest that upon allegations so general and distinct no bill of review would lie. Here is no assertion of newly-discov- ered evidence to maintain one. Such a bill, so framed, ought never to be allowed by a court acting upon the correct principles of chancery jurisdiction. Afterwards an amendment of this bill to review was filed, containing more distinct specifications of new mat- ter, most of which, however, as I shall have occasion to notice hereafter, are open to the same objections as those already stated. But the radical objection to both bills is that they are improperly introduced into the cause at all. A bill of re- view can only be filed after it is allowed by the court, and upon the very grounds allowed by the court. The preliminary application by petition to file it should state the new matter shortly, distinctly and exactly, so that BILL OP REVIEW 285 the court may see how it presses on the original cause ; and it is not permissible to load it with charges and alle- gations as in an original seeking bill in equity. In the sense of a court of chancery there is not before this court any sufficient petition upon which it can act. But as the proceeding is a novelty in this circuit, much indulgence ought to be allowed to the original counsel in the cause (for the present counsel is not at all charge- able) for irregularities of this nature upon the first pre- sentation of the practice. I advert to the posture of the cause, therefore, not so much with an intention to subject it to close criticism, as for the purpose of declaring that, even if I could gather from the papers that there is mat- ter upon which a bill of review would lie, it is not before the court in such a shape that the court could judicially pass an order of allowance. The case has, however, been argued, and with great ability, upon its merits ; and waiving for the present any further reference to the form of the proceedings, I will proceed to the consideration of the points made at the bar. The first point is one made by the defendant, and, be- ing preliminary in its nature, must be disposed of be- fore the plaintiff can be further heard. It is said to be a rule in equity, that, where a party has less decreed to him than he thinks himself entitled to, he cannot bring a bill of review; for that lies only in favor of a party against whom there is a decree. For this is the opinion of elementary writers (2 Madd. Pr. 412; 1 Harris. Pr. 86), and the case of Glover v. Partington, 2 Freem. 183; S. C, 2 Eq. Abrid. 174, is cited. The case, as here re- ported, certainly supports the doctrine. But it appears to me that, if the doctrine is correct, it is so only in cases where there is no error apparent on the face of the de- cree, and no newly-discovered matter to support a bill of review, for then the proper remedy is by appeal. If there is no such remedy by appeal, but only by bill of re- 286 DEXTER V. AENOLD view, it would be strange if a material error could not be redressed upon such a bill by a party to wbom it had been injurious ; that if a man had $10,000 due him, and had a decree for $100, he was conclusively bound by an error of the court. The decision, reported in 2 Freeman 182, was made by the master of the rolls, who allowed the demurrer ; but from the report of the same case in 1 Ch. Cas. 51, it appears that it was afterwards reheard be- fore the Lord Chancellor and Baron Rainsford, and the demurrer was overruled. See S. C, cited Com. Dig., Chancery, Gr, to the same effect. So that the final de- cision was against the doctrine for which it is now cited. A.nd Lord Nottingham, a few years afterwards, in Van- debende v. Levingston, 3 Swanst. 