JHaral|all lEquttg OloUcrtton (gift of i- 31. MacsljaU. ICffi. 1. 1B94 CORNELL UNIVERSITY LIBRARY 3 1924 084 224 041 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://archive.org/details/cu31924084224041 EQUITY PLEADINGS AND PRACTICE IN THE COURTS OF MASSACHUSETTS. WITH TREQUENT EEFEEENCES TO THE PRACTICE IN OTHEE JURISDICTIONS. WITH AN APPENDIX OF FORMS. BY P. EMORY ALDRICH. BOSTON: LITTLE, BROWN, AND COMPANY. 1885. Entered according to Act of Congress, in the year 1885, By Little, Brown, and Company, In the Office of the Librarian of Congress, at Washington. UNiTEKaiTT Press: John Wilson and Son, OAMBRnjGE. PEEFACE. A TREATISE on Pleading and Practice must necessarily be a compilation from earlier works on the same subjects, from legislation, and from the decisions and rules of courts. The original design of the following compilation was to show the origin and development of equity jurisdiction and practice in this Commonwealth, as exhibited in our statutes and in the decisions of the Supreme Judicial Court. This plan has undergone some changes in the process of its execution. In the first place, the compiler examined all the acts of the Legislature conferring equity jurisdiction upon the courts. These acts extend over a period of one hundred years, from 1783 to 1883. A condensed and very brief analysis of this legislation will be found in the Introduction to the present work. He next examined the decisions, in equity causes, of the full court, covering a period of eighty years, from 1804 to 1884. The ^results of this examination may be found briefly stated in Chapter XXII. This review of legislation and judicial decisions reveals the extreme reluctance with which the Legislature from time to time, and at long inter- vals, granted equity jurisdiction to the court, and the equally extreme caution with which the court exercised the limited jurisdiction thus conferred upon it ; and both resulted in establishing in this Commonwealth a most imperfect and fragmentary system of equity jurisprudence and practice. But this system has undergone many changes during the last thirty years, especially since the passage of the act grant- IV PREFACE. ing to the Supreme Judicial Court full equity jurisdiction. The chapter above named contains all the provisions of our statutes, now in force, conferring equity powers upon the courts, and, to some extent, regulating their exercise. In connection with these statutes will be found decisions of the full court, in causes founded upon them, and showing the construction the coui?t has, from time to time, given to these statutes. Appendix B contains the rules recently adopted by the Supreme Court for the regulation of Chan- cery practice. These statutes, decisions, and rules present, in one view, what may be, called the Massachusetts system of equity, as it now exists. The , other chapters of this work may, perhaps, more properly be regarded as brief studies on the several topics therein named, rather than as constituting a systematic trea- tise ; yet nearly every branch of equity pleading and practice now prevailing in this country will be found more or less considered in these chapters, and such references made as will guide the student to sources and means of fuller inves- tigation and discussion. This part of the work has been written upon the theory that the law, as Lord Mansfield says, " does not consist of particular cases, but of general principles, which are illus- trated and explained by these cases." When once the the- ory and principles of the law have been clearly stated and illustrated by a limited number of citations, it ought not to be difficult to apply these principles to new cases as they arise. Theory and practice should be so combined as that one will suggest the other. With the Roman jurists, says Savigny, " theory and practice are not in fact distinct ; their theory is so thoroughly worked out as to be fit for immedi- ate application, and their practice is uniformly ennobled by scientific treatment. In every principle they see a case to which it may be applied ; in every case, the rule by which PREFACE. V it is to be determined." And so it may be in every system for the administration of justice, where theory and practice are not divorced. In these chapters the principles of law, with a limited number of cases illustrative of those principles, are given, with no attempt to crowd or multiply pages with unnecessary quotations. The chapter on Costs, for instance, covers only ten pages, instead of eighty pages on the same subject, which may be found in a recent treatise on equity practice ; and yet the statement of the rules regulating the allow- ance of costs in equity causes, made in these ten pages, is believed to be sufficient to enable any one familiar with those rules to apply them without difficulty in all new cases as they arise. The same succinct method of treatment is ob- served in other chapters. The great superiority of equity proceedings, as a system of remedial justice, over those of the common law, lies in the judicious exercise by the court of its authority over the preliminary proceedings of a cause, by issuing temporary injunctions, and passing such other interlocutory decrees and orders as the varying aspects of the case, as .it proceeds, may demand. In a great majority of cases, the proper exercise of this authority, on the part of the court, and a readiness to give the parties an early hearing, will bring causes to a speedy and satisfactory termination, instead of suffering them to be drawn out into prolonged and needless litigation. In view of these facts, special attention has been given to practice with reference to these preliminary and interlocutory pro- ceedings, both in the body of the work and in the selection of the forms to be found in the Appendix. These forms are taken largely from the fifth American edition of Daniell's Chancery Practice. While the practice in the courts of Massachusetts is the more especial subject of consideration in this volume, yet liberal use has been made of the decisions VI PEEFACE. of courts of the highest authority, exercising equity jurisdic- tion, in other States, and the decisions of the Supreme Court of the United States and of the English Court of Chancery, showing the practice in these several jurisdictions. The work is not therefore entirely local, either in its plan or execution. It has been written in the midst of other and imperative duties, and with frequent and sometimes prolonged inter- ruptions. The reader will undoubtedly discover some need- less repetitions, and other imperfections resulting from the circumstances under which the work has been compiled. But it can hardly be worth while to apologize for what one ventures to publish. This volume is, therefore, without further explanation of its origin and design, submitted to the judgment of the profession for whose use it is intended. They will be the most competent judges of its value; and ordinarily the most competent are the most charitable of critics. The table of cases cited in this volume, and the indexes, have been prepared by Charles F. Aldeich, Esq., of the Worcester Bar. CONTENTS. Pages Table of Cases Cited xi-xsd INTEODUCTION. Legislation 1-16 CHAPTER I. Jurisdiction in Equity 17-32 Section I. Jurisdiction of the Court 17 n. Jurisdiction as to Parties 29 m. Jurisdiction as to the Amount claimed 31 CHAPTER II, Parties to a Suit 33-49 Section I. Generally 33 II. Plaintiffs 38 III. Defendants 43 (a.) Corporations 43 (b.) Defendants out of the State 44 CHAPTER in. Commencement of a Suit 50-58 Section I. Generally 50 II. Venue 54 III. Service of Process 55 Vlll CONTENTS. CHAPTER IV. Pages Appearance 59-64 CHAPTEE V. The Pleadings in a, Suit 65-75 Section I. Generally 65 II. Form of the Bill 67 III. Matter of the BiU 73 CHAPTER VI. Ceoss-Bills, Supplemental Bills, Bills of Eevivoe, Review, etc 76-93 Section I. Cross-Bill 76 II. Supplemental Bill 78 III. Bills of Revivor 84 IV. Bills of Review 87 V. Bills of Interpleader 89 VI. Bills for Instructions .... 92 CHAPTER VII. Modes of Defence , 94-123 Section I. Generally . = = ,..... 94 II. Demurrer o ........ 94 ni. Disclaimer 102 IV. Plea 103 V. Answers 113 CHAPTER VIH. Replication 124-126 CONTENTS. IX CHAPTER IX. Pages Amendments 127-135 Section I. Of Bills 127 II. Amendment of Answers 132 III. Amendment of Pleas 134 CHAPTER X. Exceptions to Answers 136-140 CHAPTER XI. Proceedings before Masters, and their Report . 141-154 Section I. Proceedings 141 n. Master's Report 152 CHAPTER XII. Issues to Jury 155-165 CHAPTER XIII. Evidence , 166-176 CHAPTER XIV. Taking the Bill pro Confesso 61 and 177-185 CHAPTER XV. Costs 186-194 CHAPTER XVI. Specific Performance 195-204 CHAPTER XVII. Injunctions 205-216 CONTENTS. CHAPTER XVIII. Pages Dismissing Bills and Stating Proceedings . . . 217-222 CHAPTER XIX. Execution and Contempt 223-227 CHAPTER XX. Rule Days and Motions 228-232 CHAPTER XXI. Receivees 233-246 CHAPTER XXII. Statutes and Decisions 247-316 Section I. Jurisdiction in Equity 247 II. Miscellaneous Subjects over which the Supreme Ju- dicial Court has Jurisdiction by Special Statutes . 305 APPENDIX. A. Schedule op Forms 317-364 B. Rules op Practice 365-374 I. Rules for Practice in Divorce 365 II. Rules for the Regulation of Practice in Chancery . . .365 m. Order of Business in Suffolk County 373 Index to Rules in Equity 375 Index to Rules for the Regulation of Practice in Divorce . 383 Index to Order of Business in Suffolk County 384 Index to Forms 385-891 General Index 392-409 TABLE OF CASES CITED. Abbott V. Bradstreet 192 Adair v. Adair 150 Adams v. Adams 280 V. Briggs Iron Co. 264 V. Brown 150 V. Porter 114, 191 Adderly v. Dixon . 24 Agar V. Regent's Canal Co. 114, 216 Alirend v. Odiorne 99, 276 Alexander v. Hoffinan 204 Allan V. Allan 73 Allen V. Allen 286 1^. Hawley 243 I. Marion 307 V. Rand 175 V. Spring 79 V. Storer 25 , 101, 280 American Academy of Arts v. Har- vard CoUege ' 348 Ames V. King 72, 209, 308 V. Stevens 301 Amey v. Long 175 Amory v. Fellows 175 Andrew v. Andrew 148 V. Oilman 76 V. Spurr 321 Andrews v. Brown 201 Androscoggin & Kennebec R. R. Co. V. Androscoggin R. R. Co. 215 Angell V. Hadden 89 V. Smith" 238, 239 v. Stone 263 Angerstein v. Hunt 215 Angier v. May 215 Anonymous 227 Anthracite Ins. Co. v. Sears 268 Arnot V. Biscoe 169 Arundell v. Phipps 206 Ashmead v. Colby 153 Ashton V. Atlantic Bank 36 Page Atkins V, Billings 204 V. Faulkner 180 Atlanta Mills v. Mason 164 Atlas Bank v. Nahant Bank 37, 242 Attaquin v. Pish 265 Attorney-General v. Avon 80 V. Baker 52 1,. Barbour 262, 286, 290 V. Brown 39 V. Butler 52 V. Cambridge 40 V. Garrison 40 V. Luton Board of Health 209 V. Old South Society 39 V. Parker 40,52 V. Pearson 206 V. Tudor Ice Co. 40 V. Wright 231 Aylet V. Easy 76 B. Badeau v. Rogers 92 Badger v. McNamara 268 Bailey v. Myrick 144 Bainbridge v. Blair 246 Baker v. Cooper 241 V. Mayo 153 Ballou V. Hopkinton 41, 266 Bamforth v. Bamforth 311 Bampton v. Birchall 105 Bank v. Farques 173 Bank of Niagara, Matter of the 244 Bank of Orleans v. Skinner 212 Bank of United States v. "White 88 Bank of Utica v. Messerau 114 Bardwell v. Ames 41,79 Barnard v. Bartholomew 151 V. Lee 199 Barnes v. Boston & Maine R. R. Co. 258 Xll TABLE OP CASES CITED. Page Barns v. Lynde 51 Barry v. Abbott 273 Bartholomew v. Weld 271 Bartlett v. Gale 119 V. Johnson 192 V. Parks 48, 267 Baskcomb v. Beckwith 197 Bassett v. Brown 19, 263, 280, 285 Battle V. Davis 241 Baxendale v. McMurray 232 163 91 232 50, 71, 281 134 125 230 227 197 217 208 90 236 110 173 34 225 18 301 138 223 Bean v. Herrick Bedell v. Hoffman Beekman v. Feck Belknap v. Stone Bell V. Dunmore Bellows V, Stone Bergen v. Jones Best V. Gomperty ('. Stow Betts V. Barton Bigelow V. Hartford Bridge Bignold V. Audlahd Bill V. New Albany E. R. Co. Bingham v. Cabot Bird V. Lake Birmingliam v. Gallagher Bishop, Ex parte Black V. Black Blackington v. Johnson Blaisdell v. Stephens Blake v. Blake Blakemore v. Glamorganshire Canal Navigation 211 Bliss V. Am. Bible Society 192 Blood V. Blood 264 Bluck V. Colnaghi 218 Bogardus v. Trinity Church 105 Bond V. Hopkins 14 Booth V. Leycester 217 Borrowscale v. Tuttle 220 .Bosley v. Phillips 129 Boston & Fairhaven Iron Works v. Montague 21, 250 Boston & Maine R. R. Co. v. Bartlett 259 Boston Iron Co. v. King 154 Boston Manufacturing Co. u. Bur- gin 316 Boston Water Power Co. v, Boston & Wor. R. R. Co. 98 Boucicault y. Delafield 221 Bousfield V. Mould 125 Bowditch V. Gordon 315 V. Soltyk ' 192 Bowen v. Cross 132 Bowman v. Bell 237 V. Floyd 209, .308 Boyd V. Mills 137 Boyden v. Partridge 36, 249 Bradley v. Aldrich 162 V. Richardson 206 Page Bradstreet v. Butterfield 54 ,299 Bradt v. Kirkpatrick 99 Brady v. Waldron 207 Brainard v. Conn. River R. R. Co. 310 Breckinridge v. Brooks 151 Bresnihan y.Sheehan 273 Brickwood v. Harvey 179 Briggs V. Law 206 V. Shaw 206 Brigham v. Home Life Ins. Cc . 261 V. Parker 171 Brignall v. Whitehead 230 Brinckerhoff i). Brown 167 V. Lansing 188 Brookway v. Copp 167 Brodie v. Barry 236 Brooks V. Byam 138, 140 186 V. Everett 192 V. Tarbell 165 288 Broughton v. Martyn 227 Brown v. Home 178 V. Pierce 167 V. Rieketts 37 125 V. Simons 150 Browning v. Watkins 90 Bruck V. Tucker 201 Bryant v. Russell 42, 187 Buckingham v. Peddicord 62 Budding v. Murdock 303 Bulkley v. Van Wyck 138 Bull V. Loveland 175 Burlingame v. Hobbs 54 Burnside v. Merrick 264 Burr V. Lynde 282 Buttler V. Mathews 179 Buxton V. Lister 195 c. 41, 208, 266, 267 197 237 180 163 234 Cadigan v. Brown Cadman v. Homer Caillard v. Caillard Caines v. Fisher 61, 178, 179, Call V. Perkins Callahan v. Shaw Camden & Amboy R. R. Co. v. Stewart 217 Cammack v. Johnson , 234 Campbell v. Brown 99 V. Dearborn 251, 273 V. Morrison 211 V. Wallace 253 Campion v. Kille 134 Candler v. Pettit 81 Canedy v. Marcy 276 Carlisle v. Cooper 221 Carlton v. Salem 887 Carpenter v. Snelling 171 Carr v. Silloway 263 TABLE OF CASES CITED. XIU Page Page Carrington v. Holly 218 Commonwealth v. Hide & Leather Carter, In re 245 Ins. Co. 242, 269 r. Mills 204 Commonwealth v. Jeffries 175 V. United Ins. Co. 35 V. Phoenix Bank 242 Cartwright's Case 245 V. Reading Savings Bank 242 Cartwright v. Clark 76 I'. Sumner 57 Carver i'. Peck 271 Conant v. Perkins 312 Cassidy v. Marcy 321 V. Warren 96 V. Shimmin 34 Cone V. Hamilton 34 Catherall v. Davies 92 Conn. River R. R. Co. v. Co. Com'rs Catling V. King 199 of Franklin Co. 309 Cattell V. Simons 226 Consequa v. Fanning 149 Caverly v. Simpson 259 Cook V. Bell 134 Cazenove v. Cutler 150 Cooper V. Lewis 280 Chadwick v. Maden 37 V. Webb 37 Chamley v. Dunsaney 78 Copeland v. Crane 153 Champion v. Brown 203 V. Huntington 307 Champlin v. Parish 73 V. Wheeler 138 Champneys v. Buchan 125 Copp V. Henniker 162 Cliapin V. Coleman 106 Corning v. Lowerre 208 Chapman v. Banker & Tradesman Countess of Plymouth v. Bladon 222 Pub. Co. 32, 99 270 Courage v. Wardell 179, 182 Charles River Bridge v. Warren Cowper V. Baker 208, 266 Bridge 5, 18, 26, 131, 176, 265 302 Crane v. Bunnell 206 Chase v. Palmer 73 V. Ford 240 Cheney v. Gleason 85 288 Crease v. Babcock 96, 102, 128 Chewet v. Jones 169 Creeley v. Bay State Brick Co. 102, 266 Child V. Brabson 227 Crittenden v. Field 156 V. Stoddard 274 Crocker v. Dillon . 98 Cholmondeley v, Clinton 112 Crockett v. Drew 43 Christie w. Christie 75 Crockford v. Alexander 266 Church V. Marsh 230 Crossley v. Crowther 217 Clapp V. Shephard 260, 261 Crow V. Wood 237 V. Thaxter 89 Cummings v. Barrett 31,99 Clark V. Dew 235 Cunningham v. Pell 129 a. Flint 98 Curling v. Flight 148 u. Jones 262 Currier v. Esty 275 .;. Phelps 97 V. Howard 41 ^. Reed 187 191 Cutts V. Thodey 204 u. Sibley 18, 249 252 V. Tipping 78 Clarkson v. De Peyster 98 D. Clason V. Morris 185 Clayton v. Chichester 182 Daggett V. Pratt 151 Clements v. Moore 108 Dana v. Valentine 128, 133 Clouston V. Shearer 31-i Danbury v. Robinson 187 Clowes V. Higginson 195 Darrell v. Pritchard 211 Clum V. Brewer 215 Davenport v. Holland 302 Cobb V. Rice 89, 98, 189 286 Davidson v. Foley 80 Coddington v. Mott 130 Davis V. Angell 73 Colburn v. Duncombe 73 V. Davis 62 V. Simms 187 V. Gray 242 Cole II. Trull 151 V. Morris 162 Coles V. Forrest 34 u. Parker 54, 55, 300 Colt V. Brown 241 Davy V. Morgan 171 Coltart V. Ham 212 Daw V. Eley 223 Columbian Book Co. v. De Gol- Dean v. Emerson 143, 147 yer 240 242 Deane v. Home for Aged Colored Commonwealth v. Eagle Fire Ins. Women 192 Co. 244 Dearth u. Hide & Leather Nat'l Bank 132 XIV TABLE OF CASES CITED. Page Deeks v. Stanhope 37 Deerfield v. Nims 49 Dehon v. Foster 207 Den V. Wood 176 Denny v. Hancock 197 Derby Bank v. Heath 212 Desplaces v. Goris 136 Detillin v. Gale 187 Devoe u. Ithaca & Owego E. E. Co. 237 Dexter v. Arnold Dias V. Bouchaud Dimmock v. Bixby Disbrow v. Johnson Dist. Att'y V. Lynn & Boston E. E. Co. Dixon V. Wyatt Dobede v. Edwards Dolder v. Bank of England Dole V. Wooldredge Donnelly v. Ewart Doody V. Pierce Dooley v. Watson Dormer v. Fortescue Dorr V. Tremont Bank Douglas V. Slierman Douglass r. Evans Drew V. Beard Drewry v. Barnes Drury v. Natiok Duckworth v. Trafford Dwiglit V. Pomeroy Dyer v. Potter 87, 89, 150 98 92 171 40 83 219 138 25, 101 131 36, 126 80,45 97 165 85 182 153, 154 235 253 237 5, 18 187 E. Co. East & West India Dock Littledale Eastman v. Plumer Eaton V. Green Edelsten v. Edelsten Edgar v. Clevenger Ellis V. Boston, Hartford, & Erie E. E. Co. Ellsworth V. Curtis Elmendorf v, Taylor Elmer v. Lopey Emerson v. Emerson Ennor v. Barwell Ensworth v. Lambert Esty V. Clark Everett v. Prythergch Eyles V. Ward F. 92 196 249 187 80 233 103 38 36 219 231 79 192 226 230 Falcke v. Gray Fanshawe v. Tracey 197 214 Page Farley v. Blood 90 Farmer's Bank v. Beaston 240 Farnam v. Brooks 112 ,113 Farris v. Eiohardson 312 Farwell v. Sturdivant 151 Felch V. Hooper 30, 45, 60 Ferguson v. Applewhite 36 Field V. Craig 264 First Cong. Soc. in Eaynham v. Trustees, etc. 98 First Nat'l Bank v. Salisbury 34 Fish V. Miller 125 Fisher v. Fisher 221 V. Worrall 197 Fisk V. Slack 19 V. Springfield 308 Fletcher v. Keed 153 Folger V. Columbian Ins. Co. 241 Foote V. Gibson 220 Forbes v. Forbes 173 V. Memphis E. E. Co. 184 V. Stevens 130 V. Tuckerman 180, 182, 235, 286, 288, 289 Foster v. Goddard 352 V. Lamb 312 Fowle V. Torrey 48 Franklin Telegraph Co., Matter of 242 V. Greene 165 V. Keeler 137 Franks v. Martin 196^ 307^ Freeland v. Hastings Fritz V. Hobson 201 Frost V. Belmont 193, 307 Frow V. De La Vega 180, 181, 185 Frue V. Loring 252 Fuller V. Cadwell 206 V. Melrose 307 Fulton V. Golden 110 Futvoye v. Kennard 226 G. Gamble v. Johnson 167 Gardner v. Blane 234 Garland v. Garland 236 George v. Pileher 93 Gere v. Dibble 240 German Am. Ins. Co. v Davis 274 Gernon v. Boecaline 211 Gerrish v. Black 150 Gibbens v. Peeler 260 V. Shepard 71 Gibson v. Hutchinson 43 Gilmore v. Gilmore 148 Glass V. Hulbert 199, 257, 275 Glegg I'. Legh 102 Glyn V. Duesbury 89 Godfrey v. Tucker 80 TABLE OP CASES CITED. XV Page Going V. Emery Goldsmith v. Goldsmith Gordon v. Clapp V. Green 17. Hobart V. Simpkinson Gould !'. Kemp Gove V. Lyford Graham v. Coape Granger v. Bassett Grant v. Bryant V. Lathrop Gray v. Campbell V. Duke. of Northumberland Green v. Chelsea V. Thomson Greenleaf v. Queen Greenwood v. Atkinson Gregory v. Spencer Grew V. Breed Griggs V. Gear Grimer v. March Groom v. The Atty .-General Grover and Baker Sewing Machine Millard 39 226 250 93 149, 150, 152 95 197 79 103 292 244 206 227 266 171 227 79 134 218 226 88 188 179 179 H. Hagan v. Walker Haggitt V. Iniff Haig V. Homan Haight V. Lucia Hall V. McPherson V. Whiston Hallett V. Cumston Hamersly v. Brown Hamilton v. Marks Hammond v. Messinger Handford v. Storie Hanson v. Paige Hardwick o. Bassett Harmer v. Gooding Harmon v. Howe Harris v. Fly t'. Mackintosh Harrison v. Cockerell Hart V. Small V. Ten Eyck Harvey v. DeWitt Haskins v. Burr Hastings v. Palmer Hawley v. Donnelly Hayes v. Harmony Grove Haynes v. Ball Hays V. Cornelius Haywood v. Cope Hazard v. Durant Heard v, March Heam v. OgUbie 74 174 87 215 218 350 268 176 90 35 218 313 167 95 212 152, 231 158 214 232 144, 168 282 267 219 174 Cemetery 200 227 235 198 224 83 62 Page Heath v. Ellis 42 Henn v. Walsh 234 Hennet v. Luard 218 Hepburn v. Auld 200 Hertell v. Van Buren 110 Hewett V. Adams 130, 284 Heywood v. Miner 153 Hickok V. Farmers' & Mechanics' Bank Higinbotham v. Burnet Hill V. Hersey V. Sayles Hills V. Parker Hilliard v. Allen Hine u. New Haven Hodges V. Pingree V. Saunders Hoffman v. Livingstone o. Postill V. Skinner Hogan V. Buck Hoitt V. Burleigh Holabird v. Burr Holden v. Upton Holderness v. Bankia Hood V. Clapham IK Inman V. Lynn V. Oglander Hooper v. Hooper V. Winston Hopper V. Hopper Horner v. Horner Houghton V. Field V. Kendall Howe V. Kussell V. Willard Howells V. Wilson Hoxie V. Carey Hubbard v. Shaw Hudson V. Trenton Locomotive Co. Huffman v. Barkley Hughes V. Blake V. Williams V. Wynne Hulbert v. McKay Humes v. Scruggs Humphrey v. Baker Humphreys v. Humphreys Hunt V. Rousmanier Hurd V. Everett Huston V. Cassidy Hutcheon v. Mannington Hyde v. Wason 175 96 313 266 239 258 219 264 41 231 138 188 35 162 150 241 76 78 137 307 197 92 234 116 129 313 93 132, 150 215 77 219 150 149 173 125 150 151 148 126 287 131 359 131 153 174 92 lasigi V. Brown 347 V. Chicago, Burlington & Quincy R. R. 190 XVI TABLE OF CASES CITED, Page Paoe Ingraham v. Dunnell 42, 208 Lashly v. Hogg 218 Innes v. Lansing 218, 238 Latouche v. Dunsany 78 Isnard v. Cazeaux 232 Lautour v. Holcombe 218 Lawrence, petitioner 252 V. Austen 214 J. Lea V. Robeson 95 Learned v. Poster 290 Jackson v. Ashton 73 Lee V. Kirby 198 V. De Forest 243 Leonard v. Jamison 92 V. Jackson 144 Lester v. Poxcroft 199 V. Phillips 39, 40, 258 •Lett. V. Randall 184 V. Riga Railway 221 Leuty V. Hillas 204 V. Stiles 231 Levert v. Redwood 152 James v. Cresswicke 62 Levi (1. Karrick 236 V. James 138 Like V. Beresford 231 Jaques v. Hall 81 Lincoln v. Bassett 312 V. Millar 201 V. Eaton 287 Jefferys v. Smith 246 V. Rutland & Burlington R. R. Jenkins v. Andrews 308 Co. 89,91 V. Eldredge 89 Linzee v. Mixer 306 Jerome v. Jerome 90 Livingston v. Hubbs 89 V. Ross 211 Livingstone v. Kane 221 Jervis v. Berridge 199 V. Story 96, 110 Jesser v. Gifford 42 Lloyd V. Brewster 129 Johnson v. Tucker 137 V. Johnes 83 Jolly V. Carter 136 V. Passingham 235 Jones V. Green 277 Locke V. Bennett 267 V. Keen 102, 147, 244 Loker v. Rolle 95 V. Magill 210 London & Blackwall Ry. Co V. V. Mason 188 Limehouse District 231 V. Newhall 19, 22, 23, 27 Long V. Bowring 198 V. Strafford 97 V. Majestre 74 Jopling V. Stuart 62 Lord V. Harte 269 Lord Walpole v. Lord Orford 196 Loring v. SaUsbury Mills 303 K. V. Thorn dike 192 Lorton v. Seaman 230 Kellogg V. Rockwell 150 Lowe V. Morgan 36 Kennedy v. Edwards 225 Lowell V. Daniels 250 Kenyon v. Clarke 207 Lowndes v. Collens 151 Kershaw v. Thompson 226 Lozier v. Van Sann 89 Keyes v. Brush 236 Lucas V. Lucas 138 King V. Bryant 226 Lyman v. Bonney 49 V. Corke 808 Lyon V. Tallmadge 129 V, Hamilton 203 Kinmouth v. Brigham 192, 853 Kipp V. Hanna 131 M. Knapp V. Burnham 150 Koontz ». Northern Bank 240 Mackenzie v. Mackenzie 226 Krehl v. Burrell 209 Macomber v. Jaffray 45, 314 Magennis v. Parkhurst 216 Mallow V. Hinde 88 L. Mandell v. Green 192 Manners v. Furze 234 Lamare v. Dixon 196 Marble Co. v. Ripley 197 Lancaster v. Choate 312 Marine Ins. Co. v. Hodgson 206 Landon v. Morris 235 Mason v. Daly 293 Langford v. Pitt 200 V. Lewis 293 Langham u. Great Northern Rail- 0. York & Cumberland E R. way Co. 214 Co. 80 TABLE OF CASES CITED. XVll Page Massachusetts Iron Co. v. Hooper 313 Massie v. Graham 88 Wavor V. Dry 130 May V. Parker 73, 101 Maynard r. Brown 197 Mayor v. Murray 150 Maxham v. Day 260 MeCabe v. Bellows 36, 47 McCampbell i;. Gill 167 McCormick r. Chamberlain 138 McCrackan v. Valentine 148 McDonald v. Mobile Life Ins. Co! 184 McFeely v. Scott 290 Mclntyre v. Union College 136, 137 McKewan v. Sanderson 135 McLellan v. Osborne 130 JIcNeil V. Ames 263 MoSorley v. Larissa 150 JNIead v. Day 167 Meadon v. Sealey 237 Mears v. Dole 131, 303 Merchants' Bank v. Stevenson 102 Merriam v. Barton 150 V. Sewall 313 Merrifield v. Lombard 209 Merryfield v. Jones 212 Metcalf V. Cady 279 V. Harvey 90 Methodist Episcopal Church v. Jaques 117, 187 Michigan State Bank v. Gardner 33 Miles V. Gore 260 MUkman v. Ordway 144, 172, 202 Mill River Loan Fund Association V. Claflin 100, 284 Miller v. Henderson 36 V. Lincoln 149, 191, 194 V. Wright 183 Millington v. Fox 186 Mills V. Hoag 80 Milner v. Harewood 79 Milwaukee & Minnesota E. E Co. V. Soutter 242 Mitchell K. Bunce no V. Green 276, 305 V. Lowndes 219 Mitford V. Tyler 77 Mohawk & Hudson E. E. Co. v. Clute 91 Montague v. Boston & Albany E. R. Co. 149 V. Phillips 194 Montgomery v. Pickering 286 Moody V. Gay 30, 45 Moon V. Little 31 Moore v. Lyttle 99 Moreton v. Harrison 124 Morgan v. Marsack 89 V. Morgan 200, 203 V. N. Y. & Albany E. E. Co. 130 Page Morris v. Mass. Mut. Life Ins. Co. 271 Jlorse V. Stearns 192 Mountfort, Ex parte 237 Mowry v. Bishop 151 Mudget V. Wells 36 Muldoon V. Muldoon 93 Munroe i: Ward 314 Murdock's Case 134 207 Murray v. Dehon 85 311 u. Elston 175 V. Lord Elibank 81 Mutter V. Chauvel 80 N. Nail V. Punter Nash V. N. E. Mut. Life Ins. Co. National Bank v. Sprague National Mahaiwe Bank v. Barry 134 267 154 256, 288 208 167 236 34, 101, 284 167 Neale v. Cripps V. Hagthorp Nelson v. Conner V. Ferdinand r. Pinegar Neshara v. Selby 198 New England Bank !.'. Lewis 168 New South Meeting House, Matter of 242 Newell V. Homer 288 Newton v. Baker 153 V. Eicketts 226 V. Thayer 104, 125 Nichols i\ Ela 154 V. Williams 37, 204 Norris v. Lynch 301 Norton v. White 220 Norway v. Rowe 246 No well ".Boston Academy of Notre Dame 290 Noyes v. Sawyer 36 0. Oakley v. O'Neill 178 O'Brien v. Lewis 225 Ogden V. Fossick 201 O'Hare v. Downing 101, 126, 285 Oldaker v. Hunt 209 O'Mahony v. Belmont '2'V'> Ontario Bank v. Schermerhorn l-TO Ord V. Noel 89 Orton V. Bainbridge 218 Owen y. Homan 234 XVlll TABLE OF CASES CITED. Page Paige D.Smith 239 Park V. Johnson 191, 200 Parker v. Barker 90 V. Browning 238 V. Dunn 244 V. Flagg 289 V. Francis 231 V. Grant. 183 V. Nightingale 267 Parks V. Bishop 290 Parr v. Lovegrove 200 Partridge v. TJsborne 88 Patch V. Ward 187 Peabody v. President and Fellows of Harvard College 279 Pearce v. Morris 187 V. Wrigton 220 Pedrick v. White 82 Pendleton v. Evans 178, 180 Penniman v. T'reeman 313 Pennington v, Brinsop Hall 209 Pennsylvania o. Wheeling Bridge Co. 210, 214 Penny v. Beavan 218 People V. Albany & Susquehanna R. R. Co. 162 Percival v. Caney 134 Perkins v. Nichols 167 Perry v. Parker 214 V. Phelips 87 Phelps V. Prothero 201, 208, 207 V. Sproule 86 Phillips V. Clark 83 PhcBnix Ills. Co. v. Abbott 270, 271 Pinch V. Anthony 82 Pingree v. Coffin 30, 144, 153, 172, 201, 351 Pitts V. Tilden 151 Plymouth, Countess of, «. Bladon 222 Pond V. Frainingham & Lowell K. R. Co. 272 Pool V. Lloyd 263 Poor V. Carleton 214, 215 Pope V. Leonard 282 Porter v. Spencer 211 V. Vaughn 220 Potter V. Jacobs 199 V. Stevens Machine Co. 262 Potts V. Leighton 245 V. Whitmore 224 Powell V. Kane 174 Powers V. Mayo 198 Pratt V. Bacon 19, 191 V. Pond 21, 279 Price V. Berrington 220 V. Salusbury 200 Proctor V. Heyer 93 Provident lust, for Savings v. White 91,93 Putnam v. CoIIamore V. Putnam Q. Page 93 84 Quarrell v. Beckford 235 Quinn v. Brittain 235 V. Leake 219 V. Roath 196 R. Radley v. Shaver Rand v. Redington Rapliael v. Boehm Rathburn v. Warren Rau V. Von Zedlitz Reed v. Reed V. Wliitney Remnant v. Hood Remsen v. Remsen 150, 203, 144, 147, Rhode Island i>. Massachusetts 104, Rice V. Hale 58, V. Stone Richards v. Richards V. Salter V. Todd Richardson v. Waller Richmond v. Gray Riddle v. Mandeville Ridgeley v. Inglehart Roberts v. Ball V, Knight V. Marchant Robinson v. Campbell V. Guild V. Townshend Rockwell I'. Folsom Roe V. Davies Rodgers v, Rodgers Rogers v. Goore V. Patterson V. Rutter V. Vosburgh Root V. Railway Co. Rose V. Calland V. Woodruff Ross V. Harper Rossiter v. Miller Rowe V. Teed 77, 104, Russ V. New England Ins. Co. Russell V. East Anglian Ry. Co. 0. Deslion V. Lathrop 178, V. Lowering 98 V. McClellan , V. Southard 232 206 151 22 272 286 257 186 152 105 2il 268 36 189 77 149 200 35 231 225 38 203 21 96 180 173 803 130 125 226 305 222 162 188 178 206 198 105 159 223 315 ,180 1, 102 141 150 TABLE OF CASES CITED. XIX Eutter V. Tallis Eyves v, Ryves Page 239 95 St. John V. Benedict 196 V. St. John 136 St. Louis Life Ins. Co. o. Alliance Mut. Life Ins. Co. 91 Salmon v. Clagett 94 Salomon v. Stalman 231 Salters v. Tobias 105 Sanborn v. Adair 167 V. Dwinnell 285 V. Sanborn 131 Sanford v. Sinclair 237 Sanger v. Bancroft 269 Saunders v. Frost 79, 84, 110, 186, 187, 191 Sawyer v. Baldwin 192 V. Hovey 321 Schlesinger v. Sherman 270 Schoonmaker v. Gillett 215 Scott V. Nichol 35 Scoville V. Kinsley 263 Seamans v. Gibbs 293 Search v. Search 73 Sears v. Hardy 34 Sewall V. Eastern E. E. Co. 257 V. Sewall 193 Shaeffer v. Chambers 150 Shannon v. Shannon 292 Shaw V. Chester 90 <.. Coster 89, 90 V. Norfolk Co. E. E. Co. 34, 250 V. Wright 226 Sheldon v. Adams 241 Shephard v. Merrill 131 Shields v. Barrow 33, 76 Silloway v. Columbia Ins. Co. 268 Simmons v. Wood 240 Simpson, Ex parte 136 V. Brewster 218 Sims V. Lyle 108 Slack V. Black 99 V. Walcott 86 Smith V. Babcock 129, 1-32 V. Baldwin 131 V. Cunningham 185 r Henley 171 V. Lowe 243 f. St. Louis Mut. Life Ins. Co. 1.38 V. Smith 134 V. Townsend 289 67. Trimble 184 V. Williama 32, 34 Snell V. Dwight 287 Snow V. Wheeler 42 SoUory v. Leaver 236 Page Soltau V. De Held 208 Somerby v. Buntin 200, 258, 290 South Wales Ry. Co. v. Wythes 201 Sparhawk v. Sparhawk 286 V. Wills ■ 153 Spaulding v. Farwell 136 Speer v. Crawter 95 Spence v. Hogg 204 Spinning v. Ohio Life Ins. & Trust Co. 236 Spottiswoode v. Clark 211 ■■Spurr V. Benedict 206 V. Scofield 29 V. Scoville 45 Stafford v. Brown 140 Stagg V. Knowles 219 Standish v. Parker 112 State V. Levy 174 V. Mclnlyre 153 Stevens v. Brett 218 Stewart v. Duvall 138 Stockbridge Iron Co. i^. Cone Iron Works 31, 282, 288 Stockbridge Iron Co. v. Hudson Iron Co. 156, 157, 165, 190 Stone t'. Buckner 204 V. Locke 186, 187 Storm V. Waddell 236 Story V. Livingstone 144, 154 Strickland v. Fitzgerald 260, 261 Strike's Case 176 Sturtevant '■. Jaques 200 Sullivan v. Finnegan 314 Suter V. Matthews 23, 27, 274 Sutphen v. Fowler 187 Swamscott Machine Co. v. Perry 280 Swan V. Horton 43 Swinborne v. Nelson 117 Talmage v. Pell 241 Tamplin v. James 201, 304 Tarbell v. Bowman 102 Tash V. Adams 306 Taylor v. Eeese 35 V. Salmon 227 Tench v. Cheese 137 Terrell v. Higgs 207 V. Merrill 19 V. Souch 227 Thames & Medway Canal Co. v. Nash 92 Tharpe v. Tharpe 236 Thayer v. Union Tool Co. 262 Third Ave, Sav. Bank v. Dimock 134 Third Natl Bank of Boston v. S. W. & B. Lumber Co. 90 Thomas v. Oakley 265 XX TABLE OP CASES CITED. Page Thompsen v. Diffenderfer 234 Thompson v. Bemis Paper Co. 262 V. Goulding 291 V. Judge 79 V. Thompson 217 Thornton v. Marginal Freight Ey. Co. 269, 272 Thorpe v. Macauley 102 Tilhnghast v. Chaniplin 132 Tilton V. Tilton 131 Tisdale v. Brabrook 315 Tobey v. McFarliu 269 Todd V. Gee 201 Tomlinson v. Ward 187 Tompkins v. Wyman 315 Topliff u. Jackson 281 Torr V. Torr 184 Toulmin v. Raid 92 Towle V. Pierce 36, 46 Townsend v. Carpenter 35 Tread well v. Cordis 92 Trow V. Berry 153 V. Lovett 277 Troy V. Sargent 271 Troy & Greenfield E. E. Co. v. Com- monwealth 251 Trnlock v. Robey 87 Trust & Fire Ins. Co. v. Jenkins 184 Tworl V. Tworl 266 Turner v. Enrille 110 Tyng V. Thayer 147 Tyrrell v. Washburn 191 U. Underbill v. Van Cortlandt 175 Underwood v. Hitcheox 196 Union Bank of Georgetown v. Geary 119 United States v. Duluth 214 Vancouver v. Bliss 187 Van Hook v. Throckmorton 80 Van Rensselaer v. Brice 136, 138 Vermilyea v. Odell 219 Verplank v. Mercantile Ins. Co. 237 Voorhees v. De Myer 200 Vose V. Philbrook 36 Voshell V. Hynson 234 w. Wakefield v. Duke of Buccleugh 218 Walbert v. Harris 243 Page Walburn v. Ingilby 73 Walker v. Brooks 35, 268, 270, 276 V. Locke 99 Walling V. Beers 31, 46 Wallis V. Wallis 218 Walpole, Lord, v. Lord Orford 196 Walsh V. Smyth 131 Ward V. Hill 159, 165, 288 V. Peck 276 . V. Ward 219 Warren v. Swinburn 174 Weaver v. Livingstone 184 Webb V. Pell 88 Webber v. Gage 208 Webster v. Webster 168 Wendell, Matter of 358 West Midland Ry. Co. v. Nixon 203 Western R. R. Co. v. Babcock 198 Whitaker v. Wright 148 Whitcomb v. Taylor 311 Whiting V. Bank of U. S. 87, 88 Whitmarsh v. Campbell 130 Whittemore v. CoweU 46 Whitten v. Wliitten 190 Wiggin V. Heywood 277 Wilcox V. Foster 275 V. Wilcox 192 Wild V. Dean 48 Wilkins v. Naimby 227 WiUiams v. Hart 259 V. Leech 37 V. Roberts 206 V. Winans 79, 80 Williamson v. Jeffreys 80 V. Sykes 183 V. Wilson 244 Willison V. Watkins 112 Wilson V. Bates 218 y. Church 298 V, Leishman 29 V. Wintermate 134 Winchester v. Winchester 286, 291 Wing V. Davis 36 V. Fairhaven 214 Winham v. Crutcher 184 Winn V. Albert 80 V. Paterson 171 Winthrop v. Farrar 130 Wiser v. Blachly 89 Wonson v. Fenno 259 Wood V. Mann 176 V. Sutcliffe 208 V. White 204 V. WiUiams 35 Woodman v. Saltonstall 19, 101 Woods V. Morrell 75, 137 Woodward v. Phillips 150, 193 Woodyatt v. Greley 237 Wooster v. Woodhull 62 Wooten V. Burch 95 TABLE OF CASES CITED. XXI Page Wright V. Dame 48, 72, 96, 100, 191, 252 V. Eaton 206 V. Plumptre 96 V. Wright 235, 289, 293 Wyman v. Babcock 354 Wynu V. Lord Newborough 238 Page Yeager v. Wallace 241 York Manuf. Co. v. Cutts 95 Young IS Grundy 167 V. Rathbone 200 V. White 105 Note. — After this look was in type, St. 1885, c. 384, re- lating to return days and to practice in the Supreme Judicial and Superior Courts, was passed. Tlie act abolishes the terms of the courts as heretofore established, and makes the first Monday of every month a return day for all processes in civil suits. EQUITY PLEADINGS AND PRACTICE. INTRODUCTION. The system of equity jurisprudence now existing in this Commonwealth has been the slow growth of the century which has passed since the adoption of the State Constitution in 1780. It is the joint product of legislation and judicial decisions. During the Colonial and Provincial periods, juris- diction in equity, more or less extensive, was exercised by the General Court, or by other courts created by that Court. One of the latest acts of the Colonial government, before its charter was abrogated, was the establishment of a court with very general jurisdiction in equity; and one of the earliest acts of the Provincial government, under the new charter, was to create a High Court of Chancery, to be held by the Governor, or such other person as he should appoint Chancellor, to be assisted by eight or more of the Council. This act, passed in 1692, was disapproved by the King in 1699, and no other court of like powers was ever after estab- lished in the Province ; and a separate court of equity has never been created here since the adoption of the State Con- stitution. A statement of the course of legislation enlarging the equity powers of the courts of common law, in con- nection with an examination of the decisions of the full court thereon, will, it is believed, be found useful ; both as illustrating the gradual rise and progress of the jurisdiction in 2 BQUITY PLEADINGS AND PKACTICE. equity now possessed by our courts, and also as showing the origin and reasons for the peculiarities found in that juris- diction, and by which it is distinguished from that of the English Court of Chancery. Any system of law can be better understood by observing the principles of its growth and gradual development ; and to a right understanding of the decisions of courts founded on statutes, it is of course essential to observe the exact state of the statute law during the time covered by the decisions. Judge Story, at the close of his sketch of the origin and history of Equity Juris- diction in England, says : " Without some knowledge of the origin and history of equity jurisdiction, it will be difficult to ascertain the exact nature and limits of that jurisdiction, and how it can or ought to be applied to new cases as they arise. If it be aii arbitrary or usurped jurisdiction, standing upon authority and practice, it should be confined within the very < limits of its present i'ange. But if its jurisdiction be legiti- mate, and founded in the very nature of remedial justice, and in the delegation of authority in all cases where a plain, com- plete, and adequate remedy at law does not exist in any other court to protect acknowledged rights and to prevent acknowl- edged wrongs, then it is obvious that it has an expansive power to meet new exigencies. And the sole question ap- plicable to the point of jurisdiction must from time to time be, whether such rights and wrongs do exist, and whether the remedies therefor in other courts, and especially in the courts of common law, are full and adequate to redress." The chancery powers exercised by the courts in existence at the time of the adoption of the Constitution were very limited, extending only to granting relief in cases of mortgages and penal bonds.^ By St. 1785, c. 22, it was provided that, in all causes brought before the Supreme Judicial Court or Court of Common Pleas to recover the forfeiture annexed to any articles of agreement, covenants, contract, or charter-party, » 3 Gray, 282. INTEODDCTION. 3 bond, obligation, or other specialty, or forfeiture of real estate upon condition, by deed of mortgage, or bargain and sale with defeasance, when the forfeiture, breach, or non-performance shall be found by the jury, by the default or confession of the defendant, or upon demurrer, the court shall make up judg- ment therein for the plaintiff, to recover so much as is due according to equity and good conscience ; with authority to grant conditional judgments in real actions on mortgages or bargain and sale with defeasance. This was the first act under the Constitution touching the equity jurisdiction of the courts, although the earlier Sts. of 1783, cc. 32, 34, author- ized the justices of either court to grant licenses to executoi-s, etc. to do what by a later statute the court could in equity compel them to do. St. 1798, c. 77, provided that mortgagors or vendors by bargain and sale with defeasance, or other persons lawfully claiming under them, might have his bill in equity to redeem lands and tenements upon which the mortgagee or vendee, or other person claiming under them, had lawfully entered and obtained actual possession. The seventh section of the act repealed certain English statutes which related to the equity jurisdiction of the courts of the Province, in suits on mort- gages, etc. These repealed statutes had been adopted by the Provincial government, and were continued in force under the State government by the sixth article of the sixth chap- ter of the Constitution. By St. 1817, 0. 87, the equity jurisdiction of the Supreme Court was extended to cases of trusts arising under deeds, wills, or in the settlement of estates, and to all cases of con- tract in writing where a party claimed specific performance of the same, and in which there was not a plain, adequate, and complete remedy at law. The act in terms applied only to such contracts as were made in writing after its passage. This may very properly be regarded as the first important act in a series of statutes, extending over a period of sixty 4 EQUITY PLEADINGS AND PEACTICB. years, conferring upon the Supreme Court full chancery powers. The last act in the series is that of 1877, c. 178, which provides that the court shall have jurisdiction in equity in all cases and matters of equity cognizable under the general principles of equity jurisprudence, and in respect of all cases and matters shall be a court of general equity jurisdiction. It will be observed that the statute of 1817 extended the jurisdiction of the court to two classes of cases, viz. to trusts and specific performance of written contracts. The jurisdiction over trusts was, however, limited to trusts arising under deeds, wills, or in the settlement of estates. This limitation as to the origin of trusts was omitted in the revision of the statutes in 1836, and the jurisdiction of the court was extended to all trusts, whether they related to personal or real estate. Notwithstanding this enlargement of the equitj'' powers of the court by the statute of 1817, and others subsequent to that and prior to the adoption of the General Statutes in 1860, the practice on the equity side of the court was very limited ; so much so, that, as late as 1855, the court, in deciding an impor- tant cause in chancery, said : " The exercise of any chancery powers by this court beyond that of relief in cases of mort- gages and penal bonds is comparatively recent in origin, and has been exercised with a cautious hand, and with strict refer- ence to the class of cases named in the statutes." And by this very strict construction of statutes relating to the equity jurisdiction of the court, it has been thought, the practical exercise of this most efScient branch of remedial justice has been kept within bounds, quite as narrow, to say the least, as Were contemplated by the Legislature. In one of the earliest cases arising under St. 1817, c. 87, the court give their rea- sons for adopting the rule of strict construction in relation to statutes granting equity powers to the court. They say : " Whatever may be the policy of refusing to establish a tri- bunal with full chancery powers, we cannot avoid perceiving that such powers are looked upon with no inconsiderable rNTEODTJCTION. 5 jealousy ; and that the authority which is given to this court was intended to be limited to the subjects expressly mentioned in the statute." ^ And in a case decided seven years later (1828) the court adhere to the same reasons for strict construction, and say : " We consider each act of the legislature which has successively granted that power [chancery] as specific in its nature, and that the powers are not to be extended to cases or subjects not expressly designated, because we are bound to suppose that it was intended to limit the new jurisdiction to such cases only as had been determined to require its application." ^ St. 1818, 0. 98, gave further remedies in equity. 1. For making an assignee of a mortgage a party to a suit for redemption. 2. Authorizing the court to enter judgment and award execution for the amount equitably due for rents received beyond the amount expended for repairs. 3. That amounts received for rents, etc. might be deducted from the sum brought into court in suits for redemption of lands. St. 1818, c. 122, vests in the court full chancery powers to entertain a bill for discovery, and to adjust losses, damages, etc. between several freighters, etc., jointly interested in the same subject matter. St. 1821, c. 85, provided that an offer in a bill for redemp- tion to pay the sum justly due should be equivalent to a ten- der before suit, if the mortgagee refused to state his account ; and that the mortgagor might have his bill to redeem, though the mortgagee had not entered for condition broken. St. 1823, c. 140, conferred upon the court a very material ilicrease of equity jurisdiction. 1. That in all cases where goods, deeds, bonds, notes, bills, etc., or other personal pro- perty of any person, shall be taken or detained from him or secreted, so that it cannot be replevied, the court may, on 1 Dwight V. Pomeroy, 17 Mass. 327. ^ Charles River Bridge v. Warren Bridge, 6 Pick. 395. 6 EQUITY PLEADINGS AND PEACTICB. bill, petition, or complaint, order the same to be delivered vip, or compel such discovery and make such orders, injunc- tions, and decrees as equity seems to require. 2. To hear and determine in equity all disputes between copartners, joint tenants, and tenants in common, and their legal representa- tives, in cases where there is not an adequate remedy at law, and may compel discoveries, and make all orders, injunctions, and decrees as equity may require. St. 1823, c. 109, provided, that motions might be heard by a single justice in term time or vacation ; that motions for interlocutory decrees should not be heard without notice to adverse party; that the court might appoint masters in chancery ; that costs in all suits in equity should be wholly within the discretion of the court. St. 1827, c. 88, gave the court, for the first time, power to grant relief in equity in cases of waste and nuisance. Before this, the only remedy for private nuisance was by action at law. Public nuisances might then, as now, be the subject of indictment, but could not be proceeded against by bill, as under this statute. St. 1828, ccv 60 and 96, gave further remedies in equity in relation to receivers appointed by the court, and in behalf of stockholders of banks who had been obliged to pay a debt of the bank. St. 1829, c. 121, authorized the court to issue injunctions against cutting wood and timber and carrying the same off, or any fixtures, from attached premises. St. 1832, c. 162, gave the court authority to hear and deter- mine in equity all controversies between co-executors and co- administrators, and between their legal representatives. St. 1833, cc. 60 and 145, provided that, if the complainant in an equity suit was not an inhabitant of the State, the bill should be indorsed bj-^ a responsible inhabitant of the State ; and gave the court authority to appoint trustees to collect outstanding claims of insurance companies whose charters INTEODUCTION. 7 have expired, and granted the court jurisdiction in equity of all questions arising under such trusts. St. 1835, c. 48, gave the court power to determine in equity all questions between copartners in any limited partnership, and between said partners and any creditor of the firm. By St. 1835, c. 146, the court had power in equity to deter- mine what compensation a married woman should receive for her real estate taken for public use. Upon the revision of the statutes in 1836, the several acts theretofore passed relating to the general equity powers of the court were embodied in chapter 81 of the Revised Stat- utes, with some modifications and additions. Section 8 of that chapter extended the provisions of former statutes to all trusts relating to personal property, however such trusts may be created. The fifth clause of that section, relating to contribution between legatees, etc., was new. Clause 4 omits the enumeration of particulars contained in the original St. 1823, c. 140, for the reason, as stated by the Commission- ers, that the enumeration, not being complete, may raise doubts as to the particulars that are not included in it ; it being apparent from the whole that the words " goods and chattels," used therein, were intended to comprehend, not only the several particulars immediately following them, but many others not mentioned. R. S., c. 44, extended to the court the same powers over all corporations whose charters have expired or been an- nulled as were given to the court over insurance compar nies by St. 1833, c. 145 ; and also provided that, when the officers or members of a corporation, or any of them, are liable for debts of the corporation, or for any acts of such officers or members, respecting the business of the corpora- tion, and also when any such officers or members are liable to contribute for money paid by any other of them on account of any such debts or acts, the money may be recovered by a bill in equity, and the court may make all orders and decrees 8 EQUITY PLEADINGS AND PEACTICE. that may be necessary to do justice between the parties. This was new legislation at the time of the enactment of the Revised Statutes. E. S., c. 69, §§ 11, 12, were a codification of Sts. 1817, c. 190, § 25, and 1820, c. 54, § 3, with the addition of the express provision that the Supreme Court and the Probate Court might hear and determine in equity all (other) matters relating to the trusts mentioned in said c. 69. If two or more heirs, devisees, or legatees were liable for a debt of a de- ceased debtor, the creditor might recover the same by bill in equity. See St. 1788, c. 66. By R. S., c. 74, the conveyance of real estate by the heirs of one who had contracted in writing to convey it, but died before the conveyance took place, was made compulsory, in- stead of permissive, as under the earlier statutes, and such conveyance could be enforced in equity. R. S., c. 101, provided for adjusting in equity controversies between a demandant in a writ of equity, claiming onlj"- a life estate, and the reversioner, respecting payments made by such demandant to the tenant for improvements. This pro- vision was new. R. S., c. 116, provided that one joint mill-owner might, by bill in equity, recover of another owner a proportional share of the expense the first may have paid for repairs or rebuild- ing. By the early St. of 1795, c. 74, it was provided that an action at law would lie to recover such proportional share. R. S., c. 118, abolished the action of account, and substi- tuted therefor a bill in equity, when the account could not be conveniently adjusted in an action at law. After the adoption of the Revised Statutes, the legislature continued from time to time to enlarge the equity jurisdiction of the court. St. 1838, c. 14, authorized the court to restrain by injunc- tion insolvent banks from proceeding with their business as banking corporations. See also St. 1843, c. 98. INTKODUOTION. 9 St. 1838, c. 163, § 18, gave the court general jurisdiction of all cases arising under that act for the relief of insolvent debtors. By St. 1845, c. 64, the court was authorized, upon bill or petition, to decree the sale of estates held in trust by minors, insane persons, femes covert, or other persons out of the Com- mon wealth. And by St. 1846, c. 242, the court, in exercising its jurisdiction over trusts relating to real or personal estate, shall have power to order sale and investment and reinvest- ment of the proceeds of such sale. By St. 1851, c. 14, the court had power in equity to com- pel the sale and conveyance of equitable estates tail. And by c. 206 of the same year, the court acquired jurisdiction in equity upon a bill by a creditor to reach and apply, in pay- ment of a debt due from any debtor not residing in this State, any propertj', right, title, or interest, legal or equitable, of such debtor within this Commonwealth, which could not be come at to be attached or taken on execution in a suit at law against such debtor. By St. 1852, c. 312; it was provided that, in all proceedings in equity, the evidence should be taken in the same manner as in suits at law, unless otherwise ordered by the court. Several acts, authorizing the court to issue injunctions in special cases, have been passed over without notice, as it did not seem important to include them in this review of legisla- tion respecting the general chancery powers of the courts. By St. 1853, c. 371, actions of contract and tort were sub- stituted for suits in equity, in which the facts and circum- stances of the case were to be set forth, so far as might be necessary, and accompanied with a prayer for relief in equity. It will be noticed that this act describes, substantially, a bill in equity, but calls it an action of tort or an action of con- tract ; for what more is required in a bill in equity than to set forth the facts and circumstances of the case, and pray for relief ? This act was part of the second report of the commis- 10 EQUITY PLEADINGS AND PEACTICB. sioners appointed in 1849 to revise and reform the proceed- ings in the courts of justice in this Commonwealth, except in criminal cases. This their second report was made in 1853. Their first report, which related to actions at law, was made in 1851. In the second report they say : " Only a very lim- ited chancery jurisdiction has ever existed in this State, and the procedure in chancery is in a broken and fragmentary condition. The rules of the court regulating this procedure are partly conformable to those which have existed in Eng- land, partly to those of the Circuit Courts of the United States, and partly peculiar to this State, and are necessarily imperfect, and still more imperfectly understood by practi- tioners ; and we believe it will be a great improvement in the administration of the law to enable litigant parties to obtain equitable as well as legal remedies under a system of plead- ing, practice, and evidence that shall be so nearly uniform." Would it not have been as easy a task to revise and reform the procedure in equity, as to reform that of the common law, as has since that time been done ? By undertaking to com- bine both systems in one, as the commissioners did, there was danger of introducing needless complications and obscurity in both. It would have been better to abolish both systems, as has been done in some States, and provide that all suits might be commenced by a simple complaint or petition. Or, better still, to adopt the present English practice, according to which all suits in equity are commenced by a proceeding called an action, in which the nature of the claim is described. And this is afterwards followed by what is called a statement of claim, in which the plaintiff's case is fully stated, and this is delivered to the defendant, and is that to which he is called upon to make his statement of defence. There is no attempt under this system to abolish the distinctions between law and equity. But the proceedings in equity are stripped of all needless formalities, and rendered as simple as the nature of the subject will admit. rNTKODXJCTION. 11 A few years' experience proved sufficient to disclose the imperfections of our reform legislation of 1853, and the im- perative shall of that act was changed to may, and the law on this subject left as it now stands in the Public Statutes, c. 151, § 5, which provides that cases in equity may be commenced by bill, etc., or by declaration in an action of contract or tort. Pleadings in actions at law and in equity are designed to accomplish precisely the same purpose, and can be made equally plain and intelligible. The rules of evidence under both systems are the same, and all questions of fact are provable in the same manner and may be tried by the same tribunals. The orders and decrees in equity can, in many controversies, be better adapted to the exigencies of the case, and be made to work out more complete and exact justice than can be done by judgments in actions at law. And this distinction will continue to exist by whatever name the proceedings may be designated, and therefore nothing can be gained by undertaking to transform a bill in equity into an action at law. It is from an unchangeable difference in the ends sought that diversity results in the forms by which these ends are attained. The commissioners, in concluding their report, say that " experience leads to the belief that almost all that is valu- able in the principles of equity may safely and conveniently be withdrawn from the complicated and forbidding system of equity procedure and incorporated into suits at common law, where the procedure is simple, plain, and familiar." The reform recommended by the commissioners has since been substantially accomplished, not, however, in the manner recommended, but by making the " complicated and forbid- ding system of equity procedure " simple, plain, and easily understood by any student who will devote as much study and thought to the subject as is necessary to acquire a com- petent knowledge of any respectable system of pleading in actions at common law. 12 EQUITY PLEADINGS AND PEACTICE. St. 1855, c. 194, granted to the court, for the first time, jurisdiction in equity in all cases oi fraud and of conveyances or transfers of real estate in the nature of mortgages. The same act provided that discovery might be sought by bill or by being made part of the declaration, or by interrogatories, as was provided bj"- St. 1852, c. 312. By St. 1856, c. 38, the equity jurisdiction of the court was extended to all cases of accident and mistake. This act marks another material advance in the development of the full equity powers now exercised by the courts of this Common- wealth. Further progress was made in the same direction by the St. 1857, c. 214, granting full jurisdiction in equity to the court, according to the usage and practice of courts of chancery, in all cases where there is not a plain, adequate, and complete remedy at law. The last and qualifying sen- tence in this act will be found in all the acts of the legisla- ture granting equity jurisdiction to the court. And by the very strict construction the court has always given to this qualifying clause, the practical exercise of its chancery powers has been, until a comparatively recent pe- riod, kept within very narrow limits. St. 1859, c. 237, was an act to regulate proceedings in equity. It was, in fact, an attempt on the part of the legislature to frame rules of prac- tice for the court, instead of allowing the court under general authority to make its own rules. The provisions of this act may be found in existing statutes, or in the revised code of rules recently adopted by the Supreme Court. Upon the revision of the statutes in 1860, most of the pro- visions of prior statutes respecting the general equity juris- diction of the court were embodied in the General Statutes, c. 113. The commissioners on these statutes say, in a note to § 38 of c. 113, " that most of the specifications of jurisdic- tion in equity contained in Rev. Sts., c. 81, § 8, and in some subsequent acts, might have been omitted ; c. 214 of 1857, having conferred full equity jurisdiction according to the INTRODUCTION. 13 usage and practice of courts of chancery. But in some particulars the powers conferred prior to 1857 are doubtless more extensive than those usually exercised by a court of chancery ; and yet it may not be easy for us to determine the precise limits, and to separate these particulars from the rest. For these reasons, and because it may be useful by ■way of reference, the commissioners have concluded to retain the whole of the section, with the substance of some other provisions of the statutes giving equity jurisdiction." If the commissioners could have anticipated the decision of the court in Pratt v. Pond, 5 Allen, 59, they might have had stronger reasons for concluding to retain the specifications of jurisdiction. The action of the commissioners, and the reasons they gave for it, as above stated, reveal in a striking manner some of the sources of the peculiarities and defects in our equity jurisprudence and its practical administration in our courts. Passing over several acts designed to regulate the exercise of the equity jurisdiction rather than to enlarge it, we reach the final act (St.l877, c. 178), by which it was provided that the Supreme Judicial Court shall have jurisdiction in equity in all cases and matters of equity cognizable under the gen- eral principles of equity jurisdiction. Thus, near the close of the first century of our constitutional history, authority was for the first time conferred upon the court, as a court of gen- eral equity jurisdiction, to employ in the administration of justice all the remedies known to courts possessing the full- est chancery powers ; and when it is remembered that the rules and principles of law governing the action of courts of chancery are as clearly defined and as well established as those governing the course of proceedings in courts of com- mon law, it is difficult to account for the partial, hesitating, and fragmentary legislation on this subject during the last hundred years. " There are certain principles," says Lord Redesdale, " on which courts of equity act, which are very 14 EQUITY PLEADINGS AND PEACTICE. well settled. The cases which occur are various, but they are decided on fixed principles. Courts of equity have, in this respect, no more discretionary power than courts of law. They decide new cases as they arise by the principles on which former cases have been decided ; and may illustrate or enlarge the operations of those principles. But the principles are fixed and certain as the principles on which common law courts proceed." ^ " There is not a single rule of interpret- ing laws that is not equally used by the judges in the courts both of law and equity. The construction in both must be the same ; or if they differ, it is only as one court of law may happen to differ from another. Each endeavors to fix and adopt the true sense of the law in question. Neither can enlarge, diminish, or alter that sense in a single tittle." ^ " The systems of jurisprudence in our courts of law and equity are now equally artificial systems, founded on the same principles of justice and positive law, and varied by different usages in the forms and modes of their proceed- ings."^ The provisions in the General Statutes, and in acts passed between 1860 and 1880, relating to the general equity powers of the court, will be found, with some unnecessary^ details, in the Public Statutes, c. 151. Down to the year 1883 jurisdiction in equity, except in a few specified cases, was exclusively in the Supreme Judicial Court. But by St. 1883, c. 223, it was provided that the Superior Court shall have original and concurrent jurisdic- tion with the Supreme Judicial Court in all matters in which relief or discovery in equity is sought, with all the powers and authorities incident to such jurisdiction, and may issue all general and special writs and processes required in pro- ceedings in equity to courts of inferior jurisdiction, corpora- tions, and persons necessary to secure justice and equity. By this act, the means of administering justice in this Com- 1 Bond V. Hopkins, 1 Soh. & Lef. 428. 2 Story Eq. Jur. § 15. » 1 Kent Com. 489, 490. ESTEODXJCTION. 15 monwealth have been brought into conformity with the enlightened systems now existing in England and in most of the other States of this Union ; and the right of every citizen " to obtain justice freely and without being obliged to purchase it, completely and without any denial, promptly and without delay, conformably to law," will not depend upon the particular form or court in which he is obliged to seek that j ustice. Having now given a brief history of the origin and devel- opment of equity jurisdiction in this State, as exhibited in our legislation, the following pages of this work will be de- voted to a discussion of the systems of Equity Pleadings and Practice which have grown up under this jurisdiction; recognizing therein the distinction, as-made by Judge Story, between Pleadings and Practice. " By the pleadings we are to understand the written allegations of the respective parties in the suit, that is to say, the written statement of the plain- tiff, containing, in due legal form, the facts of the case on which he grounds his title to relief, or to some equitable in- terposition or aid from the court ; and the written answer or defence of the defendant to the charge of the plaintiff, either denying them altogether,, or admitting them, and relying on some other matters as a bar to the suit, or admitting them, and insisting upon the want of title in the plaintiff to the relief sought, or to the interposition or aid of the court ; and the written reply of the plaintiff thereto. By the practice in a suit in equity, we are to understand the various proceed- ings in the suit, whether by the positive rules or the usage of the court, and whether interlocutory or otherwise, which may become necessary or proper for the due conduct thereof from the beginning to the final determination thereof." ^ Although this broad distinction between Pleading and Practice exists, yet it is obvious that the two are so con- nected that, in treating of one, it will become necessary to 1 Story Eq. PI. § 4. 16 EQUITY PLEADINGS ASD PEACTICB. some extent to bring the other into the discussion. And therefore, while this work is designed mainly as a treatise on Practice, the subject of Pleading will be more or less con- sidered. And though the work is principally intended to elucidate the practice in the courts of this State, yet as the statute granting full chancery jurisdiction to these courts does not define the limits of that jurisdiction, but declares in the most general terms that the court shall have jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisdiction, and in respect of all cases and matters shall be a court of equity jurisdiction, it will become necessary to refer to the English practice and decisions, and those of the United States courts and the courts of other States exercising chancery powers. CHAPTER I. JURISDICTION IN EQUITY. Section I. — Jurisdiction of the Court. The question of jurisdiction is one of the first the practi- tioner must consider, when called on to prosecute or defend a suit, either at law or in equity. This preliminary chapter will, therefore, be devoted to that subject. The right determination of this question will involve an inquiry into the character of the court and its powers, the subject matter of the controversy, and to some extent the proper parties to the suit. The courts in this State derive all their equity power from the legislature ; and, as has been shown, the equity jurisdiction of the courts has been enlarged by successive legislative acts, extending over nearly one hun- dred years, until that jurisdiction has now become general, as expressed in the following provisions of the statutes. The court shall have jurisdiction in equity of all cases and matters in equity cognizable under the general principles of equity ju- risprudence, and in respect of all such cases and matters shall be a court of general equity jurisdiction.^ By another section of the same chapter of the statutes, it is provided that the court may hear and determine in equity all cases hereinafter mentioned, where the parties have not a plain, adequate, and complete remedy at the common law ; ^ and then follows an enumeration of the subjects over which the court is author- ized by this section to exercise equity jurisdiction. These two sections of the statute are apparently inconsistent, inas- much as the latter imposes a restriction upon the jurisdiction 1 P. S. c. 151, § 4, from St. 1877, c. 178. ^ P. S. c. 151, § 2. 2 18 EQUITY PLEADINGS AND PEACTICE. of the court, which is not found expressed in the former. But the inconsistency is apparent only, and not real; for upon the well-established principles of equity jurisprudence, courts of equity, possessing the fullest chancery powers, do not usually take jurisdiction where the parties have a plain, adequate, and complete remedy at law. This jurisdiction in equity, as originally granted by the legislature, was exclu- sively in the Supreme Judicial Court, but by a recent statute it has been made concurrent in the Superior Court.^ It will be noticed that, from the terms of the statutes referred to, the extent and limitations of the equity jurisdiction of the courts of this Commonwealth cannot be ascertained from the statutes alone ; for they are declared to be courts of general equity jurisdiction, and what that jurisdiction is can only be learned from the decisions and practice of other courts pos- sessing such general jurisdiction. A full development of this subject would lead to a more extensive examination into the English practice, and that in other States where courts of general equity jurisdiction have been long established, than can be attempted here. But the inquiry will be pursued far enough to show the general principles upon which these courts have acted in determining the extent of their juris- diction. The Supreme Court of this State early adopted the rule of strict construction in relation to all statutes giving that court equity jurisdiction. They said in one of the early cases, " This court have considered it their duty to take no jurisdiction as a court of chancery, beyond what has been expressly given to them by the legislature, or is the neces- sary effect of powers explicitly given." ^ The two reasons assigned for the rule of strict construction no longer exist. 1 St. 1883, c. 223, § 1. 2 Black V. Black, 4 Pick. 238 ; Clark v. Sibley, 13 Met. 214 ; Dwight V. Pomeroy, 17 Mass. 327 ; Charles Kiver Bridge v. Warren Bridge, 6 Pick. 397. JTJEISDICTION IK EQUITY. 19 The first was, that the court was not " a court of general chancery powers," and the second reason was, "that the mode of proof in courts of equity and courts of law is essen- tially different. By the former, the party himself who is sought to be charged is to be examined, and he is put under legal compulsion to furnish evidence against himself, instead of standing on the proofs of his adversary, according to the known practice in courts of common law." But the court now has general chancery powers, and the mode of proof in law and equity is the same. Either party may examine the other upon interrogatories filed, whether the action be at law or in equity. The court, however, still adhered to the rule of strict construction as late as 1874.^ This was before the passage of the act making the court " a court of general equity jurisdiction." The court has also repeatedly held that the plaintiff's bill must not only not show that he has an adequate remedy at law, but it must show that he is without such remedy, in order to give the court jurisdiction of the cause.^ Some of the earlier decisions on this subject are cited in the margin.^ All these decisions were made long before the legislation which confers full chancery powers upon the court. This very strict adherence to the letter of the statutes, which resulted from the fragmentary legislation on this subject, developed in this State a very imperfect system of equity practice, when compared with that of other States whose courts were endowed with larger powers. And although the legislature has now given the courts the fullest equity jurisdiction, it is not quite certain that we have yet es- caped from all the artificial embarrassments of our earlier practice. 1 Jones V. Newhall, 115 Mass. 251. 2 Woodman v. Saltonstall, 7 Cush. 182, 183 ; Bassett v. Brown, 100 Mass. 356 ; 9 Allen, 101. 8 Terrell v. Merrill, 17 Mass. 121 ; Pratt v. Bacon, 10 Pick. 126; g^Uen V. Crafts, 20 Pick. 325; Fisk v. Slack, 21 Pick. 166. 20 EQUITY PLEADINGS AND PKACTICB. In regard to the subjects embraced within the equity jurisdiction of the courts, the adequacy or inadequacy of the remedy at law in every case is the principal test by which that jurisdiction is to be determined. And this restriction upon the equity jurisdiction of the courts applies to all cases enumerated in the section of the statute which confers the jurisdiction ;i viz. suits for the redemption of mortgages or to foreclose the same ; suits and proceedings for enforcing and regulating the execution of trusts ; suits for the specific per- formance of written contracts ; suits to compel the redelivery of goods or chattels taken from the owner and detained so that they cannot be replevied ; suits for contribution by and between devisees, legatees, or heirs, or between other persons liable for the same debt or demand ; other cases in which there are more than two parties having rights that can- not be adjusted in one action at common law; suits between copartners, joint tenants, and tenants in common, and their legal representatives; suits between joint trustees, co-execu- tors, and co-administrators, and their legal representatives; suits concerning waste and nuisance ; suits upon accounts ; bills by creditors to reach and apply, in payment of a debt, the property legal or equitable of a debtor ; cases of fraud, and conveyances or transfers of real estate in the nature of mortgages ; cases of accident or mistake ; suits for discov- ery; and suits to reach and apply, in payment of a debt, property fraudulently conveyed by the debtor to defraud his creditors. This enumeration does not embrace all the subjects of which a court of general equity jurisdiction may take cognizance ; but the same test is to be applied to the determination of its jurisdiction in all other cases as in those embraced in the above enumeration. This rule had its origin in the very in- ception of equity jurisdiction, whose ofiice originally was to administer relief where the courts of common law could not 1 P. S. 0. 151, § 2. JURISDICTION IN EQUITY. 21 or would not do it. The rule prevails in the English Court of Chancery, with this difference : that court construes the rule more liberally, and grants relief in some cases where our court has been accustomed to send the parties to a court of law for redress. This difference arises in part, though not wholly, from the fact that our court includes within the re- strictive clause, not only common law remedies, but also stat- utory remedies. The court say, " The remedy at law must refer to remedies at law as they exist under our statutes, and according to our course of practice."^ The court give no reason for declaring that the legislature by common law meant statute law as well. The difference between statute and common law is very well understood, both in the legislature and out of it. The Supreme Court of the United States, in dealing with the same question, holds that to determine whether there is a plain, adequate, and complete remedy at Jaw, so as to prevent an appeal to the equitable jurisdiction of the courts of the United States, reference must be had to the principles of the common law of England, and not to the laws of the State where the court sits.^ The acts of Con- gress, say the court, have distinguished between remedies at common law and in equity, and to effectuate the pur- poses of the legislature, the remedies in the courts of the United States are to be at common law or in equity, not according to the practice of the State courts, but according to the principles of common law and equity as understood and defined in that country from which we derive our knowledge of those principles. The following citations will sufficiently indicate the general principles by which courts are governed, in deciding the question of jurisdiction, so far as that depends upon the ex- istence or non-existence of an adequate legal remedy. 1 Pratt V. Pond, 5 Allen, 60; Boston & Fairhayen Iron Works v. Mon- tague, 108 Mass. 250, 251. 2 Robinson u. Campbell, 3 Wheat. 223. 22 EQUITY PLEADINGS AND PEACTICB. This remedy at law must be plain ; for, if it be doubtful and obscure, equity will assert jurisdiction. It must be ade- quate ; for, if it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete ; that is, it must attain the full end and justice of the case. It must reach the whole mis- chief, and secure the whole right of the party, in a perfect manner ; otherwise equity will interfere and give such relief and aid as the exigency of the particular case may require.^ If the remedy at law is doubtful, circuitous, or complicated by a multiplicity of parties having different interests, that party may resort to equity for relief.^ In case of a bill in equity to restrain the defendant from keeping up a mill-dam, to the nuisance of the plaintiff's mill privilege higher up the stream, the plea of the defendant raised the objection that the plaintiff had an adequate remedy at law. " But is this remedy," asks Shaw, C. J., iu giving the opinion of the court, "adequate within the meaning of the statute? Is it equally complete, effectual, and beneficial? It was urged in defence that the court would take jurisdic- tion of nuisances only in ui'gent cases, where the prompt in- terposition of the court is necessary by immediate injunction, and where the proceedings at law would be too slow. But we think this no test of superior efficacy and completeness. The power given by the statute is discretionary, and the exercise of it will depend upon the circumstances of each particular case. And in this case we think it sufficient that the remedy in equity is more adequate and better adapted to reach the justice of the case, and more complete by being at once more comprehensive and effectual." The construction given by the Supreme Judicial Court to this restrictive clause of the statute, and the practice of that I 1 Story Eq. Jur. § 33. ^ Jones V. Newhall, 115 Mass. 244; Kathburn v. Warren, 10 Johns. 595. JURISDICTION IN EQUITY. 23 court under it, are clearly stated by Wells, J., in giving the opinion of the court in a case already cited.' This was a bill for specific performance of a written con- tract. The power, says the learned judge, to enforce specific performance, extends alike to written contracts of all descrip- tions ; but its exercise is restricted by the proviso, when the parties have not a plain, adequate, and complete remedy at law ; and this has always been so construed and applied as to make it a test, in each particular case, by which to determine whether jurisdiction in equity shall be entertained. If the only relief to which the plaintiff would be entitled in equity is the same in measure and kind as that which he might obtain in a suit at law, he can have no standing upon the equity side of the court; but in the language already quoted, the learned judge declares, if his remedy at law is doubtful, cir- cuitous, or complicated by a multiplicity of parties having different interests, he has a right to relief in equity. In this connection it was said that jurisdiction in equity is rarely entertained to enforce specific performance of contracts respecting the sale of personal property, for the reason that the difference between the contract price and the market price, which is recoverable at law, will in most cases be full indemnity. But it is otherwise with fixed property, like real estate. Compensation in damages, measured by the difference in price as ascertained by the market value and by the contract, has never been regarded in equity as such adequate indem- nity for non-fulfilment of a contract for the sale or purchase of land as to justify the refusal of relief in equity. But as inadequacy of the damages recoverable at law is the essential element on which the action of a court of chancery is founded in this class of cases, if the character of the property be such that the loss of the contract will not be fairly compensated 1 Jones V. Newhall, 115 Mass. 247; Suter v. Mathews, 115 Mass. 255. 24 ' EQUITY PLEADINGS AND PKACTICE. in damages based upon an estimate of its market value, relief may be had in equity, whetKer it relates to real or personal estate.^ Courts of equity decree the specific performance of con- tracts, not upon any distinction between realty and person- alty, but because damages at law may not, in the particular case, afford a complete remedy ; in other words, because damages fit law will not put the party in a situation as bene- ficial to him as if the agreement were specifically performed. The rule is more fully stated in Story's Eq. Jur. § 717, thus : " This constitutes the true and leading distinction in the present exercise of equity .jurisdiction in decreeing specific performance. It does not proceed (as is sometimes erro- neously supposed) upon any distinction between real estate and personal estate ; but upon the ground that damages at law may not, in the particular case, afford a complete remedy. Thus courts of equity will decree performance of a contract for lands ; not because of the particular nature of land, but because the damages at law, which must be calculated upon the general value of land, may not be a complete remedy to the purchaser, to whom the land purchased may have a peculiar and special value. So courts of equity will not generally decree performance of a contract for the sale of stocks or goods ; not because of their personal nature, but because damages at law, calculated on the market price of the goods or stock, furnish a, complete remedy." In the case of Boyce v. Grundy, 3 Pet. (U. S.) 214, which was a bill in equity to rescind a contract on the ground of fraud, one of the grounds of defence was that the plaintiff had an adequate remedy at law, and that therefore, under the sixteenth section of the Judiciary Act (1 St. at L. 82), which prohibits suits in equity where there is a plain, ade- quate, and complete remedy at law, the plaintiff ought not ' Adderly v. Dixon, 1 Sim. & Stu. 610; 1 Leading Cases in Eq. 800 and 891; 32 Beav. 490; 16 W. R. 495. JUBISDICTION IN EQUITY. 25 to be allowed to maintain his bill. But the court refused to dismiss the bill, saying, " This court has been often called upon to consider the sixteenth section of the Judiciary Act of 1789, and as often, either expressly or by the course of its decisions, has held that it is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law ; it must be plain and adequate, or, in other words, as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity." It has been suggested that, under the enlarged chancery jurisdiction of the court, a different interpretation of the restrictive proviso respecting the existence of adequate legal remedies would be required, and a larger class of cases brought within the equity jurisdiction of the court. But this is not the view apparently taken of the subject by the court in a later case.^ This was a bill in equity, to which the defendant filed a general demurrer. The facts, which were somewhat numerous, were fully set forth in the bill, and were of course, by the form of the pleadings and for the purpose of settling the question of law raised, admitted to be true. The defendant's contention was that the plaintiff had a plain, adequate, and complete remedy at law ; and the court, without deciding whether he had or had not such rem- edy, sustained the demurrer and ordered the bill dismissed, saying, " If the plaintiff has the rights he asserts, — and we give no opinion upon that question, — his remedy is plain, adequate, and complete at law." In a still later case the full court seem to take a somewhat * different view of the subject, and base their assumption of jurisdiction, in part at least, upon the St. of 1877.^ Accord- ing to the allegations in the bill in this case, the plaintiffs, who were associated with the defendant for the purchase of 1 Allen V. Storer, 132 Mass. 372 (1882). 2 Dole V. Wooldredge, 135 Mass. 141. 26 EQUITY PLEADINGS AND PEACTICE. a mine for their common benefit, with a view to the profit to be made from it by organizing a corporation to work it, were grossly deceived and defrauded by the defendant, who stood in a fiduciary relation to them, in his representations of the sum paid for the mine ; and they seek for an account from the defendant of his dealings in the purchase of the mine for the common benefit, and to have the matter so adjusted that each shall have contributed the sums mutually agreed upon. The defendant demurred to the bill, on the ground that the plaintiffs have a plain, adequate, and com- plete remedy at law. The court say : " If an action at law could be maintained, it is not plain whether the plaintiffs should join in the action, or whether each should bring an action to recover the damages he sustained by the fraud. We have no doubt that, since the passage of the St. of 1877, c. 178, this court has jurisdiction in equity of this case; and, without determining absolutely that the plaintiffs have no remedy at law, we are of the opinion that their remedy at law is not so plain that we ought to deny them relief in equity." But the reason given for sustaining the jurisdiction in this case is identical with that given by the court for granting relief in a case decided in 1832. That is, long before the passage of the St. of 1877, when the court found that the remedy at law, though existing, was not so plain, adequate, and complete, as the remedy in equity, it assumed jurisdic- tion ; and having done that, it was authorized to grant all the relief which any court of chancery could, however exten- ■sive its general powers might be.^ But this application of the rule was not made by our court to all classes of cases, and a distinction was created between the practice here and in the Court of Chancery in England. This distinction, and the causes of it, are fully explained in a 1 4 Pick. 509-511; Charles River Bridge v. Warren Bridge, 6 Pick. 395. JUEISDIOTION IN EQUITY. 27 -case which has already been cited for another purpose.^ In that case, Wells, J., in giving the opinion of the court, says, after stating the practice in our court: "A different rule exists in the English courts of chancery, and in numerous cases, not unlike the present, relief in equity has there been granted by decree for payment of a sum of money due by contract although equally recoverable at law. The maxim which, as we apply it, makes the want of adequate remedy at law essential to the right to have relief in equity, in each case, has always been attached to chancery jurisdiction. But in the English courts it has been rather by way of indicat- ing the nature and origin of the jurisdiction, and defining the classes of rights or subjects to which it attaches, than as a constant limit upon its exercise." '^ After stating the circumstances under which the equity jurisdiction grew up in England, the learned judge proceeds to say: " Hence arose a wide range of concurrent jurisdic- tion, within which chancery proceeded without regard to the question whether a like remedy could be had in the courts of law. . . . Whereas, in Massachusetts, instead of a distinct and independent court of chancery, with a jurisdiction derived from and defined and fixed by long usage, we have certain chancery powers conferred upon a court of common law, whose jurisdiction and modes of remedy, as a court of law, had already become extended much beyond those of the Eng- lish courts of common law, partly by statute, and partly by its own adaptation of its remedies to the necessities which arose from the absence of a court of chancery. This differ- ence in the relations of the two jurisdictions would alone give occasion for different rules governing their exercise."^ This decision was rendered in 1874. The declaration of the court in the case of Dole v. Wool- dredge, uM supra, " We have no doubt that, since the » Jones V. Newhall, 115 Mass. 250-253. ^ Story Eq. Jur. §§ 49, 54, 64. * Suter v. Mathews, 115 Mass. 255. 28 EQUITY PLEADINGS AND PKACTICB. passage of St. 1877, c. 178, this court has jurisdiction of this case," may be an intimation that hereafter that court •will, under its enlarged jurisdiction, follow more closely the English practice in the class of cases to which that case belongs. That was a case of fraud, which is one of the class of cases in which the English Court of Chancery has always exercised concurrent jurisdiction with the courts of common law. In other cases, the application of the maxim as to legal remedies is the same under the new arrange- ment and changes of jurisdiction in the English courts as it was before. In a late work on practice in the Chancery Division, it is said that jurisdiction in equity is only exercised when dam- ages would not be adequate compensation or are incapable of assessment, and that the court will only interfere where, from the nature of the subject matter, there is no adequate relief in damages for breach of the agreement.^ Specific per- formance is the subject here spoken of. It is now the prac- tice of the court, when it refuses to take jurisdiction of the cause in equity because the party has an adequate remedy at law, to proceed to assess damages as at law, instead of sending the party into another court, or division of the court, for the relief he has by mistake sought in equity. And this must become substantially the practice in our courts under the recent legislation, which provides that, in all proceed- ings in the Supreme Judicial Court or the Superior Court, no action or suit shall be defeated on the ground that there is an adequate remedy at law, or that the relief sought can only be obtained by a suit in equity; but such pro- ceeding, whether at law or in equity, shall, at any time be- fore final judgment, be amendable at the discretion of the court.^ Under the express provisions of our statutes, it has been 1 Evans's Practice, vol. i., Ch. Div., pp. 834, 835. 2 St. 1883, c. 223, § 17. JURISDICTION IN EQUITY. 29 decided that the restrictive clause above cited applies to a case where the party has a full and adequate remedy in the Probate Court.i In that case, the plaintiff, as heir at law, sought to obtain by bill in equity his distributive share of his intestate ancestor's estate. But the court said: "In this Commonwealth, the power to require administrators to ren- der accounts, and to submit to a decree of distribution of the surplus to those entitled, is expressly given to the judge of probate, and on appeal to the Supreme Court of Probate. The jurisdiction is not given to the Supreme Court as a court of equity." Section II. — Jurisdiction as to Parties. The full court has decided that it has not authority to make a decree in personam against a person who never was an inhabitant of this State, and upon whom process has not been served within the State.^ This decision was rendered in a case where the bill in equity, inserted in an original writ of attachment, sought specific performance of a written contract for the conveyance, of real estate in the county of Berkshire. The defendant's real estate in that county was attached on the writ. But the court held that the proceeding was strictly in personam, and that the party defendant must be, not technically or constructively, but actually, before the court, and within its jurisdiction. And the court also held that the rule for giving notice to absent defendants did not apply to this class of cases, for a decree against a party not within the jurisdiction of the court, and who had never been within the jurisdiction, would be wholly nugatory; for a court of equity can only deal with persons who can be com- pelled by process to perform its decrees, and with property which is either situated within the limits to which its juris- 1 Wilson V. Leishman, 12 Met. 320, 321. 2 Spurr V. Scofield, 3 Cush. 578. 30 EQUITY PLEADINGS AND PRACTICE. diction extends, or which can be reached through the action of parties who are amenable to its authority.^ If a non-resident defendant is served with personal notice in this State, and he appears and answers without objecting to the jurisdiction, the court thereby acquires jurisdiction, and may make a valid decree against him, so far as seques- trating his personal property within the State. And the decree may perhaps be the foundation for other courts to compel specific performance.^ In a case where the facts alleged in the bill were sufficient to charge the land with a trust in favor of the plaintiff, it was held, although the owner never resided in this State, that the court had au- thority to decree a conveyance of the land to the plaintiff by some person duly appointed by the court for that pur- pose.^ This case is distinguished from the one last cited, that being a proceeding in personam merely, in which no decree was sought against the property of the defendant, while in Felch v. Hooper the whole purpose of the proceed- ing was to enforce a trust in the property itself, and no decree was sought against the defendant personally. It has been held by the full court, overruling the decision of the single justice by whom the case was originally heard, that the court did not acquire jurisdiction under the following state of facts. The bill in equity, filed in our court against the defendant residing in another State, sought relief only against him personally, and was served upon him by leaving a subpoena at his last and usual place of abode in the State of his residence. He appeared specially for the purpose of object- ing to the jurisdiction of the court, and moved that the injunc- tion against him be dissolved. This motion was overruled by the single justice, but was subsequently allowed by the full court. The court say, that the defendant by filing an answer 1 Moody V. Gay, 15 Gray, 458. ' Dooley v. Watson, 1 Gray, 414; Pingree v. Coffin, 12 Gray, 288. » Felch V. Hooper, 119 Mass. 52; P. S. c. 141, § 22. JtTKISDICTION IN EQUITY. 31 to the bill after his motion was overruled, and going to trial, not waiving his objection to the jurisdiction of the court, did not thereby lose the right still to insist upon his objection.^ Section III. — As to the Amount claimed. So long as the Supreme Judicial Court had exclusive juris- diction in equity, it was held that an affidavit of the amount sought to be recovered in a suit was unnecessary to give the court jurisdiction. The reason assigned was, that the juris- diction of the court was exclusive over all actions in which relief in equity was prayed for ; and that the prayer for relief gave the court jurisdiction, and therefore no affidavit was necessary.^ Now that the court has only concurrent jurisdiction in equity, will an affidavit as to the amount of damages be necessary to give the court jurisdiction ? That can hardly be claimed, for the statutes requiring an affidavit of the amount of damages relate to actions at law, in which no relief in equity is sought ; ^ and the Supreme Court still has jurisdiction, though not exclusive, of all suits in equity with- out regard to the amount claimed, and so also has the Superior Court. It would seem, therefore, that no affidavit can be required to give either court jurisdiction. The powers of a court of equity are not to be called into exercise to consider matters of trifling amount, or to recover nominal damages. The rule de minimis is applied in equity with reasonable strictness.* In another case, where two plaintiffs sought by bill in equity to enforce the payment of their separate claims, each being for less than $100, the court say : " The jurisdiction of this court is not to be invoked in 1 Walling V. Beers, 120 Mass. 550. \^ 2 Stockbridge Iron Works v. Cone Iron Works, 99 Mass. 468. 8 P. S. c. 150, § 5. * Cummings v. Barrett, 10 Cush, 190 ; Moon v. Little, 4 Johns. Ch. 184. 32 EQUITY PLEADINGS AND PRACTICE. behalf of claims of this bind and amount ; and it is the duty of the court, in order to prevent its time from being consumed in frivolous controversies, to the detriment of suitors who are entitled to its attention, to decline to entertain them, although the defendants make no specific objection on this ground by demurrer or otherwise." ^ "A bill in equity may be maintained to reach, and apply in payment of a debt, any property of a debtor, although the plaintiff's debt does not equal one hundred dollars in amount, or the property sought to be reached and applied is in the hands, possession, or control of the debtor, or that he is not within the State, or that it is of uncertain value, provided the value can be ascertained by sale or appraisal, or by means within the ordinary procedure of the court, although the property cannot be reached and applied till a future time. The interest of a copartner in partnership property may be reached and applied to the payment of the plaintiff's debt." 2 1 Chapman v. Banker & Tradesman Publishing Co., 128 Mass. 479, 480. See Smith v. Williams, 116 Mass. 513. 2 St. 1884, c. 285. CHAPTER II. PARTIES TO A SUIT. Section I. — Generally. It is a general rule, that all persons interested in the sub- ject matter of a suit should be made parties, plaintiff or defendant, to the end that the rights of all may be settled, complete justice done, and future litigation prevented. There are exceptions to this rule, which will be hereafter stated. lb has been said that there are three classes of parties to a bill in equity : 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly called necessary parties ; but if their interests are separable from those of the parties before the court, so that the court can proceed to decree and do complete and final justice without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting their interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.^ The necessary parties to a suit in equity cannot always be determined by definite rules, but the decision rests in the discretion of the court. Thus it has been held in a suit 1 Shields v. Barrow, 17 Howard, 139 ; Michigan State Bank v. Gardner, 3 Gray, 308. 3 34 EQUITY PLEADINGS AND ERACTICE. ao-ainst trustees to enforce the execution of a trust, that the cestuis que trust, claiming present interests directly opposed to those of the plaintiff should be made parties, in order that they may have the opportunity themselves to defend their rights, and not be obliged to rely upon the defence made by the trustees, or to resort to a subsequent suit against the trustees or plaintiff, or to take the risk of being bound by a decree rendered in their absence.^ In a suit for the foreclosure of a mortgage, it appeared that the mortgagor had by his will devised the mortgaged premises to the two defendants, upon trust to pay his widow a weekly stipend, and, subject to the mortgages, in trust for his two sons. The plaintiff had made defendants, not only the two trustees, but also the widow and the representatives of the two sons. This was objected to by the defendants, but it was held that the bill was properly constituted, so far as it made parties the trustees of, and the persons bene- ficially interested in, the specific bequest, in order that every person having an interest in the equity of redemption might be foreclosed, and that a perfect decree might be made and a sure title acquired under the foreclosure.^ One or more of a numerous class, having a common in- terest in the subject matter of the suit, may sue or be sued on their own behalf and in behalf of all the other persons of the same class. In such a case, the bill should contain an allegation that the persons interested are too numerous for all to be made parties. The rights of the parties not named as parties to the suit should be concurrent with the rights of the party instituting the suit, as they should have a common interest in resisting the suit of the plaintiff when they are defendants.^ 1 Sears v. Hardy, 120 Mass. 524; Cone v. Hamilton, 102 Mass. 56. 2 Coles V. Forrest, 10 Beav. 557 ; Nelson v. Ferdinand, 111 Mass. 300. 8 Cassidy v. Shimmin, 122 Mass. 409; Smith o. Williams, 116 Mass. 510 ; Birmingham v. Gallagher, 112 Mass. 190 ; First National Bank v. Salisbury, 130 Mass. 308; Shaw v. Norfolk Co. K. R., 5 Gray, 162. PAETIES TO A SUIT. 35 The reason given for making the heir at law a party to a suit to foreclose a mortgage brought by the executor of the mortgagee is, that the legal estate is in the heir, although the money secured by the mortgage is part of the personal estate of the mortgagee, and belongs to his personal repre- sentative. The heir would not in such a case be bound by the decree unless he is made a party to the suit.^ The principle that a party beneficially interested in a trust estate, who brings a suit to enforce his rights therein, should make the legal owner of the estate a party to the suit, applies to the case where a bill is filed for the specific performance of a covenant, in a contract under seal, made by one person for the benefit of another, and the suit is prosecuted by the per- son beneficially interested in the covenant ; in such case the covenantee must be made party to the bill.^ Can the assignee of a legal chose in action maintain a suit in equity thereon without joining the assignor as a party to the suit? On this subject Mr. Justice Story says, "The more general principle established in this country seems to be, that whenever an assignee has an equitable right or interest in a debt, or other property, there a court of equity is the proper forum to enforce it." ^ But the weight of authority would seem to be in favor of the contrary view. In a recent English case it was held that the assignee of a debt not in itself nego- tiable cannot maintain a suit in equity against the debtor, unless it is shown that his remedy at law is or may be obstructed by the assignor.* The same doctrine has been maintained in numerous cases in this countr3^^ 1 Scott V. Nicholl, 3 Russ. 476; Wood v. Williams, 4 Mad. 186. 2 Story Eq. PL § 209. ' 2 Story Eq. Jur. § 1057 a; Riddle v. Mandeville, 5 Cr. 322; Town- send V. Carpenter, 11 Ohio K. 21 ; Taylor v. Reese, 44 Miss. 89. * Hammond v. Messinger, 9 Sim. 327. 8 Ontario Bant v. Mumford, 2 Barb. Ch. 596; Carter v. United Ins. Co., 1 Johns. Ch. 463; Walker v. Brooks, 125 Mass. 241; Hogan v. Buck, 44 Vt. 285. 36 EQUITY PLEADINGS AND PRACTICE. The rule, that persons having joint interests in an estate must be joint parties in suits respecting the same, applies whether the estate be real or personal.^ The same rule prevails in suits for the redemption or for the foreclosure of mortgages.^ But if the mortgagee has assigned both the money due on the mortgage and the mortgaged premises, the assignee may foreclose without making the original mort- gagee a party to the suit. And also when the mortgagee has devised his interest in the mortgage, so as to pass the money secured by the mortgage and the mortgaged estate, the devisee may foreclose without joining the heir in the suit.^ All parties interested in the taking of an account should be made parties to the suit in which the account is to be taken. As, for instance, in suits for a partnership account ; and in suits by a residuary legatee seeking an account of the residue, all persons interested in the residue must be made parties to the suit.* But partners who have received their full share of the partnership effects need not be made parties to a suit between the other partners.* It is a general rule, that trustees cannot prosecute suits in equity relating to the trust property without making the cestuis que trust parties.^ There are exceptions to this rule.' The rule requiring all persons having or claiming concur- rent interests to be parties to a suit, applies whether the interest be in possession, remainder, or reversion.^ ^ Wing V. Davis, 7 Greenl. 31; Noyes v. Sawyer, 3 Vt. 160; Lowe v. Morgan, 1 Bro. C. C. 368; 16 Beav. 190. 2 2 Bro. C. C. 276; 12 Ves. 48; Story Eq. PI. §§ 186, 195; McCabe v. Bellows, 1 Allen, 269 ; Story Eq. PL § 190; 4 Kent, 186. s Miller v. Henderson, 2 Stockt. (N. J.) 320; 6 Mad. 371. * Doody V. Pierce, 9 Allen, 143; Story Eq. PI. § 166 ; Story Partn. § 449; Mudget v. Wells, 52 Maine, 541. 5 Towle V. Pierce, 12 Met. 332; Vose v. Philbrook, 3 Story, 335. 6 Story Eq. PI. §§ 207-209 ; Elmer v. Lopez, 10 C. E. Green, 475 and 163; Richards v. Richards, 9 Gray, 315. ' Ferguson v. Applewhite, 10 Sm. & M. 301 ; Ashton v. Atlantic Bank, 3 Allen, 220; Boyden v. Pai-tridge, 2 Gray, 194. See 5 Gray, 170. 8 Story Eq. PI. § 144. PABTIES TO A SUIT. 37 To the general rule, that none but parties to the contract are necessary .parties to a suit for specific performance, there are also exceptions.^ In a suit by the president of a company for specific per- formance of a contract made by him for the benefit of the company, the company is a necessary party plaintiff with the president.^ In suits for marshalling assets, simple contract creditors must be joined as plaintiffs with creditors by specialty. And where the creditors are numerous, the suit may be prosecuted in the name of one specialty creditor and one simple contract creditor, on behalf of themselves and all other creditors. And so one legatee may sue on his own behalf, and on behalf of all the other legatees.^ To a bill for the dissolution of a partnership all the part- ners should be made parties.* When the object of a suit is to restrain a corporation from committing acts ultra vires, the suit may be prosecuted by one member of the corporation on behalf of himself and other members, or he may sue in his own name without stating that he does it for the benefit of others as well as himself. The plaintiff in such suit cannot discontinue it without leave of court.^ There are numerous classes of persons who have an inter- est, either immediate or consequential, to resist the demands of the plaintiff, and all such persons should be made parties. A separate examination of this subject in detail, after what has been said of parties in general and what follows in rela- tion to plaintiffe and defendants, is not essential.^ 1 Chadwick v. Maden, 9 Hare, 188; Williams v. Leech, 28 Penn. 89. 2 Nichols V. Williams, 7 C. E. Green, 63. « Story Eq. PI. § 104; Brown v. Ricketts, 3 Johns. Ch. 553. * Deeks v. Stanhope, 14 Sim. 57; 8 Jur. 72; Cooper v. Webb, 15 Sim. 454; Lindley on Partn. 878. 5 Atlas Bank v. Nahant Bank, 23 Pick. 492. See P. S. c. 106, § 68. • For a full treatment of the subject, see Dan. Ch. Pr. (5th ed.) 246. 38 EQUITY PLEADINGS AND PBACTICE. This discussion of the rule in equity, that all parties in interest should be made parties to the suit, may be appro- priately concluded by quoting the language of the United States Supreme Court in relation to it. " It is true this equitable rule is framed by the Court of Equity itself, and is subject to its discretion. It is not, like the description of parties, an inflexible rule, the failure to observe which turns the party out of court, merely because it has no jurisdiction over his cause ; but, being introduced for the purposes of justice, is susceptible of considerable modifications for the promotion of these purposes. In the exercise of its discretion, the court will require the plaintiff to do all in his power to bring every person concerned in interest before the court. But if the case may be completely decided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, ought not to prevent a decree upon its merits." ^ Section II. — Plaintiffs. All persons, natural or corporate, with few exceptions, may institute and prosecute suits in equity in their own names. Infants and lunatics who are incapable of managing their own affairs must sue by guardian, committee, or next friend. Married women, except in jurisdictions where the disability has been removed by legislation, cannot maintain suits in their own names. In England, conviction of treason or felony, and bank- ruptcy, are held to be disqualifying causes. An alien may sue another alien in the courts of this Com- monwealth, although the parties are only temporarily here.^ 1 Mallow V. Hinde, 12 Wheat. 198 ; Elmendorf ». Taylor, 10 Wheat. 167. 2 Roberts v. Knights, 7 Allen, 449. PARTIES TO A SUIT. 39 In suits relating to public charities the Attorney General should be made a party.^ It is the duty of a court of equity, says Lord Eldon, in administering trusts, to protect, not the visible owner, who alone can proceed at law, but the individual equitably, though not legally, entitled. From this principle has arisen the prac- tice of administering the trust of a public charity: persons possessed of funds appropriated to such purposes are within the general rule ; but no one being entitled to an immediate and peculiar interest to prefer a complaint, it becomes the duty of the King, as parens patrice, to protect property devoted to charitable uses ; and that duty is executed by the officer who represents the Crown for all forensic purposes.^ In this State the duty of maintaining the rights of the public, and of a number of persons too indefinite to vindicate their own, has vested in the Commonwealth, and is exercised as in England through the Attorney General.^ This privilege or right of the Attorney General to inter- vene is not confined to suits on behalf of charities, strictly so called, but has been held, in many instances, to extend to cases where funds have been made applicable to legal and general purposes. In such cases it is the right of the public that the government should be entitled to intervene, by its proper officer, for the purposes of asserting, on behalf of the pubKc generally, that public interest which probably no indi- vidual could be found willing effectually to assert, even if the interest was such as to allow it.* In this State the court has sustained informations in equity in the name of the Attorney General in only two classes of cases. The first relates to public nuisances, which require 1 Attorney General v. Old South Society, 13 Allen, 474; Jackson v. Phillips, 14 Allen, 579. " Attorney General v. Brown, 1 Swanst. 271 ; 1 Wils. Ch. 348. a 14 Allen, 579; Going v. Emery, 16 Pick. 119; P. S. c. 17, § 16. * 1 Dan. Ch. Prae. (6th ed.) 56, 57. 40 EQUITY PLEADINGS AND PKACTICE. immediate judicial action for their removal or abatement, like obstructions to highways or navigable waters, or objects injui'ious to public health. If the proofs as to the existence of the nuisance are conflicting, and the injury to the public is uncertain or doubtful, the court as a court of equity will not interfere, but leave the party to proceed by indictment.^ The other class of cases relates to trusts for charitable uses, where the beneficiaries are so numerous as to require a suit in behalf of the public.^ Where the Commonwealth alone is concerned, the prose- cuting officer proceeds by information in his own name, with- out mentioning others ; but in other cases he proceeds upon information received from other persons named in the infor- mation, and who are called relators. But they are not parties plaintiff in the suit, and cannot be heard by counsel nor in person. They are only important to the proceedings in order that there may be somebody responsible for costs, in case it appears that the information is unfounded.^ Where the relator has a personal interest in the matter, his personal complaint may be joined with one incorporated in the information given by the officer to the court, and they together form an information and bill, and are so called. The administrator of one of the contracting parties in the following contract was held to be a necessary party plaintiff to a bill for specific performance. By a contract in writing between P., who was in possession of certain land, and the defendant, it was agreed that their conflicting claims thereto should be submitted to an arbitrator, whose award should be final. The arbitrator awarded that the defendant had no legal claim to the land, and that he should execute a release 1 Dist. Atty. V. Lynn & Boston Railroad Co., 16 Qray, 245; Atty. Gen. V. Cambridge, 16 Gray, 247. ' ^ Jackson v. Phillips, 14 Allen, 539; Atty. Gen. v. Garrison, 101 Mass. 223; Atty. Gen. v. Tudor Ice Co., 104 Mass. 244. » Atty. Gen. v. Parker, 126 Mass. 221. PARTIES TO A SUIT. 41 to P., which he refused to do. P. subsequently died, and his administrator sold the land under license of court,' and con- veyed the same to the plaintiff, who was the purchaser, but without covenanting for the validity of the title. A bill in equity was brought by the purchaser in his own name and that of the administrator, to compel the defendant to execute a release. It was held that the administrator was a necessary party to the suit, on the ground that he had an interest in the subject matter, which might be affected by the decree, and also because a decree, if made, ought to be a protection to the defendant against any action at law brought for a breach of the contract ; which action could only be brought by the administrator.^ An assignor of a written contract, by whom the contract had been assigned by an unconditional verbal assignment, is not a necessary party plaintiff in a suit by the assignee for specific performance of the contract.^ Riparian proprietors on the same stream of water may, although their titles are not joint, and in some respects their rights are not joint, unite in the same bill in equity against defendants who have caused an injury to the common rights of the plaintiffs.^ According to the present English practice in chancery, all persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found entitled to relief, for such relief as he or they may be entitled to, with- out any amendment.* As has heretofore been shown, when the persons jointly interested are very numerous, a bill in 1 Hodges V. Saunders, 17 Pick. 473. * Currier v. Howard, 14 Gray, 513. * Bardwell v. Ames, 22 Pick. 353. See also Ballou v. Hopkinson, 4 Gray, 324; Cadigan v. Brown, 120 Mass. 493. * 1 Dan. Ch. Prac. (6th ed.) 195. 42 EQUITY PLEADINGS AND PEACTICB. equity may be brought by one or more in behalf of them- selves and all others interested with them.^ This rule is not contradicted, but rather confirmed, in another case, in which the decision was, that if one of many creditors seeks to carry into effect an assignment in trust for the benefit of himself and co-creditors, and to obtain his proportion of the trust fund, he is bound to make all the creditors parties. For in the same case it was held that some of the creditors might sue in behalf of themselves and other creditors, who thereby Avere virtually made parties to the suit, and would be bound by the decrees made therein.^ The rule these cases serve to illustrate is well stated, and the reason for it, in the case cited in the margin.^ " It is a familiar rule of equity pleading, that all persons having a common interest and common object in the subject matter of a bill ought to be made parties, or, if they are too numer- ous to render the joinder of all of them practicable, the bill should be brought by some in behalf of all, so that the rights of all may be duly adjudicated in the final decree." Tliis was said in a case in which it was held that one stockholder of a corporation could not maintain alone a bill in equity to enforce the execution of a trust by persons to whom the property of the corporation had been conveyed to pay its debts. In a suit in equity for the abatement of a nuisance to demised premises, both the landlord and tenant should be made parties plaintiff to the bill.* In a suit to compel a reconveyance of certain real estate, which the owner in his lifetime had conveyed to the defendant for the purpose of defrauding the grantor's wife of her dower, it was held that 1 Snow V. Wheeler, 113 Mass. 179; 112 Mass. 190. 2 Bryant v. Russell, 23 Pick. 523; 20 Pick. 368. s Heath v. EUis, 12 Cush. 604. * Jesser v. Gifford, 4 Burr. 2141, cited in Ingraham v. Bunnell, 5 Met. 125. PARTIES TO A SUIT. 43 the widow of the grantor, as the administratrix of his estate, was the proper person to bring the suit for the benefit of his creditors ; and, as the party against whom the fraud was directed, she might maintain the bill in her own right. And it was further held that the heirs of the fraudulent grantor were properly joined as plaintiffs, on the ground that there was a resulting trust in favor of the person from whom they inherited the equitable estate.^ Section III. — Defendants. Suits in equity may be brought against all bodies politic and corporate except the State, and against all persons who are interested as defendants in the subject matter of litiga- tion. In the case of infants or persons of unsound mind, the court will appoint guardians to conduct their defence. And the plaintiff who brings a suit against an infant or person non compos mentis should procure the appointment of a guardian ad litem for the defendant, or judgment against him will be erroneous and voidable.^ (a.) Corporations. Corporations aggregate are to be sued by their corporate name. And it is not in general proper to make individual members of such corporations parties defendant ; though individual members and officers may be made parties for the purpose of making them answerable for unauthorized or illegal acts which they have done in the name of the cor- poration, or with its sanction.^ This is the English rule. Under our statutes no stockholder or officer can be made liable for the debts or contracts of the corporation, unless a judgment has first been recovered against the corporation.* 1 Gibson v. Hutchinson, 120 Mass. 32. 2 Crockett v. Drew, 5 Gray, 399 ; Swan v. Horton, 14 Gray, 179. " 1 Dan. Ch. Pr. (6th ed.) 161. * P. S. c. 106, § 62. 44 EQUITY PLEADINGS AND PKACTICB. (b.) Defendants out of the State. The general rule under our statutes, as to suits against absent defendants, is, that no personal action shall be main- tained against a person who is absent from the State at the time of the service of the summons, unless he had before that time been an inhabitant of the Commonwealth, or unless an effectual attachment of his goods, estate, or effects is made on the original writ, except in cases in which it is otherwise specially provided.^ That is, either the defendant or his property must be within the jurisdiction of the court. In case no attachment is made on the original writ, but an attachment is allowed pendente lite, under the statute, would that give the court jurisdiction of the suit? ^ Is not the present English practice an improvement upon ours? By that, service out of the jurisdiction of the writ of summons by which an action is commenced, or notice of such writ, may be allowed by the court or judge whenever the whole or any part of the subject matter of the action is land,or stock, or other property, situated within the jurisdic- tion, or any act, deed, will, or thing affecting such land, stock, or property ; and whenever the contract which is sought to be enforced, or rescinded, dissolved, annulled, or otherwise affected in such action, or for the breach whereof damages or other relief are or is demanded in such action, was made or entered into within the jurisdiction ; and whenever there has been a breach within the jurisdiction of any contract, wherever made, and wherever any act or thing sought to be restrained or remedied, or for which damages are sought to be recovered, was or is to be done, or is situated, within the jurisdiction.^ In all these cases the court there acquires jurisdiction of the cause and the party, so far as to enable the court to make 1 P. S. c. 164, § 1. » 1 Dan. Ch. Pr. (6th ed.) 164. 2 P. S. 0. 161, § 85. PARTIES TO A SUIT. 45 decrees required by the equity of the case. But in this Commonwealth the courts have no authority to make a decree in equity against a person who never was an inhab- itant of this State, and upon whom process has not been served within the State.^ This was the decision of the court in a suit wherein the bill was inserted in an original writ of attachment, to enforce the specific performance of a written contract for the conveyance of real estate situated in the county of Berkshire ; and the defendant's real estate in that county was attached on the writ. And the court in that case held, that the rule for giving notice to an absent defendant does not apply to this class of cases ; for a decree in personam against a party not within the jurisdiction of the court, and who never had been, would be wholly nugatory .^ But when a non-resident defendant in a suit for specific performance was personally served with notice in this State, and appeared and answered, it was held that a valid decree could be made against him.^ It has, however, been held, that the court may, in certain cases, make a valid decree for the conveyance of real estate, although the owner has never resided in this State and no service has been made upon him here. But the facts alleged and proved in the case in which the decision was made were sufficient to charge the land with a trust in favor of the plaintiff; and the defendant having refused to perform the trust, the ■ prayer of the bill was that the land might be conveyed to him by some person to be duly appointed by the court for that purpose.* It would not be a very great enlargement of the rule of equitable relief laid down in this case, for the court to decree, in accordance with the English rule, specific performance of 1 Spurr V. Scoville, 3 Cush. 578. * Macomber v. Jaffray, 4 Gray, 82 ; Moody v. Gay, 15 Gray, 457. » Dooley v. Watson, 1 Gray, 414; Pingree v. Coffin, 12 Gray, 288. * Felch V. Hooper, 119 Mass. 52. 46 EQUITY PLEADINGS AND PKACTICB. a contract in relation to real estate situated within the juris- diction of the court, although the defendant should be without the jurisdiction and never had been within it. In a case where the bill, filed in our court against a defendant residing in New York, sought relief only against him personally, and was served upon him by leaving a subpoena at his last and usual place of abode in New York, the defendant appeared specially for the purpose of excepting to the jurisdiction of the court, and moved that the injunction granted against him be dissolved. The motion was overruled by the single justice who heard the case, but it was subsequently allowed by the full court, - — that court saying that the defendant, by filing an answer to the bill after his motion had been over* ruled, and going to trial, not waiving his objection to the jurisdiction, did not lose his right to say that he did not withdraw his protest against the jurisdiction of the court.^ A bill praying for an injunction against one of several joint tortfeasors may be maintained without joining the others, just as an action at law may be maintained against any one of such wrong-doers, on the ground that each one is liable severally for the damage done by all.^ To the gen- eral rule, that to a bill against a partnership all the partners must be made parties, there is an exception when one or more of the partners are residents in a foreign country.^ To a bill against a fraudulent grantee to set aside the conveyance fraudulently obtained through an agent of the defendant, it is not necessary to make the agent a party defendant. But if the fraudulent grantee has conveyed the premises to an innocent purchaser, it is necessary to make the latter a party to the bill for the purpose of protecting his rights.* The following case furnishes a very good illus- tration of the rule by which the necessary or proper parties 1 Walling V. Beers, 120 Mass. 550. a hq jja,s3. 12. 8 Towle V. Pierce, 12 Met. 332. * Whittemore v. Cowell, 7 Allen, 448. PAKTIES TO A SUIT. 47 defendant are to be ascertained. The case was a bill against an infant to redeem a mortgage held by him. The infant was under guardianship, and it was held that the guardian was properly joined with the infant as co-defendant. For one object of the bill was to ascertain whether the guardian had received anything, and how much, on account of the debt due to the minor by way of rents and profits or otherwise. If he had not been made a party, the court must still have determined what sums he had so received ; and the amount thus ascertained would have been deducted from the amount due on the mortgage. But if the guardian had not been a party, he would not be concluded by the decree as to the amount found to have been received by him ; and in an after settlement between him and his ward, he might undertake to show the amount was less. "It is," says the court in this case, "one of the peculiar advantages of chancery jurisdic- tion, that the court can bring before them at once all persons having any interest or concern in the subject in contro- versy." ^ This of course is a statement of the general rule, by which the proper parties to a suit, both plaintiff and defendant, are to be determined ; and by a careful observance of it, in con- nection with the facts, the question as to the proper par- ties, in most cases, can be easily answered. And all that is attempted in this section is to give a sufficient number and variety of cases fully to illustrate the rule, without encum- bering the margin with a useless number of citations. It follows from the rule above stated, that bankrupts whose interests, whether legal or equitable, have devolved upon their assignees, need not be made parties to suits relative to any property which is affected by the bankruptcy or insolvency. Where, upon the dissolution of a partner- ship, one of the partners has received an assignment of all 1 Parker v. Lincoln, 12 Mass. 18. See also McCabe v. Bellows, 1 Allen, 269. 48 EQiriTY PLEADINGS AND PRACTICE. the partnership property, and executed a bond to his retiring partner to assume and pay the partnership debts, he does not thereby become liable to pay a debt due from the firm to a creditor, unless he has agreed to pay the same as his pri- vate debt.^ And therefore, where no such agreement exists, the creditor cannot maintain a bill in equity against such partner without making the retiring partner a party to the suit.^ A member of a corporation may be made a party defendant to a bill against the corporation for discovery and relief ; and although no relief can be had against the defendant as an individual corporator, he may be required to answer upon oath so much of the bill as relates to a discovery of matters afEecting the corporation.^ It is a principle of equity that a plaintiff in a bill for discovery is entitled to a full discovery of all material facts, under the sanction of the oath of the party in interest. The answer of a corporation is given un- der its common seal, and not under the sanction of an oath. An individual corporator is interested in the result of a suit against the corporation, and may therefore be examined on oath for purposes of discovery, although no decree for relief can be passed against him. In a suit against the officers of a mutual insurance company, who had fraudulently converted to their own use funds of the company placed in their hands to pay the claim of the plaintiff against the company, it was held that the company was a necessary party defendant, because the debt was due from the company, not from the officers ; the officers in paying it would act as agents of the company, and not on their own behalf. The funds belonged to the company. And where different persons have been liable to a payment (as in this case the officers and the company), it is the practice of a court of equity to require the presence of 1 Wild V. Dean, 3 Allen, 579. 2 Fowle V. Torrey, 131 Mass. 289; Bartlett v. Parks, 1 Cush. 82. « Wright V. Dame, 1 Met. 237. PARTIES TO A SUIT, 49 them all, to ascertain whether any of them have already made payment.^ For the mere purpose of discovery, there is no necessity, under our statutes, for making the officers of a corporation parties to a bUl for discovery against the cor- poration. For when the party to the suit is a corporation, the officers may be examined as if they were parties to the suit.2 1 Lyman v. Bonney, 101 Mass. 563; Deerfield v. Mms, 110 Mass. 116. 2 P. S. c. 151, § 8, c. 167, § 53. CHAPTER III. COMMENCEMENT OF A SUIT. Section I. A SUIT in equity may be commenced in this State by bill or petition with a writ of subpoena, according to the usual course of proceedings in equity, or the bill may be inserted in an original writ of summons, or summons and attachment, or by a declaration in an action of contract or tort, as the case may be, with or without an order for the attachment of the property or the arrest of the defendant, and made returnable at the terms of the court as established in the several coun- ties, or on the rule days established by the court.^ When a suit in equity is commenced by filing a bill in either the Supreme Judicial Court or the Superior Court, the plaintiff may, at his election, take out a writ of summons and attachment, or a trustee process, instead of a subpoena.^ By the tenth section of the act of 1883, it is provided that a bill in equity need not contain any address to the court, or the usual commencement, or any prayer for an answer, for general relief, or for process. The bill, except when it is inserted in a writ, shall be entitled in the proper court, and with the full title of the cause, containing the names and description of all parties. The bill may be signed by the party, or by his attorney, and shall require no other signature. 1 P. S. c. 151, § 5; Rules of Court, 1, 3, 4, 5. For a statement of the difference between a bill and a petition, see Belknap v. Stone, 1 Allen, 573. " St. 1883, 0. 223, § 11. COMMENCEMENT OF A SUIT. 51 All these minute and somewhat complicated provisions by statutes and rules of court might very well be replaced by the plain and simple method of commencing a suit in the Chancery Division of the High Court of Justice in England. The suit is there instituted by a proceeding called an action, vrhich is commenced by a writ of summons indorsed with a statement of the nature of the claim made, or relief required, and specifies the court to which the action is assigned.^ The writ, to make it conformable to our general practice in com- mencing suits, both at law and in equity, might be a writ of summons and attachment, instead of a summons only. Under the section of the statute last cited, the plaintiff will be required to ask specifically for the relief he seeks, and to this specific request it will no longer, as formerly, be neces- sary to add a general prayer for relief. Before the passage of this statute, the law was, that a bill in equity might be signed by attorney, and need not be sworn to, or contain any allegation that the person assuming to act as attorney was such in reality.^ Under the statute of 1883 the bill need not be sworn to unless the complainant asks for a preliminary injunction, in which case it is believed to be the very uniform practice of the court to require that it shall be sworn to or supported by proper affidavits. The bill must also be filed in the clerk's office before application for an injunction is made. A suit in equity may also be commenced by information, by the attorney-general or other public prosecuting ofiicer. The suit in this form is instituted in behalf of the Common- wealth, or of those who partake of its prerogative, or whose rights are under its peculiar protection, such as the objects of public charity. The matter of complaint is presented to the court, not by petition, but by informing the court of the rights claimed by the Commonwealth in its own behalf, or in behalf 1 1 Dan. Ch. Pr. (6th English ed.) 51. " Barns v. Lynde, 6 Allen, 305; Pope v. Leonard, 115 Mass. 286. 62 EQUITY PLEADINGS AND PRACTICE. of others, and of the invasion or detention of those rights. When the proceeding by information does not immediately affect the rights of the Commonwealth, the prosecuting officer depends on the relation of persons whose names are inserted in the information as relators ; and as the suit is carried on under their direction, they are regarded as responsible to the court for the propriety of the suit and the conduct of it. Sometimes the relator has an interest in the matter in dispute, of the injury to which interest he has a right to complain. In such case, the relator's personal complaint being joined to and incorporated with the information given to the court by the public prosecutor, they form together an information and bill, and are so termed. If it appears that the relator has no ground for relief, the bill may be dismissed, and the informa- tion retained, if a case is made for relief, for the regulation of the charity or other quasi public interest set forth in the information.^ There are several statute provisions authorizing proceedings by information.^ Besides these general forms of commencing suits in equity, there are many acts of the legislature giving to the court power to grant relief upon petition or otherwise, by injunction, or other proceeding in the nature of equity. As in the case of land sold for taxes ; ^ to compel the board of harbor commissioners to remove or alter buildings named in deeds given by them in behalf of the Commonwealth ; * pro- ceedings in relation to telegraph lines to compel the observance of regulations established for constructing the same, etc. ; * to restrain unlawful appropriations of money by towns ; ^ to restrain the use of trade-marks, in violation of the provisions of the statute ; ^ to restrain the use of buildings for hospital 1 Atty. Gen. v. Parker, 126 Mass. 222 ; Atty. Gen. v. Butler, 123 Mass. 304 ; Atty. Gen. v. Baker, 4 Mylne & Craig, 262 ; Dan. Ch. Pr. (5th ed.) 10. = P. S. c. 182; 0. 186, §§ 17-25; o. 106, §§ 81, 82. » c. 12, § 66. s c. 27, § 48. ' c. 76, § 7. * c. 19, § 15. « c. 27, § 129. COMMENCEMENT OP A SUIT. 53 purposes in certain cases ; ^ to prevent the use or erection of stables except upon conditions named in the statute ; ^ to restrain the use of any structure in violation of a city ordi- nance ; * to remove by summary process trustees in possession of a railroad under mortgage ; * to prevent railroad corpora- tions from entering on or using property taken under a stat- ute which does not make adequate provision for compensation therefor ; ^ to compel railroad corporations to comply with decrees, orders, etc. of county commissioners in relation to railroad crossings, etc. ; ® to decree sale of land subject to the payment of annuities ; '^ to compel street railway companies to observe orders duly made by city or town officers ; ^ to restrain insolvent banks from transacting business ; ® to order sale of land subject to contingent remainders j^" to order sale of stand- ing wood and timber in certain cases for the benefit of tenants and reversioners ; ■'^ to authorize the court to hear and deter- mine all matters arising under wills ;^^ giving to the Supreme Judicial Court general superintendence and jurisdiction of all cases arising under the insolvent laws, with power to hear and determine the case as a court of equity ; ^^ to authorize a debtor to bring a suit in equity instead of a writ of entry, to redeem land levied on to satisfy a judgment ; ^* to authorize the court to make all decrees necessary to insure safety of reservoirs and dams ; ^^ to remove cloud from title to real estate ; ^^ and to authorize the court to enter decrees in certain cases in relation to undischarged mortgages.^'' 1 p. S. c. 80, § 73. " c. 120, § 19. = c. 102, § 39. " c. 120, § 12. a c. 104, § 12. 12 c. 127, § 34. * c. 112, § 70. " c. 157, § 15. 6 c. 112, § 104. " c. 172, § 40. See 2 Cush. 141, « c. 112, §§ 117, 118, 120, 121, 136, 162, 168. ' c. 120, § 22. w c. 190, § 58. 8 c. 113, § 63. " c. 176. » 0. 116, §§ 6, 38. " St. 1882, c. 237. 54 EQUITY PLEADINGS AND PEACTICE. Section II. — Venue. By St. 1883, c. 223, § 18, it is provided that suits in equity- may be brought either in the Supreme Judicial or Superior Court, in any county where a transitory personal action between the same parties may be brought, as well as where such suits may be brought under the laws now in force. By statutes in force at the time the above-named statute was passed, suits for the redemption of land sold or set off on execution,^ and suits for the redemption and foreclosure of mortgages, are required to be brought in the county where the land is situated .^ Before the statute of 1883 was passed, the court had said that " the provisions of the statutes conferring jurisdiction in equity upon the court do not usually direct in what county suits in equity shall be brought, but leave that ques- tion to be determined by the nature of the subject matter, the analogies to be derived from actions at law, and the practice of courts of chancery." ^ The county in which a suit in equity may now be brought, under the new statute, may readily be determined by refer- ence to the provisions of law fixing the venue of transitory personal actions in force at the time that statute went into effect.* Transitory actions, except in cases in which it is otherwise provided, if one of the parties lives in the Commonwealth, shall be brought in the county where some one of them lives or has his usual place of business. If neither party lives in the Commonwealth, the action may be brought in any county.^ 1 P. S. c. 172, § 40. 2 c. 181, § 31. See Burlingame v. Hobbs, 12 Gray, 367. 8 Bradstreet v. Buttei-field, 129 Mass. 341, 342 ; Davis v. Parker, 14 Allen, 98. * See P. S. c. 161. 6 ,.. 161, § 1. COMMENCEMENT OF A SUIT. 55 Transitory actions by or against executors may be brought in the county where they might have been brought against the testator or intestate at the time of his decease.^ An action concerning land which lies in different counties may be brought in either county .^ Boston and certain other corporations are excepted from this provision. Actions against a county may be brought in the county where the plaintiff lives, in defendant county, or county adjoining, at election of plaintiff.^ Actions against town, city, or person for injury suffered from defective highway, are to be brought in the county where the town is situated or the person resides, except actions against Boston.* An action to enforce specific performance of a contract respecting land need not be brought in the county where the land lies.^ Section III. — Service of Process. The statute provides that every writ of original summons or subpoena issued in suits in equity shall be issued in the same manner, and the same number of days, at least, before the return day, as would be required for the service of an ori- ginal writ in an action at law between the same parties.^ The first rule in chancery, so far as it relates to service of process, is only a repetition of this statute. If the plaintiff elects to commence his suit by inserting the bill in a writ of original summons, or summons and attachment, or by declaration in an action of tort or contract, or by taking out a trustee pro- cess, the service should be made in the same manner as these 1 P. S. c. 161, § 2. ^ Ibid., § 3. See § 8. As to venue when Commonwealth is plaintiff, see § 4. ' Ibid., § 5. AVhen county is plaintiff, see § 6. * Ibid., § 7. As to actions by or against other corporations, see § 8. ^ Davis V. Parker, 14 Allen, 94. 8 P. S. c. 161, § 37. Ch. Eule 1. See Rules of Practice for Courts of Equity of United States, nos. 11, 12, and 13. 56 EQUITY PLEADINGS AND PRACTICE. several processes are required to be served in actions at com- mon law.^ The bill, petition, or declaration need not be in- serted in the separate summons, in the copy of the original writ to be served on the defendant, nor in the copy of the original writ deposited or left with or in the office of a regis- ter or other public officer, or officer of a corporation, or other person, for the purpose of making an attachment.^ It will be observed that by St. 1883, c. 223, § 5, all pro- cesses are to be made returnable at the next term after four- teen days from the date of the process, if required to be served fourteen days before the return day, or at the next term after thirty days from such date, if required to be served thirty days before the return day, or at any rule day within three months after the date of the process.^ The fourth chancery rule as recently amended by the court adopts this language of the statute. So that both by statute and rule, if only fourteen or thirty days intervene between the date of the process and the next term of the court, the process must be served on the day of its date, unless it is made returnable at a rule day. By other provisions of the Public Statutes, writs, etc. in equity are made returnable at the terms of the court as estab- lished in the several counties, or on rule days as established by the court, and are to be served fourteen or thirty days, as the case may be, before the return day, nothing being said about the date of the process.* This apparent, though not real, con- flict in the statutes, has caused embarrassment, and sometimes errors in the commencement of suits, which could readily be avoided by a slight amendment of the statute provisions. It is prescribed by rule, that, if a party shall not be found, a copy of the process may be left at his usual place of abode ; and the truth of tlie case being returned by the officer, if it shall appear to the court that the party has actual notice of 1 P. S. c. 161, §§ 26-37. « See also P. S. c. 161, § 23. = P. S. c. 151, § 6. * P. S. 0. 151, § 5; c. 161, §§ 27, 28. COMMENCEMENT OP A SUIT. 57 the suit, no other service shall be required ; otherwise such notice shall be given as the court shall order.^ In case of defendants residing out of the Commonwealth, additional service of process is to be made as prescribed by the rule of oourt.2 It will be noticed that by the first rule the subpoena is to be served in the same manner as other original writs of summons are by law to be served ; and by the fourth rule it is prescribed that, if a party shall not be found, a copy of the process may be left at his usual place of abode ; while by statute, if the summons is no served personally on the de- fendant, the original, or a copy, as the case may be, shall be left at his last and usual place of abode, if he has any within the Commonwealth known to the officer, and if he has none, it shall be left with his agent, tenant, or attorney, if he has any within the Commonwealth known to the officer. The rule is not so broad as the statute, but a service according to the statute would undoubtedly be held to be sufficient.^ Can a defendant in an equity suit be lawfully arrested upon the writ of summons and attachment which the plaintiff may take out instead of a subpoena ?* It is held by the court in an early case, based on St. 1823, c. 140, § 2, that a bill in equity between partners for an account, inserted in a writ of attach- ment, could not lawfully be served by arresting the defendant.^ The court apparently rested their decision upon the exact phraseology of the statute. They say, " Possibly, under the authority given to the court to issue such writs and process as may be necessary and proper to execute the powers given them, they might adopt this process" (a capias), "if they thought it a suitable one ; but considering that, by the rules adopted in reference to chancery jurisdiction, the subpoena is established as the proper process, except in cases where the legislature have authorized a writ of attachment, and as that 1 Ch. Rule 4. ■• St. 1833, c. 223, § 11. ^ Ch. Rule 5. * Commonwealth v. Sumner, 5 Pick. 160. 8 P. S. c. 161, §§31-34; o. 164, § 6. 68 EQUITY PLEADINGS AND PKACTICE. is not directly authorized in this statute, we should not in- cline to depart from the approved forms of chancery proceed- ings. It has been said that, in a suit at common law, on the same subject matter, the plaintiff in the suit may have his capias and arrest the defendant. This we do not deny, but it furnishes no reason for extending this power to a case to which it has not been applied by the legislature." The court in the case last cited takes notice of the fact, that there is no distinction in our statutes between a capias and a writ of attachment. By the Public Statutes it is expressly provided that a suit in equity may be commenced by inserting the bill in an original writ of summons, or of summons and attach- ment, or by a declaration in an action of contract or tort with or without an order for the attachment of the property or arrest of the defendant.^ If then the plaintiff elects, as he may do under the pro- visions of the recent statute,^ to file his bill in court, and take out a separate writ of summons and attachment, rather than to insert the bill in a writ of summons and attachment, may he have an order in his separate summons for the attachment of property, or for the arrest of the defendant ? The statute providing for filing the bill in court, and taking out a separate summons, does not, in terms, authorize an order for the arrest of the defendant, but only for the attachment of his property. If there is no distinction in our statutes between a capias and a writ of attachment, which was apparently the view of the court in Commonwealth v. Sumner, uhi supra, then it may perhaps be held that the statute authorizing a separate sum- mons and attachment also authorizes an order for the arrest of the defendant. A defendant in an equity suit, wherein the concluding prayer of the bill is that a writ of ne exeat may issue, may be arrested on such writ and held to bail.^ 1 P. S. c. 151, § 5. 8 Eice v. Hale, 5 Cush. 238. " St. 1883, c. 223, § 11. CHAPTER IV. APPEAEANCB. The return day of the process, in case of personal service, or where the defendant has personal notice of the suit, is the day of appearance ; and where no personal service is made and an order has issued under the fourth or fifth Chancery Rule of the Supreme Court, the return day of such order is the day on which the defendant is required to appear.^ And if the defendant does not appear and file his answer, plea, or demurrer within one month after the day of appearance, the plaintiff may enter an order to take his bill for confessed ; and the matter thereof may be decreed accordingly, unless good cause shall appear to the contrary .^ This rule renders unnecessary a more particular examination of the several processes for compelling an appearance, and those resorted to in default of an answer, which were known in earlier chancery practice, and which are still in use in some juris- dictions. This observation applies, however, to bills seeking relief, rather than to those of discovery only. In the latter class of cases, particularly, all courts of general equity juris- diction may undoubtedly resort to the necessary measures for compelling an appearance and answer.^ By the last rule cited it is provided that, "upon a second answer being ad- judged insufficient, costs shall be doubled by the court ; and the defendant may be examined upon interrogatories, and committed until he shall answer them." Of course, if it appears that the defendant is a minor, insane, or otherwise 1 See Ch. Kule 17, U. S. C. C. » Ch. Rule 18. 2 Ch. Rule 8. 60 EQUITY PLEADINGS AND PEACTICE. incapacitated from appearing and answering for himself, no valid decree can be entered until a guardian or other duly appointed representative has an opportunity to appear and answer for him. An appearance may be general or special. A general appearance gives jurisdiction over the party, and cures defects in previous process and its service.^ A party may appear for the purpose of making a special motion without waiving his rights; as, for instance, to object to the jurisdiction of the court.^ Under our statutes and rules, the defendant is not required to give the plaintiff notice of his* appearance. In this respect our practice would be improved by adopting that prevailing in some of the other States, where such notice, accompanied with a demand for a copy of the bill, within the time limited by rules, is required, and on filing an affidavit of the service of such notice, and that no copy of the bill has been delivered to the defendant, he may have a decree dismissing the suit with costs.^ The defendant's appearance may be voluntary, as where he enters an appearance after service of the subpoena upon him, without waiting for other process ; or compulsory, as where he is brought in on an attachment for contempt ; or it may be gratis, as where he enters an appearance before he is served with subpoena. The last-named method of appearance is resorted to when the defendant wishes to make immediate application to the court to be discharged from arrest on a writ of ne exeat, or to dissolve an injunction, or for other instant relief. If service of process has been made upon a minor, the court will appoint a guardian ad litem, before any further progress, can be made in the suit ; and the same will be done in case of idiots and insane persons, if their guardians otherwise ap- pointed refuse to appear and defend the suit. Corporations 1 Parker v. Williams, 4 Paige, 439. ^ Felch V. Hooper, 119 Mass. 52. ' Jennison Ch. Pr. 40. APPEAEANCE. 61 aggregate appear by their solicitors ; and the answer of a corporation may be signed by its attorney or solicitor.^ The usual method of compelling a corporation aggregate to answer was by process of distringas and sequestration ; but as our statutes contain ample provisions for examining on oath the officers in case of suits against corporations, there can be no greater necessity of resorting to the process of sequestration in suits against corporations, than to that of attachment in suits against persons. But in both cases, if the due administration of justice between parties requires it, the court would undoubtedly have recourse to these pro- cesses for compelling an answer ; for " the right to these ulterior processes results from the general authority of the court to compel obedience to its own commands." ^ Chan- cellor Kent says : " If an answer be essential, as in bills of discovery, an answer must be compelled by the process for contempt ; but there is no need of this when the bill is for relief, and states sufficient ground. All that is wanting is the admission of the facts ; and if the defendant has appeared, and will not answer, he ought to be concluded in the same manner as he is by neglecting to plead to a declaration at law." 3 Taking Bills pro Confesso. " Formerly, where the nature of the relief to be granted depended upon the discovery to be elicited from a defendant by his answer, the mere taking a party into custody, or sequestrating his property, could not answer the object of doing justice to the plaintiff. The court, therefore, adopted a method of rendering its process effectual, by treating the defendant's contumacy as an admission of the plaintiffs case. In cases, therefore, where the whole line of process had been ineffectually employed against the defendant, the court made 1 St. 1883, c. 223, § 10. « Caines v. Fisher, 1 Johns. Ch. 9. 2 Cooper Eq. PI. 16, 17. 62 EQUITY PLEADINGS AND PEACTICB. an order that the facts of the bill should be considered as true, and decreed against the defendant according to the equity arising upon the case stated by the plaintiff. This proceeding is termed taking a bill fro confesso.^' ' The present practice in this Commonwealth, and the same practice prevails in the courts of other States and in those of the United States, is to take the bill for confessed upon the failure of the defendant to appear and answer, without undertaking to compel an appearance and answer by the processes of attachment, sequestration, &c., which are " the pains and penalties of the law " referred to in the minatory part of the subpoena which is still in use, and furnishes an illustration of the fact, that ancient forms of the law are often retained long after they have ceased to possess any practical value. It would be error to take a bill pro confesso against several defendants, unless service has been made upon all ; the order should be made against those only upon whom due service has been made. For the purpose of having a bill taken pro confesso, an insufficient answer is treated as no answer.2 An amended bill must be answered, although the original bill has been fully answered before the amendment, or the plaintiff will be entitled to an order to have the bill taken for confessed.^ Gratuitously putting in an answer will not be sufficient to discharge an order for taking a bill pro confesso, yet the court may, upon reasons shown, upon motion of the defendant, discharge the order ; but before doing so, the court will ex- amine the proposed answer, in order to form a judgment as to its propriety and fitness.* The order for taking a bill pro confesso takes effect from the time when it is pronounced.^ 1 Dan. Ch. Pr. (5th ed.) 499. 2 Davis J'. Davis, 2 Atk. 22; Buckingham v. Peddicord, 2 Bland, 447. 8 Jopling ». Stuart, 4 Ves. 619; Ch. Rule 21; Trust and Fire Ins. Co. u. Jenkins, 8 Paige, 589. ^ Hearne v. Ogilbie, 11 Ves. 77. ^ James v. Cresswicke", 7 Simons, 142 ; Wooster v. Woodhull, 1 Johns. Ch. 539. APPBAEANCE, 63 Upon a bill being taken 'pro confesso for want of an answer, tbe distinct and positive averments of the bill are taken to be true without other proof.^ If the charge is not stated with sufficient certainty in the bill, the plaintiff will still be re- quired before final decree to establish his claim by satisfactory proof.2 Taking a bill pro confesso will not preclude the de- fendant from denying the amount of the plaintiff's demand, if the same is referred to a master for hearing;^ but the plaintiff will not in such case be required to prove the con- tract set forth in the bill. Under the Equity Rules of the United States courts, after an order that the bill be taken pro confesso, the cause pro- ceeds ex parte, and the matter of the bill may be decreed by the court at the next term thereof accordingly, if the same can be done without an answer, and is proper to be decreed ; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer ; and the defendant, when arrested on such process, will not be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or judge thereof may direct, as to pleading to or fully answering the bill within the time prescribed in the order. These rules of the United States courts, it will be observed, are more comprehensive, and much more explicit, than our own upon the same subject ; but upon the general principles of chancery practice, and with the full chancery powers now possessed by our courts, must not the practice under these rules of the Federal and State courts be substantially the same ? * Under the existing English practice, if the defend- ant does not answer within the time allowed, and procures 1 Piatt V. Judson, 3 Blackf. 235. 2 Pegg 0. Davis, 2 Blackf. 281. 3 Pendleton v. Evans, 4 Wash. C. C. 391. « Ch. Pvules 18 and 19, U. S. C. C. 64 EQUITY PLEADINGS AND PKACTICB. no enlargement of the time, he is subject to the following liabilities: 1. An attachment may be issued against him. 2. He may be committed to prison to be brought to the bar of the court. 3. The plaintiff may file a traversing note, or proceed to have the bill taken pro confesso against him.^ The traversing note is an answer put in by the plaintiff himself, when the defendant is in contempt for refusing to answer, and the answer thus put in by the plaintiff has the same effect as if put in by the defendant. Such answer, besides the formal parts thereof, states that the defendant leaves the plaintiff to make such proofs of the several matters in the bill alleged as he shall be able, or be advised, and submits his interests to the court.^ And thereupon the suit proceeds in the same manner as if the answer had been made by the defendant himself. The proceedings upon contempt will be treated in a separate chapter, whether the contempt arise from failure to answer, or for violating or disobeying any other order or decree of the court. 1 Dan. Ch. Pr. (5th ed.) 488. (When cited in this manner the Ameri- can edition edited by Cooper is meant.) 2 Dan. Ch. Pr. (5th ed.) 514. CHAPTER V. THE PLEADINGS IN A SUIT. Section I. — G-enerdlly. It has long been the policy of legislation in this State, to abbreviate and simplify pleadings in all forms of litigation. It is nearly fifty years since an act was passed dispensing with the merely formal parts of indictments and complaints in criminal cases ; and by St. 1836, c. 273, special pleading in civil actions was abolished, and the general issue substi- tuted for special pleas. The forms of pleading in actions at law were still further simplified by the Practice Act of 1852. By St. 1817, c. 87, the Supreme Judicial Court was authorized to make all necessary rules and orders for the convenient and orderly conducting of its chancery business. And by the Revised Statutes, c. 81, § 10, the court was authorized to make rules for regulating the practice and conducting the business of the court, and was required once at least in every seven years to revise such rules, for the purpose, among other improvements, of " simplifying and shortening the pleadings and other proceedings." Under this authority the court in 1836 adopted " Rules for the Regulation of Practice in Chancery." The fourth rule prescribed that " All unnecessary prolixity and repetition in the pleadings shall be avoided. The bill shall contain a full, clear, and explicit statement of the complainant's case, and conclude with a general interrogatory. But the complainant, when his case requires it, may propose specific interrogatories ; and may allege, by way of charge, any particular fact, for the purpose of putting it in issue. The common charge of fraud 6 66 EQUITY PLEADIKGS AND PBACTICE. and combination shall be omitted, except in cases where it is intended to charge fraud and combination specifically." But notwithstanding this attempt to reform the chancery practice in this State, so little progress had been made as late as 1853, that the commissioners on law reform, whose report has heretofore been referred to, spoke of it as " the compli- cated and forbidding system of equity procedure, imperfect in itself, and still more imperfectly understood by practitioners." Neither branch of this reproachful condemnation can, with equal justice, be repeated respecting the present system of equity procedure in this State, or of those who are engaged in its practice ; although no one who has examined the sub- ject will venture to affirm that our equity jurisprudence and practice have reached that full development, and the sym- metrical proportions found in other jurisdictions, where the courts have for a much longer time possessed full chancery powers. But in point of fact the " system of equity procedure " was never any more the subject of just criticism than was the system of pleading in actions at law. In the latter, the party was obliged to state his claim or defence in positive and exact terms, in such manner as to put his demand or defence on a single issue ; and it often became necessary to repeat the count or plea in a great variety of forms, in language slightly varying, so as to meet the evidence which might be offered. And in the books one case is found in which ninety-eight counts besides the money counts were contained in one declaration on one-pound notes ; in another case, two hun- dred and eighty-six counts, besides the money counts; and in another case, four hundred and eighty counts in debt for penalties were contained in one declaration ; and in each of these cases the court refused, upon application made for that purpose, to reduce the number of counts. And in our own court, before the statutes authorizing reforms in crimi- nal pleadings, the, court adhered with such strictness to the THE PLEADINGS IN A SUIT. 67 very letter of the old forms, that, if the complaint or indict- ment omitted the useless averment contra formam statuti, the proceedings would be quashed.^ A too great devotion to forms, rather than substance, led to the same evils in practice in all departments of the law ; and the same causes have brought about reforms in all. An indictment is only a declaration in which the government sets forth its accusations against the accused ; a declaration in an action at law is only a statement of the plaintiff's claim against the defendant, and seeks redress through processes of the law. A biU in equity is nothing more ; and it is well for the cause of justice, and fortunate for those who are com- pelled to obtain it through the courts, that equity, no longer regarded as one of the occult sciences, has been brought within the reach of all, and made available to all, without needless expense or unnecessary delays. A lawsuit, whatever form it takes, does not create any new facts ; it does not change the laws of proof, nor develop or require any new faculties of the mind by which these laws are employed in the investigation of historical or scien- tific truth, or in the prosecution of legal inquiries. Section II. — Form of the BiU. A SUIT in equity, except where the practice has been changed by legislation, is usually commenced by a petition, or bill, which contains, or should contain, a complete state- ment of the plaintiffs claim and the relief he seeks. The two most general divisions of bills are (1.) into those which are oiiginal, and (2.) those which are not original. Ori- ginal bills bring before the court matters not previously litigated by the same parties. Bills not original relate to 1 Criminal pleadings in some parts of the Commonwealth, even at the present time, are uniformly found to contain a mass of verbiage, the necessity for which was abolished by legislation fifty years ago. 68 EQUITY PLEADINGS AND PKAOTICE. matters which are an addition to, or continuance of, an original bill.^ Of original bills there are two divisions : 1. Original bills praying relief ; and 2. Original bills not praying relief. And the first division is again subdivided into, — 1. Original bills praying the decree of the court touching some right claimed by the plaintiff, in opposition to rights claimed by the de- fendant; 2. Bills of interpleader; and 3. Certiorari bills. Bills not praying relief are, — 1. Bills to perpetuate testi- mony ; and 2. Bills of discovery. In works on equity pleading it has been usual to speak of an original bill as consisting of nine parts : — 1. The address, — naming the court in which the bill is filed. 2. The introduction, — containing name, place of abode, &c. of the plaintiff. 3. The stating part, — containing a statement of the facts on which the plaintiff rests his case and seeks relief. 4. The confederating part, — charging a confederacy or combination by defendants to injure the plaintiff. 6. The charging part, — charging the untruth of the pre- tences intended to be set up by the defendant. 6. The jurisdiction clause, — averring a state of facts necessary to give the court jurisdiction. 7. The interrogatory part, — containing special or general interrogatories to the defendant. 8. The prayer for relief, — special or general, or both. 9. The prayer for process, — by which the appearance of the defendant is enforced. But there no longer exists a necessity in this Common- wealth of treating the subject in this manner, for the form of the bill has been essentially changed by recent legislation. It is now provided by statute, that the bill need not contain any address to the court, or the usual commencement, or any 1 Story Eq. PI. § 16 ; Dan. Ch. Pr. (5th ed.) 305. THE PLEADINGS IN A SUIT, 69 prayer for an answer, for general relief, or for process. But the bill, except -when it is actually inserted in a writ, shall be entitled in the proper court, and with the full title of the cause, containing the names and descriptions of all the parties. The bill may be signed by the party or by his attorney.^ It is provided by an earlier statute, that the material facts and circumstances relied on by the plaintiff shall be stated with brevity, omitting immaterial and irrelevant matters. If a discovery is sought, it may be by inserting a prayer there- for in the bill, petition, or declaration, or by interrogatories.^ If the plaintiff is not an inhabitant of the Commonwealth, the bill, before its entry, must be indorsed by some sufficient person who is such inhabitant.* Our statutes prescribing the essential averments in a bill in equity, taken in connection with the schedule of forms annexed to the statute, will bring the practice here in this respect into close conformity with that of the Chancery Division of the English court, under their latest orders and rules. These provide that " the statement of the plain- tiffs complaint, and of the relief or remedy to which he claims to be entitled, must be as brief as the nature of the case will admit ; and must contain, as concisely as may be, a statement of the material facts on which the plaintiff relies, but not the evidence by which they are to be proved. It must be divided into paragraphs numbered consecutively ; each paragraph containing, as nearly as may be, a separate allegation ; dates, sums, and numbers being expressed in fig- ures and not iu words ; and must state specifically the relief which the plaintiff claims, either simply, or in the alterna- tive, and may also ask for general relief; and if the plaintiff's claim is for discovery only, the statement of claim must show it. When the plaintiff seeks relief in respect of several 1 St. 1883, c. 223, § 10. See form in schedule following § 17. a P. S. c. 151, § 7. « P. S. c. 161, § 24. 70 EQUITY PLEADINGS AND PBAOTICE. distinct claims or causes of complaint founded upon separate and distinct facts, they must be stated, as far as may be, separately and distinctly." ^ This statement of claim under the English practice is equiv- alent to the statement of facts and circumstances which, under our practice, is required to be made in the bill itself. There a suit in equity is instituted by a proceeding called an action, which is commenced by a writ of summons indorsed with a statement of the nature of the claim made, or relief required, and the statement of claim is delivered afterwards, within a time prescribed by another rule. If, however, the plaintiff seeks merely to recover a debt or liquidated demand in money payable by the defendant, arising upon a contract, the writ of summons may be specially indorsed with the par- ticulars of the amount sought to be recovered, after giving credit for any payment or set-off. And in this case the plaintiff may deliver, as his statement of claim, a notice to the effect that his claim is that which appears by the indorse- ment upon the writ, unless the court or judge orders him to deliver a further statement. Under our statute, as we have seen, a suit is commenced by filing a bill in court, and taking out a writ of summons and attachment, a trustee process, or a subpoena, at the election of the plaintiff; or the bill may be inserted in an original writ of summons, or of summons and attachment, or by a declaration in an action of tort or contract, as the case may be. And it is further provided by our statutes, that, " When a case in equity is commenced by bill or peti- tion inserted in an original summons, or of summons and attachment, or by declaration in an action of contract or tort, the bill, petition, or declaration need not be inserted in the separate summons, or in the copy of the original writ to be served on the defendant." ^ And when the suit is commenced by filing the bill in court, the plaintiff may, at his election, 1 1 Dan. Ch. Pr. (6th ed.) 400. ' P. S. c. 151, § 6. THE PLEADINGS IN A SUIT. 71 take out a writ of summons and attachment, a trustee process, or a writ of subpoena, to serve upon the defendant. There is, therefore, no provision in our statutes, or in the rules of court, corresponding to the English rule, requiring a statement of the plaintiff's claims to be delivered to the de- fendant. In this particular, our practice would be essentially improved by adopting the English rule. Under the English practice, as has been shown, all suits in equity are commenced by a proceeding called an action, while under ours a suit may be commenced by bill, petition, or action. What is the differ- ence between a bill and petition ? It was first provided by St. 1838, c. 163, that a suit in equity might be commenced by petition, and by St. 1855, c. 194, which was intended to reform and simplify pleadings in equity, it was provided that a suit might be commenced either by bill or petition. By St. 1856, c. 38, this provision was repealed, and that statute required suits in equity to be commenced by bill or writ of attachment. In commenting upon these statutes the court say : " It is not clear what was the distinction contemplated by the legis- lature between a bill and a petition. In chancery proceed- ings, a petition is usually an interlocutory proceeding for an order of course, or some special matter, or sometimes for a collateral purpose. The service, proceedings, and orders upon it, are less formal than upon a bill." ^ When the General Statutes were enacted, in 1859, the language of the act of 1855 was adopted in relation to the mode of commencing suits in equity, and provided that such suits might be commenced by bill, petition, or action , as they may now be under the Public Statutes. This change in the language of the statutes probably re- sulted from inadvertence rather than design, and, as used iu this connection, the two words hill and petition are synony- 1 Belknap v. Stone, 1 Allen, 573, 574. See Gibbens v. Shepard, 125 Mass. 543. 72 EQUITY PLEADINGS AND PRACTICE. mous ; so that any suit which may properly be commenced by bill may also be commenced by petition. In the case last cited, which was decided in 1861, the court held that they could not proceed to grant the relief prayed for until the bill was properly amended, as it did not conclude with a general interrogatory, as was required by the fourth rule of court then in force. This fourth rule was adopted with reference to the interrogatory part of a bill in equity, which, under the former practice, was deemed a necessary part of the bill ; and the court, as late as 1864, held that it was necessary a bill in equity should conclude with a general interrogatory,^ although St. 1862, c. 40, would seem to have rendered such conclusion unnecessary. When the court revised its rules in 1870, this provision, requiring a biU to conclude with a general interrogatory, was omitted, and it is not included in the rules adopted in 1884 ; and the rule of which it formed a part has disappeared altogether, leav- ing the question as to the structure of the bill to be deter- mined by reference to the provisions of the statutes upon that subject.^ By these provisions, all that was ever really essential to a bill in equity has been retained ; that is, a statement of the facts which the plaintiff expects to prove, and a specifica- tion of the relief he seeks, together with the legal grounds of such relief. And it is just as essential now as it ever was, that this statement of facts " must contain the plaintiff's case, and his title to relief ; and every necessary fact must be dis- tinctly and expressly averred, and not left to be explained by inference, or by reference to other parts of the bill." ^ 1 Ames V. King, 9 Allen, 259. 2 P. S. 0. 151, § 7; St. 1883, c. 223, § 10. 8 Wright V. Dame, 22 Pick. 99. THE PLEADINGS IN A SUIT. 73 Section III. — Matter of the Bill. The bill must show the plaintiff has a right to the thing demanded, or such an interest in it as to give him a right to institute a suit for it.^ The bill must also state a case within the equity jurisdiction of the court.'^ The plaintiff must not only show he has an interest in the subject matter of the suit, but it must be a present existing interest ; a mere possibility or probability of a future title will not be sufficient to sustain a bUl.^ If the plaintiff have a present interest, the minute- ness of that interest will not defeat his right to maintain a bill in relation to it. " A present interest, the enjoyment of which may depend upon the most remote and improbable contingency, is nevertheless a present estate." * In addition to showing that he has an interest in the subject matter of the suit, the plaintiff must set forth in his bill and show that he has a present right to institute a suit respecting it.® If it appears that some preliminary act is necessary to com- plete the plaintiff's title to the subject of the suit, the per- formance of that act must be averred in the bill.® The bill must also show that the defendant is liable to the plaintiff, or that he has some interest in the subject of the suit.^ This care in framing the bill is essential, for the plaintiff can only recover upon the case made in the bill, and not upon that made in the evidence. In other words, a suit in equity must be tried and decided upon the exact issues raised by the pleadings in the case. 1 Search v. Search, 12 C. E. Green, 137. * Chase v. Palmer, 25 Maine, 341. ' May V. Parker, 12 Pick. 34 ; Jackson v. Ashton, 8 Peters, 148; Story Eq. PI. §§ 260, 261; 9 Jur. n. s. 1045, 1188, 801. * Story Eq. PI. § 301; 2 Story Eq. Jur. 1511; Allan v. Allan, 15 Ves. 135; Davis ». Angell, 31 Beav. 223. 5 Story Eq. PI. 625; Champlin v. Parish, 3 Edw. Ch. 581. » Story Eq. PI. §§ 257, 257 a, 258; Walburn v. Ingilby, 1 M. & K. 61; Colbum V. Duncombe, 9 Sim. 151. ' Story Eq. PI. §§ 262, 263, 264. 74 EQUITY PLEADINGS AND PEACTICB. The bill must further show such privity between the plain- tiff and defendant as gives the former the right to sue the latter. An unsatisfied legatee has an interest in the estate of his testator, yet he has no right to institute a suit against the debtors to the estate for the purpose of compelling them to pay their debts in satisfaction of his legacy ; for there is no privity between the legatee and debtors, who are only answerable to the executor.^ But a creditor may maintain a bill against the executor or administrator of his deceased debtor and a debtor of the estate where the executor or administrator is insolvent, or where there is collusion be- tween the executor and debtor of the estate, and in some other special cases.^ In Hagan v. Walker, Curtis, J., giving the opinion of the court, says: "That a single creditor may maintain a bill against an administrator of a deceased debtor, for a discovery of assets and the payment of his debt, there can be no doubt. That in some cases he may join with the administrator a third person, who is in possession of property which is amenable to the payment of the debt, is also clear. And the equitable right of the creditor to join a third person, and have a discovery and appropriation of assets held by him, has never been limited to these particular cases"; that is, to cases where the personal representative of the estate is insolvent, or where there is collusion between him and the debtor of the estate. It was formerly the general rule, that courts of equity would not interfere between partners, except for the purpose of dissolving the partnership or winding up its affairs after dissolution. But now the same courts will not, if they can avoid it, allow a partner to derive advantage from his own misconduct by compelling his copartner to submit either to 1 Dan. Ch. Pr. (5th ed.) 322, 323. 2 Longu. Majestre, Admr. et al., 1 Johns. Ch. 306; Hagan v. "Walter, 14 How. 34. THE PLEADIKGS IN A SUIT. 75 continued wrong or to a dissolution ; and so will entertain a bin for an account, by one partner against another, which does not pray also for a dissolution of the partnership.^ Two or more distinct subjects cannot be united in the same bill, as this would render the bill multifarious, which defect in pleading is treated of in another connection. Scandalous and impertinent statements should be avoided in framing a bill. " Scandal consists in the allegation of anything which is unbecoming the dignity of a court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause ; to which may be added, that any unnecessary allegation bearing cruelly upon the moral character of an individual, is also scandalous." ^ Allegations of facts not material to the decision of the case are impertinent. The best test, says Chancellor Kent, by which to ascertain whether the matter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties.^ It may be stated as an established rule, that the court will only grant such relief as the plaintiff is entitled to upon the case made by the bill ; and since the prayer for general relief is abolished, only such relief can be granted as is properly prayed for specifically. 1 2 Lindley on Partn. (4th ed.) 894 ; Richards v. Davies, 2 Russell & Mylne, 348. 2 Dan. Ch. Pr. (5th ed.) 348; Story Eq. PI. §§ 266, 267. « Woods V. Morrell, 1 Johns. Ch. 106; Christie v. Christie, L. R. 8 Ch. App. 499. CHAPTER VI. CROSS-BILLS, SUPPLEMENTAL BILLS, BILLS OF EEVIVOE, ETC Section I. — Cross-Bill. It is a rule in equity pleading, that when the defendant in a pending suit seeks any discovery or relief against the plaintiff in such suit, or against a co-defendant, he must do so by an original or cross-bill of his own.^ Any affirmative relief must be sought by a defendant either by a cross-bill or by an independent suit, and can never be granted upon facts as stated in the answer.^ A cross-bill is treated as an auxil- iary suit, or as a dependency upon the original suit, and can be sustained only on matter growing out of the original bill. New parties cannot be introduced into a cause by a cross-bill.^ A cross-bill should be filed before the issue on the original bill is joined, and before the publication of the evidence, unless the plaintiff in the cross-bill will go to the hearing on proofs already published.* It was held by Lord Hardwicke to be a rule of practice, that no cross-bill should be filed, after the principal cause had been proceeded in, unless on special motion with notice, that the court might judge of it on the circumstances, and not of course.^ 1 Andrew v. Gilman, 122 Mass. 474; Holdemess v. Kankin, 2 De G., F. «E J. 258, 271. 2 Story Eq. PL § 398; Lube Eq. PI. 142. « Dan. Ch. Pr. (5th ed.) 1548-1556; Story Eq. PI. §§ 389, 899; Shields v. Barrow, 17 How. 146. * Story Eq. PI. § 395; Cartwright v. Clark, 4 Met. 110. » Aylet V. Easy, 2 Ves. Sen. 336. BILLS. 77 It is a well-settled principle, that a court of equity, after it has acquired jurisdiction of a subject matter in controversy between parties, will, as far as possible, settle all questions in litigation touching it, and do complete justice to all par- ties, so that there may be an end of controversy. A cross- bill for relief is therefore proper in cases where, in the original suit, all things in litigation touching the subject matter cannot be brought before the court, but the defend- ant, in order to obtain a complete settlement of the con- troversy, is entitled to some relief which the scope of the plaintiffs suit will not afford him.^ If the facts relied upon by the defendant constitute a direct defence to the plaintiff's alleged cause of action, they should be set up by answer or plea ; but if the facts are of such a character as to show that the defendant is entitled to a decree against the plaintiffs right to prosecute his action, the facts should be set forth in a cross-bill. If, for example, the plaintiff's bill is based upon an alleged ownership of cer- tain land, it will be no defence for the defendant to set up in his answer an agreement by the plaintiff to convey the land to the defendant ; but if the agreement is in such form as that equity can enforce specific performance, the defendant may set it up in a cross-bill, and thus obtain a decree for the conveyance of the land to himself.^ In bills for an account, and for specific performance of contracts, the court may grant relief to the defendant with- out his filing a cross-bill. For when the plaintiff calls for a statement of an account between himself and the defendant, it is assumed that he consents to the court granting a decree for the party in whose favor the balance of the account may be found to be. And when specific performance of a con- 1 Richards v. Todd, 127 Mass. 169, 170; Story Eq. PI. § 391; Dan. Ch. Pr. (5th ed.) 1648 ; Mitford and Tyler Eq. PI. 178. « Eowe V. Teed, 15 Ves. 372; Cas. in Eq. PI. 249; Howells v. Wilson, 34 Beav. 573. 78 EQUITY PLEADINGS AND PEACTICB, tract is called for in the plaintiff's bill and the parties differ as to the terms of the contract, the suit proceeds upon the ground that the court will decree the specific performance of the contract, whether it be found as claimed by the plaintiff or by the defendant. The last two classes of cases constitute exceptions to the general rule as to the necessity of the defendant's filing a cross-bill to obtain any relief against the plaintiff in the original suit.^ Section II. — Supplemental Bill. The twenty-fifth rule for the regulation of practice in chancery provides that, " When the circumstances of the case are such as to require a bill of revivor, or supplemental bill, or bill in the nature of either or both, . . . the requisite alle- gations may be made by way of amendment to the original bill." The terms of this rule are very plain, but how is the prac- titioner to determine when the circumstances are such as to require a bill of revivor, etc. ? Manifestly only by a thorough knowledge of the former practice in courts of chancery as to bills of revivor, supplemental bills, and bills in the nature of these. While therefore the rule may, at first, seem to simplify practice, it has in fact no such effect, except to authorize the plaintiff to meet the new aspect of his case by way of amend- ments, after he has discovered that the circumstances are such as to require a bill of revivor or supplemental bill. Whatever difficulties may a,ttend one of these methods of perfecting an original bill will be found common to both. Under what circumstances, then, does a supplemental bill, or bill of reviyor, or bill in the nature of either, be- 1 Latouche v, Dunsany, 1 Sch. & Lef. 137, 166, 167; Chamley v. Dunsany, 2 Id. 690, 709-718; Hood v. Clapham, 19 Beav. 90, 96; Clark V. Tipping, 4 Beav. 588. BILLS. 79 come requisite, according to the established rules of chan- cery practice ? If, after a suit is commenced, any circumstances occur which, without abating the suit, occasion an alteration in the interest of any party, or render it necessary that new parties should be brought before the court, the proper method of doing it is by supplemental bill.^ A party who had no cause of action at the time of filing his original bill cannot maintain his suit by a supplemental bill upon a cause of ac- tion that accrued after the original bill was filed, arising out of the same transaction which was the subject of the original bill.^ When an event happens after filing the original bill, which gives a new interest or right to a party, it should be set out in a supplemental bill.^ The supplemental bill must follow the original, and set forth the actual and subsequent damage arising from the same cause named in the original bill ; * and it must not contradict the statements of the origi- nal bill.^ Matters necessary to perfect the complainant's case, that have occurred since the filing of the original bill, maybe brought in by supplemental bill.^ A supplemental bill may be resorted to, to cure defects in an original bill, or to put new matter in issue at a stage of the cause when the defects cannot be reached by amendment;^ or to bring in a necessary party to the proceedings, after it is too late to accomplish the same thing by amendment.^ A supplemental bill may be filed in aid of a decree ; but merely to give fuller effect to 1 Story Eq. PL §§ 335, 336; Greenleaf v. Queen, 1 Peters, 148. « Pinch V. Anthony, 10 Allen, 477; Williams v. Winans, 7 C. E. Green, 580. ' Saunders v. Frost, 5 Pick. 276; Mitf. Ch. PI. 49; Gove v. Lyford, 44 N. H. 528. * Bardwell v. Ames, 22 Pick. 375. ' Thompson v. Judge, 2 Drew. 414. Per contra, see Allen v. Spring, 22 Beav. 615. ' Milner ». Harewood, 17 Ves. 145. ' Story Eq. PI. § 333' 5 Ensworth v. Lambert, 4 Johns. Ch 606. 80 EQUITY PLEADINGS AND PKACTICE. the decree, and not to obtain relief of a different kind; which latter can only be accomplished by a bill in the na- ture of a supplemental bill.i Defects which can be cured by amendment cannot be the ground of a supplemental bill. A plaintiff cannot support a bad title by acquiring a good one after filing his original bill, and then bring forward his newly acquired title by a supple- mental bill.2 If the plaintiff has a good inchoate title, or the original biU was sustainable, and the supplemental bill only enlarges and changes the kind of relief, or sets forth formal acts that were necessary to complete the inchoate title, the supplemental bill can be maintained.^ A party who acquires an entirely new interest in the subject matter of the suit by purchase pen- dente lite, may become a party to the suit by a supplemental bill, or by original bill in the nature of a supplemental bill.* So when a plaintiff is deprived of his interest in the subject matter of the suit pendente lite, or becomes bankrupt or a lunatic, the suit may be continued by bringing in the proper parties by a supplemental bill; or if, after a suit has been instituted by a lunatic, his committee dies or ceases to act, and a new committee is appointed, the latter is to be made party to the •suit by supplemental bill.^ If a plaintiff suing en autre droit dies pending the suit, the person to whom his right or interest passes may continue the suit by sup- plemental bill.® 1 Story Eq. PI. § 338 and notes; HofE. Ch. Pr. 393. 2 Davidson v. Foley, 3 Bro. C. C. 598; Winn v. Albert, 2 Maryland, Ch. 42; Atty. Gen. ». Avon, 3 DeG., J. & S. 637; Godfrey v. Tucker, 33 Beav. 280. s Mutter V. Chauvel, 5 Kussell Ch. 42; Edgar v. Clevenger, 2 Green Ch. 258. * Mills V. Hoag, 7 Paige, 18; Van Hook v. Throckmorton, 8 Paige, 33; Mason v. York & Cumberland R. E. Co., 52 Maine, 82. « Ld. Red. 63 ; Dan. Ch. Pr. (5th ed.) 85 ; Williamson v, Jeffreys, 12 W. R. 403: Williams v. Winans, 5 C. E. Green, 394. 8 Stoiy Eq.' PI. § 340. BILLS. 81 In a suit relating to the personal property of a married woman, where a decree had directed a settlement on the wife and children, but before the completion of the settle- ment the wife died, the court held that the children had a right to the settlement, and could assert that right by a supplemental bill.^ If an 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 occurring subsequent to the filing of the original bill.^ The plaintiff, in a bill to enforce a trust in which he and his children are in- terested, may by supplemental bill enforce rights acquired by assignment from his children after the original bill was filed.^ In this case the plaintiff, among other things, prayed that the defendant might be decreed to convey to him certain real estate which the plaintiff averred the defendant held in trust for him. The plaintiffs children were subsequently made parties to the suit by amendment, after which the plaintiff obtained the assignment above spoken of, and then filed his supplemental bill, to which the defendant and the children demurred, which demurrer was overruled on the ground that, the plaintiff being entitled to relief under the original bill, he could properly set forth in a supplemental bill facts oc- curring subsequent to the filing of the original bill, showing that he was entitled to more extensive relief than he could have received under his original bill. A supplemental bill cannot be filed and allowed as matter of course, but only by leave of court, after the supplemental matter has been verified by affidavit or by proof. It must be shown that the supplemental matter has arisen since the commencement of the original suit, or that the plaintiff, with- out fault on his part, had no available knowledge thereof at 1 Murray v. Lord Elibank, 10 Ves. 84. « Candler v. Pettit, 1 Paige, 168. » Jaques v. Hall, 3 Gray, 194. 6 82 EQUITY PLEADINGS AKD PRACTICE. ' an earlier stage of the suit.^ The right of demurring to a supplemental bill is waived by going into a full hearing before a master upon the original and supplemental bills, without first filing a demurrer.^ The distinction between a supplemental bill and one in th^ nature of a supplemental bill has been held not to be artificial, for in those cases in which a supplemental bill proper has been filed, if there has been no decree, the suit may proceed after the filing of such bill in the same manner as if the original plaintiff had continued such ; but in the case of an original bill in the nature of a supplemental bill, the whole case is open and a new defence may be made ; the pleading 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 no otherwise of advantage than as it may be an inducement to the court to make a similar decree. But in the case of a mere supplemental bill the benefit of the origi- nal decree, if obtained, is expressly given to the new plaintiff by the supplemental decree, and he is entitled to stand in the place of the plaintiff in the original suit, and to have the ben- efit of the proceedings upon it, and to prosecute the decree and take the necessary steps to render it effectual.^ The distinction between original bills in the nature of supplemental bills, and supplemental bills proper, is treated by other writers as merely technical rather than substantial. " The most prominent distinction," says Story, " seems to be that a supplemental bill is properly applicable to those cases only where the same parties, or the same interest, 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 since the institution of the suit, are brought before the court." * 1 Pedrick v. White, 1 Met. 76. * Story Eq. PI. § 345. 2 Pinch V. Anthony, 10 Allen, 470. » Dan. Ch. Pr. (5th ed.) 1598, 1599. BILLS. 83 In cases in which the interest of the plaintiff has been transmitted by act of law, the person upon whom it has deTolved is entitled to the former proceedings in the suit, and he may file either a bill of revivor or a supplemental bill. Where a new party comes in by the same title as the original plaintiff, but does not claim by assignment from him, as where a tenant in tail succeeds to a title to sue in equity, upon the death of a preceding tenant in tail, he may proceed by supplemental bill.^ Where the whole interest of a defendant is determined, and the property is vested in another by a title not derived from the former party to the suit, as in case of the determination of an estate tail, and the vesting of a subsequent remainder in possession, the benefit of the suit against the person so coming into possession must be obtained by original bill in the nature of a supplemental bill. So where, pending a suit against trustees of a charity, some of the trustees die, and others are removed, and new trustees are appointed, the new trustees must be made parties by bill in the nature of a supplemental bill before further proceed- ings in the case.^ Strictly speaking there is no cause in court as against a defendant until he has appeared. And if he dies before entering his appearance, the suit cannot be continued against the person in whom his interest has vested by a mere supple- mental bill, but it must be by a bill of revivor, or bill in the nature of a supplemental bill.^ When a defendant becomes bankrupt after decree, his assignee cannot obtain leave, by petition, to attend, upon taking the account under the decree, but must be made party to the suit by supplemental bill filed by himself or by the plaintiff in the original suit.* 1 Lloyd V. Johnea, 9 Ves. 37, 57. ^ Story Eq. PI. § 350 and note. 8 Heard v. March, 12 Cush. 583; Dan. Ch. Pr. (5th ed.) 1602. * Phillips V. Clark, 7 Sim. 231. 84 EQUITY PLEADINGS AND PRACTICE. If the plaintiff in a creditor's suit dies after filing the bill, his personal representative may continue the suit by bill of revivor ; if he does not choose to do that, another creditor who has come in under the decree and established his claim as creditor may prosecute the suit by supplemental bill.i A new party, representing the interest of a former party, coming into the case by a supplemental bill, stands on the same conditions as the former party, is bound by his acts, and may be subject to the costs from the beginning of the suit.2 Section III. — Bills of Revivor. The law and practice respecting this class of bills, as they formerly existed, have become less important by reason of the statute provisions for reviving in the representatives of de- ceased parties. Our statutes now provide that, if a party to a suit in equity dies, and the cause of action by the rules of equity may be revived against or in favor of the executor, administrator, heir, devisee, or other person, such representative may, in lieu of proceedings to revive the same, appear or be summoned to prosecute or defend in like manner as in a suit at law.^ The statute containing this provision was passed in 1865. Before that, it was held that a suit to redeem mortgaged premises abated by the death of the plaintiff, and the heir could revive it by bill of revivor. And where one of the plaintiffs in such a suit died, it was held that the heir and the other surviving plaintiff should continue the suit by a supplemental bill, and not by an original bill.* In the case of Pingree v. Coffin (1858), it was held that, on the death 1 Dixon V. "Wyatt, 4 Mad. 392. » P. S. c. 165, § 19. 2 Story Eq. PI. § 342. * Putnam v. Putnam, 4 Pick. 139 ; Saunders u. Frost, 5 Pick, 275. BILLS. 85 of the sole plaintiff in a bill to obtain title to real estate, the devisee of the plaintiff could not become a party to the suit without a bill in the nature of a bill of revivor.^ This practice was entirely changed by the statute above cited.2 A new trustee, appointed under the provisions of the Public Statutes, c. 141, § 6, may be permitted to intervene, in an equity suit commenced by his predecessor, by a peti- tion, and need not resort to a bill of revivor.^ But these statutes do not, however, provide for all the cases where bills of revivor, or bills in the nature of a bill of revivor, are by the rules of chancery necessary. In some jurisdictions it has been held that, where representatives become such by devise, grant, or other title which may be contested, a bill in the nature of a bill of revivor must be filed.* To entitle a party to revive a suit, it is necessary there should be a privity between him and the party whose death caused the abate- ment. If he has assigned his interest in the subject of the suit, it can only be continued by his assignee by an original bill in the nature of a bill of revivor.^ If an abatement takes place in a case where there is an original bill and cross-bill, a bUl of revivor is usually neces- saiy, unless both bills relate to an account, and there is a decree for one of the parties. A bill of revivor will not lie upon an abatement after answer to a bill of discovery.^ The rules as to parties by whom bills of revivor may be filed,' and against whom they may be filed,^ and as to the frame of the bill,^ and as to the defences by demurrer, plea, and answer,^* are based on the same principles as the rules in these several 1 12 Gray, 288. 2 Cheney v. Gleason, 125 Mass. 166. 8 Murray v. Dehon, 102 Mass. 13. * Douglas V. Sherman, 2 Paige, 360. 6 Story Eq. PI. § 349 and note. 8 2 Barb. Ch. Pr. 38; Story Eq. PI. § 356. ■> Dan. Ch. Pr. (5th ed.) 1538. » Ibid. 1540. 9 Story Eq. PI. § 374. i" Ibid. § 617 and note 3. 86 EQUITY PLEADINGS AND PRACTICE. respects relating to original bills. As, for instance, in drafting a bill of revivor, all averments must be made that are neces- sary to show the plaintiff is entitled to the relief he seeks. The bill should state the original bill, the several proceedings thereon, and the abatement ; show the complainant's right to revive the suit, stating so much new matter as is necessary to show how he becomes entitled to revive the cause, and that it ought to be revived and stand in the same condition with respect to the parties to the original suit as it did when the abatement occurred.^ The distinction between bills of revivor and bUls in the nature of a bill of revivor is, that the first, in case of death, are founded on privity of blood or representation by opera- tion of law ; the latter, on privity of estate or title by the act of the party. In the former case, nothing is in issue except whether the party is heir or personal representative of the original party ; in the latter, the nature and opera- tion of the act by which the privity in estate or title was created.^ Upon a bill in the nature of a bill of revivor, the benefit of the former proceedings is obtained ; differing in this respect from a bill in the nature of a supplemental bill, which is open, as has been shown, to new defences.^ This bill, like a bill of revivor proper, should state the original bill, the proceedings upon it, the abatement, and how the interest of the original party has been transmitted to the complainant ; state the validity of the transmission and the rights which have accrued under it. The prayer of the bill should be that the suit may be revived, and that the com- plainant may have the benefit of the proceedings in the original bill.* 1 Story Eq. PI. § 374; Mitf. Eq. PI. 76. 2 Story Eq. P). § 379; Slack v. Walcott, 3 Mason, 508. 8 Mitf. Eq. PI. 72. * Phelps V. Sproule, 4 Sim. 318; Story Eq. PI. § 386. BILLS. 87 Section IY. — Bills of Review. A BILL of review may be granted to reverse errors appar- ent on the face of a decree, or upon newly discovered facts. Under the English practice, a bill of review could not be maintained until after the decree had been enrolled. But here, all decrees in equity, as well as judgments at law, are matters of record, and are deemed to be enrolled as of the term at which they are passed, whether actually enrolled or not.^ In the English practice the decree embodies the substance of the biU, pleadings, and answers, and the pleadings cannot be referred to in support of the bill of review. The decree alone can be looked at for the purpose of discovering an error in law.^ In the courts of the United States, the decree usually contains a mere reference to the proceedings, without embodying them in the decree ; and for the purpose of exam- ining errors of law, the bill, answers, and other proceedings are, in our practice, as much a part of the record as the decree itself ; for it is only by a comparison with the former that the correctness of the latter can be ascertained.* " There is a great distinction," says Lord Eldon, " between error in the decree and error apparent. The latter does not apply to a merely erroneous judgment. If I am to hear this cause upon the ground that the judgment is wrong, though there is no error apparent, the consequence is, that in every instance a bill of review may be filed ; and the question whether the cause is well decided will be argued, and not whether the decree is right or wrong on the face of it."* To support a bill of review, the party is not at liberty to go into the evidence at large to establish an objection to the 1 Dexter v. Arnold, 5 Mason, 303-311. 2 Trulock V. Eobey, 15 Simons, 277. ' Whiting V. Bank of United States, 13 Peters, 6 ; Story Eq. PI. § 407; 5 Mason, 311. < Perry v. Phelips, 17 Ves. 178 ; Haig v. Homan, 8 Clark & Fin. 320. bo EQtriTY PLEADINGS AND PEACTICB. decree founded on the supposed mistake of the court in its deductions from the evidence.^ A bill of review lies only after, and to reverse, a final decree. Only parties and their privies in representation can have a bill of review, strictly so called. Only persons having an interest in the cause are entitled to maintain a bill of review. Generally, all parties to the original bill should join in a bill of review.^ A bill of review for errors apparent on the face of the record will not lie after the time when a writ of error could be brought.'' The time within which a writ of error may be commenced under our statutes is six years.* The rule that, to entitle a person to maintain a bill of review, he should have obeyed and performed the decree, is not universal : there are exceptions to it. As if an act be decreed to be done which extinguishes the party's right at common law, as making an assurance or release, acknowledging satisfaction, cancelling bonds or evidences, and the like, these parts of the decree are to be spared until the bill of review is determined.^ If the decree directs an act to be done by the defendant after the plaintiff has done a certain other act, and the plain- tiff has not performed his part, it cannot be objected to the defendant's filing a bill of review that he has not obeyed the decree.^ If the party is unable to perform the decree, he must move for an order to stay what is proper to be stayed, and should make oath to the fact of his inability. To support a petition for leave to file a bill of review for newly discovered facts, it must appear that the new matter 1 Whiting V. Bank of United States, uhi supra. " Webb V. Pell, 3 Paige, 368; Bank of United States v. White, 8 Pet. 262. 8 Story Eq. PI. § 410. •• P. S. c. 187, § 4. 6 2 Dan. Ch. Pr. (3d ed.) 1635; Massie v. Graham, 3 McLean, 41; Griggs V. Gear, 3 Gilman, 2. ° Partridge u. Usborne, 5 Russ. 251. BILLS. , 89 has come to the knowledge of the party or his agent after the decree, or after the time when it could have been used in the former cause, and that the party could not, with reasonable diligence, have acquired a knowledge of the new matter before the decree was passed.^ The matter must not only be new, but it must be material.^ Section V. — Bills of Interpleader. Whebe two or more persons claim the same thing, by differ- ent or separate interests, and another person, not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver property in his possession, and he fears he may suffer injury from their conflicting claims, he may exhibit a bill of interpleader against them, praying that they may be compelled to interplead, so that the court may determine and decree to whom the debt, duty, or other thing belongs.^ It must appear by the bill that the plaintiff himself has no interest in the subject matter of the controversy, and that there is some specific chattel or definite sum of money to which different persons in the same right or privity of estate make claim.* The bill should also set forth the several claims of the defendants, so that it may appear whether they are of the same nature and character. But it will be sufficient to show the nature of the claims, without setting out the facts on which they depend.^ For where the claim- 1 Dexter v. Arnold, 5 Mason, 312, 320; Livingston v. Hubbs, 3 Johns. Ch. R. 124; Clapp v. Thaxter, 7 Gray, 384. 2 Ord V. Noel, 6 Mad. 127: Wiser v. Blachly, 2 Johns. Ch. 488; Jen- kins V. Eldredge, 3 Story C. C. 299. » Cobb V. Rice, 130 Mass. 231; Story Eq. PI. § 291; Dan. Ch. Pr. (5th ed.) 1560; Cooper Eq. PI. 45, 56. * Lincoln v. Rutland & Burlington R. R. Co., 24 Vt. 639; Angell v. Hadden, 15 Ves. 244; Morgan v. Marsack,2 Merivale, 110; Glyn v. Dues- bury, 11 Sim. 139; 10 Jur. n. s. 611; 12 W. R. 1043. « Shaw V. Coster, 8 Paige, 339; Lozier v. Van Sann, 2 Green Ch. (N. J.) 271, 277. 90 EQUITY PLEADINGS AND PKACTICB. ants assert their rights under adverse title, and not in privity, and where their claims are of a different nature, the bill cannot be maintained.! The bill should also show that the plaintiff is in doubt as to which of the claimants the debt or duty ia due, or to which the property belongs, and that he cannot safely pay to one without being exposed to a suit by the other.2 It should also appear by the bill that there are par- ties in esse capable of interpleading, otherwise the bill will be dismissed.^ It is essential to a bill of interpleader that it should set forth a clear right in the plaintiff to call upon the defendants to interplead. If it appears that the plaintiff is the agent of one of the defendants only, he cannot maintain the bill. While, as has been said, the plaintiff must show in his bill that he claims no interest in the res, and that he is a mere holder of the stake, which is claimed by the defendants, yet it is no valid objection to a bill of interpleader if it appears that the plaintiff has an interest merely in the question, but not in the subject matter of the suit. In a bill of interpleader an affidavit is required of the plaintiff, that he does not act in collusion with either of the defendants. And if the bill is filed by an officer of a corpo- ration he must make affidavit that he does npt collude, and that to the best of his knowledge the company does not col- lude, with any of the defendants.* A bill of interpleader not accompanied with such affidavit is demurrable." This is not the rule in all the States.^ ' Third National Bank of Boston v. S., W., & B. Lumber Co., 132 Mass. 410, and cases there cited. 2 Shaw V. Coster, 8 Paige, 339; Farley v Blood, 30 N. H. 361; Parker V. Barker, 42 N. H. 98. 8 Story Eq. PI. 295; Browning v. Watkins, 10 Sm. & M. 482. * Bignold ti. Audland, 11 Sim. 24; Story Eq. PI. 297; Hamilton v. Marks, 5 DeG. & S. 638. 5 Metcalf V. Harvey, 1 Ves. 248; Shaw v. Chester, 2 Edw. Ch. 405; 30 N. H. 354. ' Jerome v. Jerome, 5 Conn. 352. BILLS. 91 In a bill of interpleader strictly so called, the plaintiff only asks that he may, under the decree of the court, pay the money, or deliver the property, to the party to whom it of right belongs, and m&y thereafter be protected against the claims of all the defendants named in his bill. And after the court has decreed an interpleader, and the plaintiff has fuUy performed the duty required of him, or paid the money into court, he ceases to be any longer a party to the suit.^ But there are cases where a bill in the nature of a bill of interpleader may be maintained by a party in interest to ascertain and establish his own rights, where there are other conflicting rights between third parties. Where a party is entitled to equitable relief against the owner of property, and the legal title is in dispute between two or more per- sons, he may file a bill in the nature of a biU of interpleader against the several claimants for relief.^ So, in certain cases, the purchaser of property may maintain a bill in the nature of a bill of interpleader against adverse claimants of the purchase money. And a party who has offered a reward for the recovery of stolen property may maintain a bill of like character to ascertain to which of several claimants the reward justly belongs.^ A bill of interpleader not filed by the nominal plaintiff, but by his attorney of record, at the expense and for the benefit of one of two claimants of a fund, cannot be main- tained.* The only question properly before the court at the hearing on a bni of interpleader is whether the defendants should interplead. There is no hearing at such time as to the respective rights of the defendants to the fund or property » Lincoln v. Kutland & Burlington R. R. Co., 24 Vt. 639. 2 Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384 ; George v. Pilcher, 28 Gratt. (Va.) 299; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Min. 7. » 2 Story Eq. Jur. 824; Bedell v. Hoffman, 2 Paige, 199. * Provident Inst, for Savings v. White, 115 Mass. 115. 92 EQUITY PLEADINGS AND PRACTICE. in the custody of the plaintiff in the bill of interpleader.' The defendants are summoned to appear and show cause why they should not interplead, and if either fails to appear and answer, the bill is taken as confessed as to him, and that it was properly filed, and that his claim to the fund is groundless.^ Section JVI. — Bills for Instructions. Parties acting in a fiduciary character, and holding funds in trust under wills or deeds which are adversely claimed by different persons as cestuis que trust, may apply to a court of equity for instructions or directions as to the proper execu- tion of their trust. We have no doubt, says Chief Justice Shaw, that the equitj'- jurisdiction of this court, given by statute in all cases of trust arising in the settlement of estates, is broad enough to extend to cases where the trustees are actors, and seek the aid and direction of a court of equity, where there is doubt and difficulty, and where there are conflicting claims on the part of different parties to the same property or rights under the instrument by which such trust is created.^ This was a case where the trust arose under a will, but the same rule of practice had been applied by the court in cases of trust created by deed.* It has also been held, that a bill for instructions in the execution of a trust may be maintained by an administrator de bonis nan, who was also a trustee under the will. The suit was brought under the rule, say the court, allowing any one acting under judicial 1 Toulmin v. Keid, 14 Beav. 499; Catherall v. Davies, 1 GifE. 326; E. & W. India Dock Co. v. Littledale, 7 Hare, 57; Thames & Medway Canal Co. v. Nash, 5 Sim. 280; Leonard v. Jamison, 2 Edw. Ch. 136. 2 Badeau v. Rogers, 2 Paige, 209. 8 Treadwell v. Cordis, 5 Gray, 348; Hooper v. Hooper, 9 Cush. 127; Hyde v. Wason, 131 Mass. 450. " Dimmock v. Bixby, 20 Pick. 368. BILLS. 93 appointment in charge of a trust, who is threatened with suits or otherwise embarrassed with conflicting claims, to apply to this court for instructions in regard to the admin- istration of the trust, and for protection therein.' And in such suit all persons supposed to have an interest in the subject matter, or upon whom it is claimed that the decree should be conclusive, may be brought before the court to show cause, &c. And the principal facts to be set out in the bill are : " 1. The fiduciary possession of a power, of which some disposition is required to be made publicly ; 2. Conflicting claims, or the probability that such may arise ; 3. 'No adequate means of determining them otherwise, so as effectually to protect the trustee from the risk of future hability or controversy." ^ A bill for instructions cannot be maintained by an admin- istrator or trustees until it can be shown by a settlement of the estate that they will come into possession of trust funds.^ A doubt is suggested in one of the last cited cases whether a bill in equity can under ,any circumstances be maintained by an administrator for the purpose of obtaining the instructions of the court as to the distribution of the assets of the estate of his intestate.* A plaintiff in a bill of interpleader, or to obtain instruc- tions, is not permitted to take part in the argument of the questions involved in the suit.'' Nor can the solicitor of the plaintiff be appointed to represent contingent interests under the bill.^ Nor can the counsel for the plaintiff in such bill be allowed to act for any of the defendants.^ 1 Putnam v. Collamore, 109 Mass. 511. ^ Hji^. " Muldoon V. Muldoon, 133 Mass. 111. * Proctor V. Heyer, 122 Mass. 528. See 133 Mass. 115; 129 Mass. 160 and 424. 6 Hoifghton V. Kendall, 7 Allen, 73. « Gordon v. Green, 113 Mass. 260. ' Prov. Inst, for Savings v. White, 115 Mass. 115; Ch. Rule 26. CHAPTER VII. MODES OF DEFENCE. Section I. — Generally. There are five modes of defence, of which a defendant in equity may avail himself, according to the nature and the exigencies of his case ; 1. A demurrer ; 2. A plea ; 3. An answer, properly so called ; 4. A negation, or matter in avoidance, embodied in the shape of an answer; and 5. A defence found at the hearing as the production of the whole case as then presented for adjudication.^ SECTioif II. — Demurrer. When the ground of defence is apparent upon the bill itself, either from the matter contained in it, or from defect in its frame or in the case made by it, the proper mode of defence is by demurrer. By his demurrer the defendant in effect says, admitting the matters of fact stated by the bill to be true as therein set forth, they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer. And he demands the judgment of the court whether he shall be compelled to answer to complainant's bill, or that part of it to which the demurrer applies.^ As a demurrer proceeds on the ground that the facts stated in the bill are admitted to be true, they cannot be disputed in arguing the question, whether the defence thereby made be good or not, even though it should 1 Chancellor Bland in Salmon «. Clagett, 3 Bland Ch. R. 125. = Dan. Ch. Pr. (5th ed.) 564, 565. MODES OF DEFENCE. 95 appear that some of the facts set forth in the bill are mis- stated.i This rule as to the admission of the truth of matters set forth in the bill applies only to those which are well pleaded. The rule of pleading in respect to the effect of a demurrer is the same in equity as at common law.^ Demurrers to the substance of the bill will be sustained for any one of the following causes : 1. That the plaintiff has no interest in the subject matter of the bill. 2. That, although the plaintiff has an interest therein, yet the defend- ant is not answerable to him but to some other person. 3. That the defendant has no interest in the subject mat- ter. 4. That the plaintiff is not entitled to the relief he has prayed. 5. That the value involved in the suit is beneath the dignity of the court. 6. That there is a want of proper parties. 7. That the bill is multifarious. 8. That the plain- tiffs remedy is barred by length of time. 9. That it appears by the bill there is another suit pending for the same matter. 10. That the plaintiff has an adequate remedy at common law. A demurrer may be to the whole bill, or to a part only of the bill ; it may be to the relief prayed, or to the discovery only, or to both. And if the demurrer is sustained as to the part of the bill asking for relief, it will also be good as to the discovery, for if the plaintiff shows no case for relief he can- not be entitled to a discovery .^ But this rule,' as to the effect of a general demurrer to a bill seeking both relief and dis- covery where the party is not entitled to relief, is not adopted in all jurisdictions. In a' suit against a corporation and certain members of the 1 York MaBuf. Co. v. Cutts, 18 Maine, 204; Lea v. Robeson, 12 Gray, 280; Harmer v. Gooding, 3 DeGex & Sm. 410 ; Wright v. Plumptre, 3 Mad. 490. 2 Wootten V. Burch, 2 Maryland Ch. K. 190. « Loker v. Eolle, 3 Ves. Jr. 4; Ryves v. Ryves, Id. 347; Gordon v. Simpkinson, 11 Ves. 509; Speer v. Crawter, 17 Ves. 216; 9th Rule of Court. 96 EQUITY PLEADINGS AND PKACTICE. corporation, praying relief and discovery, to which there was a general demurrer, it was held that, although the plaintiff was not entitled to relief as against the individual members of the corporation, yet as he was entitled to discovery from them, the demurrer could not be sustained. The court in that case say : " The question is, whether the demurrer shall hold, inas- much as the plaintiff has sought for relief as well as discov- ery. We adopt the old rule of pleading in equity, that on a general demurrer to the whole biU, if there is any part, either as to the relief or discover}', to which the defendant ought to put in an answer, the demurrer, being entire, ought to be overruled. This was formerly the practice in England, and at present continued in New York. The defendant should answer as to the discovery and demur as to the relief." ^ In this case it was also held, that, after a written demurrer to the whole bill had been overruled, the defendant might demur ore tenus at the hearing as to a part of the bill.^ " If any part of the bill is good, and entitles the complain- ant either to relief or discovery, a demurrer to the whole bill cannot be sustained. It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defence. He may demur, answer, and plead to different parts of a bill. So that if a bill for discovery and relief contains proper matter for one, and not for the other, the defendant should answer the proper, and demur to the improper matter." ^ In demurring, answering, and pleading to different parts of the same bill, care should be exercised, so that each of these modes of defence shall be applied to different and distinct parts of the bill, and that, as applied, each is consistent with 1 Wright V. Dame, 1 Met. 241 ; Higinbotham v. Burnet, 5 Johns. Ch. 186; Conant v. Warren, 6 Gray, 562. 2 1 Met. 241. See also Crease v. Babcock, 10 Met. 531. ' Story, J., in case of Livingstone v. Story, 9 Pet. 658; Robinson v. Guild, 12 Met. 323. MODES OP DEFENCE. 97 the other ; so that one does not overrule the other. If there is a demurrer to the whole bill, an answer to a part thereof is inconsistent ; and the demurrer will be overruled. If there is a demurrer to part of a bill, there cannot be a plea or answer to the same part, without overruling the demurrer.' Chancellor Kent in overruling a demurrer said, " The answer and the demurrer each goes to the whole bill ; and it is a settled rule in pleading, that a defendant cannot plead or answer, and demur to the same matter ; the former will overrule the latter. It is inconsistent for a defendant to say, he ought not to answer to a bill, and yet answer it fully." ^ This well-settled rule of pleading was abolished in England by an order adopted in 1841 by the Court of Chancery. And the 37th Rule in Equity, adopted by the Supreme Court of the United States in 1842, provides that "No demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea." The 34th Rule in Chancery, adopted by the Supreme Judicial Court of Massachusetts in 1836, estab- lished as the outline of practice " the practice of the High Court of Chancery in England, so far as the same is not re- pugnant to the Constitution and laws of the Commonwealth, nor to these rules, or such other rules as the court may from time to time make." At the time of the adoption of this rule, the above-mentioned well-settled rule in chancery was in force in the English court.^ In 1870 our court repealed all its existing rules, and es- tablished others for the regulation of practice in chancery. The above named 34th Rule was not included in the new rules, and is not included in the rules adopted in 1884. And among these rules there is none corresponding to the 1 Story Eq. PI. § 442. 2 Clark V. Phelps, 6 Johns. Ch. 214. s Dormer v. Fortescue, 2 Atk. 282; Jones v. Strafford, 3 P.'Will. 80. 7 98 EQUITY PLEADINGS AND PRACTICE. 37th Rule of the Supreme Court of the United States. It would seem, therefore, that in this State the former and well- settled rule in equity pleading, as stated by Chancellor Kent, is still in force. When the discovery sought would subject the defendant to punishment, or to a penalty or forfeiture, he may protect him- self by demurrer.^ Want of jurisdiction is good ground for a general demurrer, but to sustain such a demurrer it must appear that no sub- stantial part of the complaint is within the jurisdiction of the court.2 A demurrer will also be sustained where it appears by the bill that the plaintiff has as effectual and complete a remedy in a court of law as in equity. But it has been repeatedly held that this objection should be taken at the earliest opportunity, or it will be considered as waived.* If the bill shows an incapacity on the part of the plain- tiff to sue, or to sue alone, that furnishes good ground for a general demurrer ; and this objection extends to the whole bill, and advantage may be taken of it, as well in the case of a bill of discovery merely, as in the case of a bill for relief.* If there are several complainants, and some have an interest in the subject matter of the bill and others have not, a general demurrer will be sustained.^ When it appears from the bill that the value of the matter in controversy is insufficient to give the court jurisdiction, the defendant may move to have the biU dismissed ; if the value, though below the jurisdiction of the court, does not appear I Story Eq. PI., §§ 591, 597. '^ Boston Water Power Co. v. Boston & Worcester R. K. Corp., 16 Pick. 520, 521. 8 Clark V. Flint, 22 Pick. 2-37; First Cong. Soo. in Raynham e. Trus- tees, &o., 23 Pick. 153 ; Russell v. Loring, 3 Allen, 125, 126 ; Crocker v. Dillon, 133 Mass. 91; Cobb v. Rice, 130 Mass. 231. * 1 Dan. Ch. Pr. (3d ed.) 580, 581. * Clarkson o. De Peyster, 3 Paige, 336 ; Dias «. Bouchaud, 10 Paige, 4.45. MODES OP DEFENCE. 99 Oil the face of the bill, it may be pleaded in bar of the suit. The value is to be exclusive of costs.^ " The powers of a court of equity are not to be called into exercise to consider matters of trifling amount, or to recover nominal damages. The rule de minimis is applied in equity with reasonable strictness. In New York the rule is that a suit in equity will not be maintained when the amount is less than one hundred dollars. That however is, we believe, fixed by statute. No such statute exists here, but a similar principle is applied." ^ Debts due different persons severally cannot be joined in one bill, and so by uniting several small claims bring the amount within the jurisdiction of the court, and a general demurrer to such a bill was sustained.^ The defence of the statute of frauds may be made by demurrer. Thus, a bill to enforce a trust respecting real estate, not arising by implication of law and not evidenced by any writing, all which appeared on the face of the bill, was held to be demurrable.* The doctrine of the English Court of Chancery, that the vendor of real estate by an absolute conveyance has a lien on such real estate for the unpaid purchase money, without any agreement in writing to that effect, has not been adopted here ; and a bill in equity to enforce such a lien is held by our courts to be demurrable.® A general demurrer will be sustained for multifariousness. And the demurrer need not specify the particular parts of the bill which are multifarious.® 1 Bradt v. Kirkpatrick, 7 Paige, 62 ; Moore ». Lyttle, 4 Johns. Ch. 183. 2 Cummings v. Barrett, 10 Cush. 190; Smith v. Williams, 116 Mass. 512, 513. " Chapman v. Banker & Tradesman Pub. Co., 128 Mass. 478. 4 Walker v. Locke, 5 Cush. 92, 93 ; Slack v. Black, 109 Mass. 499; Campbell v. Brown, 129 Mass. 23. 6 Ahrend v. Odiome, 118 Mass. 263-264. « 1 Dan. Ch. Pr. (3d ed.) 584; Pope v. Leonard, 115 Mass. 288. 100 EQUITY PLEADINGS AND PEACTICB. After a written demurrer to the whole bill has been over- ruled, the defendant was allowed to demur ore tenus to the part of the bill which was demurrable.^ Demurrers to bills of discovery only will lie for the follow- ing reasons : 1. That the subject is not cognizable in any municipal court of justice. 2. That the plaintiff is not enti- tled to the discovery by reason of some personal disability. 3. That the plaintiff has no title to the character in which he sues. 4. That the value of the suit is beneath the dignity of the court. 5. That the plaintiff has no interest in the subject matter, or no proper title to institute a suit concern- ing it. 6. That, although the plaintiff has an interest in the subject matter of the suit, and has a title to institute it, yet he has no right to call upon the defendant to answer his demand. 7. That the defendant has no interest in the sub- ject matter of the suit which entitles the plaintiff to institute it against him. 8. That the object of the bill is to enforce a penalty or forfeiture.^ A demurrer must be accompanied by a certificate that it is not intended for. delay .3' In an action at law the attorney filing a demurrer is required to certify that he is of opinion that there is probable ground in law for the demurrer to make it a fit subject for judicial inquiry, and that it is not intended for delay.* By chancery rules of the United States courts a similar certificate is required, and that it shall be supported by the affidavit of the defendant.^ By Chancery Rule XIII. a defendant, instead of filing a formal demurrer, may insist on any special matter in his answer, and have the same benefit therefrom as if he had demurred to the bill. Such answer need not be accompanied by a certificate that it is not intended for delay .^ After the 1 Wright V. Dame, 1 Met. 241. 2 Story Eq. PI. § 549. * P. S. c. 167, § 12. 8 P. S. .:. 151, § 10. 6 Rule 31. « M. R. L. F. Association ». Claflin, 9 Allen, 102. MODES OP DEFENCE. 10i> case has been reserved and heard upon the demurrer, it is then too late to raise the objection that the demurrer is unaccompanied by the certificate required by the statute.^ When the demurrer is contained in the answer, as pro- vided by Chancery Rule XIV. (now XIII.), and the demur- rer is overruled, no order to answer over is necessary.^ It has been repeatedly held that, under the statutes giving the court limited jurisdiction in equity, a bill in equity is demur- rable unless it is made to appear affirmatively on the face of the bill that the case comes within the jurisdiction.^ The court in this class of cases said, " The court not having gen- eral jurisdiction in equity, it is always necessary for the plaintiff to make it appear afBrmatively on the face of his bill that his case is within the jurisdiction of the court ; and the question whether it is or not, is properly raised by a general demurrer." " The powers of a court of equity ought not to be resorted to, unless a special case is made by the bill, showing that, for the reasons specifically set forth, the plaintiff has no adequate remedy at law." It has been suggested that, the court now having general equity jurisdiction,* a different in- terpretation of the restricted proviso respecting legal remedies might be required, and a larger class of cases brought within the equity jurisdiction of the court. But this is not the view apparently taken of the subject in a very recent case. ^ In a still later case,® in which there was a general demurrer on the same ground as in the former case, the court say, " Without determining absolutely that the plaintiffs have no remedy at law, we are of opinion that their remedy at law 1 Nelson v. Ferdinand, 111 Mass. 306. See Page v. Young, 106 Mass. 316. 2 O'Hare v. Downing, 130 Mass. 20. 8 May V. Parker, 12 Pick. 35; Woodman v. Saltonstall, 7 Cush. 183. * P. S. c. 151, § 4. « Allen V. Storer, 132 Mass. 372. " Dole V. Wooldredge, 135 Mass. 141. 102 EQUITY PLEADINGS AND PEACTICB. is not SO plain that we ought to deny them relief in equity." This would seem to be more in harmony with the general principles of equity jurisprudence ; for that can hardly be considered a plain remedy which can only be made certain at the end of an expensive and doubtful lawsuit. The objection that the plaintiff has a remedy at law must be taken before the defendant answers.^ Upon a general demurrer being sustained, the bill was out of court according to the early practice in the English chan- cery courts, and no subsequent proceedings were taken in the cause.2 But that is not the practice in this State. The fullest authority to allow amendments is given by the stat- utes, in all suits, both at law and in equity.^ The usual method is to allow a plaintiff reasonable time after a demur- rer has been sustained, either on the ground of defect in form or for want of equity, to move for leave to amend his bill for the purpose of supplying the defect, or alleging new or addi- tional grounds for the equitable relief which he seeks.* The Chancery Rule XI. provides that, after a demurrer has been overruled, no other demurrer shall be received. This is a less liberal rule than the former English practice, if it is con- strued as forbidding the filing of any demurrer after the first has been overruled. By that practice a demurrer of a less extensive nature than the first might in some cases be filed.^ Section III. — Disclaimer. This is sometimes treated as a distinct species of defence, but in reality it is an answer made by a person who denies 1 Tarbell v. Bowman, 103 Mass. 341 ; Creeley v. Bay State Brick Co., Id. 514; Russell v. Loring, 3 Allen, 121; Jones v. Keen, 115 Mass. 170. 2 Dan. Ch. Pr. (5th ed.) 623. s P. S. c. 167, §§ 41-44; St. 1883, c. 223, § 17. * Merchants' Bank v. Stevenson, 7 Allen, 491. See Crease v. Babcock, 10 Met. 529. ^ Glegg V. Legh, 4 Mad. 207 ; Thorpe v. Macauley, 5 Mad. 218. MODES OF DEFENCE. 103 that he has any right to the thing demanded by the plaintiff in his bill, and renounces all claim thereto.^ The disclaimer must show that the defendant is under no liability in respect to the subject matter of the bill, as well as that he has no interest therein.^ In a case where the defendants were made parties upon an alleged claim of interest, and upon a demand for costs arising from imputed misconduct, it was held the disclaimer might be sufficient as to the former, but was wholly inapplicable to the latter.^ In that case the defendants put in both a disclaimer and an answer, disclaiming all interest, and by their answer denying that they ever had or pretended to have any interest in the property in question. But the court, saying they had not answered any of the allegations by means of which the plaintiff proposed to prove the affirma- tive of his proposition, and so to support his bill against the defendants to compel them to pay the costs of suit, held that the defendants must make further answer. A defendant may disclaim to a part of the bill, and answer, demur, or plead to other parts. Upon a disclaimer, the bill will be dismissed with costs if it appears to have been vexa- tiously filed. But costs will not be decreed to the defendant if it appears that the plaintiff had probable cause for filing it. A disclaimer, though in substance distinct from an answer, yet generally adopts in most respects the formal parts of an answer.* Section IV. — Plea. A demxtreee, as has been shown, sets up matters in defence apparent upon the face of the bill ; a plea, on the contrary, relies, in general, upon matters not apparent from the bill 1 Dan. Ch. Pr. (5th ed.) 787. 2 Story Eq. PI. § 838 a; Ellsworth v. Curtis, 10 Paige, 105. ' Graham v. Coape, 9 Sim. 102. « Story Eq. PI. § 844. 104 EQUITY PLEADINGS AND PRACTICE. itself, and sets up some new fact, -which, if true, destroys the equity of the plaintiffs case,^ showing that he is not entitled to the relief he seeks. A plea stating matter not apparent upon the face of the bill, and which is relied upon as a bar to the plaintiff's claim, is called an affirmative plea. There are cases in which the plea rests upon the mere denial of the truth of some matter stated in the bill, upon which the plain- tiff's ease depends. This is called a negative plea. This sort of plea, as will be shown hereafter, must be supported by an answer. There is another species of plea, which is, strictly speaking, a plea neither affirming new matter nor negativing the plain- tiffs title as alleged in the bill, but one which asserts some fact stated in the bill, and which the bill seeks to impeach, and denies all the circumstances relied upon by the plaintiff to impeach the fact so set up in the bill.^ Matters arising after the filing of the bill, such as bankruptcy, or the deter- mination of the subject of controversy in another suit, may be pleaded. If a plea is the only defence, and it is found to be defective, the plaintiff should move to have it set aside for insufficiency.^ The plea must reduce the issue between the parties to a single point.* Chancellor Kent, adopting the reasoning of Lord Thurlow, said : " The reason why this court does not admit pleas, containing different and distinct points, is that you may put all the different circumstances together in your answer, which you cannot do at common law. There is, therefore, not the same reason in equity as at law for double pleading. The use of a plea here is to save time, expense, and vexation. If one point will put an end to the whole cause, it is important to the administration of justice ' Rhode Island v. Massachusetts, 14 Pet. 262; Rowe v. Teed, 15 Ves. 377, 378. 2 Dan. Ch. Pr. (5th ed.) 632. « Newton v. Thayer, 17 Pick. 129. * Ibid. MODES OP DEFENCE. 105 that it should be pleaded ; but if you are to state many- matters, the answer is the more commodious form in which to do it. If the defendant might be permitted to bring two points, on which the cause depends, to issue by his plea, he might bring three, or twenty, and so on, until all the matters in the bill are brought to issue by the plea." ^ It may be observed here that a plea is in fact a special answer, relying upon a single matter as a sufScient cause why the plaintiff's suit should be dismissed, delayed, or barred ; and thus saving the defendant " time, expense, and vexa- tion " in answering the plaintiff's whole bill. A plea is not rendered double by including several aver- ments, that are necessary to exclude conclusions arising from allegations made in the bill to anticipate and defeat the bar which may be set up in the plea. All that the rule re- quires is that the facts and circumstances relied upon in the plea shall constitute one ground of defence, upon which the whole equity of the bill may be disposed of.^ This rule does not preclude the defendant from putting in several pleas to different parts of the same bill. This qualification of the rule against duplicity of pleading rests upon the same principle as the rule which authorizes a defendant to demur to one part of a bill, plead to another, and answer to another. It has also been held, that a defendant may, upon leave of court first obtained, put in a double plea. As, for instance, in an ejectment suit the defendant was allowed to plead, first, that the person under whom the plaintiff claimed was not the heir, and, secondly, that the plaintiff's right was barred by the statute of limitations.^ 1 Saltus II. Tobias, 7 Johns. Ch. 215, 216; Rhode Island v. Massachu- setts, 14 Pet. 259. 2 Rowe V. Teed, 15 Ves. 379; Bogardus v. Trinity Church, 4 Paige, 178. 8 Young V. White, 17 Beav. 540; Bampton v. Birchall, 4 Beav. 558; Saltus V. Tobias, ubi supra. 106 EQUITY PLEADINGS AND PEACTICB. A plea, like a demurrer, good to the relief prayed, is good to the discovery sought in the same bill.^ The rule that a plea may be allowed in part only, must not be construed as meaning that a part of the plea may be held good and a part bad, but that the plea may be allowed as to a part of the bill to which it is applied, and bad as to another part of the bill ; for if any part of the defeme made by the plea is bad, the whole must be overruled.^ Rule IX. for Practice in Chancery requires that "in any case in which the bill charges fraud or combination, a plea to such part must be accompanied with an answer supporting the plea, and explicitly denying the fraud or combination, and the facts on which the charge is founded." This rule is less comprehensive, but it can hardly be understood as lim- iting the well-established rule in equity pleading, which is stated by Judge Story as follows : " If there is any charge in the bill, which is an equitable circumstance in favor of the plaintiffs case against the matter pleaded, such as fraud, or notice of title, that charge must be denied by way of answer, as well as by averment in the plea. In such a case the answer must be full and clear, or it will not be effectual to support the plea, for the court will intend the matters so charged against the pleader, unless they are fully and clearly denied in the answer." ^ That is, the plea must be sup- ported by an answer, not only when the bill charges fraud or combination, but also when it charges any equitable cir- cumstance in favor of the plaintiff's case against the matter pleaded. As, for example, a plea of no partnership to a bill for a partnership account, is defective in substance, if not sup- ported by an answer to allegations in the bill, which, if true, would prove the partnership. So a plea denying the posses- sion of deeds and papers must be accompained by an answer 1 Chapin v. Coleman, 11 Pick. 337. a Dan. Ch. Pr. (5th ed.) 636. » Story Eq. PI. § 684. MODES OF DEFENCE. 107 in certain cases. And if the bill, after stating a general fact, alleges as evidence of that fact the occurrence of circum- stances of which he seeks a discovery to establish that general fact, there must be an answer, not only negativing the general fact, but also all the circumstances which the bill alleges as evidence thereof.^ The reason given for this rule is, that, as a plea cannot be excepted to, and it is only necessary that an averment in a plea should generally deny the facts charged in the bill, the plaintiff might, if no answer were required in support of the plea, be deprived of his right to examine the defendant on oath as to all the matters of fact stated in the bill which are necessary to support his case.^ And this would be true in cases where fraud or combination is charged, as in other cases in which an answer is required in support of a plea. So that a plea to a bill charging fraud must, either with or without any specific rule of court on the subject, be accom- panied by an answer in support of the plea ; yet the rule only applies to cases where fraud and combination are charged. And the fact that the court has adopted such specific rule, in relation to the plea and supporting answer, to a bill charging fraud or combination, will not dispense with such answer in other cases, in which, according to general chancery practice, an answer is required in support of a plea. The nature and office of a plea, and the circumstances under which an answer is and is not required in support of it, are well explained by Mr. Justice Washington in the fol- lowing opinion. " A plea, being nothing more than a special answer to the bill, setting forth and relying upon some one fact, or a number of facts, tending to one point, sufficient to bar, delay, or dismiss the suit, it would be a vice in the plea to cover any other parts of the bill than such as concern the particular subject of the bar ; its office being to reduce the cause, or some part of it, to a single point, and thus to prevent 1 Hare on Disc. 37, 38, 39. '^ Wigram oa Disc. 21. 108 EQTTITY PliBADINGS AND PBACTICB, the expense and trouble of an examination at large. It is true, that all facts essential to render the plea a complete defence to the bill, so far as the plea extends, must be averred in it, or it wUl be no defence at all. If the plea be to the whole bill, it must cover the whole, that is, the whole subject to which the plea applies, and which it professes to cover, or it will be bad. ... If the plea be only to a part of the bill, the rest of the bill ought to be answered, or else the court would consider the parts not embraced in the plea, or answered, as true. But there is no instance, where the plea contains in itself a full defence to the bill, that an answer is necessary, unless it is rendered so in order to negative some equitable ground stated in the bill for avoiding the effect of the anticipated bar ; as when fraud, combination, facts in- tended to avoid the force of the statute of frauds, or to bring the plaintiff within some of the exceptions to the act of limi- tations, as the one or other of these defences may be expected. And in these and similar cases the defendant is bound, not only to deny these charges in his plea, but to support his plea by an answer, also denying them fully and clearly. If every plea required an answer to accompany it, there would be no case for the rule which declares that, if the plea be overruled, the defendant shall proceed to answer the biU." ^ The answer in support of the plea is no part of the defence. The defence is set up by the plea ; the answer is the evidence which the plaintiff has a right to require and use, to avoid the defence made by the plea. A pure plea is one which depends wholly on matters dehors the bill, such as a release, or settled account. Such a plea does not require an answer in support of it. Yet a defendant may in some cases support his plea by an answer touching matters not charged in the bill. Thus, in the case of a plea of purchase for valuable consideration, a defendant may deny notice in his answer, as well as in his plea ; for by » Sims V. Lyle, 4 Wash. C. C. R. 303, 304. MODES OF DEFENCE. 109 his answer he puts nothing in issue which he would cover by his plea from being put in issue.^ This is termed an answer in aid of the plea. It differs from an answer in sup- port of a plea, as it is not put in to annul the effect of any- equitable ground which may be set up in the bill to avoid the bar offered by the plea. Pleas in equity to the relief prayed by the bill have usually, according to Daniell, been ranged under three heads : 1. To the jurisdiction ; 2. To the person of the plaintiff or defend- ant ; and 3. In bar of the suit.^ Judge Story in his work on Equity Pleading divides these pleas into four kinds : 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.^ It will be observed that the several subjects suggested by these divisions or classifications of pleas have already been treated of under the head of demurrers. For if the facts showing a want of jurisdiction appear on the face of the bill, the proper manner of taking advantage of it is by demurrer ; and it is only when the want of jurisdiction does not appear from the bill itself, that it becomes the proper function of a plea to bring it before the court.* Apt illustrations of this subject may be found in cases in the United States courts. The Circuit Courts are invested with general equity jurisdiction in cases between citizens of different States; but with some exceptions, such as cases arising under patent and copyright laws, they have no ju- risdiction in cases between citizens of the same State. If, therefore, a suit is brought in a Circuit Court, and it is not alleged that the plaintiff and defendant are citizens of differ- ent Statas, the bill will be dismissed for want of jurisdiction, upon demurrer or motion. But if the bill contains an aver- ment that the plaintiff and defendant are citizens of different States, the jurisdiction attaches • and if the defendant means 1 Dan. Ch. Pr. (5th ed.) 648. » Story Eq. PI. § 705. 2 Ibid. 649. < Ibid. § 712. 110 EQUITY PLEADINGS AND PEACTICE. to control the alleged citizenship, he must do so by a plea to the jurisdiction.^ Pleas to the person are founded upon objections to the plaintiff's ability to sue, or the defendant's liability to be sued, respecting the subject matters set forth in the bill. Many of the pleas to the person of the plaintiff, such as outlawry, ex- communication. Popish recusant, convicts, attainder, alienage (except in case of alien enemies), and coverture (as married women may now by statute sue and be sued as if sole), are of no practical value. If infancy, lunacy, or bankruptcy is relied upon, and if it do not appear on the face of the biU, it may be taken advantage of by plea. So, if the plaintiff does not sustain the character in which he sue, the defendant may avail himself of the objection by plea ; as that the plaintiff is not administrator of the estate, or heir to the person under whom he claims as heir, or that he is not a partner or creditor, as he alleges he is. And the defendant may make his want of liability the ground of a plea in abatement of the plaintiff's suit ; as that, being bankrupt, he is sued respecting property which has become vested in his assignee. A plea to the bill is founded upon the objection, that, though the plaintiff may be entitled to the relief he asks against the defendant, he is not entitled to it in that suit,^ or upon the bill as framed. The- defendant may plead to the bill the pendency of another suit for the same matter, and between the same parties ; and this plea should be filed before the hearing.^ But the pendency of a suit in a United States court is not a bar to a suit for the same cause in a State court.* The plea should aver that the second suit is for the same matter as the first, and that the first suit is still pending. 1 Bingham v. Cabot, 3 Dallas, 382; Turner v. Enrille, 4 Dallas, 7, 8; Livingstone v. Story, 11 Pet. 351. 2 Story Eq. PI. § 735. 8 Hertell v. Van Buren, 3 Edw. Ch. 20; Saunders v. Frost, 5 Pick. 275, 276. * Mitchell V. Bunce, 2 Paige, 60S; Fulton v. Golden, 10 C. E. Green, 353. MODES OF DEFENCE. Ill This plea is made the subject of inquiry before proceeding further in the suit, and, if found to be true, the plea is allowed ; otherwise it will be overruled. The plea and bill are sometimes referred to a master for hearing and report, especially where the first suit is pending in another court. The foregoing pleas do not necessarily dispute the validity of the rights which are the subject of the plaintiff's suit, or that he may not in some form, at some time, and against some partjs maintain these rights. But a plea in bar, if al- lowed, destroys the plaintiff's suit, and disables him forever from recovering. Pleas in bar are divided into three classes : 1. Pleas founded on some bar created by statute ; 2. Pleas founded on matters of record ; 3. Pleas of matter in pais. The statutes which may be pleaded in bar are the statute of limitations, the statute of frauds, and any other statutes which create a bar. If it appears upon the face of the bill that the plaintiff's claim is within the statute bar, the defendant may demur. But if it does not so appear, and the defendant would show for example that the plaintiff's claim did not accrue within the limitation of the statute, or that the contract is by parol when by the statute it should be in writing, he must file his plea in bar. Equity makes the same application of the statute as a bar as is made in suits at law, and with the same exceptions.^ But a defence peculiar to courts of equity is founded upon the mere lapse of time, and the staleness of the claim, in cases where no statute of limitations directly governs the case.^ The language of the court in an English case is, " Courts of equity have at all times, upon general principles of their own, even where there was no analogous bar, refused relief to stale demands, when the party has slept upon his rights, and acquiesced for a long time ; and secondly, whenever a bar has been fixed by statute to the legal remedy in a court of law, the remedy in a court of equity has, in the 1 Story Eq. PI. § 503. » Story Eq. Jur. § 1520. 112 EQUITY PLEADINGS AND PRACXICB. analogous cases, been confined to the same period." ^ In "cases of trusts, as between trustee and cestui que trust, the statute cannot be pleaded in bar ; for it has been held in numerous cases that no length of time will bar a claim be- tween trustee and cestui que trust in a case of direct trust.^ But in cases of constructive trusts, as tnose resulting from partnerships, agencies, etc., the statute may be pleaded. Pleas in bar may be founded upon matters of record, either in the court wherein the plea is filed, or in some other court of equity, or in some court of common law. And as a plea of this kind proceeds upon the ground that the same matter was in issue in the former suit, and as every plea that is set iap as a bar must be ad idem, the plea should set forth so touch of the former bill and answer as will suffice to show that the same point was then in issue ; otherwise the plea will be considered defective, and disallowed.^ The judgment or decree on which the plea is based must have been a final judgment or decree upon the merits. And such final judg- ment which will bar a suit at law will also be a good bar to a suit in equity upon the same cause of action. As to the effect of a former judgment, and the manner of taking advantage of it by plea, or in the way of evidence, see notes 1 and 2 to the case cited in the margin.* Pleas in bar of matter in pais are : 1. Of a stated account ; 2. Of a release; 3. Of an award ; 4. Of an agreement; 5. Of a title, founded on adverse possession or other modes by which title to property may be acquired ; 6. Of a purchase for value without notice of the title claimed by the plaintiff. In all these cases, if the bill sets forth facts tending to impeach the account, the release, award, etc., for fraud, error, or other sufficient cause, the plea, as heretofore shown, must be ac- 1 Cholmondeley v. Clinton, 2 Jao. & Walk. 141. 2 Farnam v. Brooks, 9 Pick. 242; Willison v. Watkins, 3 Pet. 51, 52. 8 Dan. Ch. Pr. (5th ed.) 685, 686. * Standish v. Parker, 2 Pick. 22. MODES OP DEFENCE. 113 companied by an answer. The plea of a stated account must show that it was in writing. 'An account may be opened for fraud in the settlement after the lapse of more than twenty years, and the effect of a plea in bar thus avoided.^ A release, to support a plea in bar of an account, must be under seal ; otherwise it must be pleaded as a settled account. An award duly made will support a plea in bar of all matters concluded by it. An agreement must of course be final, and settle all matters involved in the equity suit, or it cannot be effectually pleaded in bar. A plea of purchase for a valuable consideration should show that the conveyance was made for valuable consideration, and that the defendant or person to whom it was made had no notice at the time of the conveyance to him of the plaintiff's title. This plea is founded on the principle of equity that, when the defendant has an equal claim to the subject matter of the controversy as the plaintiff has, the court will not in- terpose on either side. Upon this principle, it has been held that a purchase for a valuable consideration, though a good ground for a plea in bar, will not support a cross-bill, for the court will no sooner aid the plaintiff on a cross-bill in such a case, than it would the plaintiff in the original bill.^ Section V. — Answers. If a defendant neither demurs nor pleads, or if his de- murrer and plea have been overruled, he must answer the charges contained in the plaintiff's bill. And he must answer them fully. If he has demurred or pleaded to any part of the bill, and his plea or demurrer has been sustained, he will not be required to answer that part of the bill covered by his 1 Farnam v. Brooks, vhi supra. 2 Dan. Ch. Pr. (5th ed.) 698. For rules for framing pleas of purchase for valuable consideration, see Sugden on Vend, and Purch. 1087 et seq. 8 114 EQUITY PLEADINGS AND PEACTICB. demurrer or plea. Nor is the defendant required to answer to matters of law, or inferences of law, but only to matters of fact ; and only to such of those as are well pleaded, that is, to all facts stated and charged in the bill.^ A defendant is not bound to answer matters purely scan- dalous, or immaterial, impertinent, or irrelevant.^ Nor is he bound to answer to anything which may subject him to any penalty, forfeiture, or punishment.^ He is not bound to an- swer as to facts the knowledge of which he has acquired as counsel, attorney, or solicitor.* He is bound in his answer to discover the facts respecting the plaintiffs title, not his own title.° Subject to these excep- tions, it is a general rule that a defendant cannot by answer- ing excuse himself from making a full answer of discovery.^ According to the general rules of chancery practice as for- merly established, the answer controverted the facts stated in the bill, or some of them, and stated other facts to show the rights of the defendant to the subject of the suit. Sometimes ' it admitted the truth of the facts set forth in the bill, and then no further pleading was necessary, and the case thus stated was submitted to the judgment of the court. But if the answer did not admit the facts as stated in the bill, stated other facts which the plaintiff was not ready to admit, the truth of the answer or any part of it might be denied, and the sufficiency of the bill to ground the plaintiff's title to relief asserted by a replication, which would complete the pleadings, and the case would therefore be submitted to the court for its judgment.^ 1 Story Eq. PL § 846. 2 Agar V. The Regent's Canal Co., Cooper Eq. K. 212. » Adams v. Porter, 1 Gush. 173. * Story Eq. PI. §§ 599-602, 572-825. ^ This rule is not in force in Massachusetts. Adams v. Porter, 1 Cush. 174-176. * For a full exposition of the rule, see the opinion of Chancellor Wal- worth in the case of Bank of TJtica v. Messereau, 7 Paige, 518. » Story Eq. PI. §849; Mitford Eq. PI. by Jeremy, 15, 16. MODES OF DEFENCE. 115 It sometimes becomes a matter of considerable importance for a defendant to determine whether he will rest his defence upon a plea and answer in support of the plea, or upon an answer wholly.^ But this distinction between a defence by plea and answer, or by answer alone, has become of far less practical importance under the rules of chancery practice in this State. The thirteenth of these rules provides that " the defendant, instead of filing a formal plea or demurrer, may insist on any special matter in his answer, and have the same benefit therefrom as if he had pleaded the same or demurred "to the bill." Or, as is more fully set forth in a rule of the - United States Circuit Courts, " The rule, that if a defendant -submits to answer he shall answer fully to all the matters of _the bill, shall no longer apply in cases where he might by ^lea protect himself from such answer and discovery. And "the defendant shall be entitled in all cases by answer to insist upon all matters of defence (not being matters of abatement, or to the character of the parties, or matters of form) in bar I 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 1 not be compelled 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 mat- ters set forth in the bill to avoid or repel the bar or defence. Thus, for example, a bona fide purchaser for a valuable con- sideration without notice may set up that defence by way of answer instead of plea, and shall be entitled to the same protection, and shall not be compellable to make any further answer or discovery of his title than he would be in an an- swer in support of such plea." But notwithstanding these rules, there are still cases in which a defence by answer pos- sesses advantages over a defence by plea and answer. As, for example, if a bona fide purchaser for valuable consideration without notice can offer additional circumstances in his favor 1 Wigram on Discovery, 191-198. 116 EQUITY PLEADINGS AND PRACTICE. which he cannot set forth by way of plea, or answer in sup- port of a plea, — such as the expenditure of a considerable sum of money in improvements with the knowledge of the plaintiff, — it may be more prudent to set out the whole by way of answer, than to rely on the single defence by way of plea ; unless it is material to prevent the disclosure of any circumstances attending his title. For a defence which, if insisted on by a plea, would protect the defendant from a discovery, will not in general do so if offered by way of an- swer.^ It will be observed, that the two rixles cited provide that the defendant may insist only upon such special matter in his answer as he might make the subject of plea or de' murrer. The answer must confess, avoid, deny, or traverse aU the material parts of the bill ; and must state facts, not argu- ments. A general denial of the matters charged will not be sufficient. The replies to interrogatories contained in the biU must be specific and full. A defendant may by his answer set up several defences as the consequence of the same state of facts, or of facts which are consistent with each other ; but he cannot insist upon two defences which are inconsistent with each other, or are the consequence of inconsistent facts.^ It is a well-established rule of equity pleading, that, if a defendant consents to answer, he must answer fully. He cannot by denying the plaintiff's title protect himself from making the discovery sought by the bill. This subject is elaborately discussed, and the reasons for the rule considered, by Sir John Komilly, in a comparatively modern case, in which the conclusion reached was that the defendant must answer the plaintiffs interrogatories although he insisted that the discovery would be an act of oppression upon him, and 1 Story Eq. PI. § 851. = Dan. Ch. Pr. (5th ed.) 726, 727; Hopper v. Hopper, 11 Paige, 46; Story Eq.Pl. § 852. MODES OF DEFENCE. 117 that there was little probability that the court, at the hearing, would direct an account upon the facts stated.* But this rule has its exceptions. For there are cases in which a defendant may answer in part, and by his answer state reasons why he should not be compelled to answer further. He may in this way, as well as by demurrer, pro- tect himself from answering where the discovery sought would subject himself to a penalty or forfeiture, or because the matter sought is immaterial to the relief sought, or be- cause the inquiry relates to matters of professional confidence, or to the defendant's own title.^ And it has been held, in cases where the defendant was called to account as a partner, if he by his answer denied the partnership, he need not go further and set forth an account.^ If the plaintiff regards an answer as insufficient, he may take exceptions thereto, which exceptions should be in writing, stating the parts of the bill which the plaintiff alleges are not answered, and praying for a further and full answer.* These rules of chancery pleading and practice in relation to answer have been to some extent modified by our statutes and rules of court. The following is a summary of the statute provisions and the chancery rules promulgated by the Supreme Judicial Court in relation to answers, including the times and manner in which answers are to be made. The Public Statutes provide that answers to interrogato- ries, or to a prayer for discovery in a bill, petition, or decla- ration, shall be made without unnecessary delay, and questions arising thereon shall be determined by the rules applicable to bills of discovery.^ By a later statute, it is provided that the answer need not contain any saving of exceptions to the bill, 1 Swinbome v. Nelson, 15 Eng. Law & Eq. 572. « Dan. Ch. Pr. (5th ed.) 729. « See Methodist Church v. Jaques, 1 Johns. Ch. 65, and cases therein cited. * Story Eq. PI. § 864, 6 P. S. c. 151, § 7. 118 EQUITY PLEADINGS AND PRACTICE. or any prayer to be dismissed, or for costs. The answer may be signed by the party or his attorney, and shall not require any other signature. An answer to a bill shall not be sworn to or under seal, except in cases of bills for discovery only.^ Before the passage of this act of 1883, the statute require- ment was that the answer should be supported by oath, unless waived by the adverse party ; 2 and a rule of court provided that, when a bill was filed other than for discovery only, the plaintiff might waive the necessity of an answer being made on oath of the defendant ; and in such case the answer might be made without oath, and should have no other or greater force as evidence than the bill ; and no exception for insuf- ficiency could be taken to such answer.^ This rule is omit- ted in those recentlj'' adopted by the court, the statute now being, that the answer shall not be under oath except in cases as above stated. What will be the effect of this statute provision, that the answer shall not be under oath, upon the character or value of the answer as evidence? According to well-established practice in chancery, answers were always under oath, unless the plaintiff chose to dispense with it. And when thus veri- fied by the oath of the defendant, it became evidence for" him. But if the oath is waived, and the answer is made without the oath, the answer is not treated as evidence for the defendant.* But suppose an oath to an answer is waived, and yet it is responsive to facts charged in the bill, and which the defendant is required to answer, what is the effect of the answer when given, it not being under oath? Tliis point, says Judge Story, does not seem definitely settled. It may perhaps be true, that it is not entitled to all the privileges of an answer under oath. But it is by no means clear that it is not evidence in favor of the defendant as to 1 St. 1883, c. 223, § 10. « P. S. c. 151, § 10. s Rule 8 of 1870. * Dan. Ch. Pr. (5th ed.) 750 and notes. MODES OP DEFENCE. 119 aJl facts which are not fully disproved by the other evidence and cu'cumstances in the case ; and that it ought not to pre- vail where the other evidence is either defective, obscure, doubtful, or unsatisfactory.^ Thompson, J., in giving the opinion of the Supreme Court of the United States in the case cited below, and discussing the question as to the effect of an answer as evidence says : " Although the reason of the rule, which requires two wit- nesses, or circumstances to corroborate the testimony of one, to outweigh the answer, may be founded in great measure upon the consideration that the complainant makes the answer evidence by calling for it, yet this is in reference to the ordinary practice of the court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed, as matter of evidence, when unaccompanied by an oath ; and, indeed, we are in- clined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations." ^ And it seems to be the established practice in chancery, in- dependent of any specific rule of court, that no exceptions can be taken to an answer put in without the oath of the party.'^ But this practice of treating an answer unaccom- panied by an oath merely as pleading and not evidence, nor allowing anj' exceptions to such answer, grew up with that requiring a supporting oath to all answers, unless it was voluntarily waived by the adverse party. And so the ques- tions recur, since the statute absolutely forbids the answer being sworn to, can it be treated as evidence for the defend- ant, and can exceptions be taken to it for insufficiency? 1 Story Eq. PI. §875 a. 2 Union Bank of Georgetown v. Geary, 5 Pet. 112. See Bartlett v. Gale, 4 Paige, 504. 8 Dan. Ch. Pr. (5th ed.) 750. 120 EQUITY PLEADINGS AND PRACTICE. Among the rules recently adopted by the court, there are three relating to exceptions to answers for insufficiency, and these rules make no discrimination between answers which are required to be under oath and those where the oath is forbidden.^ "Where a suit is instituted against a corporation sole, he must appear and answer, and be proceeded against in the same manner, as if he were a private individual. Where a corporation aggregate is sued, it must appear by attorney, and answer under the common seal of the corporation.^ It is said the president of the corporation should sign the answer, and it is usual for the secretary or cashier to sign it also.^ A question may arise under the statute of 1883 as to whether the answer of a corporation to a bill of discovery must be under seal. The language of the statute is, " The answer to a bill shall not be sworn to, or under seal, except in cases of bills filed for discovery only." The seal would certainly not aid discovery. And therefore affixing the com- mon seal of the corporation to its answer to a bill of dis- covery would seem to be an idle ceremony. This whole subject of bills of discovery has become less important than it formerly was, by reason of the ample pro- visions of our statutes for obtaining discovery of facts and documents material for the prosecution or defence of suits in equity, as well as at law, by interrogatories to be filed in the clerk's office after the defendant has filed his answer to the plaintiff's bill.* The present chancery rules require the defendant to answer fully, directly, and specifically to every material allegation or statement in the bill; and answers may be written or printed.^ The answer is to be filed 1 Rules 16, 17, 18. 6 Rules 6, 7. 2 Dan. Ch. Pr. (5th ed.) 136. s 1 Barbour Ch. Pr. 156. * P. S. c. 151, § 8; c. 167, §§ 49-60. MODES OP DEFENCE. 121 within one month after the day of appearance, or the plain- tiff may enter an order to take his bill for confessed.^ Rule VII. is to be construed in connection with Rule IX., as requiring the defendant to make full, direct, and specific answers to only such parts of the plaintiff's bill as he does not plead or demur to ; for he cannot be required to demur and answer to the same part of the bill at the same time, nor to plead and answer, except to answer in support of his plea. An answer may be filed at any time before the bill is taken 'pro confesso, and afterwards by leave of court. And the answer may be to the whole, or only a part, of a bill. There must be an answer in support of a plea to a bill which charges fraud and combination.^ But, as has been stated on a previous page, the fact that the court has adopted a specific rule requiring an answer in support of a plea to this par- ticular form of bill does not dispense with the necessity of answer required by a general rule of chancery practice in support of pleas in many other cases.^ After the defendant's plea or demurrer has been overruled, he shall within one month answer the plaintiff's bill, or so much thereof as is covered by the plea or demurrer shall be taken pro confesso.* By another rule, the defendant is allowed to insist on any special matter in his answer, instead of filing a formal plea or demurrer.® That is, he may state his whole defence in his answer. So far as this last rule is adopted in practice, it will bring our practice into conformity with that of the Chancery Division of the English court. In that court, instead of an answer the defendant is required to make a statement of defence, and that statement must be as brief as the nature of the case will admit, and contain a 1 Eule 8. " Rule 11. 2 Rule 9. 6 Rule 13. 8 Dan. Ch. Pr. (5th ed.) 639, 640; Story Eq. PI. §§ 670-676. 122 EQUITY PLEADINGS AND PKACTICE. statement of the material facts on which the defendant relies, but not the evidence by which they are to be proved, and be divided into paragraphs, numbered consecutively ; each para- graph containing as nearly as possible a distinct allegation ; dates, sums, and numbers being expressed in figures, and not in words. Any counter claim made or relief claimed by the defendant should be specifically stated in the statement of defence, and when the defendant relies upon several distinct grounds of defence, founded upon separate and distinct facts, they must be stated, as far as may be, separately and dis- tinctly. All facts intended to be relied on, and not appear-, ing in the statement of claim, must be alleged, and all such grounds of defence must be raised as, if not raised on the pleadings, would be likely to take the opposite party by sur- prise, or would raise new issues of fact not arising out of the pleadings, as, for instance, fraud, or that any claim has been barred by the statute of limitations, or has been released.^ The statement of defence above described, as will be ob- served, is very much more comprehensive than any answer can be under our rule, permitting a defendant to incorporate in his answer only such special matters as might be the subject of plea or demurrer j for under the present English practice the answer may contain a counter claim and claim for relief which, under our practice, must be sought by cross-bill. When the defendant in his statement of defence denies the allegations of fact in the statement of claim, he must not do so evasively ; thus, if it be alleged that he received a certain sum of money, he must in his denial deny that he received that sum, or any part of it. It is not sufficient for the defendant to state in his defence that he puts the plaintiff to the proof of his allegations in whole or in part. 1 Dan. Ch. Pr, (6th ed.) 443, 444. MODES OP DEFENCE. 123 The defendant to a cross-bill is not compelled to answer thereto before the defendant in the original suit has an- swered.i An answer may be excepted to as insufficient, and, if adjudged to be so, a new answer shall be filed within fifteen days.^ If, after the defendant has filed his answer, the plaintiff amends his bill, the defendant may be ordered to answer the amendments. And, as the rule declares, he shall furnish a sufficient answer to the original bill at the same time, if the plaintiff has excepted to it.^ But must not the first answer be adjudged insufficient, as well as ex- cepted to, before the defendant can be called on to file another? 1 Rule 14. • 2 Rule 17. s Rule 21.. CHAPTER VIII. REPLICATION. Aptee the defendant has made his answer, the plaintiff must, within the time prescribed by the rules, reply, file exceptions to the answer, or set the case down for hearing upon the bill and answer. The time within which this must be done, under our rules, is one month after the answer is required to be filed, or if that be filed before it is required, then within one month after the plaintiff has written notice of such filing. And if the plaintiff fails to reply, or file ex- ceptions, or set the case down for hearing, as required by the rule, the bUl may be dismissed, with costs.^ A replication is the plaintiff's answer to the defendant's plea or answer. And it is said to be the general, if not universal, practice in America, that the pleadings terminate with the replication, and the cause is then at issue, and the defendant is not required, as under the former English practice, to file a rejoinder.2 Where the defendant has pleaded to the bill, al- though his plea is not accompanied by an answer, the plaintiff must reply. But it has been held. that a plea may be set down to obtain judgment of its sufficiency without a replication.^ But if the plaintiff, before obtaining such judgment, replies to the plea, he thereby admits it to be valid if true, and can- not afterwards object to it for invalidity or irregularity. If, says Livingston, J., a plea, in the apprehension of the com- plainant, be good in matter, but not true in fact, he may reply 1 Ch. Rule 16. 2 Story Eq. PI. § 879 and note 5. ' Moreton v. Harrison, 1 Bland (Md.) 491. REPLICATION. 125 to it, and proceed to examine witnesses in the same way as in case of a replication to an answer ; but such a proceed- ing is always an admission of the sufficiency of the plea itself, as much so as if it had been set down for argument and allowed.^ In a suit where a special replication had been filed denying part of a plea in bar, and reasserting the substance of the bill. Chief Justice Shaw, giving the opinion of the court, said : " As a point of practice, it is considered as settled that such special replication is inadmissible and unnecessary. If a plea is put in, it must be of some matter of fact, which, if true, is an entire bar to the suit. If the plaintiff insists the plea is insufficient for this purpose, whether true or not, the course is for the plaintiff to move to set it aside for insufficiency, which is in the nature of a demurrer." ^ The replication puts nothing in issue except what is distinctly averred in the plea.^ The plaintiff may be allowed to withdraw his replication for the purpose of amending his bill, upon showing satisfactory reasons therefor.* The plaintiff has also been allowed in some cases to withdraw his replication, and set the cause down to be heard upon bill and answer. ° In the case last cited Chancellor Kent said the court rarely grants leave to withdraw the rephcation, unless there be some special cause shown. The reasons for such an application should be clearly stated, and be of sufficient import, and the laches of the plaintiff fully accounted for. To withdraw the replication for the purpose of amending the bill, the plaintiff must show the materiality of the amendments, and why the 1 Hughes V. Blake, 6 Wheat. 472, 473. 2 Newton u. Thayer, 17 Pick. 132. See BeUows v. Stone, 8 N. H. 280. « Fish V. Miller, 5 Paige, 26. * Bouafield v. Mould, 1 DeG. & S. 347 ; Champneys v. Buchan, 3 Drew. 5. 5 Rogers v. Goore, 17 Yes. 130; Brown v. Ricketts, 2 Johns. Ch. 425. 126 EQUITY PLEADINGS AND PKACTIOE. matter to be introduced by the amendment was not stated before.^ After a case has been set down for hearing upon bill and answer, the court may allow a replication to be filed, and thereupon send the case to a master.^ The general replica- tion puts in issue all the facts alleged in the answer.^ The fifteenth rule of the court provides that " the form of the general replication shall be that the plaintiff joins issue on the answer. No special replication shall be filed but by leave of court." 1 2 Johns. Ch. 428. 2 Doody V. Pierce, 9 Allen, 143. 8 O'Hare V. Downing, 130 Mass. 20. See Humes v. Scruggs, 94 U. S. 22. CHAPTER IX. AMENDMENTS. Section I. — Of Bills. This branch of equity pleading and practice may be con- sidered under a threefold division: 1. Amendments as to parties to the suit ; 2. Amendments which affect the sub stance of the bUl ; and 3. The stage of the cause at which amendments are allowable. In a study of the existing prac- tice in this State, the same difficulties are encountered in this as in every other branch of the general subject ; arising from the fact that our practice is regulated in part by stat- ute, in part by the established rules of court, and in part by the general principles of chancery practice, where neither the statute nor the rules have made any specific provision. For it must not be forgotten that, although the statutes have conferred very large powers upon the courts to allow amend- ments, they have not abolished the distinctions between amendments, properly so called, and supplemental bills and bills of revivor, as means of perfecting the necessary pleadings in equity causes. As, for instance, the statute which provides that "in suits in equity, if a party dies and the cause by the rules of equity may be revived against, or in favor of, an administrator, executor, heir, devisee, or other person, such representative may, in lieu of proceedings to revive the same, appear or be summoned to prosecute or defend in like man- ner as in suits at law," ^ makes no provision for cases which may be abated for causes other than the death of a party, or for cases where, from a change of interest after the institution 1 P. S. 0. 1G6, § 19. 128 EQTJITY PLEADINGS AND PEACTICB. of the suit, it may be necessary to bring in new parties, or make other changes in the pleadings. And the same thing may be said in relation to the twenty-second rule for regu- lating chancery practice in those courts; for although the rule declares that " the court may in its discretion allow the parties to amend their pleadings, and order or permit plead- ings to be filed, or any proceeding to be had, at other times than are provided in these rules," it is manifest from other rules that the term amend is used in a limited or technical sense. And although there has yet been no authoritative dec- laration on the subject, yet it would seem that the true con-- struction of the later statute,^ giving the courts even ampler authority for allowing amendments, must still recognize the well-established distinctions between amendments and sub- sidiary bills as the necessary means of completing defective pleadings in equity causes. In this connection, and before proceeding to a more general consideration of the subject, it may be well to state the sub- stance of the other rules of the court relating to amendments. The plaintiff may, of course, and without payment of costs, amend his bill at any time before answer, plea, or demurrer filed. No amendment, however, shall be allowed as of course to a bill sworn to by the party .^ After demurrer filed for want of parties, or other defect not going to the whole equity of the bill, the plaintiff may amend before the demurrer is set down for argument, or within fourteen days after the filing and notice thereof to him.^ After answer filed, the plaintiff may amend his bill, if necessary to meet the case made by the answer, he furnishing to the defendant a certified copy of the amendment.* 1 St. 1883, c. 223, § 17. See also Rev. Sts. o. 100, § 22, now P. S. c. 167, § 42 ; and Dana v. Valentine, 5 Met. 13 ; Crease v. Babcook, 10 Met. 525. 2 Ch. Rule 19. 8 Ch. Rule 20. * Ch. Rule 21. See Rules 28, 29, and 30 of the U. S. C. C. on " Amendments of Bills." These go more into details and are more specific than ours. AMENDMENTS. 129 Some portions of these rules only affirm what the practice in chancery has been, and -would be now without them ; other portions modify that practice, and, taken in connection with our statutes, have so far changed the practice as to render the decisions of courts in other jurisdictions, uncontrolled by similar rules and statutes, of much less value as precedents. StUl, there are general principles governing the practice in all courts of equity, which will be briefly noticed. One of these principles has been stated as follows : " If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bUl must contain ground for relief. There must be equity in the case, when fully stated, and correctly applied to the proper parties to warrant a decree." And so where a bill on demurrer was dismissed for want of equity on the merits of the case as stated, leave to amend the bill was refused.^ And our own court has said, that, where the object of the proposed amendment is to strengthen, elucidate, and explain the case made by the original bill, to traverse and draw in is- sue every material fact which may directly or indirectly affect such case, amendments will be freely allowed ; but where the effect of the amendment is to abandon the case originally made, and to make a new and distinct one, the rule is other- wise.2 It is a general rule with courts of equity, when they possess discretionary authority over the matter, to allow amendments with great liberality until the proofs are closed.^ Amendments introducing facts known to the plaintiff when he filed his bill, or which might have been known by proper 1 Lyon ti. Tallmadge, 1 Johns. Ch. 188 ; Lloyd v. Brewster, 4 Paige, 537 ; Bosley v. PhUlips, 3 Tenn. Ch. 649. 2 Pratt V. Bacon, 10 Pick. 127. See 14 N. H. 175; Piatt v. Squire, 5 Cush. 557; Homer v. Homer, 107 Mass. 87. « Smith V. Babcock, 3 Sumner, 583; Cunningham v. Pell, 6 Paige, 655. 9 130 EQUITY PLEADINGS AND PEACTICB. diligence, will not ordinarily be allowed. The plaintiff in such case must, before his amendment wiU be allowed, give satisfactory reason for his negligence.^ We have seen that, by the rules of our court regulating the allowance of amendments, no amendment will be allowed as of course to a bill which has been sworn to by the party. The general doctrine on that subject seems to be, that when the plaintiff asks leave to amend a bill to which he has made oath, he must state distinctly the proposed amendments, make oath to the truth of them, and give a valid reason for not having incorporated in the original bill the facts embraced in his amendments.^ The whole purpose of allowing amendments to pleadings in equity suits is to enable the plaintiff to state fully and in an appropriate manner the grounds upon which he asks relief, and the defendant to set out fully the grounds of his defence, and to bring the necessary parties plaintiff and defendant before the court. This being the object, there is, as has been stated, great liberality in allowing amendments until the evidence is closed ; and this liberality would seem to be greater in allow- ing amendments as to parties, than as to other matters.^ An important consideration as to amendments relates to the time when, or the stage of the cause at which, they can or will be allowed. It has been often held that mere formal amend- ments may be allowed even at the final hearing of the cause.* After the proofs in a cause have been closed, amendments unless merely formal will not be allowed, except upon special 1 Prescott V. Hubbell, 1 Hill Ch. 217; Ko. Am. Coal Co. ». Dyett, 2 Edw. Ch. 115. '^ Parker v. Grant, 1 Johns. Ch. 434 ; Kodgers v. Kodgers, 1 Paige, 424. s Story Eq. PI. § 887; Forbes ». Stevens, 10 Jur. n. 8. 861; Park ». Ballentine, 6 Blackf. 223; Hewett v. Adams, 50 Maine, 271; Morgan ». New York & Albany R. R. Co., 10 Paige, 290; Winthropv. Farrar, 11 Allen, 402; McLellan v. Osborne, 51 Maine, 118. * Coddington v. Mott, 1 McCarter, 430 ; Mavor v. Dry, 2 Simons & Stuart, 113; Whitmarsh v. Campbell, 2 Paige, 67; Story Eq. PL § 905; Ontario Bank v. Sohermerhorn, 10 Paige, 109, AMENDMENTS. 131 cause shown. Upon this point Chancellor Kent said, in reply to an application to amend after publication passed, " It is a settled rule of practice, that a bill defective in its charges cannot be amended after publication and cause set down, and especially after hearing, by adding new charges."^ A mere clerical error in the pleadings may be amended even after final decree.^ Where a bill for specific performance was referred to a master, who reported that the alleged contract was not made, the court refused to allow an amendment so that the plaintiff might obtain relief on the ground of fraud on the part of the defendant.^ As the plaintiff will not ordinarily be allowed to introduce into the suit by way' of amendment anything inconsistent with the original bill, the amendments and bill form but one bill, and refer to the time when that was filed, so that the defendant cannot be called on to answer anything which has occurred since that time.* There are exceptions to this rule. An executor who files a bill before probate, may, after obtain- ing probate, introduce that fact by amendment. A bill filed against one who is an infant at the time, but who attains his majority pending the suit, may be amended by stating that fact.^ In a recent case, in which the only prayer of the bill was for an injunction, the court allowed an amendment by adding a prayer for an assessment of damages, after the case had been heard by a master and he had made his report.^ 1 Shephard v. Merrill, 3 Johns. Ch. 423; Tilton v. Tilton, 9 N. H. 394; Ross V. Carpenter, 6 McLean, 382; Smith v. Baldwin, 4 Harris & John- son, 331; Story Eq. PI. § 332. 2 Donnelly v. Ewart, 3 Richardson Eq. 18. Opening and filing de- positions in the clerk's office is in this State equivalent to publication in England. Charles River Bridge v. Warren Bridge, 7 Pick. 344. ' Sanborn v. Sanborn, 7 Gray, 146. * Walsh V. Smyth, 3 Bland, 9, 20; Hurd v. Everett, 1 Paige, 124. * Kipp V. Hanna, 2 Bland, 26; Humphreys v. Humphreys, 3 P. Wms. 348. ' Mears v. Dole, 135 Mass. 513, 514. 132 EQUITY PLEADINGS AKD PKACTICB. Whether the fact that the case had been treated by the parties and master upon the hearing as if the bill contained a prayer for damages, had any influence with the court in allowing the amendment does not appear. After decree for specific performance, would the court allow an amendment by adding to the bill a prayer for damages ? If not in that case, would the court allow an amendment of the character named, after the master has reported in favor of the title, and his report has been confirmed, but no final decree entered? Section II. — Amendment of Answers. The same general principles regulate the practice in rela- tion to the amendment of answers, as in the amendment of bills. It is said for instance that courts will not readily allow amendments to answers that have been made under oath ; and the same rule, as we have seen, prevails in allowing amend- ments to bills which have been sworn to by the plaintiff. " The cases," says Chancellor Kent, " both ancient and mod- ern, in which the answer has been permitted to be amended, are generally those of mistake or surprise ; and sometimes it has been allowed where new matter had been discovered since the original answer was put in. A new fact has, likewise, been permitted to be added to the answer, under special cir- cumstances ; and in some cases, a dangerous admission of assets in the answer has been allowed to be restricted. There is no precise and absolute rule on this subject; the question is always applied to the discretion of the court in the particular instance." ^ It will be found that a very large proportion of all the cases in which applications for leave to amend answers have 1 Bowen v. Cross, 4 Johns. Ch. 377. See also Smith v. Babcock, 3 Sumner, 583; Tilllnghast v. Champlin, 4 R. I. 128; Howe v. Russell, 36 Maine, 115 ; Dearth v. Hide & Leather National Bank, 100 Mass. 543 ; Dan. Ch. Pr. (5th ed.) 779; Stoiy Eq. PL § 883. AMENDMENTS. 133 been considered are cases in which the answers were put in under oath. As our statute now provides that an answer to a bill shall not be sworn to except in cases of bills' for discovery, it remains to be determined what change that fact will make in the practice of allowing defendants to amend their answers. We have no rule of court upon this subject corresponding to that of the United States courts, which provides that, " after an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date or reference to a document, or other small matter, and be re-sworn to at any time before a replication is put in, or the cause is set down for a bearing upon bill and answer " ; ^ and after replication, or setting down for a hearing, the answer may be amended by special leave of the court on motion made for that purpose. One of the rules established by our Supreme Court does provide that, if the answer filed is excepted to as insufficient, and notice thereof is given to the defendant, he may within fifteen days put in a sufficient answer, which shall be received without costs. But if the defendant insists upon the suffi- ciency of his answer, and a hearing takes place upon the exceptions, and the answer is adjudged insufficient, a new answer shall be filed within fifteen days. This rule, how- ever, looks to the interests of the plaintiff rather than to those of the defendant; for unless the plaintiff chooses to except to the answer, the rule contains no provision allowing the defendant to amend his answer if he desires so to do. What the rules fail to provide for is perhaps supplied by our statutes.^ For under these statutes the defendant has the same right of amendment of his pleadings which the plaintiff has. It appears from the cases examined, that the practice is quite general to allow a defendant to correct mistakes and 1 Ch. Rule 60, U. S. C. C. » P. S. c. 167, § 42 ; Dana v. Valentine, 5 Met. 13 ; St. 1883, c. 223, § 17. 134 EQUITY PLEADINGS AND PEACTICB. supply defects in his original answer by filing what is called a supplemental answer.^ Upon filing the supplemental answer the defendant is not allowed to take his original answer from the files, but must leave it there. Amendments introducing an entirely new defence have been disallowed,^ and also where the object of the amend- ment was to set up the statute of frauds,^ or the statute of limitations as a defence,* or in case of a corporation to set up as a defence that the act of the corporation in making the agreement sued on was ultra vires.^ And courts have refused to allow defendants to file supplemental answers contradict- ing the answers first made.® According to the present practice in England, the defend- ant, in cases of mistake in the statements or admissions in his answer or in analogous cases, will not be permitted to amend the answer, but must apply for leave to file a supple- mental answer.' It will be found upon an examination of the decisions upon the subject, that no definite limit of time has been fixed with- in which applications for leave to amend answers must be asked. But if the defendant is manifestly guilty of laches, his application wiU be refused.^ Section III. — Amendment of Pleas. Pleas may, like answers, be amended, or the defendant may, upon leave granted, plead de novo. Whether he shall 1 Murdock's case, 2 Bland, 461; Bell v. Dunmore, 7 Beav. 283 j Nail V. Punter, 4 Sim. 474; Smith v. Smith, 4 Paige, 432; 38 L. J. Ch. 711. 2 Campion v. Kille, 1 McCarter, 229. s Cook V. Bee, 2 Tenn. Ch. 844. * Percival v. Caney, 14 Jur. 473. 6 Third Av. Sav. Bank v. Dimock, 9 C. E. Green, 26. ° Greenwood v. Atkinson, 4 Sim. 61. ^ Dan. Ch. Pr. (5th ed.) 783, and cases cited in notes. 8 Wilson V. Wintermate, 12 C. E. Green, 63; Ruggles v. Eddy, 11 Blatohf. 524; Story Eq. PI. § 905 a. AMENDMENTS. 135 be permitted to do one or the other, or neither, is within the discretion of the court, and that discretion is to be exercised as in cases of applications to amend bills or answers. It is said, " There is no more firmly settled rule than that a defendant, having put in one plea, and that plea having been overruled, cannot put in another plea without special leave of court." ^ Our own rule of court is, if a plea be over- ruled, no other plea shall be received, and the defendant shall proceed to answer the bUl.^ 1 McKewan v. Sanderson, L. K. 16 Eq. 316. 2 Ch. Rule 11. CHAPTER X. EXCEPTIONS TO ANSWERS. The plaintiff may except to the defendant's answer on the ground that it is scandalous, impertinent, or insufficient. Scandal consists in the allegation of anything, either in a bill or answer, or any other pleading, which it is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause ; and any unnecessary allegation bearing cruelly upon the moral character of an individual is scandalous.^ But it does not follow that the answer is to be held as scandalous because it reflects with severity upon the bharacter or conduct of the plaintiff; for if the matter charged is material, or relevant to the issue, it will not be treated as scandalous.^ Nothing pertinent to the cause is ever deemed scandalous ; and the degree of relevancy is not deemed material.* The answer may contain matter which, without being scandalous, may yet be impertinent. Matters in a bill, answer, or other pleading, are deemed impertinent which are not properly before the court for decision at any stage of the cause.* Impertinence, says Chancellor Kent, consists in setting forth what is not necessary, as where the pleadings are 1 Dan. Ch. Pr. (5th ed.) 353. 2 Desplaces v. Goris, 1 Edw. Ch. 350; Jolly v. Carter, 2 EdW. Ch. 209; Van Eensselaer v. Brice, 4 Paige, 177. 8 St. John V. St. John, 11 Ves. 526; Ex parte Simpson, 15 Vea. 477; Story Eq. PI. § 269. * Wood V. Mann, 1 Sumner, 506, 578 ; Mclntyre v. Union College, 6 Paige, 289; Spaulding v. Farwell, 62 Maine, 319. EXCEPTIONS TO ans"w:ebs. 137 stuffed with long recitals, or with long digressions of matters of fact which are totally immaterial. An answer or. bill ought not, ordinarily, to set forth deeds in hcec verba; and if the pleader sets forth so much as is material to the point in question, it is sufficient.^ The same rules apply to answers as to bills, in relation to scandal and impertinence.^ It is necessary to bear this in mind, for some of the foregoing citations were cases in which the scandalous or impertinent character of bills, and not answers, was the subject of consideration. If the defendant omits to answer fully every material part of the bill or interrogatories, the plaintiff may except to his answer as insufficient. The order and manner in which exceptions on these several grounds may be taken and heard require some further consideration. It has been held that separate exceptions to the same answer, one for scandal and the other for impertinence, will not be allowed. The reason given for this is, that nothing in the pleading can be scandalous which is not also imperti- nent.^ The exceptions must describe the passages in the answer which are complained of as impertinent.* An excep- tion on the ground of impertinence cannot be sustained in part ; it must be sustained as a whole or not at all.^ It has been heretofore shown that a defendant may demur to part of a bill, plead to another part, and answer the residue. When he adopts this method of defence, and the plaintiff wishes to except to the answer, he must not do that until the validity of the plea or demurrer has been argued, unless he is ready to admit their validity.® In some jurisdictions 1 Hood V. Inman, 4 Johns. Ch. 437; Johnson v. Tucker, 2 Tenn. Ch. 244; Woods v. Morrell, 1 Johns. Ch. 105. 2 Dan. Ch. Pr. (5th ed.) 759. ' Mclntyre v. Union College, 6 Paige, 240. * Franklin v. Keeler, 4 Paige, 382. 5 Tench v. Cheese, 1 Beav. 571. " ij^ondon Assurance v. East India Co., 3 P. Wms. 326; Boyd v. Mills, 13 Ves. 85; Story Eq. PI. § 891. 138 EQUITY PLEADINGS AND PEACTICB. it has been held that an exception for impertinence cannot be heard after an exception for insufficiency in the same an- swer has been heard. When a plaintiff excepts to an answer for insufficiency, he should state the parts of the bill not answered, and ask that the defendant may be required to put in a full answer.i If an answer is evasive, it may be excepted to.^ Exceptions will not lie to the answer of an infant for insufficiency.^ Neither can the answer of his guardian be excepted to. The reason given for this is, that in reality it is not the answer of the infant, but of the guardian, who is the only person sworn, and such answer cannot be read against the infant.* Exceptions for insufficiency in the answer may be allowed in part and overruled as to part,^ differing in this respect from an exception for impertinence. After excep- tions have been filed, as a general rule no new exceptions can be added. But the court may, on motion and for good cause shown, allow additional exceptions to be filed.^ When there are several defendants and they answer separately, excep- tions, if taken, must be to each separate answer.^ In cases where the plaintiff waives his right to insist upon answer of the defendant under oath, he cannot except to such answer; the reason given for this rule is, that such answer is not evidence.^ In some States this rule is changed by statute.® By one of the rules adopted by the Supreme Judicial Court of this State in 1870, it was declared that 1 Brooks V. Byam, 1 Story, 296. = Blaisdell v. Stephens, 16 Vt. 179. » Copeland v. Wheeler, 4 Bro. C. C. 256; Bulkley v. Van Wyck, 5 Paige, 536; Lucas v. Lucas, 13 Ves. 274. * James v. James, 4 Paige, 115 ; Stewart v. Duvall, 7 Gill & J. 18(5. ^ Hoffman v. Postill, L. R. 4 Ch. App. 673; Van Kensselaer v. Brice, 4 Paige, 174. 8 Partridge v. Haycraft, 11 Ves. 575; Bolder v. Bank of England, 10 Ves. 284. "! Dan. Ch. Pr. (5th ed.) 765. 8 McCormick v. Chamberlain, 11 Paige, 473 ; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599. » Dick. Ch. Pr. 98. EXCEPTIONS TO ANSWEES. 139 no exception should be taken to the answer when the oath of the defendant had been waived by the plaintiff.^ By a late act of our legislature, often referred to in these pages, it is provided that answers to bills in equity shall not be sworn to except in cases of bills for discovery only.^ The rules adopted by the court since that act was passed provide only that, " if the plaintiff shall except to an answer as insuffi- cient, he shall file his exceptions and give the defendant no- tice," etc. ; making no distinction between answers, whether put in with or without the oath of the defendant. What, then, is to be the practice in our courts hereafter? Will answers in any except cases of bills for discovery be sub- ject to exceptions for insufficiency? Under a general rule of chancery practice, as has been shown, exceptions can only be taken to answers made under oath. With no special rule of the court on the subject, must not this general rule be adopted as the rule of practice under this recent legislation ? And must not all answers, except answers to bills of dis- covery, be treated merely as a part of the pleadings in the case? Certainly it would seem that the answer thus made without the oath of the party should have no other or greater force as evidence than the bill. But suppose the bill prays for a preliminary injunction, and is supported by the oath of the complainant, as required by the uniform prac- tice in such cases, and the answer according to the statute must be made without the oath of the defendant. Is the answer in that case to be treated as of equal probative force with the bill? But without pursuing further these and other inquiries suggested by recent legislation and the new rules, it may be better to examine these rules more fully, so far as they relate to exceptions to answers. By the sixteenth rule the plain- tiff must file his exceptions within one month after the answer is required to be filed; or if the answer be filed 1 Ch. Eule 8. 2 St. 1883, c. 223, § 10; Ch. Kule 17. 140 EQUITY PLEADINGS AND PEACTICB. earlier, then the exceptions are to be filed within one month after written notice of such filing. The time for filing the answer is within one month after the return day of the process by which the defendant is summoned to appear and answer.! After the exceptions have been filed, and notice thereof given to the defendant, he may, if he so elects to do, file within fifteen days a sufficient answer ; but if he insists on the sufficiency of his answer already filed, he shall, within fifteen days from the filing of the exceptions, file a statement to that effect, and give notice thereof to the plaintiff, and the exceptions shall then be referred to a master. If either party is dissatisfied with the master's decision, he may, within seven days after the filing of the master's report, set the exceptions down for argument. If the answer shall be adjudged insuffi- cient, a new answer shall be filed within fifteen days.^ This second answer in like manner is subject to excep- tions.2 In regard to exceptions to answers to interroga- tories, it is held that if they are substantially, though not technically, answered, that should be sufficient.* All exceptions should be in writing, and signed by counsel.^ 1 Ch. Rules 4 and 8. 2 ch. Rule 17. 8 Ch. Rule 18. See Ch. Rules, 38 N. H. 609; and Eq. Rules 63, 64, U. S. C. C. * Read v. Woodroofe, 24 Beav. 421. See Stafford v. Brown, 4 Paige, 88 ; Brooks v. Byam, 1 Story, 296. « Dan. Ch. Pr. (5th ed.) 768. CHAPTER XI. PROCEEDINGS BEFORE MASTERS, AND THEIR REPORT. Sbctioit I. — Proceedings. Under the former English practice,^ when a cause was referred to a master, the parties were brought before him by means of what was called a warrant issued by the master, appointing a time and place for hearing the parties. As a general rule, all parties interested in the subject matter referred to a master were and are entitled to attend the hearing. The master was authorized, by the decree direct- ing the reference, when he was to make inquiries or take accounts, to require the parties to produce before him upon oath all deeds, papers, and writings in their custody, or power relating thereto. It was by the decree of reference left to the discretion of the master to determine what books, papers, and writings should be produced. Causes are re- ferred to a master upon decrees or decretal orders, either : 1. To make inquiries; 2. To take accounts and make com- putations ; or, 3. To perform some special ministerial acts directed by the court. Under rules regulating chancery prac- tice in the United States Circuit Courts and in the courts of some of the States, masters possess powers similar to those aboTe enumerated.^ If a party duly summoned by the master to produce papers, etc., fails to do so without good cause shown, the party re- quiring the production may apply to the court for the enforce- 1 The office of master has been abolished in England. '^ U. S. Equity Rule 77; Kule 109, New York; Uussell v. McLellan, 3 Wood. & M. 157. 142 EQUITY PLEADINGS AND PEACTICE. ment of the order, and, if necessary, the delinquent may be brought to the bar of the court to answer for his contempt ; which can only be cleared in the same manner as other con- tempt.i If a party ordered to produce papers, etc., before the master wants further time to produce them, he may apply to the court for an extension of the time, if the master refuses to grant the extension .^ If a party duly required to produce documents, papers, etc., fails to comply with the order, he may be treated as in contempt, and proceeded against accordingly. By one of the rules of chancery of the Supreme Court of Massachusetts relating to practice before masters, it is pro- vided that, " when any matter shall be referred to a master, he shall, upon the application of either party, assign a time and place for a hearing, which shall not be less than ten days thereafter ; and the party obtaining the reference shall serve the adverse party, at least seven days before the time appointed for the hearing, with a summons, requiring his attendance at such time and place, and make proof thereof to the master ; and thereupon, if the party sum- moned shall not appear to show cause to the contrary, the master may proceed ex parte; and if the party obtaining the reference shall not appear at the time and place, or show cause why he does not, the master may either proceed ex parte, or the party obtaining the reference shall lose all benefit of the same, at the election of the adverse party." ^ There is some ambiguity in this rule, growing out of the repeated use of the word " reference." The corresponding rule in the United States courts is that, " whenever any reference of any matter is made to a master to examine and report thereon, the party at whose instance or for whose benefit the reference is made, shall cause the same to be presented to the master for a hearing, on or be- 1 Dan. Ch. Pr. (5th ed.) 1179. » Rule 30. = 2 Smith Ch. Pr. (3d ed.) 168." PROCEEDINGS BEFORE MASTERS. 143 fore the next rule-day succeeding the time when the refer- ence was made ; if he shall omit to do so, the adverse party shall be at liberty forthwith to cause proceedings to be had before the master, at the cost of the party procuring the reference." ^ By another rule it is made the duty of the master, upon every such reference, as soon as he reasonably can after the same is brought before him, to assign a time and place for proceeding in the same. And if either party fails to appear, the master may in his discretion proceed ex parte. And it is also made the duty of the master to proceed with all reason- able diligence, and with the least practicable delay ; and either party shall be at liberty to apply to the court or judge for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reason for any delay .^ These rules leave less to the mere will or pleasure of the parties, and seem better adapted than our own to secure de- spatch in the progress of a cause. In the absence of established rules, the order referring a cause to a master defines more specifically his powers and duties, making in fact a rule for the particular case ; as in the case cited in the margin, it was ordered by the court that T. L. V. " be, and he is hereby, appointed commissioner in the above-named action, to hear the parties, and to report the facts, and such of the evidence as either party may de- sire, and make report thereof to the court as soon as may be ; and if either party shall neglect to appear before said com- missioner, after having been duly notified of the time and place of the meeting, the said commissioner shall have power to proceed ex parte?" The term "commissioner" in this order is synonymous with master. The omission to provide specifically by rule, that the mas- 1 Rule 74. = Rule 75. » Dean v. Emerson, 102 Mass. 481, 482. 144 EQUITY PLEADINGS AND PEACTICE. ter may require the production of books, papers, and other documents, is unimportant, for a master in chancery, like " every court, having power definitely to hear and determine any suit, has by the common law inherent power to call for all adequate proofs of the facts in controversy." ^ The decree or order referring a cause to a master usually contained an order for the examination of parties upon interrogatories, under the directions of the master.^ But by statute, rule, or gen- eral practice, parties, as well as other witnesses, and creditors or other persons coming in to make claims before the master, may be examined by and before masters, either upon written interrogatories or orally, without any special direction there- for in the decree of reference.^ In Massachusetts it is pro- vided by statute that " in proceedings in equity the evidence shall be taken in the same manner as in suits at law, unless the court for special reasons otherwise directs." * It was formerly the practice, thut, when a witness had once been examined before the master, he could not be re-exam- ined without an order of the courts ; and that a witness who had been examined in chief before the hearing could not be re-examined before the master without an order, and then not to any inatter to which he had before been examined. It was also the practice to take the testimonj"- on written in- terrogatories and in secret, so that neither party knew what the evidence was until its publication. These rules of prac- tice in taking testimony were adopted, as it was said, to guard against the " very great danger of abuse from public examina- tions, by which parties are enabled to detect the weak parts of the adversary's case, or of their own, and to hunt up or 1 1 Greenl. Ev. § 309. See P. S. o. 169, § 6. 2 Hart V. Ten Eyck, 2 Johns. Ch. 513. 8 Rule 81, U. S. C. C. Kemsen v. Kemsen, 2 Johns. Ch. 499; Story ». Livingstone, 13 Peters, 359 ; Jackson v. Jackson, 2 Green Ch. 103 ; Bailey v. Myrick, 52 Maine, 132. * P. S. c. 169, § 66. Pingree v. Coffin, 12 Gray, 302; Milkman v. Ord- way, 106 Mass. 255. PROCEEDINGS BEFORE MASTERS. 145 fabricate testimony to meet the exigency of the inquiry." In trials at common law, it was said, " the cause is heard and the verdict taken at one sitting, and all opportunity for getting up suppletory proof is precluded." The reason for these rules, and the rules themselves, have disappeared from modern practice in equity, so far as they depend upon any difference in the mode of trying questions of fact in chancery and at common law. " The general rules," said Chancellor Kent in an early case heard before him, " which are to be deduced from the books, or which ought to prevail on the subject of examinations before the master, and which appear to me to be best calcu- lated to unite convenience and despatch with sound principles and safety, are, — " 1. That the parties should make their proofs as full before publication as the nature of the case requires or admits of, to the end that the supplementary proofs before the master may be as limited as the rights and responsibilities of the parties will admit.-^ " 2. That orders of reference should specify the principles on which the accounts are to be taken, or the inquiry proceed as far as the court shall have decided thereon ; and that the examinations before the master should be limited to such matters, within the limits of the order, as the principles of the decree or order may render necessary. " 3. That no witness in chief, examined before publication, nor the parties, ought to be examined before the master with- out an order for that purpose, which order usually specifies the subject and extent of the examination; and a similar order seems to be requisite when a witness, once examined, is sought to be examined again before the master on the same matter, i. . . 1 The rule now is, that the master may, at his discretion, examine and re-examine a party toties quoties, if he thinks proper, without a new order of court. Dan. Ch. Pr. (5th ed.) 1181. 10 146 EQUITY PLEADINGS AND PEACTICE. " 4. That the master ought, in the first instance, to ascer- tain from the parties, or their counsel, by suitable acknowledg- ments, what matters or items are agreed to or admitted ; and then, as a general rule, and for the sake of precision, the dis- puted items claimed by either party ought to be reduced to writing by the parties respectively, by way of charges and discharges, and the requisite proofs ought then to be taken on written interrogatories, prepared by the parties and ap- proved by the master, or by viva voce examination, as the parties shall deem most expedient, or the master shall think proper to direct in the given case. That the testimony may be taken in the presence of the parties or their counsel (except when by a special order of the court it is to be taken secretly) ; and it ought to be reduced to writing, in cases where the master shall deem it advisable, by him, or under his direction, as well where a party as where a witness is examined. " 5. That in all cases where the master is directed by the order to report the proofs, the depositions of the witnesses should be reduced to writing by the master, and subscribed by the witnesses, and the depositions returned with his report to the court. " 6. That when an examination is once begun before a master, he ought, on assigning a reasonable time to the par- ties, to proceed, with as little delay and intermission as the nature of the case will admit of, to the conclusion of the examination, and, when once concluded, it ought not to be opened for further proof without special and very satisfactory cause shown. " 7. That after the examination is concluded, in cases of reference to take accounts, or make inquiries, the parties, their solicitors or counsel, after being provided by the master with a copy of his report, ought to have a day assigned them to attend before the master, to the settling of his report, and to make objections in writing, if any they have ; and when the report is finally settled and signed, the parties ought PEOCEEDINGS BEFORE MASTEES. 147 to be confined, in their exceptions to be taken in court, to sucli objections as were overruled or disallowed by the master." ^ These rules haye undergone some modifications since they were thus promulgated by the learned Chancellor, but no more appropriate general directions can be found for governing masters in the discharge of their duties. The seventh of the foregoing rules in relation to the master's report is substan- tially adopted by our courts.^ By specific rules of the English Court of Chancery, and also of the United States courts, masters are. authorized to examine any creditor, or other person making a claim before them, either upon written interrogatories or viva voce, or in both modes, as the case may require.^ Under our practice a master appointed to hear the evi- dence, and to report the same and all facts bearing upon the questions at issue, has authority to decide upon controverted facts.* In the absence of specific rules, the limits of the master's powers and duties may be, and usually are, set forth in the order of reference.^ As to the nature of the evidence admissible upon a hearing before a master, our court has adopted no rule corresponding to that of the Circuit Courts of the United States, which pro- vides that "all affidavits, depositions, and documents which have been previously made, read, or used in the court upon any proceeding in any cause, may be used before the master."^ But our statutes and decisions have adopted the principle on which this brief and plain rule rests.^ But a question already determined by the court is not to be re-examined by 1 Remsen v. Remsen, 2 Johns. Ch. 501-503 (1817). 2 Ch. Rule 31. See Rule 83, U. S. C. C. 8 Ch. Rule 81, U. S. C. C. ; Dan. Ch. Pr. (5th ed.) 1188. * Jones V. Keen, 115 Mass. 182. 6 Dean v. Emerson, 102 Mass. 480; Ch. Rule 30. « Ch. Rule 80, U. S. C. C. ' P. S. c. 169, §§ 64, 66; Tyng v. Thayer, 8 Allen, 397. 148 EQUITY PLEADINGS AND PBACTICB. the master, upon a subsequent reference of the cause to him, to state an account, or fix the amount of a claim. ^ A person coming before a master to claim under a decree should first make a statement in writing of the facts under which his claim arises. And if the claim is disputed, the master may examine the claimant as he would a party, and hear evidence in support of and against the claim.^ In suits for specific performance, reference to a master is often ordered, to make inquiry as to titles. And upon such inquiry the master may at his discretion examine the parties, and receive evidence upon affidavit, or by the examination of witnesses either upon written interrogatories or viva voce? He may also call for such deeds and other muniments of title as are necessary to the elucidation of the title.* The master, after hearing, reports to the court whether he is or is not satisfied with the title as shown by the vendor. If he is not satisfied, he must state in what respect the title is defective.^ The order to a master to inquire into the vendor's title directs him, if he is of opinion a good title can be made, to state to the court when it was first shown it could be made. In a suit by the vendor against the vendee, when the title is found to be good, the further order usually directs that an account be taken of what is due the plaintiff for purchase money, interest, and costs of suit, and that the defendant pay the plaintiff the amount so found due, upon the latter's executing to the former a conveyance, to be settled by the master if the parties disagree about it.^ When the suit is by the purchaser against the vendor, the 1 Gilmore v. Gilmore, 40 Maine, 50 ; MoCrackan v. Valentine, 5 Selden, 42. 2 Hulbert V. McKay, 8 Paige, 652; Whitaker v. Wright, 2 Hare, 310. 8 Dan. Ch. Pr. 1180, and note 1. 4 Dan. Ch. Pr. 1217. ^ Andrew v. Andrew, 3 Sim. 390; Portman v. MiU, 1 Russell & Mylne, 696; Curling v. Flight, 2 Phil. 613. » Seton Dec. (1st Am. ed.) 661, 662. PKOCEEDINGS BEFORE MASTERS. 149 further order, after the title is approved, is similar in form to the order in the vendor's suit, except that the direction to pay precedes that to convey.^ The order of reference to a master to take and state ac- counts must be founded on the pleadings and proofs, and cannot be more extensive. " I take it for granted," says Chancellor Kent, "that the order for a reference must be founded upon the pleadings and proofs, and that it cannot be made more extensive than the allegata and the prohata of the parties." ^ The order of reference should give directions to the master as to the manner of taking the account, and the principles by which he should be governed in taking and stat- ing the account.^ The decree or order of reference should be adapted to the circumstances of each particular case, hav- ing reference to the nature of the account and character of the accountant, as to whether he is acting in his own or a representative character, as executor or administrator, or as trustee, guardian, or mortgagee in possession. In a suit by a mortgagor to redeem, if there is a reference to a master to state the account, the order is generally, " that it [the suit] be referred to, etc., to take an account of what is due to the defendant for principal and interest on the mortgage in the pleadings mentioned, and that the master do also take an account of rents and profits of the said mortgaged premises received by the defendant, or by any other person by his order, or for his use, since the day of , or which without his wilful default, might have been received therefrom.* And the amounts of said rents and profits are to 1 Dan. Ch. Pr. (5th ed.) 1221. 2 Consequa v. Fanning, 3 Johns. Ch. 595; Gordon v. Hobart, 2 Story, 260. » See Hudson v. Trenton Locomotive Co., 1 C. E. Green, 475; Rule 73, U. S. C. C. * Richardson v. Wallis, 5 Allen, 78; Miller v. Lincoln, 6 Gray, 556 ; Montague ». Boston & Albany R. R. Co., 124 Mass. 246. See 5 Pick. 259-270. 150 EQUITY PLEADINGS AND PRACTICE. be deducted from the amount found due to the defendant of principal and interest on said mortgage. And if the master shall find that the defendant has been in possession and held the said premises as owner thereof, then the master is to set a rent thereon, and take the account accordingly. And in taking the said account, he is to make the parties all just allowances, and particularly for all necessary repairs, and lasting improvements which have been made by the defendant on the said mortgaged premises since the day of," etc.^ The mortgagee is also entitled to be credited in the account with all other necessary expenses,^ and a reasonable commis- sion for managing the estate while in possession.^ As to the rule in other States and jurisdictions for stating the account between mortgagor and mortgagee, see the cases cited in the margm i The master's report as to all questions and inferences of fact involved in the account of the mortgagee will be con- sidered conclusive, unless it appears he has acted upon an erroneous view of the law, or under a mistake of fact, or exceeded his authority.^ A decree for the dissolution of a partnership is ordinarily accompanied with an order to take an account of aU the partnership dealings and transactions between the parties, and to certify the amount due from either of the parties to 1 P. S. c. 181, §§ 21-28; Reed v. Eeed, 10 Pick. 398; Adams v. Brown, 7 Cush. 220 ; Woodward v. Phillips, 14 Gray, 132. See McSorley v. Larissa, 100 Mass. 270. 2 Hubbard v. Shaw, 12 Allen, 120. » Gerrish v. Black, 104 Mass. 400. See Cazenove v. Cutler, 4 Met. 246. * Knapp V. Burnham, 11 Paige, 330; Adair v. Adair, 5 Mich. 204; Hughes V. Williams, 12 Ves. 493; Shaeffer v. Chambers, 2 Holt Ch. 548; Mayor v. Murray, L. R. 8 Ch. Div. 424 ; Russell u. Southard, 12 Howard, 154; Brown v. Simons, 44 N. H. 477; Kellogg v. Rockwell, 19 Conn. 446; 14 Vt. 501; Dexter v. Arnold, 2 Sumner, 126; Gordon v. Hobart, 2 Story, 243, 262. 5 Adams v. Brown, 7 Cush. 222; Howe v. Russell, 36 Maine, 115; Holabird v. Burr, 17 Conn. 563; Merriam v. Barton, 14 Vt. 514. PEOCEEDINGS BEFOEB MASTEES. 151 the other, with an order of payment of the amount found to be due. In stating an account, the master will compute interest in accordance with directions contained in the order of reference, or under the established provisions of law upon that subject, if any exist within the jurisdiction of the court by whose order he acts. It has been held in some courts that interest upon a bond cannot be allowed bej'^ond the amount of the penalty of the bond ; that is, that the debt and interest added shall not exceed that sum.^ But the contrary rule has been laid down in a great number of cases.^ Interest may be allowed on all sums due on demand, or at fixed periods, and is to be calculated from the date of the demand, or from the fixed period of payment.^ Interest will not be allowed on unliquidated demands, unless a time is fixed for payment, an account rendered, a demand made, or usage proved to warrant the allowance.* The master is sometimes directed in the order of reference to compute interest with costs. In which case interest is added to the principal at the time of the rest, and interest next computed is to be on the aggregate sum of the principal and prior interest.^ But it has been frequently held by courts of equity, that compound interest is to be regarded as iniqui- tous, and is not to be decreed in chancery, even in some cases where it has been agreed to by the parties ; ^ and that a special case must be made out before compound interest will be allowed.'^ ^ Hughes V. Wynne, 1 Mylne & Keen, 20. 2 See 6 Paige, 89 ; 8 N. H. 491 ; 10 Conn. 95 ; 1 C. E. Green, 59; Pitts V. Tilden, 2 Mass. 118 ; 3 Caines, 48 ; 13 Grattan, 354. ' Lowndes v. Collens, 17 Ves. 27 ; Daggett v. Pratt, 15 Mass. 177. * 12 Serg. & R. 393; 3 Hen. & Mun. 463; 3 Johns. Ch. 601; Barnard V. Bartholomew, 22 Pick. 294; Cole v. Trull, 9 Pick. 328. 6 Mowry v. Bishop, 5 Paige, 98 ; 2 Story Eq. Jur. § 1277. « Raphael v. Boehm, 11 Ves. 97; Farwell v. Sturdivant, 37 Maine, 308; Breckinridge v. Brooks, 2 A. K. Marsh. 339. 7 2 Story Efl. Jur. § 1277. 152 EQUITY PLEADINGS AND PKACTICE. There are various other matters often involved in proceed- ings before a master, which have been incidentally alluded to in cases already cited, but for which these pages do not furnish room for further discussion. Section II. — Master's Report. The master's report may be general, covering the whole case referred to him ; or special, embracing only some one distinct object of the reference, — the parties desiring for some reason to take the opinion of the master on some par- ticular matter without waiting for his final report.^ When the master has prepared his report, he should notify parties or counsel, and give them an opportunity to examine it and suggest such alterations, if any, as they wish made.^ By the rule of our courts cited below, the parties are allowed five days after such examination of the report within which to bring in written objections thereto, and these are to be ap- pended to the report. Notice of the filing of the master's report is to be forthwith sent by the clerk to each party or his counsel.^ The hearing before the masters is of course confined to matters put in issue by the pleadings, and cannot be extended to other matters, even by consent of parties.* And the report cannot be more extensive than the pleadings and proof warrant.^ The master should report his conclusion from the evidence, and not the evidence, unless specially ordered to do so.^ When by special order the master reports 1 Dan. Ch. Pr. (5th ed.) 1295; Ch. Rule 78, U. S. C. C. 2 Kemsen v. Remsen, 2 Johns. Ch. 501, 502; Ch. Rule 30 of S. J. C. 8 Rule 30, before cited. * Gordon v. Hobart, 2 Story, 261. 5 Levert v. Redwood, 9 Porter, 80 ; 2 Story, 261 ; Harris ti. Fly, 7 Paige, 421. « 3 Paige, 305; 26 Conn. 264; 27 Vt. 673; 40 Maine, 53. PROCEEDINGS BEFORE MASTERS. 153 the evidence, it is not to be embodied in his report, but should be annexed to it and certified by the master.^ No exception to a master's report will be allowed with- out a special order of the court, unless founded upon an objection made before the master, and shown by his report, and unless filed with the clerk within fifteen days from the fihng of the report.^ Exceptions when taken are to be filed with the clerk, and notice thereof forthwith given to the adverse party, and the exceptions shall then be set down for argument.^ Objections to the admissibility of evidence on a hearing before a master must be made at the time it is offered, as upon a trial before the court or jury, or its admis- sion will not be ground of exception, and the materiality of the evidence must be shown.* The court will not revise, upon exceptions, the conclusions of the master in matters of fact when the evidence is not reported.^ The master's report after it has been returned to the court may be amended under an order of the court. And this may be done without giving the case back to the master for a rehearing.® The master's findings in matters of fact will not be re- versed on exceptions, unless clearly shown to be erroneous.'^ And all exceptions to a master's report must be based upon objections overruled by him.^ 1 1 Hoff. Ch. Pr. 545; 15 Vt. 185; 3 C. E. Green, 141; Ch. Rule 44, New Jersey. 2 Ch. Rule .31, S. J. C. Mass. 8 Ch. Rule 82 ; Copeland v. Crane, 9 Pick. 78 ; 2 Sumner, 148 ; 13 Peters, 359; 2 Tenn. Ch. 589. 4 Fletcher v. Reed, 131 Mass. 312. s Sparhawk v. Wills, 5 Gray, 428 ; Drew v. Beard, 107 Mass. 78 ; State V. Mclntyre, 58 Maine, 214 ; Ashmead v. Colby, 26 Conn. 287. ' Heywood v. Miner, 102 Mass. 472; Huston v. Cassidy, 1 McCarter (N.J.), 320. ' Trow V. Berry, 113 Mass. 146; Newton v. Baker, 125 Mass. 33. « Pingree v. Coffin, 12 Gray, 288; Baker v. Mayo, 129 Mass. 519. 154 EQUITY PLEADINGS AND PEACTICE. Exceptions are in the nature of special demurrers, and the party excepting must show the error on which the exception is founded, or the exception will not be sustained.^ If the evidence reported clearly shows that the master is mistaken in his conclusions, the court will set them aside upon excep- tions properly taken. ^ The court may send a case back to the master to revise his report, even when exceptions have not been taken. And this may be done after the report has been confirmed. But this will be done only in cases of fraud, surprise, or mis- take.^ ^ National Bank v. Sprague, 8 C. E. Green, 81; Story v. Livingstone, 13 Peters, 359; Boston Iron Co. v. King, 2 Cush. 405, 406; Nichols v. Ela, 124 Mass. 337, 338. ^ Drew V. Beard, 107 Mass. 64. 8 Dan. Ch. Pr. (5th ed.) 1320, 1321. CHAPTER XII. ISSUES TO JUKT. The court may frame issues of fact to be tried by a jury, in an equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending, at the bar of the Supreme Judicial Court or of the Superior Court.i The Superior Court may frame issues of fact to be tried by a jury in an equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending.^ These are the plain and simple provisions of the statutes upon the subject; but the decisions of the Supreme Court thereon are involved in some apparent confusion, not to say conflict, though this confusion may, upon examination, be found perhaps in the language employed by individual judges in giving the opinions of the court, rather than in what is actually decided. In the case of Charles River Bridge v. Warren Bridge,^ the defendant claimed a trial of the whole case by a jury, basing his claim on the 15th article of the Peclaration of Rights. Against this claim it was con- tended, in behalf of the plaintiff, that suits in equity were included in the excepted cases referred to in that article. The court, leaving the question thus presented undecided, say : " We do not wish to decide the question now, any further than to declare, that a reasonable construction of the 15th article does not require that a suit in chancery shall be tried just as a suit at common law would be, and that 1 P. S. c. 151, § 27. '7 Pick. 368-370. " St. 1883, c. 223, § 16. 156 EQUITY PLEADINGS AND PRACTICE. there is no necessity that the whole case should be put to the jury. The most that can be said of the article is, that all controverted facts deemed essential to the fair and full trial of the case shall be passed upon by the jury, if the parties, or either of them, require it. And whether the facts proposed to be so tried are essential or not, must of necessity be deter- mined by the court. There are many facts stated in a bill and denied in an answer, and also facts alleged in an answer, which are wholly immaterial to the merits of the case, and such facts the court may refuse to put to the jury ; just as in an action at common law, if a party offers to prove facts which are irrelevant, the court may reject the proof. The right of the party to go to the jury is preserved, if he is allowed that course in regard to all such facts as have a bearing upon the issue for trial." In the case of Ward v. Hill,^ Chief Justice Shaw said, " We suppose it well estab- lished as a rule of chancery, that, on a hearing, an issue to try a matter of fact will be ordered or not according to the sound judicial discretion of the court." And it was held in that case, that the order of a single justice directing an issue to a jury was not open to exception.^ In Shaw v. Norfolk Railroad Co.,^ Merrick, J., in giving the opinion of the court, said, " There is no doubt that, under the provisions of the Constitution, parties in cases in equity, as well as at law, are entitled to trial by jury for the determination of all contro- verted questions of fact." But this has been declared by the court, in a later case, to have been an unguarded concession, not required by the case.* The first time the case of Charles River Bridge v. Warren Bridge was before the full court,^ Parker, C. J., in consid- ering an objection to a particular statute, said, "If the con- 1 4 Gray, 595. '' See also Crittenden v. Field, 8 Gray, 626; 128 Mass. 356. » 16 Gray, 409. * Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 47. « 6 Pick. 399. ISSUES TO JUET. 157 struction contended for was the true one, and the effect of it would be to deprive the party of his right to trial by jury, then the statute itself was void, for the legislature cannot ordain a process hy which controversies respecting property shall he ultimately decided without trial hy juryP But the court in Dorr v. Tremont Bank i say, that whether any and what issues in equity shall be submitted to a jury, is a sub- ject of appeal under the General Statutes, c. 113, § 10 (P. S. 0. 151, § 16), and not of a bill of exceptions, because it in- volves a question of discretion, and not merely of law. Does not this statement need qualification ? If there are any cases in equity in which a party has a constitutional right to a trial by jury, then it is not matter of discretion with the court to grant or deny him such trial. In the case of Franklin v. Greene,^ Chapman, J. says: " The right of trial by jury in this Commonwealth is secured by the Constitution. But in suits in equity the issues do not grow out of the pleadings, as in suits at law, but are framed by the court ; yet in framing the issues the court will have regard to the constitutional provisions, and will allow the par- ties to submit to a jury all such material facts as are proper to be decided by them." ' But what the material facts are, which are proper to he decided hy a jury, is a question which the court leaves wholly unanswered ; and it furnishes no test or standard by which the question is to be determined. To say the court " will allow the parties to submit to a jury all such material facts as are proper to be decided by them," set- tles nothing, for it leaves the question still without an answer, What are the material facts that are proper to be decided by a jury ? In the case of Harris v. Mackintosh, which was an appeal from the refusal of a single justice to grant the motion of 1 128 Mass. 356. 2 2 Allen, 519. ^ This language is qualified by the same judge in giving the opinion of the court in Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 47. 158 EQiriTY PLEADINGS AND PEACTICE. the defendant to have issues framed for a jury, the court say: " Under all the circumstances of the case, without passing upon the question whether the defendant had a constitutional right to trial hj jury, we are of opinion that it was erroneous to refuse to the defendant the right to have issues framed which should submit to a jury the important facts which were in controversy between himself and the plaintiff." ^ In Pomeroy v. Winship, which was a bill in equity to redeem mortgaged premises, the defendant set forth a deed in his answer, as a reason why the plaintiff should not be permitted to redeem ; this rendered it necessary that the court should have proof of the execution of the deed, and also of its genuineness, if suspicion should arise from the circumstances of its execution and delivery. This let in the other party to contradict it, and the court was called on to determine from the facts proved whether anything passed by the deed to the supposed grantee or not. This inquiry, it was said, might be made by the court without the inter- vention of a jury. If, by the principles of the Constitution, the party may insist upon a jury, this will only prove that one ought to be impanelled to try the fact. But where the party himself submits his case to the court under this pro- cess, he may be considered as waiving any right to a trial by jury, and so would have no cause to complain.^ But how can a defendant, who obeys a compulsory process, be said voluntarily to submit to the court his title, which, if he makes any defence, he is compelled to set up in his answer ? In a much later case than that last cited. Gray, C. J., in giv- ing the opinion of the court, said : " In a suit in equity, the plaintiff, at best, has no absolute right to a trial by jury; but when he avails himself of the jurisdiction in equity con- ferred by the legislature upon this court to obtain a remedy which he could not otherwise have, he must take it subject to the rules which govern courts of chancery, and can have 1 Harris v. Mackintosh, 133 Mass. 232. « 12 Mass. 524. ISSUES TO JUEY. 159 a trial by jury only at the discretion of the court." ^ How can a party be said to have waived or lost a constitutional right, by going into the only court provided by the Consti- tution and laws which can give him adequate redress? The 15th article of the Bill of Rights declares, that, " in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has hereto- fore been otherways used and practised, the parties have a right to a trial by jury ; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall here- after find it necessary to alter it." This clearly recognizes two classes of civil causes, one of which before the adoption of the Constitution was tried by a jury, and one without a jury. Now if a party has a cause in court belonging to the first class, why has he not a constitutional right of trial by jury, and can it be a matter of discretion with the court to grant or deny him such trial ? Under a statute giving to the plaintiff an option to proceed by bill in equity or by action at law, to recover back usurious interest he has paid, the court held that, by electing to pro- ceed by bill in equity, he did not waive his right to ask for a trial by jury. The language of the court in that case is, " We think that, when he elects to proceed by bill in equity, he has the full benefit of that remedy, with all its incidents ; and that an election to proceed by bill in equity is no waiver of his right to ask for a trial by jury, where in other respects he would be entitled to it."^ Why then should a party having a constitutional right of trial by jury in a given case be held to waive that right by electing to proceed by bill in equity rather than by an action at law? In Pomeroy v. Winship,^ Parker, C. J. said : " When the statute creating equity jurisdiction authorized the court to 1 Kuss V. New England Ins. Co., 120 Mass. 117. 2 Ward V. Hill, 4 Gray, 595. » 12 Mass. 525. 160 EQUITY PLEADINGS AND PEACTICB. proceed and determine according to equity and good con- science, it was undoubtedly intended that they should pro- ceed, as to the subject matter of their jurisdiction, in the same manner as courts of similar jurisdiction proceed in England, to whose laws and forms of trial all our statute provisions are referable, when no particular provision for the mode of trial is enacted. Now the courts of chancery in England have immemorially exercised the power of direct- ing an issue, and sending it to a common law court to be tried, whenever any material facts are strongly controverted, and they believe a trial by jury is expedient." And it is well known to every student of our legal history, that the chancery practice in this State before the adoption of the Constitution was substantially the same as that in the Eng- lish courts. It is true there was no separate chancery court established here, after the abrogation in 1699 of the Provin- cial act creating such a court ; but so far as the common law courts exercised chancery jurisdiction, it was done in con- formity with the English practice, from which all our forms and rules of procedure are derived. Now, according to the original practice of the Court of Chancery, it was usual in certain cases where legal rights were involved, or where there was great difficulty in decid- ing upon facts, to give the parties leave to bring an action, or to direct an issue to be tried by a jury, in a court of com- mon law ; but it was subsequently provided that, whenever any relief or remedy within the jurisdiction of the Court of Chancery was sought in any cause or matter incident to or dependent upon a legal right, every question of law or fact cognizable in a court of common law, on the determi- nation of which the title to such relief or remedy depended, should be determined by or before the Court of Chancery, with or without a special or common jury, except that, when- ever it appeared to the court that any question of fact might, under the circumstances of the case, be more conveniently ISSUES TO JUEY. 161 tried by a jury in the superior courts of common law, the court might direct an issue whereby any such question might be so tried.' There were some cases, moreover, where the court directed issues, although there was no contradic- tory eyidence ; as when the title of heirs at law to the estate of their ancestor was in dispute ; and so strongly did courts of equity consider the claim of the heirs, that they would not, if the heir objected, even where the evidence before them was such as to leave no ground for doubt upon the subject, take upon themselves to establish a will affecting real estate, without previously having the opinion of a jury upon an issue devisavit vel non? Such was the practice in England before the adoption of our Constitution, and Chief Justice Parker says, as above quoted, that the practice in chancery was well known to be the same here as in England. How, then, can it be doubted that there are equity cases in which, under our Constitution, either or both parties have a right to demand a jury trial? From this review of the cases it is diflBcult to ascertain precisely what rule the full court has adopted, by which we are to determine in what cases, if any, parties have a constitutional right to demand, in equity causes, a trial by jury of questions of controverted facts ; and when it is a matter of discretion with the court, what the principle is by which that discretion is to be regulated. The whole difficulty as to the first part of the inquiry would seem to lie in settling the historical question, as to what cases were and what were not tried by jury before the adoption of the Constitution. And as to the latter part of the inquiry, may not the question be satisfactorily answered by observing the distinction between legal and equitable rights? This sub- ject has been considered by the highest courts in other juris- dictions. 1 Dan. Ch. Pr. (6th Eng. ed.) 710, 711; 12 Jur. n. s. 441. 2 Dan. Ch. Pr. (6th Eng. ed.) 712, 713. 11 162 EQUITY PLEADINGS AND PRACTICE. The New York Court of Appeals say in a cause in which this question as to the constitutional right of trial by jury arose : " The issue, being strictly a legal issue in its character, is one in the trial of which, in the language of the Constitu- tion, the trial by jury has been heretofore used. Such a trial was therefore the constitutional right of the parties. The only consequence of joining with such a cause of action other equitable causes, which are well founded, is that all must be tried by a jury." ^ A party cannot be deprived of this, his constitutional privi- lege, by a mere technicality.^ The Constitution of New Hampshire guarantees the right of trial by jury, " except in cases in which it has been hereto- fore otherwise used and practised." Under this provision it has been held by the Supreme Court of that State, that a party to a bill in equity has a constitutional right to require a trial by jury of a controverted matter of fact, if he asserts that right at a proper stage of the cause.' In another case, the same court declares that, " from Magna Charta to the present day, trial by jury has been frequently guaranteed in general terms, that are not to be restricted to a narrow meaning and operation by any literal or illiberal interpretation." * Mr. Justice Matthews, giving the opinion of the Supreme Court of the United States, says, " It is the settled doctrine of this court that this distinction of jurisdiction between law and equity is constitutional, to the extent to which the Seventh Amendment forbids any infringement of the right of trial by jury, as fixed by the common law." ^ In Maine it was formerly held to be within the discretion 1 People V. Albany & Susequehanna E. R. Co., 57 N. T. 174. 2 57 N. T. 176; Davis v. Morris, 36 N. Y. 569; Bradley v. Aldrioh, 40 N. T. 511. a Hoitt V. Burleigh, 18 N. H. 390. * Copp ». Henniker, 55 N. H. 187. 6 Boot V. Railway Co., 105 U. S. 206, 207. ISSUES TO JTJEY. 163 of the court to grant or refuse a trial by jury in equity suits. But by St. 1873, c. 130, it was made imperative on the court to order an issue on matters of fact in an equity suit to a jury, when requested by either party .^ By the present prac- tice in the Chancery Division of the English court, every party to an action (all equity suits are called actions) has prima facie a right to have issues of fact tried before a judge and jury, and the court or judge may, if it shall appear either before or at the trial that any issue of fact can be more con- veniently heard before a jury, direct that such issue shall be so tried.2 " Why, under our system of laws, which are so scrupulously careful to preserve the sacred right of trial by jury, should not every party to a suit in equity be held to have a prima fade right to have issues of fact tried by a jury? At this point of the discussion, the writer's attention has for the first time been called to a recent and unpublished decision of the full court on the subject of this chapter ,3 in which Mr. Justice Field, giving the opinion, has finally established the right of trial by jury in equity suits in this Commonwealth upon a definite and satisfactory basis. The bill in this case was founded on P. S. c. 151, § 3, to collect a debt out of per- sonal chattels of the debtors conveyed to a third party in fraud of creditors. The court below refused to order issues to a jury, and the case came before the full court upon appeal from that refusal. " It is plain," says the learned judge, " that the question whether the Raymonds are indebted to the plaintiff for goods sold and dehvered, is a controversy con- cerning property, which, when the Constitution was adopted, had been always tried by a jury in Massachusetts since the Province charter, had been usually so tried before that char- ter, and had been so tried in England ; that it is not a case J Bean v. Herrick, 12 Maine, 262; Call v. Perkins, 65 Maine, 447. « Dan Ch. Pr. (6th Eng. ed.) 675, 712, 721. » Powers V. Raymond, 137 Mass. 483. 164 EQUITY PLEADINGS AND PEACTICB. in which a trial otherwise than by jury had heretofore been used and practised, or a case in its essential features unknown to the jurisprudence of the Province and the State at that time. . . . The rights sought to be determined and enforced are essentially legal, as distinguished from equitable rights. The statute has changed the mode of procedure, but it would be trifling with the Constitution to hold that, by changing the forms of procedure, the substantial rights declared by it can be taken away. In all controversies which are within the purview of that article of the Declaration of Rights, the ' method of procedure ' of a trial by jury must be held sacred, whatever the other forms of procedure may be." By the present English practice the court can at any time order an issue to the jury, whether the parties request it or not. And any court of general chancery powers may un- doubtedly do the same thing, for the original purpose of tak- ing the verdict of a jury upon controverted questions of fact was to inform the conscience of the court, and enable it the better to decide the whole cause before it. Under our own practice, it has been held that a motion for a trial on issues of fact should ordinarily be made before the case is referred to a master.^ But the court may in its discretion order an issue to a jury, even after the coming in of the master's report, if the evi- dence produced before the master appears to be conflicting, or his findings thereon unsatisfactory, or the hearing before him has developed new questions of fact, or if, for other reasons, the court deems it fit that any issue in the cause should be tried by a jury .2 Issues to a jury in equity have commonly been framed in one of three forms : First, by directing parties to plead to an issue, and submitting to the jury the issues joined. Second, 1 Atlanta Mills v. Mason, 120 Mass. 244; Parker v. Nickerson, 137 Mass. 487. 2 120 Mass. 244. ISSUES TO JtTBY. 165 by reciting in the order what the one party alleges and the other claims, and direct the issues so made by such allega- tions and denials to be tried by a jury. Third, by directing issues framed in the form of a simple question, and recited in the order, to be tried by a jury.^ It has been heretofore held by the fuU court, that ordering an issue to a jury in a suit in equity, being, as thej' said, within the discretion of the presiding judge, is not matter of exception, but that an appeal lies from such order, or refusal to order, to the full court.^ But since the court has decided that, in certain classes of cases in equity, parties have a constitutional right of trial by jury, will not a denial of that right be matter of exception ? A verdict of a jury in a suit in equity, upon issues of fact submitted to them, if not set aside for good cause, will be regarded as settling the facts in issue conclusively.^ 1 Dorr V. Tremont Bank, 128 Mass. 358. 2 Ward V. HiU, 4 Gray, 595; Brooks v. TarbeU, 103 Mass. 496; Stock- bridge Iron Co. V. Hudson Iron Co. , 102 Mass. 45. * Franklin v. Greene, 2 Allen, 519. CHAPTER XIII. EVIDENCE. In the foregoing chapters we have considered the steps or proceedings that are or may be necessary to complete the plaintiff's statement of his claim and the defendant's state- ment of his defence. If the result of these preliminary pro- ceedings is merely to present a question of law, that will be for the court to decide without any other evidence than that which is contained in the pleadings in the case. If the re- sult is to present an issue of fact, that must be tried upon proper evidence, either by the court itself or upon issues framed for the jury, or be sent to a master for a hearing in the first instance by him, and afterwards, upon his report, by the court. But whatever mode maj' be adopted for the trial of ques- tions of fact, it will be for each party carefully to consider what he must prove to support his statement of claim or defence, and the proper evidence by which that proof can be made. And this will necessarily lead, in the first place, to consider what is admitted by the pleadings. By the 28th Rule for the regulation of practice in chancery in this State, it is provided that " all facts well alleged in a bUl, other than for discovery only, which are not denied or put in issue by the answer, shaU be deemed to be ad- mitted." And if the plaintiff elects, as he may do, to set the case down for hearing upon the bill and answer, without fihng any replication,^ all the allegations of the answer are 1 Ch. Rule 16. The same is the rule in New Hampshire. EVIDENCE. 167 to be taken as true.^ " When a cause," says Chancellor Kent, " has been brought to a hearing by the plaintiff, upon the bill and answer, the answer is to be taken for true in all points. This is a rule admitted throughout the books to be well settled. "2 It is an equally well-settled rule, that whatever is neces- sary to show that the plaintiff is entitled to a decree against the defendant, or to support the defence against the plaintiff, must be proved. And therefore what is not admitted by the pleadings must be proved by evidence aliunde. But independent of a specific rule of court, and where the cause is not brought to a hearing upon the bill and answer, what is the rule as to requiring the plaintiff to prove the allega- tions of his bill which are neither admitted nor denied in the answer ? Chief Justice Marshall states the rule in three lines thus : " If the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing. Upon a. question of the dissolution of an injunction, they are to be taken to be true." ^ This rule is not, however, adopted in all the States. But facts weU pleaded in the bill and not denied in the answer are taken as admitted.* And in some States there is a distinction made between facts alleged to be within the knowledge of the defendant and those which are not. The first, if not denied in the answer, are taken as admitted, the latter not.^ Where the defendant pleads to the whole or a part of the bill, the bill, or the part pleaded to which is not controverted by the plea, is constructively admitted to 1 Perkins v. Nichols, 11 Allen, 544. 2 Brinokerhofi v. Brown, 7 Johns. Ch. 223. ' Young V. Grundy, 6 Cr. 51. See also Brown i>. Piei-ce, 7 Wall. 211 ; Brockway v. Copp, 3 Paige, 539 ; Hardwick v. Bassett, 25 Mich. 149. * Sanborn v. Adair, 2 Stewart (N. J.) 338. 6 Mead v. Day, 54 Miss. 58; McCampbell v. Gill, 4 J. J. Marsh. (Ky.) 87 ; Neale v. Hagthorp, 3 Bland (Md.) 551 ; Gamble v. Johnson, 9 Mo. 605; Nelson v. Pinegar, 30 lU. 473. 168 EQUITY PLEADINGS AND PEACTICE. be true.i The pleadings are not in themselves evidence, although they may have the effect of evidence by admitting, or failing to deny, what the adverse party would otherwise be required to prove. The plaintiff cannot, as a general rule, read his bill in support of his own case, nor can the defendant read his answer in support of his defence ; but each may read so much of his adversary's bill, answer, or plea as will tend to support his own side of the controversy. In regard to the use as evidence the plaintiff may make of the defendant's answer, when that is put in issue, it is a well-established rule in equity that the plaintiff may read so much of the answer as admits facts set forth in the bill, without reading or being bound by other averments in the answer in avoidance of the effect of the admissions. As, for instance, where the de- fendant, being called on to account for moneys received by him on behalf of the plaintiff, admits in his answer the receipt of the money, but proceeds to aver that he afterwards paid it out on account of the plaintiff, the plaintiff may upon the hearing avail himself of the admission, but the defendant must prove by other evidence than his answer the alleged payment. This subject is elaborately considered, and the authorities reviewed by Chancellor Kent, in the case cited below.^ In regard to the use the plaintiff may make of the answer put in by the committee of a trustee, or by the guardian of a minor, or other person incapable of answer- ing for himself, the rule or practice may be inferred from what has been said on the subject in other parts of this work. In general the answer of one defendant cannot be read as evidence against his co-defendant. There are exceptions to this rule, founded upon the same principle which makes the 1 Wigram on Disc. 56 ; Webster v. Webster, 1 Sm. & G. 489 ; 4 DeG., M. & G. 437. = Hart V. Ten Eyck, 2 Johns. Ch. 91-94. See also Clements v. Moore, 6 Wall. 315 ; and New England Bank v. Lewis, 8 Pick. 120. EVroENOE. 169 confessions of one party evidence against another.^ The an- swer of one defendant in a bill of interpleader may also be read against his co-defendant, to show that adverse claims are made.^ Although the defendant wUl not be permitted to read his an- swer as evidence in his own defence, yet it is an established rule that, where the answer is supported by the oath of the defend- ant, and in express terms negatives the allegations of the bill, the court will not make a decree against the defendant where what has been so negatived is supported by the testimony of only one witness.^ The denial in such case, to have the effect statedj must be positive, and not as a matter of belief only.* Besides the admission of facts by the form of the plead- ings, there may of course be, and often are, admissions by ex- press agreement of parties in equity suits, as well as in suits at law. The rules, that the burden of proof rests upon the party who holds the affirmative of the proposition to be proved, that the evidence must be limited to the issues raised by the pleadings, and as to the effect of a variance between the proofs and allegations, are the same in equity as in suits at common law. The space which might be occupied with illustrations of these familiar rules will therefore be reserved for the consideration of other topics. The evidence by which questions of fact are to be estab- lished is documentary or parol evidence. There are large classes of documentary evidence which require no extra- neous evidence, while there is other documentary evidence that must be supported by parol evidence before it can be received. 1 1 Greenl. Ev. § 178. " Chewet v. Jones, 6 Mad. 267. « Dan. Ch. Pr. (5th ed.) 844 ; and the learned note (7) of the editor, Chancellor Cooper, pp. 844r-846. * Amot V. Biscoe, 1 Ves. Sen. 95; and see Dan. Ch. Pr. (5th ed.), note 1, pp. 846. 847. 170 EQUITY PLEADINGS AND PKACTICB. The records and judicial proceedings of any court of another State, or of the United States, when duly authenticated by the proper officer, and under the seal of the court, are received in evidence in all cases in this Commonwealth without other proof. So, also, all acts of incorporation shall be deemed pub- lic acts, and may be given in evidence ; the printed copies of all statutes, acts, and resolves of the Commonwealth shall be admitted as evidence thereof; copies of books, papers, docu- ments, and records in the executive and other departments of the Commonwealth, duly authenticated by the officer having charge of the same, shall be competent evidence, if the genu- ineness of such officer is attested by the Secretary of the Commonwealth under its seal ; printed copies of the statute laws of any other State and of the United States, or of the Territories thereof, if purporting to be published under the authority of their respective governments, etc., are received here as prima facie evidence of such law. The unwritten or common law of any other of the United States or Territories may be proved as facts by parol evidence, and by the books of reports of cases adjudged in their courts ; the existence, tenor, or effect of all foreign laws may be proved as facts by parol evidence ; all oaths and affidavits administered or taken by a notary public duly commissioned, etc., and certified under his official seal, shall be as effectual in this Common- wealth as if administered or taken and certified by a justice of the peace therein.^ Similar statutes in relation to the proof of what may be called public documents will be found in other States and in England ; but the English statutes, as usual, will be found more comprehensive and complete than our own on this subject, as on most others relating to courts and the administration of the laws. Private documents thirty years old or more prove them- 1 P. S. c. 169, §§ 67-74; 1 Greenl. Ev. §§ 486-490. For the mode of authenticating the judicial records of other States, see 1 Greenl. Ev. §§ 504-506. EVIDENCE. 171 selves ; and the attesting witness, though living, need not be called to prove the execution of such ancient writings.^ But they must be free from just ground of suspicion, and must come from the proper custody, or have been acted upon so as to afford some corroboration of their genuineness.^ This rule as to the proof of ancient documents is an exception to the general rule, that private documents, such as deeds, wills, bonds, written contracts, etc., must be duly proved by parol testimony before they can be read in evidence. If the instrument offered in evidence has an attesting wit- ness, that witness, if alive and within the jurisdiction of the ■ court, must be called ; if he cannot be produced, the execution of the instrument may be proved by the same kind of evidence as if there had been no attesting witness. It is provided by statute in England, that, when an instru- ment to the validity of which attestation is not requisite has been attested, such instrument may be proved by admission or otherwise, as if there had been no attesting witness thereto.^ The rule is otherwise in this Commonwealth.* If it is requi- site that an instrument should be recorded or stamped, it will not be received in evidence unless that has been done.^ It has, however, been held that a law of the United States de- claring that no instrument or document not duly stamped shall "be admitted or used as evidence in any court until the requisite stamps shall be affixed," does not establish a rule of evidence for the State courts, and such unstamped instruments are held to be admissible as evidence in these courts.^ 1 Winn V. Paterson, 9 Peters, 674; Green v. Chelsea, 24 Pick. 71; 129 Mass. 469. 2 1 Greenl. Ev. § 570; Dan. Ch. Pr. (5th ed.) 882. « 17 & 18 Vict. c. 125, § 26. * Brigham v. Parker, 3 Allen, 450. 6 Smith V. Henley, 1 Phil. 391. « Carpenter v. Snelling, 97 Mass. 458 ; Disbrow v. Johnson, 3 C. E. Green, 36 ; Davy v. Morgan. 56 Barb. 218. 172 EQUITY PLEADINGS AND PRACTICE. In regard to the manner of taking evidence in equity suits, it is provided by statute in this State that " in proceedings in equity the evidence shall be taken in the same manner as in suits at law, unless the court for special reasons otherwise directs ; but this shall not prevent the use of affidavits where they have heretofore been used." ^ In commenting on this statute as it was originally passed in 1852, Chief Justice Shaw says : " There is no reason why the statute should not have the same construction practically which it has literally. The words are, 'the evidence shall be taken in the same manner' in equity as at law. That is to say, it is to be taken viva voce when it can be so taken, and when depositions would be allowed in an action at law, they may be taken in equity ; and all the rules of law as to the taking and filing of depositions at law will apply in equity." ^ According to well-established rules of chancery practice, written documents may be proved at the hearing as exhibits viva voce or by affidavit; such as deeds, bonds, promissory notes, bills of exchange, letters, or receipts, of which proof must be made of the handwriting of the persons writing or executing the same.^ There are numerous exceptions to this rule, and it may be generally stated as the ground of these exceptions that a deed or other instrument cannot be proved as an exhibit at the hearing viva voce, or by affidavit, if any- thing more than its execution or authenticity is impeached or called in question. To authorize a party to make such proof of exhibits at the hearing, they must be referred to in the 1 P. S. c. 169, § 66. See also §§ 25 and 65 of the same chapter. As to the manner of taking testimony by deposition, see Ch. Rule 29. As to the use of affidavits, see Ch. Rules 67 and 68, U. S. C. C. 2 Pingree v. Coffin, 12 Cush. 601. See Milkman v. Ordway, 106 Mass. 255 ; Ch. Rule 14 in Maine; Rules 67 and 71, U. S. C. C. ; Rule 78, New Jersey ; 1 Greenl. Ev. §§ 320-325 ; Dan. Ch. Pr. (5th ed.) 916-919, and notes. » Dan. Ch. Pr. (5th ed.) 881-884. EVIDENCE. 173 pleadings, or in an order obtained from the court for leave to make the proofs, and the order must be served upon the adverse party before the hearing.^ The depositions of witnesses may be taken de bene esse and in perpetuam rei memoriam. And the manner in which such depositions may be taken, and the reasons for which they may be taken, are defined and regulated by statute in some jurisdictions, and by rules of court in others.^ The examination of a witness de bene esse is incidental to a pend- ing suit ; the examination in perpetuam takes place upon an independent proceeding instituted for that purpose. The former disqualification of witnesses, on the ground of being parties to the suit or having an interest therein, or on account of crimes of which they may have been convicted, or from want of religious belief, and the manner of their examination, have been so essentially changed by statutes or specific rules of court, that it is only necessary in this con- nection to call attention to these statutes and rules. The statute in this State upon this subject provides that " no per- son of sufficient understanding, whether a party or otherwise, shall be excluded from giving evidence as a witness in any proceeding, civil or criminal, in court, or before a person having authority to receive evidence, except that neither husband nor wife shall be allowed to testify as to private conversations with each other ; nor shall either be com- pelled to be a witness on any trial upon an indictment, etc. against the other; nor shall a defendant in a criminal trial be called on to testify except at his own request." ^ A simi- lar statute exists in Maine, in New Jersey, and in many of the other States. The competency of witnesses in the 1 Bank v. Farques, 1 Ambl. 145; Bird v. Lake, 1 Hem. & Mill. Ill; Miller v. Avery, 2 Barb. Ch. 582; Hind Pr. 370. 2 P. S. (Mass.)c. 169, §§ 45-64; Ch. Rule 70, U. S. C. C; Rockwell v. Folsom, 4 Johns. Ch. 165; Huffman v. Barkley, 1 Bailey Eq. Rep. (S. C.) 34; Forbes v. Forbes, 9 Hare, 461; Story Eq. PI. § 308. « P. S. c. 169, § 18. 174 EQUITY PLEATDINGS AND PEACTICE. United State courts is determined by the laws of the State in which the court is held, except as is otherwise proyided by a section of the Revised Statutes of the United States cited below.^ Evidence in support of interlocutory applications is usually taken by affidavit. The affidavit may be sworn to before any person authorized to administer oaths. If the affidavit be made out of the jurisdiction of the court before which it is to be read, it should be made to appear that the person before whom the affidavit was sworn to was a person au- thorized to administer an oath by the laws of the country in which the affidavit was made.^ The affidavit shall correctly state the title of the cause in which it is made and to be used ; ^ it should be expressed in the first person, and state the defendant's place of residence, description, and addition. If the affidavit contains scandalous or impertinent matter, the court may, upon examination, order the scandalous and impertinent matter expunged.* The affidavit should be signed by the affiant, and the jurat by the officer before whom the affidavit is taken. Jurats and affidavits, when contrary to practice, are open to objection in any stage of the cause.^ In this connection, although not entirely germane to the subject under considera- tion, it may be stated that, when a bill seeking a discovery of deeds or other writings prays relief, founded on such deeds or writings, the plaintiff should annex to his bill an affidavit that they are not in his possession or custody, if the relief so prayed be such as might be obtained at law if the deeds, etc. were in the plaintiff's custody .^ 1 U. S. Eev. Sts. c. 17, § 858. = Hutcheon v. Mannington, 6 Ves. 823 ; Warren f. Swinbum, 9 Jur. 510; Haggitt v. Iniff, 5 DeG.,M. & G. 910. 8 Hawley o. Donnelly, 8 Paige, 415; White v. Hess, lb. 544. * Powell 0. Kane, 5 Paige, 265. « Dan. Ch. Pr. (5th ed.) 898. • Story Eq. PL § 477. EVIDENCE. ■ 175 Formerly the almost uniform mode of examining witnesses in equity was by written interrogatories. But that practice no longer exists either in England or in this country, though courts may for sufficient reason order evidence to be taken in that manner. As has been shown, evidence in equity pro- ceedings in this State is to be taken in the same manner as in suits at law.i When evidence is to be taken orally, examin- ers may be appointed by the court for the purpose.^ By the 67th Rule in Equity of the Circuit Courts of the United States, it is provided that 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 wit- nesses shall be examined before an examiner appointed by the court. The answers of the witness should not be prepared beforehand.^ And if prepared by the party for whose benefit the evidence is taken, the deposition will be rejected.* When the witness is required to produce any written docu- ment in his possession, the process by which he is summoned must be a subpoena duces tecum ; and when so summoned the witness must attend and produce the document called for, unless he has some reasonable excuse for withholding it: and of that the court, and not the witness, will judge.^ In the case cited, Shaw, C. J. says, "It has been decided, though it was formerly doubted, that a subpoena duces tecum is a writ of compulsory obligation, which the court has power to issue, and which the witness is bound to obey, and which will be enforced by proper process to compel the production of the paper, when the witness has no lawful or reasonable excuse for withholding it." 1 P. S. c. 169, § 66. 2 State V. Levy, 3 Har. & McH. 591 ; Ch. Rule 42, New Jersey. 8 Underbill v. Van Cortlaudt, 2 Johns. Ch. 339. * Amory v. Fellows, 5 Mass. 219; Allen v. Kand, 5 Conn. 322; Hickofc V. Farmers & Mechanics' Bank, 35 Vt. 490. « Bull V. Loveland, 10 Pick. 14; Amey v. Long, 9 East, 473; Murray p. Elston, 8 C. E. Green, 212; Commonwealth v. Jeffries, 7 Allen, 548. 176 EQUITY PLEADINGS AND PRACTICE. Publication, under the English practice, is the open show- ing of depositions and giving copies of them to the parties, by the clerks or examiners in whose custody they are.^ In this country the rules and practice on the subject vary. In Massachusetts, the offering and filing of deposition in the clerk's office is equivalent to publication.^ By a rule of the United States courts, publication of depositions may be or- dered by a judge of the court immediately upon their return into the clerk's office.^ In New Jersey a commission may be ordered by a judge in vacation.* In Maryland there are no rules as to publication of depositions.^ Where the time for taking testimony is limited by the rules or orders of the court, witnesses cannot be examined after that time, unless it is enlarged by order of the court upon a motion for that purpose.® 1 Dan. Ch. Pr. (5th ed.) 946. " Charles River Bridge v. Warren Bridge, 7 Pick. 364. 8 Ch. Rule 69. ^ Den V. Wood, 5 Halst. 62. ^ Strike's case, 1 Bland, 96. 6 Wood V. Mann, 2 Sumner, 316; Hamersly v. Brown, 2 Johns. Ch. 428. CHAPTER XIV. TAKING THE BILL PRO CONFESSO* If the defendant shall not appear and file his answer, plea, or demurrer -within one month after the day of appearance, the plaintiff may enter an order to take his bill for confessed ; and the matter thereof may be decreed accordingly, unless good cause shall appear to the contrary .^ And if a plea or demurrer be overruled, the defendant shall within one month answer the plaintiffs bill, or a like order may be entered, and so much of the bill as is covered by the plea or demurrer may be taken for confessed and decreed accordingly, unless good cause shall appear to the contrary .^ These are two of the rules of the Supreme Judicial Court of Massachusetts for the regulation of practice in chancery. It will be observed that they contain no direction as to the time when, or the means by which, a final decree is to be obtained, after the entry of the interlocutory order. This must be learned from other sources. The corresponding rules of the United States courts provide that, in default of an answer by the defendant, the plaintiff may, at his election, enter an order 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.^ * This subject has been incidentally, but very briefly, considered in Chapter IV. 1 Ch. Rule 8. 2 Ch. Rule 11. « Ch. Rule 18, U. S. C. C. 12 178 EQUITY PLEADINGS AND PKACTICE. When the bill is taken pro confesso, the court may proceed to a decree at any time after the expiration of thirty days from the entry of the order to take the bill pro confesso, and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of the defendant.^ The existing rules of the Chancery Division of the English court prescribe specificallj'- every step necessary to be taken under their practice, before and at the entry of the order for taking the bill pro confesso, and after it, up to and including the final decree. Some things are required by those rules which are not necessary in our courts. Here the order that the plaintiff's bill may be taken for confessed is entered as of course ; there notice of a motion to have the bill so taken must be given, and the cause set down for hearing on such motion.^ The rule in the New York Court of Chancery, as stated by Chancellor Kent, was, that where a bill was taken pro confesso the plaintiff could not thereupon take a decree, but must set the cause down for a hearing in term, although no notice of the hearing to the defendant was required.^ And this, so far as notice to the defendant is concerned, is apparently the rule in this State at the present time. In a recent case the court say, in substance, that after the order that a bill be taken pro confesso is entered the defendant has lost his standing in court, and is not entitled to notice of its further proceedings.* In New Jersey a decree pro confesso may be taken at any time after the time limited for the plea, answer, or demurrer, if the defendant has failed to plead, etc.^ 1 Ch. Rule 19. 2 Brown v. Home, 8 Beav. 607. ' Rose V. Woodruff, 4 Johns. Ch. 547; Cainea v. Fisher, 1 Johns. Ch. 8. See New York Code, §§ 143, 246, 247. * Russell ». Lathrop, 122 Mass. 302 ; Pendleton v. Evans, 4 Wash. C. C. 336. s Oakley v. O'Neill, 1 Green Ch. 287. TAKING THE BILL PEO CONFESSO. 179 The practice in the English courts of entering an appear- ance for an absent defendant, or for one who does not answer, before proceeding to take his bill pro confesso, does not prevail in the courts in this country.^ Whether the court will order the bill to be taken pro confesso immediately, or at some future time, will depend upon the circumstances of each case.^ The English rules also prescribe the course of pro- ceedings where the defendant is in custody upon a writ of attachment for want of an answer, and where process of sequestration has been issued against a corporation aggre- gate for the same cause.^ Where the Attorney General is defendant, if he fails to answer within a reasonable time, an order may be obtained that he put in an answer within a time named in the order, and in default of his doing so the bill may be taken as against him pro confesso.^ An insufficient answer may be treated as no answer, and the whole bill taken pro confesso.^ In the case last cited Chancellor Kent, after stating the rule, that if after appearance the defendant will not answer, but stands out to a contempt, the bill will be taken pro con- fesso, alludes to the English practice of resorting in such cases to the process of attachment and sequestration, and then adds : " I do not, however, perceive any good reason for going to this length, before the rule for taking the bill pro confesso is granted. If an answer be essential, as in bills of discovery, an answer must be compelled by the process for contempt ; but there is no need of this when the bill is for relief and states sufficient ground. All that is wanting is the admission of the facts ; and if the defendant has appeared, 1 See for the English practice Grover & Baker Sewing Machine Co. v. Millard, 8 Jur. n. s. 713; Buttler v. Mathews, 19 Beav. 549. '^ Courage v. Wardell, 4 Hare, 481. ' Brickwood v. Harvey, 8 Sim. 201. * Groom v. The Attorney General, 9 Sim. 325. 6 Caines v. Fisher, 1 Johns. Ch. 8. 180 EQUITY PLEADINGS AND PRACTICE. and will not answer, he ought to be concluded in the same manner as he is by. a neglect to plead to a declaration at law." ^ And when he has been duly served with process and fails altogether to appear, why should not the same con- sequences follow as when he appears and afterwards fails to answer? That is the rule in actions at law. An important question arises in this connection, as to what the defendant is presumed to admit when the plaintiff's bill is taken as confessed. He can be held to have admitted only what is well pleaded or properly set forth in the bill. And if that does not contain suflSeient allegations to au- thorize a decree, no decree for the plaintiff will be granted.^ Chief Justice Gray, in giving the opinion of the court, says : " It is well settled by the highest authorities, that even when an order overruling a demurrer is followed by an order taking the bill for confessed, and referring the cause to a master for an account according to the prayer of the bill, neither is a final decree in any sense, but a mere interlocu- tory order in favor of the plaintiff, and on the return of the master's report the final decree maybe the other way." ^ The bill being taken for confessed admits the contract set forth in the bill, but the defendant may still dispute the amount of the plaintiff's claim.* Mr. Justice Bradley, giving the opinion of the court in the case cited below, says : " The true proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not 1 Caines v. Fisher, uhi supra. ^ Russell V. Lathrop, uhi supra ; Frow v. De La Vega, 15 Wall. 552 ; Atkins V. Faulkner, 11 Iowa, 326 ; Robinson v. Townshend, 3 Gill & J. 413. * Forbes v. Tuckerman, 115 Mass. 120. 4 Pendleton v. Evans, 4 Wash. C. C. 391. TAKING THE BILL PRO CONFESSO. 181 be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But no final decree will be entered against him during the continuance of the cause against the other defendants." ^ Is not the language of the learned judge in this case too broad and unqualified, when he says that a defendant against whom a bill has been taken for confessed cannot appear further in the cause in any way, nor adduce evidence, nor be heard at the final hearing? It certainly is in conflict with the current of authorities, both English and American, according to which a defendant thus defaulted may appear and contest the amount of the plaintiff's demand. And under the present English practice he may, waiving all ob- jections to the order for taking the bill fro confesso, appear and argue against the merits of the plaintiff's claim, and show, if he can, that the plaintiff is not, upon his bill un- answered, entitled to a decree against him. The practice of taking bills pro confesso is of comparatively recent origin. The plaintiff was, by the earlier practice, required to prove the substance of his bill, although the defendant did not appear or file any answer. The modern practice upon this subject is now very generally, if not universally, adopted by courts of equity; yet in actual administration there is considerable diversity in different jurisdictions, as has already been shown. The entering of an order that a bill be taken pro confesso is, in effect, a motion addressed to the court that the bill may be so taken. In some courts the motion is heard at once, and granted or refused; in others, the motion is not heard until after the lapse of a specified number of days ; in others still, a notice is required to be given to the defendant, if he is within the jurisdiction of the court, before the motion will be heard. The English Court of Chancery, while governed by the 1 Frow V. De La Vega, 15 Wall. 55i. 182 EQUITY PLEADINGS AND PBACTICB, circumstances in each case, does not ordinarily direct the bill to be taken for confessed immediately.^ It is sometimes said, as we have seen, that taking a bill pro cotifesso is equivalent to a default in an action at common law; and with proper qualifications this is true. In an action at law, if a liquidated sum is claimed in the declaration and the defendant suffer a default to be entered, judgment follows upon the default without any further hearing by the court. But if the demand be for unliqui- dated damages, and an assessment by the court or jury is necessary, the defendant, although defaulted, is entitled to be heard upon such assessment. So in a suit in equity, although the court may have ordered the bill to be taken for confessed, yet the defendant may appear before the mas- ter, if the case is referred to a master for an account, or before the court, if the hearing is before the court, and con- test the amount of the plaintiff's claim.^ But the plaintiff in such case will not be required to prove the contract upon which his bill is founded.^ Under an established order and rule of the Chancery Division of the English court, a defendant, against whom an order to take a bill pro confesso is made, may appear at the hearing of the cause ; and if he waives all objection to the order, he may be heard to argue the case upon the merits as stated in the bill. Such does not appear to have been the practice in our courts, and yet, if a defendant against whom a bill has been taken for confessed, may appear and contest the amount of the plaintiff's demand, — and since it has been held that the final decree may be against the plain- tiff, although the bill has been taken for confessed,* — why should not the defendant be allowed, after default in not 1 Courage v. Wardell, 9 Jur. 1055. ^ Clayton v. Chichester, 1 Craw. & Dix Ab. Cas. 64. ' Douglass V. Evans, 1 Tenn. 63. * Forbes v. Tuckerman, ubi supra. TAKING THE BILL PRO CONFESSO. 183 filing an answer, to appear and "argxie the case upon the merits, or want of merits," as stated in the bill? Not only interlocutory, but also final decrees, made upon bills taken for confessed, may be set aside upon motion and proper proof of surprise, or other good cause, and the defend- ant be allowed to answer and be heard upon the merits of the cause.^ But before such a motion is allowed, the nature of the defence should be clearly and fully stated which the defendant asks leave to make. In the case last cited, Chan- cellor Kent said : " I am now put in possession of the real defence, and, admitting all that is stated in the petition, I am of opinion that the purchase of the ticket [the subject matter of the suit] was a fraudulent speculation, undeserving of favor. I will not set aside a decree fairly and regularly obtained to let in such a defence." This practice in equity of setting aside decrees obtained upon bills taken for con- fessed, is the same as that which prevails in courts of common law, according to which defaults may be taken off and judg- ments vacated upon proper cause shown, and the defendant let in to make his answer and to try the cause upon its merits. This is only one of many illustrations, showing that suits at law and in equity are governed by the same general principles, and are designed to secure the same ultimate purpose, namely, justice between " party and party." And any system of practice that wastes itself upon technicalities deserves any other name rather than that of a system for the administration of justice.^ An amendment to a bill is to be treated as a continuation of the original bill, and as forming part of it; so that, if an original bill has been fully answered, and amendments are afterwards made, unless the defendant answers the amend- ments, the whole bill as amended may be taken fro covr 1 Miller v. Wright, 10 C. E. Green, 340; Parker v. Grant, 1 Johns. Ch. 630. 2 Williamson v. Sykes, 2 Beasley (N. J.) 182. 184 EQUITY PLEADINGS AND PKACTICE. fesso} And an order to take the bill pro confesso as to the amendments only will be irregular.^ If, after the prelimi- nary order for taking a bill pro confesso is passed, the de- fendant puts in an answer, that will not furnish a sufficient reason for setting the preliminary order aside.^ When a bill has been taken pro confesso, the court in making a decree against the defendant may, at the same time, order a receiver of the personal and real estate of the defendant to be appointed, and direct payment to be made out of such estate of such sums of money as at the hearing, or any subsequent stage of the cause, the plaintiff is shown to be entitled to. This is to be done if the decree is abso- lute. But if the decree is not absolute, such payment will not be directed except upon condition that the plaintiff will give securitj'- for restitution in case the court shall afterwards order restitution to be made. This is according to English practice.* Under certain English statutes, a bill taken for confessed may be read in any court of law or equity, as evidence of the facts, matters, and things therein stated, in the same manner as if such facts, &c. had been admitted to be true by the answer of the defendant. And it may be so read as evidence in behalf of all persons in whose favor the defend- ant's answer admitting the same facts would be evidence. The effect of taking a bill pro confesso is not the same in the courts of this country, as appears by cases already cited, and as may be made more evident by an examination of the cases cited below.^ 1 Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 589 ; Thomas v. Visitors Fred. Co. School, 7 Gill & Johns. (Md.) 369. ^ Weaver v. Livingstone, Hopk. Ch. 595 ; 2 Eq. Cas. Abr. 178. * James v. Cresswicke, 7 Sim. 143. * Lett V. Randall, 7 Jur. 1075; Torr ». Torr, Johns. 660. 5 Smith V. Trimble, 27 111. 152 ; Forbes v. Memphis R. R. Co., 2 Woods U. S. C. C. 323 ; McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Winham v. Crutcher, 3 Tenn. Ch. 666. TAKING THE BILL PRO CONFESSO. 185 Where there are two defendants jointly interested, and the bill is taken pro confesso against one of them, for want of appearance, and the other appears and disproves the plain- tiff's case, the bill will be dismissed as to both defendants.^ In this case Spencer, J., said: " It would be unreasonable to hold, that, because one of the defendants had made default, the plaintiff should have a decree even against him, when the court is satisfied, from the proofs offered by the other, that in fact the plaintiff is not entitled to a decree. It is a well settled principle of law, that, in actions upon contract, the plea of one defendant enures to the benefit of all; for the contract being entire, the plaintiff will succeed upon it against all or none." And the learned judge applied the same rule to a suit in equity. In the case last cited in the margin, Mr. Justice Bradley says : " If the court in such a case as this " (one of the defendants having been defaulted) " can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the other, then this absurdity would follow : there might be one decree of the court sustaining the charge of joint fraud com- mitted bj' the defendants ; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant's bill. The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants." 1 Clason V. Morris, 10 Johns. 537, 538 ; Smith v. Cunningham, 2 Tenn. Ch. 572 ; Frow v. De La Vega, 15 Wall. 552. CHAPTER XV. COSTS. The giving of costs in equity, when not regulated by stat- ute, is entirely discretionary. But the court, in the exercise of this discretion, is governed by deiinite and established principles ; and in awarding costs will take into consideration the circumstances of each particular case, including the in- tention and conduct of the parties, and the subject matter of the suit.i The rules which govern the action of the court in the matter of costs are: 1. Those upon which it acts in awarding the costs of suit to be paid by one party or the other ; and 2. The rules which regulate its action with regard to the payment of costs out of the subject matter of the litigation. In equity, as well as at law, the general rule as. to the payment of costs by parties is, that the prevailing party is entitled to costs, and the losing party must pay the costs of the litigation which he has made necessary. Wilde, J., in giving the opinion of the court, says : " In the exercise of this legal discretion, we must not lose sight of the general rule as to the taxation of costs, which ought not to be departed from unless equity clearly requires it ; for in courts of equity, as well as in courts of law, generally the prevailing party is entitled to costs. Prima facie the party who fails must pay costs ; and it depends on him to show the exist- ence of circumstances in a sufficient degree to displace- the 1 Millington v. Fox, 3 Mylne & Craig, 338, 353; Remnant v. Hood, 6 Jur. N. s. 1173 ; Saunders v. Frost, 5 Pick. 271 ; Stone v. Locke, 48 Maine, 426; Brooks v. Byam, 2 Story, 553. COSTS. 187 prima facie claim of costs." ^ Chancellor Kent stated the rule in substantially the same form : " As to costs on excep- tions, they are, like costs in all other cases in this court, subject to its discretion, and may be given or withheld, according to the exigency of the case, or they may be left to abide the event of the suit. But the general rule is, that, if the defendant submits to the exceptions, the plaintiff has his costs, and if they be referred, the plaintiff shall have the costs of the exceptions allowed, and the defendant his costs of the exceptions disallowed." ^ This is also the general rule, as to costs, adopted by the English Court of Chancery.^ There are many cases in which costs are awarded to a party, whatever may be the result of the suit, in consequence of the peculiar relation or character he sustains to the suit. As, for instance, where specific performance of a contract by the ancestor is decreed against the heir, to whom nothing has come by descent except the property in question, the costs will be charged to the plaintiff. Mortgagees are, as a general rule, entitled to their costs in suits for redemption by the mortgagor, although the mort- gagor is the prevailing party in the suit.* This rule is modified by statute in some of the States, as will be shown hereafter. A tender by the defendant of all that is due, and a refusal by the plaintiff, will have the same effect in equity as in suits at law, and the defendant will be entitled to his costs 1 Saunders v. Frost, 5 Pick. 272; Clark v. Keed, 11 Pick. 448. 2 Methodist Epis. Church v. Jaques, 1 Johns. Ch. 77. See Tomlinson V. Ward, 2 Conn. 396; Stone v. Lock, 48 Maine, 425 ; Bryant v. Russell, 23 Pick. 508. 2 Vancouver ». Bliss, 11 Ves. 458; Colburn v. Simms, 2 Hare, 562; Edelsten v. Edelsten, 1 DeG., J. & S. 203; Patch v. AVard, L. R. 3 Ch. App. 210; Sutphen v. Fowler, 9 Paige, 282; Dyer v. Potter, 2 Johns. Ch. 152. ' Detillin v. Gale, 7 Ves. 583; Pearce v. Morris, L. R. 5 Ch. App. 233; Danbury v. Robinson, 1 MoCarter (jS". J.) 324. 188 EQUITY PLEADIKGS AND PBACTICB. that have accrued after the tender was made.^ If a party insists upon the proof of facts well known to him, it has been held that he should pay the costs of such proof.^ A party introducing unfounded charges of fraud into the bill will be made to pay the costs occasioned thereby, though he may prevail in the suit.^ When the court comes to a decision upon a point of law which is contrary to a former decision, it will generally impose costs upon the party against whom it decides.* In cases of great novelty, it is said, the court ought not to give costs to either party .^ These are some of the many cases which show the manner in which the court exercises its discretion in awarding costs in equity suits. The decisions as to costs in all these cases will be found to rest substantially on the question as to which party has rendered the litigation necessary ; except in cases where costs are awarded to neither party, and in these cases the decision rests upon the ground that neither or both parties are in fault. Wherever an estate or fand is administered by the court, the costs of all necessary and proper parties will be ordered to be paid out of the fund. These general rules, as has already been stated, are, in different jurisdictions, modified by legislation or by the estab- lished rules of the courts. It will be impossible, within the limits allowed to the subject here, to show how these gen- eral principles or rules regulating the allowance of costs in equity have been affected by legislation and specific rules of court, except in our own State. In the examination of the practice now prevailing in this State as to awarding 1 Dan. Ch. Pr. (5th ed.) 1395-1397. 2 Grimes v. March, 3 A. K. