CORNELL LAW LIBRARY dornpU HJam ^rl|ool ICibrarg Cornell University Library KF 8855.F61 A treatise on equity pieading and practi 3 1924 020 119 065 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020119065 A TREATISE ON EQUITY PLEADING AND PRACTICE WITH ILLUSTRATIVE FORMS AND'PRECEDENTS BY WILLIAM MEADE FLETCHER, B. L., OF THE CHICAGO BAR, Professor of the Law of Equity Pleading and Praaice in the Law School of Northwestern University. SAINT PAUL KEEFE DAVIDSON COMPANY 1903 COPYRIGHT, 190?, BY WILLIAM MEADE FLETCHEE. Webb Publishing Co. Press, St. Paul. PREFACE, In 1Y82, Sir John Mitford, afterwards Lord Kedesdale, brought forth hia treatise on Equity Pleading, which Lord Eldon termed, "The production of a very diligent and learned man; not at once given to the world, or hastily, but after search and research into every record, and again given to the world by him."^ This work was followed by those of Cooper, in Eng- land, and Story, in America, each of whom, together with other writers on this subject, resorted to the production of Lord Kedes- dale as the authoritative expression of the law of equity plead- ing. These writers left little to be desired in the domain of pleading in equity, but gave little consideration to that other important branch of procedure, — practice. The latter field was entered upon in New York by Messrs. Barbour and Hoffman, who subordinated to the discussion of practice the consideration of pleading. The latter ^vorks, in addition to being, to some extent, of a local character, have long since been out of print, and inaccessible to the greater portion of the bar. It has seemed to the axithor that the subjects of pleading and practice in equity are so closely interdependent that an adequate understanding of the procedure in chancery renders essential a consideration of both subjects. With this in view, he has endeavored to present a modern treatise on these subjects, embracing the entire course of proceedings in chancery, from their inception to their termination, according to the principles and procedure of the high court of chancery in England, as administered in the courts of this country, uninfluenced by local legislation or modifications. The subject of appeals, for 1 Bayley v. Adams, 6 Ves. 595. i VI PREFACE. this reason, has been adverted to rather from a historical stand- point, and in order to render complete the course of proceedings, than from any thought of the practical utility of the discussion thereof herein contained. The appellate practice in the various jurisdictions is of such peculiar and local character in each as to render impossible any adequate discussion of the same in a volume of this size and nature. For a like reason, no attempt has been made to invade the province of the able and ex- haustive w^orks of Messrs. Foster and Beach, which refer more particularly to procedure in the federal courts. As Mr. Jus- tice Story gratefully acknowledged his indebtedness to Lord Eedesdale in the production of his treatise on Equity Pleading, 80 does the author acknowledge obligation to his predecessors in the branch of the law to which this volume is devoted. It has been thought expedient to add, in an appendix, the equity rules of the United States supreme court, and the ordi- nances of Lord Chancellor Bacon. The manifest practical utility of the former requires no statement of the reasons for adding the same. Of the ordinances of Lord Bacon, which were enacted in the year 1G18, it will bo sufScient to quote the opinion of Mr. HofPman, who says that they "remain to this day the foundation of much of the existing practice, and * * * are as remarkable for the precision of their language as the utility of their provisions."^ WILLIAM MEADE FLETCHER. Chicago, November, 1902, 2 Hoffman, Master In Chancery, xxii. TABLE OF CONTENTS. CHAPTER I. GENERAL NATURE OF EQUITABLE JURISDICTION. 1. Nature of Equity. 2. Equity Is a Uniform System of Law. 3. Distinction Between Courts of Law and Courts of Equity. 4. The Bnglish Court of Chancery. 5. Courts of Equity in the United States. 6. Equitable Jurisdiction of Federal Courts. 7. Importance of a Knowledge of Equity Pleading and Practice. CHAPTER II. PERSONS CAPABLE OF SUING AND BEING SUED IN EQUITY, § 8. In General. 9. Alienage. 10. Suits hy and against Sovereigns. 11. Infants. 12. Suits by and against Married Women. 13. Idiots, Lunatics, and Persons of Weak Mind. 14. Receivers. 15. Foreign Corporations. 16. Foreign Guardians, Conservators, Committees, etc. 17. Foreign Executors and Administrators. CHAPTER III. PARTIES TO SUITS IN EQUITY. 18. Distinction Between Parties at Law and in Equity. 19. General Rule on the Subject of Parties. 20. Converse of General Rule True. 21. Exceptions to the General Rule in Regard to Parties. 22. (la) Parties Without the Jurisdiction. viii TABLE OP CONTENTS. 23. (lb) Omission of Personal Representative. 24. (Ic) Where Persons are Unknown. 25. (2) Persons Exceedingly Numerous — In General. 26. (2a) One Suing for All, Where Question Is One of Common or General Interest. 27. (2b) Parties Forming a Voluntary Association. 28. (2c) Numerous Parties Having Separate and Distinct Interests. 29. Decree Furnishing a Ground to Dispense With Numerous Parties. 30. (3) Persons Whose Interests are Very Small. 31. (4) Persons With Interests Created to Oust Jurisdiction. 32. (5) Parties Disclaiming All Interest in the Controversy, or against Whom Rights are Waived, or Who Consent to the Decree. 33. Doctrine of Representation. 34. Representation by Trustees. 35. Executors and Administrators. 36. Life Tenants and Remaindermen. 37. Trustees in Insolvency. 38. Corporations. 39. Suit by Stockholder on Behalf of Corporation. 40. Classification of Parties. 41. Illustrations of Necessary or Indispensable Parties. 42. Illustrations of Proper, but Not Indispensable, Parties. 43. Suits Must be Brought in the Name of Real Party in Interest. 44. Parties in Cases of Assignments. 45. Agents and Other Persons in Similar Relations. 46. Bankrupts and Assignees. 47. Making Witnesses Parties Defendant. 48. Joinder of Complainants. 49. Complainants Having Community of Interest. 50. Community of Title. 51. Defendants to Bills. 52. Joinder of Defendants. 53. Bringing in New Parties. 54. Substitution of Parties. 55. Intervention. 56. Objection for Want of Necessary Parties. 57. Objection Should Point Out Proper Parties. 58. Correction on Court's Own Motion. 59. Effect of Misjoinder. 60. Position of Parties on Record. CHAPTER IV. PLEADING AND PRACTICE IN EQUITY. § 61. In General. TABLE OP CONTENTS. ix 62. Construction of Equity Pleadings. 63. Name and Nature of Pleading. CHAPTER V. BILLS AND INFORMATIONS IN EQUITY. 64. In General. 65. Division of Bills in Equity. 66. Divisions of Original Bills. 67. Division of Bills not Original. 67a. Table Illustrating Classification of Bills. 68. The Several Parts of a Bill— In General. 69. Form and Illustration of the Several Parts of an Original Bill. 70. The Address of the Bill. 71. The Introduction. 72. The Stating Part. 73. Thp Confederating Part of the Bill. 74. The Charging Part of the Bill. 75. The Jurisdiction Clause. 76. The Interrogating Part. 77. The Prayer for Relief. 78. Prayer for Process. 79. Form of Prayer for Subpoena. .., 80. Form of Prayer for Writ of Ne Exeat. 81. Forms of Prayer for Injunction. 82. Signing the Bill. 83. Swearing to the Bill. 84. Form of Jurat. 85. General Rules Concerning Bills — Certainty. 86. Allegations Within and Without Complainant's Knowledge. 87. Bill Must State Sufficient Facts. 88. Amount Involved Must not be Beneath the Dignity of the Court 89. How Parties Described. 90. Interest of Parties, and Injury to Complainant. 91. Offer to Do Equity. 92. Excusing Laches. 93. Charging Notice. 94. Excusing Failure to Join Proper Party. 95. Allegations Relative to Mistake or Accident. 96. Bill to Open Settled Account. 97. Relief against Usury. 98. Allegations of Fraud. 99. Pleading Documents. 100. Allegations on Information and Belief. 101. Matters of Argument and JSvidence. TABLE OP CONTENTS. 102. Legal Conclusions Not to be Stated, 103. Matters Judicially Noticed. 104. Admissions of Defendant. 105. Inconsistent Allegations. 106. Bills With a Double Aspect. 107. Bills should Not be Multifarious. 108. Misjoinder of Causes. 109. Avoidance of Multiplicity as an Excuse for Multifariousness. 110. Prayer for Relief Making Bill Multifarious. 111. Multifariousness Resulting from Misjoinder of Complainants. 112. Suits in Personal and Representative Capacities. 113. Multifariousness Resulting from Misjoinder of Defendants. 114. Bills against Defendant in Different Capacities. 115. Mode of Objecting to Multifariousness. 116. Splitting up Causes. 117. Bills must Not be Scandalous or Impertinent. 118. General Form of Bill. 119. Authority to Pile Bill. 120. Piling the Bill. CHAPTER VT. PROCESS FOR APPEARANCE. 121. Subpoena to Appear. 122. Frame of Subpoena. 123. Form of Subpoena. 124. Service of Process. 125. Service on Persons Under Disability. 126. Service on Corporations. 127. Service on Prisoner. 128. Mode of Service. 129. Extraordinary or Substituted Service. 130. Constructive Service, 131. Effect of Substituted or Constructive Service. 132. Return of Service. 132a. Illustration of Form of Return. 133. Acceptance of Service. 134. Amendment of Return. 135. Effect of Return. 136. Defective Service. 137. Persons Privileged from Service of Process. 138. Processes to Compel Appearance. 139. Process against Corporations. TABLE OF CONTENTS. Xi CHAPTER VII. TAKING BILLS AS CONFESSED. 140. In General. 141. When a Bill may be Taken for Confessed. 142. Necessity for Service of Process. 143. Necessity of Entry of Rule to Answer. 144. Proof of Regularity of Proceedings. 145. Pleadings to Sustain Decree Pro Confesso. 146. Proof of Bill. 147. Reference to Determine Complainant's Claims. 148. Notice to Defendant. 149. Effect of Defense by One of Several Defendants. 150. Nature and Effect of Orders Pro Confesso. 151. Decrees Pro Confesso. 152. Forms of Orders Pro Confesso (as Used in Cook County, Illinois). 153. Effect of Taking a Decree Pro Confesso. 154. Effect of Decree Pro Confesso Where There Is No Personal Service. 155. Decrees by Confession against Infants and Other Persons Un- der Disability. 156. Opening Orders and Decrees Pro Confesso. 157. Imposing Conditions. 158. Proceedings to Set Aside Order or Decree Pro Confesso. 159. Filing Counter Affidavits. 160. Setting Aside Orders and Decrees Pro Confesso Discretionary. 161. Effect of Vacating Decree Pro Confesso. 162. Effect of Amendment of Bill. 163. Statutory Provisions for Vacating Decrees Pro Confesso. 164. Form of Affidavit in Support of Motion to Set Aside Order Pro Confesso. 165. Form of Order Vacating Default and Order Pro Confesso. CHAPTEE VIII. APPEARANCE. 166. Definition and Nature. 167. What Constitutes an Appearance. 168. General or Special Appearance. 169. Time for Appearance. 170. Effect of an Appearance. 171. Who may Appear. 172. Authority to Enter an Appearance. xii TABLE OF CONTENTS. 173. Withdrawal of Appearance. 174. Forms of Appearance — General (in Illinois).' 175. Appearance by Corporations. 176. Appearance by Married Women. 177. Appearance by Infants. 178. Consent of Guardian Ad Litem to Act. 179. Order of Appointment. 180. Form of Petition for Appointment of Guardian Ad Litem. 181. Form of Order Appointing Guardian Ad Litem. 182. Appearance by Persons Non Compos Mentis. CHAPTEE IX. PROCEEDINGS BY DEFENDANT PREVIOUS TO PUTTING IN HIS DEFENSE. § 183. Employing Solicitor. 184. Motion to Take Bill From Files. 185. Excepting to a Bill for Scandal and Impertinence. 186. Form of Exceptions to a Bill for Scandal or Impertinence. 187. Motion to Produce Papers. 188. Security for Costs. 189. Application to Defend as Pauper. CHAPTER X. THE DIFFERENT SORTS OF DEFENSE. § 190. In General. 191. Defenses to Different Kinds of Bills. 192. Joinder of Several Defenses. 193. Incorporating Demurrer or Plea in Answer, CHAPTER XI. DEMURRER S- 194. In General. 195. Dismissal of Bill on Motion. 196. Who May Demur. 197. Demurrer Coupled with Plea or Answer. 198. Abandonment or Waiver of Demurrer. 199. Admissions by Demurrer. 200. Speaking Demurrer. TABLE OF CONTENTS. xiii 201. Separate Demurrers. 202. Demurrer Ore Tenus. 203. Demurrer to Bill Good in Part. 204. Demurrer Cannot be Good in Part and Bad in Part. 205. Demurrers are Either General or Special. 206. Several Causes of Demurrer. 207. Classification of Demurrers in General. 208. Demurrers to Jurisdiction. 209. Demurrers to the Person. 210. Triviality of Subject-Matter of Suit. 211. Want of Interest or Title in Complainant. 212. No Right to Call Upon Defendant to Answer Complainant's Demand. 213. Demurrer for Want of Interest of the Defendant. 214. Demurrer to Bill to Enforce Penalty or Forfeiture. 215. Demurrer for Defects of Form. 216. Multifariousness. 217. Demurrer for Want of Parties. 218. Misjoinder of Parties. 219. Frame of Demurrer. 220. Forms of Demurrers — For Want of Equity. 221. Filing Demurrer. 222. Admitting Demurrer. 223. Withdrawing Demurrer. 224. Form of Order on Withdrawal of Demurrer. 225. Demurrer to Amended Bill. 226. Setting Down Demurrer for Argument. 227. Form of Notice of Argument of Demurrer. 228. Hearing on Demurrer. 229. Sustaining the Demurrer. 230. Form of Order Sustaining Demurrer. 231. Form of Order Sustaining Demurrer and Dismissing Bill (in Illinois). 232. Overruling Demurrer. 233. Form of Order Overruling Demurrer. 234. Taking Demurrer Off the Files. CHAPTER XII. PLEAS. 235. General Nature of Pleas. 236. Different Kinds of Pleas. 237. Pure Pleas. 238. Negative Pleas. 239. Anomalous Pleas. 240. General Rules as to Requisites of Pleas. XIV TABLE OF CONTENTS. 241. Plea may be to Whole or Part of Bill. 242. Strictness in Pleas. 243. Pleas of Matter Subsequent to the Filing of the Bill. 244. Duplicity in Pleas. 245. Filing More Than One Plea. 246. Pleas Supported by Answer. 247. Plea Overruled or Waived by Answer. 248. Frame of Plea. 249. Signing and Swearing to a Plea. 250. Form of Plea. >251. Plea to Part, and Answer to Residue, of Bill. 251a. Form of Plea Supported by Answer. 252. Division of Pleas, 253. Division of Pleas to Bills for Relief. 254. Declinatory, Dilatory, and Peremptory Pleas. 255. Pleas to the Jurisdiction. 256. Pleas to the Person. 257. Pleas to the Bill or Frame Thereof. 258. Plea of Pendency of Another Suit. 259. Plea for Want of Proper Parties. 260. Plea of Multiplicity of Suits. 261. Plea of Multifariousness. 262. Pleas in Bar to a Bill. 263. Pleas Founded on Statutory Bar. 264. Plea of Statute of Limitations. 265. Statute of Frauds. 266. Plea of Other Statutes. 267. Pleas of Matter of Record. 268. Pleas of Matter as of Record. 269. Pleas of Matters Purely in Pais. 270. Plea of Release. 271. Pleas of Stated Account and Settled Account. 272. Plea of an Award. 273. Plea of Purchase for a Valuable Consideration. 274. A Plea of Title in the Defendant. 275. Plea of Laches. 276. Plea to Amended Bill. 277. Time for Filing Plea. 278. Withdrawing Plea. 279. Replication to the Plea. 280. Setting Down Plea for Argument. 281. Allowing the Plea. 282. Form of Order Allowing Plea. 283. Saving Benefit of Plea to the Hearing. 284. Ordering Plea to Stand for Answer. 285. Form of Order that Plea Stand for an Answer. 286. Overruling Plea. 287. Form of Order Overruling Plea. TABLE OF CONTENTS. xv 288. Reference to a Master. 289. Form of Order of Reference. 290. Hearing on Plea. CHAPTER XIII. ANSWERS. § 291. In General. 292. Twofold Nature of Answer. 293. Answering Complainant's Case. 294. What must be Answered. 295. Allegations of Fraud. 296. Answering Only Own Case. 297. Answer as. Defense. 298. Joinder of Defenses in Answer. 299. Defense of Bona Fide Purchase. 300. Laches and Statute of Limitations. 301. Statute of Frauds. 302. Pleading a Statute. 303. Usury. 304. Other Defenses Proper by Answer. 305. Matters Occurring Since the Piling of the Bill. 306. Frame of Answer. 307. Signing the Answer. 308. Swearing to Answer. 309. Forms of Orders Concerning Verification and of Jurats — Order to Take Answer without Oath or Signature. 310. General Form of Answer. 311. Forms of Averments — Where Defendant Is Entirely Ignorant with Regard to Statement in Bill. 312. Certainty and Positiveness in Answering. 313. Answering on Knowledge, Information, and Belief. 314. Denials and Admissions in Answer. 315. Responsiveness. 316. Impertinence and Scandal in an Answer. 317. Joint or Several Answers. 318. Answer by Infant. 319. Form of General Answer of Infant by Guardian Ad Litem. 320. Answer of Persons Non Compos Mentis, or Under Physical Dis- abilities. 321. Answer of an Illiterate Person, 322. Answer of a Foreigner. 323. Answer of a Corporation. 324. Answers by Married Women. 325. Answer by Defendant in Contempt, 326. Answering Amended Bill. xvi TABLE OF CONTENTS. 327. Time When Defendant must Answer. 328. Answering by Favor of Court. 329. Withdrawal of an Answer. 330. Taking Answer from the Files. CHAPTER XIV. EXCEPTING TO ANSWER. 331. Demurrer to Answer Improper. 332. Objections to Affirmative Defense. 333. Definition and Ofiice of Exceptions. 334. Exceptions for Insufficiency. 335. When Exceptions for Insufficiency will not Lie. 336. Exceptions to Answers to Amended Bills. 337. Exceptions for Impertinence and Scandal. 338. Frame of Exceptions. 339. Form of Exceptions for Insufficiency. 340. Form of Exceptions for Scandal and Impertinence. 341. When Exceptions should be Filed. 342. Waiver of Exceptions. 343. Effect of Exceptions. 344. Procedure upon Exceptions. 345. Form of Order of Reference on Exceptions. 346. Form of Report upon Exceptions. 347. Form of Exceptions to Master's Report, on Exceptions to An- swer. 348. Order for Further Answer, on Master's Report. 349. Form of Order for Answer on Submission to Exceptions. 350. Form of Order to Expunge Scandal and Impertinence from An- swer, on Report of Master. 351. Form of Order Expunging Scandal and Impertinence, on Sub- mission to Exceptions. 352. Order for Further Answer. CHAPTER XV. DISCLAIMERS. 353. Nature and Office of Disclaimer. 354. Form of General Disclaimer. 355. Form of Answer and Disclaimer. TABLE OF CONTENTS. xvii CHAPTER XVI. REPLICATION. § 356. Nature and Office of Replication. 357. Form of Replication. CHAPTER XVII. RULES OF COURT. § 358. In General. 359. Adoption of Rules. 360. Suspension of Rules. 361. Construction of Rules. 362. Rules Operate Prospectively. 363. Amending Rules. 364. Proof of Rules. CHAPTER XVIII. PUTTING COMPLAINANT TO HIS ELECTION. § 365. In General. 366. Form of Order that Complainant Elect. 367. Form of Election. CHAPTER XIX. PAYMENT OF MONEY INTO COURT. § 368. In General. 369. Form of Order to Pay Money into Court. CHAPTER XX. PRODUCTION AND INSPECTION OF DOCUMENTS. 370. In General. 371. Production by Defendant. 372. Form of Petition for Production and Inspection of Papers. fviii TABLE OF CONTENTS. 373. Form of Order for Production by Defendant. 374. Production of Documents by Complainant. 375. Form of Order for Production of Papers by Complainant. 376. Right of Defendant to Compel Production by Co-Defendant 377. Inspecting Documents. CHAPTER XXI. AMENDMENT OF PLEADINGS. 378. In General. 379. Right of Defendant to Require Amendment. 380. Court cannot, on its Own Motion, Amend Pleadings. 381. Discretion of Court as to Amendments. 382. Power to Impose Conditions. 383. Amendment of the Bill. 384. Amending Sworn Bills. 385. Matters Arising Since the Filing of the Bill. 386. Amending after Answer. 387. Conforming Allegations to Proof. 388. Amendment Making New Case. 389. Amendment as to Parties. 390. Amendment of Prayer. 391. Amendments Making Bills Multifarious not Allowable. 392. Effect of Amendments to Bill. 393. Amendment of Answer. 394. Matters Arising Subsequent to Filing the Answer. 395. Answer Making New Defense. 396. Effect of Amending Answer. 397. Amending Plea. 398. Amendment of Demurrers. 399. Amendment of Replication. 400. Amendment of Exceptions. 401. Amendment of Cross Bill. 402. When Application to Amend Bill should be Made. 403. Mode of Applying for Leave to Amend. 404. Form of Petition for Leave to Amend. 405. Form of Petition to Amend Bill by Adding a Defendant. 406. How Amendments are Made. 407. Verification of Amended Pleadings. 408. Form of Amendments to Bill. 409. Order to Amend. 410. Form of Order Granting Leave to File Amendment to Bill. 411. Form of Order for Leave to Amend Answer. 412. Proceedings upon Amended Bill. TABLE OF CONTENTS. „. xix CHAPTER XXII. INTERLOCUTORY APPLICATIONS, AND ORDERS THEREON. 413. In General. 414. Motions. 415. Motions of Course. 416. Special or Contested Motions. 417. Who may Make a Motion. 418. Notice of Motions. 419. Proof of Service of Notice. 420. Form of Notice of Motion, with Proof or Admission of Service 421. Hearing of Motions. 422. Renevyal of Motion. 423. Petitions. 424. Frame of Petition. 425. Notice of Petitions. 426. Objections to Petitions. 427. Answering the Petition 428. Hearing on Petition. 429. Definition and Nature of an Order. 430. Common Orders. 431. Special Orders. 432. Consent Orders. 433. Where Orders may be Made. 434. Frame of Orders. 435. Entry of Order Nunc Pro Tunc. > 436. Notice and Service of Orders. 437. Orders to Show Cause. 438. Enforcement of Orders. 439. Effect of Irregular or Void Orders. 440. Opening, Modifying, and Discharging Orders. CHAPTEE XXIII. AFFIDAVITS. 441. Definition and General Nature. 442. By Whom to be Made. 443. Who may Take an Affidavit. 444. Frame and Requisites of Affidavit. 445. Amendment of AflBdavit. 446. Form of Affidavit. XX TABLE OF CONTENTS. CHAPTER XXIV. STIPULATIONS AND ADMISSIONS. § 447. Stipulations. 448. Validity of Stipulations. 449. Construction of Stipulations. 450. Upon Whom Stipulations are Binding. 451. Stipulations Concerning ETidence. 452. Frame of Stipulation. 453. Form of Stipulation. 454. Admissions of Record. CHAPTER XXV. CONSOLIDATION OF CAUSES. § 455. In General. 456. Form of Order of Consolidation. CHAPTER XXVI. ONE CAUSE ABIDING THE EVENT OF ANOTHER. § 457. In General. 458. Form of Order to Abide Event of Another Suit. CHAPTER XXVII. RECEIVERS. 459. Definition of Receiver. 460. When a Receiver will he Appointed. 461. Who may he Receivers. 462. Requisites of Bill. 463. Form of Bill for Receiver. 464. At What Stage Receiver Appointed. 465. How to be Applied for. 466. Form of Motion. 467. Necessity of Notice. 468. Form of Notice of Motion for Appointment of a Receiver.- 469. By Whom Appointed. 470. Order of Appointment. TABLE OF CONTENTS. XXi 471. Form of Order Appointing Receiver. 472. Form of Order Appointing Receiver on Foreclosure of Mortgage. 473. Renewal of Application for Receiver. 474. Vacating Order Appointing Receiver. 475. Receiver's Bond. 476. Form of Bond of Receiver. 477. Receiver's Title and Possession. 478. Asserting Claims against Receiver. 479. Removal of Receivers. 480. Form of Order Changing Receiver. 481. Discharge of Receivers. i82. Form of Decree Discharging Receivers. CHAPTEE XXVIII. NE EXEAT. 483. In General. 484. When Writ of Ne Exeat Granted. 485. When the Writ may be Applied for. 486. How Applied for. 487. Form of Bill Praying Ne Exeat. 488. Form of Order for Writ of Ne Exeat. 489. Form of Writ of Ne Exeat. 490. Service of Writ. 491. Bond. 492. Discharging Ne Exeat. CHAPTER XXIX. INJUNCTIONS 493. In General. 494. Different Kinds of Injunctions. 495. Preliminary Injunctions. 496. Temporary Injunctions. 497. General Injunctions. 498. Perpetual Injunctions. 499. Injunctions not to Issue without Bill. 500. Staying Proceedings at Law. 501. Form of Bill. 502. How Obtained. 503. Form of Bill for Injunction to Restrain Waste. 504. Form of Bill for Injunction. 505. Form of Recommendation by the Master. xxii TABLE OF CONTENTS. 506. Necessity of Giving Notice. 507. Form of Motion for Injunction. 508. Against Wtiom Granted. 509. Order Granting Injunction. 510. Form of Order in Suit for Accounting and Injunction. ', 511. Form of Decree Denying Injunction and Dismissing J3ill. 512. Bond. 513. Writ of Injunction. 514. Form of Writ of Injunction. 515. Service of Injunction. 516. Effect of Injunction. 517. Breach of Injunction. 518. Parties Affected by Injunction. 519. Dissolution of Injunction. 520. Dissolution for Want of Equity. 521. Answer Denying Averments of Bill. 522. Where There are Several Defendants. 523. Motion to Dissolve by One in Contempt. 524. Necessity of Giving Notice of Motion to Dissolve. 525. Form of Notice of Motion to Dissolve. 526. Affidavits in Support of Motion to Dissolve. 527. Considerations Determining Question-of Dissolution. 528. Effect of Bad Faith in Obtaining Injunction. 529. Effect of Laches. 530. Order of Dissolution. 531. Form of Decree Dissolving Injunction and Dismissing Bill for Want of Equity. 532. Dismissal of Bill upon Motion to Dissolve. 533. Form of Decree for Perpetual Injunction. CHAPTER XXX. CONTEMPTS. § 534. Power to Punish for Contempt. 535. Different Kinds of Contempt. 536. What are Contempts. 537. Void Orders. 538. Preliminaries to Bringing Party into Contempt. 539. Practice upon Contempts. 540. Entitling Cause. 541. The Affidavit or Information. 542. Form of Information against Contemnors. 543. Form of Petition tor an Attachment for Disobeying an Iniunc- tion. 544. Notice and Initial Process. 545. Form of Order to Show Cause. TABLE OP CONTENTS. xxiii 546. The Writ of Attachment and Bail. 547. Form of Writ of Attachment. 548. Appearance. 549. Answer. 550. Purging Contempt. 551. Inability to Perform Order. 552. Form of Answer to Rule to Show Cause. 553. Interrogatories and Reference. 554. Trial of Contempts — Right to Trial by Jury. 555. Judgment. 556. Form of Order Adjudging Contemnor Guilty. 557. Another Form. 558. Mode of Punishment. 559. Effect of Being in Contempt. 560. Review of Contempt Proceedings. CHAPTER XXXI. DISMISSAL OF SUITS PRIOR TO HEARING. 561. Dismissal of Unauthorized Suits. 562. Dismissal on Motion of Complainant. 563. Effect of Agreements Concerning Dismissal. 564. Dismissal of Part of a Bill. 565. Dismissal by One of Several Complainants. 566. Dismissal of Bill by One in Contempt. 567. Dismissal of Bill as to Portion of Defendants. 568. Costs on Voluntary Dismissal. 569. Effect of Voluntary Dismissal. 570. Form of Order of Voluntary Dismissal. 571. Reinstatement after Voluntary Dismissal. 572. Involuntary Dismissal — In General. 573. Dismissal for Want of Prosecution; 574. Dismissal of Bill on Motion for Want of Equity. 575. Dismissal on Court's Own Motion. 576. Dismissal for Defect of Parties. 577. Involuntary Dismissal without Prejudice. 578. Reinstatement after Involuntary Dismissal. 579. Effect of Involuntary Dismissal before Hearing. 580. Effect of Involuntary Dismissal on Answer or Cross Bill. 581. Effect of Order of Dismissal. CHAPTER XXXII. REFERENCE TO A MASTER. § 582. Office and Duty of Master. Kxiv TABLE OF CONTENTS. 583. Power to Order Reference. 584. Order of Reference. 585. Forms of Order of Reference — Generally. 586. Another Form. 587. Form of Order of Reference as to Alimony. 588. Form of Order of Reference to State an Account. 589. Changing Master. 590. Objections to Reference. 591. Who may Attend before Master. 592. Notice and Time of Hearing. 593. Hearing Before Master. 594. Scope of Inquiry Before Master. 595. Evidence Before the Master. 596. Evidence and Examination of Witnesses Before the Master. 597. Draft of Report. 598. Form of Notice of Draft of Report. 599. Frame of Master's Report. 600. Form of Report of Testimony, and Conclusions Thereon. 601. Objections to the Report. 602. Frame of Objections. 603. Form of Objections to Master's Report. 604. Consideration by the Master of the Objections Filed. 605. Filing the Report. 606. Returning the Evidence. 607. Exceptions to the Master's Report. 608. Correcting Exceptions. 609. Extending Time to Except. 610. Form of Exceptions to Master's Report. 611. Conclusiveness of Master's Report. 612. Proceedings by the Court upon Master's Report. 613. Hearing upon Exceptions. 614. Form of Order Confirming Master's Report. CHAPTER XXXIII. FEIGNED ISSUES. 615. In General. 616. Distinction betv^een Directing Action at Law and Feigned Issue. 617. Granting an Issue Discretionary with the Court. 618. When an Issue should be Awarded. 619. When Issue should be Applied for. 620. Framing Issues. 621. Form of Order for a Feigned Issue. 622. Form of Order for Settling an issue. 623. Form of Feigned Issue. 624. Revoking Issue. TABLE OF CONTENTS. XXV 625. In what Court Issue Tried. 626. Proceedings upon Trial. 627. Instructions by the Trial Court. 628. Exceptions on Trial of Issue. 629. Form of Verdict. 630. Certifying the Verdict. 631. Power of Court over Verdict. 632. Recording Verdict. 633. Granting New Trial. 634. Effect of a Verdict on First Trial upon the Second Trial. 635. Procedure after Verdict. CHAPTER XXXIV EVIDENCE. § 636. In General. 637. General Rules of Evidence in Equity. 638. Order of Putting in Evidence. 639. Judicial Notice. 640. Admissions in Pleadings. 641. Bill in Another Suit as Evidence. 642. Pleas and Demurrers as Evidence. 643. Cross Bill as Evidence. 644. Answer to Cross Bill. 645. Answer as Evidence — In General. 646. Matters of Affirmative Defense. 647. Discovery Called for by Bill. 648. Effect of Waiving Ansv/er under Oath. 649. Answer as Evidence against Co-Defendants. 650. Answer as Evidence for Co-Defendant. 651. Effect of Answer under Oath. 652. Evidence to Overcome a Sworn Answer. 653. Answers on Information and Belief. 654. Answer by Corporation. 655. Failure to Answer Fully. 656. How Answer to be Read. 657. Method of Taking Evidence. 658. Examinations De Bene Esse. 659. Commissions to Take Testimony. 660. Letters Rogatory. 661. Form of Letters Rogatory. 662. Depositions. 663. Answers, Depositions, and Other Proceedings in Another Cause. 664. Amendment of Depositions. 665. Depositions in Cross Causes. 666. Admissibility of Depositions without Cross-Examinatlon. xxvi TABLE OF CONTENTS. 667. Suppressing Depositions. 668. Attendance of Witnesses. 669. Form of Subpoena Ad Testificandum. 670. Form of Subpoena Duces Tecum. 671. Compelling tbe Attendance of Witnesses out of the Jurisdiction of tbe Court. 672. Compelling Corporate OflScer to Produce Books. CHAPTER XXXV. HEARINa. 673. In General. 674. Hearing Cause out of Its Order. 675. Postponement of Hearing. 676. Private Hearing. 677. Hearing on Bill and Answer. 678. Hearing upon Bill Taken Pro Confesaa. 679. Hearing on Bill and Cross Bill. 680. Hearing of Causes Together. 681. Objection for Want of Parties. 682. Ordering Cause to Stand Over for New Parties. 683. Form of Order that Cause Stand Over to Add New Parties. 684. Ordering Cause to Stand Over to Supply Proofs. 685. Form of Order for Cause to Stand Over to Supply Proofs 686. Directing an Action at Law. 687. Interlocutory Orders. 688. Objections at the Hearing. 689. Course of Proceedings on the Hearing. 690. Reception of Evidence on the Hearing. 691. Hearing Additional Evidence. 692. Argument of Counsel. 693. Dismissal on Final Hearing. 694. Mode of Dismissing Bill on Hearing. 695. Form of Order Dismissing Bill on Hearing. 696. Reopening Cause after Hearing. 697. Retaining Bill with Liberty to Bring an Action. 698. Form of Order Retaining Bill, with Liberty to Bring an Action at Law. CHAPTER XXXVI. DECREES. 699. Definition and Nature. 700. Interlocutory and Final Decrees. TABLE OF CONTENTS. xxvii 701. Decretal Orders. 702. Decrees Requiring Further Orders to Complete Tbem. 703. Reservation of Liberty to Apply. 704. Decrees tiy Consent. 705. Decrees Pro Confesso. 706. Decrees by Default. 707. Decrees In Rem and in Personam. 708. Decree between Co-Defendants. 709. Decrees against Infants. 710. Infant's Day to Show Cause. 711. Consent Decrees against Infants. 712. Decrees must be Founded on Pleadings and Evidence. 713. Who may Take Advantage of Decrees. 714. Who Bound by Decrees. 715. Frame of Decrees. 716. Caption of Decree. 717. Recitals in Decrees. 718. Facts to Support Decree. 719. Ordering Part. 720. Declaratory Part. 721. Necessity of Signing Decree. 722. Form of Interlocutory Decree in Suit for Accounting. 723. Form of Decree in Suit for an Accounting. 724. Form of Final Decree. 725. Drawing Decree. 726. Entry and Enrollment. 727. Effect of Enrollment or Recording. 728. Nunc Pro Tunc Decrees. 729. Amendment and Modification of Decrees. 730. Power to Modify Manner of Enforcement. 731. Applications to Amend or Modify Decrees. 732. Opening Decrees. 733. Enforcement of a Decree. 734. Executions. 735. Sequestration. 736. Writ of Assistance. 737. Execution of Documents. 738. Sales of Property — By Whom Conducted. 739. Lien of Decrees. CHAPTER XXXVII. FURTHER DIRECTIONS. 740. In General. 741. Forms of Clauses of Reservation for Further Directions. xxviii TABLE OF CONTENTS. CHAPTER XXXVIII. COSTS. § 742. In General. 743. Costs out of the Fund. 744. Costs out of an Estate. 745. How Costs Awarded. CHAPTEE XXXIX. REHEARING. 746. In General. 747. Time for Application. 748. When Allowable. 749. Rehearing of Default and Consent Decrees. 750. Who may Apply for Rehearing. 751. How Applied for. 752. Form of Petition for Rehearing. 753. Rehearing Discretionary. 754. Withdrawing Petition. 755. Hearing on Petition. 756. Deposit on Rehearing. 757. Stay of Proceedings. 758. Form of Order to Stay Proceedings. 759. Proceedings upon Rehearing. 760. Evidence on Rehearing. 761. Costs on Rehearing. 762. Successive Applications for Rehearing. CHAPTEH XL. APPEALS. 763. In General. 764. Distinction between Rehearing and Appeal. 765. Appellate Jurisdiction in England. 766. Appealable Orders and Decrees. 767. Manner of Taking Appeal. 768. Effect of Appeal. 769. Procedure on Appeal. 770. Determination of Appeal. 771. Costs. TABLE OF CONTENTS. xxix CHAPTER XLI. BILLS OF INTERPLEADER. 772. Definition and Nature. 773. Requisites to Maintenance. 774. When the Bill should be Filed. 775. Frame of a Bill of Interpleader. 776. Form of Bill of Interpleader. 777. Affidavit of Noncollusion. 778. Form of Affidavit of Noncollusion. 779. Payment of Money into Court. 780. Parties. 781. Process. 782. Taking the Bill Pro Confesso. 783. Replication. 784. Injunction. 785. Form of Order for Injunction on Bill of Interpleader. 786. Demurrer. 787. Answer. 788. Cross Bill. 789. Evidence. 790. Hearing and Decree. 791. Form of Interlocutory Decree on Bill of Interpleader Directing a Reference. 792. Bills in the Nature of a Bill of Interpleader. CHAPTER XLII. BILLS OF CERTIORARI. § 793. In General. 794. Form of Bill of Certiorari. CHAPTER XLIII. BILLS TO PERPETUATE TESTIMONY, i 795. In General. 796. Such Bills not Favored by the Courts. 797. Frame of Bill. 798. Form of Bill to Perpetuate Testimony. 799. Process and Appearance. 800. Defense to Bill to Perpetuate Testimony. 801. Proceedings on Bill. XXX TABLE OF CONTENTS. CHAPTER XLIV. BILLS DE BENE ESSE. § 802. Definition and Nature. 803. Form of Bill to Take Testimony De Bene Esse. CHAPTEE XLV. BILLS OF DISCOVERY. 804. Definition and Nature. 805. Distinction Between Bill of Discovery and Bill for Discovery and Relief. 806. Who may Maintain a Bill of Discovery. 807. Matters of Which Discovery may be Had. 808. From Whom Discovery may be Had. 809. Frame of Bill. 810. Waiving Answer under Oath. 811. Verification. 812. Amending Bill. 813. Infants as Parties to Bills of Discovery. 814. Form of Bill for Discovery. 815. Process upon Bills of Discovery. 816. Defenses to Bills of Discovery. 817. Demurrers to Bills of Discovery. 818. Pleas to Bills of Discovery. 819. Answer to Bill of Discovery. 820. Effect of Answer. 821. Procedure upon Bills of Discovery. 822. Costs on Bills of Discovery. 823. Cross Bill for Discovery. 824. Supplemental Bill In Nature of Bill of Discovery. CHAPTER XLVI. SUPPLEMENTAL BILLS. 825. General Nature and OfiBce. 826. Supplemental Bill to Perfect Inchoate Right. 827. Original Bill Showing no Ground for Relief. 827a. Must be Germane to Original Bill. 828. Change of Interest. 829. Supplemental Bill as Defense to Cross Bills, and In Avoidance of Plea. TABLE OF CONTENTS. xxxi 830. Parties to Supplemental Bills. 831. Frame of the Supplemental Bill. 832. Form of Supplemental Bill (Praying Injunction). 833. Another Form of a Supplemental Bill. 834. Time of Filing. 835. Filing the Bill. 836. Form of Petition for Leave to File Supplemental Bill. 837. Form of Order to File Supplemental Bill. 838. Process and Appearance. 839. Demurrer. 840. Plea. 841. Answer. 842. Replication. 843. Evidence. 844. Hearing. 845. Entitling Orders. 846. Dismissing Bill. 847. Decree. CHAPTER XLVII. BILL OF REVIVOR. 848. Definition and Nature. 849. When Proper. 850. There must be Matter to be Litigated. 851. Revivor for Part of Matter in Litigation. 852. Revival for Costs. 853. Revival for Appeal. 854. To Give Effect to Action of Court of Review. 855. Revivor on Bill and Cross Bill, and on Decree in Several Suits. 856. Who may Revive — Before Decree. 857. Defendant not Entitled to Revive before Decree. 858. Who Entitled to Revive after Decree. 859. Applicant to Revive must Claim Only by Operation of Law. 860. Parties to a Bill of Revivor. 861. Parties Defendant to Bills of Revivor. 862. No Revivor before Appearance. 863. Frame of Bill of Revivor. 864. Form of Bill of Revivor against Executors of a Deceased De- fendant. 865. Filing Bill of Revivor. 866. Process. 867. Appearance. 868. Demurrer. 869. Plea. 870. Answer. xxii TABLE OF CONTENTS. 871. Replication. 872. Order to Revive. 873. Form of Order to Plead or Demur to Bill of Revivor. 874. Form of Order to Revive. 875. Form of Order on Complainant's Neglecting to Obtain Order to Revive. 876. Form of Order to Revive on Answer Consenting to Revive. 877. Hearing. 878t Effect of Revivor. CHAPTER XLVIII, BILL OF REVIVOR AND SUPPLEMENT. § 879. Definition and Nature. 880. When Such Bill may be Piled. 881. Frame of Bill. 882. Form of Bill of Revivor and Supplement. 883. Defenses. 884. Proceedings upon Such Bill. 885. Bill in the Nature of a Bill of Revivor and Supplement. 886. Filing Such Bill. CHAPTER XLIX. CROSS BILLS. S 887. Definition and General Nature. 888. Where Matter Available by Answer, Cross Bill Improper. 889. Matter Occurring after Cause at Issue Set up by Cross Bill. 890. Jurisdiction of Cross Bills. 891. Necessity for Cross Bill. 892. Treating Answer as Cross Bill. 893. Decree between Co-Defendants. 894. Relief Sought must be Equitable. 895. Cross Bill must be Germane to Original Bill. 896. Effect of Piling Cross Bill where Original Bill Lacks Equity. 897. Who may Pile Cross Bill. 898. Parties Defendant. 899. Filing the Cross Bill. 900. Directing Filing of Cross Bill. 901. Frame of Cross Bill. 902. Form of Cross Bill in Divorce Suit (Illinois). 903. Form of Cross Bill in the Nature of Plea Puis Darrein Con tinuance. TABLE3 OF CONTENTS. xxxiii 904. Process upon Cross Bill. 905. Demurrers to Cross Bill. 906. Pleas to Cross Bill. 907. Answer. 908. Abatement of Original Suit. 909. Staying Proceedings on Original Bill. 910. Form of Order to Stay Proceedings in Original Suit. 911. Hearing upon Cross Bill. 912. Form of Order that Original and Cross Bills be Heard Together. 913. Evidence. 914. Effect of Taking Cross Bill as Confessed. 915. Amending Cross Bill. 916. Decree. 917. Relation of Bill and Cross Bill. 918. Dismissal of Original Bill. CHAPTER L. BILLS OF REVIEW. 919. Definition and Nature. 920. When a Bill of Review Lies. 921. For Errors of Law Apparent on the Face of the Record. 922. On Newly-Discovered Matter. 923. Effect of Previous Bill. 924. Lies Only to Final Decree. 925. Parties to Bills of Review. 926. Bills of Review by Infants. 927. Does not Lie Generally to Consent Decrees. 928. Pro Confesso Decrees. 929. Pending Appeal. 930. Complainant must have Performed Decree. 931. Acceptance of Benefit of Decree. 932. Within What Time to be Brought. 933. Frame of the Bill. 934. Form of Bill of Review tor Errors of Law. 935. Form of Bill of Review on Discovery ol New Matter. 936. In What Court Filed. 937. Leave to File. 938. Form of Order to File Bill of Review. 939. Form of Order by Appellate Court Granting Leave to File Bill of Review. 940. Security to Adverse Party. 941. Process upon Bills of Review. 942. Taking Bills of Review Pro Confesso. 943. Defenses. 944. Plea. xxxiv TABLE OF CONTENTS. 945. Demurrer. 946. Answer. 947. Proceedings upon Pleas and Bemurrers. 948. Burden of Proof. 949. What will be Considered. 950. Effect of Filing the Bill. 951. Costa. CHAPTER LI. BILLS TO IMPEACH DECREE FOR FRAUD.' § 952. In General. 953. When to he Filed. 954. Frame of Bill. 955. Filing the Bill. 956. Form of Bill to Impeach a Decree Obtained by Fraud. CHAPTER LII. BILLS TO SUSPEND OR AVOID THE OPERATION OF DECREES. § 957. In General. CHAPTER LIII. BILLS TO CARRY DECREES INTO EXECUTION. § 958. In General. 959. Proceedings of Court on Such Bill. 960. Form of Bill to Carry Decree into Execution. CHAPTER LIV. BILLS IN THE NATURE OF BILLS OF REVIEW. § 961. Definition and General Nature. CHAPTER LV. BILLS IN THE NATURE OF BILLS OF REVIVOR. 962. Definition and General Nature. 963. How It Differs from a Bill of Revivor. 964. How It Differs from Original Bill in the Nature of a Supple- mental Bill. 965. Parties. TABLE OF CONTENTS. xxxv 966. Frame of Such a Bill. 967. Form of Bill in the Nature of Bill of Revivor. 968. Defense to and Proceedings upon Such Bills. CHAPTER LVI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. 969. Definition and General Nature. 970. Distinction between Supplemental Bills, and Bills in the Nature of a Supplemental Bill. 971. Frame of Bill in the Nature of a Supplemental Bill. 972. Form of Bill in the Nature of a Supplemental Bill. 973. Proceedings upon Original Bill in the Nature of a Supplemental Bill. CHAPTER LVII. SUPPLEMENTAL BILLS IN THE NATURE OF BILLS OF REVIEW. § 974. In General. 975. Frame of Bill. 976. Performance of Decree. 977. Necessity of Leave to File. 978. Form of Supplemental Bill in the Nature of Bill of Review. 979. Proceedings upon Such Bill. APPENDIX. A. Bacon's Ordinances. B. Rule^ of Practice for Courts of Equity of the United States. EQUITY PLEADING AND PRACTICE. CHAPTER I. GENERAL NATURE OP EQUITABLE JURISDICTION. § 1. Nature of equity. The jurisprudence of the United States, and of certain of the states composing the same, is divided into two principal branches, — common law and equity. Suits in equity include an immense number and variety of subjects, all of civil, and none, in mod- ern times, of criminal, jurisdiction.^ In the most general sense, equity is termed that which in human transactions is founded on natural justice, in honesty and right, and which properly arises ex aequo et bono. In this sense it answers precisely to the definition of justice or natural law, as given by Justin- ian in the Pandects.^ It is, however, erroneous to suppose that equity, as administered in England and America, embraced a jurisdiction so wide and extensive as that which arises from the principles of natural justice. Even the Roman law, which has been thought to deal to a vast extent in matters ex aequo et bono, never attempted so wide a range of duties for any of its judi- cial tribunals.^ Perhaps the most concise definition of equity, in the sense now under consideration, is that of Mr. Justice Story, who defines equity jurisprudence to be "that portion of remedial justice which is exclusively administered by a court. 14 Minor, Inst. Com. & St. Law (2d Ed.) 1212 (1097). For equity jurisdiction of the courts of the United States and of the several states, see 1 Pomeroy, Eq. Jur. §§ 282-358. = 1 Story, Eq. Jur. § 1. 3 1 Story, Eq. Jur. § 2. (1) § 2 EQUITY PLEADING AND PRACTICE. [Ch. 1 of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law."4 § 2. Equity is a uniform system of law. The chancery jurisdiction was at one time opposed with ve- hement disapprobation by common-law lawyers, and notions in regard to the discretionary power of courts of equity were prop- agated by some of the leading English text writers. Thus, Sel- den said: "For law we have a measure, and know what to trust to. Equity is according to the conscience of him that is chancellor; and, as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the meas- ure the chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indiiferent foot. It is the same thing with the chan- cellor's conscience."^ In the early history of English equity jurisprudence there probably was much to justify the sugges- tion that courts of equity were bounded by no certain limits or rules, but that they acted upon principles of conscience and natural justice, without much restraint of any sort f but with the lapse of time, equity has developed into a system of estab- lished law, and cannot now be said to be the chancellor's sense of moral right, or his sense of what is equal and just.'' One of the ablest judges that ever sat in equity — Lord Redesdale — said upon this subject : "There are certain principles on which courts of equity act, which are very well settled. The cases which occur are various, but they are decided on fixed prin- ciples. Courts of equity have in this respect no more discre- tionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been i 1 Story, Bq. Jur. § 25 ; Bispham, Eq. § 1 ; Bouvier, Law Diet. tit. "Equity." 6 See Selden, Table Talk, tit. "Equity"; 1 Story, Eq. Jur. § 19; 3 BI. Comm. 432, note (y). 8 1 Story, Eq. Jur. § 21. ^ Savings Institution v. Makin, 23 Me. 360. (2) Ch. 1] NATURE OF JURISDICTION. ^ 3 decided, and may thus illustrate or enlarge the operation of those principles; but the principles are as fixed and certain as the principles on which the courts of common law proceed."* Lord Mansfield, the great expounder of the common law, de- clared equity to be a "noble, rational, and uniform system of law."9 § 3. Distinction between courts of law and courts of equity. The remedies for the redress of divil wrongs, and for the en- forcement of rights, are divided into two classes, — first, those which are administered in courts of common law, and, second- ly, those which are administered in courts of equity. Rights which are recognized and protected and wrongs which are re- dressed by the former courts are called "legal rights" and "legal - injuries." Eights which are recognized and protected and wrongs which are redressed by the latter courts only are called "equitable rights" and "equitable injuries." The former are said to be rights and wrongs at common law, and the remedies therefor are remedies at common law. The latter are said to be rights and wrongs in equity, and the remedies therefor are remedies in equity.^" Mr. Jiistice Story illustrates the dis- tinction between courts of equity and courts of common law by considering the different natures of the rights which they are designed to recognize and protect, the different natures of the remedies which they apply, and the different natures of the forms and modes of proceeding which they adopt in order to accomplish their respective ends. (1) The different natures of the rights which they are de- signed to recognize and protect. Courts of equity can administer remedies for rights, which rights courts of common law do not recognize at all, or, if they recognize them, they leave them wholly to the conscience and good will of the parties. Thus, equity takes notice of and pro- 8 Bond V. Hopkins, 1 Schoales & L. 429. 9 Merwin, Eq. & Eq. PI. 3 101 Story. Eq. Jur. § 25. (3) § 3 EQUITY PLEADING AND PRACTICE. [Ch. 1 tects especially trusts and equitable estates generally; injuries arising by mistake, accident, and fraud; many cases of penal- ties and forfeitures, in order to relieve against them; cases of imposition, unconscionable bargains, and betrayals of confi- dence; many cases of impending irreparable injuries or med- itated rniscliief s ; and many cases of oppressive proceedings and undue advantages, — v^hile a court of common law in some of these cases, as notably in the case of trusts and equitable es- tates, does not recognize the right, and in all of them affords no protection thereto, or a very inadequate one.^^ (2) The different natures of the remedies which they apply. In courts of common law there are certain prescribed forms of action to which the party must resort to furnish him a rem- edy, and, if there be no prescribed form to reach such a case, he is remediless. In common-law actions, a general and un- qualified judgment only can be given for the plaintiff, or for the defendant, without adaptation of it to particular circum"- stances. There are many cases in which a simple judgment for either party, without qualifications or conditions, or pecul- iar arrangements, will not do entire justice, ex aequo et bono, to either party, and cannot give the desired relief, for the reason that they have no forms of remedy adapted to the objects. But courts of equity are not so restrained. Although they have prescribed forms of proceeding, the latter are flexible, and may be suited to the different postures of cases. They may adjust their decrees so as to meet most, if not all, of these exigencies, and they may vary, qualify, restrain, and model the remedy so as to suit it to mutual and adverse claims, controlling equi- ties, and the real and substantial rights of all the parties. They can bring before them all parties interested in the subject-mat- ter, and adjust the rights of all, however numerous, while courts of common law are compelled to limit their inquiry to the very parties in the litigation before them, although other persons 111 Story, Eq. Jur. § 29; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1218 (1103). (4) Ch. 1] NATURE OP JURISniCTION. § 4 may have the deepest interest in the event of the suit.^^ The remedies in courts of equity are frequently very different, in their nature, mode, and degree, from those of courts of com- mon law, even when each has jurisdiction over the same sub- ject-matter. Thus, a court of equity, if a contract is broken, will often compel a party specifically to perform the contract, whereas courts of law can only give damages for the breach of it. So, courts of equity will interfere by way of injunction to prevent a wrong, whereas courts of common law can grant re- dress only when the wrong is done.^^ (3) The different natures of the forms and modes of pro- cedure which they adopt. The modes of seeking and granting relief in equity are also different from those of courts of common law. Thus, equity determines contested facts by the court, instead of by a jury, and derives proofs from discoveries on oath made by the par- ties, as well as from the evidence of disinterested witnesses, al- though in this particular the coxirts of law are by statute in many of the states closely assimilated to the equity courts. ■''* § 4. The English court of chancery. Equity was in England a branch of the jurisdiction of the court of chancery, and was there denominated its extraordinary jurisdiction. Th^ chief judge of the court of chancery in Eng- 12 1 story, Eq. Jur. §§ 26-28. 13 1 Story, Eq. Jur. § 30. 14 1 Story, Eq. Jur. § 31; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1219 (1104). The functions of the courts of equity — that is, the jurisdiction exercised by them — have been subjected to various classifications by dif- ferent writers, all of them founded more or less closely upon a compar- ison with the authority and functions of the common-law courts. It is not believed that such classifications afford help to a practical un- derstanding of the subject, and they will only be referred to. For the classification proposed by Lord Redesdale, see Mitford, Eq. PI. 3 et seq., 103 et seq. For the classification proposed by Mr. Fonblanque and Mr. Justice Story, see 1 Fonblanque, Eq. B. I. c. 1, § 3, note (f), and Ameri- can note*; 1 Story, Eq. Jur. § 7.5 et seq. For the classification by ivir. Spence, see 1 Spence, Eq. Jur. 429 et seq. (5) 4 EQUITY PLEADING AND PRACTICE. [Ch. 1 land was the lord high chancellor. This office existed from the most remote antiquity of the law. King Arthur is said to have appointed a chancellor. The Anglo-Saxon monarchs, from Ethelbert downward, certainly had such an officer, although it is not therefore to be concluded, as some have done, that the chancery dispensed justice as an ordinary tribunal in the reign of King Alfred. The office of chancellor did, indeed, then ex- ist ; but centuries elapsed before the chancery assumed the func- tions of a court. ^^ The chancellor, however, for several cen- turies held a court, known as the "Court of Chancery," which consisted of two distinct tribunals, — the one, ordinai-y, being a court of common law ; the other, extraordinarj', being a court of equity. Which of these courts was the more ancient has given rise to dispute. Blackstone contended that the court of common law, which was the ordinary court of chancery and a court of record, was the more ancient. Lord Campbell, how- ever, expressed the opinion that they originated at the same time." The equitable, or extraordinary, branch of the court of chan- cery, for many ages possessed more judicial consequence than any other court in England; and in the jurisprudence of the United States, and of many of the states, equity cognizance holds an important place. The causes which gave rise to the equitable jurisdiction of the court of chancery in England have been stated to be four in number : (1) The unreasonable rigor or remissness of the clerks of chancery in omitting to devise ncAv writs, and the illiberality of the judges in declining to extend the remedial effect of the old. It was the duty of such clerks to hear and examine the complaints of those who sought redress in the king's courts, and to furnish them with the appropriate writs. They pos- sessed the power to adapt the existing forms to particular cases, 15 4 Minor, Inst. Com. & St. Law (2d Ed.) 1213 (1098), citing 1 Camp- bell, Lives Ld. Ch. 26. 16 4 Minor, Inst. Com. & St. Law (2d Ed.) 1213 (1098), citing 1 Camp- bell, Lives Ld. Ch. 30: 2 Bl. Comm 47. (6) Ch. 1] NATURE OF JURISDICTION. which were only new in the instance, and not in principle. The clerks neglecting to perform this duty, the statute of 13 Edw. I., c. 24, was passed, whereby it was provided that "whensoever from henceforth it shall fortune in the chancery [that is, in the registry of writs kept there] that in one case a writ is found, and in like case falling under like law, and requiring like remedy, is found none, the clerks of the chancery shall agree in making the writ; or the plaintiffs may adjourn it until the next par- liament, and let the cases be written in which they cannot agree, and let them refer themselves until the next parliament, and, by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants." This statute led to the adoption of numerous writs, some in tort and others in con- tract, taking the name of writs of trespass on the case. This statutory provision, with some effort on the part of the clerks or masters in chancery, might have effectually answered in some important particulars the purposes of a court of equity; and on the other hand, even though the clerks had disregarded, as they did, the policy of the statute above cited, had the judges exercised a due liberality in extending the remedial effects of the existing writs, there would have been comparatively small occasion to resort to any extraordinary jurisdiction. But both clerks and judges were wanting in a just appreciation of their duty, and suitors, finding themselves denied redress in any of the king's courts, brought their grievances directly to the king, and in process of time all such cases of residuary or unappro- priated jurisdiction fell under the extraordinary authority of the court of chancery. ^'^ (2) The power and influence of the great barons in pervert- ing the administration of justice.-'^ 1' The foregoing is taken almost bodily from that great work, Minor, Inst. Com. & St. Law (2d Ed.) vol. IV., pp. 1214, 1215 (1099, 1100), where are cited 1 Spence, Eq. Jur. 238, 239; 2 Reeve, Eng. Law, 203; Pref. 9 Co. p. xxviii.; 3 Bl. Comm. 50, 51. 18 4 Minor, Inst. Com. & St. Law (2d Ed.) 1215 (1100) ; 1 Spence, Eq. Jur. 342, 343; 1 Campbell, Lives Ld. Ch. 32. § 4 EQUITY PLEADING AND PRACTICE. [Ch. 1 (3) The general inadequacy, in many cases, of the only rem- edies obtainable in a court of law. Instances of this are where the parties were interested, as in the case of partners, touching affairs of the partnership ; where the specific enforcement of a collateral agreement was necessary to the justice of the case; or where there was urgent need, by some specific prohibitorj pro- cess, to prevent irremediable damage to property or to health.-^^ In such cases the intervention of equity was necessary in order to prevent a failure of justice. (4) The introduction of uses and trusts into England. Uses and trusts were introduced in the latter part of the reign of Ed- ward III., about A. D. 1370. The idea was derived from the fidei commissum of the Koman law, and was resorted to by the ecclesiastics in order to evade the statutes of mortmain. Such introduction of uses or trusts may have given new activity and extended operation to the jurisdiction of the court, but it did not found it. The redress given by the chancellor in such cases was merely a new application of the old principles of the court, since there was no remedy at law to enforce the observance of such uses or trusts.^" Originally, the lord chancellor was the only judge sitting in the court of chancery. ISText in order of time, as well as of rank, came the master of the rolls, whose office was established in the reign of Edward the Eirst. With the increase of busi- ness, vice-chancellors were added to the court. From the de- cisions of a vice-chancellor, as well as from those of the master of the rolls, an appeal lay to the chancellor. In 1850 the new court of appeal was created, for the purpose of relieving the lord chancellor, in some degree, of his judicial duties. Appeals lay to this court from the decisions of the master of the rolls and of the vice-chancellors.^-' In 1873 important changes were made in the judicial system of England. These were brought 18 4 Minor, Inst. Com. & St. Law (2(1 Ed.) 1216 (1101); 1 Campbell, Lives Ld. Cli. 32. 20 1 Story, Eq. Jur. § 49. See, also, 4 Minor, Inst. Com. & St. Law (2d Ed.) 1216 (1101); 1 Spence, Eq. Jur. 442 et seq.; 3 Bl. Comm. 51. 21 Merwin, Bq. & Eq. PI. 9, 10. (8) Ch. 1] NATURE OF JURISDICTION. about by numerous complaints of the delay and expense caused by the dual system; that is, the distinction between courts of common law and courts of equity. By the statutes of 1873 and subsequent amendments, the courts which had sat so many cen- turies at Westminster Hall were consolidated into one supreme court, of which chancery became simply a division, while it was provided that equitable relief should in a proper case be administered concurrently by each division, and that in a prop- er case the principles of equity should prevail over those of the common law.^^ The office of vice-chancellor was then abol- ished, and the courts of chancery are now constituted as fol- lows: the lord chancellor, five lords justices of the court of appeal, besides the master of the rolls (who is a member of this court, and who, when sitting, is the presiding judge, in the ab- sence of the lord chancellor), and six judges of the high court attached to the chancery division. The right of appeal exists from the justices to the lords justices of the court of appeal; from the lords justices, or from the lord chancellor, to the house of lords. The house of lords is the supreme court of appeal. It practically consists of the law lords ; that is, the lord chancellor, any ex-lord chancellor, and other judges who have been distinguished by a peerage. In practice, only the law lords sit or participate in the decision of appeals.^^ § 5. Courts of equity in the United States. Equity, as a branch of the law of England, was brought over by the colonists, and found expression in the judicial frame- work of all the colonies.^* In Pennsylvania, equity jurispru- dence was formerly administered through the forms, remedies, and proceedings of the common law, and was thus confused with legal rights and titles in a manner not easily comprehensible elsewhere.^® In many of the colonies, during their connection 22 36 & 37 Vict. c. 66, §§ 24, 25; Kerly, Hist, of Eq. 294. 23 Merwin, Bq. & Eq. PI. 10, 11. 2* Wilson on Courts of Chancery in America, 18 Am. Law Rev. 226 ; 1 Story, Eq. Jur. § 58; Wells v. Pierce, 27 N. H. 512; Copp v. Hen- niker, 55 N. H. 210, 20 Am. Rep. 194; 4 Kent, Comm. p. 163, note (d). 25 1 Story, Eq. Jur. § 58. See article by S. G. Fisher in 1 I^aw Quart. (9) § 5 EQUITY PLEADING AND PRACTICE. [Ch. 1 with Great Britain, equity jurisprudence either had no exist- ence at all, or a very imperfect and irregular administration. Even after the Revolution it was of slow growth. In the state of New York, equity was scarcely felt in the first general ad- ministration of justice until about the period of the Reports of Caines and Johnson. ^^ The courts and systems of legal pro- cedure of colonial times were generally retained upon the for- mation of the Union, and for a number of years thereafter. In Louisiana, however, the civil law obtained. In Texas, the abo- lition of the distinction between actions at law and suits in equity was accomplished in 1840. In New York, the distinc- tion between actions at law and suits in equity was effaced in 1848 by the adoption of the Code of Civil Procedure. At the present time, about two-thirds of all the states and territories have adopted the substantial features of the reformed proced- ure.^'' The states in which the distinction between law and equity is still maintained ai-e Alabama, Delaware, Mississippi, New Jersey, Tennessee, Arkansas, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, New Hampshire, New •Mexico, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. In the first five of these states, distinct courts of equity are established. In the others, and in the federal tribunals, whose equity procedure is uniform throughout the United States, and cannot be affected by state legislation, the powers are exercised concurrently with the common-law juris- diction, by the same tribunal being at once a court of law and a court of equity.^" In the latter group of states, ,the bound- aries between common-law and chancery procedure are jealous- Rev. 455; Torr's Estate, 2 Rawle (Pa.) 250; Laussat's Essay on Equity in Pa. App. (1826); Com. v. Archbald, 195 Pa. 317, 46 Atl. 5. 2» 1 Story, Eq. Jur. § 56. See article by S. D. Wilson on Courts of Chancery in America, 18 Am. Law Rev. 226 et seq. =T 11 Am. & Eng. Bnc. Law (2d Ed.) 154. 28 1 Story, Eq. Jur. § 58; Bispham, Bq. § 15. In Mississippi the circuit court has chancery and law jurisdiction, the former being limited to cases where the value in controversy does not exceed $500. Henderson v. Herrod, 23 Miss. 434. (10) Oh. 1] NATURE OF JURISDICTION. g 6 ly guarded. When a suit in equity comes before the court, it is conducted and decided strictly according to chancery pro- ceedings, and as if that were the sole jurisdiction which he ex- ercised. The next day he may be presiding in trials before a jury, at common law, but for the time being he is a chancel- lor.29 In the states and territories of the Union not herein spe- cifically mentioned, the distinction between actions at law and suits in equity is abolished by the codes and practice acts ; but although this has been done, still the principles by which the rights of the parties are to be determined remain unchanged. '''' § 6. Equitable jurisdiction of federal courts. The equitable jurisdiction of the federal courts, excluding from consideration the territorial courts and the courts of the District of Columbia, is in the supreme court, the circuit courts of appeals, the circuit courts, the district courts, the court of claims, and the court of private land claims.^^ The supreme ■court has original jurisdiction, both at law and equity, in all cases affecting ambassadors, other public ministers, and con- suls, and those in which a state is a party.^^ In all other cases its jurisdiction is appellate. The jurisdiction of the circuit court of appeals is exclusively appellate.^ ^ The circuit court of the United States is the principal court having original cog- nizance of suits in equity.^* In certain instances the United States district court has equity jurisdiction.^^ 29 Merwin, Eq. & Eq. PL 12. For practice in Georgia, see MacKenzie V. Flannery, 90 Ga. 590, 16 S. E. 710. , soGudger v. Western N. C. R. Co., 21 Fed. 81; Bennett v. Butter- worth, 11 How. (U. S.) 669. 31 Foster, Fed. Pr. (3d Ed.) § 13. S2 Foster, Fed. Pr. (3d Ed.) § 14; Rev. St. U. S. § 687. 33 Poster, Fed. Pr. (3d Ed.) § 14a; 26 U. S. Stat. 829, § 12; Rev. St. U. S. § 716. 34 For equity jurisdiction of the federal circuit courts, see Foster. Fed. Pr. (3d Ed.) §§ 15-24; 1 Desty, Fed. Proc. (9th Ed.) §§ 84-95; Act March 3, 1875 (Rev. St. § 629) cIs. 1 and 2, as amended March 3, 1887, and corrected August 13, 1888 (25 Stat. 433); 30 Stat. 495, 552, (11) ^ 6 EQUITY PLEADING AND PRACTICE. [Ch. 1 The federal courts cannot exercise any eqviity powers, except such as are conferred by an act of congress, and those judicial powers possessed and exercised by the high court of chancery in England at the time of the formation of the constitution of the United States. Powers not judicial, exercised by the English chancellor as the representative of the king's prerogative as parens patriae, are not possessed by the federal courts.'''^ The rule that the power of the federal courts in regard to equitable rights is to be regulated by the law of the English chancery applies to the remedy, not to the right. The consti- tution provides only for the form of the remedy ; and no fed- eral court, sitting as a court of chancery, can grant a remedy to a complainant who has no right, either under United States laws, or the laws of the state in which he brings suit, even though the right might have been enforced in the English court at the time the constitution was adopted.^^ United States Equity Eule 90, providing that, where the rules prescribed by the supreme or circuit courts do not apply, the practice of the circuit courts shall be regulated by the practice of the high court of chancery in England, so far as the same may reasonably be ap- plied, consistently with the local circumstances and local con- veniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice, affects the practice only of the circuit courts, and does not ap- ply in determining questions of jurisdiction.^* The federal courts have no jurisdiction upon the subject of divorce, or for the allowance of alimony, either as an original i^rnceeding in chancery, or as an incident to divorce a vinculo, or from bed and board. •'^^ 553; 29 Stat. 482, 695; 26 Stat. 829; Rev. St. §§ 629, 637, 638; 28 Stat. 570. 3-' Poster, Fed. Pr. (3d Ed.) § 25; Rev. St. U. S. § 563; 24 Stat. 505; 25 Stat. 357; 30 Stat. 545, 546, 552; 1 Desty, Fed. Proc. (9th Ed.) §§ 49-61. 3<5 Lorman v. Clarke, 2 McLean, 568, Fed. Cas. No. 8,516; Loring v. Marsh, 2 Cliff. 469, Fed. Cas. No. 8,515; Fontain v. Ravenel, 17 How. (U. S.) 390. 3T Meade v. Beale, Taney, 339, Fed. Cas. No. 9,371. 38 Lewis V. Shainwald, 7 Sawy. 403, 48 Fed. 492. 38 Barber v. Barber, 21 How. (U. S.) 582. (12) Ch. 1] NATURE OP JURISDICTION. § 7 § 7. Importance of a knowledge of equity pleading and practice. While it is true that in many of the states of the United States the distinction between actions at law and suits in equity is abolished by the codes and practice acts, still an understanding of equity practice is necessary to every practitioner. In the federal courts, chancery and chancery jurisprudence are sub- stantially retained in their integrity. Even though the state in which the federal court is sitting is one in which the distinc- tion between actions at law and suits in equity is abolished by the codes and practice acts, when a suit is originally brought in the federal court the distinction between law and equity is rigid- ly adhered to. The principle is well settled that the chancery| jurisdiction of federal courts is not impaired by state laws cre-i-^ ating special jurisdictions. The chancery procedure of federal; courts is uniform everywhere in the United States, and is indei- pendent of state laws.''" But an enlargement of equitable rights by state legislation will be administered in the federal courts as well as by the courts of the state. *^ The statutes of the United States provide: "That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal.''''" Where the case made by the pleadings in the state coiirt is in its na- ture a law action, it must, when removed to the federal court, proceed as such, and no repleader is necessary.*"* Where the suit in the state court is in its nature a suit in equity, it must 40 Ridings V. Johnson, 128 U. S. 212; United States v. Howland, 4 Wheat. (U. S.) 108; Boyle v. Zacharie, 6 Pet. (U. S.) 648; Gaines v. Relf, 15 Pet. (U. S.) 9; Bronson v. Schulten, 104 U. S. 410; Thomas v. Nantahala Marble & Talc Co., 58 Fed. 485, 8 U. S. App. 429; Elliott V. Schuler, 50 Fed. 454. "Holland v. Challen, 110 U. S. 15; In re Broderick's Will, 21 Wall. (U. S.) 520. 42 18 Stat. 472; 25 Stat. 433; 1 Desty, Fed. Proc. (9th Ed.) § 110. 43 Perkins v. Hendryx, 23 Fed. 418; Dart v. McKinney, 9 Blatchf. 359, Fed. Cas. No. 3,583. (13) § 7 EQUITY PLEADING AND PRACTICE. [Ch. 1 proceed as an equity cause on its removal into the federal court.** A repleader in such, a case is customary, but not in- dispensable, if the allegations in the pleadings in the state court are sufficient.*^ Where the suit in the state court unites legal and equitable grounds of relief or of defense, as authorized by the statutes of the state in which the suit was brought, it may, in the federal court, be recast into two cases, — one at law and one in equity, — and in such a case a repleader is necessary.*" *4 Perkins v. Hendryx, 23 Fed. 419. « Foster, Fed. Pr. (3d Ed.) § 391; Phelps v. Elliott, 26 Fed. 8cS3. 48 Perkins v. Hendryx, 23 Fed. 418. (14) CHAPTER II. PERSONS CAPABLE OP SUING AND BEING SUED IN EQUITY. § 8. In general. As a general rule, all persons, of whatever sort or condition, are capable of instituting suits in equity. This rule is subject to very few exceptions, and extends from the highest person in the state to the most distressed pauper.^ The incapacities to sue are of two sorts : First, those which are absolute; and, secondly, those which are partial. The ab- solute are such as, while they continue, wholly disable the party to sue. The partial are siich as disable the party to sue by himself alone, without the aid of another. The absolute incapacities in England were outlawry, excommunication, at- tainder, and alienage. In America the two former are either wholly unknown, or, if known at all, are of very limited local existence.^ Partial incapacity to sue exists in the case of in- fants, of married women, of idiots and lunatics, and other per- sons who are incapable, or are by law specially disabled to sue in their ovsm names. Such, for example, as in some of the states of America, are common drunkards and spendthrifts who are under guardianship.^ In general, it may be stated that those persons who may sue in equity may also be sued. A bill may be exhibited against all bodies politic and corporate, against all persons not laboring under any disability, against aliens, and against infants, mar- ried women, idiots, and lunatics, and also generally against per- sons by law disabled to institute or maintain a suit, for they 1 Beach, Mod. Eq. Pr. § 40; Story, Eq. PI. § 50; Cooper, Eq. PI. 24. See Mitford, Eq. PI. 20 et seq. 2Mitford, Eq. PI. 226, 229; Story, Eq. PL § 51; Evans v. Cassidy, 11 Ir. Eq. 243. 3 Story, Eq. PI. § 56. (15) i; 9 EQUITY PLEADING AND PRACTICE. [Ch. 2 cannot plead their disability in their defense. There is, however, some diversity as to the extent and manner of making defense by persons who labor under an absolute or a partial incapacity, as will hereafter be shown.* If the incapacity to sue does not appear on the face of the bill, the defendant must take advan- tage of it by plea ; but if the incapacity appears on the face of the bill, he may demur.'' § 9. Alienage, Alienage alone does not constitute a general disability to sue in courts of law or of equity. An alien friend has a right to sue in any court. An alien enemy is incapable of suing while he remains an enemy ; at least, unless under very special circum- stances.® The disability of an alien enemy is not absolute to the extent of destroying all his future right to sue when peace has actually taken place between the countries. The true effect of such disability is only to suspend the commencement of any suit during the war, or, if the suit is already commenced, to sus- pend its further progress until the return of peace.'^ Alienage of a defendant is no bar to a suit against him.* The liability of an alien enemy to be sued in the courts of a hostile country carries with it the right to use all the means and appliances of defense. He may have process to compel the appearance of his witnesses, or a discovery, and may sue out a writ of error. The liability and the right are inseparable. A different result would be a blot upon any jurisprudence and civilization, and would be contrary to the first principles of a social compact, 4 Story, Eq. PI. §§ 67, 68; Mitford, Eq. PI. 30, 102, 103. 5 Nelms V. Edinburg- American Land Mortgage Co., 92 Ala. 162, 9 So. 141; Liddell v. Carson, 122 Ala. 518, 26 So. 133. 6 story, Eq. PI. § 51; Daubigny v. Davallon, 2 Anstr. 467. It has been doubted whether this doctrine is applicable to bills of discovery. Al- bretcht v. Sussmann, 2 Ves. & B. 323. Ordinarily, there would seem to be no ground for distinction between bills for discovery and bills for relief. Daubigny v. Davallon, 2 Anstr. 467; Story, Eq. PI. § 53. 7 Story, Eq. PI. § 54; Bell v. Chapman, 10 Johns. (N. Y.) 183. s Masterson v. Howard, 18 Wall. (U. S.) 99; McNair v. Toler, 21 Minn. 175. (16) Ch. 2] WHO MAY SUE AND BE SUED. § 10 and of the right administration of justice.® An alien married woman, abandoned by her alien husband in a foreign country, may sue and be sued as a feme sole.^° It is not a bar to a suit by an alien that a remedy like the one sought by him is not reciprocally allowed to aliens in the country to which he belongs,^ ^ and he does not lose his right to sue in the federal courts by residing in one of the states of the Union. ^^ § 10. Suits by and against sovereigns. Foreign sovereigns may sue in the courts of equity of an- other country, but no sovereign is so entitled to sue unless he has been recognized by the government of the country in which the suit is brought.-'^ Foreign sovereigns are not suable in the courts of a foreign country, although they may be personally found within the dominions of such foreign country.^* They do not, by appearing in a suit against them, waive their right to demur for want of jurisdiction.^^ A distinction has been suggested where a foreign sovereign assumes the character of a trader; and whether a suit m rem will lie against the prop- erty of a foreign sovereign does not appear to be definitely set- tled.^® In England the king and queen, although they may su.e, are not liable to be sued ; and in America a similar exemp- tion generally belongs to the state or government.-''' 9 McVeigh v. United States, 11 Wall. (U. S.) 259; Masterson v. How- ard, 18 Wall. (U. S.) 99. loMcArthur v. Bloom, 2 Duer (N. Y.) 151. 11 Taylor v. Carpenter, 2 Woodb. & M. 1, Fed. Cas. No. 13,785. i2Breedlove v. Nicolet, 7 Pet. (U. S.) 413. 13 Story, Eq. PI. § 55; King of Prussia v. Kuepper's Adm'r, 22 Mo. 550; Hullett v. King of Spain, 2 Bligh (N. S.) 51; Calvert, Parties, c. 3, § 27, pp. 310, 311; King of Spain v. Oliver, 2 Wash. C. C. 429, Fed. Cas. No. 7,814. 1* Story, Eq. PI. § 69a; Brunswick v. King of Hanover, 6 Beav. 1. 15 Beach, Mod. Eq. Pr. § 43; Brunswick v. King of Hanover, 6 Beav. 1. 16 The Charkieh, L. R. 4 Adm. & Ecc. 59. 17 Story, Eq. PL § 69. For right to make attorney general party de- fendant in England where the interests of the crown, or of those under its particular protection, are concerned, and for general consideration of (17) Equity — 2 § 11 EQUITY PLEADING AND PRACTICE. [Ch. 2 § 11. Infants. An infant is incapable by himself of exhibiting a bill, as well on account of his supposed Avant of discretion as of his inability to bind himself and to make himself liable to the costs of the suit. When, therefore, an infant claims a right or suffers an injury, on account of which it is necessary to ap- ply to a court of equity, he must proceed in the nanae of an adult, as his next friend, who is considered an oiScer of the court, and is responsible accordingly. Even though the infant has a guardian, he may sue by next friend.^* The next friend is no party to the suit, in the technical sense of the term.'" Any person of full age and sound mind may institute a suit on behalf of an infant, without any previous authority from the infant or from the court. ^^ The next friend should zeal- ously watch and protect the interests of the infant involved in the litigation. If he fails in his duty, or if he have an inter- est in the subject-matter of the litigation antagonistic to the interests of the infant, the court can and should remove him and appoint another. ^^ If he does not lay his case properly before the court, by collusion, neglect, or mistake, a new bill may be brought on behalf of the infant. ^^ If it be represented to the court that the suit brought in the name of the infant is not for his benefit, an inquiry into the facts will be directed to right to sue the state, see Story, Eq. PI. § 69; Mitford, Bq. PI. 30, 102; Balch V. Wastall, 1 P. Wms. 445; Dolder v. Bank of England, 10 Ves. 352; Carr v. United States, 98 U. S. 433. 18 Story, Eq. PI. §§ 57, 59; Mitford, Eq. PI. 25, 26; HooliS v. Smith, 18 Ala. 338; Deford v. State, 30 Md. 179; Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690. It is said to be doubtful whether an infant can sue by his guardian. Story, Eq. PI. § 58; Offley v. Jenney, 3 Ch. R. 92. 19 Beach, Mod. Eq. Pr. § 45; Baltimore & 0. R. Co. v. Fitzpatrick, 36 Md. 619. 20 Beach, Mod. Eq. Pr. § 44; Story, Eq. PI. § 57. For right of father to Institute suit, see Woolf v. Pemberton, 6 Ch. Div. 19; Rue v. Melrs, 43 N. J. Eq. 377, 12 Atl. 369. 21 Beach, Mod. Eq. Pr. § 45; Kingsbury v. Buckner, 134 U. S, 650; Phillips V. Phillips, 185 111. 629, 57 N. E. 796; Jarvis v. Crozier, 98 Fed. 753; In re Burgess, 25 Ch. Div. 243. 22 Story, Eq. PI. § 59; Mitford, Eq. PI. 26, 27. (18) Ch. 2] WHO MAY SUE AND BE SUED. §11 be made by one of the masters of tbe court ; and if he reports that the suit is not for the benefit of the infant, the court will stay the proceedings. If two suits for the same purpose are instituted in the name of an infant by different persons, acting as his next friend, the court will direct an inquiry, to be made in the same manner, which suit is more for the benefit of the infant, and, when that point is ascertained, it will stay the proceedings in the other suit.^^ Infants must defend a suit by a guardian who is appointed by the court, and is usually their nearest relation, not con- cerned in interest in the matter in question.^* The person so appointed is usually styled the "guardian ad litem." A guard- ian ad litem need not be a relative of the infant. ^^ It is the duty of the court to see that the rights of infants are not preju- diced or abandoned by the answers of their guardians.^^ The guardian must put in a proper answer, and is liable for the costs of a scandalous or impertinent answer. ^'^ In the chancery courts of England, and in many of the states of the Union, a regular guardian cannot, in that capacity, appear and make defense in court for his wards, but a guardian ad litem must be appointed for that purpose."* In some states the rule is otherwise.^® 23 story, Bq. PI. § 60; Mitford, Eq. PI. 27, 28; Da Costa v. Da Costa, 3 P. Wms. 140; Gage v. Stafford, 1 Ves. Sr. 544; Turner v. Turner, 2 Eq. Abr. 238; Garr v. Drake, 2 Johns. Ch. (N. Y.) 542; Fulton v. Rose- velt, 1 Paige (N. Y.) 178. 24 Story, Eq. PI. § 70; Enos v. Capps, 12 111. 255; Mitford, Bq. PI. 30; McDermott v. Thompson, 29 Fla. 299, 10 So. 584; Jarvis v. Crozier, 98 Fed. 753. 25 Rhoads V. Rhoads, 43 111. 239; Bartlett v. Batts, 14 Ga. 539. 20 Stark v. Brown, 101 111. 395; Peak v. Pricer, 21 111. 164; Stephens V. Van Buren, 1 Paige (N. Y.) 479; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304; Richards v. East Tennessee, V. & G. Ry. Co., 106 Ga. 614, 33 S. E. 193. 27 1 Daniell, Ch. PI. & Pr. (5th Ed.) 163, cited in Beach, Mod. Bq. Pr. § 48; Dow V. Jewell, 21 N. H. 486; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304. 28 Cowan V. Anderson, 7 Cold. (Tenn.) 284. 29 Cowan V. Anderson, 7 Cold. (Tenn.) 284. See Johnson v. Water- house, 152 Mass. 585, 26 N. E. 234. (19) § 12 EQUITY PLEADING AND PRACTICE. [Ch. 2 Where a bill is filed on behalf of an infant by his next friend, the infant cannot be personally charged with costs, unless, when he arrives at his majority, he adopts the proceeding and elects to prosecute the suit. If the suit was improperly brought, and the infant, when he arrives at his majority, elects to abandon it, he may apply for a reference to ascertain the fact, and the bill will then be dismissed, with costs to be paid by the next friend ; but if the suit was properly instituted for the benefit of the in- fant, and at his majority he elects to abandon it, he must, upon the dismissal of the bill, pay the costs of his next friend as well as those of the adverse party. Where the suit is terminated before the infant becomes of age, the next friend will be charge- able with the costs, unless there be a fund belonging to the in- fant under the control of the court, and it appears that the suit was brought in good faith, and with a bona fide intent to ben- efit the infant, in which case the court will direct the costs to be paid out of the fund.^° In a suit brought by an infant, not by guardian or next friend, when the infant becomes of age no amendment nor appearance of a guardian or next friend is nec- essary to obviate the objection that the suit was improperly brought. ^^ An answer by an infant may be amended, on mo- tion, when he attains full age.^^ Where a general answer has been put in by a guardian ad litem, the infant, upon arriving at full age and before decree, is entitled, as a matter of right, to an order for leave to put in a new answer, upon a showing to the satisfaction of the court that the new or further answer is necessary to protect his rights.^^ § 12. Suits by and against married women. In the absence of statute, a married woman could not sue 30 Waring v. Crane, 2 Paige (N. Y.) 79; Anonymous, 4 Madd. 461; Pearce v. Pearce, 9 Ves. 548; Whittaker v. Marlar, 1 Cox, 285. See, also, Wainwright v. Wilkinson, 62 Md. 146. 31 Woodman v. Rowe, 59 N. H. 453. 32 Winston v. Campbell, 4 Hen. & M. (Va.) 477. 33 Stephenson v. Stephenson, 6 Paige (N. Y.) 353. See, also, Thomp- son V. Maxwell Land Grant & Ry. Co., 3 Gild. (N. M.) 448, 6 Pac. 193. (20) Ch. 2] WHO MAY SUB AND BE SUED. g 1^ except jointly with her husband, save where her husband was banished, or had abjured the reahn, or had been transported for felony, or in some other privileged cases of a kindred nature. The rule in suits in equity is, in ordinary cases, the same as at law. There are, however, some exceptions in equity which are wholly unknown at law. Thus, if a married woman claims rights in opposition to the rights claimed by her husband, she is allowed to sue by next friend. No person can, however, ex- hibit a bill as her next friend without her consent. ^^ In cases where the wife has a separate property, it is often stated that in respect to this property she may sue and be sued in equity as a' feme sole. In practice, where a suit is brought by the wife for her separate property, the husband is sometimes made a co-complainant, but this practice is incorrect, and in all such cases she ought to sue as sole complainant, by her next friend, and the husband should be made a party defendant.^® When the wife sues or is sued by a stranger in respect to such sep- arate property, the husband is always joined as a party de- fendant, if he is within the country and capable of being made a party; if not, the suit, if against the wife to charge her sep- arate estate, may be carried on without him, with the leave and under the direction of the court. ^® At law, neither the hus- band nor wife can sue the other, but in equity the husband may sue the wife, or the wife the husband.^'' When a married woman is sued, ordinarily her husband must be joined with her in the suit, and their answer must also be joint. A married woman may, however, be made a defendant and answer as a feme sole; as, for example, whenever her hus- band is complainant in the suit, and sues her as a defendant, or where her husband is an exile, or has abjured the realm, or has been transported under a criminal sentence, or is an alien enemy. Generally, however, she cannot answer separately when 34 Story, Eq. PI. § C] ; Mitford, Eq. PI. 28. 35 Story, Eq. PI. § 63. 36 Story, Eq. PI. § 63. 37 Story, Eq. PI. § 62. (21) S 13 EQUITY PLEADING AND PRACTICE. [Ch. 2 her husband is joined, or otight to be joined, as a defendant, without an order of court for that purpose.^^ In most of the states of the Union it is now provided by statute that the disabilities of a married woman to sue and be sued are removed. § 13. Idiots, lunatics, and persons of weak mind. Sonae confusion exists in regard to the right of persons men- tally unsound to sue in courts of equity. Where such a person has been adjudged to be 7ion compos mentis, and a legal com- mittee or guardian has been appointed, he should sue by such representative.^^ Sometimes informations are exhibited by the attorney general on behalf of idiots and lunatics, consid- ering them as under the peculiar protection of the court, and particularly if the interests of the committee have clashed or maj- clash with their interests, or if they have no com- mittee.''" The settled practice in England, in bringing suits in the chancery court for the benefit of lunatics, was to file the bill in the name of the lunatic by his committee, or to join the lunatic and committee as complainants, unless the object of the suit was to avoid an act done by the lunatic dur- ing his lunacy, in which case he might be joined or omitted.*^ In some of the states of America, courts of equity are intrust- ed with a like authority as in England to appoint committees for idiots or lunatics, and in such cases the idiots and lunatics sue by their committees. In other states, idiots and lunatics 38 Story, Eq. PI. § 11; Mltford, Eq. PL 104, 105. For full discussion of suits by and against married women, see Beach, Mod. Eq. Pr. §§ 51, 52; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 87-128. A statute authorizing suits between husband and wife does not oust equity of its jurisdic- tion unless the remedy is extinguished by a direct prohibitory provi- sion in the statute. "Woodward v. Woodward, 148 Mo. 241, 49 S. W. 1001. But see Larison v. Larison, 9 111. App. 27, to the contrary. 39 1 Daniell, Ch. PI. & Pr. (5th Ed.) 82, 83; Beach, Mod. Eq. Pr. § 49; Story, Eq. PI. § 64; Mitford, Eq. PI. 29; Bird's Committee v. Bird, 21 Grat. (Va.) 712. See Ryder v. Topping, 15 111. App. 216. 40 Story, Eq. PI. § 64; Mitford, Eq. PI. 29. 41 West V. West, 90 Ala. 458, 7 So. 830; Cooper, Eq. PI. 32. (22) Ch. 2] WHO MAY SUB AND BE SUED. § 13 are by law placed under guardians appointed by other courts, and ordinarily by the courts of probate of the state. In such cases the idiots and lunatics sue or defend suits by their proper guardians, unless some other is specially appointed for that purpose.*^ When it is said by the writers that idiots and luna- tics must sue by their committees, it is not meant that a suit is to be brought by the committee in his own name, merely de- scribing him as the committee of the lunatic, but it is meant that the suit should be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming him, as in the case of an infant suing by his next friend, or that the suit should be prosecuted in the names of the lunatic and of his committee.*'' Whether or not a person non compos mentis may sue by a next friend is a matter of dispute. Some authorities hold that where a person is insane, but has not been judicially adjudged so, suits, both at law and in equity, should be brought by some person as next friend.*'' And it is said that any person may volunteer to act as next friend and bring a suit for an insane person, when no committee has been ap- pointed.'*^ In other jurisdictions it is held that a bill cannot be filed by the next friend, unless specially authorized by the court. ^"^ In still other jurisdictions it is held that, independent of statute, an action cannot be maintained by one as next friend of an insane person.*^ Mr. Justice Story says that where per- i- West V. West, 90 Ala. 458, 7 So. 830, quoting with approval Story, Eq. PI. § 65. 43 West V. West, 90 Ala. 458, 7 So. 830, citing Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 24; Lombard v. Morse, 155 Mass. 136, 29 N. B. 205. See Taylor v. Levering, 171 Mass. 303, 50 N. B. 612. " Beach, Mod. Eq. Pr. § 49; Reese v. Reese, 89 Ga. 645, 15 S. B. 846. J^ Beach, Mod. Eq. Pr. § 40; Gray v. Parke, 155 Mass. 433, 29 N. B. 641; Plympton v. Hall, 55 Minn. 22, 56 N. W. 351; Beall v. Smith, 9 Ch. App. 91; Jones v. Lloyd, L. R. 18 Eq. 265; Smith v. Smith, 106 N. C. 498, 11 S. E. 188. 40 Dorsheimer v. Roorback, IS N. J, Eq. 438; Palmer v. Sinnickson, 59 N. J. Eq. 530, 46 Atl. 517. *- Tiffany v. Worthington, 96 Iowa, 560, 65 N. W. 817, citing Coving- ton v. Neftzger, 140 111. 608, 30 N. E. 764, 33 Am. St. Rep. 261. But see Roughan v. Morris, 87 111. App. 642, holding that a suit may be main- (23) § 13 EQUITY PLEADING AND PRACTICE. [Ch. 2 sons are incapable of acting for themselves, although not strictly either idiots or lunatics, the suit may be brought in their name, and the court will authorize some suitable person to carry it on as their next friend, but that in every such case it is in the discretion of the court to allow the suit to proceed or not, and to order a stay of proceedings, or the bill to be taken oif the file, if the suit is deemed improper.** Idiots and lunatics defend a suit by their committees, who are, by an order of court, appointed guardian ad litem for that purpose, as a matter of course, in ordinary circumstances; but if an idiot or lunatic has no committee, or the committee has an interest opposite to that of the person whose property is intrusted to his care, an order may be gi'anted appointing an- other person as guardian ad litem for the purpose of defending the suit.*® It is held in Virginia that it is only where there is no committee, or where there is a conflict of interest between the committee and the lunatic, that it becomes necessary to ap- point a guardian ad litem for the insane defendant.^'' If a per- son is in the condition of an idiot or hmatic, although not so tained by a next friend for the purpose of protecting the estate of a lunatic through a receivership, until a conservator can be appointed to act for him, and distinguishing Covington v. Neftzger, 140 111. 608, 30 N. E. 764, 33 Am. St. Rep. 261. A bill iiled by a volunteer, styling him- self the next friend of an idiot, will, on motion of the defendant, be dis- missed. Dorsheimer v. Roorback, 18 N. J. Eq. 438. In New Jersey, it is held that where a complainant, not an idiot or a lunatic, but aged and feeble minded, is permitted to proceed with his suit until his tes- timony is all produced, before any objections are made for want of proper parties, the bill will not be dismissed, but a nex'f friend will be then appointed. Lamb v. Lamb (N. J. Eq.) 2j Atl. 1009. In the ab- sence of a statute to ;he contrary, a weak and feeble-minded person, of full age, may bring an action in his own name, without a next friend. Calhoun V. Mosley (Ga.) 40 S. E. 714; Menz v. Beebe, 95 Wis. 383, 70 N. W. 468, 60 Am. St. Rep. 120; Chicago & P. R. Co. v. Hunger, 78 111. 300; Faulkner v. McClure, 18 Johns. (N. Y.) 134; Petrie v. Shoemaker, 24 Wend. (N. Y.) 85; Cameron's Committee v. Pottinger, 3 Bibb (Ky.) 11; Reed v. Wilson, 13 Mo. 28. 48 Story, Eq. PI. § 66, citing Wartnaby v. Wartnaby, Jac. 377 ; Mitford, Eq. PI. 30. 19 Story, Eq. PI. § 70; Hewlett v. Wilbraham, 5 Madd. 423. CO Hinton v. Bland's Adm'r, 81 Va. 588. (24) Oh. 2] '^HO MAY SUE AND BE SUED. § 14 found by an inquisition, or if, by reason of age or infirmities, he is reduced to a second childhood, the court will direct a guardian ad litem to be appointed for him to defend a suit against him.^^ § 14, Receivers. Where a receiver is not authorized, either by statute or by the order of the court from which he derives his appointment, to sue in his own name, it has been held that he cannot do so, but must bring the action in the name of the corporation or party in whom the right of action was before the appointment of the receiver. While this was formerly held to be the rule, the doctrine seems to be well settled that courts possess the power to authorize receivers to sue in their own names. ^- It is a general rule that, before suit is brought against a receiver, leave of the court by which he was appointed must be obtained. ^^ The institution of a suit against a receiver in his official ca- pacity, without leave, is a contempt of court.^'* What is the 61 story, Eq. PI. § 70; Mitford, Eq. PI. 103, 104; Wilson v. Grace, 14 Ves. 172; Bearinger v. Pelton, 78 Mich. 109, 43 N. W. 1042; Van Horn v. Hann, 39 N. J. Law, 213. See, also, Stoner v. Riggs (Mich.) 87 N. W. 109; Woerner, Guardianship, p. 66, § 21; King v. Robinson, 33 Me. 120, 54 Am. Dec. 614. It is held in Pennsylvania, as a general rule, that a committee can waive nothing which the law stipulates for security of the party represented, and particularly in that relation to the freehold of the latter. Bennett v. Hayden, 145 Pa. 586, 23 Atl. 255; Wilson v. Bigger, 7 Watts & S. (Pa.) Ill; Jenninsrs v. Bloomfield, 199 Pa. 638, 4 ) Atl. 135. 52 Leonard v. Storrs, 31 Ala. 488; Manlove v. Burger, 38 Ind. 211; King v. Cutts, 24 Wis. 627; Yeager v. Wallace, 44 Pa. 294; Wilson v. Welch, 157 Mass. 77, 31 N. E. 712; Smith v. United States Express Co., 135 111. 279, 25 N. B. 525; State v. Wilmer, 65 Md. 178, 3 Atl. 252. See American Loan & Trust Co. v. Central Vermont R. Co., 84 Fed. 917. Statutes authorizing a receiver to sue in his own name are found in some states. Smith, Receiverships, 161, 163. 63 Texas & P. Ry. Co. v. Cox, 145 U. S. 593; Porter v. Sabin, 149 U. S, 473; Barton v. Barbour, 104 U. S. 126; Parker v. Browning, 8 Paige (N. Y.) 388, 35 Am. Dec. 717; Melendy v. Barbour, 78 Va. 544; Payne v. Baxter, 2 Tenn. Ch. 517; Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804; Earle v. Humphrey, 121 Mich. 518, 80 N. W. 370; Morgan v. Bucki, 30 Misc. Rep. 245, 61 N. Y. Supp. 929; Hollifield V. Wrlghtsville & T. R. Co., 99 Ga. 365, 27 S. E. 715. M Richards v. People. 81 111. 551. § 14 EQUITY PLEADING AND PRACTICE. [Ch. 2 effect of so doing upon the jurisdiction of the court is in dis- pute. In some cases it is held that failure to obtain leave is no bar to the jurisdiction of the court in which the suit is brought, but that the question is one of contempt, not of juris- diction.^'' A contrary doctrine prevails in some jurisdictions, including the federal courts.^® The protection which a court of equity gives to the possession of its receiver will only be ac- corded upon the application of the receiver,^^ and the objection is waived by his appearance, after which a motion to dismiss on that ground will not be entertained.^^ =-Mulcahey v. Strauss, 151 III. 70, 37 N. E. 702; St. Joseph & D. C. R. Co. V. Smitli, 19 Kan. 225; Chautauque County Bank v. Risley, 19 N. Y. 369; Kinney v. Crocker, 18 Wis. 74; Lyman v. Central Vermont R. Co., 59 Vt. 167, 10 Atl. 346; Allen v. Central R. Co., 42 Iowa, 683. 5» Wiswall V. Sampson, 14 How. (U. S.) 52; Barton v. Barbour, 104 U. S. 126. " Mulcahey v. Strauss, 151 111. 70, 37 N. B. 702; Blumenthal v. Brain- erd, 38 Vt. 407. "S Mulcahey v. Strauss, 151 111. 70, 37 N. B. 702; Elkhart Car-Works Co. V. Ellis, 113 Ind. 215, 15 N. E. 249; High, Receivers, § 261. Where the bill fails to state that it was filed by leave o£ court, it is demui-- rable. Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614, 57 N. W. 804. Where a Virginia receiver was sued in the District of Colum- bia, and pleaded that leave had not been obtained to sue him from the Virginia court having appointed him, a demurrer to the plea was over- ruled. Barton v. Barbour, 104 U. S. 126; De Graffenried v. Bruns- wick & A. R, Co., 57 Ga. 22. Receivers Appointed by United States Courts. By Act Cong. March 3, 1887, every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or trans- action of his in carrying on the business connected with such property, without the previous leave of the court in which such receiver or man- ager was appointed; but such suit shall be subject to the general equity jurisdiction of the court in which such receiver or manager was ap- pointed, so far as the same shall be necessary to the ends of justice. This act was amended in 1888. The permission given by the third sec- tion of the act of congress of August 13, 1888, to sue receivers of federal courts for their acts in carrying on the business connected with the property, without leave of the appointing court, gives the right to sue in any court of competent jurisdiction. Louisville Southern R. Co.'s Receiver v. Tucker's Adm'r, 20 Ky. Law Rep. 1303, 49 S. W. 314; Mc- Nulta V. Lockridge, 141 U. S. 327; Texas & P. Ry. Co. v. Johnson, 151 U. S. 81; Central Trust Co. of New York v. Bast Tennessee, V. & G. Ry. (20) Ch. 2] WHO MAY SUE AND BE SUED. § 14 The receiver, being but the creature of the court, has no pow- ers except those conferred upon him by the order of his ap- pointment and the course and practice of the court. He can- not even institute or defend actions except by the authority of the court, and he must show such authority by proper allega- tions in his bill.^^ The court may, however, either in the order Co., 59 Fed. 523. Under this act, receivers over property appointed b/ the United States courts are required to manage or operate the trust property according to the laws of the state in which it is situated, and may be sued in respect to its management or operation in the courts of such state, without the previous leave of the court appointing them, and in such cases a judgment rendered in the state court is conclusive upon the federal court as to the existence and amount of the plaintiff's claim, but the time and manner of its payment are to be controlled by the court under whose orders the receivers act. Reinhart v. Sutton, 58 Kan. 726, 51 Pac. 221; Dillingham v. Hawk, 23 U. S. App. 273, 60 Fed. 494. Such act does not grant power to sue in all cases, without limita- tion; and a complaint which states that a railroad company and its receiver appointed by a United States court wrongfully claim an inter- est in land is not sufficient to bring the action under the provision of such act, no act or transaction of the receiver being involved. Bennett V. Northern Pac. R. Co., 17 Wash. 534, 50 Pac. 496; Swope v. Villard, 61 Fed. 417; Central Trust Co. v. Chattanooga, R. & C. R. Co., 68 Fed. 685. This act does not authorize a suit by a stockholder of a corpo- ration against its receiver and others without leave of court, on a cause of action which accrued before the receiver was appointed, and on which the receiver has refused to sue. Swope v. Villard, 61 Fed. 417. The act was intended to place receivers of railroads upon the same plane with railroad companies, both as respects their liability to be sued for acts done while operating railroads, and as respects the modes of service of process. Eddy v. Lafayette, 4 U. S. App. 247, 49 Fed. 807; Central Trust Co. V. St. Louis, A. & T. Ry. Co., 40 Fed. 426. The federal statute does not authorize the bringing of a suit without leave against a re- ceiver to establish a right to the property placed in his custody adverse to his right thereto. J. 1. Case Plow Works v. Finks, 52 U. S. App. 253, 81 Fed. 529. See, also, on the right to sue federal receivers, Stolze v. Milwaukee & L. W. R. Co., 104 Wis. 47, SO N. W. 68. 50 High, Receivers, §§ 201, 208; Booth v. Clark, 17 How. (U. S.) 331; Davis V. Snead, 33 Grat. (Va.) 705; Battle v. Davis, 66 N. C. 252; Sere ven V. Clark, 48 Ga. 41; Davis v. Ladoga Creamery Co., 128 Ind. Tl't, 27 N. E. 494; Peabody v. New England Water-Works Co., 80 111. App. 461; Coope v. Bowles, 28 How. Pr. (N. Y.) 11; Green v. Winter, 1 Johns. Ch. (N. Y.) 60; Wynn v. Newborough, 3 Brown, Ch. 88. (27) § 14 EQUITY PLEADING AND PRACTICE. [Ch. 2 of appointment or by subsequent order entered in the cause, give the receiver general leave to commence suits.*" A receiver appointed in a foreign jurisdiction cannot, as a strict matter of right, maintain a suit in the courts of another jurisdiction, but, on the principle of comity, he will be permit- ted to sue and defend as a foreign receiver in courts of other states than that in which he is appointed, except where the rights of the citizens of the state or forum are prejudiced there- by, or where it would be in contravention of the jjolicy of the state.®^ lioLathrop v. Knapp, 37 Wis. 307; Parker v. Nickerson, 137 Mass. 487. 01 Booth V. Clark, 17 How. (U. S.) 332; Castleman v. Templeman, 87 Md. 546, 40 Atl. 275; Security Trust Co. v. Dodd, 173 U. S. 624; Iglehart V. Bierce, 36 111. 133; Chicago, M. & St. P. Ry. Co. v. Keokuk Northern Line Packet Co., 108 111. 317; Woodward v. Brooks, 128 111. 222, 20 N. E. 685; Ex parte Norwood, 3 Biss. 504, Fed. Cas. No. 10,364; Le Fevre V. Matthews, 39 App. Div. 232, 57 N. Y. Supp. 129; Lycoming Fire Ins. Co. V. Wright, 55 Vt. 526; Zacher v. Fidelity Trust & Safety- Vault Co., 106 Fed. 593; Gilman v. Ketcham, 84 Wis. 60, 54 N. W. 395, 23 L. R. A. 52. Considerable discussion has been had in the courts concerning the right of a receiver of a corporation appointed by a court of compe- tent jurisdiction in one state to maintain an action in another state for the recovery of a demand due the estate of which he is receiver. In Wigton V. Bosler, 102 Fed. 70, it was held that a receiver of a corpora- tion cannot, as a matter of right, maintain an action in another state for the recovery of a demand due the estate of which he is receiver, and that even if the rule which permits the receiver of a corporation to sue in a foreign jurisdiction, as a matter of comity, be recognized by the federal courts, it will not be extended to a demand for a stockhold- er's liability under an assessment ordered by the court in which the receiver was appointed in proceedings to which the stockholder was not a party. The court cites with approval High, Receivers, §§ 239-241, where it is said: "Upon the question of the territorial extent of a receiver's jurisdiction and powers, for the purpose of instituting ac- tions connected with his receivership, the prevailing doctrine estab- lished by the supreme court of the United States, and sustained by the weight of authority in various states, is that the receiver has no extraterritorial jurisdiction or power of official action, and cannot, as a matter of right, go into a foreign state or jurisdiction, and there in- stitute a suit for the recovery of demands due to the person or estate subject to his receivership. His functions and powers for the purposes of litigation are held to be limited to the courts of the state within which (28) Ch. 2] WHO MAY SUE AND BE SUED. § 15 § 15. Foreign corporations. At common law, the right of foreign corporations to sue in other jurisdictions was recognized as founded on the principles of international justice and comity.®^ Foreign corporations may be sued, provided effective service can be made upon the corporation or its property;^* but courts refuse to entertain jurisdiction over a foreign corporation in cases where the de- he was appointed, and the principles of comity between nations and states which recognize the judicial decisions of one tribunal as conclu- sive in another do not apply to such a case, and will not warrant a receiver in bringing an action in a foreign court or jurisdiction. * * * While, as is thus seen, the courts have generally denied the receiver's extraterritorial right of action as a question of strict right, It has frequently been recognized as a matter of comity. Thus, it has been held that receivers of a foreign corporation, appointed in other states, might sue in New York, in their official capacity, in cases where no detriment would result to citizens of the latter state; the privilege of thus suing being regarded as based rather upon courtesy than upon strict right, and the courts declining to extend their comity so far as to work detriment to citizens of their own state who have been induced to give credit to the foreign corporation." See, however, Parker v. Stoughton Mill Co., 91 Wis. 174, 64 N. W. 751. See, also, on this ques- tion. Hale V. Harden, 95 Fed. 747; Hurd v. City of Elizabeth, 41 N. J. Law, 1; Rogers v. Riley, 80 Fed. 759; Runk v. St. John, 29 Barb. (N. Y.) 585; Hale v. Tyler, 104 Fed. 757; Barley v. Giddings, 15 App. D. C. 427; Commercial Nat. Bank of Columbus v. Motherwell Iron & Steel Co., 95 Tenn. 172, 31 S. W. 1002, 29 L. R. A. 164. It is held that a receiver ap- pointed in one jurisdiction may sue in another to recover real estate, where he claims by a conveyance to him as such receiver, and does not depend alone upon the decree of appointment. Oliver v. Clarke, 106 Fed. 402. See, also, Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, holding that, if a receiver has a right of property as assignee, he may maintain a suit in a foreign jurisdiction. It is held in Castleman v. Templeman, 87 Md. 546, 40 Atl. 275, that, when a receiver appointed by the court in one state desires to sue in a court of another state, it would be proper practice for him to file a petition setting forth such facts as are suffi- cient to enable him to do so in the latter court, and asking permission to sue. 62 Story, Eq. PI. § 55; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Bank of Washtenaw v. Montgomery, 2 Scam. (111.) 422; Hahnemannian Life Ins. Co. v. Beebe, 48 111. 87; Rhodes v. Missouri Savings & Loan Co., 173 111. 621, 50 N. E. 998; Cook, Corp. § 757; Walters v. Whitlock, 9 Fla. 86. 63 Cook, Corp. §§ 757, 758; Libbey v. Hodgdon, 9 N. H. 394. (20) § 15 EQUITY PLEADING AND PRACTICE. [Ch. 2 cree of the court cannot be enforced.®"* A state may impose such terms, conditions, and restrictions upon foreign corpora- tions, other than corporations engaged in interstate commerce, as it may see fit, but such restrictions by a state on foreign cor- porations must not conflict with provisions of the federal con- stitution.®^ Statutes are found, in many jurisdictions, provid- ing that f oreigTi corporations shall not do business in the state un- til they have complied with certain requirements of the statute. The effect of such statutes has given rise to much litigation. By some of them it is provided that a foreign corporation shall duly execute a power of attorney appointing an agent upon whom service of process may be made, or shall obtain a cer- tificate from a state officer; and the corporation is usually for- bidden to contract or sue in the state before compliance with such provisions. In some states, contracts made before comply- ing with the requirements are held to be void.®® In other states, it is held that the right of action is merely suspended until the corporation has complied with the law.®^ In other states, it is held that such statutory provisions impose merely a penalty, and do not affect the validity of the contract or the right to sue.®* MCook, Corp. § 757; Williston v. Michigan Soutliern & N. I. R. Co., 13 Allen (Mass.) 400; Howell v. Chicago & N. W. Ry. Co., 51 Barb. (N. Y.) 378. 66 Cook, Corp. §§ 696, 700; Bank of Augusta v. Earle, 13 Pet. (U. S.) 619; Ducat v. City of Chicago, 48 111. 172; Williams v. Creswell, 51 Miss. 817; Paul v. Virginia, 8 Wall. (U. S.) 168; Dundee Mortgage & Trust Inv. Co. V. Nixon, 95 Ala. 318, 10 So. 311; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941; Hart v. Livermore Foundry & Machine Co., 72 Miss. 809, 17 So. 769; Walker v. City of Springueld, 94 111. 364; Pem- bina Consolidated Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181. Corporations are not citizens entitled to the privileges and immunities of citizens of the several states, within the meaning of article 4, § 2, of the constitution of the United States. Cook, Corp. §§ 697-700, and authorities there cited; Paul v. Virginia, 8 Wall. (U. S.) 168; Pierce v. Crompton, 13 R. I. 312. so Cook, Corp. § 700; In re Comstock, 3 Sawy. 218, Fed. Cas. No. 3,078. 67 Cook, Corp. § 700; Walter A. Wood Mowing & Reaping Machine Co. v. Caldwell, 54 Ind. 270. OS Cook, Corp. § 700; Wright v. Lee, 4 S. D. 237, 55 N. W. 931. (30) Ch. 2] WHO MAY SUE AND BE SUED. ^ 17 It is held that, where a state statiite provides that contracts made by foreign corporations shall not be enforced in the courts of the state before compliance with certain requirements of the statute, the prohibition will not be extended to suits brought in the federal courts, the contract not being void.*® § 16. Foreign guardians, conservators, committees, etc. A guardian cannot sue in a court, even of the United States, held in a state other than that in which he was appointed, ex- cept as authorized by the laws of the other state.''''' § 17. Foreign executors and administrators. At common law, no suit, either at law or in equity, can be maintained by or against the executor or administrator in his official capacity, out of the country or state from which he de- rives his authority, and to which he is alone amenable.^^ If 69 Cook, Corp. § 700; Sullivan v. Beck, 79 Fed. 200; Barling v. Bank of British Nortli America, 50 Fed. 260. It is not within the scope of this work to treat of the rights of foreign corporations to sue where they have failed to comply with the statutes of the respective states. This question is fully considered in a recent work, Cook, Corp. §§ 696- 700. See, also, People v. Fidelity & Casualty Co. of New York, 153 111. 25, 38 N. E. 752; Aultman, Miller & Co. v. Holder, 68 Fed. 467; Dahl V. Montana Copper Co., 132 U. S. 264; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Gilchrist v. Helena, H. S. & S. R. Co., 47 Fed. 593; Hold- er V. Aultman, 169 U. S. 81. -''Morgan v. Potter, 157 U. S. 195; Lamar v. Micou, 112 U. S. 452; Hoyt V. Sprague, 103 U. S. 613; Smith v. Madden, 78 Fed. 833. Provi- sion is made hy statute in some states for the collection of the ward's property, and the sale of real estate belonging to the ward, by non- resident guardians, upon compliance with certain conditions. Such a foreign guardian, suing under such statute, must allege In his bill compliance with the provisions of such statute. Grist v. Forehand, 36 Miss. 69; Vincent v. Starks, 45 Wis. 458; Parrish v. Hatchett, 15 Ky. Law Rep. 847. It is held that the guardian of a nonresident ward may be sued in equity for the settlement of his account in the state of his residence, he having a part of the fund there. Rinker v. Streit, 33 Grat. (Va.) 663; Tunstall v. Pollard's Adm'r, 11 Leigh (Va.) 1. 71 Story, Confl. Laws, § 504a; Banning v. Gotshall, 62 Ohio St. 210, 56 N. B. 1030; Flandrow v. Hammond, 13 App. Div. 325, 43 N. Y. Supp. 145; Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457; Dixon's Ex'rs v. (31) § 17 EQUITY PLEADING AND PRACTICE. [Ch. 2 a foreign administrator wishes to reach property or collect debts belonging to the estate in a foreign country, he must there ob- tain letters of administration, and give such security and be- come subject to stich regulations as its laws prescribe. So, if a creditor wishes to bring a suit in order to satisfy his debt out of the property in another jurisdiction, administration must there be first obtained.^^ In most jurisdictions, statutes are found permitting foreign personal representatives to sue in the courts of such jurisdictions on compliance with statutory pro- visions. '^^ Suits brought by foreign administrators are subject Ramsay's Ex'rs, 3 Cranch (U. S.) 319; Johnson v. Powers, 139 U. S. 156; Smith v. Madden, 78 Fed. 833; Vaughan v. Northup, 15 Pet. (U. S.) 1; Judy v. Kelley, 11 111. 211, 50 Am. Dec. 455; Durle v. Blauvelt, 49 N. J. Law, 114, 6 Atl. 312; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Magraw v. Irwin, 87 Pa. St. 142; State v. Fulton (Tenn. Ch. App.) 49 S. W. 297. See Lawrence v. Nelson, 143 U. S. 215. '-Story, Eq. PI. § 179; Judy v. Kelley, 11 111. 214. "In his official capacity, he can neither sue nor be sued out of the country from which he derives his authority, and to which he is alone amenable. * * • There are a few cases in this country to the effect that a foreign execu- tor may be sued in another jurisdiction, and be there made liable to the extent of the assets he may have with him, but the cases go no further than to sustain the action for the purpose of subjecting such assets to the payment of the particular debt. Campbell v. Tousey, 7 Cow. (N. Y.) 64; Swearinger's Ex'r v. Pendleton's Ex'x, 4 Serg. & R. (Pa.) 389; Evans v. Tatem, 9 Serg. & R. (Pa.) 252; Bryan v. McGee, 2 Wash. C. C. 337, Fed. Cas. No. 2,066. It may be doubted whether these de- cisions can be supported on principle or authority." Judy v. Kelley, 11 111. 214. 73 For construction of some of such statutory provisions, see Deck- er V. Patton, 120 III. 464, 11 N. E. 897; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Vaughan v. Northup, 15 Pet. (U. S.) 5; Smith v. Mad- den, 78 Fed. 833. It is held in Pennsylvania that a foreign executor within the jurisdiction of its courts is liable to a suit by a resident creditor of his decedent, unlesis it trenches on the jurisdiction of an- other court already attached, or would expose the parties subject to such jurisdiction to inequitable burdens. Laughlin v. Solomon, 180 Pa. 177, 36 Atl. 704. See Evans v. Tatem, 9 Serg. & R. (Pa.) 252; Swearinger's Ex'r v. Pendleton's Ex'x, 4 Serg. & R. (Pa.) 389; Bryan V. McGee, 2 Wash. C. C. 337, Fed. Cas. No. 2,066; Brodie v. Bickley, 2 Rawle (Pa.) 431. Where the local statute authorizes a suit by a foreign representative, subsequent compliance with the law in the state where the suit is pending, at any time before the hearing, is held in (32) Ch. 2] WHO MAY SUE AND BE SUED. § 17 to the same rules of pleading as actions by domestic adminis- trators.'^'' many states to cure failure to so comply, and relates back so as to make the bill good from the beginning. Hodges v. Kimball, 91 Fed. 845; Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 49; Swatzel v. Arnold, Woolw. 383, Fed. Cas. No. 13,682; Gidding's Ex'rs v. Green, 48 Fed. 489. 7* Collins V. Ayers, 13 111. 358. (33) Equity— 3 CHAPTER III. PARTIES TO SUITS IN EQUITY. § 18. Distinction between parties at law and in equity. The doctrine as to parties constitutes one of the most striking diilerences between the proceedings in courts of law and the proceedings in courts of ec|nity. Courts of law usually require no more than that the parties directly and immediately inter- ested in the subject-matter of the suit, and whose interests are of a strictly legal nature, shall be parties to it. At law, a dis- puted issue alone is contested. The immediate disputants alone are bound by the decision, and they alone are proper parties to the action. All other persons who have merely an equitable or remote interest are not only not required to be parlies, but are excluded from being made parties, and, if any are improperly joined, the faidt may be fatal to the suit.^ In equity, how- ever, a decree is asked, and not a decision only; and it is there- fore requisite that all persons should be before the court whose interests may be affected by the proposed decree, or whose con- currence is necessary to a complete arrangement..^ Thus, for example, at law, the executor and the heir cannot join or be joined in an action, although each may have an interest in the controversy, but in equity they may both join and be joined, and both are often necessary and proper parties.''' § 19. General rule on the subject of parties. The (juestion of who are the proper and necessary parties to a bill ill chancery is a subject of great practical importance, 1 Story, Eq. PI. § 76. 2 Story, Eq. PI. § 76a; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Foster, Fed. Pr. (3d Ed.) § 42. s Story, Eq. PI. § 76; Knight v. Knight, 3- P. Wms. 333. (34) Ch. 3] PARTIES TO SUITS IN EQUITY. g 19 and of considerable difficulty in a j^reat variety of cases.'* It is a general rule in equity that all persons materially interest- ed, either legally or beneficially, in the subject-matter of a suit, are to be made parties to it, either as complainants or as de- fendants, however numerous they may be, so that there may be a complete decree which shall bind them all.''' The reason for the rule is founded on the principle that no man's rights shall be finally disposed of in a court of justice unless he him- self is present, or at least unless he has had a full opportunity to appear and vindicate his rights, and also upon the principle that, Avhen a decree is made u})on any particular subject-mat- ter, the rights of all persons whose interests are immediately connected with the decision, and affected by it, shall be provid- ed for, s(j far as they reasonably may be ;*' in other words, so ■1 Story, Eq. PI. § 72. It is not within the scope of the present work to treat exhaustively of the subject of parties. There are three works treating fully of this subject: Calvert on Parties, Edwards on Parties, and Barbour on Parties. Mr. Justice Story, in his great work on Equity Pleading, and Mr. Daniell, in his work on Pleading and Prac- tice in Chancery, also devote careful attention and much space to the subject. ■■■' Story, Eq. PL § 72, quoted approvingly in Beach, Mod. Eq. Pr. § 54, and in Gregory v. Stetson, 133 U. S. 586; Jessup v. Illinois Cent. R. Co., 36 Fed. 735. For other definitions, see Mitford, Eq. PI. 164; Calvert, Par- ties, p. 11; Knight v. Knight, 3 P. Wms. 333; Cockburn v. Thompson, 16 Ves. 321; Caldwell v. Taggart, 4 Pet. (U. S.) 202; Mandeville v. Riggs, 2 Pet. (U. S.) 482: Robinson v. Howe. 35 Fla. 73, 17 So. 368; Whitney v. Mayo, 15 111. 251; Hallett v. Hallett, 2 Paige (N. Y.) 15. It has been said that it is not all persons who have an interest in the subject-matter of the suit, but, in general, those only who have an in- terest in the object of the suit, who are ordinarily required to be made parties. Story, Eq. Pi. § 72; Calvert, Parties, 5, 6, 10, 11. Thus, it has been said: "The general doctrine in relation to parties in equity is often stated to be that all persons interested in the subject-matter of the suit should be made plaintiffs or defendants. This statement is too broad. It would be more accurate to say persons interested in the object of the suit must be made parties; that is^ persons who are parties to the interest involved in the issue, and who must necessarily be affected by the decree." Michigan State Bank v. Gardner, 3 Gray (Mass.) 305; Fletcher v. Newark Telephone Co., 55 N. J. Eq. 47, 35 Atl. 903. 6 Mitford, Eq. PI. 164; Story, Eq. PI. § 72; Knight v. Knight, 3 P. (-35) § 20 EQUITY PLEADING AND PRACTICE. [Cli. 3 that the decree shall terminate, and not instigate, litigation/ The truth is that the general rule in relation to jDartics does not sqem to be founded on any positive and uniform principle, and therefore it does not admit of being expounded by the ap- plication of any universal theorem as a test. It is a rule found- ed partly in artificial reasoning, partly in considerations of convenience, partly in the solicitiide of courts of equity to sup- press multifarious litigation, and partly in the dictates of nat- ural justice, that the rights of persons ought not to be affected in any suit without giving them an opportunity to defend them.* § 20, Converse of general rule true. The converse of the general rule is also well established. ISTo person should be made a party complainant in whom there ex- ists no interest." An orator without any interest in the sub- ject-matter of the bill is not entitled to a decree.^'^ It is nec- essary that he should have an interest in the subject of the suit, or a right to the thing sought.^-' So, also, no one need be made a party defendant from whom nothing is demanded,^^ nor against whom, if brought to a hearing, the complainant can have no decree,^" nor who would not be at liberty to answer and contest the right to the relief prayed.^* Thus, a residuary leg- atee need not be made a party to a bill by a legatee against an Wms. 331; West v. Randall, 2 Mason, 190, Fed. Cas. No. 17,424; Howard V. Corey, 126 Ala. 283, 28 So. 682. T Caldwell v. Taggart, 4 Pet. (U. S.) 190; Austin v. Richardson, 1 Grat. (Va.) 316. s Story, Eq. PI. § 76c, quoted with approval in Pitzgibbon v. Barry, 78 Va. 755, and Union Mill. & Min. Co. v. Dangberg, 81 Fed. 73. Story, Eq. PI. §§ 225-235; Kerr v. Watts, 6 Wheat. {U. S.) 550; Bowles V. McAllen, 16 111. 30. 10 Hadlock v. Williams, 10 Vt. 570. " Gaston v. Plum, 14 Conn. 344. i-Kerr v. Watts^ 6 Wheat. (U. S.) 550; Linnell y. Lyford, 72 Me. 280. i:i Story, Eq. PI. § 231; Mitford, Eq. PI. 160; Todd v. Sterrett's Lega- tees, 6 J. J. Marsh. (Ky.) 425. " Lee V. Colston, 5 T. B. Mon. (Ky.) 238. (36) Ch. 3] PARTIES TO SUITS IN EQUITY. J^ 21 executor.^ ^ The vendor's mortgagee is not a proper party to a suit to rescind a contract of sale, for, as the land is always sub- ject to his claim, he is not concerned.^® § 21. Exceptions to the general rule in regard to parties. The general rule in relation to parties is not inflexible.-'^ Subject to certain liinitations, it is a rule of discretion, rather thau of absolute right,^* and may be dispensed with in cer- tain cases when it becomes extremely difficult or inconvenient, but not where the rights of persons are so inseparably connect- ed with the claims of parties litigant that no decree can be made without impairing the rights of the former.^ ^ It follows from the fact that the general rule is open to exceptions, limitations, and qualifications, the nature and extent of which are not, and cannot, independently of jiidicial decisions, be always clearly defined, ^° that it is important to ascertain what are the admit- ted exceptions to the general rule, and the foundation thereof; for when such exceptions, and the grounds thereof, are under- stood, they are valuable in affording aid in applying the rule and the exceptions to new cases when they arise.^-' Exceptions to the rule may be divided into the following heads : (1) An exception founded upon the utter impracticability of making the new j^roper or necessary parties, resulting: (a) When such new parties are without the jurisdiction of the court, and when, consequently, they cannot be reached by the process of the court; (b) where the personal representative of a deceased person is a necessary party, and it is charged in the bill that no such representative is in existence; (c) if the per- 15 Todd V. Sterrett's Legatees, 6 J. J. Marsh. (Ky.) 425; De GoUs v. Ward, 3 P. Wms. 310, note 1; Lawson v. Barker, 1 Brown, Ch. 303. 16 Orendorff v. Tallman, 90 Ala. 441, 7 So. 821. 1' Webster v. French, 11 111. 254. IS Birdsong v. Birdsong, 2 Head (Tenn.) 289; Elmendort v. Taylor, 10 Wheat. (U. S.) 152; Wiser v. Blachly, 1 Johns. Ch. (N. Y.) 437. 19 Hallett V. Hallett, 2 Paige (N. Y.) 15. -'" Story, Eq. PI. § 76c; Calvert, Parties, pp. 1-11. =1 Story, Eq. PI. § 76c. (37) § 22 EQUITY PLEADING AND PRACTICE. [Ch. 3 sons who are proper parties are unknown to the complainant, and the fact is so charged in the bill, and the bill seeks a dis- covery of those parties for the purpose of bringing them before the court. (2) Where the parties are exceedingly numerous, and it would be impracticable to join them without almost intermi- nable delays and other inconveniences, which would obstruct and probably defeat the purposes of justice, and a decree can be made without injury to the persons not actually before the court, — under which head of exceptions may be classed: (a) Where the question is one of a common or general interest, and one or more sue or defend for the benciit of the Avhole; (b) where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presiuned to represent the rights and interests of the whole ; (c) where the parties are very numerous, and, although they have or may have separate or distinct interests, yet it is imprac- ticable to bring them all before the court. (3) Persons whose interests are very small. (4) Persons with interests created to oust jurisdiction. (5) Persons disclaiming all interest in the controversy, or against whom rights are waived, or who consent to the decree. Each of these headings, and the subdivisions thereof, will now be considered. § 22. (la) Parties without the jurisdiction. When new parties are without the jurisdiction of the court, and consequently cannot be reached by the process of the court, to require such persons to be made parties would be equivalent to a dismissal of the suit, and amount to a denial of justice. Therefore, when persons who ought to be parties are out of lhe jurisdiction of the court, if the fact is stated in the bill, and admitted by the answer, or proved, if denied, at the hearing, such fact constitutes a sufficient ground for dispensing with their being made parties, and the court will proceed to a de- cree without them. Thus, as a rule, to a bill against a part- (38) Ch. 3] PARTIES TO SUITS IN EQUITY. 8 22 nership, all the partners must be mdde parties; but if one of the partners be resident in a foreign country, so that he cannot be brought before the court, and the fact is so charged in the bill, the court will ordinarily proceed to make a decree against the partners who are within the jurisdiction, provided it can be done without manifest prejudice to the absent partner. ^^ This ground of exception is peculiarly applicable to suits in equity in the federal courts, which can, in general, be main- tained only by and against citizens of different states. In such courts it is a general rule to dispense, if consistently with the merits of the case it can be done, with all parties over whom the court would not possess jurisdiction.-^ Persons who are out of the jurisdiction, who are ordinarily proper and neces- sary parties, can be dispensed with only when their interests will not be prejudiced by the decree, and when they are not indispensable to the just ascertainment of the merits of the case before the court.^'' Under the English practice, the bill should not only allege that the person is out of the jurisdiction, but should pray process against him, so that he may be amenable to the process of the court, if he should come -within the juris- diction.- ° If the persons who are out of the jurisdiction are merely passive objects of the judgment of the court, or their rights are merely incidental to those of the parties before the court, then they may be dispensed with ; but if they are to be ac- tive in the performance or execution of the decree, or if they 22 Story, Eq. PI. § 78; Mitlord, Bq. PI. 164; Cooper, Eg. PI. 35; Carey V. Hoxey, 11 Ga. 645; Gregory v. Stetson, 133 U. S. 579; Lawrence v. Rokes, 53 Me. 110. 23 Story, Eq. PI. § 79; Hazard v. Durant, 19 Fed. 471; Poster, Fed. Pr. (3d Ed.) § 50; Lake St. Elevated R. Co. v. Ziegler, 99 Fed. 114; Shingleur v. Jenkins, 111 Fed. 452; Shields v. Barrow, 17 How. (U. S.) 130; Cleveland Telegraph Co. v. Stone, 105 Fed. 795. See Rev. St. U. S. § 737, which is declaratory of this doctrine. 24 Story, Eq. PI. § 81; California v. Southern Pac. R. Co., 157 U. S. 229; Gregory v. Stetson, 133 U. S. 579; Shingleur v. Jenkins, 111 Fed. 452. 2s Story, Eq. PI. § 80; Mitford, Eq. PL 165; Munoz v. De xastel, 1 Beav. 109. See. also. Haddock v. Thomlinson, 2 Sim. & S. 219. § 24 EQUITY PLEADING AND PRACTICE. [Ch. 3 have rights wholly distinct from those of the other parties, or if the decree ought to be pursued against theni, then the court can- not properly j^i'ocecd to a determination of the whole cause with- out their being made parties."" The absent party cannot be compelled to do any act, but if the disposition of the property in controversy is in the power of the other parties, the court may act, upon and through them, upon that proport_y.^' § 23. (lb) Omission of personal representative. Where a personal representative of a deceased person is a necessary party, but it is alleged in the bill that no such repre- sentative is in existence, or that the representation is in litiga- tion in some appropriate tribunal, the court will retain the bill, notwithstanding the want of parties, and proceed to a decree, if it can be done wilhout prejudice, and, if not, then it will postpone the cause until the ]")roper parties can be made.^'^ § 24. (Ic) Where persons are unknown. If the persons who ai'e jiroper parties are unknown to tha complainant, and the fact is so charged in the bill, and the bill seeks a discovery of those parties, for the purpose of bring- ing them before the court, the objection of want of parties will not be allowed to prevail."^ Where it is impossible to join as parties, or to ascertain tlie names of, all the members of a =0 Story, Bq. PI. § 81; Mltford, Eq. PI. 31, 165; Meux v. Maltby, 2 Swanst. 277. =T Story, Eq. PI. § 87; Smith v. Hibernian Mine Co., 1 Schoales & L. 238. 28 Story, Bq. PI. § 91; Mitford, Bq. Pi. 177; Cooper, Eq. PI. 35; Pos- ter, Fed. Pr. {3d Ed.) § 58; Beacli, Mod. Eq. Pr. § 62; Humphreys v. Humphreys, 3 P. Wms. 349; Jones v. Frost, 3 Madd. 1; Plunket v. Pen- son, 2 Atk. 51. See, however. Read v. Bennett, 55 N. J. Eq. 587, 37 Atl. 75. =» Mitford, Eq. Pi. 180; Story, Eq. PL § 92; Fenn v. Craig, 3 Younge & C. Exch. 216; Heath v. Percival, 1 P. Wms. 682; Alger v. Anderson, 78 Fed. 729. (AO) Ch. 3] PARTIES TO SUITS IN EQUITY. jj 25 church organization, a suit by the organization to enforce a trust may proceed without making all such members parties.^'' § 25. (2) Persons exceedingly numerous — In general. Another exception to the general rule as to parties is where they are exceedingly numerous, and it would be impracticable to join them without almost "interminable delays and other in- conveniences which would obstruct, and probably defeat, the purposes of justice. lu such cases the court will not insist upon their being made parties, but will dispense with them, and proceed to a decree, if it can be done without injury to the fjcrsons not actually before the court. In all cases gov- erned by the exception, it should be alleged in the bill, unless it is otherwise apparent upon its face, that the parties are too nvimerous to make it practicable, even if known, to prosecute the suit if all are made parties.''^ Thus, where the stock of a • 30 Whitney v. Mayo, 15 111. 251. Statutory provisions are found in some states, authorizing persons whose names are unknown to be made parties to proceedings by the names and description of "unknown owners," or some similar designation. Section 7 of the Illinois chancery act, which provides that in suits in chancery and suits to obtain title lo lands, if there be persons in- tei^ested in the same whose names are unknown, they may be made parties by the name and description of "unknown owners," must be fairly and reasonably complied with, and not evaded by making a known person a party under such description. A complainant know- ing the parties in interest, and adopting the mode authorized by this provision, is guilty of a fraud on the law and on the parties in interest thus described, against which the courts will relieve. V/ellington v. Heermans, 110 111. 564. See, also, Seymour v. Edwards, 31 111. App. 50. Where a bill alleges that the heirs of a deceased woman are un- known, and makes them defendants as such, and it appears from the exhibits and proofs that the husband of such deceased woman is her heir, he becomes a necessary party, and must be brought before the court. Taylor v. Bate, 4 T. B. Mon. (Ky.) 267. 31 Story, Eq, PI. §§ 94, 95; West v. Randall, 2 Mason. 181, Fed. Cas. No. 17,424; Von Schmidt v. Huntington, 1 Cal. 55; Eller v. Bergling, 3 MacArthur (D. C.) 189; Carey v. Hoxey, 11 Ga. 645; Smith v. Rotan, 44 111. 506; Hills v. Putnam, 152 Mass. 123, 25 N. E. 40; Boisgerard v. Wall, Smedes & M. Ch. (Miss.) 404; Whitney v. Mayo, 15 111. 251. § 26 EQUITY PLEADING AND PRACTICE. [Ch. 3 joint-stock company was divided into money shares and labor shares, and certain holders of the latter class of shares brought suit against certain holders of the money shares, praying, in effect, for a dissolution of the company, and distribution of its effects, and the whole of neither class of stockholders were made parties, it was held that, the stockholders being numerous, and it being difficijlt, if not impracticable, to bring them all into court, sufKcieif-^ parties were before the court to authorize it to adjudicate the rights of all, and dissolve the company, and dis- tribute its assets.^^ § 26. (2a) One suing for all, where question is one of common or general interest. It is a well-established rule in equity that one or more per- sons having an interest in common with others may sue in equity for themselves, and on behalf of such others, to establish the common rights of all, or may defend for the benefit of the Avhole.^^ Thus, a few creditors may maintain a suit on be- half of themselves and all other creditors of a deceased debtor, against his proper representative, for an account and applica- tion of his estate, real as well as personal, in payment of their demands ; but a few creditors will not be permitted to bring a bill for an account and administration of the assets, without saying in the bill that it is brought on behalf of themselves and all the rest of the creditors.'*'* Where a suit is brought to en- force subscriptions to the capital stock of a corporation, as part of a trust fund for the benefit of the creditors of such corpora- 32 Von Schmidt v. Huntington, 1 Cal. 55. For practice in the federal court, see Equity Rule tJ. S. 48, relative to suits where there are Nu- merous parties. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598. 33 Story, Bq. PI. § 97; Whitney v. Mayo, 15 111. 251; Smith v. Sv/orm- stedt, 16 How. (U. S.) 2S8; New London Bank v. Lee. 11 Conn. 112, 27 Am. Dec. 713; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424; Vernon v. Reynolds, 20 R. I. 552, 40 Atl. 419; Smith v. Bank of New England, 69 N. H. 254, 45 All. 1082. siMitford, Eq. PL 166; Story, Bq. PI. § 99; Leigh v. Thomas, 2 Ves. Sr. 312; Brown v. Ricketts, 3 Johns. Ch. (N. Y.) 553. (42) Ch. 3] PARTIES TO SUITS IN EQUITY. § 27 tion, the bill must be framed so as to be for tbe benefit of all the creditors entitled to such fund.^' A legatee — at least, if not a residuary legatee — is permitted to sue the personal rep- resentative of the testator, on behalf of himself and all other legatees, in order to secure a settlement of the accounts of his administration, and a payment of all the legatees.^® While one or more persons will be permitted, in certain cases, to represent all who have similar interests, yet it must appear that the relief soiight by him who sues is in its nature beneficial to all those whom he undertakes to represent, and where it does not so appear the bill will not be entertained.^^ § 27. (2b) Parties forming a voluntary association. A class of cases constituting an exception to the general rule is where the parties form a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole. In such cases the persons interested are commonly numerous, and any attempt to unite them all in the suit would be, even if practicable, exceedingly inconvenient. Under such circum- stances, the court will allow a bill to be brought by some of the parties on behalf of themselves and all the others, taking 3-. Handley v. Stutz, 137 U. S. 366; First Nat. Bank of Sioux City v. Peavey, 75 Fed. 154; Hornor v. Henning, 93 U. S. 228. 30 Story, Eq. PI. § 104; Hallett v. Hallett, 2 Paige (N. Y.) 20. 3' Hill V. Kensington Com'rs, 1 Pars. Sel. Eq. Cas. (Pa.) 501; Attorney General v. Heelis, 2 Sim. & S. 67; Jones v. Del Rio, Turn. & R. 297. Per- sons, neither partners nor co-contractors, engaged in making street improvements under several and distinct contracts with a city, are not a class of persons having a common interest in the subject of street improvements, concerning which any one or more may sue in equity for the whole. Baker v. Portland, 5 Sawy. 566, Fed. Cas. No. 777; Yeaton v. Lenox, 8 Pet. (U. S.) 126. It is held in New Hampshire that where a bill is filed by a complainant on behalf of himself and others, similarly situated, who may come in and join as complainants, the de- fendant may have an order that all such persons failing to appear on proper notice shall be barred from participating in the fund, or in any damages recoverable, or from thereafter maintaining any suit upon the same ground. Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082. (4;]) § 27 EQUITY PLEADING AND PRACTICE. [Ch. 3 care that there shall be a due representation of all substantial interests before the court. Such a bill must be brought on be- half of all the parties in interest, for, if it be brought for the complainants alone, it will not be sustained by the court, for want of proper parties.^* Thus, where a bill was brought by some shareholders in a joint-stock company, the stock of which was divided into six thousand shares, on behalf of all the share- holders, to compel the directors of the company to refund mon- eys improperly withdrawn by them from the treasury of the company, and applied to their own use, upon an objection being taken for the want of proper parties, the court overruled it, holding that justice would be unattainable if all the sharehold- ers were required to be made parties to the suit, and that a. separate bill by each shareholder to recover his proportion of the money would produce enormous inconvenience and multi- ply litigation.^' Where the members of an unincorporated so- ciety are numerous, an action may be brought for it in the name« of a portion of the members, in behalf of themselves and all others, or in the name of a committee appointed by the society for that purpose.*" A like doctrine to that above stated obtains where there are many persons defendant belonging to a voluntary association against whom a suit is brought.''^ ■ Thus, it was held that it i« not necessary to make parties to a suit against a voluntary asso- ciation all its members scattered throughout the United States 3s Story, Eq. PI. § 107; Whitney v. Mayo, 15 111. 255; Guilfoil v. Ar- thur, 158 111. 600, 41 N. B. 1009; Baldwin v. Lawrence, 2 Sim. & S. 18; Chancey v. May, Pinch, Prec. Ch. 592; Pearce v. Piper, 17 Ves. 1; Gray V. Chaplin, 2 Sim. & S. 267; Attorney General v. Heelis, 2 Sim. & S. 67; Bromley v. Smith, 1 Sim. 8; Jones v. Del Rio, Turn. & R. 300; Small V. Attwood, Younge, 407. See American Steel & Wire Co. t. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598. 39 Story, Eq. PI. § 109; Hichens v. Congreve, 4 Russ. 562. 40 Guilfoil V. Arthur, 158 111. 600, 41 N. E. 1009; Beatty v. Kurtz, 2 Pet. (U. S.) 584. 41 Story, Eq. PI. § 116; Adair v. New River Co., 11 Ves. 444; Cullen V. Queensberry, 1 Brown, Ch. 101; Meux v. Maltby, 2 Swanst. 284; Cousins V. Smith. 13 Ves. 544; Boisgerard v. Wall, Smedes & M. Ch. (Miss.) 404. (44) Ch. 3] PARTIES TO SUITS IN EQUITY. i, 28 and Canada ; but service upon a part, acting for other members as well as for themselves, is sufEcient.''^ It is held that in a suit to restrain an unlawful combination, acting as an unincor- porated association, it is sufficient that the association, together with a large number of its members, as individuals, and officers of the association, are made parties defendant.*^ § 28. (2c) Numerous parties having^ separate and distinct in- terests. Another class of cases constituting an exception to the gen- eral rule as to parties is where the parties are very numerous, and, although they have or may have separate and distinct in- terests, yet it is impracticable to bring them all before the court, and on this account they are dispensed with. In this class of cases there is usually a privity of interest between the parties, but such privity is not the foundation of the exception. In all of these cases, however, there always exists a common interest or common right which the bill seeks to establish and enforce, or a general claim or privilege which it seeks to establish, or to narrow, or take away. Under such circumstances, the interests of persons not actual parties to the siiit may be in some measure affected by the decree, but the suit is nevertheless permitted to proceed without them, in order to prevent a total failure of jus- tice.** In m.ost, if not in all, cases of this sort, the decree ob- tained upon such a bill will ordinarily be held binding upon all 42 Pitzpatrick v. Paitter, 160 111. 282, 43 N. E. 392. *3 United States v. Coal Dealers' Ass'n of California, 85 Fed. 252. But in American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598, it is held that voluntary associations cannot be sued as such, and a bill against such associations by name, which also joins with them as defendants, in its caption, a large num- ber of individuals, but which contains no allegation showing that such individuals compose or are members of such associations, is entirely defective as against the associations. « Story, Eq. PI. § 120; Mitford, Eq. PI. 168 et sea.; Anonymous, 1 Ch. Cas. 269; Attorney General v. Wyburgh, 1 P. Wms. 599; City of York V. Pilkington, 1 Atk. 282; Wood v. Dummer, 3 Mason, 308, Fed. Cas. No. 17,944; Bailey v. Tillinghast, 99 Fed. 801; Smith v. Bank of New England, 69 N. H. 254, 45 Atl. 1082. (•45) § 28 EQUITY PLEADING AND PRACTICE. [Ch. 3 other persons standing in the same predicament, the court taking care that sufficient persons are before it honestly, fairly, and ful- ly to ascertain and try the general right in contest.*' Thus, where there is one general right to demand service from the inhabitants of a large district, as, for example, a right to demand that all the individuals of a large district should grind the corn for their subsistence at a particular mill, the mill owner may sue a few in equity to establish his right against a]£^ but so manj must be joined as will fairly and hemestlj try the legal right.*^ Where a bill sought to quiet the complainants' right of fishery in the Hiver Ouse, of which the complainants claimed the sole fishery for a large tract, against the defendants, who, as the bill sug- gested, claimed several rights, either as lords of manors or as occupiers of the adjacent land, and also for a discovery, and an account of fish which they had taken, it was urged that there was no privity between the defendants, but that the bill treated them as distinct trespassers, and that there was no general right to be established against them. The court, however, sustained the bill, on the ground that there was a general right of a sole fishery, asserted by the complainants against all the defendants, and the defendants were not precluded from setting iip distinct exemptions and their distinct rights in their defense.'*" In this class of cases, all the parties stand, or are supposed to stand, in the same situation, and have one common right or one common interest, the operation and protection of which will be for the common benefit of all, and cannot be to the injury of any. Therefore the bill is permitted to be filed by a few on behalf of themselves and all others, or against a few, and yet to bind *■• Story, Eq. PL § 120; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424; Adair v. New River Co., 11 Ves. 444; Weale v. Proprietors of West Middlesex Water Works, 1 Jac. & W. 369; City of York v. Pilk- ington, 1 Atk. 282; Brown v. Vermuden, 1 Ch. Cas. 272; City of Chicago V. Collins, 175 111. 445, 51 N. B. 907; American- Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598. 46 Story, Eq. PI. § 123; Adair v. New River Co., 11 Ves. 444. 17 Story, Eq. PI. § 125; Mitford, Eq. PI. 145, 146; City of York v. Pilk- ington, 1 Atk. 282. (46) Ch. 3] PARTIES TO SUITS IN EQUITY. ij 30 the rights and interests of the others. If it is tiled by the com- plainants on behalf of themselves only, and not on behalf of all the other persons in interest, it will be held bad on demurrer.^* § 29. Decree furnishing a ground to dispense with numeroiis parties. The natnre of the decree which is asked and given may spome- times furnish a ground to dispense with parties, where they are very numerous ; as, for example, where the bill seeks only for a contribution pro rata towards a common charge, the extent of the liability being clearly ascertainable, and admitting and re- quiring a several apportionment.** Though the numerousness of parties, as well as their being unknown, constitutes, or maj constitute, a good gTound for dispensing with their being made actual jjarties to a suit, yet this exception is not allowed to operate where the decree must directly ati'ect the interests of the jjersons not before the court, and they have a right and an in- terest to be heard before the decree is made.^" Thus, it was held that where one of thirty-eight proprietors of a newspaper was appointed bookseller, and received the moneys of the con- cern, on a bill brought by twelve of the proprietors, on behalf of themselves and all the other proprietors, for an account, the remaining twenty-tive proprietors ought to have been made par- ties by name, since it did not appear that the suit was neces- sarily for their benefit.''^ § 30. (3) Persons whose interests are very small. It has been held that, when the interest of an absent defend- *x story, Eq. PI. § 126; Douglas v. Horsfall, 2 Sim. & S. 184; Ball v. Ball, 20 R. I. 520, 40 Atl. 234; Chafee v. Quidnick Co., 13 R. I. 442. *" Story, Bq. PI. § 127. For Instances of such decrees, see Wood v. Dummer, 3 Masou, 308, Fed. Gas. No. 17,944; Mare v. Malachy, 1 Mylne & C. 559; Turner v. Hill, 11 Sim. 1; Anonymous, 2 Eq. Abr. 166, pi. 7. 50 Story, Eq. Pi. § ISO. 51 Bainbrldge v. Burton, 2 Beav. 539. For other cases illustrating these qualifications see Beaumont v. Meredith, 3 Ves. & B. 180; Evans V. Stokes, 1 Keen, 29; Van Sandau v. Moore, 1 Russ. 441; Walburn v. Ingilby, 1 Mylne & K. 7G; Wallworth v. Holt, 4 Mylne & C. 619; Blain V. Agar, 1 Sim. 37. § 32 EQUITY PLEADING AND PRACTICE. [Ch. 3 ant is evidently very small, the court will dispense with his presence in the suit, upon the principle de minimis -non curat § 31. (4) Persons with interests dreated to oust jurisdiction. The English courts hold that where a mortgagee, who has a plain, redeemable interest, makes other conveyances upon trust, in order to entangle the aii'air, and to render it difficult for a mortgagor or his representative to redeem, it is not necessary for the complainant to trace out all the persons who have an interest in such trust, to make them parties. ^^ It is sufficient if the original ovrner of the property is made a defendant.^'' A federal court will not allow parties, by fraud or collusion, to deprive it of, or to give it, jurisdiction, by colorable or fictitious assignments, but will closely scrutinize the merits and the sub- stance.^^ § 32. (5) Parties disclaiming all interest in the controversy, or against whom rights are waived, or who consent to the decree. A complainant may sometimes avoid the necessity of making particular persons parties, by waiving all claim against them in his bill. But this cannot be done to the prejudice of the rights of others who are made defendants in the suit. It cannot, there- fore, be done M-here it is necessary to take an account against the defendant, and whore he has a right to have other persons interested in the taking of the account brought before the court, to .';ave the necessity for a future litigation with them.*^" A s:^ Foster, Fed. Pr. (3d Ed.) § 57; Calvert, Parties t2d Ed.) c. 5, p. 70; Daws v. Benn, 1 Jac. & W. 513; Union Bank v. Stafford, 12 How. (U. S.) 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. (U. S.) 343. ■)" Yates V. Hambly, 2 Atk. 237; Foster, Fed. Pr. (3d Bid.) § 54; Cal- vert, Parties (2d Ed.) p. 61. 54 Foster, Fed. Pr. (3d Ed.) § 54; Yates v. Hambly, 2 Atk. 237. •'■•'■ Shainwald v. Davids, 69 Fed. 687; Union Bank v. Stafford, 12 How. (U. S.) 327; New Orleaug Canal & Banking Co. v. Stafford, 12 How. (U. S.) 343; Lesther .Vtanuracturers' Bank v. Cooper, 120 U. S. 781. ■'<•■ Story, Eq. PI. § 139; Dart v. Palmer, 1 Barb. Ch. (N. Y.) 92. (4S) Ch. 3] PARTIES TO SUITS IN EQUITY. § 33 person who consents to the relief sought, when it is so stated in the bill, need not be joined as a defendant. If it appear to the court that a person who may be interested disclaims an inter- est in the controversy, he need not be made a party ; but if the joinder of such person in either case is essential to the protec- tion of the rights of other defendants, he must be joined.^^ § 33. Doctrine of representation. A limitation upon the general rule as to parties is expressed by the doctrine of representation. By some writers this is consid- ered an exception to the general rule. It is said, however, that it is scarcely an exception, since the absent person is in fact in court, through his representative, by whom his interest is pro- tected or his claim enforced.^® Under this doctrine, where it appears that a particular party, though not before the court in person, is so far represented by others that his interests receive actual and efficient protection, the decree may be held to be binding upon him.°^ "Parties by representation are interested persons not named as parties in the suit, but deemed to be sufficiently represented, for certain purposes of the suit, by par- ties thereto holding special relations to them."®'* The doctrine grows out of convenience or necessity in the administration of justice.®^ Especially is it applicable where the persons not be- fore the court are only possible parties, not in esse, and where the interests of all parties in being require a decree which will completely and finally dispose of the subject-matter of the liti- gation. Such possible parties cannot, as a matter of course, be brought before the court in person ; and it would be highly in- 5rVattier v. Hinde, 7 Pet. (U. S.) 252; McConnell v. McDonnell, 11 Vt. 290; Foster, Fed. Pr. (3d Ed.) § 55; Kilbourn v. Sunderland, 130 U. S. 505; Johnson v. Rankin, 3 Bibb (Ky.) 86. 68 Miller, Bq. Proc. 37, note 1; Foster, Fed. Pr. (3d Ed.) § 45; Cal- vert, Parties, 20; Meux v. Maltby, 2 Swanst. 281. 59 Hale V. Hale, 146 111. 257, 33 N. E. 858; Phelps, Jur. Eq. § 30. 60 Miller, Eq. Proc. 30; Phelps, Jur. Eq. §§ 29, 30; Hale v. Hale, 146 111. 256, 33 N. E. S58. 61 Hale V. Hale, 146 111. 256, 33 N. E. 858; Miller, Eq. Proc. 37; Bowen V. Gent, 54 Md. 555; Calvert, Parties, 19, 64, 74. (49) Equity — 4 § 33 EQUITY PLEADING AND PRACTICE. [Ch. 3 convenient and unjust that tlie rights of all parties in being should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If per- sons in being are before the court who have the same interest, and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree.®^ Persons may be required as parties, either on accotint of something personal, as, for instance, having done certain acts of fraud or collusion, or, like officers of corporations, as possessing certain knowledge; or else because they are the owners or guardians of certain interests which the suit will affect. Upon grounds of the first nature, they must appear in their own persons. If the proceedings concern the individual responsible for the fraud, or possessed of certain in- formation, they cannot be equally conducted in the presence of some other persons appearing in his behalf. On the other hand, if the general rule requires a person to be present merely as the owner and protector of a certain interest, then the proceeding may take place with equal prospect of justice, if that interest receives an effective protection from others. It is the interest which the court is considering, and the owner merely as the guardian of the interest. If, then, some other persons are pres- ent who, with reference to that interest, are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be required, and the court may, without putting any right in jeop- ardy, take its ustial course, and make a complete decree.®^ - It is said in a recent work on equity procedure that the cases in which the doctrine of representation is applied may, for conven- ience, be considered in the following classes : (1 ) Where parties represent persons, not parties, in certain official capacities, as ex- ecutors, administrators, and trustees in insolvency. (2) Where 62 Hale v. Hale, 146 111. 259, 33 N. E. 858; Faulkner v. Davis, 18 Grat. (Va.) 651; Bofil v. Fisher, 3 Rich. Eq. (S. C.) 1. 63 Hale V. Hale, 146 111. 258, 33 N. E. 858, citing Calvert, Parties, 19. (50) Ch. 3] PARTIES TO SUITS IN EQUITY. g 34 parties represent persons, not parties, by reason of their rela- tion to them, otherwise than in an official capacity, as a life tenant representing a remainderman. (3) Where a trustee represents the beneficiaries. (4) Where a corporation repre- sents its stockholders. (5) Where parties are assumed to rep- resent persons not parties, by community of interest, as: (a) Complainants assumed to represent others, as in creditors' bills, or in suits to set aside fraudulent conveyances, or those brought by certain members of an incorporated association on behalf of all the members, or by some shareholder of a corporation on behalf of all of the shareholders, or a taxpayer on behalf of all other taxpayers; (b) defendants assumed to represent others, as in a suit against a numerous class. "■* § 34. Kepresentation by trustees. The general rule is that in suits respecting the trust prop- erty, brought either by or against the trustees, the cestuis que trust, as well as the trustees are necessary parties. To this rule there are several exceptions. One of them is that where the suit is brought by the trustee to recover the trust property, and in no wise affects his relation with his cestuis que trust, it is unnecessary to make the latter parties.*'^ /As the holder of bonds of a corporation, secured by a trust deed on its property, is represented as to such property by the trustees, and cannot maintain a suit for its protection in his own name, except oh a showing that the trustees refused to bring it, he cannot join ai Miller, Bq. Proc. 38. It will be noted tliat the last class of the cases, as stated by Mr. Miller, in which the doctrine of representation Is applied, is the same as the second exception to the general rule hereinbefore considered. See supra, §§ 21, 25-29. See, also. Hale v. Hale, 146 III. 257, 33 N. E. 858; Davis v. Peabody, 170 Mass. 397, 49 N! E. 750; Snow v. Wheeler, 113 Mass. 179. 0= Manson v. Duneanson, 166 U. S. 5-33; Carey v. Brown, 92 U. S. 172; Horsley v. Pawcett, 11 Beav. 569; Adams v. Bradley, 12 Mich. 346; Story V. Livingston, 13 Pet. (U. S.) 359; Chicago &. Great Western Railroad Land Co. v. Peck, 112 111. 435; Stevens v. Bosch, 54 N. J. Eq. 59, 33 Atl. 293; Winslow v. Minnesota & P. R. Co., 4 Minn. 317 (Gil. 230), 77 Am. Dec. 519. (51) § 35 EQUITY PLEADING AND PRACTICE. [Ch. 3 with the trustees in such suit.®^ Where a trustee represents I his beneficiaries in all things relating to the trust property, ithey are not necessary parties to a suit against him by a stran- ger to enforce the trust, or to one by a stranger against him to 'defeat it, in whole or in part. /In such cases the beneficiaries, although not parties, are bound by the judgment, unless it is impeached by fraud or collusion between him and the adverse party. /^The principle which underlies this rule has always been applied in proceedings relating to railway mortgages, where a trustee holds the security for the benefit of bondholders.-/ It is an old principle, long in use imder analogous circumstances, and found to be well adapted to the protection of the rights of those interested in such security, without subjecting litigants to unnecessary inconvenience.®^ Thus, where a trustee exe- cuted a written release of all errors concerning the decree, and waived his right as trustee to appeal from said decree in an ac- tion to foreclose a mortgage made by a railroad company to secure its bonds, in which said trustee was a party defendant as being the trustee in a second mortgage given by the com- pany, it was held that such action bound all the stockholders represented by him as such trustee.®* Cases may arise in which it would be proper to have before the court the beneficiaries themselves, or some one other than the trustee to represent their interests. They then become proper parties, and may be brought in or not, as the court in the exercise e-*^ its judicial discretion may determine.®^ § 35. Executors and administrators. The executor is the principal and necessary representative of the estate vested in him, and of all those interested in it. He sustains, in all cases, the person of the testator, to defend the 66 Consolidated Water Co. v. City of San Diego, 92 Fed. 759. 67 Manson v. Duncanson, 166 U. S. 533; Kerrison v. Stewart, 93 17. S. 155; Richter v. Jerome, 123 TJ. S. 233; Rogers v. Rogers, 3 Paige (N. Y.) 379; Wakeman v. Grover, 4 Paige (N. Y.) 34. esBlwell v. Fosdick, 134 U. S. 500. 69 Kerrison v. Stewart, 93 U. S. 155. (52) Ch. 3] PARTIES TO SUITS IN EQUITY. § 36 estate for him against creditors and legatees.'''' In a suit for • the construction of a will, the executor must be considered as the legal representative of the rest of the persons not yet in esse.''^ While, in general, a judgment against executors or ad- ministrators with the will annexed is binding on legatees, yet it is not so binding when a suit is pommenced or revived after the administrator's accounts have been settled, and all the prop- erty in their hands paid over to the legatees and trustees, under the will, pursuant to a decree of the proper court ; for the trust is then practically terminated, the administrators are divested of all control over the property, and the privity between them and the legatees and trustees terminated.^ ^ § 36. Life tenants and remaindermen. If several remainders are limited by the same deed, this cre- ates a privity between the person in remainder and all those who come after him, and a verdict or judgment for or against the former may be given in evidence for or against any of the latter. There seems to be a conflict of opinion as to whether the same privity exists between a tenant for life and a reversion- er, unless the latter has identified himself with the litigation out of which the judgment resulted, as by being made a party to the proceedings.''^ According to the views entertained and expressed by Lord Redesdale, "it is sufficient to bring before the court the first tenant in tail in being, and, if there be no tenant in tail in being, the first person entitled to the in- "^ heritance, and, if no such -person, then the tenant for life."^"* The supreme court of Maryland entertains a difi^erent view, ToMacArthur v. Scott, 113 U. S. 340; Peacock v. Monk, 1 Ves. Sr. 127; Dandridge v. Washington's Bx'rs, 2 Pet. (U. S.) 370; Cowen v. Adams, 7S Fed. 536; Ward v. Durham, 134 111. 195, 25 N. E. 745; First Baptist Church of Hoboken v. Syms, 51 N. J. Bq. 363, 28 Atl. 461. TiMacArthur v. Scott, 113 U. S. 340; Lorillard v. Coster, 5 Paige (N. Y.) 172. 72 Carey v. Roosevelt, 81 Fed. 608. 73 Freeman, Co.-Ten. cS: Partn. § 482. " Freeman, Co-Ten. & Partn. § 482, citing Giffard v. Hort, 1 Schoales & L. 407. (53), § 38 EQUITY PLEADING AND PRACTICE. [Ch. 3 it being held by it that some person must be broiight be- fore the conrt having an estate of inheritance, and who is, on that account, entitled to represent both his own interests and the interests of all who may come after his death; while, ac- , cording to Lord Redesdalq/if there be no person in existence I possessing an estate of inheritance, then the tenant for life_may I be brought before the court, and treated as the representative \ of persons who may, by their subsequent birth, acquire interest in the estate. ,■• The views of Lord Redesdale are sustained by the majority of the reported adjudications on this subject.'^® § 37. Trustees in insolvency. A bankrupt or insolvent debtor is not, ordinarily, a necessary party to a suit brought by or against his assignee.'^® It is said to be improper for a creditor of an estate to join with its re- ceiver in a suit concerning it.''^ § 38. Corporations. In some cases a stockholder is boimd by a decree against the corporation, such as one making an assessment in the enforce- ment of a corporate duty, although not a party as an individual, but only through representation by the company.'* He is so far 7s Freeman, Co-Ten. & Partn. § 482; Faulkner v. Davis, 18 Grat. (Va.) 684; Gaskell v. Gaskell, 6 Sim. 643; Hale v. Hale, 146 111. 246, 33 N. E. 858. For Maryland cases on this subject, see Downing v. Sprecher, 35 Md. 474; Shreve v. Shreve, 43 Md. 382; Long v. Long, 62 Md. 33. In Miller, Eq. Proc. 41 (a Maryland work), it is said: "In the absence of statutory provision, the tenant for life does not repre- sent remaindermen, born or unborn, except in the case of partition simply;" and the views of the Maryland court of appeals are fully considered. See, also, Story, Eq. PI. §§ 144-147. 76 De Wolf v. Johnson, 10 Wheat. (U. S.) 368. 77 Foster, Fed. Pr. (3d Ed.) § 43, citing Doggett v. Railroad Co., 99 U. S. 72, 78 Glenn v. Liggett, 135 U. S. 533; Sanger v. Upton, 91 U. S. 56; Glenn v. Williams, 60 Md. 93; Hamilton v. Glenn, 85 Va. 901, 9 S. E. 129; Hale v. Hardon, 95 Fed. 747; Great Western Telegraph Co. v. Purdy, 162 U. S. 329; Hendrickson v. Bradley, 55 U. S. App. 715, 85 Fed. 508; Stutz v. Handley, 41 Fed. 537; Wilson v. Seymour, 40 U. S. (54) Ch. 3] PARTIES TO SUITS IN EQUITY. § 39 an integral part of the corporation that, in the view of the law, he is privy to the proceedings toiiching the body of which he is a member.''' Where a stockholder sued a corporation to restrain payment of a dividend which had been declared, and other stock- holders petitioned to become parties defendant, in order to de- fend the case and secnre the di\ddend, it was held that the cor- poration did not represent the petitioners any more than it did the complainant in the snit.^° § 39. Suit by stockholder on behalf of corporation. ^ In some instances a stockholder may sue on behalf of a cor- poration. /The supreme court of the United States have consid- ered this question, and have laid down the rule that in such cases there must exist, as the foundation of the suit, (1) some action or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority con- ferred by their charter or other soui-ee of organization; or (2) such a fraudulent transaction, completed or contemplated, by the acting managers in connection with some other party, or among themselves, or with other shareholders, as will result in serious injury to the corporation, or to the interests of the other App. 567, 76 Fed. 678; Howarth v. Lombard, 175 Mass. 570, 56 N. E. -888, 49 L. R. A. 301; Hancock Nat. Bank v. Farnum, 176 U. S. 640. 70 Hawkins v. Glenn, 131 U. S. 319; Scheafe v. Larimer, 79 Fed. 921; Hale V. Hardon, 95 Fed. 747; Singer v. Hutchinson, 183 111. 606, 56 N. E. 388; Slee v. Bloom, 20 Jolins. (N. Y.) 669; Central Trust Co. of New York V. Western North Carolina R. Co., 89 Fed. 24. There is no such privity between a private corporation and its stockholders that a judg- ment against the one is res judicata aa to the other, except in cases where the law gives to a creditor of such corporation the right of re- course against the individual stockholders for the satisfaction of the judgment debts of the corporation. Wilgus v. Germain, 44 U. S. App. 569, 72 Fed. 773. In respect to rights arising out of contracts other than subscriptions for stock, a shareholder cannot be bound by a judg- ment or judicial proceeding against a corporation to which he was not in fact a party. Andrews v. National Foundry & Pipe Works, 46 U. S. App. 281, 76 Fed. 167; Rood v. Whorton, 67 Fed. 434. See, also, Cumberland Lumber Co. v. Clinton Hill Lumber Mfg. Co., 57 N. J. Eq. 627, 42 Atl. 586. so Gregg v. City of Baltimore, 14 Md. 479. (55) § 39 EQUITY PLEADING AND PRACTICE. [Ch. ? shareholders; or (3) where the board of directors, or a majority of them, are acting for their own interests in a manner destruc- tive of the corporation itself, or of the rights of the other share- holders; or ( 4 y where the majority of shareholders themselves are oppressively and illegally pursuing a course, in the name of the corporation, which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity; (5) it must also be made to appear that com- plainant has made an earnest effort to obtain redress at the hands of the directors and shareholders of the corporation; (6) that he was the owner of the stock on which he claims the right to sue at the time of the transactions of which he complains, or that it has since devolved upon him by operation of law; (Y) and, in the federal courts, that the suit is not a collusive one to confer on a court of the United States jurisdiction in a case of which it would otherwise have no cognizance.*^ ' The stockholder must allege in his bill that he has made a request siHawes v. Oakland, 104 U. S. 450; Taylor v. Holmes, 127 U. S. 489. See, also. Dodge v. Woolsey, 18 How. (TJ. S.) 331; Foss v. Harbottle, 2 Hare, 461; Mozley v. Alston, 1 Phil. Ch. 790; Gray v. Lewis, L. R. 8 Eq. 526; Atwool v. Merryweather, L. R. 5 Eq. 464; MacDougall v. Gardi- ner, 1 Ch. Div. 21; March v. Eastern R. Co., 40 N. H. 548; Peabody v. Flint, 6 Allen (Mass.) 52; Brewer v. Proprietors of Boston Theatre, 104 Mass. 378; Bell v. Donohoe, 17 _ Fed. 710; Hutton v. Bancroft & Sons Co., 77 Fed. 481; Smith v. Hurd, 12 Mete. (Mass.) 371; Fry v. Rush, 63 Kan. 429, 65 Pac. 704; Doud v. Wisconsin, P. & S. Ry. Co., 65 Wis. 108, 25 N. W. 533, 56 Am. Rep. 620; Alexander v. Searcy, 81 Ga. 536, 8 S. E. 630, 12 Am. St. Rep. 337; Talbot v. Scripps, 31 Mich. 268; Consolidated Water Co. v. Babcock, 76 Fed. 243. Eq. Rule U. S. 94 regulates the practice in the federal courts, providing: "Every bill brought by one or more stockholders in a corporation against the cor- poration and other parties, founded on rights which may properly be asserted by the corporation, must be verified by oath, and must con- tain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of the case of which it would not otherwise have cognizance." See, also, Dimp- fell V. Ohio & M. R. Co., 110 U. S. 209; Symmes v. Union Trust Co. of New York, 60 Fed. 830; Watson v. United States Sugar Refinery, 34 U. S. App. 81, 68 Fed. 769. (56). Ch. 3] PARTIES TO SUITS IN EQUITY. § 40 to the corporate officers that suit be instituted by the corporation, j and that such request has not been complied with.*^ '^If a re- ceiver is in charge, the request is to be made to him.*^ Where directors are chargeable with mismanagement, or a receiver, who is a director, is chargeable with other directors, it cannot be supposed that they or he would bring an action against them- selves, and their or his refusal is not a prerequisite to the filing of the bill.«* § 40. Classification of parties. The supreme court of the United States divides parties to \ suits in equity into three classes: First, formal parties; sec- ', ond, necessary parties; third, indispensable parties. Formal I parties are those who have no interest in the controversy between I the immediate litigants, but have an interest in the subject-mat- i ter, which may be conveniently settled in the suit, and thereby prevent further litigation. They may be parties or not, at the option of the complainant.., Necessary parties are those who have an interest in the controversy, but whose interests are sep- arable from those of the parties before the court, and will not be directly affected by a decree which does complete and full justice between them. Such persons must be made parties, if practicable/ in obedience to the general rule which requires ail 82 Cook, Corp. § 740. Eq. Rule U. S. 94 prescribes the necessity of this request. For cases involving necessity of such request, see Hol- ton V. Newcastle Ry. Co., 138 Pa. Ill, 20 Atl. 937; Hazard v. Du- rant, 11 R. I. 195; Taylor v. Holmes, 127 U. S. 489; General Electric Co. V. West Asheville Improvement Co., 73 Fed. 386; Latimer v. Richmond & D. R. Co., 39 S. C. 44, 17 S. E. 258; Stebhins v. Perry County, 167 111. 567, 47 N. B. 1048; City of Chicago v. Cameron, 120 111. 447, 11 N. E. 899. s-Cook, Corp. § 740; Nelson v. Burrows, 9 Abb. N. C. (N. Y.) 280; Streight v. Junk, 59 Fed. 321. See, concerning application to receiver, Swope V. Villard, 61 Fed. 417. siFlynn v. Third Nat. Bank of Detroit, 122 Mich. 642, 81 N. W. 573; Weir V. Bay State Gas Co., 91 Fed. 940; Hawes v. Oakland, 104 U. S. 460; Ziegler v. Lake St. Elevated R. Co., 46 U. S. App. 242, 76 Fed. 662; Ball v. Rutland R. Co., 93 Fed. 513; Home Min. Co. v. McKibben, 60 Kan. 387, 56 Pac. 756. For a full consideration of suits by stock- holders on behalf of a corporation, see Cook, Corp. §§ 734-749; Fry v Rush, 63 Kan. 429, 65 Pac. 701. (.57) g 40 EQUITY PLEL&.DING AND PRACTICE. [Ch. 3 persons to be made parties who are interested in the controversy, in order that there may be an end of litigation. But the rule in the federal courts is that' if they are beyond the jurisdiction of the court, or if m^aking them parties would oust the juris- diction of the court, the case may proceed to a final decree be- tween the parties before the court, leaving the rights of the ab- sent parties untouched-- and to be determined in any competent forum. The reason for this relaxation of the general rule in dispensing with necessary parties in the federal courts resulted from tM'o causes : Pirst, the limitation imposed upon the juris- diction of these courts by the citizenship of the parties; and, secondly, their inability to bring in parties out of their juris- diction by publication. /Indispensable parties are those who not only have an interest in the subject-matter of the controversy, but kn interest of such a nature that a final decree cannot be made without either afl'ecting their interests, or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience.*^ -'' Much confusion and misunderstanding have arisen in the use 85 Minnesota v. Nortliern Securities Co., 184 U. S. 199 ; Chadbourne's Ex'rs V. Coe, 10 tJ. S. App. 78, 51 Fed. 479; Shields v. Barrow, 17 How. (U. S.) 139; Ribon v. Chicago, R. I. & P. R. Co., 16 Wall. (U. S.) 450; Coiron v. Millaudon, 19 How. (U. S.) 113; Williams v. Bankhead, 19 Wall. (U. S.) 563; Kendig v. Dean, 97 TJ. S. 423; Jessup v. Illinois Cent. R. Co., 36 Fed. 735; Barney v. Baltimore City, 6 Wall. (TJ. S.) 284. Eq. Rule TJ. S. 47 reads: "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 reason of their being out of the jurisdiction of the court or incapable otherwise of being made parties, or because their joinder would oust the jurisdic- tion of the court, as to the parties before the court, the court may, in their discretion, proceed in the cause without making such persons parties, and in such cases the decree shall be without prejudice to the rights of the absent parties." This rule is simply declaratory of the previous decisions of the supreme court on the subject of the general rule, which court has said repeatedly that, notwithstanding this rule, a circuit court can make no decree affecting the rights of an absent party, and that all personis whose interests would be directly affected by the decree are indispensable parties. Chadbourne's Ex'rs V. Coe, 10 U. S. App. 78, 51 Fed. 479. (58) Ch. 3] PARTIES TO SUITS IN EQUITY. § 40 of the term "necessary," some text writers and courts treating the terms "necessary" and "indispensable" as synonymous, and as meaning those parties who must be brought into court or the suit will be dismissed. Accordingly, another classification has been arrived at, namely, necessary parties and proper par- ties. ^^ Under this classification, necessary parties are held to be those without whom no decree can be effectively made de- termining the principal issues in the case; and proper parties are those without v^-hom a substantial decree may be made, but not a decree which shall comjDletely settle all questions and con- clude all rights involved in the litigation. Or, more briefly, necessary parties are those without whom no decree can be ren- dered, and proper parties are those whose presence renders the decree more effectiial.®^ ssPomeroy, Rem. & Rem. Rights (2d Ed.) § 329; Lynch v. Rotan, 39 111. 14; Donovan v. Campion, 56 U. S. App. 388, 85 Fed. 71. S7 Phelps, Jur.Eq. § 38; Pomeroy, Rem. & Rem. Rights (2d Ed.) § 329; Lynch v. Rotan, 39 III. 14. I'he distinction between these two classes is thus set forth by a learned judge in a recent case: "The general nile in chancery is that all those whose presence is necessary to a determination of the entire controversy must be, and all those who have no inttrest in the litigation between the immediate parties, but who have an interest in the subject-matter of the litigation which may be conveniently settled therein, may be, made parties to it. The for- mer are termed the 'necessary,' and the latter the 'proper,' parties to the suit. The limitation of the jurisdiction of the federal courts by the citizenship of the parties, and the inability of those courts to bring in parties beyond their jurisdiction by publication, have resulted in a modification of this rule, and a practical division of the possible parties to suits in equity in those courts into indispensable parties and proper parties. An indispensable party is one who has such an in- terest in the subject-matter of the controversy that a final decree be- tween the parties before the court cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may be inconsistent with equity and good con- science. Every other party who has any interest in the controversy or the subject-matter which is separable from the interest of the par- ties before the court, so that it will not be immediately affected by a decree which does complete justice between them, is a proper party. Every indispensable party must be brought into court, or the suit will be dismissed. The complainant may join every proper party, and he must join every proper party who would have been a necessary party (59) EQUITY PLEADING AND PRACTICE. [Ch. 3 i 41. Illustrations of necessary or indispensable parties. Where a suit concerns the disposal of a certain fund, one claiming the fund, and liable by the decree to have it wholly swept from him, is an indispensable party.** ^When judgments are impeached and sought to be set aside for fraud, the plain- tiffs in such judgments are indispensable parties to the bill, ;and no decree can be rendered in favor of the complainant with- 'out making them parties.*-^ When a bill to redeem lands seeks to divest the title out of heirs, and vest the same in complain- ant, it is indispensable, to obtain the relief sought, that such heirs be made parties defendant.®" A sheriff having the mere custody of moneys in litigation is not such a party in interest as to authorize the dismissal of the bill because he is not made a party.®^ In a suit involving lands, the heirs of a deceased claimant are necessary parties, if ques- tions as to title are involved.®^ To a bill praying a sale of land devised to be sold, all those interested in the distribution and the heirs of the testator should be made parties.®^ ,-' Before a title will be decreed upon the alleged equity of a grantor, his under the old chancery rule, unless his joinder would oust the juris- diction of the court as to the parties before it, or unless he is incapable of being made a party by reason of his absence from the jurisdiction of the court, or otherwise. If, however, such a party is incapable of being made a party, or if his joinder would oust the jurisdiction of the court as to the parties before it, the suit may proceed without him, and the decree will not affect his interests." Sioux City Terminal Rail- road & Warehouse Co. v. Trust Co. of North America, 49 U. S. App. 523, 82 Fed. 126; Donovan v. Campion, 56 XJ. S. App. 388, 85 Fed. 71. See, also, Taylor v. Webb, 54 Miss. 36; Chesapeake & Ohio Canal Co. V. Blair, 45 Md. 102; Consolidated Water Co. v. Babcock, 76 Fed. 243. 8s Williams v. Bankhead, 19 Wall. (U. S.) 563; Wheeler v. Lack, 37 Or. 238, 61 Pac. 849; Munch v. Cockerell, 8 Sim. 219; Speakman v. Tatem, 45 N. J. Eq. 390, 17 Atl. 818; Carter v. Uhlein (N. J. Eq.) 36 Atl. 956. so May V. Barnard, 20 Ala. 200. 00 Smith V. Murpiiy, 58 Ala. 630. 91 Smith V. Rogers, 1 Stew. & P. (Ala.) 317. 02 Theurer v. Brogan, 41 Ark. 88. 03 Steele v. Steele, 4 J. J. Marsh. (Ky.) 231. (60) Ch. 3] PARTIES TO SUITS IN EQUITY. § 42 heirs are indispensable parties.®*y' In a suit by one or more heirs to recover assets, another heir and distributee is a proper party, but is not indispensable, whenever the court can proceed to do justice to the parties before it without injury to the ab- sent person.^^ In a bill by the equitable owner of bonds to re- cover them or their proceeds from the surviving members of a copartnership, all the members of which acquired the bonds with knowledge of his rights, it is unnecessary to join the personal representatives of a deceased partner as parties defendant, al- though they would be proper parties at the option of the com- plainant.®* A partner who has sold his interest to another part- ner is not a necessary party to an action for an accounting of the affairs of the partnership.®''' It was held in a suit for an accounting and to cancel a conveyance, claimed to have been procured by fraud, of an interest in a mine, which the pur- chaser conveyed to a corporation of which he was president, that the fact that the corporation had conveyed a portion of the claim to another mining company did not render the latter a necessary party, for a final determination could be had of all the issues between the actual parties, though the title to such portion so conveyed to such mining company would not be affected by the decree.®^ § 42. Illustrations of proper, but not indispensable, parties. The interest which will make one a party must be a right in the subject of controversy, which may be affected by a decree in the suit, and not mere desires in relation to the subject.®® -' Whoever is affected by the demands of a complainant in a suit in equity, either immediately or consequentially, is a proper 84 Triplett v. Gill, 7 J. J. Marsh. (Ky.) 433. 85 Van Bokkelen v. Cook, 5 Sawy. 587, Fed. Cas. No. 16,831; Payne V. Hook, 7 Wall. (U. S.) 425. 86 Phelps V. Elliott, 29 Fed. 53. 8T Kilbourn v. Sunderland, 130 U. S. 505. OS Billings V. Aspen Mining & Smelting Co., 10 U. S. App. 1, 51 Fed. 338. 88 Crocker v. Higgins, 7 Conn. 342. (61) § 43 EQUITY PLEADING AND PRACTICE. [Ch. 3 > party to the suit.-"'V All persons who are concerned in some of the matters involved in a suit may properly be joined as par- ties, and it is not essential that all the parties shall have an in- terest in all the matters contained in the suit.-'^^^ In a suit to obtain a reconveyance of certain lands, brought against the gran- tee of complainant and purchasers of the land from him, on the gTound that the grantee held the lands at first only as se- curity, and afterwards obtained a deed by fraud, it was held that the grantee was, though perhaps not a necessary, yet a proper, party.' °^ One whose interest in a bill does not appear is not a proper party.^"^ If a bill is brought to compel parties to indemnify certain of the complainants against liabilities as- sumed for the common benefit, one who is bound merely as a guarantor may be joined as complainant. So may a party with whom the contract of indemnity is made, by name, though he is not otherwise interested.-"'* § 43. Suits must be brought in the name of real party in in- terest, ; In equity, a party in interest must always institute a suit in his own name, although the legal title is not vested in him.^?/ A suit cannot be brought in the name of one person for the use of another.'"*' Equity treats the assignee of a contract not as- signable at law as a party in interest, and will afford him relief in a proceeding instituted in his own name.-"'^ A suit cannot 100 Thomas v. Eos-well, 37 Leg. Int. (Pa.) 147. i"i Walters v. Parmers' Bank of Virginia, 76 Va. 12, citing Story, Eq. PI. § 271a. 102 Buchoz V. Lecour, 9 Mich. 234. 113 Beall V. Blalie, 16 Ga. 119. 10* Batchelder v. Wendell, 36 N. H. 204. See. also, Ritchie v. Sayers, 100 Fed. 520. 105 Elder v. Jones, 85 III. 384; Field v. Maghee, 5 Paige (N. Y.) 539; Marsh v. Wells, 89 111. App. 485; Press v. Woodley, 160 111. 433, 43 N. E. 718. 106 Kellam v. Sayre, 30 W. Va. 198, 3 S. E. 589; Elder v. Jones, 85 111. 384. loT Dixon V. Buell, 21 111. 20.'!; Rogers v. Traders' Ins. Co., 6 Paige (N. Y.) 583. (Cr2) Ch. 3] PARTIES TO SUITS IN EQUITY. § 44 be maintained in the name of an agent, for it must be prose- cuted in the name of the real party in interest.^ "^ A party ben- eficially interested in a contract may sue in equity in his own name to enforce his rights, although he be not a party to the instrument creating them.-^"'® § 44. Parties in cases of assignments. As a general rule, the person having the legal title in the' subject-matter of the bill must be made a party, either as com- i plainant or defendant, although he has no beneficial interest therein, so that the legal title may be bound by the decree of the court./' In cases, therefore, where an assignment does not pass the legal title, but only the equitable title, to the property, as, for example, an assignment of a chose in action, it is usual, if not indispensable, to make the assignor holding the legal title a party to the suit./'^The true principle would seem to be that in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party. ■'■'^y It is a very different question whether he may not properly be made a party as the legal owner, although no decree is sought against him ; for, in many cases, a person may be made a party although he is not an indispensable party. Where, however, the ' assignment is not absolute and unconditional, or the extent or validity of the assignment is disputed or denied, or there are remaining rights or liabilities of the assignor which may be af- 108 Calvert, Parties, 229; Oakey v. Bend, 3 Edw. Ch. (N. Y.) 482; Jones v. Hart's Ex'rs, 1 Hen. & M. (Va.) 471; Clarkson v. De Peyster, 3 Paige (N. Y.) 337; Leigh v. Thomas, 2 Ves. Sr. 313. 109 Burlew v. Hillman, 16 N. J. Eq. 23. 110 Story, Eq. PL § 153; Mills v. Hoag, 7 Paige (N. Y.) 18; Trecothick V. Austin, 4 Mason, 44, Fed. Cas. No. 14,164; McClintock v. Helberg, 168 111. 384, 48 N. E. 145; Hobart v. Andrews, 21 Pick. (Mass.) 526; Miller v. Bear, 3 Paige (N. Y.) 466; Whitney v. McKinney, 7 Johns. Ch. (N. Y.) 148. (63) § 44 EQUITY PLEADING AND PRACTICE. [Ch. 3 fected by the decree, lie is not only a proper, but a necessary, party.^^^ As a rule, to a bill to enforce or to set aside rights of an assignee under an equitable assignment, such assignee, as the person having a beneficial interest, is a necessary party, and a bill brought by or in the name of the assignor alone would not be maintainable. -^^^ / ' As a general rule, an assignee pendente lite need not be made / a party to a bill, or be brought 'before the court, for every per- / son purchasing pendente lite is treated as a purchaser ■ys'ith no- tice, and is subject to all the equities of the persons under whom h© claims in privity. /'It makes no difference whether the as- signee pendente lite be the claimant of a legal or of an equita- ble interest, or whether he be the assignee of the complainants or of the defendants.-^^^ Where a person having an interest in real estate commences a suit in respect thereto, and, before any hearing or disposition of the cause upon the merits, voluntarily transfers all his interest to another, and the same is made to appear of record, the whole proceeding will become so defective for want of proper parties that no valid decree can be entered in the cause, unless the complainant's assignee, by supplemental bill or otherwise, is made a party complainant to the suit.-^-'* Where complainant sells his whole right to the subject-matter / of the suit, either before or after a decree, the purchaser cannot 1 carry on the suit for his own benefit in the name of the vendor, if there is to be further litigation therein.^^V A distinction is made between voluntary assignments and involuntary assign-- ments, or assignments by mere operation of law. TWhere a ' party becomes insolvent or a bankrupt, his assignees must be 111 story, Eq. PI. § 153. 112 Story, Eq. PI. § 154; Bromley v. Holland, 7 Ves. 2; Movan v. Hays, 1 Johns. Ch. (N. Y.) 339. 113 Story, Eq. PI. § 156; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287; Bades v. Harris, 1 Younge & C. Ch. 230. 114 Smith V. Brittenham, 109 111. 540; Mason v. York & C. R. Co., 52 Me. 82; Laird v. Boyle, 2 Wis. 431. 115 Mills V. Hoag, 7 Paige (N. Y.) 18, citing Mitford, Ecl. PL 65; Binks V. Binks, 2 Bligh, 593. See post, §§ 825-847, 969-973. (64) Ch. 3] PARTIES TO SUITS IN EQUITY. § 45 made parties in all cases where any interest in the property does j or may vest in them./ Thus, an assignee of a bankrupt or insol- vent is a necessary party to a bill brought by the bankrupt or in- solvent against another person for the delivery up of a bill of ex- change which belonged to him prior to his bankruptcy or insol- vency.^^^ § 45. Agents and other persons in similar relations. From the principle that no person shall be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had, it follows thafr a person who is j a mere agent in the transaction ought not to be made a party. -^-^^z f Thus, an aixctioneer who has sold an estate, the sale being a / matter in controversy, should not be made a party defendant ;-'.-'^* nor should a steward or receiver of the rents and profits, where the controversy is between the vendor and vendee, to a bill for specific performance ;■'■''' nor, as a rule, should attorneys or so- licitors.^ ^'^ '^ 116 Story, Eq. PL § 158a; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. 117 Story, Eq. PI. § 231; Garr v. Bright. 1 Barb. Ch. (N. Y.) 157; Lyon V. Tevis, 8 Iowa, 79. lis Story, Eq. PL § 231; Cooper, Eq. PL 41; Tavenner v. Barrett, 21 W. Va. 656. "According to Lord Eldon, in Fenton v. Hughes, 7 Ves. 289, auctioneers, agents to sell, and persons of that description are frequent- ly made defendants, v/ilhout objection, from the circumstance of their holding deposits, and which entitles a plaintiff to relief against them, and this, too, even in cases where it is very difBcult to say that any relief is to be prayed against them at the hearing." Schmidt v. Dietericht, 1 Edw. Ch. (N. Y.) 119, holding that, where an auctioneer has the avails of a fraudulent sale in his hands, he cannot protect himself from an- swering by a demurrer upon the ground of his being a witness; that an auctioneer, in such a case, is a mere agent or stakeholder, and he cannot protect himself on the grounds of other parties having a defense. In- demnity is all he can ask, upon bringing the money into court, or pay- ing It under an order. Where the title to a deposit held by an auctioneer is involved in a suit, the auctioneer is not a proper party, unless the amount involved is very large; but where the deposit is small, it is not proper practice to make the auctioneer a defendant. Egmont v. Smith, 6 Ch. Div. 469. 1" Story, Eq. PI. § 231. 120 Story, Eq. PL §§ 231, 232; Sweet v. Converse. 88 Mich. 1, 49 N. (65) Equity — 5 § 46 EQUITY PLEADING AND PRACTICE. [Ch. 3 It is improper to make a defendant's attorney, against whom no relief, and from whom no discovery, is asked, defendant to a bill for an injunction.^^^ And he is not a proper party to an action to restrain his clients from the prosecution of a suit, where nothing is alleged against him, except that he was dis- charging his duty as an attorney in prosecuting the action, and no relief but an injunction is demanded as against him.^^^ On a bill to set aside an annuity on account of a defective memorial, the attorney or solicitor negotiating such annuity ought not to be made a party defendant.^ ^^ An arbitrator is not a proper party to a bill to enforce or set aside an award.-' ^* /If, how- ever, there is any charge of fraiid connected with the transac- tion in which the agent, or steward, or attorney, or solicitor, or arbitrator participated, and it is so charged in the bill, then he may properly be made a party ;<'for even though no other de- cree would be warranted by the circumstances of the case against him, he might be decreed to pay the costs of the suit if his prin- cipal should happen to be or become insolvent. ^^^ The courts, however, are not disposed to extend the rule relative to making a mere agent a defendant to a suit, and the practice seems to be limited to cases of fraud, as that word is generally understood in a court of equity, and does not apply where, though the agent acts erroneously, he acts openly and avowedly.-'^^ § 46. .bankrupts and assignees.^ Whether or not a bankrupt is a proper party has given rise to some dispute. Mr. Justice Story says that^,lthough he ought W. 899; Hastings v. Belden, 55 Vt. 273; Ely v. Lowenstein, 9 Abb. Pr. (N. S.; N. Y.) 37; Hopson v. Harrell, 56 Miss. 202. 121 Hopson V. Harrell, 56 Miss. 202. 122 Ely V. Lowenstein, 9 Abb. Pr. (N. S.; N. Y.) 37. 123 Story, Eq. PI. § 231; Cooper, Eq. PI. 42. 124 Story, Eq. PI. § 231; Mitford, Eq. PL 160, 161. ' 125 Story, Eq. PI. § 232; Hastings v. Belden, 55 Vt. 273; Lyon v. Tevis, 8 Iowa, 79; Garr v. Bright, 1 Barb. Cb. (N. Y.) 157; Le Texier V. Anspach, 15 Ves. 164. See Stringfield v. Graff, 22 Iowa, 438. 126 Lyon V. Tevis, 8 Iowa, 79; Marshall v. Sladden, 7 Hare, 428; Att- wood V. Small, 6 Clark & F. 352. (66) Ch. 3] PARTIES TO SUITS IN EQUITY. § 47 not generally to be made a party to a bill against his assignees touching his estate, yet if, in such a bill, any discovery of his acts before he became a bankrupt is soiight, he may properly be joined, and compelled to make the discovery.^ ^V ^^ England a bankrupt has been held to be an improper party tcy^a bill to set aside a fraudulent conveyance by the bankrupt.^^* In the Unit- ed States it is held that to such a bill the bankrupt is neither a j necessary nor a proper party.^^/"^ § 47. Making witnesses parties defendant. A mere veitness ought not to be made a party to a bill.-^^" The case of ofScers and agents of a corporation is an exception to the general rule that a person who has no interest in the sub- ject-matter of the litigation, and who is a mere witness, cannot be made a defendant in a bill./ It is the settled law that, in a bill against a corporation for relief, its officers and agents, who were cognizant of the facts to which it relates, may be made de- fendants for the purpose of obtaining an answer, under oath, which cannot be obtained in any other way.^^V The reason as- signed for this distinction between the case of individuals and the case of corporations is that the former may be compelled to answer upon their personal and corporal oaths, whereas a cor- poration cannot be sworn/'and therefore must put in its answer under its common seal only, and, however false its answer may be, the corporation can never be convicted of perjury. -^^^ Such officers and agents can only be made parties for discovery where 127 story, Eq. PI. § 233; Mitford, Eq. PI. 161. 128 Weise v. Wardle, L,. E. 19 Eq. 171. i28Buffingtoii V. Harvey, 95 U. S. 99; Benton v. Allen, 2 Fed. 448; Harding v. Crosby, 17 Blatchf. 348, Fed. Gas. No. 6,050; Cox v. Wall, 99 Fed. 546; French v. Smith & Sons Co., 81 Minn. 341, 84 N. W. 44; Williamson v. Selden, 53 Minn. 73, 54 N. W. 1055. 130 Story, Eq. PI. § 234; Cooper, Eq. PI. 41; Dummer v. Chippenham, 14 Ves. 252. 131 Many v. Beekman Iron Co., 9 Paige (N. Y.) 190. See O'Brien v. Champlain Construction Co., 107 Fed. 338; Bovalrd v. Seyfang, 200 Pa. 261, 49 Atl. 958. ? 132 Story, Eq. PI. § 235. (6n § 47 EQUITY PLEADING AND PRACTICE. [Ch. 3 relief is sought against the corporation, and not where the whole relief claimed is against persons other than the corporation.^** Where the officers or agents of a corporation are made parties for the purpose of obtaining a discovery of facts within their knowledge as such officers or agents, it is not necessary for the complainant to show in his bill that they alone are acquainted with the facts as to which an answer is sought. It is sufficient if it appears that the facts charged in the bill are material to the relief sought against the corporation, and are known to the offi- cers or agents as such, especially if the discovery relates to trans- actions with them and in that character. ^*^ / In such case no relief, either general or special, should be prayed against such officer, and the prayer of the bill should be so framed as to show distinctly that the relief sought is intended to be confined to the corporation/'and that no relief whatever is to be asked as to the officer of the corporation at the hearing, even as to costs.-^*^ Where the complainant, by mistake, inserts the prayer for re- lief against such officers or agents, as well as against the com- pany, and the officers cannot demur to the discovery and the relief generally, they should make the discovery sought, and de- mur to the relief, or they should answer the bill generally, and then object at the hearing that they had been improperly made parties to the suit for relief as well as for discovery.^*®/ The corporation ought also to be permitted to put in a separate an- swer, in order to make offers and admissions, and to deny facts which the officers may suppose do exist.^*'''' On the answer of such officers or agents no decree for relief can be founded, either as against them or the corporation. The answer of the officers cannot be read against the company; yet it may be of use to direct the complainant how to draw and put his interrogatories 133 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188. 134 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188. 135 Mclntyre V. Trustees of Union College, 6 Paige (N. Y.) 239. 136 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188. 137 Vermilyea v. Fulton Bank, 1 Paige (N. Y.) 37. (68) Ch. 3] PARTIES TO SUITS IN EQUITY. § 48 towards obtaining a better discovery.^^*/ The former as well as / the present officers of a corporation can be made parties to a ; suit against such corporation, and compelled to make discovery > of facts within their knowledge.-'^^,'* Individual members of a corporation may also be made par- ties to a bill, either for discovery alone, or -for discovery and relief, although they have no other interests than as corporators in the subject-matter of the suit.-'*" /'They may be called upon to answer to a bill for discovery under oath, biit in such a case ;' the persons whose discovery under oath is sought must be ' named in the bill as defendants.^ *^ Where a corporation is made a party to a suit in which it has no interest, and to which it ought not to have been made a party, an officer of the corpo- ration who has no personal interest in the controversy, and who is not charged with any fraud or misconduct, cannot be com- pelled to answer matters as to which he is a mere witness.^*" He cannot be made a party defendant to a cross bill for the purpose of discovery, where he did not derive the desired in- formation in his official capacity. ■'■^^ While this exception exists in regard to agents of corpora- tions, it is not extended to agents of natural persons.^** § 48. Joinder of complainants. It is a general rule that, where several complainants join in a bill, all must be entitled to relief, or it will be dismissed as 138 vermilyea v. Fulton Bank, 1 Paige (N. Y.) 37; Wych v. Meal, 3 P. Wms. 310; McComb v. Chicago, St. L. & N. O. R. Co., 7 Fed. 426. 139 Fulton Bank v. Sharon Canal Co., 1 Paige (N. Y.) 219. 110 Story, Eq. PI. § 235. 1" Brumly v. Westchester County Mfg. Soc, 1 Johns. Ch. (N. Y.) 366. Under the rules of practice in equity prescribed by the supreme court of the United States, no one but a defendant can be compelled to answer the interrogatories in a bill. Therefore an officer of a cor- poration, if discovery is sought, must be made a party. French v. First Nat. Bank of New York City, 7 Ben. 488, Fed. Cas. No. 5,099. "2 Ellsworth V. Curtis, 10 Paige (N. Y.) 105. 143 McComb v. Chicago, St. L. & N. O. R. Co., 7 Fed. 426. 144 Le Texier v. Margravine of Anspach, 15 Ves. 159. (69) § 49 BQUTY PLEADING AND PRACTICE. [Ch. 3 to all.^^"^^/ Thus, a joint bill by two parties to set aside a de- cree for fraud, consisting of want of notice, cannot be sustained if either did in fact have notice, or waive the want of notice by appearance."'^ This rule as to the misjoinder of complainants, which refuses relief to any of them unless all are entitled to relief, does not apply to a bill by the assignor and assignee of a chose in action jointly. ^*x There is no inflexible rule on the subject of joinder of parties in courts of equity. The court exercises a sound discretion in determining whether there is a misjoinder of parties, under the particular circumstances of the case.^^^ Thus, it has been held that the improper or unneces- sary joinder of a party complainant will not defeat a cause in equity.^*^."' If one co-complainant is not entitled to relief, the bill is demurrable.^^y^ „. -«-', f\- *...-., ■ - •■'■ . § 49. Complainants having community of interest. Parties whose interests are in harmony, and only those, should be joined as complainants.-'^-' Persons representing adverse in- terests cannot be joined as complainants.-' ^j^ To enable two to file a bill as co-complainants, both must have an interest, and i*'-^ Dias V. Bouchaud, 10 Paige (N. Y.) 445; Lovelace v. Hutchinson, 106 Ala. 417. 17 So. 623; Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 186; King of Spain v. Machado, 4 Russ. 225. In such case the remedy of the complainant is to strike out the name of the one having no cause of action. Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623. 14C Berdanatti v. Sexton, 2 Tenn. Ch. 699. 1*7 Broughton v. Mitchell, 64 Ala. 210. lis Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Kensing- ton V. White, 3 Price, 164; Mills v. Campbell, 2 Younge & C. Ch. 389; Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139. 1*9 Brown v. Lawton, 87 Me. 83, 32 Atl. 733. 150 Vaughn v. Lovejoy, 34 Ala. 437; Jones v. Quinnipiack Bank 29 Conn. 25. See 1 Pom. Eq. Jur. §§ 243-275, for full discussion of joinder of com- plainants. isiBunce v. Gallagher, 5 Blatchf. 481, Fed. Cas. No. 2,133; Saumarez V. Saumarez, 4 Mylne & C. 331. 152 Smith V. Smith, 102 Ala. 516. 14 So. 765; Parsons v. Lyman, 4 Platchf. 432, Fed. Cas. No. 10,779; Grant v. Van Schoonhoven, 9 Paige (N. Y.) 255, 37 Am. Dec. 393. (70) Ch. 3J PARTIES TO SUITS IN EQUITY. § 49 both be entitled to relief. ^^^/'Complaiaants having no common interest, but asserting distinct rights, cannot, as a general rule, unite in the same suit.^^* Thus, the heirs to an estate cannot join with the administrator in an original bill for an account of the personal estate, and for the rents and proiits of land, Dr for the recovery of land.^^®.. To prevent a multiplicity of suits, equity sometimes enter- tains bills by complainants between whom there exists no privity of contract, and against defendants between whom there exists no connection except a coinmjinity.jjf interest in the subject- matter of the suit.^^'' Thus,/it is held that unconnected par-^ ties, having a common interest centering in the point iuj issue: in the cause, may. unite in the same bill;^^^ and where there is a unity of interest as to the object to be attained, the par- ties seeking redress may join in the same bill;^^^ and two or more persons having separate and distinct tenements, which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injury to the tenants of both, may join in a suit to restrain such nuisance."^ Parties having an interest in lOo Wilkins v. Judge, 14 Ala. 135. i5i Plum v.- Morris Canal & Banking Co., 10 N. J. Eq. 256; Hendrick- son V. Wallace, 31 N. J. Eq. 604; Gilbert v. Thomas, 3 Ga. 575; EUicott V, Elllcott. 2 Md. Ch. 468; Clark v. Holbrook, 146 Mass. 366, 16 N. E. 410. 13-; Scott V. Calvit, 3 How. (Miss.) 148; Dunn v. Dunn, 2 Cond. Eng. Ch. 440. See. also, Massey v. Modawell, 73 Ala. 421. In a bill for an account and a conveyance o£ lands held in trust for a person deceased, the vendee of the lands from the deceased, and his administrator, may properly join. Ulrici v. Papin, 11 Mo. 42. i-'O Kennedy's Heirs and Ex'rs v. Kennedy's Heirs, 2 Ala. 571. See 1 Pomeroy, Eq. Jur.§§ 244-275. i-'- Comstock V. Rayford, 1 Smedes & M. (Miss.) 423, 40 Am. Dec. 102. 'i5s De Louis v. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491; Powell V. Spaulding, 3 G. Greene (Iowa) 443; Marsh v. Village of Fairbury, 163 III. 401, 45 N. E. 236; Trustees of Village of Watertown v. Cowen, 4 Paige (N. Y.) 510. See 1 Pomeroy, Eq. Jur. §§ 258-261. 159 Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dee. 773; Belknap v. Trimble, 3 Paige (N. Y.) 577; Taylor v. Bay City St. Ry. Co., 80 (71) § 49 EQUITY PLEADING AND PRACTICE. [Ch. 3 common in the subject-matter of a suit in equity may be joined as complainants, though each acquired his interest by a separate and distinct contract.^ ^^ Where complainants' interests are in every important sense several, and there is no unity or commun- ity of interest between them as regards the subject-matter of the suit, and they have but a common interest in the law of the case, and they stand in no danger of a multiplicity of suits, they can- not join in the suit.^®^ Whether or not persons who have been deceived by fraudu- lent representations may join in an action against the party per- petrating the fraud depends iipon circumstances. Where the fraudulent acts complained of are different and unconnected, the joinder is not allowed, because they are distinct and separate, although similar ; as where agents procured subscriptions by fraudulent representations at different times, and under vary- ing circumstances, although similar in their general scope, be- cause the defense is different, each dependent upon its own cir- cumstances. But in a case where persons have been induced by the same fraudulent representations contained in a prospectus to subscribe to the stock of a corporation, such persons have a common interest, and may join in a bill for the benefit of them- selves, and others similarly deceived, to set aside their subscrip- tions. The fraudulent acts are exactly the same, and perpe- trated by the same means, and the injury is identical as to all, except in the amount of the injury.^^^ Thus, where persons were induced to subscribe to the stock of a corjjoration by rep- resentations that it had a paid-up capital of a certain amount, was out of debt, and doing a profitable business, and that they Mich. 77, 45 N. W. 335; Beach v. Spokane Ranch & Water Co. (Mont.) 65 Pac. 111. See 1 Pomeroy, Eq. Jur. § 257. 160 Edwards v. Sartor, 1 Rich. (S. C.) 266. 161 Schulenberg-Boeclteler Lumber Co. v. Town of Hayward, 20 Fed. 422. 162 Bosher v. Richmond & Harrisburg Land Co., 89 Va. 455, 16 S. E. 360, 37 Am. St. Rep. 879. See, also, Bradley v. Bradley, 165 N. Y. 183, 58 N. E. 887; Brown v. Guarantee Trust & Safe Deposit Co., 128 U. S. 403; Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142; Barcus v. Gates, 61 TJ. S. App. 596, 89 Fed. 783; Ashmead v. Colby, 26 C'pnn. 287. (72) Ch. 3] PARTIES TO SUITS IN EQUITY. § So would be given employment therein at specified wages, all of which representations were false, it was held that they could maintain a joint bill for the cancellation of their subscriptions, and the return to them of the money they had paid for the stock, it appearing that they acted jointly in the whole transaction, the representations were made to them jointly, or to one of them acting for both, and the money paid for the stock was drawn out of a former copartnership between them.-' ^^Z It has been ,' held, however, that several depositors in a savings bank, de- ! ceived by the misrepresentations of its managers, cannot join : in a suit to compel the managers to make good the loss sus- tained by the'm, for the reason that the injurious act of the de- fendants operated on each of the complainants as an individual alone, and out of all connection with his fellows, and each de- positor was separately deceived.-'®'' / § 50. Community of title. / Persons holding in severalty different parcels of land derived [ from the same source may unite in the prosecution of a suit ' brought to adjust the common title. ^""V Thus, where a vendor : conveys with covenant of warranty, and his vendee afterwards ; conveys portions of the land, with covenants of warranty, to \ two others, retaining a part himself, and the three are evicted ; of an imdivided third part of the land by title paramount to i that of the original vendor, they may join as complainants in a ! bill against him to reimburse themselves for the loss sustained ' by the breach of his warranty. ^^/- The purchaser of land, and 163 Sherman v. American Stove Co., 85 Mich. 169, 48 N. W. 537. 1"! CiitsLer V. Hald-ard, 3u N. J. Eq. 313; Jones v. Del Rio, 1 Turn. & R. 297. "It is familiar and unquestioned practice for creditors and stockholders to unite in bills for a common remedy, although their debts and stock may vary in amount." Whipple v. Guile, 22 R. I. 576, 48 Atl. 935; Hazard v. Durant, 9 R. I. 602; Vernon v. Reynolds, 20 R. I. 552, 40 Atl. 419. 165 1 Pomeroy, Eq. Jur. §§ 245, 255, 257, 268, 269, 273; Tilford v. Hen- derson, 1 A. K. Marsh. (Ky.) 483; Scrimeger v. Bucchannon, 3 A. K. Marsh. (Ky.) 219; Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824; Cre-svs v. Burcham, 1 Black (U. S.) 352. 166 Gannard v. Eslava, 20 Ala. 732. (73) § 51 EQUITY PLEADING AND PRACTICE. [Ch. 3 his vendee, may join in a bill against the original vendor in order to obtain a title directly to the second vendee, but in such case there must be no conflict between the complainants them- selves.^ ^^ Wards entitled to the same estate, which has not been divided, may join in a bill against their joint guardian and his sureties, who were all bound at the same time and by the same instrument.^®* ■^ But when a bill is filed for the settlement of j an estate by several complainants, claiming to be next of kin of I the decedent, and one of them claims through his father, who ■ died after said decedent, there is a misjoinder of complainants ■ which is fatal on general demurrer.^ ^^^ § 51. Defendants to bills. If a party in interest refuses to join with the complainant, he may be made a defendant, though his true interest may be with the complainant.^"'^ The refusal should be stated in the bill.^^V But where the assignees of an insolvent were made de- fendants in a bill of revivor, put in their answer as such, and made no objections to ihat character, it was held that their re- fusal to join as complainants might be inferred, and, being be- fore the court as parties, it was sufficient. ^'''^ Where one of two joint debtors refiised to join with the other in a bill to establish usury in defense of a suit at law, it was held that the surety might file a bill making the principal debtor defendant, stating such refusal. ^'^ Equity may oblige a complainant to assume the position of a defendant, that justice between the parties may be effectuated, and, where the case justifies it, will decree at once without waiting for such change of position.^''* 167 Crook V. Brown, 11 Md. 158. 16S Hutchcraft v. Shrout's Heirs, 1 T. B. Mon. (Ky.) 206, 15 Am. Dec. 100. 169 Plunkett V. Kelly, 22 Ala. 655. iTo Porter v. Clements, 3 Ark. 364; Smith v. Sackett, 10 111. 534; Whit- ney V. Mayo, 15 111. 251; Pogson v. Owen, 3 Desaus. (S. C.) 31. iTi Contee v. Dawson, 2 Bland (Md.) 264. 1T2 Osgood V. Franklin, 2 Johns. Ch. (N. Y.) 1, 7 Am. Dec. 513. 173 Morse v. Hovey, 9 Paige (N. Y.) 197; Beggs v. Butler, 9 Paige (N. Y.) 228. f74) Ch. 3] PARTIES TO SUITS IN EQUITY. g 52 A bill brought by a pledgee against a stranger to recover, pos- session of property pledged, which avers that complainant's claim is sufficient to cover the property, and to which bill the pledgor is made a defendant, is not open to demurrer on the ground that he should have been joined as a complainant.-^^® Those only are parties defendant in a bill against whom process is prayed.^""/ An infant should be made a defendant, rather than a complainant.^'' V The necessity of establishing the case as against an infant party cannot be obviated by making the in- fant a complainant.^^*/ Upon a bill filed for the purpose of. par- titioning lands in which minors had an interest, and also to vest in the widow the title in fee to a portion of the land, includ- ing the mansion house, equal to a child's part of the land, in lieu of dower, it was held that the minors must be made defend- ants, and it would be error to make them complainants in such a cause. ^'"/ i 52. Joinder of defendants. To entitle a complainant to join several persons as defend- ants, such persons must have a community of interest in at least I'i Farmers' & Mechanics' Bank of Prederic-k County v. Wayman, 5 Gill (Md.) 336. See post, § 60. i'5 Michigan State Bank v. Gardner, 3 Gray (Mass.) 305. iTc Story, Eq. PI. § 44; Cooper, Eq, PI. 16; Elmendorf v. Delancey, 1 Hopk. Ch. (N. Y.) 555; Fawkes v. Pratt, 1 P. Wms. 593; Lucas v. Bank of Darien, 2 Stew. (Ala.) 2S0; Verplanck v. Mercantile Ins. Co. of New York, 2 Paige (N. Y.) 438; Talmage v. Pell, 9 Paige (N. Y.) 410; Carey V. Hillhouse, 5 Ga. 251; Green v. McKenney, 6 J. J. Marsh. (Ky.) 193. It seems that, under the practice formerly obtaining in New York, it was sufficient if the parties were distinctly named as such in the bill. Ver- planck V. Mercantile Ins. Co. of New York, 2 Paige (N. Y. ) 438. See post, § 78. 177 McGavock v. Bell, 3 Cold. (Tenn.) 512. 17S Benson v. Wright, 4 Md. Ch. 278. 179 Simpson v. Alexander, 6 Cold. (Tenn.) 619. Upon a suggestion at any time during the progress of a cause, the court can direct an in- quiry to ascertain whether the infant is in a proper position before the court to have his rights protected; and if he is not, then an order can be had to amend by placing him on the opposite side of the suit. Le Fort v. Delafield, 3 Bdw. Ch. (N. Y.) 32; Bowen v. Idley, 1 Kdw. Ch. (N. Y.) 149. (75) § 52 EQUITY PLEADING AND PRACTICE. [Ch. 3 some material subject-matter of the suit;^*" but the interest of each defendant need not be identical.^ ^^ Where a general right is claimed against several distinct persons, they may be all . joined in one suit.^^^/' Several persons may be joined as defend- ants, though claiming distinct rights, if they have one connected i interest among them all, centering in the point in issue in the ; cause.^®^ A bill may be sustained against different persons, relative to matters of the same nature, in which all of the de- fendants are more or less concerned, though not jointly in each act.-'^* Where two separate and distinct parties are acting in the accomplishment of a measure injurious to others who hav'e rights in the same matter, though they may be acting separately, and with adverse interests as between themselves, all the par- ties so acting may be joined in a bill by the aggrieved party as defendants, and a demurrer on account of such joinder will not be sustained.-'^^'' If all the defendants are charged with com- bination and fraud, and derive their titles fro'm a common source, and are interested in the subject-matter of the suit, there is no misjoinder, although as to portions of the land involved their titles may be distinct. ■'^^ /it is not necessary that there should be a privity or connection between the defendants in a bill of peace.-' y'' It seems that a bill of peace may be filed 180 White V. Delschnelder, 1 Or. 254; Van Hise v. Van Hise (N. J. Bq.) 47 Atl. 803. isi Lehigh Valley R. Co. v. McParlan, 31 N. J. Eq. 758; Borough of Rutherford v. Alyea, 54 N. J. Bq. 411, 34 Atl. 1078. 182 Vann v. Hargett, 22 N. C. 31, 32 Am. Dec. 689. See 1 Pomeroy, Eq. Jur. §§ 267-275. 183 Fellows V. Fellows, 4 Cow. (N. Y.) 682, 15 Am. Dec. 412; Randle V. Boyd, 73 Ala. 282; Stevens v. South Ogden Land, BIdg. & Imp. Co., 14 Utah, 232, 47 Pac. 81. 184 Wheeler v. Clinton Canal Bank, Har. (Mich.) 449. 185 Putnam v. Sweet, 1 Chand. (Wis.) 286, 2 Pin. (Wis.) 302. 186 Pierson v. David, 1 Iowa, 23; Andrews v. Pratt, 44 Cal. 309; Story, Eq. PI. §§ 284, 285, 285a, 286; Brinckerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139. 18T Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638. The in- terest which will allow parties to join in such a bill is not only an interest in the question, but one in common in the subject-matter of the suit. Cutting v. Gilbert, 5 Blatchf. 259, Fed. Cas. No. 3,519; City (76) Ch. 3] PARTIES TO SUITS IN EQUITY. § 53 against tlie whole body of confederates who unite for the com- mission of an act in violation or fraud of the rights of com- plainant, however numerous the parties may be, and even though, in carrying out the details, each one of the several confederates may have performed acts, or claim to have acquired rights, per- sonal to himself, and distinct from those acquired by the oth- § 53. Bringing in new parties. ' If the complainant desires to make new parties, he amends his bill and makes them. If the interest of the defendant re- quires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable pai-ty is not on the record, it refuses to proceed.^ *^ Where, in the progress of a suit, a third person is found to be interested, he should be made a party.-'^" A complainant cannot be compelled to add new parties to his bill, if he chooses to take the responsi- bility of their not being made parties. -^^^ A defendant cannot object to the action of the court in making, with complainant's assent, new de^endants.-*-®^ A person may come in on the hear- ing and consent to be bound by the decree, and thus obviate any error in not making him a formal party to the bill."'^^ of London t. Perkins, 3 Brown, Pari. Cas. 602. See, also. Story, Eq. PI. § 124; Mitford, Eq. PL 144, 146; 1 Pomeroy, Eq. Jur. §§ 246-249. 188 New York & N. H. R. Co. v. Schuyler, 1 Abb. Pr. (N. Y.) 417. For full discussion of joinder of defendants, see 1 Pomeroy, Eq. Jur. §§ 243-275. 188 Shields v. Barrow, 17 How. (U. S.) 145; Ex parte Printup, 87 Ala. 148, 6 So. 418. , 190 Carman v. Watson, 1 How. (Miss.) 333. 191 Searles v. Jacksonville, P. & M. R. Co., 2 Woods, 621, Fed Cas. No. 12,586; Leiter v. Field, 24 111. App. 123; Shields v. Barrow, 17 How. (U. S.) 145; Ex parte Printup, 87 Ala. 148, 6 So. 418. A bill does not lie to compel defendant to make complainant a co-complainant with defendant in another suit. Carter v. Smith, 35 Fla. 169, 17 So. 411. 192 Exchange & Deposit Bank v. Bradley, 15 Lea (Tenn.) 279. 193 Hannas v. Ha.nnas, 110 111. 53. For right to bring in new parties by supplemental bill, see Hoppock v. Cray (N. J, Eq.) 21 Atl. 624; Jen- (11) § 54 EQUITY PLEADING AND PRACTICE. [Ch. § 54. Substitution of parties. Statutory prQvisions in most jurisdictions are found relative to the substitution of parties complainant and defendant, where the original parties have died, become incompetent to transact business, or their interest or title in the suit has been divested, or the suit otherwise abated. /"Such statutes should be consult- ed when the case requires, as they will frequently be found to be simpler than the ordinary procedure under the rules of chan- cery practice.-'** As a rule, a statute authorizing the revivor of suits on a summary application to the court, by motion or pe- tition, although intended to provide a substitute for a bill of revivor, does not prohibit such a bill in any of the cases com- ing within the provisions of the statute. Such a bill may be filed whenever there is a proper case for it, notwithstanding the statute has provided another method of reviving a suit by a cheaper and more simple process.^'®/* Supplemental bills are also used to bring in new parties, when there is a defect in tlie proceedings occurring too late to be remedied by amendment, or where, by an event subsequent to the commencement of the suit, a new interest in the matter in litigation is claimed by an existing party to the suit, or a new party claims not by mere operation of law the interest which was claimed by an existing party.-' *V Bills of revivor, bills in the nature of bills of revivor, bills in the nature of supplemental bills, bills of revivor and supplement, and bills in the nature of bills of revivor and sup- kins V. Freyer, 4 Paige (N. Y.) 47; Bogardus v. Trinity Churcli, 4 Sandf. Ch. (N. Y.) 369. Liberal statutes relative to amendments are no-w found in most jurisdictions, and new parties may be brought in by amendment. Hungerford v. Cusbing, 8 Wis. 332; Ens-worth v. Lam- bert, 4 Johns. Ch. (N. Y.) 605. 194 The method of reviving suits in cases of abatement, -which is merely an interruption to the suit, suspending its progress until ne-w parties are brought before the court, -will be hereafter considered. See Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; 1 Barbour, Ch. Pr. 674. 105 2 Barbour, Ch. Pr. 34. See ho-we-ver. Keep v. Cra-wford, 92 111. App. 587. See post, §§ 848-878, 962-968. 1 196 2 Barb. Ch. Pr. 59. See post, §§ 825-847, 969-973. ' ' ^7S^ Ch. 3] PARTIES TO SUITS IN EQUITY. § 55 plement, which will be hereafter considered, are also used for this purpose. i 55. Intervention. / "Intervention" is a civil-law term, and is the act by which a | party, not originally a party, interposes in a suit his claim, ; which is frequently adverse to one or both of the original liti- i gants.-'^y It is the common practice of the court to permit strangers to a litigation, claiming an interest in the subject-mat- ter, to intervene on their own behalf to assert their demands. ■'^^ That a stranger to a suit will not 'be permitted on his own appli- cation, and over the objection of the complainant, to become a defendant, is a well-established general rule, to which there are but few exceptions.^^^ No one is permitted to be made or to become a party in a suit unless he has an interest in its object or subject-matter.^"" /A distinction is made between suits in personam and suits in rem. A stranger can have no interest, in a legal sense, in the claim asserted in a suit in personam, unless it is necessary that such person, not a party, shall be made a party, in order to properly enforce such claim; but in a suit in rem,, persons not parties may have a claim on or interest in the res, and may intervene. ^"^ Persons desiring to intervene should take, with due diligence, the requisite steps so to do.^"^ 197 Hyman v. Cameron, 46 Miss. 725. 198 Krippendorf v. Hyde, 110 U. S. 276; Marsh v. Green, 79 111. 385; Phillips V. Wesson, 16 Ga. 137; Birdsong v. Birdsong, 2 Head (Tenn.) 289; Robertson v. Baker, 11 Fla. 192; Foster, Fed. Pr. (3d Ed.) § 201. ioi)Toler V. East Tennessee, V. & G. Ry. Co., 67 Fed. 171; Stretch v. Stretch, 2 Tenn. Ch. 140; Ex parte Printup, 87 Ala. 148, 6 So. 418. The right to intervene is not well settled in all jurisdictions. See Smith V. Evans, 3 A. K. Marsh. (Ky.) 217; Davis v. Harrison, 2 J. J. Marsh. (Ky.) 189; Whitney v. Hanover Nat. Bank, 71 Miss. 1009, 15 So. 33, 23 L. R. A. 531; Stretch v. Stretch, 2 Tenn. Ch. 140; Ex parte Printup, 87 Ala. 148, 6 So. 418; Renfro v. Goetter, 78 Ala. 311. 200 Krippendorf v. Hyde, 110 U. S. 276; Carter v. City of New Or- leans, 19 Fed. 659; Miller, Eq. Proc. 97; Marsh v. Green, 79 111. 385. 201 Miller, Eq. Proc. 97, citing Coleman v. Martin, 6 Blatchf. 119, Fed. Cas. No. 2,985. 2"2-Central Trust Co. v, Texas & St. L. Ry. Co., 24 Fed. 153. (79) § 55 EQUITY PLEADING AND PRACTICE. [Ch. 3 In a case brought to a court of review by appeal, none save such as are parties. to the record therein have a right to be heard. If there are interests such as would make it proper to intervene in the cause, such intervention must begin in the court of original jurisdiction, and cannot be allowed in the court of review.^"^ The practice of permitting judgment creditors to come in and make themselves parties to a creditors' bill, and thereby obtain the benefit of the suit, assuming at the same time their propor- tion of the costs and expenses of the litigation, is well settled.^?* A petition to become, a party to a suit in equity, where the rec- ord does not show the nature of the suit, is irregular, and must be dismissed. ^°^ The petition to be admitted as a defendant should be accompanied by the proposed answer, but, not being so accompanied, the petition may be allowed to stand as the an- swer, all impertinent matters being stricken therefrom.^"® The petition may contain a statement of petitioner's view of the case, and pray, in addition to the right to intervene, the final relief desired. ^"^ The mere filing of a petition to be made a party in a pending suit does not operate to make the petitioner a party. An order should be entered making the intervening petitioner a party defendant.-"* There are cases, however, in which per- sons have been treated as parties, after having filed a petition for leave to come in, when no formal order admitting them ap- pears in the record ; but in all such cases it will be found that they have acted or been recognized as parties in the subsequent proceedings.^*^ The parties to an original bill are, in fact, par- ties to an intervening petition filed in the suit, and, even though 20= Blatchford v. Newberry, 100 111. 484. 204 Beach. Mod. Eq. Pr. § 576; Libby v. Norrls, 142 Mass. 246, 7 N. B. 920. 205 Ransom v. Winn, 18 How. (U. S.) 295; Poster, Fed. Pr. § 201. 206 Toler V. East Tennessee, V. & G. Ry. Co., 67 Fed. 168. 207 French v. Gapen, 105 U. S. 509, cited in Foster, Fed. Pr. § 201 Empire Distilling Co. v. McNulta, 46 TJ. S. App. 578, 77 Fed. 700. 208 Ex parte Jordan, 94 U. S. 248; Gall v. Gall (W. Va.) 40 S. E. 380 Doyle's Petition, 14 R. I. 55. 209 Ex parte Cutting, 94 TJ. S. 14; Myers v. Fenn, 5 Wall. (U. S.) 205 Perry v. Godbe, 82 Fed. 141. (SO) Ch. 3] PARTIES TO SUITS IN EQUITY. § 56 not made formal parties to the petition, are bound to take no- tice of sTick petition and the proceedings thereunder. ^^'^ If any of the original parties desires to contest the right to intervene, he must do so on the hearing of the petition. / After interven- \ tion, the new parties are treated as if they were originally par- ] ties to the suit.^^} The intervenor will be entitled to appeal from any interlocutory proceeding when final decree is en- tered.212 § 56. Objection for want of necessary parties. / If the want of proper and necessary parties is apparent on the face of the bill, the defect may be taken advantage of by de- mur rer.^^^/'' If the defect is not apparent on the bill, it may be propounded by way of plea, or it may be relied on in a general 210 McLeod v. New Albany, 24 U. S. App. 601, 66 Fed. 378. 211 French v. Gapen, 105 U. S. 509; Foster, Fed. Pr. (3d Ed.) § 201; Williams v. Morgan, 111 U. S. 684; Rice v. Durham Water Co., 91 Fed. 433. 212 Rice V. Durham Water Co., 91 Fed. 433; Williams v. Morgan, 111 U. S. 698. For consideration of right to intervene, and procedure in so doing, see Beach, Mod. Eq. Pr. §§ 571-581; Foster, Fed. Pr. (3d Ed.) § 201; Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 86 B'ed. 929. In West Virginia it is held that "when a party files his petition asking to he admitted as a party defendant in a pending suit in equity, in which no allegation is made naming or referring to him in any way, and no relief is prayed against him, and he is admitted to become such party defendant, he does not become a party in the cause until he has been made a parly by some allegation in the bill as amended." This, however, does not apply in a case where a party files his petition, making the parties to the suit parties thereto, and setting up claim to the subject-matter in controversy, when his peti- tion may properly be treated as an original bill. Cleavenger v. Felton, 46 W. Va. 249, 33 S. E. 117; Shinn v. Board of Education, 39 W. Va. 497, 20 S. B. 604; Sturm v. Fleming, 22 W. Va. 404; Skaggs v. Mann, 46 W. Va. 209, 33 S. E. 110; Gall v. Gall (W. Va.) 40 S. E. 380. 213 Cooper, Eq. PI. 185; Story, Eq. PI. § 236; Simms v. Richardson, 32 Ark. 297; Spear v. Campbell, 4 Scam. (111.) 424; Buda Foundry & Man- ufacturing Co. V. Columbian Celebration Co., 55 111. App. 381; Laughton V. Harden, 68 Me. 208; Farson v. City of Sioux City, 106 Fed. 278; Jes- sup V. Illinois Cent. R. Co., 36 Fed. 735. (81) Equity — 6 § 56 EQUITY PLEADING AND PRACTICE. [Ch. 3 answer.*^* It is not safe, in any case, to rely upon the non- joinder of parties as an objection to the hearing; for if the court can make a decree at the hearing that will do entire justice to all the parties, and not prejudice their rights, notwithstanding , the nonjoinder, it will not allow the objection to prevail./ The true course, therefore, is to take it by way of demurrer, when it is apparent on the face of the bill, or, if not apparent, by plea or by answer .^^'',/^ If the objection is insisted on only at the hearing, the court will often, if there are merits, allow the cause to stand over, in order to make the new parties, or, if the bill is dismissed, it should be without prejudice.^^® An objec- tion of nonjoinder for want of a party defendant, taken at the hearing, will not lie where, so far as the complainant's rights are concerned, the interest of such party is represented by the de- fendants, and the presence of the absent party is not necessary to a decree against the objectors. ^^^ Where the bill suggests a reason for not bringing all the parties interested before the court, and the defendant desires to make this objection by plea or an- swer, the excuse suggested in the bill must be controverted by specially pleading matter which shows it to be false.^^^ Where a suit is brought by a creditor of a fraudulent vendor to charge a judgment upon land formerly owned and fraudulently con- 2" Story, Eq. PI. § 236; Mitford, Bq. PL 280; Spear v. Campbell, 4 Scam. (111.) 424; Mitchell v. Lenox, 2 Paige (N. Y.) 280; Tobin v. Walkinshaw, McAll. 26, Fed. Cas. No. 14,068; Carey v. Brown, 92 U. S. 171; Story v. Livingston, 13 Pet. (U. S.) 359; Shlngleur v. Jenkins, 111 Fed. 452. 215 Story, Eq. PI. § 237; Florence Sewing Machine Co. v. Singer Ml'g. 'Co., 8 Blatchf. 113, Fed. Cas. No. 4,884; Smith v. Bartholomew, 42 Vt. CSS; Adaais v. Howard, 22 Fed. 656; Wallace v. Holmes, Blatchf. 65, Fed. Cas. No. 17,100. 2ie Story, Bq. PI. § 236; West v. Randall, 2 Mason, 181, Fed. Cas. No. 17,424. An objection for want of proper parties, taken on the hear- ing of a bill in equity, will not prevail unless such parties are neces- sary to the final determination of the cause. Van Doren v. Robinson, 16 N. J. Eq. 256. 217 Swallow V. Swallow's Adm'r, 27 N. J. Eq. 278. 218 1 Daniell, Ch. PI. & Pr. (6th Am. Ed.) 290, note; Alger v. Ander- son, 78 Fed. 729. (82) Ch. 3] PARTIES TO SUITS IN EQUITY. § 57 veyed by such vendor, and which has finally fallen into the hands of an innocent vendee, who is not made a party to the suit, and the objection to the absence of such vendee is raised for the first time at the final hearing, it rests in the discretion of the court to refuse to make a decree in the case.^^'/ An ob- jection for want of proper parties comes too late after the de- cree, unless it is manifest that the absent party is indispen- sable.^ ^V -^s a general rule, eoiii-ts are not inclined to consider favorably objections as to parties made on appeal ;^^^ and an objection for want of proper parties comes too late when first made on appeal, unless such parties are so intimately connected with the subject-matter- that a final decision cannot be made without materially affecting their rights. ^^^ § 57. Objection should point out proper parties. "^ It is the duty of the defendant, who objects to the bill for want of proper parties, to inform complainant by the pleadings who are the proper parties. ^^® It is not necessary to point out who are the proper parties by name, for this might be im- possible/ Taut the defendant should point out to the complainant the objection to his bill, and enable him to amend by adding the proper parties; and it is said that cases may occur of such a nature as even. to require the names to be stated, if the more general description is not sufficient to enable the complainant to 2i9Winans v. Graves, 43 N. J. Eq. 263, 11 Atl. 25; Wood v. Stover's Adm'rs, 28 N. J. Eg. 248. 220 Clayton v. Henley, 32 Grat. (Va.) 65. 221 McBurney v. Carson, 99 U. S. 567; Andrews v. Hobson's Adm'r, 23 Ala. 219; Burger v. Potter, 32 111. 66; Bridges v. McKenna, 14 Md. 258; Conwell v. Watkins, 71 111. 488. 222 Scott V. Bennett, 6 111. 646; Conwell v. Watkins, 71 111. 488; Lynch v. Rotan, 39 111. 14; Washburn-Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 109 111. 71; Farmers' Nat. Bank of Bushnell v. Sper- ling, 113 111. 273; Hitchcox v. Hitchcox, 39 W. Va. 607, 20 S. E. 595. 223 Story, Eq. PI. § 238; Houghton v. Kneeland, 7 Wis. 244; Green- leaf V. Queen, 1 Pet. (U. S.) 138; Neely v. Anderson, 2 Strob. Eq. (S. C) 262; Mannhardt v. Illinois Staats Zeitung Co., 90 111. App. 315. (83) § 59 EQUITY PLEADING AND PRACTICE. [Ch. 3 ascertain with reasonable certainty the names of the absent par- ties.^ ^4 § 58. Correction on court's own motion. The objection of the nonjoinder of necessary parties, in a clear case, should be raised and acted upon by the court on its own motion, when the parties fail to present the question.^^^ /Where necessary parties are not made, the court of its own mo- tion may refuse to proceed until they are brought in, and proper allegations made to bind them;^-® or may order the cause to stand over on leave to amend, or dismiss it without prejudice. ^^ § 59. Effect of misjoinder. / The mere misjoinder of formal parties will not oust the court of its jurisdiction in an equity cause. ^^* The objection that a person is improperly joined as a complainant is too late if taken for the first time at the hearing, and will then be disregarded, if it does not materially affect the propriety of the decree.^y The objection cannot be taken for the first time at the hearing that one was improperly made a defendant, when he has an- swered fully, tendering issues both of law and fact; and if no decree is rendered against him, his having been made a party ^ cannot affect the decree made against another defendant.^*" f' Where there is a misjoinder of parties complainant, either of ^-1 story, Eq. PI. § 238; Attorney General v. Jacteon, 11 Ves. 369^ Aaorney General v. Wyburgh, 1 P. Wms. 599; Marsh v. Wells, 89 111. App. 485; Portones v. Badcnoch, 132 111. 377, 23 N. E. 349; HuTDbard v. Manhattan Trust Co., 57 U. S. App. 730, 87 Fed. 51; Sheffield & B. C. I. & R. Co. V. Nevi^man, 41 U. S. App. 766, 77 Fed. 787. -■■i'- Alexander v. Horner, 1 McCrary, 634, Fed. Cas. No. 169. 2-'e Ear,l;s v. Green, 35 Ark. 84, 2=T Goodnian v. Penham, 16 Ala. 625. a-'-Wormley v. Wormtey, 8 Whea^ (U. S.) 421. =-3 Ne-nhouse v. J.'ilcs, 9 Ala.. 46:; Turner v. HarL 71 ITich. 128, 38 N. W. 890, 15 Am. SI, Rep, 2i?. 2".fi I-Iun!ey v. Hunley, 15 Ala. 91; Pixley v. Gould, 13 111. App. 56a.; Chipman v. Thompson, V/alk. (Mich.) 405; Stout v. Cook. 41 111. 447. Ch. 3] PARTIES TO SUITS IN EQUITY. § 60 the defendants may demur. -^^ Misjoinder of parties defend-i ant can only be taken advantage of by those improperly joined, ! and is fatal only against them.,^^.^' Tkus, where a contractor agrees to pay an employe a percentage of the profits of contracts with different municipalities, a bill by the employe joining the municipalities as co-defendants with the contractor for an ac- count, although subject to dismissal for multifariousness and misjoinder at the instance of one of the municipalities, is not so at that of the contractor. ^^^ /It is not safe to rely upon the misjoinder of parties as an objection to the hearing, for if the court can make a decree at the hearing which will do entire justice to all the parties, and not prejudice their rights, it will not then allow the objection to prevail. The proper course is to demur, when the objection is apparent on the face of the bill, or, if not apparent, raise the objection by plea or by answer.^^*< The court will dismiss a bill of its own motion, for misjoinder of complainants, when it appears that their separate interests are of such a nature that they are likely, in the future progress of the cause, to come into conflict, and thus transform the suit into a contest between the complainants. ^^^ § 60. Position of parties on record. y All persons having the same interest shoi^ld stand on the same side of the suit.^""^ 2/ But the court will not ordinarily dis- miss a suit on account of any mere informality in the position in which the parties are placed, as complainants or defendants, if all the parties interested are before the court, and a proper -ii Christian v. Croclter, 25 Ark. 327; Clarkson v. De Peyster, 3 Paige (N. Y.) 336; King of Spain v. De Machado, 4 Russ. 225. 2^^ Robison v. Robison, 44 Ala. .227; Ware v. Curry, 67 Ala. 274; Nor- wood V. Memphis & C. R. Co., 72 Ala. 563; Christian v. Crocker, 25 Ark. 327; Peoria, D. & E. Ry. Co. v. Plxley, 15 111. App. 283; Cherry V. Monro, 2 Barb. Ch. (N. Y.) 618. 233 Olds V. Regan (N. J. Eq.)"32 Atl. 827; Miller v. Jamison, 24 N. J. Eq. 41; 2 Daniell, Ch. PI. & Pr. (6th Ed.) 337, note 3. 234 story, Eq. PI. § 237; Wormley v. Wormley, 8 Wheat. (U. S.) 421. 235 Hendricljson v. Wallace's Ex'r, 31 N. J. Eq. 604; Jacob v. Lucas, 1 Beav. 436; Griffith v. Vanheythuysan, 15 Jur. 421. 236Contee v. Dawson, 2 Bland (Md.) 264. (S5) § 60 EQUITY PLEADING AND PRACTICE. [Ch. 3 case is proved for the interference of the court. ^^'^ / It is im- proper to put the same individual on opposite sides of the rec- ord,^, even though he sues in his ow^n right, and is made defend- ant in his capacity of personal representative.^^*/ Where a co- complainant who is a necessary party declines to prosecute the suit further as complainant, and moves the court to dismiss the bill as to him, upon motion of the other complainants the court will transpose him to the other side of the cause as a defendant.^y'' 257 West V. Bank of Rutland, 19 Vt. 403; Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 583; Piatt v. Oliver, 3 McLean, 27, Fed. Cas. No. 1,116; McArthur v. Scott, 113 U. S. 386; Parkman's Adm'r v. Aicardi, 34 Ala. 393; Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co., 93 Fed. 197. 238 Owens v. Crow, 62 Md. 491; Stein v. Stein, 80 Md. 306, 30 Atl. 703; Miller, Eq. Proc. 105; Henderson v. Sherman, 47 Mich. 267, 11 N. W. 153. 289 McConaughey v. Bennett's Ex'rs, 50 W. Va. 172, 40 S. E. 540; Sad- ler v. Taylor, 49 W. Va. 104, 38 S. E. 583. (86) CHAPTER IV. PLEADING AND PRACTICE IN EQUITY. § 61. In general. In every system of jurisj)rudenee some forms of proceeding must be established to bring the matters in controversy between the parties who are interested therein before the tribunal by which they are to be adjudicated.-' ■^Procedure in courts of equity is divided into two heads : (1) The pleadings in fram- ing a suit in equity; and (2) the practice in conducting a suit in equity.y Pleadings are the written allegations of the re- spective parties in the suit ; that is to say, the written statement of the complainant, containing in a due legal form the facts of the case on which he grounds his title to relief, or to some equi- table interposition or aid from the court, and the written an- swer or defense of the defendant to the charges of the complain- ant, either denying them altogether, or admitting them, and relying on some other matters, as a bar to the suit, and insist- ing upon the want of title in the complainant to the relief sought, or to the interposition or aid of the court, and the writ- ten reply thereto by the complainant.'' The practice in a suit in equity means all the various proceedings in the suit, whether by the positive rules or the usage of the court, and whether in- 1 Story, Bq. PI. § 1. 2 Story, Eq. PI. § 4. 3 Story, Eq. PI. § 4. A court of chancery cannot obtain jurisdiction save by the filing of written pleadings, and the extent of the jurisdic- tion in the case under consideration is determined by the contents of the pleadings. Kerfoot v. People, 51 111. App. 409. A learned judge has defined pleading to be the formal mode of alleging that on the record which should be the support or defense of the party on evi- dence. Read v. Brookman, 3 Term R. 159. Pleadings are not, as is sometimes supposed, the oral arguments of counsel, and especially their addresses to the jury or to the court. 4 Minor, Inst. Com. & St. Law (2d Ed.) 593 (548). (87) § 62 EQUITY PLEADING AND PRACTICE. [Ch. 4 terlocutory or otherwise, which may become necessary or proper for the due conduct thereof, from the beginning to the final de- termination thereof.* Pleadings in equity were probably bor- rowed from the civil law, or from the canon law, or from both. The early chancellors were for the most part, if not altogether, ecclesiastics, and many of them were bred up in the jurispru- dence of the civil and canon law, and, in the administration of their judicial functions in the court of chancery, naturally transferred into that court the modes of procedure with which they were most familiar. Hence, coincidences between plead- ings and practice in chancery and pleadings and practice in a Roman suit, and in an ecclesiastical suit, may be traced.^ § 62. Construction of equity pleadings. Pleadings in equity, although framed with a regard to cer- tainty and uniformity, were always, in their style and charac- ter, of a more liberal and less technical cast than at common law.^ It has been said that in pleading there must be the same strictness in equity as in law. However true this may be as to pleas in equity, it is not true in the framing of bills or an- swers, in respect to which more liberality prevails. It is said that certainty to a common intent is the most that the rules of equity ordinarily require in pleadings, for any purpose.''' A bill vsdll not be held bad on demurrer, merely because it contains many vag-ue and irrelevant averments, if, taketi as a whole, it ■t Story, Eq. PI. § 4. 'J Story, Eg. PI. § 14; Cooper, Eq. PI. 8, 9; 3 Reeve, Eng. Law, 380. 1 Story, Eq. PL § 25; Cooper, Eq. PI. 8. T Story, Eq. PL § 240; Hartwell v. Blocker, 6 Ala. 581; Carleton v. Leightoa, 3 Mer. G71; Carew v. Johnston, 2 Schoales & L. 305; Birely's Ex'r V. Staley, 5 Gill & J. (Md.) 432. For case occasioning this dis- pute, see Story v. Windsor, 2 Atk. 632; McCahe v. Cooney, 2 Sandf. Ch. (N. Y.) 314. In Story, Eq. PL § 240, certainty in pleadings at the common law is divided into three heads, applicable to different parts of the pleadings, and it is said: "The first kind is certainty to a common Intent, and that is sufficient in a bar which is to defend the party and to excuse him. The second is certainty to a certain intent In general, as in counts, replications, and other pleaamgs of the plain- tiff; that is, to convict the defendant, as in indictments, etc. The third is certainty to' a certain intent in every particular, as in estoppels (88) Ch. 4] PLEADING AND PRACTICE. g gl ■ states facts entitling complainant to relief.* It is a rule of equi- } ty, as well as in law, that, if a pleading admits equally well of j either of several constructions, that construction is to be adopted | which is least favorable to the pleader ;ythat is, the allegations in the bill, when they are in any degree equivocal, must be taken in the sense most unfavorable to the party whose pleading is the subject of construction.^'' Although a demurrer to a bill admits all facts which are well pleaded, yet this does not change the rule of pleading that the allegations in the bill must be taken most strongly against complainant.^^ § 63. Name and nature of pleading. ( The nature of a pleading in equity depends on its substance, regardless of the name given it by the pleader.^- / Thus, a court will look at the material averments of the bill, and from them determine its true character, and will grant the relief prayed for, if the averments show that the complainant is entitled to relief, and the prayer admits of it, notwithstanding the pleader may have given it a wrong name.^^ Whether a bill be an original bill or a bill of review is to be determined by its sub- stance — that is, by its allegations and object — ^rather than by the name the pleader gives it.-'* which are odious in the law. * * * it may perhaps be correctly af- firmed that certainty to a common intent is the most that the rules of equity 'ordinarily require in pleadings for any purpose." 8 Moore v. Harper, 27 W. Va. 362. 9 Williams V. First Presbyterian Soe. in Cincinnati, 1 Ohio ol. 478. 10 Peipho V. Peipho, 88 111. 438; Meanner v. Carroll, 46 Md. 193. See Lillard v. Mitchell (Tenn. Ch.) 37 S. W. 702. 11 Dunham v. Village of Hyde Park, 75 111. 371. An allegation in a bill which seeks relief against a judgment at law against complainant and another, as partners, "that by the records of said court there ap- pears to have bean an appearance entered by some one," must be con- strued to mean that the appearance was entered for both defendants. Stubbs V. Leavitt, 30 Ala. 352. 12 Sturm V. Fleming, 22 W. Va. 404; Carter v. Allan, 21 Grat. (Va.) 241; Bauer Grocer Co. v. Zelle, 172 111. 411, 50 N. E. 238; Pethtel v. McCullough, 49 W. Va. 520, 39 S. E. 199. 13 MoConnel v. Gibson, 12 IlL 128; Ridgely v. Bond, 18 Md. 433; Schenck v. Peay, Woolw. 175, Fed. Cas. No. 12,450. 14 Ex parte Smith, 34 Ala. 455. CHAPTER V. BILLS AND li^Ji^ORMATIONS IN EQUITY. § 64. In general. A private party commences his suit by preferring to the court having jurisdiction a written statement of his case, which is called a "bill in chancery," or a "bill in equity," which is in the nature of a petition to the court, and states therein the material facts, and concludes with a prayer for the appropriate relief, or other thing required of the court, and for the usual process against the parties against whom the relief or other thing is sought.^ ^ In the absence of statutory enactment, the I practice in the courts of chancery is to commence the suit in I all cases by filing the bill of complaint of the complainant, I which concludes by praying for the appropriate process, which is then issued accordingly.^/' This is still the practice in many jurisdictions, including the federal courts.^ Except in some early instances, bills have always been in the English language, and a suit preferred in this manner in the court of chancery was, therefore, commonly termed in England a "suit by Eng- lish bill," by way of distinction from proceedings in suits with- in the ordinary jurisdiction of the court, which, as also in the other courts of common law, were anciently in the French or Xorman tongue, and afterwards in the Latin.* / When the suit is instituted on behalf of the government, ot of those who partake of its prerogative, such as idiots and luna- 1 Story, Eq. PI. § 7; Mitford, Eq. PI. 7. = 4 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116) ; Cooper, Eq. PI. 17; Mitford, Eq. PI. 6, 46. 3 4 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); United States Equity Rule 11. * Story, Eq. PI. § 7; Mitford, Eq. PI. 8; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1237 (1121). (90) Ch. 5] BILLS AND INFORMATIONS. § b4 tics, or whose rights are imder its particular protection, such as the objects of a public charity, the matter of complaint is offered to the court by way of information given by the proper ; officer of the government, as by the attorney general or solicitor / general, and not by way of petition./ When the suit imme- diately concerns the rights of the government alone, these offi- cers proceed purely by way of information. ''When the suit | does not immediately concern the rights of the government, its officers depend on the relation of some person, whose name is I inserted in the information, and who is termed the "relator,'^ and who is considered as answerable to the court and to the ]3arties for the propriety of the suit and its conduct, and may be made responsible for costs, if the suit should appear to have been improperly instituted or conducted.^' If the relator has i a personal ground of complaint, it is incorporated with the in- ', formation, and they form together an information and bill.^ ^ A relator is not indispensable. The attorney general may pro- ceed in the suit without one.^ It is said that in informations on behalf of idiots and lunatics a responsible relator is neces- tary.?^ Informations differ from bills little more than in form \ and name, and therefore the same rules are, in general, appli- | cable to both."/ An exception exists with reference to informa- tions respecting charities, with relation to which the court will not require the Same strictness, either as to parties or as to pleadings, as is ordinarily required in bills. ■^*' A pleading = Mitford, Eq. PI. 7, 21-23; Story, Eq. PL § 8; Cooper, Eq. PL lOi- 107; Adams, Eq. (8th Ed. by Ralston) 538; Attorney General v. Moliter, 26 Mich. 444. Adams, Eq. (8th Ed. by Ralston) 539; Mitford, Eq. PL 23, 100; Cooper, Eq. PL 107; Attorney General v. Parker, 126 Mass. 221; Attor- ney General v. Central R. Co. (N. J. Eq.) 48 Atl. 347; Newark Plank Road & Ferry Co. v. Elmer, 9 N. J. Eq. 755. 7 Story, Eq. PL § 8; Mitford, Eq. PI. 22, note (d). 8 Attorney General v. Tyler, 2 Eden, 230, 1 Dickens, 378; Gorham v. Gorham, 3 Barb. Ch. (N. Y.) 33; 1 Daniell, Ch. PL & Pr. (4th Ed.) 14. 9 Story, Eq. PL § 8; Mitford, Eq. PL 21-24, 100; Cooper, Eq. PL 101- 107. 10 Story, Eq. PL § 8. (91) I 65 EQUITY PLEADING AND PRACTICE. [Ch. 5 filed as an information, thougli having many of the features of a bill, cannot be sustained as a bill when dismissed as an in- formation. 'The attorney general, failing by his information to make out a case on behalf of the ptiblic, cannot bring the relator forward as complainant at the hearing, as there can be no bill of complaint without a complainant.^ V The peculiari- ties of informations axe too few to justify any distinct exam- ination, and they will therefore be considered under the gen- eral head of bills.^^ § 65. Division of bills in equity. /' The most general division of bills is into those which are I original and those which are not original.^ ^ Original bills are 11 Attorney General v. Bvart Booming Co., 34 Mich. 462. 12 For cases considering informations, see Attorney General v. Pater- son & H. R. Co., 9 N. J. Sq. 527; State v. Lord, 28 Or. 529, 43 Pac. 474; Attorney General v. City of Dublin, 1 Blight (N. S.) 312; Attorney Gen- eral V. Eastlake, 45 Bng. Cli. 218; State v. Dayton & S. E. R. Co., 36 Ohio St. 434. 13 In Story, Eq. PI. § 16, after making the above division of bills, it is said: "There is another class of bills which is of a mixed nature, and sometimes partakes of the character of both of the oth- ers. Thus, for example, bills brought for the purpose of cross-litigation, or of controverting or suspending or reversing some decree or order of the court or of obtaining the benefit of a former decree, or of carry- ing it into execution, are not considered as strictly a continuance of the former bill, but in the nature of original bills. And if these bills require nev? facts to be stated, or new parties to be brought before the court, they are so far strictly of the nature of supplemental bills. For all the objects of the present work, this last class may be treated as in- cluded in that of bills not original." Some authorities divide the several kinds of bills into (1) original bills; (2) bills not original; and (3) bills in the nature of original bills, though occasioned by former bills. Mitford, Eq. PI. 33; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1243 (1126). Those making the three classifications include, under the head of bills not original, (1) supplemental bills, (2) bills of revivor, and (3) bills of revivor and supplement; and under the head of bills in the nature of original bills, (1) a cross bill, (2) a bill of review, (3)' a bill in the nature of a bill of review, (4) a bill to impeach a decree on the ground of fraud, (5) a bill to suspend or avoid the execution of a decree, (6) a bill to carry a decree into execu- tion, (7) a bill in the nature of a bill of revivor, and (8) a bill in the Ch. 5 J BILLS AND INFORMATIONS. § 66 those which relate to some matter not before litigated in the court by the same persons, standing in the same interests.^*,. As the name imports, such a bill is a bill which begins the suit or controversj'.^^ Bills not original are those which relate to some matter already litigated in the court by the same persons, and which are either an addition to or a continuance of an original bill, or both, or for the purpose of cross litigation, or of contro- ^'erting•, suspending, or reversing some decree or order of the court, or carrying it into execution.^ ^ § 66. Bivisions of original bills. Original bills praying relief have been ranked under three heads, namely : ( 1 ) Bills praying the decree or order of the court touching smie right claimed by the complainant in op- positicai to the defendant; (2) bills of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against whom the bill is ex- hibited, but prays the decree of the court touching the rights of those persons for the safety of the person exhibiting the bill ; (3) bills of certiorari, which pray a writ of certiorari in order to remove a cause from an inferior court of equity for the pur- pose of having it further proceeded in and decided in the su- jjerior court of equity to which the process is returnable. This last bill is of rare, if ernj, use in America, and was not of very frequent occurrence in England.^'' Original bills not praying relief are of three kinds: (1) Bills to perpetuate the testimony of witnesses; (2) bills to examine nature of a supplemental bill. 4 Minor, Inst. Com. & St. Law (2d iiid.) 12«2-1273 (1130-1141); Mitford, Eq. PI. 33-36; Mitford & T. PI. & Pr. in Eg. 128-130. To this latter group, it seems, should be added a supple- mental bill in the nature ol a bill of review. i-> Story, Eq. PL § 16; Cooper, Eq. PI. 43; Mitford, Eq. PI. 33. " Merwin, Eq. & Eq. PI. 519. " Storj% Eq. PL § 16; Mitford, Eq. PL 33. IT Mitford, Eq. PL 36, 37; Cooper, Bq. PL 43; Story, Bq. PL § 18. Formerly, bills of certiorari were not infrequent in Virginia, in order to remove causes at law or in equity from the county or corporation into the circuit court. 4 Minor, Inst. Com. & St. Law (2d Ed.) 1259 (1128). § 67 EQUITY PLEADING AND PRACTICE. [Ch. 5 witnesses de bene esse; (3) bills for the discovery of facts and documents within the knowledge or power of the person against whom the bill is exhibited.-^^ § 67. Division of bills not original. Bills not original are either (A) an addition to or continu- ance of an original bill; or (B) for the purpose of cross litiga- tion or of controverting or suspending or reversing some decree or order of the court, or carrying it into execution. Of the former kind are: (1) A supplemental bill, which is merely an addition to the original bill, to supply some defect in its frame or structure ; (2) a bill of revivor, which is a con- tinuance of the original bill, to bring some new party before the court, when, by death or otherwise, the original party has become incapable of prosecuting or defending the suit, and the suit is, as it is in equity technically called, "abated," — that is, suspended in its progress; (3) a bill both of revivor and sup- plement, which continues a suit upon an abatement, and sup- plies defects which have arisen from some event subsequent to the institution of the suit. Of the latter kind are: (1) A crass bill, exhibited by a de- fendant in the original suit against the complainant in that suit, touching some matter in litigation in the first bill; (2) a bill of review, which is brought to examine and reverse a de- cree made upon a former bill, which has been duly enrolled, and thereby become a record of the court ; (3) a bill to impeach a decree upon the ground of fraud ; (4) a bill to suspend the op- eration of a decree, in special circumstances, or to avoid it, on the grovmd of matter which has arisen subsequent to it; (5) a bill to carry a decree made in a former suit into execution; (6) a bill in the nature of a bill of review; (7) a bill in the nature of a bill of revivor ; ( 8 ) a bill in the nature of a supplemental bill; (9) a supplemental bill in the nature of a bill of review.^® "Story, Eq. PI. § 19; Mitford, Eq. PI. 36, 51, et seq.; Cooper, Eq. PI. 43. 19 Story, Eq. PI. §§ 20, 21; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1262-1273 (1130-1141); Mitford, Eq. PI. 34-36. (94) Ch. 5] BILLS AND INFORMATIONS. 68 Original bills praying relief are the most usual kind of bills, and tberefore will be first considered. The other classes of bills will be hereinafter considered. § 67a. Table illustrating classification of bills. EH 3 a (A) Bills praying relief. I K (1) Bill touching some right claimed by complainant In opposition to defendant. (Most usual kind of bill.) (2) Bill of interpleader. , (3) Bill of certiorari. (Rarely used.) (B) Bills not praying relief. (1) Bill to mony. perpetuate testi- (A) An addition to or continu- . auee of an original bill. (2) Bill de bene esse. (3) Bill of discovery. (1) Supplemental bill. (2) Bill of revivor. (3) Bill of revivor and supple- ment. (B) For purposes of cross litiga- tion, or to controvert, sus- pend, reverse, or carry in- to execution a decree. , (1) Cross bill. (2) Bill of review. (3) Bill to impeach a decree for fraud. (4) Bill to suspend or avoid exe- cution of a decree. (3) Bill to carry decree into ex- ecution. (6) Bill in nature of bill of re- view. (7) Bill in nature ot bill of re- vivor. (5) Bill in nature of a supple- mental bill. CJ) Supplemental bill in nature of bill of review. § 68. The several parts of a bill — In general. In early times, bills were, in their structure, of great sim- plicity and brevity. It appears from the ancient records in the Tower of London that in some of the most ancient bills the com- plainant did not pray any relief or any process, but merely (95) § 68 EQUITY PLEADING AND PRACTICE. [Ch. 5 pi'ayed the ciiaaicellor to send for the defendant, or to examine the defendant, and in others, in which relief was prayed, the prayer for process was various, — sometimes a writ of corpus mini causa, sometimes a subpoena, and sometimes other writs.^** As the system of equity jurisprudence began to be more liber- • ally administered, there arose a corresponding refinement in method, and a more elaborate exposition of every case; and-''Dy degrees the mere naked statement of facts was succeeded by a string of interrogatories, called the "interrogating part of the bill,'/' the object of which was to sift more thoroughly the con- science of the defendant as to those facts ; and 'afterwards there was added what is called the "charging part of the bill," inserted to meet the defense expected to be set ujj,' and to obviate its ef- fect by counter allegations which should destroy its validity. ^^ Lord Eldon said on this subject : "Formerly the bill contained very little more than the stating part. I have seen such a bill, with a simple prayer that the defendant may answer all the matters aforesaid, and then the prayer for relief. I believe the interrogating part had its birth before the charging part. Lord Kenyon never would put in the charging part, which does little more than unfold and enlarge the statement."^^ It is ordinarily laid down that a bill in equity consists of nine parts, namely: (1) The address to the chancellor, by his offi- cial designation; (2) the introduction; (3) the premises, or stating 2)art; (-t) the confederating part ; (5) the charging part ; (0) the jurisdiction clause; (7) the interrogating part; (8) the prayer for relief; (9) the prayer for process.^'^ However, all that was ever essential to a bill was a proper statement of the facts which the complainant intended to prove, the specification of the relief which he claimed, and an indication of the legal grounds of such relief.^* 2" Story, Eq. PI. §§ 11, 12; Cooper, Eq. PI. 3, 4. 21 Story, Eq. PI. § 12; Cooper, Eq. PI. 4. ^- Partridge v. Haycraft, 11 Ves. 574, =3 Story, Eq. PI. §§ 26-48; Comstock v. Herron, 45 Fed. 660; Super- visors of Fulton County v. Mississippi & "W. R. Co., 21 111. 367; Merwin, Eq. & Eq. PI. 519-522; Mitford, Eq. PI. 42-47. 2-t Langdell, Eq. PI. § 55, cited with approval in Comstock v. Herron, (96) Ch. 5] BILLS AND INFORMATIONS. § 69 § 69. Form and illustration of the several parts of an original bill. The several parts of an original bill will be illustrated by a bill brought by an infant, by his next friend, against the ex- ecutors of the last will of a deceased person, for the purpose of compelling them to pay over to him a legacy given him by such will. The several parts of the bill will be designated, for the sake of illustration. . [1. The address:] To the Honorable the Judges of the Circuit Court of Cook County, in the State of Illinois, in Chancery Sitting: [2. The introduction:] Humbly complaining, shows unto your honors your orator, John Doe, son of James Doe, of the city of Chicago, in said county of Cook, an infant under the age of twenty-one years, to-wit, of the age of about twelve years, by his said father and next friend. 45 Fed. 660, saying: "Originally, a bill in equity consisted of nine parts, of which there were five principal parts, to-wit, the statement, the charges, the interrogatories, the prayer of relief and the prayer of process. But all these, according to more recent authorities, may be dispensed with, excepting the stating part and the prayer for relief." "Of the nine distinct parts which make up a bill in chancery, properly framed, several of them are not considered as indispensable; as, in amicable suits, the fourth,' charging combination, etc., is always omit- ted, and so is the charging part often omitted, and is not indispensable in any case, for the stating part of the bill ought fully to unfola the complainant's case, and the charging part, in general, contains little more than an enlargement of the stating part. It is useful as antici- pating the defense, and is, in effect, a special replication. Nor is the interrogating part absolutely necessary, for if the defendant fully an- swers to the matters of the bill, with their attendant circumstances, or fully denies them, in the proper manner, on oath, — if the oath be not waived, — the whole object of the special interrogatories is com- pletely accomplished. They are, however, quite useful to sift the con- science of the defendant, and are quite universal in practice, except in amicable suits, and in cases where the oath is waived." Supervisors of Fulton County v. Mississippi & W. R. Co., 21 111. 367. See Report of Chancery Commissioners, 1826, Appendix 4, for consideration of bills in equity, and the views of Mr. Boll (an eminent chancery counsel) concerning bills in chancery. Parts of such report are set forth in Story, Eq. PI. §§ 38, 46, notes. (97) Equity— 7 § 69 EQUITY PLEADING AND PRACTICE. [Ch. 5 [3. The premises, or stating part:] That Richard Roe, of said city of Chicago, in said county of Cook, being seised and possessed of a considerable real and personal estate, did, on or about the 20th day of October, in the year of our Lord one thousand eight hundred and ninety-two, duly make and publish his last will and testament in writing, and thereby, amongst other things, devise and bequeath as follows [here recite such parts of the will as constitute the legacy the payment of which is sought to be compelled, which amounts to three thousand dollars] ; and that the said testator did, in and by said last will and testament, constitute and appoint Charles Jones and William Smith executors thereof; and that the said testator departed this life on or about the 25th day of March, in the year of our Lord one thousand eight hundred and ninety-six, not hav- ing revoked, altered, or annulled his said last will and testament, or his provision therein for the benefit of your orator as aforesaid, but leaving the said will, and every part and portion thereof, in full force and effect; and that upon or soon after the death of the said testator, to-wit, on or about the first day of May, in the year of our Lord one thousand eight hundred and ninety-six, the said Charles Jones and William Smith, the executors named in the said will, duly proved the said last will and testament in the probate court of the said county of Cook, and letters testamentary were granted to them by said court, and thereupon the said Charles Jones and William Smith took upon themselves the burden of the execution of the said last will and testa- ment, and, by virtue thereof, possessed themselves of all the said testa- tor's real and personal estate, goods and chattels, and effects, to the amount of thirty thousand dollars and upwards, which was more than sufficient to pay and satisfy all the said testator's debts, legacies, and funeral expenses. And your orator further shows unto your honors that he has, by his said father and next friend, several times since his said legacy of three thousand dollars was due, applied to the said Charles Jones and William Smith to have the same paid or secured for the benefit of your orator; and your orator well hoped that the said Charles Jones and William Smith would have complied therewith, as in equity and good conscience they ought to have done. [4. The confederating part:] But now so it is, may it please your honors, that the said Charles Jones and William Smith, combining and confederating together to and with divers other persons as yet to your orator unknown, but whose names, when discovered, your orator prays may be inserted herein as defendants, and they made parties hereto, with proper and apt words to charge them, how to injure and oppress your orator, the said con- federates respectively do now absolutely refuse to pay or secure the payment of your orator's said legacy, sometimes pretending that the said testator did not make any such will, or, if he did, that he revoked the same previous to his death, and at other times they admit that the said testator made such will and that they have proved the same, (98) Ch. 5] BILLS AND INFORMATIONS. § 69 and possessed themselves of all his real and personal estate; but then they pretend that the same was very small and inconsiderable, and not near sufficient to pay and satisfy his, the said testator's, just debts, legacies, and funeral expenses, and that they have applied and disposed of the same towards the satisfaction thereof; and at the same time the said confederates do respectively refuse to set forth and discover what the real and personal estate was, or the particulars whereof the same consisted, or the value thereof, or how much thereof they have so applied, and to whom, and for what, paid, or what has become there- of particularly. [5. The charging part:] Whereas, your orator expressly charges the truth to be that the said testator died seised and possessed of such real and personal es- tate to the full value aforesaid, and which was much more than suffi- cient to pay all the said testator's just debts, legacies, and funeral ex- penses, and that the said confederates, or one of them, have possessed and converted the same to their own use, without making any satis- faction to your orator for his said legacy; all of which actings, doings, and pretenses of the said confederates are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator. [6. Clause of jurisdiction:] In tender consideration whereof, and forasmuch as your orator is remediless in the premises at and by the strict rules of the common law, and is only relievable in a court of equity, where matters of this nature are properly cognizable and relievable. [7. Interrogating part:] To the end, therefore, that the said William Jones and Charles Smitb and their confederates may respectively full, true, direct, and perfect answers make, upon their respective corporal oaths, according to the best of their respective knowledge, information, and belief, to all and singular the matters and charges aforesaid [if an answer under oath is waived, omit the words in italics, and insert here, "but not under oath, the answer under oath being hereby waived"], and that as fully and particularly in every respect as if the same were here again re- peated, and they thereunto particularly interrogated; and more especial- ly that they may respectively set forth and discover, according to the best of their knowledge, remembrance, information, and belief, whether the said testator, Richard Roe, duly made, executed, and published such last will and testament in writing, of said date, and to such purport and effect as aforesaid, and thereby bequeathed to your orator such legacy of three thousand dollars as aforesaid, or any other, and what, last will, if any other, and what date, and to any other, and what pur- port or effect, particularly, and that they may produce the same, or probate thereof, to this honorable court, whenever and as often as there shall be occasion; and whether by such will or any other, and (99) § 69 EQUITY PLEADING AND PRACTICE. [Ch. 5 what will, the said testator appointed the said Charles Jones and Wil- liam Smith, or any other, and what, persons, executors of said last will and testament; and whether the said testator departed this life on or about the 25th day of March, in the year of our Lord one thou- sand eight hundred and ninety-six, or at any other, and what, time;- and whether he revoked, altered, or annulled the said last will and testament before his death, or the provision therein for the benefit of your orator, and when, and before whom, and in what manner, and whether the said Charles Jones and William Smith, or one, and which, of them, proved the said will, and when, and before whom, and in what manner; and whether they took upon themselves the burden of the execution thereof, and by virtue thereof possessed themselves of all tlio said testator's real and personal estate, goods, chattels, and effects. And that they respectively set forth whether your orator, by his said father and next friend, has not, several times since his said legacy became due and payable, applied to them to have the same paid, or secured to be paid, for his benefit, or to that effect; and whether the said Charles Jones and William Smith, or one, and which, of them, refused or neglected to comply with your orator's requests, and for what reasons, respectively, and whether such refusal was grounded on the pretenses hereinbefore charged, or any, and which, of them, or any other, and what, pretenses particularly. And that the said Charles Jones and William Smith may admit assets of their said testator come to their hands sufficient to satisfy your orator's said legacy, and subject thereto, and otherwise set forth a particular ac- count of the real and personal estate,, goods, and effects of which the , said testator died possessed or entitled unto, and the particulars where- of the same consisted, and the value thereof, and how much thereof they have applied in discharge of the said testator's debts, legacies, and funeral expenses, and to whom and for what paid, and what is he- come thereof particularly, and whether the said testator did not die possessed of real and personal estate, goods, and effects to tne value, of thirty thousand dollars and upwards, or what other value, and whether the same was not more than sufficient to pay and satisfy all the said testator's debts, legacies, and funeral expenses. [8. Prayer for relief:] And that the said Charles Jones and William Smith may be decreed to render and set forth to your orator a full, just, and true account of all such debts and sums of money as were really due and owing by and from their said testator at the time of his death, and to whom, by name, and on what security and securities, and how and on what account such debts were respectively contracted, and which of them now remain unpaid and unsatisfied, and that they may be compelled by a decree of this honorable court to pay your orator's said legacy of three thousand dollars, and that the same may be placed out at inter- est for your orator's benefit until your orator attains the age of twen- ty-one years, and that the said sum of three thousand dollars may then (100) Ch. 5] BILLS AND INFORMATIONS. § 70 be paid him, and that in the meantime the interest thereof may be paid to your orator's said father, James Doe, towards the support and maintenance of your orator, and that your orator may have such fur- tlier relief, or may have such other relief, as the nature of his case shall require, and as shall be agreeable to equity. [9. Prayer for process:] May it please your honors to grant unto your orator the writ of summons in chancery, issuing out of and under the seal of this hon- orable court, to be directed to the sheriff of said Cook county, com- manding him that he summon the said defendants, Charles Jones and William Smith, to be and appear before this honorable court on \.ae first day of the next May term thereof to be held at the court house in the county aforesaid, then and there to answer this bill, and further to stand to and abide such order and decree therein as shall be agreea- ble to equity and good conscience. And your orator shall ever pray, etc. John Doe, By James Doe, his Father and Next Friend. Thomas Edwards, Solicitor for Complainant.25 § 70. The address of the bill. / The address contains the appropriate and technical descrip- tion of the court, and" must be varied accordingly.^*/ In Eng- land, when addressed to the cliancellor, it was in the following -■"• The foregoing form is taken substantially from 2 Harrison, Ch. Pr. 265, 2 Barbour, Ch. Pr. 353-357. The form will also be found in 3 Enc. Forms, p. 418. Some diversity exists in fixing in the foregoing bill the point of division between the interrogating part and the prayer for relief. In 2 Barbour, Ch. Pr. 356, the last sentence above included in the interrogating part is assigned to the prayer for relief. The ciassification here adopted is used in Thompson, Eq. PI. & Pr. 6, and 3 Enc. Forms, 424. This form is used for the purpose of illustration, notwithstanding doubts calst upon the right of action in Bpler v. Epler, 13 111. App. 472. Under the ancient chancery practice, a legatee might file his bill in equity against the executor, to recover his legacy, whether the executor assented thereto or not; and it is said that his right to do so is not affected by the fact that he may maintain an action at law for the legacy, or enforce its payment in the probate court. 18 Am. & Eng. Enc. Law ■(2d Ed.) 803, citing Hedges v. Norris, 32 N. J. Eq. 193; Pearson v. Darrington, 18 Ala. 348; Poscue v. Foscue, 22 N. C. 65; Millsap v. Stanley, 50 Ala. 319; Colt v. Colt, 32 Conn. 422. 20 Story, Eq. PI. § 26; Mitford, Eq. PI. 42. (101) § 71 EQUITY PLEADING AND PRACTICE. [Ch. S form : "To the Eight Honorable, the Lord High Chancellor of Great Britain -^'^ in the federal courts it is, "To the Honorable the Judges of the Circuit Court of the United States within and for the District of , Sitting in Equity ;" in the Circuit Court of Cook County, Illinois, "To the Honorable the Judges of the Circuit Court of Cook County, in the State of Illinois, in Chancery Sitting ;" in ISTew York, when the chancery practice there obtained, it was, "To the Honorable James Kent, Chancellor of the State of ISTew York."2T/ A bill should not be entitled in a cause until it is filed, as until the bill is filed no cause is pending;. and if so entitled, as to parties, before filing, such part may be rejected as surplusage.^^ The title or cap- tion of the bill is no part of it, either in respect to its state- ments or parties.^/ § 71. The introduction. The second part of the bill is the introduction, which con- tains the names of the parties complainant, who are commonly called "orator," "orators," "oratrix," and "oratrixes,yaccording to their number and sex. In this part of the bill the names of the parties are not only given, but their places of abode, and the char- acter in which they sue, if they sue in autre droit. / The object of giving the names and descriptions of the parties is..tQ^nj,ble the court and the other parties in interest to_know whither .to_xe- ^sprtfor their costs, or to compel obedience to any order or pro- cess of the court, and to furnish distinct means of decision in all future controversies concerning the subject-matter and the iden- tity of the parties, and, in the federal courts, in order that it may appear that the court has jurisdiction, so far as it depends 27 For forms of addresses, see Story, Eq. PI. § 26; 4 Desty, Fed. Proc. (9tli Ed.) 440; Barton, Suit in Eq. 26, 27; Van Heythuysen, Bq. Drafts. 2; Sterrick v. Pugsley, 1 Flip. 350, Fed. Gas. No. 13,379; Cadwallader V. Evans, 1 Disn. (Ohio) 585. 28 Sterrick v. Pugsley, 1 Flip. 350, Fed. Cas. No. 13,379. 29Edney v. King, 39 N. C. 465; Spalding v. Dodge, 6 Mackey (D. C.) 289. (102) Cil_ 5-1 BILLS AND INFORMATIONS. § 72 on the citizenship of the parties.*" In this part of the bill are j sometimes contained the names and appropriate description of | the parties defendant./ This frequently results from either a rule of court or a statutory enactment.^^ The form of in- troduction varies with the circumstances of the particular case.^^ There seems to be some doubt as to the proper mode of taking advantage of a defect in the introductory part of the bill.*^ In New York it was held that an omission to state in a bill the complainant's occupation or address was not a ground of demurrer.** In Alabama it is held that the bill must state complainant's residence; otherwise, it is demurrable.*^ § 72. The stating part. The third part of the bill is the premises, or, as it is most usually styledy4he "stating part," which contains a statement 'i of the complainant's case, of the wrong of which he complainSj/ the names of the persons by whom done, and against whom he seeks redress.*^ The stating part of the bill should set out the soMitford, Eq. PL 42, 43; Story, Eq. PI. § 26; Jackson v. AsMon, 8 Pet. (U. S.) 148; Liddell v. Carson, 122 Ala. 518, 26 So. 133; Fruit- Cleaning Co. V. Fresno Home-Packing Co., 94 Fed. 845. See Hill v. Spencer, 196 111. 65, 63 N. E. 614. 31 United States Equity Rule 20; United States v. Pratt Coal & Coke Co., 18 Fed. 708; Harvey v. Richmond & M. Ry. Co., 64 Fed. 19. If the suit is in the circuit court of the United States, it is alleged that the complainant and defendant are respectively citizens of particular states. The usual form in such courts is: "A. B., of . and a cit- izen of the state of , brings this his bill against X. Y., of , and a citizen of the state of ; and thereupon your orator com- plains and says." 32 Precedents of forms of introduction will he found in 4 Desty, Fed. Proc. (9th Ed.) 443-447; 3 Bnc. Forms, 418-420; Curtis, Eq. Prec. 1-3. 33 Story, Eq. PI. § 26, note. 34 Gove V. Pettis, 4 Sandf. Ch. (N. Y.) 403. 35 Liddell v. Carson, 122 Ala. 518, 26 So. 133, citing 1 Daniell, Ch. PI. & Pr. (6th Am. Ed.) 357. In the federal courts, the failure to aver the citizenship of the parties, where jurisdiction is dependent on citi- zenship, may be raised by demurrer (Ketchum v. Driggs, 6 McLean, 13, Fed. Cas. No. 7,735), and the objection may be raised on appeal for the first time, though not considered in the court below (Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449). 36 Story, Eq. PI. § 27; Mitford, Eq. PI. 43; Cooper, Eq. PI. 9. (103) § 72 EQUITY PLEADING AND PRACTICE. [Ch. 5 essential facts upon which the complainant relies, succinctly, yet with all possible perspicuity, and without a,rgumentati¥.e' ness, and especially without any attempt at rhetorical embellish- ment.^^ x The stating part constitutes the real substance of the bill upon which the court is called to act./' If it has not the proper legal certainty, the defect, unless removed, may become fatal at every subsequent stage of the cause.^*/ It should nar- rate the facts and circiimstances on which the complainant seeks relief, and, to sustain the bill, they must be such as to entitle him to the relief sought.^® It must show by positive averments all the matters essential to relief, and such matters must not be made to depend on inference, nor be ambiguous, uncertain, or inconclusive.'"' The material facts must be so alleged as to put them in issue, or the relief cannot be granted, though the facts be proved.*^ /A general charge or statement of the mat- ter of fact is sufficient, and it is not necessary to charge minute- ly all the circumstances/which may conduce to prove the gen- eral charge, for these circumstances are properly matters of evi- dence which need not be charged in order to let them in as proofs.*^ The importance of framing the stating part of the bill carefully and accurately is apparent from the fact that it is held in some jurisdictions that a defect in the stating part cannot be supplied by the interrogating part ;**^- and that, if a 3T4 Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1122); Sands, Suit jn Ea. (2d Ed.) 20 et seq.; Hood v. Morgan, 47 W. Va. 817, 35 S. B. 9n. ' 3« Story, Eq. PI. § 27; Cooper, Eq. PI. 11; Flint v. Field, 2 Anstr. 543. •39 Barnard v. Cushman, 35 111. 451; Flanagan v. State Bank, 32 Ala. 508; Berry v. Pierson, 1 Gill (Md.) 234; Rorback v. Dorsheimer, 25 N. J. Eq. 516; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 58; Shep- ard V. Shepard, 6 Conn. 37; Pennebaker v. Wathan, 2 A. K. Marsh. (Ky.) 315. 40 Seals V. Robinson, 75 Ala. 363. 41 Harding V. Handy, 11 Wheat. (U. S.) 103; Pelham v. Edelmeyer, 15 Fed. 262 ; Cleaver v. Matthews, 83 Va. 801, 3 S. B. 439 ; Barnett v. Barnett, 86 111. App. 625; Dorn v. Gender, 171 111. 362, 49 N. E. 492. 42 story, Eq. PI. § 28; Chicot v. Lequesne, 2 Ves. Sr. 317; Winebren- ner v. Colder, 43 Pa. 244. isCowIes V. Buchanan, 38 N. C. 374; Parker v. Carter, 4 Munf. (Va.) (104) Q^ 5-1 BILLS AND INFORMATIONS. S 73 plea is put in, the validity of the plea will be decided with ref- erence to the stating part of the bill, and not with reference to the interrogating part, if it varies from it/^ § 73. The confederating part of the bill. The fourth part of the bill contains a general allegation or ' charge of confederacy between the defendants and other per- sons to injure or defraud the complainant. Among the caiises which gave rise to the extraordinary juris- diction of the court of chancery in England was the combina- tion and confederacy of powerful lords to overawe or pervert the ordinary administration of justice. It is said that this part of the bill has reference to that f act.*^ The practice is also said to have arisen from the erroneous idea that without it parties could not be added to the bill by amendment.^® It is quite superfluous, and, although it is frequently inserted/ it isji-ea'ted as mere surplusage^ and it is said that the general charge of "coinbTiTation need not be denied or resi3onded to, in the answer, when charged in the bill. *'^/^ If combination or confederacy is meant to be relied on as a ground of equitable jurisdiction, it 273, 6 Am. Dec. 513; Beall v. Blake, 10 Ga. 449. See, also, ^V'rife-. v. Dame, 22 Pick. (Mass.) 55. ** Story, Eq. PI. § 27, citing Clayton v. Winchelsea, 3 Younge & C. Excli. 683. The equity of the complainant's case shoula be fully averred in the stating part; for if it should be stated only in the charging part, and thus consist only in the pretenses, the charges in answer to those pretenses, and the admissions, it has been held not to be suffi- cient, for there ought first to be an equitable case averred, and then the pretenses and charges may properly be introduced to support it. Story, Bq. PI. § 32, citing Flint v. Field, 2 Arstr. 543; Cooper, Eq. PI. 11. It is said that perhaps the principle just laid down is too broadly stated, and that, if the material facts are specifically averred, there doss not seem to be any positive rule of law which requires those facts to be averred In the stating part of the bill, and precede what is tech- nically called the "charging part of the bill." Story, Eq. PI. (9th Ed.) § 32a, citing Houghton v. Reynolds, 2 Hare, 264. i-^i Minor, Inst. Com. & St. Law (2d Ed.) 1239 (1122). 40 Story, Eq. PI. § 29; Mitford, Eq. PI. 40. i^ Mitford, Eq. PI. 41; Story, Eq. PI. § 29; Oliver v. Haywood, 1 Anstr. 82. § 74 EQUITY PLEADING AND PRACTICE. [Ch. 5 can be only in special cases, and then it must be specially, and not generally, charged.^f § 74. The charging part of the bill. The fifth part of the bill is called the "charging part," and is the statement of any anticipated defense, in order to show its futility.. It is sometimes used for the purpose of obtaining a discovery of the defendant's case, or to put in issue some matter which it is not for the interest of the complainant to admit, for which purpose the charge of the pretense of the defendant is held sufficient.^V It has the further advantage of doing away with the necessity of a special replication, which was formerly used in rebuttal of the defense anticipated, and in laying the foundation for interrogatories and a discovery which is sought in reference to the matter of such defense./ Thus, if a bill is filed on any equitable ground by an heir who apprehends his ancestor has made a will, he may state his title as heir, and, al- leging the will by way of pretense on the part of defendants claiming under it, make it a part of his case without admitting it; for a charge in the billof a definite pretense that a certain fact has taken place, siifiiciently puts the fact in issue.^° Until a comparatively recent day, the charging part constituted no distinct allegation of the bill.^V^ The charging part is often omitted, and does not seem indispensable in any case. The rules of the supreme court of the United States leave it optional to insert it or not.^^'' It has been held that a defect in the charging part cannot be supplied by a subsequent interrogatory, and the interrogatories are to be construed by the charging parf 2 Story, Eq. PI. § 44, note; 2 Barbour, Ch. Pr. 357. The form of prayer for subpoena in many jurisdictions is much simplified. In Virginia it is couched in the following terms: "And may a sum- mons issue against the several defendants hereinbefore named." 4 Minor, Inst. Com. & St. Law (2d Ed.) 1241 (1125). The form of the Illinois prayer for process has been inserted in the form of bill herein- before set forth. 93 Curtis, Bq. Prec. 8. (114) eh. 5] BILLS AND INFORMATIONS. § 82 § 82. Signing the bill. / Every bill, whether original or not, must have the signature of counsel annexed to it./ This rule appears to have been adopt- ed at an early period, — at least as early as the time of Sir Thomas More.®* Except in cases where an injxinction is asked for, or a discovery or an answer on oath is required from the defendant, bills are usually signed by the solicitor alone, and not by the party."^ / If the complainant sue in person, however, it must be signed by him; and in that case it seems that the bill need not be signed by counsel.''** In a suit by a corporation, the bill, if it is not a sworn one, is signed by the solicitor for the corporation. In case the bill is to be sworn to, it should be signed by the officer making the oath.®'' A bill in the name of a municipal corporation, signed by counsel, need not have the city seal affixed.®* The requirement that a bill must be signed by counsel has become obsolete in practice in those jurisdictions where all solicitors are also counselors; and a bill signed by the solicitor is not demurrable for want of a signature of one as counsel.®® A signature in the firm name of two counselors who are copartners is sufficient.-""' If a bill purports to be brought by ten persons named therein as complainants, but is - in fact signed by only two, without any signature either of them- selves or of counsel in behalf of the others, it is the bill of those 8* Story, Eq. PI. § 47; Cooper, Eq. PI. 18; Mitford, Eq. PI. 48; Martin V. Palmer, 72 Vt. 409, 48 Atl. 655; Dever v. Willis, 42 W. Va. 365, 26 S. E. 176. 85 1 Barbour, Ch. Pr. 43; Hatch v. Eustaphieve, 1 Clarke Ch. (N. Y.) 63. asi Barbour, Ch. Pr. 44; Martin v. Palmer, 72 Vt. 409, 48 Atl. 655. 97 1 Barbour, Ch. Pr. 44; City of Moundsville v. Ohio River R. Co., 37 W. Va. 92, 16 S. E. 514; Georges Creek Coal & Iron Co. v. Detmold, 1 Md. Ch. 371. as City of Moundsville v. Ohio River R. Co., 37 W. Va. 92, 16 S. E. 514. 89 Henry v. Gregory, 29 Mich. 68. A bill will not be dismissed because not signed, where the signature of counsel appears only on the back. Litton V. Armstead, 68 Tenn. 514; Dwight v. Humphreys, 3 McLean, 104, Fed. Cas. No. 4,216. 100 Hampton v. Coddington, 28 N. J. Eq. 557. (115) § 83' EQUITY PLEADING AND PRACTICE. [Ch. 5 two only.^"^/ If a bill is not signed by counsel, it will be stricken from the files. ^"^ '' It is also said that it may be de- murred to for that cause.^°^/ If the signature by counsel to the bill is omitted, the court may, by order, grant leave to sign the bill."f ' § 83. Swearing to the bill. / As a general rule, bills need not be verified.^"^ There are, however, exceptions to this rule in certain instances. Where the bill seeks a discovery of deeds or writings/and prays relief founded on the deeds or writings of which a discovery is sought, if the relief so prayed be such as might be obtained at law, if the deeds or writings were in the custody of the complainant, the complainant must annex to the bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendant.^"® 101 Chapman v. Banker & Tradesman Pub. Co., 128 Mass. 478. 102 1 Barbour, Ch. Pr. 44; Roach v. Hulings, 5 Cranch, C. C. 637; Fed. Cas. No. 11,874; Eveland v. Stephenson, 45 Mich. 394, 8 N. W. 62; Gove V. Pettis, 4 Sandf. Ch. (N. Y.) 403; Carey v. Hatch, 2 Edw. Ch. (N. Y.) 190; Partridge v. Jackson, 2 Edw. Ch. (N. Y.) 520. 103 1 Barbour, Ch. Pr. 44; Kirkley v. Burton, 5 Madd. 378; Dillon v. Francis, 1 Dickens, 68; French v. Dear, 5 Ves. 547; Wright v. Wright, 8 N. J. Eq. 143. See, however. Keen v. Jordan, 13 Fla. 333. 104 Carey v. Hatch, 2 Edw. Ch. (N. Y.) 180; Partridge v. Jackson, 2 Edw. Ch. (N. Y.) 520; Sill v. Ketchum, Har. (Mich.) 423. For cases in- volving signing bills, see Stinson v. Hlldrup, 8 Biss. 376, Fed. Cas. No. 13,459; Burns v. Lynde, 6 Allen (Mass.) 305. 106 4 Minor, Inst. Com. & St. Law (2d Ed.) 1276 (1144); Labadie v. Hewitt, 85 111. 341; Moore v. Cheeseman, 23 Mich. 332; Carman v. Hurd, 1 Pin. (Wis.) 619; Jerome v. Jerome, 5 Conn. 352; Baker v. Atkins, 62 Me. 205; Waller v. Shannon, 53 Miss. 500. 100 Cooper, Eq. PI. 61; Mitford & T. PI. & Pr. in Eq. 153; Story, Eq. PI. § 477; March v. Davison, 9 Paige (N. Y.) 580; Mitford, Eq. PI. 54,' 124, 125; Loker v. RoUe, 3 Ves. 4; Ryves v. Ryves, 3 Ves. 343; Hook v. Dor- man, 1 Sim. & S. 227. A bill for discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded on them, does not require such an affidavit. Mitford & T. PI. & Pr. in Eq. 153 219; Cooper, Eq. PI. 61; Godfrey v. Turner, 1 Vern. 247; Whitchurch v.' Golding, 2 P. Wms. 541; Anonymous, 3 Atk. 17; Dinsmore v Grossman 53 Me. 441. See post, § 811. ' (116) Q^_ 5-] BILLS AND INFORMATIONS. § 83 Where by a bill is soiigbt the discovery and payment of a lost or suppressed instrument, upon which, but for the loss or sup- pression, there would be a complete remedy at law, the bill will be demurrable, unless there is annexed to it an affidavit of the _ loss.^"'' Bills framed on the ground that the testimony of a ./ witness may be lost by his death, or departure from the realm^ ,' before the case can be investigated in a court of law, must b-i ' verified.^"^ A bill of review, brought upon the discovery of \ new matter, should be verified."'' So should bills of inter- | pleader,"" and bills praying a writ of ?i6 exeai/" and a sup- plemental bill in the nature of a bill of review."^ When a re- straining order or preliminary injunction during the pendency of an action, and before final hearing, is sought, the bill must be sworn to,^^^ but it need only be verified when a restraining order or preliminary injunction is sought; and where the only relief prayed for is an injunction on the final hearing, no veri- ,j fication of the bill is required.^^* Where a corporation is com-'| plainant, the bill, from the necessity of the case, must be veri- \ loT story, Bq. PI. § 478; Linconfelter v. Kelly, 6 J. J. Marsh. (Ky.) 339; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260. See, however, Cabell's Ex'rs v. Megginson's Adm'rs, 6 Munf. (Va.L202. 108 Story, Eq. PI. §§ 304, 309; Angell v. Angell, 1 Sim. & S. 83; Laight V. Morgan, 1 Johns. Gas. (N. Y.) 429; Mitford & T. PI. & Pr. in Eq. 150, 242; Suffolk v. Green, 1 Atk. 450; Shirley v. Ferrers, 3 P. Wms. 77. 109 Story, Eq. PI. § 412; Standish v. Radley, 2 Atk. 178; Cooper, Eq. PL 92; Mitford & T. PI. & Pr. in Eq. 182. 110 Errington v. Attorney General, Bunh. 303 ; Manks v. Holroyd, 1 Cow. (N. Y.) 691; Bdrington v. Allsbrooks, 21 Tex. 186; 2 Barbour, Ch. Pr. 121; Shaw v. Coster, 8 Paige (N. Y.) 339; Metcalf v. Hervey, 1 Ves. Sr. 248; Ammendale Normal Inst. v. Anderson, 71 Md. 128, 17 Ati. 1030; Bignold V. Audland, 11 Sim. 23. See post, § 777. 111 Rice V. Hale, 5 Cush. (Mass.) 238; Adams, Eq. 360. 11-; Mitford & T. PL & Pr. in Eq. 188. 113 Hawkins v. Hunt, 14 111. 42; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1276 (1144) ; Merwin, Eq. & Eq. PL 522. 11* Hawkins v. Hunt, 14 111. 42; Sand Creek Turnpike Co. v. Robbins, 41 Ind. 79; Robinson v. Baugh, 31 Mich. 290. Where a preliminary in- junction is asked upon facts not alleged to be within the knowledge of the defendant, the bill must be sworn to positively, either by the com- plainant or by some person from whom information of the facts was derived. Paterson v. Bangs, 9 Paige (N. Y.) 627. (117) § S3 EQUITY PLEADING AND PRACTICE. [Ch. 5 fied by some officer or agent of the corporation.^ ^5-' Bills which are to be verified by the oath of an agent or attorney for com- plainant should be drawn in the same manner as bills which are to be sworn to by the complainant himself, stating those mat- ters which are within the personal knowledge of such agent or attorney positively, and those which he has derived from the in- formation of others should be stated or charged upon the in- formation and belief of the complainant, f The oath of the agent or attorney verifying the bill should state that the agent has read it or heard it read, and knows the contents thereof, and that the same is true of his own knowledge,/except as to the matters which are therein stated to be on the information and belief of the complainant, and that as to those matters the de- ponent believes it to be true.^^® Where it is intended to apply for an injunction or a ne exeat upon a bill sworn to by an agent or attorney of the complainant/if any material allegation or charge that is necessary to be sworn to positively, to authorize the issuing of the injunction or ne exeat, is not within the per- sonal knowledge of the agent or attorney, he should, in addition to his own verification, annex the affidavit of the person from whom he derived his information, swearing that he knows such allegation or charge to be true.^^'^ A verification that a bill is true to the knowledge of complainant, "except as to the mat- ters stated therein on information and belief," is defective./^* The verification of a bill praying a discovery, and the appoint- ment of a receiver, by complainant, as being true "to the best of his knowledge, information, and belief," is insufficient.^^* 115 Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305. 118 1 Barbour, Ch. Pr. 44, 45; Banli; of Orleans v. Skinner, 9 Paige (N. Y.) 305; Pollard v. Southern Fertilizer Co., 122 Ala. 409, 25 So. 169. 117 1 Barbour, Ch. Pr. 48; Bank of Orleans v. Skinner, 9 Paige (N. Y.) 305. 118 Stirlen v. Neustadt, 50 111. App. 378; Brabrook Tailoring Co. v. Belding, 40 111. App. 326; Chicago Exhibition Co. v. Illinois State Board of Agriculture, 77 111. App. 350; Schilcsr v. Brock, 124. Ala. 626, 27 So. 473. 119 Burgess v. Martin, 111 Ala. 656, 20 So. 506; Heffron v. Rice, 40 III. App. 244; Guyton v. Terrell (Ala.) 31 So. 83. (118) Ch. 5] BILLS AND INFORMATIONS. § 85 Where, on demurrer, it appears that the bill is not properly verified, it is proper to allow the amendment of such verifica- tion.120 § 84. Form of jurat. State of ss. County of On this day of , A. D. , before me personally appeared the above-named A. B., wlio, being duly sworn, deposes and says that he is the complainant named in the foregoing bill [if it Is signed by him, add the words "subscribed by him"; if made by some one else, state the relationship of the person verifying the bill to the complainant] ; that he has read [or has heard read] said bill, and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated to be on his information or belief, and as to those matters he believes it to be true. A. B. Subscribed and sworn to before me, this day of . A. D. C. D., Notary Public.121 § 85. General rules concerning bills — Certainty. Having considered the frame of the bill, a more particular consideration of some of the general rules and principles ap- plicable to the structure of original bills for relief seems proper. The bill must have a reasonable certainty, but need not set out the matter with that decisive and categorical certainty which is requisite in pleading at common law. -'^^z' It must be certain to a common intent, in respect to the case intended to be made by it, and the allegations in aid thereof,^ ^^ and should state the 120 Shannon v. Fechheimer, 76 Ga. 86. It is said that, since a de- murrer admits the facts, it is immaterial whether an affidavit is at- tached to the bill or not. Keach v. Hamilton, 84 111. App. 413. 121 The verification must be made before some duly-authorized officer. 1221 Barbour, Ch. Pr. 38; Story, Eq. PI. § 240; Fitzpatrick v. Beatty, 6 111. 454; Chambers v. Chalmers, 4 Gill & J. (Md.) 420, 23 Am. Dec. 572; Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 21 Pa. 131; Taylor v. Holmes, 14 Fed. 498; Einstein v. Schnebly, 89 Fed. 540. 123 Hartwell v. Blocker, 6 Ala. 581; Story, Eq. PI. § 240; Polk v. Rose, 25 Md. 153, 89 Am. Deo. 773. (119) § 85 EQUITY PLEADING AND PRACTICE. [Ch. 5 riglit, title, or claim of the complainant with accuracy and clear- ness, and should, in like manner, state the injury or grievance complained of, and the relief asked of the court. /The other material facts ought to be plainly, yet succinctly, alleged, and with all necessary and convenient certainty as to the essential circumstances of time, place, manner, and other incidents.-^^^ 'It should state the case so completely and circumstantially as to enable the chancellor from its face to determine whether he has jurisdiction, and to decide precisely what decree to render for complainant, supposing his bill to be true, unless the facts are out of complainant's knowledge, or are retained in the posses- sion of his adversary, so that a disclosure becomes necessary, or some other circumstance exists which may justly form an ex- ception to the rule.-^^^. It is not enough merely to aver, in vague and general terms, that the defendant is liable to the com- plainant, and that he is entitled to a decree against the defend- ant.^^^ To entitle a complainant to call for an answer to a statement in the bill, it must be introduced as a positive allega- tion, and not by way of recital.^^'' Uncertainty may arise in several ways: (1) The case in- tended to be made by the bill may be vague or uncertain. (2) Such case may be certain, but the allegations of the bill may be so vague and general as to constitute uncertainty. (3) Some material facts may be stated with certainty, and others with such indistinctness or incompleteness as to render insufficient 124 1 Barbour, Ch. Pr. 38; Mitford, Bq. PI. 41; Cooper, Eq. PI. 5; Story, Eg. PI. § 241; Houghton v. Reynolds, 2 Hare, 266; Warner v. Warner, 33 Miss. 547; Lockhart v. Leeds (N. M.) 63 Pac. 48; Corbus v. Alaska Treadwell Gold-Min. Co., 99 Fed. 334. 125 Pennebaker v. Watban, 2 A. K. Marsh. (Ky.) 315; Perkins v. Sanders, 56 Miss. 733; Loggie v. Chandler, 95 Me. 220, 49 Atl. 1059; Savage v. Worsham, 104 Fed. 18. 126 Smith V. Gill, 52 Miss. 607. i27Mcrntyre v. Trustees of Union College, 6 Paige (N. Y.) 239; Gram V. Stebbins, 6 Paige (N. Y.) 124. See, however. Investor Pub. Co. of Massachusetts v. Dobinson, 72 Fed. 603. (120) Ch. 5] BILLS AND INFORMATIONS. § 87 those witli whicli they are connected, or upon which they de- pend.^ ^* § 86. Allegations within and without complainant's knowledge. It is a general rule that whatever is essential to the rights of the complainant, and is necessarily within his knowledge, ought to be alleged positively and with precision. On the other hand, the claims of the defendant may be stated in general terms. If matter essential to the determination of the complainant's claims is charged to rest in the knowledge of the defendant, or must I necessity be within his knowledge, and is consequently the subjLi^t of a part of the discovery sought by the bill, a precise allegation thereof is not required. Thus, in a bill for partition, it is sufficient if it is alleged that the defendant is seised in fee of, or otherwise entitled to, the other remaining undivided parts of the premises, though such an allegation by the complainant of his own title would be insufficient.-^^® But even when the fact rests within the knowledge of the defendant, if it consti- tutes a material allegation in the bill, and is the foundation of the suit, it must be clearly stated. Thus, if the bill seeks a discovery whether defendants are assignees, etc., it is insufficient to allege that the complainant has been informed that the de- fendants are assignees, but the fact must be positively aver- red.130 § 87. Bill must state sufficient facts. A bill must state a case within the appropriate jurisdiction 128 story, Eq. PI. § 242; Houghton v. Reynolds, 2 Hare, 264; Wigram, Disc. (2(1 Ed.) 131, 136; Hartwell v. Blocker, 6 Ala. 581. See East India Co. v. Henchman, 1 Ves. Jr. 287; Ryves v. Ryves, 3 Ves. 343; Balls V. Margrave, 3 Beav. 284; Jones v. Jones, 3 Mer. 161; Frietas v. Dos Santos, 1 Younge & J. -574. 120 story, Eq. PI. § 255; Mitford, Eq. PI. 41, 42; Baring v. Nash, 1 Ves. & B. 551; Lytle v. Breckenridge, 3 J. J. Marsh. (Ky.) 663; XJxbridge V. Staveland, 1 Ves. Sr. 56; Aikin v. Ballard, Rice Eq. (S. C.) 13; Wat- son V. Murray, 23 N. J. Eq. 257; Towle v. Pierce, 12 Mete. (Mass.) 329, 46 Am. Dec. 679; Morgan v. Smith, 11 111. 194. 130 Story, Eq. PI. § 256; Uxhridge v. Staveland, 1 Ves. Sr. 56. (121) § 87 EQUITY PLEADING AND PRACTICE. [Ch. 5 of a court of equity. If it fails in this respect, the error is fatal in every stage of the case, and cannot be cured by any waiver or course of proceedings by the parties, for consent cannot con- fer a jurisdiction not vested by law.^^^ A want of allegations in the bill to sustain the relief sought is as fatal as the lack of proof to show complainant entitled to such relief.^ ^^ No facts are properly in issue unless charged in the bill, and no proofs can be generally offered of facts not in the bill, nor can relief be granted for matters not charged, although they may be ap- parent from other parts of the pleadings and the evidence, for the court pronounces its decree secundum allegata et probaf'' The reason for this is that the defendant may be apprised b- ..o bill what the suggestions and allegations are against which he is to prepare his defense.^^^ Thus, where a bill sets up a case of actual fraud, and makes that the ground of the prayer for relief, the complainant is not, in general, entitled to a decree by establishing some one or more of the facts quite independent of fraud, which might of themselves create a case under a dis- tinct head of equity from that which would be applicable to the case of fraud originally stated.^^* ' It is, however, no objection that the relief established by the proof is broader and stronger than that stated in the bill/or that grounds of relief not contained in the bill are established in evi- 1311 Barbour, Ch. Pr. 39; Story, Eq. PL § 10. 132 Gernt v. Cusack, 106 Tenn. 141, 59 S. W. 335; Quinn v. McMahan, 40 111. App. 593; Bracken v. Preston, 1 Pin. (Wis.) 584, 44 Am. Dec. 412; 1 Barbour, Cb. Pr. 39; Crocket v. Lee, 7 Wbeat. (U. S.) 522; Norburg V. Meade, 3 Bllgh, 211; Hooper v. Strahan, 71 Ala. 75; Morris v. Tillson, 81 111. 607; Small v. Owings, 1 Md. Cb. 363; Lebigh Valley R. Co. v. McFarlan, 30 N. J. Eq. 180; Kilgore v. Redmill, 121 Ala. 485, 25 So. 766. 133 Story, Eq. PI. § 257; Cooper, Eq. PI. 5, 7; Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Pigg v. Corder, 12 Leigh (Va.) 69; Moore v. Crawford, 130 U. S. 122; Fitz- patrick v. Beatty, 6 111. 454; Keen v. Maple Shade Land & Improvement Co. (N. J. Eq.) 48 Atl. 596; Hood v. Morgan, 47 W. Va. 817, 35 S. E. 911; Cleaver v. Matthews, 83 Va. 801, 3 S. E. 439. 134 Hoyt V. Hoyt, 27 N. J. Eq. 399. See, also, Bolgiano v. Cooke, 19 Md. 375. (122) Ch. 5] BILLS AND INFORMATIONS. § 88 dence, provided the decree is warranted by the charges and prayers of the bill, and the bill sustained by the evidence.^^^ § 88. Amount involved must not be beneath the dignity of the court. The case stated in the bill must not only be of a nature prop- erly within the cognizance of a court of equity, but the amount claimed must be such as not to be beneath its dignity./ Courts of equity sit only to administer justice in matters of grave in- terest to the parties. In England the rule of the courts of equity was not to entertain a bill under the value of ten pounds ster- ling, or forty shillings per annum in land, except in special cases, such as in cases of charity, in cases of fraud, and in cases of bills to establish a right of a permanent and valuable char- acter, such as in the case of six shillings claimed to be due, as an Easter offering, or of a perpetual rent charge of five shil- lings.-'^® This rule was promulgated in a formal manner in Lord Bacon's ordinance, declaring that "all suits under the value of ten pounds are regularly to be dismissed." The ex- ceptions to the rule were probably established at a later date.^^' The same rule is said to prevail in courts of equity in Amer- ica. ■'^*® ' It is held that, as a rule, the amount involved must not be under fifty dollars ;^5^ and it is held that where a city lot is assessed at only $2.50 for a street improvement, and sold for nonpayment, and the owner could redeem from the same by paying $3.90, the maxim, De minimis non curat lex, applies, and a court of equity will not restrain the execution of a deed, pursuant to such sale, if invalid.^*'' 135 Ryerson v. Adams, 6 N. J. Eq. 618, cited witli approval in Beacli, Mod. Eq. Pr. § 100. 136 Story, Eq. PI. § 500; Cooper, Eq. PI. 165; Mitchell v. Tighe, Hopk. Ch. (N. Y.) 119. See Wilkinson v. Stitt, 175 Mass. 581, 56 N. E. 830. 137 Story, Eq. PL § 501; Cocks v. Foley, 1 Vern. 359. 138 Story, Eq. PL § 502. See Swedish Evangelical Lutheran Church V. Shivers, 16 N. J. Eq. 453; Carr v. Iglehart, 3 Ohio St. 457; Thief es V. Mason, 55 N. J. Eq. 456, 37 Atl. 455; Goldey v. Becker, 1 Edw. Ch. (N. Y.) 27L 139 Mitchell V. Tighe, Hopk. Ch. (N. Y.) 119. - woMietzsch v. Berkhout (Cal.) 35 Pac. 321. (123). § 90 EQUITY PLEADING AND PRACTICE. [Ch. 5 § 89. How parties described. Parties should be described by their proper names, or the names by which they are known and called. ■'*■'■/ It is said that a bill is defective where it does not give the full names of all the parties to whom it refers.^*^ Where a bill by the next friend of a party does not show the party to be under disability, it is in- sufficient on demurrer.^*^yf It is said that if sufficient facts are set forth in the bill to show that complainant is entitled to the relief asked for as an executor, or that defendant's liability is that of an executor, it is not essential that either party should be so styled in the bill.-'** § 90. Interest of parties, and injury to complainant. ■ The bill must show that the complainant has an interest in the suit.^*^^/- It is a principle of universal application in plead- ing, founded on reason and good sense, that complainant's title should be stated with sufficient certainty and clearness to enable the court to see plainly that he has such a right as warrants its interference, and the defendant to be distinctly informed of the i^iKirkham v. Justice, 17 III. 107; Kanawha Valley Bank v. Wilson, 35 W. Va. 36, 13 S. B. 58. See, also, for cases involving description of parties: Pile v. Mc- Bratney, 15 111. 314; Huston v. McClarty's Heirs, 3 Litt. (Ky.) 274; Letcher v. Shroeder, 5 J. J. Marsh. (Ky.) 513; Elmendorf v. Delancey, Hopk. Ch. (N. Y.) 555; Moore v. Anderson, 36 N. C. 411. 142 Barth v. Makeever, 4 Biss. 206, Fed. Cas. No. 1,069. 143 West V. Reynolds, 35 Fla. 317, 17 So. 740. A bill brought to en- join the collection of a judgment against one "Frederick" Rabberman was signed by one "Valentine" Rabberman as counsel, and the bill professed to have been brought by said Valentine. The court held that there was no equity in the bill, although it was claimed by counsel that the error was a clerical one only. Rabberman v. Hause, 89 111. 209. i« Ransoms Ex'rs v. Geer, 30 N. J. Bq. 249; Buck v. Fischer, 2 Colo. 709; Mock v. City of Santa Rosa, 126 Cal. 330, 58 Pac. 826; Bvans V. Bvans, 23 N. J. Eq. 72. In West Virginia it is held that in a bill by an executor, as such, he should describe himself as the executor of his testator, and it is improper for him to describe himself merely a's "personal representative" of a person deceased. Capehart v. Hale, 6 W. Va. 547. 145 1 Barbour, Ch. Pr. 39; Mitford, Eq. PI, 156, 157. (124) Ch. S] BILLS AND INFORMATIONS. § % nature of the case which he is called upon to defend.^*^. A bill alleging that complainant's title is superior both in law and equity, without describing the nature of that claim, or exhibit- ing any document of title, should be dismissed.^''y When the complainants claim as heirs of others who claimed to be devisees of a certain person, their relation to said ancestors should be set forth.^** An allegation that the complainant is the bona fide holder and transferee of a note, and that the same is unpaid, is, in connection with a copy of the note exhibited, a sufficient allegation of title. -^^^ An averment that a person ob- tained title to certain land, "by virtue of divers deeds, wills, devises," etc., is not sufficient to show title, being no more than the statement of a conclusion ;^^*' but it is not essential that the complainant's title to the subject-matter should be explicitly set forth, if the nature of such title can be fairly inferred from the facts alleged.^ ^^ Equity will not decree a delivery up of pa- pers on the allegation of a belief that the holder of them will injure the credit of complainant, where it does not appear that the credit is mercantile, but a demurrer to such bill will be sus- tained.152 The complainant must not only show an interest in the sub- ject-matter of the suit, but it must be an actual existing inter- est. A mere possibility, or even probability, of a future title, will not be sufficient to sustain a bill /and this interest must not be capable of being defeated by the act of the defendant.^^^ The "sCookrell v. Gurley, 26 Ala. 405; "West v. Reynolds, 35 Fla. 317, 17 So. 740; Tudor v, Cambridge Water Works, 1 Allen (Mass.) 164; Phil- lips V. Sohooley, 27 N. J. Eq. 410; Wood v. Genet, 8 Paige (N. Y.) 137; Houghton V. Reynolds, 2 Hare, 264. 147 Clark V. Bell, 2 B. Mon. (Ky.) 1. i48Norris v. Lemen, 28 W. Va. 336; White v. Kennedy's Adm'r, 23 W. Va. 221. 149 Owen V. Moore, 14 Ala. 640. 160 Miller v. Stalker, 158 111. 514, 42 N. E. 79. 151 Webber v. Gage, 39 N. H. 182. 152 Wilkes V. Wilkes, 4 Edw. Ch. (N. Y.) 630. 163 1 Barbour, Ch. Pr. 39; Dursley v. Fitzhardinge, 6 Ves. 262. (125) § 90 EQUITY PLEADING AND PRACTICE. [Ch. 5 bill must aver the performance of all preliminary acts neces- sary to complete the complainant's title. ^^V' ' A hill should show in what manner the complainant is in- jured.^ ^f On a bill for injunction on the ground of the illegal- ity of an ordinance the injury must be specified, and so pointed out that the court can see that it must be an inevitable conse- quence of the act threatened and complained of .-^^^ Where a bill presents to the court merely an abstract question and shows no equity in complainant, and contains no averment that complain- ant was injured by certain state statutes, the supreme court of the United States will not consider a question the object of which is merely to determine the constitutionality of the statutes, but will dismiss it without prejudice.^^^ It, is not sufficient to charge a fraud, simply, but the bill must charge also some injury as the result of the fraud ; but this rule does not require any considera- ble damage, and a slight injury as the result of the fraud will give the party injured the right to bring his action and cancel the contract.^^* " There should be sufficient averments to show that the de- fendant also has an interest in the subject-matter, and is liable to answer to the complainant therefor.^^^,. Where there was no direct or positive averment that the defendants, or either of them, had any interest in the property claimed, or that it was in their 154 1 Barbour, Ch. Pr. 40; Walburn v. Ingllby, 1 Mylne & K. 61. 155 1 Barbour, Ch. Pr. 39; Baltimore & 0. R. Co. v. Adams Express Co., 22 Fed. 404; Jones v. Myers, 7 Blackf. (Ind.) 340; Willmgham v. King, 23 Pla. 478, 2 So. 851; Hartshorn v. Inhabitants of South Read- ing, 3 Allen (Mass.) 501; Merchants' Bank v. Jeffries, 21 W. Va. 504; ©^reen v. Hankinson's Adm'rs, Walk. (Miss.) 487. 156 Kearney v. Andrews, 10 N. J. Eq. 70. 157 Williams v. Hagood, 98 TJ. S. 72. 158 Linn v. Green, 17 Fed. 407; Wainscott v. Occidental Building & Loan Ass'n, 98 Cal. 253, 33 Pao. 88. 159 1 Barbour, Ch. Pr. 39; Cooper, Eq. PI. 177-179; Mitford, Eq. PI. 160; Story, Eq. PI. § 262; MoGlanahan v. Davis, 8 How. (TJ. S.) 170; Stillwell V. Adams, 29 Ark. 346; Humphreys v. Tate, 39 N. C. 220; Attorney General v. Whorwood, 1 Ves. Sr. 534; Muir v. Trustees of Leake & Watts Orphan House, 2 Barb. Ch. (N. Y.) 477; Hubbard v. Manhattan Trust Co., 57 U. S. App. 730, 87 Fed. 51. (126) Ch. 5] BILLS AND INFORMATIONS. § 91 possession, no ground of relief against those parties was shown, and the right to a discovery, as incidental thereto, failed also.^^° The same precision in showing an interest which is required in setting out the complainant's case is not requisite in setting out that of the defendant against whom the relief is sought, hecause the complainant cannot always be supposed to be cognizant of the nature of the defendant's interest S'' ^^ and where it is evi- dent from the nature of the case that the complainant must be cognizant of the defendant's title, and sets out the same in- formally, yet if he alleges enough to show that the defendant has an interest, it will be sufficient. -^^^ § 91. Offer to do equity. A complainant must allege in his bill that he has done, or of- fered to do, or is ready to do, everything necessary to entitle him to the relief he seeks, or allege sufficient excuse for its nonper- formance.^®^ A bill to relieve from forfeiture for nonpayment of rent should allege a tender of the rent admitted to be du.e.^''* On a bill to set aside a tax sale as illegal, it is held that the com- plainant should offer to reimburse the purchaser for all taxes. paid by the latter.^®^ Where the vendor files a bill to set aside a deed on the ground of fraud, he should offer to do equity by re- turning the purchase money.^^® A complainant who seeks relief 160 McClanahan v. Davis, 8 How. (U. S.) 170. 161 1 Barbour, Ch. Pr. 40; Baring v. Nasb, 1 Ves. & B. 551. 162 1 Barbour, Ch. Pr. 40; Roberts v. Clayton, 3 Anstr. 715. A com- plainant is only required to state the interests of such defendants as his knowledge extends to, and as to others it is sufficient to say he can- not state what their interest is. Hungerford v. Gushing, 8 Wis. 332. It is not necessary for complainant to set out specially the nature of the claim of a defendant, which he wishes silenced. Lytle v. Breckenridge, 3 J. J. Marsh. (Ky.) 663. 163 Oliver's Ex'rs v. Palmer, 11 Gill & J. (Md.) 426; Walburn v. In- gilby, 1 Mylne & K. 61; Deans v. Robertson, 64 Miss. 195; Jackson v. Simmons, 98 Fed. 768. 164 Sheets v. Selden, 7 "Wall. (U. S.) 416; Beecher v. Beecher, 43 Conn. 557. i«5 Connors v. City of Detroit, 41 Mich. 128, 1 N. W. 902; Taylor v. Snyder, Walk. (Mich.) 490; Gage v. Kaufman, 133 U. S. 471. "6 United States v. White, 17 Fed. 561; Davis v. Gaines, 104 U. S. 386. See United States v. Trinidad Coal & Coking Co., 137 U. S. 160. (127) § 92 EQUITY PLEADING AND PRACTICE. [Ch. 5 against a judgment at law or other legal security on the ground of usury cannot be relieved except upon the reasonable terms of paying to the defendant what is really and iona fide due him.^^'^ On a bill for discovery on a charge of usury, an injunction will not be granted to stay proceedings at law on the note or usurious contract, unless the complainant tenders or brings into court the money actually loaned, and the lawful interest thereon.^®® A bill seeking to enjoin the collection of a portion of a tax as illegal is defective, even if it states grounds for relief, where it fails to offer or tender the amount of the taxes admitted to be legal.^^^ § 92. Excusing laches. If there are grounds which take a case out of the statute of limitations, they should be alleged in the bill, to prevent the stat- ute being available on demurrer thereto.-^''? If the complainant seeks to avoid the effect of his laches on the ground of concealed fraud, he must set forth in his bill, with particularity, when and by what means the fraud was discovered. -^^V Thus, a cestui que le- Fanning v. Dunham, 5 Johns. Ch. (N. Y.) 141; Taylor v. Bell, 2 Vern. 171; Scott v. Nesbit, 2 Brown Ch. 641; Judd v. Seaver, 8 Paige (N. Y.) 548; Livingston v. Harris, 3 Paige (N. Y.) 528. See, also, Matthews v. Warner, 6 Fed. 461. les Rogers V. Rathbun, 1 Johns. Ch. (N. Y.) 367; Suffolk v. Green, 1 A.tk. 450. 169 Johnson v. Roberts, 102 111. 655; German Nat. Bank of Chicago V. Kimball, 103 U. S. 732; State Railroad Tax Cases, 92 U. S. 575. See, also, Martin's Heirs v. Tenison, 26 Ala. 738; Craig v. Chandler, 6 Colo. 543; Peacock v. Terry, 9 Ga. 137; Overton v. Stevens, 8 Mo. 622; Post V. Bank of Utica, 7 Hill (N. Y.) 391; McRae v. Atlantic & N. C. R. Co., 58 N. C. 395. 170 Henry County Sup'rs v. Winnebago Swamp Drainage Co., 52 111. 299; Boyd v. Wyley, 18 Fed. 355; Gary v. Simmons, 87 Ala. 524, 6 So. 416; Jarvis v. Martin's Adm'r, 45 W. Va. 347, 31 S. E. 957; Thompson V. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795. "1 Marsh v. Whitmore, 21 Wall. (U. S.) 178, 1 Hask. 391, Fed. Cas. No. 9,122; Harwood v. Cincinnati & C. R. Co., 17 Wall. (U. S.) 78; Stearns v. Page, 7 How. (U. S.) 819, 1 Story, 204, Fed. Cas. No. 13,339;, Badger v. Badger, 2 Wall. (U. S.) 87; Van Bokkelen v. Cook, 5 Sawy. 587., Fed. Cas. No. 16,831; Campau v. Chene, 1 Mich. 400; Radcliff v (128) Oh. 5] BILLS AND INFORMATIONS. g 93 trust who seeks to establisK a stale trust should set forth in his bill specifically what were the irapediments to an earlier prose- cution of his claim, how he came to be so long ignorant of his rights, the means used by the respondent to fraudulently conceal the facts from him, and when he first had knowledge of his rights ;^''^ and especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresen- tation was discovered, and what the discovery is, so that the court may clearly see whether, by the exercise of ordinary dili- gence, the discovery might not have been before made.^''^ To enable a complainant to introduce facts to rebut the presumption arising from lapse of time, the foundation therefor must be laid in the bill, and an allegation that the complainant was not in a situation to commence a suit before is insufficient.^ ''^^ Every case must, of course, depend upon its own peculiar circum- stances, and there would be little profit in referring to the very numerous cases to be found in the books on this subject.^''^ § 93. Charging notice. If a bill founds the right against the defendant upon his hav- ing notice, notice should be charged directly; otherwise, it is not a matter in issue on which the court can act.^^*- ' Where the Rowley, 2 Barb. Ch. (N. Y.) 23; Kirksey v. Keith, 11 Rich. Bq. (S. C.) 33; Nash v. Ingalls, 101 Fed. 645; Hovenden v. Lord Annesley, 2 Schoales & L. 607; Hubbard v. Manhattan Trust Co., 57 U. S. App. 730, 87 Fed. 51; Patterson v. Hewitt (N. M.) 66 Pac. 552; Bailey v. Calfee, 49 W. Va. 630, 39 S. E. 642. 1T2 Badger v. Badger, 2 Wall. (U. S.) 87; Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339. 173 Stearns v. Page, 7 How. (U. S,) 829; Credit Co. of London v. Arkansas Cent. R. Co., 15 Fed. 46; Felix v. Patrick, 145 TJ. S. 317; Wood V. Carpenter, 101 U. S. 135; Hubbard v. Manhattan Trust Co., 57 U. S. App. 730, 87 Fed. 51. See Johnson v. Powers, 13 Fed. 315; Jones V. Slauson, 33 Fed. 632; Gross v. George W. Scott Mfg. Co., 48 Fed. 38; Ulman v. laeger, 67 Fed. 980; Ingalls v. Rowell, 149 111. 163, 36 N. E. 1016; Olden v. Hubbard, 34 N. J. Eq. 85; Richards v. Mackall, 124 U. S. 183; Mackall v. Casilear, 137 U. S. 556. I'^Bertine v. Varian, 1 Edw. Ch. (N. Y.) 343. "6 Stearns v. Page, 7 How. (U. S.) 829. i^e Story, Eq. PI. § 263; De Tastet v. Le Tavernier, 1 Keen, 169. Equity — 9 § 95 EQUITY PLEADING AND PRACTICE. [Ch. 5 notice relied upon is to be proved by confessions or admissions to witnesses, it seems proper, even if it is not indispensable, as it has been decided in England to be, to insert in the bill the dates of the confessions or admissions, and the names of the witnesses ; for otherwise the defendant will not be concluded by their testi- mony at the hearing, and the court may direct further inquiries on the subject.^ ^^ § 94. Excusing failure to join proper party. Where a person having a common interest with the complain- ant is made a defendant in the bill, the bill must show that he re- fused to join as complainant, or that there was some other good reason for making him a defendant ;^7^ and if the court is called on to dispense with a proper party, some reason therefor should be stated in the bill.-^v The proper allegation in a bill, where it is sought to excuse complainant for not making the representa- tives of a decedent parties to the suit, is that decedent died in- solvent, and without leaving any assets for the payment of his debts ; and an allegation that decedent died insolvent is not suf- fiicient.^®,"' § 95. Allegations relative to mistake or accident. When a complainant in equity seeks relief from the effects or results of some accident or mistake, he should state in his bill, fully and explicitly, the circumstanceSj, so as to present a clear picture of the particulars of how the complainant was misled, of the character and causes of the accident or mistake, and how it occurred. ^*i 1" Story, Bq. PI. § 263; Earle v. Pickin, 1 Russ. & M, 547; Gresley Bq. Bv. 288. See post, § 104. "8 Morse v. Hovey, 9 Paige (N. Y.) 197; Calvert, Parties, 11, note 3. 179 Gilham v. Cairns, 1 III. 164. ISO Dart v. Palmer, 1 Barb. Ch. (N. Y.) 92; Seddon v. Connell, 10 Sim. 58. See, also, on excusing failure to join parties, Janes v. Williams, 31 Ark. 175; Martin v. McBryde. 38 N. C. 531. 181 Merrill v. Washburn, 83 Me. 189, 22 Atl. 118; Stover v. Poole, 67 Me. 217; Eraser v. Hext, 2 Strob. Bq. (S. C.) 250; United States v. Atherton, 102 U. S. 372. (130) Ch. 5] BILLS AND INFORMATIONS. § 98 § 96. Bill to open settled account. ,/ In a bill to open a settled account, it is not sufficient to allege generally that the account is erroneous, but the specific errors must be pointed out /nor, if the complainant fails to support his equity on the different items alleged, can the bill be sustained against demurrer, upon the vague charge of voluminous ac- counts between the parties.^®^ § 97. Relief against usury. Any pleading which relies upon usury as its substance should set it up in clear and distinct termsyand it is held that a bill filed to set aside a contract on account of usury must distinctly state the usury and corrupt agreement, and the terms of the usurious contract, and the amount of the usurious interest, or proofs of usury will not be admitted.^ ^^ Where a bill charges a borrowing and a lending, and a payment stipulated for beyond the legal interest, it is a sufficient allegation of usury. If the facts are in the pleadings, the chancellor will draw the proper conclusions of law.^** § 98. Allegations of fraud. Where a bill seeks relief on the ground of fraud, it is not sufficient to make such charge in general terms, but it should point out and state particular acts of fraud.^?^ Mere epithetic 182 story, Bq. PI. § 251; Darthez v. Clemens, 6 Beav. 165; Johnson v, Curtis, 3 Brown Ch. 267; Taylor v. Haylin, 2 Brown Ch. 310; Hunter v. Daniel, 4 Hare, 432. 183 Cole v. Savage, Clarke Ch. (N. Y.) 361; Newell v. Bureau County Sup'rs, 37 111. 253. 184 Freeman v. Brown, 7 T. B. Mon. (Ky.) 263. 185 Story, Bq. PL § 251; Gernt v. Cusack, 106 Tenn. 141, 59 S. W. 335; Voorhees v. Bonesteel, 16 Wall, (U. S.) 16; Small v. Boudinot, 9 N. J, Eq. 381; Praser v. Hext, 2 Stroh. Eq. (S. C.) 250; Noonan v. Lee, 2 Black (U. S.) 499; Bull v. Bull, 2 Root (Conn.) 476; Johnson's Ap- peal, 9 Pa. 416; Magniac v. Thomson, 2 Wall. Jr. 209, Fed. Cas. No. 8,957; Lake v. Security Loan Ass'n, 72 Ala. 207; Ringgold v. Stone, 20 Ark. 526; Henry County Sup'rs v. Winnebago Swamp Drainage Co., 52 111. 299; Newell v. Bureau County Sup'rs, 37 111. 253; Bovaird v. Sey- lang, 200 Pa. 261, 49 Atl. 958. (131) § 99 EQUITY PLEADING AND PRACTICE. [Ch. 5 accusations of fraud will not suffice, but the facts must be stated which, show the conduct complained of to be fraudulent.-'*^ Where a bill alleges fraud as a ground to set aside a title, it must state specifically the facts and circumstances constituting the fraud, and also the time of its discovery.^^^ In charging com- bination to defraud, a general statement of the facts is suffi- cient. The facts and circumstances tending to establish it need not be minutely charged. It is sufficient if the facts which con- stitute the fraud are set forth, with an averment of their injuri- ous result. The details of the circumstances which tend to es- tablish the dishonest intent are more properly left to the evi- dence.^ ^* A charge that the defendant, a vendor of land, "fraudulently misrepresented and concealed the nature and good- ness of the conflicting claims, and the condition of his own claim," is too general.^ *^ § 99. Pleading documents. Where a bill neither sets forth copies of instruments creating complainant's claim, nor avers their terms, it is demurrable.^" If documents are referred to, ordinarily, they should not be set out in haec verha, but the substance of such portions only of them as are necessary to a right understanding of the real mat- ters of the bill need be set out."^ /The rule in equity, as at law, 186 Lafayette Co. v. Neely, 21 Fed. 738; Witherspoon v. Carmichael, 41 N. C. 143; Steed v. Baker, 13 Grat. tVa.) 380; Twombly v. Kim- brough, 24 Ark. 459; Sterling Gas Co. v. Higby, 134 111. 557, 25 N. E. 660; Jones v. Massey, 79 Ala. 370. 187 Moore V. Greene, 19 How. (U. S.) 69; Jolinson v. Johnson, 5 Ala. 90. 188 Story, Eq. PI. § 252; Tong v. Marvin, 15 Midi. 60; Singleton v. Scott, 11 Iowa, 589; Parnam v. Brooks, 9 Pick. (Mass.) 212; Lewis v. Lewis, 9 Mo. 183, 43 Am. Dec. 540. 189 Jasper v. Hamilton, 3 Dana (Ky.) 280. 190 Marshall v. Turnbull, 34 Fed. 827. 191 Story, Eq. PI. § 241; East India Co. v. Henchman, 1 Ves. Jr. 287; Hood V. Inman, 4 Johns. Ch. (N. Y.) 437; United States Equity Rule 26. In some jurisdictions it seems necessary to make documents on which the bill Is based exhibits thereto. Nagengast v. Alz, 93 Md. 522, 49 Atl. 333. (132) Ch. 5] BILLS AND INFORMATIONS. § 99 is that the party pleading a contract is only obliged to state it according to its legal effect.^^^ Documents inserted in haec verba, where otherwise fully described in the bill, will be strick- en out as impertinent, and, if set out in a schedule annexed in haec verba, the schedule may also be stricken out.^''^ It is not necessary to file, as an exhibit to a bill, papers on which com- plainant does not rely as the foundation of his suit, but only as evidence of an admission by the defendant. ■'^^y' A general refer- ence in a bill to charges of another bill in a different cause, though in the same court, will not make such charges a part of it. A bill must be complete in itself, by proper averments and exhibits attached.^ ^^ Documents appended to pleadings as ex- hibits are as fully a part of the pleadings as if incorporated therein. 1^? Whenever any question in the cause is likely to turn i92Meers v. Stevens, 106 111. 549; 2 Daniell, Ch. PI. & Pr. (Perkins' Ed.) 857. 193 Goodricli v. Parker, 1 Minn. 195 (Gil. 169). 194 Trapnall v. Byrd's Adm'r, 22 Ark. 10. 193 Moses v. Brodie, 1 Tenn. Oh. 397; Carr v. Bob, 7 Dana (Ky.) 417. See, however, Daniel v. Smythe, 5 B. Mon. (Ky.) 347; Mason v. Jones, 1 Hayw. & H. 329, Fed. Cas. No. 9,240; Bolton v. Flournoy, R. M. Charlt. (Ga.) 125. 196 Raster v. Lyon, 40 W. Va. 161, 20 S. E. 933; Surget v. Byers, Hemp. 715, Fed. Cas. No. 13,629; Byers v. Surget, 19 How. (U. S.) 303; Minter v. Branch Bank at Mobile, 23 Ala. 762. See McGowan v. Mc- Gowan, 48 Miss. 533; Caton v. Willis, 40 N. C. 335. "In Harvey v. Kelly, 41 Miss. 490, 493, the late Chancellor Ellett, * •- * who was an elegant pleader of the old school, well versed in the law of good pleading, under both ancient and modern forms, says: 'It is indeed admissible to a certain extent, in pleading in chancery, to file written evidence as exhibits, and to refer to them as a part of the bill or answer; but good pleading requires that everything that is material to the case should be set forth in the pleading itself by proper aver- ments. This may be done in general terms, and the exhibit may be referred to for greater certainty as to particular details, but the plead- ing ought to contain the substance of the case." No authority says that an indefinite, general, and wholly undefined statement of the invention or other thing in controversy, without exhibiting the document de- scribing it, shall, by mere reference to the document, stand for a spe- cific statement or description in the bill; or that a general statement, accompanied by an exhibit of the document, or a copy of it, meets the rule of good pleading which we have above stated, with the reasons (133) § 99 EQUITY PLEADING AND PRACTICE. [Ch, 5 ■upon the precise words of an instrument, as in the case of a bill filed for the establishment of a particular construction of a will which is informally or inartificially worded, in such a bill the words which are the subject of the discussion ought to be accu- rately set out, in order to more specifically point the attention of the court to them. Indeed, whenever informal instruments are insisted on, upon the construction of which any difiSculty is likely to arise, the written instruments relied on, or at least the material parts of them, should be set out in haec verba. In many cases, the expressions of the instrument or writing are such that any attempt to state their substance, without intro- ducing the very words in which they are expressed, would be in- effectual, and it is best that they should be set forth."'^ Where for its requirement. In Daniell, Ch. Pr., it is said that "it is usual to refer to the instrument in some such words as the following, viz., "as by the said indenture, when produced, will appear"; and the effect is to make the whole document a part of the record.' 1 Daniell, Ch. Pr. (5th Ed.) 367; Id. (1st Ed.) 476. But this does not say that the hill in such a case shall not, hy proper allegation, inform the defendant of the nature of the document, hut is a rule to give the plaintiff the benefit of the averring part without reciting it in haec verba, or ex- hibiting it, as the author says; and in the very next text he condemns the inconvenience of this indulgence, and says: 'It is always neces- sary, in drawing bills, to state the case of the plaintiff clearly, though succinctly, upon the record; and, in doing this, care should be taken to set out precisely those deeds which are relied upon, and those parts of the deeds which are most important to the case.' 1 Daniell, Ch. Pr. (5th Ed.) 368; Id. (1st Ed.) 476." Electrolibration Co. v. Jackson, 52 Fed. 773; King v. Trice, 38 N. C. 568. 197 1 Daniell, Ch. PI. & Pr. (4th Ed.) 363; Einstein v. Schnebly, 89 Fed. 540, holding that, where the agreements are not free from am- biguity, no rule of pleading is violated in setting them forth in full, together with the construction placed upon them by the complainant. Where the language used by the parties to a contract is of doubtful construction, the practical interpretation by the parties themselves is entitled to great, if not controlling, influence. City of Chicago v. Shel- don, 9 Wall. (U. S.) 50. In referring to proceedings in other cases, the following forms are used: "As by said pleadings [or "by said pleadings and other proceedings"; or "by said bill, decree, and other proceedings"; or "by said proceedings and decree"; or "by said bill, answer, and pro- ceedings," — changing the same to suit the circumstances of the par- (134) Ch. 5] BILLS AND INFORMATIONS. § IQO there is an inconsistency between an averment in a bill and a written instrument attached thereto as an exhibit, the latter must prevail.^ ^* § 100. Allegations on information and belief. An allegation in a bill that the complainant is "informed," or that he is "advised and believes," or "is informed and believes," or "is of opinion" that a material fact exists, is not an averment that such fact exists ;^^^ biit an allegation that the defendant "has ■: been informed and believes, and therefore avers," is a sufficiently ticular case] now remaining as of record in this honorable court [or il some other court, describe the same], reference thereunto being duly had, will more fully appear." 2 Barbour, Ch. Pr. 536-572; Curtis, Uq. Free. 127. Where a written document is made an exhibit to the bill, the same should be referred to, substantially as follows: Describe generally the nature of the instru- ment, and add: "As will more fully appear by the said [here describe the instrument; as, for example, deed, will, mortgage, trust deed, or writing, etc.], when produced, and by a copy thereof hereto attached, marked 'Exhibit A,' and made a part o£ this bill." See Swet- land V. Swetland, 3 Mich. 482; Lowenstein v. Rapp, 79 111. App. 678. In Sadler v. Taylor, 49 W. Va. 104, 38 S. E. 588, the court said: "While the bill is very imperfect in form, and, without the exhibits filed with it, would undoubtedly be bad upon demurrer, the plaintiff asks that the exhibits be read and treated as parts of his bill, which makes them as much parts of it as if incorporated in it. 1 Barbour, Ch. Pr. 278; Johnson v. Anderson, 76 Va. 766; Thompson v. Clark, 81 Va. 422." 198 National Park Bank of New York v. Halle, 30 111. App. 17; Lock- head V. Berkeley Springs Waterworks & Improvement Co., 40 W. Va, 553, 21 S. E. 1031; Dreyer v. Goldy, 62 111. App. 347; Wagner v. May- nard, 64 111. App. 244; North v. Kizer, 72 111. 172; Greig v. Russell, 115 III. 484; Moore v. Titman, 33 111. 358. See, however, Holman v. Patter- son's Heirs, 29 Ark. 357. In Barrett v. Central Building & Loan Ass'n (Ala.) 30 So. 347, it was held that a repugnancy between the averments of a bill and the exhibits thereto attached rendered the bill subject to demurrer. See Little v. Snedecor, 52 Ala. 167. In Grace v. Oakland Bldg. Ass'n, 63 111. App. 339, it is held that where a statement of a supposed fact is unnecessarily in an exhibit, and the bill contains an averment that the fact is otherwise, upon demurrer the averment of the bill is to be taken as true. 199 Jones V. Cowles, 26 Ala. 612; Cameron v. Abbott, 30 Ala. 416; Lucas V. Oliver, 34 Ala. 626; Ex parte Reid, 50 Ala. 439; Messer v, Storer, 79 Me. 512, 11 Atl. 275; Carter v. Lyman, 33 Miss. 171. (1.3.5) § 101 EQUITY PLEADING AND PRACTICE. [Ch. 5 positive averment.^'"' So, allegations made in the form of di- rect and positive statements of facts, with the additional words, "as your orator is informed and believes," are averments of the facts, together with a statement of the complainant's source of knowledge, and not merely averments of his confidence in the truth of the representations.^"^-/ Where matter essential to the determination of the claims of the complainant is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently a part of the discovery sought by the bill, it may be stated on the information and be- lief of thc/Complainant, followed by a statement that he therefore charges the fact to be true.^°^ It is held that an averment of facts upon information and belief, if the bill afterwards avers that such information is derived from the defendant, is a suffi- cient averment of knowledge to sustain an injunction.^"^ When the averment is that the complainant is informed and believes that certain things are true, the demurrer admits the fact that the complainant is so informed, and does so believe, but not that such information is true.^"* § 101. Matters of argument and evidence. The practice of setting forth arguments in support of the equities relied on in a bill is not approved.^°^ The bill should contain a statement of the essential facts of the case presented, but not the evidence -of those facts.^°® 200 Wells V. Bridgeport Hydraulic Co., 30 Conn. 316, 79 Am. Dec. 250. 201 Coryell v. Klehm, 157 111. 462, 41 N. E. 864. 202 Campbell v. Paris & D. R. Co., 71 111. 611. 203 Cole V. Savage, 1 Clarke Ch. (N. Y.) 361. See, also, Leavenworth V. Pepper, 32 Fed. 718. Mr. Justice Story says: "It is not a sufficient allegation of a fact in a bill to say that one of the defendants alleges and the plaintiff believes the statement to be true, for the defendant may allege that which is quite false, and the plaintiff may believe it to be true. But the fact should be positively alleged by the plainuif in his bill." Story, Eq. PL § 241; Egremont v. Cowell, 5 Beav. 620. 204 Walton V. Westwood, 73 111. 126; Ex parte Reid, 50 Ala. 439. 205 Weisman v. Heron Min. Co., 57 N. C. 112; Hood v. Inman, 4 Johns. Ch. (N. Y.) 437; Chambers v. Chalmers, 4 Gill & J. (Md.) 420, 23 Am. Dec. 572. 200 Winebrenner v. Colder, 43 Pa. 244; Dennis v. Dennis, 15 Md. 73. (136) Ch. 5] BILLS AND INFORMATIONS. § 103 § 102. Legal conclusions not to be stated. It is a general rule that a bill must state the facts, and not conclusions of law'.^"'' § 103. Matters judicially noticed. The complainant need not, and indeed should not, state any i matters of which the court is bound judicially to take notice, y Hence he need not state matters of law or legal presumption, or recite public acts or laws, or aver facts which the courts are bound judicially to know, such as the divisions of counties, the recognition of foreign governments by our own, ■''the course of practice or proceeding in the court itself, or any other facts of a like public nature, which do or may concern the general ad- ministration of public justice. A strong illustration of this general rule may be found in the right and duty of the federal courts to take judicial notice of the ports and waters of the United States in which the tide ebbs and flows, to take like notice of the boundaries of the several states and judicial districts, and of the laws and jurisprudence of the several states.^"* 'The laws It need not set out all the minute facts whicli are to be proved. The general statement of precise details is usually sufficient. Nesmith v. Calvert, 1 Woodb. & M. 34, Fed. Gas. No. 10,123; Wilson v. Eggleston, 27 Mich. 257; Dunham v. Eaton & H. R. Co., 1 Bond, 492, Fed. Gas. No. 4,150; Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 343. It is said to be proper to state in a bill, not only any issuable fact, but any matter of evidence or collateral facts, the admission of which by the defend- ant may be material, in establishing the general allegations of the bill as a pleading, or in ascertaining or determining the nature or the extent of the relief the complainant may be entitled to consistently with the bill, and such matter cannot be excepted to as impertinent. Goodrich v. Parker, 1 Minn. 195 (Gil. 169). 207Wootten v. Biirch, 2 Md. Gh. 198; Dennis v. Dennis, 15 Md. 73; Kedzie v. West Chicago Park Gom'rs, 114 111. 280; Sterling Gas Co. v. Higby, 134 111. 557, 25 N. B. 660. It is only necessary to state the facts, and is generally improper to state matters of law, unless, perhaps, law and fact be so blended as to render it necessary to state both. Kelly's Heirs v. McGuire, 15 Ark. 555. 208 story, Eq. PI. § 24; Owings v. Hull, 9 Pet. (U. S.) 607; Gormley V. Bunyan, 138 TJ. S. 623; Fitzgerald v. Evans, 49 Fed. 426; Merchants' Exchange Bank of Milwaukee v. McGraw, 15 U. S. App. 332, 59 Fed. (137) g 104 EQUITY PLEADING AND PRACTICE. [Ch. 5 and jurisprudence of foreign nations must be averred in the bill, and, when material, must, if denied, be proved like any other facts.^°V State courts take judicial notice of the federal .constitution and statutes,^^" but not of the laws of other states :of the Union.^^^' § 104. Admissions of defendant. '" In England it was held that, if the bill meant to rely upon any confessions, conversations, or admissions of the defendant as proof of any facts charged in the bill, it must be expressly stat- ecj-'what the confessions, admissions, or conversations were, and to whom made ; otherwise, no evidence thereof would be admitted at the hearing.^i^ The rule is not believed to prevail in Amer- 972. See, also Secrist v. Petty, 109 111. 188; Eureka Vinegar Co. v. Gazette Printing Co., 35 Fed. 570; Howard v. Moot, 64 N. Y. 262; Dixon V. Niccolls, 39 III. 372, 89 Am. Dec. 312; Bittle v. Stuart, 34 Ark. 224; Parks V. Jacob Dold Packing Co., 6 Misc. Rep. 570, 27 N. Y. Supp. 289;, King V. American Transp. Co., 1 Flip. 1, Fed. Cas. No. 7,787; Mutual Benefit Life Ins. Co. v. Robison, 19 U. S. App. 266, 58 Fed. 723, 22 L. R. A. 325; U. S. v. One Thousand Five Hundred Bales of Cotton, 1 Am. Law Rec. 93, Fed. Cas. No. 15,958; Prince v. Skillin, 71 Me. 361, 36 Am. Rep. 325; People v. Williams, 64 Cal. 87, 27 Pac. 939. 209 Story, Eq. PI. § 24; Strother v. Lucas, 6 Pet. (U. S.) 763; Brack- ett V. Norton, 4 Conn. 517, 10 Am. Dec. 179; Chapman v. Colby, 47 Mich. 46, 10 N. W. 74; Peck v. Hibbard, 26 Vt. 698, 62 Am. Dec. 605. 210 Graves v. Keaton, 3 Cold. (Tenn.) 8; Schwerdtle v. Placer County, 108 Cal. 589, 41 Pac. 448. 211 Brackett v. Norton, 4 Conn. 517, 10 Am. Dec. 179; Mason v. Wash, 1 111. 39, 12 Am. Dec. 138. It is beyond the scope of this work to con- sider what matters will be judicially noticed by the courts. The reader is referred to the text books on evidence, and digests, for that subject. See the works of Greenleaf, Rice, Gresley (Equity Evidence), Thayer, and American Digest (Century Edition) vol. xx., §§ 1-72. 212 Story, Eq. PI. §§ 263, 265a; Earle v. Pickin, 1 Russ. & M. 547; Gresley, Eq. Ev. 288 ; Hall v. Maltby, 6 Price, 240. 213 Story, Eq. PI. § 265a; Smith v. Burnham, 2 Sumn. 612, Fed. Cas. No. 13,018. In Bishop's Heirs v. Bishop's Administrator and Heirs, 13 Ala. 475, it is held that it is only necessary to allege the facts on which the relief is sought, and, though me proof of the facts consists in the admissions of the opposite party, it is not necessary to allege in the bill that such admissions were made. See, also, Bailey v. Wright, 24 (138) Ch. 5] BILLS AND INFORMATIONS. § 106- § 105. Inconsistent allegations. A bill should not set up different and distinct causes of action \ whicli destroy each other.^\> Where there are some allegations showing a case entitling complainant to relief, and these are contradicted by other allegations, and it is impossible to deter- mine the true nature of the case sought to be made by the bill, the bill is demurrable. ^^^ Specific facts alleged in the bill will control general averments stated by way of inference or con- clusion merely.^^® A variance in setting out the contract in a bill for specific performance, where the language used in the bill signifies the same thing as that iised in the contract, is immate- rial.2" § 106. Bills with a double aspect. A bill may be framed with a double aspect, so that, if one / / Ark. 73; Cannon v. Collins, 3 Del. Ch. 132; Brandon v. Cabiness, 10 Ala. 156. See supra, § 93. 214 Hart V. MoKeen, Walk. (Mich.) 417; Collins v. Knight, 3 Tenn. Ch. 183; Heyer v. Bromberg, 74 Ala. 524; Williams v. Jackson, 107 U. S. 478; Walthall's Ex'rs v. Rives, 34 Ala. 91; Merriman v. Chicago & E. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Micou v. Ashurst, 55 Ala. 612. 215 Bridger v. Thrasher, 22 Fla. 383. Illustrative of repugnant alle- gations in bills are Cramer v. Watson, 73 Ala. 127; Howell v. Merrill, 30 Mich. 282; Leonard v. Cook (N. J. Eq.) 20 Atl. 1085; Rankin v. Jones, 55 N. C. 169; Cumberland Valley R. Co.'s Appeal, 62 Pa. 218; Bynum v. Bwart, 90 Tenn. 655, 18 S. W. 394; Friedman v. Fennell, 94 Ala. 570, 10 So. 649; Brooks v. Lowenstein, 124 Ala. 158, 27 So. 520; Cutter V. Iowa Water Co., 96 Fed. 777. For instances of bills contain- ing allegations held not to be inconsistent, see Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Lingan v. Henderson, 1 Bland (Md.) 236. 216 Connors v. Connors, 4^ Wis. 112. 2iTMcWhorter v. McMahan, 10 Paige (N. Y.) 386; Hungerford v. Cushing, 8 Wis. 332. On demurrer to a bill for repugnancy, where but one clause in the bill was subject to such imputation, and that clause was unnecessary, the court ordered that clause to be stricken out, and overruled the demurrer. Socola v. Grant, 15 Fed. 487. It is the alter- native statement of a fact in a bill, when repugnant and inconsistent, and not the alternative relief prayed, which renders the bill demurra- ble. Lyons v. McCurdy, 90 Ala. 497, 8 So. 52; Faulk v. Calloway, 123 Ala. 325, 26 So. 504. (139) ^ 106 EQUITY PLEADING AND PRACTICE. [Ch. 5 ground fail, the complainant may rely on another, which may be inconsistent with the former, but the alternative case stated must be the foundation for precisely the same relief.^^^ Where the complainant is ignorant of the facts, he may allege his ig- norance, call for a discovery, and frame his prayer so as to ob- tain such relief as it may appear he is entitled to ; or where, upon the facts stated, he is uncertain as to the relief to which he is entitled, he may ask for alternative relief. ^^^'^ Where a bill for partition alleged that a pretended will, under which de- fendants claimed title to a part of the premises, was invalid, and prayed that it might be annulled, or, in case the same should be decreed to be valid, then that the complainant might have a partition of the premises, it was held that, if the complainant was ignorant whether the alleged devise to the defendants was valid or invalid, the statements in the bill, as well as the prayer for re- lief, shoiild have been so framed as to present the case in a double aspect.^^" A creditors' bill cannot be filed to set aside a conveyance as fraudulent, or to have it declared and enforced as a general assignment, inuring to the equal benefit of all the creditors. ^^^ A bill may pray for alternative relief, provided the prayer is consistent with the facts stated in the bill, when the complainant cannot foresee the result of his suit, or when the bill has a double aspect. ^^^ A bill may be originally framed with a double aspect, or it may be so amended as to be of that character; but/the alternative case stated must be the founda- 218 Story, Eq. PL § 254; Brown v. Bedford City Land & Improvement Co., 91 Va. 31, 20 S. E. 968; McConnell v. MoConnell, 11 Vt. 290; Fos- ter V. Cook, 8 N. C. 509; Rapier v. -Gulf City Paper Co., 69 Ala. 476; Caldwell v. King, 76 Ala. 149; Bradley v. Converse, 4 Cliff. 366, Fed. Cas. No. 1,775; Merriman v. Chicago & B. I. R. Co., 64 Fed. 535, 24 U. S. App. 428; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Ritchie v. Sayers, 100 Fed. 520. 219 Lloyd V. Brewster, 4 Paige (N. Y.) 537; Ritchie v. Sayers, 100 Fed. 536; Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620. 22oMcCosker v. Brady, 1 Barb. Ch. (N. Y.) 329. 22iMoog V. Talcott,-72 Ala. 210. 222 Tennessee Ice Co. v. Raine, 107 Tenn. 151, 64 S. W. -29; Gibson, Suit in Ch. § 183; Hill v. Harriman, 95 Tenn. 300, 32 S. W. 202. (140) Cb. 5] BILLS AND INFORMATIONS. § 107 tion for precisely the same relief.^ ^^ A complainant, if not cer- tain as to the specific relief to which he is entitled, may frame his prayer in the alternative, so that, if one kind of relief is denied, another may be granted, the relief of each kind being- consistent with the case made by the bill.^^'' If the complain- ant is entitled to either relief prayed, the defendant cannot demur because, under the allegations of the bill, the complain- ant is not entitled to the other kind of relief. His remedy is to insist at the hearing that the complainant be confined to such re- lief only as he is entitled to under all the circumstances as then presented. ^^^ A bill stating two inconsistent causes of action, where the right to recover upon one theory is destructive of the right to recover upon the other, cannot be maintained ; but upon a given case there may be prayers for consistent alternative re- lief ; but alternative and inconsistent cases, coupled with prayers for alternative and inconsistent relief, may not be stated. ^^'^ § 107. Bills should not be multifarious. The bill should not be multifarious. If so, it is demurrable, and may be dismissed by the court of its own accord, even if not objected to by the defendant.^ ^'' By multifariousness is meant the improperly joining in one bill of distinct and independent matters ; as, for example, the uniting in one bill of several matters perfectly distinct and un- connected against one defendant, or the demand of several mat- ters of a distinct and independent nature against several de- 223 Shields V. Barrow, 17 How. (U. S.) 130; Cutter v. Iowa Water Co., 96 Fed. 777; Fisher v. Moog, 39 Fed. 665. 224 Virginia-Carolina Chemical Co. v. Home Ins. Co. of New York, 113 Fed. 1; Hardin v. Boyd, 113 U. S. 756; Terry v. Rosell, 32 Ark. 478; Colton v. Ross, 2 Paige (N. Y.) 396; Lingan v. Henderson, 1 Bland (Md.) 252; Murphy v. Clark, 1 Smedes & M. (Miss.) 236. 225 Florida Southern R. Co. v. Hill, 40 Fla. 1, 23 So. 566; Western Ins. Co. V. Eagle Fire Ins. Co., 1 Paige (N. Y.) 284. 226Merriman v. Chicago & B. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Cutter V. Iowa Water Co., 96 Fed. 777. 227 story, Bq. PI. § 271; 1 Barbour, Ch. Pr. 40; Mitford, Eg. PI. 181; Cooper, Eq. PI. 182. (141) § 107 EQUITY PLEADING AND PRACTICE. [Ch. 5 fendants in tlie same bill.^^V OSTo general rule can be laid down as to what constitutes multifariousness. The court must exer- cise a sound discretion in determining from the circumstances of each case whether the bill is liable to that objection.^^" '' Multifariousness may result from any one of three causes, viz. : (1) The joinder of distinct and independent matters, ; each of which would constitute a cause of action, in the same i bill, brought by a single complainant against the same defend- ant j^^S' as, for example, where a bill prays for relief in respect to two separate and distinct matters, such as partition, and the foreclosure of a mortgage claim.^^^/ (2) The demanding by j several complainants in one bill of several distinct matters against one defendant / as, for example, where a tract of land is subdivided and sold in lots to different persons, who attempt to join in one bill against the vendor for a specific perform- ance.^^^ '(3) The joinder of several defendants in a suit upon distinct and independent matters ;'' as, for example, an attempt on the part of the vendor in the last illustration to file one bill for a specific performance against all the purchasers of such lots.233 228 1 Barbour, Ch. Pr. 40; Story, Eq. PI. § 271; Mitford, Eq. PI. 181; Saxton v. Davis, 18 Ves. 80; Sherlock v. Village of Winnetka, 59 111. 389; Emans v. Emans, 13 N. J. Eq. 205; Merriman v. Chicago & E. I. R. Co., 24 U. S. App. 428, 64 Fed. 535; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958; Cutter v. Iowa Water Co., 96 Fed. 777. 229 Gaines v. Chew, 2 How. (U. S.) 619; Oliver v. Piatt, 3 How. (U. S.) 333; Chew -?. Glenn, 82 Md. 370, 33 Atl. 722; Sherlock v. Village of Winnetka, 59 111. 389; Eastman v. Savings Bank, 58 N. H. 421; Ed- wards v. Sartor, 1 Rich. (S. C.) 266; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60; Harrison v. Perea, 168 U. S. 311; Bliss v. Parks, 175 Mass. 539, 56 N. E. 566; Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. 652; Shields v. Thomas, 18 How. (U. S.) 253; Warren v. Warren, 56 Me. 360; Washington City Sav. Bank v. Thornton, 83 Va. 157, 2 S. E. 193; Chisholm v. Johnson, 106 Fed. 211; United States Mineral Wool Co. v. Manville Covering Co., 101 Fed. 145; Virginia-Carolina Chemical Co. v. Home Ins. Co. of New York, 113 Fed. 1; Cutter v. Iowa Water Co., 96 Fed. 777. 230 Story, Eq. PI. § 271; 1 Barbour, Ch. Pr. 40; Cooper, Eq. PI. 182. 231 Belt V. Bowie, 65 Md. 350, 4 Atl. 295. 232 story, Eq. PI. §§ 271, 272; 1 Barbour, Ch. Pr. 40. 233 Story, Eq. PI. §§ 271, 272; 1 Barbour, Ch.Pr. 40; Cooper, Eq. PI. 182; (142) Ch. ,5] BILLS AND INFORMATIONS. § 108 § 108. Misjoinder of causes. •'■ A bill in -which are joined distinct and independent matters, 1 each of which would constitute a cause of action, is bad for ': multifariousness.?^*/ A reason given for this is the inconven- ience of mixing iip distinct matters which may require very different proceedings or decrees by the court, and embarrass the defendant in his proper defense against each.^^^ Illustrations of bills held to be multifarious on this ground are : A bill which seeks to review a decree for errors apparent on its face, and to impeach and set it aside for fraud f^^ a bill seeking to en- force a vendor's lien against the personal representative of the purchaser and a subpurchaser in possession, and also to establish a devastavit against the personal representative for iiaisrepre- senting the complainant's claim on the land ;^-^^ a bill seeking i, to foreclose a mortgage, and relief as a creditors' bill on the part ; of creditors at large to set aside a conveyance of real estate alleged to be fraudulent as to them.^^®„X A bill is not multifarious because it seeks to enforce two' series of bonds owned by the complainant, and issued by the! same city to cover the cost of the same improvement, differ- Brookes v. WMtworth, 1 Madd. 86. For classifications of objections for multifariousness, see Benson v. Keller, 37 Or. 120, 60 Pac. 918; Camp- bell V. Mackay, 1 Mylne & C. 603; Alexander v. Alexander, 85 Va. 353, 7 S. E. 355, 1 L. R. A. 125. For classification proposed by Gibson, J., and quoted approvingly by Mr. Beach, see Von Auw v. Chicago Toy & Fancy Goods Co., 69 Fed. 450, citing approvingly Beach, Mod. Bq. Pr. § 129, Gibson, Suits in Ch. § 292; United States v. Guglard, 79 Fed. 21. 234 Cooper, Eq. PI. 182; Story, Eq. PL § 280; Walker v. Powers, 104 U. S. 245; Tilman v. Searcy, 24 Tenn. 487; Marshall v. Means, 12 Ga. 61, 56 Am. Dec. 444; Kennebec & P. R. Co. v. Portland & K. R. Co., 54 Me. 173; Bedsole v. Monroe, 40 N. C. 313; Washington City Sav. Bank v. Thorn- ton, 83 Va. 157, 2 S. E. 193; Farson v. City of Sioux City, 106 Fed. 278; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958. 235 story, Eq. PI. § 280; Cooper, Eq. PI. 183; Attorney General v. St. John's College, 7 Sim. 241. 236 Gordon's Adm'r v. Ross, 63 Ala. 363. 237 Kinsey v. Howard, 47 Ala. 236. 238 Darcey v. Lake, 48 Miss. 109. See, also. Van Houten v. Van Winkle, 46 N. J. Eq. 380, 20 Atl. 34; Watson v. United States Sugar Refinery, 34 U. S. App. 81, 68 Fed. 769. (U3) § 108 EQUITY PLEADING AND PRACTICE. [Ch. 5' ing only in that one is payable from a general tax, and the other by special assessment,-''or because it attacks two patents, whose validity can be conveniently considered together. ^^^ / To support the objection that the bill contains different causes of suit against the same defendant, two things must concur: ^irst, the different grounds of suit must be wholly distinct; and, secondly, each ground must be sufficient as stated to sus- tain the bill.^*? Thus it is said that if the bill merely seeks to recover the value of land, and rents and profits issued out of the same property, there is not such a want of connection as to render it multifarious, even admitting that one might be right- fully recovered and the other not.^*-' Mere surplusage does not make a bill multifarious ;^*?^ nor is a bill multifarious where it sets up one sufficient ground for equitable relief, and also an- other on which no relief can be had.^*^'' If one of two distinct subject-matters be clearly without the jurisdiction of a court of equity for redress, it is held that the court will treat the bill as if single, and proceed with the other matter, over which it has 239 Burlington Sav. Bank v. City of Clinton, 106 Fed. 269; United States V. American Bell Telephone Co., 128 U. S. 315; United States Mineral Wool Co. v. Manville Covering Co., 101 Fed. 145. But see, as to patents, Hayes v. Dayton, 8 Fed. 702; Barney v. Peck, 16 Fed. 413; Consolidated Electric Light Co. v. Brush Swan Electric Light Co., 20 Fed. 502; Diamond Match Co. v. Ohio Match Co., 80 Fed. 117; Union Switch & Signal Co. v. Philadelphia & Reading R. Co., 68 Fed. 913. 240 Bedsole v. Monroe, 40 N. C. 313; Kennebec & P. r: Co. v. Portland & K. R. Co., 54 Me. 173; Story, Bq. PI. § 284; Mathews v. Bank of Allen- dale, 60 S. C. 183, 38 S. E. 437; Harper v. Holman, 84 Fed. 222; District Grand Lodge v. Marx (Ala.) 30 So. 870. 241 Chapman v. Chunn, 5 Ala. 397, citing Kennedy's Heirs and Ex'rs V. Kennedy's Heirs, 2 Ala. 571. See, also. United States v. Pratt Coal & Coke Co., 18 Fed. 708; PaciHc R. Co. v. Atlantic & P. R. Co., 20 Fed. 277; Hendon v. Morris, 110 Ala. 106, 20 So. 27; Patton v. Glatz, 56 Fed. 367. 242 sturgeon v. Burrall, 1 111. App. 537; Morris v. Morris, 58 Ala. 443; Ritch v. Eichelberger, 13 Fla. 169. 243 Pleasants v. Glasscock, Smedes & M. Ch. (Miss.) 17; McGriff v. Alford, 111 Ala. 634, 20 So. 497; Bedsole v. Monroe, 40 N. C. 313; Huff V. Thrash, 75 Va. 546; Pyles v. Riverside Furniture Co., 30 "W. Va. 123, 2 S. E. 909; Varick v. Smith, 5 Paige (N. Y.) 137, 28 Am. Dec. 417; Dick V. Dick, 1 Hogan, 290. (144) Ch. S] BILLS AND INFORMATIONS. § 109 jurisdiction, as if it constituted the sole object of the bill.^*'* /A. bill is not multifarious because it alleges several grounds in support of the same claim,^*^and is not multifarious because it joins two good causes of complaint growing out of the same transaction, when all the defendants are interested in the same claim of right, and when the relief asked for in relation to each is of the same general character. ^*^ 'Matters of the same na- ture between the same parties, although arising out of distinct transactions, may be joined in the same bill.^''''/ To protect a bill from the charge of multifariousness, it is not necessary that the interests of the parties be the same as to all the matters in- volved in the suit. It will be sufficient if they have a common interest in one or more, which are connected with the rest.^*^ § 109. Avoidance of multiplicity as an excuse for multifarious- ness. / A bill does not come within the evil of multifariousness when the joinder therein of two distinct matters prevents a needless multiplicity of suits, and neither inconveniences the defendants nor causes additional expense.^*^/ A bill to establish a resulting ="Knye v. Moore, 1 Sim. & S. 61; Story, Eq. PI. § 283; Baines v. Barnes, 64 Ala. 375; Varick v. Smith, 5 Paige (N. Y.) 137, 28 Am. Dec. 417; Jones v. Reid, 12 W. Va. 350, 29 Am. Rep. 455; Snavely v. Hark- rader, 29 Grat. (Va.) 112; Smith v. McLain, 11 W. Va. 654. 24oBarnett v. Woods, 55 N. C. 198; Cauley v. Lawson, 58 N. C. 132. 2-10 story. Eg. PI. § 284; Chapman v. Chunn, 5 Ala. 397; Harper v. Holman, 84 Fed. 222. 247Newland v. Rogers, 3 Barb. Ch. (N. Y.) 432; Campbell v. Mackay, 1 Mylne & C. 616. 24S Booth v. Stamper, 10 Ga. 109; Worthy v. Johnson, 8 Ga. 236, 52 Am. Dec. 399; Lenz v. Prescott, 144 Mass. 505, 11 N. E. 923; Brown v. Guarantee Trust & Safe Deposit Co., 128 U. S. 403. See Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139; Camp v. Mills, 59 N. C. 274; Cutter v. Iowa Water Co., 96 Fed. 781; Addison v. Walker, 4 Younge & C. Exch. 442; Kelley v. Boettcher, 56 V. S. App. 363, 85 Fed. 64; Prentice v. Duluth Storage & Forwarding Co., 19 TJ. S. App. 100, 58 Fed. 437; Bol- man v. Lohman, 74 Ala. 507; Truss v. Miller, 116 Ala. 494, 22 So. 863. 249 Stafford Nat. Bank v. Sprague, 8 Fed. 377; People v. Morrill, 26 Cal. 336; Grant v. Phoenix Life Ins. Co., 121 U. S. 105; Chase v. Searles, 45 N. H. 511; Smith v. Bank of New England, 69 N. H. 254, 45 Atl. (145) Equity— 10 § 110 EQUITY PLEADING AND PRACTICE. [Ch. 5 trust, and for partition, is not multifarious because the partition is decreed incidentally, to complete the measure of relief and avoid multiplicity of suits. ^^° If the same relief asked against several defendants is based on the same transaction, and, unless they can be joined in one bill, seventy or eighty suits all growing out of the same character of transactions will be brought, the bill will not be held bad for multifariousness."^^ A court of equity will, in a single suit, take cognizance of a controversy, determine the rights of all parties, and grant, the relief requisite to meet the ends of justice, in order to prevent a multiplicity of suits, where a number of persons have sepa- rate and individual claims and rights of action against the same party, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter may be settled in one action, brought by all these per- sons uniting as co-complainants.^®^ § 110. Prayer for relief making bill multifarious. , Where a bill does not state facts rendering it multifarious, ! the prayer for relief cannot make it so ;^®^ and if a bill does not ' pray for multifarious relief, it is not subject to objection for multifariousness, though the case stated would support such ! prayer.^^y Where a bill filed by two to recover a joint demand 1082; Animarium Co. v. Neiman, 98 Fed. 14; United States v. American Bell Teleptione Co., 128 U. S. 315; Demarest v. Holdeman, 157 Ind. 467, 62 N. B. 17. 250 Hayes' Appeal, 123 Pa. 110, 16 Atl. 600. See, 3 Pomeroy, Bq. Jur. § 1388. 251 Western Land & Emigration Co. v. Guinault, 37 Fed. 523. 252 Pomeroy, Eq. Jur. §§ 243, 245, 255, 269; Libby v. Norris, 142 Mass. 246, 7 N. B. 919; Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824; Macon & B. R. Co. V. Gibson, 85 Ga. 1, 11 S. B. 442; Sang Lung v. Jackson, 85 Fed. 502, 504; Smyth v. Ames, 169 U. S. 466; Liverpool & L. & G. Ins. Co. v. Clunie, 88 Fed. 160. See supra, § 25 et seq. ^ 253 McCarthy v. McCarthy, 74 Ala. 546; Burchard v. Boyce, 21 Ga. 6; Hammond v. Michigan State Bank, Walk. (Mich.) 214; Boutwell v. Vandiver, 123 Ala. 634, 26 So. 222; De Neufville v. New York & N. Ry. Co., 81 Fed. 10. 25* Dick V. Dick, 1 Hogan, 290; Allred v. Tate, 113 Ga. 441, 39 S. B. 101. (146) Ch. 5] BILLS AND INFORMATIONS. § HI contains likewise a statement of facts that would entitle one of them to a decree for a separate demand against the same de- fendant, the bill is not liable to a demurrer for multifariousness, unless relief is prayed as to the separate demand. ^°^ ''A bill! praying the enforcement of an award, and, if that is refused, I the declaration of a partition, concerning which the award was made, to be unequal or fraudulent, and the adjustment of the shares of the parties entitled, is multifarious.'^®/ In a suit be- tween proper parties relating to the same subject-matter, several kinds of relief may be prayed, although either kind might have been the subject of a separate suit.-^,J-^' Where a bill by sev- f eral complainants to restrain the continuance of a nuisance con- i tained also a prayer for an account, and compensation for the \ damage which the complainants had respectively sustained by the alleged nuisance, it was held that multifarious relief could not be granted as prayed for, but that the objection might be ob- viated by striking out that part of the prayer calling for an accoi\nt of the damages to the complainants, respectively.^** § 111. Multifariousness resulting from misjoinder of complain- ants. A bill is bad for multifariousness where several complain- ants by one bill demand several distinct matters against one and the same defendant. ^^'^ The objection of misjoinder does not apply where all the parties complainant have an interest, al- 255 Carpenter v. Hall, 18 Ala. 439, citing Dick v. Dick, 1 Hogan, 290. 250 Bmans v. Emans, 14 N. J. Eg. 114. 257 Durling v. Hammar, 20 N. J. Eq. 220. 258 Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773. See, also, relative to prayers making bills multifarious, Wells v. Bridgeport Hydraulic Co., 30 Conn. 316; Commercial Mut. Ins. Co. v. McLoon, 14 Allen (Mass.) 351; McCosker v. Brady, 1 Barb. Ch. (N. Y.) 329; Canton^ V. McGraw, 91 Md. 744, 47 Atl. 1030; Earle v. Humphrey, 121 Mich. 518, 80 N. W. 370; Cutter v. Iowa Water Co., 96 Fed. 777. 258 Story, Eq. PI. § 279; Ayers v. Wright, 43 N. C. 229; Yeaton v. Lenox, 8 Pet. (U. S.) 123; Mix v. Hotchkiss, 14 Conn. 32; Reybold v. Herdman, 2 Del. Ch. 34; Whiteside County Sup'rs v. Burchell, 31 111. 68; Exeter College v. Rowland, 6 Madd. 94. (147) § m EQUITY PLEADING AND PRACTICE. [Ch 5 though it is not a coextensive interest.^®" Thus, where two mortgagees, one of whom has a mortgage on a part only, and the other on the whole, of the property named in the bill, join as complainants, the bill is not multifarious. ^^^ Where each of the complainants has a standing in court, and their causes of action are not antagonistic, and the relief they pray involves in each case the same questions, and requires the same evidence and the same decree, their joinder does not render the bill mul- tifarious.^^^ A bill brought by several persons claiming under a common title, but in different shares and proportions, is not multifarious;^®^ but two alternative claims, each belonging to many persons, one of whom has no interest in one claim, and others of whom have no interest in the other claim, cannot be joined in one bill.^®^'' The fact that each of the complainants has sustained the same kind of an injury is not sufficient to au- thorize them to file a joint bill, where the cause of complaint is separate and distinct.^®* A bill by owners of separate mills, deriving water from the same dam, to restrain the obstruction of their right of flowage, is not multifarious f^^ nor is a bill by several property o^\^lers to restrain a tax.^^® 260 story, Eq. PI. § 279a; Buckeridge v. Glasse, Craig & P. 126; Fiery V. Emmert, 36 Md. 464; Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935. 261 Mobile & C. P. R. Co. y. Talman, 15 Ala. 472. 202 Home Ins. Co. of New York v. Virginia-Carolina Cliemical Co., 109 Fed. 681; Walker v. Powers, 104 U. S. 245. 203 Shields v. Thomas, 18 How. (U. S.) 253. 2e3a Stebbins v. Town of St. Anne, 116 U. S. 386. 2S4 Appeal of Young, 3 Penny. (Pa.) 463; Winslow v. Jenness, 64 Mich. 84, 30 N. W. 905; Douglass v. Boardman, 113 Mich. 618, 71 N. W. 1100. Several owners of different tracts of land, over which a canal company has made its canal, cannot join in a bill against the company, charging that it has taken their land without permission, and done them great damage; that it is insolvent; and pray for an account and an injunc- tion. Marselis v. Morris Canal & Banking Co., 1 N. J. Eq. 31. 265 Cornwell Mfg. Co. v. Swift, 89 Mich. 503, 50 N. W. 1001. See, also, Whipple v. Guile, 22 R. I. 576, 48 Atl. 935; Rowbotham v. Jones, 47 N. J. Eq. 337, 20 Atl. 731; Snyder v. Cabell, 29 W. Va. 48, 1 S. B. 241; Robinson v. Baugh, 31 Mich. 290; Lonsdale Co. v. City of Woonsocket, 21 R. I. 498, 44 Atl. 929; Proprietors of Mills on Monatiquot River v. (148) Ch. 5] BILLS AND»INPORMATIONS. § 112 Where the interests of several complainants, though separate, and upon distinct conveyances, are yet of a similar nature, against the same defendants, and in relation to the same sub- ject-matter, and the relief prayed is in character the same to all, the objection of multifariousness does not apply.^^'' Where there are several sureties, and any of them becomes insolvent, those who pay the whole debt can in one bill call on another solvent surety for contribution, and the bill will not be multi- farious.^^^ Where landowners file a bill to enjoin a traction company from operating a railway track in the adjacent street, it is not multifarious, where the right under which all claim is precisely the same, and the acts complained of affect them all alike, and in the same manner.^®® § 112. Suits in personal and representative capacities. •-^It has been said that a person may maintain a bill as sole t complainant, although imiting in himself several characters, ' having distinct conflicting rights in the subject-matter of the suit, but that the court will not in such a case decide upon the conflicting rights vested in the complainant, but will in its de- cree protect the defendant from any prejudice arising from the peculiar constitution of the suit.^^^'^ In a bill by an assignee to recover assets which passed under the assignment, the recital that he is also a creditor of the debtor does not render the bill Bralntree Water Supply Co., 149 Mass. 478, 21 N. E. 761; Mitford, Eq. PL 182; Story, Eq. PI. § 285. 206 Mount Carbon Coal & Railroad Co. v. Blanchard, 54 111. 240; Sclio- field V. City of Lansing, 17 Mich. 437. See, for bill by several taxpay- ers to enjoin purchase of waterworks, where one complainant alleged inadequacy of price, in addition to lack of authority, Peabody v. West- erly Waterworks, 20 R. I. 176, 37 Atl. 807. 207Kunkel v. Markell, 26 Md. 390; Hartford Fire Ins. Co. v. Bonner Mercantile Co., 44 Fed. 151, 11 L. R. A. 623. 208 Young v. Lyons, 8 Gill (Md.) 162. 269 Rafferty v. Central Traction Co., 147 Pa. 579, 23 Atl. 884, 30 Am. St. Rep. 763. 270 Story, Eq. PI. § 279b, citing Blease v. Burgh, 2 Beav. 221. See Robinson v. Guild, 12 Mete. (Mass.) 323; MetropoUtan Trust Co. of New York V. Columbus, S. & H. R. Co., 93 Fed. 689. § 113 EQUITY PLEADING sAND PRACTICE. [Ch. 5 multifarious.^^-' The administrator of cestuis que trust in a bill seeking for an account, and payment of moneys received by the trustee for timber cut from the land held in trust and sold by him, may properly aver, in addition to setting forth his of- fice of administrator, that he is now the sole owner of the whole equitable interest in the land.^^y It is held, however, that u I complainant cannot unite in his bill a claim as administrator of f his intestate, and also a claim in his individual capacity.^'^ § 113. Multifariousness resulting from misjoinder of defendants. I ' A bill is multifarious when the complainant demands several ' distinct matters, of distinct natures, of several defendants.^^ A bill against thirty-four defendants to enforce thirty-four sepa- ;■ rate, individual contracts is bad for multifariousness, even ' though such contracts are of the same nature. ^^t^- So is a bill by several taxpayers, on behalf of themselves and fifteen hun- dred other residents of a town, to restrain the town and its of- ficers from collecting the amount of a road tax,y'which it is alleged the officer has threatened to do, though not authorized by any law, and to restrain a corporation, employing complain- ants and most of those whom they represent, from paying the tax, and deducting the amount from their wages. ^''V So is a foreclosure proceeding which makes a person who claims ad- 271 Keyser v. Simmons, 16 Fla. 268. 27= Phillips V. Allen, 5 Allen (Mass.) 85. 273 Cassels v. Vernon, 5 Mason, 332, Fed. Cas. No. 2,503; Carter v. Treadwell, 3 Story, 25, Fed. Cas. No. 2,480; Jones v. Foster, 50 Miss. 47; Bosley v. Phillips, 3 Tenn. Ch. 649; Van Mater v. Sickler, 9 N. J. Eq. 483. 2T4Mitford, Eq. PI. 182; Cooper, Bq. PI. 182; Story, Eq. PI. §§ 272- 279; Mix v. Hotchkiss, 14 Conn. 32; Wilson v. Wilson, 23 Md. 162; Petty V. Fogle, 16 W. Va. 497; Roberts v. Starke, 47 Miss. 257; Sumter County V. Mitchell, 85 Ala. 313, 4 So. 705; Bullock v. Knox, 96 Ala. 195, 11 So. 339; Woodruif v. Young, 43 Mich. 548, 6 N. W. 85; Dilly v. Doig, 2 Ves. Jr. 486; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958. See supra, § 52. 2T5 Cheney v. Goodwin, 88 Me. 563, 34 Atl. 420. 276 Buffalo V. Town of Pocahontas, 85 Va. 222, 7 S. E. 238. (150) Ch. 5] BILLS AND INFORMATIONS. j^ 113 versely to both mortgagor and mortgagee a party, and seeks to litigate and settle his rights. ^^^ A bill is not multifarious on account of the joinder of par- ties defendant, where the object of the suit is single, and there is one general point in issue, rendering the interest common to all the defendants. ^'^* Where two trustees of the same property, claiming under different deeds, and having a common interest in defeating the claim set up by the bill, are made parties to a bill, it is not multifarious. ^^^ / A bill for an accoimting against \ two distinct partnerships, though one of the defendants is .i partner in both, is multifarious. ^*<''" To authorize a suit against a number of persons, there need not be a community of interest between them; but where a common question of law, arising 2" Dial V. Reynolds, 96 U. S. 340; Banks v. Walker, 2 Sandf. Ch. (N. Y.) 344. See, as to bills of partition being multifarious, WMtten v. WMtten, 36 N. H. 326; Drew v. Clemmons, 55 N. C. 312; Baird v. Jack- son, 98 111. 78. 27S Cooper, Eq. PI. 183; Story, Eq. PL § 276; Brown v. Solary, 37 Fla. 102, 19 So. 161; Haggle v. Hill, 95 N. C. 303; Graham v. Dahlonega Gold Min. Co., 71 Ga. 296; Ward v. Northumberland, 2 Anstr. 477; Parrar v. Powell, 71 Vt. 247, 44 Atl. 344. Mr. Justice Story, in stating that an au- thor cannot file a joint bill against several booksellers for selling the same spurious edition of his work, because there is no privity between them, and he has a distinct right against each of them, says that al- though, at first view, it would seem to be proper to join all of them on the . same ground on which, in case of a several fishery upon a bill of peace, persons claiming by distinct titles, not in privity with each other, may be joined, perhaps the true distinction between the cases is that in the latter the right asserted is purely local, and limited to a few per- sons who have a common interest against the right set up, and such common interest centers in the point at issue in the case, while in the former case the claim is absolutely against the whole community, and it is not proper that the public should be represented or bound by a suit in which a few only are parties. Story, Eq. PI. §§ 277, 278; DlUy V. Doig, 2 Ves. Jr. 486. See, also. City of York v. Pilkington, 1 Atk. 283; Weale v. Proprietors of West Middlesex Waterworks, 1 Jac. & W. 360. ^or illustrative cases, see Central Pac. R. Co. v. Dyer, 1 Sawy. 641, Fed. Cas. No. 2,552; Northern Pac. R. Co. v. Walker, 47 Fed. 681; United States v. Flournoy Live-Stock & Real-Estate Co., 69 Fed. 886. 279 Donelson's Adm'rs v. Posey, 13 Ala. 752. 280 Griffin v. Merrill, 10 Md. 364; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958. (151) § 113 EQUITY PLEADING AND PRACTICE. [Ch. 5 upon similar facts, is involved between the complainant and each defendant, they may be made defendants. ^^^ 'Where the i, complainant, by his bill, claims but one general right, the bill is I not multifarious, though the defendants have separate, distinct interests. ^^^-^ Where a number of independent hydraulic min- ing companies, owning mines at various points on a river and its tributaries, work them independently of each other, dis- charging their debris into the streams, by which it comes into the main river, where it mingles into an indistinguishable mass, and is deposited along the course of the river in the valley be- low, burying valuable lands and creating a public and private nuisance, a bill, by one injured, against all the parties thus con- tributing to the nuisance, to enjoin it, is held to be not niulti- farious.^^^ So, a bill to subject the property of a fraudulent grantor, held in different parcels by different grantees, to the claims of his creditors, is not multifarious.^^^/'In order to de- termine whether a bill is multifarious, the inquiry is not wheth- er each party is connected with every branch of the case, but whether the bill seeks relief in respect to matters which are in their nature separate and distinct. ^*?^ 2S1 Bailey v. Tillinghast, 99 Fed. 801, citing City of York v. Pilking- ton, 1 Atk. 282; Tenham v. Herbert, 2 Atk. 483; City of London v. Per- kins, 3 Brown, Pari. Cas. 602; New River Co. v. Graves, 2 Vern. 431; Louisville, N. A. & C. Ry. Co. v. Ohio Valley Improvement & Contract Co., 57 Fed. 42; New York & N. H. R. Co. v. Sckuyler, 17 N. Y. 592; Saratoga County Sup'rs v. Degoe, 77 N. Y. 219; Sheffield Waterworks V. Yeomans, 2 Ch. App. 11; Black v. Shreeve, 7 N. J. Eq. 440. See Union Mill & Mining Co. v. Dangberg, 81 Fed. 73. 282 Smith V. Scribner, 59 Vt. 96, 7 Atl. 711; Bugbee v. Sargent, 23 Me. 269; Gaines v. Mausseaux, 1 Woods, 118, Fed. Cas. No. 5,176; Alterauge V. Christiansen, 48 Mich. 60, 11 N. W. 806; United States v. Flournoy Live-stock & Real-Estate Co., 69 Fed. 886. 283 Woodruff V. North Bloomfield Gravel Min. Co., 16 Fed. 25. See, also. Pacific Live-Stock Co. v. Hanley, 98 Fed. 326; Union Mill & Min- ing Co. v. Dangberg, 81 Fed. 73. 2s4Bauknight v. Sloan, 17 Fla. 284; Chase v. Searles, 45 N. H. 511; Almond v. Wilson, 75 Va. 613; Way v. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147. 285 Robertson v. Stevens, 36 N. C. 247; Kennedy's Heirs and Ex'rs V. Kennedy's Heirs, 2 Ala. 571; Randolph v. Daly, 16 N. J. Eq. 313; Halsey v. Goddard, 86 Fed. 25. But see Waller v. Taylor, 42 Ala. 297. (152) Ch. 5] BILLS AND INFORMATIONS. §115 § 114. Bills against defendant in different capacities. '' A bill uniting claims against a defendant as heir and in his J individual capacity is niultifarious.^^5' So is a bill in which demands against the defendant in his private capacity are joined with demands against him in a representative capacity, or in two separate representative capacities.^*''/ But a bill by a cred-i itor to set aside several conveyances of the debtor's property as \ fraudulent, and to subject the property to the satisfaction of his demand, is not subject to the objection of multifarioiisness ! because a part of the indebtedness due from complainant to the j debtor consisted of a claim for which one of the grantees, who ■ is a defendant, was also liable as a partner,yaio relief being claimed against such grantee on the debt, except so far as it may constitute complainant a creditor of the grantor and principal debtor.^®* § 115. Mode of objecting to multifariousness. The objection of multifariousness is usually taken by way of \ demurrer ; and if not so taken, and the cause goes to a hearing, ; the objection will not then be always fatal to the suit. Indeed, j strictly speaking, it is then waived.-*?- By many authorities it • is held that it must be so taken j^*^" but the court may insist of 2S0 Bryan v. Blythe, i Blackf. (Ind.) 249. 287 Davoue v. Fanning, 4 Johns. Ch. (N. Y.) 199; Wren v. Gayden, 1 How. (Miss. J 365; Bovaird v. Seyfang, 200 Pa. 261, 49 Atl. 958; Carter V. Treadwell, 3 Story, 25, Fed. Cas. No. 2,480; Green v. GaskiU, 175 Mass. 265, 56 N. B. 560. 28S Russell v.- Garrett, 75 Ala. 348. 280Mitford, Eq. PI. 181; Story, Bq. PL § 284a; Ward v. Cooke, 5 Madd. 122; Whaley v. Dawson, 2 Schoales & L. 371; Lahadie v. Hewitt, 85 111. 341; Mackall v. Casilear, 137 U. S. 561; Ring v. Lawless, 190 111. 520, 60 N. E. 881. 200 Whaley v. Dawson, 2 Schoales & L. 367; Gibbs v. Clagett, 2 Gill & J. (Md.) 28; Veghte v. Raritan Water Power Co., 19 N. J. Bq. 142; Buffalow V. Buffalow, 37 N. C. 113; Wade v. Pulsifer, 54 Vt. 45. The United States supreme court say that multifariousness cannot be taken advantage of by a defendant except by demurrer, plea, or answer, al- though the court, in its discretion, may take the objection at the hear- ing or on appeal. Hefner v. Northwestern Life Ins. Co., 123 U. S. (153) §116 EQUITY PLEADING AND PRACTICE. [Ch. 5 its own motion upon the objection at the hearing.^®^ Where a joint claim against several defendants is joined in a bill with a separate claim against one of them only, either or all of the de- fendants may demur for multifariousness.^^V Only a defend- I ant who is prejudiced thereby can complain of multifarious- § 116. Splitting up causes. Courts -of equity, for the purpose of preventing a multiplicity of suits^'will not permit a bill to be brought for a part of a mat- ( ter only, where the whole is the proper subject of one suit./ Thus, the court will not allow a party to bring a bill for a part of one entire account, but will compel him to unite the whole in one suit.-^* A demurrer will be allowed on this ground.^^^ 747; Chisholm v. Johnson, 106 Fed. 210; Oliver v. Piatt, 3 How. (U. S.) 333. In 1 Daniell, Ch. PI. & Pr. (4th Ed.) 346, it Is said: "It seems, however, from the report of the judgment of Sir John Leach, M. R., in Greenvi^ood v. Churchill, 1 Mylne & K. 559, that the objection may be taken by answer." In Labadie v. Hewitt, 85 111. 341, it is said that, if raised by answer, it is optional with the court to consider the objec- tion. In Abbot v-. Johnson," 32 N. H. 9, it is held that, where the objec- tion appears on the face of the bill, the defendant must make the ob- jection by demurrer, and cannot insist on it at the hearing on plea or answer, but that, if the objection does not appear on the face of the bill, it may be raised on plea or answer. See, also, Mitford, Eq. PI. 221, and .Story, Eq. PI. § 747, concerning right to raise objection by plea, where not apparent on face of bill. =91 Story, Eq. PI. § 284a, citing Greenwood v. Churchill, 1 Mylne & K. 546; Oliver v. Piatt, 3 How. (U. S.) 333; Dunn v. Dunn, 26 Grat. (Va.) 291; Childs v. Pellatt, 102 Mich. 564, 61 N. W. 54; Hefner v. North- western Life Ins. Co., 123 U, S. 747; Mattair v. Payne, 15 Fla. 682. -■'« Mcintosh V. Alexander, 16 Ala. 87 ; Emans v. Emans, 13 N. J. Eq. 205; Boyd v. Hoyt, 5 Paige (N. Y.) 65; Ward v. Northumberland, 2 Anstr. 469. 2"3 Christian v. Crocker, 25 Ark. 327; Sweet v. Converse, 88 Mich. 1, 49 N. W. 899; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618; Pitchett v. Blows, 74 Fed. 47; Warthen v. Brantley, 5 Ga. 574; Torrent t. Hamil- ton, 95 Mich. 159, 54 N. W. 634; Toulmin v. Hamilton, 7 Ala. 362. =04 Mitford, Eq. PI. 183; Mitford & T. PL & Pr. in Eq. 238, 275, 276; Story, Eq. PI. § 287; Cooper, Eq. PI. 184; Purefoy v. Purefoy, 1 Vern. 28; Edgworth v. Swift, 4 Brown, Pari. Cas. 654. 2»5 Mitford & T. PI. & Pr. in Eq. 275, 276. Ch. S] BILLS AND INFORMATIONS. § 117 § 117. Bills must not be scandalous or impertinent. The authority to control the volume and character of the pleadings and proceedings before it, and to strike from its files those that are obnoxious to its rules and practice, is necessary to the speedy and efficient administration of justice, and is one of the inherent powers of a court of chancery, which has been exercised without question since the establishment of such courts. Prolixity, tautology, scandal, and impertinence have been among the common faults of bills in equity, time out of mind. Lord Keeper Bacon made an order that no bill should contain more than fifteen sheets of paper, and Lord Chancellor Egerton followed it with another, to the effect that no sheet should contain more than fifteen lines, and excess of the allotted quantity furnished good cause for demurrer.^®'' The authority and duty of a court to keep its records free from scandal and stain are by no means dependent on the ability or disposition of counsel for the litigants before it ; but its power is plenary, and its duty imperative, whatever the action of counsel may be.^®^/ Scandal in a pleading consists of any unnecessary alle- gation which bears cruelly upon the moral character of an in- dividual, 'or states anything which is contrary to good manners, 230 Story, Eq. PI. § 266, note; Kelley v. Boettcher, 49 U. S. App. 620, 85 Fed. 55. See Mitford, Bq. PI. 48; Cooper, Eq. PI. 19. The supreme court of the United States leveled Equity Rules 26 and 27 at these evils. These rules declare that every bill shall be expressed in as brief and succinct terms as it reasonably can be, and that, if it shall contain impertinent matter or scandalous matter not relevant to the suit, it may, on exception, be referred to a master, and such matter may be expunged at the cost of the complainant, unless the court or judge thereof shall otherwise order. They provide that scandalous and im- pertinent matter may be stricken out by a master, after exceptions have been filed, but they do not abrogate nor curtail the inherent power of the court, sitting in equity, to strike out rambling or tautological pleadings, and to purge their records of scandalous or impertinent mat- ter. They were adopted, not to limit the power, but to lighten the bur- dens, of the courts. Kelley v. Boettcher, 49 TJ. S. App. 620, 85 Fed. 55. 287 Kelley v. Boettcher, 49 U. S. App. 620, 85 Fed. 57; Ex parte Simp- son, 15 Ves. 4y6; Christie v. Christie, 8 Ch. App. 499; Langdon v. God- dard, 3 Story, 13, Fed. Cas. No. 8,061; Green v. Elbert, 137 U. S. 615; McConnell v. Holobush, 11 111. 61. (155). § 117 EQUITY PLEADING AND PRACTICE. [Ch. S or anything -which is unbecoming the dignity of the court to hear, or which charges some person with a crime not necessary to be shown in the cause. ^^^/ Matter, to be scandalous, must also be impertinent; for, no matter how scandalous it may be in fact, it is not scandalous, within the meaning of the word as used in equity pleading, if it is pertinent to the cause. -/^ Im- pertinence consists of any allegation that is irrelevant to the material issues made or tendered.^"" It involves more than prolixity, and consists in recitals of fact which are entirely im- material to the issue.^°^ Any statement which may be material in establishing the general allegations of the bill, or in ascertain- ing the nature, extent, and kind of relief to which the complain- ant is entitled, or which may legally influence the court in deter- mining the question of costs, is relevant, and cannot be excepted to for impertinence.^""''' According to the ordinary jsractice, a bill cannot be referred for impertinence after the defendant has answered or submitted to answer. It may be referred for scan- dal at any time, and even, by leave of court, upon the applica- tion of a stranger to the suit ; for impertinence is not in itself prejudicial to any one, but scandal is calculated to injure all persons affected thereby.*"'^' y' 20S 1 Barbour, Ch. Pr. 41; Coffin v. Cooper, 6 Ves. 514; Kelley v. Boettcher, 49 U. S. App. 620, 85 Fed. 58. 209 Cooper, Eq. PI. 19; Story, Eq. PI. § 268; Ha-wley v. Wolverton, 5 Paige (N. y.) 523; Goodrich v. Parker, 1 Minn. 195 (Gil. 169); Henry V. Henry, 62 N. C. 334, 98 Am. Dec. 87; Commissioners of Highways v. Deboe, 43 111. App. 25. 300 1 Barbour, Ch. Pr. 41; Kelley v. Boettcher, 49 U. S. App. 620, 85 Fed. 58; Goodrich v. Parker, 1 Minn. 195 (Gil. 169). , 3oiin re Marshall's Estate, 40 Leg. Int. (Pa.) 279; Perkins v. Center, 35 Cal. 713; Gilbert, Forum Rom. 209; Woods v. Morrell, 1 Johns. Ch. (N. y.) 103. 302 Kirkpatrick v. Corning, 40 N. J. Eq. 241; Hawley v. "Wolverton, 5 Paige (N. y.) 522; Wood v. Mann, 1 Sumn. 578, Fed. Cas. No. 17,952; Woods V. Morrell, 1 Johns. Ch. (N. Y.) 103. It is not impertinent, I'fl a bill amended after answer, to adopt the language of the answer, and set forth its averments, by way of pretense, with a charge to meet them. 1 Barbour, Ch. Pr. 41; Seeley v. Boehm, 2 Madd. 176. 303 story, Eq. PI. § 270; Cooper, Eq: PI. 19; Coffin v. Cooper, 6 Ves. 514; Ex parte Simpson, 15 Ves. 477. (156) Ch. 5] BILLS AND INFORMATIONS. § 119 § 118. General form of bill. ,/ All bills, answers, and other proceedings, and copies thereof, should be fairly and legibly written. This is frequently re- quired by a rule of court.^"* It is also sometimes provided that a copy of the bill shall be made, and either filed in the office along with the bill, or served upon the opposite party.^"^' Many practitioners divide bills into paragraphs, and number each par- agraph. Although this may not be required by any statute or rule of court, it is frequently convenient for the purposes of ref- erence or amendment.^"® § 119. Authority to file bill. ,/ Unless the complainant intends to appear and conduct the pro-, ceedings himself, a solicitor is employed to commence and con- 1 duct a suit in chancery on his behalf. The complainant has a ' right to conduct his cause without the assistance of a solicitor. It is unusual for a person so to do, unless he is a solicitor.^"^ It is not necessary that a solicitor's retainer should be in writ- ing. It should, however, be special, as it is held that a general authority to act as solicitor for a party is not sufficient to war- rant the solicitor in commencing a suit on his behalf, though the rule is otherwise as to defending suits.^"^ By the English practice, an attorney is not allowed to prosecute or defend a suit unless he has a written warrant of attorney from the party. The warrant constitutes his authority to act for the suitor, and it is filed in the court in which the action is pending. In America a warrant of attorney is not generally required, but ,' an attorney may be appointed by parol. / It is, however, as nec- essary here as in England that he be authorized by the party to appear for him. The only dift'erence in the practice relates to 3^1 Barbour, Ch. Pr. 43; Michigan Chancery Rules, 67. 305 Michigan Chancery Rules, 11; Rule 15, Chancery Rules Cir. & Sup. Cts. Cook Co., 111. 300 Mix V. People, 116 111. 265, 4 N. E. 783; Thompson, Eq. PI. & Pr. 17. 307 1 Barbour, Ch. Pr. 42. 308 1 Barbour, Ch. Pr. 42; Wilson v. Wilson, 1 Jac. & W. 457; Wright V. Castle, 3 Mer. 12. (157) § 119 EQUITY PLEADING AND PRACTICE. [Ch. 5 the mode of his appointment./ If an attorney brings a suit in the name of another, the legal presumption is that he was ap- pointed for the purpose. It is only when his right to repre- sent the complainant is questioned, and the presumption that he has been engaged by him is repelled, that he can be called upon to make proof of his authority; but in such a case, if he fails to show any authority to institute the suit, the same should be summarily disjaissed by the court.^/* Authority must be questioned by direct attack, and may be challenged by a motion to dismiss the case, or to compel the party to show authority, or to vacate the appearance; and in cases where the validity of any order, judgment, or decree/ depends upon the jurisdiction of the court over the person of the party, acquired solely by appear- ance by attorney;5^the authority may be challenged on a motion to vacate the order, judgment, or decree.*^/'' The practice is the same with regard to corporations as to natural persons. ^^^ The complainant may also move to take the bill from the files, or that it may be dismissed.^'-y 309 Frye's Administrators and Heirs v. Calhoun County, 14 111. 133; Town of Kankakee v. Kankakee & I. R. Co., 115 111. 88, 3 N. B. 741; Osborn v. Bank of the United States, 9 Wheat. (U. S.) 830; American Ins. Co. V. Oakley, 9 Paige (N. Y.) 497; African Methodist Bethel Church v. Carmack, 2 Md. Ch. 143; Pope v. Leonard, 115 Mass. 286; Bank Com'rs v. Bank of Buffalo, 6 Paige (N. Y.) 497; Bonnifleld v. Thorp, 71 Fed. 924. 310 Bonnifleld v. Thorp, 71 Fed. 924, citing Hollins v. St. Louis & C. Ry. Co., 57 Hun, 139, 11 N. Y. Supp. 27; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Hill v. Mendenhall, 21 Wall. (U. S.) 453; McKlernan v. Patrick, 4 How. (Miss.) 333; Howe v. Anderson (Ky.) 14 S. W. 216; Reynolds v. Fleming, 30 Kan. 106, 1 Pac. 61; Williams V. Uncompahgre Canal Co., 13 Colo. 469, 22 Pac. 806; Dillon v. Rand, 15 Colo. 372, 25 Pac. 185; Winters v. Means, 25 Neb. 241, 41 N. W. 157; •Turner v. Caruthers, 17 Cal. 432; People v. Mariposa Co., 39 Cal. 683. 311 Osborn v. Bank of United States, 9 Wheat. (U. S.) 830. For cases involving objections that bill is not filed by attorney general of the United States, see United States v. Throckmorton, 98 U. S. 61; United States V. MuUan, 10 Fed. 785. 312 1 Daniell, Ch. PI. & Pr. (5th Am. Ed.) 307; Jerdein v. Bright, 10 Wkly. Rep. 380; Wright v. Castle, 3 Mer. 12; Allen v. Bone, 4 Beav. 493. (158) Ch. 5] BILLS AND INFORMATIONS. g 120 § 120. Filing the bill. The next step in the suit is to cause the bill to be filed in the proper office. What this office is depends upon the court in which the proceeding is instituted. ( In most jurisdictions the ! bill is filed in the office of the clerk of the court in which the i suit is about to be commenced.^ ^^^ 313 For full consideration of when a pleading is filed, see Meridian Nat. Bank v. Hoyt & Bros. Co., 74 Miss. 221, 21 So. 12. (159> CHAPTER VI. PROCESS FOR APPEARANCE. § 121. Subpoena to appear. The practice in coni'ts of equity is to commence the suit in all cases by filing the bill of complaint, which concludes by pray- ing for an appropriate process, which is then issued according- ly.i- " The writ of subpoena is a writ issuing out of and under the seal of the court, commanding the defendant personally to appear in court on a certain day, to answer the bill of com- plaint,^ and usually issues of course, upon filing the bill, with- out entering any order for that purpose.^ ' The ordinary writ of subpoena requires the defendant to appear and answer the bill on a certain day named in the writ, under a certain penalty,/ It was introduced into the court of chancery to compel an appearance to a suit in equity, by Bishop Waltham, master of the rolls and temporary keeper of the great seal, during the ab- sence of the chancellor abroad, in the reign of Richard II.* It was anciently and originally a process in the common-law coiirts, 14 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116); Mitford, Eq. PI. 7, 46; Cooper, Eq. PI. 16; 1 Barbour, Cli. Pr. 48, 49; Story, Eq. PI. §§ 44, 45; Crowell v. Botsford, 16 N. J. Eq. 459, discussing the practice fully. Such is the pi'actice in many of the states, including Illinois and Michigan, and in the courts of the United States. United States Equity Rule 7; Michigan Chancery Rule 9; Rev. St. 111. c. 22, § 8. In Virginia the summons is generally issued in the first instance, and the bill is not usually, or at least not necessarily, filed until the return day of the summons, save where an injunction is sought, when the bill must be presented to the court in the first instance. 4 Minor, Inst. Com. & St. Law (2d Ed.) 1232 (1116). For practice in New Hampshire, see Haverhill Iron Works v. Hale, 64 N. H. 406, 14 Atl. 78. 2 1 Barbour, Ch. Pr. 49; Gibson, Suit in Ch. § 216. 3 1 Barbour, Ch. Pr. 49. 4 Story, Eq. PI. § 45; 4 Minor, Inst. Com. & St. Law (2d Ed.) 1227, 1228 (1112); 3 Bl. Comm. 51, 52. (ICO) . Ch. 6] PROCESS FOR APPEARANCE. § 122 where it was, and still continues to be, used to compel the at- tendance of witnesses to attest the truth of facts and give testi- mony.^ Bishop Waltham merely added to the form of sum- mons which had been previously used the words, "And this he shall in nowise omit, under the penalty \_siib poena] of one hun- dred poiinds." Although this innovation attracted great at- tention, it is said to be a matter of surprise that such impor- tance was ever attached to it, or how it was supposed to have brought about so complete a. revolution in equitable proceed- ings ; for the penalty was not capable of being enforced, and, if the party failed to appear, his default was treated and pun- ished, as probably it had been before, as a contempt of court, and an obedience coerced accordingly.V In many jurisdictions, among which are Virginia and Illinois, the subpoena is termed a "summons in chancery''^" while in others, — for example, in the federal courts and in Michigan, — the term "subpoena" is adopted. In each jurisdiction the statiites and rules of court should be consulted.''' ' ? 122. Frame of subpoena. It is usually required that the subpoena contain the names of all the defendants. The name of one of the complainants, add- ing "and others," is sufficient.^ In England the subpoena must !• Story, Eci. PL § 45. Fed. 387. " Murfree, Sher. (2d Ed.) § 122a; Kauffman v. Kennedy, 25 Fed. 785; Sherman v. Gundlach, 37 Minn. 118. 78 Massey v. Colville, 45 N. J. Law, 119, 46 Am. Rep. 754. 70 Nichols V. Horton, 14 Fed. 327; Greer v. Youngs, 17 111. App. 106; Parker v. Marco, 136 N. Y. 585, 32 N. E. 989; United States v. Edme, 9 Serg. & R. (Pa.) 147; Holmes v. Morgan, 1 Phila. (Pa.) 217; Plimp- ton V. Winslow, 9 Fed. 365; Ex parte King, 7 Ves. 312; Randall v. Giir- ney, 1 Chltty, 679; Small v. Montgomery, 23 Fed. 707. The supreme court of Illinois has held that the rule at common law which extends to parties and witnesses in a law suit the privilege of exemption from arrest on civil process, while going to, attending upon, and returning from the court, has no application in the case of mere service of pro- cess. Greer v. Young, 120 111. 184, 11 N. E. 167. The weight of author- ity seems to be clearly in favor of the proposition that, as regards (17!)) § 138 EQUITY PLEADING AND PRACTICE. [Ch. 6 will not punish as a contempt the arrest of, or service of process by a state court upon, a foreign witness in attendance before it, though it might, perhaps, on habeas corpys, discharge the wit- ness from such arrest, or punish the party who arrested the wit- ness by a stay of proceedings in a case pending between hina and the witness in the federal court.*"/ A citizen of another state, who is brought into the state on criminal process, is ex- empt from liability to civil process during the time he is neces- sarily within the jurisdiction of the court under such criminal process.*^ If a person is fraudulently decoyed into the juris- diction, and then served with process, such service will be set aside on motion.®?^/ § 138. Processes to compel appearance. As, in a court of equity, the nature of the relief to be granted frequently depended upon the discovery to be elicited from the defendant by his answer, courts of equity adopted stringent means of compelling a defendant to appear and answer the bill of complaint. A party failing to enter his appearance at the this privilege, there is no difference between writs of capias and writs of summons, but that the exemption extends to both alilie. Greer v. Youngs, 17 III. App. lOG; Bolton v. Martin, 1 Dall. (Pa.) 296; Dungan V. Miller, 37 N. J. Law, 182; Hale v. Wharton, 73 Fed.- 739; First Nat. Bank of St. Paul v. Ames, 39 Minn. 179, 39 N. W. 308; Mitchell v. Huron Circuit Judge, 53 Mich. 541, 19 N. W. 176; Andrews v. Lembeck, 46 Ohio St. 38, 18 N. E. 483; H^yes v. Shields, 2 Yeates (Pa.) 222. " so Foster, Fed. Pr. (3d Ed.) § 98; Ex parte Hurst, 1 Vvash C. C. 186, Fed. Cas. No. 6,924; Bridges v. Sheldon, 7 Fed. 17. But see Ex parte Schulenburg, 25 Fed. 211. For exemption from service of pro- cess, see 1 Tidd, Pr. (1st Am. Ed.) 174; 1 Greenleaf, Ev. §§ 316-318; Atchison v. Morris, 11 Biss. 191, 11 Fed. 582; Ex parte Schulenburg, 25 Fed. 211; Christian v. Williams, 111 Mo. 429, 20 S. W. 96. 81 United States v. Bridgman, 9 Biss. 221, Fed. Cas. No. 14,645; Jacob- son v. Hosmer, 76 Mich. 234, 42 N. W. 1110. S2 Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98; Steiger v. Bonn, 4 Fed. 17; Blair v. Turtle, 5 Fed. 394. See, for decoy- ing into jurisdiction, Heston v. Heston, 52 N. J. Eq. 91, 28 Atl. 8; Chubbuck v. Cleveland, 37 Minn. 466, 5 Am. St. Rep. 864; Wood v. Wood, 78 Ky. 624; Steele v. Bates, 2 Alk. (Vt.) 338. (180) Ch. 6] PROCESS FOR APPEARANCE. ^ 138 required time was deemed to be guilty of contempt.^* ' The pro- cesses of contempt to compel an appearance were originally five : (1) A writ of attachment, directed to the sheriff, commanding that the defendant's person should be attached. / To this writ the sheriff might- return that he had taken the defendant in cus- tody, or that he had taken him, but had accepted bail/ or that he could not find him within his bailiwick, i On the first of these returns being made, the defendant was -brought up by habeas corpus; on the second, by the messenger of the court or the ser- geant at arms, — and in either case was committed to prison ; on the third return, of non est inventus! the next process of con- tempt issued. (2) A writ of attachment, with proclamations, on which the same returns might be made, and the same results would follow. (3) A writ of rebellion, directed to commis- sioners appointed by the court, and extending into all the coun- ties of England. On this process no bail could be taken, but the commissioners either brought the defendant up in custody, on which he was committed to prison, or made a return of non est inventus, upon which followed : (4) An order that the ser- geant at arms, as an immediate officer of the court, should effect the arrest. If an arrest was made imder this process, it was followed, like other arrests, by a committal to prison ; but if the return we're 7ion est inventus, there was no further process against the person. (5) A writ of sequestration, issuable only on the return non est inventus by the sergeant at arms, or on a defendant in custody being committed to prison. This writ was issued, not against the person, but against the property, oi the defendant, and authorized the sequestrators to take his goods and personal estate, and to enter on his real estate, and to se- quester the rents and profit^ If the sequestration proved in- effectual, there was no further process, and in the reign ol Elizabeth even the right to sequester was disputed, and it was said by the judges that the court had no authority beyond per- sonal commitment, and that, if a sequestrator were killed in the 83 1 Hoffman, Ch. Pr. 115-139; 1 Barbour, Ch. Pr. 54-62, 90; Adams Eq. 324. (isr § 138 EQUITY PLEADING AND PRACTICE. [Ch. 6 execution of process, it was not murder. In the case of a person having privilege of peerage or parliament, and exempt, therefore, from committal for civil contempt, a sequestration nisi was substituted for an attachment, which, if no cause were shown, was afterwards made absolute.^*/ Assuming an appear- ance to be entered, an answer was next required, and, if this were refused, the process of contempt was again enforcedybut, if extended to a sequestration, the complainant was not restrict^ ed to that remedy, but, on issuing the writ, might apply to the court to take his bill pro confesso, and to decree against the de- fendant on the assumption of its triith./ It is obvious, from the nature of the processes of contempt, that if a defendant ab- sconded, so as to avoid its operation, or if, when arrested, he perversely refused to submit, there were no means of compelling obedience; and on the other hand, if a defendant in custody un- der process were incapable of doing the required act, his com- mittal was practically imprisonment for life. Several attempts were made by parliament to remedy these evils. The statute of 1 Wm. IV. c. 36, afterwards amended by the statute of 2 Wm. IV. c. 58, and generally known as/" Sir Edward Sugden's Act," provided for the making of an order for an absconding defend- ant's appearance, and, on due publication of such order, for dis- pensing with both service and appearance, and proceeding at once to take the bill for confessed, and, in case of privileged de- fendants, and defciidants in custody under jDrocess, for the enter- ing of an appearance for them, and taking the bill pro confessoJ By the statute of 2 Wm. IV. c. 33, and 5 Wm. IV. c. 82, provi- »i Adams, Eq. 324-326, from which the foregoing is taken bodily. On account of the fact that these processes of contempt have fallen into disuse, owing to the practice of taking the bill for confessed, the precise nature of the steps involved in the various processes of con- tempt will not be considered. A full discussion thereof will be found in 1 Barbour, Ch. Pr. 54-77; 1 Hoffman, Ch. Pr. 115-166; Hinchliffie v. Oracle, McClel. & Y. 277; Williams v. Corwin, Hopk. Ch. (N. Y.) 471; Rowley v. Ridley, 2 Dickens, 622; 3 Bl. Comm. 284; Vaughan v. Wil- liams, 1 Dickens, 354; Hawkins v. Crook, 2 P. Wms. 556; Maynard v. Pomfret, 3 Atk. 468; Keighler v. Ward, 8 Md. 254. (182) Ch. 6] ~ PROCESS FOR APPEARANCE. g 139 sion was made for the case of absent defendants not having ab- sconded.®^ By the statutes of 3 and 4 Vict. c. 94, 4 and 5 Vict. c. 52, and 8 and 9 Vict. c. 105y "for facilitating the administra- tion of justice in the court of chancery, "'and by the general or- ders made under them, the partial remedies afforded by the ear- lier acts were extended, and provision was made for default in appearance, and for default in answering after an appearance by the defendant ;®® so that in the latter cas^the following modes of procedure were open to the complainant: (1) By process of contempt ; (2) by taking the bill for confessed ; or (3) by going into evidence without an answer. ®V § 139. Process against corporations. • A corporation aggregate, being an ideal and invisible person, existing only in contemplation of law, cannot be attached or ap- j)rehended. Under the ancient practice, its appearance was en- forced by a distringas, which was a writ directed to the sheriff, commanding him to distrain the lands, goods, and chattels of the corporation, so that it might not possess them till the court should make an order to the contrary.^® Upon a distringas, if the corporation had property, the sheriff usually levied forty shillings only, and made his return accordingly, and, if this ex- ecution did not procure the obedience of the corporation, an alias distringas was obtained. Upon this writ the sheriff usu- ally levied four pounds ; and if, after that, the corporation still continued disobedient, a pluries distringas issued, upon which he levied on the whole property. If the pluries distringas failed of effect, upon its being returned by the sheriff a commission of sequestration could be obtained against the corporation.®" Ow- ns Adams, Eq. 326, 327. so Adams, Eq. 327, 328. ST Adams, Eq. 328, 329. See, as to former practice, Thomson v. Woos- ter, 114 U. S. 110; Williams v. Corwin, Hopk. Ch. (N. Y.) 471; De Wolf V. Long, 7 111. 682. 88 1 Hoffman, Ch. Pr. 164, 165; 1 Barbour, Ch. Pr. 75, 76. 80 1 Barbour, Ch. Pr. 76; 1 Hoffman, Ch. Pr. 164; Rowley v. Corpora- tion of Bridgewater, 1 Fowler, Ex. Pr. 200; Attorney General v. Govern- (183), I 139 EQUITY PLEADING AND PRACTICE. [Ch. 6 ing to the fact that bills can now be taken pro confesso against a defendant without the entry of an appearance, the use of the writ of distringas and of sequestration has ceased.y ors of Grammar School, 1 Fowler, Ex. Pr. 202; Harvey v. East India Co., Finch, Prec. Ch. 129. (184) CHAPTER VII. TAKING BILLS AS CONFESSED. § 140. In general. As has been heretofore seen, by the practice of the English court of chancery the writ of subpoena taken out by the com- plainant on filing a bill, not only commanded the defendant to enter his appearance, but also required him to answer the bill.^ Formerly an appearance was absolutely necessary to be entered before a decree pro confesso could be had against the defend- ant.^ In most jurisdictions there has been adopted a method of rendering the process effectual by treating the defendant's contumacy as an admission of the complainant's case ;/and the court will, in certain cases, make an order that the facts of the bill shall be considered as true, and decree against the defend- ant according to the equity arising upon the case stated by the complainant.'^ This proceeding is termed "taking the bill pro'i confesso" or "as confessed.".' This practice is not of very an- cient standing.* § 141. When a bill may be taken for confessed. The practice in taking bills for confessed was i^-ulated, in England, and is usually regulated in the state and federal courts, by statutes or rules of_ court. ^ /It is error to default a defendant 1 1 Barbour, Ch. Pr. 49, 54, 77. 2 1 Barbour, Ch. Pr. 77; Mitford & T. PI. & Pr. in Eq. 432; 1 Hoff- man, Ch. Pr. 184, 185; Gibson v. Scevengton, 1 Vern. 247; Williams v. Corwin, Hopk. Ch. (N. Y.) 534. 3 Mitford & T. PI. & Pr. in Eq. 432; 1 Barbour, Ch. Pr. 90. *1 Barbour, Ch. Pr. 90; Lanum v. Steel, 10 Humph. (Tenn.) 280. 5 Beach, Mod. Eq. Pr. § 191; Mitford & T. PI. & Pr. in Eq. 423. For practice in the federal courts on taking bills as confessed, see United States Equity Rules, 18, 19. See, also, Thomson v. Wooster, 114 U. S. (185)' S 142 EQUITY PLEADING AND PRACTICE. [Ch. 7 where there is a plea or answer on file." To render a final decree upon the filing of a cross bill, granting the relief thereby sought, when no answer has been filed by the defendants, nor any steps taken to place them in default, is error.^ Where an answer is ex- cepted to as insufiicient, and the exceptions are sustained, and no further answer is put in, the complainant can disregard the answer altogether, and take the bill pro confesso}/ It is held that when an answer is actually put in after the proper time, but before an order taking a bill pro confesso, and a decree for want of answer is made, it is irregular to take such latter order without first removing the answer from the record f and that a bill answered in part may be taken as confessed in other parts not answered.^", Where an answer was put in without de- fendant's signature, it was ordered to be taken off the files for ir- regularity ; and no suggestion being made that there was any de- fense, and the answer having evidently been put in for delay, it was ordered that the bill be taken as confessed for want of an answer.^ ^ § 142. Necessity for service of process. A decree pro confesso cannot be rendered against a defendant 104, where the question is fully considered; O'Hara v. McConnell, 93 U. S. 150. For Illinois practice, see Rev. St. 111. c. 22, §§ 16-18. G Wright V. McKean, 13 N. J. Bq. 259; Griswold v. Brock, 29 111. App. 423; Smith v. Cozart, 45 Miss. 698; Young v. Young, 17 N. J. Bq. 161; Jordan v. Jordan, 16 Ga. 446. 7 Western Union Telegraph Co. v. Pacific & Atlantic Telegraph Co., 49 111. 90. 8 1 Newland, Ch. Pr. 95; Lea v. Vanbibber, 6 Humph. (Tenn.) 18; Work V. Hall, 79 111. 196; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 605. 9 Maxwell v. Jarvis, 14 Wis. 506. 10 Weaver v. Livingston, Hopk. Ch. (N. Y.) 670; Abergavenny v. Abergavenny, 2 Bq. Abr. 179; Hale v. Continental Life Ins. Co., 20 Fed. 344. See, also. Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 605; Turner v. Turner, 1 Dickens, 316. Where, under Rev. St. 111. c. 22, § 24, a bill is taken as confessed for insufficient answer, the entire bill is so taken, and not merely that part to which the answer was insufficient. Bauerle v. Long, 165 111. 340, 46 N. E. 227. i2Denison v. Bassford, 7 Paige (N. Y.) 370. (186) Ch. 7] TAKING BILLS AS CONFESSED. § 144 who has not been served with process,^ ^ and the process must have been executed upon the defendant in a proper way, and in sufficient time, or he must have entered his appearance.^'* § 143. Necessity of entry of rule to answer. In some jurisdictions it is held that, before a complainant shall take a bill •pro confesso, the defendant must be ruled to answer. ^^ '^ In Illinois it is held that the rendition of a decree on the overruling of a demurrer to a bill without first ruling the defendant to answer is not error, and that the rendition of a decree upon a bill taken as confessed is a matter of discre- tion ;'" and that, where service by publication is duly made, it is not necessary, under the statute, that defendants be ruled to an- swer the bill /but that where there is no rule to answer cross bills against defendants therein, no default taken, and no order en- tered taking such cross bills as confessed against them, it is error to grant the relief prayed therein.^" § 144. Proof of regularity of proceedings. In some jurisdictions an affidavit requiring an affirmative showing of the nonappearance or default of the defendant, as 13 Hurter v. Robbins, 21 Ala. 585; Outhwite v. Porter, 13 Mich. 533; Frazier v. Frazier's Ex'rs, 2 Leigh (Va.) 642. It Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417; Chewning v. Nichols, Smedes & M. Ch. (Miss.) 122; King v. Harrington, 14 Mich. 532; Tompkins v. Wiltberger, 56 111. 385; Tripp V. Vincent, 8 Paige (N. Y.) 76; Evarts v. Becker, 8 Paige (N. Y.) 506; McCoy's Ex'r v. McCoy's Devisees, 9 W. Va. 443; Central Bank of Frederick v. Copeiand, 18 Md. 305; Grewar v. Henderson, 1 Tenn. Ch. 76; Meyer v. Kuhn, 25 U. S. App. 174, 65 Fed. 705; Cook v. Rogers,' 64 Ala. 406. 15 Pendleton v. Evans, 4 Wash. C. C. 336, Fed. Cas. No. 10,920; Hal- derman v. Halderman, Hempst. 407, Fed. Cas. No. 5,908; Sterling v. Ashton, 12 Phila. (Pa.) 227; Nesbit v. St. Patrick's Church, 9 N. .J. Eq. 76. For present federal practice, see United States Equity Rule 18; Schofield y. Horse Springs Cattle Co., 65 Fed. 433. 18 Roach V. Chapin, 27 111. 194; Grob v. Cushman, 45 lU. 119. 17 Michael v. Mace, 137 111. 485, 27 N. E. 694. For chancery practice in New York, see Livingston v. Woolsey, 4 Johns. Ch, (N. Y. ) 365. (1S7) § 145 EQUITY PLEADING AND PRACTICE. [Ch. 7 a preliminary to an order -pro coiifesso, is required.^ In other jurisdictions no such affidavit is required. This is true in Illi- nois and the federal courts. § 145. Pleadings to sustain decree pro confesso. The allegations of a bill taken pro confesso are to be con- strued strictly.^V Thoiigb a bill be taken for confo^^sed, if its allegations are not clear, specific, and certain, no decree can be correctly rendered.^" A decree pro confesso cannot supply the want of equity apparent on the face of a bill.^^ A decree pro confesso only concludes defendants to the extent of the aver- ments in the bill. They cannot object to the sufficiency of proof, but only that the averments do not justify the decree.^/ Mat- ters of fact, properly alleged in a bill taken pro confesso, must be taken as true ; but the deductions of law or results from facts, where those results are stated without alleging the facts suffi- 18 Michigan Chancery Rule 16; Low v. Mills, 61 Mich. 35, 2i N. W. 877; Nott v. Hill, 6 Paige (N. Y.) 9; McCahill v. Equitable Assur. Soc, 26 N. J. Eq. 531. 19 Breckinridge v. Waters' Heirs, 4 Dana (Ky. ) 620. 20 Marshall v. Tenant, 2 J. J. Marsh. (Ky.) 155, 19 Am. Dec. 126. 21 West Feliciana R. Co. v. Stockett, 27 Miss. 739; Non-Magnetic Watch Co. of America v. Association Horlogere Suisse of Geneva, 45 Fed. 210; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. In Arkansas it is held that, where a decree is rendered on de- fault, the allegations of the bill must be sufficient to warrant the re- lief prayed for, and granted by the decree; and where the default is upon constructive notice, a greater degree of certainty is required in the allegations than where the decree is rendered on actual service of subpoena or appearance of the defendant, and no intendment of fact not within the allegations can be made to support such decree. Clarke V. Strong, 13 Ark. 491; Brodie v. Skelton, 11 Ark. 132. And if a bill is filed to divest title to land belonging to minors and adults as ten- ants in common, and the adults enter a disclaimer m favor of the com- plainant, a decree divesting their title is proper, as they are sui juris, and bound by the disclaimer; but if one of the adults fails to defend, and an order pro confesso is entered against him, the bill showing on its face that complainant is not entitled to the relief he asks, a de- cree founded alone on such order cannot be made divesting the adult of such title. Ross v. Ramsey, 3 Head (Tenn.) 15. 22 Herring v. Woodhull, 29 111. 92, 81 Am. Dec. 296; Gault v. Hoag- land, 25 111. 266; Doak v. Stahlman (Tenn. Ch. App.) 58 S. W. 741. (188) Ch. 7] TAKiNG BILLS AS CONFESSED. § 146 ciently, are not to be taken for confessed.^^ It is said that whenever a bill not answered at all is taken for confessed for want of an answer, all the matters therein charged, whether they involve a penalty, forfcitiire, or infamous punishment or not, or whether they are confined to the defendant's knowledge or not, are to be considered as admitted, and a decree pronounced upon them as if true.^V Upon a bill taken for confessed against a defendant, no relief can be granted beyond the fair scope of its allegations and prayers. ^^/ Upon a proceeding for partition, if the decree exceeds the prayer of the bill, which was taken pro confesso, it may be reversed. ^'^ § 146. Proof of bill. It is held that the bill, when' taken as confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty /but in respect to matters not alleged with due certainty, or matters which, fromi their nature and the course of the court, require an examination of details, the ob- ligation to furnish proof rests on the complainant.^^ It is purely a matter of discretion with the court whether it will re- quire the complainant to make proof against defendants who fail to answer."-^* A party against whom a bill has been taken for confessed cannot complain and assign for error that the proof does not sustain the allegations of the bill.^''/ He has no right / 23 Craig V. Horine, 1 Bibb (Ky.) 113. =!i Atterberry v. Knox, 8 Dana (Ky.) 282. 25 "VVing V. Cropper, 35 111. 256; Goodhue v. Churchman, 1 Barb. Ch. (N. y.) 596; Johnston v. Kelly, 80 Ala. 135; Chadwell v. McCall, 1 Tenn. Ch. 640; Doak v. Stahlman (Tenn. Ch. App.) 58 S. W. 741. 20 Forquer v. Forquer, 21 111. 294. See, also, Gold v. Ryan, 14 111. 53. s'^ Williams v. Corwin, Hopk. Ch. (N. Y.) 534; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; Harmon v. Campbell, 30 111. 25; Ward v. Jewett, Walk. (Mich.) 45; Welsh v. Solenberger, 85 Va. 441, 8 S. B. 91; Davis v. Speiden, 3 MacArthur (D. C.) 283; Henry v. Seager, 80 111. App. 172; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. 28 Ferguson v. Sutphen, 8 111. 547; Manchester v. McKee, 9 111. 511. 29 Manchester v. McKee, 9 111. 511; Johnson v. Donnell, 15 111. 97; Roby V. Chicago Title & Trust Co., 194 111. 228, 62 N. E. 544. (ISO) § 148 EQUITY PLEADING AND PRACTICE. [Ch. 7 to have the evidence, if the court hear any, preserved in the record.^" Where evidence is heard, the presumption is that the court heard all the evidence that was necessary to sustain, a de- cree.^^ If the proofs introduced destroy the case made by the bill, the complainant can have no decree in his favor.^^ § 147. Eeference to determine complainant's claims. Where a bill is taken pro confesso, the court may refer the cause to a master, to compute the amount due, or to take proof and report to the court. ^^ § 148. Notice to defendant. It is held in some jurisdictions that a distinction exists be- tween a case where a defendant has appeared and failed to an- swer, and a case where a defendant has failed to appear. / A de- fendant who has appeared by his solicitor is entitled to notice of all the subsequent proceedings in the cause, although he suf- fers the complainant's bill to be taken as confessed ; and a de- cree against him ex parte, without notice to his solicitor, at the hearing, will be set aside as irregular.^* / 30 Farnsworth v. Strasler, 12 111. 482; Smith v. Trimble, 27 111. 152. 31 Moore v. Titman, 33 111. 358. 32 Atkins V. Faulkner, 11 Iowa, 326; Laney v. Laney, 4 Ind. 153. It is said that an order pro confesso is equivalent to an answer admit- ting the allegations of the bill to be true. Stone v. Duncan, 1 Head (Tenn.) 103. A pro confesso much more nearly resembles an answer admitting the charges of the bill than a demurrer. Patterson v. Ingra- ham, 23 Miss. 87. 33 Moore v. Titman, 33 111. 358; Buck v. Fischer, 2 Colo. 182; Mus- sina v. Bartlett, 8 Port. (Ala.) 277; Chapman v. Gibbons, 44 Miss. 113; Armstrong v. Douglas Park Bldg. Ass'n, 60 111. App. 318; Southwick V. Van Bussum, 1 Paige (N. Y.) 648. See, also, Hazard v. Durant, 12 R. I. 99. Upon taking a bill as confessed, the court may enter a de- cree pro confesso, or refer the case to a master to take proof and re- port, and, when so referred, it is held that the defendant has a right to appear and cross-examine the witnesses for complainant, but that he has no right to offer evidence of matter^ of defense not set up in an answer. Bauerle v. Long, 165 111. 340, 46 N. E. 227. 34 Hart v. Small, 4 Paige (N. Y.) 551; Armstrong v. Douglas Park Bldg. Ass'n, 60 111. App. 318; Van Valkenburg v. Trustees of Schools, (100) Ch. 7J TAKING BILLS AS CONFESSED. § 149 § 149. Effect of defense by one of several defendants. Where a bill is filed against joint defendants, and is taken for eonfessed against one or more of them, and one or more of the other defendants appear, make defense, and disprove com- plainant's case, the bill should be dismissed as to all defend- ants.^/ As a general rule, the answer of one defendant is not evidence against his co-defendants, and the failure of one de- fendant to answer, and a pro confesso decree against him, do not entitle the complainant to take the allegations of the bill as true as against another who does answer.^® If one of several defendants to a bill making a joint charge of conspiracy and fraud makes default, his default and a formal decree pro con- fesso may be entered, but no final decree will be made on the merits until the case is disposed of with regard to the other de- fendants. / The defaulting defendant is simply out of court, and can take no further part in the case.^'' In a suit against defendants whose defenses are the same, though they are per- sonal to each, a discharge of one of them will not inure to the 66 111. 104; Southern Pac. R. Co. v. Temple, 59 Fed. 18; Wampler v. Wolfinger, 13 Md. 337; Mussina v. Bartlett, 8 Port. (Ala.) 277; Buck V. Fischer, 2 Colo. 182; Moore v. Titman, 33 111. 358. For practice in other jurisdictions, see Clinch River Mineral Co. v. Harrison, 91 Va. 122, 21 S. E. 660; Bank of United States v. White, 8 Pet. (U. S.) 262; Austin V. Riley, 55 Fed. 833. In New Jersey it is held that a decree pro confesso may be taken at any time, as of course, after the time has expired within which the defendant is required to plead, demur, or answer, and without notice, unless it appears that some prejudice will thereby accrue to the adverse party. Oakley v. O'Neill, 2 N. J. Eq. 287. 35 Driver v. "White (Tenn. Ch. App.) 51 S. W. 994; Hargrove v. Mar- tin, 6 Smedes & M. (Miss.) 61; McDaniel v. Goodall, 2 Cold. (Tenn.) 391; Ashby v. Bell's Adm'r, 80 Va. 811; Walsh v. Smyth, 3 Bland (Md.) 9; Cartigne v. Raymond, 4 Leigh (Va.) 579; Farmers' Bank of State of Delaware v. Gilpin, 1 Har. (Del.) 561; Lingan v. Henderson, 1 Bland (Md.) 236; Kelly v. Brooks, 57 Miss. 225. 38 Holloway v. Moore, 4 Smedes & M. (Miss.) 594; Fulton v. Wood- man, 54 Miss. 158. 37 Frew v. De la Vega, 15 Wall. (U. S.) 552; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742. (lOi) § 150 EQUITY PLEADING AND PRACTICE. [Qh. 7 benefit of another, against whom an order pro confesso has been taken.^®- § 150. Nature and effect of orders pro confesso. There is a difference between orders that bills be taken fro confesso and actual decrees pro confesso. The latter are consid- ered, when compared with the former, more sacred, and to be disturbed only for weighty reasons.^® The only effect of an order pro confesso is to enable the case to be proceeded with ex parte against the defendant as to whom it is taken. When such an order is entered, the cause must be brought to a hearing, as well as in othef cases.*"/ It is said that an order for a bill to be taken pro confesso is interlocutory, and intended to prepare the case for the final decree./ Its effect is similar to that of a default in an action at common law, by which the defendant is deemed to have admitted all that is well pleaded in the declara- tion. The defendant has lost his standing' in court, but the mat- ters set forth in the bill do not pass in rem judicatain until the final decree. The bill is still to be read, that the court may then determine whether there is cause, upon the allegations, to decree for the complainant, and it by no means follows that such will be the decree.*-' Under the practice prevailing in most juris- dictions, including the federal courts, ' a decree pro confesso is not a decree, as of course, according to the i^rayer of the bill, ' nor merely such as the complainant chooses to make it, but it should be made by the court according to what is proper to be decreed upon the statements of the bill, assumed to be true.t^ 3s Simpson v. Moore, 5 Lea (Tenn.) 372. See Ft. Payne Bank v. Ala- bama Sanitarium, 103 Ala. 358, 15 So. 618; Butler v. Kinzie, 90 Tenn. 31, 15 S. W. 1068. 39 Robertson v. Miller, 3 N. J. Eq. 451; Knight v. Young, 2 Ves. & B. 184, ■"' 1 Barbour, Ch. Pr. 369; Rose v. WoodruS, 4 Johns. Ch. (N. Y.) 547; Lockhart v. Horn, 3 Woods, 542, Fed. Cas. No. 8,446. 41 Rose V. Woodruff, 4 Johns. Ch. (N. Y.) 547, 1 N. Y. Ch. Rep. (L. Ed.) 932, note; Russell v. Lathrop, 122 Mass. 300; Forbes v. Tucker- man, 115 Mass. 115. 42 Thomson v. Wooster, 114 U. S. 104; Andrews v. Cole, 20 Fed. 410; Ch. 7] TAKING BILLS AS CONFESSED. § 151 Under tlie Englisli chancery practice, it was necessary that an order taking a bill for confessed be entered before a final de- ■ cree pro confesso could be rendered.^^ In some jurisdictions it is held that the omission to enter a formal order that a bill be taken pro confesso against the defendants will not affect the regularity of the final decree, or make it any the less absolute.** It would seem to be the better practice to enter such an order prior to the rendition of the final decree.*^ § 151. Decrees pro confesso. y As heretofore stated, where a bill is taken pro confesso, the ^ cause must be brought to a hearing as in other cases. *^ Where \ it appears upon the hearing that the complainant has no equity, ! the bill will be dismissed.*^ Like any other decree, it cannot j be impeached collaterally, but only upon a bill of review or ' to set it aside for fraud, or by appeal or errory where such pro- ceeding is extended to the chancery practice.*®/ A cause in j Rose V. Woodruff, 4 Johns. Ch. (N. Y.) 547; Geary v. Sheridan, 8 Ves. 192; Barrett v. Birmingham, 1 Ir. Eq. 417; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. See, however, 1 Hoffman, Ch. Pr. 551. *3 Shields' Heirs v. Bryant, 3 Bibb (Ky.) 525; Groce v. Field, 13 Ga. 29; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 518. See Albright v. Texas, S. F. & N. R. Co., 8 N. M. 422, 46 Pac. 448. *4Linder v. Lewis, 1 Fed. 378; Savage v. Berry, 2 Scam. (111.) 545; Bank of United States v. White, 8 Pet. (U. S.) 262. In Maryland it is held that the recital in a decree that an order to take the bill pro confesso, etc., has been duly served, is sufficient evidence of the fact in the appellate court, in the absence of all direct proof to the contrary. Fitzhugh V. McPherson, 9 Gill & J. (Md.) 51, citing Rigden v. Martin, 6 Har. & J. (Md.) 407. See, also. Cole v. Johnson, 53 Miss. 94. 45 Linder v. Lewis, 1 Fed. 381; Bank of St. Marys v. St. John, 25 Ala. 566; Long v. Long, 9 Md. 348; Stephenson v. Parkins, 2 Edw. Ch. (N. Y.) 218; Thomson v. Wooster, 114 U. S. 104. *e 1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Geary v. Sheridan, 8 Ves. 192. See post, § 705. « Landon v. Ready, 1 Sim. & S. 44. *3i Barbour, Ch. Pr. 370; Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 541; Ogilvie v. Heme, 13 Ves. 563. See, however. Knight v. Young, 2 Ves. & B. 184. (193), Equity — 13 § 151 EQUITY PLEADING AND PRACTICE. [Ch. 7 / which a decree has been made upon taking a bill pro confesso ^ may be reheard.*? The court is less indulgent in opening such a decree than in setting aside one obtained upon a default at the hearing.^** The proceedings under a decree pro confesso are the same as those under other decrees made upon a hearing. If the decree directs a reference to a master, the reference must be proceeded with in the master's ofiSce in the same way as any other reference.^^,/ A bill taken pro confesso cannot be read be- fore the master as evidence of the state of the account.''?^ , The necessity of a decree setting forth the manner in which the defendants have been served with process is somewhat con- fused/ In some jurisdictions it is held that where a decree re- cites on its face that all the defendants have been duly served with process, and in the absence of anything in the record to the contrary, the presumption is conclusive that the recital is truey on the principle that, when a court of general jurisdiction has pronounced judgment, its adjudication shall be as conclusive on the question whether the party was duly notified as on any other point necessary to the proper determination of the cause.^^ Thus, in Tennessee, it is held that the recital in a decree pro eonfesso is sufficient in stating that "publication was made ac- cording to law," without giving details.''* In other jurisdic- tions it is held that a decree pro confesso, where there has been no entry of appearance, must state the facts necessary to show that publication has been made agreeably to the rules of prac- ticed^ The rule in Illinois has been the subject of much dis- cussion by the courts. /it is held that, in a direct proceeding to 49 1 Barbour, Ch. Pr. 370; Took v. Clark, 1 Dickens, 350. 60 Knight V. Young, 2 Ves. & B. 184. 61 1 Barbour, Ch. Pr. 372. 82 Dominicetti v. Latti, 2 Dickens, 588. 53 Moore v. Green, 90 Va. 181, 17 S. E. 872; Ferguson's Adm'r v. Teel, 82 Va. 690. 54 Gilliland v. Cullum, 6 Lea (Tenn.) 521; Robertson v. Winchester, 85 Tenn. 171, 1 S. W. 781. 55 Keiffer v. Barney, 31 Ala. 192. See Chilton v. Alabama Gold Life Ins. Co., 74 Ala. 290. (194) Ch. 7] TAKING BILLS AS CONFESSED. § 152 review a decree, the recital in the decree that the requirements of : the law have been complied with cannot prevail as against af-/ firmative proof in the record to the contrary.^® § 152. Forms of orders pro confesso (as used in Cook county, Illinois) . [Title of court and cause.] It appearing to the court that due personal service of summons has been had on the defendant, A. B., at least ten days before the first day of this term, being the return day of said summons, on the mo- tion of complainant's solicitor. It is ordered by the court that the defendant above named be, and he is hereby, required to plead, answer, or demur, instanter, to the bill of complaint filed in this cause; and no plea, answer, or demur- rer, or other matter of defense being interposed herein by the said defendant, and he being now here three times solemnly called in open court, comes not, nor does any person for him, but herein he makes default, which is, on motion, ordered to be taken, and the same is herein entered of record. And it is ordered that the said bill of complaint be, and the same is hereby, taken pro confesso against the said A. B., for want of his answer thereto. Service by publication. [Title of court and cause.] It appearing to the court that the defendant, Richard Roe, has been duly notified of the pendency of this cause, by publication, and by mail- ing the same to him, pursuant to the statute in such case made and provided, on motion of complainant's solicitor. It is ordered, etc. 06 White V. City of Chicago, 188 111. 392, 58 N. B. 917; Law v. Grom- mes, 158 111. 492, 41 N. E. 1080; Reddick v. State Bank, 27 111. 145; Bradley v. Drone, 187 111. 175, 58 N. B. 304. In case of collateral at- tack, all reasonable presumptions are in favor of the jurisdiction of the court, and the law will presume, prima facie, at least, from the findings of the court, that such was the fact. Thus, where an admin- istrator's order of sale recites that all of the defendants have been duly served with process, as the law requires, more than the lawful time prior to the sitting of the court, it will be presumed on collateral attack, even if the summons in the record is void, and the certificate of publication defective, that notice and proper summons were issued and served, and that proper publication was had, and a correct certifi- (195) § 153 EQUITY PLEADING ANB PRACTICE. [Ch. 7 Where there is an appearance. [Title of court and cause.] It appearing to the court that the defendant, A. B., has filed his ap- pearance herein, and has failed to answer the bill of complaint herein, on motion, etc. ■ On withdrawal of answer. [Title of court and cause.] On motion of the solicitor for the defendant, A. B., It is ordered that leave he, and the same is hereby, given the said defendant to withdraw his answer heretofore filed in this cause, and the same is hereby withdrawn. And it appearing to the court that the defendant has failed to answer the bill of complaint in this cause, on motion of complainant's solicit- or, etc.er § 153. Effect of tailing a decree pro confesso. The defendant, as against whom a bill has been taken as con- fessed, still has a right to be heard upon the form of the decree, and to appeal from it.^*/ A decree 'pro confesso precludes the defendant from denying the sufficiency of the proof, but it is open to him, on error, to show that the averments of the bill do not justify the decree.^® An order pro confesso is an admission only of the facts which are well pleaded, and cannot aid or sup- cate of notice and of publication was before the court. Bradley v. Drone, 187 111. 175, 58 N. E. 304. See Robertson v. Winchester, 85 Tenn. 171, 1 S. W. 781. But in a direct, not a collateral, attack upon the de- cree, the same recital in the decree of compliance with the statute can- not prevail as against the afiirmative proof in the record to the con- trary. White v. City of Chicago, 188 111. 392, 58 N. E. 917; Law v. Grommes, 158 111. 492, 41 N. E. 1080. iiT For form of order upon a judgment creditors' bill, taken pro con- fesso, under the New York chancery practice, see Stephenson v. Par- kins, 2 Edw. Ch. (N. Y.) 218-. 58Blanchard v. Cooke, 144 Mass. 207, 11 N. E. 83; Butterworth v. Hill, 114 U. S. 128. For rights of heirs and personal representatives after default and death of defendant, see Christie v. Bishop, 1 Barb. Ch. (N. Y.) 105. For rights of purchaser pendente lite from defendant after default, see Watt v. Watt, 2 Barb. Ch. (N. Y.) 371. 68 Gault V. Hoagland, 25 111. 206; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. (196) Ch. 7] TAKING BILLS AS CONFESSED. § 154 plement defective averments.?'* It is not evidence as an admis- sion of the allegations of the bill, if the bill is afterwards dis- missed.®^ Where a defendant suffers a decree to be taken for confessed against him, he cannot, in the appellate court, take advantage of the statute of limitations, though it appear on the face of the bill that the time prescribed by statute as a bar had elapsed.®^ S 154. Effect of decree pro confesso where there is no personal service. Every independent government is at liberty to prescribe its own method of judicial process, and declare by what means par- ties shall be brought before its tribunals.®^ The manner in which a resident defendant shall be notified of a suit instituted against him, so as to authorize a personal decree against him, is a matter over which the law-making power of a state has absolute control.®* Thus it was held that the law of Ohio au- thorizing a personal judgment against a defendant upon whom process had been served by a copy left at his dwelling, he hav- ing absented himself to avoid service, could not be held invalid in Kentucky, as between residents of Ohio. ®^ /But a decree in personam against a person who is not a resident of the state where he is sued, and who has not been personally served with process or appeared, is held void both in the jurisdiction where rendered and in any other jurisdiction.®®/ «o McDonald v. Mobile Life Ins. Co., 56 Ala. 468, 61 Garrett v. Ricketts, 9 Ala. 529. 62 Patterson v. Ingraham, 23 Miss. 87. «3Mackay v. Gordon, 34 N. J. Law, 286; Hess v. Cole, 23 N. J. Law, 116; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184. 64 Biesenthall v. Williams, 1 Duv. (Ky.) 329; Mackay v. Gordon, 34 N. J. Law, 286; Hess v. Cole, 23 N. J. Law, 116; Mutual Life Ins. Co. V. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Corby v. Wright, 4 Mo. App. 443. 66 Biesenthall v. Williams, 1 Duv. (Ky.) 329. 66 Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185; Needham v. Thayer, 147 Mass. 536, 18 N. E. 429; Eliot v. McCor- mick, 144 Mass. 10, 10 N. E. 705; McGavock v. Clark, 93 Va. 810, 22 S. E. 864; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220. (197) § 156 EQUITY PLEADING AND PRACTICE. [Ch. 7 § 155. Decrees by confession against infants and other persons under disability. ^' The court will not take a bill for confessed against infant de- fendants under any circumstances.®^ A decree against infants must be based upon full proof, even though their guardian ad litem confessed the cause of action.®*/ It is said that it is doubt- ful whether a bill can be taken for confessed against a person under disability.®* § 156. Opening orders and decrees pro confesso. Applications to set aside orders and decrees 'pro confesso are addressed to the discretion of the court, upon the circumstances of each case, -and wiU, as a general rule, be granted, if not pro- ductive of injurious delay, and the applicant has not been guilty jof culpable negligence.''"/' Where a decree pro confesso is en- 1 tered on a bill fatally defective in its jurisdictional averments, ; it is the duty of the court, on its attention being called to the defect, to open the default, and, if it gives leave to amend the ' bill, to allow the defendant time to answer.^V' The power to open such a decree should not be exercised upon a mere desire to let in the defense on the merits. The facts established must show deceit, surprise, or irregularity in obtaining the decree, and that the defendant has acted bona fide, and with reasonable diligence, and has a meritorious defense, and the facts consti- tuting such defense must distinctly and satisfactorily appear.''^ 67 Mills V. Dennis, 3 John. Ch. (N. Y.) 367; Daily's Adm'r v. Reid, 74 Ala. 415; Enos v. Capps, 12 111. 255; Chaffin v. Kimball's Heirs, 23 111. 36; Tucker v. Bean, 65 Me. 352; Wells v. Smith, 44 Miss. 296; Haz- ard v. Durant, 12 R. I. 99. See supra, § 11; post, §§ 177, 318, 709. 88 Cost V. Rose, 17 111. 276; Reddick v. State Bank, 27 111. 145; Quig- ley v. Roberts, 44 111. 503. 69 Foster, Fed. Pr. (ad Ed.) § 103; Hazard v. Durant, 12 R. I. 99. T> Gwin V. Harris, Smedes & M. Ch. (Miss.) 528; Russell v. Waite, Walk. (Mich.) 31; Powell v. Clement, 78 111. 20; Dean v. Mason, 20 How. (U. S.) 198; Carter v. Torrance, 11 Ga. 654; Hall v. Lamb, 28 Vt. 85; Culver v. Brinkerhoff, 180 111. 552, 54 N. E. 585. 71 Nelson v. Eaton, 27 U. S. App. 677, 66 Fed. 376. See Davis v. Davis, 62 Miss. 818. 72 Stribling v. Hart, 20 Pla. 235. (198) Oh. 7] TAKING BILLS AS CONFESSED. § 156 It is not sufficient cause to warrant the setting aside of a pro confesso order, that counsel for the defendant was prevented from sooner preparing an answer from "press of business."'',?'' It is held that for surprise, mistake, accident, or other good cause the court has power, even after the enrollment of the decree, to open a regular decree, obtained by default, to let in a meritorious defense which the defendant has been prevented from using. '^^ It has been said that if a defendant comes in without unneces- sary delay, by motion or petition, after a decree pro confesso regularly taken, he will, upon any reasonable ground for in- dulgence, be permitted to answer, upon payment of costs. ''^ Lord Hardwicke said it was a question on which side the greater inconvenience would lie, and he finally opened the case, on pay- ment of costs of the default and of all subsequent proceedings, notwithstanding two years had elapsed after the decree had been made absolute on account of the defendant's not appearing at the hearing.''*^ ' In the federal courts a decree pro confesso i cannot be vacated after the expiration of the term at which it | was entered.'^!' One who has been served with a subpoena in a suit, and has consulted counsel, and then paid no further atten- tion, cannot have a decree against him opened on the ground of surprise.^* It is said that a decree pro confesso will be opened, or a final decree set aside, and defendants let in to answer, on T3 Cook V. Dews, 2 Tenn. Ch. 496; Totten v. Nance, 3 Tenn. Ch. 264. 74 Kemp V. Squire, 1 Ves. Sr. 205; Rogan v. Walker, 1 Wis. 631; Millspaugh v. McBride, 7 Paige (N. Y.) 509, 34 Am. Dec. 360; First Nat. Bank of Washington City v. Eccleston, 48 Md. 145; Mutual Life Ins. Co. of New York v. Sturges, 32 N. J. Eq. 678; Erwin v. Vint, 6 Munf. (Va.) 267. In Michigan it is held that, after a decree upon de- fault after appearance has been enrolled, it is subject to be opened for examination only on bill of review. Maynard v. Pereault, 30 Mich. 160. See McMicken v. Perin, 18 How. (U. S.) 507; Allen v. Wilson, 21 Fed. 881. 75 Emery v. Downing, 13 N. J. Eq. 59; Williams v. Thompson, 2 Brown Ch. 279. 78 Cunyngham v. Cunyngham, Amb. 89. 77 McGregor v. Vermont Loan & Trust Co., 104 Fed. 709; Brooks v. Railroad Co., 102 U. S. 107. 78 Miller v. Hild, 11 N. J. Eq. 25. (199) § 158 EQUITY PLEADING AND PRACTICE. [Ch. 7 proof of surprise, where no negligence is attributable to the de- fendants.^^ § 157. Imposing conditions. The court may impose conditions upon a defendant asking that a decree ^ro confesso be set aside,. It is a general rule that, where a defendant answers by favor of the court, he must be re- stricted to an equitable answer; and it is the settled practice of the court of chancery not to set aside a regular order taking a bill as confessed, to enable a defendant to set up an uncon- scientious defense; and where the defense is usiiry, the court frequently requires the defendant to undertake that he will not avail himself of that defense, except as to the amount of the usurious premium.*** / It is held that a motion of a party in contempt to open a default will be denied.®?/ § 158. Procee{iings to set aside order or decree pro confesso. An order or decree pro confesso should not be set aside to 79 Van Deventer v. Stiger, 25 N. J. Eq. 224. See Miller v. Hild, 11 N. J. Bq. 25; Babcock v. Perry, 4 Y'fis. 31. ■ so Quinoy v. Foot, 1 Barb. Cb. (N. Y.) 496; Vanderveer's Adm'r v. Holcomb, 22 N. J. Bq. 557; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.) 660. Where a default is set aside, and the defendant is allowed to come in and answer, the court will not debar him from setting up the statute of limitations, unless there are special circumstances, or the delay in appearing has affected the complainant's right to rebut the pleading of the statute. Douglas v. Douglas, 3 Edw. Ch. (N. Y.) 390. Where the neglect to put in an answer in time is sufficiently ac- counted for, and the answer, which is sworn to, shows a perfect de- fense to a part of the relief claimed by the bill, complainant is not entitled to a stay of proceedings upon a judgment, without giving se- curity to pay it, or so much of it as might ultimately be decided to be equitably due. Mumford v. Sprague, 11 Paige (N. Y.) 438. See, also. Gay V. Gay, 10 Paige (N. Y.) 369. Where the defendant has had an opportunity to set up his discharge under the bankrupt act as a techni- cal defense, and has failed to do so, the court will not open a regular default for the purpose of enabling him to set up such discharge. Freeman v. Warren, 3 Barb. Ch. (N. Y.) 635. 81 Bllingwood v. Stevenson, 4 Sandf. Ch. (N. Y.) 366; Johnson v. Pin- ney. 1 Paige (N. Y.) 646; Robinson v. Owen, 46 N. H. 38. See post, §§ 325, 415, 559. (200) Ch. 7] TAKING BILLS AS CONFESSED." § 158 permit a defendant to file an answer which fails to show a meri- torious defense.* V The better rule would seem to be that an application may be either by petition, properly verified, which is the more usual method, or upon motion, sustained by affidavit.** After an order that a bill be taken pro confesso, the mere putting in of an answer is not sufficient to set aside the order.**' A decree pro confesso will not be set aside on mere affidavits of the defendant that he is advised he has a good de- fense, without setting out de^nitely the facts constituting such defense, or submitting a sworn ans^ver.*^ Such motion should be accompanied by affidavits setting forth clearly the reasons, for ' setting it aside, and be accompanied with an answer and an offer ] to file the same.*? The defendant must either show that in good faith he believes that he has a good defense, by producing and moving upon the sworn answer which he intends to put in, or by stating the nature and facts of his defense in his petition, and swearing to the petition, or, if made on motion, in the affi- davit accompanying the motion.*'^ /Where a motion is resorted to for setting aside a decree pro confesso ^ the complainant should be served with notice of the motion, and copies of the affidavits 82 Ozark Land Co. v. Leonard, 24 Fed. 660; Keil v. West, 21 Fla. 508; Terry v. Trustees of Eureka College, 70 III. 236; Totten v. Nance, 3 Tenn. Ch. 264; Emery v. Downing, 13 N. J. Eq. 59; Biloxi City R. Co. V. Maloney (Miss.) 19 So. 832; Parker v. Grant, 1 Johns. Ch. (N. Y.) 630; Kelly v. Roane Iron Co. (Tenn. Ch. App.) 53 S. W. 1102. It is held that under a statute providing that no decree pro confesso shall be set aside except on filing a full and complete answer to the bill, such a decree will not be set aside for the purpose of allowing a plea to be filed. Bank of St. Marys v. St. John, 25 Ala. 566. 83 Emery v. Downing, 13 N. J. Bq. 59; Beekman v. Peck, 3 Johns. Ch. (N. Y.) 415. See French v. Hay, 22 Wall. (U. S.) 238; Fellows v. Hall, 3 McLean, 281, Fed. Cas. No. 4,722. 84 Carter v. Torrance, 11 Ga. 654; Piatt v. Griffith, 27 N. J. Eq. 207. 85 Schofield V. Horse Springs Cattle Co., 65 Fed. 433; Winship v. Jew- ett, 1 Barb. Ch. (N. Y.) 173. 86 Dunn v. Keegin, 4 111. 292; Cook v. Dews, 2 Tenn. Ch. 496; Wells V. Cruger, 5 Paige (N. Y.) 164. 87 Hart v. Lindsay, Walk. (Mich.) 72; Hunt v. Wallis, 6 Paige (N. Y.) 371; Goodhue v. Churchman, 1 Barb. Oh. (N. Y.) 596. See Wilson V. Waters, 7 Cold. (Tenn.) 323. (201) § 159 EQUITY PLEADING AND PRACTICE. [Ch. 7 on whicli it is intended to be naade.*^ A pro confesso decree against several defendants cannot be set aside as to all, on an answer sworn to by only one of them.^^ The affidavit should be made by the defendant himself, or, if made by counsel, suffi- cient reason should be shown for its not being made by the party.*^9- A defendant cannot object to the action of the court in setting aside a pro confesso order against a co-defendant.^^ Where the court reverses a decree against infant and adult de- fendants on their joint appeal, for the reason that the record fails to show proper service on the infants, if the decree as to the adults be based upon pro confessos, it is discretionary with the court to set aside such decree as against such adults.®^ § 159. Filing counter affidavits. It is held in some jurisdictions that, on a motion to vacate a decree, counter affidavits are properly receivable, to counteract the affidavit of the defendant offered in support of the motion.^* 88 Beekman v. Peck, 3 Johns. Ch. (N. Y.) 415. In Tennessee it is held that, as the petition is for leave to answer, it need not be ac- companied by the answer. Brown v. Brown, 86 Tenn. 277, 6 S. W. 869. 89 Cook v. Dews, 2 Tenn. Ch. 496. 80 Bank of Michigan v. Williams, Har. (Mich.) 219; Totten v. Nance, 3 Tenn. Ch. 264. 91 Exchange & Deposit Bank v. Bradley, 15 Lea (Tenn.) 279. 92 Moody V. McDuff, 58 Miss. 751; Ingersoll v. Ingersoll, 42 Miss. 155. See, also, Mansfield v. Hoagland, 46 111. 359. 93 Bowman v. Bowman, 64 111. 75; Truett v. Wainwright, 9 111. 418; Reed v. Curry, 35 111. 536; Wilson v. Waters, 7 Cold. (Tenn.) 323. See, also, Cain v. Jennings, 3 Tenn. Ch. 135; Hefling v. Van Zandt, 162 111. 162, 44 N. B. 424. The practice of filing counter aflidavits seems to have been recognized in New York, where it is held that it is not sufficient, in an opposing affidavit, where the adverse party has no opportunity to answer the same, to state the matter upon the belief of the deponent only. Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496. In Thelin v. Thelln, 8 111. App. 421, it is held that, on a motion to set aside a default and decree, counter affidavits are improperly admitted, and the practice of receiving counter affidavits is characterized as a vicious one. Men- dell V. Kimball, 85 111. 582. See, also, Scrafield v. Sheeler, 18 111. App. 507; Kalkaska Mfg. Co. v. Thomas, 17 111. App. 235, citing Hanford v. McNair, 2 Wend. (N. Y.) 286; Philips v. Blagge, 3 Johns. (N. Y.) 141. (202) Ch. 7]" TAKING BILLS AS CONFESSED. § 151 § 160. Setting aside orders and decrees pro conf esso discretionary. The interference of a court to relieve a party from the con- sequences of his default must depend upon sound discretion, arising out of the circumstances of the case./ There is no gen- eral and positive rule on the subject, and Lord Thurlow ob- served, in one case,®* that if the defendant comes in after a bill has been taken pro conf esso upon any reasonable ground of dili- gence, and pays costs, the court will attend to his application, if the delay has not been extravagantly long. Lord Hardwicke said it was a question on which side the greater inconvenience would lie; and he finally opened a cause two years after a de- fault, on payment of the costs of the default and of all subse- quent proceedings.®^ Where there had been gross negligence on the part of the defendant, and the principal and most material witness of the complainant had died since the bill was filed, the court refused to relieve the defendant, as opening the decree would be, perhaps, irremediable injury to the complainant.®" § 161. Effect of vacating decree pro confesso. The granting leave to answer after a decree pro confesso, and a reference to a master, and a report of the evidence, does not affect the reference or the evidence taken under it.®'' /When a In Gibson, Suit in Ch. § 235, p. 209, note, it is said that such counter affidavits should not be allowed. "As to the propriety of receiving cross affidavits upon motions of this character, we choose to say noth- ing more than that it is a practice of doubtful and dangprous tendency, and to be more encouraged in the breach than the observance." Bu- chanan V. McManus, 3 Humph. (Tenn.) 450. 94 Williams v. Thompson, 2 Brown Ch. 279. 95Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 539; Cunyngham v. Cunyngham, Amb. 89; Robson v. Cranmell, 1 Dickens, 61; Pittman v. McClellan, 55 Miss. 304; Yates v. Woodruff, 4 Edw. Ch. (N. Y.) 700; Boyd v. Vanderkemp, 1 Barb. Ch. (N. Y.) 273; Lansing v. McPherson, 3 Johns. Ch. (N. Y.) 424. 96Wooster v. Woodhull, 1 Johns. Ch. (N. Y.) 539. See, also, Wil- liamson V. Sykes, 13 N. J. Bq. 182; Buchanan v. McManus, 3 Humph. (Tenn.) 449; Carter v. Torrance, 11 Ga. 654; Brewer v. Dodge, 28 Mich. 359; Parker v. Grant, 1 Johns. Ch. (N. Y.) 630. 97 Grob V. Gushman, 45 III. 119. (203) § 162 EQUITY PLEADING AND PRACTICE. [C h. 7 , decree pro confesso has been vacated, a defendant cannot, under 1 leave to answer, demur.^^ § 162. Effect of amendment of bill. Where matters alleged in an amendment to a bill are wholly immaterial, it is not error to refuse to enter a decree pro con- fesso as to the original bill, which has been answered, upon tak- ing the amended bill for confessed for want of an answer.^^ / Where the complainant amends his bill after personal service of a subpoena on a defendant, who neglects to appear, the service of a new subpoena is not necessary to authorize the entering of an order to take the amended bill as conf essed ; ' and where he amends his bill during the running of the order for the absentee to appear, it is not necessary to obtain a new order for the absentee to appear and answer to the amended bill, and to advertise a second time.^"". ' On filing an amended bill, adding a new and material averment in a case, when the defendant has failed to appear it is held to be irregular to take an order pro confesso on the same day, and without serving new process ; and this irregularity is sufficient ground for opening a decree found- ed on such proceedings, and granting a rehearing.-"-^ Where an original bill is taken as confessed, and an amended bill is filed, making other persons parties, the order pro confesso is thereby opened. ■'^°^ ''Where a pro confesso order has been made, the ef- I feet of filing an amended or supplemental bill after such order i has been taken is to vacate the order, and the defendants are ad- j mitted to answer as though the decree pro co7ifesso had not been 98 Hand v. Hand, 60 N. J. Eq. 518, 46 Atl. 770. See, as to pleading statute of limitations In Maryland, Belt v. Bowie, 65 Md. 350, 4 Atl. 295. 99 Black V. Lusk, 69 111. 70. See post, § 412. 100 Bond V. Howell, 11 Paige (N. Y.) 233. 101 Harris v. Deitrich, 29 Mich. 366. See Reno's Adm'r v. Harper, 23 Miss. 154; Meyer v. Kuhn, 25 U. S. App. 174, 65 Fed. 705; Trustees of Real Estate Bank v. Bozeman, 15 Ark. 316. 102 Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75. See, also, Weight- man V. Powell, 2 De Gex & S. 570. (204) Ch. 7] TAKING BILLS AS CONFESSED. § 153 made.^"? A material amendment of a bill after a decree fro confesso for default in pleading has been opened is a waiver by tbe complainant of bis right to raise on appeal the question of the propriety of such order.^"* § 163. Statutory provisions for vacating decrees pro confesso. Frequently, statutory provisions or rules of court are found providing for the opening of orders and decrees pro confesso. ^In the absence of any statute or rule, the right to vacate such/ decree exists. ■^"^z 103 Gibson V. Rees, 50 111. 406, citing "Weightman v. Powell, 2 De Gex & S. 570; O'Callaghan v. Blake, 9 Ir. Eq. 220; Lyndon v. Lyndon, 69 111. 43; Bank of Utica v. Fincli, 1 Barb. Ch. (N. Y.) 75; Scudder v. Voorhis, 1 Barb. (N. Y.) 55. See, also, Albrigkt v. Texas, S. F. & N. R. Co., 8 N. M. 422, 46 Pae. 448. In Illinois it is held that it is not error to require a defendant already in court by service to answer a supplemental bill without further service, and, on his failure to do so, to render a decree pro confesso as to the supplement. Mix v. Beach, 46 111. 311. ' 10* Howard v. Pensacola & A. R. Co., 24 Fla. 560, 5 So. 356, citing Weightman v. Powell, 2 De Gex & S. 570; Jopling v. Stuart, 4 Ves. 619. 105 Williams v. Thompson, 2 Brown Ch. 279; Cunyngham v. Cunyng- ham, Amh. 89. In Illinois it is provided by statute that if the defend- ant shall appear at the next term, and offer to file his answer to the bill, the court shall permit him to do so upon his showing sufficient cause, and paying the costs of the preceding terms. In such case, the decree should be vacated, and the cause should be proceeded in as in other cases. Rev. St. 111. c. 22, § 17; Smith v. Brittenham, 88 111. 291. Provisions are found in many of the states for setting aside decrees pro confesso, 'where the defendant has been constructively served, within a given period after the same have been entered. Illustrative thereof is Rev. St. 111. c. 22, § 19. For a construction of this statute, see Lawrence v. Lawrence, 73 111. 577; Caswell v. Caswell, 120 111. 377, 11 N. E. 342; Whittaker v. Whittaker, 151 111. 266, 37 N. E. 1017; Southern Bank of St. Louis v. Humphreys, 47 111. 227; Martin v. Gil- more, 72 111. 193; Wellington v. Heermans, 110 111. 564; Trustees of Methodist Episcopal Church v. Field, 135 111. 112, 25 N. E. 667; Sale V. Fike, 54 111. 292. Similar statutes exist in other jurisdictions. See Brown v. Brown, 86 Tenn. 277, 6 S. "W. 869; Rodney v. Seelye, 54 Miss. 537; Lehman v. Collins, 69 Ala. 127; Rootes' Bx'x v. Tompkins' Trustees, 3 Grat. (Va.) 98; Porter v. Hanson, 36 Ark. 591. For prac- tice in federal courts, see Stuart v. City of St. Paul, 63 Fed. 644; Bron- son V. Schulten, 104 U. S. 415; United States Equity Rule 19. (205) § 165 EQUITY PLEADING AND PRACTICE. [Ch,7 § 164. Form of affidavit in support of motion to set aside order pro confesso. [Title of court and cause.] A. B., the above-named defendant, makes oath and says that [state facts showing the absence of negligence in failing to answer, and also showing meritorious defense to the bill]. Affiant therefore prays that the default heretofore had in this cause against him may be set aside, and that he may be permitted to file his answer herewith exhibited, a copy of which is hereto attached, and marked "Exhibit A,'' and made a part hereof, which answer he now offers to file in this cause. A. B. Subscribed and sworn to, etc. § 165. Form of order vacating default and order pro confesso. [Title of court and cause.] This cause having come on to be heard, upon the motion of A. B., de- fendant herein, to set aside the default and decree pro confesso herein, and on the affidavit filed in support of said motion, and the proposed answer to be filed herein, and the court being fully advised in the prem- ises, on motion of the solicitor for the said defendant. It is ordered, adjudged, and decreed that the said default and de- cree pro confesso herein be, and the same are hereby, vacated and set aside, and that said defendant be allowed, and leave is hereby given him, to file his answer to said bill of complaint. [If any terms are imr posed as a condition to setting aside the default, state them.] (206)^ CHAPTER VIII. APPEARANCE. § 166. Definition and nature. /'Appearance is a coming into court as a party to a suit.* An appearance is either general or special^/ By a general appear- ance, a defendant appears for all purposes in the suit ; by a spe- cial appearance, he appears solely for the purpose of objecting to the jurisdiction on account of a defect/omission, or irregu- larity in, the service of. the summons upon him, or perhaps f or^ some othef^eason.^ A_speciarappearance is sometimes termed a "conditiohal^ppearance."* Appearances are voluntary vs^hen the defendant comes in gratis, or upon the return of the sub- poena ; or compulsory, when it is the consequence of any of the processes of contempt.* vA defendant may, if he has been in- formed of a bill being filed against him, enter an appearance, or 1 Bouvier, Law. Diet. Certain text writers define appearance to be a formal proceeding by wbich the defendant submits himself to the jurisdiction of the court. 1 Barbour, Ch. Pr. 77; Beach, Mod. Eq. Pr. § 211; Foster, Fed. Pr. § 99; Flint v. Comly, 95 Me. 251, 49 Atl. 1044. This definition seems to be too broad, for the reason that, where a defendant appears specially, he does not submit himself to the juris- diction of the court. 2 Foster, Fed. Pr. § 99; Meyer v. Brooks, 29 Or. 203, 44 Pac. 281; Abbott V. Semple, 25 111. 107; St. Louis Car Co. v. Stillwater St. Ry. Co., 53 Minn. 129, 54 N. "W. 1064; South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank, 45 Neb. 29, 63 N. W. 128; Halstead v. Man- ning, Bowman & Co., 34 Fed. 565; Flint v. Comly, 95 Me. 251, 49 Atl. 1044. 3 1 Daniell, Ch. PL & Pr. (4th Ed.) 536. * 1 Barbour, Ch. Pr. 78. To be effectual, a voluntary appearance must be with the intention to appear in a suit known by the defendant to be pending. Crary v. Barber, 1 Colo. 172. What constitutes an appear- ance is determined by the course and practice of the court where it is entered. Cooley v. Lawrence, 12 How. Pr. (N. Y.) 176. (207) § 167 EQUITY PLEADING AND PRACTICE. [Ch. 8 I cause an appearance to be entered for him, -without waiting to I be served with process. This is called "appearing gratis."/ An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit.® § 167. What constitutes an appearance. ■^ It is the usual practice to file in the clerk's office of the court in which the cause is pending a paper entitled in the cause, re- citing that the party enters his appearance in the cause, either in person or by his solicitor.''/ Where a nominal defendant ac- knowledges service on the back of the summons, and in the same writing authorizes the complainant's solicitor to enter his ap- pearance, which is done on proof of the execution of the ac- knowledgment, such defendant is subject to the jurisdiction of the court.® The record, reciting the appearance of the defendant 5 1 Bartour, Ch. Pr. 78, 81; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 539; Foster, Fed. Pr. § 99; Georgia Lumber Co. v. Bissell, 9 Paige (N. Y.) 225. 6 Foster, Fed. Pr. § 100; Attorney General v. Pearson, 7 Sim. 290; Kentucky Silver Min. Co. v. Day, 2 Sawy. 468, Fed. Cas. No. 7,719; 1 Barbour, Ch. Pr. 81; Bozon v. Bolland, 1 Russ. & M. 69. For consid- eration of appearance gratis, and the effect thereof, see 1 Barbour, Ch. Pr. 81; Waffle v. Vanderheyden, 8 Paige (N. Y.) 45; Bowhee v. Grills, 1 Dickens, 38; Fell v. Christ's College, 2 Brown Ch. 279; Capel v. But- ler, 2 Sim. & S. 457; Perry v. Weller, 3 Russ. 519; Allard v. Jones, 15 Ves. 605; Hill v. Rimell, 2 Mylne & C. 641; Webster v. Threlfall, 1 Sim. & S. 136; Jones v. Fulghum, 3 Tenn. Ch. 193; Howe v. Willard, 40 Vt. 654. A party may likewise appear gratis at the hearing, and consent to be bound by the decree, if he is named as a party defendant upon the record. If he is not so named, it seems he can only so appear when the parties consent. 1 Barbour, Ch. Pr. 81; Capel v. Butler, 2 Sim. & S. 457; Bozon v. Bolland, 1 Russ. & M. 69; Attorney General v. Pearson, 7 Sim. 290. By appearing gratis, defendant could not, under the English practice, deprive the complainant of his right to move for an injunction ex parte. 1 Barbour, Ch. Pr. 81, 82; Allard v. Jones, 15 Ves. 605; Perry v. Weller, 3 Russ. 519. 7 See Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; Mutual Nat. Bank of New Orleans v. Moore, 50 La. Ann. 1332, 24 So. 304. 8 Snell V. Stanley, 63 111. 391. See, for appearance indorsed on sum- mons, Harrison v. Morton, 87 Md. 671, 40 AtL 897. See supra, § 133. (208) Ch. 8] APPEARANCE. g 168 by his attorney, affords presumptive evidence that the cunrt had jurisdiction of the defendant's person, and the authority of the attorney is also presumed.'' /liere attendance in court to , witness its proceedings in the cause does nut constitute an ap- | pearance.^"/ An entry reciting- that "defendants" appeared will be construed to include only those defendants served with pro- cess." An entry that the ])arties cnnie by their attorneys is sufficient evidence of their appearance.'" The ffling of a dc^ j murrer, plea, or ansAver constitutes an appearance.^'' / Where , there are several defendants, an appearance for defendants gen- erally must be construed as an appearance for all.-'''/ § 168. General or special appearance. '^An appearance not shown by a pi'oper entry to be special must | be taken as a general appearance,'-'' and an appearance for any, other purpose than to question the jurisdiction is general.W AJ party who appears t(j set up want of jurisdiction as a defense'/ " La-wrenoe v. Jarvis, 32 111. 311. 1" Crary v. Barber, 1 Colo. 172 ; Ne-wlove v. "Woodward, 9 Neb. 502, 4 N. W. 237. See Philhower v. Farley, 5 N. J. La-w J. 376. 11 ■Williams v. Lewis, 2 Slew. (Ala.) 41; Davis v. Whittaker. 38 Ark. 435; Chester y. Miller, 13 Cal. 558; Gardner v. Hall, 29 111. 277. 1- Hobson V. Emanuel, 8 Port. (Ala.) 442; Lawrence v. Jarvis, 32 IlL 304. Where there is such an entry, and the entry of a motion to dis- miss the suit, and also a motion for a continuance oi the cause, if such . an appearance can be limited, contradicted, or explained, it can only be done by clear and satisfactory evidence. Swift v. Lee, 65 111. 33C- 13 Protection Life Ins. Co. v. Palmer, 81 111. 88; Dart v. Hercules, 34 111. 395; Albert v. Clarendon Land Investment & Agency Co., 53 N. J. Eq. 623, 23 Atl. 8; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; Kauter v. Enty, 8 Kan. App. 788, 61 Pac. 818; Lowry v. Tile, Mantel & Grate Ass'n, 98 Fed. 817; Keyser v. Pollock, 20 Utah, 371, 59 Pac. 87. 1-4 Kenyon v. Shreck, 52 111. 382. Where a part of several defendants are served personally, and others by publication, an appearance by "the defendants" will be construed as an appearance by all of the de- fendants. Humphrey v. Newhall, 48 111. 116; Sullivan v. Sullivan, 42 111. 315. 15 Flake v. Carson, 33 111. 518; Collier v. Falk, 66 Ala. 223; Klein- schmidt v. Morse, 1 Mont. 100. 1" Abbott V. Semple, 25 111. 107. (209) Equity — 14 § 168 EQUITY PLEADING AND PRACTICE. [Ch. 8 must appear specially, by confining liis objections to that point, I or he will be held to appear for all purposes. ^ Where he makes several motions not relating to that objection, he will be con- sidered as having appeared generally. ^^ But \\here, \\hen the question of jurisdiction is decided against him, he takes no fur- ther step in the caiTse, either in person or by attorney, there is not such an appearance as authorizes his default to be taken. ^^ An appearance for the special purpose of objecting to defects in the process or service, or of making a motion to dismiss, is not a general appearance.^ ^ /Where a defendant appears solely for the purpose of objecting to the jurisdiction of the coiirt over I his person, such motion is not a voluntary apjjearance. Where, however, the motion involves the merits of the case, the rule is ■otherwise.^" /The taking of any proceeding other than a special appearance, and a. motion or plea thereon founded, is equivalent to a general appearance.-^/ Whether an appearance is general or special does not depend upon the form of the pleading, but on its substance. ^3^ Moving for a rule on the complainant to file a bond, and asking leave to attach a ^urat to an affidavit on file, constitute a general appearance ;r' and so i^an appearance by at- torney so as to secure an extension of time to plead or answer,/^ or obtaining a continuance by agreement of parties,-'' or moving 17 Abbott V. Semple, 25 111. 107. IS McNab V. Bennett, 66 111. 157. 19 Schoonhoven v. Gott, 20 111. 46, 71 Am. Dec. 247; Chubbuck v. Cleveland, 37 Minn. 466, 35 N. W. 362. 20 Flint V. Comly, 8.5 Me. 251, 49 Atl. 1044; Elliott v. Lawbead, 43 Ohio St. 172, 1 N. B. 577; St. Louis Car Co. v. Stillwater St. Ry. Co., 53 Minn. 129, 54 N. W. 1064; Handy v. Insurance Co., 37 Ohio St. 366. 21 Foster, Fed. Pr. § 100, citing .lones v. Andrews, 10 Wall. (U. S.) 327; Livingston v. Gibbons, 4 Johns. Ch. (N. Y.) 94; State of New Jersey v. People of New York, 6 Pet. (U. S.) 323; Van Antwerp r. Hulburd, 7 Blatchf. 426. Fed. Cas. No. 16,826; Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98. 22 Bankers' Life Ins. Co. v. Robbins, 59 Neb. 170, 80 N. W. 484. 23 Long v. Trabue, 8 111. App. 132. 24Briggs V. Stroud, 58 Fed. 717; Fonville v. Monroe. 74 111. 126. 2.-iBaisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726; Bazzo v. Wallace, 16 Neb. 290, 20 N. W. 315. (210) Ch. 8] APPEARANCE. § 168 for a continuance."* The filing of a motion to set aside and va- cate a void judgment, rendered without service of process, the ap- pearance being for the purpose of the motion only, does not con- stitute an appeai-ance so as to render that judgment valid.^ V Af- ter a general appearance, a defendant cannot enter a special ap- pearance ;5^and a defendant appearing specially, but afterwards contesting the case on its merits, waives the special appearance.^® yk. petition, in general terms, for the removal of a cause to the \ federal court, without specifying or restricting the purpose of the defendant's appearance in the state court, is not, like a gen- } eral appearance, a waiver of any objection to the jurisdiction of | the court over the person of the defendant, and does not amount ; to a general appearance, but constitutes a special appearance | only.^y By taking an appeal, the defendant submits to the jurisdiction of the lower court, and waives any irregularity in the process or its service,^-' and taking an appeal or writ of error is held to constitute an appearance by the party appealing -« Lane v. Leech, 44 Mich. 163, 6 N. W. 228; Shaffer v. Trimble, 2 G. Greene (Iowa) 464; Paisley v. Balsley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726. See, however, Hoyt v. Macon, 2 Colo. 113. ■^^ Greene v. Woodland Ave. & W. S. St. R, Co., 62 Ohio St. 67, 56 N. E. 642. ssBriggs V. Stroud, 58 Fed. 717; Lane v. Leech, 44 Mich. 163, 6 N. W. 228; Thompson v. Greer, 62 Kan. 522, 64 Pac. 48. 20 Sealy v. California Lumber Co., 19 Or. 94, 24 Pac. 197; Wlnfield Nat. Bank v. McWilllams, 9 Okl. 493, 60 Pac. 229; Crawford v. Foster, 84 Fed. 939. 3" Wabash Western 9,y. v. Brow, 164 U. S. 271; Spreen v. Delsignore, 94 Fed. 71. For consideration of effect of appearing for the purpose of filing a petition for removal to the federal court, see Tallman v. Balti- more & O. R. Co., 45 Fed. 156; Brooks y. Dun, 51 Fed. 138; Kinne v. Lant, 68 Fed. 436; Schwab v. Mabley, 47 Mich. 512, 11 N. W. 294; Goldie V. Morning News, 156 U. S. 518. aiHurford v. Baker, 17 Neb. 443, 23 N. W. 339; Adams Express Co. v. St. John, 17 Ohio St. 641; Brown v. Humphreys, 1 J. J. Marsh. (Ky.) 394; Bustamente v. Bescher, 43 Miss. 172; Hodges v. Frazier, 31 Ark. 58. It is held in Tennessee that praying a general appeal from the decree by a defendant not summoned, and who did not appear, consti- tutes an appearance. Akin v. Watson (Tenn. Ch. App.) 52 S. W. 905. (211) §170 EQUITY PLEADING AND PRACTICE. [Ch. 8 or suing out the writ of error as to all subsequent proceed- ings after remand.*^ § 169. Time for appearance. A defendant may, as soon as suit is brouglit against him, and without waiting to be served with summons, enter his appear- ance.^^ § 170. Effect of an appearance. J A general appearance waives process, and all objections to the form or manner of service thereunder.'**/ One who, in the ab- sence of fraud or imposition, by a voluntary appearance makes himself a party to a cause, is conclusively presumed to have notice of everything that appears of record in the case.^^ j\y- ' regularities in the manner in which a change of venue has been taken are waived by a motion for a contintiance in the court to which the case has been removed.^"/' In the absence of a rule of court requiring notice, the defendant, after the entry ■i-^ Chesapeake, 0. & S. W. R. Co. v. Heath's Adm'r, 87 Ky. 651, 9 S. W. 832; Bustamente v. Bescher, 43 Miss. 172; Allen v. Brown, 4 Mete. (Ky.) 342; Gill v. Johnson's Adm'rs, 1 Mete. (Ky.) 649; Scarlett v. Hicks, 13 Fla. 314. It is held in Wisconsin that a general appeal from a judgment by default does not waive the want of jurisdiction of the court to enter the judgment. Zimmerman v. Gerdes, 106 Wis. 608, 82 N. W. 532; Rockman v. Ackerman, 109 Wis. 639, 85 N. W. 491. •"' Hecht V. Feldman, 54 111. App. 144; Heyman v. Uhlman, 34 Fed. 686. When an appearance is required to be entered by statute or rule of court, these must be consulted. See Jones v. Everett Land Co., 15 U. S. App. 512, 61 Fed. 529. 3*1 Barbour, Ch. Pr. 78; 1 Hoffman, Ch. Pr. 171; Kinsella v. Cahn, 185 111. 208, 56 N. E. 1119; Groves v. Grant County Court, 42 W. Va. 587, 26 S. E. 460; Creighton v. Kerr, 20 Wall. (U. S.) 8; Mineral Point R. Co. V. Keep, 22 111. 9; Widdrington v. Charleton, 10 Mod. 86, cited in Strange, 155; Seattle, L. S. & E. Ry. Co. v. Union Trust Co. of New York, 48 U. S. App. 255, 79 Fed. 179; Rothschild v. Knight, 176 Mass. 48, 57 N. E. 337. ■■'■■> Austin v. Dufour, 110 111. 85. 3'iFlagg V. Roberts, 67 111. 485; Mannix v. State, 115 Ind. 245, 17 N. E. 565; Vinsen v. Lockard, 70 Ky. 458. (212) Ch. 8] APPEARANCE. g 171 of appearance, is required to take notice of all subsequent ac- tion on the part of the court.'" A party, by appearing to a cause and pleading to the merits, is estopped from denying the jurisdiction of the court over his person;^* but/^vhere a court is wholly without jurisdiction of the subject-matter, the objection is not waived by appearance and plea to the merits. 'y^ In a transitory cause, a voluntary a])pearance confers jurisdic- tion, though both parties are nonresidents of the state*" / AVhere a resident of one state appears generally in an action brought against him in another state, the jurisdiction of the court is complete. '^-'-^ If a nonresident has voluntarily submitted himself to the jurisdiction of the court, the procedure is in all respects the same as if he were a resident of the state.*^ § 171. Who may appear. E\erY litigant may appear in person or by attorney, ''■^ but ■■■■7 Domestic Bldg. Ass'n v. Nelson, 172 111. 386, 50 N. E. 194. Where, before the entry of a special appearance by a defendant, the cause was continued by agreement, and afterwards defendant not only appeared and defended generally, but filed a cross petition, objection to the original process was thereby waived. Hercules Iron Works v. Elgin, J. & E. Ry. Co., 141 111. 491, 30 N. E. 1050. Where a defendant ap- pears, answers, and goes to trial, without objection, at a term before the return term of the summons, he waives the right to postpone the hearing until the return term. Anderson v. Moore, 145 111. 61, 33 N. B. 848. ■■« Ferguson v. Oliver, 99 Mich. 161, 58 N. W. 43, 41 Am. St. Rep. 593; Black, Judgm. § 225. ■■*'■> Lackett v. Rumbaugh, 45 Fed. 23; Ervin v. Oregon Ry. & Nav. Co., 62 How. Pr. (N. Y.) 490; Piano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85. 4" Cofrode v. Gartner, 79 Mich. 332, 44 N. W.'623, 7 L. R. A. 511. See, however, dissenting opinion in case last cited, and Mason v. Blaireau, 2 Cranch (U. S.) 240. 41 German Bank v. American Fire Ins. Co., 83 Iowa, 491, 50 N. W. 53; Ferguson v. Oliver, 99 Mich. 161, 58 N. W. 43, 41 Am. St. Rep. 593; Flint v. Comly, 95 Me. 251, 49 Atl. 1044. « Flint V. Comly, 95 Me. 251, 49 Atl. 1044. *■■'■ Henck v. Todhunter, 7 Har. & J. (Md.) 275, 16 Am. Dec. 300. (213) §172 EQUITY PLEADING AND PRACTICE. [Ch. 8 not personally and by counsel.*^ One sued by a wrong name may appear to the action by his correct nanie.*° § 172. Authority to enter an appearance. In order to constitute a voluntary appearance, the appearance must be by the party or some one duly authorized.*® It was formerly held that a defendant was concluded by an appear- ance entered for him without his authority, and that the only redress he could obtain for such a wrong was an action against the person who had fraudulently assumed to act for hi-m.'''^ The modern rule is firmly settled the other way, and may be stated thus : /The entry of an appearance for a defendant carries with \it a presumption that it was entered by authority. If the con- trary be alleged, affirmative proof must be produced ; and until ■it is, the appearance will be held to be valid/ Btit on its being ' satisfactorily proved, promptly after the discovery of the fact that it was entered without authority, the defendant will be re- lieved from its consequences.*^ 44 Talbot V. Talbot's Representatives, 2 J. J. Marsh. (Ky.) 3; 1 Bar- bour, Ch. Pr. 80. ••5 T. W. Harvey Lumber Co. v. Herriman & Curd Lumber Co., 39 Mo. App. 214. "The principle 'Qui facit per alium facit per se' has no application to the right of the complainant to appear * * * through an agent who is not a licensed attorney." Kanape v. Reeves, 127 Ala. 216, 28 So. 666; Cobb v. Judge of Superior Court, 43 Mich. 289, 5 N. W. 309. « Rogers v. McLean, 31 Barb. (N. Y.) 304. See supra, § 119; post, 183. 47 Gifford V. Thorn, 9 N. J. Eq. 702; Price v. Ward, 25 N. J, Law, 225; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 An. 184; Eaton v. Pennywit, 25 Ark. 144; Lester v. Watkins, 41 Miss. 647; Rust v. Proth- ingham, 1 III. 331; Denton v. Noyes, 6 Johns. (N. Y.) 296, o ^m. Dec. 237. See Vilas v. Plattsburgh & M. R. Co., 123 N. Y. 440, 25 N. E. 941, 20 Am. St. Rep. 771. 48 Dey V. Hathaway Printing, Telegraph & Telephone Co., 41 N. J. Eq. 419, 4 Atl. 675; Mutual Life Ins. Co. v. Pinner, 43 N. J. Eq. 52, 10 Atl. 184; Raub v. Otterback, 89 Va. 645, 16 S. E. 933; Flint v. Comly, 95 Me. 251, 49 Atl. 1044; Byers v. Sugg (Tenn. Ch. App.) 57 S. W. 397. See Myers v. Prefontaine, 40 App. Div. 603, 58 N. Y. Supp. 70; Du Boise v. Clark, 12 Colo. App. 220, ,55 Pac. 750. A judgment (214) Ch. 8] APPEARANCE. t< 173 § 173. Withdrawal of appearance. '^ The court has power to allow a general appearance to be changed by amendment to a special appearance, or to be with- drawn. ''y^ A general appearance stands in lieu of the service of process, and the party whose general appearance has been en- tered in a cause is no more entitled to withdraw from the cause than one who has been regTilarly served with process.^" Wheth- er or not the court shall allow a general appearance to be with- drawn is discretionary with it.''^ Where a party not served ap- pears and files a plea, the withdrawal of the plea by consent of court does not withdraw his appearance.^ V" The fact that an attorney Avithdraws his appearance does not effect the with- drawal of defendant's appearance, or the pleading which the attorney has filed in his behalf."^ It is said that, if an attor- ney has erroneously entered an ap2)earance for a party, it may be withdrawn, provided it is done in due time, before any step taken in pursuance of it, and without occasioning loss or- prej- udice to the other party. ''^ Where the defendant, by leave of against a defendant who was never served with process, and whose appearance in the action was entered by an attorney witliout his Icnowl- edge or consent, may be enjoined. Mills v. Scott, 43 Fed. 452. See, also, for relief in chancery against unauthorized appearance, Anderson V. Hawhe, 115 111. 33, 3 N. E. 5«6; Sneed v. Town, 9 Ark. 535. •lo Foster, Fed. Pr. § 101; United States v. Yates, 6 How. (U. S.) 605; State of Rhode Island v. State of Massachusetts, 13 Pet. (U. S.) 23; Dana v. Adams, 13 111. 691. •"•" Famous Mfg. Co. v. Wilcox, ISO 111. 246, 50 N. E. 211. SI Voung V. Dickey, G;-l Ind. 3] ; State of Massachusetts v. State of Rhode Island. 12 Pet. (U. S.) 755. "- Mason v. Abbott, 83 111. 445; Dana v. Adams, 13 111. 691 ; Eldred v. Michigan Ins. Bank. 17 Wall. (U. S.) 545; Grigg v. Gilmer, 54 Ala. 425. 53 Mason v. Abbott, 83 111. 445. A solicitor who has entered an ap- pearance for a party will not be allowed to withdraw it on his state- ment alone that he had no authority to appear, the defendant not dis- avowing the right to appear. Mallet v. Girard, 3 Edw. Ch. (N. Y.) 372. 54 Jones V. Drum, 5 Rawle (Pa.) 249. See Dillingham v. Barron, 6 Misc. Rep. 600, 26 N. Y. Supp. 1109; Forbes v. Hyde, 31 Cal. 342; Haslet v. Street, 2 McCord (S, C.) 311. (315) §174 EQUITY PLEADING AND PRACTICE. [Ch. 8 court, witMraws his appearance, the case stands as if there had been no appearance or pleadings filed.'^^ § 174. Forms of appearance — G-eneral (in Illinois). [Title of court and cause.] To J. A. C, Clerk of said Court: I hereby enter the appearance of A. B., defendant in the above-en- titled cause, and of myself as his solicitor. E. F., Solicitor for Defendant A. B. Dated January 10th, A. D. 1902. -■« Special. [Title of court and cause.] Now comes J. N., who is named in the bill of complaint as one of the defendants in the above-entitled cause, and enters her special and limited appearance in this cause, for the sole purpose of objecting to the jurisdiction of the couit, and moving to quash the alleged service, and for no other purpose; and, for grounds of said motion to quash said alleged service, said defendant shows to the court: First. That the affidavit of nonresidence filed in said cause is insuffi- cient, in that [state ground of insufficiency]. Second. That an unreasonable period of time elapsed between the making of the affidavit of nonresidence and the filing of the same in said cause. 'Jl'hird. That the affidavit of nonresidence was subscribed and sworn to on the day of , 19 — , and that the same was not filed until the day of . 19 — . Fourth. That the publication of notice in this cause is wholly insuffi- cient, for the reason that L state ground of insufficiency], and confers no jurisdiction on this court over this defendant. C. & F., J. N., Solicitors for Defendant, J. N. Defendant.^i"' ■■■' Carver v. Williams, 10 Ind. 260; Lennon v. Rawitzer, 57 Conn. 583, 19 Atl. 334; Baker v. Ludlam, 118 Ind. 87, 20 N. E. 648; Dana v. Adams, 13 111. 691; Graham v. Spencer, 14 Fed. 603; Michew v. McCoy, 3 "Watts & S. (Pa.) 501. See Creighton v. Kerr, 20 Wall. (U. S.) 8; White v. Ewing, 37 U. S. App. 365, 69 Fed. 451; Day v. Mertlock, 87 Wis. 577, 58 N. W. 1037; Lodge v. State Bank, 6 Black! (Ind.) 557. For form of withdrawal of appearance, see Wilson v. Blakeslee, 16 Or. 45. ■'■« For forms of appearance considered by the courts, see Hoes v. Van Alstyne, 16 111. 384; Pignolet v. Daveau, 2 Hilt. (N. Y.) 584. ■•1 For forms of special appearance, see Thompson v. Greer, 62 Kan. 522, 64 Pac. 48; Lander v. Fleming, 47 Cal. 614; Tidwell v. Wither- spoon, 18 Fla. 282. (2i<;) • Ch. 8] APPEARANCE. i< 17G § 175. Appearance by corporations. Corporations aggregate appear by a solicitor in the same man- '1 ner as natural persons.^* § 176. Appearance by married women. / In the absence of statute, where a bill is filed against husband and wife, the husband is bound to enter a joint appearance for himself and his wife/^and if the husband only bo served, and has notice that his wife is also a defendant, he must enter a joint appearance for himself and wife, otherwise an attachment will issue against him, even though he appear and answer the bill. If an appearance is entered for the wife, and she does not an- sM'er, an attachment will issue against both.°^/' Where the man's wife refuses to join with him in his defense, or lives separate from him, and is not under his influence or control, he may ap- ply to the court by motion for leave to put in a separate an- swer from her. In all cases, after due service, process of con- tempt may be awarded against the husband for the default of [ the wife, miless an order be obtained to the contrary. / If the bill be brought against husband and wife, for a demand against the separate estate of the wife, and the husband is abroad, and not amenable to the process of the court, a subpoena may be served upon the wife alone, and she must appear and answer the bill. The proper course is for the complainant to petition the court, upon notice to the wife, for an order that she appear and answer separately, and that, if her apjiearance be not entered within a specified time, an attachment issue."'' Whenever a married woman ajjpears separately from her hiisband, she ap- pears without a guardian, unless she is an infant. ^^ Ijv stat- e's 1 Barbour, Ch. Pr. 87. •".o 1 Barbour, Ch. Pr. 82; Webster v. Threlfall, 1 Sim. & S. 136. 60 1 Barbour, Ch. Pr. 83; Dubois v. Hole, 2 Vern. 614; Bell v. Hyde, Finch, Prec. Ch. 328; Bunyan v. Mortimer, 6 Madd. 278; 1 Hoffman, Ch. Pr. 175, 176; Bushell v. Bushell, 1 Sim. & S. 164. A husband may appear for his wife, even where she is sued as executrix. 1 Barbour, Ch. Pr. 83; Bunyan v. Mortimer, 6 Madd. 278. (ill Barbour, Ch. Pr. 83; Hoffman, Ch. Pr. 174; 2 Newland, Ch. Pr. 193. (217) § 177 EQUITY PLEADING AND PRACTICE. [Ch. 8 utes^iii most jurisdictions, the ancient practice is abolished, and married women may appear as if they were unmarried./ § 177. Appearance by infants. /As a general rule, an infant cannot appear or plead by at- torney. His appearance is entered by his guardian ad litem,) who is appointed by the court on petition for that purpose, and who is responsible for the propriety and conduct of the defense, and who may be removed if he does not do his duty.''^ It is generally held that the appointment of a guardian ad litem for infant defendants, who have not been brought in by the proper service of process, is irregular and unauthorized." '' The qu.es- tion has arisen concerning the right to collaterally attack a de- cree rendered in a case where a guardian ad litem has been ap- pointed without service of process on the infant. Such a de- cree, according to the better authority, is void."^ It is held in some cases that, where the interest of an infant in real property within the state is involved, a decree cannot be collaterally at- tacked, though rendered in a case where a guardian ad litem 62 1 Barbour, Ch. Pr. 85, 86; Russell v. Sharpe, 1 Jac. & W. 482; Clark V. Turner, 1 Root (Conn.) 200; Walnwright v. Wilkinson, 62 Md. 146; Wood V. Wood, 2 Paige (N. Y.) 108; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. In England an infant er.tered his appearance without a guardian. 1 Hoffman, Ch. Pr. 171, citing 1 Fowler, Exch. Pr. 458. See supra, §§ 11, 155; post. § 318. 63 Walker v. Hallett. 1 Ala. 379; Price v. Crone, 44 Miss. 571; Linn- ville V. Darby, 1 Baxt. (Tenn.) 306; Sprague v. Haines, 68 Tex. 215, 4 S. W. 371; Ontario Bank v. Strong, 2 Paige (N. Y.), 301; Campbell v. Campbell, 63 111. 462; Westmeyer v. Gallenkamp, 154 Mo. 28, 54 S. W. 231. 64 New York Life Ins. Co. v. Bangs, 103 U. S. 435; Sloane v. Martin, 145 N. Y. 524, 40 N. E. 217; Phelps v. Heaton, 79 Minn. 476, 82 N. W. 990. There are some cases in which a judgment upon a personal de- mand has been sustained against collateral attack, though rendered in an action where the guardian ad litem had been appointed without previous service of process upon the infant; but they are exceptional, and there has generally been in them some circumstance which ren- dered any disturbance of the judgment likely to lead to great hardship and injustice. New York Life Ins. Co. v. Bangs, 103 U. S. 435; Bustard V. Gates, 4 Dana (Ky.) 429. See Manson v. Duncanson, 166 U. S. 533. (218) Ch. 8] APPEARANCE. ^ 177 had been appointed without service of process on the infant.®^ ''it is said that the decisions are uniform that a decree rendered against a minor, where no guardian ad litem has been appointed to defend for the minor, is not void, but voidable.^V Applica- tion for such appointment may be made by the infant in some jurisdictions, if he is above a given age, or by some disinterest- ed relative or friend./ If no such application is made, as a general rule the complainant may apply to the colirt to appoint a suitable person as guardian ad litem of such infant.®^/ The court will not permit an adverse party to select the guardian.^* The court may of its own motion appoint a guardian ad litem.^''' Notice should be given to the minor and his next of kin of the application for the appointment of a guardian ad litem.'''' The o"'Manson v. Duncanson, 166 U. S. 533; New York Life Ins. Co. v. Bangs, 103 U. S. 435; Preston v. Dunn, 25 Ala. 507; Gronfier v. Puy- mirol, 19 Cal. 629; Robb v. Irwin's Lessee, 15 Ohio, 689. In an action in a federal court in the nature of a suit in rem, seeking to subject certain property, in which an infant is interested, to the payment of partnership debts, the appointment of a guardian ad litem for such infant, upon application of the mother, is sufficient to give the court jurisdiction without actual service upon the infant. Sloane v. Martin, 145 N. Y. 524, 40 N. E. 217. See, also, Mohr v. Manierre, 101 U. S. 422; Ingersoll v. Mangam, 84 N. Y. 622; Gotendorf v. Goldschmidt, 83 N. Y. 110. 6(1 Millard v. Marmon, 116 111. 649, 7 N. E. 468; Trapnall's Adm'x v. Bank, 18 Ark. 63; Townsend v. Cox, 45 Mo. 401; Blake v. Douglass, 27 Ind. 416; Peak v. Shasted, 21 111. 137, 74 Am. Dec. 83; Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291; Roberts' Widow & Heirs v. Stanton,, 2 Munf. (Va.) 129. (i7 1 Barbour, Ch. Pr. 84, 85. For cases considering appointment on motion of complainant, see Ralston v. Lahee, 8 Iowa, 17, 74 Am. Dec. 291; Clarke v. Gilmanton, 12 N. H. 515; Bullard v. Spoor, 2 Cow. (N. Y. ) 430. For cases involving rights of persons other than complainant and infant, see Grant v. Van Schoonhoven, 9 Paige ( N. Y.) 255, 37 Am. Dec. 393. <58 Knickerbacker v. De Freest, 2 Paige (N. Y. ) 304; Rhoads v. Rhoads, 43 111. 239. CO Rhoads v. Rhoads, 43 111. 239. 70 Nelson v. Moon, 3 McLean, 319, Fed. Cas. No. 10,111; O'Hara v. MacConnell, 93 U. S. 152. See Frierson v. Travis, 39 Ala. 150. (210) § L79 EQUITY PLEADNG AND PRACTICE. [Ch. 8 consent of the minor is not necessary/^ but it is held that infant defendants above fourteen years of age should be consulted, if not attended with too much troiible and expense, as to which the chancellor must exercise a sound discretion.''^ Where a special answer is advisable or necessary to bring the rights of the infant properly before the court, the guardian ad litem should put in such answer.''^ The guardian ad litem and his counsel may exercise a discretion in declining to take, or taking, proceedings in the cause, where they are satisfied it is a clear case against the infant. ^^ Under the practice in most jurisdictions, in ordinary cases the giiardian ad litem employs a solicitor to enter the appearance of the infant, and to defend the suit for him. Where a solicitor is appointed guardian, it is usual for him to enter the appearance himself with the clerk. ^^ § 178. Consent of guardian ad litem to act. A guardian ad litem, must consent to act for the ward. This consent may be express, or implied from his conduct in the cause. '^^ § 179. Order of appointment. The appointment should be by order of court.'^^ When an Ti Beddinger v. Smith (Ark.) 13 S. W. 734; Banta's Heirs v. Calhoon, 2 A. K. Marsh. (Ky.) 166. "Walker v. Hallett, 1 Ala. 379. T-i 1 Barbour, Ch. Pr. 85; Knlckerbacker v. De Freest, 2 Paige (N. Y.) 304. 71 Levy V. Levy, 3 Madd. 24-5; 1 Barbour, Ch. Pr. 85. " 1 Barbour, Ch. Pr. 86. "> Greenup's Representatives v. Bacon's Bx'rs, 1 T. B. Mon. (Ky.) 108; Creech v. Creech, 10 Mo. App. 586. See Alexander v. Davis, 42 W. Va. 465, 26 S. B. 291; Daniel v. Hannagan, 5 J. J. Marsh. (Ky.) 49. It was the practice of the New York court of chancery to appoint no one to act as guardian ad litem without his written consent. McVickar v. Constable, Hopk. Ch. (N. Y.) 102. And a reasonable time will be al- lowed him to consider whether he will accept. Wells' Heirs v. Winfree, 2 Munf. (Va.) 342. In Alabama it is held that the record of his ap- pointment for Infant distributees must show his acceptance of the trust. Jenkins' Distributees v. Jenkins' Adm'r, 16 Ala. 693. T7 Madison's Heirs v. Wallace's Ex'rs, 2 J. J. Marsh. (Ky.) 581. (220) Ch. 8] APPEARANCE. § 180 answer is filed for infant defendants by one purporting to be their guardian ad litem, and the decree recites that he was so appointed, but the record shows no formal order of appointment, it will be presumed that the appointment was regularly made.^* If the record simply recites the appointment "on motion," with- out specifying on whose motion, and no other notice appears to have been given to the infants concerned, it is held that the court will presume that they were present in court at the time of the motion.^" It is not essential to the validity of an order appointing "the clerk of the court" guardian ad litem that he be designated by name.*" An order appointing a guardian ad litem for the "minor heirs of" a deceased person, not naming them, is a nullity. ^^ § 180. Form of petition for appointment of guardian ad litem. [Title of court and cause.] To the Honorable the Judges of the Circuit Court of County, in Chancery Sitting: Your petitioner, X. Y., respectfully represents that he is the com- plainant in the above-entitled cause; that the defendant, A. B., is a male infant or minor under the age of twenty-one years; that a sum- mons duly issued out of this court on the day of . A. D. . returnable to the term of this court, A. D. , di- rected to the sheriff of county, commanding him that he sum- mon the said defendant, A. B., and that said summons was duly served by the sheriff of county on the said A. B. by delivering a true copy thereof to him on the day of . A. D. . being more than days before the return day thereof; that said defend- ant, A. B., has not appeared in this cause; that no guardian ad litem has been appointed tor said A. B., and no application for the appointment of a guardian ad litem has been made by or on behalf of said infant; and that said A. B. resides with his father, J. B., at the city of . In the county of , in the state of . Your petitioner therefore prays that some fit and suitable person may •■< Tibbs V. Allen, 27 111. 119. See, also, Stevenson v. Kurtz, 98 Mich. 493, 57 N. W. 580; Sargeant v. State Bank of Indiana, 12 How. (U. S.) 371. But see McDonald v. McDonald, 3 W. Va. 676. 70 Horner v. Doe, 1 Ind. 130. 48 Am. Dec. 355; Thompson v. Doe, 8 Blackf. (Ind.) 336. s" Hess V. Voss, 52 111. 472. ■ Story, Eq. PI. § 270; Cooper, Eq. PL 19. Story, Eq. Pi. § 270. ~ Story, Eq. PI. § 270; Coffin v. Cooper, 6 Ves. 514; Williams v. Doug- las, 5 Beav. 82. That a stranger cannot refer a bill for scandal, see Anonymous, 4 Madd. 252. For practice concerning referring bills for scandal, see Woodward v. Astley, Bunb. 304; Wallis v. Atkinson, Fow- ler, Exch. Pr. 449; Ferrar v. Ferrar, 1 Dickens, 173; Wagstaff v. Bryan, 1 Russ. & M. 28; David v. Williams, 1 Sim. 17; Portsmouth v. Fellows, 5 Madd. 450; Robertson v. Graham, 3 Dow, 274. s See post. § 333 et seq. (225) Equity — 15 § 187 EQUITY PLBADNG AND PRACTICE. [Ch. 9 inspection is involved in mucli confusion, and is largely regu- lated by statute or rule of court.® It is said tiiat the court will, under special circumstances, order that the complainant should not compel the defendant to answer until within a given time after the production of certain documents set forth in the bill, when it appears that their production is essential to enable the defendant to put in his answer.^" yit would seem to be the better 9 Ryder v. Bateman, 93 Fed. 31; 15 & 16 Vict. c. 18, § 20; Boyd v. United States, 116 U. S. 616. See, for production of documents, Dick- inson, Eq. Pr. 151, 218; 2 Daniell, Ch. PI. & Pr. (6tli Ed.) 1817 et seq.; a. ollock. Prod. Documents. See post, § 370. 1 ' 1 Barbour, Ch. Pr. 101. Mr. Barbour cites, in support of this state- ment, Princess of Wales v. Earl of Liverpool, 1 Swanst. 114, 1 Wils. Ch. 113, 2 Wils. Ch. 29, where it was held that the proper order was not one to produce the document for inspection, but to enlarge the time of the ^'pfendant for answering the bill until such time as the complainant shL'ild deposit the document with the clerk of the court for the inspection of the defendant, and an order to such effect was entered. Jones v. Lt-vis, 2 Sim. & S. 242, is also cited by the author in support of the last-mt ".tioned proposition. But the order entered in the last-named case was discharged by Lord Eldon, as appears by the following memorandum in the original edition of 4 Sim. 324, which is generally left out of the reprints and decisions of the English Chan- cery Reports. Such memorandum is as follows: "The order made by Sir J. Leach, vice-chancellor, in Jones v. Lewis, reported in 2 Sim. & S. 242, was discharged by Lord Eldon, * * * without costs." This has generally been regarded as an indirect overruling of the Case of the Princess of Wales, and has been so treated by most of the judges who have subsequently considered the question. But some of them have adhered to the Princess of Wales Case, strictly limiting it, however, to the peculiar circumstances of that case, the most important of which was that in that case and in Jones v. Lewis the person whose signa- ture was said to be forged was dead, wherefore there was more reason or justice in departing from the ordinary rule, and allowing the execu- tors an Inspection of the document in order to determine whether or not there had been a forgery committed. Ryder v. Bateman, 93 Fed. 31. For English cases refusing to follow the Princess of Wales v. Earl of Liverpool, see Penfold v. Nunn, 5 Sim. 409; Milligan v. Mitchell, 6 Sim. 186; Brown v. Newall, 2 Mylne & C. 558; Jackson v. Sedgwick, 2 Wils. Ch. 167; Taylor v. Homing, 4 Beav. 235; Bate v. Bate, 7 Beav. 528, where Lord Langdale explains the distinction between his rulings. For other English cases where such a motion by defendant has been denied, see Pickering v. Rigby, 18 Ves. 484; Wiley v. Pistor, 7 Ves. 411; Micklethwait v. Moore, 3 Mer. 292; v. . 2 Dickens, 778; (226) Ch. 9] PROCEEDINGS BY DEFENDANT. t^ 188 doctrine that, as a general rule, the defendant is not entitled by j motion to call upon the complainant for the production of his I books or other documentary evidence in his possession before answer, to enable such defendant to make his defense.-^^ The rtile, however, is different as to partnership books and papers.^^ § 188. Security for costs. In most jurisdictions it is provided by statute or rule of court that in certain cases the defendant may, after his appearance has been entered, compel the complainant to give security for the costs before he can be allowed to proceed any further with the STiit.^* Burton v. Neville, 2 Cox, 242; Maund v. Allies, 4 Mylne & C. 503; Spragg V. Corner, 2 Cox, 109. See Wedderburn v. Wedderburn, 2 Beav. 212^; Shepherd v. Morris, 1 Beav. 175, 4 Beav. 252; Atliins v. Wright, 14 Ves. 211; Davers v. Davers, 2 P. Wms. 410; Attorney General v. Brooksbank, 1 Younge & J. 439; Elder v. Carter, 25 Q. B. Dlv. 194; Boyd v. Petrie, L. R. 5 Eq. 290. "Kelly V. Eckford, 5 Paige (N. Y.) 548, where Chancellor Walworth characterizes Princess of Wales v. Earl of Liverpool, 1 Swanst. 114, as "a political decision"; Ryder v. Bateman, 93 Fed. 31. See Evans v. Staples, 42 N. J. Eq. 584, 8 Atl. 528; Lupton v. Johnson, 2 Johns. Ch. (N. Y.) 429; Denning v. Smith, 3 Johns. Ch. (N. Y.) 409; Commercial Bank of Buffalo v. Bank of State of New York, 4 Hill (N. Y.) 516. Where a bill is filed by an executor for the settlement of his accounts, and for disclosures as to distribution, etc., the defendants are not en- titled, on petition, to an inspection of the accounts and vouchers of the executor to enable them to answer the bill. Denning v. Smith, 3 Johns. Ch. (N. Y.) 409; Kelly v. Eckford, 5 Paige (N. Y.) 549. 12 Kelly V. Eckford, 5 Paige (N. Y.) 549. But see Pickering v. Rigby, 18 Ves. 484, and Maund v. Allies, 4 Mylne & C. 503, where motions for the production of partnership papers were denied. "Neither will the court, upon motion by the defendant, in a bill for partnership account, direct the production of accounts before answer. But it seems that after answer, if he swears to his belief that the books are in the pos- session of the complainant, and that he (the defendant) cannot an- swer fully without them, the court will restrain all proceedings, for want of a suflicient answer, until he has been assisted with the inspec- tion." 1 Barbour, Ch. Pr. 101 ; Spragg v. Corner, 2 Cox, 109. 13 1 Barbour, Ch. Pr. 102-104; 1 Hoffman, Ch. Pr. 200-208. For Illinois statute on subject of security for costs, see Rev. St. 111. c. 33. See Chi- cago & I. R. Co, V. Lane, 130 111. 116, 22 N. E. 513; Ripley v. Morris, 7 (22Y) § 189 EQUITY PLEADING AND PRACTICE. [Ch. 9 § 189. Application to defend as pauper. ^ In England, by virtue of the orders of the court, defendants might be admitted to defend as paupers.^^/ It was said in New York, when the chancery practice there obtained, that it was at least doubtful whether a defendant was entitled to defend as a pauper in any case.-'^ III. 381; Roberts v. Fahs, 32 111. 474; Farnswortli v. Agnew, 27 111. 42 Wood V. Goss, 24 111. 626; Casey v. Horton, 36 111. 234; Kingsbury v. Buokner, 134 U. S. 650. For English practice, see Miglioruccl v. Mig- liorucci, 1 Dickens, 147; Meliorucchy v. Meliorucchy, 2 Ves. Sr. 24 Gordon v. Plunket, 1 Ball & B. 567, note; Prior v. WMte, 2 Moll. 361 Green y. Cbarnock, 3 Brown, Ch. 371; White v. Greathead, 15 Ves. 2 Hoby V. Hitchcock, 5 Ves. 699; Willis v. Garbutt, 1 Younge & J. 511 Colebrook v. Jones, 1 Dickens, 154; Stanley v. Hume, 1 Hogan, 12 Liilie v. Lillie, 2 Mylne & K. 404; Camac v. Grant, 1 Sim. 348; Walker V. Easterby, 6 Ves. 612; Weeks v. Cole, 14 Ves. 518; Mason v. Gardiner, 4 Brown, Ch. 436; Dyott v. Dyott, 1 Madd. 187; Thornton v. Wilson, 1 Hogan, 20; Annesley v. Simeon, 4 Madd. 390; Bishop of Rochester v. Knapp, 1 Dickens, 70; Cliff e v. Wilkinson, 4 Sim. 123. "1 Hoffman, Ch. Pr. 212; 1 Harrison, Ch. Pr. 488; 1 Fowler, Bxch. Pr. 483; Beames, Order Ch. 44, 216; Denn v. Russel, 1 Dickens, 427. 15 1 Hoffman, Ch. Pr. 212; Brown v. Story, 1 Paige (N. Y.) 588. The statutes and rules of court of the respective jurisdictions should be con- sulted on this question. (228) CHAPTER X. THE DIFFERENT SORTS OF DEFENSE. § 190. In general. The defense to a suit in equity is usually presented by de- murrer, by plea, by answer, or by disclaimer. By demurrer the defendant demands the judgment of the court whether ho shall be compelled to answer the bill or not. y This species of de- fense is resorted to when it appears upon the bill itself that there is no equity in the case upon the part of the complainant. 'By t a plea, the defendant may show some cause why the suit should be dismissed, delayed, or barred./' A plea sets up matter of de- fense n^t apj^earing in the billy/By answer controverting the case stated by the complainant, the defendant may confess and avoid, or traverse and deny the several parts of the bill, or, ad- mitting the case made by the bill, may submit to the judgment of the court upon it, or upon a new case made by the answer, or both. By a disclaimer disclaiming all right or interest in the matter sought by the bill, the defendant may terminate the i suit.^ /' A cross bill may also be considered as a species of defense. 1 1 Barbour, Ch. Pr. 105; Mitford, Eq. PL 106, 107; Galatian v. Erwin, Hopk. Ch. (N. Y.) 58; Livingston v. Story, 9 Pet. (U. S.) 632. See, also, Story, Eq. PI. § 436; Cooper, Eq. PI. 108, 110, 223, 309, 312; Ocean Ins. Co. v. Fields, 2 Story, 59, Fed. Cas. No. 10,406. Mr. Jus- tice Story divides matters of defense into two classes: (1) Dilatory defenses; (2) peremptory and permanent defenses. Dilatory defenses are divided into the following sorts: (a) That the court in which the suit is brought has no jurisdiction; (b) that the bill is brought by or against an improper person, not competent to maintain or de- fend it; (c) that the suit is irregularly brought, or defective in its al- legations or parties; (d) that another suit is pending for the same controversy. Peremptory defenses are of two kinds: (a) Those in- sisting complainant never had any right to institute the suit, under (229) § 192 EQUITY PLEADING AND PRACTICE. [Ch. 10 § 191. Defenses to different kinds of bills. ■ ' Every species of bill requires its own peculiar ground to sup- port it, and its own peciiliar form to give it effect. A defi- i ciency, therefore, in either of these points, is a good ground of I defense to it.V The same objections do not always lie to a bill of discovery as lie to a bill of discovery and relief. And mat- ters of defense may be made against bills not originaj which are inapplicable to original bills or to bills in the nature of original bills.^ § 192. Joinder of several defenses. All or any of the customary modes of defense may be joined, provided each relates to a separate and distinct part of the bill. Thus, a defendant may demur to one part of the bill, plead to another, and disclaim as to another. He may also put in sep- arate demurrers to separate and distinct parts of a bill for sep- . arate and distinct causes, and he may also plead different mat- ters to separate parts of the same bill.* All these defenses must, clearly refer to separate and distinct parts of a bill/for a de- fendant cannot plead to that part to which he has already de- murred. Neither can ho answer to any part to which he has either demurred or pleaded, — a demurrer demanding the judg- ment of the court whether he shall make any answer; and the plea, whether he shall make any other answer than what is eon- which may be included the following defenses: First, that complain- ant has not a superior equity to defendant; second, that defendant has no interest; third, lack of privity between complainant and de- fendant, or of any other right to institute the suit, (b) Those insist- ing that the original right, if any, is extinguished or determined, un- der which may be included the following defenses: First, that the right is determined by the act of the parties; or, second, that it is de- termined by operation of law. Story. Eq. PI. §§ 434, 435; 1 Montagu, Eq. PI. 88, 89 2 Story, Eq. PI. § 438; Mitford, Eq. PI. 106, 107. s Story, Eq. f\. §§ 439, 440; Mitford, Eq. PI. 106, 107, 109. 4 Story, Eq. PI. §§ 437, 442; Mitford, Eq. PI. 13, 106; 1 Barbour, Ch. Pr. 173; Holt V. Daniels, 61 Vt. 89, 17 Atl. 786; Wade v. Pulsifer, 54 Vt. 45; Bennett v. Bennett (N. J. Eq.) 49 Atl. 501; Strang v. Richmond, P. & C. R. Co., 101 Fed. 511; Livingston v. Story, 9 Pet. (II. S.) 632. (230) Ch. 10] DIFFERENT SORTS OF DEFENSE. § 193 tained in the plea. JSTor can the defendant, by answer, claim what,, by disclaimer, he has declared he had no right to. A plea or answer will therefore overrule a demurrer, and an an- swer a plea, and, if the disclaimer and answer are inconsistent, the matter will« be taken most strongly against the defendant upon tbe disclaimer.^ Where a defendant adopts different modes of defense, it is necessary, not only that each defense should, in words, be applicable to the distinct part of the bill to which it professes to apply, but that it should be so in sub- stance; and if the defense, though in words applicable to part of the bill only, should, on the face of it, b& applicable to the whole bill, it will not be good, and cannot stand in conjunction with another distinct defense which is applicable, and applied to another distinct part of the bilL'^ § 193. Incorporating demurrer or ple& in answer. A demurrer is often incorporated into an answer, and no vio- lation of tiie riile that a party cannot demur to and answer the same matter is occasioned if the demurrer is. left for con- sideration as if it stood alone. /In the old precedents, instances I may be found of demurrers and pleas incorporated/into an- swers; but in each case the answer 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., "answer- eth and saith," — -going through the answer as if no plea had been put in. /The more modern practice, however, and the one \ sanctioned by Lord Redesdale and other standard writers, is | to file each pleading by itself. But in all cases ths' demurrer should be brought to a hearing before the cause is tried on its ! merits.'/ Where a denrarrer in connection with a plea or an 5 1 Barbour, Ch. Pr. 173; North v. Strafford, 3 P. Wms. 148. 6 1 Barbour, Ch. Pr. 174; Crouch v. Hickin, 1 Keen, 385. 7 Holt V. Daniels, 61 Vt. 89, 17 Atl. 786; Wade v. Pulsifer, 54 Vt. 45. See Bird v. Magowan (N. J. Eq.) 43 Atl. 278. In Bennett v. Bennett (N. J. Eq.) 49 Atl. 501, it is held that an answer to a bill in equity (231) § 193 EQUITY PLEADING AND PRACTICE. [Ch. 10 answer, or either of them, has been put in, the first step to be taken is to dispose of the demurrer, and also of the plea, if there is one (unless it is intended to admit that it is a valid defense, if true), and for this purpose the demurrer and plea must be noticed for argument in the usual way. If there should be any impertinence in the plea, however, it should be expunged be- fore setting down such plea, as the setting down a plea for ar- gument is a waiver of the impertinence.^ admitting its substantial allegations, but denying complainant's right to equitable relief, and claiming the benefit of such objection as though raised by demurrer, is, in effect, a demurrer to the bill. The state- ment in the answer that defendant reserves all just exceptions to the many deficiencies by demurrer to a bill exhibited, etc., is not sufficient to attack the bill as on demurrer. Matney v. Ratliff, 96 Va. 231, 31 S. B. 512. See O'Neill v. Cole, 4 Md. 107. The reservation by the de- fendant- in his answer of an exception to the sufficiency of the bill for want of equity has the effect of a demurrer. Lovette v. Longmire, 14 Ark. 339; Teague v. Dendy, 2 McCord, Bq. (S. C.) 207, 16 Am. Dec. 643. See on this point Schack v. McKey, 97 111. App. 460; fceux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274; Black v. Miller, 173 111. 489, 50 N. E. 1009. 8 1 Barbour, Ch. Pr. 174; Dixon v. Olmius, 1 Cox, 412. If the defend- ant in his answer demurs, he can have the benefit of such demurrer at the hearing, but not before. Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 146. (232) CHAPTEK XI. ^' DEMURRERS. § 194. In general. Whenever any gronnd of defense is apparent upon the InU ) itself, either from the matter contained in it, or from a defcel, | in its frame or in the case made by it, the proper mode of taking advantage of it is by demurrer.^ The word "demnrrer"' comes from the Latin word "demorari," — to abide, — and therefore he \ that demurs in law is said to abide in law. / The defendant will go no further until the court has decided whether the other party has shown sufficient matter in point of law to maintain the suit.^ The office of a demurrer is to determine whether the facts as stated constitute grounds for equitable relief.* It miist be founded on some dry point of law which goes to the absolute denial of the relief sought,* and it demands the judgment of the court whether the defendant shall be compelled to answer the complainant's bill, or some certain part thereof.^ -^An objection j to the equity of the complainant's bill must be taken by demur- j rer, and not by plea.'i- Where it is perfectly apparent from the 1 Story, Eq. PI. §§ 446, 453, 454; Barton, Suit in Bq. 113; 1 Barbour, Ch. Pr. 105; Mitford, Eq. PI. 107; Evertson v. Ogden, 8 Paige (N. Y.) 275; CMpman v. Thompson, Walk. (Mich.) 405; Billing v. Plight, 1 Madd. 230; Hovenden v. Annesley, 2 Schoales & L. 638; Goodrich v. Thompson, 88 111. 206. 2 Cooper, Eq. PI. 110; Story, Eq. PI. § 441; 1 Barbour, Ch. Pr. 106; Mitford, Eq. PI. 107, 108; State of New Jersey v. People of New York, 6 Pet. (U. S.) 323. 3 Johnson v. Roberts, 102 111. 655; Gallagher v. Roberts, 1 Wash. C. C. 320, Fed. Cas. No. 5,194. *Verplank v. Caines, 1 Johns. Ch. (N. Y.) 57. 5 1 Barbour, Ch. Pr. 106; Stroup v. Chalcraft, 52 111. App. 608. « Cooper, Eq. PI. Ill; Story, Eq. PI. § 453; Farley v. Kittson, 120 U, S. (233) 4 § 195 EQUITY PLEADING AND PRACTICE. [Ch. 11 complainant's bill that he is entitled neither to relief nor dis- covery, as against one of the defendants, such de fendan t should demur to the bill in the first instance, and/lf he puts in an an- swer unnecessarily, where it is clear that a demurrer- to the whole bill may be sustained upon the merits, costs may be taxed against him.V Where the facts relied on as a matter of defense are stated in the bill by way of pretense, and not expressly charged, it is not generally safe to demur, unless the whole right against the defendant is founded on that charge.* yThe ques- tion of the propriety of issuing a writ of ne exeat cannot be raised by demurrer.?^ § 195. Dismissal of bill on motion. '^^ Under the chancery practice in Illinois and in some other jurisdictions, a motion to dismiss a bill may be properly made by the defendant whenever he denies the right of the complain- ant to file it, as where a bill of review has been filed without first obtaining, leave of courty or the motion may bo based upon the failure of the complainant to comply with some order of the court made after the bill has been filed, as_the failure to give bond for costs. The motion may also be made upon the ground that there is no equity apparent upon the face of the bill, or that_±he court has no j^lrisdiction, though such is not the gen- erally approved chancery practice; and in such ease the mo- tion is treated as a general demurrer, admitting all the facts 303; Judson v. Stephens, 75 111. 255; Billing v. Plight, 1 Madd. 230; Varick v. Dodge, 9 Paige (N. Y.) 149. T.Murray v. Graham, 6 Paige (N. Y.) 622; Bradley v. Bosley, 1 Barb. Ch. (N. Y.) 131; Harland v. Bankers' & Merchants' Telegraph Co., 32 Fed. 305. • s Story, Eq. PI. § 450 ; Fletcher v. Toilet, 5 Ves. 3 ; Hicks v. Rain- cock, 1 Cox, 40; Braband v: Hoskins, 3 Price, 31. Shainwald v. Lewis, 69 Fed. 487. A demurrer lies where it appears on the face of the bill that the suit is prematurely brought; but when there is no demurrer, and at the hearing the objection appears, the court is not bound to dismiss the suit, but, if complainant is then entitled to the relief he seeks, may decree for him. Sarter v. Gordon, 2 Hill, Eq. (S. C.) 121; Haskell v. Waties, 2 Rich. Eq. (S. C.) 8. (234) Ch. 11] DEMURRERS. § 196 well pleaded by the bill. A bill will never be dismissed upon such a motion unless it is clear that no amendment can help it.-^° § 196. Who may demur. ./ Only those defendants who are improperly joined, or are in- jured by the misjoinder as defendants, can demiir for such mis- joinder.'^ A demiirrer will lie on the part of any of the de- fendants to a nonjoinder or misjoinder of complainants.^ The rule that, for a misjoinder of defendants, those only can demur who are improperly joined, applies with equal force to a mis- joinder of matters.'''/ If a claim against several defendants is joined with a claim in which one only of the defendants is in- terested, and which is wholly disconnected with the claim against all of the defendants, all or either of them may demur for multifarioitsness.-'*'^ In a suit against several defendants whose liability is joint, and whose interests in the suit are iden- tical, the court will not entertain a demurrer from one of the de- fendants only.^^ After the death of a defendant in a bill, his executor can demur only if the testator might have done so in the same stage of the cause.'® /One defendant may ap-j 10 Grimes v. Grimes, 143 111. 550, 32 N. E. 847. See, Glover v. Hem- bree, 82 Ala. 324, 8 So. 251; Terry v. Resell, 32 Ark. 478; Thrasher v. Partee, 37 Ga. 392; Whitney v. Gotten, 53 Miss. 689; Conover v. Ruck- man, 32 N. J. Eq. 685; Bradt v. Kirkpatrick, 7 Paige (N. Y.) 62; Ran- dall V. Payne, 1 Tenn. Ch. 137; Henderson v. Mathews, 1 Lea (Tenn.) 34; Bicycle Stepladder Co. v. Gordon, 57 Fed. 529; Coleman v. Butt (Ala.) 30 So. 364; South & North Alabama R. Co. v. Highland Ave. & B. R. Co., 98 Ala. 400, 13 So. 682, 39 Am. St. Rep. 74. See post, § 574. 11 Buerk v. Imhaeuser, 8 Fed. 457; Toulmin v. Hamilton, 7 Ala. 362; Blgelow V. Sanford, 98 Mich. 657, 57 N. W. 1037; Payne v. Berry, 3 Tenn. Ch. 154; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Atwill V. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Crosby v. Berger, 4 Edw. Ch. (N. Y.) 210; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618; Torrent V. Hamilton, 95 Mich. 159, 54 N. W. 634. See supra, § 59. 12 Peoria, D. &. E. Ry. Co. v. Pixley, 15 111. App. 283. See supra, § 56. 13 Torrent v. Hamilton, 95 Mich. 159, 54 N. W. 634; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640. 14 Swift V. Eckford, 6 Paige (N. Y.) 22; Ward v. Northumberland, 2 Anstr. 469; Gibbs v. Clagett, 2 Gill & J. (Md.) 14. 15 Von Glahn v. De Rossett, 76 N. C. 292. 16 Pope v. Fowles, 3 Hen. & M. (Va.) 47. (235) § 197 EQUITY PLEADING AND PRACTICE. [Ch. 11 pear gratis, and demur, before the other defendants have been served. ^J,' § 197. Demurrer coupled with plea or answer. / A plea or answer to any part of a bill demurred to will over- ' I'uie the demurrer.^^ It is said that a demurrer for multifari- ousness is not overruled by an answer denying confederacy;-^" nor is a demurrer to relief only overruled by an answer as to the discovery. -° It is held that the demurrer of one defendant is not overruled by the plea of a co-defendant.^^ If the de- murrer does not go to the whole bill, it must express to what , particular parts it is meant to extend./ It ought to express in clear and jirecise terms to what part the defendant refuses to answer. It is not a i^roper way of demurring to say that the defendant answers to such a particular part, and demurs to all the rest of the bill.^- !■ Jones V. Fulghum, 3 Tenn. Ch. 193. See Fell v. Christ's College, 2 Brown Ch. 279. 18 Story, Eq. PI. §§ 442, 465; 1 Barbour, Ch. Pr. 108; Mltford, Eq. PI. 109, 110; Tidd v. Clare, 2 Dickens, 712; Hester v. Weston, 1 Vern. 463; Savage v. Smalebroke, 1 Vern. 90; Adams v. Howard, 9 Fed. 347; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 277; Baines v. McGee, 1 Smedes & M. (Miss.) 208; Clark v. Phelps, 6 Johns. Ch. (N. Y.) 214; Barbey's Appeal, 119 Pa. 413, 13 Atl. 451; Robertson v. Bingley, 1 Mo- Cord Eq. (S. C.) 333; United States v. Parrott, 1 McAll. 271, Fed. Cas. No. 15,998; McDermott v. Blois, R. M. Charlt. (Ga.) 281; Fall v. Hafter, 40 Miss. 606; Spofflord v. Manning, 6 Paige (N. Y.) 383; Kuy- pers V. Reformed Dutch Church, 6 Paige (N. Y. ) 570; Jones v. Straf- ford, 3 P. Wms. 81; Ellice v. Goodson, 3 Mylne & C. 653; Dawson v. Sadler, 1 Sim. & S. 537; Crouch v. Hickin, 1 Keen, 389; Harding v. American Glucose Co., 182 111. 551, 55 N. E. 577; Souzer v. De Meyer, 2 Paige (N. Y.) 574. 18 1 Barbour, Ch. Pr. 108; Hester v. Weston, 1 Vern. 463. 20 1 Barbour, Ch. Pr. 108. 21 Dakin v. Union Pac. Ry. Co., 5 Fed. 665. 22 Mitford, Eq. PI. 213, 214; Story, Eq. PI. §§ 442, 457; 1 Barbour, Ch. Pr. 106; Devonsher v. Newenham, 2 Schoales & L. 199; Bruen v. Bruen, 4 Edw. Ch. (N. Y.) 640; Wetherhead v. Blackburn, 2 Ves. & B. 121; Rob- inson V. Thompson, 2 Ves. & B. 118; Salkeld v. Science, 2 Ves. Sr. 107; Gray v. Regan, 23 Miss. 304; Waring v. Suydam, 4 Edw. Ch. (N. Y.) 426. United States Equity Rule 37 provides that no demurrer or plea (236) Ch. 11] DEMUICRERS. g mg § 198. Abandonment or waiver of demurrer. A demurrer to a bill, on which no action is taken, is waived by a subsequent answer,^* or by proceeding to a trial on the mer- its.-* Where the complainant fails to stand by his original bill after demurrer sustained thereto, and files an amended bill free from the objections raised on demurrer, he cannot urge the in- sufficiency of the demurrer on appeal. ^^^ Whether one of two defendants to a bill has waived his right to demur thereto will be immaterial when both defendants filed a joint and several demurrer, as the demurrer of one of the defendants will be sufii- cient to raise the question of the sufficiency of the bill.^,?^ When the defendant moves, and is granted leave, to withdraw his de- murrer and file an answer, he waives' such demurrer, and there- after it is not to be considered as pending. ^^ § 199. Admissions by demurrer. A demurrer to a bill admits the truth of all matters therein j stated which are well pleaded.-^ It does not admit averments i shall be held bad and overruled, on argument, only because the answer may extend to some part of the same matter as may be covered by such demurrer or plea. See Hayes v. Dayton, 8 Fed. 702; Crescent City Live-Stock, Landing & Slaughter House Co. v. Butchers' Union Live- stock, Landing & Slaughter House Co., 12 Fed. 225; Mercantile Trust Co. V. Missouri, K. & T. Ry. Co., 84 Fed. 379. 23 Bauerle v. Long, 165 111. 340, 46 N. B. 227; Ray's Adm'r v. Womble, 56 Ala. 32; McLane v. Johnson, 59 Vt. 237, 9 Atl. 837; Wade v. Pulsiter, 54 Vt. 45; Strang v. Richmond, P. & C. R. Co.. 101 Fed. 511. ■2* Daughdrill v. Helms, 53 Ala. 62 ; Kiernan v. Blackwell, 27 Ark. 235; Waterman v. Buck, 63 Vt. 544, 22 Atl. 15; Chattanooga Grocery Co. V. Livingston (Tenn. Ch. App.) 59 S. W. 470; Harding v. Egin, 2 Tenn. Ch. 39. 25 Lookout Bank v. Susong, 90 Tenn. 590, 18 S. W. 389, 20 Illinois Land & Loan Co. v. Speyer, 138 111. 137, 27 N. E. 931. The filing of a cross bill after a demurrer to the bill does not prevent the court from considering the demurrer. Bennett v. Bennett (N. J. Err. & App.) 49 Atl. 501. 2T Wilson V. Derrwaldt, 100 111. App. 396. 2s Mitford, Eq. PI. 211, 213; Story, Eg. PI. § 452; Baker v. Booker, 6 Price, 381; Myers v. Wright, 83 111. 284; Roby v. Cossitt, 78 111. 638; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Dillon v. Barnard, 21 Wall. (U. S.) 430; Baker v. Atkins, 62 Me. 205. (23Y) § 199 EQUITY PLEADING AND PRACTICE. [Ch. 11 amounting to statements of law, nor mere legal conclusions,^* nor statements of arguments.^" Where tlie avernojent is that the » complainant is informed and believes that certain things are 1 true, the demurrer admits that complainant is so informed and I does so believe, but not that the information is true.^1' Where there is an inconsistency between an averment in a bill and a written instrument attached thereto as an exhibit, a demurrer does not admit the truth of the conflicting averment in the bill.^^ A demurrer to a bill in which perjury is distinctly and spe- cifically alleged is, for the purposes required by the demurrer, equivalent to a party's own confession of the crime, or to com- petent evidence of his legal conviction thereof.^ ^ Any material fact which is stated with legal certainty anywhere in the stating part of the bill is well pleaded, and therefore admitted by a de- murrer.®* '' Where there are several defendants, a demurrer of the principal defendant admits the facts alleged only as between the complainant and himself^^^^ A demurrer is always preced- ed by a protestation against the truth of the matters contained 29 Cooper, Eq. PI. Ill ; Story, Bq. PI. § 452 ; Cornell v. Green, 43 Fed. 105; Preston v. Smith, 26 Fed. 884; Stow v. Russell, 36 111. 18; Churchill Township v. Cummings Township, 51 Mich. 446, 16 N. W. 805 ; Partee v. Kortrecht, 54 Miss. 66; Dauphin v. Key, MaoArthur & M. (D. C.) 203; Pearson v. Tower, 55 N. H. 36; Tompson v. National Bank of Redemp- tion, 106 Mass. 128; Lockhart v. Leeds (N. M.) 63 Pac. 48. 30 Johnson v. Roberts, 102 111. 655. 31 Walton v. Westwood, 73 111. 125; Trimble v. American Sugar-Re- fining Co. (N. J. Ea.) 48 Atl. 912; Vickers v. Cowell, 7 Jur. 51; Egre- mont V. Cowell, 5 Beav. 620 ; TJxbridge v. Staveland, 1 Ves. Sr. 56. See supra, § 100. 32 National Park Bank of New York v. Halle, 30 111. App. 17. See Lea V. Robeson, 12 Gray (Mass.) 280; Le Baron v. Shepherd, 21 Mieh. 262; Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569. See, also, Ulman v. laeger, 67 Fed. 980. A demurrer gives no legal effect to an allegation in opposition to the record (Green v. Dodge, 6 Ohio, 80, 25 Am. Dec. 736), nor to a matter, such as legislative acts and records, of which the court is bound to take judicial notice (Grif- fin v. Augusta & K. R. Co., 72 Ga. 423). See supra, § 99. 33 Craft T. Thompson, 51 N. H. 536. 3i Paterson & Hudson River R. Co. v. Jersey City, 9 N. J. Eq. 434. 35 Edwards v. Edwards, 2 Strob. Eq. 43) § 208 EQUITY PLEADING AND PRACTICE. [Ch. 11 are either: (a) Tliat the complainant is not entitled to sue by reason of some personal disability, or (b) that the complain- ant has no title to the character in which he sues.®^/^ Demur- rers to the substance of the bill are divided into the following heads : ( a ) That the suit is unworthy of the dignity of the court; (b) that the complainant has no interest in the subject- matteiVbr no proper title to institute a suit concerning it; I (c) that the complainant has no right to call upon the defend- ant to answer his demand ; (d) the want of interest of the de- fendant in the siibject-matter of the suit; (eA^that the ob- ject of the bill is to enforce a penalty or forfeiture ;®® (f ) the statute of frauds ;/ (g) that complainant's claim is barred by lapse of time; (\i) another suit pending ;£or thfi^same matter. ^^ Objections to the form and frame of a bill are: (a) Defects of form; (b) multifariousness; (c) want of proper parties; and (d) misjoinder. § 208. Demurrers to jurisdiction. (1) A demurrer to the jurisdiction will lie on the ground that the subject is not properly cognizable by any municipal court of justice. This may arise from the subject-matter being entirely of a political nature, and therefore constituting a fit subject for negotiation or treaty by the executive department of the government."* '^tWherefore, and for divers other good causes of demurrer appear- ing in the said bill, this defendant does demur thereto, and humbly demands the judgment of this court whether he shall be compelled to " make any further or other answer to the said bill, and prays to be hence dismissed, with his costs and charges in this behalf most wrong- fully sustained. C. D., E. F., Defendant. /' Solicitor for Defendant.i=^ For multifariousness. [After proceeding to the * in the above form, state cause of demurrer, as follows:] That it appears by the said bill that the same is ex- hibited by the complainant against this defendant and A. B., C. D., and E. F., as defendants thereto, for several distinct matters and causes, in many whereof, as appears by said bill, this defendant is not in any manner interested or concerned, and that said bill is al- together multifarious; and, by reason of such distinct matters, the said bill is drawn out to a considerable length, and, by joining distinct matters together which do not depend on each other, the proceedings in the progress of the said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses in matters which in no way relate to o: concern him. [Insert matter after t-] Por want of parties. [Insert after * and before t the following:] That it appears by said complainant's bill that A. B., therein named, is a necessary party to said bill, inasmuch as it is therein stated that C. D., the testator in the said bill named, in his lifetime by certain conveyances made to the said A. B., in consideration of dollars, conveyed to him, by way of mortgage, certain estates in said bill particularly mentioned and de- scribed, for the purpose of paying the said testator's debts and legacies, but he, the said complainaiit, has not made the said A. B. a party to said bill. Want of privity. [Insert after * and before t the following:] That it appears by the complainant's said bill that there is no privity between the said com- i2i If there is more than one cause of demurrer, insert before the conclusion a specification of such cause, which begins with the follow- ing: "And for further cause of demurrer, this defendant shows that, etc. [Here insert the further cause of demurrer, and conclude.]" Ch. 11] DEMURRERS. § 220 plainant and this defendant, to enable the said complainant to call on this defendant for payment of any debt due to the estate of the said testator from this defendant. Splitting causes. [Insert after * and before t the following;] That the said com- plainant, by his said bill, in order to split the cause and create a mul- tiplicity of suits, seeks only to recover a part of an entire debt thereby stated to be due to him from this defendant, and in respect of the other parts of the said debt, as appears by his said bill, filed two sev- eral other bills of complaint in this honorable court against this de- fendant. Want of interest in complainant, or title in subject-matter. [Insert after * and before t the following:] That the said com- plainant has not, as appears by his said bill, made out any title to the relief thereby prayed. Want of interest in the defendant. [Insert after * and before t the following:] That the said com- plainant has not, by his said bill, which seeks to set aside the award therein set forth, and to which this defendant is made a party in his character of arbitrator, shown that he can have any decree against this defendant, whose answer could not be read as evidence against the other defendants to the said bill, or any of them, and the said com- plainant, for anything that appears in said bill to the contrary, might examine this defendant as a witness in this suit. ■ Where an infant sues without a next friend. [Insert after * and before t the following:] That the said com- plainant, who appears by his said bill to be an infant under the age of twenty-one years, has exhibited his said bill without any person be- ing therein named as his next friend. Statute of frauds. [Insert after * and before t the following:] That it appears by the said bill that neither the promise or contract which is alleged by the said bill, and of which the complainant, by the said bill, seeks to have the benefit, nor any memorandum or note thereof, was ever reduced into writing, or signed by this defendant or any person authorized thereto, within the meaning of chapter of the Revised Statutes of the state of , for the prevention of frauds and perjuries. Demurrer to part of bill. [Title of court and cause.] The demurrer of A. B., the defendant, to the bill of complaint of C. D., the complainant: « (25Y) Equity — 17 § 221 EQUITY PLEADING AND PRACTICE. [Ch. 11 This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in said hill of complaint contained to be true, in such manner and form as the same are therein and there- by set forth and alleged, as to so much and such part of the said bill as seeks that this defendant may answer and set forth whether [indi- cating that part of the bill demurred to], and prays [if relief be prayed], doth demur, and for cause of demurrer shows [point out par- ticularly the special defects relied on by demurrer]. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, as to so much thereof as is demurred unto as aforesaid, this defendant demurs, and prays the judgment of this honorable court whether he should be compelled to make any further answer to such parts of said bill as are so demurred to as aforesaid. . Demurrer coupled with answer. [Title of court and cause.] The demurrer of A. B. to part, and his answer to the other part, of the bill of complaint of C. D., the complainant: This defendant [proceed as in the last form to the end, and continue as follows:] And this defendant, not waiving his said demurrer, but relying thereon, and saving and reserving unto himself all benefit and advantage of exception to the many errors, uncertainties, and imper- fections in the residue of the said bill contained, for answer says: [Set out the answer in the usual form.] § 221. Filing demurrer. A demurrer may be filed within the time allowed the de- fendant to put in his answer, and it seems that it mav be filed at any time afterwards, until the defendant is affected by pro- cess of contempt, by the retiirn of an attachment "with proclama- tions, or the entry of an order to take his bill as confessed.-' ^^ The time to demur is usually regulated by stattite or rule of j court. ^^$/ The general rule is that the defendant, after having obtained time to answer, cannot demur. But in certain special cases, such as surprise, the court M-ill allow the defendant to 12.-, i Hoffman, Ch. Pr. 213; 1 Barbour, Ch. Pr. 109; East India Co. v. Henchman, 3 Brown Ch. 372; Sowerby v. Warder, 2 Cox, 268; Sanders V. Murney, 1 Sim. & S. 225; Lane v. Ellzey, 4 Hen. & M. (Va.) 504; Oliver v. Decatur, 4 Cranch, C. C. 458, Fed. Cas. No. 10,494. 12" See Rule 1 of Chancery Rules of Circuit and Superior Courts of Cook County, Illinois. For federal practice, see United States Equity Rules 18, 32. # (258) Ch. 11] DEMURRERS. § 222 put in a demurrer even after he has obtained an order for time.-*^^ It is usually made a special condition of the order giving the defendant time to demur, plead, or answer to the com- plainant's bill, that he shall not demur alone. When, therefore, the defendant has obtained an order for time, and is afterwards advised to demur, he miist also plead to or answer some part of the bill.^^* If the defendant omits to put in his demurrer, or to answer within the time allowed by the order, and an attach- ment is, in consequence, issued against him for want of an an- swer, the demurrer, even though coupled with an answer, will be irregailar, and in such a case the proper course is to move that the demurrer and answer be taken off the file, and not that the demurrer be overruled.^^^/lt is in the discretion of the court \ to allow the withdrawal of an answer, and the filing of a de- f murrer in lieu thereof, at any stage of the cause before final decree.^ ^^ § 222. Admitting demurrer. / If the complainant takes exceptions to the answer, pending a j 127 1 Barbour, Ch. Pr. 110; Bruce v. Allen, 1 Madd. 556; Harvey v. Matbew, 1 Dickens, 30; Dyson v. Benson, Coop. 110; Burrall v. Raine- teaux, 2 Paige (N. Y.) 331; Kenrick v. Clayton, 2 Brown Ch. 214; Tay- lor T. Milner, 10 Ves. 444; Lakens v. Fielden, 11 Paige (N. Y.) 644. 12S1 Barbour, Ch. Pr. 110; Mitford, Bq. PI. 208. It has been held that answering to some fact immaterial to the cause, and denying com- bination, do not amount to a compliance with the terms of such an order. 1 Barbour, Ch. Pr. 110; Stephenton v. Gardiner, 2 P. Wms. 286. In another case, which was a bill for discovery, the answer gave no information, but simply stated the default of the person, and denied combination; and Lord Eldon said that he was afraid that, according to the practice of the court, if the defendant had been under the order not to demur alone, the addition of that short answer would have saved the terms of the order. Tompkin v. Lethbridge, 9 Ves. 178; 1 Barbour, Ch. Pr. 110; 1 Hoffman, Ch. Pr. 214. Though an answer to a single fact will be a sufficient compliance with the condition, such fact must not be one that is covered by the demurrer; otherwise, the demurrer will be overruled by the answer. 1 Barbour, Ch. Pr. 110. 129 1 Barbour, Ch. Pr. 110; Curzon v. De la Zouch, 1 Swanst. 193. 130 Saunders v. Savage (Tenn. Ch. App.) 63 S. W. 218; Chestnutt v. Frazier, 6 Baxt. (Tenn.) 219; Lowe v. Morris, 4 Sneed (Tenn.) 69. (259) § 225 EQUITY PLEADING AND PRACTICE. [Ch. 11 demurrer to the discovery, he admits the demurrer, but the court may permit him to withdraw the exceptions.-^^^/ § 223. Withdrawing demurrer. Where the demurrer is defective in form, the court will grant the defendant permission to withdraw it, and file a new one, on payment of costs.'^^^ After the demurrer has been noticed for argument, the defendant may, by motion, obtain an order to withdraw it.-^^^ § 224. Form of order on withdrawal of demurrer. [Title of court and cause.] This cause coming on now to be heard, upon the demurrer of the said defendant, C. D., filed herein, to the bill of complaint, said defend- ant withdraws said demurrer, and leave is hereby given to said de- fendant to, and it is ordered that the said defendant, file his answer to the bill of complaint herein, within ten days from this date. § 225. Demurrer to amended bill. The general riile is that an amendment of a bill does not enable the defendant, who has answered the original bill, to demur to the amended bill upon any cause of demurrer to which the original bill was open.^^* But if the complainant so amend his bill as to make an entirely new case, leaving the original bill (as Lord Eldon expresses it) in nubihus, the answer must be treated as "in the clouds" also, and a demurrer would be in order. ^^^ The right to demiir a second time to the whole 1311 Barbour, Ch. Pr. 112; Mitford, Eq. PI. 317; 1 Hoffman, Ch. Pr. 217; Boyd v. Mills, 13 Ves. 85. It is said that if the demurrer is to the relief only, and not to any part of the discovery, the complainant may take exceptions to the answer before the demurrer is argued. 1 Bar- bour, Ch. Pr. 113; London Assurance v. East India Co., 3 P. Wms. 326. 132 1 Barbour, Ch. Pr. Ill; Norton v. Coley, 45 Miss. 125; Devonsher V. Newenham, 2 Schoales & L. 199. See, as to withdrawing demurrer, Bailey v. Holden, 50 Vt. 15. 133 1 Barbour, Ch. Pr. Ill; Downes v. East India Co., 6 Ves. 586. 134 State V. Mitchell, 104 Tenn. 336, 58 S. W. 365; Atkinson v. Han- way, 1 Cox, 360; Bllice v. Goodson, 3 Mylne & C. 653. 135 Ritchie V. Aylwin, 15 Ves. 79; Cresy v. Bevan, 13 Sim. 354; State V. Mitchell, 104 Tenn. 336, 58 S. W. 365. (260) Ch. 11] DEMURRERS. g 227 bill, upon an amendment made, applies only to cases where tlie amendment is made and the demurrer filed before the answer is ptit in.^^® /The defendant has a right to interpose a new demurrer to an amended bill, notwithstanding the previous de- murrer to the original bill has been overruled.^ ^^ § 226. Setting down demurrer for argument. /~ Either party has a right to notice the demurrer for argu- ment,^ ^* and, although it is usually noticed by the complainant, the defendant may give the notice, if he pleases, and in some cases it becomes necessary for him to do so in case of the com- plainant's neglect. ■'■/^ The time when, and manner and order in which, demurrers shall be heard, are regulated by local iisage or rules of court. ■'^*'' § 227. Form of notice of argument of demurrer.,, [Title of court and cause.] To A. B., Esq., Solicitor for , Complainant [or Defendant, as the ' case may be] : You are hereby notified that on Monday, the 9th day of April, A. D. 1900, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor Judge M. F. T., in the room usually oc- cupied by him as a court room in said county, move for the argument and disposition of the demurrer to the bill of complaint filed by/the de- 136 Bond V. Pennsylvania Co., 171 111. 508, 49 N. E. 545; Booth v. Stamper, 10 Ga. 114; 1 Daniell, Ch. PI. & Pr. (6th Am. Ed.) 409. A de- fendant whose demurrer has been overruled, and to whom time has been given to answer, may demur again, without leave being specially granted, on complainants' amending their bill by joining a new party complainant. Moore v. Armstrong, 9 Port. (Ala.) 697. 137 Bowes v. Hoeg, 15 Fla. 403; Booth v. Stamper, 10 Ga. 109. See, also, Scott V. Calvit, 3 How. (Miss.) 48, questioning the reasonableness of the rule in all instances, and reviewing authorities. If the bill is amended after an order extending the time to answer the original bill, the defendant may put in a demurrer to the amended bill. Cowman v. Lovett, 10 Paige (N. Y.) 559. 1-18 1 Smith, Ch. Pr. 209. 139 1 Barbour, Ch. Pr. Ill; Done v. Allen, 1 Dickens, 55; Anonymous, 2 Ves. Jr. 287. 140 For practice in Cook county, Illinois, see Rule 4 of Chancery Rules of Superior and Circuit Courts of Cook County. For practice in Mich- igan, see Zabel v. Harshman, 68 Mich. 270, 36 N. W. 71. (261) § 228 EQUITY PLEADING AND PRACTICE. [Ch. 11 fendant in the above-entitled cause, at which time and place you may appear, if you see fit. Yours, etc., G., H. & I., Solicitors for Defendant [or Complainant]. Dated Chicago, April 3, 1900. § 228. Hearing on demurrer. J In hearing a demurrer, the argument is strictly confined to the case appearing upon the record, and, for the purposes of the argument, the matters of fact stated in the bill are admitted to be true.^*^ The demurrer cannot be defeated by suggesting proposed amendments to the bill at the time of the hearing of the demurrer.^*/ The usual course of proceeding, when a de- murrer comes on for hearing, and all parties appear, is for the solicitor in support of the demurrer to be first heard, next the complainant's solicitor, and then the solicitor for the demur- ring party replies in conclusion.^''/ A bill may be finally heard on the demurrer of one defendant, though the other has not ap- peared, if sufiicient matter be disclosed to enable the court to determine the rights of all the parties.-'** A demurrer by a part of several defendants may be heard and determined be- fore service is had on the others.'*^/ It is said to be the prac- tice that, if the defendant does not appear to argue the demur- rer, it is not to be overruled, but the court will hear the complain- ant.-'""'' The demurrer must be determined as of the time it was filed.'*^ m 1 Barbour, Ch. Pr. Ill ; East India Co. v. Henchman, 1 Ves. Jr. 289; Phelps v. McDonald, 2 MacArthur (D. C.) 375; Black v. Shreeve, 7 N. J. Bq. 440; Tallmadge v. Lovett, 3 Edw. Ch. (N. Y.) 563; Chi-- cago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. 18; Gray v. Regan, 23 Miss. 304. 1*2 Mutual Reserve Fund Life Ass'n v. Bradbury, 53 N. J. Eq. 643, 33 Atl. 960. 143 1 Daniell, Ch. PI. & Pr. (4th Ed.) 596. 144 Morgan v. Scott, Minor (Ala.) 81, 12 Am. Dec. 35. 145 Thomas v. Winter, 21 Ga. 358. 1*6 1 Hoffman, Ch. Pr. 218; Penfold v. Ramsbottom, 1 Swanst. 552. 1*7 Scott V. McFarland, 34 Miss. 363. (262) Ch. 11] DEMURRERS. § 229 § 229. Sustaining the demurrer. / Formerly, on a demurrer to the wliole bill being allowed, tbe case was out of court, and no subsequent proceedings could be taken therein.^*^ The rigor of this rule has been relaxed in most jurisdictions by liberal statutory provisions relative to amendments.^*® The allowance of a partial demurrer was never attended with such consequences as a demurrer to the whole bill. The bill, or that part of it which was not covered by the de- murrer, still remained in court, and the complainant might ob- tain an order to amend, or to refer the answer upon exceptions, or adopt any other proceedings in the case in the same man- ner that he might have done had there been no demurrer.-'^" ■^ Under the modern practice, when a bjll discloses merits, though deficiently stated, the court may sustain a demurrer, but must grant leave to amend the bill.-^^^- A court of equity should not dismiss a bill, when the allegations are sufficient to authorize the court to grant the relief sought, because the complainant has failed to make proper parties. The complainant should be allowed to amjend his bill, and further proceedings had, that the 1*8 1 Barbour, Ch. Pr. Ill; Beacli, Mod. Bq. Pr. § 279; Smith v. Barnes, 1 Dickens, 67; Watkins v. Bush, 2 Dickens, 701; Mallery v. Dudley, 4 Ga. 52; Edward P. Allis Co. v. Withlacoochee Lumber Co., 105 Fed. 680. 1*9 Beach, Mod. Eq. Pr. § 279; National Bank v. Carpenter, 101 U. S. 567; Fleece v. Russell, 13 111. 31; Cullison v. Bossom, 1 Md. Ch. 95. For practice in federal courts, see United States Equity Rule 35; National Bank v. Carpenter, 101 U. S. 567; United States v. Atherton, 102 U. S. 372; Edward P. Allis Co. v. Withlacoochee Lumber Co., 105 Fed. 680. See post, § 378 et seq. 150 1 Barbour, Ch. Pr. Ill; Mitford, Eq. PI. 215; Durling v. Hammar, 20 N. J. Eq. 220. See Beauchamp v. Gibbs, 1 Bibb (Ky.) 481; Lookout Bank v. Susong, 90 Tenn. 590, 18 S. W. 389; McElwee v. Massey, 10 Rich. Eq. (S. C.) 377. 151 Shonk v. Knight, 12 W. Va. 667; Puterbaugh v. Elliott, 22 111. 157; Wright v. Dunklin, 83 Ala. 317, 3 So. 597; Roser v. Slade, 3 Md. Ch. 91; Hiller v. Cotton, 48 Miss. 593; Rose v. King, 4 Hen. & M. (Va.) 475; Barnard v. Cushman, 35 111. 451; Hunt v. Rousmaniere, 2 Mason, 342, Fed. Cas. No. 6,898; Palmer v. Rankins, 30 Ark. 771; Thurmond v. Clark, 47 Ga. 500; Davis v. Clabaugh, 30 Md. 508; Gray v. Hays, 7 Humph. (Tenn.) 588; Bigelow v. Sanford, 98 Mich. 657, 57 N. W. 1037. (263) § 229 EQUITY PLEADING AND PRACTICE. [Ch. 11 , cause may be determined on its merits.^^^^An application for 1 leave to amend a bill, after a demurrer has been sustained there- 1 to, is addressed to the discretion of the court.-' ^^ When a demur- rer going to the merits of the whole bill is sustained for want of equity, it is not the practice to allow amendments, so as to make a new case with new parties.^^* It is not error to dismiss a bill on demurrer if it is without equity. If the equities are defective- ly stated, the bill may be retained for amendment.-' ^^ It is said thjat it is usual, on allowing a demurrer for any cause which the court sees, on the argument, may be obviated by amending the bill, to give leave to amend on paying the costs of demurrer; but that where the court, on the argument, cannot see, from the facts before it, how the objection on which the demurrer was sustained could be removed, it is necessary for the complainant to apply for leave to amend by petition, setting forth the addi- tional facts sought to be incorporated in the bill.-'®®/ Where a demurrer is sustained, unless leave to amend is asked, a dismis- sal of the bill is the proper decree. / By omitting to ask leave to 152 Colbert v. Daniel, 32 Alk. 314; Ferrill v. Ferryman, 34 Ga. 576; Davis v. Clabaugh, 30 Md. 508; Tlndal v. Drake, 51 Ala. 574; Frazer v. Legare, Bailey, Eq. (S. C.) 389. 153 Campbell v. Powers, 139 111. 128, 28 N. E. 1062; Dowell v. Apple- gate, 8 Fed. 698; Magruder v. Campbell, 40 Ala. 611; Edward P. Allis Co. v. Withlaooocbee Lumber Co., 105 Fed. 680; Boston & A. R. Co. v. Parr, 98 Fed. 483. 154 March v. Mayers, 85 111. 177. 155 Puterbaugti v. Elliott, 22 111. 157; Barnard v. Cushman, 35 111. 451; Pickens' Bx'rs v. Knisely, 36 W. Va. 794, 15 S. E. 997; Lincoln v. Pur- cell, 2 Head (Tenn.) 143; Lea v. Robeson, 12 Gray (Mass.) 280; Lyon V. Tallmadge, 1 Jobns. Cb. (N. Y.) 184; McElwain v. Willis, 3 Paige (N. Y.) 505. 15G Bank of Michigan v. Niles, Walk. (Mich.) 398. Where the court rejects all the grounds of demurrer to a bill urged by counsel, and sustains the demurrer, on the ground of laches, which ground was not urged by counsel, thus taking the complainant by surprise, and enters a decree dismissing the bill, it is error to refuse to vacate such decree, and permit an amendment by complainant fully explaining everything savoring of laches or acquiescence. Cottrell v. Watkins, 89 Va. 801, 17 S. B. 328, 37 Am. St. Rep. 897, 19 L. R. A. 754. (264) Ch. 11] DEMURRERS. § 230 amend, tlie complainant elects to stand by his bill.^^V^ In Illi- nois, a complainant, willing to rest his case upon a demurrer, must move the court to dismiss the bill. Such a decree is final, and appeal or error will then lie. / A decision on the demurrer is merely interlocutory.^^^ A demurrer, being frequently on mat- ter of form, is not, in general, a bar to a new bill ; but if the court, on demurrer, has clearly decided on the merits of the questions between the parties, the decision may be pleaded in another suit.-*^* Where a demurrer for multifariousness is sustained, the complainant may dismiss his bill as to those defendants by the joinder of whom the bill is rendered bad, and proceed as to the rest.-^®" Where a demurrer, although containing several grounds, is single, and directed to the whole bill, the effect of sustaining any one ground is to sustain the entire demur rer.-'-®'^ § 230. Form of order sustaining demurrer. [Title of court and cause.] This cause coming on now to be heard upon the demurrer of the de- fendant, C. D., filed herein, to the bill of complaint, after argument of counsel and due deliberation by the court: It is hereby ordered that the demurrer to the bill of complaint In said cause be sustained. And it is further ordered that leave be, and the same is hereby, given the complainant to amend his bill of complaint herein within five days from this date. 157 McDowell V. Cochran, 11 111. 31; De Louis v. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491; Aldine Mfg. Co. v. Phillips, 118 Mich. 162, 76 N. W. 371, 42 L. R. A. 531. iBsKnapp V. Marshall, 26 111. 63; Weaver v. Foyer, 70 111. 567; Mar- tin V. Jamison, 39 111. App. 257; Shaw v. Hill, 67 111. 455; American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 111. 210, 32 N. E. 274. 159 Mitford, Bq. PL 216; 1 Barbour, Ch, Pr. Ill, 112. See post, § 579 et seq. 180 Johnson v. Brown, 2 Humph. (Tenn.) 327, 37 Am. Dec. 556. It is said that where a defendant demurs to a portion of a bill, and raises questions of fact by answer to the balance, when such demurrer is sus- tained, and the complainants elect to abide by their bill, the complain- ant is entitled to have the case set down for a hearing upon the ques- tions raised by the answer. Brewster v. Cahill, 81 111. App. 626. 181 Tatum T. Tatum, 111 Ala. 209, 20 So. 341. (265): § 232 EQUITY PLBADINQ AND PRACTICE. [Ch. 11 § 231. Form of order sustaining demurrer and dismissiiig bill (in Illinois). [Title of court and cause.] This cause coming on now to be heard upon the demurrer of the de- fendant, C. D., filed herein, to the bill of complaint, after argument of counsel and due deliberation by the court, -which is fully advised in the premiises: It is ordered, adjudged, and decreed that the demurrer of the said defendant to the bill of complaint be, and it is hereby, sustained, on the ground that there is no equity in the said bill. And the complainants electing to stand by their said bill of com- plaint, and moving that, if the court holds that there is no equity in the said bill, the court dispose of it, in order that they may, by ap- peal or writ of error, secure the review of the action of the court in so holding; and the court finding that there is no equity in the said bill: It is therefore ordered, adjudged, and decreed that said bill of com- plaint be, and it is hereby, dismissed out of court for want of equity, and at complainants' costs, and that this decree be treated and re- garded and stand in all respects as the final decree in this cause. § 232. Overruling demurrer. / Where a dennarrer to a bill is overruled, a final decree with- out giving defendant an opportunity to deny the allegations in the bill is erroneous.-^ y-' The correct practice is not to render a decree, but to make an order requiring the defendant to an- swer, and, if be does not do so, to take the bill as confessed.-'^ 162 Smith V. Ballantyne, 10 Paige (N. Y.) 101; Sutton v. Gatewood, 6 Munf. (Va.) 398; Bowman v. Marshall, 9 Paige (N. Y.) 78; Lambert V. Lambert, 52 Me. 544. For practice in federal court, see United States Equity Rule 34; Wooster v. Blake, 7 Fed. 816; Fellows v. Hall, 3 McLean, 487, Fed. Cas. No. 4,723. 163 Bruschke v. Nord Chicago Schuetzen Vereln, 145 111. 434, 34 N. E. 417; Jocelyn v. White, 98 111. App. 50; Miller v. Davidson, 8 111. 518, 44 Am. Dec. 715; Creasey v. St. George's Soc. of Detroit, 34 Mich. 51; Nichols V. Heirs of Nichols, 8 "W. Va. 174; Hays v. Heatherly, 36 W. Va. 613, 15 S. E. 223; Billingslea v. Manear, 47 W. Va. 785, 35 S. E. 847, distinguishing Foley v. Ruley, 43 "W. Va. 513, 27 S. E. 268. It is said, however, to be entirely within the discretion of the court whether a defendant will be ruled to answer after a demurrer has been overruled. The court may enter a dScree against the defendant at once, or may hear evidence, or refer the case to a master to hear evidence, before entering a decree. Iglehart v. Miller, 41 111. App. 442; Roach v. Chapin, 27 111. 194; Wangelin v. Goe, 50 111. 459; Miller v. Davidson, 8 111. 518; Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 434, 34 N. B. 417. (266) Ch. 11] DEMURRERS. § 232 Leave to file a plea after a demurrer is overruled will not be granted where it is manifest that the plea offered, if true in fact, would he no bar to the relief sought by the bill.^"* If a demurrer is overruled because the facts do not sufficiently ap- pear upon the face of the bill, defense may be made by plea stating the facts necessary to bring the case triily before the court, though this right has been denied.^ ®^/^ After a demurrer has been overruled, a second demurrer will not be allowed.^®" /The overruling of a demurrer does not prevent the defendant from making the same objections in his answer, nor preclude the court from an examination of them at the hearing.-'®^ A demur- rer, being a mute thing, cannot, like a plea, be ordered to stand for an answer.^ '^V^ Where a demurrer going to the whole bill is overruled, it is an adjudication that the complainant is entitled to some relief ; but the extent of the relief is still an open ques- tion. -"^^^^ -^^ order simply sustaining, or an order overruling, a demurrer, is not final. ^^°/ Where there is a demurrer to the whole bill, and also to part, and the latter only is sustained, the proper decree is to dismiss so much of the bill as seeks relief lei Seeley v. Price, 5 N. J. Eq. 231. See Brent v. Washington's Adm'r, 18 Grat. (Va.) 526, for right of court to enter decree where demurrer by one already in default for want of answer is overruled, and defend- ant does not ask leave to answer. i65Mltford, Eq. PI. 216; Story, Bq. PI. § 460; Mitford & T. PI. & Pr. in Eq. 310; East India Co. v. Campbell, 1 Ves. Sr. 246. i«6 Mitford & T. PI. & Pr. in Eq. 310; Story, Eq. PI. § 460; Baker v. Mellish, 11 Ves. 70; Puller v. Knapp, 24 Fed. 100. See Hoge v. Junkin, 79 Va. 220; Booth v. Stamper, 10 Ga. 113. 167 Avery v. Holland, 2 Overt. (Tenn.) 71, citing Dormer v. Portescue, 2 Atk. 284. It is said that, if a demurrer be overruled on argument, defendant must make a new defense, and it is not respectful to the court to set up the same defense in an answer. Tison v. Tison, 14 Ga. 167, citing Townsend v. Town send, 2 Paige (N. Y.) 413. 168 1 Barbour, Ch. Pr. 113; Anonymous, 3 Atk. .530. 169 Johnson v. Wheelock, 63 Ga. 623. It is said that the overruling of a demurrer without assigning any reason therefor does not de- termine finally the sufficiency of the bill, but only that there is suffi- cient equity on its face to require an answer. Battle v. Street, 85 Tenn. 282, 2 S. W. 384; McNairy v. City of Nashville, 2 Baxt. (Tenn.) 251. ii'D Rose V. Gibson, 71 Ala. 35; Armor v. Lyon, 1 Colo. 7. (26Y) § 234 EQUITY PLEADING AND PRACTICE. [Ch. 11 in reference to the matters adjudged to be bad, overrule the !, demurrer as to the residue, and direct the defendant to answer thereto.^ '^V A final decree granting the relief asked overrules all the demurrers to the bill.-^^^ Where a demurrer is over-' ruled, and an order is entered that an answer be put in within a time specified, or that the bill be taken as confessed, if further time to answer is necessary, an ex parte order for that purpose is irregular. Defendant must apply to the court, after notice to complainant's solicitor, for further time.-^''® Where the court enters a decree for the complainant without in terms overruling a demurrer, its action is equivalent to overruling the demur- § 233. Form of order overruling demurrer. [Title of court and cause.] This cause coming on to te heard upon the demurrer of the de- fendant, C. D., filed herein, to the hill of complaint, after argument of counsel an.d due deliberation by the court, said demurrer is over- ruled, and It is ordered that the said defendant, C. D., answer the bill of com- plaint herein within ten days from this day. § 234. Taking demurrer off the files. Under the old chancery practice, if the defendant omits to put in his demurrer, or to answer, within the time limited by the order, and an attachment is in consequence issued against him for want of an answer, a demurrer, even though coupled with an answer, will be irregular. The proper course, in such a case, is to move that the demurrer and answer be taken off the files, and not that the demurrer be overruled.^'' V When a demur- rer is taken off the files for irregularity, it ceases to be a record of the court, and the defendant may therefore put in another de- iTi Giant Powder Co. v. California Powder Co., 98 U. S. 126. 172 Cochran v. Miller, 74 Ala. 50; Hinchman v. Ballard, 7 W. Va. 152. 173 Hurd V. Haynes, 9 Paige (N. Y.) 604. For practice on such appli- cation, see Atlantic Ins. Co. v. Lemar, to Paige (N. Y.) 385. 174 Pluharty V. Mills, 49 W. Va. 446, 38 S. E. 521. 175 1 Barbour, Ch. Pr. 113; Curzon v. De la Zouch, 1 Swanst. 185. (268) Ch. 11] DEMURRERS. g 234 murrer, if his time for answer has not expired, as if no demur- rer had been filed.^^®- The distinction between taking a demur- rer off the files and simply overruling it is that the former course is adopted in all cases where there has been an irregularity in the filing of the demurrer, and the latter whenever it has been properly filed, but the court is of the opinion that it is insuffi- cient, or that it has been overruled by the answer.^ ^'^ It is said that a court of chancery has inherent power, on motion, to strike a demurrer from the files, where it is clearly frivolous, or clearly intended for the sole purpose of delay.-'^® 176 1 Barbour, Ch. Pr. 113; Gust v. Boode, 1 Sim. & S. 21. "T 1 Barbour, Ch. Pr. 113; Curzon v. De la Zouch, 1 Swanst. 185. When, under United States Equity Rule 31, the demurrer is defective in not being verified by defendant nor certified by counsel, complainant may disregard it, and take a pro confesso at the proper time, or move to strike it from the flies. American Steel & Wire Co. v. Wire Draw- ers' & Die Makers' Unions Nos. 1 and 3, 90 Fed. 598; Goodyear v. Toby, 6 Blatchf. 130, Fed. Cas. No. 5,585. 178 Stanbery v. Baker, 55 N. J. E([. 270, 37 Atl. 351; Travers v. Ross, 14 N. J. Ed. 254; Bowman v. Marshall, 9 Paige (N. Y.) 78. (269) CHAPTER XII. PLEAS. § 235. General nature of pleas. Where an objection to the bill is not apparent on the bill it- self, the defendant, if he wishes to take advantage of it, must show to the court the matter which creates the objection, by an- swer or plea/ A plea is a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed, or barred.^/ It has been said to differ from an answer in the common form, as it demands the judgment of the court, in the first instance, whether the special matter urged for it does not debar the complainant from his title to that an- swer which the bill requires.^/ A plea which sets forth nothing excej^t 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 office of a plea is to bring forth fresh matter not apparent in the bill.^ Every defense which may be a full answer to the merits of the bill is not, as of course, to be considered as entitled to be brought forward by way of plea. Where a defense consists in a variety of circumstances, iMitford, Eq. PI. 21S, 219; Cooper, Eq. PI. 223; Story, Eq. PI. §§ 647, 649; 1 Barbour, Ch. Pr. 114; Heartt v. Corning, 3 Paige (N. Y.) 566; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 603; Cowan v. Price, 1 Bibb (Ky.) 173, 4 Am. Dec. 627; Cockburn v. Thompson, 16 Ves. 321; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734. See, for extensive consideration of pleas, Carroll v. Waring, 3 Gill & J. (Md.) 491. 2 Roche v. Morgell, 2 Schoales & L. 725; Beames, Pleas in Eq. 1; Story, Eq. PI. § 649. aCozine v. Graham, 2 Paige (N. Y.) 177; Phelps v. Garrow, 3 Edw. Ch. (N. Y.) 139; Billing v. Flight, 1 Madd. 230; Davis v. Davis, 57 N. J. Eq. 252, 41 Atl. 353; Bicknell v. Gough, 3 Atk. 558; Supreme Lodge, K. & L. of H., v. Wing (Ala.) 31 So. 3. (2Y0) Ch. 12] PLEAS. § 236 there is no use in a plea. The examination must still be at large, and the effect of allowing such a plea will be that the court will give their judgment upon the circumstances of the case before they are made out by proof/ The true end of a plea is to save to the parties the expense of an examination of the witnesses at large. */^ The defense proper for a plea is such as reduces the cause, or some part of it, to a single point, and from thence cre- ates the bar or other obstruction to the suit, or to the point to which the plea applies.^i Story, Eq. PI. § 651; Bayley v. Adams, 6 Ves. 594. 10 1 Daniell, Ch. PI. & Pr. (4th Ed.) 604. "Story, Eq. PL § 659; Mitford, Eq. PI. 294. 12 Story, Eq. PL § 660; Black v. Black, 15 Ga. 445. 13 Mitford, Eq. PL 295; Story, Eq. PL § 661; Spangler v. Spangler, 19 111. App. 28; Morison v. Tumour, 18 Ves. 175. 14 Mitford, Eq. PL 298; Story, Eq. PL § 665, cited with approval in Gage V. Harbert, 145 111. 535, 32 N. E. 543; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Brownsword v. Edwards, 2 Ves. Sr. 245, note; Roche v. Morgell, 2 Schoales & L. 727; Cheney v. Patton, 134 111. 422, 25 N. E. 792; (272) Ch. 12] PLEAS. g 238 § 238. Negative pleas. ' A negative plea is one in which an allegation of the bill is denied. It is applicable when the complainant, by a false alle- gation on one point, has created an apparent equity, and asks discovery as a conseqnence>f^as, for example, where he alleges himself to be a partner or heir at law, and asks for an account of the business or particulars of the estate. In this case a de- nial by answer would exclude the relief, but it would not pro- tect the defendant from giving the reqttired discovery, because a defendant who answers at all must answer fully. In order, therefore, to avoid such discovery, the defendant must resort to a negative plea, denying the allegation of partnership or heir- ship, and^mtil the validity of ms plea is determined, he will>, be protected from gi\'ing discovery consequent on the allega- tion. ^5-^ A pure, negative plea can seldom be made available; for, though it protects against discovery consequent upon the alleged equity, it does not protect against discovery required to prove it/' If, therefore, there be any statements in the bill tend- ing lo prove the disputed allegation, distinct from such allega- tion itself, the discovery asked on those points must be excepted from the plea, and must be given by an answer in suj^port. /Thus, if the equity alleged is that a testator Avas indebted to the complainant, and the bill asks discovery consequent on the debt, — fur example, j^'iyment of interest, — a plea of no debt will cover all the discovery and relief sought, including the allega- tion of debt, but excepting the disco\'ery in e videnc e of the debt. Mi-' And the same principle has been held applicable where Da Costa v. Dibble, 40 Pla. 418, 24 So. 9H. A plea to a bill for noajoinder of parties is a pure plea, consisting of new matter, and does not re- quire an answer in support of it. It admits the case made by the bill, but objects that complainant cannot have relief on account of the defect. Goldsmith v. Gilliland, 24 Fed. 154. 1-. Adams, Eq. 337; Story, Eq. PI. § 667; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362. ]c Adams, Eq. 337; Thring v. Edgar, 2 Sim. & S. 274; Denys v. Looock, 3 Mylne & C. 205; Sanders v. King, 6 Madd. 61; Everitt v. Watts, 3 Edw. Ch. (N. Y.) 486; Rhino v. Emery, 79 Fed. 483. (273) Equity — 18 § 239 EQUITY PLEADING AND PRACTICE. [Ch. 12 the plea was negative in substance, though not in terms ; as, for example, where the bill alleged that a deceased person iiad left no heirs on the part of his father, and that the complainant was an heir on the part of his mother, and alleged further that the defendants, by correspondence, had admitted the complainant's title, a ]Dlea that a specified person was an heir on the part of the father was overruled because it was not coupled with an answer as to the alleged correspondence.^'^ The answer is no part of the defense, but a discovery of that evidence which the complainant has the right to require, and to use, in order to in- validate the defense made by the plea, upon the argument of the sufficiency of the plea, before other evidence can be given.-'* § 239. Anomalouspleaa,_ There is a plea which is generally included vuider the head of pleas not pure, though by some writers assigned to a third class of pleas, and which may be termed the "anomalous plea," which inapplicable when the complainant has anticipated a legitimate plea, and has charged an equity in avoidance of i^as, for exam- ple, when, having stated his original equity, he states that a sub- sequent release was given, or is pretended by the defendant to have been given, and charges fraud in obtaining such release. In this case the release or other original defense may be pleaded, with averments denying the fraud or other equity charged in avoidance. The term "anomalous" is applicable to such plea, because it does not tender an independent issue, but sets up anew the impeached defense, with averments in denial of the impeach- ing equity. >- It is obvious from the nature of the anomalous plea that it is only good against the original equity, and is ineffective against the equity charged in avoidance ; and therefore the alle- gations which constitute that equity must not only be denied by 17 Adams, Eq. 338; Emerson v. Harland, 3 Sim. 490; Clayton v. Win- chelsea, 8 Younge & C. Exch. 426. 18 Story, Ea- PI. § 671; Foley v. Hill, 3 Mylne & C. 475; Bayley v. Adams, 6 Ves. 594; Mitford, Eq. PI. 244, note. The origin, importance, and justice of pleas not pure are interestingly considered by Mr. Justice Story in his work on Equity Pleading, §§ 671-679. (274) Ch. 12] PLEAS. § 241 averments in the plea in order to render the defense complete,' but must, in respect to the complainant's right of discovery, be the subject of a full answer in support.^' i 240. General rules as to requisites of pleas. A plea in equity should aver distinctly and clearly all the facts necessary to render it a complete equitable defense to the case made by the bill, so far as the plea extends.^y/ It must be specific and distinct, and must be perfect in itself, so that, if true, it wiU make an end of the case, or that part of the case to which it applies.^^ It must be positive, and not argumenta- \ § 241. Flea may be to whole or part of bill. A plea, like a demurrer, may be either to the whole bill, or to a part only of the bill. If it does not go to the whole bill, : it should definitely and exactly express to what parts it does j extend ; and if one defense is made by the answer, and another j defense by the plea, the plea will be ordered to stand for an* answer. Whenever a plea is to the whole of a bill, if it is aj bar at all, an answer to any part of the bill overrules the pleaA If the plea is to the whole of the bill, but does not extend toj 18 Adams, Eq. 338; Foley v. Hill, 3 Mylne & C. 475; Missouri Pac. Ry. Co. V. Texas & P. Ry. Co., 50 Fed. 151; Henderson v. Chaires, 35 Fla. 423, 17 So. 574; Bayley v. Adams, 6 Ves. 594. 20 Cheney v. Patton, 134 111. 422, 25 N. B. 792; McCloskey v. Barr, 38 Fed. 165; Mount v. Manhattan Co., 41 N. J. Bq. 211, 3 Atl. 726; Allen V. Randolph, 4 Johns. Ch. (N. Y.) 693; Davison v. Schermerhom, 1 Barb. (N. Y.) 480; Salters v. Tobias, 3 Paige (N. Y.) 338. 21 Cheney v. Patton, 134 111. 422, 25 N. B. 792; Whitthome v. St. Louis Mut. Life Ins. Co., 3 Tenn. Ch. 147; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951; Meeker v. Marsh, 1 N. J. Eq. 198. 22 McDonald v. Salem Capital Flour-Mills Co., 31 Fed. 577. It is held that when a plea relates to the acts of third persons, to which defend- ant is not a party, it may be on information and belief. Parker v. Parker, Walk. (Mich.) 457, citing Drew v. Drew, 2 Ves. & B. 159; Cooper, Eq. PI. 228; Heartt v. Corning, 3 Paige (N. Y.) 566. (275) § 244 EQUITY PLEADING AND PRACTICE. [Ch. 12 or cover the whole, the plea is bad.^V It is said that, unlike a demurrer, a plea may be good in part, and not in the whole. Thus, if a plea covers too much, the court will allow it to stand for the part which it properly covers.^* § 242. Strictness in pleas. In pleas in equity there must, in general, be the same strict- ness and exactness as in pleas at law, — if not in matters of form, at least in matters of substance.^^ § 243. Fleas of matter subsequent to the filing of the bill. / Any matter arising between the filing of the bill and the plea may be pleaded. Matters arising subsequent to the filing of the plea must be presented by cross bill.^*/ i 244. Duplicity in pleaa. / It is a general rule that a plea ought not to contain more de- fenses than one, and that a double plea is improper.^'' /"What- asMitford, Eq. PI. 294, 295; Story, Bq. PI. § 693, cited with approval in Snow v. Counselman, 136 111. 191, 26 N. B. 590; MlUigan v. Milledge, 3 Cranch (U. S.) 220; Beard v. Bowler, 2 Bond, 13, Fed. Cas. No. 1,180. 2* Cooper, Eq. PI. 230; Story, Bq. PI. § 692; Dormer v. Fortescue, 2 Atk. 282; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Duncalf v. Blake, 1 Atk. 52; Kirkpatrick v. White, 4 Wash. C. C. 595, Fed. Cas. No. 7,850; Wythe v. Palmer, 3 Sawy. 412, Fed. Cas. No. 18,120; Rhino v. Emery, 79 Fed. 483. 26 Gage V. femith, 142 111. 191, 31 N. E. 430, citing Story, Eq. PI. §§ 652, 658, 665; Danels v. Taggart's Adm'r, 1 Gill & J. (Md.) 311; Whit- lock V. Fiske, 3 Edw. Ch. (N. Y.) 131; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Mitford, Eq. PI. 294. S8 1 Daniell, Ch. PI. & Pr. (4th Ed.) 606, 607; Ferris v. McClure, 36 111. 77; Rowe v. Wood, 1 Jac. & W. 315; Cross v. De Valle, 1 Wall. (U. S.) 5; Wood V. Rowe, 2 Bligh, 595; Wright v. Meek, 3 G. Greene (Iowa) 472; French v. Bellows Falls Sav. Institution, 67 111. App. 179; Miller V. Fenton, 11 Paige (N. Y.) 18. See post, §§ 305, 394, 889. aT Mitford, Eq. PI. 295, 296; Story, Eq, PI. § 663; State of Rhode Island V. State of Massachusetts, 14 Pet (U. S.) 210; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; Gilhert v. Murphy, 100 Fed. 16i; Farley V. Kittson, 120 U. S. 303; Mains v. Homer Steel-Fence Co., 116 Mich. 526, 74 N. W. 735; Whithread v. Brockhurst, 1 Brown Ch. 404, 412; (276) Ch. 12] PLEAS. g 245 ever be the nature of the plea, whether affirmative or negative, or of the anomalous nature before alluded to, the matter plead- ed must reduce tie issue between the complainant and defend- ant to a single ])omt.'-^^ / ±\. plea is not rendered double by theJ;^^ mere insertion therein of several averments that are necessary to exclude conclusions arising from allegations which are made in the bill to anticipate/'Snd defeat the bar which might be set up in the plea.^" § 245. Filing more than one plea. / The rule that a defendant cannot plead double is not to be \ understood as precluding him from putting in several pleas to '; different parts of the same bill. It merely prohibits his plead- , ing, without previous leave, a double defense to the whole bill / or to the same portion of it.X A defendant may plead different matters to separate parts of the same bill, in the same manner that he may plead to different portions of the bill.'^° Although the ordinary course of practice does not admit of several pleas, vet, Avliere a great inconvenience niight otherwise be sustained in a pai'ticular case, FrVe"court \yill sometimes, in its discretion, allow several pleas. y/Tlms,'"' for examjDle, a plea that the com- J Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Briggs v. Stroud, 58 Fed. 717; Albany City Bank v. Dorr, Walk. (Mich.) 317. 28 1 Daniell, Ch. PI. & Pr. (4th Ed.) 607; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26. 28 1 Barbour, Ch. Pr. 116; Hazard v. Durant, 25 Fed. 26; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. Where more than one point of defense is relied upon, such points should be stated by way of answer, and not of plea. Reissner v. Anness, 3 Ban. & A. 148, Fed. Cas. No. 11,686; Didier v. Davison, 10 Paige (N. Y.) 515. If a plea contains matter proper for a demurrer, for a plea in bar, for a plea in abate- ment, and for an answer, it is bad for duplicity. Gaines v. Mausseaux, 1 Woods, 118, Fed. Cas. No. 5,176. 30 1 Barbour, Ch. Pr. 117; Van Hook v. Whitlock, 3 Paige (N. Y.) 409; 1 Daniell, Ch. PL & Pr. (4th Ed.) 609; Benson v. Jones, 1 Tenn. Ch. 498; Moreton v. Harrison, 1 Biand (Md.) 493; Bunker Hill & Sulli- van Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; McCloskey v. Barr, 38 Fed. 165. (217) § 246 EQUITY PLEADING AND PRACTICE.' [Ch. 12 plainaut is not heir, and a plea of the statute of limitations, have been allowed to be pleaded together.^- Before a defendant can plead double, leave of court must be obtained. '^7' When several pleas are filed without leave of the court, the defendant will be put to his election as to which one he will stand on.^y* It is not a matter of course to grant leave to the defendant to file more than one plea.^* Leave to file two or more pleas will only be granted on application made on notice to the complainant, and in cases where it is made to appear that the defendant might suffer inconvenience if it were not granted.^^ § 246. Pleas supported by answer. In certain instances, a plea must be supported by an answer. Some confusion exists in regard to the necessity therefor. /*A pure plea need not be supported by an answer."'" A negative or anomalous plea must be supported by an answer. ^V*" It was formerly a question of much discussion and controversy wheth- er a purely negative plea to a bill was a legitimate mode of defense. It is now firmly established that such a plea is good."* 31 Story, Bq. PL § 657; 1 Daniell, Ch. PI. & Pr. (4tli Ed.) 608, 609; Van Hook v. Whitlock, 3 Paige (N. Y.) 409; Bampton v. Birchall, 4 Beav. 558; Kay v. Marshall, 1 Keen, 190; MoCloskey v. Barr, 38 Fed. 165; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214. 32 1 Daniell, Ch. PI. & Pr. (4th Ed.) 609; Benson v. Jones, 1 Tenn. Ch. 498; Wheeler v. McCormick, 8 Blatchf. 267, Fed. Cas. No. 17,498; Giant Powder Co, v. Safety Nitro Powder Co., 19 Fed. 509; Mount v. Manhattan Bank of New York, 44 N. J. Eq. 297, 18 Atl. 80; Hostetter Co. V. E. G. Lyons Co., 99 Fed. 734; Briggs v. Stroud, 58 Fed. 717. 33Noyes v. Willard, 1 Woods, 187, Fed. Cas. No. 10,374; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214. St Benson v. Jones, 1 Tenn. Ch. 498; Wheeler v. McCormick, 8 Blatchf. 267, Fed. Cas. No. 17,498. 1 35 Underwood v. Warner, 3 Phila. (Pa.) 414; Kay v. Marshall, 1 Keen, 190; Mount v. Manhattan Co., 43 N. J. Eq. 25, 9 Atl. 114. 36 West Portland Homestead Ass'n v. Lownsdale, 17 Fed. 205 ; Gold- smith V. Gilliland, 24 Fed. 154. 37 Story, Bq. PI. § 670; Beames, Pleas in Eq. 34, 35. "•* Story, Eq. PI. § 668; Beames, Pleas in Eq. 123-128; Spangler v. Spangler, 19 111. App.^28; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 604; Rhino V. Emery, 79 Fed. 483; Sanders v. King, 2 Sim. & S. 277; Thring v. Edgar, 2 Sim. & S. 274. (278) Ch. 12] PLEAS. § 246 It was formerly thought that there was something incongruous in a plea and an answer in support of a plea. This seems to have arisen from the supposition that the answer in such case formed a part of the defense set up bv the plea. But siich an- swer is no part of the defense. The defense is the matter set up by the plea. The ans'\\'er is that e^ddenee which the com- plainant has a right to require and to use to invalidate the de- fense made bj' the plea, and the complainant is entitled to make use of it, not only upon the hearing of the cause upon the issue raised by the plea after the plea shall have been decided to be a good bar upon argument, but upon the argument of the plea itself, before any evidence can be given for the purpose of coun- ter-proving the plea, by reading from it any facts or admis- sions which may negati^'e the matters averred in the plea.^^ Where there is any statement or charge in tlie bill ■which avers an equitable circumstance in favor of the complainant's case, against the matter pleaded, such as fraud or notice of title, that statement or charge must be denied by way of answer as well as by averment in the plea-^VThe cases in which it is necessary thatf 39 story, Bq. PI. §§ 670, 671; 1 Barbour, Ch. Pr. 129; Hildyard v. Cressy, 3 Atk. 303; Hony v. Hony, 1 Sim. & S. 569; Foley v. Hill, 3 Mylne & C. 475; Bayley v. Adams, 6 Ves. 594. 10 1 Barbour, Ch. Pr. 128; Mitford, Eq. PI. 239, 244; Taylor v. Duncan- son, 20 D. C. 505; Rouskulp v. Kershner, 49 Md. 516; Bellows v. Stone, 8 N. H. 280; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384; Souzer V. De Meyer, 2 Paige (N. Y.) 574; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Seifred v. Peo- ple's Bank, 1 Baxt. (Tenn.) 200. "In Adams, Eq. (Ed. 1890) p. 61, the statement of the rule is as follows: 'It often happens, where a negative plea is used, that the bill contains allegations in evidence of the disputed statement. In this case the plea of its untruth will not protect from discovery of matters which would prove it true; and therefore these allegations must be excepted from the plea, and must be met by an answer in support.' And again, on page 337: 'In order, therefore, to avoid such discovery, he must resort to a negative plea denying the allegations of partnership or heirship; and, until the validity of his plea is determined, he will be protected from giving discovery consequent on the allegation. It is, however, very seldom that a pure negative plea can be made available; for, although it pro- tects against discovery consequent on the alleged equity, it does not (27'J) § 246 EQUITY PLEADING AND PRACTICE. [Ch. 12 a plea should be supported by an answer have been conveniently divided into: (1) Those where the complainant admits the existence of a legal bar, but charges some equitable circumstance to avoid its effect^* as, for example, where a release is charged in the bill to have been obtained by fraud, the circumstances whereof are specially charged. In such a case a plea nnist rely on the release, and deny the fraud; and the accompanying an- swer must also make discovery as to all the circumstances charged as proof of the same."*^/ (2) Those where the complainant does I not admit the existence of any legal bar, but states some cir- protect against discovery required to prove it. If, therefore, there be any statements in the bill tending to prove the disputed allegation distinct from such allegation itself, the discovery asked on thes<5 points must be excepted from the plea, and must be given by an an- swer in support,' — citing Thring v. Edgar, 2 Sim. & S. 274; Denys v. Locock, 3 Mylne & C. 205. I ought to add that the view expressed above with reference to the ansVer in support of the negative plea Is not that which meets the approval of Prof. Langdell in his Equity Pleading. Langdell, Eq. PI. pp. 116, 117. He traces the erroneous view to the decision of Sir John Leach in Thring v. Edgar, 2 Sim. & S. 274, but he admits the case has had its effect upon modern authorities, and that they support the conclusion I have stated above. See Hunt v. Penrice, 17 Beav. 525; Young v. White, 17 Beav. 5a2; Wilson v. Ham- monds, L. R. 8 Eq. 323." Rhino v. Emery, 79 Fed. 483. "The plea, whether an affirmative, pure plea, or a negative plea, must be in itself perfect, and make an absolute bar, with a view not only to its legal operation, if no matters are stated in the bill to displace it, but with a view to the effect of all such matters upon it. But it should not go further. It should not proceed to meet special allegations of circum- stances tending to prove the matter of equity relied on to destroy the legal bar. That must be done in the answer." Stuart v. Warren, 1 N. Y. Leg. Obs. 293. A learned writer has said: "If the defense which is set up by a plea has been anticipated by the bill, and evidence has been charged in disproof of the defense, the defendant must answer such charges of evidence, notwithstanding his plea, for an answer to that extent will be needed in trying the truth of the plea. The defend- ant, therefore, incorporates an answer with his plea, and 'then the answer is said to support the plea. Such an answer, it will be ob- served, contains discovery only, and it is called an 'answer in support of a plea,' to distinguish it from the case where a defendant defends by answer as to part of the hill, and by plea as to part." Langdell, Eq. PI. (2d Ed.) 100. 41 Story, Eq. PI. §§ 674, 675; 1 Barbour, Ch. Pr. 128. (280) Ch. 12] PLEAS. g 246 cumstance which may be true, and to which there may be a valid ground of plea, and also charges other circumstances which \ are inconsistent with the substantial validity of the plea ; us, i for example, where a bill is filed for an account of the deal- ings and transactions of a partnership, charging a partnership and various transactions thereof. In such a case, if the defend- i ant pleads that he is not a partner, the plea must be accom- panied with an answer and a discovery as to all circumstances J specially charged as evidence of the partnership.^' The an- swer in support of the plea must be full and clear; otherwise, it Avill not siipport the plea/ The court will intend all mat-1 ters charged in the hill to which the complainant is entitled ! to an answer, to be against the pleader, unless they are fully/ and clearly denied. "'^Z But if equitable matters are chari:eJ, and fully and clearly denied, the answer will be suifieient to support the plea, though all the circumstances charged in the bill may not be precisely answered. The complainant, how- ever, is not precluded by the court's holding, upon the argument 1- Story, Eq. PI. §§ 674, 675; 1 Barbour, Ch. Pr. 128, 129; Hare, Disc. 30-34; Sanders v. King, 6 Madd. 61; Drew v. Drew, 2 Ves. & B. 159; Bveritt v. Watts, 3 Edw. Ch. (N. Y.) 486; Crow v. Tyrell, 2 Madd. 409; Thring v. Edgar, 2 Sim. & S. 274. An anomalous plea denying a single part of the bill cannot avoid an answer to that part. The plea must be accompanied by an answer in support of it to so much of the bill as is denied. Dwight v. Central Vermont R. Co., 9 Fed. 785; Benson v. Jones, 1 Tenn. Ch. 498; Cox v. City of GrifBn, 17 Ga. 249. Where a bill charges fraud or errors in an account, and de- fendant files a plea of an account stated, such plea, if traversing speci- fications of the bill as to fraud only in general terms, must be sup- ported by a full answer and discovery as to such specifications. Taylor V. Duncanson, 20 D. C. 505. An anomalous plea, partly affirmative and partly negative, must be supported by an answer in support as to the allegations which constitute the replication, and as to all charges in support of such allegations. Somerset Bank v. Veghte, 42 N. J. Eq. 39, 6 Atl. 278. For cases discussing pleas in support of an answer, see Hilton V. Guyott, 42 Fed. 249; Hagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270; Schwarz v. Wendell, Har. (Mich.) 395; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594; Boggs v. Forsyth, 2 Sandf. (N. Y.) 533; Conover v. Wright, 6 N. J. Eq. 613. "1 Barbour, Ch. Pr. 129; Hildyard v. Cressy, 3 Atk. 303. § 247 EQUITY PLEADING AND PRACTICE. [Ch. 12 of the jilea, that the charges in the bill are sufficiently denied, from afterwards excepting to the sufficiency of the answer in any point in which he may consider it defective.** In an an- swer in support of a plea as to matters not alleged to be the acts of the defendant, or v/here, from the nature of the case, he cannot be supposed to have any personal knowledge, it is stiffi- cient for him to deny the facts charged upon his belief only.*^ J^o question can be raised by the answer in support of a plea which is not raised by the plea.*'^ Where the complainant waives the answer under oath, if the defendant puts in a plea to the bill he need not support it by answer.*''' Where the defense of the statute of limitations is not anticipated by the bill, and some equitable circumstance is not alleged therein for the purpose of avoiding the statute, the plea of the statute is a pure plea, and need not be supported by an answer.*/ But where the bill contains special matters in avoidance of the statute, there must be an answer in support of the plea.*^ ' A plea to the jurisdic- tion, that one of the parties is a citizen of a state other than that alleged in the petition for removal to the federal court, need not be supported by an answer.^" § 247. Plea overruled or waived by answer. An answer overrules a jilea to the same matter.''^ Where the,.' -"1 Barbour, Ch. Pr. 129; Waters v. Glanville, Gilb. 184. -15 Bolton V. Gardner, 3 Paige (N. Y.) 273; Drew v. Drew, 2 Ves. & B. 159. See Heartt v. Corning, 3 Paige (N. Y.) 566. JO Andrews v. Brown, 3 Cush. (Mass.) 130. *7 Heartt v. Corning, 3 Paige (N. Y.) 566; 1 Barbour, Ch. Pr. 129. <>* West Portland Homestead Ass'n v. Lownsdale, 17 Fed. 205 ; Con- over V. Wright, 6 N. J. Eq.-613; Bloodgood v. Kane, 8 Cow. (N. Y.) 360. JO Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339; Chapln v. Cole- man, 11 Pick. (Mass.) 331. 5" McDonald v. Salem Capital Flour-Mills Co., 31 Fed. 577. 51 Cottington v. Fletcher, 2 Atk. 155; Bank of Maryland v. Dugan, 2 Bland (Md.) 254; Clark v. Saginaw City Bank, Har. (Mich.) 240; Bol- ton V, Gardner, 3 Paige (N. Y.) 273; Hudson v. Randolph, 23 U. S. App. 681, 66 Fed. 216; Grant v. Phoenix Life Ins. Co., 121 U. S. 105; National Hollow Brake Beam Co. v., Interchangeable Brake Beam Co., 83 Fed. 26. (282) Ch. 12] PLEAS. g 248 answer includes more than is necessary for the sxipport of the plea, it overrules the plea.^V If an answer commences as an ; answer to the whole bill, it will overrule a plea to any part of the hill, although the defendant did not in fact answer that part of the bill which is covered by the plea. ^5'- § 248. Frame of plea. ■^ The plea should be entitled in the cause^^/^lie title must! agree with that of the cause at the time when the bill was tiled, f A defendant is not allowed to alter or correct the name of the i complainant or defendant, and, if his own name is misspelled in | the bill, the title of his plea must agree with that of the bill/" The correction should be made in the heading/thus : "The plea of j the above-named defendant, John Jones (in the bill by mistake I called William Jones). "°>^ Where a plea is accompanied liy an : answer, it must be headed "The plea and answer," or "The joint plea and answer," or "The joint and several plea and answer," according to the circumstances.^^ A plea, like a demurrer, is introdiiced by a protestation against the confession of the truth of any matter contained in 'the bill. It next states how much of the bill it is intended to cover, and what part in particular ; and this must be clearly and distinctly shown. °'' Therefore, a j^lea "to such parts of the bill as are not answered" will be overruled as too general."'' Where a plea is to the whole of 5^ Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339; Corlies v. Cor- lies' Ex'rs, 23 N. J. Bq. 197; Dakln v. Union Pac. Ry. Co., 5 Fed. 665. 33 Leacraft v. Demprey, 4 Paige (N. Y.) 124; Summers v. Murray, 2 Edw. Ch. (N. Y.) 205; Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080. For practice in federal courts, see United States Equity Rule 37; Grant v. Phoenix Life Ins. Co., 121 U. S. 105; Mercantile Trust Co. v. Mis- souri, K. & T. Ry. Co., 84 Fed. 379. A plea is abandoned by the filing of an answer, and a hearing, by consent of all the parties. Miller v. Perks, 63 111. App. 140. 54 1 Daniell, Ch. PL & Pr. (4th Ed.) 681. ss 1 Barbour, Ch. Pr. 115. 50 1 Barbour, Ch. Pr. 115; Mitford, Eq. PI. 294, 300; Van Hook v. Whit- lock, 3 Paige (N. Y.) 409. " Mitford, Eq. PL 294; 1 Barbour, Ch. Pr. 115; Anonymous, 3 Atk. 70. (283) § 249 EQUITY PLEADING AND PRACTICE. [Ch. 12 the relief sought by the bill, but it is necessary that the defend- ant should support his plea by an answer, the plea should not extend to the whole bill, but should be in the- form of a plea to all the relief, and all the discovery sought by the bill, ex- cept certain parts of the discovery which are to be answered.''^ The matter relied upon as an objection to the suit or bill gen- erally follows, accompanied by such averments as are necessary to support it.°-^ AVliere the plea is of matter which shows an imperfection in the frame of the suit, it should jDoint out in what that imperfection consists/' as, for example, if a plea is for want of j^arties, it must not only show that there is a de- ficiency of parlies, but should point out who are the parties that are wanting.*"* /The plea coumionly concludes with a repeti- tion that lhe matters so offered are relied upon as an objection or bar to the siul^n' so much of it as the plea extends to, and pi;a^s the judgment jjf the court whether the defemlant ought ti_> be compelled further to answer the bill, or such ])art of it as is thus pleaded to."J«^ When the plea is accomj^anied by an answer, the answer must follow the conclusion of the plea. / If the answer is merely to support the plea, it is stated to be for that purpose, not waiving lhe plea. If the jDlea is to part of the bill only, aiul thci'e is an answer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea."- § 249. Signing and swearing to a plea. -'- .V pjea must be sigiied by counsel, except when taken under a commission, in which case it is lielil unnecessary."" AVliere pleas are not to lie sv.-orn to, they need not be signed by the s8 1 Barbour, Ch. Pr. 116; Portarlington v. Soulby, 6 Sim. 35i5. sol Barbour, Ch. Pr. 116; Mitford, Bq. PI. 300. 00 1 Barbour, Ch. Pr. 116; Merrewether v. Mellish, 13 Ves. 438. «i Mitford, Ea. PL 300; 1 Barbour, Ch. Pr. 116. '■>^ 1 Barbour, Ch. Pr. 117; Mitford, Eq. PI. 300; Leacraft v. Demprey, 4 Paige (N. Y.) 124. "3 1 Barbour, Ch. Pr. 117; Simes v. Smith, 4 Madd. 366. (-284) Ch. 13] PLEAS. § 249 defendant, tlic signature of eonnsel being sufficient,. -^leas of/ matters (/( pais must be upon the oath of the defendanty-'but £leas lu the jurj^iction of the court, or to the disability of the jierson of the complainanT, or pleas in bar of any matter of rec- ord, I'lr of matters recorded, or as of re'cord in the court itself, or in any other court, need nat be under oalli.''' If tliere are necessary averments of matters iit pais supporting a jdea of rec- ord, ir must be on oath.'''' A plea of the statute of limitations, or of any other statute which Requires averments to bring the defendant's case within its operattion, must be upon oath.®" /In all eases where a plea is accompanied by an answer, it must I be put in upon oath.'^y' A plea must be verified \)\ oath, al- t though the complainant has expressly waived an answer from / the defendant on oath.*/'' If a pleaniecessary \o be verified is n,ot swoni to, the complainant may apply for an order to set it aside, or to have it taken from the files, but he cannot make the objecrion upon the argument of the plea.'^" A plea need not "1 Smith, Ch. Pr. 231; Story, Eq. PI. § 696; Dunn v. Keegln, 4 111, 292; 1 Barbour, Ch. Pr. 117; Urlin v. Hudson, 1 Vern. 332; Graham's Heirs V. Nelson, 5 Humph. (Tenn.) 605; Carroll v. Waring, 3 Gill & J. (Md.) 491; Harrison v. Farrington, 38 N. J. Eq. 359. (i= Mitford. Eq. PI. 301; Wall v. Stubbs, 2 Ves. & B. 354. «(i 1 Barbour, Ch. Pr. 118. A plea resting upon a statute alone is a plea of a matter of record; but if it be necessary to couple any mere matter of fact with a statute in order to constitute a complete defense, then the plea must be on oath, because the defense would be unavail- able without an averment, of such fact. Wall v. Stubbs, 2 "Ves. & B. 354. Where the lapse of time appears upon the face of the bill without any allegation of an acknowledgment, payment, or other circumstance which can take the case out of the statute, the defendant may take advantage of the statute either by a plea or by a demurrer; and such plea or demurrer need not be sworn to, because the oath of the defend- ant cannot be required to verify facts which the complainant himself has stated to be true. Carroll v. Waring, 3 Gill & J. (Md.) 491. <5T 1 Barbour, Ch. Pr. 118; Jefferson v. Dawson, 2 Ch. Cas. 208; Wall V. Stubbs, 2 Ves. & B. 354. es 1 Barbour, Ch. Pr. 118; Heartt v. Corning, 3 Paige (N. Y.) 566. An "impure" plea must be sworn to. Anderson v. Walton, 35 Ga. 202. 89 1 Barbour, Ch. Pr. 118; Heartt v. Corning, 3 Paige (N. Y.) 566; Wall V. Stubbs, 2 Ves. & B. 354; Freidlander v. Pollock, 5 Cold. (Tenn.) 490; Harrison v. Farrington, 38 N. J. Eq. 359. See, also, Bassett v. (2S5) §250 EQUITY PLEADING AND PRACTICE. [Ch. 12 be verified before tbe court where the suit is pending. It may- be sworn to before any officer in the state authorized to admin- ister oaths, and, if the defendant is a nonresident, before any ofiicer of any state who woiild be authorized by the laws of the forum to administer oatlis in legal proceedings.^" An afiidavit to a plea may be amended by leave of court. '^■'^ § 250. Form of plea. [Title of court and cause.] The plea of the above-named defendant, C. D., to the bill of com- plaint of the above-named complainant, A. B. : This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the complainant's said bill men- tioned to be true, in such manner and form as the same are therein and thereby set forth and alleged, does plead thereunto, and for plea says that: [Here state the subject-matter of the plea, and conclude as follows:] All which matters and things this defendant avers to be true, and pleads the same to the whole of the said bill, and de- mands the judgment of this honorable court whether he ought to be compelled to make any answer to the said bill of complaint, and prays to be hence dismissed, with his reasonable costs in this behalf most wrongfully sustained. C. D., G. P., Defendant. Solicitor for Defendant, C. D. Salisbury Mfg. Co., 43 N. H. 249. It is said that a plea lacking the requisite afiSdavit may be disregarded. Central Nat. Bank of Balti- more V. Connecticut Mut. Life Ins. Co., 104 U. S. 54; Trower v. Bernard, 37 Fla. 226, 20 So. 241; Taylor v. Brown, 32 Fla. 334, 13 So. 957. An affidavit by a third person, who does not purport to be either agent or attorney of the defendant, that he is informed and believes that the plea is true, is not sufficient. Bank of Tennessee v. Jones, 1 Swan (Tenn.) 391. An affidavit that the facts in the plea are true, in sub- stance and in fact, complies with a rule that the affidavit must be posi- tive in form. Wrompelmeir v. Moses, 3 Baxt. (Tenn.) 470. 70 Carlisle v. Cowan, 85 Tenn. 170, 2 S. W. 26; Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080. United States Equity Rule 31 provides that no demurrer or plea shall be allowed to be iiled to any bill unless upon the certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay, and, if a plea, that it is true in point of fact. Where the requisite affidavit is attached, the corporate seal of a de- fendant corporation need not be affixed. Fayerweather v. Trustees of Hamilton College, 103 Fed. 546. 71 Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. 1080. (286) Ch. 12] PLEAS. § 251 state of , j I. ss. County of . \ C. D., being duly sworn, deposes and says that the matters set forth in the foregoing plea are true, in substance and in fact. C. D. Subscribed and sworn to before me, etc. § 251. Plea to part, and answer to residue, of bill. [Title of court and cause.] The plea of C. D., defendant, to part, and the answer of the same defendant to the residue, of the bill of complaint of A. B., complain- ant: This defendant, to all the relief sought by the said bill, and also to all the discovery thereby sought, except the discovery sought, or in respect of [so much of the said bill as prays that this defendant may answer, and set forth] whether, etc., [here the language of the inter- rogatories which it is necessary to answer must be introduced], does plead in bar, and for plea says [here follows matter of plea]. All which matters and things this defendant does aver to be true, and does plead the same in bar to the whole of the said bill, except such part of the discovery thereby sought as aforesaid; and this defendant humbly prays the judgment of this honorable court whether he ought to be com- pelled to make any further or other answer to so much of the said bill as is hereby pleaded to, and he prays to be hence dismissed, with his costs in this behalf most wrongfully sustained. And for answer to such parts of the said bill as are excepted, this defendant says that: [Here insert answer. ]■?-• 'i 251a. Form of plea supported by answer. The plea of A. B., defendant, to part, and his answer to the residue, of the bill of complaint of C. D., complainant: This defendant, by protestation, not acknowledging or confessing all or any of the matters or things in the said bill contained to be true in such sort, manner, and form as the same are therein and thereby al- leged, to so much of said bill as seeks to compel this defendant specif- ically to perform the agreement in the said bill mentioned to have been made and entered into between the said complainant and this defend- ant for sale by this defendant unto the complainant of a certain mes- suage or tenement in the bill mentioned, or as seeks to compel this de- fendant to execute a conveyance of such messuage and tenement unto '2 For forms of pleas, see Curtis, Eq. Free. 157-175; 3 Daniell, Ch. PI. & Pr. (4th Ed.) 2094-2108. (287) §252 EQUITY PLEADING AND PRACTICE. [Ch. 12 the said complainant, pursuant to any such agreement, or as seeks any other relief relating to such messuage and tenement, or as seeks any discovery from this defendant of and concerning any agreement made or entered into between the complainant and this defendant for sale by this defendant unto the said complainant of the said messuage and tenement, and not reduced into writing and signed by this defendant, or some person by him, this defendant, lawfully authorized, this de- fendant doth plead in bar, and for plea saith that by an act of parlia- ment made in the 29th year of his majesty. King Charles II., entitled "An act for prevention of frauds and perjuries," it was (among other things) enacted that, from and after the 24th of June, 1677, no action should be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or con- cerning them, unless the agreement upon which such action should be brought, or some memorandum or note thereof, should be In writing, and signed by the party charged therewith, or by some other person thereunto by him lawfully authorized, as by the said act may appear; and this defendant, for further plea, saith that neither he, this defend- ant, nor any person by him lawfully authorized, did ever sign any con- tract or agreement in writing for making and executing any sale or conveyance to the said complainant of the said messuage or tenement, or any part thereof, or any interest thereof, or to any such effect, or any memorandum or note in writing of any such agreement, all. which matters and things this defendant doth aver to be true, and is ready to prove as this honorable court shall award; and therefore he doth plead the same in bar to so much and such parts of the said bill as aforesaid, and humbly prays the judgment of this honorable court whether he shall be compelled to m.ake any further and other answer to so much and such parts of the said bill as are herein and hereby pleaded unto as aforesaid. And this defendant, not waiving his said plea, but wholly relying and insisting thereon, and in aid and support tliereof, for answer to the residue of the said complainant's bill not hereinbefore pleaded unto, or to as much thereof as he, this defendant, is advised it is in any v/ay material or necessary for liim to make an- swer unto, answering, saith, etc. § 252. Division of pleas. A plea may be either to the relief or to the discovery, or both. If it is a good plea to the relief, it will be good to the discovery. If, instead of a plea to the relief and discovery, the defendant I pnts in a plea to the relief only, he nmst give the discovery.^ r-i Cooper, Eq. PI. 235; Mitford, Eq. PI. 218; Story, Eq. PI. § 704; King V. Heming, 9 Sim. 59: 1 Daniell, Ch. PI. & Pr. (4th Ed.) 625; Chapin v. Coleman, 11 Pick. (Mass.) 331; Welford v. Liddel, 2 Ves. Sr, 400; Baillie V. Sibbald, 15 Ves. 185. (I'SS) Ch. 12] PLEAS. S 255 § 253. Division of pleas to bills for relief. Pleas to relief are divided into four classes: (1) Pleas to the jurisdiction ; (2) pleas to the person ; ( 3) pleas to the frame or form of the bill; (4) pleas in bar to the bill.^"' § 254. Declinatory, dilatory, and peremptory pleas. Mr. Justice Story deems pleas to be susceptible of the same division as were exceptions in the Koman law : ( 1 ) Declina- tory, corresponding to pleas to the jurisdiction; (2) dilatory, corresponding to pleas to the person ; and ( 3 ) peremptory, cor- responding to pleas in bar.^ All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement ; and therefore, in general, the objections founded thereon must be taken ante litem contesta- tam, by plea, and are not available by way of answer or at the hearing. And it has been said that pleas of these several kinds may be successively pleaded, one after another, in their proper order, — that is to say, first, declinatory pleas; secondly, dila- tory jjleas : and, thirdly, pleas in bar. For it has been said that although no man shall be permitted to plead two dilatories at several limes, nor several bars, because he may plead them all at once, >-et, after a plea to the jurisdiction, he may be admit- ted to plead in bar, because it is consistent with those pleas to plead in bar at the same time."^ § 255. Pleas to the jurisdiction. I'leas to the jurisdiction are arranged under four heads : (l) That the subject-matter of the bill is not within the cognizance! i 'i Story, Eq. PI. § 705; Beames, Pleas in Eq. 53. Some of the earlier writers divide pleas into pleas in abatement and pleas in bar, but it is said that no practical consequence results from such distinction. 1 Daniell, Ch. PI. & Pr. (4th Ed.) 626. For classifications by other writ- ers, see Mitford, Eq. PI. 219; Cooper, Eq. PI. 236; Adams, Eq. (8th Ed.) 336; United States v. Peralta, 99 Fed. 618. T-. Story, Eq. PI. §§ 707, 708; Amberg v. Nachtway, 92 111. App. 608; ' Beames, Pleas in Eq. 55-60; Anonymous, Mos. 207; Cooper, Eq. PI. 226. 227, 237; Saltus v. Tobias, 7 Johns. Ch. (N. Y.) 214. (280) Equity— 19 § 256 EQUITY PLEADING AND PRACTICE. [Ch. 12 of any municipal court of justice; (2) that it is not within the jurisdiction of a court of equity; (3) that some other court of equity is invested with the proper jurisdiction; (4) that some other court possesses proper jurisdiction. ''J'' As heretofore stat- ed, when these objections appear on the face of the bill, they may be taken by demurrer. The nature of these objections has been considered in connection with the subject of demurrers.'^'' § 256. Pleas to the person. jj Pleas to the person are divided into pleas -to the person of the ^iiiomplainant, and pleas to the person of the defendant. Pleas to the person of the complainant include: (1) Of outlawry; (2) of excommunication; (3) of popish recusant convict; (4) of attainder; (5) of alienage; (6) of infancy; (7) of cov- erture; (8) of idiocy or lunacy; (9) of bankruptcy or in- solvency; (10) of want of the character in which the complain- / ant sues.''® ' The first three of the pleas to the person of the complainant are generally unknown in America, and are of very rare occur- rence in England in modern times. The fourth is also of rare occurrence. ^^ The grounds of these pleas were referred to in connection with the subject of demurrers, by which the same objections may be taken when they ajDpear on the face of the bill.«» Pleas to the person of the defendant are more limited than 76 story, Eq. PI. §§ 710-721; Mltford, Eq. PI. 222-226; Cooper, Eq. PI. 237-243. T7 See supra, § 208 et seq. Where there is a defect in the serv- ice of process, the objection, under certain circumstances, may be raised by plea. Supra, § 136; Beach, Mod. Eq. Pr. § 301; Foster, Fed. Pr. § 126; Larned v. Griffin, 12 Fed. 590; William v. Empire Transportation Co., 1 N. J. Law J. 315. T8 Story, Eq. PI. § 722; Mitford, Eq. PI. 226; Cooper, Eq. PI. 243, T9 Story, Eq. PI. § 723. 80 See supra, § 209. See, also, Mitford, Eq. PL 226-229; Cooper, Eq. PI. 243-245; Beames, Pleas in Eq. 100-109; Nicholas v. Murray, 5 Sawy. 320, Fed. Cas. No. 10,223; Dental Vulcanite Co. v. Wetherbee, 2 Cliff. 555, Fed. Cas. No. 3,810; Kittredge v. Claremont Bank, 3 Story, 590, Fed. Cas. No. 7,858. (290) Ch. 12] PLEAS. ;, 257 those last considered; for it is a rule at law that persons who are disabled to sue cannot plead their own disabilities when sued. This rule is epually applicable, in equity, in all cases where the suit seeks the performance of a duty by the defend- ant. /Such a rule does not extend to cases where the disqualifica- ( tion is only partial, and does not apply to cases where the pro- \ ceeding is in rem, and the disability is of such a nattire that, 1 besides the personal disqualification which it imposes, the inter- | est in the defendant's property which is the subject of the suit ' has become vested in another, y^ It will be a good plea that the defendant is not the person that he is alleged to be, or that he does not sustain the character which he is alleged to bear in the bill, such as heir, executor, or administrator.^^ If the defend- ant has not that interest in the subject of a suit which can make him liable to the demands of the complainant, and the bill, alleging that he has or claims an interest, avoids a demurrer, he may plead the matter necessary to show that he has ,no inter- est, if the case is not such that by a general disclaimer he can satisfy the suit.*^ § 257. Pleas to the^ill or frame thereof. /^ Such pleas differ from pleas to the jurisdiction, by not dis- puting the original power of the court to take cognizance of the particular matter ; from pleas to the person, by admitting the complainant's ability to sue, and the defendant's liability to be sued, although they object to the suit as framed, or contend that it is unnecessary.^from pleas in bar, because, while not object- ing to the validity of the right made the subject of the suit, it is contended that the right ought not to be canvassed on the ex- isting record. /Pleas of this nature are divided into: (1) Plea of another suit depending in a court of equity for the 811 Daniell, Ch. PI. & Pr. (4th Ed.) 631; Turner v. Robinson, 1 Sim. & S. 3. See Dudgeon v. Watson, 23 Fed. 161. 82Mitford, Eq. PL 234; Story, Eq. PI. § 732; 1 Daniell, Ch. PL & Pr. (4tli Ed.) 631; Burger v. Potter, 32 111. 66. 83 Cooper, Eq. PL 250; Storj, Bq. PI. § 734; 1 Daniell, Ch. PL & Pr. (4th Ed.) 632; Mitford, Eq. PL 235. (291) § 258 EQUITY PLEADING AND PRACTICE. [Ch. 12 same matter; (2) plea of want of proper parties; (3) plea of multiplicity of suits; (4) plea of multifariousness.**/ § 258. Plea of pendency of another suit. Such a plea should set forth with certainty the commence- ment of the former suit, its general nature, character, and ob- jects, and the relief prayed. It should aver, and so the fact should be, that the second suit is fop the same subject-matter as the iirst.^that the same issue is joined iu the former suit as in the suit now before the court, and that the subject-matter is the same, and that the proceedings in the former suit were for the same purpose; that there have been proceedings in the suit, such as an appearance, or jirocess requiring an appearance, at least; that the former snit is still depending.*^ The plea can Si Story, Eq. PI. §.735; Beames, Pleas in Eq. 134-158. ssMitford, Eq. PI. 246; Story, Eq. PI. §§ 736-738; Brooke v. Phillips, 6 Phila. (Pa.) 392; Bank of Michigan v. Williams, Har. (Mich.) 219; Ma- cey V. Childress, 2 Tenn. Ch. 23; Grilling v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910. See Hessenbruch v. Markle, 194 Pa. 581, 45 Atl. 669. See post, § 304, forgetting up objection by answer. I ne pendency of an- other suit may be asserted by demurrer when the objection appears on the face of the bill. A plea of a former suit pending, under the Tennes- see practice, may be incorporated in an answer without the necessity of pleading it specially as matter in abatement; but when such special plea is relied on in the answer, and such matter is allowed to stand as a plea merely, all the certainty required in a plea must be contained in the answer. Connell v. Furgason, 5 Cold. (Tenn.) 401; High v. Batte, 10 Yerg. (Tenn.) 335. In Anonymous, Mos. 268, it was said that, though the objection of another suit pending must be taken by plea in the court of exchequer, it might be taken by motion in the court of chancery. Lord Eldon said, in Murray v. Shadwell, 17 Ves. 353, that such statement was unsupported, and that the regular way of raising the objection was by plea. Battel] v. Matot, 58 Vt. 271, 5 Atl. 479. Where two suits are brought in the name of an infant, it is a motion of course to obtain a reference, on the statement of counsel that botn suits are for the same purpose, to see which of them is most for the infant's benefit. Sullivan v. Sullivan, 2 Mer. 40; Battell v. Matot, 58 Vt.. 271, 5 Atl. 479. Defendant may state the pendency and object of the former suit, and aver that the present suit was brought for the same matters; or he may omit the averment that the suits are for the same subject-matters, if he states facts sufficient to show that they are so. Suydam v. Johnson, 16 N. J. Eq. 112; McEwen v. Broadhead. (292) Ch. 12] PLEAS. § 2S8 only be in bar of a suit depending in the same or some otber court of equity.^^ The remedy where there is an action at law pending for the same matter is by application that the complain- ant elect in which suit he will proceed.^'^^A plea, in a domestic forum, of another suit pending, will not be good if the suit is pending in a court in another country.®^ .^The states, in this 11 N. J. Eq. 129; Grifflng v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910. "In Watson v. Jones, 13 Wall. (U. S.) 715, Mr. Justice Mil- ler, speaking for the court, says: 'When the pendency of such a suit is set up to defeat another, the case must be the same. There must be the same parties, or at least such as represent the same interest. There must be the same rights asserted, and the same re- lief prayed for. This relief must be founded on the same facts, and the title or essential basis of the relief sought must be the same.' It is also held 'that the true test of the sufficiency of a plea of "other suit pending" in another forum was the legal efficacy of the first suit, when finally disposed of, as "the thing adjudged," regarding the matters at issue in the second suit.' The Haytian Republic, 154 U. S. 124." Rich- ardson v. Opelt, 60 Neb. 180, 82 N. W. 377. 88 1 Barbour, Ch. Pr. 126; Story, Eq. PI. § 742; Way v. Bragaw, 16 N. J. Eq. 213; Brooke v. Phillips, 6 Phila. (Pa.) 392; Howell v. Waldron, 2 Ch. Cas. 85. The general rule is that the pendency of a creditors' bill brought by one creditor in behalf of all creditors of the common debtor cannot be successfully pleaded in abatement or in bar of a subsequent bill brought by a different creditor in a different right, until after de- cree has been rendered in the former suit, under which all may come in and participate. 1 Daniell, Ch. PI. & Pr. (4th Ed.) 635, 794; Macy V. Childress, 2 Tenn, Ch. 23; Moore v. Holt, 3 Tenn. Ch. 141; Innes v. Lansing, 2 Paige (N. Y.) 583; Rogers v. King, 8 Paige (N. Y.) 210; Sweeney Mfg. Co. v. Goldberg, 66 111. App. 568. There is nothing to prevent other creditors from filing bills for the like purpose; and there is nothing more common than for several suits to exist together, and the court permits them to go on together until a decree in one of them is obtained, because it is possible, before the decree, that the litigating creditor may stop his suit. 1 Daniell, Ch. PI. & Pr. (4th Ed.) 794; Piedmont & A. Life Ins. Co. v. Maury, 75 Va. 508; Woodgate v. Field, 2 Hare. 211, 212. 87 See post, § 365; 1 Barbour, Ch. Pr. 126. After full answer put in, the defendant may apply for an order that the complainant make his election as to which court he will proceed before. Jones v. Strafford, 3 P. Wms. 90; Brooke v. Phillips, 6 Phila. (Pa.) 392; 1 Barbour, Ch. Pr. 126; Way v. Bragaw, 16 N. J. Eq. 213; Conover v. Conover, 1 N. J. Eq. 409. 88 Dillon V. Alvares, 4 Ves. 357; Radford v. Folsom, 14 Fed. 97; Stan- ton T. Embrey, 93 U. S. 548; Cole v. Flitcraft, 47 Md. 312; Insurance (293) § 258 "EQUITY PLEADING AND'PKACTICb: [ChT 12 sense, are regarded as foreign to one another.*^ It seems now settled that a plea of another suit pending in a state or fed- eral court in the same district cannot be pleaded to the prose- cution of a like suit in the other court.^" This rule is also ap- plied where the pendency of the prior suit is in another state or district from that in which the federal court is held.^j/ The first suit must be for the same matter as the second, but it is not requisite that the second suit should be for the whole mat- ter embraced by the first. The whole effect of the second suit should, however, be attainable in the first.®/ It is not neces- sary to a plea of this nature that the former suit should be be- tween precisely the same parties as the latter.®^ The usual Co. V. Brune's Assignee, 96 U. S. 588; Allen v. Watt, 69 111. 655; Hatcli V. Spofford, 22 Conn. 485; McJilton v. Love, 13 111. 486. 88 Goodall V. Marshall, 11 N. H. 99, 35 Am. Dec. 472; Seevers v. Clement, 28 Md'. 426; Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N. "W. 938. See, however, Moore v. Spiegel, 143 Mass. 413, 9 N. B. 827. 80 Gordon v. Gilfoil, 99 U. S. 168; Sharon v. Hill, 22 Fed. 28; Pierce V. Feagans, 39 Fed. 587; City of North Muskegon v. Clark, 62 Fed. 694; Seymour v. Bailey, 66 111. 288; Hollister v. Stewart, 111 N. Y. 644, 19 N. E. 782; Bunker Hill & Sullivan Mining & Concentrating Co. V. Shoshone Min. Co., 109 Fed. 504, reviewing the authorities. 81 Marshall v. Otto, 59 Fed. 249; Rawitzer v. Wyatt, 40 Fed. 609; Stanton v. Embrey, 93 XJ. S. 554. See, however, Ryan v. Seaboard & Roanoke R. Co., 89 Fed. 397; Marks v. Marks, 75 Fed. 321. It seems that the federal court will sometimes, as a matter of comity, stay pro- ceedings until the suit in the state court is disposed of, and then pro- ceed in the light of the results reached in the state court. Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Zimmerman v. Sorelle, 49 U. S. App. 387, 80 Fed. 417. For prac- tice where two suits are pending in two different federal courts, see Ryan v. Seaboard & Roanoke R. Co., 89 Fed. 397. 82 1 Barbour, Ch. Pr. 125, 126; Moor v. "Welsh Copper Co., 1 Eq. Abr. 39; Law v. Rigby, 4 Brown Ch. 60; Pickford v. Hunter, 5 Sim. 122; Massachusetts Mut. Life Ins. Co. v. Chicago & A. R. Co., 13 Fed. 857; Way V. Bragaw, 16 N. J. Eq. 217; Larter v. Canfield, 59 N. J. Bq. 461, 45 Atl. 616; Brooke v. Phillips, 6 Phila. (Pa.) 392. 83 1 Barbour, Ch. Pr. 126; Neve v. Weston, 3 Atk. 557. See, on ques- tion of identity of parties. Bent v. Maxwell Land Grant & Ry. Co., 3 Johns. (N. M.) 158, 3 Pac. 721; Crane v. Larsen, 15 Or. 345, 15 Pac. 326; Walsworth v. Johnson, 41 Cal. 61; Estes v. Worthington, 30 Fed. 465; Smith v. Blatchford, 2 Ind. 184, 52 Am. Dec. 504; Parsons v. Greenville & C. R. Co., 1 Hughes, 279, Fed. Gas. No. 10,776; Foreman (294) Ch. 12] PLEAS. g 259 course is not to reply to such a plea, or to have the plea set down, but to refer it to a master in chancery to look into the two suits, and report whether or not they are both for the same matter. If the master reports that the two suits are for the same matter, the plea is allowed; but if he reports otherwise, the plea is then overruled.®'' If the complainant sets down the plea to be argued, he admits the truth of the pleading, and it mvist be allowed, unless it be defective in form.®^/ Pendency of a ^vTit of error cannot be pleaded in abatement of another action in the same state, unless the writ of error operates as a superse- deas; nor even then if the writ of error was sued out after the commencement of the second action.®* / § 259. Plea for want of proper partly The detendanfmayobject to the bill for want of proper par- ties, if the defect is not apparent on the face of the bill, by pleading the matter necessary to show it. ^ Such a plea goes both to the discovery and relief, where relief is prayed, al- though the want of parties is no objection to a bill for discovery m^erely.^V' Shoe Co. V. F. M. Lewis & Co., 191 111. 155, 60 N. B. 971. A prior suit pending may be pleaded as a defense to a subsequent suit, but the con- verse of the proposition is not true. Renner v. Marshall, 1 Wheat. (U. S.) 215; Nicholl v. Mason, 21 Wend. (N. Y.) 339; Consolidated Coal Co. of St. Louis V. Oeltjen, 189 111. 85, 59 N. B. 600. In some cases the court will interfere to restrain a second suit brought against the de- fendant, without requiring him to plead the pendency of the former suit; as, for example, in two or more suits instituted on behalf of an infant for the same matter, or in case of creditors suing an executor or an administrator after a decree for an account at the suit of other creditors. 1 Barbour, Ch. Pr. 126; Battell v. Matot, 58 Vt. 271; Paxton V. Douglas, 8 Ves. 520. s*Mitford, Eq. PI. 247; Story, Eq. PI. § 743; Jones v. Segueira, 1 Phillips, 82; Grlffing v. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910; Battell v. Matot, 58 Vt. 271, 5 Atl. 479. osMitford, Eq. PL 247; Story, Eq. Fl. § 743; Cooper, Eq. PI. 275; Grif- fing V. A. A. Griffing Iron Co. (N. J. Eq.) 48 Atl. 910. 96McJilton V. Love, 13 111. 486; Hailman v. Buckmaster, 8 111. 498; Bank of United States v. Merchants' Bank of Baltimore, 7 Gill (Md.) 415; Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312; Prynn v. Edwards, 1 Ld. Raym. 47. 97Mitford, Eq. PI. 280; Story, Eq. PI. § 745; Conwell v. Watkins, 71 (295) § 264 EQUITY PLEADING AND PRACTICE. [Ch. 12 § 260. Plea of multiplicity of suits. This^ objection may be taken by plea.^^ § 261. Plea of multifariousness. I The objection of multifariousness is usually apparent on tbe jf ace of the bill, in which case it should be taken by- way of de- •murrer./ If the bill be so artfiiUy framed, or if, for some other reason, the objection does not appear on the face of the bill, it may be raised by plea.^^ § 262. Pleas in bar to a bill. Pleas in bar may be divided into three heads: (1) Pleas founded on some bar created by statute; (2) pleas founded on matter of record, or as of record, in some court; (3) pleas of matter purely in pois/as it is termed, — that is, upon matter of fact which is not of record.'"" § 263. Pleas founded on statutory bar. j Pleas of this sort are: (1) The statute of limitations; (2) the statute of frauds and perjuries; (3) any other statute, pub- (lic or private, which has created a barj^4) the plea of the stat- ute of fine and nonclaim, which has no existence in America.'"-' § 264. Plea of statute of limitations. This is generally a good bar to a suit in equity-. If rhe objec- 111. 489; Prentice v. Kimball, 19 111. 320; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427. This question has been heretofore considered under the head of parties to suits in equity. See supra, §§ 56, 217. 38 Story, Eq. PI. § 746; Stafford v. City of London, 1 P. Wms. 428; Beames, Pleas in Eq. 155, 156; Mitford, Bq. PI. 145, 221. 00 Story, Bq. PI. § 747; Benson v. Hadfield, 14 Hare, 32; Mitford, Eq. PI. 221. But see Halstead v. Shepard, 23 Ala. 558. See supra, §§ 107 et seq., 216. A misjoinder of complainants, if it do not appear on the face of the bill, may be pleaded. Plarding v. Cobb, 47 Miss. 599, citing 1 Story, Eq. PI. § 283. 100 Story, Eq. PI. § 749; Cooper, Eq. PI. 251; Beames, Pleas in Bq. 159. For classification by Lord Redesdale, see Mitford, Bq. PI. 236. 101 Story, Eq. PI. § 750; Cooper, Eq. PI. 251. (296) Ch. 12] PLEAS. g 265 tion appears on the face of the hill, it may he taken hv way of demurrer. If it does not so appear, then a plea is proper.^"- To render the statute of limitations available as a defense, it must he set up and relied on hy the pleadings.^"*/' It is not neces- sary that there should he any express reference to the statute in pleading it.^""* Where a \)iJl contains special matter in avoid- ance of the statute of limitations, a plea of the statute must con- j tain averments negativing such matters, and it is not sufficient ■ for the answer alone to negative such matters. ■'"V § 265. Statute of frauds. The statute for the prevention of frauds and perjuries may also be pleaded in bar of a suit, to which the provisions of the statute apply.^"" This plea extends to the discovery of the parol agreement as well as to the performance of it.-''''/' The statute j of frauds, to be made available as a defense, must be pleaded; l^ otherwise, it is waived. -"^"V It must be set iip by plea, demuv- 10^ Mitford, Eq. PI. 269; Cooper, Bq. PI. 251; Story, Eq. PI. §§ 751, 760; Conover v. Wright, 6 N. J. Eq. 613; Carroll v. Waring, 3 Gill & J. (Md.) 491; Goodrich v. Pendleton, 3 Johns. Ch. (N. Y.) 384. See post, § 300. 103 Borders v. Murphy, 78 111. 81; Ruckman v. Decker, 23 N. J. Eq. 283; Wilson v. Anthony, 19 Ark. 16; Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479; Hudsons v. Hudsons' Adm'r, 6 Munf. (Va.) 356. See, however, Haskell v. Bailey, 22 Conn. 569, holding that the rule that de- fendant must plead the statute of limitations, to avail himself of its benefits, does not apply to suits in chancery, and citing Story, Eq. PI. § 484, Hardy v. Reeves, 4 Ves. 479, Bulkley v. Bulkley, 2 Day (Conn.) 363. Where the statute does not create an absolute statutory bar by lapse of time, but only a presumption of payment arising from it, de- fendant must set up payment by plea or answer, to avail himself of that presumption. Fellers v. Lee, 2 Barb. (N. Y.) 488. 104 Harpending v. Reformed Protestant Dutch Church, 16 Pet. (U. S.) 455; Van Hook v. Whitlock, 7 Paige (N. Y.) 373. 105 Stearns v. Page, 1 Story, 204, Fed. Cas. No. 13,339. See Wright V. Le Claire, 4 G. Greene (Iowa) 420; McCloskey v. Barr, 38 Fed. 165. 100 Mitford, Eq. PI. 265; Cooper, Bq. PI. 255; Story, Eq. PI. § 761. See post, § 301. 107 Story, Bq. PI. § 763. 108 Irwin v. Dyke, 114 111. 302, 1 N. B. 913; Finucan v. Kendig, 109 HI. 198; Van Duyne v. Vreeland, 12 N. J. Bq. 142; Battel! v. Matot, 58 Vt. 271, 5 Atl. 479. (297) § 265 EQUITY PLEADING AND PRACTICE. [Ch. 12 rer, or unswer.^'^y The defendant cannot, by demurrer, rely on the statute of frauds, unless it clearly appears on the face of the bill that the agreement was within the statute^/ If he claims the benefit of the statute, where it does not so appear, he must insist upon it in his answer, or set it up by way of plea.^^** But ■^here a bill shows on its face that the contract was only oral, when it should be in writing, the objection of the statute of frauds may be made by demurrer. ^'^ J*' A bill is not demurrable because, in stating an agreement within the statute of frauds, it does not state whether or not the agreement is in writing. If it was verbal, that fact must be made to appear by plea or an- swer.^-' ^ A plea of the statute of frauds should expressly aver that the contract was not in writing.^l/ If the defendant, by his answer, admits the parol agreement, and insists on the benefit of the statute, he will be entitled to it, notwithstanding such admis- sion. If he does not insist on it, the court will, in a proper case, enforce the agreement on the ground that the defendant has re- nounced the benefit of the statute. ■^''* The statute may be plead- ed to a bill for the discovery and execution of a trust, with an averment that there is no declaration of the trust in writing. Circumstances of fraud may be alleged in the bill to avoid the 108 Douglass V. Snow, 77 Me. 91; Tarleton v. Vietes, 6 111. 470, 41 Am. Dec. 193; Angel v. Simpson, 85 Ala. 53, 3 So. 758; Lyon v. Cressman, 22 N. C. 268; Newton v. Swazey, 8 N. H. 13. 110 Switzer v. Sklles, 8 III. 529, 44 Am. Dec. 723; Strouse v. Biting, 110 Ala. 132, 20 So. 123; WMting v. Dyer, 21 R. I. 85, 41 Atl. 895. 111 Macey v. Cbildress, 2 Tenn. Ch. 438 ; Randall v. Howard, 2 Black (U. S.) 585; Monson v. Hutchin, 194 III. 433, 62 N. B. 788; Dick v. Dick, 172 111. 578, 50 N. E. 142; Dicken v. McKinley, 163 111. 318, 45 N. E. 134, 54 Am. St. Rec. 142. 112 Cranston v. Smith, 6 R. I. 231; Piedmont Land Improvement Co. V. Piedmont Foundry & Machine Co., 96 Ala. 389, 11 So. 332. The rule seems to he otherwise in Kentucky and some other states. See Smith V. Fah, 15 B. Mon. (Ky.) 443. iisMitford, Eq. PI. 266; Cooper, Eq. PI. 255; Bean v. Valle, 2 Mo. 126; Vaupell V. Woodward, 2 Sandf. Ch. (N. Y.) 143. ii-iMitford, Eq. PI. 267; Story, Bq. PI. § 763; Cozine v. Graham, 2 Paige (N. Y.) 177; Thompson v. Jamesson, 1 Cranch, C. C. 295, Fed. Cas. No. 13,960; Winn v. Albert, 2 Md. Ch. 269; Small v. Owings, 1 Md. Ch. 363; Walker v. Hill's Ex'rs, 21 N. J. Eq. 191. (298) Ch. 12] PLEAS. § 267 bar./ If so^ the plea ceases to be a pure plea, and tbe allegation must be met by an averment in the plea, denying the fraud, and the plea must be supported by an answer responsive to and denying the fraud charged.^ ^ § 266. Plea of other statutes. In the same manner, any other statute which creates a good bar to the demand of the complainant asserted in his bill may be pleaded, with the averments necessary to bring the case with- in the statute, and to avoid any equity which may be set up against the bar created by the statute. In the latter case there must also be an answer discovering and denying the matters of equity so set up to avoid a bar.-^ An instance of such a statutory bar is the statute of usury.'' ^* A plea setting up usury must dis- tinctly set forth the terms of the usurious agreement.-' -^^ § 267. Pleas of matter of record. An instance of such a plea is that of the plea of a judgment at law in a court of record./ If such judgment has finally de- cided the rights of the parties, it may, in general, be pleaded in bar of a bill in equity.^^* -''Such a plea will be equally good, not only to a bill founded upon the same original cause of ac- tion, but also to a bill to set aside a verdict and judgment as obtained against conscience, unless it contains some allegations of fact impeaching the verdict and judgment, which would avoid 115 story, Eq. PI. § 765; Mitford, Bq. PI. 268. It is held that, where a defendant has admitted a contract without setting up the statute, he will not be permitted to insist upon it in answer to the bill as amended. Battell v. Matot, 58 Vt. 271, 5 Atl. 479, citing Pomeroy, Cont. § 141; Spurrier v. Fitzgerald, 6 Ves. 548; Patterson v. Ware, 10 Ala. 444. 116 Cooper, Eq. PI. 258; Story, Eq. PI. § 769; Mitford, Eq. PI. 274; Beames, Pleas in Eq. 182, 183. iiTVroom V. Ditmas, 4 Paige (N. Y.) 526; Crane y. Homeopathic Mut Life Ins. Co., 27 N. J. Eq. 484; Goodwin v. Bishop, 145 111. 421, 34 N. E. 47. 118 Cooper, Eq. PI. 264; Story, Eq. PI. § 780 et seq. For form of such a plea, see Beames, Pleas in Eq. 341. (299), § 268 EQUITY PLEADING AND PRACTICE. [Ch. 12 it, and require an answer.'-^®^/ Upon a plea of a former decree, so mucli of the former bill and answer must be set forth as is necessary to show that the same point was then in issue^and it should aver that the allegations as to the title to relief against the defendant were substantially the same in the second suit as in the firsts ^^ A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new bill, if the dis- mission was upon the hearing, and not in terms directed to be without prejudice. But it is a bar only, where the court has determined that the complainant had no title to the relief sought by the bill ; and theref or§/an order dismissing a bill for want of prosecution is not a bar to another bill.-";^ § 268. Pleas of matter as of record. '"■' The sentence or judgment of a foreign court, which is deemed to be a court not of record, upon the same matter put in contro- versy by the bill, may be pleaded in bar. Such a plea will be good if such foreign court had jurisdiction,/With the like excep- tion of such circimistances as would invalidate a domestic judg- ment.-^^^ If any fraud or if other circumstances are shown in the bill as a ground for relief, the sentence or judgment cannot be pleaded by a pure plea, but must be set up by a plea sup- ported by a full answer to the specific charges in the bill.-'^*/ A decree of a court of equity is for most purposes, if not all, of as high dignity as a judgment in a court of lawy/and it may be a decree in the same court qr in another court of equity. Such a decree, if duly entered, may be pleaded in bar to the ii9Mitfor(i, Eq. PI. 253-255; Story, Eq. PI. § 781; Williams v. Lee, 3 Atk. 223. 120 Story, Eq. PI. § 791; Mitford, Eq. PI. 237; Marvin v. Hampton, 18 Fla. 131; Da Costa v. Dibble, 40 Fla. 418, 24 So. 911. 121 Mitford, Eq. PI. 253; Story, Eq. PI. § 793; 1 Barbour, Ch. Pr. 126, 127; Keller v. Stolzenbach, 20 Fed. 47; Gardner v. Raisbeck, 28 N. J. Eq. 71; Hughes v. United States, 4 Wall. (U. S.) 232; Garrett v. New York Transit & Terminal Co., 29 Fed. 129. See post, §§ 579, 694. 122 Mitford, Eq. PI. 255; Story, Eq. PI. § 783. 123 Mitford, Eq. PI. 256; Story, Eq. PI. §§ 784, 785; Ricardo v. Garoias, 12 Clark & F. 368. (;joo) Ch. 12] PLEAS. g 270 ne-^v s\iit, it it is STibstantially behveen the same parties and for the same subject-matter, and in its nature final, or afterwards made so by order of the court. ^^■*/' A plea setting up the record j of a former suit as a prior adjudication is not double because it embraces the judgments of the court of original jurisdictioii and of the appellate courts, buj/a bill setting iTp judgments in two separate suits is bad for duplicityA^^ § 269^ PleaS-iiLjiiatteia-BluidxJlLJlSiS:. Pleas of this sort go sometimes both to the discovery sought and to the relief prayed by the bill, or to some part of it ; some- times only to the discovery, or a part of the discovery ; and some- times only to the relief, or a part of the relief.-'^'' /'^Tlie prin- cipal, though not the only, pleas of this nature are: (1) A plea of release; (2) a plea of account stated; (3) a plea of a settled account; (-t) a plea of an award; (.">) a plea of purchase for a valuable consideration; (6) a plea of title in the defend- ant.12' /-■ § 270. Plea of release. If the complainant, or any person luider whom he claims, has released the subject of his demand, such fact may be pleaded in bar by a plea of release. If fraud, surprise, inadequacy of con- sideration, or other objection to the release is charged by the bill, the plea must meet these charges by averments in its body, i:;-iMitford, Bq. PI. 237-239; Story, Eq. PI. §§ 790, 791; Jones v. Smith, 13 111. 301; Matthews v. Roberts, 2 N. J. Eq. 338; Moor v. Welsh Copper Co., 1 Bq. Abr. 39. It Is sufficient in a plea to a bill in the name of a company and A. and B., alleging an assignment o£ the property of such company to A. and B., to aver that they are not the assignees of such company, and that by a decree of a court, remaining in full force, such assignment has been set aside, and the property placed in the hands of a receiver. Southern Life Ins. & Trust Co. v. Davis, 4 Edw. Ch. (N. Y.) 588, where are set forth a form of plea, and order allowing same and giving complaint leave to amend. 1^'' Payerweather v. Trustees of Hamilton College, 103 Fed. 546; Fayerweather Will Cases, 103 Fed. 548. ii'^ § 272. Plea of an award. An award may be pleaded to a bill to set aside the award | and open the account. It is good to the merits of the case, and I also to the discovery sought by the bill^' If fraud, partiality, ' or any other objection to the award is charged, such charge must be denied by the plea, and the plea must be supported by an an- swer showing the untruth of the charge.^*" /Where the bill is/ i34Mitford, Eq. PI. 259; Story, Eq. PI. § 798; Harrison v. Farrington, 38 N. J. Eq. 359. 135 Cooper, Eq. PI. 278; Story, Eq. PI. § 799. 136 Cooper, Eq. PI. 278; Story, Eq. PI. § 800. 13T Cooper, Eq. PI. 279; Mitford, Eq. PI. 259; Story, Eq. PI, § 802. 138 Taylor v. Duncanson, 20 D. C. 505. 139 Mitford, Eq. PI. 260; Story, Eq. PI. § 802; Driggs v. Garretson, 25 N. J. Eq. 178; Maddock, Ch. Pr. 101. A plea of ■ a stated account; must aver that the accounts settled all dealings between the parties, and that they were just and fair and due; and these averments must be sup- ported by an answer to the same effect. Schwarz v. Wendell, Har. (Mich.) 395; Roche v. Morgell, 2 Schoales & L. 726. 140 Story, Eq. PI. § 803; Mitford, Eq. PI. 260; Cooper, Eq. PI. 280, (303) § 273 EQUITY PLEADING AND PRACTICE. [Ch. 12 filed to set aside a submission and award, the defendant may rely on the award in defense without pleading it.i^ § 273. Plea of purchase for a valuable consideration. "—■if the defendant has aiT'equat'd'ffim" toThe protection of the court to defend his possession as the complainant has to the as- sistance of the court to assert his right, the court will not inter- fere on either side. This is true where the defendant claims under a purchase or mortgage for a valuable consideration with- out notice of the complainant's title, which he may plead in bar of the suit.^*-/ Such a plea must aver seisin, or pretended seisin, and possession, if the conveyance purported an immedi- ate transfer of possession at the timg/l)y the person who con- veyed or mortgaged to the defendant, when he executed the pur- chase or mortgage deed.^*^ /It nmst aver a conveyance, the con- sideration therefor, and the actual payment of it,^"*^ aud deny notice of the complainant's title or claim previous to the execu- tion of the deed and payment of the consideration.^' If par- ticular instances of notice or circumstances of fraud are charged, they must be denied as specially and particularly as charged. ^*^ Where the defendant answers in support of a plea of bona fide purchase, he should deny every allegation in the bill which, if admitted, could affect him with actual or constructive notice of the trusts and frauds charged in the bill; but if he have not personal knowledge of the facts/lie should deny notice of the trusts and frauds, and not their existence/for the latter denial 111 Tyler v. Stephens, 7 Ga. 278. 11- Mitford, Eq. PI. 274-281; Story, Eq. PL § 805; Payne v. Compton, 2 Younge & C. Bxch. 457; Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951. For consideration of plea of this nature, see United States v. California & Oregon Land Co., 148 U. S. 31. 113 Mitford, Eq. PI. 275; Story, Eq. PI. § 805. Ill Mitford, Eq. PI. 275; Story, Eq. PI. § 805; High v. Batte, 10 Yerg. (Tenn.) 335; Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594. 11= Mitford, Eq. PI. 275; Story, Eq. PI. § 806; High v. Batte, 10 Yerg. (Tenn.) 335; Woodruff v. Cook, 2 Edw. Ch. (N. Y.) 259; Lowry v. Tew, 3 Barb. Ch. (N. Y.) 408. The recital of such fact in the deed is insuf- ficient. High V. Batte, 10 Yerg. (Tenn.) 335. no Mitford, Eq. PI. 276; Story, Eq. PI. § 806; Cooper, Eq. PI. 283. (.304) Ch. 12] , PLEAS. § 274 would make "unnecessary and collateral issues.^*^ Tlie general denial, by a pleaj of all notice whatsoever, includes constructive as well as actual notice.^**/' A plea of purchase for a valuable consideration will protect a defendant from giving any answer to a title set up by the complainant. A plea of bare title only, without setting forth any consideration, will not be sufficient for that purpose. ^*y^ Care must be taken in framing a plea of this nature not to make an answer to any statements in the bill actually and properly covered by the plea; for in such a case, if the defendant answers at all as to the matters covered by the plea, he miist answer fully, and, if he puts in a general answer, he cannot protect himself in his answer from answering fully. ■'^* Where a bill contains no averments as to the payment of bona fide consideration by the defendant, and the defendant pleads a bona fide purchase, and answers in support of his plea, his an- swer should not repeat the averments in the plea as to payment, as such an answer would not be responsive to the bill.-'®^ § 274. A plea of title in the defendant. ./A mere volunteer may plead his title against a bill brought against him. /This plea is generally founded on a will or con- veyance, or on long, peaceable, and adverse possession. /^Thus, to a bill by an heir at law against a devisee, to secure posses- ■ 147 Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594. iisMitford, Bq. PL 276; Story, Eq. PL § 806; Pennington v. Beechey, 2 Sim. & S. 282. 148 Story, Eq. PL § 809; Mitford, Bq. PL 279. 150 Story, Bq. PL § 810. 151 Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594. Where a bill al- leged that defendant took a conveyance of certain property as security merely, and that the loan for -which it was given was usurious, and a defendant, by his plea, set up a full and absolute purchase, it was held that, to render the plea available as a defense, it must state dis- tinctly that there was an unconditional sale, and not a security for a 'loan or debt, and, by general averment, meet the allegations of the bill that it was a security, and not a sale; and the accompanying an- swer must meet the allegations minutely, with precise and detailed statements, so as to be entirely free from liability to exceptions. Stuart V. Warren, 1 N. Y. Leg. Obs. 293. Equity— 20. (305) § 276 PLEAS. [Ch. 12 sion of land, the devisee may plead his title under the will./ So, to a bill filed by an heir against a grantee of the ancestor, such grantee may plead in bar the conveyance.-' ^^ § 275. Plea of laches. / It is held that, vs'here the facts alleged in the bill disclose laches on the part of the complainant, the court will on that ground refuse relief on its own motion, even where the defense of laches is not pleaded.j^ In such jurisdictions it is held that laches need not be formally set up by plea or answer, and that it is a defense which may be made by plea, or by demurrer, ■or by answer, or presented by argument, either upon the pre- liminary or final hearing.^^*/ In other jurisdictions it is held that, to raise the question of laches, the defendant must plead the sam^the reason assigned being that the complainant ought to have notice of the proposed defense, so that he may amend his bill by inserting allegations accounting for the delay.^^^ § 276. Pleas to amended bill. Pleas to amended bills may be put in upon the same grounds 152 Cooper, Eq. PI. 288; Story, Eq. PI. §§ 811, 812; Mitford, Bq. PI. 263. 153 Richards v. Mackall, 124 U. S. 183 ; Sullivan v. Portland & K. R. Co., 94 U. S. 806; Leavenworth County Com'rs v. Chicago, R. I. & P. Ry. Co., 18 Fed. 209; Espy v. Comer, 76 Ala. 501; Haskell v. Bailey, 22 Conn. 569; Lakin v. Sierra Buttes Gold Min. Co., 25 Fed. 337. See post, § 300. 154 Woodmanse & Hewitt Mfg. Co. v. Williams, 37 TJ. S. App. 109, 68 Fed. 489; Pratt v. California Min. Co., 24 Fed. 869; McLaughlin v. People's Ry. Co., 21 Fed. 574; Richards v. Mackall, 124 U. S. 183; Badger v. Badger, 2 Wall. (U. S.) 87. 155 Simpson v. McPhail, 17 111. App. 499; Williams v. Rhodes, 81 111. 571; Dawson v. Vickery, 150 111. 398, 37 N. E. 910; Trustees of Schools V. Wright, 12 111. 432; Zeigler v. Hughes, 55 111. 288. In Illinois the court holds the rule that laches need not he pleaded to he applicahle in a case where the complainant undertakes, in advance of the defense, by his bill, to excuse himself for the apparent laches. Hall v. Fuller- ton, 69 111. 448; Simpson v. McPhail, 17 111. App. 502; Williams v. Rhodes, 81 111. 571. In Massachusetts, if a demurrer on the ground of laches is overruled, the defense may be raised by answer. Snow v. Boston Blank-Book Mfg. Co., 153 Mass. 456, 26 N. E. 1116. (306) Ch. 12] PLEAS. § 2// as pleas to original bills.-'^^ Where the complainant amends his bill, the defendant is entitled to amend his plea as to matter 1 of substance in any way he pleases.-^^V' Where the objection of want of parties is raised again in consequence of the amendment of the bill, a second plea on that ground has been allowed.^^^ If the defendant has answered the original bill, his an- swer may be used to counter-plead his plea to the amended bill ; and if, upon reading, it should appear that the facts stated upon the answer to the original bill would operate to avoid the de- fense made by the plea to the amended bill, the plea will be overruled.^ ^V If tlie defendant answer the original bill, audi the amendments do not vary the case made by it, he cannot plead ! to the amended bill.-^S^ An amendment of the bill after an- swer does not sanction, on the part of defendant, by way of plea, an allegation of personal disability in the complainant as having existed at the commencement of the suit. The answer itself would overrule such a plea.-^^^ 5 277. Time for filing plea. / The time for filing a plea is usually regulated by statute or'\ Tule of court.^^^ If a demurrer is overruled, and the defend- | ant is ruled to answer, the defendant may thereupon file his i plea to the bill.^^.^/ The filing of either a demurrer, plea, or an- swer is compliance with a rule to answer.^ ^Z Under a rule to j 156 1 Daniell, Ch. PI. & Pr. (4tli Ed.) 680, 681; American Bible Soc. V. Hague, 10 Paige (N. Y.) 549. 157 Bassett v. Salisbury Mfg. Co., 43 N. H. 249. 158 Henley v. Stone, 4 Beav. 389. But see Rawlins v. Dalton, 3 Younge 6 C. Exch. 447. 159 1 Daniell, Ch. PI. & Pr. (4th Ed.) 681; Noel v. Ward, 1 Madd. 322; Hildyard v. Cressy, 3 Atk. 303. leo Esdaile v. Mblyneux, 2 Colly. 636. 161 Keene v. Wheatley, 4 Phila. 157, Fed. Cas. No. 7,644. 162 For rule in Illinois, see Rev. St. 111. c. 22, § 16. 163 Dunn T. Keegin, 4 111. 292. 164 Bracken v. Kennedy, 4 111. 559; Dunn v. Keegin, 4 111. 292; Lam- hert V. Hyers, 27 111. App. 400; Kilgour v. Crawford, 51 111. 249. (307) § 279 EQUITY PLEADING AND PRACTICE. [Ch. 12 plead by a day fixed, it is sufficient to plead after the day so fixed, if it is done before default is asked.^^ § 278. Withdrawing plea. A defendant, not desiring to argue a plea whicK lias been set down for argument, may apply for leave to withdraw it.^^^ When a plea has been so informally pleaded that it would be difficult or impossible to amend it, the court has given the de- fendant leave to withdraw it and plead de novo}^'' § 279. Replication to the plea. / If the complainant, without argument, thinks the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replication, and proceed to examine I witnesses, as in the case of an answer, to disprove the facts upon which it is endeavored to be supported.^5^ The replication ad- mits the plea to be good, and its truth is the only matter in question./ The defendant must prove the facts it sets up. If he succeeds in so doing, the suit, so far as the plea extends, is barred. A replication puts in issue nothing except what is dis- 165 Lambert v. Hyers, 27 111. App. 400; Dunn v. Keegin, 4 111. 292. See Oliver v. Decatur, 4 Cranch, 0. C. 458, Fed. Cas. No. 10,494. A de- fendant who has been required to plead by a particular day cannot file a plea after such date without special leave of court. Flanders v. Whittaker, 13 111. 707, said to be against weight of authority in Lam- bert V. Hyers, 27 111. App. 400; Kilgour v. Crawford, 51 111. 249. See Dunn V. Keegin, 4 111. 292, expressing doubt when the time expires in vacation. It is in the discretion of the court to allow the plea of the statute of limitations to be put in after an answer on the merits; but where no excuse is given for not having made it at the proper time, and where the facts must have been within the knowledge of the defendant when he made his answer, and the limitation prescribed by the statute is a short one, the court may refuse to allow such plea to be filed at that stage of the cause. Bartles v. Gibson, 17 Fed. 293. 166 1 Barbour, Ch. Pr. 120; Greene v. Harris, 11 R. I. 5. 167 1 Barbour, Ch. Pr. 120; Watkins v. Stone, 2 Sim. & S. 560; Nob- kissen v. Hastings, 2 Ves. Jr. 84. icsMitford, Bq. PI. 301; 1 Barbour, Ch. Pr. 27; Peay v. Duncan, 20 Ark. 85; Hughes v. Blake, 6 Wheat. (tJ. S.) 453; Reavis v. Reavis, 101 Fed. 19. (308) Ch. 12] PLEAS. § 280 tinctly averred in the plea.^®^ The form of such replication is substantially the same as that to an answer, the word "plea" being substituted for "answer," and reference to the form of a replication to an answer is therefore made. § 280. ^etting;_down.^lfia_,for argunient. •^ As a general rule, no party can take a step in the cause until the plea is disposed of.^^ If the complainant conceives a plea to be defective in point of form or of substance, he may take the judgment of the court upon its sufiiciency by setting it down for argument. If the defendant is anxious to have the point determined, he may also take the same proceeding.^ '^^ /"The proper practice is to set the plea for hearing, instead of demurring to it.^JI- It is of great importance that the plea be 1S9 1 Barbour, Ch. Pr. 119; Harris v. Ingledew, 3 P. Wms. 95; Dan- els V. Taggart's Adm'r, 1 Gill & J. (Md.) 311; Ord v. Huddleston, 2 Dick- ens, 510; Flsli V. Miller, 5 Paige (N. Y.) 26; Birdseye v. Heilner, 27 Fed. 289; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; State of Ehode Island v. State of Massachusetts, 14 Pet. (TJ. S.) 251. For prac- tice in federal courts, see United States Equity Rule 33 ; Jones v. Hillis, 100 Fed. 355. 170 Beach, Mod. Eq. Pr. § 324; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 691; Vaughan v. Welsh, Mos. 210; Ewing v. Blight, 3 Wall. Jr. 139, Fed. Cas. No. 4,570. "iMitford, Bq. PI. 301; Story, Eq. PI. § 697; Flagg v. Bonnel, 10 N. J. Eq. 82; Moreton v. Harrison, 1 Bland (Md.) 493; Newton v. Thayer, 17 Pick. (Mass.) 129; Suydam v. Johnson, 16 N. J. Eq. 112; Hannum v. Mclnturf, 6 Baxt. (Tenn.) 225; Corlies v. Corlies' Ex'rs, 23 N. J. Eq. 197; Rearis v. Reavis, 101 Fed. 19. For federal practice, see United States Equity Rule 38; Electrolibration Co. v. Jackson, 52 Fed. 773. 172 Cochran v. McDowell, 15 111. 10; Lester v. Stevens, 29 111. 155. For efEect of demurring, see Klepper v. Powell, 6 Heisk. (Tenn.) 503; Zimmerman v. Sorelle, 49 U. S. App. 387, 80 Fed. 417. It has been said that, when a plea is set down for argument, the complainant cannot take any exception to its regularity or form. Foster, Fed. Pr. (3d Ed.) § 140; Kellner v. Mutual Life Ins. Co. of New York, 43 Fed. 623. It is said that a plea which alleges matters proper to be brought forward by an answer only is not a pleading recognized by the rules of practice, and will be stricken from the files. But if the matters alleged are a proper subject of defense by way of plea, then such pleading, although not good in substance, is an authorized plea, and all objections to it must be taken by setting it down for argument. Armengaud v. Caudert, 27 Fed. 247. (309) § 280 EQUITY PLEADING AND PRACTICE. [Ch. 12 set down for hearing. Where issue is taken upon the plea, and the truth of such plea is established by the proofs, the bill must be dismissed, as the court, in that stage of the proceed- ingsi, does not inquire as to the sufBciency of the matters pleaded as a defense to the suit.^^^ Upon the argument of a plea, every fact stated therein which is well pleaded must be considered as admitted for the purpose of determining whether the plea con- stitutes a suiBcient answer to the suit;^''* and^every fact stated in the bill and not denied by the averments in the plea and by the answer in support of the plea, must be taken as true.^^ If the plea is supported by an answer, upon the argument of the plea the answer may be read to counter-prove the plea ; an^Kif the defendant appears to not have sufficiently supported his plea by his answer, the plea must be overruled, or ordered to stand for an answer.^''® Where a defendant, having answered the original bill, puts in a plea to the amended bill, the complainant may read the answer to the original bill, to counter-prove the plea.-'^^y/^ The proceedings upon the argument of a plea are near- 1-3 Mitford, Eq. PL 302; 1 Barbour, Ch. Pr. 121; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Dows v. McMichael, 6 Paige (N. Y.) 139; Hughes v. Blake, 6 Wheat. (U. S.) 453; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Johnson v. Common Council of Dadeville, 27 Ala. 244, 28 So. 700; Tyson v. Decatur Land Co., 121 Ala. 414, 26 So. 507; Daniels v. Benedict, 97 Fed. 367. This is changed by United States Equity Rule 33. Pearce v. Rice, 142 U. S. 28; Elgin Wind Power & Pump Co. V. Nichols' Adm'rs, 24 U. S. App. 542, 65 Fed. 215. 174 1 Barbour, Ch. Pr. 121; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Melius v. Thompson, 1 Cliff. 125, Fed. Cas. No. 9,405; Kellner V. Mutual Life Ins. Co. of New York, 43 Fed. 623; McCloskey v. Barr, 38 Fed. 165. The question whether there is any equity in the case on the face of the bill cannot be raised on the argument of a plea. Van Hook V. Whitlock, 3 Paige (N. Y.) 409. 176 1 Barbour, Ch. Pr. 120; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; McCloskey v. Barr, 38 Fed. 165. 176 Hildyard v. Cressy, 3 Atk. 303 ; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. See 1 Barbour, Ch. Pr. 120. 177 1 Barbour, Ch. Pr. 120; Hildyard v. Cressy, 3 Atk. 303. Where a record in bar to relief is pleaded, defendant may be required to show it before complainant traverses the plea or sets it down for argument. In that case the whole plea depends upon the record, and the record can be definitely and readily shown. But this practice does not extend (310) Ch. 12=] PLEAS. § 281 ly tlie same, mutatis mutandis, as those upon the argument of a ♦ demiirrer.^^* Counsel for the defendant are first heard, then counsel for the complainant, after which counsel for the defend- ant may reply. ■''''^ § 281. Allowing the plea. / If, upon argument, a plea is allowed, it is thereby determined to he a full bar to so much of the bill as it covers, if the matter pleaded with the averments necessary to support it be true.^^* Thereupon, a complainant should file a replication to the plea.^^-' By failure to reply, not only the validity of the plea as a bar is admitted, but also the truth of the plea, and consequently the suit is at an end.^*^ If a plea is replied to, the complainant may go into evidence to disprove it. If he has alleged in his bill any matter which, if true, may avoid the plea, such as fraud or notice, he may support such allegations by proof. Where the plea introduces matter of a negative nature, such as denial of notice or fraud, it will be necessary for him, in case suffi- cient is not admitted by the answer in support of the plea, to show the existence of such notice or fraud, to go into evidence in support of the affirmative of the proposition.^^^ Where a to the pleading of a judgment or decree In the bill. Phelps v. Elliott, 26 Fed. 881. Where a plea of a former suit pending is set down for argument, the only question for the court to determine is whether the plea is good in point of form. If the plea is decided good, then the complainant may reply, or may take a reference to a master to ascer- tain the fact upon which the plea rests. McEwen v. Broadhead, 11 N. J. Eg. 129; Rowley v. Williams, 5 Wis. 151. 178 1 Barbour, Ch. Pr. 120; Stead's Bx'rs v. Course, 4 Cranch (U. S.) 403. "0 1 Daniell, Ch. PI. & Pr. (4th Ed.) 694. ISO 1 Barbour, Ch. Pr. 121; Bassett v. Salisbury Mfg. Co., 43 N. H. 253. isiHannum v. Mclnturf, 6 Baxt. (Tenn.) 225; Flagg v. Bonnel, 10 N. J. Bq. 82; United States v. Dalles Military Road Co., 140 U. S. 599; Wilson V. Mitchell (Fla.) 30 So. 703; Rouskulp v. Kershner, 49 Md. B16. 182 1 Barbour, Ch. Pr. 121. 183 Byre v. Dolphin, 2 Ball & B. 303; Saunders v. Leslie, 2 Ball & B. (311) § 283 EQUITY PLEADING AND PRACTICE. [Ch. 12 plea of a former suit pending is, on argument, decided to be good, the complainant may reply, if he desires ; or he may take a. reference to a master to ascertain the facts on which the plea rests.-^®* A plea allowed is considered as a full answer, and an injunction obtained until answer will be dissolred, upon appli- cation, as a matter of course.-'^^ i 282. Form of order allowing plea. [Title of court and cause.] The plea of tlie defendant, C. D., to the whole [or part] of the com- plainant's hill in this cause, coming on to be argued, and the solicitors for the respective parties having been heard thereupon, and the court, being fully advised in the premises, does hold the said plea to be good and sufficient, and It is ordered that the said plea do stand and be allowed. § 283. Saving benefit of plea to the hearing. If, upon the argument of a plea, the court considers that al- though, so far as then appears, the plea may be good, yet there may be matters disclosed in the evidence which, supposing the matter pleaded to be strictly true, would avoid it, the court may direct that the benefit of the plea shall be saved to the defendant at the hearing.^ ®^ The effect of an order for this purpose is to give the complainant an opportunity of replying and going into evidence withoiit overruling the plea.^^^'When such order 515. The usual course where the plea is allowed on argument, and consists of matter in pais, is to allow complainant to take issue on it, if he thinks it is untrue; but that course is not requisite where the matter of the plea was admitted in the bill, and consisted of matter of record, verified by the master's report. In such case no further in- quiry is necessary. Holmes v. Remsen, 7 Johns. Ch. (N. Y.) 286. 184 McBwen v. Broadhead, 11 N. J. Eq. 129. 185 Philips V. Langhorn, 1 Dickens, 148. 186 Mitford, Eq. PI. 303; Cooper, Eq. PI. 233; 1 Barbour, Ch. Pr. 122; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 251; Heartt v. Corning, 3 Paige (N. Y.) 566; Bassett v. Salisbury Mfg. Co., 43 N. H. 249; Reavis v. Reavis, 101 Fed. 19. See Dobson v. Peck Bros. & Co., 103 Fed. 904; Chisholm v. Johnson, 84 Fed. 384. 18T Cooth v. Jackson, 6 Ves. 12; Hancock v. Carlton, 6 Gray (Mass.) 39; Astley v. Fountaine, Finch, 4. (312) Ch. 12] PLEAS. § 284 is made, such part of the bill as is covered by the plea is not to be answered/^* and neither party recovers costs. ■'^^ § 284. Ordering plea to stand for answer. Upon argument, a plea may be ordered to stand for an an- swer. In such case it is determined that it contains matter which, if put in the form of an answer, would have constitu.ted a valid defense to some material part of the matters to which \ it is pleaded as a ba:^but that it is not a full defense to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered as a defense by way of plea, or that it is not properly supported by answer.^*"/ A plea set- \ ting up no valid defense to any part of the matter it professes to cover will not be permitted to stand for an answer./ If a ' plea to the whole bill, unaccompanied by an answer, is allowed to stand for an answer without reserving to complainant the right to except, it is to be deemed a full answer, though not necessarily a perfect answer.^^^ Where a plea is ordered to stand for an answer with liberty to except, or is accompanied by an answer, which will enable the complainant to except with- out special leave, the master, upon a reference of exceptions, must decide as to the sufficiency of the answer, considering the plea as a part thereof.^^V When it is not specified in the order / that the complainant may except, he will not be allowed to do / &o.i«»^ 188 1 Barbour, Ch. Pr. 122. is9Heartt v. Corning, 3 Paige (N. Y.) 566. 190 1 Barbour, Ch. Pr. 122; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Beall v. Blalce, 10 Ga. 449; Souzer v. De Meyer, 2 Paige (N. Y.) 574; Leacraft v. Demprey, 4 Paige (N. Y.) 124; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Reavis v. Reavis, 101 Fed. 19; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 251; Bell v. Wood- ward, 42 N. H. 193. 191 Mitford, Eq. PI. 303, 304; 1 Barbour, Ch. Pr. 122; Orcutt v. Orms, 3 Paige (N. Y.) 459. 102 1 Barbour, Ch. Pr. 122; Orcutt v. Orms, 3 Paige (N. Y.) 459. 193 1 Barbour, Ch. Pr. 123; Sellon v. Lewen, 3 P. Wms. 239. See, on ordering plea to stand for answer. Story, Eq. PL § 699; Hildyard v. Cressy, 3 Atk. 303; Mitford, Eq. PI. 303, 304; MoCormick v. Ghamber- (313) § 286 EQUITY PLEADING AND PRACTICE. [Ch. 12 § 285. Form of order that plea stand for an answer. [Title of court and cause.] The plea of the defendant, C. D., to the bill of complaint in this cause, having heretofore come on to be argued, and the solicitors for the respective parties having been heard thereupon, and the court be- ing fully advised in the premises. It is ordered that the said plea do stand for an answer, with liberty to the complainant to except thereto. § 286. Overruling plea. ■^ If, xipon argument, the court is of opinion that the plea can- not under any circumstances be made use of as a defense, it is overruled. ■'^^'' After a plea is overruled, the defendant may make a new defense.^^ Where a plea has been fully discussed and overruled on the merits, the same matter cannot be set up in the answer, though in conjunction with other matter, except by special permission of the court.-'^V'' ^^is^s a plea has been overruled for informality, or where it may be a good answer to part of the bill only, the same matter may, by special leave, be insisted on by answer in bar of the relief only, but not in bar of discovery. ■'y When the plea is set down for argument as to lin, 11 Paige (N. Y.) 545; Brien v. Marsh, 1 Tenn. Ch. 629; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Maitland v. Wilson, 3 Atk. 814; Kirby V. Taylor, 6 Johns. Ch. (N. Y.) 242; Pearse v. Dobinson, L. R. 1 Eq. 241, I'J^l Barbour, Ch. Pr. 123; Coster v. Murray, 7 Johns. Ch. (N. Y.) 167; Jarvis v. Palmer, 11 Paige (N. Y.) 650. 195 Tison V. Tison, 14 Ga. 167; Flagg v. Bonnel, 10 N. J. Eg. 82; Bush V. Bush, 1 Strob. Eq. (S. C.) 377. United States Equity Rule 34 re- quires that, on overruling a plea, defendant shall be allowed to an- swer. Wooster v. Blake, 7 Fed. 816. 196 Murray v. Coster, 4 Cow. (N. Y.) 617; Townsend v. Townsend, 2 Paige (N. Y.) 413; Tison v. Tison, 14 Ga. 167; Pentlarge v. Pentlarge, 22 Fed. 412; Sharon v. Hill, 26 Fed. 337. See, however, Goodrich v. Pendleton, 4 Johns. Ch. (N. Y.) 549; Coster v. Murray, 7 Johns. Ch. (N. Y.) 167; Ringgold v. Stone, 20 Ark. 526; Hoare v. Parker, 1 Cox, 228. 197 Murray v. Coster, 4 Cow. (N. Y.) 617; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Townsend v. Townsend, 2 Paige (N. Y.) 413. If the de- fendant has a substantial defense, which cannot avail him under his plea, by reason of inaccuracy in pleading, he may have full benefit of it in his answer. Matthews v. Roberts, 2 N. J. Eq. 338. (314) Ch. 12] PLEAS. § 289 its sufficiency, and the lower court holds the plea insufficient, the defendant may abide by his plea, and the court may thereupon enter a decree on the bill. In such a case the only question pre- sented on an appeal from the decree is as to the sufficiency of the plea."8 § 287. Form of order overruling plea. [Title of court and cause.] The plea of the defendant, C. D., to the bill of complaint in this cause, coming on to be argued before the court, and the solicitors for the respective parties having been heard thereupon, and the court, be- ing fully advised in the premises, does hold the said plea to be insuf- ficient, and therefore. Orders that the same be overruled, and that the said defendant, C. D., answer the bill of complaint herein within days from this date. § 288. Reference to a master. Pleas of a former decree, or of another suit pending, are gen-" erally referred to a master to inquire into the facts, and, if the master reports the plea true, the bill will be dismissed. The complainant may except to the master's report, and bring on the matter to be argued before the court.^®^' Though the usual prac- tice is, in case of a plea of another suit pending, to obtain an order of reference to a master to examine and ascertain whether the plea be true, yet, if set down for a hearing, it must be al- lowed, if not defective in form.^"" § 289. Form of order of reference. [Title of court and cause.] A plea having been filed in this cause averring that there is a former 198 Gage V. Harbert, 145 111. 530, 32 N. B. 543. ISO Story, Bq. PI. § 700; 1 Hoffman, Ch. Pr. 225; Emma Silver Min. Co. V. Bmma Silver Min. Co. of New York, 1 Fed. 39; Battell v. Matot, 68 Vt. 271, 5 Atl. 479; Morgan v. Morgan, 1 Atk. 53; Wild v. Hobson, 2 Ves. & B. 110; Tarleton v. Barnes, 2 Keen, 632. 200 Mitford, Eq. PI. 305; Rowley v. Williams, 5 Wis. 151. Where a for- mer suit pending is pleaded, complainant may take issue on the facts of the plea, or a reference to a master to ascertain whether both suits are for the same matter. McBwen v. Broadhead, 11 N. J. Eq. 129. (315) § 290 EQUITY PLEADING AND PRACTICE. [Ch. 12 suit depending in this court for the same matters as are involved in the present suit, thereupon, on motion of G. H., solicitor for thff defendant, A. B., it is or(Jered that it he referred to G. C, one of the masters in chancery of this court, to look into the hill and the said plea in this cause, and the bill in said plea mentioned to have heen exhibited by the complainant against the defendant, and the proceed- ings therein, and to certify whether the said bill, formerly exhibited, is for the same matters as the complainant's bill in this cause, and whether the same is now depending. § 290. Hearing on plea. / If, at the hearing, the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree as on a bill taken as confessed. ^"^ In such case the complainant will not lose the benefit of an answer if a discov- ery is necessarj^nd he may have an order to examine the de- fendant on interrogatories before a master as to the discovery sought by the bill.^"^ Where the complainant takes issue on the plea which, on the hearing, is not found to be true, he will be en- titled to only the same decree as if the bill had been taken as confessed, an^if the allegations of the bill do not entitle com- plainant to any relief whatever, the bill should be dismissed.3^ Where a plea contains several distinct averments or allegations of fact, all the allegations must be supported by the proof, or the plea will be overruled as false.^"*/" When a plea which meets and satisfies all the claims of the bill is put in issue, and the facts are found as therein stated, the bill must be dismissed, y^ 2011 Barbour, Ch. Pr. 125; Ferry v. Moore, 18 111. App. 135; Bell v. Simonds, 14 Mo. 100; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509. For a full consideration of this question, see Kennedy v. Creswell, 101 U. S., 641; Earn v. Metropolitan St. Ry. Co., 87 Fed. 528; Farley v. Kittson, 120 U. S. 303; Rouskulp v. Kershner, 49 Md. 516. 202Mitford, Eq. PI. 302; Dows v. McMichael, 2 Paige (N. Y.) 345; Kennedy v. Creswell, 101 U. S. 641; Brownsword v. Edwards, 2 Ves. Sr. 247. 203Hurlbut v. Britain, 2 Doug. (Mich.) 191. 204 1 Barbour, Ch. Pr. 125; Dows v. McMichael, 6 Paige (N. Y.) 139; Flagg V. Bonnel, 10 N. J. Eq. 82; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509. 205 Horn v. Detroit Dry Dock Co., 150 U. S. 610; Kennedy v. Cres- well, 101 U. S. 641; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Miller v. United States Casualty Co. (N. J. Eq.) 47 Atl. 509. (316) CHAPTEE XIII. ANSWERS. § 291. In general. An answer is the most usual defense to a bill. If the case is not such as to render a resort to a demurrer or plea advisable or necessary, or if the demurrer or plea is overruled, either wholly or in part, the defendant, unless he disclaims, must put in an answer to the bill.^ ' An answer generally controverts the facts stated in the bill, or some of them, and states other facts to show the rights of the defendant in the subject of the suit. But sometimes it admits the truth of the case made by the bill, and, ^either with or without stating additional facts, submits the questions arising upon the case thus made to the judgment of the court.^ - 'It is capable of embracing more cir- cumstances than a plea, and may therefore be used with greater propriety in cases where the defendant is not anxious to pre- vent a discovery, although the plea might be a complete bar. Where, by introducing additional circumstances, the complain- ant has an opportunity of showing his case in a more favorable light, the answer is the best mode of defense.^ Kesort is fre- quently had to an answer in order to set up a defense which would be proper in a plea, for the reason tha^less certainty and precision are required in an answer than a plea.* Defense 1 1 Barbour, Ch. Pr. 130; Story, Bq. PI. §§ 845, 846. 2 Story, Bq. PI. § 849; Mitford, Eq. PI. 15, 16. 3 1 Barbour, Cb. Pr. 130; Adams, Bq. 342; Story, Eq. PI. §§ 849, 851; Mitford, Eq. PI. 308, 309. 4McCabe v. Cooney, 2 Sandf. Ch. (N. Y.) 314; Loud v. Sergeant, 1 Edw. Ch. (N. Y.) 164. (317) § 293 EQUITY PLEADING AND PRACTICE. [Ch. 13 by plea and demurrer was originally unknown in equity plead- ing, and did not come into general use until comparatively re- cent times, and was borrowed from the common law.^ § 292. Twofold nature of answer. An answer in cases where relief is sought, properly consists of two parts, and serves a double purpose:/ First, that of answer- ing the case as made by the bill ; and, secondly, that of stating to the court the nature of the defense on which the defendant means to rely.®^ § 293. Answering complainant's case. The complainant is entitled to a discovery from the defend- ant of the matters charged in the bill, provided they are neces- sary or proper to ascertain facts material to the merits of the complainant's case, and to enable him to obtain a decree.^ If a defendant is called upon to make a discovery of the several charges contained in the bill, he must do so by a general answer to those charges, unless he can protect himself from it either by demurrer or plea or disclaimer./ If he answers, he must, in general, answer fully to all the charges of the bill not cov- ered by a demurrer or a plea or disclaimer.*^ It is not suffi- cient to answer fully the special interrogatories in the bill, unless they extend to all the facts stated or charged in the bill 5 Langdell, Eq. PI. § 92. 6 1 Barbour, Ch. Pr. 130; Story, Eq. PI. § 850; Mitford, Eq. PI. 15, 16; Langdell, Eq. PI. § 79; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; WMttemore v. Patten, 81 Fed. 527. ^ Cooper, Eq. PI. 313; Story, Eq. PI. § 845; Mitford, Eq. PI. 9, 307. 8 Mitford, Eq. PI. 308; 1 Barbour, Ch. Pr. 130; Story, Eq. PI. § 846; Champlin v. Champlin, 2 Edw. Ch. (N. Y.) 362; Robertson v. Bingley, 1 McCord, Eq. (S. C.) 333; Atterbury v. Knox, 8 Dana (Ky.) 282; Woot- ten v. Burch, 2 Md. Ch. 190; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Bank of Utloa v. Messereau, 7 Paige (N. Y.) 517; Swift v. Swift, 13 Ga. 140. He may answer in part, and by his answer state reasons why he should not be compelled to make further answer. Hunt v. Gookin, 6 Vt. 462; Fuller v. Knapp, 24 Fed. 100. See, however, Weis- man v. Heron Mln. Co., 57 N. C. 112. See post, § 294. (318) ■Ch. 13] ANSWERS. § 293 .to wliicli the complainant lias a right to require an answer.* /if any facts are stated in the bill which are material to the / •complainant's case, they must be answered, even though the ! complainant does not call the defendant's attention to them by - specific interrogatories.^" A defendant is not bound to answer , an interrogatory unless it is founded on some allegation or / charge in the bill^ It is suflicient, however, if the interroga- tory is founded upon a statement in the bill which is inserted therein merely as evidence in support of the main charges.^-' Where a fact is stated by way of recital, merely, without any interrogatory calling for an answer as to that fact, the defend- ant is not bound to admit or deny the same. If he admits the main fact charged in the bill, he need not answer to other mat- ters which are stated merely as evidence of that fact.-' 5' It is not sufficient for the defendant to state facts which, if true, would defeat the complainant's right to relief, but he must either , admit or deny the charges in the bill.-'^ ' Where a charge in the bill embraces several particulars, the answer Should be disjunct- ive, — denying or admitting each particular statement.-'* An 1 Bartour, Ch. Pr. 130, 131. 10 1 Barbour, Ch. Pr. 131; Hagthorp v. Hook's Adm'rs, 1 Gill & 3. 2Wyckoff V. Sniff en, 2 Bdw. Ch. (N. Y.) 581. 63 Woodruff V. Cook, 2 Edw. Ch. (N. Y.) 259; Grimstone v. Carter, 3 (326) Ch. 13] ANSWERS. g 301 § 300. Laches and statute of limitations. The defendant may set up the bar of the statute of limita- tions by answer,^" and the defense of laches may also be so pre- sented.^® § 301. Statute of frauds. If the defendant, by his answer, admits an agreement, but does not insist upon the defense of the statute of frauds, such de- fense is waived f but the defendant may admit the agreement, and plead the statute as a defense.^* It is held in many juris- Paige (N. Y.) 421; Minor v. Willoughby, 3 Minn. 225 (Gil. 154); Rorer Iron Co. V. Trout, 83 Va. 397, 2 S. E. 713. 54Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509, 62 Am. Dec. 402. Where a defendant, by plea or answer, claims protection as a bona fide purchaser of land without notice, he must state the deed of purchase, its date and contents, briefly, and that the vendor was seised in fee and in possession; the consideration must be stated, with a distinct aver- ment that it was bona fide and truly paid, independently of the recital in the deed; notice must be denied previous to and down to the time of paying the money and the delivery of the deed; and, if notice is specially charged, the denial must be of all circumstances referred to from which notice can be inferred, and the answer or plea must show how the grantor acquired title. Boone v. Chiles, 10 Pet. (XJ. S.) 177; Ledbetter v. Walker, 31 Ala. 175; Miller v. Fraley, 21 Ark. 22. See, also, Servis v. Beatty. 32 Miss. 52, where it is said that the same strictness is not required in case of an answer, and that the answer need not aver that the purchase money was all paid before notice of the defect in title. But it has been held that, when a purchaser for value without notice relies on this defense in his answer, he must set out the defense with all the certainty and requisites of a plea. High v. Batte, 10 Yerg. (Tenn.) 335. 55 Pierce v. McClellan, 93 111. 245; Highstone v. Franks, 93 Mich. 52, 52 N. W. 1015. See Chapin v. Coleman, 11 Pick. (Mass.) 331. 56 Harris v. Cornell, 80 111. 54; Snow v. Boston Blank-Book Mfg. Co., 153 Mass. 456, 26 N. B. 1116. See, also, supra, §§ 264, 275. Like strict- ness and particularity in pleading the statute of limitations are not required in an answer as in a plea. Van Hook v. Whitlock, 2 Edw. Ch. (N. Y.) 304. 57 Cozine v. Graham, 2 Paige (N. Y.) 177; Champlin v. Parish, 11 Paige (N. Y.) 405; Walker v. Hill's Ex'rs, 21 N. J. Eq. 191, 203. See supra, § 265. 58 Ashmore v. Evans, 11 N. J. Eq. 151. (327) § 303 EQUITY PLEADING AND PRACTICE. [Ch. 13 dictions that where the defendant, in his answer, denies that any such agreement as is alleged in the bill was made, his de- nial is as effective for letting in the defense as if the statute of frauds had been pleaded.^® But the rule is otherwise in some states, it being held that the statute must be specifically set up.®" The defense that an agreement, admitted to have been made, is not in writing, must be pleaded or set up in the answer as a fact, and distinctly put in issue. To aver that the contract is void in law, and that the defendant is not bound to perform the same, is insufficient.''^ § 302. Pleading a statute. ,, '' In setting up a defense under a public statute, it is sufficient / to state the facts which bring the case within the operation of : the statute. The statute need not be set forth.**' I 303. Usury. , A general charge of usury in the answer will amount to noth- / ing, unless facts are alleged showing wherein the usury con- \^_^sists.®^ 69 May V. Sloan, 101 U. S. 231; Busick v. Van Ness, 44 N. J. Eq. 82, 12 Atl. 609; Bonham v. Craig, 80 N. C. 224; Coles v. Bowne, 10 Paige (N. y.) 526. Where the complainant sets up an agreement which, by the statute ot frauds, would be invalid, the legal presumption is that it was in writing, unless the contrary is stated in the bill; and if the agreement as stated in the bill is denied by the an- swer, the complainant must produce legal evidence of the existence of such an agreement upon the hearing, which can only be done by pro- ducing a written agreement, duly executed according to the provisions of the statute. Coles v. Bowne, 10 Paige (N. Y.) 526, citing Cozine v. Graham, 2 Paige (N. Y.) 177; Ontario Bank v. Root, 3 Paige (N. Y.) 478. 60 Hull V. Peer, 27 111. 312. eiVaupell v. Woodward, 2 Sandf. Ch. (N. Y.) 143. 62Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Mitford, Eq. PI. 258; Beames, Pleas in Eq. 164. See supra, § 266. osMcKim v. Mason, 2 Md. Ch. 510; Mosier v. Norton, 83 111. 519; Jenkins v. Greenbaum, 95 111. 11; Hannas v. Hawk, 24 N. J. Eq. 124; Suydam v. Bartle, 10 Paige (N. Y.) 94. See, also, for answers assert- ing usury, New Orleans Gas Light & Banking Co. v. Dudley, 8 Paige Ch. 13] ANSWERS. § 304 § 304. Other defenses proper by answer. Where the subject-matter of the controversy is already in the possession of a court of competent jurisdiction, such defense may be taken by answer.®*/ An objection to a bill on the ground of want of equity may be so taken. ®^ A defense that the com- plainant has a perfect remedy at law must be presented by the pleadings. It may be presented by answer^' If not raised by the pleadings, it is not available at the hearing.*® If improper and untrue allegations are inserted in the bill for the purpose of preventing a demurrer, and to give the court apparent jurisdic- tion, the defendant may, by answer, deny those allegations, and insist that, as to the other matters in the bill, the complainant has a remedy at law ; and such an objection in the answer, while not a bar to discovery, will be a bar to the relief."^ An objection that there is an adequate remedy at law may be taken by answer after a demurrer on that ground has been overruled.®^ (N. Y.) 452; Watson v. Conkling, 24 N. J. Eq. 230; Curtis v. Hasten, 11 Paige (N. Y.) 15, asserting contract to be usurious under foreign law; Clarke v. Hastings, 9 Gray (Mass.) 64. For effect of evasive answers to bills charging usury, see Scott v. Hume, Litt. Sel. Cas. (Ky.) 378; Sallee v. Duncan, 7 T. B. Mon. (Ky.) 382. 64 Withers v. Denmead, 22 Md. 135; Macey v. Childress, 2 Tenn. Ch. 25. See, also, Brooks v. Delaplaine, 1 Md. Ch. 351; Albert v. Winn, 7 Gill (Md.) 446; Dunnock v. Dunnock, 3 Md. Ch. 141; High v. Batte, 10 Yerg. (Tenn.) 335; Connell v. Furgason, 5 Cold. (Tenn.) 401. That such defense should be asserted by plea, and not by answer, see Battell V. Matot, 58 Vt. 271, 5 Atl. 479; Murray v. Shadwell, 17 Ves. 353; Her- tell V. Van Buren, 3 Edw. Ch. (N. Y.) 20; Pierce v. Feagans, 39 Fed. 587. See supra, § 258; post, § 365. 65 Harley v. Sanitary District of Chicago, 54 111. App. 337. 66 Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 287, 8 Am. Dec. 562; Chicago Public Stock Exchange v. McClaughry, 148 111. 372, 36 N. E. 88; Creely v. Bay State Brick Co., 103 Mass. 514. 6T Fulton Bank v. New York & Sharon Canal Co., 4 Paige (N. Y.) 127. 68 Black V. Miller, 173 111. 489, 50 N. E. 1009; Anderson v. Olsen, 188 111. 502, 59 N. B. 239. By an act of congress it is provided that certain defenses may be set up in the answer in patent cases. Rev. St. U. S. § 4920; Hendy v. Golden State & Miners' Iron Works, 122 XJ. S. 370; Beach, Mod. Eq. Pr. § 342; Woodbury Patent Planing-Machine Co. v. Keith, 101 U. S. 479; Roemer v. Simon, 95 U. S. 214; Meyers v. Busby, 32 Fed. 670; Parks v. Booth, 102 U. S. 96; Saunders v. Allen, 53 Fed. 109. (329) § 306 EQUITY PLEADING AND PRACTICE. [Ch. 13 § 305. Matters occurring since the filing of the bill. I Facts that have occiirred since the filing of the bill, and be- fore the putting in of the answer, may be pleaded in such an- /swer.^ It is held that a defense of payment, even though made after bill filed, is properly made in the answer.^" But matter of defense which arises after the cause is at issue can- ! not be availed of by plea or answer, but must be asserted by a ' cross bill.'^^J ' § 306. Frame of answer. No particular form of words is necessary in an answer. It is sufiicient if it be not evasive, and if the substance is pre- served.^^ It is headed by a title as follows : "The answer of \ C. D., the defendant, to the bill of complaint of A. B., com- 1 plainant.'y If two or more defendants join in the answer, it is entitled: "The joint and several answer of C. D. and E. F., defendants," etc., unless it be the answer of a man and his wife, in which case, in the absence of statutory changes in the status of married women, it is called "the joint answer."^^ When any defect occurs in the title, so that it does not appear dis- tinctly whose answer it is, or to what bill it is an answer, it will be a ground for taking it off the files for irregularity.'^^ An I answer commences by reserving to the defendant all manner 60 Foster, Fed. Pr. § 144; Lyon v. Brooks, 2 Edw. Ch. (N. Y.) 110; 1 Danlell, Ch. PL & Pr. (4th Ed.) 713; Beach, Mod. Eq. Pr. § 331; Turner V. Rohinson, 1 Sim. & S. 3. 70 Raelble v. Goebbel (N. J. Eq.) 6 Atl. 21. 71 Mills V. Larrance, 186 111. 635, 58 N. B. 219; Dunham v. Dunham, 162 111. 589, 44 N. B. 841, 35 L. R. A. 70; Burdell v. Burdell, 2 Barb. (N. ' Y.) 473; Jenkins v. International Bank, 111 111. 470; Story, Eq. PI. § 393; Miller v. Penton, 11 Paige (N. Y.) 18; Ferris v. McClure, 36 111. 77. See, however, French v. Bellows Falls Sav. Institution, 67 111. App. 179. See supra, § 243; post, § 889. 72Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210. 73 1 Barbour, Ch. Pr. 140. 74 Griffiths V. Wood, 11 Ves. 62 ; Fulton County Sup'rs v. Mississippi & W. R. Co., 21 111. 338. See Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291. (330) Ch. 13] ANSWERS. g 307 of advantage which he might take by exception to the billj for the purpose of avoiding the conclusion that the defendant, sub- mitting to answer, must thereby be taken to admit everything which he does not controvert in express terms. /The answers to the several matters in the bill, together with such additional matter as may be necessary for the defendant to show to the court, either to qualify or add to the case made by the bill, or i to state a new case on his own behalf, next follow. This part j of the answer is succeeded by a general denial of that combina- ■ tion which is usually charged in the bill, and the answer con- cludes by a general traverse or denial of all the matters alleged in the bill. /An infant, being entitled to every exception to a bill, in a suit against him, without expressly saving it, the gen- eral saving at the commencement, the denial of combination, and the concluding traverse or denial are omitted in an an- swer by him.'^^ § 307. Signing the answer. By the settled practice of the court of chancery in England, [ the answer of the defendant must be signed by him, unless an \ order has been obtained to take it without signature. / Such order appears to have been necessary even where both parties consented, by their solicitors, that the answer might be put in without the signature of the defendant. To obtain such an order, where the defendant was abroad, the court required his written consent, or the evidence of a power from the defendant to his attorney or solicitor to put in an answer for him. Where an answer was put in without the defendant's signature, it was ordered to be taken off the files for irregularity ; and as there was no suggestion that there was any defense to the suit, the answer 76 Cooper, Eq. PI. 323; 1 Barbour, Ch. Pr. 140, 141; Mitford, Eq. PI. 314; Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631; Story, Eq. PI. §§ 869-873. Tliere is no federal equity rule requiring a certificate of counsel that an answer to the merits is well founded in law. McGorray V. O'Connor, 87 Fed. 586. For frame of answer upon removal to federal court of case brought in state court, see City of Detroit v. Detroit City Ry. Co., 55 Fed. 569. (331) § 308 EQUITY PLEADING AND PRACTICE. [Ch. 13 having evidently been put in for mere delay, it was made a part of the order that the complainant's bill be taken as con- fessed for want of an answer/® An answer must be signed by counsel, unless it is taken by commissioners, in the country, un- der the authority of a commission issued for that purpose. In the latter ease the signature of counsel is not required, the commissioners being responsible for the propriety of its con- tents, as it is supposed to be taken by them from the mouth of the defendant.''^ If the answer is not signed by counsel, it will be taken off the file, on application of the complainant ;'^* but an answer will not be taken from the files where the interest of the complainant may be prejudiced by the proceeding/^ Where a joint, or joint and several, answer is interposed on be- half of several defendants, it can be considered as the answer only of those who signed it, unless verification is waived.*" i 308. Swearing to answer. In the absence of statute or rule of court, it is a general rule that answers must be put in upon oath, but, by consent of the par- 76 Davis V. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631; Denison v. Bassford, 7 Paige (N. Y.) 370; Bayley v. De Walkiers, 10 Ves. 441; Rogers v. Cruger, 7 Johns. (N. Y.) 558; Van Valtenburg v. Alberry, 10 Iowa, 264; Kimball v. Ward, Walk. (Micb.) 439; Cook v. Dews, 2 Tenn. Cb. 496. Tbe court bas, under special circumstances, directed the clerk to receive an answer where It was not signed by tbe defendant; as where tbe defendant went abroad, forgetting or not having bad time to put in bis answer. v. Lake, 6 Ves. 171 ; Dumond v. Magee, 2 JxDhns. Ch. (N. Y.) 240. TTMitford, Eq. PI. 315; Story, Eq. PI. § 876; 1 Barbour, Ch. Pr. 142. But see May v. Williams, 17 Ala. 23. 78 Wall V. Stubbs, 2 Ves. & B. 358; Davis v. Davidson, 4 McLean, 136, -Fed. Cas. No. 3,631. 79 Bull V. Griffin, 2 Anstr. 563. so Ballard v. Kennedy, 34 Fla. 483, 16 So. 327. In some jurisdictions it is not necessary that an individual defendant should write bis own name to an answer. Fulton County Sup'rs v. Mississippi & W. R. Co., 21 111. 338; Hatch v. Bustaphieve, Clarke Ch. (N. Y.) 63. An answer is sufficiently signed by defendant where be subscribed and executed an affidavit verifying tbe same. Ballard v. Kennedy, 34 Fla. 483, 16 So. 327. (,",32) Ch. 13] ANSWERS. § 308 ties and an order of court first obtained, an answer may be taken ■without oath. /'If the parties agree, however, that the answer shall be put in in this manner, it is a matter of course for the court so to order. This order should be applied for by the defend- ant on filing the written consent of the complainant's solicitor. The order cannot be obtained without such consent. When ap- plied for by the complainant, the defendant's consent is not re- quired, unless he is abroad, in which case tlie court requires the consent of counsel, and to be satisfied that the party instructing the counsel to consent is properly authorized by the defendant.*^ The filing of a replication is evidence of a waiver of the oath of the defendant.^^ Statutes or rules of court in most jurisdictions authorize an express waiver of the oath by the complainant in his bill, and in such case an answer may be put in without oath, and will have no other or further force as evidence than the bill.*^/If the complainant waives an answer on the oath of the j defendant, it should be distinctly so stated in the bill.^y Accord- ing to the former English practice, it seems that the defend- ant was required to 'appear in person and swear to his answer before one of the masters in chancery.^^ The practice is gen- si Cooper, Eq. PI. 325; 1 Barbour, Ch. Pr. 142, 143; Fulton Bank v. Beacli, 6 Wend. (N. Y.) 36; Bayley v. De Walkiers, 10 Ves. 441; Bil- lingslea v. Gilbert, 1 Bland (Md.) 566; Codner v. Hersey, 18 Ves. 468; Paige V. Broadfoot, 100 Ala. 610, 13 So. 426; Nesbitt v. Dallam, 7 Gill & J. (Md.) 494; Pincers v. Robertson, 24 N. J. Bq. 348. 82 Fulton Bank v. Beacli, 2 Paige (N. Y.) 307. 83 1 Barbour, Ch. Pr. 143; Rev. St. 111. c. 22, §§ 20, 21; United States Equity Rule 41. 84 1 Barbour, Ch. Pr. 143. Where defendants are not jointly inter- ested in the claim brought against them in the bill, an answer on oath may be waived as to one defendant without such waiver as to the others. Bulkley v. Van Wyck, 5 Paige (N. Y.) 536. 85 Snowden v. Snowden, 1 Bland (Md.) 550. "United States Equity Rule 59 provides that any defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed, by any circuit court to take testimony or depo- sitions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory, or before any notary public. (333) § 308 EQUITY PLEADING AND jeRACTICB. [Ch. 13 erally regulated by statute or rules of court. Tke oath, when ad- ministered to a person who professes the Christian religion, is upon the Holy Evangelists, except in cases where a different form of oath or affirmation is authorized to be used by a stat- ute.®^ Persons who do not believe the Christian faith must, of necessity, be put to swear according to their own notion of an oath.^'^ In case of a foreigner not acquainted with the lan- guage, an order must be obtained for an interpreter.** Where the verification of an answer is upon "knowledge, information, and belief," not pointing out what statements are respectively upon knowledge, information, and belief, the whole answer must be treated as upon information and belief.** 86 Cooper, Eq. PI. 326; I Barbour, Ch. Pr. 144. 87 Omycliund v. Barker, 1 Atk. 21. 88 Cooper, Eq. PI. 326; Story, Eq. PI. § 874. Where an answer pur- ports to be the answer of two or more, and is not sworn to by all, it may be taken off the file, or can be received only as the answer of him who has sworn to it. Binney's Case, 2 Bland (Md.) 99. See, also, De Walt T. Doran, 21 D. C. 163; Ballard v. Kennedy, 34 Fla. 483, 16 So. 327. It is no ground of exception to an answer that it, being the answer of a corporation, is not sworn to by any officer or representative thereof. The proper remedy is a motion to take the answer from the files. Osgood v. A. S. Aloe Instrument Co., 69 Fed. 291. An answer should, in general, be sworn to, but it must be allowed to have full effect as such though made by one who is incompetent to give testimony in any case as a witne.ss, or who is incapable of making oath. Salmon v. Clagett, 3 Bland (Md.) 125. An an- swer of a defendant residing out of the state is a judicial record of the state in which it is to be used, and must be authenticated accord- ing to the laws ot such state. Contee v. Dawson, 2 Bland (Md.) 264; Gibson v. Tilton, 1 Bland (Md.) 352, 17 Am. Dec. 306. Where a bill requires an answer under oath, an answer with a draft of an affidavit attached, signed by defendant, but without the authentication of the jurat of an officer authorized to administer oaths, will he treated as no answer. Westerfield v. Bried, 26 N. J. Eq. 357. Where the jurat to an answer stated that the defendant swore that the facts stated in the answer were true, it was held that the word "facts" was equivalent to "matters." Whelpley v. Van Epps, 9 Paige (N. Y.) 332, 37 Am. Dec. 400. The court may remedy an objection that an answer is not signed or verified by allowing its signature and verification. Holton v. Guinn, 65 Fed. 450. 89 Pickett V. Gore (Tenn. Ch. App.) 58 S. W. 402; McKissick v. Mar- tin, 12 Heisk. (Tenn.) 313. (334) Oh. 13] ANSWERS. § 309 ■§ 309. Forms of orders concerning verification and of jurats — Order to take answer without oath or signature. [Title of court and cause.] On reading and filing the written consent of J. E., solicitor for com- plainant, tliat the answer of the said defendant, C. D., to the bill in this cause be taken without oath [or the signature] of said C. D., and on motion of J. L., solicitor for the said defendant. It is ordered that such answer of the said defendant may be put in without oath [or being signed] by the said C. D. Form of order appointing interpreter. [Title of court and cause.] On reading and filing the petition of the complainant in this cause, and on motion of J. L. G., solicitor for said complainant. It is ordered that M. N., of the city of Chicago, county of Cook, and state of Illinois, be, and he is hereby, appointed an interpreter to en- able the said C. D. to put in his answer to the bill of complaint filed in this cause. Form of jurat to answer of an illiterate person. State of ) County of \ The defendant, A. B., not being able to read or write, C. D., solicitor for the said defendant, was sworn that he had truly and faithfully read the contents of this answer to the said A. B., and that he ap- peared perfectly to understand the same. And the said A. B. was thereupon sworn that he had heard the said answer, subscribed by him with his mark, read, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated to be on his information or belief, and as to those matters he believes it to be true.oo • Form of jurat to answer of foreigner. State of - County of - The defendant, C. D., being a foreigner and unacquainted with the English language, was on this day of . A. D. 19 — . sworn to the above answer, by the interpretation of . who was duly 90 For form of this jurat, see 3 Hoffman, Ch. Pr. Ixxviii. (335) § 310 EQUITY PLEADING AND PRACTICE. [Ch. 13 appointed for that purpose, and who was previously sworn by me truly to interpret the same, and, being so sworn, the said C. D. did say that be knows the contents of the said answer, and that the same is true of his own knowledge, except as to the matters, etc. [as in the ordinary jurat]. si § 310. General form of answer. [Title of court and cause.] The joint and several answer of Charles Jones and William Smith, defendants, to the bill of complaint of John Doe, by James Doe, his father and next friend, complainant: These defendants, now and at all times hereafter saving and re- serving to themselves all manner of benefit and advantage of excep- tion to the many errors and insufficiencies in the complainant's said bill of complaint contained, for answer thereunto, or to so much or such parts thereof as these defendants are advised is material for them to make answer unto, they answer and say* they admit that Richard Roe, in the complainant's bill named, did duly make and execute such last will and testament, in writing, of said date, and to such pur- pose and effect as is in the complainant's said bill of complaint men- tioned and set forth, and did thereby bequeath to the complainant, John Doe, such legacy of three thousand dollars, in the words for that purpose mentioned in the said bill, or words to a like purport or effect. These defendants, further answering, say that they admit that the said testator died on or about the 25th day of March, 1896, without revoking or altering the said will. And these defendants, further answering, admit that they, these de- fendants, some time afterwards, to-wit, on or about the 1st day of May, 1896, duly proved the said last will and testament in the pro- hate court of the said county of Cook, and letters testamentary were granted by said court, and thereupon these defendants took upon themselves the burden of the execution of the said last will and testa- ment; and these defendants are ready to produce their letters testa- mentary and a certified copy of said will, as this honorable court shall direct. And these defendants, further answering, admit that the said com- plainant, John Doe, by his said father and next friend, did, several times since the said legacy of three thousand dollars became payable, apply to these defendants to have the said legacy paid or secured for the benefit of the said complainant, which these defendants declined, by reason that the said complainant was and still is an infant under 91 For forms of oaths of interpreters to answers of foreigners, and jurats to such answers, see 3 Hoffman, Ch. Pr. Ixxv-lxxvi. (336) Ch. 13] ANSWERS. § 311 the age of twenty-one years, wherefore these defendants could not, as they are advised, be safe in making such payment or in securing the said legacy in any manner for the benefit of the said complainant, except by the order and direction and under the sanction of this hon- orable court. And these defendants, further answering, say that, by virtue of the said will of the said testator, they have possessed themselves of the real and personal estate, goods, chattels, and effects of the said testa- tor to a considerable amount, and do admit that effects of the said testator have come to their hands sufficient to satisfy the complain- ant's said legacy, and which assets they admit to be sufficient to the payment thereof, and are willing and desirous, and do hereby offer, to pay the same as this honorable court shall direct, being indemnified therein.! And these defendants deny all unlawful combination and confed- eracy in the said bill charged, without that any other matter or thing material or necessary for these defendants to make answer unto, and not herein and hereby well or sufficiently answered unto, confessed or avoided, traversed or denied, is true to the knowledge or belief of these defendants. All which matters and things these defendants are ready to aver, maintain, and prove, as this honorable court shall direct, and humbly pray to be hence dismissed, with their reasonable costs and charges in this behalf most wrongfully sustained. Charles Jones. William Smith. C. M. D., Solicitor for Defendants. Ssate of Illinois, ) !- SS. County of Cook. ) Charles Jones and William Smith, being duly sworn, depose and say that they have read [or heard read] the foregoing answer, subscribed by them, and know the contents thereof, and that the same is true of their own knowledge, except as to the matters which are therein stated to be on their information and belief, and as to those matters they believe it to be true. Charles Jones. William Smith. Subscribed and sworn to before me this 15th day of May, A. D. 1898. E. F., Notary Public. § 311. Forms of averments — Where defendant is entirely igno- rant with regard to statement in bill. And this defendant, further answering, says he knows not, and has (337) Equity — 22 § 311 EQUITY PLEADING AND PRACTICE. [Ch. 13 not been informed, save by the said complainant's said bill, and can- not set forth as to his belief or otherwise, whether the said complain- ant has or has not applied for or procured letters of administration of the goods, chattels, rights, and credits of the said Richard Roe, to be granted to him by or from a proper or any court of probate, nor whether, etc. Defendant believing, but not knowing, the statement to be true. And this defendant further says that he has never heard nor been informed, save by the complainant's bill, whether, etc.; but this de- fendant believes that, etc., as in the said bill is alleged. Setting up statute of 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. Setting up statute of frauds. This defendant says that no agreement in writing for purchase of the said premises, or any part thereof, nor any memorandum or note thereof in writing, has been made, entered into, or signed by him, or by any person thereunto by him lawfully authorized; and he claims the benefit of the statute passed for the prevention of frauds and perjuries, in the same manner as if he had pleaded or demurred to the said complainant's bill. Claiming benefit of defense as if bill had been demurred to for want of equity. And this defendant submits to this honorable court that all and every of the matters in the said complainant's bill mentioned and complained of are matters which may be tried and determined at law, and with respect to which the said complainant is not entitled to any relief from a court of equity, and this defendant hopes that he shall have the same benefit of this defense as if he had demurred to com- plainant's bill. And this defendant denies [insert all matter after t in form of an- swer heretofore given]. (3.38) Ch. 13] ANSWERS. § 313 § 312. Certainty and positiveness in answering. The, .allegations in an answer must be positive; otherwise, the issue will be joined on the mere statement of the belief of the parties, not on their allegations of fact.^^ The defendant must confess or traverse positively and with certainty the substance of each material allegation in the bill. Particular and pre- N^ cise charges must be answered particularly and precisely, though the general answer amounts to a full denial. ^//As a gen- eral rule, it is not enough to deny every allegation of the bill not •expressly admitted to be true.^* , -Ihe answer must not be argu- mentative.*^ Omissions and evasions are proper subjects of an- imadversion, and calculated to weaken its force.^®/ A denial of I ■two allegations conjunctively is not a sufficient denial of each./^ ' Where, to a bill by stockholders complaining of a certain act •of a board of directors, the answer averred that such act had been ratified by the shareholders, but did not state the time, manner, or circumstances thereof, the answer was held to be insufficient.** ^ 313. Answering on knowledge, information, and belief. A defendant must answer as to his knowledge, remembrance, information, and belief, according to the general requisition in the bill. Generally, where matters charged in the bill as the .acts of the defendant himself are of such a nature that he can he presumed to recollect them, if they ever took place, a posi- tive answer is required.** But it is said that where the act 92Coale V. Cliase, 1 Bland (Md.) 136. 93 Woods v. Morrell, 1 Johns. Cli. (N. Y.) 103. 94 Holton V. Guinn, 65 Fed. 450. See post, § 314. 95 Young v. Mitchell, 33 Ark. 222; McKim v. Mason, 2 Md. Ch. 510; Jones V. Wing, Har. (Mich.) 301. 96 Gamble v. Johnson, 9 Mo. 605; Grady v. Robinson, 28 Ala. 289. 97 Pierson v. Ryerson, 5 N. J. Bq. 196. 98 Bidman v. Bowman, 58 111. 444, 11 Am. Rep. 90. 99 Cooper, Bq. PI. 300; 1 Barbour, Ch. Pr. 133; Hall v. Wood, 1 Paige (N. Y.) 404; Sanderlin v. Sanderlin, 24 Ga. 583; Noyes v. Inland & Sea- board Coasting Co., MacArthur & M. (D. C.) 1; Bailey v. Wilson, 21 N. C. 182; Grady v. Robinson, 28 Ala. 289; Dinsmoor v. Hazelton, 22 (339) §313] EQUITY PLEADING AND PRACTICE. [Ch. 13 charged did not occur within six years, that is regarded as an exception to the rule.-''"' An answer denying on information and belief matters as to which the defendant's knowledge, if any, must be direct and personal, is insufficient. Lack of knowl- edge must be directly stated. A denial on information and be- lief does not raise an issue. -^"-^ A defendant is allowed to state that he is informed of a certain fact by a person named, which information he believes to be true, if the fact is not within his o'wn knowledge.^ °^ When facts are not within his knowledge, he must answer as to his information and belief, and not as to his information or hearsay, only, without stating his belief one way or the other.'"' V^ When a defendant answers that he has not any knowledge or information of a fact charged in the bill, he is not bound to declare his belief one way or the other. It is only when he states a fact upon information or hearsay that he is required to state his belief or unbelief. ■'^^' Where a bill does not charge the facts to be within the knowledge of the de- fendant, he is permitted to answer as to his information and belief; and such an answer is always deemed sufficiently re- sponsive to the bill.-'''^ A denial of knowledge and information is not equivalent to a denial of belief.^"® N. H. 535; Jones v. Wing, Har. '(Mich.) 301; King v. Ray, 11 Paige (N. Y.) 235; Devereaux v. Cooper, 11 Vt. 103; Brooks v. Byam, 1 Story, 296, Fed. Cas. No. 1,947; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Ea. 146; Norton v. Warner, 3 Bdw. Ch. (N. Y.) 106; Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422. 100 Carey v. Jones, 8 Ga. 516. 101 Burpee v. First Nat. Bank of Janesville, 5 Biss. 405, Fed. Cas. No. 2,185; McAllister v. Clopton, 51 Miss. 257; Mead v. Day, 54 Miss. 58; Brown v. Pierce, 7 Wall. (U. S.) 211; Commonwealth Title Insurance & Trust Co. v. Cummings, 83 Fed. 767. 102 Norton v. Woods, 5 Paige (N. Y.) 260; Quackenbush v. Van Riper, 1 N. J. Eq. 476. 103 Dinsmoor v. Hazelton, 22 N. H. 535; Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103; Bailey v. Wilson, 21 N. C. 182; Kinnaman v. Henry, 6 N. J. Eq. 90. 104 Morris v. Parker, 3 Johns. Ch. (N. Y.) 297. 105 Jones V. Hawkins, 41 N. C. 110; Robinson v. Mandell, 3 Cliff. 169, Fed. Cas. No. 11,959; Cuyler v. Bogert, 3 Paige (N. Y.) 186. 106 Bond V. Duer, 3 Phila. (Pa.) 207. Lord Clarendon made an (340) Ch. 13] ANSWERS. § 314 § 314. Denials and admissions in answer. /An admission or allegation of fact in tlie answer will not \ order which is thus stated: "An answer to a matter charged as the defendant's own act must be direct, without saying that it is to his remembrance or as he believeth, if it be laid to be done seven years before, unless the court, upon exception taken, shall find special cause to dispense with so positive an answer." In Hall v. Bodily, 1 Vern. 470, decided after the order of Lord Clarendon, the defendant answered that he received no more than the sum of £ , to his remembrance, and it was held so far a good answer. "Where the facts are such that it is probable he cannot recall them so as to answer more positively, the denial of the facts according to his knowledge, recollection, and belief will be sufficient. Hall v. Wood, 1 Paige (N. Y.) 404. If the negative averments in the plea of an executor relate to transactions in the lifetime of the testator, or the acts done by others, it is suffi- cient if the averments are made upon the defendant's belief only. Drew V. Drew, 2 Ves. & B. 160; Heartt v. Corning, 3 Paige (N. Y.) 566. Where an answer sets up a bona fide purchase without notice by the grantor, the defendant is permitted to state upon his information and belief, merely, that such grantor had no constructive notice of the complainant's claim at the time of purchasing. Griffith v. Griffith, 9 Paige (N. Y.) 315. An answer which does not deny the averments in which the equity of the bill consists, but states "that respondent does not believe, and cannot admit, that said attorney made any such ar- rangements or contract as set forth in the bill," is not sufficient. Kent V. Ricards, 3 Md. Ch. 392. An answer that defendant has no knowl- edge except what is derived from the bill, without answering as to his information and belief, is insufficient; but an answer that he had no knowledge or Information whatever, except from the allegations in the bill, or that he is utterly and entirely ignorant except from the in- formation of the bill, is sufficient. Tradesmen's Bank v. Hyatt, 2 Edw. Ch. (N. Y.) 195. An answer that defendant does not know or believe a fact charged In the bill is insufficient. He Is bound to answer as to his Information. Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210. An answer, in reply to a charge of usurious acts done by defendant In person, that he has no knowledge, information, recollection, or belief concerning the charge, other than is derived from the statement in the bill, is insufficient. Sloan V. Little, 3 Paige (N. Y.) 103. The response, in an answer to a material allegation of the bill, that defendant, "having no personal knowledge thereof, leaves the said complainant to make such proof as he may be advised," is insufficient, since defendant may have informa- tion or belief of a very strong character. Ryan v. Anglesea R. Co. (N. J. Bq.) 12 Atl. 539; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 146. (341) § 314 EQUITY PLEADING AND PRACTICE. [Ch. 13 avail the complainant unless put in issue by the bill.^/' Where a fact is alleged in the bill, and admitted by the answer, the admission is conclusive, and evidence tending to dispute it should not be considered;^"* but,/although a defendant ad- mits the allegations and charges in a bill, he does not thereby consent to the granting of the relief prayed.y** The technical traverse usually inserted in the concluding clause of an answer, does not constitute an admission of allegations of the bill not denied in the answer, and such allegations must be substanti- ated by TpTooi.^)^ In most jurisdictions, nothing will be regarded as admitted by the answer unless expressly admitted,J^ and a literal denial in the answer of a material allegation in the bill is not to be deemed an admission, although it might be held insufficient on exceptions.^ ^^ Generally, where there is no di- rect response to a material statement in the bill, and no excep- tions are filed, but a replication is put in, on the hearing such statement cannot be taken as admitted, but must be proved. It need not be proved by the amount of testimony required to overcome the sworn responsive answer, but must be shown by at least a preponderance of evidence.^-^^ In most jurisdictions, it is held tha^when a matter is neither admitted nor denied by an answer, it must be substantiated by proof .-y^ 107 Hofe V. Burd, 17 N. J. Bq. 201; Jackson v. Ashton, 11 Pet. (U. S.) 229. 108 Welder v. Clark, 27 111. 251. 109 Hendrickson v. Winne, 3 How. Pr. (N. Y.) 127. 110 Litch V. Clinch, 136 111. 410, 26 N. B. 579. 111 Morris v. Morris, 5 Mich. 171. 112 United States v. Ferguson, 54 Fed. 28; Savage v. Benham, 17 Ala. 119; White v. Wiggins, 32 Ala. 424; Russey v. Walker, 32 Ala. 532. Positive denial of fraud, in an answer, will not avail against admis- sions in the same answer of facts which show that such transaction was fraudulent. Robinson v. Stewart, 10 N. Y. 189. 113 Stackpole v. Hancock, 40 Fla. 362, 24 So. 914; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599. 114 De Wolf V. Long, 7 111. 679; Coleman v. Lyne's Ex'r, 4 Rand. (Va.) 454; Bank of Jamaica v. Jefferson, 92 Tenn. 537, 22 S. W. 211; Smith v. Turner (Tenn. Ch. App.) 48 S. W. 396; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; Young v. Grundy, 6 Cranch (U. S.) (342) Ch. 13] ANSWERS. § 315 § 315. Responsiveness. Matter in an answer which is not responsive to the bill, and which is impertinent, will be stricken out on exceptions. ^^^ What is responsive to the bill is to be determined by the allega- tions of the bill, and not by the interrogatories. / The interroga- tories can neither limit nor extend the defendant's obligation to answer.-'^® An answer stating the particulars of a transaction charged and inquired into by the bill is responsive.-'^'' Where a deed is absolute on its face, and the grantor files a bill to set it aside, the answer of the defendant setting up a trust in the grantee, imless directly responsive to the bill, is not evidence of the trust.^^^ An answer stating that the respondent "does not believe, and denies," the material averments of the bill, is re- sponsive to, and an express denial of, such averments of the bill."V 51; Blakeney v. Ferguson, 14 Ark. 640; Glos v. Randolph, 133 111. 197, 24 N. B. 426; Bonnell v. Roane, 20 Ark. 114. "It is not true, in proceedings in chancery, that that which is not expressly denied is to be taken as admitted." De Wolf v. Long, 7 111. 679. In some juris- dictions it is held that material allegations of the bill not denied are admitted. Jones v. Knauss, 31 N. J. Eq. 609; Pinnell v. Boyd, 33 N. J. Eq. 190; Lee v. Stiger, 30 N. J. Eq. 610. See, also, Neale v. Hagthrop, 3 Bland (Md.) 569. Some cases hold that, if the facts are presumptively in the defendant's knowledge, failure to either admit or deny them is an admission of their truth (Clark v. Jones, 41 Ala. 349; Smilie v. Siler's Adm'r, 35 Ala. 88; Bank of Mobile v. Planters' & Merchants' Bank of Mo- bile, 8 Ala. 772) ; and that facts alleged to be in defendant's knowledge, if not denied, are to be taken as true (Mitchell v. Maupin, 3 T. B. Hon. [Ky.] 185; Mosely v. Garrett, 1 J. J. Marsh. [Ky.] 212); but that where the facts cannot be presumed to be, or are not, stated to be in defend- ant's knowledge, the rule that, if not admitted or denied, they are deemed to be admitted, does not obtain (Cowan v. Price, 1 Bibb [Ky.] 173; Bank of Mobile v. Planters' & Merchants' Bank of Mobile, S Ala. 772; Moore v. Lockett, 2 Bibb [Ky.] 69, 4 Am. Dec. 683; Thorington v. Carson, 1 Port. [Ala.] 257; Kennedy's Heirs v. Meredith, 3 Bibb [Ky.] 465). 115 Norton v. Woods, 5 Paige (N. Y.) 260. 116 McDonald v. McDonald, 16 Vt. 630. See supra, § 76. iiTMerritt v. Brown, 19 N. J. Eq. 286; Youle v. Richards, 1 N. J. Eq. 539. 118 Hutchinson v. Tindall, 3 N. J. Eq. 357. 118 Philadelphia Trust, Safe Deposit & Ins. Co. v. Scott, 45 Md. 451. (34.3) § 316 EQUITY PLEADING AND PRACTICE. [Ch. 13 § 316. Impertinence and scandal in an answer. Any matter in an answer which, is fairly responsive to the bill is not impertinent.-^^" An answer is impertinent if it goes beyond the allegations of the bill to state matter not material to the cause, and not constituting a defense.-^^^/ The test of impertinence is to inquire whether the subject of the allegations could be put in issue.^^-S-^ Matter in the answer complaining of acts of the complainant, but which cannot avail the defendant, is impertinent, as are reiterations in the answer.-'^ Averments re- \ lating to facts entitling the defendant to affirmative relief are J only proper in a cross bill, and may be expunged from an an- swer.^3^' In deciding whether matters objected to are pertinent or not, all substantial doubts are to be resolved in favor of their pertinency, and nothing should be expunged which the defendant has a right to prove, and which, if proved, can have any influence either in deciding whether the complainant is entitled to any. relief whatever, or the nature, character, and extent of the re- lief to which he may be entitled, even down to the question whether he shall have relief with or without costs.-^^^ An an- swer ought not to go out of the bill to state matters not ma- For other cases concerning responsiveness in answer, see Prentiss Tool & Supply Co. y. Godchaux, 30 TJ. S. App. 68, 66 Fed. 234; Rowley's Appeal, 115 Pa. 150, 9 Atl. 329; Baton's Appeal, 66 Pa. 483. 120 Monroy v. Monroy, 1 Bdw. Ch. (N. Y.) 382; Mclntyre v. Trustee of Union College, 6 Paige (N. Y.) 239; Mercantile Trust Co. v. Mis souri, K. & T. Ry. Co., 84 Fed. 379. 121 Commissioners of Highways v. Deboe, 43 111. App. 25; Armstj\JUA V. Chemical Nat. Bank, 37 Fed. 466; Florida Mortgage & Investment Co. V. Finlayson, 74 Fed. 671; Chapman v. School District, Deady, 108, Fed. Cas. No. 2,607. 122 Woods V. Morrell, 1 Johns. Ch. (N. Y.) 103; Hutchinson v. Van Voorhis, 54 N. J. Eq. 139, 35 Atl. 371. 123 Lawrence v. Lawrence, 4 Edw. Ch. (N. Y.) 357; Norton v. Woodsrs Paige (N. Y.) 260; Rees v. Evans, 1 Chan. Sentinel (N. Y.) 6; Langdon V. Goddard, 3 Story, 14, Fed. Cas. No. 8,061. 12-t Armstrong v. Chemical Nat. Bank, 37 Fed. 466. 125 Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Van Rensselaer v. Brice, 4 Paige (N. Y.) 174; Tucker v. Cheshire R. Co., 21 N. H. 29; Desplaces v. Goris, 1 Edw. Ch. (N. Y.) 350. (344) Ch. 13] ANSWERS. § 317 terial to the decision, and long recitals, and stories; and if they are reproachful, they are scandalous.^^® The repetition of an allegation in different parts of an answer is imperti- nent.^^ V Generally, an answer ought not to set forth deeds in haec verba. It is sufficient to set forth so much as is material to the point in questiony Any further recital will be deemed impertinence.-'^® Where pertinent matter is so mixed up with that which is impertinent and irrelevant as to render it impos- sible to separate it therefrom, the whole may be rejected for impertinence.^ ^^ Neither suitors nor solicitors should he al- lowed to manifest their personal feelings in an answer; and where an answer is impertinent, or unnecessarily reflects on the complainant, the objectionable part should be stricken out, at the cost of the offending solicitor.^ ^^ A disclaimer of all interest in the subject-matter renders any statements not responsive to the bill impertinent.-'^^ § 317. Joint or several answers. Two or more persons mayjx)inin_.the_,a^me ans-wer ; and where theirlnterests are'the same, and they appear by the same solici- tor, they ought to do so, unless some good reason exists for their 126 Hutchinson v. Van Voorhis, 54 N. J. Bq. 439, 35 Atl. 37i. rtToods V. Morrell, 1 Johns. Ch. (N. Y.) 103. An allegation, in an ans-wfer, that defendant believes that his character is much better than that of complainant, or of the solicitor -who drew the bill, is scandalous and impartinent, although the charges in the bill impeack the conduct of tie iefendant or of '(is solicitor in referellje to the subject of the suit. Rees v. Evans, 1 Chan. Sentinel (N. Y.) 6. Where a bill is filed to subject property to the satisfaction of a judgment, a paragraph of the ans-wer -which states a conclusion, and asks the court, on certain supposed general principles, to declare a result in relief of defendant "from a most unjust, a la Shylock, proceeding," is scandalous. John- son v. Tucker, 2 Tenn. Ch. 244. 127 Norton v. Woods, 5 Paige (N. Y.) 260. 128 Hood V. Inman, 4 Johns. Ch. (N. Y.) 437. See supra, § 99. 129 Norton v. Woods, 5 Paige (N. Y.) 260. 130 McConnell v. Holobush, 11 111. 61. 131 Saltmarsh v. Hockett & Knoxville Iron Co., 1 Lea (Tenn.) 215. See, for impertinence, Barrett v. Twin City Power Co., Ill Fed. 45.. See, also, supra, § 117; post, § 337. (345) § 318 EQUITY PLEADING AND PRACTICE. [Ch. 13 answering separately.^^^ As a general rule, the defendanta should answer jointly, unless their titles are different.^^* It ia the general rule that, where a joint fiduciary character exists, a joint defense should be adopted; but this rule does not apply where the joint parties are liable to account and incur re- sponsibility, as in the case of executors and trustees.^ ^* An answer put in as the joint answer of five defendants cannot be. sworn to as the answer of three only, but it ought to be amend- ed.^^^/^One defendant may make the answer of a co-defend- ant his own by referring to and adopting it.-^^^In a suit against, twelve defendants, an answer was filed, purporting to be the joint and several answer of all, but was in fact not sworn tO' or signed by one, who, after the cause was set down for hear- ing, filed a separate answer without leave of the court. It was- held that the separate answer was filed irregularly, and it was- ordered to be taken off the files. ■^^''/' A joint answer of the hus- band and wife must be sworn to by both, tinless the complain- ant consents to receive such answer upon the oath of the hus- band only.^^® § 318. Answer by infant. / In most cases the guardian ad litem appointed for the infant , puts in a general answer, submitting the rights of the infant 132 1 Barbour, Ch. Pr. 158; Van Sandau v. Moore, 1 Russ. 441; Story, Bq. PI. § 869; Davis v. Davidson, 4 McLean, 136, Fed. Cas. No. 3,631. 133 Cooper, Eq. PI. 323; Story, Eq. PI. § 869; Griffiths v. Wood, 11 Ves. 62. 13* Reade v. Sparkes, 1 Molloy, 8. See Kinney's Bx'rs v. Harvey, 2 Leigh (Va.) 70. 135 Cooper, Eq. PI. 323; Story, Eq. PI. § 869; Bailey Washing Machine Co. V. Young, 12 Blatchf. 199, Fed. Cas. No. 751. i36Binney's Case, 2 Bland (Md.) 99; Warfield v. Banks, 11 Gill & J. (Md.) 98. 137 Fulton Bank v. Beach, 2 Paige (N. Y.) 307. 138 New York Chemical Co. v. Flowers, 6 Paige (N. Y.) 654. See, for joint or several answers. Bobbins v. Abrahams, 5 N. J. Eq. 16, 51; Freelands v. Royall, 2 Hen. & M. (Va.) 575; Chinn v. Heale, 1 Munt. (Va.) 63. (346) Ch. 13] ANSWERS. § 319 to the^court If a special answer is necessary or advisable for the purpose of bringing such rights before the court, the same should be put in. If the infant is a nominal party, or has no defense to the bill, and no equitable rights against his co-defend- ants, a general answer is sufficient.-^^® It is the duty of a court to see that the rights of infants are not prejudiced or abandoned by the answers of their guardians.-^'"'/ Upon his arriving at full age, an infant is entitled to put in a new answer.'^ *V Ap- plication to do so must be made as early as possible after attain- ing majority, and/must be supported by an affidavit that he can make a better defense than that previously put in.^*^ The an- swer of an infant by his guardian ad litem is considered a plead- ing, merely, and not an examination for the purpose of discov- ery. It is not evidence in his favor or against him^4hough re- sponsive to the bill and sworn to by his guardian ad litem}*^ § 319. Form of general answer of infant by guardian ad litem. [Title of court and cause.] The answer of C. D., an infant under the age of twenty-one years, by M. H., his guardian ad litem, one of the defendants, to the original bill of complaint of A. B. : This defendant, answering by his guardian, says that he is an in- fant of the age of years or thereabouts, and he therefore sub- mits his rights and interests in the matters in question in this cause to the protection of this honorable court. C. D., By M. H., His Guardian ad Litem. G. H., Solicitor for M. H., Guardian ad Litem for Said C. D., an Infant. State of ) [•ss. County of ) M. H., the guardian ad litem of the above-named infant, was, on this 139 1 Barbour, Ch. Pr. 148; Knickerbacker v. De Freest, 2 Paige (N. Y.) 304. See supra, § 11. i« Barrett v. Oliver, 7 Gill & J. (Md.) 191; Davidson v. Bowden, 5 Sneed (Tenn.) 134. 141 Stephenson v. Stephenson, 6 Paige (N. Y.) 353. 1*2 Bennet v. Leigh, 1 Dickens, 89. 1*3 Stephenson v. Stephenson, 6 Paige (N. Y.) 353; Bulkley v. Van Wyck, 5 Paige (N. Y.) 536; Chaffin v. Heirs of Kimball, 23 HI. 33. (347) 323 EQUITY PLEADING AND PRACTICE. [Ch. 13 day of , A. D. , sworn before me, tliat he iad read the foregoing answer, and that he is informed, and believes, that the mat- ters therein stated are true. Subscribed, etc. M. H. § 320. Answer of persons non compos mentis, or under physical disabilities. 7 -"'^ The answer of an idiot or lunatic is similar to tliat of an in- fant, and should be sworn to by his committee in the same man- ner as the answer of an infant is verified by his guardian ad litemy^The same course of proceeding seems proper where the de- fendant is deaf and dumb.-^** Where a defendant is blind, some other person must swear that he has truly, distinctly, and audi- bly read over the contents of the answer to the defendant, who must also swear to the answer.^ *° § 321. Answer of an illiterate person. If the defendant is unable to read, the regular course of practice in England was for his solicitor to read the answer to him, and to make oath before the officer taking it that he has read it truly. The officer states this in his certificate.^*® § 322. Answer of a foreigner. -'^ In the case of a foreigner not familiar with the English Ian-' guage, an order is obtained for an interpreter, and the answer, being engrossed in the foreign language, a translation thereof must be made by the interpreter and annexed^The foreigner is required to be sworn to his answer, in order to do which the interpreter attending is previously sworn to interpret truly, and conveys to the defendant the language of the oath. At i^iMitford, Eq. PI. 315; Cooper, Eq. PI. 324; 1 Barbour, Ch. Pr. 154, 155. See supra, § 13. Unless the court has ordered a commission to issue to take the answer of such a person. 1 Barbour, Ch. Pr. 155. 1*5 1 Barbour, Ch. Pr. 155. I'ls 1 Hoffman, Ch. Pr. 240; Attorney General v. Malim, 1 Younge, 376; Pilkington v. Himsworth, 1 Younge & C. 612; 1 Barbour, Ch. Pr. 155; Hayes v. Lequin, 1 Hogan, 274. See supra, § 309. (348) Ch. 13] ANSWERS. § 323 the same time, he swears to the translation as true and just, to the best of his ability. When the answer is taken abroad in a foreign language, the court will order it to be interpreted by a sworn interpreter, and the translation to be filed with the original.-'*''^ § 323. Answer of a corporation. The answer of a corporation is usually put in under the cor- i porate seal, and without oath, and should be signed by the pres-J ident.-'*/ ITo particular form of seal is necessary.^*® An an- swer not under seal has been suppressed even though the secre- tary stated under oath that the company had no seal.-^®" The court may, however, dispense with the seal.^^^ ^Where it is , the object of a corporation to obtain the dissolution of an in- junction, the answer should be verified by the oath of some of the officers of the corporation who are acquainted with the facts.-' ^5/ Where a suit is instituted against a corporation sole, he must appear and defend and be proceeded against in the same manner as if he were a private individual.^ ^* 147 Cooper, Eq. PI. 32B; 1 Barbour, Ch. Pr. 154, 155; Bank v. Solomons, 1 Fowler, Exch. Pr. 427; Simmonds v. Du Barre, 3 Brown Ch. 263. See, also, Hays v. Lequin, 1 Hogan, 274. An answer by a defendant, a resi- dent of a foreign country, must be taken under a dedimus issued to a commissioner, and sworn to under the most solemn form observed by the laws and usages of such country. 1 Barbour, Ch. Pr. 144; Ramkis- senseat v. Barker, 1 Atk. 19; Read v. Consequa, 4 Wash. C. C. 335, Fed. Cas. No. 11,607. See supra, § 309. 1*8 1 Barbour, Ch. Pr. 156; Vermilyea v. Fulton Bank, 1 Paige (N. Y.) 37; Teter v. West Virginia Cent. & P. Ry. Co., 35 W. Va. 433, 14 S. E. 146; Fulton County Sup'rs v. Mississippi & W. R. Co., 21 111. 338; Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599. See supra, § 47; post, § 654. 149 Ransom v. Stonington Sav. Bank, 13 N. J. Eq. 212. iBo Ransom v. Stonington Sav. Bank, 13 N. J. Eq. 212. 151 Ransom v. Stonington Sav. Bank, 13 N. J. Eq. 212. 1B2 Fulton Bank v. New York & Sharon Canal Co., 1 Paige (N. Y.) 311. See supra, § 47. 153 1 Barbour, Ch. Pr. 158. (349) § 327 EQUITY PLEADING AND PRACTICE. [Ch. 13 S 324. Answers by married women. It is a general rule tliat in a suit against husband and wife the husband must procure the joint answer of himself and hia wife to be put in, or the bill may be taken as confessed against both. If either party wishes to answer separately, an order should be first obtained allowing it. / Where the wife lives sep- arate from her husband, and is not under his control, the court will, upon an affidavit verifying the circumstances, give the husband leave to put in a separate answer.-'®* § 325. Answer by defendant in contempt. ISTo answer can be received from a defendant who stands in contempt till he is discharged of such contempt.-' ^^ § 326. Answering amended bill. In answering an amended bill, if the defendant has answered the original bill, he should answer only those matters which have been introduced by amendment.^®® i 327. Time when defendant must answer. An answer is not strictly considered such until filed.^®'^ The time when a defendant is to answer is a matter fixed by the general regulations or practice of the particular court, yit is a general rule that the defendant is not bound to answer to a 154 Cooper, Eq. PL 325; 1 Barbour, Ch. Pr. 150; Robbins v. Abrahams, 5 N. J. Eq. 16; Toole v. De Kay, 4 Sandf. Ch. (N. Y.) 385. Owing to the fact that the disabilities of a married -woman have been largely removed by statutory enactments, the former rules prevailing relative to ans-wers by married -women have ceased to be of much practical application. A lull discussion thereof can be found in 1 Barbour, Ch. Pr. 150-154. issGant V. Gant, 10 Humph. (Tenn.) 464; Lane v. Ellzey, 4 Hen. 6 M. (Va.) 504; Saylor v. Mockbie, 9 lo-wa, 209; Johnson v. Pinney, 1 Paige (N. Y.) 646; Vo-wles v. Young, 9 Ves. 173; v. Gort, 1 Hogan, 77. See, also. Walker v. Walker, 82 N. Y. 260, -where the cases are fully revie-wed. See post, § 559. 156 Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N. W. 841; 1 Barbour, Ch. Pr. 159. 157 1 Barbour, Ch. Pr. 146; Giles v. Eaton, 54 Me. ,186. (350) Ch. 13] ANSWERS. § 328 cross bill until the other party has put in his answer to the' original bill.-'^*' A party is not bound to answer the part of the bill demurred to until after the demurrer is decided.^ ^^ -mDu a rule to answer on or before a certain day, it is a sufficient compliance with the rule that the answer is filed before a mo- tion for a default, though after the day.^^V If a necessary party be added to the bill, he is entitled to the same time to answer and plead as an original defendant.^®^ If a defendant puts in a demurrer after an order for further time to answer, it is irregular.^*' ^ An order for further time is usually ap- plied for ex "parte; but where the application is made after the time has expired, or after a former order for time, notice of it should be given.^®^ A defendant who wishes further time to put in his answer must make his application before an attach- ment has been issued against him for want of an answer f' other- wise, he will be in contempt, and will not be allowed to make it.i«* § 328. Answering by favor of court. Where a defendant answers by favor of court, he must be A restricted to an equitable answer; but where he has a right to ' 158 story, Eq. PI. § 845; Long v. Burton, 2 Atk. 218. See United States Equity Rules 61 and 66. bee post, § 904. 169 Ballance v. Loomiss, 22 111. 82. 160 Dunn v. Keegin, 4 111. 292; Hoxie v. Scott, Clarke, Ch. (N. Y.) 457. See supra, §§ 221, 277. isiHoxey v. Carey, 12 Ga. 534; Van Leonard v. Stocks, 12 Ga. 546. See, however, McDougald v. Dougherty, 14 Ga. 676. See, for time for filing answer in federal courts, Nelson v. Baton, 27 TJ. S. App. 677, 66 t'ed. 376; Oliver v. Decatur, 4 Cranch, C. C. 458, Fed. Cas. No. 10,494; Heyman v. Uhlman, 34 Fed. 686; Hendrickson v. Bradley, 55 U. S. App. 715, 85 Fed. 508. 162 1 Barbour, Ch. Pr. 147; Burrall v. Raineteaux, 2 Paige (N. Y.) 331. 163 1 Barhour, Ch. Pr. 147; 1 Hoffman, Ch. Pr. 229. By the Irish practice, a notice of application for time to answer, and an aflldavit filed in support of it, prevented all further proceedings by the com- plainant until the motion was disposed of by the court. Ormsby v. Palmer, 1 Hogan, 191. 164 1 Barbour, Ch. Pr. 148; Taylor v. Fisher, 6 Sim. 566. (351) §330 EQUITY PLEADING AND PRACTICE. [Ch. 13 answer, such limitation cannot be imposed.-^®^ When a defend- ant asks leave to open a decree and defend as a matter of favor, leave will not be granted if the defense rests on the groimd of usury. ^®® § 329. Withdrawal of an answer. / The court may, for good cause shown, allow an answer to be ! withdrawn after proof taken and a demurrer to be filed,^®^ espe- ■ cially if the bill does not state a title to the discovery and re- \ lief sought.^ '^^ i 330. Taking answer from the files. ■f In case any irregularity has occurred either in the frame or / form of an answer, or in the taking or filing of it, the complain- i ant may take advantage of such irregularity by moving to take I the answer from the files^/Thus, where a defect occurs in the title, so that it does not distinctly appear whose answer it is, or to what bill it is an answer, or where the complainant is misnamed in the title, the answer may, on motion of the com- plainant, be ordered to be taken from the file for irregularity.^®^ ,/ln such case the motion should be, not "to take the answer of I C. D." etc., off the file, but it should be called in the notice a ' certain paper writing- purporting to be the answer. ^^^ An an- swer may also be ordered to be taken off the file for the pur- pose of being produced before the grand jury on an indictment 165 Vanderveer's Adm'r v. Holcomb, 22 N. J. Eq. 555; Collard v. Smith, 13 N. J. Eq. 43. 166 Marsh v. Lasher, 13 N. J. Eq. 253. See, also, supra, § 157. le^Weisiger v. Richmond Ice Machine Co., 90 Va. 795, 20 S. E. 361; Merchant v. Preston, 1 Lea (Tenn.) 280; Chesnutt v. Frazier, 6 Baxt. (Tenn.) 217. 168 Kimbrough v. Curtis, 50 Miss. 117. For other cases involving withdrawal of answer, see Phelps v. Elliott, 30 Fed. 396; Williams v. Carle, 10 N. J. Eq. 543; White v. Joyce, 158 U. S. 128. 169 1 Barbour, Ch. Pr. 168; Pulton County Sup'rs v. Mississippi & W. R. Co., 21 111. 338; Griffiths v. Wood, 11 Ves. 62; Travers v. Ross, 14 N. J. Eq. 254. 170 1 Barbour, Ch. Pr. 168; Griffiths v. Wood, 11 Ves. 62. (352) Ch. 13] ANSWERS. § 330 for perjury preferred by the complainant ; but this will not be permitted where it appears that the alleged perjury is in a part wholly immaterial to the merits of the cause.-' ^-^ A complain- ant must apply to the court for an order to take an answer ofE the file for irregularity before he accepts the answer; other- wise, the right to make the application will be considered waived, except in the case of an irregularity in the jurat, or of an omission in the oath of the defendant.-' ^V If any part of the answer is responsive to any material fact in the bill, it will not be ordered taken from the file. The proper remedy is to except for insufficiency.-'-'^^ 171 Thompson v. Crosth-waite, 2 Younge & J. 512; McGowan v. Hall, 1 Hayes, 17. 172 1 Barbour, Ch. Pr. 170; Pilkington v. Himsworth, 1 Younge & C. 612; Fulton Bank v. Beach, 2 Paige (N. Y.) 307; Bailey Washing Machine Co. v. Young, 12 Blatchf. 199, Fed. Cas. No. 751. See Nes- bitt V. Dallam, 7 Gill & J. (Md.) 494. For cases -where an answer has been ordered taken from the files, see Cope v. Parry, 1 Madd. 83; Harris v. James, 3 Brown Ch. 399; Cooke v. Westall, 1 Madd. 265; Kimball v. Ward, Walk. (Mich.) 439; Putnam v. New Albany, 4 Biss. 365, Fed. Cas. No. 11,481. See, also, for taking answers off the file. May v. Williams, 17 Ala. 23; Denison v. Bassford, 7 Paige (N. Y.) 370; McLure v. Colclougt, 17 Ala. 89; Bernier v. Bernier, 72 Mich. 43, 40 N. W. 50; Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Smith v. Serle, 14 Ves. 415; Tomkin v. Lethbridge, 9 Ves. 178; Brooks v. Purton, 1 Younge & C. 278; White v. Howard, 2 De Gex & S. 223; New York Chemical Co. v. Flowers, 6 Paige (N. Y.) 654; American Life Insurance & Trust Co. v. Bayard, 3 Barb. Ch. (N. Y.) 610. 173 May V. Williams, 17 Ala. 23; Carpenter v. Gray, 38 N. J. Eq. 135; Feuchtwanger v. McCool, 29 N. J. Eq. 151; Travers v. Ross, 14 N. J. Eq. 254. In Putnam v. New Albany, 4 Biss. 365, Fed. Cas. No. 11,481, an answer of a person not named in the bill, nor admitted as a de- fendant, was stricken from the files. (353) Equity— 23 CHAPTER XIV. EXCEPTING TO ANSWER. § 331. Demurrer to answer improper. r Objections to an answer should be made by exceptions thereto, and not by demurrer.?^ A demurrer to an answer is a pleading unknown to chancery practice.^ i 332. Objections to affirmative defense. Exceptions to the answer do not perform the office of a de- anurrer in presenting the question whether the facts averred in the answer constitute a defense to the case made in the bill; .and as it is not permissible to iile a demurrer to an answery'if it is desired to submit the case on the questions of law arising on the answer, the only method is by setting down the case for tearing on bill and answer.^/ If the defense is not good, the proof of it will be of no avail, and the complainant will have the full beneiit of his objections at the hearing.* 1 Brown v. Scottish-American Mortgage Co., 110 111. 235; Arnold v. Styles, 2 BlacM. (Ind.) 391; Stonemetz Printers' Machinery Co. v. Brown Folding Machine Co., 46 Fed. 72; Walker y. Jack, 60 U. S. App. 124, 88 Fed. 576. 2 Grether v. Cornell's Ex'rs, 43 U. S. App. 770, 75 Fed. 742; Edwards v. Drake, 15 Fla. 666; Crouch v. Kerr, 38 Fed. 549; Stone v. Moore, 26 111. 165; Brill v. Mary A. Riddle Co. (N. J. Eq.) 47 Atl. 223; Banks v. Manchester, 128 U. S. 244; Stokes v. Farnsworth, 99 Fed. 836; Bar- rett V. Twin City Power Co., Ill Fed. 45. 3 Walker v. Jack, 60 U. S. App. 124, 88 Fed. 576; Shiras, Eq. Pr. § 58; Langdell, Eq. PI. (2d Ed.) § 83; Stokes v. Farnsworth, 99 Fed. 836; Grether v. Cornell's Ex'rs, 43 U. S. App. 770, 75 Fed. 742; Barry V. Abbot, 100 Mass. 396; Brown v. Scottish- American Mortgage Co., 110 111. 235. 4 Langdell, Eq. PI. (2d Ed.) § 83; Stokes v. Farnsworth, 99 Fed. 836. (354) Ch. 14] EXCEPTING TO ANSWER. § 334 § 333. Definition and office of exceptions. Exceptions are allegations in writing, stating the particular points or matters witli respect to which the complainant consid- ers the answer insufficient as a response to the bill, or scandal- ous, or impertinent. Their object is to direct the attention of the court to the points excepted to, and to take its opinion there- on before further proceedings are had, to the end that, if the answer is insufficient, a better answer may be compelled, or, if scandalous or impertinent, that the scandalous or impertinent matter may be expungedy'Exceptions to an answer are of two^ kinds: (1) For insufficiency, and (2) for scandal and imper- j tinence.^ The former lie where the answer does not sufficiently' respond to the allegations and charges in the bill ; and the latter, where the answer contains scandalous or impertinent matter." § 334. Exceptions for insufficiency. Exceptions for insufficiency can only be sustained where some ', material allegation, charge, or interrogatory in the bill is not i fully answered.*/ Exceptions founded on the omission of a mat- ter not material cannot be sustained where it is evident that the defendant has no design or intention of suppressing the truth or evading a full and fair inquiry.'^ Exceptions should not be taken for insufficiency, unless the discovery required would have some bearing on the point in controversy.^/T?hey do not lie because the answer does not state matter set forth in avoidance fully and explicitly. They lie only for matters set forth in the • bill, and not sufficiently answered.^ Although, as a general sMitford, Eq. PI. 315; 1 Barbour, Ch. Pr. 176; Arnold v. Slaughter, 36 W. Va. 589. 15 S. E. 250. 6 Stafford v. Brown, 4 Paige (N. Y.) 88; Surget v. Byers, Hempst. 715, Fed. Cas. No. 13,629; Blakeney v. Ferguson, 14 Ark. 640; West V. Williams, 1 Md. Ch. 358; Bank of Mobile v. Planters' & Merchants' Bank of Mobile, 8 Ala. 772. For right to except for insufficiency in the federal court, in view of United States Equity Rule 39, see United States V. McLaughlin, 24 Fed. 823. 7Baggot V. Henry, 1 Edw. Ch. (N. Y.) 7. 8 Fay V. Jewett, 2 Edw. Ch. (N. Y.) 323. sLanum v. Steel, 10 Humph. (Tenn.) 280; Bower Barff Rustless (355) §334 EQUITY PLEADING AND PRACTICE. [Ch. 14 ^ rule, a party who answers must answer fully, ye)4ie may accom- ] pany an admission or denial with explanations by way of avoid- ! ancej and if the complainant desires further information, he ( should apply for leave to amend, but he cannot except.3^ Ex- ceptions founded on mere verbal criticism, slight defects, or the omission of immaterial matter will be disallowed, and treated as vexatious.^^ Exceptions do not lie because of an insuiScient verification. The complainant should move to take the answer from the files. •'^ The court must see, by referring to the bill alone, in connection with the exception, that the precise matters as to which a further answer is sought are stated in the bill, or that such an answer is called for by the interrogatories.-'^ Where a bill requires a defendant to view exhibits' before put- ting in his answer, and he neglects to do so, the correct practice is to except to his answer on that ground.^* If a plea is or- dered to stand for an answer, it is to be deemed a sufficient an- swer, so far as it covers the bill; but the complainant may stiU except to the residue of the answer, and, if the plea is or- dered to stand for an answer with liberty to except, the com- plainant may, of course, file exceptions to the answer, or to Jihat part of it to which he is by the order permitted to exceptj/'but he cannot except to the plea as an answer unless liberty to ex- cept be expressly given.^y' If a plea or a demurrer to the whole bill, not accompanied by an answer, is overruled, the defendant Iron Co. V. "Wells Rustless Iron Co., 43 Fed. 391; United States v. Mc- Laughlin, 24 Fed. 823; Reade v. Woodroffe, 24 Beav. 421. 10 Whitney v. Belden, 1 Bdw. Ch. (N. Y.) 386; Spencer v. Van Duzen, 1 Paige (N. Y.) 556; Jolly v. Carter, 2 Bdw. Ch. (N. Y.) 209. 11 Baggot V. Henry, 1 Edw. Ch. (N. Y.) 7; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 395; Cleaves v. Morrow, 2 Tenn. Ch. 592. i2Vermilya v. Christie, 4 Sandf. Ch. (N. Y.) 376; Nesbitt v. Dallam, 7 Gill & J. (Md.) 494. 13 West v. Williams, 1 Md. Ch. 358; Stafford v. Brown, 4 Paige (N. Y.) 88. iiL'Estrange v. Moloney, 1 Hogan, 470. isMitford, Eq. PI. 304; 1 Barbour, Ch. Pr. 177; Kirby v. Taylor, 6 Johns. Ch. (N. Y.) 242; Coke v. Wilcocks, Mos. 73; Leacraft v. Demp- rey, 4 Paige (N. Y.) 124. See Siffkin v. Manning, 9 Paige (N. Y.) 222. (356) Ch. 14] EXCEPTING TO ANSWER. § 334 must answer without the complainant's being driven to except; but where a partial plea or demurrer is overruled, the com- plainant must except, as, since there is already an answer on the file, the defendant is not bound to answer further till exceptions have been taken.^^ Where a partial demurrer is allowed, the complainant may except to the answer to that part of the bill which is not covered by the demurrer.^ '^ Where a plea is ac- companied by an answer as to part of the bill, the complainant may, upon allowance of the plea, except to the answer, as he must if a partial plea is overruled.-^^/ When the answer is ac- companied by a plea, the complainant cannot except to the an- swer until the plea, is argued, and an order obtained that it shall stand for an answer with liberty to except./ If he does so, the exceptions will have the effect of allowing the plea, in the same manner as a replication would do.^y- The effect of tak- ing exceptions pending a demurrer to the discovery is to admit the demurrer ; but if a plea or demurrer is only to the relief prayed by the bill, and not to any part of the discovery, the complainant may take exceptions to the answer before the plea or demurrer is argued.^. The rule that the complainant must except to the answer as insufficient applies even where the plea or demurrer is accompanied by an answer only as to a single fact, such as a mere denial of combination.^^ 18 1 Barbour, Ch. Pr. 177; Trim v. Baker, 1 Turn. & R. 253. Ex- ceptions will not lie to an answer in aid of a plea. Leftwich v. Orne, Freem. Ch. (Miss.) 207. 17 Taylor v. Bailey, 6 Law J. Ch. (N. S.) 222; Kuypers v. Reformed Dutch Church, 6 Paige (N. Y.) 570; Many v. Beekman Iron Co., 9 Paige (N. Y.) 188. 18 Cotes V. Turner, Bunb. 123. 19 Foley V. Hill, 3 Mylne & C. 475 ; 1 Barbour, Ch. Pr. 178 ; Darnell v. Reyny, 1 Vern. 344; Brownell v. Curtis, 10 Paige (N. Y.) 210. 20Mitford, Eq. PI. 317; 1 Barbour, Ch. Pr. 178. 21 Cotes V. Turner, Bunb. 123. It is said that, if the answer be so evasive that it is a mere delusion, it will be considered no answer at all, and the court will order it to be taken off the file; and that, if complainant wishes a more direct answer, he must except to the an- swer as put in, and compel defendant to make a more direct answer. (357) § 335 EQUITY PLEADING ANB PRACTICE. [Gh. 14 § 335. When exceptions for insufficiency will not lie. r Exceptions for insufficiency will not lie to an answer of a cor- poration under its corporate seal;^- nor to the answer of an in- fant ;^^ nor to the answer of the attorney general;^* nor to an answer to which the oath of the defendant is waived, becanse such an answer is not evidence for the party making it.^^ Phillips V. Overton, 4 Hayw. (Tenn.) 291, citing Cooper, Bij. PI. 313; Blaisdell v. Stevens, 16 Vt. 179. 22 Smith V. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; United States V. McLaughlin, 24 Fed. 823. See, however, Gamewell Fire Alarm Tel. Co. v. Mayor, 31 Fed. 312. 23Copeland v. Wheeler, 4 Brown Ch. 256; Leggett v. Sellon, 3 Paige (N. Y.) 84; United States v. McLaughlin, 24 Fed. 823. Answers of lunatics or idiots put in by committees or guardians may be excepted to. 1 Barbour, Ch. Pr. 177. 24 Davison v. Attorney General, 5 Price, 398, note. 25 Barrett v. Twin City Power Co., Ill Fed. 45; United States v. McLaughlin, 24 Fed. 823; Sheppard v. Akers, 1 Tenn. Ch. 326; Mc- Cormick v. Chamberlin, 11 Paige (N. Y.) 543; Morris v. Morris, 5 Mich. 171; Pearson v. Treadwell (Mass.) 61 N. E. 44; Blaisdell v. Stevens, 16 Vt. 179; Goodwin v. Bishop, 145 111. 421, 34 N. E. 47; Smith v. Mc- Dowell, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393. It is held that, notwithstanding the New Jersey statute permittin,g the complainant to call for an answer without oath, the complainant may except to an answer in response thereto. Ryan v. Anglesea R. Co. (N. J. Eq.) 12 Atl. 539; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 393. In Hair Co. v. Daily,. 161 111. 379, 43 N. E. 1096, it was held that the rule under the former chancery practice, that exceptions for insufficiency cannot be taken to an unsworn answer, had been changed by statute, and was no longer the law in Illi- nois; and that Brown v. Scottish-American Mortgage Co., 110 111. 235, Mix V. People, 116 111. 265, 4 N. E. 783, and Goodwin v. Bishop, 145 111. 421, 34 N. E. 47, refer to the practice as unchanged by statute. See, also, Farrand v. Long, 184 111. 100, 56 N. E. 313, holding that in Illinois exceptions to unsworn answers are allowable. See, also. National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26, holding that the right to except still exists, even though an answer under oath is waived, citing Gamewell Fire-Alarm Tel. Co. V. Mayor, 31 Fed. 312; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 393; Colgate v. Compagnie Francaise du Telegraphe de Paris, 23 Fed. 82; Whittemore v. Patten, 81 Fed. 527. (358) Ch. 14] EXCEPTING TO ANSWER. § 337 § 336. Exceptions to answers to amended bills. Exceptions will lie to answers to amended bills as well as to those put in to original bills ; but where the complainant takes no exception to the answer to an original bill, he cannot takej an exception to the answer to the amended bill upon an objec-; tion which would have applied equally to the answer to the orig- ; inal bill.^V Circumstances may occur which may render a de- parture from the above rule necessary. Thus, where, after a defendant had answered, the complainant amended his bill by stating an entirely new case, it was held that exceptions would lie, although some of the interrogatories embraced in them were contained in the original bill. So, if the defendant, in answering amendments, alleges facts similar to those contained in his first answer, and not called for by the amendments, but alleges them without the circumstances given in the first answer, and interrogated to by the bill, an exception will lie.^'^ Excep- tions founded upon the new matters of the amendment should be entitled "Exceptions taken by the complainant to the answer of the defendant, C. D., to the complainant's amended bill of complaint," or "to the answer," etc., "to the amendments to the original bill of complaint of the complainant."^* § 337. Exceptions for impertinence and scandal. What constitutes scandal and impertinence has been hereto- fore considered.^^ Scandal and impertinence in answers are of the same nature, and subject to the same rules and the same method of practice, as when found in bills of complaint.^" Matter responsive to the bill cannot be excepted to as imperti- 26 1 Barbour, Ch. Pr. 178; Ovey v. Leighton, 2 Sim. & S. 234; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 160; Cbazournes v. Mills, 2 Barb. Ch. (N. Y.) 466; Eager v. Wiswall, 2 Paige (N. Y.) 369. 27 1 Barbour, Ch. Pr. 179; Mazarredo v. Maitland, 3 Madd. 66; Irving V. Viana, McClel. & Y. 563. See Williams v. Davies, 1 Sim. & S. 426. 28 1 Barbour, Ch. Pr. 179; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 161. 29 See supra, §§ 117, 316. 30 1 Barbour, Ch. Pr. 202. (359) § 337 EQUITY PLEADING AND PRACTICE. [Ch. 14 nent, though it may be, in fact, impertinent.^^ /^ An exception for impertinence must be supported in toto, and will fail if it covers any part of the answer which is relevant and material.^ An exception to an answer for impertinence, which, if allowed, would render the residue of the answer false or wholly unintel- ligible, will be overruled. ^^ Where an exception for imperti- nence, if allowed, would mutilate the answer unnecessarily, by breaking up sentences and clauses which ought to stand or fall together, such exception should be disallowed.^'* If the de- fendant, by his answer, sets up a distinct matter by way of avoidance, which is not called for by the bill, if the fact so stated is wholly immaterial, it may be excepted to for im- pertinence.^^ The introduction of scandalous and imperti- nent matter in a bill does not authorize or justify similar mat- ter in an answer to meet such improper allegations ; and if ex- ception be taken to it, the court will order that such matter be expunged.^^ An exception for impertinence, otherwise unten- able, will sometimes be allowed, if the matter excepted to might, if put in issue, lead to the introduction of improper evidence.^'' Nothing relevant can be deemed scandalous. ^^ Scandal and impertinence in an answer must be disposed of, before its suffi- 31 Lownsdale v. Portland, Deady, 1, Fed. Cas. No. 8,578. 32 Chapman v. School District, Deady, 108, Fed. Cas. No. 2,607; Busli V. Adams, 22 Fla. 177; Goodrich v. Parker, 1 Minn. 195 (Gil. 169); Desplaces v. Goris, 1 Edw. Ch. (N. Y.) 350; Buloid v. Miller, 4 Paige (N. Y.) 473; Van Rensselaer v. Brice, 4 Paige (N. Y.) 174; Curtis v. Masten, 11 Paige (N. Y.) 15. 33 Mclntyre v. Trustees of Union College, 6 Paige (N. Y.) 239; Clute V. Bool, 8 Paige (N. Y.) 83; Franklin v. Keeler, 4 Paige (N. Y.) 382. 34 Franklin v. Keeler, 4 Paige (N. Y.) 382; Bush v. Adams, 22 Fla. 177. 35 Spencer v. Van Duzen, 1 Paige (N. Y.) 555; Clissold v. Powell, cited in 2 Maddock, Ch. Pr. 355. 36 Langdon v. Pickering, 19 Me. 214; Burr v. Burton, 18 Ark. 215. 3f Cleaves v. Morrow, 2 Tenn. Ch. 592; Hawley v. Wolverton, 5 Paige (N. Y.) 525; Mclntyre v. Trustees of Union College, 6 Paige (N. Y.) 239. 38 Mitford, Eq. PI. 314; Cooper, Eq. PI. 318; Story, Eq. PI. § 862. (360) Ch. 14] EXCEPTING TO ANSWER. § 338 ciency can be considered. /After a reference for insiifBciency,! an answer cannot be referred for impertinence, but it may be for ] scandal. ^5^ The court, in cases of impertinence, ought, before expunging the matter alleged to be impertinent, to be especially clear that it is such as ought to be struck out of the record, for the reason that the error on one side is irremediable; on the other, not.*" The part of an answer excepted to for imper- tinence must, for the purpose of determining the exceptions, be taken as true.*\,-'^ut, after a replication has been filed by the complainant, he cannot, in general, either refer the an- swer for impertinence, or take exceptions on the ground of its ' insufficiency.*^ " § 338. Frame of exceptions. Exceptions must be in writing, and signed by counsel.*^ They must be properly entitled ; otherwise, they will be sup- pressed or taken off the file for irregularity.**^,- Exceptions for insufficiency should state the charges in the bill, the interroga- tory applicable thereto to which the answer is responsive, and the terms of the answer, verbatim, so that the court may see whether they are sufficient or not.*^ They must be founded on some allegation, charge, or interrogatory in the bill, and must state the particular points wherein the answer is defective, and pray that the defendant may put in a full and perfect answer 39 Cooper, Bq. PI. 321; Story, Eq. PL § 867. 40 Davis V. Cripps, 2 Younge & C. 443 ; Barrett v. Twin City Power Co., Ill Fed. 45; Wilkinson v. Dodd, 42 N. J. Bq. 234, 7 Atl. 327; Busli V. Adams, 22 Fla. 177; Brill v. Mary A. Riddle Co. (N. J. Eq.) 47 Atl. 223; Leslie v. Leslie, 50 N. J. Eq. 155, 24 Atl. 1029; Von Schroder V. Brittan, 98 Fed. 169. *iVan Rensselaer v. Brlce, 4 Paige (N. Y.) 174. *2 Cooper, Eq. PI. 322; Story, Bq. PL § 867. 43 1 Barbour, Ch. Pr. 181; De La Torre v. Bernales, 4 Madd. 396; Yates T. Hardy, Jao. 223. 44 1 Barbour, Cb. Pr. 181; Williams v. Davies, 1 Sim. & S. 426. 45 Croucb V. Kerr, 38 Fed. 549; Wbittemore v. Patten, 84 Fed. 51; Brooks V. Byam, 1 Story, 296, Fed. Cas. No. 1,947; Fuller v. Knapp, 24 Fed. 100; Bower BarfE Rustless Iron Co. v. Wells Rustless Iron Co., 43 Fed. 391; Jackson v. Kraft, 186 111. 623, 58 N. B. 298; Mix v. People, 116 IlL 265, 4 N. E. 783. (361) § 338 EQUITY PLEADING AND PRACTICE. [Ch. 14 in those respeets.*®/^If they do not clearly point out the parts of the bill which are not sufficiently answered, they may he struck off the file on motion/or it seems the objection may be taken when the exceptions are noticed for argument on the mas- ter's report.'*'' An objection on the ground that the answer is without fullness and particularity, and not according to the best of the defendant's knowledge, information, remembrance, or be- lief, is too general.*?-' An exception alleging in general terms that I the answer contains inconsistent defenses, without any attempt )' at specification of the defenses supposed to be inconsistent with I each other, is insufficient.^/ Where an exception made no point, ' and would compel the court to find out what was required to be answered, it was disallowed.^" Exceptions for impertinence or scandal should point out the objectionable passages with such clearness and precision as to enable the adverse party and the officers of the court to ascertain precisely what parts are objec- tionable, and, if several parts of an answer are objectionable, each part must be the subject of a separate exception.®^ Pray- *6 Buloid V. Miller, 4 Paige (N. Y.) 473. 47 Baker v. Kingsland, 3 Edw. Ch. (N. Y.) 138. See Sandusky v. Paris, 49 W. Va. 150, 38 S. E. 563. 48 Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686. 49 Peck V. Osteen, 37 Fla. 427, 20 So. 549. See Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. 250. 50 McKeen v. Field, 4 Edw. Ch. (N. Y.) 379. Under the English practice, where the complainant complained that a particular inter- rogatory in his bill had not been answered, he must state the inter- rogatory in the terms of it, and not throw upon the court the trouble of determining whether the expressions of the exceptions could be reconciled with the interrogatory. But this rule did not apply to trifling verbal alterations in the interrogatory. Hodgson v. Butter- field, 2 Sim. & S. 236; Brown v. Keating, 4 Jur. 477. Under the prac- tice of the New York courts of chancery, it was unnecessary to state the precise words of the allegation, charge, or interrogatory in the bill claimed to be not fully answered. It was suflBcient to state the substance. Stafford v. Brown, 4 Paige (N. Y.) 89. 51 Whitmarsh v. Campbell, 1 Paige (N. Y.) 645; Arnold v. Slaughter, 36 W. Va. 589, 15 S. E. 250. Where impertinent matter is referred to only as set forth on certain specified pages and lines of the answer, (•362) Ch. 14] EXCEPTING TO ANSWER. § 339 ers of exceptions may be amended. ^^ Separate exceptions for scandal and impertinence cannot be taken to the same matter.^^ /if the defendants answer separately, exceptions must be taken to each answer.^^ To a joint and several answer, only one set of 1 exceptions can be file^|^i ■^'^ exception for impertinence must i be allowed in whole, or not at all.^®^ § 339. Form of exceptions for insufficiency. [Title of court and cause.] Exceptions taken by tlie 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, C. D., has not, to the best and utmost of his knowledge, remembrance, information, and belief, answered and set forth whether [set forth the interrogatory in the bill which is not answered, in Jiaec verba]. Second exception: For that the said defendant, C. D., has not in manner aforesaid answered and set forth whether, etc. [as before]. 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. i 340. Form of exceptions for scandal and impertinence. [Title of court and cause.] Exceptions taken by the complainant to the answer of the defend- ant, C. D., to the bill of complaint in this cause, for scandal and im- pertinence: and the paging has not been preserved on appeal, it is certainly insuffi- cient on appeal to enable the appellate court to determine whether the exceptions were properly sustained or disallowed. Mix v. People, 116 111. 265, 4 N. E. 783. B2Whittemore v. Patten, 84 Fed. 51. BSMcIntyre v. Trustees of Union College, 6 Paige (N. Y.) 239. 04 Sydolph V. Monkston, 2 Dickens, 609; 1 Barbour, Ch. Pr. 182; Story, Eq. PI. § 864. 55 Thornly v. Jones, 2 Fowler, Exch. Pr. 10. E6 Conway v. Wilson, 44 N. J. Eq. 457, 11 Atl. 734; Stokes v. Parns- worth, 99 Fed, 836. (363) § 342 EQUITY PLEADING AND PRACTICE. [Ch. 14 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. 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. J. D., Solicitor for Complainant. § 341. When exceptions should be filed. j The question of when exceptions should be filed is regulated / by statute or rule of court. ^5^ Exceptions for insufficiency can be filed after exceptions for impertinence have been filed and disposed of.^^ § 342. Waiver of exceptions. Where a complainant files exceptions to an answer, and after- wards files a replication, and the cause is set down for hearing, the exceptions will be considered as waived.^.^ A complainant moving to amend his bill, after he has taken exceptions to the answer, will be regarded as having waived his exceptions, unless he moves specially for liberty to amend without prejudice to the exceptions. ^V The principle of waiver does not apply where the amendment of the bill extends only to the addition of anoth- er party, and requires no answer from the other defendants;®-^ or where the complainant, after answer to his original bill, changed his name, and amended his bill by substituting his new name for his old one, and adding another defendant, and after- " See United States Equity Rule 27; Rev. St. 111. c. 22, § 27; Hen- drickson v. Bradley, 55 U. S. App. 715, 85 Fed. 508. es Foster, Fed. Pr. § 153; Patriotic Bank v. Bank of Washington, 5 Cranch, C. C. 602, Fed. Cas. No. 10,806. 69 Berry v. Mathewes, 7 Ga. 457. 60 De La Torre v. Bernales, 4 Madd. 396. 61 Taylor v. Wrench, 9 Ves. 315. (364) Ch. 14] EXCEPTING TO ANSWER. g 344 wards took exceptions to the answer f^ or where the amendment is confined to the prayer of the bill, as for an injunction.^^ It is held that, if the complainant takes the bill as confessed as to those points not responded to, the exceptions are waived;®* and that where an answer is not responsive to a statement in the bill, and no exception is taken to the answer, the bringing of this point to issue is abandoned, and it is as if it had never been mentioned in the bilL'^s' § 343. Effect of exceptions. Where exceptions to an answer are filed, they must be dis- posed of before any proceedings can take place in the cause. ^® yii any of the exceptions to an answer are not well taken, the defendant must have that question settled in the first instance, and before he submits to answer further, or he will be compelled to answer these exceptions fuUy^nless the court thinks proper to relieve him on terms from the consequences of his neglect. ^'^ § 344. Procedure upon exceptions. The method of procedure upon exceptions varies in the dif- ferent jurisdictions, and the statutes obtaining in the partic- ular jurisdiction, and the rules of coiirt governing the pro- cedure in the court where the cause is pending, should be con- sulted. / If the defendant conceives the objections to be well taken, he may submit to them, and, if the exceptions are filed for insuificienoy in the answer, he may obtain leave to file a further answer within such time as the court may direc^;' or if the exceptions are filed for impertinence, and the defendant 62 Miller v. Wheatley, 1 Sim. 296. 63 Jacob T. Hall, 12 Ves. 458. 64 Griffith v. Depew, 3 A. K. Marsh. (Ky.) 179. 65 Teil V. Roberts, 3 Hayw. (Tenn.) 139. For other cases on waiver of exceptions, see Brownell v. Curtis, 10 Paige (N. Y.) 210; American Loan & Trust Co. v. East & West Ry. Co., 40 Fed. 384. 66 1 Barbour, Ch. Pr. 181; Clarke v. Tinsley's Adm'r, 4 Rand. (Va.) 250; Glassington v. Thwaites, 2 Russ. 458. 6T Eager v. Wiswall, 2 Paige (N. Y.) 369. (365) § 344 EQUITY PLEADING AND PRACTICE. [Qh. 14 submits thereto, the court will usually order the same to be ex- ^ punged.^f^If the defendant conceives the answer to be suf- ficient, or the part excepted to not impertinent or scandalous, the court, in some jurisdictions, will refer the matter to a master^ This was the practice in the English court of chan- cery and in the ISTew York court of chancery.*''' If the de- fendant's solicitor does not attend before the master, the mas- ter may proceed upon the reference ex parteJ° Formerly, the master reported the answer insufficient generally, upon the complainant establishing one exception without entering into the others; but Lord Eldon disapproved of this practice, and held that on the argument of the exceptions the master's judgment ought to be given upon each.^^ The master, hav- ing heard the arguments, and looked into the bill, answer, and exceptions, certifies his opinion as to the sufficiency or in- Sometimes no repli- 7 1 Barbour, Ch. Pr. 249. See Gallagher v. Roberts, 1 Wash. C. C. 320, Fed. Cas. No. 5,194; Cammann v. Traphagan's Ex'r, 1 N. J. Eq. 28. 8 Hughes V. Blake, 6 Wheat. (U. S.) 453; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 210; Farley v. Kittson, 120 U. S. 303; Beals v. Illinois, M. & T. R. Co., 133 U. S. 290; Souzer v. De Meyer, 2 Paige (N. Y.) 574. See, on this point. United States Equity Rule 33. See supra, § 279. 9 SpofEord V. Manning, 2 Edw. Ch. (N. Y.) 358. 10 Williams v. Longfellow, 3 Atk. 582. " Hill V. Bush, 19 Ark. 522. See Wheat v. Moss, 16 Ark. 243; Shields v. Trammell, 19 Ark. 62. See post, § 645 et seq. i2Mitford, Bq. PI. 322; 1 Barbour, Ch. Pr. 250; Story, Eq. PI. § 878; Newton v. Thayer, 17 Pick. (Mass.) 129; McClane's Adm'x v. Shepherd's Ex'x, 21 N. J. Eq. 76; Elliot v. Trahern, 35 W. Va. 634, 14 S. E. 223; Enoch V. Mining & Petroleum Co., 23 W. Va. 314; Mason v. Hartford, P. & F. R. Co., 10 Fed. 334; Storms v. Storms, 1 Edw. Ch. (N. Y.) 358. Unit- ed States Equity Rule 45 prohibits special replications. See, also. Rev. St. 111. c. 22, § 28. If a special replication is filed, it can only be treated as a general replication. Shaeffer v. Weed, 8 111. 511; White v. Mor- rison, 11 111. 361; Duponti v. Mussy, 4 Wash. C. C. 128, Fed. Cas. No. 4,185; Wren v. Spencer Optical Mfg. Co., 5 Ban. & A. 61, Fed. Cas. No. (380) Ch. 16] REPLICATION. § 356 cation need be filed at all, as where the defendant by his answer admits the complainant's case, or sufficient of it to enable him to go to a hearing withoiit the examination of witnesses; but as the whole of the answer is taken to be true, the answer should be carefully examined in order to determine that the effect of the admissions therein is not destroyed by any new matter there introduced.^ ^ After a replication is filed, a defendant cannot except to the answer for insufficiency, however imperfect it may be, unless leave to withdraw the replication is obtained. ■'^* If the complainant, by mistake, files a replication to an answer ir- regularly filed, he will be permitted to withdraw the replica- tion, and move to take the answer off the files. ^® If the neces- sity for an amendment of the bill arises after the filing of the replication, the complainant should apply for leave to withdraw the replication for the purpose of amending.^ ^ Upon such appli- cation, he must satisfy the court by affidavit that the matter of the proposed amendment is material, and could not, with rea- sonable diligence, have been sooner introduced in the bill.-'^ This practice does not apply to amendments by merely adding parties after replication.^® If the replication is not filed within the proper time, the cause will stand for hearing on bill and answer. ^^ If it is discovered that a replication has not been 18,062. A defendant is not affected by new matter set up in tlie repli- cation. Vattier v. Hinde, 7 Pet. (U. S.) 253. 13 Cooper, Eq. PI. .328; Story, Bq. PI. § 877. See Merrill v. Plainfleld, 45 N. H. 126. An allegation in an answer that defendant is informed and believes that the transaction is tainted with usury will not render a replication necessary. Suydam v. Bartle, 10 Paige (N. Y.) 94. " Cooper, Bq. PI. 328; Story, Eq. PI. § 877. 15 American Life Insurance & Trust Co. v. Bayard, 3 Barb. Ch. (N. Y.) 610. 16 Cooper, Eq. PI. 328; 1 Barbour, Ch. Pr. 253; Seymour v. Long Dock Co., 17 N. J. Bq. 169; Thorn v. Germand, 4 Johns. Ch. (N. Y.) 363; American Life Insurance & Trust Co. v. Bayard, 3 Barb. Ch. (N. Y.) 610; Hampson v. Quayle, 12 R. I. 508. 17 1 Barbour, Ch. Pr. 253; Moshier v. Knox College, 32 III. 155; Brown V. Ricketts, 2 Johns. Ch. (N. Y.) 425. 18 Brattle v. Waterman, 4 Sim. 125; Moshier v. Knox College, 32 111. 155. 19 1 Barbour, Ch. Pr. 251; Sneed v. Town, 9 Ark. 535. (381) § 356 EQUITY PLEADING AND PRACTICE. [Ch. 16 filed at the proper time, the court will allow it to be done after- wards nunc pro tunc. Where the ^ omission arose from a mistake or inadvertence, it has been allowed to be supplied after the cause has been set down for hearing on bill, answer, and proof ;^" and after the cause has come on for hearing, and the reading of proofs commenced;^-' and after the cause has been set for hearing on bill and answer,^^ or set for hearing on bill and answer and a reference ordered ;^^ and after decree.^* It is the duty of the court to prescribe the terms on which the rep- lication shall be filed, and to allow the defendant an opportunity to take testimony to meet the new phase of the case presented by the issue thus taken on his answer. ^^"^A replication need not be signed by the complainant. It is sufficient if it be signed by his solicitor.^ /^ The time within which the replication must be filed is regulated by statute or rule of court. ^^ It may be filed im- mediately after the answer has come in.^* It is discretionary with the court whether it will allow a replication to be filed, or to stand, if filed, after the time limited by the statute or rule has expired.^® Where parties go into trial without the issues 20 Mitford, Eq. PL 323; 1 Barbour, Ch. Pr. 252; Gaskill v. Sine, 13 N. J. Bq. 130. See Lyon v. Tallmadge, 14 Johns. (N. Y.) 501; Armistead v. Bozman's Heirs, 36 N. C. 117; Scott v. Clarkson's Ex'x, 1 Bibb (Ky.) 277; Jones v. Brittan, 1 Woods, 667, Fed. Cas. No. 7,455. 21 Rodney v. Hare, Mos. 296. 22Smitli V. West, 3 Johns. Ch. (N. Y.) 363; La Roque v. Davis, 2 Edw. Ch. (N. Y.) 599. See Sea Ins. Co. v. Day, 9 Paige (N. Y.) 247; Doody V. Pierce, 9 Allen (Mass.) 141. 23 Pierce v. West, Pet." C. C. 351, Fed. Cas. No. 10,909; Smith v. West, 3 Johns. Ch. (N. Y.) 363. 24 Daly V. Hosmer, 102 Mich. 392, 60 N. W. 758. See, also, Tedder v. Stiles, 16 Ga. 1; Warren v. Twilley, 10 Md. 39; Hall v. Clagett, 48 Md. 223. 25 Dabney v. Preston's Adm'rs, 25 Grat. (Va.) 838; Warren v. Twil- ley, 10 Md. 39. 20 Cooper, Eq. PI. 331; 1 Barbour, Ch. Pr. 250. 27 See United States Equity Rules 33. 38, 66; Rev. St. 111. c. 22, § 28. 2s 1 Barbour, Ch. Pr. 251. 29 Fischer v. Hayes, 6 Fed. 76; Gaskill v. Sine, 13 N. J. Eq. 130; (382) Ch. 16] REPLICATION. g 357 being made up by the filing of a replication, and the cause is heard upon evidence, they will be considered as having waived the formality of such an issue, and the answer will have no greater effect as evidence than if the replication had been filed. ^^ 5 357. Form of replication. £Title of court and cause.] The replication of A. B., complainant, to the answer of C. D., de- fendant : This repliant, saving and reserving to himself now and at all times hereafter all and all manner of advantage of exception which may be had and taken to the manifold insufficiencies of the said answer [and further answer or plea], for replication thereunto says that he will aver, maintain, and prove his bill of complaint to be true, certain, and sufficient in the law to be answered unto, and that the said answer [or plea] of the said defendant 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 [or plea] contained, material or effectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed and avoided, traversed or de- nied, is true, all which matters and things this repliant is and will be ready to aver, maintain, and prove, as this honorable court shall direct, and humbly prays, as in and by his said bill he has already prayed. J. B., Solicitor for Complainant. Smith V. West, 3 Johns. Ch. (N. Y.) 363; Sea Ins. Co. v. Day, 9 Paige (N. Y.) 247. 30 Corbus V. Teed, 69 111. 205. See, also, Glenn v. Hebb, 12 Gill & J. (Md.) 271; Brooks v. Mead, Walk. (Mich.) 389; Dudley v. Eastman (N. H.) 50 Atl. 101; Holmes v. Clifford, 95 111. App. 245. Rev. St. 111. ■c. 22, § 28, provides that replications shall be general, with the like advantage to all parties as if special, and shall be filed in four days after the complainant or his attorney shall be served with no- tice of answer filed. While, where a party submits to trial without a replication, the lack of the replication is waived, yet it would seem that, where the party serves a notice on the complainant, and the cause is set down for hearing on bill and answer, even though the answer is not sworn to, it must be taken as true. See, for comment on this ■statute, Holmes v. Clifford, 95 111. App. 245; Corbus v. Teed, 69 111. 205. (383) CHAPTER XVII. RULES OF COURT. § 358. In general. The practice in nearly every jurisdiction is largely regulated by rules. ^ It is the undoubted province of courts of record to establish reasonable rules of practice. Such power is inherent and independent of any statute.!*' Unless such power existed, it would be extremely difficult, if not impossible, for courts of justice to dispatch the public business. Delays would be in- terminable, for delay is not infrequently the object of one of the parties.^ While such power exists, nevertheless it must be exercised subject to the qualification that such rules must not controvert the law of the land.^ There is a wide difference be- 1 Thompson, Trials, § 205; Grotty v. Wyatt, 3 111. App. 388; Fuller- ton V. United States Bank, 1 Pet. (U. S.) 604; Cone v. Jackson, 12 Colo. App. 461, 55 Pac. 940; Town of Trinidad v. Simpson, 5 Colo. 65; Coyote, G. & S. M. Co. v. Ruble, 9 Or. 121. Illustrative of rules of court are the Rules of Practice for the courts of equity of the United States, adopted by the United States supreme court in 1866. See post. Ap- pendix B. 2 Snyder v. Bauchman, 8 Serg. & R. (Pa.) 336. Rev. St. U. S. § 918, confers upon the federal circuit and district courts the power to make rules and orders directing the return of writs and processes, the filing of pleadings, entering of judgments by default, and to otherwise regulate their own practice. For construe tion of this statute, see Saylor v. Taylor, 77 Fed. 476; Ward v. Cham- berlain, 2 Black (U. S.) 437. For construction of Florida statute pro- viding that the United States equity rules shall apply to suits in chan- cery, see Kahn v. Weinlander, 39 Fla. 210, 22 So. 653. 3 Fisher v. National Bank of Commerce, 73 111. 34; Beveridge v. Hewitt, 8 111. App. 467; People v. McClellan, 31 Cal. 101; State v. Judges, 37 La. Ann. 596; Hinchly v. Machine, 15 N. J. Law, 476; Suck- ley's Adm'r v. Rotchford, 12 Grat. (Va.) 60, 65 Am. Dec. 240; Main v. Lynch, 54 Md. 658. Where a matter is left to the discretion of the (384) CIj, 17] RULES OF COURT. § 359 tween tlie power of a court ■upon a q-uestion of jurisdiction and its authority over its mode of proceeding and process. A court cannot enlarge or diminisli its jurisdiction by rules of prac- tice.* § 359. Adoption of rules. There is a difference of opinion regarding the necessity of placing rules regulating practice upon the records of the court. It is, of course, always better that such rules be adopted of rec- ord by the court. In some jurisdictions it is held that, to make a rule valid, it must be in writing, and spread upon the records of the court, and reasonable publicity given it.^ In other juris- dictions it is held that it is not essential that rules of practice be embodied in writing.^/' When adopted and published, rules - have the force and effect of law, and are obligatory upon thd/ court, as well as upon parties to causes pending before it.V / court, a rule restricting such discretion is void. De Lorme v. Pease, 19 Ga. 220; Larned v. Piatt, 26 111. App. 278. It is held that a rule providing for the dismissal of a suit in which no order of progress has been made and entered of record for one year or more is not im- proper. Cone V. Jackson, 12 Colo. App. 461, 55 Pac. 940. It is said that rules are framed to bring a cause to a hearing, and do not apply after a cause has been heard, unless some proceedings are taken to bring it within their operation again, and to start it anew towards a hearing. Allen V. City of New York, 7 Fed. 483. 4 Steamer St. Lawrence, 1 Black (U. S.) 522; Rozier v. Williams, 92 111. 187. s Illinois Cent. R. Co. v. Haskins, 115 111. 300, 2 N. E. 654; Chicago Anderson Pressed Brick Co. v. Sobkowiak, 14S 111. 573, 36 N. E. 572; Owens V. Ranstead, 22 111. 161; State v. Bnsley, 10 Iowa, 149. For form of record adopting rules of practice, see Gage v. Eddy, 167 111. 102, 47 N. E. 200. e Duncan's Heirs v. United States, 7 Pet. (U. S.) 435; FuUerton v. Bank of United States, 1 Pet. (U. S.) 604. See Lowry v. Story, 31 Fed. 769; Maloney v. Hunt, 29 Mo. App. 379; Smith v. Lee, 10 Nev. 208. T Elliott, Gen. Pr. § 186; Lancaster v. Waukegan & S. W. Ry. Co., 132 111. 492, 24 N. B. 629; David v. Aetna Ins. Co., 9 Iowa, 45; Pratt v. Pratt, 157 Mass. 503-505, 32 N. E. 747; Rout v. Ninde, 111 Ind. 597, 13 N. B. 107; Magnuson v. Billings, 152 Ind. 177, 52 N. B. 803; Walker v. Ducros, 18 La. Ann. 703. Rules of court, while in force, constitute rules of law regulating the practice in the court by which they are adopted. Litigants and their solicitors are not chargeable with negligence in (385) Equity — 25. § 3b0 EQUITY PLEADING AND PRACTICE. [(Jh. 17 5 360. Suspension of rules. Whether or not the court can disregard its rules is involved in some confusion.^- In some jurisdictions it is held that such rules have the force of statutes, and are binding upon the court, ' as well as upon the parties, until rescinded.3/ In other jurisdic- tions it is declared that the court has povi^er to suspend its rules or except from their operation a particular case, when justice requires it.^ assuming that such rules will be pursued and enforced. Consolidated Kapid Transit & Elevated R. Co. v. O'Neill, 25 111. App. 313. sBeveridge v. Hewitt, 8 111. App. 467; Wall's Ex'x v. Wall, 2 Har. 6 G. (Md.) 79; Pratt v. Pratt, 157 Mass. 503, 32 N. E. 747, 21 L. R. A. 97; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603; Haulenbeck v. Cronkright, 23 N. J. Eq. 407; Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Baker v. State, 84 Wis. 584, 54 N. W. 1003; Hughes v. Jackson, 12 Md. 450; State v. Edwards, 110 N. C. 511, 14 S. E. 741; Coyote, G. & S. M. Co. v. Ruble, 9 Or. 121. Courts of general jurisdiction are presumed to have complied with their own rules ,of practice, unless the contrary is clearly shown. McClure v. Sandford, 3 Colo. 518; Cone v. Jackson, 12 Colo. App. 461, 55 Pac. 940. People v. Williams, 32 Cal. 280; Pickett v. Wallace, 54 Cal. 147; Southern Pac. Co. v. Johnson's Adm'x, 44 U. S. App. 1, 69 Fed. 559; Southern Pac. Co. v. Hamilton, 7 U. S. App. 626, 54 Fed. 468; Gillette- Herzog Mfg. Co. v. Ashton, 55 Minn. 75, 56 N. W. 576; Eastman v. Amoskeag Mfg. Co., 44 N. H. 143, 82 Am. Dec. 201; De Leon v. Owen, 3 Tex. 153; Sullivan v. Wallace, 73 Cal. 307, 14 Pac. 789; Hume v. Bowie, 148 U. S. 245. Perhaps the following language from a Maine- decision may ten^to reconcile the authorities on this point: "Nor is the claim that the en- forcement of a rule made by the court is within its discretion any more tenable. It may be that a rule adopted solely for the purpose of regu- lating the proceedings of the court, to render them more simple, me- thodical, and uniform, and when the rights of the parties are not in- volved, may, as in United States v. Breitling, 20 How. (U. S.) 252, be suspended or modified in their operation, when, in the judgment of the court, convenience or justice may require it; or perhaps, as in Law v. Law, 4 Me. 167, in certain cases a noncompliance may be excused when caused by accident or mistake, and no injustice can result to the opposing party. But in this case the rule is not for the guidance of the court alone, but regulates as well the proceedings, and involves the interests of opposing parties, and there is no suggestion of acci- dent or mistake as the cause of a neglect of its requirements. Nor in such case can the court waive any of its provisions, — that can be done (386) Ch. 17] RULES OF COURT. § 362 § 361. Construction of rules. It is held in some jurisdictions that rules of court enacted by statutory authority, and mandatory in their terms, are con- strued in the same manner as statutes.-^ ° It is also held that the court should lean in favor of giving to the litigants every reasonable opportunity of presenting their cases on the merits, and rules of procedure should be made to serve their true pur- pose of expediting and facilitating the disposition of cases ac- cording to their merits, and should not be converted into a means of obstruction,^^ and must not, by a literal interpretation, be extended to cases not within the object of them.^^ In some jurisdictions it is held that, upon a question of the constriiction or application of its own rules, a court can be reversed only for manifest and material error. -'^ § 362. Rules operate prospectively. ^/^t is generally true that rules of court operate prospectively.^* ) -They may be made to operate upon pending suits by expressly only by the party for whose benefit it was made. Winnisimmet Co. V. Town of Chelsea, 6 Cush. (Mass) 483." Wltzler v. Collins, 70 Me. 290, 35 Am. Rep. 327. See, also, Tlndal v. TIndal, 1 Rich. (S. C.) Ill; Magill's Appeal, 59 Pa. 430; Green v. Elbert, 137 U. S. 615. For cases where the court has suspended its rules, see Lance v. Bonnell, 105 Pa. 46; First Nat. Bank of Plattsburgh v. Post, 65 Vt. 222, 25 Atl. 1093; Southern Pac. Co. v. Johnson's Adm'x, 44 U. S. App. 1, 69 Fed. 559. Par- ties have no unqualified right to stipulate for the abrogation of rules prescribed by the court. Reynolds v. Lawrence, 15 Cal. 359. 10 Dunbar v. Conway, 11 Gill & J. (Md.) 92; Butler v. Butler, 11 Ala. 668; Seymour v. Phillips & Colby Construction Co., 7 Biss. 460, Fed. Cas. No. 12,689; Rathbone v. Rathbone, 4 Pick. (Mass.) 89. " Flagg V. Puterbaugh, 98 Cal. 134, 32 Pac. 863. 12 Ferguson v. Kays, 21 N. J. Law, 431. i3Bair v. Hubartt, 139 Pa. 96, 21 Atl. 210; Morrison v. Nevin, 130 Pa. 344, 18 Atl. 636; Mix v. Chandler, 44 111. 174; Evans v. Backer, 101 N. Y. 289. See, however, Witzler v. Collins, 70 Me. 290, 35 Am. Rep. 327; Dunbar v. Conway, 11 Gill & J. (Md.) 92; Gannon v. Fritz, 79 Pa. 303; Hunter v. Union Life Ins. Co., 58 Neb. 198, 78 N. W. 516. "Owens V. Ranstead, 22 111. 161; Risher v. Thomas, 2 Mo. 98. See Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649; Rawlings v. Neal, 122 N. C. 173, 29 S. E. 93. (387) § 364 EQUITY PLEADING AND PRACTICE. [Ch 17 i . _ / SO stating,^ ^ but, if not so expressly stated, they do not apply to / pending actions-^?/' A rule retrospective in its terms, and which is in its nature an act of limitation, is void.^'^ § 363. Amending rules. A^ court_may modify or rescind its rules. ■'^ It is held that such rules can only be abolished~Tn~the'^ame manner in which they are made.^® Amendments to rules operate prospective- ly.^o § 364. Proof of rules. Courts take j\idicial notice of their own rules, and therefore / they need not be proved.-^ It is a general rule that courts of re- j view do not take judicial notice of the rules of the court below, I but such rules must be incorporated in the record.^^ 15 Chain v. Hart, 140 Pa. 374, 21 Atl. 442; Coffin v. McClure, 23 Ind. 356. 16 Steamer St. Lawrence, 1 Black (U. S.) 522. i7Reist V. Heilbrenner, 11 Serg. & R. (Pa.) 131. 18 Chielovich v. Krauss (Cal.) 9 Pac. 945: Consolidated Rapid Transit & Elevated R. Co. v. O'Neil, 25 111. App. 313. 19 Burlington & Missouri River R. Co. v. Marchand, 5 Iowa, 468; Treisliel v. McGill, 28 111. App. 68. 2oRawlings v. Neal, 122 N. C. 173, 29 S. E. 93; In re Warde, 154 N. Y. 342, 48 N. E. 513; In re Day, 181 111. 73, 54 N. E. 646. 21 Rout V. Ninde, 111 Ind. 597, 13 N. E. 107. 22 Anderson v. McCormick, 129 111. 308, 21 N. B. 803; Roby v. Title Guarantee & Trust Co., 166 111. 336, 46 N. B. 1110; Rout v. Ninde, 111 Ind. 597, 13 N. E. 107; Truitt v. Truitt, 38 Ind. 16; Stockbridge v. Fahnestock, 87 Md. 127, 39 Atl. 95; Kindel v. Le Bert, 23 Colo. 385, 48 Pac. 641. See, however, Contee v. Pratt, 9 Md. 67; Huebner v. Farm- ers' Ins. Co., 71 Iowa, 30, 32 N. W. 13; Dunn v. Bozarth, 59 Neb. 244, 80 N. W. 811; Harris v. Burris, 1 Tenn. Cas. 80. Where a motion is made to remand a case to the state court on the ground that the appli- cation was not filed in time, the federal court cannot take judicial notice of the rule and practice adopted by the state court under statu- tory authority, by which the time in which pleadings might be filed was extended beyond the date fixed by general statute. Yarnell v. Felton, 104 Fed. 161. It is held in Illinois that the record in wuich rules of courts are entered is the only competent evidence to prove their existence. Roby v. Title Guarantee & Trust Co., 166 111. 336, 46 N. E. 1110; Davis v. Northwestern Elevated R. Co., 170 111. 595, 48 N. E. 1058. (388) CHAPTER XVIII. PUTTING COMPLAINANT TO HIS ELECTION. § 365. In general. If a complanant sues a defendant at the same time and for the same cause at law and in equity, the defendant may apply to the court for an order that the complainant make his elec- tion in which court he will proceed.-^ If, after an order to elect, he elects to proceed in equity, the court of chancery will restrain his proceeding at law by injunction; but if he elects to proceed at law, and fails there, the dismissal of his bill will be no bar to his filing a new bill in the same matter.^ A com- plainant will not be put to his election where the bill is for dis- covery only, and no relief prayed, for from the discovery he may be able to proceed at law, when without it he could not.^ A complainant may oppose a motion that he be compelled to elect, on the ground that the bill and action are for different matters^ The court will examine the proceedings in each suit, and generally decide without further inquiry, but an order of reference may be obtained in cases of difficulty to ascertain if 11 Barbour, Ch. Pr. 247; Mitford, Eq. PI. 249; Bradford v. Williams, 2 Md. Ch. 1; Jones v. Strafford, 3 P. Wms. 90; Rogers v. Vosburgh, 4 Johns. Ch. (N. Y.) 84; Cockerell v. Cholmeley, 1 Russ. & M. 418; Joyce V. Barker, 1 Dickens, 182; Romeilly v. Gilbert, 2 Fowler, Bxch. Pr. 404; Dunlap v. Newman, 52 Ala. 178; Gibbs v. Perkinson, 4 Hen. & M. (Va.) 415; Curd v. Lewis, 1 Dana (Ky.) 351; Way v. Bragaw, 16 N. J. Eg. 213, 84 Am. Dec. 147; Sandford v. Wright, 164 Mass. 85, 41 N. E. 120; Eastman v. Amoskeag Mfg. Co., 47 N. H. 71; Bently v. Dil- lard, 6 Ark. 79; Hempstead v. Watklns, 6 Ark. 317, 42 Am. Dec. 696; Quidnick Co. v. Chafee, 13 R. I. 367; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Miller v. Winton (Tenn. Ch. App.) 56 S. W. 1049. 2 Mitford, Eq. PI. 250; 1 Barbour, Ch. Pr. 247; Plymouth v. Bladon, 2 Vern. 32; Union Bank of Maryland v. Kerr, 2 Md. Ch. 460. 3 1 Barbour, Ch. Pr. 247. (389) § 365 Equity pleading and practice. [Ch. 18 the complamant's proceedings at law and in equity relate to the same matter.* If the reference is granted, it operates as a stay of proceedings in both suits, in the meantime.^ If the master reports that the matters of the two suits are distinct, the order for the complainant to elect will be discharged.® Where a party proceeds both in law and in equity, though the same property be pursued in each, yet the court will .not put the party to his election, where the recovery sought is upon different grounds, both of which are not at all cognizable in either case, or where the remedy at law is not equally complete and ade- quate with the remedy in equity.'' The rule as to electing can- not be evaded by mingling other grounds of complaint in the action at law with those which are comprehended in the bill in equity, where the real, substantial grounds of complaint are the same in both courts. */The complainant will be allowed a reason- able time to determine as to which court he will proceed in./ The reasonable time, under the English practice, seems to have been eight days; and this period has been prescribed in some instances in this country. If he refuses to elect between the remedies, his bill will be dismissed with costs.®/ One of several defendants, without the concurrence of the rest, has the right to compel an election of the remedies. ■'9' A complainant can- not be compelled to elect between a suit in equity to prevent an injury and a suit at law to recover damages for past in- jury. -^^ In order that a party may be put to his election, 4 Boyd V. Heinzelman, 1 Ves. & B. 381; Mills v. Fry, 3 Ves. & B. 9. 5 Carwlck v. Young, 2 Swanst. 239. « Mouseley v. Basnett, 1 Ves. & B. 382, note. ''Coleman v. Cross, 4 B. Mon. (Ky.) 268; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614. 8 Bradford v. Williams, 2 Md. Ch. 1. 9 Bradford v. Williams, 2 Md. Cli. 1; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Central R. Co. of New Jersey v. New Jersey West Line R. Co., 32 N. J. Bq. 67. The mere bringing of a suit in equity which has not proceeded to a final decree is not an election so as to bar an action at law. Kehoe v. Patton, 21 R. I. 223, 42 Atl. 868; Jenks V. Smith, 14 R. I. 634. 10 Bradford v. Williams, 2 Md. Ch. 1. 11 Carlisle v. Cooper, 18 N. J. Eq. 241. (390) Ch. 18] ELECTION BETWEEN COUNTS.- § 355 he must be plaintiff at law and complainant in equity^ Where | he is complainant in one suit and defendant in another at law, upon the same matter, he cannot be compelled to make •an election.^ / The pendency of a bill in equity asking specific performance of a contract does not preclude the complain- ant in equity from making a defense at law in a suit by the other party against him.^^ A mortgagee may pursue all his remedies at one and the same time.-'^^^/'The complainant is/ entitled to a complete answer before he can be put to his elec- tion, and cannot be piit to his election, after exceptions are filed, until they are answered^ It is irregular to obtain an order to elect before the time for iiling exceptions has expired.-'^/ If the defendant has pleaded to the bill, and the plea has not been argued, an order to elect will be discharged.^ V In order to ob- tain an order that the complainant elect, a special application to the court should be made. Such/Application should be foxmded on an affidavit stating that the two suits are brought for the same purpose, and upon copies of the pleadings in each su.it, to show that the matters are identical.^J The right to compel a complainant to elect is not confined to suits brought in the same jurisdiction.^^ 12 Botts V. Cozine, 2 Edw. Ch. (N. Y.) 583. 13 Haskins v. Lombard, 16 Me. 140, S3 Am. Dec. 645. i^Dunkley v. Van Buren, 3 Johns. Ch. (N. Y.) 330; Mundy v. Whit- temore, 15 Neb. 650; Aylet v. Hill, 2 Dickens, 551; Perry v. Barker, 13 Ves. 198; Priddy v. Hartsook, 81 Va. 67. 15 1 Smith, Ch. Pr. 561; Browne v. Poyntz, 3 Madd. 24; Tillotson v. Ganson, 1 Vern. 103; Soule v. Corning, 11 Paige (N. Y.) 412; Priddy V. Hartsook, 81 Va. 67; Semmes v. Mott, 27 Ga. 92; Dunlap v. Ingram, 57 N. C. 178; Houston v. Sadler, 4 Stew. & P. (Ala.) 130; Roman v. Dimmick, 123 Ala. 533, 26 So. 233. See Dunlap v. Newman, 52 Ala. 178. 16 Vaughan v. "Welsh, Mos. 210. 17 1 Barbour, Ch. Pr. 248; Livingston v. Kane, 3 Johns. Ch. (N. Y.) 224; Rogers v. Vosburgh, 4 Johns. Ch. (N. Y.) 84. isPieters v. Thompson, Coop. 294; Central R. Co. of New Jersey v. New Jersey West Line R. Co., 32 N. J. Eq. 67. See supra, § 258. (391) § 367 EQUITY PLEADING AND PRACTICE. [Ch. 18 § 366. Form of order that complainant elect. [Title of court and cause.] It appearing that the complainant prosecutes the defendant both at law and in this court for one and the same matter, whereby he Is doubly vexed, thereupon, on motion of 0. R., solicitor for the defend- ant, it is ordered that the complainant, within days after notice of this order, elect whether he will proceed at law in the suit brought by him against the defendant, or in this court, upon his bill, and if he elects to proceed at law, or if he neglects to file such election within the said days, the bill in this cause shall thereupon stand dis- missed, with costs, and, if he elects to proceed here, it is then ordered that he proceed no further in the suit at law without leave of this court.i9 § 367. Form of election. [Title of court and cause.] In pursuance of an order of this court, made in this cause, and dated the day of , the complainant doth hereby make his elec- tion to proceed in this court. C. R., Dated, . Solicitor for Complainant. 19 1 Hoffman, Ch. Pr. Ixxxvii. For other forms, see Hand, Sol. Ass. p. 55; 2 Fowler, Exch. Pr. 403; Rogers v. Vosburgh, 4 Johns. Ch. (N. y.) 84. (392) CHAPTER XIX. PAYMENT OF MONEY INTO COURT. § 368. In general. In some cases the court, upon the application of the com- \ plainant, will order money in the hands of the defendant to be '/ paid into court by him, to abide the event of the suit./ The time at which the application for this purpose is usually made is after the defendant's answer has been put in, but it may be made at any stage of the cause, provided the court is sat- isfied that money in which the complainant has an interest is in the defendant's hands, who has no equitable right to it, or that it is in danger of being lost.-^ The application may be based either upon an admission in the defendant's answer, or, under special circumstances, upon an affidavit before an- swer.^ The admission may appear upon the answer or the ex- amination before the master, or the motion may be founded upon the schedules to an examination, added up under oath, where the defendant has omitted to do it.^ An order will not be granted if any more complicated examination of books or 1 1 Barbour, Ch. Pr. 236; 1 Hoffman, Cli. Pr. 319-326; Quarrell v. Beck- ford, 14 Ves. 177; Contee v. Dawson, 2 Bland (Md.) 264; Hopkins v. McBldery, 4 Md. Ch. 23; McKim v. Thompson, 1 Bland (Md.) 150; Anonymous, 2 Law J. Ch. 21; Rebhan v. Fubrman, 21 Ky. Law Rep. 17, 50 S. W. 976; Brown v. De Tastet, 4 Russ. 126; Gordon v. Rotbley, 3 Ves. 572; Creak v. Capcll, 6 Madd. 114. 2 Jervis v. White, 6 Ves. 738. 3 1 Barbour, Ch. Pr. 237; 1 Hoffman, Ch. Pr. 319; Quarrell v. Beckford, 14 Ves. 177. But it is held that an affidavit of a parol admission is insufficient. McTighe v. Dean, 22 N. J. Eq. 81; Haggerty v. Duane, 1 Paige (N. Y.) 321. (393) § 368 EQUITY PLEA] )INC A'T "- VCTICE. [Ch. 19 accounts is necessary to attain the result.* In a case of gross fratid appearing, the court, upon aiEdavit of the complainant, and on considering the affidavit of the defendant in answer thereto, ordered the money to be paid into court before answer. But the court will not in any case order money to be paid into court before answer, where there is a probability of a balance in favor of the defendant.®/ The cases in which the applica- tion for this order are most usually made are upon admis- sions, in cases of executors and trustees, and vendors and pur- chaserg,^' Where the defendant's answer contains a clear ad- mission that there is trust money in his hands, the court will always, on an interlocutory application, order it to be paid into court.® Where an application is made against an executor or trustee, an admission is sufficient. It need not appear that the fund is in danger or insecure.'^ The court will, upon mo- tion, order the purchaser of an estate, being in possession un- * 1 Hoffman, Ch. Pr. 320; Mills v. Hanson, 8 Ves. 68; Roe v. Gudgeon, Coop. 304. 5 1 Barbour, Ch. Pr. 236; Jervis v. White, 6 Ves. 738; Blackburn v. Stace, 6 Madd. 69b. Where a part of the complainant's claim is admit- ted by the answer, such part may be ordered to be paid immediately, without awaiting the result of the litigation as to the residue. Clark- son V. De Peyster, Hopk. Ch. (N. Y.) 505. 6 1 Hoffman, Ch. Pr. 325; 1 Barbour, Ch. Pr. 237; Roth well v. Roth- well, 2 Sim. & S. 217. For cases involving application for order upon admissions, see Strange v. Harris, 3 Brown, Ch. 365; Mills v. Hanson, 8 Ves. 68; Hatch v. . 19 Ves. 116; Vigrass v. Binfield, 3 Madd. 62; Morrissey v. Foley, 2 Molloy, 346; Yare v. Harrison, 2 Cox, 377; Mortlock V. Leathes, 2 Mer. 491; Foster v. Donald, 1 Jac. & W. 252. Where money in controversy in a suit is held by a nominal party solely as trustee for another person not a party to the record, the court, at the instance of the party in interest, may order it to be paid into court. Where the holder of money, being an officer of the govern- ment, has ceased to be such officer during the pendency of the suit, the court should order the money to be paid into court. Nusbaum v. Emery, 5 Biss. 393, Fed. Cas. No. 10,381. 7 1 Hoffman, Ch. Pr. 321; Strange v. Harris, 3 Brown, Ch. 365; Blake V. Blake, 2 Schoales & L. 26; Hosack v. Rogers, 6 Paige (N. Y.) 415; Rutherford v. Dawson, 2 Ball & B. 17; Leigh v. Macaulay, 1 Younge & C. 260. For other cases involving payment of money into court by (394) Ch. 19] PAYMENT INTO COURT. § 368 der an agreement, to pay the purchase money into court, where he has approved of the title, or even in a case where it appears upon the face of the abstract that the title is bad, but the pur- chaser has sold the estate to another person ; or where the time is fixed for the payment of the purchase money by installments, and the property is a coal mine, and the defendant is deriving a benefit from working it; or where the purchaser exercises acts of ownership on the estate, as by cutting timber and under- wood ; or where the purchaser has taken possession without the consent or privity of the vendor./^ But if the vendor permits the purchaser to take possession before the completion of the title, without any stipulation as to the purchase money, he cannot, on motion, have the purchase money paid into court.^ Though a defendant makes an admission which would entitle the complainant to a decree, the complainant cannot for that reason move for payment of money into court.® The general rule as to the payment of money into court is that the com- plainant must be solely entitled, or have such an interest, jointly with others, as to entitle him, on behalf of himself and those others, to have the fund secured. ^'^ It is said that money in the hands of a banker, or of a mercantile house in which the de- fendant is a partner, is considered, upon this motion, as in the executors and trustees, see Rothwell v. Rothwell, 2 Sim. & S. 218; Curgenven v. Peters, 3 Anstr. 751; Carmicliael v. Wilson, 3 Molloy, 92; Johnson v. Aston, 1 Sim. & S. 73; Collis v. Collis, 2 Sim. 365; Widdowson v. Duck, 2 Mer. 494. 8 1 Barbour, Ch. Pr. 239; Walters v. Upton, Coop. 92, note; Boothhy V. Walker, 1 Madd. 197; Blackburn v. Stace, 6 Madd. 69; Clarke v. Elliott, 1 Madd. 606; Buck v. Lodge, 18 Ves. 450; Burroughs v. Oak- ley, 1 Mer. 52; McKim v. Thompson, 1 Bland (Md.) 161; Birdsall v. Waldron, 2 Edw. Ch. (N. Y.) 315; Johnson v. Sukeley, 2 McLean, 562, Fed. Cas. No. 7,414; Bonner v. Johnston, 1 Mer. 366. For other cases involving the payment of money into court in cases of vendor and purchaser, see Bradshaw v. Bradshaw, 2 Mer. 492; Cutler v. Simons, 2 Mer. 103; Wickham v. Evered, 4 Madd. 53; Dixon v. Astley, 1 Mer. 133; Fox v. Birch, 1 Mer. 105; Freebody v. Perry, Coop. 91; Gibson V. Clarke, 1 Ves. & B. 500; Binns v. Mount, 28 N. J. Eq. 24. 1 Barbour, Ch. Pr. 238; Peacham v. Daw, 6 Madd. 98. 10 Freeman v. Fairlie, 3 Mer. 29; 1 Barbour, Ch. Pr. 240. (395) § 368 EQUITY PLEADING AND PRACTICE. [Ch. 19 hands of the defendant.-^ ^Z" Generally, a partner, admitting the 1 receipt of money, but insisting there is a balance in his favor, will not be ordered to pay the sum in his hands into court ; but if J he has received it in a manner in which he ought not to have j received it, he will be ordered to bring it into court.-/ The court will, in general, only order the principal sum due from the defendant to be paid in, and not the interest; but where a defendant, by his answer, admits that he has received a principal sum, and interest to a greater amount, he will be ordered, on motion, to pay in the interest.-^ ^ Where an execu- tor admitted that he had received certain sums, but said that he had paid money on account of the estate, without specify- ing the amount, he was allowed to verify the amount by affida- vit, and ordered to pay the actual balance only into court. -^^ The application for this purpose may be by special motion, or petition on notice.^" Affidavits are admitted, after answer, to be read in support of a motion to pay purchase money into court.-'® If the court is satisfied that the order applied for ought to be made, the defendant is directed to pay the money into court on a certain day named in the order.^'^ Although the court has no authority to make any compulsory order on any per- son not a party to the suit, yet it will order that a person who has "Johnson v. Aston, 1 Sim. & S. 73; 1 Hoffman, Ch. Pr. 325. 12 Foster v. Donald, 1 Jac. & W. 252. 13 1 Barbour, Ch. Pr. 241; 1 Hoffman, Ch. Pr. 326; Wood v. Do-wnes, 1 Ves. & B. 50; Fairly v. Freeman, cited in 1 Ves. & B. 50; Clarkson v. De Peyster, 1 Hopk. Ch. (N. Y.) 505; De Peyster v. Clarkson, 2 Wend. (N. Y.) 77. "1 Barhour, Ch. Pr. 241; 1 Hoffman, Ch. Pr. 326; Anonymous, 4 Sim. 359. 15 1 Hoffman, Ch. Pr. 319; Quarrell v. Beokford, 14 Ves. 177; Brooks V. Dent, 4 Md. Ch. 473. 16 1 Hoffman, Ch. Pr. 326; Bradsha-w v. Bradshaw, 2 Mer. 492; Crutch- ley V. Jerningham, 2 Mer. 502. See Texas v. White, 131 U. S. xcv. 17 1 Barbour, Ch. Pr. 241; Higgins v. — , 8 Ves. 381. It is held that, upon moving on the ans-wer of the defendant for the payment of money into court, the complainant may show that, upon the case stated in the answer, he has an interest in the sum in question, or (396) Ch. 19] PAYMENT INTO COURT. § 368 received money on behalf of the complainant previous to the snit, although not a party, may be at liberty to pay the amount into court. -^^ A fund brought into court cannot be paid out by the officer of the court having it in custody to any one except in obedience to the order of the court, and a suit will not lie in a different forum to recover such money from such officer. ^^ But where money is deposited with the clerk of the court, as a tender, without the order of the court, and is never recognized or treated by the court as its fund, such deposit will not be con- sidered a fund of the court, and the depositor may withdraw it at any time before the court has recognized it as a fund un- der its control, or the party for whom it was intended has mani- fested a willingness to receive it upon the terms upon which it was deposited.^ V' It is held that where a stranger to the suit claims an interest in the fund in court he mu.st proceed for the purpose by bill ;'"' though it is also held that a petition is proper in such case. ^5^ But as a general rule a petition is the proper course to reach the fund in chancery, where no other parties are to be brought in to litigate the application than are, or ought to have been, parties to the original bill.^^ that a larger sum is due than Is admitted, though the defendant, in his answer, expressly denies that the complainant has any such inter- est or that such sum is due. 1 Barbour, Ch. Pr. 241; Domville v. Solly, 2 Russ. 372. But this proposition is doubted in 1 Hoffman, Ch. Pr. 323, where it is said that the case last cited was dependent upon peculiar circumstances, and In support of the doubt is cited Peacham v. Daw, 6 Madd. 98. isl Barbour, Ch. Pr. 241; Francis v. Collier, 5 Madd. 75. 19 Craig V. Governor, 3 Cold. (Tenn.) 244; Hammer v. Kaufman, 39 111. 87. See Bowden v. Schatzell, Bailey, Eq. (S. C.) 360. 20 Hammer v. Kaufman, 39 111. 87; Baker v. Hunt, 1 Wend. (N. Y.) 103. 2iBsterbrook Steel Pen Mfg. Co. v. Ahern, 31 N. J. Eq. 3; Evans V. Ellis, .5 Denio (N. Y.) 640; Lewis v. Cockrell, 31 111. App. 476. 22 Phillips V. Blatchford, 26 111. App. 606. 23 Hays V. Miles, 9 Gill & J. (Md.) 193, 31 Am. Dec. 70. For form of notice of motion for payment of money into court, see 2 Barbour, Ch. Pr. 432. (397) § 369 EQUITY PLEADING AND PRACTICE. [Ch. 19 § 369. Form of order to pay money into court. [Title of court and cause.] On reading the bill and answer in this cause [and due proof of service of notice of this motion], and on motion of J. E., solicitor for complainant, and on hearing E. F. in opposition to said motion [or, no one appearing to oppose]. It is ordered that the defendant, C. D., do, on or hefore 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. (398) CHAPTER XX. PRODUCTION AND INSPECTION OP DOCUMENTS. § 370. In general. The question of the production of documents, in the absence of statute, has been shorn of much of its importance on account of statutes, in most jurisdictions, regulating the right of a party to compel an adverse party to produce documents, either essential to framing the pleadings in the cause of action or to the defense of the party seeking it, or on the hearing./ Previous to ^ the final hearing the court only orders the production of books \ and papers upon two principles, — security pending litigation, ! and discovery or inspection for the purposes of the pending S suit.^^ The court will not make an order which will amount to an anticipation of the final decree, by giving the complainant any other advantages from the production than those above men- tioned.^ It is the practice to order deeds and other papers con- tested as false and fraudulent to be brought into court for in- spection.^ This will be done, under special circumstances, al- though a deed sought to be impeached is in the custody of a purchaser for a valuable consideration.'' The power to compel the production of books and papers should be exercised with caution, and the party invoking it must designate with reason- able certainty the books and papers required, and the facts ex- 11 Barbour, Ch. Pr. 101; Watts v. Lawrence, 3 Paige (N. Y.) 159; Bogert V. Bogert, 2 Edw. Ch. (N. Y.) 404; Eager v. Wiswall, 2 Paige (N. Y.) 369. 2Lingen v. Simpson, 6 Madd. 290; 1 Barbour, Ch. Pr. 229; Watts v. liawrence, 3 Paige (N. Y.) 159. 3 1 Barbour, Ch. Pr. 234; Fencott v. Clarke, 6 Sim. 8; Kennedy v. Green, 6 Sim. 6; Apthorpe v. Comstock, Hopk. Ch. (N. Y.) 144. * Kennedy v. Green, 6 Sim. 6; Beckford v. Wildman, 16 Ves. 438. (399) § 371 EQUITY PLEADING AND PRACTICE. [Ch. 20 pected to be sKown by tbem.^ In respect of documents belong- ing to the complainant which may be material to him on a refer- ence, and which are withheld from him by the defendant, the court will order their restoration, with a provision that no use be made of the order, or the fact of the restoration, or any cir- cumstance connected with it, by way of evidence in the cause.® § 371. Production by defendant. Where the answer admits that the defendant is in possession of documents, the court will, upon motion or petition, founded upon the adjxdssion in the answer, and upon evidence that the complainant has a direct and immediate interest in such deeds"" or documents, grant an order for their production. This is a special motion, and notice must be given of it.y The motion 5 Williams v. Williams, 1 Md. Ch. 199; Williams v. Savage Mfg. Co., 3 Md. Ch. 418. 6 Carpenter v. Benson, 4 Sandf. Ch. (N. Y.) 496. See, for power of court to order production of documents, Lawless v. Fleming, 56 N. J. Eq. 815, 40 Atl. 638; Victor G. Bloede Co. v. Bancroft & Sons Co., 98 Fed. 175, discussing practice in federal courts, and reviewing the authorities; United States v. National Lead Co., 75 Fed. 94; Owyhee Land & Irrigation Co. v. Tautphaus, 109 Fed. 547. T Bischoffsheim v. Brown, 29 Fed. 341; 1 Barhour, Ch. Pr. 229; Wat- son V. Renwick, 4 Johns. Ch. (N. Y.) 384; Eager v. Wiswall, 2 Paige (N. Y.) 369. The question (it has been said) may arise under three different aspects of an answer; (1) The documents and papers may not be referred to in the answer, but they may be admitted to be in the defendant's possession. (2) They may be referred to in the an- swer, and not be admitted to be in the defendant's possession. (3) They may be in part set forth or shortly stated in the answer as in the defendant's possession, and referred to in the answer for greater certainty, when produced; or, according to the common form, "as will appear by the said documents and papers, to which, for greater certainty, the defendant craves leave to refer." In the first case, the question whether the defendant shall produce the documents and pa- pers or not is determined by considering whether the documents do or do not relate to the complainant's title. If they relate solely to the defendant's title, they will not be required to be produced. If they relate to the complainant's title, they will. In the second case, the court cannot order the production of the documents and papers unless they respect the complainant's title, and unless, although stated not to be in the possession of the defendant, they happen to be in the hands of (400) Ch. 20] INSPECTION OF DOCUMENTS. § 371 must be founded on an admission in the answer, and, in order to obtain such an admission, leave to amend the bill will be given when requisite, although the cause is at issue.® The complainant is not entitled, as a matter of right, to the discov- ery or production of any documents or papers called for by the bill, except those which appertain to his own case, or the title made by his bill. Documents and papers which wholly and solely respect the defendant's title or defense, he is not com- pellable by his answer to discover or produce.'* To entitle the complainant, before hearing, or issue joined, to call for the inspection of documents, it is not sufficient that there has been a general reference to them in the answer. They must be de- scribed with reasonable certainty in the answer, or in the sched- ule annexed to it, so as to be considered by reference as incor- porated in the answer, which must admit them to be in the pos- session or power of the defendant, and it must appear that the complainant has an interest in the production of the books, papers, or documents sought after.^° If the answer offers to produce the deed or documents for the inspection of the com- plainant, an order for their production, and giving leave to the complainant to inspect them, will be made, upon reading the some person over whom the defendant evidently has a control. In the third case, it seems that although the documents and papers solely respect the defendant's title, yet the court will require their produc- tion; for the defendant has, by his mode of referring to them, made them a part of his answer. Story, Bq. PI. § 859; Hardman v. EUames, 2 Mylne & K. 756; Adams v. Fisher, 3 Mylne & C. 526. See Vermont Farm Machine Co. v. Batchelder, 68 Vt. 430, 35 Atl. 378; Robhins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880, . 8 Erskine v. Bize, 2 Cox, 226; 1 Barbour, Ch. Pr. 229; Barnett v. Noble, 1 Jac. & W. 227. 9 Story, Eq. PI. § 858; Champemoon v. Totness, 2 Atk. 112; Wilson V. Webber, 2 Gray (Mass.) 558; Haskell v. Haskell, 3 Gush. (Mass.) 542; Vermont Farm Machine Co. v. Batchelder, 68 Vt. 430, 35 Atl. 378. 101 Barbour, Ch. Pr. 230; Watson v. Renwick, 4 Johns. Ch. (N. Y.) 381; Gardiner v. Mason, 4 Brown, Ch. 479; Smith v. Northumberland, 1 Cox, 363; Princess of Wales v. Earl of Liverpool, 1 Swanst. 114; Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880. (401) Equity — 26 § 371 EQUITY PLEADING AND PRACTICE. [Ch . 20 admission and upon notice. ■'■' A voluntary offer of this nature is considered as dispensing with some of the safeguards which the practice affords the defendant, but an offer to produce a deed as the court shall direct, or if the court shall require it, is not a voluntary, but a qualified, offer. It is merely a sub- mission to the discretion of the court, and only binds the party to produce the paper if the court should think it necessary, and upon such a qualified offer the court will enter fully into the merits of the question as to the right of inspection.^ ^ A refer- ence to papers in the answer is not sufficient without an ad- mission that they are in the custody or power of the defendant.^' Where no allusion is made in the answer to papers, though re- ferred to in the bill, the complainant is not entitled by summary motion, based on the allegations of the bill, or on his proofs, to call for a disclosure of those documents. He should except to the answer for failing to reply to his allegation of their exist- ence and possession by the defendant.''* If the defendant merely states the effect of documents admitted to be in his pos- session, yet for greater certainty craves leave to refer to them when produced, the complainant is entitled to move for their production, though the answer positively states that they form part of the defendant's title and in no way assist or make out the title of the complainant;-'^ but if no order for production is obtained, and the deed itself is not produced upon the hearing, only the substance of such deed as it is stated in the answer is considered before the court as a part of the pleadings in the 111 Barbour, Ch. Pr. 229; 2 Fowler, Exch. Pr. 54. 12 Cooper, Eg. PI. 317; 1 Barbour, Ch. Pr. 229; Atkyns v. Wright, 14 Ves. 211; Stanhope v. Roberts, 2 Atk. 213. 13 1 Barbour, Ch. Pr. 230. An answer only admitting the execution of an instrument craving leave to refer to it when produced is not a sufficient ground to apply to the court for its production, the answer not admitting it to be in the possession or power of the defendant. Story, Eq. PI. § 860 ; Dawson v. Clarke, 18 Ves. 247. 14 Robbins v. Davis, 1 Blatchf. 238, Fed. Cas. No. 11,880, citing Story, Eq. PI. §§ 856-860. 15 Hardman v. Ellames, 2 Mylne & K. 732 ; 1 Barbour, Ch. Pr. 231. (402) €h. 20] INSPECTION OF DOCUMENTS. § 371 suit.-"^/ Concerning tlie kind of possession which will entitle the court to order the defendant to produce the document, it has been held that it must be a present, and not a past, posses- sion.^'^ >'If the documents are within the power or under the control of the defendant, he must produce them within a rea- sonable time, although they are in the hands of his agent in a foreign country.^*/ An admission of the joint ownership and joint possession of a document with another person is not suffi- cient.-'^. With regard to the nature of the interest which will entitle him to an order for the production of a deed or docu- ment, it is laid down as a general rule that/if the applicant has what is termed a common interest in the instrument with the other party, he is entitled to its production. ^^ If, however, the defendant has in his possession a deed relating to the title -of both parties, production of it will be ordered. So, if the •complainant has a direct interest in deeds in the defendant's possession, and they do not relate solely to any separate and in- dependent title of the defendant, they will be ordered to be pro- duced.^'^ The production of documents by the defendant, on mo- tion, for the purpose of aiding the complainant in sustaining his suit, is in the nature of an exception to the defendant's answer ; :and, where an exception would not be sustained if the bill called 16 Roosevelt v. Ellithorp, 10 Paige (N. Y.) 415. "1 Barbour, Ch. Pr. 231; Heeman v. Midland, 4 Madd. 391. 18 Story, Eg. PI. § 859; 1 Barbour, Ch. Pr. 231; Eager v. Wiswall, 2 Paige (N. Y.) 369; Walburn v. Ingilby, 1 Mylne & K. 61; Hornby V. Pemberton, Mos. 57; McCann v. Beere, 1 Hogan, 129; Hardman v. Ellames, 2 Mylne & K. 756. isReid V. Langlois, 1 Macn. & G. 627; Lopez v. Deacon, 6 Beav. 254. 20 1 Barbour, Ch. Pr. 232; Burton v. Neville, 2 Cox, 242; Smith v. Northumberland, 1 Cox, 363; Inman v. Hodgson, 1 Younge & J. 28; Salisbury v. Cecil, 1 Cox, 277; Kelly v. Eckford, 5 Paige (N. Y.} 548; Pickering v. Rigby, 18 Ves. 484. 211 Barbour, Ch. Pr. 232; Bolton v. Corporation of Liverpool, 3 Sim. 489; Attorney General v. Ellison, 4 Sim. 238. See, as to title or inter- ■est of complainant, Shaftesbury v. Arrowsmith, 4 Ves. 66; Shaw v, Shaw, 12 Price, 163; Shehan v. Glynn, 2 MoUoy, 387; Wilson v. Forster McClel. & Y. 274; Burrell v. Nicholson, 1 Mylne & K. 680; Newton v. Beresford, 1 Younge, 377. (403) § 373 EQUITY PLEADING AND PRACTICE. [Oh. 20 for a full statement of the document in the answer, a motion for its production will not be granted if the answer admits its custodjv' Such production will not be ordered, therefore, where answer on oath is waived.^^ WJiere a bill brought for injunc- tion and relief against a deed prays the production thereof, the defendant is not bound to make the deed a part of his answer or to annex such deed thereto. The complainant must obtain an order for the production.^* § 372. Form of petition for production and inspection of papers. [Title of court and cause.] [Address to the court] Tlie 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 testimony has been taken in the cause, nor has the same been noticed for hearing; that by the answer of the said defendant he admits that he is in possession of divers books, deeds, letters, accounts, and other papers relating to the matters at issue in this cause; that your petitioner has a direct and immediate interest in the said books, deeds, and other papers, and an inspection thereof is necessary to enable him to examine witnesses in this cause, and to prepare such cause for hearing. Your petitioner therefore prays that the said defendant may be or- dered to produce to and leave with the clerk of this coutt 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. [Add verification.] Petitioner. § 373. Form of 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 J. E., solicitor for said com- plainant, in support of the same, and on hearing N. M. in opposition thereto [or, no one appearing to oppose]. It is ordered that the defendant, C. D., do, within days from the 22 Carpenter v. Benson, 4 Sandf. Ch. (N. Y.) 496, citing Wigram, Discovery, 13. 23 Smith v. Thomas, 22 N. C. 126. (404) Ch. 20] INSPECTION OF DOCUMENTS. § 3Y4 date of this order, produce to and leave with the clerk [or register] of this court the books, deeds, letters, accounts, and other papers re- lating to the matters at issue in this cause, which are admitted by the said defendant's answer to he in his possession, and that the com- plainant, his solicitor, agent, or counsel, may he at liberty to inspect and peruse the same, and to take copies thereof or extracts therefrom, as he may be advised, at his own expense, but that the said defendant he at liberty to seal up such parts of the said hooks, deeds, etc., as he shall make oath do not in any manner relate to the matters in contro- versy in this suit. i 374. Production of documents by complainant. In ordinary cases the complainant cannot be compelled upon motion to submit his books, or other documentary evidence in his possession, to the inspection of the defendant, to enable the latter to answer the bill and make his defense in the suit./ But,' if the complainant, upon request, refuses to permit the defend- ■ ant to inspect such books or documents, he cannot afterwards object that the answer is insufficient in not stating their con-B tents j/ and, where the books or documents of the complainant; are material for the defense of the suit, the defendant must file,;, a cross bill against the complainant for a discovery of them.^ The rule is different as to partnership books and papery to the . inspection of which both parties have an eqiial right, but which] are in the hands of one of the copartners, or his assigns or rep-; resentatives. y In such a case, upon the application of either party, and in any stage of the suit, the adverse party will be compelled to deposit the partnership books and papers which are in his possession, or under his control, in the hands of an officer of the court, for the inspection of the party making such application, and such party may take copies thereof, if neces- sary.^^ 24 1 Barbour, Ch. Pr. 251; Ryder v. Bateman, 93 Fed. 31; Kelly v. Eckford, 5 Paige (N. Y.) 548; Penfold v. Nunn, 5 Sim. 409; Lupton V. Johnson, 2 Johns. Ch. (N. Y.) 429; Denning v. Smith, 3 Johns. Ch. (N. Y.) 409; Spragg v. Corner, 2 Cox, 109; Hare v. Collins, 1 Hogan, 193; Darwin v. Clarke, 8 Ves. 158; Ex parte Baker, 118 Ala. 185, 23 So. 996; Smith v. Collins, 94 Ala. 394, 10 So. 334. 25 Kelly V. Eckford, 5 Paige (N. Y.) 548. See Pickering v. Rigby, 18 Ves. 484; Mlcklethwait v. Moore, 3 Mer. 296; Ex parte Baker, 118 (405) § 377 EQUITY PLEADING AND PRACTICE. [Ch. 20 § 375. Form of order for production of papers by complainant. [Title of court and cause.] On reading and filing the petition of the defendant, C. D., duly veri- fied, praying for the production and inspection of the certain promis- sory note therein mentioned before he shall be compelled to answer the bill in this cause, and on hearing E. F. in support of such petition, and G. B. 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 the day of , A. D. . and alleged therein to have been given by to , for assuring the payment of the sum of dollars, days after such date, and that the said defendant have days' time to answer said bill after the said note or instrument shall have beep so produced. ^Va^Cb" Riglit of defendantjto_cgji4)elproduction by co-def endant ^ A motion by one of two defendants that the other be com- pelled to submit documents in his hands to the inspection of his co-defendant, to enable the latter "-o answer the bill and make his defense, will be denied.y This caii :^nly be accomplished by cross bill3® § 377. Inspecting documents. Where a party establishes his right to inspect books in the adverse party's possession, it is of course to grant the order for inspection, with liberty to take copies. ^^ The defendant may seal up such parts of the books, documents, and papers as he swears do not relate to the claim of the complainant.^* It seems to be the rule that, under an order for inspection, the examination may be conducted without the presence of the defendant or his Ala. 185, 23 So. 996; 3 Greenleaf, Ev. § 303. On motion of defendant, a deed mentioned in complainant's bill as being in his possession will noi be ordered to be produced for defendant's inspection. 1 Barbour, Ch. Pr. 101; v. , 2 Dickens, 778; Micklethwait v. Moore, 3 Mer. 292. See, supra, § 187, where the question of production of documents by complainant is considered. 26 Evans v. Staples, 42 N. J. Eq. 584, 8 Atl. 528. 27 1 Barbour, Ch. Pr. 235; Hide v. Holmes, 2 Molloy, 372. 28 1 Barbour, Ch. Pr. 235; Campbell v. French, 2 Cox, 286; Dlas v. Merle, 2 Paige (N. Y.) 494; Gerard v. Penswick, 1 Wils. Ch. 222. (406) Ch. 20] INSPECTION OP DOCUMENTS. § 377 solicitor. The papers must be delivered into the possession of the officer of the court, to be open to the view of the complainant whenever he pleases, and it will not be a compliance with the or- der to deposit the papers in a box, under lock, with a notice to send for the key whenever it is wanted.^® Where documents men- tioned in a schedule by the defendant are deposited in court for the inspection of the complainant, under an order for that pur- pose/the defendant is entitled to have them restored to him asi soon as such inspection has taken placey/and the complainant is not entitled to have them left in the custody of the clerk of the court, notwithstanding that it may be necessary that they should be produced before the master in taking the account directed by the decree or on the hearing of an appeal from the decree.^'* Where it is referred to a master to superintend the production or delivery of books and papers, all parties interested may exam- ine the party producing as to the fact that the order has been ful- ly and fairly complied with, and the master should allow a rea- sonable time to inspect the books and papers delivered, and to prepare interrogatories for the examination of the party if nec- essary.^^ 29 1 Barbour, Ch. Pr. 235; Preston v. Carr, 1 McClel. & Y. 457. 30 1 Barbour, Ch. Pr. 236; Small v. Attwood, 1 Younge & C. 37. aiHallett v. Hallett, 2 Paige (N. Y.) 432; Gower v. Baltinglass, Turn. & E. 195, note; Hoffman, Mast. Ch. 11. (407) CHAPTER XXI. AMENDMENT OF PLEADINGS. § 378. In general. /■ In courts of equity, mispleading in matter of form is never allowed to prejudice any party. The real and substantial mer- its of the case are always looked into.^/ In many cases courts of equity will allow substantial defects to be amended if the cause is in such a stage as that they can be properly amended.^ But the court will not relieve a party from the consequences of a mere technical slip, to enable him to take advantage of a sim- ilar slip on the part of his adversary.^ Amendments should not be allowed where they would defeat justice.^ Where new parties are made, both parties should have liberty to amend and modify their pleadings so as to exhibit the case as they may desire respectively to present it.S^ A defendant may amend his pleading, but this is allowed with much more caution than in case of the complainant.jl-' The right of parties to suits in equity to amend the pleadings is frequently regulated by stat- ute or rules of court, and these should be consulted when the occasion arises.'^ 1 Cooper, Eq. PI. 332; Story, Eq. PI. § 883; Seymour v. Long Dock Co., 17 N. J. Eq. 169; Insurance Co. of North America v. Svenasen, 74 Fed. 346; Huffman v. Hummer, 17 N. J. Eq. 269; Field v. Middlesex Banking Co., 77 Miss. 180, 26 So. 365. 2 Story, Eq. PI. § 882. 2Ridabock v. Levy, 8 Paige (N. Y.) 197, 35 Am. Dec. 682. 4 Calloway v. Dobson, 1 Brock. 119, Fed. Cas. No. 2,325. 5 Dabney v. Preston's Adm'rs, 25 Grat. (Va.) 838. 6 Story, Eq. PI. § 894. 7 Illustrative of such provisions are United States Equity Rules 28-30, 35, 60; Rev. St. 111. c. 22, § 37; Id. c. 7. (408) Ch. 21] AMENDMENT OF PLEADINGS. § 381 § 379. Right of defendant to require amendment. It is held that a defendant has no right to have the complain- ant amend his bill, nor is it proper to require him to do so, to expose defects, or supposed defects, in his case, on motion of ' the defendant.® § 380. Court cannot, on its own motion, amend pleadings. It is said that though the court may suggest, or even direct, an amendment, it cannot, ex mero motu, amend the pleadings or eliminate any part thereof.* § 381. Discretion of court as to amendments. ^ The amendment of pleadings in equity is in the discretion of | the court.-^" The court may allow such amendments at any \ stage of the proceedings.^^ Pleadings in equity cannot be 8 Phelps V. Elliott, 26 Fed. 881. It is held that at the request of the' adverse party, and to remove all danger of his heing made liable a second time, the original pleading on file will, at the hearing, be amended by conforming it to the true date. Ontario Bank v. Scher- merhorn, 10 Paige (N. Y.) 109. 9 Caldwell v. King, 76 Ala. 149. See Farmers' & Mechanics' Bank of Michigan v. Griffith, 2 Wis. 443. loMcDougald v. Williford, 14 Ga. 665; March v. Mayers, 85 111. 177; Tanner v. Hicks, 4 Smedes & M. (Miss.) 294; Richmond v. Irons, 121 U. S. 47; Haskell v. Brown, 65 111. 29; Calvert v. Carter, 18 Md. 73; Huffman v. Hummer, 17 N. J. Eq. 269; Leach v. Ansbacher, 55 Pa. 85. "In reference to amendments of equity pleadings, the courts have found it impracticable to lay down a rule that would govern all cases. This allowance must, at every stage of the cause, rest in the discre- tion of the court; and that discretion must depend largely on the special circumstances of each case; It may be said generally that, in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. Undoubtedly, great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious incon- venience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the par- ties have directed their proofs." Hardin v. Boyd, 113 XJ. S. 756; Unit- ed States V. American Bell Telephone Co., 39 Fed. 716. 11 'Truly V. Lane, 7 Smedes & M. (Miss.) 325; Grange Warehouse (409^ § 381 EQUITY PLEADING AND PRACTICE. [Ch 31 amended without leave of court, and applications to amend are not grantable of course.-^^ An amendment "will not be permit- ted where the court is satisfied that the hill as proposed to be amended cannot he substantiated;^^ nor where no relief could be obtained under it if allowed;^* nor where the amendment simply states conclusions of law or immaterial matters.^ ^ Ass'n V. Owen, 86 Tenn. 355, 7 S. W. 457; Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Jefferson Co. v. Ferguson, 13 111. 33. It is held that it is discretionary with the court to grant leave to amend in the following cases: To amend an answer after a master's report has been filed and the cause heard on exceptions thereto. Hudson v. Randolph, 23 U. S. App. 681, 66 Fed. 216. After the depositions are published and the case is ready for hearing. Pinkston v. Taliaferro, 9 Ala. 547. To amend an answer in case of interpleader after the testimony has been published, by consent, without prejudice. Lanier v. Driver, 24 Ala. 149. When the cause is pending and the issues joined. Boyd v. Clements, 8 Ga. 522. To amend a bill after hearing, and after the court has announced what its decision will be, and has directed counsel to draw up a decree in accordance therewith, even though no affidavit is filed in support of the motion to amend. Booth v. Wiley, 102 111. 84. See Sawyer v. Campbell, 130 111. 186, 22 N. E. 458. To amend a bill after a decree nisi. Lytle v. Breckenridge, 3 J. J. Marsh. (Ky.) 663. To amend an answer after the case has been finally heard and decided, and on appeal the decree has been reversed, and the cause remanded, on such showing as relieves the applicant from the impu- tation of laches, and convinces the court that the amendment is nec- essary to the end of justice. Hanserd v. Gray, 46 Miss. 75. To amend the bill after the defendant allows it to be taken pro confesso. Scott V. Davis, 9 Rich. Bq. (S. C.) 38; Wilson v. Waterman, 6 Rich. Eq. (S. C.) 255. See, also, as to amendments: Gordon v. Reynolds, 114 111. 118, 28 N. E. 455; Briggs v. Briggs, 20 Mich. 34; Walker v. Brown, 45 Miss. 615; Bell's Adm'r v. Hall, 5 N. J. Eq. 49; Midmer v. Mid- mer's Ex'rs, 26 N. J. Eq. 299. For federal practice relating to amend- ments after appeal, see Post v. Beacon Vacuum Pump & Electrical Co., 50 tJ. S. App. 271, 89 Fed. 1. i2Bondurant v. Sibley's Heirs, 37 Ala. 565; Walsh v. Smyth, 3 Bland (Md.) 9; Baker v. Baldwin, 1 R. I. 489; Caster v. Wood, Baldw. 289, Fed. Cas. No. 2,505; Georgia Railroad & Banking Co. v. Milnor, 8 Ga. 313; Roberts v. Stigleman, 78 111. 120; Thomas v. Visitors of Frederick County School, 7 Gill & J. (Md.) 369; Hammond v. Place, Har. (Mich.) 438; Luce v. Graham, 4 Johns. Ch. (N. Y.) 170. "Porter v. Cain, McMul. Eq. (S. C.) 81. i*Tutwiler v. Atkins, 106 Ala. 194, 17 So. 394; Thurmond v. Clark, 47 Ga. 500. 15 Gale V. Harby, 20 Fla. 171; Johnson v. Worthy, 17 Ga. 426. (410) Ch. 21] AMENDMENT OF PLEADINGS. § 383 § 382. Power to impose conditions. When amendments are allowed, such allowance should be on such terms as will not injure others.-^ y^ Generally the court has j a discretionary authority to prescribe the terms on which plead- j ings may be amended.^ '^ Such condition is usually the pay- | ment of costs.-' ^/'On allowing an amendment to conform the ' bill to the proof, the court may impose any conditions not un- reasonable in themselves.^® Where a party, by a slip, has lost the opportunity t,o set up a mere technical or unconscientious defense, and comes to the court for a favor which is necessary to enable him to set up such a defense, the court will require him to do equity as a condition of granting the favor asked.^* § 383. Amendment of the bill. Any imperfection in the form of a bill may, as a general rule, be remedied by amendment, as occasion may require, if application for that purpose be made in due time.^^ If a bill does not contain such material facts, or make all such persons parties, as are necessary to enable the court to do complete jus- tice, the complainant may alter it by inserting additional mat- 16 McDougald v. Dougherty, 11 Ga. 570. 17 Rives V. Walthall's Ex'rs, 38 Ala. 329; Heeren v. Kltson, 28 111. App. 259; Boehme v. Rail, 51 N. J. Eq. 541, 26 Atl. 832; Stevens v. Bosch, 54 N. J. Bq. 59, 33 Atl. 293; Vilas v. Jones, 10 Paige (N. Y.) 77. 18 Rogers v. Moor, 1 Root (Conn.) 472; French v. Shotwell, 4 Johns. Ch. (N. Y.) 505. i9Neale v. Neales, 9 Wall. (U. S.) 1. 20 Hartson v. Davenport, 2 Barb. Ch. (N. Y.) 77; Post v. Boardman, Clarke, Ch. (N. Y.) 523; Vilas v. Jones, 10 Paige (N. Y.) 76. In Tennessee it is held that it is of course to allow the complainant to amend his bill without costs, on defense made either by plea or an- swer, so as to enable him to shape his pleadings for the better de- velopment of his case, but amendments after replication or the set- ting of a demurrer or plea for hearing will be on terms. Mount Olivet Cemetery Co. v. Budeke, 2 Tenn. Ch. 480, citing Jennings v. Pearce, 1 Ves. Jr. 447, Dipper v. Durant, 3 Mer. 465, 1 Newland, Ch. Pr. 196, and 2 Newland Ch. Pr. 240, 254. 21 Buckley v. Corse, 1 N. J. Bq. 504; McDougald v. Williford, 14 Ga. 665; Home Ins. Co. of New York v. Nobles, 63 Fed. 641. (411) § 384 EQUITY PLEADING AND PRACTICE. [Ch. 21 ter subsisting at tlie time of filing the bill, of which he was not then apprised, or which he thought not necessary to be stated, and he may add such persons as shall be deemed necessary parties; or in case the bill is found to contain matters not relevant, or the names of parties who may be dispensed with, the bill may be amended by striking out such matter or par- ties. ^^ Amending the bill may be useful for various purposes, — for the correction of mistakes, or for the suppression of im- politic admissions in the original statements, or for adding new parties, or for inquiring into additional facts, or for the further investigation of facts which have been only partially disclosed, or for putting in issue new matter stated in the answer.^^ The original bill, thus added to or altered, is termed an "amended bill."24 § 384. Amending sworn bills. ^ Where the bill has been sworn to, amendments are allowed with great caution.^^ But it is proper practice to allow a sworn bill to be amended to prevent the failure of justice.^- As a rule, no amendments can be made to a sworn bill, except such as are merely in addition to the original bill, and consistent therewith, and they must be made by introducing a supple- mental statement, and without striking out any part of the bill.^^ The application should be accompanied by affidavits showing how the mistake occurred. ^V The fact that a bill is 22 1 Barbour, Ch. Pr. 206; Walker v. Hallett, 1 Ala. 379; Downing v. Bacon, 7 Busli (Ky.) 680. 23 Story, Bq. PI. § 884; Walker v. Walker, 3 Ga. 302; McDougald v. Willlford, 14 Ga. 665; Downing v. Bacon, 7 Bush (Ky.) 680; Larkins v. Biddle, 21 Ala. 252; Coffman v. Sangston, 21 Grat. (Va.) 263; Butler V. Butler, 4 Litt. (Ky.) 201. 21 1 Barbour, Ch. Pr. 206. 25 Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46. 26 Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N. E. 238; Thomas v. Coultas, 76 111. 493. 27 Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46. 2s Swift V. Bckford, 6 Paige (N. Y.) 22. (412) Ch. 21] AMENDMENT OF PLEADINGS. § 384 verified by oath does not necessarily deprive the complainant of the benefit of an amendment in order to amplify his statement or state additional facts. ^® A complainant making application to amend the sworn bill after the answer of the defendant is filed must show that the proposed amendment contains matter im- portant to his rights, and which was unknown to him at the time of filing his original bill, or else he must show a special reason which will excuse him from negligence.^'' Chancellor Kent allowed an injunction bill to be amended as of course, after the answer had been excepted to as insufficient, by insert- ing additional statements and charges, without prejudice to the injunction, and without costs, but refused to allow amendments by striking out or altering any part of the bill without due notice of the motion, accompanied by an affidavit stating the precise amendments asked for.^^ Where a bill for stating a partnership account also prayed for an injunction, and for that reason was sworn to, it was held that the allowance after replica- tion of a material amendment, which related solely to the basis on which the account was to be stated, and which did not change the equities of the parties in respect to the injunction, was not a ground of reversal.^v Where a bill is not required by law to 1 be sworn to, the fact of its being sworn to will perform no office | and will be disregarded, and the bill may be amended, the same ■ as if it were not sworn to.^^ An amendment to a bill for in- junction need not be verified by affidavit where the allegations of the amendment relate to matters other than the relief sought by the injunction, and are not necessary to warrant the grant- ing of the same.^* 29 Marble v. Bonhotel, 35 111. 240. 30 Everett v. Winn, Smedes & M. Ch. (Miss.) 67, citing Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Whitmarsh v. Campbell, 2 Paige (N. Y.) 67. siRenwick v. Wilson, 6 Johns. Ch. (N. Y.) 81. See Walker v. Walk- er, 3 Ga. 302; Sharp v. Ashton, 3 Ves. & B. 144. 32 Gregg v. Brower, 67 111. 525. 33 Campbell v. Powers, 139 111. 128, 28 N. E. 1062. 34 Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N. E. 238. (413) § 385 EQUITY PLEADING AND PRACTICE. [Ch. 21 § 385. Matters arising since the filing of tlie bill. Facts wliicli have occurred since the filing of an original bill ought not to be introduced by amendment, because, as the amendments are held to constitute part of the same record as the original bill, which can only relate to facts which had oc- curred previous to the time when it was preferred, the intro- duction of matters of a posterior date would render the record incongruous. , /flatter, therefore, which has occurred since the original bill was filed, should be brought before the court by supplemental bill, and not by amendment.^y?' In some cases the court will suffer matters which have occurred since the filing- of the original bill to be introduced by amendment; as, for example, where the complainant has an inchoate right at the time of preparing his original bill, and which merely reqtiires some formal act to render his title perfecj^^^and such formal act is not completed until afterwards, the introduction of that fact by amendment will be permitted. The case of an executor fil- ing a bill before probate, and afterwards obtaining probate, is an instance of this kind.^® Where a foreign executor files a bill in ISTew York, and afterwards takes out letters testamentary, that he has done so may be stated in an amendment to the bill.*^ Where a bill is filed for the sale of a reversion, and thereafter a homestead expires, the bill may be amended so as to charge this fact, and pray for a sale of the entire estate.^* It is held 3=1 Barbour, Ch. Pr. 207; Vere v. Glynn, 2 Dickens, 441; Jopling V. Stuart, 4 Ves. 619; Camp v. Bancroft, 26 Ga. 393; Hammond y. Place, Har. (Mich.) 438; Wright v. Frank, 61 Miss. 32; Hope v. Brinck- erhoff, 4 Edw. Ch. (N. Y.) 660; Planters' & Merchants' Mut. Ins. Co. V. Selma Sav. Bank, 63 Ala. 585; Hurd v. Everett, 1 Paige (N. Y.) 124; Mason v. Hartford, P. & F. R. Co., 10 Fed. 334; Bannon v. Comegys, 69 Md. 411, 16 Atl. 129. 30 1 Barbour, Ch. Pr. 207; Humphreys v. Humphreys, 3 P. "Wms. 3ii; Totten V. Nighbert, 41 W. Va. 800, 24 S. E. 627; Swatzel v. Arnold, Woolw. 383, Fed. Cas. No. 13,682; Black v. Henry G. Allen Co., 42 Fed. 618. See supra, § 17. 37 Buck v. Buck, 11 Paige (N. Y.) 170, citing 1 Barbour, Ch. Pr. 207. 38 Hanby's Adm'r v. Henritze's Adm'r, 85 Va. 177, 7 S. E. 204. A bill which is insufficient in itself is not aided by an amendment stat- ing facts -which may or may not be subsequent in time to the filing of (414) Ch. 21] AMENDMENT OP PLEADINGS. g 386 tliat an amendment may be allowed touching matters occnrring after the filing of the bill, no answer having been filed ; and the allowance thereof cannot be objected to by a defendant as to whom the bill has been taken for confessed. ^y Where the de- \ fendant, in his answer, states facts which have taken place since the bill was filed, the coiirt will permit snch facts to be incor- porated into the bill by amendmentV But an amendment of the bill is not necessary to enable the complainant to avail himself of such facts at the hearing, as the replication puts all the facts stated in the answer completely at issue between the parties. *° § 386. Amending after answer. The discontinuance of the use of special replications fre- quently renders it necessary for a complainant, wishing to avoid the effect of matter pleaded in bar, to amend his bill.*^ Thus, where the allegation of a bill is that a deed of release, executed by the distributees of an estate to one of its debtors, is inopera- tive, by reason of fraud or mistake, and the defendant sets up a release from the administrator, the latter, if proved, is a com- plete bar, unless the bill is so amended as to impeach its valid- ity.*^ The usual way of meeting a special defense by the method of avoidance is to introduce the defense, in the form of a pretense, in the bill, and then follow it by matter in reply in the shape of a charge; and, when the bill is not so framed originally as to afford a proper reply to such defense, the course is to amend it so that it will do so.*^ the bill. Nichols v. Rogers, 139 Mass. 146; Evans v. Bagshaw, L. R. 8 Eq. 469, 5 Ch. App. 340; Tonkin v. Lethbridge, Coop. 43. 39 Luft V. Gossran, 31 111. App. 530, citing Story, Eq. PI. § 885. ioi Barbour, Ch. Pr. 207; Knight v. Matthews, 1 Madd. 566; Attwood V. , 1 Russ. 355; Seeley v. Boehm, 2 Madd. 176. ill Barbour, Ch. Pr. 250; Foley v. Hill, 1 Phil. Ch. 399; Stafford V. Brown, 4 Paige (N. Y.) 88; Commissioners of Highways v. Deboe, 43 111. App. 25; Spencer v. Van Duzen, 1 Paige (N. Y.) 555. See supra, § 356. 42 Beattie v. Abercrombie, 18 Ala. 9 ; James v. McKernon, 6 Johns. (N. Y.) 543. 43 Connerton v. Millar, 41 Mich. 608, 2 N. W. 932, citing Adams, Eq. 303, 304; Foley v. Hill, 1 Phil. Ch. 399; James v. McKernon, 6 Johns. (415) § 388 EQUITY PLEADING AND PRACTICE. [Ch. 21 § 387. Conforming allegations to proof. Where a ease for relief is made out, but is not disclosed by the bill, the court may allow the bill to be amended so as to con- form to the case proved.''* Application for leave to amend so as to make the bill conform to the proofs should be made promptly,*® and before final decree.** § 388. Amendment making new case. It is a general rule that a bill cannot be so amended as to introduce new matter and to entirely change the original pur- poses of the suit.*'^ The rule that the complainant will not be permitted to abandon the entire case made by his bill, and make a new and different case by way of amendment, has been much trenched upon.*?-'" To render the allowance of an amendment improper, there must be an inconsistency or repugnancy between (N. Y.) 543; Van Riper v. Claxton, 9 N. J. Eq. 302. See supra, §§ 74, 356. "Neale v. Neales, 9 Wall. (U. S.) 1; Hardin v. Boyd, 113 V. S. 756; Hoyt V. Smith, 27 Conn. 468; Mix v. People, 116 111. 265, 4 N. E. 783; Babcock v. Twist, 19 Mich. 516; Bellows v. Stone, 14 N. H. 175; Clark V. First Congregational Soc. in Keene, 46 N. H. 272; Midmer v. Mid- mer's Ex'rs, 26 N. J. Bq. 299; Lamb v. Cecil, 25 W. Va. 288; Lamb v. Laughlin, 25 W. Va. 300; Brayton v. Jones, 5 Wis. 117; Patton v. Dixon, 105 Tenn. 97, 58 S. W. 299. 45 Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299. 46 Winter v. Merrick, 69 Ala. 86. *7Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46; Shields v. Barrow, 17 How. (U. S.) 130; Carey v. Smith, 11 Ga. 539; Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Shenandoah Valley R. Co. V. Griffith, 76 Va. 913; Dickson v. Poindexter, Freem. Ch. (Miss.) 721; Ray's Adm'r v. Womble, 56 Ala. 32; Lamb v. Cecil, 28 W. Va. 653; Hurt v. Jones, 75 Va. 341. It is said that the limit of the power of amendment is that no new cause of action can be engrafted on the original bill. The party may, at law or in equity, shift his ground, if his title and the facts charged will sustain his new ground, and the decree prayed for, or any other consistent decree within his prayer for general relief. The true criterion as to amendment is, did complain- ant so state his cause of action originally as to show that he had a legal right to recover what he subsequently claims? Wilhelm's Appeal, 79 Pa. 120; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402. 48 Belton V. Apperson, 26 Grat. (Va.) 207. (416) Ch. 21J AMENDMENT OP PLEADINGS. g 388 the purposes of the bill as amended and the original bill, as contradistinguished from a modification of the relief asked.**/' An amendment to a bill is material when it so varies the case made in the original bill as to change the complainant's equity.^" There are cases where amendments are permitted at any stage in the progress of the case, as where an essential party has been omitted; but amendments which change the character of the bill, so as to make substantially a new case, should rarely, if ever, be made after the cause is set for hearing, much less after it is heard. ^^ A bill to enforce the lien of a deed of trust, and praying a sale of the land embraced thereby, will not be allowed to be amended and made a bill to recover the amount of a lost bond, and to be further amended into a creditors' suit to settle an estate.^ ^ Where the court had decided, upon a plea to the jurisdiction, that a bill between members of a corporation could not be sustained for want of jurisdiction, it was held that an amendment alleging that the corporation had been dissolved would make a new bill and a new case, and that it could not be allowed.^^ A judgment creditor's bill to redeem land sold at a sheriff's sale cannot be amended so as to make it a bill to en- force a trust alleged to have arisen between the complainant and 49 Cain v. Gimon, 36 Ala. 168. 50 Booth V. Stamper, 10 Ga. 109. siWalden v. Bodley, 14 Pet. (U. S.) 156. See Snead v. McCoull, 12 How. (U. S.) 407; Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258. See for amendments making new case, Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620; Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Piercy V. Beckett, 15 W. Va. 444; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402. The following cases illustrate amendments not changing the cause of ac- tion: A bill asking for reformation of a mortgage and foreclosure thereof may be amended so as to ask for reformation and the removal of a cloud on complainant's title as mortgagee. Hawkins v. Pearson, 96 Ala. 369, 11 So. 304. An amendment to a bill adding parties and a prayer for alternative relief does not make a new bill. Meads v. Hartley, 4 Mackey (D. C.) 391. A bill for specific performance of a contract for the sale of land may be amended so as to make it a bill for the cancellation of the contract. Papin v. Goodrich, 103 111. 86. 52 Piercy v. Beckett, 15 W. Va. 444. 53 Pratt V. Bacon, 10 Pick. (Mass.) 123. (417) Equity— 27 § 389 EQUITY PLEADING AND PRACTICE. [Ch. 21 another judgment creditor, as such an amendment departs en- tirely from the case made by the original bill.^* § 389. Amendment as to parties. Where a bill is defective as to parties, the necessary per- sons should be made parties by amendment.^^ The court will generally, at any time before the hearing, grant leave to amend a bill which is defective as to parties.^® It is held that an amendment which will divest a bill of all of its original defendants, and make a new case against new defendants, is not allowable.®'^ If only one of the parties joined as complainants in a bill be entitled to relief, the court may grant leave to amend the bill by striking out the name of the complain- ant not so entitled.^* A bill may be amended by substituting one of the defendants for the complainant who has no interest in the case, and is not a proper party.°® If an administratrix is made a complainant in a bill with her co-administrators, with- out her consent, and she claims adversely to the prayer of the bill, the court, on motion, will direct her name to be stricken from the bill as a complainant, and inserted as a defendant.®" A bill may be amended by substituting the name of the prin- cipal for that of the agent, inserted by mistake.®^ 54 Ward V. Patton, 75 Ala. 207. ssGayle v. Singleton, 1 Stew. (Ala.) 566; Thomas v. Adams, 30 111. 37; Hunt v. Wickllffe, 2 Pet. (U. S.) 201; Hook v. Brooks, 24 Ga. 175; Hopkins V. Roseclare Lead Co., 72 111. 373; Marsli v. Green, 79 111. 385; Jameson's Adm'x v. Deshields, 3 Grat. (Va.) i. 50 Holland v. Trotter, 22 Grat. (Va.) 136. 57 Leggett V. Bennett, 48 Ala. 380; McKay v. Broad, 70 Ala. 377. 58 Reybold v. Herdman, 2 Del. Ch. 34; Heath v. Brie Ry. Co., 8 Blatchf. 347, Fed. Cas. No. 6,306. ' 50 Smith V. Hadley, 64 N. H. 97, 5 Atl. 717. See supra, § 60. «oMulford V. Allen, 2 N. J. Eq. 288. "If one of the executors or administrators who is a necessary party refuses to join in the suit as a co-complainant, the proper course is to make him a party defendant, stating in the bill the fact that he would not consent to he a complainant in the suit. Thompson v. Graham, 1 Paige (N. Y.) 384; Finch v. Winchelsea, 1 Eq. Cas. Abr. 2; Calvert, Parties, 11, note 3." Tooker v. Oakley, 10 Paige (N. Y.) 288. 01 Jennings v. Springs, 1 Bailey Eq. (S. C.) 181. Where a bill was (418) Ch. 21] AMENDMENT OF PLEADINGS. § 39I § 390. Amendment of prayer. The complainant may amend the title of his bill so as to make it conform to the true character of the case made by it. The prayer of the bill may also be amended so as to enable him to have such relief as the allegations in his bill will entitle him to have.®^ Where special relief is sought in a bill, and not spe- cifically mentioned in the prayer, and the proofs make a strong <;ase for the granting of such relief, equity will order an amend- ment of the prayer, and make a decree in accordance with such amendment.®^ In a suit for specific performance, the court may allow the complainant to amend his bill so as to ask that a rescission of the contract be decreed.®* -^It is held that a bill for relief cannot be converted into a bill for discovery by strik-: ing out the prayer.®^. ^ 391. Amendments making bills multifarious not allowable. If an amendment to a bill would make it multifarious, the application will be refused.*S^''But amendments adding new and necessary parties do not render a bill multifarious.®'' An amendment will not be allowed to a multifarious bill when the bill, as amended, will still be multifarious.®^ filed against respondents as a partnership, when in fact they were a corporation, with the same name as that of the alleged partnership, it was held that the defect might be cured by amendment. Needham V. Washburn, 4 Cliff. 254, Fed. Cas. No. 10,082. For other cases in- .volving amendments as to parties in the federal courts, see Lewis v. Darling, 16 How. (U. S.) 1; Clifford v. Coleman, 13 Blatchf. 210, Fed. Cas. No. 2,894; Insurance Co. of North America v. Svendsen, 74 Fed. 346; Douglas v. Butler, 6 Fed. 228; Conolly v. Taylor, 2 Pet. (U. S.) S64; Anderson v. Watt, 138 U. S. 707. 82Dearing v. Bank of Charleston, 6 Ga. 581; Loggie v. Chandler, 35 Me. 220, 49 Atl. 1059. 63 New York Fire Ins. Co. v. Tooker, 35 N. J. Bq. 408. 64 Ferry v. Clarke, 77 Va. 397. 65 1 Barbour, Ch. Pr. 208; Cholmondeley v. Clinton, 2 Ves. & B. 113. See, for amendment of prayer. Shields v. Barrow, 17 How. (U. S.) 130; Palk v. Clinton, 12 Ves. 66. See post, § 812. 66 Jordan v. Jordan, 16 Ga. 446 ; Linn v. Patton, 10 W. Va. 187 ; Par- sons V. Johnson, 84 Ala. 254, 4 So. 335. 67 Dobyns v. Rawley, 76 Va. 537. 68 Rose V. Rose, 11 Paige (N. Y.) 166. (419) i 393 EQnXT PLEADING AXD PRACTICE. [Ch. 21 i 392. Effect of amendments to bill. As a general mle. the amendment to a biU is eonsideped part of it. and has relation to the time of filing the original bill, and has the same effect as if originally inserted therein,®® and an amendment which introiinces no new subject, bnt only makes more specific the charge brought forward in the original bill, takes effect as of the time of filing the original bill.^" ' Where an amendment sets np a new eqtiity or brings forward a new claim, or a different or distinct gronnd of relief not before as- serted, the lis pendens will begin only with the filing of such amendment ; but, if all the material grounds for recovery wctb stated in the original bill, an amendment will not prevent the iTs pendens from relating back to the original filing."^ 'The rule that an amendment to the bill, if properly allowed, takes effect as of the filing of the original biU, does not obtain where the facts set up in the amendment, which it is claimed remedy the imperfections in the original bill, occurred after that bill was filed, and could not have been embodied in it. '- § 393. Amendment of answer. The right to amend an answer is in many jurisdictions regu- lated by statute or rule of court. Even in the absence of a statute or rule, courts of equity have the power to allow an- swers to be amended. Such power is discretionary with the esHoyt v. Smith, 28 Coniu 466; Carey v. Hlllhonse, 5 Ga. 251; Sarey V. Smith, 11 Ga. 539; Bradish v. Grant, 119 IlL 606, 9 N. E. 332, 11 X. E. 258: Munch T. Shabel, 37 ilich. 166; Lewis v. Lanphere, 79 lU. 1ST; Security Trust Co. v. Tarpey, 66 lU. App. 590. TO Lipscomb v. McClellan, 72 Ala. 151. Ti Xorris v. lie, 152 lU. 190, 38 X. E. 762, 43 Am. St Rep. 233; Mc- Doogald V. Dougherty, 11 Ga. 570; International Bant v. Sherman, 101 U. 3. 403. -i Jones V. ilcPhUUps, S2 Ala. 102, 2 So. 468. In Alabama it is held that, if the complainant intends to present his whole case in the amend- ed bill, he should have stricken out the original bill, or on demurrer both are to be taken as constituting one bill of complaint. Brackln T. Newman, 121 Ala. 3U. 26 So. 3; Taunton v. Melnnish, 46 Ala. 619; Adams T. Phillips, 75 Ala. 461; American Freehold Land Mortgage Co. T. SeweU, 92 Ala. 163, 9 So. 143. (420 I Ch. 21] AMENDMENT OF PLEADINGS. § 393 courtJ^ /'Courts will not easily suffer an amendment to an answer under oath to be made.^^ Where an answer has been prejudicial to a defendant from mere mistake, upon evidence of the mistake an amendment has been permitted.'^^ To war- rant the filing of an amended answer, it should appear that the reasons for it are cogent and satisfactory ; that the mistakes to be corrected or facts to be added are made highly probable, if not certain ; that they are material ; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was filed.'^^ Leave will be granted to amend an answer only where it clearly appears that the amendment is necessary to enable the defendant to bring the merits before the court. '^''^-'^ In general, the indulgence of amend- ment is confined to cases of mere mistake or surprise in the an- s-j^r.'^*^,, A distinction has been made between the admission of a fact and the admission of a consequence in law or in equity. Where a defendant, after the putting in of an answer, discov- ered a ground of defense to the bill of which he was not before informed, namely, a purchase by the person under whom he claimed without notice of the complainant's title, which could only be used by way of defense, and could not be the ground of a 73Foutty V. Poar, 35 W. Va. 70, 12 S. E. 1096; Huffman v. Hummer, 17 N. J. Ea. 269; Smith v. Babcock, 3 Sumn. 583, Fed. Cas. No. 13,008. 74 Cooper, Eq. PI. 336; Story, Bq. PI. § 896. TSMltford & T. PI. & Pr. in Eq. 420; Countess of Gainsborough v. Gifford, 2. P. Wms. 424; Smith v. Babcock, 3 Sumn. 583, Fed. Cas. No. 13,008; Mounce v. Byars, 11 Ga. 180; Vandervere v. Reading, 9 N. J. Eq. 446; Arnaud v. Grigg, 29 N. J. Eq. 1; Ritchie v. McMullen, 47 U. S. App. 470, 79 Fed. 522. TsFoutty V. Poar, 35 W. Va. 70, 12 S. E. 1096; Smith v. Babcock, 3 Sumn. 583, Fed. Cas. No. 13,008; Williams v. Savage Mfg. Co., 3 Md. Ch. 418; Tillinghast v. Champlin, 4 R. I. 128; Matthews v. Dunbar, 3 W. Va. 138; Wyatt v. Thompson, 10 W. Va. 645; Graham v. Skinner, 57 N. C. 94. 77Burgin v. Giberson, 23 N. J. Eq. 403; Huffman v. Hummer, 17 N. J. Eq. 269. TsMltford, Eq. PI. 328; Story, Eq. PL § 896; Mitford & T. PI. & Pr. in Eq. 420; Arnaud v. Grigg, 29 N. J. Eq. 1. (421) §394 EQUITY PLEADING AND PRACTICE. [Ch. 21 bill of review, the court allowed the answer to be taken off the file and new matter to be added, and the answer to be resworn.^* In proceedings upon an answer under oath, where there is a clear mistake, the answer was by the old practice allowed to be taken off the file and a new answer put in; but Lord Thurlow adopted a better course, not taking the answer off the file, but permitting a supplemental answer to be filed, that course leav- ing the parties the full effect of what had been sworn to before, with the explanation given by the supplemental answer.^" To obtain leave to file a supplemental answer, the defendant must state by afiidavit that, when he put in the answer, he did not know the circumstances on which he applies, or any other cir- cumstances upon which he ought to have stated the fact other- wise.^^ No hard and fast rule can be laid dovra relative to the time when the court will allow the answer to be amended. Each case depends very much upon its own merits. The cases are frequently very contradictory.*^ § 394. Matters arising subsequent to filing the answer. -■^ New matter of defense arising after the answer has been filed should be presented by a cross bill.*^, loUittord, Eq. PI. 328; Story, Eq. PI. § 897; Patterson v. Slaughter, Arab. 292. . Amendment to sworn answers will be allowed In cases of mistake, fraud, surprise, and the discovery of new matter, but with great caution and difficulty. There is, however, no general rule, and the ap- plication is made to the discretion of the court, and each case depends very much on its own merits. Martin v. Atkinson, 5 Ga. 390; Burgin v. Giberson, 23 N. J. Eq. 403; Maher v. Bull, 39 111. 531. so Cooper, Eq. PL 338; Story, Eq. PI. § 901; Vandervere v. Reading, 9 N. J. Bq. 446; Burgin v. Giberson, 23 N. J. Eq. 403; Huffman v. Hummer, 17 N. J. Eq. 269; Dolder v. Bank of England, 10 Ves. 284; Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Graham v. Skinner, 57 N. C. 94. 81 Cooper, Eq. PI. 339; Story, Eq. PI. 901. 82 For cases illustrating the right to amend at various periods in the cause, see Calloway v. Dobson, 1 Brock. 119, Fed. Cas. No. 2,325; Eureka Co. v. Edwards, 80 Ala. 250; Burnham v. Huffman, 1 Walk. (Miss.) 381; McRae v. David, 7 Rich. Eq. (S. C.) 375; Flora v. Rogers, 4 Hayw. (Tenn.) 201; Depue v. Sergent, 21 W. Va. 326. 83 Story, Eq. PI. § 393; Taylor v. Titus, 2 Bdw. Ch. (N. Y.) 135; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Burdell v. Burdell, 2 Barb. (422) Ch. 21] AMENDMENT OP PLEADINGS. g 395 § 395. Answer making new defense. Upon the hearing of a caxise, the same indulgence will be granted to a defendant as to a complainant. If it has ap- peared that the defendant has not put in issue facts which he ought to have put in issue, and which he must necessarily put in issue to enable the court to determine the merits of the case, he will be allowed to amend his answer for the purpose of stat- ing those facts.^* Amendments changing the character of the answer, so as to make substantially a new case, should rarely be made after the cause has been set for hearing, much less after it has been heard.®^ It is held that an application to file a sup- plemental or amended answer in which it is proposed to change entirely the character of the defense will be disallowed where there is no mistake in a matter of fact and no newly-discovered facts.*® ISTo hard and fast rule relative to the time when amendments making new or different defenses can be made can be laid down. The matter rests in the discretion of the court.®'^ (N. Y.) 473; Miller v, Fenton, 11 Paige (N. Y.) 18; Ferris v. McClure, 36 111. 77. See supra, § 305. In some cases it has been said that a supplemental answer may be filed. Smith v. Smith, 4 Paige (N. Y.) 432, 27 Am. Dec. 79; Anonymous, Hopk. Ch. (N. Y.) 27; Willis, Bq. PI. 364. It would seem, however, that the proper practice is to raise such a defense by cross bill. Miller v. Fenton, 11 Paige (N. Y. ) 20; Scott V. Grant, 10 Paige (N. Y.) 485. s^Mltford, Eq. PI. 327; Story, Eq. PI. § 902; Smith v. Babcock, 3 Sumn. 583, Fed. Cas. No. 13,008. asWalden v. Bodley, 14 Pet. (U. S.) 156. 86 Graves v. Nlles, Har. (Mich.) 332. See Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Curling v. Townshend, 19 Ves. 628. For construction of United States Equity Rule 60 as affecting amending answer to make new defense, see India Rubber Comb Co. v. Phelps, 8 Blatchf. 85, Fed. Cas. No. 7,025. For form of order allowing supplemental answer to be filed, see Graves v. Niles, Har. (Mich.) 332. 87 Haskell v. Brown, 65 111. 29; Hagar v. Whitmore, 82 Me. 248, 19 Atl. 444. For cases on the question of the time for amending answer to make a new or different defense, see Evory v. Candee, 5 Ban. & A. 67, Fed. Cas. No. 4,582; Central Trust Co. of New York v. Wabash, St. L. & P. Ry. Co., 50 Fed, 857; Goodwin v. McGehee, 15 Ala. 232; Reedy v. Millizen, 155 111. 636, 40 N. >E. 1028; Howe v. Russell. 36 Me. 115; Marsh v. Mitchell, 26 N. J. Eq. 497; Hlgbie v. Brown, 1 Barb. (423) § 397 EQUITY PLEADING AND PRACTICE. [Ch. 21 § 396. Effect of amending answer. The answer to a bill and its amendments constitute but one record.^*/ A defendant to wKom leave is granted to file an amended answer is not to be considered as having put in any answer until the amended answer is filed.** § 397. Amending plea. Where there is evidently a material ground of defense dis- closed in the plea, but owing to some evident slip or mistake the plea has not been correctly framed, the court will exercise a discretion in allowing it to be amended.*" Where a plea which, in substance, showed a defect of parties, instead of stat- ing that additional parties were necessary and naming them, prayed judgment whether the defendant ought to be called upon for further answer, the court, upon the argument, instead of overruling the plea, gave the defendant leave to amend it.*^ Liberty to amend or to plead de novo will only be granted where there is an apparent good cause of defense disclosed by the plea, but, owing to some accident or mistake, it has been informally pleaded.®^ It is said that an amendment of a plea should not Ch. (N. Y.) 320; Cook v. Bee, 2 Tenn. Ch. 343; Jackson's Assignees V. Outright, 5 Munf. (Va.) 308; Elder's Ex'rs v. Harris, 76 Va. 187; Wells V. Wood, 10 Ves. 401; Verney v. Maonamara, 1 Brown Ch. 419; Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Hughes v. Bloomer, 9 Paige (N. Y.) 269. 8s Munch V. Shabel, 37 Mich. 166; Casserly v. Waite, 124 Mich. 157, 82 N. W. 841. 89 White V. Hampton, 9 Iowa, 181. It was held that where a defend- ant admitted a tender or conversations in regard thereto in his an- swer, he could not, in a subsequent amended answer, take back such admissions. Raines v. Jones, 4 Humph. (Tenn.) 490. See, also, Rug- gles V. Eddy, 11 Blatchf. 524, Fed. Cas. No. 12,118. 80 1 Barbour, Ch. Pr. 127; Beames, Pleas in Eq. 321; Stuart v. War- ren, 1 N. Y. Leg. Obs. 293; Dobson v. Leadbeater, 13 Ves. 230; Newman V. Wallis, 2 Brown Ch. 147. 91 Merreweather v. Mellish, 13 Ves. 437; Waters v. Mayhew, 1 Sim. & S. 220; Pope v. Bish, 1 Anstr. 59. 92 Freeland v. Johnson, 1 Anstr. 276, 2 Anstr. 407; Nobkissen v. Hastings, 2 Ves. Jr. 84; Watkins v. Stone, 2 Sim. & S. 560. (424) Ch. 21] AMENDMENT OP PLEADINGS. § 398 be allowed if it has been amended once before.®^ In giving leave to amend, the defendaiit is tied down to a very short time.** § 398. Amendment of demurrers. Demurrers may be amended as to matters of form and sub- stance.*^ If the demurrer is too general, it must be overruled ; but the court has a discretion, if a fair case is made, to give the defendant leave to amend it, and narrow it, upon proper terms.*® 93 1 Barbour, Ch. Pr. 128; NabolD v. East India Co., 1 Ves. Jr. 372. For cases treating of amendments to pleas, see United States v. Ameri- can Bell Tel. Co., 39 Fed. 716; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Murray v. Coster, 20 Johns. (N. Y.) 576; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594; Hogan V. Ashton, 6 Phila. (Pa.) 517; Newman v. Wallis, 2 Brown Ch. 147; Wood v. Strickland, 2 Ves. & B. 150; Jackson v. Rowe, 4 Russ. 524; Freeman v. Bank, Har. (Mich.) 311; Giant Powder Co. v. Safety Nitro Powder Co., 19 Fed. 509; State of Rhode Island v. State of Massa- chusetts, 14 Pet. (U. S.) 210. Two general rules may be traced through all the cases: First, to use great care in allowing amendments of a sworn answer or other pleading; secondly, to consider whether the plea was so defective in substance that an amendment would be of no use, and even in such cases lea,ve has been given to withdraw the plea and file a new one. But, subject to these considerations, courts of equity have always exercised the right to allow amendment of pleas in all cases. Greene v. Harris, 11 R. I. 5, which fully reviews the law relative to amending pleas. Where several pleas are filed by several defendants, through an in- advertence of counsel, without special leave of court, the court may allow them to be taken from the files, with leave to defendant to plead anew, or to file more than one plea. Hogan v. Ashton, 6 Phila. (Pa.) 517. A plea may be allowed to be amended to place before the court an additional fact, unknown to defendant when the plea was filed, and consistent with the defense then made, but it will not be per- mitted to set up facts inconsistent with the original defense. Free- man V. Michigan State Bank, Har. (Mich.) 311. 94 Cooper, Eq. PI. 336; 1 Hoffman, Ch. Pr. 226; Nobkissen v. Hastings, 2 Ves. Jr. 87; Freeman v. Michigan State Bank, Har. (Mich.) 311. 95 Foster, Fed. Pr. § 166; Gregg v. Legh, 4 Madd. 193, 207; Atwill V. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Baker v. Mellish, 11 Ves. 70; Cooper, Eq. PI. 336; Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec. 164. 96 Story, Eq. PI. § 894; Cooper, Eq. PI. 336. (425) §402 EQUITY PLEADING AND PRACTICE. [Ch. 21 Where it is souglit to amend and narrow a demurrer already filed, application should be made before the judgment on the demurrer as it stands, though, even where that was omitted, the court has, after the overruling of the demurrer, upon a proper case granted such leave.^'^ § 399. Amendment of replication. The amendment of a replication may almost always be al- lowed.®^ § 400. Amendment of exceptions. Exceptions to an answer have been permitted to be amended where there has been a mistake.®® § 401. Amendment of cross bill. Cross bills may be amended.^"" A cross bill may be permit- ted to stand over for new parties to be added and brought in.-"*^ § 402. When application to amend bill should be made. A complainant wishing to amend his bill must take the first opportunity, after being made acquainted with the defects in it, to ask leave so to do.^°^ Thus, the complainant, by filing a 97 1 Daniell, Ch. PI. & Pr. (4th Ed.) 584; Baker v. Mellish, 11 Ves. 68. 98 1 Daniell, Ch. PI. & Pr. (4th Ed.) 831, where it is said that any error in the replication except the omission of the names of any de- fendants (in which case, by leave of court, another replication against the omitted defendants must be filed, or the replication withdrawn and another filed) may be corrected by amendment. See, also, Goodyear V. McBurney, 3 Blatchf. 32, Fed. Cas. No. .5,574. 89 Cooper, Eq. PI. 339; Story, Eq. PI. § 901; Dolder v. Bank of Eng- land, 10 Ves. 284. 100 Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank of Chicago, 134 U. S. 276; Hodder v. Kentucky & G. E. Ry. Co., 7 Fed. 793; Kyle v. McKenzie, 94 Ala. 236, 10 So. 654; Nelson v. Dunn, 15 Ala. 501; Jones V. Hillis, 91 111. App. 403. loiWooster v. Cooper, 56 N. J. Eq. 759, 36 Atl. 281; Haberman v. Kaufer, 60 N. J. Eq. 271, 47 Atl. 48. 102 Chattanooga Grocery Co. v. Livingston (Tenn. Ch. App.) 59 S. W. 470; Bank of Michigan v. Niles, Walk. (Mich.) 398; Carey v. Smith, 11 Ga. 539; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Seymour v. (426) Ch. 21] AMENDMENT OF PLEADINGS. S 403 replication to the answer after notice of tlie necessity of an amendment of the bill, precludes himseK from making it after- ward.^"* /' Leave to amend a bill after dismissal thereof is \ error.^^V After final decree the court may, on motion, allow the complainant to amend a merely clerical error in his bill.-^"^ § 403. Mode of applying for leave to amend. Application for leave to amend a pleading should be made ) either by motion or by petition. /If made by petition, the peti- tion should set forth the circumstances which make an amend- ment necessary.^"^ The substance of the proposed amendment should be set forth in the application to amend.^"'' It is proper to refuse to allow a bill to be amended where the nature of the proposed amendment is not shown. ^"^ After a demurrer sus- tained to a bill which is properly sworn to, the complainant seeking to amend should present and submit in writing the pro- posed amendment, supported by affidavit of its truth, and some explanation given of the reason why the matter proposed to be added was not originally inserted.^"® But it is held that it is not necessary that the proposed amendment to a sworn bill Long Dock Co., 17- N. J. Bq. 169; Thorn v. Germand, 4 Jolins. Ch. (N. Y.) 363; Moshier v. Knox College, 32 111. 155; Blair v. Harrison, 57 Fed. 257; Hoofstitler v. Hostetter, 172 Pa. 575, 33 Atl- 753; Holland V. Trotter, 22 Grat. (Va.) 136; Edward P. AUis Co. v. Wlthlacoochee Lumber Co., 105 Fed. 680; Johnston v. Grosvenor, 105 Tenn. 353, 59 S. W. 1028. 103 vermilyea v. Odell, 4 Paige (N. Y.) 121. io4Blston V. Drake, 5 Blackf. (Ind.) 540; Emory v. Keighan, 88 111. 516; Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720; Ringgold v. Emory, 1 Md. 348; Guyer v. Wilson, 139 111. 392, 28 N. E. 738. 105 Donnelly v. Bwart, 3 Rich. Eq. (S. C.) 18; Wallis v. Thomas, 7 Ves. 292 ; Spearing v. Lynn, 2 Vern. 376. 106 Walsh V. Smyth, 3 Bland (Md.) 9. 107 Graham v. Skinner, 57 N. C. 94; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Freeman v. Michigan State Bank, Har. (Mich.) 311; Hewett V. Adams, 50 Me. 271. 108 Campbell v. Powers, 139 111. 128, 28 N. E. 1062. 109 Campbell v. Powers, 139 111. 128, 28 N. B. 1062; Jones v. Kenni- cott, 83 111. 484. (427) § 404 EQUITY PLEADING AND PRACTICE. [Ch. 21 should be first presented to the court in writing and verified bj affidavit, where the evidence already taken before the court is sufiicient to support the motion for leave to make such amend- ment.-^-"' A motion to amend a sworn answer must be made on notice and be supported by affidavits. -^^-^ Oh application for leave to amend an answer, if relief be sought from an admission of law, it may be sufficient to show that the defendant was er- roneously advised by his solicitor in that regard, but, where the relief sought is from an admission of fact, it should be shown that the answer was drawn with care and attention, stating on information and belief such facts as were not within the defendant's own knowledge, and also that the fact misstated was not within the defendant's own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer honestly believing such erroneous information.^ ^^ On motion to amend, the court considers, not only the affidavits sup- porting and opposing such motion, but any other facts appear- ing from the pleadings and record.-'^* § 404. Eorm of petition for leave to amend. [Title of court and cause, and address to the court.] The petition of the above-named complainant respectfully sho-ws that the defendant in this cause has caused his appearance to be entered therein, and has put in his ans-wer to the bill of complaint, and that your petitioner has filed a replication, but no -witnesses have been ex- amined by either party; that since the filing of said replication your petitioner has been advised by his counsel, and believes, that it is es- sential to the rights of your petitioner in this cause that the bill herein should be amended by adding thereto the folio-wing statements: [In- sert matter proposed to be introduced.] And your petitioner further sho-ws that he had no knovcledge of the 110 Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N. B. 238. "While the proper way is to present a proposed amendment when leave to file it is asked, yet the court, in its discretion, may give leave to amend at a future time. McFarland v. Claypool, 128 111. 397; Johnson v. Glover, 19 111. App. 585. 111 Huffman v. Hummer, 17 N. J. Eq. 269. ii2Maher v. Bull, 39 111. 531. 113 Chattanooga Grocery Co. v. Livingston (Tenn. Ch. App.) 59 S. W. 470. (428) Ch. 21] AMENDMENT OF PLEADINGS. § 406 facts above stated, nor was he aware of the necessity of inserting them in his bill, until after the said replication was filed. Your petitioner therefore prays that he may be at liberty to with- draw his said replication and amend his bill by adding parties de- fendant or otherwise, as he shall be advised, on payment of costs. Petitioner. [Add verification as in bill.] § 405. Form of 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, against the de- fendant, on the day of , A. D. , to which the de- fendant has appeared and put in his answer, upon which your peti- tioner is advised to make E. F. a party to thiS cause, and to bring him before the court as a defendant to the suit. Your petitioner therefore prays that he may have leave to amend his bill by adding the said E. F. as a defendant thereto, with apt words to charge him. Petitioner. [Add verification.]!!* § 406. How amendments are made. The amendments should be distinctly shown, so that they may be easily perceived. Where a bill is amended, the amendments are either to be made by interlineations, or by insertions in the margin, if short, or by being separately engrossed and annexed to the original bill. If the amendments be of such a natiire as to require the original bill to be re-engrossed, they should be then designated in some way sufficient to point them out to the defendant.^ ^^ It is said that, by annexing the en- grossed amendments to the original bill, and by referring, in that part of the bill where the amendments should have been 114 Petitions to amend answers, pleas, and other proceedings may be easily framed by using the preceding forms as models, and making the necessary changes in verbiage. 115 Luce V. Graham, 4 Johns. Ch. (N. Y.) 170; "Willis v. Evans, 2 Ball & B. 225; Peirce v. West, 3 Wash. C. C. 354, Fed. Gas. No. 10,910; Walsh v. Smyth, 3 Bland (Md.) 9; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. (429) §406 EQUITY PLEADING AND PRACTICE. [Ch. 21 inserted, to the annexed amendments, and by referring at each amendment to the proper place of its insertion in the original hill, the record will be kept from being defaced, and all the requisite certainty and convenience will be obtained.^^® Where leave is given to amend the bill, the amendment should state only so much of the original bill as may be necessary to intro- duce and to make intelligible the new matter.^ ^^ It was held, under the JSTew York chancery practice, that if a party thought proper to file or serve an entire new bill, incorporating the orig- inal matter with the amendments, he must distinctly mark and designate the amendments, so that the defendant and the court might see what they were.'^^* Where a bill is amended, and the amended bill contains allegations directly contrary to the alle- gations in the original bill, the proper course is to strike out such contradictory allegations in the original bill.^-'^ It is im- proper to incorporate in an answer to an amended bill the whole matter of the former answer.-'^'' Neither an agreement between solicitors that an amendment may be made, nor an order giving leave to amend, amounts to an amendment, even if filed in the cause.^^^ Where leave is given to amend an answer, a new answer, with the amendments added, must be made and filed, or the original answer withdrawn by leave of court and the amendments added, or the amendments must refer to the portions of the answer on file intended to be amended, specify- 116 Luce V. Graham, i Johns. Ch. (N. Y.) 170; Bennington Iron Co. V. Campbell, 2 Paige (N. Y.) 159. Chancellor Walworth said that, if it was necessary to attach the amended hill to the original bill on file, it was the business of the clerk to do it, but that in point of fact it was seldom done, as all the papers in the case were usually placed together in the same bundle, without sealing the original bill and the amendments together, where there had been a re-engrossment of the whole bill. Hunt v. Holland, 3 Paige (N. Y.) 78. 117 Peirce v. West, 3 Wash. C. C. 354, Fed. Cas. No. 10,910. lis Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. 119 Milton V. Hogue, 39 N. C. 415. 120 Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. 121 Wilson V. King, 23 N. J. Eq. 150. (430) 'Ch. 21] AMENDMENT OP PLEADINGS. g 493 ing their nature and application.^ ^^ The title of further an- swers must correspond with the order under which they are put in.^^^ An amended answer presenting only matter which is immaterial should be rejected.^ ^* § 407. Verification of amended pleadings. Where the original bill was sworn to, it is held that the com- plainant must also swear to the truth of the proposed amend- ment.-^^° An amendment to a bill for injunction need not be verified where the allegations of the amendment relate to mat- ters other than the relief sought by the injunction, and are not necessary to warrant the granting of the same.-^^® § 408. Form of 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 hill, 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 122 Mason v. Detroit City Bank, Har. (Mich.) 222. The proper method of amending an answer is to incorporate any amendment which the court sanctions into a supplemental answer to be verified by oath. It is improper to amend by interlining other words in the original answer. Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659. 123 Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. 124 McKay v. McKay's Adm'rs, 33 W. Va. 724, 11 S. E. 213. 125 Gregg V. Brower, 67 111. 525; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46; Carey v. Smith, 11 Ga. 539; Walker v. Ayres, 1 Iowa, 200; Mc- Dougald V. Dougherty, 11 Ga. 570. In Georgia it is held that it is not an abuse of the discretion of the court to require amendments to a sworn bill to be themselves sworn to (Semmes v. Boykin, 27 Ga. 47), and that a sworn bill might be amended in its prayer, and by adding a new party complainant, without swearing to the amendment (Liv- ingston V. Marshall, 82 Ga. 281, 11 S. E. 542). In Illinois it is held that the rule requiring a material amendment to a bill originally sworn to, also to be sworn to, has not been relaxed, notwithstanding liberal statutory provisions for amendments, but that in mere matter of form the rule will be relaxed. Gregg v. Brower, 67 111. 530. 126 Bauer Grocer Co. v. Zelle, 172 111. 407, 57 N. E. 238. (431) § 410 EQUITY PLEADING AND PRACTICE. [Ch. 21 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 be inserted.] Third. Strike the names of J. H. and D. T. out of the seventh line of the fourth page. C. D., E. F., Complainant. Solicitor for Complainant. [Add verification if necessary.] 127 § 409. Order to amend. It is said that an order granting leave to amend should al- ways be obtained. It is held that suchj order should state the new matter to be inserted,^^^ and that new matter not allowed by the order, but stated in the amended pleading, will warrant the striking from the files of the amendment.^^^ § 410. Form of order granting leave to file amendment to bill. ^ [Title of court and cause.] This cause coming on this day to be heard on the verified petition of J. D., 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 E. F., 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. 127 The form of amendment to an answer can be framed from the foregoing form. 128 1 Daniell, Ch. PL & Pr. (4th Ed.) 410; Foster, Fed. Pr. (3d Eq.) § 168; Roberts v. Stlgleman, 78 111. 120. Where, on sustaining exceptions to an answer, an order is made granting the defendant leave generally to file an amended answer, to which complainant assents, he cannot afterwards object that the order did not specify the particular amendment to be made, or authorize an amendment setting up a new case. Stokes v. Farnsworth, 99 Fed. 836. See Fulton County Sup'rs v. Mississippi & W. R. Co., 21 111. 337. 129 Strange v. Collins, 2 Ves. & B. 163. It is held to be not proper to rule a party to plead to an amendment not on file, and which may never be filed. Ridgely Nat. Bank of Springfield v. Fairbank, 54 111. App. 296. (432) Ch. 21] AMENDMENT OF PLEADINGS. § 412 § 411. Form of order for leave to amend answer. [Title of court aad cause.] This cause coming on this day to be heard, on motion of A. B., so- licitor for Richard Roe, the defendant, asking that the prayer of the verified petition of said Richard Roe, praying leave to amend the an- swer of the said defendant, Richard Roe, he granted, and the com- plainant being present in court by G. B., his solicitor, and the court being fully advised in the premises. It is ordered that the said defendant be, and he is hereby, allowed to amend his answer to the bill of complaint herein, as follows [here insert the proposed amendment, or, if amendment by interlineation is desired, insert, "and that (designate the person) make such interlinea- tions"], in accordance with the petition of said defendant herein filed. § 412. Proceedings upon amended bill. By the English practice, when the amendment simply intro- duced new defendants, they alone had to be served with a new subpoena ;^^'' for, if a bill was substantially amended by the addition of new charges, a subpoena to answer the amendments was required to be served upon all the defendants.-'^// An amend- ment to a bill, however trivial and unimportant, unless it ap- pears that the amendment is a mere matter of form which can- not alter the rights of the defendant, authorizes a defendant, though not required to answer, to put in a new answer, making an entirely new defense, and even contradicting his former an- swer.^^^ On the amendment of a bill, after a plea thereto has been disallowed, the defendant may put in a new plea to the 130 Foster,. Fed. Pr. § 165; Beach, Mod. Eq. Pr. § 154; Lawrence v. Bolton, 3 Paige (N. Y.) 294; Equitable Life Assur. Soc. v. Laird, 24 N. J. Eq. 319. 131 Foster, Fed. Pr. § 165; Cooke v. Davies, Turn. & R. 309; Bramston v. Carter, 2 Sim. 458. See 1 Smith, Ch. Pr. 306. See, also, Stanley v. Bond, 6 Beav. 420. 132 Lube, Eq. PL 88, 91; 1 Daniell, Ch. PL & Pr. (4th Ed.) 409; French v. Hay, 22 Wall. (U. S.) 246; Miller v. Whittaker, 33 111. 386; Richardson v. Richardson, 5 Paige (N. Y.) 58; Burney v. Ball, 24 Ga. 505; Blythe v. Hinckley, 84 Fed. 233; Thompson v. Maxwell Land Grant & Ry. Co., 3 N. M. 269, 6 Pac. 193; Bowen v. Idley, 6 Paige (N. Y.) 46; Trust & Fire Ins. Co. v. Jenkins, 8 Paige (N. Y.) 589; Bosanquet v. Marsham, 4 Sim. 573; Nelson v. Baton, 27 U. S. App. 677, 66 Fed. 376. Where nothing but the name of a new defendant is introduced, (433) Equity — 28 § 412 EQUITY PLEADING AND PRACTICE. [Ch. 21 amended bill.^^^ /Where the complainant amends his bill, he is entitled to a new answer to the new matter.^M One of sev- eral defendants, who has answered to the original bill, need not answer the amended bill, which does not affect his interests in any way.-^®^ The court may, after amendment, refuse leave to file an answer which does not contain a defense to the mat- ter presented by such amendment.^ ^^ It is proper to direct that the answer on file in a given case shall stand as an answer to the bill therein, amended on hearing, unless the amendment is of such a nature as requires a specific answer.^^'^ Where sev- eral defendants have answered an original bill separately, they have not a right to put in a joint answer to amendments to the biU.138 an original defendant is not authorized to answer the amended bill. Salisbury v. Miller, 14 Mich. 160; Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N. W. 841. 13- American Bible Soc. v. Hague, 10 Paige (N. Y.) 549; Bassett v. Salisbury Mfg. Co., 43 N. H. 569. Where the complainant amends his bill in a material matter, a reasonable time should be given defend- ant "Within "Which to plead, ans'wer, or demur, not o'nly to the amend- ment, but to the amended bill. Davis v. Davis, 62 Miss. 818. "V^^hen complainant amends his bill in a material matter, •« -> * the de- fendant may plead, ans'wer, or demur to the same as if it "were an original bill, no matter "what may have been the state of the pleadings before the amendment "was made." Davis v. Davis, 62 Miss. 818, cit- ing 1 Daniell, Ch. PI. & Pr. (5th Ed.) 409; 1 Barbour, Ch. Pr. 224; Bancroft v. Wardour, 2 Bro"wn Ch. 63; Bosanquet v. Marsham, 4 Sim. 573; Cresy v. Bevan, 13 Sim. 354; Dillon v. Davis, 3 Tenn. Ch. 386. isiHagthorp v. Hook's Adm'rs, 1 Gill & J. (Md.) 270, 283. i35 pitzhugh V. McPherson, 9 Gill & J. (Md.) 51; Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N. W. 841. ISO Foster, Fed. Pr. § 165, citing Chicago, M. & St. L. Ry. Co. v. Third Nat. Bank of Chicago, 134 U. S. 276. 13'f Llndsey v. Lindsey, 40 111. App. 389. 138 Bard v. Chamberlain, 5 Ch. Sent. (N. Y.) 73. (434) CHAPTER XXII. INTERLOCUTORY APPLICATIONS, AND ORDERS THEREON. § 413. In general. An interlocutory application is a request made to the court for its interference in a matter arising in the progress of a cause or proceeding.^' It may relate either to the process of the court or to the protection of the property in litigation, pendente lite, or to any matter upon which the interference of the court is re- quired at any time. Such applications are extremely various, and the occasions upon which they may be made are too numer- ous to be here discussed. /They are divided into two classes, — • motions and petitions. When made viva voce to the court they are called "motions." When they are made in writing they are called "petitions. "■'■/^ There is no very distinct line of demarka- tion beiv/een the cases in which they should be made by motion and those in which they should be made by petition. Generally, where any long or indirect statement of facts is required, ap- plication should be by petition. In other cases a motion is suf- ficient.^ § 414. Motions. A motion is an application to the court, either by a party to the proceedings or his counsel, not founded upon any written statement addressed to the court.* In some jurisdictions, a mo- 1 Bergen v. Jones, 4 Mete. (Mass.) 371; Shaft v. Phoenix Mut. Life. Ins. Co., 67 N. Y. 544; 2 Daniell, Ch. PL & Pr. (4th Ed.) 1587; 1 Bar- bour, Oh. Pr. 565. 2 Receiver of State Bank v. First Nat. Bank of Plainfletd, 34 N. J. Eq. 450; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1587; Jones v. Roberts, 12 Sim. 189; Shipbrooke v. Hinchlnbrook, 13 Ves. 394; Heathcote v. Ed- wards, Jac. 504; Garratt v. Niblock, 5 Beav. 143. - People V. Ah Sam, 41 Cal. 645 ; Washington Park Club v. Baldwin, 59 111. App. 61; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1591. It is an applica- (435) § 416 EQUITY PLEADING AND PRACTICE. [Ch. 22 tion is required to be reduced to writing and contain a brief statement of the facts and objects of the motion.* Under the English chancery practice, motions were either of course or special.^ § 415. Motions of course. A motion of course requires no notice, as no opposition will be allowed to it. Under the English chancery practice, al- thoiigh motions of course might be made any day in term, they could not be made out of term, except on a seal day. Such mo- tions are granted without the court being called upon to in- vestigate the truth of any allegation or suggestion upon which they are founded.'^ >' They are applications for an order which will be granted without heai-ing both sides, as a mere matter of routine.^ § 416. Special or contested motions. A special motion is one which it is not a matter of course to grant, but which the court, in the exercise of its discretion, may, on the facts established in support of the application, either grant or refuse. Such motions are either made ex -parte or upon noticCjl^ Orders granted upon motions without notice are said tlon to the court by one of tlie parties in a case, or his counsel, in order to obtain some rule or order of court which he thinks necessary in the progress of the cause, or to give relief in a summary manner in some matuer which would work injustice. 2 Bouvier, Law Diet. tit. "Mo- tion." i Foster, Fed. Pr. § 194. See United States Equity Rule 6. 5 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1591; Poster, Fed. Pr. § 194. 6 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1592. Motions are usually reg- ulated by rule of court, and the distinction between motions of course and special motions, as laid down by the text writers, is largely de- stroyed by such rules, which frequently provide for notice of all mo- tions. 1 Anderson, Law Diet. ; Abbott, Law Diet. ; Pratt v. Rice, 7 Nev. 123. See United States Equity Rule 5; Poster, Fed. Pr. § 195; United States V. Parrott, 1 McAU. 447, Fed. Cas. No. 15,999; Robinson v. Sat- terlee, 3 Sawy. 134, Fed. Cas. No. 11,967. 8 Pratt V. Rice, 7 Nev. 123; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1592; Foster, Fed. Pr. § 196. (436) Ch. 22] INTERLOCUTORY ORDERS. § 417 to be ex 'parte, and the same term is applied to tke motions upon which they are granted. Ex parte special motions must be supported by affidavit, and are uncommon, being usually granted to prevent irreparable injury to the moving party, which would otherwise occur if notice were given. Applications to set aside ex parte orders should be readily granted by the court.® It is impossible to lay down any clear rule defining such motions as may be made ex parte, and distinguishing them from such as require notice.-^** Contested motions are made on notice to the adversary party, where he is afforded opportunity to resist the application. They can only be heard on notice.^ ^ § 417. Who may make a motion. A motion may be made by or on behalf of any party to the record, provided he is not in contempt. ^^ A party in contempt, and until he is purged of it, will not be permitted to ask for the favor of the court, nor to take any aggressive proceeding against his adversary ; but it is his right to take measures to pro- tect himself, and to make fxny raotion designed to show that the order adjudging him in contempt was erroneous. He may move to discharge an order, though in contempt for not obeying it. And if a party may move to set aside or discharge an order as erroneous, to rid himself of contempt, he may, it must follow, 9 Pratt V. Rice, 7 Nev. 123; Foster, Fed. Pr. § 196; 2 Danlell, Ch. PI. & Pr. (4th Ed.) 1599; Hart v. Small, 4 Paige (N. Y.) 551; CoUinson v. , 18 Ves. 353. 102 Daniell, Ch. PL & Pr. (4th Ed.) 1593. 11 Anderson, Law Diet; Sturz v. Fisher, 15 Misc. Rep. 410, 36 N. Y. Supp. 893. Rule '3 of the chancery rules of the circuit and superior courts, respectively, of Cook county, Illinois, provides that contested mo- tions shall be deemed to include all motions relating to the settling of pleadings, for alimony and solicitors' fees, for injunctions upon notice, to dissolve injunctions, for the appointment and removal of receivers, the hearing of exceptions to masters' and receivers' reports, and all other opposed motions, the hearing of which would operate to unduly delay the court in its other duties. 12 Beach, Mod. Eg. Pr. § 555; 2 Daniell, Ch. PI. & Pr. (4th Ed.) lo91; Stone v. Byrne, 5 Brown, Pari. Cas. 209; O'Dell v. Hart, 1 Molloy, 492; Callander v. Painesville & H. R. Co., 11 Ohio St. 516. (437) § 418 EQUITY PLEADING AND PRACTICE. [Ch. 22 take any other course whicli the law allows to a party to estab- lish that it is erroneous, and an appeal or a review of it in an appellate court is such other course.^^ An attachment issued against a party after he has served a notice of motion, but before the motion is made, will not prevent his making it.-'* As a general rule, no motion can be made in a cause by one not a party to it, except that he be made a party ;^^ but a person who is quasi a party to the record, such as a claimant coming in under a decree, or a purchaser of an estate sold by an order of the court, may apply to the court in this manner, though it was formerly considered that he could only do so by petition.^® § 418. Notice of motions. The necessity of giving notice of the motion to an adverse party is usually regulated by statute or rule of court, and varies in the different jurisdictions.'^ The notice of motion is a state- ment in writing of the terms of the motion, which must be served upon the adverse party or his solicitor before the day on which the motion is intended to be made.-'^V It is entitled in the cause in which the application is to be made, and should be correctly addressed to the solicitor of the party intended to be affected, or to the party himself, where he acts in person, or personal service is intended, and be signed by the name of the solicitor of the moving party, or of the party himself, where he acts in person. It must designate the day on which the mo- tion is to be made, which must be one of the days appointed for such motions, unless special leave has been obtained to give the 13 Brinkley v. Brinkley, 47 N. Y. 40. See, also, Johnson v. Pinney, 1 Paige (N. Y.) 646; Rogers v. Paterson, 4 Paige (N. Y.) 450; Lane V. Ellzey, 4 Hen. & M. (Va.) 504; Robinson v. Owen, 46 N. H. 38; Kaehler v. Dobberpuhl, 56 Wis. 497; Freese v. Swayze, 26 N. J. Eq. 437. See post, § 559. 1* Jeyes v. Foreman, 6 Sim. 384. 15 Ross V. Titsworth, 37 N. J. Eq. 333; Beach, Mod. Eq. Pr. § 555; Linn V. Wheeler, 21 N. J. Eq. 231. 16 Thornton v. Fairfax, 29 Grat. (Va.) 669; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1591; Jones v. Roberts, 12 Sim. 189; Portarlington v. Darner, 2 Phillips, 264. 17 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1593. (438) Ch. 22] INTE3RL0CUT0RY ORDERS. § 413 notice of the motion for another day.-'* The notice, however^ though it expresses the day when the motion is to be made, usu- ally adds, "or so soon thereafter as counsel can be heard. "^^ When the motion is to be made by leave of court, the notice should mention that it is to be so made ; otherwise it may be disregard- ed.^" It should state clearly the terms of the order to be asked for, and, where the object is to discharge an order for irregular- ity, it is usual, but not necessary, to state the ground of the ap- plication.^^ It may include several objects, as for the appoint- ment of a receiver, an injunction, and the payment of money into court. ^^ The court will not ordinarily extend the order beyond the notice, and therefore it is usual to add a prayer for general relief, under which other relief, germane to that, a mo- tion for which has been specifically noticed, may be granted.^'' It is also usual to specify before what judge the motion will be made, and what affidavits and other documents will be used in its support.^* All notices of motion for any process of contempt or commitment should be served personally upon the party to be affected by it, unless an order has been previously obtained for substituted service.^® A copy of the papers upon which a special motion is founded must be served upon the adverse party; but if the papers to be used are already in the posses- sion of the party, or are on file, or of record in the court, they may be referred to in the notice, and copies need not be served.^® 18 1 Barbour, Ch. Pr. 570; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1594; Foster, Fed. Pr. § 197. 19 Anonymous, 1 Johns. (N. Y.) 143. See White v. Rockafellar, 45 N. J. Law, 299. 20 Hill V. Rimell, 8 Sim. 632. 212 Daniell, Ch. PI. & Pr. (4th Ed.) 1594. 22 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1595. 23Landis v. Olds, 9 Minn. 90; 1 Barbour, Ch. Pr. 570. 24 Foster, Fed. Pr. § 197. 26 1 Barbour, Ch. Pr. 573; Mullens v. Williamson, 2 Molloy, 380. 26 1 Barbour, Ch. Pr. 573; Brown v. Ricketts, 2 Johns. Ch. (N. Y.) 425. (439) § 420 EQUITY PLEADING AND PRACTICE. [Ch. 22 -By appearance at the hearing, and failure to object to want of due notice, service of notice is waived.^^ § 419. Proof of service of notice. Y After the notice of motion has been served, the party serving ! the same should make an affidavit of the service, to be used when ; the motion is made, in case the party served should fail to ap- pear^ This affidavit should state the time and manner of serv- ice, and should be attached to the original papers and draft of the notice of which copies >vere served, and should refer thereto. A simpler method of proving service than by affidavit is to take an admission, signed by the opposite solicitor or his agent, of service of the copies of affidavits, notice, and other papers, dated a sufficient number of days before the time the motion is to be made, or an admission of due service without the date.^^ i 420. Form of notice of motion, with proof or admission of service. [Title of court and cause.] To L. M., Esq., Chicago, 111., Solicitor for Said Defendant, C. D.: You are hereby notified tliat on Thursday, the 25th day of October, A. D. 1900, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor. Judge M. F. T., in the room usually occupied by him as a court room in said county, 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, Chicago, 111., October 20, A. D. 1900. Yours, etc., C. & F., Solicitors for Complainant. State of Illinois, ) I ss. County of Cook. J G. H., being first duly sworn, deposes and says that he served ^he within notice, and affidavits therein referred to, on C. D., defendant in 2TBlyth V. People (Colo. App.) 66 Pac. 680; Kimbrough v. J. K. Orr Shoe Co., 98 Ga. 537, 25 S. E. 576. 28 1 Barbour, Ch. Pr. 573. (440) Ch. 22] INTERLOCUTORY ORDERS. § 421 the above-entitled cause, by leaving true copies of the same with him [or upon C. D., defendant in the above-entitled cause, by leaving true copies of the same with L. M., his solicitor; or upon C. D., defendant in the above-entitled cause, by leaving true copies of the same with R. S., a person in charge of the office of L. M., the solicitor for the said C. D., in the absence of the said L. M. from said office] on the 20th day of October, A. D. 1900, at the hour of 10 a. m. And further affiant saith not. G. H. Subscribed and sworn to before me this 20th day of October, A. D. 1900. N. M., Notary Public. If the party uj^on whom notice is served admits receipt of a copy, the affidavit may be dispensed with, and the following form used: Received a copy of the within notice and affidavits therein referred to this 20th day of October, A. D. 1900. L. M., Solicitor for Defendant, C. D. 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 20th day of October, A. D. 1900. C. D., Defendant, By L. M., His Solicitor. § 421. Hearing of motions. The day for which motions may be noticed is usually fixed \ by ride of court, and must be observed./ It is iisually the prac- tice of the court, whenever there are any ex parte motions, to give them the preference over such as are opposed. Therefore, as a rule, motions of course are heard before contested motions.^^ Under the former English chancery practice, motions were heard in the order of the rank of counsel; consequently much injustice was done to the less prominent solicitors. This rule was abolished by Lord Mansfield, whose practice in this regard was followed by the court of chancery, and who provided that 20 1 Barbour, Ch. Pr. 574. F'or practice In federal courts on hearing of motions, see United States Equity Rules 3, 4, 6. (441) §421 EQUITY PLEADING AxMD PRACTICE. [Ch. 22 counsel should make but one motion apiece, in rotation, and that if, by chance, the court rose before the whole bar had been gone through, the motions should begin the next morning with him whose turn it was to move at the adjournment. In the United States, counsel commonly make their motions as they may gain tlje recognition of the court, or a motion calendar is made up by the clerk, from which the motions are called and disposed of. In the supreme court of the United States, the attorney general and the solicitor general take precedence.^" The usual course of procedure is for the counsel who makes the motion to read the notice of the motion, with the affidavit or admission of service and the other papers upon which the motion is founded, after which, if there are any other papers to be used upon the other side, they are read by counsel for the opposing party. The coun- sel for the moving party then makes his observations upon the motion, after which the counsel in opposition to the motion is heard. The counsel for the moving party has then the right to reply, which closes the argument. The court then either decides the application or takes the papers for further consideration.^' It is not customary to hear two counsel on the opening of a mo- tion. Where two are employed on the same side, only one opens, ' and the other replies to the opposing counsel.^^ The solicitor preparing papers to make or oppose a motion should be careful that they are not scandalous or impertinent. In an affidavit to oppose a motion, it is scandalous or impertinent to draw infer- ences or state arguments reflecting upon the character, or im- 30 Foster, Fed. Pr. § 198. 31 1 Barbour, Ch. Pr. 574. An exception exists as to the right to reply in injunction cases. Upon an order to dissolve nisi, the complain- ant shows cause, upon the merits, confessed in the answer. Then no reply is allowed, the motion for the order nisi being considered as the application to which the complainant answers by showing cause upon the merits, after which defendant's counsel argues against the cause shown by the complainant. 1 Barbour, Ch. Pr. 574. 32 1 Barbour, Ch. Pr. 574. Except by permission of the court, but one solicitor on each side shall be heard on any motion, demurrer, or interlocutory matter. Rule' 4, Chancery Rules, Circuit and Superior Courts of Cook County, Illinois. 83 1 Barbour, Ch. Pr. 575; Powell v. Kane, 5 Paige (N. Y.) 265. (442) Ch. 22] INTERLOCUTORY ORDERS. § 422 peaching the motives, of the adverse party or his solicitor.^^ Where original papers are used in opposition to a motion which is denied, the party using the papers must file them, so that the adverse party may obtain copies thereof to be furnished to the court on appeal.** The mere absence of counsel for the adverse party at the hear- ing of a motion will not be accepted as equivalent to a consent to the granting thereof.*^ "As a general rule, when a notice of motion is given or an order to show cause is served upon the adverse party, and he neglects to appear to oppose the motion, or to show cause against the relief asked for in the order, the party giving the notice or obtaining the or- der to show cause is only entitled to such relief, by default of the adverse party, as is specified in the notice, or as is stated in such order. * * * J3■^t where such applica- tion is opposed, if the applicant is not entitled to the partic- ular relief asked for, the court, under the alternative clause, may give him such further or other relief as the facts presented to the court entitle him to, under all the circumstances of the case."*^ When the moving party does not appear, his motion will be dismissed.*''' The question of costs upon the hearing is largely dependent upon local regulation. In deciding upon a motion, the court sometimes extends its order to the costs of it; that is, if it denies the motion, it frequently denies it with costs, though it will not give costs, on granting it, unless the costs have been specifically mentioned in the notice of motion. And where costs are asked for by the notice, the motion is made at the peril of paying the costs if the party is unsuccessful.** § 422. Renewal of motion. Where a motion in some interlocutory matter has been once heard and decided on, it cannot be repeated unless on some new 34Bloodgood V. Clark, 4 Paige (N. Y.) 574. 35 Bound V. Soutli Carolina Ry. Co., 46 Fed. 315. 36 Rogers V. Toole, 11 Paige (N. Y.) 212. 37 Foster, Fed. Pr. § 198. 38 1 Barbour, Ch. Pr. 575, 576; Little v. Johnson, 1 Molloy, 234. (443) § 424 EQUITY PLEADING AND PRACTICE. [Ch. 22 ground, or by leave of court. It is not enough that additional evidence is offered by the affidavits of the matter urged in sup- port of the former motion.^^ But the fact of hearing the same matter a second time is proof that the court, either before or at such hearing, gave leave to present the matter anew.*" § 423. Petitions. Petitions are applications in writing for an order of court, stating the circumstances upon which they are founded, and are resorted to whenever the nature of the -application to the court requires a fuller statement than can be conveniently made in a notice of motion.^^ In general, a petition cannot be presented in a cause until the bill is filed. The case of a complainant ap- plying to sue m forma pauperis appears to form an exception to this rule.*3^A petition may be presented by any person, whether a party to the suit or not.*^-^ It is said that petitions are now rarely filed by a party to a cause, since any relief which he desires can usually be obtained equally as well by a motion supported by affidavit containing the allegations which would be necessary in a petition,** but this is a question governed largely by local practice. § 424. Form of petition. The petition must be entitled in the cause in which it is pre- sented. When it is presented in some collateral matter, or there is no suit pending, it is entitled, "In the matter of A. B.," etc. It 3s> Hoffman v. Livingston, 1 Johns. Ch. (N. Y.) 211; Ray v. Connor, 3 Edw. Ch. (N. Y.) 479; Dodd v. Astor, 2 Barb. Ch. (N. Y.) 395; Stacy V. Stephen, 78 Minn. 480, 81 N. W. 391; A. B. Dick Co. v. Wichelman, 109 Fed. 81; Van Duzer v. Caskie, 13 Colo. App. 229, 56 Pac. 986. ■10 Clopton V. Clopton (N. D.) 88 N. W. 562; Harris v. Brown, 93 N. Y. 390. " Shaft v. Phoenix Mut. Life Ins. Co., 67 N. Y. 544; Bergen v. Jones, 4 Mete. (Mass.) 371; 1 Barbour, Ch. Pr. 578; Codwise v. Gelston, 10 Johns. (N. Y.) 508; Shipbrool^e v. Hinchinbrook, 13 Ves. 394'; Dyckman V. Kernochan, 2 Paige (N. Y.) 26. See Poscue v. Lyon, 55 Ala. 44j.. dz Receiver of State Bank v. First Nat. Bank of Plainfield, 34 N. J. Eq. 450. 43 1 Barbour, Ch. Pr. 579. « Foster, Fed. Pr. § 199. (444) Cil, 221 INTERLOCUTORY ORDERS. § 426 states by whom it is presented, and the particulars of the case, and concludes with a prayer that the required order be made.*^ If the applicant is not a party, he should state his residence and description.*® Brevity and form are the two things chiefly to be observed in drawing petitions, to which may be added care to avoid scandal or impertinence, for which a petition, as well as any other proceeding, may be referred.'*^ A petition is usu- ally siibscribed by the party making it, but imless it is for a rehearing or appeal, under the English practice, it is not required to be signed by counsel.** Petitions are usually veri- fied." § 425. Notice of petitions. y All petitions, except those which are of course, require service upon all parties interested.^' This service must be made in the same manner, and the same length of time before presenting the petition, as a notice of motion is required to be served.^" Service of a petition is effected by delivering and leaving with the person served a copy of the petition, and at the same time showing to him the original, unless the court otherwise directs.^-' § 426. Objections to petitions. Objections to the form of a petition may be taken by de- murrer. ^^ It is also said that it is common practice to move to dismiss the petition.^V A demurrer to a petition filed with- in 1 Barbour, Ch. Pr. 580. 46Glazbrook v. Gillatt, 9 Beav. 492; Foster, Fed. Pr. § 202. ii 1 Barbour, Ch. Pr. 580. *8 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1605; Hathaway v. Scott, 11 Paige (N. Y.) 173. ■40 2 Daniell, Ch. Pi. & Pr. (4th Ed.) 1605; Anonymous, Hopk. Ch. (N. Y.) 101; In re Christie, 5 Paige (N. Y.) 242. For forms of peti- tions, see supra, §§ 180, 372, 404, 405, and post, §§ 542, 836, in which are set forth various forms of petitions. 50 1 Barbour, Ch. Pr. 580; Foster, Fed. Pr. § 202. 51 Foster, Fed. Pr. § 202. 52 Gibson, Suit in Ch. § 778; Mitford & T. PI. & Pr. in Eq. 448; Foster, Fed. Pr. § 202. Bs Gibson, Suit in Ch. § 778. (445) § 428 EQUITY PLEADING AND PRACTICE. [Ch. 22 out leave and after answer and submission comes too late; by answering, the defendant waives all objections to tbe form.^* § 427. Answering petition. An adverse party may answer a petition by denying the facts therein stated, or alleging matters of avoidance. Such an answer should be verified by affidavit.^ A party having objection to the form of a petition, who has also a case upon the merits, should be prepared with his afiidavits in opposition to the peti- tion upon the merits, in case the objection to the form should be overruled, as the court will not permit the petition to stand over in order that he may file affidavits except upon terms of his paying the costs thereof.^® § 428. Hearing on petition. The general practice, upon the hearing of petitions, is nearly the same as that upon motions.®^ If, upon the hearing, the petitioner does not appear, the petition will be dismissed, with costs, upon the production of a copy of the petition, with a notice of presenting the same, and of due proof of service there- of.^^ If no one appears in opposition to the petition, an order conformable to its prayer will be made on producing an affidavit of service of the petition and notice upon all parties inter- ested, provided the case justifies the order. ^* The rules with regard to reading affidavits, and the general practice as to evi- dence, upon the hearing of petitions, is substantially the same as upon the hearing of motions. ^° 5-i Newman v. Moody, 19 Fed. 858. 55 Mitford & T. PI. & Pr. in Bq. 448; Gibson, Suit in Ch. § 778. 56 1 Barbour, Cb. Pr. 580; Ex parte Bellott, 2 Madd. 261. In New Jersey, no answer to the petition is required. Beach, Mod. Bq. Pr. § 571, citing Crane v. Brigbam, 11 N. J. Eq. 291; Coxe v. Halsted, 2 N. J. Bq. 311. 57 1 Barbour, Ch. Pr. 580; Beach, Mod. Bq. Pr. § 570; Foster, Fed. Pr. § 202. 58 1 Barbour, Ch. Pr. 580; Beach, Mod. Bq. Pr. § 570. 50 1 Barbour, Ch. Pr. 581; Beach, Mod. Bq. Pr. § 570. 00 2 Daniell, Ch. PL & Pr. (4th Ed.) 1608; Beach, Mod. Eq. Pr. § 570; Jones V. Turnbull, 17 Jur. 851; In re Pickance's Trust, 10 Hare, xxxv. (446) Ch. 22] INTERLOCUTORY ORDERS. § 431 § 429. Definition and nature of an order. An order is a command, direction, or decision of the court on \ some intermediate point or issue in the cause, but without final- I ly disposing of the main issue or issues in the cause. ^^ A de- ' cree is a final judgment in the cause./' An order is an inter- locutory judgment."^ Orders are sometimes desigTiated as "rules." A rule and an order are practically synonymous. ^^ Orders are also sometimes classified as either common, special, or by consent.®* § 430. Common orders. Common orders, which are sometimes designated as "orders of course," are orders to which a party, by the rules and practice of the court, is entitled of course, without showing special cause./ A common order is made without notice to the adverse party, and is drawn up without any direct application to the court. ^'^ Common orders are largely regulated by local rules and practice. Thus, in Illinois, there are no orders entered without direct ap- plication to the court.®® § 431. Special orders. All orders made on special application to the court are desig- nated "special orders." This term applies to orders made by the court ex parte^ as well as to such as are made upon notice to the adverse party.®^ They are those orders which the court, in the exercise of its discretion, may either grant or refuse.^ siHalbert y. Alford (Tex.) 16 S. W. 814; Loring v. Illsley, 1 Cal. 24. osNolton V. Western R. Corp., 10 How. Pr. (N. Y.) 97. 6= Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 Atl. 76, citing Black, Judgm. 5, 6. 04 1 Barbour, Ch. Pr. 581. For examples of forms of order, see supra, §§ 152, 3 65, 181, 224, 230, 231, 233, 282, 287, 289, 309, 345, 348-351, 366, 369, 372, 375, 408, 410, 411, and index. 65 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1589; Beach, Mod. Eq. Pr. § 593; 1 Barbour, Ch. Pr. 582. 00 For practice in federal courts, see United States Equity Rules 4-6. 07 1 Barbour, Ch. Pr. 682. «8 Beach, Mod. Eq. Pr. § 593; 2 Daniell, Ch. PI. & Pr. 1589. (447) § 432 EQUITY PLEADING AND PRACTiDB. [Ch. 22 A special order entered under direction of the court, although in violation of one of its standing rules, cannot be disregarded by the parties or the oiScers of the court, so long as it remains in force. ®^ § 432. Consent orders. rt An order by consent is one in which the parties agree upon 1 the terms of the order in a cause of which the court has juris- vdiction.''^V Such an order cannot be modified or varied in an es- sential part without the assent of both parties, unless there is fraud, coUu-sion, mistake, or some other grotmd which would invalidate an agreement between the parties. '^^ But if a party to an order by consent takes proceedings which are inconsistent with the execution of it, or is guilty of unreasonable delay in his application to vacate it, he will be considered as having waived his right to insist upon the rule just mentioned. '^^ Orders by consent must be founded upon the written consent of the parties or their solicitors, filed at the time of entering the order, '^^ or else upon the oral consent of the parties, made in open court. Such consent should be incorporated in the order.^* Where the order states that it is made by consent of all parties, the recital ik conclusive, and courts of review are bound by such recital.^® As a general rule, consent orders are not appealable.'^® 69 1 Barbour, Ch. Pr. 582; Osgood v. Joslln, 3 Paige (N. Y.) 195; Studwell V. Palmer, 5 Paige (N. Y.) 166; Jackson v. Jackson, 3 Cow. (N. Y.) 73; Ross v. Griffin, 53 Mich. 8. 70 Henry v. Hilliard, 120 N. G. 479, 27 S. E. 130. 711 Barbour, Ch. Pr. 583; Monell v. Lawrence, 12 Johns. (N. Y.) 521; Leitch v. Cumpston, 4 Paige (N. Y.) 476; Downing v. Cage, 1 Bq. Cas. Abr. 165; Oldershaw v. King, 26 Law J. Exch. 384; Fussell V. Silcox, 5 Taunt. 628; Wilding v. Sanderson, 66 Law J. Ch. 684. 72 1 Barbour, Ch. Pr. 583; Bernal v. Donegal, 3 Dow, 146; Attorney General v. Tomline, 7 Ch. Div. 388, 47 Law J. Ch. 473. 73 1 Barbour, Ch. Pr. 583. 74 Smith V. Grant, 11 Civ. Proc. R. (N. Y.) 354. 75Roby V. Title Guarantee & Trust Co., 166 111. 336, 46 N. B. 1110; Henry v. Hilliard, 120 N. C. 484, 27 S. B. 130. Where a party consents to an order that a receiver may advance money to protect property in his charge, such party cannot impeach it on a ground which existed (448) Ch. 22] INTERLOCUTORY ORDERS. § 434 § 433. Where orders may be made. It is a f-undamental principle that courts can exercise judi- cial functions only at such times and places as are fixed by law, and that the judges of courts can enter no orders in vacation, except such as are expressly authorized by statute-'^V Thus, in the absence of statute, a judge out of court and off the bench has no power to approve an appeal bond, and direct it to be filed nunc pro tunc, as of a previous date within the time fixed by an order of court, which has expired.'^* For the purpose of jurisdiction at chambers, where such jurisdiction is conferred, such chambers are wherever the judge happens to be in his cir- cuit or district, when the exigencies of the case call for the transaction of chamber business. '^^ § 434. Frame of orders. Orders are molded and shaped to meet the exigencies of each particular case.^" The caption should always state truly the place where the court was held when the order was made, and, where it is material to either party, the caption or date should be made to correspond with the true time of the entry of the order. ^-"^ But where the party who is entitled to draw up an order enters it as of the time the decision of the court at the time he gave his consent. Rohy v. Title Guarantee & Trust Co., 166 111. 336, 46 N. B. 1110. 76Roby V. Title Guarantee & Trust Co., 166 111. 336, 46 N. B. 1110. See, also, as to consent orders, post, §§ 704, 711. 77 Blair v. Reading, 99 111. 600; Hunt v. Wallis, 6 Paige (N. Y.) 371. In some jurisdictions, power Is conferred upon judges in vacation or in chambers. 7s Pardridge v. Morgenthau, 157 III. 395, 42 N. E. 74. A chancellor on a hearing at chambers in vacatiorf can exercise no judicial function. Thus, where there is an agreement that the cause may be heard at chambers, in vacation, the chancellor can make no order in the cause that will bind the parties, as a judicial act or otherwise, without their assent, and which is not strictly in pursuance of their agreement, if at all. Blair v. Reading, 99 111. 600. 79 In re Neagle, 39 Fed. 833. 80 Worth V. Gray, 59 N. C. 4. SI 1 Barbour, Ch. Pr. 587; Whitney v. Belden, 4 Paige (N. Y.) 140. (449) Equity— 29 §434 EQUITY PLEADING AND PRACTICE. [Ch. 22 was pronounced, lie cannot afterwards object that it was not actually entered at that time.*^ The order should be so en- titled as to identify the order with the cause in which it is made;^^ but it need not contain at full length the names of all the parties to the cause.^'* The caption of an order is fol- lowed by the title of the suit in which it is entered. The com- plainant's name should be placed first.^^ Care should be taken that no mistake occurs in the names of the parties, for where, in the title of an order to dismiss a bill for want of prosecu- tion, the complainant was called by a wrong Christian name, the court refused to direct a replication filed after the order was drawn up and served to be taken off the files. ^® The title of the cause is succeeded by a brief recital of the papers on which it is founded, and of the names of the solicitors for the respective parties who appear in support of or in opposition to the application.®^ The order concludes with the ordering part, Avhich contains the directions of the court upon the matter of the application.®* In drawing orders, brevity should be stud- ied, so far as it may be consistent with a statement expressing the groimds upon which the order is made, and showing that its entry is regular.®^ Generally, an order should be signed by the court. ^'^ This is, however, a matter for local regulatiim, and frequently statutes requiring such signature are held to be di- rectory merely.®^ The orders of a court of record must appear of record, and a mere memorandum made by a judge off the bench is not such order.^^ A mere oral decision is of no effect S-' Whitney v. Belden, 4 Paige (N. Y.) 140. 83 Telfer v. Hosklns, 32 Hi. 165. Si Telfer v. Hoskins, 32 lil. 167; Paddock v. Palmer, 32 jxisc. Rep. 426, 66 N. Y. Supp. 743. 83 1 Barbour, Ch. Pr. 587. 80 1 Barbour, Ch. Pr. 587; Verlander v. Codd, 1 Sim. & S. 94. 87 1 Barbour, Ch. Pr. 587; Macy v. Nelson, 62 N. Y. 638. 88 1 Barbour, Ch. Pr. 587. 80 1 Barbour, Ch. Pr. 587. 00 Branch v. Walker, 92 N. C. 87. 01 Baker v. Baker, 51 Wis. 538, 8 N. W. 289; MoCrea v. Haraszthy, 51 Cal. 146. 02 pardridge v. Morgenthau, 157 111. 395, 42 N. E. 74. (450) Ch. 22] INTERLOCUTORY ORDERS. § 435 witliotit an order entered of record.^^ Until an order is entered, it is inoperative as such.®* All orders should be entered in the olHce of the clerk of the court where the suit is pending.^^ § 435. Entry of order nunc pro tunc. It is a common occurrence to apply to the court to enter anl order nunc pro tunc, as of a date when it was actually made, or when existing conditions imposed on the court the duty of enter- ing it to correct a mistake in failing to enter an order which was actually made, or should have been made.®/^ After the court's power has ceased, an order nunc pro tunc, as of a pre- ceding term, when the court had jurisdiction, is invalid. ^'^ Lib- erty has been given to redraw an order which was lost before it was entered, and to enter it nunc pro tunc, though to charge in- terest, it appearing by the minute book of the registrar to hava been drawn up.^^ It is said that an application to enter an order nunc pro tunc is a motion of course when the party entitled to the order comes speedily, but after a length of time there ought to be notice of the motion.^^ § 436. Notice and service of orders. In Illinois it is held that, where a defendant has once been brought into court by a service of process, he is bound to take notice of all orders made in the cause ; and so where a bill was dis- 83 1 Barbour, Cli. Pr. 584; Whitney v. Belden, 4 Paige (N. Y.) 140; Fingal v. Blalje, 2 Molloy, 50. See Judson v. Gage, 98 Fed. 540. M United States Life Ins. Co. v. Shattucli, 159 111. 610, 43 N. E. 389; Stafford v. Ambs, 8 Abb. N. C. (N. Y.) 237; WMtaker v. Desfosse, 7 Bosw. (N. Y.) 678. It is held that, though signed by the judge, it is of no efficacy until delivered to the clerk to be filed. United States v. Alexander, 46 Fed. 728. 95 1 Barbour, Ch. Pr. 585. 96 Skerrett's Estate, 80 Cal. 62, 22 Pac. 85; Marine Bank Co. v. Mai- lers, 58 111. App. 232; Moore v. Meek, 8 Kan. 153; Gray v. Brignardello, 1 Wall. (U. S.) 627; Lanyon v. Michigan Buggy Co., 94 111. App. 243. 97 Ludlow's Heirs v. Johnston, 3 Ohio, 553, 17 Am. Dec. 609. 98 Williamson v. Henshaw, 1 Dickens, 129. 99 1 Barbour, Ch. Pr. 585; Anonymous, 3 Atk. 521. See post, § 728, for entering decrees nunc pro tunc. (451) § 436 EQUITY PLEADING AND PRACTICE. [Oh. 23 missed for want of prosecution, and two days afterwards, at the same term, the order of dismissal was set aside, it was held that no notice was required to be given to the defendant of the vacat- ing of the order of dismissal, and reinstating the cause.^"" The question as to the necessity of service frequently depends upon the form of the order. Thus, where a court directs a party to do an act within so many days after the service of the order, a copy must be served; but where the act is directed to be done within so many days after the date, or after the entry of the order, the court intends that the party shall take notice of the or- der without service or express notice thereof.-^ "-^ After an order is drawn up, settled, and entered, it is then to be served, when service is necessary. Thus, it is a general rule that all orders which are to have the effect of requiring or limiting any act of the opposite party to be done within a specified time, or to bring him into contempt for disobedience, must be served, or actual notice thereof given.^"^ All orders which do not seek to bring the party into contempt may be served upon the solicitor for such party, if he has appeared by a solicitor. Where the object is to bring the party into contempt, the order must be per- sonally served, which is done by delivering a copy of the order to such party, and showing him a certified copy thereof, at the time of service, unless the production of it is expressly waived.^*** Personal service will be dispensed with when the party cannot be found.^"* In such and some other cases, serv- ice upon a solicitor will be substituted for personal service.-"'^ A party is in contempt for not obeying an order served upon his 100 Smith V. Brittenham, 98 111. 188. See, also, Roby v. Title Guar- Rntee & Trust Co., 166 111. 336, 46 N. E. 1110. 1011 Barbour, Ch. Pr. 590. 102 1 Barbour, Ch. Pr. 590; Ladd v. Ingham, 3 How. Pr. (N. Y.) 90. 103 1 Barbour, Ch. Pr. 590; Stafford v. Brown, 4 Paige (N. Y.) 360; Wallis V. Glynn, 19 Ves. 380; Perrine v. Broadway Bank, 53 N. J. Eq. 221, 33 Atl. 404; In re Gary, 10 Fed. 622. 104 Jackson v. , 2 Ves. Jr. 417. 105 1 Barbour, Ch. Pr. 5S1. The court may dispense with service of an order, where justice requires. Sullivan v. Wallace, 73 Cal. 307, 14 Pac. 789. (452) Ch. 22] INTERLOCUTORY ORDERS. § 437 solicitor, if knowledge of sucli service was brought home to the party, in the same manner as if it were served upon him personally.^**® Generally, orders are to be served, when nec- essary, in the same manner as notices of motions. Upon the copy served is usually indorsed a notice, signed by the so- licitor of the party obtaining the order, that it is "a copy of an order entered in this cause in the office of the register [or clerk] of this court." This is, however, not necessary. -^"^ § 437. Orders to show cause. ' An order or rule to show cause is an order requiring a party to appear and show cause why a certain thing should not be done or permitted.^"^ An order nisi is substantially an order to show cause. Such orders are granted, upon application to the court, without either service or notice. In certain cases, a party pre- senting a petition, affidavit, or master's report may have an order nisi that the prayer of his petition or motion be granted, unless cause to the contrary be shown within the time limited by the rules, or fixed by the court for that purpose. A copy of thia order is to be served upon the adverse party, and, if he does not appear to show cause at the time appointed, the order nisi will be made absolute, on proving due service of a copy thereof.-"" Thus, on filing a master's report, an order nisi may be entered to confirm the same, unless cause to the contrary be shown with- in a specified time.-'^" In computing the time upon motions 01 orders nisi, the whole of the day on which the order was served is to be included, and the day on which the motion is ta be made is to be excluded ; or, as it is often expressed, the daj o£ service is excluded, and the day on which the act is U 106 People V. Brower, 4 Paige (N. Y.) 405; 1 Barbour, Ch. Pr. 591, See, for contempt in disobeying orders of the court, post, §§ 517 et seq, 534 et sect. 107 1 Barbour, Ch. Pr. 591. 108 Black, Law Diet. tit. "Order." 109 1 Barbour, Ch. Pr. 592. 110 1 Barbour, Ch. Pr. 592 ; Vandenburgh v. Van Rensselaer, 6 Paiga (N. Y.) 147. (453) § 438 EQUITY PLEADING AND PRACTICE. [Ch. 22 be done is included. ^-^^ It is said that the order nisi hav- ing been served in the regular way, and no cause having been shown against making the order absolute, it may be made ab- solute upon the day appointed for showing cause, upon affidavit of service of the order nisi, but that, unless an affidavit of such service is filed and a motion made, the order will not become absolute at the expiration of the specified period, except it is expressly so ordered, although no cause is shown, and that such motion to make the order nisi absolute may be made after the day given to show cause, but in such a case the party must not only produce an affidavit of service of the order, but also prove that no cause has been shown to the contrary.-' ^^ § 438. Enforcement of orders. Orders are, in general, enforced by process of contempt.-'^ A party disobeying the orders of the court will be denied any favors thereby until he purges his contempt.-*^* Where it is intended to enforce an order against a person not a party to the record, he must be personally served mth the order directing him to do the act which he is ordered to perform. Then, upon affidavit of personal service of such order and of nonperform- ance, an order may be obtained, upon notice of motion person- ally served, for an order that the act required be done within a limited time, or that the person stand committed. This order is usually called the "order nisi," and cannot be obtained unless there has been a previous order limiting the time for perform- ance, except, under the English practice, in case of the balance due to a solicitor upon taxation of his bill. When the order nisi has been obtained and served personally, the party prose- cuting the contempt may apply by motion ex parte that the con- temnor may stand committed, upon producing an affidavit of 111 Vandenburgli v. Van Rensselaer, 6 Paige (N. Y.) 147; Ewing v. Bailey, 5 111. 420; Gillespie v. White, 16 Johns. (N. Y.) 117; Brown v. City of Chicago, 117 111. 21, 7 N. B. 108. 112 1 Barhour, Ch. Pr. 593. 113 1 Barbour, Ch. Pr. 593. 114 Robinson v. Owen,'46 N. H. 38. See, also, post, §§ 523, 559. (454) Ch. 22] INTERLOCUTORY ORDERS. § 439 personal service of the order nisi, and that the act required to be done has not been performed, or, under the English practice, where the order was for the payment of money, the register's certificate that the money has not been paid.^^^ § 439. Effect of irregular or void orders. An irregular order made by the court is not void, but re- mains in force until set aside or waived by stipulation, and can- aot be disregarded by the parties or officers of the court, so long as it remains in force.^^® The proper course of a party affected by an order which is improper, or has been entered through in- '' advertence or mistake, is to apply to open the motion or vacate the order./ If he fails to do so, he cannot afterwards resist an attachment for contempt for noncompliance with such order by showing that such order ought not to have been made.^^^ Every irregularity in an order is waived by the party's taking a step to recognize it, or by his delaying to move to set it aside. There is, however, a distinction between orders which are merely ir- regular and such as are altogether erroneous, and in which there is a substantial defect, not merely one of form."* Thus, one charged with contempt of an order, judgment, or decree may acquit himself by showing that it is a nullity, but he cannot be heard to question it on the ground of irregularity, however erroneous.^^® But it is said that, although an order which has been made must be obeyed, yet, on an application against a per- son guilty of a breach of it, the court will give to him the benefit of the fact that the order ought not to have been made.'^** An or- 115 1 Barbour, Ch. Pr. 594, 595; Parkins v. Morris, 2 Dickens, 689; Collins V. Crumpe, 3 Madd. 390; Stocken v. Dawson, 7 Sim. 547. 116 1 Barbour, Ch. Pr. 588; Hunt v. Wallis, 6 Paige (N. Y.) 371; Os- good V. Joslin, 3 Paige (N. Y.) 195; Studwell v. Palmer, 5 Paige (N. Y.) 166; Boddy v. Kent, 1 Mer. 361. See post, §§ 517, 537. ii7Higbie v. Bdgarton, 3 Paige (N. Y.) 253. iisi Barbour, Ch. Pr. 589; Levi v. Ward, 1 Sim. & S. 334; Brasher's Ex'rs V. Van Cortlandt, 2 Johns. Ch. (N. Y.) 242; Crowell v. Botsford, 16 N. J. Ba. 458. 119 People v. Weigley, 155 111. 491, 40 N. E. 300. 120 Drewry v. Thacker, 3 Swanst. 546. (455) § 440 EQUITY PLEADING AND PRACTICE. [Ch. 22 der simply irregular will not be canceled where the other side has a knowledge of the irregularity, and quietly allows his op- ponent to move in it. This is not true of a void order, — nothing can make it valid.^^^ § 440. Opening, modifying, and discharging orders. ■^ Orders may be opened, varied, and discharged upon applica- tion to the court, and for good cause shown, such as mistake, surprise, and irregularity.-^^ One seeking to vacate an order should do so without delay, as every irregularity in an order is waived by the party's taking a step which recognizes the order, or his delaying to set it aside.-^^^ An order sustaining a de- murrer to a bill, and granting leave to amend, is but an inter- locutory order, and, while the cause is pending, the court has the power and jurisdiction to allow an amendment of the bill at a subsequent term.^^* After the term has expired at which final decree was rendered, a court cannot amend a former or- der, in matter of substance, nor can it correct clerical errors or mistake, unless there is some minute or memorial paper in the record or on the docket to show what the order to be amend- ed in fact was.-'^^ A court will not vacate an order, and cause it to be re-entered as of a more recent date, for the purpose of enabling a party to appeal therefrom after the time for appeal has expired.^ ^® An order or decree by consent cannot be modi- fied or varied in an essential part without the assent of both parties to the same.-'^'^ 121 Johnston v. Bloomer, 3 Edw. Ch. (N. Y.) 328. 122 1 Barbour, Ch. Pr. 595; Ashe v. Moore, 6 N. C. 383; Highie v. Ed- garton, 3 Paige (N. Y.) 253; Killing v. Killing, 6 Madd. 68; Isnard v. Cazeaux, 1 Paige (N. Y.) 39; Doss v. Tyack, 14 How. (U. S.) 297. 123 1 Barbour, Ch. Pr. 589. 124 Campbell v. Powers, 139 111. 128, 28 N. E. 1062. See, also, Barth V. Rosenfeld, 36 Md. 604; Park v. Johnson, 7 Allen (Mass.) 378; Pat- tison V. Josselyn, 43 Miss. 373. 125 Culver V. Cougle, 165 111. 417, 46 N. B. 242. 126 1 Barbour, Ch. Pr. 596; Townsend v. Townsend, 2 Paige (N. Y.) 413. 12T Leltch V. Cumpston, 4 Paige (N. Y.) 476. (456) CHAPTEE XXIII. AFFIDAVITS. § 441. Definition and general nature. An affidavit is an oath in writing, sworn to before some per- son who has authority to administer oaths.-^ The oath and affi- davit are not two separate and distinct things. The affidavit includes the oath.V^ The distinction between a deposition and an affidavit is that' the former is evidence given by a witness un- der interrogatories, oral or written, and usually written down by an official person, while an affidavit is the mere voluntary act of the person making the oath, and may be, and generally is, taken without the cognizance of the one against whom it is to be used.^ Affidavits are generally resorted to in support of and in opposition to motions and petitions, or for certifying the service of process, notices, and the like. They may also be used in support of a bill, or of the defendant's answer.* They are inadmissible as evidence on the hearing, except by consent of the parties.^ § 442. By whom to be made. Affidavits may be made by the parties in the suit during the 11 Barbour, Ch. Pr. 597; Harris v. Lester, 80 111. 307; Barhydt v. Alexander, 59 Mo. App. 188; Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326; Wyatt v. Jeffries, 43 Tex. 154; Watts v. Womack, 44 Ala. 605. 2 Burns v. Doyle, 28 Wis. 460. sStimpson v. Brooks, 3 Blatchf. 456, Fed. Cas. No. 13,454; City of Atchison v. Bartholow, 4 Kan. 124; Shinn v. Board of Education, 39 W. Va. 497, 20 S. B. 604; 1 Daniell, Ch. PI. & Pr. (6th Ed.) 888, note. * 1 Barbour, Ch. Pr. 597. 5 1 Barbour, Ch. Pr. 599; Quinn v. Rawson, 5 111. App. 130; State v. Allen, 5 Kan. 213; Clutch v. Clutch, 1 N. J. Eq. 474; Braxton v. Lee's Heirs, 4 Hen. & M. (Va.) 376. (457) § 442 EQUITY PLEADING AND PRACTICE. [Ch. 23 progress thereof.® The general ru\e is that an affidavit must be made by the person who has a personal knowledge of the facts, unless a good reason is shown for its being made by some other person.^ Upon sufficient cause shown, a substituted affi- davit by another person than a party will be allowed, as where the party is sick or absent, or where the suit is conducted by an agent or attorney in fact.* It is held that an attorney may make an affidavit for his client.® Whenever the affidavit relates to the proceedings in the cause, the affidavit should, in general, be made either by the solicitor or by his clerk who has had the principal management of the cause.-' " An affidavit on which a motion is founded should not be made by the clerk of the attorney, but by the attorney himself, unless a sufficient excuse is offered for the omission.^^ The authority of an attorney at law to make an affidavit for his client is presumed, and neither averment nor proof of authority is necessary.-'^ In some jurisdictions it is held that an affidavit which shows that the party making it is an agent of the plaintiff is presumptively made on behalf of the plaintiff.^* An affidavit made by an attorney need not show the affiant's means of knowledge any further than would be required of the party himself.^* An affidavit stating that the affiant is 6 1 Barbour, Ch. Pr. 599. Tl Barbour, Ch. Pr. 599; Barry v. Cane, 3 Madd. 472. 8 1 Barbour, Ch. Pr. 599; Griel v. Buckius, 114 Pa. 187, 6 Atl. 153. "Abbott V. Zeigler, 9 Ind. 511; McAlpin v. Pinch, 18 Tex. 831. 10 1 Barbour, Ch. Pr. 599; The Harriet, Olcott, 222, Fed. Cas. No. 6,096. "Chase v. Edwards, 2 Wend. (N. Y.) 283; Ames v. Merriman, 9 Wend. (N. Y.) 498; Bank of Pittsburgh v. Murphy, 64 Hun, 632, 18 N. Y. Supp. 575. 12 Miller v. Adams, 52 N. Y. 409; Simpson v. Lombas, 14 La. Ann. 103. 13 Smith V. Victorin, 54 Minn. 338, 56 N. W. 47; White Sewing Ma- chine Co. V. Betting, 53 Mo. App. 260; Murray v. Cone, 8 Port. (Ala.) 252; Stringer v. Dean, 61 Mich. 196, 27 N. W. 886. See, however, Miller V. Chicago, M. & St. P. Ry. Co., 58 Wis. 312, 17 N. W. 130; Ex parte Bank, 7 Hill (N. Y.) 177. 14 Anderson v. Wehe, 58 Wis. 615, 77 N. W. 426; Bates v. Robinson, 8 Iowa, 318; Gilkeson v. Knight, 71 Mo. 403. (458) Ch. 23] AFFIDAVITS. § 443 the treasurer of a corporation sufficiently shows his authority to make it.^^ When the defendant puts in a stranger's affidavit, it must show upon its face sufficient reason why it is not made by the defendant himself, and that a real disability existed which prevented him from making it, and the circumstances giving rise to the disability.-'^ § 443. Who may take an affidavit. An affidavit may be made before any person authorized by law to administer oaths.^^ The power to administer oaths does not usually belong exclusively to courts.^* An officer taking an affidavit must act within his territorial limits.^® Where noth- ing appears to show that an affidavit was taken out of the juris- diction of the officer before whom it was sworn, it will be pre- sumed to have been taken within the limits of his jurisdiction.^" It is held by some authorities that an attorney authorized gen- erally to administer oaths may administer to his client an oath to an affidavit to be filed in the suit in which he represents the client.^^ But it is not proper practice for an attorney to admin- ister oaths to his client in a suit in which he is employed, and it is contrary to the statutes and rules of court in many jurisdic- 15 Forbes Lithograph Mfg. Co. v. Winter, 107 Mich. 116, 64 N. W. 1053. 16 Griel v. Buckius, 114 Pa. 187, 6 Atl. 153. See, however, Murray V. Kirkpatrick, 1 Cow. (N. Y.) 210. 17 Wright V. Smith, 66 Ala. 545 ; Seidel v. Peschkaw, 27 N. J. Law. 427; Duffie v. Black, 1 Pa. 388; Wood v. Jefferson County Bank, 9 Cow. (N. y.) 194. 18 Ferguson v. Smith, 10 Kan. 396. 19 1 Barbour, Ch. Pr. 605; Tanner & Delaney Engine Co. v. Hall, 22 Fla. 391. 20 1 Barbour, Ch. Pr. 606; Parker v. Baker, 8 Paige (N. Y.) 428. 21 Richardson v. Sheehan, 46 111. App. 528; Yeagley v. Webb, 86 Ind. 424; Dawes v. Glasgow, 1 Pin. (Wis.) 171; Taylor v. Hatch, 12 Johns. (N. Y.) 340. Contra, Anderson v. Sloan, 1 Colo. 33; Den d. Hadley v. Geiger, 9 N. J. Law, 225; Kuh v. Barnett, 57 N. Y. Super. Ct. 234, 6 N. Y. Supp. 881. See, also, 1 Barbour, Ch. Pr. 605; People v. Spalding, 2 Paige (N. Y.) 326. (459) § 444 EQUITY PLEADNG AND PRACTICE. [Ch. 23 tions.^^ It is held in some jurisdictions that the power to ad- minister an oath is not incidental to the office of notary public, and that, if possessed, it is by force .of the enactments of the state under which he holds his commission, and that the power of a notary in a foreign state to administer an oath must be shown in order to give such oath validity.^* In other jurisdic- tions it is laid down that a notary public in another state will be presumed to have authority to administer oaths, in the ab- sence of proof that he has no such authority.^* § 444. Frame and requisites of affidavit. An affidavit should be correctly entitled in the cause or mat- ter in which it is made. An affidavit made in one cause can- not be read for the purpose of obtaining an order in another.^^ And in some jurisdictions it is held that, although in ordinary cases a court will disregard the misentitling of a paper which could not have misled the opposite party, it is otherwise as re- spects affidavits, because the misentitling of an affidavit will exempt the deponent from punishment for perjury, though his oath is false.^® It will be sufficient, however, if it was cor- rectly entitled when it was sworn, although the title of the cause may have been altered by subsequent amendment.^^ The 22 Phillips V. Phillips, 185 111. 629, 57 N. B. 796. See Linck v. City of Litchfield, 141 111. 469, 31 N. E. 123, for consideration of this ques- tion. 23Figge V. Rowlen, 185 111. 234, 57 N. E. 195; Trevor v. Colgate, 181 111. 129, 54 N. E. 909. 24Pinkham v. Cockell, 77 Mich. 265, 43 N. W. 921; Wood v. St. Paul City Ry. Co., 42 Minn. 411, 44 N. W. 308, 7 L. R. A. 149; Genest v. Las Vegas Masonic Bldg. Ass'n (N. M.) 67 Pac. 743. 25 1 Barhour, Ch. Pr. 600; Watson v. Reissig, 24 111. 281, 76 Am. Dec. 746; Whipple v. Williams, 1 Mich. 115; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 1119; Vinson v. Norfolk & W. Ry. Co., 37 W. Va. 598, 16 S. E. 802. 26 1 Barbour, Ch. Pr. 600; Hawley v. Donnelly, 8 Paige (N. Y.) 415; King v. Harrington, 14 Mich. 532; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 1119; Vinson v. Norfolk & W. Ry. Co., 37 W. Va. 598, 16 S. E. 802; Whipple v. Williams, 1 Mich. 115. 27 1 Barbour, Ch. Pr. 600; Hawes v. Bamford, 9 Sim. 653. (460) Ch. 23] AFFIDAVITS. § 444 title of an affidavit embraces its entire heading, — the name or style of the court, and the names of the parties. ^^ Where there are several complainants, it is no ground for objection that the Christian name of one of them is omitted. ^^ After the title follows the venue, which states the state and county in which the affidavit is sworn to, thus : State of , ] ^ss. County of .J In some jurisdictions this is held to be an essential part of the affidavit.^" In other jurisdictions the contrary is held.^^ The true place of residence, description, and occupation of the deponent must be inserted. This rule does not, however, apply to affidavits by parties in the cause, who may describe themselves in the affidavit simply as "the above-named com- plainant" or "defendant." Where there are several complain- ants, and one of them styles himself "the above-named com- 28 Bowman v. Sheldon, 5 Sandf. (N. Y.) 657. Affidavits evidently in- tended to be used in a cause, but not entitled in it, will be allowed to be read on a motion for injunction. Shook v. Rankin, 6 Biss. 477, Fed. Cas. No. 12,804. The sufficiency of an affidavit does not depend on the fact whether it is entitled in any case, or in any particular way. Without any caption whatsoever, it is nevertheless an affidavit. Harris v. Lester, 80 111. 307. 29 Maury v. Van Arnum, 1 Hill (N. Y.) 370. An affidavit entitled "A. B. et al. v. C. D. et al." is sufficient. Seymour v. Bailey, 66 111. 288; White v. Hess, 8 Paige (N. Y.) 543; Maury v. Van Arnum, 1 Hill (N. Y.) 370. See, however, Arnold v. Nye, 11 Mich. 456. An affidavit entitled "C. D. ads. A. B." is the same in law as "A. B. v. C. D.," "ads." indicating "ad sectam," as "v." indicates "versus." Bowen v. Wilcox & Gibbs Sewing Machine Co., 86 111. 11; Ryers v. Hillyer, 1 Caines (N. Y.) 112. 30 1 Barbour, Ch. Pr. 601; Barhydt v. Alexander, 59 Mo. App. 188; Saril V. Payne, 4 N. Y. Supp. 897; Thompson v. Burhans, 61 N. Y. 63; Thurman v. Cameron, 24 Wend. (N. Y.) 87. The omission may be remedied by amendment. Reedy Elevator Co. v. American Grocery Co., 48 N. Y. Supp. 619. 31 Young V. Young, 18 Minn. 90 (Gil. 72); State v. Henning, 3 S. D. 492, 54 N. W. 536; Avery v. Good, 114 Mo. 290, 21 S. W. 815; Sullivan V. Hall, 86 Mich. 7, 48 N. W. 646. See Rex v. Emden, 9 East, 437; Bar- nard V. Darling, 1 Barb. Ch. (N. Y.) 76; Goodnow v. Litchfield, 67 Iowa, (461) I 444 EQUITY PLEADING AND PRACTICE. [Ch. 23 plainant/' the objection is not fatal.^^ An affidavit of several persons, by the manner of wording it, may be made either joint and several, or joint or several, and great care and exactness ought to be observed in drawing it.^^ An affidavit must be true in substance, with all necessary cir- cumstances of time and place, manner, and other material inci- dents. It must set forth the matter positively, and all material circumstances attending it, that the court may judge whether the deponent's conclusion be just or not.^* Thus, an allegation in an affidavit that one is a creditor is but a statement of a conclusion.^® Where the deponent swears to words spoken, the addition of "or to that effect" is a proper precaution.^® An affidavit by the de- fendant that he has a good defense, without stating the nature and substance of it, is not sufficient.^ ^ Every affidavit of service of writs or orders, upon which process of contempt is to be founded, must fully and truly prove good service. Until due service be shown, no contempt appears to the court.^^ State- ments in affidavits will be presumed to have been made on per- sonal knowledge, unless stated to have been on information and belief, and unless it appears affirmatively and by fair inference that they could not have been and' were not made on such knowl- edge.^^ An affidavit must be material and pertinent, without 691, 25 N. W. 882; Ormsby v. Einstein, 56 U. S. App. 510, 85 Fed. 492. It is held that the omission of the letters "ss." from the venue is immaterial. Babcock v. Kuntzsch, 85 Hun, 33, 32 N. Y. Supp. 587; McCord & Nave Mercantile Co. v. Glenn, 6 Utah, 139, 21 Pac. 500; Smith V. Richardson, 1 Utah, 194. See Reavis v. Cowell, 56 Cal. 588. 3-1 Barbour, Ch. Pr. 601; Crockett v. Bishton, 2 Madd. 446. S3 1 Barbour, Ch. Pr. 601. 34 1 Barbour, Ch. Pr. 602; Hinde, Pr. 451. For case holding that am- biguous language in an aiBdavlt drawn by a solicitor of a party Is to be construed most strongly against such party, see Nebraska Mollne Plow Co. V. Fuehring, 52 Neb. 541, 72 N. W. 1003. 35 Wallace v. Chicago & Brie Stove Co., 46 111. App. 571. 30 1 Barbour, Ch. Pr. 602; Ayliffe v. Murray, 2 Atk. 60. 37 1 Barbour, Ch. Pr. 602; Sea Ins. Co. v. Stebbins, 8 Paige (N. Y.) 565; Meach v. Chappell, 8 Paige. (N. Y.) 135. 38 1 Barbour, Ch. Pr. 602; Hinde, Pr. 453. 39 Crowns v. Vail, 51 Hun, 204, 4 N. Y. Supp. 324. But it-is said that (462) Ch. 2?] AFFIDAVITS. § 444 needless tautology or impertinent matter or other prolixities. Scandalous and impertinent matter may be excepted to.^" It is scandalous and impertinent to draw inferences or state therein arguments reflecting on the character or impeaching the motives of the adverse party or his solicitor. '^^ A solicitor drawing a scandalous or impertinent affidavit ni&j be charged with the costs of expunging it.*^ The court will not refer an affidavit for impertinence merely, where it is not also scandalous, after it has been answered. ^^ Affidavits ought to be fairly and legibly written, and free from erasures and interlineations, otherwise the officer administering the oath may refuse to swear the af- fiants.** They are insufficient unless perjury can be assigned upon them.*^ After the substance of the affidavit has been stated, the af- fidavit usually concludes with a denial of any further knowl- edge on the subject, thus: "And further this deponent saith not." This formality, however, is not essential to its valid- ity.*'^ The date is not essential, and, if it is stated errone- ously, the mistake may be shown.*''^ Where the affidavit of one person is sworn to be correct by another, it may be treated as the latter's original affidavit.*^ In the absence of a rule of court or statute requiring it, the weight of authority is that an affi- ant's signature to an otherwise regular affidavit is not required.*^ an affidavit to the existence of a fact does not import that the affiant has personal knowledge thereof, unless so stated, or the fact be of such a character that he must have personal knowledge. United States v. Moore, 2 Lowell, 232, Fed. Cas. No. 15,803. « 1 Barbour, Ch. Pr. 602. "Powell V. Kane, 5 Paige (N. Y.) 265; 1 Barbour, Ch. Pr. 603. See Hawley v. Wolverton, 5 Paige (N. Y.) 522. i"l Barbour, Ch. Pr. 603; Ex parte Smith, 1 Atk. 139. 43 In re Burton, 1 Russ. 380. 4* 1 Barbour, Ch. Pr. 603. *5 People V. Becker, 20 N. Y. 354; Willis v. Lyman, 22 Tex. 268; Mil- ler V. Munson, 34 Wis. 579. ■i« 1 Barbour, Ch. Pr. 603. 47 Freas v. Jones, 15 N. J. Law, 20. 48 Wilson V. Berryman, 5 Cal. 44. 63 Am. Dec. 78. 49 Noble V. United States, Dev. Ct. CI. 83; Watts v. Womack, 44 Ala. (463) § 444 EQUITY PLEADING AND PRACTICE. [Ch. 23 Tlie oath, \adniiiiistered to the deponent by the officer is gen- erally as follows: "You swear that the contents of this affi- davit, by you subscribed, are true, so help you God."^° The oath of a Jew may be made according to the solemnity of the form of the Jewish religion. ^^ Statutes are found in most jurisdictions regulating the manner of administering oaths. ^^ The oath having been administered, the officer certifies that fact in a jurat, written on the left side of the paper. The form of jurat is: "Subscribed and sworn to [or affirmed] before me this day of , A. D. . , ISTo- tary fublic [or other official designation]. If the affidavit is made by two or more persons, the form of jurat is : "The above- named deponents, A. B. and C. D., were severally sworn this day of , A. D. , before me."^^ Where an affidavit is sworn to by a person who has been found, by the in- quisition of a jury, to be a lunatic, the officer before whom the same is sworn should state in the jurat that he has examined the deponent for the purpose of ascertaining the state of his mind, and that he was apparently of sound mind, and capable of understanding the nature and contents of the affidavit. If the deponent is blind, the officer should certify in the jurat that the affidavit was carefully and correctly read over to him in the presence of such officer before he swore to the same.®* An affi- 605; Ede v. Johnson, 15 Cal. 53; Turpln v. Eagle Creek & Little White Lick Gravel Road Co., 48 Ind. 45; Bloomingdale v. Chittenden, 75 Mich. 305, 42 N. W. 836; Norton v. Hauge, 47 Minn. 405, 50 N. W. 368; Re- dus V. Wofford, 4 Smedes & M. (Miss.) 579; Hitsman v. Garrard, 16 N. J. Law, 124; Alford v. McCormac, 90 N. C. 151; Armstrong v. Aus- tin, 45 S. C. 69, 22 S. B. 763; Shelton v. Berry, 19 Tex. 154; Hatha- way V. Scott, 11 Paige (N. Y.) 173; Fuller v. Missroon, 35 S. C. 314, 14 S. E. 714; Gaddis v. Durashy, 13 N. J. Law, 324. There are, how- ever, cases to the contrary. Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778; Dudley v. McCord, 65 Iowa, 671, 22 N. W. 420; Watt v. Carnes, 51 Tenn. 532. 50 1 Barhour, Ch. Pr. 603. 51 Newman v. Newman, 7 N. J. Ea. 26. 62 See United States Equity Rule 91; Rev. St. 111. c. 101, §§ 3, 4. 53 1 Barhour, Ch. Pr. 604. 5*1 Barbour, Ch. Pr. 604; In re Christie, 5 Paige (N. Y.) 242. See, (464) Ch. 23] AFFIDAVITS. § 446 davit whose certificate does not state the place where it is taken is not admissible as evidence.^^ § 445. Amendment of affidavit. /^ In most jurisdictions, an affidavit may be amended. ^'^ If amended, it must be resworn to after amendment, or it will be considered as no affidavit.*/ The omission of the affiant's sig- nature, where necessary, may be cured by amendment.^^ The failure of the officer administering the oath to add his attesta- tion may be so cured.*^ § 446. Form of affidavit. State of ■ — , I L ss. County of . In the Court of - Term, A. D. - John Doe, Complainant, ] V. I Gen. No. ; Term No. Richard Roe, Defendant. I County of . 1 State of . J John Doe, 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. John Doe. Subscribed and sworn to before me this day of . A. D. . A. B., [Notarial Seal.] Notary Public. for manner of administering an oath to illiterate and feeble-minded persons, supra, §§ 309, 320, 321. 55 United States v. Burr, Fed. Cas. No. 14,692c. se Reese v. Walker, 89 Ga. 72, 14 S. E. 888; Stewart v. Cabanne, 16 Mo. App. 517; Den d. Ely v. B"en, 12 N. J. Law, 321; State v. Giles, 103 N. C. 391, 9 S. E. 433. 5T Atlantic Bank of New York v. Frankford. 61 N. C. 199. 58 Watts V. Womack, 44 Ala. 605; Schumann v. Schumann, 6 Phila. (Pa.) 318; West Tennessee Agricultural & Mechanical Ass'n v. Mad- ison, 9 Lea (Tenn.) 407. 59Plerson v. Hendrix, 88 111. 34; Goldie v. McDonald, 78 111. 605. (465) Equity — 30 CHAPTER XXIV. STIPULATIONS AND ADMISSIONS. § 447. Stipulations. Stipulations are agreements between parties, or, more nsually, their counsel, during the progress of a cause, relative to such causey' They ordinarily tend to the dispatch of business, and are favored by the courts.^ They may be made in open court, or out of court, by the respective parties.^ It is the general rule that stipulations between the parties or counsel in a case will not be recognized by the court unless they are in writing, or made in open court, except so far as they are admitted by the party against whom they are sought to be enforced.^ There 1 Porter v. Holt, 73 Tex. 447, 11 S. W. 494; Seattle, L. S. & E. Ry. Co. V. Union Trust Co., 79 Fed. 179; Lewis v. Sumner, 13 Mete. (Mass.) 269; Prestwood v. Watson, 111 Ala. 604, 20 So. 600. 2 Banks T. American Tract Soc, 4 Sandf. Ch. (N. Y.) 438; Beach, Mod. Eq. Pr. § 586; Thompson, Trials, §§ 193-202. 3 Thompson, Trials, § 200; Beach, Mod. Eq. Pr. § 586; Patterson v. Ely, 19 Cal. 28; Reese v. Mahoney, 21 Ca'i. 305; Evans v. State Nat. Bank, 19 Fed. 676; La .lunta & Lamar Canal Co. y. Port Lyon Canal Co., 25 Colo. 515, 55 Pac. 728; Smith v. Smith, 119 N. C. 311, 25 S. E. 877. Whether or not verbal stipulations will be recognized is involved in dispute. Some courts hold that, notwithstanding the rule requires written stipulations, where an oral stipulation has been made, and the substance thereof is admitted, the court will not allow one of the counsel to disregard it, and obtain an unjust advantage, after his ad- versary has acted upon it. Thompson, Trials, § 200; Burnham V. Smith, 11 Wis. 258. In many jurisdictions, statutes or rules of court provide that stipulations must be in writing and signed by the parties. Smith v. Smith, 119 N. C. 311, 25 S. E. 877; Smith v. Wadleigh, 17 Me. 353; Morse v. State, 39 Tex. Cr. R. 566, 50 S. W. 342. But such a rule is held to have no application to agreements made in the presence of the court. Prestwood v. Watson, 111 Ala. 604, 20 So. 600. In other jurisdictions, stipulations are also entered of record. Thompson, Trials, § 193; Caldwell v. McWilliams, 65 Ga. (466) Ch. 24] STIPULATIONS AND ADMISSIONS. | 447 is a difference of opinion in regard to the effect of stipulations. It is held in some jurisdictions that stipulations or engagements made in open court touching the subject of the suit are contracts which the court is hound to enforce.* In other jurisdictions, such agreements are not treated as binding contracts, to be ab- solutely enforced, but as mere stipulations, which may be set aside, when such action may be taken without prejudice to either party ;^ and it is held that. whether or not a court will sustain or set aside a stipulation rests in the exercise of its sound dis- cretion whenever the parties can be restored to the same condi- tion they would have been in if the stipulation had not been made.^ Where it is held that stipulations have the force of contracts, it is said that they will not be set aside upon any lower grounds than those which would warrant a rescission of other contracts, viz., fraud, collusion, accident, surprise, or some ground of the same nature, and that the court will not relieve parties from the effects of a stipulation made under a full un- derstanding of the facts existing at the time it was entered into ; and that the mere fact that a party, by such a stipulation, has waived defenses which he might otherwise urge, is not sufScient ground for setting it aside.'' It is said that, where the agreement involves something more than a mere matter of practice, and af- 99; Merritt v. Wilcox, 52 Cal. 238. See, also, Citizens' Bank of Wichita V. Farwell, 56 Fed. 570. 1 Banks v. American Tract See, 4 Sandf. Ch. (N. Y.) 438; Staples V. Parker, 41 Barb. (N. Y.) 650; Meagher v. Gagllardo, 35 Cal. 602; Jewett V. Albany City Bank, Clarke Ch. (N. Y.) 241. 6 Porter v. Holt, 73 Tex. 447, 11 S. W. 494; Hancock v. vVinans, 20 Tex. 320; Buck v. Pawcett, 3 P. Wms. 242. See Casey v. Leslie, 12 App. Div. 34, 42 N. Y. Supp. 362; Barry v. Mutual Life Ins. Co. of New York, 53 N. Y. 536. • Porter v. Holt, 73 Tex. 447, 11 S. W. 494; Prestwood v. Watson, 111 Ala. 604, 20 So. 600; Chicago & N. W. Ry. Co. v. Hintz, 132 111. 265, 23 N. E. 1032; Richardson v. Musser, 54 Cal. 196; Barry v. Mutual Life Ins. CD. of New York, 53 N. Y. 536; Wells v. American Express Co., 49 Wis. 224; Magnolia Metal -Cq-y. Pound, 60 App. Div. 318, 70 N. Y. ■Supp. 230. 7 Thompson, Trials, § 194; Bingham v. Winona County Sup'rs, 6 Minn. 136 (Gil. 82); Rogers v. Greenwood, 14 Minn. 333 (Gil. 256); •CTiarles v. Miller. 36 Ala. 141. (46Y) § 448 EQUITY PLEADING AND PRACTICE. [Ch. 24 fects the substance of the cause of action, or the character of the defense, and it appears that it has been entered into by counsel without a knowledge of the facts, and that its with- drawal will not operate to the prejudice of either party, the motion to set aside the stipulation ceases to be a matter of mere discretion, and should be granted by the court. ^ It is also said that the agreement should not be set aside at the instance of ei- ther party, when the party invoking such action has obtained an advantage under it, or when its withdrawal will place the oppo- site party in a worse position than if it had never been made.^ The application for the setting aside of a stipulation should be made without laches, and, where considerable delay has inter- vened, courts are reluctant to interfere to set aside the stipula- tion.^* Where an application to set aside a stipulation is grant- ed at the instance of one party, the other party should be re- stored to the rights he had when such stipulation was entered into." § 448. Validity of stipulations. A stipulation attempting to give the court jurisdiction which it does not possess is invalid.-'^ Stipulations contrary to public policy are not binding upon the court. -^^ It is said that stipu- lations by counsel concerning what is the law on a certain point are not obligatory upon the court.^* But it is held that this rule 8 Porter v. Holt, 73 Tex. 447, 11 S. W. 494; Keens v. Robertson, 46 Neb. 837, 65 N. W. 897; Sullivan v. Eddy, 154 111. 199, 40 N. E. 482; Brown v. Cohn, 88 Wis. 627, 60 N. W. 826. Porter v. Holt, 73 Tex. 447, 11 S. W. 494; Rogers v. Greenwood, 14 Minn. 333 (Gil. 256); Barry v. Mutual Life Ins. Co. of New York, 53 N. Y. 536. 10 Milbank v. Jones, 60 N. Y. Super. Ct. 259, 17 N. Y. Supp. 464; Page V. Brewsters, 54 N. H. 184; Continental ins. Co. v. Delpeucb, 82 Pa, 225. 11 Howe V. Lawrence, 22 N. J. Law, 116 ; Barry v. Mutual Life Ins. Co. of New York, 53 N. Y. 536. See, for enforcement of stipulations, People V. Rathbun, 21 Wend. (N. Y.) 509; Davies v. Burton, 4 Car. & P. 166; Heming v. Englisb, 6 Car. & P. 542; Casey v. Leslie, 12 App. Div. 34, 42 N. Y. Supp. 362. 12 Bingham v. Winona County Sup'rs, 6 Minn. 136 (Gil. 82). 13 Murphy v. People, 3 Colo. 148; Owen v. Thomas, 3 Mylne & K. 353. 14 Beach, Mod. Eg. Pr. § 588; Breeze v. Haley, 11 Colo. 351, 18 Pac. 551. (468) Ch. 24] STIPULATIONS AND ADMISSIONS. § 450 should be limited to questions involving public interests, and tbat parties, by their stipulations, may in many ways make the law for any legal proceedings to which they are parties, which not only binds them, but which the courts are bound to en- force. ^^ § 449. Construction of stipulations. Litigants will not be presumed to have entered into an idle compact.-^* As a rule, stipulations should be construed liberally and in furtherance of justice.-'^ Where a stipulation is suscepti- ble of a reasonable interpretation, the court will not adopt a con- struction which necessarily imputes an intention on the part of one of the parties to mislead or deceive the court. -^^y* In general, it may be said that a stipulation shall be construed like other agreements. ^^ A stipulation which, on its face, purports to be a statement of facts in an action, does not, in the absence of a provision in the stipulation to that effect, preclude the parties from introducing other evidence on the trial.^° § 450. Upon whom stipulations are binding. Stipulations bind only those between whom they are made.^^ One attorney is, however, bound by the stipulations of his pred- 15 In re New York, L. & W. R. Co., 98 N. Y. 447. But It Is also held that parties cannot contract to change the mode of judicial proceed- ings. Gittings V. Baker, 2 Ohio St. 21. "In making stipulations, coun- sel should not be unmindful of the rules prescribed by the court." First Nat. Bank of Moscow v. Martin (Idaho) 55 Pac. 302. 16 McElwaine v. Hosey, 135 Ind. 481. 35 N. E. 272. 17 Hannah v. Baylor, 27 Mo. App. 302. 18 Citizens' Bank of Wichita v. Farwell, 56 Fed. 570 ; Foster's Bx'rs V. Dickerson. 64 Vt. 233, 24 Atl. 253. 19 A. B. Dick Co. v. Sherwood Letter File Co., 157 111. 325, 42 N. E. 440. Where there is no ambiguity in a written stipulation, parol evi- dence is inadmissible to control or explain its meaning. Schroeder v. Frey, 60 Hun, 58, 14 N. Y. Supp. 71; Mussey v. Bates, 60 Vt. 271, 14 Atl. 457. 20 Thompson, Trials, § 202; Dillon v. Cockcroft, 90 N. Y. 649; Schal- ler V. Chicago & N. W. Ry. Co., 97 Wis. 31, 71 N. W. 1042. 2iKneeland v. Luce, 141 IT. S. 437; Hoffman v. Schoyer, 143 111. 598, 28 N. E. 823; State v. Merchants' Bank of Lake City, 74 Minn. 175, 77 N. W. 31. I ^ - (469) § 451 EQUITY PLEAIJING AND PRACTICE. [(Jh. 24 eoessor.^^ A stipulation is not binding on infant parties.^* A stipulation made by an attorney in one suit will not bind his client in another suit unless the latter expressly acquiesces in it in the second suit.^* § 451. Stipulations concerning evidence. It is competent for parties to stipulate concerning the facts in a cause.^^ Such stipulations prevent delay and save ex- pense, and will be enforced by the court. ^® A frequent stipu- lation entered into to avoid a continuance relates to what an absent witness would testify to if present.^''' Agreements touching instruments of evidence, when not otherwise confined in their m.eaniug, are applicable to any future trial of the cause.^^ "When parties or their attorneys enter into a written stipulation with respect to the facts in a case for the purpose of evidence, and it is not expressly limited in respect of time, or confined in terms to some particular purpose or occasion, but is general, it stands in the case for all purposes until the litiga- tion is ended, unless the court, upon application, should relieve either or both parties from its operation."^^ A person cannot 22 Saltmarsh v. Bower, 34 Ala. 613. 23 Anderson v. Anderson, 191 111. 100, 60 N. B. 810. 24 Lake County Com'rs v. SutlifE, 97 Fed. 271; Nichols, Shepard & Co. V. Jones, 32 Mo. App. 657; Wilkins v. Stidger, 22 Cal. 232; Weisbrod V. Chicago & N. W. Ry. Co., 20 Wis. 441. 25 Beach, Mod. Eq. Pr. § 532; Thompson, Trials, § 361; Gittings v. Baker, 2 Ohio St. 21. 2 Walton V. Walton, 54 N. J. Bq. 607, 35 Atl. 289 ; MoClure v. Gulick, 17 N. J. Law, 343; Ex parte Cohen, 6 Cal. 318; Dodd v. Una, 40 N. J. Eq. 672, 5 Atl. 155; Herrington v. Cassem, 82 111. App. 594; O'Callaghan V. O'Callaghan, 69 111. 552; Dinet v. People, 73 111. 183; Blake v. Peo- ple, 80 111. 11. 70 Martin v. Burgwyn, 88 Ga. 78, 13 S. E. 958 ; Holtham v. Holtham, 6 Misc. Rep. 266, 26 N. Y. Supp. 762. 71 Neal V. Price, 11 Ga. 297; Lansing v. Lansing, 41 How. Pr. (N. Y.) 248. (563) § 552 EQUITY PLEADING AND PRACTICE. [Ch. 30 tion he had relative to said article or its publication was when he read the said article in said paper after its publication and distribution. This respondent further says that he is informed and believes that no disrespect was intended by said article to said court, or to any judge thereof, and that a fair construction thereof will not warrant an in- ference to that effect. This respondent is advised and believes that the publication of said article was not designed and had no tendency to impede, embarrass, or obstruct the administration of justice in said court. And this re- spondent does and will insist that he had and still has the right, through his said paper, by himself or his agents, to examine the pro- ceedings of any and every department of the government of luis state, and that he is not responsible for the truth of such publications, nor for the motives with which they were or are made, by the summary process of an attachment for contempt, save when such publications impede, embarrass, or obstruct the administration of justice. This respondent further says that such has been the established law of this state for over thirty years past, and that said court has no judicial power to change the same. This respondent takes this occasion to renew his repeated expres- sions of confidence in the ability and integrity of said court, and of the individual members of the same, and as evidence of the same gives the following article, which was published in said paper, issued on the 26th of September, 1872; that is to say: [Here insert the article.] This respondent further says that, at the time of the publication of said article first mentioned, there was an intense excitement in the community, and particularly in the city of Chicago, on account of the frequent murders, and the escape of the perpetrators thereof; and this respondent is informed and believes that the design of said article was to impress upon the community the importance of electing members of the next general assembly of this state who would remedy the de- fects in the criminal law of the state, by which criminals are able to escape punishment, and not to reflect upon the ability or integrity of said court, or any member thereof, nor to impede, embarrass, or ob- struct the administration of justice. Wherefore, this respondent prays that the said rule, as against him, may be discharged. Charles L. Wilson. State of Illinois, 1 L BS. Cook County. \ Charles L. Wilson, being duly sworn, says he is one of the respond- ents named in the foregoing answer, and that the matters stated in said answer are true. Charles L. Wilson. Subscribed and sworn to before me this 29th day of October, 1872. Henry W. Farrar, [Seal.] Notary Public." (564) Ch. 30] CONTEMPTS. § 554 § 553. Interrogatories and reference. After the respondent appears upon a rule to show cause, or is brought up on attachment, he may submit his contempt to the court upon his own answer in the form of an affidavit, or he may demand of the prosecutor to file interrogatories for him to an- swer./^ The usual course when the alleged misconduct is denied is for the court to allow the prosecutor to file interrogatories in- tended to elicit a full statement of all the facts and circum- stances of the alleged contempt. / These may he filed in court, and \he respondent's answers thereto taken and reported to the court, who may proceed in a summary manner to decide the question of the guilt of the accused; or a master or commis- sioner may be appointed, before whom the interrogatories may be filed, and who will take down and report to the court the respondent's answers thereto, with such other testimony as either the respondent or the prosecutor may desire to have taken.'^^ But the proofs before the master, and not merely his opinion upon the proofs, must be reported to the court. '^* § 554. Trial of contempts — Right to trial by jury. As a general rule, punishment for contempt is by summary proceeding. '^^ It is held that a court, in enforcing obedience to its orders by proceedings for contempt, is not executing the criminal laws nor invading the constitutional right of trial by jury.''® It was therefore held that an act providing for pun- 's The foregoing form was taken from People v. Wilson, 64 111. 195- 199. 73 Herring v. Tylee, 1 Johns. Cas. (N. Y.) 32; People v. Brown, 6 Cow. (N. Y.) 41; People v. Ball, 5 Cow. (N. Y.) 415; Hollingsworth v. Duane, Wall. Sr. 141, Fed. Cas. No. 6,617; State v. Matthews, 37 N. H. 450. 74 Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372; Rapalje, Contempt, § 124. 75 Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; Gandy v. State, 13 Neb. 445, 14 N. W. 143 ; State v. Doty, 32 N. J. Law, 403; State v. Matthews, 37 N. H. 450; State v. Mitchell, 3 S. D. 223, 52 N. W. 1052; In re Debs, 158 U. S. 596. 76 In re Debs, 158 U. S. 593; In re Perkins, 100 Fed. 950; Savin, Peti- tioner, 131 U. S. 267; Eilenbecker v. District Court of Plymouth Coun- (565) §555 EQUITY PLEADING AND PRACTICE. [Cll. 30 ishment for contempt of court was unconstitutional, in so far as it attempted to provide for jury trial for contempt of a court which had been created by the constitution, for the reason that the power to punish for contempt was inherent in the courts.''^ § 555. Judgment. The proceeding for contempt properly ends in a judgment of acquittal and discharge or conviction and sentence. ''* To au- thorize punishment as for a contempt, there must be a judg- ment adjudicating that the person proceeded against is guilty of a contempt. Unless the record shows a jjidgment of con- viction of contempt, a person committed therefor may avail himself of the remedy of habeas corpios.''^ In some jurisdic- tions it is held that the judgment should recite the offense of which the contemner stands convicted.*" By other authorities • it is held that facts constituting the contempt need not be set forth.*^ It is held that the judgment o/ order of committal to jail for contempt must be specific and certain. It must de- termine the penalties imposed, and be such as the defendant may readily understand, and be capable of performing. It is therefore held that an order that he stand committed to jail until the further order of the court, where such imprisonment is inflicted as punishment for disobeying the order of the court, and not to enforce the performance of some act, is void,*^ but ty, 134 U. S. 31; Cartwright's Case, 114 Mass. 230; Carter v. Com., 96 Va. 791, 32 S. E. 780; Wells v. Com., 21 Grat. (Va.) 503. See Ex parte Grace, 12 Iowa, 208. ■77 Carter v. Com., 96 Va. 791, 32 S. E. 780 See Arnold v. Com., 80 Ky. 300, 44 Am. Rep. 480. 78 Bdrington v. Pridham, 65 Tex. 612. 79 Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158; People v. Baker, 89 N. Y. 460; Ex parte Adams, 25 Miss. 883; Rapalje, Contempt, §§ 128, 129; Andrews v. Knox County Sup'rs, 70 111. 65. 80 In re Deaton, 105 N. C. 59, 11 S. E. 244; State v. Galloway, 5 Cold. (Tenn.) 326, 98 Am. Dec. 404; People v. Turner, 1 Cal. 152. 81 State V. Miller, 23 W. Va. 801; Fischer v. Hayes, 6 Fed. 63; Eas- ton v. State, 39 Ala. 551; Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110; Ex parte Smith, 40 Tex. Cr. App. 179, 49 S. W. 396. 82 People V. Pirfenbrink, 96 111. 68; Rex v. James, 5 Barn. & Aid. 894; (566) Ch. 30] CONTEMPTS. ' | 556 xipon this point the authorities are not uniform,^'' and it has been held that, where the contempt consists of a violation of the order of the court, and is a contempt not committed in its presence, and the statute does not prescribe the form of the order of commitment, the defendant may be imprisoned until he be discharged by order of the court, or until the further or- der of the court.** § 556. Form of order adjudging contemnor guilty. [Title of court and cause.] Upon the return of the rule issued in this cause to show cause why the defendant, J. C. B., should not be attached for contempt of court for failure to pay arrears of alimony heretofore due under the decree entered in this cause, and the court having jurisdiction in said cause, and having heard and read the affidavits on behalf of the complainant and of the defendant, and all parties being present in open court by In re Hammel, 9 R. I. 248; State v. Keeper of Jail of Camden County, 5 N. J. Law J. 184; Yates v. People, 6 Johns. (N. Y.) 337; In re Leach, 51 Vt. 630; State v. Galloway, 5 Cold. (Tenn.) 326. ssRapalje, Contempt, § 129. 84 Fischer v. Hayes, 6 Fed. 63 ; In re Allen, 13 Blatchf . 271, Fed. Gas. No. 208; In re Yates, 4 Johns. (N. Y.) 317; Green v. Elgle, 8 Jur. 187. The judgment should order the imprisonment for a definite period, or until the performance of a specified act. People v. Pirfenbrink, 96 111. 68; Whittem v. State, 36 Ind. 196; Taylor v. Newblock, 5 Okl. 647, 49 Pac. 1114. Where the order of commitment is not punitive, but coercive, that is, where the contemnor refuses to do something which the court has ordered to be done by him for the benefit of another party in the cause, the commitment may be either until the contemnor performs, or for a definite time, or until he performs. Clark v. Park- er, 70 111. App. 233; Phillips v. Welch, 11 Nev. 187; Stimpson v. Put- nam, 41 Vt. 238; Billingsley v. People, 86 111. App. 233; Gurney v. Tufts, 37 Me. 135; In re Clarke, 125 Gal. 388, 58 Pac. 22. It is also held that the order should provide, after the specification of the con- finement, the clause, "or he be discharged according to law," or words of like import. Billingsley v. People, 86 111. App. 233; McDonald v. People, 86 111. App. 558. Where a fine is imposed, the order should des- ignate the person to whom the fine should be paid. Smith v. Tenney, 62 111. App. 571; McDonald v. People, 86 111. App. 558; Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372. Where a party is com- mitted by an order in equity for the nonpayment of alimony, a fine, and costs, the amounts must be specified in the commitment. Jernee V. Jernee, 54 N. J. Eq. 657, 35 Atl. 458. (56T) §557 EQUITY PLEADING AND PRACTICE. [Ch. 30 counsel, and the court having heard arguments of said counsel, doth find that there is now due and unpaid from the defendant to the com- plainant the sum of six hundred and twelve dollars ($612) for arrears of alimony under said decree, no part of which has been paid; and the court further finds that no sufficient cause is shown by the said defend- ant why the same should not he paid, or that he has been or is unable to pay the same, hut that he willfully fails and refuses to obey the orders and decree of this court for the payment of said alimony; and the court doth find and adjudge the said J. C. B. to be guilty of a contempt of this court, and doth order that said J. C. B. be committed to the com- mon jail of Cook county, Illinois, there to remain charged with said contempt of this court until he pay the said sum of six hundred and twelve dollars ($612) into this court, or until released by due process of law, and that a warrant for that purpose issue forthwith, directed to the sheriff of Cook county, lUinois.ss § 557. Another form. In the Circuit Court of the United States of America for the Northern District of California — In Open Court. In the Matter of Contempt of David S. Terry. Whereas, on this third day of September, 1888, in open court, and in the presence of the judges thereof, to-wit, Hon. Stephen J. Field, circuit justice, presiding, Hon. Lorenzo Sawyer, circuit judge, and Hon. George M. Sabin, district judge, during the session of said court, and while said court was engaged in its regular business, hearing and determin- ing causes pending before it, one Sarah Althea Terry was guilty of misbehavior in the presence and hearing of said court; And whereas, said court thereupon duly and lawfully ordered the United States marshal, J. C. Franks, who was then present, to remove the said Sarah Althea Terry from the court room; And whereas, the said United States marshal then and there at- tempted to enforce said order, and then and there was resisted by one David S. Terry, an attorney of this court, who, while the said marshal was attempting to execute said order in the presence of the court, as- saulted the said United States marshal, and then and there beat him, the said marshal, and then and there wrongfully and unlawfully as- saulted said marshal with a deadly weapon, with intent to obstruct the administration of justice, and to resist such United States marshal and the execution of the said order; And whereas, the said David S. Terry was guilty of a contempt of this court, by misbehavior in its presence, and by a forcible resist- ance in the presence of the court to a lawful order thereof, in the man- ner aforesaid: Now, therefore, be it ordered and adjudged by this court that the 85 This form was taken from Barclay v. Barclay, 83 III. App. 366, af- firmed 184 111. 471, 56 N. E. 821. (568) Ch. 30] CONTEMPTS. § 558 said David S. Terry, by reason of said acts, was and is guilty of con- tempt of tlie authority of this court, committed in its presence on this third day of September, 1888. And it is further ordered that the said David S. Terry be punished for said contempt by imprisonment for the term of six months. And it is further ordered that this judgment be executed by impris- onment of the said David S. Terry in the county jail of the county of Alameda, in the state of California, until the further order of this court, but not to exceed said term of six months. And it is further ordered that a certified copy of this order, under the seal of the court, be process and warrant for executing this order. so § 558. Mode of punislinieiit. In order to enforce obedience to a decree, the court may im- prison or fine the offender, or do both, as to it, under all the circumstances, seems just and best calculated to compel obe- dience.^'^ The power to commit a party for failure to comply with any decree, when there is no valid ground for regarding him as in contempt, should not be resorted to unless there are no reasonable means for its enforcement.^^ It is said that an oificer of a private corporation is not liable to punishment for contempt of court solely because of his refusal to act without authority from the corporate body, upon an order of court di- rected against the corporation alone. *^ Where the act of con- tempt does not appear to be at all willful or defiant, but merely the exercise of a supposed right under advice taken and given in good faith, it does not deserve punishment as such, but the party should make the complainant whole as to the damages sus- tained thereby.'" 86 Ex parte Terry, 128 U. S. 289. For further forms of orders pun- ishing contempts, see Ex parte Savin, 131 U. S. 267; Fischer v. Hayes, 6 Fed. 63. 87 Leopold V. People, 140 111. 558, 30 N. E. 348; French v. Commercial Nat. Bank, 79 111. App. 110. ssHughson v. People, 91 111. App. 396; Goodwillie v. Milllmann, 56 111. 523. soHughson V. People, 91 111. App. 396; Rex v. Windham, 1 Cowp. 377. See, also, McKlm v. Odom, 3 Bland (Md.) 407, 415; Southern Develop- ment Co. V. Houston & T. C. Ry. Co., 27 Fed. 345. 90 Rapalje, Contempt, § 49, quotefi in French v. Commercial Nat. Bank, 79 111. App. 110. (569) § 559 EQUITY PLEADING AND PRACTICE. [Ch. 30 § 559. Effect of being in contempt. As a general rule, one who is in contempt cannot be heard by ; motion, or otherwise, except for the purpose of purging his con- ; tempt, until he has cleared his contempt and paid the costs,®^ ■ but this rule has been held to refer to applications addressed to the favor of the court, and not to matters of right.*^' The party in contempt may point out the irregularity or impropriety of any application made by his antagonist.^^ It is held in many jurisdictions that one in contempt has no right to be heard in defense of a suit in which he has been so adjudged, without leave of court,®* but this rule has been denied by other courts.^^ It is held that the court has power to strike out the defense where the defendant is in contempt for refusing to obey orders of the court f^ but the supreme court of the United States holds that a court has not the right to summon a defendant to answer, and then, after obtaining jurisdiction by the summons, refuse to al- low the party summoned to answer, or to strike his answer from the files, suppress the testimony in his favor, and condemn him without consideration thereof and without a hearing, on the 81 Freese v. Swayze, 26 N. J. Eq. 437; Wartman v. Wartman, Taney, 362, Fed. Cas. No. 17,210; Atchison, T. & S. F. R. Co. v. Jennison, 60 Mich. 232, 27 N. W. 6. One in contempt for disobedience of an injunc- tion cannot have a hearing on a motion for its dissolution, but when the nature and extent of the punishment to be inflicted depend on the determination of the question whether the injunction shall be con- tinued, or dissolved, the motion may be entertained. Crabtree v. Baker, 75 Ala. 91, 51 Am. Rep. 424; Endicott v. Mathis, 9 N. J. Eq. 110; Jacoby V. Goetter, 74 Ala. 427. See, also, supra, §§ 417, 523. o2Hovey v. Elliott, 167 U. S. 409; Pickett v. Ferguson, 45 Ark. 177; Walker v. Walker, 82 N. Y. 260. osHovey v. Elliott, 167 U. S. 409; Valle v. O'Reilly, 1 Hogan, 199. SI Lane v. Bllzey, 4 Hen. & M. (Va.) 504; Mussina v. Bartlett, 8 Port. (Ala.) 277; Saylor v. Mockbie, 9 Iowa, 209; Gant v. Gant, 10 Humph. (Tenn.) 464, 53 Am. Dec. 736. 93Hovey v. Elliott, 167 U. S. 409; Gordon v. Gordon, 141 III. 160, 30 N. B. 446. 96 Zimmerman v. Zimmerman, 7 Mont. 114, 14 Pac. 665; Walker v. Walker, 82 N. Y. 260; Barney v. Barney, 6 D. C. 1. (5Y0) Ch. 30] CONTEMPTS. g 560 theory that he has been guilty of a contempt of court.^'^ A mere failure to comply with the provisions of an interlocutory order is not such a contempt as will preclude the party from moving to discharge such order and set aside the proceedings for irreg- ularity.®^ Where appeal from an order or decree is author- ized, the fact that the party is in contempt for not executing it does not prevent such appeal.®* § 560. Review of contempt proceedings. There is a conflict of authority on the qiiestion whether or not the order of the court punishing one for contempt is review- able on appeal or writ of error. It is held, in many jurisdic- tions, that the adjudication for contempt, and the punish- ment thereof, belong exclusively to each respective court, and that one -court cannot review a judgment for contempt commit- ted against another.-""' "Hovey v. Elliott, 167 U. S. 409. See, also, Gordon v. Gordon, 141 111. 160, 30 N. E. 446; Hovey v. Elliott, 145 N. Y. 126, 39 N. B. 841; Peel V. Peel, 50 Iowa, 522; People v. Horton, 46 111. App. 434. 98 Peltier v. Peltier, Har. (Mich.) 19; Hill v. Bissel, Mos. 258. 99 People V. Horton, 46 111. App. 434; State v. Field, 37 Mo. App. 83; Wharton v. Stoutenburgh, 39 N. J. Eq. 299; Hazard v. Durant, 11 R. I. 195; Johnson v. Superior Court of City & County of San Francisco, 63 Cal. 578; Ricketts v. Mornington, 7 Sim. 200; Bickford v. Skews, 10 Sim. 193; People v. Prendergast, 117 111. 588, 6 N. E. 695. 100 New Orleans v. Steamship Co., 20 Wall. (U. S.) 387; Crosby's Case, 3 Wils. 188; Ex parte Kearney, 7 Wheat. (U. S.) 38; Shattuck V. State, 51 Miss. 50, 24 Am. Rep. 624; Watson v. Williams, 36 Miss. 331; Ex parte Hardy, 68 Ala. 303; State v. Tipton, 1 Blackf. (Ind.) 166; People V. Owens, 8 Utah, 20, 28 Pac. 871; Vilas v. Burton, 27 Vt. 56; Craig V. McCuUoch, 20 W. Va. 148; Phillips v. Welch, 12 Nev. 158; Lockwood v. State, 1 Ind. 161; Baldwin v. Miles, 58 Conn. 496, 20 Atl. 618. In Illinois it is held that judgments of courts of record in con- tempt cases are subject to review (Kyle v. People, 72 111. App. 171), and that, where a proceeding for a contempt is for the purpose of re- lief between the parties to the bill in chancery, an appeal will lie from the order of the court, either in imposing a fine or discharging the de- fendant (People v. Diedrich, 141 111. 665, 30 N. E. 1038). It is also held that a judgment rendered in contempt proceedings is reviewable by writ of error. Rawson v. Rawson, 35 111. App. 505. See, also, Les- ter V. People, 150 111. 408, 23 N. E. 387, 37 N. E. 1004, holding that, if (571) § 560 EQUITY PLEADING AND PRACTICE. [Ch. 30 In many cases, orders in contempt cases are reviewed by the writ of habeas corpvs}'^^ It is held by the supreme court of the United States that the writ of habeas corpus may be used to obtain the discharge of one imprisoned under the order of a court of the United States which does not possess jurisdiction of the person or of the subject-matter, but that it may not be used to correct mere errors or irregularities, however flagrant, committed within the authority of the court ;^°^ and that whether the facts justified the punishment of the offender is for the lower court to determine, and its conclusion upon such facts is not open to inquiry or review in proceedings by habeas corpus}^^ It is held in some states that certiorari will lie.^"* Upon review by habeas corpus, courts can deal only with such defects in the proceedings as render them not simply erroneous or irregular, but absolutely void, and the same rule is applied to the remedy of certiorari in some jurisdictions. '^"^ the court, on defendant's refusal to comply with such order, at- tempts to enforce the same by the imposition of a fine, with an order for an execution for its collection, or by a definite term of imprison- ment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment will be final, and an appeal will lie from it. loiRawson V. Rawson, 35 111. App. 505; People v. Kelly, 24 N. Y. 75; Burnham v. Morrissey, 14 Gray (Mass.) 226; Holman v. City of Aus- tin, 34 Tex. 668; Com. v. Newton, 1 Grant Cas. (Pa.) 453; Ex parte Terry, 128 U. S. 289; State v. Galloway, 5 Cold. (Tenn.) 326; Yates v. Lansing, 9 Johns. (N. Y.) 395. 102 Ex parte Terry, 128 TJ. S. 289. See, also. Ex parte Hardy, 68 Ala. 303. 103 Ex parte Terry, 128 U. S. 289. 104 State V. Leftwich, 41 Minn. 42, 42 N. W. 598. For right to review contempt proceedings by certiorari, see People v. Turner, 1 Cal. 152; Tyler v. Connolly, 65 Cal. 28, 2 Pac. 414; State v. Judge of Civil Dis- trict Court, 41 La. Ann. 314, 6 So. 539; State v. Lazarus, 37 La. Ann. 401; In re MacKnight, 11 Mont. 126, 27 Pac. 336, 28 Am. St. Rep. 451; Montgomery v. Muskegon Booming Co., 104 Mich. 411, 62 N. W. 561. 105 Ex parte Terry, 128 TJ. S. 289; Ex parte Kearney, 7 Wheat. (XJ. S.) 38; Ex parte Maulsby, 13 Md. 625; Phillips v. Welch, 12 Nev. 158. Mr. Rapalje, in his work on Contempts, says that two different views are entertained concerning the use of certiorari ; one being that the writ is regarded as only intended to be used by the court of review in carry- ing out its superintending jurisdiction over the proceedings of the lower (5Y2) Ch. 30.1 CONTEMPTS. § 560 court, and to bring up such proceedings when they were absoutely void for want of jurisdiction, and that this view is entertained in Califor- nia, Louisiana, Nevada, and Utah, and that the other view Is that the true office of the writ is the same as that of a writ of error, and authorizes the court of review to reverse or correct the judgment of the court be- low for errors of law of any kind, and that such is the doctrine in Arkansas, Iowa, and Pennsylvania. Rapalje, Contempt, § 154, citing People V. Dwinelle, 29 Cal. 632; Maxwell v. Rives, 11 Nev. 213; Young V. Cannon, 2 Utah, 560; Harrison v. State, 35 Ark. 45S; State v. Myers, 44 Iowa, 580; Com. v. Newton, 1 Grant Cas. (Pa.) 453. In Nevada, it is held that, where a court acquired jurisdiction of the subject-matter and of the person of the petitioner, a court of review has no jurisdic- tion on appeal, writ of error, habeas corpus, or certiorari. Phil- lips V. Welch, 12 Nev. 158. Owing to the great confusion existing con- cerning the remedies of one adjudged guilty of contempt, the matter is largely regulated by statute; and as it is impossible to lay down any general rule on the subject, the statutes and decisions of each particu- lar jurisdiction should be consulted relative to the remedy by appeal or error, habeas corpus, or certiorari, when the occasion presents it- self. See. on this subject, Rapalje, Contempt, §§ 141-162. (573) CHAPTER XXXI. DISMISSAL OP SUITS PRIOR TO HEARING. § 561. Dismissal of unauthorized suits. If a solicitor files a bill without having proper authority from the complainant to do so, the proper course for the party to pursue if he wishes to get rid of the suit is to move that the bill may be dismissed, with costs to be paid by the solicitor iiling the bill. This motion may be made by the complainant in per- son, or by solicitor duly authorized to make the motion.^^/ If the name of a person is made use of in a bill as co-complainant with others, without his consent, he may move that his name be stricken out, and that the solicitor who tiled the bill be ordered to pay the costs.^ The motion should be made as soon as pos- sible after the complainant has become acquainted with the fact of a suit having been instituted in his name.^ ISTotice of the intended motion must be given to the solicitor who filed the bill, and where one or more, but not all, the complainants, move, no- tice must also be served on the co-complainants and on the de- fendants. Where a sole complainant applies, service on the de- fendants is unnecessary, at least before decree.* The motion should be supported by the affidavit of the complainant himself.^ To avoid the effect of such an application, the solicitor against whom it is made must show distinctly, upon affidavit, that he 1 1 Barbour, Ch. Pr. 226 ; Beach, Mod. Eq. Pr. § 449 ; Palmer v. Wales- by, 3 Ch. App. 732; Crossley v. Crowther, 9 Hare, 384. See Graven- stine's Appeal, 49 Pa. 310, citing Adams, Eq. 314; supra, §§, 119, 172, 183. 2 1 Barbour, Ch. Pr. 227; Wilson v. Wilson, 1 Jac. & W. 457. 3 1 Danlell, Ch. PI. & Pr. (4th Ed.) 308; Hall v. Laver, 1 Hare, 571; Dundas v. Dutens, 2 Cox, 235. il Daniell, Ch. PI. & Pr. (4th Ed.) 308; Jerdein v. Bright, 10 Wkly. Rep. 380; Tabbernor v. Tabbernor, 2 Keen, 679; Pinner v. Knights, 6 Beav. 174; Hood v. Phillips, 6 Beav. 176. 5 1 Barbour, Ch. Pr. 227. (574) Ch. 31] DISMISSAL PRIOR TO HEARING. § 553 had especial authority from the party to institute the suit, and it will not do to assert generally that authority had been given. ^ One of several complainants cannot have the whole bill dis- missed for making him a party without authority.'' The court may dismiss a bill on its own motion, when its attention is called to the fact that the sviit is being prosecuted without legal authority.® § 562. Dismissal on motion of complainant. By the English chancery practice, the complainant retains the absolute control of the suit, and may dismiss it if he chooses at any time before decree.^ The complainant has a right to 6 1 Barbour, Oh. Pr. 227; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 308; Wright v. Castle, 3 Mer. 12. 7 Green v. Pagan's Distributees, 15 Ala. 335. 8 Town of Kankakee v. Kankakee & I. R. Co., 115 111. 90, 3 N. B. 741; Prye's Adm'rs v. County of Calhoun, 14 111. 132. 9 1 Barbour, Ch. Pr. 228; Carrington v. Holly, 1 Dickens, 281; Reilly V. Reilly, 139 111. 182, 28 N. B. 960; Simpson v. Brewster, 9 Paige (N. Y.) 245; Cummins v. Bennett, 8 Paige (N. Y.) 79; Smith v. Smith, 2 Blackf. (Ind.) 233; Cook v. Walker, 24 Ga. 331; Howard v. Bugbee, 25 Ala. 548; Mason v. York & C. R. Co., 52 Me. 82; Lowenstein v. Glide- well, 5 Dill. 325, Fed. Cas. No. 8,575; Kempton v. Burgess, 136 Mass. 192; Phillips v. Wormley, 58 Miss. 398; Saylor's Appeal, 39 Pa. 495; Bossard v. Lester, 2 McCord, Eq. (S. C.) 419; Connecticut & P. R?"Co. V. Hendee, 27 Fed. 678; Moore v. Tilman, 106 Tenn. 361, 61 S. W. 61; Gillespie v. McBwen, 1 Tenn. Cas. 400; Bates v. Skidmore, 170 111. 233, 48 N. E. 962. "There are some cases holding that the chancellor has a discretion, and may in certain cases, likely to work a hardship to the defendant, refuse to allow a complainant to dismiss his bill; but these cases are not, in our opinion, in harmony with the current of authority, and we are not inclined to change the rule we have estab- lished." Reilly v. Reilly, 139 111. 184, 28 N. E. 960. See Bates v. Skid- more, 170 111. 233, 48 N. E. 962; Stokes v. Little, 65 111. App. 255. Among eases holding that the court has such discretion are Moore V. Tilman, 106 Tenn. 361, 61 S. W. 61; Stevens v. Railroads, 4 Fed. 97; Bank of South Carolina v. Rose, 1 Rich. Eq. (S. C.) 294; Bethia v. McKay, 1 Cheeves, Bq. (S. C.) 93; Booth v. Leycester, 1 Keen, 247; Badger v. Badger, 1 Cliff. 237, Fed. Cas. No. 717; City of Detroit v. Detroit City Ry. Co., 55 Fed. 569. See, also, Pullman's Palace Car Co. V. Central Transportation Co., 171 U. S. 138, considering such excep- tions. (5Y5) § 562 EQUITY PLEADING AND PRACTICE. [Ch. 31 dismiss his bill, at any time before final decree, as to all or a part of the defendants. This is a motion of course.^'' After a decree, however, the court will not suffer the complainant to dismiss his bill, unless upon consent; for all parties are inter- ested in a decree, and any party may take such steps as he may be advised, to have the effect of it.^^ It is held in the federal courts that, after a decree on the merits, referring the cause to a master to take an account, a complainant cannot discontinue as of right, and, if such discontinuance can be had, it is only when some equity therefor is shovni.-'^ Generally, a complainant may dis- miss his bill without prejudice after the cause has been heard on the evidence as reported by the master, and taken under advise- ment, where no decree has been rendered, or determination made of the rights of either party.^ ^ The complainant has a right to dismiss his bill before the entry of final decree, even though the chancellor has orally announced his decision.-'* In some juris- dictions it is held that, after the filing of a cross bill seeking af- firmative relief, the complainant can dismiss his bill.-'^ In oth- 10 1 Barbour, Ch. Pr. 225; Dixon v. Parks, 1 Ves. Jr. 402; Blair v. Reading, 99 111. 600; RelUy v. Reilly, 139 III. 180, 28 N. E. 960. Ill Barbour, Ch. Pr. 228; Reilly v. Reilly, 139 111. 180, 28 N. E. 960; Hall V. McPherson, 3 Bland (Md.) 529; Gilbert v. Hawles, 1 Ch. Cas. 40; Carrington v. Holly, 1 Dickens, 280; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702. 12 Garner v. Second Nat. Bank of Providence, 33 U. S. App. 91, 67 Fed. 833; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702. isLanglois v. Matthiessen, 155 111. 230, 40 N. E. 496; Bossard v. Les- ter, 2 McCord, Eq. (S. C.) 419. 1* Purdy V. Henslee, 97 111. 389. But see McCurdy v. Mather, Kirby (Conn.) 273; Moriarty v. Mason, 47 Conn. 436. Where the suit has reached a stage where defendants are interested in having a decree previously rendered maintained, and other matters settled, in order that justice may be done between them, and a further decree is necessary, complainant cannot dismiss the bill without their consent. State v. Hemingway, 69 Miss. 491, 10 So. 575; American Bell Telephone Co. v. Western Union Telegraph Co., 21 U. S. App. 627, 69 Fed. 666; Chicago & A. R. Co. V. Union Rolling Mill Co., 109 U. S. 702; City of Detroit v. Detroit City Ry. Co., 55 Fed. 169; Davis v. Schwartz, 155 U. S. 631; Kimberly v. Arms, 129 U. S. 513. 15 Waite V. Wingate, 4 Wash. 324, 30 Pac. 81, citing Elderkin v. Fitch, (576) Ch. 31] DISMISSAL PRIOR TO HEARING. § 562 er jurisdictions it is declared that a complainant cannot dismiss his bill without prejudice after the filing of a cross bill against him.-'-® 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 dismissal of the latter necessarily disposes of the former ; but where the cross bill sets up additional facts not alleged in the original bill, relating to the subject-matter, and prays for affirmative relief, upon the dismissal of the original bill the cross bill remains for disposi- tion in the same manner as if it had been filed as an original bill.-^^ It is held that where, on the face of a cross bill, there is no equity, leave to the complainant to dismiss the original bill cannot prejudice the defendant.^* The cross bill may be re- 2 Ind. 90; McGuire v. Van Buren County Circuit Judge, 69 Mich. 593, 37 N. W. 568. 16 City of Detroit v. Detroit City Ry. Co., 55 Fed. 569; Bank of South Carolina v. Rose, 1 Rich. Eq. (S. C.) 294; Booth v. Leycester, 1 Keen, 247; Western Union Telegraph Co. v. American Bell Telephone Co., 50 Fed. 662. 17 Lo-wenstein v. Glide-well, 5 Dill. 325, Fed. Gas. No. 8,575, citing Worrell v. Wade's Heirs, 17 Iowa, 96; Markell v. Kasson, 31 Fed. 104; Small V. Peters, 104 Fed. 401. By statute in Illinois it is provided that no complainant shall be allowed to dismiss his bill after a cross bill has been filed, without the consent of the defendant. Rev. St. 111. c. 22, § 36. This statute has been construed to not prevent a complain- ant from dismissing his bill as to a defendant not a complainant in the cross bill. No defendant can avail himself of this statute unless he has, by himself or in connection with other defendants, filed a cross bill before application is made to dismiss. Blair v. Reading, 99 111. 600. The statute does not prevent a complainant from dismissing his bill without defendant's consent after the cross bill has been dismissed on demurrer. Ogle v. Koerner, 140 111. 170, 29 N. E. 563. Where the de- fendants claim that their answer should be treated as a cross bill, but no steps are taken to compel an answer to it, and the defendants have voluntarily gone to a hearing, such contention must be regarded as abandoned, and consequently the complainants have a right to dismiss their bill. Purdy v. HenslQe, 97 111. 389. Where a complainant moves to dismiss his bill as to a defendant before such defendant asks leave to file a cross bill, the motion to dismiss has the precedence, and should be first decided. Blair v. Reading, 99 111. 600. 18 Jacoway v. McGarrah, 21 Ark. 347. (57Y) Equity— 37 § 563 EQUITY PLEADING AND PRACTICE. [Ch. 31 tained, although the original bill is dismissed.^® Though the dismissal of the bill may not abrogate or set aside matter finally adjudicated and determined in the progress of a cause, yet all matters merely interlocutory and unexecuted go with a bill when it is dismissed.^" Where a bill is filed on behalf of the com- plainant and all others of the same class, the complainant may dismiss the bill at his pleasure, before decree, but he cannot ■do so afterwards, or if other complainants have become parties to the suit.^^ The original complainant may dismiss the suit so far as he is concerned, but it may still be prosecuted by the other parties complainant, who have become parties to the suit for their own benefit. ^^ i 563. Effect of agreements csncerning dismissal. Where the parties to a suit enter into a stipulation, and agree that a decree shall be entered therein according to the case made by the pleadings, neither party can take any further steps in the cause, and an order granting the complainant the right to dis- miss will be reversed. Courts will compel parties to perform 18 Small V. Peters, 104 Fed. 401; Ralls v. Ralls, 82 111. 243; Wilkinson V. Roper, 74 Ala. 140; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Slgman v. Lundy, 66 Miss. 522, 6 So. 245; Dawson v. Amey, 40 N. J. Bq. 494, 4 Atl. 442; Coogan v. McCarren, 50 N. J. Bq. 611, 25 Atl. 330. 20 Jenkins v. Bell, 2 Rich. Eq. (S. C.) 144. The effect of a reversal of a decree being to leave the cause pending for hearing, precisely as if no decree had been rendered, the complainant may dismiss his bill after such reversal. Mohler v. Wiltberger, 74 111. 163; Chickering v. Failes, 29 111. 294. 21 Piedmont & Arlington Life Ins. Co. v. Maury, 75 Va. 509; 1 Bar- bour, Ch. Pr. 228; Lashley v. Hogg, 11 Ves. 602; Belmont Nail Co. v. Columbia Iron & Steel Co., 46 Fed. 336; Hanford v. Storie, 2 Sim. & S. 196; Inness v. Lansing, 7 Paige (N. Y.) 583. See 1 Daniell, Ch. PI. & Pr. (4th Ed.) 794; Pemberton v. Topham, 1 Beav. 316; Stephen- son V. Taverners, 9 Grat. (Va.) 398; Thompson v. Fisler, 33 N. J. Eq. 480; Pott V. Gallini, 1 Sim. & S. 206; Moore v. Prior, 2 Younge & C. 375; Collins v. Taylor's Bx'rs, 4 N. J. Bq. 163; Woodgate v. Field, 2 Hare, 211. 22 Piedmont & Arlington Life Ins. Co. v. Maury, 75 Va. 508; Sim- mons V. Lyles, 27 Grat. (Va.) 922. See McDougald v. Dougherty, 11 Ga. 570. (578) Ch. 31] DISMISSAL PRIOR TO HEARING. | 557 their agreements. ^2^ The court has held that a verbal agreement to dismiss must be complied with.^* § 564. Dismissal of part of a bill. There is a difference of opinion as to the right of the com- plainant to dismiss his bill as to part of the relief prayed, and proceed with the residue. It has been said that there is no doubt but that a complainant has the right to dismiss his suit in whole or in part.^^ On the other hand, it has been said that there is no precedent for allowing a complainant to voluntarily dismiss his bill as to part of the relief prayed for in it, and to permit him to proceed with the residue.^® I 565. Dismissal by one of several complainants. It is held that a bill may be dismissed by one co-complainant, where the defendant consents thereto, without the consent of the other complainant ;^'' but this rule is subject to the qualification that it will not in any way injure the other complainant.^* S 566. Dismissal of bill by one in contempt. It is held that one in contempt cannot dismiss his bill until he has purged himself of his contempt.^® § 567. Dismissal of bill as to portion of defendants. A complainant can discontinue as to some of the defend- 23 Coultas V. Green, 43 111. 277. 24Coultas V. Green, 43 111. 277; Toupin v. Gargnier, 12 111. 79. 25 Lyster v. Stickney, 12 Fed. 609. 26 Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 69. 27 1 Barbour, Ch. Pr. 227; Langdale v. Langdale, 13 Ves. 167; Bathew V. Needham, Prac. Reg. 179. 28 1 Barbour, Ch. Pr. 227; 1 Daniell, Ch. PI. & Pr. (4th Ed.) 792; Holkirk v. Holkirk, 4 Madd. 50; Winthrop v. Murray, 7 Hare, 152. See Beach, Mod. Eq. Pr. § 456. 29 Smith V. Smith, 2 Blackf. (Ind.) 232; Sea Ins. Co. v. Day, 9 Paige (N. Y.) 247; Elderkin v. Fitch, 2 Ind. 90. See supra, § 559. Mere failure to comply with an interlocutory order of the court does not of itself so place him in contempt as to prevent him from dismissing tis bill on payment of costs. Smith v. Smith, 2 Blackf. (Ind.) 232. (579) § 568 EQUITY PLEADING AND PRACTICE. [Ch. 31 ants.^" The rule seems to be different where the defendants are jointly interested.^^ § 568. Costs on voluntary dismissal. Dismissal before appearance isn\rithout costs to the complain- ant.^^ The rule is well settled by the English decisions that the court will not, after appearance, make an order dismissing a bill on the complainant's application without costs, unless by con- sent of the defendant.^^ A complainant suing as a poor person may dismiss his bill without costs, save where his admission so to sue took place subsequently to the filing of the bill. This is also true where the defendant, by his own act, has rendered it impossible for the complainant to attain the object of his suit. So, a personal representative, having commenced a wrong suit by mistake, or subsequently finding it useless to proceed, may discontinue without payment of costs.** An order grant- ing leave to dismiss upon payment of costs does not terminate the suit, except at the election of the defendant, until the costs are paid. It is optional with the defendant whether he will consider the case dismissed, and procure the enforcement of 30 Bradley v. Merrill, 88 Me. 319, 34 Atl. 160. See, also, Coston v. Coston, 66 Ga. 382; Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837; Wil- lard V. Wood, 1 App. D. G. 44. He may do so upon payment of costs, or without, if they are not claimed by the respondent. Bradley v. Mer- rill, 88 Me. 319, 34 Atl. 160. 31 Willard v. Wood, 1 App. D. C. 44. A bill may be dismissed as against one defendant without being dismissed against the others, but that general rule does not apply to executors or administrators who are joint defendants. Willard v. Wood, 1 App. D. C. 44. Where a bill against two executors of an estate is, by order of complainant, dis- missed as against the one who has been the active executor in the ad- ministration of the estate, such order operates to dismiss the bill as against the other. Willard v. Wood, 1 App. D. C. 44. 32 Thompson v. ThompsQp, 7 Beav. 350. 33 1 Barbour, Ch. Pr. 225; Dixon v. Parks, 1 Ves. Jr. 402; Lewis v. Germond, 1 Paige (N. Y.) 300; Anonymous, 1 Ves. Jr. 140; Fldelle v. Evans, 1 Cox, 27. 3*1 Barbour, Ch. Pr. 225, 226; Arnoux v. Steinbrenner, 1 Paige (N. Y.) 82; Knox v. Brown, 2 Brown Ch. 185. (580) Ch. 31] DISMISSAL PRIOR TO HEARING. § 570 the order to pay costs or to proceed as if no order had been granted.^** § 569. Effect of voluntary dismissal. The voluntary dismissal by the complainant of his bill before a decree or decretal order has been made affecting the rights of the parties is no bar to another suit for the same cause.^® It is | always desirable, in case of a voluntary dismissal, to have the I order recite that it was dismissed without prejudice.^y'' An or- der directing the payment of money into court is vacated by the dismissal of the bill on motion of the complainant.^® § 570. Form of order of voluntary dismissal. [Title of court and cause.] This cause coming on this day to be lieard, the complainant being present in open court by E. F., his solicitor, and the defendant by G. H., his solicitor, and the complainant moving for leave to dismiss his bill in this cause, without prejudice, on motion of E. F., solicitor for com- plainant, and the court being fully advised in the premises, 35 Jerome v. Seymour, Walk. (Mich.) 359; Cummins v. Bennett, 8 Paige (N. Y.) 79; Saxton v. Stowell, 11 Paige (N. Y.) 526. 35 Beach, Mod. Eq. Pr. § 461; Jerome v. Seymour, Walk. (Mich.) 359; Cummins v. Bennett, 8 Paige (N. Y.) 79; Saxton v. Stowell, 11 Paige (N. Y.) 526. 36 1 Smith, Ch. Pr. 338; Carrington v. Holly, 1 Dickens, 280; Sea Ins. Co. V. Day, 9 Paige (N. Y.) 247; Mabry v. Churchwell, 1 Lea (Tenn.) 416; Stevens v. Railroads, 4 Fed. 97; Vaneman v. Fairbrother, 7 Blackf. (Ind.) 541; Babb v. Mackey, 10 Wis. 314; 1 Barbour, Ch. Pr. 228; Brandlyn v. Ord, 1 Atk. 571; Bowden v. Beauchamp, 2 Atk. 82. It is said that, if a complainant dismisses after the cause has been set for hearing, it will have the effect, unless otherwise ordered by the chan- ijellor, of a dismissal on the merits, and may be pleaded in bar of an- other suit. Phillips V. Wormley, 58 Miss. 398, citing 1 Danlell, Ch. PI. & Pr. (5th Ed.) 793. The statement of the text writer is supported by a citation to Ord. in Chancery, xxiii. 13. sTKempton v. Burgess, 136 Mass. 192; Bigelow v. Winsor, 1 Gray (Mass.) 299; Lyon v. Perln & Gaff Mfg. Co., 125 U. S. 698; Hollings- worth & Vose Co. v. Foxborough Water-Supply Dist, 171 Mass. 450, 50 N.. E. 1037. 38 Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720, citing Loeb v. Willis, 100 N. Y. 231, 3 N. B. 177; Cartmell v. McClaren, 12 Heisk. (Tenn.) 41. (581) § 572 EQUITY PLEADING AND PRACTICE. [Ch. 31 § 571. Reinstatement after voluntary dismissal.-- u ' ^' There is a difference of opinion concerning the right of a complainant to have his bill reinstated after a voluntary dis- missal. In some cases it is held that when he is allowed to dismiss his hill without prejudice, he may move to reinstate it,^" but it is elsewhere held that a bill which has been volun- tarily dismissed by the complainant cannot be reinstated unless the dismissal was obtained by fraud.*" It was held that, after a bill had been dismissed for four years, there could be no re- vival of the suit, so as to permit amendment of the pleadings or the coming in of new parties.*^ § 572. Involuntary dismissal. — In general. In equity the law as to nonsuits has no application.^^ A de- f fendant may, however, in equity, in certain instances, move for \ the dismissal of the billy Any party may insist that the suit be dismissed as to a person not interested in the subject-matter thereof.*^ It is said that it is no objection to the dismissal of a bill having no equity that the motion was made by a defendani while he was in contempt for want of an answer ;** but where the allegations authorize any decree whatever against such defend- ant, it is error to dismiss it as to him.*^ One defendant may move to dismiss the bill for want of prosecution, though his solicitor is also retained for other defendants, who have not answered.** 39 Warner v. Graves, 25 Ga. 369;" Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837. 4" o.^^han Asylum Soc. v. McCartee, Hopk. Ch. (N. Y.) 423. See Doss V. Tyack, 14 How. (U. S.) 297; Edwards v. Ferryman, 18 Ga. 374. 41 Harris v. Hines, 59 Ga. 427. See Swing's Heirs v. Handley's Ex'rs, 4 Litt. (Ky.) 346, 14 Am. Dec. 140. 42 strong V. Weir, 47 S. C. 307, 25 S. E. 157; Woolfolk v. Graniteville Mfg. Co., 22 S. C. 332. 43 Johnson v. Miller, 50 111. App. 60. 44 Smith V. Rohinson, 11 Ala. 840. See, for consideration of rights of defendant in contempt, Mussina v. Bartlett, 8 Port. (Ala.) 277. 45 Hogan v. Smith, 16 Ala. 600. See, for dismissal at instance of de- fendant in contempt. Anonymous, 9 Ves. 512; Anonymous, 15 Ves. 174; Cranstown v. Goldshede, 2 Younge & C. 70; Howe v. Grey, 36 Law J. Ch. 488. 46 De Luze v. Loder, 3 Edw. Ch. (N. Y.) 419. (582) Ch. 31J DISMISSAL PRIOR TO HEARING. § 573. § 573. Dismissal for want of prosecution. The court will, on motion of a defendant, dismiss a bill for' want of prosecution, where considerable delay has ensiied. / Thus, where a complainant unreasonably delays compelling an issue as to the defendants, or any of them, or taking the bill for confessed as to those not answering, the defendants as to whom the cause is at issue, if being injured by the delay, may have an order, on proper application and showing, to compel the complainant to speed the cause, or have his bill dismissed.*'^ A bill will not be dismissed for want of prosecution if necessary parties have not been served, or, being served, have not an- swered, where there is no negligence on the part of the com- plainant;** or after the appointment of a master to take testi- mony, and before his report, where the complainant is in no more fault with relation to the delay than the defendant;'*® or where a demurrer is pending, and the defendants may them- selves expedite the cause by noticing the demurrer for argu- ment ;^'^ or where the delay was at the request of the defend- ant, and for his benefit. ^■'- The filing of a replication without taking any further step in the cause is not a compliance with a rule to speed the cause. ^^ Where, on motion to dismiss for *7 Gilbert v. Van Arman, 1 Flip. 421, Fed. Gas. No. 5,414; Elecirolibra- tion, Co. v. Jackson, 52 Fed. 773; Morgan v. Currie, 3 A. K. Marsh. (Ky.) 293; Whitney v. City of New York, 1 Paige (N. Y.) 548; Vermilyea v. Odell, 4 Paige (N. Y.) 121; Holmes v. Swilliams, 11 N. C. 371; Colding v. Badger, 3 Rich. Eq. (S. C.) 368. *8 Hoxey v. Carey, 12 Ga. 534. It Is held that a bill will not be dis- missed for want of prosecution against a co-defendant, who has not been served, until the complainant has been given a reasonable time to pro- cure service on him, and that he will be allowed more than six months, where such defendant resides out of the state. Blanchard v. Bigelow, 109 Fed. 275; Jessup v. Illinois Cent. R. Co., 36 Fed. 735. 49 Warren v. Shaw, 43 Me. 429. 50 McVickar v. Filer, 24 Mich. 241. 61 Person v. Nevitt, 32 Miss. 180. B2West V. Paige, 9 N. J. Eq. 203. The filing of a replication after notice given of a motion to dismiss the bill for want thereof is good cause against the motion, but it will only be allowed on payment of costs. Griswold v. Inman, Hopk. Ch. (N. Y.) 86. A dismissal for (583) § 573 EQUITY PLEADIN(3 AND PRACTICE. [Ch. 31 delay, the complainant expedited the cause, between the notice and the making of the motion, the bill was not dismissed, but he was required to pay the costs of the motion.^^ What consti- tutes laches in the prosecution of a case is dependent upon par- ticular facts.^* The complainant is entitled to notice of a mo- tion to dismiss for want of prosecution, and a peremptory order of dismissal without notice, and without giving reasonable time to proceed, is erroneous.^® Where either party is at lib- erty to proceed in the cause, such motion ' can only be made where there are other defendants against whom the cause is not in readiness for a hearing, in consequence of the neglect of the complainant to expedite the proceedings against them.^® Where the defendant's answer is accompanied by a plea or demurrer, he cannot obtain an order to dismiss the bill for want of prose- cution until the demurrer or plea has been disposed of.^'' The dismissal for want of prosecution should be made without prej- udice f^ but it is held that a dismissal for want of prosecution is not a bar to another bill for the same cause, and that the addition by the court of the words "without prejudice" to the decree of dismissal after it is made, without notice to either of want of prosecution while the case is pending on a reference before a master is not, under certain circumstances, erroneous. Gordon v. Gor- don, 25 111. App. 310. 53 Tingle v. Parten, 3 Edw. Ch. (N. Y.) 228. 54 Failure to take out a subpoena for two years after the filing of a bill has been held to warrant dismissal. Bancroft v. Sawin, 143 Mass. 144, 9 N. *E. 539. For cases considering what constitutes laches in this connection, see Lang v. Belloff, 53 N. J. Eq. 298, 31 Atl. 604; Sebring's Adm'r v. Sebring's Adm'r, 43 N. J. Eq. 59, 10 Atl. 193; Dey v. Hatha- way Printing, Telegraph & Telephone Co., 41 N. J. Eq. 419, 4 Atl. 675; Beirne v. Wadsworth, 36 Fed, 614; Sargeant v. First Nat. Bank of Easton, 6 V/kly. Notes Cas. 370, Fed. Cas. No. 12,359; Lee v. Cargill, 10 N. J. Eq. 331. 55H,oxey t. Carey, 12 Ga. 534; Kain v. Ross, 1 Lea (Tenn.) 76; 1 Smith, Ch. Pr. 314 et seq. 50 Whitney v. City of New York, 1 Paige (N. Y.) 548. 57 1 Barbour, Ch. Pr. 243. 58 Cleaver v. Smith, 114 111. 114, 29 N. E. 682; Moseby v. Lewis' Adm'rs, 4 Litt. (Ky.) 159; Ellis v. Baird, 6 Munf. (Va.) 456. (584) Ch. 31] DISMISSAL PRIOR TO HEARING. § 574 the parties to the suit, does not affect the rights of the parties. ^^ A decree erroneously dismissing a bill for want of equity, in- stead of for want of prosecution, should be reversed, and a dis- missal without prejudice ordered.®" Under the English prac- tice the defendant could not move to dismiss the bill after the complainant had obtained and served an order to amend. Mere- ly obtaining the order, however, if it was not drawn up and served before the defendant moved to dismiss, would not prevent the dismissal of the bill.®^ The defendant cannot move to dis- miss the bill for want of prosecution pending an abatement of the suit by marriage or bankruptcy of the complainant.®^ § 574. Dismissal of bill on motion for want of equity. Motions to dismiss bills for want of equity have, in certain 1 circumstances, been considered and allowed, but they are gen- \ erally conceded to be not according to approved practice. Such j a motion is held to amount to a general demurrer to a bill, and ' to be based on the case made by the bill, and to admit its alle- 1 gations, so far as they are well pleaded, to be true.®^ This mo- \ tion should not be granted unless it is clear that the bill cannot 1 be made good by amendment.®* There is a difference of opin- ion concerning the right to move for the dismissal of a bill. In the federal courts it is held that the practice of dismissing a bill on motion, made while the parties are perfecting their plead- 59 state V. Larrabee, 3 Chand. (Wis.) 179. 60 Cleaver v. Smith, 114 111. 114, 29 N. E. 682. ei 1 Barbour, Ch. Pr. 243. 62 1 Barbour, Ch. Pr. 244; Canham v. Vincent, 8 Sim. 277; Sellers v. Dawson, 2 Dickens, 738; Hall v. Chapman, 1 Dickens, 34'8; French v. Barton, 18 Ves. 425, note. 63 Grimes v. Grimes, 143 111. 550, 32 N. E. 847; Werborn's Adm'r v. Kahn, 93 Ala. 201, 9 So. 729; Clark v. Ewlng, 93 111. 572; Cox v. Mobile & G. R. Co., 44 Ala. 611; Hickey v. Stone, 60 111. 458. See supra, § 195. 64 Grimes v. Grimes, 143 111. 550, 32 N. B. 847; Hooper v. Savannah & M. R. Co., 69 Ala. 529. See, also, Thompson v. Paul, 8 Humph. (Tenn.) 114; Holman v. Holman, 3 Desaus. (S. C.) 210; Fuller v. Met- ropolitan Life Ins. Co., 31 Fed. 696. (585) § 575 EQUITY PLEADING AND PRACTICE. [Ch. 31 ings, will not be sanctioned.®^ In other jurisdictions it is held that such a motion will be entertained at any stage of the pro- ceedings.®® § 575. Dismissal on court's own motion. The court may, at any stage of the proceedings, dismiss a bill which shows on its face that the complainant has an ade- quate remedy at law j^''^ or where it fails to state facts entitling the complainant to relief j^^ or where it is manifest that it has no jurisdiction over the subject-matter of the suit f^ or where the bill is multifarious.'''' The chancellor rarely, sua sponte, dis- ss Betts V. Lewis, 19 How. (U. S.) 72; La Vega v. Lapsley, 1 Woods, 428, Fed. Cas. No. 8,123; Fuller v. Metropolitan Life Ins. Co., 3i Fed. 696. seHaughy v. Strang, 2 Port. (Ala.) 177; Springer v. Walters, 37 111. App. 326. An objection to the jurisdiction of the court for any reason not apparent on the face of the bill must be taken by special plea. It is only in cases where the want of jurisdiction affirmatively appears upon the face of the bill that it can be raised by motion. A motion to dismiss is not a proper mode of raising the defense of former ad- judication. It should be presented either by a plea in bar or by evi- dence introduced under the answer. Desert King Min. Co. v. Wede- kind, 110 Fed. 873; Wood v. Mann, 1 Sumn. 578, Fed. Cas. No. 17,952; WicklifEe v. Owings, 17 How. (U. S.) 47; Mexican Cent. Ry. Co. v. Pink- ney, 149 U. S. 194. 67 Harris v. Galbraith, 43 111. 309; Hine v. City of New Haven, 40 Conn. 478; Dumont v. Fry, 12 Fed. 21; Lewis v. Cocks, 23 Wall. (U. S.) 466; Dennison Paper Mfg. Co. v. Robinson Mfg. Co., 74 Me. 116; Gage V. Schmidt, 104 111. 106; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black (U. S.) 545; McGuire v. Pensacola City Co., 105 Fed. 677. 68 Fougeres v. Jones, 66 Fed. 316; Earles v. Earles, 3 Head (Tenn.) 366. 69 Kimball v. Walker, 30 111. 482; Richards v. Lake Shore & M. S. Ry. Co., 124 111. 516, 16 N. B. 909; Charleston Ins. Co. v. Potter, 3 De- saus. (S. C.) 6; Earles v. Earles, 3 Head (Tenn.) 366; Parker v. Win- nipiseogee Lake Cotton & Woolen Co., 2 Black (U. S.) 545; Johnston V. Shaw, 31 Ala. 592; Small v. Lutz, 34 Or. 131, 55 Pac. 529; Reynes v. Dumont, 130 U. S. 354; Pittsburgh & Alleghany Drove Yard Co.'s Ap- peal, 123 Pa. 250, 16 Atl. 625. 70 City of Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078; Chew V. Bank of Baltimore, 14 Md. 299; Felder v. Davis, 17 Ala. 418; Green- wood v. Churchill, 1 Mylne & K. 546. (586) Ch. 31] DISMISSAL PRIOR TO HEARING. | 576 misses a bill for nniltifariousness.''^ It should only be done when it is found impracticable from this cause to make a proper decree doing justice between the parties, or, perhaps, where it satisfactorily appears that the defendant may be embarrassed or otherwise prejudiced in his defenseJ^ § 576. Dismissal for defect of parties. As a general rule, a bill is not dismissed for nonjoinder of necessary parties, without an opportunity first given to the com- plainant to amend.^^ This rule rests upon the supposition that the fault may be remedied, and the necessary parties supplied, but does not apply .when this is impossible, and whenever a de- cree cannot be made without prejudice to one not a party.'^* But if, after objection to a bill for want of necessary parties, the complaiilant neglects or refuses to bring them before the court, the bill will be dismissed.'''^ The misjoinder of parties defendant is not a sufficient cause for the dismissal of a bill, as it respects other parties than those improperly joined,^ ^ but it is a sufficient ground for dismissal that a person having no 71 Bean v. Bean'fi Adm'r, 37 Ala. 17 ; Chew v. Bank of Baltimore, 14 Md. 299. 72 Wales v. Newbould, 9 Mich. 45, 82. "Colbert v. Daniol, 32 Ala. 314; Thomas v. Adams, 30 111. 37; Hunt V. Wickliffe, 2 Pet. (U. S.) 201; Nash v. Smith, 6 Conn. 421; Smith v. Smith, 4 Rand. (Va.) 95; Welton v. Hutton, 9 W. Va. 339; Bugbee v. Sargent, 23 Me. 269; Mannhardt v. Illinois Staats Zeitung Co., 90 111. App. 315; Knapp v. Marshall, 26 111. 63; City of Wilmington v. Addicks (Del. Ch.) 43 Atl. 297; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427; Satterthwait v. Marshall, 4 Del. Ch. 337. 74 Fourth Nat. Bank of New York v. New Orleans & Carrollton R. Co., 11 Wall. (U. S.) 624; Dusk v. Thatcher, 102 111. 60; Picquet v. Swan, 5 Mason, 561, Fed. Cas. No. 11,135. 75 Greenleaf v. Queen, 1 Pet. (U. S.) 138; Jones v. Brittan, 1 Woods, 667, Fed. Cas. No. 7,455; Hunt v. Wickliffe, 2 Pet. (U. S.) 201; Single- ton v. Gayle, 8 Port. (Ala.) 270; Bailey v. Myriok, 36 Me. 50; Van Epps V. Van Deusen, 4 Paige (N. Y.) 64; Huston v. McClarty's Heirs, 3 Litt. (Ky.) 274. 76 Bugbee v. Sargent, 23 Me. 269; Cookburn v. Thompson, 16 Ves. 321; Covenhaven v. Shuler, 2 Paige (N. Y.) 123. (587) §577 EQUITY PLEADING AND PRACTICE. [Ch. 31 right to sue is joined as co-complainant. '"^ If a plea or de- murrer for want of proper parties is allowed, ttie bill is dis- missed, unless the complainant takes issue upon the plea, or ob- tains leave to amend upon the usual terms.''* § 577. Involuntary dismissal without prejudice. /^ Where the bill is defective for want of proper parties, or for want of necessary allegations, and it appears probable that, on a proper bill, the complainant will be entitled to relief, the bill should be dismissed without prejudice.''® Where it appears that equity has no jurisdiction, the bill should be dismissed with- out prejudices This is the case where there is a complete rem- edy at law, or the court has not jurisdiction of the subject-mat- ter.®'' Where a defendant in an action at law files a bill to make his defense in equity, and asks for a stay of all pro- ceedings, and the court requires him to confess judgment in the action at law as a condition on issuing an injunction, and afterwards, on motion to dissolve such injunction, the court holds that a court of equity is without jurisdiction, the decree should direct that the judgment in the law action be set aside, and the case restored to the condition it was in when the in- junction was granted.*^ 7T Clason V. Lawrence, 3 Edw. Ch. (N. Y.) 48; King of Spain v. Ma- cliado, 4 Russ. 225. 78 Van Epps v. Van Deusen, 4 Paige (N. Y.) 64, 25 Am. Deo. 516. 79 Sheldon v. Harding, 44 111. 68; Stott v. Baskerville, 6 Munf. (Va.) 20; Kirkpatrick v. Buford, 21 Ark. 268, 76 Am. Dec. 363; Barry v. Rogers, 2 Bibb (Ky.) 314; Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258; Patrick's Heirs v. White's Heirs, 6 B. Men. (Ky.) 330; Wil- son V. Eggleston, 27 Mich. 257; Miller v. McCan, 7 Paige (N. Y.) 451; Williams v. Jones, 79 Ala. 119; House v. Mullen, 22 Wall. (U. S.) 42. 80 Lacassagne v. Chapuis, 144 U. S. 119; Gamage v. Harris, 79 Me. 531, 11 Atl. 422; Smith v. Adams, 24 Wend. (N. Y.) 585; Clarke v. Sawyer, 2 Barb. Ch. (N. Y.) 411. Where a cross bill asks relief for- eign to the litigation in behalf of parties who have a right of action at law, it should be dismissed without prejudice. Barrett v. Short, 41 111. App. 25. 81 Miller v. Miller, 25 W. Va. 495; Great Falls Mfg. Co. v. Henry's Adm'r, 25 Grat. (Va.) 575, citing Warwick v. Norvell, 1 Rob. (Va.) 308; Hooper v. Cooke, 2 Jur. 527, pt. 1. (588) Ch. 31] DISMISSAL PRIOR TO HEARING. § 578 § 578. Keinstatement after involuntary dismissal. Although a bill which has been dismissed for want of prose- cution is so effectually out of court that no motion or proceed- ing can be had in the cause, except for the purpose of carrying the order of dismissal into effect, the court will, under certain circumstances, entertain a motion to restore it. It is not, how- ever, the usual course to restore a bill which has been once dis- missed. It must be shown that substantial justice requires that it should be done. There is no instance in which a court has restored a bill which has been regularly dismissed for the mere purpose of agitating the question of costs.^^ Where a bill was dismissed for want of prosecution, and afterwards, at the same term, the order of dismissal was vacated, and the cause rein- stated, without notice to the defendant, it was held in Illinois that he, having been brought into court by service of process, was bound to take notice of orders subsequently made.^* It is gener- ally held that, after dismissal of a bill for want of prosecution, the court has no jurisdiction to reinstate it at a subsequent term.®* The method of restoring a cause after a dismissal for want of prosecution appears to be by obtaining an order to dis- charge the order dismissing the bill, which, under the New York practice, could only be obtained upon the terms of the complain- ant's paying the costs of obtaining that order, and of the applica- tion for the order to discharge it.®® 82 1 Barbour, Ch. Pr. 245; Jackson v. Pownal, 16 Ves. 204; Hannam v. South London Water Works Co., 2 Mer. 63. See Robinson v. Sat- terlee, 3 Sawy. 134, Fed. Cas. No. 11,967. Where a bill has been dis- missed for want of prosecution, and afterwards reinstated, this will be held as a judicial determination that there was no unreasonable delay in the prosecution of it. Tarpley v. Wilson, 33 Miss. 467. 83 Smith V. Brittenham, 98 111. 188. 84Byrd v. McDaniel, 26 Ala. 582; Parker's Heirs v. Anderson's Heirs, 5 T. B. Mon. (Ky.) 445; Miller v. Hemphill, 9 Ark. 488. 85 1 Barbour, Ch. Pr. 245. In Jackson v. Pownal, 16 Ves. 204, the or- der was upon complainant's undertaking to amend within a week, amending the oiSce copy, and not requiring any further answer, and to reply forthwith, and speed his cause to a hearing. (589) § 579 EQUITY PLEADING AND PRACTICE. [Ch. 31 § 579. Effect of involuntary dismissal before hearing. The effect of a dismissal prior to the hearing of a cause has given rise to much discussion, and is involved in some con- fusion.*® It seems to be well settled that a dismissal does not operate as a bar to another bill for the same cause, unless it appears that the suit was dismissed after an examination into the merits.^^ The authorities hold that, where a suit is dis- missed on the sole ground that the court has no jurisdiction of the subject-matter of the suit or of the parties, there is no ad- judication of the merits, and no bar to another suit for the same cause.** Great care should be taken to see that the order dismissing the bill shows that it was not dismissed after a hear- ing on the merits, for it is held that a general decree dismissing the bill, where there is nothing in the record to show whether or not it was heard on the merits, will be presumed to be a de- cree rendered upon a hearing on the merits.*® It seems that, even though the order does not recite that the bill was dismissed without prejudice, the whole record may be examined in order to determine the nature of such dismissal,^" and that wherever, from the face of the record, it affirmatively appears that an or- der of dismissal was based on matters other than the merits, such order of dismissal will not be a bar to a future action.®^ 86 For effect of order reciting dismissal by agreement, see Pethtel V. McOuUougli, 49 W. Va. 520, 39 S. E. 199. STI Barbour, Ch. Pr. 246; Hughes v. United States, 4 Wall. (U. S.) 232; Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Moore v. Grubbs, 3 B. Mon. (Ky.) 77. See Smith v. Auld, 31 Kiin. 266, 1 Pac. 626. 88 Bunker Hill & Sullivan Mining & Concentrating Co. v. Shoshone Min. Co., 109 Fed. 504; Walden v. Bodley, 14 Pet. (U. S.) 156; Hughes V. United States, 4 Wall. (U. S.) 232; Smith v. McNeal, 109 U. S. 426; Freeman, Judgments, § 264; Williams v. Woods, 121 Ala. 536, 25 So. 619; Foster v. Busteed, 100 Mass. 409. 80Foote V. Gibbs, 1 Gray (Mass.) 413; Smith v. Auld, 31 Kan. 266, 1 Pac. 626; Lanphier v. Desmond, 187 111. 370, 58 N. E. 343; Stickney v. Goudy, 132 111. 213, 23 N. E. 1034. See Loudenback v. Collins, 4 Ohio St. 251; Foster v. Busteed, 100 Mass. 409. 00 Smith V. Auld, 31 Kan. 266, 1 Pac. 626, where Judge Brewer care- fully reviews the law of this question. 91 Carlisle v. Howes, 19 Ky. Law Rep. 1238, 43 S. W. 191. (590) Ch. 31] DISMISSAL PRIOR TO HEARING. § 581 § 580. Effect of involuntary dismissal on answer or cross bill. A distinction should be drawn between a cross bill wbich seeks affirmative relief as to other matters than those brought in suit by the bill, yet properly connected therewith, and a cross bill which is iiled simply as a means of defense, since there are rules applicable to one class Vt'hich do not apply to the other. Thus, it is generally held that a dismissal of the original bill carries the cross bill with it when the latter seeks relief by way of defense, but it is otherwise, and relief may still be given, upon a cross bill, where the affirmative relief is sought thereby as to collateral matters, properly presented, in connection with the matters alleged in the bill.^^ § 581. Effect of order of dismissal. A decree of dismissal is a final decree.^* After a dismissal for failure to give security for costs, the chancellor has no power to make any further order in the case, unless it has been duly reinstated.®* 92 Jesup V. Illinois Cent. R. Co., 43 Fed. 483, quoting Story, Eq. PI. § 399, note, and citing Chamley v. Dunsany, 2 Schoales & L. 718; Lad- ner v. Ogden, 31 Miss. 344. See, also, Slason v. Wright, 14 Vt. 208; West Virginia Oil & Oil Land Co. v. Vinal, 14 W. Va. 637; Pennsylvania R. Co. V. National Docks & New Jersey J. C. Ry. Co., 52 N. J. Bq. 555, 30 Atl. 580; Dawson v. Amey, 40 N. J. Eq. 494, 4 Atl. 442. 93 Jones V. Turner, 81 Va. 709. An order dismissing an amended bill will be construed as an order dismissing the bill as amended. Bradish v. Grant, 119 111. 606, 9 N. E. 332, citing 2 Maddock, Ch. Pr. 568. 94 Hill V. Richards, 11 Smedes & M. (Miss.) 194. (591) CHAPTER XXXII. REFERENCE TO A MASTER. § 582. Office and duty of master. A master in chancery is an officer of the court appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to per- form such duties as may 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 master is a judicial officer, acting as the representative and substitute of the court which appointed him.^ The office is of great antiquity, extending back at least to the time of Edward III.^ The duties of masters are vari- ous, and difficult to be specified. It is said that there is no ques- tion of law or equity which a master may not have occasion to decide upon, or respecting which he may not be called upon to report his opinion to the court, and that instances of reference iKimberly v. Arms, 129 U. S. 512; Com. v. Archbald, 195 Pa. 317, 46 Atl. 5. 2 Bate Refrigerating Co. v. Gillette, 28 Fed. 673; Stewart v. Turner, 3 Edw. Ch. (N. Y.) 458. In Illinois it is held that he is but the min- isterial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions, and his powers are delegated to him by the court, and the court can confer on him no judicial powers, and his acts become binding only by being approved and adopted by the court. Hards v. Burton, 79 111. 504. See Shipman v. Fletcher, 91 Va. 473, 22 S. B. 458. 3 Spence, Eq. Jur. 355; Com. v. Archbald, 195 Pa. 317; Bennet, Mast. Ch. 1. For history of the office of master in chancery, see Hoffman, Mast. Ch.; Ennesser v. Hudek, 169 111. 494, 48 N. E. 673; Schuchardt V. People, 99 111. 501. (592) Ch. 32] REFERENCE TO A MASTER. 8 SS2 to a master are almost as numerous as the matters subject to the jurisdiction of the court itself.* A master is usually ap- pointed by the court. The question of the appointment of mas- ters is usually regulated by statute or rule of court. Courts usually have masters appointed for a specific time, who are termed "standing" or "regular" masters of the court.^ The court may appoint a special master upon application made to it for that purpose.® The master should be disinterested in the proceedings before him.^ It is held that a brother of the next friend of the complainant, when such next friend has no interest in the subject-matter of the suit, is competent to act as a commissioner in taking testimony of the complainant.® It is improper for a master to perform any official act as master, in a cause in which he is himself a solicitor, or partner of a solicitor.* It is usually provided by statute or rule of court that the master should give a bond, conditioned for the faithful performance of the duties of his office. A master is liable, un- der certain circumstances, for his official acts.-^" The compen- *1 Barbour, Ch. Pr. 468; Bennet, Mast. Ch. 4. References to a mas- ter upon decrees or decretal orders are generally made for either of the following purposes: (1) To take accounts and make computations; (2) to make inquiries; (3) to perform some special ministerial acts re- quired by the court, such as the sale of property, settlement of deeds, appointment of new trustees, etc. 1 Barbour, Ch. Pr. 468; Com. v. Arch- bald, 195 Pa. 317. 46 Atl. 5. s Van Hook v. Pendleton, 2 Blatchf. 85, Fed. Cas. No. 16,852. For ap- pointment of examiners in federal courts, see Van Hook v. Pendleton, 2 Blatchf. 85, Fed. Cas. No. 16,852. 6 Phillips' Appeal, 68 Pa. 137; Davis v. Davis, 30 111. 180; United States Equity Rule 82. ■? Jordan v. Jordan, 17 Ala. 466; Snyder v. Stafford, 11 Paige (N. Y.) 71; Mostyn v. Spencer, 6 Beav. 135. 8 Jordan v. Jordan, 17 Ala. 466. Brown v. Byrne, Walk. (Mich.) 453; Bowers' Adm'r v. Bowers, 29 Grat. (Va.) 697; Wilhite v. Pearce, 47 111. 413. 10 See Wright v. Bruschke, 62 111. App. 358; Somerall v. Gibbes, 4 McCord (S. C.) 547; Van Doren v. Van Doren, 45 N. J. Eq. 580, 17 Atl. S05; Gill V. Barbour, 80 Va. 11; Fenwicke v. Gibbes, 2 Desaus. (S. C.) 629; McBride v. Farmers' Bank of Salem, 28 Barb. (N. Y.) 476; Tur- pin's Heirs v. McKee's Ex'rs, 7 Dana (Ky.) 301; People v. McLain, 3 111. App. 27. (593) Equity— 38 § 583 EQUITY PLEADING AND PRACTICE. [Ch. 32 sation of masters is largely a matter of local regulation. In many, if not all, jurisdictions, statutory provisions, regulating such compensation, exist. § 583. Power to order reference. As a general rule, a court of equity may hear the cause with- out reference to a master. ^^ It is a matter of discretion with the chancellor whether he will order a reference.-'^ Where an account is to be taken, it is held to be the better practice to have a hearing for the determination of the general rights of the parties, before making the reference, and then to direct the master specially as to the matters referred.-'* It is not errone- ous, though it is bad practice, for the chancellor to take an ac- count himself, except in simple and obvious cases, in order to save expense to litigants. In cases of a complicated character, involving matters of account between the parties, justice cannot well be done without a reference, and the chancellor ought to 11 Central Trust Co. of New York v. Madden, 25 U. S. App. 430. 70 Fed. 451; Goodrich v. Parker, 1 Minn. 195 (Gil. 169) ; Carter v. Lewis, 29 111. 500; May v. May, 19 Fla. 373. 12 Buchanan v. Alwell, 8 Humph. (Tenn.) 516; Com. v. Archbald, 195 Pa. 317, 46 Atl. 5; Glover v. Jones, 95 Me. 303, 49 Atl. 1104. 13 Franklin v. Meyer, 36 Ark. 96. In West Virginia it is held that, if the court overrules a demurrer to a bill, and gives the defendant a certain time in which to answer the bill, it cannot properly order a ref- erence of the cause to a commissioner to ascertain the amount of the complainant's demand till the time has elapsed which was given the de- fendant to answer, nor can it then order such reference, if the answer is filed, and denies all the facts on which the complainant's claim is based. If such answer be filed, no such reference can properly be made till the complainant, by evidence, has proven that he has a de- mand against the defendant. Goff v. McBee, 47 W. Va. 153, 34 S. E. 745; Neely v. Jones, 16 W. Va. 626. See Columbian Equipment Co. v. Mercantile Trust & Deposit Co., 113 Fed. 23. Where an account is to be taken of the rents and profits of land in the possession of a mortgagee, and the taxes paid and repairs made by him, the court, after declaring, by an interlocutory decree, the rights of the parties and the rule to be adopted in stating the account, should then refer the case to a master. Mosier v. Norton, 83 111. 519. See, also, McGillis V. Hogan, 190 111. 176, 60 N. E. 91. (594) Ch. 32] HEPERENCB TO A MASTER. § 584 refer the subject to a master, to take and state the account. The practice of finally hearing, without the intervention of a master and the aid of his report, cases involving the settlement of ac- counts, is unsafe to litigants, and burdensome to the court, and should not be followed.^* Even consent of counsel cannot be allowed to impose on the court the labor of making up com- plicated accounts.^ ° But matters of mere computation, or of ready ascertainment, which can be made by the chancellor with- out interfering with his public duties, are not required to be referred to a master.-^® It is not within the general province of a master to pass upon all the issues in a cause, nor should the court refer the entire decision of the case to him, without the consent of the parties.-^ '^ Reference of the whole cause to a master has become, in later years, a matter of more common occurrence than formerly, though it has always been within the power of the court of chancery, with the consent of parties, to order such a reference.^* i 584. Order of reference. An order of reference should be entered referring the cause i*May V. May, 19 Fla. 373; Bryan v. Morgan, 35 Ark. 113; Bolton V. Flournoy, R. M. Charlt. (Ga.) 125; Bressler v. McCune, 56 111. 475; Quayle v. Guild, 83 111. 553; Roberts' Ex'r y. Dale, 7 B. Men. (Ky.) 199; Doe d. McCall v. Carpenter, 18 How. (U. S.) 297. See Quayle v. Gu;ld, 83 111. 553, reversing a decree, because in such a case a reference was not had; Moss v. McCall, 75 111. 190; Moffett v. Hanner, 154 111. 649, 39 N. E'. 474. 15 French v. Gibbs, 105 111. 523. 18 Ballard v. Lippman, 32 Fla. 481, 14 So. 154. It is improper to order an account merely to establish by testimony the allegations of the bill. Lee County Justices v. Fulkerson, 21 Grat. (Va.) 182; Am- mons V. South Penn Oil Co., 47 W. Va. 610, 35 S. E. 1004; Tilden v. Maslin, 5 W. Va. 377. In South Carolina it is held to be discretionary with the court whether it will order a reference to take testimony pending a motion for the submission of the issues to a jury under a rule of court. Barnwell v. Marion, 58 S. C. 459, 36 S. E. 818. "Early Times Dist. Co. v. Zeiger (N. M.) 66 Pac. 532; Kimberly v. Arms, 129 U. S. 512. 18 Kimberly v. Arms, 129 IT. S. 512; Haggett v. Welsh, 1 Sim. 134; Dowse V. Coxe, 3 Bing. 20; Prior v. Hembrow, 8 Mees. & W. 873. (595) § 585 EQUITY PLEADING AND PRACTICE. [Ch. 32 to the master. It is erroneous to take testimony before a mas- ter without an order of reference, and such error cannot be cured by subsequently entering an order of reference nunc pro tunc}^ The court may, of its own motion, without the con- sent of the parties, order a reference to a master.^" It may usually do so on the application of either party. An order of reference for an account before a master should not be more extensive than the allegations and proofs. ^^ It is said that orders of reference to a master should specify the prin- ciples on which accounts are to be taken, or the inquiry to pro- ceed, so far as the court shall have decided thereon, and the examinations before the master should be limited to such mat- ters within the order as the principles of the decree or order may render necessary.^^ In other jurisdictions, it is said to be not usual to refer accounts with instructions.^^ A decree di- recting a reference for an accounting should not restrict the wit- nesses to the complainant and defendant, to the exclusion of those defendants who have suffered the bill to be taken as confessed. Liberty should be given such defendants to produce evidence.** Where the master fails to comply with the order of reference, a special application for an order to have the defect repaired is the proper proceeding. *° '5 585. Forms of order of reference — (Generally. (Title of court and cause.] This cause coming on for hearing upon the motion of A. B., solicitor for the complainant, and it appearing that due notice of said motion has been given to C. D., solicitor for the said defendant, and the said iBHawley v. Simons, 157 111. 218, 41 N. B. 616; Preston v. Hodgen, 50 111. 56. See Hess v. Voss, 52 111. 472. 20 Smith V. Rowe, 4 Gal. 6. aiConsequa v. Fanning, 3 Johns. Ch. (N. Y.) 587; Ruffner v. Hewitt, 7 W. Va. 608. 22Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. 23 Clements v. Pearson, 39 N. C. 257. 24 Damouth v. Klock, 29 Mich. 289. 25Deimel v. Parker, 59 111. App. 426; Tyler v. Simmons, 6 Paige (N. Y.) 127. (596) . : Ch. 32] REFERENCE TO A MASTER. | 588 complainant and defendant being present in open court, and the court being fully advised in the premises, It is ordered that said cause be and the same is hereby referred to G. B., Esq., one of the masters In chancery of this court, to take proof of all the material allegations in the said bill contained, and report the same to this court, with his opinion on the law and the evidence, with all convenient speed. § 586. Another form. [Title of court and cause.] This cause coming on to be heard this day, on motion of A. B., solicitor for the complainant, that the said cause be referred to a master, and it appearing that the default of all the defendants has been duly entered herein, and the court being fully advised in the premises. It is ordered that this cause be and it is hereby referred to G. B., one of the masters in chancery of this court, to take proof of the material issues raised by the pleadings in said cause, and compute the amount due complainant, and report his conclusions of law and fact, as well as the evidence taken by him, to the court, with all con- venient speed. § 587. Form of order of reference as to alimony. [Title of court and cause.] Upon reading and filing the petition of the above-named complain- ant, duly verified, and the several aflldavits thereto attached, and on hearing A. B., solicitor for the complainant, and C. D., solicitor for the defendant. It is ordered that the said defendant pay to the said complainant, or her solicitor, the sum of $100, in and towards defraying the costs and expenses of this suit, and that execution may issue therefor. It is further ordered that this cause be referred to G. B., one of the masters in chancery of this court, to examine and report what would be a reasonable sum to be allowed for the support of the said complainant during this suit [and, if children are with her, add, "and of the children of the marriage now in her custody and charge"]. It is further ordered that ' said master report as to the times and manner in which the said sums should be paid to the complainant. § 588. Form of order of reference to state an account. [Title of court and cause.] This cause coming on this day to be heard upon the bill of com- plaint, the answer of the defendant to said bill, the replication of the complainant thereto, and the testimony heretofore taken and reported (597) § 590 EQUITY PLEADING AND PRACTICE. [Ch. 32 by G. B., one of the masters in chancery of this court, and the court having heard the arguments of counsel for the respective parties, who are present in court by their respective solicitors, and being fully ad- vised in the premises, finds: [Here insert the finding of the court as to the facts, the rights of the parties, and the rule to be adopted in stating the account.] It is therefore ordered and adjudged that this cause be again re- ferred to the said G. B., one of the masters in chancery of this court, to take the books of account, and all papers referred to in the plead- ings, and the report herein heretofore filed, and state the account be- tween said parties, taking and reporting such testimony, if any, as may be further offered by either of the parties to the suit, outside of the said books of account, documents, etc., and that the said mas- ter first give notice to the said parties respectively of the time and place when and where said account will be taken, and further proof in relation thereto will be taken, if any, and report the said state- ment of account to the court as soon as practicable.26 § 589. Changing master. After a cause has been referred to a master, it cannot be with- drawn from that master without an order of court. Such an order will not be made unless on special circumstances, such as the incapacity of the master, from illness, to attend to the business, which, to justify such a removal, must be shown to be of a very urgent nature.^'^ The court may, in its discretion, change a reference from one master to another.^® § 590. Objections to reference. Objection to a reference to a particular master must be made before the hearing by the master. A party cannot lie by and take the chance of a report in his favor, and then avail himself of the objection when an adverse report is made.^® Objection that a reference was prematurely made is waived where the par- se For another form of order of reference, see Bolton v. Flournoy, R. M. Charlt. (Ga.) 125. 2T 1 Barbour, Oh. Pr. 471; Anonymous, 9 Ves. 341; Gibbons' Appeal, 104 Pa. 587. 28 Cook V. Houston County Com'rs, 62 Ga. 223. 29 .Johnson v. Swart, 11 Paige (N. Y.) 385; Dewing v. Hutton, 48 "W. Va. 576, 37 S. E. 670. (598) Ch. 32] REFERENCE TO A MASTER. § 591 ties acquiesced in tlie irregularity.^" Where an order is a null- ity, and not merely irregular, the objection thereto will not be ■waived by delay in insisting upon it. Upon a motion by a de- fendant to set aside an order of reference for irregularity, the complainant cannot be let in on terms, but an application for that purpose must be the subject of a distinct motion.^ ^ § 591. Who may attend before master. The general rule is that all parties beneficially interested either in the estate or fund in question are entitled to attend before the master on all those proceedings which may affect their interests, or increase or diminish their proportion in the fund. This includes not only those parties who were parties to the suit, but those who are qiuisi parties, by having come in under the decree and established a claim.*^ On a reference of the title to an estate purchased under a decree, it is said the master will only allow the vendor's solicitor to attend before him on the inquiry.^^ Parties entitled to the personal estate are not entitled to attend proceedings which affect the real estate alone, and vice versa.^^ Trustees are not allowed, except in proceed- ings carried on by themselves, to attend in cases where all the cestuis que trust are before the court. If there are parties in being, or who may come into being, who may become inter- ested, whose interests are only represented by the trustees, and are not too remote, the trustees will be allowed to attend the proceedings affecting those interests.*^ An executor is entitled to attend on all proceedings relating to the charges of creditors seeking payment out of the personal estate. After there has been a report of debts, if all the parties interested in the per- sonalty are before the court, he is only entitled to attend on 30 Dunn v. Dunn, 8 Ala. 784. 31 Johnston v. Bloomer, 3 Bdw. Ch. (N. Y.) 328. 32 1 Barbour, Ch. Pr. 477, 479. 33 1 Barbour, Ch. Pr. 477. 34 1 Barbour, Ch. Pr. 478. 35 1 Barbour, Ch. Pr. 478. (599) § 592 EQUITY PLEADING AND PRACTICE. [Ch. 32 those proceedings in whicli he is personally interested.^® If the master refuses to allow a party to attend before him who thinks he has a right to do so, the proper method of obtaining the opinion of the court upon the question is to present a petition praying that the party may be permitted to attend the master on the reference. A copy of this petition, with notice of pre- senting it, should be served upon all parties interested.*'^ § 592. Notice and time of hearing. Where the court, in a cause not under a default, refers it to a master for his report, the parties are entitled to be present and be heard, and if the master proceeds to take and state the account in the absence of the parties or their solicitors, without notice, exception to his report should be allowed, and the case again referred.*^ It is immaterial whether the parties had notice or not, if they were present and took part in the pro- ceedings before the master.^^ The notice must be reasonable.'*" What is reasonable notice depends upon the circumstances of the particular case.^^ Where a master reports that he gave rea- sonable notice to all of the defendants of the time and place of the hearing, it is suiEcient, in the absence of any evidence 36 1 Barbour, Ch. Pr. 478. 37 1 Barbour, Ch. Pr. 480. 38 Whiteside v. Pulliam, 25 111. 285; Ballard v. Llppman, 32 Fla. 481, 14 So. 154; Gaines v. Coney, 51 Miss. 323; Wardlaw v. Erskine, 21 S. C. 359. See supra, § 148, for rights of parties to notice when the hill has been taken for confessed. 39 Prince v. Cutler, 69 111. 267. 40 Strang v. Allen, 44 111. 428. 41 For illustrations thereof, see Taylor v. Thomas, 2 N. J. Eq. 106; Johnson v. Person, 16 N. C. 364; White v. Drew, 9 W. Va. 695; Bernie v. Vandever, 16 Ark. 616. It is held that, where the evidence already taken has established the facts, and it is the duty of the master merely to make calculations and state the result in figures, the reason and necessity for the notice does not exist. Gaines v. Coney, 51 Miss. 323; Chapman v. Evans, 44 Miss. 118. But it is also held that parties are entitled to notice of a hearing before the master, notwithstanding the reference involves only the examination of records in the case. Ward- law V. Erskine, 21 S. C. 359. (600) Ch. 32] REFERENCE TO A MASTER. i^ 593 to the contrary.*^ The time after notice to prepare for a hear- ing is, in the absence of statute or rule of court, left a matter of discretion, to he determined hy the master, and should be reasonable.*^ Where the delay in taking testimony is at the complainant's request, and the taking of testimony is pursuant to agreement, it is error to strike the master's report and testi- mony from the record on the application of the complainant, be- cause the testimony was not taken within the time fixed by the rule of court, and, if necessary, an order nunc pro tunc may be made extending the time.** § 593. Hearing before master. The master must perform the duties under an order of refer- ence in person, and he cannot delegate his authority to, nor per- form his duties by, a substitute. He should see the witnesses, and hear them testify, where he is ordered to report his conclu- sions of law and fact.*'' He must decide upon the testimony, and cannot decide upon his personal knowledge of the facts.*® Under the old English practice, a party prosecuting or resist- ing any inquiry before a master was required to present to the master a state of facts, which was in effect the pleading of the party before the master. It has been defined to be a statement in writing, made by a party prosecuting or resisting any inquiry before a master, of the facts and circumstances upon which he relies, either in support of his own cause or in contradiction or defeasance of that of his adversary. It is in effect the plead- ing of the party before the master, and is governed by nearly 42 state V. Mclntyre, 53 Me. 214. 43 Bernie v. Vandever, 16 Ark. 616. a BDoofstitler v. Hostetter, 172 Pa. 575, 33 Atl. 753. See Harding v. Harding, 180 111. 481, 54 N. E. 587. In Harding v. Harding, 180 111. 481, 54 N. B. 587, it was held to be within the discretion of the court to re- ceive and consider the master's report, although he had not conformed to the time fixed by the order. 45 Stone V. Stone, 28 N. J. Bq. 409; Schnadt v. Davis, 84 111. App. 669, 185 111. 476, 57 N. E. 652. 46 Bissell V. Bozman, 17 N. C. 229. (601) § 593 EQUITY PLEADING AND PRACTICE. [Ch. 32 the same rules and proceedings as pleadings in the court, yet not being signed, nor, in general, prepared by counsel, those rules were not so strictly observed.*^ A state of facts was a gen- eral form, by which the prosecution or defense of every refer- ence to a master was commenced. It was entitled in the cause, and contained a detail of the facts and circumstances intended to be relied upon by the party. It might be amended at any time before the examination of witnesses commenced. When prepared, it was carried into the master's office, and a return or summons on leaving was taken out and served upon the other parties. If they had a counter state of facts to leave, they pro- ceeded in the same manner.** Scandalous or impertinent mat- ter contained therein might be expunged.** A further state of facts might be carried in if necessary, upon leaving which, a warrant "on leaving" was taken out and served, as when an original state of facts was left. Where another party claimed the facts to be different from those alleged by the party carry- ing in the state of facts, the party so claiming was required to bring in a counter state of facts, which was not necessary, how- ever, where one party merely negatived the facts as alleged by the other.^" In modern practice, the procedure in the master's office is usually regulated by statute or rule of court, intended to provide a simple and expeditious procedure.^^ « 1 Barbour, Ch. Pr. 503, 504. i& 1 Barbour, Ch. Pr. 503-505. *!> Erskine v. Garthshore, 18 Ves. 114. 50 1 Barbour, Ch. Pr. 505. 51 It is said that the rules of the United States supreme court for conducting a reference before masters provide a simple and expeditious procedure, and were obviously intended to dispense with the old formal- ities incident to the settlement or making of masters' reports, and that these rules establish a procedure in themselves, and that reference to the practice of the high court of chancery in England for the formal- ities attending the settlement, or making of masters' reports, and the entering of exceptions thereto, is unnecessary. Hatch v. Indian- apolis & S. R. Co., 9 Fed. 856. For an extended summary of the pro- cedure before the master, see Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. (602) Ch. 32] REFERENCE TO A MASTER. 55 594 § 594. Scope of inquiry before master. A master cannot report as to matters charged in the bill, but not within the order of reference. ^^ His report upon a question not referred to him by the court is erroneous, and subject to exception by the party aggrieved, and the report may be referred back to the master to strike out the superfluous matter.^* A master is bound to obey the order and directions of the court. Unless special directions are given to a master, he will not be allowed to go behind the decretal order of reference and con- sider equities between the parties, and has no right to review, reject, or disregard the decision, order, or directions of the court contained in such order. ^* Evidence which changes the complexion of the case, and which, if it had been heard before the court, would probably have changed the decree, cannot be heard.''^ Thus, where a question of fraud is determined by the court, and the cause is sent to a master to find the amount due, he is not authorized to examine the issue of fraud.^^ He has no authority to go outside the bill and raise and decide ques- tions which were not presented by the pleadings, on which the parties were never heard, and report a decree entirely foreign to the whole subject of the contention before him.^^ Where a case has been referred to take and report the evidence, he should 52 Gordon v. Hobart, 2 Story, 243, Fed. Cas. No. 5,608. 53 Taylor v. Robertson, 27 Fed. 537; Henderson v. Huey, 45 Ala. 275; Howe V. Russell, 36 Me. 115. A report directly repugnant to tbe order of reference under which it purports to have been made, and deficient in those facts upon which the final action of the court could alone be based, need not be excepted to in order to set it aside. In such cases, it is the duty of the chancellor either to direct the master to review his report, in order to conform to the decree under which it is made, or to disregard it in toto, and order him to report under the original decree. Lang v. Brown, 21 Ala. 179, citing 2 Daniell, Ch. PI. & Pr. 1501; Turner v. Turner, 1 Dickens, 313, 1 Swanst. 156. siFelch V. Hooper, 4 Cliff. 489, Fed. Cas. No. 4,718; Rankin v. Rankin, 36 111. 293, 87 Am. Dec. 205; Izard v. Bodine, 9 N. J. Eq. 309; Updike V. Doyle, 7 R. I. 456. 55 Maury v. Lewis, 10 Yerg. (Tenn.) 115. 515 Gilmore v. Gilmore, 40 Me. 50. 57 Morio's Appeal, 4 Penny. (Pa.) 398. (603) § 595 EQUITY PLEADING AND PRACTICE. [Ch. 32 take all the evidence.^^ He should pass upon all the matters referred to him, to the best of his judgment, and report his con- clusions, and it is improper for him to submit a particular claim to the decision of the court without so doing.^* Where the ref- erence merely directs the master to take testimony and report, he must confine himself to the direction, and he has no au- thority to determine issues of law and fact.*" Before the mas- ter makes his report, the court will not, except in extreme cases, entertain a motion to instruct the master while discharging his duties, where such ruling can be reviewed upon exceptions to his report.*^ § 595. Evidence before the master. The general rules of evidence which govern the courts of com- mon law, as well as the court of chancery, regulate also the pro- ceedings in the master's office.*^ Where the court directs an inquiry into a fact, .before a master, it is in the nature of a new issue joined, and what would be evidence in the other case would be evidence before the master.®^ The pleadings may be used for the same purposes that they can be used before the court, viz., as an admission by the party on whose behalf they were filed. They cannot be made use of as evidence for or against any other party.** The right to use the proceedings in the cause is subject to the same rules and restrictions as gov- ern the admissions of similar evidence before the court; but if the proceeding has really the character of evidence upon the matter directed to be inquired into, by the decree, it may be received as evidence before the master, whether it was made use 68 Schumanri v. Helberg, 62 111. App. 218. 59 Burroughs v. McNeill, 22 N. C. 297. CO Jones v. Massey, 9 Rich. (S. C.) 376. SI Anonymous, 3 Atk. 524; Lull v. Clark, 20 Fed. 454; Bates Refrig- erating Co. v. Gillette, 28 Fed. 673; Welling v. La Bau, 32 Fed. 293; Rusling v. Bray, 37 N. J. Bq. 174. 62 1 Barbour, Ch. Pr. 493. 63 Smith V. Althus, 11 Ves. 564. e^Hoare v. Johnstone, 2 Keen, 553; Kemp v. Wade, 2 Keen, 686. (604) Ch. 32] REFERENCE TO A MASTER. § 595 of at the hearing or not.'^ It is a general rule that affidavits are not admissible as evidence before a master, unless the order of reference contains a direction to that effect.®® The answer of one defendant cannot be used before a master as an affidavit against another defendant.®'' It is said that depositions of wit- nesses in another cause between the same parties may be read be- fore a master, without an order to warrant it, though such an or- der is necessary to authorize the reading of such depositions be- fore the court at the hearing.®^ Under the English practice, all persons who are competent to be examined as witnesses in a cause before the hearing are competent to give evidence be- fore the master upon inquiries directed by the decree, save that, as to those witnesses who were examined in the cause, there must be an application to the court for leave to exam- ine them before their examination can be taken.®* The ad- missibility of a party as a witness depends upon the same rules and principles as the admissibility of parties to be wit- nesses before the hearing.^" Where the master erroneously refuses to receive testimony, a motion should be made to the court for an order requiring him to receive it. The mas- ter, at the request of either party, should make and deliver to such party a certificate stating briefly the facts of the case, with his reasons for rejecting the testimony, that the court may review his deeision.''^^ The attendance of witnesses before a 65 Smith V. Althus, 11 Ves. 564. s6 Rowley V. Adams, 1 Mylne & K. 545 ; Tillotson v. Hargrave, 3 Madd. 494; Morgan v. Lewis, 1 Newland, Ch. Pr. 333. 6'? Hoare v. Johnstone, 2 Keen, 553. 68 Anonymous, 3 Atk. 524. 69 1 Barbour, Ch. Pr. 497, 498; Smith. v. Althus, 11 Ves. 564; Hough V. Williams, 3 Brown Ch. 190. 70 1 Barbour, Ch. Pr. 498. 71 Schwarz v. Sears, Walk. (Mich.) 19; Ward v. Jewett, Walk. (Mich.) 45; Dickinson v. Torrey, 91 111. App. 304; Hoffman, Mast. Ch. 58, 59. See, however, Maxim-Nordenfelt Guns & Ammunition Co. v. Colt's Pat- ent Firearms Mfg. Co., 103 Fed. 39; Fayerweather v. Ritch, 89 Fed. S29. See post, § 596. (605) § 596 EQUITY PLEADING AND PRACTICE. [Ch. 32 master, upon a reference, is enforced, when necessary, by pro- cess of subpoena.'^^ § 596. Evidence and examination of witnesses before the master. The master, when directed to ascertain the facts of the case, may receive the testimony of witnesses pertinent to such facts without an order expressly directing him to that effect.'^* The examination of witnesses before a master was formerly effected either by exhibiting interrogatories or by viva voce questions addressed to the witness himself in the master's presence.''* It is only in special cases, and upon rare occasions, that the method of examination by interrogatories is resorted to.'^'* According to the English practice, a party interrogated before a master had the right to demand that the questions be propounded in writing. The rule was otherwise as to witnesses. But the party might waive this privilege, and submit to a viva voce examination.''* The witnesses should be examined under oath, and their state- ments reduced to writing.^^ The master may hear evidence viva voce, but he must reduce the same to writing, and he can- not act upon any evidence not reduced to writing.'* The depo- sition of the witness must be signed by the witness. If not signed, it is imperfect, and cannot be read at the hearing.''® But 72 1 Barbour, Ch. Pr. 500. For form of English summons, see Ben- net, Pr. Mast. OfBce, Appendix, 1; 3 Hoffman, Ch. Pr. 180. For pro- cedure before masters in the federal courts, see United States Equity Rules 77-81. 73 Goodwin v. McGehee, 15 Ala. 232. 7*1 Barbour, Ch. Pr. 501. 76 1 Barbour, Ch. Pr. 502. 76 McDougald v. Dougherty, 11 Ga. 570. For method of examination of witnesses in cases before a master, see Story v. Livingston, 13 Pet. (U. S.) 359; Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. 7TBrockman v. Aulger, 12 111. 277; 1 Barbour, Ch. Pr. 502, 503. 78 Taylor v. Cawthorne, 17 N. C. 221; Brockman v. Aulger, 12 111. 277. See McDougald v. Dougherty, 11 Ga. 570. See, for taking evidence In pencil. Prince v. Cutler, 69 111. 267. 79Flavell V. Flavell, 20 N. J. Eq. 211; Eisenmeyer v. Sauter, 77 111. 515; Copeland v. Stanton, 1 P. Wms. 414. See, however, Wallen v. Cummings, 88 111. App. 45. (606) Ch. 32] REFERENCE TO A MASTER. § 596 an objection that a deposition is unsigned cannot be first raised on appeal.*** In the examination, witnesses and counsel are to be governed by the same rules which would control them in a court of law. Counsel is not to hold a whispered conversation with a wit- ness, nor retire with him for private consultation, nor, after consultation, dictate his answer. His advice must be given un- der the eye and in the hearing of the master. The witness must be left, after being advised as to Ms rights, to give his answers in his own language, without aid in writing or otherwise from counsel.*^ An objection should always be taken on the spot to each ruling of the master which a party intends to contest.*^ It is held in Ifew Jersey and the federal courts that it is not good practice to suspend an examination before a master until the court shaU have passed upon the question of the relevancy of testimony offered.^* A master has the right, and it is his duty, to confine the testi- mony within the lines indicated by the pleadings. As a mat- ter of practice, however, it is better that he should admit testi- mony in regard to which there may be doubt, and consider its value on his final report, where, if it be admitted, it will not prejudice the case, if improper, and, if not admitted, and found to be admissible on the hearing, the taking of further proofs will be necessary.** 80 Dean v. Ford, 180 111. 309, 54 N. E. 417; Dorn v. Ross, 177 111. 225, 52 N. E. 321. 81 Stewart v. Turner, 3 Edw. Ch. (N. Y.) 458. See Rice v. Rice, 47 N. J. Eq. 559, 21 Atl. 286, 11 L. R. A. 591, for the right to require a wit- ness to remove her veil. 82 Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328, Fed. Cas. No. 14,196; Marts v. Fox, 18 Fed. 713; Taylor v. Kilgore, 33 Ala. 214. 83Rusling V. Bray, 37 N. J. Bq. 174; Welling v. La Bau, 32 Fed. 293; Bates Refrigerating Co. v. Gillette, 20 Fed. 454; Maxim-Nordenfelt Guns & Ammunition Co. v. Colt's Patent Firearms Co., 103 Fed. 39. See 1 Hoffman, Ch. Pr. 542; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 Fed. 476. See, also, supra, § 594. 81 Hann v. Barnegat & Long Branch Improvement Co. (N. J. Eq.) 2 Atl. 928; Putnam v. Ritchie, 6 Paige (N. Y.) 390. Where evidence is offered before the master, and its competency or admissibility is ob- jected to by the adverse party, the master should receive the evidence subject to the objection, so that the court can pass upon the matter (607) §597 EQUITY PLEADING AND PRACTICE. [Ch. 32 A party, during the period allowed by a rule of court for taking proofs, may take his testimony in any order he may choose.^^ A master, in his discretion, may grant a further hear- ing upon application after the hearing has been once closed.^® If a party desires to introduce further evidence in a case referred to a master, he should exercise diligence, and should apply to the master, and, if refused, should apply to the court.®'^ § 597. Draft of report. Under the English chancery practice, the master made a draft of his report, notified counsel of his findings, gave them an op- portunity to point out errors therein, and then considered and corrected such errors, if any, so pointed out.^® This principle still obtains in many states. It was also the practice in the fed- eral courts, in chancery, prior to the adoption of the equity rules of practice.** in review. Kansas Loan & Trust Co. v. Electric Railway, Ligtit & Power Co. of Sedalia, 108 Fed. 702. 85 Brown v. Brown, 22 Mich. 242. 86 Richardson v. Wright, 58 Vt. 367, 5 Atl. 287; Whiteside v. Pulliam, 25 111. 285. See Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. In some jurisdictions it is held that, after the closing of testimony taken orally, and the submission of his draft of report to the parties in order to reopen the case for further testimony before the master, a special or- der of court is necessary, and this will be granted for the taking of testimony not newly discovered, only in case of mistake or surprise. Burgess v. Wilkinson, 7 R. I. 31; Trotter v. Trotter, 5 Sim. 383. 87 Whiteside v. Pulliam, 25 111. 285. 88 Hatch V. Indianapolis & S. R. Co., 9 Fed. 856; Fidelity Ins. & Safe- Deposit Co. V. Shenandoah Iron Co., 42 Fed. 374; Story v. Livingston, 13 Pet. (U. S.) 359; Troy Iron & Nail Factory v. Corning, 6 Blatehf. 328, Fed. Cas. No. 14,196; Gaines v. City of New Orleans, 1 Woods, 104, Fed. Cas. No. 5,177; Gleaves v. Ferguson, 2 Tenn. Ch. 589; Byington V. Wood, 1 Paige (N. Y.) 145; Central Trust Co. of New York v. Rich- mond & D. R. Co., 69 Fed. 761; Trustees of Methodist Episcopal Church V. Jaaues, 3 Johns. Ch. (N. Y.) 77. 89 Fidelity Ins. & Safe-Deposit Co. v. Shenandoah Iron Co., 42 Fed. 374. For practice in circuit court of northern district of Georgia, see Central Trust Co. of New York v. Richmond & D. R. Co., 69 Fed. 761. (608) Ch. 32] REFERENCE TO A MASTER. § 599 § 598. rorm of notice of draft of report. [Title of court and cause.] To G. H., Solicitor for Complainant, and N. M., Solicitor for Defend- ant: Please take notice that I have prepared a draft of my report in the above-entitled cause, and that you can see the same at any time at my oifice, and file objections thereto, on or before Thursday, the 7th day of April, A. D. 1900, which will be the last day for filing objec- tions to the same, and that I shall hear argument on any objections filed on Saturday, April 9th, A. D. 1900, at 3 o'clock p. m., at which time and place you may appear if you see fit. Dated, Chicago, Illinois, April 1, 1900. G. B., Master in Chancery of the Circuit Court of Cook County. § 599. Frame of master's report. A master's report is a certificate by the master to the court how the facts or matters referred to him are, or do, upon ex- amination, appear to him, or of something of which it is his duty to inform the court. Masters' reports are either general or separate. General reports embrace the whole matter referred to the master by the particular decree or order, but a separate report embraces only one distinct object of the reference, and is made in cases in which it may be inconvenient to the par- ties to wait for the general report of the master.^" The ordi- nary method of framing the report, under the English practice, was to refer separately to each of the directions in the order or decree of reference, and then, with respect to each direction, first to mention on what evidence the master had proceeded, and then to state the conclusions at which he had arrived. In stat- ing his conclusion, he should so far detail the facts which war- rant it as to enable the court to judge of its correctness.®^ He is 80 2 Daniell, Ch. PL & Pr. (4th Ed.) 1294. See, also, Mott v. Harring- ton, 15 Vt. 185; Kennedy's Hteirs & Executors v. Kennedy's Heirs, 3 Ala. 434. Prior to the orders of 1828, separate reports were not per- missible under the English practice. 2 Smith, Ch. Pr. 158; Kennedy's Heirs & Executors v. Kennedy's Heirs, 3 Ala. 434. 91 Adams, Eq. 384. See O'Neill v. Perryman, 102 Ala. 522, 14 So. 898, for practice in Alabama. (609) Equity— 39 § 599 EQUITY PLEADING AND PRACTICE. [Ch. 32 not autliorized to make a report more extensive than the alle- gations and the proofs warrant, and he must not go beyond the matter referred to him, and, if he does so, his report, so far as such matter is concerned, is a nullity. The court will direct him to review his report, or pay no attention to the unauthorized findings.®^ He should only give his results, stated clearly, suc- cinctly, and intelligibly, with the proofs on which they rest, and should not give his arguments and processes of reasoning unless requested so to do by the court. ^® He should state facts, and not the evidence on which they are founded.®* He ,must not omit his conclusion, or state evidence, or circumstances which are pre- sumptive evidence, without finding whether they amount to satisfactory proof.®* ' If the conclusion which he is required to draw is a question of law, and not a mere legal presumption of a fact, he is permittted, in the exercise of a sound discretion, and without an order for that purpose, to make a special report submitting the legal question to the decision of the court. Upon such special report, he should not report the evidence, but must draw all the conclusions of fact as in a special verdict, leaving the question of law alone for the decision of the court.®® Upon a reference to state an account, his report should so state the ac- count that the court may judge whether it is correct.®^ 92 White V. Walker, 5 Fla. 478; Levert v. Redwood, 9 Port. (Ala.) 79; Jenkins v. Briant, 6 Sim. 603. 93 Evans v. Evans, 2 Cold. (Tenn.) 143; Lawrence v. Lawrence, 3 Paige (N. Y.) 267. 9i Roberts v. Barker, 63 N. H. 332; West v. Howard, 20 Conn. 581. 95 Adams, Eq. 384; Lee v. Willock, 6 Ves. 605. 96 In re Hemiup, 3 Paige (N. Y.) 305; Marlborough v. Wheat, 1 West. 9; 1 Newland, Ch. Pr. 342. 97 Nims v. Nims, 20 Fla. 204. See, also, Ransom v. Davis, 18 How. (U. S.) 295; Frazier v. Swain, 36 N. J. Eq. 156; Herrick v. Belknap, 27 Vt. 673; Jeffreys v. Yarborough, 9 N. C. 307; Reed v. Jones, 15 Wis. 40. For rules as to stating accounts, see O'Neill v. Ferryman, 102 Ala. 522, 14 So. 898; June v. Myers, 12 Fla. 310; Dumont v. Nicholson, 2 Barb. Ch. (N. Y.) 71; Maury v. Lewis, 10 Yerg. (Tenn.) 115; Blauvelt V. Ackerman, 20 N. J. Ea- 141; Hurdle v. Leath, 63 N. C. 366; Dewing V. Hutton, 40 W. Va. 521, 21 S. E. 780. He should return the decrees, orders, and notices under which he has proceeded, in order that the (610) Ch. 32] REFERENCE TO A MASTER. g 600 § 600. Form of report of testimony, and conclusions thereon. [Title of court and cause, and address to the court.] Pursuant to an order of reference heretofore entered on the • day of . 19 — , in the above-entitled cause, whereby it was re- ferred to me, as one of the masters in chancery of this court, to take the testimony and report the same, with my findings and conclusions thereon, I, therefore, the said master, do hereby certify and report as follows: That upon due notice to all the parties hereto, and in due form of law, having first given a written notice to said parties, respectively, of the time and place when and where the said testimony would be taken, and caused to come before me all such witnesses as the re- spective parties desired or made known to me, witnesses were duly sworn and testified, evidence was heard and received, and proceed- ings were had as more fully appears from the transcript of proceed- ings and evidence annexed as a part of this report, which said tran- script, together with the exhibits therein mentioned, contains all the evidence submitted before said 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: [Here set out the conclusions of fact of the master.] Upon the facts aforesaid, and from the pleadings filed in said cause, and from the law, I, the said master, would therefore recommend that [here insert such recommendations as the facts may warrant]. All of which is respectfully submitted. Dated this 1st day of April, A. D. 1900. G. B., Master in Chancery of the Circuit Court of Cook County, Illinois. Report of Evidence. State of Illinois,") Iss. County of Cook. J [Title of court and cause.] Testimony taken before G. B., one of the masters in chancery of said court, pursuant to an order of reference heretofore entered in said cause. Present, G. H., solicitor for the complainant, and N. M., solicitor for the defendant. R. S., a witness called on behalf of complainant, being first duly sworn, testified as follows: Direct Examination. Question: State your name, age, and resi- court may see that they have been "properly executed. Holt v. Holt, 37 W. Va. 305, 16 S. E. 675. (611) §601 EQUITY PLEADING AND PRACTICE. [Ch. 32 dence, etc. [Here insert the examination of the various witnesses.] Which was all the testimony offered by all parties. I, G. B., master in chancery of the circuit court of Cook county, Illi- nois, do hereby certify that each of the witnesses aforesaid, before testifying, were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth, according to law; that the testimony of each of them was, upon oral interrogatories, propounded by the solicitors for the complainant and defendant in the above-entitled cause, and reduced to writing, and, after being read over by each of them, the same was duly subscribed and sworn to by each of said witnesses, as shown by the several jurats thereto attached, and, where no such signatures and jurats appear, the signatures thereto were waived by all the parties. And I further certify that the foregoing transcript of the evidence of said witnesses, together with the exhibits hereinbefore referred to and attached, is a full, complete, and true transcript of all the pro- ceedings and evidence taken before me in said cause. Dated this 1st day of April, A. D. 1900. G. B., Master in Chancery of the Circuit Court of Cook County.ss § 601. Objections to the report. After the master has prepared the draft of his report, and notified counsel of his findings, if the same is not satisfactory to them, and they desire to secure a modification thereof, it is incumbent upon them to file with the master objections there- to.®^ The province of objections to the report of a master is to call in question the conclusions to which he may have come upon the subject referred to him.^'^'* The report is received as true where no objection is taken.^**^ Objections to a master's report, unless made on the hearing before the master, cannot 9s For another form of master's report, see Mason v. Crosby, 3 Woodb. & M. 258, Fed. Gas. No. 9,236. 99 Brockman v. Aulger, 12 111. 277; Jewell v. Rock River Paper Co., 101 111. 57; Hurd v. Goodrich, 59 111. 450; Gay Mfg. Co. v. Camp, 25 U. S. App. 134, 68 Fed. 68; Kinsella v. Cahn, 185 111. 208, 56 N. E. 1119; Lebkeuchner v. Moore, 88 111. App. 16; Springer v. Kroeschell, 161 111. 358, 43 N. B. 1084; Hoe v. Scott, 87 Fed. 220. 100 Douglas V. Merceles, 24 N. J. Bq. 25 ; Byington v. Wood, 1 Paige (N. Y.) 145; McNamara v. Home Land & Cattle Co., 105 Fed. 202; Dorn V. Farr, 79 111. App. 227. 101 Harding v. Handy, 11 Wheat. (U. S.) 103; Jewell v. Rock River Paper Co., 101 111. 57; Kinsella v. Cahn, 185 111. 208, 56 N. B. 1119. (612) Ch. 32] REFERENCE TO A MASTER. § 602 be considered, where the failure to so object was not caused by- mistake or surprise.^''* Where, owing to stirprise or accident, objections are not taken before the master, the court may allow exceptions to be filed after the coming in of the report.^"* Questions insisted upon before the master are considered as waived or abandoned if not made matter of exception, unless it appears on the face of the report that the master has com- mitted an error.^"* Where a master's report is erroneous on its face, it may be inquired into, although no objection was taken to it. Where it states the facts correctly, but is mistaken in its legal conclusions, the error may be reviewed at the hearing withoxit formal exceptions.-^"^ In such case, the objection that the adverse party is not entitled to a decree upon the facts re- ported can be made when the decree is applied for.-'^'^ § 602. Frame of objections. Objections to a master's report must show definitely the part of the report objected to.^"^ They are said to be in the nature io2Peiinell v. Lamar Ins. Co., 73 111. 303; Trustees of Methodist Epis- copal Church V. Jaques, 3 Johns. Ch. (N. Y.) 77; Lewis' Adm'r v. Lewis, Minor (Ala.) 35; Holt v. Holt, 37 W. Va. 305, 16 S. E. 675; Mitchell v. Burnham, 57 Me. 314; Thorne v. Hillilter, 12 Mich. 215; Gaines v. New Orleans, 1 Woods, 104, Fed. Cas. No. 5,177. 103 Prince v. Cutler, 69 111. 267. Objections to the report upon a ref- erence to state an account, after the draft of the report is prepared, may be taken by a party who has not previously appeared before the mas- ter, but he cannot introduce any new matter in evidence to support such objections. Byington v. Wood, 1 Paige (N. Y.) 145. 104 Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5,613. losKinsella v. Cahn, 185 111. 208, 56 N. E. 1119; Von Tobel v. Ostran- der, 158 111. 499, 42 N. E. 152; Ogle v. Adams, 12 W. Va. 213; Levert v. Redwood, 9 Port. (Ala.) 79; Windon v. Stewart, 48 W. Va. 488, 37 S. E. 603; Kester v. Lyon, 40 W. Va. 161, 20 S. B. 933. 106 Monahan v. Fitzgerald, 62 111. App. 192. It is not necessary to file objections to a report which is erroneous in point of law, or which violates the directions on which it is ordered to be stated. Such a re- port may be attacked on motion for confirmation, or appeal from the decree of confirmation. Fowler v. Payne, 52 Miss. 210; Kinsella v. Cahn, 185 111. 208, 56 N. E. 1119. 107 Scrivener's Adm'r v. Scrivener's Ex'rs, 1 Har. & J. (Md.) 743; (613) § 603 EQUITY PLEADING AND PRACTICE. [Qh. 32 of a special demurrer, and must point out the error specific- olljios Where objections are taken to certain parts of the re- port, the parts not objected to are admitted to be correct.^"® An objection to a finding as not being supported by proofs is not sufficiently specific ;^^'' nor is an objection that the findingSj and each of them, are not warranted by the evidence ;^^^ nor is an ob- jection "for other and various reasons, apparent on the face of said report.""^ Objections need not recite the evidence relied upon, but only need point out distinctly the findings and con- clusions sought to be reversed.^^^ S 603. Form of objections to master's report. ITitle of court and cause.] Objections taken by C. D., the defendant in the above-entitled cause, to the draft of general report of G. B., the master to whom this cause stands referred to take proofs, and report his findings and conclu- .sions thereon: (1) For that said master has [here state the ground of objection]. (2) For that, etc. In all of which particulars this defendant objects to the draft of Nickels v. Kane's Adm'r, 82 Va. 309; Dorn v. Farr, 79 111. App. 226; Sheffield & B. Coal, Iron & Railway Co. v. Gordon, 151 U. S. 285. 108 Myers v. James, 4 Lea (Tenn.) 370; Story v. Livingston, 13 Pet. (U. S.) 359; Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526; Lebkuech- ner v. Moore, 88 111. App. 16; Springer v. Kroeschell, 161 111. 358, 43 N. E. 1084; Hiayes v. Hammond, 162 111. 133, 44 N. E. 422; Columbus, S. & H. R. Co.'s Appeals, 109 Fed. 219 ; Sheffield & B. Coal, Iron & Rail- way Co. v. Gordon, 151 U. S. 285; Crislip v. Cain, 19 W. Va. 438. See. however, Foster v. Goddard, 1 Black (U. S.) 506. iKDKester v. Lyon, 40 W. Va. 161, 20 S. E. 933; Reitz v. Bennett, 6 W. Va. 417. iioHaller v. Clark, 21 D. C. 128. 111 Waska v. Klaisner, 43 111. App. 611. 112 Young v. Omohundro, 69 Md. 424, 16 Atl. 120. 113 Hayes v. Hammond, 162 111. 133, 44 N. E. 422; Foster v. Goddard, 1 Black (U. S.) 506. Where a master has omitted testimony from his report, under authority of an order of court improperly entered, it is not necessary to the right of the party on whose behalf the omitted testimony was taken to have the report disapproved, that his exceptions to the master's report and findings he supported by a showing of the omitted testimony. Schnadt v. Davis, 185 111. 476, 57 N. E. 652. (614) Ch. 32] REFERENCE TO A MASTER. § 606 such report, and submits that the same ought to be altered accord- ingly. C. D., Defendant. J. E., Solicitor for Defendant, C. D. 5 604. Consideration by the master of the objections filed. After the objections are filed, it is proper for the master to hear arguments upon the same, and, if he disallows them, to so state in his report, and return the objections, along with his report, to the court.^^* If he allows them, he corrects his re- port accordingly. § 605. Filing the report. After the master's report is settled, the same is filed in the court ordering the reference, and application is made to the court for the confirmation of such report.-'^® In some jurisdic- tions, where a defendant is entitled to notice of proceedings be- fore a master under an order of reference, a rule nisi to con- firm the master's report should be taken; that is, an order is entered that the report be confirmed, unless exceptions thereto are filed within a specified time.-^^* § 606. Eetuming the evidence. In the absence of any statute or rule of court, or direction in the decretal order under which he acts, the master need not report the evidence to the court, and it is necessary for the parties to apply to him for certified copies of such evidence as they may require relating to matters excepted to.^^^ Where a ii^Brockman v. Aulger, 12 111. 277; McClay v. Norris, 9 111. 370. 115 Weber v: Weitling, 18 N. J. Eq. 39. 116 Weber v. Weitling, 18 N. J. Eq. 39 ; Clark v. Willoughby, 1 Barb. Ch. (N. Y.) 68; Case v. Abeel, 1 Paige (N. Y.) 630. For practice in the federal courts, see United States Equity Rule 83; National Folding- Box & Paper Co. v. Dayton Paper Novelty Co., 91 Fed. 822; Thomson V. Wooster, 114 U. S. 104. 1" Hayes v. Hammond, 162 111. 135, 44 N. E. 422; Schnadt v. Davis, 185 111. 476, 57 N. E. 652; Donnell v. Columbian Ins. Co., 2 Sumn. 366, Fed. Cas. No. 3,987; Vaughan v. Smith, 69 Ala. 92; In re Hemiup, 3 (615) § 606 EQUITY PLEADING AND PRACTICE. [Ch. 32 case is referred to a master to examine and report as to any facts in the case, it is his duty to draw a conclusion from the evidence produced before him, and to report that conclusion only, and it is improper and irregular for him to set forth the evidence in his report without a special direction of the court.^^* But where the order of reference directs the master to report the proofs, he must return to the court the depositions of the witnesses.^^® Objection to a report that the master has sent up no evidence in support of his findings as to certain mat- ters of fact should be brought before the court by motion to refer the report back to the master on those points, or that ho send up the evidence on which his report in those respects ia based. Such an omission is not the subject of exception.^ ^^ Paige (N. Y.) 305; Mott v. Harrington, 15 Vt. 185; Clapp v. Sherman, 16 R. I. 370, 17 Atl. 130; Harding v. Handy, 11 Wheat. (V. S.) 126; Warren v. Lawson, 117 Ala. 339, 23 So. 65. lis Prince v. Cutler, 69 111. 267; In re Hemiup, 3 Paige (N. Y.) 305; Nichols V. Ela, 124 Mass. 333; Evans v. Evans, 2 Cold. (Tenn.) 143; Mott V. Harrington, 15 Vt. 185. ii9Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. It is said that how fully the testimony of a witness examined viva voce before the master should be taken in writing, and returned with the master's report, is discretionary with the court, and a matter of practice. Lovejoy v. Churchill, 29 Vt. 151; Freeland v. Wright, 154 Mass. 492, 28 N. E. 678. It is held that, where the order of reference does not direct the master to report the evidence, either party may, during the hearing before the master, move the court to require the master to report the whole testimony, or any part of it, if, in the progress of the hearing, either party considers it necessary or desirable. Parker v. Nickerson, 137 Mass. 487. The practice in Rhode Island has been for the master not to report the testimony given orally before him unless directed to do so by the decree, or requested to do so by the parties, or one or either of them. Clapp v. Sherman, 16 R. I. 370, 17 Atl. 130. A sim- ilar practice prevails in other states. Simmons v. Jacobs, 52 Me. 147; Freeland v. Wright, 154 Mass. 492, 28 N. E. 678. Where no objection is taken to testimony produced before a master, and it is not shown to the court what the testimony was, the master's report is conclusive. SchiefCelin v. Stewart, 1 Johns. Ch. (N. Y.) 620. See, also, Sheffield & B. Coal, Iron & Railway Co. v. Gordon, 151 U. S. 285. 120 Miller's Adm'x v. Miller, 26 N. J. Eq. 423; Ridifer v. O'Brien, 3 Madd. 44; Tyler v. Simmons, 6 Paige (N. Y.) 127. (616) oil. 32] REFERENCE TO A MASTER. § 607 § 607. Exceptions to the master's report. It has been heretofore seen that objections to a master's report, unless made on the hearing before the master, cannot be considered, where the failure to so object was not occasioned by mistake or surprise. A party objecting to the confirmation of a master's report is also required to file, within a time fixed by the court, exceptions, setting up his grounds of objection to such confirmation. The province of such exceptions is to call in question the conclusions to which the master may have come upon the subject referred to him. InTo exception can be taken to the report unless the objection be made before him prior to his signing his report. ■'^■^ An exception based on matters of fact not brought to the attention of the master will not be con- sidered by the court.^^^ Practically the same rules as to the form of such exceptions obtain as to objections.^^^ If excep- tions are not filed within the time allowed by the court, the re- port stands confirmed.^^* An exception brings up for examina- 121 Prince v. Cutler, 69 111. 267; Trustees of Methodist Episcopal Church V. Jaques, 3 Johns. Oh. (N. Y.) 77; Whitworth v. Lowell, 178 Mass. 43, 59 N. E. 760; Lebkuechner v. Moore, 88 111. App. 16; Springer V. Kroeschell, 161 111. 358, 43 N. E. 1084; Marble v. Thomas, 178 111. 540, 53 N. E. 354; Mahone v. Williams, 39 Ala. 202; Warren v. Law- son, 117 Ala. 339, 23 So. 65. 122 Gay Mfg. Co. v. Camp, 25 U. S. App. 376, 68 Fed. 67. The report cannot, unless excepted to, be impeached at the hearing by adult defend- ants, on grounds which may be affected by extraneous evidence. Thompson's Adm'r v. Catlett, 24 W. Va. 524. Where the order con- firming a master's report is regular, it will not afterwards be vacated so as to allow the defendant to except to the report, when he pur- posely kept back his objections at the time, and did not state them before the master, though he had full knowledge of all the facts on which the exceptions were based. Slee v. Bloom, 7 Johns. Ch. (N. Y.) 137. 123 Poling V. Huffman, 48 W. Va. 639, 37 S. E. 526; Crislip v. Cain, 19 W. Va. 438; Springer v. Kroeschell, 161 111. 358, 43 N. E. 1084. 124 Weber v. Weitling, 18 N. J. Eq. 39; 1 Barbour, Ch. Pr. 550. If ex- ceptions not filed within such time are received without objection, and acted on by the court, the default is waived. Ex parte Jordan, 94 U. S. 248. (617) § 608 EQUITY PLEADING AND PRACTICE. [Ch. 32 tion all questions of law and fact arising upon the report relative to that subject.-'^® Exceptioiis are, in general, only proper where the master has come to a wrong conclusion upon matters which were referred to him to decide. Irregularities in the proceedings before a master are not proper subjects for exceptions to his report. Exceptions waive such irregularities. The correct practice is to apply to the court to set aside the report, or refer it back to the master to be perfected.^ ^^ The fact that the report contains surplusage will not invalidate the other part of the report, or sustain an exception.^ ^'^ The proper course in such a case is to at)Dlv to the court, by motion^ to expunge the extraneous mat- ter, if either party is aggrieved by the introduction of such mat- ter into the report.-'^* § 608. Correcting exceptions. It is irregular for a party, by new exceptions to a master's amended report, to raise the same questions which have been considered and decided by the court on the exceptions to the original report.-' ^^ A party who has filed exceptions to a mas- ter's report will not be permitted to extend them after the time for filing exceptions has elapsed, except upon affidavit setting forth special grounds, as surprise or accident, which prevented him from excepting to points objected to in due time.^^'' 125 Foster v. Goddard, 1 Black (U. S.) 506. Where the merits of the case have been fully considered and disposed of, and the cause is then referred to a master for an accounting, exceptions to his report cannot set up a new defense. New Orleans v. "Warner, 180 U. S. 199, citing Yazoo & M. V. Ry. Co. v. Adams, 180 IT. S. 1; Supervisors v. Kennicott, 94 U. S. 498. 126 Miller's Adm'x v. Miller, 26 N. J. Bq. 424; Tyler v. Simmons, 6 Paige (N. Y.) 127; Schwarz v. Sears, Walk. (Mich.) 19; De Mott v. Ben- son, 4 Bdw. Ch. (N. Y.) 297; Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328, Fed. Cas. No. 14,196. 127 National Bank of Metropolis v'. Sprague, 23 N. J. Eq. 81 ; Tyler v. Simmons, 6 Paige (N. Y.) 127. 128 Tyler v. Simmons, 6 Paige (N. Y.) 127; Rufford v. Bishop, 5 Russ. 346. 129 Clark V. Willoughby, 1 Barb. Ch. (N. Y.) 68. 130 Potts V. Trotter, 17 N. C. 281. (618) Ch. 32] REFERENCE TO A MASTER. § 611 i 609 Extending time to except. Where parties are excusably prevented from filing exceptions witMn the time fixed for that purpose, they should be guilty of no unreasonable delay in applying for an extension of time. If delay having the effect to protract the litigation exists before the application is made, some reasonable excuse therefor must be shovm, as well as the excuse for the original failure, before any extension will be granted.^^^ § 610. Form of exceptions to master's report. [Title of court and c^use.] Exceptions taken by C. D., the above-named defendant, to the report of G. B., master in chancery, to whom this cause has been referred by an order heretofore made herein, on the day of , 19 — , "Which report is dated the day of , A. D. 19 — : (1) For that the said master has, etc. [Here insert the ground of exception.] (2) For that, etc. Wherefore this defendant does except to the said report of the said master, and appeal therefrom to the judgment of this court. C. D., Defendant. J. E., Solicitor for Defendant, C. D.182 § 611. Conclusiveness of master's report. It is the duty of parties who have been notified of the mas- ter's report to interpose their objections to it before the master, .and, if the master declines to modify his report, to file excep- tions to it after it has been filed in court, and it is held in Illinois, if no sufficient reason appears for failure so to do, the report will be deemed conclusive by the court of re- view.-' ^^ Such report will be taken to be correct, and will not be disturbed imtil error is shown by the party qiiestioning 131 Cook V. Houston County Com'rs, 62 Ga. 228; Stewart v. Crane, 87 ■Ga. 328, 13 S. E. 552. 132 For another form of exceptions, see Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236. 133 Jewell V. Rock River Paper Co., 101 III. 57. (619) §611 EQUITY PLEADING AND PRACTICE. [Ch. 32 the same.-'^* It is held in some jurisdictions that the findings of the master are entitled to the same weight as the verdict of a jury;^^^ but the better doctrine would seem to be that the findings of fact of the master are only presumptively correct, and will be sustained unless the evidence clearly shows that they are erroneous.-*^^® 134 National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81; Jaffrey V. Brown, 29 Fed. 476. 135 Gary v. Herrin, 62 Me. 16; Vauglian v. Smith, 69 Ala. 92; Howard V. Scott, 50 Vt. 48; Whitcomb v. Duell, 54 111. App. 650. See, also, Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 33 Fed. 803; McKinney v. Pierce, 5 Ind. 422. 138 Camden v. Stuart, 144 U. S. 104; Holmes v. Holmes, 18 N. J. Bq. 141; Girard Insurance & Trust Co. v. Cooper, 162 U. S. 527; Kimberly V. Arms, 129 U. S. 512; Handy v. Scott, 26 W. Va. 710; SMpman v. Fletcher, 91 Va. 473, 22 S. B. 458; Hartman v. Evans, 38 W. Va. 669, 18 S. E. 810; Tain tor v. Franklin Nat. Bank, 107 Fed. 825; Columbus, S. & H. R. Co.'s Appeals, 109 Fed. 177; Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670; Western Union Telegraph Co. v. American Bell Telephone Co., 105 Fed. 684; Schwartz v. Duss, 103 Fed. 561; First Nat. Bank of Albuquerque v. McClellan, 9 N. M. 636, 58 Pac. 347. See, also, Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862; Central Trust Co. v. Texas & St. L. Ry. Co., 32 Fed. 448; Gaines v. New Orleans, 1 Woods, 104, Fed. Gas. No. 5,177; Howe v. Russell, 36 Me. 115. In Illinois the master's findings are advisory merely, and are not entitled to the same weight as those of the chancellor, when he has heard the witnesses. Bruggestradt v. Lud- wig, 184 111. 24, 56 N. E. 419. The rule that a master's finding of fact is entitled to the same consideration as the verdict of a jury, and will not be set aside unless palpably wrong, does not apply where the findings are mere deductions from undisputed facts, or from uncontra- dicted or credible evidence, for in such case the master has no greater far cilities for reaching a correct conclusion than has the court in passing upon exceptions to his report. McConomy v. Reed, 152 Pa. 42, 25 Atl. 176. It is held in the federal courts that, where a cause is referred to a master to report not merely the evidence, but the facts of the case and his conclusions of law thereon, his findings are conclusive so far as they depend upon conflicting testimony, or upon the credibility of witnesses. Such findings are not absolutely conclusive if there be no evidence tending to support them. The rule is confined strictly to questions of fact, and does not include questions of law, nor, generally speaking, the interpretation and construction of the legal effect of docu- ments, and is inapplicable where, by stipulation, additional evidence is introduced before the court. United States Trust Co. v. Mercantile Trust Co., 88 Fed. 140; Davis v. Schwartz, 155 U. S. 631. See Home (620) Ch. 32] REFERENCE TO A MASTER. § 612 § 612. Proceedings by the court upon master's report. As soon as the master's report has been filed, the next step is its confirmation by the court. If there is no objection thereto by either party, it is usually confirmed, though, even though the parties do not object thereto, it is discretionary with the court, in most jurisdictions, to itself make objections to its insuffi- ciency or inaccuracy. Where exceptions are filed, there are three courses open for adoption: (1) They may be disallowed, or allowed absolutely, which has the effect of at once confirming the report, either as it stands, or with such changes as the allowance of the exceptions may make.-'^^ (2) If the facts are imperfectly stated in the report, so that no judgment can be formed as to the proper conclusion, or if the existing evidence is unsatisfactory, or it is possible that other evidence exists which, in consequence of a favorable find- ing, has not been adduced, or if the nature of the matter con- tested, or the form of the exceptions, is such that their allow- ance shows the necessity for further investigation, it may be referred back to the master to review his report, continuing, in the meantime, the reservation of further directions, and either allowing the exceptions or making no order thereon. On the reference back to review, the master may receive additional evi- dence, but, if it be accompanied by allowance of the exceptions, he can come to no conclusion inconsistent with the terms of the exceptions. If no order is made on the exceptions, his finding on review is unfettered. ^^® An error apparent upon the face Land & Cattle Co. v. McNamara, 111 Fed. 822; Kimberly v. Arms, 129 U. S. 512. See KoMsaat v. Illinois T. & S. Bank, 102 111. App. 110. 137 Adams, Eq. 386. 138 Adams, Eq. 386, 387; Magic Ruffle Co. v. Elm City Co., 14 Blatchf. 109, Fed. Cas. No. 8,950. For cases involving re-reference to tlie mas- ter, see Wooster v. Simonson, 20 Fed. 316; Bolware v. Bolware, 4 Litt. (Ky.) 256; Brokaw v. McDougall, 20 Fla. 212; Beard v. Green, 51 Miss. 856; Wall v. Stapleton, 177 111. 357, 52 N. E. 477; National Folding-Box & Paper Co. v. Dayton Paper-Novelty Co., 91 Fed. 822; Phelan v. HutcM- son, 62 N. C. 116, 93 Am. Dec. 602. Thus, where a master, not sup- (621) §613 EQUITY PLEADING AND PRACTICE. [Ch. 33 of the report in a mere matter of computation may be corrected by the court, although no exceptions have been filed.-'-^* The object of the reference is the convenience of the court to ascer- tain disputed facts, and where the evidence upon which the master acted is before the court, upon the hearing of an excep- tion to the report, it is proper for the chancellor, if the excep- tion is allowed, to settle the point without sending it bacli to the master.^*" And where but a single item is in dispute, it is the usual practice, upon the allowance of the exception, to modify the report by a decretal order, instead of sending it back to the master to be corrected.-'''^ The court may make addi- tional findings, if the same are warranted by the evidence ac- companying the report ;^*^ or where the report, though inac- posing it to have been referred to him, expresses no opinion on a ma- terial point, if either party has further evidence, and desires it, a fur- ther reference will be ordered. Dutch Church of Freehold v. Smock, 1 N. J. Ea. 148. The recommitment of a master's report for a specific purpose does not open the whole case, or permit the introduction of an entirely new defense, such as the statute of limitations. Everhart v. Everhart, 2 Kulp. (Pa.) 358. Where he neglects to execute a part of an order of reference, a motion should be made to refer the report back to the master to amend it in that respect. Stevenson v. Gregory, 1 Barb. Ch. (N. Y.) 72. In respect to such matters as a recommittal of accounts or reference back to the master, the chancellor exercises a very large discretion. Where litigants have an opportunity of present- ing their case fully, and elect to proceed on a certain theory as to their rights, which is subsequently not sustained, and then move to reopen the cause for proof upon another theory, some good showing should be presented to support such motion. Mosher v. Joyce, 6 II. S. App. 107, 51 Fed. 441; Nunn v. Nunn, 66 Ala. 35; Harrell v. Mitchell, 61 Ala. 270. Where the report is incorrect in part, it may be recommitted as to the part so incorrect, and be confirmed as to the residue. Callender v. Colegrove, 17 Conn. 1. 139 Bogert V. Furman, 10 Paige (N. Y.) 496; Hawkins v. Day, 1 Ves. Sr. 189; White's Ex'rs v. Johnson, 2 Munf. (Va.) 285. lio Taylor v. Read, 4 Paige (N. Y.) 561; Henderson v. Harness, 184 111. 520, 56 N. E. 786; Gary v. Herrin, 62 Me. 16; Johnson v. Gallegos (N. M.) 60 Pac. 71; Holt v. Taylor, 43 W. Va. 153, 27 S. E. 320; Williams V. Donaghe's Bx'r, 1 Rand. (Va.) 300. 141 Taylor v. Read, 4 Paige (N. Y.) 561. 142 Wolfe V. Bradberry, 140 111. 578, 30 N. E. 665. A new reference^ will not be granted in a matter of account, to allow the party excepting (622) Ch. 32] REFERENCE TO A MASTER. § 613 curate in some statements of fact, works no prejudice to the party excepting.^^* (3) If a suit has taken such a course that, at the time of hearing the exceptions, it is apparent that, whatever orders be made, the same decree will follow, the court may decline to adjudicate on them, and may proceed to decree on further di- rections as if no exceptions had been filed.^** The right and power of the court to permit the master, on his own applica- tion, to withdraw his report for amendment, is recognized in some jurisdictions.-'*^ § 613. Hearing upon exceptions. On taking exceptions to a master's report, the party except- ing is not bound to set down the exceptions to be argued. Either party may set them down.^*® A party cannot bring on the hearing of exceptions to the master's report on the merits at to have the account examined by a professional accountant, because he believes that a more thorough and careful examination may show a mis- take in the report. Van Ness v. Van Ness, 32 N. J. Eq. 669. Where an erroneous amount, reported to be due, can be corrected from the facts that appear in the case, aside from the evidence taken before the mas- ter, it should be done and a re-reference is unnecessary. Witters v. Sowles, 43 Fed. 405; Kelsey v. Hobby, 16 Pet. (U. S.) 269. Errors of computation by the master may be corrected by the court at any time before confirmation, without recommitment. Howe v. Russell, 36 Me. 115; Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236. A re- reference is not necessary where all the facts are before the court and justice between the parties can be done. Haworth v. Huling, 87 111. 23; Moore's Bx'r v. Beauchamp, 4 B. Mon. (Ky.) 71; Gaines v. Brockerhoft, 136 Pa. 175, 19 Atl. 958; Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244. 1*3 Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236; McElroy V. Swope, 47 Fed. 380; Taylor v. Robertson, 27 Fed. 537. See, however. Ward V. Ward, 21 W. Va. 262; Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526. 144 Adams, Eq. 386. 145 National Folding-Box & Paper Co. v. Dayton Paper-Novelty Co., 91 Fed. 822; Heywood v. Miner, 102 Mass. 466; Webber v. Orne, 15 Gray (Mass.) 351; Gardner v. Field, 5 Gray (Mass.) 600. 146 Stafford v. Rogers, Hopk. Ch. (N. Y.) 98; Union Sugar Refinery V. Mathiesson, 3 Cliff. 146, Fed. Cas. No. 14,398; Morris v. Taylor, 23 N. J. Eq. 131. (623) §613 EQUITY PLEADING AND PRACTICE. [Ch. 32 the same time when he applies to set aside the report for irregu- larity, or to refer it back to the master to take testimony and review his report/*''' When alleged errors in conclusions of fact are brought to the attention of the court by exceptions, the court examines the evidence, if returned by the master, and reviews his conclusions. -"^^^ The court is not required, to search for evi- dence to sustain exceptions to a report, but may, by proper rule, require the evidence to be abstracted, or otherwise presented, in convenient form, and only evidence relating to the exceptions need be heard.^*® The report cannot be excepted to in matter of fact unless all the evidence is reported on which the conclusion is based.^^" It is held in some jurisdictions that, on the hearing of exceptions, it is not competent for the court to hear any evi- dence that was not before the master when he made his report. ■'^■'■ The argument is confined to the exceptions taken, and does not reopen matters fully discussed and determined by the court before the reference.-^^^ The question whether there should have been a reference is not open.^^^ The exceptions will be overruled, notwithstanding errors committed, if, upon the entire report, it appears that such errors were immaterial.^^* On con- sidering the exceptions, the court either sustains or overrules them, and an order to that effect is usually entered. It is held that a decree on the points covered by the exceptions, or adopt- ing them, is in effect sustaining or disallowing the exceptions, and the omission to make a formal order sustaining them is 1*7 Tyler v. Simmons, 6 Paige (N. Y.) 127. 1-18 Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458; Jackson- v. Jackson, 3 N. J. Eq. 96; Jaques v. Methodist Episcopal Church, 2 Johns. Ch. (N. Y.) 543; Boyd v. Gunnison, 14 W. Va. 1. "9 Hayes v. Hammond, 162 111. 133, 44 N. E. 422. 150 Nichols V. Ela, 124 Mass. 333. 151 Prince v. Cutler, 69 111. 267; Bruggestradt v. Ludwig, 184 111. 24, 56 N. E. 419. 152 pingree v. Coffin, 12 Gray (Mass.) 288. See Frith v. Lawrence, 1 Paige (N. Y.) 435. 153 National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81. 154 Gottfried v. Crescent Brewing Co., 22 Fed. 433. (624) Ch. 32j REFERENCE TO A MASTER. § 614 not error.^^^ It is said that, where a general exception is filed, if the master is right in any one particular, the exception must be overruled.^ "^^ § 614. Forin of order confirming master's report. [Title of court and cause.] This cause coming on this day to be heard on the report of G. B., one of the masters in chancery of this court, to whom the above-en- titled cause was referred to [here state substance of the order of ref- erence], which said report was filed in this court on the first day of April, A. D. 1900, 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. E., 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 confirmation of the said report, and having considered the same, and being fully advised in the prem- ises. 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 in chancery aforesaid be and the same is in all things approved and confirmed. 155 Portoues v. Holmes, 33 111. App. 312; Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123; Anderson v. Henderson, 124 111. 164, 16 N. E. 232. 156 Enright v. Amsden, 70 Vt. 183, 40 Atl. 37, citing Green v. Weaver, 1 Sim. 409; Pearson v. Knapp, 1 Mylne & K. 312; Candler v. Pettit, 1 Paige (N. Y.) 427; Franklin v. Keeler, 4 Paige (N. Y.) 382. If various exceptions are taken to an answer and allowed by the master, a single exception to the report, insisting upon the sufiiciency of the answer generally, cannot be sustained, if any of the exceptions to the answer are well taken. Candler v. Pettit, 1 Paige (N. Y.) 427; Hodges v. Salo- mons, 1 Cox, 249. (625) Equity — 40 CHAPTER XXXIII. FEIGNED ISSUES. § 615. In general. A feigned issue is a mode of procedure adopted from the civil law by courts of law as well as courts of equity as a means of having some question of fact, arising incidentally, and to be made the foundation of some order or decree, determined by the verdict of a jury. It is called a feigned issue for the reason that its object is not the establishment of a legal right on which a judgment shall regularly follow, but the ascertainment by a formal trial of some fact arising in another cause, and material to the decision of the latter. For convenience of trial, the issue under the English chancery practice was given in the form of a common-law action, with appropriate pleadings of an issue thereon.-' An issue was directed where an incidental question of fact was so involved in doubt by conflicting or insufficient evi- dence that the court, considering the inefiicacy of written testi- mony, was desirous of referring it to the verdict of a jury. It coxild, however, only be adopted where the evidence created a doubt, and not as a substitute for omitted evidence, and there- fore the party claiming the issue was required to first prove his case by regular depositions.- Statutory provisions are found in most jurisdictions authorizing an issue out of chancery to determine the disputed question of fact, and greatly simplify- ing the ancient English practice. 1 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 270; Barth v. Rosenfeld, 36 Md. 604. ^ Adams, Eq. 376; Moons v. De Bernales, 1 Russ. 301; Chase v. Wi- nans, 59 Md. 475; Whitaker v. Newman, 2 Hare, 300. (626) Ch. 33] FEIGNED ISSUES. § 617 S 616. Distinction between directing action at law and feigned issue. The distinction between a feigned issue and a stay of pro- ceedings in an equity suit, with leave to a party to bring a suit at law, or directing an action, is well settled. If the cause is al- lowed to stand over with leave to bring an action, or directing an action at law, the action is prosecuted in compliance with the practice and proceedings in ordinary actions at law. Bills of exceptions may be taken at the trial, and the proceedings are reviewable in the usual manner, and judgment at law will be entered which will be accepted in the equity court as a finality.* But where an issue is sent out of chancery, the whole proceed- ing is under the control of the chancellor. !N^o bill of excep- tions can be taken and no judgment entered. The conduct and result of the trial are subject to review only in the court of chancery.* Whether an order is for. an action at law or an issue out of chancery does not depend upon the form in which the issue is framed. The order of the chancellor directing the issue determines whether the issue is an issue out of chancery or an ordinary action at law.® S 617. Granting an issue discretionary with the court. As a general rule, whether or not the court will direct a feigned issue, or an "issue out of chancery," as it is termed in many jurisdictions, is discretionary with the court, and the at- tendant expense and delay will only be incurred when, upon the exercise of a sound discretion, it is deemed necessary.® Under 3 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269; Bootle v. Blundell, 19 Ves. 494b, 509; Hope v. Hope, 10 Beav. 581; Smith v. Effingham, 10 Beav. 378; Apthorp v. Comstock, 2 Paige (N. Y.) 482. 4 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269; Johnson v. Harmon, 94 U. S. 371; Clayton v. Nugent, 1 Colly. 363, 13 Law J. Exch. 363; Ex parte Story, 12 Pet. (U. S.) 343; Armstrong v. Armstrong, 3 Mylne & K. 52. 5 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269. • Adams, Eq. 377; Baker v. Safe-Deposit & Trust Co., 93 Md. 368, 49 (627) § 617 EQUITY PLEADING AND PRACTICE. [Ch. 33 tlie English chancery practice, except in the case of an heir at law, and of a rector or vicar, and in suits to establish a will or a modus, the right to have a feigned issue was largely a matter where the granting of the issue was discretionary with the court.'' Much discussion has arisen in the federal courts, and in many of the states of the Union, where the right of trial by jury is secured to suitors by constitutional or statutory provi- sions, concerning the right of a court of equity to grant an issue in a case.® The general rule is that, where an issue is Atl. 623; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 148; Trimmier v. Liles, 58 S. 0. 284, 36 S. E. 652; Stannard v. Graves, 2 Call (Va.) 369; Chase v. Winans, 59 Md. 475. The practice of granting issues is lim- ited to cases in which the court, in a fair exercise of its discretion, con- siders that justice will best be obtained by that course, — by discretion, is meant, as it is best guided by what has been the practice of courts of chancery. Patterson v. Gaines, 6 How. (U. S.) 550, 584, citing Gard- ner V. Gardner, 22 Wend. (N. Y.) 526. 7 Adams, Eq. 377; 1 Hoffman, Ch. Pr. 502; Pemberton v. Pemberton, 11 Ves. 53. See Field v. Holland, 6 Cranch (U. S.) 8; Hilleary v. Crow, 1 Har. & J. (Md.) 542; Chase v. Winans, 59 Md. 475. It is said that the exception as to an heir at law does not obtain in Maryland. Chase v. Winans, 59 Md. 475. 8 Adams, Bq. 376, note. By statute in some states in certain cases the parties have been given the absolute right to a trial by jury. Rev, St. 111. c. 22, § 40. The statutes and decisions of the particular juris- diction should always be consulted in order to determine whether or not any specific right to a trial by jury in special cases has been con- ferred, and to determine what is the construction of the constitutional provision conferring the right to a trial by jury. The chief difllculty lies in determining what cases were and were not tried by a jury prior to the adoption of the constitution. See, for trial by jury in courts of equity, 3 Greenleaf, Ev. §§ 260-266. The following cases will illustrate the practice in various jurisdictions: United States v. Samperyac, Hempst. 118, Fed. Cas. No. 16,216a; Wilson v. Riddle, 123 U. S. 608; Anonymous, 35 Ala. 226; Ringgold v. Patterson, 15 Ark. 209; Reybold V. Jefferson, 1 Har. (Del.) 401, 26 Am. Dec. 401; Phillips v. Edsall, 127 111. 535, 20 N. E. 801; Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. Rep. 254; Hilleary v. Crow, 1 Har. & J. (Md.) 542; Dole v. Wooldredge, 142 Mass. 161, 7 N. E. 832; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. (Mass.) 344; Carradine v. Carradine's Estate, 58 Miss. 286; Marston v. Brackett, 9 N. H. 336; Tibbetts v. Perkins, 20 N. H. 275; Pearson v. Northern R. Co., 63 N. H. 534, 4 Atl. 388; Tren- (628) Ch. 33] FEIGNED ISSUES. § 618 properly in equity, a party is not entitled as of right to have an issue submitted to a jury.® § 618. When an issue should be awarded. If the court is not satisfied upon the proofs which have been taken as to the truth of the case, it may direct a feigned issue to ascertain the facts. As a general rule, it has, however, the power of determining all questions of fact without resorting to this mode of inquiry, and it should not be employed except where the conflict of witnesses or the obscurity of evidence is such as to make it doubtful on which side the preponderance of evidence lies.-^" An issue has been ordered in applying the general princi- ple of the court in the following cases : Whether a certain bond was intended as an indemnity for services or a gift;^^ to try the question of forgery of an instrument where one witness has sworn to its genuineness;-'^ to try whether a son survived his father, where both perished at sea with all on board the ves- ton Banking Co. v. Woodruff, 2 N. J. Eq. 117; Carpenter v. Easton & A. R. Co., 26 N. J. Eq. 168; Hess v. Calender, 120 Pa. 138; Greenville V. Ormand, 44 S. C. 119, 21 S. E. 642; Allen v. Saulpaw, 6 Lea (Tenn.) 477; Cooper v. Stockard, 16 Lea (Tenn.) 140; Rowton v. Rowton, 1 Hen. & M. (Va.) 92; Beverley v. Walden, 20 Grat. (Va.) 147; Jarrett V. Jarrett, 11 W. Va. 585; Amnions v. South Penn Oil Co., 47 W. Va. 610, 35 S. E. 1004; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216. 9 Shapira v. D'Arcy (Mass.) 62 N. E. 412, citing many cases; Smith V. Groom, 7 Fla. 180; Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583; Harding v. Fuller, 141 111. 308, 30 N. E. 1053. See, for discussion of right of trial by jury, Keith v. Henkleman, 173 111. 137, 50 N. E. 692; Spies v. Illinois, 123 U. S. 181; Iowa Cent. Ry. Co. V. Iowa, 160 U. S. 389; Parker v. Simpson (Mass.) 62 N. B. 401. 10 1 Hoffman, Ch. Pr. 502; Bree v. Beck, 1 Younge, 243; Townsend V. Graves, 3 Paige (N. Y.) 453; Kennedy's Heir & Executors v. Ken- nedy's Heirs, 2 Ala. 571; Fisler v. Porch, 10 N. J. Eq. 243; Noel v. White, 37 Pa. 514; Williams v. Blakey, 76 Va. 254; Bassett v. Johnson, 3 N. J. Eq. 417; Earle v. McCartney, 109 Fed. 13; Trenton Banking Co. V. Woodruff, 2 N. J. Eq. 118; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Hord's Adm'r v. Colbert, 28 Grat. (Va.) 49; Wise v. Lamb, 9 Grat. (Va.) 294. iiWinchelsea v. Garretty, 1 Tarn. 68. 12 Peake v. Highfield, 1 Russ. 559. (629) § 619 EQUITY PLEADING AND PRACTICE. [Ch. 33 sel ;^^ to determine the question of partnership ;^* to determine the question of sanity ;^'' upon a hill for specific performance, when the uncertainty as to the title depended upon matter of fact.^^ The practice of submitting the entire case to a jury is discouraged, even though the parties desire such a trial.^'^ A feigned issue should not be granted to try a question of law.-'^ § 619. When issue should be applied for. The usual time for applying for a feigned issue is at the hearing, but there have been cases in which it has been ordered upon a previous motion.^ ^ It may also be granted upon excep- tions to a master's report, where the court has great doubts.^* The court may direct an issue to be tried without expressly re- voking a previous order of reference.^ ^ The court may, of. its own motion, direct an issue. ^^ 13 Mason v. Mason, 1 Mer. 308. 1* Drope V. Miller, Hempst. 49, Fed. Gas. No. 4,092a. isWliitlock v. Smith, 13 Fla. 385; Brown v. Miner, 128 111. 148, 21 N. B. 223; Howard v. Howard, 87 Ky. 616, 9 S. W. 411. 16- Seymour v. De Lancey, Hopk. Ch. (N. Y.) 436, 14 Am. Dec. 552; Fox V. Ford, 5 Rich. Bq. (S. C.) 349; Jones v. Jones, 3 Mer. 161. 17 Milk V. Moore, 39 111. 584. 18 Crosier v. McLaughlin, 1 Nev. 348; "Wolf v. Bollinger, 62 111. 368; Thompson's Appeal, 36 Pa. 418; Landis v. Lyon, 71 Pa. 473. 19 1 Hoffman, Ch. Pr. 503; Fullager v. Clark, 18 Ves. 481. The issue should be applied for at an early stage of the proceedings, and the na- ture of the issue desired should be specified. In re Moyer's Estate, 1 Pears. (Pa.) 407; In re Mealey, 11 Phila. (Pa.) 161; Duncan v. King, 1 Overt. (Tenn.) 79; Bourke v. Callanan, 160 Mass. 195, 35 N. B. 460. For cases involving the time when the application for an issue should be made, see City of Belleville v. Citizens' Horse Ry. Co., 152 111. 171, 38 N. E. 584, 26 L. R. A. 681; Tibbetts v. Perkins, 20 N. H. 275; New Or- leans Gas Light & Banking Co. v. Dudley, 8 Paige (N. Y.) 452; Holtt V. Burleigh, 18 N. H. 389; Homer v. Harris' Bx'r, 10 Bush (Ky.) 360; Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 7 Pick. (Mass.) 369. 20 1 Hoffman, Ch. Pr. 503; Kemp v. Mackrell, 2 Ves. Sr. 579.. 21 Field V. Holland, 6 Cranch (U. S.) 8. 22 Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Black v. Lamb, 12 N. J. Eq. 108; Ringgold v. Patterson, 15 Ark. 209; Black v. Shreve, 13 N. J. Eq. 455; Hoitt v. Burleigh, 18 N. H. 390. (630) Ch. 33J FEIGNED ISSUES. § 620 § 620. Framing issues. Issues out of chancery sliould be made up from the pleadings in the cause.^* The form of an issue was formerly that of an action at law on a wager assumed to have been made respecting a fact in dispute; but this fiction has been dispensed with in most jurisdictions, and the question may be referred to the jury in a direct form.^* As a general rule, the court may di- rect, not only what shall be tried, but the form of the issue, and who shall be the parties.^® The issue may be submitted in plead- ings raising the issue, ^^ but, under the modern practice, the issue usually consists of a series of specific questions,^ ^ which should not be indefinite and indecisive, but specific and distinct. ^^ If the parties differ as to the form of the issue, it may be referred to the master, to be settled by him.^^ Objections to the form of an issue are properly made at the time such order is granted, and, in any event, before trial.^° Such objections should be made in the court from which they are sent.^^ 23 Horner v. Harris' Ex'r, 10 Bush (Ky.) 360; Morgan v. Fuller, L. R. 2 Eq. 296; Morrell v. Morrell, 3 Barb. (N. Y.) 236; Burr v. Burr, 2 Edw. Ch. (N. Y.) 448. But see Crabb v. Larkin, 9 Bush (Ky.) 164. 2* Adams, Bq. 376. See Milk v. Moore, 39 111. 588; Dorr v. Tremont Nat. Bank, 128 Mass. 349; Decker v. Caskey, 1 N. J. Eq. 427; James V. Brooks, 6 Heisk. (Tenn.) 150. 25Ringwalt V. Ahl, 36 Pa. 336; Lake v. Hardee, 55 Ga. 667, where various issues and the verdict of the jury thereon are set forth. 26 Dorr V. Tremont Nat. Bank, 128 Mass. 357; James v. Brooks, 6 Heisk. (Tenn.) 150. 27 Black V. Lamb, 12 N. J. Bq. 108; Cooper v. Stockard, 16 Lea (Tenn.) 144. See Miller v. Cobb, 64 Hun, 637, 19 N. Y. Supp. 442; Rofise v. Bowers, 108 N. C. 182, 12 S. E. 985; Fanning v. Russell, b4 111. 386; Dorr V. Tremont Nat. Bank, 128 Mass. 357. 28 Greene v. Harris, 11 R. I. 5; Ayers v. Scott, Sneed (Ky.) 162; Barth v. Rosenfeld, 36 Md. 604; Milk v. Moore, 39 111. 588; Dunn v. Dunn, 11 Mich. 284. 29 1 Hoffman, Ch. Pr. 505. 30 Black V. Lamb, 12 N. J. Eq. 108; Hoobler v. Hoobler, 128 111. 645, 21 N. E. 571; Bassett v. Johnson, 2 N. J. Eq. 154. 31 Bell V. Woodward, 47 N. H. 539; Black v. Lamb, 12 N. J. Eq. 108. (631) § 622 EQUITY PLEADING AND PRACTICE. Ch. 33 § 621. Form of order for a feigned issue. [Title of court and causej This cause coming on to be heard with the exceptions to the master's report, and upon the equity reserved, and the same being argued by John V. Henry, on the part of the complainant, and by S. H. Hopkins and T. H. Dyckman on the part of the defendants, and due delib- eration being thereupon had. It is ordered that a feigned issue be made, to try by a jury of the country whether the complainant is or is not seised of an absolute estate of inheritance in the lands in the town of Newburgh, in the county of Orange, which, by the articles of agreement set forth in the complainant's bill of complaint, and proved in the said cause, the said complainant had agreed to convey to Thomas Ellison, deceased, in his lifetime, and to which the said complainant claims to derive his title through James Hlallett. And it is further ordered that the said issue be tried before a jury of the city and county of New York, at a circuit court to be held in and for the said county; that the complainant shall make up and carry down the said issue, and that the same shall be brought to trial upon the usual notice. And it is further ordered that office copies of the pleadings and ex- hibits proved in the said cause, and of the evidence taken therein, so far as the same relates to the question of title, may be read upon the trial of the said issue, subject to all legal objections; that either party shall be at liberty to introduce any further evidence upon the trial of the said issue; that either party may re-examine his own witnesses, and subpoena the witnesses who have been examined by the adverse party for the purpose of cross-examining them; and that all further direction be reserved until the coming in of the record and postea. L. M., Judge.32 § 622. Form of order for settling an issue. [Title of court and cause.] An application being now made, on behalf of the complainant, for an issue to try the facts in dispute in this cause by a jury, and the cause being in readiness for the taking of proofs against all the defend- ants, thereupon, on hearing Mr. , of counsel for the complainant, and Mr. r, of counsel for the defendants. It is ordered that issues be awarded to try by a jury the matters in controversy in this cause; that such issues be in the form of the following interrogatories, to-wit: 32 3 Hoffman, Ch. Pr. cxlvi. (632) Ch. 33] FEIGNED ISSUES. § 623 First. Was a valuable consideration paid by the defendant, J. M., to S. R., named in the pleadings, for the lot of land conveyed to him by deed, dated the day of , and what was such considera- tion? Second, etc. And it is further ordered that the defendant, J. M., is to be consid- ered as holding the affirmative of such first issue, and the complainant the negative, etc. L. M., Judge.33 i 623. Porm of feigned issue. Be it remembered, that on the Monday of , in this same term, before the justices of the supreme court of judicature of the state of New York, at the , in the city of . comes John Den, by B. R., his attorney, and brings into the said court, now here, his certain bill against Richard Fen, in custody, etc., of a plea of trespass on the case, which said bill follows in these words, to-wit: John Den complains of Richard Fen, being in custody, etc., of a plea of trespass on the case, for that whereas, on the 4th day of March, A. D. 1826, at the city of New York, and in the county of New York, a discourse was had and moved by and between the said John Den, of the one part, and the said Richard Fen, of the other part, of and concerning the title of one W. S. to certain lands in the town of New- burgh, in the county of Orange, which, by certain articles of agree- ment set forth in a certain bill of complaint, filed in the court of chan- cery of the state of New York by the said W. S. against the repre- sentatives of T. B., deceased, and proved in the said cause, the said W. S. had agreed to convey to the said T. E. in his lifetime, and to which the said W. S. claimed to derive title through one J. H., and whether the said W. S. was or was not seised of an absolute estate of inheritance in the said lands, and whether a certain paper writing produced by the said complainant before M. H., Esq., one of the mas- ters of said court, upon the reference to him in the above cause, pur- porting to be a deed from H. B. S. to L. S., and to bear date the 16th day of March, 1786, was executed by the said H. E. S. And upon such discourse the said John Den then and there asserted and affirmed that the said paper writing so produced before M. H., Esq., one of the mas- ters of said court, upon the reference to him in the said cause, pur- porting to be a deed from H. E. S. to L. S., and to bear date the 16th day of March, 1786, was executed by the said H. E. S.; which said assertion the said Richard Fen then and there denied to be true, and then and there affirmed the contrary thereof. And thereupon. 33 The foregoing form is taken from 3 Hoffman, Ch. Pr. 401. (633) § 623 EQUITY PLEADING AND PRACTICE. [Ch. 33 afterwards, to-wit, on the same day and year, and at the place afore- said, in consideration that the said John Den, at the special instance and request of the said Richard Fen, had then and there paid to the said Richard Fen the sum of one hundred dollars lawful money of the United States, he, the said Richard Fen, undertook, and then and there promised the said John Den, to pay him the sum of two hundred dol- lars, of like lawful money. In case the said paper writing was ex- ecuted hy the said H. B. S., as he, the said John Den, had asserted and affirmed, as aforesaid. And the said John Den, in fact, saith that the said paper writing was executed by the said H. E. S., as he, the said John Den, had asserted and affirmed, to-wit, on the same day and year, and at the place aforesaid, of which the said Richard Fen after- wards, to-wit, on the same day and year, and at the place aforesaid, had notice. By reason whereof the said Richard Fen became liable to pay to the said John Den the said sum of two hundred dollars, law- ful money aforesaid, to-wit, on the same day and year, and at the place aforesaid, and, being so liable, he, the said Richard Fen, in con- sideration thereof, afterwards, to-wit, on the same day and year, and at the place aforesaid, undertook and promised the said John Den to pay him the said sum of money when he, the said Richard Fen, should be thereunto afterwards requested. Nevertheless, etc. Plea: And the said defendant, by W. N. D., his attorney, comes and defends the wrong and injury when, etc., and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that true It is that such several dis- courses were had and moved, and that such several questions arose and were debated between the said plaintiff and the said defendant, and that the said defendant did undertake and promise, in manner and form as the said plaintiff hath above in his said declaration alleged; but the said defendant further says, as to the sum of two hundred dol- lars in the said first count of the said declaration mentioned, the said paper writing in the said declaration mentioned was not executed by H. E. S., in the said declaration mentioned, as the said plaintiff hath in the said declaration above alleged, and of this the said defendant puts himself upon the country, and the said plaintiff doth the like, etc. Therefore the issue above joined is ordered to be tried at the cir- cuit court appointed to be held in and for the , in and for the county of aforesaid, on the Monday of next.3< 34 The foregoing form is taken from 3 Hoffman, Ch. Pr. cliii. In Fanning v. Russell, 94 111. 388, the following questions were submit- ted to the jury: (1) Were the foregoing deeds of conveyance made without any valuable consideration? If with such consideration, what and how much, with reference to each deed? (2) Did S. F., at the date of making such conveyances, own other sufficient property to pay (634) Ch. 33] FEIGNED ISSUES. § 626 § 624. Bevoking issue. The court may revoke the issue at any time.^** It may pro- ceed to final decree without trying the issue or setting aside the order.'® § 625. In what court issue tried. By the English practice, the complainant might select the court in which the issue should be tried, and, if there was any special reason for trying it in another court, an application should be made for the purpose.'^ In most of the jurisdictions in America, when the common-law and equity jurisdiction is vested in different tribunals, the feigned issue is sent to the court of law for trial, and, when the common-law jutge and chancellor are the same person, the issue is sent to the com- mon-law side of the docket.^* This question is now largely regulated by statute.*® § 626. Proceedings upon trial. After the issue is settled by the court or master, or agreed his indebtedness then existing? In Wilson v. Riddle, 123 U. S. 608, are set forth the following issues and findings by the jury: "To the first issue of fact submitted by the court, to-wit, 'Is the deed of trust presented a true, valid, and authentic instrument executed at the time it purports to be?' we, the jury, find that the deed of trust presented is a true, valid, and authentic instrument executed at the time it pur- ports to be. To the second issue of fact submitted by the court, to- wit, 'Did the defendant, B. J. Wilson, have notice of the existence of this trust deed at or before the execution of the mortgage by plaintiff to defendant. May 5, 1870, or before the sheriff's sale in 1876?' we, the jury, find that the defendant, B. J. Wilson, had notice of the existence of this trust deed at or before the execution of the mortgage by plain- tiff to defendant. May 5, 1870, and before the sheriff's sale in 1876." 35 Cook's Heirs v. Bay, 4 How. (Miss.) 485; Church v. Ruland, 64 Pa. 432; Dabbs v. Dabbs, 27 Ala. 646; Anderson v. Cranmer, 11 W. Va. 562; Field v. p:olland, 6 Cranch (U. S.) 22. 38 Field V. Holland, 6 Cranch (U. S.) 8. 3Tl Hoffman, Ch. Pr. 504; Ex parte Malkin, 2 Rose, 27; Antrobus v. East India Co., 5 Madd. 3. See Fernie v. Young, L. R. 1 H. L. 63. 38 Milk V. Moore, 39 111. 587; Fisher v. Carroll, 46 N. C. 27. 39 Milk V. Moore, 39 111. 587. (635) § 626 EQUITY PLEADING AND PRACTICE. [Ch. 33 upon, the subsequent proceedings are regulated by the practice of the court in which it is to be tried, subject, however, to the control of the court of chancery over the parties as to mode and terms of trying such issue.*" The trial court cannot grant a nonsuit.*^ It is competent and usual for the court directing the issue to order the terms on which the trial of the issue shall proceed, and what evidence the parties shall respectively admit or adduce.*^ Thus, in directing an issue, the court may order the parties to make such admissions as it thinks are necessary to raise the question to be determined ; that they produce at the trial any books, papers, and documents in their possession, pow- er, or control which it may deem useful for a full investigation of the matter in issue ; that witnesses, having testified, may be examined viva voce, or their depositions read at the hearing; that new witnesses shall not be adduced without sufficient previ- ous notice to enable the other party to ascertain their character. The court may also designate which party shall hold the affirm- ative, and may impose such restrictions upon the parties as will prevent all fraud or surprise.*^ Upon the trial of an issue out 40 1 Hoffman, Ch. Pr. 511; Rin&walt v. Ahl, 36 Pa. 336; Black v. Lamb, 12 N. J. Eq. 108; Black v. Schreve, 13 N. J. Eq. 455; American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269. See, for directions by the court as to manner of proceeding, Beau- fort V. Morris, 2 Phillips, 603; Chapman v. Smith, 2 Ves. Sr. 506; Cart V. Hodgkin, 3 Swanst. 161; Fisher v. Carroll, 46 N. C. 27; Yingling V. Hesson, 16 Md. 112. *i Woolfolk V. Graniteville Mfg. Co., 22 S. C. 332. *2 3 Greenleaf, Ev. § 337. For action of trial court concerning evi- dence on issues out of chancery, see Brown v. Clifford, 7 Lans. (N. y.) 46; Black v. Shreve, 13 N. J. Eq. 455; Black v. Lamb, 12 N. J. Eq. 108; Hunter v. Wallace, 1 Overt. (Tenn.) 239; Jervis v. White, 8 Ves. 313. But see Beachinall v. Beachinall, 1 Vern. 246; Blderton v. Lack, 2 Phillips, 680. 43 3 Greenleaf, Ev. § 337; Apthorp v. Comstook, 2 Paige (N. Y.) 482. There has been some conflict of opinion upon the right of the court to order the parties themselves to be examined without their consent. It was held that this might be done where the parties were merely nominal or fiduciary, or where the facts in dispute rested only in the knowledge of the parties, or where oath was so balanced by oath that it was proper for a jury to weigh their credit. In such cases they were (636) Ch. 33] FEIGNED ISSUES. § 626 of chancery, the bill is not proof of its allegations except so far as its allegations are admitted to be true by the answer, and the answer is not proof of the allegations therein contained un- less the allegations in the answer as to facts be positive and re- not considered, as witnesses for themselves or , for each other, but as witnesses for the court, to satisfy its own conscience. 3 Greenleaf, Ev. § 338; De Tastet v. Bordenave, 1 Jac. 516. In other cases, such exam- inations have been refused, unless by mutual consent, and subject to the discretion of the court. 3 Greenleaf, Bv. § 338; Howard v. Braith- waite, 1 Ves. & B. 374; Gardiner v. Rowe, 4 Madd. 236; Hepworth v. Heslop, 6 Hare, 622. Even then it has been observed that me prac- tice of allowing parties to be examined for themselves is to be re- sorted to with great caution, and never unless, under the peculiar cir- cumstances of the case, justice cannot be attained without it, and cer- tainly never when, from the position of the parties, an unfair ad- vantage would be given by it to one over the other. 3 Greenleaf, Bv. § 338. See Parker v. Morrell, 2 Phillips, 453; Rogerson v. Whittington, 1 Swanst. 39. The order for the examination of a party does not af- fect the character or weight of his evidence. It only removes the ob- jection which arises from his being a party in the cause. 3 Greenleaf, Ev. § 338. In Barth v. Rosenfeld, 36 Md. 611, the following issues were submitted to the jury: "(1) Were the said moneys, which have been so brought into court by the complainant, the moneys of F. M., or of S. B., on the 23d of February, 1870, at the time of the service of the attachment of J. T. S.? (2) Were the said moneys, which have been so brought into court by the complainant, the moneys of F. M. or of S. B., on the 23d of February, 1870, at the time of the service of the attachment of R. & 0.?" And the following directions were inserted in the order directing the issue: "The defendant J. T. S., will stand and proceed as plaintiff on the first issue, and the said S. B. as defendant. The defendants S. R. and M. O., will stand and pro- ceed as plaintiffs on the second issue, and the said S. B. as defend- ant. The verdict of the jury shall be for the plaintiff or defendant on each issue if they shall find that, at the time therein set forth, the whole of the said moneys belonged to either said M. or said B., but if the jury shall find that, at the time of the service of the attach- ments, or either of them, any part of the said moneys belonged to said M., and any other part to the said B., they shall specify and declare the amounts they shall severally so find in their verdict upon each of said issues, respectively." An issue out of chancery is directed, in doubtful matters of fact, to satisfy the conscience of the court. It is not adopted as a substitute for omitted evidence, but in cases of doubt and difficulty produced by a conflict of testimony. In such cases, the chancellor considers that the purposes of justice will be better attained by an investigation before a jury, where the witnesses may be seen by (637) §627 EQUITY PLEADING AND PRACTICE. [Ch. 33 sponsive to some allegation of the bill, and, to be responsive, such allegations must not be either evasive or contradictory. The role of evidence is the same as on the hearing in the chancery court, and, "where the oath ia not waived, the allegations of the answer responsive to the bill mus:t Be takeiL aa teue unless con- tradicted by two witnesses, or one witness and corroborating- eir^ cumstances.** § 627. Instructions by the trial court. There is a difference of opinion concerning the necessity of the instruction of the jury by the court trying the issue. In some jurisdictions it is held that neither party has the right to have the court instruct the jury.*^ In Georgia it was held that, when requested to do so, it is the duty of the court to instruct the jury as to what portions of the defendant's answer are re- sponsive to the allegations of the bill, so that the jury may un- derstand from the paper what is legal evidence and what is not.*® Instructions, if given, should be limited to, and per- tinent to, the issues submitted to the jury.*'^ As the object of the issue is to secure the benefit of the jury on the questions of the triors of the fact, their capacity, deportment, accuracy, and sources of information subjected to the tests of a public cross-examination, and the whole merits of the controversy more satisfactorily investigated, than by an examination on paper in the country. It is therefore the rule in most of the American courts, and also in the English courts, not to admit depositions taken in a chancery court to be read to the jury unless proof be given that the witnesses are dead, or abroad, or otherwise unable to attend the trial. Powell v. Manson, 22 Grat. (Va.) 177, 188. 4* Powell V. Manson, 22 Grat. (Va.) 177. *5Van Vleet v. Olin, 4 Nev. 95; Danielson v. Gude, 11 Colo. 87, 17 Pac. 283; Freeman v. Wilkerson, 50 Mo. 554; Thompson, Charge Jur. § 95; Hewlett v. Pilcher, 85 Cal. 542, 24 Pac. 781. «Beall V. Beall, 10 Ga. 342; Webb v. Robinson, 14 Ga. 216; Stanford V. inurphy, 63 Ga. 410; Harris v. Collins, 75 Ga. 97; Adkins v. Hutch- ings, 79 Ga. 260, 4 S. B. 887. *7 Carlisle v. Foster, 10 Ohio St. 198; Farmers' Bank of Mooresville V. Butterfield, 100 Ind. 229. (638) Ch. 33] FEIGNED ISSUES. § 628 fact submitted, the court should not, in the instructions, indicate to them his opinion on the facts.** § 628. Exceptions on trial of issue. In most jurisdictions, on the trial of an issue out of chancery, no bill of exceptions is taken. The conduct and result of the trial are subject to review only in the court of chancery. As the verdict may or may not have been the ground of the decree, an appeal from the latter cannot be made to turn on the judge's rulings at the trial of the feigned issue, but must be decided on the whole case, pleadings, evidence, and verdict, giving to the latter as much effect as it is worth.*® If taken, they can only be used on a motion for a new trial made to the court di- recting the issue.*" *8 Brown v. Parkinson, 56 Pa. 338. See, for instructions to jury, Hoobler v. Hflobler, 128 111. 645, 21 N. E. 571; Stickel v. Bender, 37 Kan. 457; Snouffer's Adm'r v. Hansbrough, 79 Va. 177; Beck v. Beck, 163 Pa. 649, 30 Atl. 236; Bell v. Woodward, 47 N. H. 539. For cases considering the right to direct a verdict in favor of one of the parties, see Baldwin v. Taylor, 166 Pa. 507, 31 Atl. 250; Todd v. Campbell, 32 Pa. 250; Faust v. Haas, 73 Pa. 295; Lord's Appeal, 105 Pa. 451. See, also. Pier v. Prouty, 67 Wis. 218, 30 N. W. 232; Galvin v. Palmer, 113 Gal. 46, 45 Pac. 172; Robinson v. Dryden, 118 Mo. 534, 24 S. W. 448; Ely v. Early, 94 N. C. 1. 48 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 269; Johnson v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 111. 391; Dorr v. Tremont Nat. Bank, 128 Mass. 349. 50 Johnson v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 111. 391; Barnett v. Montgomery & B. R. Co., 51 Ala. 555; Armstrong v. Arm- strong, 3 Mylne & K. 52. For English practice, see Armstrong v. Arm- strong, 3 Mylne & K. 45; Clayton v. Nugent, 8 Jur. 867. For practice in Massachusetts, see Dorr v. Tremont Nat. Bank, 128 Mass. 349. For practice in federal courts, see Watt v. Starke, 101 U. S. 247; Johnson V. Harmon, 94 U. S. 371; Brockett v. Brockett, 3 How. (U. S.) 692. For practice in Virginia, see Stannard v. Graves, 2 Call (Va.) 369; Ford V. Gardner, 1 Hen. & M. (Va.) 72; Watkins v. Carlton, 10 Leigh (Va.) 560; Brockenbrough's Ex'rs v. Spindle's Adm'rs, 17 Grat. (Va.) 21. In some jurisdictions it is held that it is proper, on the trial of an issue, to except to the rulings of the trial judge, the misconduct of the jury, and the admission or rejection of improper evidence. Dodge V. Griswold, 12 N. H. 573; Watt v. Starke, 101 U. S. 24V; Pence (639) § 630 EQUITY PLEADING AND PRACTICE. [Ch. 33 5 629. Form of verdict. The form of verdict is usually the same as a verdict in an action at law. It should be certain, and responsive to the issues.^^ Every issue must be separately passed upon.®^ When a verdict settles and determines that a party to a suit has no in- terest in the property in controversy, it is ordinarily sufficient, so far as his rights are concerned, without proceeding to de- termine who, in fact, has such right."* § 630. Certifying the verdict. After the trial of the feigned issue, the judge before whom the same was tried certifies how the verdict was found, and whether the same was satisfactory to him or not.^^ In the com- V. Garrison, 93 Ind. 345. See Collins v. Jackson, 43 Mich. 561, 5 N. W. 1052; Brockett v. Brockett, 3 How. (U. S.) 691; Watkins v. Carl- ton, 10 Leigh (Va.) 560. 51 Cooper V. Branch, 86 Ga. 234, 12 S. E. 808. 52 Dunn V. Dunn, 11 Mich. 284; Ayers v. Scott, Sneed (Ky.) 162; Cohb's Ex'r y. Burns, 61 Pa. 281; Brink v. Morton, 2 Iowa, 411. Where the jury agree upon one of several issues, and disagree upon others, the court will not receive a finding upon one issue. The finding must be upon all or none. Berry v. Wallen, 1 Overt. (Tenn.) 186. See, also. Cooper v. Branch, 86 Ga. 234, 12 S. E. 808. 53McDaniel v. Marygold, 2 Iowa, 500, 65 Am. Dec. 786. Where the issues were whether a certain contract was made, whether the com- plainant was prevented from performing his part of it by the act of the defendant, and what were the damages, if any, a verdict, "We, the jury, find for complainant, and assess his damages, etc.," was held to be a substantial finding for the complainant on all of the issues sub- mitted to them. State v. Farish, 23 Miss. 483. For other cases on the form and sufficiency of verdicts, see Groover v. King, 55 Ga. 243; Russell V. Falls, 3 H^t. & McH. (Md.) 457, 1 Am. Dec. 380; Watson v. Alexander, 1 Wash. (Va.) 340. 54 1 Barbour, Ch. Pr. 454; Milk v. Moore, 39 111. 587; Trenton Bank- ing Co. V. Rossell, 2 N. J. Eq. 492; Baker v. King, 6 Yerg. (Tenn.) 402; Kerr v. South Park Com'rs, 117 IT. S. 379; Ross v. Pynes, 3 Call (Va.) 568. Where the judge before whom the issues were tried by a jury acted also as chancellor in making the decree, an order submitting the issues, and a certificate of the verdict, were held unnecessary. Wil- son V. Riddle, 123 U. S. 608; Lavell v. Gold, 25 Grat. (Va.) 473. "The court of law is but ancillary to the court of chancery. It has no juris- (640) Ch. 33] FEIGNED ISSUES. § 631 mon-law practice, a postea is a formal statement, indorsed on the nisi privs record, which gives an account of the proceedings at the trial of the action.^® The trial judge should not only re- turn the postea, but should go further, and furnish a fair state- ment of the trial to the court directing the issue; but he need not state the entire evidence or give a minute history of the trial. All that can be required of him is to state the general character of the evidence offered, the part objected to, his rulings upon such objections, and his charge to the jury. If any diifi- culty exists in relation to his report, the chancellor will call on the trial court for an additional report.^® It is held in some jurisdictions that the exceptions taken should also be certified.^^ § 631. Power of court over verdict. The object of an issue is not to bind the court, but to satisfy diction in such, case, except that which is derived from the chan- ellor's order. It must pursue his directions, admitting papers to be read which he orders to be read, and, if required, it must certify any instructions wTiich are given to the jury, that the chancellor may de- cide whether they were rightly given or not. Finally, it can give no judgment unon the verdict, but must certify it to the court of chan- cery, to avail there as it may. Such being the case, the chancellor has the right to see the whole proceedings, and though, to save costs, the verdict only is certified, yet, in strictness, the whole record should be so. But were it otherwise, still the order to certify the verdict necessarily implies that everything should he certified which was spread upon the record as part of the proceedings at the trial. * * * Upon the trial of an issue out of chancery, * * * ^jjg whole of the proceed- ings at the trial, so far as they are spread upon the record, properly constitute a part of the certificate of the verdict, and of course become a part of the chancery record." Watkins v. Carlton, 10 Leigh (Va.) 560, cited approvingly in Johnson v. Harmon, 94 U. S. 371, 378. 55 Black, Law Diet. tit. "Postea"; Bouvier, Law Diet. 56 Bassett v. Johnson, 2 N. J. Eq. 154. See, also, Sloan v. Westfield, 11 S. vJ. 445; Stannard v. Graves, 2 Call (Va.) 369; Dodge v. Griswold, 12 N. H. 573; Brockett v. Brockett, 3 How. (TJ. S.) 691. For form of certificate by the trial court to the chancery court, see Russell v. Falls, 3 Har. & McH. (Md.) 457, 1 Am. Dec. 380. 57 Watkins v. Carlton, 10 Leigh (Va.) 560, 572, cited in Johnson v. Harmon, 94 U. S. 371, 378; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1120; Dodge V. Griswold, 12 N. H. 573. (641) Equity — 41 I 632, EQUITY PLEADING AND PRACTICE. [Ch. 33 its conscience, and it is discretionary "with the court whether ^or not it will adopt or disregard the verdict.^* It may disre- gard it, and enter such a decree as it thinks proper.^^ § .632. Recording verdict. If a decree is based on the verdict of a jury in an issue out fof chancery, the evidence heard by the jury need not be pre- iserved in the record, though, if the court should decree con- trary to the, verdict, the decree must be sustained by evidence contained in the record.®" In South Carolina it is held that parties to a cause are entitled to the judgment of the court, and that a decree appearing to be based on the verdict alone, it not appearing that the court 'concurred in the findings, cannot .stand." 58 Adams, Eq. 377; Watt v. Starke, 101 U. S. 247; Meeker v. Meeker, '75 111, 260; Pittman v. Lamb, 53 Miss. 594; Reed v. Axtell, 84 Va. 231, 4 S. E. 587; Goodyear v. Providence Rubber Co., 2 Cliff. 351, Fed. Cas. No. 5,583; Milk v. Moore, 39 111. 588; Detroit Nat. Bank v. Blodgett, 115 Micli. 160, 73 N. W. 885; Dunn v. Dunn, 11 Mich. 285; Bootle v. Blundell, ,,19 Ves. 494b; East India Co. v. Bazett, 1 Jac. 91. s»Kolin V. McNulta, 147 U. S. 238; Wise v. Lamb, 9 Grat. (Va.) 294; Smith's Adm'r v. Betty, 11 Grat. (Va.) 752; Vangilder v. Hoffman, 22 W. Va. 1. ,See, however, Dudley v. Dudley, 176 Mass. 34, 56 N. E. 1011. In Illinois it is held that,, where a statute requires an issue out of chan- cery to be made up to be tried' by a jury, the verdict is not advisory, ■but is as conclusive as the verdict of a jury in an action at law. Len- ning V. Lenning, 176 111. 180, 52 N. E. 46. Where the issue is not so required by statute, it is discretionary with the chancellor to re- ject the verdict and render a decree against the finding, or grant a new trial, as he may believe justice require?. Guild v. Hull, 127 111. 523, 20 N. E. 665; Biggerstaff v. Biggerstaff, 180 111. 407, 54 N. E. 333. MBonnell v. Lewis, 3 Jll. App. 283; Owens v. Owens, 56 111. App. 313; Fanning' v. Russell, 94 111. 386; Pankey v. Raum, 51 111. 88. 01 Rynerson v. Allison, 28 S. C. 81, 5 S. E. 218; Plinn v. Brown, 6 Rich. (S. C.) 212; Grierson v. Harmon, 16 S. C. 618. The facts and proof on which a verdict is founded ought regularly to be placed on the record of the suit. Bentley v. Clark, 3 Dana (Ky.) 564. It was held in Pennsylvania that where, on bill and answer, the court sent an issue to the jury as to whether the deed and agreement mentioned in the complainant's bill were fraudulently obtained, it is not a valid objection to a decree, after verdict, that the evidence was not returned (642) Ch. 33] FEIGNED ISSUES. § 633 § 633. Granting new trial. Application for a new trial should be made to the court direct- ing the issue.®^ A party against whom a jury has found, on the trial of an issue in an equity case, will be understood as ac- quiescing in the finding, unless he applies for a new trial to the court which directed the issue. ®^ The court, on such a motion, will not go into the equities.®* The application for a new trial must be made within a reasonable time.®^ Where five years and a half had elapsed since the trial, the court refused the ap- plication upon that ground. ®® A motion for a new trial, made the second term after the nisi prius record and certificate of the judge had been filed, on an ex parte statement of the evidence, was denied on the ground of delay and the want of proper docu- ments.®'' By the English practice, an application for a new trial must be made before the hearing on further directions.®* The chancellor may order new trials, for finding issues, until his conscience is satisfied.®* Save in cases required by statute with the verdict to the equity side of the court. Baylor's Appeal, .39 Pa. 495. 62 Johnsoa v. Harmon, 94 U. S. 371; Fanning v. Russell, 94 111. 386; Bootle v. Blundell, 19 Ves. 500; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 153; Birdsall v. Patterson, 51 N. Y. 43; Taylor v. Mayrant, 4 Desaus. (S. C.) 505; Watt v. Starke, 101 U. S. 247. 63 Fanning v. Russell, 94 111. 386; Doe v. Roe, 1 Cow. (N. Y.) 216; Bootle V. Blundell, 19 Ves. 500. On a motion for a new trial, the party submitting it must procure, for the use of the chancellor, notes of the proceeding and the evidence. Clyde v. Richmond & D. R. Co., 18 C. C. A. 467, 72 Fed. 121; Watt v. Starke, 101 U. S. 247. 64 Cohen v. Gratz, 3 Wall. Jr. 379, Fed. Cas. No. 2,963. 65 1 Barhour, Ch. Pr. 454. esLegard v. Daly, 1 Ves. Sr. 192. 67 Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 153. 68 1 Barbour, Ch. Pr. 454; Attorney General v. Montgomery, 2 Atk. 378. In New York, however, it was held that a motion for a new trial was allowable at the hearing upon the equity reserved, the court say- ing that a new trial had been as often granted in that way as upon a previous petition or distinct motion for the purpose. 1 Barbour, Ch. Pr. 454; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 153. 69 Williams v. Bishop, 15 111. 553; Patterson v. Ackerson, 1 Edw. Ch. (N. Y.) 96; Marshall's Ex'rs v. Marshall's Ex'rs, 18 W. Va. 395; Kirby (643) § 633 EQUITY PLEADING AND PRACTICE. [Cll. 33 to be submitted to a jury, a new trial will be ordered on slighter grounds than in an ordinary action at law.''" The court will grant a new trial not only in cases where the verdict is against the evidence, but it will nicely balance the evidence on both sides, and, where it finds that the verdict is contrary to the weight of the evidence, it will direct the issue to be tried over again. Therefore, if the judge before whom the issue is tried certifies the verdict to be against the evidence, the chancellor will usually grant a new trial.''^ It may be granted on the ground of surprise ;'^^ or for fraud practiced upon the party applying therefor;^* or for newly-discovered evidence, where it is shown that there has been some surprise or fraud upon the party applying.'^* The court will not grant a new trial upon the production of new evidence unless it is shown that there has been some fraud or surprise upon the party applying.'"' It will not do so where the party is in possession of the evidence, but either in the exercise of discretion, or from neglect, does not produce it at the trial, or where, though not in possession, V. Newsance, 9 N. C. 105; Larrabee v. Grant, 70 Me. 79; Gaby v. Hankins, 86 111. App. 529; Stace v. Mabbot, 2 Ves. Sr. 552; Stannard V. Graves, 2 Call (Va.) 369. 70 Dunn v. Duna, 11 Mich. 284; Clayton v. Yarrington, 33 Barb. (N. Y.) 144. "In Barker v. Ray, 2 Russ. 63, Lord Eldon said: 'This court, in granting or refusing new trials, proceeds upon very different prin- ciples from those of a court of law. * * * It has been ruled over and over again, that if, on the trial of an issue, a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet, if this court is satisfied * * « the verdict ought not to have been different, it will not grant a new trial merely upon such grounds.' See, also, Hampson v. Hampson, 3 Ves. & B. 41; Brock- enbrough's Bx'rs v. Spindle's Adm'rs, 17 Grat. (Va.) 28." Powell v. Manson, 22 Grat. (Va.) 177, 192. 711 Barbour, Ch. Pr. 456; Southall v. McKeand, 1 Wash. (Va.) 336; Faulconberg v. Peirce, 1 Amb. 210; Cleeve v. Gascoigne, 1 Amb. 323; Lansing v. Russell, 3 Barb. Ch. (N. Y.) 325. 72 1 Barbour, Ch. Pr. 457; Exton v. Turner, 2 Ch. Cas. 80. 73 1 Barbour, Ch. Pr. 457. 7*1 Barbour, Ch. Pr. 457. 75 1 Barbour, Ch. Pr. 457; gtanden v. Edwards, 1 Ves. Jr. 133. (644) '^ Ch. 33] FEIGNED ISSUES. § 633 lie had full notice that it was in the power of the other party to produce it.'^* A new trial will be granted on the ground of the absence of a material witness, whose testimony is not merely corroborative. It must be shown that there is something par- ticular in his evidence which is of importance, and that it was not in the power of the party to have the trial put ofE.^'^ The court will also order a new trial of an issue where it sees reason to be dissatisfied with the conduct of the jury.''^ A new trial will not be directed merely on the ground that improper testi- mony was received at the trial, or that the judge rejected that which was proper, if, upon the whole facts and circumstances, the chancellor is satisfied that the result ought not to have been different, had such testimony been rejected in the one case or received in the other. '^® A new trial may be granted on the ground of misdirection of the jury by the judge who tried the issue, but a new trial on this ground will not be granted if the court is satisfied that, upon the evidence, the jury would not have given a different verdict.*" It has been held that the fact that the presiding judge, upon the trial of an issue out of chan- cery, expressed to the jury his opinion of the facts, is no ground for a new trial.*^ If the suit relates to the right to land, the 78 1 Barbour, Ch. Pr. 457; Standen v. Edwards, 1 Ves. Jr. 133; Le- gard V. Daly, 1 Ves. Sr. 192. ^^l Barbour, Ch. Pr. 458; Cleeve v. Gascoigne, 1 Amb. 323. 78 1 Barbour, Ch. Pr. 458; East India Co. v. Bazett, Jac. 91; Pleasants V. Ross, 1 Wash. (Va.) 156. 79 1 Barbour, Ch. Pr. 459; Peabody v. Kendall, 145 111. 519, 32 N. B. 674; Black v. Lamb, 12 N. J. Eq. 108; Mulock v. Mulock, 1 Edw. Ch. (N. Y.) 14; Meek v. Spracher, 87 Va. 162, 12 S. E. 397; Lyles v. Lyles, 1 Hill Eq. (S. C.) 76; Kirkpatrick v. Atkinson, 11 Rich. Eq. {S. C.) 27; City of Macon v. Harris, 75 Ga. 761; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Hampson v. Hampson, 3 Ves. & B. 41; Bootle v. Blundell, 19 Ves. 500. See Head v. Head, 1 Sim. & S. 150, Turn. & R. 142; Barker V. Ray, 2 Russ. 63; Collins v. Hare, 1 Dow & C. 139. 80 1 Barbour, Ch. Pr. 458; Tatham v. Wright, 2 Russ. & M. 31; Barker V. Ray, 2 Russ. 63; O'Connor v. Cook, 8 Ves. 536; Marshall v. Croom, 60 Ala. 121; Trenton Banking Co. v. Rossell, 2 N. J. Eq. 511; Frank V. Humphreys, 24 S. C. 325. 81 Lyles V. Lyles, 1 Hill Eq. (S. C.) 76. (645) § 634 EQUITY PLEADING AND PRACTICE. [Ch. 33 court will frequently grant new trials of issues, even in cases in which the issue has been properly tried, and the verdict is satis- factory upon the evidence, the practice of the court being adverse to making a decree to bind the inheritance, where there has been but one trial at law.^^ Where, by statute, an issue is required to be submitted to a jury, the court will be governed by the same rules, and the same presumptions will prevail in favor of the verdict, as in an ordinary action at law.*^ If the court is satis- fied that substantial justice is done by a verdict on an issue, the object of which is to inform the conscience of the court, it will not be disturbed on mere technical grounds.** The form of the issue will not be changed upon a motion for a new trial. If the party desires to question the form of the issue, he must do so by presenting a petition for a rehearing of the decree or order directing it.®® § 634. Effect of a verdict on first trial upon tiie second trial. Where a verdict upon a former trial is given in evidence upon a second trial, it is necessary for the person who gives it in evi- dence to show upon what title it was obtained, and the party on the other side is at liberty to show upon what proofs it was given, which, if there is anything impeaching the evidence upon which the first verdict was given, will be very material.*^ 82 1 Barbour, Ch. Pr. 459; Darlington v. Bowes, 1 Eden, 271; Stace V. Mabbot, 2 Ves. Sr. 552; Winchilsea v. Wauchope, 3 Russ. 441; Van Alst V. Hunter, 5 Johns. Ch. (N. Y.) 152. See, also, McRae's Bx'rs v. Wood's Bx'r, 1 Hen. & M. (Va.) 548. 83 Meeker v. Meeker, 75 III. 260; Gibbs v. Hooper, 2 Mylne & K. 353. 84Bassett v. Johnson, 2 N. J. Eq. 154; Black v. Lamb, 12 N. J. Eq. 108. Where a jury impaneled to try an issue fails to agree, the court may refuse to call another jury, and may decide the case on the evi- dence heard. Keithley v. Keithley, 85 Mo. 217. See Armstrong v. Armstrong, 3 Mylne & K. 45. 85 1 Barbour, Ch. Pr. 455; Bassett v. Johnson, 2 N. J. Eq. 154; White V. Lisle, 3 Swanst. 351; Legard v. Daly, 1 Ves. Sr. 192; De Tastet v. Bordenave, Jao. 516. 86 1 Barbour, Ch. Pr. 460; Faulconberg v. Peirce, Amb. 210; Atkins V. Drake, McClel. & Y. 229. (646) Oh. 33] FEIGNED ISSUES. § 63S § 635. Procedure after verdict. After the issues at law have been tried, the cause, unless a new trial is moved for and granted, miist be heard for further directions upon the equity reserved. *'' The cause then comes on to be heard in the regular course, when such final or other decree as the case calls for will be pronounced.*® "A verdict upon an issue ordered by a court of equity is in no just sense final upon the facts it finds, or binding upon the judgment of the court. The court may, at its pleasure, set it aside, and grant a new trial, or, disregarding it, may proceed to hear the cause, and decide in contradiction to the verdict, or it maj' adopt the verdict, suh inodo, and give it a limited efl^ect only, but it can never be known what eft'ect is given to the verdict, or whether any is given to it, until the subsequent hearing upon tht. merits, and a decree rendered thereon by the court. Under such circumstances, it is plain to me that this verdict is not admis- sible in evidence, for it has not been sanctioned or established by the court, and, without such sanction, it is no proof of any fact but that it was actually rendered in the case, and not proof of the facts found thereby."®'' 8T1 Barbour, Ch. Pr. 460; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1146; Allen V. Blunt, 3 Story, 742, Fed. Cas. No. 216. By the English practice, this could not be done until after the first four days of the term next after the trial have elapsed, in order that the party against whom the verdict had been found might have an opportunity of moving for a new trial. 1 Barbour, Ch. Pr. 461. This practice was afterwards changed, and the cause allowed to be set down as soon as the trial had taken place. Rodgers v. Nowill, 6 Hare, 338. 88 1 Barbour, Ch. Pr. 461. See Prudden v. Lindsley, 29 N. J. Eq. 615; Armstrong v. Armstrong, 3 Mylne & K. 45; Pember v. Mathers, 1 Brown Ch. 52; East India Co. v. Donald, 9 Ves. 275; Legh v. Hollo- way, 8 Ves. 213; Woodley v. Johnson, 1 Moll. 394. 89 Mr. Justice Story, in Allen v. Blunt, 3 Story, 742, Fed. Cas. No. 216. In Ogle V. Adams, 12 W. Va. 213, 224, is found a form of a decree on an issue out of chancery: "This cause came on this day to be further heard upon the bill and answer and replication thereto, the depositions of witnesses, and the verdict of the jury upon the issue out of chancery in this cause, and was argued by counsel. On consideration whereof, (647) §635 EQUITY PLEADING AND PRACTICE. [Ch. 33 tlie said verdict is approved and confirmed. Tlie court doth adjudge, order, and decree," etc. Costs of feigned issites: These are usually in the discretion of the court. 1 Barbour, Ch. Pr. 462; 2 Harrison, Ch. Pr. 570. On the question of costs, see Beames, Costs, 234, appendix xv., 369; Standen v. Edwards, 1 Ves. Jr. 135; Berney v. Eyre, 3 Atk. 387; Wright V. Wright, 5 Sim. 449; White v. Wilson, 13 Ves. 87; Webb v. Claverden, 2 Atk. 424; Soaife v. Scaife, 4 Russ. 309; Bearblock v. Tyler, 1 Jac. & W. 225; Anonymous, 2 P. Wms. 68; Edwin v. Thomas, 1 Vern. 489; White V. Lisle, 4 Madd. 214; Devie v. Brownlow, 2 Dickens, 796. (648) CHAPTER XXXIV. EVIDENCE. § 636. In general. As soon as the cause is at issue by tlie filing of a replication, both parties may proceed to take testimony for the purpose of establishing their respective cases. If no replication is filed, the answer is taken as true, and therefore the defendant needs no proof, and the complainant, not having replied, cannot offer any.-' A material fact alleged in the bill and denied by the answer must be proved.^ Where a material averment in a bill is neither admitted nor denied by the answer, it must be sup- ported by proof .^ Matter alleged in an answer by way of avoid- ance, and not responsive to the bill, must be supported by proof where a general replication has been filed.* It is held that evi- dence of admissions on the part of a complainant tending di- 1 1 Barbour, Cli. Pr. 254. It is not within the scope of this work to consider other than most briefly the subject of evidence in equity- causes. Reference is made to Gresley's Equity Evidence; Greenleaf, Evidence, volume 3 of which, on pages 237-370 of the 16th edition (sec- tions 249-385), treats fully of evidence in proceedings in equity; Taylor, Evidence; Rice, Evidence; American Digest (volume 20, Century Edi- tion), where the American decisions from 1658 to 1896 on evidence are digested. 2 Greenwade v. Greenwade, 3 Dana (Ky.) 495; Vanpelt v. Hutchin- son, 114 111. 435, 2 N. E. 491. 3 Young V. Grundy, 6 Cranch (U. S.) 51; Cushman v. Bonfield, 139 111. 219, 28 N. E. 937. See Joice v. Taylor, 6 Gill & J. (Md.) 54, 25 Am. Dec. 325. The rule is otherwise on the question of the dissolu- tion of an injunction. Young v. Grundy, 6 Cranch (U. S.) 51. 4 Simson v. Hart, 14 Johns. (N. Y.) 63; Humes v. Scruggs, 94 V. S. 22; Brooks v. Gillis, 12 Smedes & M. (Miss.) 538; Shields v. Tram- mell, 19 Ark. 51; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Wheat V. Moss, 16 Ark. 243. (649) § 637 EQUITY PLEADING AND PRACTICE. [Ch. 34 rectlj to contradict his testimony on a material matter in issue is admissible, although not set out in the answer.^ The rule is well settled that every material fact on either side must be set up in the pleadings, and that the court can no more consider what is proved, but not alleged, than what is alleged, but not proved.® The allegations and proofs must set forth and sup- port the same cause of action. A party cannot state one case in his pleadings, and make a different one by his proofs.'^ The rule that the proof and pleadings must correspond is to be ap- plied equitably, and not rigidly, especially when it is appealed to on behalf of a party in full possession of the facts at all times, and therefore not misled by a pleading which, though inaccurate in some details, yet contains suiEcient averments to support a claim for the relief prayed for.^ A variance be- tween pleadings and proof, when not material to the rights of the parties, or upon a point not affecting the merits, is not fatal.^ § 637. General rules of evidence in equity. The rules of evidence in courts of law and in courts of equity are generally the same.^° Thus, parol testimony is generally 5 Lyford v. Gove, 44 N. H. 253, citing Gresley, Eq. Ev. part III. c. 3; 3 Greenleaf, Ev. § 323, note. See, as to admissions of defendants, supra, § 314. 6 Gresley, Bq. Ev. (Ed. 1837) 159, 161; Anderson v. Northrop, 30 Fla. 612, 12 So. 318; Maher v. Bull, 44 111. 97; Moores v. Moores, 16 N. J. Eq. 275; James v. McKernon, 6 Jolins. (N. Y.) 543; Foster v. Goddard, 1 Black (IT. S.) 506; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Harrison v. Nixon, 9 Pet. (U. S.) 483; Boone v. Chiles, 10 Pet. (U. S.) 183; Clarke v. Turton, 11 Ves. 240; Whaley v. Norton, 1 Vern. 483; Smith v. Clarke, 12 Ves. 477. T McKay v. Bissett, 10 111. 499; South Park Com'rs v. Kerr, 13 Fed. 503; Graham v. Tankersley, 15 Ala. 634; White v. Morrison, 11 111. 361; Piatt v. Vattier, 9 Pet. (U. S.) 405. s Crawford v. Moore, 28 Fed. 824, citing Texas v. Hardenberg, 10 Wall. (IT. S.) 68. 9 Booth V. Wiley, 102 111. 84. 10 Cary v. Herrin, 59 Me. 358; Lake v. Phillips, 1 Ch. Rep. 59; Dwight V. Pomeroy, 17 Mass. 303, 9 Am. Dec. 148; Manning v. Lechmere, 1 (650) Ch. 34J EVIDENCE. g 637 inadmissible, both at law and in equity, to vary a written in- strument.^^ It is said that courts of equity admit of an ex- ception to the general rule where a mistake is alleged.^^ A court of chancery is warranted in making the same deductions from facts as a jury might make.^^ There is, as a general rule, no difference in respect to the burden of proof between proceedings at law and in equity. In both, the party main- taining the affirmative of the issue usually has it cast upon him.^* The rule does not apply, however, in case of fiduciary and confidential relations between the parties. -^^ The com- plainant must show, by his allegations and proofs, his right to a decree, before the defendant can be required to sustain the affirmative allegations of his answer.^® In a suit to establish Atk. 453; Stevens v. Cooper, 1 Jolins. Ch. (N. Y.) 425; Harmer v. Gwynne, 5 McLean, 313, Fed. Cas. No. 6,075. See Barraque v. Siter, 9 Ark. 545; Buttlar v. Buttlar, 57 N. J. Eq. 645, 42 Atl. 755. 11 Hunt V. Rousmanier's Adm'rs, 8 Wheat. (XJ. S.) 174; Peterson v. Grover, 20 Me. 363; Elysville Mfg. Co. v. Okisko Co., 1 Md. Ch. 392. See 3 Greenleaf, Ev. §§ 360-367, considering the modifications of the general rule. However closely a court of equity may be disposed to adhere to the salutary rule of law that parol evidence is not admissihle to vary, contradict, or control a written instrument, it must neces- sarily exercise more liberality in admitting evidence in order to reach the equity of the case than would be allowed at law. Stoutenburgh V. Tompkins, 9 N. J. Eq. 336. Courts of equity have manifested much more liberality in admitting parol evidence in cases of specific per- formance to resist than to enforce it, yet the principle has never been established by authority that such evidence is admissible, even in de- fense, to vary or contradict a written agreement. Stoutenburgh v. Tompkins, 9 N. J. Eq. 336. A defendant cannot resist a specific per- formance on the ground that the agreement entered into differs from that which was reduced to writing, without showing that the differ- ence was the result of fraud, accident, mistake, or surprise. Stouten- burgh V. Tompkins, 9 N. J. Eq. 336. See 3 Greenleaf, Ev. § 361. 12 Peterson v. Grover, 20 Me. 363. 13 Thomas v. Visitors of Frederick County School, 7 Gill & J. '(Md.) 369; 3 Greenleaf, Ev. § 272. 1* Pusey V. Wright, 31 Pa. 387; Evans v. Winston, 74 Ala. 349; Beecher V. Brookfield, 33 Ark. 259; Seamans v. Burt, 11 R. I. 320; Miller v. Lamar, 43 Miss. 383. 15 3 Greenleaf, Ev. § 253. 18 Bryant v. Groves, 42 ^. Va. 10, 24 S. E. 605. (651) ^ 639 EQUITY PLEADING AND PRACTICE. [Ch. 34 title to real property, a complainant must recover upon the strengtL of his own title, and not upon the weakness of the defendant's.^ '^ If the answer admits a fact alleged in the bill, but insists on matter of avoidance, the complainant need not prove the fact admitted, but the defendant must prove the mat- ter in avoidance.^* When the burden of proving a fact is on the defendant, if the proof adduced leaves it in a state of doubt and uncertainty, the fact cannot be considered established.^' If the testimony in the cause is equally balanced, the party who holds the afSrmative as to the disputed fact to which the testimony relates must fail.^"* The court will not weigh testi- mony by the mmiber of witnesses alone, for circumstances and known facts may often establish the truth more conclusively than the oaths of the parties or the written depositions.^^ § 638. Order of putting in evidence. The order of the introduction of evidence is in the discretion of the court. The adherence to a prescribed order is not as essential in chancery cases as at law, where issues are tried by the jury.^^ § 639. Judicial notice. Matters judicially noticed need not be proved.^^ 17 Pickens v. Harper, Smedes & M. Cli. (Miss.) 539. 18 Clarke v. White, 12 Pet. ("U. S.) 178. 18 Brandon v. Cabiness, 10 Ala. 155. 20 Rogers V. Traders' Ins. Co., 6 Paige (N. Y.) 583; Hargraves v. Miller's Adm'x, 16 Ohio, 338. 2iBenter v. Patch, 7 Mackey (D. C.) 590. See, on question of chan- cellor weighing testimony, 3 Greenleaf, Ev. §§ 375-378. 22 Thompson, Trials, § 344; Jones v. Galbraith (Tenn. Ch. App.) 59 S. W. 350; Smith v. Britton, 4 Humph. (Tenn.) 201; Goss v. Turner, 21 Vt. 437. 23 1 Greenleaf, Ev. §§ 4-7; 3 Greenleaf, Ev. §§ 269, 271. It is not within the scope of this work to treat of matters judicially noticed. Reference is made to the various works on evidence. See supra, § 103. (652) Ch. 34] EVIDENCE. § 640 § 640. Admissions in pleadings. Matters admitted in pleadings cannot be controverted by tbe party making the admissions.^* The admissions in a bill need not be proved by the defendant,^^ and whatever is admitted in the answer need not be proved by the complainant ;^® but a decree cannot be entered against infant defendants without proof to sustain the case against them, even though the guard- ian ad litem admits the charges in the bill to be true.^^ The rule that evidence is inadmissible to prove or disprove facts al- ready admitted in the pleadings applies only where such admis- sion is full and unequivocal, and therefore conclusive upon the party, and this will be determined by the court in its discretion, upon the circumstances of the particular case.^^ It is said that an original bill, not verified by the complainant, prepared by his solicitor under a mistaken view of the facts, is not ad- missible against the complainant, where an amended bill was subsequently filed.^* It is said that the answer of the de- fendant, being a deliberate statement on oath, is evidence against him of all matters it contains, and is extremely strong, though not so entirely conclusive as to prevent him from showing that it was made under an innocent mistake. It may be read, 2*3 Greenleaf, Ev. § 275; Wood v. Ziegler, 99 Tenn. 515, 42 S. W. 447; Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419; Evans v. Huff- man, 5 N. J. Eg. 354; Toney v. Moore, 4 Stew. & P. (Ala.) 347; Home Ins. & Banking Co. v. Myer, 93 III. 271; Weider v. Clark, 27 111. 251; Fergus v. Tinkham, 38 111. 407. 26 Peacock v. Terry, 9 Ga. 137; Lawless v. Jones, 1 A. K. Marsh. (Ky.) 16. 28 Justices of Inferior Court of Pike County v. Griffin & West Point Plank Road Co., 15 Ga. 39; Surget v. Byers, Hempst. 715, Fed. Cas. No. 13,629; Clarkson v. Louderback, 36 Fla. 660, 19 So. 887; Home Ins. & Banking Co. v. Myer, 93 111. 271. 27 Chaffin v. Kimball's Heirs, 23 111. 36; McClay v. Norris, 9 111. 370. See, also, Bulkley v. Van Wyck, 5 Paige (N. Y.) 536. See supra, § 318; post, § 709. 28 3 Greenleaf, Et. § 358, citing Gresley, Bq. Ev. pp. 237, 238. 29 Wenegar v. Bollenbach, 1^0 111. 222, 54 N. E. 192 ; Holland v. Rog- ers, 33 Ark. 251; Mecham v. McKay, 37 Cal. 154. See 3 Greenleaf, Ev. § 275. (653) § 640 EQUITY PLEADING AND PRACTICE. [Ch. 34 notwithstanding the complainant, by his replication, has de- nied the truth of the answer.^" Admissions in an unsworn answer are conclusive against the defendant in the pending cause, though unavailable collaterally.*^ Allegations in an answer not under oath, which are mere declarations made by the defendant in his own interest, have no evidential effect.*^ It is only the answer of a person sui juris that can be treated as an admission of the facts, so far as to dispense with other proof of them. The answer of an infant by his guardian can- not be read against him.** If, after an infant comes of age, he unreasonably delays to apply for leave to make a better de- fense, he will be taken to have confirmed his former answer, and it may even be read against him. Or, if his father, being an heir at law and of age, has, by his answer, admitted the due execution of the will of his ancestor, but died before the cause was brought to a hearing, the answer may be read against the infant as an admission of the will, and sufficient to establish it.** Answers made by guardians of idiots, persons of perma- 30 3 Greenleaf, Ev. § 277. See Goodwin v. McGehee, 15 Ala. 232. 31 Craft v. ScMag, 61 N. J. Eq. 567, 49 Atl. 431; Manley v. Mickle, 55 N. J. Eq. 567, 37 Atl. 738. "The manner of statement in the answer is sometimes material to its effect as an admission against the defend- ant, dispensing with other proof. For a mere statement that the de- fendant has been informed that a fact is as stated, without expressing his belief, will not be regarded as an admission of the fact; but if he answer that he believes or is informed and believes that the fact is so, this will be deemed a sufficient admission of the fact, unless this statement is coupled with some aualifying clause, tending to the con- trary, the general rule in equity on this point being that what the defendant believes the court will believe. But an exception to this rule has been admitted in regard to the belief of an heir at law of the due execution of a will by his ancestors; it being the course of the court to require either a direct admission, or proof in the usual manner." 3 Greenleaf, Ev. § 282. S2 Craft V. Schlag, 61 N. J. Eg. 567, 49 Atl. 431. 33 3 Greenleaf, Ev. § 278; Segard v. Sheffield, 2 Atk. 377; Eggleston V. Speke, 3 Mod. 258; Wrottesley v. Bendish, 3 P. Wms. 237; Eaton V. Tillinghast, 4 R. I. 276; Benson v. Wright, 4 Md. Ch. 278. 34 3 Greenleaf, Ev. § 279. See Cecil v. Salisbury, 2 Vern. 224; Ben- nett V. Leigh, 1 Dickens, 89; Lock v. Foote, 4 Sim. 132; Robertson v. Parks, 3 Md. Ch. 65. (654) Ch. 34] EVIDENCE. § 641 nently weak intellect, and those who, by reason of age or in- firmity, are reduced to a second infancy, may be read against them.^^ § 641. Bill in another suit as evidence. A bill in chancery is not evidence against the party in whose name it is filed, unless his privity is shown. Where that priv- ity is established, the bill is admissible to prove the fact that such a suit was instituted, and what was the subject of it, but it is not evidence, by way of admission against the party by whom it was filed, of the truth of the facts alleged or stated in it.^® A bill not under oath, nor signed by the complainant, but only by his solicitors, is incompetent, in a suit by the same complainant against another party, as an admission by the com- plainant that he has no cause of action against the defendant.*'^ It is not evidence of the facts stated in it against the complain- ant, imless sworn to by him. Its allegations are to be consid- ered as mere suggestions of counsel.^* A bill is not evidence against the party filing it unless privity is shown, and cannot be so regarded when filed by the counsel of a corporation.^® 35 3 Greenleaf, Ev. § 280; Leving v. Caverly, Pinch, Prec. Ch. 229. See Stanton v. Percival, 35 Eng. Law & Eq. 1. asBoileau v. Rutlin, 2 Exoh. 665, 12 Jur. 899; Doe d. Bowerman v. Sybourn, 7 Term R. 2; Combs v. Hodge, 21 How. (U. S.) 397. See 3 Greenleaf, Bv. § 274. 3T 3 Greenleaf, Ev. § 274 ; Delaware County Com'rs v. Diehold Safe 6 Lock Co., 133 U. S. 473; Wenegar v. Bollenhach, 180 111. 222, 54 N. E. 192; Combs v. Hodge, 21 How. (U. S.) 397; Hope v. Allis, 115 U. S. 363; Dennie v. Williams, 135 Mass. 28. 38 Adams v. McMillan, 7 Port. (Ala.) 73; McRea v. Insurance Bank of Columbus, 16 Ala. 755; Durden v. Cleveland, 4 Ala. 225; Rankin V. Maxwell's Heirs, 2 A. K. Marsh. (Ky.) 488, 12 Am. Dec. 431. See Gresley, Eq. Ev. 322; Stump v. Henry, 6 Md. 201. 30 Vanneman v. Swedesboro Loan & Building Ass'n, 42 N. J. Eq. 263, 7 Atl. 676, citing 3 Greenleaf, Ev. § 278; Boileau v. Rutlin, 2 Exch. 665, 12 Jur. 899; Doe d. Bowerman v. Sybourn, 7 Term R. 2; Sweet V. Tuttle, 14 N. Y. 465. The established rule is to consider a bill in equity as the mere allegation of counsel, unless the party is connected with it by proof showing a recognition of its contents, as would be the case if the bill was verified by complainant's oath. It is possible (655) §644 EQUITY PLEADING AND PRACTICE. [Cll. 34 § 642. Pleas and demurrers as evidence. It is said that a plea, being always in avoidance of and not responsive to the bill, stands for nothing as evidence of the facts stated in it.*'' "But a demurrer * * * does not ad- mit the facts charged in the bill. * * * So it is as to pleas in chancery; these, as well as demurrers, being merely hypo- thetical statements, that, supposing the facts to be as alleged, the defendant is not bound to answer."*^ § 643. Gross bill as evidence. If a cross bill is taken as confessed, it may be used as evi- dence against the complainant in the original suit on the hear- ing, and will have the same effect as if he had admitted, in an answer, the same facts.'*^ § 644. Answer to cross bill. The answer of the complainant in the original cause to a cross bill which has been dismissed cannot be read in evidence in his own favor.*^ The answer to a cross bill filed for discovery in aid of the defense cannot be used by the party making it, unless the complainant in the cross bill shall first produce it in evi- other modes of recognition might be shown. Durden v. Cleveland, 4 Ala. 225. A record in chancery in a suit between the same parties, and relating to the same subject of inquiry, is admissible in evi- dence in a subsequent suit for the purpose of proving antecedent ad- missions of either party to rights again involved in controversy. A bill of complaint sworn to by complainant is admitted in evidence on precisely the same grounds as the answer. Mobberly v. Mobberly, 60 Md. 376. See, also, Elliott v. Hayden, 104 Mass. 180; Taylor, Bv. (5th Ed.), §§ 759, 1560; Gresley, Bq. Bv. 303; Central Bridge Corp. v. City of Lowell, 15 Gray (Mass.) 106; Bliss v. Nichols, 12 Allen (Mass.) 443. 40 Gernon v. Boccaline, 2 Wash. C. C. 199, Fed. Cas. No. 5,366 ; Tilgh- man v. Tilghman, 1 Baldw. 464, Fed. Cas. No. 14,045; 1 Greenleaf, Ev. §551. 41 1 Greenleaf, Ev. § 551 ; Tomkins v. Ashby, 1 Mood. & M. 32. 42 2 Barbour, Ch. Pr. 135; White v. Buloid, 2 Paige (N. Y.) W4; Griswold v. Simmons, 50 Miss. 137; Kidder v. Barr, 35 N. H. 235. 43 Saffold V. Home, 71 Miss. 762, 15 So. 639. (656) Ch. 34] EVIDENCE. § 645 dence.** If tlie defendants have brought a cross bill, includ- ing, as defendants thereto, the original complainants and a third person, who is so interested in the subject-matter of the controversy on the original bill as not to be a competent wit- ness therein for the complainants, the answer of such third per- son to the cross bill can in no way be used by the complainants in the original bill to sustain the case made by them on that bill." I 645. Answer as evidence — In general. In the absence of a statute or rule of court, it is a general rule that the answer of the defendant, so far as responsive to the bill, must be taken as true, unless it be overcome by two wit- nesses, or one with strong corroborating circumstances.*^ This rule applies where an issue out of chancery is tried by a jury.*'^ When an answer is traversed, and the case set down for hear- ing on bill, answer, and traverse, the averments in the answer will only be taken as proof so far as they are responsive to the bill.** An answer, in order to be evidence so as to require something more than the evidence of a witness to overcome it, must be distinct, positive, and of matter which may be within 44 Kidder v. Barr, 35 N. H. 235; Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131. "Where a cross bill is answered, and the matter is brought to a hearing, and the answer used, it is evidence for the party making It so far as responsive to the bill." Kidder v. Barr, 35 N. H. 235. 45 Blodgett V. Hobart, 18 Vt. 414. 46 Story, Eq. PI. § 849; Vigel v. Hopp, 104 U. S. 441; Marshall v. Groom, 52 Ala. 554; White v. Walker, 5 Fla. 478; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Johnson v. Richardson, 38 N. H. 353; Chance V. Teeple, 4 N. J. Eq. 173; Pusey v. Wright, 31 Pa. 387; Gray v. Paris, 7 Yerg. (Tenn.) 155; Kennedy v. Baylor, 1 Wash. (Va.) 162. 4T Powell V. Manson, 22 Grat. (Va.) 177. 48 3 Greenleaf, Ev. § 284; 1 Barbour, Ch. Pr. 317; Wilkinson v. Bau- «rle, 41 N. J. Eq. 636, 7 Atl. 514; Viele v. Blodgett, 49 Vt. 270, 277; United States V. Ferguson, 54 Fed. 28; Cooper v. Tappan, 9 Wis. 361; Voor- hees V. Voorhees' Ex'r, 18 N. J. Bq. 223; Freeman v. Tatham, 5 Hare, 329; Bartlett v. Gillard, 3 Russ. 149; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62. (657) Equity — 42 §645 EQUITY PLEADING AND PRACTICE. [Ch. 34 the knowledge of the defendant.*® It is only conclusive as to facts directly and particularly averred, and not as to matters of belief, unless the grounds of belief are disclosed and deemed sufficient.^" The answer of a defendant, professing a want of knowledge of the facts of the bill, is not evidence against the complainant. Its only legal effect is to compel him to establish his case by testimony.^^ An answer is not evidence for the de- fendant when it shows on its face that the defendant had no per- sonal knowledge of the matters alleged.^^ Answers to specific interrogatories in a bill are evidence for the defendant making the answers.^* It is said that no presumption will be indulged against evidence furnished by the defendant's answers to special interrogatories, on account of its being furnished by an inter- ested party.^* Where every allegation of fraud in a bill to set aside a sale was denied, the defendants were allowed the full benefit of their answer, so far as it was responsive to the bill.^,^ The rule which makes responsive answers proof for the defend- ant applies only to fair answers, and not to those which, upon their face, are incredible.^^ An answer, to be evidence for 49 Bellows v. Stone, 18 N. H. 465; Biscoe v. Coulter, 18 Ark. 423; Copeland v. Crane, 9 Pick. (Mass.) 78; Parkman v. Welch, 19 Pick. (Mass.) 231; Drury v. Conner, 6 Har. & J. (Md.) 288. 50 Copeland v. Crane, 9 Pick. (Mass.) 73. See McGuffie v. Planters' i Bank, Freem. Ch. (Miss.) 383; Eodgers v. Rodgers, 1 Paige (N. Y.) 426. 51 Drury v. Conner, 6 Har. & J. (Md.) 288. 52 Fryrear v. Lawrence, 10 111. 325; Barclay v. Dawson, 26 Ark. 417; Deimel v. Brown, 136 111. 586, 27 N. E. 44; Lawrence's Ex'rs v. Law- rence's Adm'rs, 4 Bibb (Ky.) 357; Watson v. Palmer, 5 Ark. 501. 53 Money v. Dorsey, 7 Smedes & M. (Miss.) 15; Eberly v. GrofC, 21 Pa. 251; Jones' Heirs v. Perry, 10 Yerg. (Tenn.) 59, 30 Am. Dec. 430; Shultz V. Hansbrough, 33 Grat. (Va.) 567; Fant v. Miller, 17 Grat. (Va.) 187; Shurtz v. Johnson, 28 Grat. (Va.) 657. siPetrie's Ex'rs v. Wright, 6 Smedes & M. (Miss.) 647; Clason v. Morris, 10 Johns. (N. Y.) 524, 542. See, however, Viele v. Blodgett, 49 Vt. 270. 55 Allen V. Cole, 9 N. J. Bq. 286, 59 Am. Dec. 416. 58 Stevens v. Post, 12 N. J. Eq. 408; Deimel v. Brown, 136 111. 586, 27 N. E. 44; Fryrear v. Lawrence, 10 111. 325. But see Hartley's Ap- peal, 103 Pa. 23. (658) Ch. 34] EVIDENCE. § 645 the defendant, must be an answer to a fact averred in the bill, and not to a mere inference of law.®'^ It must not be evasive.^* If the whole subject-matter of the statement or allegations in the answer might have been left out, then the allegations in the answer upon that subject are not responsive to the bill; but if the omission of some statement upon that subject would fur- nish just ground of exception to the answer, then the statement, to the extent to which it is required, and whatever its character, whether affirmative or negative, is but a response to the inqmsi- tion of the complainant.^* The true test would seem to be whether the question answered would be proper in a trial at law, whether it would be relevant, such as the witness would be bound to answer, and the answer be competent testimony.^^ 57 Robinson v. Cathcart, 2 Cranch, C. C. 590, Fed. Cas. No. 11,946. 58 3 Greenleaf, Ev. § 287. 69 Bellows v. Stone, 18 N. H. 465, quoted in Eaton's Appeal, 66 Pa. 483. 60 Dunham v. Gates, Hoffm. Ch. (N. Y.) 185'. Baton's Appeal, 66 Pa. 483, reviews and caret uUj' considers this question. See, also, Schwarz v. Wendell, Walk. (Mich.) 267; Cooper v. Tappan, 9 Wis. 361; Pus«y v. Wright, 31 Pa. 387; Dunham v. Jackson, 6 Wend. (N. Y.) 22; iflrk- patrick v. Love, Amb. 589; Blount v. Burrow, 4 Brown Ch. 75; Ridge- way V. Darwin, 7 Ves. 404. "The rule in relation to this subject is clearly stated in a case before Lord Chancellor Cowper, in 1707, re- ported in Gilbert's Law of Evidence (page 45), which was a bill by creditors against an executor for an account of the personal estate of his testator. The executor set forth in his answer that the testator left £1,100 in his hands, and that afterwards, on a settlement with the testator, he gave his bond for £1,000, and the other £100 was given him by the testator for his care and trouble. There was no other evidence in the case of the £1,100 having been deposited with the executor. The answer was put in issue, and it was urged that the answer, though put in issue, should be allowed, since there is the same rule of evidence in equity as at law, and therefore, if a man is so honest as to charge himself, no testimony appearing to charge him, he ought to find credit when he swore in his own discharge. But it was answered and resolved by the court that, when an answer was put in issue, what was confessed and admitted need not be proved; but it behooved the defendant to make out by proofs what was in- sisted on by way of avoidance. But this was held under this dis- tinction: when the defendant admitted a fact, and insisted on a dis- tinct fact by way of avoidance, then he ought to prove the matter of (^59) §646 EQUITY PLEADING AND PRACTICE, [Ch. 34 § 646. Matters of affirmative defense. The rule that a sworn answer must be received as true does TLot extend to matter asserted by way of defense. New matter Ms defense; but if it liad been one fact, as if the defendant bad said the testator bad given him £100, it ought to have been allowed, un- less disproved, because nothing of the fact charged is admitted." Parkes v. Gorton, 3 R. I. 27. "If a plaintiff state an act, transaction, or contract as the foundation of his equity the defendant has a right to state the vrhole of such act, transaction, or contract as in truth it was. Otherwise, a plaintiff, by giving only part of a contract, if the .defendant must admit that part, and cannot go on to describe truly , all the parts of it, the grossest injustice might be done. * * * But . another subsequent, independent, and distinct fact, not stated in the bill, is not responsive, and therefore not within the rule. A few of the many decisions may be referred to in support of these views. One of the earliest is Kirkpatrick v. Love, Amb. 589. There was a decree for a general account, both sides to be examined on interrogatories. Plaintiff admitted the receipt of a parcel of satins, and in the same sentence swore that he had paid for them,— in other words, that it was a cash transaction. It was held that the master was right in re- fusing to charge the plaintiff with the satins. The court put it upon the ground that the charge and discharge was [were] in the same sentence; otherwise, it had been if the discharge or avoidance had been in a distinct sentence. In Blount v. Burrow, 4 Brown, Ch. 75, Lord Hard- wicke said: 'If a man admits by his answer that he received several sums at particular times, and in the same answer swears he paid away those sums at other times in discharge, he must prove his dis- charge; otherwise it would be to allow a man to swear for himself, and to be his own witness.' Lord Chancellor Eldon, in Ridgeway v. Dar- win, 7 Ves. 404, said that, 'if a man admitted he had received certain sums, which sums he had paid, the discharge following immediately in the same sentence, that ^ yss. County of Cook. J The People of the State of Illinois, to G. H., Greeting: We command you that, all business and excuses laid aside, you at- tend before the Honorable M. F. T., one of the judges of our circuit court of Cook county, on the first day of July, A. D. 1902, at ten o'clock in the forenoon, at his court room, in the county building, in Chicago, in said county, to testify and give evidence in a certain cause now pending and undetermined in said court, wherein A. B. is complain- ant and C. D. is defendant, on the part of the said C. D., and that you also diligently search for, inquire after, and bring with you a certain contract entered into on or about January 1, 1899, by and be- tween L. M. and M. N. relative to the construction of a certain build- ing at No. 550 State street, in the city of Chicago, together with all copies, drafts, and vouchers relating to the said document, and all other documents and paper writings whatsoever that can or may afford any information or evidence in said cause; and this you shall in no wise omit, under the penalty of the law. And have you then and there this writ. Witness John A. Cooke, clerk of our said court, and the seal thereof, at Chicago, in said county, this 20th day of June, A. D. 1902. John A. Cooke, [Seal.] Clerk. § 671. Compelling the attendance of witnesses out of the juris- diction of the couri;. No compulsory process can be issued to compel the attendance of witnesses to be examined wbo are resident out of the juris- diction of the court. Therefore, no subpoena can be issued for that purpose. If the witness will not attend voluntarily, he cannot be examined, unless there is some statute of the state in which the witness resides compelling him to appear and tes- tify upon a foreign commission.^^' Such statutory provisions respecting commissions from other states are quite common.-^^* 183 1 Barbour, Ch. Pr. 301; Martin v. People, 77 111. App. 311; In re Bushnell, 19 Misc. Rep. 307, 44 N. Y. Supp. 257; Wharton, Conflict of Laws, § 723; In re Searls, 22 App. Div. 140, 48 N. Y. Supp. 61. 184 In Illinois, such a statute existed, but it was held to be uncon- stitutional, and that, therefore, attendance is voluntary. Puterbaugh v. Smith, 131 111. 199, 23 N. E. 428. (693) § 672 EQUITY PLEADING AND PRACTICE. [Oh. 34 In the absence of any statute upon the subject, courts of equity assume jurisdiction to compel the giving of testimony by resi- dents of the state, to be used in a suit pending in a foreign coun- try, by a bill of discovery filed for that purpose.^*'' § 672. Compelling corporate officer to produce books. An officer or agent of a private corporation, not a party to a suit, cannot be compelled to open, for examination, the books or records of the corporation.^®® 185 In re United States Pipe-Line Co., 16 App. Div. 188, 44 N. Y. Supp. 714; Mitchell v. Smith, 1 Paige (N. Y.) 287; Post v. Toledo, C. & St. L. R. Co., 144 Mass. 341, 11 N. E. 540. 186 Southern Ry. Co. v. North Carolina Corporation Commission, 104 Fed. 700; Henry v. Travelers' Ins. Co., 35 Fed. 15. See, on this point. In re Pacific Railway Commission, 32 Fed. 250; Wertheim v. Continen- tal Railway & Trust Co., 15 Fed. 716. In a suit by a single shareholder against a corporation, an order will not be made allowing an expert accountant to examine its books and papers, where a subpoena duces tecum will produce the same before an examiner, the cause being at issue. Clarke v. Eastern Building & Loan Ass'n, 89 Fed. 779. (694) CHAPTER XXXV. HEARING. § 673. In general. The cause is usually set down for hearing by the complain- ant, who, under the English practice, was required to do so with- in four weeks after the evidence was closed, and who gave notice to the adverse party of the day appointed for the hearing by raeans of a writ called a "subpoena to hear judgment." If the complainant failed to have the case set for hearing, the defend- ant might move to dismiss the bill for want of prosecution, or else have the case set down at his own request, and obtain a subpoena to hear judgment, and serve the same upon the com- plainant.^ In the United States, the practice is largely regu- lated in the various jurisdictions by statute or rule of court, which must be carefully observed. § 674. Hearing cause out of its order. Although it is a general rule that causes come on to be heard according as they stand on the calendar, yet they are sometimes heard out of their ordinary course. In some cases, a cause no- ticed for hearing will be advanced on an application to the court, on sufficient cause being shown. ^ § . 675. Postponement of hearing. An application for the extension of the time for hearing is 1 2 Daniell, Ch. PI. & Pr. (4th Ed.) 964; 1 Smith, Ch. Pr. 406; Hodges V. Wise, 16 Ala. 509. See Morris v. Taylor, 23 N. J. Eq. 131. The Eng- lish practice never obtained in Alabama. Hodges v. Wise, 16 Ala. 509. See Miller v. Tobin, 18 Fed. 616. 2 1 Barbour, Ch. Pr. 319; Hoyle v. Livesey, 1 Mer. 381; Clark v. Mar- field, 77 111. 258. (695) § 676 EQUITY PLEADING AND PRACTICE. [Ch. 35 addressed to the sound discretion of the court.^ Where causes are continued by consent, a much greater latitude will be al- lowed than where either party is pressing for trial; but even then the court is not bound to continue the cause, though it usu- ally does so.* A suit will not be delayed until the determina- tion of a suit at law which is for a different object.^ If the party filing a cross bill wishes to stay the cause on the original proceedings, he should give notice, and apply to the court for an order to that effect.® An order to stay proceedings in a cause, on the part of the complainant, until security for costs is filed, only operates on him, and does not prevent the defendant from taking any steps to resist an application by the complain- ant, or to get the cause out of court.'' An application for a con- tinuance, where the cause is set for hearing, is properly over- ruled where the affidavit shows no diligence in preparing for the hearing.® § 676. Private hearing. Causes are not always heard in public. Wherever there are valid objections to a public hearing, the cause may be heard privately.^ Statutes or rules in some jurisdictions provide that causes shall be heard publicly. 3Reece v. Darby, 5 111. 159; Dudley y. Witter, 46 Ala. 664, 51 Ala. 456; Robbins v. Hanbury, 37 Pla. 468, 19 So. 886; Hahn v. Huber, 83 111. 243. * Berger v. Harrison, 1 Overt. (Tenn.) 483. Upon an application for further time to take additional testimony upon the subject-matter of the amendments to a bill, and answer made with leave at the hear- ing, the showing must point out what facts are expected to be proved, so that the court may determine on their relevancy and importance. Slater v. Breese, 36 Mich. 77. 5 Carlisle v. Cooper, 18 N. J. Eq. 241. 6 Williams v. Carle, 10 N. J. Eq. 543. See White v. Buloid, 2 Paige (N. Y.) 164. 7 Price V. Betts, 6 Paige (N. Y.) 44. See Champlin v. Petrie, 4 Wend. (N. Y.) 209. 8 Hahn v. Huber, 83 111. 243. s>l Barbour, Ch. Pr. 319, Lord Bldon, in Re Portsmouth, Coop. 106, before going into a private room to hear a cause, according to appoint- (696) Ch. 35] HEARING. § 677 § 677. Hearing on bill and answer. If the complainant deems the answer, or regards the affirma- tive defense of the answer, as insufficient to constitute any bar to his relief, he may set the cause down for hearing on bill and answer.^" The answer must be taken as true in all points.^^ The allegations of fact in the bill that are denied in the answer are to be taken as disproved, and the averments of fact in the answer stand admitted. -^^ 0^1.7 the truth of the facts set out in the answer, and not matters of opinion and legal conclusions, are admitted.-'^ OSTo other evidence is permitted to be read, except it be matters of record to which the answer refers, and which are provable by the record itself, or documents which may be proved viva voce at the hearing.-^* The answer is taken to be true, whether responsive or in avoidance, and whether an oath is waived or not.-^^ If the answer clearly and unequivocally denies all the material allegations of the bill, or sets up suffi- ment, desired that it might be understood that it was the uniform prac- tice in chancery, as long as the court had existed, in case of family disputes, on the application of counsel on both sides, to hear the same in the chancellor's private room. It seems, however, that consent of both parties is not necessary to a private hearing. 1 Barbour, Ch. Pr. 319; Ogle v. Brandling, 2 Russ. & M. 688. 10 1 Barbour, Ch. Pr. 318; Ruhlig v. Wiegert, 49 Mich. 399, 13 N. W. 791; Contee v. Dawson, 2 Bland (Md.) 264; Huyck v. Bailey, 100 Mich. 223, 58 N. W. 1002; Gaskill v. Sine, 13 N. J. Bq. 130; Doolittle v. Gookin, 10 Vt. 265; Lampley v. Weed, 27 Ala. 621; Floyd v. Floyd, 77 Ala. 353; Fenno v. Sayre, 3 Ala. 458. 11 Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217; Mason v. McGirr, 28 111. 322; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761; Mar- tin V. Reese (Tenn. Ch. App.) 57 S. W. 419; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 409; Independent Medical College v. Zeigler, 86 111. App. 360; Roach v. Glos, 181 111. 440, 54 N. E. 1022. 12 Perkins v. Nichols, 11 Allen (Mass.) 542; United States v. Trans- Missouri Freight Ass'n, 19 U. S. App. 36, 58 Fed. 58; Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217; Tainter v. Clark, 5 Allen (Mass.) 66. 13 Contee v. Dawson, 2 Bland (Md.) 264. 1*1 Barbour, Ch. Pr. 318; Gibson, Suit in Ch. § 459; Milligan v. Wissman (Tenn. Ch. App.) 42 S. W. 811. isHardwick v. Bassett, 25 Mich. 151; Ruhlig v. Wiegert, 49 Mich. 400, 13 N. W. 791; Martin v. Reese (Tenn. Ch. App.) 57 S. W. 419. (697) § 679 EQUITY PLEADING AND PRACTICE. [Ch. 35 cient new matter in avoidance, the Mil should be dismissed.^® If any material matter charged in the bill is neither denied nor admitted by the answer, it stands for naught.-^ "^ If the com- plainant goes to hearing on bill and answer, and the court shall not see fit to make a decree thereupon for want of sufficient mat- ter confessed by the answer, the bill will be dismissed, with costs.-'® It is said that, where a case has been brought on for hearing upon bill and answer, and the complainant fails to make out his case for want of a full admission of it by the an- swer, the court will permit him to reply on payment of costs.-' ^ § 678. Hearing upon bill taken pro eonfesso. Where the bill is taken pro eonfesso, the cause must be brought to a hearing, as well as in other cases ; and the court hears the pleadings, and itself pronounces the decree, and does not permit the complainant to take such a decree as he thinks will stand, as under the English practice it did in ordinary cases where the defendant made default at the hearing.^" The proceedings un- der a decree -pro eonfesso are the same as those under other de- crees made upon a hearing.^^ § 679. Hearing on bill and cross bill. One who files a cross bill must take steps to obtain an answer, 18 Cocke V. Minor, 25 Grat. (Va.) 246; Ruckersville Bank v. Hemp- hill, 7 Ga. 396; Barton v. International Fraternal Alliance of Baltimore City, 85 Md. 14, 36 Atl. 658. 17 Cro-we V. Wilson, 65 Md. 479, 5 Atl. 427, 57 Am. Rep. 343. There should be no fact admitted by the ans-wer inconsistent with the defend- ant's denial; no doubtful denial; no doubtful avoidance. Cocke v. Minor, 25 Grat. (Va.) 246, where an answer was held insufficient to warrant dismissal of the bill. 18 1 Barbour, Ch. Pr. 318; Scott v. Cook, 4 T. B. Mon. (Ky.) 280. 19 1 Barbour, Ch. Pr. 318; Barker v. Wyld, 1 Vern. 140. See Martin V. Reese (Tenn. Ch. App.) 57 S. W. 419, citing Gibson, Suit in Ch. § 440; Green v. Hicks, 1 Barb. Ch. (N. Y.) 318; 2 Daniell, Ch. PI. & Pr. (3d Ed.) 988, 999. 20 1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547. See supra, § 151 et seq., where this question is fully considered. See, also, post, § 705. 21 1 Barbour, Ch. Pr. 372. (698) Ch. 35J HEARING. § 681 make an issue, and have a hearing upon it when the original bill is heard. ^^ The original cause^ and cross cause are usually, though not necessarily, heard together. The cross cause may be heard first, if it involves a preliminary question, proper to be disposed of before proceeding to hear the original cause. ^^ § 680. Hearing of causes together. In cross suits, and also in other suits where there are two causes between the same parties involving the same point in dis- pute, and where it is material that both causes should be heard together, if both are set down for hearing, biit stand at a dis- tance from each other, the court may permit the caiise which stands last to be advanced, or that which stands first to be ad- journed, so that both may come on at the same time ; and like- wise, if it be necessary, the depositions taken in one cause to be read in the other, an order for that purpose having been pre- viously obtained.^* § 681. Objection for want of parties. The proper time for taking an objection for want of parties is upon opening the pleadings, and before the merits are dis- cussed; but it frequently happens that, after a case has been gone into and thoroughly heard, the court has felt itself com- pelled to let it stand over for the purpose of amendment. The 22 Reed v. Kemp, 16 111. 445. Where a cross bill has been filed, and a demurrer is put in thereto, and the latter might be properly sustained because the cross bill fails to present upon its face sufficient grounds for afiBrmative relief, it is not error for the court to proceed to a hear- ing of the original cause without regarding the cross bill, or disposing of the demurrer. Crabtree v. Levings, 53 111. 526. 23 Randolph's Appeal, 66 Pa. 178. See, also, 1 Harrison, Ch. Pr. 367; Hinde, Pr. 54; Sanders v. Sanders' Ex'r, 3 Bibb (Ky.) 286; Coleman V. Moore, 3 Litt. (Ky.) 355; Whyte v. Arthur, 17 N. J. Eq. 521. 2*1 Barbour, Ch. Pr. 320; Nevil v. Johnson, 2 Vern. 447; Wilford v. Beaseley, 3 Atk. 501. See, also. Tingling v. Hesson, 16i Md. 112; Ex parte Brown, 58 Ala. 536; Evans v. Evans, 23 N. J. Eq. 180; Beach v. Woodyard, 5 W. Va. 231; Linn v. Patten, 10 W. Va. 187; Preston v. National Exchange Bank of Baltimore, 97 Va. 222, 33 S. E. 546. See supra, § 665. (699) § 682 EQUITY PLEADING AND PRACTICE. [Ch. 35 objection for want of parties ought to proceed from the defend- ant, for it has been decided that the complainant, bringing his cause to a hearing without proper parties, cannot put it off with- out the consent of the defendant, though there are exceptions to this rule.^^ An objection at the hearing for want of a par- ticular party may be obviated by the complainant's waiving the relief he is entitled to against such party.^® Where the evident consequence of the establishment of the rights asserted by the bill might be the giving to the complainant of a claim against other persons, who are not parties to the suit, the complainant, by waiving that claim, may avoid the necessity of making those persons parties. This, however, cannot be done to the preju- dice of others.^'^ In some cases, the defect of parties has been cured at the hearing by the undertaking of the complainant to give full effect to the utmost rights which the absent party could have claimed ; those rights being such as could not affect the in- terest of the defendants.^* § 682. Ordering cause to stand over for new parties. If objection for want of proper parties is taken at the hear- ing, a reasonable time will be allowed the complainant, if the ob- jection prevails, to bring the proper parties before the court, un- less it appears that they were omitted fraudulently, or in bad faith.^® The English practice was to order the cause to stand over on paying the costs, in order to give the complainant an opportunity to make the proper parties.*" If the objection for 2= 1 Barbour, Ch. Pr. 320; Jones v. Jones, 3 Atk. Ill; Darwent v. Wal- ton, 2 Atk. 510; Innes v. Jackson, 16 Ves. 356. 28 1 Barbour, Ch. Pr. 320; Pawlet v. Bishop of Lincoln, 2 Atk. 296. i-! 1 Barbour, Ch. Pr. 321. 28 1 Barbour, Ch. Pr. 321; Harvey v. Cooke, 4 Russ. 35. See supra, §§ 56-59, 217, 218, 383, 389. 28 Van Epps v. Van Deusen, 4 Paige (N. Y.) 64; Green v. Poole, 5 Brown, Pari. Cas. 504; Court v. Jeffery, 1 Sim. & S. 105. See Stafford V. City of London, 1 P. Wms. 428; Rowland v. Garman, 1 J. J. Marsh. (Ky.) 76. 30 1 Barbour, Ch. Pr. 321; Anonymous, 2 Atk. 14; Jones v. Jones, 3 Atk. Ill; Gordon v. Holland, 38 N. C. 362; O'Brien v. Heeney, 2 Edw. (YOO) Ch. 35] HEARING. § 684 want of parties is distinctly taken by the defendant by plea, de- murrer, or answer, and the complainant, notwithstanding, goes to hearing without amending his bill by bringing in the neces- sary parties, the court, in its discretion, may refuse to permit the cause to stand over, and may dismiss the bill.^^ An order al- lowing a cause to stand over cannot be appealed from.^^ If the complainant, after such order, neglects to proceed thereunder, the bill may be dismissed for want of prosecution.^^ If, after the entry of such an order, the cause comes on for hearing again, an objection for want of parties, which might have been made in the first instance, is too late.^* Such an order will not be entered unless the complainant wiU be entitled to relief upon the case made by the bill on joining the proper parties.^^ § 683. Form of order that cause stand over to add new parties. [Title of court and cause.] This cause coming on to be lieard, and both parties being present in open court by their respective solicitors, and it appearing to the court that R. S. is a necessary party to this cause, and the court being fully advised in the premises, It is ordered that this cause do stand over, and that the complainant be at liberty to make the said R. S. a party, either by amendment or supplemental bill, as he may be advised. § 684. Ordering cause to stand over to supply proofs. Leave may be also given by the court at the hearing for the cause to stand over for the purpose of supplying defects in the testimony under special circumstances, as, for example, to en- Ch. (N. Y.) 242; Beardsley v. Knight, 10 Vt. 185, 33 Am. Dec. 193; Mc- Laughlin V. Van Kueren, 21 N. J. Eq. 379; Kempton v. Bartine, 60 N. J. Bq. 411, 44 Atl. 461; City of Wilmington v. Addicks (Del. Ch.) 43 Atl. 297; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427; Satterthwaite v. Marshall, 4 Del. Ch. 337. 31 1 Barbour, Ch. Pr. 320; Van Epps v. Van Deusen, 4 Paige (N. Y.) 64; Lord v. Underdunck, 1 Sandf. Ch. (N. Y.) 46. 32 Beresford v. Adair, 2 Cox, 156. 33 Mitchel V. Lowndes, 2 Cox, 15. 34 Jones V. Jones, 3 Atk. 217. 35 Mitchell V. Lenox, 1 Edw. Ch. (N. Y.) 428. (701) ^686 EQUITY PLEADING AND PRACTICE. [Ch. 35 able a party to procure an instrument to be stamped, without whieb it could not be received in evidence.^® This permission is, however, cautiously granted after publication of the testi- mony has passed, and is generally confined to proofs by docu- mentary evidence, or the execution of deeds and other papers, where the dangers attending such proofs are not so great.^^ i 685. Form of order for cause to stand over to supply proofs. [Title of court and cause.] This cause coming on to be heard this day, and counsel for both par- ties having been in part heard, and it appearing to the court that the complainant has omitted to introduce proof of the death of D. B., his intestate. It is ordered that this cause stand over, to the end that the com- plainant may examine witnesses to prove the death of such intestate. 5 686. Directing an action at law. Under the chancery practice, wherever the foundation of a ■claim was a legal demand, and the question whether a new trial should or should not be had could be discussed with more satis- faction in a court of law than in a court of equity, the latter •court would direct an action at law.^^ The court, in dismissing a complainant's bill, will sometimes do so without prejudice to his right to proceed at law.^^ It will also, where a complain- 36 1 Daniell, Ch. PI. & Pr. (6th Ed.) 858; 1 Barbour, Ch. Pr. 322 Huddleston v. Briscoe, 11 Ves. 595; Moons v. De Bernales, 1 Russ. 301 Wood v. Stane, 8 Price, 613; Cartwright v. Cartwright, 2 Dickens, 545 •Cox V. Allingham, Jac. 337; Desplaces v. Goris, 5 Paige (N. Y.) 252 Lewis V. Lanphere, 79 111. 187; Robbins v. Hanbury, 37 Fla. 468, 19 So. -886. 3T Robbins v. Hanbury, 37 Fla. 468, 19 So. 886. See Cox v. Alling- ham, 1 Jac. 337. See, for reviewing chancellor's refusal to order cause to stand over, Robbins v. Hanbury, 37 Fla. 468, 19 So. 886. 38 Fisher v. Carroll, 46 N. C. 27; 1 Barbour, Ch. Pr. 465; Decker v. Caskey, 1 N. J. Bq. 427; 2 Smith, Ch. Pr. 90 et seq.; Delaware, L. & W. R. Co. V. Breckenridge, 56 N. J. Eq. 595, 40 Atl. 23; American Dock .& Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 266; Hope V. Hope, 10 Beav. 581. 39 1 Barbour, Ch. Pr. 465; Mortlock v. Buller, 10 Ves. 292; McNamara V. Arthur, 2 Ball & B. 349. (Y02) €h. 35] HEARING. § 686 ant's right to equitable relief depends upon a legal title, retain the bill for a certain period, giving the complainant liberty in the meantime to bring an action for the purpose of establishing his right at law, in order to found the equitable relief.*" Such ■cases are those in which it is necessary for the complainant to establish his right at law in order to found the equitable relief. The practice cannot be made use of to enable the complainant first to try whether he has any claim at law, and then, if he fails ihere, to come into a court of chancery to try to raise an equity.*^ An action is ordered to be tried in a coiirt of law when the ^equity is based on a disputed legal right, or where the defense ■set up involves a legal right.* ^ An order granting leave to bring •an action at law on an injunction bond taken in a court of chan- cery may be rescinded, if the equities of the parties were not rconsidered at the time of its allowance.*^ Where the bill is re- tained, with liberty to bring an action at law within a limited .time, unless such action is so brought, the bill will be dis- anissed.** The court directs the action to be brought in such a form that the result shall be regarded as conclusive.*^ It will •also provide for a satisfactory trial, by restraining the parties -from setting up any legal obstacles to the fair trial of the case, ■such as outstanding terms, the statute of limitations, or bank- ruptcy. It will order the parties to make such admissions as •are necessary to bring the matter in dispute properly before the ■court, and will give the same directions as to the examination of the parties, the reading of depositions, and the production of ■documents as are given upon directing issues.*® As the action *ol Barbour, Ch. Pr. 465; Seton, Decrees, 356; Sellman v. Bo-wen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524. See, also. Brown v. Cranberry ■Iron & Coal Co., 25 U. S. App. 692, 72 Fed. 103. « 1 Barbour, Ch. Pr. 465 ; Walton v. Law, 6 Ves. 150. See American Dock & Improvement Co. v. Trustees for Support of Public Schools, 36 N. J. Eq. 16. 42 Fisher v. Carroll, 46 N. C. 27. 43 Easton V. 'New York & L. B. R. Co., 30 N. J. Eg. 236. 44 1 Barbour, Ch. Pr. 465. 45 Bootle V. Blimdell, 19 Ves. 500. •46 1 Barbour, Ch. Pr. 466; Pemberton v. Pemberton, 13 Ves. 298; (703) § 686 EQUITY PLEADING AND PRACTICE. [Ch. 35 can only be between the parties who are interested in the legal estate, the court, for the protection of those who are equitably interested, will order that they be at liberty to attend the trial by counsel, to make such defense as they may be advised.*^ If an abatement occurs before the trial of the action, by the death of any of the defendants who were at liberty to attend the trial, the suit should be revived before the trial takes place. It is otherwise where an abatement occurs by the death of a de- fendant having no such liberty.*® The action is tried in the usual manner. A new trial must be moved for in the court in which the action is brought. This rule applies even to cases where the court has given special directions with regard to the trial.^^ If a new trial is not moved for, or if a new trial is had, after the verdict thereon, the cause should be set down for further directions. In the meantime, no proceedings should be taken at law, in consequence of the verdict, except moving for a new trial, without the sanction of the court. The hearing up- on further directions is not the time when any mistake com- mitted at the trial at law can be rectified. Therefore, where, upon further directions, the complainant applied to have the damages given by the verdict at law increased, on the sugges- tion that interest was omitted to be given, through a mistaken supposition that it would be given in equity, the court refused to interfere with the verdict.^" If, in the course of such ac- tion, the mode is misconceived, application should be made to Stevens v. Praed, 2 Ves. Jr. 519; Fisher v. Carroll, 46 N. C. 27. See, also, for special directions by the court for a trial of an action at law, Marsh v. Sibbald, 2 Ves. & B. 375; Hylton v. Morgan, 6 Ves. 293; Aston V. Exeter, 6 Ves. 288; Anonymous, 1 Ch. Cas. 267; Bayley v. Morris, 4 Ves. 788. See supra, § 626. *7 1 Barbour, Ch. Pr. 467; Buxton v. Sidebotham, 2 Ves. Jr. 521, note. 48 1 Barbour, Ch. Pr. 467; Humphreys v. Mollis, Jae. 73. 48 1 Barbour, Ch. Pr. 467; Apthorp v. Comstock, 2 Paige (N. Y.) 482; Fowkes V. Chadd, 2 Dickens, 576; Bx parte Kensington, Coop. 96. See, also, Fisher v. Carroll, 46 N. C. 27; Raid v. Barnhart, 54 N. C. 142. 50 2 Smith, Ch. Pr. 92; 1 Barbour, Ch. Pr. 467; Stevens v. Praed, 2 Ves. Jr. 519. (704) Ch. 35] HEARING. § 689 the court directing the trial to enable it to do justice.'-^ TKe consideration of costs of tlie action at law is generally reserved by the order directing or permitting the action till the can^e comes on for further directions. In general, however, costs fol- low the verdict.®^ A motion that a nonresident complainant give security for costs should be made in the court directing the trial.®* i 687. Interlocutory orders. On a final hearing, all previous decretal orders are before the court, and may be modified, altered, or vacated, as justice may require.''* § 688. Objections at the hearing. Irregularities of form in proceedings in equity, and in tak- ing of evidence thereon, should be seasonably objected to, or they will be considered as waived.®' When the cause is heard without objection by either party, all steps not taken by either which the other had a right to insist upon for the orderly bring- ing the cause to a hearing must be considered as waived.®® § 689. Course of proceedings on the hearing. Upon the hearing, the complainant's bill is first read, or the substance of it stated. The answer of the defendant is then so read or stated. Thereupon, the complainant makes a state- ment of his case, and the defendant makes a statement of his. Under the English chancery practice, depositions were then 51 Holworthy v. Mortlock, 1 Cox, 141. 52 1 Barbour, Ch. Pr. 468; Stevens v. Praed, 2 Ves. Jr. 519. 53Desprez v. Mitchell, 5 Madd. 87. 54 Gibson v. Rees, 50 111. 383; Fourniquet v. Perkins, 16 How. (TJ. S.) 82. 65 Hart V. Small, 4 Paige (N. Y.) 288; Van Namee v. Groot, 40 Vt 74; Mobley v. Leophart, 51 Ala. 587. 56 Allen v. City of New York, 18 Blatchf. 239, 7 Fed. 483 ; McBlwain V. Willis, 3 Paige (N. Y.) 505. (705) Equity. — 45. § 690 EQUITY PLEADING AND PRACTICE. [Ch. 35 read. In jurisdictions where oral evidence is permitted upon the trial, the parties proceed with the introduction of such evi- dence. The complainant first introduces his evidence, then the defendant introduces his, after which the complainant may offer evidence rebutting that of the defendant. Argument of j30unsel is then had, first, by the solicitor for the complainant, who is followed by the solicitor for the defendant, the case being .concluded by argument of the complainant's counsel, after which the court either renders a decision or takes the ease under ad- ■yisement.^'^ The court is not bound by the opinion of counsel •concerning the theory of the bill, but will look at the case made by it f^ and it should notice any point presenting an important hearing on the case, even though such point is not urged by the .counsel in the cause.®^ It was said in Vermont that, though .every case should be fully heard in the court, yet the chancellor may, where a case is one of great doubt, make a merely formal decree without hearing, with a view of saving needless expense to the parties, in case the court of review should be of opinion that the complainant cannot prevail.®" § 690. Reception of evidence on the hearing. Under the English chancery practice, no evidence is permit- ted to be read other than the proofs taken prior to the hearing, except it be matters of record, to which the answer refers, and which are provable by the record itself, or documents which may be proved viva voce at the hearing.®^ It seems that, to author- 67 2 Daniell, Ch. PI. & Pr. (4th Ed.) 980; Gibson, Suit in Ch. § 524. 58 Geney v. Maynard, 44 Mich. 578, 7 N. W. 173. 59 Lyon V. Tallmadge, 14 Johns. (N. Y.) 501. 80 Hyndman v. Hyndman, 19 Vt. 9, 46 Am. Dec. 171. 81 1 Barbour, Ch. Pr. 318. See, also. Potter v. Wilson, 2 Fish. Pat. Cas. 102, Fed. Cas. No. 11,342; De Butts v. Bacon, 1 Cranch, C. C. 569, Fed. Cas. No. 3,717; Mclntyre v. Ledyard, Smedes & M. Ch. (Miss.) 91. Ex- hibits, deeds, and other writings relating to a cause in chancery may be produced and proved viva voce on the hearing, where the party using them has omitted to establish their genuineness before the officer tak- ing the proofs. With this exception, the testimony in contested chan- cery causes is in writing, consisting of depositions and documentary evi- (706) Ch. 35] HEARING. § 691 ize the proof of exhibits by testimony given viva voce, there must have been an order of the court for that purpose, ajid notice to the adverse party of the intention to introduce such evidence.®^ Evidence taken on a preliminary matter, especially before issue joined, cannot be read on final hearing, except by order of court.** The affidavits to the bill and ansvsrer are not evidence at the final hearing.** § 691. Hearing additional evidence. Under the English orders in chancery it was provided that no witness would be examined after publication, except by con- sent or by special order.*® The power to open a case after the hearing is not encouraged by the court.** The matter, however, rests largely in the discretion of the chancellor, who may re- open a ease where some additional fact or inquiry is indispen- sable to enable him to make a satisfactory decree.*^ And a re- dence. Holdridge v. Bailey, 5 111. 124; Poupet v. Windsor, 2 Ves. Sr. 472; Turner v. Burleigh, 17 Ves. 355; Barrow v. Rhinelander, 1 Johns. Ch. (N. Y.) 550; 2 Fonblanque, Eq. 467. 62 1 Smith, Ch. Pr. 414; Chandler's Bx'x v. Hill, 2 Hen. & M. (Va.) 124; Emerson v. Berkley, 4 Hen. & M. (Va.) 441. See Pardee v. De Cala, 7 Paige (N. Y.) 132; Miller v. Avery, 2 Barb. Ch. (N. Y.) 582; Kel- logg V. Wood, 4 Paige (N. Y.) 578; Consequa v. Fanning, 2 Johns. Ch. (N. Y.) 481; CoBhy's Heirs v. Wlckliffe, 7 B. Mon. (Ky.) 120; Barrow V. Rhinelander, 1 Johns. Ch. (N. Y.) 550. There is no error in admit- ting evidence already taken, to be read in evidence on the hearing, against one made a party after it was taken, though it would be error to deny the new party the privilege of cross-examining the witnesses. Kingman v. Higgins, 100 111. 319. In Illinois no notice is required to take evidence in open court on the hearing. Mason v. Bair, 33 111. 194. 63 Warner v. Warner, 31 N. J. Eq. 225; Underbill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 355; Holcombe v. Holcombe's Ex'rs, 10 N. J. Eq. 284. 6* Attorney General v. Steward, 21 N. J. Bq. 340. 65 Wood V. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953, where the Eng- lish practice was exhaustively considered by Mr. Justice Story, and the exceptions stated. 66 Dixon V. Higgins, 82 Ala. 284, 2 So. 289. 6T Wood V. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Dixon v. Higgins, 82 Ala. 284, 2 So. 289; Hughes v. Fades, 1 Hare, 486; Hood v. Primm, 4 Sim. 101; Attorney General v. Severne, 1 Colly. 317; Mulock v. Mulock, (707) § 691 EQUITY PLEADING AND PRACTICE. [Ch. 35 fusal to open a decree after evidence closed, argument heard, and report made, in order that the defendants may have an 28 N. J. Bq. 15; McKell v. Collins Colliery Co., 46 W. Va. 625, 33 S. E. 765; Shea's Appeal, 121 Pa. 302, 15 Atl. 629; Trustees of German Lu- theran Evangelical St. Matthew's Congregation v. Heise, 44 Md. 453; Hall V. Pegram, 85 Ala. 522, 5 So. 209; Carter v. Edmonds, 80 Va. 58. In Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953, Mr. Justice Story said: "This rule is at least as old as the time of Lord Bacon, among whose Ordinances in Chancery we find the following: 'No witnesses shall be examined after publication, except by consent, or by special order ad informandum conscientiam judicis; and then to be brought close sealed up to the court to peruse or publish, as the court shall think good.' The true exposition of the latter qualification of this rule would seem to be that the new evidence to inform the conscience of the judge should not be taken but upon or after the hear- ing, when the judge himself entertains a doubt, or when some additional fact or inquiry is indispensable to enable him to make a satisfactory decree. So was the doctrine held in Newland v. Horseman (2 Ch. Cas. 74) ; and it is strongly fortified by what fell from Lord Manners in Savage v. Carroll (2 Ball & B. 444), and by the master of the rolls in Parken v. Whitby (1 Turn. & R. 366). Except for such purposes, and under some special order of the court itself at or after the hearing, no such testimony, taken after publication, is now deemed admissible, at least unless under extraordinary circumstances, under the rules. The practice of taking such testimony before the hearing, and keep- ing it sealed up to be used by the court at the hearing, if it should be deemed meet, is said by the text writers to have fallen into disuse, and not to have been in practice for more than a century. • * • Ex- ceptions, however, have been admitted to the general rule. • • • The first class of exceptions is that of the examination of witnesses to the mere credit of the other witnesses, whose depositions have been already taken in the cause. This is the ordinary practice, and is done upon articles or objections filed. Beames, Order Ch. p. 32, § 72; Id. p. 187, § 80. But then, in these cases, the general interrogatory only, whether he (the proposed witness) would believe the other on his oath, which is the usual form of putting the interrogatory in England, and differs widely from that in which it is usually put in America (see 1 Starkie, Ev. [2d London Ed., 1833] 182; Watmore v. Dickinson, 2 Ves. t B. 267, 268; Carlos v. Brook, 10 Ves. 50), is that upon which the new examination is allowed, unless under very special circumstances. And there is this close limitation upon such special circumstances: that the interrogatory shall not be to any facts put in issue in the suit, but only to such facts as merely touch the credit of the witness. This doctrine was expounded very fully by Lord Bldon in Purcell v. Mc- Namara (8 Ves. 324, 326), Wood v. Hammerton (9 Ves. 145), Carlos v. Brook (10 Ves. 50), and White v. Fussell (1 Ves. & B. 153), and it was (708) Ch. 35] HEARING. § 691 opportunity to prove matters wMch they kad the means and opportunity of proving at the time of the hearing, will not be disturbed.®* recognized and acted upon by Mr. Chancellor Kent in Troup v. Sher- wood (3 Johns. Ch. [N. Y.] 558), where he critically examined the leading authorities. But what is most important in its bearing on the present case is the absolute refusal of the court in these cases to allow the witness to be contradicted as to any fact which he had sworn, touching the merits of the matters in issue between the parties. 'If,' said Lord Eldon, in Purcell v. McNamara, 'for instance, the fact Is material to the merits of the case, and the witness has sworn to it, there Is great danger of bringing other witnesses, under color of dis- crediting that witness, to prove or disprove such fact.' See Gilbert, Forum Rom. 147; Smith v. Turner, 3 P. Wms. 413. Another class of exceptions is where the application is made to enlarge the time for pub- lication, or, more frequently, to enlarge the time for taking the tes- timony after publication has been in form, though not in fact, made according to the rules of the court. To such applications, whenever they will cause any delay in the cause, the court does not listen with- out some good cause shown upon affidavit, such as surprise, accident, or other circumstances which repel any imputation of laches. See Gilbert, Forum Rom. 124; 1 Harrison, Ch. Pr. (by Newland) c. 43, pp. 285, 287. See, also, Watmore v. Dickinson, 2 Ves. & B. 267, 268; Cut- ler V. Cremer, 6 Madd. 254. And in all cases of this sort, before the ap- plication is allowed, the party and his clerk in court and solicitor are required to make oath 'that they have neither seen, heard, read, nor been informed of any of the contents of the depositions taken in that cause, nor will they see, hear, read, or be informed of the same till publication is duly passed in the cause.' Gilbert, Forum Rom. 146. See, also, Anonymous, 1 Vern. 253; Hinde, Pr. 384, 385. And this affi- davit is so important that the court will never dispense with it except in a case of fraud practiced by the other party to evade the rule; as was the case in a memorable Instance in Lord Somers' time, stated by Chief Baron Gilbert (Gilbert, Forum Rom. 146). Lord Eldon, in commenting on the affidavit, and the strictness of the rule requiring it, said: "That it Is founded upon this: that no more dangerous mode of proceeding can take place than permitting parties to make out evi- dence by piecemeal, and to make up the deficiency of original deposi- tions by other evidence.' Whitelock v. Baker, 13 Ves. 512. * * • Mr. Chancellor Kent, in Hamersly v. Lambert (2 Johns. Ch. [N. Y.] 68 Shea's Appeal, 121 Pa. 302, 15 Atl. 629. See, also. Witters v. Sowles, 31 Fed. 5; Hood v. Primm, 4 Sim. 101. See, also, for supplemental evi- dence in equity and re-examination of witnesses, 3 Greenleaf, Ev. §§ 345, 346. (709) §692 EQUITY PLEADING AND PRACTICE. [Ch. 35 § 692. Argument of counsel. It is a general rule that the party holding the affirmative has 432), reviewed the authorities, and sustained the doctrine, as above stated, with all the weight of his own great opinion. Another class of exceptions is the proof of exhibits in the cause, after publication, and even viva voce at the hearing, where there has been an omission of the proof in due season, and they are applicable to the merits. Gil- bert, in his Forum Romanum (page 183), takes notice of this practice, and says: 'Upon this rehearing, any exhibit may be proved viva voce, as upon the original hearing; but no proof can be offered of any new matter without special leave of the court, which is seldom granted.' The like doctrine is fully supported in many cases. See Wright v. Pill- ing, Finch, Free. Ch. 496; Dashwood v. Bulkeley, 10 Ves. 238; Buck- master V. Harrop, 13 Ves. 458; White v. Fussell, 1 Ves. & B. 153; HIggins V. Mills, 5 Russ. 287; Wyld v. Ward, 2 Younge & J. 384; Wil- liams V. Goodchild, 2 Russ. 91; Dale v. Roosevelt, 6 Johns. Ch. (N. Y.) 256. Another class of exceptions is where depositions have been sup- pressed from the interrogatories being leading, or for irregularity, or where it has been discovered that a proper release has not been given to make a witness competent. In every such case, from the obvious necessity, and in furtherance of justice, fresh interrogatories and a re- examination have been permitted. Arundel v. Pitt, Amb. 585; Perry V. Sylvester, Jac. 83; Curre v. Bowyer, 3 Swanst. 357; Sandford v. Paul, 3 Brown Ch. 370, 1 Ves. Jr. 398, 2 Dickens, 750; Spence v. Allen, Finch, Prec. Ch. 493; Shaw v. Lindsey, 15 Ves. 380; Cox v. AUingham, Jac. 337, 341, 343; Callow v. Mince, 2 Vern. 472. In the case of Sandford V. Paul (2 Dickens, 750, 3 Brown Ch. 370, and 1 Ves. Jr. 398) it ap- pears from Mr. Dickens' Reports that the subject was a good deal ex- amined, and many authorities are cited by the reporter to show that the strictness of the rule had been relaxed in special cases of this na- ture. * * * I have thus gone over the principal cases (with an exception, which will presently appear) which seem to me to be ap- plicable to the more general question before the court. The result has been already incidentally suggested. But I will give it in a more di- rect and positive form. It is that there is no universal and absolute rule which prohibits the court from allowing the introduction of newly- discovered evidence of witnesses to facts in issue in the cause, after publication and knowledge of the former testimony, and even after the hearing. But the allowance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be indispensable to the merits and justice of the cause." Mr. Justice Story, in coming to the above conclusion, cited the following cases: Whitelock v. Baker, 13 Ves. 511; Cann v. Cann, 1 P. Wms. 727; Hamer- sly V. Lambert, 2 Johns. Ch. (N. Y.) 432; Milner v. Harewood, 17 Ves. (710) Ch. 35] HEARING. § 692 the right to open and close.** Upon the hearing on a bill, cross bill, answers, and depositions, where each party has material allegations to sustain, the complainant in the original bill is en- titled to the opening and closed** Where there are two defend- ants who set up adverse claims, the course of practice is for the complainant to open, for the defendant who sets up a claim against the other defendant then to go on, and for the other de- fendant to answer, and there is no reply between the defendants unless specially directed by the court. '^^ Upon a plea or demur- rer, the defendant holds the affirmative, and opens the argument, and, upon appeal, the opening argument of the appellant's coun- sel is first heard. Where a cause is heard upon exceptions to a 148; Willan v. Willan, 19 Ves. 591; Smith v. Turner, 3 P. Wms. 413; Ward V. Byles, Mos. 377; City of London v. Dorset, 1 Ch. Cas. 228; Bank V. Farques, Amb. 145; Blake v. Foster, 2 Ball & B. 457; Clarke v. Jen- nings, 1 Anstr. 173; "Williamson v. Hutton, 9 Price, 194; Cox v. Ailing- ham, Jac. 337; Ord v. Noel, 6 Madd. 127; Bingham v. Dawson, Jac. 243; Coley V. Coley, 2 Younge & J. 44; Partridge v. Usborne, 5 Russ. 249; Young V. Keighly, 16 Ves. 348; Norris v. Le Neve, 3 Atk. 35; Patterson V. Slaughter, Amb. 292; Gould v. Tancred, 2 Atk. 533; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Jones v. Purefoy, 1 Vern. 45; Res- pass V. McClanahan, Hardin (Ky.) 350; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Taylor v. Sharp, 3 P. Wms. 371; Bowles v. South, Hardin (Ky.) 460; Head v. Head's Adm'rs, 3 A. K. Marsh (Ky.) 121; Randolph's Ex'r v. Randolph's Ex'rs, 1 Hen. & M. (Va.) 180. The con- clusion of Mr. Justice Story is discussed in Mulock v. Mulock, 28 N. J. Eq. 15. This case extensively considers this subject, and cites Newland V. Horseman, 2 Ch. Cas. 75; Needham v. Smith, 2 Vern. 463; City of London v. Dorset, 1 Ch. Cas. 228; Gregory v. Marychurch, 12 Beav. 275; Gilbert, Forum Rom. 180; 1 Harrison, Ch. Pr. 46; Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953. See, also, 3 Greenleaf, Bv. §§ 336, 345, 347. If the newly-discovered evidence is of a different kind and charac- ter from that adduced on the trial, it will not be liable to the objection that it is cumulative. Mulock v. Mulock, 28 N. J. Eq. 15; Guyot v. Butts, 4 Wend. (N. Y.) 579; Gardner v. Mitchell, 6 Pick. (Mass.) 114; Watts V. Howard, 7 Mete. (Mass.) 478. 89 Guerry v. Perryman, 6 Ga. 119; Vancleave v. Beam, 2 Dana (Ky.) 155. 70 Murphy v. Stults, 1 N. J. Eq. 560; Guerry v. Perryman, 6 Ga. 119. Ti 1 Barbour, Ch. Pr. 317, citing Walton v. Van Mater, Halst. Dig. (N. J.) 175. (711) § 693 EQUITY PLEADING AND PRACTICE. [Ch. 35 master's report, the party excepting opens the argument; but where both parties except, the complainant's counsel is first heard upon his exceptions, and then the defendant's counsel answers him, and opens the argument upon his own exceptions'^ Where the arguments have been finally closed, there can be no further argument unless the court should reach some point where they desire reargument, and request the same of the counsel, or, upon application, reopen the cause for further argument. ''* § 693. Dismissal on final hearing. Where a bill fails" to state a case proper for relief in equity, the court will dismiss it at the hearing, though no objection has been made in the pleadings.''* Where the complainant fails to make out his case, the court will dismiss the bill at the hearing. '^^ A bill will be dismissed where the evidence is too contradictory or uncertain to warrant a decree.'^® A bill will be dismissed on the ground of misjoinder or multifariousness on the hearing jnly where the court finds itself embarrassed thereby to such an extent as to prevent it from administering appropriate relief.''^'' Where a cause is by consent submitted for hearing on bill, an- swer, and replication, without proofs, and it appears on the face of the bill that there is no equity in it, the bill will be dis- missed.'^* If, on the hearing, it is discovered that the cause is not matured for hearing as to some of the defendants, against 72 1 Barbour, Ch. Pr. 318. 73 Lawrence v. Dana, 4 Clife. 1, Fed. Cas. No. 8,136. ti Salamone v. Keiley, 80 Va. 86; Green v. Massie, 21 Grat. (Va.) 356; Hudson V. Kline, 9 Grat. (Va.) 379; Chicago Public Stock Exchange V. McClaughry, 148 111. 372, 36 N. E. 88. 75Mounce v. Byars, 11 Ga. 180; Meux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274; Union Pac. Ry. Co. v. Harmon, 10 U. S. App. 653, 54 Fed. 29; Judd v. Seaver, 8 Paige (N. Y.) 548. 76 Field V. Oppenstein, 98 111. 68; Vermillion v. Bailey, 27 111. 230; Marvin v. Hampton, 18 Fla. 131. 77 Annin v. Annin, 24 N. J. Eq. 184. See Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139. 78 Winkler v. Winkler, 40 111. 179. See Reece v. Darby, 5 111. 159; Edwards v. Beaird, 1 111. 70. (712) Ch. 35] HEARING. § 694 whoin the complainant appears to have a claim in equity, the bill ought not to be dismissed on the merits, but only as to those against whom there is no equity. As to the others, it should be sent back for further proceedings, although the cause was set prematurely for hearing on the motion of the complainant.'^® i 694. Kode of dismissing bill on hearing. If a bill is dismissed on the hearing, on a mere defect of form of the pleadings, and not on the merits of the case, it should be dismissed without prejudice to the complainant to institute a new suit if he thinks proper to do so.*" Unless the dismissal is accompanied with such a direction, it may be pleaded in bar to a new suit.®^ When a case is prematurely submitted, the court may either set aside the submission or dismiss the bill without prejudice. It should not dismiss the bill on the merits.*^ A decree dismissing a bill without prejudice does not operate as a bar to a new suit, which the party might insti- tute, nor does it debar the defendant of any defense he may be entitled to make, to the new suit, and it confers no right or ad- vantage on the complainant, and it will not have the effect of excepting, from the time prescribed by the statute of limita- tions, the time during which that suit was pending.®^ It is said that a bill will not be dismissed without prejudice where, from the pleadings and proofs, there is not much probability that the complainant could derive any benefit from further litigation.** On dismissing a bill permission to sue again 7»Key V. Hord, 4 Munf. (Va.) 485. See Cutter v. Thompson, 51 111. 531. so 1 Barbour, Ch. Pr. 323; Crosier v. Acer, 7 Paige (N. Y.) 137; Cobb V. Baker, 95 Me. 89, 49 Atl. 425; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886. 81 1 Barbour, Ch. Pr. 323; Mitford, Eq. PI. 237. 82 Moore v. Hurrah, 40 Ala. 573 ; Bank of Kentucky v. Milton, 12 B. Hon. (Ky.) 340; Wright v. May, 40 Ala. 550. 83 Nevitt V. Bacon, 32 Miss. 212, 66 Am. Dec. 609. 84 Anthony v. Peay, 18 Ark. 29. See Doggett v. Lane, 12 Mo. 215, hold- ing it to be discretionary with the court to either dismiss it without prejudice, or render a final decree. (713) §694 EQUITY PLEADING AND PRACTICE. [Ch. 35 is properly denied where the amount involved is trifling, and there is a legal remedy.*' Where a full hearing has been had, a cause should not be dismissed without prejudice, against the wishes of both parties.*® It is of great importance, where a bill is dismissed on the hearing, without prejudice, to bring a suit at law to have the same appear in the decree. The pre- sumption is, where a bill is dismissed upon the hearing, that there was a final determination of the cause, and therefore that no new action can be brought.*^ 85 Gamble v. East Saginaw, 43 Mich. 367, 5 N. W. 416. See, also, on this subject. Hurt v. Jones, 75 Va. 341; Evans v. Wells, 7 Humph. (Tenn.) 559; Thruston v. Masterson, 4 Dana (Ky.) 126; Bobbins v. Hanbury, 37 Fla. 468, 19 So. 886. 88 Lake St. Elevated R. Co. v. Ziegler, 99 Fed. 114. sTFoote V. Gibbs, 1 Gray (Mass.) 413; Durant v. Essex Co., 7 Wall. (U. S.) 107; Garrick v. Chamberlain, 97 111. 623; Bigelow v. Wlnsor, 1 Gray (Mass.) 299; Perine v. Dunn, 4 Johns. Ch. (N. Y.) 140; Williams V. HoUingsworth, 5 Lea (Tenn.) 358; Taylor v. Yarbrough, 13 Grat. (Va.) 183; Da Costa v. Dibble, 40 Fla. 418, 24 So. 911; Martin v. Evans, 85 Md. 8, 36 Atl. 258; Lyon v. Perin & Gaff Mfg. Co., 125 U. S. 698; Ed- gar V. Buck, 65 Mich. 356, 32 N. W. 644; Phillips v. Wormley, 58 Miss. 398. The direction that a bill be dismissed without prejudice will be inserted where it is dismissed in consequence of facts not having been properly put in issue, or where the agreement for the specific per- formance of which the bill was filed turns out, upon the evidence, to be different from that actually proved, or where it appears clear that the complainant in a bill for specific performance is entitled to com- pensation, although he is precluded by the form of his bill from insist- ing upon it. 1 Barbour, Ch. Pr. 324; Stevens v. Guppy, 3 Russ. 171; McNeil V. Cahill, 2 Bligh, 263; Woolam v. Hearn, 7 Ves. 211; Lindsay V. Lynch, 2 Schoales & L. 1. In general, when a bill is ordered to be dismissed upon a contingency, then the rule is that such orders are not conclusive unless the words "without further order" are added, and that, where such words are omitted, the defendant must apply for and obtain an absolute order of dismissal. 1 Barbour, Ch. Pr. 324; Stevens v. Praed, 2 Cox, 376. In this respect, however, the rule acted upon where an order is made for a case to stand over for a limited time, with liberty to the complainant to add parties, and, in default thereof, that the bill should stand dismissed with costs, is different, for it seems, in such cases, the bill is actually out of court without further order because the defendant has it not in his power to set it down again in a fit state to be heard, as he is not the person to add the parties. 1 Barbour, Ch. Pr. 324. See supra, §§ 577, 579. (714) Ch. 35] HEARING. § 697 S 695. Form of order dismissing bill on hearing. [Title of court and cause.] This cause coming on to be heard upon the bill of complaint herein, the answer of the defendant thereto, and the replication of the com- plainant to such answer, and the depositions taken in the said cause, and oral evidence introduced in open court, and the arguments of so- licitors for the complainant and defendant, upon due consideration of the pleadings and the evidence and such arguments, and the court being fully advised in the premises. It is ordered, adjudged, and decreed that this suit be and the same Is hereby dismissed out of court for want of equity [or, if without prejudice, "without prejudice"], with costs to the defendant to be taxed. § 696. Beopening cause after hearing. After the cause is heard, and before a decree is rendered, it is discretionary with the court whether or not it will reopen the cause and allow new evidence to he introduced, or the case to be reargued.*® After the cause has been heard, neither party has a right to file any paper in the cause except by leave of court.*^ The application to put in newly-discovered evidence should show that the party could not, with reasonable diligence, have obtained such evidence prior to the hearing.^" § 697. Betaining bill with liberty to bring an action. The court in some cases will, notwithstanding it dismisses the bill, reserve to the complainant the right to bring an action at law, and will sometimes, instead of making a decree for im- mediate dismissal, direct that the cause be retained for a specific time, with liberty to the complainant, in the mean- 88 Wood V. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Gainty v. Rus- sell, 40 Conn. 450; Sharp v. Wyckoff, 39 N. J. Eq. 95; Washburn & Moen Mfg. Co. V. Chicago Galvanized Wire Fence Co., 119 111. 30, 6 N. E. 191; Planters Bank of State of Mississippi v. Courtney, Smedes & M. Ch. (Miss.) 40. See supra, § 691. 8» Union Sugar Refinery v. Matthiesson, 3 Cliff. 146, Fed. Cas. No. 14,398. 80 Hitchcock v. Tremaine, 9 Blatchf. 550, Fed. Cas. No. 6,540. See, relative to introducing evidence after hearing, Lake Shore & M. S. R. Co. V. McMillan, 84 111. 208. See supra, § 691, and note 67. (715) §698 EQUITY PLEADINa AND PRACTICE. [Ch. 35 time, to proceed at law, as he shall be advised. The decree in such cases directs that, if the complainant shall not proceed at law and go to trial within the time limited, the bill is from thenceforth to stand dismissed, with costs ; but if he shall do so, the court reserves the consideration of costs and further direc- tions until a future time.*^ The court retains a bill with lib- erty to proceed at law in cases where it is necessary for the com- plainant to establish his right at law in order to found the equi- table relief. The practice cannot be used to enable the com- plainant to try whether he has any claim at law, and, if he fails there, to come into equity to try to raise an equity.®* In de- crees of this description, under the later practice, further direc- tions were only reserved in the event of a trial taking place, and, where default was made in bringing the action, the bill was not out of court unless the decree expressly directed that, upon default, the bill was to stand dismissed "without further order. "®^ i 698. Form of order retaining bill, with liberty to bring an action at law. [Title of court and cause.] This cause having been brought to a hearing upon the pleadings and proofs therein, and having been argued by W. 0. N., of counsel for the complainant, and by J. E., of counsel for the defendant. It is ordered, adjudged, and decreed, and this court, by virtue of the power and authority thereof, doth order, adjudge, and decree, that the bill in this cause be retained for twelve months, with liberty to the complainant, in the meantime, to proceed at law touching the mat- ters in question in this cause, as he shall be advised. And it is further ordered, adjudged, and decreed that, if the com- plainant shall commence an action at law and proceed to the trial 81 1 Barbour, Ch. Pr. 324; Brown v. Cranberry Iron & Coal Co., 25 V. a. App. 692, 72 Fed. 103. See supra, § 686. 82 1 Barbour, Ch. Pr. 325; Walton v. Law, 6 Ves. 150; Harmood v. Oglander, 6 Ves. 225. See, however, Leeds v. Corporation of New Rad- nor, 2 Brown Ch. 518. 93 1 Barbour, Ch. Pr. 325; Seton, Decrees, 357. See, on this subject, Decker v. Caskey, 1 N. J. Eq. 427; Baston v. New York & L. B. R. Co., 30 N. J. Eq. 236; American Dock & Improvement Co. v. Trustees for Support of Public Schools, 36 N. J. Eq. 16. (716) Ch. 35] HEARING. § 698 within tlie time specified, the court reserves the consideration of the costs of this suit, and of all further directions until after such trial shall he had; but in case the complainant shall not proceed at law and go to trial within the time aforesaid, his bill is from thenceforth to stand dismissed out of this court, with costs to be taxed. And in either case any of the parties are to be at liberty to apply to the court, as they shall be advised. (717) CHAFTEB XXXVI. DECREES. § 699. Definition and nature. A decree is the sentence or order of the court, corresponding to the judgment of a court of law, pronounced after the hear- ing or submission of the cause, by which the rights of the par- ties to the suit are determined and settled according to equity and good conscience.^ The term "decree" is not applicable to the interlocutory or- ders made for the furtherance of suits, but belongs to such adjudications as settle some right or liability pertaining to the substance of the controversy.^ The main division of de- crees is into interlocutory and final decrees. Decrees are also divided into consent decrees, decrees by default, decrees pro confesso, and decrees after hearing; such classification being dependent upon the condition of the cause, and the manner of the entry of the decree. § 700. Interlocutory and final decrees. An interlocutory decree is properly a decree pronounced for the purpose of ascertaining matter of law or fact, preparatory to a final decree.* A preliminary or interlocutory decree pro- vides for the investigation of questions which are material, either in determining any subsequent steps, or in deciding the 1 1 Barbour, Ch. Pr. 326. 2 Haines v. Haines, 35 Mich. 138. 3 1 Barbour, Ch. Pr. 326, 327; Adams, Eq. 375; Richmond v. Atwood, ?,2, Fed. 10, citing numerous authorities. See, also. Hays v. May's Heirs, 1 J. J. Marsh. (Ky.) 497; Ex parte Crittenden, 10 Ark. 333; Berryman v. Haden, 112 Ga. 752, 38 S. B. 53; Johnson v. Everett, 9 Paige (N. Y.) 638. See, for classification of decrees by Mr. Foster, Foster's Fed. Pr. § 317 et seq. (718) Ch. 36] DECREES. 700 issue between the parties. A final decree, sometimes called a "decree on further directions," or "on the equity reserved," disposes ultimately of the suit.* What constitutes a final de- cree has given rise to much discussion, and is in many instances involved in considerable confusion.^ When a decree finally de- cides and disposes of the whole merits of a cause, and reserves * Adams, Eq. 375; Brula v. Knott, 12 Sim. 453. It seldom happens that the first decree can be final or conclude the cause. The most usual ground for not making a perfect decree in the first instance is the necessity which frequently exists to ascertain a disputed fact by an Issue at law, or to refer the cause to a master of the court to make inquiries, or to take accounts, or to adjust other matters which must be disposed of before a final decision can be made of the subject-matter of the suit. Barton, Suit in Eq. 135; 1 Barbour, Ch. Pr. 327; Adams, Bq. 375. See Richmond v. Atwood, 52 Fed. 21, citing, approvingly, Fos- ter, Fed. Pr. §i 318; Adams, Eq. 375; 1 Barbour, Ch. Pr. 326. 5 "Probably no question of equity practice has been the subject of more frequent discussion in this court than the finality of decrees. It has usually arisen upon appeals taken from decrees claimed to be interlocutory, but it has occasionally happened that the power of the court to set aside such a decree at a subsequent term has been the subject of dispute. The cases, it must be conceded, are not altogether harmonious. Upon the one hand, it is clear that a decree is final, though the case be referred to a master to execute the decree by a sale of property or otherwise, as in the case of the foreclosure of a mortgage. * * * If, however, the decree of foreclosure and sale leaves the antount due upon the debt to be determined, and the property to be sold ascertained and defined, it is not final. * * * ^ lijje result fol- lows if it merely determines the validity of the mortgage, and, without ordering a sale, directs the case to stand continued for further decree upon the coming in of the master's report. * * * it may be said in general that if the court make a decree fixing the rights and lia- bilities of the parties, and thereupon refer the case to a master for a ministerial purpose only, and no further proceedings in court are con- templated, the decree is final; but if it refer the case to him as a subor- dinate court, and for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final. * * * But even if an account be ordered taken, if such accounting be not asked for in the bill, and be ordered simply in exe- cution of the decree, and such decree be final as to all matters within the pleadings, it will still be regarded as final." McGourkey v. Toledo & O. C. Ry. Co., 146 U. S. 536. See Morton v. Beach, 56 N. J. Bq. 791, 41 Atl. 214; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 20; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Rust v. Electric Lighting Co., 124 Ala. 202, 27 So. 263. (T19) § 700 EQUITY PLEADING AND PRACTICE. [Ch. 36 no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree.® A decree which determines the whole controversy between the parties, leaving nothing to be done except to carry it into exe- cution, is a final decree for the purpose of appeal, and none the less so because the court retains the fund in controversy for the purpose of distributing it as decreed.'^ Where the fur- ther action of the court in the case is necessary to give com- pletely the relief contemplated by the court, then the decree upon which the question arises is to be regarded, not as final, but as interlocutory.® 6 1 Barbour, Ch. Pr. 330; Mills v. Hoag, 7 Paige (N. Y.) 18; Kane v. WMttick, 8 Wend. (N. Y.) 224. See Ex parte Crittenden, 10 Ark. 333; Humphreys v. Stafford, 71 Miss. 135, 13 So. 865; Petersburg Sav. & Ins. Co. V. Dellatorre, 30 U. S. App. 504, 70 Fed. 643; Travis v. Waters, 1 Johns. Ch. (N. Y.) 85; Tennent's Heirs v. Pattons, 6 Leigh (Va.) 196; Parker v. Logan, 82 Va. 376, 4 S. E. 613; Fleming v. Boiling, 8 Grat. (Va.) 292; Wright v. Strother, 76 Va. 857; Ward v. Funsten, 86 Va. 359, 10 S. B. 415; Bellamy v. Bellamy, 4 Fla. 242; Cook's Heirs & Creditors v. Bay, 4 How. (Miss.) 485; Mead v. Christian, 50 Ala. 561; Battaile v. Maryland Hospital lor Insane, 76 Va. 63. 7 Lewlsburg Bank v. Sheffey, 140 U. S. 445; Keystone Manganese & Iron Co. V. Martin, 132 U. S. 91. A decretal order on which execution may be taken out is a final decree. Haskell v. Raoul, 1 McCord, Eq. (S. C.) 22. A failure to adjudicate upon the question of costs does not affect the character of the decree as a final one. Peterson v. Vann, 83 N. C. 118. s Repass V. Moore, 96 Va. 147, 30 S. E. 458; Cocke's Adm'r v. Gilpin, 1 Rob. (Va.) 28; Rawlings' Bx'r v. Rawlings, 75 Va. 76. A decree is not final, although it declares the principles on which the court means to act in all its future doings in the cause, unless it also adjudicates upon and fixes the rights of the parties, so that it can be carried into effect without further inquiry as to their rights and liabilities. Pat- terson V. Hopkins, 23 Mich. 541. A decree directing the sale of certain lands, and that the commissioners ascertain and reiMjrt the several liens on such lands, and their priorities, is an interlocutory decree. Sum- mers V. Darne, 31 Grat. (Va.) 791. See Ambrouse's Heirs v. Keller, 22 Grat. (Va.) 769'; Beebe v. Russell, 19 How. (TJ. S.) 283; Craighead v. Wilson, 18 How. (XJ. S.) 199. It is said that no case can be found in which a decree directing a reference to a master, or a feigned issue, for the purpose of ascertaining any material fact, has been held to be a final decree. 1 Barbour, Ch. Pr. 330; Jaques v. Trustees of Methodist (720) Ch. 36] DECREES. § 701 S 701. Decretal orders. Under the English chancery practice, a distinction was made between decrees and decretal orders. A decree is the order Episcopal Church in New York, 17 Johns. (N. Y.) 54.8. A decree may be final, though it directs a reference to a master, if all consequential directions, depending upon the result of the master's report, are con- tained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court. 1 Bar- bour, Ch. Pr. 330; Cook's Heirs & Creditors v. Bay, 4 How. (Miss.) 485; Bates V. Delavan, 5 Paige (N. Y.) 299; Mills v. Hoag, 7 Paige (N. Y.) 18, 31 Am. Dec. 271. "A decree never can be said to be final where it is Impossible for the party in whose favor the decision is made ever to obtain any benefit therefrom without again setting the cause down for hearing before the court, upon the equity reserved, upon the coming in and confirmation of the report of the master to whom it is referred to ascertain certain facts which are absolutely necessary to be ascer- tained before the case is finally disposed of by the court, or which the chancellor thinks proper to have ascertained before he grants any re- lief whatever to the complainant. But if the decree not only settles the rights of the parties, but gives all the consequential directions which will be necessary to a final disposition of the cause, upon the mere confirmation of the report of the master by a common order in the register's office, it is a final decree, and may be enrolled at the expiration of thirty days, although the amount to which the com- plainant may be entitled under such decree is still to be ascertained upon a reference to a master for that purpose. Thus, in the ordinary case of a bill for the foreclosure of a mortgage, if the decree merely decides or declares the rights of the complainant by virtue of his bond and mortgage, and refers it to a master to compute and ascertain the amount due to him, reserving all further questions and directions until the coming in and confirmation of the master's report, it is an inter- locutory decree merely, as the complainant cannot obtain the benefit of his suit until he brings the cause on to be heard again upon the equity reserved, and for further directions as to a sale of the mort- gaged premises and the payment of his debt and costs out of the pro- ceeds of such sale. But if the decree, in addition to the reference to the master to compute the amount due upon the bond and mortgage, proceeds further, and gives the usual directions in such cases, — that, upon the coming in and confirmation of the report of the master, the premises shall be sold, and that the master who makes such sale shall pay the amount so reported due, together with the interest and costs, out of the proceeds of such sale, and directing the mortgagor to pay the deficiency reported due upon such sale, — the decree is final, al- though the mortgagor may have the right to except to the master's (721) Equity — 46 §702 EQUITY PLEADING AND PRACTICE. [Ch. 36 of a court made upon the hearing. A decretal order is an order in the nature of a decree, made upon motion or petition, either before or after the hearing.® The order made upon mo- tion before hearing, for example, in suits for the specific per- formance of contracts, as for a reference to a master to inquire into the vendor's title, is a decretal order. Orders made upon petitions addressed to the court in a summary manner, either on behalf of infants or under the authority of acts of the legislature, also come under the denomination of "decretal or- ders" ; as do also those orders which are made upon petitions presented under the authority of decrees which, although final with regard to the persons having the immediate interest in the property in the hands of the court, reserve a right to par- ties who, upon the determination of the immediate interest, shall be interested in the property, to apply to the court touch- ing the same, as they shall be advised.^" § 702. Decrees requiring further orders to complete them. There are instances of decrees which, although they are final in their nature, require the confirmation of a further order of the court before they can be acted upon. The most ordinary case in which a further order is necessary to complete the de- cree is that of a decree for the foreclosure of a mortgage.-'-' report of the amount due." Johnson v. Everett, 9 Paige (N. Y.) 636. A decree entered pursuant to an order pro confesso on a cross bill is not final, but interlocutory, -where it leaves undetermined as bet-ween the parties to the original and supplemental bills, the question of the legal ownership of property in dispute, and -where, also, it is nec- essary to refer the cause to a master for an accounting in respect to rents and profits. Blythe v. Hinckley, 84 Fed. 228. See, also. Ex parte Railroad Co., 95 U. S. 221; Ayres v. Carver, 17 How. (U. S.) 594; Holgate V. Eaton, 116 U. S. 33. A decree dismissing a cross bill is not a final decree. Ayres v. Carver, 17 How. (U. S.) 591. 9 1 Barbour, Ch. Pr. 337. 10 1 Barbour, Ch. Pr. 337. Ill Barbour, Ch. Pr. 332. See Tuckfield v. Buller, 1 Dickens, 241; Hubble V. Read, 1 Dickens, 243, note. In the case of Lowther v. An- dover, 1 Brown Ch. 397, which was a bill filed on behalf of a pur- chaser for the specific performance of an agreement for the sale of (722) Ch. 36] DECREES. § 703 § 703. Reservation of liberty to apply. Although it is the usual practice of the court, in making a decree, to make a complete decree upon all the points connect- ed with the case, so as to make a final disposition thereof, yet it sometimes happens that a decision upon all the points cannot be pronounced until a future period. Thus, for instance, the interest of a fund may belong to a person for life, and, after his death, the fund may be distributable among a particular class of individuals. In such a case, though those who form that class, as well as the tenant for life, must be, and in general are, before the court at the time when the decree is pro- nounced, the court will not at that time take upon itself to de- clare their interests in the fund, because it is a rule never to declare rights which are not immediately to be acted upon, lest events should occur, before the time of acting upon them, which may create an alteration in those rights. All that the court does, therefore, under such circumstances, is to decree the interest of the fund to be paid to the person entitled to the dividends during his life, and to declare that, upon his death, the parties interested in the fund are to be at liberty to apply to the court as they may be advised. The same kind of liberty is also given in any other case in which it may seem necessary ; and the effect of it is not to alter the final nature of the de- cree. A decree with such a liberty reserved is still a final de- cree, and, when signed and enrolled, may be pleaded in bar to another suit for the same matter. The effect of it is, however, to permit persons having an interest under it to apply to the court touching such interest, in a summary way, either by pe- tition or motion, without the necessity of again setting the cause down.^^ On the same principle, if a sum of money ap- an estate, a decree was made directing tlie master to appoint a time and place for tlie payment of the principal money, intereist, and costs; and it was directed that, in default of payment, the hill was to he dismissed, with costs to he taxed, etc. This, although a final decree, required a subsequent order of the court to complete it. 1 Barbour, Ch. Pr. 332. 12 1 Barbour, Ch. Pr. 332; Adams, Eq. 388. The form of clause grant- (723) ^704 EQUITY PLEADING AND PRACTICE. [Ch. 36 pears at the hearing to belong prima facie to one person, sub- ject to claims by others which cannot then be discussed, it will be carried to the account of the prima facie owner, with the •direction that it shall not be paid to him without notice to the adverse claimants, and such claimants may then present a pe- tition to have the fund paid out of court, and may serve it on ,the party in whose name it stands. ^^ Applications under a ireservation of liberty to apply may be made either by motion •or petition, except in cases where the object is to have money paid out of court, where the application should be by petition -unless the title to the fund is clear, as where the money has been carried over to the separate account of the party, or the application extends only to the payment of interest, in which •eases, it seems, it may be made upon petition.^* .§ 704. Decrees by consent. A decree by consent is binding unless procured by fraud, where the parties are competent to consent.^ ^ The court will not, as a general rule, make any decree by consent, where infants are concerned, without referring it to a master to determine whether it will be for their benefit; yet when once a decree is pronounced without that previous step, the infants will be bound by it.^^ The court will not set aside a decree made by consent of counsel for the parties, either by rehearing or appeal, or by bill of review, unless, by clerical misprision, anything has been inserted in the order, as by consent, to which the party had not consented, in which case, Lord Thurlow appears to have considered that a bill of ing liberty to apply is: "And any of the parties are to be at liberty to apply to the court as occasion shall require." Curtis, Eq. Prec. 393. 13 Adams, Bq. 389. 14 1 Barbour, Ch. Pr. 333. See Anonymous, 4 Madd. 228; Heathcote V. Edwards, Jac. 504. 15 1 Barbour, Ch. Pr. 373; Frank v. Bruck, 4 111. App. 627; French v. Shotwell, 6 Johns. Ch. (N. Y.) 235; Stinson v. Ashley, 5 Russ. 4. 16 1 Barbour, Ch. Pr. 373. See Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199; Gooch v. Green, 102 111. 507. (724) Ch. 36] DECREES. § 704 review would lie.-'^ Suet an order or decree cannot be modi- fied or varied in an essential part without the assent of both parties to the same; but the court, iipon the application of either party, may give such further directions as shall become necessary for the purpose of carrying such order or decree into effect according to its spirit or intent.^^ A consent decree cannot be appealed from.-'® The consent of counsel to a decree is to be given upon their own conception of the authenticity of their instructions, and, as a client is bound by the act of his counsel, he must, if the counsel has consented without sufficient authority, seek his remedy against the counsel.^" Where it appears of record that the defend- ant assented to the decree through his solicitor, it is equivalent to a direct finding as a fact by the court that the solicitor had authority to do what he did, and it binds the court of review so far as the question is one of fact only, and the consent is equivalent to an admission by the parties on the record that the facts exist on which the decree rests. ^^ Where a decree has 17 1 Barbour, Ch. Pr. 373; Anonymous, 1 Ves. Jr. 93; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Kane v. Whittick, 8 Wend. (N. Y.) 219; Ringgold's Case, 1 Bland (Md.) 5. See, also, to same effect, 2 Daniell, Ch. PL & Pr. (6th Am. Ed.) 974; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862. 18 1 Barbour, Ch. Pr. 351; Leitch v. Cumpston, 4 Paige (N. Y.) 476. 19 Pacific Railroad v. Ketchum, 101 U. S. 289; Cole v. Scott, 14 Jur. 25; Carew v. Cooper, 12 Wkly. Rep. 767. It was held by the su- preme court of the United States that in the federal court, on account of statutory enactments (Rev. St. U. S. § 692), appeals were a mat- ter of right, and although errors which were in law waived by consent would not be considered by the supreme court, nevertheless such court had jurisdiction of the case, but must take all the facts as admitted, and consider only whether the case was one in which, under any set of facts, the decree could be entered. Pacific Railroad v. Ketchum, 101 U. S. 289. 20 1 Barbour, Ch. Pr. 373; Bradish v. Gee, 1 Amb. 229. In Pacific Railroad v. Ketchum, 101 TJ. S. 289, it is held that the question cannot be raised on appeal, and that the remedy for the fraud or conduct of the solicitor or the officers of the corporation is by an appropriate pro- ceeding in the court where the consent was received and acted upon, and in which proof may be taken of the facts ascertained. 21 Pacific Railroad v. ketchum, 101 U. S. 289. (725) §706 EQUITY PLEADING AND PRACTICE. [Ch, 36 been obtained by fraud, relief may be had against it by orig- inal bill.22 Wben a decree is made by consent, it should be so stated in the decree.^* § 705. Decrees pro confesso. Where the bill is taken pro confesso, the cause must be brought to a hearing, as well as in other causes.^* Decrees pro confesso have already been fully considered.^^ § 706 . Decrees by default. If, at the hearing, the defendant does not appear, his de- fault is entered, and the court proceeds at the hearing to ren- der a decree by default. Decrees of this nature differ little in iDoint of form from ordinary decrees made upon hearing all parties. Under the English practice, such a decree was not considered as the judgment of the court, biit as the act of the party who obtained it, conceiving what the judgment of the court would be if the other party had appeared. It was taken at the peril of the party obtaining it, if he could not support it by pleadings and proofs. ^^ By an ordinance of Lord Bacon, 22 1 Barbour, Ch. Pr. 373; Bradish v. Gee, 1 Amb. 229. 23 1 Barbour, Ch. Pr. 339; Seton, Decrees, 375. The recital that the decree was made "with the consent of all the parties" binds only the parties, and not those who should have been parties. Dibrell v. Car- lisle, 51 Miss. 785. See, also, for what constitutes consent decrees, Lee V. Lee, 77 Ala. 412; Mitchel v. Hardie, 84 Ala. 349, 4 So. 182. The recital in the record of the decree that the case came on for final hearing upon the stipulation of the parties does not show that the decree was rendered by consent. American Emigrant Co. v. Pul- ler, 83 Iowa, 599, 50 N. W. 48. The distinction between a final de- cree and a stipulation upon which such decree may be entered is that the sanction of the court is necessary to give such agreement the effect of a final decree. Roemer v. Neumann, 26 Fed. 332. 2*1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Thomson v. Wooster, 114 U. S. 110; Williams v. Corwin, Hopk. Ch. (N. Y.) 471. 25 See supra, § 151. 20 1 Barbour, Ch. Pr. 372; 1 Hoffman, Ch. Pr. 557; Carew v. John- ston, 2 Schoales & L. 300; Knight v. Young, 2 Ves. & B. 186. (726) Ch, 36] DECREES. § 708 where no counsel appeared for the defendant at the hearing, and the process appeared to have been duly served, the answer of such defendant was read in court, and Lord Clarendon, after adopting this regulation, ordered that if the court, on the hear- ing, should find cause to decree for the complainant, yet a day should he given to the defendant to show cause against the same.^'^ If the complainant does not appear at the hearing, the hill will be dismissed with costs.^* § 707. Decrees in rem and in personam. Decrees are of two classes, — decrees in rem and decrees in personam. The former have been defined to be adjudications pronotmced iipon the status of some particular subject-matter by a tribunal having competent authority for that purpose, while it is said that a decree in personam is in form, as well as in substance, between the parties claiming the right, and that it so appears by the record itself.^® The accuracy of this defi- nition, however, has been controverted.^** § 708. Decree between co-defendants. A decree may be made between co-defendants, grounded upon pleadings and proofs between the complainant and the defend- ants. It was said to be the constant practice of the court of chancery of JSTew York, when such court existed, to so do.^^ The right so to do is based upon the desire on the part of the courts to prevent a multiplicity of suits. To be binding upon 27 1 Hoffman, Cli. Pr. 558; Beames, Order Ch. 197. For cases con- cerning decrees by default, see Geary v. Sheridan, 8 Ves. 192; Carew v. Johnston, 2 Schoales & L. 300; Stuhhs v. . 10 Ves. 30; Knight V. Young, 2 Ves. & B. 186; Webb v. Litcot, 3 Atk. 25. See Speidel v. Fuller, 2 Dickens, 633 ; Beames, Order Ch. 29, 197 ; 1 Daniell, Ch. PI. & Pr. {1st Ed.) 622. See post. Appendix A. 28 1 Hoffman, Ch. Pr. 557. See Ellis v. King, 5 Madd. 21; Robson v. Cranwell, 1 Dickens, 61; Kemp v. Squire, 1 Ves. Sr. 205. 29 Woodruff v. Taylor, 20 Vt. 65; Cross v. Armstrong, 44 Ohio St. 613; Freeman, Judgments, § 606. 30 Freeman, Judgments, § 606 et seq. 311 Barbour, Ch. Pr. 339; Elliott v. Pell, 1 Paige (N. Y.) 268. See Chamley v. Dunsany^ 2 Schoales & L. 710. (727) §709 EQUITY PLEADING AND PRACTICE. [Ch. 36 co-defendants, such, decree must be founded upon and connect- ed with the subject-matter of the litigation between the com- plainant and one or more of the defendants.^^ § 709. Decrees against infants. An infant complainant is as much bound by a decree as a person of full age.^^ In this respect courts of equity follow the rule of law, but, if gross laches appear upon the part of the prochein ami, the infant may open the decree by a new bill. In general, infants are bound as much as adults by the conduct of their solicitors as respects matters of practice, acting bona fide in their behalf, but not as to matters of mistake, fraud, or collusion.** And infant parties defendant regularly before the court are bound as though tkey were adults,** with the qualification that, after becoming of age, they may impeach tbem for fraud, collusion, or error apparent on the face of the decree, or may prosecute an appeal or writ of error, within the time after majority fixed for adults, from decrees,*® or, in some jurisdictions^ may show cause within the time limited for that purpose.* '^ 32 1 Barbour, Ola. Fr. 340; Elliott v. Pell, 1 Paige (N. Y.) 268. For right of the court to make decree between co-defendants when no cross bill is filed, see post, § 893. 33 1 Barbour, Ch. Pr. 335; Gregory v. Molesworth, 3 Atk. 626. But see Jarvis v. Crozier, 98 Fed. 753; Long v. Mulford, 17 Ohio St. 484. 34 Bent V. Maxwell Land Grant & Ry. Co., 3 N. M. 227, 3 Pac. 721. 35 "And it is well settled with us that an infant, as a general rule, is as much bound by a decree against him as a person of full age. The law recognizes no distinction between a decree against an infant and a decree against an adult; and therefore it is that an infant can impeach it only upon the grounds which would invalidate it in the case of another person, such as fraud, collusion, or error. Zirkle v. Mc- Cue, 26 Grat. (Va.) 517, 528; Pennybacker v. Switzer, 75 Va. 671; 1 Minor, Inst. Com. & St. Law (2d Ed.) 507, 508." Harrison v. Wallton's Bx'r, 95 Va. 721, 30 S. E. 372. seVaccaro v. Cicalla, 89 Tenn. 63, 14 S. W. 43; Sites v. Eldredge, 45 N. J. Ea. 632, 18 Atl. 214, 14 Am. St. Rep. 769. 37 Huson V. Wallace, 1 Rich. Eq. (S. C.) 1. See post, § 710. (728) Ch. 36J DECREES. § 710 § 710. Infant's day to show cause. It was the ancient practice of the court of chancery that no decree should be made against an infant without giving him a day, which was usually six months after he came of age, to show cause against it.^* The words of such a decree are: 38 1 Barbour, Ch. Pr. 334; Mills v. Dennis, 3 Johns. Ch. (N. Y.) 367; McClellan v. McClellan, 65 Me. 508; Long v. Mulford, 17 Ohio St. 506; Wilkinson's Adm'r v. Oliver's Representatives, 4 Hen. & M. (Va.) 450; Napier v. Bflangham, 2 P. Wms. 401, 4 Brown, Pari. Cas. 340; Eyre v. Shaftsbury, 2 P. Wms. 120; Harris v. Youman, Hoffm. Ch. (N. Y.) 178, where the subject is exhaustively discussed. "It was the ancient, and has been the settled, practice of the court that no decree should be made against an infant without giving him a day (which was usually six months) after he comes of age to show cause against it (2 Vern. 232, 342; 2 P. Wms. 403); and he is' to be served with process of sub- poena for that purpose on his coming of age (Bingham, Inf. p. 115). But though, in the case of a foreclosure of a mortgage, the infant has his six months to show cause, yet he cannot then be permitted to unravel the accounts, nor will he be entitled to redeem the mortgage by paying what is reported due. He is only entitled to show error in the decree; and this was declared to be the settled rule by Lord Talbot in Mallack v. Galton, 3 P. Wms. 352, and was understood to be the rule in the case of Winchester v. Beavor, 3 Ves. 317. If, however, instead of foreclosing the mortgage against the infant heir of the mortgagor, and thereby giving him a day after he comes of age, it be decreed that the lands be sold to pay the mortgage debt, then it seems to be un- derstood that the sale will bind the infant. Booth v. Rich, 1 Vern. 295. So, if lands devised to be sold for payment of debts be decreed to be' sold, the infant has no day after he comes of age, unless he be decreed to join in the sale. 2 Vern. 429. The English practice until lately has been to foreclose instead of selling the mortgaged premises. Thus, in Goodier v. Ashton, 18 Ves. 83, there was the usual decree of foreclosure against an infant, with a day to show cause, though it was then suggested to the court that a decree for a sale would be more advantageous to the infant, as the estate might be mortgaged for less than its value; and it was said to be the rule in Ireland to direct a sale in all cases, instead of a foreclosure. But the master of the rolls did not incline to make such a precedent against the uniform practice. This course was, however, shortly afterwards adopted by Lord Eldon, in Mondey v. Mondey, 1 Ves. & B. 223, who said that, if there was no precedent (as he believed there was not), he would then make one; and he directed an inquiry whether it would be for the infant's benefit that the estate should be sold." Mills v. Dennis, 3 Johns. Ch. (N. Y.) 367. It is said that, under the English practice, (Y29) § 710 EQUITY PLEADING AND PRACTICE. [Ch. 36 "And this decree is to be binding upon the infant, unless he shall, within six months after he shall have attained the age of twenty-one years, being served with process for that purpose, show unto this court good cause to the contrary."^* Under such a decree, the practice was to serve the late infant with a subpoena to show cause, and, if he failed to appear or to show cause against the decree, it was made absolute. If he appeared, he might defend and show the decree to be wrong.*" If the infant shows no cause within the time specified, the decree is made absolute against him. On his coming of age, and before the decree is made absolute, he may put in a new answer and make another defense and examine witnesses, and the putting in of a new answer after he comes of age is good the rigM to a day in court did not obtain wliere the decree affected only personal property. Hendricks v. McLean, 18 Mo. 39. For cases doubting, or denying the right of the infant to have a day in court after attaining his majority, see Heath's Adm'r v. Ashley's Adm'r, 15 Mo. 393; Waterman v. Lawrence, 19 Gal. 210. In Illinois, a decree is absolute in form in the first instance, and no day is given to show cause after the infant becomes of age, as the statute gives to a minor five years after attaining his majority to bring his writ of error. Barnes v. Hazleton, 50 111. 430. See, also, Kingsbury v. Buckner, 134 XJ. S. 674. It has been held that the rule was not to give a day unless a conveyance by the infant was directed in form or substance. Shef- field V. Buckingham, 1 West Ch. 684; Wilkinson's Adm'r v. Oliver's Representatives, 4 Hen. & M. (Va.) 450; Winchester v. Winchester, 1 Head (Tenn.) 460. But it has been likewise laid down that an infant defendant is to have time to show cause whenever his inheritance is bound, whether he is decreed to execute conveyances or not, except in certain oases provided for by statute. Harris v. Youman, Hoffm. Ch. (N. Y.) 178; Long v. Mulford, 17 Ohio St. 484. It is held that the decree should make an express reservation of the right of the infant to show cause. Long v. Mulford, 17 Ohio St. 484; Braxton v. Lee's Heirs, 4 Hen. & M. (Va.) 376; Morriss v. Virginia Ins. Co., 85 Va. 588, 8 S. E. 383. But it has also been held that the express reservation is unnecessary. Kuchenbeiser v. Beckert, 41 111. 172; Shields v. Powers, 29 Mo. 315. For a recent case considering decrees against infants, see Blanton v. Rose (Ark.) 68 S. W. 674. 39 1 Barbour, Ch. Pr. 334; 1 Newland, Ch. Pr. 501; Price v. Carver, 3 Mylne & C. 163; McLemore v. Chicago, St. L. & N. O. R. Co., 58 Miss. 514; Lockwood v. Stradley, 1 Del. Ch. 298. 40 McLemore v. Chicago, St. L. & N. 0. R. Co., 58 Miss. 514. (730) Ch. 36] DECREES. § 710 cause why the decree should not be absolute against him.*^ But an infant who is aggrieved by a decree is not obliged to wait until he is of age before he seeks redress, but may apply for that purpose as soon as he is advised. ISTeither is he bound to proceed by way of a rehearing or bill of review, but may im- peach the former decree by an original bill, in which it will be enough for him to say the decree was obtained by fraud and collusion, or that no day was given him to show cause against it.^^ It seems that, provided there is a foundation for it upon the merits, an infant, before he comes of age, is en- titled to apply to the court to put in a better answer.*^ When the infant defendant may come into court to impeach a decree against him, how he may proceed, and what his right and remedy are, seem not to be well settled. A siimmary of it is, as stated by the supreme court of Mississippi, that, if the infant is dissatisfied with the defense which has been made for him, and he wishes to make a new one, he must, in general, wait till he has attained twenty-one years before he applies ; but, upon spe- cial circumstances shown, he may obtain leave to make a new defense during his infancy, and in such case, in order to bind him by the decree to be made, he will be treated as a complain- ant, and be bound accordingly, without a right to show cause; but if the infant seeks to impeach a decree for fraud, collusion, or error, he is not required to wait until he attains majority, and may proceed by original bill, in which it is enough for him to say that the decree was obtained by fraud and collusion, or that no day was given him to show cause against it.^* Where, pending "1 Barbour, Ch. Pr. 334. See Napier v. Effingham, 2 P. Wms. 401; Fountain v. Caine, 1 P. Wms. 504; Bennet v. Lee, 2 Atk. 528; Napier v. Howard, Mos. 68. *2l Barbour, Ch. Pr. 334; Richmond v. Tayleur, 1 P. Wms. 736, note; Loyd V. Malone, 23 111. 43; Lloyd v. Kirkwood, 112 111. 329; Franklin Sav. Bank v. Taylor, 9 U. S. App. 406, 53 Fed. 854. 43 Bennet v. Lee, 2 Atk. 528. 4*McLemore v. Chicago, St. L. & N. O. R. Co., 58 Miss. 514, citing Kelsall v. Kelsall, 2 Mylne & K. 409; Bennet v. Lee, 2 Atk. 529; Savage v. Carroll, 1 Ball & B. 548; Richmond v. Tayleur, 1 P. Wms. 737; Sledge V. Boone, 57 Miss. 222; Enochs v. Harrelson, 57 Miss. 465; 1 Bar- (731) §711 EQUITY PLEADING AND PRACTICE. [Ch. 36 a suit, the infant attains the age of twenty-one years, the suit is not thereby abated, but may be continued, if the infant elects, in his own name, without the necessity of any amendment of the proceeding.*^ An answer by the guardian ad litem of an alleged infant, who was present when the guardian was ap- pointed, cannot be repudiated by him in a collateral proceed- ing on the ground that he was past twenty-one years of age when the answer was made.*® § 711. Consent decrees against infants. In consequence of their incapacity, persons under disability are unable to compromise their rights or claims; but where those rights or claims are merely equitable, a court of chancery may, in general, order the trust property to be dealt with in whatever form it may consider to be for the benefit of the ces- tuis que trust who are under disability, and therefore has power to compromise such rights or claims.*'^ It is presumed that the court which enters a consent decree against infants has bour, Ch. Pr. 334. "The infant, if his cause against a decree be error of law in the case, may proceed by bill of review, or supplemental bill in the nature of bill of review, showing error of law; and in such bill of review I do not think the infant would be confined to merely such matters, to show error, as appear on the face of the decree, as in ordinary cases, and he need not have leave of court to file it, as in ordinary cases of bill of review. In re Hoghton, L. R. 18 Eq. 573. He may proceed by original bill, for not only fraud, but for error of law. He may proceed by petition, which is but another name for a bill. He may introduce new matter against it, so it existed at the date of de- cree. He is given the broad right to show cause against it, and under any of these pleadings he is given relief coextensive with the right. There seems to be great liberality in this matter of procedure. 1 Danlell, Ch. Pr. 164, 174; 2 Beach, Mod. Bq. Pr. § 883; laoyd v. Malone, 23 111. 43, 74 Am. Dec. 179; Kingsbury v. Buckner, 134 XJ. S. 650, 10 Sup. Ct. 638; Ewing v. Winters, 39 W. Va. 489, 20 S. E. 572." LafEerty V. Lafferty, 42 W. Va. 783, 26 S. E. 262. « Shuttlesworth v. Hughey, 6 Rich. Law (S. C.) 329; Connor v. Ashley, 57 S. C. 305, 35 S. E. 546. 48 Manson v. Duncanson, 166 U. S. 533. « Wilson V. Schaefer (Tenn.) 64 S. W. 208, quoting 1 Daniell, Ch. PI. & Pr. (4th Ed.) 66; Brooke v. Mostyn, 2 De Gex, J. & S. 373, 415; Wilton V. Hill, 25 Law J. Ch. 156; Wall v. Rogers, L. R. 9 Eq. 58. (732) Ch. 36] DECREES. § 712 made an inquiry as to whether or not it is for the benefit of the infants.*® § 712. Decrees must be founded on pleadings and evidence. The complainant must abide by the case made by his bill. Every decree must be founded on and conform to the allega- 48 Thompson v. Maxwell Land Grant & Ry. Co., 168 U. S. 451. "An infant is ordinarily bound by acts done in good faith by his solicitor ■or counsel in the course of the suit, to the same extent as a person of full age. Tillotson v. Hargrave, 3 Madd. 494; Levy v. Levy, 3 Madd. 245. And a compromise, appearing to the court to be for the benefit of an infant, will be confirmed without a reference to a master, and, if sanctioned by the court, cannot afterwards be set aside except for fraud. Lippiat v. Holley, 1 Beav. 423; Brooke v. Mostyn, 33 Beav. 457, .2 De Gex, J. & S. 373. If the court does pronounce a decree against an Infant by consent, and without inauiry whether it will be for his benefit, he is as much bound by the decree as if there had been a reference to a master, and a report by him that it was for the benefit of the infant. Wall v. Bushby, 1 Brown, Ch. 484; 1 Daniell, Ch. PI. & Pr. 164. The case falls within the general rule that a decree made by consent of counsel, without fraud or collusion, cannot be set aside by rehearing, appeal, or review. Webb v. Webb, 3 Swanst. 658; Harrison V. Rumsey, 2 Ves. Sr. 488; Bradish v. Gee, 1 Amb. 229; 1 Keny. 73; Downing v. Cage, 1 Eq. Cas. Abr. 165; Toder y. Sansam, 1 Brown, Pari. Cas. 468; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555." Thompson V. Maxwell Land Grant & Ry. Co., 168 IT. S. 451; Milly v. Harrison, 7 Cold. (Tenn.) 191; Gusdofer v. Gundy, 72 Miss. 312, 16 So. 432. See, for compromise of infants' rights and consent decrees, Wilson v. Schaefer (Tenn.) 64 S. W. 208, holding that, where a compromise decree, confirming an exchange of lands in which infants had a re- mainder, was petitioned for by their mother, as their next friend, such decree was valid and binding on them, though not consented to by their 'guardian ad litem. See Tripp v. Gifford, 155 Mass. 108, 29 N. B. 208, 31 Am. St. Rep. 530; In re Birchall, 16 Ch. Div. 41; Walsh v. Walsh, 116 Mass. 377, 17 Am. Rep. 162. "If that decree had been taken upon de- fault of the infant defendants, or if, upon its face, it appeared to have been taken in pursuance of a compromise which was not shown to have had explicit approval of the court, it may be that it would have been subject to review without inq.uiry into the merits of the compromise; but when, without impugning the fairness of the proceedings in court, it is proposed to set aside a decree which, upon its face, is in all re- spects regular, because of an alleged agreement or consent of the guardian ad litem which is not referred to in the record, we are ;strongly inclined to think it should be alleged and proved, not only (733) § 712 EQUITY PLEADING AND PRACTICE. [Ch. 36 tions and proofs, and cannot be based on a fact not put in issue by the pleadings.*^ The principle is authoritatively settled that a decree or judgment on a matter outside of the issue raised by the pleadings is a nullity, and is nowhere entitled to respect as a judicial sentence.^'' It is said that a consent de- cree is not, in a strict legal sense, a judicial sentence, but is in the nature of a solemn contract, and is, in effect, an admis- sion by the parties that the decree is a just determination of their rights upon the real facts of the case, had such been proved.'^ It is held that a consent decree will be valid and binding upon the parties if its provisions fall within the gen- eral scope of the case made by the pleadings.^^ Under a that the agreement had been made, but that it was not beneficial to the infants concerned, or, for some other reason, ought not to have been made. See Walsh v. Walsh, 116 Mass. 377." Franklin Sav. Bank v. Taylor, 53 Fed. 854. In Illinois it is held that to render a decree by consent without evidence, against minors, is always error. Bennett V. Bradford, 132 111. 269, 24 N. E. 630. See, also, Daingerfield v. Smith, 83 Va. 81, 1 S. E. 599. Though a decree appearing on its face to have been entered by consent is erroneous as to infant parties, it is never- theless valid and binding as to all the parties who were at the time sui juris. Cox V. Lynn, 138 111. 195, 29 N. E. 857. io Chapman v. Kane, 97 111. App. 567; Bedford v. Williams, 5 Cold. (Tenn.) 202; Reynolds v. Stockton, 43 N. J. Eq. 211. 10 Atl. 385; Crocket v. Lee, 7 Wheat. (TJ. S.) 522; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Iglehart v. Armiger. 1 Bland (Md.) 519; Britton v. Brewster, 2 Fed. 160; Ahl's Appeal, 129 Pa. 49, 18 Atl. 477; Ball v. Serum, 85 111. App. 560; Parkhurst v. Race, 100 111. 558; Penn v. Fogler, 182 111. 761, 55 N. E. 192. See supra, § 87. 50 Jones V. Davenport, 45 N. J. Bq. 77, 17 Atl. 570; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014; Reynolds v. Stockton, 43 N. J. Bq. 211, 10 Atl. 385. 51 Gibson, Suit in Ch. § 558, cited approvingly in Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. 52 Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014, quoting ap- provingly Beach, Mod. Eq. Pr. § 792. Parties to a suit have a right to agree to anything they please in reference to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement if it comes within the general scope of the case made by the pleadings. Pacific Railroad v. Ketchum, 101 U. S. 297, quoted with approval in Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. An agreement to refer a suit pending to an arbitrator, and that a judg- (734) Ch. 36] DECREES. § 712 prayer for general relief, any decree warranted by the allega- tions of the bill may be snpported.^^ The bill and answer need not point out, in detail, the means which the court should adopt in giving relief. Under the general prayer for relief, the court will often extend relief beyond the specific prayer, and not ex- actly in accordance with it.®* The complainant may, under the prayer for general relief, have special relief other than that prayed for, if consistent with the case made by the bill.®® As a general rule, where a complainant prays for only specific relief, he cannot obtain other relief than that prayed for.®'' Under a prayer for special relief, appropriate relief of the same character, but less extensive than that prayed for, may be granted. ^'^ ment shall be entered in the cause in conformity with, his decision, will justify the entry of a judgment accordingly, which judgment will be binding upon the court as a judgment by consent. Bank of Monroe V. Widner, 11 Paige (N. Y.) 533; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. A decree rendered by consent of the parties is not void as between themselves because it does not give to each just what the petition called for, and what ought, as a matter of right, to have been given to each of them. Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199; Schmidt v. Oregon Gold Min. Co., 28 Or. 9, 40 Pac. 1014. See, also, Fletcher v. Holmes, 25 Ind. 458. 53 Story, Bq. PI. §§ 40-42; Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Walker v. Converse, 148 111. 622, 36 N. E. 202; Burnett v. Boyd, 60 Miss. 627; Barnes v. Strong, 54 N. C. 100; Chambers v. Kunz- man, 59 N. J. Eq. 433, 45 Atl. 599; Hiern v. Mill, 13 Ves. 119; Driver V. Portner, 5 Port. (Ala.) 10; Rice v. Eiseman, 122 Ala. 343, 25 So. 214; Gibbs V. Davies, 168 111. 205, 48 N. B. 120. 54Walden v. Bodley, 14 Pet. (U. S.) 156. 55 Coggswell & Boulter Co. v. Coggswell (N. J. Eq.) 40 Atl. 213, citing Wilkin V. Wilkin, 1 Johns. Ch. (N. Y.) 117; Miller v. Jamison, 24 N. J. Eq. 41; 2 Daniell, Ch. PI. & Pr. (6th Am. Ed.) 380; Boon's Heirs v. Chiles, 8 Pet. (U. S.) 532. See supra, § 77. 66 Simms v. Guthrie, 9 Cranch (XJ. S.) 19; Halsted v. Meeker's Ex'rs, 18 N. J. Eq. 136; Dixon's Adm'r v. Campbell, 3 Dana (Ky.) 603; Loggie V. Chandler, 95 Me. 220, 49 Atl. 1059. See, however, Miami Exporting Co. V. Bank of United States, Wright (Ohio) 249, 257. 57 Camden Horse R. Co. v. Citizens Coach Co., 31 N. J. Eq. 525. See, also. Street v. Chicago Whariing & Storage Co., 157 111. 605, 41 N. E. 1108; Maxwell v. Smith, 86 Tenn. 539, 8 S. W. 340. (735) §713 EQUITY PLEADING AND PRACTICE. [Ch. 36 § 713. Who may take advantage of decrees. A party to a suit may sometfines liave tlie benefit of a de- cree without appearing at the hearing. Thus, where a decree in a suit by a residuary legatee against the trustees and ex- ecutors, and against other residuary legatees who are out of the jurisdiction of the court, directed the usual accounts, the court ordered, upon the application of the last-named persons, who, though still abroad, submitted to be bound by the decree, that they should be at liberty to enter their appearance, and should have the same benefit of the decree as if they had put in their answer and had appeared at the hearing.^* The court will sometimes order that a party coming in under a decree ob- tained by another person shall be at liberty to prosecute such decree, if the complainant delay prosecuting the decree.^* Un- der the English chancery practice, if the complainant was. entitled to relief against both defendants, and one defendant ought to indemnify the other defendant, who was decreed to pay the complainant, the court gave liberty to that defend- ant to prosecute the decree against the other; as where the surety paid money, the principal was required to indemnify the surety, and the court made the decree over.®" As a gen- eral rule, motions which have for their object to give effect to decrees and orders should be confined to cases where the order which is to be made upon the motion arises out of recent pro- ceedings, concerning which there can be no doubt. ^-^ 58 1 Barbour, Ch. Pr. 335; Banister v. Way, 2 Dickens, 686. For case of this character, see Farrar v. Wyatt, 5 Madd. 449. 59 1 Barbour, Ch. Pr. 336; Torin v. Fowke, 1 Dickens, 235; Sheppard V. Messider, 2 Dickens, 797; Sims v. Ridge, 3 Mer. 458; Dixon v. Wyatt, 4 Madd. 392; Edmunds v. Acland, 5 Madd. 31; 1 Newland, Ch. Pr. 321. In a creditor's suit, residuary legatees, upon motion, obtained an order that they should be at liberty to go before the master in taking the accounts, although they were not parties. 1 Barbour, Ch. Pr. 336; 1 Newland, Ch. Pr. 321. Leave has been given, upon petition, to the purchaser of the interest of a party to attend the master in making the inquiry directed by the decree. 1 Barbour, Ch. Pr. 336; Toosey v. Burchell, Jac. 159. 60 1 Barbour, Ch. Pr. 336; Walker v. Preswick, 2 Ves. Sr. 622. 611 Barbour, Ch. Pr. 333; Shipbrooke v. Hinchinbrook, 13 Ves. 393. (736) Ch. 36] DECREES. § 7l7 § 714. Who bound by decrees. It is a general rule that all who are parties to a decree are bound by it, and that those who are not parties are not bound.®* § 715. Frame of decrees. Decrees, in general, consist of three parts : (1) The cap- tion and title; (2) the recitals; and (3) the ordering part; to which may sometimes be added (4) the declaratory paM, which, when made use of, generally precedes the ordering part.** § 716. Caption of decree. Where it is material to either party, or unless otherwise directed by the court, the caption should correspond with the time of the actual entry of the decree. And where a decree is entered nunc pro tunc as of a previous date, or otherwise, it should appear by some entry in the minutes of the decree, or in the minutes of the proceedings in the cause, or in both, at what time the decree was actually entered.®* The caption is fol- lowed by the title of the cause. The parties, both complain- ant and defendant, should have the same titles in the decree as they have in the bill.®^ § 717. Recitals in decrees. Eormerly decrees contained recitals of the pleadings in the case. This practice, however, has in most jurisdictions been 62 1 Barbour, Cli. Pr. 334; Brown v. Wyncoop, 2 Blackf. (Ind.) 230. 63 1 Barbour, Ch. Pr. 337. 64 1 Barbour, Ch. Pr. 337; Whitney v. Belden, 4 Paige (N. Y.) 140; Barclay v. Brown, 7 Paige (N. Y.) 245. 65 1 Barbour, Ch. Pr. 388. See Jones v. Janes, 6 Leigh (Va.) 167; Church V. Chambers, 3 Dana (Ky.) 274. The caption of an order is not a necessary part of the record, and the omission of the name of the defendant therein is no objection, where it appears by the record that he was a party. Jones v. Janes, 6 Leigh (Va.) 167, 173. Where the term "defendants" is used in a decree without specifically naming any one of them, it will be held to comprise all who are made parties, as such, to the suit. Dousman v. Hooe, 3 Wis. 466. (737) Equity — 47 §718 EQUIT-? PLEADING AND PRACTICE. [Ch. 36 abolished, as tending to too great prolixity. In stating the ■evidence read in the cause, under the modern practice, it is merely stated generally, without specifying the particular depo- sitions which have been made use of.^® The recitals should not be argumentative, but should state merely the conclusions of law and fact.®'' It is not necessary to state in the decree that all the preliminary steps towards maturing the cause for hearing were taken; it being intended, where the cause is set' for hearing, that it has been done regularly, unless the party attempting to impugn the decree shows the contrary.®* 5 718. Facts to support decree. A decree in chancery, unlike a judgment at law, must find •eol Barbour, Ch. Pr. 338. «7 Dey v. Dunham, 2 Johns. Ch. (N. Y.) 182. The reasons assigned lor the decree are not part of the decree. Kerchner v. Kempton, 47 Md. 568. The recitals of a decree which is directly Impeached for fraud or surprise in its procurement are subject to attack by an orig- inal bill in the nature of a bill of review. Springston v. Morris, 47 W. Va. 50, 34 S. E. 766; Black, Judgm. § 238; Barton, Ch. Pr. (2d Ed.) 841. 68 1 Barbour, Ch. Pr. 338; Quarrier v. Carter's Representatives, 4 Hen. & M. (Va.) 242. Although it will be presumed that the cause was regularly matured for hearing when the decree was entered, it is the better practice that the decree should show on its face such fact. Riggs V. Lockwood, 12 W. Va. 133. See, also, Linsey v. McGannon, 9 W. Va. 154; Quarrier v. Carter's Representatives, 4 Hen. & M. (Va.) 242; Hartfield v. Brown, 8 Ark. 283; Pillow v. Wade, 31 Ark. €78, holding that the decree should set out the premises on which it is predicated. The form of decrees is frequently regulated by rule or statute. United States Equity Rule 86 provides that, in drawing up decrees and orders, neither the pleadings, nor any part thereof, nor the master's report, nor any other prior proceeding, shall be recited or stated in the decree or order, but that the decree or order shall be- gin, in substance, as follows: "This cause came on to be heard [or to be further heard, as the case may be] at this term, and was argued by counsel, and thereupon, upon consideration thereof, it was ordered, ad- judged, and decreed as follows, viz.: [Here insert the decree or or- der]." The court may occasionally state in the decree conclusions of fact as well as of law. Putnam v. Day, 22 Wall. (U. S.) 60. See Whiting V. Bank of United States, 13 Pet. (U. S.) 6, for statement of English practice, and practice in federal courts. See, also, for practice in the federal courts, Foster, Fed. Pr. § 325; Beach, Mod. Eq. Pr. § 807. (738) ■ Ch. 361 DECREES. § 718 the facts whicli warrant it.®* According to the ancient prac- tice in the English court of chancery, the decree recited at length the entire pleadings in the case, and the substance of the evidence contained in the depositions. That practice was subsequently slightly modified, but its decrees still contained full recitals. The practice obtained neither in England nor. America to set out the depositions in full, but simply to re- cite the substance of the evidence.'"' As the practice in chan- cery has always required the evidence to be in writing, or, if oral, to be reduced to writing, and preserved in the record, it is apparent that the old practice of embodying it in the de- cree was not material, as it could at all times be referred to for the purpose of seeing upon what the evidence was based, and whether it was sustained by the evidence, and hence the practice in some jurisdictions dispensed with embodying it in the decree.''^ The practice, as modified, does not dispense with the absolute necessity of preserving the evidence in the reeord.''^^ Where oral evidence is allowed upon the hearing, provisions are found, in most jurisdictions, authorizing the preservation thereof, either by way of certificate of evidence or bill of exceptions. '^^ When the decree is based upon the 69 2 Harrison, Ch. Pr. 108; Broad v. Broad, 2 Cli. Cas. 161; Burdoine V. Shelton, 10 Yerg. (Tenn.) 41; Adamski v. Wieczorek, 93 111. App. 357; Ricketts v. Chicago Permanent Building & Loan Ass'n, 67 111. App. 71; Chapman v. Kane, 97 111. App. 567. 70 Hughs V. Washington, 65 111. 247; Trenchard v. Warner, IS 111. 142; 2 Harrison, Ch. Pr. 108. See Brend v. Brend, 1 Vern. 213; Bonham v. Newcomb, 1 Vern. 215; Burdoine v. Shelton, 10 Yerg. (Tenn.) 41; Broad v. Broad, 2 Ch. Cas. 161. 71 Hughs v. Washington, 65 111. 247. See, also, Grob v. Cushman, 45 111. 119; Eaton v. Sanders, 43 111. 435; Axtell v. Pulsifer, 155 111. 141, 39 N. E. 615. T2 Hughs V. Washington, 65 111. 247. It is not essential that the facts on which the decree is based should be embodied in the record if they are contained in the master's report, or in depositions taken as the law requires, or in exhibits, or are made part of the record by certificate of evidence. If not thus preserved, they must appear upon the face of the decree. Bonnell v. Lewis, 3 111. App. 283. 73 Flaherty v. McCormick, 123 111. 525; Bressler v. McCune, 56 111. 475. The bill, answer, replication, and all exhibits and depositions tak- CY39) § 719 EQUITY PLEADING AND PRACTICE. [Ch. 36 verdict of an issue out of chancery, tlie evidence need not be preserved in the record. If, in such case, the court should en- ter up a decree contrary to the verdict, such decree must be sustained by evidence contained in the record. ''* It is the safer and better practice to incorporate findings of fact in the decree.'^^ A mere general finding of the decree that the alle- gations of the bill of complaint are true is insufficient.''® § 719. Ordering part. ' A decree should show upon its face what the court has de- cided or ordered.''^ The "ordering or mandatory part of the decree contains the specific directions of the court upon the matter before it. These directions must depend upon the na- ture of the particular case which is the subject of the decree. Where the decree is merely interlocutory, and directs an issue, or an inquiry to be made, or account to be taken before a mas- ter, it usually contains a reservation of the further matters to be decided, and generally, also, of the costs of the suit till after the event of the issue or reference shall be known. The ordering part of the decree commences as follows : "It is there- fore ordered, adjudged, and decreed, and this court, in virtue of the power therein vested, doth order, adjudge, and decree," en in a case, and every paper filed in a cause as a part thereof, in- cluding stipulations filed therein, become a part of the record, without being preserved by a certificate of evidence. Dilworth v. Curts, 139 111. 508, 29 N. E. 861; Stevison v. Earnest, 80 111. 513; Bressler v. Mc- Cune, 56 111. 481; Ricketts v. Chicago Permanent Building & Loan Ass'n, 67 111. App. 71. 74Bonnell v. Lewis, 3 111. App. 283. 75 Bonnell v. Lewis, 3 111. App. 283. 'sAdamsM v. Wieczorek, 93 111. App. 357; Glos v. Beckman, 183 111. 158, 55 N. E. 636. Facts shown by the record cannot be overcome by the recital of only a part of them in the order made. Ricketts v. Chicago Permanent Building & Loan Ass'n, 67 111. App. 71. 77 Honore v. Colmesnil, 1 J. J. Marsh. (Ky.) 506; Jones v. Minogue, 29 Ark. 637; Alexander v. "Wolley, 4 111. App. 225; Mobile & C. P. R. Co. V. Talman, 15 Ala. 472; Welch v. Louis, 31 111. 446. See, also. Car- penter V. Easton & A. R. Co., 28 N. J. Eg. a90; Citizens' Sav. Bank of St. Louis V. Stewart, 90 Iowa, 467, 57 N. W. 957. (740) Ch. 36] DECREES. § 719 etc.''* The reservation of further directions is not confined to the first decree, but will be repeated in every decree in which it may be necessary to direct a reference to a master.''® After such a reservation, the court will not interfere upon the matter reserved in a summary way, but the cause must be set down for hearing.®" A decree should ascertain the precise amount due, and not leave it to computation.*^ Thus, a decree direct- ing the sale of real estate to discharge the vendor's lien, which does not state the amount due at the date of the decree, but leaves it to be ascertained by computation of the master, is erroneous. The amount should first be ascertained, and the decree recite it.®^ A decree may be sustained by some other instrument in the record.** Eeference may be had to the pleadings on which the decree is based, to ascertain what the court means to order in such decree.** Courts of equity possess the power to examine witnesses viva voce for the purpose of proving written instruments, and the chancellor may state in the decree what the evidence is. 78 1 Barbour, Ch. Pr. 338. 79 1 Barbour, Ch. Pr. 338; Seton, Decrees, 36. 80 1 Barbour, Ch. Pr. 339; Cooke v. Gwyn, 3 Atk. 689. 81 Smith v. Trimble, 27 111. 152; Frye v. Bank of Illinois, 10 111. 332; Anderson v. Reed, 11 Iowa, 177; Clark v. Bell, 4 Dana (Ky.) 15; Spoor V. Tilson, 97 Va. 279, 33 S. E. 609. 82Codwise v. Taylor, 4 Sneed (Tenn.) 346. A decree for redemption on the payment of a stated sum, with interest at 6 per cent, from a certain date, is technically, but not materially, erroneous, because it fails to state the amount of the interest. Morrison v. Smith, 130 111. 304, 23 N. B. 241. See, also, Phillips v. Edsall, 127 111. 535, 20 N. E. 801. 83 Jones v. Belt, 2 Gill (Md.) 106. See Thain v. Rudisill, 126 Ind. 272, 26 N. E. 46. 84 Redhead v. Baker, 86 Iowa, 251, 53 N. W. 114. See Fowler v. Doyle, 16 Iowa, 535; Black, Judgm. §§ 118, 123; Freeman, Judgm. § 45. The maxim, "Id certum est quod certum reddi potest," will sustain a decree which refers to record data for determining what is otherwise uncertain on the face of the decree. Shepard v. Kelly, 2 Fla. 634; State V. White, 40 Fla. 297, 24 So. 160. (741) §721 EQUITY PLEADING AND PRACTICE. [Ch. 36 Such written instruments need not be set out in the record and decree in haec verba.^^ § 720. Declaratory part. Where the suit seeks a declaration of the rights of the par- ties, the ordering part of the decree should be prefaced by such a declaration. This, however, is not absolutely necessary, and the omission of it will not invalidate the decree. Sometimes the court directs an insertion in the decree of the reasons for mak- ing the declaration, and of the grounds upon which it proceeds in making it. This, however, is not frequently done, though its utility has often been recognized.*® It is said that such declaration ought not to be introduced where a decree is taken by the complainant upon the defendant's making default at the hearing.® '^ Where a decree is made by consent, it should be so stated in the decree.®* § 721. Necessity of signing decree. In some jurisdictions it is held that the chancellor must sign the decree.*® In other jurisdictions it is held that a decree need not be signed by the court. ®° ssLevert v. Redwood, 9 Port. (Ala.) 79. See, also, Linsey v. Mc- Gannon, 9 W. Va. 154. 86 1 Barbour, Ch. Pr. 339; Jenour v. Jenour, 10 Ves. 568; Gordon v. Gordon. 3 Swanst. 478; Maynard v. Moseley, 3 Swanst. 653; Bax v. Whltbread, 16 Ves. 24; Onions v. Tyrer, 1 P. Wms. 343. For form of a decree containing a declaration of tlie rights of the parties, see post, § 724. 87 Jennings v. Simpson, 1 Keen, 404. 88 1 Barbour, Ch. Pr. 339; Seton, Decrees, 375. 89 Sloan V. Cooper, 54 Ga. 486; Burch v. Scott, 1 Bland (Md.) 112. 90 Fonts V. Mann, 15 Neb. 172, 18 N. W. 64; Traer v. Whitman, 56 Iowa, 443, 9 N. W. 339; Cannon v. Hemphill, 7 Tex. 184; O'Hare v. Leonard, 19 Iowa, 515. See, also, relative to signing decrees, Fraker v. Brazelton, 12 Lea (Tenn.) 278. In Illinois, when the form of the de- cree has been settled and allowed by the court, the judge indorses thereon the word "enter," and affixes his name or initials, and the decree is then entered by the clerk. It is held that the signature of the judge is not essential to the validity of the decree. Habberton v. Habberton, 58 111. App. 99. See Hughs v. Washington, 65 111. 245; Stevens v. Cof- feen, 39 111. 148. (742) Ch. 36] DECREES. § 72Z § 722. Form of interlocutory decree in suit for accounting. [Title of court and cause.] This cause coming on to be heard upon the hill of complaint of said, complainant, the answers of said defendants, and replicationsi, and. upon the evidence, and it appearing that the bill of complaint is true so far as it sets up the relations of said parties up to the time of the dissolution of said firm of D., B. & Co.; that the charge in the bill of complaint that the said firm was dissolved because of coercion is un- true; that said bill is true so far as it sets forth the submission to T. U., and his award, but untrue so far as it alleges that the defendants exercised undue influence upon said T. U. by conversations with him in the absence of said A. B., pending said award. And it appearing that said T. TJ. was misled, as to the condition of said business, by the agreed statement of liabilitiesi and assets sub- mitted to him, the same showing that said business had sustained a loss up to June 1, A. D. 1885, of $7,401.36, when in fact the liability of the said firm had been overstated in the said agreed statement; that the principal mistake, so far as ascertained in said agreed state- ment, was in the amounts payable, which were represented to said T. U. to be much larger than they in fact were. And it appearing to the court that said T. U. made his award be- lieving said erroneous statement to be correct, and that said T. U. was misled thereby, and in consequence thereof said award is not the decision of said T. U., and that said A. B., when he agreed to said erroneous statement of the affairs of said firm, was ignorant of the said mistake, and continued ignorant thereof until after said award was made; that said A. B. is not a bookkeeper; that the books of the said firm were kept by or under the charge of said C. D., and that said erroneous statement is in the handwriting of said C. D. And counsel having been heard for all the parties: The court, being fully advised in the premises, doth order, adjudge, and decree that said award of the said T. U. be and the same hereby is set aside and held" for naught, and that said cause be and it hereby is referred to L. L., Esq., a master in chancery of this court, with directions to said master to state the account between the parties in said firm of D., B. & Company at the date of its dissolution, July 29, A. D. 1885, and to ascertain the value of the interest of said A. B. at said date in said firm assets, and ih the goodwill of said business, using all the evidence taken on the hearing of said cause, and such other competent evidence as may be offered by the parties, and that all the books and papers' of said firm, including all books and papers containing entriesi affecting said firm, in the possession or control of either of the parties to this suit, be produced before the said master at his ofilce in Chicago, in said county, and be open to examination there by either of the parties to this suit, or his counsel, and that said master report all evidence taken or used before him to this court, (743) § 723 EQUITY PLEADING AND PRACTICE. [Ch. 36 with, his opinion thereon, and that this cause be continued for such other orders or decreesi as may be needful upon the coming in of said master's report. § 723. Form of decree in suit for an accounting. [Title of court and cause.] This cause coming on again to be heard upon the bill of complaint, the answer thereto, and the replication of the complainant to such answer, and upon the proofs taken and heard in said cause, and upon the report of L. L., Esq., master in chancery, to whom said cause was referred to state the account between the parties in said firm of D., B. & Co. at the date of its dissolution, July 29, A. D. 1885, and to as- certain the value of the interest of said A. B. at said date in said firm assets, and in the goodwill of said business, and report all evi- dence taken or used before him to the court, with his opinion; and upon the evidence so taken, used, and reported by him, and upon the exceptions taken by the complainant to the said master's report, as well as( by the said defendants, and after hearing arguments on behalf of the respective parties, the said complainant being represented by his solicitors, Messrs. 0., S. & Q., and the said defendants by Messrs. X., H. & Z., and the said cause having been duly submitted, and the court being now sufficiently advised of and concerning the matters in controversy herein: It is by the court ordered that the exceptions of the complainant to the master's report in this cause be and the same are and each of them is hereby overruled; and that the exceptions of the defendants to said report be and the same are and each of them is hereby sus- tained; and with the exception of the sum of five thousand dollars ($5,000) found and reported by the master as the value of the inter- est of the complainant in the goodwill of said D., B. & Co., which is hereby disallowed, the report of the said master is hereby approved and confirmed. And the court doth find that the complainant and the defendants C. D., B. D., and E. F. entered into a copartnership agreement on the 16th day of October, 1884, to carry on a wholesale business as dealers in gents' furnishing goods, at Chicago, Illinois, under the firm name of D., B. & Co., and that said firm was dissolved by mutual consent on the 29th day of July, A. D. 1885, and that the said C. D. agreed to purchase the interest of the said complainant in the business, goodwill and assets of said firm, and the said A. B. agreed to transfer the same to him. That the amount to be paid to the said A. B. for his said interest was, by the agreement of the parties, submitted to T. U., as arbitrator, who made his award in writing, which was duly com- plied with by both parties, and the amount of said award was paid by the said C. D. to the said A. B., who thereupon executed and de- livered a bill of sale of his interest in the assets, business, and goodwill (744) Ch. 36] DE3CRBES. § 724 of the said firm to the said C. D. Tliat the sum so paid by the said C. D. for the transfer of the interest of the said A. B. was greater than the value of hisi interest in the assets, business, and goodwill of said D., B. & Co., and, the said award having been set aside, the said C. D. is now entitled to recover from said A. B. such balance a^,, may appear to be due to him. That the goodwill of the business of D. B. & Co., on the 29th day of July, A. D. 1885, was valueless. That there is now due and owing by the complainant to the defendant C. D. the sum of three thousand four hundred and three dollars and twenty-nine cents ($3,403.29), and that he is entitled to a decree there- for. That the said complainant is entitled to no relief whatever as against the defendants B. D. and E. F., and that as to them the bill should be dismissed: Now, therefore, on motion of X., H. & Z., solicitors for said defend- ants, it is by the court ordered, adjudged, and decreed that, as against the defendants B. D. and E. F., the bill of complaint herein be dismissed for want of equity. And it is by the court further ordered, adjudged, and decreed that the defendant C. D. do have and recover of and from the said com- plainant A. B. the sum of three thousand four hundred and three dol- lars and twenty-nine cents ($3,403.29), being the sum found due to the said C. D. from said complainant as aforesaid, together with the costs of this suit, to be taxed by the clerk of this court, and that, in default of payment thereof, execution issue therefor. And thereupon the saidi complainant, by his solicitor, prays an ap- peal to the appellate court for the first district, which is granted on condition that said complainant doth, within thirty days from date, execute and file a good and sufficient appeal bond in the penal sum of five thousand dollars, with surety to be approved by the clerk of this court. And it is further ordered that said complainant have until February 1, 1889, in which to prepare and file a certificate of evidence herein. § 724. Form of final decree. [Title of court and cause.] This cause coming on to be heard upon the bill of complaint herein, and the demurrer of the defendant thereto, and the court being ad- vised in the premises, and having fully considered the same, doth order that the said demurrer of said defendant be overruled, and the said defendant, electing to stand by said demurrer, and refusing to file further plea or answer, made default. It is therefore ordered that the said bill of complaint be taken as confessed, and thereupon the said cause coming on to be heard upon said bill taken as confessed, and the court being fully advised in the premises, doth find that the equities are with the complainant, that the allegations in said bill contained are true, and that the complain- ant is entitled to the relief prayed for in its bill of complaint. (745) §724 EQUITY PLEADING AND PRACTICE. [Ch. 3b- The court doth, therefore declare that, according to the true con- struction of the will of Walter L. Newberry, deceased, referred to in said bill of complaint, the limitations contained in said will and the codicil thereto, in and by which the trustees under said will were only authorized to make leases of the real estate of said decedent for terms not exceeding twenty (20) years, were confined to the period of the administration of the trust confided to the said trustees, and con- tinued only prior and up to the final division and distribution of the estate of said decedent; and that, upon the organization of the complainant under the act of the legislature of the state of Illinois entitled, "An act to encourage and promote the establishment of free public libraries in cities, villages, and towns in this state," approved June 17, 1891, in force July 1, 1891, and the conveyance to the said complainant by Eliphalet W. Blatchford, surviving trustee under the will of Walter L. Newberry, deceased, of so much of the estate of said decedent as was applied and set apart for the founding of a free pub- lic library, the provisions of the will of said decedent and the codicil thereto, limiting the power of the trustees under the said will to make leases of the real estate of said decedent to terms of twenty (20) years and under, did not become a part of the organic and funda- mental law of the said corporation; and the said complainant took the said real estate so conveyed to it free from the said limitations on the power of the said trustees to make leases therof. The court doth further declare that the provisions of the will of Walter L. Newberry, deceased, limiting the investments which the trustees thereof, during the administration of said trust, were author- ized to make, did not, upon the conveyance to the said complainant by Eliphalet W. Blatchford, surviving trustee under the will of Walter Li. Newberry, deceased, of that part of the estate of said decedent, as was applied and set apart by the said trustee for the purpose of founding a free public library, become a part of the organic and fundamental law of the said complainant. The court doth therefore order, adjudge, and decree that the said complainant holds the estate and property conveyed and transferred to it by Eliphalet W. Blatchford, surviving trustee under the will of Walter L. Newberry, deceased, and the proceeds thereof, free from the restrictions and limitations contained in said will and codicil relative to leases and investments, and that said complainant has the same powers over said estate and the proceeds thereof that it would have if the restriction in said will and codicil in regard to leases and in- vestments did not exist. The court doth further order that the complainant pay the costs of this suit, to be taxed by the clerk.ai 91 The above form is taken from Attorney General v. Newberry Li- brary, 150 111. 229, 37 N. B. 236. (746) Ch. 36] DECREES. § 726 § 725. Drawing decree. Under tke English practice, after the hearing was had, the chancellor pronounced his decree, and the registrar took minutes of it, and they were usually read over by him to the parties or their solicitors, and copies of such minutes were generally ap- plied for and furnished to the parties. If not satisfactory, by reason of their uncertainty, or if anything had been omitted, and the registrar refused to correct them, application might be made to the court to correct them. After the minutes were settled, the decree was then drawn up by the registrar, and de- livered to the party who demanded it. The decree having been returned, and an office copy taken by the adverse party, the next step to be taken was to have it passed and entered, till which was done, the decree was only inchoate.®^ In the United States, the decree is usually prepared by the solicitor for the party in whose favor or on whose application the decree is to be entered. He usually submits the same to the adverse party, and if there is no objection to the form thereof, it is presented to the court for its approval and entry. If there is objection, the draft of the proposed decree is presented to the court, and the form of the decree determined by it after hearing both par- ties.®^ It is held in Illinois that it has never been regarded as the duty of the clerk to draw decrees in chancery, but only to record them when drawn by counsel, and approved by the chancellor.®* § 726. Entry and enrollment. In most jurisdictions the decree is inchoate until it is ap- proved by the chancellor, or filed for record, or shall be recorded, which answers to the passing and entering it of the English 92 Hughs V. Washington, 65 111. 249; Porter v. Vaughan, 22 Vt. 269. 83 Stevens v. Coffeen, 39 111. 148; Schneider v. Seihert, 50 111. 285; Shute V. Morley Sewing Machine Co., 64 Fed. 368. 9* Schneider v. Seibert, 50 111. 285. For practice in the New York court of chancery, see 1 Barbour, Oh. Pr. 340 et seq.; Rogers v. Rogers, 2 Paige (N. Y.) 473; "Whitney v. Belden, 4 Paige (N. Y.) 140; Doe v. Green, 2 Paige (N. Y.) 352. (Y4Y) §726 EQUITY PLEADING AND PRACTICE. [Ch. 36 practice. The mere oral announcement by the chancellor of his decision, and of the grounds upon which it is based, or reducing them to writing, is no more than the minutes in the English practice. Until the final decree has been filed or recorded, the chancellor may alter, amend, change, or even disregard all he has said in his minutes. Before a final decree has been filed for record, or is recorded, the chancellor, on his own motion, may order a rehearing.*^ The recording, of the decree eorre- 95 Hughs V. Washington, 65 111. 246; Whitney v. Belden, 4 Paige (N. Y.) 140; 1 Barbour, Ch. Pr. 341. "In the court of chancery of England, the chancellor, it seems, after the hearing, pronounces the sub- stance of his decree orally, minutes of which are taken down by the register, who afterwards draws them out into the form of a decretal order; and if, in doing so, any mistake should occur, the execution of the order may be stayed awhile, until it can be corrected by motion in court. As thus drawn up, this judgment of the court is always called its 'decretal order.' But it has the force only of an interlocutory or- der, and is not a perfect, complete, and final decree before enrollment, for till then the chancellor may rehear, alter, or revise it. The proper officer draws up the form of the decree for enrollment from the decretal order, reciting all the pleadings, etc., after which a fair copy is made upon parchment, and signed by the chancellor. It is then, and not until then, an enrolled and final decree. The interval of time suffered to elapse between the making of the decretal order and the enrollment is seldom less than a month, — often more, — and in some cases exceeds a whole year. But in this interval the decretal order is so far considered as a final decree that it may be enforced by at- tachment. Gilbert, Forum Rom. 162; 1 Harrison, Ch. Pr. 77, 620; 2 Harrison, Ch. Pr. 174; 2 Maddock, Ch. Pr. 464; 2 Fowler, Exch. Pr. 164. The court of appeals have declared that 'the decree of the chancellor is subject to his control only upon a bill of review, or a bill in the nature of a bill of review. A bill of review lies after the decree is signed and enrolled. A bill in the nature of a bill of review lies after the decree is made, but before enrollment. A decree must be con- sidered as enrolled after it is signed by the chancellor and filed by the register.' Hollingsworth v. McDonald, 2 Bar. & J. (Md.) 237; Beames, Order Ch. 1; Digges' Lessee v. Beale, 1 Har. & McH. (Md.) 71. But the chancellor rarely, if ever, pronounces his decree orally, as in Eng- land, or, if he does do so in any case, no minutes of it are taken down. He is considered as having pronounced no judgment, nor as having made any decision in the cause, until a decree is drawn up in writing, in full and proper form, and signed by him. That decretal order, which in England always precedes the enrolled or final decree, is never made here, and is unknown to our practice, but in England the (748) Ch. 36] DECREES. § 727 sponds with enrollment in the English practice.®^ While a de- cree in chancery is the act of the court, the prevailing party is charged with the duty of seeing that it is properly enroUed.^^ In this country there is no enrollment, technically so called, and all decrees are deemed to be enrolled as of the term in which they are made.®^ § 727. Effect of enrollment or recording. A decree does not, strictly speaking, become a record of the court until it has been enrolled; and although the court itself, after it has been duly settled and entered, treats it as the foun- dation for ulterior proceedings, it is not considered as of a suffi- ciently permanent nature to entitle it, in other courts, to the same attention that is paid by one court of record to the records of other courts of the same nature.^® Until a decree has been enrolled, and thereby become a record, it is liable to be altered by the court itself, upon a rehearing, while a decree which has been enrolled is not susceptible of alteration except in a court of review, or by a bill of review.-'*"' The advantage to be ob- phrase 'decretal order' is often applied to various other orders besides that which immediately precedes the decree, and it is sometimes ap- plied in the same sense here." Burch v. Scott, 1 Bland (Md.) 112. 80 2 Daniell, Ch. PI. & Pr. (5th Ed.) 1475; Radge v. Berner, 30 111. App. 183; Shannahan v. Stevens, 38 111. App. ^74; Sagory v. Bayless, 13 Smedes & M. (Miss.) 153. 9T Stevens v. Coffeen, 39 111. 148; Freeman, Judgm. § 77; McRaney v. Coulter, 39 Miss. 390; Oglesby v. Foley, 46 111. App. 119. 98 Robinson v. Rudkins, 28 Fed. 8; Goelet v. Lansing, 6 Johns. Ch. (N. Y.) 75; Ansley v. Robinson, 16 Ala. 793; Fries v. Fries, 1 McArthur (D. C.) 291; Tabler v. Castle, 12 Md. 144; Sagory v. Bayless, 13 Smedes & M. (Miss.) 153; Cooper, Eq. PL 89; Story, Eq. PI. §§ 403, 404. It was said in an Illinois case that a decree is inoperative as a decree until it has re- ceived the file mark of the clerk, and that where the decree was pre- pared by the judge before the expiration of his term of ofiice, but was not filed until after his successor had been elected and qualified, it was a nullity. Russell v. Sargent, 7 111. App. 98. 90 1 Barbour, Ch. Pr. 342. 100 1 Barbour, Ch. Pr. 342. After the entry of record of the decree, subsequent proceedings must be by bill of review, or bill to impeach the decree in the nature of a bill of review, or some such subsequent (H9) § 728 EQUITY PLEADING AND PRACTICE. [Ch. 36 tained by enrollment of a decree is to prevent its being the sub- ject of a rehearing, and to enable the party benefited by it to plead it in bar to any new bill which may be filed against him, for any of the matters embraced by the bill upon which the decree is founded. ^°^ Until a decree is enrolled, it is consid- ered as merely interlocutory, and cannot be pleaded in bar to any chancery proceeding.^ "^ The enrollment of a decree re- lates back to the time of the decree, nunc pro tunc, and it is the same as if it be done at the time, to all intents and pur- poses. -^"^ A decree may be enrolled nutic pro tunc, but an or- der for that purpose is irregular, if the petition on which it is made does not set forth the date of the decree to be enrolled.^"* A decree may be enrolled, notwithstanding an abatement of the suit.^"^ It is said that it seems to have been at one time supposed that a decree for an account was never enrolled, but it was held in England that there was no rule preventing the enrollment of a decree which, among other things, directed the taking of accounts.^"* § 728. Nuiic pro tune decrees. The rule established by the general concurrence of the Ameri- can and English courts is that, where a delay in rendering a judgment or decree arises from the act of the court, as where the delay has been for its convenience, or has been caused by the mul- tiplicity or press of business, or the intricacy of the questions involved, or for any other cause, not attributable to the laches of the party, but within the control of the court, a judgment or decree may be entered retrospectively as of a time when it proceeding. Shannahan v. Stevens, 38 111. App. 571; Radge v. Berner, 30 111. App. 183; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Hugbs v. Washington, 65 111. 249. 101 1 Barbour, Ch. Pr. 342. 102 1 Barhour, Ch. Pr. 342. See, however, Bate^ v. Delavan, 5 Paige (N. Y.) 299. 103 Goelet V. Lansing, 6 Johns. Ch. (N. Y.) 75. 104 1 Barhour, Ch. Pr. 343; Parker v. Downing, 1 Mylne & K. 634. 106 1 Barbour, Ch. Pr. 344; Gartside v. Isherwood, 2 Dickens, 612. 106 1 Barbour, Ch. Pr. 346; Parker v. Downing, 1 Mylne & K. 634. (750) ■Ch. 36] DECREES. § 728 should or might have been entered. In such eases, upon the maxim Actus curiae neminem gravabit, which has been well .said to be founded upon justice and good sense, and to afford a safe and convenient guide for the administration of justice, it is the duty of the court to see that the parties do not suffer by the delay. Whether a nunc pro tunc decree shall be made •depends upon the circumstances of the particular case, and it .should be granted or refused, as the justice of the case may require.^"'' Where one of the defendants dies after the argu- ment of a case, and before it is decided, it is customary to enter the decree nunc pro tunc, so that it may have relation back to the day of the final hearing.^"* Where the complainant died .after an appeal, but the fact of his death was unknown to the counsel, and the cause was heard and decided upon appeal, it was held that the decree upon appeal might be entered nunc pro tunc as of a date previous to the death of the complainant, and after the entering of the appeal. -^"^ An enrollment nunc pro tunc will relate back to the time of the decree, and protect an intermediate sale.-'^" Such a decree is operative as between the parties from the prior day to which it relates, but it cannot affect the rights of any but parties before it is actually ren- dered. ^^^ If the decree is entered 7iunc pro tunc becaiise of death, the following recital and direction should be inserted: 107 Mitchell v. Overman, 103 U. S. 62. 108 1 Barbour, Ch. Pr. 341; Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334; City of New Orleans v. Gaines' Adm'r, 138 U. S. 612. 109 1 Barbour, Ch. Pr. 341; Vroom v. Ditmas, 5 Paige (N. Y.) 528. See, also. Wood v. Keyes, 6 Paige (N. Y.) 478; Lawrence v. Richmond, 1 Jac. & W. 241; Donne v. Lewis, 11 Ves." 601; Jesson v. Brewer, 1 Dickens, 371; Gunderman v. Gunnison, 39 Mich. 313; Harrison v. Si- mons, 3 Edw. Ch. (N. Y.) 394; Crislip v. Cain, 19 W. Va. 438; Burnham V. Dalling, 16 N. J. Eq. 310; Dawson v. Scriven, 1 Hill, Eq. (S. C.) 177, iioGoelet.v. Lansing, 6 Johns. Ch. (N. Y.) 75. Ill Dawson v. Scriven, 1 Hill, Eq. (S. C.) 177. See, for nunc pro tunc ' decrees, Hazard v. Durant, 14 R. I. 25; Emery v. Parrott, 107 Mass. 95; . Johnson v. Thomas, 2 Paige (N. Y.) 377; Gray v. Brignardello, 1 Wall. (U. S.) 627; Mitchell v. Overman, 103 U. S. 62; Newland v. Gaines, 1 jHeisk. (Tenn.) 720. (751) § 729 EQUITY PLEADING AND PRACTICE. [Ch. 36 "And it appearing by affidavit, to the satisfaction of this court, that the complainant, A. [or the defendant E.] has departed this life since the argument of this cause, it is further ordered that this decree be entered nunc pro tunc as of the day of ,19— .""2 § 729. Amendment and modification of decrees. Until a final decree has been filed or recorded, the chancellor may alter, amend, change, or even disregard all he has said in his minutes.^ ^* The court may do this at the suggestion of either party, or on its own motion.^^* Under the English chan- cery practice, all applications to vary the minutes of decrees were required to be made to the court or officer by which the decree was pronounced, and the chancellor had no power to alter the decree made by a vice-chancellor, except upon appeal. Therefore, where a decree had been made by Lord Cottenham when master of the rolls, an application to him, after he was lord chancellor, to vary the minutes of the decree, and which was not consented to, was refused.^ ^® As a general rule, a final 112 1 Barbour, Ch. Pr. 340. 113 Hughs V. Washington, 65 111. 245; 1 Barbour, Ch. Pr. 349; 1 New- land, Ch. Pr. 316; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661; Gibson v. Crehore, 5 Pick. (Mass.) 146; Porter v. Vaughan, 22 Vt. 269; Willis v. Farrer, 2 Younge & J. 241; Harwood v. Fisher, 1 Younge & C. 110; Grey v. Dickenson, 4 Madd. 464. "As long as the decree remains in the shape of minutes, — that is, until it has been settled and entered by the register, — it may be rectified upon application to the court by petition or motion; and even important matters may be brought before the court upon an application to vary the minutes. Thus, where the court directed an issue to be tried at the next assizes, and the decree was not drawn up or passed in sufficient time, the min- utes were varied by directing the trial of the issue at the subsequent assizes. So, where the facts are stated in the answer, which are not contradicted, and which, if true, would lead to a material alteration in the frame of the suit, the court will, on motion, permit the minutes of the decree to be amended, with a view to ascertain the truth of those facts." 1 Barbour, Ch. Pr. 349; Grey v. Dickenson, 4 Madd. 464; 1 Newland, Ch. Pr. 316; Webber v. Hunt, 1 Madd. 13; Willis v. Farrer, 2 Younge & J. 241; Hardwood v. Fisher, 1 Younge & C. 110. 114 Witters v. Sowles, 32 Fed. 130. 115 1 Barbour, Ch. Pr. 349, 350; Reece v. Reece, 1 Mylne & C. 372. It Is (752) Ch. 36] DECREES. § 729 decree does not pass beyond tlie power of the court to modify or vacate it until after tlie expiration of the term in which it was entered.^ ^® After the lapse of the term at which the final decree was entered, alterations or amendments thereto, upon motion, are not allowed as a general rule. The exceptions are confined to mere clerical errors, errors of form, or matters quite of eourse.^-^'^ Though the minutes of the decree may be cor- rected in certain instances, yet, after the decree has been set- tled and entered, the court will not entertain any application to vary it, unless upon consent of all parties, or in respect to mat- ters which are quite of course; as where a decree is obviously wrong, or there is a clear mistake made by the court or counsel in drawing it up. The proper method of having a decree rec- tified in matters of substance is by applying to have the cause reheard.^^® ISTo alteration can be made in a decree, on motion, without a rehearing, except in a matter of clerical error or form, or where the matter to be inserted is clearly consequential on the directions already given. ^^® Errors in judgments or de- crees are divided into errors clerical and errors judicial. The former may be amended even after the term, provided the ex- istence of such error is shown by the record, and not other- competent for a judge other than the one who presided at the hearing to amend a decree so as to show the true amount due. Palmer v. Harris, 100 111. 276. iieFrink v. King, 4 111. 144; Bronson v. Schulten, 104 U. S. 410; Burch V. Scott, 1 Bland (Md.) 112; Pattison v. Josselyn, 43 Miss. 373; I'raker v. Brazelton, 12 Lea (Tenn.) 278. A final decree cannot he modified after the term. Petersburg Sav. & Ins. Co. v. Dellatorre, 30 U. S. App. 504, 70 Fed. 643; Williams v. Banks, 19 Md. B24; Garling- ton V. Copeland, 32 S. C. 57, 10 S. E. 616. 117 Lilly v. Shaw, 59 111. 72. 118 1 Barbour, Ch. Pr. 350; 1 Newland, Ch. Pr. 317; Gardner v. Bering, 2 Edw. Ch. (N. Y.) 131; Bennett v. Winter, 2 Johns. Ch. (N. Y.) 205; Rogers V. Rogers, 1 Paige (N. Y.) 189; Hendricks v. Robinson, 2 Johns. Ch. (N. Y.) 484. 118 1 Barbour, Ch. Pr. 351; Clark v. Hall, 7 Paige (N. Y.) 382; Willis V. Parkinson, 3 Swanst. 233; Colman v. Sarell, 2 Cox, 206; Brookfield V. Bradley, 2 Sim. & S. 64. (Y53) Equity — 48 §729 EQUITY PLEADING AND PRACTICE. [Ch. 36 wise.^^" A decree may be corrected or amended on motion or petition, not only as to mere clerical errors, but by the inser- tion of any provision or direction whicb would bave been in- serted as a matter of course, if the same had been asked for at the hearing as a necessary or proper clause to carry into effect the decision of the court.-'^^^ Errors judicial can only be amend- ed upon a rehearing or appeal, or by bill of review.^ ^^ A decree cannot, however, be rectified by way of further directions. Fur- ther directions are not given upon motion. They are only grant- ed upon a hearing after a master's report, or upon the cause com- ing on again for the purpose, in pursuance of a former order or decree. The court may then add to a decree. But upon a hear- 120 Hudson V. Hudson, 20 Ala. 364; Thompson v. Miller, 2 Stew. (Ala.) 470; Dixon v. Mason, 68 Ga. 478; Russell v. McDougall, 3 Smedes & M. (Miss.) 234; Atkinson v. Atchison, T. & S. F. R. Co., 81 Mo. 50; Selz V. First Nat. Bank of Ft. Atkinson, 60 Wis. 246, 19 N. W. 43; Hop Bitters Mfg. Co. v. Warner, 28 Fed. 577. See, also, supra, § 440. The court may, at a subsequent term, amend its decree by correcting the name of a party, where it clearly appears from the pleadings and from the decree itself that the name given was inserted in place of another by some clerical error, and no question was raised as to the rights of the person whose name was given. Davenport v. Kirkland, 156 111. 169, 40 N. E. 304. A decree cannot be amended after the term to make it appear that it was rendered on a second amended bill, changing the cause of action, instead of upon an original bill, where such amendment is one of substance. Adams v. Gill, 158 111. 190, 41 N. E. 738. 1211 Barbour, Ch. Pr. 350; Clark v. Hall, 7 Paige (N. Y.) 382. See Tomlins v. Palk, 1 Russ. 475; Lawrence v. Cornell, 4 Johns. Ch. (N. Y.) 546; Wallis v. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293. i22Forquer v. Porquer, 19 111. 68; Stringer v. Anderson, 23 W. Va. 482; Hop Bitters Mfg. Co. v. Warner, 28 Fed. 577. See, also, Hurd v. Goodrich, 59 111. 450; Lilly v. Shaw, 59 111. 72; Cooley v. Scarlett, 38 111. 316. While a court will not vary or alter an enrolled decree in a ma- terial point without a bill of review or a rehearing, it will, upon peti- tion, amend its enrolled decree, when an amendment is necessary to give full expression to its judgment, and is matter which would, with- out doubt, have been incorporated in the decree when made if atten- tion had been called to it. Dorsheimer v. Rorback, 24 N. J. Bq. 33; Jones V. Davenport, 45 N. J. Eq. 77, 17 Atl. 570; Lynde v. Lynde, 54 N. J. Eq. 473, 35 Atl. 641. (754) Ch. 36] DECREES. § 731 ing for furtlier directions -upon points of equity reserved, the court cannot materially alter or vary the first decree.^ ^^ § 730. Power to modify manner of enforcement. While a court has no power to modify a final decree after the term at which it was rendered, in so far as it determines the rights of the parties, it nevertheless retains the inherent power to modify, by a subsequent order, the time of its enforcement, or the manner in which it shall be enforced.^^* § 731. Applications to amend or modify decrees. Applications to the court to rectify decrees should be made within a reasonable time; otherwise they will not be granted.-' ^^ The ii I plication to rectify or amend a decree before enrollment, in matters of form, or where there is a clear mistake, may be made either by motion or upon petition.^^® ITotice of the pro- posed amendment should be given to the opposite party.-' ^^ 123 1 Barbour, Ch. Pr. 351; Creuze v. Hunter, 2 Ves. Jr. 164; Gardner V. Bering, 2 Ed-w. Ch. (N. Y.) 131; Parnell v. Price, 14 Ves. 502; Le Grand v. Whitehead, 1 Russ. 309. See, for hearing on further direc- tions, post, §§ 740, 741. Where, by inadvertence, several matters of import in a case, and necessary to its complete adjudication, and which should have been embodied in the decree, -were omitted, the court, upon application by petition or motion, will rectify the error and embody the omitted matters in the final adjudication by a supplemental decree. Oliver Finnie Grocery Co. v. Bodenheimer, 77 Miss. 415, 27 So. 613; Clark v. Hall, 7 Paige (N. Y.) 382; Jarmon v. Wiswall, 24 N. J. Eq. 68; Pipkin v. Haun, Freem. Ch. (Miss.) 254. 124 Mootry v. Grayson, 104 Fed. 613 ; Turner v. Indianapolis, B. & W. Ry. Co., 8 Biss. 380, Fed. Cas. No. 14,259; Turner v. Farmers' Loan & Trust Co., 106 U. S. 552; Farmers' Loan Co. v. Oregon Pac. R. Co., 28 Or. 44, 40 Pac. 1089; Monkhouse v. Corporation of Bedford, 17 Ves. 380; Edwards v. Cunliffe, 1 Madd. 287; Dawes v. Thomas, 4 Gil] (Md.) 333; Spann v. Spann, 2 Hill Eq. (S. C.) 152; Baird v. Shepherd, 2 Ohio, 261; Malone v. Marriott, 64 Ala. 486; Cochran v. Miller, 74 Ala. 50; Bound v. South Carolina Ry. Co., 55 Fed. 186. While the court has no power, after enrollment, to amend the decree without a rehearing, it retains the power to modify, by a subsequent order, the time of its enforce- ment. Cadotte v. Cadotte, 120 Mich. 667, 79 N. W. 932. 125 1 Barbour, Ch. Pr. 352; Rogers v. Rogers, 1 Paige (N. Y.) 188. 128 1 Barbour, Ch. Pr. 351; Clark v. Hall, 7 Paige (N. Y.) 382; Wallis (755) § 732 EQUITY PLEADING AND PRACTICE. [Ch. 36 As to the manner of rectifying, it is laid down, that, where the alteration asked for is merely consequential upon the decree itself, or the addition of some direction which has been omitted, the omission will be supplied by a distinct order, without al- tering or interlining the decree itself. But in cases of er- ror in the direction of the decree, where alteration cannot be made by a supplemental order, the court will direct the clerk to attend with his book, and make the alteration in open court, which the chancellor will countersign with his initials.-'^* A decree may be amended by a nunc pro tunc entry, so as to make it speak the truth ;^^® but this cannot be done after the term, except on evidence which is a matter of record or quasi rec- ord.i3» § 732. Opening decrees. Efforts to reopen a final decree are not encouraged. -^^^ The applicant must not be guilty of laches.^*^ As a rule, a court may set aside its decree at the same term in which it was en- V. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293; Brown v. Sansome, 9 Price, 479; Grey v. Dickenson, 4 Madd. 464; Murray v. Blatchford, 2 "Wend. (N. Y.) 221; Rogers v. Rogers, 1 Paige (N. Y.) 188; Long v. Cole, 72 N. C. 20; Dorsheimer v. Rorback, 24 N. J. Bq. 33; Jarmon v. Wiswall, 24 N. J. Eg. 68. 127 Bryant v. Vix, 83 111. 11; Palmer v. Harris, 100 111. 276; Berry v. Innes, 35 Mich. 189; Doggett v. Emerson, 1 Woodb. & M. 1, Fed. Cas. No. 3,961; Swift v. Allen, 55 111. 303. When the amendment of a decree lessens the amount of a decree against him, defendant cannot complain that it was allowed without notice to him, though correct practice might require that he should be notified thereof. Palmer v. Harris, 100 111. 276. 128 Hawker v. Buncombe, 2 Madd. 391; 1 Barbour, Ch. Pr. 352; Tom- lins V. Palk, 1 Russ. 476; Lane v. Hobbs, 12 Ves. 458; Clark v. Hall, 7 Paige (N. Y.) 382; Lovejoy v. Irelan, 19 Md. 56. i2BHershy v. Baer, 45 Ark. 240. 130 Kemp V. Lyon, 76 Ala. 212. isiLockwood V. Cleveland, 20 Fed. 164; Barry v. Barry, 1 Md. Ch. 20. 132 Larue's Heirs v. Larue's Ex'rs, 3 J. J. Marsh. (Ky.) 156; Barry V. Barry, 1 Md. Ch. 20. (Y56) Ch. 36] BECREBS. § 733 tered.^'* In most jurisdictions, after the term at which the decree was rendered, the court has no power to set it aside.^^* Decrees by consent, obtained without fraud or misrepresenta- tion, can only be set aside by consent.^*® § 733. Enforcement of a decree. If the party against whom a decree is rendered does not ap- peal from the same within the time limited by law, the oppo- site party proceeds to enforce the same by process of the court. It is a general principle that a court of equity has power to issue all processes necessary to carry its decrees into effectual execu- tion.^^® The power of the court for this purpose, like that of compelling appearance or answer, was originally confined to the process of contempt. If the order disobeyed was for ap- pearance and answer, disobedience was a contempt of the subpoena; if for the performance of the decree, it was a contempt of another writ, issued under the great seal, termed a "writ of execution." In either case the process of eon- tempt was by the five successive steps of attachment, attachment with proclamations, writ of rebellion, sergeant at arms, and sequestration, or, in the case of a privileged person, by seq- uestrations nisi and absolute, and, in that of a corporation, by distringas and sequestration. The only differences were that an attachment for nonperformance of a decree was not, like an attachment on mesne process, a bailable writ; that, in the particular instance of a decree for delivering up an estate, 133 Doss V. Tyack, 14 How. (TI. S.) 297. 134 Cameron v. McRoberts, 3 Wheat. (U. S.) 591; Fries v. Fries, 1 MacArtliur (D. C.) 291;. Brady v. Hamlett, 33 Ark. 105; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; McGregor v. Vermont Loan & Trust Co., 104 Fed. 709, citing approvingly Beach, Mod. Bq. Pr. § 983. TTnited States Equity Rule 88 makes an exception where no appeal lies to the supreme court of the United States. Moelle v. Sherwood, 148 U. S. 21. 135 White V. Walker, 5 Fla. 478. See Hammond v. Place, Har. (Mich.) 438. See supra, §§ 432, 704, 711. 136 1 Barbour, Ch. Pr. 440, 441; Ludlow v. Lansing, Hopk. Ch. (N. Y.) 231; Durbin v. Durbin, 71 111. App. 51. (757) §734 EQUITY PLEADING AND PRACTICE. [Ch. 36 the court might efEectuate its own order by issuing a writ of assistance to the sheriff, commanding him to put the complain- ant in possession ; and that, on a decree £or payment of money, the receipts under a sequestration, though intended as a means of punishment, might indirectly operate as a performance.^*^ Statutes and rules of court are frequently found relative to the enforcement by the court of its decree.^*® § 734. Executions. The first step to enforce the execution of a decree, if the party against whom it is issued refuses or neglects to obey it, is a writ of execution, which is a process of the court of chan- cery, under its seal, reciting a decree of the court, or the sub- stance or some part thereof, and requiring obedience to so much of the ordering part as is recited, and as it concerns the party to perform.-'*® Statutes in most jurisdictions provide for the issuance of an execution against the property of the defendant, which is delivered to an officer, who levies thereon, and sells the same, pursuant to said statute, and thus realizes, in the event of A money decree, the sum due to the complainant. The practice in regard to such executions is regulated by the statutes and rules of court of the particular jurisdiction. Where the de- cree was other than for the payment of money, under the Eng- lish chancery proceedings, before the party could be proceeded 137 Adams, Eq. 393. Mr. Foster, in his valuable and exhaustive work on Federal Practice, classifies the method of enforcement of decrees and orders under seven heads: (1) By writ of execution; (2) by compel- ling obedience by attaching the delinquent party for contempt; (3) by the writ of sequestration; (4) by the writ of assistance; (5) by the ac- tion of the court, through the medium of a master; (6) by the action of the court by means of a receiver; and (7) by bills to carry the decrees into execution. See Foster, Fed. Pr. §§ 339-349a, where the enforce- ment of decrees and orders, and the subject of contempts, are consid- ered by the learned writer in his usually clear and concise style. See, for enforcement of decree or order by contempt proceedings, supra, §§ 534-559. For bills to carry decrees into execution, see post, § 959. 138 See United States Equity Rule 10; Rev. St. 111. c. 22, § 47. 130 1 Barbour, Ch. Pr. 441. (758) Ch. 36] DECREES. § 73S against as for a contempt for not performing the decree, a writ of execution commanding him to obey the decree was required to be issued and served upon him. If the party neglected to perform the decree, the court, upon affidavit of service of the writ of execution, and of the party's disobedience, would make an order that he be proceeded against by the ordinary process of contempt.^*" § 735. Sequestration. The writ of sequestration was one of the oldest writs in chan- cery, and empowered sequestrators to take the goods and per- sonal estate and enter on the real estate of the defendant, and sequester the rents and profits, and retain or pay over the same as the court might direct, until the defendant performed the decree.^*^ Writs of sequestration are rarely used in modern practice. If the decree is for the payment of money, the usual process is a writ of execution ; if for the performance of a per- sonal act, process of contempt is employed. Where a writ of execution is allowable, manifestly there would be little occa- sion for sequestration, and the modern use of proceedings by at- tachment for contempt are usually sufficient to enforce the per- formance of any act required of the defendant. The process of sequestration, although it has gone almost out of use since the statutes allovdng an ordinary execution against the real, as well as the personal, property of the party to enforce the payment of money decreed by a court of chancery, may be properly resort- ed to as a means of enforcing the performance of other decrees where an attachment cannot be served, or where the defendant chooses to remain in prison after his commitment for contempt of the court. It would seem, also, that choses in action, un- der certain circmnstances, may be effectually seized by seq- uestrators, although they cannot be seized and sold by the sher- iff under execution.^^^ 1*0 1 Barbour, Ch. Pr. 441; Blake, Ch. Pr. 168. i« Adams, Eq. 324; 1 Hoffman, Ch. Pr. 145-160; Foster, Fed. Pr. § 347. See United States Equity Rules 7, 8. i«2Hosack V. Rogers, 11 Paige (N. Y.) 603. See, also, Keighler v. (759) §736 EQUITY PLEADING AND PRACTICE. [Ch. 36 § 736. Writ of assistance. The writ of assistance commands the proper officer of the court to put the complainant in the possession of certain prop- erty, to which, by the decree of the court, he is entitled.^** It is said that, in the execution of this writ, the sheriff may call to his aid the power of the county, and may break open all necessary doors, if the possession be not quietly delivered.^** The writ is often used to put into possession receivers and seq- uestrators. It is not issued without an order for that purpose. It commands the proper officer to eject the defendant from the land, and put the complainant in possession, and is executed in the same manner as the writ of habere facias possessionem is executed in favor of a successful plaintiff in an action of ejectment.^ *^ It is held that the writ can issue on the applica- tion of no one except a party to the suit.-'*® But a purchaser at a sale under a decree is deemed to be a party, within the rule.^*^ It will not issue against any but a party to the suit in which it was sought, or his representative, or one coming into possession pendente lite}'^^ It is only allowed when the right is clear.^*^ Ward, 8 Md. 258; Grew v. Breed, 12 Mete. (Mass.) 363, 46 Am. Dec. 687; National Docks & N. J. J. C. Ry. Co. v. Pennsylvania R. Co., 54 N. J. Eq. 167, 33 Atl. 936; White v. Geraerdt, 1 Bdw. Ch. (N. Y.) 336; Geery V. Geery, 63 N. Y. 252; Wilson v. Metcalfe, 1 Beav. 269; Francklyn v. Cohoun, 3 Swanst. 309. "3 Adams, Eq. 393; Foster, Fed. Pr. § 348; Oglesby v. Pearce, 68 111. 220; Taylor v. Ellenberger, 134 Cal. 31, 66 Pac. 4. 14* Crocker, Sheriffs, § 573. 145 Comer v. Felton, 22 U. S. App. 313, 61 Fed. 734, quoting approv- ingly Foster, Fed. Pr. § 348. 146 Wilson V. Polk, 13 Smedes & M. (Miss.) 132, 51 Am. Dec. 151. 14T Jones V. Hooper, 50 Miss. 510. 148 Ricketts V. Chicago Permanent Building & Loan Ass'n, 67 111. App. 71; Comer v. Felton, 22 U. S. App. 313, 61 Fed. 731; Terrell v. Allison, 21 Wall. (U. S.) 289; Howard v. Milwaukee & St. P. Ry. Co., 101 U. S. 849; Paine v. Root, 121 111. 77, 13 N. B. 541; McChord's Heirs V. McClintock, 5 Lift. (Ky.) 304; Gelpeke v. Milwaukee & H. R. Co., 11 Wis. 454; Van Hook v. Throckmorton, 8 Paige (N. Y.) 33. See Mus- grove v. Gray, 123 Ala. 376, 26 So. 643. 149 National Building & Loan Ass'n v. Strauss (N. J. Eq.) 49 Atl. 137; Barton v. Beatty, 28 N. J. Eq. 412; Blauvelt v. Smith, 22 N. J. Eq. 31; (Y60) Ch. 36] DECREES. § 737 And it is not customary to issue the writ where there is a bona fide contest as to the right to possession of the property, or where the rights of the respective parties have not been fully adjudicated in the principal suit. Its issuance is discretionary with the court.^''* Facts showing its necessity must be presented to the court.^®^ There is a difference of opinion concerning the necessity of giv- ing notice therefor. As between the parties and those claiming under them, it is said that the defendant is not entitled to such notice ;^''^ but it is held that the person in possession should have notice of the application for the writ, and is entitled to be heard thereon.^^' S 737. Execution of documents. Where the decree directs deeds or other instruments to be executed by a party to the suit, the ordinary process for con- Hooper V. Yonge, 69 Ala. 484. See for instances when proper: Com. V. DiefEenbach, 3 Grant Cas. (Pa.) 368; Gormley v. Clark, 134 TJ. S. 338; Garretson v. Cole, 1 Har. & J. (Md.) 370, where the form of the writ is set out; Stillwell v. Hart, 40 App. Div. 112, 57 N. Y. Supp. 639; Ex parte Porman (Ala.) 30 So. 480. 150 Vanmeter v. Borden, 25 N. J. Ea. 414; Roach v. Clark, 150 Ind. 93, 48 N. E. 796; Shenck v. Conover, 13 N. J. Eq. 220; Wiley v. Carlisle, 93 Ala. 238, 9 So. 288; Knight v. Houghtalling, 94 N. C. 411; Hay ward T. Kinney, 84 Mich. 591, 48 N. W. 170; Ramsdell v. Maxwell, 32 Mich. 285; Ex parte Jenkins, 48 S. C. 686, 26 S. B. 686. 151 Bruce v. Roney, 18 111. 67; Oglesby v. Pearce, 68 111. 220; Cook v. Moulton, 68 111. App. 480. 152 Harney v. Morton, 39 Miss. 508. issBlauvelt v. Smith, 22 N. J. Eq. 31; Jones v. Hooper, 50 Miss. 510; Waters v. Duvall, 6 Gill & J. (Md.) 76; Hooper v. Yonge, 69 Ala. 484. The practice in Illinois, where the decree orders the defendant, on the execution of a deed by a master in chancery, to surrender possession, is to serve a copy of the decree on the defendant in possession, or, if others are in under him as purchasers, tenants, or otherwise, then upon them, and, on possession being refused, the writ of assistance directed to the sheriff to put the purchaser into possession issues, as of course, on motion and without notice. Oglesby v. Pearce, 68 111. 220. For practice in Michigan, see Aldrich v. Wayne Circuit Judge, 111 Mich. 525, 69 N. W. 1108; Howard v. Bond, 42 Mich. 133, 3 N. W. 289; Baker V. Pierson, 5 Mich. 456. For practice in Alabama, see Musgrove v. (761) § 738 EQUITY PLEADING AND PRACTICE. [Ch. 36 tempt must be employed to enforce tlieir execution.^** In some jurisdictions, a master or other officer of the court is au- thorized by statute to execute conveyances which, previous to the passing of the act authorizing it, vsrere required to be executed by the parties.^®^ A question has arisen concerning the effect of a deed of property, situated in one state, executed in another state by such master or other officer, in pursuance of a decree of a court in such latter state. It is held that such a deed is void.^*" § 738. Sales of property — ^By whom conducted. It frequently becomes necessary for the court to order the sale of property involved in the litigation. The manner of con- ducting such sales, the notice required to be given thereof, and the persons authorized to conduct the same are usually pro- vided for by statute or rule of court. Sales of premises under a decree in chancery are usually made by a master or commis- sioner, or under the iromediate direction of such officer, who may, however, employ an auctioneer merely to conduct the sale in his presence.^®'^ Masters' sales are usually managed by the solicitor for the complainant, and it is held that he is, in all ques- tions which may arise between the vendor and purchaser, to be considered as the agent of all the parties to the suit.^** Il^otice is usually required to be given where property is sold. The re- quirements of such notice are usually specified by either a stat- ute, rule of court, or the decree directing the sale. The master or commissioner directed to sell such property draws up a notice of the time and place of sale, containing a description of the Gray, 123 Ala. 376, 26 So. 643. For practice in federal courts, see Foster, Fed. Pr. § 348; Beach, Mod. Eq. Pr. §§ 897-902. For form of order au- thorizing writ, see Cook v. Moulton, 68 111. App. 481. 154 1 Barbour, Ch. Pr. 441; Ormshy v. Nicholson, Vern. & S. 115. 155 1 Barhour, Ch. Pr. 441. See Foster, Fed. Pr. § 349. 156 Watts V. Waddle, 6 Pet. (U. S.) 389; Morris v. Hand, 70 Tex. 481, 8 S. W. 210; Burnley v. Stevenson, 24 Ohio St. 474; Gibson v. Burgess, 82 Va. 650; Page v. McKee, 3 Bush (Ky.) 135; Poindexter v. Burwell, 82 Va. 507. 157 1 Barbour, Ch. Pr. 525; Heyer v. Deaves, 2 Johns. Ch. (N. Y.) 154. 168 Dalby v. PuUen, 1 Russ. & M. 296. (762) Ch. 36] DECREES. § 738 property to be sold. It is usual to insert in such, notice the title of the cause.^^® It is proper to insert such title in the notice by stating the names of the first complainant and first defendant, and adding the words "and others," where there are several com- plainants and defendants.^*" Although a residuary legatee, or tenant for life, or the owner of a reversionary interest, may be- come the purchaser at a sale under order of the court, it is nec- essary, if he be a party to the record, that he should have a pre- vious order to warrant his being admitted as a bidder at the sale, and the court will not permit a party having such an order to conduct the sale.^*^ If a master's conduct is grossly oppress- ive and improper, upon a sale by him it will be ordered to be set aside, and, under certain circumstances, the costs of so do- ing, and of subsequent proceedings, have been taxed against him.^®* In ordinary sales by auction or private agreement, the contract is complete when the agreement is signed, but a different rule prevails in sales by a master. In such cases, the purchaser is not considered as entitled to the benefit of his con- tract till the master's report of the purchaser's bid is absolutely confirmed.-'*^ Under the English practice, in order to obtain the benefit of his contract, the purchaser, at his own expense, procured a report from the master's office of his being the high- est bidder for the property.-*®* In most jurisdictions the com- plainant procures and files the master's report of sale.^*® After the master's report has been filed, the court enters an order that the sale may be confirmed. It is usually provided that the sale may be confirmed unless cause is shown against it within a specified number of days, and, if no such cause is shown with- ies i Barbour, Ch. Pr. 526. 160 Ray V. Oliver, 6 Paige (N. Y.) 489. 161 1 Barbour, Ch. Pr. 527; Williams v. Attenborough, Turn. & R. 76; Domville v. Berrington, 2 Younge & C. 724. 162 Baring v. Moore, 5 Paige (N. Y.) 48. 163 1 Barbour, Ch. Pr. 529. 16* 1 Sugden, Vend. 59. 165 1 Barbour, Ch. Pr. 529. (763) § 739 EQUITY PLEADING AND PRACTICE. [Ch. 36 in that time, the order shall hecome absolute of course.^®* It is a settled maxim of equity that persons purchasing under a decree of the court are bound to see that the sale is made ac- cording to the decree. It is also the business of the purchaser to see that all the persons who are necessary to convey are be- fore the court, for, if he takes a title under a decree which an imperfect suit does not protect, he must abide the consequen- ces.^®^ A purchaser is not bound to see to the application of the purchase money. IlTeither is he affected by irregularities or defects in the decree, by which the application of the money may not have been properly secured.^®* He is entitled to the profits of the estate from the time fixed upon for completing the contract, whether he does or does not take possession of the es- tate; and as from that time the money belongs to the vendor, the purchaser will be compelled to pay interest for it, if it be not paid at the day.^** § 739. Lien of decrees. Statutes are found in most jurisdictions making a decree for the payment of money a lien upon the property of the defend- ant. The steps necessary to perfect and maintain, and the duration of, and the means of enforcing, such lien, are de- pendent upon local regulation, and it is impracticable to here consider the requirements of the respective jurisdictions.^'''' 166 1 Barbour, Ch. Pr. 529. 167 1 Barbour, Ch. Pr. 529; Colclough v. Sterum, 3 Bligh, 181. 168 Curtis V. Price, 12 Ves. 89. 169 1 Barbour, Ch. Pr. 530; 2 Sugden, "Vend. 1. For rules as to the payment of interest, see Anson v. Towgood, 1 Jac. & W. 637; Esdaile v. Stephenson, 1 Sim. & S. 122; Barker v. Harper, Coop. 32; Trefusis v. Clinton, 2 Sim. 359. 170 See Act Cong. Aug. 1. 1888 (25 Stat. 357), where it is provided that judgments and decrees rendered in a federal court within any state shall be liens on property throughout such state, to the same ef- fect and under the same conditions only as if such judgments and de- crees had been rendered by a court of general jurisdiction in such state; provided that, when such state requires a judgment or decree of a state court to be registered, recorded, docketed, or indexed in a par- ticular manner, or in a certain office, before a lien shall attach, the (764) Ch. 36] DECREES. § 739 federal statute shall apply therein whenever the laws of such state au- thorize the judgments and decrees of the federal courts to be registered or otherwise conformed to the rules relating to state judgments or de- crees; and providing for the keeping, by the clerks of the several federal courts, of indexes of judgment records; and also declaring that nothing therein shall be construed to require the docketing of the judgment or decree of a federal court, or the filing of a transcript thereof, in any state office within the same county (or parish, in the state of Louisiana) in which the judgment or decree is rendered, in order that such judgment be a lien on property within such county. "Judgments and decrees of courts of the United States held within this state [Illinois], and all writs, returns, certificates of the levy of a writ, and records of said courts, may be registered, recorded, dock- eted, indexed, or otherwise dealt with in the public offices of this state, so as to make them conform to the rules and requirements relating to judgments and decrees of courts of this state." Starr & C. Ann. St. 111. c. 77, par. 80. See, for consideration of this question, Foster, Fed. Pr. § 378. (765) CHAPTER XXXVII. FURTHER DIRECTIONS. § 740. In general. A decree made witkout any reservation of further directiona constitutes a final decree, and, after it has been pronounced, the cause is at an end, and no further hearing can be had.^ When further directions are reserved by a decree or order, it becomes necessary to set the cause down for hearing for such further directions.^ The consideration of further directions is only reserved in decrees and decretal orders. In other orders, the reservation is : "Upon the coming in and confirmation of said master's report, such further order may be made in the prem- ises as shall be just."* Where a decree is interlocutory, and the consideration of further directions has been reserved until after the trial of an issue, or until the coming in of the master's report, or some other step in the cause, it is necessary, in order that a complete termination may be put to the suit, that it should again be set down to be heard for further directions, which process must be repeated, as often as any further direc- tions are reserved by the last decree pronounced.* Where a 1 Adams, Eq. 388. 2 1 Barbour, Ch. Pr. 559. SI Barbour, Ch. Pr. 558; 2 Smith, Ch. Pr. 395. * 1 Barbour, Ch. Pr. 558. " 'Further directions' are not given upon motion. They are only granted upon a hearing after a master's report, or upon the case coming on again for the purpose, in pursuance of a former order or decree. The court may then add to a decree, for In- stance, by allowing interest upon a sum reported by the master to be due (Creuze v. Hunter, 2 Ves. Jr. 164), or by declaring what are the rights of parties as ascertained under the first order or decree, and thus carry out and effectuate the object of the suit; but, upon a hearing for further directions on points or equity reserved, the court cannot mate- (Y66) Ch. 37] FURTHER DIRECTIONS. § 740 decretal order is made upon motion, the court will proceed upon the report on motion.® The course of proceedings upon a hear- ing of a cause on further directions is much the same as that pursued upon the original hearing, except that the pleadings are not opened, nor are any proofs read but those which were read before the master.® Under the English practice, the fur- ther directions were opened by complainant's counsel, who read or stated the effect of the ordering part of the decree, and so much of the report as was necessary to enable the court to de- cide the questions before it.'' And if default was made by any party in appearing, upon the production of an affidavit of serv- ice, an absolute order was pronounced, and not an order nisi, as upon the original hearing.* If exceptions have been taken to the master's report, and have been set down at the same time v^ith the further directions, they must be heard and disposed of before the cause is heard upon the further directions.^ As the court, upon the hearing of further directions, will not enter •on any matter extraneous to the decree, or receive any evidence beyond the report, wherever such matter arises, it is neces- sary to present a petition, to come on to be heard together with the further directions.-"' Thus, if any new facts have oc- 'Curred since the original decree which have altered the situation ■of the parties, or affected their rights in the subject-matter, and which have not been brought before the court by a supplemental isuit, these facts may be stated in a petition, which may be or- rially alter or vary the first decree (Parnell v. Price, 14 Ves. 502)." ►Gardner v. Bering, 2 Edw. Ch. (N. Y.) 131. 5 1 Barbour, Ch. Pr. 559; Brooke v. Clarke, 1 Swanst. 550; Walters v. Pyman, 19 Ves. 351; Shore v. Collett, Coop. 234. See, for when case may be heard on further directions, Dixon v. Olmius, 1 Ves. Jr. 153; Lupton V. "White, 15 Ves. 432; Cooke v. Gwyn, 3 Atk. 689; Anonymous, 11 Ves. 169. e 1 Barbour, Ch. Pr. 560. 7 1 Barbour, Ch. Pr. 561. s 1 Barbour, Ch. Pr. 560. s 1 Barbour, Ch. Pr. 560. 10 1 Barbour, Ch. Pr. 560. See Lewis v. Loxam, 1 Mer. 179; Parnell -V. Price, 14 Ves. 502; 2 Smith, Ch. Pr. 400. (76Y) §740 EQUITY PLEADING AND PRACTICE. [Ch. 37 dered to be heard at the same time with the cause for further directions.^ ^ A person interested in the report, though not a party to the suit, is entitled, without presenting a petition, to appear, if he is satisfied to take advantage only of that which is to be found in the report ; but if he has a case to make, de- pending upon any fact which does not appear upon the master's report, he cannot be heard without presenting a petition and proving that fact.^^ Upon the hearing on further directions, if a party has not excepted to the master's report, he is con- cluded by the findings therein ; but if all the circumstances ap- pear upon the face of the report, a question decided by the mas- ter may be opened on further directions, without any exceptions having been taken.^* So, if the master has exceeded his au- thority, and a party has omitted to take exceptions, he is not concluded by the confirmation of the report.-^* A party can- not, on the hearing for further directions, object to evidence which has been entered in the decree as read, on the ground that the vtdtness is interested, or on any other ground, the ques- tion being concluded by the decree. E"either can a party ob- ject, upon such hearing, to any evidence which the master has received, and noticed as the basis of his report. If a party de- sires to exclude such evidence from being entered in the report, he must take exceptions.^^ At the hearing upon further direc- 11 1 Barbour, Ch. Pr. 560. 12 1 Barbour, Ch. Pr. 561; 2 Smith, Ch. Pr. 401. See Young v. Everest, 1 Russ. & M. 426. 13 1 Barbour, Ch. Pr. 561; 2 Smith, Ch. Pr. 401; Adams v. Claxtoa, 6 Ves. 230. 1*1 Barbour, Ch. Pr. 561; 2 Smith, Ch. Pr. 402; Lewis v. Loxam, 1 Mer. 179. 15 1 Barbour, Ch. Pr. 561; 2 Smith, Ch. Pr. 405. If the interest of a party in the fund in court, or any part of it, which is to be disposed of on further directions, has been sold or assigned, the purchaser or as- signee may apply by a special petition, to come on with the further directions, that the money may be paid over to him. This petition need only be served on the vendor or assignor of the share. Some- times a petition of this nature is presented before the hearing on fur- ther directions, and the order then is that the money shall not be paid out without notice to the petitioner. 1 Barbour, Ch. Pr. 561; 2 Smith, Ch. Pr. 405. (768) Ch. 37] FURTHER DIRECTIONS. § 741 tions, tlie court will make such, further order in tlie cause as, upon reading the master's report, appears to be consistent with the justice of the case, as it stands upon the decree and report, unless it is dissatisfied with the manner in which the master has executed the duties imposed upon him by the decree, in which case it will send it back to him to review his report, or such part of it as the court sees reason to be dissatisfied with.^* The court will not, on further directions, decide a question not reserved by the decree.-''^ As no variation can be made in the original decree upon the hearing for further directions, neither will the court entertain an objection to it upon a ground which might have been made at the original hearing.^® As a general rule, a decree cannot be altered on further directions, but it must be reheard.-^^ § 741. Forms of clauses of reservation for further directions. And the court doth reserve the consideration of all further directions until after the said master shall have made his report.20 And the court doth reserve the consideration of costs, and of all fur- ther directions, until after the said trial shall be had.21 16 1 Barbour, Ch. Pr. 562. 17 2 Smith, Ch. Pr. 404; Le Grand v. Whitehead, 1 Russ. 309. 18 1 Barbour, Ch. Pr. 563; Pritchard v. Draper, 1 Russ. & M. 191; 2 Smith, Ch. Pr. 404. 19 1 Barbour, Ch. Pr. 562; Shipbrooke v. Hinchinbrook, 13 Ves. 394. See, also, Goodyere v. Lake, Amb. 584; Creuze v. Lowth, 4 Brown, Ch. 318; Maghee v. Mahon, 1 Moll. 147; Pearse v. Green, 1 Jac. & W. 135; Turner v. Turner, 1 Jac. & W. 43; Wilson v. Metcalfe, 1 Russ. 530; Champ V. Moody, 2 Ves. Sr. 470; Franklin v. Beamish, 2 Moll. 383; At- torney General v. Town of Galway, 1 Moll. 95. For consideration of hearing on further directions, see 2 Smith, Ch. Pr. 396-411; 1 Barbour, Ch. Pr. 558-563. 20 Curtis, Eq. Prec. 392. 21 Curtis, Eq. Prec. 449. (769) Equity — 49 CHAPTER XXXVIII. COSTS. § 742. In general. The hearing of a cause on further directions is generally the occasion for deciding the "costs of the cause," which are dis- tinguished from incidental costs, which are disposed of as they arise. In considering this subject, it must be borne in mind that the jurisdiction in equity is not like that at common law, — purely litigious, — ^but, in many instances, protective and ad- ministrative. And it is obvious that, under each of these heads, the rule as to costs may properly be very different.-' In suits under the protective and administrative jurisdiction of the court, the general principle is that the party requiring aid shall be liable for the costs. ^ In suits under the litigious jurisdic- tion of the court, the general principle is that the costs shall fol- low the result.^ But costs do not follow as a matter of right, as in proceedings at law, but the allowance of costs rests in the discretion of the court.* The discretion, however, is a sound legal discretion, and should be so exercised as to work no injustice.^ The rule that costs follow the result of the suit, and are awarded to the prevailing party, is departed from when the failing party can show to the court any circumstances which 1 Adams, Eq. 388. 2 Adams, Eq. 388. See, for illustrations of suits under the protective and administrative jurisdiction of the court, Adams, Bq. 389, 390. 3 Adams, Eq. 391. iCohum V. Shroeder, 8 Fed. 521; McArtee v. Engart, 13 111. 242; Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123; Magarity v. Shipman, 82 Va. 784, 1 S. E. 109; Du Bois v. Kirk, 158 TJ. S. 58. 5 North V. Roodhouse, 52 111. App. 17; Woods v. Douglas, 46 W. Va. 657, 33 S. E. 771. (Y70) Ch. 38] COSTS. § 742 would render it unjust that he should pay the costs of the pro- ceeding.® It is held that, where the questions involved in a ■case are new and important, or the practice is unsettled, costs should not be given either party.'^ Where the complainant fails on the main issue in controversy, and succeeds only on an issue ■of trivial importance, he is not deemed to be the prevailing party, within the sense of the rule.* But where he has prevailed upon the main issue in the case, though not to the full extent of tis claim, yet to a greater extent than admitted by the defendant, lie will be allowed costs.* Where costs have accrued from un- necessary litigation, or from errors in the complainant's pro- •ceedings, they will be denied.-' ° In bills to redeem, the defend- ant is usually awarded costs, but in such eases unreasonable re- sistance by the defendant may render him liable for costs ;^^ or the court may give costs to neither party. •'^ Where both parties are in fault, costs may be allowed neither.^ ^ So, also, where each sMoyers v. Coiner, 22 Fla. 422; Lewis v. Yale, 4 Fla. 441. The ques- i^ion of costs is sometimes regulated by statute or rule of court. Rev. St. 111. c. 33, § 18, leaves it to the discretion of the court to award costs in all chancery cases, except when the bill is dismissed by the complainant, or on the motion of the defendant for want of prosecu- tion. North v. Roodhouse, 52 111. App. 17. In the federal circuit court, complainant is not entitled to costs where the decree rendered is for a sum less than five hundred dollars. McKay v. Jackman, 17 Fed. 641. See, for consideration of costs in the federal courts, and also generally, Foster, Fed. Pr. §§ 326-338; Beach, Mod. Eq. Pr. §§ 1002-1044. Costs in various proceedings are also elsewhere considered in connection with such proceedings, and the reader is referred to the index in this con- nection. ^ Grattan v. Appleton, 3 Story, 755, Fed. Cas. No. 5,707 ; Culver v. Mc- Keown, 43 Mich. 322, 5 N. W. 422; Benehey v. City of Harrisburg, 2 Pears. (Pa.) 330; Jones v. Mason, 5 Rand. (Va.) 577, 16 Am. Dec. 761. 8 Marks Adjustable Folding Chair Co. v. Wilson, 43 Fed. 302. 9 "Weston V. Gushing, 45 Vt. 531. lOBlakeney v. Ferguson, 14 Ark. 640; Frisby v. Ballance, 5 111. 287, 39 Am. Dec. 409. 11 Vroom V. Ditmas, 4 Paige (N. Y.) 526. 12 Loveridge v. Lamed, 7 Fed. 294. 13 Hamilton v Hamilton, 13 B. Mon. (Ky.) 502; Johnson v. Taber, 10 N. Y. 319; Nowland v. Glenn, 2 Md. Ch. 368; Loveridge v. Larned, 7 Ped. 294. (Y71) § 742 EQUITY PLEADING AND PRACTICE. [Ch. 38 of the parties prevailed and failed to some extent, the costs may be divided or apportioned according to the relative importance of the items in dispute won and lost by the respective parties, and the time and expense spent by each.^* A tender by the de- fendant of the full amount found to be due may render the complainant liable for costs thereafter accruing, but an offer of less than the complainant was entitled to, made by the defendant after the filing of the bill, is not ground for a division of the costs. ^* Where the holder of an invalid tax title refused to ac- cept a tender of more than he was entitled to receive, and made it necessary to prosecute a bill to set aside the tax title, it was held proper to tax the costs against him.^® The complainant must pay or bring into court all that he is in equity bound to pay before he can obtain the relief sought, or the costs up to the time of such payment may be decreed against him.^^ Where the defendant offered, before the filing of the bill, all the relief which the complainant obtained under the decree, and such offer was refused, it was held that the entire costs were properly im- posed upon the complainant.^ * Where the defendant, who has no interest in the subject-matter of the controversy, properly dis- claims all right, the bill will be dismissed as to him with costs therein, but if he sets up a claim, and insists upon a declaration of his rights, the dismissal, as to him, will be made without costs.-'* As a general rule, no person can have a judgment for costs un- less he is a party to the suit j^" and a judgment for costs cannot be rendered against one not a party to the suit.^-' The court will not hear a cause merely to decide the question of costs, " Bridges v. Sheldon, 7 Fed. 17. 15 Benedict v. Beurmann, 90 Mich. 396, 51 N. W. 461. 16 Gage V. Du Puy, 137 HI. 652, 24 N. B. 541. 17 Sneed v. Town, 9 Ark. 535. 18 Gallagher v. Witherington, 29 Ala. 420. 19 McKinnon v. McDonald, 57 N. C. 1, 72 Am. Dec. 574. See, also, Catlin v. Harned, 3 Johns. Ch. (N. Y.) 61. 20 Winship v. Conner, 43 N. H. 167. 2iWinship v. Conner, 43 N. H. 167; Wallace v. Espy, 68 111. 143. (772) Ch. 38] COSTS. § 743 where the parties have compromised the suit, reserving that question for the decision of the court.^^ § 743. Costs out of the fund. It is held that, where one person institutes legal proceedings for himself and others, and thereby secures the fund for the common benefit of all, an allowance will be made to him for costs and expenses necessarily incurred, including reasonable solicitor's fees.^^ But where the interests of the parties are adverse, nothing beyond the legal taxable costs can be allowed by one party as against the other. ^* The owner of stock in a cor- poration who sues for himself and all other shareholders suc- cessfully for a wrong done to the corporation is entitled to be reimbursed for his actual and necessary expenses, including attorneys' fees, out of the corporate fund.^^ 22 Stewart v. Bllice, 2 Paige (N. Y.) 604; Walpole v. Griffin, Wright (Ohio) 95; Gibson v. Granley, 6 Madd. 365; Roberts v. Roberts, 1 Sim. & S. 39; Bastburn v. Kirk, 2 Johns. Ch. (N. Y.) 317. 23 See Kadish v. Chicago Co-operative Brewing Ass'n, 35 111. App. 411; Whitsett V. City Building & Loan Ass'n, 3 Tenn. Ch. 526. See, also, Ma- son V. Codwise, 6 Johns. Ch. (N. Y.) 297; Rains v. Rainey, 11 Humph. (Tenn.) 261; Ex parte Plitt, 2 "Wall. Jr. 453, Fed. Gas. No. 11,228; Stan- ton V. Hatfield, 1 Keen, 358; Thompson v. Cooper, 2 Golly. 87; Tootal v. Spicer, 4 Sim. 510; Larkins v. Paxton, 2 Mylne & K. 320; Sutton v. Dog- gett, 3 Beav. 9. An allowance is properly made out of the fund of a fee for the solicitor by whose exertions the fund was recovered, and the amount thereof is within the judicial discretion of the court. Harrison V. Perea, 168 U. S. 311; Trustees v. Greenough, 105 U. S. 527; Fowler v. Equitable Trust Co., 141 XJ. S. 411; Attorney General v. Brewers' Co., 1 P. Wms. 376; Attorney General v. Old South Society in Boston, 13 Allen (Mass.) 474. 24 State V. Florida Cent. R. Co., 16 Pla. 703 ; Ryckman v. Parkins, 5 Paige (N. Y.) 545. In suits to establish or administer a charity, if the fund be of adequate amount, and the parties have conducted themselves with propriety, the taxation of costs, "as between solicitor and client," is extended to the costs of all; and a privilege of a like character is conferred on the complainant in a creditors' suit, if the estate to be administered prove insolvent, for, in this case, the creditors whom he represents are entitled to the whole fund. But if there be any surplus, so that other persons become Interested, he can claim only his costs as between party and party. Adams, Eq. 391; Stanton v. Hatfield, 1 Keen, 358. 25 Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S. W. 90, 27 L. R. (Y73) §744 EQUITY PLEADING AND PRACTICE. [Ch. 38 § 744. Costs out of an estate. Whenever an estate, whether real or personal, is the subject of litigation, the court will, in general, order the costs of the suit, or those of some of the parties to it, to be defrayed out of the fund or estate. ^^ As a general rule, a person suing in autre droit is not responsible for costs. An executor or administra- tor complainant will not be ordered to pay costs unless the suit be clearly groundless or vexatious. ^^ It is a rule that trustees, agents, receivers, and personal representatives, accounting fair- ly and paying their money into court, are entitled to their costs out of the estate as a matter of course.^® The rule is not con- A. 98; Kernaghan v. Williams, L. R. 6 Eq. 228; 2 Spelling, Corp. § 643; Cook, Corp. § 748. For reimbursement out of a fund, see Von Schmidt V. Huntington, 1 Cal. 55; McCoy v. Appleby Mfg. Co., 1 111. App. 78; Coddington v. Idell, 29 N. J. Eq. 504; Hand v. Savannah & C. R. Co., 21 S. C. 162. But costs of defending a suit brought by an administra- tor against one who has wrongfully converted assets of the estate, and persistently refused to pay them, must be charged against the defendant personally, and cannot be allowed out of the fund. Harrison v. Perea, 168 U. S. 311. "The underlying principle in all these cases where one has been allowed compensation out of a common fund belonging to others for expenses incurred and services rendered in behalf of the common interest is the principle of representation or agency. Where such compensation has been allowed, the party claiming has been In some way the recognized and authoritative representative of the whole, and therefore authorized to contract for the whole. * * * Thus it is * * * that, in the case of executors, administrators, and other trustees, and in creditors' bills, and suits of that nature, where the rep- resentative of a class is the principal and first actor, either as plaintiff or defendant, the class being so numerous as not to be conveniently made parties individually, the law superinduces a contract on the part of all having a common interest, that the common property shall be chargeable with the reasonable contracts as to fees, expenses, etc., of the representative." Hand v. Savannah & C. R. Co., 21 S. C. 162. 26 2 Barbour, Ch. Pr. 328. 27 Getman's Ex'rs v. Beardsley, 2 Johns. Ch. (N. Y.) 274; Goodrich V. Pendleton, 3 Johns. Ch. (N. Y.) 520; Gifford v. Thorn, 9 N. J. Eq. 702. Where such personal representative resists a claim and litigates from a conviction of duty, the costs will be paid out of the assets of the estate. Moses v. Murgatroyd, 1 Johns. Ch. (N. Y.) 473. 28 2 Barbour, Ch. Pr. 328; Attorney General v. City of London, 1 Ves. Jr. 243; Rashleigh v. Master, 1 Ves. Jr. 205; Knatchbull v. Fearnhead, (774) Ch. 38] COSTS. § 744 fined to cases in which they are brought before the court as de- fendants. Thus, a trustee is entitled to his costs, whether he comes before the court as complainant or defendant, unless the act required to be done leads to no responsibility, or his motive is obviously vexatious.^ ^ A trustee, fairly instituting a suit for the direction of the court with regard to the trust, will not only be entitled to his own costs, but any person made a party to the suit for his protection will also be allowed his costs from the fund.*** Trustees or other persons standing in that char- acter, however, will not be permitted unnecessarily to burden the fund by costs which they might have avoided. ^^ If they attempt to defeat the claims of their cestui que trust by setting up an improper defense, or by stating the trust to be different from what it really is, costs will be denied them.^^ Besides withholding from a trustee his costs, the court will sometimes go further, and compel him to pay the costs out of his own pocket. If any particular instance of misconduct, or a general dereliction of duty in the fiduciary, is the immediate cause of the suit being instituted, he, on the charge being substantiated against him, must pay the costs of the proceedings his own im- proper misbehavior has occasioned. ^^ When a suit is insti- tuted, either by creditors or legatees, for a general administra- tion of assets, so that the whole estate of the deceased must nec- essarily come under the direction of the court, the costs of the 3 Mylne & C. 122; Knox v. Picket, 4 Desaus. (S. C.) 199; Dunscomb v. Dunscomb's Bx'rs, 1 Johns. Ch. (N. Y.) 508; Hosack v. Rogers, 9 Paige (N. Y.) 461; Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153. 20 2 Barbour, Ch. Pr. 329; Curteis v. Candler, 6 Madd. 123; Hosack v. Rogers, 9 Paige (N. 'St^ 461. ^ 30 2 Barbour, Ch. Pr. 329; Hicks v. Wrench, 6 Madd. 93; Henley v. Philips, 2 Atk. 48; Taylor v. Glanville, 3 Madd. 176. 312 Barbour, Ch. Pr. 330; Martin v. Persse, 1 Moll. 146; Blount v. Burrow, 3 Brown Ch. 90. Trustees will be deprived of costs, if they claim more than they are entitled to. Attorney General v. Brewers' Co., 1 P. Wms. 376. 32 2 Barbour, Ch. Pr. 330; Loyd v. Spillet, 3 P. Wms. 346; Ball v. Montgomery, 2 Ves. Jr. 191. 33 2 Barbour, Ch. Pr. 330. (775) § 744 EQUITY PLEADING AND PRACTICE. [Ch. 38 personal representatives are always provided for; and even "where there is a deficiency of assets to pay the whole of the tes- tator's debts, they constitute the first charge upon the fund aris- ing from the personal estate.^* Where there is no deficiency in the fund realized by the suit to answer all the claims upon it, the general rule is that, whenever it is necessary to come into court to establish a demand upon the property of persons de- ceased, the costs of such proceedings must be borne out of the assets.^^ Where a suit was instituted by a legatee, by order of the court, to ascertain whether his legacy had been adeemed, the costs of all the parties were paid out of the fund, although the bill was dismissed.^® Where a legacy, either general or specific, is to be paid out of the testator's estate, and any doubt or ambiguity arises under the will which renders an applica- tion to the court necessary, the costs occasioned by such appli- cation are to be paid out of the residuary estate.®^ The resid- uary estate is the general fund for paying all the costs incurred in the course of administering the estate, and is applicable be- fore the particular fund which has occasioned the litigation, 34 2 Barbour, Ch. Pr. 331; Bennett v. Going, 1 Moll. 529; Young v. Everest, 1 Russ. & M. 426. See, for costs in suits for administration of assets, 2 Barbour, Ch. Pr. 331; Hare v. Rose, 2 Ves. Sr. 558; Loomes v. Stotherd, 1 Sim. & S. 458; Hamilton v. Hamilton, 1 Moll. 535; CMssum T. Dewes, 5 Russ. 29; Mason v. Codwise, 6 Johns. Ch. (N. Y.) 183; Barker v. Wardle, 2 Mylne & K. 818. 35 2 Barbour, Ch. Pr. 331; Hampson v. Brandwood, 1 Madd. 381; Gardner v. Parker, 3 Madd. 184; Sharpies v. Sharpies, 13 Price, 745. For costs on proceedings to construe an ambiguous will, see 2 Barbour, Ch. Pr. 332; King v. Strong, 9 Paige (N. Y.) 94; Smith v. Smith, 4 Paige (N. Y.) 271; Rogers v. Ross, 4 Johns. Ch. (N. Y.) 608; Studholme T. Hodgson, 3 P. Wms. 300; Nourse v. Finch, 1 Ves. Jr. 343; Leister v. Sheringham, 1 Newland, Ch. Pr. 397. 36 2 Barbour, Ch. Pr. 334; Ashe v. Berry, 1 Beat. 255. 3T2 Barbour, Ch. Pr. 334; Studholme v. Hodgson, 3 P. Wms. 303; Jolliffe v. East, 3 Brown Ch. 27; Baugh v. Reed, 3 Brown Ch. 192; At- torney General v. Hurst, 2 Cox, 365; Harrington v. Tristram, 6 Ves. 345; Pearson v. Pearson, 1 Schoales & L. 12; Nisbett v. Murray, 5 Ves. 158; Eyre v. Marsden, 4 Mylne & C. 231; Ripley v. Moysey, 1 Keen, 578; Smith V. Smith, 4 Paige (N. Y.) 271; King v. Strong, 9 Paige (N. Y.) 94. (776) Ch. 38] COSTS. § 744 which can only be applied in the event of the general or resid- uary estate proving deficient.^® In the applications of this rule, no distinction exists between cases in which the residue is dis- posed of and where it is not.*^ Where the act required to be done by the trustee leads to no responsibility, or his motive is obviously vexatious, he will not be allowed his costs.*" A per- son standing in the situation of a trustee, and occasioning a suit by his neglect or misconduct, is not entitled to costs out of the estate.*^ The same rule obtains where, after having taken upon himself the trust, he refuses to act, and thereby renders a suit for the appointment of a new trustee necessary.*^ An executor committing a fraud, or improperly retaining money in his hands, even though the testator has directed that his execu- tors be reimbursed any expenses they may incur out of the prop- erty, will not be allowed his costs. ^^ To be disentitled to costs, he must be guilty of some impropriety of conduct. The mere circumstance of his being indebted to the estate will be insuffi- cient, even though he may be made to pay interest on the bal- ance.** Where an executor who is indebted to the estate has 38 2 Barbour, Gh. Pr. 335; Jolliffe v. East, 3 Brown Cli. 25; Nisbett v. Murray, 5 Ves. 158. 39 2 Barbour, Ch. Pr. 335; Byre v. Marsden, 4 Mylne & C. 244; Nis- bett y. Murray, 5 Ves. 158; Howse v. Chapman, 4 Ves. 542; Barton v. Cooke, 5 Ves. 461. If the devisee of real estate charged with the pay- ment of a legacy refuses to pay the same, the costs of the legatee's suit to recover it will be a charge upon the real estate. 2 Barbour, Ch. Pr. 334; Birdsall v. Hewlett, 1 Paige (N. Y.) 32. The rule will also prevail where property intended to be disposed of has, in the result, been declared undisposed of. There the costs will not be thrown upon the property so declared to be undisposed of, but, as in other cases, upon the general estate. 2 Barbour, Ch. Pr. 335; Howse v. Chapman, 4 Ves. 542; Roberts v. Walker, 1 Russ. & M. 752; Skrymsher v. North- cote, 1 Swanst. 571. io 2 Barbour, Ch. Pr. 329; Knight v. Martin, 1 Russ. & M. 70; Ellis v. Eins, 1 Russ. 368. 412 Barbour, Ch. Pr. 329; O'Callaghan v. Cooper, 5 Ves. 117. 42 2 Barbour, Ch. Pr. 329; Howard v. Rhodes, 1 Keen, 581. 43 2 Barbour, Ch. Pr. 329; Hide v. Haywood, 2 Atk. 126; Dawson v. Parrot, 3 Brown Ch. 236. 44 2 Barbour, Ch. Pr. 330; Parrot v. Treby, Finch, Prec. Ch. 254. (YYY) § 745 EQUITY P1.EADING AND PRACTICE. [Ch. 38 a right to ask the aid and protection of the court in paying over the money due by him, he will be entitled to his costs out of the fund. So, if the executor, who is a creditor of the estate, had a right of preference over other creditors, and was compelled to come into chancery to obtain such preference, his costs will be paid out of the fund.*^ § 745. How costs awarded. Costs are to be awarded as a part of the decree, or they can- not be recovered, although they may be, and generally are, taxed after the decree.*® The amount of costs payable in a suit, whether given out of a fund, or payable by a party, is ascer- tained by taxation, which, if conducted by the strict rule of the court, is termed a taxation "as between party and party," which are the ordinary costs allowed by .the court ; but there is in some cases a more liberal allowance, called costs "as between solicitor and client," which are the costs allowed to parties filling those characters.*'^ In suits of a litigious class, the taxation is al- ways "as between party and party," but in those of a protective or administrative kind, its adoption, though general, is subject , to exceptions. The suits in which an exception is made are those for performance of trusts and administration of assets, in which the trustee or personal representative has always his- costs as between solicitor and client, and, if payments have been made by him not coming strictly under the name of costs,. he may obtain them also by a direction for "charges and ex- penses, not strictly costs in the cause."** *6 2 Barbour, Ch. Pr. 329; Decker v. Miller, 2 Paige (N. Y.) 149. <« Coburn v. Schroeder, 8 Fed. 521. 47 2 Barbour, Ch. Pr. 336; Adams, Eq. 391. *8 Adams, Eq. 391; 2 Smith, Ch. Pr. 638. For costs as between so- licitor and client, see 2 Barbour, Ch. Pr. 337, 338; 2 Smith, Ch. Pr. 636; 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1434; Edenborough v. Archbishop of Canterbury, 2 Russ. 93; Mohun v. Mohun, 1 Swanst. 201; Norway v. Nor- way, 2 Mylne & K. 278; Turner v. Turner, cited in 2 Russ. & M. 687; Tootal v. Spicer, 4 Sim. 510; Larkins v. Paxton, 2 Mylne & K. 320; Brodie V. Bolton, 3 Mylne & K. 168; Barker v. Wardle, 2 Mylne & K. 818; At- torney General v. Haberdashers' Co., 4 Brown, Ch. 178; Currie v. Pye, (778) Ch. 38] COSTS. § 745 17 Ves. 462; Moggridge v. Thackwell, 1 Ves. Jr. 464. When the court has once adopted the principle of taxation, as between solicitor and client, in favor of a particular individual, or of a particular class, it will in its future proceedings, whenever it becomes necessary to direct a further taxation of costs, direct them to be taxed on the footing of the former taxation. But it is to be observed that it is only where the former direction for taxation has been made at a hearing of the cause that the court will consider Itself bound by it at the subsequent hearing, and that it will not do so when the former direction as to costs was made upon petition and by consent. 2 Barbour, Ch. Pr. 338. (779) CHAPTEE XXXIX. REHEARING. § 746. In general. Under the English chancery practice, after a decree was en- tered, and before it was enrolled, the proper method of having it rectified, otherwise than upon the consent of all parties, or in respect of matters which are of course, was by applying to have the cause reheard. If any important error had occurred, or anything material had been omitted in the decree, a rehear- ing was applied for.^ The distinction between applications for rehearings in appellate courts and those in courts of original jurisdiction has been thus pointed out by the supreme court of the United States : "By the established rules of chancery prac- tice, * * * a 'rehearing,' in the 'sense in which that term is used in proceedings in equity, cannot be allowed after the decree is enrolled. If the party desires it, it must be ap- plied for before the enrollment. But no appeal will lie to the 11 Barbour, Ch. Pr. 352; Gardner v. Bering, 2 Edw. Ch. (N. Y.) 131; Brookfield v. Bradley, 2 Sim. & S. 64; Baxter v. Wilson, 2 Atk. 152; Rob- inson V. Taylor, 1 Ves. Jr. 44; Taylor v. Popham, 15 Ves. 72; Coleman v. Franklin, 26 Ga. 368; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Thompson v. Goulding, 5 Allen (Mass.) 81; Brumagin v. Chew, 19 N. J. Bq. 337; Mallery v. Quinn, 88 Md. 38, 40 Atl. 1079; Finlayson v. Lipscomb, 15 Fla. 558. A decree may be corrected or amended on petition or motion as to clerical errors, or by the insertion of any matter which would have been inserted as a matter of course if the same had been asked for at the hearing. Clark V. Hall, 7 Paige (N. Y.) 382; Gardner v. Bering, 2 Edw. Ch. (N. Y.) 131; Wallis v. Thomas, 7 Ves. 292; Pickard v. Mattheson, 7 Ves. 293. But if any error has occurred, or anything material has been omitted from a decree, which it is not perfectly a matter of course to correct or insert, then a rehearing should be asked. Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Brookfield v. Bradley, 2 Sim. & S. 64. (780) Ch. 39] REHEARING. § 746 proper appellate tribunal -until after it is enrolled, either actu- ally or by construction of law, and consequently the time for a rehearing must have gone by before an appeal could be taken. In the house of lords in England, to which the appeal lies from the court of chancery, a rehearing is altogether unknown. A reargument, indeed, may be ordered, if the house desires it for its own satisfaction; but the chancery rules in relation to 're- hearings,' in the technical sense of the word, are altogether in- applicable to the proceedings on the appeal. Undoubtedly this court may and would call for a reargument where doubts are entertained, which it is supposed may be removed by further discussion at the bar ; and this may be done after judgment is entered, provided the order for reargument is entered at the same term. But the rule of the court is this : that no reargu- ment will be heard in any case after judgment is entered, un- less some member of the court who concurred in the judgment afterwards doubts the correctness of his opinion, and desires a further argument on the subject; and when that happens, the court will of its own accord apprise the counsel of its wishes, and designate the points on which it desires to hear them."^ In the United States, generally, there is no enrollment of de- crees. Filing the decree for record is equivalent to enroll- ment.* After a decree has been spread upon the record, a pe- tition for a rehearing will not lie, and the whole matter is be- 2 Brown v. Aspden, 14 How. (U. S.) 26; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197. For practice in federal courts relative to rehearings, see Foster, Fed. Pr. § 665; Beacli, Mod. Eq. Pr. §§ 832-848. 3 Hughs V. Washington, 65 111. 249. See Cochran v. Couper, 2 Del. Ch. 27. The general equity rules of the federal courts contain no provision for the enrollment of decrees. By the former practice there was not, customarily, any enrollment, if nothing was determined in the case, — that is to say, if no decree or or- der had been entered which adjudicated any right or advantage to one party or the other upon the matter of the pleadings. The essential pur- pose of the practice of enrollment was to provide a permanent memorial, upon which the rights of the parties as adjudicated could be there- after more safely preserved. Consolidated Store Service Co. v. Detten- thaler, 93 Fed. 307. See, also, Blain v. Home Ins. Co. of New York, 30 Fed. 667. (781) §746 EQUITY PLEADING AND PRACTICE. [Ch. 39' yond the control of the chancellor, unless it be on a bill of re- view, or a bill to impeach the decree, or some other such subse- quent proceeding.* A rehearing may be applied for, whether the decree or order is made upon the hearing of the cause, or of a demurrer or plea, or upon further directions, or upon ex- ceptions.^ A decretal order can, in fact, be discharged in no other way.^ In some jurisdictions, interlocutory decrees will be reheard upon petition J * Hughs V. Washington, 65 111. 249; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 197; Brown v. Apsden, 14 How. (U. S.) 26; Pfeltz V. Pfeltz, 1 Md. Ch. 455; Clapp v. Thaxter, 7 Gray (Mass.) 384. There are some exceptions to this rule. Cases do not come within it where clerical errors, mistakes in computation, or irregularity in mak- ing up the record have occurred, or where a final decree has been made on default of a party through the negligence or mistake of his solicitor, or by reason of want of notice to him of the pendency of the fcuit. Thompson v. Goulding, 5 Allen (Mass.) 81, citing Kemp v. Squire, 1 Ves. Sr. 205; Deekman v. Peck, 3 Johns. Ch. (N. Y.) 415; Clark v. Hall, 7 Paige (N. Y.) 382; Millspaugh v. McBride, 7 Paige (N. Y.) 509. United States Equity Rule 88 regulates proceedings in the federal courts on rehearings, providing that the petition therefor shall contain the ground upon which the rehearing is applied for, and shall be signed by counsel, and the facts therein stated, if not apparent on the record, be supported by oath, and that no rehearing shall be granted after the term at which the final decree shall have been entered and recorded, if an appeal lies to the supreme court, but, if no appeal lies, the petition may be admitted at any time before the end of the next term of the court, in the discretion of the court. See, for construction of this rule. Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31; Sheffey v. Bank of Lewisburg, 33 Fed. 315; Glenn v. Noonan, 43 Fed. 403; Halsted v. Forrest Hill Co., 109 Fed. 820; Graham v. Swayne, 109 Fed. 366; Goddard v. Ordway, 101 U. S. 745; Roemer v. Simon, 91 U. S. 149. As an appeal in all cases, either to the supreme court or to the circuit court of appeals, is now provided for, it would seem to follow that in all cases an application for a re- hearing must be made during the term at which a final decree is en- tered. First Nat. Bank of Plattsmouth v. Woodrum, 86 Fed. 1004, citing Shiras, Eq. Pr. (2d Ed.) 87. 5 1 Barbour, Ch. Pr. 352. 6 1 Barbour, Ch. Pr. 353. Where the order is made upon a petition, a rehearing should be applied for. 1 Barbour, Ch. Pr. 353; 2 Smith, Ch. Pr. 37; Bishop v. Willis, 2 Ves. Sr. 113. TPurdie v. Jones, 32 Grat. (Va.) 827; Sims v. Sims, 94 Va. 580, 27 (Y82) Ch. 39] REHEARING. t, 748 § 747. Time for application. Under the English chancery practice, as long as there had .been no enrollment, there was no limitation as to the time with- in which it was necessary to apply for a rehearing.* In most jurisdictions in the United States, including the federal courts, at the expiration of the term the decree becomes final, and a petition for a rehearing cannot be filed after the expiration of ..such term.^ Where there is a rule of court regulating rehear- ings, the application must be made in due form, and according to the established practice of the court.-"' Where the application is based on newly-discovered evidence, the exercise of reason- able diligence before the hearing to procure such evidence, and the facts and circumstances constituting such diligence, must be :shown.^^ § 748. When allowable. A rehearing can only take place for the purpose of altering the decree upon grounds which existed at the time when the de- cree was pronounced.-^^ It is held that a rehearing should only • S. E. 436; Hyman v. Smith, 10 W. Va. 298; Spilman v. Gilpin, 93 Va. •698, 25 S. B. 1004. See, however, 1 Barbour, Ch. Pr. 353. 8 1 Barbour, Ch. Pr. 357. See Carew v. Johnston, 2 Schoales & L. 300; Knight v. Young, 2 Ves. & B. 186; Mills v. Banks, 3 P. Wms. 2; Fournier v. Paine, 3 Mylne & K. 207; White v. Lisle, 3 Swanst. 351; Brophy v. Holmes, 2 Moll. 1. 9 Gardner v. Dwelling House Ins. Co., 44 111. App. 156; Delahay v. McConnel, 5 111. 156; Roemer v. Simon, 91 U. S. 149; Hodges v. Davis, 4 Hen. & M. (Va.) 400; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Glenn v. Dimmock, 43 Fed. 550; Burch v. Scott, 1 Gill & J. (Md.) 393. The matter is fre- quently regulated by statute or rule of court. See United States Equity Rule 88. For practice in various jurisdictions, see Woodson's Ex'r v. Leyburn, 83 Va. 343, 3 S. E. 873; Canerdy v. Baker, 55 Vt. 578; Randall v. Peckham, 11 R. I. 600; Roberts v. Edmundson, 4 Smedes & M. (Miss.) 730; Foster, Fed. Pr. § 665. 10 1 Barbour, Ch. Pr. 360; Gardner v. Dering, 2 Edw. Ch. (N. Y.) 131; Cotton v. Parker, Smedes & M. Ch. (Miss.) 125. 11 McLeod V. City of New Albany, 24 U. S. App. 601, 66 Fed. 378; Gil- lette V. Bate Refrigerating Co., 12 Fed. 108; Harman v. Lewis, 24 Fed. .■^530; Armstead v. Bailey, 83 Va. 242, 2 S. E. 38. 12 1 Barbour, Ch. Pr. 354; Bowyer v. Bright, 13 Price, 316.' (783) § 748 EQUITY PLEADING AKD PRACTICE. [Ch. 39 be allowed where some plain omission or mistake has been made, or where something material to the decree is brought to the no- tice of the court which had previously escaped its attention/* and not where the court sees no reason to apprehend that a mis- take in law or in fact has been made in the decision.-'* The grounds upon which courts ordinarily grant rehearings are: (1) Upon allegations that any question decisive of the cause, and duly submitted by counsel, has been overlooked by the court; or (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which attention was not drawn through the neglect or inadvertence of counsel.-'^ In some jurisdictions it is held that a rehearing will not be granted on account of the discovery of new evidence or new matter.^ ^ In other jurisdictions, a re- hearing is allowable on the ground of after-discovery of evi- dence, but in such cases it is held that the evidence must not be merely cumulative upon the litigated facts already in issue, but must be material, and such as would probably change the result, and that it must appear that, by reasonable diligence of the party asking for a rehearing, it could not have been used on the former hearing.-''^ And it is held that, where a rehearing is ap- 13 Jenkins v. Eldredge, 3 Story, 299, Fed. Gas. No. 7,267. 14 Attorney General v. New York & L. B. R. Co., 24 N. J. Bq. 59. 16 Railway Register Mfg. Co. v. North Hudson Co. Railroad Co., 26 Fed. 411; Marine Nat. Bank v. National City Bank, 59 N. Y. 73. 16 1 Barbour, Cli. Pr. 354; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581. If new evidence has been discovered after the original hearing, the prop- er course is to obtain leave to file a supplemental bill in the nature of a bill of review, to come on for hearing at the same time with the rehear- ing of the original decree. 1 Barbour, Ch. Pr. 361. The supplemental bill, in the nature of a bill of review to bring forward new matter, can- not be filed without leave of court. This leave should be applied for by pe- tition, which should pray a rehearing of the original cause at the same time that it is heard on the supplemental bill. Pinlayson v. Lipscomb, 15 Pla. 558; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581; Standish v. Rad- ley, 2 Atk. 177; Hinson v. Pickett, 1 Hill Bq. (S. C.) 35; Reeves v. Key- stone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661. IT 1 Barbour, Ch. Pr. 354; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Powell v. Batson, 4 W. Va. 610; Detroit Sav. Bank v. Truesdall, 38 Mich. 430; Adair v. Thayer, 7 Fed. 920; Dunham v. Winans, 2 Paige (784) Ch. 39] • REHEARING. § 748 plied for on tke groimd of newly-discovered evidence, the ap- plication is mainly governed by the same considerations that apply to cases where leave is asked, after publication of testi- mony, and before the hearing, to file a supplemental bill in or- der to bring such new evidence before the court, or where, after a decree, leave is asked to file a bill of review, or a bill in the nature of a bill of review, upon the like ground;^* and will not be granted where, by diligence, the evidence could have been in- troduced on the original hearing, but was not so introduced because the applicant and his counsel were misled as to the real issue by the arguments of the opposing counsel.-"' A rehearing is never granted for the purpose of enabling a party to contradict witnesses examined by the adverse party. ^^ Error of judgment, or mistake of law, or want of attention or capacity of counsel is no ground for a rehearing.^^ A rehearing will not be al- (N. Y.) 24; Hughes v. Jones, 2 Md. Ch. 289; Kelley v. McKinney, 5 Lea (Tenn.) 164; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661; Acme Flexible Clasp Co. v. Gary Mfg. Co., 99 Fed. 500; Owens V. Love, 9 Fla. 334; Hinson v. Pickett, 1 Hill Eq. (S. C.) 35; Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 121, citing Beach, Mod. Eq. Pr. § 836; Pfanschmidt v. Mercantile Co., 32 Fed. 667. It is laid down that, if the newly-discovered evidence is of a different kind and character from that adduced on the trial, it will not be liable to the objection that it is cumulative. Mulock v. Mulock, 28 N. J. Eq. 15, citing Guyot v. Butts, 4 Wend. (N. Y.) 579; Gardner v. Mitchell, 6 Pick. (Mass.) 114; Watts v. Howard, 7 Mete. (Mass.) 478, 480. 18 Daniel v. Mitchell, 1 Story, 19S. Fed. Cas. No. 3,563; Baker v. Whit- ing, 1 Story, 218, Fed. Cas. No. 786; Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125. 18 Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125. 20 Dunham v. Winans, 2 Paige (N. Y.) 24. 21 Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; McDowell v. Perrine, 36 N. J. Eq. 632; Witters v. Sowles, 31 Fed. 5; Hunter v. Marl- boro, 2 Woodb. & M. 168, Fed. Cas. No. 6,908; Robinson v. Sampson, 26 Me. 11; Patterson v. Read, 43 N. J. Eq. 18, 10 Atl. 807; Prevost v. Gratz, 1 Pet. C. C. 364, Fed. Cas. No. 11,406. See, also, Pittsburgh Reduction Co. V. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125, citing Beach, Mod. Eq. Pr. § 835. When, upon the hearing of the cause, the counsel for the defendants abandoned the defense after hear- (Y85) Equity — 50 §749 EQUITY PLEADING AND PRACTICE. [Ch. 39 lowed on a decree for costs only, unless good ground for the ap- plication be shown. ^^ The court may of its own motion order, a rehearing. ^^ It is said that a rehearing will not be allowed to relieve a party against an invalid decree, inasmuch as his rights are not prejudiced thereby.^* § 749. Rehearing of default and consent decrees. A rehearing of a decree by default may also be had in the same manner as other decrees, and whatever decree is made upon such rehearing will be absolute, even though the party again makes default.^^ Where a consent decree is entered, a rehearing is not usually allowed.^® But is is said that a re- hearing may be granted for reasons sufficient to authorize the setting aside of the consent or agreement under which the decree was rendered. ^^ ing the opening argument in behalf of the complainant, the court re- fused to grant a rehearing upon the ordinary certificate of counsel. To ob- tain a rehearing under such circumstances, it was held that the defend- ants would be required to show a violation of duty on the part of their counsel, or that he had clearly mistaken the law and the facts. 1 Barbour, Ch. Pr. 355; Decarters v. La Farge, 1 Paige (N. Y.) 574. 22 Travis v. Waters, 1 Johns. Ch. (N. Y.) 48. See 1 Barbour, Ch. Pr. 355; Mulvany v. Dillon, 1 Moll. 19; Taylor v. Popham, 15 Ves. 72; Bast- burn V. Kirk, 2 Johns. Ch. (N. Y.) 317. 23 Hughs V. Washington, 65 111. 245. 2* Hurlburd v. Preelove, 3 Wis. 537. 25 1 Barbour, Ch. Pr. 353; Hankwitz v. Ocarrel, 1 Dickens, 109. See Took V. Clark, 1 Dickens, 350. 26 Hodges V. McDuff, 76 Mich. 303, 43 N. W. 428; Armstrong v. Coop- er, 11 111. 540; Wilcox v. Wilcox, 36 N. C. 36. 2T Ex parte Gresham, 82 Ala. 359, 2 So. 486; Attorney General v. Tom- line, 7 Ch. Div. 388; Seton, Decrees, 774. Where a decree is entered by consent, the party, in case of fraud or collusion, must seek relief by an original bill. Monell v. Lawrence, 12 Johns. (N. Y.) 521; Harrison v. Rumsey, 2 Ves. Sr. 488; Bradish v. Gee, Amb. 229. It is said that Lord Thurlow appeared to think that, when anything was inserted in a de- cretal order, as by consent, to which the party had not consented, it might be rectified by bill of review, but not by motion. 1 Barbour, Ch. Pr. 353; Anonymous, 1 Ves. Jr. 93. (786) -ph. 39] iREHEARIN;G. § 751 § 750. Who may apply for rehearing. Any party to the record having an interest in the decree may petition for a rehearing. One made a defendant in respect to an office, which he resigns before any decree is made in the suit, but continuing upon the record, and having an interest in the subject>-matter of the suit, acquired by his tenure of office, may apply for a rehearing. But one who, after decree, is brought into court by a supplemental bill, to which he has ap- peared, but not answered, has no right to petition for a rehear- ing, and, where he joins in the same petition with others so entitled, the petition may be amended by striking out his name.^* The right to have a decree upon default reheard is not confined to the party against whom the decree has been ob- tained. If the party obtaining the decree finds that he has not taken such decree as he is entitled to, or has committed an error in the form or substance of it, he may have it reheard upon the usual terms.^® An order for a rehearing may be ob- tained by the complainant when the cause has been originally set down for hearing at the request of the defendant, and a decree for dismissing the bill made upon default of the complainant's appearance.^" ^ 751. How applied for. A rehearing is applied for upon petition, which must state 28 1 Barbour, Cli. Pr. 355; Attorney General v. Stamford, 6 Jur. 117; Heermans v. Montague (Va.) 20 S. B. 899. It is held that one not a party is not entitled to file a petition for rehearing, but the proper practice is to file a petition for leave to file a petition for a rehearing. Doyle V. New York & N. E. R. Co., 14 R. I. 55; Heermans v. Montague (Va.) 20 S. E. 899; Berry v. Attorney General, 2 Macn. & G. 16; Gwynne V. Edwards, 9 Beav. 22; Jopp v. Wood, 33 Beav. 372. 29 1 Barbour, Oh. Pr. 354, Baxter v. Wilson, 2 Atk. 152. A petition for rehearing does not lie for assignees; but it is nevertheless com- petent for a person not a party to a former suit, but whose interest may in some way have been affected by the proceedings had therein, to come in by way of petition to be made a party, and then to ask a rehearing of a former decree. 1 Barton, Ch. Pr. 205, cited in Armstead v. Bailey, 83 Va. 242, 2 S. E. 38; Heermans v. Montague (Va.) 20 S. E. 899. 30 1 Barbour, Ch. Pr. 353; Terran v. Waite, 2 Dickens, 782. (787) §751 EQUITY PLEADING AND PRACTICE. [Ch. 39 the special matter or cause of the application, and the particular points in which the decree is alleged to be erroneous. It must be confined to the case upon the record. If it suggests, as the grounds of rehearing, facts not alleged in the pleadings, the ap- plication will be refused.^^ It must always state by whom it is presented, the interest of the petitioner, the material facts upon which it is foimded, and the relief sought.^ ^ A peti- tion for a rehearing on the ground of newly-discovered evidence should fully state, independently of the accompanying affida- vits, the nature of the new evidence relied upon, that it was not known to the petitioner until after the decree, and when it first came to his knowledge. Particular and sufficient facts must be disclosed, showing that with reasonable diligence the alleged newly-discovered evidence could not have been found or known before the hearing on the merits.*^ The application should disclose the new testimony, the names of the witnesses, and the character of the documentary evidence.^* If any order of the 31 1 Barbour, Ch. Pr. 355, 356; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No 11,661; Nevinson v. Stables, 4 Russ. 210; Wood V. Griffith, 1 Mer. 35; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Boucher v. Boucher. 3 MacArthur (D. C.) 453; Taylor v. Boyd, 6 Heisk. (Tenn.) 611. 32 Heermans v. Montague (Va.) 20 S. B. 899. It is held that a motion for a rehearing is improper. Harman v. Lewis, 24 Fed. 530 ; Boucher v. Boucher, 3 MacArthur (D. C.) 453; Taylor v. Boyd, 6 Heisk. (Tenn.) 611. 33 Allis V. Stowell, 5 Ban. & A. 458, 85 Fed. 481. 34McLeod V. City of New Albany, 24 U. S. App. 601, 66 Fed. 378; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856. As to the practice in Virginia, it is said: "It may be said in general that what is essen- tial to a good bill of review is also essential to a petition for a rehear- ing; keeping in view, however, that a bill of review only lies to a final decree, and is not regarded as part of the cause in which the decree sought to be reviewed was rendered, but as a new suit, having for its object the correction of the decree in the former suit^ while a petition for a rehearing lies only to an interlocutory decree, and is treated as part of the suit in which the decree is rendered. But the settled prac- tice, nevertheless, is to treat a bill of review which is filed to an in- terlocutory decree as if it was in name a petition for rehearing, and a petition for rehearing, which is filed to a final decree, as if it was a bill of review, provided it conforms to the ordinary reauirements of such (Y88) Ch. 39] REHEARING. § 751 court has been made since the decree for the purpose of carry- ing its provisions into effect, it should be stated. The fact that such an order has been made by consent will not prevent a rehearing.*^ The petition concludes vs^ith a prayer that the cause may be reheard, and that the decree may be either re- versed, or altered in the objectionable points.*® In some juris- dictions, a certificate of one or more counsel that they have examined the case, and, in their opinion, the application is well founded, is required.*'' The counsel who sign the certificate are usually those who were concerned in the original hearing, or at least one of them, and it was said by Lord Hardwicke that "such credit is given by the court to their opinion that the case ought to be reheard that it will, in general, order the cause to be set down," as a matter of course.*® This practice does not, however, obtain in the United States, in the absence of statute or rule of court.*^ Where the petition is based on newly-discov- ered evidence, it should be sworn to.*° If improperly framed, it a bin. 1 Barton, Law Pr. 332 [1 Barton, Ch. Vt. § 107], and numer- ous decisions of this court there referred to." Heermans v. Montague (Va.) 20 S. E. 899. 35 1 Barbour, Ch. Pr. 356; Wood v. Griffith, 1 Mer. 35. 36 1 Barbour, Ch. Pr. 356. 37 1 Barbour, Ch. Pr. 356; Monkhouse v. Corporation of Bedford, 17 Ves. 380. 38 1 Barbour, Ch. Pr. 357; Cunyngham v. Cunjnagham, Amb. 91. 39 Field V. Schiffelin, 7 Johns. Ch. (N. Y.) 250; Land v. Wickham, 1 Paige (N. Y.) 256; American Diamond Rock Boring Co. v. Sheldon, 1 Fed. 870; Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267. *o Armstead v. Bailey, 83 Va. 242, 2 S. E. 38; Corey v. Moore, 86 Va. 721, 11 S. E. 114; Hale v. Pack's Ex'rs, 10 W. Va. 145; Allis v. Stowell, 5 Ban. & A. 458, 85 Fed. 481. It should be signed by counsel, and the affidavits accompanying it should not be sworn to before a notary public who is counsel for the petitioner, and the accompanying affi- davits should be distinctly and positively, by allegation, made part ot the petition. Allis v. Stowell, 5 Ban. & A. 458, 85 Fed. 481. Affi- davits accompanying an application for a rehearing, containing state- ments in general terms that defendant "has been eager to collect all ma- terial evidence," and "has made great exertion and every reasonable effort to defend the suit," are mere conclusions, and are insufficient. Hicks V. Otto, 22 Blatchf. 122, 85 Fed. 728. (789) § 752 EQUITY PLEADING AND PRACTICE. [Ch. 39 may be ordered to be taken from the file without prejudice.*^ And it is held that it may be amended to state a discovery of new evidence.*^ One petition cannot seek a rehearing of or- ders made in different suits, although the parties in both suits are the same.** Under the practice of the New York court of chancery, a copy of the petition, with the usual notice of pre- senting the same, was required, by rule of court, to be served on the adverse party.** 8 752. Form of petition for rehearing. [Title of court and cause.] To the Honorable James Kent, Chancellor of the State of New York: The humble petition of J. K. and M. E. K., his wife, the above-named complainants, respectfully showeth: That your petitioners find themselves much aggrieved by a decretal order made by your honor in the above-entitled suit on the first day of August, eighteen hundred and twenty-one, whereby it is declared that the plea pleaded by the defendant, J. T., with the accompanying answer, is good in point of form, and valid in substance, and that the release in the said plea stated is an absolute discharge of the said defendant from his obligation as surety in the bond in the bill of complaint mentioned; whereas your petitioners are advised and hum- bly conceive that the said plea is not good in form or substance, and that the said defendant ought not to be discharged from his ob- ligation as surety in the bond in the said bill of complaint mentioned. Your petitioners believe and charge that the said release, which is sought by the said bill to be set aside, was obtained by fraud by the defendant, J. T., and they are advised and believe that such fraud is sufficiently charged in the said bill. Your petitioners also aver and charge that the said release was ex- ecuted by your petitioner M. E. K. in utter ignorance of her rights; that those rights were known and concealed by the said J. T. for the sole purpose of obtaining the release and relieving the said surety and himself from his obligation to respond for all the acts of all and « 1 Barbour, Ch. Pr. 356; "Wood v. Griffith, 1 Mer. 35. 42 1 Barbour, Ch. Pr. 356; Wyld v. Ward, 2 Younge & J. 381. *3 1 Barbour, Ch. Pr. 356; Boys v. Morgan, 3 Mylne & C. 661. It was said by Mr. Justice Field that a petition for rehearing can only be pre- sented on notice, and can only be considered after the other side has had an opportunity to answer it. Giant Powder Co. v. California Vig- orit Powder Co., 5 Fed. 197. "1 Barbour, Ch. Pr. 357. (790) Ch. 39J REHEiARING. § 753 eacli of the guardians of the said M. B. K., and they are advised and be- lieve that those matters are sufficiently charged in and by the said bill. That even if a formal and express charge of fraud be deemed neces- sary by your honor, in addition to the allegation of facts from which fraud is to be inferred, your petitioners humbly conceive that there ought to be a rehearing to enable your petitioners to insert such charge in their said bill, in order that substantial justice may not be sacrificed to mere form. And your petitioners further show that the said decretal order has been settled and entered, but has not yet been enrolled: Whereupon your petitioners humbly pray that your honor will be pleased to vouchsafe a rehearing of the cause before your honor, your petitioners submitting to pay such costs as the court shall award, in case their complaint shall be found to be groundless. B. R., Solicitor for Complainants. [Certificate:] We certify that we have examined the case referred to in the fore- going petition, and are of opinion that the decree therein mentioned is erroneous in the particulars mentioned in such petition. J. D. and R. H., Counsel. 45 § 753. Rehearing discretionary. A rehearing is not considered a matter of course, except in the cases provided for by rules of court. In other cases it rests in the discretion of the court.*® In some jurisdictions it is held that it is almost a matter of course to grant a rehearing upon petition, unless the application has been unreasonably de- layed,*'' and that the discretion is to be exercised liberally if the court thinks the cause ought to be reheard,*^ and that the exer- cise of such discretion is not reviewable.*^ 45 This form is taken substantially from 3 Hoffman, Ch. Pr. clxxiv. Mr. Hoffman annexes no verification to this form, although it would seem proper to add the same. See 2 Barbour, Ch. Pr. 456. See sub- stance of a petition stated in Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786. 46 1 Barbour, Ch. Pr. 352; Land v. Wickham, 1 Paige (N. Y.) 256; Travis v. Waters, 1 Johns. Ch. (N. Y.) 48; Daniel v. Mitchell, 1 Story, 198, Fed. Cas. No. 3,563; Zimmer v. Miller, 64 Md. 296, 1 Atl. 858; Bru- magin v. Chew, 19 N. J. Eq. 337; McAllister v. Plant, 49 Miss. 628; Hughes V. Jones, 2 Md. Ch. 289; McLeod v. City of New Albany, 24 U. S. App. 601, 66 Fed. 378. 47 Wilcox V. Wilcox, 36 N. C. 36. 48 Hodges V. New England Screw Co., 3 R. I. 9; New Jersey Zinc Co. (791) §756 EQUITY PLEADING AND PRACTICE. [Ch. 39 S 754. Withdrawing petition. A petition for rehearing may be withdrawn on application by motion, provided it is consented to by the respondent. If not consented to, it cannot be withdrawn, but must come on in its course.^" § 755. Hearing on petition. The general practice in England was for the lord chancellor to order the cause to be set down for rehearing as a matter of course upon certificate of counsel ; but if he had any doubt upon the subject, he ordered the petition itself to come on for hear- ing before he ordered the cause to be set down.^^ If there is any irregularity in the petition, application may be made by motion to take it from the files.^^ § 756. Deposit on rehearing. In some jurisdictions a deposit to answer the costs and dam- ages of the adverse party if the decree or order is not materially varied is required.^* It was held in England that, where there is an original and supplemental cause, or two supplemental causes, they are considered as one, and the payment of one de- posit only is necessary.^* V. New Jersey Pranklinite Co., 14 N. J. Eq. 308; Kendrick v. Whitney, 28 Grat. (Va.) 646. 49 Ex parte Gresbam, 82 Ala. 359, 2 So. 486. "The exercise of such discretion, however, is not willful, but is governed and determined by certain well-established principles." Railway Register Mfg. Co. v. North Hudson Co. Railroad Co., 26 Fed. 411; Giant Powder Co. v. Cali- fornia Vigorit Powder Co., 5 Fed. 197. 50 1 Barbour, Ch. Pr. 357; Thomson v. Thomson, 10 Ves. 30. 51 1 Barbour, Ch. Pr. 357; Fox v. Mackreth, 2 Cox, 159. 52 1 Barbour, Ch. Pr. 357; Wood v. Griffith, 19 Ves. 550. 53 This was reauired by rule 115 of the New York chancery practice formerly obtaining. See 1 Barbour, Ch. Pr. 359. 54,Cowper V. Scott, 1 Eden, 17; 1 Barbour, Ch. Pr. 359. See Lord Lyndhurst's order relative to return of deposit. Ord. 1828, xlii; Rat- tenbury v. Fenton, Cook, Orders, 21. (792) Ch. 39] REHEARING. § 759 § 757. Stay of proceedings. !N"either tlie petition nor an order for a rehearing stops pro- ceedings under a decree unless tlie court so specifically directs.^'' Where a court entertains an application to set aside an inter- locutory decree, it will generally, as a matter of course, pending the hearing upon that application, suspend the execution of the decree."® § 758. Form of order to stay proceedings. [Title of court and cause.] On reading and filing the petition of the defendant, C. D., praying for a rehearing of the decretal order made in this cause on the day of last, affidavits, etc., and on motion of M. H., solicitor for said petitioner, no one appearing to oppose, it is ordered that the complainant show cause at the next term of this court to he held at , in , on the day of next, why the prayer of said petition should not he granted, and that in the meantime all pro- ceedings in this cause on the part of the complainant he stayed. § 759. Proceedings upon rehearing. Under the English practice, if, when a rehearing is called on, the petitioner does not appear, his petition will, upon read- ing of affidavit of service of notice of motion, be dismissed with costs. If the other party does not appear, the court will, upon reading a similar affidavit, proceed to rehear the cause ex 'parte.^'^ Upon the rehearing, the pleadings are opened, and the evidence read in the same manner as upon an original hear- 55 Vose V. Internal Improvement Fund, 2 Woods, 647, Fed. Cas. No. 17,008; Lockwood v. Bates, 1 Del. Ch. 435. 5s Rogers V. Marshall, 12 Fed. 614. See Meloy v. Central Nat. Bank, 6 Mackey (D. C.) 444, holding that a petition for rehearing suspends the time for entering an appeal from the decree until the petition is disposed of. See, also. Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31. When a rehearing upon an interlocutory decree is granted upon the record as it stands, and the court concludes, as a result of that rehearing, that the interlocutory decree is not sustained hy the proofs, it is the proper practice to set aside such decree until the cause is again heard. If granted in order to allow additional proof, the de- cree should stand pending rehearing. Rogers v. Marshall, 15 Fed. 193. 57 1 Barbour, Ch. Pr. 359. (793) §760 EQUITY PLEA^DING AND PRACTICE. [Ch. 39 ing. The same objections may be raised for want of parties, or upon otber grounds, as upon an original hearing.^* All persons interested in supporting tbe decree or order sought to be reheard are entitled to be reheard, but no party except the one who obtains the rehearing can be heard in opposition to it. One not included as a co-petitioner in a petition for a re- hearing, if desirous of procuring a rehearing, must present a separate petition.^® Upon a rehearing, the decree is open for the party obtaining it only in the matters complained of, but as to the opposite party it is open at large.^" It is held in some jurisdictions that, where the order is for a rehearing generally, the whole case is open to both parties, and the party supposing himself aggrieved has a right to insist on a reconsideration of any part of it.®^ An objection of substance may be raised by the defendant for the first time upon a rehearing, even though it prove fatal to the whole bill.^^ Leave may be given the com- plainant to amend by adding parties in the same manner as upon an original hearing, and the cause may be ordered to stand over for that purpose.®^ § 760. Evidence on rehearing. The general rule is that, upon a rehearing, no evidence can be gone into which was in the case at the original hearing, and capable of being then produced. But where evidence in the case was omitted to be read at the original hearing, such, for 58 1 Barbour, Ch. Pr. 359; Jackson v. Lee, 1 Dickens, 92; Anspach v- Noel, 1 Madd. 313. 59 1 Barbour, Ch. Pr. 360; 2 Smith, Ch. Pr. 34; Tasker v. Small, 1 Coop. Ch. 255. 60 1 Barbour, Ch. Pr. 360; Rawlins v. Powel, 1 P. Wms. 297; Dale v. Roosevelt, 6 Johns. Ch. (N. Y.) 256; Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 594; Sullivan v. Jacob, 1 Moll. 472; Oldham v. Stonehouse, 3 Mylne & C. 317; Ferguson v. Kimball, 3 Barb. Ch. (N. Y.) 616. «i Glover v. Hedges, 1 N. J. Eq. 113 ; Sparhawk v. Buell's Adm'r, 9 Vt. 41. 62 1 Barbour, Ch. Pr. 360; Harrison v. McMennomy, 2 Edw. Ch. (N. Y.) 251. 63 1 Barbour, Ch. Pr. 360; College of Saint Mary Magdalen v. Sib- thorp, 1 Russ. 154. (794) Ch. 39] REHEARING. § 760 example, as a document, or where the proof of an exhibit in the original cause was omitted, the court will make an order allow- ing them to be read or proved, saving just exceptions. In some cases, too, where, by a mistake or slip, a document has not been proved at all, or not proved by competent evidence, leave has, under very special circumstances, been granted to exhibit an interrogatory for that purpose.®* But there is no universal and absolute rule which prohibits the court from allowing the introduction of newly-discovered evidence of witnesses to facts in issue in the cause, even after the hearing.®^ But the allow- ance of it is not a matter of right in the party, but of sound discretion in the court, to be exercised cautiously and sparingly, and only under circumstances which demonstrate it to be in- dispensable to the merits and justice of the cause.®* But it has been said that this rule was founded on the public policy of suppressing perjury, and preventing the fabrication of evi- dence to meet the exigencies of the cause after the full hearing and weight of the testimony was understood by the parties, but that, by the methods of modern practice in equity, where the testimony is fully known to the parties as it is put in, the rule is deprived of much of its force.®^ Depositions taken previous to the original hearing, though not then made use of, may be 64 story, J., in Jenkins v. Eldredge, 3 Story, 299, Fed. Gas. No. 7,267. See, also, Brumagin v. Chew, 19 N. J. Eq. 337; Baker r. Whiting, 1 Story, 218, 231, Fed. Gas. No. 786; Scales v. Nichols, 2 Yerg. (Tenn.) 140; Higgins v. Mills, 5 Russ. 287; Williamson v. Hutton, 9 Price, 187; Hood V. Primm, 4 Sim. 101; Williams v. Goodchild, 2 Russ. 91. ssMulock v. Mulock, 28 N. J. Eq. 15; Wood v. Mann, 2 Sumn. 316, Fed. Gas. No. 17,953. ea Story, J., in Wood v. Mann, 2 Sumn. 316, Fed. Gas. No. 17,953. e^ Mulock v. Mulock, 28 N. J. Eq. 15. In Mulock v. Mujock, 28 N. J. Eq. 15, it was said that the statement in Brumagin v. Ghew, 19 N. J. Eq. 337, that, on rehearing, only such evidence as was or could have been read on the hearing could be heard, though evidently intended as the enunciation of a general rule, referred in that case to the intro- duction of new evidence to show that the law of New York as to the effect of judgments of that state was different from what it appeared on the hearing. See, also, supra, § 691. (795) §762 EQUITY PLEADING AND PRACTICE. Ch. 39 read.^* If, since the hearing, a witness has been convicted of perjury, the circumstance may he brought before the court upon a rehearing.^* In no case wiU the court permit new evi- dence to be given at a rehearing as to any matter which was not in issue upon the original hearing. ''" § 761. Costs on rehearing. The costs of a rehearing, as well as of an original hearing, are in the discretion of the court, but generally, if a rehearing is denied, it will be with costs.'^^ It is said that a respondent can in no case be made to pay costs, but that, where he has made use of evidence which was not read at the hearing, that circumstance should be taken into consideration in disposing of the costs of rehearing.''^* i 762. Successive applications for rehearing. By the ancient practice of the English court of chancery, causes were sometimes reheard more than once on the applica- tion of the same party. Subsequently, however, it was held that a second rehearing could not be had at the instance of the same party, after the first decree had been affirmed, except in a case of palpable mistake, or under very special circmnstan- ces.'^* Chancellor Kent said that he had not been able to find any case in the English reports in which a rehearing had been refused on the ground that the cause had already been reheard, if the application came from the opposite party, and that a «8 1 Barbour, Ch. Pr. 360; Cunyngham v. Cunyngham, Amb. 90; Need- bam v. Smith, 2 Vern. 463. 69 Needham v. Smith, 2 Vern. 463. ^o Holt V. Burleigh, Finch, Prec. Ch. 293. Under the English practice, when a party obtaining a rehearing made use of evidence on the rehear- ing which was not read below, he could only be permitted to do so on condition of giving up his deposit. 1 Barbour, Ch. Pr. 368; Hedges v. Cardonnel, 2 Atk. 408. 71 1 Barbour Ch. Pr. 362. See Hedges v. Cardonnel, 2 Atk. 408. 72 1 Barbour, Ch. Pr. 362; Williams v. Goodchild, 2 Russ. 91. T3 Bast India Co. v. Boddam, 13 Ves. 421; Fox v. Mackreth, 2 Cox, 158; Land v. Wickham, 1 Paige (N. Y.) 256; Canerdy v. Baker, 55 Vt. 578. (796) Ch. 39] REHEARING. § 762 rehearing in all cases, except those provided for by the rules of the court, rested in the sound discretion of the court. ''* The fact that a devisee had filed and withdravm, by leave of court, a petition for a rehearing, does not estop his personal repre- sentative from filing a similar petition.''^ T*Laiid V. Wickham, 1 Paige (N. Y.) 256. 75 Noel's Adm'r v. Noel's Adm'r, 86 Va. 109, 9 S. E. 584. (797) CHAPTER XL. § 763. In general. Errors in a decree may be rectified before the court pro- noimcing it by a petition for a rehearing, or a bill of review, or a bill in the nature of a bill of review. There is another mode of rectifying, or attempting to rectify, an erroneous decree. Such mode is by appealing to a court exercising appellate jurisr diction. The course of procedure in appeals is largely regu- lated by statute and rules in the federal courts, and in most of the states of the United States; consequently, the procedure in the different jurisdictions largely varies, and is mostly mat- ter of mere local practice, and, it is impracticable to treat the general subject in detail.^ § 764. Distinction between rehearing and appeal. Under the English practice, on a rehearing, which was strict- ly what its name expressed,— ^-a second hearing before the orig- inal jurisdiction, — any evidence might beused which might have been used originally, whether it were in fact so used or not. But on an appeal, which was a resort to a superior jurisdiction to determine whether the court below was right, no evidence could be tendered except that which was entered as read in the decree, or the rejection of which was a ground of appeal.^ iMitford & T. PL & Pr. in Eq. 490; 2 Smith, Ch. Pr. 18. For pro- cedure by petition for rehearing, see supra, § 746; for bills of review, see post, § 919 et seq; for bills in the nature of bills of review, see post, § 962 et seq. 2 Adams, Bq. 399; Eden v. Bute, 1 Brown, Pari. Cas. 465. See Wright V. Pilling, Pinch, Prec. Ch. 494; Lovell v. Hicks, 2 Younge & C. 472. Un- der the English practice, if either party desired to avoid the expensive (798) -Ch. 40] APPEALS. § 765 § 765. Appellate jurisdiction in England. It is said that the decrees of the chancellor in England were originally final and conclusive, and that no appeal from his decision seems ever to have been allowed before A. D. 1581.' 'On the gro-wth of the chancellor's jurisdiction, the right of .appeal to the house of lords became established.* It is said that the appellate jurisdiction in equity in the English courts was two-fold, viz. : (1) In the king, whose conscience was ill : administered, and who might issue a special commission pro re nata to reconsider his chancellor's decree; and (2) in the house of lords, on petition to them, as to the supreme judica- ture of the realm. The latter course of procedure entirely : superseded the former; but in the latter part of the seventeenth century a dispute arose, respecting its validity, between the houses of lords and commons, and it was contended that the appellate jurisdiction in equity, like that on writs of error at 'Common law, could only be exercised under a reference from •the crown, and not on a mere petition to the lords. ^ At the meeting of parliament, after the prorogation in February, 1677, the commons abandoned their contest, and the jurisdic- tion was thereafter exercised without dispute.^ The jurisdic- and dilatory proceeding of correcting a decree by bill of review or , appeal, whicli were the remedies after enrollment of the decree, he was required to enter a caveat against enrollment, which would stay it long enough to give him an opportunity to file his petition for a re- hearing. Mitford & T. PI. & Pr. in Eq. 488, 489; Adams, Eq. 397; Hughes V. Garner, 2 Younge & C. 335; Sheehy v. Muskerry, 7 Clark & F. 22; Dearman v. Wych, 4 Mylne & C. 550; McDermott v. Kealy, 1 Phillips, 267; Andrewes v. Walton, 8 Clark & F. 457. 3 Mitford & T. PI. & Pr. in Eq. 489. See 3 Bl. Comm. 454. < Mitford & T. PI. & Pr. in Eq. 489. See 3 Bl. Comm. 454. 5 Adams Eq. 397. For history of the occasion and nature of this contest, see Adams, Eq. 398, citing Hale, Jur. H. L., Hargrave's Pref. pp. xcix.-cxxiv. ; Governor of Ulster v. Bishop of Derry, Shower, Pari. ■ Cas. 81. 6 Adams, Eq. 398. See Hale, Jur. H. L., Hargrave's Pref. pp. cxxv.- clxvii.; Macqueen, Pr. 70-92. A resolution which the house of commons had previously passed, "that whosoever shall solicit, plead, or prosecute . any appeal against any commoner from any court of equity before the (799) §766 EQUITY PLEADING AND PRACTICE. [Ch. 40 tion was confined to appeals in equity, and did not extend either to the administrative power in lunacy, or to the jurisdictions conferred by statute, unless where such appeal was expressly given, or where the statutory jurisdiction was a mere exten- sion of a previous equity. '^ § 766. Appealable orders and decrees. The mode of obtaining the interposition of the appellate tribu- nal in the case of an appeal from the court of chancery was by petition of appeal, which might be preferred from an interlocu- tory, as well as from a final, order, in which respect appeals from courts of equity by petition differed from appeals by writ of error from the judgments of the courts of law, which would only lie where the judgments were final; the reason for the distinction being stated to be that courts of equity often de- cided the merits of a case in intermediate orders, and the per- mitting of an appeal in the early stage of the proceedings fre- quently saved the expense of further prosecuting the suit, but, in actions at law, no such orders intervened, consequently a writ of error could not be brought before final judgment.* Al- though appeals would lie to the house of lords from the interloc- utory orders of courts of equity, it was only in cases where such orders had been pronounced by the lord chancellor. In other cases, appeals from the inferior judges could not be maintained unless they had been signed and enrolled, in which case, as the signature of the lord chancellor (which was necessary before house of lords shall be deemed and taken a betrayer of the rights and liberties of the people of England," though not in terms rescinded, seems to have been the last act of resistance of the house of commons, which, at the meeting of parliament after the prorogation in February, 1677, appears to have tacitly abandoned the contest. Adams, Eq. 398. 7 Adams, Eq. 398, 399; Bignold v. Springfield, 7 Clark & F. 71. 8 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1633; Palmer, Pr. H. L. 1. It may, however, be stated that, as a general rule in the United States, the right of appeal is confined to final decrees, though by statute in many jurisdictions appeal may be taken from interlocutory orders appointing receivers, granting injunctions, and other matters of a similar nature. For distinction between interlocutory and final decrees, see supra, § 700. (800) Ch. 40] APPEALS. § 766 a decree or order could be enrolled) converted the decree or order, tliongli pronounced by the master of the rolls or a vice-chancellor, into a decree or order of the lord chancellor, an appeal would lie from it to the house of lords. Where a decree or order had been pronounced by the lord chancellor, no enrollment was necessary to enable the party aggrieved by it to appeal.® It was at one time thought that an enrollment of the decree was necessary before an appeal to the house of lords, but it is said by Mr. Daniell that such notion was erroneous, and originated in a mistake.-^" The enrollment of decrees for the purposes of appeal was only necessary where the decree appealed from had been pronounced by the master of the rolls or a vice- chancellor.^^ Under the English practice, except in the cases of an heir at law, or of a rector or vicar, who were entitled to is- sues as a matter of right, the granting of an issue was a discre- tionary act, but a mistake in the exercise of that discretion was a just ground of appeal; and therefore, if the court refused or granted an issue, and the court of review should think that the contrary decision would have been a sounder exercise of discre- tion, it would rectify the order of the court below accordingly.^^ No appeal would lie from an order not made in a suit.^^ An appeal would not lie from an order made by the court under the authority of an act of parliament, specially authorizing such 9 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1634. 10 2 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1222. See Parker v. Down- ing, 1 Mylne & K. 634; Staunton v. Oldham, 2 Atk. 383; Andrewes v. It Walton, 6 Jur. 519. 11 2 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1223; Cunyngham v. Cunyng- ham, Amb. 91; Barlow v. Bateman, 2 Brown, Pari. Cas. 272. See Wright V. Wright, 1 Ves. Sr. 326, 409. 12 2 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1289, 1290; Hampson v. Hamp- son, 3 Ves. & B. 43; Nicol v. Vaughan, 2 Dow. & C. 420. See Winchilsea V. Garetty, 1 Mylne & K. 253; Townsend v. Graves, 3 Paige (N. Y.) 457; Belknap v. Trimhle, 3 Paige (N. Y.) 601; Gardner v. Gardner, 22 Wend. (N. Y.) 526; Drayton v. Logan, Harp. Eq. (S. C.) 67. 13 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1634; Rochfort v. Ely, 1 Brown, Pari. Cas. 450. (801) Equity. — 51. § 767 EQUITY PLEADING AND PRACTICE. [Ch. 40 order, lanless the power of appeal was given by the act itself.-'* It was also held that a decree made on default of appearance at the hearing was incapable of being appealed from, unless a special ground was shown for indulgence.-'® After a de- cree was made absolute by default, and an appeal was car- ried up to the house of lords, the house would not allow any proofs to be read by appellant, because no proofs were, in such cases, read in the court below.-'*' A decree by consent could not be appealed from.-''^ In order to warrant an appeal, it was sufficient that some litigated question had been decided, and that it was certified by counsel to be fit for reconsideration.-'^ i 767. Manner of taking appeal. Under the English chancery practice, any person who felt himself aggrieved by a decree or order of the court of chancery was entitled, as a matter of right, to appeal to the house of lords.-'® A material difference existed with regard to the method of appealing to the house of lords from the decisions of courts of equity from that which was the practice in cases of appeal from the decisions of ordinary jurisdictions. In the latter case, the appeal was commenced by a writ of error, which was the sovereign's writ, commanding the record itself to be brought into the house of lords in order that it might be in- spected, and that -the errors assigned, if any be found to exist, li 3 Daniell, Ch. PL & Pr. (1st Am. Ed.) 1635; Wall v. Attorney Gen- eral, Lords' Journ. 1822; Palmer, Pr. H. L. 5. 15 Adams, Bq. 400; Booth v. Cres-wicke, Craig & P. 361; Stubbs v.' , 10 Ves. 30. See, also, 44th Order (English) of August, 1841. 16 2 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1209; Button v. Price, Finch, Prec. Ch. 212. 17 Adams, Eq. 400; Wood v. Griffith, 1 Mer. 35; Woodmason v. Doyne, 10 Clark & F. 22; Bradish v. Gee, Amb. 229; Harrison v. Rumsey, 2 Ves. Sr. 488. See, also, Coster v. Clarke, 3 Edw. Ch. (N. Y.) 405; Atkinson v. Manks, 1 Cow. (N. Y.) 709; French v. Shotwell, 5 Johns. Ch. (N. Y.) 564; Kane v. Whittick, 8 Wend. (N. Y.) 219. See supra, § 704. 18 Adams, Bq. 400. 18 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1633. (802) Ch. 40] APPEALS. § 767 miglit be corrected there, and it was only upon the production of the record itself that the house of lords acquired authority in that particular suit. In the case of appeals from the court of chancery, however, the proceeding in the house of lords was commenced by a petition from the party conceiving himself to be aggrieved, to the lords spiritual and temporal in parliament assembled, setting forth the proceedings below, and praying such redress as the circumstances of the case required. This petition was required to* be answered by the respondent, who generally admitted the proceedings below as stated in the pe- tition, and referred to them when produced, and it was upon the documents below, as set out and admitted in these pro- ceedings, and not upon the record itself, that the house pro- ceeded in hearing the appeal.^" Under the English practice, the manner of taking an appeal was by petition stating the or- der or decree complained of, and the subsequent orders, if any had been made, and praying for a reversal or variation. The petition was signed by two counsel, who must have been either counsel in the cause below, or attended as counsel on the appeal, and was required to be accompanied by a certificate that, in their opinion, there was reasonable cause for appeal. It was not necessary, though sometimes convenient, that the appeal should state the ground of objection. On appeal to the house of lords, it was required that, besides the mere petition of ap- peal, each party should deliver a printed case, signed by coun- sel, containing a narrative of facts, and a summary of the rea- sons on which he relied, and accompanied by an appendix of evidence.^^ A petition of appeal to the house of lords was nearly the same in form, mutatis mutandis^ as a petition for rehearing in the court of chancery.^^ Notice of an appeal was required to be given.^* The petition being filed in the proper 20 2 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1222. 21 Adams, Eq. 399. See Wood v. Milner, 1 Jac. & W. 616; Giffard v. Hort, 1 Sehoales & L. 398. 22 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1636. 23 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1636; Lords' Journ. 1812; Order of April 9, 1812. (803) § 767 EQUITY PLEADING AND PRACTICE. [Ch. 40 office of the court to which an appeal was taken, an order was obtained requiring the respondent to answer. The order was served on the respondent, who thereupon put in his answer to the petition.^* A petition of appeal, like all other petitions to the lords, was presented by a peer, who mentioned it to the house in the words of the title, and moved that the petition might be read. The clerk thereupon read the prayer, and the proper order was made as a matter of course. ^° Upon English appeals the time limited for answering was a fortnight, on Scotch appeals four weeks, and on Irish apeals five weeks from the date of the order. The order, in an English cause, was required to be served on the respondent, if in London, or his solicitor. If the appeal be from Ireland, the order was sent off without delay, to be served there. Care was required to be taken by the appellant's solicitor to enter into a recogni- zance, as hereinafter mentioned; otherwise the appeal would talU^ The mode of serving the order was by delivering a true copy of it, and at the same time showing the original order. An affidavit of service was required to be indorsed thereon in the usual form.^^ After an appeal had been lodged, the ap- pellant was, within eight days, required to enter into a recog- nizance to answer costs.^* Where the appellant was not in London, his solicitor, or some other person for him, might enter into it, for which leave of the house was obtained, which was done upon a motion, made by a lord.^^ The recognizance was not required in appeals by the attorney general on behalf of the crown.*" If an answer was not put in within the time limited 24 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1637-1641. 25 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1637; Palmer, Pr. H. L. 24. For form of such order, see 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1637. 26 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1638. 27 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1638. 28 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1638; Lords' Journ. 1710; Palmer, Pr. H. L. 25. 29 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1639. For form of the de- feasance of the recognizance, see 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1639. 30 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1639; Palmer, Pr. H. L. 28. (804) Ch. 40] APPEALS. § 767 for that purpose, a peremptory order on the respondent to an- swer might be obtained.^^ Answers to petitions were of two kinds, — general and special. A general answer admitted that the court made the decree or order as set forth in the petition, but, for greater certainty, referred to such decree or order when the same should be produced, and stated that the respond- ent was advised and apprehended that such decree or order was agreeable to equity and justice, and asked that the same be affirmed and the appeal dismissed with costs.** An answer was special when particular facts were stated or some specific matter was alleged, either upon the merits of the case or upon any defect in form in the appeal, such as that there were not proper parties, or that the decree or order appealed from did not become final, but remained under review or rehearing, or that the date or purport of the decree or order was erroneously stated in the appeal. Special answers fell into disuse.** Where both parties were dissatisfied with the determination of the court below, the respondent, as well as the appellant, might prefer a cross appeal.** The cross petition of appeal was in form the same as an original petition, except that it was en- titled, "The petition and cross appeal," etc., and specified the particular nature of the decree or order appealed from. It was presented and moved and an order made upon it in the same method as upon an original appeal.** ISTo recognizance for costs was necessary upon cross appeals.*^ The order to answer a cross appeal was served in the same manner as an or- der in the original appeal, but, the respondent in the cross ap- peal being the appellant in the original appeal, service of the order upon the agent of the respondent in the cross appeal was 31 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1639. For practice concern- ing such peremptory order, see 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.), 1639; Palmer, Pr. H. L. 28. 32 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1640, 1641. S3 3 Daniell, Ch. PL & Pr. (1st Am. Ed.) 1641. 3*3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1641; Palmer, Pr. H. L. 33. 35 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1642. 36 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1642; Palmer, Pr. H. L. 34. (805) §768 EQUITY PLEADING AND PRACTICE. [Ch. 40 sufficient.^ '^ The answer to a cross appeal was in the same form as that to an original appeal, except that the title was, "The answer of A. B. to the petition and cross appeal of 0. D.," and that, towards the end, instead of saying "that the de- cree," etc., "is just," it should be, "that the decree, in so far as complained of by the said CiD., is just and agreeable to equity," etc.*® The house of lords permitted an appeal to be amended after it had been presented.*® To obtain leave to amend, a petition was required to be presented and notice given to the opposite party.*'' The respondent might move to amend.*^ If an appeal was amended after a respondent had answered, and it was considered necessary that a new answer should be put in to the amended appeal, an order for leave to withdraw the former answer and put in the new answer might be ob- tained on petition. If the respondent failed to petition for such order, the appellant might proceed against him by a new peremptory order, and get the cause set down ex -parte.*^ Ap- peals might be vsdthdrawn by leave of the lords, obtained on pe- tition and notice to the adverse party.** § 768. Effect of appeal. The effect of a successful appeal is to render useless, either wholly or in part, any proceedings under the original decree. Under the English practice, it did not follow that they would 37 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1642; Palmer, Pr. H. L. 34. 38 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1642; Palmer, Pr. H. L. 34. 39 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1643; Bouchier v. Dillon, 5 Bligh (N. S.) 714. 40 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1643. 413 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1644. 42 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1644; Palmer, Pr. H. L. 42. 43 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1644; Palmer, Pr. H. L. 43. For right of appeal and procedure on appeal in the federal courts, see Foster, Fed. Pr. (3d Ed.) §§ 474-496; Desty, Fed. Proe. (9th Ed.); Beach, Mod. Eq. Pr. § 906 et seq. For appellate procedure generally, see Elliott, App. Proc, and American Digest (Century Ed.) tit. "Appeal and Error," vols. 2 and 3, §§ 1-4811, where the decisions in the various jurisdictions of the United States are digested. See, for English prac- tice, 2 Smith, Ch. Pr. 17-47. (806) Ch. 40] APPEALS. § 769 be stayed during its pendency, for it was presumed, until rever- sal, that the decree was right, and, if there were special grounds for requiring their stay, a distinct application must be made to the discretion of the court. If an order to stay them was made, it might be accompanied, in case of appeal, by the re- quirement that a similar order be applied for in the house of lords.** * § 769. Procedure on appeal. ' Under the English practice, after the answer was put in, either appellant or respondent might apply to the lords by mo- tion to have the appeal appointed to be heard.*^ Where two appeals related to the same subject, or the questions in both were similar, and one of them had been set down so as to stand several causes before the other, the house, upon petition, would order the second to stand next to the first.** If the appellant or respondent died before the hearing, the appeal was required to be revived by petition to the house, in the name of the de- ceased party's heir or personal representative, or both, as the occasion required, and supplemental cases delivered.*''^ On the hearing, one of the counsel for appellants opened the case, then the evidence on their side was read, and the other counsel for appellants made observations thereon; then one of the counsel for the respondents was heard, and the evidence on their side read, after which the other counsel for the respondents were heard, and one counsel only for the appellants replied.** « Adams, Eq. 401. See Storey v. Lennox, 1 Mylne & C. 685 ; Ciiy of Gloucester v. Wood, 3 Hare, 150. ^5 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1645. 46 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1645; Palmer, Pr. H. L. 48. 47 3 Daniell, Ch. PL & Pr. (1st Am. Ed.) 1645; Lords' Journal, 1813; Standing Order of March 20, 1823. See United States Supreme Court Eule 15; Green v. Watkins, 6 Wheat. (TJ. S.) 260; McClane v. Boon, 6 Wall. (U. S.) 244; Taylor v. Savage, 1 How. (U. S.) 282; United States Circuit Court of Appeals Rule 19. 48 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1649; Palmer, Pr. H. L. 68. (807) §770 EQUITY PLEADING AND PRACTICE. [Ch. 40 § 770. Determination of appeal. Under the English practice, when the arguments of coun- sel were finished, they withdrew from the bar, and the house, if then prepared, gave their judgment affirming the decree or order of the court below, with or without costs, or reversing or varying the same, according to the circumstances of the case. If any lord conceived that the decree or order was erroneous, he stated his reasons, and moved that it be reversed or varied. Should the rest of the house be of that opinion, a motion was put and carried, but, if it was opposed, then a debate ensued, and the question was put to vote, on which occasion proxies were not allowed; and, it being the rule of tike house to put the question for reversing the decree or order, unless, upon a di- vision, there was a majority for the reversal, it was affirmed.*^ The decree may usually be reversed or affirmed simply, or it may be corrected or modified by the court of review. If the decree was substantially right, the practice in England was to affirm it with modifications or exceptions.'*'' Sometimes the house, instead of reversing or affirming, gave directions to the court below to rectify its judgment, in which case the order of the house of lords was required to be made a rule or' order of the court of chancery. °^ Such rule or order of the court 49 3 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1649, 1650. 50 Mitford & T. PI. & Pr. in Bq. 489. In some of the American states, if a decree is decided to be erroneous in any particular, it is reversed, and a new decree Is entered, and, if It appear to tlie court of review that, for the purposes of justice, there ought to be further proceedings in the court below, the cause will be remanded for further proceedings, and the court, in its order remanding the cause, may express the rea- sons for doing so, and its opinion on all points which have been made before it, and which may be presented by the record, and the reasons and the opinion contained in the order are conclusive on the court below. In such a case, a transcript of the proceedings in the court of review is filed in the lower court, which thereafter enters an order virtually reinstating the case before it, and then proceeds with it as If no appeal had been taken, but in accordance with the decision of the court of review. Mitford & T. PI. & Pr. in Eq. 489, 490. 513 Daniell, Ch. PI. & Pr. (1st Am. Ed.) 1650; Attorney-General v. Scott, 1 Ves. Sr. 419. (808) Ch. 40] APPEALS. § 771 of chancery might be obtained as of course, upon motion, upon production of the order signed by the clerk of parliament.^^ Where evidence was rejected below which the house thought ought to have been received, the usual course was to remit the cause to the court below. It seems, however, that, before do' ing this, the house of lords would look at the rejected evidence in order to see whether, if it were admitted, it would affect the opinion of the house in forming their opinion.®* S 771. Costs. Under the English practice, it was held that, whatever be the result of the appeal, no costs of an appeal could be given against the respondent if he confined himself to supporting the original decree, but that, in the event of an affirmance or a trifling variation, they would generally be given to him.*** "If the costs of a suit are in the nature of relief, a miscarriage respecting them will be sufficient ground of complaint, e. g., where they are improperly given or refused out of an estate or fund; but the ordinary costs of suit are discretionary with the court, and, if the decision on the merits is admitted to be correct, the court will not rehear it on a mere question of costs. It is otherwise if, without going into the merits, it is apparent on the face of the decree that the order as to costs is at variance with a settled practice.^® * * * ^^ ^.^ j.]^g ^^gg ^f g^^ appeal which is a step beyond the ordinary procedure in a cause, they will sometimes be so given, though in a rehearing 52 3 Danlell, Ch. PI. & Pr. (1st Am. Ed.) 1650; Seton, Decrees, 392, note 2. 53 3 Daniell, Ch. PL & Pr. (1st Am. Ed.) 1652; MacCabe v. Hussey, 5 Bligh (N. S.) 715. 54 Adams, Eq. 400. See Farquharson v. Mabee, 3 Johns. (N. Y.) 553; Murray v. Blatchford, 2 Wend. (N. Y.) 121; Le Guen v. Gouvemeur, 1 Johns. Cas. (N. Y.) 522. 65 Attorney-General v. Butcher, 4 Russ. 181; Taylor v. Southgate, 4 Mylne & 0. 203; Angell v. Davis, 4 Mylne & C. 360; Chappell v. Purday, 2 Phillips, 227. (809) § 771 EQUITY PLEADING AND PRACTICE. [Ch. 40 below no costs would have been given, or tbey would have been paid out of the estate."®® 56 Adams, Eq. 400, 401. (810) CHAPTER XLI. BILLS OF INTERPLEADER. § 772. Definition and nature. A bill of interpleader lies where tlie complainant claims no relief against either of the defendants, but where, the defend- ants claiming of him the same debt or duty by different or separate interests, he is uncertain with which of the claims he ought to comply, in which case he may apply to a court of chancery by a bill of interpleader for leave to pay the money or deliver the property to the one to whom it of right belongs, and that he may thereafter be protected from the claims of both.^ The object of' such a bill is to protect a complainant standing in the situation of an innocent stakeholder, and where a recovery against him by one claimant of the fund might not protect him against a recovery by another claimant,^ and also 12 Barbour, Ch. Pr. 117; Mitford, Eq. PI. 48, 141; Story, Eq. PI. § 291; Cogswell v. Armstrong, 77 111. 139; Louisiana State Lottery Co. T. Clark, 16 Fed. 20; Adams v. Dixon, 19 Ga. 513, 65 Am. Dec. 608; National Park Bank of New York v. Lanahan, 60 Md. 477; Farley v. Blood, 30 N. H. 354; Mount Holly, Lumberton & Medford Turnpike Co. V. Ferree, 17 N. J. Eq. 117; Nash v. Smith, 6 Conn. 421; Cobb v. Rice, 130 Mass. 231; Varborough v. Thompson, 3 Smedes & M. (Miss.) 291, 41 Am. Dec. 626; Partlow v. Moore, 184 111. 119, 56 N. E. 317. In Hoggart V. Cutts, 1 Craig & P. 204, Lord Cottenham said: "The defini- tion of 'interpleader' is not and cannot now be disputed. It is where the plaintiff says: 'I have a fund in my possession in which I claim no personal interest, and to which you, the defendants, set up con- flicting claims. Pay me my costs, and I will bring the fund into court, and you shall contest it between yourselves.' " Cogswell v. Arm- strong, 77 111. 141. 2 2 Barbour, Ch. Pr. 117; Badeau v. Rogers, 2 Paige (N. Y.) 209; Hastings v. Cropper, 3 Del. Ch. 165; Hechmer v. Gilligan, 28 W. Va. 750; Ireland v. Kelly, 60 N. J. Eq. 308, 47 Atl. 51; Packard v. Stevens, 58 N. J. Eq. 489, 46 Atl. 250. (811) § 773 EQUITY PLEADING AND PRACTICE. [Ch. 41 to prevent the vexation and expense of different suits.* Where a person holds shares of stock in escrow under the terms of a contract, and has no interest in them except to deliver them to the person found to be entitled to them, and the defendants have made conflicting claims to them, and no collusion appears, a bill of interpleader will lie.* Where money is deposited in a bank, to be credited to another bank, the former is entitled to main- tain a bill of interpleader against the latter and another claim- ing such funds as the proceeds of property mortgaged by a depositor, and by the depositor wrongfully converted. This may be done, although the bank receiving the deposit had no- tified the bank to whose credit the deposit was made.^ A bill of interpleader is an original bill.* Where a party desires to avail himself of such a bill, he should do so by an original bill, and not by a cross bill in a former suit.'' But if a cross bill contains all the substantial allegations of a bill of interpleader, including a prayer for process and relief, it may be regarded as an original bill.* § 773. Requisites to maintenance. The essential requirements of a good bill of interpleader are (1) that the same thing, debt, or duty is claimed by both or all of the parties against whom relief is demanded; (2) that all the adverse title or claim is dependent on or is derived from a common source; (3) that the person asking the relief does not have or claim any interest in the subject-matter; (4) that he stands perfectly indifferent between those claiming the thing, 3 Livingstone v. Bank of Montreal, 50 111. App. 562; Platte Valley State Bank v. National Live Stock Bank, 155 111. 250, 40 N. E. 621. * Walker t. Bamberger, 17 TJtali, 239, 54 Pac. 108. 5 Platte Valley State Bank v. National Live Stock Bank, 155 111. 250, 40 N. E. 621. 6 Story, Eq. PI. § 291; Curtis v. Williams, 35 111. App. 527. 7 Curtis V. Williams, 35 111. App. 518. 8 Foss v. First Nat. Bank of Denver, 3 Fed. 185 ; Curtis v. Williams, 35 111. App. 527; Sammis v. L'Engle, 19 Fla. 800. (812) Ch. 4i] BILLS OF INTERPLEADER. § 773 debt, or duty, being in the position merely of stakeholder.^ To maintain this bill, the complainant must be in possession^ ° of some specific chattel or definite sum of money to which different parties make claim.^^ Such a bill will not lie if the complain- ant himself claims any interest in the property in dispute.-^ ^ He must stand neutral between the parties.^* Privity of some sort between all the parties, such as privity of estate or title or contract, and that the claim is all of the same nature, are es- sential to the maintenance of a bill of interpleader. Where the claimants assert their rights under adverse titles, and not in privity, and where their claims are of different natures, the bill cannot be maintained.^* Such a bill will not lie where i» Kile V, Goodrum, 87 111. App. 462, quoting 3 Pomeroy, Eq. Jur. § 1332; Morrill v. Manhattan Life Ins. Co., 183 111. 260, 55 N. E. 656. 10 2 Barbour, Ch. Pr. 118; Burnett v. Anderson, 1 Mer. 405; Martin v. Maberry, 16 N. C. 169; Mitchell v. Smart, 3 Atk. 606; Platte Valley State Bank v. National Live Stock Bank, 155 111. 250, 40 N. E. 621. 11 Lincoln v. Rutland & B. R. Co., 24 Vt. 639. Bills of interpleader have been frequently maintained where the several claimants, instead of claiming the whole fund or matter in dispute, have claimed different portions of the fund, when the aggregate of all the claims exceeded the full amount of the fund, and the complainant, being virtually a stake- holder, was unable to determine to whom or in what proportions the payments should be made. School Dist. No. 1 of Grand Haven v. Weston, 31 Mich. 85. 122 Barbour, Ch. Pr. 118; Story, Eq. PL § 297; Cogswell v. Arm- strong, 77 111. 139; Hathaway v. Poy, 40 Mo. 540; Blue v. Watson, 59 Miss. 619; Kerr v. Union Bank of Maryland, 18 Md. 396; Wells, Fargo & Co. V. Miner, 25 Fed. 533; Pickle v. Pickle, 10 N. J. Law J. 207; Shaw V. Coster, 8 Paige (N. Y.) 339, 35 Am. Dec. 690; Killian v. Bbbinghaus, 110 V. S. 568; Wing v. Spaulding, 64 Vt. 83, 23 Atl. 615, citing Toulmin V. Reid, 14 Beav. 499. 13 Wells, Fargo & Co. v. Miner, 25 Fed. 533. 14 2 Barbour, Ch. Pr. 119; Story, Bq. PI. § 293; Wells, Fargo & Co. V. Miner, 25 Fed. 533; Newman v. Commercial Nat. Bank, 156 111. 530, 41 N. E. 156; Dungey v. Angove, 2 Ves. Jr. 304, 310; Johnson v. Atkin- son, 3 Anstr. 798; First Nat. Bank of Morristown v. Bininger, 26 N. J. Bq. 345; North Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799, 52 Am. St. Rep. 780. "Where there is no privity between the claim- ants, where their titles are independent, not derived from a common source, but each asserted as wholly paramount to the other, the stake- holder is obliged, in the language of the authorities, to defend him- (813) §773 EQUITY PLEADING AND PRACTICE. [Ch. 41 the complainant denies any indebtedness, and that he has any funds in his hands on which any of the parties defendant have any claim, and his bill shows that he has a complete defense against each of the defendants.^ ^ It will not lie if the com- plainant is obliged to admit that, as to either of the defend- ants, he is a wrongdoer. Thus, a sheriff who, by virtue of an execution, levies upon property claimed by a third person and the plaintiff in the execution, may not file a bill of interpleader against such third person and the plaintiff in the execution to have them settle the right to the property between them- selves.-^* Such a bill does not lie at the suit of a member of a board of trade to compel persons to whom he has sold grain, and who are claiming damages for breach of contract, to liti- gate with the principal from whom the grain was purchased the question of the right to the fund deposited by the principal as margins.^'^ A bill of interpleader will not lie where a question to be tried is whether, by reason of the complainant's own act, he is under liability to each of the defendants.^* It will self as well as he can against each separate demand, — a court of equity will not grant him an interpleader. 3 Pomeroy, Eq. Jur. §§ 1323, 1324; Story, Eq. PI. § 293; Gibson v. Goldthwaite, 7 Ala. 281." Kyle v. Mary Lee Coal & Railway Co., 112 Ala. 606, 20 So. 851. 15 Hellman v. Schneider, 75 111. 422. ^ 16 2 Barbour, Ch. Pr. 118; Shaw v. Coster, 8 Paige (N. Y.) 339; Tyus V. Rust, 37 Ga. 574, 95 Am. Dec. 365; Quinn v. Green, 36 N. C. 299, 36 Am. Dec. 46; Coleman v. Chambers, 127 Ala. 615, 29 So. 58; Sllngsby V. Boulton, 1 Ves. & B. 334. Where there are no adverse claims to the money in the hands of the complainant, the bill will not lie. Partlow V. Moore, 184 111. 119, 56 N. E. 317. IT Ryan v. Lamson, 153 111. 520, 39 N. E. 979. 18 National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93 ; Newman V. Commercial Nat. Bank, 156 111. 530, 41 N. E. 156; Cochrane v. O'Brien, 2 Jones & L. 380 ; Desborough v. Harris, 5 De Gex, M. & G. 439. "The ofiBce of an interpleading suit is not to protect a party against a double liability, but against double vexation in respect of one liability. If the circumstances of a case show that the plaintiff is liable to both claimants, that is no case for interpleader. It is of the essence of an interpleading suit that the plaintiff shall be liable to one only of the claimants, and the relief which the court affords him is against the vexation of two proceedings on a matter which may be settled in a (814) Ch. 41] BILLS OF INTERPLEADER. § 773 lie, though the claim of one of the defendants be legal and the other equitable.^® A bill of interpleader will lie though the com- plainant holding the disputed fund has not been sued at all, or has been sued by one only of the conflicting claimants.^" It is laid down as a rule that bills of interpleader ought not to be en- ■couraged, and should not be filed except in cases where the com- plainant can in no other way be protected from unjust litigation in which he has no interest,^^ and that it is not necessary to file a bill of interpleader where the holder of the fund is already a party to a suit in a court of chancery brought by one claimant .against the other to settle the right to the funds in his hands. The holder of the fund in such a case may apply by petition in that suit for leave to pay the fund into the court, to abide the •event of the litigation between the other parties.^^ But it has single suit." Connecticut Mut. Life Ins. Co. v. Tucker (R. I.) 49 Atl. 26; Crawford v. Fisher, 1 Hare, 436; National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93. "The rule is well settled that a complainant who is under any personal liability to defendant in respect to the mat- ter concerning which he asks that defendant be compelled to inter- plead cannot maintain his suit against him." Ter Knile v. Reddiek (N. J. Eq.) 39 Atl. 1062; Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680. 19 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Newhall v. Kas- tens, 70 111.156; Richards v. Salter, 6 Johns. Ch. (N. Y.) 445; Westervelt V. Ackerman, 3 N. J. Eq. 325; McClintock v. Helberg, 168 111. 384, 48 N. E. 145. Where one claims a fund under a contract with the holder thereof, and another claims a part thereof under a contract with the contractor, the holder may file a bill of interpleader, and it is not necessary, to sus- tain such bill, that each of the claimants assert a right under contract with the holder. Ireland v. Kelly, 60 N. J. Eq. 308, 47 Atl. 51. See, also, Lapenta v. Lettieri, 72 Conn. 377, 44 Atl. 730. 20 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Newhall v. Kastens, 70 111. 156; Richards v. Salter, 6 Johns. Ch. (N. Y.) 445; School Dist. No. 1 of Grand Haven v. Weston, 31 Mich. 85. 21 2 Barbour, Ch. Pr. 120; Badeau v. Rogers, 2 Paige (N. Y.) 209; Cur- tis v. Williams, 35 111. App. 533; Green v. Mumford, 4 R. I. 313; Shaw V. Chester, 2 Edw. Ch. (N. Y.) 405; Long v. Barker, 85 111. 431; Killian V. Bbbinghaus, 110 U. S. 568. 22 2 Barbour, Ch. Pr. 120; Bedell v. Hoffman, 2 Paige (N. Y.) 199. ■See, also, Curtis v. Williams, 35 111. App. 518; Lowe v. Richardson, 3 TVIadd. 277. (815) §775 EQUITY PLEADING AND PRACTICE. [Ch. 41 been also held that the mere fact that a party has another equi- table remedy will not prevent him from maintaining a bill of in- terpleader f^ and there are decisions in which the right to file a bill of interpleader has been sustained, even when a bill was already pending in which all the parties were in court, and injunctions have, in such cases, been issued in the interpleader suit to restrain proceedings in the prior suit.^* § 774. When the bill should be filed. A bill of interpleader ought to be filed immediately after or before the commencement of proceedings at law, and should not be delayed until after a verdict or judgment has been ob- tained. ^^ § 775. Frame of a bill of interpleader. The complainant must show that he is a mere stakeholder, without personal interest in the controversy, and that the re- spective claims of the parties claiming the funds or property in his hands are of the same nature and character ;^^ and that 23 Curtis V. Williams, 35 111. App. 531. See Board of Education of City of Atchison v. Scoville, 13 Kan. 17. 2* Curtis V. Williams, 35 111. App. 518; Kuhl v. Traphagen's Ex'r, 9 N. J. Law J. 343; Warington v. Wheatstone, Jac. 203; Morgan v. Mar- sack, 2 Mer. 107; Crawford v. Fisher, 10 Sim. 479; Prudential Assurance Co. V. Thomas, 3 Ch. App. 74. 25 2 Barbour, Ch. Pr. 120; Cornish v. Tanner, 1 Younge & J. 333; Moore v. Hill, 59 Ga. 760 ; Union Bank of Maryland v. Kerr, 2 Md. Ch. 460; Yarborough v. Thompson, 3 Smedes & M. (Miss.) 291, 41 Am. Dec. 626; Haseltine v. Brickey, 16 Grat. (Va.) 116; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. See, however, Wester- velt v. Ackerman, 3 N. J. Bq. 325. But defending a suit at law, if It be not too far persisted in, will not prevent the filing of the bill. Curtis v. Williams, 35 111. App. 518; Jacobson v. Blackhurst, 2 Johns. & H. 486. And it has been held that it was no objection to an inter- pleader that it was filed after a verdict at law, where the action at law was only to ascertain the amount of damages. Hamilton v. Marks, 5 De Gex & S. 638. 26 2 Barbour, Ch. Pr. 120; Story, Eq. PI. § 293; Shaw v. Coster, 8 Paige (N. Y.) 339; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Anderson v. Wilkinson, 10 Smedes & M. (Miss.) 601; McEwen v. Troost, 1 Sneed (Tenn.) 186. (816) Ch. 41] BILLS OF INTERPLEADER. g 775 he is ignorant of the rights of the respective parties who are called upon by him to interplead ; or that at least there is some doubt, in point of fact, to which claimant the debt or duty belongs, so that he cannot safely pay or render it to one, with- out risk of being liable for the same debt or duty to the other.^'^ Such a bill cannot be sustained where, from the bill itself, it appears that one of the defendants is clearly entitled to the debt or duty claimed, to the exclusion of the other. It is nec- essary that the complainant should be uncertain to whom the right belongs.^* The complainant must show that he has a right, to compel the defendants to interplead, whatever rights they may claim; otherwise, the bill will be dismissed, however proper in other respects the case might be for interpleader.^^ The bill should also show that there are proper persons, in esse, capable of interpleading and of setting up opposite claims, for otherwise the objects of the bill would be unattainable.^" The claims of the defendants should be specifically set forth, so that they may appear to be of the same nature and character, and a fit subject of a bill of interpleader.^^ The bill would be de- fective if it did not admit and show a title in each of the claim- 27 2 Bartour, Ch. Pr. 121; Shaw v. Coster, 8 Paige (N. Y.) 339; State Ins. Co. y. Gennett, 2 Tenn. Ch. 82. 28 2 Barbour, Ch. Pr. 118, 119 ; Mohawk & H. R. Co. y. Clute, 4 Paige (N. Y.) 384; Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Varrian v. Berrien, 42 N. J. Eq. 1, 10 Atl. 875. 28 2 Barbour, Ch. Pr. 121; Mitford, Eq. PI. 142; McEwen v. Troost, 1 Sneed (Tenn.) 186; Home Life Ins. Co. of New York y. Caulk, 86 Md. 385, 38 Atl. 901. 30 Story, Eq. PI. § 295; 2 Barbour, Ch. Pr. 121; Metcalf v. Hervey, 1 Ves. Sr. 248. SI Story, Bq. PI. § 294; 2 Barbour, Ch. Pr. 121; Varrian y. Berrien, 42 N. J. Eq. 1, 10 Atl. 875. But complainant should not attempt to show facts on which the title of each claimant is based, but should state only generally the nature of their claims. Shaw v. Coster, 8 Paige (N. Y.) 339, 35 Am. Deo. 690; Westervelt v. Ackerman, 3 N. J. Eq. 325; Dungey y. Angove, 2 Ves. Jr. 311. He is not expected to set forth such claims with as much accuracy as the claimants themselves would do. Westervelt y. Ackerman, 3 N. J. Eq. 325. (817) Equity. — 52. § 775 EQUITY PLEADING AND PRACTICE. [Ch. 41 ants.*^ The complainant must also offer to bring the fund in dispute into court to enable the court to compel a compliance with such offer upon the application of either of the other par- ties, and it is said by Lord Kedesdale that, if he does not do so, it is perhaps, in strictness, a ground for demurrer.*^ If such offer is not made, the court, upon application of either of the defendants, will order the complainant to bring the prop- erty or pay the money into court.** If the claim is for goods, it is sufficient to offer to bring the value of the goods into court.*^ The bill should pray that the defendants may set forth their several titles, and may interplead and settle, and adjust their demands between themselves, and that the com- plainant may be indemnified.*^ If any suits at law are brought against the complainant, the bill may also pray for an injunc- tion to restrain the claimants from proceeding until the right is determined, but, in general, the money must be brought into court before it will act on this part of the prayer.*'^ 3^2 Barbour, Ch. Pr. 121; Story, Eq. PI. § 296; Mitford, Bq. PI. 141, 142; East India Co. v. Edwards, 18 Ves. 376; Pusey & Jones Co. v. Miller, 61 Fed. 401; Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 So. 480; Starling V. Brown, 7 Bush (Ky.) 164. 33 Gardiner Sav. Inst. v. Emerson, 91 Me. 535, 40 Atl. 551; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901; 2 Barbour, Ch. Pr. 122; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Shaw V. Coster, 8 PaigS (N. Y.) 339; Starling v. Brown, 7 Bush (Ky.) 164; Chase v. Manhardt, 1 Bland (Md.) 333; Ammendale Normal Inst. v. Anderson, 71 Md. 128, 17 Atl. 1030; Parker v. Barker, 42 N. H. 78, 77 Am. Dec. 789; Barroll v. Forman, 88 Md. 188, 40 Atl. 883. A demurrer will not lie in such a case, although complainant must pay the money in before taking any steps in the case. Meux v. Bell, 6 Sim. 175; Nash v. Smith, 6 Conn, 421. See, also, Blue v. Watson, 59 Miss. 619; Shaw V. Chester, 2 Edw. Ch. (N. Y.) 405. 3il Maddock, Ch. Pr. 143; Nash v. Smith, 6 Conn. 421. 35 Burnett v. Anderson, 1 Mer. 405. Where land is the su'Dject of the controversy, the complainant ought to make conveyances of the same, ready for delivery to each of the claimants, and if he has not done so at the filing of the bill, and in the bill offered to deliver a deed to the party who shall be decreed to be entitled, the court will order such deeds to be made and filed with the clerk, subject to fur- ther order. Farley v. Blood, 30 N. H. 354. 36 2 Barbour, Ch. Pr. 122 ; Mitford, Bq. PI. 49. 37 2 Barbour, Ch. Pr. 122; Mitford, Bq. PI. 49; Story, Eq. PI. § 297; (818) Ch. 41] BILLS OF INTERPLEADER. § 776 § 776. Form of bill of interpleader. iTitle of court, and address to the court.] Your orator, J. R., of the city of Chicago, county of Cook, and state of Illinois, respectfully shows unto your honors that on or about the 26th day of June, 1891, your orator purchased of D. S., a defendant liereinafter named, a certain quantity of coal then being on board a Tessel called "The James," amounting to one thousand (1,000) tons, ior which your orator agreed to pay the said D. S. the sum of fifteen hundred dollars (?1,500), and to give his promissory note for said amount, payable in. thirty (30) days from the said 26th day of June; that said coal was delivered to your orator, and he paid on account of such consideration money one hundred dollars (JlOO). And your orator further shows that some time afterwards, and about the first day of July, 1891, C. D., of the said city of Chicago, caused an attachment to be sued out of the circuit court of said Cook county against one W. W., as an absconding debtor; that writs of attachment were issued in the usual form to the sheriff of Cook county, who gave notice to your orator not to pay over to any person except him, the said sheriff, any property or money of or belonging to the said W. W., and, frJther, that the said W. B., the sheriff aforesaid, and the attorney of the defendant, C. D., informed your orator that the said coal so purchased by your orator as aforesaid of the said D. S. was the property of the said W. W., for whom the said D. S. was only an agent, and insisted, and gave notice to your orator, that he would be held liable if he paid the residue of such moneys, or any part thereof, to the said D. S. And your orator further shows that he made application to the said C. D. for leave to pay over such money to the said D. S. without sub- jecting himself to any responsibility therefor to him, which he posi- tively refused to do. And your orator also applied to the said D. S. to relieve or secure your orator against the effect or operation of such attachment, and from any responsibility in the premises, but he, the said D. S., has wholly refused so to do, and has commenced an action at law in the circuit court of said Cook' county to recover the balance of the said money agreed upon as the price of said coal. Your orator further shows that he has always been willing to pay the balance of such money to such person or persons as should be lawfully entitled to receive the same, and to whom he could pay the same with safety, and ^he hereby offers to pay the same into this court. Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Shaw v. Chester, 2 Bdw. Ch. (N. Y.) 404; Thanet v. Paterson, Barnard. 250; Clindennin T. O'Keeffe, 1 Hogan, 118. (819) § 777 EQUITY PLEADING AND PRACTICE. [Ch. 41 Your orator further shows that he does not in any manner collude with either the said D. S. or C. D. touching the matters in question in this cause; that he has not exhibited this bill at the request of such defendants, or any or either of them, and that he has not been indemnified by such defendants, or any or either of them, but merely of his own free will, and to avoid being molested and injured, touch- ing the matters contained in said bill: Wherefore, and as your orator can only have adequate relief in this court, to the end that the said D. S. and C. D., who are made defend- ants hereto, may Interplead and settle their rights to the said sum of money, and that your orator may be at liberty to pay the same into this court, and that the said D. S. may be enjoined and restrained from further proceeding in the suit at law, so as aforesaid commenced by him against your orator, and that the said C. D. may be enjoined and restrained from commencing any suit against your orator touch- ing the premises, and that your orator, upon payment into the court of such amount, and procuring the said defendants to interplead, ac- cording to the course of this court, may be directed to be discharged from all liability to said defendants in the premises, and may have his costs therein [prayer for general relief J. May it please your honors [here insert prayer for process and in- junction]. J. R., Complainant. E. F., Solicitor for Complainant. [Add usual form of verification, which is sufBcient, as the es- sential facts are stated in the foregoing form of bill.]38 § 777. Affidavit of noncoUusion. In bills of interpleader, an affidavit is always required of the complainant that he does not collude with either of the defend- ants. The want of such affidavit is a ground for demurrer.*^ If the bill is filed by an officer in behalf of a corporation, he must annex a like affidavit, and add that, to the best of his knowledge and belief, the corporation does not collude with 38 For aflldavit of noncoUusion to be annexed to bill, see post, § 778. The foregoing form of bill is taken substantially from 3 Hoff- man, Ch. Pr. ccxxi. 39 Story, Eq. PI. § 291; 2 Barbour, Ch. Pr. 121; Mitford, Eq. PI. 143; Curtis V. Williams, 35 111. App. 518; Metcalf v. Hervey, 1 Ves. Sr. 248; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Tyus v. Rust, 37 Ga. 574, 95 Am. Dec. 365; Blue v. Watson, 59 Miss. 619; Farley v. Blood, 30 N. H. 354; Ammendale Normal Inst. v. Anderson, 71 Md. 128, 17 Atl. 1030; Shaw v. Chester, 2 Edw. Ch. (N. Y.) 405; Statham v. Hall, 1 Turn. & R. 30; Home Life Ins. Co. of New York v. Caulk, 86 (820) Ch. 41] BILLS OF INTERPLEADER. g 777 the defendants.** The affidavit need not state that the bill is filed at the complainant's expense;*^ nor need the complainant swear that the bill was filed without the knowledge of either of the defendants.*^ Where the bill is sworn to, it seems un- necessary to annex an afiidavit. It would probably be sufficient to make the statement in the bill itself.*^ The court will not determine upon counter affidavits whether the affidavit denying collusion is false.** Such averment of no collusion is conclu- sive upon a motion for preliminary injunction to restrain pend- ing suits.*^ Objection that the bill has no affidavit of noncoUu- sion is waived by failure to demur for that cause, or make other suitable objection.** Where there are several complainants, all must join in the affidavit, or it must show satisfactorily why the other complainants do not join.*^ But where the complain- ants are stated in the bill to be partners, an affidavit by one that the bill is not filed in collusion is held sufficient.** Md. 385, 38 Atl. 901. The aflBdavit is not required in Connecticut. Nash V. Smith, 6 Conn. 421. *oBignold V. Audland, 11 Sim. 24, 28; Hechmer v. Gilligan, 28 W. Va. 750. *i Metcalf V. Hervey, 1 Ves. Sr. 248. *2 Stevenson v. Anderson, 2 Ves. & B. 410. 43 2 Barbour, Ch. Pr. 121; Curtis v. Williams, 35 111. App. 518. 4*2 Barbour, Ch. Pr. 121; Langston v. Boylston, 2 Ves. Jr. 101; Curtis v. Williams, 35 III. App. 518; Manby v. Robinson, 4 Ch. App. 347; Toul- min V. Reid, 14 Beav. 499; Fahie v. Lindsay, 8 Or. 474. 45 Curtis v. Williams, 35 III. App. 518. It has been held that, where there is a, suspicion of collusion, the court will direct an inquiry into the circumstances. Dungey v. Angove, 2 Ves. Jr. 304. 46 Gibson v. Goldthwaite, 7' Ala. 281, 42 Am. Dec. 592; Biggs v. Kouns, 7 Dana (Ky.) 405; McElwaine v. Willis, 3 Paige (N. Y.) 505. It seems that the objection should be taken by special demurrer. Davis v. Davis, 96 Ga. 136, 21 S. E. 1002; Williams v. Wright, 20 Tex. 499. But It has been held that the objection may be taken at the hearing. Hazard V. Hodges, 17 N. J. Eq. 123. Where the jurat to a bill of interpleader stated that the complainant deposed that it was true in substance and in fact, though in the jurat the bill was called a plea, the jurat, being attached to the bill, will be understood as referring to that, and noth- ing else. Schneider v. Seibert, 50 111. 284. 4T2 Daniell, Ch. PI. & Pr. (4th Ed.) 1562; Gibbs v. Gibbs, 5 Wkly. Rep. 243. 48 Bliss V. French, 117 Mich. 538, 76 N. W. 73. (821) §780 EQUITY PLEADING AND PRACTICE. [Ch. 41 § 778. Form of affidavit of noncoUusion. [Title of court and cause.] State of , J y ss. County of . I i A. B., the above-named complainant, makes oath and says that he does not in any respect collude with any or either of the defendants above named touching the matters in question in this cause, nor is he in any manner indemnified by any or either of the defendants, nor does he exhibit his bill at the request or with the knowledge of any or either of them, but merely of his own free will, and to avoid being sued or molested touching the matters contained in his said bill. A. B. Subscribed and sworn to before me this day of , A. D. 19—. J. K., Notary Public.i» 5 779. Payment of money into court. Tlie complainant in a bill of interpleader must bring the fund into conrt before be can be allowed to take any steps in the cause.®" Where a bill is filed by a party having special funds in his hands calling on those interested therein to interplead, a decree discharging such complainant may be entered on his de- positing the fund in court.®^ But he has no right to be dis- missed until the cause is at issue. When that stage is reached, he may apply for a decree.®^ § 780. Parties. Defendants in a bill of interpleader cannot object that a third person was not made a party, where the want of him can- not affect their rights, especially when the objection is first made on appeal.^* Where one of the claimants files a dis- claimer, another claimant cannot be introduced.®* One who 49 This form is taken from Van Heythuysen, Eq. Drafts. 299. 50 2 Barbour, Ch. Pr. 123; Meux v. Bell, 6 Sim. 175. 51 Temple v. Lawson, 19 Ark. 148. 52 Lamon v. McKee, 7 Mackey (D. C.) 446. 53 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592. Bi Michigan & Ohio Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086. (822) Ch. 41] BILLS OF INTERPLEADER. § 782 makes no claim to the subject of the action should not be made a party."*^ Where an incorporated mutual benefit association is liable to two or more claimants for a death benefit, the treasurer of said association cannot file a bill of interpleader to have the , defendants litigate their claim, but such bill must be filed by the corporation itself.'® § 781. Process. Upon a bill of interpleader process issues, as in the case of original bills; and in case of nonresidents, proceedings are had as in the ease of original bills. Where one claimant is out of the jurisdiction, the complainant must bring him in within a reasonable time. If he fails to do so, the other defendant is, upon indemnifying the complainant against those out of the jurisdiction, entitled to the thing in dispute. ^^ § 782. Taking the bill pro confesso. If one of the defendants does not appear, the bill may be tak- en as confessed as to him.'^ If a defendant permits a bill of interpleader to be taken as confessed against him, it is an ad- mission that, as to him, the bill was properly filed, and that he has made an improper claim against the fund, and the other defendant is then entitled to a decree. °® B6 Keteham v. Brazil Block Coal Co., 88 Ind. 51d. 66 Hechmer v. Gilligan, 28 W. Va. 750. The following cases treat of parties to bills of interpleader: Bell v. Gunn, 94 Ga. 642, 21 S. E. 899; Newhall y. Hastens, 70 111. 156; Browning v. Watkins, 10 Smedes & M. (Miss.) 482; Blake v. Garwood, 42 N. J. Eq. 276, 10 Atl. 874; Miller V. Ellison, .38 N. C. 123; Gill v. Cook, 42 Vt. 140; George v. Pilcher, 28 Grat. (Va.) 299, 26 Am. Rep. 350; Hines v. Spruill, 22 N. C. 93. 5 7 2 Barbour, Ch. Pr. 124; Stevenson v. Anderson, 2 Ves. & B. 411. A bill of interpleader by a benefit society to determine conflicting claims to the proceeds of a certificate, the money being paid into court, is not a proceeding in rem, and a judgment by default against a claimant who- was served outside the state, and who does not appear in the suit, is a nullity. Gary v. Northwestern Masonic Aid Ass'n (Iowa) 50 N. W. 27. See s. c, 87 Iowa, 25, 53 N. W. 1086, where the opinion on rehearing is found. 68 2 Barbour, Ch. Pr. 123. 59 2 Barbour, Ch. Pr. 124; Badeau v. Rogers, 2 Paige (N. Y.) 209; (823) § 784 EQUITY PLEADING AND PRACTICE. [Ch. 41 5 783. Replication. If the defendants, or either of them, deny the allegations in a bill of interpleader, or set up distinct facts in bar of the suit, the complainant must reply to the answer and close the proofs in the usual manner, before he can bring his cause to a hearing.®" § 784. Injunction. On the filing of a bill of interpleader, a preliminary in- junction will issue to restrain the prosecution of pending suits. It is an incident of the principal order that the defendants in- terplead. It makes no difference that positive injury to ensue is not made to appear. If the bill is entertained, the injunc- tion follows. Where the bill contains equity, an injunction will not be denied merely because an injunction would not have been necessary had another remedy been chosen.®^ On motion for an injunction, the complainant's afiidavit of noncoUusion cannot be contradicted.®^ The usual order for an injunction upon a bill of this nature is that it issue upon the complainant's Cogswell V. Armstrong, 77 111. 139; Michigan. & Ohio Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086; Stevenson v. Anderson, 2 Ves. & B. 412. See Hambleton v. Rhind, 86 Md. 305, 38 Atl. 40. Where one of the defendants fails to interplead, and is defaulted, the complainant has no ground to dispute the claim of, the interpleading defendant, who is entitled to a decree. Cogswell v. Armstrong, 77 111. 139. If the defendant not appearing is an absentee, the other defendant, who appears, will not be entitled to the possession of the fund until the expiration of the time limited by the statute for the absent defendant to appear, unless he give security to repay the money in case the ab- sent defendant appears and establishes his right to it. 2 Barbour, Ch. Pr. 124, citing Aymer v. Gault, 2 Paige (N. Y.) 284. See McNamara v. Provident Sav. Life Assur. Soc, 114 Fed. 910, citing approvingly Beach, Mod. Bq. Pr. § 638; 2 Daniell, Ch. PI. & Pr. (5th Ed.) 1494. 60 2 Barbour, Ch. Pr. 123; City Bank v. Bangs, 2 Paige (N. Y.) 570; CuUen V. Dawson, 24 Minn. 66; Glasner v. Weisberg, 43 Mo. App. 214. See Leonard v. Jamison, 2 Edw. Ch. (N. Y.) 136. 61 Curtis V. Williams, 35 111.' App. 518. 62 Curtis V. Williams, 35 111. App. 518; Langston v. Boylston, 2 Ves. Jr. 101; Stevenson v. Anderson, 2 Ves. & B. 407; Manby v. Robinson, 4 Ch. App. 347; Toulmin v. Reid, 14 Beav. 499; Fahie v. Lindsay, 8 Or. 474. (824) Ch. 41] BILLS OF INTERPLEADER. | 786 paying the money into court. Tkis is a condition precedent, and an order for an injunction not containing it will be va- cated.®^ If the money cannot be paid in in time to stay a trial, application should be made to vary the order on the special grounds.®* Such injunction stays all proceedings. It may be moved for at once on payment of the money into court, and before the time for answering has expired.®^ § 785. Form of order for injunction on bill of interpleader. [Title of court and cause.] On reading and filing the bill of interpleader in this cause, duly verified, and an aflBdavit of noncollusion [or containing an averment of noncollusion], on motion of B. F., solicitor for the complainant, it is ordered that an injunction issue, pursuant to the prayer of said bill, upon the complainant paying into the liands of the registrar [or clerk] of this court the sum of fourteen hundred dollars (?1,400) men- tioned in the said bill. I 786. Demurrer. If the bill does not show on its face a right to compel the de- fendants to interplead, a demurrer lies.®® Want of an affidavit of noncollusion is ground for demurrer, as is failure to show that each of the defendants claims a right.®'^ Where the ob- jection appears on the face of the bill, it should be raised by de- es 2 Barbour, Ch. Pr. 123 ; Bliss v. French, 117 Mich. 538, 76 N. W. 73. 64 2 Barbour, Ch. Pr. 123; Sieveking v. Behrens, 2 Mylne & C. 581. 05 2 Barbour, Ch. Pr. 123 ; Warington v. Wheatstone, Jac. 205 ; Vicary V. Widger, 1 Sim. 15. See, also, James v. Sams, 90 Ga. 404, 17 S. E. 962 ; Weikel v. Cate, 58 Md. 105 ; Kuhl v. Traphagen's Ex'r, 9 N. J. Law J. 343; City Bank v. Bangs, 2 Paige (N. Y.) 570. Ordinarily, a special receiver will not be appointed to take possession of the property with- out notice, but there are exceptions to this rule, as where immediate action is necessary to prevent great loss or injury, and especially where It is not sought to dispossess the party of his property. Oil Run Petro- leum Co. V. Gale, 6 W. Va. 525. 68 2 Barbour, Ch. Pr. 122. 67 2 Barbour, Ch. Pr. 122; Mitford, Eq. PI. 143; Gibson v. Goldthwalte, 7 Ala. 281, 42 Am. Dec. 592; Shaw v. Chester, 2 Edw. Ch. (N. Y.) 405; Mount Holly, Lamberton & Medford Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Shaw v. Coster, 8 Paige (N. Y.) 339, 35 Am. Dee. 690. (825) §788 EQUITY PLEADING AND PRACTICE. [Ch. 41 murrer.^* Failure to so demur affects the allowance of costs.®* Failure to bring, or to offer to bring, tbe fund into court, is a ground of demurrer.^" 5 787. Answer. Tbe defendants may answer, admitting or denying the facts stated in the bill.''^^ It is held that the amount of the fund or matter in the hands of the complainant, upon which hostile claims are alleged to have been made, must be taken to be as stated by the complainant, and cannot be controverted by the an- swers for the purpose of having it adjudicated upon.'^^ If one of the defendants to a bill of interpleader in his answer makes a claim against the complainant beyond the amount admitted to be due and paid into court, and which is not claimed by the other defendants, he will be permitted to proceed at law to establish his right to that part of his claim not in controversy with the other defendants.''^ § 788. Cross bill. A defendant in a strict interpleader suit cannot have relief by cross bill against the complainant. ''* 68 2 Barbour, Ch. Pr. 123; Shaw v. Coster, 8 Paige (N. Y.) 339. 08 2 Barbour, Ch. Pr. 123. 70 Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. 71 2 Barbour, Ch. Pr. 123. An answer denying the right to the relief prayed saves the objection to the case made by the bill, where it prays that the same advantage may be had of the answer as of a demurrer. Sachsel v. Farrar, 35 111. App. 277. 72 Adams v. Dixon, 19 Ga. 513 ; Atkinson v. Manks, 1 Cow. (N. Y.> 704. 73 2 Barbour, Ch. Pr. 123; City Bank v. Bangs, 2 Paige (N. Y.) 570. But see Orient Ins. Co. v. Reed, 81 Cal. 145, 22 Pac. 484. 74 Wakeman v. Klngsland, 46 N. J. Eq. 113, 18 Atl. 680. But It has been held that a cross bill by one of two persons against whom a bill of interpleader is filed, setting up that there was a much larger sum in complainant's hands collected by him as an attorney, and praying for a discovery and account, is properly filed. Owen v. Apel, 68 111. 391. See, also, Penn Mut. Life Ins. Co. v. Union Trust Co. of San Francisco, 83 Fed. 891. (826) Ch. 41] BILLS OF INTERPLEADER. § 790 § 789. Evidence. In an interpleading suit, the answer of one of the defendants may be read against the others.''® Upon the hearing in such a suit, evidence is admissible to show that the complainant has re- tained possession of the subject of the suit under an indemnity from some of the defendants.''^ § 790. Hearing and decree. If the defendants or either of them deny the allegations in the bill, or set up distinct facts, the complainant must reply and close the proofs in the usual manner before he can bring his cause to a hearing; but where the defendant admits the facts stated in the bill, and on which the right to file such a bill rests, and sets up no new facts as against the complainant, or in bar of his suit, it seems to be sufficient for him to file a replication, and to set the cause down for a decree to interplead, without waiting until the proofs are taken as between the defendants.'''' 75 2 Barbour, Ch. Pr. 124; Bowyer v. Pritchard, 11 Price, 103. " 'The general rule is well established that the answer of one defendant can- not be read in evidence against another defendant. There are, how- ever, many exceptions to the rule. * * * In an interpleader suit, the complainant's office is widely different from that of a complainant in an ordinary suit in equity seeking to avoid a liability or to enforce some right against the defendant. Here the complainant comes into court with the money in his hand to discharge an acknowledged debt, which he is prevented by conflicting claims from paying to either of the claimants with safety to himself. His duty appears to be at an end when he has brought the rival claimants to interplead by filing their answers and putting the suit at issue. It is true he must show by his bill that each of the parties claims a right, else he makes out no case; but that is his whole case, and when the court sees, by the respective answers, that each defendant has made such claim, 1 can perceive no well-grounded reason for putting the complainant to other proof of that fact against the opposing defendants, respective- ly. That proof, if made by testimony, would consist almost entirely of the declarations and admissions of the respective defendants,' etc." Morrill v. Manhattan Life Ins. Co., 183 111. 260, 55 N. B. 656, quoting Balchen v. Crawford, 1 Sandf. Ch. (N. Y.) 380. 78 2 Barbour, Ch. Pr. 124; Statham v. Hall, Turn. & R. 30. ^^ City Bank v. Bangs, 2 Paige (N. Y.) 570. (827) §790 EQUITY PLEADING AND PRACTICE. [Ch. 41 The court disposes of the questions arising upon bills of inter- pleader in various modes, according to the nature of the ques- tion and the manner in which it is brought before the court. It is at liberty to take any recognized method of trial which will best accomplish justice in the particular case.'^® The practice is to first determine whether the interpleader will lie or not. If not, it is unnecessary to go further, but, if it will, then the complainant should be discharged from liability, with his costs, upon bringing the money or thing in dispute into court, and is thenceforth out of the suit, and the suit should thereupon pro- ceed upon issues properly joined between the defendants.^^ The only decree that can be made in a strict interpleader suit in favor of the complainant and against the defendants is that the complainant's bill was properly filed, giving him leave to bring the property in dispute into court, and allowing him costs out of the property, and directing the defendants to interplead and settle the conflicting claims which they set up to the prop- erty among themselves.®" The case then becomes a case be- 78 2 Barbour, Ch. Pr. 124; Kirtland v. Moore, 40 N. J. Bq. 106, 2 AU. 269; Temple v. Lawson, 19 Ark. 149. '9 Nortli Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799, 52 Am. St. Rep. 780; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 22 Minn. 7; First Nat. Bank of Brattleboro v. West River R. Co., 46 Vt. 633; Parley v. Blood, 30 N. H. 354; Hall v. Baldwin, 45 N. J. Eq. 858, 18 Atl. 976; CuUen v. Dawson, 24 Minn. 66. Where the decree on a bill of interpleader fully adjudicates the rights of the parties, and directs what party is entitled to the fund, the fact that a separate decree or order of interpleader was not entered can have no force. People's Sav. Bank v. Look, 95 Mich. 7, 54 N. W. 629. soWakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680; Sammis v. L'Engle, 19 Fla. 800; Newhall v. Hastens, 70 111. 156; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Farley v. Blood, 30 N. H. 354. A decree passed upon the filing of a bill of interpleader ordering the complain- ant to pay the money into court, and requiring the defendants to inter- plead and answer, is interlocutory, settling the rights of no party, and is at all times prior to a final decree subject to revision and alteration, being merely ancillary to further proceedings. Barth v. Rosenfeld, 36 Md. 604; Owings v. Rhodes, 65 Md. 408, 9 Atl. 903; Heald v. Rhind, 86 Md. 320, 38 Atl. 43. A decree of interpleader does not acquit the complainant of accountability for any other moneys than those paid (828) Ch. 41] BILLS OF INTERPLEADER. g 790 tween tlie defendants, as between a complainant and defend- ant.*^ The parties defendant stand before the court to litigate the questions of right pending between them to the same extent as if one had brought a bill against the other, predicated upon the same matter, and for the same purpose, and it is competent for them to make such adjustment of the controversy between them as they think best, and thus end the suit.*^ If the cause is ripe for a decision between the defendants, as well as between them and the complainant, the court settles the conflicting claims of the parties, and makes a final decree on the first hearing ; but if it is not in readiness for a decision as between the defendants, the court merely decides that the bill is properly filed, and dis- misses the complainant with his costs up to that time, and di- rects an action to be brought, or an issue, or a reference, to as- certain and settle the rights of the defendants to the fund in controversy.^^ Where sufficient appears on the pleadings to enable the court to judge between the defendants, it will pro- ceed to do so.®* If one of two parties defendant withdraws all claim to the fund, a decree that it be paid to the other is of course.®* Upon reference to a master to settle the rights of the defendants as between themselves, the court will give them the benefit of the discovery as against each other if they or either of into court, and the dismissal of the complainant should be without prej- udice to the right of any and of all the defendants to institute any ac- tion at law or in equity to recover from the complainant any demands which they or any of them may have for amounts due from him over and above the money paid into court. Lamon v. McKee, 7 Mackey (D. C.) 446. siRowe V. Matteson, 7 N. J. Eq. 131; Willson v. Salmon, 45 N. J. Eq. 257, 17 Atl. 815; Leonard v. Jamison, 2 Bdw. Ch. (N. Y.) 136; Jen- nings T. Nugent, 1 Moll. 134; Anonymous, 1 Vern. 351. 82 Horton v. Baptist Church & Soc. in Chester, 34 Vt. 309. 83 City Bank v. Bangs, 2 Paige (N. Y.) 570; Angell v. Hadden, 16 Ves. 203. See Sammis v. L'Engle, 19 Fla. 800; Farley v. Blood, 30 N. H. 354; Condict's Ex'rs v. King, 13 N. J. Eq. 375; First Nat. Bank of Brattleboro v. West River R. Co., 46 Vt. 633 ; North Pacific Lumber Co. V. Lang, 28 Or. 246, 42 Pae. 799; Gibson v. Goldthwaite, 7 Ala. 281. 84 Farley v. Blood, 30 N. H. 354. 85 Knight V. Yarborough, 7 Smedes & M. (Miss.) 179. (829) §790 EQUITY PLEADING AND PRACTICE. [Ch. 41 them desire it.*® It has been held that if, at thte time of filing the bill of interpleader, there was some plausible apprehension of a two-fold responsibility, yet if, before final decree, the dan- ger be removed, the equity on which the bill relies will entirely fail, and it will be dismissed.®^ If the bill is dismissed, there can be no further proceedings as between the defendants, for the court has no jurisdiction.*® If the bill is properly filed, the com- plainant is entitled to his costs out of the fund,*® but he is not, if the bill is improperly filed.^" The court may aJlow a complain- ant, where the bill is properly filed, his reasonable expenses, in- cluding solicitor's fees.®^ The defendant who has, by his wrong- ful claim, occasioned the suit, will ordinarily be required to pay the costs of the other defendant, and the costs of the com- plainant.®^ 8s City Bank v. Bangs, 2 Paige (N. Y.) 570. It is usually correct to confine the inquiry as to the rights of the claimants to ascertaining which one has the exclusive property in or right of possession of the thing in controversy, but the court may so shape its decree and dis- tribute the fund as to do complete equity between the parties, where the claimants have interpleaded and made no such objection to such a decree. Chandler v. Morey, 195 111. 596, 63 N. B. 512; Whitney v. Cowan, 55 Miss. 626. On a bill of interpleader which assumes that the complainant is a mere stakeholder, the complainant cannot be heard as to his liability. National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Minn. 7. ST Kerr v. Union Bank of Maryland, 18 Md. 396. 88 2 Barbour, Ch. Pr. 125; Jennings v. Nugent, 1 Moll. 134; Anony- mous, 1 Vern. 351. 89 2 Barbour, Ch. Pr. 125; Aymer v. Gault, 2 Paige (N. Y.) 284; Spring V. South Carolina Ins. Co., 8 Wheat. (U. S.) 268; Mason v. Hamilton, 5 Sim. 19. 90 Bedell v. Hoffman, 2 Paige (N. Y.) 199. See, also, Badeau v. Rog- ers, 2 Paige (N. Y.) 209; Atkinson v. Manks, 1 Cow. (N. Y.) 691. 91 Louisiana State Lottery Co. v. Clark, 16 Fed. 20; McCall v. Walter, 71 Ga. 287; Stevens v. Germania Life Ins. Co. (Tex. Civ. App.) 62 S. W. 824. See, also, Farley v. Blood, 30 N. H. 354. But see Insurance Co. V. Corbin, 12 Phila. (Pa.) 257; Groves v. Sentell, 153 U. S. 483; Cobb V. Rice, 130 Mass. 231; Gardiner Sav. Inst. v. Emerson, 91 Mie. 535, 40 Atl. 551 ; McNamara v. Provident Sav. Life Assur. Soc, 114 Fed. 910. 92 Parley v. Blood, 30 N. H. 354. If complainant acts unfairly and collusively, the costs will be taxed against him. Michigan & Ohio Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086. (830) €h. 41] BILLS OF INTERPLEADER. § 791 § 791. Form of interlocutory decree on bill of interpleauer di- recting a reference. [Title of court and cause.] This cause having been this day brought on to be heard upon the bill •of interpleader filed therein, upon the answers of the defendants, and the replication thereto, and the court having heard the argument of E. ,F., solicitor for the complainant, and R. S., solicitor for the defendant C. D., and W. H., solicitor for the defendant D. S., and being fully ad- vised in the premises: It is ordered, adjudged, and decreed that the bill of interpleader is properly filed, and that the defendants do interplead and settle the mat- ters in controversy in this suit between themselves, and for that pur- pose it is ordered, adjudged, and decreed that it be referred to G. B., one of the masters in chancery of this court, to inquire and report which of the defendants is entitled to the fund in controversy, and which has been deposited with the clerk of this court, and, if the said master shall be of opinion that any two or more of the defendants are equitably entitled to share in the same, that he also ascertain and re- port what portion of the fund belongs to each. And it is further ordered that, previous to the examination of any witness before the said master, either of the parties may present to said master on oath a written statement of his claim, and of the facts and circumstances on which it is founded, which statement shall be answered on oath by all the other defendants, to the satisfaction of the said master, and with like effect as if such answer were filed to a bill of discovery, and that, upon" such reference, either party is at liberty to proceed before said master in such manner as said master shall direct; and that the solicitor of each defendant have notice of all pro- ceedings before the said master. And it is further ordered, adjudged, and decreed that the said com- plainant be dismissed, with his costs of suit up to this time, to be taxed, to be paid out of the said fund in court; and this court does reserve the consideration of all questions of costs as between the said defendants, and all other questions and directions, until the coming in of the master's report, but with liberty to either party to apply for such other instructions or directions to the master as may be necessary or proper pending the reference. § 792. Bills in the nature of a bill of interpleader. It is laid down by some authorities that in many cases a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights where there : are other conflicting rights between third persons, though he (831) §792 EQUITY PLEADING AND PRACTICE. [Ch. 41 could not file a bill of interpleader, strictly so called.®^ A learn- ed authority has said : "As, for instance, if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the several claimants in the nature of a bill of in- terpleader for relief. So, it seems, a purchaser may file a bill in the nature of a bill of interpleader against the vendor or his assignee, and any creditor who seeks to avoid the title of the assignee, and pray the direction of the court as to whom the purchase money shall be paid. So, if a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons as to their title to the mortgage money, he may bring them before the court to ascertain their rights, and to have a decree for a redemption, so that he may make a secure payment to the party entitled to the money. In these cases, the plaintiff seeks relief for himseK; whereas, in an 'in- terpleading bill,' strictly so called, the plaintiff only asks that he may be at liberty to pay the money or deliver the property to the party to whom it of right belongs, and may thereafter be protected against the claims of both. In the latter case the only decree to which the plaintiff is entitled is a decree that the bill is properly filed, or, in other words, that he shall be at liberty to pay the money or bring the property into court, and have his costs, and that the defendants interplead, and settle the conflicting claims between themselves. So, a bill in the nature of an interpleading bill will lie by a bank which has of- fered a reward for the recovery of money stolen, and a propor- tionate reward for a part recovered, where there are several claimants of the reward, or a proportion thereof, one or more of whom have sued the bank. And in such a bill, all the claim- ants may be made parties, in order to have their respective 93 Provident Sav. Life Assur. Soc. v. Loeb, 115 Fed. 357; Story, Bq. PI. § 29713; 2 Story, Eq. Jur. § 824; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Bedell v. Hoffman, 2 Paige (N. Y.) 199. (832) Ch. 41] BILLS OF INTERPLEADER. | 792 claims adjusted."®* Tke statements of Mr. Justice Story have been criticised by the courts, and it has been said that the only distinction between a bill of interpleader and one in the nature of a bill of interpleader is that in the former case the com- plainant only asks to be permitted to pay the money into court, and thereupon to be discharged from liability to the adverse claimants, while, in the other, he claims some independent other relief to which he will be entitled upon the payment of the money, and that in no case has it been found that the com- plainant claimed any interest in the fund itself; and it is fiir- ther said that it is only in cases in which the complainant is en- titled to come into court upon some other ground of equitable ju- risdiction that he may, for the purpose of obtaining full relief, make defendants to his bill all parties claiming an interest in the money due by him.®^ 91 Story, Eq. PI. § 297b; Curtis v. Williams, 35 111. App. 518; Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Newhall v. Kastens, 70 111. 156. See, also, 2 Story, Eq. Jur. § 824, citing MohawK: & H. R. Co. V. Clute, 4 Paige (N. Y.) 384; Parks v. Jackson, 11 Wend. (N. Y.) 443; Bedell v. Hoffman, 2 Paige (N. Y.) 199; Mitchell v. Hayne, 2 Sim. & S. 63; Meux v. Bell, 6 Sim. 175; Anonymous, 1 Vern. 351; City Bank V. Bangs, 2 Paige (N. Y.) 570; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Goodrick v. Shotbolt, Finch, Prec. Ch. 333 et seq.; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. 95 Blue V. Watson, 59 Miss. 619, distinguishing many of the author- ities cited by Mr. Justice Story. See, also, Dorn v. Fox, 61 N. Y. 264, distinguishing these bills. "It is contended, however, that this is a bill in the nature of a bill of interpleader, and that such a bill lies by a party in interest to ascertain and establish his own rights, where there are other conflicting rights between third persons. This rule is thus stated in 2 Daniell, Ch. Pr. 1571, Story, Eq. PI. § 291, and Pomeroy, * » * but the cases cited in support of the text, and the general principles declared by the text and authorities, do not au- thorize the application of the rule to cases like the present, where the complainant seeks to mingle up and enforce a demand of his own upon the property or, thing with the demand that the other persons shall in- terplead. There can be no bill of interpleader, or bill in the nature of a bill of interpleader, when the defendants contest and litigate with the plaintiff himself as to the validity and allowance of a claim set up by himself. Such a rule is at variance with the very nature and (833) Equity. — 53. §792 EQUITY PLEADING AND PRACTICE. [Ch, 41 It is said that, unlike bills of interpleader, an affidaYit deny- ing collusion is unnecessary.®® purpose 01; a bill of interpleader. Under such, circumstances, the com- plainant has a personal interest in the result of the suit, directly an- tagonistic to that of respondents." Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 So. 480. Wherein bills in the nature of bills of Interplead- er and bills of interpleader differ, and what are the requisites of the former bills, do not clearly appear. Nofsinger v. Reynolds, 52 Ind. 225. 96 Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Vyvyan v. Vyvyan, 30 Beav. 65. (834) CHAPTER XIII. BILI^ OF CERTIORARI. i 793. In general. The object of a bill of certiorari is to remove a suit in equity, pending in some inferior court, into a court of chancery, or into some other proper superior court of equity, if any such there be, on account of some alleged incompetency of the in- ferior court, or some injustice in its proceedings. This species of bill, having this sole object, merely prays the writ of cer- tiorari. It states the proceedings in the inferior court, the •cause of its incompetency, by suggesting that the cause is out of its jurisdiction, or that the witnesses or the defendants live ■out of the jurisdiction, or that the defendants are not able, by age or infirmity, or the distance of the place, to follow the suit "there, or that, for some other cause, equal justice is not likely to be done them, and prays a writ of certiorari to certify and re- move the cause and the record to the superior court. It does not pray that the defendant may answer or even appear to the hill, and consequently prays no writ of subpoena, although a writ of subpoena must be sued out and served. When the cause is removed from the inferior court, the bill exhibited in that court is considered as an original bill in the court of chancery, or other superior court, and is proceeded upon as such. The proceedings, however, on it, are peculiar, and belong rather to the practice than the pleadings of a court of equity.^ Bills of 1 Story, Eq. PL § 298; Mitford, Eq. PI. 51; Cooper, Bq. PI. 50, 51; 1 Montagu, Eq. PI. 244; Barton, Suit in Eq. 51, 52; Portingdon v. Tar- laock, 1 Vern. 177. (835) §794 EQUITY PLEADING AND PRACTICE. [Ch. 42 this nature are rarely, if ever, used in the United States, and no reported cases indicate that they have been resorted to.^ § 794. Form of bill of certiorari. [Title of court, and address to the court.] Humbly complaining, slioweth, etc., your orator, A. B., etc., that whereas, etc. [setting forth the cause prosecuted in the lord mayor's court]. All which said premises your orator hopes he shall make fully appear by several witnesses, if need be, which he could not produce within the said city of L. before the said lord mayor and his brethren, the aldermen of the city of L. ; your orator showing unto your lordship that one E. F., a material witness for your said orator concerning the said premises at the time of the cause, etc., then lived and resided, and still liveth and resideth, at W., without the jurisdiction of the said lord mayor and his brethren, the aldermen of the city of L., whereby your orator had no remedy to compel the said E. F. to be examined or to give his testimony in the said cause in the city of L. concerning the premises. In tender consideration whereof, and forasmuch as, for want of jurisdiction in the said lord mayor and his brethren, the alder- men of the said city of L., over your orator's witnesses, your orator is remediless there, and it being agreeable with the rules and practice of this honorable court, upon such necessities and defects of jurisdiction in inferior courts, for this high and honorable court to remove the records and proceedings thereof into this honorable court, and to pro- ceed in this court upon the same, and all other matters and things in- cident thereto, or whereupon your orator seeks relief: May it please your lordship, therefore, not only to grant unto your orator a writ of certiorari to be directed to the said lord mayor of the city of L. and his brethren, the aldermen of the said city, thereby com- manding them, upon the receipt of the said writ, to certify and remove the records of the said cause, etc., and all proceedings thereupon into this honorable court; but also to grant unto your orator his majesty's most gracious writ of subpoena, to be directed to the said C. D., etc., thereby commanding them and every of them, at a certain day, and under a certain pain therein to be limited, personally to be and appear before your lordship in the high and honorable court of chancery, then and there upon their corporal oaths fully and directly to answer all and singular the premises, and to set forth and discover whether, etc., and whether it was not declared and agreed, etc., and whether the said C. D., etc., be not indebted unto your said orator, and in what sum, and 2 Story, Eq. PI. § 298. It is said by Mr. Foster in his work on Fed- eral Practice, which is high authority on all questions pertaining to practice in the federal courts, that in no reported case has such a bill been filed in a federal court. Foster, Fed. Pr. § 90. See supra, § 65. (836) Ch. 42] BILL OF CERTIORARL g 794 that your said orator may be righted and relieved In all and singular the premises, according to equity and good conscience. And that the said defendants may stand to, observe, and perform such order and decree therein as your lordship in your great wisdom shall think just and meet. A. B., G. H., Complainant. Solicitor for Complainant.s 3 This form is taken from Van Heythuysen, Eq. Drafts. 312. Al- though this form contains a prayer for subpoena, and also for an an- swer, such practice is not in accordance with the proper practice as laid down by the authorities. Story, Eq. PI. § 298, note. For another form of bill, see Willis, PI. in Eq. 309 (L. L. vol. xxv.). For form of writ of certiorari, see Hinde, Ch. Pr. 581. (837) CHAPTER XLIII. BILLS TO PERPETUATE TESTIMONY. i 795. In general. A bill to perpetuate testimony is one filed in order to pro^ cure the testimony of witnesses to be taken with reference to some matter not at the time in litigation, but which is liable to become so.-' The sole object of such a bill is to assist other courts, and to preserve evidence to prevent future litigation.* When a person interested in any property is in danger of losing the evidence of his right before it can be judicially investigated, he may file a bill against the persons who will be benefited by the loss, to examine the witnesses and perpetuate their testi- mony.* In order to maintain such a bill, the complainant must be interested, and an expectancy, however strong, is not a suf- ficient interest. Thus, neither the next of kin nor heir at law of a lunatic, though that lunatic be intestate and morally and physically in the most hopeless state, can maintain a bill for the perpetuation of testimony, for the law never deems a re- covery impossible during life.* Any actual interest, however 1 Bouvier, Law Diet. tit. "Bill to Perpetuate Testimony"; Ellice v. Roupell, 32 Beav. 308. For history of this species of bill, see Booker T. Booker, 20 Ga. 777. 2 Story,' Eq. PI. § 300; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353; Baxter v. Farmer, 42 N. C. 239. See Kellogg v. Warmouth, Fed. Cas. No. 7,667. s 2 Barbour, Ch. Pr. 136; Graham v. Bank, 3 Lane. Law Rev. (Pa.) 68. 4 Story, Eq. PI. § 301; 2 Barbour, Ch. Pr. 137; Dursley v. Benteley, 6 Ves. 260; Sackvill v. Ayleworth, 1 Vern. 105; Smith v. Attorney General, cited In 6 Ves. 260; Hall v. Stout, 4 Del. Ch. 269; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353. See Richter v. Jerome, 25 Fed. 679. (838) [Ch. 43 PERPETUATING TESTIMONY. § 795 small in value, whetlier it be absolute or contingent, or however remote in enjoyment, is sufficient.'' Persons having mere ex- pectancies, having entered into any contract with respect to them, may maintain a bill to perpetuate the evidence.® Any person having an interest in the remainder or reversion of an estate for life may file such a bill.'^ The defendant in a bill to perpetuate testimony must be or claim to be interested.* Some ground of nBcessity for perpetuating the testimony must also be shown, as that the party is in danger of losing his wit- nesses by siclgness, age, or death, or by departure from the state. It will not lie, however, where the necessity of the witness' going abroad is of the complainant's own creation.* A bill of this nature must be brought before the matter can be judicially investigated. Thus, it does not lie by a devisee against a pur- chaser without notice of the will, until after the will is estab- lished, where there is no impediment to an immediate investi- gation at law, or by a tenant in tail out of possession until he has recovered possession by ejectment, where there is no im- pediment to an investigation at law. A deed being lost or in the hands of a defendant is not such an impediment to a trial at law as to support the bill. The bill does not lie before trial, if there is no impediment to an action at law, and no fear of 5 2 Barbour, Ch. Pr. 137; Allan v. Allan, 15 Ves. 136. 8 2 Barbour, Ch. Pr. 137. 7 2 Barbour, Ch. Pr. 137; Cooper, Eq. PI. 53; Saokvill v. Ayleworth, 1 Vern. 105. The court will not protect every interest by perpetuating evidence, as, for instance, if it be such as may be immediately barred by the person against whom the bill is brought. 2 Barbour, Ch. Pr. 137; Dursley v. Berkeley, 6 Ves. 261. The bill will not lie for trivial things, as rights of common, or water courses, or at least not until after a recovery at law. 2 Barbour, Ch. Pr. 137; Sackvill v. Ayleworth, 1 Vern. 105. s Story, Eq. PI. § 302; 2 Barbour, Ch. Pr. 138; Teale v. Teale, 1 Sim. & S. 385; Dursley v. Berkeley, 6 Ves. 260; Jerome v. Jerome, 5 Conn. 352. 9 Story, Eq. PI. § 303; 2 Barbour, Ch. Pr. 138; North v. Gray, 1 Dick- ens, 14; Cox V. CoUey, 1 Dickens, 55; East India Co. v. Naish, Bunb. 320; Dorset v. Girdler, Finch, Prec. Ch. 531. (839) §795 EQUITY PLEADING AND PRACTICE. [Ch. 43 tlie death of a witness before trial.^" The bill must show either that the facts to which the testimony of the witnesses proposed to be examined relates cannot be immediately investigated in a court of law, or, if they can be so investigated, that the sole right of action belongs exclusively to the other party, or that the other party has interposed some impediment, as an injunc- tion, to an immediate trial of the right in a court of law.-'^ If an important fact is in the knowledge of only one or two wit- nesses, a bill of this nature lies.^^ Where a person's right of fishery or of common is actually disturbed, so that an action may be maintained, a bill of this nature does not lie until after the trial.^^ A person in possession who has been threatened, but not so disturbed as to enable him to support an action, may maintain the bill before action commenced.^* It is said to be not necessary for the complainant to be in possession in order to bring such bill.^^ A bill lies by a devisee where lands are devised by will, and there is no occasion or opportunity to es- tablish the will at law.^® It will also lie before action brought, if the defendant prevents the bringing of the action, and before a trial at law, where the defendant has obtained an injunction against the plaintiff's proceeding in ejectment, and the plain- tiff has a verdict for another part of the same estate, upon the same titl^.-''' A person may bring such a bill in many cases wfhere he cannot bring a bill for relief without waiving the pen- alty or offering to do equity.^ ^ iti 2 Barbour, Ch. Pr. 138, 139. 11 Story, Bq. PI. § 303; Mitford, Bqi. PI. 52; 2 Barbour, Ch. Pr. 138; Angell V. Angell, 1 Sim. & S. 83; Pettebone v. Bverhart, 4 Kulp (Pa.) 353; Booker v. Booker, 20 Ga. 777; Ne-w York & Baltimore Coffee Pol- ishing Co. V. New York Coffee Polishing Co., 9 Fed. 578. 12 2 Barbour, Ch. Pr. 139; Mitford, Eq. PI. 150; Welford, Eg. PI. 142; Moodalay v. Morton, 1 Brown Ch. 469. 13 2 Barbour, Ch. Pr. 139. 14 2 Barbour, Ch. Pr. 139; Dorset v. Girder, Pinch, Prec. Ch. 531. 15 Booker v. Booker, 20 Ga. 777. 16 2 Barbour, Ch. Pr. 139. IT 2 Barbour, Ch. Pr. 139; Cox v. Colley, 1 Dickens, 55. 18 Suffolk V. Green, 1 Atk. 450. (840) Ch. 43] 'PERPETUATING TESTIMONY. § 797 § 796. Such bills not favored by the courts. Such, bills seem to be received with caution, if not regarded with jealousy, by the courts,-^* though an eminent authority has said that, as the object of the jurisdiction is to assist other courts, and, by preserving evidence, to prevent future litigation, there are few cases in which a court will decline exercising it, and therefore a demurrer thereto will seldom lie.^° § 797. Frame of bill. The matter touching which the complainant is desirous to acquire evidence should be particularly stated in the bill, so that the interrogatories on both sides may be directed to the true merits of the controversy. Thus, where the bill seeks to perpetuate the testimony of witnesses to a will, it is proper in the bill to set forth the whole will in haec verha.^^ It is nec- essary to state on the face of the bill all the material facts which are necessary to maintain the jurisdiction.^^ It must show the matter touching which the complainant is desirous to give evidence, that the complainant has an interest in the subject, and the nature of that interest, and the interest of the defend- ant to contest the complainant's title.^^ The title of the com- plainant ought to be plainly, yet succinctly, stated, and that with all necessary and convenient certainty as to the material facts, 19 2 Barbour, Ch. Pr. 139; Cann v. Cann, 1 P. Wms. 568; Booker v. Booker, 20 Ga. 777. 20 Mitford, Eq. PL 149. 212 Barbour, Ch. Pr. 140; Story, Eq. PI. § 305; Gressett v. Mytton, 3 Brown Ch. 481; Gell v. Hayward, 1 Vern. 312; Pettebone v. Lehigh Val- ley Coal Co., 4 Kulp (Pa.) 349. 22 Story, Eq. PI. § 300; Mason v. Goodbume, Pinch, 391; Knight v. Knight, 4 Madd. 1; Booker v. Booker, 20 Ga. 777. 23 2 Barbour, Ch. Pr. 140; Jerome v. Jerome, 5 Conn. 352; Story, Eq. PI. § 301; Pettebone v. Lehigh Valley Coal Co., 4 Kulp (Pa.) 349. Where the bill alleges that certain notes in respondent's possession have been forged, and prays for an order to perpetuate the testimony of the forger (in prison, and about to be sentenced), it is not neces- sary that it should set forth the notes in haec verba. Graham v. Bank, 3 Lane. Law Rev. 68. (841) § 797 EQUITY PLEADING AND PRACTICE. [Ch. 4J- and as to the time, place, manner, and other incidents,^* but it is amendable if the facts are not stated with sufficient clear- ness.^^ Some ground of necessity for perpetuating the evi- dence must be shown. Without such allegations, the biU will be demurrable. ^^ The bill need not offer to pay what is due on a usurious contract, or to waive penalties.^^ The bill should state the names of the witnesses whose testimony is desired.^® It should pray leave to examine witnesses touching the matters stated, to the end that their testimony may be preserved and perpetuated. It should also pray proper process of subpoena, but it should not pray that the defendant may abide such order and decree as the court should think proper to make, for that will turn it into a bill for relief, which is inconsistent with the nature of a bill to perpetuate testimony, and render the bill demurrable and liable to be dismissed for this cause.^* Care should be taken not to mix up in the bill other matters vhich will require very different decretal orders as to the publication of the testimony; otherwise it will be demurrable.*" Thus, a prayer for relief will render a bill multifarious.*^ The court 2*2 Barbour, Ch. Pr. 140; Jerome v. Jerome, 5 Conn. 352; Smith v. Turner, 39 N. C. 433, 47 Am. Dec. 353. 25 Booker v. Booker, 20 Ga. 777. 26 2 Barbour, Ch. Pr. 141; Story, Eq. PI. § 303; Cooper, Eq. PI. 53; Angell V. Angell, 1 Sim. & S. 83; Dursley v. Berkeley, 6 Ves. 260; Dew v. Clarke, 1 Sim. & S. 108; Parry v. Rogers, 1 Vern. 441; Booker v. Booker, 20 Ga. 777. 2T 2 Barbour, Ch. Pr. 141; Suffolk v. Green, 1 Atk. 450. 28 Smith V. Turner, 39 N. C. 433, 47 Am. Dec. 353. Contra, Pettebone v. Lehigh Valley Coal Co., 4 Kulp (Pa.) 349. 29 Story, Eq. PI. § 306; 2 Barbour, Ch. Pr. 142; Cooper, Eq. PI. 52; Jerome v. Jerome, 5 Conn. 352; Rose v. Ganliel, 3 Atk. 439; Vaughan v. Fitzgerald, 1 Schoales & L. 316. 30 2 Barbour, Ch. Pr. 142; Story, Eq. PI. § 306; Dew v. Clarke, 1 Sim. & S. 108. 31 Aetna Life Ins. Co. v. Smith, 73 Fed. 318; Jerome v. Jerome, 5 Conn. 352; Story, Eq. PI. § 306; Dalton v. Thomson, 1 Dickens, 97. A bill by an insurance company to cancel a policy of insurance on the ground of fraud, and asking for the perpetuation of testimony, is multifarious. Aetna Life Ins. Co. v. Smith, 73 Fed. 318. See, to the contrary. Commercial Mut. Ins. Co. v. McLoon, 14 Allen (Mass.) 351. (842) Ch. 43] PERPETUATING TESTIMONY. § 798 will frequently allow the complainant to amend his bill by striking out the relief, even after the testimony has been taken under it.** When the bill is framed on the ground that the testimony of a witness may be lost by his death or departure from the state before the case can be investigated in a court of law, it is proper to annex an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost. This practice is adopted in other cases of bills which have a tendency to change the jurisdiction of the subject- matter from a court of law to a court of equity.** When the bill is sworn to, however, it will be sufficient to state the cir- cumstances in the bill, and no other affidavit will be necessary.** i 798. Form of bill to perpetuate testimony. [Title of court, and address to the court.] Humbly complaining, shows unto your honors your orator, G. H., of, etc., brother of the half blood and devisee named in the last will and testament of T. R., of, etc., deceased ; that the said T. R, was in his life- time, and at the time of his death, seised or entitled, to him and his heirs, of or to divers freehold estates situate in the several places here- A bill is not multifarious in asking to have testimony in regard to a title perpetuated, and a cloud upon said title removed. Cleland v. Casgrain, 92 Mich. 139, 52 N. W. 460. The court will entertain a bill for discovery, and to perpetuate evidence in aid of the defense to an action at law on a contract. Jerome v. Jerome, 5 Conn. 352. A bill setting forth all the facts necessary to entitle a party to an order to perpetuate the testimony of a witness, but praying that the testimony may be taken de bene esse, does not change its distinctive character as a bill to perpetuate testimony. Booker v. Booker, 20 Ga. 777. 32 Vaughan v. Fitzgerald, 1 Schoales & L. 316. See, however, EUice V. Roupell, 32 Beav. 308, holding that a bill to perpetuate testimony cannot, by amendment, be converted into a bill of discovery. 33 Story, Eq. PI. § 304; Mitford, Eq. PI. 52, 53; 2 Barbour, Oh. Pr. 141; Suffolk V. Green, 1 Atk. 450; Philips v. Carew, 1 P. Wms. 117; Angell V. Angell. 1 Sim. & S. 83; Shirley v. Ferrers, 3 P. Wms. 77. 34 2 Barbour, Ch. Pr. 141. It is said, however, that a bill to per- petuate testimony need not be verified by the complainant's affidavit. Hickman v. Hickman, 1 Del. Ch. 133. See, also, Jerome v. Jerome, 5 Conn. 356. For extracts from bill held to be good on demurrer, see New York & Baltimore Coffee Polishing Co. v. New York Coffee Polish- ing Co., 9 Fed. 579. (843) §798 EQUITY PLEADING AND PRACTICE. [Ch. 43 inafter mentioned, and divers other places, of considerable yearly value in the whole, and being seised or entitled, and being of sound and dis- posing mind, memory, and understanding, he made his last will and testament in writing, bearing date, etc., which was duly executed by him in the presence of and attested by three credible persons, whose names are [here insert the names of the subscribing witnesses], and which will, with the attestation thereof, is in the words following; that is to say [stating the will verhatim']. And your orator further shows that the said T. R. afterwards, and on or about , departed this life without revoking or altering his said will, or any part thereof, where- upon your orator, by virtue of the said will, became entitled in fee simple to all his said freehold estates, subject, as to such part thereof as aforesaid, to the payment of so much of the funeral expenses, debts, and legacies of the said T. R. as his personal estate may fall short to pay; and your orator accordingly, soon after the death of the said T. R., entered upon and took possession of all the said estates, and is now in possession and receipt of the rents and profits thereof, and in the pos- session and enjoyment thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly, without any interruption from any person whomsoever. But now so it is, may it please your honors, that T. H., of, etc., who claims to be cousin and heir at law of the said T. R., alleging that he is the only or eldest son of T. H. and M., his wife, both deceased [which said M. H., as is also alleged, was the only child of S. R., who, as is like- wise alleged, was the only brother of the father of T. R., who left any issue], combining and confederating with divers persons unknown to your orator, pretends that the said T. R. did not make such last will and testament in writing as aforesaid, or that he was not of sound and disposing mind and memory at the making thereof, or that the same was not executed in such manner as by law is required for devising real estates; and therefore he insists that your orator hath not any right or title to the real estates late of the said T. R., or any part thereof, but that, on his death, the same descended unto him, the said T. H., as his heir at law. Whereas, your orator charges the contrary of such pretenses to be true; but nevertheless the said T. H. refuses to contest the validity of the said will during the lifetime of the sub- scribing witnesses thereto, and he threatens that he will hereafter dis- pute the validity of the said will when all the subscribing witnesses thereto are dead, whereby your orator and his heirs and assigns will be deprived of the benefit of their testimony. All which pretenses of the said confederates are contrary to equity and good conscience, and tend to injure and oppress your orator in the premises. In considera- tion whereof, and forasmuch as your orator cannot perpetuate the testi- mony of the subscribing witnesses to the said will without the assist- ance of a court of equity, to the end, therefore, that the said T. H. may show, if he can, why your orator should not have the testimony of the said witnesses perpetuated, and that your orator may be at lib- (844) Ch. 43] PERPETUATING TESTIMONY. § gOO erty to examine his witnesses witli respect to the execution and attesta- tion of the said will, and sanity of mind of the said T. R. at the making of the same, so that their testimony may be perpetuated and preserved, may it please, etc. [Pray subpoena against T. H.] G. H., B. P., Solicitor for Complainant. Complainant. [Add verification.] 35 § 799. Process and appearance. The complamant compels the appearance and answer of the defendant, and the suit is proceeded with, in the usual way, by filing a replication and issuing a commission or subpoena for the examination of witnesses.^® § 800. Defense to bill to perpetuate testimony. The defendant may allege, by way of defense, any facts show- ing that there is no necessity of perpetuating the testimony.^^ It has been said that a demurrer will seldom lie to a bill of this nature. If it clearly appears that jurisdiction does not arise upon the case made by the bill, as where specific allega- tions of the facts upon which the complainant claims the aid of the court are not made by the bill, or if the bill should pray relief, a demurrer will hold ; but it has been held that, where the relief and discovery prayed by the bill are both demurra- ble, the defendant could not demur to so much of the bill as sought to perpetuate testimonj'.^* Whether or not a defense to a bill of this nature may be maintained by a plea is doubtful. An eminent authority lays down, the rule that a plea is proper, and that, to a bill to prove a will and perpetuate testimony, the defendant may plead that he is a purchaser without notice of the will, and insist that, if the complainant has a title, he may 35 This form is taken from Curtis, Eq. Prac. 107, and Van Heythuysen, Eq. Drafts (1st Am. Ed.) 317. 36 2 Barbour, Ch. Pr. 143. See Mason v. Goodburne, Pinch, 391. 37 BUice V. Roupell, 32 Beav. 308; May v. Armstrong, 3 J. J. Marsh. (Ky.) 260. 38 2 Barbour, Ch. Pr. 142; Thorpe v. Macauley, 5 Madd. 218; Shackell V. Macaulay, 2 Sim. & S. 79; Angell v. Angell, 1 Sim. & S. 83. (845) §801 EQUITY PLEADING AND PRACTICE. [Ch. 43 immediately proceed at law.^® On the other hand, an equally eminent authority has declared that no defense can be taken by way of plea to such a bill.*" An answer will lie to a bill to perpetuate testimony f^ but the defendant can only be required to admit a sufficient right on the part of the complainant to examine such witnesses as he may think fit on the various mat- ters and issues stated in the bill.*^ The defendant cannot, by making his answer a cross bill, compel the complainant to enter into an investigation as to who has the paramount right.*^ § 801. Proceedings on bill. A bill to perpetuate testimony may be dismissed for want of prosecution at any time before replication and examination. After that time, the motion would be irregular, the proper ap- plication then being that the complainant may proceed to per- fect the examination of the witnesses within a given time, or that he pay the defendant his costs.** Such a bill is never brought to a hearing. If improperly brought to a hearing, the bill will be dismissed, but the depositions taken may still be used as evidence, even though the bill is dismissed.*^ If no sufficient cause is shown why the complainant is not entitled to the taking of the evidence desired, the court will grant leave to the complainant to sue out a commission to examine his wit- nesses.*® When such an order is made, it is the right of every 3S2 Barbour, Ch. Pr. 142; BecWnall v. Arnold, 1 Vern. 354; Beames, Pleas In Eq. 241. 40 Langdell, Eq. PI. 237. 41 2 Barbour, Ch. Pr. 142. For instance of answer to such a bill, see Pettebone v. Bverhart, 4 Kulp (Pa.) 353. 42 Ellice V. Roupell, 32 Beav. 308. 43 May V. Armstrong, 3 J. J. Marsh. (Ky.) 260. 44 2 Barbour, Ch. Pr. 143; Wright v. Tatham, 2 Sim. 459; Barham v. Longman, 2 Sim. 460. A defendant to a bill to perpetuate testimony of witnesses may apply to dismiss the bill for want of prosecution, as well as in the case of any other bill. Anonymous, 2 Ves. Sr. 497. 45 2 Barbour, Ch. Pr. 143; Anonymous, 2 Ves. Sr. 497; Anonymous, Amb. 237; Hall v. Hoddesdon, 2 P. Wms. 162; Ellice v. Roupell, 32 Beav. 308. 46 Coveny v. Athill, 1 Dickens, 355; Lancaster v. Lancaster, 6 Sim. 439. (846) ■Ch. 43] PERPETUATING TESTIMONY. § 801 party to the cause to examine witnesses, and the privilege of cross-examination is allowed as in ordinary cases.* ^ After the examination of the witnesses, the suit is ended.*® The defend- ant is entitled to apply by a motion or petition, of course, for his ■costs, immediately after the witnesses are examined, upon the .simple allegation that he did not examine any witnesses.** But where the bill was a bill of discovery, as well as a bill to perpetuate testimony, the defendant was allowed costs, so far .as it was a suit for discovery, although he had examined vdt- nesses in chief.^" After the testimony is taken, it is filed in the clerk's office for use when the occasion therefor arises. ^^ By the English practice, the court would not permit the depositions taken under a bill of this nature to be published, except in support of the suit or cause, and then only after the •death of the witness, or in case of his being sick or incapable -of traveling, or being prevented by accident from attending to be examined.^^ The publication of depositions for the pur- pose of perfecting a title to an estate would not be allowed, even where the witnesses were dead.^* To obtain the order for pub- lication, notice supported by affidavit setting out the neees- rsity therefor was given. Upon such application, the order was drawn up accordingly.^* If the depositions of any part less than the whole of the witnesses are to be published, the order will direct that the depositions of the other witnesses be not pub- 47Slieward v. Steward, 2 Ves. & B. 116; 2 Daniell, Ch. PI. & Pr. (4th Am. Ed.) 1573, 1574; Skrine v. Powell, 15 Sim. 81; Abergavenny v. Powell, 1 Mer. 434. *8 Morrison v. Arnold, 19 Ves. 670; Vaughan v. Fitzgerald, 1 Schoales & L. 316. 49 2 Barbour, Ch. Pr. 144; Foulds v. Midgley, 1 Ves. & B. 138. See, also, Bemey v. Eyre, 3 Atk. 387; Mackrell v. Hunt, 2 Madd. 34, note. 50 Skrine v. Powell, 15 Sim. 81. 51 2 Daniell, Cb. PI. & Pr. (4tb Ed.) 1574. 52 2 Barbour, Ch. Pr. 143; Morrison v. Arnold, 19 Ves. 670; Barnsdale V. Lowe, 2 Russ. & M. 142. 03 2 Barbour, Ch. Pr. 143; Teale v. Teale, 1 Sim, & S. 385. 54 2 Barbour, Ch. Pr. 143, 144. (847) § 801 EQUITY PLEADING AND PRACTICE. [Ch. 43 lished.^^ Bills to perpetuate testimony are seldom resorted to at the present day, for usually the statutes give a cheaper and more expeditious means of accomplishing the same object. S5 2 Barbour, Ch. Pr. 144. (848) CHAPTER XLIV. BILLS DE BENE ESSE. § 802. Definition and nature. The object of a bill to take testimony de bene esse is to take tbe testimony of witnesses for a trial at law in cases where the testimony may otherwise be lost, as where the witnesses are aged or infirm, or are about to depart from the state. So, if the witness proposed to be examined is the only witness to the mat- ter, on account of the general uncertainty of human life, such a bill will lie, notwithstanding he is not either aged or infirm. In general, a witness is not treated as being aged, in the sense of the rule, unless he is seventy years of age, but if he is infirm or in ill health to an extent likely to destroy his life, or to prevent his attendance at the trial, his testimony may be taken at any age.-^ If a witness is going out of the jurisdiction of the court, although only into a state or country under the same 1 Story, Bq. PL § 308; 2 Barbour, Ch. Pr. 145; Cooper, Eq. PI. 57; Fitzhugh V. Lee, Amb. 65; Shelley v. , 13 Ves. 56; Rowe v. , 13 Ves. 261; Shirley v. Ferrers, 3 P. Wms. 77; Pearson v. Ward, 2 Dickens, 648; Philips v. Carew, 1 P. Wms. 117. See supra, § 658. Whether advanced pregnancy and imminent delivery are a cause for an examination of a witness de bene esse is not settled. It is said that, if they are, it should be shown by affidavits of competent persons that the delivery will probably happen about the time fixed for the trial. Abraham v. Newton, 8 Bing. 274. See, however. Barton v. Morphes, 13 N. C. 520; Clark v. Dibble, 16 Wend. (N. Y.) 601. Where the af- fidavit alleges that the witness is subject to violent attacks of gout, and under apprehension of dying therefrom, and that he is a material witness, even though his age be not stated, where his testimony was required to prove the draft of a bond which he had prepared, but which was lost, an order for such examination was made. Jepson v. Greenaway, 2 Fowler, Exch. Pr. 103. Where one of two surviving witnesses to a will is in prison, charged with a capital felony, but (849) Equity. — 54. §802 EQUITY PLEADING AND PRACTICE. [Ch. 44 general sovereignty, his testimony may also be taken, as, for example, if he is going from England to Scotland, or, in the United States, from one state to another.^ A bill to take tes- timony de bene esse will not lie in criminal cases.* While such a bill bears a close analogy to, and is often confounded with, bills to perpetuate testimony, it stands upon distinct con- siderations. Bills to perpetuate testimony can be maintained only when no present suit can be brought at law by the party seeking the aid of the court to try his right. Bills to take tes- timony de bene esse, on the other hand, are sustainable only in aid of a suit already depending, and may be brought by a per- son who is in possession or out of possession, and whether he is plaintiff or defendant in the action at law.* Bills of this na- ture are but rarely filed in jurisdictions where the chancery practice obtains, as the testimony of witnesses may usually be taken de bene esse in a much more cheap and simple manner under and by virtue of the statutory provisions.^ In framing the bill, care should be taken to allege all the material facts upon which the right to maintain it depends. There should also be an affidavit 'annexed to the bill of the circumstances by which the evidence intended to be perpetuated is in danger of being lost. This affidavit should be positive as to the material facts.® The affidavit should also state the place of residence of the witnesses, and give a description of the witnesses to be neither aged nor ill, an application for a commission to examine him de bene esse is properly refused. Anonymous, 19 Ves. 321. See Rich- ter V. Jerome, 25 Fed. 679. 2 2 Barbour, Ch. Pr. 145; Story, Eq. PI. § 308; Botts v. Verelst, 2 Dickens, 454. 3 People V. Restell, 3 Hill (N. Y.) 294; Ex parte Harkins, 6 Ala. 63. *2 Barbour, Ch. Pr. 144; Story, Eq. PI. § 307; Angell v. Angell, 1 Sim. & S. 83; Hall v. Stout, 4 Del. Ch. 269. 5 Pomeroy, Ea. Jur. § 210; Richter v. Jerome, 25 Fed. 679. An In- stance of the use of a bill of this nature will be found in Richter v. Jerome, 25 Fed. 679. 8 Story, Eq. PI. § 309; 2 Barbour, Ch. Pr. 145; Rowe v. , 13 Ves. 261; Angell v. Angell, 1 Sim. & S. 83; Philips v. Carew, 1 P. Wms. 117; Richter v. Jerome, 25 Fed. 679. (8.50) Ch. 44] BILLS DE BENE ESSE. § 803 examined. '^ The adverse party may show cause against the examination prayed for, by casting doubt upon the good faith of the application.® Thus, where it appears that an applica- tion has been delayed until a short time before the departure of the witnesses, with the intention of preventing their cross- examination, the application will be dismissed.^ The power to entertain bills de bene esse is said to be inherent in courts of equity.^** Depositions taken de bene esse are valid only in the cause in which they are taken, and against those who are parties to it, and claiming through some or one of those whose interest has accrued since the bill was filed.-^^ Save as hereinbefore indicated, the general rules stated in regard to bills to per- petuate testimony are, for the most part, applicable to bills to take testimony de bene esse}? § 803. Form of bill to take testimony de bene esse. [Title of court, and address to the court.] Humbly complaining, shows unto your honors A. B., of , that an action at law is now pending in the court of , wherein your orator is plaintiff, and C. D., of ■ , is defendant [or the reverse], touching and concerning [here describe the cause of action], which has not yet been committed to a jury; and your orator further shows that one B. F., of , of the age of seventy years or upwards [or, without stating the age, a person of infirm health, or laboring under a certain disease, or who is about to depart out of the jurisdiction of the said court, or who is the sole witness to the fact of ], so that his testimony is in danger of being lost to your orator at the said trial by reason of death [or absence], is a material and important witness for your orator, inasmuch as the said B. F. is acquainted with the fact [here state the witness' expected evidence, or. Inasmuch as the said E. F. is the sole person who has knowledge of the fact of ], which fact is material and necessary for your orator to prove 7 1 Barbour, Ch. Pr. 274; O'Farrell v. O'Parrell, 2 Moll. 364. 8 Adams v. Corfield, 28 Law J. Exch. 31. 9 Plrie V. Iron, 8 Bing. 143. 10 Macauley v. Shackell, 1 Bligh (N. S.) 119. 11 2 Barbour, Ch. Pr. 145; Banbury, Peerage, 1 Mont. Dig. 274. 12 2 Barbour, Ch. Pr. 145 ; Story, Eq. PI. § 310. For method of taking evidence de bene esse in federal courts, see United States Equity Rule 67; BischofEscheim v. Baltzer, 10 Fed. 1; Richter v. Union Trust Co., 115 U. S. 55; Foster, Fed. Pr. § 286. (851) §803 EQUITY PLEADING AND PRACTICE. [Ch. 44 on the trial of the said action at law. In consideration whereof, and forasmucli as your orator cannot be secure of having the testimony of the said witness at the trial of the said action without the aid of a court of equity in causing the same to be taken de bene esse, and that your orator may be at liberty to have the same so taken under a com- mission or commissions issuing out of this honorable court: May it please your honors to grant unto your orator a writ of subpoena to be directed to the said C. D., thereby commanding him, at a certain day, and under pain to be therein limited, personally to be and appear be- fore your honors in this honorable court, and then and there full, true, direct, and perfect answer make, but not under oath, an answer under oath being hereby waived, to all and singular the premises, and to show cause, if he can, why your orator should not have the testimony of the said witness taken de bene esse. A. B., B. F., Complainant. Solicitor for Complainant. [Add necessary affidavit.] 13 13 The prayer of this bill should never be for relief. It should be accompanied by an affidavit of the circumstances under which the evi- dence is in danger of being lost. This form is taken from Curtis, Bq. Free. 109. For form of bill used, and decree granting commission, see Richter v. Jerome, 25 Fed. 679. See 3 Enc. Forms, 406-414. (852) CHAPTEK XLV. BILLS OF DISCOVERY. § 804. Definition and nature. The jurisdiction of courts of equity in the enforcement of civil rights derived much of its utility from the power of the great seal to compel the defendant in a suit to discover and set forth, upon oath, every fact and circumstance within his knowl- edge, information, or belief material to the complainant's case. This right to enforce "discovery," as it was called, did not exi^t in courts of common law, where the plaintiff must make out his case by the evidence of the witnesses or the admissions of the defendant.^ In jurisdictions where, by statute, parties in inter- est can be compelled to testify, bills of discovery are of little use, and have been said to be obsolete.^ JSTotwithstanding statu- tory changes, it is held in most jurisdictions that a bill for dis- covery may be filed in a proper case.^ Every bill is in reality 1 Adams, Bq. 1. 2 United States v. McLaughlin, 24 Fed. 823; Ex parte Boyd, 105 U. S. 657. 3 Adams, Eq. 1; Cannon v. McNab, 48 Ala. 99; Bryant v. Leyland, 6 Fed. 125; Grimes v. Hilliary, 38 111. App. 246; Semple v. Murphy, 8 B. Mon. (Ky.) 271; Union Passenger Ry. Co. v. City of Baltimore, 71 Md. 238, 17 Atl. 933; McCreery v. Cobb, 93 Mich. 463, 53 N. W. 613; Millsaps V. Pfeiffer, 44 Miss. 805; Shotwell's Adm'x v. Smith, 20 N. J. Eq. 79; El- liston V. Hughes, 1 Head (Tenn.) 225; Russell v. Dickeschied, 24 W. Va. 61; Kelley v. Boettcher, 49 U. S. App. 620, 85 Fed. 55; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26; Miller V. United States Casualty Co., 61 N. T. Eq. 110, 47 Atl. 509; Indianapolis Gas Co. V. City of Indianapolis, 90 Fed. 196. In some jurisdictions, bills of discovery are held to be abrogated by statutory provisions giving a party the right to call his adversary as a -witness, and to compel the production of books and documents. Rindskopf v. Platto, 29 Fed. 130; Riopelle v. Doellner, 26 Mich. 102. See Fltzhugh v. Everingham, 2 Edw. Ch. (N. Y.) 605. (853) § 804 EQUITY PLEADING AND PRACTICE. [Ch. 45 a bill of discovery, but the kind of bill -usually distinguished by that title is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds or writings or other things in his custody or power, and seeking no relief in consequence of the discovery, though it may pray for a stay of proceedings at law until the discovery shall be made. It is commonly used in aid of the jurisdiction of some other court. Indeed, some allegation of a proceeding pending or intended seems indispensable. It is used to aid a jurisdiction which cannot compel evidence on oath.* It is doubtful whether a bill for discovery will lie in aid of a suit or defense to a suit pending in a foreign court.^ Mr. Justice Story said that courts of equity will not entertain a bill for a discovery to assist a suit in another court, if the latter is of itseK competent to grant the same relief, for in such a case the proper exercise of the jurisdiction should be left to the functionaries of the court where the suit is depending, and that neither will courts of equity entertain such bills in aid of a controversy pending before arbitrators, for they are not the regular tribunals authorized to *2 Barbour, Ch. Pr. 101; Story, Bq. PI. § 311; Buckner v. Ferguson, 44 Miss. 677; Brown v. Swann, 10 Pet. (U. S.) 497; Metier v. Metler's Adm'rs, 19 N. J. Eq. 457. "In Townsend v. Lawrence, 9 "Wend. (N. Y.) 458, * * * the court said: 'According to the principle and practice of the court of chancery, a bill called a "bill of discovery" may be filed for the discovery of facts in the knowledge of the ad- verse party, or of deeds or writings or other things in his custody or power, and is usually employed to enable the complainant to prosecute or defend an action. 1 Haddock, Ch. Pr. 160; [Montague v. Dudman] 2 Ves. Sr. 398. And if deeds, letters, or other writings are referred to in an answer, the same will, on the plaintiff's motion, be ordered to be left with an officer of the court for the inspection of the complainant or his counsel. 2 Haddock, Ch. Pr. 299; [Bettison v. Farringdon] 3 P. Wms. 364; LTaylor v. Milner] 11 Ves. 42; [Atkyns V. Wright] 14 Ves. 214.'" Arnold v. Pawtuxet Valley Water Co., 18 R. I. 189, 26 Atl. 55. 5 Story, Eq. PL § 311; 2 Barbour, Ch. Pr. 102. That it will not, see Bent V. Young, 9 Sim. 180. Contra, Mitchell v. Smith, 1 Paige (N. Y.) 287, citing Cooper, Eq. PI. 191; 1 Haddock, Ch. Pr. 191. See Dunn v. Coates, 1 Atk. 288. (854) Ch. 45] BILLS OF DISCOVERY. | SOS administer justice, and, being judges of the parties' own choice, they must submit to the inconvenience incidental thereto.® § 805. Distinction between bill of discovery and bill for discovery and relief. There is a distinction between a bill filed for discovery merely and a bill filed for discovery and relief. The former «2 Story, Eq. Jur. § 1495, citing Cooper, Eq. PL 192; Street v. Rig- by, 6 Ves. 821; Story, Eq. PL §§ 554, 555; Mitford, Bq. PL 186, 187. See Gelston v. Hioyt, 1 Johns. Ch. (N. Y.) 547, 548, where Chancellor Kent held that, if a bill seeks discovery in aid of the jurisdiction of a court at law, if the court of law can compel discovery, a court of equity will not interfere. But see Marsh v. Davison, 9 Paige (N. Y.) 580, wliere it appears that the doctrine is not correct as to mere bills of discovery, but at most applies only where the bill is for discov- ery and relief, the court saying: "It is not necessary, in a mere bill of discovery, for the complainant to aver that he cannot otherwise establish his defense at law; and the headnote to the contrary in the case of Leggett v. Postley, 2 Paige (N. Y.) 599, is not warranted by the opinion of the court in that respect. By referring to the case itself, it will be seen that the court made the distinction between a mere bill of discovery and a bill in which the complainant asks for relief in this court upon the ground that he has been compelled to come here for discovery. In the first case, to sustain a bill of dis- covery in aid of a defense at law, the complainant must show that the discovery sought is material to his defense at law; not that it is absolutely necessary. But where the complainant seeks to give jurisdiction to this court to grant relief, upon the ground that a dis- covery was necessary, and that this court, having gained jurisdiction of the cause for that purpose, will retain it for the purpose of doing complete justice between the parties, he must not only show that the discovery is material to his defense in the suit at law, but must also allege affirmatively that he cannot establish such defense at law with- out the aid of the discovery sought. And in such a case, it the bill does not show that the discovery is necessary, as well as material and convenient, the defendant may demur to the relief sought by such bill. Under the decision of our court of dernier ressort in the case of Laight V. Morgan, 1 Johns. Cas. (N. Y.) 429, and the subsequent de- cisions in the court of chancery here, the defendant must answer and make the discovery sought, although he demurs to the relief. A sim- ilar averment of the necessity of a discovery in aid of the defense at law must be made and sworn to where the complainant in a bill of discovery asks for an injunction to stay the defendant's proceed- ings there until he has answered the bill." That the statement in 2 (85.5) §805 EQUITY PLEADING AND PRACTICE. [Ch. 45 is ancillary to a trial at law or in equity. The latter, although a bill of discovery, withdraws the case from the legal forum, and brings it for a decision before a court of equity.'' A bill of dis- covery, properly so called, never prays any relief. "If a bill, therefore, which is maintainable in equity solely as a bill for dis- covery, should contain a prayer for relief also, it will, in Eng- land, be open to a demurrer to the whole bill, and the party will not be allowed to maintain his bill for the discovery only, for he is bound to shape his bill according to what he has a right to pray ; but the defendant may nevertheless, if he chooses, demur to the relief only, and answer as to the discovery sought, and if a bill of discovery is filed manifestly in aid of a defense at law, and a prayer for equitable relief is added, the defendant is not bound to give any discovery beyond what is incidental to that relief, for, by mixing up the right to a discovery in aid of a de- fense at law with the equitable relief, he would get the discovery designed to aid the defense, without paying the costs in ordinary story, Bq. Jur. § 1495, was applicable to bills for discovery and re- lief, is apparent from Story, Eq. PI. § 319, notes. See, also. Bell v. Pomeroy, 4 McLean, 57, Fed. Gas. No. 1,263, pointing out the distinc- tion in the two classes of cases. 7 Bell V. Pomeroy, 4 McLean, 57, Fed. Cas. No. 1,263. " 'A bill of discovery,' says Lord Hardwicke, 'lies here in aid of some proceeding in this court in order to deliver the party from the necessity of pro- curing evidence, or to aid the proceedings in some suit relative to a civil right in a court of common law.' Mr. Wigram says that the division of bills into bills of discovery and bills for relief suggests a distinction which, in principle, does not exist. Wigram, Disc. 5, 6. The only distinction between the two is that, in a bill for relief, the discovery and relief is sought by one and the same bill, whereas, in a bill for discovery merely, discovery only is sought in aid of some other proceeding at law or in equity by or against the plaintiff. The discovery, in either case, is for the purpose of enabling the party asking it to obtain evidence material to a case about to come on for trial. One of the rules laid down as to discovery is 'tbat the right of the plaintiff to the discovery is limited to a discovery of sucli material facts as relate to the plaintiff's case.' Wigram, Disc. 15. So that, unless the discovery sought is to be in aid of some proceeding for relief, either in the bill itself or in some other bill or suit at law, it will be denied." De Wolf v. De Wolf, 4 R. I. 450. (8.56) Ch. 45] BILLS OF DISCOVERY. § 805 cases allowed upon a mere bill of discovery."^ Whenever the jurisdiction of a court of equity is mainly founded on the right to a discovery, and the party goes on to seek relief, the bill must 8 Story, Bq. PI. § 312. See King v. Heming, 9 Sim. 59; Desborough V. Curlewis, 3 Younge & C. 175. Where a bill is for discovery and relief, there is a difference of opinion concerning the right of the defendant to demur to the discovery alone, and not to the relief. In England it is held that there could not be a demurrer to the discovery only, and not to the relief. Story, Eq. PI. § 312; Morgan v. Harris, 2 Brown Ch. 121; Currier v. Concord R. Corp., 48 N. H. 321. In cases where the bill shows good title to relief, but the defendant is not bound to make discovery for the reason that his answer may expose him to penalties, or tend to incriminate, it is said to be well settled in the American courts that he may demur to the discovery, or so much of it as he cannot make without so exposing himself, provided it Is apparent on the face of the bill that the discovery Will be attend- ed with that effect, and, if it does not so appear, he may protect him- self by plea. Currier v. Concord R. Corp., 48 N. H. 321. "If the dis- covery is strictly incidental to the relief, as in some cases it may be, so that discovery cannot be had unless the title to the relief be shown, then, if the title to relief is defeated, the whole bill must fail; but if the bill makes a case entitling the plaintiff to discovery inde- pendent of relief in that suit, as, for example, in aid of a suit at law, we perceive no good reason for holding that a demurrer to the -whole bill will lie because there is a prayer for relief; and so it was formerly held in England upon the ground that a party was not to be prejudiced for having asked too much." Currier v. Concord R. Corp., 48 N. H. 321; Story, Eq. PI. § 312, note 2; Brandon v. Sands, 2 Ves. Jr. 514; Sutton v. Scarborough, 9 Ves. 75; Attorney General V. Brown, 1 Swanst. 294; Mitford, Eq. PL 183, 184. In Livingston's Ex'rs V. Livingston, 4 Johns. Ch. (N. Y.) 294, Chancellor Kent laid it down as the law of New York that, if a bill for discovery and re- lief be good for discovery, a general demurrer to the whole bill was bad, which, he says, conforms to the ancient English practice. So, also, to the same effect, Kimberly v. Sells, 3 Johns. Ch. (N. Y.) 467. In Livingston v. Story, 9 Pet. (U. S.) 632, it is held that, if any part of a bill is good, and entitles the complainant either to relief or discovery, a demurrer to the whole bill cannot be sustained. And it is laid down as an established and universal rule that, if a bill for discovery and relief contains proper matter for the one and not for the other, the defendant should answer the proper, and demur to the improper, matter. If he demurs to the whole bill, the demurrer must he overruled. See, also, Wright v. Dame, 1 Mete. (Mass.) 237, where the demurrer to the whole bill was overruled, and a demurrer ore tenus to the relief was allowed, and the defendant required to answer (857) §805 EQUITY PLEA DING AND PRACTICE. [Ch. -iS contain allegations sufficient to entitle the court to retain the bill for relief if the discovery should be effectual ; otherwise it will be demurrable.* to the discovery. Currier v. Concord R. Corp., 48 N. H. 321. In Dummer v. Corporation of Chippenham, 14 Ves. 245, a demurrer was- overruled, and, in giving his opinion, Lord Bldon said that these per- sons may by answer discover part, and may insist, either in that mode or by demurrer, that they are not bound to discover other matters; but the complainant may have a chance of proving them, and might make a case for relief. Currier v. Concord R. Corp., 48 N. H. 321. "We adopt the old rule of pleading in equity that, on a general de- murrer to the whole bill, if there is any part, either as to the relief or discovery, to which the defendant ought to put in an answer, the demurrer, being entire, ought to be overruled. 1 Harrison, Ch. Pr. (7th Ed.) 414; Higinbotham v. Burnet, 5 Johns. Ch. (N. Y.) 186- This was the practice formerly adopted in England, and at present continued in New York. Story, Eg. PI. 253, 254, note. The defend- ant should answer as to the discovery, and demur as to the relief. Laight V. Morgan, 1 Johns. Cas. (N. Y.) 434. The demurrer of record is therefore overruled. But the defendant now demurs ore tenus to the prayer for relief, and that demurrer is allowed, but without costs." Wright v. Dame, 1 Mete. (Mass.) 237. "In many cases of bills for discovery and relief the defendant may demur to the dis- covery alone, and the demurrer will not extend to preclude the plain- tiff from having the relief asked for, if he can establish his right to it by other means than a discovery from the defendant himself, as when there is something in the defendant's situation which ren- ders it improper for a court of equity to compel a discovery, for the reason that it may expose the defendant to pains and penalties, or subject him to some forfeiture, or something in the nature of a for- feiture, or may lead to the violation of professional confidence. 1 Daniell, Ch. PI. & Pr. 625-627; Story, Eq. PI. §§ 547, 605; Livingston v. Harris, 3 Paige (N. Y.) 528, 537; Brownell v. Curtis, 10 Paige (N. Y.) 210, 214." Currier v. Concord R. Corp., 48 N. H. 321. To a bill for relief and discovery in aid of the relief sought, a demurrer is not sustainable exclusively to so much of the bill as seeks discovery, except where the discovery would subject the defendant to a penalty, or it is immaterial or impertinent, or involves a breach of confidence held inviolate by law, or appertains exclusively to defendant's title. Wistar v. McManes, 54 Pa. 318. See Mitford, Eq. PI. 184; Brightly, Eq. Jur. § 616. 9 Story, Eq. PL § 313; Mitford, Eq. PI. 124, 125; Walmsley v. Child, 1 Ves. Sr. 341; Whitfield v. Fausset, 1 Ves. Sr. 392. A bill for dis- covery and relief, in which no case is made for relief, cannot be main- tained as a bill of discovery. Courter v. Crescent Sewing Machine Co., (858) Ch. 45] BILLS OF DISCOVERY. § 807 § 806. Who may maintain a bill of discovery. A bill will lie by either party to an action at law to bave the discovery of matter material to tbe claim or defense at law.-^" A defendant at law may file a bill of discovery for tbe purpose of rebutting tbe evidence which is necessary to sustain tbe plaintiff's action. He is entitled to tbe discovery of evidence for tbe purpose of attack on tbe case of his adversary.-'^ It is held that a party is entitled to have a discovery in order to enable bim to defend aright and with effect a suit which is threatened to be brought against bim, or as auxiliary to the maintenance of a suit then contemplated to be brought.^^ The court may stay tbe proceedings at law until an answer to the bill of discovery has been obtained.-^* § 807. Matters of which discovery may be had. Tbe complainant must be entitled to the discovery he seeks, 60 N. J. Eq. 413, 45 Atl. 609; United New Jersey Railroad & Canal Co. v. Hoppock, 28 N. J. Eq. 261; Miller v. United States Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509. loBartlett v. Marshall, 2 Bibb (Ky.) 467. See Wolf v. Wolf's Ex'r, 2 Har. & G. (Md.) 383. "Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. (N. Y.) 91; Glasscott v. Governor & Co. of Copper-Miners of England, 11 Sim. 305. laParrott v. Chestertown Nat. Bank, 88 Md. 515, 41 Atl. 1067; Wolf V. Wolf's Ex'r, 2 Har. & G. (Md.) 382. But see Harris v. Galbraith, 43 111. 309, where it was held that whether a defendant in an action at law is entitled to a bill of discovery against one who is prosecut- ing an action at law against him cannot be determined until he has filed a plea in such action, divulging his defense. It is held that an ap- plication by a defendant, who has a common interest with the complain- ants adverse to that of the other defendants, for leave to examine a com- plainant against the other defendants, is substantially the same as if made by the complainants themselves, and such application will be denied. Eckford v. De Kay, 6 Paige (N. Y.) 565; Hewatson v. Tookey, 2 Dickens, 799; Phillips v. Bueks, 1 Vern. 230. Where the nature of the suit will admit of it, the proper course is to move to strike out the name of the nominal complainant, who is not interest- ed, and make him a defendant, so that he may be examined as a witness to sustain the suit. Eckford v. De Kay, 6 Paige (N. Y.) 565; Lloyd V. Wingfield, 1 Hogan, 192; Motteaux v. Mackreth, 1 Ves. Jr. 142; Lloyd v. Makeam, 6 Ves. 145. i» Wright V. King, Har. (Mich.) 12. (859) §807 EQUITY PLEADING AND PRACTICE. [Ch. 45 and can only have a discovery of what is necessary for his own title, as of deeds he claims under, and will not be allowed to pry into that of the defendant.^* The general rule laid down in the treatises on discovery limits it to the complainant's case, and forbids a discovery of the defendant's evidence, or of the means by which he intends to establish his case. It is, however, difficult to draw the line between what constitutes the com- plainant's case and what the defendant's.-'^ But if the com- plainant is entitled to the production of a deed or other docu- ment as being applicable to his ease, his right to such discovery will not be affecited by the circumstance that the same document is evidence of the defendant's case also.^^ The defendant must, in general, have a claim or interest, as otherwise a bill for discovery does not lie; but there are exceptions to the rule in cases of collusion and gross misconduct amounting to fraud, arbitrators charged with misconduct or fraud, bills seeking to impeach deeds on the ground of fraud, and in case of bills of discovery against a corporation, where the secretary or book- keeper or other officer, although he has no interest, may be made a party. ■^'^ A bill for discovery also lies to show that the de- fendant is incapable of having any interest, as where he is an 1*2 Barbour, Ch. Pr. 101; New Castle v. Pelham, 8 Vin. Abr. 551; Story, Eq. PI. § 317. It is not within the scope of this work to con- sider the circumstances under which a bill of discovery lies. The reader Is referred to 2 Story, Eq. Jur. §§ 1480-1504, and the works of Bray, Hare, and Wigram. 15 Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. (N. Y.) 91; Newkerk v. Willett, 2 Calnes Cas. (N. Y.) 296; Wigram, Disc. 90, 94, 112, and cases there cited. See Hare, Disc. 210, 211; Mitford, Eq. PI. 9; Met- calf V. Hervey, 1 Ves. Sr. 249; Glasscott v. Governor & Co. of Copper- Miners of England, 11 Sim. 305; Combe v. City of London, 1 Younge & C. 631; Colls V. Stevens, 7 Jur. 54; Glyn v. Scares, 1 Younge & C. 644; Bishop of London v. Pytche, 1 Brown Ch. 96; Janson v. Solarte, 2 Younge & C. 127. isBispham, Eq. § 561; Dock v. Dock (Pa.) 36 Atl. 411. 17 Story, Eq. PI. § 323 ; 2 Barbour, Ch. Pr. 103 ; Llngood v. Croucher, 2 Atk. 395; Chicot v. Lequesne, 2 Ves. Sr. 315; Bennet v. Vade, 2 Atk. 324; Colton v. Luttrell, 1 Atk. 451; Wych v. Meal, 3 P. Wms. 310. (860) Ch. 45] BILLS OF DISCOVERY. § 808 alien.^® It must be for matters which lie only in the knowl- edge of the defendant, and must call for something which it is not in the complainant's power to set out in his bill.^^ 5 808. From whom discovery may be had. A bill cannot be maintained against a person who is not a party to the suit in which the discovery sought for is to be used, even though such person is the substantial party in in- terest in the defense of that suit.^° A bill of discovery will not lie against one who may be called as a witness on the hearing of the cause for which the discovery is sought.^^ Where a corporation is made a party to a suit in which it has no in- terest, and to which it ought not to have been made a party, an officer of the corporation who has no personal interest in the controversy, and is not charged with any fraud or misconduct, cannot be compelled to answer matters as to which he is a mere witness.^^ No discovery will be compelled where it is against IS 2 Barbour, Cli. Pr. 103 ; Attorney-General v. Rose, Parker, 157. 19 2 Barbour, Cb. Pr. 103; Farley v. Farley, 1 McCord Bq. (S. C.) 517; Middletown Bank v. Russ, 3 Conn. 135; Price v. James, 2 Brown Cb. 319; CoUis v. Swayne, 4 Brown Cb. 480; 1 Haddock, Cb. Pr. 175; 2 Fonblanque, Eq. 394. A discovery will not be compelled where it would subject tbe defendant to a penalty, forfeiture, or criminal pro- ceedings, or would be in violation of professional confidence. 2 Bar- bour, Ch. Pr. 103; Marsh v. Davison, 9 Paige (N. Y.) 580. 20 Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276. See, however. Carter V. Jordan, 15 Ga. 76. 2iGelston v. Hoyt, 1 Johns. Ch. (N. Y.) 543; Post v. Boardman, 10 Paige (N. Y.) 580: Twells v. Costen, 1 Pars. Eq. Cas. (Pa.) 373; Plum- mer v. May, 1 Ves. Sr. 426; Norton v. Woods, 5 Paige (N. Y.) 251. See Howell V. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec. 371; Yates v. Monroe, 13 111. 212; Schmidt v. Dietericht, 1 Edw. Cb. (N. Y.) 119. A corpo- ration aggregate is bound to answer a bill of discovery the same as a natural person, except that it puts in its answer under its corporate seal, while a natural person makes answer under oath. It is tbe usual practice to join the clerk or other principal officer of a corpo- ration aggregate as a party to tbe bill of discovery. Indianapolis Gaa Co. V. City of Indianapolis, 90 Fed. 196. As to the joinder of corporate officers for the purpose of obtaining a discovery, see supra, § 47. 22 Ellsworth V. Curtis, 10 Paige (N. Y.) 105; How v. Best, 5 Madd. 19. See, for maintenance of bill of discovery against a corporation (861) §809 EQUITY PLEADING AND PRACTICE. [Ch. 45 the policy of the law from the particular relation of the parties. Thus, in the absence of statutory changes, for in- stance, if a bill of discovery is filed against a married woman to compel her to disclose facts which may charge her husband, it will be dismissed, for a married woman is not permitted to be a witness for or against her husband in controversies with third parties. Upon the same ground, a person standing^ in the relation of professional confidence to another, as his counsel or attorney, will not be compelled to disclose the secrets of his client.^^ § 809. Frame of bill. The bill must state the matter concerning which a discovery is sought, the interests of the several parties in the subject, and the complainant's right to the discovery asked.^* It should show that the complainant has a title and interest, and what that title and interest are, in the subject-matter respecting which discovery is sought, for a mere stranger cannot maintain a bill for the discovery of another's title. The title and in- terest must be shown to be present and vested. A complete title or interest, though it is or may be litigated, is sufiicient.^® It must clearly show that it is brought by persons and for ob- and its officers, Howell v. Ashmore, 9 N. J. Eq. 82, 57 Am. Dec, 371; Glasscott V. Governor & Co. of Copper-Miners of England, 11 Sim. 305. 23 2 Story, Eq. Jur. § 1496. "Lord Eedesdale (Mitford; Eq. PI. 288) says: 'If a bill seeks a discovery of a fact from one whose knowl- edge of the fact was derived from the confidence reposed in him as counsel, attorney, or arbitrator, he may plead in bar of the discovery that his knowledge of the facts was so obtained.' Mr. Cooper (Eq. PI. c. 5, p. 300) adopts similar language: 'In the cases referred to by Lord Redesdale, I do not find arbitrators mentioned, nor do I find that arbitrators are exempted from disclosing facts which have been stated before them, but only from stating the grounds of their award.' " • 2 Story, Eq. Jur. § 1496. 21 2 Barbour, Ch. Pr. 104. 25 2 Barbour, Ch. Pr. 104; Story, Eq. PI. § 318; Mitford, Eq. PI. 154- 157; Cooper, Eq. PI. 58; Young v. Colt, 2 Blatchf. 373, Fed. Cas. No. 18,155; Pease v. Pease, 8 Mete. (Mass.) 395; Sackville v. Ayleworth, 1 Vern. 105. (862) Oh. 45] BILLS OP DISCOVERY. § 809 jects and under circumstances entitling it to be maintained by tke court. One of the fundamental rules of this branch of equity jurisprudence is that the complainant is entitled only to a ■discovery of what is necessary to maintain his own title, as, for •example, of deeds under which he claims ; but he is not entitled to have a discovery of the title of the other party, from whom Jie seeks the discovery. Hence it may be stated, as a general rule, that the bill must show such a case as renders the dis- 'Covery material to the complainant in the bill, to support or •defend a suit.^® If it seeks the discovery of deeds and accounts, it must also describe them with reasonable certainty. There- fore, where a bill stated generally that, under some deeds of settlement in the custody of the defendant, the complainant "was entitled to some estates, either in fee or absolutely, or as tenant for life, or in tail in possession, or in some other man- ner, as by the deeds in the custody or power of the defendant would appear, and prayed a discovery thereof, upon demurrer, the bill was held bad for vagueness and uncertainty, and was treated as a mere fishing bill.^''^ The bill, too, must not only show an interest in the complainant in the subject-matter to which the required discovery relates, and such an interest as entitles him to call on the defendant for the discovery, but it must also state a case which will constitute a just ground for .a suit or a defense at law. The object of the court in compel- ling a discovery is to enable some other court to decide on mat- . ters in dispute between the parties, the discovery of which is material. If the bill does not show such a case, it is plainly not a case for the interposition of the court.^® The bill must generally show that the defendant has some interest in the sub- ject-matter of the discovery. If he is a mere witness, the bill ■■cannot ordinarily be maintained against him. It is not always 28 story, Bq. PI. § 317; 2 Barbour, Ch. Pr. 104; Cooper, Bq. PI. 58; Mitford, Bq. PI. 190, 191. 27 Story, Bq. PI. § 320; Ryves v. Ryves, 3 Ves. 343. 28 Story, Bq. PI. § 319; 2 Barbour, Qh. Pr. 104; Cooper, Bq. PI. 60; "Welford, Bq. PI. 119; Hare, Disc. 11, 43, 110. (863) § 809 EQUITY PLEADING AND PRACTICE. [Cli. 45 sufficient to show that both complainant and defendant have an interest in the subject-matter of the suit. If the right of dis- covery arises from any privity of title between them, the bill must aver such privity with reasonable certainty.^® The bill must state that the discovery is asked for the purpose of some suit brought, or intended to be brought; otherwise it will not be maintained. It must set forth with reasonable certainty the nature of the suit brought or intended to be brought, and against whom in particular it is to be brought.*" The bill must show such a case as renders the discovery material to support or defend a suit f^ but while it is necessary to show in the bill that the discovery is material to the prosecution or the defense at law of the party asking the same, and the maimer in which it is material, it is not necessary to aver that the discovery is absolutely necessary thereto. It will be sufficient to state and show that it is material evidence. Thus, for example, it is not necessary to allege in the bill that the complainant has no other witness or evidence to establish at law the facts of which the discovery is sought ; for he is entitled to it if it be merely cumu- 29 Story, Eq. PI. §§ 323, 324; Mitford, Eq. PI. 189, 190. 30 Story, Eq. PI. §§ 321, 322; Mitford, Eq. PI. 53; Cooper, Eq. PI. 58; 2 Barbour, Ch. Pr. 105; Cardale v. Watkins, 5 Madd. 18; Mitchell v. Green, 10 Mete. (Mass.) 101; Haskins v. Burr, 106 Mass. 48; United New Jersey Railroad & Canal Co. v. Hoppock, 28 N. J. Eq. 261; Stebbins v. Cowles, 10 Conn. 399 ; City of London v. Levy, 8 Ves. 398 ; Buckner v. Ferguson, 44 Miss. 677; Pease v. Pease, 8 Mete. (Mass.) 395; Kearny V. Jeffries, 48 Miss. 343. "In regard to the natjire of the suit, also, the ground is equally elear, for there are certain sorts of suits, in respect to which a court of equity will not interfere or give aid by way of dis- covery; as, for example, a suit for a penalty or a forfeiture, or in aid of a writ of mandamus, or of a criminal prosecution. Where the bill is brought before any action, it is usual to aver in the bill that the discovery of the facts is necessary to enable the party to commence his suit right." Story, Eq. PI. § 322; 2 Story, Eq. Jur. § 1494; Montague V. Dudman, 2 Ves. Sr. 398; Moodalay v. Morton, 1 Brown Ch. 469, 2 Dickens, 652. See Hare, Disc. 51, 110; Atlantic Ins. Co. v. Lunar, 1 Sandf. Ch. (N. Y.) 91. 31 Story, Eq. PI. § 319; Mclntyre v. Mancius, 3 Johns. Ch. (N. Y.) 45; Rondeau v. "Wyatt, 3 BroAvn Ch. 154; Leggett v. Postley, 2 Paige (N. Y.) 599; Bass v. Bass, 4 Hen. & M. (Va.) 478. (864) Ch. 45] BILLS OP DISCOVERY. § e:0'> lative evidence of material facts. It would be otherwise if the bill should not only ask discovery, but should ask relief in equity; for it is only on the circumstance that the discovery is necessary that the jurisdiction to grant the relief is founded.^^ The bill should show that the defendant is capable of making the 32 Russell V. DickescMed, 24 W. Va. 61 ; Howell v. Ashmore, 9 N. J. Eq. 82; 2 Barbour, Ch. Pr. 104-106; Lane v. Stebbins, 9 Paige (N. Y.) 622; Marsh v. Davison, 9 Paige (N. Y.) 580; Lucas v. Bank of Darien, 2 Stew. (Ala.) 280; Buckner v. Ferguson, 44 Miss. 677; Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795; Jones v. Bradshaw, 16 Grat. (Va.) 355. "In order to maintain a bill of discovery in aid of a suit at law, it is necessary for the complainant to show that the informa- tion sought is relevant and material to the issue, or to some issue raised in such suit. He must also show that he is justly entitled thereto, as evidence in connection with the preparation and trial of his case, and that such evidence is necessary to enable him fully to prose- cute or defend the same. De Wolf v. De Wolf, 4 R. I. 450; Arnold v. Pawtuxet Valley Water Co., 18 R. I. 189, 26 Atl. 55; Finch v. Finch, 2 Ves. Sr. 492; Bailey v. Dean, 5 Barb. (N. Y.) 297. Some of the ad- judged cases go further than this, and require the party seeking a dis- covery to show affirmatively in his bill that the right which he seeks to enforce at law cannot be established without the discovery sought. Whitesides v. Lafferty, 9 Humph. (Tenn.) 27; Vaughan v. Central Pac. R. Co., 4 Sawy. 280, Fed. Cas. No. 16,897. But the decided preponder- ance of authority seems to be to the effect that, if the discovery may be in any way material to the complainant for the purpose of his suit, the respondents may be compelled to make it. 1 Daniell, Ch. Pr. (6th Ed.) 570, 571; Kuypers v. Reformed Dutch Church, 6 Paige (N. Y.) 570; Uhlmann v. Arnholt & Schaeffer Brewing Co., 41 Fed. 369; Beall V. Blake, 10 Ga. 449. Sir J. Wigram says, however, that, 'in de- termining whether particular discovery is material or not, the court will exercise a discretion in refusing to enforce it, where it is remota in its bearings upon the real point in issue, and would be an oppress- ive inquisition.' [Wigram, Disc. p. 2.] At all events, we think the; jurisdiction invoked by a bill of this sort is one which should always be exercised with caution, as it is liable to be used for improper pur- poses. Lea V. Saxby, 32 Law T. (N. S.) 731; Kennedy v. Dodson [1895] 1 Ch. 334; Carver v. Pinto Leite, 7 Ch. App. 90; Wigram, Disc. p. 2, par. 5. Moreover, it is not sufficient, in a bill of discovery, for the complainant to allege that the matters as to which a discovery is sought are material to the proving of his action at law, but he must state his case in such a manner that the court will be able to see how such matters may be material on the trial thereof. Lane v. Stebbins, 9 Paige (N. Y.) 622. See, also, McCartney v. Fletcher, 10 App. D. C. 672." Gorman v. Banigan, 22 R. I. 22, 46 Atl. 38. "The bill does not (865) Equity. — 55. § 809 EQUITY PLEADING AND PRACTICE. [Ch. 45 discovery needed.*^ It is held that if a matter essential to the determination of the complainant's claims is charged to rest in the knowledge of the defendant, or must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought, a precise allegation is not required.^* In a bill for the discovery and production of deeds, it is necessary to charge that the deeds have come to or are in the hands of the de- fendants.^^ Where officers or agents of a corporation are made parties to a bill for the purpose of obtaining a discovery of facts within their knowledge as such officers or agents, the bill need not charge that they alone are acquainted with the facts as to which an answer is sought. It is sufficient if it appears that the facts charged are material to the relief sought against the corpora- tion, and are known to the officers or agents as such, especially if the discovery relates to transactions with them and in that character.^® If the bill contains no prayer for relief, it will be considered as a bill for discovery merely, although, in the prayer for process of subpoena, the word "decree" is erroneous- ly added to the words usually inserted in a bill of discovery. aver tliat tlie facts are known to no other person than the defendant, and In Vennum v. Davis, 35 111. 568, it was held that such an aver- ment was necessary to a bill for discovery and final relief. The rule is different in a bill which is filed purely for discovery in aid of a suit at law. In such a case it is suflicient to aver that the evidence will aid the complainant in the suit at law. 6 Enc. PI. & Pr. 733; Story, Eq. Jur. § 324; Marsh v. Davison, 9 Paige (N. Y.) 580." Rob- son V. Doyle, 191 111. 566, 61 N. E. 435. 33 Horton v. Moseley, 17 Ala. 794; Irwin v. Bailey, 72 Ala. 467; Plumb V. Bateman, 2 App. D. C. 156. See Primmer v. Patten, 32 111. 528. 3* Metier v. Metler's Adm'rs, 19 N. J. Eq. 457; Bennett v. Woolfolk, 15 Ga. 213. 35 Hough V. Martin, 22 N. C. 379, 34 Am. Dec. 403. A bill for dis- covery concerning the execution and loss of a deed is demurrable if it fails to allege that such loss or destruction was occasioned without complainant's fault, and through the fault of the defendant. Lancy v. Randlett, 80 Me. 169, 13 Atl. 686. «6 Many v. Beekman Iron Co., 9 Paige (N. Y.) 188; Wright v. Dame, 1 Mete. (Mass.) 237; Wych v. Meal, 3 P. Wms. 310; Dummer v. Cor- poration of Chippenham, 14 Ves. 245. <866) Ch. 45] BILLS OF DISCOVERY. . § 809 The prayer for "process," properly so called, is that the com- plainant "may have a full disclosure and discovery of all and every the matters and things aforesaid, and that the said de- fendant may abide the order and direction of the court," etc. Where the complainant makes an officer of a corporation a party defendant for the purpose of obtaining a discovery against the corporation, no relief should be prayed against him. The prayer should show distinctly that the relief sought is confined to the corporation. Praying relief against some of the defend- ants in a suit, as to whom the complainant is not entitled to relief, but to discovery merely, will not render the bill multifa- rious.*'^ Any special prayer that will require the cause to bo brought to a hearing will be deemed a prayer for relief. If any exercise of the jurisdiction of the court is prayed which involves the necessity of a hearing and decree or decretal order on those rights, the suit is thereby rendered a suit for relief.** s^ story, Eq. PI. §§ 312-315; 2 Barbour, Ch. Pr. 107; Many v. Beekman Iron Co., 9 Paige (N. Y.) 189; Mclntyre v. Trustees of Union College, 6 Paige (N. Y.) 239; Kearny v. Jeffries, 48 Miss. 343; Welles v. River Raisin & Grand River R. Co., Walk. (Mich.) 35; Little v. Cooper, 10 N. J. Eq. 273. S8 2 Barbour, Ch. Pr. 107, 108; Many v. Beekman Iron Co., 9 Paige (N. Y.) 189; Vaughan v. Fitzgerald, 1 Schoales & L. 316; Noble v. Gar- land, 19 Ves. 376; Miller v. United States Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509. "What constitutes, in the sense of the rule, a prayer for relief, is a matter of some nicety; for there are some kinds of equitable relief which may be sought by a bill, whose main object Is the discovery of evidence, and where the refusal of that relief would not be decisive against granting the discovery. Lord Redesdale has said that, to administer to the ends of justice without pronouncing any judgment which may affect any rights, the courts of equity in many cases compel a discovery which may enable other courts to de- cide on the subject. This suggestion, perhaps, furnishes the means of defining the sort of relief which is within the contemplation of the rule. The court cannot pronounce any judgment on the rights of the parties except upon a hearing of the cause. It would seem, therefore, to follow that, if any exercise of the jurisdiction of the court is prayed which involves the necessity of a hearing, and a decree or a decretal order on those rights, the- suit is thereby rendered a suit for relief, and is liable to all the incidents of that proceeding. On the other hand, if the assistance which is prayed in addition to the discovery (867) §810 EQUITY PLEADING AND PRACTICE. [Ch. 45 i 810. Waiving answer under oath. Originally, the complainant was required to pray for answer on oathj and was bound by the answer if he could not over- be such as the court will give without a hearing of .the cause, and no decree or decretal order he necessary on any rights, as no judgment on any right is required, the rule would seem to be inapplicable." Story, Eq. PI. § 314; Mitford, Eq. PI. 148; 1 Story, Eq. Jur. §§ 81-86. "This distinction may be illustrated by a few common examples. It is a nat- ural, if not a necessary, incident to the usefulness of a bill of discovery, that in the meantime, and until the discovery is obtained, the proceed- ings in the suit at law should be stayed, for otherwise the discovery might be wholly fruitless. Hence, bills of discovery usually contain a prayer for an injunction until the discovery is obtained. In one sense, this is a prayer for relief; but it being relief which is granted upon mo- tion, without any hearing of the rights or merits involved in the cause, it does not fall within the scope of the rule. So, a prayer for a com- mission to examine witnesses infirm or abroad, or to perpetuate the testimony of witnesses, may be added to a bill of discovery, and does not make it a bill for relief, within the rule, for in neither of these cases is the cause ever brought to a hearing. So, a prayer for the production of deeds in court, of which a discovery is sought, is not such a prayer for relief, for it is merely incidental to the discovery, and may be obtained upon motion, where the bill is for discovery only. Nor would a prayer that the deeds or papers sought to be discovered, when discovered, should be produced as evidence at the trial, be deemed a prayer for relief, for it is a necessary part of the order of the court upon bills for discovery of deeds and papers in aid of a trial at law." Story, Eq. PI. § 315; Hare, Disc. 12, 13. See, also. Noble V. Garland, 19 Ves. 376; Barker v. Ray, 5 Madd. 64; Crow v. Tyrell, 2 Madd. 408; Hall v. Hoddesdon, 2 P. Wms. 162. "On the other hand, if a bill of discovery contains the formal prayer for general relief, that the plaintiff 'may have such further and other relief as the circumstances of the case may require, and to the court may seem meet,' that would be construed to make it a bill for relief. So, a pray- er, in praying process, that the defendant may abide such order and decree as the court shall think proper to make, has been held to be a prayer of relief; but this seems to be questionable In its principle. So, any special prayer that will require the cause to be brought to a hearing will be deemed a prayer for relief, — as that the copy of a will may be decreed to be a true copy. But a prayer 'to stand by and abide such order' as to the court shall seem meet, without adding the word 'decree,' would not be deemed a prayer for relief, but merely for such an order as is consistent with the general scope of the case made by the bill. Why an equally liberal interpretation should not prevail when the word 'decree' is added, if it is obvious that the party seeks (868) Cli. 45] BILLS OF DISCOVERY. § 811 come it by preponderance of evidence. It was because a cor- poration could not make oath, and answered only under its common seal, that discovery by it had to be secured by the somewhat incongruous course of making its officers co-defend- ants. In special cases the chancellor would permit the com- plainant to waive answer on oath, but would not ordinarily com- pel affirmative discovery where the defendant could not have the attendant advantages. The subject came to be regulated, in some jurisdictions, by standing rule of court, and, in others, by statute. Most states now have such statutes, and the decisions on the subject in those states can only be understood when the statutes are read with them. There must also be borne in mind the difference, often lost sight of, between bills for dis- covery only, and bills for relief with incidental discovery.^® § 811. Verification. A bill for a discovery merely, or which only prays the de- livery of deeds or writings or equitable belief grounded on them, does not require an affidavit.*" A bill seeking a dis- covery of deeds or writings sometimes prays relief founded on the deeds or writings of which the discovery is sought. If the relief so prayed is such as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must, no other relief than what may properly be given upon a mere bill of discovery, it is not very easy to say." Story, Eq. PI. § 316. See Baker v. Bramah, 7 Sim. 17; Vaughan v. Fitzgerald, 1 Schoales & L. 316; Rose V. Gannel, 3 Atk. 439; Ambury v. Jones, Younge, 199; Schroeppel v. Redfleld, 5 Paige' (N. Y.) 245; Mclntyre v. Trustees of Union College, 6 Paige (N. Y.) 242. 39 Manley v. Mickle, 55 N. J. Eq. 563, 37 Atl. 738. See, on this point, Congdon v. Aylsworth, 16 R. I. 281, 18 Atl. 247; Word v. Peck, 114 Mass. 121; Badger v. McNamara, 123 Mass. 117; McCulla v. Beadleston, 17 R. I. 20, 20 Atl. 11; Huntington v. Saunders, 120 TJ. S. 78; McClana- han V. Davis, 8 How. (U. S.) 170; Metier v. Metler's Adm'rs, 19 N. J. Eq. 457; TJhlmann v. Arnholt & Schaeffer Brewing Co., 41 Fed. 369; Payne v. Berry, 3 Tenn. Ch. 154. 40 Cooper, Eq. PI. 61; 2 Barbour, Ch. Pr. 106; Buckner v. Ferguson, 44 Miss. 677; McElwee v. Sutton, 1 Hill Eq. (S. C.) 32, citing Cooper, Eq. PI. 61; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260. (869) §812 EQUITY PLEADING AND PRACTICE. [Ch. 45 by the English practice, annex to his bill an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defendants.*^ When, from any cause, discovery is necessary in aid of conten- tions purely legal, and the relief sought is in its nature purely legal, a bill for discovery must be sworn to, or a demurrer will lie." i 812. Amending bill. It has been held that courts will not allow a bill of discovery to be amended by adding parties as complainants.*^ It is stated to have been formerly a frequent practice to frame a bill for dis- covery only, in the first instance, and, after it was obtained, to amend the bill, in order to try the title to relief, but that this practice has been discontinued, and that the allowance of an amendment only applies in cases where the equity of the com- *i 2 Barbour, Ch. Pr. 106; Parson's Adm'r v. Wilson, 2 Overt. (Tenn.) 260; Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 294; Hook v. Dorman, 1 Sim. & S. 227; Buckner v. Ferguson, 44 Miss. 677; Find- lay V. Hinde, 1 Pet. (U. S.) 241. See Le Roy v. Servis, Caines Cas. (N. Y.) 1. The rule that, where resort is had to a court of equity upon the ground that the writings upon which the suit is founded have been lost or destroyed, an affidavit of such fact is necessary, does not apply to a case where the defendants are severally called upon by the bill to answer whether they executed a bond or instrument in writing or print, by which they received and became the owners of shares of stock of a corporation, and whether they received certificates of such shares or not. Holmes v. Sherwood, 16 Fed. 725. *2Mitford & T. PI. & Pr. in Eq. 153, note; 3 Pomeroy, Eq. Jur. 5 1415; Story, Eq. PI. §S 288, 313, 477; Lawson v. Warren, 89 Ala. 584, 8 So. 141. But see Laight v. Morgan, 1 Johns. Cas. (N. Y.) 429; Dins- more V. Crossman, 53 Me. 441. When the complainant seeks, in addi- tion to the discovery, to stay proceedings in a suit pending at law, he must support the allegations of the bill by an affidavit of their truth. Owsley v. Barbour, 4 Ind. 584, citing Appleyard v. Seton, 16 Ves. 223. It is said that if the party charged by the bill fails to de- mur for that cause, but answers over, or permits the bill to be taken for confessed against him by default, the absence of the affidavit is not a sufficient cause for reversal of the decree. Findlay v. Hinde, 1 Pet. (U. S.) 241. *3 Cholmondeley v. Clinton, 2 Mer. 74. But see Hare, Disc. 126. (870) Ch. 45] BILLS OF DISCOVERY. v § 313 plainant has appeared upon some disclosure of the defendant, or where the answer furnishes a ground for supposing that the re- lief is in equity, and not at law. In other cases it will be re- fused. In all cases the amendment must be made the subject of a special application, and is not a motion of course.** § 813. Infants as parties to bills of discovery. Infants cannot be made parties to a bill for the sake of dis- covery merely, as they do not answer on their own oaths.* ^ A demurrer to a bill for discovery merely will not hold for want of parties, for the complainant seeks no decree.*® When a bill of discovery is filed in aid of an action at law, no person can be made a party to the bill of discovery who is not a party to 1*2 Barbour, Ch. Pr. 116; Mitford, Eq. PI. 184; Hare, Disc. 23; But- terworth v. Bailey, 15 Ves. 358; Jackson v. Strong, 13 Price, 494; Hildyard v. Cressy, 3 Atk. 303; Lousada v. Templer, 2 Russ. 564; Perkins v. Hendryx, 31 Fed. 522; Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. See, however, Parker v. Ford, 1 Colly. 506. A bill filed and resisted as one merely auxiliary to a case at law cannot be con- verted by amendment on final hearing into a suit for full and inde- pendent relief under another branch of equity. Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. "A mere bill of discovery may be so amended, after the defendant has answered, as to pray for relief in this court; and it is an established rule that, in answering even such an amended bill, the defendant must confine himself to it alone, and cannot be permitted to put in a complete answer over again; and therefore it is not only allowable, but necessary for the defendant's own safety, that he should set forth and rely upon his defense in his answer to such an original bill, lest it should be so amended as to make it necessary for him to sustain such a defense even in this court." Price v. Tyson, 3 Bland (Md.) 392; Hildyard v. Cressy, 3. Atk. 303. An amendment to a bill proposed on the final hearing with the design of introducing or substituting a new controversy in principle will generally be refused. Bills of discovery have in some cases been made bills of relief at an earlier stage of the suit. Livingston v. Hayes, 43 Mich. 129, 5 N. W. 78. Such an amendment is such a change as justifies an amendment of the answer. Perkins v. Hendryx, 31 Fed. 522. 45 2 Barbour, Ch. Pr. 116; Leggett v. Sellon, 3 Paige (N. Y.) 84. See, for doubt as to right of discovery from habitual drunkard found to be such by inquisition, New v. New, 6 Paige (N. Y.) 237; 2 Barbour, Ch. Pr. 225. Mr. Pomeroy says that lunatics without committees cannot be made parties. Pomeroy, Eq. Jur. § 199. 46 Story, Eq. PI. § 610. (871) §814 EQUITY PLEADING AND PRACTICE. [Ch. 45 the suit at law.^^ Several persons, haying distinct interests, who are implicated, though in different degrees, in the con- nected series of acts intended to defraud the complainant, may be united as defendants in a hill by him for discovery and re- lief against fraud.*® Where a bill is filed to compel a dis- covery and conveyance of land, all persons interested in such land ought to be made parties.*^ i 814. Form of bill for discovery. [Title of court, and address to the court.] Humbly complaining, shows unto your honors your orator, A. D., of, etc.: That your orator now is, and for several years last past has been, seised in his demesne as of fee of, or otherwise well en- titled to, all those three pieces or parcels of land, etc., and which were, in the year , purchased by your orator from C. D., then of, etc., but since deceased, who, by certain indentures of lease and release, bearing date the day of , respectively, and made between the said C. D. of the one part and your orator of the other part, for the considerations therein mentioned, duly conveyed the same to your orator, his heirs and assigns forever, as by the said indenture, refer- ence being thereunto had, will appear; and under and by virtue of such conveyance your orator entered into and upon the said premises, of which he has ever since been and now is in the actual possession, and your orator hoped to have continued in the uninterrupted enjoy- i^ Story, Eq. PI. §§ 569, 610, note, 610a. See Glyn v. Scares, 3 Mylne & K. 450; Irving v. Thompson, 9 Sim. 17. *s BrinkerhofE v. Brown, 6 Johns. Ch. (N. Y.) 139. 49 Key's Ex'rs v. Lambert, 1 Hen. & M. (Va.) 330. See, also. Broad- bent V. State, 7 Md. 416; Smith v. Smith's Adm'r, 92 Va. 696, 24 S. E. 280. See for making officers of corporations parties to bills of discov- ery, Colonial & United States Mortg. Co. v. Hutchinson Mortg. Co., 44 Fed. 219; McComb v. Chicago, St. L. & N. 0. R. Co., 19 Blatchf. 69, 7 Fed. 426; Virginia & A. Min. & Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 256; Brumly v. Westchester County Mfg. Soc, 1 Johns. Ch. (N. Y.) 366; Vermilyea v. Fulton Bank, 1 Paige (N. Y.) 37; Lindsley v. James, 3 Cold. (Tenn.) 477; Buckner v. Abrahams, 3 Tenn. Ch. 346; Fulton Bank v. Sharon Canal Co., 1 Paige (N. Y.) 219. See, for making witnesses parties, supra, § 47. It is useless and improper to make the counsel of a person a party to a mere bill of discovery as to papers alleged to be in his possession, even if the matters inquired of by the bill could be properly disclosed by the counsel if called as a witness against his client. Wakeman v. Bailey, 3 Barb. Ch. (N. Y.) 482. (872) Ch. 45] BILLS OF DISCOVERY. § 814 ment thereof. But now so it is, may it please your honors, E. D., of, etc. (the defendant hereinafter named), combining, etc. [here insert charge of confederacy as in bill set forth in section 69, supra], upon the decease of the said C. D., obtained possession of, and now has in his custody or power, all the title deeds, evidences, and writings of the said C. D., which not only relate to the said premises so pur- chased by your orator as aforesaid, but also to the other estates formerly belonging to the said C. D., and which, upon his death, de- scended to and became vested in the said B. D., his heir at law. And the said E. D. pretends that he is also entitled to the said premises so purchased by your orator as aforesaid, and that the said C. D. had no power to dispose thereof, and he has lately brought an action of ejectment against your orator in the court in order to en- force such claim; whereas your orator charges that the said B. D. has no right or title whatever to the said premises so purchased by your orator from the said C. D. as aforesaid, but that the said C. D. had good right to sell and dispose thereof, and that his conveyance of the said premises to your orator was and is valid and effectual, and so it would appear if the said E. D. would discover and set forth the said title deeds, evidences, and writings relative thereto, so pos- sessed by him as aforesaid. And your orator charges that there is or are some outstanding term or terms of years prior to your orator's said conveyance which will defeat your orator's title to the said prem- ises at law, but the said E. D. refuses to discover the particulars thereof, and to set forth the said title deeds, evidences, and writings relative to the said premises so purchased by your orator as afore- said, and threatens and intends to proceed in the said action with- out making such discovery as aforesaid, unless he shall be restrained therefrom by the order and injunction of this honorable court, as your orator charges he ought to be until he shall have so done. In consideration whereof, and forasmuch as your orator is remediless in the premises at common law, and cannot have a complete discovery of the said title deeds, evidences, and writings, and of the several matters aforesaid, without the aid of a court of equity, where matters of this sort are properly cognizable: To the end, etc. [Here insert interrogating part, which will be found in the form of bill set forth in section 69, supra.] And particularly that the said E. D. may dis- cover and set forth in manner aforesaid whether your orator is not now, and has not been for several, and how many, years last past, and from what time in particular, seised in his demesne as of fee or other- wise, and how well entitled of, in, or to the said premises herein- before particularly mentioned and described, or some and what part thereof, or how otherwise. And whether the same were not purchased by your orator in the year , and when in particular, of and from the said C. D. And whether the said premises were not duly conveyed to your orator by the said C. D., as by such indentures of lease and (873) § 814 EQUITY PLEADING AND PRACTICE. [Ch. 45 release of such date, respectively, as aforesaid, or by some and what other means in particular. And whether your orator did not, under and by virtue of such conveyance to him by the said C. D., enter into and upon, and has not ever since been in the actual possession and enjoy- ment of, the said premises, or how otherwise. And whether the said C. D. has not since departed this life, and when. And whether the said E. D. did not, upon the decease of said C. D., and by what means, obtain possession of, and has not now in his custody, possession, or power, all or most or some, and which, of the title deeds, evidences, and writings of the said C. D. relating to the premises so purchased by your orator as aforesaid. And whether the same do not relate to some, and what, other estates, or how otherwise. And that the said E. D. may set forth a list or schedule of all title deeds, evidences, and writings relating to the said premises so purchased by your orator as aforesaid, and may leave the same in the hands of the clerk of this honorable court for the inspection of your orator, with liberty for your orator, his solicitor or agents, to take copies thereof or extracts there- from, as he may be advised. And whether the said E. D. has not brought such action of ejectment against your orator, and for such purpose as hereinbefore mentioned, and does not threaten and intend to proceed therein, without making any discovery of the several mat- ters aforesaid, unless he shall be restrained therefrom as aforesaid, or how otherwise. And that the said B. D. may also discover and set forth, in manner aforesaid, whether there is or are any, and what, out- standing term or terms of years, or other, and what, subsisting estate in the said premises, prior to your orator's said estate and interest therein, which will defeat the title of your orator, and prevent a good defense at law to the said action, and In whom the same is or are vested; and that he may also discover and set forth how he makes out and derives his pretended title and claim to the said premises so purchased by your orator as aforesaid, and the nature and particulars thereof. And that the said E. D. may make a full and true disclosure and discovery of the several matters aforesaid, to the end that your orator may be the better enabled to defend the said ejectment; and that in the meantime, and until the said B. D. shall have made such discovery as aforesaid, that he may be restrained by the order and injunction of this honorable court from further proceedings in the said ejectment, and all further and other proceedings at law whatso- ever against your orator touching the several matters aforesaid, or any of them. May it please, etc. [Pray subpoena against B. D., omit- ting the word "decree" in the general words. If injunction to restrain proceedings at law is desired, pray It.] A. B., E. P., Solicitor for Complainant. Complainant. [Add verification.] 50 50 This bill should never pray relief. This form is taken from Willis, (874) Ch. 45] BILLS OF DISCOVERY. § 817 § 815. Process upon bills of discovery. The complainant must take out process and secure its service in tlie same manner as upon original bills.^^ 5 816. Defenses to bills of discovery. The defense to a bill of discovery may be made either by a demurrer, plea, or answer. If the matter relied on by the de- fendant constitutes a defense to the relief or purpose sought by the bill, whether that relief be at law or in equity ; or if the de- fense be that the complainant has no title to equitable relief, or has no interest in the subject-matter ; or that the defendant has no interest in the subject-matter; or that the defendant is a hona fide purchaser for a valuable consideration without notice ; or that the bill does not declare a purpose for which courts of equity will compel a discovery ; or that the complainant is under some disability, — in these and the like cases, though the defense extends to the entire subject of the suit, it seems now settled that the objection must be taken by way of plea or demurrer.^^ A defendant is not bound to answer or disclose any facts show- ing that he has been guilty of any act for which he is liable to an indictment, or which can subject him to a penalty or for- feiture.** § 817. Demurrers to bills of discovery. Grenerally, when the objection to a bill appears upon its face, PI. in Eq. 316 (Law Library, vol. 35). The same form may be found in Curtis, Bq. Free. 110. 51 Stafford v. Brown, 4 Paige (N. Y.) 360; Peebles v. Boggs, 1 Phila. (Pa.) 151. 52 2 Barbour, Cb. Pr. 109. 53 Taylor v. Bruen, 2 Barb. Ch. (N. Y.) 301. "It is ordinarily a good objection to a bill of discovery that it seeks the discovery from a de- fendant who is a mere witness, and has no interest in the suit; for, as he may be examined in the suit as a witness, there is no ground to make him a party to a bill of discovery, since his answer would not be evidence against any other person in the suit. 2 Story, Eq. Jur. §§ 1489, 1499." Detroit Copper & Brass Rolling Mills v. Ledwidge, 162 III. 305, 44 N. E. 751. (875) §817 EQUITY PLEADING AND PRACTICE. [Ch. 45 advantage may be taken of it in tlie same manner as upon a bill for relief by demurrer. This is true, whether the objec- tion applies to the whole of the bill or to particular discoveries only. Unless it appears clearly by the bill that the complain- ant is not entitled to the discovery he requires, or that the de- fendant ought not to be compelled to make it, a demurrer to the discovery will not hold, and the defendant, unless he can pro- tect himself by plea, must answer.^* Where the bill is for dis- covery and relief, the defendant may demur to the relief and answer to the discovery. And a demurrer which is good to the relief, generally defeats the discovery also.^^ There is a class of cases in which the defendant may refuse to make a dis- covery as to particular charges contained in the bill, although a demurrer could not have been sustained as to the relief which the complainant intends to found upon those charges. Such are cases in which the discovery asked would tend to criminate the defendant, or subject him to a penalty or forfeiture, or would be a breach of confidence, which some principle of public policy does not allow, and where the complainant may be en- titled to the relief sought upon the matters charged in the bill, although the defendant is not bound to make a discovery to aid in establishing the facts.^^ Where the same principle upon Sii 2 Barbour, Cli. Pr. 109; Evans v. Lancaster City St. Ry. Co., 64 Fed. 626. 55 2 Barbour, Ch. Pr. 109; Hodgkin v. Longden, 8 Ves. 3. 50 2 Barbour, Ch. Pr. 110; Hare, Disc. 5; Currier v. Concord R. Corp., 48 N. H. 321; Wistar v. McManes, 54 Pa. 318, 93 Am. Dec. 700; Attor- ney-General V. Brown, 1 Swanst. 294. See Livingston v. Harris, 3 Paige (N. Y.) 528; Brownell v. Curtis, 10 Paige (N. Y.) 210; National Banli of "West Grove v. Earle, 196 Pa. 217, 46 Atl. 268. "A defendant may refuse to answer, not only as to facts directly criminating him, but as to any fact which might form a link in the chain of evidence establishing his liability to punishment, penalty, or forfeiture. 1 Daniell, Ch. Pr. 561-569; 2 Daniell, Ch. Pr. 1557; 1 Pomeroy, Eq. Jur. §§ 196, 202; 6 Bnc. PI. & Pr. 742, 744." Robson v. Doyle, 191 111. 566, 61 N. E. 435. "It is true that a demurrer to discovery on the ground that it may incriminate may be regarded as involving an aflSrm- ative claim of privilege. Prof. Langdell says, however: 'A demurrer to discovery, indeed, is not in its nature a demurrer at all, but a mere (8Y6) Ch. 45] BILLS OF DISCOVERY. § 817 ■which the demurrer to the discovery of the truth of certain charges in the bill is sought to be sustained is equally ap- plicable to the relief, the defendant cannot be permitted to demur as to the discovery only, and answer as to the relief.^^ Where the discovery sought is not a mere incident to the relief prayed, it is said to be doubtful whether a demurrer to the re- lief only would not be bad.^* Where the sole object of the bill is to obtain a discovery, some grounds of demurrer which, if the bill prayed relief, would extend to discovery as well as relief, will not hold. Thus, a demurrer to a bill of discovery merely will not lie for want of equity, or for want of parties, for the complainant seeks no decree; nor because the bill is brought for the discovery of part of the matter, for that is merely a demurrer because the discovery would be insufficient.^® A de- murrer will hold to a bill of discovery of several distinct mat- statement in writing that tlie defendant refuses to answer certain alle- gations in the bill, for reasons which appear upon the face of the bill, and which the demurrer points out.' Langdell, Eq. PI. §§ 69, 97. There would seem to be no practical reason for requiring a defendant to make oath merely that he declines to answer. Therefore, if an oath is ever necessary, it must be to supply reasons justifying the refusal. But it is obviously possible that a bill may disclose on its face sufli- cient to justify the defendant's claim of privilege. When this is so, it would seem entirely proper to justify by reference to the bill alone, without proffering an oath. The propriety of taking the objection by demurrer seems to have been very generally recognized. Story, Eq. PL §§ 547, 553, 575, 583, 591, 597, 599; Bray, Disc. p. 318, note; Bray, Disc. p. 325; Cooper, Eq. PI. §§ 190, 191, 202; 6 Enc. PI. & Pr. 742; Fos- ter, Fed. Pr. § 109." Daisley v. Dun, 98 Fed. 497. In New York, a demur- rer on the ground that the discovery prayed might subject the defendants to penalties under the law of the United States, without stating why or wherefore, was overruled. Sharp v. Sharp, 3 Johns. Ch. (N. Y.) 407. See Moyer v. LIvingood, 2 Woodw. Dec. (Pa.) 317. 67 2 Barbour, Ch. Pr. 110; Morgan v. Harris, 2 Brown Ch. 124; Burns V. Hobbs, 29 Me. 273; Deare v. Attorney-General, 1 Younge & C. 197; Waring v. Mackreth, Forrest, 129; Wistar v. McManes, 54 Pa. 318; Brownell v. Curtis, 10 Paige (N. Y.) 210. See, also, Dell v. Hale, 2 Younge & C. Ch. 1. 58 2 Barbour, Ch. Pr. 110; Angell v. Angell, 1 Sim. & S. 83; King V. Homing, 9 Sim. 59; Le Roy v. Veeder, 1 Johns. Cas. (N. Y.) 417. 09 2 Barbour, Ch. Pr. 110; Mitford, Eq. PI. 200. (877) §818 EQUITY PLEADING AND PRACTICE. [Ch. 45 ters against several distinct defendants.*" If a pretense of in- terest by the defendant is alleged in the bill, a demurrer foE want of interest does not lie, — ^the defense must be by plea.*^ A demurrer to the whole of the discovery sought will be over- ruled if the complainant is entitled to any part.®^ The ob jections to a bill which are causes of demurrer to discovery only are thus classified by Lord Kedesdale, which classification it may be useful to insert in this place by way of concluding this branch of the subject: (1) That the case made by the bill is not such in which a court of equity assumes a jurisdiction to compel a discovery; (2) that the complainant has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery; (3) that the defendant has no in- terest in the subject to entitle the complainant to institute a suit against him, even for the purposes of discovery; (4) al- though both the complainant and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the complainant a right to the discovery re- quired by his bill; (5) that the discovery, if obtained, cannot be material; and (6) that the situation of the defendant ren- ders it improper for a court of equity to compel a discovery.^^ § 818. Pleas to bills of discovery. If the objection to a bill of discovery does not appear upon the face of it, the defendant must bring it before the court by 60 2 Barbour, Cli. Pr. Ill; Mitford, Eq. PI. 200. «i 2 Barbour, Ch. Pr. Ill; Mitford, Eq. PI. 185; Plummer v. May, 1 Ves. Sr. 426. 62 Treadwell v. Brown, 44 N. H. 551. It is held that, where a demur- rer to the bill of discovery is overruled, the bill, or so much as remains unanswered, will be taken as confessed, and that the confessions are, both in law and equity, as complete as the confessions could have been had the bill been answered, and every part thereof charged to exist been expressly admitted. See Nancy v. Trammel, 3 Mo. 306; Cooper, Eq. PI. 111-113, 207; Tomkins v. Ashby, 22 Com. Law Rep. 464. 63 Mitford, Eq. PL 185; 2 Barbour, Ch. Pr. 111. See, for demurrers to bills of discovery. Story, Eq. PI. §§ 545-610; Cooper, Eq. PI. 186 et seq.; Mitford, Eq. PI. 183 et seq.; Hare, Disc; Wigram, Disc. (878) Ch. 45] BILLS OF DISCOVERY. § 818 plea. The grounds of objection to discovery which may be raised by plea are nearly the same as those which have just' been mentioned as causes of demurrer. They are: (1) That the complainant's case is not such as entitles a court of equity to assume jurisdiction to compel a discovery in his favor; (2) that the complainant has no interest in the subject, or no in- terest which entitles him to call on the defendant for a dis- covery; (3) that the defendant has no interest in the subject to entitle the complainant to institute a suit against him, even for the purpose of discovery only ; and (4) that the situation of the defendant renders it improper for a court of equity to compel a discovery.®* The situation of a defendant may render it improper for a court of equity to compel a discovery, (1) be- cause the discovery may subject him to pains and penalties; (2) because it will subject him to a forfeiture, or something in the nature of a forfeiture; (3) because it would betray the confidence reposed in him as a counsel, attorney, or arbitrator ; (4) because he is a purchaser for a valuable consideration with- out notice of the complainant's title.®^ To a bill of discovery for the purpose of proceeding at law, a plea of payment of money demanded by the complainant does not lie.®® 64 2 Barbour, Ch. Pr. Ill, 112; Mitford, Eq. PI. 282-284. 65 2 Barbour, Ch. Pr. 112; Mitford, Eq. PI. 284. 66 2 Barbour, Ch. Pr. 112 ; Hindman v. Taylor, 2 Dickens, 651. A plea to a bill of discovery filed in aid of an action at law is bad where it presents a question proper to be raised in the action at law, but presents no reason why the discovery should not be made. Green v. McCarroll, 24 Miss. 427. See, for pleas to bills of discovery. Story, Bq. PI. §§ 816-825; Mitford, Eq. PI. 281 et seq.; 2 Barbour, Ch. Pr. 112, 113; Cooper, Eq. PI. 291 et seq.; Beames, Pleas in Eq. 249 et seq.; Hare, Disc; Wigram, Disc; Gait v. Osbaldeston, 5 Madd. 428; Cottington v. Fletcher, 2 Atk. 156; Hollls v. Whiteing, 1 Vern. 151; Whaley v. Bag- mel, 1 Brown, Pari. Cas. 345; Moore v. Edwards, 4 Ves. 23; Main v. Melbourn, 4 Ves. 720; Stewart v. Nugent, 1 Keen, 201; Roche v. Mor- gell, 2 Schoales & L. 721;, Bond v. Hopkins, 1 Schoales & L. 413; Sut- ton V. Scarborough, 9 Ves. 71; Strafford v. Blakeway, 6 Brown, Pari. Cas. 305; Plummer v. May, 1 Ves. Sr. 426; Claridge v. Hoare, 14 Ves. 59; Plunket v. Penson, 2 Atk. 51. (879) § 819 EQUITY PLEADir^G AND PRACTICE. [Ch. 45 § 819. Answer to bill of discovery. When a defendant has in his power the means of acquiring the information necessary to enable him to make the discovery called for, he is bound to make use of such means, whatever pains or trouble it may cost him.®^ The answer must be full and perfect to all of the material allegations of the bill. A general denial of the matters charged is not sufBcient. There must be an answer to the sifting inquiries upon the general subject; and whenever there are particular and precise charges, they must be answered particularly and precisely.®^ If he has no knowledge of the matters of the bill, that is not sufficient to excuse him from stating his information and belief.^^ He must show his information, if he have any, and express his belief or disbelief founded thereon, — though, if he have no in- formation, he need not express belief.'"' The defendant, in answering, has a right to state all of the circumstances con- nected with the matter about which the discovery is sought, as well those which make for him as against him.^-*^ If the de- fendant in a bill of discovery does not think proper to defend himself from the discovery by demurrer or plea, he has been 67 Beall V. Blake, 10 Ga. 449 ; Green v. Carey, 12 Ga. 601. es Walker v. Walker, 3 Ga. 302, citing Story, Eq. PI. § 852. See Salmon v. Clagett, 3 Bland (Md.) 125; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686. 69 Cooper, Eq. PI. 313; Painter v. Harding, 3 Phila. (Pa.) 144; Nor- ton V. Warner, 3 Bdw. Ch. (N. Y.) 106; Smith v. Lasher, 5 Johns. Ch. (N. Y.) 247. See supra, § 313. 70 Cooper, Eq. PL 313; 1 Harrison, Ch. Pr. 302; Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422; Smith v. Lasher, 5 Johns. Ch. (N. Y.) 247; Painter v. Harding, 3 Phila. (Pa.) 144; Morris v. Parker, 3 Johns. Ch. (N. Y.) 297. 71 Jewett V. Belden, 11 Paige (N. Y.) 618; Chambers v. Warren, 13 111. 318; Glascock v. Hays, 4 Dana (Ky.) 58; Saltmarsh v. Bower, 22 Ala. 228; Price v. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129; Waldron v. Bayard, 1 Phila. (Pa.) 454. But see Hamilton v. Wood, 3 Edw. Ch. (N. Y.) 134. See, also, as to rights of defendant in answering, Dyre v. Sturges, 3 Desaus. (S. C.) 553. (880) Ch. 45] BILLS OF DISCOVERY. § 819 permitted, by answer, to insist that lie is not obliged to make the discovery.''^ But the facts which entitle him to protection from answering must be stated fully in the answer/^ He cannot defeat a full discovery by denying that the evidence will be of assistance to the complainant. It is only when it can be seen that the interrogatories, if answered affirmatively, would not assist the complainant in establishing his suit, that answers can be dispensed with.'^* When the defendant sets up that he is not obliged to answer, the complainant may except to the answer as insufficient, and thereupon it will be determined whether the defendant is obliged to make the discovery.'^^ If he submits to answer, he must answer fully, and he must an- swer all the facts stated in the bill from which he does not dis- tinctly protect himself from answering by either of the other modes of defense.''* It is said that there is no rule preventing an answer from being accompanied by a plea or demurrer.'^'' Where a defendant pleads or demurs to any part of the dis- covery sought by the bill, and answers likewise, if the com- plainant takes exception to the answer before the plea or de- murrer has been argued, he admits the plea or demurrer to be good; otherwise it would be impossible to determine whether it would be sufficient or not.'''® The rule is otherwise where a plea or demurrer is only to the relief, and not to any part of the discovery. The complainant may then except to the answer 72 2 Barbour, Ch. Pr. 113; Mitford, Eq. PI. 307; Slater v. Banwell, 50 Fed. 150. 73 Slater v. Banwell, 50 Fed. 150; Bentley v. Cleaveland, 22 Ala. 814. 7-4 Anderson v. Kissam, 28 Fed. 900. 75 2 Barbour, Ch. Pr. 113. See Bentley v. Cleaveland, 22 Ala. 814; Roussin V. St. Louis Perpetual Ins. Co., 15 Mo. 244. 76 2 Barbour, Cb. Pr. 114; Cooper, Bq. PI. 316; Phillips v. Prevost, 4 Johns. Ch. (N. Y.) 205; Portarlington v. Soulby, 7 Sim. 28; Mazarredo V. Maitland, 3 Madd. 72; Waring v. Suydam, 4 Edw. Ch. (N. Y.) 426; Salmon v. Clagett, 3 Bland (Md.) 125; Hill v. Crary, 7 Ark. 536. 77 2 Barbour, Ch. Pr. 114. A defendant cannot demur to part and an- swer to part of a bill of discovery. 2 Barbour, Ch. Pr. 113; Jones v. Strafford, 3 P. Wms. 79; Abraham v. Dodgson, 2 Atk. 157; Dormer v. Fortescue, 2 Atk. 282. 78 2 Barbour, Ch. Pr. 114. (881) Equity. — 56. §820 EQUITY PLEADING AND PRACTICE. [Ch. 45 before the argument of the plea or demurrer. '^^ Where the bill charges an interest in the defendant, the plea must be supported by an answer; but a plea that the discovery will subject the de- fendant to penalties does not seem to require the support of an answer.*** There is a distinction between the cases in which the defend- ant, by answer, denies the title of the complainant, in respect of which the discovery is sought, and those in which he denies the validity of the ground upon which that title is alleged by the complainant to be founded. Thus, although the defendant, by his answer, denies the title of the complainant, yet in many cases he must make the discovery prayed by the bill, though not material to the complainant's title, and though the com- plainant, if he has no title, can have no benefit from the dis- covery.*^ Where the defendant sets up a title in himself, ap- parently good, and which the complainant must remove to found his own title, the defendant is not generally compelled to make any discovery not material to the trial of the question of title. Where a discovery, however, is in any degree connected with the title, it would seem that the defendant cannot protect him- self by answer from making the discovery.*^ § 820. Effect of answer. The answer of a defendant to a pure bill of discovery, when ■"> 2 Barbour, Ch. Pr. 114. 80 2 Barbour, Ch. Pr. 114; Claridge v. Hoare, 14 Ves. 59; Beames, Pleas in Eq. 256. 812 Barbour, Ch. Pr. 115; Mitford, Bq. PI. 307-310. 82 2 Barbour, Ch. Pr. 115; Mitford, Eq. PI. 311, 312. See, for answers to bills of discovery, Wigram, Disc. (1st Ed.) 85-122, 190, 192-195, 347, 348; Hare, Disc. 247-262, 298-301; Mitford, Eq. PI. 307 et seq.; Cooper, Eq. PL 312 et seq.; Northwestern Bank v. Nelson, 1 Grat. (Va.) 108; Ellsworth V. Curtis, 10 Paige (N. Y.) 105; United States v. McLaughlin, 11 Sawy. 139, 24 Fed. 823; Sitler v. McComas, 66 Md. 135, 6 Atl. 527; Bailey v. Stiles, 3 N. J. Eq. 245; Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686; Trotter v. Bunce, 1 Edw. Ch. (N. Y.) 573; Brown v. Brown, 10 Yerg. (Tenn.) 84; Anderson v. Kissam, 28 Fed. 900; ITtica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210; Agar v. Regent's Canal Co., Coop. 212. See, also, supra, §§ 293, 294, 312-314. (882) Ch. 45] BILLS OF DISCOVERY. | 821 used on tke trial at law, is used as a matter of evidence, the whole of which is to be read as the testimony of a witness, in- cluding not only admissions against the interest of the respond- ent, but all assertions in his favor, subject, however, to be cred- ited or discredited, in whole or in part, according to its own intrinsic weight, or its relative weight in comparison or con- nection with the other evidence in the action at law.^^ When a complainant goes into equity for relief on the ground of dis- covery, the court will give to the answer of the defendant the same effect that would be given it in a court at law, except that the complainant cannot contradict the answer by other evi- dence, as he would thereby prove himself out of court.** S 821. Procedure upon bills of discovery. A case is never brought to a hearing upon a mere bill of dis- covery. When the answer is perfected, the defendant is en- titled to move for costs.*^ Where the answers of all of the defendants to a bill of discovery deny all the allegations of the bill, and make no discovery, the court should proceed no further, and the bill should be dismissed.*® Thus, where a ssFant v. Miller, 17 Grat. (Va.) 187; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129; Cox v. Cox, 2 Port. (Ala.) 533. See Thompson V. Clark, 81 Va. 422; Allen v. McNew, 8 Humph. (Tenn.) 46; Jewett v. Belden, 11 Paige (N. Y.) 618; MassinglU v. Carraway, 13 Smedes & M. (Miss.) 324; Price v. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Nourse v. Gregory, 3 Litt. (Ky.) 378. See supra, §§ 645, 652. 84 Pant T. Miller, 17 Grat. (Va.) 187; Lyons v. Miller, 6 Grat. (Va.) 427, 52 Am. Dec. 129. See Murray v. Johnson, 1 Head (Tenn.) 353; Jones V. Cunningham, 7 W. Va. 707. "The greatest strength of proof attributable to an answer under oath to a bill in equity for discovery Is that it cannot be overcome by a single witness, unaccompanied by some corroborating circumstance. That it has even that strength in a common-law court we are not called upon to decide. It certainly has not conclusive strength. Lyons v. Miller, 6 Grat. (Va.) 438, 52 Am. Dec. 129; 1 Pomeroy, Bq. Jur. § 208." District of Columbia v. Robinson, 180 U. S. 92. See Smith v. Kincaid, 10 Humph. (Tenn.) 73; Spurlock V. Fulks, 1 Swan (Tenn.) 289; Turner v. Miller, 6 Ark. 463. 85 2 Barbour, Ch. Pr. 115; King v. Clark, 3 Paige (N. Y.) 76; People's Nat. Bank v. Kern, 193 Pa. 59, 44 Atl. 331. 86 Philadelphia Fire Ins. Co. v. Central Nat. Bank of Chicago, 1 111. (883) § 822 EQUITY PLEADING AND PRACTICE. [Ch. 45 tenant who keld imder a written lease for a year, and against whom legal proceedings were brought to dispossess him, filed a bill alleging a parol agreement for a second year, and stated that he could make no proof at law of the parol agreement, and prayed a discovery of it, and the answer denied the parol agreement, the bill was dismissed.*^ Where the only ground of equitable jurisdiction is the discovery of facts solely within the knowledge of the defendant, and the defendant, by his answer, discloses no such facts, and the complainant supports his claim by evidence in his own possession, unaided by the confessions of the defendant, the bill should be dismissed, and the complainant permitted to bring his action at law.^® In a bill for discovery and relief, the denial of the discovery is no ground for dismissing the bill. The complainant may make out his case without discovery.*^ Where an injunction is ob- tained against proceeding at law, until an answer is obtained to a bill of discovery, it is a matter of course to dissolve the in- junction as soon as the answer of the defendant is perfected, whether he admits or denies the facts charged in the bill.*" § 822. Costs on bills of discovery. The general rule is that the complainant in a bill of discov- ery, upon obtaining it, pays the defendant his costs.^-' Where App. 344; United States Ins. Co. v. Central Nat. Bank, 7 111. App. 426; Fifield V. Gorton, 15 111. App. 458; Nourse v. Gregory, 3 Litt. (Ky.) 378; Vlele V. Hoag, 24 Vt. 46; Overton v. Searcy, Cooke (Tenn.) 36, 5 Am. Dec. 665. 87 Jones V. Sherwood, 6 N. J. Bq. 210. 88 Russell V. Clark's Ex'rs, 7 Cranch (U. S.) 69. But see Dunn v. Dunn, 8 Ala. 784. 89 Wlstar V. McManes, 54 Pa. 318. See, also. Currier v. Concord R. Corp., 48 N. H. 321; French v. Rainey, 2 Tenn. Ch. 640; Overton v. Searcy, Cooke (Tenn.) 36, 5 Am. Dec. 665. 90 2 Barbour, Ch. Pr. 115; King v. Clark, 3 Paige (N. Y.) 77. See, also, Steele v. Lowry, 6 Ala. 124; Grafton v. Brady, 7 N. J. Eg. 79. It is erroneous to continue the bill of discovery, or to allow a supple- mental and amendatory bill to the original bill for discovery. Yates v. Monroe, 13 111. 212. 912 Barbour, Ch. Pr. 115; Burnet v. Sanders, 4 Johns. Ch. (N. Y.) (884) Ck. 45] BILLS OF DISCOVERY. § 823 a bill is for relief against several defendants, and for discov- ery against only one, he cannot make a motion for his costs until the hearing. The court will not take the labor of ascer- taining whether, under the prayer for general relief, some relief may not be given him.®^ i 823. Cross bill for discovery. As the complainant in the original bill possesses the right to obtain a discovery from the defendant touching the matters set up in his bill, so the defendant may, by cross bill, obtain a discovery from his adversary touching the same matters.^' The cross bill for discovery arose from the settled rule in equity that the complainant in a suit could not be examined as a witness in that suit, and, if his testimony was wanted by the defendant as to any material facts, it must have been ob- tained by a cross bill. The cross bill, therefore, gives a perfect reciprocity of proof to each party, derivable from the answers of each other, and on this account the right to file a cross bill is not confined to cases between private persons, for, if a foreign sovereign brings a bill, the defendant may file a cross bill against him for a discovery of matters material to his defense. The importance of a cross bill for the purpose of discovery 503; McElwee v. Sutton, 1 Hill, Eq. (S. C.) 34. See, also, for question of costs, WrigM v. Dame, 1 Mete. (Mass.) 237; King v. Clark, 3 Paige (N. Y.) 76; Boughton v. Philips, 6 Paige (N. Y.) 334. If tlie defend- ant answer fully, lie is entitled to costs; but where exceptions to the answer are sustained, the defendant must pay the costs upon them. Price V. Tyson, 3 Bland (Md.) 392, 22 Am. Dec. 279; Deas v. Harvey, 2 Barb. Ch. (N. Y.) 448; McCelvy v. Noble, 13 Rich. Law (S. C.) 330. And where the complainant goes to the defendant for the information sought by the bill of discoTery, and asks for such information prior to the filing of the bill, and the defendant refuses to make the disclosure, though it is in his power to do so, costs will be aenied the defendant, even though he answered fully. King v. Clark, 3 Paige (N. Y.) 77; Burnett v. Sanders, 4 Johns. Ch. (N. Y.) 503; Dennis v. Riley, 21 N. H. 50; Harris v. Williams, 10 Paige (N. Y.) 108; McElwee v. Sutton, 1 Hill, Eq. (S. C.) 34. See Weymouth v. Boyer, 1 Ves. Jr. 416; 1 Mad- dock, Ch. Pr. 176. 92 2 Barbour, Ch. Pr. 115; Attorney-General v. Burch, 4 Madd. 178. »3 Indianapolis Gas Co. v. City of Indianapolis, 90 Fed. 196. (885) §824 EQUITY PLEADING AND PRACTICE. [Ch. 45 may be illustrated by a familiar example. It is a general rule tbat, if a defendant wants a discovery of any deed in the hands of the complainant, he must file a cross bill for that pur- pose, although the complainant should state in his bill that the deed is in his custody, and ready to be produced as the court shall direct. The deed may furnish the main grounds of establishing the defense to the original bill.®* § 824. Supplemental bill in nature of bill of discovery. After an original suit is at issue, a complainant may some- times file a supplemental bill in the nature of a bill of dis- covery for the purpose of obtaining evidence in support of the matters put in issue in the original suit, of which evidence he was not apprized at the time of filing his replication ; but that is strictly a bill of discovery in aid of the original suit, and should not pray relief. The complainant obtaining the dis- covery in such a bill pays the defendant's costs, as on other bills for discovery merely. The bill in such cases is in the nature of a supplemental suit for a discovery, rather than of a supplemental bill in the original suit.®^ 94 Story, Eq. PI. § 390; Kidder v. Barr, 35 N. H. 235; Indianapolis Gas Co. V. City of Indianapolis, 90 Fed. 196; Young v. Colt, 2 Blatctif. 373, Fed. Cas. No. 18,155. 95 2 Barbour, Ch. Pr. 61, 116; Dias v. Merle, 4 Paige (N. Y.) 263. (886) CHAPTER XLVI. SUPPLEMENTAL BILLS. § 825. General nature and office. A supplemental bill lies, when there is a defect in the pro- ceedings occurring too late to be remediable by amendm^ent, or where, by an event subsequent to the commencement of the suit, a new interest in the matter in litigation is claimed by an ex- isting party to the suit, or a new party claims, but not by mere operation of law, the interest which was claimed by an exist- ing party. -^ It is merely an addition to the original bill.^ It is a well-settled rule that nothing can be inserted in an original bill by way of amendment which has arisen subsequent to the commencement of the suit, but that the same must be stated in a supplemental bill.^ It may be filed to supply defects in the frame of the original bill, and this may be done either before or after decree, and to aid or impeach the decree, or to put new matter in issue, as a new interest vested in an old party, or an interest devolving upon a new party.* Under the early 12 Barbour, Ch-Pr. 59; Welford, Eq. PI. 188; "Walker v. Hallett, 1 Ala. 379; Jones v. Jones, 3 Atk. 110; Lyster v. Stickney, 12 Fed. 609; Cedar Valley Land & Cattle Co. v. Coburn, 29 Fed. 586; Barringer v. Burke, 21 Ala. 765; Pedrick v. White, 1 Mete. (Mass.) 76; Hoppock v. Gray (N. J. Eq.) 21 Atl. 624; Hasbrouck v. Sbuster, 4 Barb. (N. Y.) 285; Western Min. & Mfg. Co. v. Virginia Cannel Coal Co., 10 W. Va. 250; Kelly V. Galbraith, 87 111. App. 68; Wray v. Hutcliinson, 2 Mylne, & K. 235. 2 Story, Bq. PI. § 332; Mix v. Beacb, 46 111. 311; Caldwell v. First Nat. Bank, 89 111. App. 448; Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697. See Central Trust Co. v. Western C. R. Co., 89 Fed. 24, citing Foster, Fed. Pr. §§ 28, 29; Clarke v. Mathewson, 12 Pet. (U. S.) 120. 8 2 Barbour, Ch. Pr. 60. <2 Barbour, Cb. Pr. 59; Story, Eq. PI. §§ 332, 338; Kennedy v. Bank (887) § 825 EQUITY PLEADING AND PRACTICE. [Ch. 46 chancery practice, supplemental bills were filed where the pro- ceedings were in such a state that the original bill 6ould not be amended for the purpose.^ ISTo amendment was generally allow- able after the parties were at issue upon the points of the original bill, and witnesses had been examined.^ It is proper whenever the imperfection in the original bill arises from the omission of some material fact which existed before the filing of the original bill, but the time has passed in which it could be introduced into the bill by amendment. This may arise either from the impor- tance of the fact not being understood in the preceding stages of the cause, and therefore not being put in issue, or from the fact itself not having come to the knowledge of the party until after the bill was filed. '^ It is also proper in order to bring before the of Georgia, 8 How. (U. S.) 586; O'Hara v. Shepherd, 3 Md. Ch. 306; Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697. sMltford, Eq. PI. 55; 2 Barbour, Ch. Pr. 60-63; Beach, Mod. Eq. Pr. §§ 490-493; Story, Eq. PI. §§ 332, 333. 6 Story, Eq. PI. § 332; Mitford, Eq. PI. 55, 325; Cooper, Eq. PI. 333; Goodwin v. Goodwin, 3 Atk. 370; Jones v. Jones, 3 Atk. 110; Stafford v. Hewlett, 1 Paige (N. Y.) 200. 7 Story, Eq. PI. § 333; Walker v. Hallett, 1 Ala. 379; Rldgeway v. Toram, 2 Md. Ch. 303; Dodge v. Dodge, 29 N. H. 177; Pedrick v. White, 1 Mete. (Mass.) 76. See Colclough v. Evans, 4 Sim, 76. For filing supplemental bills in federal courts, see United States Equity Rules 57, 58. "The new evidence upon which a supplemental bill should be al- lowed to be filed should not be of a mere cumulative or corroborative nature; for if it were admissible, then it would be open to the other side to impeach or control it by other cumulative or corroborative evi- dence on that side, and thus all the mischiefs would be introduced against which the general rule prohibiting the examination of new witnesses after publication of the testimony was intended to guard. The doctrine has been fully recognized as to new evidence upon bills of review." Jenkins v. Eldridge, 3 Story, 299, Fed. Cas. No. 7,267; Gilbert, Forum Rom. 186; Blake v. Foster, 2 Ball & B. 457; Young v. Keighly, 16 Ves. 348; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Norris v. Le Neve, 3 Atk. 26. "'If new evidence has been discov- ered, since the commission was closed, as to the facts stated in the original bill, the proper course would be, not to file a supplemental bill, but to apply to the court for permission to examine the new witnesses.' Story, Eq. PI. § 344, note 1, citing Knight v. Knight, 4 Madd. 1." Atwood v. Shenandoah Valley R. Co., 85 Va. 966, 9 S. B. 748. (888) Ch. 46] SUPPLEMENTAL BILLS. § 825 coiixt some party who is a necessary party to the proceedings, and who has been omitted to be introduced at a stage of the cause in which an amendment for such purpose might have been made.^ A supplemental bill for the purpose of adding new matter or for bringing new parties before the court can also be filed after, as well as before, the decree." The bill, if after a decree, may be either in aid of a decree, that it may be car- ried fully into execution, or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defense made to it, or to bring forward parties before the court; or it may be used to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review. But where a supplemental bill is Drought in aid of a decree, it is merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind or principle; the latter being the province of a supplemental bill in the nature of a bill of review, which can- not be filed without leave of court. ^° In most jurisdictions, 8 Story, Bq. PI. §§ 334, 336; 2 :Barbour, Cb. Pr. 60; Welford, Eq. PI. 191; Jones v. Jones, 3 Atk. 110. See supra, § 383. 9 2 Barbour, Ch. Pr. 62; Woodward v. Woodward, 1 Dickens, 33; Boeve v. Sklpwith, 1 Eq. Cas. Abr. 80; Secor v. Singleton, 41 Fed. 725. See Asbuelot R. Co. v. Cbesblre R. Co., 59 N. H. 409. Tbe fact tbat complainant desires to drop out of the case some of the parties de- fendant to the original bill does not of Itself give him tbe right to proceed by supplemental bill. Mosgrove v. Kountze, 14 Fed. 315. 10 Story, Eq. PI. § 338; Mltford, Eq. PI. 62; Hodson v. Ball, 1 Phil- lips, 177. "Leave is never given to file a supplemental bill, in order to admit new evidence, after an interlocutory decree, where the party might, by due diligence, have introduced it originally into the cause, or had full and ample means of knowledge of it within his reach. It matters not that he, or his solicitor or counsel, did not understand the true value or importance of it, if they knew the facts, or had ample means of knowledge, and, a fortiori, if, by the very nature and character of the matters put in issue, they were bound to search, and to make full and perfect inquiries. The authorities are very numer- ous and pointed to this effect." Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267; Young v. Keighly, 16 Ves. 348; Norris v. Le Neve, 3 Atk. 26; Whitelock v. Baker, 13 Ves. 511; Barrington v. O'Brien, 2 Ball & B. 140; Blake v. Poster, 2 Ball & B. 457; Wiser v. Blachly, 2 (889) §825 EQUITY PLEADING AND PRACTICE. [Ch. 46 liberal statutes providing for amendments at any stage of the cause exist, and therefore supplemental bills are no longer needed for that purpose in such jurisdictions, for, where the- same end can be obtained by amendment, the court will not permit a supplemental bill to be filed.^^ Matter which existed at the time the original bill was filed should be brought in by amendment, if the cause is in a stage at which an amendment is allowable.12 A supplemental bill will not be permitted to be filed whenever the same end may be obtained by an amend- Joliiis. Ch. (N. Y.) 488; Livingston v. Hubbs, 3 Jobns. Ch. (N. Y.) 124; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953. "The evidence entitling the party to ask leave of the court to file a supplemental bill should not only be true, but should be material, in an emphatic sense; that is, it should be such new matter as must, if unanswered, in "point of fact, either clearly entitle the party to a reversal of the decree, or raise a case of so much nicety and difllculty as to be a fit subject of judgment in the cause. In other words, it should furnish a just and solid founda- tion upon which the court may properly repose its judgment. It is not sufficient that it is such as might be argued, with more or less effect, by way of a presumption against or in favor of former testi- mony; but it should go further, and demonstrate that, consistently with it, the decree ought not to stand." Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267; Ord v. Noel, 6 Madd. 127; Norris v. Le Neve, 3 Atk. 26. "See Hope v. Brinckerhoff, 4 Edw. Ch. (N. Y.) 660; Nevada Nickel Syndicate v. National Nickel Co., 86 Fed. 486; Copen v. Flesher, 1 Bond, 440, Fed. Cas. No. 3,211. See 2 Barbour, Ch. Pr. 60-63. 12 2 Barbour, Ch. Pr. 60; Burke v. Smith, 15 111. 158; Bowie v. Min- ter, 2 Ala. 406; Swatzel v. Arnold, 1 Woolw. 383, Fed. Cas. No. 13,682; Henry v. Travelers' Ins. Co., 45 Fed. 299; Stafford v. Howlett, 1 Paige (N. Y.) 200; Murray v. King, 40 N. C. 223; Fulton Bank v. New York & Sharon Canal Co., 4 Paige (N. Y.) 127; Commercial Assurance Co. v. New Jersey Rubber Co., 61 N. J. Bq. 446, 49 Atl. 155; Barriclo v. Tren- ton Mut. Life & Fire Ins. Co., 13 |r. J. Eq. 154. In the early decisions, the rule requiring matter arising after suit brought to be introduced by supplemental bill was adhered to with great strictness. In later practice it was relaxed as applied to accountings, so as to permit ac- countings to cover periods pendente lite, and down to the time of the decree, and has also been applied to suits for the foreclosure of mort- gages. Kelly V. Galbraith, 87 111. App. 68, 186 111. 593, 58 N. B. 431; Barfleld v. Kelly, 4 Russ. 355. See 2 Barbour, Ch. Pr. 63; Swan v. Swan, 8 Price, 518. (890) Ch.. 46] SUPPLEMENTAL BILLS. § 825 ment.-^' The subsequent event which will authorize the filing of a supplemental bill must not only be relevant, but material, and of such a nature that the relief sought in respect thereof cannot be obtained under the original bill.-^* New matter merely corroborative or contradictory of evidence on the points in issue is insufficient.^^ A supplemental bill may also be brought, not only to insist upon the relief already prayed for in the original bill, but upon other relief different from that which was prayed for by the original bill, where facts which have since occurred may require it.-'® To entitle the complain- ant to file a supplemental bill, and thereby to obtain the benefit of the former proceedings, it must be in respect to the same title in the same person as stated in the original bill.^^ Thus, if a person should file an original bill as heir at law of the mortgagor to redeem, and it should turn out, upon an issue and hearing of the cause, that he is not the heir at law, and he afterwards purchases the title of the true heir at law, he can- not file a supplemental bill to have the benefit of the former proceedings, for he claims by a different title from that as- serted in the original bill. His true course would be to file an original bill.^* A supplemental bill is in effect but an 13 story, Eq. PI. § 333; 2 Barbour, Ch. Pr. 60. A supplemental bill Is unnecessary where an infant complainant becomes of age pending suit, if such fact does not change his interest in the suit. Campbell v. Bowne, 5 Paige (N. Y.) 34. "2 Barbour, Ch. Pr. 64; Story, Eq. PI. § 337; Milner v. Hlarewood, 17 Ves. 144; Adams v. Dowding, 2 Madd. 53; Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267; Veazie v. Williams, 3 Story, 54, Fed. Cas. No. 16,906. 15 Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267; Barriclo v. Trenton Mut. Life & Fire Ins. Co., 13 N. J. Eq. 154. IS Story, Eq. PI. § 336, quoted with approval in Miller v. Cook, 135 111. 205, 25 N. E. 756; Pinkus v. Peters, 5 Beav. 253; Malcolm v. Scott, 3 Hare, 39. IT Story, Eq. PI. § 339, cited with approval in Miller v. Cook, 135 111. 205, 25 N. E. 756; Tonkin v. Lethbridge, Coop. 43; Rylands v. Latouche, 2 Bligh, 586; Pilkington v. Wignall, 2 Madd. 240; Oldham v. Bboral, 1 Coop. t. Brough. 27. IS Story, Eq. PI. § 339; Pilkington v. Wignall, 2 Madd. 240. (891) § 826 EQUITY PLEADING AND PRACTICE. [Ch. 46 amendment by which new matter which has transpired since the filing of the original bill is brought into the case, and forms a part of and is tried with the original case.-'® The original and supplemental bills make, in efEect, but one pleading, and should be consistent.^" A supplemental bill which is in ir- reconcilable conflict with the original bill will be dismissed at the hearing, though filed by leave of court.^^ 5 826. Supplemental bill to perfect inchoate right. Matters which have occurred since the original bill was filed, and which are material to perfect the complainant's case, may also be introduced by supplemental bill. Thus, where a com- plainant has an inchoate right at the time of filing his original bill, but which merely requires a formal act to complete it, which is not performed till afterwards, such formal act may be brought before the court by supplemental bill, — as in the instance of an executor or administrator filing a bill before probate or administration taken out. In such case, the fact of the probate or administration having been granted may be in- troduced by amendment; but if the record is not in a state to 19 Mix v. Beach, 46 111. 314. 20 Straughan v. Hallwood, 30 W. Va. 274, 4 S. E. 394, 8 Am. St. Rep. 29; Gillett v. Hall, 13 Conn. 426; Leonard v. Cook (N. J. Eq.) 21 Atl. 47; Potier v. Barclay, 15 Ala. 439; Smith v. St. Louis Mut. Life Ins. Co., 3 Tenn. Ch. 151; Story. Eq. PI. § 332. "It is a mistake to say the new bill is an original bill as to the new complainants, and an amended and supplemental bill as to the old complainants. An amended and supplemental bill which merely introduces supplemental matter and new parties to sustain the relief sought incorporates itself with the previous bill, and the whole becomes one bill for all the ordinary pur- poses of litigation. Wilkinson v. Fowkes, 9 Hare, 198, 594; Bradley v. Dibbrell, 3 Heisk. (Tenn.) 522. Whether the new and old complain- ants are properly joined turns, not upon the original or supplemental character of the particular pleadings, but upon their connection with the subject-matter of litigation, and with each other. French v. Hay, 22 Wall. (U. S.) 246; Catton v. Carlisle, 5 Madd. 427; Hurd v. Everett, 1 Paige (N. Y.) 124; Wilson v. Beadle, 2 Head (Tenn.) 512." Smith V. St. Louis Mut. Life Ins. Co., 3 Tenn. Ch. 151. 21 Straughan v. Hallwood, 30 W. Va. 274, 4 S. E. 394, 8 Am. St. Rep. 29. (892) Ch. 46] SUPPLEMENTAL BILLS. § 827 admit of amendment, it may be introduced as well by supple- mental bill. So, where an original bill was filed by a judg- ment creditor to reacb the property of the defendant, after the return of an execution unsatisfied, it was held that a supple- mental bill might be filed to reach subsequently acquired prop- erty to satisfy the same debt. But in a similar case, where, after a creditors' bill had been filed, the complainant obtained a second judgment, and issued an execution thereon, and, without waiting for a return thereof, filed a supplemental bill, it was decided that such bill could not be sustained.^^ i 827. Original bill showing no ground for relief. Where an original bill shows no grounds for relief, it cannot be aided by a supplemental bill setting up matters that have arisen since the filing of the original bill.^* If the original bill is wholly defective, and there is no ground for proceeding upon it, it cannot be sustained by filing a supplemental bill founded upon matters which have subsequently taken place ; but if the original bill is sufficient for one kind of relief, and facts afterwards occur which entitle the complainant to other and more extensive relief, he may have such relief by setting forth the new matter in a supplemental bill.^* A supplemental bill, 22 2 Barbour, Ch. Pr. 61. See, also, supra, §§ 17, 385. 23 Fahs V. Roberts, 54 111. 195, citing Story, Eq. PI. § 339 ; Hughes v. Carne, 135 111. 519, 26 N. E. 517; Putney v. Whltmlre, 66 Fed. 385; New York Security & Trust Co. v. Lincoln St. Ry. Co., 74 Fed. 67; Winn v. Albert, 2 Md. Ch. 42; Brown v. Bank of Mississippi, 31 Miss. 454; Edgar v. Clevenger, 3 N. J. Eq. 258; Candler v. Pettit, 1 Paige (N. Y.) 168, 19 Am. Dec. 399; Neubert v. Massman, 37 Fla. 91, 19 So. 625; Birmingham v. Lesan, 77 Me. 494, 1 Atl. 151; Straughan v. Hall- wood, 30 W. Va. 274, 4 S. E. 394; Candler v. Pettit, 1 Paige (N. Y.) 168. This rule has no application when the amended and supplemen- tal bill may be treated as an original bill, as when it seeks relief not sought in the prior bill, or introduces a new cause of action. Hughes Y. Carne, 135 111. 519, 26 N. E. 517. 24 Miller v. Cook, 135 111. 190, 25 N. E. 756, citing Candler v. Pettit, 1 Paige (N. Y.) 168; Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. Gas. (Pa.) 180; Ramey v. Green, 18 Ala. 771. On a supplemental bill, no relief can be had upon a cause of action which did not exist when (893) §828 EQUITY PLEADING AND PRACTICE. [Ch. 46 after a decree, must not seek to vary the principles of the decree, but, taking that as a basis, seek merely to supply any omissions there may be in it, or in the proceedings which lead to it, so as to enable the court to give full effect to its decision.^® § 827a. Must be germane to original bill. The supplemental bill must be germane to the original bill.^* § 828. Change of interest. Where, subsequently to the filing of an original bill,, some event happens which, without abating the suit, gives an interest in the matter in dispute to a person not a party to the bill, or occasions alterations in the interest of any of the parties, the defect may be supplied by a supplemental bill.^'^ If a com- plainant suing in his own right makes such an alienation of his property as to give the alienee an interest in the subject-matter of the suit, but not at the same time to deprive himself of all right in the question, he must bring the alienee before the court by supplemental bill, or the alienee may himself file a supple- mental bill "" against the original complainant and the other parties to the suit to have the benefit of the proceedings.^* If the original bill was filed. Heffron v. Knickerbocker, 57 111. App. 340, citing 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1515, notes. 25 0'Hara v. Shepherd, 3 Md. Ch. 306; Caldwell v. First Nat. Bank, 89 111. App. 448; Ramey v. Green, 18 Ala. 771. 26 Miller v. Cook, 135 111. 190, 25 N. E. 756; Dickson v. Poindexter, Freem. Ch. (Miss.) 721; Minnesota Co. v. St. Paul Co., 6 Wall. (U. S.) 742. 27 2 Barbour, Ch. Pr. 63; Story, Eq. PI. § 336; Jones v. Jones, 3 Atk. 217; Groves v. Clarke, 1 Keen, 132; Murray v. Elibank, 10 Ves. 84; Mole v. Smith, 1 Jac. & W. 665; Bowie v. Minter, 2 Ala. 406. See Atwood V. Shenandoah Valley R. Co., 85 Va. 966, 9 S. E. 748; Copen V. Flesher, 1 Bond, 440, Fed. Cas. No. 3,211; Fisher v. Holde , 84 Mich. 494, 47 N. W. 1063; Dow v. Jewell, 18 N. H. 340, 45 Am. Dec. 371; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98; Gove v. Lyford, 44 N. H. 525; Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; Pue v. Pue, 4 Md. Ch. 386; North American Coal Co. v. Dyett, 2 Edw. Ch. (N. Y.) 115; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. 28 2 Barbour, Ch. Pr. 64, 65; Binks v. Blnks, 2 Bligh, 593; Lunt V. Stephens, 75 111. 507. (894) Ch. 46] SUPPLEMENTAL BILLS. § 828 a sole complainant, suing in his own right, is deprived of his whole interest in the matters in question by an event subsequent to the institution of the suit, as in the case of a bankrupt or insolvent debtor whose whole property is transferred to as- signees, or in case such a complainant assigns his whole in- terest to another, the complainant being no longer able to prose- cute for want of interest, and his assignee claiming by a title which may be litigated, the benefit of the proceedings cannot be obtained by a supplemental bill, but must be sought by an original bill in the nature of a supplemental bill ; but this rule applies only to cases in which the complainant has become en- titled to the interest of the original complainant by a separate, independent title. It does not apply where the new party ■comes in by the same title as the original complainant.^* If the interest of a complainant suing in autre droit entirely de- termines by death or otherwise, and some other person there- upon becomes entitled to the same property under the same title, — as in case of an executor or administrator upon the determination of an administration durante minori aetate, or pendente lite, — the suit may be likewise added to or continued by supplemental bill.^° Where there is a transfer of interest pendente lite, a supplemental bill may be filed by or against the purchasers.^^ One not a party to a suit in equity, claiming an interest therein, has no right to interfere with the proceedings without filing a supplemental bill to make himself a party.^^ 29Mitford, Eq. PI. 65; 2 Barbour, Ch. Pr. 66; Lloyd v. Jolines, 9 Ves. .37; Walter Baker & Co. v. Baker, 89 Fed. 673; Ross v. City of Ft. Wayne, 24 U. S. App. 113, 63 Fed. 466; Root v. Woolworth, 150 U. S. 401; Curtis Davis & Co. v. Smith, 105 Fed. 949. See Bowie v. Minter, 2 Ala. 406. 30 2 Barbour, Cb. Pr. 65; Story, Eq. PI. § 340; Mitford, Eq. PI. 64. .See Toulmin v. Hamilton, 7 Ala. 362. 31 Hoxie V. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802. 32 Ball V. Tunnard, 6 Madd. 275; Watt v. Crawford, 11 Paige (N. Y.) 470; Greenwich Bank v. Loomis, 2 Sandf. Ch. (N. Y.) 70; Foster v. Deacon, 6 Madd. 59; Bozon v. Bolland, 1 Russ. & M. 69. If a person pendente lite takes an assignment of one of the parties to a suit, he ■may, if he pleases, make himself a party to the suit by supplemental (895) §828 EQUITY PLEADING AND PRACTICE. [Ch. 46 If there has been no decree, the suit may proceed after the sup- plemental bill has been filed in the same manner as if the orig- inal complainant had continued such, except that the defend- ants must answer the supplemental bill, and either admit or put in issue the title of the new complainant; but if a decree has been obtained before the event on which such supplemental bill becomes necessary, although the decree be only a decree nisi, there must be a decree on the supplemental bill declaring that the complainant in that bill is entitled to stand in the place of the complainant in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree and take the steps necessary to render it effectual.^* It is to be observed that a voluntary alienation pendente lite is not permitted to affect the rights of the other parties if the suit proceeds without disclosure of the fact, except as the alien- ation may disable the party from performing the decree of the court, as in the case of an assignment by a mortgagee of hia interest in the mortgage, pending a suit to redeem, in which case the assignee must be brought before the court by a supplemental bill, but he cannot, by petition, pray to be admitted to take part as a party defendant. All that the court will do is to make an order that the assignor shall not take the property out of the court without no- tice. Hazleton Tripod-Boiler Co. v. Citizens' St. Ry. Co., 72 Fed. 326. 33 Story, Eq. PI. § 340, citing Mitford, Eg. PI. 64, 65; Brown v. Mar- tin, 3 Atk. 218. "With respect to the right to file a supplemental bill after final decree, it may be said that the rule is the same as in case of bills of revivor. Such bills, it seems, may be filed as well after a final decree as before, if a person who has succeeded to the interest of one of the original parties to the suit, in such manner as to entitle him to the full benefit of the decree, finds it necessary to invoke fur- ther action on the part of the court to obtain such benefit. Indeed, a person entitled to the benefit of a decree by acquiring an interest in the subject-matter of the controversy subsequent to the decree is not, as it seems, entitled to invoke the aid of the court or take further action until he has made himself a party by supplemental bill, and has brought in the representatives or successors in interest of other original parties, plaintiff or defendant. Daniell, Ch. PI. & Pr. (5th Ed.) 1525-1537; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287; Van Hook V. Throckmorton, 8 Paige (N. Y.) 33; Binks v. Binks, 2 Bligh, 593, 594; Owings' Case, 1 Bland (Md.) 409." Secor v. Singleton, 41 Fed. 725. (896) Ch. 46] SUPPLEMENTAL BILLS. § 829 bill. It sometimes happens, however, that, pending a suit, an alienation by some of the parties takes place without the knowl- edge of the parties conducting the suit, or without their think- ing it necessary to bring the alienee before the court. In such case, unless the alienee can be protected by the ordinary course of applying for an order that the alienor may not take the fund he is entitled to in the suit out of court, without notice to him, he (the alienee) may make himself a party to the suit by supplemental bill against the other parties.^* If, by any event, the whole interest of a defendant is entirely determined, and the property has become vested in another by a title not derived from the former party, as in case of succession to a bishopric, the benefit of the suit against the person becoming entitled by the event described must also be obtained by original bill in the nature of a supplemental bill, though if the defendant whose interest is thus determined is not the sole defendant, the new bill is supplemental as to the rest of the suit, and is so termed and considered, but if the interest of a defendant is not determined, and only becomes vested in another by an event subsequent to the institution of a suit, as in the case of aliena- tion by deed or devise, or by bankruptcy or insolvency, the defect in the suit may be supplied by supplemental bill, whether the suit is become defective merely, or abated as well as defective.^® But the distinction is constantly to be borne in mind between cases of voluntary alienation and cases of invol- untary alienation, as by the insolvency or bankruptcy of the de- fendant. In the latter cases, the assignee must be made a party; in the former he may or may not, at the election of the complainant.^* § 829. Supplemental bill as defense to cross bills, and in avoid- ance of plea. With respect to a matter of defense which arises after the 3*2 Barbour, Ch. Pr. 65; Foster v. Deacon, Mad. & Geld. 59. 35 2 Barbour, Ch. Pr. 66; Story, Eq. PI. § 342; Mitford, Bq. PI. 68; Sedgwick v. Cleveland, 7 Paige (N. Y.) 290. 36 Story, Eq. PI. § 342; Sedgwick v. Cleveland, 7 Paige (N. Y.) 290. (897) Equity. — 57. §830 EQUITY PLEADING AND PRACTICE. [Ch. 46 cause is at issue, the defendant cannot avail himself of the de- fense by plea or answer, but must make the same the subject of a cross bill; and so where the complainant in a bill would assert such matter of defense to a cross bill, it is held that the proper mode is by a supplemental bill.^'^ § 830. Parties to supplemental bills. Where the purpose of a supplemental bill is to bring before the court any new matter arising since the filing of the original bill, the defendants to the original bill ought to be made parties to the supplemental bill.^* But, in general, if new parties are brought before the court upon a supplemental bill, the original defendants need not be made parties to the supplemental bill unless they have an interest in the supplemental matter, or their interests require that the new defendant should be made a party to the suit.^^ A mere formal party to the original bill, whose rights or interests are not affected by the new mat- ter charged in the supplemental bill, need not be made a party to it.*" Where a person acquires the interest of a party in the 3T Jenkins v. International Bank, 111 111. 462. It is also held that matters in avoidance of a plea arising since the filing of the bill should be presented by supplemental bill. Chouteau v. Rice, 1 Minn. 106 (Gil. 83), saying: "The prior matter was indispensable for the explana- tion of that which followed. It is not because it was not discovered before the original bill was filed that it is properly stated by way of supplement, but because It could not possibly be used for the purpose for which it is brought forward till afterwards. Story, Eq. PI. § 335; 1 Hoffman, Ch. Pr. 42." See supra, § 385. 38 2 Barbour, Ch. Pr. 68; Jones v. Jones, 3 Atk. 217; Farmers' Loan & Trust Co. V. Seymour, 9 Paige (N. Y.) 538. 39 Story, Eq. PI. §§ 334, 343; Mitford, Eq. PI. 76; Bignall v. Atkins, 6 Madd. 369; Jones v. Howells, 2 Hare, 342; Parker v. Parker, 9 Beav. 144. See, for full consideration of parties to supplemental bills, Wil- kinson V. Fowkes, 9 Hare, 193. 40 Mitford, Eq. PI. 76; Brown v. Martin, 3 Atk. 217; Greenwood v. Atkinson, 5 Sim. 419; Bignall v. Atkins, 6 Madd. 369; Allen v. Taylor, 3 N. J. Eq. 435, 29 Am. Dec. 721; Ensworth v. Lambert, 4 Johns. Ch. (N. Y.) 605; Calwell v. Boyer, 8 Gill & J. (Md.) 136. If the supple- mental bill has been rendered necessary by the alteration or acquisi- tion of interest happening to a defendant, or if a person comes into esse (898) Ch. 46] SUPPLEMENTAL BILLS. § 830 suit pendente lite, and thereupon files a supplemental bill, lie must make all the other parties to the original bill, whether complainants or defendants, parties to his supplemental bill.** Where one of several co-complainants assigns his interest to a stranger, and the remaining complainants file a supplemental bill against the assignee, they must also make the other defend- ants to the original bill parties to the supplemental bill.*^ A new party representing the interest of a former party who comes before the court by a supplemental bill, whether filed by himself or by the complainant, stands in the same plight and condition as the former party, and is bound by his acts.*^ An objection to a supplemental bill, filed before hearing the original bill, for want of parties, should be taken by plea or demurrer be- fore the cause comes on to be heard. It will be too late to make the objection at the hearing.** It is said that a supplemental bill making new parties is as to them a new suit, and is consid- ered as being commenced when the supplemental bill is filed.*^ Even where the defendant may file a supplemental bill, prefer- ence will be given to the application of the complainant to file his supplemental bill.*® who is necessary to be made a defendant, the supplemental bill may be filed by the complainant in the original suit against such person alone, and it may pray a decree upon the particular supplemental matter al- leged against that person only, unless, as Is frequently the case, the interest of the other defendants may be affected by that decree, in which case such other defendants must be made parties. 2 Barbour, Ch. Pr. 68; Bignall v. Atkins, 6 Madd. 369. See, also. Blunt v. Hay, 4 Sandf. Ch. (N. Y.) 362. "2 Barbour, Ch. Pr. 69. *2 2 Barbour, Ch. Pr. 69; Feary v. Stephenson, 1 Beav. 42. *3 2 Barbour, Ch. Pr. 69; Mitford, Eq. PI. 68; Story, Eq. PI. § 342; Anonymous, 1 Atk. 88; Whitcomb v. Minchin, 5 Madd. 91. ■a 2 Barbour, Ch. Pr. 68; Jones v. Jones, 3 Atk. 217. A supplemental bill in the federal courts may be maintained without regard to the citizenship of the parties. Miller v. Rogers, 29 Fed. 401. <5 Morgan v. Morgan, 10 Ga. 297. *6Carow V. Mo watt, 1 Edw. Ch. (N. Y.) 9; Chester v. Life Ass'n of America, 4 Fed. 489. (899) §831 EQUITY PLEADING AND PRACTICE. [Ch. 46 S 831. Frame of the supplemental bill. A supplemental bill must state the original bill, and tbe pro- ceedings thereon, and if it is occasioned by an event subsequent to the original bill, it must state that event, and the consequent alteration with respect to the parties.*'' The extent to which the original bill and the proceedings thereon should be re- stated has given rise to some dispute.** It is said that where the original bill has been properly filed against all necessary par- ties, but, in consequence of the transmission of the interest of one of those parties to another, it becomes necessary to file a supplemental bill against the assignee to bring him before the court, it is unnecessary to restate the original bill; and that it may be sufficient to state merely the prayer of the original bill, or, if the cause has been heard, the decree; and that even then a short statement of the original case by way of inducement for the purpose of showing that the complainant has a title will be unobjectionable.*^ Where, however, the object of the sup- plemental bill is not to continue the suit against the person in whom the interest of a party originally before the court has become vested, but to bring before the court an entirely new 47 2 Barbour, Ch. Pr. 70; Story, Eq. PI. § 343; Vigers v. Audley, 9 Sim. 72; Nevada Nickel Syndicate v. National Nickel Co., 86 Fed. 486. United States Equity Rule 58 provides that it shall not be necessary to set forth any of the statements in the original suit, unless the circum- stances of the case require it. *8 2 Barbour, Ch. Pr. 70 ; Onge v. Truelock, 2 Moll. 31. 49 2 Barbour, Ch. Pr. 70. "There is a class of supplemental bills which operate merely as an amendment of the original bill, designed to remedy some defect in its structure by stating matter that ought to have been stated before, or by bringing in a party that ought to have been made a party before, in which case the prayer should be that the new party, if a defendant, should answer the original bill. In neither case can it be necessary, in the supplemental bill, to restate the matter of the original bill; for, even as to the new defendant, he becomes to all intents and purposes a party to the original bill, and may make answer and put in issue its allegations as if originally made a party. This, in truth, is but another form of amending the original bill after it has passed the stage when amendments are ordinarily made in the usual mode, and the effect is substantially the same." Chase v. Searles, 45 N. H. 511. (900) Ch. 46] SUPPLEMENTAL BILLS. § 831 party, who either was interested at the time the original bill was filed, or has become so under a new title not derived from a former party, as in the case of a necessary party omitted and subsequently brought before the court by supplemental bill, or a new party coming into esse after the original bill filed, the course is different. There the supplemental bill is in fact an original bill as against the new defendant, and must state enough of the case to put the title of the complainant to relief against such new defendant in issue.^" The propriety of in- troducing a restatement of the case from the original bill into the supplemental bill must depend upon the question of whether the object of the supplemental bill is to state the mere fact of a bill having been filed, or to put in issue any of the circumstances and facts stated and charged in it. If the former is the object, the mere statement that the complainant had filed a bill which prayed such and such relief will be sufficient, or, if the drafts- man should not think this sufficient, he may introduce a short recital, taking care that, in reciting the bill or any former pro- ceedings, he does it in the shortest manner possible. If the lat- ter be the object in view, the facts intended to be stated may be set out in the supplemental bill, either by way of original state- ment, or as a restatement of the facts in the original bill, with an averment of their truth.^^ The mere statement of the for- mer proceedings has been held sufficient to put the facts of the case in issue with regard to a defendant not a party to the orig- inal bill coming in upon a new title.^^ If the supplemental bill is occasioned by an event subsequent to the original bill, it 50 2 Barbour, Ch. Pr. 70, 71; Baldwin v. Mackown, 3 Atk. 817; Lloyd V. Johnes, 9 Ves. 37. 612 Barbour, Ch. Pr. 71; Chase v. Searles, 45 N. H. 511; Edgar v. Clevenger, 3 N. J. Eq. 464. In Vigers v. Audley, 9 Sim. 72, it was held that, even where a supplemental bill is filed against a new defendant, it is not necessary to state in it all the circumstances of the case at length. All that is requisite is that the complainant should state so much of the case as shows that he has an equity against such de- fendant. Bee, also. Story, Eq.' PI. § 343. S2 2 Barbour, Ch. Pr. 71; Lloyd v. Johnes, 9 Ves. 37. (901) §831 EQUITY PLEADING AND PRACTICE. [Ch. 46 must state that event, and the consequent alteration with re- spect to the parties, and, except in certain cases, must pray that all the defendants may appear and answer to the charges it con- tains.^* A supplemental bill to perpetuate testimony upon the discovery of any new facts after filing the original biU must state what such new material facts are.*** A party is permitted to file a supplemental hill for the purpose of intro- ducing matters which have arisen subsequent to the filing of the original bill. The court will also give the complainant per- mission to introduce other matters into the supplemental bill which might have been incorporated in the original bill by amendment.®^ A supplemental bill generally calls upon the defendant to answer the supplemental matter only. If, how- ever, it is occasioned by the transmission of the interest of a defendant who has not answered the original bill, and it is nec- essary to have a discovery from the new defendant of the mat- ters in the original bill, it may pray that the defendant may answer the original bill, and, in such case, the defendant will be bound to answer the original as well as the supplemental bill.'* Where a defendant dies before service of the subpoena, or ap- pearance, so that there is no original suit in court as against him, in consequence of which it is necessary to file a bill which, as against the person who represents the interest of the com- plainant, is an original bill in the nature of a supplemental bill, the new bill may pray that the defendant may answer the orig- inal bill at the same time that he answers the supplemental matter.'^ In other respects, the prayer of a supplemental bill 53 2 Barbour, Ch. Pr. 71. 5*2 Barbour, Cb. Pr. 72; Story, Eq. PI. § 344; Knight v. Knight, 4 Madd. 1; Attorney General v. Fishmongers of City of London, 4 Mylne & C. 1. 55 2 Barbour, Ch. Pr. 72; Stafford v. Howlett, 1 Paige (N. Y.) 200. See Graves v. Niles, Har. (Mich.) 332. 56 2 Barbour, Ch. Pr. 72; Vigers v. Audley, 9 Sim. 72. 67 2 Barbour, Ch. Pr. 73; Asbee v. Shipley, 6 Madd. 296. "The rule on this subject is thus laid down in Vigers v. Audley [9 Sim. 408]: 'Where a bill of revivor and supplement is filed against a person who represents a defendant to the original bill, and the bill of revivor and (902) Ch. 46] SUPPLEMENTAL BILLS. g 832 must be adapted to the object for which it is exhibited. It con- cludes with praying the process of the court in the usual form, where process is necessary.^® A supplemental bill must be signed by counsel."^ § 832. Form of supplemental bill (praying injunction) . [Title of court and cause, and address to the court.] Humbly complaining, shows unto your honors your orator J. K., of [etc.] : That in or as of term, , your orator exhibited his original bill of complaint in this honorable court against H. B. S., and which said bill has been amended by order of this honorable court, thereby praying that the said defendant might be decreed specif- ically to perform his agreement with your orator touching the lease of the farm and premises in the said bill mentioned, and to grant your orator a lease thereof for years, commencing from the expira- tion of his former lease, at the yearly rent of ? , your orator be- ing willing and ready to do and perform everything on his part required to be done and performed in pursuance of the said agreement. And your orator shows that the said defendant appeared and put in his answer to the said original bill, as by the said bill and answer now remaining as of record in this honorable court, reference being there- unto had, will appear. And your orator further shows, by way of sup- plement, that, since the filing of the said original bill, the said de- fendant has caused an action of ejectment to be commenced in the court for the purpose of turning your orator out of the said farm and premises, and the said action is still depending in the said court. And your orator being advised that the said defendant cannot support such action, and that your orator is entitled to a specific per- formance of the said agreement as prayed by his said amended bill, supplement prays that the representative of the deceased defendant may answer both bills, he is bound to do so, although the subpoena taken out is one that reauires him to answer the bill of revivor and supplement only, and the answer in such a case is headed as the an- swer of that defendant to the bill of revivor and supplement, and also to the original bill. Although the rules above stated were laid down in a case in which the bill was a bill of revivor, as well as of sup- plement, they will apply equally to supplemental bills occasioned by the death of a defendant whose interest has become vested in another by a title which will not admit of a bill of revivor merely, or where a defendant becomes bankrupt or insolvent after appearance, but be- fore answer, and a supplemental bill is required to bring his assignees before the court." 2 Barbour, Ch. Pr. 73. 5s 2 Barbour, Ch. Pr. 73. 59 2 Barbour, Ch. Pr. 73. (903) §833 EQUITY PLEADING AND PEACTICE. [Ch. 46 lie has, by himself and his agents, several times applied to and re- quested the said defendant to desist from proceeding in. the said ac- tion, and he was in hopes that he would have complied with such fair and reasonable requests, as in justice and equity he ought to have done. But now so it is, may it please your honors, that the said H. B. S. refuses to comply with your orator's said requests, and in- sists upon proceeding in his said action, and to turn your orator out of possession of said farm and lands, to the manifest wrong and injury of your orator in the premises. To the end, therefore, that the said defendant may, if he can, show why your orator should not have the relief hereby prayed, and may, upon his corporal oath, and according to the best and utmost of his knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories here- inafter numbered and set forth, that is to say [here Insert the in- terrogatories to be answered by defendant], and the said defendant may be restrained by the injunction of this honorable court from pro- ceeding in the said action, and from commencing any other action or proceeding at law for the purpose of turning your orator out of posses- sion of the said farm and lands, and that your orator may have such other and further relief in the premises as the nature of his case shall require, and to your honors shall seem meet: May it please your honors to grant unto your orator, not only the most gracious writ or writs of injunction of the state of . issu- ing out of and under the seal of this honorable court, to be directed to the said H. B. S., to restrain him from proceeding in the said action and from commencing any other action or proceeding at law for the purpose of turning your orator out of the said farms and lands, but also the most gracious writ of subpoena of the said state of , to be directed to the said H. B. S., and the rest of his confederates, when discovered, thereby commanding them and every of them, at a certain day and under a certain pain to be specified, personally to be and ap- pear before your honors in this honorable court, and then and there to answer all and singular the premises, and to stand to, perform, and abide such order and decree therein as to your honors shall seem meet. And your orator shall ever pray. J. K., G. H.. Complainant. Solicitor for Complainant. so § 833. Another forin of a supplemental bill. [Title of court and cause, and address to the court.] Humbly complaining, shows unto your honors your orator, M. C, 60 The above form is taken from Van Heythuysen, Eq. Drafts. 408, and is also found in Curtis, Eq. Prec. 114. (904) Ch. 46] SUPPLEMENTAL BILLS. § 834 of, etc., by leave of this court first had, that your orator, on or about tlie day of last, exhibited his original bill in this court against W. J., stating in substance, among other things [the scope and material allegations of the bill briefly], and praying [the prayer at length]. And your orator further shows that the said W. J. appeared and filed his answer to such bill, and your orator replied to the same. And your orator further shows, by way of supplement (leave of this court having first been granted therefor), that, before any pro- ceedings were had in such cause [state the facts rendering the sup- plemental bill proper]. And your orator is advised that he is entitled to the same relief against the said J. D. as he would have been en- titled against the said W. J. [This clause will be used if a new party Is Introduced, succeeding to the right of the former party.] To the end, therefore [the usual interrogating], and that your orator may have the full benefit of such suit and proceedings against the said [the new party], and may have the same relief against him as he might or would have had against the said [the original party; if spe- cial relief is desired, pray for it], and that your orator may have such further and other relief in the premises as to your honors shall seem meet. May it please your honors to grant [pray subpoena. If the bill is against the old parties on new subsequent matters, the clause praying the full benefit of the suit, etc., will be omitted, and the prayer be in the usual form]. M. C, G. H., Complainant. Solicitor for Complainant.ei S 834. Time of filing. After tlie replication is filed, and an order of reference en- tered, tlie complainant cannot file a supplemental bill to bring before the court facts known to him before filing the replica- tion, and obtaining the order of reference.®^ If the complainant has gone on with an account before the master after the dis- covery of new matter, it seems that he cannot, after the coming in of the master's report, file a supplemental bill based on the discovery of such new matter.^^ A bill of this kind oiight to 61 This form is taken from 3 Hoffman, Ch. Pr. cxii. 62 2 Barbour, Ch. Pr. 60; Dias v. Merle, 4 Paige (N. Y.) 259. See Pendleton v. Fay, 3 Paige (N. Y.) 204. 63 Pendleton v. Fay, 8 Paige (N. Y.) 204. See, also, relative to time for filing supplemental bills. Miller v. Clark, 49 Fed. 695; Hazleton Tripod-Boiler Co. v. Citizens' St. Ry. Co., 72 Fed. 317; North American Coal Co. V. Dyett, 2 Edw. Ch. (N. Y.) 115; Usborne v. Baker, 2 Madd. 379. (905) § 835 EQUITY PLEADING AND PRACTICE. [Ch. 46 be filed as soon as the new matter sought to be inserted therein is discovered ; and if a party proceeds to a decree after the "dis- covery of the facts upon which the new claim is foimded, he will not be permitted afterwards to file a supplemental bill in the nature of a bill of review founded on such facts.** S 835. Filing the bill. A supplemental biU cannot be filed without a previous order of the court giving permission.*^ In ordinary cases, the de- fendant is not entitled to notice of the application for such order. Such notice is necessary only where the complainant asks for a preliminary injunction, or some other special relief upon the matter of the supplemental bill previous to the time for the appearance of the defendant thereto.®* Where no ob- jection is taken to the regularity of the proceedings on the ground that the supplemental bill was filed without leave, it will be considered as waived by a voluntary appearance and demurrer by the defendants.*^ Where an injunction is asked «<2 Barbour, Ch. Pr. 74; Lawrence v. Bolton, 3 Paige (N. Y.) 294. 65 2 Barbour, Ch. Pr. 73; Eager v. Price, 2 Paige (N. Y.) 333; Bowie V. Minter, 2 Ala. 406; Pedrick v. White, 1 Mete. (Mass.) 76; Allen V. Taylor, 3 N. J. Eq. 435; Tappan v. Evans, 12 N. H. 330. For practice in federal courts, see United States Equity Rule 57; Park- hurst V. Kinsman, 2 Blatchf. 72, Fed. Cas. No. 10,758; Oregon & Trans- continental Co. V. Northern Pac. R. Co., 32 Fed. 428; Mackintosh v. Flint & P. M. R. Co., 34 Fed. 582. But it is said in 4 Minor, Inst. Com. & St. Law (2d Ed.) 1263 (1131) : "A supplemental bill may be filed, it would seem, without the previous leave of court, except where it seeks to change the original structure of the bill, and to introduce a new and different case. But even though the previous leave may be dispensed with, the court will yet see to it that no supplemental bill shall be resorted to where the same end may be attained by an amend- ment, nor where the plaintiff has been guilty of laches in delaying it too long after the discovery of the new matter which he proposes to introduce,"— citing Story, Eq. PI. §§ 333, note, 338a. 66 2 Barbour, Ch. Pr. 73, 74; Lawrence v. Bolton, 3 Paige (N. Y.) 294; Parkhurst v. Kinsman, 2 Blatchf. 72, Fed. Cas. No. 10,758; Allen V. Taylor, 3 N. J. Eq. 435. 67 Allen V. Taylor, 3 N. J. Eq. 435; Van Wert v. Boyes, 140 111. 89, 29 N. E. 710. (906) Ch. 46] SUPPLEMENTAL BILLS. § 835 for on. such a bill, a copy of the bill is duly served on the party if he appears in the cause, together with the notice of the appli- cation, and, if the court makes an order for the injunction, leave to file the bill is necessarily implied in such order.®* A motion to file a supplemental bill is addressed to the sound dis- cretion of the court, with the exercise of which a court of re- view will seldom interfere.*® If such bill is filed without any sufficient grounds, the defendant must make the objection by plea, answer, or demurrer.'^" On an ex parte application for leave to file a supplemental bill, the court examines the ques- tion so far as to see that the privilege is not abused for the puipoaes of vexation and delay to the defendant, and in a doubt- ful case, even though no injunction is asked for, the court may direct notice of the application to be given to the defendants who have appeared.''^ The application to file a supplemental 68 2 Barbour, Ch. Pr. 74; Eager v. Price, 2 Paige (N. Y.) 333. 69 Turner v. Berry, 8 111. 541; Caldwell v. First Nat. Bank, 89 111. App. 448; Winn v. Jones, 2 Md. Ch. 42; Jefferson County v. Ferguson, 13 111. 35. Leave to file a new hill as a substitute for the original bill with its various amendments and a supplemental bill is properly re- fused where many amendments have been allowed, demurrers thereto passed upon, an order dismissing the bill set aside, a supplemental bill filed, and demurrers sustained to the bill as amended, and to the supplemental bill. Fitch v. Gray, 162 111. 337, 44 N. E. 726. 70 2 Barbour, Ch. Pr. 74; Lawrence v. Bolton, 3 Paige (N. Y.) 294. A supplemental bill filed by authority of court obtained on notice to defendants, which makes an essentially different case from that in- tended and contemplated by the permission given, will be ordered to be taken from the files. Stockton v. American Tobacco Co., 53 N. J. Eq. 400, 32 Atl. 261; Buckingham v. Corning, 29 N. J. Eq. 238. If there is any irregularity in filing a supplemental bill and amendment with- out leave of court, advantage of it cannot be taken by demurrer, but a motion should be made to strike it from the files. Orvis v. Cole, 14 111. App. 283; Barriclo v. Trenton Mut. Life & Fire Ins. Co., 13 N. J. Eq. 154; Allen v. Taylor, 3 N. J. Eq. 435, 29 Am. Dec. 721. The ob- jection that a supplemental bill was filed without the authority of the court is not matter of demurrer, though the bill upon that ground may, in the discretion of the court, be dismissed. Barriclo v. Tren- ton Mut. Life & Fire Ins. Co., 13 N. J. Eq. 154. See Eager v. Price, 2 Paige (N. Y.) 333; Pedrick v. White, 1 Mete. (Mass.) 76. 712 Barbour, Ch. Pr. 74; Eager v. Price, 2 Paige (N. Y.) 333; Winn (907) § 837 EQUITY PLEADING AND PRACTICE. [Ch. 46 bill may be made either by motion or petition. '^^ It seems that where the refusal of the court to allow a party to file a supple- mental bill before the original bill comes to a hearing proceeds on special grounds, which are shown to have been misapprehended, the party, after correcting this misapprehension, will be per- mitted to renew his application.''* § 836. Form of petition for leave to file supplemental bill. [Title of court and cause, and address to the court.] The petition of A. B., the above complainant, respectfully shows that on or about the day of your petitioner filed his bill in this honorable court against the defendant, C D., for the pur- pose of [state generally the object of the original bill], and praying [state the prayer]. And your petitioner further shows that the said C. D., being served with summons, appeared to said bill and put in his answer thereto, to which the petitioner filed a replication [if the answer has not yet been filed, state such fact, and what proceedings have been had, e. g., "filed a demurrer thereto," or "put in his plea thereto," or "has not yet put in his answer thereto"] ; that afterwards, that is to say, on or about the — day of , and before any further proceedings were had in said cause, etc. [state the supplemental matter] ; where- fore your petitioner is advised that it is necessary to bring the said G. H. before this court as a party defendant to this suit. Your petitioner therefore prays that leave may be granted to him to file a supplemental bill against the said G. H. for the purpose of making him a party defendant to this suit, with proper and apt words to charge him as such, and with such prayer for relief as may be proper, and for such other, etc. A. B., J. K., Petitioner. Solicitor for Complainant. [Add verification.]'* § 837. Form of order to file supplemental bill. [Title of court and cause.] On reading and filing the petition of A. B., complainant, praying for leave to file a supplemental bill in this cause, on motion of J. K., solic- itor for said complainant, and on hearing L. M., solicitor for the de- V. Albert, 2 Md. Ch. 42; Pedrick v. White, 1 Mete. (Mass.) 76; Tappan V. Evans, 12 N. H. 330. 72 2 Barbour, Ch. Pr. 74. 73 Smith's Adm'rs v. Wainwrlght, 24 Vt. 97. 74 This form is taken from 2 Barbour, Ch. Pr. 551. (908) eh. 46] SUPPLEMENTAL BILLS. {^ 839 fendant, in opposition thereto, and it appearing to tlie court that Lstate shortly the object of the supplemental bill], and that it is neces- sary to bring G. H. before this court as a party defendant in this suit, It is, on motion of the solicitor for said complainant, ordered that the said complainant have leave to file his supplemental bill in this suit. § 838. Process and appearance. Under the Englisk chancery practice, if a party to the orig- inal bill does not voluntarily appear to a supplemental bill, the complainant must proceed by subpoena to obtain an appear- ance to the same.''^ The subpoena is in the same form as a sub- poena to answer an original bill, except that it specifies the nature of the bill which has been filed.''® Obedience to the writ may be enforced in the same manner and by the same process as to a subpoena to answer the original bill.''^ § 839. Demurrer. A demurrer to a supplemental bill may be filed whenever it appears upon the face of the supplemental bill that the com- plainant has no right to file that species of bill, either from 75 2 Barbour, Ch. Pr. 75. See Lawrence v. Bolton, 3 Paige (N. Y.) 294. In Illinois, upon the filing of a supplemental bill, no summons need issue against a party already in court, nor need any appearance to a supplemental bill be entered before a pro confesso order can be entered. A defendant already in court by service or appearance may be required to answer a supplemental bill, and, on his failure to do so, a decree pro confesso to such supplement may be rendered. Mix V. Beach, 46 111. 315. United States Equity Rule 57 requires the de- fendant to a supplemental bill to plead thereto on the next rule day after the supplemental bill is filed, unless the court assigns some other time. Upon a supplemental bill, no process of subpoena need is- sue unless new parties are made. The rule upon parties already served to answer the supplemental bill is sufficient. Shaw v. Bill, 95 U. S. 10. See, also, Great Western Telegraph Co. v. Purdy, 162 U. S. 329. But see French v. Hay, 22 Wall. (U. S.) 238, saying: "New process is necessary unless waived upon a supplemental bill and a bill of revivor, but not upon an amended bill, as to defendants who are already before the court. Cunningham v. Pell, 6 Paige (N. Y.) 657; Longworth v. Taylor, 1 McLean, 516, Fed. Cas. No. 8,491." 76 2 Barbour, Ch. Pr. 75. 77 2 Barbour, Ch. Pr. 75. See supra, § 129. (909) § 839 EQUITY PLEADING AND PRACTICE. [Ch. 46 want of title or from mistake in pleading.''* If a supplemental bill is filed without any sufficient grounds, the defendant may demur.''* If it appears upon the face of such a bill that all the matters alleged therein arose previous to the commencement of the suit, and might have been inserted in the original bill by way of amendment, the objection may be taken by demurrer, even though the supplemental bill contains an allegation that the facts were not known to the complainant until the original cause was at issue.®" Many of the causes of demurrer which apply to an original bill will also apply to a supplemental bill, but there are some grounds of demurrer which are applicable solely to supplemental bills.®^ If a supplemental bill is filed upon matters arising subsequent to the time of filing the origi- nal bill against a person who claims no interest out of the mat- ters in litigation by the former bill, the defendant to the bill thus brought as a supplemental bill may demur, especially if the bill prays that he may answer the matters charged in the former bill.®^ A defendant to a supplemental bill may also demur if the complainant files a supplemental bill claiming the same matter as in his original bill, but upon a title totally dis- tinct.®* A defendant cannot demur to a bill of this kind on the ground that, by the practice of the court, the complainant 78 story, Eq. PI. § 612; Cooper, Eq. PI. 212. '9 2 Barbour, Ch. Pr. 75; Lawrence v. Bolton, 3 Paige (N. Y.) 294. 80 2 Barbour, Ch. Pr. 75; Story, Eq. PI. § 614; Stafford v. Howlett, 1 Paige (N. Y.) 200; Colclough v. Evans, 4 Sim. 76; Walker v. Gilbert, 7 Smedes & M. (Miss.) 456. See Crompton v. Wombwell, 4 Sim. 628. A bill purporting to be a supplemental bill will not be ordered, on motion, to be taken off the file on the ground that it is not in fact such. The defendant should demur. 1 Barbour, Ch. Pr. 366; Bowyer V. Bright, 13 Price, 316. Where the defendant who answered the orig- inal bill specifically alleged a want of equity therein, and thereafter complainant filed a supplemental bill, it was held proper to consider and decide, on demurrer to the supplemental bill, the question of want of equity in the original bill. Williams v. Winans, 22 N. J. Eq. 573. 812 Barbour, Ch. Pr. 75. 82 2 Barbour, Ch. Pr. 75; Mitford, Eq. PI. 202; Baldwin v. Mackown, 3 Atk. 817. 83 2 Barbour, Ch. Pr. 75, 76; Tonkin v. Lethbridge, Coop. 43. (910) Ch. 46] SUPPLEMENTAL BILLS. § 841 may obtain the requisite relief by petition.®* A motion to take a supplemental bill off the file for irregularity, on the ground that it does not state supplemental matter, will not lie. The proper course in such a case is to demnr.®^ A supplemental bill cannot be filed after a dismissal of the original bill.®' Demurrers to supplemental bills are subject to the same rules, both with respect to their form and substance, and to the prac- tice arising upon them, as the demurrers to original bills.®^ § 840. Plea. Besides those grounds of plea which are common to supple- mental and original bills, if a supplemental bill is brought on matter which arose before the original bill was filed, and which might have been introduced into the original bill, and this fact does not appear upon the supplemental bill, so as to enable the defendant to demur, it may be pleaded.®® If a supplemental bill is filed without sufficient grounds, the defendant may make the objection by way of plea.®® Pleas to supplemental bills are subject to the same rules, both with respect to their form and substance and to the practice arising upon them, as pleas to original bills.®'' § 841. Answer. If the defendant to the supplemental bill neither demurs nor pleads to it, he must put in his answer as in the case of an original bill. It is said that, if there is any matter in the supplemental bill which is properly the subject of demurrer or plea, he may, by his answer, claim the same benefit for it that 8*2 Barbour, Ch. Pr. 76; Da vies v. Williams, 1 Sim. 5. 85 2 Barbour, Ch. Pr. 76; Bowyer v. Bright, 13 Price, 316; Wing v. 'Champion, 1 Tenn. Ch. 517. 86 Burke v. Smith, 15 111. 158. 87 2 Barbour, Ch. Pr. 76. 88 2 Barbour, Ch. Pr. 76; Stafford v. Howlett, 1 Paige (N. Y.^ 200. 89 Cooper, Eq. PL 303, 304; 2 Barbour, Ch. Pr. 76; Lawrence v. Bol- ton, 3 Paige (N. Y.) 294. 80 2 Barbour, Ch. Pr. 76. (911) § 843 EQUITY PLEADING AND PRACTICE. [Cli. 46 he would liave been entitled to had he demurred or pleaded.^^ The answer must be restricted to the matters stated in the sup' plemental bill, and the defendant has no right, under pretext of answering a supplemental bill, to add to or amend his answer to the original bill.*^ But where a defendant is called upon to answer the original bill at the same time that he answers the supplemental matter, the usual course is to include the answers to the original bill and supplemental bill in the same answer.^* It appears, however, that it is not absolutely irregular to sepa- rate them.^* The form of an answer to a supplemental bill, and the manner of putting it in and filing it, are the same as in the case of an answer to an original bill, and are subject to the same contingencies.®® After the answer has been put in, and proceedings on the supplemental bill have arrived at the same point at which the original bill stood, they then proceed pari passu together.^® § 842. Replication. A replication may be filed by the complainant to the defend- ant's answer, if one is put in, in the same manner as in the case of an original bill. A separate replication in a supple- mental suit is only necessary where there has been already a replication in the original suit. Where there has been no replication in the original suit, a general replication will ap- ply to the whole record, and not merely to the original bill.®''^ § 843. Evidence. If the new matter in the supplemental bill is not admitted by the defendant's answer, it must be proved; otherwise the 91 2 Barbour, Ch. Pr. 76, 77. 92 Swan V. Dent, 2 Md. Ch. Ill; Thomas v. Visitors of Frederick County School, 7 Gill & J. (Md.) 369. 93 2 Barbour, Ch. Pr. 77 ; Vigors v. Audley, 9 Sim. 408. 94 Sayle v. Graham, 5 Sim. 8; 2 Barbour, Ch. Pr. 77. 95 2 Barbour, Ch. Pr. 77. 96 2 Barbour, Ch. Pr. 77; Lube, Eg. PI. 138. 97 2 Barbour, Ch. Pr. 77; Catton v. Carlisle, 5 Madd. 427. See Day v. Potter, 9 Paige (N. Y.) 645. (912) Ch. 46] SUPPLEMENTAL BILLS. ^ 844 supplemental bill will be dismissed with costs. Witnesses may be examined as to the new matter contained in the sup- plemental suit.^^ Where no witnesses have been examined in the original cause, they may be examined (provided publication has not passed) to prove the matters in issue in the original cause, as well as those in issue in the supplemental suit.^^ Whatever evidence was properly taken in the original suit may be made use of in both suits, even though not entitled in the supplemental suit.^"" In cases of alienation pendente lite, the alienee is bound by the proceedings in the suit after alienation, and before the alienee became a party to it, and depositions of a witness taken after the alienation, and before the alienee be- came a party, may be used by other parties against the alienee as they might have been used against the party under whom he claims.-^"-' ; § 844. Hearing. If there has been no decree in the original suit before the filing of the supplemental bill, the original and supplemental suit may come on for hearing together, unless the supplemental bill is merely for discovery, and one decree will be made in both; but if a decree has been obtained before the event by which the supplemental bill was rendered necessary, though it be only a decree nisi, there must be a decree on the supplemen- tal bill, for which purpose the supplemental cause must be brought to a hearing alone, or it may be heard with the original cause for further directions.-'*'^ 98 2 Barbour, Ch. Pr. 78. 98 2 Barbour, Ch. Pr. 78. When publication has passed, it will be ir- regular to examine witnesses as to matters in issue in the original suit, and, if any are re-examined as to such matters, the depositions cannot be read at the hearing. 2 Barbour, Ch. Pr. 78; Bagnall v. Bag- nail, 12 Vin. Abr. 114, pi. 9. 100 2 Barbour, Ch. Pr. 78; Giles v. Giles, 1 Keen, 685. 1012 Barbour, Ch. Pr. 79; Mitford, Bq. PI. 74; Garth v. Ward, 2 Atk. 174. 102 2 Barbour, Ch. Pr. 71, 72, 79; Mitford, Eq. PI. 64, 75, 76; Story, Ea. PI. § 343; Seton, Decrees, 385, 386; Adams v. Dowding, 2 Madd. (913) Equity. — 58. §847 EQUITY PLEADING AND PRACTICE. [Ch. 46 § 845. Entitling orders. When the two suits proceed as one cause, orders and papers are entitled; "A. B., Complainant, vs. 0. D. and E. F., De- fendants — ^By original and supplemental bills."^"* § 846. Dismissing bill. If the supplemental bill is unnecessarily or improperly filed, it will be dismissed at the hearing, although the complainant obtains a decree on the original bill.-"'* If no proof is made of the supplemental matter, the bill will be dismissed at the hearing.^"^ S 847. Decree. "Where the original and supplemental bills are heard to- gether, the decree is in the following form : "That it is in the original cause ordered," etc. ; "and on the supplemental bill it is ordered," etc.^"® 61. See, also. Waterman v. Buek, 63 Vt. 544, 22 Atl. 15'; Wilkinson v. Fowkes, 9 Hare, 193. 103 2 Barbour, CTa.. Pr. 79; Seton, Decrees, 385. 10*2 Barbour, Ch. Pr. 79; Eager v. Price, 2 Paige (N. Y.) 333. 106 2 Barbour, Ch. Pr. 79; Bagnal v. Bagnal, 2 Eq. Cas. Abr. 173. 106 2 Barbour, Cb. Pr. 80; Attorney General v. Hurst, 2 Cox, 364, cited in Seton, Decrees, 132. (914) CHAPTER XLVII. BILL OF REVIVOR. § 848. Definition and nature. A bill of revivor is a method of reviving and continuing the proceedings whenever there is an abatement of the suit before its final consummation. The death or marriage of one of the original parties to the suit is the most common, if not the sole, cause of abatement.^ It is a mere continuation of the old suit, and not the commencement of a new suit, for the abatement amounts to a mere suspension, and not to a determination of the original suit.^ And if the complainant was entitled to sue in the federal court on the gTOund of diverse citizenship, his personal representative, though a citizen of the same state as the defend- ant, may file a bill of revivor.^ In most jurisdictions, when a suit in equity has abated on account of the occurrence of certain conditions, a method is provided for reviving such suits by statute or rule of court.* In the absence of statute, such a suit may be revived by means of a bill of revivor, which is a con- tinuance of the original bill to bring some new party before the court, when, by death or otherwise, the original party has be- come incapable of prosecuting or defending the suit, and the suit is, as it is in equity technically called, "abated," — ^that is, suspended in its progress. The object of a bill of revivor is to bring before the court some new party, when the original party 1 Story, Eq. PI. § 354; Mitford, Bq. PI. 56; Cullum v. Batre's Ex'x, 2 Ala. 415; Doe d. Duval's, Heirs v. McLoskey, 1 Ala. 708; Nicoll v. Roose- velt, 3 Johns. Ch. (N. Y.) 60. 2 Clarke v. Mathewson, 12 Pet. (U. S.) 164; Hone v. Dillon, 29 Fed. 465. 3 Brooks V. Laurent, 98 Fed. 647. * For practice in federal courts, see United States Equity Rule 56. (915) § 849 EQUITY PLEADING AND PRACTICE. [Ch. 47 has become incapable of prosecuting or defending the suit.'' Where a statute authorizing revival on summary application requires notice to be given by personal service, within or with- out the jurisdiction of the court, if the parties against whom the suit is sought to be revived are beyond the jurisdiction of the court, or cannot be found, and no provision is made for pro- ceeding, by advertisement or otherwise, against absentees, a bill of revivor becomes necessary.® So, also, where such statute exists, a bill of revivor is also necessary where supplemental matter must be combined with that appropriate to a pure case of revivor.'' It is held that a statutory method of reviving a suit is not exclusive, but that parties may still proceed by bill of revivor.* § 849. When proper. Wherever a suit abates by death, and the interest of the per- son whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, — as an heir at law, executor, or administrator, — so that the title cannot be disputed, at least in a court of chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be continued by a bill of revivor merely.^ So, also, in the ab- sence of statute, marriage of a female complainant constitutes an abatement, and a bill of revivor becomes necessary. But if a female complainant marries pending a suit, and afterwards, before revival, her husband dies, a bill of revivor is not neces- sary, her incapacity to prosecute the suit being removed, and the subsequent proceedings can be had in the name and with ^Douglass v. Sherman, 2 Paige (N. Y.) 361; Kennedy v. Bank of Georgia, 8 How. (TJ. S.) 586. 6 Wilkinson v. Parish, 3 Paige (N. Y.) 653. T2 Barbour, Ch. Pr. 34; Hall v. Hall, 1 Bland (Md.) 130; Ross v. Hatfield, 2 N. J. Eq. 363; Douglass v. Sherman, 2 Paige (N. Y.) 358; Barnett v. Powers, 40 Mich. 317. 8 Reid V. Stuart's Ex'r, 20 W. Va. 382. See, to the contrary. Keep v. Crawford, 92 111. App. 587. 9 2 Barbour, Ch. Pr. 35; Mitford, Eg. PI. 69; Douglass v. Sherman, 2 Paige (N. Y.) 360; Ross v. Hatfield, 2 N. J. Eq. 363. (916) Ch- 47] BJI^ OP REVIVOR. § 849 the descriptiQii wliicti she h.a^ acq^^ijed by the maj:riage.^" Not every death creates an abatement- If the interest of a party dying so determines that it cannot affect the suit, and no person becomes entitled thereupon to the same interest, the suit does not abate so as tp require any proceeding to warrant the prosecu- tion of the suit against the remaining parties ; but if the dece- dent be the only complainant or defendant, no subject-matter of litigation remains, and the suit ends.^^ So, if the whole interest of a party dying survives to another party, as if a bill be filed by or against joint tenants, and one dies, the suit may be continued by or against the survivor, without revivor.^ ^ If the complainant, in a bill of interpleader, dies after a decree that the defendants interplead, there will be no abatement of the suit, which has terminated as to the complainant, and no revivor against the representatives of the complainant is nec- essary.-^^ Where one of the complainants in a bill for fore- closure dies after a decree of sale, but before sale, a sale made without revivor will be set aside.-'* Where the existence of a public corporation was terminated, and its duties and liabilities devolved upon certain officials, the court allowed a bill of revivor against such officials to be maintained.^® In all cases where, by the death of a party, the suit is abated, and his interest or title to the property in controversy is transmitted, by devise or in 10 2 Barbour, Cli. Pr. 34; Douglass v. Sherman, 2 Paige (N. Y.) 360; Bowie V. Minter, 2 Ala. 406; Quackenbush v. Leonard, 10 Paige (N. Y.) 131. The marriage of a female defendant pendente lite does not abate the suit, and it is only necessary in that case to obtain an order that the cause proceed against her by her new name, in conjunction with that of her husband. Quackenbush v. Leonard, 10 Paige (N. Y.) 131. 11 2 Barbour, Ch. Pr. 38; Mitford, Eq. PI. 58. 12 2 Barbour, Ch. Pr. 38; Fallowes v. Williamson, 11 Ves. 309. 13 2 Barbour, Ch. Pr. 38; Story, Eq. PI. §§ 357, 358. 1* Glenn v. Clapp, 11 Gill & J. (Md.) 1; Requa v. Holmes, 16 N. Y. 193; Washington Ins. Co. v. Slee, 2 Paige (N. Y.) 365. See, however, Trenholm v. Wilson, 13 S. C. 174; Burbridge v. Higgins' Adm'r, 6 Grat. (Va.) 119; Kellogg v. Tout, 65 Ind. 146; Harrison v. Simons, 3 Edw. Ch. (N. Y.) 394; Hays v. Thomae, 56 N. Y. 521. 10 Hemingway v. Stansell, 106 U. S. 399. See, also, for revivor on dissolution of a corporation, Griswold v. Hilton, 87 Fed. 256. (917) § 851 EQUITY PLEADING AND PRACTICE. [Ch. 47 any other maimer, so that the title, as well as the person enti- tled, may be a subject of litigation in a court of chancery, the suit cannot be continued by a bill of revivor. In such cases an origiaal bill in the nature of a biU of revivor and supplement must be filed, on which the question of title may be put in issue and litigated.^ ^ If the whole interest of a party dying sur- vives to another party, so that no claim can be made by or against the representatives of the party dying, as if a bill is filed by or against trustees or executors, and one dies not having possessed any of the property in question, or done any act relat- ing to it which may be questioned, the proceedings do not abate. So, if a surviving party can sustain the suit, as in the case of several creditors, complainants on behalf of themselves and other creditors, the proceedings do not abate.-' ^ Yet, if one of the original complainants in such suit dies after a decree, his personal representative may, if he thinks proper, revive the suit.i« § 850. There must be matter to be litigated. In order to authorize a revivor of a suit, it is necessary that there be matter to be litigated. Thus, a bill will not lie upon an abatement, after answer to a bill for discovery, for, in such case, the entire object of the bill has been obtained.^® § 851. Revivor for part of matter ia litigation. A suit which has become abated may be revived as to part only of the matter in litigation, or as to part by one bill, and 16 Douglass V. StLerman, 2 Paige (,N. Y.) 361; Peer v. Cookerow, 14 N. J. Eq. 361; Huet v. Say, Sel. Cas. t. King, 53; Ryland v. Green, 5 Brown, Pari. Cas. 403; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Barnett v. Powers, 40 Mich. 317. i^Boddy V. Kent, 1 Mer. 364; Story, Eq. PI. § 357; Masters v. Barnes, 7 Jur. 1167; Young v. Kelly, 3 App. D. C. 306; Mitford, Eq. PL 58, 59; Fallowes v. Williamson, 11 Ves. 306. 18 2 Barbour, Cb. Pr. 39; Burney v. Morgan, 1 Sim. & S. 358. 19 Story, Eq. PI. § 371a; 2 Barbour, Ch. Pr. 38; Horsburg v. Baker, 1 Pet. (TJ. S.) 232; Gould v. Barnes, 1 Dickens, 133; Dodson v. Juda, 10 Ves. 31. (918) Ch. 47] BILL OF REVIVOR. § 852 as to tlie other part by another. Thus, if the rights of a com- plainant in a suit upon his death become vested, part in his heirs, and part in his personal representatives, each may revive the suit, so far as concerns his title.^*' But while a suit may be revived as to a part of the matter in litigation, it cannot be revived as to a part only of the proceedings. A revivor cannot be made to operate from a particular period of the proceedings only, but the whole proceedings, bill, answer, and orders made in the cause, must stand revived, for the revivor is but a con- tinuance of 4he same suit, and it cannot be a continuance of the same unless it proceeds from where the other left off.^^ § 852. Bevival for costs. It is a general rule that no suit shall be revived for costs merely unless such costs are taxed and report thereof made in the life-time of the party; but if costs are to be paid out of an estate, the suit may be revived for them.^^ This rule, however, is not favorably regarded,^ ^ and has been disregarded.^* To obtain the costs, the executor or, personal representatives must be before the court expressly in their character as such ; for if the bill of revivor states the complainants to be the heirs and devisees of the party deceased, though some of them be in fact executors, they are only before the court in their former char- acter.^^ The rule does not apply where anything else is di- rected by the decree which remains unexecuted.^® Whether 20 2 Barbour, Ch. Pr. 37; Mitford, Eq. PI. 63; Cooper, Bq. PI. 71; HofCman v. Tredwell, 6 Paige (N. Y.) 308; Ferrers v. Cherry, 1 Eq. Cas. Abr. 3, 4; Owings' Case, 1 Bland (Md.) 409; Herd v. Marshall, 5 Dana (Ky.) 495. 212 Barbour, Ch. Pr. 37. 22 Story, Eq. PI. § 371; 2 Barbour, Ch. Pr. 35; Jupp v. Geering, 5 Madd. 375; Hall v. Smith, 1 Brown Ch. 438; Blower v. Morrets, 3 Atk. 773; Johnson v. Thomas, 2 Paige (N. Y.) 377; Kemp v. Mackrell, 2 Ves. Sr. 580; Morgan v. Scudamore, 3 Ves. 195. 23 Johnson v. Peck, 2 Ves. Sr. 465 ; Glenham v. Stutwell, 1 Dickens, 14. 24 Owings' Case, 1 Bland (Md.) 370, 409; Ridgely v. Bond, 18 Md. 433. 25 Travis v. Waters, 1 Johns. Ch. (N. Y.) 85. 28 2 Barbour, Ch. Pr. 35; Johnson v. Peck, 2, Ves. Sr. 465. (919) § 856 EQUITY PLEAPING AKD PIIACTICE. [Ch. 47 the abatement occurs by tbe death of the party who jp tq pay, or of the p?irty who is to receive, the costs, is of no consequei;i,cei.*'' i 853. Revival for appeal. A defendant has been allowed to file a bill of revivor in order to enable him to appeal from a decree where the com- plainant died before the defendant brought an appeal.^® § 854. To give effect to action of court of review. Where a party complainant died pending appeal, and the ap- pellate court reversed the decree and remanded the cause with directions, the defendant was allowed to file a bill of revivor against the personal representatives of the deceased complain- ant and the surviving complainants, and the order directed such personal representatives and surviving complainants to show cause why a decree should not be entered to carry into effect the decree of the appellate court.^* § 855. Revivor on bill and cross bill, and on decree in several suits. Wherever there is an original bill and cross bill thereto, if an abatement takes place, there must generally be a bill of revivor in each case; but if the bills relate to an account, and there is a decree for an account, the two causes become thereby so con- solidated that one bill of revivor praying for a revivor of the whole revives both causes.*" Where one decree has been taken in several suits, and an abatement afterwards occurred, one bill of revivor is sufiicient.*^ § 856. Who may revive — Before decree. Upon abatement by death, before decree, of a sole complain- 27 2 Barbour, Ch. Pr. 35; Jupp v. Geering, 5 Madd. 375. 28 Peer v. Cookerow, 13 N. J. Eq. 136; Anderson v. White, 10 Paige (N. Y.) 575. 29 Rogers v. Paterson, 4 Paige (N. Y.) 409. See, also, Ashley v. Cun- ningham, 16 Ark. 168. 30 2 Barbour, Ch. Pr. 38; Story, Eq. PI. § 363; Cooper, Eq. PI. 64. ?■! 2 Barbour, Ch. Pr. 38; Moore v. Elkington, 2 Beav. 574. (920) Ch. 47] ?ILL OF EEVIVOE. § 857 ant in a suit in equity, the only perspn entitled to revive such suit is the representative, real or personal, as the case may he, of the person deceased, unless the hill was originally filed by the complainant in a representative capacity, in v^hich case the party to revive will be the individual in whom the representa- tion of the deceased person is vested, and not the representative of the original complainant, unless such representative is also clothed with the character of representative of the original tes- tator or intestate.*^ If abatement has occurred by the death of one of several complainants, the suit may be revived by the representative of the deceased complainant, in conjunction with or separately from the surviving complainants, who must, how- ever, be made parties.^^ One of such surviving complainants may, if the others refuse to join, file a bill of revivor making the other surviving complainants, as well as the representatives of the deceased complainant, defendants.^* On the marriage of a female complainant, the suit may be revived by husband and wife jointly, or, if the property in litigation is the wife's sep- arate property, the bill must be filed on the part of the wife by a next friend. Such a bill, however, can hardly be a bill of revivor alone, but must be accompanied by a supplementary statement to show the settlement under which the wife became entitled to a separate estate.^® § 857. Defendant not entitled to revive before decree. In no case, before decree, can the defendant, or those claim- ing under him, revive a suit by a bill of revivor, as the ground upon which a defendant can revive must be that he has some interest under the decree.^® Where a suit is abated by the death 32 2 Barbour, Ch. Pr. 39; Benson t. Wolverton, 16 N. J. Eq. 110; Souillard v. Dias, 9 Paige (N. Y.) 393; Reid v. Stuart's Ex'r, 20 W. Va. 382; Newcombe v. Murray. 77 Fed. 492. 33 2 Barbour, Cb. Pr. 40; Fallowes v. Williamson, 11 Ves. 309. 34 2 Barbour, Ch. Pr. 40; Finch v. Wincbelsea, 1 Bq. Cas. Abr. 2. 35 2 Barbour, Ch. Pr. 40. For right of new corporation succeeding to rights of old corporation in property involved in foreclosure, see Keokuk & W. R. Co. v. Scotland Court, 152 V. S. 318. 36 2 Barbour, Ch. Pr. 41; Souillard v. Dias, 9 Paige (N. Y.) 393; (921) § 858 EQUITY PLEADING AND PRACTICE. [Ch. 47 of some of the defendants, and before decree, the proper course for the survivor, if he wishes to speed the cause, is to move for an order that the complainant revive the suit within such time as shall he directed by the court, or that his bill be dismissed with costs.*'^ § 858. Who entitled to revive after decree. The case is different after decree, and the suit may then be revived at the instance of a defendant, if the complainants, or those standing in their rights, neglect so to do. It was at one time held that the right of the defendant so to do extended only to the single case of a decree to account. By the modern decisions, such right has been extended to every case in which the defendant can derive a benefit from the further proceed- ing.^* And so it is held that, after decree, complainants and defendants being equally entitled to the benefit of a decree, either have a right to revive it.^® Where both parties have the right to revive, the complainant is given a reasonable time so to do, but, if he does not revive the suit within a reasonable time, the defendant may revive.*'' If an abatement takes place Benson v. Wolverton, 16 N. J. Eq. 110; Horwood v. Schmedes, 12 Ves. 311; McDermott v. McGown, 4 Edw. Cli. (N. Y.) 593; Livermore v. Bainbridge, 49 N. Y. 125. 37 Bolton V. Bolton, 2 Sim. & S. 371; Harrington v. Becker, 2 Barb. Ch. (N. Y.) 75; Adamson v. Hull, 1 Sim. & S. 249; Livermore v. Bain- bridge, 49 N. Y. 125. 38 2 Barbour, Ch. Pr. 42; Souillard v. Dias, 9 Paige (N. Y.) 393; Anonymous, 3 Atk. 692; Williams v. Cooke, 10 Ves. 407; Horwood v. Schmedes, 12 Ves. 311; Gordon v. Bertram, 1 Mer. 154; Grifla:nv. Spence, 69 Ala. 393. "When the defendants have acquired such an interest in the cause that the plaintiff would not be allowed to dismiss the cause at his pleasure, or where there has been such an order of reference in the cause as that, if a balance should be found in favor of the defendant, he would be entitled to a decree against the plaintiff, and, in that stage of the cause, the plaintiff dies, the defendant would have a right to revive by bill of revivor." Reid v. Stuart's Ex'r, 20 W. Va. 382. 39 Peer v. Cookerow, 13 N. J. Eq. 136; Benson v. Wolverton, 16 N. J. Eq. 110; Livermore v. Bainbridge, 49 N. Y. 125. 40 2 Barbour, Ch. Pr. 42; Pendleton v. Fay, 3 Paige (N. Y.) 205; (922) Ch. 47] BILL, OF REVIVOR. § 859 after decree, and the complainant files a bill of revivor, but neglects to obtain tbe order to revive, upon tbe expiration of the usual time the defendant may, if he is entitled to file a bill of revivor, move that the suit be revived, and he be at liberty to carry it on.*^ A person applying to revive must have some interest imder the decree, — that is, an interest in the further prosecution of the suit. Where the object of the revivor is not to continue the suit, but merely to put an end to an injunction, and to be allowed to proceed at law, a bill of revivor by the defendant will be demurrable.*^ Where the suit abates by the death of either party pending an injunction, the defendant or his representatives must move that the complainant or his representatives revive the suit within a reasonable time, or that the injunction be dissolved.*^ § 859. Applicant to revive must claim only by operation of law. The party seeking to revive must claim only by operation of law.** Therefore a devisee or alienee cannot bring a bill of revivor for want of privity. iN^either can an assignee or pur- chaser maintain a bill of revivor;*^ for a revivor is but a con- tiauation of the cause, and can only be had in the name of the representative of him by whose death it abated. And as the heir is, as to the real estate, the legal representative of a man after his death, the suit can only be revived in his name when land is the subject of litigation; and as the personal represent- ative is, as to the personalty, the legal representative of a man after his death, the suit can only be revived in his name when Quackenbush v. Leonard, 10 Paige (N. Y.) 131; Leggett v. Dubois, 2 Paige (N. Y.) 211. 41 2 Barbour, Ch. Pr. 43. 42 2 Barbour, Ch. Pr. 42; Horwood v. Schmedes, 12 Ves. 311. 43 Leggett T. Dubois, 2 Paige (N. Y.) 211; Hawley v. Bennett, 4 Paige (N. Y.) 163; Chandos v. Talbot, Sel. Cas. t. King, 24; Hill v. Hoare, 2 Cox, 50. 44 2 Barbour, Ch. Pr. 43. 45 Peer v. Cookerow, 14 N. J. Bq. 361; Dunn v. Allen, 1 Vem. 426; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Backhouse v. Middleton, 1 Ch. Cas. 174. (923) § S60 EQUITY PLEADING AND PRACTICE. [Ch. 47 personalty is the subject of litigation.*® Th^ reaspn tli,a,t a devisee or alienee caiinot bring a bill of res^ivor i? tbat t^ heir or executor may liave a right to contest th,e disposition of the property.*^ Therefore, upon the death of an adminis- trator, after decree, a bill of revivor does not lie by an admijif istrator de bonis rjion. So, on the death of an administrator of a creditor, revivor does not lie by his executor, he not being tli^ personal representative of the cred,itor. E'either can the 00m- mittee of a complainant who has becopje a lupatic since the filing of the bill, or a purchaser from the complainant, or a devisee, or assignees under an insolvent debtor's act, or the assignees of a bankrupt, who supply the place of fornier assignees, revive, for in each of these cases the interest devolves otherwise than by the mere act of law, and there is no privity.*® 5 860. Parties to a bill of revivor. Where a bill of revivor is filed by any one who was not a party to the original suit, either as a representative of a de- ceased party or otherwise, all of the surviving pa^rties to such original suit who have any interest in the further proceedings to be had therein should be made parties to such bill, either as complainants or defendants.*® It is held that, on a bill to re- vive a decree, parties to the original decree, who can neither execute the decree nor be the objects of its operation, are not necessary or proper parties.^* *6Duiln V. Allen, 1 Vern. 426; Hinde, Pr. 49, 69; 2 Barbour, Ch. Pr. 43; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Ridgely v. Bond, 18 Md. 433. «Peer v. Cookerow, 14 N. J. Eq. 361. *8 2 Barbour, Ch. Pr. 43; Huggins v. York Buildings Co., 2 Eq. Cas. Abr. 3; Dunn v. Allen, 1 Vern. 426; Anonymous, 1 Atk. 88; Harrison V. Ridley, Comyn, 589. 49 2 Barbour, Cb. Pr. 39; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538; Fallowes v. Williamson, 11 Ves. 306; Heines'v. Day, Cary, 78; Boddy v. Kent, 1 Mer. 364. BO Peer v. Cookerow, 14 N. J. Eq. 361, citing Cooper, Eq. PI. 71; Mlt- ford, Eq. PI. 79; Story, Eq. PI. § 376. See, for parties to bills of revivor, Newcombe v. Murray, 77 Fed. 492. (924) Oh. 47] BILL OF REVIVOR. § 861 § 861. Parties drfendarit to bills of rel^ivor. If a suit has abated by death or marriage, and is to be con- tinued by the representatives of the original complainant, or by husband or wife, all the defendants to the original bill must be made parties to the bill of revivor. Such is also the case where the abatement is occasioned by the death or marriage of one of several complainants, and the suit is continued by the sur- viving complainants and the representatives of the deceased complainant, or by the husband or wife in conjunction with the other complainants. If the suit is continued either by the surviving complainants alone, or by the representatives of the deceased complainant alone, the representatives of the de- ceased complainant, in the one case, or the surviving complain- ants, in the other, must be made defendants to the bill of revivor, in conjunction with the original defendants. ^^ If some of the complainants entitled to file a bill of revivor refuse to join in it, they may be made parties defendant.^^ Where the abate- ment is occasioned by the death of one of several defendants, and the suit is revived by the complainant in the original suit, only the representatives of the deceased need be brought before the court, without making the surviving defendants parties. The same principle is applicable to a supplemental bill in the nature of a bill of revivor to revive or continue a suit against the devisee or assignee of one of the original defendants.®* 51 2 Barbour, Ch. Pr. 44; Fallowes v. Williamson, 11 Ves. 306. B2 Finch V. Winclielsea, 1 Eq. Cas. Abr. 2. In case of the death of one of several complainants. If the survivors are in a situation to enable them to revive and continue the suit against his representatives as defendants in a bill of revivor, it has been said not to be usual to make the other defendants parties to the bill of revivor, but the opinion has also been expressed that, in this last case, the original defendants in the suit, as well as the representative of one of the complainants, as to whom the suit has abated, should be parties to the bill of revivor filed by the surviving complainants. Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 539. 53 2 Barbour, Ch. Pr. 44, 45; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538; Jones v. Jones, 3 Att. 217; Clough v. Bond, 6 Jur. 49. (925) §861 EQUITY PLEADING AND PRACTICE. [Ch. 47 Where one of several joint complainants in a bill involving real estate dies without issue or will, leaving the other complain- ants his heirs, no revivor is necessary ; but where personalty is involved, there must be a revivor to bring in the personal rep- resentative of the decedent.®* Where a bill of revivor is filed after decree, all persons interested in carrying the decree into effect must be made parties to it; but the bill will not be de- murrable for want of a party who was not before the court at the time of the abatement, although the suit may have been imperfect for want of such party.®® Where a suit is founded on a contract, the parties to that contract, or their representatives, are, in general, the only necessary parties.®* It has been said that, if a bill be exhibited against husband and wife, and the husband dies, a bill of revivor must be filed against the wife.®^ This has been questioned, however, save where a new interest arises to the wife upon the death of her husband, in which case a supplemental bill must be filed to afford her an opportunity of putting in another defense in respect of her newly-acquired interest.®* On the death of a defendant executor, whose rep- resentatives do not become the representatives of the original testator, a bill of revivor lies against the representatives of the testator, and that without reviving against the representatives of the original defendant.®' Upon a bill for account and distri- bution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin.*" If tbe subject-matter of the suit is personalty, a bill of revivor should be filed against the personal representatives, e. g., executors or administrators, of 04 Shields v. Craig's Adm'rs, 6 T. B. Mon. (Ky.) 373. 55 2 Barbour, Ch. Pr. 45; Metcalfe v. Metcalfe, 1 Keen, 74. 56 2 Barbour, Ch. Pr. 45; Humphreys v. Hollis, Jac. 73. 57 Gilbert, Forum Rom. 175. 58 2 Barbour, Ch. Pr. 45. This question is now regulated by statute in many jurisdictions. 68 2 Barbour, Ch. Pr. 45, 46 ; Johnson v. Peck, 2 Ves. Sr. 465. 60 2 Barbour, Ch. Pr. 46; Jenkins v. Freyer, 4 Paige (N. Y.) 47. (926) Ch. 47] BILL OF REVIVOR. § 863 tHe, deceased defendant ; if realty, against his heirs. *^ Where the personal representatives of a deceased party are only en- titled to relief against the adverse party upon the conveyance to him of real estate which has descended to the heirs at law of the decedent, such heirs are necessary parties to a bill of re- vivor filed by the personal representatives.®^ "Where a mort- gagor dies pending a bill to foreclose, the cause must be revived against his heirs.®^ It is said that, if a defendant who has not answered the original bill is omitted as a defendant to the bill of revivor, it will not be a ground for demurrer.^* A bill of re- vivor will not lie against the devisee of a defendant, but the suit must be continued against him in the same manner that it is con- tinued by the devisee of a complainant.^® § 862. No revivor before appearance. Until a defendant has appeared, there is no cause in court against him. Therefore, if a defendant dies before appear- ance, the suit cannot be continued against his personal repre- sentative by a bill of revivor ; but a bill ought to be filed against him which will be an original bill so far as respects him, but a :supplemental bill with respect to the suit.*® § 863. Frame of bill of revivor. The bill of revivor must pursue the original bill, and, if there is any variance between them, the defendant may demur. It must state the original i bill, and the several proceedings siBettes V. Dana, 2 Sumn. 383, Fed. Cas. No. 1,368; Wilkinson v. Perrin, 7 T. B. Men. (Ky.) 214; Jenkins v. Freyer, 4 Paige (N. Y.) 47; Kellar's Bx'rs v. Beelor, 5 T. B. Mon. (Ky.) 577. 62 2 Barbour, Ch. Pr. 46; Souillard v. Dias, 9 Paige (N. Y.) 393. 63 Doe d. Duval's Heirs v. McLoskey, 1 Ala. 708; Rex v. Tullock, 2 :Sim. 469; Polk v. Clinton, 12 Ves. 48; Bradshaw v. Outram, 13 Ves. 235. 64 Oxburgh V. Fincham, 1 Vern. 308. 65 2 Barbour, Ch. Pr. 36; Page v. Page, Mos. 42. 66 2 Barbour, Ch. Pr. 36, 37; Crowfoot v. Mander, 9 Sim. 396. In Massachusetts, the executors of a deceased defendant may be brought in by bill of revivor, though no service had ever been made on the tes- J;ator. Heard v. March, 12 Cush. (Mass.) 580. (927) § 863 EQUITY PLEADING AND PRACTICE. [Ch. 47 thereon, and the abatement. In making the statement, great conciseness is d'esirablie, but care mnst be taken to set out enough of the original bill and proceedings to show the com- plainant's title to revive; otherwise the bill of revivor will be liable to demurrer.®'^ It ought also to show the title of the complainant to revive the suit. It is also necessary to state so much new matter, and no more, as is requisite to show how the complainant becomes entitled to revive, and to charge that the cause ought to be revived, and to stand in the same condition with respect to the parties to the original suit as it was at the time the abatement happened.®* The bill must pray that the suit may be revived accordingly, or that the defendant may show good cause to the contrary.*® In some cases it may be neces- sary to pray that the defendant may answer the bill of revivor, and the prayer may vary according to any special circumstances of the case; as, for instance, in the case of an executor or ad- ministrator of a deceased defendant, to ascertain whether he has assets to pay the complainant's demand. ''*' So, where an «7 2 Barbour, Ch. Pr. 46; Story, Eq. PI. § 374; Phelps v. Sproule, 4 Sim. 318. United States Equity Rule 58 makes it unnecessary to set forth any of the statements in the original suit unless the special cir- cumstances of the case require it. "Where a man brings a bill of re- vivor grounded upon an original bill and proceedings, he needs to set forth no more thereof, and the best draftsmen in the age have in that case gone no further than thus: 'That your orator, in or about such a time, exhibited his original bill of complaint In this honorable court, to be relieved touching certain matters and things therein contained, as by the said bill duly filed and remaining of record in this honorable court appears (and carry it no further), that the defendant on such a day put in his answer, as by the said answer remaining of record appears. That witnesses being examined, publication passed, and the cause, being at issue, came on to be heard such a day, when it was ordered and decreed' so and so. And here are taken in the words of the ordering part of the decree very shortly, and no more than what is material to the revivor." Gilbert, Forum Rom. 205. 68 Story, Eq. PI. § 374; 2 Barbour, Ch. Pr. 47; Vigers v. Audley, 9 Sim. 72; Douglass v. Sherman, 2 Paige (N. Y.) 358; Humphreys v. Ingledon, 1 P. Wms. 752; Gillett v. Robbins, 12 Wis. 354. 69 Story, Eq. PI. § 374; 2 Barbour, Ch. Pr. 47; Mitford, Eq. PI. 76. 70 Douglass V. Sherman, 2 Paige (N. Y.) 358; Brownlow v. Chandos, Vern. & S. 109. (928) Ch. 47] BILL OF REVIVOR. § 863 admission of assets by a representative of a deceased party is requisite, it must pray that, if the defendant do not admit assets to answer the purposes of the suit, the accounts may be taken/^ In this latter case, if the defendant does admit as- sets, the case may proceed against him upon an order of revivor merely. If not, it must be heard for the purpose of obtaining the necessary accounts of the estate to answer the demands made against it by the suit.'^- If the defendant to an original bill dies before putting in an answer, or after an answer to which exceptions have been taken, or after amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, or so much of it as the exceptions extend to, or of the amend- ments as remain unanswered. '^^ If the bill seeks merely to revive the suit, it prays simply for a subpoena to revive. If it requires an answer, as in the case of a bill against an executor reqxiiring him to admit assets, it should pray a subpoena to revive and answer.^'' A bill of revivor must be signed by counsel.'^ ^ 71 2 Barbour, Ch. Pr. 47. " Story, Eq. PI. § 374. i'3 Mitford, Eq. PI. 76; 2 Barbour, Ch. Pr. 47; Story, Eq. PI. § 375. The common prayer in the case of a bill of revivor on the death of the complainant is: "To the end, therefore, that the said defendant may answer the premises, and that the said suit and proceedings which so became abated as aforesaid may stand revived, and be in the same plight and condition as the same were in at the time of the death of the said J. A., or that the said defendant may show cause to the con- trary: May it please, etc." On the death of the defendant, it is as follows: "Therefore that the said suit and proceedings which became so abated by the death of the said N. S. may stand and be revived against the said T. R., and be in the same plight, state, and condition as the same were in at the time of the abatement thereof, and that complainant may have the benefit thereof, or that the said defend- ant, T. R., may show cause why the said suit and proceedings should not be so revived, and that the same may be revived accordingly." Van Heythuysen, Eq. Drafts. 341, 342. T4 2 Barbour, Ch. Pr. 48. 75 2 Barbour, Ch. Pr. 48. (929) Equity. — 59. §864 EQUITY PLEADING AND PRACTICE. [Ch. 47 S 864. Fonn of bill of revivor against executors of a deceased defendant. £Title of court and cause, and address to the court.] Complaining, shows unto your honors your orator, A. B., that on or about the day of your orator exhibited his bill of complaint in this honorable court against C. D., of , and B. F., of , etc., and R., his wife, thereby praying, etc. [here state the prayer]. That the said defendants, having been served with process of subpoena for that purpose, duly appeared and put in their answers to the said bill, and divers other proceedings were had in the said cause, and the same came on to be heard on or about the day of , before this honorable court, whereupon a decretal order was made in the said cause, and G. H., Esq., one of the masters of this court, to whom this cause was referred thereby, afterwards made a report in the said cause, which said report was duly confirmed, as by the said bill, answer, decree, report, and the other proceedings in the said cause, now remaining duly filed as of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honors that the said C. D. departed this life on or about the day of , and before any further proceedings were had in the said cause, having, in his lifetime, duly made and published his last will and testament, in "writing, bearing date on or about the day of . and there- "by appointed N. 0. and P. R., the defendants herein named, executors ■thereof, who have, since the death of the said testator, duly proved his will before the court of . and taken upon them- selves the burthen of the execution thereof; and under and by virtue of such probate have possessed themselves of the personal estate of the said testator sufficient for the payment of his funeral and testa- mentary expenses and debts, and also to answer every demand of your orator thereon touching the matters in question in said cause. And the said suit having abated by the death of the said C. D., your orator is advised that he is entitled to have the same, and the several pro- ceedings therein, revived against the said N. O. and P. R. as executors of the said C. D., and restored to the condition in which they were at the time of the death of the said C. D. To the end, therefore, that the said N. 0. and P. R. may, upon their several and respective oaths, full, true, perfect, and distinct answer make to the several matters aforesaid [if answer under oath is waived, state such fact as in form of original bill, supra, § 69], and pajy ticularly that they, in like manner, answer and set forth whether your orator did not, at or about the time aforesaid, and when, exhibit his original bill of complaint in this honorable court against such per- sons and for such purposes as therein and hereinbefore mentioned. And whether such decree and report and other proceedings as afore- said have not been made in the said cause. And whether the said (930) Ch. 47] BILL OF REVIVOR. 4J 855 C. D. did not depart this life at or about the time aforesaid, and pub- lisli his last will and testament in writing of such date as aforesaid, and thereby appoint the said N. O. and P. R., respectively, executors thereof. And whether they have not proved the said will, before the proper court, and taken upon themselves the burthen of the execution thereof. And whether they, or one and which of them, have or has not possessed sufficient of the personal estate and effects of the said testator to satisfy his funeral and testamentary expenses and debts, and also every demand of your orator thereon touching the matters in question in this cause, or how otherwise. And that the said N. O. and P. R., respectively, may either admit assets of the said C. D. come to their hands, sufficient for the purposes aforesaid, or that they may set forth an account of his personal estate possessed by or on behalf of them, or either of them, and of the application and administration thereof. And that the suit and the proceedings thereon may stand revived against the said defendants N. O. and P. R. as such executors aforesaid, and be restored to the same plight and condition as they were in at the time of the said C. D.'s death, or that the said N. O. and P. R., respectively, may show good cause to the contrary; and in case the said executors shall not admit, to the satisfaction of this honorable court, assets sufficient to pay and satisfy your orator's said demand, then that an account may be taken by and under the decree of this honorable court of the said testator's estate and effects received by or for the use of them, the said N. O. and P. R., as such executors as aforesaid, or either of them, and of the application and adminis- tration thereof: May it please your honors to grant unto your orator the people's writ of subpoena to revive and answer. Issuing out of and under the seal of this honorable court, to be directed to the said N. 0. and P. R. as such executors as aforesaid, thereby commanding them, at a certain day and under a certain penalty, to be therein limited, personally to be and appear before your honors, in this honorable court, then and there to answer the premises, and to show cause, if they can, why the said suit and the proceedings therein had should not stand and be revived against them, and be in the same plight and condition as the same were in at the time of the abatement thereof; and further to stand to and to abide such order and decree in the premises as to your honors shall seem meet. And your orator shall ever pray, etc. A. B., L. C, Complainant. Solicitor for Complainant.'s § 865. Filing bill of revivor. A bill of revivor is to be filed in the same manner as an 76 This form is taken from 2 Barbour, Ch. Pr. 537. (931) § 867 EQUITY PLEADING AND PRACTICE. [Ch. 47 original bill. Whenever a bill of this kind is necessary, it may be filed of course, without applying to the court for leave so to do.''^ § 866. Process. If a party to the original suit does not voluntarily appear upon the filing of a bill of revivor, the complainant must pro- ceed by subpoena to obtain an appearance to the same. The form of such subpoena is the same as that issued upon an origi- nal bill, except that it states the nature of the bill to which the defendant is required to appear. It is sued out and served in the same manner as an ordinary subpoena. Service upon the solicitor of the party in the original cause is insufficient.^^ The complainant in a bill of revivor may proceed against a defend- ant who cannot be personally served with process by a substi- tuted service, as provided by statute.'^® § 867. Appearance. By the English practice, if the defendant, having been served with a subpoena, neglected to appear within the time limited thereby, an attachment might be issued to take him into cus- tody, and then, if he was taken upon such attachment, and re- fused or neglected to enter an appearance within eight days after the return of such attachment, the complainant was en- titled, as of course, upon motion or petition, to the common order to revive.®° "2 Barbour, Ch. Pr. 48; Pendleton v. Fay, 3 Paige (N. Y.) 204; Lewis V. Bridgman, 2 Sim. 465. See, for practice in the federal courts. United States Eciuity Rule 56. 78 Brown v. Lee, 2 Dickens, 545; 2 Barbour, Ch. Pr. 48; Lawrence V. Bolton, 3 Paige (N. Y.) 294; Shields v. Craig's Adm'rs, 6 T. B. Mon. (Ky.) 373. See, for practice in the federal courts, United States Equity Rule 56. T9 2 Barbour, Ch. Pr. 48; Yates v. Payne, 4 Hen. & M. (Va.) 412; Duguid V. Patterson, 4 Hen. & M. (Va.) 445; Foster v. Burem, 1 Heisk. (Tenn.) 783. But see supra, § 129, note 41; Foster, Fed. Pr. (3d Ed.) § 96, quoted approvingly in Shainwald v. Davids, 69 Fed. 701. 80 2 Barbour, Ch. Pr. 49. (932) Ch. 47] BILL OF REVIVOR. § 869 i 868. Demurrer. A demurrer will lie either for want of privity, or for want •of sufficient interest in the party seeking to revive, or for some imperfection in the frame of the bill. If a bill of re- vivor does not show a sufficient ground for reviving the suit, or any part of it, either by or against the person by or against whom it is brought, the defendant may, by demurrer, show «ause against the revival. If the proper parties to the bill of revivor are not made, it is demurrable.®^ It is said that a demurrer will not lie for want of a party who has not appeared to the original bill.*^ « 869. Plea. If a bill of revivor is brought without sufficient cause to revive, and this fact is not apparent on the face of the bill, the defendant may plead the matter necessary to show that the complainant is not entitled to revive the suit against him; or, if the complainant is not entitled to revive the suit at all, though a title is stated in the bill so that the defendant cannot demur, the objection to the complainant's title may be taken by way of plea.** If a person entitled to relief does not pro- ceed in due time, he may be barred by the statxite for limita- tion of actions, which may be pleaded to a bill of revivor. Yet where the bill of revivor is after a decree to account, it is not within, nor barred by, the statute of limitations. If a suit abates before decree, the statute of limitations is a good plea to the 812 Barbour, Ch. Pr. 51, 52; Cooper, Eq. PI. 210; Story, Eq. PI. §§ €17-626; Fallowes v. Williamson, 11 Ves. 306; Gould v. Barnes, 1 Dick- ens, 133; Nanney v. Totty, 11 Price, 117; University College in Oxon' V. Foxcroft, 2 Ch. R. 244; Pendleton v. Fay, 3 Paige (N. Y.) 204; Phelps V. Sproule, 4 Sim. 318; Humphreys v. Ingledon, 1 P. Wms. 753; Harri- son V. Ridley, Comyn, 590; Crowfoot v. Mander, 9 Sim. 396; Horwood V. Schmedes, 12 Ves. 311; Metcalfe v. Metcalfe, 1 Keen, 74; Harris v. Pollard, 3 P. Wms. 348; Williams v. Cooke, 10 Ves. 406. 82 2 Barbour, Ch. Pr. 52. 83 2 Barbour, Ch. Pr. 53; Mitford, Eq. PI. 289; Pendleton v. Fay, 3 Paige (N. Y.) 204. (933) § 870 EQUITY PLEADING AND PRACTICE. [Ch. 47 revivor.®* A defendant to a bill of revivor cannot support as a defense a plea whicli has been pleaded by the original defend- ant and overruled. But if a plea has been put in, and the original defendant has died before argument, the defendant to the bill of revivor may plead the same matter de novo.^^ 5 870. Answer. To prevent the order of revivor, either a plea or demurrer must be put in to the bill of revivor.*® The putting in of an answer is treated as a vs^aiver of objections to the bill, and as an admission that it is a good bill of revivor, and that it may prop- erly be filed by the party complainant, upon which, notwithstand- ing anything that may be contained in the answer, it is a mat- ter of course to draw up the order to revive.®'' Though the de- fendant cannot, by answer, prevent the reviving of the suit, he may, if required to answer the bill, controvert in his answer the complainant's title to revive; and if he does so, and succeeds in showing at the hearing that the complainant was not enti- tled to revive, or if the complainant fails to establish his right to revive, the latter takes nothing by his suit.®® The answer must be confined to such matters as are called for by the bill, or which would be material to the defense, with reference to 84 2 Barbour, Ch. Pr. 53; HoUingshead's Case, 1 P. Wms. 742; Perry V. Jenkins, 1 Mylne & C. 118; Mason v. Hartford, P. & F. R. Co., 19 Fed. 53. See Shainwald v. Lewis, 69 Fed. 487; Hubbell v. Lankenau, 63 Fed. 881; Riely v. Kinzel, 85 Va. 480, 7 S. E. 907; Peer v. Cookerow, 13 N. J. Eq. 136. 85 2 Barbour, Ch. Pr. 53; Samuda v. Furtado, 3 Brown Ch. 70. 86 2 Barbour, Ch. Pr. 50; Harris v. Pollard, 3 P. Wms. 348; Lewis V. Bridgman, 2 Sim. 465; Codrington v. Houlditch, 5 Sim. 286. 87 2 Barbour, Ch. Pr. 50, 54; Nanney v. Totty, 11 Price, 117; Day V. Potter, 9 Paige (N. Y.) 645. Though, where an answer is called for, the defendant may by it object to the revivor, yet if it be a mere bill of revivor, in which the question between the parties Is simply as to the right to revive, an answer, unless required by the bill, is unnec- essary. 2 Barbour, Ch. Pr. 54. 88 2 Barbour, Ch. Pr. 50; Douglass v. Sherman, 2 Paige (N. Y.) 358; Harris v. Pollard, 3 P. Wms. 348; Day v. Potter, 9 Paige (N. Y.) 645; Lasco V. Moys, Bunb. 144. (934) Ch. 47] BILL OF REVIVOR. § 873 the order made upon it.®® Such answer is liable to exceptions; for impertinence and insufficiency, the same as an answer to an original bill.*" It must be signed by counsel, and may be put in and filed in the same manner as other answers, which it resembles in all other points.®^ Defenses not made in an an- swer to the original bill cannot be set up in an answer to a bill of revivor, since such bill puts in issue nothing but the character of the new party brought in.®^ § 871. Replication. If the answer does not admit the complainant's title to re- vive, or state any circumstances which he is desirous of con- troverting, it must, if the abatement has occurred after decree, or after issue joined in the original suit, be replied to, after which the proceedings upon it will be the same as upon an original bill. If the bill of revivor is filed before decree, or before issue joined in the original cause, a separate replication is unnecessary.®^ § 872. Order to revive. In all cases where the suit abates, an order to revive is nec- essary, and it is not regular to wait until the hearing, and then proceed to revive by decree.®* But where a suit abates by the death of the complainant, those who succeed to his rights may apply to the court to punish a breach of an injunction which has taken place either before or after his death, as soon as they have taken the preliminary steps to revive the suit by bill S9 2 Barbour, Ch. Pr. 54; Nanney v. Totty, 11 Price, 117; Wagstaff V. Bryan, 1 Russ. & M. 28. 90 2 Barbour, Ch. Pr. 54. The defendant may, by his answer, con- sent that the suit be revived. In that case the complainant may ob- tain an order of course for the revival of the suit. 2 Barbour, Ch. Pr. 55. 91 2 Barbour, Ch. Pr. 55. 92 Fretz v. Stover, 22 Wall. (U. S.) 198. 93 2 Barbour, Ch. Pr. 55; Catton v. Carlisle, 5 Madd. 427. 94 1 Smith, Ch. Pr. 522 ; 2 Barbour, Ch. Pr. 49 ; Day v. Potter, 9 Paige (N. Y.) 645. (935) §874 EQUITY PLEADING AND PRACTICE. [Ch. 47 of revivor. It is not necessary for them to vrait until a de- cree of revivor is actually obtained.^ ^ If the complainant does not proceed to obtain an order to revive, the defendant may move that he proceed to revive v^ithin a specified time, or that the bill of revivor be dismissed.®^ Or the defendant may ob- tain an order that the complainant, within a certain time, pro- cure an order to revive the suit, or that, in default thereof, the defendant be at liberty to dravsr up such order.®'^ § 873. Form of order to plead or demur to bill of revivor. [Title of court and cause.] On filing the bill of revivor against N. O. and P. R., executors of C. D., and on motion of J. E., solicitor for complainant, it is ordered that the said defendants do, within ten days after service of a copy of said bill, plead or demur to the same, or that, in default thereof, this suit be revived and proceed in the names of the said N. 0. and P. R., executors as aforesaid, as defendants.^s § 874. Form of order to revive. [Title of court and cause.] On reading and filing an affidavit showing the default of the de- fendants N. 0. and P. R., executors of C. D., in not pleading or de- murring to the bill of revivor filed in this cause within the time required by the order of this court made on the day of last, and on motion of J. B., solicitor for the complainant, no one ap- pearing on the part of the defendants, it is ordered that this suit stand revived, and proceed against the said N. O. and P. R., executors as aforesaid, as defendants.^s »sHawley v. Bennett, 4 Paige (N. Y.) 163. 80 2 Barbour, Ch. Pr. 49; Bolton v. Bolton, 2 Sim. & S. 371; Troward v. Bingham, 4 Sim. 483. 87 2 Barbour, Ch. Pr. 49; Gordon v. Bertram, 1 Mer. 154; Whitebear V. Hughes, 1 Dickens, 283. Where a demurrer is overruled, the court should not order the demurrant to plead or answer the bill, but should proceed immediately to make the order reviving the decree. Nye v. Slaughter, 27 Miss. 638. See, for practice in the federal courts. Unit- ed States Equity Rule 56. 88 This form is taken from 2 Barbour, Ch. Pr. 540. 89 This form is taken from 2 Barbour, Ch. Pr. 540. (936) Oh. 47] BILL OF REVIVOR. § 877 S 875. Form of order on complainant's neglecting to obtain order to revive. [Title of court and cause.] On reading and filing an affidavit showing the default of the com- plainant in not obtaining an order to revive this suit, on motion of "W. H., solicitor for defendants, and on hearing J. E., solicitor for the •complainant. In opposition thereto, it is ordered that the complainant do proceed and obtain such order to revive within ten days after notice ■of this order, or that the bill of revivor filed in this cause be dismissed, with costs [or, that the said defendants be at liberty to draw up such order]. 100 § 876. Form of order to revive on answer consenting to revive. [Title of court and cause.] On reading and filing the answer of the defendant, C. D., to the bill of revivor filed herein, submitting that this suit and the pro- ceedings had therein may stand and be revived against him, and on reading due proof of service of notice of this motion on the solicitor tor the said defendant, and on motion of J. E., solicitor for the com- plainant, it is ordered that this suit and the proceedings had therein do stand and be revived against the said defendant, and be in the same plight and condition as the same were at the time of the abatement thsreof.ioi •§ 877. Hearing. The necessity for bringing a bill of revivor to a hearing de- pends upon whether the object of such bill has been accom- plished by the order to revive. If it merely prays that the ■suit be revived, a hearing will be unnecessary, unless an an- swer has been put in, contesting the complainant's right to revive, as the object will be elGEected by the order to revive. This will apply equally to cases in which the bill is filed by the complainant or his representatives, or after a decree by a de- fendant or his representatives. The mere order to revive will in such case be effectual against both complainants and defend- ants.-'"^ Upon an answer contesting the right to revive, the 100 This form is taken from 2 Barbour, Ch. Pr. 541. 101 This form is taken from 2 Barbour, Ch. Pr. 544. 102 2 Barbour, Ch. Pr. 56; Day v. Potter, 9 Paige (N. Y.) 645; Pruen V. Lunn, 5 Russ. 3. (937) S 877 EQUITY PLEADING AND PRACTICE. [Ch. 47 caus3 must proceed in the same manner as upon other bills, and the matters of fact he ascertained and those of law determined as usual. It is brought on in the usual mode, notwithstand- ing an order to revive has been obtained ; upon which the right to revive must be established, or the suit fails. If the decision is in favor of the bill, the order will be that the original suit stand revived and be carried on between the parties to such suit in like manner as between the parties to the original suit.^"* Whenever a bill contains supplemental matter, as well as matter of revivor, a hearing must be had, and it must be set down for hearing as weU against the party to the revivor as the party to the supplemental matter.^"* If the bill of re- vivor prays for an admission of assets by the representative of a deceased party, and the defendant admits assets, the cause may proceed against him upon the order of revivor merely. If he does not so admit, it must be heard for the purpose of ob- taining the necessary accounts of the estate to answer the de- mands against it.-^"" Where the decree in the original suit contains a specific direction, that direction cannot be executed by the mere order to revive, but a decree must be made in the revived suit for that purpose.^"® If the bill of revivor is filed before decree, it may, if the original cause has not been heard, be heard together with it. If such original cause has already been set dovm, it must be heard separately, and, in respect to costs, is considered as a separate cause until decree. -^"^ If there ha^ been a decree in the original cause, the bill of revivor must, if necessary to be heard, be heard separately, or it may be directed to come on for hearing with the cause upon further directions.-'"^ On a bill to revive a decree, matters litigated 103 2 Barbour, Ch. Pr. 56 ; 1 Hoffman, Ch. Pr. 383 ; Day v. Potter, 9 Paige (N. Y.) 645; Harris v. Pollard, 3 P. Wms. 348. 104 2 Barbour, Ch. Pr. 56; Lake v. Austwick, 4 Jur. 314. 105 2 Barbour, Ch. Pr. 57; Mitford, Eq. PI. 76. 106 2 Barbour, Ch. Pr. 57; Harries v. Johnson, 3 Younge & C. 583. 107 2 Barbour^ Ch. Pr. 57. 108 2 Barbour, Ch. Pr. 57. (938) Ch, 47] BILL OF REVIVOR. § 878 in ttie original suit cannot be retried except so far as they re- main undecided.^**' S 878. Effect of revivor. A bill of revivor by a defendant merely substantiates tbe suit, and brings before the court the parties necessary to see to the execution of the decree, to be the objects of its opera- tions, rather than to litigate the claims made by the several parties in the original pleadings, except so far as they remain undecided.^ ^^ Where the abatement is total, an order to re- vive places the suit, and all the proceedings in it, in precisely the same condition as at the time when the abatement took place. The new complainant may take the same proceedings that the original complainant might have taken.^^^ Generally, where an abatement is occasioned by the death of a defendant, the order to revive against his representatives will place the suit as fully in the same position, with regard to such represen- tatives, as can be done with reference to the change of the in- dividuals before the court. But while a new complainant may prosecute process of contempt against a defendant, taking it up where it left off at abatement, and, if issued before such abate- ment, such process will be revived by the order to revive the suit, such is not the case where the abatement is occasioned by 109 Winston v. McAlpine, 65 Ala. 377. The only questions that can be raised upon the bill of revivor are whether the complainant by whom the revivor is asked has succeeded to the rights of the de- ceased, or has become his legal representative, so as to enable him to continue the prosecution of the suit, if undetermined, or to enforce the decree already rendered, if unexecuted. Sharon v. Terry, 36 Fed. 337. "Nothing can be more clear than that, upon a bill to revive, the sole questions before the court are the competency of the parties and the correctness of the frame of the bill to revive." Bettes v. Dana, 2 Sumn. 383, Fed. Gas. No. 1,368; Newcombe v. Murray, 77 Fed. 493; Fretz V. Stover, 22 Wall. (U. S.) 198; Arnold v. Styles, 2 Blackf. (Ind.) 391; 2 Haddock, Ch. Pr. 403. 110 2 Barbour, Ch. Pr. 57; Mitford, Bq. PL 79. 1112 Barbour, Ch. Pr. 58; Mitford, Eq. PI. 78; Hyde v. Forster, 1 Dickens, 132; Gregson v. Oswald, 1 Cox, 343; Philips v. Derbie, 1 Dickens, 98. (939) §878 EQUITY PLEADING- AND PRACTICE. [Ch. 47 the death of the defendant, as the process, being personal, can- not be revived.^^^ Where there is a cross bill, a revivor of the original suit will not have the effect of reviving the cross suit. There must be a revivor in each cause.-' ^* 112 2 Barbour, Ch. Pr. 58; Hyde v. Forster, 1 Dickens, 1.S2. 113 2 Barbour, Ch. Pr. 58. (940) CHAPTER XLVIII. BILL, OF REVIVOR AND SUPPLEMENT. § 879. Definition and nature. A bill of revivor and supplement is a compound of a sup- plemental bill and a bill of revivor. It not only continues a suit which has abated, but supplies any defects in the original bill arising from subsequent events.^ If a suit becomes abated, and, by any act besides the event occasioning abatement, the rights of the parties are affected, as by a settlement or a devise, under certain circumstances, though a bill of revivor merely may continue the suit, so as to enable the parties to prosecute it, yet, to bring before the court the whole matter necessary for its consideration, the parties must, by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. Like- wise, if any other event occasioning an abatement is accom- panied or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to obtain the 1 Story, Bqi. PL § 387; Mitford, Bq. PL 80; Cooper, Bq. PL 84; 2 Barbour, Ch. Pr. 88; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334; East- man V. Batchelder, 36 N. H. 141, 72 Am. Dec. 295; Bowie v. Minter, 2 Ala. 406; Manchester v. Mathewson, 2 R. I. 416; Douglass y. Sherman, 2 Paige (N. Y.) 358; Pendleton y. Fay, 3 Paige (N. Y.) 204; Temple- man v. Steptoe, 1 Munf. (Va.) 339. "A bill of reyiyor and supplement is said to be a compound of a supplemental bill and bill of revivor, and it not only continues the suit which has abated, but supplies any defects in the original bill arising from subsequent events; and where a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental matter as is proper to be added, but the supplemental matter must have been newly discovered, and verified by affidavit, and may be demurred to by the defendant." Bowie v. Minter,^ 2 Ala. 406. (941) § 880 EQUITY PLEADING AND PRACTICE. [Ch. 48 full benefit of the suit beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill added to the bill of revivor.^ Where a suit abates by the death of one of the origi- nal defendants, and a third party subsequently acquires the interest of the deceased party by purchase from his heirs, be- fore the revival of the suit against such heirs, the suit must be revived by a bill of revivor and supplement against the purchaser.* Whenever a complainant has a right to revive a suit, he may add to the bill of revivor such supplemental mat- ter as is proper to be added.* Such supplemental matter must have been newly discovered, and must be verified by affidavit.' New matter may be introduced into a bill of revivor and sup- plement, so that defects in the original bill arising from sub- sequent events may be supplied; but this cannot be done with any effect where there is nothing in the original bill by which it may be sustained, for such original bill must show a case for the complainant, otherwise the new matter would be a new cause in court.® § 880. When such bill may be filed. A bill of revivor and supplement may be filed at any time, as a matter of right, within the ordinary periods of limitation. If no decree has been made, or if the supplemental matter has arisen since the decree, it is a matter of course to permit the complainants to file their bill of revivor and supplement, leav- ing the defendant to make his objection, in the usual mode, to 2 Story, Eq. Pi. § 387; Cooper, Bq. PI. 64; Mitford, Eq. PI. 70, 71; 2 Barbour, Cli. Pr. 88, 89; Merrewether v. Mellish, 13 Ves. 161; Ry- lands V. Latouche, 2 Bligh, 566; Russell v. Sharp, 1 Ves. & B. 500; Bampton v. Birchall, 1 Phillips, 568. 3 Harrington v. Becker, 2 Barbour, Ch. (N. Y.) 75. 4 2 Barbour, Ch. Pr. 88; Pendleton v. Fay, 3 Paige (N. Y.) 204. 5 Bowie V. Minter, 2 Ala. 406; Pendleton v. Fay, 3 Paige (N. Y.) 204. 6 Eastman v. Batchelder, 36 N. H. 141, 72 Am. Dec. 295; Bampton v. Birchall, 5 Beav. 330. See Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334; Pendleton v. Fay, 3 Paige (N. Y.) 204. (942) Ch. 48] REVIVOR AND SUPPLEMENT. § 882 the whole or any part of the bilU It would seem on principle that such a bill should not be filed without leave, though there are utterances to the contrary.® § 881. Frame of bill. A bill of revivor and supplement is merely a compound of a bill of revivor and a supplemental bill, and must be framed and proceeded upon in the same manner.® § 882. Form of bill of revivor and supplement. [Title of court and cause, and address to the court.] Complaining, shows unto your honor your orator A. B., of, etc.: That your orator did, on or about , exhibit his original bill of complaint in this honorable court against C. D., of, etc., thereby [set forth so much of the bill, with the prayer, as may be necessary] ; and the said C. D., being duly served with process of subpoena for that purpose, appeared and put in his answer thereto, and, your orator having replied thereto, witnesses were examined in said cause on both sides, as by the said pleadings and other proceedings in the said cause, now remaining as of record in this honorable court, reference there- unto being had, will more fully appear. And your orator further shows unto your honor that, before any further proceedings were had in the said cause, and on or about , the said C. D. departed this life without issue, leaving G. H., of, etc., a defendant hereinafter named, his heir at law; and the said suit and the proceedings therein having become abated by the death of the said C. D., your orator, as he is advised, is entitled to have the same revived against the said G. H. as the heir of the said C. D., and restored to the same condition in which they were at the time of his death. And your orator, by way of supplement, showeth unto your honor that the said C. D. in his lifetime duly made and published his last will and testament in writing, in such manner as is by law required 7 Pendleton v. Fay, 3 Paige (N. Y.) 204; Young v. Kelly, 3 App. D. 0. 296. See Story, Eq. PI. § 831; HoUingshead's Case, 1 P. Wms. 742; Perry v. Jenkins, 1 Mylne & C. 122. s Pendleton v. Fay, 3 Paige (N. Y.) 204; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. See, for practice in federal courts, United States Equity Rule 56. A bill of revivor and supplement in the nature of a bill of review must be founded upon an affidavit of the discovery of new matter, and cannot be filed without the special leave of court 2 :Barbour, Ch. Pr. 89; Pendleton v. Fay, 3 Paige (N. Y.) 204. 9 2 Barbour, Ch. Pr. 89; Cooper, Eq. PI. 84. (943) § 882 EQUITY PLEADING AND PRACTICE. [Ch. 48. for passing real estates, bearing date, etc., and thereby devised all his real estate to J. T. and G. M., and their heirs forever, as in and by the said last will and testament, reference being thereunto had, will more fully appear. And your orator further shows that the said C. D. departed this life at the time above specified, without having altered or revoked his. said will, and that the said J. T. and G. M. respectively claim to be interested in the said messuages, lands, and tenements by virtue of the said will; and therefore your orator is, as he is advised, entitled to the benefit of the said suit against them, as being or claiming to be so interested, and to the like relief as he would have been entitled to against the said C. D. if he were still living, and the said G. H., as such heir at law as aforesaid, at times disputes the validity of the said will. To the end, therefore, that the said suit and proceedings so abated as aforesaid may stand revived against the said G. H. as heir at law as aforesaid, and be in the same plight and condition in which they were at the time of the death of the said C. D.. or that the said G. H. may show good cause to the contrary, and that the said G. H., J. T., and G. M. may, upon their several and respective corporal oaths, full, true, direct, and perfect answer make to the several matters aforesaid [if answer under oath is not desired, insert waiver as in original bill, § 69, supra], and more especially that they may answer and set forth, in manner aforesaid, whether the said C. D. did not, before his death, duly make and publish his last will and testament in writing, of the date or to the purport or effect aforesaid, so far as the same is hereinbefore set forth, or of any other date, or to such, or some other, and what effect. And whether they respectively, or one and which of them, do or doth not claim to be in some, and what, manner interested in the said real estate, under and by virtue of the said will, or how otherwise. And that your orator may have the benefit of the said suit and the proceedings therein against the said G. H., J. T., and G. M., who claim to be respectively interested as aforesaid, and such relief as, if the said C. D. were still living, he would be entitled to against him: May it please your honor to grant unto your orator the people's writ of subpoena to revive and answer, issuing out of and under the seal of this court, to be directed to the said G. H., thereby commanding him, at a certain day and under a certain penalty, therein to be inserted, personally to be and appear before your honor in this hon- orable court, then and there to answer the premises, and to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him, and be in the same plight and condition as the same were at the time of the abatement thereof; and further to stand to and abide such order and decree in the premises, as to your honor shall seem meet. (944) Ch. 48] REVIVOR AND SUPPLEMENT. | 884 And may it please your honor to grant unto your orator the people's writ of subpoena, issuing out of and under the seal of this court, di- rected to the said J. T. and G. M., thereby commanding them, and each of them, at a certain day and under a certain penalty, therein to be inserted, personally to be and appear before your honor in this honorable court, and then and there full, true, direct, and perfect an- swer make to all and singular the premises, and further to stand to, perform, and abide such order and decree therein as to your honor shall seem meet. And your orator, etc. A. B., R. S., Complainant. Solicitor for Complainant. [Add verification.] 10 § 883. Defenses. A bill of revivor and supplement is liable to tbe same de- scription of defense as the bills, if separate, would be subject to.-^^ Thus, a demurrer for multifariousness in praying to revive three distinct suits is good.^^ If matters added by way of supplement to a bill of revivor be irrelevant or improper, the defendant may always avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence.-'^ Where supplemental matter is improperly inserted in a bill of revivor and supplement, it does not authorize the defendant to demur to the whole bill. He should demur to the supple- mental matter only.-*^* § 884. Proceedings upon such bill. In all cases where there is a bill of revivor and supplement, the case must be set down for hearing against all the parties, though the bill is only a bill of revivor against one, and an or- der to revive has been obtained. ^^ 10 This form is taken from 2 Barbour, Ch. Pr. 559. 11 2 Barbour, Ch. Pr. 89. "McDermott v. McGown, 4 Edw. Ch. (N. Y.) 592. 13 Pendleton v. Fay, 3 Paige (N. Y.) 204. 14 Randolph v. Dickerson, 5 Paige (N. Y.) 517. 15 2 Barbour, Ch. Pr. 89; Lake v. Austwick, 4 Jur. 314. (945) Equity. — 60. § 885 EQUITY PLEADING AND PRACTICE. [Ch. 48 § 885. Bill in the nature of a bill of revivor and supplement. An original bill in the nature of a bill of revivor and supple- ment is a combination of an original bill in the nature of a bill of revivor and a supplemental bill, and, wherever it is prop- er to revive a suit by an original bill in the nature of a bill of revivor, the complainant may add to such bill such supple- mental matter as is proper to be added.^® Such a bill is an orig- inal bill in the nature of a bill of revivor, so far as it seeks to re- vive or continue the former proceeding, in the name of a new complainant, upon whom the right to continue the proceedings is not cast by the operation of law merely, but upon whom the right is conferred by the operation of law in connection with an alleged act of the former complainant, the validity of which may be controverted by the defendant ; and it is a supplemental bill so far as it seeks to supply defects in a suit which has not actually abated by bringing the proper parties before the court to remedy such defects, so that the original suit may be con- tinued and proceeded in to a decree or final termination.^'' Where the complainant in a suit assigns all his interest there- in to a third person, and then dies, his grantee cannot revive and continue the proceedings by a simple bill of revivor. It can only be done in such case by an original bill in the nature of a bill of revivor and supplement ; and where a defendant in such original suit is entitled to revive the proceedings therein, he must do it upon a similar bill.-'* Where a complainant in an original bill dies, a person not succeeding to the rights of the decedent by mere operation of law, but as devisee, cannot file a bill of revivor, but can only have the benefit of the original proceedings, and avail himself of new facts, necessary to be stated, by an original bill in the nature of a bill of revivor and supplement.-'* And so where, on the marriage of a female 16 See Story, Eq. PI. § 385. 17 Sedgwick v. Cleveland, 7 Paige (N. Y.) 293. 18 Anderson v. White, 10 Paige (N. Y.) 575. See, also. Perking v. Perkins, 16 Mich. 162; Webster v. Hitchcock, 11 Mich. 56; Greenleaf V. Queen, 1 Pet. (U. S.) 138. 19 Brady v. McCosker, 1 N. Y. 214. (946) Ch. 48] REVIVOR AND SUPPLEMENT. § g83 complainant, her property becomes vested by settlement in trus- tees, or if any third persons, such as trustees or issue, are made interested in it, a mere bill of revivor will not do; but the in- terest of such third persons must be brought forward by an original bill in the nature of a supplemental bill and a bill of 20 Welford, Bq. PI. 220, citing Merrewether v. Mellish, 13 Ves. 161; Mancliester v. Mathewson, 2 R. I. 416; Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 312. It has been said that, where the complain- ant assigns his interest in the suit pendente lite, if the defendant wishes to have the suit brought to a termination, his proper course is to apply to the court for an order that the assignee proceed to file a bill in the nature of a bill of revivor and supplement. Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. The case of Sedgwick v. Cleveland, supra, in support of the above statement, cites Porter v. Coz, 5 Madd. 80, in which case the complainant became a bankrupt, pending the suit. This practice has been followed in Michigan. "By the assign- ment of all her interest to the present complainant after the suit was so revived, the assignee became a necessary party complainant, and the suit could no longer be prosecuted in her name after the assign- ment should be brought to the notice of the court. Wallace v. Dun- ning, Walk. (Mich.) 416. If the assignment did not operate strictly as an abatement of the suit, its effect was much the same, as it left no party complainant before the court competent to prosecute it. The only mode in which the assignee, the present complainant, could re- vive or get the benefit of the suit, was by filing an original bill in the nature of a bill of revivor and supplement, stating the bill and proceedings in the original suit, and the assignment to himself, and asking that the suit might be continued or revived for his benefit. So far as the present bill is confined to these objects, it was the necessary and proper course to give him the benefit of the former suit. In these respects the bill is not a mere supplemental bill, but an original bill in the nature of a bill of supplement and revivor. Daniell, Ch. Pr. 1666, 1685-1688, 1697, 1698; Sedgwick v. Cleveland, 7 Paige (N. Y.) 293. So far as it is based upon and recites the original cause, it is in the nature of a supplemental bill; so far as it seeks t6 revive or restore the original cause which had become defective by the assign- ment of the interest of the administratrix, it would seem to be in the nature of a bill of revivor; but so far as it relates to the assignment and the present complainant, it is entirely original." Webster v. Hitch- cock, 11 Mich. 56. See, also, Perkins v. Perkins, 16 Mich. 162. See, also, supra, §§ 44, 828, for consideration of proceedings upon assignment pendente lite. In a New York case it was said that in all cases where, by the death of a party, the suit is abated, and his interest or title to (947) § 886 EQUITY PLEADING AND PRACTICE. [Ch. 48 § 886. Filing such bill. It is said that a bill in the nature of a bill of revivor and supplement may be filed by the assignee of the complainant without leave of court previously obtained.^^ the property in controversy is transmitted by a devise, or in any other manner, so that the title, as well as the person entitled, may be the subject of litigation, an original bill in the nature of a bill of revivor and supplement must be filed, on which the question of title may be put in issue and litigated. Douglass v. Sherman, 2 Paige (N. Y.) 358; Manchester v. Mathewson, 2 R. I. 416; Huet v. Say, Sel. Cas. t. King, 53; Backhouse v. Middleton, 1 Ch. Cas. 174. But see post, § 969 et seq. 21 Sedgwick v. Cleveland, 7 Paige (N. Y.) 290; Webster v. Hitch- cock, 11 Mich. 56. But see supra, § 880. (948) CHAPTER XLIX. CROSS BILLS. I 887, Definition and general nature. A cross bill is a bill brought by a defendant or defendants in a suit against the complainant in the same suit, or against other defendants in the same suit, or against both, touching the mat- ters in question in the original bill.^ It is usually brought either to obtain a necessary discovery of facts in aid of the defense to the original biU, which use arose from the equity rule that the complainant could not be examined as a witness in the suit, or else to obtain full relief to all parties touching the mat- ters of the original bill.^ As a general rule a cross bill is iMitford, Eq. PI. 80, 81; Story, Eq. PI. § 389; Kennedy v. Kennedy, 66 111. 190; Thompson v. Shoemaker, 68 111. 257; Millsaps v. Pfeiffer, 44 Miss. 805; Ray v. Home & Foreign Investment & Agency Co., 106 Ga. 492, 32 S. E. 603; Blythe v. Hinckley, 84 Fed. 233; Ayres v. Carver, 17 How. (U. S.) 591; Book v. Justice Min. Co., 58 Fed. 827, citing, ap- provingly, Foster, Fed. Pr. § 170; Shields v. Barrow, 17 How. (U. S.) 145. 2 Story, Eq. PI. ,§§ 389, 390; Kennedy v. Kennedy, 66 111. 190; Pig- Sott v. Williams, 6 Madd. 95; City of Colchester v. , 1 P. Wms. 595; Gordon v. Gordon, 3 Swanst. 474; Rothschild v. Reg., 3 Younge & C. 595; Spragg v. Corner, 2 Cox, 109; Ayres v. Carver, 17 How. (U. ,S.) 591; Morgan's Louisiana & Texas Railroad & Steamship Co. v. Texas Cent. Ry. Co., 137 U. S. 171; Blythe v. Hinckley, 84 Fed. 233; Ayers v. City of Chicago, 101 U. S. 187; Hogg v. Hoag, 107 Fed. 807. A cross bill may be filed to enable the defendant to discover evidence In order to defend against that which is alleged against him, but a cross bill not seeking affirmative relief not attainable in an answer will not lie when the defendant filing it seeks no discovery, save where such cross bill is used to assert matter arising subsequent to the filing of the bill. Newberry v. Blatchford, 106 111. 584; Morgan v. Smith, 11 111. 194; Jenkins v. International Bank, 111 111. 462. "When a decree on the original bill will not determine the litigation, (949) §888 EQUITY PLEADING AND PRACTICE. [Ch. 49 also necessary to enable a defendant to have a decree against a co-defendant.^ § 888. Where matter available by answer, cross bill improper. If the facts which the defendant wishes to set up destroy the complainant's cause of action by their own force and operation, they constitute a defense, and should be set up by answer or plea; but if they only furnish a reason why the court should make a decree depriving the complainant of his cause of action, they must be set up by cross bill.* The object of a cross bill being to enable the defendant to obtain affirmative relief, if the facts alleged in it are nothing more than a defense to the case made by the bill, and, if proved, could afford the defendant no affirmative relief, the cross bill will be obnoxious to a de- or -vrhen it is necessary to bring all the parties before the court, so that complete justice may be done the defendants, or part of them, by granting them affirmative relief, as well as by granting complain- ant the relief sought by the bill, a cross bill is necessary. Blythe v. Hinckley, 84 Fed. 233; Erlinger v. Boul, 7 111. App. 40. 3 Morton v. New Orleans & S. Ry. Co. & Immigration Ass'n, 79 Ala. 590; Howe v. South Park Com'rs, 119 111. 101, 7 N. E. 333; Brinkerhoff V. Franklin, 21 N. J. Eq. 334. See supra, § 708. "Wherever it is nec- essary to bring all the equities of all the parties fully before the court, that even and complete equity may be done as well in favor of the defendant as of the complainant, it becomes necessary to file a cross bill; and this may be done by any or all of the defendants against any or all of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may re- quire. Story, Eq. PL § 392; Andrews v. Kibbee, 12 Mich. 94, 83 Am. Dec. 766; Farmers & Mechanic's Bank of Michigan v. Bronson, 14 Mich. 371." Feige v. Babcock, 111 Mich. 538, 70 N. W. 7. *Langdell, Eq. PI. § 155, from which the foregoing is taken verbatim; Ward v. Eyles, Mos. 382; Bogle v. Bogle, 3 Allen (Mass.) 158; Bullock v. Brown, 20 Ga. 472; Chicago & G. W. R. Land Co. v. Peck, 112 111. 408; Freeland v. South Penn Oil Co., 189 Pa. 54, 41 Atl. 1000. swing V. Goodman, 75 111. 159; Hook v. Richeson, 115 111. 431, 5 N. E. 98; Braman v. Wilkinson, 3 Barb. (N. Y.) 151; McDaniel v. Cal- lan, 75 Ala. 327; Buckingham v. Wesson, 54 Miss. 526; American & General Mortg. & Inv. Corp. v. Marquam, 62 Fed. 960; Newberry v. (950) Ch. 49] CROSS BILLS. I 889 § 889. Matter occurring after cause at issue set up by cross bill. A defendant cannot avail himself, by plea or answer, of a matter of defense which arises after the cause is at issue. He must make such defense the subject of a cross bill.® Thus Blatchford, 106 111. 584; Glenn v. Clark, 53 Md. 580; Weed v. Smull, 3 Sandf. Cli. (N. Y.) 273; Montgomery v. Olwell, 1 Tenn. Ch. 169; Wight V. Downing, 90 111. App. 1; Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143. "There are some well-recognized exceptions to this rule, where a defendant may have a decree in his favor without a cross bill, as on a bill for specific performance, where the defendant sets up in the answer and proves an agreement different from the one sought to be enforced; on a bill for accounting, if a balance is found due the defendant; and on a bill for partition, where the defendant claims the same relief as is sought by the original bill." Freeland v. South Penn Oil Co., 189 Pa. 54, 41 Atl. 1000; McClaskey v. Barr, 48 Fed. 130; Story, Eq. PI. § 394; Coxe v. Smith, 4 Johns. Ch. (N. Y.) 271. A cross bill is not necessary to enable the defendant to avail himself of a set- off in a foreclosure suit. McClaskey v. Barr, 48 Fed. 130; Jennings v. Webster, 8 Paige (N. Y.) 503. The defendant must proceed by cross bill if, in addition to a denial of the decree for partition, and the ad- mission of the bill, he seeks further and affirmative relief on his part, by a decree for the transfer to him of the legal title to the whole premises, or if a discovery is necessary to establish his equitable de- fense. German v. Machin, 6 Paige (N. Y.) 288; McClaskey v. Barr, 48 Fed. 130. It is held in McClaskey v. Barr, 48 Fed. 130, that when, in a partition suit in the federal court, title to an interest in the rents is established by persons not in possession, and the defendants wish to claim compensation for improvements, such claim must be set up by cross bill. See, for consideration of this question, Griffith V. Security Home Building & Loan Ass'n, 100 Tenn. 410, 45 S. W. 670, citing many authorities. Story, Eq. PI. § 393; Blythe v. Hinckley, 84 Fed. 233; Jenkins v. International Bank, 111 111. 470; Ferris v. McClure, 36 111. 77; Hayne V. Hayne, 3 Ch. R. 19; Nash v. Flyn, 1 Jones & L. 162; Richards v. Bayly, 1 Jones & L. 120; 2 Barbour, Ch. Pr. 128; Cooper, Eq. PI. 86, 87; Miller v. Fen ton, 11 Paige (N. Y.) 18; Burdell v. Burdell, 2 Barb. (N. Y.) 473; Lambert v. Lambert, 52 Me. 544. See supra, § 305. "The chancellor, in Smith v. Smith, 4 Paige (N. Y.) 438, expresses an opinion that the defense may be set up on supplemental answer, but the point was not before him, and his remark was obiter, while, on the other hand. Story and Lord Redesdale, both good authority, lay down the rule as I have stated it." Burdell v. Burdell, 2 Barb. (N. Y.) 473. The fact that complainant has parted with his title to the land since the filing of the answer cannot be brought forward by the defendant by a sup- (951) § 891 , EQUITY PLEADING AND PRACTICE. [Ch. 49 where, in a bill to redeem a mortgage, an assignment of all the interest of the complainant in the premises mortgaged is made after answer filed, the defendant can make such assignment available by a cross bill.'' § 890. Jurisdiction of cross bills. It seems that, under the English chancery practice, it was not indispensable that a cross bill should be filed in the same court in which the original bill was filed; as, for example, if the original bill had been brought in the court of exchequer, while that court had equity jurisdiction, the cross bill might be brought in the court of chancery.* Such a practice does not obtain in the United States.* § 891. Necessity for cross bill. A cross bill not in the nature of a plea puis darrein continu- ance is necessary only where the defendant desires some affirm- ative relief beyond such as would necessarily follow the dismiss- al of the bill.-'" Where the defendant seeks affirmative relief, he must file a cross bill, and an answer will not avail his pur- pose.^^ plemental answer. The proper mode is to file a bill in the nature of a supplemental bill, whicli is in the nature of a plea puis darrein continuance at common law. Pue v. Pue, 4 Md. Ch. 387. 'Lambert v. Lambert, 52 Me. 544. See Scott v. Milliken, 60 111. 108; Story, Eq. PI. (9th Ed.) § 399, note (a). See, also, supra, §§ 305, 394. See Hook v. Richeson, 115 111. 431, 5 N. E. 98, for consideration of neces- sity of filing cross bill. s Story, Ea. PI. § 400; Cooper, Eq. PI. 87; Mitford, Eq. PI. 80, note; Parker y. Leigh, 6 Madd. 115. 9 Story, Eq. PI. § 400; Neal v. Foster, 34 Fed. 496; Carnochan v. Christie, 11 Wheat. (U. S.) 446. loEdgerton v. Young, 43 111. 464; Pattison v. Hull, 9 Cow. (N. Y.) 747; Nelson v. Lowndes County, 93 Fed. 538; Moran y. Schooling's 'Adm'r, 29 U. S. App. 71, 64 Fed. 499; Book v. Justice Min. Co., 58 Fed. 827. iiTarleton v. Vietes, 6 111. 470; McPherson v. Cox, 96 U. S. 404; Ketchum v. Creagh, 53 Ala. 224; Tallman v. Wallack, 54 N. J. Eq. 655, 33 Atl. 1059; Mrzena v. Brucker, 3 Tenn. Ch. 161; Vary v. Shea, 36 Mich. 388; Millsaps v. Pfeiffer, 44 Miss. 805. Where the defendant's (952) Ch. 49] CROSS BILLS. § 893 § 892. Treating answer as cross bill. In some cases an answer has been allowed to stand as a cross bill, and tbe practice in some jurisdictions is to file an answer in the nature of a cross bill. It is held that such an answer, after responding to the bill, must state the new matter for affirmative relief with the same particularity and certainty, un- der the principles of equity pleading, as are required in a formal cross bill stating a case for equitable relief touching the matter in question in the bill, and not one foreign to it, and must name persons interested in this new matter, and make them parties by calling for process against them, and must contain a prayer for relief, as a cross bill would in the case.^^ § 893. Decree between co-defendants. Concerning the right of the court to make a decree between co-defendants, it is said that, where a case is made out between defendants by evidence arising from pleadings and proofs be- tween the complainants and the defendants, a court of equity is entitled to make a decree between the defendants, and is bound case entitles him to affirmative relief, lie must file his cross bill, prop- erly framed to meet his case, whether the complainant's bill be re- tained or dismissed. When the original bill is dismissed, chancery practice does not authorize the court to retain the answer, and, even if it did, specific relief cannot be decreed thereon. McConnel v. Smith, 23 111. 611. For illustration of when cross bill is necessary, see Carnochan V. Christie, 11 "Wheat. (U. S.) 446; Meissner v. Buek, 28 Fed. 161; Cotton V. Scott, 97 Ala. 447, 12 So. 65; Pike v. Underbill's Adm'r, 24 Ark. 124; Kimberly v. Fox, 27 Conn. 307; Sanford v. Cloud, 17 Fla. 557; Bay v. Shrader, 50 Miss. 326; Duryee v. Llnsheimer, 27 N. J. Eq. 366; Ritchie v. McMuUen, citing, approvingly, Foster, Fed. Pr. § 172 ; Hubbard v. Turner, 2 McLean, 519, Fed. Cas. No. 6,819. 12 Martin v. Kester, 46 W. Va. 438, 33 S. E. 238; GofE v. Price, 42 W. Va. 384, 26 S. E. 287; Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. 282. An answer in the nature of a cross bill which sets up no right to any relief, needs no answer. Horton v. Mercier, 31 Ga. 225. For instances of relief held to be proper under an answer, see Northern R. Co. V. Ogdensburg & L. C. R. Co., 18 Fed. 815; Alston v. Alston, 34 Ala. 15; Nyburg v. Pearce, 85 111. 393; Redfield v. Gleason, 61 Vt. 220, 17 Atl. 1075, 15 Am. St. Rep. 889. See, for practice in Michigan, Coach V. Adsit, 97 Mich. 563, 56 N. "W. 937. (953) §894 EQUITY PLEADING AND PRACTICE. [Ch. 49 to do so.-'* But sucIl a decree between the defendants, to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the complainant and one or more of the defendants.-'* It has also been held that, after the parties have had a hearing and an opportunity of as- serting their rights, thaj are concluded by the decree as far as it affects rights presented to the court, and passed upon by its decree, even though all were defendants, and as between them no issue was raised, and no adverse proceedings were had.-'^ § 894. Relief sought must be equitable. A cross bill being generally considered as a defense to the original bill, or as a proceeding necessary to the complete de- termination of a matter already in litigation, the complainant is not, at least as against the complainant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court.^® Where the cross bill seeks not only a discovery, 13 Louis V. Bro-wn Township, 109 IT. S. 162; Corcoran v. Chesapeake & Ohio Canal Co., 94 U. S. 741; Chamley v. Dunsany, 2 Schoales & L. 718; Elliott v. Pell, 1 Paige (N. Y.) 263; Vanderveer v. Holcomb, 17 N. J. Eq. 90; Conry v. Caulfield, 2 Ball & B. 255. 14 Elliott V. Pell, 1 Paige (N. Y.) 263; Vance v. Evans, 11 W. Va. 370. See Hopkins v. Lee, 6 Wheat. (U. S.) 109; Bank of United States v. Beverly, 1 How. (U. S.) 134; Crandall v. Gallup, 12 Conn. 365; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 236. 15 Louis V. Brown Township, 109 U. S. 162; Corcoran v. Chesapeake & Ohio Canal Co., 94 U. S. 741. This rule, however, is not well es- tablished, and it is said by other courts, in jurisdictions which have laid down the foregoing rule, that it is settled that one defendant cannot have a decree against a co-defendant without a cross bill -with proper prayer and process or answer, as in the original suit. Smith V. Woolfolk, 115 U. S. 143, citing Cullum v. Brwin, 4 Ala. 452; Cum- mings' Heirs v. Gill's Heirs, 6 Ala. 562; Shelby v. Smith's Heirs & Executors, 2 A. K. Marsh. (Ky.) 504; Walker v. Byers, 14 Ark. 246. See, also, Veach v. Rice, 131 U. S. 293; Commercial Bank of Augusta V. Sandford, 103 Fed. 98. 16 Story, Eq. PI. § 399; Mitford, Eq. PI. 81; 2 Barbour, Ch. Pr. 131; Burgess v. Wheate, 1 Eden, 190; Doble v. Potman, Hardres, 160; Nel- son V. Dunn, 15 Ala. 501; Davis v. Cook, 65 Ala. 617; Thomason v. Neeley, 50 Miss. 310; Sterl v. Sterl, 2 111. App. 223; Field v. SchlefEe- lin, 7 Johns. Ch. (N. Y.) 250. See Whittemore v. Patten, 84 Fed. 51; (954) Ch. 49] CEOSS BILLS. i^ 895 but relief, care should be taken that the relief prayed by the cross bill should be equitable relief, for to this extent it may be considered as not purely a cross bill, but in the nature of an original bill, seeking further aid from the court, and then the relief ought to be such as, in point of jurisdiction, it is compe- tent for the court to give.^''' A cross bill will be open to a de- murrer when it seeks relief which is of an equitable nature, and does not contain all the proper allegations which confer an equitable title to such relief upon the parties.^* § 895. Cross bill must be germane to original bill. It is a well-settled rule of chancery practice that matters sought to be investigated by cross bill must be germane to the subject involved in the original bill. jSTew and distinct mat- ters, not embraced in the original suit, should not be intro- duced.^* A cross bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the suit.^" But it is not essential that the North Britisli & Mer. Ins. Co. v. Lathrop, 70 Fed. 429, citing, approv- ingly, "Washington R. R. v. Bradleys, 10 Wall. (U. S.) 299, and Beach, Mod. Bq. Pr. § 125. iTMitford, Eq. PI. 81; 2 Barbour, Ch. Pr. 131; Story, Bq. PL § 398; Tobey v. Foreman, 79 111. 489; Calverley v. Williams, 1 Ves. Jr. 211; Griffin v. Fries, 23 Fla. 173, 2 So. 266, 11 Am. St. Rep. 351; Ray v. Home & Foreign Investment & Agency Co., 106 Ga. 492, 32 S. E. 603. 18 Story, Eq. PI. § 630; Tobey v. Foreman, 79 111. 489; Mason v. Gard- iner, 4 Brown, Ch. 436; Benfield v. Solomons, 9 Ves. 84; Lautz v. Gor- don, 28 Fed. 264; Trapnall v. Hill, 31 Ark. 345; Hughey v. Bratton, 48 Ark. 167, 2 S. W. 698; Wright v. Frank, 61 Miss. 32. 19 Story, Bq. PI. § 401; Galatian v. Brwin, Hopk. Ch. (N. Y.) 48; Row- an V. Sharp's Rifle Mfg. Co., 33 Conn. 1; 2 Barbour, Ch. Pr. 130; Ayres V. Carver, 17 How. (U. S.) 591; Hackley v. Mack, 60 Mich. 591, 27 N. W. 871; Hogg V. Hoag, 107 Fed. 807; Wight v. Downing, 90 111. App. 1; Ray V. Home & Foreign Investment & Agency Co., 106 Ga. 492, 32 S. B. 603; Thruston v. Big Stone Gap Imp. Co., 86 Fed. 484; Springfield Milling Co. v. Barnard & Leas Mfg. Co., 49 U. S. App. 438, 81 Fed. 261. 20 Davis V. American & Foreign Christian Union, 100 111. 313, citing Story, Eq. PL § 401; Gilmer v. Felhour, 45 Miss. 627; Pindall v. Trevor, 30 Ark. 249; Kingsbury v. Buckner, 134 U. S. 650; Beck v. Beck, 43 (955) § 897 EQUITY PLEADING AND PRACTICE. [Ch. 49 facts showing a right to relief sought by one defendant against another should appear from the original bill.^^ While the alle- gations of the cross bill must relate to the subject-matter in controversy on the original bill, they are not restricted to the issues in the original cause.^^ The complainant in such bill should not contradict the assertions in his answer in the orig- inal suit.^^ § 896. Effect of filing cross bill where original bill lacks equity. Where the original bill lacks equity because there is an ade- quate remedy at law, a cross bill containing matters of equitable cognizance may cure the defect; but where the cross bill only seeks such relief as can be had at law, it does not cure such de- fect.2* § 897. Who may file cross bill. A cross bill may be filed by all or any of the defendants against all or any of the complainants, or by a part of the de- N. J. Eq. 39, 10 Atl. 155; Slason v. WrigM, 14 Vt. 208; Riggs v. Arm- strong, 23 W. Va. 760; Krueger v. Ferry, 41 N. J. Eq. 432, 5 Atl. 452; Blythe v. Hinckley, 84 Fed. 233. 21 Dawson v. Vickery, 150 111. 398, 37 N. B. 910; Robins v. Swain, 68 111. 197. 22 Hurd V. Case, 32 111. 45, 83 Am. Dec. 249 ; Follansbee v. Scottish- American Mortgage Co., 7 111. App. 486; Nelson v. Dunn, 15 Ala. 501. See Cartwrigbt v. Clark, 4 Mete. (Mass.) 104; Carnochan v. Christie, 11 Wheat. (U. S.) 466; Cross v. De Valle, 1 Wall. (U. S.) 5; May r. Armstrong, 3 J. J. Marsh. (Ky.) 260. 23 Hudson V. Hudson, 3 Rand. (Va.) 117; Dill v. Shahan, 25 Ala. 694, 60 Am. Dec. 540; Jackson v. Grant, 18 N. J. Eq. 145; Draper v. Gor- don, 4 Sandf. Ch. (N. Y.) 210; Ragor v. Brenock, 175 111. 494, 51 N. B. 888. 24 Sale V. McLean, 29 Ark. 612; Wachter v. Blowney, 104 111. 610; Beach, Mod. Eq. Pr. § 425; Houston v. Maddux, 179 111. 377, 53 N. B. 599. See, also, Cockrell v. Warner, 14 Ark. 558. See, however, Loomis V. Freer, 4 111. App. 547, and Dows v. City of Chicago, 11 Wall. (U. S.) 108, holding that, where the original bill is dismissed for want of jurisdiction, the cross bill must follow the fate of the original bill. See, also, Dill v. Shahan, 25 Ala. 694; Carroll v. Richardson, 87 Ala. 605, 6 So. 342. (956) Ch. 49J CROSS BILLS. § 898 fendants against the complainants, or part of them, and also against co-defendants, or a part of them, as the nature of the case may require. ^^ It is a general rule that a cross bill cannot be filed by any persons except parties to the original suit."® It is held in Illinois that a party brought in as defendant to a cross bill may in turn exhibit his cross bill, where it is proper for the purposes of doing complete justice and terminating the litigation. 2'' § 898. Parties defendant. Parties defendant are as necessary to cross bills as to orig- inal bills.^® The complainant in the original suit should be made a defendant to the cross bill in all cases.^® In some juris- dictions it is held that persons not parties to the original bill may be brought into the litigation by means of a cross bill.*" 25Mitford, Bq. PI. 81; Ballance v. UnderMll, 4 111. 453; 1 Smith, Ch. Pr. 459; Jones v. Smith, 14 111. 229; Fletcher v. Wilson, Smedes & M. Ch. (Miss.) 376. 26-Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Payne v. Cowan, Smedes & M. Ch. (Miss.) 26. See Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686. But it is said that a purchaser pendente lite from a party to the suit may file a hill in the nature of a cross hill, to make himself a party to the suit, so as to have his rights pro- tected. Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106. Under the prac- tice in the federal courts, one claiming an interest in the subject of litigation cannot properly be made a party defendant against the ob- jection of complainant, and hence a cross bill filed by a person thus coming into the cause should be dismissed. Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837. 27 Blair v. Illinois Steel Co., 159 111. 350, 42 N. E. 895. 28 Washington A. & G. R. Co. v. Bradleys, 10 Wall. (U. S.) 299. 29 Cooper, Eq. PI. 45; 2 Daniell, Ch. PI. & Pr. (5th Ed.) 1548, 1549. See Putnam v. New Albany, 4 Biss. 465, Fed. Cas. No. 11,481; Cox v. Price (Va.) 22 S. E. 512; Cleveland v. Chamblis, 64 Ga. 352. 30 Jones V. Smith, 14 111. 229; Hurd v. Case, 32 111. 45; Blodgett v. Hobart, 18 Vt. 414; Brandon Mfg. Co. v. Prime, 14 Blatchf. 371, Fed. Cas. No. 1,810, and authorities therein cited; Kanawha Lodge v. Swann, 37 W. Va. 176, 16 S. E. 462; Green v. Stone, 54 N. J. Eq. 401, 34 Atl. 1099; Haberman v. Kaufer, 60 N. J. Eq. 271, 47 Atl. 48; Curd v. Lewis, 1 Dana (Ky.) 351; Wickliffe v. Clay, 1 Dana (Ky.) 585; Sharp v. Pike's Adm'r, 5 B. Men. (Ky.) 155; Coster's Bx'rs v. Bank of Georgia, 24 Ala. 37. It is not introducing new and independent matter into the cross (957) § 899 EQUITY PLEADING AND PRACTICE. -[Ch. 49 In other jurisdictions it is held that new parties cannot be intro- duced by cross bill.^^ If the interests of the defendant be such that it is necessary for him to raise issues not within the scope of the complainant's bill, but which are essential to the estab- lishment of his rights, and to that end new parties must neces- sarily be brought into the litigation, he cannot raise such issues by cross bill, but must file an original bill.^^ § 899. Filing the cross bill. The practice relative to the necessity of obtaining leave to file a cross bill is not uniform. In some jurisdictions, leave to file a cross bill is a matter in the discretion of the court.^* The bill, and new parties for the purpose of answering that matter, hut it is presenting new facts connected with the suhject-matter of the original bill, and answering it, and new parties whose interests may be likewise affected by the new allegations. Jones v. Smith, 14 111. 229. 31 Shields v. Barrow, 17 How. (U. S.) 130; Richman v. Donnell, 53 N. J. Eq. 32, 30 Atl. 533; Bishop v. Miller, 48 Miss. 364; Oswald v. Givens, 11 Rich. Eq. (S. C.) 132; Cobb v. Baxter, 1 Tenn. Ch. 405; Thruston v. Big Stone Gap Imp. Co., 86 Fed. 484. The case of Shields V. Barrow, 17 How. (U. S.) 130, which has been followed in some jurisdictions, is considered in Brandon Mfg. Co. v. Prime, 14 Blatchf. 371, Fed. Cas. No. 1,810, and its expression to the effect that persons not parties to the original bill cannot be brought into the litigation by means of a cross bill said to be mere dictum. See Derbyshire v. Jones, 94 Va. 140, 26 S. B. 416, considering the division of opinion on this subject. 32 Richman v. Donnell, 53 N. J. Eq. 32, 30 Atl. 533, citing Shields v. Barrow, 17 How. (U. S.) 129. See McGavoct v. Morrison, 3 Tenn. Ch. 355, considering the practice in Tennessee. 33Finlayson v. Lipscomb, 16 Pla. 751; Bronson v. La Crosse & M. R. Co., 2 Wall. (tr. S.) 283; Indiana Southern R. Co. v. Liverpool, L. & G. Ins. Co., 109 TJ. S. 168; Brooks v. Moody, 25 Ark. 452; Brown v. Bell, 4 Hayw. (Tenn.) 288; Baker v. Oil Tract Co., 7 W. Va. 454. It is held that a cross bill may be filed without leave of court, and the ques- tion of the right to file it may be made on demurrer. Neal v. Foster, 34 Fed. 496. In Illinois it is provided by statute: "Any defendant may, after filing his answer, exhibit and file his cross bill, and call upon the complainant to file his answer thereto, in such time as may be prescribed by the court." Rev. St. 111. c. 22, § 30. It is held that the filing of a cross bill is a matter of right, and requires no leave of court. Beauchamp v. Putnam, 34 111. 378; Davis v. American & Foreign Christian Union, 100 111. 313. See Quick v. Lemon, 105 111. 578. Where a party wishes to file a cross bill, he should do so without (958) Ch. 49] CROSS BILLS. § 899 time when a cross bill may be filed is usually regulated by statute or rule of court. As a general rule, the proper time, where such a bill is necessary, is at the time of putting in an answer to the original suit, and before issue is joined by filing the replication.^* Where a cross bill is not filed until after the original suit is at issue, the complainant in such cross bill will not be entitled to an order staying proceedings in the original suit, without showing some excuse for the failure to file the cross bill before the original suit was at issue.^^ The rule that delay. If time is required after the filing of the answer, it should he asked for. Where the cross bill is filed after the hearing, and with- out leave, it should be stricken from the files. Fread v. Fread, 61 111. App. 586; Maher v. Bull, 39 111. 531. "It was not necessary to give notice of the application for leave to file a cross bill; nor, so far as I am advised, to obtain leave before doing so. The only case I have found on the subject is Bronson v. La Crosse & M. R. Co., 2 Wall. (XJ. S.) 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 corpo- ration, then in default, of which he 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 party filed the answer for the corporation, and also a cross bill, which was subsequently set .aside because filed without 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 resort in a proper case without any special leave of the court; but in doing so he must conform to the law or rule which governs the case, or take the consequence. Story says (Eq. PI. § 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.' " Neal v. Foster, 34 Fed. 496. 34 2 Barbour, Ch. Pr. 129; Josey v. Rogers, 13 Ga. 478; Irving v. De Kay, 10 Paige (N. Y.) 319. See United States Equity Rule 72. 35 2 Barbour, Ch. Pr. 129. It is not too late to file a cross bill after proofs in the original suit are closed, if complainant in the cross bill elects to have a hearing on bill and answer as to the cross bill. White v. Buloid, 2 Paige (N. Y.) 164. Under the chancery practice formerly obtaining in New York, it was held that a cross bill should be filed before publication had passed in the first cause. Sterry v. Arden, 1 Johns. Ch. (N. Y.) 62; Gouverneur v. Elmendorf, 4 Johns. Ch. (N. Y.) 357; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250. See Cook v. Broomhead, 16 Ves. 133; Dalton v. Carr, 16 Ves. 93. It is held in the federal courts that a cross bill not seeking to introduce new testimony (959) § 901 EQUITY PLEADING AND PRACTICE. [Ch. 49 a cross bill sliould be filed at the same time with the answer does not apply to such a bill by one defendant against a co-defend- ant.^® § 900. Directing filing of cross bill. The court will, in its discretion, in some instances, allow or even direct a cross bill to be filed, where, upon the hearing, it appears to the court that the condition of the suit is insuffi- cient to bring before the court the rights of all the parties in matters essential to a just determination of the cause, and will reserve the necessary directions or declarations, touching the matter not fully in litigation by the former bill, until the cross bill is heard.^^ § 901. Frame of cross bill. Independently of statute, the cross bill is required to state the original bill, or, rather, the parties, the prayer, and objects on the matters in issue in ttie original suit may be filed, after publica- tion passed or the testimony taken. Neal V. Poster, 34 Fed. 496. Across bill filed before complainant therein has filed his answer to the original bill may be stricken from the files on motion. Ballard v. Kennedy, 34 Fla. 483, 16 So. 327. A demurrer to a cross bill will not lie on the ground that it has been filed before answering the original bill. Cobb v. Bax- ter, 1 Tenn. Ch. 405. In New Hampshire it was held that a cross bill, unless directed by the court, could not be filed after the hearing on the original bill. Roberts v. Peavey, 29 N. H. 392. S6 Vanderveer's Adm'r v. Holcomb, 21 N. J. Eq. 105. For cases in- volving time for filing cross bill, see Rogers v. Riessner, 31 Fed. 591; Davis V. American & Foreign Christian Union, 100 111. 313; Cartwright V. Clark, 4 Mete. (Mass.) 104; Cartwright v. Johnston, 110 Mich. 312, 68 N. W. 144; Morgan's Louisiana & Texas Railroad & Steamship Co. V. Texas Cent. R. Co., 137 U. S. 171. It is irregular to allow defendant, who has only obtained leave to amend his answer by a certain day, to file a cross bill instead, and to take a rule upon complainant to answer the cross bill instanter, and at the same time, and in the same order, to take a decree pro confesso upon the cross bill, which decree grants him affirmative relief. Holbrook v. Prettyman, 44 111. 311. For prac- tice in federal court, see United States Equity Rule 72. 3T Mitford, Eq. PI. 82; Hall v. Calvert (Tenn. Ch. App.) 46 S. W. 1120; Field V. Schieffelin, 7 Johns. Ch. (N. Y.) 250; Neal v. Foster, 34 Fed. 496. (960) Ch. 49] CROSS BILLS. § 901 of it, the proceedings therein, and the rights of the party ex- hibiting the bill which are necessary to be made the subject of cross litigation, or the ground on which he resists the claim of the complainant in the original bill, if that is the object of the new bill.^* If affirmative relief is asked by the cross bill, all the facts necessary to entitle the cross complainant to relief must be set forth in the cross bill, and the original bill must not be relied upon for a statement of the cause of action.** The grounds for affirmative relief must be set forth with the same strictness as is required in the original bill.**' A cross bill filed for collateral relief differs in no respect from the common form of an original bill, but must state the injury sought to be redressed, in which is generally included the refer- ence to the former bill, pretenses and charges when necessary, — being for the most part pretenses of some of the allegations in the original bill, and charges to the contrary, — and, lastly, the prayer for subpoena, to the end that the defendant may answer the premises, and that the court may decree such relief as the nature of the case may require.*^ Where a cross bill is filed for the purpose of setting up some occurrence which has happened since the cause was at issue, and which would have been a good ground of a plea in bar had it happened in time, the cross bill is in the nature of a plea puis darrein continuance, and should recite the former bill and proceedings thereon, and set forth 38 Story, Bq. PI. § 401; Mitford, Eq. PI. 81; Neal v. Foster, 34 Fed. 496. In Illinois, by statute, it is provided: "It shall not be necessary to recite in a cross bill any of the pleadings or proceedings in the case in which it is filed." Rev. St. 111. c. 22, § 31. 39McCagg V. Heacock, 42 111. 153; Masters v. Beckett, 83 Ind. 595; Campbell v. Routt, 42 Ind. 410. A cross complainant appealing for equitable interference must, by his cross bill, bring himself within the recognized principles upon which a court of equity acts. Calverley v. Williams, 1 Ves. Jr. 210; Jackson v. Simmons, 98 Fed. 768. loMcCagg V. Heacock, 42 111. 153; Trapnall v. Burton, 24 Ark. 371; Greenwalt v. Duncan, 16 Fed. 35; Kennedy v. Kennedy, 66 111. 190; Jackson v. Simmons, 98 Fed. 768; Mason v. Gardiner, 4 Brown, Ch. 437. «2 Barbour, Ch. Pr. 132; Lube, Eq. PI. 229; Hayne v. Hayne, 3 Ch. R. 19; Kennedy v. Kennedy, 66 111. 190. (961) Equity.— 61. § 902 EQUITY PLEADING AND PRACTICE. [Ch. 49 the new occurrence which creates the bar, that the suit is, not- withstanding, proceeded with, and that the complainant in the cross bill cannot use the defense as a plea in bar, and should pray a subpoena, to the end that the premises may be answered, and the new defense declared a sufficient bar to any further proceedings, and that therefore the original bill be forthwith dismissed with costs. *^ An answer cannot be deemed a cross bill because it contains a request that it be so taken.*^ To be treated as a cross bill, it must have all the substantial requisites of a cross bill.** Where a cross bill filed by one defendant brings the entire subject of litigation before the court, a second cross bill by another defendant is unnecessary, and is properly dismissed.*^ § 902. Form of cross bill in divorce suit (Illinois). state of Illinois, 1 }-ss. In the Circuit Court of Cook County. County of Cook. J A. B. 1 vs. ^Bill in Chancery. C. B. J C. B. ) vs. y Cross Bill. A. B. J To the Honorable the Judges of the Circuit Court of Cook County, in the State of Illinois, in Chancery Sitting: 42 2 Barbour, Ch. Pr. 131. 43 Ballance v. Underhill, 4 111. 453 ; Purdy v. Henslee, 97 111. 389. 44 Purdy v. Henslee, 97 111. 389. It has been said that It is not pec- essary, however, that the cross bill should be on a separate paper. If the defendant in his answer, has fully answered the bill, he may state new matter entitling him to affirmative relief, and pray in the answer for the appropriate relief. Thielman v. Carr, 75 111. 385. But conced- ing that there is no objection, after concluding the answer, to proceed- ing on the same piece of paper, and stating the matter of the cross bill, the statement should be sufficient to constitute a cross bill if dis- connected, and a proper heading attached. Purdy v. Henslee, 97 111. 393. For cases considering answers as cross bills, see Marr v. Lewis, 31 Ark. 203, 25 Am. Rep. 553; McConnell v. Hodson, 7 111. 640; Wilson's Heirs v. Bodley, 2 Litt. (Ky.) 55; Young v. Twigg, 27 Md. 620; Cox v. Leviston, 63 N. H. 283; Passumpsic Sav. Bank v. First Nat. Bank of St. Johnsbury, 53 Vt. 82; McMullen v. Eagan, 21 W. Va. 233. (962) Ch. 49] CROSS BILLS. § 902 Your oratrix, A. B., of the city of Chicago, county of Cook, and state of Illinois, respectfully represents unto your honors that on, to-wit, the 15th day of June, A. D. 1900, C. B., of said city of Chicago, county and state aforesaid, the defendant hereinafter named, exhibited and filed in this honorable court his bill of complaint against your oratrix, to obtain a divorce against your oratrix on the alleged ground that your oratrix willfully deserted and absented herself from the said C. B., without any reasonable cause, for the space of two years and upwards, and had persisted and continued in such desertion up to the time of the filing of said bill, and thereby praying that the mar- riage between your oratrix and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided, and that the said C. B. may have such other and further relief as equity may require, and to your honors shall seem meet. And your oratrix, being duly served with process, appeared and put in her answer thereto, as by the said bill and other pleadings in the said cause now remaining on file and of record in this honorable court, reference thereto being had, will more fully appear. Your oratrix further represents unto your honors that she is an actual resident of said county of Cook, and is and has been a resident of the state of Illinois for more than five years last past; that on, to- wit, the 10th day of May, 1895, at the city of Chicago aforesaid, she was lawfully married to said C. B., and from that time until the 1st day of January, 1896, your oratrix lived and cohabited with the said C. B. as his wife, and during all that time faithfully performed all her duties and obligations as a wife, striving to make the home of herself and the said C. B. comfortable and happy; that on, to-wit, the 1st day of January, 1896, becoming acquainted with the facts hereinafter set forth, she left the said C. B., and has refused to live and cohabit with him since that time. Your oratrix further represents that the said C. B., wholly regard- less of his marriage duty, obligations, and plighted faith, has for a considerable time past, and subsequent to the said marriage, to-wit, from November 1, 1895, given himself up to adulterous and licentious practices, and that on, to-wit, December 31, 1895, at the city of Chicago, in the county of Cook and state of Illinois, he, the said C. B., committed adultery and had carnal connection with one E. F., and has at divers other places and times since said marriage, to your oratrix unknown, committed adultery with the said E. F., and with divers other lewd women, whose names are also to your oratrix unknown. Forasmuch, therefore, as your Oratrix is without remedy in the premises, except by filing this, her cross bill in the said proceedings commenced by the said C. B. against your oratrix, and to the end 45Gilman v. New Orleans & S. R. Co., 72 Ala. 566. See "Weed v. Smull, 3 Sandf. Ch. (N. Y.) 273; Bogle v. Bogle, 3 Allen (Mass.) 158. (963) §903 EQUITY PLEADING AND PRACTICE. [Ch, 49 that the said C. B., who is hereby made party defendant to this cross bill, may be reauired to make full and direct answer to the same, and that the said marriage between your oratrix and the defendant, C. B., may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided, and that your oratrix may have such other and further relief in the premi- ses as equity may require, and to your honors shall seem meet: May it please your honors to enter an order in the above-entitled cause, requiring the said defendant, C. B., to make full and direct an- swer to this cross bill within a short day, to be fixed by the court. And this your oratrix will ever pray, etc. A. B., Cross Complainant. G. H., Solicitor for A. B., Cross Complainant. *« § 903. Form of cross bill in the nature of plea puis darrein con- tinuance. [Title of court and causes, and address to the court as in last form.] Your orator, A. B., of the city of Chicago, county of Cook, and state of Illinois, respectfully represents unto your honors that C. D., of the city of Chicago, in the county and state aforesaid, the defendant here- inafter named, did, on or about the 1st day of January, A. D. 1900, file his bill of complaint in this honorable court against your orator, thereby praying [state the prayer of the bill] ; and your orator, being duly served with process, appeared and put in his answer thereto, to which answer the said C. D. filed a replication, and, issue being thus joined, witnesses were examined on both sides, and the proofs closed, whereupon the said cause was set down for hearing, as by the said bill and other proceedings in the said cause now remaining as of record in this court, reference thereunto being had, will more fully appear. And your orator further shows unto your honors that the said cause has not yet been heard, and on or about the 1st day of August, 1900, the said C. D., by a certain writing of release, bearing date the 31st day of July, 1900, did remise, release, and forever quitclaim unto your orator, his heirs, executors, and administrators, the several matters and things complained of in and by said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all and all manner of actions, causes of action, suits, and demands whatsoever, both at law and in equity, or other- wise howsoever, which he, the said C. D., then had, or which he should or might, at any time or times thereafter, have, claim, allege, or de- 46 If a subpoena, instead of a rule, is required to bring defendant into court, the same must be prayed for. See supra, § 69. (964) Ch. 49] CROSS BILLS. § 904 mand against your orator, for or by reason or means of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release, as by the said re- lease, reference being thereunto had, and a copy of the same hereto attached, marked "Exhibit A," and made a part of this cross bill, will ap- pear. And your orator hoped that, in consequence of the said release, the said C. B. would not have proceeded in the said suit against your orator, but the said C. D., notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the said cause on for hearing in due course, and he pretends that no such release was ever executed by him. or, if so, that the same was obtained by fraud and surprise, and therefore void; whereas, your orator charges that the same was in every respect fairly and properly obtained by your orator, and duly executed by the said C. D. And your orator further charges that, under the circumstances aforesaid, he is unable to put the said release in issue, or to use the same as a plea in bar in said suit. All which actings and pretenses are contrary to equity and good conscience, and tend to the injury and oppression of your orator. Forasmuch, therefore, as your orator is without remedy in the prem- ises, except in a court of equity, and to the end that the said C. D., who is made a party defendant to this cross bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived, that the said release may be es- tablished and declared by this court a sufficient bar to any further pro- ceedings by the said C. D. in the said suit, and that the bill of the said C. D. therein may, under the circumstances, be forthwith dismissed, with costs, and that your orator may have such other and further re- lief in the premises as equity may require, and to your honors shall seem meet: May it please your honors to enter an order requiring the said de- fendant, C. D., to make full and direct answer to this cross bill within a short day to be fixed by the court. [If summons instead of rule is re- quired, pray for same.] And this your orator will ever pray, etc. A. B., Cross Complainant. G. H., Solicitor for A. B., Cross Complainant. § 904. Process upon cross bill. The party filing a cross bill must take the steps necessary to have it answered.*'^ Independently of statute, the appear- ance of a defendant to a cross bill is enforced in the same man- 47Purdy V. Henslee, 97 111. 389; Reed v. Kemp, 16 111. 445. (965) § 905 EQUITY PLEADING AND PRACTICE. [Ch. 49 ner as that of a defendant to an original bill.** Where no steps are taken under a cross bill after it is filed, and the parties volun- tarily go to a hearing, the cross bill may be regarded as aban- doned.*' There is no duty imposed upon defendants in a cross bill, who are parties to the original suit, to answer the cross bill until called upon by the complainant therein, and by rule of court so to do.°" § 905. Demurrers to cross bill. A cross bill having nothing in its nature different from an original bill, with, respect to which demurrers in general have been already considered, except that it is occasioned by a former bill, there seems to be no cause of demurrer to such bill which will not equally hold to an original bill. But the converse of this proposition is not universally true. A demurrer for want of equity will not hold to a cross bill filed by a defendant in a suit against the complainant in the same suit touching the same matter.^^ Where the cross bill is brought forward by way of defense, want of equity therein is no defense thereto.''^ Where a cross bill seeks relief which is of an equitable nature, if it does not contain all proper allegations which confer an equi- table title to such relief upon the party, it will be open to de- murrer.^^ If a cross bill seeks to bring before the court mat- ^sBallance v. Underbill, 4 111. 453; Washington R. Co. v. Bradleys, 10 Wall. (U. S.) 299; Smith V. Woolfolk, 115 U. S. 143; Thomason v. Neeley, 50 Miss. 310. 49 Hungate v. Reynolds, 72 111. 425; Purdy v. Henslee, 97 111. 395. For substituted service on cross bills, see supra, § 129. 50 Michael v. Mace, 137 111. 485, 27 N. E. 694. It is error to render a final decree upon the filing of a cross bill, granting the relief thereby sought, without giving to the defendants thereto reasonable time in which to interpose a defense. Western Union Telegraph Co. v. Pacific & Atlantic Telegraph Co., 49 111. 90. 51 Story, Eq. PI. § 628; 2 Barbour, Ch. Pr. 133. 52 Wing V. Goodman, 75 111. 159; Lambert v. Lambert, 52 Me. 544; Gilmer v. Pelhour, 45 Miss. 627. 63 Story, Eq. PI. § 630; 2 Barbour, Ch. Pr. 133; Mason v. Gardiner, 4 Brown, Ch. 436; Hickson v. Aylward, 3 Moll. 1; Cooper, Eq. PI. 215; Calverley v. Williams, 1 Ves. Jr. 213. (966) Ch. 49] CROSS BILLS. § 9O6 ters and rigkts distinct from matters in litigation in the orig- inal suit, it is demurrable.^* A cross bill also will be open to demurrer if it is filed contrary to the practice of the court, and under circumstances in "which a pure cross bill is not allowed.''* A cross bill filed by the special direction of the court to obtain its decree touching some matter not in issue by the former bill, or not in issue between the proper parties, does not seem, it is said, liable to any peculiar cause of demurrer.^" There is lit- tle probability that it would be liable in siibstance to any de- murrer.^^ § 906. Pleas to cross bill. Cross bills are generally liable to all the pleas in bar to which original bills are liable, as they differ in nothing from the original bills, except that they are occasioned by former bills; and the converse of this is equally true, — that a cross bill is not generally liable to any plea which will not hold to an orig- inal bill.'* Pleas to the jurisdiction and to the person cannot be pleaded to a cross bill, the defendant having, by filing his original bill, affirmed the sufficiency, both of the person and of the jurisdiction.^® But if a cross bill is filed by a person incapa- ble alone to institute a suit, it would seem that a plea to the per- son would be good.^° A defendant cannot, by cross bill, compel the complainant in the original suit to make a discovery of his, the defendant's, title, and it would seem that the objection may be taken by plea and it may also be insisted on by answer.^^ 54 Story, Bq. PI. § 631; 2 Barbour, Ch. Pr. 133. 55 Story, Eq. PI. § 632; Berkley v. Ryder, 2 Ves. Sr. 533. See White V. Buloid, 2 Paige (N. Y.) 164. 50 Story, Eq. PI. § 633; 2 Barbour, Ch. Pr. 133. 57 2 Barbour, Ch. Pr. 133; Story, Eq. PI. § 633; Mitford, Eq. PI. 203. 5s Story, Eq. PI. § 832; 2 Barbour, Ch. Pr. 132, 133; Cooper, Eq. Pi. 304; Mitford, Eq. PI. 290, 291; Beames, Pleas in Eq. 802, 803. 5» Story, Eq. PI. § 832; 2 Barbour, Ch. Pr. 132; Cooper, Eq. PI. 304; Mitford, Bq. PI. 290, 291; Beames, Pleas in Eq. 802, 803. 60 Story, Bq. PI. § 832; 2 Barbour, Ch. Pr. 132. 61 2 Barbour, Ch. Pr. 132; Story, Eq. PL § 832; Bellwood v. Wetherell, (967) § 909 EQUITY PLEADING AND PRACTICE. [Ch. 49 § 907. Answer. By the English practice, the complainant in the original suit had the right to the first answer, and might move to stay pro- ceedings in the cross cause until the original bill was an- swered.^^ The complainant to an original bill does not waive his right to an answer by getting an order for time to answer the cross bill.*^ An answer to a cross bill filed by a person not named in the bill nor admitted as a defendant will be stricken from the files.®* § 908. Abatement of original suit. If an original bill is abated by the marriage of a complain- ant and a cross bill is then filed, the priority of the original bill is lost.®^ § 909. Staying proceedings on original bill. The filing of a cross bill does not necessarily stay the hearing upon the original bill.®^ The complainant in the original bill is not obliged, in any case, to stay proceedings thereon upon the filing of a cross bill, except by a special order of the coaart.®^ It is not a matter of course for the court to stay the proceedings on the original bill in any case except where the defendant in 1 Younge & C. 211; Glegg v. Legh, 1 Bligh (N. S.) 302; Cherry v. Legh, 1 Bligh (N. S.) 306. See, also, Welford, Bq. PI. 230. 02 2 Barbour, Ch. Pr. 134; Harris v. Harris, Turn. & R. 165. See United States Equity Rule 72. In determining the sufficiency of the answer to a cross hill, the allegations of the original bill are to be con- sidered therewith. Mcllvain v. Southwestern Market Co., 10 Phila. (Pa.) 371, 32 Leg. Int. (Pa.) 464. See, also, Hudson v. Hudson, 3 Rand. (Va.) 117; Savage v. Carter, 7 Dana (Ky.) 414. 63 2 Barbour, Ch. Pr. 134; v. Southall, Younge, 330. 04 Putnam v. New Albany, 4 Biss. 365, Fed. Cas. No. 11,481. Where an amended answer is filed after a cross bill, the latter must be first answered. Scales v. Nichols, 3 Hayw. (Tenn.) 229. 05 2 Barbour, Ch. Pr. 135; Smart v. Ployer, 1 Dickens, 260. 00 2 Barbour, Ch. Pr. 134; Phillips v. Edsall, 127 111. 535, 20 N. E. 801; Wiley v. Platter, 17 111. 538; Williams v. Carle, 10 N. J. Bq. 543. 07 2 Barbour, Ch. Pr. 134. (968) Ch. 49] CROSS BILLS. I 910 tile cross suit is in contempt for not answering.^* If the com- plainant in the cross bill wishes to stay the proceedings in the original suit, the cross bill should be filed on oath, and a show- ing made of the necessity for the stay, and notice given of the application therefor.®® All the complainants in the cross bill must join in this application. '''' When there has been a want of diligence on the part of a defendant, and the original bill is ready for hearing, the defendant cannot interpose a cross bill, and insist, as a matter of right, upon the postponement of the hearing of the original bill.'^^ The court, under special circum- stances, and for the purpose of finally settling the rights of parties arising out of the matters of the original suit, at any time before final decree may allow, or even direct, a cross bill to be filed, and continue the original bill for issue and proofs under the cross bill.^^ § 910. Form of order to stay proceedings in original suit. [Title of court and causes.] On reading and filing the cross bill of C. D. to the bill of complaint of A. B., and on motion of G. H., solicitor for said C. D., and on hear- ing the solicitor for the said A. B. in opposition thereto, and the court being fully advised in the premises. It is ordered that all proceedings in the original suit, commenced by the said A. B. against the said C. D., be stayed until the said A. B. shall have put in his answer to the cross bill filed against him by the said C. D. 68 2 Barbour, Ch. Pr. 134; White v. Buloid, 2 Paige (N. Y.) 164; Farm- ers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538. «9 Cartwright v. Clark, 4 Mete. (Mass.) 104; Griswold v. Simmons, 50 Miss. 137; White v. Buloid, 2 Paige (N. Y.) 164; Talmage v. Pell, 9 Paige (N. Y.) 410; 2 Barbour, Ch. Pr. 134. 70 Talmage v. Pell, 9 Paige (N. Y.) 410. "Phillips V. Edsall, 127 111. 535, 20 N. E. 801; Wiley v. Platter, 17 111. 538. 72 Wiley v. Platter, 17 111. 539, citing 2 Barbour, Oh. Pr. 129, 130; Story, Eq. PI. §§ 395, 396; 1 Smith, Ch. Pr. 460; 1 Hoffman, Ch. Pr. 352, 353; White v. Buloid, 2 Paige (N. Y.) 164; Gouverneur v. Elmen- dorf, 4 Johns. Ch. (N. Y.) 357; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250; Brush Electric Co. v. Brush-Swan Electric Light Co., 43 Fed. 701; Stevens' Ex'x v. Stevens' Ex'rs, 24 N. J. Eq. 77, 574; Scott v. Grant, 10 Paige (N. Y.) 485; Cartwrlght v. Clark, 4 Mete. (Mass.) 104. (969) § 913 EQUITY PLEADING AND PRACTICE. [Ch. 49 § 911. Hearing upon cross bill. After both causes are at issue, or in a situation to be heard, the complainant in a cross suit may have an order that they be heard together ; but the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause. ''^ It is not, however, absolutely necessary that the or- iginal bill and cross bill be heard together. Thus, where a cross bill has been filed and demurred to on the ground that the cross bill fails to present upon its face sufficient grounds for affirmative relief, it is not error for the court to pro- ceed to a hearing of the original cause without regarding the cross bill or disposing of the demurrer thereto.'^* The com- plainant in the cross cause must have it ready to be heard when the original cause comes on for hearing, or procure a stay of proceedings, if he desires that the two causes shall be heard together. '^^ Where, upon a hearing of the whole case, the matter presented by the original bill is not ready to be disposed of, but that presented by the cross bill is ready, and is so remotely connected with the original cause as to admit of full determina- tion without affecting the original cause, a decree can be entered on the cross bill, and the original cause held open for further ad- judication.''® Where a cross bill seeks affirmative relief with respect to matters germane to the bill, and the controversy has taken such a shape that a complete and final determination of the whole case as to all the parties to the original bill may be heard upon the lines of the cross bill, a final decree may be en- tered upon that bill.'''' § 912. Form of order that original and cross bills be heard to- gether. [Title of court and causes.] On reading and filing afiBdavits showing tliat both the above-entitled 73 2 Barbour, Ch. Pr. 135; White v. Buloid, 2 Paige (N. Y.) 164; Jones v. Hillis, 91 111. App. 403. 74 Crabtree v. Levings, 53 111. 526. '5 Beauchamp v. Putnam, 34 111. 378. T6 Carroll v. Taylor, 102 Tenn. 451, 52 S. W. 139; Cocke v. Trotter, 10 Yerg. (Tenn.) 213. " Blythe v. Hinckley, 84 Fed. 233. (970) Cb, 49] CROSS BILLS. § 913 causes are at issue, and ready for hearing, and on motion of J. E., so- licitor for C. E., the complainant in the cross bill. It is ordered that the said causes be brought on for hearing to- gether; provided that the hearing upon the original bill shall not be delayed by any delay or neglect to proceed on the part of the com- plainant in the said cross bill. 5 913. Evidence. Under the English practice, when secret examinations pre- vailed, evidence in a cross cause, taken after publication in the original cause, could not be read at the hearing to any point to which testimony had been taken in the latter.^* Upon bill and cross bill, where there are the same parties, and the evidence is applicable to the issues in both suits, in a hearing upon the cross bill the testimony taken in the original suit will be ad- mitted. The court, however, will not permit testimony taken in the original suit not relevant to the issiie in that suit to be read, although it is relevant to the issue made by the pleadings to the suit on the cross bill.''® A party may obtain an order that 78 2 Barbour, Ch. Pr. 135; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 252; White v. Buloid, 2 Paige (N. Y.) 164; Neal v. Foster, 34 Fed. 496; Wilford v. Beaseley, 3 Atk. 501; Taylor v. Obee, 3 Price, 26. See United States Equity Rule 72 for practice in federal courts. 79Holcombe v. Holcombe's Ex'rs, 10 N. J. Eq. 284; Underbill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 355. See, also, Lubiere v. Genou, 2 Ves. Sr. 579. Where a plea of a former adjudication is filed in bar to a cross bill, and the complainant in the cross bill fails to reply thereto, and thereby admits the truth of the facts set up in the plea, the only question in the cause being set for hearing on the plea is its sufficiency, and evidence offered in support of the cross bill is properly excluded as irrelevant. Knowlton v. Hanbury, 117 111. 471, 5 N. E. 581. See 1 Barbour, Ch. Pr. 120; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 210. If a cross bill contains a charge of fraudulent mis- conduct in arbitrators, but no such allegation is made in the answer to the original bill, though, by a general order of the court, the deposi- tions taken in the original suit are allowed to be read in the cross suit, yet such parts of those depositions as relate to the fraudulent misconduct, not charged in the original suit in which they were taken, will be suppressed. Underbill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 339. (971) § 915 EQUITY PLEADING AND PEACTICB. [Ch. 49 the depositions in the original cause may be read in the cross cause, saving just exceptions.®" § 914. Effect of taking cross bill as confessed. If a cross bill is taken as confessed, it may be used as evi- dence against the complainant in the original suit on the hear- ing, and will have the same effect as if he had admitted the same facts in an answer.*^ Where a cross bill is answered, and the matter is brought to a hearing, and the answer used, it is evidence for the party making it so far as responsive to the bill.*^ The rule appears to be that the complainant in the original suit, being required to make out his case by evidence, cannot use his ovm answer to a cross bill as such evidence, un- less the original defendant, having taken that answer as his evi- dence, shall first use it. If he does, it then becomes evidence for both parties.®* § 915. Amending cross bill. If, subsequent to its filing, a cross bill is amended in ma- 80 Christian v. Wrenn, Bunb. 321; Lubiere v. Genou, 2 Ves. Sr. 579. "The depositions in the cross cause to distinct matters can, of course, be read, and, if no witnesses have been examined in the original suit, the testimony in the cross suit can be used. Wilford v. Beaseley, 3 Atk. 501. So, if no witnesses are examined in the cross suit, the depositions in the original suit may be read; but the point in issue must be the same in both causes. Christian v. Wrenn, Bunb. 321. It appears to be the regu- lar practice to procure a preliminary order for reading in the one cause, the pleadings and proofs in the other, saving just exceptions. Christian V. Wrenn, supra. But It is also stated that, where the two causes are set down to be heard together, no previous order is requisite. 1 Howard, Eq. 295; 2 Fowler, Exch. Pr. 166. The testimony taken in a cross cause may be read, although the bill be dismissed. Lubiere v. Cfenou, 2 Ves. Sr. 579; 1 Howard, Eq. Side, 293." 2 Barbour, Ch. Pr. 136. For evi- dence in cross causes, see supra, § 665. 812 Barbour, Ch. Pr. 135; Kidder v. Barr, 35 N. H. 235; White v. Buloid, 2 Paige (N. Y.) 164. See supra, § 643. 82 Kidder v. Barr, 35 N. H. 235. 83 Kidder v. Barr, 35 N. H. 235. See, also, Phillips v. Thompson, 1 Johns. Ch. (N. Y.) 131. (972) Ch. 49] CROSS BILLS. i^ 917 terial points, it will be considered a new bill. This is said by some courts to be true, whether the amendments are material or not. The amendment will not stay proceedings in the original suit. The complainant in the cross suit must move that the proceedings be stayed until the complainant answers the cross bill.«* § 916. Decree. The same rules applicable to a decree upon an original bill apply to a decree upon a cross bill.** § 917. Relation of bill and cross bill. Some confusion exists in the statements of the text writers and courts concerning the relation of the cross bill and the orig- inal bill. It is said that a cross bill is generally considered as a defense, and the original cause and the cross bill are but one cause.*® But it is also said that the cross bill is no part of the original proceeding, and it in nowise depends upon it ; that the two cases may be tried together if they are both ripe for a hear- ing at the same time, but, if not, then separately f and that a hearing may be had upon the original bill before the cross bill is ready for a hearing, and such hearing does not render the de- cree on the original bill only interlocutory, but such decree is as 8*2 Barbour, Ch. Pr. 135; Steward v. Roe, 2 P. Wms. 435; Noel v. King, 2 Madd. 392; Johnson v. Freer, 2 Cox, 371; Long v. Burton, 2 Atk. 218. See supra, § 401. 85 A decree on a cross bill witbout eitber an answer or a rule to an- swer is clearly erroneous, and when the only rule to answer is void, as having been made in vacation, the decree founded upon it is erroneous. Blair v. Reading, 99 111. 600. 86 2 Barbour, Ch. Pr. 127; Neal v. Foster, 34 Fed. 498; Newburg v. Wren, 1 Vern. 221; Field v. Schiefeelin, 7 Johns. Ch. (N. Y.) 252; Gala- tian V. Brwin, Hopk. Ch. (N. Y.) 48. A cross bill is a mere auxiliary suit, and a dependency of the original. Cross v. De Valle, 1 Wall. (TJ. S.) 14. "For many purposes, the original and cross bill in chancery are considered as one suit, and are ordinarily heard together, and the rights of all the parties in respect to the matters litigated are settled by one decree." Whyte v. Arthur, 17 N. J. Bq. 521. 87 Myers v. Manny, 63 111. 214. (973) § 918 EQUITY PLEADING AND PRACTICE. [Ch. 49 final when pronounced as if the cross bill had never been filed.*^ The confusion existing in the statements on this subject by the courts in their reported decisions, and by the text writers, may possibly be reconciled by recalling the distinction between cross bills setting up matters of defense to the case presented by the original bill, and those asserting affirmative matter. § 918. Dismissal of original bill. Considerable confusion exists concerning the effect of dismiss- ing the original bill. In some cases it is held that, where the original bill is dismissed, the cross bill must have the same fate with the original, for the reason that it is a mere auxiliary suit, and a dependency of the original.*'* The true rule would seem to be that 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 dismissal 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 subject-matter, and prays for an affirmative relief against the complainants 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.^° 88 Myers v. Manny, 63 111. 214. See, also, Ballance v. XJnderMll, 4 111. 453. 89 Cross V. De Valle, 1 Wall. (U. S.) 14; Carroll v. Richardson, 87 Ala. 605, 6 So. 342; Loomis v. Freer, 4 111. App. 548. soLowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Ballard V. Kennedy, 34 Fla. 483, 16 So. 327; Jones v. Thacker, 61 Ga. 329; Sig- man v. Lundy, 66 Miss. 522, 6 So. 245; Dawson v. Amey, 40 N. J. Bq. 494, 4 Atl. 442; Wilkinson v. Roper, 74 Ala. 140; Pethtel v. McCullough, 49 W. Va. 520, 39 S. B. 199; Ragland v. Broadnax, 29 Grat. (Va.) 401; Jackson v. Simmons, 98 Fed. 768; Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720; Griffin v. Griffin, 118 Mich. 446, 76 N. W. 974. This rule has been held to be applicable only where the relief asked in the cross bill was directed against the complainant and not against a co-defendant. Abels v. Planters & Merchants Ins. Co., (974) Ch. 49] CROSS BILLS. § 918 92 Ala. 382, 9 So. 423; Trimble v. Fariss, 78 Ala. 260; Blderkin v. Fitch, .2 Ind. 90. In Illinois, where, after the filing of the cross bill, the claim of the original petitioner in a suit to enforce a mechanic's lien was paid, the court held that it did not follow that it had no power there- after to determine questions between co-defendants who were still be- fore the court, and not necessarily dismissed from it by such payment •of the petitioner's decree, the bill not having been dismissed, and that the cross bill in such case should be retained for the purpose of settling the question presented by it. Chicago Artesian Well Co. v. Connecticut Mut. Life Ins. Co., 57 111. 424. If an original bill is dismissed on the hearing for want of equity, a cross bill in the suit may also be dismissed where the cross complainant has a complete and adequate remedy at law. Wachter v. Blowney, 104 111. 611. See supra, § 580. (975) CHAPTER L. BILLS OF REVIEW. § 919. Definition and nature. A bill of review is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree, made upon a former bill, which hp,s been signed and enrolled.^ This enrollment of the decree, under the Eng- lish chancery practice, was essential to what is called, by way of pre-eminence, a "bill of review," for, if the decree has not been enrolled, then a bill in the nature of a bill of review, or a supple- mental bill in the nature of a bill of review, is the appropriate remedy.^ In most of the courts of equity in America, includ- ing the federal courts, all decrees in equity are matters of rec- ord, and are deemed to be enrolled as of the term at which they were rendered, whether actually enrolled or not.* § 920. When a bill of review lies. Bills of review are permitted to be brought only in two cases, — cases which are settled and declared by the first of Lord Chancellor Bacon's ordinances: "No decree shall be reversed, 1 Story, Eq. PI. § 403 ; 2 Barbour, Ch. Pr. 90 ; Robinson v. Rudkins, 28 Fed. 8; Bramlet's Heirs v. Pickett's Heirs, 2 A. K. Marsh. (Ky.) 10; Hollingsworth v. McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545; Burcb v. Scott, 1 Gill & J. (Md.) 393; Little v. Bunce, 7 N. H. 485. 2 Story, Bq. PI. § 403; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Greenwich Bank v. Loomis, 2 Sandf. Ch. (N. Y.) 70; Copeland V. Bruning, 104 Fed. 169; Mallery v. Quinn, 88 Md. 38, 40 Atl. 1079. 3 Story, Eq. PI. § 403; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; Copeland V. Bruning, 104 Fed. 169. See, for enrollment of decrees, supra, §§ 726, 727. (976) Cli. 50] BILLS OF REVIEW. § 921 altered, or explained, being once under the great seal, but upon bill of review; and no bill of review stall be admitted except it contains either error in law appearing in the body of the de- cree, without further examination of matters of fact, or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not other- § 921. For errors of law apparent on the face of the record. A bill of review for matter of 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 by the court. It cannot be sustained upon the ground that the court has decided wrongly upon a question of fact.^ i2 Barbour, Ch. Pr. 91; Story, Bq. PI. §§ 403, 404; Beames, Order Ch. 1; Davis v. Bluck, 6 Beav. 393; Massie v. Graham, 3 McLean, 41, Fed. Gas. No. 9,263; Ellzey v. Lane's Ex'x, 2 Hen. & M. (Va.) 589; Halsted v. Forest Hill Co., 109 Fed. 820; Nickle v. Stewart, 111 V. S. 776; Hill v. Phelps, 101 Fed. 650. See post. Appendix A. "There are but three grounds upon which such a bill can be sustained. They are (1) error of law apparent on the face of the decree, and the pleadings and proceedings upon which it is based, exclusive of the evidence; (2) new matter which has arisen since the decree; and (3) newly-discovered evi- dence, which could not have been found and produced by the use of rea- sonable diligence, before the decree was rendered." Hill v. Phelps, 101 Fed. 650. For an extensive discussion of bills of this class, referring to many authorities, see Hendryx v. Perkins, 114 Fed. 801. See, also. Cutter V. Iowa Water Co., 96 Fed. 777, quoting with approval Foster,. Fed. Pr. § 354. 5 2 Barbour, Ch. Pr. 91; Beatty v. Barley, 97 Va. 11, 32 S. E. 794; Judson V. Stephens, 75 111. 255; Webb v. Pell, 3 Paige (N. Y.) 368; Kennedy v. Bank of Georgia, 8 How. (U. S.) 586; Caller v. Shields, 2 Stew. & P. (Ala.) 417; White v. Holman, 32 Ark. 753; Cochran v. Couper, 2 Del. Ch. 27; Mattair v. Card, 19 Fla. 455; Crooker v. Hough- ton, 61 Me. 337; Pinkney v. Jay, 12 Gill & J. (Md.) 69; Kern v. Wyatt, 89 Va. 885, 17 S. E. 549; Thompson v. Maxwell, 95 U. S. 391; Osborne (9Y7) Equity.— 62. § 921 EQUITY PLEADING AND PRACTICE. [Ch. 50 The court cannot hear evidence to show wherein the decree was erroneous in its findings of fact.* The question generally is not whether the facts found in the decree under review are in accordance with the evidence, but whether the court rendering such decree has correctly applied the law to the facts as found by it. Thus, where a decree is void for want of jurisdiction over the defendant, it may properly be vacated on a bill of re- view as for error on the face of the decree.'^ Such a bill may be brought wherever the decree is contrary to the statute law, as where a decree directed a legacy belonging to a child who had died an infant, intestate, without wife or children, to be dis- tributed among his mother, brothers, and sisters equally, where- as, by the statute of distributions, it vested entirely in the surviving father.® Error in matter of form only, though ap- parent on the face of the decree, will not warrant its reversal. The same is true of matter of abatement.® If a bill is defect- ive, advantage should be taken by demurrer, and not by bill of review.-*" But if a bill sets forth no grounds for relief, a bill of review lies to reverse a decree made for the complainant.-"^^ It V. San Diego Land & Town Co., 178 TJ. S. 22; Jourolmon v. Ewing, 56 U. S. App. 149, 85 Fed. 103. Burgess v. Pope, 92 111. 255; 2 Barbour, Ch. Pr. 91; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Hill v. Phelps, 101 Fed. 650. A bill of review can- not be entertained to correct supposed erroneous deductions or conclu- sions from the evidence. Young v. Henderson, 4 Hayw. (Tenn.) 189. 7 Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417. 8 2 Barbour, Ch. Pr. 91; Cooper, Eq. PI. 89. 9 Story, Eq. PI. § 411; 2 Barbour, Ch. Pr. 92; Hurley v. Flint, 105 U. S. 247; Saum v. Stingley, 3 Iowa, 514; Wilson v. Schaefer (Tenn.) 64 S. W. 208; Hargraves v. Lewis, 7 Ga. 110; Gary v. May, 16 Ohio, 66; Hill V. Phelps, 101 Fed. 650. 10 Goodrich v. Thompson, 88 111. 206. 11 Griggs V. Gear, 8 111. 2 ; Todd v. Laughlin's Heirs, 3 A. K. Marsh. (Ky.) 535. See Wilson v. Schaefer (Tenn.) 64 S. W. 208, discussing fully the grounds for a bill of review for error on the face of the record. In order to ascertain if there be error in the decree, the general prac- tice is to look back of the decree into the whole record of the pleadings and proceedings, including orders and masters' reports, but excluding (978) Ch. 50] BILLS OF REVIEW. § 922 will not lie for errors not in the decree, but merely in the exe- cution of the decree, where such errors are not apparent on the record, but are shown only by extrinsic evidence.^ ^ When a decision has been rendered by an appellate court upon appeal, a bill of review for errors apparent upon the face of the decree cannot be brought.^ ^ § 922. On newly-discovered matter. A bill of review also lies on newly-discovered evidence, ma- terial to the issue, if such evidence was not known until after the period at which it could be used in the cause.^* Such new- evidence. Wilson V. Scliaefer (Tenn.) 64 S. W. 208; Bnoclis v. Harrel- son, 57 Miss. 465; Winchester v. Winchester, 1 Head (Tenn.) 460; Wroten's Assignee v. Armat, 31 Grat. (Va.) 250. 12 Conover v. Musgrave, 68 111. 58. 13 2 Barbour, Ch. Pr. 91, 92; Story, Bq. PI. § 418; Southard v. Russell, 16 How. (U. S.) 547; Kingsbury v. Buckner, 134 U. S. 671; Stallworth V. Blum, '50 Ala. 46; Watkins v. Lawton, 69 Ga. 671; Pinkney v. Jay, 12 Gill & J. (Md.) 69; Ryerson v. Eldred, 18 Mich. 490; Campbell's Ex'rs v. Campbell's Ex'r, 22 Grat. (Va.) 649; Sewing-Machine Co. v. Dunbar, 32 W. Va. 335; Hurt v. Long, 90 Tenn. 445, 16 S. W. 968; State V. White, 40 Fla. 297, 24 So. 160; Nashua & L. R. Corp. v. Boston & L. R. Corp., 169 Mass. 157, 47 N. E. 606. Where a writ of error has been dismissed on the ground that the error assigned did not specify and point out wherein the decree was erroneous, a bill of review will not lie for the errors contained in such decree. Hall v. Huff, 76 Ga. 337. The lower court has no jurisdiction to review decrees entered by it in obedience to a mandate of the court of review, because of errors of law or fact alleged to have been committed by such court of review in rendering its judgment, and the attempted exercise of such jurisdiction will be restrained by prohibition. State v. White, 40 Fla. 297, 24 So. 160; State v. Superior Court of Spokane County, 8 Wash. 591, 36 Pac. 443. 1*2 Barbour, Ch. Pr. 92; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861; Alder v. Van Kirk Land & Construction Co., 114 Ala. 551, 21 So. 490; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Wood V. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Judson v. Stephens, 75 111. 255; Kennedy v. Bank of Georgia, 8 How. (U. S.) 586; Cochran v. Rison, 20 Ala. 463; Crooker v. Houghton, 61 Me. 337; Mayo v. Clancy, 57 Miss. 674; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Riddle's Estate, 19 Pa. 431; Doyle v. New York & N. E. R. Co., 14 R. I. 55; Barnum v. McDaniels, 6 Vt. 177; Campbell's Ex'rs v. Campbell's Ex'r, 22 Grat. (Va.) 649; Hilts v. Ladd, 35 Or. 237, 58 Pac. 32. (9Y9) § 922 EQUITY PLEADING AND PRACTICE. ' [Ch. SO ly-discovered matter must be relevant and material, and sucli as, if known, might probably bave produced a different result.^ ^ It must be matter to prove what was before in issue, and not to make a new case, but establish an old one.^® The new facts must be such as, when combined with other proofs in the case, would authorize a different decree.-'^ It must not be matter merely impeaching testimony given at the former hearing.^* The new matter which will authorize a review of a final decree must have arisen after its rendition.^' Matter purely cumula- tive and inconclusive is insuiEcient.^" The new matter should have first come to the knowledge of the party after the time when it could have been used in the cause at the original hear- ing. ^^ It must not be such matter as the party could, by the use of reasonable diligence, have known, for, if there be any laches or negligence in this respect, it destroys the title to re- 15 2 Barbour, Ch. Pr. 92; Boyden v. Reed, 55 111. 458; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Blake v. Foster, 2 Moll. 357. 16 2 Barbour, Ch. Pr. 92; Boyden v. Reed, 55 111. 458; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856. 17 2 Barbour, Ch. Pr. 92; Banks v. Long, 79 Ala. 319; Simpson v. Watts, 6 Rich. Bq. (S. C.) 364, 62 Am. Dec. 392; Ryerson v. Eldred, 23 Mich. 537; Hatcher's Adm'r v. Hatcher's Heirs, 77 Va. 600; Sayre V. King, 17 W. Va. 562; Quick v. Lilly, 3 N. J. Eq. 255; Allgood v. Bank of Piedmont, 130 Ala. 237, 29 So. 855; Jourolmon v. Ewing, 56 U. S. App. 149, 85 Fed. 103. 18 Boyden v. Reed, 55 111. 458; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Southard v. Russell, 16 How. (U. S.) 547. 19 Hill V. Phelps, 101 Fed. 650. 20 Aholtz V. Durfee, 122 111. 286, 13 N. E. 645; McDougald's Adm'r v. Dougherty, 39 Ala. 409; Moody v. Farr, 27 Miss. 788; Kern v. Wyatt, 89 Va. 885, 17 S. E. 549; Fuller v. Jackson (Tenn. Ch. App.) 62 S. W. 274; Adamski v. Wieczorek, 93 111. App. 357; Society of Shakers at Pleasant Hill v. Watson, 47 U. S. App. 170, 77 Fed. 512; Traphagen v. Voorhees, 45 N. J. Eq. 41, 16 Atl. 198; United States v. Throckmorton, 98 U. S. 61. 212 Barbour, Ch. Pr. 92; Hodges v. Mullikin, 1 Bland (Md.) 503; Mc- Guire v. Gallagher, 95 Tenn. 349, 32 S. W. 209 ; Murphy v. City of Savan- nah, 73 Ga. 263; Hill v. Phelps, 101 Fed. 650; City of Omaha v. Redick, 27 U S. App. 204, 63 Fed. 1. See, also. Society of Shakers at Pleasant Hill V. Watson, 37 U. S. App. 141, 77 Fed. 512, citing approvingly Beach, Mod. Eq. Pr. § 862. (980) Ch. 50] BILLS OF REVIEW. § 922 lief.^^ It is laid down that matter discovered after a decree has been made, though not capable of being used as evidence of anything which was previously in issue in the cause, but con- stituting an entirely new issue, may be the subject of a bill of 22 2 Barbour, Ch. Pr. 92; Watts v. Rice, 192 111. 123, 61 N. E. 337; Hughs V. Jones, 2 Md. Ch. 289; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Bingham v. Dawson, Jac. 243; Hatcher's Adm'r v. Hatcher's Heirs, 77 Va. 600; Finlayson v. Lipscomb, 16 Fla. 751; Taylor v. Boardman, 25 Mich. 527; Fuller V. Jackson (Tenn. Ch. App.) 62 S. W. 274. "In Young v. Keigh- Jy, 16 Ves. 348, * * * Lord Chancellor Eldon remarked that the deci- sions allowing bills of review are not applicable where the original cause did not admit the introduction of the evidence, as not having been put In issue. Mr. Justice Story, in Dexter v. Arnold, 5 Mason, 303, 313, Fed. Cas. No. 3,856, apparently regarded this as the general rule. Never- theless, the later authorities do not permit a formulated rule of this character; and * * * all that can be said in this behalf is that, under some circumstances, the fact that a petitioner for review was originally contented to rest his case on certain issues ought to bar him from calling on equity to aid him to present new issues after he has been defeated as the result of protracted litigation in the princi- pal cause. * « * "^ith reference to the nature and degree of dili- gence which must be shown in a petition of this character, Lord Bacon's rule, as given by the supreme court in Purcell v. Miner, 4 Wall. (U. S.) 519, 521, requires that the new proof 'could not possibly have been used at the time when the decree was passed.' Story, Eq. PI. (10th Ed.) § 414, says that it must be such as the party, by the use of rea- sonable diligence, could not have known. The necessity of enforcing this rule strictly with reference to anticipatory matter was stated in Re Gamewell Fire Alarm Telegraph Co., 33 U. S. App. 452, 73 Fed. 908. * » * Lord Eldon suggests an illustration in the way of an omis- sion to look into a box for instruments which no human prudence would have suggested, and he says that such an omission will not pre- vent a bill of review. This, of course, is an extreme hypothesis." Boston & R. Electric St. Ry. Co. v. Bemis Car-Box Co., 98 Fed. 121. It is not sufficient where it appears that the newly-discovered evidence was known to complainant's solicitor in season to be used, although not to the complainant himself. Schaefer v. Wunderle, 154 ill. 577, 39 N. E. 623. See, for effect of absence of counsel upon decision of case, Saunders v. Savage (Tenn. Ch. App.) 63 S. W. 218; Quarrier v. Car- ter's Representatives, 4 Hen. & M. (Va.) 242; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 490; Schaefer v. Wunderle, 154 111. 577, 39 N. E. 623. See, for diligence necessary in discovering newly-discovered evidence, Hill V. Phelps, 101 Fed. 650, citing approvingly Foster, Fed. Pr. § 188 note; 1 Barbour, Ch. Pr. 363, 364; Story, Bq. PL §§ 338a, 423. (981) § 922 EQUITY PLEADING AND PRACTIC5B. [Ch. 50 review, or a supplemental bill in the nature of a bill of review, if it is the only mode of obtaining relief.^* Such a bill will also lie after an aifirmance of the decree upon appeal.^* The 23 2 Barbour, Ch. Pr. 93; Roberts v. Kingsly, 1 Ves. Sr. 238; Part- ridge V. Usborne, 5 Russ. 195; Randolph's Ex'r v. Randolph's Bx'rs, 1 Hen. &M. (Va.) 180. 2*2 Barbour, Ch. Pr. 93; Story, Bq. PL § 418; Connolly t. Connolly, 32 Grat. (Va.) 661; Sewing Machine Co. v. Dunbar, 32 W. Va. 335, 9 S. E. 237; Pinkney v. Jay, 12 Gill & J. (Md.) 69; Putnam v. Clark, 35 N. J. Eq. 145. See, however. Hurt v. Long, 90 Tenn. 445, 16 S. W. 968. Such a bill will not be allowed unless the right is reserved in the de- cree of the appellate court, or permission be given on direct application thereto for such purpose. In re Gamewell Fire Alarm Telegraph Co., 33 V. S. App. 452, 73 Fed. 908; Southard v. Russell, 16 How. (U. S.) 547; Watson v. Stevens, 53 Fed. 31; Stafford v. Bryan, 2 Paige (N. Y.) 45; Barbon v. Searle, 1 Vern. 418; Pittsburgh, C, C. & St. L. Ry. Co. V. Keokuk & H. Bridge Co., 107 Fed. 781; Seymour v. White County, 92 Fed. 115; Society of Shakers at Pleasant Hill v. Watson, 47 U. S. App. 170, 77 Fed. 512. This doctrine has been repudiated in Putnam v. Clark, 35 N. J. Eq. 149, holding that the court of chancery has inher- ent power, without consent of the appellate tribunal, to review, on the ground of newly-discovered evidence, its decree, though it has been passed upon appeal. See, on this point, Schaefer v. Wunderle, 154 111. 577, 39 N. E. 623; Hall v. Waddill, 78 Miss. 16, 27 So. 936, where the question is at length considered. For form of order entered by court of review, see In re Gamewell Fire Alarm Telegraph Co., 33 U. S. App. 452, 73 Fed. 908. "The settled rule of practice is that an ap- plication for leave to file a bill of review must be made to the court of original jurisdiction, where the action was begun, and whose decree is sought to be reviewed. 3 Enc. PI. & Pr. pp. 573-575, and notes. A dis- tinction has sometimes been made (where an appeal has been prose- cuted, and the appellate court has rendered a decree), between cases affirmed and reversed, as to whether the application should be made to the appellate court or the trial court; it being said that, where the appellate court has reversed and remanded the case, application should be made to the appellate court for leave to file the bill of review in the trial court, since otherwise such an application to the trial court would be to review, not its own decree, but the decree of the appellate court, which proceeding, it is said, would be unseemly. Kimberly v. Arms, 40 Fed. 554; Southard v. Russell, 16 How. (U. S.) 547, 14 L. Ed. 1052. * * * The true distinction is not as between decrees affirmed and reversed, but between the bills of review based on alleged error of law apparent on the record and those based on newly-discovered evidence. In the former case no bill of review could be filed at all when the ap- pellate tribunal had affirmed. In the latter the application should be (982) Ch. SO] BILLS OP REVIEW. § 923 granting of a bill of review on newly-discovered evidence is not a matter of right, but rests in the sound discretion of the court. It may therefore be refused, although the facts, if admitted, would change the decree, wherever the court, looking at all the circumstances, shall deem it productive of mischief to innocent parties, or for any other cause unadvisable.^^ § 923. Effect of previous bill. A bill of review may be brought after one bill of the same na- ture already filed. Thus, if, upon a bill of review, a decree has made to the court below, whetlier the case has been aifirmed or re- versed, since in the latter case the effort is to secure a review on facts new and material, different from those supporting the original decree. It is, in such case, not so much a review of the original decree, look- ing to the evidence alone on which it was rested, as a rehearing be- cause of such new and material facts. We cannot approve what is said on this subject in Southard v. Russell, supra. We approve and adopt as the correct rule what is said in Putnam v. Clark, 35 N. J. Eq. 149, which is also approved by the learned editors of 3 Enc. PI. & Pr. p. 575, and also the courts whose decisions are cited in note 3, p. 574, of said volume. The supreme court of Massachusetts, in Gale v. Nick- erson, 144 Mass. 418, 11 N. E. 719, emphatically approve the rule we have announced, and which is announced in Putnam v. Clark, supra, saying: 'By entertaining a motion for a new trial the probate court does not overrule the decision of this court. It decides that, by rea- son of newly-discovered evidence, a new case is made out, which this court has never passed upon.' " Hall v. Waddill, 78 Miss. 16, 27 So. 936. See, also, Bloxham v. Florida Cent. & P. R. Co., 39 Fla. 243, 22 So. 697, which extensively reviews this question. The right to review a case where permission is granted by the appellate court is limited to the scope of such permission. Reynolds v. Florida Cent. & P. R. Co., (Fla.) 28 So. 861. In the seventh circuit, the circuit court of appeals says it is the better practice to grant leave to file a bill of review in the lower court, in the absence of special circumstances, as a matter of course. Seymour v. White County, 92 Fed. 115. 25 2 Barbour, Ch. Pr. 93; Story, Eq. PI. § 417; Jacks v. Adair, 33 Ark. 161; United States v. Samperyac, 1 Hempst. 118, Fed. Cas. No. 16.216a; Bennet v. Lee, 2 Atk. 528; Ricker v. Powell, 100 U. S. 104; Hollings- worth V. McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545. See Wilson V. Schaefer (Tenn.) 64 S. W. 208, considering at length when such a bill will lie. (983) § 925 EQUITY PLEADING AND PRACTICE. [Ch. SO been reversed, another bill of review may be brought upon the decree of reversal.^® i 924. lies only to final decree. A bill of review lies only to a final decree. An interlocutory decree, if erroneous, may be corrected by application to the court.^^ § 925. Parties to bills of review. No one can sustain a bill of review who is not prejudiced by the decree complained of.^® A party cannot file a bill of re- view if he has no interest in the question intended to be pre- sented thereby, and when he cannot be benefited by a reversal or modification of the former decree. Persons having an interest in the cause, if not aggrieved by the particular errors assigned in the decree, cannot maintain a bill of review, even though the decree affect injuriously third persons. The discovery of a right to entitle a party to file a bill of review for new matter must be in the party who files the bill.^® ISTo persons except the parties and their privies in representation, such as heirs, 23 2 Barbour, Ch. Pr. 93; Cooper, Eq. PL 92; Neal v. Robinson, 1 Dick- ens, 15. See, however, Longwortli v. Sturges, 6 Ohio St. 143; Stafford V. Bryan, 2 Paige (N. Y.) 45. 2^2 Barbour, Ch. Pr. 93; Mackey v. Bell, 2 Munf. (Va.) 523; Ellzey V. Lane's Bx'x, 2 Hen. & M. (Va.) 589; Banks v. Anderson, 2 Hen. & M. (Va.) 20; Cook's Heirs v. Bay, 4 How. (Miss.) 485; Jenkins v. Bldredge, 3 Story, 299, Fed. Cas. No. 7,267; Field v. Williamson, 4 Sandf. Ch. (N. Y.) 613; Murray v. Murphy, 39 Miss. 214; Clark v. Gar- rett, 6 Lea (Tenn.) 262; Fuller v. Jackson (Tenn. Ch. App.) 62 S. W. 274; Read v. Franklin (Tenn. Ch. App.) 60 S. W. 215; Savage v. John- son, 125 Ala. 673, 28 So. 553. 28 Wilson v. Schaefer (Tenn.) 64 S. W. 208; Allgood v. Bank of Pied- mont, 130 Ala. 237, 29 So. 855. 28 2 Barbour, Ch. Pr. 94; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Goodrich v. Thompson, 88 111. 206; Wortley v. Birkhead, 2 Ves. Sr. 576; Webb v. Pell, 3 Paige (N. Y.) 368; Thomas v. Brocken- brough, 10 Wheat. (U. S.) 146; Poole v. Nixon, Fed. Cas. No. 11,270; Harris 'v. Hanie, 37 Ark. 348; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Chancellor v. Spencer, 40 W. Va. 337, 21 S. B. 1011; Heermans v. Montague (Va.) 20 S. E. 899. (984) Ch. 50] BILLS OF REVIEW. | 926 executors, and administrators can have a "bill of review," strict- ly so called. Other persons in interest, in privity of title or es- tate, are entitled to maintain an original bill in the nature of a bill of review.^" Such a bill may be brought by a party who obtains an original decree in his own favor, if such decree was injurious to him.*^ A defendant may file a bill of review.^^ If a decree is made against a tenant for life, a remainderman may file a bill.^^ All parties to the original bill ought to be made parties to the bill of review.^* All parties whose inter- ests are to be affected by the original decree are necessary par- ties.^s § 926. Bills of review by infants. It is held that an infant may maintain a bill of review to set aside a decree for fraud or error on the face of the record.^® The infant may also file an original bill for relief, not being, like an adult, restricted to a rehearing or a bill of review. This 30 2 Barbour, Ch. Pr. 94; Thompson v. Maxwell, 95 U. S. 391; Gilll- land V. Cullum, 6 Lea (Tenn.) 521; Gibson v. Green's Adm'r, 89 Va. 524, 16 S. B. 661, 37 Am. St. Rep. 888; Amiss v. McGinnis, 12 W. Va. 371. A person, though not a party to the suit, but having an interest in the subject-matter thereof, may bring a bill to review it if his inter- est is affected by the decree. Paul v. Frierson, 21 Fla. 529; Lester v. Mathews, 58 Ga. 403; Clarkson v. Morgan's Devisees, 6 B. Mon. (Ky.) 441. 312 Barbour, Ch. Pr. 94; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856. 32 2 Barbour, Ch. Pr. 94; Osborne v. Usher, 6 Brown, Pari. Cas. 20. ssMitford, Eq. PI. 92; 2 Barbour, Ch. Pr. 94. 3*2 Barbour, Ch. Pr. 94; Cooper, Eg. PI. 95; Dexter v. Arnold, 5 Ma- son, 303, Fed. Cas. No. 3,856; Bank of United States v. White, 8 Pet. (U. S.) 262; Amiss v. McGinnis, 12 W. Va. 371; King v. Dundee Mort- gage & Trust Inv. Co., 28 Fed. 33; Lester v. Mathews, 58 Ga. 403; Friley V. Hendricks, 27 Miss. 412; McGlathery v. Richardson, 129 Ala. 653, 29 So. 665. 35 Turner v. Berry, 8 111. 541; Creed v. Lancaster Bank, 1 Ohio St. 1. It has been held, however, that a bill of review lies against those who were parties to the original decree, and against them only. Cochran v. Couper, 2 Del. Ch. 27. 36 Coffin V. Argo, 134 111. 276, 24 N. E. 1068. (985) § 930 EQUITY PLEADING AND PRACTICE. [Ch. 50 may be done at any time before the attainment of majority, or afterwards, within the time within which he could successfully prosecute a writ of error to reverse a decree.^^ § 927. Does not lie generally to consent decrees. A decree by consent cannot be reversed, set aside, or im- peached by a bill of review, except for fraud, unless it appears that the consent was not in fact given, or that something was inserted as by consent that was not consented to.^* § 928. Pro confesso decrees. Where a party was informed of every fact which he pro- poses to introduce as a defense when he abandoned his case, and permitted a decree p7'o confesso to go against him, he should not be allowed to file a bill of review.^* § 929. Pending appeal. In Tennessee it is held that a bill of review will not lie pend- ing an appeal from the decree sought to be reviewed.*" § 930. Complainant must have performed decree. The complainant in a bill of review must, as a general rule, 37 Grimes v. Grimes, 143 111. 550, 32 N. B. 847; Richmond v. Tayleur, 1 P. Wms. 734; Loyd v. Mansell, 2 P. Wms. 73; Sheldon v. Aland, 3 P. Wms. 110; Robinson v. Robinson, 2 Ves. Sr. 225. In Tennessee it is held that minors attempting to review decrees stand upon the same footing, and must resort to the same methods, as other persons. Hurt v. Long, 90 Tenn. 445, 16 S. W. 968. See, also, supra, § 709 et seq. 38Knobloch v. Mueller, 123 111. 554, 17 N. B. 696; Thompson v. Max- well, 95 U. S. 391; Cunningham v. Schley, 68 Ga. 105; Vincent v. Mat- thews, 15 R. I. 509, 8 Atl. 704; Webb v. Webb, 3 Swanst. 658; Camden V. Ferrell (W. Va.) 40 S. E. 368; Watts v. Rice, 192 111. 123, 61 N. E. 337. A failure to raise any question in the original proceedings may perhaps amount to an acquiescence in the decree. HofEman v. Knox, 50 Fed. 491. See, also, as to consent decrees, supra, §§ 704, 711. 39McDaniel v. James, 23 111. 407; Gullett v. Housh, 7 Blackf. (Ind.) 52; Camden v. Ferrell (W. Va.) 40 S. E. 368. 40 Fuller v. Jackson (Tenn. Ch. App.) 62 S. W. 274; Wallen v. Huff, 1 Tenn. Cas. 4; Frazer v. Sypert, 5 Sneed (Tenn.) 101. (986) TCll.^O] BILLS OF REVIEW. § 930 show that he has performed the decree. This was required by one of the ordinances of Lord Bacon.*^ Therefore, if the de- cree be for the payment of money, the party must pay it, or give security, although it should afterwards be ordered to be refimded.*^ So, where the decree is for land, the complainant must give possession.** This rule may be dispensed with un- der the circumstances of each case. Thus, where the party is in execution for nonpayment of money under the decree, it is considered equivalent to performing; so where the party is insolvent, or has given security for the performance of the decree.** The construction of the rule is that the party need only perform so much of the decree as at the time of filing his bill he is bound to perform. Whatever he is then bound to do, he must do before he files his bill; but the permission to file it is upon the implied engagement that the original decree shall be performed, and, on failure to do so, the bill may be dismissed on application.*^ If there are circumstances bring- *i2 Barbour, Ch. Pr. 96; Williams v. Mellish, 1 Vern. 117; Wiser v. Blachly, 2 Jotms. Ch. (N. Y.) 489; Griggs v. Gear, 8 III. 2; Harback v. Gear, 8 111. 18; Bruscbke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417; Livingston v. Hubbs, 3 Johns. Ch. (N. Y.) 124; Kutt- ner v. Haines, 135 111. 382, 25 N. E. 752, 25 Am. St. Rep. 370; Hurley v. Flint, 105 U. S. 247; Swan v. Wright, 3 Woods, 587, Fed. Gas. No. 13,670; Hoffman v. Pearson, 8 U. S. App. 19, 50 Fed. 484. This rule ap- plies not only to bills of review, but to all bills in the nature of bills of review, which seek to disturb decrees already rendered. Swan v. Wright, 3 Woods, 587, Fed. Gas. No. 13,670. 42 2 Barbour, Ch. Pr. 96; Manufacturers Paper Go. v. Lindblom, 68 111. App. 545; Hoffman v. Pearson, 8 U. S. App. 19, 50 Fed. 484; Durham V. Liddell, 2 Brown, Pari. Cas. 63. 43Kuttner v. Haines, 135 111. 382, 25 N. B. 752, 25 Am. St. Rep. 370; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. If the decree has not been performed at the time of the filing of the bill, the court may give the complainant a reasonable time to do so. Swan v. Wright, 3 Woods, 587, Fed. Cas. No. 13,670. a 2 Barbour, Ch. Pr. 96; Livingston v. Hubbs, 3 Johns. Gh. (N. Y.) 124; Stalling's Adm'r v. Goodloe's Ex'rs, 7 N. C. 159; Griggs v. Gear, 8 111. 2. Placing the amount of a decree in the hands of the master in bank notes is such a substantial compliance with the order of the court as will authorize a bill of review. Taylor v. Person, 9 N. C. 298. i5 2 Barbour, Gh. Pr. 96; Partridge v. TJsborne, 5 Russ. 251. (987) § 923 EQUITY PLEADING AND PRACTICE. [Ch. 50 ing the complainant within exceptions to the general rule, he should show them to the court, and obtain relief from performing before filing his bill.'"' The performance of the decree, though required by the rule, is not jurisdictional. It is wholly a mat- ter of personal right of the defendant, upon which he may or may not object.*'^ Where the defendant would object that the decree has not been performed, he must move to strike the bill from the files, or to dismiss the suit, upon his first appearance. If he demurs or answers, thus treating the bill as regularly filed, the objection will be treated as waived.** Compliance with a decree will not deprive the party of the right to con- test its validity by a bill of review.*® § 931. Acceptance of beneit of decree. One who accepts the benefits of a decree cannot file a bill to review it.^" § 932. Within what time to be brought. In England, twenty years after the pronouncing of the de- cree was the limitation for a bill of review for error apparent on the record.®-' In many jurisdictions, a bill of review for matters apparent on the face of the record can be brought only within the time allowed for a writ of error or an appeal, the complainant being tinder no disability.®" The time within *6Kuttner v. Haines, 135 111. 382, 25 N. B. 752, 25 Am. St. Rep. 370; Ricker v. Powell, 100 V. S. 104; Massie v. Graham, 3 McLean, 41, Fed. Cas. No. 9,263. i^ Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417. 18 Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417. 49 Kuttner v. Haines, 135 111. 382, 25 N. E. 752, 25 Am. St. Rep. 370. 50 Hill V. Phelps, 101 Fed. 650; Albright v. Oyster, 19 U. S. App. 651, 60 Fed. 644. 512 Barbour, Ch. Pr. 97; Lube, Eq. PI. 132; Cooper, Eq. PI. 92, 93; Copeland v. Bruning, 104 Fed. 169; Hendryx v. Perkins, 114 Fed. 801. 52Copeland v. Bruning, 104 Fed. 169; Jackson v. Jackson, 144 111. 274, 33 N. B. 51, 36 Am. St. Rep. 427; Chicago Building Soc. v. Haas, 111 (988) Ch. 50] BILLS OF REVIEW. § 933 which a bill of review for newly-discovered matter may be filed rests in the discretion of the court, and, where the complainant is guilty of laches, leave will be denied.^^ It is not necessary to plead that the bill is not filed within the proper time. It ought to appear on the face of the bill itself that it is so, or that the complainant is within the saving of the statute.^* § 933. Frame of the bill. It is necessary to state the former bill, and the proceedings thereon, the decree, and the point in which the complainant conceives himself aggrieved by it, and the ground of law, or matter discovered, upon which he seeks to impeach it.^^ It 111. 176; Thomas v. Brockenbrough, 10 Wheat. (U. S.) 146; Pfeltz v. Pfeltz, 1 Md. Ch. 455; Rector v. Fitzgerald, 19 U. S. App. 423, 59 Fed. 808; Halsted v. Forest Hill Co., 109 Fed. 820; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207; George v. Nowlan, 38 Or. 537, 64 Pac. 1; Smith v. Clay, Amb. 645. It makes no difference that the case remains on the docket several years after entry of the decree. That does not postpone the running of the statutory period. But where the complainant is a minor, the time of minority will be excluded, as in case of a writ of error. Jackson v. Jackson, 144 til. 274, 33 N. E. 51, 36 Am. St. Rep. 427. See, also. Reed v. Stanly, 89 Fed. 430. An at- tempted appeal to the United States supreme court, when the appeal lies properly to the circuit court of appeals, does not operate to sus- pend the running of the time within which a bill of review may be filed. Blythe v. Hinckley, 111 Fed. 827. The rule is the same as to a cross bill in the nature of a bill of review to impeach a decree. Pestel V. Primm, 109 111. 353; Bell v. Johnson, 111 111. 374. 53 Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207; Jacks V. Adair, 33 Ark. 161. 5*2 Barbour, Ch. Pr. 97; Shepherd v. Larne, 6 Munf. (Va.) 529. But see Copeland v. Bruning, 104 Fed. 169; Hyde v. Lamberson, 1 Idaho, 542. 55 2 Barbour, Ch. Pr. 97; Mitford, Eq. PI. 88; Bruschke v. Nord Chi- cago Schuetzen Verein, 145 111. 443, 34 N. E. 417; Aholtz v. Durfee, 122 HI. 286, 13 N. E. 645; Cremer's Estate, 13 Phila. (Pa.) 253; Gilchrist V. Buie, 21 N. C. 346; Rodgers v. Dibrell, 6 Lea (Tenn.) 69; Heiskell V. Galbraith (Tenn. Ch. App.) 59 S. W. 346; Amiss v. McGinnis, 12 W. Va. 371; Wethered v. Elliott, 45 W. Va. 436, 32 S. E. 209; Glover v. Jones, 95 Me. 303, 49 Atl. 1104. In some jurisdictions it is held that it must set out a copy of the bill, answer, replication, and decree in the proceedings sought to be reviewed. A mere synopsis or skeleton (989) § 933 EQUITY PLEADING AND PRACTICE. [Ch. SO seems that it is no objection to a bill that it partakes of the nature both of a bill of review on the ground of newly-discov- ered matter and a bill of review in the nature of an original bill to impeach a decree on the ground of fraud,^® or that it seeks to correct errors apparent on the face of the decree, and also sets up new matter.^'^ A bill stating newly-discovered mat- ter is in the nature of an original bill, in so far as the new matter presents an issuable fact, and therefore admitting an answer and formation of an issue, but only so far as it relates to the truth and sufficiency of the alleged new matter, and its admissibility for the purpose of affecting and opening the de- cree.°® Where the ground of the bill is newly-discovered evi- dence, the evidence must be stated.^® The names of the wit- nesses must be given, when the newly-discovered evidence first came to complainant's knowledge must be stated, and it must be shown that he has been guilty of no negligence in discover- ing it.®" It is not necessary to state, as a part of the proceed- ings in the original cause, the evidence on which the court found the facts on which it proceeded to enter the decree.^^ The bill prays simply that the decree may be reviewed and altered or reversed in the point complained of, if it has not been carried into execution; but if it has been carried into of the record is insufflcient. Kuttner v. Haines, 135 111. 382, 25 N. B. 752, 25 Am. St. Rep. 370; Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417; Dougherty v. Morgan's Ex'rs, 6 T. B. Mon. (Ky.) 151. 56 Hoyden v. Reed, 55 111. 458; Wehster v. Diamond, 36 Ark. 532; Winchester v. Winchester, 1 Head (Tenn.) 460. BTColville V. Colville, 9 Humph. (Tenn.) 524. 58 Knobloch v. Mueller, 123 111. 554, 17 N. E. 696. 59Aholtz v. Durfee, 122 111. 286, 13 N. E. 645; Gardner v. Emerson, 40 111. 296. 60 Greer v. Turner, 47 Ark. 17, 14 S. W. 383; Jenkins v. Prewitt, 5 Blackf. (Ind.) 7; Hitch v. Fenhy, 4 Md. Ch. 190; Livingston v. Noe, 1 Lea (Tenn.) 55; Whitten v. Saunders, 75 Va. 563; Reynolds v. Flor- ida Cent. & P. R. Co. (Fla.) 28 So. 861; Bartlett v. Gregory, 60 Ark. 453, 30 S. W. 1043; Buffington v. Harvey, 95 TJ. S. 99. 61 Turner v. Berry, 8 111. 541; Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. B. 417. (990) Ch. 50] BILLS OF REVIEW. § 934 execution, the bill should also pray that the party complaining of the former decree be put into the situation in which he would have been if that decree had not been executed. If brought to review the reversal of the former decree, it may pray that the original decree may stand.®^ If the original suit has abated, the bill may also, at the same time, be a bill of i-evivor. A supplemental bill may be added if any event has happened re- quiring it, and particularly if any person not a party to the original suit becomes interested in the subject.^* A bill of review defective in frame may sometimes be sustained as a cross bill.®* A bill of review should aver performance of, or inability to perform, the decree sought to be reviewed.®^ A bill of review for newly-discovered matter must be verified.®® § 934. Form of bill of review for errors of law. [Title of court and cause, and address, to the court.] Complaining, shows unto your honors your orator, A. B., of, etc.: That on or about , C. D., of, etc. [the defendant hereinafter named], exhibited his bill in this honorable court against your orator, and thereby set forth that [insert substance of original bill], and praying [set out prayer verbatim]. And your orator, being served with a subpoena for that purpose, appeared and put in his answer to the said bill, to the effect following: [Insert substance of answer.] And the said C. D. replied to the said answer, and issue having been joined, and witnesses examined, and the proofs closed, the said cause was brought to a hearing before your honors on the day of , when a decree was pronounced, which was afterwards settled and entered, by which it was ordered, adjudged, and decreed that [set forth the decree]. And your orator further shows unto your honors that the said decree has since, and on or about the day of , been duly 62 2 Barbour, Ch. Pr. 97, 98; Cooper, Eq. PI. 95; Mitford, Eq. PL 89. 63 2 Barbour, Ch. Pr. 98. In a bill of review on the ground of newly- discovered evidence, the proper prayer is the reversal of the decree, and to retry the cause on the original record, upon the original and new proof. Allgood v. Bank of Piedmont, 130 Ala. 237, 29 So, 855; McCall V. McCurdy, 69 Ala. 69. 64 2 Barbour, Ch. Pr. 98; Cooper, Eq. PI. 95. 65 Bruschke v. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417. 66 Berdanatti v. Sexton, 2 Tenn. Ch. 699. (991) § 935 EQUITY PLEADING AND PRACTICE. [Ch. 50 signed and enrolled; which said decree your orator insists is er- roneous, and ought to be reviewed, reversed, and set aside for many apparent errors and imperfections, inasmuch as it appears by your orator's answer [here insert the apparent error]. And no proof being made thereof, no decree ought to have been made or grounded thereon, but the said bill ought to have been dismissed for the reasons afore- said. For all which errors and imperfections in the said decree ap- pearing on the face thereof your orator has brought this, his bill of review, to be relieved in the premises. In consideration whereof, and inasmuch as such errors and imper- fections appear in the body of the said decree, your orator hopes that the said decree will be reversed and set aside, and no further pro- ceedings had thereon. To the end, therefore, that the said C. D. and his confederates may full, true, direct, and perfect answer make, upon their respective cor- poral oaths, according to the best of their knowledge, information and belief, to all and singular the matters and things aforesaid [or, if an answer under oath is waived, omit the words "upon their respective corporal oaths," and insert, "but not under oath, answer under oath being hereby waived"], and that as fully and particularly in every re- spect as if the same were here again repeated, and they thereunto particularly interrogated, and that, for the reasons and under the cir- cumstances aforesaid, the said decree may be reviewed, reversed, and set aside, and no further proceedings taken thereon: May it please your honors to grant unto your orator a writ of sub- poena issuing out of and under the seal of this honorable court, to be directed to the said C. D., commanding him by a certain day, and un- der a certain penalty, to be and appear before your honors, then and there to answer the premises, and, further, to stand to and abide such order and decree therein as shall be agreeable to equity and good conscience. And your orator will ever pray, etc. G. H., A. B., Solicitor for Complainant. Complainant.sT i 935. Form of bill of review on discovery of new matter. [Title of court and cause, and address to the court.] Humbly complaining, shows unto your honors your orator A. B., of, etc.: That on or about , C. D., of, etc., the defendant herein- after named, exhibited his bill of complaint in this honorable court against your orator, and thereby set forth, etc. [here insert the original bill]. And your orator, being duly served with process for that pur- 67 This form is taken from 2 Barbour, Ch. Pr. 561. It is to be noted that, under the practice in Illinois and some other jurisdictions, the bill and other pleadings must be set out in haec verba. See supra, § 933. (992) Ch. SO] BILLS OF REVIEW. § 935 pose, appeared and put in his answer to the said bill, to the effect fol- lowing: [Here state the substance of the answer.] And the said C. D. replied to the said answer; and issue having been joined and witnesses examined, and the proofs closed [or, the said C. D. joined issue on the answer, and], the said cause was set down to be heard, and was heard before your honors, on the day of , when a decree was pronounced whereby your honors decreed that your orator's title to the premises was valid and effectual, after which the said C. D. petitioned your honors for a rehearing, and the said cause was accordingly reheard, and a decree of reversal made by your hon- ors on the ground of the said C. D. being the heir at law of the said E. F., deceased, and which said decree of reversal was afterwards duly signed and enrolled, as by the said decree and other proceedings now remaining filed as of record in this honorable court, reference being: thereto had, will appear. And your orator shows unto your honors, by leave of this honorable court first had and obtained for that pur- pose, by way of supplement, that, since the signing of the said decre& of reversal, your orator has discovered, as the fact is, that the said B. F. was, in his lifetime, seised in his demesne as of fee of and in the hereditaments and premises in question in the said cause, and that the said E. F., while so seised, and when of sound mind, duly made and published his last will and testament in writing, bearing date on the day of , which was executed by him, and attested accord- ing to law, ajid thereby gave and devised unto the said J. W., his heirs and assigns forever, to and for his and their own absolute use and benefit, the said hereditaments and premises in question in the said cause [to which your orator- claims to be entitled as purchaser thereof from the said J. W.]. And your orator further shows unto your hon- ors that, since the said decree of reversal was so made, signed, and enrolled, as aforesaid, and on or about • . the said C. D. departed this life intestate, leaving G. H., of, etc. [the defendant hereinafter named], his heir at law, who, as such, claims to be entitled to the said hereditaments and premises, in exclusion of your orator. And your orator is advised and insists that, under the aforesaid circumstances, the said last-mentioned decree, in consequence of the discovery of such new matter as aforesaid, ought to be reviewed and reversed, and that the first decree, declaring your orator entitled to the said heredita- ments and premises, should stand and be established and confirmed; and for effectuating the same, the said several proceedings, which be- came abated by the death of the said C. D., should stand and be revived against the said G. H. as his heir at law. To the end, therefore, that the said G. H. may, upon his corporal oath, to the best and utmost of his knowledge, information, and belief, full, true, direct, and perfect answer make to all and singular the matters aforesaid [or, if an answer under oath is meant to be waived, omit the words, "upon his corporal oath," and insert the words, "the answer (993) Equity.— 63. § 936 KQUITY PLEADING AND PRACTICE. [Ch. SO under oath being hereby waived"], and that as fully and particularly as it the same were here repeated, and he distinctly interrogated thereto, and more especially that he may, in manner aforesaid, answer and set forth whether [here insert the interrogatories to be answered] ; and that the said suit may be revived against the said G. H., or that he may show good cause to the contrary, and that the said last decree, and all proceedings thereon, may be reviewed and reversed, and the said first-mentioned decree may stand and be established and con- firmed, and be added to, by the said will being declared a good and ef- fectual devise of such hereditaments and premises aforesaid; and that the said G. H. may be decreed to put your orator into possession of the said hereditaments and premises, and in the same situation, in every respect, as far as circumstances will now permit, as your orator would have been in case such last decree had never been pronounced and executed; and that your orator may have such other and further relief as to this honorable court shall seem meet, or as equity shall require : May it please your honors to grant unto your orator a writ of sub- poena to revive and answer, issuing out of and under the seal of this honorable court, to be directed to the said G. H., thereby commanding him, at a certain day and under a certain penalty, to be therein lim- ited, personally to be and appear before your honors in this honorable court, then and there to answer the premises, and to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him in the same plight and condi- tion as the same were at the time of the abatement thereof, and, further, to stand to and to abide such order and decree in the premises as to your honors shall seem meet. And your orator shall ever pray. A. B., R. S., Solicitor for Complainant. Complainant. [Add verification. ]68 § 936, In what court filed. A bill of review is filed in the court which rendered the de- cree.®* An application for leave to file a bill to review a de- es The above form is taken from Willis, Pleadings in Eq. 372. 89Windett v. Connecticut Mut. Life Ins. Co., 27 111. App. 68; Lester v. Mathews, 58 Ga. 403; Moore v. Bracken, 27 111. 23; Griggs v. Gear, 8 111. 10; Hurt v. Long, 90 Tenn. 445, 16 S. W. 968; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237; Kingsbury v. Buckner, 134 U. S. 650; Franklin Sav. Bank v. Taylor, 9 U. S. App. 406, 53 Fed. 854. A bill will not lie in a state court to review a decree of a federal court. Windett v. Connecticut Mut. Life Ins. Co., 27 111. App. 68. (994) Ch. SO] BILLS OF REVIEW. § 937 cree must be made to the court of chancery in which the de- cree was originally rendered.^" § 937. Leave to file. A bill of review for error apparent of record may be brought as a matter of right, without leave of court.''^ Leave of court must be obtained before a bill of review can be filed upon a discovery of new matter. Such leave will not be granted with- out an affidavit that the new matter could not be produced or used by the party claiming the benefit of it at the time when the decree was made. Such affidavit must state the nature of the matter, in order that the court may exercise its judgment upon its relevancy and materiality.'^^ The application for this pur- pose should be made by petition, which should state the nature of the suit, the- decree and the errors of law, or the new mat- ters, as the case may be, upon which the application is found- ed, and pray for liberty to file a bill of review to bring such decree into review. It must describe the new evidence dis- tinctly and specifically, and state when it Avas discovered, and its bearing on the decree. ^^ ISTotice of the application should be given.''* The affidavit must satisfy the court that the alleged 70 Schaefer v. Wunderle, 154 111. 577, 39 N. B. 623; McGregor v. Gardaer, 16 Iowa, 538; Putnam v. Clark, 35 N. J. Eq. 145; Slason v. Cannon, 19 Vt. 219; Parish v. Marvin, 15 Wis. 247. 712 Barbour, Ch. Pr. 95; Wood v. Wood, 59 Ark. 441, 27 S. W. 641, 43 Am. St. Rep. 42, 28 L. R. A. 157; Denson v. Denson, 33 Miss. 560; Webb V. Pell, 1 Paige (N. Y.) 564; Barnum v. McDanlels, 6 Vt. 177; Copeland v. Bruning, 104 Fed. 169; Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102; Perry v. Phellps, 17 Ves. 178. 72 2 Barbour, Ch. Pr. 95; Dunfee v. Childs, 45 W. Va. 155, 30 S. B. 102; Barton v. Barbour, 104 U. S. 126; Webster v. Diamond, 36 Ark. 532; Vaughan v. Cutrer, 49 Miss. 782; Knight v. Atkisson, 2 Tenn. Ch. 384; Hatcher's Adm'r v. Hatcher's Heirs, 77 Va. 600; Buckingham V. Corning, 29 N. J. Bq. 238; Massie v. Graham, 3 McLean, 41, Fed. Cas. No. 9,263; ColvlUe v. Colvllle, 9 Humph. (Tenn.) 524; Nichols v. Nichols' Heirs, 8 W. Va. 174; Ricker v. Powell, 100 U. S. 104; Blzas v. Elzas, 183 111. 132, 55 N. B. 673. 73 2 Barbour, Ch. Pr. 95; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861. 74 Love V. Blewit, 21 N. C. 108; Wallamet Iron Bridge Co. v. Hatch, 19 Fed. 347. (995) § 938 EQUITY PLEADING AND PRACTICE. [Ch. SO new matter was not known to the petitioner, and could not have been discovered, produced, or used by him, by the exercise of reasonable diligence, before the entry of the decree. It should be positive, and not merely upon information and belief,''^ and should state distinctly the new matter relied on, and, it is said, be supported by affidavits of witnesses by whom it is proposed to prove the facts, or some excuse shown for the omission. ^^ It is not sufficient to state that the petitioner expects to prove certain facts. He must state the exact evidence to establish them. On the hearing of such petition, affidavits may be admitted on both sides, if necessary, to explain the nature of the evi- dence. '^'^ Upon such application, leave to file a bill of review is not a matter of right, but of discretion.''^ The court may refuse it to the party applying, and grant it for the protection of others.'^' If the bill is filed vdthout leave, it will be dismissed on motion.^" § 938. Form of order to file bill of review. [Title of court and cause.] On reading and filing the petition of A. B., defendant, praying for 'BSohaefer v. Wunderle, 154 111. 577, 39 N. E. 623; "Whitten v. Saun- ders, 75 Va. 573. 78 Cole V. Littledale, 63 111. App. 490; Schaefer v. Wunderle, 154 111. 577, 39 N. E. 623. 77 2 Barbour, Ch. Pr. 95; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Long v. Cranberry, 2 Tenn. Ch. 85; Blandy v. Grifath, 6 Fish. Pat. Cas. 434, Fed. Cas. No. 1,530; Loth v. Loth, 116 Mich. 634, 74 N. W. 1046. 78 2 Barbour, Ch. Pr. 95; Cole v. Littledale, 63 111. App. 490; HoUings- worth V. McDonald, 2 Har. & J. (Md.) 230; Thomas v. Brocbenbrough, 10 Wheat. (U. S.) 146; Murrell v. Smith, 51 Ala. 301; Winchester v. Winchester, 1 Head (Tenn.) 460; Ricker v. Powell, 100 U. S. 104; Stockley v. Stockley, 93 Mich. 307, 53 N. W. 523; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861. 78 2 Barbour, Ch. Pr. 95; Hodges v. MuUikin, 1 Bland (Md.) 511. 80 2 Barbour, Ch. Pr. 96; Carroll v. Parran, 1 Bland (Md.) 125; Webster v. Diamond, 36 Ark. 532. It is held in some cases that it may be raised by demurrer. Henderson v. Cook, 4 Drew. 306; Finley V. Taylor, 8 Baxt. (Tenn.) 237. But see Dance v. McGregor, 5 Humph. (Tenn.) 428. (996) Ch. 50] BILLS OF REVIEW. § 941 leave to file a bill of review in this cause, and on hearing J. S., so- licitor for the petitioner, and G. H., solicitor for C. D., it is, on motion on behalf of said petitioner, ordered that the said A. B., on deposit of the sum of one hundred dollars as security for costs, be at liberty to file a bill of review touching the several matters In said petition mentioned, and for relief in the premises as he may be advised.si § 939. Form of order by appellate court granting leave to file bill of review. [Title of court and cause.] The petition of the G. Company for permission to present to the United States circuit court for the district of Massachusetts a peti- tion for leave to file a bill of review having come on to be heard, now, after hearing R. D., Esq., on behalf of the petition, and O. R., Esq., in opposition thereto, it is ordered that permission be and the same is hereby granted to the petitioners to present to the said Unit- ed States circuit court for the district of Massachusetts, within ten days from the entry of this order, the annexed proposed bill of re- view, and to apply for leave of said circuit court to file the same, and proceed thereunder.sa i 940. Security to adverse party. Under the English practice, on filing a bill of review, the complainant must make the like deposit, or give security to the adverse party, in the same amount which would be required on an appeal from the decree complained of. The court might permit this to be done nunc pro tunc, on failure to do so when the bill was filed.** The court may by an order dispense with this rule.** i 941. Process upon bills of review. Where a bill of review is filed, process should be taken out as in ordinary cases.* , 86 81 This form of order is taken from Dickinson, Ch. Prec. 547. See, also, 2 Barbour, Ch. Pr. 564, where the words, "on giving the usual security," are substituted for the words, "on deposit of the sum of one hundred dollars as security for costs." 82 The above form is taken from In re Gamewell Pire-Alarm Tele- graph Co., 33 U. S. App. 452, 73 Fed. 908. 83 2 Barbour, Ch. Pr. 96; Webb v. Pell, 1 Paige (N. Y.) 564; Quick V. Lilly, 3 N. J. Eq. 255. 84 Davis V. Speiden, 104 U. S. 83. 85 Webb V. Pell, 1 Paige (N. Y.) 564; Bush v. United States, 13 Fed. (997) § 943 EQUITY PLEADING AND PRACTICE. [Ch. 60 § 942. Taking bills of review pro confesso. Bills of review may be taken i^ro confesso, and distinct and positive allegations therein may be taken as true, without proof.*® § 943. Defenses. The usual defense to a bill of review for alleged errors ap- parent on the decree is to plead the former decree in bar of the suit, and object by demurrer to the opening of the enroll- ment, alleging, as the ground of demurrer, that there is no error in the decree. If the bill is brought on new matter, fit- ting to be answered, the defendant must put in an answer, or plead thereto.®^ 625. See Heermans v. Montague (Va.) 20 S. E. 899. Where a sub- poena was taken out upon a bill of review, and a bona fide attempt made to serve it, it was held to be a sufficient commencement of a suit, although the subpoena was not, in fact, served within the time allowed by law for appealing from the decree. Webb v. Pell, 1 Paige (N. Y.) 564. Upon a bill of review to correct a decree given in favor of the United States, the subpoena may be served upon the district attorney. Bush v. United States, 13 Fed. 625. It is said that a bill of review does not constitute a part of the original cause, but is an in- dependent proceeding. The appearance of the defendant is enforced in the same manner as on an original bill. The case proceeds upon such bill as an original bill. 2 Daniell, Ch. PI. & Pr. (4th Ed.) 1574, note, citing Cole v. Miller, 32 Miss. 89; 2 Hoffman, Ch. Pr. 12. See, for substituted service, supra, § 129. 88 United States v. Samperyac, 1 Hempst. 118, Fed. Cas. No. 16,216a. 8t2 Barbour, Ch. Pr. 98; Lube, Bq. PI. 132; Dexter v. Arnold, 5 Ma- son, 303, Fed. Cas. No. 3,856; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861. A defense that the decree in the original cause was entered by consent must be pleaded or insisted on in the answer. Turner v. Berry, 8 111. 541. The regular defense to a bill of review for error apparent is to plead the decree in bar to the new suit, and to demur to opening the enrollment on the ground that the errors as- signed were not such as to entitle the complainant to have the de- cree reviewed, much less reversed. The first question, therefore, is whether the enrollment should be opened and the decree reviewed, and this is argued upon the demurrer, when nothing can be read but what appeared upon the face of the decree. If the demurrer is overruled, then arises the second question, whether the decree ought to be re- versed, and the complainant is at liberty to read bill and answer or (998) Ch. 50] BILLS OF REVIEW. § 944 § 944. Plea. If the decree is fully and fairly stated in the bill of review, it is unnecessary to plead it.*® Where any matter beyond a decree, as length of time, a purchase for a valuable considera- tion, or any other matter, is to be offered against opening the decree, that matter must be pleaded.®^ If a bill of review is based on discovery of new matter, it is liable to any plea which would have avoided the effect of such matter if charged in the original bill.®** To such a bill, a plea could be put in on the ground that such alleged new matter was known to the com- plainant in time to have been used in the original suit, and it would seem that a plea would lie where the newly-discovered matter might, by the exercise of reasonable diligence, have been any other evidence, as at a rehearing, the cause being equally open. 2 Barbour, Ch. Pr. 100; Lube, Eq. PL 248. "When a bill of review is brought for error apparent, according to the English practice, the usual method is for the defendant to put in a plea and demurrer, — a plea of the decree, and a demurrer against opening the enrollment, — so that, in effect, a bill of review cannot be brought without having the leave of the court in some shape; for if it be for matter appearing in the body of the decree, then, upon plea and demurrer of the de- fendant to the bill, the court judges whether there are any grounds for opening the enrollment. If it be for matter come to the plaintiff's knowledge after pronouncing the decree, then, upon a petition for leave to bring a bill of review, the court will judge if there be any foundation for such leave. Wyatt, Pr. Reg. p. 79. The defendant gen- erally puts in the usual demurrer, — that there is nq error in the decree. He rarely or ever answers unless ordered thereto by the court, and, the demurrer being set down to be argued, the court proceeds to af- firm or reverse the decree, and the prevailing party takes the deposit. * * * In the case now before this court, the defendants have thought fit to desert the usual course of proceedings, according to the above practice, and have put in their answer instead of demurring. But upon a bill of review for error apparent, no distinction has been discovered between an answer and a demurrer, because in both cases the court will judge whether there be error in the body of the decree." Burch V. Scott, 1 Gill & J. (Md.) 393. 88 2 Barbour, Ch. Pr. 98; Webb v. Pell, 1 Paige (N. Y.) 564; Mitford, Bq. PI. 203; Jones v. Kenrick, 5 Brown, Pari. Cas. 244; Slingsby v. Hale, 1 Ch. Cas. 122. 89 2 Barbour, Ch. Pr. 98; Mitford, Eq. PI. 291, 292. *»o2 Barbour, Ch. Pr. 98. (999) § 945 EQUITY PLEADING AND PRACTICE. [Ch. 50 known to the complainant in time for use in the original cause.®^ A demurrer sustained to a former bill of review is an effectual bar to a new bill of review on the same grounds, and may be pleaded accordingly.®^ § 945. Demurrer. It is laid down in the English books that a bill of review, upon the discovery of new matter is seldom liable to demurrer, for, being exhibited only by leave of court, the ground of the bill is generally well considered before it is brought.®^ A de- murrer, however, will lie to a bill of review for new matter not relevant, though such relevancy ought to be considered when leave is given to file it. If the bill is not filed within the proper time, it is also a good cause of demurrer.®* A general demur- rer will be overruled if there is in the bill any good ground for equitable relief.®^ If the bill of review sets forth the evi- dence in the original cause, a special demurrer will lie.*® Where the decree is sought to be impeached for error apparent on its face, and the proceedings in the case are fully and fairly stated in the bill, the defense should be by demurrer, not by answer. ®'^ Failure to make a material party to the original bill a party to the bill of review is ground for demurrer. ®® A demurrer admits the truth of matters of fact alleged, if they are incon- 81 Jenkins v. Prewitt, 5 BlacM. (Ind.) 7; Cooper, Eq. PI. 304. 92 2 Bartour, Ch. Pr. 99; Pitt v. Arglass, 1 Vern. 441. {13 2 Barbour, Cli. Pr. 99; Mitford, Eq. PI. 203. See Hodges v. Mul- likin, 1 Bland (Md.) 503. 94 2 Barbour, Ch. Pr. 99; Edwards v. Carroll, 2 Brown, Pari. Cas. 98; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861; Dexter v. Arnold, 5 Mason 303, Fed. Cas. No. 3,856. 95 Buffington v. Harvey, 95 U. S. 99. 90 Buffington v. Harvey, 95 U. S. 99. 9TAxtell V. Pulsifer, 155 111. 141, 39 N. E. 615; Enochs v. Harrelson, 57 Miss. 465; "Webb v. Pell, 3 Paige (N. Y.) 368. Where the bill af- firmatively shows that it was not filed in time, the objection may be taken by demurrer; otherwise it should be made by plea or answer. Copeland v. Bruning, 104 Fed. 170; Jenkins v. Prewitt, 5 Blackf. (Ind.) 7; National Bank v. Carpenter, 101 U. S. 567. 9s Fuller v. McFarland, 6 Heisk. (Tenn.) 79. (1000) Ch. SO] BILLS OF REVIEW. § 947 sistent with the decree.®* On demurrer to a bill of review al- leging that it was filed in pursuance of an order of court, the propriety of such order cannot be considered.^'"* A demurrer will not lie on the ground that the bill does not show perform- ance of the decree sought to be reviewed.^ ''^ § 946. Answer. A defendant is bound by the answer to a bill of review filed in his behaK by his solicitor, though he did not himself read it, unless he can show mistake or fraud in filing it.-'"^ If the bill of review is brought on new matter, fitting to be answered, the defendant may put in an answer controverting the fact that the matter is newly discovered. So, if a bill is brought on newly-discovered matter, and a demurrer, or plea and demur- rer, are overruled, the defendant must answer, as matter of fact is in issue, and the cause then proceeds upon such bill as upon an original bill.^"^ New matters of fact cannot be al- leged in the answer to a bill for errors of law in the decree.-^"'' ? 947. Proceedings upon pleas and demurrers. If the bill has assigned errors of law, and the plea and de- murrer are allowed, an order to that effect is made, and that the bill be dismissed. There is then an end of the suit, as no 99 Shelton v. Van Kleeck, 106 U. S. 532. 100 Tallmadge v. Lovett, 3 Edw. Ch. (N. Y.) 563. See Hyde v. Lam- berson, 1 Idaho, 539; Forman v. Stickney, 77 111. 575. See, also, supra, I 937. 101 Cochran v. Rison, 20 Ala. 463 ; Bruschke v. Nord Chicago Schuet- zen Verein, 145 111. 433, 34 N. B. 417. 102 Putnam v. Day, 22 Wall. (U. S.) 60. 103 2 Barbour, Ch. Pr. 100; Lube, Bq. PI. 132; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Cook v. Bamfield, 3 Swanst. 607. 104 Thornton v. Stewart, 7 Leigh (Va.) 128; Edmonson v. Marshall's Heirs, 6 J. J. Marsh. (Ky.) 448. An answer admitting that the bill substantially states the pleadings and decrees in the original suit is equivalent to a demurrer, or to a plea of the former decree, and a de- murrer to the opening of the enrollment. Randall v. Payne, 1 Tenn. Ch. 452. (1001) § 949 EQUITY PLEADING AND PRACTICE. [Ch. 5^ fresh bill will be permitted after demurrer allowed."^ If the demurrer, or demurrer and plea, are overruled, the usual de- cree is that the original decree be reversed, and that the er- rors be allowed.^"® On the argument of a demurrer to a bill of review for new matter, where several errors in the decree have been assigned, if the complainant should prevail only in one,, the demurrer must be overruled.^"'^ On argument of a demur- rer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the beneiit of the demurrer to the hearing, and, on the hearing, has finally allowed the demurrer.-'*'^ § 948. Burden of proof. Where it is sought to review on the ground of fraud, the burden of proving the fraud is on the complainant in the bill of review.-'"^ § 949. What will be considered. Upon a bill of review for error of law apparent on the face of the decree, the court cannot question the truth of the find- ings, but is confined to errors apparent on the face of the de- cree. ^^^ The decree, within the meaning of the rule, includes, 105 2 Barbour, Ch. Pr. 100; Webb v. Pell, 3 Paige (N. Y.) 368; Woots V. Tucker, 2 Vern. 120; Dunny v. Filmore, 1 Vern. 135; Pitt v. Arglass, 1 Vern. 441; Carey v. Giles, 10 Ga. 9. 106 2 Barbour, Ch. Pr. 100; Cook v. Bamfield, 3 Swanst. 607; Bruschke V. Nord Chicago Schuetzen Verein, 145 111. 433, 34 N. E. 417; Carey v. Giles, 10 Ga. 9; Guerry v. Perryman, 12 Ga. 14. 107 2 Barbour, Ch. Pr. 99. 108 2 Barbour, Ch. Pr. 100; Mitford, Eq. PI. 204. A decree for re- view, whether entered upon demurrer or upon evidence heard, is in- terlocutory merely, and not open to consideration upon appeal until after the cause has proceeded de novo to a final hearing. Gardner v. Dwelling House Ins. Co., 44 111. App. 156. 109 Vanpelt v. Hutchinson, 114 111. 435, 2 N. B. 491. 110 Griggs v. Gear, 8 111. 2; Getzler v. Saroni, 18 111. 511; Ivey v. Mc- Kinnon, 84 N. C. 651; Robertson v. McCollum (Tenn. Ch. App.) 60 S. W. 170; Buffington v. Harvey, 95 TJ. S. 99; Loftis v. Butler (Tenn. Ch. App.) 58 S. W. 886. (1002) Cil. 50] BILLS OF REVIEW. § 951 according to the English practice, not merely the final judgment, but the bill, the answer, the facts found, and the adjudication thereof.^ ^^ Where facts are found which are not founded upon, or not consistent with, the averments of the bill, they must be rejected.^^^ § 950. Effect of filing the bill. The filing of a bill of review does not, of itself, operate as a suspension of the decree, or prevent its execution. Express action of the court is necessary to obtain such suspension or prevention.^^* If a bill of review is sustained, the court will order the restitution of the money paid under the decree.-'^* § 951. Costs. The court may, in its discretion, upon sustaining a bill of review, deny costs to the complainant therein,^^^ and need not order a restitution of the costs paid by the complainant upon 111 Griggs V. Gear, 8 111. 2; Ebert v. Gerding, 116 111. 216, 5 N. E. 591; Caller v. Shields, 2 Stew. & P. (Ala.) 417; Sharp v. Shenandoah Fur- nace Co. (Va.) 40 S. E. 103; Putnam v. Day, 22 Wall. (U. S.) 60. 112 Griggs V. Gear, 8 111. 2; Harback v. Gear, 8 111. 18. iisBurch v. Scott, 1 Gill & J. (Md.) 393, 402. For staying execution of decree complained of, see Cochran v. Rison, 20 Ala. 463; Bennett v. Brown, 56 Ga. 216; Denson v. Denson, 33 Miss. 560; Hogan v. Davis, 3 Ala. 70; Manufacturers' Paper Co. v. Lindblom, 68 111. App. 539. "Ac- cording to the English law, neither the filing of a petition for rehear- ing, nor a bill in the nature of a bill of review, nor a bill of review for error apparent on the face of the decree, nor a bill of review for new matter after leave given, nor an original bill to set aside a decree on the ground of fraud, nor a bill to open an enrolled decree, and let in the merits, has ever, or under any circumstances, been considered, in itself, as a suspension of the execution of the decree. The party hav- ing the decree in all such cases is allowed to proceed unless specially and expressly restrained, which is never done but on the sum decreed being brought into court, or on good security being given. Similar law and practice have been long established here." 11* Nelson v. Suddarth, 1 Hen. & M. (Va.) 350. See Miller v. Clark, 52 Fed. 900; Burch v. Scott, 1 Gill & J. (Md.) 293. 115 Miller v. Clark, 52 Fed. 900. (1003) § 951 EQUITY PLEADING AND PRACTICE. [Ch. 50 the dismissal of his bill for want of equity in the original "6 Miller v. Clark, 52 Fed. 900. See, also, Mickle v. Maxfield, 42 Mich. 304, 3 N. "W. 961. (1004) CHAPTER LI. BILLS TO IMPEACH DECREE FOR FRAUD. § 952. In general. A court of equity is always open to hear complaints of fraud committed by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court, but it will scrutinize the conduct of the parties, and, if it finds that they have been guilty of fraud in obtaining a decree, it will de- prive them of the benefit of it, and of any inequitable advantage which they have derived under it, and will restore the parties to their former situation, whatever their rights may be.^ Eelief is sought by an original bill. There is no instance of its being done by petition, although it seems once to have been thought that a decree, as well as any interlocutory order, could be set iHendryx v. Perkins, 114 Fed. 801; Mitford, Eq. PI. 92, 94; Cooper, Eq. pi. 96; Story, Bq. PI. § 426; Kemp v. Squire, 1 Ves. Sr. 205; Calla- way V. Alexander, 8 Leigh (Va.) 114; Farwell v. Great Western Tele- graph Co., 161 111. 522, 44 N. E. 891; Herbert v. Rowles, 30 Md. 278; Hitch V. Fenhy, 4 Md. Ch. 190. A bill of this sort is an original bill in the nature of a bill of review. Story, Eq. PI. § 426; Mussel v. Morgan, 3 Brown Ch. 74; Raskins v. Rose, 2 Lea (Tenn.) 708; Ex parte Smith, 34 Ala. 455; Singleton v. Singleton, 8 B. Mon. (Ky.) 340. "The difCer- ence between a bill of review and a bill to impeach for fraud (the bill now under discussion partaking of the nature of both) is well set out in the case of Berdanatti v. Sexton, 2 Tenn. Ch. 704, where the court says: 'The object and effect of a bill for fraud, even if the fraud con- sists of want of notice, are to vacate the former decree, not to retry the case; whereas the object and effect of a bill of review are to reverse the decree, so far as it is erroneous, and to retry the case upon the original record, or the original record and new proof, as the bill is for error ap- parent or newly-discovered evidence.' " Wilson v. Schaefer (Tenn.) 64 S. W. 208. (1005) § 952 EQUITY PLEADING AND PRACTICE. [Ch. 51 aside for fraud by petition only.^ When a decree lias been made by consent, and the consent has been fraudulently obtained, the party aggrieved can only be relieved by original bill.^ And where the enrollment of the decree by one party is a fraud or surprise upon the other, it may be vacated.* In order to set aside for fraud a decree, actual, positive fraud must be shown. Mere constructive fraud has been held insufficient, at all events, after long delay.^ Besides cases of direct fraud in obtaining a decree, it seems to have been considered that, where a decree has been made against a trustee, the ces- tui que trust not being before the court, and the trust not dis- covered, or against a person who has made some conveyance or incumbrance not discovered, or when a decree has been made in favor of or against an heir when the ancestor has in fact disposed by will of the subject-matter of the suit, the conceal- ment of the trust, or subsequent conveyance or incumbrance, or will, ought to be treated as fraud. It has also been said that, where an improper decree has been made against an in- fant without actual fraud, it ought to be impeached by original bill.^ The fraud must be extrinsic or collateral ; that is to say, 2 Story, Eq. PI. § 426; Sheldon v. Aland, 3 P. Wms. Ill, overruled in Mussel v. Morgan, 3 Brown Ch. 74. sMitford, Eq. PI. 94; Bennett v. Hamill, 2 Schoales & L. 566. 4Mltford, Eq. PI. 94; Buck v. Fawcett, 3 P. Wms. 242; Stevens v. Guppy, 1 Turn. & R. 178. "It must be regarded as well settled that a stranger to a suit, who. If a judgment therein were given full credit and effect, would he prejudiced in regard to some pre-existing right, is permitted to impeach the judgment. Being neither a party to the ac- tion nor entitled to manage the cause or appeal from the judgment, he is allowed by law to impeach it; otherwise, he would be without remedy. 2 Freeman, Judgm. (4th Ed.) §§ 335, 505a, 512; Pacific Rail- road of Missouri v. Missouri Pac. Ry. Co., Ill U. S. 505; Sayre v. Blyton Land Co., 73 Ala. 85; Bergman v. Hutcheson, 60 Miss. 872; Carey v. Houston & T. C. Ry. Co., 150 U. S. 171; Schuster v. Rader, 13 Colo. 329, 22 Pac. 505; Palmer v. Martindell, 43 N. J. Eq. 90, 10 Atl. 802; Edson v. Cumings, 52 Mich. 52, 17 N. W. 693." Richardson v. Loree, 94 Fed. 375. 5 Patch V. Ward, 3 Ch. App. 203. eMitford, Eq. PI. 93; Story, Eq. PI. § 427; Cooper, Eq. PI. 96-98; Collins V. Loftus, 10 Leigh (Va.) 9. (1006) Ch. 51] IMPEACHMENT OF DECREE. § 954 not in the subject of the litigation,- — ^not in anything which was involved in the issues tried, — hut fraud practiced upon the party or upon the court during the trial or in prosecuting the suit, or in obtaining the decree.^ Generally, where a suc- cessful party has by meditated and intentional contrivance kept the opposing side and the court in ignorance of material and controlling facts, and thereby secured an unjust advantage -or decree, a bill will lie to impeac)' and annul such decree, but such decree will not be set aside because founded on a fraudu- lent instrument or perjured evidence, or for any matter which ivas actually presented and considered in the decree assailed.^ A decree obtained without making those persons parties to the suit in which it is had, whose rights are affected thereby, is fraudulent and void as to those parties, and even a purchaser imder it, having notice of the defect, is not protected by such a decree.® § 953. When to be filed. The period of limitation applicable to bills of review has fre- quently been adhered to in the case of bills to impeach decrees for fraud.^" § 954. Frame of bill. It should state the decree and the proceedings which led to it, with the circimistances of fraud, or whatever the ground may be on which it is impeached.^^ It must be made clearly 7 Reed V. Stanly, 89 Fed. 430; United States v. Throckmorton, 98 U. S. 61; Graver v. Faurot, 46 U. S. App. 268, 76 Fed. 257; Pittsburg, 'C, C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 107 Fed. 781. sKimberly v. Arms, 40 Fed. 548; Vance v. Burbank, 101 TJ. S. 519; United States v. Throckmorton, 98 U. S. 66; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237; Hendryx v. Perkins, 114 Fed. 801. s> Story, Eq. PI. § 427; Cooper, Eg. PL 96, 98. A decree cannot be impeached for fraud in inducing a defendant to enter an apptd,rance to save the costs of service, where defendant has ample opportunity to contest the equities asserted. Fellers v. Rainey, 82 111. 114. 10 Hendryx v. Perkins, 114 Fed. 801; Reed v. Stanly, 89 Fed. 430. See Evans v. Bacon, 99 Mass. 213; Gordon's Adm'r v. Ross, 63 Ala. 363. 11 Story. Eq. PI. § 428; Cooper, Eq. PI. 98; Mitford, Eq. PI. 94; (1007) § 955 EQUITY PLEADING AND PRACTICE. [Ch. 51 to appear that the decree has no other foundation than the fraud charged, and that, if there had been no fraud, there would have been no decree.^^ The bill must show a meritorious defense to the suit.^^ The prayer of a bill to set aside a de- cree for fraud must necessarily be varied according to the na- ture of the fraud or improper taeans used, and the extent of their operation in obtaining an improper decision of the court. ■'^^ And it may be sometimes necessary, besides the prayer for other relief adapted to the complainant's case, to pray for an injunction to prevent the enforcement of the decree. -^^ A bill to set aside a decree for fraud, for error apparent, and for newly-discovered evidence is multifarious.^® All the parties to the original suit, or their representatives, must be joined as parties. ^^ § 955. Filing the bill. A bill based solely on fraud in obtaining a decree may be filed without leave of the court rendering such decree.^* A bill to impeach for fraud a decree entered on a mandate from the Giffard v. Hort, 1 Schoales & L. 386; Kennedy v. Daly, 1 Schoales & L. 355. 12 Dringer v. Receiver of Erie Ry. Co., 42 N. J. Eq. 573, 8 Atl. 811. And the burden is on the complainant to prove the fraud alleged. Van- pelt V. Hutchinson, 114 111. 435, 2 N. E. 491. isKimberly v. Arms, 40 Fed. 548; White v. Grow, 110 U. S. 183. 1* Story, Eq. PI. § 428; Giffard v. Hort, 1 Schoales & L. 386. 15 4 Minor, Inst. Com. & St. Law (2d Ed.) 1270 (1138). On demur- rer to a hill to impeach a decree on the ground of fraud, the court cannot consider anything not contained in the bill and the exhibits thereto annexed, and cannot look into the files and records of the proceedings in the court rendering the judgment sought to be im- peached. Pacific Railroad of Missouri v. Missouri Pac. Ry. Co., Ill U. S. 505; Richardson v. Loree, 94 Fed. 375. isKimberly v. Arms, 40 Fed. 548; Perry v. Phelips, 17 Ves. 183; Campbell v. Mackay, 1 Mylne & C. 618; Attorney General v. St. John's College, 7 Sim. 254; Gordon's Adm'r v. Ross, 63 Ala. 363; Berdanatti v. Sexton, 2 Tenn. Ch. 704. iTHarwood v. Cincinnati & C. A. L. R. Co., 17 Wall. (U. S.) 78; Ralston V. Sharon, »51 Fed. 702. 18 Klmberly v. Arms, 40 Fed. 548. (1008) Oh. 51] IMPEACHMENT OF DECREE. § 955 circuit court of appeals may be iiled without leave of suck court, or of the circuit court in which it is filed.^® Upon application for leave to file a bill of review for matters of fact newly dis- covered, which are insufficient to support the bill, the court will not separate from such allegations other allegations of fraud in obtaining the original decree, and permit the bill to be filed as a bill to set aside the decree for fraud. ^° Where application is for leave to file a bill as a whole, and not in part, and if, as a whole, it requires leave, the part which, if it stood alone, could be put on file without leave, must stand or fall with the incumbrances that have been attached to it.^^ § 956. Form of bill to impeach a decree obtained by fraud. [Title of court, and address to tlie court.] Humbly complaining, shows unto your honors your orator, A. B., of, etc.: That T. B., late of, etc., deceased, your orator's late father, dur- ing his life, and on or about the day of , was seised in his demesne, as of fee, of and in the real estate hereinafter particu- larly described; and by indenture of that date, made between the said T. B. of the one part, and C. D., of, etc., the defendant herein- after named, of the other part, the said T. B., in consideration of ? , bargained, sold, and conveyed unto the said T. B., his heirs and assigns, all, etc. [here describe the mortgaged premises], subject to redemption on payment of the said principal money and lawful in- terest at the time therein mentioned, and long since past, as by the said indenture, reference being thereto had, will more fully appear. And your orator further shows that the said T. B. departed this life on or about . leaving your orator his heir at law and only child, then an infant under twenty-one years of age, that is to say, of the 19 Ritchie v. Burke, 109 Fed. 16. 2oKimberly v. Arms, 40 Fed. 548; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237. See Terry v. Commercial Bank of Alabama, 92 U. S. 454; Elliott v. Balcom, 11 Gray (Mass.) 286. 21 Kimberly v. Arms, 40 Fed. 548. A federal court has jurisdiction to set aside the decree of a federal court, irrespective of the citizen- ship of the parties to the new proceedings. Pacific Railroad of Mis- souri V. Missouri Pac. Ry. Co., Ill U. S. 505. A bill to set aside a judgment or decree of a state court on the ground of fraud may be filed in a federal court when the requisite difference of citizenship ex- ists. Marshall v. Holmes, 141 U. S. 589; Barrow v. Hunton, 99 U. S. 80; Gaines v. Fuentes, 92 U. S. 10; Johnson v. Waters, 111 TJ. S. 640; Hendryx v. Perkins, 114 Fed. 801. Equity.— G4. (1009) § 956 EQUITY PLEADING AND PRACTICE. [Ch. 51 age of seven years, or thereabouts, him surviving. And your orator further shows that, during your orator's minority, on or about , the said C. D. filed his bill of complaint in this honorable court against your orator for a foreclosure of your orator's right and equity of redemption in the said mortgaged premises, but your orator was not represented in such bill to be then an infant; and the said C. D. caused and procured one L. M., since deceased, who acted in the man- agement of the affairs of your orator's said father, to put in an an- swer in the name of your orator, and without ever acquainting your orator, or any of his friends or relations, therewith, in which said answer a much greater sum was stated to be due from your orator, on the said mortgage security, to the said C. D., than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security; and in conse- quence of such answer being put in, the said C. D. afterwards, in conjunction with the said L. M., on or about , obtained an ab- solute decree of foreclosure against your orator, which your orator has only lately discovered, and of which your orator had no notice, and in which said decree no day is given to your orator, who was an infant when the same was pronounced, to show cause against it when he came of age, as by the said proceedings, now remaining as of rec- ord in this honorable court, reference thereto being had, will more fully appear. And your orator further shows that your orator, on the day of last, attained the age of twenty-one years, and shortly afterwards, having discovered that such transactions had taken place during his minority as aforesaid, by himself and his agents, represented the same to the said C. D., and requested him to deliver up possession of the said mortgaged premises to your orator, on being paid the principal money and interest, if any, actually and fairly due thereon, which your orator offered, and has at all times been ready, to pay, and which would have been paid by the personal representatives of the said T. B. out of his personal assets, during your orator's minority, had any application been made for that pur- pose. And your orator hoped that the said C. D. would not have in- sisted on the said decree of foreclosure, so fraudulently obtained as aforesaid, but would have permitted your orator to redeem the said mortgaged premises, as he ought to have done. But now so it is, may it please your honors, the said C. D., combining and confederating with divers perStens at present unknown to your orator, whose names, when discovered, your orator prays he may be at liberty to insert herein with apt words to charge them as parties defendant hereto, and contriving how to wrong and injure your orator in the premises, he, the said 0. D., absolutely refuses to comply with such requests, and he at times pretends the said decree of foreclosure was fairly and properly obtained, and that a day was therein given to your orator, when of age, to show cause against the same, and that your orator has neglected to do so, and that your orator is neither eo- (1010) Ch. 51] IMPEACHMENT OP DECREE. § 956 titled to redeem nor to travel into the said accounis; whereas your orator charges the contrary thereof to be true, and that your orator only attained the age of twenty-one years on the said day of , and that he has since discovered the several matters afore- said by searching in the proper offices of this honorable court; and your orator expressly charges that, under the circumstances afore- said, the said decree, so fraudulently obtained, as hereinbefore men- tioned, ought to be set aside, and the complainant ought not to be pre- cluded thereby, or in any other manner, from redeeming the said mortgaged premises, of which the said C. D. has possessed himself, by such means as aforesaid. All of which actings, doings, and pre- tenses of the said defendant are contrary to equity and good con- science, and tend to the manifest wrong, injury, and oppression of your orator in the premises. In tender consideration thereof, and forasmuch as your orator is remediless in the premises, at and by the strict rules of the common law, and is only relievable in a court of equity, where matters of this nature are properly cognizable and relievable: To the end, therefore, that the said defendant, C. D., and his confederates when discovered, may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to all and singular the matters and charges afore- said, and that as fully and particularly as if the same were here again repeated, and they thereunto particularly Interrogated; and more espe- cially set forth and discover [here insert Interrogatories to be answered by defendants; or, if answer under oath is not desired, omit the words, "up- on their several and respective corporal oaths," and Insert after the words "answer make," the words, "but not under oath, answer under oath of them and each of them being hereby waived"], and that the said decree of foreclosure may, for the reasons and under the circumstances afore- said, be set aside by this honorable court, and declared to be fraud- ulent and void; and that an account may be taken of what, if any- thing, is now due to the said C. D. for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises, which have, or without his willful default might have, been received by or on behalf of the said C. D., and, if the same shall appear to have been more than the principal and interest due on the said mortgage, then that the resi- due thereof may be paid over to your orator, and that your orator may be at liberty to redeem the said mortgaged premises on payment of the principal and interest, if any, remaining due on the said se- curity; and that the said C. D. may be decreed, on being paid such principal money and interest, to deliver up possession of the said mortgaged premises, free from all incumbrances, to your orator, or as he shall appoint, and to deliver up all title deeds and writings re- lating thereto. And that your orator may have such other relief In (1011) §956 EQUITY PLEADING AND PRACTICE. [Ch. 51 the premises as the nature of this case may require, and to your hon- ors shall seem meet. [Add prayer for subpoena as in form set forth in section 822.] A. B., G. H., Complainant. Solicitor for Complainant.22 22 This form is taken from 3 Daniell, Ch. PI. & Pr. 2070, and Willis, Pleadings in Eq. 382. (1012) CHAPTER LII. BILLS TO SUSPEND OR AVOID THE OPERATION OF DECREES. § 957. lu general. The operation of a decree, signed and enrolled, has been suspended on special circiunstances, or avoided by matter sub- sequent to the decree, upon a new bill for that purpose. Thus, during the troubles after the death of Charles I., upon a de- cree of foreclosure for nonpayment of principal, interest, and costs due on a mortgage, the mortgagor at the time of pay-^ ment being forced to leave the kingdom to avoid the conse- quences of his engagements with the royal party, and having requested the mortgagee to sell the estate to the best advantage, and pay himself, which the mortgagee appeared to have ac- quiesced in, the court, upon a new bill, enlarged the time for the performance of the decree, on the ground of inevitable necessity preventing the mortgagor from complying with the strict terms of it, and also made a new decree* on the ground of matter subsequent to the former decree.^ These bills rest for their maintenance upon special circumstances.^ And it must be remembered that the embarrassments occasioned by the civil war in the reign of Charles I., and that the state of affairs before the restoration of Charles II., occasioned many extraordinary applications for relief, and perhaps induced the court to go far in extending relief. All the cases determined after the restoration, upon circumstances connected with the iMitford, Eq. PI. 94; Knight v. Bevis, 1 Ch. Gas. 61; Venables v. Foyle, 1 Ch. Cas. 2; Whorewood v. Whorewood, 1 Ch. Cas. 250; "Wakelin V. Walthal, 2 Ch. Cas. 8. For form of such bill, see Willis, Pleadings in Eq. 388. 2 4 Minor, Inst. Com. & St. Law (2d Ed.) 1270 (1138). (1013) § 957 EQUITY PLEADINO AND PRACTICE. [Ch. 52 prior disturbed state of the country, ought to be considered with caution.^ It is said by Mr. Foster that no instance is known of the maintenance of such a bill in a federal court, but that in a few cases the federal courts have sustained bills to suspend the operation and enjoin the enforcement of judgments at law for matters subsequent.* But it would seem that such bills are not unknown in this country. The operation of a de- cree has been sometimes suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus, where a decree was made within the Union lines, during the late Civil War, to foreclose a mortgage, it was held to be of no effect as to the mortgagor, if he had been forced to go, or had been, within the Confederate lines, and was prohibited from entering the Union lines; and, after the war, a bill was permitted to be filed to avoid the execution of the decree." sMitford, Eq. PI. 94. * Poster, Fed. Pr. § 359, citing Jolinson v. St. Louis, I. M. & S. Ry. Co., 141 U. S. 602; Parker v. Judges of Circuit Court of Maryland, 12 Wheat. (U. S.) 561. 5 4 Minor, Inst. Com. & Stat. Law (2d Ed.) 1270 (1138); Dean v. Nelson, 10 Wall. (U. S.) 158; Lasere v. Rochereau, 17 Wall. (XJ. S.) 437. (1014) CHAPTER LIII. BILLS TO CARRY DECREES INTO EXECUTION. § 958. In general. Sometimes, from the neglect of parties, or other cause, it be- comes impossible to carry a decree into execiition without the further decree of the court. This happens generally in cases where parties have neglected to proceed upon the decree, and their rights under it become so embarrassed by a variety of subsequent events that it is necessary to have a decree of the court to settle and ascertain them. Such a bill is sometimes exhibited by a person who was not a party, or does not claim under a party, to the original decree, but who claims in a sim- ilar interest, or is unable to obtain the determination of his own rights till the decree is carried into execution. It may be brought by or against any person claiming as assignee of a party to the decree.^ It may be brought to carry into execu- tion the judgment of an inferior court of equity, if the juris- diction of that court is not equal to the purpose, as in the case of a decree in Wales, which the defendant had avoided by flying 1 Adams, Eq. 415; Story, Bq. PI. § 429; Mitford, Eq. PI. 95; Cooper, Eq. PI. 98; 2 Barbour, Ch. Pr. 86; Root v. Woolworth, 150 V. S. 401; Wadtams v. Gay, 73 III. 415; Lancaster v. Snow, 184 111. 534, 56 N. E. 813; Oberein v. Wells, 163 111. 101, 45 N. E. 294; Jolinson v. Northey, Finch, Prec. in Ch. 134, 2 Vern. 407; Shainwald v. Lewis, 69 Fed. 487; Binks V. Binks, 2 Bligh, 593; Rylands v. Latouche, 2 Bligh, 566; Old- ham V. Eboral, 1 Coop. t. Brough. 27; Wright v. Bowden, 54 N. C. 15, 59 Am. Dec. 600; Griggs v. Detroit & M. Ry. Co., 10 Mich. 117; Helms V. Rizer, 98 Tenn. 414, 39 S. W. 718; Hogan v. Davis, 3 Ala. 70; Griffin V. Spence, 69 Ala. 393; Linton v. Potts, 5 Blackf. (Ind.) 396; Organ v. Gardiner, 1 Ch. Cas. 231; Carteret v. Paschal, 3 P. Wms. 197. (1015) § 959 EQUITY PLEADING AND PRACTICE. [Ch. 53 into England.^ Any person interested under a decree may bring a bill to carry it into execution. Any creditor, upon the same principle, may prosecute a decree for an account.* A bill for this purpose is generally partly an original bill and partly a bill in the nature of an original bill, although not strictly original, and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied accordingly.* § 959. Proceedings of court on such bill. The court in these cases generally only enforces and does not vary the decree, but, upon circumstances, it has sometimes re- considered the original directions, and varied them in case of mistake; and it has even, on circumstances, refused to enforce the decree, although, in other cases, the court and the house of lords, upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution.^ On an original bill to carry a former decree into execution, the court may look into the original case, and see if the original decree is equitable and just, and, if it is not, refuse its enforcement.® Thus, where a decree of partition, 2Mitford, Bq. PI. 96; Story, Eq. PI. § 431; Morgan v. , 1 Atk. 408. See Galbraith v. Neville, 5 East, 475, note. 3 Story, Eq. PI. § 837. 4 2 Barbour, Ch. Pr. 88; Story, Eq. PI. § 432; Mitford, Eq. PI. 97; Pott V. Gallini, 1 Sim. & S. 206. See Lancaster v. Snow, 184 111. 534, 56 N. E. 813; 2 Barbour, Ch. Pr. 86. 5 Story, Eq. PI. § 430; Cooper, Eq. PI. 99; Attorney General v. Day, 1 Ves. Sr. 218; Johnson v. Northey, Finch, Prec. in Ch. 134, 2 Vern. 407; Smythe v. Clay, 1 Brown, Pari. Cas. 453; West v. Skip, 1 Ves. Sr. 239; Carneal v. Wilson, 3 Litt. (Ky.) 80. See Greenup v. Rennix, Hardin (Ky.) 603; Rogers v. Rogers, 15 B. Mon. (Ky.) 364; Tomllnson V. McKaig, 5 Gill (Md.) 256; Dunlap's Heirs v. Mcllvoy, 3 Litt. (Ky.) 269. 6 Story, Bq. PI. § 641; Wadhams v. Gay, 73 111. 415, citing Adams, Eq. 416, and 2 Daniell, Ch. PL & Pr. (4th Ed.) 1586; Lawrence v. Berney, 2 Ch. R. 127; O'Connell v. McNamara, 3 Dru. & War. 411; Bean V. Smith, 2 Mason, 252, Fed. Cas. No. 1,174; Hamilton v. Houghton, 2 Bligh, 169; Lancaster v. Snow, 184 111. 534, 56 N. E. 813. See, also, Cooper, Bq. PI. 99; Mitford, Eq. PI. 95, 96. (1016) Ch. 53] BILLS TO EXECUTE DECREES. § 959 in defining one party's interest under a will, found erroneously that he had only a life estate as to one-sixth of the land, and that the remainder was in his children, when in fact the will gave him the absolute title, and although the decree appeared to have been by consent, when the proof showed that such was not true, on a bill by his heirs after his death against his gran- tee to have the original decree carried into effect, it was held that relief was not to be granted.'^ A court of equity will not enforce a voluntary contract or an unexecuted gift, or complete what it find imperfect, when the transaction is incomplete and there is no consideration. The same principle applies to an execiitory decree in its nature a family settlement. A gift capable of be- ing made by a legal conveyance is as imperfect when created by an executory decree as if by an executory contract.^ When a party comes into court asking for the benefit of a former de- cree, he must be prepared to show, if the case requires it, that such decree was right.® It is said that, although the original decree may be controverted upon the failure to carry it into execution, it is only the defendant in the new suit who can call it in question. The complainant never can. He must, if dissatisfied with the decree, impeach it either by bill of re- view, or some proceeding of that nature.^" Bills to carry de- crees into execution are open to few peculiar causes of demur- rer. Where, upon the face of a bill to carry a decree into ex- ecution, the complainant appears to have no right to the bene- fit of the decree, the defendant may avail himself of the objec- tion by demurrer.^ ^ If a complainant filing a bill to carry a decree into execution happens to have no right or interest, TWadhams v. Gay, 73 111. 415. aWadhams v. Gay, 73 111. 415. 9 O'Connell v. McNamara, 3 Dru. & War. 411. 10 2 Barbour, Ch. Pr. 88; Robinson v. Robinson, 2 Ves. Sr. 225; Shep- herd V. Titley, 2 Atk. 348. 11 Story, Eq. PI. § 641; Cooper, Bq. PI. 218. See Hamilton v. Hough- ton, 2 Bligh, 169. (lOlY) § 960 EQUITY PLEADING AND PRACTICE. [Ch. 53 and such fact is not so apparent in the bill as to admit of a demurrer, the defendant may offer it by way of plea.^^ § 960. Form of bill to carry decree into execution. [Title of court and cause, and address to the court.] Complaining, shows unto your honor your orator, A. B., of, etc.: That your orator, on or about , filed his bill of complaint in this honorable court against C. D., stating [set out substance of a bill for partition], and praying [set out prayer verbatim']. And your orator further shows that, process of subpoena being served upon the said defendant, he appeared to the said bill and put in his answer thereto, to which a replication was filed. And the said cause being at issue, the same came on to be heard before your honor on or about , when a decree was made by your honor directing that a commission should issue to certain commissioners to be therein named, to make partition of the estate in question, and that the said estate was to be divided and separated, and one-third part thereof set out in severalty, and declared to belong to the said C. D. and his heirs, and the remaining two-thirds part thereof declared to belong absolutely to your orator, to be held in severalty by him; and the respective parties were decreed to convey their several shares to each other, to hold In severalty, according to their respective undivided shares thereof, and that it should be referred to P. G., one of the masters of this court residing in the county of , to settle the conveyances, in case the parties differed about the same, as by the said proceedings and decree now remaining as of record in this hon- orable court, reference being ihereunto had, will more fully appear. And your orator further shows unto your honor that the commis- sion awarded by the said decree never issued, on account of the said C. D. going abroad, and being, until lately, out of the jurisdiction of this honorable court; but the said C. D. having now returned, and the inconvenience mentioned in your orator's former bill still exist- ing, your orator is desirous of having the said decree 'forthwith car- ried into execution, but from the great length of time which has elapsed, and the refusal of the said C. D. to concur therein, your orator is advised the same cannot be done without the assistance of this honorable court. To the end, therefore, that the said C. D. and his confederates may full, true, direct, and perfect answer make, upon their respective cor- poral oaths, according to the best of their knowledge, information, and belief, to all and singular the matters and things aforesaid [or, if an answer under oath is waived, omit the words, "upon their respective 12 Story, Eq. PI. § 837; Cooper, Bq. PL 305, 306; Mitford, Kq. PI. 293; Beames, Pleas in Bq. 307, 308. (1018) Ch. S3] BILLS TO EXECUTE DECREES. § 960 corporal oaths," and insert, "but not under oath, answer under oath being hereby waived"], and that as fully and particularly in every re- spect as if the same were here again repeated, and they thereunto particularly interrogated. And that the said decree may be directed to be forthwith carried specifically into execution, and the said C. D. ordered to do and concur in all necessary acts for that purpose. May it please your honor to grant unto your orator a writ of sub- poena issuing out of and under the seal of this honorable court, to be directed to the said C. D., commanding him, by a certain day and under a certain penalty, to be and appear before your honor, then and there to answer the premises, and, further, to stand to and abide by such order and decree therein as shall be agreeable to equity and good conscience. And your orator will ever pray, etc. A. B., G. H., Complainant. Solicitor for Complainant.is 13 This form is taken from Willis, Pleadings in Eq. 391. (1019) CHAPTER LIV. BILLS IN THE NATURE OF BILLS OF REVIEW. § 961. Definition and general nature. The only distinction between a bill of review and a bill in the nature of a bill of review consists in the enrollment or non- enrollment of the decree, a bill of review in the former case being proper, and a bill in the nature of a bill of review lying in the latter case.-' This distinction between a bill of review and a bill in the nature of a bill of review, though formerly important in England, is not observed in the practice of the federal courts, and perhaps rarely in any of the state courts of equity, where, as a general rule, 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.^ It is to be observed that no persons, except parties and their privies in representation, such as heirs, executors, or administrators can maintain a bill of review; but other persons in interest and privity of title or estate, who are aggrieved by the decree, such as devisees and re- maindermen, can maintain a bill in the nature of a bill of review.* Lord Eedesdale said concerning such a bill: "If 1 Story, Eq. PI. § 421; Standish v. Radley, 2 Atk. 178; Perry v. Phelips, 17 Ves. 173; Fort Wayne Electric Corp. v. Franklin Electric Light Co., 57 N. J. Eq. 7, 41 Atl. 666; Singleton v. Singleton, 8 B. Mon. (Ky.) 340. See, for forms of this bill, Willis, Pleadings in Bq. 376, 378. = Dexter v. Arnold, 5 Mason, 303, Fed. Gas. No. 3,856; Singleton v. Singleton, 8 B. Mon. (Ky.) 340; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581. See, also. Baker v. Whiting, 1 Story, 218, Fed. Gas. No. 786. In some of the states a hill in the nature of a bill of review is no longer used. Burch v. Scott, 1 Gill & J. (Md.) 393, 400; Owens v. Love, 9 Fla. 325. 3 Story, Eq. PI. § 409; Mitford, Eq. PI. 92; Whiting v. Bank of United States, 13 Pet. (U. S.) 6; Wehb v. Pell, 3 Paige (N. Y.) 368; Dunklin v. Harvey, 56 Ala. 177; Jenkins v. Eldredge, 3 Story, 307 Fed. Gas. No. (1020) Ch. 54] BILLS OF REVIVOR. § 961 a decree is made against a person who has no interest at all in the matter in dispute, or had not such an interest as was suffi- cient to render the decree against him binding upon some per- son claiming the same or a similar interest, relief may be ob- tained against error in the decree by a bill in the nature of a bill of review. Thus, if a decree is made against a tenant for life only, a remainderman in tail or in fee cannot defeat the proceedings against the tenant for life but by a bill showing the error in the decree, the incompetency of the tenant for life to sustain such a suit, and the accruer of his own interest, and thereupon praying that the proceedings in the original cause may be reviewed, and, for that purpose, that the other party may appear to and answer this new bill, and the rights of the parties may be properly ascertained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court."* Under the English practice it was doubted whether a bill in the nature of a bill of review could be filed upon matter of law, as the decree could be investigated by a petition for rehearing.^ The true office of the bill as used where the practice of enrolling decrees no longer exists is to bring new matter of fact before the court, which has been discovered since publication.® Such new matter is brought forward by a supplemental bill, or a new bill in the nature of a bill of review, and it ought to be accompanied by a petition to rehear the original cause at the same time that it is heard upon the supplemental bill. Such supplemental bill cannot be filed without leave of court, nor without an affidavit 7,267; Thompson v. Maxwell, 95 U. S. 391; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Poole v. Nixon, 9 Pet. Append. 770, Fed. Gas. No. 11,270. See Singleton v. Singleton, 8 B. Hon. (Ky.) 340. i Mitford, Eq. PI. 92. 5 Story, Eq. PI. § 421, note; Mitford, Eq. PI. 91; Perry v. Phelips, 17 Ves. 173; Pendleton v. Fay, 3 Paige (N. Y.) 204; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 6 Story, Eq. PI. § 422. (1021) § 961 EQUITY PLEADING AND PRACTICE. [Ch. 54 similar to that required for a bill of review.^ An original bill in the nature of a bill of review lies to review only a final, not an interlocutory, decree.^ A bill of review may be incorporated in- to such a supplemental bill.® It must be filed as soon after the new matter is discovered as it reasonably may be, for a party will not be permitted to file such a bill where he has been guilty of laches.-^° A bill in the nature of a bill of review in its frame nearly resembles a bill of review, except that, instead of pray- ing that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new mat- ter at the same time that it is reheard upon the original bill.-'-^ ^Mitford, Eq. PI. 91, 92; Story, Eq. PI. § 422; Hyman v. Smith, 10 W. Va. 298. 8 Bates V. Great Western Telegraph Co., 35 111. App. 254; Story, Eq. PI. §§ 408a, 421. 9 Story, Eq. PL § 422; Perry v. Phelips, 17 Ves. 173; Pendleton v. Fay, 3 Paige (N. Y.) 204. 10 Story, Eq. PI. § 423. Where, after a cause has heen submitted to the court on a bill to set aside a conveyance made in fraud of creditors, and confirm the title to the land in the complainant as purchaser of the same under execution, the decree being entered of the term the cause is submitted, the judgment under which the same was made is reversed, the defendant may, on application at the next term, obtain a rehearing, if he is entitled to the benefit of the reversal; or he may file a bill in the nature of a bill of review upon newly-discovered mat- ter, and thus obtain relief. Gould v. Sternberg, 128 111. 510, 21 N. E. 628. 112 Daniell, Ch. PI. & Pr. (4th Ed.) 1581, citing Story, Eq. PI. § 425. For parties to bills in the nature of bills of review, see Maxwell Land Grant & Railway Co. v. Thompson, 1 N. M. 603. (1022) CHAPTER LV. BILLS IN THE NATURE OF BILLS OF REVIVOR. § 963. Definition and general nature. When the interest of a party dying is transmitted to another in such a manner that the transmission may be litigated in the court of chancery, as in the case of a devise, the suit is not per- mitted to be continued by bill of revivor, but such person, if he succeeds to the interest of a complainant, is entitled to the benefit of the former suit; and if he succeeds to the interest of a defendant, the complainant is entitled to the benefit of the former suit against him, and this benefit is to be obtained by an original bill in the nature of a bill of revivor.^ A devisee or alienee cannot maintain a bill of revivor, but he may main- tain a bill in the nature of a bill of revivor.^ Cases of bank- ruptcy and insolvency are cases v^here the question of title may be put in issue and litigated.* Such a bill is said to be original merely for want of that privity of title between the party to the former bill, and the party to the latter, though claiming the same interest, which would have permitted the continuance of the suit by a bill of revivor. Therefore, where the validity of the alleged transmission of interest is established, the party to the new bill will be equally bound by, or have advantage of, the 12 Barbour, Ch. Pr. 81; Story, Eq. PI. § 378; Mitford, Eq. PL 71, 97; Douglass v. Sherman, 2 Paige (N. Y.) 358; Wilkinson v. Parish, 3 Paige (N. Y.) 653. See, supra, § 849. 2 Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 317; Pendle- ton V. Fay, 3 Paige (N. Y.) 205; Russell's Heirs v. Craig's Devisee, 3 Bibb (Ky.) 377; Lyons v. Van Riper, 26 N. J. Eq. 337; Peer v. Cook- erow, 14 N. J. Eq. 361; Backhouse v. Middleton, 1 Ch. Cas. 174. 3 2 Barbour, Ch. Pr. 36; Monteith v. Taylor, 9 Ves. 615; Mendham v. Robinson, 1 Mylne & K. 217; Bainbrigge v. Blair, Younge, 386. (1023) § 964 EQUITY PLEADING AND PRACTICSB. [Ch. 55 proceedings on the original bill, as if there had been such a privity between him and the party to the original bill, claiming the same interest.* The suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer before an answer can be compelled to a cross bill, and every other advantage which would have attended the institution of the suit by the original bill, if it could have been continued by a bill of revivor merely.^ § 963. How it differs from a bill of revivor. The distinction between bills of revivor and bills in the na- ture of bills of revivor seems to be that the former, in case of death, are founded upon privity of blood, or representation by operation of law; the latter, in privity of estate or title by act of the party. In the former case nothing can be in contest except whether the party be heir or personal representative; in the latter, the nature and operation of the whole act by which the privity of estate or title is created is open to controversy.® Thus, the heir may be made a party by a bill of revivor, for his title is by mere operation of law ; but the devisee must come in by a bill in the nature of a bill of revivor, for he comes in as a purchaser under the testator in privity of estate or title, which may be disputed.''' § 964. How it differs from original bill in the nature of a sup- plemental bill. Upon an original bill in the nature of a bill of revivor, the benefit of the former proceedings is absolutely obtained, so that the pleadings in the first cause, and the depositions of witnesses 4 2 Barbour, Cli. Pr. 81; Story, Eq. PI. § 380; Mitford, Eq. PI. 71, 97, 98; Houlditcli v. Marquis of Donegal, 1 Sim. & S. 495. 5 2 Barbour, Ch. Pr. 81; Story, Eq. PL § 380. 8 Story, Eq. PI. § 379; 2 Barbour, Ch. Pr. 82; Peer v. Cookerow, 14 N. J. Eq. 361; Northman v. Liverpool, L. & G. Ins. Co., 1 Tenn. Ch. 317; Slack V. Walcott, 3 Mason, 508, Fed. Gas. No. 12,932. T2 Barbour, Ch. Pr. 82; Story, Eq. Pi. § 379; Harrison v. Ridley, 2 Eq. Cas. Abr. 3. Purchasers, assignees, devisees, and other persons (1024) (jh. 55] BILLS OF REVIVOR. § 965 if any have been taken, may be used in the same manner as if filed or taken in the second cause, and, if any decree has been made in the first cause, the same decree shall be made in the second. But upon an original bill in the nature of a supple- mental bill, a new defense may be made; the pleadings and depositions cannot be used in the same manner as if filed or taken in the same cause; and the decree, if any has been ob- tained, is in nowise of advantage other than as it may be an inducement to the court to make a similar decree.* § 965. Parties. A bill of this nature cannot be brought, except by some per- son who claims in privity with the complainant in the original bill. Thus, for example, if a bill is filed by a devisee under a will, and afterwards a siibsequent will is proved, the latter devisee cannot, by a bill in the nature of a supplemental bill, avail himself of the proceedings in the original bill, for there is no privity between the complainant in the original suit and the complainant in the supplemental suit. But if the bill had been filed by the devisor himself, for some matter touching the estate devised, then the second devisee might file a supplemental bill in the nature of a bill of revivor, notwithstanding the first devisee had already filed such a bill, for he derives his title solely from the devisor, independently of the first devisee.^ coming in privity of estate, but not of representation, are not com- petent to tiring a bill of revivor, but, by an original bill in tbe nature of a bill of revivor, tbey may draw to themselves tbe advantages of the former suit, in whatever stage it may be at tbe time of the abatement, and, if that happens before decree, they may carry on the suit to a final decision. Privies in estate by deed are entitled to the same benefit of the proceedings upon an original bill in the nature of a bill of revivor as privies in law are upon a bill of revivor. Slack V. Walcott, 3 Mason, 508, Fed. Gas. No. 12,932, citing Mitford, Eq. PI. 66, 88; Anonymous, 1 Atk. 88, 571; Harrison v. Ridley, 2 Comyn, 589; Huet V. Say, Sel. Gas. t. King, 53; Gilbert, Forum Rom. p. 172. s2 Barbour, Gh. Pr. 82; Mitford, Eq. PI. 72; Story, Eq. PL § 384; Lloyd V. Johnes, 9 Ves. 37. Story, Bq. PI. § 385; 2 Barbour, Gh. Pr. 83; Oldham v. Eboral, Coop. t. Brough. 27; Rylands v. Latouche, 2 Bligh, 566; Tonkin v. (1025) Equity. — 65. § 967 EQUITY PLEADING AND PRACTICE. [Ch. 55 Where a bill in the nature of a bill of revivor is filed by any one who was not a party to the original suit, either as the rep- resentative of a deceased party or otherwise, all of the other parties to such original suit who have any interest in the fur- ther proceedings therein should be made parties to such bill, either as complainants or defendants.^" Wherever there has been a devise of real estate, and the design is to revive the suit, either in favor of or against the devisee the devisee and heir must both be made parties complainant or defendant.^-' § 966. Frame of such a bill. An original bill in the nature of a bill of revivor should, in general, state the same facts as a bill of revivor. It should state the original bill, the proceedings upon it, the abatement, and the manner in which the interest of the party deceased has been transmitted. It must also charge the validity of the trans- mission, and state the rights which have accrued by it.^^ The bill should also pray that the suit may be revived, and that the complainant may have the benefit of the former proceed- ings thereon.-'^ § 967. Form of bill in the nature of bill of revivor. [Title of court and cause, and address to tlie court] Humbly complaining, shows unto your honors your orator, A. B., of, etc.: That on or about the 1st day of May, A. D. 1900, one G. H., of, etc., filed his bill of complaint in this honorable court against C. D., of., etc., thereby stating [setting forth material parts of bill for specific performance of contract to convey land], and praying [set out prayer verbatim'] ; that the said C. D., being served with process of summons, appeared to said bill, and put in his answer thereto, and the said G. H. filed his replication to said answer, and that, said cause Lethbridge, Coop. 43; Slack v. Walcott, 3 Mason, 508, Fed. Cas. No. 12,932. 10 2 Barbour, Ch. Pr. 82 ; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538. 11 Peer v. Cookerow, 14 N. J. Bo. 301. 12 2 Barbour, Ch. Pr. 83; Mitford, Bq. PI. 97; Phelps v. Sproule, 4 Sim. 318; Pingree v. Coffin, 12 Gray (Mass.) 288, 319. 13 2 Barbour, Ch. Pr. 83 ; Phelps v. Sproule, 4 Sim. 318. (1026) Ch. 55] BILLS OF REVIVOR. § 957 being at issue, witnesses were examined on botli sides, and proofs closed, as by said bill, answer, and proceedings now remaining as of record in this honorable court, reference being thereto had, will more fully appear. Your orator further shows that, before any further proceedings were had in said suit, and on the day of , A. D. 19 — , he, the said G. H., departed this life, leaving J. H., the other defendant here- inafter named, his only son and heir, him surviving, and having pre- viously made and published his last will and testament in writing, bearing date on the day of . 18 — . and executed 'and at- tested so as to pass real estate, and having thereby given and devised the said messuage and hereditaments so contracted to be purchased by him as aforesaid, to your orator, his heirs and assigns, and hav- ing appointed your orator sole executor thereof, as in and by the said will, when produced, will more fully appear. Your orator further shows that the said will was, on, to-wit, the day of , A. D. 19 — , duly admitted to probate by the pro- bate court of county, in the state of r, whereby your orator became the legal personal representative of the said G. H., as by the letters testamentary issued by said probate court of county will more fully appear. Your orator charges that, by virtue of the devise so made to your •orator, as aforesaid, he is entitled to stand in the place of the said G. H., with respect to the said agreement of the' day of , A. D. 18 — , and to have the same specifically performed, and to have the said messuage and hereditaments conveyed by the said C. D. to your orator and his heirs, upon payment of the said sum of dollars, which sum your orator hereby offers to pay. And your orator charges that, by the death of the said G. H., the said suit and proceedings became abated, but that your orator is, as he is advised, entitled to have the same revived against the said C. D., and to have the same relief against him as the said G. H. would be entitled to if he were still living. And your orator charges that the said J. H., as heir at law of the said G. H., sometimes, though without any ground, questions the validity of the said devise to your orator, and is therefore, as your orator is advised, a necessary party to this suit. To the end, therefore, that the said C. D. and J. H., who are made defendants hereto, may, if they can, show why the said suit and proceed- ings should not be revived, and your orator have the relief thereby prayed, and may make full, true, direct, and perfect answer to all and singular the premises, but not under oath, an answer under oath being hereby expressly waived [if an answer under oath is desired, insert: "And may, upon their several and respective corporal oaths, according to the best and utmost of their several and respective knowledge, remem- brance, information, and belief, full, true, direct, and perfect answer make to all and singular the premises, and more particularly whether, (1027) § 968 EQUITY PLEADING AND PRACTICE. [Ch. 55 etc."], and that it may be declared that your orator, as such devisee of the said G. H., as aforesaid, is entitled to revive the said suit and pro- ceedings so become abated, as aforesaid, and to have the benefit thereof, and that the said suit and proceedings may be decreed to stand and be revived accordingly, and to be in the same plight and condition as they were in at the time of the said abatement, and that your orator may have the same relief against the said defendant, C. D., as the said G. H. would be entitled to if he were living, and, if necessary for that purpose, that the said will of the said G. H. may be established, and that your orator may have such other and further relief as to the court shall seem meet and equitable [prayer for subpoena against C. D. and J. H., as in form in section 69, supra]. A. B., L. M., Complainant. Solicitor for Complainant.i^ § 968. Defense to and proceedings upon such bills. Bills of this nature are liable to demurrers or pleas, on the same grounds as original bills and bills of revivor, of whose nature they partake. The practice as to demurring, pleading to, and answering them, and in all other respects, also, is the same as that upon original bills. -"^ Such bills must be brought on for hearing in the same manner, before any benefit can be derived from them. A revivor in such cases is obtained only by decree, and not by an order to revive, as in the case of an ordinary bill of revivor.-'® 14 This form is taken from 2 Barbour, Ch. Pr. 553. See Willis, Plead- ings in Bq. 394. 15 2 Barbour, Ch. Pr. 83, 84. 16 2 Barbour, Ch. Pr. 84. (1028) CHAPTER LVI. BILLS IN THE NATURE OF SUPPLEMENTAL BILLS. § 969. Definition and general nature. Cases frequently occur in which the interest of an original party to the suit is completely determined, and another party becomes interested in the subject-matter by a title not derived from the original party, but in such a manner as to render it but just and reasonable that the benefit of the former proceed- ings should be had, by or against such other party, without in- curring the expense and risk of commencing an entirely new proceeding. In such cases the benefit of the former proceed- ings may be obtained by means of a bill called an "original bill in the nature of a supplemental bill."^ Thus, where a sole complainant, suing in his own right, is deprived of his whole interest in the matters in question by an event subsequent to the institution of the suit, as in the case of a bankrupt whose whole property is transferred to assignees, or in case such com- plainant assigns his whole interest to another, the complainant being no longer able to prosecute, for want of interest, and his assignee claiming by a title which may be litigated, the benefit of the proceeding must be sought by an original bill in the na- ture of a supplemental bill.^ So when, pending a bill brought 1 2 Barbour, Ch. Pr. 84. See, supra, § 73. See Mitford, Eq. PL 67, 68, 77; Foster v. Deacon, 6 Madd. 59; Lloyd v. Johnes, 9 Ves. 54. 2 2 Barbour, Cb. Pr. 85; Story, Eq. PI. § 349; Anonymous, 1 Atk. 88; Binks V. Binks, 2 Bligb, 593; Ross v. City of Fort Wayne, 58 Fed. 404; Hazleton Tripod-Boiler Co. v. Citizens' St. Ry. Co., 72 Fed. 325; Foster V. Deacon, 6 Madd. 59; Trabue v. Bankbead, 2 Tenn. Cb. 412; Campbell V. City of New York, 35 Fed. 14; Walter Baker & Co. v. Baker, 89 Fed. 673; Curtis Davis & Co. v. Smitb, 105 Fed. 949; Root v. Woolworth, 150 U. S. 401; Tappan v. Smitb, 5 Biss. 73, Fed. Cas. No. 13,748; Mason v. York & C. R. Co., 52 Me. 82; Mills v. Hoag, 7 Paige (N. Y.) 18; (1029) §969 EQUITY PLEADING AND PRACTICE. [Ch. 56 for the infringement of a patent, the complainant assigned the patent to a stranger, the assignee was compelled to resort to an original bill in the nature of a supplemental bill, in order to obtain the benefit of the assignor's bill.^ When an event happens, subsequent to the time of filing an original bill, which gives a new interest in the matter of the suit to any person not a party to the bill, or which gives a new inter- est to a party upon the happening of some other contingency, the defect may be supplied by a bill which is usually called a "supplemental bill," and is in fact merely so with re- spect to the rest of the suit, although with respect to its im- mediate object, and against any new party, it has in some degree the effect of an original bill.* A bill in the nature of a supplemental bill may also be required, not only where new interests arise, but also where relief of a different kind or upon a different principle is required from that in the original bill.^ Such a bill is not in all cases either proper or necessary, mere- ly because new events have occurred since the original bill, but the facts must be material to the original cause, or be such as could not, in that stage of the original cause, be brought into it without such bill.® Fulton V. Greacen, 44 N. J. Eq. 443,- 15 Atl. 287; Sedgwick v. Cleve- land, 7 Paige (N. Y.) 287. A purchaser of a contract which is the subject of a pending suit may file a bill in the nature of a supple- mental bill to set up his interest, and obtain the benefit of the pro- ceedings theretofore had, and leave to file the same will not be denied, even after final hearing, and the direction of a decree for the original complainant. Hazleton Tripod Boiler Co. v. Citizens' St. Ry. Co., 72 Fed. 325. Where a defendant corporation has dissolved, it is proper practice for the complainant to bring in a statutory assignee by a sup- plemental bill in the nature of a bill of revivor. Chester v. Life Ass'n of America, 4 Fed. 487. 3 Ross V. City of Ft. Wayne, 58 Fed. 404. 4 Miller v. Cook, 135 111. 205, 25 N. E. 756, citing Story, Eq. PI. § 346; Mitford, Eq. PI. 63. 5 McDonald v. Asay, 139 111. 123, 27 N. E. 929, citing Story, Eq. PI. § 351b; Boorman v. Sunnuchs, 42 Wis. 233; Hodson v. Ball, 11 Sim. 456. 6 Story, Eq. PI. § 352; Adams v. Dowding, 2 Madd. 53; Milner v. Harewood, 17 Ves. 144. (1030) Ch. 56] SUPPLEMENTAL BILLS. § 970 If, where there is no alteration in the interests of the par- ties, nor any particular circumstance requiring further discov- ery, but where a fact only has occurred which might be proved under the proceedings in the original bill, as in taking an ac- count before a master under the prayer of the original bill, and the relief is not varied by the supplemental matter, but the complainant may have the relief prayed for by such supple- mental bill under the original bill, the supplemental bill is improper.'^ After the direction of a decree for the complainant, it is held that leave to file a bill in the nature of a supplemental bill, for the purpose of setting up a purchase of the cause of ac- tion by a stranger, should be withheld until a decree has actually been entered in favor of the original complainant.* § 970. Distinction between supplemental bills and bills in the nature of a supplemental bill. Supplemental bills and bills in the nature of supplemental bills are frequently considered together, and by the text writers usually confounded together.^ The most prominent distinction between them, however, seems to be that a siipplemental bill is properly applicable to those cases only where the same par- ties or the same interests remain before the court, whereas an original bill in the nature of a supplemental bill is properly applicable when new parties, with new interests arising from events occurring since the institution of the suit, are brought before the court. ^^ Thus, where a surety on an appeal bond, after an affirmance of the decree appealed from, sued out an execution on the decree, and had the same levied on land in another county, title to which stood in the name of another, 7 story, Bq. PL § 352; Adams v. Dowding, 2 Madd. 53. 8 Hazelton Tripod Boiler Co. v. Citizens' St. Ry. Co., 72 Fed. 325. 9 Story, Bq. PI. § 345; Randall v. Mumford, 18 Ves. 424; Mole v. Smith, 1 Jac. & W. 53; Adams v. Dowding, 2 Madd. 53. 10 Story, Eq. PI. §§ 345, 351b, quoted in McDonald v. Asay, 139 111. 123, 27 N. E. 929; Cooper, Bq. PI. 62; Mitford, Eq. PI. 63, 64, 72; Adams V. Dowding, 2 Madd. 53; Mole v. Smith, 1 Jac. & W. 665. See, also, Gilbert, Forum Rom. 109; Williams v. Winans, 22 N. J. Bq. 573. (1031) § 970 EQUITY PLEADING AND PRACTICE. [Ch. 56 and thereupon filed what assumed to be a supplemental bill in the original case, making the party holding the legal title a defendant, who was not a party to the decree, and sought there- by to subject the land to sale under the execution, the court held that such a bill was an original bill in the nature of a supplemental bill, and should have been brought in the county where the defendant resided, and in which the lands to be af- fected were situated, and therefore dismissed the same.^^ Where a supplemental bill only is filed, if there has been no decree, the 11 McDonald v. Asay, 139 111. 123, 27 N. E. 92t-. "The difEerence be- tween an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill is defined by Lord Redesdale as follows: 'There seems to be this difEerence between an original bill in the nature of a bill of revivor and an original bill in the nature of a supplemental bill: Upon the first, the benefit of the former pro- ceedings is absolutely obtained, so that the pleadings in the first cause, and the depositions of witnesses, if any have been taken, may be used in the same manner as if filed or taken in the second cause, and, if any decree has been made in the first cause, the same decree shall be made in the second. But in the other a new defense may be made; the pleadings and depositions cannot be used in the same man- ner as if taken or filed in the same cause; and the decree, if any has been obtained, is in no otherwise of advantage than as it may be an inducement to the court to make a similar decree.' Mitford, Eq. PI. 68; Story, Eg. PI. § 349, note 2. It will be observed that Lord Redes- dale does not say that, under an original bill in the nature of a sup- plemental bill, the pleadings and depositions filed and taken in the original cause cannot be used in the second cause at all, but simply that they cannot be used in the same manner as they may under an original bill in the nature of a bill of revivor. Lord Eldon, in Lloyd V. Johnes, 9 Ves. 37, stated it as his opinion that the only real dis- tinction which exists between the rights or positions of the parties under the two different forms of pleadings is that the defendant, under an original bill In the nature of a supplemental bill, is just as much bound by the former proceedings as under an original bill in the nature of a bill of revivor, except as to any new equity or defense which may have arisen since the original bill was filed, or which he may have a right to urge against the new party coming into the liti- gation, but which did not exist against the original complainant. Making this addition to the formula given by Lord Redesdale, it will be perceived that the rule on this subject is made entirely plain, easy of application, and eminently just in its operation." Fulton v. Greacen, 44 N. J. Eq. 443, 15 Atl. 827. (1032) Ch. 56] SUPPLEMENTAL BILLS. § 97O suit may proceed, after the supplemental bill has been filed, in the same manner as if the original complainant had continued such, except that the defendants must answer the supplemental bill, and either admit or put in issue the title of the complain- ant. But upon an original bill in the nature of a supplemental bill, the whole case is open. A new defense may be made; the pleadings and depositions cannot be made use of in the same manner as if filed or taken in the same cause ; and the decree, if any has been obtained, is of no advantage, otherwise than as it may be an inducement to the court to make a similar de- cree. In a mere supplementary suit, the benefit of an original decree, if obtained, is expressly given to the new complainant by a supplementary decree, and he is declared entitled to stand in the place of the complainant in the original bill, and to have the benefit of the proceedings upon it, and to prosecute the decree and take the steps necessary to render it effectual.^^ An original bill in the nature of a supplemental bill, though partaking of the nature of a supplemental bill, is not an addi- tion to the original bill, but another original bill, which, in its consequences, may draw to itself the advantage of the proceed- ings on the former bill.^^ 12 2 Barbour, Ch. Pr. 85 ; Mitford, Eq. PI. 61. See preceding note 11. 13 Story, Eq. PI. § 353; 2 Barbour, Ch. Pr. 85; Mitford, Eq. PI. 99; Phelps'v. Sproule, 4 Sim. 318; Vigers v. Audley, 9 Sim. 75; Bowie v. Minter, 2 Ala. 406. "A supplemental bill is merely in continuation of the original suit, and filed for the purpose of filling up such a de- ficiency as does not cause a material alteration in the matter in liti- gation, or a change of the principal parties, and when, therefore, it is only requisite to add something to the former proceedings in order to attain complete justice. But an original bill in the nature of a sup- plemental bill is properly applicable when new parties, with new in- terests, arising from events since the institution of the suit, are to be brought before the court; the latter being, to all intents and purposes, the commencement of a new suit, which nevertheless may, in its con- sequences, draw to itself the advantage of the proceedings on the for- mer hill." Bowie v. Minter, 2 Ala. 406; Story, Eq. PL §§ 332, 345; Lube, Eq. PI. 136, 137; Stafford v. Howlett, 1 Paige (N. Y.) 201; Eager V. Price, 2 Paige (N. Y.) 333; Mitford, Eq. PI. 99. (1033) §972 EQUITY PLEADING AND PRACTICE. [Ch. S(f S 971. Frame of bill in the nature of a supplemental bill. A bill of this nature must state the original bill, the proceed- ings upon it, the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property has vested in the person who has become entitled. It must then show the gTound upon which the court ought to grant the benefit of the former suit to or against the person so become entitled, and pray for a sub- poena against the defendant, to the end that he may answer the premises, and that the complainant may have similar re- lief against him to that which was prayed in the original bill.^* It must pray for a decree of the court adapted to the case of the c^omplainant in the new bill.-'® § 972. Form of bill in the nature of a supplemental bill. [Title of court and cause, and address to the court.] Complaining, shows unto your honor your orator A. B., of, etc.: That [state the giving of a mortgage to W. D. by defendant, C. D.,. the nonpayment of the money, that mortgage became absolute, and mortgagee entered into possession. State, also, amount due at time of filing original bill]. And your orator shows unto your honor that, on the day of , the said W. D. exhibited his original bill of complaint in this honorable court against the said C. D. as defendant thereto, thereby stating the matters and things hereinbefore stated, and praying that an account might be taken by and under the direction and decree of this honorable court of what was due to him for principal and in- terest on his said mortgage, and that the said C. D. might be decreed to pay to him, the said W. D., or as he should direct, the amount of 14 Story, Eq. PL § 353; 2 Barbour, Ch. Pr. 86; Chase v. Searles, 45 N. H. 511. 15 Story, Ba. PI- § 319 ; Mitford, Eg. PI. 99. "The difference between a new supplemental bill and an original bill in the nature of a supple- mental bill, in respect to their frame and structure, is somewhat ma- terial. In regard to the former, it would seem to be unnecessary to set out the original bill; but, in respect to an original bill in the nature of a supplement, the rule is otherwise, requiring a recapitulation of so much of the former bill as is necessary to show the bearing of the supplemental matter. Adams, Eq. 414. See Brightly, Bq. Jur. 584; 3 Daniell, Ch. PI. & Pr. 1675; Story, Bq. PI. § 343; Vigers v. Audley, 9 Sim. 72." Chase v. Searles, 45 N. H. 511. (1034) Ch. £6] SUPPLEMENTAL BILLS. § 972 what should be so found due to him, together with the costs of that suit, by a short day, to be appointed for that purpose by this hon- orable court, the said W. D. being ready and willing, and thereby offer- ing, upon such payment being made, to reconvey the said messuage and hereditaments to the said C. D., or as he should direct, or that, in default of such payment being made [usual prayer for strict fore- closure]. And your orator further shows that the said C. D., being duly served with process, appeared to the said bill, and put in his answer thereto, to which the said W. D. replied, and that, the said cause being at issue, witnesses were examined on both sides, and the proofs closed, as by such bill, answer, and proceedings now remaining as of record in this honorable court, reference being thereto had, will more fully appear. And your orator further shows that, before any further proceedings were had in the said cause, and on or about, etc., the said W. D. did present a petition to the district court of the United States for the northern district of New York, praying for the benefit of the act entitled, "An act to establish a uniform system of bankruptcy through- out the United States," passed August 19, 1841. And such proceed- ings were thereupon had that afterwards, that is to say, on, etc., by a decree of the said district court, the said W. D. was declared a bankrupt, pursuant to the act aforesaid, by virtue of which decree all the property, effects, and rights of property of the said W. D. be- came divested out of him and vested in your orator as the official or general assignee in bankruptcy appointed and designated under the rules and regulations of the said district court [or in your orator, who was appointed by the said district court assignee of the said bankrupt], as by the said petition, decree, and other proceedings now remaining as of record in the said district court, reference being thereto had, will more fully appear. And your orator further shows that, as such assignee in bankruptcy, he has entered into possession or into the receipt of the rents and profits of the said mortgaged premises. And your orator charges that, by virtue of his said appointment, he has became entitled to the said sum of $ , so due and owing for principal and interest as aforesaid, or to such other sum as shall be found to be now due and owing for principal and interest on the said mortgage. And your orator charges that, by the said bankruptcy of the said W. D., the said suit so Instituted by him has become defective, but that your orator, as such his assignee as aforesaid, is entitled to have the benefit of such suit, and of the proceedings therein, and to prose- cute the same against the said C. D. from the period when it so be- came defective as aforesaid, and that for that purpose this, his bill, ought to be taken as supplemental to the said bill of the said W. D. To the end, therefore, that the said defendant may, if he can, show (1035) § 973 EQUITY PLEADING AND PRACTICE. [Ch. 56 ■why your orator should not have the relief hereby prayed, and may, upon his corporal oath, according to the best and utmost of his knowl- edge, remembrance, information, and belief, full, true, direct, and perfect answer make to all and singular the premises, and more par- ticularly whether, etc. [if answer under oath is not desired, insert waiver as in prayer of original bill, section 69, supra]. And that it may be declared that your orator, as such assignee as aforesaid, is entitled to have the benefit of the said original suit, and of the pro- ceedings therein; and that your orator may be at liberty to prosecute the same against the said defendant from the period when the said original suit so became defective by the bankruptcy of the said W. D. as aforesaid, and that for that purpose this bill may be taken as sup- plemental to the said bill of the said W. D.; and that your orator may have the same relief against the said defendant as the said W. D. might have had if he had not become bankrupt; and that your orator may have such other and further, etc.: [Prayer for subpoena against defendant.] A. B., G. H., Complainant, Solicitor for Complainant. [Add verification.] 16 S 973. Proceedings upon original bill in the nature of a supple- mental bill. Proceedings upon a bill of this description are the same as those upon original bills in general.-' '^ 16 The above form is taken from 2 Barbour, Ch. Pr. 555. 17 2 B|irbour, Ch. Pr. 86. (1036) CHAPTER LVII. SUPPLEMENTAL BILLS IN THE NATURE OP BILLS OF REVIEW. § 974. In general. Matter discovered after a decree has been made, though not capable of being used as evidence of anything which v?as previ- ously in issue in the cause, but constituting aji entirely new- issue, may be brought before the court by a supplemental bill in the nature of a bill of review.-' The bill of review is proper after a final decree is enrolled; and the supplemental bill in the nature of one, before it is enrolled.^ To entitle a party 1 1 Barbour, Ch. Pr. 362. 2 2 Haddock, Ch. Pr. 409; Wiser v. BlacMy, 2 Johns. Ch. (N. Y.) 488; Mead v. Arms, 3 Vt. 148; Standish v. Radley, 2 Atk. 177. "A supple- mental hill in the nature of a bill of revie-w for want of proper parties ■will not he available, after a decree has been signed and enrolled." Burch V. Scott, 1 Gill & J. (Md.) 393. "If a decree has been made against a person -who had no interest at all in the matter in dispute, or -who had not such an interest as "was suflBcient to render the decree against him binding upon some person, claiming the same or similar interest, relief may be obtained against the error in the decree by a supplemental bill in the nature of a bill of revie-w, as has been already mentioned in treating of supplemental bills. * " * If a decree is made against a tenant for life only, a remainderman in tail or in fee cannot defeat the proceedings against the tenant for life, but by a bill, show- ing the error in the decree, the incompetency of the tenant for life to sustain the suit, and the accruer of his own interest; and thereupon praying that the proceedings in the original cause may be reviewed, and that, for that purpose, the other party may appear to and answer this new bill, and that the rights of the parties may be properly as- certained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without leave of the court being first obtained for that purpose." Story, Eq. PI. § 424, citing Cooper, Eq. PI. 94, and cases there cited; Mitford, Eq. PI. 92; Brown v. Vermuden, 1 Ch. Cas. 272; Osborne v. Usher, 6 Brown, Pari. Cas. 20. "In England it appears (1037) §974 EQUITY PLEADING AND PRACTICE. [Ch. 57 t» file suck a bill, it is nec^'ssary that the new matters should be discovered after the decree, or at least after the time when it could have been introduced into the cause.^ The qnestion always is not what the complainant knew, but what, with rea- sonable diligence, he might have known.* Where the party was aware of the fact in question, or, by reasonable diligence, could have acquired the information, before the decree, it is held that he should have filed a supplemental bill shortly after the discovery, or after gaining that information which could put him upon inquiry, and in such a case he could not resort to a supplemental bill in the nature of a bill of review after going to a decree.^ The rule is not that a party should be taken strictly to know everything which he could have discovered. An instance is given by Lord Eldon of an omission to look into a box for documents which no human prudence would have suggested as the place of their deposit. An omission of this character will not prevent a bill.® Such a bill may also bring before the court new matter discovered since the decree, al- though it could not have been used in evidence in the cause from not being regularly in issue.'' The new matter sought to to be settled that a bill of review, or a supplemental bill in the nature of a bill of review, may be filed upon new and material evidence, dis- covered since publication, and of which the party could not have come to the knowledge before publication by the exercise of reasonable dili- gence." Ridgeway v. Toram, 2 Md. Ch. 303; Young v. Keighly, 16 Ves. 353. See, also. Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Fin- layson v. Lipscomb, 16 Fla. 751; Pendleton v. Fay, 3 Paige (N. Y.) 204; Boynton v. Ingalls, 70 Me. 463; Perry v. Phelips, 17 Ves. 176; Partridge v. TJsborne, 5 Russ. 195; Hollingsworth v. McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545; Mead v. Arms, 3 Vt. 148. See Story, Bq. PI. § 422. 3 1 Barbour, Ch. Pr. 363; Ord v. Noel, 6 Madd. 130. *1 Barbour, Ch. Pr. 363; Bingham v. Dawson, 1 Jac. 243; Young v. Keighly, 16 Ves. 352. 5 1 Barbour, Ch. Pr. 364; Pendleton v. Pay, 3 Paige (N. Y.) 206; Ridgeway v. Toram, 2 Md. Ch. 303. 6 1 Barbour, Ch. Pr. 364; Young v. Keighly, 16 Ves. 352; Boston & R. Electric St. Ry. Co. v. Bemis Car-Box Co., 98 Fed. 121. 7 1 Barbour, Ch. Pr. 364; Partridge v. Usborne, 5 Russ. 195. (1038) .Q-^^ 57] BILLS OF REVIEW. § 976 be brought before the court must be material.* It must be such as, if unanswered in point of fact, would clearly entitle the complainant to a decree, or would raise a case of so much nicety and difficulty as to be a fit subject of judgment in a cause.^ § 975. Frame of bill. A supplemental bill in the nature of a bill of review nearly resembles, in its frame, a bill of review, except that, instead of praying that a former decree may be reviewed or reversed, it prays that the cause may be heard with respect to the new matter made the subject of a supplemental bill at the same time that it is reheard upon the original bill, and that the complain- ant may have such relief as the nature of the case made by the supplemental bill requires. It should also state the circum- stances positively which entitle the party to file it, viz., that the decree has not been enrolled, and not merely state them in the .alternative, praying one sort of relief as upon a bill of review if the decree has been enrolled, and, if not enrolled, then to have the benefit of it as upon a supplemental bill in the nature of a bill of review.^** 8 976. Performance of decree. A party will not be allowed, except under very special cir- cumstances, to file a supplemental bill in the nature of a bill ■of review, or to prosecute it after he has obtained leave to file it, unless he performs all that the decree commands him to do ; but he need only perform so much of the decree as, at the time of filing his bill, he is bound to perform. If the proceedings under the decree are not in such a state as to enable the adverse 8 1 Barbour, Ch. Pr. 364; Ord v. Noel, 6 Madd. 130; Norris v. Le Neve, 3 Atk. 26. »1 Barbour, Ch. Pr. 364; Ord v. Noel, 6 Madd. 130. See Blake v. Foster, 2 Moll. 357. Supplemental bills in the nature of bills of re- view seem to have been sometimes classed under the head of bills of review. Hill v. Phelps, 101 Fed. 650. 10 Story, Eq. PI. § 425; Mitford, Eq. PI. 91, 92; Cooper, Eq. PI. 96; Perry v. Phelips, 17 Ves. 176. (1039) §978 EQUITY PLEADING AND PRACTICE. [Ch. 57 party to bring him into default, he may file a bill of this na- ture, although the decree has not been performed.^ ^ The court, under special circumstances, has dispensed with a strict per- formance of the decree.i^ The court exercises great caution in allowing the rule to be dispensed with. The great amount of the sum decreed is not a sufficient reason.^^ i 977. Necessity of leave to file. A supplemental bill in the nature of a bill of review cannot be filed without special leave of court first obtained.^* The same leave and the same grounds of application are requisite in the case of a supplemental bill of review as in the case of a bill of review.^ ^ Such application should be made by petition, and founded upon afiidavit of the discovery of new matter, and should state that the decree has not yet been enrolled, and no- tice of its presentation should be given to the other party.^ ^ A pe- tition for leave to file a supplemental bill in the nature of a bill of review may be filed at any time before the decree is enrolled.-''' § 978. Form of supplemental bill in the nature of bill of review. [Title of court and cause, and address to the court.] Complaining, shows unto your honor A. B., of, etc. : That on the 10th day of March, 1843, G. H., of, etc. [the defendant hereinafter named], exhibited his bill of complaint in this honorable court against your orator, and thereby set forth that [insert the original bill]. And your orator, being served with a subpoena for that purpose, appeared and put in his answer to the said bill, to the effect following: [Recite the 11 1 Barbour, Ch. Pr. 362; Partridge v. TJsborne, 5 Russ. 195; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 12 1 Barbour, Ch. Pr. 363; 1 Hoffman, Ch. Pr. 571; Cock v. Hobb, Toth. 173; Balstone v. Biron, 5 Russ. 237. 13 1 Barbour, Ch. Pr. 363; Partridge v. TJsborne, 5 Russ. 250. 1*1 Barbour, Ch, Pr. 365; Pendleton v. Fay, 3 Paige (N. Y.) 204; O'Hara v. Shepherd, 3 Md. Ch. 306; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 15 Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. leMitford, Ba. PI- 91; 1 Barbour, Ch. Pr. 365; Pendleton v. Pay, 3 Paige (N. Y.) 204. 17 Ridgeway v. Toram, 2 Md. Ch. 303. (1040) QYi. 57] BILLS OP REVIEW. g 978 substance of the answer.] And the said G. H. replied to the said answer, and issue having been joined, and witnesses examined, and the proofs closed, the said cause was brought on to be heard before your honor on the 10th day of October, 1843, when a decree was pro- nounced, whereby your honor decreed that [state the effect of the decree] as by the said proceedings and decree now remaining of rec- ord in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honor, by leave of this honorable court first had and obtained for that purpose, by way of sup- plement, that, since the settling and entering of the said decree, your orator has discovered for the first time, as the fact is, that the said B. F. was in his lifetime seised in his demesne as of fee of and in the hereditaments and premises in question in the said cause, and that the said E. F., when so seised, and when of sound mind, duly made and published his last will and testament in writing, bearing date on or about the 1st day of January, A. D. 1842, which was exe- cuted by him and attested in such manner as by law is required for passing real estate by devise, and thereby gave and devised unto the said J. R., his heirs and assigns forever, to and for his and their own absolute use and benefit, the said hereditaments and premises in ques- tion in the said cause [which your orator claims to be entitled to, as purchaser thereof from the said J. R.]. And your orator further shows that the said decree has never hith- erto been enrolled, and, in consequence of the discovery of such new matter as aforesaid, your orator is entitled, as he is advised, to have the said cause heard thereon by your honor at the same time that it is reheard on the said original bill, in the same manner as if such new matter had been put in issue in the said original suit. To the end, therefore, that the said G. H., who is made a party defend- ant hereto, and his confederates, may full, true, direct, and perfect an- swer make, upon their respective corporal oaths, according to the best of their knowledge, information, and belief, to all and singular the matters and charges aforesaid [or, if an answer under oath is waived, omit the words "upon their respective corporal oaths," and insert, "but not under oath, answer under oath being hereby waived"], and that as fully and particularly in every respect as if the same were here again repeated, and they thereunto particularly interrogated [interrogate particularly as to supplemental matter] ; and that the said will may be established and declared a valid and effectual devise of the said hereditaments and prem- ises, and that the said cause may be heard on such new and supplemental matter as aforesaid at the same time that it is reheard upon the said original bill; and that your orator may have such further and other relief as, under the circumstances hereinbefore particularly mentioned, to your honor shall seem meet, and the nature of this case, as it here- by appears, may require: May it please your honor to grant unto your orator a writ of sub- (1041) Equity.— 66. § 979 EQUITY PLEADING AND PRACTICE. [Ch. 57 poena issuing out of and under the seal of tliis honorable court, to be directed to the said G. H., commanding him, by a certain day and under a certain penalty, to be and appear before your honor then and there to answer the premises, and, further, to stand to and abide such order and decree therein as shall be agreeable to equity and good con- science. And your orator will ever pray. A. B., L. M., Complainant. Solicitor for Complainant. [Add verification.] 18 § 979. Proceedings upon such bill. If the court allows a supplemental bill in the nature of a bill of review to be filed, it will be necessary to have a rehearing of the cause in order that the decree may be varied. 'For this purpose, the party should present a petition for a rehearing at the same time that he applies for leave to file the bill. And the order should provide that the party have leave to file the bill, that the cause be reheard, and that the supplemental bill come on for hearing at the same time with the rehearing.-'® 18 This form is taken from 2 Barbour, Ch. Pr. 458. See Willis, Plead- ings In Eq. 376. 19 1 Barbour, Ch. Pr. 365; Story, Eq. PI. § 422. (1042) APPENDIX. APPENDIX. A. Oedutaitces Made by the Losd Chancellor Bacon foe the Bettee and Moeb Kegtjlae Administeation of Justice in the Chanceet^ to be Daily ObseeveDj Saving the Pbeeog- ATIVE of the CoUET. (1) No decree shall be reversed, altered, or explained, be- ing once under the great seal, but upon bill of review ; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without further examination of matters in fact, or some new matter which hath risen in time after the decree, and not any new proof which might have been used when the decree was made, l^everthe- less, upon new proof that is come to light after the decree made, and could not possibly have been used at the time when the de- cree passed, a bill of review may be grounded by the special license of the court, and not otherwise. (2) In case of miscasting (being a matter demonstrative), a decree may be explained and reconciled by an order without a bill of review; not understanding, by miscasting any pre- tended misrating or misvaluing, but only error in the auditing or numbering. (3) ISTo bill of review shall be admitted, or any other new bill to change matter decreed, except the decree be first obeyed and performed, — as, if it be for land, that the possession be yielded; if it be for money, that the money be paid; if it be for evidences, that the evidences be brought in ; and so in other cases which stand upon the strength of the decree alone. 1046 EQUITY PLEADING AND PRACTICE. (4) But, if any act be decreed to be done which extiaguish- eth the party's right at the common law, as making of assur- ance or release, acknowledging satisfaction, canceling of bonds or evidences, and the like, those parts of the decree are to be spared until the bill of review be determined ; but such sparing is to be warranted by public order made in court. (5) No bill of review shall be put in except the party that prefers it enters into recognizance with sureties for satisfying of costs and damages for the delay, if it be found against him. (6) No decree shall be made upon pretense of equity against the express provision of an act of parliament. Nevertheless, if the construction of such act of parliament hath for a time gone away in general opinion and reputation, and after, by a later judgment, hath been controlled, then relief may be given upon matter of equity for cases arising before the said judg- ment, because the subject was in no default. (7) Imprisonment for breach of a decree is in nature of an execution, and therefore the custody ought to be straight, and the party not to have any liberty to go abroad but by special license of the lord chancellor ; but no close imprisonment is to be but by express order for willful and extraordinary contempts and disobedience as hath been used. (8) In case of enormous and obstinate disobedience in breach of a decree, an injunction is to be granted sub poena of a sum ; and upon affidavit or other sufficient proof of persisting in con- tempts, fines are to be pronounced by the lord chancellor in open court, and the same estreated down into the Hanaper, if cause be, by a special order. (9) In case of a decree made for the possession of land, a writ of execution goeth forth, and, if that be disobeyed, then process of contempt, according to the course of the court against the person to commission of rebellion, and then a sergeant at arms by special warrant, and, in case the sergeant at arms can- not find him, or be resisted, upon the coming in of the party and his commitment, if he persist in disobedience, an injimc- tion is to be granted for the possession, and, in case that also be disobeyed, then a commission to put him in possession. APPENDIX. 1047 (10) Where the party is committed for breach of a decree, he is not to be enlarged until the decree be fully performed in all things which are to be done presently ; but if there be other parts of the decree to be performed at days or times to come, then he may be enlarged by order of court upon recognizance, with sureties, to be put in for the performance de futuro; oth- erwise not. (11) Where causes come to a hearing in court, no decree bindeth any person who was not served with process ad audien- dum judicium, according to the course of the court, or did ap- pear gratis in person in court. (12) No decree bindeth any that cometh in tona fide by con- veyance from the defendant before the bill exhibited, and is made no party, neither by bill nor order ; but where he comes in pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the court, there regularly the decree bindeth; but if there were any intermis- sion of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice. (13) Where causes are dismissed upon full hearing, and the dismission signed by the lord chancellor, such causes shall not be retained again, nor new bill exhibited, except it be upon new matter, like to the case of the bill of review. (14) In case of other dismissions which are not, upon hear- ing of the cause, if any new bill be brought, the dismission is to be pleaded; and after reference and report of the contents of both suits, and consideration taken of the causes of the former dismission, the court shall rule the retaining or dis- missing of the new bill, according to justice and the nature of the case. (15) All suits grounded upon wills nuncupative, leases pa- rol, or upon long leases that tend to the defeating of the king's tenures, for the establishing of perpetuities, or grounded upon remainders put in to the crown to defeat purchasers, or for brokage or rewards to make marriages, or for bargains at play and wagers, or for bargains for offices contrary to the statute 1048 EQUITY PLEADING AND PRACTICE. of 5 & 6 Edw. VI., or for contracts upon usury or simony, are regularly to be dismissed upon motion if they be the sole effect of the bill, and, if there be no special circumstances, to move the court to allow them a proceeding, and all suits under the value of ten pounds are regularly to be dismissed. (16) Dismissions are properly to be prayed and had, either upon hearing or upon plea unto the bill, when the cause comes first into the court; but dismissions are not to be prayed after the parties have been at charges of examination, except it be upon special cause. (17) If the plaintiff discontinue the prosecution, after all the defendants have answered above the space of one whole term, the cause is to be dismissed of course, without any motion, but, after replication put in, no cause is to be dismissed without motion and order of the court. (18) Double vexation is not to be admitted; but if the party sue for the same cause at common law and in chancery, he is to have a day given to make his election where he will proceed, and, in default of such election, to be dismissed. (19) Where causes are removed by special certiorari upon a bill containing matter of equity, the plaintiff is, upon receipt of his writ, to put in bond to prove his suggestion within four- teen days after the receipt, which, if he does not prove, then, upon certificate from either of the examiners presented to the lord chancellor, the caiise shall be dismissed with costs, and a procedendo to be granted. (20) Xo injunction of any nature shall be granted, revived, dissolved, or stayed upon any private petition. (21) ISTo injunction to stay suits at the law shall be grant- ed upon priority of suit only, or upon surmise of the plain- tiff's bill only, but upon matter confessed in the defendant's answer or matter of record, or writing plainly appearing, or when the defendant is in contempt for not answering, or that the debt desired to be stayed appeareth to be old, and hath slept long, or the creditor or the debtor hath been dead some good time before the suit brought. (22) Where the defendant appears not, but sits an attach- APPENDIX. 10-1 9 ment ; or when he doth appear, and departs without answer, and is under attachment for not answering; or when he takes oath he cannot answer without sight of evidences in the country ; or where, after answer, he sues at common law by attorney, and absents himself beyond sea, — in these cases an injunction is to be granted for the stay of all suits at the common law until the party answer or appear in person in court, and the court give further order ; but nevertheless, upon answer put in, if there be no motion made the same term, or the next general seal after the term, to continue the injunction, in regard of the insufSciency of the answer put in, or in regard of the matter confessed in the answer, then the injunction to die and dissolve without any special order. (23) In the case aforesaid, where an injunction is to be granted for stay of suits at the common law, if the like suit be in the chancery, either by scire facias or privilege or English bill, then the suit is to be stayed by order of the court, as it is in other courts by injunction, for that the court cannot en- join itself. (24) Where an injunction hath been obtained for stay of suits, and no prosecution is had for the space of three terms, the injunction is to fall of itself, without further motion. (25) Where a bill comes in after an arrest at the common law for a debt, no injunction shall be granted without bringing the principal money into court, except there appear in the de- fendant's answer, or by sight of writings, plain matter tend- ing to discharge the debt in equity; but if an injunction be awarded and disobeyed, in that ease no money shall be brought in or deposited in regard of the contempt. (26) Injunctions for possession are not to be granted before a decree, but where the possession hath continued by the space of three years before the bill exhibited, and upon the same title, and not upon any title by lease, or otherwise determined. (27) In case where the defendant sits all the process of con- tempt and cannot be found by the sergeant at arms, or resists the sergeant, or makes rescue, a sequestration shall be granted 1050 EQUITY PLEADING AND PRACTICE. of the land in question, and, if the defendant render not him- self -within the year, then an injunction for the possession. (28) Injunctions against felling of timber, plowing up of ancient pastures, or for the maintaining of inclosures, or the like, shall be granted according to the circumstances of the case ; but not in case where the defendant, upon his answer, claimeth an estate of inheritance, except it be where he claim- eth the land in trust, or upon some other special ground. (29)- ilSTo sequestration shall be granted but of lands, leases, or goods in question, and not of any other lands or goods not contained in the suits. (30) Where a decree is made for rent to be paid out of land, or a sum of money to be levied out of the profits of land, there a sequestration of the same lands, being in the defendant's hands, may be granted. (31) Where the decrees of the provincial counsel, or of the court of requests, or the queen's court, are, by continuancy or other means, interrupted, there the court of chancery, upon a bill preferred for corroborations of the same jurisdictions, de- crees, and sentences, shall give remedy. (32) Where any cause comes to a hearing that hath been formerly decreed in any other of the king's courts of justice at Westminster, such decree shall be first read, and then to pro- ceed to the rest of the evidence on both sides. (33) Suits after judgment may be admitted according to the ancient custom of the chancery, and the late royal decision of his majesty of record after solemn and great deliberation; but in such suits it is ordered that bond be put in with good sureties to prove the suggestions of the bill. (34) Decrees upon suits brought after judgment shall con- tain no words to make void or weaken the judgment, but shall only correct the corrupt conscience of the party, and rule him to make restitution or perform other acts, according to the equity of the case (35) The registers are to be sworn, as hath been lately or- dered. (36) If any order shall be made, and the court not informed APPENDIX. 1051 of the last material order formerly made, no benefit shall be taken by such order, as granted by abuse and surreptition, and to that end the registers ought duly to mention the former or- der in the latter. (37) No order shall be explained upon any private petition, but in court as they are made; and the register is to set down the orders as they were pronounced by the court truly at his peril, without troubling the lord chancellor by any private at- tending of him to explain his meaning ; and if any explanation be desired, it is to be done by public motion, where the other party may be heard. (38) ISTo draft of any order shall be delivered by the reg- ister to either party without keeping a copy by him, to the end that, if the order be not entered, nevertheless the court may be informed what was formerly done, and not put to new trouble and hearing, and to the end, also, that knowledge of orders be not kept back too long from either party, but may presently appear at the office. (39) Where a lease^ hath been debated, upon hearing of both parties, and opinion hath been delivered by the court, and, nevertheless, the caiise referred to treaty, the registers are not to omit the opinion of the court in drawing of the order of reference, except the court doth specially declare that it be en- tered without any opinion either way ; in which case, neverthe- less, the registers are, out of their short note, to draw up some more full remembrance of that that passed in court, to inform the court if the cause come back and cannot be agreed. (40) The registers, upon sending of their draft unto the counsel of the parties, are not to respect the interlineations or alterations of the said counsel (be the said counsel never so great), further than to put them in remembrance of that which was truly delivered in court, and so to conceive the order upon their oath and duty, without any further respect. (41) The registers are to be careful in penning and drawing up of decrees, and special matters of difficulty and weight, and 1 "This word ought to be 'cause,' and it is so stated in Toth. (Pro- ceed.) 30." Beames, Order Ch. 20. 1052 EQUITY PLEADING AND PRACTICE. therefore, when they present the same to the lord chancellor, they ought to give him understanding which are those decrees of weight, that they may be read and reviewed before his lord- ship sign them. (42) The decrees granted at the rolls are to be presented to his lordship, with the orders whereupon they are drawn, within two or three days after every term. (43) Injunctions for possession, or for stay of suits after verdict, are to be presented to his lordship together with the orders whereupon they go forth, that his lordship may take consideration of the order before he sign them. (44) Where any order upon the special nature of the case shall be made against any of these general rules, there the reg- ister shall plainly and expressly set down the particulars, rea- sons, and grounds moving the court to vary from the general rule. (45) ISTo reference upon a demurrer or question touching the jurisdiction of the court shall be made to the masters of the chancery, but such demurrers shall be heard and ruled in court, or by the lord chancellor himself. (46) itfo order shall be made for the confirming or ratifying of any report without day first given, by the space of a seven- night at the least, to speak to it in court. (47) ~No reference shall be made to any masters of the court, or any other commissioners, to hear and determine, where the cause is gone so far as to examination of witnesses, except it be in special cases of parties near in blood, or of extreme pov- erty, or by consent, and, generally, reference of the state of the cause, except it be by consent of the parties, to be sparingly granted. (48) No report shall be respected in court which exceedeth the warrant of reference. (49) The masters of the court are required not to certify the state of any cause as if they would make breviates of the evi- dence on both sides, which doth little ease the court, but with some opinion, or otherwise, in case they think it too doubtful to give opinion, and therefore make such special certificate, the APPENDIX. 1053 cause is to go on to a judicial hearing without respect had to the same. (50) Matters of account, unless it be in very weighty causes, are not fit for the court, but to be prepared by reference, with this difference, nevertheless: that the cause conies first to a hearing, and, upon the entrance into a hearing, they may re- ceive some direction, and be turned over to have the accounts considered, except both parties, before a hearing, do consent to a reference of the examination of the accounts to make it more ready for a hearing. (51) The like course to be taken for the examination of court rolls, upon customs and copies, which shall not be referred to any one master, but to two masters, at the least. (52) No reference to be made of the insufiiciency of an an- swer without showing of some particular point of the defect, and not upon surmise of the insufiiciency in general. (53) Where a trust is confessed by the defendant's answer, there needeth no farther hearing of the cause, but a reference presently to be made of the account, and so to go on to a hear- ing of the accounts. (54) In all suits where it shall appear, upon the hearing of the cause, that the plaintiff had not prohahilem causam liti- gandi, he shall pay unto the defendant his utmost costs, to be assessed by the court. (55) If any bill, answer, replication, or rejoinder shall be found of an immoderate length, both the party and the counsel under whose hand it passed shall be fined. (56) If there be contained in any bill, answer, or other plead- ings or interrogatory any matter libelous or slanderous against any that is not party to the suit, or against such as are parties to the suit, upon matters impertinent, or in derogation of the settled authorities of any of his majesty's courts, such bills, an- swers, pleadings, or interrogatories shall be taken off the file and suppressed, and the parties severally punished by commit- ment or ignominy, as shall be thought fit for the abuse of the court, and the counselors at law who have set their hands shall likewise receive reproof or punishment, if cause be. 1054 EQUITY PLEADING AND PRACTICE. (57) Demurrers and pleas which tend to discharge the suit shall be heard first upon every day of orders, that the subject may know whether he shall need farther attendance or not. (58) A demurrer is properly upon matter defective 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 excom- municated, or there is another bill depending for the same cause, or the like; and such plea may be put in without oath in case where the matter of the plea appears upon record, but, if it be anything that doth not appear upon record, the plea must be upon oath. (59) ISTo plea of outlawry shall be allowed without pleading the record suh pede sigillij nor plea of excommunication with- out the seal of the ordinary. (60) Where any suit appeareth upon the bill to be of the natures which are regularly to be dismissed, according to the 15th ordinance, such matter is to be set forth by way of demur- rer. (61) Where an answer shall be certified insufiicient, the de- fendant is to pay costs ; and if a second answer be returned in- sufficient in the points before certified insufficient, then double costs; and upon the third, treble costs; and upon the fourth, quadruple costs; and then to be committed also until he hath made a perfect answer, and to be examined upon interrogatories touching the points defective in his answer ; but if any answer be certified sufficient, the plaintiff is to pay costs. (62) ISTo insufficient answer can be taken hold of after repli- cation put in, because it is admitted sufficient by the replication. (63) An answer to a matter charged, as the defendant's OAvn fact, must be direct, without saying it is to his remembrance, or as he believeth, if it be laid as done within seven years be- fore. If the defendant deny the fact, he must traverse it di- rectly, and not by way of negative pregnant; as, if a fact be laid to be done with diverse circumstances, the defendant may not traverse it literally as it is laid in the bill, but must trav- erse the point of substance. So, if he be charged with the re- APPENDIX. 1055 ceipt of £100, lie must traverse that he hath not received £100, nor any part thereof, and, if he have received part, he must set forth what part. (64) If a hearing be prayed upon bill and answer, the an- swer must be admitted to be true in all points, and a decree ■ought not to be made, but upon hearing the answer read in court. (65) Where no counsel appears for the defendant at the hear- ing, and the process appears to have been served, the answer of such defendant is to be read in court. (66) No new matter is to be contained in any replication, except it be to avoid matter set forth in the defendant's answer. (6Y) All copies in chancery shall contain iifteen lines in ev- ery sheet thereof, written orderly and unwastefuUy, unto which shall be subscribed the name of the principal clerk of the ofhce where it is written, or his deputy, for whom he will answer, for which subscription only no fee at all shall be taken. (68) All commissions for examinations of witnesses shall be super interr. inclusis only, and no return of depositions into the court shall be received but such only as shall be either com- prised in one roll, subscribed with the name of the commis- sioners, or else in divers rolls, whereof each one shall be so sub- scribed. (69) If both parties join in commissions, and, upon warning given, the defendant bring his commissioners, but produceth no witnesses, nor ministereth interrogatories, but after seek a new commission, the same shall not be granted; but nevertheless, upon some extraordinary excuse of the defendant's default, he may have liberty granted by special order to examine his wit- nesses in court upon the former interrogatories,, gi'^ing the plaintiff, or his attorney, notice that he may examine also if he will. (70) The defendant is not to be examined upon interroga- tories, except it be in very special cases, by express order of the court, to sift out some fraud, or practice pregnantly appear- ing to the court, or otherwise, upon offer of the plaintiff, to be concluded by the answer of the defendant, without any liberty to disprove such answer, or to impeach him after of perjury. 1056 EQUITY PLEADING AND PRACTICE. (71) Decrees in other courts may be read upon hearing, ■without the warrant of any special order, but no depositions taken in any other court are to be read but by special order; and, regularly, the court granteth no order for reading of depo- sition, except it be between the same parties, and upon the same title and cause of suit. (72) ISTo examination is to be had of the credit of any wit- ness but by special order, which is sparingly to be granted. (73) Witnesses shall not be examined in perpetuam rei me- moriam, except it be upon the ground of a bill first put in, and answer thereunto made, and the defendant or his attorney made acquainted with the names of the witnesses that the plain- tiff would have examined, and so publication to be of such wit- nesses, with this restraint nevertheless : that no benefit shall be taken of the depositions of such witnesses in case they may be brought viva voce upon the trial, but only to be used in case of death before the trial, or age, or impotency, or absence out of the realm at the trial. (74) ISTo witnesses shall be examined after publication, ex- cept it be by consent or by special order ad informandum con- scientiam judicis, and then to be brought close sealed up to the court, to peruse or publish, as the court shall think good. (75) No affidavit shall be taken or admitted by any master of the chancery tending to the proof or disproof of the title or matter in question, or touching the merits of the cause ; neither shall any such matter be colorably inserted in any affidavit for serving of process. (76) ISTo affidavit shall be taken against affidavit, as far as the masters of the chancery can have knowledge, and, if any such be taken, the latter affidavit shall not be used nor read in court. (77) In case of contempts granted upon force, or ill words upon serving of process, or upon words of scandal of the court, proved by affidavit, the party is forthwith to stand committed. But for other contempts against the orders or decrees of the court, an attachment goes forth first upon affidavit made, and then the party is to be examined upon interrogatories, and his APPENDIX. 1057 examination referred. And if, upon his examination, he con- fess matter of contempt, he is to be committed; if not, the adverse party may examine witnesses to prove the contempt. And therefore, if the contempt appear, the party is to be com- mitted; but, if not, or if the party that pursues the contempt do fail in putting in interrogatories, or other prosecution, or fail in the proof of the contempt, then the party charged with the contempt is to be discharged with good costs. (78) They that are in contempt, especially so far as proc- lamation of rebellion, are not to be here, neither in that suit nor any other, except the court of special grace suspend the contempt. (79) Imprisonment upon contempt for matters passed may be discharged of grace after sufficient punishment, or otherwise dispensed with; but if the imprisonment be for not perform- ance of any order of the court in force, they ought not to be discharged, except they first obey, but the contempt may be sus- pended for a time. (80) Injunctions, sequestrations, dismissions, retainers up- on dismissions, or final orders are not to be granted upon peti- tions. (81) IsTo former order made in court is to be altered, crossed, or explained upon any petition ; but such orders may be stayed upon petition for a small stay, until the matter may be moved in court. (82) 'No commission for examination of witnesses shall be discharged, nor no examinations or depositions shall be sup- pressed upon petition, except it be upon point of course of the court first referred to the clerks, and certificate thereupon. (83) No demurrer shall be overruled upon petition. (84) JSTo scire facias shall be awarded upon recognizances not enrolled, nor upon recognizances enrolled, unless it be upon examination of the record with the writ; nor no recognizance shall be enrolled after the year, except it be upon special order from the lord chancellor. (85) No writ of ne exeat regnum, prohibition, consultation, statute of Northampton, certiorari special, or 'procedendo spe- Equity.— 67. 1058 EQUITY PLEADING AND PRACTICE. cial, or certiorcuri or 'procedendo general, more than one in the same cause; habeas corpus, or corpus cum causa, vi laica re- movend, — restitution thereupon, de coronatore et viridario eli- gendo in case of a moving de homine repleg. assiz., or special patent, inde hallivo amovend, certiorari super presentationihus fact, coram commissariis seward, or ad quod dampnum, shall pass without warrant under the lord chancellor's hand, and signed by him, save such writs as (of) ad quod dampnum as shall be signed by master attorney. (86) Writs of privilege are to be reduced to a better rule, both for the number of persons that shall be privileged, and for the case of the privilege; and as for the number, it shall be set down by schedule, for the case is to be understood that, besides parties privileged, as attendants upon the court, suitors and witnesses are only to have privilege eundo, redeundo, et mo- rando, for their necessary attendance, and not otherwise, and that such vsrrit of privilege dischargeth only an arrest upon the first process ; but yet where, at such times of necessary at- tendance, the party is taken in execution, it is a contempt to the court, and accordingly to be punished. (87) ]^o supplicavit for the good behavior shall be granted but upon articles grounded upon the oath of two, at the least, or certificate of any one justice of assize, or two justices of the peace, with afiidavit that it is their hands, or by order of the star chamber or chancery or other of the king's courts. (88) Xo recognizance of the good behavior and the peace taken in the country, and certified into the petty bag, shall be filed in the year, without warrant from the lord chancellor. (89) Writs of ne exeat regnum are properly to be granted, according to the suggestion of the writ, in respect of attempts prejudicial to the king and state, in which case the lord chan- cellor will grant them, upon prayer of any of the principal secretaries, without cause showing, or upon such information as his lordship shall think of weight ; but otherwise, also, they may be granted, according to the practice of long time used, in case of interlopers in trade, great bankrupts, in whose estate many subjects are interested, or other cases that concern mul- APPENDIX. 1059 titiides of the king's subjects, also in case of duels and divers others. (90) All writs, certificates, and whatsoever other process rei. coram, rege in Cane, shall be brought into the chapel of the rolls within convenient time after the return thereof, and shall be there filed, upon their proper files and bundles, as they ought to be, except the depositions of witnesses, which may remain with any of the six clerks by the space of one year next after the cause shall be determined by decree, or other- wise be dismissed. (91) All injunctions shall be enrolled, or the transcript filed, to the end that, if occasion be, the court may take order to award writs of scire facias thereupon, as in ancient time hath been used. (92) All days given by the court to sheriffs to return their writs, or bring their prisoners upon writs of privilege, or other- wise, between party and party, shall be filed either in the reg- ister's ofBce or in the petty bag, respectively; and all recog- nizances taken to the king's use, or unto the court, shall be duly enrolled in convenient time with the clerks of the enroll- ment, and calendars made of them, and the calendars every Michaelmas term to be presented to the lord chancellor. (93) In case of suits upon the commissions for charitable uses, to avoid charge, there shall need no bill, but only excep- tions to the decree and answer forthwith to be made thereunto ; and thereupon, and upon sight of the inquisition, and the de- cree brought unto the lord chancellor by the clerk of the petty bag, his lordship, upon perusal thereof, will give order under his hand for an absolute decree to be drawn up. (94) Upon suit for the commission of sewers, the names of those that are desired to be commissioners are to be preferred to the lord chancellor in writing; then his lordship will send the names of some privy coiinselor, lieutenant of the shire, jus- tices of assize, being resident in the parts for which the commis- sion is prayed, to consider of them, that they be not put in for private respects, and, upon the return of such opinion, his lord- ship will farther order for the commission to pass. 1060 EQUITY PLEADING AND PRACTICE. (95) JSTo new commission of sewards shall be granted while the first is in force, except it be upon discovery of abuse or fault in the first commissioners, or otherwise upon some great and weighty ground. (96) No petition of bankrupts shall be granted but upon pe- tition first exhibited to the lord chancellor, together with names presented, of which his lordship will take consideration, and always single some learned in the law with the rest, yet so as care be taken that the same parties be not too often used in commissions; and likewise care is to be taken that bond with good surety be entered into, in two hundred pounds at least, to prove him a bankrupt. (97) ISFo commission of delegates in any case of weight shall be awarded but upon petition preferred to the lord chancellor, who will name the commissioners himself, to the end that they may be persons of convenient quality, having regard to the weight of the cause, and the dignity of the court from whom the appeal is. (98) Any man shall be admitted to defend in forma pavr peris upon oath; but for plaintiffs, they are ordinarily to be referred to the court of requests, or to the provincial counsels, if the case arise in the jurisdictions, or to some gentlemen in the country, except it be in some special cases of commissera- tion or potency of the adverse party. (99) Licenses to collect for losses by fire or water are not to be granted but upon good certificate, and not for decays of suretyship, or debt, or any other casualties whatsoever ; and they are rarely to be renewed ; and they are to be directed unto the county where the loss did arise, if it were by fire, and the coun- ties that abut upon it, as the case shall require, and, if it were by sea, then unto the county where the port is from whence the ship went, and to some counties adjoining. (100) ISTo exemplification shall be made of letters patent (inter alia) with omission of the general words ; nor of records made void or canceled; nor of the decrees of this court not enrolled; nor of depositions by parcel; nor of depositions in court, to which the hand of the examiner is not subscribed ; nor APPENDIX. 1061 of records of the court, not being enrolled or filed; nor of rec- ords of any other courts, before the same be duly certified to this court, and orderly filed here; nor of any records upon the sight and examination of any copy in paper but upon sight and examination of the original. (101) And, because time and experience may discover some of these rules to be inconvenient, and some other to be fit to be added, therefore his lordship intendeth, in any stich case, from time to time to publish any such revocations or additions.^ 2 Tlie above ordinances are taken from Beames, Order Ch. 1-46. The ordinances as set fortli in other works differ slightly in phraseology. No attempt has been herein made to change the language of the ordi- nances as contained in Mr. Beames' work. B. Rules of Peactice foe the Cotjets of Equity of the United States. Preliminary Regulations. (1) The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing bills, answers, and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interloc- utory motions, orders, rules, and other proceedings prepara- tory to the hearing of all causes upon their merits. (2) The clerk's office shall be open, and the clerk shall be in attendance therein, on the first Monday of every month, for the purpose of receiving, entering, entertaining, and disposing of all motions, rules, orders, and other proceedings which are grantable of course, and applied for or had by the parties, or their solicitors, in all causes pending in equity, in pursuance of the rules hereby prescribed. (3) Any judge of the circuit court, as well in vacation as in term, may, at chambers, or on the rule days at the clerk's office, make and direct all such interlocutory orders, rules, and other proceedings, preparatory to the hearing of all causes upon their merits, in the same manner and with the same effect as the cir- cuit court could make and direct the same in term, reasonable notice of the application therefor being first given to the ad- verse party, or his solicitor, to appear and show cause to the contrary at the next rule day thereafter, unless some other time is assigned by the judge for the hearing. (4) All motions, rules, orders, and other proceedings made and directed at chambers, or on rule days at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they APPENDIX. 1063 are made and directed ; which book shall be open at all office hours to the free inspection of the parties in any suit in equity, and their solicitors. And, except in cases where personal or other notice is specially required or directed, such entry in the order book shall be deemed sufficient notice to the parties and their solicitors, without further service thereof, of all orders, rules, acts, notices, and other proceedings entered in such or- der book touching any and all the matters in the suits to and in which they are parties and solicitors. And notice to the solicitors shall be deemed notice to the parties for whom they appear, and whom they represent, in all cases where personal notice on the parties is not otherwise specially required. Where the solicitors for all the parties in a suit reside in or near the same town or city, the judges of the circuit court may, by rule, abridge the time for notice of rules, orders, or other proceed- ings not requiring personal service on the parties, in their dis- cretion. (5) All motions and applications in the clerk's office for the issuing of mesne process and final process to enforce and ex- ecute decrees ; for filing bills, answers, pleas, demurrers, and other pleadings ; for making amendments to bills and answers ; for taking bills pro confessoj for filing exceptions ; and for other proceedings in the clerk's office which do not, by the rules here- inafter prescribed, require any allowance or order of the court, or of any judge thereof, — shall be deemed motions and appli- cations, grantable of course by the clerk of the court. But the same may be suspended or altered or rescinded by any judge of the court, upon special cause shown. (6) All motions for rules or orders and other proceedings, which are not gTantable of course, or without notice, shall, un- less a different time be assigned by a judge of the court, be made on a rule day, and entered in the order book, and shall be heard at the rule day next after that on which the motion is made. And if the adverse party or his solicitor shall not then appear, or shall not show good cause against the same, the mo- tion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion. 1064 EQUITY PLEADING AND PRACTICE. (Y) The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and unless otherwise provided in these rules, or specially or- dered by the circuit court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or de- cree of the court. (8) Final process to execute any decree may, if the decree be solely for the payment of money, be by writ of execution, in the form used in the circuit court in suits at common law in actions of assumpsit. If the decree be for the performance of any specific act, — as, for example, for the execution of a con- veyance 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 affi- davit 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 dis- charged, unless upon a full compliance with the decree and the payment of all costs, or upon a special order of the court or of a judge thereof, upon motion and affidavit, enlarging the time for the 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. (9) When any decree or order is for the delivery of posses- sion upon proof made by affidavit of a demand and refusal to obey the decree or order, the party prosecuting the same shall be entitled to a writ of assistance from the clerk of the court. (10) Every person, not being a party in any cause, who has obtained an order, or in whose favor any order shall have been made, shall be enabled to enforce obedience to such order by the APPENDIX. 1065 same process as if he were a party to the cause ; and every per- son, not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were & party in the cause. Service of Process. (11) No process of subpoena shall issue from the clerk's of- j&ce in any suit in equity until the bill is filed in the office. (12) Whenever a bill is filed, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the Christian names, as well as the surnames, of the parties, and shall be retiirnable into the clerk's office the next rule day, or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum that the defendant is to enter his ap- pearance in the suit in the clerk's office on or before the day at which the writ is returnable ; otherwise, the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out sepa- rately for each defendant, except in the case of husband and wife defendants, or a joint subpoena against all the defendants. [Amended December 17, 1900. 180 U. S. 641.J (13) The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult per- son who is a member or resident in the family. (14) Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, toties quoties, against such defendant, if he shall re- quire it, until due service is made. (15) The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the pro- cess shall make affidavit thereof. 1066 EQUITY PLEADING AND PRACTICE. (16) Upon the rettirn of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry. Appearance. (17) The appearance day of the defendant shall be the rule day to which the subpoena is made returnable, provided he has been served with the process twenty days before that day ; other- wise, his appearance day shall be the next rule day succeeding the rule day when the process is returnable. The appearance of the defendant, either personally or by his solicitor, shall be entered in the order book on the day thereof by the clerk. Bills Taken Pro Confesso. (18) It shall be the duty of the defendant, unless the time shall be otherwise enlarged, for cause shown, by a judge of the court, upon motion for that purpose, to file his plea, demurrer, or answer to the bill in the clerk's office on the rule day next succeeding that of entering his appearance. In default there- of, the plaintiff may, at his election, enter an order as of course in the order book that the bill be taken pro confesso; and there- upon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or an- swer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer; and the defendant shall not, when arrested iipon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertak- ing to speed the cause. (19) When the bill is taken pro confesso, the court may pro- ceed to a decree at any time after the expiration of thirty days APPENDIX. 1067 from and after the entry of the order to take the bill 'pro con- fesso; and such decree rendered shall be deemed absolute, un- less the court shall at the same term set aside the same, or en- large the time for filing the answer, upon cause shown upon motion and affidavit of the defendant. And no such motion shall be granted, unless upon the payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall un- dertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause. Frame of Bills. (20) Every bill, in the introductory part thereof, shall con- tain the names, places of abode, and citizenship of all the par- ties, plaintiffs and defendants, by and against whom the bill is brought. The form, in substance, shall be as follows : "To the Judges of the Circuit Court of the United States for the District of : A. B., of — — — , and a citizen of the state of , brings this his bill against C. D., of -, and a citizen of the state of — , and E. F., of , and a citizen of the state of . And thereupon your orator complains and says that," etc. (21) The plaintiff, in his bill, shall be at liberty to omit, at his option, the part which is usiially called the "common con- federacy" clause of the bill, averring a confederacy between the defendants to injure or defraud the plaintiif ; also, what is com- monly called the "charging part" of the bill, setting forth the matters or excuses which the defendant is supposed to intend to set up by way of defense to the bill ; also, what is commonly called the "jurisdiction" clause of the bill, — that the acts com- plained of are contrary to equity, and that the defendant is without any remedy at law ; and the bill shall not be demurrable therefor. And the plaintiff may, in the narrative or stating part of his bill, state and avoid by counter averments, at his option, any matter or thing which he supposes will be insisted upon by the defendant by way of defense or excuse to the case 1068 EQUITY PLEADING AND PRACTICE. made by the plaintiff for relief. The' prayer of the bill shall ask the special relief to which the plaintiff supposes himself en- titled, and also shall contain a prayer for general relief; and if an injunction, or a writ of ne exeat regno, or any other special order pending the suit is required, it shall also be specially asked for. (22) If any person, other than those named as defendants in the bill, shall appear to be necessary or proper parties there- to, the bill shall aver the reason why they are not made parties, by showing them to be without the jurisdiction of the court, or that they cannot be joined without ousting the jurisdiction of the court as to the other parties. And as to persons who are without the jurisdiction, and may properly be made parties, the bill may pray that process may issue to make them parties to the bill if they should come within the jurisdiction. (23) The prayer for process of subpoena in the bill shall con- tain the names of all the defendants named in the introductory part of the bill, and if any of them are known to be infants under age, or otherwise under guardianship, shall state the fact, so that the court may take order thereon as justice may require, upon the return of the process. If an injunction, or a writ of ne exeat regno, or any other special order pending the suit is asked for in the prayer for relief, that shall be sufficient with- out repeating the same in the prayer for process. (24) Every bill shall contain the signature of counsel an- nexed to it, which shall be considered as an aiBrmation on his part that upon the instructions given to him, and the case laid before him, there is good ground for the suit in the manner in which it is framed. (25) In order to prevent unnecessary costs and expenses, and to promote brevity, succinctness, and directness in the allega- tions of bills and answers, the regular taxable costs for every bill and answer shall in no case exceed the sum which is allowed in the state court of chancery in the district, if any there be; but if there be none, then it shall not exceed the sum of three dollars for every bill or answer. APPENDIX. 1069 Scandal and Impertinence in Bills. (26) Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in haec verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may, on excep- tions, be referred to a master by any judge of the court for impertinence or scandal; and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the ref- erence. (27) ISTo order shall be made by any judge for referring any bill, answer, or pleading, or other matter or proceeding depend- ing before the court for scandal or impertinence, unless excep- tions are taken in writing, and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent, nor unless the exceptions shall be filed on or be- fore the next rule day after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary de- lay, procure the master to examine and report for the same on or before the next succeeding rule day, or the master shall cer- tify that further time is necessary for him to complete the ex- amination. Amendment of Bills. (28) The plaintiff shall be at liberty, as a matter of course, and without payment of costs, to amend his bill in any matter whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point (as he may do'of course) 1070 EQUITY PLEADING AND PRACTICE. after a copy has been so taken, before any answer or plea or (iemurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him a fair copy thereof free of expense, with suitable references to the places where the same are to be inserted. And if the amend- ments are numerous, he shall furnish in like manner to the de- fendant a copy of the whole bill as amended; and if there be more than one defendant, a copy shall be furnished to each de- fendant affected thereby. (29) After an answer or plea or demurrer is put in, and be- fore replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule day, upon payment of costs, or without payment of costs, as the court or a judge thereof may in his discretion direct. But after replica- tion filed, the plaintiff shall not be permitted to withdraw it, and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reason- able diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. (30) If the plaintiff so obtaining any order to amend his bill after answer or plea or demurrer, or after replication, shall not file his amendments or amended bill, as the case may re- quire, in the clerk's office, on or before the next succeeding rule day, he shall be considered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made. Demurrers and Pleas. (31) No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel that in his opinion it is well founded in point of law, and supported by the affidavit APPENDIX. 1071 of the defendant that it is not interposed for delay, and, if a plea, that it is true in point of fact. (32) The defendant may at any time before the bill is taken for confessed, or afterwards with the leave of the court, demur or plead to the whole bill, or to part of it, and he may demur to part, plead to part, and answer as to the residue; but in every case in which the bill specially charges fraud or combina- tion, a plea to such part must be accompanied with an answer fortifying the plea, and explicitly denying the fraud and com- bination, and the facts on which the charge is founded. (33) The plaintiff may set down the demurrer or plea to be argued, or he may take issue on the plea. If, upon an issue, the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. (34) If, upon the hearing, any demurrer or plea is overruled, the plaintiff shall be entitled to his costs in the cause up to that period, unless the court shall be satisfied that the defend- ant had good ground in point of law or fact to interpose the same, and it was not interposed vexatiously or for delay. And upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill, or so much thereof as is covered by the plea or demurrer, the next succeeding rule day, or at such other period as, consistently with justice and the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill shall be taken against him 'pro confesso, and the matter thereof pro- ceeded in and decreed accordingly. (35) If, upon the hearing, any demurrer or plea shall be al- lowed, the defendant shall be entitled to his costs ; but the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable. , (36) ISTo demurrer or plea shall be held bad and overruled, upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to. (37) ISTo demurrer or plea shall be held bad and overruled, upon argument, only because the answer of the defendant may 1072 EQUITY PLEADING AND PRACTICE. extend to some part of the same matter as may be covered by such demurrer or plea. (38) If the plaintiff shall not reply to any plea, or set down any plea or demurrer for argument, on the rule day when the same is filed, or on the next succeeding rule day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for that purpose. Answers. (39) The rule that, if the defendant submits to answer, he shall answer fully to all the matters of the bill, shall no longer apply in cases where he might, by plea, protect himself from such answer and discovery. And the defendant shall be en- titled in all cases, by answer, to insist upon all matters of de- fense (not being matters of abatement, or to the character of the parties, or matters of form) in bar of or to the merits of the bill, of which he may be entitled to avail himself by a plea in bar ; and in such answer he shall not be compellable to answer any other matters than he would be compellable to answer and discover upon filing a plea in bar, and an answer in support of such plea, touching the matters set forth in the bill to avoid or repel the bar or defense. Thus, for example, a hotia fide pur- chaser for a valuable consideration, without notice, may set up that defense by way of answer instead of plea, and shall be en- titled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in any answer in support of such plea. (40) A defendant shall not be bound to answer any state- ment or charge in the bill, unless especially and particularly interrogated thereto ; and a defendant shall not be bound to an- swer any interrogatory in the bill except those interrogatories which such defendant is required to answer; and where a de- fendant shall answer any statement or charge in the bill to which he is not interrogated, only by stating his ignorance of the matter so stated or charged, such answer shall be deemed impertinent. APPENDIX. 1073 December Term, 1852. Ordered, that tlie fortiett rule, heretofore adopted and pro- mulgated by this court as one of the rules of practice in suits in equity in the circuit courts, be, and the same is hereby, repealed and annulled; and it shall not hereafter be necessary to inter- rogate a defendant specially and particularly upon any state- ment in the bill, unless the complainant desires to do so, to obtain a discovery. (41) The interrogatories contained in the interrogating part of the bill shall be divided as conveniently as may be from each other, and numbered consecutively 1, 2, 3, etc. ; and the inter- rogatories vs^hich each defendant is required to answer shall be specified in a note at the foot of the bill, in the form or to the effect follovs^ing; that is to say: "The defendant (A. B.) is re- quired to ansv7er the interrogatories numbered, respectively, 1, 2, 3," etc. ; and the office copy of the bill taken by each defend- ant shall not contain any interrogatories except those which such defendant is so required to ansvsrer, unless such defendant shall require to be furnished vsdth a copy of the whole bill. If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though under oath, except such part thereof as shall be directly re- sponsive to such interrogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and an- swer only, but may nevertheless be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause ; but this shall not prevent a defendant from becoming a witness in his own behalf, under section three of the act of congress of July 2, 1864. [The preceding sentence was added at the De- cember Term, 1871. J (42) The note at the foot of the bill, specifying the interrog- atories ' which each defendant is required to answer, shall be considered and treated as part of the bill ; and the addition of any such note to the bill, or any alteration in or addition to such note after the bill is filed, shall be considered and treated as an amendment of the bill. Equity — 68. 1074 EQUITY PLEADING AND PRACTICE. (43) Instead of the words of tlie bill now in use, preceding tiie interrogating part thereof, and beginning with the?*words, ^'To the end, therefore," there shall hereafter be used words in the form or to the effect following: "To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remem- brance, information, and belief, full, true, direct, and perfect answer make to such of the several interrogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say : (1) Whether, .etc. (2) Whether, etc." (44) A defendant shall be at liberty, by answer, to decline .-answering any interrogatory, or part of any interrogatory, from answering which he might have protected himself by demurrer ; and 'he shall be at liberty so to decline notwithstanding he shall answer other parts of the bill, from which he might have pro- -.tected h'imseK by demurrer. (45) ITo special replication to any answer shall be filed; but if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same, with or without the payment of costs, as the court or a judge thereof may in his discretion direct. (46) In every case where an amendment shall be made after answer filed, the defendant shall put in a new or supplemental answer on or before the next succeeding rule day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court, and upon his default the like proceedings may be had as in eases of an omission to put in an answer. Parties to Bills. (47) In all cases where it shall appear to the court that per- sons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdio- APPENDIX. 1075 tion of the court as to the parties before the court, the court may, in their discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties. (48) Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive de- lays in the suit, be all brought before it, the court in its discre- tion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to rep- resent all the adverse interests of the plaintiffs and the defend- ants in the suit properly before it ; but in such cases the decree shall be without prejudice to the rights and claims of all the absent parties. (49) In all suits concerning real estate which is vested in trustees by devise, and such trustees are competent to sell and give discharges for the proceeds of the sale, and for the rents and profits of the estate, such trustees shall represent the per- sons beneficially interested in the estate, or the proceeds or the rents and profits, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such per- sonal estate ; and in such cases it shall not be necessary to make the persons beneficially interested in such real estate, or rents and profits, parties to the suit; but the court may, upon con- sideration of the matter on the hearing, if it shall so think fit, order such persons to be made parties. (50) In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party ; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him. (51) In all cases in which the plaintiff has a joint and sev- eral demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court as parties to a suit concerning such demand all the persons liable thereto, but the plaintiff may proceed against one or more of the persons severally liable. (52) Where the defendant shall, by his answer, suggest that 1076 EQUITY PLEADING AND PRACTICE. the bill is defective for want of parties, the plaintifE shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the clerk's order book, in the form or to the effect following (that is to say) : "Set down upon the defendant's ob- jection for want of parties." And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, not- withstanding an objection for want of parties taken by the an- swer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for Liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill. (53) If a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties, not having by plea or answer taken the objection, and therein specified by name or description of parties to whom the objection applies, the court, if it shall think fit, shall be at liberty to make a decree saving the rights of the absent parties. Nominal Parties to BiUs. (54) Where no account, payment, conveyance, or other di- rect relief is sought against a party to a suit, not being an in- fant, the party, upon service of the subpoena upon him, need not appear and answer the bill, unless the plaintiff specially re- quires him so to do by the prayer of his bill; but he may ap- pear and answer at his option, and, if he does not appear and answer, he shall be bound by all the proceedings in the cause. If the plaintiff shall require him- to appear and answer, he shall be entitled to the costs of all the proceedings against him, un- less the court shall otherwise direct. (55) Whenever an injunction is asked for by the bill to stay proceedings at law, if the defendant do not enter his appear- ance, and plead, demur, or answer to the same, within the time prescribed therefor by these rules, the plaintiff shall be en- titled as of course, upon motion without notice, to such injunc- tion. But special injunctions shall be grantable only upon due APPENDIX. 1077 notice to the other party by the court in term, or by a judge thereof in vacation, after a hearing, which may be ex 'parte, if the adverse party does not appear at the time and place ordered. In every case vrhere an injunction, either the common injunc- tion or a special injunction, is awarded in vacation, it shall, un- less previously dissolved by the judge granting the same, con- tinue until the next term of the court, or until it is dissolved by some other order of the court. Bills of Revivor and Supplemental Bills. (56) Whenever a suit in equity shall become abated by the death of either party, or by any other event, the same may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk's office at any time; and upon suggestion of the facts, the proper process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause shall be shown at the next rule day which shall occur after fourteen days from the time of the service of the same process, the suit shall stand revived, as of course. (57) Whenever any suit in equity shall become defective from any event happening after the filing of the bill, — as, for example, by change of interest in the parties, — or, for any other reason, a supplemental bill, or a biU in the nature of a supple- mental bill, may be necessary to be filed in the cause, leave to file the same may be granted by any judge of the court on any rule day, upon proper cause shown and due notice to the other party. And if leave is granted to file such supplemental bill, the defendant shall demur, plead, or answer thereto on the next succeeding rule day after the supplemental bill is filed in the clerk's office, unless some other time shall be assigned by the judge of the court. (58) It shall not be necessary in any bill of revivor or sup- 1078 EQUITY PLEADING AND PRACTICE. plemental bill to set forth any of the statements in the original suit, unless the special circumstances of the case may require it. Answers. (69) Every defendant may swear to his answer before any justice or judge of any court of the United States, or before any commissioner appointed by any circuit court to take testimony or depositions, or before any master in chancery appointed by any circuit court, or before any judge of any court of a state or territory, or before any notary public. [As amended Oc- tober term, 1888. See 129 TJ. S. 701.] Amendment of Answers. (60) After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or cor- recting a date, or reference to a document or other small mat- ter, and be resworn at any time before a replication is put in or the cause is set down for a hearing upon bill and answer. But after replication or such setting down for hearing, it shall not be amended in any material matters, as by adding new facts or defenses, or qualifying or altering the original state- ments, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by afiidavit. And in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom. Exceptions to Answers. (61) After an answer is filed on any rule day, the plaintiff shall be allowed until the next succeeding rule day to file in the clerk's office exceptions thereto for insufficiency, and no longer, unless a longer time shall be allowed for the purpose, upon cause shown to the court or a judge thereof ; and if no excep- tions shall be filed thereto within that period, the answer shall be deemed and taken to be sufficient. APPENDIX. 1079 (62) Wlien tlie same solicitor is employed for two or more defendants, and separate answers shall be filed or other pro- ceedings had by two or more of the defendants separately, costs shall not be allowed for such separate answers or other pro- ceedings, unless a master, upon reference to him, shall certify that such separate answers and other proceedings were neces- sary or proper, and ought not to have been joined together. (63) Where exceptions shall be filed to the answer for in- sufficiency within the period prescribed by these rules, if the defendant shall not submit to the same and file an amended answer on the next succeeding rule day, the plaintiff shall forth- with set them down for a hearing on the next succeeding rule day thereafter, before a judge of the court, and shall enter, as of course, in the order book, an order for that purpose. And if he shall not so set down the same for a hearing, the exceptions shall be deemed abandoned, and the answer shall be deemed sufficient, provided, however, that the court, or any judge thereof, may, for good cause shown, enlarge the time for filing exceptions or for answering the same, in his discre- tion, upon such terms as he may deem reasonable. (64) If, at the hearing, the exceptions shall be allowed, the defendant shall be bound to put in a full and complete answer thereto on the next succeeding rule day; otherwise, the plain- tiff shall, as of course, be entitled to take the bill, so far as the matter of such exceptions is concerned, as confessed, or, at his election, he may have a writ of attachment to compel the de- fendant to make a better answer to the matter of the excep- tions; and the defendant, when he is in custody upon such writ, shall not be discharged therefrom but by an order of the court, or of a judge thereof, upon his putting in such answer, and complying with such other terms as the court or judge may direct. (65) If, upon argument, the plaintiff's exceptions to the an- swer shall be overruled, or the answer shall be adjudged insuffi- cient, the prevailing party shall be entitled to all the costs oc- casioned thereby, unless otherwise directed by the court, or the judge thereof, at the hearing upon the exceptions. 1080 EQUITY PLEADING AND PRACTICE. Replication and Issue. (66) Whenever tke answer of the defendant shall not be excepted to, or shall be adjudged or deemed sufficient, the plain- tiff shall file the general replication thereto on or before the next succeeding rule day thereafter ; and in all cases where the general replication is filed, the cause shall be deemed to all intents and purposes at issue, without any rejoinder or other pleading on either side. If the plaintiff shall omit or refuse to file such replication within the prescribed period, the de- fendant shall be entitled to an order, as of course, for a dis- missal of the suit; and the suit shall thereupon stand dis- missed, unless the court, or a judge thereof, shall, upon motion for cause shown, allow a replication to be filed nunc pro tunc, the plaintiff submitting to speed the cause, and to such other terms as may be directed. Testimony — How Taken. (67) After the cause is at issue, commissions to take testi- mony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interroga- tories filed by the party taking out the same in the clerk's office, ten days' notice thereof being given to the adverse party to file cross interrogatories before the issuing of the commission ; and if no cross interrogatories are filed at the expiration of the time, the commission may issue ex parte. In all cases the co m m i a- sioner or commissioners may be named by the court or by a judge thereof ; and the presiding judge of the court exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name commissioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally; and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court. The ex- aminer, if he so request, shall be furnished with a copy of the pleadings. Such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and APPENDIX. 1081 the witnesses shall be subject to cross-examination and re-ex- amination, all of which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be reduced to writing by the examiner in the form of question put and answer given : provided that, by consent of parties, the examiner may take down the testimony of any witness in the form of narrative. At the request of either party, vdth reasonable notice, the depo- sition of any witness shall, under the direction of the examiner, be taken down either by a skillful stenographer or by a skillful typewriter, as the examiner may elect, and, when taken steno- graphically, shall be put into typewriting or other writing : pro- vided, that such stenographer or typewriter has been appointed by the court, or is approved by both parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner, and of such of the parties or counsel as may attend : provided that, if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stating upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, sfkte any special matters to the court as he shall think fit ; and any question or questions which may be objected to shall be noted by the ex- aminer upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the ques- tions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written inter- rogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors or parties of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the exam- ination of witnesses before the examiner is concluded, the orig- 1082 EQUITY PLEADING AND PRACTICE. inal depositions, autlieiiticated by the signature oi. the exam- iner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in sec- tion 865 of the Revised Statutes. Testimony may be taken on commission in the usual way by written interrogatories and cross interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time there- after within which the defendant shall take his evidence in de- fense, and a time thereafter within which the complainant shall take his evidence in reply; and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion for cause shown. The expense of the taking down of depositions by a stenographer, and of putting them into typewriting or other writing, shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. Upon due notice given, as prescribed by previous order, the court may, at its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court, on final hearing. [As amended in May, 1892, and May, 1893. See 144 U. S. 689, and 149 TJ. S. Y93.] (68) Testimony may also be taken in the cause, after it is at issue, by deposition, according to the act of congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a commission or by a new deposition taken under the acts of congress, if a court or a judge thereof shall, under all the circumstances, deem it reasonable. (69) Three months, and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause showa by either APPENDIX. 1083 paxty, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and deposi- tions containing the testimony into the clerk's office, publica- tion thereof may be ordered in the clerk's office, by any judge of the court, upon due notice to the parties, or it may be en- larged, as he may deem reasonable under all the circumstances. But, by consent of the parties, publication of the testimony may at any time pass in the clerk's office, such consent being in writ- ing, and a copy thereof entered in the order books, or indorsed upon the deposition or testimony. Testimony De Bene Esse. (70) After any bill filed, and before the defendant hath an- swered the same, upon affidavit made that any of the plaintiff's witnesses are aged and infirm, or going out of the country, or that any of them is a single witness to a material fact, the clerk of the court shall, as of course, upon the application of the plaintiff, issue a commission to such commissioner or commis- sioners, as the judge of the court may direct, to take the exam- ination of such witness or witnesses de bene esse, upon giving due notice to the adverse party of the time and place of taking his testimony. Form of the Last Interrogatory. (71) The last interrogatory in the written interrogatories to take testimony, now commonly in use, shall in the future be altered and stated, in substance, thus: "Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this, your examination, or the matters in question in this cause ? If yea, set forth the same fully and at large in your answer." Cross Bill. (72) Where a defendant in equity files a cross bill for dis- covery only against the plaintiff in the original bill, the defend- ant to the original bill shall first answer thereto before the orig- 1084 EQUITY PLEADING AND PRACTICE. inal plaintiff shall be compellable to answer the cross biU. The answer of the original plaintiff to such cross bill may be read and used by the party filing the cross bill at the hearing, in the same manner and under the sam.e restrictions as the answer praying relief may now be read and used. Reference to, and Proceedings hefore. Masters. (73) Every decree for an account of the personal estate of a testator or intestate shall contain a direction, to the master, to whom it is referred to take the same, to inquire and state to the court what parts, if any, of such personal estate are out- standing or undisposed of, unless the court shall otherwise di- rect. (74) Whenever any reference of any matter is made to a master to examine and report thereon, the party at whose in- stance or for whose benefit the reference is made shall cause the same to be presented to the master for a hearing on or before the next rule day succeeding the time when the reference was made. If he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the mas- ter, at the costs of the party procuring the reference. (75) Upon every such reference it shall be the duty of the master, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceedings in the same, and to give due notice thereof to each of the parties or their solicitors ; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to pro- ceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable diligence in every such reference, and with the least practicable dielay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings, and to make his report, and to certify to the court or judge the reasons for any delay. (76) In the reports made by the master to the court, no APPENDIX. 1085 part of any state of facts, charge, affidavit, deposition, exam- ination, or answer broiight in or used before tbem shall be stated or recited ; but such state of facts, charge, affidavit, depo- sition, examination, or answer shall be identified, specified, and referred to so as to inform the court what state of facts, charge, affidavit, deposition, examination, or answer was so brought in or used. (77) The master shall regulate all the proceedings in every hearing before him, upon every such reference, and he shall have full authority to examine the parties in the cause, upon oath, touching all matters contained in the reference; and also to require the production of all books, papers, writings, vouch- ers, and other documents applicable thereto; and also to ex- amine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition, according to the acts of congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him ; and generally to do all other acts, and direct all other inquiries and proceedings, in the matters before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties. (78) Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the commissioner appointed to take testimony, or before a master or examiner appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank, and filled up by the party praying the same, or by the commissioner, master, or examiner, requiring the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to appear or to give evidence, it shall be deemed a contempt of the court, which being certified to the clerk's office by the commissioner, master, or examiner, an at- tachment may issue thereupon by order of the court, or of any judge thereof, in the same manner as if the contempt were for 1086 EQUITY PLEADING AND PRACTICE, not attending or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of witnesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable. (79) All parties accounting before a master shall bring in their respective accounts in the form of debtor and creditor; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the ao counting party, viva voce, or upon interrogatories in the mas- ter's office, or by deposition, as the master shall direct. (80) All affidavits, depositions, and documents which have been previously made, read, or used in the court, upon any pro- ceeding in any cause or matter, may be used before the master. (81) The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon writ- ten interrogatories or viva voce, or in both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court, if necessary. (82) The circuit courts may appoint standing masters in chancery in their respective districts (a majority of all the judges thereof, including the justice of the supreme court, the circuit judges, and the district judge for the district concurring in the appointment), and they may also appoint a master 'pro Jiac vice in any particular case. The compensation to be al- lowed to every master in chancery for his services in any par- ticular case shall be fixed by the circuit court in its discretion, having regard to all the circumstances thereof, and the compen- sation shall be charged upon and borne by such of the parties in the cause as the court shall direct. The master shall not retain his report as security for his compensation, but, when the com- pensation is allowed by the court, he shall be entitled to an at- tachment for the amount against the party who is ordered to pay the same, if, upon notice thereof, he does not pay it within the time prescribed by the court. [As amended April, 1894. See 152 IJ. S. Y09.J APPENDIX. 1087 Exceptions to Report of Master. (83) The master, as soon as his report is ready, shall return -the same into the clerk's office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file excep- tions thereto ; and if no exceptions are, within that period, filed by either party, the report shall stand confirmed on the next rule day after the month is expired. If exceptions are filed, they shall stand for hearing before the court, if the court is then in session, or, if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise. (84) And in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party whose exceptions are overruled shall, for every exception over- ruled, pay costs to the other party, and, for every exception al- lowed, shall be entitled to costs, the costs to be fixed in each ■case by the court by a standing rule of the circuit court. Decrees. (85) Clerical mistakes in decrees or decretal orders, or er- rors arising from any accidental slip or omission, may, at any time before an actual enrollment thereof, be corrected by order of the court or a judge thereof, upon petition, without the form or expense of a rehearing. (86) In drawing up decrees and orders, neither the bill, nor answer, nor other pleadings, nor any part thereof, nor the re- port of amy master, nor any other prior proceeding, shall be recited or stated in the decree or order; but the decree and order shall begin, in substance, as follows : "This cause came on to be heard [or to be further heard, as the case may be] at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed as follows, viz. :" [Here insert the decree or order.] Guardians and Prochein Amis. (87) Guardians ad litem to defend a suit may be appointed by the court, or by any judge thereof, for infants or other per- 1088 EQUITY PLEADING AND PRACTICE. sons who are under guardianship, or otherwise incapable to sue for themselves. All infants and other persons so incapable may sue by their guardians, if any, or by their prochem ami, subject, however, to such orders as the court may direct for the protection of infants and other persons. Behearing. (88) Every petition for a rehearing shall contain the special matter or cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party, or by some other person. No rehearing shall be granted after the term at which the final decree of the court shall have been en- tered and recorded, if an appeal lies to the supreme court ; but if no appeal lies, the petition may be admitted at any time be- fore the end of the next term of the court, in the discretion of the court. (89) The circuit courts (a majority of all the judges thereof, including the justice of the supreme court, the circuit judges, and the district judge for the district, concurring therein) may make any other and further rules and regulations for the prac- tice, proceedings, and process, mesne and final, in their respec- tive districts, not inconsistent with the rules hereby prescribed, in their discretion, and from time to time to alter and amend the same. [As amended April, 1894. See 152 U. S. 710.] (90) In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local con- veniences of the district where the court is held ; not as positive rules, but as furnishing just analogies to regulate the practice. (91) Whenever, under these rules, an oath is or may be re- quired to be taken, the party may, if conscientiously scrupulous of taking an oath, in lieu thereof make solemn affirmation to the truth of the facts stated by him. (92) In suits in equity for the foreclosure of mortgages in APPENDIX. 1089 the circuit coiirts of the United States, or in any court of the territories having jurisdiction of the same, a decree may be ren- dered for any balance that may be found due to the complainant over and above the proceeds of the sale or sales, and execution may issue for the collection of the same, as is provided in the eighth rule of this court, regulating the equity practice, where the decree is solely for the payment of money. [Adopted De- cember term, 18 63. J (93) When an appeal from a final decree in an equity suit, granting or dissolving an injunction, is allowed by a justice or judge who took part in the decision of the cause, he may, in his discretion, at the time of such allowance, make an order sus- pending or modifying the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party. [Adopted October term, 1878.] (94) Every biU brought by one or more stockholders in a corporation against a corporation and other parties, founded on a right which may properly be asserted by the corporation, must be verified by oath, and must contain an allegation that the plaintiff was a shareholder at the time of the transaction of which he complains, or that his share had devolved on him since by operation of law, and that the suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance. It must also set forth with particularity the efforts of the plaintiff to secure such action as he desires on the part of the managing directors or trustees, and, if necessary, of the shareholders, and the causes of his failure to obtain such action. [Adopted October term, 1881.] Equity— 69. TABLE OF CASES. [BEFEEENCES ABE TO PAGES.] A. B. Dick Co. V. Sherwood Letter File Co., 469. V. Wichelman, 444. Abadom v. Abadom, 687. Abbeville Electric Light & Power Co. V. Western Electrical Supply Co., 165. Abbot V. Johnson, 154. Abbott V. Semple, 207, 209, 210. V. Zeigler, 458. Abels V. Planters' & Merchants' Ins. Co., 974. Abergavenny v. Abergavenny, 186. V. Powell, 847. Abraham v. Dodgson, 881. V. Newton, 849. V. North German Fire Ins. Co., 169. Acker, In re, 548. Acme Flexible Clasp Co. v. Cary M(g. Co., 785. Adair v. New River Co., 44, 46. V. Thayer, 784. Adams, Ex parte, 547, 566. V. Bradley, 51. V. Claxton, 768. V. Corfleld, 851. V. Crittenden, 518. V. Lixon, 811, 826. V. Dowding, 891, 913, 1030, 1031. V. Fisher, 401. V. Gill, 754. V. Howard, 82, 236. V. McMillan, 655. V. Phillips, 420. V. Robinson, 171. V. Whitcomb, 500. Adams Exp. Co. v. St. John, 211. Adamski v. Wieczrek, 739, 740, 908. Adamson v. Hull, 922. Addison v. Walker, 145. Adkins v. Edwards, 487. V. Hutchings, 638. V. Paul, 663. Adney v. Flood, 520. Aetna Life Ins. Co. v. Smith, 842. African Methodist Bethel Church v. Carmack, 158. Agar V. Gurney, 366. v. Regent's Canal Co., 882. Ahl's Appeal, 734. Aholtz V. Durfee, 980, 989, 990. Aikin v. Ballard, 121. Akin V. Watson, 211. Albany City Bank v. Dorr, 277. V. Schermerhom, 553, 558, 565, 567. Albert v. Clarendon Land Investment & Agency Co., 209. v. Strange, 539. V. Winn, 329. Albrecht v. Sussmann, 16. Albright v. Oyster, 988. V. Texas, S. F. & N. R. Co., 193, 205. Alder v. Van Kirk Land & Construc- tion Co., 979. Alderman v. Potter, 372. Aldine Mfg. Co. v. Phillips, 265. Aldrich v. Wayne Circuit Judge, 761. Alexander v. Alexander, 143. V. Davis, 218, 219, 220, 221. V. Dixon, 691. v. Horner, 84. V. Searcy, 56. V. Wolley, 740. Alford V. McCormac, 464. Alger V. Anderson, 40, 82. Allan V. Allan, 839. AUard v. Jones, 208. Allen, In re, 567. V. Blunt, 647. V. Bone, 158. V. Brown, 212. V. Central R. Co., 26. V. City of New York, 385, 705. V. Cole, 658. V. Cooley, 483. V. Hawley, 515, 527. V. McNew, 883. V. Randolph, 272, 275, 276, 425. V. Saulpaw, 629. V. Taylor, 898, 906, 907. V. Watt, 294. V. Wilson, 199. V. Quinter, 112. Allgood V. Bank of Piedmont, 980, 984, 991. AUisV. Stowell, 788, 789. Allis, Edward P. Co. v. Wlthlacoo- chee Lumber Co., 263, 264. Allison V. Corson, 517. Allred v. Tate, 146. Almond v. Wilson, 152. Alsager v. Johnson, 250. V. Rowley, 250. Alston V. Alston, 953. Alterauge v. Christiansen, 152. Amberg v. Nachtway, 111, 289, 323. Ambrouse's Heirs v. Keller, 720. Ambury v. Jones, 870. American Bell Telephone Co. v. West- ern Union Telegraph Co., 676. American Bible Soc. v. Hague, 307. 434. 1092 TABLE OF CASES. [EEFERENCES ABE TO PAGES.] American Cereal Co. v. Eli Pettijohn Cereal Co., 177. American Construction Co. v. Jack sonville, T. & K. W. Ry. Co., 557. American Diamond Rock Boring Co. v. Sheldon, 789. American Dock & Improvement Co. v. Trustees for Public Schools, 626, 627, 636, 639, 702, 703, 716. American Emigrant Co. v. Fuller, 726. American Freehold Laud Mortg. Co. V. Sewell, 420. American Ins. Co. v. Oakley, 158. American Life Insurance & Trust Co. V. Bayard, 353, 381. American Live- Stock Commission Co. V. Chicago Live-Stock Exchange, 265, 545. American Loan & Trust Co. v. Central "Vermont R. Co., 25, 497. V. East & West Ry. Co., 365. American Steel & Wire Co. v. Wire Drawers' & Die Makers' Unions Nos, 1 and 3, 42, 44, 45, 46, 269. American & General Mortg. & Inv. Corp. V. Mtirquam, 950. Ames V. Holderbaum, 170. V. King, 108. V. Merriman, 458. V. Trustees of Birkenhead Docks, 496, 497. Amiss V. McGinnis, 985, 989. Ammendale Norman Inst. v. Anderson, 117, 818, 820. Ammons v. South Penn Oil Co., 595, 629. Amory v. Lawrence, 661. Amsinck v. Barklay, 511. Anderson v. Anderson, 470. V. Audenreid, 271. V. Cranmer, 635. V. Hawhe, 215. V. Henderson, 625. V. Kissam, 881, 882. V. MoCormick, 388. V. Moore, 213. V. Northrop, 650. V. Olsen, 329. V. Reed, 741. V. Sloan, 459. V. Walton, 285. V. Watt, 419. V. Wehe, 458. V. White, 471, 920, 946. V. Wilkinson, 816. Andrewes v. Walton, 799, 801. Andrews v. Brown, 282. V. Cole, 192. V. Hobson's Adm'r, 83. V. Kibbee, 950. V. Knox County Sup'rs, 566. V. Lembeck, 180. V. National Foundry & Pipe Works, 55. V. Palmer, 678, 680. V. Pratt, 76. V. Spear, 474. Angel V. Simpson, 298. V. Smith, 495. Angell V. Angell, 117, 840, 842, 843, 845, 850, 877. V. Davis, 809. V. Hadden, 829. Angerstein v. Hunt, 556. Animarium Co. v. Neiman, 146. Annapolis, City of, v. Harwood, 540. Annesley v. Simeon, 228. Annin v. Annin, 169, 712. Anonymous, 20, 45, 47, 116, 225, 249, 261, 267, 283, 289, 292, 393, 396, 423, 439, 445, 451, 479, 480, 580, 582, 598, 604, 605, 628, 648, 664, 678, 679, 689, 700, 704, 709, 724, 725, 767, 786, 829, 830, 833, 846, 850, 899, 922, 924, 1025, 1029. Ansley v. Robinson, 749. Anson V. Towgood, 764. Anspach v. Noel, 794. Anthony v. Peay, 713. Antrobus v. East India Co., 635. Appleyard v. Seton, 869. Apthorp V. Comstock, 399, 627, 629, 636, 645, 704. Archibald v. Means, 112. Armengaud v. Caudert, 309. Armistead v. Bozman's Heirs, 382. Armor v. Lyon, 267. Armstead v. Bailey, 783, 787, 789. Armstrong v. Armstrong, 627, 639, 646, 647. v. Austin, 464. V. Chemical Nat. Bank, 323, 344. V. Cooper, 786. V. Douglas Park Bldg. Ass'n, 190. V. Grant, 178. Arnaud v. Grigg, 421. Amdt V. Griggs, 171. Arnold v. Com., 566. V. Nye, 461. V. Pawtuxet Valley Water Co., 854, 865. V. Slaughter, 355, 362. V. Styles, 354, 939. Amoux V. Steinbrenner, 580. Arthur v. Arthur, 482. V. Case, 516. V. Oakes, 531. Arundel v. Arundel, 688. V. Pitt, 689, 710. Asbee v. Shipley, 902. Ashby v. Bell's Adm'r, 191. Ashe V. Berry, 776. v. Moore, 456. Ashley v. Cunningham, 920. Ashmead v. Colby, 72. Ashmore v. Evans, 32'7. Ashuelot R. Co. v. Cheshire R. Co., 889. Ashworth v. Wrigley, 510. Askew V. Poulterers' Co., 684. Aspen Mining & Smelting Co. v. Bil- lings, 782, 793. Astley V. Fountaine, 312. Aston V. Exeter, 704. Atchison v. Morris, 180. Atchison, City of, v. Bartholow, 457. Atchison, T. & S. F. R. Co. v. Jen- nison, 570. Atherton Machine Co. v. Atwood- Morrison Co., 107. Atkins v. Billings, 544. V. Drake, 646. V. Faulkner, 190. V. Palmer, 678. V. Wright, 227. Atkinson v. Atchison, T. & S. P. R. Co., 754. V. Hanway, 260. V. Manks, 725, 802, 826, 828, 830, 833. Atkyns V. Wright, 402, 854. Atlantic Bank of New York v. Frank- ford, 465. Atlantic Ins. Co. v. Lemar, 268. TABLE OF CASES. 1093 [EEPBBENCES ABE TO PAGES.] Atlantic Ins. Co. v. Lunar, 859, 860, 864. Atterberry v. Knox, 189, 318, 321. Attorney General v. Bank of Columbia, 490. V. Brewers' Co., 773, 775. V. Brooke, 109. V. Brooksbank, 227. V. Brown, 240, 241, 857, 876. 'V. Burch, 885. V. Butcher, 809. V. Central R. Co., 91. V. City of Dublin, 92. V. City of London, 774. V. Day, 1016. V. Eastlake, 92. V. Ellison, 403. V. Evart Booming Co., 92. V. Fishmongers of City of London, 902. V. Governors of Grammar School 183. V. Guardian Mutual Loan Ins. Co. 496. V. Haberdashers' Co., 778. V. Heelis, 43, 44. v. Hurst, 776, 914. V. Jackson, 84. V. MaUm, 348. V. Metropolitan Board of Works, 516. V. Moliter, 91. V. Montgomery, 643. V. Newberry Library, 746. V. New York & L. B. R. Co., 784. V. Nichol, 534. V. Oakland County Bank, 537. V. Old South Society in Boston, 773. V. Parker, 91. V. Paterson & H. R. Co., 92. V. Pearson, 208. V. Rose, 861. V. Scott, 808. V. Severne, 707. V. Stamford, 787. V. Steward, 618, 707. V. St. John's College, 143, 1008. V. Tomline, 448, 786. V. Town of Galway, 769. V. Tyler, 91. V. Whorwood, 108, 126. V. Wyburgh, 45, 84. Attwood V. Small, 66. V. , 415. AtwiU V. Ferrett, 235, 425. Atwood V. Shenandoah Valley R. Co, 888, 894. Atwool V. Merryweather, 56. Audenried v. Philadelphia & Reading R. Co., 512, 515, 516. Auditor v. Johnson's Bx'x, 666. Aultman, Miller & Co. v. Holder, 31. Austin V. Dufour, 212. V. Richardson, 36. V. Riley, 191. Austin's Adm'x v. Winston's Ex'x, 683. Avery v. Bowman, 174. V. Good, 461. V. Holland, 267. Axtell V. Pulsifer, 739, 1000. Ayer v. Messer, 662. Ayers v. City of Chicago, 949. V. Scott, 172, 631, 640. v. Wright, 147. Aylet V. Hill, 391. AylifEe v. Murray, 462. Aymer v. Gault, 824, 830. Ayres v. Carver, 722, 949, 955. B. Babb V. Mackey, 581. Babcock v. Kuntzsch, 462. V. Perry, 200. v. Twist, 416. Backhouse y. Middleton, 685, 923, 948, 1023. Bacon v. Jones, 518. v. Spottiswoode, 518. Badeau v. Rogers, 811, 815, 823, 830. Badger v. Badger, 128, 129, 306, t-75. V. McNamara, 870. Baggot V. Henry, 355, 356. Bagnal v. Bagnal, 914. Bagnall v. Bagnall, 913. Bagnold v. Green, 678. Bailey v. Calfee, 129. V. Dean, 865. V. Holden, 260. V. Myrick, 587. V. Stiles, 319, 882. V. Tillinghast, 45, 152. V. Wilson, 339, 340. V. Wright, 138. Bailey Washing Mach. Co. v. Toung, 346, 353. Baillie v. Sibbald, 288. Baily v. Taylor, 518. Bainbridge v. Baddeley, 480. V. Burton, 47. Bainbrigge v. Blair, 1024. Baines v. Barnes, 145. V. McGee, 236. Bair v. Hubartt, 387. Baird v. Jackson, 151. v. Shepherd, 755. Baisley v. Baisley, 210, 211. Baiz, In re, 178. Baker, Ex parte, 405. V. Atkins, 116, 237. V. Backus' Adm'r, 480, 483, 487. V. Baker, 450. V. Baldwin, 410. V. Booker, 237. V. Bramah, 870. V. Dumaresque, 611. V. Holmes, 164. V. Hunt, 397. V. King, 640. V. Kingsland, 362. V. Ludlam, 216. V. Mellish, 240, 267, 425, 426. V. Oil Tract Co., 958. V. Pierson, 761. V. Portland, 43. V. Safe-Deposit & Trust Co., 627. V. State, 386, 549. V. Whiting, 750, 784, 785, 791, 795, 888 1020 Baker & Co. v. Baker, 895, 1029. Balch V. Wastall, 18. Balchen v. Crawford, 827. Baldwin v. Lawrence, 44. v. Mackown, 901, 910. V. Miles, 571. v. Taylor, 639. Ball V. Ball, 47. V. Montgomery, 775. V. Rutland R. Co., 67. V. Serum, 734. 1094 TABLE OF CASBS. [EEFEEENOES ABE OB PAGES.] Ball V. Tunnard, 895. Ballance v. Loomiss, 351. V. Underbill, 957, 962, 966, 974. Ballard v. Eckman, 519, 520. V. Kennedy, 332, 334, 960, 974. V. I/ippman, B95, 600. Bailey v. Wylie, 685. Balliuger v. Elliott, 691. Balls V. Margrave, 121. Balstone v. Biron, 1040. Baltimore & O. R. Co. v. Adams ExD. Co., 126. V. City of Wheeling, 539, 540, 670. V. Fitzpatrick, 18. Bampton v. Birchall, 278, 942. Bancroft v. Sawin, 584. V. Wardour, 434. Banister v. Way, 736. Bank, Ex parte, 458. V. Farques, 711. V. Solomons, 349. Bank Com'rs v. Bank of Buffalo, 158. Bank of Augusta v. Earle, 29, 30. Bank of England v. Morice, 528. Bank of Jamaica v. Jefferson, S42, 671. Bank of Kentucky v. Milton, 713. V. 'Schuylkill Bank, 893. Bank of Maryland v. Dugan, 282. Bank of Michigan v. Niles, 264, 426. V. Williams, 202, 292. Bank of Mississippi v. Duncan, 499. Bank of Mobile v. Planters' & Mer- chants' Bank of Mobile, 343, 355. Bank of Monroe v. Widner, 735. Bank of Ogdensburgh v. Arnold, 481. Bank of Orleans v. Skinner, 118. Bank of Pittsburgh v. Murphy, 458. Bank of St. Mary's v. St. John, 193, 201. Bank of South Carolina v. Rose, 575, 577. Bank of Tennessee v. Jones, 286. Bank of United States v. Beverly, 954. V. Biddle, 321. V. Merchants' Bank of Baltimore, 295. V. White, 191, 193, 985. Bank of Utica v. Finch, 204, 205. V. Messereau, 318. Bank of Washtenaw v. Montgomery, 29. Bankers' Life Ins. Co. v. Robbins, 210. Banks v. American Tract Soc, 466, 467. V. Anderson, 984. V. Banks, 173, 174. V. Green, 84. V. Long, 980. V. Manchester, 354. V. Walker, 151. Banning v. Gotshall, 31. Bannon v. Comegys, 414. Banta's Heirs v. Calhoon, 220. Barber v. Barber, 12. V. Wood, 691. Barbey's Appeal, 236. Barbon v. Searle, 982. Barclay v. Barclay, 556, 560, 568. v. Brown, 737. V. Dawson, 658. V. Russell, 245. Barcus v. Gates, 72. Bard v. Chamberlain, 434. Barfield v. Kelly, 890. Barham v. Longman, 846. Barhydt v. Alexander, 457, 461. Baring v. Moore, 763. Baring v. Nash, 121, 127. Barker v. Harper, 764. V. Ray, 644, 645, 868. V. Wardle, 776, 778. V. Wyld, 698. Barley v. Giddings, 29. Barling v. Bank of British North America, 31. Barlow v. Bateman, 801. Barnard v. Cushmau, 104, 263, 264. V. Darling, 461. Barnes v. Hazleton, 730. V. Strong, 735. Bamesly v. Powel, 680. Barnett v. Barnett, 104. V. Montgomery & E. R. Co., 639. V. Noble, 401. V. Powers, 916, 918. V. Woods, 145. Barney v. Baltimore City, 58. V. Barney, 570. V. Peck, 144. Barnsdale v. Lowe, 847. Bamum v. Gordon, 527. V. McDaniels, 979, 995. Barnwell v. Marion, 595. Barr v. Haseldon, 661. Barraque v. Biter, 651. Barrett v. Birmingham, 193. V. Central Building & Loan Ass'n, 135. V. Doughty, 240. V. McAllister, 197. V. Oliver, 347. V. Short, 588. V. Twin City Power Co., 345, 354, 358, 361. Barriolo v. Trenton Mut. Life & Fire Ins. Co., 890, 891, 907. Barringer v. Burke, 887. Barrington v. O'Brien, 889. V. Tristram, 776. BarroU v. Porman, 818. Barrow v. Hunton, 1009. V. Rhinelander, 707. Barry, Ex parte, 550. V. Abbot, 354. V. Barry, 756. V. Cane, 458. V. Mutual Life Ins. Co. of New York, 467, 468. V. Rogers, 588. Barstow v. Smith, 242. Barth v. Makeever, 124. V. Rosenfeld, 456, 626, 631, 637, 828. Barthe v. Larquie, 535, 536. Bartles v. Gibson, 308. Bartlett v. Batts, 19. V. Gale, 663. V. GlUard, 657, 672. V. Gregory, 990. V. Marshall, 859. Barton v. Barbour, 25, 26, 995. Barton v. Beatty, 760. V. Cooke, 777. V. International Fraternal Alliance of Baltimore City, 698. V. Jayne, 248. V. Morphes, 849. Bass V. Bass, 864. Bassett v. Bratton, 503. 505. V. Johnson, 629, 631, 641, 646. V. Salisbury Mfg. Co., 285, 307, 311, 312, 434. Batohelder v. Moore, 553. V. Wendell, 62. Bate V. Bate, 226. TABLE OP CASES. 1095 [BEFEBEN'OES ABE TO FA0E8.] Bateman v. Willoe, 107. Bates V. Belavan, 721, 750. V. Great Western Telegraph Co., 1022. V. Robinson, 458. V. Skidmore, 575. Bates Refrigerating Co. v. Gillette, 568, 592, 604, 607. Bathew v. Needham, 579. Batt V. Proctor, 168, 172. Battaile v. Maryland Hospital for In- sane, 720. Batten V. Matol, 292, 295, 297, 299, 335, 329. Batterson v. Ferguson, 320. Battery Park Bank v. Western Caro- lina Bank, 495. Battle V. Davis, 27. V. Stephens, 520. V. Street, 267. Bauer Grocer Co. v. Zelle, 89, 412, 413, 428, 431. Bauerle v. Long, 186, 190, 237. Baugh V. Reed, 776. Bauknight v. Sloan, 152. Bax V. Whitbread, 742. Baxter v. Farmer, 838. V. Wilson, 780, 787. Bay V. Shrader, 953. Bayley v. Adams, 272, 274, 275, 279. V. De Walkiers, 332, 333. V. Morris, 704. Bayly v. Bayly, 501. Bazzo V. Wallace, 210. Beach v. Beach, 242. V. Haynes, 107. V. Spokane Ranch Water Co., 72. V. Woodyard, 474, 475, 476, 699. Beachinall v. Beachinall, 636. Beall V. Beall, 638. V. Blake, 62, 105, 313, 865, 880. V. Lehman Durr Co., 241. V. Smith, 23. Beals V. Illinois, M. & T. R. Co., 380. Bean v. Bean's Adm'r, 587. V. Smith, 1016. V. Valle, 298. Bearblock v. Tyler, 648. Beard v. Arbuckle, 487. V. Bowler, 276. V. Green, 621. Beardsley v. Knight, 701. Bearinger v. Pelton, 25. Beattie v. Abercrombie, 415. Beatty v. Barley, 977. V. Kurtz, 44. Beauchamp v. Gibbs, 263. V. Putnam, 958, 970. Beaufort v. Morris, 636. Beaumont v. Meredith, 47. Bechlnall v. Arnold, 846. Bechtel v. Carslake, 543. Beck V. Beck, 323, 639, 955. Beckford v. Wildman, 399. Beddinger v. Smith, 220. Bedell v. Hoffman, 815, 830, 832, 833. Bedford v. Williams, 734. Bedsole v. Monroe, 143, 144. Beebe v. Morrell, 460. V. Russell, 720. Beech v. Haynes, 661, 672, 673. Beecher v. Beecher, 127. V. Brookfleld, 651. Beekman v. Peck, 201, 202. Beggs V. Butler, 74. Beirne v. Wadsworth, 584. Belknap v. Trimble, 71, 801. Bell V. Chapman, 16. V. Donohoe, 56. V. Gunn, 823. V. Henderson, 322. V. Hyde, 217. V. Johnson, 989. V. Pomeroy, 856. V. Simonds, 316. V. Woodward, 313, 631, 639. Bell's Adm'r v. Hall, 410. Bellamy v. Bellamy, 720. V. Jones, 677, 679. Belleville, City of, v. Citizens' Horse Ry. Co., 630. Bellona Co.'s Case, 542. Bellott, Ex parte, 446. Bellows V. Stone, 279, 416, 658, 659. Bellwood V. Wetherell, 967. Belmont Nail Co. v. Columbia Iron & Steel Co., 578. Belt v. Bowie, 142, 204. Belton v. Apperson, 416. .Benedict v. Beurmann, 772. Benfleld v. Solomons, 248, 955. Benneson v. Bill, 483. Bennet v. Lee, 731, 983. V. Leigh, 347. V. Vade, 860. V. Walker, 666. Bennett v. Bennett, 230, 231, 237. V. Bradford, 734. V. Brown, 1003. V. Butterworth, 11. V. Going, 776. V. Hamill, 1006. V. Hayden, 25. V. Leigh, 654. V. McPadden, 537. V. Northern Pao. R. Co., 27. V. Winter, 753. V. Woolfolk, 866. Bennington Iron Co. v. Campbell, 359, 372, 373, 429-431. Benson v. Hadfleld, 296. V. Jones, 277, 278, 281. V. Keller, 143. V. Wolverton, 921, 922. V. Wright, 75, 654. Bent V. Maxwell Land Grant & Ry. Co., 244, 294, 728. V. Smith, 667. V. Toung, 854. Renter v. Patch, 652. Bentley v. Clark, 642. V. Cleaveland, 881. V. Cowman, 374, 376. Bently v. Dillard, 389. Benton v. Allen, 67. BerdanattI v. Sexton, 70, 991, 1005, 1008. Bergen v. .Tones, 435, 444. Berger v. Harrison, 696. Bergman v. Hutcheson, 1006. Berkley v. Ryder, 967. Bernal v. Donegal, 448. Bemey v. Byre, 648, 847. Bemie v. Vandever, 600, 601. Bernier v. Bernier, 353. Berry v. Attorney General, 787. v. Griffith, 174. v. Innes, 756. V. Mathewes, 364. V. Pierson, 104. V. Sawyer, 670. V. Wallen, 640. Berryman v. Haden, 718. Bertine v. Varian, 129. 1096 TABLE OF CASES. [befeeencbs aee to pages.] Berwmd v. Canadian Pao. Ry. Co., 241. Bethia v. McKay, 576. Bettes V. Dana, 927, 939. Bettlson V. Parringdon, 854. Betts V. Lewis, 586. Bevaus v. Sullivan, 664. Beveridge v. Hewitt, 384, 386. Beverley v. Brooke, 499. V. Walden, 629. Bibb V. Shackelford, 514, 536. Bickerdike v. Allen, 662, 663. Bickford v. Skewe, 571. Blcknell v. Gough, 270. Bicycle Stepladder Co. v. Gordon, 235. Biesenthall v. Williams, 197. Bigelow V. Sanford, 235, 263. v. Winsor, 581, 714. Biggerstaff v. Biggerstaft, 642. Biggs, Ex parte, 561. V. Kouns, 821. Bignall v. Atkins, 898, 899. Blgnold V. Audland, 117, 821. v. Springfield, 800. Billing V. Flight, 233, 234, 270. Billings V. Aspen Mining & Smelting Co., 61. V. Carver, 562. Billingslea v. Gilbert, 333. V. Manear, 266. Billingsley v. People, 567. Biloxi City R. Co. v. Maloney, 201. Bingham v. Dawson, 711, 981, 1038. v. Winona County Sup'rs, 467, 468 Binks V. Binks, 64, 894, 896, 1015, 1029 Binney's Case, 334, 346. Binns v. Mount, 395. Birchall, In re, 733. Bird V. Magowan, 231. V. Stout, 416, 417. Bird's Committee v. Bird, 22. Birdsall v. Hewlett, 777. V. Patterson, 643. v. Waldron, 395. Birdseye v. Heilner, 309. Blrdsong v. Birdsong, 37, 79. Birdwood v. Hart, 166. Blrely's Ex'r v. Staley, 88. Birmingham v. Lesan, 893. Biron v. Edwards, 474. BischofEsoheim v. Baltzer, 851. Bischoffsheim v. Brown, 400. Biscoe v. Coulter, 658. Bishop v. Miller, 958. V. Willis, 782. Bishop's Heirs v. Bishop's Administra- tor and Heirs, 138. Bishop of London v. Fytche, 860. Bishop of Rochester v. Knapp, 228. Bissell v. Bozman^ 601. Bittle V. Stuart, 138. Black V. Black, 272. V. Henry G. Allen Co., 414. V. Huggins, 543. V. Jackson, 513. V. Lamb, 630, 631, 636, 645, 646. V. Lusk, 204. V. Miller, 232, 329. V. Shreeve, 152, 239, 262. V. Shreve, 630, 636. Blackamore's Case, 177. Blackburn v. Stace, 394, 395. Blain v. Agar, 47. Blain v. Home Ins. Co. of New York, 781. Blair v. Harrison, 427. Blair v. Illinois Steel Co., 957. v. Reading, 449, 576, 677, 973. V. Silver Peak Mines, 670. V. Turtle, 180. Blaisdell v. Stevens, 368. Blake v. Blake, 394. V. Douglass, 219. v. Foster, 711, 888, 889, 980, 1039. V. Garwood, 823. V. People, 563. V. Williams, 496. Blakemore v. Glamorganshire, 512. Blakeney v. Ferguson, 343, 355, 664, 665, 671, 771. Blakey v. Johnson, 628. Blanchard v. Bigelow, 583. V. Cooke, 196. Blandy v. Griffith, 996. Blanton v. Rose, 730. BlatcMord v. Newberry, 80. Blauvelt v. Ackerman, 610. V. Smith, 760, 761. Blease v. Burgh, 149. V. Garlington, 677. Bledsoe v. Martin, 671. Bleyer v. Blum, 505. Bliss V. Boscawen, 521. V. French, 821, 825. V. Nichols, 656. V. Parks, 142. Blodgett V. Hobart, 657, 957. V. Town of Brattleboro, 164. Bloodgood V. Clark, 443, 481, 487. V. Kane, 282. Bloom V. Burdlck, 172. Bloomfield v. Snowden, 517, 518, 521, 527. Bloomingdale v. Chittenden, 464. Blount V. Burrow, 659, 660, 775. v. Societe Anonyme du Filtre Chamberland Systeme Pas- teur, 515. Blower v. Morrets, 919. Bloxham v. Florida Cent. & P. R. Co., 887, 888, 983. Blue v. Watson, 813, 818, 820, 833. Blum v. Mitchell, 662, 663. Blumenthal v. Brainerd, 26. Blundon v. Crosier, 538. Blunt V. Hay, 899. Blyth V. People, 440. Blythe v. Hinckley, 433, 722, 949-951. 956, 970, 989. Board of Education of City of Atchi- son V. Scoville, 816. Board of Trade v. Riordan, 521. Boddy v. Kent, 918, 924. Bodman v. Morgan, 532. Boehm v. Wood, 502, 509. Boehme v. Rail, 411. Boeve V. Skipwith, 889. Bofll V. Fisher, 50. Bogardus v. Trinity Church, 78, 277, 279, 309, 310, 328. Bogert V. Bogert, 399. V. Furman, 622. Boggs V. Forsyth, 281. Bogle V. Bogle, 950, 962. BoUeau v. Rutlin. 655. Boisgerard v. Wall, 41, 44. Bolgiano v. Cooke, 122. Bolman v. Lohman, 145. Bolton V. Bolton, 922, 936. v. Corporation of Liverpool, 403. V. Floumoy, 133, 595, 598. V. Gardner, 282, 302. V. Martin, 180. TABLE OP CASES. 1097 [kefebenoes abb to pages.] Bolware v. Bolware, 621. Bonaparte v. Baltimore, H. & L. R. Co., 517. Bond V. Duer, 340. V. Hopkins, 3, 879. V. Howell, 204. V. Newcastle, 169. V. Pennsylvania Co., 261. V. Wilson, 175. Bondurant v. Sibley's Heirs, 410. Bonham v. Craig, 328. V. Neweomb, 739. Bonnell v. Lewis, 642, 739, 740. V. Roane, 343. Bonner v. Johnston, 395. V. People, 558. Bonnifleld v. Thorp, 158. Boody V. Kent, 455. Book V. Justice Min. Co., 949, 952. Booker v. Booker, 838, 840-843. Boon V. Pierpont, 242. Boon's Heirs v. Chiles, 735. Boone v. Chiles, 327, 650. Boorman v. Sunnuchs, 1030. Booth V. Clark, 27, 28. V. Creswicke, 802. V. Leycester, 575, 577. V. McJilton, 684. v. Rich, 729. V. Stamper, 145, 261, 267, 417. V. Wiley, 410, 650. Boothby v. Walker, 395. Bootle V. Blundell, 627, 642, 643, 645, 703. Borders v. Murphy, 297. Borie v. Satterthwaite, 107. Borough of Rutherford v. Alyea, 76. Bosanquet v. Marsham, 433, 434. Bosher v. Richmond & Harrisburg Land Co., 72. Bosley v. Phillips, 150. Bossard v. Lester, 575, 576. Boston & A. R. Co. v. Parr, 264. Boston & R. Electric St. Ry. Co. v. Bemis Car-Box Co., 981, 1038. Bott V. Birch, 676. Botts V. Cozine, 391. V. Verelst, 677, 850. Boucher v. Boucher, 788. Bouohier v. Dillon, 806. Boughton V. Philips, 885. Bound V. South Carolina Ry. Co., 443, 755. Bourke v. Callanan, 630. Boutwell V. Vandiver, 146. Bovaird v. Seyfang, 67, 131, 142, 143, 150, 151, 153. Bowden v. Beauchamp, 581. V. Hodge, 680. V. Schatzell, 397. Bowen v. Christian, 169. V. Cross, 422-424. V. Gent, 49. V. Idley, 75, 433. V. Wilcox & Gibbs Sewing Ma- chine Co., 461. Bower BarfE Rustless Iron Co. v. Wells Rustless Iron Co., 355, 361. Bowers' Adra'r v. Bowers, 593. Bowes V. Hoeg, 261. Bowhee v. Grills, 208. Bowie V. Minter, 890, 894, 895, 90fi, 917, 941, 942, 1033. Bowles V. Johnson, 692. V. McAllen, 36. V. South, 711. Bowman v. Bowman, 202. Bowman v. Lygon, 240. V. Marshall, 266, 269. V. Sheldon, 461. Bowyer v. Bright, 783, 910, 911. V. Pritchard, 827. Box V. Stanford, 322. Boyce's Ex'rs v. Grundy, 247. Boyd, Ex parte, 853. V. Clements, 410. V. Gunnison, 624, V. Heinzelman, 390. V. Hoyt, 154. V. Mills, 260. V. Petrie, 227. V. United States, 226. V. Vanderkemp, 203. V. Wyley, 128. Boyden v. Reed, 980, 990. Boyland v. Boyland, 166. Boyle V. Zacharie, 13. Boynton v. Ingalls, 1038. Boys V. Morgan, 790. Bozon V. Bolland, 208, 895. Braband v. Hoskins, 234. Brabrook Tailoring Co. v. Belding, 118. Brace v. Taylor, 249. Bracken v. Kennedy, 307. V. Preston, 122. V. Union Pac. Ry. Co., 170. Brackett v. Norton, 138. Brackin v. Newman, 420. Bradford v. Peckham, 542, V. Williams, 389, 390. Bradish v. Gee, 725, 726, 733, 786, 802. V. Grant, 420, 591. Bradley, Ex parte, 550. V. Bosley, 234. V. Bradley, 72. V. Clark, 321. V. Converse, 140. V. Crackenthorp, 680. V. Dibbrell, 892. V. Drone, 195, 196. V. Merrill, 580. Bradshaw v. Bradshaw, 395, 396. V. Outram, 927. Bradt v. Kirkpatrick, 235. Brady v. Hamlett, 757. V. McCosker, 946. Braman v. Wilkinson, 950. Bramlet's Heirs v. Pickett's Heirs, 976. Bramston v. Carter, 433. Branch v. Walker, 450. Brandlyn v. Ord, 581. Brandon v. Cabiness, 139, 652. V. Sands, 857. Brandon Mfg. Co. v. Prime, 957, 958. Brant, In re, 480. Brasher's Ex'rs v. Van Cortlandt, 455. Brattle v. Waterman, 381. Braxton v. Lee's Heirs, 457, 730. Brayton v. Jones, 416. v. Smith, 509. Breckenridge's Heirs v. Ormsby, 954. Breckinridge v. Waters' Heirs, 188. Bree v. Beck, 629. Breedlove v. Nioolet, 17. Breeze v. Haley, 468. Breltenbach v. Bush, 179. Breitung v. City of Chicago, 530. Brend v. Brend, 739. Brent v. Washington's Adm'r, 267. Bressler v. McCune, 595, 739, 740. Brevard v. Summar, 475. Brewer v. Dodge, 203. 1098 TABLE OF CASES. [EEEBEENCES ABE TO PAGES.] Brewer v. Proprietors of Boston Thea- tre, 56. Brewster v. Cahill, 265. Bridger v. Thrasher, 139. Bridges v. McKenna, 83. V. Sheldon, 180, 772. Bridgharn, In re, 470. Brien v. Marsh, 314. V. Paul, 497. Briggs V. Briggs, 410. V. Stroud, 210, 211, 277, 278. Brill V. Mary A. Riddle Co., 354, 361. Brink v. Morton, 640. Brinkerhoffi v. Brown, 70, 76, 145, 240. 697, 712, 872. V. Franklin, 950. Brinkley v. Brinkley, 438. Britain v. Cowen, 164. Britton v. Brewster, 734. Broad v. Broad, 739. Broadbent v. State, 872. Brockenbrough's Ex'rs v. Spindle's Adm'rs, 639, 644. Brookett v. Brockett, 639, 640, 641. Brockman v. Aulger, 606, 612, 615. Broderick's Will, In le, 13. Brodie v. Bickley, 32. V. Bolton, 778. V. Skelton, 188. Brokaw v. McDougall, 621. Bromley v. Holland, 64. V. Smith, 44. Bronson, In re, 553. V. Keokuk, 170. V. La Crosse & M. R. Co., 958, 959. V. Sohulten 13, 205, 753. Brooke v. Clarke, 767. V. Hewitt, 252. V. Mostyn, 732, 733. V. Phillips, 292-294. Brookes v. Whitworth, 143. Brookfleld v. Bradley, 753, 780. Brooks V. Byam, 340, 361. V. Cannon, 684. V. Delaplaine, 329. V. Dent, 396. V. Dun, 211. V. Gibbons, 239, 246. V. Gillis, 649. V. Laurent, 915. V. Lowenstein, 139. V. Mead, 383. V. Moody, 958. V. O'Hara, 520. V. Purton, 353. V. Railroad Co., 199. V. Sutton, 302. Brophy v. Holmes, 783. Broughton v. Mitchell, 70. Brown, Ex parte, 692, 699. V. Aspden's Adm'rs, 781, 782. V. Bank of Mississippi, 893. V. Bedford City Land & Improve- ment Co., 140. V. Bell, 958. V. Brown, 202, 205, 551, 608, 882. V. Byrne, 593. V. Child, 677. V. City of Chicago, 454. V. Clifford, 636. V. Cohn, 468. V. Cranberry Iron & Coal Co., 703, 716. V. De Tastet, 393. V. Dudbridge, 249. Brown v. Guarantee Trust & Safe De- posit Co., 72, 145. V. Haffi, 502, 503, 510, 541. V. Humphreys, 211. V. Keating, 362. V. Kennicott, 476. V. Lawton, 70. V. Lee, 932. V. Luehrs, 518. V. Martin, 896, 898. V. Miner, 630. V. Newall, 226. V. Parkinson, 639. V. Pechman, 471, 472. V. Pierce, 340. V. Kioketts, 42, 381, 439. V. Sansome, 756. V. Scottish - American Mortgage Co., 354, 358. V. Solary, 151. V. Southworth, 680, 683. V. Story, 228. V. Swann, 854. V. Vermuden, 46, 1037. V. "Winans, 540. V. Wylie, 110. V. Wyncoop, 737. Browne v. Poyntz, 391. Brownell v. Curtis, 357, 365, 858, 876, 877. Browning v. "Watkins, 823. Brownlow v. Chandos, 928. Brownson v. Reynolds, 553. Brownsword v. Edwards, 239, 249, 272, 316. Bruce v. Allen, 259. V. Roney, 761. Bruen v. Bruen, 236. Bruggestradt v. Ludwig, 620, 624. Bruin v. Knott, 719. Brule, In re, 550. Brumagin v. Chew, 780, 791, 795. Brumly v. Westchester County Mfg. Soc, 69, 872. Brunker, Ex parte, 503. Brunswick v. King of Hanover, 17. Bruschke v. Nord Chicago Schuetzen Verein, 187, 266, 978, 987-991, 1001, 1002. Brush Electric Co. v. Brush-Swan Electric Light Co., 969. Bryan v. Blythe, 153. V. McGee, 32. V. Morgan, 595. Bryant, In re, 534. V. Groves, 651. V. Leyland, 853. V. Vix, 756. Bryn Mawr Nat. Bank v. James, 173. Buchanan v. Alwell, 594. V. McManus, 203. Buchoz V. Lecour, 62. Buck V. Buck, 414, 552, 561. V. Fawcett, 467, 1006. V. Fischer, 124, 190, 191. V. Lodge. 395. Buckeridge v. Glasse, 148. Buckingham v. Coming, 907, 995. V. Peddicord, 368. v. Wesson, 950. Buckley v. Corse, 411, 514, 527. Buckmaster v. Harrop, 710. Buckner v. Abrahams, 872. V. Ferguson, 854, 864, 865, 869, 870. Buda Foundry & Manufacturing Co. v. Columbian Celebration Co., 81. Buerk v. Imhaeuser, 235. TABLE OF CASES. 1099 [BEFBBENCKS ABE TO PAGES.] Buffalo V. Town of Pocahontas, 150. Buffalow V. Buffialow, 153. Buffington v. Harvey, 67, 516, 536, 990, 1000, 1002. Buffum's Case, 549, 562. Bugbee v. Sargent, 152, 587. Buhlman v. Humphrey, 536. Bulkeley v. Dunbar, 375. Bulklee v. "Van Wyck, 333. Bulkley v. Bulkley, 297. V. Van Wyck, 333, 347, 653. Bull V. Bull, 131. V. Griffin, 332. Bullard v. Spoor, 219. Bullock V. Boyd, 302. V. Brown, 950. V. Knox, 160. V. Richardson, 108. Buloid V. Miller, 360, 362. Bunco V. Gallagher, 70. Bunker Hill & Sullivan Mining & Con- centrating Co. V. Shoshone Min. Co. 277, 294, 590. Bunn V. Timberlake, 246. Bunyan v. Mortimer, 217. Burbridge v. Higgins' Adm'r, 917. Burch V. Scott, 517, 742, 749, 753, 783, 976, 999, 1003, 1020, 1037. Burchard v. Boyce, 146. Burden v. Burdell, 330, 422, 951. Burdoine v. Shelton, 739. Burger v. Potter, 83, 291. Burgess, In re, 18. V. Martin, 118. V. Pope, 978. V. Smith, 861. V. Wlieate, 954. V. Wilkinson, 608. Burgin v. Giberson, 421, 422. Burk V. Muskegon Machine & Foundry Co., 25, 26, 240. Burke v. Smith, 890, 911. Burlew v. Hillman, 63. Burley v. Flint, 978, 987. Burlington Sav. Bank v. City of Clin ton, 144. Burlington & Missouri River R. Co. v. Marchand, 388. Burnet v. Sanders, 884. Burnett v. Anderson, 813, 818. V. Boyd, 735. V. Sanders, 885. Burney v. Ball, 433. V. Morgan, 918. Burnham v. Dalling, 474, 751. V. Huffman, 422. v. Morrissey, 572. V. Smith, 466, 471. Burnley v. JefCersonville, 322. V. Stevenson, 762. Burns v. Doyle, 457. V. Hobbs, 877. V. Lynde, 116. Burpee v. First Nat. Bank of Janes ville, 340. V. Smith, 243. Burr V. Burr, 631. V. Burton, 360. Burrall v. Raineteaux, 259, 351. Burras v. Looker, 662. Burrell v. Nicholson, 366, 403. Burroughs v. McNeill, 604. V. Oakley, 395. Burton, In re, 463. V. Neville, 227, 403. Bush V. Adams, 360, 361. Bush V. Bush, 314. V. United States, 997, 998. Bushell V. Bushell, 217. Bushnell, In re, 693. V. Harford, 518. Busick V. Van Ness, 328. Bustamente v. Bescher, 211, 212. Bustard v. Gates, 218. Butler V. Butler, 387, 412. V. Catling, 321. V. Kinzie, 192. Butterworth v. Bailey, 673, 871. V. Hill, 196. Buttlar V. Buttlar, 651. Button V. Price, 802. Buxton V. Sidebotham, 704. Byers v. Sugg, 214. V. Surget, 133. Byington v. Wood, 366, 608, 612, 613. Bylandt V. Bylandt, 501. Bynum v. Ewart, 139. Byrd v. McDaniel, 589. Byrne v. Byrne, 677. C. Cabell's Ex'rs v. Megginson's Adm'rs, 117. Cadotte v. Cadotte, 755. Cable V. Alvord, 500, 503. Cadwallader v. Evans, 102. Cain V. Gimon, 417. v. Jennings, 202. Calcott V. Maher, 672. Caldwell v. Blackwood, 255. V. First Nat. Bank, 887, 894, 907. V. King, 140, 409. V. McWilliams, 466. V. Taggart, 35, 36. Calhoun v. Mosley, 24. California v. Southern Pac. R. Co., 39. Callaghan v. Rochfort, 690. Callaway v. Alexander, 1005. Callender v. Colegrove, 622. V. Painesville & H. R. Co., 437. Caller v. Shields, 977, 1003. Callow V. Mince, 710. Calloway v. Dobson, 408, 422. Calverly v. Williams, 955, 961, 966. Calvert v. Carter, 409. Calwell V. Boyer, 898. Camao v. Grant, 228. Camden v. Ferrell, 986. V. Stuart, 620. Camden Horse R. Co. v. Citizens' Coach Co., 735. Camden &. A. R. Co. v. Stewart, 137, 579. Cameron v. Abbott, 135. V. McRoberts, 757. Cameron's Committee v. Pottinger, 24. Cammann v. Traphagan's Ex'r, 380. Cammeyer v. United German Luther- an Churches, 70. Camp V. Bancroft, 414. V. Matheson, 520. V. Mills, 145. V. Chene, 128. Campbell v. Bowne, 891. V. Campbell, 164, 218, 376. V. City of New York, 1029. V. French, 406. V. Mackay, 143, 145, 252, 1008. V. Mesier, 751. V. Morrison, 521. 1100 TABLE OF CASES. LREFEBENCES a gin TO PAGES.] Campbell v. Paris & D. R. Co., 136. V. Point Pleasant & Ohio River R. Co., 545. V. Poultney, 528. V. Powers, 264, 413, 427, 456. V. Routt, 961. V. Runyan, 538. V. Scougal, 680. V. Seaman, 516. V. Tousey, 32. Campbell's Case, 476. Campbell's Ex'rs v. Campbell's Ex'r, 979. Candler v. Pettit, 367, 625, 893. Canerdy v. Baker, 783, 796. Canham v. Vincent, 585. Cann v. Cann, 679, 710, 841. Cannon v. Collins, 139. V. Hemphill, 742. V. McNab, 853. V. Norton, 665. Canton v. McGraw, 147. Cape May & S. L. R. Co. v. Johnson, 550, 534, 535. Capehart v. Cunningham, 175. V. Hale, 124. Capel V. Butler, 208. Cardale v. Watkins, 864. Carew v. Cooper, 72B. V. Johnston, 88, 222, 726, 727, 783. Carey v. Brown, 51, 82. V. Giles, 1002. V. Hatch, 116. V. Hillhouse, 7B, 420. V. Houston & T. C. Ry. Co., 1006. V. Hoxey, 39, 41. V. Jones, 340. V. Roosevelt, 53. V. Smith, 416, 426, 431. Carithers v. Jarrell, 665, 666. Carleton v. Leighton, 88. Carlisle v. Cooper, 390, 696. V. Cowan, 286. V. Foster, 638. V. Howes, 590. V. Stevenson, 512. Carlos V. Brook, 708. Carman v. Hurd, 116. V. Watson, 77. Carmichael v. Wilson, 395. Carneal v. Wilson, 1016. Carnochan v. Christie, 952, 953, 956. Carow V. Mowatt, 899. Carpenter v. Benson, 400, 404. V. Easton & A. R. Co., 629, 740. V. Gray, 353. V. Hall, 147. V. Providence Washington Ins. Co., 667, 669, 670, 671. Carr v. Bob, 133. V. Commercial Bank of Racine, 175. V. Iglehart, 123. V. United States, 18. V. Weld, 320. Carradine v. Carradine's Estate, 628. Carrington v. Cantillon, 168. V. Cornock, 685. V. Holly, 575, 576, 581. Carroll v. Parran, 996. V. Richardson, 956, 974. V. Taylor, 970. V. Waring, 270, 285, 297. Cart V. Hodgkin, 636. Carte v. Ball, 326. Carter v. Allan, 89. V. City of New Orleans, 79. Carter v. Com., 547, 549, 566. V. De Brune, 168. v. Edmonds, 708. V. Ingraham, 112. V. Jordan, 861. V. Lewis, 594. V. Lyman, 135. V. Smith, 77. V. Torrance, 198, 201, 203. V. Treadwell, 150, 153. V. Uhlein, 60. Carteret v. Paschal, 1015. Cartigne v. Raymond, 191. Cartmell v. McClaren, 581. Cartwright v. Cartwright, 702. V. Clark, 956, 960, 969. V, Johnston, 960. Cartwright's Case, 547, 553, 566. Caruthers v. Hartsfield, 518. Carver v. Pinto Leite, S65. V. Williams, 216. Carwick v. Toung, 390. Gary, In re, 452. V. Gary, 610. V. Herrin, 620, 622, 650. V. Simmons, 128. Case V. Abeel, 615. Casey v. Horton, 228. V. Leslie, 467, 468, 471. Cassels v. Vernon, 150. Casserly v. Waite, 424. V. Wayne Circuit Judge, 350, 434. Caster v. Wood, 410. Castleman v. Templeman, 28, 29. V. Veitch, 241. Caswell V. Caswell, 205. Catlin V. Harned, 772. V. Wheeler, 148. Caton V. Willis, 133. Catton V. Carlisle, 892, 912, 935. Cauley v. Lawson, 145. Cavender v. Cavender, 379. Cawthom v. Chalie, 239. Cazenove v. Vaughan, 685, 687. Cecil V. Clark, 629. V. Salisbury, 654. Cedar Valley Land & Cattle Co. v. Cobum, 887. Celluloid Mfg. Co. v. Cellonite Mfg. Co., 607. Central Bank of Frederick v. Cope- land, 187. Central Bridge Corp. v. City of Low- ell, 470, 656. Central Nat. Bank of Baltimore v. Connecticut Mut. Life Ins. Co., 286. Central Pac. R. Co. v. Dyer, 151. Central R. Co of New Jersey v. New Jersey West Line R. Co., 390, 391. Central Trust Co. v. Chattanooga R. & C. R. Co., 27. v. Grant Locomotive Works, 989. V. St. Louis, A. & T. Ry. Co., 27. V. Texas & St. L. Ry. Co., 79, 620. V. Virginia, T. & C. Steel & Iron Co., 475, 476. V. Western C. R. Co., 887. Central Trust Co. of New York v. East Tennessee, V. & G. Ry. Co., 26. V. Madden, 594. V. Richmond & D. R. Co., 608. V. Wabash, St. L. & P. Ry. Co., 423. V. Western North Carolina R. Co., 55. Chadbourne's Ex'rs v. Coe, 58. TABLE OF CASES. 1101 [befebenoes abb to pages.] Chadwell v. McCall, 189. Chafee v. Quidnick Co., 47, 550. Chaffln V. Kimball's Heirs, 198, 347, 653. Chain v. Hart, 388. Chamberlain, Ex parte, 497. Chambers v. Chalmers, 119, 136. V. Kunzman, 735. V. Warren, 880. V. "Wright, 255. Chamley v. Dunsany, 591, 684, 727, 954. Champ V. Moody, 769. Champernoon v. Totness, 401. Champlin v. Champlin, 273, 318, 321, 322 V. Parish, 327. V. Petrie, 696. Chance v. Teeple, 657. Chancellor v. Spencer, 984. Chancey v. May, 44. Chandler v. Morey, 830. Chandler's Bx'x v. Hill,-707. Chandos v. Talbot, 923. Chappell V. Funk, 319. Chapin v. Coleman, 282, 288, 327, 664. Chapman v. Banker & Tradesman Pub. Co., 116. V. Chunn, 144, 146. V. Colby, 138. V. Evans, 600. V. Gibbons, 190. V. Harrison, 518. V. Kane, 734, 739. V. School District, 344, 360. V. Smith, 636. Chappedelalne v. Dechenaux, 302. Chappell V. Purday, 809. Charkieh, The, 17. Charles v. City of Marion, 517. V. Miller, 467. Charleston Ins. Co. v. Potter, 586. Chase v. Edwards, 458. V. Manhardt, 818. V. Searles, 145, 152, 900, 901, 1034. V. Winans, 626, 628. Chase's Case, 236, 479. Chattanooga Grocery Co. v. Living- ston, 237, 426, 428. Chautauque County Bank v. Risley, 26. Chazournes v. Mills, 359. Cheatham v. Pearce, 283, 286. Cheely v. Clayton, 170. Cheney v. Goodwin, 150. V. Patton, 272, 275. Cheery v. Legh, 968. V. Monro, 85, 154, 235. Chervet v. Jones, 664. Chesapeake, O. & S. W. H. Co. v. Heath's Adm'r, 212. Chesapeake & Ohio Canal Co. v. Bal- timore & O. R. Co., 537. V. Blair, 60. V. Young, 517. Chesnutt v. Frazier, 352. Chester v. Halliard, 73. V. Life Ass'n of America, 899, 1030. V. Miller, 209. Chestnutt v. Frazier, 259. Chetwood v. Brittan, 536, 543. Chew V. Bank of Baltimore, 586, 587. v. Glenn, 142. Chewning v. Nichols, 187. Chicago, City of, v. Cameron, 57. V. Collins, 46. V. Sheldon, 134. Chicago Anderson Pressed Brick Co. V. Sobkowiak, 385. Chicago Artesian Well Co. v. Connec- ticut Mut. Life Ins. Co., 975. Chicago Building Soc. v. Haas, 988. Chicago Exhibition Co. v. Illinois State Board of Agriculture, 118. Chicago, M. & St. L. Ry. Co. v. Third Nat. Bank of Chicago, 434. Chicago, M. & St. P. Ry. Co. v. Keo- kuk Northern Line Packet Co., 28. V. Third Nat. Bank of Chicago, 426. Chicago Planing Mill Co. v. Mer- chants' Nat. Bank, 176. Chicago Public Stock Exchange v. McClaughry, 329, 712. Chicago, St. L. & N. O. R. Co. v. Ma- comb, 262. Chicago & A. R. Co. v. Union Rolling Mill Co., 576. Chicago & G. W. R. Land Co. v. Peck, 51, 475, 476, 950. Chicago & I. R. Co. v. Lane, 227. Chicago & N. W. Ry. Co. v. Hintz, 467. Chicago & P. R. Co. v. Munger, 24. Chickering v. Failes, 578. Chicot V. Lequesne, 104, 860. Chielovich v. Krauss, 388. Child V. Brace, 325. Childs V. Pellatt, 154. Chiles, In re, 548. Chilton V. Alabama Gold Life Ins. Co., 194. Chinn v. Heale, 346. Chipman v. Thompson, 84, 233. Chisholm v. Johnson, 142, 154, 312. Chissum v. Dewes, 776. Cholmondeley v. Clinton, 247, 249, 419, 869. Cholmondely v. Orford, 678. Chouteau v. Rice, 242, 898. Christian v. Crocker, 85, 154. V. Williams, 180. V. Wrenn, 686, 687, 972. Christian Jensen Co., In re, 494. Christie, In re, 445, 464. V. Bishop, 196, 665. V. Christie, 155. Chubbuck v. Cleveland, 180, 210. Church V. Chambers, 737. v. Ruland, 635. Churchill Township v. Cummings Township, 238. Citizens' Bank of Wichita v. Farwell, 467, 469. Citizens. Sav. Bank of St. Louis v. Stewart, 740. City Bank v. Bangs, 824-827, 829, 830, 833. Claiborne v. Gross, 474. Clancy v. Craine, 254. Clapham v. White, 541. Clapp V. Sherman, 616. v. Thaxter, 782. Claridge v. Hoare, 879, 882. Clark, In re, 677. v. Bell, 125, 741. V. Burke, 550. V. Davis, 240. V. Dibble, 849. V. Ewing, 585. V. First Congregational Soc. in Keene, 416 V. Garrett, 984. V. Hall, 753-756, 780, 782. 1102 TABLE OF CASES. [EEFEBRNCES ABE TO PAGES.] Clark V. Holbrook, 71. V. Jones, 343. V. Judson, 520, 521. V. Marfield, 695. V. Parker, 567. V. Phelps, 236. V. Saginaw City Bank, 282. V. Turner, 218. V. WiUougrhby, 615, 618. Clark's Ex'rs v. Van Riemsdyk, 663, 667, 670. Clarke, In re, 567. V. Eastern Building & Loan Ass'n, 694. V. Elliott, 395. V. Gilmanton, 219. V. Hastings, 329. V. Jennings, 711. V. Mathewson, 887, 915. V. Sawyer, 588. V. Strong, 188. V. Tinsley's Adm'r, 365. V. Turton, 650. V. White, 652. Clarkson v. De Peyster, 63, 85, 249, 394, 396. V. Louderback, 653. V. Morgan's Devisees, 985. Clary v. Grimes, 688. Clason V. Baldwin, 470. V. Lawrence, 588. V. Morris, 658, 666. Classen v. Danforth, 544. Clay V. Towle, 662. Clayton v. Henley, 83. V. Lyle, 538. V. Nugent, 627, 639. V. Shoemaker, 517. V. Thompson, 663. V. Winchelsea, 105, 274. V. Tarrington, 644. Cleavenger v. Felton, 81. Cleaver v. Matthews, 104, 122. V. Smith, 584, 585. Cleeve v. Gascoigne, 644, 645. Cleland v. Casgrain, 843. Clements v. Moore, 661. V. Pearson, 596. Cleveland v. Chamblis, 957. Cleveland Nat. Bank v. Bryant, 494. Cleveland Telegraph Co. v. Stone, 39, Clitfe V. Wilkinson, 228. Clifford V. Coleman, 419. Clifton V. Robinson, 543. Clinch River Mineral Co. v. Harrison, 191. CUndennin v. O'Keeffe, 819. Clissold V. Powell, 360. Clopton V. Clopton, 444. Clough V. Bond, 925. Cloyd V. Trotter, 170, 172. Clutch V. Clutch, 457. Clute V. Bool, 360. Clyde V. Richmond & D. R. Co., 643. Coach V. Adsit, 953. Coale V. Chase, 339, 538, 670. Cobb V. Baker, 713. V. Baxter, 958, 960. V. Judge of Superior Court, 214. V. Rice, 811, 830. Cobb's Ex'r v. Bums, 640. Cobum V. Schroeder, 770, 778. Cochran v. Couper, 781, 977, 985. V. McDowell, 309. V. Miller, 268, 755. V. Rison, 979, 1001, 1003. Cochrane v. O'Brien, 814. Cock V. Hobb, 1040. Cockbum v. Thompson, 35, 253, 270, 587. Cocke V. Minor, 698. V. Trotter, 970. Cocke's Adm'r v. Gilpin, 719, 720. Cockerell v. Cholmeley, 389. Cockrell v. Gurley, 125. v. Warner, 956, Cocks V. Foley, 123. V. Worthington, 689. Coddington v. Idell, 774. Codington v. Mott, 417, 588. Codner v. Hersey, 333. Codrington v. Houlditch, 934. Codwise v. Gelston, 444. V. Taylor, 741. Coffin V. Argo, 985. V. Cooper, 156, 225. V. MoClure, 388. CoJfman v. Sangston, 412. Coforde v. Gartner, 213. Coggswell & Boulter Co. v. Coggswell, 735. Cogswell V. Armstrong, 811, 813, 824. Cohen, Ex parte, 321, 496, 563. Cohen, In re, 548. V. Gratz, 643. Coiron v. Millaudon, 58. Coke V. Fountain, 684. V. Wilcooks, 356. Colbert v. Daniel, 264, 587. Colchester, City of, v. , 949. Colclough V. Evans, 888, 910. V. Sterum, 764. Coldlng V. Badger, 583. Cole V. Flitcraft, 293. V. Johnson, 193. V. Littledale, 996. V. Miller, 998. V. Savage, 131, 136, 520. V. Scott, 725. Colebrook v. Jones, 228. Coleman v. Butt, 235. v. Chambers, 814. V. Cross, 390. V. Franklin, 780. V. Gage, 540. V. Hudson River Bridge Co., 544. V. Lyne's Ex'r, 342. V. Martin, 79. V. Moore, 699. Coleriek v. Hooper, 189. Cole Silver Min. Co. v. "Virginia & Gold Hill Water Co., 516, 539. Coles V. Bowne, 328. V. Gumey, 168. Coley V. Coley, 711. Colgate V. Compagnie Francaise du Telegraphe de Paris, 358. CoUard v. Smith, 352. CoUedge v. Horn, 472. College of 'Saint Mary Magdalen v. Sibthorp, 794. Collier v. Falk, 209. Collins V. Ayers, 33. V. Crumpe, 455. V. Hare, 645. V. Jackson, 640. V. Knight, 139. V. Loftus, 1006. V. Taylor's Ex'rs, 578. Collinson v. , 113, 437, 503, 504. Colhs V. CoUis, 395. V. Swayne, 861. Colls V. Stevens, 860. Colman v. Sarell, 753. TABLE OF CASES. 1103 [BEFEBENOES ABE TO PAGES.] Colonial & United States Mortgage Co. V. Hutchinson Mortgage Co., 872 Colt V. Colt, 101. Colton V. Liuttrell, 860. V. Ross, no, 141. Columbian Equipment Co. v. Mercan- tile Trust & Deposit Co., 594. Columbus, S. & H. R. Co.'s Appeals, 614, 620. Columbus & W. Ry. Co. v. Witherow, Colviile V. Colville, 990, 995. Colvin's Estate, In re, 495, 498. Com. V. Archbald, 10, 592-594. V. Dandridge, 649, 552, 553, 557. V. DiefEenbach, 761. V. Newton, 572, 573. Combe v. City of London, 860. Combs V. Hodge, 655. Comer v. Felton, 760. Commercial Assur. Co. v. New Jersey Rubber Co., 890. Commercial Bank of Augusta v. Sand- ford, 954. Commercial Bank of Buffalo v. Bank of -State of New York, 227. Commercial Bank of New Jersey v. Reckless, 325. Commercial Mut. Ins. Co. v. McLoon, 147, 842. Commercial Nat. Bank of Columbus V. Motherwell Iron & Steel Co., 29. Commissioners of Highways v. Deboe, 156, 344, 415. Commonwealth Title Insurance & Trust Co. V. Cummings, 340. Comstock, In re, 30. V. Herron, 96. V. Rayford, 71. Condict's Ex'rs v. King, 829. Condon v. Mutual Reserve Fund Life Ass'n, 482. Cone V. Jackson, 384-386. Congdon v. Aylsworth, 870. Conger v. Cotton, 667. Conley v. Nailor, 662. Connecticut Mut. Life Ins. Co. v. Tucker, 815. Connecticut R. Co. v. Rockbridge Co., 495. Connecticut & P. R. Co. v. Hendee 575. Coniull V. Ii'urgason, 292, 329. Connelly v. Dickson, 487. Connely v. Rue, 170. Connerton V. Millar, 415. Connolly v. Connolly, 982. Connor v. Ashley, 732. Connors v. City of Detroit, 127. V. Connors, 139 ConoUy v. Taylor, 419. Conover v. Conover, 293, 475. V. Musgrave, 979. V. Ruckman, 235, 537. V. -Wright, 281, 282, 297. Conry v. Caulfleld, 954. Consequa v. Fanning, 596, 707, 794. Consolidated Coal Co. of St. Louis v. Oeltjen, 295. Consolidated Electric Light Co. v. Brush Swan Electric Light Co., 144. Consolidated Rapid Transit & Elevat- ed R. Co. V. O'Neill, 386, 388. Consolidated Roller Mill Co. v. Coombs, 246. Consolidated Steel & Wire Co. v. Bumham, 472, Consolidated Store Service Co. v. Det- tenthaler, 781. Consolidated Water Co. v. Baboock, 56, 60. V. City of San Diego, 52. Contee v. Dawson, 74, 85, 334, 393, 697. V. Pratt, 388. Continental Ins. Co. v. Delpeuch, 468. Continental Trust Co. v. Toledo, St. L. & K. C. R. Co., 81. Conway v. Wilson, 353, 362, 363. Conwell V. Watkins, 83, 295. Conyers v. Gray, 511. Coogan V. McCarren, 578. Cook V. Bamfleld, 1001, 1002. V. Bee, 424. V. Broomhead, 959. V. Dews, 199, 201, 202, 332. V. Houston County Com'rs, 598, 619. V. Jenkins, 544. V. Mancius, 296, 587, 701. V. Martyn, 109, 110. V. Moulton, 761, 762. V. Rogers, 187. V. Walker, 575. Cook's Heirs v. Bay, 635, 720, 721, 984. Cooke V. Davies, 433. V. Gwyn, 484, 741, 767. V. Westall, 353. Cookson V. Ellison, 323. Cooley V. Lawrence, 207. V. Scarlett, 754. Coope V. Bowles, 27. Cooper, In re, 549. V. Branch, 640. V. Stockard, 629, 631. V. Tappan, 657, 659. Cooper Mfg. Co. v. Ferguson, 31. Cooth V. Jackson, 312, 667. Cope V. Parry, 353. Copeland v. Bruning, 976, 988, 989, 995, 1000. V. Crane, 658. V. Stanton, 606, 688. V. Wheeler, 358. Copen V. Flesher, 890, 894. Copp V. Henniker, 9. Copper Hill Mining Co. v. Spencer, 494. Corbus V. Alaska Treadwell Gold-Min. Co., 120. V. Teed, 383. Corby v. Wright, 197. Corcoran v. Chesapeake & Ohio Canal Co., 954. Corey v. Moore, 789. Corlies v. Corlies' Ex'rs, 283, 309. Cornelius v. Post, 539. Cornell v. Green, 238. Coming v. Cooper, 367. Cornish v. Tanner, 816. Cornwell Mfg. Co. v. Swift, 148. Corporation for Relief of Poor Chil- dren of City of New Brunswick v, Eden, 670. Coryell v. Klehm, 136. Cosby's Heirs v. Wiokliffe, 707. Cosmos Exploration Co. v. Gray Eagle Oil Co., 516. Cost V. Rose, 166, 198. Coster V. Clarke, 802. V. Murray, 314. Coster's Ex'rs v. Bank of Georgia, 957. Coston V. Coston, 580. 1104 TABLE OF CASES. [eefeeences are to pages.] Cotes V. Turner, 357. Cottington v. Fletcher, 282, 879. Cotton V. Parker, 783. V. Scott, 953. Cottrell V. Watkins, 264. Coultas v. Green, 579. Counselman v. Hitchcock, 321. Countess of Gainesborough v. Gifford, 421. County of La Salle v. Milligan, 174. Court V. JefEery, 700. Courtenay v. Hosklns, 688. Courier v. Crescent Sewing Machine Co., 858. Cousins V. Smith, 44. Covenhaven v. Shuler, 587. Coveny v. Athill, 678, 846. Covington v. Neftzger, 23, 24. Cowan V. Anderson, 19. V. Price, 270, 343. Cowart V. Harrod, 178. Cowdin V. Cram, 501, 510. Cowen V. Adams, 53. Cowles V. Buchanan, 104. Cowman v. Lovett, 261. Cowper V. Scott, 792. Cox V. Allingham, 702, 710, 711. V. Bank of Hartsville, 994, 1007 1009. V. City of Griffin, 281. V. CoUey, 839, 840. V. Cox, 883. V. Leviston, 962. V. Lynn, 734. V. Mobile & G. R. Co., 585. V. Price, 957. V. Wall, 67. Cox's Ex'rs V. Scott, 502, 504. Coxe V. Halsted, 446. V. Smith, 951. Coxetter v. Huertas, 521. Coyote, G. & S. M. Co. v. Ruble, 384, 386. Cozine v. Graham, 249, 270, 298, 327, 328 Crabi) V. Larkin, 631. Crabtree v. Baker, 540, 570. V. Levings, 699, 970. Craft V. Russell, 661. V. Schlag, 654. V. Thompson, 238, 241. Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 447. Craig V. Chandler, 128. V. Governor, 397. V. Horine, 189. V. McCuUoch, 571. V. People, 371. Craighead v. Wilson, 720. Cramer v. Watson, 139. Crandall v. Gallup, 954. Crane v. Brigham, 446. V. Homeopathic Mut. Life Ins. Co., 299. V. Larsen, 294. Cranston v. Smith, 298. Cranstown v. Goldshede, 582. Crary v. Barber, 207, 209. Crass V. Memphis & C. R. Co., 818, 834. Craven v. Wright, 367. Crawford v. Fisher, 815, 816. V. Foster, 211. V. Moore, 650. Creagh, In re, 519. Creak v. Capell, 393. Creasey v. St. George's Soc. of De- troit, 266. Credit Co. of London v. Arkansas Cent. R. Co., 129. Creech v. Creech, 220. Creed v. Byrne, 163. V. Lancaster Bank, 985. Creely v. Bay State Brick Co., 329. Creighton v. Kerr, 212, 216. Crellin v. Ely, 169. Cremer's Estate, 989. Crescent City Live-Stock, Landing & Slaughter House Co. v. Butchers' Union Live-Stock, Landing & Slaughter House Co., 237. Cressett v. Mytton, 841. Cresy v. Bevan, 260, 434. Creube v. Lowth, 769. Creuze v. Hunter, 755, 766. Crew V. Breed, 760. Crews V. Burcham, 73. V. Garland, 164. Crislip V. Cain, 614, 617, 751. Crittenden, Ex parte, 718, 720. Crocker v. Higgins, 61. Crocket v. Lee, 122, 734. Crockett v. Bishton, 462. Crompton v. Wombwell, 910. Crone v. Crone, 323. Crook V. Brown, 74. v. People, 561. Crooker v. Houghton, 977, 979. Croose v. Bedingfield, 664. Crosby v. Berger, 235. V. Farmer, 175. Crosby's Case, 571. Crosier v. Acer, 713. V. McLaughlin, 630. Cross V. Armstrong, 727. V. De Valle, 276, 966, 973, 974. Crossley v. Crowther, 574. Crotty V. Wyatt, 384. Crouch V. Hickin, 231, 236, 240. V. Kerr, 354, 361. Crow V. State, 556, V. Tyrell, 281, 868. V. Wood, 490. Crowe V. Wilson, 698. Crowell V. Botsford, 160, 455. Crowfoot V. Mander, 927, 933. Crowns v. Vail, 462. Crutchley v. Jerningham, 396. Cullen V. Com., 321. V. Dawson, 824, 82S. V. Queensberry, 44. CuHison V. Bossom, 263. CuUom V. Erwin, 954. CuUum V. Batre's Ex'x, 915. Culver V. Brinkerhoff, 198. V. Cougle, 456. V. McKeown, 771. Cumberland Lumber Co. v. Clinton Hill Lumber Mfg. Co., 55. Cumberland Valley R. Co.'s Appeal, 139. Cummings v. Coleman, 327. Cummings' Heirs v. Gill's Heirs, 954. Cummins v. Bennett, 575, 581. Cunningham v. Ferry, 670. V. Mitchell, 176. V. Pell, 909. V. Schley, 986. V. Tucker, 519. Cunyngham v. Cunyngham, 199, 203, 205, 789, 796, 801, Curd V. Lewis, 389, 957. Curgenven v. Peters, 395. TABLE OF CASES. IIOS [eetebenoes abb to pages.] Curling v. Townshend, 423, 663. Curre v. Bowyer, 686, 710. Currie v. Pye, 778. Currier v. Concord R. Corp., 857, 858, 876, 884. Curteis v. Candler, 775. Curtis V. Masten, 329, 360. V. Price, 764. V. Williams, 812, 815, 816, 820, 821, 824, 833. Curtis, Davis & Co. v. Smith, 895, 1029. Curzon v. De la Zouch, 259, 268, 269. Cushman v. Bonfield, 649. Cust V. Boode, 269. Cutler V. Cremer, 709. V. Simons, 395. V. Thompson, 713. Cutter V. Iowa Water Co., 139, 141, 142, 145, 147, 977. Cutting, Ex parte, 80. V. Gilbert, 76. Cuyler v. Bogert, 322, 340. D. Dabbs V. Dabbs, 635. Dabney v. Preston's Adm'rs, 382, 408. Da Costa v. Da Costa, 19. V. Dibble, 273, Sou, 714. Dahl V. Montana Copper Co., 31. Daily's Adm'r v. Reid, 198. Daingerfield v. Smith, 734. Dalsley v. Dun, 87T. Dakin v. Union Pac. Ry. Co., 236, 283. Dalby v. PuUen, 762. Dale V. McBvers, 379. V. Roosevelt, 710, 794. Dalton V. Carr, 959. V. Thomson, 842. Daly V. Hosmer, 382. Dana v. Adams, 215, 216. Dance v. McGregor, 996. Dandbridge v. Washington's Ex'rs, 53, Danels v. Taggart's Adm'r, 276, 309. Daniel v. Hannagan, 220. v. Mitchell, 667, 785, 791. Daniell v. Smythe, 133. Daniels v. Benedict, 271, 310. Danielson v. Gude, 638. Danner Land & Lumber Co. v. Stone- wall Ins. Co., 663. Danville Banking & Trust Co. v Parks, 533. Darcey v. Lake, 143. Darcy v. Blake, 481. Darley v. Nicholson, 511. Darling v. Staniford, 686. Darlington v. Bowes, 646. Darmouth v. Klock, 596. Darnell v. Reyny, 357. Darrah v. Boyce, 241. Dart V. Hercules, 209. v. McKinney, 13. V. Palmer, 48, 130. Darthez v. Clemens, 131. Darwent v. Walton, 700. Darwin v. Clarke, 405. Dashwood v. Bulkeley, 710. Daubigny v. Davallon, 16. Daughdrill v. Helms, 237. Dauphin v. Key, 238. Davendorf v. Dickinson, 495. Davenport v. Kirkland, 754. Davers v. Davers, 227. Daves, In re, 553. Equity — 70. David V. Aetna Ins. Co., 385. David V. Williams, 225. Davidson v. Bowden, 347. Davies v. Burton, 468, 471. V. Otty, 687. V. Williams, 239, 911. Davile v. Peacock, 514. Davis V. American & Foreign Chris- tian Union, 955, 958, 960. V. Bluck, 977. V. Browne, 528. V. Clabaugh, 263, 264. V. Clayton, 665. V. Cook, 954. V. Cripps, 361, 368. V. Davidson, 331, 332, 346. V. Davis, 198, 270, 434, 593, 821. V. Gaines, 127. V. Gray, 496. V. Harrison, 79. V. Ladoga Creamery Co., 27. V. Mapes, 319, 321, 373. V. Northwestern Elevated R. Co., 388. V. Peabody, 51. v. Putnam, 176. V. Reed, 534. V. Schwartz, 576, 620. V. Snead, 27. V. Speiden, 189, 997. V. Spurting, 673. V. St. Louis & S. F. Ry. Co., 475. V. Whittaker, 209. Davison v. Attorney General, 358. V. Schermerhorn, 275. Davoue v. Fanning, 153. Dawes v. Glasgow, 459. V. Thomas, 755. Daws V. Benn, 48. Dawson v. Amey, 578, 591, 974. V. Clarke, 402. v. Parrot, 777. V. Princeps, 528. V. Sadler, 236. V. Scriven, 751. V. Vickery, 306, 956. Day, In re, 388. V. Jones, 667. V. Mertlock, 216. V. New England Car Co., 542. V. Potter. 912, 934, 935, 937, 938. Dean v. Ford, 607. V. Mason, 198. V. Nelson, 1014 V. Smith, 503. Deans v. Robertson, 127. Deare v. Attorney General, 877. Dearing v. Bank of Charleston, 419. Dearman v. Wych, 799. Deas v. Harvey, 885. Deaton, In re, 553. 566. Debs, In re, 561, 565. De Butts v. Bacon, 706. Decarters v. La Farge, 786. Decker v. Caskey, 631, 702, 716. V. Miller, 778. V. Patton, 32. Deekman v. Peck, 782. Deering v. Winona Harvesting Works, 475. Deford v. State, 18. De GoUs V. Ward, 37. De GrafEenried v. Brunswick & A. R. Co., 26. Deimel v. Brown, 658. V. Parker, 596. Delahay v. McConnel, 783. De La Torre v. Bemales, 361, 364. 1106 TABLE OF CASES. [refebences aee to pages.] Delawaxe County Com'rs v. Diebold Safe & Lock Co., 655. Delaware, L. & W. R. Co. v. Brecken- ridge, 702. V. Central Stock-Tard & Transit Co., 516. Delaware & H. Canal Co. v. Pennsyl- vania Coal Co., 119. De Leon v. Owen, 386. Dell V. Hale, 877. Delondre v. Shaw, 218. De Lorme v. Pease, 385. De Louis v. Meek, 71, 265. De Luze v. Loder, 582. Demarest v. Holdeman, 146. De Mott V. Benson, 618. Den d. Ely v. Fen, 465. Den d. Hadley v. Geigher, 459. Denehey v. City of Harrisburg, 771. De Neufville v. New York & N. Ry. Co., 146. Denison v. Bassford, 186, 332, 353. Denn v. Russel, 228. Dennie v. Williams, 655. Denning v. Smith, 227, 405. Dennis v. Dennis, 136, 137. V. Green, 540. V. Riley, 885. Dennison Mfg. Co. v. Thomas Mfg. Co., 142. Dennison Paper Mfg. Co. v. Robinson Mfg. Co., 586. Denson v. Denson, 995, 1003. Dental Vulcanite Co. v. Wetherbee, 290. Denton v. Denton, 501, 504, 509. V. Jackson, 686. V. Noyes, 214. Denver & R. G. R. Co. v. Roller, 165. Denys v. Locock, 273, 280. De Peyster v. Clarkson, 396. Depeyster v. Graves, 544. Depue V. Sergent, 422. Derbyshire v. Jones, 958. De Rivaflnoli v. Corsetti, 500. Desborough v. Curlewis, 857. V. Harris, 814. Desert King Min. Co. v. Wedekind, 586. Desplaces v. Goris, 344, 360, 702. Desprez v. Mitchell, 705. De Tastet v. Bordenave, 637, 646. V. Le Tavemier, 129. Detroit, City of, v. Detroit City Ry. Co., 331, 575-577. Detroit Copper & Brass Rolling Mills V. Ledwidge, 875. Detroit Nat. Bank v. Blodgett, 642. Detroit Sav. Bank v. Truesdail, 784. Dever v. Willis, 115. Devereaux v. Cooper, 340. Devie v. Brownlow, 648. Devonsher v. Newenham, 236, 254, 260. Dew v. Clark, 678, 842. De Walt V. Doran, 334. Dewing v. Hutton, 598, 610, 620. De Wolf V. De Wolf, 856, 865. V. Johnson. 54. V. Long, 183, 342, 343. Dexter v. Arnold, 711, 782, 788, 890, 976 978, 979, 980, 981, 984, 985, 995, 996, 998, 1000, 1001, 1020, 1021. Dey V. Dunham, 738. V. Hathaway Printing, Telegraph & Telephone Co., 214, 584. Deyer v. Williams, 661. Dial V. Reynolds, 151. Diamond Match Co. v. Ohio Match Co., 144. Dias V. Bouchaud, 70, 255. V. Merle, 406, 886, 905. Dibrell v. Carlisle, 726. Dick V. Dick, 144, 146, 147, 298. Dick Co. V. Sherwood Letter File Co., 469. V. Wichelman, 444. Dicken v. MvKinley, 298. Dickerson v. Hodges, 377. Dickey v. Reed, 535. Dickinson v. Torrey, 605. Dickson V. Poindexter, 416, 894. Didier v. Davison, 277. Digges' Lessee v. Beale, 748. Dill V. Shahan, 956. Dillard v. Dillard, i4Z. Dillard & Coffin Co. v. Smith, 253. Dillingham v. Barron, 215. V. Hawk, 27. Dillon V. Alvares, 293. V. Barnard, 23T. V. Crockcroft, 469, 471. V. Davis, 434. Dilly V. Doig, 150, loi. V. Francis, 116. V. Rand, 158. Diltz V. Chambers, 172. Dilworth v. Curtis, 477, 478, 740. Dimpfell v. Ohio & M. R. Co., 56. Dinet v. People, 663. Dinsmoor v. Hazelton, 320, 339, 340. Dinsmore v. Grossman, 116, 869. V. Westcott, 174. Dinzy v. Illinois Cent. R. Co., 165. Dipper v. Durant, 411, 520. District Grand Lodge v. Marx, 144. District of Columbia v. Robinson, 883. Dixon V. Astley,-395. V. Buell, 62. V. Higgins, 707. V. Mason, 754. V. Niccolls, 138. V. Olmius, 232, 767. V. Parks, 576, 580. V. Redmond, 521. V. Wyatt, 736. Dixon's Adm'r v. Campbell, 735. Dixon's Bx'rs v. Ramsay's Bx'rs, 31. Doak V. Stahlman 188, 189. Doble V. Potman, 954. Dobson V. Leadbeater, 424. V. Peck Bros. & Co., 312. Dobyns v. Rawley, 419. Dock V. Dock, 860. Dodd V. Astor, 444. V. Una, 563. Dodge V. Dodge, 888. V. Griswold. 639, 641. V. State, 562. V. Woolsey, 56. Dodson V. Juda, 918. Doe V. Green, 372, 747. V. Roe, 643. V. Springfield Boiler & Mfg. Co., 165. Doe d. Bowerman v. Sybourn, 655. Doe d. Duval's Heirs v. McLoskey, 915, 927. Doe d. McCall v. Carpenter, 595. Doggett V. Eimerson, 756. V. Lane, 713. V. Railroad Co., 54. Dolder v. Bank of England, 18, 422. 426. Dole V. Wooldredge, 628. TABLE OF CASES. 1107 [befebences aee to pages.] Domestic Bldg. Ass'n v. Nelson, 213. Dominioetti v. Latti, 194. DomvUle v. Berrington, 763. V. Solly, 397. Done V. Allen, 261. Done's Case, 505. Donelson's Adm'rs v. Posey, 151. Donne v. Lewis, 751. Donnell v. Columbian Ins. Co., 615. V. King's Heirs & Devisees, 326. Donnelly v. Bwart, 427. Donovan v. Campion, 59, 60. Doody V. Pierce, 382. Dooley v. Hadden, 515. Doolittle V. Gookin, 697. V. Lewis, 33. Dormer v. Fortescue, 267, 276, 881. Dom V. Farr, 612, 614. V. Fox, 833. V. Geuder, 104. V. Ross, 607. Dorr V. Tremont Nat. Bank, 631, 639. Dorset V. Girder, 840. V. Girdler, 839. Dorsheimer v. Roorback, 23, 24. V. Rorback, 754, 756. Doss V. Tyack, 456, 582, 757. Doud V. Wisconsin, P. & S. Ry. Co., 56. Dougherty v. Morgan's Ex'rs, 990. Doughty v. Somerville & E. R. Co., 516. Douglas V. Butler, 419. v. Douglas, 200. V. Horsfall, 47. V. Merceles, 612. Douglass V. Boardman, 148. V. Rogers, 470. V. Sherman, 916, 917, 918, 928, 934, 941, 948, 1023. V. Snow, 298. Dousman v. Hooe, 737. Dow V. Jewell, 19, 894. Dowell V. Applegate, 264. Downes v. East India Co., 260. Downey v. Lanoy, 110. Downing v. Bacon, 412. v. Cage, 448, 733. V. Spracher, 54. Dows V. City of Chicago, 956. V. McMichael, 310, 316. Dowse V. Coxe, 595. Doyle V. New York & N. B. R. Co. 787 979 Doyle's Petition, 80. Draper v. Draper, 164. V. Gordon, 956. Drayton v. Logan, 801. Drew V. Clemmons, 151. V. Drew, 275, 281, 282, 341. Drewry v. Thacker, 455. Dreyer v. Goldy, 135. Driggs V. Garretson, 303. Dringer v. Receiver of Brie Ry. Co. 1008. Driver v. Fortner, 110, 735. V. White, 191. Drope V. Miller, 630. Drury v. Conner, 658. Dubois v. Hole, 217. Du Bois V. Kirk, 770. Du Boise v. Clark, 214. Dubose, In re, 549, 562. Ducat V. City of Chicago, 30. Duckworth v. TrafCord, 488. Dudgeon v. Watson, 291. Dudley v. Dudley, 642. Dudley v. Eastman, 383. V. McCord, 464. V. Witter, 696. Duffle V. Black, 459. Duguld V. Patterson, 932. Dumraer"v. Chippenham, 67. V. Corporation of Chippenham, 868, 866. Dumond v. Magee, 332. Dumont v. Fry, 586. V. Nicholson, 610. Dunbar v. Conway, 38T. Duncalf v. Blake, 270. Duncan v. Atlantic, M. & O. R. Co., 499. v. King', 630. v. State Bank, 544. Duncan's Heirs v. United States, 385. Dundas v. Dutens, 249, 574. Dundee Mortgage & Trust Inv. Co. v. Nixon, 30. Dunfee v. Childs, 995. Dungan v. Miller, 180. Dungey v. Angove, 813, 817, 821. Dunham v. Dunham, 330. V. Eaton & H. R. Co., 137. V. Gates, 659. V. Jackson, 501, 503, 659. V. Village of Hyde Park, 89. V. Winans, 784, 785. Dunkley v. Van Buren, 391. Dunklin v. Harvey, 1020. Dunlap V. Ingram, 391. v. Newman, 389, 391. Dunlap's Heirs v. Mcllvoy, 1016. Dunn V. Allen, 923, 924. V. Bozarth, 388. V. Clarke, 169, ITO. V. Coates, 854. V. Dunn, 71, 154, 163, 175, 599, 631, 640, 642, 644, 884. V. Keegin, 201, 285, 307, 308, 351. Dunnock v. Dunnock, 329. Dunny v. Filmore, 1002. Dunscomb v. Dunscomb's Bx'rs, 775. Dupont V. Goffie, 510. Duponti V. Mussy, 380. Durant v. Essex Co., 714. Durbin v. Durbin, 757. Durdant v. Redman, 240, 241. Durden v. Cleveland, 655, 656. Durham v. Liddell, 987. Durie v. Blauvelt, 32. Durling v. Hammar, 147, 241, 263. Dursley v. Berkeley, 838, 839, 842. v. Fltzhardinge, 125. Duryee v. Linsheimer, 323, 953. Dutch Church of Freehold v. Smock, 622. Dwight V. Central Vermont R. Co., 254, 281. V. Humphreys, 115. V. Pomeroy, 650. Dyckman v. Kernochan, 444. Dyer v. Martin, 320. Dyott v. Dyott, 228. Dyre v. Sturges, 880. Dyson v. Benson, 259. E. Eade v. Lingood, 684. Eades v. Harris, 64. Eager v. Price, 906, 907, 914, 1033. V. Wiswall, 359, 365, 399, 400, 403. iioa TABLE OF CASES. [REFEBBNCES ABE TO PAGES.] Eagle Iron Works, In re, 483. Bakin v. Hawkins, 241. Earl V. De Hart, 513. Earle v. Art Library Publishing Co. 664, 670. V. Humphrey, 25, 147. V. McCartney, 629. V. Plckin, 130, 138. Earles v. Earles, 586. Earll V. Metropolitan St. Ry. Co., 316. Early Times Dist. Co., v. Zeiger, 595 East India Co. v. Bazett, 642, 645. V. Boddam, 796. V. Campbell, 267. V. Donald, 647, 667. V. Edwards, 818. V. Henchman, 121, 132, 258, 262. V. Naish, 677, 839. Bastburn v. Kirk, 542, 773, 786. Eastman v. Amoskeag Mfg. Co., 386, 389 V. Batoiielder, 941, 942. V. Savings Bank, 142. Easton v. New York & L. B. R. Co., 703, 716. V. State, 552, 566. Baton V. Pennywit, 214. V. Sanders, 739. V. Tillinghast, 654. Eaton's Appeal, 344, 659, 661. Bberly v. Groff, 668. Bbert v. Gerding, 1003. Eckert v. Bauert, 169. Eokford v. DeKay, 859. Eddy V. Lafayette, 27. Ede V. Johnson, 464. Eden v. Bute, 798. Edenborough v. Archbishop of Can- terbury, 778. Edgar v. Buck, 714. V. Clevenger, 893, 901. Edgell V. Smith, 416, 417. Bdgerton v. Toung, 952. Bdgworth v. Swift, 154. Edmonson v. Marshall's Heirs, 1001. Edmunds v. Ackland, 736. Bdney v. King, 102. Bdrington v. AUsbrooks, 117. V. Pridham, 562, 566. Edsell V. Buchanan, 239. Edson V. Cumings, 1006. Edward P. AlUs Co. v. Wlthlacoochee Lumber Co., 263, 264, 427. Edwards, Ex parte, 547. V. Beaird, 712. V. Carroll, 1000. V. CunliflEe, 755. V. Drake, 354. V. Edwards, 238. V. Perryman, 582. V. Sartor, 72, 142. Edwin V. Thomas, 648. Eggleston v. Speke, 654. Bgmont V. Smith, 65. Bgremont v. Cowell, 136, 238. Eidam v. Finnegan, 477. Bidman v. Bowman, 339. Eilenbecker v. District Court of Plym^ outh County, 547, 565. Einstein v. Sohnebly, 119, 134. Bisenmeyer v. Sauter, 606. Elder v. Carter, 227. V. Jones, 62. Elder's Ex'rs v. Harris, 424. Elderkin v. Fitch, 576, 579, 975. Elderton v. Lack, 636. Bldred v. Michigan Ins. Bank, 216. Electrolibration Co. v. Jackson, 134, 309, 583. Elgin Wind Power & Pump Co. v. Nichols' Adm'rs, 310. Eliot V. McCormick, 197. Elk Fork Oil & Gas Co. v. Foster, 484. Elkhart Car Works Co. v. Ellis, 26. BUer V. Bergling, 41. Ellice V. Goodson, 236, 260. V. Roupell, 838, 843, 845, 846. Ellicott V. BUicott, 71. Ellingwood v. Stevenson, 200. Elliot V. Trahern, 380. Elliott V. Balcom, 1009. V. Hayden, 656. V. Lawhead, 210. V. Pell, 727, 728, 954. V. Schuler, 13. V. Sinclair, 503. Ellis V. Baird, 584, V. Ellis, 777. V. King, 727. V. Saul, 326. Ellison's Trust, In re, 378. BUiston V. Hughes, 853. Ellsworth V. Curtis, 69, 374, 376, 861, 882 BUzey v. Lane's Bx'x, 977, 984. Elmendorf v. Delancey, 75, 112, 124. V. Taylor, 37. El Modello Cigar Mfg. Co. v. Gato, 241. Blmslie v. McAulay, 250. Elston V. Drake, 427. Blwell V. Fosdick, 52. Ely V. Early, 639. V. Lowenstein, 66. Blysville Mfg. Co. v. Okisko Co., 651. Blzas V. Blzas, 995. Bmans v. Emans, 142, 147, 154. Emerson v. Berkley, 707. V. Harland, 274. V. Western Union R. Co., 245. Bmery v. Downing, 193, 201. V. Parrott, 751. Emery's Case, 321. Emma Silver Min. Co. v. Emma Sil- ver Min. Co. of New York, 315. Emory v. Keighan, 427. Empire v. Darlington, 171. Empire City Bank, In re, 483. Empire Distilling Co. v. McNulta, 80. Endicott v. Mathis, 540, 543, 544, 570. English V. People, 489. Ennesser v. Hudek, 592. Enochs v. Harrelson, 731, 979, 1000. Enos V. Capps, 19, 198. V. Hunter, 501. Enright v. Amsden, 625. Ensworth v. Lambert, 78, 898. Epler V. Epler, 101. Equitable Life Assur. Soc. v. Laird, 433. V. Patterson, 240. Brlinger v. Boul, 950. Brrington v. Attorney General, 117. Brrissman v. Errissman, 379. Brskine v. Bize, 401. V. Garthshore, 602. Brvin v. Oregon Ry. & Nav. Co., 213. Erwin v. Vint, 199. Esdaile v. Molyneux, 307. v. Stephenson, 764. Espy V. Comer, 306. Essex Paper Co. v. Greacen, 242. Bsterbrook Steel Pen Mfg. Co. v. Ahem, 397. Estes V. Worthington, 294. Etches V. Lance, 504. tabijb of cases. 1109 [BEFBBENCES ABE TO PAGES.] Etowah Min. Co. v. Wills Valley MIn. & Mfg. Co., 427, 483, 581, 974. Eureka Co. v. Edwards, 422. Eureka Vinegar Co. v. Gazette Print- ing Co., 138. Evans v. Backer, 387. V. Bacon, 1007. V. Bagshaw, 415. V. Bioknell,. 667. V. Cassidy, 15. V. Eaton, 686. V. Ellis, 397. V. Evans, 124, 510, 610, 616, 699. V. Huffman, 653. V. Lancaster City St. Ry. Co., 876. V. Staples, 227, 406. V. State Nat. Bank, 466. V. Stokes, 47. V. Tatem, 32. V. "Wells, 714. V. Winston, 651. Evarts v. Becker, 187. Eveland v. Stephenson, 116. Everett v. Winn, 413. Everhart v. Bverhart, 622. Everitt v. Watts, 273, 281. Evertson v. Ogden, Z33. Evory v. Candee, 423. Ewing V. Bailey, 454. V. Blight, 309. V. Winters, 732. Ewing's Heirs v. Handley's Ex'rs, 582. Exchange & Deposit Bank v. Bradley, 77, 202. Exeter College v. Rowland, 147. Exton V. Turner, 644. Eyre v. Dolphin, 311. V. Marsden, 776, 777. v. Shaftsbury, 729. F. Fackler v. Worth, 550. Fadely v. Tomlinson, 540. Faggarty v. Pittman, 481. Fahie v. Lindsay, 821, 824. Fahs V. Roberts, 893. Fairfax's Devisee v. Hunter's Lessee. 245. Fairly v. Freeman, 396. Fall v. Hafter, 236. Fallowes V. Williamson, 917, 918, 921, 924, 925, 933. Famous Mfg. Co. v. Wilcox, 215. Fanning v. Dunham, 128. V. Russell, 631, 634, 639, 642, 643. Fanshawe v. Tracy, 556, 557. Fant V. Miller, 658, 661, 662, 669, 684, 883 Farley v. Blood, 811, 818, 820, 828-830. V. Farley, 861. V. Kittson, 233, 271, 276, 316, 380. Farmers' Bank of Delaware v. Beas- ton, 495. Farmers' Bank of MooresvlUe v. But- terfield, 638. Farmers' Bank of State of Delaware V. Gilpin, 191. Farmers' Loan Co. v. Oregon Pac. R. Co., 755. Farmers' Loan & Trust Co. v. North- ern Pac. R. Co., 495. v. Seymour, 898, 924, 925, 969, 1026. Farmers' Nat. Bank of Bushnell v. Sperling, 83. Farmers' R. Co. v. Reno, O. C. & P. Ry. Co., 516. Farmers' & Mechanics' Bank of Fred- erick County V. Wayman, 75. Farmers' & Mechanics' Bank of Mich- igan V. Bronson, 950. V. Griffith, 409. Farnam v. Brooks, 132. Famsworth v. Agnew, 228. V. Fowler, 533. v. Strasler, 190. Farquharson v. Mabee, 809. Farrand v. Long, 358. Farrar v. Powell, 151. V. Wyatt, 736. Farrell v. McKee, 379. Farson v. City of Sioux City, 81, 143. Farwell v. Great Western Telegraph Co., 1005. Faulconberg v. Peirce, 644, 646. Faulk V. Calloway, 139. Faulkner v. Davis, 50, 54. V. McClure, 24. Faust V. Haas, 639. Fawkes v. Pratt, 75. Fay V. Jewett, 355. Fayerweather v. Ritch, 605. V. Trustees of Hamilton College, 286, 301. Fayerweather Will Cases, 301. Feary v. Stephenson, 899. Feige V. Babeock, 950. Feigley V. Feigley, 657. Felch V. Hooper, 603, 663. Felder v. Davis, 586. Felix V. Patrick, 129. Fell V. Christ's College, 208, 236. Fellers v. Lee, 297. V. Rainey, 1007. Fellows V. Fellows, 76, 528, 536. V. Hall, 201, 266. Fencott v. Clarke, 399. Fenn v. Craig, 40. Fenno v. Sayre, 697. Penton v. Hughes, 65, 250. Fenwicke v. Gibbes, 593. Fergus v. Tinkham, 178, 653. Ferguson v. Kays, 387. ■ V. Kimball, 794. V. Oliver, 213. V. Ross, 164. V. Smith, 164, 459. V. Sutphen, 189. Ferguson's Adm'r v. Teel, 194. Femie v. Young, 635. Ferrar v. Ferrar, 225. Ferrers V. Cherry, 919. Ferrill v. Ferryman, 264. Ferris v. McClure, 276, 330, 423, 951. Ferry v. Clarke, 419. V. Moore, 316. Feuchtwanger v. McCool, 353. Fey V. Fey, 661. Fidelity Ins. & Safe-Deposit Co. v. Shenandoah Iron Co., 608. Fidelity Trust & Safety- Vault Co. v. Mobile St. Ry. Co., 169. Fidelle v. Evans, 580. Field V. Holland, 628, 630, 635, 663, 664, 665, 666. V. Jones, 497, 499. V. Maghee, 62. V. Middlesex Banking Co., 408. V. Oppenstein, 712. V. Schigffielin, 789, 954, 959, 960, 969, 971, -973. V. Village of Western Springs, 545. V. Williamson, 984. 1110 TABLE OF CASES. [BEIEBENCES ABE TO PAGES.] Fiery v. Emmert, 148. Fifleld V. Gorton, 884. Figge V. Eowlen, 460. Finch V. Finch, 865. V. Winchelsea, 418, 921, 925. Findley v. Illnde, 869. Fingal v. «lake, 451. Pinlayson v. Dipscomb, 780, 784, 958, 981, 1038. Ftnley v. Taylor, 996. Finney v. Clark, 173. Finucan v. Kendig, 297. First Baptist Church of Hoboken v. Syms, 53. First Nat. Bank of Albuquerque v. McCleUan, 620. First Nat. Bank of Brattleboro v. West River R. Co., 828, 829. First Nat. Bank of Cumberland v. Parsons, 366. First Nat. BSnk of Joliet v. Illinois Steel Co., 481, 487. First Nat. Bank of Morristown v. Bm- inger, 813. First Nat. Bank of Moscow v. Mar- tin, 469. First Nat. Bank of Plattsburgh v. Post, 387. First Nat. Bank of Plattsmouth v. Woodrum, 782. First Nat. Bank of Sioux City v. Gage, 481. V. Peavey, 43. First Nat. Bank of St. Paul v. Ames, 180. First Nat. Bank of "Washington City V. Ecoleston, 199. Fischer v. Fischer, 172. V. Hayes, 382, 552, 566, 567, 569. Fish V. Miller, 302, 309. Fishback v. State, 535, 562. Fisher v. Board of Trade of Chicago, 512. V. CarroU, 635, 636, 702, 703, 704. V. Holden, 894. V. Moog, 141. V. National Bank of Commerce, 384. V. Stone, 500, 504. Fisler v. Porch, 629. Fitch V. Gray, 907. Fitchett V. Blows, 154. Fitzgerald v. Evans, 137. Fitzgibbon v. Barry, 36. Fitzhugh V. Bveringham, 853. V. Lee, 677, 849. V. MoPherson, 193, 434. Fitzpatrick v. Beatty, 119, 122, 324. V. Rutter, 45. Flack V. Holm, 510. Flagg V. Bonnel, 309, 311, 314, 316. V. Puterbaugh, 387. V. Roberts, 212. Flaherty v. McCormIck, 739. Flake v. Carson, 209. Flanagan v. State Bank, 104. Flanders v. Whittaker, 308. Flandrow v. Hammond, 31. Flavell V. Flavell, 606, 683. Fleece v. Russell, 263. Flelsehman v. Young, 543. Fleming v. Boiling, 720. v. Courtenay, 389, 390. Fletcher v. Holmes, 735. V. Jackson, 894. V. Newark Telephone Co., 35. V. Toilet, 234. Fletcher v. Wilson, 957. Flinn v. Brown, 642. Flint V. Comly, 207, 210, 213, 214. v. Field, 104, 105. Flora V. Rogers, 422. Florence Sewing Machine Co. v. Sin- ger Mfg. Co., 82. Florida Mortgage & Investment Co. v. Finlayson, 344. Florida Southern R. Co. v. Hill, 141. Flowerday v. Collet, 688. Floyd v. Floyd, 697. Fluharty v. Mills, 268. Flynn v. Third Nat. Bank of Detroit, 57. Foley V. Hill, 274, 275, 279, 357, 415. V. Ruley, 266. V. Stone, 550. Follansbee v. Scottish-American Mortgage Co., 956. Fontain v. Ravenel, 12. Fonville v. Monroe, 210. Poote V. Gibbs, 590, 714. Forbes v. Hyde, 215. V. Tuckerman, 192. V. Whitlock, 242. Forbes Lithograph Mfg. Co. v. Win- ter, 459. Ford V. Gardner, 639. Foreman Shoe Co. v. F. M. Lewis & Co., 294. Forman, Ex parte, 761. V. Blake, 474. V. Sticlmey, 1001. Forquer v. Forquer, 189, 754. Forsyth v. Plerson, 170. Port V. Ragusin, 678, 679. Port Payne Bank v. Alabama Sanita- rium, 192. Fort Wayne Electric Corp. v. Frank- lin Electric Light Co., 1020. Foscue V. Foscue, 101. V. Lyon, 444. Poss V. First Nat. Bank of Denver, 812 V. Harbottle, 56. Poster, Ex parte, 520. V. Burem, 932. V. Busteed, 590. V. Cook, 140. V. Dawber, 378. V. Deacon, 895, 897, 1029. V. Donald, 394, 396. V. Goddard, 614, 618, 650. V. Neilson, 245. V. Simmons, 172. Foster's Ex'rs v. Dlckerson, 469. Fougeres v. Jones, 586. Poulds V. Midgley, 847. Fountain v. Caine, 731. Foumier v. Paine, 783. Foumlquet v. Perkins, 705. Fourth Nat. Bank of New Tork v. New Orleans & Carrollton R. Co., 587. Fonts V. Mann, 742. Foutty V. Poar, 421. Fowble V. Kemp, 521. Fowkes V. Chadd, 704. Fowler v. Beckman, 534. V. Doyle, 741. V. Equitable Trust Co., 773. V. Lewis, 324. V. Payne, 613. Fox V. Birch, 395. V. Coon, 326. V. Ford, 630. V. Maokreth, 792, 796. TABLE OF CASES. 1111 [REFEEENOES ABE TO PAGES.] Fraker v. Brazelton, 742, 753. Francis v. Collier, 397. Francklyn v. Cohoun, 760. Prank v. Bruck, 724. V. Humphreys, 645. Franklin v. Beamish, 769. V. Keeler, 360, 625. V. Meyer, B94. Franklin Sav. Bank v. Taylor, 731, 734, 994. Fraser v. Hext, 130, 131. Prazer v. Legare, 264. V. Sypert, 986. Frazier v. Frazier's Ex'rs, 187. V. Swain, 610. Fread v. Fread, 959. Freas v. Jones, 463. lYeebody v. Perry, 395. Freeland v. Johnson, 424. V. South Penn Oil Co., 950, 951. V. Wright, 616. Freelands v. Royall, 346. Freeman v. Alderson, 197. V. Bank, 425. V. Brown, 131. V. Deming, 535. V. Fairlie, 395. V. Michigan State Bank, 425, 427. V. Tatham, 657. V. Warren, 200. V. Wilkerson, 638. Freese v. Swayze, 438, 570. Freidlander v. Pollock, 285. French v. Barton, 585. V. Bellows Palls Sav. Institution, 276, 330. V. Commercial Nat. Bank, 111, 569. V. Dear, 116. V. First Nat. Bank of New Xork City, 69. V. Gapen, 80, 81. V. Gibbs, 595. V. Hay, 201, 433, 892, 909. V. Rainey, 320, 884. V. Roe, 169. V. Shotwell, 276, 281, 313, 411, 724, 733 802 V. Smith & Sons Co., 67. Prere v. Green, 678, 679. Fretz V. Stover, 935, 939. Friedman v. Fennell, 139. Prierson v. Travis, 219. Pries V. Fries, 749, 757. Frietas v. Dos Santos, 121. Priley v. Hendricks, 985. Prink v. King, 753. Frisby v. Ballanoe, 771. Frith V. Lawrence, 624. Frome v. Board of Chosen Freeholders of Warren County, 644. Prow V. De la Vega, 191. Fruit-Cleaning Co. v. Fresno Home Packing Co., 103. Fry V. Rush, 56, 57. Frye v. Bank of Illinois, 741. Prye's Administrators &, Heirs v. Cal- houn County, 168, 675. Fryrear v. Lawrence, 658. Fullager v. Clark, 630. Fuller V. Hodgdon, 683. v. Jackson, 980, 981, 984, 986. V. Knapp, 267, 318, 319, 361. V. McParland, 1000. v. Metropolitan Life Ins. Co., 585 586. V. Missroon, 464. V. Prentice, 692. Fullerton v. Bank of United States, 384, 385. Fulton V. Greacen, 1030, 1032. v. Rosevelt, 19. V. Woodman, 191. Fulton Bank v. Beach, 333, 346, 353, 663. V. New Tork & Sharon Canal Co., 349, 890. V. Sharon Canal Co., 69, 872. Fulton County Sup'rs v. Mississippi & W. R. Co., 330, 332, 349, 352, 432. Furman v. Clark, 543. Fussell V. Silcox, 448. Futzgerald & Mallory Construction Co. V. Fitzgerald, 180, 210. G. Gaby v. Hankins, 644. Gaddis v. Durashy, 464. Gage v. Du Puy, 772. V. Eddy, 385. v. Harbert, 272, 315. V. Kaufman, 127. V. Schmidt, 586. V. Smith, 276. V. Stafford, 19. Gaines v. ErockerhofE, 623. V. Chew, 142, 247, 250. V. City of New Orleans, 608. V. Coney, 600. V. Puenter, 1009. V. Mausseaux, 152, 277. V. New Orleans, 613, 620. V. Relf, 13. Gainsford v. Grammar, 473. Gainty v. Russell, 715. Gait v. Osbaldeston, 879. Galatain v. Brwin, 229, 955, 973. Galbraith v. Neville, 1016. Gale V. Abbot, 516. v. Harby, 410. V. Nickerson, 983. Gall V. Gall, 80, 81. Gallagher v. McBride, 472. V. Roberts, 233, 380. V. Witherington, 772. Galluchat, Ex parte, 482. Galvin v. Palmer, 639. Gamage v. Harris, 588. Gamble v. Bast Saginaw, 714. V. Johnson, 339. Gamewell Fire Alarm Tel. Co., In re, 981, 982, 997. V. Mayor, 358. Gandy v. State, 553, 554, 565. Gannard v. Eslava, 73, 178. Gannon v. Fritz, 387. Gant V. Gant, 350, 570. Gantt V. Cox & Sons Co., 671. Gardiner v. Mason, 401. V. Rowe, 637. Gardiner Sav. Inst. v. Emerson, 818, 830. Gardner, Ex parte, 550. V. Dering, 753, 755, 767, 780, 783. V. Dwelling House Ins. Co., 783, 1002. V. Emerson, 990. V. Field, 623. V. Gardner, 628, 801. V. Hall, 209. V. Mitchell, 711, 785. V. Parker, 776. V. Raisbeck, 300. 1112 TABLE OF CASES. [BEI'BEENCES ABE TO PAGES.] Garlick v. Strong, 240. Garlington v. Copeland, 753. Gamer v. Second Nat. Bank of Prov- idence, 576. Garnum v. Marshal, 164. Garr v. Bright, 65, 66. V. Dra,k6 19 Garratt v. Niblock, 435. Garretson v. Cole, 761. Garrett v. Garrett's Heirs, 667. V. New York Transit & Terminal Co., 300. V. Eicketts, 197. Garriek v. Chamberlain, 714. Garrow v. Carpenter, 670. Garth v. Ward, 913. Gartside v. Isherwood, 750. Gary v. May, 978. V. Northwestern Masonic Aid Ass'n, 823. Gaskell v. Gaskell, 54. Gaskill V. Sine, 382, 697. Gason v. Gamier, 223. Gasper v. Adams, 177. GasS' V. Stinson, 688. Gasson v. Wordsworth, 679. Gaston v. Plum, 36. Gates V. Adams, 325, 379. V. McDaniel, 556, 557. Gault V. Hoag-land, 188, 196. Gaunt V. Froelich, 110. Gay V. Gay, 200. V. Skeen, 241. Gay Mfg. Co. v. Camp, 612, 617. Gayle v. Singleton, 418. Geary v. Sheridan, 193, 727. Geery v. Geery, 760. Gell V. Hayward, 841. Gelpeke v. Milwaukee & H. R. Co, 760. Gelston v. Hoyt, 855, 861. V. RuUman, 538. General Electric Co. v. West Asheville Improvement Co., 57. Genest v. Las Vegas Masonic Bldg. Ass'n, 460. Geney v. Maynard, 706. George v. Nowlan, 989. V. Pilcher, 823. Georges Creek Coal & Iron Co. v. Det- mold, 115. Georgia v. Braislford, 515. Georgia Lumber Co. v. Bissell, 208, 503. Georgia Railroad & Banking Co. v. Milner, 410. Gerard v. Penswick, 406. German v. Machin, 951. German Bank v. American Fire Ins. Co., 213. German Nat. Bank of Chicago v. Kim- ball, 128. Gemon v. Boccaline, 656. Gernt v. Cusack, 122, 131. Getman's Bx'rs v. Beardsley, 774. Getzler v. Saroni, 1002. Giant Powder Co. v. California Power Co., 268. V. California "Vigorit Powder Co., 780, 781, 782, 790, 792. V. Safety Nitro Powder Co., 278, 425. Gibbons' Appeal, 598. Gibbs V. Clagett, 153, 235. V. Davies, 735. V. Gibbs, 821. V. Hooper, 646. V. Mermaud, 502. Gibbs V. Perkinson, 389. Gibby v. Hall, 538. Gibert v. Colt, 500, 503, 504, 509. Gibson v. Burgess, 762. V. Clarke, 395. V. Cranley, 773. V. Crehore, 752. V. Goldthwaite, 814, 815, 820, 821, 822, 825, 829. V. Green's Adm'r, 985. V. Martin, 488. V. Rees, 205, 705. V. Scevengton, 185. V. Tilton, 334. Gidding's Bx'rs v. Green, 33. Giftard v. Hort, 53, 803, 1008. Giftord v. Thom, 214, 246, 774. Gilbert v. Hawles, 576. V. Murphy, 276. V. Thomas, 71. V. Van Arman, 583. Gilchrist v. Buie, 989. V. Helena, H. S. & S. R. Co., 31. Giles V. Eaton, 350. V. Giles, 913. Gilham v. Cairns, 130. Gilkeson v. Knight, 458. Gill v. Barbour, 593. V. Cook, 823. V. Johnson's Adm'rs, 212. Gillespie v. McEwen, 575^ V. White, 454. Glllett V. Hall, 892. V. Robbins, 928. Gillette v. Bate Refrigerating Co., 783. Gillette Herzog Mfg. Co. v. Ashton, 386. Gilliland v. Cullum, 194, 985. Gillmore v. American Cent. Ins. Co., 477, 478. Gilman v. Ketcham, 28. V. New Orleans & S. R. Co., 962. V. Stetson, 176. Gilmer v. Felhour, 955, 966. Gilmore v. Gilmore, 603. V. Patteron, 665. V. Sapp, 170. Girard Insurance & Trust Co. v. Coop- er, 620. Gittings V. Baker, 469, 470. Glascock V. Hays, 880. Glascott V. Lang, 515. Glasner v. Weisberg, 824. Glasscott V. Governor &^ Co. of Cop- per Miners of England, 859, 860, 862. Glassington v. Thwaites, 365, 375, 376. Glay v. People, 533, 534, 554. Glazbrook v. Gillatt, 445. Gleason v. Bisby, 501, 502. Gleaves v. Ferguson, 60S. V. Morrow, 356, 360. Glegg V. Legh, 968. Glenham v. Stutwell, 919, Glenn v. Clapp, 917. V. Clark, 951. V. Dimmock, 783. V. Grover, 663. V. Hebb, 379, 383. V. Liggett, 54. V. Noonan, 782. V. Williams, 54. Glos V. Beckman, 740. V. Randolph, 343, 671. Gloucester, City of, v. Wood, 807. Glover v. Hedges, 794. V. Hembree, 235. V. Jones, 594, 989. Glyn V. Scares, 860, 872. TABLE OF CASES. 1113 [BEFEEENOES ABE TO PAGES.J Goddard v. Harbour, 176. V. Ordway, 782. Godfrey v. Turner, 116. Goebel v. Stevenson, 549. Goelet V. Lansing, 749, 750, 751. Goff V. McBee, 594. V. Price, 963. Gold V. Ryan, 189. Golden Gate Consolidated Hydraulic Min. Co. V. Superior Court of Tuba County, 534. Goldey v. Becker, 123. Goldie V. McDonald, 465. V. Morning News, 211. Goldsmith v. Gilliland, 273, 278. Goooh V. Green, 241, 724. Goodall V. Marshall, 294. Goodhue v. Churchman, 189, 201. Goodier v. Ashton, 729. Goodman v. Benham, 84. Goodnow V. Litchfield, 461.. Goodrich v. Parker, 133, 137, 156, 360, 594. V. Pendleton, 277, 279, 297, 314, 774 V. Thompson, 233, 978. Goodrick v. Shotbolt, 833. Goodwillie v. Millimann, 569. Goodwin V. Bishop, 299, 358. V. Goodwin, 888. V. McGehee, 423, 606, 654. V. Smith, 107. Goodyear v. MoBumey, 426. V. Providence Rubber Co., 629, 642. V. Toby, 269. Goodyere v. Lake, 769. Gordon v. Bertram, 922, 936. V. Gilfoil, 294. V. Gordon, 570, 571, 584, 689, 742, 949. V. Hobart, 603. V. Holland, 700. V. Lewis, 613. V. Plumket, 228. V. Reynolds, 410. V. Rothley, 393. V. Shaw, 326. V. Winston, 527, 532, 541, 546. Gordon's Adm'r v. Ross, 143, 1007, 1008. Gorham v. Gorham, 23, 91. V. Peyton, 172. Gorman v. Banigan, 865. Gormley v. Bunyan, 137. V. Clark, 761. GormuUy & JefEery Mfg. Co. v. Bretz, 108. ' Goss V. Turner, 652. Gotendorf v. Goldschmidt, 219. Gottfried v. Crescent Brewing Co., 624. Gould V. Barnes, 918, 933. V. Sternberg, 1022. V. Tancred, 711. Gouverneur v. Elmendorf, 959, 969. Gove V. Lyford, 894. V. Pettis, 103, 116. Governor of Ulster v. Bishop of Derry, 799. Gower v. Baltinglass, 407. Grace, Ex parte, 566. V. Oakland Bldg. Ass'n, 135. Grady v. Robinson, 339, 671. Grafton v. Brady, 884. Graham v. Bank, 838, 841. V. Dahlonega Gold Min. Co., 151. V. Elmore, 255. V. Mason, 325. Graham v. Skinner, 421, 422, 427. V. Spencer, 216. V. Swayne, 782. V. Tajikersley, 650. Graham's Heirs v. Nelson, 285. Gram v. Stebbins, 120. Grand Lodge, B. of L. F., v. Cramer, 178. Grange Warehouse Ass'n v. Owen, 409. Grant v. Grant, 511. > V. Lookout Mountain Co., 773. V. Phoenix Life Ins. Co., 145, 282, 283. V. Van Schoonhoven, 70, 219. Grattan v. Appleton, 771. Gravenstine's Appeal, 574. Graver v. Faurot, 1007. Graves v. Keaton, 138. V. Niles, 423, 902. Gray v. Brignardello, 451, 751. V. Chaplin, 44. V. Chicago, L & N. R. Co., 555, 556 V. Faris, 657. V. Hays, 263. V. Lewis, 56. V. MoCance, 539. V. Parke, 23. V. Regan, 236, 262. Great Falls Mfg. Co. v. Henry's Adm'r, 588. Great Southern Fireproof Hotel Co. v. Jones, 103. Great Western Ry. Co. v. Birmingham & O. J. Ry. Co., 515. Great Western Tel. Co. v. Purdy, 54, 909. Green v. Carey, 880. V. Charnock, 228. V. Dodge, 238. V. Elbert, 155, 387. V. Elgie, 567. V. Pagan's Distributees, 575. V. Gaskill, 153. V. Griffin, 562. V. Hankinson's Adm'rs, 126. V. Hicks, 698. V. McCarroU, 879. V. McKenney, 75. V. Massle, 712. V. Mumford, 815. V. Pledger, 664. V. Poole, 700. V. Stone, 957. V. Watkins, 807. V. Weaver, 251, 625. V. Winter, 27. Green v. Harris, 302, 425, 631. V. Woodland Ave. & W. S. St. R. Co., 211. Greenleaf v. Leach, 534. V. Queen, 83, 587, 946. Greenman v. Harvey, 166. Greenough v. Gaskell, 322. Greenup v. Rennix, 1016. Greenup's Representatives v. Bacon's Ex'rs, 220. Greenville v. Ormand, 629. Greenwade v. Greenwade, 649. Greenwalt v. Duncan, 961. Greenwich Bank v. Loomis, 895, 976. Greenwood v. Atkinson, 898. V. Churchill, 154, 586. V. Murphy, 166. Greer v. Ferguson, 32. V. Turner, 990. 1114 TABLE OF CASES. [EEFEEENCES ABE TO PAGES.] Greer v. Young, 177. V. Youngs, 179, 180. Gregg V. Brower, 413, 431. V. City of Baltimore, 55. V. Legh, 425. Gregory v. Marychurch, 711. V. Molesworth, 728. V. Pilse, 170, 580, 582, 957. V. Stetson, 35, 39. V. Stillwell, 540. Gregson v. Oswald, 939. Greig v. Russell, 135. Gresham, Ex parte, 786, 792. V. Peterson, 500. Grether v. Cornell's Bx'rs, 354. Grewar v. Henderson, 187. Grey v. Bowman, 324. V. Dickenson, 752, 756. V. Ohio & P. R. Co., 516. Griel v. Buckius, 458, 459. Griells v. Gansell, 686. Grierson v. Harmon, 642. Griffln v. Augusta & K. R. Co., 238- V. Fries, 955. V. Griffln, 974. V. Merrill, 151. V. Spence, 922, 1015. Grifflng v. A. A. Griffing Iron Co., 292, 293 295 Griffith V.' Depew, 365. V. Griffith, 341. V. Security Home Building & Loan Ass'n, 951. V. Vanheythuysan, 85. Griffiths V. HamOton, 250. V. Wood, 330, 346, 352. Grigg V. Gilmer, 215. Griggs V. Detroit & M. Ry. Co., 1015. V. Gear, 978, 987, 994, 1002, 1003. Grim v. Wheeler, 108, 319. Grimes v. Grimes, 235, 585, 986. V. Hllliary, 853. Grimstone v. Carter, 326. Grist V. Forehand, 31. Griswold v. Brock, 186. V. Hazard, 508, 511. V. Hilton, 917. V. Inman, 583. V. Jackson, 521. V. Simmons, 656, 969. Grot) V. Cushman, 187, 203, 739. Grooe v. Field, 193. Gronfler v. Puymirol, 219. Groover v. King, 640. Gross V. George, 129. Groves v. Clarke, 894. V. Grant County Court, 212. V. SenteU, 830. Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 172. Gudger v. Western N. C. R. Co., 11. Guerry v Ferryman, 711, 1002. Guild V. Hull, 642. Guiltoil V. Arthur, 44. GuUett V. Housh, 986. Gunderman v. Gunnison, 751. Gurney v. Tufts, 567. Gusdofer v. Gundy, 733. Guy V. Doak, 480. Guyer v. Wilson, 427. Guyot V. Butts, 711, 785. Guyton v. Terrell, 118. Gwynne v. Edwards, 787. V. Gort, 350. H. Habberton v. Habberton, 742. Haberman v. Kaufer, 426, 742, 957. Hackley v. Mack, 955. Haddock v. Thomllnson, 39, 113. Hadlock v. Williams, 36. Hagar v. Whitmore, 423. Haggerty v. Duane, 393. Haggett V. Welsh, 595. Hagthorp v. Hook's Adm'rs, 281, 319, 321, 434, 671. Hahn v. Huber, 696. Hahnemannian Life Ins. Co. v. Beebe, 29. Haight V. Case, 510. v. Lucia, 552. V. Morris Aqueduct, 671. Hailman v. Buckmaster, 295. Haines v. Haines, 549, 718. Hair Co. v. Daily, 358. Halbert v. Alford, 447. Halderman v. Halderman, 187. Hale V. Continental Life Ins. Co., 186. v. Hale, 49, 50, 51, 54. V. Harden, 29, 54, 55. V. Pack's Ex'rs, 789. V. Tyler, 29. V. Wharton, 180. Hales V. Sutton, 168. Halgate v. Eaton, 722. Hall, Ex parte, 691. V. Baldwin, 828. V. Bodily, 341. V. Calvert, 960. V. Chapman, 585. V. Clagett, 382. V. Fullerton, 306. V. Hall, 916. V. Hoddesdon, 685, 846, 868. V. Huff, 979. V. Lamb, 198. V. Laver, 574. V. Maltby, 138. V. McPherson, 576. V. Pegram, 708. V. Smith, 919. V. Stout, 838, 850. V. Waddill, 982, 983. V. Wood, 339, 341. Haller v. Clark, 614. Hallett V. Hallett, 35, 37, 43, 407. Hallock, In re, 519. Halsey v. Goddard, 152. Halstead v. Manning, Bowman & Co., 207. V. Shepard, 296. Halsted v. Forest Hill Co., 782, 977, 989. V. Meeker's Ex'rs, 735. Hambleton v. Rhind, 824. Hamersley v. Wyckoft, 521. Hamersly v. Lambert, 676, 709, 710. Hamilton v. Glenn, 54. V. Hamilton, 771, 776. v. Houghton, 1016, 1017. V. Marks, 816. V. State, 529. V. Whitridge, 538. V. Wood, 880. Hammel, In re, 567. Hammer v. Kaufman, 397. Hammersley v. Parker, 558. Hammond v. Hammond, 511, 543. V. Michigan State Bank, 146. V. Place, 410, 414, 757. v. Stewart, 691. TABLE OF CASES. lllS [befeeences aee to pages.] Hampson v. Brandwood, 776. V. Hampson, 644, 645, 801. V. Quayle, 381. Hampton v. Coddington, 115. Hanby's Adm'r v. Henrltze's Adm'r, 414. Hanchett v. Blair, 670. Hancock v. Carlton, 312. V. Winans, 467. Hancock Nat. Bank v. Famum, 55. Hand v. Hand, 204. V. Savannah & C. K. Co., 774. Handley v. Stutz, 43. Handy v. Insurance Co., 210. V. Scott, 620. Hanford v. McNair, 202. V. Storie, 578. Hanington v. Du Chatel, 518. Hankey v. Morris, 536. Hankin v. Middleditch, 679. Hankwltz v. Ooarrel, 786. Hann v. Barnegat & Long Branch Im- provement Co., 607. Hannah v. Baylor, 469. V. Carrington, 379. Hannahan v. NichoHs, 502. Hannam v. South London Water Works Co., 589. Hannas v. Hannas, 77, 170. V. Hawk, 328. Hannum v. Molnturf, 309, 311. Hanserd v. Gray, 410. Harback v. Gear, 987, 1003. Hard v. Summers, 539. Hardeman v. Harris, 320. Hardin v. Boyd, 141, 409, , 416. Harding v. American Glucose Co., 236. v. Cobb, 296. v. Crosby, 67. v. Bgin, 237. v. Fuller, 629. v. Handy, 104, 612, 616. V. Harding, 601. Hardman v. BUames, 401-403. Hards v. Burton, 592. Hardt v. Liberty Hill Consolidated Mining & Water Co., 541. Hardwick v. Bassett, 697. Hardwood v. Fisher, 752. Hardy, Ex parte, 571, 572. V. Beaty, 464. V. Reeves, 247, 297. V. Summers, 539. Hare v. Collins, 405. V. Rose, 776. Hargraves v. Lewis, 978. V. Miller's Adm'x, 652. Hargrove v. Martin, 191. Haring v. KaufCman, 532. Harker, Ex parte, 500, 503. Harkins, Ex parte, 850. Harkness v. Hyde, 163, 171, 178. Harland v. Bankers' & Merchants' Telegraph Co., 234. Harley v. Sanitary District of Chicago, 329 Harman v. Lewis, 783, 788. Harmer v. Gwynne, 651. Harmon v. Campbell, 189. Harmood v. Oglander, 716. Harney v. Morton, 761. Harpending v. Reformed Protestant Dutch Church, 297. Harper v. Holman, 144, 145. Harrell v. Mitchell, 622. Harries v. Johnson, 938. Harriet, The, 468. Harrington v. Becker, 922, 942. Hammond v. McLean, 242. V. Wofford, 177. Harris v. Brown, 444. V. Burris, 388. v. Collins, 638. V. Cornell, 327. V. Deitrich, 204. V. Galbraith, 586, 859. V. Hanie, 984. V. Hardy, 510., V. Harris, 968. V. Hines, 582. V. Ingledew, 309. V. James, 353. V. Lester, 457, 461. V. Pollard, 933, 934, 938. V. Williams, 885. V. Youman, 729, .730. Harrison v. Farrington, 285, 303. V. Gardner, 678. V. Hogg, 243. V. McMennomy, 794. V. Morton, 208. V. Nixon, 650. V. Perea, 142, 773, 774. V. Ridley, 924, ,933, 1024, 1025. V. Rumsey, 733, 786, 802. V. Simons, 751, 917. V. State, 673. V. Wanton's Ex'r, 728. Hart V. Boyd, 141. V. Clark, 537. V. Lindsay, 201. V. Livermore Foundry & Machine Co., 30. Hart v. McKeen, 139. V. Small, 190, 437, 706. V. TenEyck, 649, 657, 661, 673. Hartfield v. Brown, 738. Hartford Fire Ins. Co. v. Bonner Mer- cantile Co., 149. Hartley's Appeal, 658. Hartman v. Evans, 620. Hartshorn v. Inhabitants of South Reading, 126. Hartson v. Davenport, 411. Hartwell v. Blocker, 88, 119, 121. Harvey v. Cooke, 700. V. East India Co., 184. V. Kelly, 133. V. Mathew, 259. V. Richmond & M. Ry. Co., 103. Harwood v. Cincinnati & C. A. L. R. Co., 1008. V. Cincinnati & C. R. Co., 128. V. Fisher, 752. V. Jones, 665. Hasbrouck v. Shuster, 887. Haskell v. Bailey, 297, 306. V. Brown, 409, 423. V. Haskell, 401. V. Hilton, 249. V. Raoul, 720., V. Waties, 234. Haskins v. Burr, 864. V. Lombard, 391. V. Rose, 1006. Haslet V. Street, 215. Hasseltine v. Brickey, 816. Hastings v. Belden, 66, 240. V. Columbus, 163. V. Cropper, 811. Hatch V. Eustaphieve, 115, 332. V. Indianapolis & S. R. Co., 602, 608. v. Spofford, 294. V. , 394. 1116 TABLE OF CASES. [befebences ase to pages.] Hatcher's Adm'r v. Hatcher's Heirs, 980, 981, 995. Hathaway v. Foy, 813. V. Scott, 445, 464. Haughy v. Strang, 586. Haulenbeck v. Cronkright, 386. Haverhill Iron Works Co. v. Hale, 160. Hawes v. Bamford, 460. V. Oakland, 56, 57. Hawker v. Buncombe, 756. Hawkins v. Crook, 182. V. Day, 622. V. Glenn, 55. V. Hunt, 117, 521. V. Kelly, 250. V. Pearson, 417. V. Peirce, 174. Hawley v. Bennett, 554, 923, 936. V. Cramer, 325. V. Donnelly, 460. V. Simons, 596. V. Wolverton, 156, 360, 463. Haworth v. Huling, 623. Hayes v. Dayton, 144, 237. V. Hammond, 614, 615, 624. V. Lequin, 348. V. Shields, 180. Hayes' Appeal, 146. Hayne v. Hayne, 951, 961. Hays V. Heatherly, 266. V. Lequin, 349. V. May's Heirs, 718. V. Miles, 397. V. Thomae, 917. Haytian Republic, The, 293. Hayward v. Kinney, 761. Hayzlett v. McMillan, 540. Hazard v. Durant, 39, 57, 73, 190, 198, 271, 277, 571, 751. V. Hodges, 821. Hazleton Tripod-Boiler Co. v. Citizens' St. Ry. Co., 896, 905, 1029, 1030, 1031. Head v. Head, 645. V. Head's Adm'rs, 711. Heald v. Rhind, 828. Heard v. March, 927. Heartt v. Coming, 270, 275, 282, 286, 312, 313, 341. Heath v. Erie Ry. Co., 418. V. Percival, 40. Heath's Adm'r v. Ashley's Adm'r, 730. Heathcote v. Edwards, 435, 724. Heachmer v. Gilligan, 811, 821, 823. Hecht V. Feldman, 212. Hedges v. Cardonnel, 796. V. Norris, 101. Heeman v. Midland, 403. Heeren v. Kitson, 411. Heermans v. Montague, 787-789, 984, 998. HefEron v. Knickerbocker, 894. V. Rice, 118. Hefling v. "Van Zandt, 202. Hefner v. Northwestern Life Ins. Co., 153, 154. Heggle V. Hill, 151. Heines v. Day, 924. Heiskell v. Galbraith, 989. Hellman v. Schneider, 814. Helms V. Rizer, 1015. Heming v. English, 468, 471. Hemingway v. Stansell, 917. Hemiup, In re, 528, 610, 615, 616. Hemp V. Warren, 178. Hempstead v. Watkins, 389. Henck v. Todhunter, 213. Henderson v. Chaires, 275. Henderson v. Cook, 996. V. Harness, 622. V. Herrod, 10. V. Huey, 603. V. Mathews, 235. V. Sherman, 86. Hendon v. Morris, 144. Hendricks v. McLean, 730. V. Robinson, 753. Hendrickson v. Bradley, 54, 351, 364. V. Wallace's Bx'r, 71, 85. V. Winne, 342. Hendryx v. Perkins, 977, 988, 1005, 1007, 1009. Hendy v. Golden State & Miners' Iron Works, 329. Henley v. Philips, 775. V. Stone, 307. Henrietta Mining & Milling Co. v. Johnson, 166. Henry v. Gregory, 115. V. Henry, 156. V. Hilliard, 448. V. Seager, 189. V. Travelers' Ins. Co., 694, 890. V. Watson, 542. Henry County Sup'rs v. Winnebago Swamp Drainage Co., 128, 131. Henshaw, Ex parte, 566. Hentz V. Delta Bank, 322. Hepburn v. Durand, 320. V. Lordan, 516. Hepworth v. Heslop, 637. Herbert v. Rowles, 1005. Hercules Iron Works v. Elgin, J. & E. Ry. Co., 213. Herman v. Michel, 478. Herndon v. Ridgway, 169. Herrick v. Belknap, 610. Herring v. Tylee, 565. V. WoodhuU, 188. Herrington v. Cassem, 563. V. Herrington, 544. Hershy v. Baer, 756. Hertell v. Van Buren, 329. Hess V. Calender, 629. V. Cole, 197. V. Voss, 221, 596. Hessenbruch v. Markle, 292. Hester v. Weston, 236. Heston v. Heston, 1801 Hewatson v. Tookey, 859. Hewett v. Adams, 427. Hewlett V. Pilcher, 638. Heyer v. Bromberg, 139. V. Deaves, 762. Heyman v. Uhlman, 212, 351. Heywood v. Miner, 623. Hlbernia Nat. Bank v. Lacombe, 496. Hiohens v. Congreve, 44. Hickey v. Stone, 585. Hickman v. Hichman, 843. Hicks V. Otto, 789. v. Raincock, 234. V. Wrench, 775. Hickson v. Aylward, 966. V. Bryan, 664. Hide V. Haywood, 777. V. Holmes, 406. Hiem v. Mill, 735. Higbie v. Brown, 423. V. Edgarton, 455, 456. Higgins V. Mills, 710, 795. V. , 396. High V. Batte, 292, 304, 327, 329. Hlghfleld V. Peake, 685. Highstone v. Franks, 327. TABLE OP CASES. 1117 [befeeences aee to pages.] Hightower v. Mustain, 255. Higinbotham v. Bumet, 241, 858. HUdyard v. Cressy, 279, 281, 307, 310, 313, 871. Hill V. Bissel, 571. V. Bush, 380. V. Crary, 881. V. Gordon, 173. V. Harriman, 140. V. Hoare, 923. V. Kensington Com'rs, 43. V. Mendenhall, 158. V. Phelps, 977, 978, 980, 981, 988, 1039. V. Klchards, 591. V. Rimell, 208, 439. V. Spencer, 103. V. Tarbel, 528. HlUeary v. Crow, 628. HlUer V. Gotten, 541. V. Cotton, 263. Hilliker v. Hathorne, 549. Hills V. Putnam, 41. Hilton V. Granville, 543. V. Guyott, 281. Hilts V. Ladd, 979. Hinchliffe v. Gracie, 182. Hinohly v. Machine, 384. Hinchman v. Ballard, 268. Hlndman v. Taylor, 879. Hine v. City of New Haven, 586. V. New York Elevated R. Co., 470. Hlnes V. Rawson, 535. V. Spruill, 823. V. Pickett, 784, 785. V. Ralston, 515, 629. Hinton v. Bland's Adm'r, 24. Hirst, In re, 650. Hitch v. Penhy, 990, 1005. Hitchcock V. Tremaine, 715. Hitchcox V. Hitchcox, 83. Hitsman v. Garrard, 464. Hoagland v. Titus, 543. Hoare v. Johnstone, 604, 606. V. Parker, 314. Hobart v. Andrews, 63. V. Bennett, 174. Hobhouse v. Courtney, 168, 170. Hobson V Emanuel, 209. Hoby V. Hitchcock, 228. Hochlander v. Hochlander, 173. Hodder v. Kentucky & G. E. Ry. Co., 426. Hodges V. Davis, 783. V. Frazler, 211. V. Kimball, 33. V. McDuffi, 786. V. Mullikin, 980, 996, 1000. V. New England Screw Co., 791. V. Salomons, 367, 626. V. Wise, 695. Hodgkin v. Longden, 876. Hodgson V. Butterfleld, 362. Hodson V. Ball, 889, 1030. Hoe V. Scott, 612. Hoes V. Van Alystyne, 216. Hoff V. Burd, 342. Hoffman v. Knox, 986. V. Livingston, 444. V. Pearson, 987. V. Sohoyer, 469. Hoffman v. Tredwell, 919. Hogan V. Ashton, 425. v. Davis, 1003, 1015; V. Smith, 582. Hoge v. Junkin, 267. Hogencamp v. Aokerman, 320. Hogg V. Hoag, 949, 956. Hoggart V. Cutts, 811. Hoghton, In re, 732. Hoitt V. Burleigh, 630. Holbrook V. Prettyman, 960. Holcomb V. Cornish, 555. V. Jackson, 549. Holcombe v. Holcombe's Bx'rs, 707, 971. Holden v. Holden, 110, 111. Holder v. Aultman, 31. Holdrldge v. Bailey, 707. Holkirk v. Holkirk, 579. Holland v. Challen, 13. V. Rogers, 653. V. Trotter, 418, 437. Holley V. Young, 472. Hollifleld V. Wrightsville & T. R. Co., 25. HoUingshead's Case, 934, 943. Hollingsworth v. Duane, 567, 558, 565. v. McDonald, 748, 976, 983, 996, 1038. Hollingsworth & Vose Co. v. Foxbor- ough Water-Supply Dist., 681. Holllns V. Mallard, 542. V. St. Louis & C. Ry. Co., 158. Hollls V. Whiteing, 879. HoUister v. Barkley, 537. V. Stewart, 294. HoUoway v. Moore, 191. Holly v. Powell, 371. Holman v. City of Austin, 572. V. Holman, 585. v. Patterson's Heirs, 135. Holmes v. Clifford, 383. V. Holmes, 620. V. Morgan, 179. V. Remsen, 312. V. Sherwood, 869. V. Swilliams, 583. Holt V. Burleigh, 796. V. Daniels, 230, 231. V. Holt, 611, 613. V. Taylor, 622. Holthan v. Holthan, 663. Holton V. Guinn, 325, 334, 339. V. Newcastle Ry. Co., 57. Holworthy v. Mortlock, 706. Home Ins. Co. of New York v. Nobles, 411. V. Virginia- Carolina Chemical Co., 148. Home Insurance & Banking Co. v. Myer, 653. Home Land & Cattle Co. v. McNa- mara, 620. Home Life Ins. Co. of New York v. Caulk, 816-818, 820, 826, 833. Home Min. Co. v. MoKibben, 57. Hone v. Dillon, 915. v. Moody, 520. Honore v. CoUmesnil, 740. Hony V. Hony, 279. Hoobler v. Hoobler, 631, 639. Hood V. Inman, 132, 136, 346. v. Morgan, 104, 122. V. Phillips, 574. V. Pimm, 707, 709, 795. Hoofstitler v. Hostetter, 427, 601. Hook V. Brooks, 418. v. Dorman, 116, 240, 869. V. Richeson, 950, 952. V. Whitlock, 310. Hooks V. Smith, 18. Hooper v. Cooke, 688. V. Savannah & M. R. Co., 585. 1118 TABLE OF CASES. [EEFEBENCES ABE TO PAGES.] Hooper V. Strahan, 122. V. Tonge, 761. Hop Bitters Mfg. Co. v. Warner, 754. Hope V. Allis, 655. V. BrinckerhofE, 414, 890. V. Hope, 627, 702. Hopkins v. Burcli, 177. V. Lee, 954. V. McEldery, 393. V. Medley, 319. V. Roseclare Lead Co., 418. V. Stump, 684. Hopper V. Hopper, 31, 325. Hoppock V. Cray, 77. V. Gray, 887. Hopson V. Harrell, 66. Hord V. Marshall, 919. Hord's Adm'r v. Colbert, 629. Horn V. Detroit Dry Dock Co., 316. Hornby v. Pemberton, 403. Homer v. Doe, 221. V. Harris' Bx'r, 630, 631. • Homor v. Henning, 43. Horsburg v. Baker, 251, 918. Horsley v. Fawcett, 51. Horton v. Baptist Church & Soc. in Chester, 829. V. Meroier, 953. V. Moseley, 866. Horwood V. Schmedes, 922, 923, 933. Hosack V. Rogers, 394, 759, 775. Hostetter Co. v. B. G. Lyons Co., 270, 276, 277, 278. Hough V. Martin, 866. V. Williams, 605. Houghton V. Kneeland, 83. V. Reynolds, 105, 120, 121, 125. Houlditch V. Marquis of Donegal, 1024. House V. Mullen, 588. Houseworth's Adm'r v. Hendrickson, 511. Houston V. Maddux, 956. V. Sadler, 391. Hovenden v. Annesley, 129, 233. Hovey v. Elliott, 540, 570, 571. How V. Best, 861. Howard v. Bond, 761. V. Braithwaite, 637. V. Bugbee, 575. V. Corey, 36. V. Howard, 630. y. Milwaukee & St. P. Ry. Co., 760. V. Moot, 138. V. Pensacola & A. R. Co., 205. V. Rhodes, 777. V. Scott, 620. Howarth v. Lombard, 29, 55. Howe V. Anderson, 158. V. Grey, 682. V. Lawrence, 468. V. Robins, 112. V. Russell, 423, 603, 620, 623. V. South Park Com'rs, 950. V. WlUard, 208. Howell V. Albany City Ins. Co., 174. V. Ashmore, 861, 862. V. Chicago & N. W. Ry. Co., 30. V. Merrill, 139. V. Waldron, 293. Howland v. Ralph, 550. Howlett V. Wilbraham, 24. Howse V. Chapman, 777. Hoxey v. Carey, 351, 583, 584. Hoxie V. Carr, 78, 894, 895. V. Scott, 351. Hoyle V. Dlvesay, 695. Hoyt V. Hoyt, 122. V. Macon, 211. V. Smith, 416, 420. V. Sprague, 31. Hubbard v. Manhattan Trust Co., 84, 126, 129. V. Turner, 953. V. Urton, 110. Hubbell V. Lankenau, 934. Hubble V. Read, 722. Huddleston v. Briscoe, 702. Hudson V. Husdon, 754, 956, 968. V. Kline, 712. V. Plets, 529. V. Randolph, 282, 410. Hudsons V. Hudsons' Adm'r, 297. Huebner v. Farmers' Ins. Co., 388. Huet V. Say, 918, 948, 1026. Huff V. Thrash, 144. Huffman v. Hummer, 408, 409, 420, 422, 428, 544. Huggins V. York Buildings Co., 924. Hughes, In re, 550. V. Blackwell, 109. V. Blake, 308, 310, 380. V. Bloomer, 424. V. Came, 893. V. Fades, 707. V. Garner, 799. V. Jackson, 386. V. Jones, 785, 791. V. Lapice, 176. V. People, 561. V. Ryan, 501, 503. V. United States, 300, 590. Hughey v. Bratton, 955. Hughs V. Jones, 981. V. Washington, 739, 742, 747, 748, 750, 752, 781, 782, 786. Hughson V. People, 569. Hull V. Peer, 328. Hullett V. King of Spain, 17. Hume V. Bowie, 386. Humes v. Scruggs, 649. Humphrey, Ex parte, 692. V. Newhall, 209. Humphreys v. Butler, 297. V. Hollis, 704, 926. V. Humphreys, 40, 414. V. Ingledon, 928, 933. V. Stafford, 719, 720. V. Tate, 126. Hungate v. Reynolds, 966. Hungerford v. Cushing, 78, 127, 139. Hunley v. Hunley, 84. Hunt V. Gookin, 318. V. Holland, 430. V. Lever, 169. V. Penrice, 280. V. Rousmaniere, 263. V. Rousmanier's Adm'ra, 651. V. Sain, 512, 513. V. Wallis, 201, 449, 466. V. West Jersey Traction Co., 310, 316. V. Wickliffe, 418, 587. Hunter v. Daniel, 131. V. Marlboro, 786. V. Stonebumer, 176. V. Union Life Ins. Co., 387. V. Wallace, 636. Huntington v. Saunders, 870. Hurd V. Case, 956, 957. V. City of Elizabeth, 29. V. Everett, 414, 892. V. Goodrich, 612, 754. V. Haynes, 268. TABLE OF CASES. 1119 [EEFEEENCES ABE TO PAGES.] Hurdle v. Leath, 610. Hurford v. Baker, 211. Hurlburd v. I'reelove, 786. Hurlbut V. Britain, 316. Hurst, Ex parte, 180. Hurt V. Jones, 416, 714. V. Long, 187, 979, 982, 986, 994. Huson V. Wallace, 728. Huston V. McClarty's Heirs, 124, 587. Hutchcraft v. Shrout's Heirs, 74. Hutohins v. Hope, 539. Hutchinson v. Reed, 375. V. Tindall, 343. V. Van Voorhis, 344, 345. Hutton V. Bancroft & Sons Co., 56. Huyck V. Bailey, 697. Hyde v. Forster, 160, 939, 940. V. Lamberson, 989, 1001. Hyer v. Little, 662. Hylton V. Morgan, 704. Hyman v. Cameron, 79. V. Smith, 783, 1022. Hyndman v. Hyndman, 706. Hyslop V. Hoppock, 168. I. lasigi. In re, 178. Iglehart v. Armiger, 734. V. Blerce, 28. V. Miller, 266. Illinois Cent. E. Co. v. Haskins, 385. Illinois Land & Loan Co. v. Speyer, 237. Illinois Steel Co. v. San Antonio & G. S. Ry. Co., 165. Independent Medical College v. Zeig- ler, 697. India Rubber Co. v. C. J. Smith & Sons Co., 474. India Rubber Comb Co. v. Phelps, 423. Indiana Southern R. Co. v. Liverpool, L. & G. Ins. Co., 958. Indianapolis Gas Co. v. City of In- dianapolis, 853, 861, 885, 886. Ingalls V. Rowell, 129. IngersoU v. IngersoU, 202. V. Mangam, 219. Ingles V. Straus, 639. Ingraham v. People, 553. Inman v. Hodgson, 403. Innes v. Jackson, 700. V. Lansing, 293. Inness v. Lansing, 578. Insurance Co. v. Brune's Assignee, 293. V. Corbin, 830. Insurance Co. of North America v. Svendsen, 408, 419. International Bank v. Sherman, 420. Interstate Land Co. v. Maxwell Land Grant Co., 238. Investor Pub. Co. of Massachusetts v. Dobinson, 120. Iowa Cent. Ry. Co. v. Iowa, 629. Ireland, Bx parte, 555. V. Kelly, 811, 815. Irving V. De Kay, 959. v. Thompson, 872. V. Vlana, 359. Irwin V. Bailey, 866. V. Dyke, 297. Isham V. Miller, 374, 375, 377, 378. Isnard v. Cazeaux, 456. Ivey V. McKinnon, 1002. Izard v. Bodine, 603. J. I. Case Plow Works v. Pinks, 27. Jacks V. Adair, 983, 989. Jackson, In re, 543. V. Ashton, 103, 247, 342. V. Grant, 956. V. Jacksen, 448. V. Jackson, 539, 624, 988, 989. V. Kraft, 361. V. Lee, 794. V. Petrie, 504. V. Pownal, 589. V. Rowe, 425. V. Sedgwick, 226. V. Simmons, 127, 961, 974. V. 'Smith, 557, 561. V. Strong, 680, 871. V. , 452. Jackson's Assignees v. Cutright, 424. Jacob V. Hall, 365. V. Lucas, 85. Jacobson v. Blackhurst, 816. V. Hosmer, ISO. Jacoby v. Goetter, 540, 570. Jacoway v. McGarrah, 577. Jaffrey v. Brown, 620. James v. Brooks, 631. V. McKemon, 108, 415, 650. v. Sams, 825. Jameson's Adm'x v. Deshields, 418. Janes v. Williams, 130. Janson v. Solarte, 860. Jaques v. Trustees of Methodist Epis- copal Church in New York, 624, 720. Jarmon v. Wiswall, 755, 756. Jarrett v. Jarrett, 629. Jarvis v. Crozier, 18, 19, 728. V. Martin's Adm'r, 128. v. Palmer, 264, 313, 314. Jasper v. Hamilton, 132. Jetterson v. Dawson, 285. v. Hamilton, 520. Jefferson County v. Ferguson, 410, 907. Jeffreys v. Tarlborough, 610. Jenckes, In re, 682. Jenkins, Ex parte, 761. V. Bell, 578. V. Brian t, 610. V. Eldredge, 784, 789, 795, 889, 890, 891, 984, 1020. V. Freyer, 77, 926, 927. V. Greenbaum, 324, 328. V. International Bank, 330, 898, 949, 951. V. Parkinson, 502. V. Pepoon, 295. V. Prewitt, 990, 1000. Jenkins' Distributees v. Jenkins' Adm'r, 220. Jenks V. Smith, 390. Jennings v. Bloomfleld, 25. v. Nugent, 829, 830. V. Pearce, 411. V. Simpson, 742. V. Springs, 418. V. Webster, 951. Jenour v. Jenour, 742. Jensen v. Norton, 515. Jepson V. Greenaway, 677, 849. Jerdein v. Bright, 158, 574. Jernee v. Jernee, 567. Jerningham v. Glass, 511. Jerome v. Jerome, 116, 839, 841, 842, 843. v. Seymour, 581. Jervis v. White, 393, 394, 636. 1120 TABLE OF CASES. [beteeences aee to pages.] Jesson V. Brewer, 751. Jessup V. Illinois Cent. H. Co., 35, 58, 81, 583, 591. Jesup V. Hill, 511. Jesus College v. Gibbs, 325. Jewell V. Rock River Paper Co., 612, 619. Jewett V. Albany City Bank, 467. V. Belden, 880, 883. V. Dringer, 536. Jeyes v. Foreman, 438. Jooelyn v. White, 266. Johnson v. Anderson, 135. V. Aston, 395, 396. V. Atkinson, 813. V. Brown, 265. V. Clendenin, 500, 509. V. Common Council of Dadeville, 310. V. Curtis, 131. V. Donnell, 189. V. Everett, 718, 722. V. Freer, 973. V. Gallegos, 622. V. Glover, 428. V. Harmon, 627, 639, 641, 643. V. Johnson, 132, 166. V. Martin, 494. V. Meyer, 625, 770. V. Miller, 582. V. Northey, 1015, 1016. V. Peck, 919, 926. V. Person, 600. V. Pinney, 200, 350, 438. V. Powers, 32, 129. V. Rankin, 49. V. Richardson, 657. V. Roberts, 128, 233, 238. V. St. Louis, I. M. & S. Ry. Co., 1013. V. Sukeley, 395. V Superior Court of City & Coun- ty of San Francisco, 571. V. Swart, 598. V. Taber, 771. V. Thomas, 751, 919. V. Tucker, 345, 368. V. Waterhouse, 19. V. Waters, 1009. V. Wheelock, 267. V. Worthy, 410. Johnson's Appeal, 131. tt„i^„ Johnson Railroad Signal Co. v. Union Switch & Signal Co., 169. Johnston v. Bloomer, 456, 599. V. Corey, 539. V. Grosvenor, 427. v. Kelly, 189. V. Shaw, 586. Joice V. Taylor, 649. JoUifEe V. Bast, 776, 777. Jolly V. Arbuthnot, 375. V. Carter, 356. Jones V. Abraham, 661, 667. V. Alephsin, 511. V. Andrews, 210. V. Belt, 741. V. Bradshaw, 865. V. Brlttan, 382, 587. V. Browse, 497. V. Cowles, 135. V. Cunningham, 883. V. Davenport, 734, 754. V. Del Rio, 43, 44, 73. V. Donithorne, 680. V. Everett Land Co., 212. V. Foster, 150. Jones V. Frost, 40, 243, 247. V. Fulghum, 208, 236. V. Galbraith, 662. V. Harris, 164. V. Hart's Bx'rs, 63. V. Hawkins, 340. V. Hillis, 309, 426, 970. V. Hooper, 760, 761. V. Howells, 898. V. Janes, 737. V. Jones, 121, 247, 630, 680, 700, 701, 887, 888, 889, 894, 898, 899, 925. V. Kennicott, 427, 505. V. Kenrick, 999. V. Knauss, 343. V. Lewis, 226. V. Lloyd, 23. V. Magill, 539. V. Mason, 697, 771. V. Massey, 132, 604. V. McPhillips, 420. V. Minogue, 740. V. Myers, 126. V. Orum, 215. V. Pugh, 322. V. Purefoy, 711. V. Quinnlpiack Bank, 70. V. Reid, 145. V. Roberts, 435, 438. V. Segueira, 295. V. Sherwood, 884. V. Slauson, 129. V. Smith, 301, 957, 958. V. Strafford, 236, 293, 389, 881. V. Thacker, 974. V. TumbuU, 446. V. Turner, 591. V. Wiggins, 323. V. Wing, 339, 340. Jones' Heirs v. Perry, 658. Jopling V. Stuart, 205, 414. Jopp V. Wood, 787. Jordan, Ex parte, 80, 617. V. Jordan, 186, 419, 593. Josey V. Rogers, 959. Jourolmon V. Ewing, 978, 980. Joyce V. Barker, 389. V. Joyce, 166. Judd V. Seaver, 128, 663, 712. Judson V. Gage, 451. V. Stephens, 234, 977, 979. Judy V. Kelley, 32. June V. Myers, 610. Jupp V. Geering, 919, 920. Justices of Inferior Court of Pike County V. GriiHn & West Point Plank Road Co., 653. K. Kadish v. Chicago Co-Operative Brew- ing Ass'n, 773. Kaehler v. Dobberpuhl, 438, 540. Kahn v. Weinlander, 384. Kain v. Ross, 584. Kalkaska Mfg. Co. v. Thomas, 202. Kanape v. Reeves, 214. Kanawha Lodge v. Swann, 957. Kanawha Valley Bank v. Wilson, 124. Kane v. Schuylkill Fire Ins. Co., 667, 671. V. Whittick, 720, 725, 802. Kane County Sup'rs v. Herrington, 375. Kansas Loan & Trust Co. v. Electric Railway, Light & Power Co. of Se- dalla, 608. TABLE OF CASES. 1121 [befebenoks aee to pages.] Kauffman v. Kennedy, 179. Kauter v. Enty, 209. Kay V. Marshall, 278. Keaoh v. Hamilton, 119. Kearney, Ex parte, 553, 571, 572. V. Andrews, 126. Kearny v. Jeffries, 864, 867. Keaton v^ McGwier, 671. Kedzie v. West Chicago Park Com'rs, 137. Keeler v. Keeler, 175. Keen v. Jordan, 111, 116. V. Maple Shade Land & Improve- ment Co., 122. Keene v. Wheatley, 307. Keens v. Robertson, 468. Keep V. Crawford, 78, 916. Kehoe v. Patton, 390. Kelffer v. Barney, 194. Keighler v. "Ward, 182, 759. Kelghley v. Brown, 474. Keil V. West, 201. Keith V. Henkleman, 629. Keithley v. Keithley, 646. Kellam v. Sayre, 62. Kellar's Ex'rs v. Beelor, 927. Keller v. Stolzenbach, 300. Kelley v. Boettcher, 145, 155, 156, 853. V. MoKinney, 785. Kellner v. Mutual Life Ins. Co. of New York, 309, 310. Kellogg, Ex parte, 177, 178. V. Tout, 917. V. Warmouth, 838. V. Wood, 707. Kelly V. Brooks, 191. V. Bckford, 227, 403, 405. V. Galhraith, 887, 890. V. Kelly, 122. V. Roane Iron Co., 201. Kelly's Heirs v. McGuire, 137. Kelsall V. Kelsall, 731. Kemp V. Lyon, 756. V. Mackrell, 630, 919. V. Pryor, 247. V. Squire, 199, 727, 782, 1005. V. Wade, 604. Kempson v. Kempson, 534. Kempton v. Bartlne, 701. V. Burgess, 575, 581. Kendig v. Dean, 58. Kendrick v. Whitfield, 246. • V. Whitney, 791. Kennebec & P. R. Co. v. Portland & K. R. Co., 143, 144. Kennedy v. Bank of Georgia, 887, 916 977, 979. V. Baylor, 657. V. Creswell, 316. V. Daly, 1008. V. Dodson, 865. V. Green, 399. V. Kennedy, 949, 961. Kennedy's Heirs v. Meredith, 343. Kennedy's Heirs & Executors v. Ken- nedy's Heirs, 71, 144, 152, 609, 629. Kensington, Ex parte, 704. V. Pugh, 676. V. White, 70. Kenrick v. Clayton, 259. , Kent V. Ricards, 341. Kentucky Silver Min. Co. v. Day, 208. Kenyon v. Shreck, 209. Keokuk & W. R. Co. v. Scotland Court, 921. Kerchner v. Kempton, 738. Kerfoot v. People, 87. Equity— 71. Kern v. Wyatt, 977, 980. Kemaghan v. Williams, 774. Kerr v. South Park Com'rs, 640. V. Union Bank of Maryland, 813, 830. V. Watts, 36. Kerrison v. Stewart, 52. Kersey v. Hobby, 623. V. Rash, 542, 543. Kershaw v. Mathews, 488. Kesner v. Miesch,- 520. Kester v. Lyon, 133, 613, 614. Ketcham v. Brazil Block Coal Co., 823. Ketchum v. Creagh, 952. V. Driggs, 103. Key V. Hord, 713. Key's Ex'rs v. Lambert, 872. Keyser v. Pollock, 209. V. Simmons, 150. Keystone Manganese & Iron Co. v. Martin, 720. Kidd V. Bates, 542, Kidder v. Barr, 656, 657, 886, 972. Kiernan v. Blackwell, 237. Kilbourn v. Latta, 667. V. Sunderland, 49, 61. Kile V. Goodrum, 813. , Kilgore v. Redmill, 122. Kilgour V. Crawford, 307, 308. Killian v. Bbbinghaus, 813, 815. Killing V. Killing, 456. Kimball v. Walker, 246, 586. V. Ward, 332, 353. Kimberly v. Arms, 576, 592, 595, 620, 621, 982, 1007, 1008, 1009. V. Fox, 953. V. Sells, 857. Kimbrough v. Curtis, 352. V. J. K. Orr Shoe Co., 440. Kimpton v. Eve, 533. Kindel v. Le Bert, 388. King, Ex parte, 179. V. American Transp. Co., 138. V. Clark, 883, 884,. 885. V. Cutts, 26. V. Dundee Mortgage & Trust Inv. Co., 985. V. Harrington, 187, 460. V. Harrison, 514. V. Heming, 288, 857, 877. V. King, 324. V. Ray, 319, 340. V. Robinson, 25. V. Strong, 776. V. Trice, 134. King of Hanover v. Wheatley, 688. King of Prussia v. Kuepper's Adm'r, 17. King of Spain v. Machado, 70, 85, 249, 588. V. Oliver, 17. Kingman v. HIggins, 707. Kingman & Co. v. Mann, 166. Kingsbery v. Ryan, 559. Kingsbury v. Buckner, 18, 169, 228, 730, 732, 955, 979, 994. Kinnaman v. Henry, 340. Kinne v. Lant, 211. Kinney v. Crocker, 26. Kinney's Ex'rs v. Harvey, 346. Kinsella v. Cahn, 212, 612, 613. Kinsey v. Howard, 143. Kirby v. Newsance, 643. V. Taylor, 314, 356. Kirk V. Kirk, 676, 686. Kirkham v. Justice, 124. Kirkley v. Burton, 116. 1122 TABLE OF CASES. [KEFEEENCES ABE TO PAGES.] Kirkman v. Vanlier, 671. Kirkpatrick v. Atkinson, 645. V. Buford, 588. V. Corning-, 156. V. Love, 659, 660. V. White, 276. Kirksey v. Keith, 129. Kirtland v. Moore, 828. Kiser v. Lovett, 529. Kisor V. Stanciter, 108, 321. Kissam v. Forrest, 687. Kittredge v. Claremont Bank, 290. Kleinschmidt v. Morse, 209. Klepper v. Powell, 309. Knapp V. Marshall, 265, 587. Knatchbull v. Feamhead, 774. Kneeland v. Luce, 469. Knickerbacker v. De Freest, 19, 219, 220, 347. Knight V. Atkisson, 995. V. Bampfield, 302. V. Bevis, 1013. V. Houghtalling, 761. V. Knight, 34, 35, 841, 888, 902. V. Martin, 777. V. Matthews, 415. V. Ogden, 474. V. Tarborough, 829. V. Toung, 192, 193, 194, 726, 727, 783 Ejiobloch v'. Mueller, 986, 990. Knowlton v. Hanbury, 971. Knox V. Brown, 580. Knox V. Picket, 775. Knox Rock-Blasting Co. v. Rairdon Stone Co., 271. Knye v. Moore, 145. Kohlsaat v. Illinois T. & S. Bank, 621. Kohn V. McNulta, 642. Kopper V. Dyer, 191. Koppinger v. O'Donnell, 817, 833, 834. Krippendorf v. Hyde, 79. Kron V. Smith, 561. Krueger v. J?'erry, 956. Kuchehbeiser v. Beckert, 730. Kuehling v. Leberman, 682. Kuh V. Bamett, 459. Kuhl V. Traphagen's Bx'r, 816, 825. Kuhtman v. Brown, 682. Kunkell v. Markell, 149. Kuttner v. Haines, 987, 988, 990. Kuypers v. Reformed Dutch Church, 236, 239, 357, 865. Kyle V. Auburn & Rochester R. Co., 516. V. Mary Lee Coal & Railway Co., 814. V. McKenzie, 426. V. People, 548, 552, 571. L. A. Thompson's Scenic Ry. Co. v. Toung, 517. ^^„ ,^^ Labadie v. Hewitt, 116, 153, 154. La Bourgogne, In re, 165. Lacassagne v. Chapins, 512. V. Ohapuis, 588. Lackett v. Rumbaugh, 213. Ladd V. Ingham, 452. Ladner v. Ogden, 591. Lafayette Co. v. Neely, 132. Lafayette Ins. Co. v. French, 165. Laffeity v LafEerty, 732 Laight V. Morgan, 117, 855, 858, 869. Laing y. Kaine, 473. Laird v. Boyle, 64. La Junta & Lamar Canal Co. v. Fort Lyon Canal Co., 466. ■ Lake v. Austwlck, 938, 945. V. Hardee, 631. V. Phillips, 650. V. Security Loan Ass'n, 131.' Lake's Petition, 174. Lake County Com'rs v. SutlifE, 470. Lake Shore & M. S. R. Co. v. Pelton, 497, 538. V. McMillan, 661, 715. V. Taylor, 544. Lake St. Elevated R. Co. v. Ziegler, 39, 714. Lakens v. Fielden, 259. Lakin v. Sierra Buttes Gold Min. Co., 306. Lalance & Grosjean Mfg. Co. v. Hab- erman Mfg. Co., 86. Lamar v. Gardner, 516. V. Micou, 31. Lamb v. Cecil, 416. V. Lamb, 24. V. Laughlin, 416. Lambert v. Hyers, 307, 308. V. Lambert, 266, 951, 952, 966. Lamon v. McKee, 822, 829. Lampley v. Weed, 697. Lancaster v. Lancaster, 846. V. Snow, 1015, 1016. V. Waukegan & S. W. Ry. Co., 385. Lance v. Bonnell, 387. Lanoy v. Randlett, 866. Land v. Wickham, 789, 791, 796, 797. Lander v. Fleming, 216. Landis v. Lyon, 630. V. Olds, 439. Landon v. Ready, 193. Lane v. EUzey, 258, 350, 438, 570. V. Hobbs, 756. V. Leech, 211. V. Newdigate, 516. V. Stebbins, 865. V. Sterne, 496. V. Union Nat. Bank of Chicago, 111. Laney v. Laney, 190. Lang V. Belloff, 584. V. Brown, 603, 623. i Langabier v. Fairbury, P. &. N. W. B. Co., 531. Langdale v. Langdale, 579. Langdon, Ex parte, 555, 556. V. Goddard, 108, 155, 344. V. Pickering, 360. Langley v. Oxford, 472. Langlois v. Matthiessen, 576. Langston v. Boylston, 821, 824. Lanier v. Driver, 410. Lanphier v. Desmond, 590. Lansing v. Lansing, 549, 563. V. McPherson, 203. V. Russell, 644. Lant V. Kinne, 474. Lanum v. Steel, 185, 355. Lanyon v. Michigan Buggy Co., 451. Lapenta v. Lettieri, 815. Larison v. Larison, 22. Larkins v. Biddle, 412. V. Paxton, 773, 778. Lamed v. Griffin, 290, 691. V. Piatt, 385. La Roque v. Davis, 382. Larrabee v. Grant, 644. Larter v. Canfield, 241, 294. TABLE OF CASES. 1123 [REFEBENOES ABE TO PAGES.] Larue's Heirs v. Larue's Ex'rs, 756. Lasco V. Moys, 934. Lasere v. Rochereau, 1014. Lash V. McCormick, 534. Lashley v. Hogg, 578. Lathrop v. Knapp, 28. | Latimer v. Richmond & D. R. Co., 57. Laughlin v. Solomon, 32. Laughton v. Harden, 81, 241, 242. Laurie v. Laurie, 531. Lautz V. Gordon, 955. La Vega v. L0,psley, 586. Lavell V. Gold, 640. Law V. Ford, 482. Law V. Grommes, 195, 196. V. Law, 386. V. Rigby, 244, 294. Lawless v. Fleming, 400. V. Jones, 653. i Lawrence v. Berney, 1016. V. Bolton, 433, 906, 907, 909-911, 932. V. Cornell, 754. V. Dana,, 712. V. Jarvis, 209. V. Lawrence, 205, 344, 371, 610, 670. V. Nelson, 32. V. Richmond, 751. V. Rokes, 39. i Lawrence's Ex'rs v. Lawrence's Adm'rs, 658. Lawson v. Barker, 37. V. Warren, 869. Layton v. Ivans, 521. Lea V. Robeson, 238, 264. V. Saxby, 865. V. "Vanbibber, 186. , Leach, In re, 567. V. Ansbacher, 409. Leacraft v. Demprey, 283, 284, 313 356. I Leahy v. Arthur, 481. Leather Manufacturers' Bank v. Coop- er, 48. Leavenworth v. Pepper, 136. Leavenworth County Com'rs v. Chi- cago, R. L & P. Ry. Co., 306. Le Baron v. Shepherd, 238. Lebkuechner v. Moore, 612, ,614, 617. Ledbetter v. Walker, 327. Ledwith v. City of Jacksonville, 521. Lee v. Angas, 692. V. Cargill, 534,, 584. V. Colston, 36. V. Lee, 726. V. Ryder, 222. V. Stiger, 343, 671. V. Willock, 610. Lee County Justices v. Fulkerson, 595. Leeds v. Corporation of New Radnor, 716. V. Marine Ins. Co. of Alexandria, 664, 665. , Le Fevre v. Matthews, 28. Le Fort v. Delafleld, 75, 241. Leftwich v. Orne, 357. Lef twick V. , Hamilton, 176. Legard v. Daly, 643, 645, 646. Leggett V. Bennett, 418. V. Dubois, 923. V. Postley, 321, 856, 864., V. Sellon, 358, 871. Legh V. Holloway, 647. Le Grand v. Whitehead, 755, 769. Le Guen v. , Gouvemeur, 809. Lehigh Valley R. Co. v. McFarlan, 76, 122. Lehman v. Collins, 205. Leicester Piano Co. , v. Front Royal & Riverton Improvement Co., 323. Leigh V. Macauley, 394. v. Thomas, 42, 63. Leister v. Sheringham, 776. Leitch V. Cumpston, 448, 456, 725. Leiter v. Field, 77. Lenning v. Lenning, 642. Lennon, In re, 512, 533. V. Lake Shore & M. S. Ry. Co., 533, 536. V. Rawitzer, 216. Lenz V. Prescott, 145. Leo V. Lambert, 510. Leonard v. Cook, 139, 892. V. Jamison, 824, 829. V. Storrs, 25. Leopold V. People, 550, 569. Le Roy v. Servis, 869. V. Veeder, 877. Leslie v. Leslie, 344, 361. Lespinasse v. Bell, 483. Lester v. Mathews, 986, 994. V. People, 547, 550, 553, 571. v. Watkins, 214. L'Bstrange v. .Moloney, 366. Letcher v. Schroeder, 124. Le Texier v. Anspach, 66, 69. Levert v. Redwood, 610, 613, 742. Levi v. Ward, 455. , Leving v. Caverly, 655. Levy V. Levy, 220, 733. Lewis V. Bridgman, 932, 934. V. Cockrell, 397. V. Cocks, 586. V. Daniel, 475. V. Darling, 419. , V. Germond, 580. V. Lanphere, 420, 702. V. Leak, 542. V. Lewis, 132. V. Loxam, 767, 768. V. Shainwald, 12, 503, 509. V. State Bank, 174. V. Sumner, 466, 470. V. Yale, 771. Lewis', Adm'r v. Glenn, 165. V. Lewis, 613. Lewisburg Bank v. ShefCey, 720. Lewiston Falls Mfg. Co. v. Franklin County, 113, 520, 521. Libbey v. Hodgdon, 29. Libby v. Norris, 80, 146. Lichfield v. Bond, 252. Liddell v. Carson, 16, 103. Lillard v. Mitchell, 89. Lillie V. Lillie, 228. Lilly V. Shaw, 753, 754. Linck V. City of Litchfield, 460. Lincoln v. Purcell, 264. V. Rutland & B. R. Co., 813. Linconfelter v. Kelly, 117. Linder v. Lewis, 193. Lindsay v. Lynch, 714. Lindsey v. Lindsey, 434. Lindsley v. James, 872. Lingan v. , Henderson, 139, 141, 191, 666, 679. Lingen v. Simpson, 399. Lingood v. Croucher, 860. Linn v. Green, 126. , V. Patton, 419, 699. V. Wheeler, 438. Linnell v. Lyford, 36. Linnville v. Darby, 218. Linsey v. McGannon, 738, 742. 1124 TABLE OF CASES. [REETEBENCES ABE TO PAGES.] Linton v. Denham, 543. V. Potts, 1015. Lippiat V. Holley, 733. Lipscomb v. McCIellan, 420. Litch V. Clinch, 342. Little V. Bunce, 97&. V. Cooper, 867. V. Johnson, 443. V. Snedecor, 135. Litton V. Armstead, 115. Livermore v. Bainbridge, 922. Liverpool &,L. & G. Ins. Co. v. Clunie, 146. Livesay v. Peamster, 540. Livingston v. Gibbons, 208, 209, 210. V. Harris, 128, 858, 876. , V. Hayes, 871. V. Hubbs, 711, 890, 979, 980, 987. V. Kane, 391. V. Lynch, 248. V. Marshall, , 431. V. Noe, 990. V. Story, 229, 230, 241, 857. V. Woolsey, 187. Livingston's Ex'rs v. Livingston, 241, 329, 857, 869. Livingstone v. Bank of Montreal, 812. Lloyd V. Brewster, 110, 140, 521. V. Johnes, 895, 901, 1025, 1029, 1032. V. Kirkwood, 731. , V. Loaring, 248. V. Makeam, 859. V. Wingfleld, 859. V. , 223. Lock V. Foote, 654. , Lockhart v. City of Troy, 539. V. Horn, 192. V. Leeds, 120, 238. Lockhead v. Berkeley Springs Water- works & Improvement Co., 135. Lookwood V. Bates, 793. V. Cleveland, 756. V. State, 571. V. Stradley, 730. Lodge V. State Bank, 216. Loeb V. Willis, 581. Lofland v. Coward, 475. V. Jefferson, 164. , Loftis V. Butler, 1002. Loggie V. Chandler, 111, 120, 419, 735. Loker V. Rolle, 116. Lombard v. Morse, , 23. London v. Bolt, 519. V. Dorset, .676, 711. V. Levy, 242, 864. V. Perkins, 76, 152. London Assurance v. Bast India Co., 260. Long V. Barker, 815. V. Brown, 541. V. Burton, 351, 973. V. Cole, 756. V. Cranberry, 996. V. Long, 54, 193. V. Muiford, 728-730. V. Trabue, 210. Long's Adm'r v. White's Administra- tors & Heirs, 667. Longshore Printing Co. v. Howell, 520. Longworth v. Sturges, 984. V. Taylor, 909. _ Lonsdale Co. v. City of Woonsocket, Lookout Bank v. Susong, 237, 263. Loomes v. Btotherd, 776. Loomis V. Fay. 670. V. Freer, 956, 974. Lopez V. Deacon, 403. Lord V. Bigelow, 472. V. Underdunck, 701. Lord's Appeal, 639. Lorillard v. Coster, 53. Loring v. lUsley, 447. V. Marsh, 12. Lorman v. Clarke, 12. Lorton V. Seaman, 550. v. Seamon, 553. Loth V. Loth, 996. Loudenback v. Collins, 590. Louis V. Brown Township, 954. Louisiana State Lottery Co. v. Clark, 811, 830. Louisville, N. A. & C. By. Co. v. Ohio Valley Improvement & Contract Co., 152. Louisville Southern R. Co.'s Receiver V. Tucker's Adm'r, 26. Lousada v. Templer, 673, 871. Love V. Blewit, 995. V. Braxton, 667. Loveden v. Milford, 679. Lovejoy v. Churchill, 616. V. Irelan, 756. Lovelace v. Hutchinson, 70. Lovell V. Chilton, 519. V. Hicks, 798. Loven v. People, 534, 535, 561. Loveridge v. Larned, 771. Lovett V. Demarest, 379. V. Steam Saw Mill Ass'n, 670, 671. Lovette v. Longmire, 232. Low V. -Mills, 188. Lowe V. Burke, 241. V. Davidson County Com'rs, 542. V. Morris, 259. V. Richardson, 815. V. Warren Canal Co., 543. Lowenstein v. Glidewell, 169, 575, 577, 578, 974. V. Rapp, 135. Lownsdale v. Portland, 360. Lowry v. Story, 385. V. Tew, 304. V. Tile, Mantel & Grate Ass'n, 209. Lowther v. Andover, 722. Loyd .V. Cardy, 505. V. Malone, 731, 732. V. Mansell, 986. V. Spillet, 775. Loyless v. Howell, 536. Lubiere v. Genou, 687, 971, 972. Lucas V. Bank of Darien, 75, 379, 865. V. Hickman, 502. V. Oliver, 135. Luce V. Graham, 410, 429, 430. Ludlow V. Lansing, 757. Ludlow's Heirs v. Johnston, 451. Luft V. Gossran, 415. Lull V. Clark, 604. Lunt V. Stephens, 894. Lupton V. Johnson, 227, 405. V. White, 767. Lusk V. Thatcher, 587. Lycoming Fire Ins. Co. v. Wright, 28. Lyell V. Goodwin, 179. Lyford v. Gove, 650. Lyle V. Commercial Nat. Bank, 481. Lyles V. Lyles, 645. Lyman v. Central Vermont R. Co., 26. Lynch v. Colegate, 542. v. Rotan, 59, 83. V. Willard, 246. TABLE OF CASES. 1125 [eefekencbs aee to pages.] Lynde v. Lynde, 754. Lyndon v. Lyndon, 205. Lyon V. Brooks, 330. V. Cressman, 298. V. Lyon, 501. V. Perln & Gaff Mfg. Co., 581, 714, V. Tallmadge, 264, 382, 706. V. Tevis, 65, 66. Lyons v. MoCurdy, 139. V. Miller, 880, 883. V. Van Riper, 1023. Lyster v. Stickney, 579, 887. Lytle V. Breckenridge, 121, 127, 410. M. McAllister v. Clopton, 340. V. Plant, 791. McAlpin V. Finch, 458. McArtee v. Engart, 770. McArthur v. Bloom, 17. V. Scott, 53, 86. McBride v. Farmers' Bank of Balem, 593. McBurney v. Carson, 83. McCabe v. Cooney, 88, 317. MacCabe v. Hussey, 809. McCagg V. Heacook, 961. McCahill v. Equitable Assur. Soc, 188. McCall V. McCurdy, 991. V. Walter, 830. McCann v. Beere, 403. McCarthy v. McCarthy, 146. . McCartney v. Fletcher, 865. McCelvy v. Noble, 885. MeChord's Heirs v. McClintock, 760. MoClanahan v. Davis, 126, 127, 870. McClane v. Boon, 807. McClane's Adm'x v. Shepherd's Bx'x, 380. McClaskey v. Barr, 173, 319, 951. McClay v. Norris, 615, 653. McClellan v. McClellan, 729. McClintock v. Helberg, 63, 815. McCloskey v. Barr, 275, 277, 278, 297, 310. McClung V. MeWhorter, 176. MeClure V. Gulick, 563. V. Sandford, 386. McComb V. Chicago, St. L. & N. O. R, Co., 69, 872. McConaughey v. Bennett's Ex'rs, 86. McConnel v. Gibson, 89. V. Smith, 953. McConnell v. Hodson, 962. V. Holobush, 155, 345. V. McConnell, 49, 140. V. State, 553. McConomy v. Reed, 620. McCord & Nave Mercantile Co. v. Glenn, 462. McCormick v. Chamberlin, 313, 358. McCosker v. Brady, 140, 147, 499. McCoy V. Appleby Mfg. Co., 774. McCoy's Bx'r v. McCoy's Devisees 187. McCrea v. Haraszthy, 450. McCredie v. Senior, 557. McCreery v. Cobb, 853. McCulla v. Beadleston, 870. McCurdy v. Mather, 576. McDaniel v. Callan, 950. V. Goodall, 191. v. James, 986. V. Marygold, 640. McDermott v. Blois, 236, 240. V. Kealy, 799. v. MoGown, 922, 945. V. Thompson, 19. McDonald v. Asay, 1030-1032. v. McDonald, 221, 343. V. Mobile Life Ins. Co., 197. v. People, 567. V. Salem Capital Flour Mills Co., 275, 282. MacDonough v. Gaynor, 502. McDougald v. Dougherty, 351, 411, 420, 431, 578, 606. V. ■Willlford, 409, 411, 412. McDougald's Adm'r v. Dougherty, 980. MaoDougall v. Gardiner, 56. McDowell v. Cochran, 265. V. Perrine, 785. McElroy v. Ludlum, 663. V. Swope, 623. McElwain v. Willis, 264, 705. McBlwaine v. Hosey, 469. V. Willis, 821. McElwee v. Massey, 263. V. Sutton, 870, 885. McEwen v. Broadhead, 292, 311, 312, 315. V. Troost, 816, 817. McFarland v. Claypool, 428. McGarel v. Moon, 319. McGavock v. Bell, 75. v. Clark, 197. V. Morrison, 958. McGee v. McGee, 504. McGehee v. White, 670. McGilliard v. Donaldsonville Foundry & Machine Works, 483. McGillis V. Hogan, 594. McGlathery v. Richardson, 985. McGorray v. O'Connor, 331. McGourkey v. Toledo & O. C. Ry. Co., 719. McGowan v. Hall, 353. V. McGowan, 133. McGregor v. Gardner, 995. V. Vermont Loan & Trust Co., 199 757 McGriff V. Alfor'd, 144. McGuffie V. Planters' Bank, 658. McGuire v. Gallagher, 980. V. Pensacola City Co., 58?. V. Van Buren County Circuit Judge, 677. Mellvain v. Southwestern Market Co., 968. Mcintosh v. Alexander, 154. Mclntyre v. Ledyard, 706. V. Mancius, 864. V. Trustees of Union College, 68, 120, 344, 360, 363, 867, 870. McJilton V. Love, 294, 295. McKay v. Bissett, 650. V. Broad, 418. V. Jackman, 771. V. McKay's Adm'rs, 431. McKeen v. Field, 362. V. Gammon, 472. McKell V. Collins Colliery Co., 684, 708. MacKenzie v. Flannery, 11. McKieman v. Patrick, 158. McKim V. Mason, 328, 339. V. Odom, 569. V. Thompson, 393, 395, 665. McKinley v. Wilmington Star Min- ing Co., 478. 1126 TABLE OF CASES. [EEFEBENCES ABE TO PAGES.] McKinney v. Pierce, 620. McKinnon v. McDonald, 772. McKissick v. Martin, 334. MacKnight, In re, 550, 572. McDane v. Johnson, 237. McLaughlin v. People's Ry. Co., 306. V. Van Kueren, 701. MoLemore v. Chicago, St. L. & N. O. R. Co., 730, 731. McLeod V. City of New Albany. 783, 788, 791. V. New Albany, 81. McLure v. Colclough, 353. McMicken v. Perin, 199. McMuUen v. Eagan, 962. McNab V. Bennett, 210. McNair v. Toler, 16. McNairy v. City of Nashville, 267. McNamara v. Arthur, 519, 702. V. Dwyer, 501, 510. V. Home Land & Cattle Co., 612. V. Provident Sav. Life Assur. Soc, 824, 830. McNeil, Ex parte, 691. V. Cahill, 714. McNeill V. Town of Andes, 478. McNulta V. Lockridge, 26. McPherson v. Cox, 952. McRae v. Atlantic & N. C. R. Co., 128 V. Boast, 475, 476. V. David, 422. V. Insurance Bank of Columbus, 655. McRae's Ex'rs v. "Wood's Ex'r, 646. McRaney v. Coulter, 749. MoTighe v. Dean, 393. McVeigh v. United States, 17. McVickar v. Constable, 220. V. Filer, 583. V. Wolcott, 540. McWhorter v. McMahan, 139. Mabry v. Churchwell, 581. Macauley v. Shackell, 851. Macey v. Childress, 292, 293, 298, 329. Mackall v. Casilear, 129, 153. Mackay v. Gordon, 197. Mackey v. Bell, 984. Mackie v. Calms, 366. Mackintosh v. Flint & P. M. R. Co., 906. Macklin v. Richardson, 518. Mackrell v. Hunt, 847. Mackreth v. Nicholson, 163. Macon v. Harris, 645. Macon & B. R. Co. v. Gibson, 146, 530. Macy v. Nelson, 450. Maddox v. Sullivan, 667. V. White, 237. Madison's Heirs v. WaUace's Ex'rs, 220. Magarity v. Shipman, 770. Magee v. Magec, 246. Magennis v. Parkhurst, 561. Maghee v. Mahon, 769. Magic Ruffle Co. v. Elm City Co., 621. MagiU's Appeal, 387. Magnlao v. Thomson, 131. Magnolia Metal Co. v. Pound, 467, 478. Magnuson v. Billings, 385. Magrath v. Veitch, 684. Magraw v. Irwin, 32. Magruder v. Campbell, 264. Maher v. Bull, 422, 428, 650, 959. Mahone v. Williams, 617. Main v. Lynch, 384. Main v. Melbourn, 879. Mains v. Hormer Steel-Fence Co., 276. Maitland v. Wilson, 314. Major V. People, 176. Malcolm v. Andrews, 505. V. Scott, 891. Malkln, Ex parte, 635. Mallack v. Galton, 729. Mallery v. Dudley, 263. V. Quinn, 780, 976. Mallet V. Girard, 215. Malone v. Marriott, 755. Maloney v. Hunt, 385. Manby v. Robinson, 821, 824. Manchester v. Dey, 538. V. Mathewson, 941, 947, 948. V. McKee, 189. Mandeville v. Riggs, 35. Manko v. Borough of Chambersburgh, 543. Manks v. Holroyd, 117. Manley v. Miekle, 654, 870. Manlove v. Burger, 25. Mannhardt v. Illinois StEiats Zeitung Co., 83, 587. Manning v. Lechmere, 650. Mannix v. State, 212. Mansfield v. Hoagland, 204. Manson v. Duncanson, 51, 52, 218, 219, 732. Manufacturers' Paper Co. v. Lindblom, 987, 1003. Many v. Beekman Iron Co., 67, 68, 357, 866, 867. Marble v. Bonhotel, 413. V. Thomas, 617. March v. Davison, 116. V. Eastern R. Co., 56. V. Mayers, 264, 409. Mare v. Malachy, 47. Marine Bank Co. v. Mailers, 451. Marine Nat. Bank v. National City Bank, 784. Mariner v. Dyer, 547. Markell v. Kasson, 577. Markle v. Markle, 223. Marks v. Fox, 607. V. Marks, 294. Marks Adjustable Folding Chair Co. V. Wilson, 771. Marlborough v. Wheat, 610. Marr v. Lewis, 962. Marsden v. Bound, 680. Marselis v. Morris Canal & Banking Co., 148. Marsh v. Crawford, 368. V. Davidson, 521. V. Davison, 855, 861, 865, 866. V. Green, 79, 418. v. Dasher, 352. V. Marsh, 425. V. Mitchell, 423. V. Bibbald, 704. V. Village of Fairbury, 71. V. Wells, 62, 84. V. Whitmore, 128. Marshall v. Croom, 645, 657. V. Holmes, 1009. V. Means, 143. V. Otto, 294. V. Sladden, 66. V. Tenant, 188. V. TumbuU, 132. Marshall's Estate, In re, 156. Marshall's Ex'rs v. Marshall's Ex'rs, 643. TABLE OF CASES. 1127 [EEFEBENCBS ABE TO PAGES.] Marston v. Brackett, 628. Martin v. Atkinson, 422. V. Burgwyn, 563. V. Dryden, 664. V. Evans, 714. V. Gilmore, 205. V. Jamison, 265. V. Kester, 953. V. Maberry, 813. V. Martin, 528. V. McBryde, 130. V. Palmer, 115. V. People, 693. V. Persse, 775. V. Reese, 653, 697, 698. V. Van Shaick, 481. V. Wiggin, 178. Martin's Heirs •v. Tenison, 128. Marvel v. Ortlip, 540. Marvin v. Hampton, 300, 712. Maryland & New York Coal & Iron Co. V. Wingert, 670. Mason v. Abbott, 215. V. Bair, 707. V. Blaireau, 213. V. Codwise, 773, 776. V. Crosby, 612, 619, 623. V. Detroit City Bank, 431. V. Gardiner, 228, 955, 961, 966. V. Goodburne, 841, 845. V. Hamilton, 830. V. Hartford, P. & F. E. Co., 386, 414, 934. V. Jones, 133. V. Mason, 630. V. McGirr, 697. V. Murray, 520. V. Smith, 667. V. Wash, 138. V. Tork & C. R. Co., 64, 575, 1029 Massachusetts v. State of Rhode Is- land, 215. Massachusetts Mut. Life Ins. Co. v. Chicago & A. R. Co., 294. Massey v. Colville, 179. V. Modawell, 71. Massie v. Graham, 977, 988, 995. Massie's Heirs v. Donaldson, 164. Massingill v. Carraway, 883. Masters v. Barnes, 918. V. Beckett, 961. Masterson v. Howard, 16, 17. Mathews v. Bank of Allendale, 144 Matney v. Ratliff, 232. Mattair v. Card, 977. v. Payne, 154. Matthews v. Dunbar, 421. v. Roberts, 301, 314, 325. V. Warner, 128. Mattocks V. Tremain, 504, 505. Maud V. Barnard, 163. Maulsby, Ex parte, 572. Maund v. Allies, 227. Maury v. Lewis, 603, 610. V. Van Amum, 461. Maxim-Nordenfelt Guns & Ammuni- tion Co. V. Colt's Patent Firearms Mfg. Co., 605, 607. Maxwell v. Jarvis, 186. V. Rives, 573. V. Smith, 735. Maxwell Land Grant & Railway Co. V. Thompson, 1022. May V. Armstrong, 845, 846, 956. V. Barnard, 60. V. May, 594, 595. V. Shumway, 691. May V. Sloan, 328. V. Williams, 332, 353. Mayer v. Galluchat, 322. V. Tyson, 368. Maynard v. Moseley, 742. V. Pereault, 199. v. Pomfret, 182. Mayne v. Hochin, 521. Mayo V. Clancy, 979. Mayo's Bx'r v. Carrington's Ex'r, 666. Mays V. Rose, 480. Mazarredo v. Maitland, 359, 372, 881. Meach v. Chappell, 462. Mead v. Arms, 784, 1020, 1037, 1038. V. Burk, 482. V. Christian, 720. V. Day, 340. V. Norris, 533. Meade v. Beale, 12. V. Finley, 376. V. Hartley, 417. Meagher v. Gagliardo, 467. Mealey, In re, 630. Meanner v. Carroll, 89. Mears v. Lockhart, 677. Mecham v. McKay, 663. Mechanics' 'Bank v. Levy, 107, 319, 322. Mechanics' Bank of Alexandria v. Lynn, 319. Meek v. Spracher, 34, 630, 645. Meeker v. Mar?h, 275. V. Meeker, 642, 646. Meers v. Stevens, 133. Meissner v. Buek, 953. Melendy v. Earbour, 25. Meliorucchy v. Meliorucchy, 228. Melius V. Thompson, 310. Meloy V. Central Nat. Bank, 793. Mendell v. Kimball, 202. Mendham v. Robinson, 1024. Mendizabel v. Machado, 680. Menz V. Beebe, 24. Mercantile Trust Co. v. Missouri, K. & T. Ry. Co., 237, 283, 344, 474. Merchant v. Preston, 352. Merchants' Bank v. Jeffries, 126. V. Marine Bank, 472. Merchants' Exchange Bank of Mil- waukee V. McGraw, 137. Merchants' Ins. Co., In re, 495. Meridian Nat. Bank v. Hoytt Bros. Co., 159. Merrewether v. Mellish, 284, 424, 942, 947. Merrill v. E'am, 490. V. Plainfleld. 381. V. Washburn, 130. Merriman v. Chicago & E. I. R. Co., a39, 140, 141, 142. Merritt v. Brown, 343. V. Wilcox, 467. Merwin v. Smith, 542. Messer v. Storer, 135. Metcalf V. Brown, 240. V. Hervey, 117, 241, 817, 820, 821, 860. Metcalfe v. Metcalfe, 926. 933. v. Pulvertoft, 487, 488. Metier v. Metl^r's Adm'rs, 854, 866, 870. Metropolitan Grain & Stock Exchange V. Chicago Board of Trade, 539. Metropolitan Nat. Bank v. Commer- cial State Bank, 494. 1128 TABLE OF CASES. [retebences akti; to pages.] Metropolitan Trust Co. of New York V. Columbus, 149. Metz V. Bremond, 174. Meux V. Ajithony, 232, 323, 712. V. Bell, 818, 822, 833. V. Maltby, 40, 44, 49. Mexican Cent. Ry. Co. v. Pinkney, 586. Mey V. Gulliman, 662. Meyer v. Brooks, 207. V. Kuhn, 172, 187, 204. V. Thomas, 481. Meyers v. Bushby, 329. Miami Exporting Co. v. Bank of Unit- ed States, 735. Michael v. Mace, 170, 187, 966. Michaux v. Grove, 249. Michew v. McCoy, 216. Michigan State Bank v. Gardner, 35, 75. Michigan & Ohio Plaster Co. v. White, 822, 824, 830. Mickle V. Maxfield, 1004. Micklethwait v. Moore, 226, 405, 406. Micou V. Ashurst, 139. Middleton v. Dodswcll, 487. Middletown Bank v. Russ, 861. Midmer v. Midmer's Bx'rs, 410, 416. Mietzsch v. Berkhout, 123. Migliorucoi v. Migliorucci, 228. Milbank v. Jones, 468. Miles V. Miles, 108, 319, 665. Milk V. Moore, 630, 631, 635, 640, 642. Mill V. Mill, 689, 690. Millard v. Marmon, 219. Miller v. Adams, 458. V. AveiT, 707. V. Bear, 63. V. Chicago, M. & St, P. Ry. Co., 458. V. Clark, 905, 1003, 1004. V. Cobb, 631. V. Cook, 891, 893, 894, 1030. V. Davidson, 266. V. Ellison, 823. V. Fenton, 276, 330, 423, 951. V. Fraley, 327. V. Gregory, 323. V. Hemphill, 689. V. Hild, 199, 200. V. Jamison, 85, 7S5. V. Jones, 496. V. Lamar, 651. V. McCan, 588. V. Miller, 510, 588. V. Munson, 463. V. Perks, 283. V. Rogers, 899. V. Stalker, 125. V. Tobin, 695. V. Traphagan, 540. V. United States Casualty Co., 271, 316, 853, 859, 867. V. Wheatley, 365. V. Whittaker, 433. V. Winton, 389. Miller's Adm'x v. Miller, 616, 618. Milligan v. Milledge, 276. v. Mitchell, 226, 325. v. Wiseman, 697. Millington v. Pox, 518. Mills v. Banks, 783. V. Campbell, 70. V. Dennis, 198, 729. V. Fry, 390. V. Gore, 665. Mills V. Hanson, 394. V. Hoag, 6.S, 64. 720, 721, 1029. V. Larrance, 330. V. Pittman, 379. V. Scott, 215. Millsap V. Stanley, 101. Millsaps V. Pfeiffer, 853, 949, 952. Millspaugh v. McBride, 199, 782. Milly V. Harrison, 733. Milner v Harewood. 710, 891, 1030. Milton V. Hogue, 430. Miner v. Markham, 179. Mineral Point R. Co. v. Keep, 212. Minnesota v. Northern Securities Co., 58. Minnesota Co. v. St. Paul Co., 170, 894. Minter v. Branch Bank of Mobile, 133. Minturn v. Seymour, 539. Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 275, 620. Mitchel V. Hardie, 726. V. Lowndes, 701. Mitchell V. Bunch, 501, 502, 510. V. Burnham, 613. V. Green, 864. V. Hayne, 833. V. Huron Circuit Judge, 180. V. Lenox, 82, 701. V. Maupin, 343. 671. V. Overman, 751. V. Smart, 813. V. Smith, 694, 854. V. Tighe, 123. Mix V. Beach, 205, 887, 892, 909. V. Chandler, 387. V. Hotchkiss, 147, 150. V. People, 157, 358, 361. 363, 416. Moat V. Holbein, 497, 530, 534. Mobberly v. Mobberly, 656. Mobile & C. P. R. Co. v. Talman, 148, 740. Mobley v. Leophart, 705. Mock V. City of Santa Rosa, 124. Moelle V. Sherwood, 757. Moffett V. Hanner, 595. Moffltt V. Jordan, 478. Moggridge v. Thackwell, 779. Mohawk & H. R. Co. v. Clute, 816-819, 832, 833. Mohler v. Wiltberger, 578. Mohr V. Manierre, 219. Mohun V. Mohun, 778. Mole V. Smith, 894, 1031. Monahan v. Fitzgerald, 613. Mondey v. Mondev, 729. Monell v. Lawrence, 448, 533, 786. Money v. Dorsey, 658. Monkhouse v. Corporation of Bedford, 755, 789. Monroe v. Bradley, 557. V. Lewald, 476. Monroy v. Monroy, 344. Monson v. Hutchin, 298. Montague v. Dudman, 854, 864. Monteith v. Taylor, 1023, 1024. Montgomery v. Muskegon Booming Co., 572. V. Olwell, 951. Moodalay v. Morton, 840, 864. Moody V. Farr, 980. v. McDuff, 202. Moog V. TaJcott, 140. Moons V. De Bernales, 626, 702. Moor V. Welsh Copper Co., 294, 301. Moore, In re, 561. TABLE OF CASES. [KEFEEENOES ABE TO PAGES.] 1129 Moore V. Anderson, 124. V. Armstrong, 261. V. Bracken, 994. V. Cheeseman, 116. V. Crawford, J 22. V. Edwards, 879. V. Elkington, 920. V. Green, 194. V. Greene, 132. V. Grubbs, 590. V. Harper, 89. V. Hill, 816. V. Holt, 293. V. Hudson, 503. V. Lockett, 343. V. Lyttle, 249. V. Martin, 477. V. Meek, 451. V. Murrah, 713. V. Prior, 578. V. Spiegel, 294. V. Tilman, 135, 190, 191, 575. Moore's Ex'r v. Beauohamp, 623. Moores v. Moores, 323, 650. Mootry v. Grayson, 755. Moran v. Schooling's Adm'r, 952. Moreton v. Harrison, 277, 309. Morgan v. Blatchley, 953. V. Bucki, 25. V. Currie, 5S3. V. Fuller, 631. V. Harris, 857, 877. V. Lewis, 605. V. Marsack, 816. V. Morgan, 76, 315, 899. V. Potter, 3r. V. Scott, 262. V. Scudamore, 919. V. Smith, 121, 949. V. , 1016. Morgan's Louisiana & Texas Railroad & Steamship Co. v. Texas Cent. Ry. Co., 949, 960. Moriarty v. Mason. 576. Morio's Appeal, 603. Morison v. Turnour, 272. Morrell v. Dickey, 775. V. Morrell, 631. ' Morrill v. Manhattan Life Ins. Co. 813, 827. V. Morrill, 413. Morris v. Hand, 762. V. Marcy, 559. V. McNeil, 501. V. Morris, 144, 342, 358. V. Parker, 340, 880. V. Taylor, 623, 695. V. Tillson, 122. V. Walsh, 549. V. White, 669. Morris Canal & Banking Co. v. Bart lett, 540. V. Biddle, 537. Morrison v. Arnold, 847. V. Coleman, 537. V. Nevin, 387. V. Smith, 741. V. Stewart, 666. Morriss v. Virginia Ins. Co., 730. Morrissey v. Foley, 394. Morse v. Hovey, 74, 130. V. State, 466. Mortimer v. Fraser, 241. Mortlock V. Buller. 702. V. Leathes, 394. Morton v. Beach, 719. Morton v. New Orleans & S. Ry. Co. & Immigration Ass'n, 950. Moseby v. Lewis' Adm'rs, 584. Moseley v. Garrett, 343. Moses V. Bradie, 133. V. Murgatroyd, 774. Mosgrove v. Kountze, 889. Mosher v. Joyce, 622. Moshier v. Knox College, 381, 427. Mosier v. Norton, 328, 594. Moss V. McCall, 595. Mostyn V. Spencer, 693. Mott V. Harrington, 609, 616. Motteaux v. Mackreth, 859. Moulin V. Trenton Mnt. Life & Fire Ins. Co., 165. Mounce v. Byars, 421, 712. Moundsville v. Ohio River R. Co., 115. Mounsej- v. Burnham, 374. Mount V. Manhattan Bank of New York, 278. V. Manhattan Co., 275, 278. Mount Carbon Coal & Railroad Co. v. Blanohard, 149. Mount Holly, Lumberton & Medford Turnpike Co. v. Feree, 825. V. Ferree, 811. Mount Olivet Cemetery Co. v. Budeke, 411. Mouseley v. Basnett, 390. Movan v. Hays, 64. Moyer v. Cook, 176. V. Livingood, 877. Moyer's Estate, In re, 630. Movers v. Coiner, 771. Mozley v. Alston, 56. Mrzena v. Brucker, 952. Muckleston v. Brown, 108. Muhlenburg County v. Citizens' Nat. Bank, 169. Muir v. Trustees of Leake & Watts Orphan House, 126. Mulcahey v. Strauss, 26. Mulford V. Allen, 418. Mullens V. Williamson, 439. Mulock V. Mulock, 645, 707, 711, 785, 795. Mulvany v. Dillon, 786. Mumford v. Sprague, 200. Munch V. Cockerell, 60. v. Shabel, 254, 420, 424. Mundy v. Whittemore, 391. Munoz V. De Tastet, 39, 113. Murdock's Case, 512, 516, 517, 553. .Murphy v. Abbott, 550. V. City of Savannah, 980. V. Clark, 141. V. People, 468. V. Stults, 711. Murray v. Blatchtord, 756, 809. V. Cone, 458. V. Coster, 314, 425. V. Elibank, 834. V. Graham, 234. V. Hay, 70, 71, 147. V. Johnson, 883. V. King, 890. V. Kirkpatrick, 459. V. Murphy, 984. V. Shadwell, 292, 329. V. Vipart, 170. Murrell v. Smith, 996. Musgrove v. Gray, 760, 761. Mussel v. Morgan, 1005, 1006. Mussey v. Bates, 469. Mussina v. Bartlett, 190, 191, 570, 582. 1130 TABLE OF CASES. [eefeeences are to pages.] Mutual Benefit Life Ins. Co. v. Rob- ison, 138. Mutual Life Ins. Co. v. Cokefalr, 362 880, 882, 957. V. Pinner, 158, 197, 214. Mutual Life Ins. Co. of New York v Sturges, 199. Mutual Nat. Bank of New Orleans v Moore, 208. Mutual Reserve Fund Life Ass'n v Bradbury, 2t2. Myers v. Penn, 80. V. James, 614. V. Manny, 973, 974. V. Prefontaine, 214. V. State, 550, 562. V. Wright, 237. ■N. Nabob of Arcot v. East India Co., 245 425. Nabob of the Carnatic v. Bast India Co., 244. Nagengast v. Alz, 132. Nancy v. Trammel, 878. Nanney v. Totty, 933-935. Napier v. Effingham, 729, 731. V. Howard, 731. Nash V. Flyn, 951. V. Ingalls, 129. V. Smith, 587, 811, 818, 821. Nashua & L. R. Corp. v. Boston & L. R. Corp., 979. National Bank v. Carpenter, 263, 1000. V. Insurance Co., 255. National Bank of Metropolis v. Sprague, 618, 620, 624. National Bank of West Grove v. Earle, 876. National Building & Loan Ass'n v. Strauss, 760. National Docks & N. J. J. C. Ry. Co. V. Pennsylvania R. Co., 760. National Fire Ins. Co. v. Sackett, 200. National Folding Box & Paper Co. v. Dayton Paper Novelty Co., 615, 621, 623. National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 271, 277, 282, 358, 853. National Ins. Co. v. Pingrey, 814, 815, 830. National Park Bank of New York v. Halle, 135, 238. V. Lanahan, 811. Neal v'. Foster, 952, 958-961, 971, 973. V. Price, 563. V. Robinson, 984. Neale v. Hagthrop, 343. V. Neale, 416. v. Neales, 411. Nebraska Children's Home Soc. v. State, 553, 560. Nebraska Moline Plow Co. v. Fueh- ring, 462. Needham v. Smith, 711, 796. v. Thayer, 197. V. Washburn, 419. Neely v. Anderson, 83. V. Jones, 594. Neil V. Oldbach, 521. Nelms V. Bdinburg-American Land Mortgage Co., 16. Nelson v. Burrows, 57. V. Dunn, 426, 954, 956. V. Baton, 198, 351, 433. V. Lowndes County, 952. V. Moon, 219. V. Robinson, 537, 538. V. Suddarth, 1003. V. United States, 6S1, 682. Nesbit V. St. Patrick's Church, 187. Nesbitt V. Dallam, 333, 353, 356. Nesmlth v. Calvert, 137. Neubert v. Massman, 893. Nevada Nickel Syndicate v. National Nickel Co., 890, 900. Neve V. Weston, 294. Nevil V. Johnson, 684, 699. Nevinson v. Stables, 788. Nevitt V. Bacon, 713. New Castle v. Pelham, 860. New Jersey Zinc Co. v. New Jersey Franklinite Co., 791. New London Bank v. Lee, 42. New Music Hall Co. v. Orpheon Music Hall Co., 521. New Orleans v. Gaines' Adm'r, 751. V. New York Mail Steamship Co., 553, 571. V. Warner, 618. New Orleans Canal & Banking Co. v. Stafford, 48. New Orleans Gas Light & Banking Co. V. Dudley, 328, 630. New River Co. v. Graves, 152. New York v. Connecticut, 527. V. New York & Staten Island Perry Co., 534. New York Bank Note Co. v. Kerr, 528, 529. New York Chemical Co. v. Flowers, 346, 353. New York Fire Ins. Co. v. Tooker, 419. New York Life Ins. Co. v. Bangs, 218, 219 New York, L. & W. R. Co., In re, 469. New York Printing & Dyeing Estab- lishment v. Fitch, 515. New York Security & Trust Co. v. Lincoln St. Ry. Co., 893. New York & Baltimore Coffee Polish- ing Co. V. New York Coffee Polish- ing Co., 840, 843. New York & N. H. R. Co. v. Schuy- ler, 77, 152. New V. Bame, 543. V. New, 871. Newark Plank Road & Ferry Co. v. Elmer, 91. Newberry v. Blatchford, 949, 950. Newburg v. Wren, 973. Newburgh & Cochection Turnpike Road V. Miller, 518. Newcombe v. Murray, 921, 924, 939. Newell V. Bureau County Sup'rs, 131. Newhall v. Hobbs, 319. V. Kastens, 815, 823, 828, 833. V. Provost, 176. Newhouse v. Miles, 84. New Jersey v. State of New York, 113. Newkerk v. WiUett, 860. Newland v. Gaines, 751. V. Horseman, 708, 711. V. Rogers, 145. Newlove v. Woodward, 209. Newman v. Commercial Nat. Bank, 813, 814. V. Godfrey, 250. TABLE OF CASES. 1131 [refeeences aee to pages.] Newman v. Moody, 446. V. Newman, 464. V. Wallis, 424, 425. Newport v. Newport Light Co., 548. Newton v. Beresford, 403. V. Levis, 515. V. Swazey, 298. V. Thayer, 309, 380. Niagara Fire Ins. Co. v. Soammon, 478. Nicholas v. Murray, 290. Nicholl V. Mason, 295. Nichols V. Bla, 616, 624. V. Horton, 179. V. Kearsly, 519. V. Nichols' Heirs, 266, 995. V. Rogers, 415. Nichols, Shepard & Co. v. Jones, 470. Nickels v. Kane's Adm'r, 614. Niokle V. Stewart, 977. Nlool V. Vaughan, 801. Nicoll V. Roosevelt, 915. Nims V. Nims, 610. Nishett V. Murray, 776, 777. Nobkissen v. Hastings, 308, 424, 425. Noble V. Garland, 867, 868. V. United States, 463. V. Wilson, 540. Noe V. Gibson, 496. Noel V. King, 973. V. Ward, 307. V. White, 629. Noel's Adm'r v. Noel's Adm'r, 797. Nofsinger v. Reynolds, 834. Nolan V. Shannon, 688. Nolton V. Western R. Corp., 447. Non-Magnetic Watch Co. of America V. Association Horlogere Suisse of Geneva, 188. Noonan v. Lee, 131. Norburg v. Meade, 122. Norris v. Hassler, 692. V. lie, 420. V. Lemen, 125. V. Le Neve, 711, 888-890, 1039. North V. Gray, 839. v. Klzer, 135. V. Roodhouse, 770, 771. V. Strafford, 231, 239. North American Coal Co. v. Dyett, 894, 905. North American Land & Timber Co. V. Watkins, 489. North British & Mer. Ins. Co. v. Lathrop, 955. North Missouri R. Co. v. Stephens, 477. North Muskegon, City of, v. Clark, 294. North Pacific Lumber Co. v. Lang, 813, 828, 829. Northern Pac. R. Co. v. Walker, 151. Northern R. Co. v. Ogdensburg & L. C. R. Co., 953. Northman v. Liverpool, L. & G. Ins. Co., 947, 1023, 1024. Northwestern Bank v. Nelson, 882. Norton v. Coley, 260. V. Hauge, 464. V. Turvill, 324. V. Warner, 340, 880. V. Woods, 340, 343-345, 861. Norway v. Norway, 778. V. Rowe, 537. Norwood, Ex parte, 28. V. Memphis & C. R. Co., 85. Norwood V. Riddle, 173. Nott V. Hill, 188. Nourse v. Pinch, 776. V. Gregory, 883, 884. Nowland v. Glenn, 771. Noyes v. Inland & Seabord Coasting Co., 339. V. Willard, 278. Noysomhed, The, 247. Nunn V. Nunn, 622. Nurse v. Bunn, 672. Nusbaum v. Emery, 394. V. Stein, 522. Nyburg v. Pearce, 953. Nye V. Slaughter, 936. O. Oakey v. Bend, 63. Oakley v. O'Neill, 191. Oberein v. Wells, 1015. O'Brien, Ex parte, 549, 566. V. Champlain Construction Co., 67. V. Elliot, 661. V. Heeney, 700. O'Callaghan v. Blake, 205. V. Cooper, 777. V. Murphy, 688. V. O'Callaghan, 549, 551, 556, 563. Ocean Ins. Co. v. Fields, 229. Ockenholdt v. Frohman, 519. O'Connell v. McNamara, 1016, 1017. O' Conner v. Starke, 368. V. Wilson, 174. O'Connor v. Cook, 645. V. Debraine, 510. O'Dell V. Hart, 437. O'Farrell v. O'Farrell, 679, 851. Offley V. Jenney, 18. Ogburn v. Dunlap, 474, 475. Ogilvie V. Heme, 193. Ogle V. Adams, 613, 647. V. BrandUng, 697. V. Koemer, 577. Oglesby v. Foley, 749. V. Pearce, 760, 761. O'Hara v. MacConnell, 164, 186, 219. V. Shepherd, 888, 894, 1040. O'Hare v. Leonard, 742. Ohio Cent. R. Co. v. Central Trust Co. of New York, 188, 189, 193, 196. Ohling V. Luitjens, 246. Ohlquest v. Farwell, 477. Oil Run Petroleum Co. v. Gale, 825. Olden V. Hubbard, 129. Oldershaw v. King, 448. Oldfather v. Zent, 474. Oldham Eboral, 891, 1015, 1025. V. Stonehouse, 794. Olds V. Regan, 85. Oliver v. Clarke, 29. V. Decatur, 258, 308, 351. V. Haywood, 105. V. Piatt, 142, 154. Oliver's Ex'rs v. Palmer, 127. Oliver Finnie Grocery Co. v. Boden- heimer, 755. Olmstead v. Distilling & Cattle Feed- ing Co., 483. Omaha, City of, v. Redick, 980. Omychund v. Barker, 334. O'Neal V. Garrett, 173. O'Neill V. Cole, 232. V. Perryman, 609, 610. 1132 TABLE OF CASES. [eefebenoes aee to pages.] Onge V. Truelock, 900. Onions v. Tyrer, 742. Ontario Bank v. Root, 328. V. Sehermerhorn, 409. V. Strong, 218. Oroutt V. Orms, 313. Ord V. Huddleston, 309. V. Noel, 711, 890, 1038, 1039. Oregon & Transcontinental Co. v Northern Pac. R. Co., 906. OrendorfE v. Tallman, 37. Organ v. Gardiner, 1015. Orient Ins. Co. v. Reed, 826. Ormond v. Hutchinson, 672. Ormsby v. Einstein, 462. V. Nicholson, 762. V. Palmer, 351. V. Union Pac. Ry. Co., 254. Orphan Asylum Soc. v. McCartee, 582, Orvis V. Cole, 907, Osborn v. Bank of United States, 158, 664. V. Heyer, 487. V. Taylor. 516. Osborne v. San Diego Land & Town Co., 977. V. Usher, 985, 1037. V. "Wisconsin Cent. R. Co., 73, 146. Osgood V. A. S. Aloe Instrument Co., 330, 334. V. Franklin, 74. V. Joslin, 448, 455. V. Maguire, 496. Osmond v. Tindall, 689. Oswald V. Givens, 958. Outhwite V. Porter, 187. Overton v. Searcy, 884. V. Stevens, 128. Ovey V. Leighton, 326, 359. Owen V. Apel, 826. V. Brien, 537, 543. V. Moore, 125. V. Thomas, 468, 473. Owens V. Crow, 86. V. Dove, 785, 1020. V. Owens, 642. V. Ranstead, 385, 387. Owings V. Hull, 137. V. Rhodes, 828. Owings' Case, 896, 919. Owsley V. Barbour, 869. Owyhee Land & Irrigation Co. v. Tautphaus, 400. Oxburgh V. Fincham, 927. Oxenham v. Esdaile, 374. Ozark Land Co. v. Leonard, 201, 325. ( Pacific Live-Stock Co. v. Hanley, 152, 242. Pacific Railroad v. Ketchum, 725, 734. Pacific Railroad of Missouri v. Mis- souri Pac. Ry. Co., 1006, 1008, 1009. Pacific Railway Commission, In re, 694. Pacific R. Co. V. Atlantic & P. R. Co., 144. V. Missouri Pac. Ry. Co., 169. Packard v. Stevens, 811. Paddock v. Palmer, 450. Page V. Brewsters, 468. V. McKee, 762. V. Page, 927. Paige V. Broadfoot, 333. Paine v. Lester, 496. V. Root, 760. Painter v. Harding, 880. Palk V. Clmton, 109, 419. Palmer v. Aylesbury, 685. V. Cowdrey, 166. v. Harris, 753, 756. V. Martindell, 1006. V. Rankins, 263. V. Sinniokson, 23. V. Walesby, 574. Pankey v. Raura, 642. Pannell v. Tayler, 511. Papin v. Goodrich, 417. Pardee v. De Cala, 707. Pardridge v. Morgenthau, 449, 450. Parish v. Marvin, 995. V. 'Sloan, 243. Park V. Johnson, 456. Parken v. Whitby, 708. Parker v. Baker, 459. V. Barker, 818. V. Blackboume, 167, 168. V. Browning, 25, 497. V. Carter, 104, 106. V. Cochran, 255. V. Downing, 750, 801. V. Ford, 871. V. Grant, 201, 203, 521. V. Judges of Circuit Court of Maryland, 1014. V. Leigh, 952. V. Logan, 720. V. Marco, 179. V. Morrell, 637. V. Nickerson. 28, 616. V. Parker, 275, 504, 898. V. Simpson, 241, 629. V. Stoughton Mill Co., 29. V. Wakeman, 529. V. Williams, 534. V. Winnipiseogee Lake Cotton & Woolen Co., 246, 586. Parker's Heirs v. Anderson's Heirs, 589. Parkes v. Gorton, 660. Parkhurst v. Kinsman, 906. V. Lowten, 251. V. Race, 734. Parkins v. Morris, 455. Parkman v. Welch, 658. Parkman's Adm'r v. Aicardi, 86. Parks V. Booth, 329. V. Jackson, 833. V. Jacob Dold Packing Co., 138. Pamell v. Price, 755, 767. Parott V. Chestertown Nat. Bank, 859. Parrish v. Hatchett, 31. Parrot v. Treby, 777. Parry v. Owen, 247. V. Rogers, 842. Parsons' v. Gumming 319. V. Greenville & C. R. Co., 294. V. Johnson, 419. V. Lyman, 70. V. Marye, 513. Parson's Adm'r v. Wilson, 117, 869, 870. Partee v. Kortrecht, 238. Partlow V. Moore, 811, 814. Partridge v. Haycraft, 96, 106, 373. V. Jackson, 116. V. Stocker, 690. V. Usbome, 711, 982, 987, 1038, 1040. TABLE OF CASES. 1133 [references aee to pages.] Pascall V. Scott, 686. Passumpsio Sav. Bank v. First Nat. Bank of St. Johnsbury, 962. Patch V. Ward, 1006. Paterson v. Bangs, 117. Paterson & Hudson R. K. Co. v. Jer- sey City, 238. Patrick's Heirs v. White's Heirs, 588. Patriotic Bank v. Bank of Washing- ton, 364. Patterson v. Ackerson, 643. V. Bakin, 474, 476. V. Ely, 466. V. Fagan, 686. V. Gaines, 628, 663. V. Hewitt, 129. V. Hopkins, 720. V. Ingraham, 190, 197. V. Miller, 519. V. Read, 785. V. Slaughter, 422, 711. V. Ware, 299. Pattison v. Hull, 952. V. Josselyn, 456, 753. Patton V. Dixon, 416. V. Glatz, 144. Paul V. Prierson, 985. V. Virginia, 30. Pawlet V. Bishop of Lincoln, 700. Paxton V. Douglas, 296. Payne v. Baxter, 26. V. Berry, 235, 254, 870. V. Compton, 304. V. Cowan, 957. V. Frazier, 379. V. Hathaway, 243. V. Hook, 61. V. Kansas & A. V. R. Co., 527. Paynes v. Coles, 661, 684. Peabody v. Flint, 56. V. Kendall, 645. V. New England Water Works Co., 27. V. Westerly Waterworks, 149. Peacham v. Daw, 395, 397. Peacock v. Bedford, 372. V. Monk, 63. V. Terry, 128, 653. Peak V. Pricer, 19. V. Shasted, 219. Peake v. Highfleld, 629. Pearce v. Crutohfleld, 532. V. Pearce, 20. V. Piper, 44. V. Rice, 310. Pearse v. IDobinson, 314. V. Green, 769. Pearson v. Darrington, 101. V. Knapp, 625. V. Northern R. Co., 628. V. Parson, 246. V. Pearson, 776. V. Tower, 238. V. Treadwell, 368. V. Ward, 679, 849. Pease v. Pease, 862, 864. Peay v. Duncan, 308. Peck V. Crane, 519. V. Hibbard, 138. V. Osteen, 362. Pedrick v. White, 887, 888, 906-908. Peebles v. Boggs, 876. Peel V. Peel, 571. Peer v. Cookerow, 918, 920, 922-924, 934, 1023, 1024, 1026. Pegs V. Davis, 371. Peipho V. Peipho, 89. Peirce v. West, 379, 429, 430. Pelham v. Edelmeyer, 104. Peltier v. Peltier, 671. Pember v. Mathers, 647, 667. Pemberton v. Pemberton, 628, 703. V. Topham, 678. Pembina Consolidated Silver Min. & Mill. Co. V. Pennsylvania, 30. Pence v. Garrison, 639. Pendlebury v. Walker, 239. Pendleton v. Evans, 187. V. Fay, 905, 922, 932, 933, 941-943, 945, 1021-1023, 1038, 1040. Penfold V. Nunn, 226, 238, 405. V. Ramsbottom, 262. Penn v. Fogler, 110, 734. Perm Mut". Life Ins. Co. v. Union Trust Co. of San Francisco, 826. Pennebaker v. Wathan, 104, 120. Pennell v. Lamar Ins. Co., 613. Pennington v. Beechey, 305. Pennoyer v. Neff, 170, 171, 197. Pennsylvania R. Co. v. National Docks & New Jersey J. C. Ry. Co., 591. Pennybacker v. Switzer, 728. Pentlarge v. Pentlarge, 314. People V. Ah Sam, 435. V. Ames, 174. V. Baker, 566. V. Ball, 565. V. Becker, 463. V. Brower, 453, 553. V. Brown, 566. V. Court of Oyer & Terminer of New York, 648. V. Craft, 552. V. Diedrich, 547, 552, 564, 571. V. Dwindle, 673. V. Fidelity & Casualty Co. of New York, 31. V. Freer, 560, 561. V. Horton, 571. V. Kearney, 550. V. Kelly, 572. V. Lawrence, 535. V. McClellan, 384. V. MoLain, 593. V. Mariposa Co., 158. V. Morrill, 145. V. O'Brien, 550. V. Owens, 571. V. Pearson, 564. V. Pirfenbrink, 666, 567. V. Prendergast, 571. V. Rathbun, 468, 471. V. Restell, 850. V. Spalding, 459. V. Stapleton, 671. V. Sturtevant, 550. V. Teftt, 559. V. Turner, 556, 666, 672. V. Van Buren, 650. V. Weigley, 465, 497, 650. V. Williams, 138, 386. V. Wilson, 549, 564, 560, 661. 564. People's Nat. Bank v. Kerm, 883. People's Sav. Bank v. Look, 828. Peoria, D. & E. Ry. Co. v. Pixley, 85. 235. Perigal v. Nicholson, 690. Perine v. Dunn, 714. Peris V. Thomas, 167. Perkins, In re, 647, 548, 565. 1134 TABLE OF CASES. [EErEEENCES AEE TO PAGES.] Perkins v. Center, 156. V. Collins, 520, 521, 527. V. Hendiyx, 13, 14, 871. V. Nichols, 697. V. Perkins, 946, 947. V. Banders, 120. Perrine v. Broadway Bank, 452, 551. Perry v. Barker, 391. V. Godbe, 80. V. JenKlns, 934, 943. V. Oriental Hotels Co., 483. V. Phelips, 995, 1008, 1020-1022, 1038, 1039. V. Simpson Waterproof Mfg. Co., 472. V. Sylvester, 710. V. "Weller, 208. Person v. Nevitt, 583. Pestel V. Primm, 989. Petersburg Sav. & Ins. Co. v. Delia- tore, 720, 763. Peterson v. Gresham, 501. V. Grover, 651. V. Vann, 720. Pethtel V. McCulIough, 89, 590, 974. Petition of Griswold, In re, 511. Petrie, Ex parte, 552, 556, 557. V. People, 551, 556, 557. V. Shoemaker, 24. Petrie's Ex'rs v. Wright, 658. Pettebone v. Everhart, 840, 846. V. Lehigh Valley Coal Co., 841, 842. Pettit V. Candler, 322. V. Jennings, 663. Petty V. Fogle, 150. Pfanschmidt v. Mercantile Co., 785. Pfeltz V. Pteltz, 780, 782, 783, 989. Philadelphia Trust, Safe Deposit & Ins. Co. V. Scott, 343. Phelan v. Hutchinson, 621. Phelps V. Elliott, 14, 61, 311, 352, 409 V. Garrow, 270. V. Heaton, 218. V. McDonald, 262. V. Phelps, 166. V. Sproule, 302, 928, 933, 1026, 1033, Philadelphia, City of, v. Keyser, 321. Philadelphia Fire Ins. Co. v. Central Nat. Bank of Chicago, 883. Philhower v. Farley, 209. Philips V. Blagge, 202. V. Carew, 678, 843, 849, 850. V. Derbie, 939. V. Lahghom, 312. Phillips V. Allen, 150. V. Blatchford, 397. V. Bucks, 859. V. City of Detroit, 534-536. V. Edsall; 628, 741, 968, 969. V. Overton, 358. V. Phillips, 18, 460. V. Prevost, 318, 320, 880, 881. V. Sohooley, 125. V. Shaw, 249. V. Thompson, 657, 972. V. Welch, 547, 567, 571-573. V. Wesson, 79. V. Wormley, 575, 581, 714. Phillips' Appeal, 693. Phoenix Ins. Co. v. Wulf, 174. Phoenix Mut. Life Ins. Co. v. Grant, 494. Piatt V. Oliver, 86. v. Vattier, 650. Pickanqe's Trust, In re, 446. Pickard v. Matheson, 754. v. Mattheson, 756, 780. Pickens v. Harper, 652. Pickens' Bx'rs v. Knisely, 264. Pickering v. Day, 667. V. Rigby, 226, 227, 403, 405. Pickett V. Chilton, 379. V. Ferguson, 570. V. Gore, 334. V. Wallace, 386. Pickford v. Hunter, 294. Pickle v. Pickle, 813. Picquet v. Swan, 587. Piedmont Land Improvement Co. v. Piedmont Foundry & Machine Co , 298. Piedmont & Arlington Life Ins. Co. v. Maury, 293, 578. Pier V. Prouty, 639. Pierce v. Crompton, 30. V. Feagans, 294, 329. V. McClellan, 327. V. O'Brien, 496. V. West, 382. Piercy v. Beckett, 417. Piers V. Latouche, 482. Pierson v. David, 76. V. Hendrlx, 465. V. Ryerson, 339. Pieters v. Thompson, 391. Pigg V. Corder, 122. Piggott V. Snell, 164, 166, 172. V. Williams, 949. Pignolet V. Daveau, 216. Pike V. Ilnderhill's Adm'r, 953. Pile V. McBratney, 124. Pilkington v. Himsworth, 348, 353. V. Wignall 891. Pillow V. Wade, 738. Pincers v. Robertson, 333. Pindall v. Trevor, 955. Pingree v. Coffin, 624, 1026. Pinkham v. Cockell, 460. Pinkney v. Jay, 977, 979, 982. Pinkston v. Taliaferro, 410. Pinkus v. Peters, 891. Pinnell v. Boyd, 343, 671. Pinner v. Knights, 574. Pipkin V. Haun, 755. Pirie v. Iron, 851. Pitt V. Arglass, 1000, 1002. V. Davidson, 560. V. Davison, 558. Pittman v. Lamb, 642. V. McClellan, 203. Pitts V. Short, 240. Pittsburg, C, C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 982, 1007. Pittsburgh Reduction Co. v. Cowles, Electric Smelting & Aluminum Co., 785. Pittsburgh & Alleghany Drove Tard Co.'s Appeal, 586. Pixley V. Gould, 84. Piano Mfg. Co. v. Rasey, 213. Planters' Bank of State of Mississippi v. Courtney, 715. Planters' & Merchants' Bank v. Lauc- heimer, 543. Planters' & Merchants' Mut. Ins. Co. V. Selma Sav. Bank, 414. Piatt V. Griffith, 201. V. New York & S. B. Ry. Co., 495. Platte Valley State Bank v. National Live Stock Bank, 812, 813. Pleasanton v. Raughley, 665. TABLE OF CASES. 1135 [befebences abb to pages.] Pleasants v. Glasscock, 144. V. Ross, 645. Plimpton V. Winslow, 179. Plitt, Ex parte, 773. Plum V. Morris Canal & Banking Co. 71. Plumb V. Bateman, 866. Plummer v. May, 861, 878, 879. Plunket V. Penson, 40, 879. Plunkett V. Kelly, 74. Plymouth v. Bladon, 389. Plymouth v. Hall, 23. Pogson V. Owen, 74. Poindexter v. Burwell, 762. Poling V. Huffman, 614, 617, 622. Polk V. Clinton, 927. V. Rose, 119. Pollard V. Southern Fertilizer Co., 118. Pond V. Vermont Valley R. Co., 245. Poole V. Nixon, 984, 1021. Poor V. Carleton, 537, 541. Pope V. Bish, 424. V. Fawles, 235. V. Leonard, 158. Portarlington v. Darner, 438. V. Soulby, 284, 326, 881. Porter y. Cain, 410. V. Clements, 74. V. Cox, 947. V. Hanson, 205. V. Holt, 466-468. V. Sabin, 25. V. Spencer, 500. V. Vaughan, 747, 752. Portingdon v. Tarbock, 835. Portland, City of, v. Oregonian Ry. Co., 544. Portoues v. Badenoch, 84. V. Holmes, 625. Portsmouth, In re, 696. V. Fellows, 225. Portwood V. Huntress, 474. Post V. Bank of Utica, 128. V. Beacon Vacuum Pump & Elec • trical Co., 410. V. Boardman, 411, 861, 872. V. Toledo, C. & St. L. R. Co., 694. Potior y- Barclay, 892. Pott V. Gallini, 578, 1016. Poiter V. "Wilson, 706. Potts V. Trotter, 618. Poupet V. Windsor, 707. Powell V. Batson, 784. V. Clement, 198. V. Com., 176. V. Kane, 442, 463. V. Manson, 638, 644, 657. V. Parker, 620. V. Spaulding, 71. Powles V. Dilley, 665. Poycr V. Village of Dea Plalnes, 520. Poyntz V. Reynolds, 387. Pratt V. Bacon, 417. V. Bank of Windsor, 163. V. California Min. Co., 306. V. Pratt, 385, 386. V. Rice, 436, 437. Prentice v. Duluth Storage & For- warding Co., 145. V. Kimball, 296. Prentiss Tool & Supply Co. v. God- chaux, 344. Press y. Woodley, 62. Pressley v. Harrison, 480. Preston v. Carr, 407. V. Dunn, 219. Preston V. Hodgen, 596. V. Kindrick, 176. V. Lament, 178. V. National Exchange Bank of Baltimore, 699. V. Smith, 238. Prestwood v. Watson, 466, 467. Prettyman v. Barnard, 367. Prevost V. Gratz, 785. Price V. Betts, 696. V. Carver, 730. V. Crone, 218. V. James, 861. V. Lytton, 672. V. Tyson, 871, 880, 883, 885. V. Ward, 214. Prichard v. Gee, 678. Priddy v. Hartsook, 391. Primmer v. Patten, 111, 866. Prince v. Cutler, 600, 606, 613, 616, 617, 624. V. Skillin, 138. Princess of Wales v. Earl of Liverpool, 226, 227, 401. Printup, Ex parte, 77, 79. Prior V. Hembrow, 595. V. White, 228. Pritchard v. Draper, 769. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 628, 630. Proprietors of Mills on Monatlquot River v. Braintree Water Supply Co., 148. Protection Life Ins. Co. v. Palmer, 209. Provident Sav. Life Assur. Soc. v. Loeb, 832. Prudden v. Lindsley, 647. Prudential Assur. Co. v. Thomas, 816. Pruen v. Lunn, 937. Prynn y. Edwards, 295. Pryor, In re, 549. Pue V. Pue, 894, 952. Pullman's Palace Car Co. v. Central Transportation Co., 575. Pulteney V. Shelton, 168. Purcell V. McNamara, 690, 708, 709. V. Miner, 981. Purdie v. Jones, 782. Purdy V. Henslee, 576, 577, 962, 965, 966. Purefoy v. Purefoy, 154. Purvis V. Woodward, 667, 670. Pusey V. Desbouvrie, 302. V. Wright, 651, 657, 659. Pusey & Jones Co. v. Miller, 818. Puterbaugh v. Elliott, 263, 264. V. Smith, 693. Putnam v. Clark, 982, 983, 995. V. Day, 738, 1001, 1003. V. New Albany, 353, 957, 968. V. Ritchie, 607. V. Sweet, 76. Putney v. Whitmire, 893. Pyles V. Riverside Furniture Co., 144. Pyncent v. Pyncent, 689. Q, Quaokenbush v. Leonard, 917, 923. V. Van Riper, 340, 537. Quarrell v. Beckford, 393, 396. Quarrier v. Carter's Representatives, 738 781 Quay'le v. Guild, 595. 1136 TABLE OF CASES. [KEFEEENCES ABE TO PAGES.] Quick V. Lemon, 958. V. Lilly, 980, 997. Quidnick Co. v. Chaiee, 389. Quigley v. Roberts, 198. Quincy v. Foot, 200, 202. Quinn v. Green, 814. V. McMahan, 122. V. Rawson, 457. R. Rabberman v. Hause, 124. Radcliff V. Rowley, 128. Radford v. Folsom, 293. Radge v. Berner, 749, 750. Eaelble v. Goebbel, 330. Rafferty v. Central Traction Co., 149 Ragland v. Broadnax, 974. Ragor V. Brenock, 956. Railroad Co., Ex parte, 722. Railway Register iVTfg. Co. v. North Hudson Co. Railroad Co., 784, 792. Raines v. Jones, 424. Eains v. Rainey, 773. Ralls V. Ralls, 578. Ralston v. Lahee, 219. V. Sharon, 1008. Rambo v. Rambo, 242. Ramey v. Green, 893, 894. Ramklssenseat v. Barker, 349. Ramsay v. Joyce, 504. Ramsdell v. Maxwell, 761. Randall v. Gumey, 179. V. Howard, 298. V. Morrell, 538. V. Mumford, 1031. V. Payne, 235, 1001. V. Peckham, 783. Randle v. Boyd, 76. Randolph v. Daly, 152. V. Dickerson, 945. Randolph's Appeal, 699. Randolph's Bx'r v. Randolph's Bx'rs, 711, 982. Rankin v. Jones, 139. V. Maxwell's Heirs, 655. V. Rankin, 603. Ransom v. Davis, 610. V. Stonington Sav. Bank, 349. V. Winn, 80. Ransom's Ex'rs v. Geer, 124. Raphael v. Birdwood, 368. Rapier v. Gulf City Paper Co., 140. Rashleigh v. Master, 774. Rathbone v. Rathbone, 387. Rattenbury v. Fenton, 792. Raub V. Otterback, 214. Rawitzer v. Wyatt, 294. Rawlings v. Neal, 387, 388. Rawlings' Ex'r v. Rawlings, 720. Rawlins v. Dalton, 307. V. Powel, 794. Rawson v. Rawson, 548, 555, 560, 571, 572. Ray V. Connor, 444. V. Home & Foreign Investment & Agency Co., 949, 955. V. Oliver. 763. Ray's Adm'r v. Womble, 237, 416. Read v. Bermett, 40. V. Brookman, 87. V. Consequa, 349, 544. V. Franklin, 984. Reade v. Sparkes, 346. V. Woodrotfe, 356. Reading v. Stover, 241. Reavis v. Cowell, 462. V. Reavis, 308, 309, 313. Rebhan v. Fuhrman, 393. Reboul's Heirs v. Behrens, 522. Receiver of State Bank v. First Nat. Bank of Plainfield, 435, 444. Rector v. Fitzgerald, 989. V. Rector, 664. Reddick v. State Bank, 195, 198. Redfield v. Gleason, 953. Redhead v. Baker, 741. Redus V. WofCord, 464. Reece v. Darby, 696, 712. V. Reece, 752. Reed v. Axtell, 642. V. Cumberland Mut. Fire Ins. Co., 232, 320, 340, 341, 356, 358. V. Curry, 202. V. Johnson, 245. V. Jones, 610. V. Kemp, 699, 965. V. Stanly, 989, 1007. V. Wilson, 24. Reedy v. Millizen, 423. Reedy Elevator Co. v. American Gro- cery Co., 461. Rees V. Evans, 344, 345. Reese, In re, 533, 536. V. Mahoney, 466. V. Reese, 23, 243, 663. V. Walker, 465. Reeves v. Keystone Bridge Co., 752, 784, 785, 788. Reg. V. France, 688. Reid, Ex parte, 135, 136. V. Bamhart, 704. V. Langlois, 403. V. Stuart's Ex'r, 916, 921, 922. Reilly v. Reilly, 575, 576. Reinhart v. Sutton, 27. Reissner v. Anness, 277. Reist V. Heilbrenner, 388. Reitz V. Bennett, 614. Remley v. De Wall, 547. Remsen v. Remsen, 596, 602, 606, 608, 616. Renfro v. Goetter, 79. Renner v. Marshall, 295. Reno's Adm'r v. Harper, 204. Renwick v. Wilson, 413, 520, 521. Repass v. Moore, 720. Requa v. Holmes, 917. Respass v. McClanahan, 711. Respublica v. Newell, 557. Rex V. City of Lyme Regis, 553. V. Emden, 461. V. James, 566. V. TuUock, 927. V. Windham, 569. Reybold v. Herdman, 147, 418. V. Jefferson, 628. Reynes v. Dumont, 586. Reynolds v. Crawfordsville First Nat. Bank, 697. V. Fleming, 158. V. Florida Cent. & P. R. Co., 979, 983, 990, 995, 996, 998, 1000. V. Lawrence, 387. V. Mitchell, 539. V. Stockton, 734. Rhino V. Emery, 273, 276, 278, 280. Rhoads v. Rhoads, 19, 219. Rhodes v. Cousins, 502, 504. V. Missouri Savings & Loan Co., 29. Rhode Island v. State of Massachu- setts, 215, 276, 309, 312, 380, 425, 971. TABLE OF CASES. 1137 [eefeeences abb to pages.] Eibon V. Chicago, R. I. & P. R. Co., 58. Rlcardo v. Garcias, 300. Rice V. Durham Water Co., 81. V. Biseman, 735. V. Hale, 117, 502. V. Rice, 607. V. Small, 552. Rich V. Thomas, 539. Richards v. Bayly, 951. V. East Tennessee, V. & G. Ry. Co., 19. V. Lake Shore & M. S. Ry. Co., 586. V. Mackall, 129, 306. V. People, 25. V. Salter, 815. V. "West, 535. Richardson v. Loree, 239, 1006, 1008. V. Musser, 467. V. Opelt, 293. V. Richardson, 433. V. Sheehan, 459. V. Wright, 608. Richers v. Stilman, 167. Rlchman v. Donnell, 958. Richmond v. Atwood, 718, 719. V. Brookings, 174. V. Irons, 409. V. Tayleur, 731, 986. Richter v. Jerome, 52, 838, 850, 852. V. Union Trust Co., 851. Ricker v. Powell, 983, 988, 995, 996. Ricketts v. Chicago Permanent Build- ing & Loan Ass'n, 739, 740, 760. V. Mornington, 571. Ridahock v. Levy, 408. Riddle v. Motley, 241. Riddle's Estate, 979. Ridgely v. Bond, 89, 919, 924. Ridgely Nat. Bank of 'Springfield V. Fairhank, 432. Ridgeway v. Darwin, 659, 660. V. Toram, 888, 1038, 1040.- Ridifer v. O'Brien, 616. Ridings v. Johnson, 13. Riegel v. American Life Ins. Co., 671 Riely v. Kinzel, 934. Rigden v. Martin, 193. Riggs V. Armstrong, 956. V. Lockwood, 738. Rigney v. De Graw, 110. Riker v. "Vaughan, 175. Rindskopf v. Platto, 853. Ring V. Lawless, 153. Ringgold V. Emory, 427. V. Patterson, 628, 630. V. Ringgold, 661. V. Stone, 131, 314. Ringgold's Case, 725. Ringwalt v. Ahl, 631, 636. Rinker v. Streit, 31. Rio Grande Irrigation & Colonization Co. V. Gildersleeve, 386. Riopelle v. Doellner, 853. Ripley v. Morris, 227. V. Moysey, 776. Risher v. Thomas, 387. Ritch V. Eichelberger, 144. Ritchie v. Aylwin, 260. V. Burke, 1009. V. McMullen, 421, 953. V. Sayers, 62, 140. Rives V. Walthall's Ex'rs, 411. Equity 72. Roach V. Chapin, 187, 266. V. Clark, 761. V. Glos, 697. V. Hulings, 116. Robb V. Irwin's Lessee, 219. Bobbins v. Abrahams, 346, 350. V. Davis, 401, 402. V. Hanbury, 696, 702, 713, 714. Roberdeau v. Rous, 239. Roberts v. Anderson, 536, 538, 684. V. Barker, 610.' V. Dix, 255. V. Dryden, 639. V. Guild, 149. V. Clayton, 127. V. Edmundson, 783. V. Pahs, 228. V. Kingsly, 982. V. Peavey, 960. V. Roberts, 773. V. Starke, 150. V. Stigleman, 410, 432. V. Walker, 777. Roberts' Bx'r v. Dale, 595. Roberts' Widow & Heirs v. Stanton, 219. Robertson v. Baker, 79. V. Bingley, i.36. 318, S22. V. Graham, 225. V. Labbock, 271. V. McCoUum, 1002. V. Miller, 192. V. Parks, 654. V. Stevens, 152. V. Tapscott's Adm'r, 536. V. Winchester, 194, 196. Robins v. Swain, 956. Robinson, Ex parte, 547, 549. v. Baugh, 117, 148. V. Cathcart, 539, 659. V. Howe, 35. V. Jefferson, 661, 670. V. Mandell, 340. V. Owen, 200, 438, 454. V. Robinson, 986, 1017. V. Rudkins, 749, 976. V. Sampson, 785. V. Satterlee, 436, 589. V. Scotney. 660. V. Smith, 240. V. Stewart, 342. V. Taylor, 780. V. Thompson, 236. V. Woodgate, 340, 341, 880. Robison v. Robison, 85. Robson V. Cranmell, 203. V. Cranwell, 727. V. Doyle, 866, 876. Eoby V. Chicago Title & Trust Co., 189 V. Cossitt, 237. V. Title Guarantee & Trust Co., 388, 448, 449, 452. Roche V. Morgell, 270, 272, 303, 879. Rochfort V. Ely, 801. Rockman v. Ackerman, 212. Rodgers v. Dibrell, 989. V. Nowill, 647. V. Rodgers, 413, 426, 427, 431, 658. Rodney v. Hare, 382. V. Seelye, 205. Roe V. Gudgeon, 394. Roemer v. Neumann, 726. V. Simon, 329, 782, 783. Rogan V. Walker, 199. 1138 TABLE OF CASES. [eefebences aee to pages.] Rogers v. Bullock, 691. V. Cruger, 332. V. Dibble, 690. V. Greenwood. 467, 468. V. Hosack's Bx'rs, 540. V. King-, 293. V. Marshall. 793. V. McLean, 214. V. Moor, 411. V. Paterson, 438, 920. V. Rathbun, 128. V. Riessner, 960. V. Riley, 29. V. Rogers, 52, 410, 747, 753, 755, 756 1016. V. Ross, 776. V. Toole, 443. V. Traders' Ins. Co., 62, 652. V. Vosburgh, 389, 391, 392. Rogers Locomotive & Machine Works V. Brie Ry. Co., 513, 516. Rogerson v. Whittington, 637. Roman v. Dimmick, 391. Romeilly v. Gilbert, 389. Rondeau v. Wyatt, 864. Rood V. Whorton, 55. Eoosevelt v. Bllithorp, 403. Root V. "Woolworth, 895, 1015, 1029. Rootes' Bx'x v. Tompkins' Trustees, 205. Rorback v. Dorsheimer, 104. Rorer Iron Co. v. Trout, 326. Rorke v. Russell, 536. Rose V. Gannel, 842, 870. V. Gibson, 267. V. King, 263. V. Rose, 419. V. Woodruff, 192, 193, 698, 726. Ro.?er V. Slade, 263. Ross V. City of Ft. Wayne, 895, 1029, 1030. V. Blizabeth-Town & S. R. Co., 527 V. Griffin, 448. V. Hatfield, 916. V. Pynes, 640. V. Ramsey, 188. V. Ross, 242, V. Titsworth, 438. Rothschild v. Knight, 212. V. Reg., 949. Rothwell V. Rothwell, 394, 395. Roughan v. Morris, 23. Roundtree v. Gordon, 669. Rouse V. Bowers, 631. Rouskulp V. Kershner, 279, 311, 316. Roussin V. St. Louis Perpetual Ins. Co., 881. Rout V. Ninde, 385, 388. Rowan v. Sharp's Rifle Co., 955. Rowbotham v. Jones, 148. Rowe V. Gudgeon, 366. V. Matteson, 829. V. Table Mountain Water Co., 175. V. Wood, 276. V. , 677, 679, 849, 850. Rowland v. Garman, 700. Rowley v. Adams, 605. V. Corporation of Bridgewater, 183. V. Ridley, 182, 686. V. Van Benthuysen, 516. V. Williams, 311, 315. Rowley's Appeal, 344. Rowton V. Rowton, 629. Rozier v. Williams, 385. Rubber Co. v. Goodyear, 169. Rubel V. Beaver Falls Cutlery Co., 177. Ruckersville Bank v. Hemphill, 698. Ruckman v. Decker, 297. Rude V. Whitchurch, 672. Rue V. Meirs, 18. RufEner v. Hewitt, 596. Rufford v. Bishop, 618. Ruggles v. Eddy, 424. Ruhlig V. Wiegert, 697. Runk V. St. John, 29. Rusling V. Bray, 604, 607. Russell V. Ashby, 503. V. Chicago '3?rust & Sav. Bank, 475, 476. V. Clark's Ex'rs, 884. V. Dickeschied, 853. V. Bast Anglian Ry. Co., 497. V. Falls, 640, 641. V. Garrett, 153. V. Lathrop, 192. V. McDougall, 754. V. Sargent, 749. V. Sharp, 942. V. Sharpe, 218. V. Waite, 198. Russell's Heirs v. Craig's Devisee, 918, 923, 924, 1023. Russey v. Walker, 342. Rust v. Blectric Lighting Co., 719. v. Frothingham, 214. v. Mansfield, 664. Rutherford v. Alyea, 586. V. Dawson, 394. Rutter V. Tallis, 495. Ryan v. Anglesea R. Co., 341, 358. V. Lamson, 814. V. Lander, 176. V. Seaboard & Roanoke R. Co., 294, 517. Ryckman v. Parkins, 773. Ryder v. Bateman, 226, 227, 405, 480, 481, 482. V. Topping, 22. Ryers v. Hillyer, 461. Ryerson v. Adams, 123. V. Bldred, 979, 980. Ryland v. Green, 918. Rylands v. Latouche, 891, 942, 1015, 1025. Rynerson v. Allison, 642. Ryves v. Ryves, 116, 121, 247, 863. S. St. Clair v. Cox, 165. St. John V. Hubbard, 550. V. Sewall, 549. St. John's College v. Carter, 536. St. Joseph & D. C. R. Co. v. Smith, 26. St. Louis Car Co. v. Stillwater St. Ry. Co., 207, 210. St. Louis, I. M. & S. Ry. Co., Ex parte, 176. V. State, 177. St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 828, 830. St. Louis Min. & Mill. Co. v. Montana Min. Co., 530. St. Regis Paper Co. v. Santa Clara Lumber Co., 529. Sachsel v. Farrar, 826. Sackvill v. Ayleworth, 838, 839, 862. Sadler v. Taylor, 86, 135. Saffold V. Home, 656. Safford v. People, 534. Sage V. Memphis & Little Rock R. Co., 481. Sagory v. Bayless, 749. TABLE OF CASES. 1139 [RBTEBENOES AEE OX) PAGES.] Salamone v. Keiley, 712. Sale V. Fike, 205. V. McLean, 956. Salisbury v. Cecil, 403. V. Miller, 434. Salkeld v. Science, 236. Sallee v. Duncan, 329. Salmon v. Clagett, 334, 671, 880, 881. V. Smith, 663, 665. Salsbury v. Ware, 666. Salters v. Tobias, 275. Saltmarsh v. Bower, 470, 880. V. Hockett & Knoxville Iron Co., 345 Saltus V. Tobias, 271, 278, 289. Salvidge v. Hyde, 252. Sammis v. L'Bngle, 812, 828, 829. Samuda v. Furtado, 934. Samuel v. Wiley, 500, 503, 605. Sanborn v. Adair, 671. V. Kittredg-e, 104. Sand Creek Turnpike Co. v. Robbing, 117. Sanderlin v. Sanderlin, 339. Sanders v. King, 273, 278, 281. V. Murney, 258. V. Sanders' Ex'r, 699. ■Sandford v. Paul, 710. V. Wright, 389. Sandusky v. Faris, 362, 368. Sandwich Mfg. Co. v. Earl, 294. Sanford v. Cloud, 953. V. Sinclair, 488. Sang Lung v. Jackson, 146. Sanger v. Upton, 54. Sanitary Reduction Works v. Califor- nia Reduction Co., 515. Saratoga County Sup'rs v. Degoe, 152. Sarey v. Smith, 420. Sargeant v. i'irst Nat. Bank of East- on, 584. V. State Bank of Indiana, 221. Saril V. Payne, 461. Sarter v. Gordon, 234. Satterthwaite v. Marshall, 587, 701. Satterwhite v. Davenport, 366. Saum V. Stingley, 978. Saumarez v. Saumarez, 70. Saunders v. Allen, 329. V. Leslie, 311. V. Savage, 259, 981. Savage v. Benham, 342. V. Berry, 193. v. Carroll, 708, 731. V. Carter, 968. V. Johnson, 984. V. Smalebroke, 236. V. Worsham, 120. Savery v. Dyer, 520. Savin, Ex parte, 569. Savings Institution v. Makin, 2. Savings & Loan Ass'n v. Davidson, 669. Savings & Loan Soc. v. Davidson, 671. Sawyer v. Campbell, 410. V. Gill, 169. V. Sawyer, 169, 171. Sawyers v. Sawyers, 664, 665. Saxon v. Barksdale, 239. Saxton V. Davis, 142. V. Stowell, 581. Sayle v. Graham, 912. Saylor v. Mockbie, 350, 570. V. Taylor, 384. Saylor's Appeal, 575, 643. Sayre v. Elyton Land Co., 1006. V. King, 989. Scaife v. Scaife, 648. Scales V. Nichols, 795, 968. Scammon v. City of Chicago, 163. Scanlan v. Scanlan, 326. Scarlett v. Hicks, 212. Scarritt Furniture Co. v. Moser, 477. Schack V. McKey, 232, 480, 481. Schaefer v. Wunderle, 981, 982, 995, 996. Schaeffer v. Weed, 380. Schaller v. Chicago & N. W. Ry. Co., 469. Scheafe v. Larimer, 55. Schenck v. Peay, 89. Schermerhorn v. L'Espenasse, 544. V. Mahaffle, 724, 735. Schieffelin v. Stewart, 616. Schilcer v. Brock, 118. ■Schmidt v. Dietericht, 65, 861. V. Oregon Gold Min. Co., 734, 735. Schnadt v. Davis, 601, 614, 615. Schneider v. Seibert, 747, 821. Schnell v. Clements, 476. Schofleld V. City of Lansing, 149. v. Horse Springs Cattle Co., 187, 201. School Dist. No. 1 of Grand Haven v. Weston, 813, 815. Schoonhoven v. Gott, 210. Schoonmaker v. Gillett, 557. Schroeder v. Frey, 469. Sohroeppel v. Redfield, 870. Schuchardt v. People, 592. Schulenberg, Ex parte, 180. Schulenberg-Boeckeler Lumber Co. v. Town of Hayward, 72. Schultz V. Phenix Ins. Co. of Brook- lyn, 470, 471. Schumann v. Helberg, 604. V. Schumann, 465. Schuster v. Rader, 1006. Schwab v. Mabley, 211. Schwartz v. Duss, 620. V. Sears, 605, 618. V. "Wendell, 281, 302, 303, 659. Schwerdtle v. Placer County, 138. Scott V. Becher, 482. V. Bennett, 83. V. Calvit, 71, 261. V. Clarkson's Ex'x, 382. V. Cook, 698. V. Davis, 410. V. Grant, 423, 969. v. Hume, 329. V. McCann, 687, 688. V. McFarland, 262. V. Milliken, 952. V. Nesbit, 128. Scrafleld v. Sheeler, 202. Screven v. Clark, 27. Scrimeger v. Bucchannon, 73. Scrivener's Adm'r v. Scrivener's Ex'rs, 613. Scruggs v. Scruggs, 176. Scudder v. Voorhis, 205. Scull V. Reeves, 322. Sea Ins. Co. v. Day, 382, 383, 579, 581. V. Stebbins, 462, 481. Seals V. Robinson, 104. Sealy v. California Lumber Co., 211. Seamans v. Burt, 651. Searles v. Jacksonville, P. & M. R. Co., 77. Searls, In re, 693. Seattle, L. S. & E. Ry. Co. v. Union Trust Co., 212, 466, 470. 1140 TABLE OF CASES. [EEFEEENCES ABE TO PAGES.] Sebring-s Adm'r v. Sebring's Adm'r, 684. Secor V. Singleton, 554, 889, 896. Secrist v. Petty, 138. Security Trust Co. v. Dodd, 28. V. Tarpey, 420. Seddon v. Connell, 130. Sedgwick v. Cleveland, 64, 894, 896, 897, 943, 946-948, 1030. Seebor v. Hess, 534. Seeley v. Boehm, 156, 415. V. Price, 267. Seevers v. Clement, 294. Segard v. Sheffield, 654. Segee v. Thomas, 169. Seidel v. Peschkaw, 459. Selfred v. People's Bank, 279. Selden v. Vermilya, 514. Sellers v. Dawson, 585. Sellman v. Bowen, 703. Sellon V. Lewen, 313. Selz V. First Nat. Bank of Ft. Atkin- son, 754. Seinm.es v. Boykin, 431. V. Mott, 391. Sample v. Lee, 178. V. Murphy, 853. Servis v. Beatty, 327. Seton V. Slade, 375. Settlemier v. Sullivan, 166. Sewing-Machine Co. v. Dunbar, 979, 982. Seymour v. Bailey, 294, 461. v. De Lancey, 630. V. Edwards, 41. V. Long Dock Co., 381, 408, 426. V. Phillips & Colby Construction Co 387 V. White County, 982, 983. Shackell v. Macaulay, 253, 845. Shaffer v. Trimble, 211. Shaft v. Phoenix Mut. Life Ins. Co., 435, 444. Shaftesbury v. Arrowsmith, 403. Shainwald v. Davids, 48, 932. v. Lewis, 234, 934, 1015. Shannahan v. Stevens, 749, 750. Shannon v. Fechheimer, 119. V. Hanks, 483, 487. ■Shapira v. D'Aroy, 629. Sharon v. Hill, 294, 314, 549. V, Terry, 939. Sharp V. Ashton, 413. V. Carlile, 325. V. Pike's Adm'r, 957. V. Sharp, 877. V. Shenandoah Furnace Co., 1003. V. Wyckoff, 715. Sharpies v. Sharpies, 776. Shattuck V. State, 571. Shaw V. Bill, 909. V. Bumey, 165. V. Chester, 815, 818-820, 825. V. Coster, 117, 813, 814, 816-818, 825, 826. V. HiU, 265. V. Lindsay, 689. V. Lindsey, 686, 710. V. Shaw, 403. Shea's Appeal, 708, 709. Sheehy v. Muskerry, 799. Sheets v. Selden, 127. Sheffey v. Bank of Lewisburg, 782. ShefiBeld v. Buckingham, 730. Sheffield Furnace Co. v. Wltherow, 255. Sheffield Water Works v. Teomans, 152. Sheffield & B. Coal, Iron & Railway Co. V. Gordon, 614, 616. V. Newman, 84. ■Shehan v. Glynn, 403. Shelby v. Smith's Heirs & Executors, 954. Sheldon v. Aland, 986, 1006. V. Harding, 688. Shelley v. , 677, 678, 849. Shelton v. Berry, 457, 464. V. Van Kleeok, 1001. Shenandoah Valley R. Co. v. Ashby's Trustees, 174. V. Griffith, 178, 416. Shenck v. Conover, 761. Shepard v. Kelly, 741. V. Shepard, 104. Shepherd v. Larne, 989. V. Lloyd, 240. V. Morris, 227. V. Titley, 1017. Sheppard v. Akers, 358. V. Messider, 736. Sherlock v. Village of Winnetka, 142. Sherman v. American Stove Co., 73. V. Clark, 513. V. Gundlaoh, 179. V. Sherman, 602. Sheward v. Sheward, 847. Shields v. Barrow, 39, 58, 77, 141, 416, 419 949 958. V. Craig's Adm'rs, 926, 932. V. Powers, 730. V. Thomas, 142, 148. V. Trammell, 380, 649. Shield's Heirs v. Bryant, 193. Shuigleur v. Jenkins, 39, 82. Shinn v. Board of Education, 81, 457. Shinney v. North American, etc., Co., 497. Shipbrooke v. Hinchinbrook, 435, 444, 736, 769. ■Shipman v. Fletcher, 592, 620, 624. Shirley v. Ferrers, 117, 677, 843, 849. Shonk V. Knight, 263. Shook V. Rankin, 461. Shore v. Collett, 767. Shotwell's Adm'x v. Smith, 853. Shreve v. Shreve, 54. Shrewsbury & C. Ry. Co. v. Shrews- bury & B. Ry. Co., 515. Shultz v. Hansbrough, 109, 658. Shurtz v. Johnson, 658. Shute V. Morley Sewing Machine Co., 747. Shuttlesworth v. Hughey, 732. Sickles V. Gloucester Co., 677. Sidden v. Lediard, 375. Sieveking v. Behrens, 825. ■Siffkin v. Manning, 322, 356. Sigman v. Lundy, 578, 974. Sill v. Ketchum, 116. V. Reese, 472. Silliman v. Whitmer, 550. Simes v. Smith, 284. Simmonds v. Du Barre, 349. Simmons v. Jacobs, 616. V. Lyles, 578. V. Shelton, 499. Simms v. Guthrie, 735. V. Richardson, 81. Simpson, Ex parte, 155, 156. V. Alexander, 75. V. Brewster, 575. TABLE OP CASES. 1141 [kefeeenoes aee to pages.] Simpson v. Lombas, 458. V. MoPhail, 306. V. Moore, 192. V. "Watts, 980. Sims V. Ridg-e, 736. V. Sims, 781. Slmson V. Hart, 649. Slney v. New York Consolidated Stage Co., 497. Singer v. Hutchinson, 55. Singleton v. Gayle, 587. V. Scott, 132. V. Singleton, 1005, 1020, 1021. Sioux City Terminal Railroad & Ware- house Co. V. Trust Co. of North America, 60. Sites V. Eldredge, 728. Sitler V. McComas, 882. Sizer v. Miller, 521. Skaggs V. Mann, 81. Skerrett v. Lynch, 672. Skerrett's Estate, 451. Skinner v. Dayton, 529. Skip V. Harwood, 496. Skrine v. Powell, 847. Skrymsher v. Northcote, 777. Slack V. Walcott, 1024-1026. Slason V. Cannon, 995. V. Wright, 591, 956. Slater v. Banwell, 881. V. Breese, 696. V. Maxwell, 670. Sledge V. Boone, 731. Slee V. Bloom, 55, 617. Slingsby v. Boulton, 814. V. Hale, 999. Sloan V. Cooper, 742. V. Little, 341. V. Westfleld, 641. Sloane v. Martin, 218, 219. Smales v. Chayter, 680. Small V. Attwood, 44, 407. V. Boudinot, 131. V. Lutz, 586. V. Montgomery, 179. V. Owings, 122, 298. V. Peters, 577, 578. Smart v. Floyer, 968. Smilie v. Siler's Adm'r, 343, 671. Smith, Ex parte, 89, 463, 566, 1005. V. Adams, 588. V. Althus, 604, 605. V. Attorney General, 838. V. Auld, 590. V. Babcock, 421, 423. V. Ballantyne, 266. V. Bank of New England, 42, 43 45, 145. V. Barnes, 263. V. Bartholomew, 82. V. Blatchford, 294. V. Brittenham, 64, 205, 452, 589. V. Britton, 652. V. Bryon, 253. V. Burnham, 138. V. Clark, 107. V. Clarke, 619, 650. V. Clay, 989. V. Collins, 405. V. Cook, 562. V. Cozart, 186. V. Croom, 629. V. Davis, 521. V. Effingham, 627. V. Evans, 79. V. Fah, 298. Smith V. Fisher, 321. V. Gill, 120. V. Grant, 448. V. Hadley, 418. V. Hibernian Mine Co., 40, 168, 169. V. Hurd, 56. V. Kincaid, 883. V. Lasher, 880. V. Lee, 385. V. Loomis, 539. V. Madden, 31, 32. V. Marshall, 164. V. McDowell, 358. V. McLain, 145. V. MoNeal, 590. V. Morehead, 245. V. Murphy, 60. V. Northumberland, 401, 403. V. Painter, 541. V. Richardson, 462. V. Robinson, 582. V. Rogers, 60. V. Rotan, 41. V. Rowe, 596. V. Sackett, 74. V. Scribner, 152. V. Serle, 353, 372. V. Smith, 23, 70, 423, 466, 519, 575, 579, 587, 776, 951. V. Smith's Adm'r, 872. V. St. Louis Life Ins. Co., 670. V. St. Louis Mut. Life Ins. Co., 186, 318, 342, 349, 358, 368, 892. V. Swormstedt, 42. V. Tenney, 567. V. Thomas, 404. V. Trimble, 190, 741. V. Turner, 342, 709, 711, 838, 842. V. United States Express Co., 25. V. Viotorin, 458. V. Wadleigh, 466. V. West, 382, 383. V. Woolfolk, 171, 954, 966.. Smith's Adm'r v. Betty, 642. V. Wainwright, 908. Smitheal v. Gray, 671. Smyth V. Ames, 146. Smythe V. Banks, 691. V. Clay, 1016. Snavely v. Harkrader, 145. Snead v. MoCoull, 417. Snediker v. Pearson, 521. Sneed v. Town, 215, 381, 772. Snell V. Hyat, 222. V. Stanley, 208. Snouffer's Adm'r v. Hansbrough, 639. Snow V. Boston Blank-Book Mfg. Co., 306, 327. V. Counselman, 276. V. Wheeler, 51. Snowden v. Dunlavey, 165. V. Snowden, 333. Snyder v. Bauchman, 384. V. Cabell, 148. V. Seeman, 538. V. Stafford, 593. Socher's Appeal, 670. Society of Shakers at Pleasant Hill v. Watson, 980, 982. Socola V. Grant, 139. Somerall v. Gibbes, 593. Somerset Bank v. Veghte, 281. Souillard v. Dias, 921, 922, 927. Soule V. Corning, 391. Souter V. La Crosse R. Co., 551. Southall V. McKeand, 644. 1142 TABLE OF CASES. [EEFEEEliTCES ABE TO PAGES.] Southall V. , 251 Southard v. Russell, 979, 980, 982, 983. Southern Bank of St. Louis v. Humph- reys, 205. Southern Development Co. v. Houston & T. C. Ry. Co., 569. Southern Life Ins. & Trust Co. v. Da- vis, 301. V. Lanier, 239. Southern Pac. Co. v. Hamilton, 386. v. Johnson's Adm'x, 386, 387. Southern Pac. R. Co. v. Temple, 191. Southern Ry. Co. v. North Carolina Corporation Commission, 694. 'South Omaha Nat. Bank v. Farmers' & Merchants' Nat. Bank, 207. South Park Com'rs v. Kerr, 650. South Sea Co. v. Bumpstead, 251. South & North Alabama R. Co. v. Highland Ave. & B. R. Co., 235. Southwick V. Van Bussum, 190. Souzer v. De Meyer, 236, 279, 313, 380. Sowerby v. Warder, 258. Spalding v. Dodge, 102. Spangler v. Spangler, 271, 272, 278. Spann v. Spann, 755. Sparhawk v. Buell's Adm'r, 794. Speak V. Metcalf, 165. Speakman v. Tatem, 60. 'Spear v. Campbell, 81, 82. Spearing v. Lynn, 427. Speidel v. Fuller, 727. Spellmyer v. Gafe, 175, 176. Spence v. Allen, 710. Spencer v. Jones, 538. V. Van Duzen, 356, 360, 415. Sperry v. Miller, 271. Spies V. Illinois, 629. 'Spilman v. Gilpin, 783. SpofCord V. Manning, 236, 376, 377, 380. Spokes V. Banbury Board of Health, 561. Spoor V. Tilson, 741. Spragg V. Comer, 227, 405, 949. Sprague v. Haines, 218. Spreen v. Delsignore, 211. Spring V. 'South Carolina Ins. Co., 830. Springer v. Kroeschell, 612, 614, 617. V. Walters, 586. Springfield Milling Co. v. Barnard & Leas Mfg. Co., 247, 955. Springston v. Morris, 738. Spurlock V. Fulks, 109, 883. Spurrier v. Fitzgerald, 299. Stace v. Mabbot, 644, 646. 'Stackpole v. Hancock, 342. Stacy V. Stephen, 444. Stafford v. Ambs, 451. V. Brown, 106, 355, 356, 362, 415 452, 552, 875. V. Bryan, 982, 984. v. City of London, 296, 700. V. Hewlett, 888, 890, 902, 910, 911 1033. V. Rogers, 623. Stafford Nat. Bank v. Sprague, 145. Stalker v. Pullman's Palace Car Co. 174. Stalling's Adm'r v. Goodloe's Ex'rs 987 Stallworth v. Blum, 979. Stanbery v. Baker, 269. Standen v. Edwards, 644, 645, 648. Standish v. Radley, 117, 784, 1020, 1037 Standley v. Arnow, 172. Stanford v. Murphy, 638. Stanhope v. Roberts, 401. Stanley v. Bond, 433. v. Hume, 228. V. Robinson, 322. Stannard v. Graves, 628, 639, 641, 644. Stanton v. Bmbrey, 293, 294. V. Hatfield, 773. V. Percival, 655. •Stapilton v. Stapilton, 109. Staples V. Parker, 467. Stark V. Brown, 19. Starling v. Brown, 818. State V. Allen, 457. V. Assessors of Taxes, 558. V. Bourne, 558, 682, 683. V. Dayton, 683. V. Dayton, S. E. R. Co., 92. V. Doty, 565. V. Edwards, 386. V. Bnsley, 385. V. Parish, 640. V. Field, 671. V. Florida Cent. R. Co., 773. V. Frew, 553. V. Fulton, 32. V. Galloway, 566, 567, 572. V. Garland, 549. V. Giles, 465. V. Harper's Ferry Bridge Co., 552, 561, 562. V. Hemingway, 576. V. Hennlng, 461. V. Henthorn, 563. V. Judges of Civil District Court, 384, 555, 572. V. Keeper of Jail of Camden Coun- ty, 567. V. Knight, 534. V. Larrabee, 585. V. Lazarus, 572. V. Leftwioh, 672. V. Lord, 92. V. Matthews, 647, 555, 557, 559, 665. V. McCIaugherty, 548. V. Mclntyre, 601. V. Merchants' Bank of Lake City, 469. V. Miller, 566. V. Mitchell, 260, 553, 566. V. Myers, 573. V. Northern Cent. Ry. Co., 617. V. Pierce, 629. V. Ricketts, 163. V. Sheriff of Charleston Dist., 551, 557. V. Simmons, 561. V. Superior Court of Spokane County, 979. V. Sweetland, 653. V. Tipton, 571. V. Tugwell, 535. V. Waugh, 549. V. White, 741, 979. V. Wilmer, 25. State Ins. Co. v. Gennett, 817. State of Massachusetts v. State of Rhode Island, 215. State of New Jersey v. People of New York, 210, 233. V. State of New York, 113. State of Rhode Island v. State of Mas- sachusetts, 215, 276, 309, 312, 380, 425, 971. State Railroad Tax Cases, 128. TABLE OF CASES. 1143 [eefebenoes aee to pages.] state Trust Co. of New York v. Na- tional Land Imp. & Mfg. Co., 483. Statham v. Hall, 820, 827. V. Hughes, 521. Staunton v. Oldham, 801. Stead's Ex'rs v. Course, ^11. Steamer St. Lawrence, 385, 388. Stearns v. Page, 129, 282, 283, 297. Stebblns v. Cowles, 864. V. Perry County, 57. V. Town of St. Anne, 148. Steed V. Baker, 132. Steele v. Bates, 180. V. Lowry, 884. V. 'Steele, 60. Stelger v. Bonn, 180. Stein V. Stein, 86. Stephens v. Van Buren, 19. Stephenson v. Parkins, 193, 196. V. Stephenson, 20, 347. V. Taverners, 578. Stephenton v. Gardiner, 259. Sterl V. Sterl, 954. Sterling v. Ashton, 187. Sterling Gas Co. v. Higby, 132, 137. Sterrick v. Pugsley, 102. Sterry v. Arden, 959. Stevens v. Bosch, 51, 411. V. Coffeen, 742, 747, 749. V. Cooper, 651. V. Germania Life Ins. Co., 830. V. Guppy, 714, 1006. V. Missouri, K. & T. Ry. Co., 677. V. Post, 658. V. Praed, 704, 705, 714. V. Railroads, 575, 581. V. South Ogden Land Bldg. & Imp. Co., 76. Stevens' Ex'x v. Stevens' Ex'rs, 969. Stevenson v. Anderson, 821, 823, 824. V. Gregory, 622. V. Kurtz, 221. Stevison v. Earnest, 740. Steward v. Roe, 973. Stewart v. Cabanne, 465. V. Crane, 619. V. EUice, 773. V. Flint, 242. V. Graham, 505. V. Masterson, 239. V. Nugent, 879. V. Shaw, 472. V. Stewart, 176, 620, 725. V. Stringer, 177. V. Turner, 592, 607. Stickel V. Bender, 639. Stickney, Ex parte, 550. V. Goudy, 590. Stigers v. Brent, 165. Stillwell V. Adams, 126. v. Hart, 761. V. McNeely, 240. Stimpson v. Brooks, 457. V. Putnam, 567. Stinson v. Ashley, 724. V. Hildrup, 116. Stirlen v. Neustadt, 118. Stockbridge v. Fahnestock, 388. Stockbridge Iron Co. v. Hudson Iron Co., 628. Stocken v. Dawson, 455. Stookley v. Stockley, 996. Stockton V. American Tobacco Co., 907. Stokes V. Farnsworth, 354, 363, 432. Stokes V. Little, 575. V. McKerral, 690. Stolze V. Milwaukee & L. W. R. Co., 27. Stone V. Anderson, 106. V. Bank of Commerce, 477, 478. V. Byrne, 437. V. Duncan, 190. V. Moore, 325, 354, 371, 379. V. Stone, 601. V. Wishart, 483. Stone's Case, 163. Stonemetz Printers' Machinery Co. v. Brown J^'olding Machine Co., 354. Stoner v. Riggs, 25. Storey v. Lennox, 807. v. People, 549. Storms V. Storms, 380. Story, Ex parte, 627. V. Livingston, 51, 82, 606, 608, 614. V. Windsor, 88. sstott V. Baskerville, 588. Stotz V. Collins, 175. Stout V. Cook, 84, 246. V. Sioux City & P. R. Co., 175. Stoutenburgh v. Tompkins, 651. Stovall V. Northern Bank, 242. Stover V. Poole, 130. Stow V. Maddock, 167. V. Russell, 238. Stratford v. Blakeway, 879. Strang v. Allen, 600. V. Richmond, 230, 237. Strange v. Collins, 432. V. Harris, 394. Straughan v. Hallwood, 892, 893. Street v. Chicago Wharflng & Storage Co., 735. V. Rigby, 855. Streight v. Junk, 57. Stretch v. Stretch, 79. Stribling v. Hart, 198. Stringer v. Anderson, 754. V. Dean, 458. Stringfleld v. Graff, 66. Strotael v. Kerr Salt Co., 72. Strong v. Weir, 582. Strother v. Lucas, 138. Stroup V. Chalcratt, 233. Strouse v. Elting, 298. Stuart V. City of St. Paul, 205. V. People, 548. V. Warren, 279, 280, 305, 314, 424, 425. Stubbs V. Leavitt, 89. V. , 727, 802. Studholme v. Hodgson, 776. Studwell V. Palmer, 448, 455. Stump V. Henry, 655. Sturgeon v. Burrall, 144. Sturm V. Fleming, 81, 89. Sturz V. Fisher, 437. Stutz V. Handley, 54. Suckley's Adm'r v. Rotchford, 384. Suffolk v. Green, 117, 128, 840, 842, 843. Sullivan v. Andoe, 165. v. Beck, 31. V. Eddy, 468, 472. V. Hall, 461. V. Jacob, 794. V. Judah, 531, 534, 550. V. Portland & K. R. Co., 306. V. Sullivan, 209, 292. V. Sullivan Timber Co., 30. V. Wallace, 386, 452. 1144 TABLE OF CASES. [EEFEEENCES ABE TO PAGES.] Summer v. Caldwell, 107. Summers v. Darne, 720. V. Murray, 283. Sumter County v. Mitchell, 150. Supervisors v. Kennicott, 618. Supervisors of Fulton County v. Mis- sissippi & W. R. Co., 96, 97, 319. Supreme Lodge, K. & L. of H., v. Wing, 270. Supreme Sitting, etc., of Iron Hall v. Baker 494. Surget V. Byers, 133, 355, 653. Sutton V. Doggett, 773. V. Gatewood, 266. V. Scarborough, 857, 879. Suydam v. Bartle, 328, 381. V. Johnson, 292, 309. Swallow V. Swallow's Adm'r, 82. ■Swan V. Dent, 912. V. Swan, 890. V. Wright, 987. Swatzel V. Arnold, 33, 414, 890. Swearinger's Ex'r v. Pendleton's Bx'x, 32. Swedish Evangelical Luthern Church V. Shivers, 123. Sweeney Mfg. Co. v. Goldberg, 293. Sweet v. Converse, 65, 154. V. Parker, 662. V. Tuttle, 665. Swetland v. Swetland, 135. Swift V. Allen, 756. V. Bckford, 235, 412. V. Lee, 209. V. Swift, 318. Swindall v. Bradley, 542. Swinfen v. Swinfen, 551. Switzer v. Skiles, 298. Swope V. Willard, 27, 57. 'Sydolph V. Monkston, 363. Symmes v. Union Trust Co. of New York, 56. T. T. W. Harvey Lumber Co. v. Herri- man & Curd Lumber Co., 214. Tabb's Curator v. Cabell, 379. Tabbernor v. Tabbernor, 574. Tabler v. Castle, 749. Tainter v. Clark. 697. Taintor v. Franklin Nat. Bank, 620. V. Keys, 667. Talbot V. Soripps, 56. V. Talbot's Representatives, 214 Talladega Ins. Co. v. Woodward, 165 Tallmadge v. Lovett, 262, 1001. Tallman v. Baltimore & O. R. Co. 174, 211. V. Wallack, 952. Talmage v. Pell, 75, 969. Tanner v. Hicks, 409. Tanner & Delaney Engine Co. v. Hall 459. Tapp'an v. Evans, 906, 908. V. Smith, 1029. Tarlston v. Barnes, 315. V. Vietes, 298, 952. Tarpley v. Wilson, 589. Tasker v. Small, 794. Tate V. Conner, 671. Tatham v. Wright, 645. Tatum V. Tatum, 265. Taunton v. Mclnnish, 420. Tavenner v. Barrett, 65. Tayloe v. Merchants' Fire Ins. Co., 735. Taylor v. Bailey, 357. V. Bate, 41. V. Bay City St. Ry. Co., 71. V. Bell, 128. V. Boardman, 981. V. Boyd, 788. V. Brown, 286. V. Bruen, 875. V. Carpenter, 17. V. Cawthorne, 606. V. Duncanson, 279, 281, 303. V. EUenberger, 760. V. Fisher, 351. V. Glanville, 775. V. Hatch, 459. V. Haylin, 131. V. Hemuig, 226. V. Holmes, 66, 57, 119, 254. V. Kilgore, 607. V. Levering, 23, 164, 165. V. Mayrant, 643. V. Milner, 269, 864. V. Newblock, 567. V. Obee, 971. V. Person, 987. V. Popham, 780, 786. V. Read, 622. V. Robertson, 603, 623. V. Savage, 807. V. Sharp, 711. V. Snyder, 127. V. Southgate, 809. V. Thomas, 600. V. Titus, 422. V. Webb, 60. V. Wrench, 364. V. Yarbrough, 714. Teague v. Dendy, 232. Teale v. Teale, 839, 847. Tedder v. Stiles, 382. Teed v. Carruthers, 378. Teil V. Roberts, 365. Telfer v. Hoskins, 450. Teller v. Van Deusen, 544. Temple v. Lawson, 822, 828. Templeman v. Steptoe, 941. Tenham v. Herbert, 152. Tennant v. Dunlop, 140, 4^7. Tennent-Stribbling Shoe Co. v. Har- gadine-McKittriek Dry Goods Co., 176. Tennent's Heirs v. Pattons, 720. Tennessee Ice Co. v. Raine, 109, 111, 140. Ter Knile v. Reddiek, 815. Terran v. Waite, 787. Terrell v. Allison, 760. Territory v. Clancey, 550. v. Murray, 550. 562. Terry, Ex parte. 562, 569, 572. Terry, In re, 561. V. Commercial Bank of Alabama, 1009. V. Resell, 141, 235. V. Trustees of Eureka College, 176, 201. Teter v. West Virginia Cent. & P. Ry. Co., 349. Tewalt V. Irwin, 174. Texas v. Hardenberg, 650. V. White, 396. Texas & P. Ry. Co. v. Cox, 26. V. Johnson, 26. TABLE OF CASES. 1145 [befebbnces abb to faqes.] Thain v. Rudisill, 741. Thanet v. Paterson, 819. Tharpe v. Dunlap, 476. THatcher v. Miller, 176. Thebaut v. Canova, 534. Thelin v. Thelln, 202. Theurer v. Brogan, 60. Thlefes v. Mason, 123. Thlelman v. Carr, 476, 962. Thomas v. Adams, 418, 587. V. Boswell, 62. V. Brockenbrough, 984, 989, 996. V. Coultas, 412. V. Dike, 18. V. Horn, 538. V. Mantahala Marble & Talc Co. 13. V. Visitors of Frederick County- School, 410, 651, 912. V. "Winter, 262. Thomas Iron Co. v. Allentown Min. Co., 527. Thomason v. Neeley, 954, 966. V. Smithson, 110. Thompson v. Burhans, 461. V. Clark, 135, 883. V. Cooper, 773. V. Crocker, 176. V. Crosthwaite, 353. V. Doe, 221. V. Fisler, 578. V. Goulding, 780, 782. V. Graham, 418. V. Greer, 211, 216. V. Jamesson, 298. V. Jones, 164. V. Lambe, 660. V. Maxwell, 520, 977, 985, 986, 1021. V. Maxwell Land Grant & Ry. Co., 20, 433, 733. V. Miller, 754. V. Newlin, 241. V. Ocean City R. Co., 521. V. Paul, 585. V. Pennsylvania R. Co., 548, 561. V. 'Shoemaker, 949. V. Thompson, 470, 580. V. Whitaker Iron Co., 128, 865. Thompson's Adm'r v. Catlett, 617. Thompson's Appeal, 630. Thompson Scenic Ry. Co. v. Toung, 517. Thomson v. Thomson, 792. V. Wooster, 183, 185, 192, 193, 615, 726. Thorington v. Carson, 343. Thorn v. Germand, 381, 427. Thorne v. Halsey, 504. V. Hilliker, 613. V. Macauley, 845. Thornly v. Jones, 363. Thornton v. Davis, 557. V. Fairfax, 438. V. Gordon, 661, 662. V. Stewart, 1001. V. Wilson, 228. Thrasher v. Partee, 235. Thring v. Edgar, 273, 278, 280, 281. Thruston v. Big Stone Gap Imp. Co., 955, 958. Thum V. Pingree, 496. Thurman v. Cameron, 461. Thurmond v. Clark, 263, 410. Thurston v. Cholt, 527. V. Masterson, 714. Tibbetts v. Perkins, 628, 630. Tibbs V. Allen, 221. Tidd v. Clare, 236. Tidwell V. Witherspoon, 216. Tiffany v. Worthington, 23. Tilden v. Maslin, 595. Tilford V. Henderson, 73. Tilghman v. Tilghman, 656, 661. Tillinghast v. Champlin, 421. Tillman v. Davis, 176. Tillotson v. Ganson, 391. V. Hargrave, 605, 733. Tilman v. Searcy, 143. Tindal v. Drake, 264. V. Tindal, 387. Tingle v. Parten, 584. Tinsley v. Anderson, 496. Tison v. Tison, 267, 314. Titus V. Mabee, 537. Tobey v. Foreman, 955. Tobin V. Walkinshaw, 82. Todd V. Campbell, 639. V. Laughlin's Heirs, 978. V. Sterrett's Legatees, 36, 37. Toder v. Sansam, 733. Toledo, A. A. & N. M. Ry. Co. v. De- troit, L. & N. R. Co., 527. Toledo, P & W. Ry. Co. v. Butler, 176. Toledo, St. L. & K. C. R. Co. v. Continental Trust Co., 474, 475. Toler V. East Tennessee, V. & G. Ry. Co., 79, 80. ToUett V. Tollett, 250. Tolman v. Jones, 557. Tomkin v. Lethbridge, 353. Tomkins v. Ashby, 656, 878. V. Harrison, 678. Tomlins v. Palk, 754, 756. Tomlinson v. Harrison, 504. V. McKaig, 1016. V. "Ward, 494. Tompkin v. Lethbridge, 259. Tompkins v. Anthon, 376. V. Harrison, 678. V. "Ward, 281, 304, 305, 425. V. "Wiltberger, 172, 187. Tompson v. National Bank of Re- demption, 238. Tone V. Brace, 521. Toney v. Moore, 653. Tong V. Marvin, 132. Tonkin v. Lethbridge, 415, 891, 910, 1025. Tonson v. "Walker, 517. Took V. Clark, 194, 786. Tooker v. Oakley, 418. V. Slossdn, 376. Toole V. De Kay, 350. Toosey v. Burchell, 736. Tootal V. Spicer, 773, 778. Torin v. Fowke, 736. Torr's Estate, 10. Torrent v. Hamilton, 154. 235. Totten V. Nance, 199, 201, 202. V. Nighbert, 414. Toulme v. Clark, 670. Toulmin v. Hamilton, 154, 235, 895. V. Reid, 813, 821, 824. Toupin V. Gargnier, 579. Tourton v. Flower, 240. Tourville v. Pierson, 112. Towle V. Pierce, 121. Town of Kankakee v. Kankakee & 1. R. Co., 158, 575. Town of Trinidad v. Simpson, 384. 1146 TABLE OF CASES. [BEFEBENOES ABE TO PAOES.] Townsend v. Cox, 219. V. Graves, 629, 801. V. Grigrgs, 173. V. Lawrence, 854. V. Townsend, 267, 314, 456. Trabue v. Bankhead, 1029. Tradesmen's Bank v. Hyatt, 341. Traer v. Whitman, 742. Traphagen v. Voorhees, 980. Trapnall v. Burton, 961. V. Byrd's Adm'r, 133. V. Hill, 955. Trapnall's Adm'x v. Bank, 219. Travers v. Ross, 269, 352, 353. Travis v. Waters, 720, 786, 791, 919. Treadwell v. Brown, 878. V. Cleaveland, 319. V. Lennig, 662. Trecothick v. Austin, 63. Trefusis v. Clinton, 764. Treishel v. McGill, 388. Trenchard v. Warner, 739. Trenholm v. Wilson, 917. Trenton Banking Co. v. Rossell, 640, 645. V. Woodruff, 628, 629. Trevor v. Colgate, 460. Triebert v. Burgess, 521. Trim v. Baker, 357. Trimble v. American Sugar Refining Co., 238. V. Brie Electric Motor Co., 176. V. Fariss, 975. Trimmer v. Pennsylvania, S. & N. B. R. Co., 536. Trimmier v. Liles, 628. Triplett v. Gill, 61. Tripp V. Gifford, 733. V. Vincent, 122, 187, 422, 650, 734. Trotter v. Bunce, 882. V. Trotter, 608. Troughton v. Binkes, 250. Troup V. Sherwood, 709. Troward v. Bingham, 936. Trower v. Bernard, 286. Troy Iron & Nail Factory v. Coming, 607, 608, 618. Truett V. Wainwright, 202. Truitt V. Truitt, 388. Truly V. Lane, 409. Truss V. Miller, 145. Trust & Fire Ins. Co. v. Jenkins, 433. Trustees v. Greenough, 773. Trustees of German Lutheran Bvan- gelical St. Matthew's Congregation v. Heise, 708. Trustees of Methodist Bpiscopal Church V. Field, 205. V. Jaques, 108, 319, 608, 613, 617. Trustees of Real Estate Bank v. Bozeman, 204. Trustees of Schools v. Wright, 306. Trustees of Village of Watertown v. Cowen, 71. Tucker v. Bean, 198. V. Cheshire R. Co., 319, 344. Tuckfleld V. BuUer, 722. Tudor V. Cambridge Water Works, 125. Tug River Coal & Salt Co. v. Brigel, 170. Tunstall v. Pollard's Adm'r, 31. Turner v. Berry, 907, 985, 990, 998. v. Burleigh, 707. V. Caruthers, 158. Turner v. Collier, 664. V. Farmers' Loan & Trust Co., 755. V. Hart,' 84. V. Hill, 47. V. Indianapolis, B. & W. Ry. Co., 755. V. Miller, 883. V. Robinson, 291, 330. V. Turner, 19, 186, 603, 769, 778. Turpin v. Eagle Creek & Little White Lick Gravel Road Co., 464. V. Jefferson, 640. Turpin's Heirs v. McKee's Ex'rs, 593. Tuskaloosa Wharf Co. v. City of Tuskaloosa, 173. Tutwiler v. Atkins, 410. Tweddell v. Tweddell, 249. Twells V. Costen, 861. Twombly v. Kimbrough, 132. Tyler, In re, 498. V. Connolly, 572. V. Simmons, 596, 616, 618, 624. V. Stephens, 304. Tyson v. Decatur Land Co., 310. Tyus V. Rust, 814, 820. U. Uhlmann v. Arnholt & Schaeffer Brewing Co., 865, 870. Ulman v. laeger, 129, 238. Ulrici V. Papin, 71. Ulster, Governor of, v. Bishop of Derry, 799. Una V. Dodd, 680. Underbill v. Van Cortlandt, 686, 707, 971. Underwood v. Warner, 278. Underwood's Case, 561. Union Bank v. Stafford, 48. LTnion Bank of Georgetown v. Geary, 663. Union Bank of Maryland v. Kerr, 389, 521, 816. V. Poultney, 521. Union Branch R. Co. v. East Tennes- see & G. R. Co., 271. Union Mill. & Min. Co. v. Dangderg, 36, 152. Union Nat. Bank of Chicago v. First Nat. Bank of Centreville, 178. Union Pac. Ry. Co. v. Harmon, 712. Union Passenger Ry. Co. v. City of Baltimore, 853. Union Square Bank of City of New York V. Reichmann, 682. Union Sugar Refinery v. Mathiesson, 623. V. Matthiesson, 715. Union Switch & Signal Co. v. Phila- delphia & Reading R. Co., 144. Unis V. Charlton's Adm'r, 470. United New Jersey Railroad & Canal Co. V. Hoppock, 859, 864. United States v. Agler, 521. V. Alexander, 451. v. American Bell Telephone Co., 144, 146, 165, 177, 409, 425. V. American Lumber Co., 163. V. Atherton, 130, 263. V. Babcock. 692. V. Breitling, 386. V. Bridgman, 180. TABLE OF CASES. 1147 [befkeences aek to pages.] United States v. Burr, 465. V. California & Oregon Land Co., 304. V. Carter, 549. V. Cliureli of Jesus Christ of Lat- ter Day Saints, 562. V. Coal Dealers' Ass'n of Califor- nia, 45. V. Cole, 513. V. Dalles Military Road Co., 311. V. Debs, 534, 561. V. Edme, 179. V. Emerson, 549. V. Ferguson, 342, 657. V. Flournoy Live-Stock & Real- Estate Co., 151, 152. V. Guglard, 143. V. Howland, 13. V. Hudson, 547. V. McLaughlin, 355, 356, 358, 853, 882. V. Moore, 463. V. Mullan, 158. V. National Lead Co., 400. V. One Thousand Five Hundred Bales of Cotton, 138. V. Parrott, 236, 436. V. Patterson, 549. V. Peralta, 271, 289. V. Percheman, 245. V. Pratt Coal & Coke Co., 103, 144. V. Samperyac, 628, 983, 998. V. Sweeney, 533, 551, 561. V. Throckmorton, 158, 980, 1007. V. Trans-Missouri Freight Ass'n, 697. V. Trinidad Coal & Coking Co., 127. V. Wayne, B52. V. White, 127. V. Tates, 215. United States Ins. Co. v. Central Nat. Bank, 884. United States Life Ins. Co. v. Shat- tuck, 451. United States Mineral Wool Co. v. Manville Covering Co., 142, 144. United States Pipe-Line Co., In re, 694. United States Trust Co. v. Mercan- tile Trust Co., 620. University College in Oxon v. Fox- croft, 933. Updike V. Doyle, 603. Urlin V. Hudson, 285. Usborne v. Baker, 905. Utica Ins. Co. v. Lynch, 320, 330, 341, 882 Uxbridge v. Staveland, 121, 238. Vaccaro v. Cicalla, 728. Valle V. O'Reilly, 570. Van Alst v. Hunter, 628, 643, 646. Van Antwerp v. Hulburd, 210. Van Boktelen v. Cook, 61, 128. Vance v. Andrews, 865. V. Burbank, 1007. V. Evans, 954. Vancleave v. Beam, 711. Van Oortlandt v. Beekman, 320. Vandenburgh v. Van Rensselaer, 453, 454. Vanderbilt, In re, 559. Vanderveer v. Holcomb, 954. Vanderveer's Adm'r v. Holcomb, 200, 352, 960. Vandervere v. Reading, 421, 422. Vanderzer v. McMillan, 661. Van Deventer v. Stiger, 200. Van Doren v. Robinson, 82. V. Van Doren, 593. Van Duyne v. Vreeland, 297. Van Duzer v. Caskie, 444. Van Dyke v. Davis, 323. Vaneman v. Fairbrother, 581. Van Bpps v. Van Deusen, 587, 588, 700, 701. Vangilder v. Hoffman, 642. Van Hise v. Van Hise, 76. Van Hook v. Pendleton, 593, 684. V. Throckmorton, 760, 896. V. Whitlock, 277, 278, 283, 297, 327. Vanhorn v. Duckworth, 240. Van Horn v. Hann, 25. Van Houten v. Van Winkle, 143. Van Leonard v. Stocks, 851. Van Mater v. Siokler, 150. Vanmeter v. Borden, 761. Vann v. Hargett, 76. Van Namee v. Groot, 705. Vanneman v. Swedesboro Loan & Building Ass'n, 655. Van Ness v. Van Ness, 623. Van Orden v. Van Orden, 240, 241. Vanpelt v. Hutchinson, 649, 1002, 1008. Van Rensselaer v. Brice, 344, 360, 361. Van Riper v. Claxton, 416. Van Sandau v. Moore, 47, 346. V. Rose, 535. Van Valkenburg v. Trustees of Schools, 190. Van Valtenburg v. Alberry, 332. Van Vleet v. Olin, 638. Van Wagenen v. Murray, 373. Van Wert v. Boyes, 906. Varick v. Dodge, 234. V. Smith, 144, 145. Varrian v. Berrien, 817. Vary v. Shea, 952. Vattler v. Hinde, 49, 381, 683. Vaughan v. Central Pac. R. Co., 865. V Cutrer, 995. V. Fitzgerald, 685, 842, 843, 847, 867, 870. V. Lovejoy, 70. V. Northup, 32. v. Smith, 615, 620. V. Welsh, 391. V. Williams, 182. Vaupell V. Woodward, 298, 328. Veach v. Rice, 954. Veazie v. Williams, 891. Veghte V. Raritan Water Power Co., 153. Veile V. Blodgett, 666. Venables v. Foyle, 1013. Vennum v. Davis, 866. Vere v. Glynn, 414, 521. Verlander v. Codd, 450. Vermillion v. Bailey, 712. Vermilya v. Christie, 356. Vermilyea v. Fulton Bank, 68, 69, 349, 872. v. Odell, 427, 583. Vermont Farm Machine Co. v. Batch- elder, 401. 1148 TABLE OF CASES. [befbeences aee to pages.] Vermont Farm Machine Co. v. Marble, 175. Vermont & C. R. Co. v. Vermont Cent. R. Co., 496. Vemey v Macnamara, 424. Vernon v. Reynolds, 42, 73. Verplanck v. Mercantile Ins. Co. of New York, 75, 412, 416, 431, 488, 489. Verplank v. Caines, 233, 481. Vioary v. Widger, 825. Vlckers v. Cowell, 238. Victor G. Bloede Co. v. Bancroft & Sons Co., 400. Victor Scale Co. v. Shurtleff, 503. Vlele V. Blodg-ett, 657, 658, 669. V. Hoag, 884. Vigel V. Hopp, 657, 667. Vigers V. Audley, 900-902, 912, 928, 1033, 1034. Vigrass v. Vinfield, 394. Vilas V. Burton, 571. V. Jones, 411. V. Plattsburgh & M. R. Co., 214. Village of Seneca Falls v. Matthews, 541. Vincent v. Matthews, 986. V. Starks, 31. Vinsen v. Lockard, 212. Vinson v. Norfolk & W. Ry. Co., 460. Vipan V. Mortlock, 528. Virginia-Carolina Chemical Co. v. Home Ins. Co. of New York, 141, 142. Virginia & A. Min. & Mfg. Co. v. Hale, 872. Vliet V. Sherwood, 519. Von Auw V. Chicago Toy & Fancy Goods Co., 143. Von Glahn v. De Rossett, 235. Von Roy v. Blaokman, 172. Von Schmidt v. Huntington, 41, 42, 774. Von Schroder v. Brittan, 361. Von TolJel V. Ostrander, 613. Voorhees v. Bonesteel, 131. V. Voorhees' Bx'r, 657. Vose V. Internal Improvement Fund, 793. Vowles V. Young, 350. Vroom V. Ditmus, 299, 751, 771. Vyvyan v. Vyvyan, 834. W. "Wabash, St. L. & Pac. Ry. Co. v Central Trust Co. of New York, 476. Wabash Western Ry. Co. v. Brow, 211. ^ Wachter v. Blowney, 956, 975. Waddell v. Bruen, 519. Wade V. Pulsifer, 153, 230, 231. 237. Wadhams v. Gay, 1015, 1016, 1017. Waffle V. Vanderheyden, 208, 534. Wagner v. Maynard, 135. WagstafE v. Bryan, 225, 935. Wainscott v. Occidental Building & Loan Ass'n, 126. „„ „.,„ Wainwright v. Wilkmson, 20, 218. Waite V. Wingate, 576. Wake V. Franklin, 680. Wakelin v. Walthal, 1013. Wakeman v. Bailey, 872. V. Gillespy, 538. V. Grover, 52. •' Kingsland, 815, 826, 828. Walbum v. Ingilby, 47, 126, 127, 403. Walden v. Bodley, 417, 423, 590, 735. Waldron v. Bayard, 880. Wales V. Newbould, 587. Walker, In re, 561. V. Ayres, 431. V. Bamberger, 812. V. Brown, 410. V. Byers, 954. V. City of Springfield, 30. V. Converse, 111, 735. V. Devereaux, 113, 515, 520. V. Ducros, 385. V. Easterby, 228. V. Gilbert, 910. V. Hallett, 218, 220, 412, 887, 888. V. Hill's Ex'rs, 298, 327, 538. V. Jack, 354. V. Lutz, 175. V. Powers, 143, 148. V. Preswick, 736. V. Walker, 351), 412, 413, 570, 880. Wall V. Attorney General, 802. V. Bushby, 733. V. Chesapeake & O. Ry. Co., 175, 177. V. Rogers, 732. V. Stapleton, 621. V. Stubbs, 285, 332. Wall's Ex'x V. WaU, 386. Wallace v. Chicago & Brie Stove Co., 462. V. Dunning, 947. V. Espy, 772. V. Holmes, 82. Wallamet Iron Bridge Co. v. Hatch, 995. Wallen v. Cummings, 606. V. Huff, 986. Waller v. Harris, 528. V. Shannon, 116. V. Taylor, 152. Wallis, Ex parte, 550. V. Atkinson, 225. V. Glynn, 452. V. Lott, 175. V. Thomas, 427, 754, 755, 780. Wallwork v. Derby, 662. Wallworth v. Holt, 47. Walmsley v. Child, 858. Walpole V. Griffln, 773. Walsh V. Smyth, 191, 410, 427, 429. V. Walsh, 733, 734. Walsworth v. Johnson, 294. Walter A. Wood Mowing & Reaping Machine Co. v. Caldwell, 30. Walter Baker & Co. v. Baker, 895, 1029. Walters v. Farmers' Bank of Vir- ginia, 62. V. Pyman, 767. v. Upton, 395. V. Whitlock, 29. Walthall's Ex'rs v. Rives, 139. Walton V. Law, 703, 716. V. Van Mater, 711. V. Walton, 563. V. Westwood, 136, 238. Wampler v. Wolflnger, 191. Wangelin v. Goe, 246, 266, 512, 513, 544. Ward V. Chamberlain, 384. v. Cooke, 153. V. Durham, 53. V. Byles, 711, 950. TABLE OF CASES. 1149 [KBafEEENCES ARE TO PAGES.] Ward V. Funsten, 720. V. Jewett, 189, 605. V. Northumberland, 151, 154, 235, 252. V. Patton, 418. V. Van Bokkelen, 538. V. Ward, 110, 623. Warde, In re, 398. Wardlow v. Erskine, 600. Ware v. Curry, 85. Warfield v. Banks, 346. Waring v. Crane, 20. V. Mackreth, 877. V. Suydam, 236, 881. Warington v. Wheatstone, 816, 825. Warner v. Graves, 582. V. Warner, 120, 707. Warren v. Lawson, 616, 617. V. Shaw, 583. V. Twilley, 382. V. Warren, 142, 323. Warthen v. Brantley, 154. Wartman v. Wartman, 561, 570. Wartnaby v. Wartnaby, 24, 224, 248. Warwick v. Norvell, 588. Washburn & Moen Mfg. Co. v. Chi- cago Galvanized Wire Fence Co., 83, 715. Washington v. Boria, 241. Washington A. & G. R. Co. v. Brad- leys, 957. Washington City Sav. Bank v. Thorn- ton, 142, 143. Washington Ins. Co. v. Slee, 917. Washington Park Club v. Baldwin, 435. Washington R. Co. v. Bradleys, 955, 966. Washington University of Baltimore V. Green, 513, 516. Waska v. Klaisner, 614. Waterman v. Buck, 237, 521, 914. V. Lawrence, 730. Waters v. Berd, 167. V. Duvall, 761. V. Glanville, 282. V. Mayhew, 424. Watkins v. Bush, 263. V. Carlton, 639, 640, 641. V. Fursland, 684. V. Lawton, 979. V. Redmond, 367. V. Stone, 308, 424. Watmore v. Dickinson, 708, 709. Watson v. Alexander, 640. V. Citizens' Sav. Bank, 528, 533, 535. v. Conkling, 329. V. Jones, 293. V. Murray, 121. V. Palmer, 658, 670. V. Reisslg, 460. V. Renwick, 400, 401. V. Stevens, 982. V. United States Sugar Refinery, 56, 143. V. Watson, 175. V. Williams, 571. Watt V. Games, 464. V. Crawford, 895. V. Starke, 639, 642, 643. V. Watt, 196. Watts V. Howard, 711, 785. V. Lawrence, 399. V. Rice, 981, 986. V. Waddle, 762. Watts V. Womack, 457, 463, 465. Way V. Bragaw, 152, 293, 294, 389. Waycross Air-Line R. Co. v. South- ern Pine Co., 513. Weale v. Proprietors of West Middle- sex Water Works, 46, 151. Weatherbee v. Weatherbee, 175. Weaver, In re, 519. V. Livingston, 186. V. Poyer, 265. Webb V. Claverden, 648. V. Litcot, 727. V. Pell, 977, 984, 995, 997-1000, 1002, 1020. V. Robinson, 638. V. Webb, 733, 986. Webber v. Gage, 125. V. Hunt, 752. V. Orne, 623. Weber v. Weitling, 615, 617. Webster v. Couch, 538. v. Diamond, 990, 995, 996. V. French, 37. V .Hardisty, 538. V. Hitchcock, 946-948. V. Threlfall, 208, 217. Wedderburn v. Wedderburn, 227. Weed V. Small, 302, 951, 962. Weeks v. Cole, 228. Welder v. Clark, 342, 653. Weightman v. Powell, 204, 205. Weikel v. Gate, 825. Weir V. Bay State Gas Co., 57. Weisbrod v. Chicago & N. W. Ry. Co., 470. Weise v. Wardle, 67. Weisiger v. Richmond Ice Machine Co., 352. Weisman v. Heron Min. Co., 136, 243, 318. Welch V. Barber, 549. v. Louis, 740. Weldon Hotel Co. v. Seymour, 471. "Welford v. Liddel, 288. Wellborn v. Tiller, 242. Welles V. River Raisin & Grand Riv- er R. Co., 867. Wellesley v. Mornington, 533, 536. Welling V. La Bau, 604, 607. Wellington v. Heermans, 41, 205. Wells v. American Express Co., 467. V. Bridgeport Hydraulic Co., 136, 147. V. Com., 549, 561, 562, 566. V. Cruger, 201. V. Pierce, 9. V. Smith, 198. V. Stumph, 172. V. Wood, 424. Wells' Heirs v. Winfree, 220. Wells, Fargo & Co. v. Miner, 813. Welsh V. Solenberger, 189. Welton V. Hutton, 587. Wendell v. Mugridge, 175. W^enegar v. Bollenbach, 653, 655. Werborn's Adm'r v. Kahn, 585. Wertheim v. Continental Railway & Trust Co., 694. West V. Bank of Rutland, 86. V. Howard, 610. V. Paige, 583. V. Randall, 36, 41, 42, 46, 82. V. Reynolds, 124, 125. V. Skip, 1016. V. Swan, 487. V. West, 22, 23. 1150 TABLE OF CASES. [bepebences aee to pages.] West V. Williams, 355, 356. Westoomb v. Westcomb, 222. Westcott V. Cady, 941, 942. V. Wicks, 241. Westerfleld v. Brled, 334. Western Assur. Co. v. Way, 475. Western Ins. Co. v. Eagle Fire Ins. Co., 110, 141. Western Land & Emigration Co. v. Guinault, 146. Western Min. & Mfg. Co. v. Virginia Cannel Coal Co., 887. Western Union Telegraph Co. v. American Bell Telephone Co., 577, 620. V. Pacific & Atlantic Telegraph Co., 186, 966. Westervelt v. Ackerman, 815-817. West Feliciana R. Co. v. Stockett, 188. Westmeyer v. Gallenkamp, 218. Weston V. Gushing, 771. West Portland Homestead Ass'n v. Lownsdale, 278, 282. West Tennessee Agricultural & Me- chanical Ass'n V. Madison, 465. West Virginia Oil & Oil Land Co. v. Vinal, 591. Wethered v. Elliott, 989. Wetherhead v. Blackburn, 236. Weymouth v. Boyer, 885. Whaley v. Bagnel, 879. V. Dawson, 153. V. Norton, 650. Wharton v. Stoutenburgh, 571. Wheat V. Moss, 380, 649. Wheeler v. Clinton Canal Bank, 76. V. Harrison, 556. V. Lack, 60. V. McCormick, 278. Whepley v. Van Bpps, 334. Whipple V. Guile, 73, 148. V. WiUiams, 460. Whitaker v. Desfosse, 451. V. Newman, 626. Whitbeck v. Edgar, 235, 957. Whitbread v. Brockhurst, 276. W^hitchurch v. Golding, 116. Whitcomb v. Duell, 620. V. Minchin, 899. White V. Buloid, 656, 696, 959, 960, 967, 969-972. V. City of Chicago, 195, 196. V. Crew, 667. V. Crow, 1008. V. Davidson, 531. V. Delsehneider, 76. V. Drew, 600. V. Ewing, 216. V. Fussell, 689, 708, 710. V. Geraerdt, 760. V. Greathead, 228. V. Hampton, 424. V. Hess, 461. V. Holman, 977. V. Howard, 353. V. Joyce, 352. V. Kennedy's Adm'r, 125. V. Lisle, 646, 648, 783. V. Morrison, 380, 650. V. Primm, 166. V. Rockafellar, 439. V. Walker, 610, 657, 757. V. Wiggins, 342. V. Wilson, 648. White's Bx'rs v. Johnson, 622. Wliite River Bank v. Downer, 176. Whitebear v. Hughes, 936. Whitecar v. Michenor, 512. Whitehouse v. Partridge, 502. Whitelock v. Baker, 676, 709, 710, 889. Whiteman v. Fayette Gas Co., 513. White Sewing Mach. Co. v. Betting, 458. Whiteside v. PuUiam, 600, 608. Whiteside County Sup'rs v. Burchell, 147. Whitesides v. Lafferty, 865. White Sulphur Springs Co. v. Robin- son, 537. Whitfleld, Ex parte, 480. V. Pausset, 858. Whiting V. Bank of United States, 738, 757, 9^6, 978, 1020. V. Beebe, 661. V. Dyer, 298. V. Rush, 375. Whitlock V. Fiske, 276. V. Smith, 630. Whitmarsh v. Campbell, 362, 413. Whitney v. Belden, 356, 449-451, 737, 747, 748. V. City of New York, 583, 584. V. Cotton, 235. v. Cowan, 830. V. Hanover Nat. Bank, 79. V. McKinney, 63. V. Mayo, 35, 41, 42, 44, 74. Whitsett V. City Building & Loan Ass'n, 773. Whittaker v. Marlar, 20. V. Whittaker, 205. Whittem v. State, 550, 567. Whittemore v. Patten, 318, 358, 361, 363, 954. Whitten v. Saunders, 990, 996. V. Whitten, 151. Whitthorne v. St. Louis Mut. Life Ins. Co., 275. Whittingham v. Burgoyne, 243. V. Wooler, 518. Whitworth v. Lowell, 617. Whorewood v. Whorewood, 1013. Whyte V. Arthur, 699, 973. Wickham v. Evered, 395. Wickliffe v. Clay, 957. V. Owings, 586. Widdowson v. Duck, 395. Widdrington v. Charleton, 212. Wight V. Downing, 951, 955. Wigrhtman v. Wightman, 548, 549. Wigton V. Bosler, 28. Wilcox V. Luco, 178. V. Wilcox, 786, 791. Wild V. Hobson, 315. Wilding V. Sanderson, 448. Wiley V. Carlisle, 761. V. Pistor, 226. V. Platter, 968, 969. Wilford V. Beaseley, 687, 699, 971, 972. Wilgus V. Germain, 55. Wilhelm's Appeal, 416. Wilhite V. Pearce, 166, 593. Wilkes V. Rogers, 367. V. Wilkes, 125. Wilkin V. Wilkin, 735. Wilkins v. Jordan, 540. V. Judge, 71. V. Stidger, 470. Wilkinson v. Bauerle, 657. V. Eeal, 111. TABLE OF CASES. IISI [BEFEBENCES ABE TO PAGES.] Wilkinson v. Dodd, 361. V. First Nat. Fire Ins. Co. of "Worcester, 529. V. Fowlies, 892, 898, 914. V. Parish, 916, 1023. V. Perrin, 927. V. Roper, 578, 974. V. Stitt, 123. Wilkinson's Adm'r v. Oliver's Repre- sentatives, 729, 730. Willan V Willan, 711. Willard v. Wood, 580. Willeford v. State, 535. Willett V. Woodhams, 111, 113, 520, 521. Willford V. Beaseley, 686. William v. Empire Transp. Co., 290. Williams v. Attenborough, 763. V. Bankhead, 58, 60. V. Banks, 753. V. Berry, 537. V. Bishop, 643. V. Blakey, 629. V. Bloodhead, 687. V. Carle, 352, 696, 968. V. Chicago Exhibition Co., 528. V. Cooke, 922, 933. V. Corwin, 182, 183, 185, 189, 726. V. Creswell, 30. V. Davies, 359, 361, 372. V. Donaghe's Ex'r, 622. V. Douglas, 225. V. First Presbyterian Soc. in Cin- cinnati, 89. V. Goodchild, 710, 795, 796. V. Hagood, 126. V. Hollingsworth, 714. V. Jackson, 139. V. Jones, 375, 588. V. Lee, 300. V. Lewis, 209. V. Longfellow, 377, 380. V. Mellish, 987. V. Morgan, 81. V. Rhodes, 306. V. Savage Mfg. Co. 400, 421. V. Thompson, 199, 203, 205. V. WiUiams, 400, 678. V. Winans, 910, 1031. V. Woods, 590. V. Wright, 821. V. Uncompahgre Canal Co., 158. Williamson v. Henshaw, 451. V. HuUon, 795. V. Hutton, 711. V. Selden, 67. V. Sykes, 203. V. Wilson, 479, 482, 483. Willingham v. King, 126. Willlngs v. Loman, 168. Willis v. Corhes, 487. v. Evans, 429. V. Parrer, 752. V. Garbutt, 228. V. Henderson, 663. V. Lyman, 463. V. Parkinson, 753. V. Terry, 371. Williston V. Michigan Southern & N. L R. Co., 30. Willson V. Salmon, 829. Wilmington v. Addicks, 587, 701. Wilson V. Anthony, 297. V. Beadle, 892. V. Berryman, 463. Wilson V. Bigger, 25. V. Blakeslee, 216. V. Derrwaldt, 237. V. Eggleston, 137, 588. V. Forster, 403. V. Grace, 25, 223. V. Greathouse, 172. V. Hammonds, 280. V. Hendricks, 540. V. Hill, 242. V. King, 430. V. Maddox, 484. V. Metcalfe, 760, 769. V. Mitchell, 311. V. Polk, 760. V. Riddle, 628, 635, 640. V. Schaefer, 732, 733, 978, 979, 983, 984, 1005. V. Seymour, 54. V. Stolley, 319. V. Waterman, 410. V. Waters, 201, 202. V. Webber, 401. V. Welch, 25. V. Wilson, 150, 157, 574, 677. Wilson's Heirs v. Bodley, 962. Wilton V. Hill, 732. Wimberly, Ex parte, 535. Winans v. Graves, 83. Winchelsea v. Garretty, 629, 801. Winchester v. Baltimore & S. R. Co., 662. V. Beavor, 729. V. W^inchester, 730, 979, 990, 996. Winchilsea v. Wauchope, 646. Wjndett V. Connecticut Mut. Life Ins. Co. 994. Wind'on v. Stewart, 613. Winebrenner v. Colder, 104, 136. Winfield Nat. Bank v. MoWilliams, 211. Wing V. Champion, 911. v. Cropper, 189. V. Goodman, 950, 966. V. Spaulding, 813. Winkler v. Winkler, 712. Winn v. Albert, 298, 893, 907. V. Jones, 907. Winnisimmet Co. v. Town of Chel- sea, 387. Winship v. Conner, 772. V. Jewett, 201. Winslow V. .jenness, 148. V. Minnesota & P. R. Co., 51. V. Nayson, 552. Winsor v. Bailey, 321. Winston v. Campbell, 20. V. McAlpine, 939. Winter v. Merrick, 416. Winters v. Means, 158. Winthrop v. Murray, 579. Wise v. Lamb, 629, 642. Wiser v. Blachly, 37, 788, 889, 981, 984, 987, 1021, 1037, 1038, 1040. Wisham v. Lippincott, 540. Wistar v. McManes, 858, 876. 877, 884. Wiswall V. Sampson, 26, 497. Withers v. Denmead, 329. Withers' Ex'r v. Dickey, 542. Witherspoon v. Carmichael, 132. Witters v. Sowles, 623, 709, 752, 785. Witzler v. Collins, 386, 387. Wolf V. Bollinger, 630. V. Wolf's Ex'r, 321, 859. Wolfe V. Bradberry, 622. 1152 TABLE OF CASES. [BEFEEEWCES ABE TO PAGES.] Wood, In re, 652. V. Beadell, 113, 520, 521. V. Braxton, 545. V. Carpenter, 129. V. Dummer, 45, 47. V. Genet, 125. V. Goss, 228. V. Grayson, 481. V. Griffith, 788-790, 792, 802. V. Hammerton, 708. V. Jefferson County Bank, 459 V. Keyes, 751. V. Mann, 156, 275, 304, 586, 676, 707, 708, 711, 715, 795, 890, 979. V. Milner, 803. V. Parsons, 496. V. Rowe, 276. V. Stane, 702. V. Stover's Adm'rs, 83. V. St. Paul City Ry. Co., 460. V. Stricltland, 425. V. Wood, 180, 218, 995. V. Zeigler, 653. Woodard v. Bird, 951. Woodburn v. Woodbum, 474. Woodbury Patent Planing Machine Co. V. Keith, 329. Woodgate v. Field, 293, 578. Woodley v. Johnson, 647. Woodman v. Rowe, 20. Woodmanse & Hewitt Mfg. Co. v. Williams, 306. Woodmas v. Warner, 678. Woodmason v. Doyne, 802. Y. Woodruff V. Cook, 304, 326. V. North Bloomfleld Gravel Min. Yale v. Baum, 544. Wright V. Bowden, 1015. V. Bruschke, 593. V. Castle, 157, 158, 224, 575. V. Dame, 105, 857, 858, 866, 885. V. Dunklin, 263. V. Frank, 414, 955. V. King, 859. V. Le Claire, 297. V. Lee, 30. V. May, 713. V. McKean, 186. V. Meek, 276. V. Pilling, 710, 798. V. Smith, 459. V. Strother, 720. V. Tatham, 846. V. Wright, 111, 116, 648, 801. Wrompelmeir v. Moses, 286. Wroten's Assignee v. Armat, 979. Wrottesley v. Bendish, 654, Wyatt V. Jeffries, 457. V. Thompson, 421, 475, 476. Wych V. Meal, 69, 860, 866. Wyokoff V. Cochran, 366. V. Sniffien, 326. Wyld V. Ward, 710, 790. Wynn v. Newborough, 27. V. Wilson, 528. Wynne v. Jackson, 371. Wythe V. Palmer, 276. Co., 152. V. Taylor, 727. V. Young, 150. Woods V. Douglas, 770. V. Morrell, 156, 339, 340, 344, 346 366. Woodson's Bx'r v. Leyburn, 783. Woodward v. Astley, 225. V. Brooks, 28. V. Harbin, 175, 176. V. Lincoln, 536. V. Schatzel, 501. V. Woodward, 22, 889. Woolam V. Hearn, '714. Woolf V. Pemberton, 18. Woolfolk V. Graniteville Mfg. Co., 582, 636. WooUey, In re, 658, 662. Wooster v. Blake, 266, 314. V. Cooper, 426. V. Simonson, 621. V. WoodhuU, 193, 203. Woots V. Tucker, 1002. Wootten V. Burch, 137, 318, 320, 321. Worcester v. Truman, 555, 566. Word V. Peck, 870. Work V. Hall, 186. Wcrmley v. Wormley, 84, 85, 263. Worth V. Gray, 449. Worthington v. Lee, 376. Worthy v. Johnson, 145. Worland v. State, 563. World's Columbian Exposition Co. v. Brennan, 516. Worrell v. Wade's Heirs, 577. Wortley v. Birkhead, 984. Wray v. Hutchinson, 325, 887. Wren v. Gayden, 153. V. Spencer Optical Mfg. Co., 380. Wright V. Atkyns, 113, 322, 620. V. Moore, 539. Yarborough v. Thompson, 811, 816. Yare v. Harrison, 394. Yarnell v. Pelton, 388. Yates, In re, 567. V. Hambly, 48. V. Hardy, 361. V. Lansing, 547, 572. V. Monroe, 861, 884. V. Payne, 932. V. People, 567. V. Woodruff, 203. Yazoo & M. V. Ry. Co. v. Adams, 618. Yeager v. Wallace, 25. Yeagley v. Webb, 459. Yeaton v. Lenox, 43, 147. Yingling v. Hesson, 636, 699. York, City of, v. Pilkington, 45, 46, 151, 162. Youle V. Richards, 343. Young, Appeal of, 148. V. Cannon, 573. V. Colt, 862, 886. V. Dickey, 215. V. Everest, 768, 776. V. Grundy, 342, 538, 649. v. Henderson, 978. V. Keighly, 711, 888, 889, 981, 1038. v. Kefly, 918, 943. v. Lyons, 149. V. Mitchell, 339. V. Omohundro, 614. V. Twigg, 962. V. Wliite, 280. v. Wright, 473. V. Young, 186, 461. Youngblood v. Schamp, 521. Yule V. Yule, 504. TABLE OF CASES. 1153 [liEFEr.EKCES ATIE TO PAGES.] Zabel V. Harshman, 261. Zacher v. Fidelity Trust & Safety Vault Co., 28. Zeigler v. Hughes. 306. Zell Guano Co. v. Heatherly, 139, 140. Ziegler v. Lake St. Elevated R. Co., 57. Zimmer v. Miller, 791. Zimmerman v. Gerdes, V. Sorelle, 294, 309. V. Zimmerman, 570. Zirkle v. MoCue, 728. V. Lake, 332. V. Southall, 968. V. , 406. 212. Equity— 73. INDEX. [references are to pages. J A. ABATEMENT, suspends suit, 915. causes of, 915. by death, 915-917. by death of sole complainant, 917. by death of joint tenant, 917. by death of one trustee, 917. where interest survives, 917, 918. by majriage, 915, 916. marriage of female complainant causes, 916. marriage of female defendant does not cause, 916, 917. infant coming of age does not cause, 732. effect on cross bill, 968. in interpleader, 917. pending action at law, 704. dismissal for want of prosecution pending, 585. in United States courts, equity rules 56, 57, p. 1077. pleas in, see "Plea." see "Bill of Revivor"; "Bill in Nature of Bill of Revivor.' ABIDING EVENT, when stipulation for, is proper, 477. authority of attorney to stipulate for, 477. effect of stipulation for, 477, 478. where other cause not determined on merits, 477, 478. form of order for, 477. see "Stipulations." ABODE, PLACE OF, see "Service." ABSENT PARTIES, dispensing with, 37-40, 58, 59 11-56 INDEX. [eefeeences aee to pages.] ABSENT PARTIES— Cont'd. in United States courts, equity rules 47, 58, 59, p. 1074. prayer for process against, 39, 113. process against, 39, 113, 163, 167, 168, 170, 172, 175. service of process on, 163, 167, 168, 170, 172, 175. decree against, 40, 47, 58, 59, 171, 197. see "Nonresident"; "Decree"; "Process"; "Service"; "Extraordi- nary Service"; "Substituted Service;" "Constructive Service." ABSOLUTE, making order nisi, 453, 454. ACCEPTANCE OF SERVICE, authority to accept, 173. out of jurisdiction, 173. proof of, 173. statutory provisions for, 173. form of, 173. ACCIDENT, allegations of, in bill, 130. opening pro confesso for, 199. ACCOUNT, between partners, 38, 39. parties to bill for, 38, 39, 61, 71. multifariousness in bill for, 151. answer to bill for partnership account, 321. reference to take, 593-595, 597. Bacon's ordinance on, 1053. court taking, without reference, 594, 595. form of order of reference to state, 597. form of interlocutory decree for, 743. form of decree in suit for, 744. enrollment of decree for, 750. in United States courts, equity rules 73, 79, pp. 1084, 1086. ACTION AT LAW, directed by court, 702. retaining bill vrith liberty to bring, 703, 715, 716. form of order, 716. distinction from feigned issue, 627. to try legal title, 702, 703. not used to raise equity after trial at law, 703. in interpleader suit, 829. parties in, 703. direction of chancellor as to parties and evidence, 703. INDEX. 1157 [EEFEBENCES ABE TO PAGES.] ACTION AT LAW— Cont'd, trial of, 704. evidence on trial of, 703. new trial, 704. conclusiveness of result of, 703. proceedings after verdict, 704. hearing on further directions after, 704. increase of damages on, 704. decree on, 716. costs on, 7-16. rescinding order for, 703. abatement o£ suit pending, 704. form of order retaining bill, with liberty to bring, 716. see "Feigned Issues." ACTION IN COURT OF COMMON LAW, rigidity of, 4. ADDRESS OF BILL, 97, 101, 102. form of, 93, 101, 102. see "Bill." ADEQUATE REMEDY' AT LAW, demurrer on ground of, 245-247. plea on ground of, 290. answer asserting, 329. after demurrer on same ground overruled, 329. objection on court's own, motion, 246. waiver of objection, 246. ne exeat where, 503. receiver not appointed where, 480. see "Dismissal for Want of Equity"; "Dismissal for Want of Jurisdiction"; "Jurisdiction"; "Want of Equity." ADMINISTRATOR, as party, 71, 150. joinder in bill with heir, 71. joinder in bill with vendee of intestate, 71. bill by, in personal and representative capacities, 150. bill of review by, 984, 985. supplemental bill by, 895, 897. after obtaining letters, 414, 892. amendment of bill by, after obtaining letters, 414. petition for rehearing by, 797. bill of revivor by or against, 915-940. prayer of, against, 928, 929. prayer for process against, 112. 1158 INDEX. [eefeeences abb to pages.] ADMINISTRATOR— Cont'd, plea to character of, 291. decree against, binds creditors, 53. costs of, 774-778. see "Executor"; "Foreign Administrator"; "Foreign Exec- utor"; "Personal Representativee." ADMISSIONS, of complainant, 649. by attorneys, 471-473. conversations of, 472. in bill, of corporation, 655. need not be proved, 653. after amended bill filed, 653. in another suit, 655. by demurrer, 237, 238. in answer, 342, 421, 428. of infant, 654. of idiot, 654. of person not sui juris, 654. of guardian of person under disability, 654. conclusive nature of, 653. by mistake, 653. on information and belief, 654. unverified, 654. of main charge of bill, 319. proof of, 652. amendment to cure, 421, 428. effect of replication on, 379, 649, 653. See "Evidence"; "Rep- lication." to cure admission in answer, 421, 428. decree pro confesso as, 196, 197. of record, 471. judicial admissions, 471, 472. solemn admissions, 471, 472. proof of, 649, 652, 653. in bill, 653. in answer, 652, 653. at trial, 472. use of, on new trial, 472. for purposes of evidence, in writing, 473. allegation in bill of defendant's admission, 138. unsworn bill as, 655. of complainant, contradicting testimony, 649. controverting admissions in pleadings, 653. INDEX. 1159 [BBFEEENCES ABE TO PAGES.] ADMISSIONS— Cont'd, of contempt, 553. as foundation for motion for payment into court, 393-395. as foundation for motion for production of evidence, 400-404. in United States courts, equity rule 38, p. 1072. ADVERTISEMENT, see "Constructive Service"; "Substituted Service." AFFIDAVIT, definition, 457. office of, 457. distinction from deposition, 457. by parties, 457, 458. by agent, 458. by attorney, 458. by blind person, 464. by clerk of attorney, 458. by lunatic, 464. by officer of corporation, 459. by stranger, 458, 459. by person with knowledge, 458, 462. joint affidavits, 462. several affidavits, 462. substituted, 458. adopting affidavit of other person, 463. authority to take, 459. attorney taking affidavit of client, 459. of notary public to take, 460. notary public in foreign state, 460. taking out of jurisdiction, 459. frame of, 460. title, 460, 461. amendment of title, 460. misentitling, 460, 461. description of parties, 461. statement of residence of parties, 461. certainty in, 462. statement of conclusions in, 462. erasures in, 463. conclusion of, 463. signature to, 463. date, 463. jurat, 464. amendment of, 460, 465. insufficient, unless perjury assignable on, 463. must be material, 462. 1160 INDEX. [befeeences aee to pages.] AFFIDAVIT— Cont'd. presumption of personal knowledge, 458, 462. reading in another cause, 460. on motion for election of remedies, 391. as evidence, 457. See "Evidence"; "Hearing." as evidence before a master, 605. See "Reference." Bacon's ordinance on, 1056. on motion to dissolve injunction, 541, 542. on motion for continuance, 696. on application for ne exeat, 501, 504. on motion to discharge ne exeat, 510. on motion for receiver, 484, 487, 488. to dispense vsrith notice of motion, 489. on motion to quash return, 175, 177. See "Return of Service." as foundation for motion for payment of money into court, 393-396. in support of motion, 437, 439, 457. See "Motion." in support of petition, 457. See "Petition." of service of writs and orders, 462. counter affidavits on motion to open pro confesso, 202. taking affidavit against affidavit. Bacon's ordinance, 1056. scandal and impertinence in, 463. oath by person not Christian, 334, 464. perjury in, 460, 463. form of, 465. form of, to open pro confesso, 206. form of jurat, 464. in United States courts, equity rules 8, 9, 19, 31, 80, pp. 1064, 1067. 1070, 1086. see "Jurat"; "Oath"; "Verification." AGE, COMING OF, see "Majority, Infant Arriving at." AGENT. as complainant, 63, 65. as party to bill, 63, 65, 66, 69. in case of fraud, 66. cannot maintain suit for principal, 63, 65. service of process on, 165. of corporation, service on, 165. as party to bill, see "Corporation." of foreign corporation, service on, 165, to accept service of process, 30. extraordinary service on, 167. appearance by, 214. mDJL.v. 1161 [BKFEEENCES ABE TO PAGES.] AGENT— Cont'cl. answer of, as evidence against principal, 664. affidavit by, 458. injunction against, 536. , as receiver, 483. verification of bill by, 118. AGREEMENT, see "Contract"; "Stipulations." ALIEN, enemy, 16. friend, 16. capacity to sue, 15, 16. absence of reciprocity of remedy in country of, 17. right to sue in "United States courts, 17. see "Foreigner." ALIENATION, PENDENTE LITE, see "Assignee"; "Purchase Pendente Lite"; "Purchaser Pendente Lite"; "Bill in Nature of Supplemental Bill"; "Supplemental Bill"; "Bill in Nature of Bill of Revivor." ALIMONY, United States courts, jurisdiction of, 12. failure to pay, contempt, 549. form of order of reference as to, 597. form of order of commitment for nonpayment of, 567. see "Contempt." ALLEGATIONS, of accident, 130. of admissions of defendant, 138. argumentative, 104, 136. certainty in, 88, 104, 119, 121, 128, 129, 242, 462. positiveness in, 104, 121. in charging part of bill, 105-107. in stating part of bill, 104, 105. of citizenship in federal courts, 102, 103, 247. of collateral facts, 137. of conclusions, 125, 136. of confessions of defendant in bill, 138. in bill, must be sufficient to support case, 122, 732-734. decree must be supported by allegations in bill, 122, 732-734. of documents, 132-135. See "Deed"; "Documents." facts in complainant's knowledge, 121. facts in defendant's knowledge, 121. 1162 INDEX. [EEFEBENCES ABE TO PAGES.] ALLEGATIONS— Cont'd, of usury, 128, 131. of fraud, 122, 131, 132. of mistake, 130. general, 104. general, controlled by specific, 139. inconsistent, in bill, 139. on information and belief in answer, 339-341. on information and belief in bill, 135, 238, 275, 339-341, 519. on information and belief, in plea, 275. in haec verba of documents, 132, 133, 345. of injury to complainant, 126. of interest of complainant, 119-125. of title of complainant, 119, 124, 125. of interest of defendant, 126, 127. of liability of defendant, 126. of judicially noticed facts, 137, 138. avoiding laches, 128, 129. avoiding statute of limitations, 128. of law and fact blended, 137. of bill not denied in answer, 342. in bill against numerous parties, 41. dispensing with parties, 130. of cause of nonjoinder of parties, 82, 130. as to numerous parties, 41. as to parties out of the jurisdiction, 38. as to nonjoinder of unknown persons as parties, 40. excuse for nonjoinder of parties, 82. of failure to join personal representatives as parties, 130. of performance, 126. proof broader than, 122, 732-734. in bill by or against executor, 124. in bill by receiver, 27. in bill against receiver, 26. in bill by foreign guardian, 31. in bill by next friend, 124. of capacity of representatives, 124. reference to another bill, 133. in bill to open settled account, 131. in stockholders' bill in behalf of corporation, 55-57. in United States courts, equity rule 94, p. 1089. forms of. In answer, 337. see "Parties"; "Complainants"; "Defendants"; "Injunction"; "Receivers"; "Ne EJxeat"; "Bill"; "Plea"; "Answer"; and titles of the various bills. INDEX. 1163 [REFEEENCES ABE TO PAGES.] ALTERNATIVE PRAYERS, when to be used, 110, 139, 140. in bill for partition, 140. in creditors' bill, 140. in bill with double aspect, 140. must be consistent with facts, 141. demurrer to bill with, 141. proceedings at hearing, 141. amendment of bill introducing, 417. see "Relief"; "Prayer for Relief"; "Double Aspect"; "Multi- fariousness." ALTERNATIVE RELIEF, prayer for, 110, 140, 417. demurrer to bill praying, 110. see "Alternative Prayers." AMBASSADOR, jurisdiction in cases affecting, 11. privilege from service of process, 178. See "Privilege iiom Pio- cess." AMENDED ANSWER, filing, 424. see "Amendment of Answer." AMENDED BILL, subpoena on, 433. demurrer to, 253, 261. after demurrer to original bill overruled, 261. plea to, 306. plea to, after answer to original bill, 433. answer to, 350, 433, 434. answer standing to, 434. exceptions to answer to, 359. injunction on, 521. proceedings on, 433. see "Amendment of Bill"; "Amendment." AMENDMENT, of pleadings, 408-434. liberality of, in equity, 408. leave of court required, 410. leave to amend not equivalent to amendment, 430. application for leave to file, 427. must show substance of amendment, 427. to conform to proof, 416, 421, 423, 427, 428. 1164 INDEX. [BEFEEENCES ABE TO PAGES.] AMENDMENT— Cont'd. allowance of, in discretion of court, 409, 411, 420, 422, 423, 425. terms on allowance of, 411. costs on allowance of, 411. after delay, 409, 416, 423, 425-427. after decree, 427. after dismissal, 427. on court's own motion, 409. by complainant, 408. see "Amendment of Bill"; "Amendment of Replication"; "Amendment of Exceptions." ' to defeat justice, 408. making new case, 409, 416-418. making new parties, 77, 82, 411, 412, 414, 418, 419. See "Supple- mental Bill." strildng out allegations, 430. statutory provision for, 408, 420, 889, 890. how made, 428. frame of, 428-431. title of, 431. reference to pleading amended, 429, 430. stating original pleading, 430. engrossment of, 429. annexing to pleading amended, 429. by interlineation, 429. verification of, 431. order to amend should specify amendment, 432. denial of leave to amend, 410. amendment by defendant allowed with great caution, 408. see "Amendment of Plea"; "Amendment of Answer." of affidavit, 465. of depositions, 686. of petition for ne exeat, 505. of process, 172-176. of return on process, 172-176. of rules of court, 388. of orders, see "Orders." of decrees, see "Decree"; "Consent Decree." form of petition for leave to amend, 428, 429. form of amendment, 431. AMENDMENT OP ANSWER, after issues joined, 410. after publication of evidence, 410. after master's report, 410. after exceptions to master's report, 410. INDEX. 1165 [EEFERENCES ARE TO PAGES.] AMENDMENT OF ANSWER— Cont'd, after decree reversed, 410. to cure admissions, 421, 428. to cure mistake, 421, 428. in case of negligence, 421. in case of surprise, 421, 422. to cliange defense, 423. to make new defense, 421, 423. to assert matter arising after answer, 422. See "Cross Bill." application for leave to amend, 421. showing on, 421. allowance of, 411. discretionary with court, 420, 422. conditions on, 411. effect of, 424. of answer to cross bill, 972. hy infant at majority, 20. by supplemental answer, 422. See "Supplemental Answer." of sworn answers not easily allowed, 421, 422. statutory provisions for, 420. form of order granting leave to amend, 433. see "Amendment." AMENDMENT OF BILL, purposes of, 411, 412. to add allegations, 411. to strike out allegations, 412. to add parties, 77, 411, 412, 414, 418, 419. See "Supplemental Bill." in United States courts, equity rule 52, p. 1075. to strike out parties, 412, 418. divesting bill of original parties, 418. substituting defendant for complainant, 418. to conform to proof, 416, 427, 428. to make new case, 416. to vary case, 417. to set up new equity, 420. to meet matter of avoidance in answer, 415. as special replication, 380, 415. to meet facts arising after filing stated in answer, 415. to set up matter arising after filing of bill, inchoate right perfected, 414. probate of will, 414. foreign executor obtaining letters, 414. homestead expiring, 414. to set up matters arising after filing of bill, 414, 415. 1166 INDEX. [KEFEKENCES ABB TO PAGES.] AMENDMENT OP BILLr— Cont'd. to set up matters arising after filing bill, and before answer, 415. incorporating in supplemental bill, 902. supplemental bill unnecessary wbere amendment sufficient, 891. see "Supplemental Bill." to meet cbarge of fraud in answer, 415. to obtain admission for production of documents, 401. to cure misjoinder of parties, 418. to cure multifariousness, 417, 419. prayer, 417, 419. to pray for special relief, 419. to pray for alternative relief, 417. to add prayer for relief to bill of discovery, 419, 870, 871. to make bill with double aspect, 419. time of amendment, after answer, 415. in United States courts, equity rule 45, p. 1074. after decision announced, 410. after decree nisi, 410. after demurrer sustained, 237, 263, 264, 427. after disclaimer, 377. after exceptions, 364. after replication, 380, 381. after pro confesso, 204, 410. after opening pro confesso, 205. after hearing, 410. after intervening petition, 81. of sworn bill, application for leave, 412, 413, 427, 428. affidavit on application, 412, 427, 428. showing on application, 412, 413, 427, 428. caution in allowance of, 412. by supplemental statement, 412, 413. unnecessarily verified, 413. time of application for leave, 426. affidavit on application for leave, 412. 427, 428. order granting leave to amend, 432. effect of amendment, 420. relates back, 420. vacates pro confesso on original bill, 204. lis pendens on, 420. denial of leave, where amended bill cannot be substantiated, 410. denial of leave, when no relief can be had on amended bill, 410. inconsistent with original bill, 417. stating conclusions, 410. causing multifariousness, 419. INDEX. 1167 [EBFEBENCES ABE TO PAGES.] AMENDMENT OF BILL— Cont'd. defendant cannot require, 409. taking pro confesso, on same day, 204. what is material amendment, 417. answer standing to, 434. of bill for specific performance, 417, 419. of bill of discovery, 870, 871. of bill of foreclosure, 417. of bill for injunction without prejudice, 413, 520. in United States courts, equity rules 28-30, 45, pp. 1069, 1070, 1074. form of amendment, 431. form of order granting leave to amend bill, 432. AMENDMENT OF DECREE (see "Decree"). AMENDMENT OF DEMURRER, when allowed, 425. narrowing demurrer, 426. AMENDMENT OF EXCEPTIONS, when allowed, 426. of prayer of, 363. AMENDMENT OP MASTER'S REPORT (see "Master's Report"). AMENDMENT OF ORDER (see "Orders"). AMENDMENT OF PLEA, when allowed, 307, 424, 425. adding allegations, 424, 425. to cure defect in frame, 424. as to parties, 424. caution in allowance of, 425. time for, 425. AMENDMENT OF REPLICATION, generally allowed, 426. as to parties, 426. AMOUNT IN CONTROVERSY, beneath dignity of court, 123. Bacon's ordinance concerning, 1048. demurrer on ground of, 244, 249. dismissal on ground of, 249. ANOMALOUS PLEA (see "Plea"). ANOTHER SUIT PENDING, double vexation not allowable. Bacon's ordinance, 1048. 1168 INDEX. [EEFEEBNCES ABE TO PAGES.] ANOTHER SUIT PENDING— Cont'd. in a court of equity, 293. in a court of law, 293. in domestic court, 293. in a court of another state, 294. in court of another country, 293. in federal court in another district, 294. in federal court in same state, 294. in foreign court, 293. in state court' in same district, 294. effect of, must be same, 294, 389. matter of, must be same, 294, 389. parties in, 294. in creditors' suit, 293. demurrer setting up, 244. plea setting up, 292. allegations in, 292. goes to second suit, 294, 295. requisites of, 293. incorporated in answer, 292. argument of, 295. reference of, 295, 311, 315. master's report on, 295, 315. answer setting up, 292, 329. motion to elect, 293, 389. order to elect, 389. See "Election, Putting Complainant to." order of reference of plea, 315. staying suit by comity, 294. other suit pending on writ of error, 295. form of order of reference of plea, 315. ANSWER, two-fold nature of, 318. office of, 229, 317-325. distinction from disclaimer, 374. distinction from plea, 270, 317. as defense, 229, 317-325. affirmative defense by, 323. objections to, 354. affirmative relief by, 323, 950, 953. as cross bill, 950, 953. what must be answered, 320. rule for determining, 320. defendant's own case only, 322. matters of law, 320. judicially noticed facts, 652. INDEX. 1169 [EEFEEBNCES AEE TO PAGES.] ANSWER— Cont'd. impertinent matter, 321. scandalous matter, 320, 321. matter exposing to forfeiture, 321, 876. matter exposing to penalty, 321, 876. matter causing breacli of professional confidence, 322, 876. matter exposing to punishment, 321, 876. facts stated by way of recital in bill, 319. documents recited in bill, 321. , material matters, 320. discovery relating to defendant's title, 322. to general interrogatory of bill, 108. to special interrogatories, 107, 108, 318, 319. when sufficient, 318, 319. how answer to be made, on knowledge, 339. lack of knowledge, 340, 341. on information and belief, 339-341. See "Information and Be- lief." must admit or deny bill, 319. failure to deny allegations, 342, 343, 671. effect of, 342, 343, 671. Bacon's ordinances, 1054, 1055. denials on belief, 339-341. See "Allegations"; "Information and Belief." certainty in, 317-324. positiveness in, 339-341. responsiveness in, 343. how determined, 343. evasiveness in, 357. allegations in disjunctive in, 319. reference to answer of co-defendant, 346. must be full, 318-320. protection from, by answer, 356, 876, 880, 881. by demurrer, 318, 857, 858. by plea, 318. disclaimer cannot deprive of, 375. exceptions for failure to put in, 355, 358. in United States courts, equity rule 39, p. 1072. Bacon's ordinance, 1054. sufficiency, how tested, 354. demurrer improper, 354. "Bacon's ordinance, 1054. see "Exceptions to Answer." not to be scandalous or impertinent, 320, 341, 344, 345. See "Scandal and Impertinence"; "Exceptions to Answer." Equity — 74. 1170 INDEX. [EEFBRENCES ABE TO PAGES.] ANSWER— Cont'd. answers of particular persons, of deaf and dumb persons, 348. of defendant in contempt, 350, 570. See "Contempt." of corporation, 334, 349. See "Corporation." of executor to stale demand, 321. of fiduciary, 346. of foreigner, 348. of Idiot, 348. of illiterate person, 348. of infant, 331. See "Guardian ad Litem." of intervening petitioner, 80. of lunatic, 348. See "Committee"; "Guardian ad Litem"; "Lunatic." of officer of corporation, see "Corporation." of married woman, 350. See "Married Woman"; "Husband and Wife." to particular matters, to charge embracing several particulars, 319. to complainant's case, 318. to charge of fraud, 322. to general interrogatory in bill, 108. to special interrogatory in bill, 107, 108, 318, 319. to recital of documents, 321. to charge of usury, 321. to particular bills, ' to bill insufficient on its face, 325. to cross bill, 350, 351. as evidence, 656. in United States courts, equity rule 39, pp. 323, 1072. to bill to perpetuate testimony, 846. to bill for partnership account, 321. to bill of interpleader, 818, 826. to bill for account, 321. to amended bill, 350, 433, 434. original answer standing to, 434. to supplemental bill, see "Supplemental Bill." to bill of revivor, see "Bill of Revivor." to bill in nature of bill of revivor, see "Bill in Nature of Bill of Revivor." to bill in nature of supplemental bill, see "Bill in Nature of Sup- plemental Bill." to bill of review, see "Bill of Review." to bill in nature of bill of review, see "Bill in Nature of Bill of Review." INDEX. 1171 [KEFERENCES ABE TO PAGES.] ANSWER— Cont'd. to supplemental bill in nature of bill of review, see "Supplemental Bill in Nature of Bill of Review." to bill of revivor and supplement, see "Bill of Revivor and Sup- plement." to bill of interpleader, see "Bill of Interpleader." to bill de bene esse, see "Bill De Bene Esse." to bill to perpetuate testimony, see "Perpetuation of Testimony." to bill of discovery, see "Bill of Discovery." to bill for discovery and relief, see "Bill for Discovery and Relief." in contempt proceedings, 560. See "Contempt." to petition, 446. See "Petition." defenses by answer, of another suit pending, 292, 329. denial of excuse for nonjoinder of parties, 82. of purchaser for valuable consideration, 324, 326, 327. of laches, 306, 327. of statute of limitations, 327. of statute of frauds, 297, 327. of statutes in general, 328. of want of parties, 81-83. of want of equity, 329. of adequate remedy at law, 329. after demurrer on same ground overruled, 329. of usury, 328. in patent cases, 329. setting up matter arising after issue, 330. See "Cross Bill." on opening decree, 352. consisting of variety of circumstances, 324. See "Plea." inconsistent, 325. several, 325. which could be raised by plea, 325. in United States courts, equity rule 39, pp. 325, 1072. which could be raised by demurrer, 325. after demurrer for same matter overruled, 267. matter of plea in, 323, 324. frame of answer, 330, 331. title, 330. commencement, 331. technical traverse, 342. conclusion, 331. prayer, 323. signature, 331. omission of, 331. in person, 332. 1172 INDEX. [BEFEBENCES ABE TO PAGES.] ANSWER—Cont'd. of counsel, 332. certificate of counsel, unnecessary in federal court, 331. waiver of verification of, 333, 334, 662. See "Evidence"; "Oath"; "Jurat." waiver of oath, 282, 285, 332-334. See "Evidence"; "Oath"; "Jurat." as to one defendant, 333. as evidence where oath waived, 661-663. See "Evidence"; "Oath"; "Injunctions." evidence to overcome where oath waived, 657, 666-669. production of documents in case of, 403, 404. by amending bill after sworn answer put in, 662. order for, 662, 663. statutory provisions for, 661, 662. in United States courts, equity rules 39-43, pp. 1072, 1073. under oath, see "Oath"; "Jurat"; "Verification." dismissing bill after answer put in, 662. dismissing bill after answer put in, and filing new bill waiving oath, 662. amending bill to waive oath after answer put in, 662. time of filing, 350. after demurrer overruled, 266, 268. same objection raised, 267. before motion to elect, 391. of new parties, 351. further, 351. to cross bill, 350, 351. See "Cross Bill." striking from files, 333, 334, 352, 353. withdrawal of, 352. to part of bill, 230. joinder with other defenses, 229, 230, 325. with demurrer, 351. demurrer incorporated in, 321, 325. plea incorporated in, 229, 231, 325. joint, 21, 330, 332, 363. See "Joint Answer." several, see "Married Woman"; "Separate Answer." separate, 345. in support of plea, 273-275, 278, 279, 282. See "Plea." plea standing for, 275, 313. exceptions to, 313. see "Plea"; "Exceptions to Answer." demurrer cannot stand for, 267. overrules demurrer, 236. denying confederacy does not overrule demurrer for multifa- riousness, 236. in United States courts, equity rule 37, pp. 1071, 1072. INDEX. ii73 [EEFERENCES ABE TO PAGES.] ANSWER— Cont'd. overrules plea, 275, 282, 283. In United States courts, equity rule 37, pp. 236, 1071, 1072. as evidence, 109, 657-660. See "Evidence." against co-defendant, 663. See "Co-Defendants." for co-defendant, 665. See "Co-Defendants." wlien oath waived, 333, 661-663. See "Evidence"; "Oatli." effect of replication on, 380. See "Replication." on dissolution of injunction, 537, 538, 539. See "Injunction." reading at hearing, 671, 672. when counsel does not appear. Bacon's ordinance, 1055. admissions in, 342. of main charge of bill, 319. by persons not sui juris, 654. in unsworn answer, 653, 654. conclusive nature of, 653. proof of, 652, 653. where replication filed, 379, 649, 653, 654. as foundation for payment of money into court, 693-697. as foundation for production of documents, 400-404. as foundation for motion to dissolve injunction, 537-539. See "In- junctions." commission to take, 332. hy favor of court, 351, 352. taking bill pro confesso while on file, 185, 186. demurrer after time to, 258. motion to elect before, 391. reference of bill for scandal and impertinence after, 156. hearing on, after demurrer to part of bill sustained, 265. meeting complainant's title, 321. is part of record, 739. further answer, when to be filed, 371-373. after exceptions to part of bill sustained, 371. after submitting to exceptions, 365. to amended bill, 372. frame of, 372. title, 372. defenses allowable in, 371, 372. repetition of former answer in, 372. to exceptions; precedes further answer to amended bill, 372. exceptions to, 372. form of order for, 369. see "Exceptions to Answer." in United States courts, compelling, equity rules 18, 64, pp. 1066, 1079. 1174 INDEX. [EBrEBENCES ABE TO PAGES.] ANSWER— Contd. requisites of, equity rules 39-46, pp. 1072-1074. full answer, equity rule 39, p. 1072. extending time for, equity rule 19, pp. 1066, 1067. amendment of, equity rule 60, p. 1078. to interrogatories, equity rules 40-44, pp. 1072-1074. verification of, equity rule 59, p. 1078. supplemental or new, equity rule 46, p. 1074. taxable costs for, equity rule 25, p. 1068. filing, equity rules 1, 18, pp. 1062, 1066. leave to file demurrer under leave to answer after opening pro confesso, 204. taking evidence de bene esse, before, 678. form of jurat to answer of illiterate person, 335. form of answer, 336. of infant, 347. of answer in support of plea, 287. of demurrer coupled with, 258. of plea to part and answer to part of bill, 287. of answer in support of plea, 287. of answer and disclaimer, 378. of order for further answer, 369. of order to take answer without oath or signature, 335. ANSWER IN AID OF PLEA (see "Answer"; "Plea"). ANSWER IN SUPPORT OF PLEA (see "Answer"; "Plea"). APPEAL, diversity in practice on, 798. difference from writ of error, 802. difference from rehearing, 798. decrees appealable, 719, 800. pro confesso decree, 193, 196, 197. consent decree, 724, 725, 802. interlocutory order, 719, 800. consent order, 449. default decree, 802. decree after demurrer sustained, 265. English practice on, jurisdiction of house of lords, 799. petition of, 803. certificate of counsel to, 803. presentation of, 804. amendment of, 806. notice of, 803. recognizance for costs, 804, 805. INDEX. 1175 [eeferences are to pages.] APPEAL— Cont'd. answer to petition of, 803-805. general, 805. special, 805. order to answer, 804. printed case, 803. setting down for tearing ex parte, 806. advancing cause for hearing, 806. hearing of, 807. evidence on, 798. consideration of rejected evidence on, 809. determination of, 808. direction to modify decree, 808. correction of judicial errors, 754. affirming decree, 808. reversal of decree, 808. costs on, 809. withdrawal of, 806. cross appeals, 805. petition, 805. answer, 805, 806. order to answer, 805. staying decree of lower court, 806, 807. effect of appeal, 806. taking appeal as appearance, 211. objection on ground of citizenship in federal court on, 103. objection for want of parties on, 82. objection for defective service on, 178. by person in contempt, 571. in contempt proceedings, 571-573. from order that cause stand over for parties, 701. recital of consent, in consent decree, binds on, 725. effect of, 806. inconsistent defenses on, 326. entry of decree nunc pro tunc, to give time for, 751. petition for rehearing, staying time for, 793. receiver appointed after, 487. death of party pending, 751. revivor for, 920. ^ to give effect to, 920. bill of review pending, 986. after, 982, 983. rules of court below not judicially noticed on, 388. see "Rehearing"; "Bill of Review"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review"; "Bill of Revivor." 1176 i-NDEX. [befebences aee to pages.] APPEARANCE, definition of, 207. entering, 208. effect of, 212, 213. general, 207, 209, 212, effect of, 212, 213. waives defective process, 178. waives objections to Jurisdiction, 212. where not shown to be special, 209. to object for other cause than want of jurisdiction is, 209. form of, 216, changing to special, 215. special, 207. after general, 211, 215. confined to objections to jurisdiction, 209, 210. to object to process, 210. to object to service, 210. to petition for removal to federal court, 211. changing from general, 215. where not shown to be, is general, 209. waiver of, 210, 211. form of, 216. , who may appear, 213. by agent, 214. by committee, 222. by counsel, 213, 214, 224. in proper person, 213, 214, 224. by guardian ad litem, 218. of infant, 218. of married woman, 217. of corporation, 217. of foreign sovereign, effect of, 17. of husband and wife, 217. of infant, 218-220. of married woman, 217. of nonresident, 213. of receiver, in suit brought without leave, 26. what constitutes, 208. taking appeal,. 211. moving for continuance, 210. motion to set aside judgment, 211. contesting case on merits, 210, 211. making motions, 210. procuring time to plead, 210. authority to appear, 208, 209, 214. unauthorized appearance, 215. INDEX. 1177 [REFERENCES ABE TO PAGES.] APPEARANCE— Cont'd, voluntary, 207. compulsory, 207. conditional, 207. gratis, 207, 208. process to compel, 180. of corporation, 183. want of jurisdiction of subject-matter not waived by, 213. to petition for removal to federal court not general, 211. after defective process, 177. at rehearing, 793. revivor before, 927. to bill of revivor, 932. formerly necessary to pro confesso, 181-183, 185. time of, 212. recital of, in record, 208, 209. failure to appear, see "Pro Confesso"; "Order Pro Confesso"; "De- cree Pro Confesso"; "Hearing." in United States courts, equity rules 17-19, 54, pp. 1066, 1067, 1077. form of general, 216. form of special, 216. APPELLATE COURT, intervening petition in, 81. See "Intervention." see "Appeal"; "Bill of Review." APPOINTMENT, of committee, 22. of guardian, 22, 23. of guardian ad litem, 19, 218-223. of master in chancery, 593. of receiver, 480-483. ARBITRATOR, -as party to bill in case of fraud, 66. as party to bill to set aside award, 66. demurrer for making party, 250. bill of discovery against, 862. ARGUMENT, of demurrer, 262. See "Demurrer." of exceptions, 712. See "Exceptions to Answer." at hearing, 710-712. See "Hearing." of motions, 441-443. See "Motions." of plea, 309, 711. See "Plea." opening and closing, 711. reargument, 712. 1178 INDEX. [eeperences are to PAGES.J ARGUMENTATIVENESS, in bill, 104, 136. in plea, 275. ARREST, see "Attachment, Writ of"; "Process." ASSETS, parties to bill to recover, 61. bill of revivor, seeking disclosure of, 928, 929, 938. answer to bill of revivor, disclosing, 928, 929, 938. ASSIGNEE, as complainant, 62-65. as defendant, 64. pendente lite, as party. See "Purchase Pendente Lite"; "Pur- chaser Pendente Lite." joinder as party with assignor, 62, 63, 70. bill of revivor by or against, 923. bill in nature of bill of revivor by or against, 923, 1023-1028. in bankruptcy, see "Trustee in Bankruptcy." of insolvent, see "Trustee of Insolvent." ASSIGNMENT, voluntary, by parties, 64. involuntary, by parties, 64. parties in case of absolute, 63. parties in case of unconditional, 63. parties when disputed, 63. parties when denied, 63. parties to bill to set aside, equitable, 64. see "Assignee"; "Assignor"; "Purchaser"; "Purchase Pen- dente Lite"; "Purchaser Pendente Lite"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill"; "Bill in Nature of Bill of Revivor and Supplement." ASSIGNOR, as party, 62-65. joinder as party with assignee, 62, 63, 67. see "Assignee"; "Assignment"; "Purchaser"; "Purchase Pen- dente Lite"; "Purchaser Pendente Lite"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill"; "Bill in Nature of Bill of Revivor and Supplement." ASSISTANCE, WRIT OF, office of, 760. party may obtain, 760. purchaser under decree may obtain, 760. INDEX. 1179 [EBFEEENCES ARE TO PAGES.] ASSISTANCE, WRIT OP— Cont'd, against party to suit, 760. against purchaser pendente lite, 760. against whom issued, 760. clear right necessary to obtain, 760. where contest over possession, 761. application for, who may make, 760. notice of, 761. in Illinois, 761. showing on, 761. discretion of court in issuing, 761. order for, 760, 761. execution of, 760. in United States courts, equity rules 7, 9, p. 1064. ASSOCIATION, see "Corporation"; "Voluntary Association." ATTACHMENT WITH PROCLAMATIONS, 181. ATTACHMENT, WRIT OF, to compel appearance, 181. to compel answer, 181, 183. in United States courts, equity rule 18, p. 1066. for contempt, 551, 553, 556. rule to show cause why should not issue, 551, 557, 558. with proclamations, 181. in United States courts, equity rules 7, 8, 18, 64, 82, pp. 1064, 1066, 1079, 1086. ATTAINDER, capacity of attainted person to sue, 15. to be sued, 15. plea of, 290. ATTORNEY, authority to stipulate to abide event of another suit, 477. stipulations by, binding on clients, 466, 469. affidavit by, in behalf of client, 458. taking affidavit of client, 459. contempt by, 549. purging, 562. advice of, excusing contempt of client, 562. injunction against, 536. to restrain prosecution of suit, 66. as party, 65, 66. in case of fraud, 66. 1180 INDEX. [RBFEEBKCES AEE TO PAGES.] ATTORNEY— Cont'd. in injunction bill to restrain prosecution of suit, (iij. bill of discovery against, 862. extraordinary service on, 167-169. verification of bill by, 118. as receiver, 482. see "Counsel"; "Solicitor"; "Authority." ATTORNEY GENERAL, as party to represent crown, 17, 18. as defendant, 17. information by, 90-92. in behalf of idiot, 22. in behalf of lunatic, 22. in behalf of charity, 90, 91. proceeding without relator, 91. information and bill by, 91. exceptions to answer of, 358. AUCTIONEER, as party, 65. conducting sale for master, 7G2. AUTHORITY, to file bill, 157, 158, 574, 575. to appear, 208, 209, 214. AUTRE DROIT, parties suing in, description of character in bill, 102. bill of revivor by, 916-921, 923-927. bill in nature of bill of revivor by, 1023, 1028. costs in suits by, 774. see "Administrator"; "Executor"; "Guardian"; "Trustee"; "Costs." AVERMENT, see "Allegations." AWARD, parties to bill to set aside, 66. plea of, 303. see "Arbitrator." B. BACON, ordinances of, 1045-1061. INDEX. 1181 [REFEKENCES ARE TO PAGES.] BAIL, in contempt proceedings', 559. on attachment for failure to appear, 181. in ne exeat, 500, 511. BANK, joinder of depositors in, as parties, 73. bill of interpleader by, 812. to determine ownership of deposits, 812. bill in nature of bill of interpleader by, 832. payment into court of money in hands of, 395. BANKRUPT, bill by, without trustee, demurrer for, 248. demurrer for rnaking party to bill, 250. as party to bill to set aside fraudulent conveyance, 67. joinder as party with trustee, 66, 67. representation of, by assignee, 54. by trustee, 54. see "Trustee in Bankruptcy"; "Bankruptcy"; "Trustee of Insolvent"; "Insolvent"; "Insolvency." BANKRUPTCY, dismissal for want of prosecution pending abatement by, 585. plea of, after opening pro confesso, 200. bill in nature of supplemental bill, in case of, 895, 897. see "Insolvent"; "Insolvency"; "Trustee of Insolvent"; "Bank- rupt"; "Trustee in Bankruptcy." BAR, order barring persons not appearing to participate in creditors' suit, 43. of former decree, see "Res Judicata." plea in, see "Plea." BARONS, power of, a cause of rise of equity, 7. power of, as origin of confederating part, 105. BELIEF (see "Allegations"; "Information and Belief"). BILL, in English language, 90. history of, 90, 95, 96. commencement of suit by, 90. in United States courts, equity rules 11, 12, p. 1065. entitling, 102. caption, 102. 1182 INDEX. [bbfebences abb to pages.] BILL— Cont'd. parts of, 96, 101-113. address, 97, 101, 102. See "Address of Bill." introduction, 102. See "Introductory Part of Bill." premises, 103. See "Stating Part of Bill." stating part, 103. See "Stating Part of Bill." confederating part, 105. See "Confederating Part of Bill." charging part, 106. See "Charging Part of Bill." jurisdiction clause, 107. See "Jurisdiction Clause." interrogating part, 96, 107-109. See "Interrogating Part of Bill"; "Interrogatories." prayer for relief, 109-111. See "Alternative Prayer"; "General Relief"; "Prayer for Relief"; "Relief"; "Special Relief"; "Double Aspect." prayer for process, 111-114. See "Prayer of Process"; "Pro- cess." signature of, 115. by counsel in United States court, equity rule 24, p. 1068. verification of, 116-119. See "Jurat"; "Oath"; "Verification." unverified bill considered mere suggestion of counsel, 655. waiver of answer under oath by, 333. See "Answer"; "Evidence"; "Jurat"; "Oath"; "Verification." must be complete in itself, 133. certainty in, 104, 119-121. See "Certainty." argumentativeness in, 104, 136. See "Argumentativeness." repugnancy in, 139. with double aspect, 139-141. pleading conclusions in, 137. pleading evidence in, 136, 137. stating facts, 121, 122. allegations in, must support decree, 122, 734. proofs broader than, 122, 732-734. of title, 124, 125. of interest of complainant, 119, 120, 122. See "Complainants"; "Interest." of injury to complainant, 126. of interest of defendant, 126, 127. See "Defendants"; "Inter- est." of offer to do equity, 127, 128. excusing laches, 128, 129. of notice, 129, 130. on information and belief, 135, 136, 238, 519. See "Information and Belief." multifariousness in, see "Multifariousness"; "Misjoinder of Causes." misjoinder in, see "Misjoinder of Parties"; "Misjoinder of Causes"; "Multifariousness" ; "Parties." INDEX. 1183 [repeeences are to pages.] BILL— Cont'd. inconsistent causes of action in, 139. bad In part, 241. good in part and bad in part, 241. good in part, demurrer to, 241. admissions in, see "Admissions." in unverified bill, 653, 655. proof of, 653. impertinence in, see "Scandal and Impertinence"; "Exceptions to Bill." scandal in, see "Scandal and Impertinence"; "Exceptions to Bill." for relief against accident, 130. for relief from fraud, 131, 132. for relief from mistake, 130. stockholders' bill in behalf of corporation, allegations of, 55-57. in United States courts, equity rule 94, p. 1089. by receiver, allegations of, 27. against receiver, allegations of, 26. by foreign guardian, allegations of, 31. against numerous parties, allegations of, 41. as to parties out of jurisdiction, allegations as to, 38. allegations as to joinder of, 41, 82. for relief against usury, 128, 131. is part of record, 739. taking pro confesso, 185-206. requisites to sustain pro confesso decree, 188. defenses to, 229. See "Demurrer"; "Plea"; "Answer"; "Excep- tions to Bill"; "Cross Bill." demurrer to raise objection to equity of, 233. demurrer to bill good in part, 241. filing, 157-159. in United States courts, equity rule 1, p. 1062. in United States courts, necessary before subpoena issues, equity rules 11, 12, p. 1065. authority to file, 157, 158, 224. filing or serving copy, 157. striking from file, 158, 224. paragraphs in, 157. in United States courts, contents of, equity rule 21, p. 1067. frame of, equity rules 20-25, pp. 1067, 1068. taxable costs for, equity rule 25, p. 1068. 1184 INDEX. [EETEKKNCES ABE TO PAGES.] BILL— Cont'd. form of original bill, 97. See, for other forms, "Forms," anil titles of the various bills. see "Information"; "Information and Bill." BILL AND ANSWER, hearing on, see "Hearing on Bill and Answer"; "Replication." BILL DE BENE ESSE, jurisdiction to entertain, 849-851. office of, 849. when maintainable, 850. distinction from bill to perpetuate testimony, 850. is original bill, 93, 94. prayer of bill, 852. verification of bill, 117, 850. affidavit annexed to bill, 850. t defense to, 851. evidence, against whom available, 851. statutory substitutes for, 850. form of bill, 851. see "De Bene Esse, Taking Testimony." BILL IN NATURE OF BILL OF REVIEW, is bill not original, 94. distinction from bill of review, 976, 1020. lies before enrollment, 976, 1020. for new matter, 1021. for matter of law, 1021. on interlocutory decree, 1022. to final "decree, 1022. does not seek to alter decree, 1021. rare use of, 1020. in United States courts, 1020. in Florida, 1020. in Maryland, 1020. who may maintain, 1020. devisee, 1020, 1021. remainderman, 1020, 1021. person with no interest, 1021. parties to, 1020. frame of, 1022. prayer of, 1022. affidavit to support, 1021. diligence in filing, 1022. leave to file, 1021. INDEX. 1185 [KEFEKENOES ABE TO PAGES.] BILL IN NATURE OF BILL OF REVIEW— Cont'd, staying decree on original bill, 1003. petition for rehearing witli, 1021. form of, see 1020. BILL IN NATURE OP BILL OF REVIVOR, is biU not original, 92, 94. is original merely for want of privity. 1023. office of, 1023. distinction from bill of revivor, 1024. distinction from bill in nature of supplemental bill, 1024, 1032. by alienee, 1023. by administrator, 1024. by devisee, 1023-1025. by assignee, 1024, by executor, 1024. by purcliaser, 1024, 1025. by heir, 1025. in case of bankruptcy, 1023. in case of insolvency, 1023. parties claiming by operation of law, 1024. parties claiming by act of party, 1024. parties by privity in deed, 1025. parties in privity of estate, 1024, 1025. parties in privity of representation, 1024, 1025. parties to bill, 1025, 1026. frame of bill, 1026. statement of original proceedings, 1026. charge of validity of transmission, 1026. prayer of, 1026. defense to, 1028. demurrer to, 1028. plea to, 1028. answer to, 1028. statute of limitations as defense against, 1024. benefit of original bill on, 1023. pendency of suit, from what time, 1024. priority of answer where cross bill filed, 1024. revivor on, 1028. in United States courts, equity rule 56, p. 1077. form of bill, 1026. BILL IN NATURE OF BILL OF REVIVOR AND SUPPLEMENT, definition of, 946. when proper, 946. use of, in Michigan, 947. by purchaser pendente lite, 946. Equity— 75 1186 INDEX. [REPEEENCES ABE TO PAGES.] BILL IN NATURE OF BILL OP REVIVOR AND SUPPLEMENT— Cont'd, by devisee, 947. leave to file, 948. substitution of parties by, 78. BILL IN NATURE OP ORIGINAL BILL, 92-95 (see "Bill in Nature of Bill of Revivor"; "Bill in Nature of Bill of Revivor and Supple- ment"; "Bill of Review"; "Bill in Nature of Bill of Review"; "Sup- plemental Bill in Nature of Bill of Review"; "Bill in Nature of Sup- plemental Bill"; "Cross Bill"; "Bill to Impeach Decree for Praud"; "Bill to Suspend or Avoid Execution of Decree"; "Bill to Carry De- cree into Execution"). BILL IN NATURE OP SUPPLEMENTAL BILL, is bill not original, 94. office of, 1029. distinction from supplemental bill, 887, 895, 1031. distinction from bill in nature of bill of revivor, 1024, 1032. is a new suit, 1033. not addition to original suit, 1033. not continuation of original suit, 1033. by assignee, 1029. by assignee of patent, 1029. by surety on appeal bond, 1031. in case of bankruptcy, 1029. where complainant deprived of whole interest, 1029. where same interest remains before court, 1031. to bring new interest before court, 1031. to bring new interest in third person before court, 1029. to bring new parties with new interests before court, 1031. improper where no alteration of interest, 1031. for relief on different principles, 1030. before decree, 1032, 1033. after direction for decree, 1031. frame of, 1034. requisites of, 1034. statement of original proceedings in, 1034. prayer of, 1034. leave to file after direction for decree, 1031. proceedings on, 1033, 1036. new defense to suit, 1033. benefit of original proceedings on, 1032. effect of decree on original bill, 1033. substitution of parties by, 78. form of, 1034. INDEX. 1187 [EEFEBENCES ABE TO PAGES.] BILL IN NATURE OF SUPPLEMENTAL BILL— Cont'd. see "Supplemental Bill"; "Bill of Revivor"; "Bill in Nature of Bill ,of Revivor"; "Bill of Revivor and Supplement"; "Bill in Nature of Bill of Revivor and Supplement." BILL OF CERTIORARI, is original bill, 93, 835. office of, 835. rare use of, 93, 836. use of, in United States, 836. use of, in Virginia, 93. prayer of, 835. Bacon's ordinance, 1048. form of, 836. BILL OF DISCOVERY, is original till, 94. office of, 854. aids other jurisdictions, 854. auxiliary to suit at law, 855-858. in aid of foreign court, 854. in aid of defense at law, 859. in aid of court competent to grant relief, 854. distinction from WU for discovery and relief, 855, 856. matter discoverable, 859-861. exposing to penalty, 861. exposing to forfeiture, 861. in violation of professional confidence, 861, 862. tending to criminate, 861, 864. relating to defendant's title, 322, 860. relating to complainant's title, 860. rebutting evidence, 859. documents, 863, 864. documents relating to both titles, 860, 863, 864. where discovery not necessary, 855-858. where discovery material, 855. where discovery against policy of law, 862. In case of fraud, 861. of usury, 128. necessity of demand, 885. who may maintain, 859. plaintiff at law, 859. defendant at law, 859, 861, 862, 885. alien, 16. title to maintain, 862. parties to, 871. complainant, 859. 1188 INDEX. [kefekences are to pages, _; BILL OF DISCOVERY— Cont'd, title of, 860. must be party to action, 861. joinder of parties, 872. against whom maintainable, 861. against arbitrator, 862. against attorney, 872. against agent of corporation, 67-69. against alien, 860, 861. against corporation, 67-69, 861. for production of corporate books, 694. against habitual drunkard, 871. against infant, 871. against married woman, 862. against officer of corporation, 67-69, 860, 861, 866, 867, 869. against witness, 861. in foreign state, 694. defendant's interest, 860. title, 860. power to make discovery, 880. bound to make discovery when in power, 880. must be capable of discovery, 865, 866. frame of bill, 862. requisites of, 862-868. must state title to discovery, 862. must state interests of parties, 862. must state cause of action at law, 863. must state defendant's interest, 863, 864. allegation of materiality of discovery, 864-866. allegation of necessity of discovery, 864. allegation of privity, 863, 864. allegation of defendant's capability of discovery, 866. deeds, description of, 863. allegation of possession of, by defendant, 866. averment of loss of, 866. certainty, 863. prayer for relief, 856, 857, 866-868. prayer for injunction, 868. prayer of discovery, 868. prayer for process, 867. waiver of answer under oath, 868, 869. verification, 116-118, 869. where discovery of deeds sought, 869, 870. where deeds lost or destroyed, 870. where legal relief sought, 869, 870. INDEX. 1189 [rbfebences aee to pages.] BILL OF DISCOVERY— Cont'd, process on, 875. taking pro confesso, 878. defenses to, 875-883. demurrer to, 875. to bill bad in part, 878. where pretense is alleged in bill, 878. to bill praying discovery and relief, 876. to relief where discovery incidental, 877. to discovery, where relief demurrable, 856-858, 876. good to relief defeats discovery, 876. grounds of demurrer, 875-878. discovery sought for part of matter, 877. for want of parties, 871, 877. for want of equity, 877. for want of privity, 878. for want of interest of defendant, 878. for wint of interest of complainant, 878. for want of jurisdiction, 878. discovery improper, 878. discovery immaterial, 878. discovery exposing to penalty, 857, 858. discovery exposing to forfeiture, 857, 858. discovery incriminating defendant, 857, 858. witness a party, 875. bill praying relief, 856. demurrer and answer, 881. plea, 875, 878, 879. grounds of plea, 879. want of interest of defendant, 879. want of interest of complainant, 879. purchaser for valuable consideration, 879. payment, 879. want of jurisdiction, 879. discovery improper, 879. discovery exposing to penalty, 879. discovery exposing to forfeiture, 879. discovery violating professional confidence, 879. plea supported by answer, 882. plea and answer, 881. answer, must be full, 880. must be precise, 880. on information and belief, 880. general denial insufficient, 880. protecting from discovery, 876, 880, 881. 1190 INDEX. [BEFEBENCES ABE TO PAGES.] BILL OF DISCOVERY— Cont'd. * must state all facts excusing discovery, 881. where discovery exposes to penalty or forfeiture, 876. where discovery incriminates defendant, 876. where discovery violates professional confidence, 876. denying allegations of bill, 883. denying discovery, 884. denying title, making discovery, 882. disclosing no facts, effect of, 883, 884. setting up title, making discovery, 882. may state circumstances favorable to defendant, 880. as evidence, 661, 883. weight of, 883. accompanied by plea or demurrer, 881. and demurrer, 881. and plea, 881. where oath waived, 869. effect of, 882. amendment of bill, 870, 871. to pray relief, 419, 870, 871. striking out one complainant, 859. exceptions to answer, 881. hearing, 883. dismissal, 883, 884. cross bill for discovery, 885, 949. proceedings on, 883. motion to elect, 389. revivor of, 918. supplemental bill of, 886. costs of, 886. costs on, 883, 884, 886. statutory substitutes for, 853. jurisdiction to enforce discovery still exists, 853. staying action at law until answer, 859. every bill is bill of, 853, 854. form of, 872. see "Bill for Discovery and Relief"; "Production of Documents.' BILL FOR DISCOVERY AND RELIEF, distinction from bill of discovery, 855-858. necessity of discovery, 855. discovery where no ease for relief made, 858. title to relief, 857, 858. bill, 855-858. allegation of necessity of discovery, 855. demurrer to, 855, 856. INDEX. 1191 [BEFEBENCES ABE TO PAGES.] BILL FOR DISCOVERY AND RELIEF— Cont'd. to whole bill, 856, 857. to discovery, 857, 858. to relief, 855, 857. to relief wliere discovery incidental, 877. to discovery wliere relief demurrable, 877. good to relief generally defeats discovery, 876. answer to discovery, 855-858. see "Bill of Discovery"; "Answer"; "Plea"; "Demurrer." BILL OF EXCEPTIONS, to preserve evidence in equity, 739. on feigned issues, 627, 639. BILL OF INTERPLEADER (see "Interpleader, Bill of"; "Interpleader. Bill in Nature of Bill of). BILL OF PEACE, defendants in, 76, 77. BILL OF REVIEW, definition of, 976. office of, 976. distinction from supplemental bill, 976. distinction from bill to impeach decree for fraud, 1005. distinction from bill in nature of bill of review, 976, 1020. lies only to enrolled decree, 748, 782, 976. Bacon's ordinance concerning, 976, 1045, 1046. grounds of, 976-983. for error apparent, 977. master's report examined on, 978. court examines record, 978, 1003. I only errors apparent considered, 977, 979, 1002, 1003. i in decree on mandate of appellate court, 979. evidence not examined, on, 978. truth of findings not considered, 1002. not for wrong decision on facts, 977. for matter of abatement, 978. for error in form, 978. for error of law, 977. for error of fact, 977, 978. ' for errors judicial, 754. for error in execution of decree, 979. for new matter, making new issue, 981, 982. to prove old issue, 980. cumulative evidence, 980. impeaching testimony, 980. making new case, 980. 1192 INDEX. [EKFEEENCES ARE TO PAGES.] BILL OF REVIEW— Cont'd. unknown before, 977, 979, 980. must be relevant and material, 980. must be discovered after time for use in original suit, 980, 981. must change decree, 980. diligence in discovery of, 980, 981. not before known to solicitor, 981. to impeach decree for fraud, 990. original bill demurrable, 978. original bill showing no ground of relief, 978. evidence to show error, 978. wrong decision on facts, 977. decrees reviewable, consent decree, 724, 986. decree contrary to statute, 978. final decree only, 984. decree void, 978. pro confesso decree, 193, 986. on former bill of review, 983, 984. enrolled decree, 748, 749, 782, 976. decree includes what, 1002, 1003. performance of decree by complainant, 987, necessity of, 987. Bacon's ordinance concerning, 987, 1045. does not waive right to file bill, 988. not jurisdictional, 988. before filing bill, 986, 987. after filing bill, 987. waiver of performance by defendant, 988. answer or demurrer waives, 988. . by deposit of money, 987. by payment of money, 987. by giving possession of lands, 987. demurrer for failure to aver, 1001. extent of, 987. exception to requirement of, 987, 988. parties to bill, 984, 985. persons not prejudiced, 984. remainderman, as complainant, 985. persons in privity, as complainants, 985. third persons aggrieved as complainants, 984. successful complainant in original bill as complainant, 985. administrator as complainant, 984, 985. heir as complainant, 984, 985. executor as complainant, 984, 985. parties to original bill as, 984. - - " INDEX. 1193 [references ABE TO PAGES.] BILL OF REVIEW— Cont'd. persons with no interest as, 984. infant as complainant, 985. not restricted to bill of review, 985. representatives of party to original bill, 984. defendants, 985. acceptance of benefit of decree waives right to file, 988. frame of bill, 989. statement of former proceedings, 989, 990. negativing negligence, 990. averment of performance, 991. must not state evidence in original cause, 990. statement of new matter, 990. statement of names of witnesses, giving new evidence, 990. must show Sled in time, 989. multifariousness in, 143. bill of revivor combined with, 991. supplemental matter added to, 991. prayer, 990, 991. verification, 991. requisites same as for petition for rehearing, 788. cross bill sustained as, 991. pleading filed as petition for rehearing standing as, 788. court in which filed, 994. time of filing, in England, 988. for new matter, 989. for error apparent, 988, 989. pending appeal, 986. after appeal determined, 982, 983. after affirmance on appeal, 982. leave to file, aflSdavit, 988, 989. petition tor, 995. hearing on, 996. notice of application for, 995. for new matter in discretion of court, 983. for new matter, afiidavit for, 995. application for, in what court, 994, 995. by appellate court, 982, 983. scope of permission must be observed, 983. denying to applicant, and granting for protection of others, 996. for error apparent, unnecessary, 995. after appeal, for new matter, 982, 983.- after appeal, for error apparent, 982, 983. effect of filing, 1003. 1194 INDEX. [EEFEEENCES ABE TO PAGES.] BILL OF REVIEW— Cont'd. does not stay decree on original bill, 1003. limitation on filing, 988. security to adverse party, 997. for costs and damages. Bacon's ordinance concerning, 1046. process, 997. substituted service on, 169. appearance, how enforced, 998. defenses, 998. demurrer, for want of parties, 1000. for failure to show performance, 1001. special, for setting out evidence in original cause, 1000. to bill for new matter, 1000. new matter not relevant, 1000. to bill for error apparent, 1000. bill not filed in time, 1000. to opening enrollment, 998, 999. •waives performance of decree, 988. argument of, 1002. saving benefit of, to hearing, 1002. overruled, 1002. sustained, dismissal on, 1001. sustained, new bill after, 1001, 1002. plea, of former decree, 998, 999. of purchase for value, 999. overruled, 1002. allowed, dismissal on, 1001. answer, 998. waives performance of decree, 988. where benefit of demurrer saved to hearing, 1002. proceedings on, 998, 999. burden of proof, 1002. examination of record, 998, 999. stay of decree, 1003. dismissal on demurrer sustained, 1001. dismissal on plea sustained, 1001. decree on, 1001, 1002. decree of review is interlocutory, 1002. bill sustained, restitution of money, 1003. costs, 1003. restitution of costs of original suit, 1003, 1004. successive bills, 983. effect of former bill, 983, 984. stay of decree on original bill, 1003. INDEX. 1195 [BEFEBENCES ABE TO FAOES.] BILL OF REVIEW— Cont'd. in United States, 976. form of bill for errors of law, 991. of bill on discovery of new matter, 992. of order granting leave to file, 996. of order by appellate court granting leave to file, 997. BILL OF REVIVOR, is bill not original, 94. office of, 915. continuation of original suit, 915, 1023. distinction from bill in nature of bill of revivor, 1024. when proper, 916. lies where interest arises by operation of law, 923. must be matter to be litigated, 918. on death, when unnecessary, 917. of complainant, 917. of one executor, 918. of one trustee, 918. of one joint tenant, 917. of sole complainant, 917. of complainant in foreclosure suit, 917. after decree, 917. where interest survives, 917, 918. before appearance, 927. by marriage, 915, 916. of female complainant, 921. of female defendant, when unnecessary, 916, 917. order that cause proceed against her in new name, 917. on dissolution of corporation, 917. by or against whom filed, 923, 924. persons by or against whom revivor may be had, alienee, 923-926. administrator, 916, 919, 923, 925, 927. administrator de bonis non, 924-927. assignee, 923-927. devisee, 917, 918, 923, 927. executor, 916, 919, 923, 925-927. heir, 916, 919, 923, 925-927. purchaser, 923, 1026. complainant's representative before decree, 920, 921, 925-927. defendant before decree, 921, 922. after decree, 922.. defendant on complainant's neglect, 923. complainant after decree, 922. 1196 INDEX. [RBFEEENCES ABE TO PAGES.] BILL OF REVIVOR— Cont'd. before decree, by defendant, 921. after decree, by complainant, 922. by defendant, 922. revivor for part of matter in litigation, 918. as to personalty, 919, 921. as to realty, 919, 921. revivor of bill of interpleader, 917. of bill for account, 920, 922. of cross bill before decree, 920, 922. of cross bill after decree, 920. of bill of discovery after answer, 918. of bill for injunction to punish breach, 935, 936. on abatement, pending action at lav7, 704. for appeal, 920. to give effect to appeal, 920. for costs, 919. for costs out of estate, 919. for costs where decree unexecuted, 919. parties, defendants to original bill, 925. defendant not having appeared to original bill, 932. surviving complainants, 925. complainant in original bill refusing to join, 925. complainants in original bill as defendants, 925. . defendant to original bill who has not answered, 927. on death of joint complainant, 926. on death of sole complainant, 925. on death of defendant, 925. on death of defendant executor, 926. representative of deceased, 925. on death of defendant married woman's husband, 926. in suit for personalty, 926. in suit on contract, 926. in foreclosure suit, 927. in suit for realty, 927. after decree on original bill, 924, 926. demurrer for want of, 933. privity of parties in, 1024. substitution of parties by, 78. citizenship of parties in federal court, 915. frame of bill, 927. statement of former proceedings, 927, 928. allegation of title to revive, 928. combining bill of review with, 991. prayer of, 928. INDEX. 1197 [befkeences are to pages.] BILL OF REVIVOR— Confd. for answer, 928. for answer to original bill, 929. for answer on revivor against administrator, 928, 929. for answer on revivor against executor, 928, 929. for answer where death before answer to original bill, 929. prayer of subpoena to revive, 929. prayer of subpoena to revive and answer, 929. filing bill, 931. time of filing, complainant's time, 922. defendant's time on complainant's neglect, it2'S leave to file unnecessary, 931, 932. process on, 932. subpoena to revive, 929. to revive and answer, 929. substituted service on, 932. appearance to, 932. demurrer or plea necessary to prevent revivor, 934. demurrer to, 933. for want of privity, 933. for want of interest, 933. overruled, order to revive, 936. plea to, 933. of statute of limitations, 933. setting up sam« defense as to original bill, 934. answer to, 928. does not prevent revivor, 934. confined to bill of revivor, 934. defense to original bill in, 935. controverting title to revive, 934. only right to revive in question, 934. waives objections to bill, 934. by executor or administrator, 928, 929. signature of counsel to, 935. contesting revivor at hearing on, 937, 938. exceptions to answer, 935. replication, 935. where none filed to original answer, 935. hearing, when necessary, 937. with original cause, 938. on bill praying revivor, 937. on bill praying admission of assets, 938. on bill filed after original cause set down, 938. on bill filed before decree, 938. on bill filed after decree, 938. 1198 INDEX. [references ABE TO PAGES.] BILL OP REVIVOR— Cont'd. on bill containing supplemental matter, 938. on answer contesting revivor, 937. separately, 938. on further directions, 938. questions litigated on, 938, 939. matter litigated on original bill, 938, 939. order to revive, 935. revivor, effect of, 939. effect on contempt proceedings, 939. substantiates original suit, 939. places suit in condition it was in at abatement, 939. defendant obtaining, on complainant failing to, 936. on demurrer overruled, 936. breach of injunction before, 935. statutory substitutes for, 78, 915, 916. whether exclusive, 78, 915. when parties nonresidents, 915. where supplemental matter to be added, 916. in United States courts, equity rules 56, 58, pp. 915, 1077-1078. form of bill of revivor, 930. of prayers of bills, 929. of order to revive, 936, 937. of order to revive on answer consenting, 937. of order to plead or demur, 936. of order on complainant's neglect to obtain order to revive, 937. BILL OF REVIVOR AND SUPPLEMENT, see "Bill in Nature of Bill of Revivor"; "Bill of Revivor and Sup- plement"; "Abatement." is bill not original, 94. office of, 941. to cure defects in original bill, 942. on death of party, 942. by purchaser pendente lite, after death of party, 942. frame of bill, 943. is compound of bills of revivor and supplement, 941, 943. new matter added to bill of revivor, 941, 942. supplemental matter in, 941-943. verification of, 941-943. time of filing, 942. before decree, 942. after decree, 942. leave to file, 943. affidavit to support, 943. substituted service on, 169. INDEX. 1199 [BErEEENCES ABE TO PAGES.] BILL OF REVIVOR AND SUPPLEMENT— Cont'd, defenses to, 945. demurrer to, 941, 945. plea to, 945. exceptions to, 945. hearing on, 945. proceedings on, 945. order to revive, 945. substitution of parties by, 78. form of bill, 943. BILL TO CARRY DECREE INTO EXECUTION, is bill not original, 94. office of, 1015. when proper, 1015. who may file, 1015, 1016. want of interest of complainant, 1018. by or against assignee, 1015. decree to be executed, must be just, 1016. examination of, 1016. complainant cannot controvert, 1017. only defendant can controvert, 1017. varying, 1016. refusal to enforce, 1016, 1017. of inferior court, 1015, 1016. executory, 1017. in partition, 1016, 1017. frame of bill, 1016. bill of revivor with, 1016. supplemental matter with, 1016. demurrer to, 1017. plea to, 1017, 1018. form of bill, 1017. BILL TO IMPEACH DECREE FOR FRAUD, is bill not original, 94, 1005. distinction from bill of review, 1005. object is to vacate decree, 1005. fraud, for which bill lies, character of, 1005-1007. must be actual, 1006. constructive, 1006. must be extrinsic, 1006. during original proceedings, 1006, 1007. perjured evidence, 1007. fraudulent instrument, 1007. 1200 INDEX. [betebences aee to pages.] BILL TO IMPEACH DECREE FOR FRAUD— Cont'd. nonjoinder of parties, lOOT. inducing defendant to enter appearance, 1007. decrees impeached, consent decree, 1006. interlocutory order, 1005. against trustee, lOOG. petition in lieu of, 1005. parties to, 1008. citizenship in federal court, 1009. by stranger to original proceedings, 1006. by cestui que trust, 1006. frame of bill, 1007. statement of former proceedings, 1007. statement of decree, 1007. must show meritorious defense, 1008. multifariousness iu, 143, 1008. prayer, 1008. filing bill, 1008. leave to file, 1008. of appellate court, after appeal, 1008, 1009. time of filing, 1007. limitation on filing, 1007. demurrer confined to bill and exhibits, 1008. restoration of rights under, 1005. bill of review, mingled with, 990, 1009. in the United States courts, decree of federal court, 1009. decree of state court, 1009. form of bill, 1009. BILL TO SUSPEND OR AVOID EXECUTION OF DECREE, is bill not original, 94. office of, 1013. history of, 1013. in United States, 1014. in United States courts, 1014. BILLS, classification of, 92-95. BLIND PERSONS, verification of pleading by, 464. BONA FIDE PURCHASER, see "Purchaser for Value." INDEX. 1201 [eefeeences are to pages.] BOND, injunction, 519, 531. of master in chancery, 593. ne exeat, 509. receiver's, 494. appeal, see "Appeals." for costs, see "Costs." BONDHOLDER, representation of, by trustee, 51, 52. bill by equitable owner, 61. multifariousness in bill by, 143. see "Mortgagee." BURDEN OF PROOF, on party holding affirmative, 651. in case of fiduciary relations, 651. on trial of feigned issue, 636, 637. on bill of review, 1002. in suit involving real property, 651, 652. c CANCELLATION, BILL FOR, see "Rescission." CANON LAW, similarity of equity pleading and practice to proceedings in, 88. CAPACITY TO SUE OR BE SUED, of aliens, see "Alien." of attainted person, see "Attainder." of common drunkard, see "Drunkard, Common." of corporation, see "Corporation." of excommunicated person, see "Excommunication." of foreign sovereign, see "Sovereign." of government, see "Government." of idiot, see "Idiot." of infant, see "Guardian"; "Guardian ad Litem"; "Infant"; "Next Friend." of insane person, see "Lunatic." of lunatic, see "Lunatic" ; "Committee"; "Guardian"; "Guardian ad Litem." of married woman, see "Married Woman"; "Husband and Wife." of outlaw, see "Outlawry." of receiver, see "Receivers." Equity — jd 1202 INDEX. [BEFEEENCES ABE TO PAGES.] CAPACITY TO SUE AND BE SUED— Cont'd. of spendthrift, see "Spendthrift." of sovereign, see "Sovereign." of state, see "State." see "Complainants"; "Defendants"; "Demurrer"; "Plea." CAPTION, see "Title"; "Bill"; "Answer"; "Demurrer"; "Plea"; "Exceptions to Answer"; "Orders"; "Decree"; "Affidavit." CAUSE STANDING OVER, see "Hearing"; "Parties"; "Proofs"; "Rehearing." CERTAINTY, classes of, 88. causes of want of certainty, 120. in equity pleading, 88. in bill, ,119-121, 124-127. in stating part, 104. in allegation of defendant's title, 127. in excusing laches, 128, 129. in avoiding statute of limitations, 128, 129. in bill of discovery, 863. in bill for injunction, 520. demurrer for want of, 88, 89, 242. in plea, 88. in subpoena duces tecum, 692. in affidavit, 462. CERTIFICATE OF COUNSEL, in United States courts, equity rule 31, pp. 1070, 1071. to demurrer, 255, 286, 331. proceedings on omission of, 269. to plea, 286. to answer unnecessary, 331. under English practice, to petition for rehearing, 789. to petition of appeal, 803. CERTIORARI (see "Bill of Certiorari"). CESTUI QUE TRUST, representation of, by trustee, 51, 52. decree against trustee binds, 52. bill to impeach decree for fraud by, 1006. see "Trustee." CHANCELLOR (see "Lord Chancellor"). INDEX. 1203 [betekenoes aee to pages.] CHANCERY (see "Equity"). CHARACTER, demurrer to character of complainant, 244, 247-250. plea to character of complainant, 290, 291. CHARGING PART OF BILL, origin of, 96. office of, 106. is superfluous, 106. use of, by Lord Kenyon, 96. dispensed with, 106. in United States courts, equity rule 21, p. 1067. interrogating part cannot supply defects in, 106. interrogatories founded on, 108. interrogatories construed by, 106. statement of case by way of pretense in, 106. truth of allegations in, 107. perjury founded on, 107. dispenses with special replication, 106. jurisdiction not ousted by, 107. form of, 99. CHARITY, ' ; certainty in pleadings respecting, 91. information on behalf of, 90, 91. ^ prayer for relief in bills for, 109. costs of suit to administer, 773. CIRCUIT COURT (see "United States Circuit Court"). CIRCUIT COURT OF APPEALS (see "United States Circuit Court of Appeals"). CITIZENSHIP, limitations of, on jurisdiction of United States courts, 58, 59. allegation of, 102, 103. demurrer for failure to state, 103. plea for want of, 282. objection for want of allegation on appeal, 103. in bill of revivor, 915. in bill to impeach decree for fraud, 1009. CIVIL LAW, similarity of equity pleading to proceedings in, 88. CLASS, suits in behalf of, creditors, 42, 43. 1204 INDEX. [EEFEBENCES ABE TO PAGES.] CLASS— Cont'd. legatees, 43. stockholders, 42, 44. voluntary associations, 37, 43-45. must be beneficial to those represented, 43. representation of all interests necessary, 41, 44. suits against, voluntary associations, 37, 43-45. order barring persons not appearing in suit for, 43. decree as res judicata against, 43. control of proceedings, 578. right to dismiss bill, 578. see "Interest"; "Common Interest"; "Complainants"; "Defeml ants"; "Parties." CLASSIFICATION, of bills, 92-95. of bills not original, 94, 95. of bills in nature of original bills, 93-95. of original bills, 93, 94. of parties, 57-59. of demurrers, 243, 244. of pleas, 271, 281-307. CLERK OP COURT, appointment of, as receiver, 483. not duty of, to draw decTees in Illinois, 747. office of, in United States courts, equity rule 2, p. 1062. duties and powers of, in United States courts, equity rules 2-19, pp. 1062-1067. CLERKS IN CHANCERY, remissness of, in devising writs, a cause of equitable jurisdiction, 6. CO-COMPLAINANTS, bill filed in name of, without authority, 574, 575. motion to dismiss bill filed without authority of, 574. notice of motion to dismiss, 574. dismissal of bill by, 575-578. aflidavit of noncollusion by, in interpleader, 821. see "Complainants." CODE OP CIVIL PROCEDURE, adoption of, 10, 11. CO-DEFENDANTS, demurrer of, 236. admission of, 238. INDEX. 1205 [EEFEKENCES ABE TO PAGES.] CO-DEFENDANTS— Cont'd. does not admit facts as to other defendants, 238. demurrer after answer of, 237. disclaimer of, 375. where rights claimed against, 875. answer as evidence against, 663. where jointly interested, 664. when one claims under other, 664. where one refers to other's answer, 664. separate answer, 664. answer as evidence for, 665. reference to answer of other, 346. pro confesso against one, 191. affidavit of one to open pro confesso, 201, 202. defense by one, after pro confesso, against other, 191. where personal defense established, 191. dissolution of injunction on answer of one, 539, 540. decree between, 727, 953, 954. necessity of cross bill, 953, 954. without cross bill, 953, 954, cross bill between, 953, 954. production of papers by one on motion of other, 406. cross bill to obtain, 406. see "Defendants"; "Answer"; "Evidence." COLLUSION (see "Interpleader"). COLONIES, courts of equity in, 9, 10. COMBINATION (see "Confederating Part"; "Voluntary Association"). COMITY, foreign corporations sue and defend by, 29-31. foreign receivers sue and defend by, 28, 29. staying suit, where other suit pending, 294. COMMISSION, to take answer, 332. to take depositions, 677-682. to examine witnesses de bene esse, 678, 679. jurisdiction to grant, 680. in United States courts, equity rules 1, 67-70, pp. 1062, 1080-1083. see "Letters Rogatory"; "Depositions." COMMISSIONER, to take answer, 332. to take testimony, 677-682. 1206 INDEX. [eefeeences abb to pages.] COMMISSIONER— Cont'd. in United States courts, equity rules 67-70, 78, pp. 1080-1083, 1085. see "Commission"; "Examiner in United States Court." COMMISSION OF REBELLION, to enforce appearance, 181. to enforce decree, 757. COMMITTEE, of idiot, suit in behalf of, 22-24. defense of suit for, 24, 222, 223. of lunatic, suit in behalf of, 22, 23. defense of suit for, 24, 222, 223. when idiots and lunatics have none, 22, 23, 222, 223. adverse interest of, 22, 222, 223. appointment of, 22. appointment, of, as guardian ad litem, 24, 222, 223. parties in suits by, 22, 23. appearance by, 222. waiver of rights by, 25. foreign committee, right of, to sue, 31. of voluntary association, suit by, 44. see "Guardian"; "Guardian ad Litem"; "Idiot"; "Lunatic." COMMON INTERESTS, complainants having, 70. joinder of, 70. defendants having, 70. with complainants, 130. multifariousness in bill against, 151. in part of subject-matter, multifariousness, 145. joinder of numerous persons having, 37, 42-47, 51. of unconnected parties having, 71. of persons not having, 71, 72. representation of parties having, 51. see "Interest"; "Complainants"; "Defendants"; "Parties." COMMON LAW. rights at, 3, 4. wrongs at, 3, 4. remedies at, 4, 5. common-law courts, see "Courts of Common Law." COMMON-LAW SIDE OF COURT OP CHANCERY, 6, 90. COMMUNITY OP INTERESTS (see "Common Interests"). COMPETENCY (see "Capacity to Sue and be Sued"). INDEX. 1207 [KEFEEENCES ABE TO PAGES.] COMPLAINANTS, persons having common interests, 70. not having common interests, 71. claiming under common title, 73, 148. having common object, 71. having adverse interests, 70. having common interest with defendant, 130. suffering same injury, 148. all must have interest, 70, 71. all must be entitled to relief, 69-71. interest not coextensive, 147, 148. interest to sustain bill, 249, 250. doubtful title, 250. naked title, 249. scintilla juris, 249. litigated title, 249. joinder of, assignor and assignee, 62-64. creditors, 73. See "Creditors"; "Creditors' Bill." depositors in bank, 73. in case of fraudulent representation, 72, 73. owners of land derived from common source, 73. owners of land claiming under separate conveyances, 149. stockholders, 73. See "Stockholders"; "Corporations." unconnected persons having common interest, 71. wards entitled to same estate, 74. to prevent multiplicity of suits, 71-73. in bill for contribution, 149. misjoinder of, 84, 85. effect of, 71. multifariousness from, 147. demurrer for, 235, 253. multifariousness from misjoinder of, 147. allegations in bill as to, injury to complainant, 125, 126. interest of complainant, 119, 124-126. title of complainant, 119, 125, 126. performance, 127. bill in personal and representative capacity, 149. suit by, in different capacities, 149. defendant compelled to assume position of, 74. defendant substituted for, 418. refusal to join as, 74. description of, in bill, 102, 103, 124. dismissal of bill by, 574-582. by one complainant, 578, 579. bill filed without authority, 574, 575. 1208 INDEX. [beeebences are to pages.] COMPLAINANTS— Cont'd. right to. 575-578. solicitor filing bill without authority of, 157, 158, 574. demurrer, to person of, 243, 247-249. to character of, 244-248. for disability of, 244, 247, 248. *for want of interest of, 244, 249. for want of interest of one, 249. for nonjoinder of, 81, 82, 235, 253. for misjoinder of, 235, 253. bill filed in name of fictitious person, 248. plea, to character of, 291. to person of, 289, 290. bill to make a person complainant, 77. motion to stay proceedings, brought in name of fictitious person, 248. see "Co-Complalnants" ; "Parties"; "Interest"; "Common In- terests"; "Joinder of Parties"; "Misjoinder of Parties." COMPROMISE (see "Consent Decree"). CONCLUSIONS, allegation of, 125, 136. admission of, by demurrer, 238. in affidavits, 462. see "Certainty." CONDITIONAL APPEARANCE, 207. CONDITIONAL DECREE (see "Decree"). CONDITIONS, on opening pro confesso, 200. on allowance of amendment, 411. on dismissal of bill, 580, 581. CONDUCT OF CAUSE, 578. CONFEDERATING PART OF BILL, origin of, 105. is superfiuous, 105. in United States courts, equity rule 21, p. 1067. form of, 98. CONFESSIONS, allegation of, in bill, 138. see "Admissions." INDEX. [BEEEBENCKS ABE TO PAGES.] 1209 CONFIDENCE, PROFESSIONAL (see "Bill of Discovery"; "Profes- sional Confidence"). CONFIRMATION, of master's report, see "Master's Report." of judicial sale, see "Sale." CONSENT DECREE, authority of counsel to consent to, 725.' against infants, 724, 728, 732-734. validity of, in Illinois, 733, 734. inquiry by court, whether for benefit of, 732, 733. reference to inquire whether beneficial, 724, 732, 733. fraud in procuring, 724, 726. relief from fraud or collusion in obtaining, 786. recital of consent in, 725, 726, 742. binds court of review, 725. in United States supreme court, 725. modification of, 456, 725. setting aside, 724. rehearing of, 724, 786. bill of review on, 724. appeal from, 724, 725, 802. in United States courts, 725. see "Decree"; "Infant." CONSERVATOR, suit by foreign, 31. see "Idiot"; "Lunatic"; "Committee." CONSOLIDATION OF CAUSES, office of, 475. jurisdiction of court to order, 474. discretion of court in ordering, 474, 475. in creditors' suit, 475. procedure to consolidate, 476. rule to show cause against consolidation, 476. objections to, 476. effect of, 475, 476. parties in consolidated causes, 475. pleadings in consolidated causes, 475. record in consolidated catises, 475. decree in consolidated causes, 475, 476. form of order for consolidation, 476. CONSTITUTIONAL PROVISIONS, corporations not persons under United States constitution, 30. 1210 INDEX. [EEFEEENCES ABE TO PAGES.] CONSTITUTIONAL PROVISIONS-Conf d. right to jury trial in contempt proceedings, 565, 566. right to jury trial in issues in chancery, 628, 629. CONSTRUCTION OF PLEADINGS, liberality of, 88. on demurrer, 89. of plea, 88. character of pleading not dependent on name of, 89. see "Certainty." CONSTRUCTIVE SERVICE, statutory provisions for, 169, 170. by copy of bill, 170, 172. in United States courts, 169. effect of, 170-172, 197. personal decree on, 171, 197. see "Extraordinary Service"; "Substituted Service"; "Decree"; "Jurisdiction"; "Process"; "Service"; "Nonresident"; "Ab- sent Persons." CONSULS, jurisdiction of United States supreme court in cases affecting, 11. not privileged from process, 178. see "Privilege from Process." CONTEMPT, jurisdiction to punish for, 547, 548. is inherent, 547. ' limited in United States court, 547. twofold purpose of prosecutions for, 548. classes of, 547, 548. civil, 547. criminal, 547, 554. direct, 548. indirect, 548. consequential, 548. constructive, 548. in face of court, 551. remedial, 547. enforcement of decree by, 757. See "Decree." enforcement of orders by, 454, 548, 549. See "Orders." where other remedy exists, 549. where writ of assistance proper, 549. what are contempts, 548. disobedience of order, 454, 455, 548. irregular order, 455, 549, 550. INDEX. 1211 [eefeeencbs aee to pages. J CONTEMPT— Cont'd. erroneous order, 455, 549, 550. interlocutory order, 751. void order, 455, 550. disobedience of decree, 548, 757. for possession of land. Bacon's ordinance, 1046. failure to pay alimony, 549, 567. refusal to execute deed, 549, 761, 762. violation of injunction, 534-536, 549. performance of, after notice of motion for attacbment, 534. disobedience of subpoena, 549. disobedience of summons under letters rogatory, 682. suing receiver witliout leave, 25, 26, 496, 549. interference with receiver, 496, 549. witness disobeying subpoena, 549, 692. tampering with witness, 550. deceiving court, 549. writing letters to court, 549. by attorneys, 549. purging of, 562. preliminaries to bring into, 550. order to bring into, 550. service of order, 452, 454, 550. on solicitor, 453. where party has knowledge of order, 453. in Illinois, 551. practice, 551. title of proceedings, 552. information against contemnor, 553. affidavit showing contempt, 551, 553. requisites of, 553. showing of injury to complainant, 554. petition for attachment, 555. right of contemnor to be heard in defense, 570. notice to contemnor, 555. initial process, 556. attachment in first instance, 551, 553, 556. notice of motion to stand committed, 556. motion to stand committed, 454. rule to show cause, 551, 553, 557, 558. order nisi, 556. writ of attachment, 558-560. admitting contemnor to bail, 559. appearance of contemnor, 560. failure to appear, 560. purging contempt, 560. 1212 INDEX. [BEFEBENCES ABE TO PASES.] CONTEMPT— Cont'd. Bacon's ordinances, 1057, 1058. matter of excuse, 560-562. advice ot counsel, 562. inability to perform, 563. denial of intention, 561, 562. answer of defendant, 350, 560. effect of, in equity, 560. effect' of, at law, 560. admission of contempt, 553. no replication, 560. interrogatories to contemner, 551, 552, 560, 565. trial, 565. right to jury trial, 565. reference to examine contemner, 565. judgment, 566. necessary provisions of, 566. recitals in, 566. must be specific, 566. specification of punishment in, 566. of commitment, 566, 567. requisites of, 567. punishment, 569. specification of, 566. Bacon's ordinance concerning, 1056, 1057. of corporate officer, 509. fine, 569. commitment to prison, 566, 567, 569. for contempt in face of court, 551. duration of imprisonment, 566, 567. imprisonment until further order, 566, 567. release from imprisonment, Bacon's ordinance, 1047. effect of being in contempt, 570. Bacon's ordinance, 1057. motion by person in, 437, 438, 540, 570. dismissal by complainant in, 579. motion to dismiss by defendant in, 582. motion to dissolve injunction by party in, 540. striking out defense of person in, 540, 570. appeal by person in, 571. review of proceedings, 571-573. writ of error, 571-573. appeal, 571-573. certiorari, 572, 573. habeas corpus, 566, 572, 573. effect of revivor on proceedings, 939. INDEX. 12\3, [BEFEBENCES ABE TO PAGES.] CONTEMPT— Cont'd. form of information for contempt, 554. of petition for attachment, 555. ,/ of order to show cause, 558. of writ of attachment, 559. of answer to rule to show cause, 563. of orders adjudging guilty, 567, 568. CONTINUANCE, of hearing, 695. by consent, 696. court not bound by consent, 696. grounds of, 696. application for, 696. affidavit for, 696. showing of diligence, 696. procuring continuance is a general appearance, 210. CONTRACT, remedy for breach of, at law, 5. in equity, 5. persons beneficially interested in, not made parties, 63. indemnity of parties to bill to enforce, 62. revivor of suit founded on, 926. of foreign corporations, where state law not complied with, 30, 31. see "Rescission"; "Specific Performance"; "Stipulations." CONTRIBUTION, multifariousness in bill for, 149. CONTROVERSY (see "Amount in Controversy"). CORONER, service of process by, 163. CORPORATION, capacity to sue, 15. to be sued, 15. not person under United States constitution, 30. privity with stockholders, 55-57. representation of stockholders, 51, 54, 55. stockholders' suit in behalf of, 55-57. request to directors to sue, 56. in United States courts, equity rule 94, p. 1089. when dispensed with, 57. request to receiver to sue, 57. parties in suit for stock subscription, 42, 43. stockholders as parties to bill against, 69. 1314 INDEX. [eefebences aee to faoes.] CORPORATION— Cont'd. officers as parties to bill against, 67-69. former officers as parties to bill against, 69. agents as parties to bill against, 67-69. no prayer for relief against, 68. verification of bill of, 117, 118. signature to bill of, 115. admissions in bill of, 655. bill against directors, 44. ' prayer for relief against officers and agents, 67-69. prayer for process against, 113. process against, 183. sequestration, 183. distringas, 113, 183. service of process on, 165. See "Foreign Corporation." on agent, 165. appearance of, 217. answer of, 349. not under oath, 67, 334, 349. under seal, 67, 349. of officers of, under oath, 67. evidence to overcome, 670. where sworn to by officer, 670, 671. to dissolve injunction, 349. exceptions to answer of, 358. discovery from, 861. from officer of, 67-69, 860, 861. of information obtained in official capacity, 69. effect of, against corporation, 68. injunction against, 536. production of books by officer of, 694. contempt by officer of, 569. affidavit by officer of, 458, 459. decree against, when res judicata against stockholders, 55. enforcement of, 757. receiver of, officer as, 483. creditor as, 483. stockholder as, 483. must sue in name of corporation, 25. bill of revivor on dissolution of, 917. authority of solicitor of, 158. suit by, in United States courts, 69. see "Foreign Corporation"; "Stockholders"; "Voluntary Asso elation." CORRECTION OF DECREES (see "Decree"). INDEX. 1215 [KEFEKENCES AEE TO PAGES.] COSTS, of action at law, 705. in administration suit, 775, 776. in administrative jurisdiction, 770. of administrator, 774-778. on amendment, 411. on appeal, 806, 809, 810. apportionment of, 772. in suits autre droit, 774. Bacon's ordinances concerning, 1053, 1054. on bill of revivor, 1003. of cause, 770. charges and expenses not strictly costs, 778. in suit to administer charity, 773. in suit on behalf of class, 773-778. in creditors' suit, 773-776. where estate insolvent, 773, 776. where surplus remains, 773, 776. court will not hear cause to decide mere question of, 772. decree awards, 778. ' where defendants jointly interested, 580. on demurrer ore tenus, sustained, 241. deprivation of, 775, 777. deposit for, on petition for rehearing, 792. on disclaimer, 375, 377, 772. discretion of court over, 770. on bill of discovery, 883-885. on voluntary dismissal, 580. failure to pay, 580, 581. division of, between parties, 772. errors in proceedings increasing, 771. of executor, 774-778. on failure on main issue, 771. on feigned issue, 648. of fiduciaries in ease of misconduct, 775, 777. follow result when, 770. on further directions, 770. guardian ad litem, liability for, 19. how awarded, 778. in Illinois, 771. incidental, 770. infant's liability for, 20. attaining majority pending suit, 20, in interpleader, 826, 829, 830. of legatee, 776. of unnecessary litigation, 771. in litigious jurisdiction, 770. 1316 INDEX. [EEFEEENCES ABE TO PAGES.] COSTS— Cont'd. main issue, failure on, 771. prevailing on, 771. neither party entitled to, 771. next friend, liability for, 20. out of fund, 773. principle of allowance, 774. in creditors' suit, 773. in interpleader, 830. in stockholders' suit, 773. where interests adverse, 773. solicitor's fees as, 773. between party and party, 778, 779. only party can obtain, 772. only party decreed to pay, 772. on perpetuation of testimony, 846, 847. of personal representative dismissing bill, 580. to prevailing party, 770. in protective jurisdiction, 770. where questions involved unsettled, 771. new and important, 771. of receiver, 774. on bill to redeem, 771. on rehearing, 796. on retaining bill with liberty to bring action, 716. revivor for, 919. security for, 227. security for, on bill of review, 987, 997. solicitor's fees as, 773. between solicitor and client, 778, 779. statutory provisions for, 77i,. of stockholders out of corporate fund, 773. on supplemental bill of discovery, 886. reservation of, to further directions, 705. taxation of, 778. between party and party, 778. between solicitor and client, 773, 778, 779. of charges and expenses, not strictly costs, 778, 779. tender relieving from, 772. of trustee, 774-778. in United States courts, 771. equity rules 62, 65, 84, pp. 1079, 1087. on bill, equity rules 25, 26, 28, 29, pp. 1068-1070. of separate answer, equity rule 62, p. 1079. COUNSEL, certificate of, in United States courts, 286. INDEX. 1217 [kefeeences are to pages.] COUNSEL— Cont'd. to demurrer, 255. to plea, 286. to answer unnecessary, 331. eciuity rule 31, p. 1070. certificate of, to petition for rehearing, 789. signature of, to bill, 115. in United States courts, equity rule 24, p. 1068. demurrer for want of, 116. striking from flies for want of, 116. signature to demurrer, 255. signature to plea, 284, 285. signature to answer, 332. signature to disclaimer, 377. signature to supplemental bill, 903. signature to petition for rehearing, 789. see "Petition"; "Notice of Motion"; "Solicitor"; and titles of the various hills. COUNTER AFFIDAVITS, on motion to open pro confesso, 202. on motion to dissolve injunction, 542. Bacon's ordinance concerning, 1056. COURT OF CHANCERY (see "Court of Equity"; "English Court of Chancery"). COURT OF CLAIMS, equity jurisdiction of, 11, 12. COURT OF PRIVATE LAND CLAIMS, equity jurisdiction of, 11. COURT OF REVIEW (see "Appellate Court"; "Appeals"; "House of Lords"). COURTS OP COMMON LAW, distinction from courts of equity, 3. illiberality of, in devising writs, 6. inadequacy of remedy in, 4, 5. limitations of inquiry in, 4. , rights recognized by, 3. wrongs redressed by, 3. " parties in, 4, 34. judgments of, 4. procedure in, distinguished from procedure in equity, 5. Equity— 77. 1218 INDEX. [EETEBENCES ABE TO PAGES.] COURTS OF EQUITY, classification of jurisdiction of, 5, 245. rights recognized by, 3. wrongs redressed by, 3. remedies in, 4, 5. procedure in, distinguished from procedure at law, 5. in colonies, 9. in United States, 10. see "English Court of Chancery." CREDITORS, joinder of, as parties, 73. intervention b}', 80. representation of, by receiver, 54. representation of, by administrator, after accounts closed, 52, 53. costs in suit in behalf of, 73, 74. see "Creditors' Bill." CREDITORS' BILL, consolidation of, 475. intervention in, 80. pendency of another suit, 293. parties in, 42. multifariousness in, 143. bill to set aside several fraudulent conveyances, 152. answer to, 321. conduct of cause, 293, 578. dismissal of, 293. decree on, as res judicata, 293. costs of, 73, 74, 773, 774. order barring person not appearing, 43. receiver in, 481, 487. subsequently acquired property reached by supplemental bill, 893. see "Creditors." CRIMINAL JURISDICTION (see "Jurisdiction"). CROSS BILL, is bill not original, 94. definition of, 949. office of, 949. jurisdiction of, 952. relation to original bill, 973. must be germane, 955. new matters in, 955. grows out of original bill, 955. not restricted to issues in, 956. effect of abatement of, 968. INDEX. 1219 [REFEBENCES ABE TO PAGES.] CKOSS BILL— Cont'd. whether part of original cause, 973. curing want of equity in, 956. relation to answer to original bill, consistency with, 956. contradicting, 956. considered with, 968. necessity of, 949-952. in suit for account, 951. to assert set-off, 951. in suit for specific performance, 951. in partition, 951. in foreclosure, 951. where matter available by answer, 950. unnecessary when, 951. purposes of, for relief, 949-951. for full relief, 949-953, 960. for affirmative relief, 949-953, 961. for decree between co-defendants, 727, 728, 953, 954. to assert matter subsequent to filing plea, 276. to assert matter subsequent to filing answer, 422. to assert matter subsequent to issue, 330, 949, 951, 952, 961, 966. for discovery, 949. of complainant's title, 967. in nature of plea puis darrein continuance, 330, 949, 951, 952, 961, 962, 964, 966. parties to, 956-958. complainants in, 956, 957. defendants in, 957, 958. by party to original bill, 957. by new party, 957. by purchaser pendente lite, 957. complainant to original bill must be party, 957. against complainant, 949. against co-defendant, 949. new parties defendant, 957, 958. decree between co-defendants without, 727, 728, 953, 954. defendant to cross bill, filing cross bill, 957. frame of bill, 960. statement of original proceedings, 960, 961. must be germane to original bill, 955. showing equity in, 954, 955. want of equity in, 577, 955. consistency with answer to original bill, 956. contradictory with answer to original bill, 956. 1220 INDEX. [eefeeences arf. to pages.] CROSS BILL— Cont'd. statement of title to equltatle relief, 954, 955, 961. new matters In, 955. filing, 958. In what court, 952. after original suit at issue, 959. at time of answer to original bill, 959, 960. must answer original bill first, 968. before answer to original bill, striking from files, 960. leave to file, 958, 959. in Illinois, 958, 959. amendment of, 426, 972. process on, 965, 966. substituted service on, 169. taking pro confesso, 185, 186, 972. as evidence in original cause, 656. court directing filing of, 960, 969. stay of original bill on, 968, 969. supplemental bill as defense to, 898. demurrer to, 966. for want of equity, 955, 966. where filed by direction of court, 967. where filed contrary to practice, 967. where filed before answer. 960. not germane, 966, 967. plea to, 967. to jurisdiction, 967. to person, 967. answer to, 350, 351, 968. by person not named in bill, 968. rule to, before decree, 973. duty to answer, 966. where bill in nature of bill of revivor filed, 1024. time to file, 351. as evidence, 656, 971, 972. striking from files, 968. staying original bill until, 169. evidence on, 686, 971. use of depositions in original cause, 971. order to use depositions in original cause, 972. evidence taken on original bill, 971. hearing on, 970. with original bill, 970. must be ready for, 970. order for hearing with original bill, 970. separately from original bill, 970. before original bill, 970. INDEX. 1221 [KEFERENCES AKE TO PAGES.] CROSS BILL— Cont'd. decree, 973. without rule to answer, 973. stay of original suit, 169, 959, 968. not of course, 968, 969. showing to obtain, 969. > when cross bill amended, 973. where want of diligence of cross complainant, 969. until answer to cross bill, 169. on directing to be filed, 968, 969. form of order, 969. dismissal of original bill, effect of, 576-578, 591, 974. where for affirmative relief, 974. where defense to original bill, 974. retaining cross bill, 975. retaining answer as cross bill, 953. answer as cross bill, 953. requisites of, 953, 962. retaining on dismissal of original bill, 953. equitable title in, 954, 955. when confined to equitable relief, 954, 955. statement of title to equitable relief, 961. want of equity in, 577, 955, 966. where for affirmative relief, 954, 955. where filed as defense, 954, 955. for affirmative relief, 949, 953-955, 961. requisites of, 961. must be complete in self, 961. showing equity in, 954, 955. as defense, 949, 951, 952. requisites of, 961, 962. showing equity, 954, 955. to assert matter subsequent to filing of plea, 276. to assert matter subsequent to filing answer, 422. to assert matter after issue, 330, 949, 951, 952, 961, 966. as evidence, 656. revivor of, 920, 940. in interpleader suit, 826. in United States courts, equity rule 72, p. 1083. answer to, equity rule 72, p. 1083. in Illinois, 958, 959. form of cross bill for relief, 962. of cross bill in nature of plea puis darrein continuance, 964. of order staying original suit, 969. of order for hearing with original bill, 970. see "Cross Bill of Discovery"; "Supplemental Bill of Dis- covery"; "Answer"; "Plea." 1222 INDEX. [befebences abb to pages.] CROSS BILL OF DISCOVERY, defendant may file, 885. in United States courts, equity rule 72, p. 1083. for production of document by co-defendant, 406. see "Bill of Discovery"; "Supplemental Bill of Discovery." CROSS-EXAMINATION, on depositions, 687. effect on admissibility, where prevented, 687. on examination de bene esse, 679. on bill de bene esse, 679. on bill to perpetuate testimony, 847. on bearing before master, 190. on cross interrogatories, 675, 687, 688. see "Witnesses." CROWN, suits against, 17. attorney general as defendant to represent, 17. D. DEAF AND DUMB PERSON, guardian ad litem for, 223. answer of, 348. DEATH, of witness before cross-examination, 687. of party in United States courts, equity rule 56, p. 1077. of party before decree, see "Decree." see "Abatement"; "Bill of Revivor"; "Bill in Nature of Bill of Revivor"; "Bill of Revivor and Supplement"; "Bill In Na- ture of Bill of. Revivor and Supplement." DE BENE ESSE, BILL OF (see "Bill De Bene Esse"). DE BENE ESSE, TAKING TESTIMONY, office of, 678. when permitted, 677, 678. incidental to every chancery suit, 677, 678. on bill to perpetuate testimony, 678. witnesses who may be examined, 677. application for, 678, 679. affidavit in support of, 678. affidavit must describe witnesses, 678. notice to defendant of, 678, 679. examination of witnesses, INDEX. 1223 [EBFEBENCES ABE TO PAGES.] DE BENE ESSE, TAKING TESTIMONY— Cont'd. before appearance, 678. before answer, 678. notice to defendant, of, 679. in United States courts, equity rule 70, p. 1083. laches in, 679. procedure on. 679. in chief, 679. cross-examination, 679. use of depositions taken, 677. where witness can be produced for regular examination, 679. diligence to produce witness for regular examination, 679. statutory substitutes for, 679, 680. see "Bill De Bene Esse." DECREE, definition of, 718. flexibility of, 4. oral decision not decree, 748. distinction from decretal order, 721. distinction from interlocutory order, 718. classes of, 718. in rem, 727. in personam, 727. final, 265, 718, 719. examples of, 719. determining controversy, 719. where no further question reserved, 718. requiring further orders, 722. referring cause, 719, 721. reserving liberty to apply, 723. dismissing bill, 591. failing to adjudicate costs, 720. fixing rights and liabilities, 719. settling rights of parties, 721. modification of, after term, 755. interlocutory, 718. where no benefit to party, 721. where further action necessary, 719. final decree is, until enrollment, 750. for feigned issue, 720. pro confesso, 718. See "Decree Pro Confesso." default, 718. hearing before, 726. whether judgment of court, 726, 727. Bacon's ordinance, 1055. consent, 718, 724. See "Consent Decree." 1224 INDEX. [refeeences are to pages.] DECREE— Cont'd. against absent parties, 40, 47, 58, 59, 171, 197. against parties out of jurisdiction, 40, 47, 58, 59, 171, 197. against nonresidents, 171, 197. on constructive service, 171, 197. against infants, 218-220, 728. binding effect of, on infant complainant, 728. binding effect of, on infant defendant, 728. without appointment of guardian ad litem, 218-220. day to show cause against, 729, 730. English practice, 729, 730. in Illinois, 730. when inheritance bound, 729, 730. where personalty involved, 729, 730. in foreclosure suit, 729, 730. reservation of, in decree, 729, 730. subpoena to show cause, 729, 730. showing cause against, 730. before coming of age, 731. on coming of age, 730. impeaching decree, 733. by original bill, 731, 732. by bill of review, 731, 732. for fraud or collusion, 731, 732. for laches of next friend, 728. nunc pro tunc, 750. when proper, 750. where delay caused by court, 750, 751. in case of death, 750. dependent upon circumstances, 751. operation of, 751. caption of, 737. form of recital in, 752. on verdict on feigned issue, 642, 647. on demurrer overruled, 266. on demurrer sustained, 265. on plea overruled, 316. on disclaimer, 377. on cross bill, 973. on supplemental bill, 914. for account, 719. in United States courts, equity rule 73, p. 1084. of foreclosure, 721, 722. deficiency in United States courts, equity rule 92, p. 1088. of sale, 720. in interpleader suit, 822, 827, 828. to enforce stock subscriptions, 55. See "Res Judicata.'' INDEX. 1225 [EEFKEENCES ABE TO PAGES.] DECREE— Cont'd. in consolidated causes, 475, 476. See "Consolidation of Causes." between co-defendants, 727, 728, 953, 954. personal, on constructive service, 171, 197. against nonresidents, 171, 197. binding effect of, 724. Bacon's ordinance, 1047. persons bound by, 737. persons submitting to be bound by, 736. effect of, on privies, Bacon's ordinance, 1047. parties coming in under, 736. benefit of, 736. parties vsrho may take advantage of, 736. parties coming in under, 736. parties, decree dispensing witb, 47, 58, 59. interests of all to be adjudicated, 35. consent to, curing nonjoinder, 77. objection for want of, after decree, 83. support of decree, must be supported by pleadings, 733, 734. must be supported by allegations in bill, 122, 734. must be supported by proof, 732, 733, 738, 739. facts to support, 738, 739. secundum allegata et probata, 122. preserving evidence to support, 739. See "Record." instrument in record sustaining, 741. sustaining by reference to pleadings, 741. outside of issue, 734. frame of decree, 737. certainty in, 741. specification of amounts, 741. title, 737. caption, 737. of nunc pro tunc decree, 737. recitals, of pleadings, 737, 738. of evidence, 739. of viva voce evidence, 741. of preliminary steps, 738. of depositions, 739. overcoming facts, 740. under early English practice, 737. under modern practice, 737, 738. in United States courts, 738. in nunc pro tunc decree, 752. 1226 INDEX. [ebfeeences aee to pages.] DECREE— Cont'd. impeachment of, 738. ordering part, 740. commencement of, 740. contains directions, 740. reservations in, 740, 741. declaratory part, 742. declaration of rights in, 742. in default decree, 742. signature of, by chancellor, 742. In United States courts, equity rule 86, p. 1087. pronouncement of, under English practice, 747, 748. registrar's minutes under English practice, 747, 748. registrar's minutes in United States, 748. decretal order preliminary to final decree, 748. unknown in United States, 748. drafting decree, 747. Bacon's ordinance, 1052. solicitor usually draws, 747. not duty of clerk to draw In Illinois, 747. record, when decree becomes, 749. power of court over, until recorded, 748, 749. enrollment under English practice, 748. advantage of, 750. decree interlocutory until, 750. of decree for account, 750. nunc pro tunc, 750. nunc pro tunc relates back, 751. relates back, 750. enrollment in United States, 748. review of, before. See "Bill of Review"; "Rehearing"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review"; "Appeal." entering decree, 747, 748. in Illinois, 742. filing, power of court over until, 748. correction of decree, 753, 754. clerical error, 753. Bacon's ordinance, 1045. clerical error after term, 753, 754. judicial errors, 753, 754. in United States courts, equity rule 85, p. 1087. by petition, 780. minute in record to support, 753, 756. amendment of, 456, 752-754. power of court to amend, 752. before filing or recording, 748, 749. INDEX. 1227 [befeeences aee to pages.] DECREE3— Cont'd. after term, 753, 755. application for, 755. on petition, 755. notice of, to other parties, 755, 756. manner of making, 756. by interlineation, 756. by distinct order, 756. by supplemental decree, 756. nunc pro tunc, 756. minute in record to support, 753, 756. Bacon's ordinance concerning, 1045. in United States courts, equity rule 85, p. 1087. modification of, (752. power to modify final decree expires with term, 753, 755. after term, 753, 755, on court's own motion, 752. application for, 752. on petition, 755. on motion, 752. on rehearing, 753. See "Rehearing." of time of enforcement, 755. of manner of enforcement, 755. vacation of, power of court, 752, 753. after term, 753. opening decree, 756, 757. not encouraged, 756. after term, 757. laches in application for, 756. by consent, 757. motion for modification of, 755. motion for amendment of, 754. motion for correction of, 780. motion for alteration of, 753. petition for modification of, 755. supplemental bill to add to or impeach, 887, 889. reservation of liberty to apply, 723, 724. applications under, 724. petition under, 724. motion under, 724. reservation of further directions, 719, 741, 766. proceedings after, 741. correction of decree on, 754. see "Further Directions"; "Hearing." equity reserved, 719. 1228 INDEX. [EEFEEBNCES ABE TO PAGES.] DECREE— Cont'd. performance of decree, Bacon's ordinance, 1046. See "Bill of Re- view"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review." enforcement of decree, 757. inberent power to issue processes for, 757. English practice, 757, 758. Bacon's ordinance, 1046. by execution, 758, 759. by writ of sequestration, 759. by writ of assistance, 760. by execution of document, 761. by master, 762. deed to land in foreign state, 762. modification of manner of, 755. modification of time of, 755. injunction to enforce, 513. receiver after, 484, 487. ne exeat to enforce, 503. by contempt proceedings, 548, 757. Bacon's ordinance, 1046. disobedience of, is contempt, 548, 757. See "Contempt." Bacon's ordinance, 1046. lien of decree, 764. in United States courts, 764. bill to carry into execution, 1017. bill to suspend operation of, 1014. motions to give effect to, 736. supplemental bill to add to or impeach, 887, 889. bill to impeach for fraud, 1006. review of decree, 748. by petition for rehearing, 753. See "Petition for Rehearing." by bill of review, see "Bill of Review." by bill in nature of bill of review, see "Bill in Nature of Bill of Review." by supplemental bill in nature of bill of review, see "Supple- mental Bill in Nature of Bill of Review." by appeal, 800. See "Appeal." appealable decrees, 718, 800. vacating decree for fraud, 1005, 1006 See "Bill to Impeach De- cree for Fraud." not to be made on pretense of equity. Bacon's ordinance, 1046. amendment of bill after, 427. decretal order after, 722. motion to set aside as appearance, 211. former decree, plea of, 300. See "Res Judicata"; "Plea." form of final decree, 743, 745. INDEX. 1229 [REFEKENCES ABE TO PAGES.] DECREE— Cont'd. dismissing bill on demurrer sustained, 266. dismissing bill at hearing, 715'. denying injunction and dismissing bill, 530. dissolving injunction and dismissing bill, 545. for perpetual injunction, 546. in suit for accounting, 744. after verdict on feigned issue, 647. in United States courts, 738, 1087. form of interlocutory decree for accounting, 743. form of recital in nunc pro tunc decree, 752. DECREE PRO CONFBSSO, court pronounces, 698. not of course, 192. effect of, 192, 196. against persons under disability, 198. against infants, 198. against nonresidents, 171, 197. on constructive service, 171, 197. on amended bill, 204. necessity of order pro confesso before, 193, 726. proof to sustain, 196. recital of service in, 194, 195. opening, 198. grounds for, 198, 199. in case of negligence, 199. discretionary witb court, 203. for surprise, 199, 200. statutory provisions for, 205. proceedings for, 200-202. affidavit to support application, 201, 202. counter affidavits, 202. affidavit of co-defendant, 202. showing of defense, 201, 202. offering to file answer, 201, 202. time to apply for, 199. imposing conditions on, 200. effect of, 203, 204. demurrer after, 203, 204. defense of bankruptcy after, 200. defense of statute of limitations after, 200. defense of usury after, 200. amendment of bill after, 205. setting aside, 194. hearing on, 193, 726. collateral attack of, 193. 1230 INDEX. [eefeeences aee to pages.] DECREE PRO CONFESSO— Cont'd, rehearing after, 194, 786. bin of review on, 193. appeal from, 193, 196, 197, 802. in United States courts, 199. equity rules 18, 19, pp. 1066, 1067. form of affidavit on application to open, 206. of order opening, 206. see "Decree"; "Order Pro Confesso"; "Pro Confesso"; and titles of the various bills. DECRETAL ORDER, definition of, 722. distinction from decree, 718. preliminary to decree, 748. on petition, 722. after decree reserving liberty to apply, 722. rehearing of, 782. DEDIMUS (see "Commission"; "Deposition"). DEED, execution of, under decree, 761. by master, 762. to lands in foreign states, 762. verification of bill for discovery of, 116, 117, 870. verification of bill for discovery and relief, where destroyed, 870. see "Documents"; "Decree"; "Master in Chancery." DEFAULT (see "Decree Pro Confesso"; "Hearing"; "Order Pro Con- fesso"; "Pro Confesso"; "Decree"). DEFENSE TO SUIT, classes of, 229. modes of, 229. dilatory, 229. peremptory, 229. permanent, 229. by demurrer, 229. See "Demurrer." by plea, 229, 270. See "Plea." by answer, 229, 317. See "Answer." by cross bill, 229. See "Cross Bill." by person in contempt, 570. See "Contempt." showing of, to open pro confesso, 201. See "Pro Confesso"; "Decree Pro Confesso"; "Order Pro Confesso." DEFENDANTS, attorney general as, 17. INDEX. 1331 [references are to pages.] , DEFENDANTS— Cont'd. intervening petitioner as, 79, 80. See "Intervention." party refusing to join as complainant, 74. complainant compelled to assume position of, 74. in different capacities, 153. joinder of, 230. privity between persons joined, 76. of same person in different capacities, 153. persons having common interest, 75. multifariousness in bill against, 151. persons guilty of combination and fraud, 76. persons committing separate injurious acts, 76. wliere common riglit claimed against, 152. where general right claimed against, 76. where distinct causes of action against, 141, 142. where separate claims against, to avoid multiplicity of suits, 146. owners of land derived from common source, 76. to avoid multiplicity of suits, 146. misjoinder of, 85. multifariousness from, 151-153. demurrer for, 235, 253. multifariousness in bill against several, 151-153. interest of, in question, 76. in subject-matter, 76, 126. in common, 75, 152. general, 76. joint, 76. common, with complainant, 130. identity of, 76. allegation of, in bill, 126. bill against, description of defendants, 103, 124. allegation of liability, 126. allegation of interest, 126. allegation of notice, 129, 130. prayer for process, only those named in, parties, 75. See "Prayer for Process"; "Bill." demurrer, for want of interest, 244, 250. no right to call on defendant, 244, 250. by one joint defendant, 235. plea, of title in defendant, 305. to character of defendant, 291. to person of defendant, 290. 1232 INDEX. [EBFEEENCES ABE TO PAGES.] DEFENDANTS— Cont'd, dismissal as to one, 576. where jointly interested, 580. documents in custody of, 403. see "Joinder of Parties"; "Misjoinder of Parties"; "Multifa- riousness"; "Parties"; "Co-Defendants"; "Common Inter- ests"; "Interest." DELAY, in prosecution of suit, 583. at request of defendant, 583. see "Laches"; "Dismissal for Want of Prosecution" ; "Limi- tations, Statute of." DEMAND, of performance preliminary to contempt proceedings, 551. of discovery prior to filing bill, 885. DEMURRER, office of, 229, 233. lies to objections on face of bill, 233, 234. classes of, general, 242, 254. special, 242, 254. when necessary, 242. speaking, 239. ore tenus, 239. frivolous, 269. grounds of, 243-253. as to parties, want of, 81, 82, 235, 242, 243, 253. must be special, 82, 243. must point out necessary parties, 82, 243. misjoinder of, 84, 85, 235, 253. failure to describe, 103. arbitrator a party, 250. bankrupt a party, 250. bankrupt suing, 248. lunatic suing, 247. married woman suing, 247. idiot suing, 247. infant suing, 247. fictitious person as complainant, 248. disability of complainant, 244, 247, 248. to character of complainant, 244, 248. failure to aver citizenship in United States courts, 103, 247. voluntary association suing, 248. INDEX. 1233 [BEI'EIBENCES ABE TO PAGES.] DEMURRER— Cont'd. witness a party, 250. to person of complainant, 243, 247-249. as to jurisdiction, 243-247. jurisdiction not in any court, 243, 244. political subject, 244. jurisdiction not in court of equity, 243, 245-247. jurisdiction in other court of equity, 243, 247. jurisdiction in another court, 243, 247. other defenses, want of title of complainant, 70, 244, 249. want of title to relief of one complainant, 70. want of interest of complainant, 70, 244, 249. want of interest of one complainant, 71, 249. want of interest of joint complainants, 71, 249. laches, 128, 244. statute of limitations, 128, 244, 247. statute of frauds, 244. no right to call on defendant, 244, 250. inconsistent allegations in bill, 139, 141. multifariousness, 141, 153, 235, 244, 252. who may file for, 235. not overruled by answer denying confederacy, 236. splitting causes, 154. suit prematurely brought, 234. want of certainty, 88, 242, 252. want of prayer for process. 111. repugnancy in bill, 139, 141. prayer defective, 242. for want of signature to bill, 116. for want of verification of bill, 119. pendency of another suit, 244. amount in controversy, 244, 249. adequate remedy at law, 246. want of equity, 245. in United States courts, equity rule 32, p. 1071. Bacon's ordinance, 1054. to bill good in part, 241. to bill charging fraud, 242. to bill exposing to penalty, 244, 251. to bill exposing to forfeiture, 244, 251. to bill with alternative prayers, 110, 141. to bill with double aspect, 141. to amended bill, 253, 260, 261. to amended bill after demurrer to original bill overruled, 261. to bill for discovery, 877. to bill for discovery and relief, 243, 856, 857. Equity— 78. 1234 INDEX. [EEFEBENOES ABE TO PAGES.] DEMURRER— Cont'd. to part of bill, 230, 236, 254, 257, 265. must point out part demurred to, 230, 236, 254. hearing on answer after sustained, 265. form of, 257. several demurrers to different parts of bill, 230, 236, 239, 254. to relief, 855, 856. where facts stated in bill by way of pretense, 234. who may file, 235. by several defendants, 242. frame of demurrer, 253-255. Joinder with other defenses, 230, 236, 254. must point out part demurred to, 230, 231, 236, 254. title of, 253. protestation in, 238, 253. signature of, 255. verification of, 255. certificate of counsel in United States courts, 255. equity rule 31, p. 1070. incorporated in plea, 275. incorporated in answer, 231, 317, 324. filing, 258. time of, 258. by co-defendant after answer, 237. after opening pro confesso, 203, 204. after cross bill, 238. after withdrawal of answer, 259, 352. admitting, 259. exceptions to answer pending demurrer admit, 259. proceedings on, in United States courts, equity rule 33, p. 1071. hearing, 262. Bacon's ordinance concerning, 1054. before plea or answer, 231, 232. setting down for, in United States courts, equity rule 38, p. 1072. argument, by part of defendants, before appearance of others, 262. right to open and close on, 711. form of notice of, 261. failure of defendant to appear at, 262. sustaining, 263. dismissal of bill on, 263-265. amending bill on, 237, 263, 264, 427. failure to ask leave to amend on, 264. election to stand by bill on, 264. to part of bill, 263. to whole bill, 263. in United States courts, equity rule 35, p. 1071. INDEX. 1235 [references ABE TO PAGES.] DEMURRER— Cont'd, overruling, 266. effect of, 267. in United States courts, equity rules 36, 37, p. 1071. order overruling, not final, 267. final decree overrules, 268. plea or answer overrules, 236. time to answer after, 258, 267. answer after demurrer overruled, 266, 356. setting up same objection, 267. plea after demurrer overruled, 267. dismissal of bill on sustaining, 263-265. is no bar, 265. is final decree, 265. is appealable, 265. taking bill pro confesso after demurrer overruled, 266. striking from files, 259, 268. cannot stand for answer, 267. as evidence, 656. second demurrer, 267. to petition, 445. to plea improper, 309. to answer improper, 354. admissions by, 237, 238. of facts well pleaded, 89, 238. of matters of law, 238. of allegations on information and belief, 238. of facts judicially noticed, 238. where inconsistency between bill and exhibit, 238. as to co-defendant, 238. amendment of, 425. abandonment of, 237. waiver of, 237. withdrawal of, 237, 260. amendment to bill after, 427. amendment of bill after demurrer sustained, 237. exceptions to answer after demurrer to part of bill overruled, 357. motion to dismiss as demurrer, 234. dismissal of bill for want of prosecution pending, 584. construction of bill on, 89. time to answer after, 258, 267. time to demur, plead, or answer, 259. condition not to demur alone, 259. in United States courts, equity rules 31-38, pp. 1070-1072. form of demurrer setting up statute of frauds, 257. for splitting causes, 257. for multifariousness, 256. 1236 INDEX. [eefeeences aee to pages.] DEMURRER— Cont'd. for infancy of complainant, 257. for want of equity, 255. for want of parties, 256. for want of privity, 256. for want of title of complainant, 257. for want of interest of complainant, 257. for want of interest in defendant, 257. 'to part of bill, 257. coupled with answer, 258. of notice of argument of demurrer, 261. of order permitting withdrawal of demurrer, 260. of order overruling demurrer, 268. of order sustaining demurrer and dismissing bill, 266. DEMURRER BY WITNESS, 675 (see "Evidence"). DENIAL (see "Answer"; "Plea"; "Information and Belief"; "Allega- tions"; "Admissions"). DEPOSIT, for costs on petition for rehearing, 792. in bank, interpleader to determine ownership of, 812. in bank, payment into court, 395. DEPOSITIONS, definition of, 683. distinction from affidavits, 457. origin of, 683. evidence formerly taken by, 683. See "Evidence." interrogatories, 690. interrogatories as to competency of witness, 690. interrogatories as to credit of witness, 690. interrogatories in depositions in United States courts, equity rules 67-71, pp. 1080-1083. form of last interrogatory, equity rule 71, p. 1083. cross interrogatories, 687. cross-examination, necessity of, 687. refusal of witness to submit to, 688. commission for, 688. application for leave for, 687. amendment of, 686. retaking, 683. suppressing, 688. grounds of, 689. scandal in, 689. affidavit to show irregularity, 689. INDEX. 1237 [ekfeeencbs aee to pages.] DEPOSITIONS— Cont'd, admissibility of, 683. effect of admission, 683. toy consent, 683. on trial of issue out of chancery, 683. on trial of feigned issue, 683. as evidence in another cause, 684, 685. taken in another court, 684. in cross causes, 686, 971. where bill dismissed after taking, 684, 685. as admissions, 685. proof of ancient depositions, 685. proof of depositions taken in another cause, 684, 685. taken in foreign countries, 685, 686. procedure on, 686. statutory provisions for, 683. Bacon's ordinance concerning, 1055, 1056. in United States courts, equity rules 67-69, pp. 1080-1083. see "Bill De Bene Esse"; "De Bene Esse, Taking Testi- mony"; "Evidence"; "Letters Rogatory"; "Perpetuation of Testimony"; "Witnesses"; "Affidavits"; "Evidence"; "Ref- erence." DEVISEE, bill of revivor by or against, 923. bill in nature of bill of revivor by or against, 917, 918, 1023-1025. supplemental bill in nature of bill of revivor by, 1025. hill in nature of bill of revivor and supplement by, 947. see "Parties." DILATORY PLEAS (see "Plea"). DILIGENCE, see "Laches"; "Dismissal for Want of Prosecution"; "Supplemental Bill"; "Supplemental Bill in Nature of Bill of Review." DIRECTOR, as receiver, 483. see "Corporations." DISABILITY, of complainant, demurrer for, 235, 244, 247, 248. plea for, 289-291. see "Capacity to Sue and be Sued." DISCLAIMER, office of, 229, 374. definition of, 374. 1238 INDEX. [KEFEEENCES ARE TO PAGES.] DISCLAIMER— Cont'd. distinction from answer, 374. cannot deprive complainant of answer, 374, 375. where complainant has an interest against defendant, 375. in case of interference with complainant's right, 375. where defendant has parted with interest, 374, 375. where defendant has no interest, 375. in case of fraud, 375. of one defendant, 375. of co-defendant, 375. where rights claimed against co-defendant, 375. frame of, 376. must show no liability, 375. must be full and explicit, 376. inconsistency with answer, 231, 376. verification of, 377. where answer under oath waived, 377. signature of defendant to, 377. signature of counsel to, 377. joinder with other defenses, 230. to part of bill, 230. exceptions to, 376. replication to, 376, 380. setting down for hearing, 377. withdrawal of, 375. where put in by mistake, 375. striking from files, 376. amendment of bill on, 377. dismissal of bill on, 376, 377. decree, 377. costs, 375-377, 772. reservation of rights against co-defendant, 375. to bill of interpleader, 822. at bar, 378. dispensing with parties disclaiming interest, 38, 48. form of general disclaimer, 378. of disclaimer and answer, 378. DISCOVERY (see "Bill of Discovery"; "Bill for Discovery and Relief" "Cross Bill of Discovery"; "Supplemental Bill of Discovery"). DISCRETION OF COURT, in granting leave to amend, 409, 420. in consolidating causes, 474, 475. in continuance of Injunction, 536. over costs, 770. in granting feigned issue, 627. INDEX. 1239 [kefekences ake to pages.] DISCRETION OF COURT— Cont'd. in determining multifariousness, 142. in granting preliminary injunction, 515. in opening pro confesso, 203. in proof of bill taken pro confesso, 189. in appointment of receiver, 482. in relieving from stipulations, 467, 468. in giving leave to file bill of review, 983. in granting reliearing, 791, 796, 797. no greater in equity tlian in law, 2. DISMISSAL OF BILL, no nonsuits in equity, 582. is final decree, 591. of bill filed witbout authority, 574. notice of motion for dismissal of, 574. of bill filed for class, 578. of bill of discovery and relief, 884. of bill of interpleader, 830. on court's own motion, 586. unauthorized suit, 575. for want of equity, 586. for want of jurisdiction, 586. for multifariousness, 586. on motion of defendant, 582. for want of jurisdiction, 586. for want of equity, 582, 585. for misjoinder, 582. of defendant in contempt, 582. on sustaining demurrer, 263, 264. on allowance of plea, 316. on disclaimer, 377. on refusal to make election, 390. where cause not ripe for hearing, 712. for nonjoinder of parties, 84, 587. for misjoinder of parties, 85, 587. for informality in position of parties on record, 85. for want of equity, 234. after pro confesso, 193. on dissolution of injunction, 537, 544, 545. at hearing, 712. where evidence contradictory, 712. for misjoinder, 712. for multifariousness, 712. for want of equity, 712. without prejudice, 713. presumed to be on merits, 714. 1240 INDEX. [BEPEBENCES ABE TO PAGES.] DISMISSAL. OP BILL— Cont'd, by complainant, right to, 575-578. discretion of court in permitting, 575-578. when permitted, 575-578. before decree, 575. after answer under oath, effect of, 662. after cross bill, 575-578. in Illinois, 577. after reference, 576. after decision announced, 576. after decree, 576. after master's report, 576. after cause set for hearing, 581. as to part of bill, 579. as to one defendant, 576. when complainant in contempt, 579. by one complainant, 575, 578, 579. of bill in behalf of class, 578. without prejudice, 581, 588, 590, 714. involuntary, 588. at hearing, 714. as a bar, 581, 588, 590. as res judicata, 581, 588, 590. whole record examined to determine, 590. Bacon's ordinance, 1047, 1048. presumed to be on merits, 590. voluntary dismissal, 581. cross bill, effect of dismissal of original hill on, 577, 974. of involuntary dismissal on, 591. retaining answer as cross bill, 953. retaining cross bill, 577, 578. answer, effect of involuntary dismissal on, 591. interlocutory orders, effect on, 578. reinstatement after voluntary dismissal, 582, 589. after involuntary dismissal, 589. agreements as to, 578. stipulations as to, 578. on contingency, 714. without prejudice to action at law, 702. with permission to sue again, 714. costs, on voluntary dismissal, 580. by poor person, 580. effect of failure to pay, 580. orders after, 591. in United States courts, equity rule 38, p. 1072. INDEX. 1241 [EEFEKENCES ABE TO PAGES.] DISMISSAL OF BILL— Cont'd. for want of parties, equity rule 52, p. 1075. form of order of voluntary dismissal, 581. of dismissal on sustaining demurrer, 266. of dismissal at hearing, .715. of decree dissolving injunction and dismissing bill, 545. DISMISSAL OF PETITION, 445, 446. DISMISSAL FOR WANT OF EQUITY, on motion of defendant, 234, 235, 582. on court's own motion, 586. before hearing, 234. at hearing, 712. dissolves injunction, 544. DISMISSAL FOR WANT OF JURISDICTION, on motion of defendant, 586. on court's own motion, 586. without prejudice, 588. as res judicata, 590. DISMISSAL FOR WANT OF PROSECUTION, where complainant not in fault, 5S3. where defendant not injured, 583. where delay is at defendant's request, 583. where either party at liberty to speed cause, 5S4. where service of process delayed, 583. pending plea, 584. pending abatement, 585. by bankruptcy, 585. by marriage, 585. pending demurrer, 583, 584. motion to dismiss for, 583-585. notice of motion, 584. speeding cause after notice of motion, 583, 584. filing replication is not speeding cause, 583. at hearing, 695. peremptory order erroneous, 584. efeect of, 584. without prejudice, 584, 585. not a bar, 584. See "Res Judicata." Bacon's ordinance concerning, 1048. for failure to file replication in United States courts, equity rule 66, p. 1080. DISPENSING WITH PARTIES, absent parties, 37-40, 58-60. 1242 INDEX. [REFERENCES ARE TO PAGES.] DISPENSING WITH PARTIES— Cont'd, parties out of jurisdiction, 37-40, 58-60. numerous parties, 37, 41-47. personal representative not in existence, 37. unknown persons, 37, 40. allegations as to, in bill, 130. in United States courts, 39, 42, 58-60. equity rules 47, 48, pp. 1074, 1075. DISTINCTION BETWEEN COMMON LAW AND EQUITY, in federal court, 10. maintained in some states, 10. abolished in some states and England, 9, 10. DISTRIBUTEE, as party to bill to recover assets, 61. DISTRICT COURT (see "United States District Court"). DISTRINGAS— WRIT OP, against corporation to enforce appearance, 113, 183, 184. to enforce decree, 757. DIVORCE, United States courts have no jurisdiction of, 12. writ of ne exeat in proceedings for, 501. alimony, failure to pay is contempt, 549. form of cross bill for, 962. form of order of commitment for failure to pay alimony, 567. DOCUMENTS, pleading in haec verba, 133-135. pleading ambiguous documents, 134. pleading documents of doubtful construction, 134. as exhibits to pleading, 132-135. See "Exhibits." bill of discovery for, 854. description of, in bill, 863. verification of bill, 116-118. answer to recital of, in bill, 321. variance in pleading, 139. proof of, on hearing, 741. on hearing on bill and answer, 697. interpretation of, in master's report, 620. deposit of, in court, 226. production of, 225-227. See "Production of Documents." inspection of, 225-227, 406, 407. See "Inspection of Documents." sealing up on order for inspection, 406. bill to impeach decree founded on fraudulent, 1007. form of reference to, in pleading, 134, 135. INDEX. 1243 [RETEBENCES ARE TO PAGES.] DOUBLE ASPECT, bill may be framed with, 139-141. prayer for relief in bill, 140. relief must be founded on same facts, 140. amending bill to make, 140. demurrer to bill with, 141. relief on, at hearing, 141. DOUBLE PLEAS (see "Plea"). DRUNKARD, COMMON, incapacity to sue, 15. DUPLICITY IN PLEA, 276 (see "Plea"). E. ELECTION OF PLEAS, 278. ELECTION, PUTTING COMPLAINANT TO, when proper, 389. bringing suit in equity not election, 390. where another suit depending, 293, 389. cases where required, 390, 391. complainant must be plaintiff at law, 391. in suit for discovery, 389. between bill for injunction and action for damages, 390. where recovery sought on different grounds, 390. mortgagee may pursue all remedies, 391. suits in different jurisdictions, 391. evasion of, by bill, 390. complainant entitled to answer before election, 391. motion for, before answer, 391. after answer, 293. motion for, before argument of plea, 391. motion for, before expiration of time to except, 391. who may move for, 390. one defendant, 390. motion for, 389. is special motion, 391. affidavits in support of, 391. proceedings on, 389. reference of motion, 389, 390. stays proceedings in both suits, 390. master's report on, 390. suits reported distinct, 390. order to elect, 389. 1244 INDEX. [BEFEBENCES ABE TO PAGES.] ELECTION, PUTTING COMPLAINANT TO— Cont'd. proceedings in equity after order to elect, 389. proceedings at law after order to elect, 389. time to elect, 390. refusal to elect, dismissal of bill, 390. Bacon's ordinance, 1048. form of order for election, 392. form of election, 392. see "Another Suit Pending." ENEMY (see "Alien"). ENFORCEMENT OP DECREE (see "Decree"; "Execution, Writ of"; "Assistance, Writ of"; "Sequestration, Writ of"; "Bill to Carry Decree into Execution"; "Contempt"; "Master in Chancery"; "Deeds"). ENGLAND, equity in, 1, 8. distinction between common law and equity, abolished in, 9. introduction of uses and trusts in, 8. see "English Court of Chancery." ENGLISH COURT OF CHANCERY, history of, 5-9. jurisdiction of, causes of rise, 6-8. common law, 5. equitable, 5. in United States courts, 12. practice of, in United States courts, 12. reorganization of, 8, 9. see "Lord Chancellor." ENROLLMENT OF DECREE, 748. office of, 781. advantages of, 749, 750. caveat to prevent, 799. in United States, 781. rehearing lies before, 781, 782. bill in nature of bill of review lies before, 1020. supplemental bill in nature of bill of review lies before, 784. bill of review lies after, 782. power of court over decree before, 748-750. Bacon's ordinances concerning, 1045, 1046. ENTITLING PAPERS (see "Title"). ENTRY, of decree, see "Decree." of order, see "Order." see "Enrollment." INDEX. 1245 [EEFEEBNCES ABE TO PAGES.] EQUITABLE INJURIES, 3. EQUITABLE INTEREST, owner of, as party, 62. EQUITABLE RIGHTS, 3. owner of, as party, 62. EQUITY, causes of rise of, 6. is branch, of jurisdiction of Buglisli court of chancery, 6. in general sense, answers definition of justice or natural law in Pandects, 1. definition of, 1. a division of jurisprudence, 1. distinction between courts of, and courts of common law, 3. in England, 1, 2. in colonies, 9, 10. in Roman law, 1. in United States, 1. uniform system of law, 2. not so wide as natural justice, 1. Mansfield's opinion of, 3. Selden's opinion of, 2. rights in, 3. wrongs in, 3. jurisdiction of, 5, 245. EQUITY RESERVED, hearing on, 719. decree on, 719. ERROR IN DECREE (see "Rehearing"; "Bill of Review"; "Bill in Na- ture of Bill of Review"; "Supplemental Bill in Nature of Bill of Re- view"; "Bill to Impeach Decree for Fraud"; "Bill to Carry Decree into Execution"; "Decree"; "Appeal"). EVIDENCE, affidavits as, 457, 605. allegations as necessary as, 650. allegations and evidence must support same cause of action, 650. additional evidence at hearing, 707. answer as, 657-659. against co-defendants, 663-665. of partner against co-partner, 664. of agent against principal, 664. in favor of co-defendant, 665. affirmative defense in, 660, 661. 1246 INDEX. [BEFEBENCES ABE TO PAGES.] EVIDENCE— Cont'd. matter of avoidance in, 661, 669. new matter in, 660, 661. only responsive allegations, 659. test of responsiveness, 659. must be positive, 657, 659. facts not in personal knowledge, 657, 658. must not be evasive, 659. separate, 664. matter of law, 658, 659. on belief, 657. to interrogatory, 109. not full, 671. failure to deny allegations of bill as, 341, 342, 671. where oath waived, 661-663. to cross bill, 656, 657. to cross bill as, 972. in another suit as, 684. to bill of discovery, 882, 883. to discovery called for by bill, 661. defendant cannot charge and discharge himself, 659-661. maxim "Falsus in uno, falsus in omnibus," applies, 669. effect of replication on, 109, 379, 380. on trial of issue, 657. reading at hearing, 671, 672. to overcome answer under oath, 657, 666-669. where not positive, 657, 670. matters not in knowledge of defendant, 657, 658, 670. of corporation sworn to by ofBcer, 670, 671. on belief, 658, 670. to specific interrogatory, 658. on information and belief, 669, 670. when bill dismissed, and new bill filed, 662. bill as, admissions in, 649, 653, 655, 656. unverified, 653-656. plea as, 656. demurrer as, 656. cross bill as, 656. cross bill pro confesso as, 972. depositions as, 684-690. in another cause, 605, 684. use of, in cross cause, 686. use of, when bill dismissed, 684. all evidence formerly taken by, 683. in consolidated causes, 475. INDEX. 1247 [eetebences aeb to pages.] EVIDENCE— Cont'd. in cross causes, 686, 971, 972. on cross bill, 686, 971. on bill of discovery, 661, 883. on feigned issue, 636. at hearing, 695, 706-711. in federal court, 677. oral, 706. in federal court, 677. under modern practice, 676. in. interpleader, 827. in master's office, 604-608. parol in case of mistake, 651. in specific performance, 651. to vary written instrument, 651. liberality in equity, 651. publication of, 674, 675. passing, 674, 675. additional evidence after, 675, 676, 708-711. Bacon's ordinance, 1056. preserving in record, 741, 742. by certificate of evidence, 739. by bill of exceptions, 739. by recital in decree, 738, 739. recital of viva voce in decree, 741, 742. necessity of, 739. on reliearing, 794-796. statement of, in petition, 788. reading, 795, 796, on re-reference, 621. oral, in federal court, 677. in modern practice, 676. at hearing, 706. recital of, in decree, 741, 742. order of putting in, 652. weight of, 652. burden of proof, 651. equally balanced, 652. rules of, same as at law, 650. stipulations concerning, 470, 471. to vary rules of, 469. contrary to public policy, 472. taking, method in absence of statute, 673. commission to take, 677, 682. See "Commission.' under English practice, 674, 675. 1248 INDEX. [BEFERENCES ABE TO PAGES.] EVIDENCE— Cont'd, object of, 673. in secret, 673, 675. orally, 676, 677. proceedings in another cause as, 684-686. evidence in another cause as, 605, 684-686. depositions in another cause as, 605, 684, 687. pleadings must support, 650. pleadings as, on reference, 604. pleading, 136. disnaissal when contradictory, 712. variance with pleadings, 650. rejected, consideration of, on appeal, 809. order to use depositions in cross cause, 686. Bacon's ordinances concerning, order of, 1050. reading decree, 1050. on supplemental bill, 912, 913. delay In taking on reference, 601. in United States courts, equity rules 67-70, pp. 1080-1083. see "Deposition"; "Proof"; "De Bene Esse"; "Taking Testi- mony"; "Bill De Bene Esse"; "Bill to Perpetuate Testi mony"; "Reference"; "Hearing"; "Rehearing"; "Bill of Re- view"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill." EXAMINATION OP WITNESSES (see "Deposition"; "Reference"; "Evidence"; "De Bene Esse, Taking Testimony"; "Bill to Perpetuate Testimony" ; "Witnesses" ) . EXAMINER IN UNITED STATES COURT, equity rule 78, p. 1085. see "Master in Chancery"; "Commissioner." EXCEPTIONS TO ANSWER, definition of, 355. office of, 354, 355. to what answers, evasive, 355, 357. not full, 355-358. insufficient, 355. where oath waived, 358. not under oath in Illinois and New Jersey, 358. to amended bill, 359. of attorney general, 358. of corporation, 358. INDEX. 1249 [EEFEKENOES AEE TO PAGES.] EXCEPTIONS TO ANSWER— Cont'd. to bill of discovery, 881. of idiot, 358. of infant, 358. joint and several, 363. several answers, 363. further answer, 371, 372. grounds of, 355. for failure to view exhibits, 356. for impertinence, 355, 359-361. for insufficiency, 355, 364. for insufficient answer to interrogatory, 355. for scandal, 355, 359. for insufficient verification, 356. in United States courts, equity rule 61, p. 1078. frame of, 361-363. title of, 361. must state part excepted to, 361. prayer of, 361-363. amendment of, 363. signature of, 361. time of filing, after plea argued, 357. before plea argued, 357. after plea overruled, 357. pending demurrer, 259, 260. after plea to part of bill overruled, 357. after demurrer overruled, 357. after demurrer to part of bill overruled, 357. procedure on, 365. reference of, 366. ■master's report on, 367. bearing on master's report on, 367. allowance of further answer after, 371. allowance of, in whole or in part, 363. argument, right to open and close, 712. pro confesso on allowance of, 186, 368. replication after, 361, 381. for scandal and impertinence, 359-361. disposed of before exceptions for insufficiency, 360, 361. where answer would be mutilated, 360. for impertinence, allowance in part, 360, 363. see "Scandal and Impertinence." for insufficiency after exceptions for impertinence, 364. further answer to, 371, 372. to plea standing for answer, 313, 356. Equity — 79. 1250 INDEX. [eEFEEBNCES ABE TO PAGES.] ' EXCEPTIONS TO ANSWER— Cont'd. failure to file, waives allegation not answered, 365. waiver of, 364-365. pro confesso to part of bill not answered waives, 365. submitting to, 365. amending bill after, 364. striking from files, 362. separate exceptions to same matter, 363. amending bill after, 364. motion to elect, irregular before time for, has expired, 391. in United States courts, equity rules 61-65, pp. 1078, 1079. for insufficiency, equity rule 61, p. 1078. bearing on, equity rule 63, p. 1079. allowance of, equity rule 64, p. 1079. form of exceptions for scandal and impertinence, 363. form of, for Insufficiency, 363. form of order of reference of, 368. form of master's report on, 369. form of exceptions to master's report on, 369, form of order for further answer on submission to, 370. I form of order for further answer on master's report, 369. see "Scandal and Impertinence"; "Exceptions to Bill"; "An- swer." EXCEPTIONS TO BILL, causes for, 224. time of, 225. practice on, 225. reference on, 225. in United States courts, equity rules 26, 27, p. 1069. form of, 225. see "Scandal and Impertinence"; "Exceptions to Answer." EXCEPTIONS TO DISCLAIMER, 376. EXCEPTIONS TO MASTER'S REPORT (see "Master's Report"). EXCOMMUNICATION, capacity to sue, 15. capacity to be sued, 15. plea of, 290. EXCUSE, for laches, 128, 129. for statute of limitations, 128, 129. for failure to join parties, 130. INDEX. 1251 [ebtebences aee to pages.] EXECUTION, WRIT OF, office of, 758. under English practice, 757. under modern practice, 758. enforcement of decree by, 757. enforcement of money decree by, 757. sale of property under, 758. against privileged person, 757. statutory provisions for, 758. in United States courts, equity rule 8, p. 1064. see "Sequestration, Writ of"; "Assistance, Writ of"; "Decree"; "Bill to Carry Decree into Execution." EXECUTOR, as representative of creditors, 52. as representative of legatees and creditors, 53. dispensed witb as party when none, 37, 40. as representative of legatee, 52, 53. excusing failure to join as party, 130. joinder with heir, 34. joinder with a residuary legatee, 36. bill by legatee against, 101. prayer for process against, 112. bill by, personally, and as representative, 150. supplemental bill by, 895, 897. after obtaining letters, 414, 892, 893. petition for rehearing by, 797. bill in nature of bill of review by, 1020, 1021. bill of revivor by, 916-921, 923-927. bill of review by, 984, 985. answer of stale demp-'d by, 321. allegation of representative capacity, 124. decree against, binds legatee and creditor, 52, 53. costs, 774-778. deprivation of, 777. on dismissal of bill, 580. receiver of assets in hands of, 482. payment of money into court by, 394, 396. production of documents by, before answer, 227. abatement by death of one, 918. obtaining letters after filing bill, 32, 33, 414, 892, 893. amendment of bill on, 414. supplemental bill on, 414, 892, 893. prayer of bill of revivor against, 928, 929. see "Foreign Executor"; "Administrator"; "Personal Repre- sentative"; "Representation." 1252 INDEX. [EEFEEENCES ABE TO PAGES.] EXEMPLIFICATION, Bacon's ordinance, 1060, 1061. EXEMPTION FROM PROCESS, see "Privilege from Process." EXHIBITS, pleading, 132-135. alleging construction of, 134. setting out in haec verba, 132-135. inconsistency witli allegations, 134, 135. admission by demurrer where inconsistent with allegation, 238. are part of record, 739, 740. exceptions for failure to view, 356. proof of, at hearing, 706. form of reference to, in pleading, 134, 135. see "Documents"; "Deeds." EX PARTE (see "Motion"; "Orders"; "Notice"; "Injunctions"; "Re- ceiver"). EXTRAORDINARY SERVICE, on agent, 167, 168. on attorney, 168, 169. hanging process on door, 167. when ordered, 166-168. on cross bill, 169. on bill of revivor, 169. on bill of revivor and supplement, 169. on bill of interpleader, 169. in injunction suit, 167. record should show cause for, 170. jurisdiction to order, 168. form of order for, 170. see "Process"; "Service"; "Constructive Service"; "Substitut- ed Service"; "Absent Parties"; "Nonresident." PACTS, bill must state sufficient, 121, 122. admission of, by demurrer, 238, 254. decree must be supported by, 738-740. no issue unless charged in bill, 122. allegation of, intermingled with law, 137. allegation of, by way of recital, 319. in complainant's knowledge, 121. INDEX. 1253 [EEPBRENCES ABE TO PAGES.] FACTS— Cont'd. in defendant's knowledge, 121. stipulation of, 470. see "Evidence"; "Decree"; "Proofs." FAVOR OF COURT, answer by, 351. to persons in contempt, 570, 571. FEDERAL COURT (see "United States Courts"). FEIGNED ISSUE, definition of, 626. distinction from directing action, 627. office of. 626. when proper, 626, 629, 630, 637. to try sanity, 630. to try partnership, 630. in specific performance, 630. to try forgery, 629. In case of conflict of evidence, 626, 629, 637. in doubtful cases, 626, 629, 637. in interpleader, 829. not to try question of law, 630. on court's own motion, 630. application for, 630. time of, 630. after reference, 630. after master's report, 630. discretion of court in granting, 627. rehearing of order granting, 646. revoking, 635. pleadings on, 626, 631, 633. fiction of wager, 631. control of chancellor over, 627, 631, 636, 637, 641. as to issue, 631. as to parties, 631, 636. as to evidence, 637. as to trial, 636, 637. as to parties testifying, 636, 637. issue, framing, 631. fiction of wager, 631. modern form of, 631. chancellor directs, 631. reference to settle, 631. objections to form of, 631. 1254 INDEX. [eefebencbs aee to pages.] FEIGNED ISSUE— Cont'd. questions to jury, 631, 634, 635, 637. parties on, ctiancellor directs, 631, 636, 637. trial of, proceedings on, 635. practice on, 636. place of, 635. affirmative of issue on, 636, 637. control of chancellor over, 636, 637. evidence on, 636-638. bill as evidence, 637. answer as evidence, 637, 638. depositions, 638. witnesses, 626. parties as witnesses, 636, 637. questions to jury, 631-634, 637. instructions to jury, 638. nonsuit, 636. verdict, resembles common-law verdict, 640. jury must pass on every issue separately, 640. effect of, 639, 641, 642, 647. recording, 642. certifying, 640. where chancellor and trial judge the same, 640. adoption of, 641, 642. decree not based on alone, 639. disregarding, 641, 642. effect of, on new trial, 646. disagreement of jury, 646. postea, 640, 641. new trial, grounds of, 644-646. admission of evidence, 644. exclusion of evidence, 644. fraud, 644. surprise, 644. instructions erroneous, 645. misconduct of jury, 645. new evidence, 644, 645. verdict contrary to evidence, 643-645. motion for, 643. time of, 643. before hearing on further directions, 643. court does not go into equities on, 643. bill of exceptions on, 639. granting, 643-646. form of issue not changed on motion for, 646. INDEX. 1255 [bEFEEENOES ABE TO PAGES.] FEIGNED ISSUE— Cont'd. granting until chancellor satisfied, 643, 644. granting where issue required by statute, 646. successive new trials, where land involved, 645, 646. effect of first verdict on new trial, 646. hearing on further directions after, 647. jury trial on, 628. bill of exceptions on, 627, 639. use of, on motion for new trial, 639. trial judge certifying exceptions, 640, 641. statement of trial judge as to trial, 640, 641. discretion of court in adopting, ,641, 642. decree on verdict, 642, 647. costs, 648. preserving evidence in record, 642. statutory substitutes for, 626. form of feigned issue, 633. of order for, 632. of order settling issue, 632. of questions to jury, 634, 635, 637. of verdict on, 637, 640. of decree on, 647. see "Action at Law." FEME COVERT (see "Husband and Wife"; "Married Woman"). FEME SOLE, married woman suing as in equity, 20-22. right of married woman to answer like, 21. see "Husband and Wife"; "Married Woman." FICTITIOUS PERSON, bill in name of, 248. FILING, general consideration of, 159. of pleadings, see titles of various pleadings. of master's report, see "Master's Report." of pleadings in United States courts, equity rules 1-6, pp. 1062-1063. FINAL DECREE (see "Decree"). FINE AND NONCLAIM (see "Plea"). FISHERY, parties to bill to quiet title to, 46. directing action at law to establish title to, 840. 1256 INDEX. [beteeences aee to pages. J FORECLOSURE, BILL FOR, multifariousness in, 142, 143, 148, 150. amendment of, 417. abatement of, 917. revivor of, 927. final decree in, 721. death of complainant after decree, 917. writ of assistance to let in purchaser, 550. appointment of receiver, 481. cross bill, 951. decree in United States courts, equity rule 92, pp. 1088, 1089. form of order appointing receiver, 492. FOREIGN ADMINISTRATOR (see "Foreign Executor"). FOREIGN CORPORATION, right to sue, 29, 30. liability to be sued, 29, 30. service of process on, 165. on agent, 165. appointment of agent to accept, 30. restrictions by state, 30. contracts of, where state law not complied with, 30. in federal courts, 31. FOREIGN COURT (see "Another Suit Pending"; "Bill of Discovery" "Election, Putting Complainant to"; "Letters Rogatory"). FOREIGN EXECUTOR, suit by and against, 31, 32. compliance with local statute after filing bill, 32, 33, 414. amending bill after obtaining letters, 32, 33, 414. supplemental bill after obtaining letters, 892. FOREIGN GUARDIAN, suit by and against, 31. allegations of bill by, 31. FOREIGN RECEIVER, suit by and against, 28, 29. petition for leave to sue, 29. title to property in foreign state, 29. obtaining possession of property in foreign state, see "Receivers." FOREIGN SOVEREIGN (see "Sovereign"). FOREIGNER, answer of, 348. oath of, to answer, 334. ne exeat against, 501. INDEX. 1257 [befekences ake to pages, j FOREIGNER— Cont'd. form of oath to answer of, 335. see "Alien." FORFEITURE, bill for discovery exposing to, 861, 864. demurrer to, 244, 250. answer to, 321, 876. wliere admissions in, inadmissible in criminal prosecution, 321. objection to, personal, 251. waiver of objection to, 251. bill of discovery and relief, exposing to, 857, 858. interrogatory exposing to, 251. waiver of, in bill to perpetuate testimony, 840, 842. equity will not enforce, 251. exceptions, 251. bill to relieve from forfeiture of rent, 127. does not oust jurisdiction, 252. FORMA PAUPERIS, leave to sue in, 228. petition for leave to sue in, 444. dismissal of bill by person suing in, 580. Bacon's ordinance concerning, persons suing or defending in, 1060. FORMAL PARTIES, 57 (see "Parties"). FORMER ADJUDICATION (see "Decrees"; "Plea"; "Res Judicata"). FORMS, of acceptance of service of notice, 441. of acknowledgment of service of subpoena, 173, note 51. of address of bill, 97, 102. of admission of service of notice, 441. of affidavit, 461, 464, 465. of affidavit of service of notice, 440, 441. of affidavit to injunction bill, 522. of affidavit to open pro confesso, 206. of affidavit in contempt proceedings, 554, note 32. of affidavit of noncollusion to bill of interpleader, 822. of allegations in bills held insufficient, 125, 132. of allegation in demurrer held insufficient, 254. of amendment to bill, 408. of attachment in contempt proceedings, 554, note 32. of appearance, general, 216, 325, note 56. of appearance, special, 216, note 57. See form of "Withdrawal of Appearance." 1258 INDEX. ' [EEFEEENCES ABE TO PAGES.] FORMS— Cont'd. of answer, 330, 336. of answer and disclaimer, 378. of answer of infant, 347. of answer of statute of frauds, 338. of answer of statute of limitations, 338. of answer of want of equity, 338. of answer to interrogatories in contempt proceedings, 554, note 32. of answer to rule to show cause for contempt, 563, 682. See, also, 683, note 144. of averments in answer, 337, 338. of bill, original, 97. of bill for injunction to restrain waste, 522. of bill for injunction to restrain trespass, 525. of bill for ne exeat, 505. See, also, note 32. of bill of review for errors of law, 991. ' on discovery of new matter, 992. of bill In nature of bill of review, 1020, note 1. of bill to impeacli decree for fraud, 1009. of bill to suspend or avoid execution of decree, 1013. of bill to carry decree into execution, 1018. of bill of revivor, 930. prayers of, 929. of bill in nature of bill of revivor, 1026. of bill of revivor and supplement, 943. of bill in nature of supplemental bill, 1034. of bill of certiorari, 836. of bill for discovery, 872. of bill of interpleader, 819. of bill for receiver and accounting, 484. of bill to perpetuate testimony, 843. See, also, note 34. of bill to take testimony de bene esse, 851. See, also, 852, note 13. of bond of receiver, 494. of bond of defendant on ne exeat, 508, note 32. of bond on appeal, 804, note 25. of certificate of trial court on feigned issue, 641, note 56. of certificate of master recommending issue of injunction, 527. of certificate of counsel to petition for rehearing, 791. of charging part of bill, 99. of clause of jurisdiction in bill, 99. of confederating part of bill, 98. of cross bill for relief, 962. of cross bill in nature of plea puis darrein continuance, 964. of decree nunc pro tunc, 752. of decree denying injunction and dismissing bill, 530. of decree dissolving injunction and dismissing bill, 545. INDEX. 1259 [BEFEEENCES ABE TO PAOES.] FORMS— Cont'd. of decree on supplemental bill, 914. of decree for perpetual injunction, 546. of decree after verdict on feigned issue, 647, note 89. of interlocutory decree in suit for accounting, 743. of final decree in suit for accounting, 744. of decree construing will, 745. of decree in United States courts, 738. of decree discharging receiver, 499. of demurrer for want of parties, 256. of demurrer for want of equity, 255. of demurrer for want of title in complainant, 257. of demurrer for want of interest in complainant, 257. of demurrer for want of interest in defendant, 257. of demurrer for want of privity, 256. of demurrer for multifariousness, 256. of demurrer for splitting causes, 257. of demurrer setting up statute of frauds, 257. of demurrer for complainant's infancy, 257. of demurrer to part of bill, 257. of demurrer coupled with answer, 231, 258. of demurrer for several causes, 256. of disclaimer, general, 378. of disclaimer and answer, 378. of election between suits at law and in equity, 392. of exceptions to answer to amended bill, 359. of exceptions to answer for insufficiency, 363. for scandal and impertinence, 363. of exceptions to bill, 225. of exceptions to master's report, 619. See, also, note 132. on exceptions, 369. of feigned issue, 633. of final decree, 745. of further answer, 372. of information against contemner, 554. of interlocutory decree for accounting, 743. of interlocutory decree in interpleader, 831. of interrogating part of bill, 99. of interrogatories in contempt proceedings, 554, note 32. of interrogatories on issue out of chancery, 634, 635, 637. of introduction to bill, 97, 103. of jurats to affidavit, 464. of jurat to bill, 119. of jurat to answer of illiterate person, 335. of jurat to answer of foreigner, 335. See, also, 336, note 91. of letters rogatory, 682. 1260 INDEX. [eefbeences aee to pages.] FORMS— Cont'd. of master's report of conclusions, 611. See, also, 612, note 98. of master's report of evidence, 611. of master's report on exceptions, 369. of master's certificate recommending injunction, 527. of motion for injunction, 528. of motion for receiver, 488. of motion to take answer from files, 352. of notice of motion, 440. of notice of motion for receiver, 489. of notice of motion to dissolve injunction, 541. of notice of argument of demurrer, 261. of notice of draft of master's report, 609. of oaths of interpreters to answers of foreigners, 336, note 91. of objections to master's report, 614. of order to show cause in contempt proceedings, 558. See, also, 682, note 144. of order adjudging guilty of contempt for nonpayment of alimony, 567. See, also, 569, note 86. of order adjudging guilty of contempt in presence of court, 56S. See, also, 569, note 86. of order committing for contempt on disohedience of summons, 682. See, also, 683, note 144. of order allowing plea, 312. of order for answering on appeal, 804, note 25. of order appointing guardian ad litem, 222. of order for writ of assistance, 761, note 153. , of order appointing interpreter, 335. of order adopting rules of practice, 385, note 7. of order appointing receiver in foreclosure suit, 492. in partnership suit, 490. of order appointing commissioner on letters rogatory, 682, note 144. of order for cause to stand over for new parties, 701. of order for cause to stand over for proofs, 702. of order changing receivers, 498. of order discharging receivers, 499. of order confirming master's report, 625. of order dismissing bill at hearing, 715. of order for consolidation of causes, 476. of order expunging scandal and impertinence, on master's report, 370. on submission to exceptions, 371. of order for feigned issue, 632. of order of reference in general, 596. See, also, 598, note 26. of order of reference on default, 597. of order of reference on bill of interpleader, 831. INDEX. 1261 [kefekbnces are to pages.] FORMS— Cont'd. of order of reference as to alimony, 597. of order of reference of plea, 315. of order of reference to state account, 597. of order of reference of exceptions, 368. of order settling issues, 632. of order of voluntary dismissal, 581. of order for further answer, 369. of order for further answer on submission to exceptions, 370. of order for injunction in suit for accounting and injunction, 529. of order for temporary injunction, 529, note 44. of order for injunction on bill of interpleader, 825. of order for writ of ne exeat, 507. See, also, 508, note 32. of order discharging writ of ne exeat, 508, note 32. of order for payment of money into court, 398. of order for production of documents by complainant, 406. of order for production of documents by defendant, 404. of order for plea to stand for answer, 314. of order for substituted service, 170. of orders granting leave to amend, 432, 433. of order granting leave to amend bill, 432. of order granting leave to amend injunction bill, 520. of order granting leave to amend answer, 433. of order allowing filing of supplemental answer, 423, note 86. of order pro confesso on personal service, 195. of order pro confesso on withdrawal of answer, 196. of order pro confesso on service by publication, 195. of order pro confesso after appearance, 196. of order pro confesso on creditors' bill, 196, note 57. of order retaining bill with liberty to bring action at law, 716. of order reserving liberty to apply, 723, note 12. of order giving infant day to show cause, 729, 730. of order that original and cross bills be heard together, 970. of order to stay proceedings in original suit on filing cross bill, 969. of order to stay proceedings on petition for rehearing, 793. of order that complainant elect, 392. of order sustaining demurrer, 265. of order withdrawing demurrer, 260. of order overruling demurrer, 268. of order overruling plea, 315. of order to take answer without oath or signature, 335. of order opening pro confesso. 206. of order to abide event of another suit, 477. See, also, 478, note 5. of order reserving further directions, 766, 769. of order to file bill of review, 996. of order by appellate court granting leave to file bill of review, 997. 1262 INDEX. [references ake to pages.] FORMS— Cont'd. of order to revive, 936. of order on complainant's neglecting to obtain order to revive, 937. of order to revive on answer submitting to revivor, 937. of order to plead or demur to bill of revivor, 936. of order granting leave to file supplemental bill, 908. of order on supplemental bill, 914. of oath of illiterate person to answer, 335. of oatli to bill, 119. of petition for guardian ad litem, 221. of petition for leave to amend, 428. of petition for leave to amend bill by adding defendants, 429. of petition for attachment for disobedience of injunction, 555. of petition for production and inspection of papers, 404. of petition for rehearing, 790, 791. of petition for leave to file supplemental bill, 908. of plea, 286. of plea on ground of defective service, 177, note 66. of plea to part of bill and answer to residue, 231, 287. of plea supported by answer, 287. of pleading documents, 134, 135. of pleading exhibits, 134, 135. of prayer for ne exeat, 114. of prayers on bill of revivor, 929, note 73. of prayer for injunction, 114. of prayer for process in bill, 101. of prayer for relief in bill, 100. of prayer for summons in Virginia, 114. of prayer for subpoena, 114. of premises of bill, 98. of receiver's bond, 494. of replication, 383. of return on writ of injunction, 532. of return of subpoena, 173. of return of ne exeat, 508. of rule to show cause why attachment should not issue, 558. of rules of court, see "Bacon's Ordinances"; "United States Equity Rules." of stating part of bill, 98. of stipulation, 471, note 33. of subpoena to appear, 162, 163. of alias subpoena to appear, 162, 163. of subpoena duces tecum, 693. of subpoena ad teptificandum, 692. English form, 606, note 72. on letters rogatory, 682, note 144. INDEX. 1263 [BEFERENCKS ABE TO PAGES.] FORMS— Cont'd. of supplemental bill, 904. of supplemental bill praying injunction, 903. of supplemental bill in nature of bill of review, 1040. of verdict on issue to jury, 635, 637, 640. of veriflcation to bill, 118. of verification to plea, 287. of verfication of injunction bill, 522. of verification to answer, 335. See forms of "Jurats." of withdrawal of appearance, 216, note 55. of writ of attachment, 554, note 32, 559. of writ of assistance, 760, 761, note 149. of writ of injunction, 531. of writ of ne exeat, 508. FRAUD, of agent, 66. of attorneys, 66. of arbitrators, 66. of solicitors, 66. of stewards, 66. parties in cases of, 50, 66. parties in bill for fraudulent representation, 72, 73. bill for relief from, 131, 132. allegations of, 122, 131, 132. allegation of injury, 126. bill by depositors to recover deposit from bank, 73. allegations of, in application for ne exeat, 503. discovery in case of, 860. disclaimer in case of, 375. payment into court in case of, 394. injunction on ground of, 520. plea to bill charging, 279, 280, 303, 304. demurrer to bill charging, 242. answer to bill charging, 322. in obtaining release, 302. in obtaining injunction, 543. in obtaining decree, 1005, 1006. in judicial proceedings, 1005, 1006. receiver of property obtained by, 480. doctrine of representation, impracticable in cases of, 50. avoiding laches, 128. see "Bill to Impeach Decree for Fraud." FRAUDS, STATUTE OF, pleading, 297-299, 327, 328. bill need not allege compliance with, 298. 1264 INDEX. [befeeences are to pages.] FRAUDS, STATUTE OF— Cont'd. demurrer setting up, 297. wlien proper, 298. plea of, 297. answer in support, 299. to discovery, 298. answer asserting, 297, 298, 327, 328. denial of contract, effect of, 328. in support of plea, 299. admitting contract, and insisting on statute, in plea, 298. in answer, 327. form of demurrer setting up, 257. form of answer setting up, 338. FRAUDULENT CONVEYANCES, bankrupt as party to bill to set aside, 67. bill to set aside several, not multifarious, 152. see "Creditors"; "Creditors' Bill." FUND IN COURT, petition for, 815. on further directions, 768. original bill to obtain, 397. custodian of, as party, 60. costs out of, see "Costs." interpleader in case of, 815. withdrawal of, 397. see "Payment of Money into Court." FURTHER ANSWER (see "Answer"; "Exceptions to Answer"). FURTHER DIRECTIONS, reservation of, in order, 766. reservation of, in decretal order, 766. reservation of, in decree, 741, 766. not given on motion, 766. after action at law, 704. after trial of feigned issue, 647. after master's report, 766. questions decided on, 768, 769. question of costs reserved to, 705. petition to present new matters on, 767. petition to obtain fund in court on, 768. petition of purchaser on, 768. setting down for hearing on, 766. hearing on, 766. INDEX. 1265 [BEFEKEKCES ABE TO PAGES.] FURTHER DIRECTIONS— Cont'd. default at, 767. procedure on, 767. hearing exceptions to master's report on, 767. petition to present new matters on, 767. proofs, 767. decree cannot be varied on, 769. adding to, 754, 755, 766. amended, 754. recommitting master's report for review on, 769. order on, 769. declaration of rights on, 766. decree on, 719. form of reservation of, in order, 766. forms of clause of reservation for, 769. see "Decree"; "Hearing"; "Equity Reserved." G. GENERAL APPEARANCE (see "Appearance"). GENERAL DEMURRER (see "Demurrer"). GENERAL INTERESTS (see "Common Interests"; "Interest"). GENERAL RELIEF, prayer for, effect of absence of, 109-111. relief grantable under, 110, 111. i special relief under, 735. injunction under. 111. ne exeat under, 111. see "Bill"; "Prayer for Relief"; "Relief"; "Special Relief." GOVERNMENT, suits against, 17, 18. GRATIS APPEARANCE, 208 (see "Appearance"). GUARDIAN, appointment of, 22, 23. of idiot, suit by, 22. defense by, 23. of infants, right to sue for, 18. right to defend for, 19. of lunatic, suit by, 22. defense by, 23. bill against guardian and sureties by ward, 74. see "Committee"; "Guardian Ad Litem"; "Idiot"; "Infant"; "Lunatic"; "Next Friend"; "Weak-Minded Person"; "Foreign Guardian." Equity— 80. 1266 INDEX. [BEFEEENCES ABE TO PAGES.] GUARDIAN AD LITEM, of infants, 19, 218-222, 346, 347. See "Infaat." of idiot, 24, 25, 222, 223. of lunatic, 24, 25, 222, 223. of deaf and dumb person, 223. of married woman, 217. where defendant of full age, 732. decree against infant without, 218-220. application for appointment of, 219. service of process before, 218, 219. by whom, 219. by complainant, 219. notice of, 219, 220. appointment of, 19, 218-222. without service of process, 218, 219. selection of, 219, 220. order of appointment, 220, 221. in United States courts, equity rule 87, pp. 1087, 1088. consent to act, 220. consent of infant, 220. removal of, 18, 218. duties of, 19, 218, 222, 347. defense by, 19, 218-222, 346, 347. discretion of, in defending, 220. answer by, 19, 220, 347. liabilities of, 19. for costs, 19. employment of solicitor by, 220. form of petition for, 221. form of order appointing, 222. see "Next Friend"; "Committee"; "Weak-Minded Person." H. HABEAS CORPUS, to review contempt proceedings, 566, 572, 573. HEARING, on demurrer, 711. on plea, 316. on petition, 446. on petition for rehearing, 792. on bill of discovery, 883, 884. of exceptions to master's report, 367, 623. on exceptions to answer, 367. INDEX. 1267 [KEFEKENCES ABE TO PAGES.] HEARING— Cont'd. in United States courts, equity rule 63, p. 1079. on further directions, see "Further Directions." on bill and cross bill, 698, 699, 970. on bill and answer, see "Hearing on Bill and Answer." without replication, 383. on cross bill, 698, 699, 970. of causes together, 699. of cause submitted on pleadings, 712. on disclaimer, 377. of motion, 441-443. after pro confesso, 192, 698. on the several kinds of bills, see titles of the various bills, setting cause down for, 695. staying for hearing with other cause, 699. advancing cause for, 695, 699. premature, 712, 715. cause not ripe for, 712. irregularities in bringing cause to, 705. private, 696. continuance of, 695. See "Continuance." postponement of, 695. " order of hearing cause, 695. subpoena to hear judgment, 695. proceedings at, 705. appearance of complainant at, 695. default at, 726. proceedings on, 727. Bacon's ordinance, 1055. objections at, 705. for multifariousness, 153, 154. for want of parties, 699. in United States courts, equity rules 52, 53, pp. 1075, 1076. after cause standing over for, 701. waiver of relief against parties not joined, 700. undertaking to give relief to parties not joined, 700. misjoinder of parties, 85. insufficiency of answer, 354. demurrer incorporated in answer at, 232. without replication, .383. evidtence at, affidavit to bill and answer, 707. contradictory, 712. depositions, 683. proof of documents on, 697, 706-711. proof of exhibits at, 707. IZ'feS IN®EK. [BffilFEBEaifCBS ,ABD WO EfcEEB,] HEARING— Cont'd. additional, '707-711. taken on prelrminary •matters, 707. reading answer as, 671, -672. new, 71'5. in federal court, 677. oral, 677, 706. argument, 710-712. right to open and close, '711. reargument, 712. order that cause stand over, for new parties, 700. for new parties w"here objections made hy pleadings, 701. for new parties, costs on, 700. objection for want of parties after, 701. not appealable order, 701. for proofs, 701, 702. granting injunction at, 517, 518. interlocutory order, modified or vacated at, 705. decree at, 698, 705, 70.6, 718. See "Decree." dismissal at, 712. See "Dismissal of Bill"; "Ees Judicata." without prejudice, 714. where improbability of iuture success, 713. for want of prosecution, 695. for multifariousness, 712. presumed to be on merits, 714. permission to sue again, 713. costs on, 705. See "Costs." directing action at law, 702. See "Action at Xiaw." retaining bill with liberty to bring action at law, 703. reopening cause after, 715. voluntary dismissal before, 575. See "Dismissal ol Bill." after cause set for, 581. after, ,575, 576, form oi decree dismissing bill at, 715.. form of order that cause stand over for new parties, 701. form of order that cause stand over to supply proofs, 702. HEARING ON BILL AND ANSWER, 354, 6»7, 698. when proper, 354, 697, 698. bill, allegations of, on, 697. matter in, not admitted nor denied, 698. answer, requisites of, oil, 69.8- taken as true, 697. leave to file replication after, 698. INDEX. 1269 [lEErBSElXCIDa ARB: OTQ FAISIES.] HEARING ON BILL AND ANSWER— Cont'd. Bacon's ordinance concerning, 1055. see "Hearing"; "Replication." HEIR, joinder as party with administrator, 71. joinder as party with executor, 34. as party to bill of revivor, see "Bill of Revivor." as party to bill for sale of land, 60. as party to bill to recover assets,, 61. bill to perpetuate testimony by, SSS, 843". bill of review by, 984, 985. bill in nature of bill of review by, 1020, 1021. bill of revivor by or against, 916, 919, 923, 925-927. HIGH COURT OF JUSTICE, 9. HOUSE OP LORDS, jurisdiction of, in England, 9, 799, 800. HUSBAND (see "Husband and Wife"; "Married Woman"). HUSBAND AND WIPE, suits between, in equity, 21, 22. statutes authorizing suits between, 22. effect on jurisdiction of equity, 2^3; suits by and against wif.e, see "Married Woman." service on, 164. appearance by, 217. answer of, 21. see "Joint Answer"; "Married Woman." IDIOT, capacity to sue, 15, 22. to be sued, 15, 23. information in behalf of, 22. next friend, suit by, 23. guardian, suit by, 22. defense by, 23. demurrer for suit without, 247. committee, suit by, 22, 23. defense by, 24, 222, 223. when interests adverse, 23. when none, 22, 23. guardian ad litem, defense by, 24, 25, 222, 223. 1270 INDEX. [BEFEBENOES ABE TO PAGES.] IDIOT— Cont'd. appointment of, 222, 223. appearance by, 222. plea of, 290. answer of, 348. admissions in, 654. exceptions to answer of, 358. receiver for estate of, 480. see "Lunatic"; "Weak-Minded Person"; "Guardian"; "Guardian Ad Litem"; "Next Friend"; "Committee." ILLINOIS, summons in, 160, 161. exceptions to answer not under oath, 358. replication, 383. time of filing, 383. cross bill, 958, 959. ne exeat, 502. oral evidence in, 677. ILLITERATE PERSON, answer of, 348. form of jurat to answer of, 338. service of injunction on, 532. IMPEACH DECREE, BILL TO (see "Bill to Impeach Decree for Fraud"). IMPERTINENCE (see "Scandal and Impertinence"; "Exceptions to Answer"; "Exceptions to Bill"; "Bill"; "Answer"). INADEQUATE REMEDY AT LAW (see "Adequate Remedy at Law"; "Jurisdiction"; "Dismissal for Want of Equity"; "Dismissal for Want of Jurisdiction"; "Want of Equity"; "Demurrer"; "Plea"; "Answer"). INCONSISTENT ALLEGATIONS, in bill, 139-141. in cross bill, 956. in amendment to bill, 417. INCONSISTENT DEFENSES, in answer, 325. on, appeal, 326. INDISPENSABLE PARTIES, definition of, 57-59. illustrations of, 60. INDEX. 1271 [bix'ebgnces abb to pages.] IN ESSE, representation of parties not, 49, 53. INFANT, capacity to sue, 15, 18. to be sued, 15, 18. who may sue for, 18. next friend, must sue by, 18. where suit not for benefit of, 18. reference to inquire whether for benefit, 20. by two persons as next friends, 19. See "Next Friend." defense of suit by guardian ad litem, 19, 218-222, 347. See "Guard- ian Ad Litem." guardian, right to defend by, 19. as party, position of, on record, 75. service of process on, 164, 218. appearance by, 218. See "Guardian Ad Litem." answer of, 19, 220, 331, 346-348. amendment of, at maturity, 20. putting in better, at majority, 731. admissions in, 654. scandal and impertinence in, 19. new, at majority, 347. exceptions to answer of, 358. decree against, see "Decree." without service of process, 218, 219. consent decree, 724, 732-734. See "Consent Decree." day to show cause against, 729, 730. reservation of day to show cause against, 729, 730. impeaching, 728, 731, 732. decree pro confesso against, 198. compromise of rights or claims of, 733, 734. bound by act of solicitor, 733. not bound by stipulation, 470. bill of discovery against, 871. bill of review by, 985. receiver for estate of, 480. collusion of next friend, 18. prayer for relief by, 109. name of unbaptized infant in subpoena, 161. , married woman, 217. attaining majority pending suit, see "Majority, Infant Arriving at." plea of infancy, 290. suits by, in United States court, equity rule 87, p. 1087. form of demurrer for suing without next friend, 257. form of answer of, 347. 1272 INDEX, [EEPEaBENCES ABB TO PAGES.] INFANT— Cont'd. form of reservation of day to show cause, 730. see "Guardian Ad Litem"; "Next Friend." INFORMATION, on behalf of government, 90. on behalf of idiots, 22, 90, 91. on behalf of lunatics, 22, 90, 91. on behalf of charity, 91. in contempt proceedings, 553. necessity of relator, 90, 91. dismissing as information, and retaining as bill, 92. see "Attorney General." INFORMATION AND BELIEF, allegations in bill on, 135, 136. allegation of acts of defendant on, 339-341. allegation of act of third persons on, 275. allegations in answer on, 657, 658. allegations in plea on, 275. answer on, 339-341. admissions in, 654. evidence to overcome, 658, 670. bill for preliminary Injunction on, 519. verification of bill on, 118. verification of answer on, 334. admission of allegations on, by demurrer, 238. see "Allegations"; "Bill"; "Answer"; "Plea"; "Demurrer" "Admissions"; "EvideBce." INFORMATION AND BILL, 91. IN HAEC VERBA, pleading documents, 132-134, 345. see "Documents"; "Exhibits." INJUNCTION, definition of, 512. nature of, 512. is preventive remedy, 512, 513. jurisdiction to grant, 514. classes of, mandatory, 512, 513. in case of easements, 513. granting on interlocutory application, 516. indirect method of granting, 512, 513. discouraged in some jurisdictions, 512, 516. INDEX. 1273 [bbfeeences aee to pages.] INJUNCTION— Cont'd. temporary, 514, 516, 517. prayer for, 112, 113. Bacon's ordinance, 1049. provisional, 514. preliminary, 515. determines no rights, 515. generally not mandatory, 516. in discretion of court, 515. not granted on allegations on information and belief, 519, 520. before answer, 516. distinction from special, 514. preserves status quo, 515. prayer for, 514, 515. perpetual, 514, 515, 518. only made at bearing, 518. interlocutory is not prerequisite, 518. office of, 518. granted, tbough preliminary improper, 515. ex parte. Bacon's ordinance against, 1048. interlocutory, 515. general, 517. on filing of bill, 517. distinction from preliminary, 517. at hearing, 518. substituted for provisional, 518. common, 514. special, 514. judicial v/rit of, 513. remedial writ of, 513. restraining orders, 517. in United States courts, 517. when proper, 514. to stay proceedings at law, 66, 519. in United States courts, equity rule 55, p. 1076. \ Bacon's ordinance, 1048, 1049. to stay judgments at law, 519. in aid of receiver, 496. for possession, Bacon's ordinance, 1049, 1050. after sequestration. Bacon's ordinance, 1050. on petition of committee of lunatic, 519. on bill by taxpayer, 149, 150. in interpleader suit, 821, 824. on ground of fraud, 520. to prevent irreparable injury, 515. 1274 INDEX. [EEFEEENCES ABE TO PAGES.] INJUNCTION— Cont'd. for violation of decree, Bacon's ordinance, 1050. to enforce decree, 513. against waste. Bacon's ordinance, 1050. against nuisance, 513. mandatory, 513. parties, 71. persons against wiiom granted, 528. against corporation, 536. against constructive parties, 528. against attorneys, 66, 536. against agents, 536. against voluntary associations, 45. against servants, 536. frame of bill, 519. certainty in, 520. multifariousness in, 149. allegation of irreparable injury, 520. allegations on information and belief, 519, 520. on information from defendant, 520. prayer for, in prayer for relief, 515, 520. general prayer, 520. special prayer, 111-113. for preliminary injunction, 514, 520. for temporary injunction, 112, 113. in prayer for process, 112, 515, 520, 521. verification of,' 117, 118, 521. where facts not in personal knowledge, 521. how obtained, 522. application for injunction, bill must be filed, 519. exceptions, 519. before answer, 516, 517. on amended bill, 521. on supplemental bill, 521. notice of, 527. necessity of, 527. when, dispensed with, 527. want of, cured by perpetual injunction, 518. want of, waived by motion to dissolve, 528. reference to master, 522. recommendation of, by master, 527. bond, 519, 531. bringing money into court. Bacon's ordinance, 1049. order granting, 528, 529. INDEX. 1275 [BEFEBENOES ABE TO PAGES.] INJUNCTION— Cont'd. should define acts to be enjoined, 529. construction of, 529. not construed as enjoining beneficial acts, 529. to show cause why Injunction should not be Issued, 558. on Sunday, 531. effect of, 534. time of operation of, 535. writ of injunction, frame of, 531. prepared by solicitor, 531. signed and sealed by clerk, 531. should be explicit, 531. notice of issuing, 533. service of writ, 532-535. on illiterate person, 532. with subpoena, 534. when personal may be dispensed with, 532, 535. out of jurisdiction, 532. extraordinary on agent, 167, 169. knowledge equivalent to, 532-535. notice ec[uivalent to, 532-535. service by copy of order, 533. persons affected by, 535, 586. persons named in writ, 535, 536. obedience of, 534. of erroneous Injunction, 534. of void injunction, 535. of injunction broader than bill, 534, 535. violation of, 535, 536. is contempt, 534, 536. See "Contempt." aiding and abetting, 536. punishment for, 534, 536. before revivor, 935. void injunction, 534. performing act after notice of motion of injunction, 534. continuance of, in court's discretion, 536. modification of, 535, 545. dissolution of, for want of equity, 537. without notice, 537. time of, 537. for fraud in obtaining, 543. for laches in prosecuting suit, 544. Bacon's ordinance, 1049. on court's own motion, 537. on motion, 536-545. 1276 INDEX. [befeebncbs ase to pages. 1 INJUNCTION— Cont'd. notice of motiaa, 540., affidavit to support motion, 541, 542. counter affidavit. 541, 542. on. motloa of party in contempt, 540. bill on motion to dissolve, 537. on bill and answer, 537-539. on answer, waiver of answer under oath, effect on motion to dli^olve, 538, 539. on answer of corporaition,, 34^. on answer denying averments of bill, 537-539i.. where bill verified, 538. on answer not under oath, 538, 53.9-. on matters of avoidance in answer, 5*9. on answer of part of defendants, 539-. requisites of answer for dissolution, 538. where several defendants, 539. on answer of co-defendant, 539. not on private petition, Bacon's ordinanee, 104& as to part of defendants, 544. considerations governing court an appsHea-tioia for, 542. causing irreparable injury, 542. working hardship or inanvy, 54a. bad faith In obtaining, 543. at hearing, 518. on dismissal of bill, 545. dismissal of bill dissolves, 544. dismissal of bill on motion to dissolve, 545, order of dissolutiOD, 544. terms on dissolution, 544. bond on dissolution, 544. restoring status quo, 544. writ of restitution on, 544. arguMient of exceptions, to answer, on motion to disaoive, 368. in United States couirts, pending appeal, eqmity rule 9a„ p-,. 1089. notice of application to file supplemental bill far, 906^, 907. amendment of bill without prejudice, 413, 520. forms of bills for, 522, 525. form of supplemental bill for, 903. form of certiiicate of master recommending^ 5X7. form of order for, 529. form of writ of, 531. form of motion for, 528. form of notice of motion to dissolve,, 541. form of decree dissolving and dismissing bill,. 545. INDEX. 1277 [EEFEBEJfCES ABE TO PAGES.] INJUNCTION— Cont'd. form of decree denytag aad dismissing bill, 530. form of decree for perpetual, 546. form of petition for attachment for violation of, 555, form of prayer of bill for. Hi. INJUNCTION BOND, 519, 531. INJURY, same kind of injury not sufficient to prevent multifariousness, 148. allegation of, to complainants, 126. in case of fraud, 126. IN PERSONAM, intervention in suits, 79. decree, 727. on constructive service, 171, 197. IN REM, intervention in suits, 79. decree, 727. on constructive service, 170, 171, 197. against property of foreign sovereign, 17. INSANE PERSON (see "Lunatic"). INSOLVENCY, receiver in case of, 480, 481. bill in nature of bill of revivor in case of, 1023. see "Insolvent"; "Trustee of Insolvent." INSOLVENT, representation of, by trustee or assignee, 54. INSPECTION OF DOCUMENTS, right to, 406. defendant's right, 225-227. in case of forgery, 226. order for, 406. deposit of documents for, 407. reasonable time for, 407. sealing up other portions of, 407. interrogatories to ascertain compliance with order, 407. see "Production of Documents." INSTRUMENT IN WRITING (see "Documents"). INSUFFICIENCY (see "Demurrer"; "Answer"; "Plea"; "Exceptions to Answer"). 1278 INDEX. [BEFEBENCES ABE TO PAGES.] INTEREST, joinder of persons having distinct interests, 70-72. complainants having adverse, 70. all complainants must have, 69-71. defendants having common, with complainant, 130. complainants' need not be coextensive, 148. in object, 35. in subject-matter, 35, 36, 61, 62, 79, 126. in part of subject-matter, 61, 145. in all matters unnecessary, 62. probability or possibility of, 125. in whole subject-matter unnecessary, 61. all parties must have, 35, 36, 69-71, 79. parties having small, see "Parties." real party in, see "Real Party in Interest." parties having common, see "Common Interests." parties having general, see "Common Interests." change of, pendente lite, 894-897. See "Purchase Pendente Lite"; "Purchaser Pendente Lite." multifariousness, where interest in part of matters, 145. where interest common in part of subject-matter, 145. created to oust jurisdiction, see "Parties"; "Dispensing with Par- ties." of parties complainant in bill to perpetuate testimony, 838-840. of defendant in bill to perpetuate testimony, 839. of complainant in interpleader, 812. allegations of, in bill, 62, 125, 126. of parties, 62, 119, 124. of complainant, 119, 124. of defendant, 326. in bill of discovery, 863, 864. to maintain various bills, see titles of various bills, demurrer for want of, 71, 244, 249, 250. of complainant, 71, 244, 249. of joint complainant, 249. of defendant, 250, 257. form of demurrer for want of, in defendant, 257. see "Demurrer"; "Plea"; "Answer"; "Common Interests"; "Joinder of Parties"; "Misjoinder of Parties." INTERLOCUTORY APPLICATION, definition of, 435. office ot, 435. classes of, 435. see "Motions"; "Petition"; "Orders." INDEX. 1279 [EEFEEENCES ABE TO PAGES.] INTERLOCUTORY DECREE, ■what decrees are, 718-721, 800. modification of, at hearing, 705. effect of dismissal of bill on, 578. further directions after, 766. see "Decree"; "Decretal Orders"; "Orders." INTERLOCUTORY INJUNCTION (see "Injunction"). INTERLOCUTORY ORDERS (see "Orders"). INTERPLEADER, BILL IN NATURE OP BILL OF, distinction from bill of interpleader, 831, 832. by complainant having interest, 832, 833. by complainant having right to establish, 832. by complainant entitled to equitable relief, 832. by purchaser, 832. for redemption of mortgage, 832. parties to, 832. see "Interpleader, Bill of." INTERPLEADER, BILL OF, is original bill, 93, 812. definition of, 811. distinction from bill in nature of bill of interpleader, 831-833. office of, 811. for protection of stakeholder, 811. is discouraged, 815. requisites of, claim by two or more, 812. common source of claimants' titles, 812. no interest of complainant, 812. complainant indifferent, 812. complainant a mere stakeholder, 811, 813, 816. possession of complainant, 813. doubt or ignorance of complainant, 817. specific sum or property, 815. by wrongdoer, 814. by partnership, 821. by sheriff, 814. by corporation, 820, 821. by officer of corporation, 823. by bank to determine ownership of deposit, 812. by holder of stock in escrow, 812. other equitable remedy does not prevent, 816. doubt or ignorance of complainant, 817. contract between complainant and both defendants unnecessary, 815. 1280 INDEX. [EBFEEENOES ABE TO PAGES.] INTERPLEADER, BILL OF— Cont'd. where liability to both defendants, 814. claims to parts of funds, 81-3. where complainant's liability to be tried, 814. where debt or duty clearly owed to one, 817. equitable claim against complainant, 814, 815. legal claim against complainant, 814, 815. frame of bill, 816. showing defendants' claims, 816-818. must admit title of defendants, 817. must show doubt to whom debt or duty owed, 817. must show ignorance of defendants' rights, 817. must show complainant a stakeholder, 816. must admit title of defendants, 817. must show right to interpleader, 817. must show persons capa'ole of interpleader, 817. must offer to bring fund into court, 818. prayer of, 818. for injunction, 818. verification of, 117, 820, 821. affidavit of noncollusion, 820. by partnership, 821. where several complainants, 821. by corporation, 820, 821. contents of, 821. on motion for preliminary injunction, 821. demurrer for want of, 821, 825. form of, 822. where bill states noncollusion, 821. time of filing, 816. before suit brought, 815. after suit brought, at law, 816. after verdict at law, 816. payment of money into court, 822. on granting injunction, 825. dismissal on, 822. offer to bring money into court, 818, 822. demurrer for omission of, 818, 822, 826. offer to bring value of chattels into court, 818. bringing deeds to land into court, 818. parties, persons making no claim, 822, 823. new defendant on disclaimer of one, 822. objection for nonjoinder, 822. defendant's title, 812. common source of title, 812. INDEX. 1281 [EErEBENCES ABE TO PAGES.] INTERPLEADER, BILL OF— Cont'd. privity between, 813. where none, 813, 814. adverse titles of, 812, 813. process, 823. service on nonresidents, 823. out of state, 823. complainant must bring in nonresident, 823. substituted service, 169. nonresident not appearing, other defendant gives security, 823, 824. taking bill pro confesso, 823. other defendant entitled to fund, 823, 824. demurrer to, 825. for want of aflSdavit of noncoUusion, 821, 825. for omission to offer to bring money into court, 818, 826. failure to demur affects costs, 826. answer, 826. as evidence, 826, 827. claim of greater amount in, 826. as evidence against co-defendant, 827. controverting amount in complainant's possession, 826. disclaimer by one defendant, 822. replication, 824, 827. hearing, 827. right to interpleader first determined, 828. final decree on, 829. evidence, 827. answer as, 827. answer of one defendant against co-defendant, 827. benefit of other defendant's discovery, 829. closing proofs, 824, 827-830. trial, methods of, 828. determination on pleadings, 829. reference to settle defendant's rights, 829. directing issue, 829. directing action at law, 829. decree of interpleader, 828, 830, 832. is only decree complainant can have, 832. dismissal of complainant, 828, 830. is interlocutory, 828. effect on complainant's liability, 828. effect on defendants, 828. decree, shaping to do complete equity, 830. dismissal of complaint, 828. on payment of money into court, 822. Equity — 81. 1282 INDEX. [eefebences aee to pages.] INTERPLEADER, BILL OF— Conf d. effect of, 830. dismissal on danger of double litigation removed, 830. eosts, 828, 830. where bill properly filed, 830. of complainant out of fund, 830. failure to demur affects, 826. against defendant wrongfully claiming, 830. cross bill, 812, 826. injunction, 821, 824. affidavit of noncoUusion on motion for, 821, 824. payment of money into court on granting, 824, 825. against action at law, 818, 824. solicitor's fee to complainant, 830. fund in controversy, payment into court, 818, 822. order to bring into court, 818. already in court, 815. controverting amount of, 826. petition for, 815. proceeding at law for balance of, 826. defendants' proceedings, litigation between defendants, after interpleader, 829. decision between, at first hearing, 829. case between, after dismissal of complainant, 829. withdrawal of claim by one, 829. compromise between, 829. form of bill of, 819. form of affidavit of noncoUusion, 822. form of order for injunction on, 825. form of interlocutory decree directing reference, 831. INTERROGATING PART OF BILL, origin of, 96, 108. office of, 96, 97, 107, 108. cannot cure defects in stating part, 104. in United States courts, equity rules 41-44, pp. 1073, 1074. form of, 99. INTERROGATORIES, in bill, foundation for, 108, 319. charging part as, 108. stating part as, 108, 318. construed by charging part, 106. hypothetical, 108. exposing to forfeiture, 251. See "Forfeiture"; "Bill of Dis- covery." INDEX. 1283 [EEFERENCES ABE TO PAGES.] INTERROGATORIES— Cont'd. exposing to penalty, 251. general sufficient to require full answer, 108. answer to, 108, 318, 319. See "Answer." effect of, 108. as evidence, 109. See "Evidence." to special interrogatories, 318, 319. See "Interrogating Part of Bill." exceptions for not answering, 355. in United States courts, 109. equity rules 41-44, pp. 1073, 1074. after plea overruled, 316. on order for production of documents, 407. in contempt proceedings, 551, 552, 560, 565. INTRODUCTORY PART OF BILL, description of parties in, 102, 103. failure to state, 103. allegation of citizenship in federal courts in, 102, ll'H failure to state, 103. demurrer for failure to state, 103. form of, 103. equity rule 20, p. 1067. form of, 97. INTERPRETER, order appointing, 334, 335, 348. oatli administered by, 334-336, 348, 349. form of order appointing, 335. INTERVENTION, definition of, 79. in suits in personam, 79. in suits in rem, 79. in creditors' bill, 80. in appellate court, 80. diligence in, 79, 80. who may intervene, 79. petition, 80. effect of filing, 80. parties to, 79, 80. objection to, 81. effect of, 81. order making petitioner a party, 80. amendment of bill on, 81. answer to original bill by intervener, 80. appeal by intervenor, 81. 1284 INDEX. [BEFEBENCES ABE TO PAGES.] ISSUE, facts in, 122. decree beyond, 122. when cause at, in United States courts, equity rule 66, p. 1080. see "Feigned Issue"; "Hearing." ISSUE TO JURY (see "Feigned Issue"; "Action at Law"). J- JOINDER OF DEFENSES, in answer, 325. of plea, demurrer and answer, 229. each applicable to distinct part of bill, 231. JOINDER OP PARTIES, administrator and heir, 71. administrator and vendee of intestate, 71. assignor and assignee, 62, 63, 70. bankrupt and trustee, 54, 63-67. creditors, 73. See "Creditors' Bills"; "Creditors." creditors and receiver, 54. depositors in bank, 73. executor and heir, 34. executor and residuary legatee, 36. persons defrauded, 72, 73. guardian and sureties, 74. owners of land derived from common source, 73, 76. stockholders, 73. See "Corporation"; "Stockholders." wards entitled to same estate, 74. rule as to, not inflexible, 70. interest of parties joined, see "Joinder of Parties"; "Misjoinder of Parties"; "Interest"; "Common Interests"; "Plea"; "Demur- rer." all must have, 70, 71. common, of complainants, 70. common, of defendants, 75. identity of, 76. in question, 76. in subject-matter, 76. demurrer for want of, 71, 235, 253. complainants, all entitled to relief, 69, 70. all must have interest, 70, 71. having common interest, 70. having adverse interests, 70. having general right against defendant, 76. INDEX. 1285 [beferences aee to paues.] JOINDER OF PARTIES— Cont'd, having common object, 71. not having common interest, 71. defendants, guilty of combination and fraud, 76, 77. having common Interest, 75. having interest common with complainant, 130. unconnected persons having common interest, 72. to prevent multiplicity of suits, 71-73. see "Misjoinder of Parties"; "Parties"; "Complainants"; "De- fendants"; "Multifariousness." JOINT ANSWER, where proper, 21, 330, 332, 363. of married woman, 21. of husband and wife, 21. title of, 330. signature to, 332. exceptions to, 363. in United States courts, equity rule 62, p. 1079. JUDGMENT, rigidity of, at common law, 4. parties to bill to impeach, 60. injunction staying, 519. bill to suspend or avoid operation of, 1013, 1014. ne exeat to prevent defeat of, 500. plea of former, 299. see "Res Judicata"; "Decree." JUDICIAL, NOTICE. allegation of facts in, 137. proof of facts in, 652. matters judicially noticed, 137, 652. constitution, 138. counties, 137. foreign governments, 137. laws of foreign nations, 138. laws of other states of Union, 138. ports and waters, 137. practice of the court, 137. public laws, 137. rules of court below, 388. state boundary, 137. JURAT (see "Oath"; "Verification"; "Forms"). 1286 INDEX. [befeeences are to pages.] JURISDICTION, common law of court of chancery, 5, 6. equitable, of court of chancery, 5-9. equitable, causes of rise of, 6-8. in United States, 1. classification of, 5, 245. administrative, 770. litigious, 770. protective, 770. over foreign sovereign, 17. of suit between husband and wife, where statute provides for suit at law, 22. to order reference, 594, 595. to appoint receiver, 480. to make rules, 384. to issue injunction, 514. parties out of, 37-40, 58, 59, 113. in United States courts, equity rules 47, 48, pp. 1074, 1075. with Interests created to oust, 38, 58. United States equity rule 47, p. 1074. decree against parties out of, 40, 58, 59. is dependent on pleadings, 87. bill must state case within, 122. not ousted by charging part of bill, 107. process cannot run out of, 171. service of process out of, 163. See "Absent Parties"; "Nonresi- dent"; "Constructive Service"; "Extraordinary Service"; "Sub- stituted Service." appearance conferring, 213. not over subject-matter, 213. appearance to question, 209. See "Appearance." want of, objection on court's own motion, 246. motion to dismiss for, 586. See "Dismissal for Want of Juris- diction." demurrer to, 243-247. not in any court, 243, 244. other court has, 243, 247. other court of equity has, 243, 247. plea to, where want of, not on face of bill, 586. not in any court, 289. other court has, 290. other court of equity has, 290. multifariousness where one subject-matter out of, 144. of United States courts, see "United States Courts." i INDEX. 1287 [refeeences ake to pages.] JURISDICTION CLAUSE OF BILL, office of, 107. Is superfluous, 107. form of, 99. JURISPRUDENCE, division of, 1. equity a branch of, 1. JURY TRIAL, constitutional riglit to, 565, 566. right to, in chancery, 628. right to, in contempt proceedings, 565. see "Feigned Issue"; "Action at Law"; "Contempt." K. KNOWLEDGE, facts in complainant's, 121. facts in defendant's, 121. answer on, 339-341. see "Answer"; "Allegations"; "Information and Belief"; "Bill"; "Facts." L. LACHES, excusing in bill, 128. concealed fraud excusing, 128, 129. cestui que trust avoiding, 128, 129. objection for, on court's own motion, 306. pleading, 306, 327. j demurrer for, 128, 244. plea of, 306. answer asserting, 306, 327. after demurrer, 306. in prosecution of suit, 583. of injunction suit, 544. dismissal for want of prosecution on ground of, see "Dismissal for Want of Prosecution." see "Delay"; "Limitations, Statute of"; "Demurrer"; "Plea"; "Answer"; "Bill"; "Allegations." V LAPSE OF TIME (see "Delay"; "Laches"; "Limitations, Statute of"). LAW, pleading matters of, 137. 1288 INDEX. [EErEEENOES AEE TO PAGES.] LAW— Cont'd. allegation of law and fact intermingled, 137. judicial notice of, 137. parties interested in common question of, 151. See "Common In- terests"; "Interest." demurrer admitting matters of, 238. answer to matters of, 320. stipulation as to, 468, 469. LEAVE, to bring action relating to receivership, 25-29. to receiver to sue, 25-27. to receiver to defend, 27. to sue receiver, 26, 496, 549. suit against receiver without, 496, 549. plea of want of leave to sue, 26. to sue receivers of United States courts, statute relating to, 26, 27. to amend pleading, 410-427. to amend bill, see "Amendment of Bill." to amend answer, see "Amendment of Answer." to amend other pleadings and proceedings, see respective titles thereof, to file several pleas, 277. to withdraw answer and file demurrer, 352. to file cross bill, 958, 959. to file bill of revivor, 931, 932. to file bill of revivor and supplement, 942. to file bill in nature of bill of revivor and supplement, 948. to file bill of review, 983. to file bill in nature of bill of review, 1021. to file supplemental bill in nature of bill of review, 1037, 1040. to file bill to impeach decree for fraud, 1008. to file supplemental bill, 889, 907. LEGAL TITLE, owner of, as party, 62, 63. directing action at law to try, 702-705. LEGATEE, suing In behalf of other legatees, 43. representation of, by executors, 52. joinder of residuary legatee and executor, 36. bill for legacy by, 101. costs of suit by, 776. INDEX. 1289 [EEFEBENCES AEE TO PAGES.] LETTER MISSIVE, prayer for, against peer, 113. LETTERS OF ADMINISTRATION (see "Administrator"). LETTERS ROGATORY, origin of, 681. office of, 680. jurisdiction to issue, 682. when issued, 680. application for, 681. procedure on, 681. contempt of summons on, 682. form of, 682. form of rule to show cause for contempt of summons on, 682. LIBERTY TO APPLY (see "Decree"; "Forms"). LIFE TENANT, representation of remainderman, 51. in partition suit, 54. see "Representation"; "Remainderman." LIMITATIONS, STATUTE OF, allegation of facts avoiding, 128. concealed fraud avoiding, 128, 129. pleading, 297. demurrer for, 128, 244, 247, 297. plea of, 282, 285, 296, 297. answer in support of, 282, 297. to bill of revivor, 933. answer asserting, 327. after opening pro confesso, 200. to filing bill of review, 988. to filing bill to impeach decree for fraud, 1007. form of answer asserting, 338. LIS PENDENS, on amendment of bill, 420. on supplemental bill, 887, 892, 893. Bacon's ordinance concerning, 1047. LORD CHANCELLOR, history of office of, 5-9. early chancellors were ecclesiastics, 88. LOST INSTRUMENT (see "Bill of Discovery"; "Bill for Discovery and Relief"; "Documents"; "Verification"). 1290 INDEX. [EEFERENCES ABE TO PAGES.J LUNATIC. capacity to sue, 15, 22. to be sued, 15, 24. next friend, suit by, 23, 24. committee, suit by, 22, 23. defense by, 24, 222, 223. where interests adverse, 22, 222, 223. wben none, 22, 23. guardian, suit by, 22. defense by, 24, 222, 223. guardian ad litem, defense by, 24, 222, appointment of, 222, 223. parties to suit by, 22, 23. information on betialf of, 22-24. injunction on petition of committee, 519. no exeat on affidavit of committee, 504, 505. receiver for estate of, 23, 24, 480. service of process on, 164, 165. appearance by, 222. answer of, 348. demurrer for suing without committee, 247. plea to person of, 290. affidavit of, 464. bill to perpetuate testimony of, 838. see "Weak-Minded Person"; "Committee"; "Guardian Ad Li- tem"; "Idiot"; "Conservator." M. MAJORITY, INFANT ARRIVING AT, does not cause abatement, 732. adoption of pending suit, 20. reference to Inquire whether beneficial, 20. answer, amendment of, 20. putting In better, 731. putting In new, 347. showing cause against decree, see "Infant"; "Decree." impeaching decree, see "Infant"; "Decree." bill of review at, 985, 986. liability for costs at, 20. MANSFIELD'S OPINION OF EQUITY, 3. MARRIAGE (see "Husband and Wife"; "Married Woman"). MARRIED WOMAN, capacity to sue, 15. INDEX. 1291 [BEPEBENCES ABE TO PAGES.] MARRIED WOMAN— Cont'd. to be sued, 15. suit by, jointly with husband, 20, 21. by next friend, 21. when separate property involved, 21. where husband banished, 21. where rights in opposition to husband claimed, 21. where alien abandoned by husband, 17. suits against alien, abandoned by husband, 17. service of process on, 164. appearance by, 217. by guardian ad litem, 217. duty of husband to enter, 217. answer of, 350. jointly with husband, 21. separate, 17, 21. when husband banished, 21. statute removing disabilities of, 22. statute conferring right to sue husband, effect on jurisdiction of equity, 22. demurrer for suing alone, 247. plea of coverture, 290. bill of revivor on marriage, 921. bill of discovery against, 862. see "Husband and Wife." MASTER IN CHANCERY, office of, 592. history of office of, 592. a judicial officer, 592. a ministerial officer in Illinois, 592. appointment of, 593. regular, 593. special, 593. competency of, 593. should be disinterested, 593. compensation of, 593, 594. bond of, 593. duties of, 592, 593. Bacon's ordinance concerning, 1052, 1053. must obey order of reference, 603. must pass on all matters referred, 604. to make computations, 593. to state accounts, 593. to settle deeds, 593. to execute deeds, 762. 1292 INDEX. [rEPEBENCES ABE TO PAGES.] MASTER IN CHANCERY— Cont'd. to make sales, 593, 762. to appoint trustee, 593. liabilities of, 593. objections to, 598. changing, 598. reference to, see "Reference." report of, see "Master's Report." withdrawal of reference from, 598. attendance before, 599. in United States courts, equity rules 73-84, pp. 1084-1087. appointment of, as receiver, 483. see "Master's Report"; "Reference"; "Evidence"; "Affidavit." MASTER OF THE ROLLS, office of, 8, 9. MASTER'S OFFICE (see "Master in Chancery"; "Master's Report"; "Reference"). MASTER'S REPORT, general, 609. separate, 609. on exceptions to answer, 366, 367. on plea of another suit pending, 295. frame of, 609. should state facts, 610. statement of conclusions in, 609, 610. interpretation of documents in, 620. must not be broader than proof, 610. must not be more extensive than order of reference, 603, 607, 610. should not be repugnant to order of reference, 603. should state only results, 610. should not state evidence without conclusions, 610. must not be broader than pleadings, 610. must not be broader than order of reference, 603. surplusage in, 618. as to matters not referred, 603. of account, 610. Bacon's ordinance concerning, 1052, 1053. in United States courts, ectuity rule 76, 1084. return of evidence with, 615, 616. objection for failure to return evidence, 616. exceptions for failure to return, 616. evidence omitted, 614. return of orders, notices, etc., 610. INDEX. 1293 [BEFEEENCES ARE TO PAGES.] MASTER'S REPORT— Cont'd, of legal questions, 610. errors in, 612-615, 617-624. of law, 613. of law, method of attack on, 613. immaterial, 622, 624. not prejudicial, 623, 624. findings in, presumptively correct, 620. equal to verdict, 620. advisory in Illinois, 620. palpably wrong, 620. correction of, by court, 622. court examines evidence on exceptions for errors in, 624. effect of, 619. presumptively correct, 620. equal to verdict, 620. conclusiveness of, 619. presumption of correctness, B20. none as to conclusions of law, 620. draft of, 608. notice of, 608. objections to, 612. must be specific, 613, 614. in nature of special demurrer, 614. office of, 612. recital of evidence in, 614. when necessary, 612, 613. where evidence omitted, 614. failure to file, 612, 613. frame of, 613, 614. master's action on, 615. permission to file exceptions when none filed, 613. correction of, by master, 608, 615. filing, 615. in United States courts, equity rule 83, p. 1087. withdrawal of, 623. is part of record, 739. proceedings on, 621. motion to set aside, 623, 624. exceptions to, 617. office of, 616, 617. where no objections filed, 617. where all evidence not reported, 624. bring up all questions, 617, 618. to report of account after merits disposed of, 618. facts not before master, 616. 1394 INDEX. [EEFEEENCES ARE TO PAGES.] MASTER'S REPORT— Cont'd. for failure to return evidence, 616. court examines evidence on, 624. general, 625. in United States courts, equity rules 83, 84, p. 1087. hearing on, 623. who sets for, 623. with motion to set aside for irregularity, 623, 624. on further directions, 767. scope of, 623, 624. evidence on," 624. abstracting evidence on, 624. allowance of exceptions, 624. of one exception, 625. overruling exceptions, 621, 624. where errors immaterial, 624. decree without order allowing or overruling, 624. improper to correct irregularities of proceedings, 618. propriety of reference not open on, 624. for surplusage, 618. filing, 617. extending time for, 619. failure to file, 617, 619. where no obiections filed, 612, 613. in United States courts, equity rules 83, 84, p. 1087. amendment of, 618. extending, 618. exceptions to amended report, 618. action of court on, 621-623. correction by, 622. modification of, by decretal order, 622. rule nisi to confirm, 615. re-reference to review, 621. re-reference to strike out matter not referred, 603. recommitment of, 622. setting asiae, 618, 623. confirmation of, 517, 615, 621-623. review of report too broad, 610. dismissal by complainant after report, 576. form of report, 611. form of report on exceptions, 369. form of notice of draft of, 609. form of objections to, 614. form of exceptions to, 619. form of order allowing exceptions, 744. form of order overruling exceptions, 625. form of order confirming report, 625. INDEX. 1295 [refebences ake to pages. 1 MATTER IN PAIS, plea of, 284-286. MICHIGAN, subpoena, 161. bill in nature of bill of revivor and supplement in, 947. MINOR (see "Infant"). MISJOINDER OF CAUSES, inconvenience of, 141. necessary elements of, 144. distinct grounds of action must be alleged, 144. distinct grounds of action must exist, 144. only one ground of equitable relief stated, 144. one subject-matter out of Jurisdiction, 144. matters of same nature, 145. common interest in subject-matter, 145. interest in part of matters, 145. several grounds to support one claim, 145. i two causes of action from same transaction, 145. multifariousness from, 141, 143. see "Common Interests"; "Interest"; "Joinder of Parties"; "Misjoinder of Parties"; "Multifariousness." MISJOINDER OF PARTIES, of complainants, 84, 85. having adverse interests, 70. effect of, 70. multifariousness from, 141, 142, 147, 150. of defendants, 85. multifariousness from, 141, 142, 147-153. persons having distinct interests, 70-72. effect of, 84. multifariousness from, 141, 142, 147-153. demurrer for, 84, 85, 235, 253. ore tenus for, 240. objections for, at hearing, 84. dismissal for, 85, 587. amendment to cure, 418. see "Complainants"; "Defendants"; "Common Interests"; "In- terest"; "Joinder of Parties"; "Parties." MISNOMER (see "Name"). MISTAKE, allegations of, in bill, 130. parol evidence in case of, 651. 1296 INDEX. [ebfeeencks aeb to pages.] MONEY, PAYMENT OF, INTO COURT (see "Payment of Money into Court"; "Fund in Court"; "Interpleader, Bill of). MORTGAGE, redemption of, see "Redeem, Bill to." foreclosure of, see "Foreclosure, Bill of." MORTGAGEE, may pursue all remedies at once, 391. vendor's mortgagee as party in suit to rescind, 37. see "Bondholders." MORTGAGOR, see "Mortgage"; "Mortgagee"; "Redeem, Bill to"; "Foreclosure, Bill of." MOTIONS, definition of, 435. distinction from petition, 435, 444. of course, 436. ex parte, 436. contested, 436. special, 436. who may make, 437. party in contempt, 437, 438. See "Contempt." stranger, 438. purchaser, 438. quasi party, 438. for leave to amend, 427. to strike bill from files, 158, 224. to quash return, 175-177. ^ for security for costs, 227. to dismiss bill, 234, 582, 585. See "Dismissal of Bills." to dismiss unauthorized bill, 574, 575. to sue in forma pauperis, 228. to elect remedies, 389. Is special motion, 391. to dismiss by defendant, 582. to dismiss for want of prosecution, 583-585. to dismiss for want of equity, 585. to discharge ne exeat, 510, 511. to dissolve injunction, 536-545. for receiver, 484, 487, 488. for production of documents, 225-227. See "Production of Docu- ments." for payment of money into court, 393, 398. to open pro confesso, 201. INDEX. 1297 [BEFEEENCES ABE TO PAGES.] MOTIONS— Cont'd. to correct decrees, 754. to give effect to decrees, 736. motion papers, 442. scandal and impertinence in, 442. filing, 442. notice of, 436, 438. 9 frame of, 438, 439. title of, 438. specification of order aslied, 439. signature of, 438. service of, 440. proof of, 440. waiver of, 440. of motion to dismiss for want of prosecution, 584. See "No- tice." affidavit to support, 437, 439, 457. hearing of, 441-443. nonappearance at, 443. argument, 441-443. costs on, 443. renewal of, 443. ; making of, as appearance, 210. in United States courts, equity rules 1-6, pp. 1062, 1063. form of motion for receiver, 488. form of motion for injunction, 528. form of notice of, 440. form of notice of motion for receiver, 489. form of notice of motion to dissolve injunction, 541. MULTIFARIOUSNESS, definition of, 141. classes of, 142. causes of, 142. by misjoinder of causes, 143. inconvenience of, 143. by misjoinder of complainants, 147. by misjoinder of defendants, 150. splitting causes, 154. surplusage does not cause, 144. necessary elements of, 144. distinct grounds of action must exist, 144. distinct grounds of action must be alleged, 144. where one subject-matter out of jurisdiction, 144. where only one ground of equitable relief stated, 144. several grounds to support one claim, 146. Equity — 82. 1298 INDEX. [REFERENCES ARE TO PAGES.J MULTIFARIOUSNESS— Cont'd. several grounds, but relief prayed on one, 146, 147. common question of law, 151. matters of same nature, 145. interest in part of matters, 144, 145. common interest in subject-matter, 145. common interest of defendant, 151. common right against several defendants, 152. < common title of complainants, 148. single object of bill, 151. complainants suffering same injury, 148. complainants under several conveyances, 149. distinct matters joined, 142. two causes of action from same transaction, 144, 145. in bill for accounting, 151. in bill to enforce several series of bonds, 143. in bill for contribution, 149. I in creditors' bill, 143. in bill for foreclosure, 142, 143, 148, 150. in bill to set aside several fraudulent conveyances, 152. in bill to impeach decree for fraud, 143, 1008. in bill to restrain nuisance, 147, 152. in bill for partition, 142. in bill attacking several patents, 144. in bill of review, 143. in bill for specific performance, 142. in bill against trustee, 151. in bill against two partnerships, 151. in bill to enforce vendor's lien, 143. in bill to perpetuate testimony, 842. prayer for relief causing, 146. several matters joined, to avoid multiplicity of suits, 145, 146. objections for, 153, 154, 235, 244, 252. objection for, on court's own motion, 153, 154. demurrer for, 153, 154, 235, 244, 252, 254. plea for, 153, 154, 296. answer asserting, 153, 154. objection at hearing, 153, 154. dismissal for, at hearing, 712. amendment to cure, 147. by striking out prayer, 147. amendment causing, 419. waiver of, 153, 154. who may object for, 154. 235. form of demurrer for, 256. see "Bill"; "Common Interests"; "Complainants"; "Defend- INDEX. 1299 [eefeeences aee to pages.] MULTIFARIOUSNESS— Cont'd. ants"; "Interest"; "Joinder of Parties"; "Misjoinder of Par- ties"; "Misjoinder of Causes"; "Multiplicity of Suits"; "De- murrer"; "Plea"; "Hearing"; "Bill to Impeach Decree for Fraud"; "Bill of Review." MULTIPLICITY OF SUITS, avoidance of, 145, 146. prevention of, 71-73. by joinder of parties, 71-73. by joinder of causes of action, 145, 146. by splitting causes, 154. plea of, 296. see "Multifariousness." MUNICIPAL CORPORATION, signature to bill of, 115. N. NAME, of pleadings, 89. construction not dependent on, 89. of parties, 124. in subpoena, 161. of unbaptized infant in subpoena, 161. in afBdavit, 461. in orders, 450. misnomer in bill, plea to, 283. in title to answer, 330. NE EXEAT, definition of, 500. origin of, 500. office of, 500-502. to enforce payment of alimony, 501. to compel exoneration, 502. to enforce demand arising in foreign country, 501. to prevent defeat of judgment by absconding, 500. in bebalf of surety, 502. in suit for specific performance, 501. to enforce contingent demand, 502. to enforce equitable demand only, 502. where adequate remedy at law, 503. where imprisonment for debt abolished, 502. against foreigner, 501. debt enforceable, must be certain, 502. 1300 INDEX. [BEFEBENCES ABE TO PAGES.] NE EXEAT— Cont'd. must be equitable, 502. statute in Illinois, 502. contingent, 502. allegation of, 504. denial of, no ground for discharge, 511. intention of going abroad, 504. denial of, no ground for discharge, 511. danger from departure, 504. when applied for, 503. bill for, prayer for, special, 111, 503. verification of, 117, 118, 501. petition for, 503, 504. amendment of, 417, 505. affidavit for, 504. by committee of lunatic, 505. statement of facts in, 501. who may make, 504. application for, time of, 503. after decree, 503. notice of, 505. allegation of debt, 504. of intended departure, 504. of danger from departure, 504. of fraud, 503, 505. of property not exempt, 505. omission of, 505. bond by complainant, 509. fixed by court, 509. obligations of sureties, 509. service of writ, 509. service of subpoena with, 503. bond of defendant, taken by sheriff, 509. reduction of, 511. discharge of writ, 509-511. petition for, 510, 511. motion for, 510, 511. for want of equity, 510. on answer, 510. affidavits on motion, 510. waiver of right to move for, 510, 511. on payment of money into court, 510. on giving security, 510. for insufficient affidavit of complainant, 510. conditions on, 511. INDEX. 1301 [EEFEEENCES ARE TO PAGES.] NE EXEAT— Cont'd. restraining action for false imprisonment, 511. requiring security to abide decree, 511. statutory provisions for, 500. in Illinois, 502. Bacon's ordinances concerning, 1057-1059. form of bill for, 505. ofprayer for, 114. form of order for, 507. form of writ of, 508. NECESSARY PARTIES, definition of, 58, 59. illustrations of, 60. see "Parties." NEGATIVE PLEAS (see "Plea"). NEW JERSEY, exceptions to answer not under oath in, 358. leave to file bill of review in, 983. decree pro confesso in, 191. NEW MATTER (see "Supplemental Bill"; "Bill in Nature of Supple- mental Bill"; "Bill of Review"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review"; "Amendment of Bill"; "Amendment of Answer"; "Plea"; "Cross Bill"; "Rehearing"; "Bill"). NEW PARTIES, bill does not lie to make, 77. complainant not compelled to make, 77. defendant cannot object to court making, 77. by amendment, 77, 78. See "Amendment of Bill." by supplemental bill, 77. See "Supplemental Bill." by cross bill, see "Cross Bill." by intervention, see "Intervention." cause standing over for, 77, 82. See "Hearing." NEW TRIAL (see "Feigned Issue"; "Action at Law"). NEW YORK, equity in, 10. Code of Civil Procedure in, 10. prayer for process in, 112. NEXT FRIEND, of infant, suit by, 18. 1302 INDEX. [bbfeeences aeb to pages. J NEXT FRIEND— Cont'd, of idiot, suit by, 23. of lunatic, suit by, 23. of married woman, suit by, 21. of weak-minded person, suit by, 23. not a party, 18. who may be, 18. duty of, 18. allegations in bill by, 124. I of lunatic may file bill for receiver, 23, 24. two suits for same purpose, by two, 19. removal of, 18. liability for costs, 20. appointment as receiver, 483. collusion, neglect or mistake of, 18. laches of, as ground for opening decree, 728. in United States courts, equity rule 87, p. 1087. see "Guardian ad Litem"; "Infant"; "Idiot"; "Lunatic"; "Mar- ried Woman." NOMINAL PARTIES, 57. in United States courts, equity rule 54, p. 1056. see "Parties"; "Formal Parties." NISI ORDER (see "Order"). NON COMPOS MENTIS (see "Lunatic"; "Idiot"; "Weak-Minded Per- son"). NON EST INVENTUS, return of, 181. in United States courts, equity rule 8, p. 1064. NONJOINDER OF PARTIES, allegation of excuse for, in bill, 82. denial of by plea, 82. denial of by answer, 82. demurrer for, 81, 82, 242, 253. must be special, 242, 243, 254. must point out proper parties, 243, 254. ore tenus, 240. plea for, 81, 82, 284, 295. must point out proper parties, 284. answer setting up, 81, 82. at hearing, objection for, 82, 699. curing by undertaking to give full relief, 700 curing by waiver of relief, 700. INDEX. 1303 [beferences are to pages.] NONJOINDER OF PARTIES— Cont'd, objection for, after decree, 83. objection for, on rehearing, 794. objection for, on appeal, 83. objection for, by court, 84. objection for, 77, 81, 82. must point out proper parties, 83. dismissal for, 84, 587. ■without prejudice, 588. amendment of bill to cure, 412, 418, 419. opportunity for, before dismissal, 587. dismissal on neglect or refusal of, 587. consent to decree, obviating, 77. form of demurrer for, 256. see "Parties"; "Multiplicity of Suits"; "Demurrer"; "Plea"; "Answer." NONRESIDENT (see "Absent Parties"). service of process on, see "Constructive Service"; "Extraordinary Service"; "Substituted Service." appearance by, 213. personal decree against, 171, 197. NOTARY PUBLIC, authority to administer oath, 460. in foreign state, presumption of authority, 460. administering oath to client, 459. NUISANCE, parties to bill to enjoin, 71. multifariousness in bill to enjoin, 147, 152. mandatory injunction against, 513. NOTICE, of motion, 436, 438-441. for injunction, 518, 527, 528. for receiver, 488, 489. to dissolve injunction, 540. of dismissal for want of prosecution, 584. of petition, 445. of presenting petition for rehearing, 790. of application for ne exeat, 505. of application for writ of assistance, 761. of application for guardian ad litem, 219, 220. of amendment of decree, 755, 756. of reinstatement of cause after dismissal, 589. of draft of master's report, 609. 1304 INDEX. [EEFEEENCES ABB TO PAGES.] NOTICE— Cont'd. of application for leave to file supplemental bill, 906. to defendant, of proceedings after pro confesso, 190. in contempt proceedings, 555. presumption of, notice of proceedings in cause, 212. of orders, 452. of injunction, 532, 534, 535. purcliaser for, value without, see "Purchaser for Value." allegation of, in bill, 129, 130. of proceedings in cause, in United States courts, equity rules 3, 4, p. 1062. form of notice of motion, 440. form of notice of argument of demurrer, 261. form of notice of motion for receiver, 489. form of notice of motion for dissolution of injunction, 541. form of notice of draft of master's report, 689. see "Injunction"; "Receivers"; "Ne Exeat"; "Contempt"; "Pro Confesso"; "Reference"; and titles of various proceedings. NUMEROUS PARTIES, dispensing with, 38, 41-47. privity among, 45. allegations in bill against, 41. in United States courts, equity rules 47, 48, pp. 42, 1074, 1075. see "Common Interests"; "Interest"; "Joinder of Parties"; "Misjoinder of Parties"; "Complainants"; "Defendants"; "Parties"; "Dispensing with Parties"; "Representation." NUNC PRO TUNC, filing replication, 382. orders, 451, 456. See "Orders." decree, 750. See "Decree." amendment of, 756. see "Appeal"; "Reference." 0. OATH, of Christian, 334. of person not Christian, 334, 464. by interpreter, 334. authority to administer, 459. notary public, 460. notary public in foreign state, 460. by attorney to client, 459, 460. in United States courts, equity rule 59, pp. 333, 1078. answer of corporation without, 334, 349. INDEX. 1305 IKEFEEENCES AEE TO PAGES.] OATH— Cont'd. answer of officers and agents of corporation under, 67. to answer of two or more, 334, 346. waiver of, In answer, see "Answer"; "Evidence." statutory provisions for, 661-663. as to one defendant, 333. eHect of answer as evidence, 662. by bill of discovery, 868, 869. replication waives, to answer, 333. amendment to bill waiving after answer to original bill put in under, 662. bill dismissed after answer under, effect of answer as evidence on new bill filed, 662. evidence to overcome answer under, 669. See "Answer"; "Evi- dence." in United States courts, equity rule 91, p. 1088. affirmation in lieu of, equity rule 91, 1088. form of oath to bill, 119. form of oath to affidavit, 464. form of oath of illiterate person to answer, 335. form of oath of foreigner to answer, 334, 335. form of order to take answer without oath, 335. see "Verification"; "Affidavit"; "Jurat." OBJECT OP SUIT, parties having interest in, 34-36. multifariousness in bill having single, 151. joinder of parties having single, 148, 149, 151. see "Parties"; "Joinder of Parties"; "Misjoinder of Parties"; "Multifariousness"; "Common Interests"; "Interest"; "Sub- ject-Matter." OFFER TO DO EQUITY IN BILL, 127. in bill to relieve from forfeiture for rent, 127. in bill to enjoin collection of taxes, 128. in bill to set aside tax sale, 127. in bill for rescission by vendor, 127. in bill for discovery of usury, 128. in bill for relief against usury, 128. OFFICERS OF CORPORATION (see "Corporation"). ORDERS, definition of, 447. distinction from decree, 721. rules are orders, 447. special, 447. 1306 INDEX. [EEFBEENCES ABE TO PAGES.] ORDERS— Cont'd, common, 447. of course, 447. ex parte, 437, 447. setting aside, 437. consent, 447, 448. conclusive, 448. modification of, 456. not appealable, 449. see "Consent Decree." nisi, 453. when proper, 453. service of, 453. confirming master's report, 453. making absolute, 453, 454. nunc pro tunc, 451, 456. see "Nunc Pro Tunc Decree." to show cause, 453. See "Rule to Show Cause." irregular, 448, 455. disobedience of, 448, 455. void, 455, 456. disobedience of, 455, 456. erroneous, 455, 456. disobedience of, 455, 456. see "Contempt." granting leave to amend, 432. to answer after demurrer overruled, 266. to take answer without oath or signature, 334-336. for further answer, 371. appointing guardian ad litem, 221. appointing interpreter, 334, 348. appointing receiver, 490. granting injunction, 528, 529. overruling demurrer, 267. not final, 267. sustaining demurrer, 263-265. for plea to stand for answer, 313, 314. for payment of money into court, 396. to speed cause, 583, 584. for production of documents, 225-227, 399-406. for inspection of documents, 406. dissolving injunction, 544. of reference, 595, 596. See "Reference." frame of order, 449. title of, 449, 450. caption of, 449, 450. INDEX. 1307 [BEFEEENCES ABE TO PAGES. J ORDERS — Cont'd. recitals in, 450. ordering part, 450. reservation in, 766. signature of, 450. drafting order. Bacon's ordinances, 1050-1052. entry of record, 450, 451. time of entering, 535. service of, wlien necessary, 451, 452. to bring party into contempt, 550. time of, 453. of nisi order, 453. on solicitor, 452. substituted, 452. affidavit of, 454. modification of, 456. of consent order, 448. amendment of, 456. of interlocutory order, 456. interlocutory, may be modified or vacated at hearing, 70S. vacating, 456. interlocutory order at hearing, 456. opening, 455, 456. setting aside ex parte order, 437. rehearing of, 782. varying on petition. Bacon's ordinance, 1057. enforcement of, 454. disobedience of, contempt, 454. erroneous order, 455. void order, 455. service of order to bring into contempt, 551. personal service to bring into contempt, 452, 454. knowledge of service on solicitor, 453. see "Contempt." waiver of irregularities in, 455. by judge off of bench, 449. by judge in chambers, 449. appealable, 800. See "Appeal." in United States courts, equity rule 1, p. 1062. form of order granting leave to amend, 432, 433. form of order to abide event of another suit, 477. form of order allowing plea, 312. form of order to take answer without oath or signature, 335. form of order that cause stand over to add parties, 701. form of order that cause stand over for proofs, 702. form of order of confirmation of master's report, 625. form of order for consolidation of causes, 476. 1308 INDEX. [EEFEEENCES AEE to PA6ES.J ORDERS— Cont'd. form of order dismissing Mil on sustaining demurrer, 265. form of order dismissing bill at hearing, 715. form of order for election, 392. form of order expunging scandal and impertinence on master's re- port, 370. form of order expunging scandal and impertinence on submission to exceptions, 371. form of order appointing guardian ad litem, 222. form of order appointing interpreter, 335. form of order appointing receiver in partnership bill, 490. form of order appointing receiver in foreclosure, 492. form of order changing receivers, 498. form of order discharging receiver, 499. form of order granting leave to file supplemental bill, 908. form of order granting leave to file bill of review, 996. form of order granting leave to file bill of review (by appellate court), 997. form of order for hearing original and cross bills together, 970. form of order staying original bill on filing cross bill, 969. form of order for feigned issue, 632. form of order for settling issue, 632. form of order retaining bill with liberty to bring action, 716. form of order for further answer, 369. form of order for further answer on submission to exceptions, 370. form of order for further answer on master's report, 369. form of order opening pro confesso, 206. form of order overruling demurrer, 268. form of order sustaining demurrer, 265. form of order overruling plea, 315. form of order allowing plea, 312. form of order for payment of money into court, 398. form of order for production of documents by complainant, 406. form of order for production of documents by defendant, 404. form of order for injunction, 529. form of order for ne exeat, 507. form of order of revivor, 936, 937. form of order to revive, on answer consenting to revivor, 937. form of order to revive, on complainant's neglecting to obtain or- der to revive, 937. form of order to plead or demur to bill of revivor, 936. form of order of reference. In general, 596. form of order of reference to state account, 597. form of order of reference as to alimony, 597. form of order of reference of plea, 319. form of order of reference of exceptions, 368. INDEX. 1309 [BEFEKENOES ABE TO PAGES.] ORDERS— Cont'd. form of order of reference in Interpleader, 825. form of reservation in order, 766. see "Decree"; "Consent Decree"; "Contempt"; "Forms." ORDER PRO CONFESSO, is interlocutory, 192. necessity of, 192. on amended bill, 204. on same day as amendment, 204. against infants, 198. against persons under disability, 198. effect of, 192, 193. admits facts well pleaded, 196. reference after, 194. bearing after, 192, 698. decree after, 192. not of course, 192. opening, 198. discretionary with court, 203. grounds for, 198, 199. in case of negligence, 199. for surprise, 199, 200. proceedings to open, 200-202. time of, 199. affidavits, 201, 202. affidavit of co-defendant, 202. counter affidavits, 202. showing of defense, 201, 202. presenting answer, 201, 202. imposing conditions on, 200. effect of, 203, 204. demurrer after, 203, 204. defense of bankruptcy after, 200. defense of statute of limitations after, 200. defense of usury after, 200. amending bill after, 205. statutory provisions for, 205. setting aside, 194. amending bill vacates, 204. supplemental bill vacates, 204. in United States court, equity rules 18, 19, 34, pp. 199, 1066, 1071. forms of orders pro confesso, 195, 196. form of affidavit to open, 206. form of order opening, 206. see "Pro Confesso"; "Decree Pro Confesso"; "Decree"; "Refer- ence"; "Notice"; "Hearing"; "Rehearing"; "Bill of Review." 1310 INDEX. [bepebencbs aee to pages.] ORDINANCES OF LORD CHANCELLOR BACON, 1045-1061. ORB TENUS DEMURRER, 239. when proper, 240. office, 239, 240. coextensive with demurrer on record, 240. for new grounds only, 240. for nonjoinder of parties, 240. for misjoinder of parties, 240. .for want of equity, 240. to whole bill, 240. to part of bill, 240. after plea overruled, 240. costs of, 241. see "Demurrer." ORIGINAL BILLS, classification of, 93, 94. see "Bills"; "Bills not Original"; "Bills in Nature of Original Bills." ■ OUTLAWRY, capacity of outlaw to sue, 15. plea of, 290. P. PAIS, MATTERS IN, 284-28& (see "Plea"). PARENTS (see "Infant"; "Next Friend"; "Guardian Ad Litem"; "Service"). PARTIES, at common law, 4, 34. distinction from rule at common law, 34. general rule as to, 35. rule not capable of positive statement, 36. all persons interested in subject-matter, 35. all persons interested in object, 35. classification of, 57-60. indispensable, 57-62. necessary, 57-61. proper, 58-62. formal, 57. nominal, in United States courts, equity rule 54, p. 1076. interest of parties, 34-37. joinder of all persons having, 35. INDEX. 1311 [kefekences aee to pages.] PARTIES— Cont'd. persons not having, 36. in subject-matter, 35, 61, 62, 79. in object, 35. in whole subject-matter unnecessary, 61, 62. in part of subject-matter, 61, 62. in all matters unnecessary, 62. general, 38, 42, 45-47. common, 38, 42, 45-47. small, 38, 47. possible, 49. must appear, 62. real party in, see "Real Party in Interest." desire in relation to subject-matter not sufiBcient to make, 61. agent, 63. agents of corporation, see "Corporations." aliens, see "Alien." assignee, see "Assignee"; "Assignment"; "Purchaser"; "Purchaser Pendente Lite"; "Supplemental Bill"; "Bill in Nature of Supple- mental Bill." assignor, see "Assignor"; "Assignment." attorney general, see "Attorney General." attorneys, see "Attorneys." auctioneer, see "Auctioneers." in autre droit, see "Autre Droit." bankrupts, see "Bankrupt"; "Bankruptcy"; "Trustee in Bank- ruptcy"; "Bill in Nature of Supplemental Bill." beneficially interested persons, 63. bondholders, 51, 52. cestuis que trustent, 51, 52. in United States courts, equity rule 49, p. 1075. citizenship of, see "Citizenship." corporation, see "Corporation." creditors, 42, 54. custodian of funds, 60. distributee, see "Distributee." foreign committee, see "Committee." foreign administrator, see "Foreign Executor." foreign executor, see "Foreign Executor." foreign conservator, see "Foreign Conservator." foreign corporation, see "Foreign Corporation." foreign guardian, see "Foreign Guardian." foreign sovereign, see "Sovereign." government, see "Government." guarantor, 62. heir, see "Heir." 1312 INDEX. [befeeenoes aee to pages.] PARTIES— Cont'd. husband, see "Husband and Wife"; "Married Woman." idiot, see "Idiot." infant, see "Infant." insane person, see "Lunatic." insolvent, see "Insolvent"; "Insolvency"; "Trustee in Insolvency." intervenor, see "Intervention." life tenant, 50, 51, 53, 54. lunatic, see "Lunatic." married woman, see "Married Woman"; "Husband and Wife." officer of corporation, see "Corporations." owners of land derived from common source, 73. partners, see "Partners"; "Partnership." purchaser, see "Assignee"; "Purchaser." purchaser pendente lite, see "Purchaser Pendente Lite"; "Pur- chase Pendente Lite"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill." receiver, see "Receiver." relator, see "Information"; "Relator." remainderman, 50, 51, 53, 54. sheriff, 60. solicitor, see "Attorney"; "Solicitor." sovereign, see "Sovereign." stakeholder, 65. See "Interpleader, Bill of." state, see "State." steward, 65, 66. trustee in bankruptcy, see "Bankrupt"; "Bankruptcy"; "Trustee in Bankruptcy." trustee in insolvency, see "Insolvent"; "Insolvency"; "Trustee in Insolvency." trustees, 51, 52. See "Trustee." in United States courts, equity rule 50, p. 1075. unknown persons, 38, 40, 41. unknown owners, 41. vendee, 71. voluntary association, 38-45. witness, see "Witness." In bill for account, see "Account." in bill against churches, 40, 41. in bill In behalf of or against class, see "Class"; "Joinder of Par- ties"; "Common Interests"; "Interest"; "Misjoinder of Parties"; "Multifariousness" ; "Representation." in bill for cancellation, 61. in consolidated causes, 475. in bill relating to fraud, 67-69. in bill to set aside fraudulent conveyances, 67. INDE5X. 1313 [befeeences aee to pages.] PAKTIES— Cont'd. in bill to enforce indemnity, 62. in bill to impeach judgment, 60. in bill to enjoin nuisance, see "Nuisance." in partition suit, 54, 80, 81. in bill for reconveyance of land, 61. in bill to redeem, 60, 62. in bill for rescission, 37, 61. in bill by taxpayer, 51. in bill to recover trust property, 51. in bill for construction of will, 53. in informations, 90, 92. persons beneficially interested, 63. owner of legal title, 62. owner of equitable rights, see "Equitable Rights." owner of equitable interests, see "Equitable Interest." dispensing with, numerous persons, 38, 40-47. in United States courts, equity rule 48, p. 1075. persons out of jurisdiction, 38-40, 58-60. United States equity rule 47, p. 1074. persons with interests created to oust jurisdiction, 38, 48, 58. United States equity rule 47, p. 1074. personal representatives not in existence, 37, 40. persons not in esse, 49. persons disclaiming interest, 38, 48. persons coming in under decree, 736. decree dispensing with, 47, 48, 58, 59. representation of persons not parties, see "Representation." privity among parties, 45. See "Privity." description of, in bill, 102, 103, 124. should be named in prayer for process, 75, 111, 112. position on record, 74, 75, 85, 86, 130. same person on both sides of record, 86. transposing to other side of record, 86. refusing to join as complainant, 74. new parties, see "New Parties"; "Joinder of Parties"; "Nonjoinder of Parties"; "Supplemental Bill"; "Bill in Nature of Supple- mental Bill"; "Bill of Revivor"; "Bill of Revivor and Supple- ment"; "Bill in Nature of Bill of Revivor"; "Bill in Nature of Bill of Revivor and Supplement"; "Amendment of Bill"; "Hear- ing." privilege from process, 179. See "Privilege from Process." in United States courts, equity rules 47-53, pp. 1074-1076. numerous parties, equity rule 48, p. 1075. Equity — 83. 1314 INDEX. [BEPEBENCES ABE TO PAGES.] PARTIES— Cont'd. omitting parties, equity rule 47, p. 1074. saving rights of absent parties, equity rule 53, p. 1076. in suit to execute trust in will, equity rule 50, p. 1075. omission of cestui que trust, equity rule 49, p. 1075. in suit on joint and several demands, equity rule 51, p. 1075. hearing when answer suggests defect of parties, equity rule 52, p. 1075. see "Nonjoinder of Parties"; "Misjoinder of Parties"; "Multifariousness"; "Joinder of Parties"; "Common In- terests"; "Interest"; "Complainants"; "Defendants." for parties to the respective bills, see titles of such bills. PARTITION, life tenant as party, 54. remainderman as party, 54. cross bill in, 951. PARTNERS, bill for account between, 38, 39. parties to, 61. retired partner as party, 61. personal representative as party, 61. parties to bill by, to rescind stock subscriptions, 72, 73. answer of one partner as evidence against another, 664. payment of money into court by, 396. see "Partnership"; "Co-Defendants"; "Evidence." PARTNERSHIP, bill for account, 38, 39, 61. production of documents before answer, 227. production of papers of, 227, 406. affidavit of noncollusion to bill of interpleader by, 821. payment into court of money in hands of, 395. receiver of, 481, 482. form of bill for account and receiver for, 484-486. form of order appointing receiver of, 490. form of interlocutory decree for accounting, 743. form of final decree in suit for accounting, 744. see "Partners." PARTS OF BILL, 96, 101, 113 (see "Bill"). PATENTS, multifariousness in bill attacking several, 144. answer in suit relating to, 329. bill in nature of supplemental bill by assignee of, 1029, 1030. INDEX. 1315 [refeeencbs aek to fades.] PAUPER (see "Forma Pauperis"). PAYING MONEY INTO COURT, by nominal party, 394. by public ofBcer, 394. by banker, 395. by partner, 396. by purchasers, 394, 395. by vendor, 394, 395. by third persons, 397. by trustee, 394. by executor, 394, 396. in interpleader, 818, 822. See "Interpleader, Bill of." in ne exeat to procure discharge, 510. See "Ne Exeat." of money in hands of partnership, 395. complainant must be solely entitled, 395. where complainant jointly entitled, 395. where probability of balance due defendant, 394. without authority of court, 397. application for, motion, 393, 396. petition, 393, 396. time of making, 393, 394. in case of fraud, 394. foundation for, affidavit, 393. affidavit after answer, 396. admission in answer or on examination, 393, 395. parol admission insufficient, 393. admission entitling to decree, insufficient, 395. order for, 396. part of claim, 394. principal only, 396. when interest, 396. where larger sum due than admitted, 396. withdrawal of, 397. disbursement of fund, 397. on decretal order, 722, 723. bill by stranger to reach fund, 397. petition by stranger to reach fund, 397. custodian of fund as party to bill, to reach, 397. form of order for payment of money into court, 398. see "Fund in Court"; "Interpleader, Bill of"; "Bill of Review." PEACE, BILL OF (see "Bill of Peace"). 1316 INDEX. [bepeeences abb to pages.] PENALTY, ; bill of discovery exposing to, 861, 864. bill for discovery and relief, 857, 858. interrogatory exposing to, 251. does not oust jurisdiction, 252. demurrer to bill for, 244, 251. ansTfer to bill exposing to, 876. answer to matter exposing to, 321. answer where admissions inadmissible in criminal prosecution, 321. objection to personal, 251. waiver of objection to, 251. waiver of, in bill to perpetuate testimony, 840, 842. equity will not enforce, 251. f exceptions, 251. see "Demurrer"; "Plea"; "Answer"; "Bill of Discovery"; "Evidence"; "Forfeiture." PENDENCY OP ANOTHER SUIT (see "Another Suit Pending"; "Elec- tion, Putting Complainant to"). PENDENTE LITE (see "Purchase Pendente Lite"; "Purchaser Pen- dente Lite"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill"). PENNSYLVANIA, equity in, 9. PERFORMANCE, allegation of, in bill, 126, 127. demand of, before contempt proceedings, 551. Bacon's ordinance concerning, 1045. of decree, see "Decree"; "Bill of Review"; "Bill in Nature of Bill of Review"; "Supplemental Bill in Nature of Bill of Review." PERJURY, in affidavit, 460, 463. impeaching decree founded on, 1007. showing of, on petition for rehearing, 796. PERPETUAL INJUNCTION (see "Injunction"). PERPETUATION OF TESTIMONY, BILL FOR, Is original bill, 93. definition of, 838. distinction from bill de bene esse, 850. office of, 838. grounds of, 839, 840. « INDEX. 1317 [rkfekencbs are to pages. I PERPETUATION OF TESTIMONY, BILL FOR— Cont'd, interest of complainant to maintain, 838, 839. interest of defendant, 839. to protect trivial right, 839. where no impediment to action at law, 839. who may maintain, hy lunatic, 838. hy devisee, 839, 840. hy reversioner, 839. by remainderman, 839. by tenant in tail, 839. by person having expectancy, 839. necessity of possession, 840. not favored, 841. frame of bill, 841. requisites of, 841. statement of complainant's title, 841. statement of evidence, 841. statement of names of witnesses, 842. certainty in, 841. multifariousness in, 842. need not waive penalty, 842. setting forth will in haec verba, 841. prayer of, 842. verification of, 117, 843. amendment of bill, 842, 843. time to file, 839. process on, 845. appearance on, 845. defenses to, 845. demurrer to, 845. seldom lies, 841. plea to, 845. by purchaser for value, 845, 846. answer to, 846. evidence, 847. commission to examine witnesses, 846. examination of witnesses, 847. cross-examination, 847. filing testimony, 847. publication of testimony, 847. application for, 847. costs of defendant, 847. hearing on, 846. dismissal, 846. taking testimony de bene esse on, 678. 1318 INDEX. [EEFEEENCES ABE TO PAGES.] PERPETUATION OF TESTIMONY, BILL FOR— Cont'd, statutory substitutes for, 848. Bacon's ordinance, 1056. form of bill, 843. see "Bill De Bene Esse." PERSON, of complainant, see "Complainants"; "Demurrer"; "Plea." of defendant, see "Defendants"; "Demurrer"; "Plea." PERSONAL DECREE (see "Decree"; "Nonresident"; "Absent Parties"; "Constructive Service"). PERSONAL REPRESENTATIVES, suit by or against self individually, 86. see "Executor"; "Administrator." PERSONAL AND REPRESENTATIVE CAPACITIES, bill in both, 149. complainant in, 149. defendant in, 153. PETITION, definition of, 435, 444. office of, 444. distinction from motion, 435, 444. for leave to amend, 427. to make self party, 77, 894-897. for payment of money into court, 393, 396. to open pro confesso, 201. for receiver, 488. against receiver, 497. for leave to foreign receiver to sue, 29. for guardian ad litem, 221. for ne exeat, 503. to discharge ne exeat, 510, 511. to impeach decree, 1005. Bacon's ordinance concerning, 1057. for correction of decree, 754. under decree reserving liberty to apply, 724. for rehearing, see "Rehearing." of appeal, see "Appeal." intervening, see "Intervention." who may file, 444. stranger, 444. purchaser, 438. frame of petition, 444. INDEX. 1319 [REFEBENCES ABE TO PAGES.] PETITION— Cont'd. title of, 444. scandal and impertinence in, 445. prayer of, 445. verification of, 445. signature of, 445. time of filing, 444. leave to file, 445, 446. notice of, 445. service of, 445. objections to, 445. demurrer to, 445. answer to, 446. verification of, 446. motion to dismiss, 445. dismissal of, 445, 446. hearing on, 446. affidavits in support of, 457. order on, 446. form of petition for leave to amend, 428, 429. form of petition for guardian ad litem, 221. form of petition for rehearing, 790. form of petition for leave to file supplemental bill, 908. PLAINTIFF (see "Complainants"). PLEADING IN EQUITY, definition of, 87. origin of, 88. liberality in, 88. names of, 89. construction of, 88, 89. See "Construction of Pleadings." certainty in, 88. See "Certainty." jurisdiction dependent on, 87. See titles of the various pleadings. PLEADINGS, as necessary as proofs, 650. decree must be founded on, 650, 732-734. variance with proof, 650. recitals of, in decree, 739. drawing of. Bacon's ordinance, 1050-1052. PLEA, definition of, 270. nature of, 229, 270. distinction from answer, 270. 1320 INDEX. [REFERENCES ARE TO PAGES.] PLEA— Cont'd. office of, 229, 270. reduces cause to single point, 271, 272, 277. to plead variety of circumstances, 271. variety of circumstances tending to single point, 271. classes of, 271, 288. in abatement, 289. in bar, 289, 296. dilatory, 289. declinatory, 289. peremptory, 289. affirmative, 271, 272. negative, 272, 273. when applicable, 273. answer in support of, 273, 278. pure, 271, 272. reduces cause to single point, 272, 277. founded on new matter, 272. must follow bill, 272. averments in, 272. must be complete defense, 272. impure, 272, 273. not pure, 272, 273. anomalous, 272, 274. wlien applicable, 274. effectual against original equity, 274. ineffectual against matter of avoidance, 274. answer in support of, 275, 278. defenses proper by, 229, 270, 289. not to equity of bill, 233, 270. for defective service of process, 290. to person, 289, 290. popish recusant convict, 290. excommunication, 290. outlawry, 290. coverture, 290. Idiocy, 290. infancy, 290. lunacy, 290. attainder, 290. to person of complainant, 290. to person of defendant, 290, 291. to character of complainant, 290. to character of defendant, 290. to character of executor, 291. to character of administrator, 291. INDEX. 1321 [befekences are to pages.] PLEA— Cont'd. to citizenship of parties, 282. to jurisdiction, 289, 290, 586. not in jurisdiction of any court, 289. not in jurisdiction of court of equity, 290. in otlier court of equity, 290. in otlier court, 290. for want of parties, 81, 82, 284. must point out proper parties, 284. for multifariousness, 153, 154, 296. for multiplicity of suits, 296. of matter in pais, 285, 301. of statute of frauds, 297. laches, 306. statute of limitations, 282, 285, 296. release, 271, 272, 274, 280, 301. purchaser for valuable consideration, 304. See "Purchaser for Value." statute, 299. stated account, 302. settled account, 271, 272, 302. another suit pending, 292. See "Another Suit Pending"; "Elec- tion, Putting Complainant to." title in defendant, 305. award, 303. bare title, 305. will, 306. matters of record, 285, 299. former judgment, 299. former decree, 300. res judicata, 299, 300. matter as of record, 300. decree of foreign court, 300. decree of other court of equity, 300. decree of former dismissal, 300. of record, defendant must show record before argument, 310. for want of leave to sue receiver, 26. to relief, 284, 289. by volunteer, 305. ^ denying excuse for nonjoinder of parties, 82. in United States courts, equity rule 32, pp. 1070, 1071. Bacon's ordinance, 1054. frame of plea, 283, 284, 291. title, 283. must be complete defense, 235. covering too much, 276. 1322 INDEX. [REFERENCES ABE TO PAGES.] PLEA— Cont'd. must tie positive, 275. must not be argumentative, 275. strictness in, 276. good in part, 276. impertinence in, 232. allegations as to acts of third person, 275. protestation in, 283. conclusion of, 284. verification of, 284-286. where answer under oath waived, 285. in United States courts, equity rule 31, p. 1070. signature, 284, 286. certificate of counsel, 286. United Slates equity rule 31, p. 1070. answer in support of plea, office of, 274, 275, 278, 280-282, 297. is no part of defense, 274, 279, 280. to plea to relief, 284. to plea to hill charging fraud, 279, 280, 303, 304. where answer under oath waived, 285. frame of, 284. can raise no question not raised by plea, 282. insufficiency of, 310. allegations in, 282. on information and belief, 282. use of, on hearing, 279, 280. use of, on argument, 279, 280. use of, as evidence for complainant, 279, 280. joinder with other defenses, 230, 275. must state part of bill to which applicable, 283. incorporating in answer, 231. matter of, in answer, 323. several pleas, 277. election of one, 278. to different parts of bill, 277. leave to file, 277, 278. duplicity, 276. plea of two judgments, 301. filing, 307, 308. under rule to answer, 307. time to file, 307, 308. order of filing, 289. after demurrer overruled, 267. after demurrer ore tenus, 240. after answer to original bill, 307. striking from files, 309. INDEX. 1323 [KEFEKEKOES AEE TO PAGES.] PLEA— Cont'd. sufiaciency, how tested, 309. demurrer to, improper, 309. validity decided by stating part of bill, 105. setting down for argument, 309. in United States courts, equity rule 33, p. 1071. argument, 309. allegations of bill on, 310. allegations of plea on, 310. answer in support of plea on, 279, 280. right to open and close, 711. answer to original bill read on argument of plea to amended bill, 310. hearing on, 316. Bacon's ordinance concerning, 1054. before answer, 231, 232. allowance at, 316. bill dismissed, 316. proof of truth of facts by defendant, 308. overruled as false, 316. allowance of, 311,'316. effect of, 312. overruling, 310, 314. decree on overruling, 315, 316. saving benefit of, to hearing, 312. replication to, 308. after allowance on argument, 311. failure to file, 311. issue on, 310. standing for answer, 275, 313. exceptions to, 313. abiding by, 315. abandonment of, 283. withdrawal of, 308. reference of, 311, 315. order of reference, 315. amendment of, 307, 424. See "Amendment of Pleas." answer after, overruled, 314, 315, 356. same defense by answer, 325. interrogatories to defendant after overruled, 316. relief after overruled, 316. overrules demurrer, 236. overruled by answer, 275, 282. pro confesso while on file, 186. dismissal for want of prosecution pending, 583, 584. to amended bill, 306. 1324 INDEX. [KEFEBENOBS AKE TO PAGES.] PLEA— Cont'd. bill amended after, 307. motion for election before argument of, 391. exceptions after plea to part of bill overruled, 357. successive pleas, 289. as evidence, 656. matter subsequent to filing plea by cross bill, 276. puis darrein continuance, cross bill in nature of, 949, 951, 952. in United States courts, equity rules 31-33, pp. 1070, 1071. form of plea, 286. form of plea to part of bill, 287. form of plea supported by answer, 287. form of order overruling plea, 315. form of order allowing plea, 312. form of order that plea stand for answer, 314. form of order of reference of plea, 315. POLITICAL, QUESTIONS, demurrer for want of jurisdiction over, 244, 245. plea for want of jurisdiction over, 290, 291. PRACTICE, definition of, 87. judicial notice of, 137. in United States circuit court, 12, 13. in United States courts, uniform throughout United States, 13. in United States courts, how regulated, equity rule 90, p. 1088. PRAYER FOR PROCESS, against administrator, 112. against executor, 112. against parties in representative capacity, 112. against absent parties, 37, 38, 113. against corporation, 113. distringas against, 113. against peer in England, 113. letter missive, 113. against state, 113. necessity of naming parties in, 75, 111, 112. prayer for injunction in, 112, 514, 520, 521. for temporary injunction, 112, 113. for preliminary injunction, 515. prayer for ne exeat, 114, 503. demurrer for want of. 111. form of, 101, 114. see "Process"; "Injunctions"; "Ne Exeat"; and titles of the various bills. INDEX. 1325 [EEFEEENCES AEE TO PAGES.] PRAYER FOR RELIEF, in t)ill for charity, 109. in bill by infant, 109. in bill for discovery, 866-869. adding by amendment, 870, 871. in bill with double aspect, 140. in bill against corporation, making officers parties for discovery, 68. of alternative relief, 110, 139-141. of disjunctive relief, 110. causing multifariousness, 146. relief under, 735. for general relief, 109-111. relief grantable, 110, 111, 735. for special relief, 109-111. relief grantable. 111, 735. for preliminary injunction. 111, 514, 515, 520. for ne exeat. 111, 503. for receiver, 484. amendment of, 419. of petition, 445. in United States courts, equity rules 21-23, pp. 1067, 1068. form of, 100, 101. see "Relief"; "General Relief"; "Special Relief"; "Injunc- tions"; "Ne Exeat"; "Receivers"; "Alternative Relief"; "Double Aspect." PREJUDICE, DISMISSAL OF BILL WITHOUT (see "Dismissal of Bill"; "Res Judicata"). PREMATURE SUIT, demurrer to bill, 234. PREMISES (see "Bill"; "Stating Part of Bill"). PRETENSES, demurrer when facts stated by way of, 234. see "Charging Part of Bill." PRISONER, service of process on, 166. PRIVILEGE FROM PROCESS, ambassadors, 178. congressmen, 179. consuls, 178. judges, 178. legislators, 178. 1326 INDEX. [EEFEEENOES AEE TO PAGES.] PRIVILEGE FROM PROCESS— Cont'd, parties, 179. witnesses, 179, 180, 691. violation of, 180. Bacon's ordinance concerning, 1058. see "Process"; "Service." PRIVITY, in estate, 1024, 1025. in representation, 1024, 1025. in deed, 1024, 1025. among numerous parties, 45. joinder of parties not in, 71, 76. of defendants in interpleader, 813. of parties to bill of discovery, 878. of parties to bill of revivor, 1024, 1025. of parties to bill in nature of bill of revivor, 1024, 1025. between corporation and stockholder, 55. bill in other suit as evidence in case of, 655. answer as evidence against co-defendant in case of, 663-665. answer as evidence for co-defendant in case of, 665, 666. form of demurrer for want of, 256. see "Bill of Revivor"; "Bill in Nature of Bill of Revivor" "Parties." PROCEDURE, divisions of, 87. at law, 4, 5. in equity, 4, 5. PRO CONPESSO, definition of, 185. . service of process necessary before, 185-187. appearance formerly necessary before, 181-183, 185. proof of regularity before, 187, 188. rule to answer before, 187. while plea on file, 185, 186. while answer on file, 185, 186. on demurrer overruled, 266. on exceptions sustained, 186. on exceptions not answered, 368. to part of bill, 186. waives exceptions, 365. effect of, against co-defendant, 191. defense by co-defendant, 191. See "Co-Defendants." proof of bill after, 188, 190. INDEX. 1327 [REFEBENCES ABE TO PAGES.] PRO CONFESSO— Cont'd. discretionary with court, 189. destroying bill, 190. cross-examination by defendant, 190. reference after, 190. notice to defendant, of proceedings on, 190. bearing after, 698, 726. bill must sustain decree, 188. on cross bill, 186, 187. as evidence, 656. on bill of Interpleader, 823. on bill of review, 998. statutory regulation of, 185. in United States courts, 185. equity rules IS, 19, 34, pp. 1066, 1067, 1071. order pro confesso, see "Order Pro Confesso." decree pro confesso, see "Decree Pro Confesso." see "Decree." PROCESS, to compel appearance under English practice, 180-184. writ of sequestration, 181. writ of attachment, 181. arrest under, 181. attachment with proclamation, 181. writ of rebellion, 181. against corporation under English practice, 183. statutory changes, 182. against state, 113. against foreign corporation, agent to accept service, 30. cannot run out of jurisdiction, 171. ' returnable when, 161, 162. service of, 162. See "Service." return of, 172. See "Return." exemption from, 178. See "Privilege from Process." prayer for, in bill, see "Prayer for Process." appearance to object to, 210. amendment of bill after, 204. extraordinary. Bacon's ordinance, 1057, 1058. in United States courts, equity rules 1, 7, 9-16, pp. 1062-1066. see "Subpoena"; "Summons"; "Constructive Service"; "Substituted Service." PROCHEIN AMI (see "Next Friend"). PROCLAMATIONS, ATTACHMENT WITH, 181. 1328 INDEX. [eefekences ake to pages.] PRODUCTION OP DOCUMENTS, by complainant, 405. by defendant, 399, 400. by co-defendant, 406. of documents in custody of agent, 403. in defendant's possession, 403. in defendant's power, 403. in foreign country, 403. "Withheld by defendant, 400. interest in documents, 403. complainant must have, 401. jointly owned, 403. belonging to partnership, 227, 405. common, 403. relating to defendant's title, 400-403. of forged documents, 225-227. of fraudulent documents, 399. of executors' accounts, 227. before answer, 225-227. after answer, 399-401. prior to hearing, 399, 400. principle on which ordered, 399. when answer under oath waived, 403, 404. foundation for application, on admission by defendant, 400. on admission in answer, 400-402. amending bill to obtain admission, 401. reference in answer, 402. offer by defendant for inspection, 401, 402. application for, motion for, by defendant, 225, 227. motion for, on admission of defendant, 400. petition for, on admission of defendant, 400. requisites of, 399, 400. in nature of exception to answer, 403, 404. staying suit on refusal of complainant to produce, 405. form of petition for, 404. form of order for production by complainant, 406. form of order for production by defendant, 404. see "Inspection of Documents"; "Documents"; "Bill of Dis- covery." PROFESSIONAL, CONFIDENCE, bill of discovery in violation of, 861, 862. demurrer to bill in violation of, 861, 862, 876. plea to bill in violation of, 879. answer to bill in violation of, 876. INDEX. 1329 [BEFEBENOES ABE TO PAGES.] PRO INTERESSE SUO, examination of claimants against receiver, 497. PROLIXITY, Bacon's ordinance concerning, 1053. see "Scandal and Impertinence." PROOFS, object of, in chancery, 673. metbod of taking, in absence of statute, 673-676. facts to be proved, 649. facts judicially noticed, 652. admissions, 649. admissions in answer, 652. admissions in bill, 653. admissions of complainant, 649. allegations of bill not denied, 342, 649. matter in avoidance in answer, 649, 652. J where replication not filed, 649. publication of, 674, 707. passing publication of, 674, 675, 707-711. additional, after publication, 675, 676. burden of, 651, 667. equally balanced, 652. weight of, 652. cause standing over for, 701. form of order for, 702. amending bill to conform to, 416, 427, 428. broader than bill, 122. upon bill pro confesso, 188-190, 196. destroying bill, 190. sufficiency of, 196. of plea, 308. see "Evidence"; "Hearing"; and titles of the various bills. PROPER PARTIES, definition of, 58. illustrations of, 61. PROPER PERSON, conducting suit in, 157. appearance in, 213, 214, 224. PROTESTATION, in demurrer, 238, 253. in plea, 283. Equity — 84. 1330 INDEX. [EEFEEElSrCES ARE TO PAGES.] PUBLICATION, 674. passing, 674, 675. enlarging time for, 709. additional evidence after passing, 674-676, 707-711. application to take additional evidence after, 676. in United States courts, equity rules 68, 69, pp. 1082, 1083. see "Proof." PUIS DARREIN CONTINUANCE (see "Cross Bill"; "Answer"; "Plea"). PURCHASER, as party, 61, 62. as party to bill for account against vendor, 61. as party to bill to redeem, 62. i bill in nature of bill of interpleader by, 832. motion by, 438. petition by, 438. payment into court by, 394, 395. see "Purchase Pendente Lite"; "Purchaser Pendente Lite"; "Assignor"; "Assignee"; "Assignment." PURCHASE PENDENTE LITE, alienor of whole interest cannot continue suit, 64. voluntary, eftect of, 896, 897. i option to make purchaser party, 64, 897. involuntary, 896. purchaser must be made party, 897. supplemental bill on, 896. bill in nature of supplemental bill on, 895, 1029. ; see "Supplemental Bill"; "Bill in Nature of Supplemental Bill." PURCHASER PENDENTE LITE, voluntary, option to make party, 63-65, 897. involuntary, necessity of making party, 63-65, 897. stands in place of alienor, 899. is bound by proceedings after alienation, 913. petition to make self party, 895, 896. bill to make self party, 77. supplemental bill to make self party, 64, 895-897. supplemental bill by, 894-897. bill in nature of supplemental bill by, 895, 1029. bill of revivor and supplement by, 942. bill in nature of bill of revivor and supplement by, 946, 947. cross bill by, 957. INDEX. 1331 [BEFEEENCKS ABE TO PAGES.] PURCHASER PENDENTE LITE— Cont'd, writ of assistance against, 760. see "Purchase Pendente Lite"; "Supplemental Bill"; "Bill in Nature of Supplemental Bill." PURCHASER FOR VALUE WITHOUT NOTICE, allegations necessary, in plea, 304. in answer, 326, 327. allegation of consideration in plea, 304. in answer, 327. allegation of payment of consideration, in plea, 304. in answer, 327. allegation of conveyance, in plea, 304. in answer, 327. allegation of possession, in plea, 304. in answer, 327. allegation of seisin, in plea, 304. in answer, 326, 327. denial of notice, in plea, 304. in answer, 327. plea of, 304. to bill to perpetuate testimony, 845, 846. to bill of review, 999. to bill charging fraud, 304. answer asserting, 321, 326. answer in support of plea, 304. see "Plea"; "Answer"; "Bill of Discovery." Q- QUASHING RETUHN, on motion, 175. aflBdavits in support of, 175. by plea in abatement, 177. R. REAL PARTY IN INTEREST, bill must be filed by, 62. agents, 63, 65. assignors and assignees, 62. 1333 INDEX [kefeeences abb to pages.] RE ARGUMENT (see "Argument"). REBELLION, WRIT OF, to compel appearance, 181. RECEIVERS, definition of, 479. jurisdiction to appoint, 480. purpose of appointment, 479. is auxiliary remedy, 479, 484. wliere adequate remedy at law, 480. causes for appointment, 479-482. where clear legal rigM, 480. of complainant's own property, 482. ot corporation, 481, 483. on creditors' bill, 481. of assets in hands of executor, 482. of property obtained by fraud, 480. of estate of idiot, 480. of estate of infant, 480. of estate of lunatic, 480. in foreclosure suit, 481. in aid of injunction, 496. in case of insolvency, 480, 481. where lien on property, 480. in partnership suits, 481, 482, 487. of special fund, 480. of property in the hands of trustee, 482. in case of waste, 482. who may be receiver, 482, 483. eligibility for appointment, 482, 483. competency of, 482, 483. creditor, 483. director of corporation, 483. attorney, 483. agent, 483. clerk of court, 483. next friend, 483. master in chancery, 483. stockholder, 483. recommendation by parties, 482, 483. bill for, requisites of, 484. must be filed, 479, 480. exceptions, 480. prayer of, 484. verification of, 118. INDEX. 1333 [EETEEENOES ARE TO PAGES.] RECEIVERS— Cont'd. time of appointment, 486. before answer, 487. after decree, 484, 48T. after appeal, 487. who may apply for, 479. next friend of lunatic, 23, 24. application for, 487. petition for, 488. motion for, 484, 487, 488. affidavit in support of, 484. notice of, 488, 489. without notice, 489. affidavit to dispense with notice, 489. ex parte application for, 489. renewal of, 493. rehearing of motion, 493. appointment, in discretion of court, 480, 482, 483. reference to inquire into propriety, 490. effect of, 479. order of, 490. void, 497. vacating order, 493. bond of receiver, 494. title and possession of receiver, 494-497. when title and authority vest, 494, 495. reduction of property to possession, 495. assistance of court to obtain possession, 496. interference with possession of, 496. unauthorized interference with, contempt, 496, 549. property out of jurisdiction, 496. See "Foreign Receiver." claims against receiver, 497. petition of claimant, 497. examination of claimant pro interesse suo, 497. is officer of court, 479. suits by, petition for leave to sue, 29. authority to sue, 25-27. leave to sue, 25-27. suit in what name, 25. suit against, 25, 26, 496. leave to receiver to defend, 27. leave to sue, 25, 26. effect of suing without leave, 25, 26. suing without leave, contempt, 25, 26, 496, 549. protection against, how invoked, 25, 26. 1334 INDEX. [BEFEEENOES AEB TO PAGES.] RECEIVERS— Cont'd. plea setting up want of leave, 26. against receiver of United States court, 26, 27. as party to suit, 483. as party to specific performance, 65. representation of creditors, 55-57. stockholders' request to sue, 27, 57. bill by, allegations of, 27. bill against, allegations of, 27. costs of, 774, 775. removal of receiver, 497. changing receivers, 497. discharging receivers, 497, 498. foreign receiver's right to sue and defend, 28, 29, 496. form of bill praying receiver, 484. form of motion for receiver, 488. form of notice of motion for receiver, 489. form of orders appointing receiver, 490, 493. form of order changing receiver, 498. form of order discharging receiver, 499. form of bond of receiver, 494. see "Foreign Receiver." t RECITALS, answer to facts stated by way of, 319. of appearance, 208, 20§. in orders, 450. in orders overcoming facts, 740. in decrees, 737, 738. in decree pro confesso, 194, 195. in judgment in contempt proceedings, 566, 567. see "Answer"; "Orders"; "Decree"; "Decree Pro Confesso.' RECORD, preserving evidence in, 738-742. preserving oral evidence in, 738-741. preserving documents proved at hearing, 741, 742. bill a part of, 739. answer a part of, 739. replication a part of, 739. master's report a part of, 739. exhibits a part of, 739. depositions a part of, 739, 740. stipulations a part of, 740. INDEX. 1335 [BEFERENCES ABE TO PAGES.] RECORD, MATTERS OF, plea of, 285, 299. defendant must show record before argument of, 310. see "Plea"; "Res Judicata." RECORDING DECREE, 748 (see "Enrollment"; "Decree"). REDEEM, BILL TO, parties to, 60, 62. in nature of bill of interpleader, 832. REDESDALE'S OPINION OF EQUITY, 2. REFERENCE, power to order, 594. on court's own motion, 596. on application of parties, 596. discretionary with court, 594. matters referred, whole cause, 594. to take accounts, 593-595, 597. to make computation. 593, 595. exceptions to answer, 366. scandal and impertinence in bill, 156, 224, 225. to inquire into appointment of receiver, 490. to inquire into issue of injunction, 522. to inquire whether suit for benefit of infant, 18-20. to inquire whether consent decree beneficial to infant, 724. plea of other suit pending, 295, 311, 315. on motion to elect, 390. to settle issue, 631. in interpleader, 829. in contempt proceedings, 565. to appoint trustee, 593. to take and report evidence, 603, 604. on bill pro confesso, 190. proceedings on, 194. notice to defendant of proceedings on, 190. how made, by final decree, 719. by decretal order, 722. order of, 595, 59'6. limits inquiry, 603. must not be more extensive than pleadings and proof, 596. taking testimony without, 596. entering nunc pro tunc, 596. 1336 INDEX. [KETEBENCBS ABE TO PAGES.] REFERENCE— Cont'd. instructions to master in, 596. master's failure to comply with, 596. void, 599. master cannot go behind, 603. objections to, 598. not open on exceptions, 624. acquiescence in, premature, 599. procedure on, in England, 601. Bacon's ordinance concerning, 1052, 1053. statutory provisions for, 602. in United States courts, 602. equity rules 73-84, pp. 1084-1087. irregularities in, how corrected, 618. state of facts under English practice, 601, 602. warrant on leaving, in English practice, 602. attendance before master, 599. who may attend, 599. executor, 599. on inquiry as to title, 599. parties, 599. quasi parties, 599. trustees, 599. refusal of master to permit, 600. petition to court, on refusal, 600. scope of inquiry, 603. evidence, how taken, 606. in United States courts, equity rule 81, p. 1086. time for taking, 608. extension of time for taking nunc pro tunc, 601. delay in taking, 601. further, after proofs closed, 608. affidavits as, 605. pleadings as, 604. depositions in other cause as, 605. rules as to same as in court, 604. admission of by master, 606. subject to objections, 607. exclusion by master, 605. certificate to court on, 605. confining to issues, 607. to change order of reference not admissible, 603. reduction to writing, 606. / witnesses before master, 605. INDEX. 1337 [REFERENCES ARE TO PAGES.] REFERENCE— Cont'd. enforcement of attendance, 605, 606. oatli to, 606. signature to deposition, 606. cross-examination by defendant in default, 190. advice by counsel to, 607. party as, 605. hearing before master, 600. notice of, 600. attendance on, 600. master must perform duties personally, 601. master must see and bear witnesses, 601. further after proof closed, 608. in United States courts, equity rules 74, 75, p. 1084. motion to instruct master pending, 604. motion to set aside, 599. dismissal by complainant after, 576. report of master on, see "Master's Report." re-reference, see "Re-reference." form of order of reference as to alimony, 597. form of order of reference to state account, 597. form of order of reference in interpleader, 831. form of order of reference of plea, 315. form of order of reference of exceptions, 368. form of order of reference on default, 596, 597. see "Master's Report"; "Master in Chancery." REHEARING, office of, 780. distinction from appeal, 798. distinction from reargument, 780, 781. lies only before enrollment, 780, 781. enrollment prevents, 749, 750. caveat to prevent enrollment, 799. who may apply for, 787. successful party, 787. person not party, 787. personal representatives, 797. decrees reheard, 782. invalid, 786. consent, 724. pro confesso, 194, 786. default, 786. for costs, 786. interlocutory, 782. not enrolled, 749. 1338 INDEX. [befeeences are to pages.] REHBAEING— Cont'd. decretal order, 782. on petition of complainant, 787. on petition of defendant, 787. on court's own motion, 786. grounds of, to correct material errors, 780. to correct judicial error, 754. to correct clerical error, unnecessary, 782. decisive question overlooked, 784. error of law, 785. statute or decision overlooked, 784. plain mistake or omission, 784. incapacity or negligence of counsel, 785. for new evidence, 783-785. considerations governing, 785. diligence in obtaining, 784, 785. of different kind, 785. cumulative, 784. to contradict witness, 785. must change result, 784. existing at time of decree, 783. procedure on, 784. petition for, 787. requisites of, 787, 788. statement of new matter, 788. statement of names of witnesses, 788. statement of subsequent orders, 788, 789. statement of evidence, 788. showing of diligence, 788. showing interest, 788. impropriety in frame, 789, 790. prayer of, 789. verification of, 789. certificate of counsel to, 789. requisites same as bill of review, 788. pleading filed as bill of review standing for, 788. filing, diligence in, 783. time of, 783. time of, in United States courts, 783. petition for leave to file, 792. does not stay decree, 793. staying time for appeal, 793. taking from files, 789, 790, 792. notice of presenting, 790. INDEX. 1339 [KETEKENOES ABE TO PAGES.] REHEARING — Cont'd, deposit on, 792. granting, discretionary with, court, 791, 796, 797. liberality in, 791. almost of course in England, 789. review of discretion, 791, 792. proceedings on, 793. hearing of, 792, 793. petitioner failing to appear, 793. ex parte, 793. reading pleadings and evidence, 793. evidence on, 794, 795. additional, 795. depositions taken before hearing, 795. proof of documents, 795. not on new issues, 796. issues on, 796. objections raised on, 794. for want of parties, 794. cause standing over to make new parties, 794. amendments on, 794. showing a witness convicted of perjury, 796. decree, how far opened, 794. parties heard on, 794. stay of proceedings on, 793. not of course, 793. special order necessary, 793. staying of time of appeal, 793. vacating order on filing, 793. one petition for rehearing several suits, 790. successive petitions, 796. dismissal of petition, 793. withdrawing petition, 792. filing with supplemental bill in nature of bill of review, 784, 1042. filing with bill in nature of bill of review, 1021. costs on, 796. in United States courts, 781. where appeal lies, 782. equity rule 88, p. 1088. form of petition for rehearing, 790. form of order to stay proceedings, 793. RELATOR, necessity of, 91. personal interests of, 91, 92. 1340 INDEX. [befeebnces are to pages.] RELATOR— Cont'd. substituting as complainant, 91, 92. see "Information"; "Information and Bill." RELEASE, fraud in obtaining, 302. answer asserting fraud in procuring, 415. amending bill to meet charge of fraud in procuring, 415. must be under seal, 302. pleading as settled account, wben not under seal, 302. plea of, 271, 272, 274, 280, 301. must allege consideration, 302. RELIEF, co-complainants must be entitled to, 70. name of bill not material to, 89. several Mnds of, in bill by several parties, 147. bill of discovery does not pray, 854, 856. after plea overruled, 316. demurrer to, 110. plea to, 284, 289. general, see "General Relief." special, see "Special Relief." alternative, see "Alternative Relief." prayer for, see "Prayer for Relief." REMAINDERMAN, representation of, by life tenant, 50, 53, 54. representation of, in partition suit, 54. bill of review by, 985. bill to execute decree by, 1017. REMEDY AT LAW, inadequacy of a cause of rise of equity, 8. see "Adequate Remedy at Law"; "Demurrer"; "Plea"; "Juris- diction"; "Want of Equity"; "Dismissal for Want of Equity." REMEMBRANCE (see "Allegations"; "Information and Belief"; "An- swer"). REMOVAL OF CAUSE TO UNITED STATES COURT, petition for, as appearance, 211. objections to jurisdiction after, 211. repleader after, 13, 14. practice after, 13. judicial notice of rules of state court after, 388. INDEX. 1341 [eefebences ake to pages.] REMOVAL OF RECEIVER (see "Receivers"). REOPENING CAUSE AFTER HEARING, 715. discretionary with court, 715. REPLICATION, definition of, 379. office of, 379. general, 106, 380. special, disused, 380. charging part of bill dispenses with, 106. amendment of bill as substitute for, 380. in United States courts, dispensed with, equity rule 45, p. 1074. Bacon's ordinances concerning, 1053-1055. time for filing, 381. in Illinois, 383. nunc pro tunc, 382. after exceptions, 361, 381. after exceptions for impertinence, 361. aftef hearing on bill and answer, 698. failure to file, 379, 381-383, 649. proof where not filed, 649. hearing on bill and answer, 381, 382. hearing on proofs without, 383. permission to file on terms, 382. permission to file nunc pro tunc, 382. to plea, 308, 380. effect of, 308, 380. admits plea to be good, 308, 380. after allowance on argument, 311. frame of, 309. to disclaimer, 376, 380. to answer, effect on, as evidence, 109, 379, 380, 653, 654. effect on admissions in; 379, 653, 654. to answer to bill of revivor, 935. to answer to bill of interpleader, 824, 827. to answer to supplemental bill, 912. signature of, 382. amending bill after, 381. by adding parties, 381. matters after filing bill, and before answer put in issue by, 415. withdrawal of, 381. waiver of, 383. amendment of, see "Amendment of Replication." filing is not speeding cause, 583. is part of record, 739. 1342 INDEX. [eefeeences aee to pages.] REPLICATION— Cont'd. in United States courts, equity rule 64, p. 1079. special abolislied, equity rule 45, p. 1074. form of, 383. see "Answer"; "Admissions"; "Evidence." REPRESENTATION, definition of, 49. cases to which applicahle, 50. must he suflacient, 41, 44. by administrators, 50, 52, 53. by assignee in insolvency, 54. by corporation, 51, 54, 55. by executor, 50, 52. by life tenant, 50, 53, 54. by personal representative, 50, 52, 53. by stockholders, 55-57. by trustee, 51, 52. by trustee in bankruptcy, 54. by trustee in insolvency, 54. of bankrupts, 54. of bondholders, 51. of cestuis que trustent, 51. of corporation, 54-57. of creditors of deceased persons, 50, 52, 53. of insolvents, 54. of legatees, 52, 53. of numerous class, 51. must be sufficient, 41, 44. of persons in community of interest, 51. of persons not in esse, 49. of possible parties, 49. of remaindermen, 51, 53, 54. of stockholders, 51, 54, 55. by person suing for class, 42-47. by parties in official capacity, 50. in creditors' bill, 51. in taxpayers' bill, 51. see "Parties." REPRESENTATIVES (see "Executor"; "Administrator"; "Representa- tion"). REPUGNANCY, in bill, 139, 141. see "Inconsistent Allegations"; "Inconsistent Defenses"; "De- murrer." INDEX. 1343 [EEFEKENCES AEE TO PAGES.] RE-REFERENCE, unnecessary when justice can be done, 623. to reopen cause, 622. to review report, 621. on failure to execute part of reference, 622. evidence on, 621. conclusions on, 621. see "Master's Report"; "Reference." RESALE (see "Sale"). RESCISSION, parties in suit for, 37, 61, 72, 73. offer to do equity, 127. for fraud, 72, 73. RES JUDICATA, decree in suit in behalf of class, 43. decree against administrator as to creditors, 53. decree against executor as to legatees and creditors, 53. decree against cestuis gue trustent as to trustee, 51, 52. decree against trustee as to cestuis que trustent, 51, 52. decree against corporation as to stockholder, 55. in suit to enforce stock subscription, 55. decree of dismissal, on demurrer, sustained, 265. for want of prosecution, 584. for want of jurisdiction, 590. without prejudice, 581, 588, 590, 714. after full hearing, 714. presumption as to, 588-590, 714. whole record examined, to determine whether on merits, 590. Bacon's ordinance concerning, 1047. voluntary dismissal as, 581. involuntary dismissal as, 588, 590, 714. plea of, 299. duplicity in, 301. see "Decree"; "Dismissal of Bill"; "Plea." RESERVATION OF LIBERTY TO APPLY, in final decree, 723. for fund in court, 723, 724. applications under, 724. in decree for life tenant, 723. see "Decree." RESTRAINING ORDER (see "Injunctions"). 1344 INDEX. [EEFEEENCES ABE TO PAGES.] RESPONSIVENESS (see "Answer"; "Evidence"). RETAINING BILL WITH LIBERTY TO BRING ACTION, 715 (see "Action at Law"). RETURN OF SERVICE, 172-176. must show manner of service, 172. must show strict compliance with, law, 172. time of, 161, 162. See "Return Day." effect of, 175. conclusiveness of, 175. impeaching, 175. liability of sheriff for false, 175. amendment of, 174. by whom made, 174. time of, 174, 176. after removal to United States court, 174. only in affirmance of decree, 176. effect of, 174. motion to quash, 175. Bacon's ordinance concerning, 1059. in United States courts, equity rule 12, p. 1065. form of, 173. RETURN DAY, 161-163. Bacon's ordinance concerning, 1059. REVIEW, BILL IN NATURE OF (see "Bill in Nature of Bill of Re- view"). REVIEW, BILL OF (see "Bill of Review"). REVIEW, COURT OF (see "Appellate Court"; "Appeal"). REVIEW, SUPPLEMENTAL BILL IN NATURE OF BILL OF (see "Supplemental Bill in Nature of Bill of Review"). REVIVOR, BILL OF (see "Bill of Revivor"). REVIVOR, BILL IN NATURE OF BILL OF (see "Bill in Nature of Bill of Revivor"). REVIVOR AND SUPPLEMENT, BILL OF (see "Bill of Revivor and Supplement"). REVIVOR AND SUPPLEMENT, BILL IN NATURE OF BILL OF (see "Bill in Nature of Bill of Revivor and Supplement"). INDEX. 1345 [befebences are to pages.] RULE, is an order, 447. nisi, to confirm master's report, 615. see "Orders"; "Rule to Show Cause." RULE TO SHOW CAUSE, definition of, 453. to consolidate causes, 476. why attachment for contempt should not issue, 551. service of copy of, 452, 453. time of, 453. form of, 558. form of answer to, 553. see "Orders"; "Contempt"; "Rule." RULES OF COURT, jurisdiction to adopt, 384. limitations on, 384. adoption of, 385. entry of record, 385. construction of, 387. effect as law, 385, 386. operation on pending action, 388. prospective operation, 387. proof of, 388. judicial notice of, 388. in appellate court, 388. in United States courts, after removal of cause, 388. presumption of compliance with, 386. amendment of, 388. in United States courts, equity rule 89, p. 1088. abrogation of, 388. suspension of, 386. waiver of, 386, 387. stipulation to waive, 387. equity rules of United States courts, 1062. ordinances of Lord Bacon, 1045. S. SALES BY MASTER, 762. notice of, 762. entitling, 763. procedure in conducting, 762. complainant's solicitor manages, 762. auctioneer may be employed, 762. Equity — 85. 1346 INDEX. [eefeeences are to pages.] SALES BY MASTER— Cont'd, purchasers, 763. order permitting party to purchase, 763. purchaser bound to see that decree complied with, 764. purchase money, interest on, 764. purchaser not bound to see to application of, 764. completion of, 763. report of, 763. confirmation of, 763. enrollment nunc pro tunc to protect, 751. death of defendant before, 751. death of complainant before, 917. SCANDAL AND IMPERTINENCE, scandal, definition of, 155. reference for, on application of stranger, 156. impertinence, definition of, 156. repetitions are, 345. power of court to prevent, 155. , in affidavits, 463. in -answer, 344, 345. See "Exceptions to Answer." of infant, 19. in bill, 155, 224, 225. See "Exceptions to Bill." in depositions, 689. in motion papers, 442. in petition, 445. in plea, 232. reference for, 156, 224. answer to scandalous matter, 320. answer to impertinent matter, 321. expunging, 367, 368. Bacon's ordinance concerning, 155, 1053, 1054. Chancellor Egerton's order, 155. in United States courts, equity rules 26, 27, pp. 155, 1069. form of exceptions for, 225, 363. form of order of reference of exceptions for, 368. form of master's report on reference for, 369. form of exceptions to master's report on exceptions to answer, 369. form of order expunging, on master's report, 370. form of order expunging, on submission to exceptions, 371. forms of order for further answer, 348, 349. SEAL, answer of corporation under, 67, 349. SECURITY FOR COSTS, motion for, 227. INDEX. 1^347 [KEFEEENCES ARE TO PAGES.] SECURITY FOR COSTS— Cont'd. on filing bill of review, 987, 996, 997, 1046. on filing petition for rehearing, 792. on appeal, 804, 805. see "Costs." SELDEN'S OPINION OF EQUITY, 2. SEPARATE ANSWER, by married woman, 21. see "Joint Answer." y SEPARATE PROPERTY OP MARRIED WOMAN, parties in suits concerning, 20, 21. SEQUESTRATION, WRIT OF, to compel appearance, 181. against corporation, 183. to enforce decree, 759. to reach, choses in action, 759. execution has superseded, 759. disuse of, 759. in United States courts, equity rules 7, 8, p. 1064. injunction for possession after, Bacon's ordinance, 1049, 1050. see "Decree"; "Execution." SERVICE, necessity of, before pro confesso, 185, 186. Bacon's ordinance concerning, 10*7. on agent of corporation, 165. on attorney, 167, 168. on corporation, 165. on foreign corporation, 165. agent to accept service, 30. on husband and wife, 164. on infant, 164, 218. on lunatic, 164. on married woman, 164. on state, 113. on persons decoyed into state, 180. on prisoner, 166. out of state, 163, 175. out of jurisdiction, 163, 175. modes of, 166. extraordinary, see "Extraordinary Service." constructive, see "Constructive Service." 1348 INDEX. [eefekences aru". to pages.] SERVICE— Cont'd. substituted, see "Substituted Service." by copy of bill, 170, 172. by leaving copy at dwelling house, 166. by leaving copy at hotel, 166. by leaving copy v?ith member of family, 166. by hanging process on door, 167. time of, 163. on Sunday, 163. on return day, 163. after return day, 163, 164. by whom made, by sherifC, 162, 163. by coroner, 163. by United States marshal, equity rule 15, pp. 163, 1065. defective, 177. appearance waives, 178. objection for, 177. for defect on face of record, 177. for defect dehors record, 177. by third person, 178. on appeal, 178. plea in abatement for, 177. motion to quash for, 177. appearance to object to, 210. acceptance of, 173. See "Acceptance of Service." recital of, in decree pro confesso, 194. dismissal for want of prosecution where delayed, 583. in United States courts, 166. equity rules 11-16, pp. 1065, 1066. defendant dying before, 902. of injunction, 532-535. of ne exeat, 509. of notice of motion, 440. of orders, 451-454. of petition, 445. see "Process"; "Return." SET-OFF, cross bill to assert, 951. SETTLED ACCOUNT, must be in writing, 302. opening, 303. fraud in, 303. bill to open, 131. plea of, 271, 272, 302. INDEX. ]^349 [befekences ake to pages.] SETTLED ACCOUNT— Cont'd, ■when proper, 302. allegation that true and just, 303. ' answer in support of plea, 303. pleading unsealed release as, 302. SHERIFF, service of process by, 162, 163. disqualification of, 163. bill of interpleader by, 814. as party where custodian of fund, 60. liability for false return, 175. SIGNATURE, to affidavit, 463. to answer, 331. joint answer, 332. in person, 332. to bill, 115. every bill must be signed, 115. of corporation, 115. in proper person, 115. of municipal corporation, 115. demurrer for want of, 115, 116. striking from files for want of, 116. to disclaimer, 377. to decree, 742. to demurrer, 265. to notice of motion, 438. to order, 450. to petition, 445. to plea, 284, 286. to replication, 382. to deposition before master, 606. to the various bills, see titles of such bills, form of order to take answer without, 335. SIMILAR INTERESTS (see "Common Interests"; "Interest"; "Joinder of Parties"; "Misjoinder of Parties"; "Multifariousness"; "Numerous Parties"; "Creditors' Bill"; "Parties"). SOLICITOR, employing, 157, 224. retainer need not be in writing, 157. authority of, 157, 158, 214, 224, 574. presumption of, 158, 214, 224. to appear for defendant, 214, 224. 1350 INDEX. [references are to pages.] SOLICITOR— Cont'd. to file bill, 574, 575. motion to dismiss for want of, 574, 575. to permit consent decree, 725. to stipulate cause to abide event, 477. appearance by, 214, 224. admissions of, 471-473. withdrawal of appearance by, 215. of corporation, 158. of infant, infant bound by acts of, 725. draws decrees in United States, 747. service of orders on, 452. service of process on, see "Extraordinary Service"; "Substituted Service." fees of, as costs out of fund, 773, 830. taxation of costs between solicitor and client, 778, 779. bill of discovery against, 872. signature of, to various pleadings and bills, see titles thereof, see "Attorneys"; "Counsel"; "Authority." /) SOVEREIGN, right to sue, 17. recognition by government requisite to, 17. liability to be sued, 17. king and queen in England, 17. governments in United States, 17. foreign sovereign, when trader, 17. suit in rem against property of, 17. effect of appearance of, 17. effect of appearance on jurisdiction over, 17. where personally found in country, 17. see "Government"; "State"; "Crown." SPEAKING DEMURRER, 239. SPECIAL APPEARANCE (see "Appearance"). SPECIAL DEMURRER (see "Demurrer"). SPECIAL RELIEF, necessity of prayer for, 109. injunction. 111. ne exeat. 111. relief grantable under prayer for. 111. less extensive relief, 735. only relief prayed, 111. INDEX. 1351 [REFEKENCES AEB TO PAGES.] SPECIAL RELIEF— Cont'd. amendment adding prayer for, 419. see "Relief"; "General Relief"; "Prayer for Relief"; "Alterna- tive Relief"; "Double Aspect." SPECIAL REPLICATION (see "Replication"). SPECIFIC PERFORMANCE, cross bill in, 951. amendment of bill for, 417, 419. ne exeat in, 502. parol evidence to vary written contract, 651. SPENDTHRIFT, INCAPACITY TO SUE, 15. SPLITTING CAUSES, not permissible, 154. joinder of parties to prevent, 71-73. multifariousness in bill to prevent, 145. demurrer for, 154. plea for, 296. form of demurrer for, 257. see "Multiplicity of Suits." STANDING OVER (see "Hearing"). STATE COURTS, suits against receivers of United States court in, 26, 27. suits by foreign corporations, not complying with state laws, see "Foreign Corporation." see "States." STATE OF FACTS (see "Reference"). STATED ACCOUNT, balance admitted, 302. balance in writing, 302. fraud in, 303. plea of, 302. allegations of, 302. answer in support of, 303. allegation that true and just, 303. STATES, courts of equity in, 9, 10. distinction between equity and common law abolished in certain, 10. 1352 INDEX. [EEFEEBNCES ABE TO PAGES.] STATES— Cont'd. enlargement of rights by, administered in United States courts, 13. codes of civil procedure in certain, 10, 11. suits against, 17, 18. jurisdiction of United States supreme court where state is party, 11. service of process on, 113. service of process out of, 163. judicial notice of boundary of, 137. restrictions on foreign corporations by, see "Foreign Corporation." see "Government"; "Sovereign." STATING PART OP BILL, office of, 103. is substance of bill, 104. allegations in, 103, 104. certainty in, 104. argumentativeness in, 104. positiveness in, 104. interrogating part cannot supply defects of, 104. is foundation for interrogatories, 108. validity of plea decided by, 105. in United States courts, equity rule 21, p. 1067. form of, 98. see "Bill." STATUTES, construction of, Bacon's ordinance, 1046. 13 Bdw. I. c. 24, 7. married woman's acts, 22. plea of, 299. answer pleading, 328. STATUTE OF FRAUDS (see "Frauds, Statute of"). STATUTE OP LIMITATIONS (see "Limitations, Statute of"; "Laches"). STAYING SUITS, by injunction, see "Injunctions." where suit not for benefit of infant, 19. where bill filed in name of fictitious person, 248. where another suit pending, 294. on refusal to produce document, 405. until answer to bill of discovery, 859. until answer to cross bill, 169. original bill on filing cross bill, 959, 968, 973. on petition for rehearing, 793, 1003. INDEX. 1353 [REFEBENCES ARE TO PAGES.] STAYING SUITS— Cont'd, on bill of review, 1003. on bill in nature of bill of review, 1003. on appeal, 806, 807. form of order staying suit on filing cross bill, 969. form of order staying suit pending rehearing, 793. see "Rehearing"; "Appeal"; "Bill of Review"; "Cross Bill"; "Another Suit Pending." STIPULATIONS, definition of, 466. in nature of contract, 467. construction of, 469. duration of, 470. validity of, 468. effect of, 467, 470. oral, 466. in open court, 466. entering of record, 466. requirement of writing, 466, 471. parol evidence to vary written, 469. to abide event of suit, 477. as to dismissals, 578. as to evidence, 470. as to judicial proceedings, 469. as to law, 468, 469. to waive rules of court, 387. statement of facts in, 469. where contrary to public policy, 468. who bound by, 469. infants not bound by, 470. attorney bound by stipulation of predecessor, 469. setting aside, 467, 468. relieving from, 467, 468. discretion of court in relieving from, 467, 468. grounds of relieving from, 467, 468. restoration of status quo, 468. frame of, 471. form of, 471. STOCKHOLDERS, joinder of, as parties, 73. dispensing with, where numerous, 41, 42. to bill to rescind stock subscription, 72, 73. with corporation in bill against corporation, 69. 1354 INDEX. [references ABE TO PAGES.] STOCKHOLDERS— Cont'd. bill by, in belialf of corporation, 55-57. requisites of, 55-57. request to directors to sue, 56. in United States courts, equity rule 94, p. 1089. when dispensed with, 57. "■ request to receiver to sue, 57. verification, United States equity rule 94, p. 1089. costs out of corporate fund, 773. bill by, against federal receiver, 27. bill by, against directors, 44. privity with corporation, 55. representation of, by corporation, 51, 54. representation of corporation by, 55-57. decree against corporation when res judicata, 55. answer to bill filed by, 339. as receivers, 483. see "Corporations." STORY'S DEFINITION OF EQUITY, 1. STRIKING FROM FILES (see "Disclaimer"; "Exceptions to Answer"; "Demurrer"; "Answer"; "Plea"; and titles of various bills). SUA SPONTE, objection for multifariousness, 153, 154. objection of want of equity, 586. objection of want of parties, 84. objection of want of jurisdiction, 246. SUBJECT-MATTER, interest in, of complainant, 70, 71. See "Complainant." of defendant, 75, 76. See "Defendant." all parties must have, 79. See "Parties." joinder of persons having, see "Common Interests"; "Interest"; "Joinder of Parties"; "Misjoinder of Parties"; "Multifarious- ness"; "Numerous Parties"; "Parties." SUBPOENA AD TESTIFICANDUM, office of, 690. service of, 691. time of, 691. tender of fees, 691. cannot run out of jurisdiction, 693. suffices for one sitting of court, 690. disobedience of, 691, 692. INDEX. 1355 [KEFEBBNCES ABE TO PAGES.] SUBPOENA AD TESTIFICANDUM— Cont'd, form of, 692. see "Contempt"; "Witnesses." SUBPOENA DUCES TECUM, 692. certainty in, 692. form of, 693. SUBPOENA TO APPEAR, origin of, 160. definition of, 160. names of parties in, 161. United States equity rule 12, p. 1065. on amended bill, 433. disobedience of, contempt, 549. in Michigan, 161. in Illinois, 161. in Virginia, 161. in United States courts, equity rules 7-16, pp. 160, 161, 1064-1066. form of prayer for, 114. form of subpoena, 162. see "Summons"; "Process"; "Service"; "Return"; "Prayer for Process." SUBPOENA TO HEAR JUDGMENT, 695. Bacon's ordinance, 1047. SUBPOENA TO SHOW CAUSE AGAINST DECREE (see "Decree"; "Infant"). SUBSCRIPTION TO STOCK, parties to bill to rescind, 72, 73. decree against corporation, res Judicata against stockholders, 54-57. bill to enforce, 55. SUBSTITUTED SERVICE, on cross bill, 169. on bill of interpleader, 169. on bill of revivor, 169. on bill of revivor and supplement, 169. effect of, 170-172, 197. by copy of bill, 170-172. form of order for, 170. see "Constructive Service"; "Extraordinary Service"; "Serv- ice." 1356 INDEX. [KEFERENCES ABE TO PAGES.] SUBSTITUTION OF PARTIES (see "Amendment of Bill"; "Supple- mental Bill"; "Bill in Nature of Supplemental Bill"; "Bill of Re- vivor"; "Bill of Revivor and Supplement"; "Bill In Nature of Bill of Revivor and Supplement"). SUMMONS, in Illinois, 160, 161. in Virginia, 160, 161. see "Subpoena to Appear"; "Process." SUNDAY, service of process on, 163. issue of injunction on, 531. SUPPLEMENTAL ANSWER, amendment of answer by, 422. to assert matter arising after issue, 951. in United States courts, equity rule 46, p. 1074. see "Amendment of Answer." SUPPLEMENTAL BILL, is bill not original, 94. office of, 887-889. distinction from amendment, 887, 890. distinction from bill in nature of supplemental bill, 895, 897, 1031. is in effect an amendment, 891, 892. is one bill with original, 892. is addition to original bill, 887. use of, in early practice, 887, 888. use of, where time for amendment passed, 888. use of, where amendment sufficient, 890. to introduce new parties, 64, 77, 887, 888, 898. to supply defects in original bill, 887. to put new matter in issue, 887, 888. where facts before known, 906. matter must arise subsequent to filing bill, 887, 890, 891. matter subsequent to issue, 951. See "Cross Bill." to put new interest in issue, 887. to introduce new evidence, 888-891. diligence in obtaining, 889. must be material, 890, 891. must change decree, 890. cumulative, 888. corroborative, 888, 891. to obtain relief other than prayed in original bill, 891. to pray more extensive relief, 893. where complainant alienates pendente lite, 894-897. INDEX. 1357 [bepeeences ake to pages.] SUPPLEMENTAL BILL— Cont'd. where change of interest pendente lite, 894-897. where interest autre droit terminates, 895. where inchoate right perfected, 892. by or against purchaser pendente lite, 894-897. before decree, 896. after decree, 896. stands in place of alienor, 899. bound by proceedings after alienation, 913. by administrator, 895. obtaining letters after filing bill, 892. by executor, 895. obtaining letters after filing bill, 892. in case of bankruptcy, 895, 897. in case of insolvency, 895, 897. to vary principles of decree, 894. to impeach decree, 887, 889. to supply omissions in decree, 894. to aid decree, 887, 889. to carry decree into execution, 889. in creditors' suit, 893. as defense to cross bill, 898. where infant comes of age, 891. in case of bankruptcy, 895, 897. in case of insolvency, 895, 897. to perpetuate testimony, 902. title of complainant remains the same, 891. original bill showing no ground for relief, 893. cause of action must exist when original bill filed, 894. original bill wholly defective, 893. must be germane to original bill, 894. parties to, 898. defendants to original bill, 898. defendants to original bill, when filed to bring in new parties, 898. purchaser pendente lite, 898, 899. to bill by co-complainants against purchaser, 899. formal parties to original bill, 898. objection for want of, 899. frame of bill, 900. incorporating amendment in, 902. statement of original bill, extent of, 900, 901. statement of original bill, effect of, 901. allegation of subsequent events, 901, 902. must be germane to original bill, 894. must not be in conflict with original bill, 892. 1358 INBEX. [REFEEENCES ABE TO PAGES.] SUPPLEMENTAL, BILL— Cont'd. prayer of, 902. prayer to answer original bill, 902. prayer to answer supplemental bill, 902. prayer of process, 903. signature of, 903. filing, 905. before decree, 887. after decree, 887, 889. after dismissal of original bill, 911. diligence in, 905. preference in, 899. vacates pro confesso on original bill, 204. leave to file, 889, 906. in discretion of court, 907. application for, 906. motion for, 907, 908. petition for, 907, 908. notice of, 906. praying injunction, 906, 907. strilting from files for want of, 907. demurrer for want of, 907. waiver of objection for want of, 906. striking from files, 907, 911. process on, 909. subpoena, 909. in Illinois, 909. in United States courts, equity rule 57, pp. 909, 1077. injunction, 521. appearance to, 909. in Illinois, 909. in United States courts, equity rule 57, pp. 909, 1077. demurrer to, 907, 909. grounds of, 909, 910. for want of title, 910. for want of interest of defendant in original bill, 910. for want of leave to file, 907. where title distinct from title in original bill, 910. wbere matter arising prior to original bill, 910. where amendment sufficient, 910. rules governing, 911. plea to, 907. grounds of, 911. matters in avoidance, 898. rules governing, 911. answer to, 902, 903, 907, 911, 912. to original and supplemental bills, 902, 903, 911, 912. INDEX. 1359 [references are to pages.] SUPPLEMENTAL, BILL— Cont'd. cannot add to answer to original bill, 912. of representative of defendant, dying before service on original bill, 902. incorporating demurrer in, 911, 912. replication to, 912. to original and supplemental bills, 912. proceedings after answer, 912. evidence under, 912. use of evidence taken on original bill, 913. examination of witnesses under, 913. after publication in original cause, 913. entitling orders in, 914. hearing on, 913. dismissal of, 914. decree on, 896, 914. statutory substitutes for, 889, 890. in United States courts, equity rules 57, 58, p. 1077. form of supplemental bill, 904. form of supplemental bill praying injunction, 903. form of petition for leave to file, 908. form of order granting leave to file, 908. see "Amendment of Bill"; "New Parties." SUPPLEMENTAL BILL OF DISCOVERY, 886 (see "Bill of Discov- ery"). SUPPLEMENTAL BILL IN NATURE OF BILL OF REVIEW, is bill not original, 94. distinction from bill of review, 976. lies before enrollment, 976, 1037. office of, 1037. by remainderman, 1037. for want of parties, 1037. to bring forward new matter, 1038. new matter must be material, 1038, 1039. must change decree, 1039. not before discoverable, 1038. diligence in discovering, 1038. discovered after decree, 1037, 1038. where decree against party having no interest, 1037. performance of decree by complainant, 1039. when unnecessary, 1039, 1040. See "Bill of Review." leave to file, 1037, lu^O. application for, 1040. time for, 1040. petition for, 1040. 1360 INDEX. [ebfkeences aee to pages.] SUPPLEMENTAL BILL IN NATURE OF BILL OF REVIEW— Cont'd, affidavit to support, 1040. notice of, 1040. frame of bill, 1039. requisites of, 1039. prayer of, 1039. verification of, 117. proceedings on, 1042. petition for rehearing with, 784, 1042. rehearing with, 1042. form of supplemental bill in nature of bill of review, 1040. form of order granting leave to file, with petition for rehearing, 1042. see "Bill of Review"; "Rehearing." SUPPLEMENTAL BILL IN NATURE OF BILL OF REVIVOR, 1025. SUPPRESSION OF DEPOSITION (see "Depositions"). SURETIES, bill against sureties of guardian, 74. on ne exeat bond, 509. on receiver's bond, 494. ne exeat in behalf of, 502. bill in nature of supplemental bill by, 1031. SURPLUSAGE, multifariousness not caused by, 144. in master's report, 618. see "Scandal and Impertinence"; "Plea"; "Answer." T. TAKING BILL PRO CONFESSO (see "Pro Confesso"; "Order Pro Confesso"; "Decree Pro Confesso"; "Decree"). TAKING PROM FILES (see titles of various bills and pleadings). TAXPAYERS, parties in bill by, 51. multifariousness in bill by, 149, 150. See "Tax Sale." TAX SALE, bill to enjoin, 123, 128. bill to set aside, 127, 128. see "Taxpayers." TENANT IN TAIL, representation of, by remainderman, 53, 54. INDEX. 1361 [EEFEBENCES ABB TO PAGES.] TENANT IN TAIL— Cont'd. bill to perpetuate testimony by, 839, 840. see "Representation." TENDER, EFFECT ON COSTS, 772 (see "Offer to Do Equity"; "Costs"). TESTIMONY (see "Evidence"; "Proofs"; "Witnesses"; "Publication"; "Bill De Bene Esse"; "Depositions"; "De Bene Esse, Taking Tes- timony"; "Reference"; "Perpetuation of Testimony"). TIME, of filing pleadings, see titles of various bills and pleadings, of proceedings, see titles of various proceedings, computation of, 453. TITLE, doubtful to sustain bill, 250. litigated to sustain bill, 249. ^allegation of, 119, 124, 125. answer meeting complainant's, 321. discovery relating to defendant's, 322. of pleadings and proceedings, see titles of various bills, pleadings, and proceedings, demurrer for want of, 249. form of demurrer for, 257. TRIAL BY JURY (see "Jury Trial"; "Feigned Issue"; "Contempt"; "Action at Law." TRUSTEE, representation of bondholders, 51. representation of cestuis que trustent, 51, 52. decree against, binds cestuis que trustent, 52. laches in suit against, 128, 129. multifariousness in bill against, 151. bill to impeach decree against, 1006. payment of money into court by, 394. receiver of property in hands of, 482. costs of, 774. deprivation of, 775, 777. of unnecessary litigation, 775, 777. costs against, 775. abatement by death of one, 918. in United States courts, parties to bills by, equity rules 49, 50, p. 1075. see "Cestui Que Trust"; "Representation"; "Parties"; "Res Judicata." Equity — 86. 1362 IND£3X. [EEFEEENCES AEE TO PAGES.] TRUSTEE IN BANIORUPTCY, when a necessary party, 64, 65. joinder of bankrupt with, as party, 66, 67. representation of creditors, 54. bill in nature of bill of revivor by, 1023. bill in nature of supplemental bill by, 895, 897, 1029. see "Bankruptcy"; "Bankrupt." TRUSTEE OF INSOLVENT, when necessary party, 64, 65. representation of creditors, 54. bill in nature of bill of revivor by, 1023. bill in nature of supplemental bill by, 895, 897, 1029. see "Insolvent"; "Insolvency." TRUSTS, introduction of, into England, 8. parties In bill to recover trust property, 51. U. UNITED STATES, courts of equity in, 9. equity in, 9. suit against, 17. UNITED STATES CIRCUIT COURT, equity jurisdiction of, 11. practice that of high court of chancery, 12. see "United States Courts." UNITED STATES CIRCUIT COURT OP APPEALS, equity jurisdiction of, 11. rehearing where appeal lies to, 782. UNITED STATES COURTS, equity jurisdiction of, 11, 12. no jurisdiction of divorce, 12. of alimony, 12. practice not affected by state legislation, 13. practice uniform, 10, 13. enforcement of right created by state legislation, 13. parties in, classification of, 58, 59. numerous, 42. dispensing with, 42. out of jurisdiction, dispensing with, 39, 58, 59. INDEX. 1363 [EKFEBBNCES ABE TO PAGES.] UNITED STATES COURTS— Cont'd. citizenship of, 58. demurrer for failure to state, 103. publication for absent, 58, 59. bills, introductory part, equity rule 20, p. 1067. charging part, equity rule 21, pp. 106, 1067. stating part, equity rule 21, p. 1067. interrogating part, equity rules 40-44, pp. 1072-1074. confederating part, equity rule 21, p. 1067. jurisdiction clause, equity rule 21, p. 1067. prayer for relief, equity rule 21, p. 1067. prayer for process, equity rules 21-23, pp. 1067, 1068. interrogatories in, equity rules 40-44, pp. 1072-1074. signature, equity rule 24, p. 1068. allegation of citizenship, 58, 59, 102, 103. equity rule 20, p. 1067. bill by stockholder in behalf of corporation, 55-57. request to directors to sue, equity rule 94, pp. 56, 1089. dispensed with, 57. request to receiver to sue, 57. taking bills pro confesso, 185. equity rules 18, 19, 34, pp. 1066, 1071. opening, 199. subpoena, 160, 161. equity rules 5, 7, 11-16, pp. 1063-1066. service of process, 166. out of jurisdiction, 169, 170. equity rules 11-16, pp. 1065, 1066. references, 602. equity rules 73-84, pp. 1085-1087. answer does not overrule demurrer or plea, 236. equity rule 37, p. 1071. lien of decrees of, 764. removal of causes to, 174, 211. See "Removal of Causes." receivers of, see "Receivers." alien residing in United States has right to sue in, 17. right of foreign corporation to sue when state law not complied with, 31. ~ judges of, powers, equity rule 3, p. 1062. rules of, see "Rules in Equity," 1062. see "United States Circuit Court"; "United States Circuit Court of Appeals"; "United States District Court"; "United States Supreme Court"; "Court of Claims"; "Court of Private Land Claims." 1364 INDEX. [EEFEBENOES ARE TO PAGES.] UNITED STATES DISTRICT COURT, equity jurisdiction of, 11. See "United States Courts." UNITED STATES MARSHAL, service of, process by, equity rule 15, p. 1065. UNITED STATES SUPREME COURT, equity jurisdiction of, 11. rehearing, when appeal lies to, 782. appeal to, from consent decree, 725. see "United States Courts." UNKNOWN OWNERS, statutory provisions as to, 41. see "Unknown Persons." UNKNOWN PERSONS, dispensing with, as parties, 38, 40. allegation of bill as to, 40. see "Unknown Owners." USURY, allegation of, in bill, 131. offer to do equity in bill based on, 128. answer asserting, 328. answer to bill charging, 321. defense of, after opening pro confesso, 200. V. VACATING DECREE (see "Decree"; "Decree Pro Confesso"). VALUE IN DISPUTE (see "Amount in Controversy"). VARIANCE (see "Evidence"; "Exhibits"; "Proofs"; "Decree"; "Bill"). VENDOR, bill for rescission by, 37, 61. as party to bill, 61. payment of money into court by, 394, 395. VERDICT (see "Action at Law"; "Feigned Issue"). VERIFICATION, of bill, 116. of bill de bene esse, 850. of bill of discovery, 869, 870. of bill for discovery and relief, 116, 117, 869, 870. INDEX. 136_5 [EEFEEENCES ARE TO PAGES.] VERIFICATION— Cont'd. of bill for injunction, 117, 521. of bill of interpleader, 117, 820. of bill praying ne exeat, 117, 501. of bill praying receiver, 118. of bill of review, 117, 991. of bill for perpetuation of testimony, 117. of supplemental bill in nature of bill of review, 117. of bill of revivor and supplement, 941. of bill of corporation, 117, 118. of amendment to bill, 431. of amendment to sworn pleading, 431. of petition, 445. of answer to petition, 446. of demurrer in United States courts, equity rule 31, p. 1070. of plea, see "Plea." of plea in United States courts, equity rule 31, p. 1070. of answer, see "Answer." of disclaimer, see "Disclaimer." by agent, 118. by attorney, 118. on information and belief, 118, 334. insufficient to answer, striking answer from files, 356. exceptions do not lie, 356, demurrer for want of, to bill, 119. form of, to bill, 119. forms of, to answer, 335, 337. see "Oath"; "Affidavit"; "Jurat"; and titles of the various bills. VICE-CHANCELLOR IN ENGLAND, 8, 9. VIRGINIA, summons in, 160, 161. prayer for summons in, 114. petition for rehearing in, 788. bill of review in, 788. bill of certiorari in, 93. VIVA VOCE EVIDENCE (see "Evidence"; "Reference"; "Hearing"). VOLUNTARY APPEARANCE, 207 (see "Appearance"). VOLUNTARY ASSOCIATION, parties to suits by and against, 38, 43-45. committee suing in behalf of, 44. members of, as parties, 38. 1366 INDEX. [EEFEEENCES ABE TO PAGES.] VOLUNTARY ASSOCIATION— Cont'd, bills by or against churches, 40, 41. demurrer to bill by, 248. w. WAIVER, of answer under oath, 332-334, 661-662. See "Answer"; "Evidence." effect of, on motion to dissolve injunction, 539. of defective service, 177, 178. of exceptions, 364. of objection of adequate remedy at law, 246. of objection of multifariousness, 153, 154. of objection to jurisdiction, 212, 213. of objection to penalty or forfeiture, 251. of right to move to discharge ne exeat, 510, 511. of notice of motion, 440. of rules of court, 386, 387. of rights by committee, 25. of special appearance, 210, 211. see "Oath"; "Signature"; "Verification"; "Plea"; "Demurrer"; "Replication." WANT OF EQUITY, in cross bill, 577, 955. demurrer for, 966. objection for, on court's own motion, 246. demurrer for, 245. demurrer ore tonus for, 240. answer asserting, 329. after demurrer overruled, 329. plea for, on face of bill, 233. dismissal for, 234. on court's own motion, 586. discharge of ne exeat for, 510. dissolution of injunction for, 537. form of demurrer for, 255. form of answer asserting, 338. see "Dismissal for Want of Equity"; "Jurisdiction"; "Hear- ing." WANT OF JURISDICTION (see "Jurisdiction"; "Dismissal for Want of Jurisdiction"). WANT OP PARTIES (see "Nonjoinder of Parties"; "Parties"; "De- murrer"; "Plea"; "Answer"; "Hearing"). WANT OF PROSECUTION (see "Dismissal for Want of Prosecution"). INDEX. 1367 [bepeeences abb to pages.] WASTE, receiver in case of, 480, 482. injunction to restrain, 522. Bacon's ordinance concerning, 1049. WEAK-MINDED PERSON, capacity to sue, 22-25. next friend, suit by, 23, 24. unnecessary, 24. WILL, bill to perpetuate testimony of witnesses to, 841. WITHDRAWAL, of answer, 352. of demurrer, 237, 260. See "Demurrer." of fund in court, 397. See "Fund in Court"; "Paying Money into Court." of petition for rehearing, 792. See "Petition for Rebearing." of plea, 308. See "Plea." of replication, 381. See "Replication"; "Amendment of Bill"; "Waiver." WITHOUT PREJUDICE, DISMISSAL OP BILL (see "Dismissal of Bill"; "Res Judicata"). WITNESSES, not to be made parties, 67. exception in case of oflBcers or agents of corporation, see "Cor- poration." demurrer for making, parties, 250. subpoena ad testificandum to, 690-694. See "Subpoena Ad Testi- ficandum." subpoena duces tecum to, 690. See "Subpoena Duces Tecum." attendance of, 690. enforcing attendance of, 690. by process of contempt, 549, 691, 692. See "Contempt." in United States courts, equity rule 67, p. 1080. out of jurisdiction, 693. before master, 605, 606. examination of, under old chancery practice, 673. under modern practice, 676. Bacon's ordinances concerning, 1055, 1056. in United States courts, equity rules 67, 70, 78, pp. 1080, 1083, 1085. in open court, equity rule 78, p. 1085. orally, equity rule 67, p. 1080. 1368 INDEX. [BEFEEENCBS ABE TO FAQES.] WITNESSES— Cont'd. on reference, 605. before master, 606. in United States courts, equity rule 78, p. 1085. as to credit, 690. after publication, 675. as to competency, 690. as to competency before hearing, 689, 690. cross-examination, 675. prevented, 687. secreting witness to prevent, 688. prevention of, by death of witness, 687. refusal of witness to submit to, 688. examination of, de bene esse, 678. See "De Bene Esse, Taking Testimony." i bill to examine de bene esse, 849. See "Bill de Bene Esse." bill to perpetuate testimony of, 838. See "Perpetuation of Testi- mony." bill of discovery against, 861. See "Bill of Discovery." against witness in foreign state, 694. privilege from service of process, 179, 180, 691. alien's right to process for, 16. out of jurisdiction, 693. party as, on reference, 605. party as, on trial of feigned issue, 636, 637. signature to evidence, 606. names of, in petition for rehearing, 788. tampering with, 550. See "Contempt." see "Evidence"; "Hearing"; "Reference." WRIT OF ASSISTANCE (see "Assistance, Writ of"). WRIT OF DISTRINGAS (see "Distringas"). WRIT OF EXECUTION (see "Execution, Writ of"). WRIT OF NE EXEAT (see "Na Exeat"). WRIT OF REBELLION (see "Rebellion, Writ of"). WRIT OF INJUNCTION (see "Injunction"). WRIT OF SEQUESTRATION (see "Sequestration, Writ of"). WRITINGS (see "Deeds"; "Documents"; "Exhibits"; "Production of Documents"; "Bill of Discovery"; "Bill for Discovery and Relief"). A