625, resolved that the plaintiff may have a bill of review to review a decree made for himself, if it be less beneficial to him than in truth it ought to have been. We may then dismiss this objection. We may now advance to the examination of the points made by the petitioner in support of his petition for a re- view, assuming that the amended bill of review is to be received, pro hac vice, as such a petition. I have already stated that it is utterly defective in the essential ingredi- ents of such a petition, in not stating with exactness the nature of the new evidence, and when it was first dis- covered. It is not sufficient to say that the petitioner ex- pects to prove error in this or that respect ; or that he has discovered evidence which he hopes wiU establish this or that fact. But he must state the exact nature and form of the evidence itself, and when discovered. K written evi- dence, it must be stated, and its direct bearing shown. If of witnesses, what facts the witnesses will prove, and when the party first knew the nature of their testimony. It is impossible otherwise for the court to judge whether evidence is decisive or is merely presumptive or cumula- tive ; whether it goes vitally to the case, and disproves it, or only lets in some new matter, confirmatory or explan- BIUJ OF REVIEW 28? atory of the transactions in the former decree. The party must go further and establish that he could not, by reasonable diligence before the decree, have procured the evidence. Now, in every one of these particulars, the amended bUl, quasi a petition, is extremely deficient. I have looked it over carefully, and cannot find that it points out a single written paper which disproves the original case, or names a single witness whose testimony, if admitted, would overturn it. It deals altogether in general allegations that certain things are expected to be proved; and, like an original bill, proceeds to ask a dis- covery from the defendant of letters and papers in her possession as administrator, relative thereto. There are indeed, in the accompanying affidavits, some papers pro- duced and relied on; but they cannot supply the defects of the original petition. The remainder of the case, being merely a discussion of facts, is omitted. Petition dismissed. TABLE OF CASES CITED [rEFBBBNCES ABE TO PAGES] Adams v. Valentine 194 Allison V. Drake 232, 251 Backus V. Brooks 99 Bailey v. Wright 149 Blease v. Garlington 213 Bolton V. Gardner 143 Brandon Mfg. Co. v. Prime 28 Brown v. City of Aurora 76 Chapman v. Barney 69 Cochrane v. Adams 122 Crockett v. Lee 217 Day V. Cole 119 Dexter v. Arnold 275 Dillon V. Barnard 114 Eslava v. Mazange 222 Ewing V. Blight 148 Farley v. Kitson 132 Fayerweather v, Ritch 217 Finley v. Bank of U. S 16 Forgay v. Conrad 255 Gaines v. New Orleans 242 Gilham v. Madison E. E. Co 1 Gray v. Larrimore 23, 61 289 290 table op cases cited [eefeeences aee to pages] Hartzeil v. Brash 121 Harvey v. Morgan 153 Haskett et al. v. Maxey et al 3 Hayes v. Dayton 32 Hicklen v. Marco 10 Holt V. Daniels 180 Hood V. Inman 92 Jackson v. Ashton 33 John V. Waterhouse 52 Johnson v. Roberts 66 Jones V. Andrews 44 Kimberly v. Arms 237 Koch V. Arnold 211 Langdon v. Goddard 184 Lathrop v. Bramhall 226 Law V. Ware 112 Leggett V. Bennett 110 Lester v. People 263 Lester v. Stevens 146 Lewisburg Bank v. Sheffey 248 Lon,gworth v. Taylor 21 Louisiana Bank v. Whitney 247 Lowenstein v. Glidewell 200 Maiden Gas Light Co. v. Chandler 79 McMicken v. Perin 241 Meagher v. Thresher Co 244 Moors V. Moors 169 Morgan v, Morgan 51 Moss V. McCall 220, 235 Murphy v. Murphy 87 Myers v. Dorr 38 Neal V. Foster 187 Newman v. Moody , , 163 TABLE OP CASES CITED 291 [bEFEEENCES are to PAGts] O 'Hara v. MacConnell 55 Parkhurst v. Kinsman 203 Payne v. Hook 18, 48 Peay v. Schenck •. 35 Penn. Steel Co. v. N. Y. City Ry. Co 206 Phoenix Mnt. Life Ins. Co. v. Wulf 58 Radford v. Folsom 126 Railroad Co. v. Swasey 261 Reeves v. Slater 82 Rittenhouse v. Newhard 74 Rnssell v. Stickney 158 Sandif er v. Sandif er 64 Scott V. Hore 271 Smith V. Potter 173 South Chicago Brew. Co. v. Taylor 208 Spangler v. Spangler 151 Sullivan v. Railroad Co 108 Travers v. Ross 165 Turner v. Bank 33 Vose v. Bronson 26 Westervelt v. Library Bureau 140 Woods V. Morrell 91 Wooster v. Gumbimer 237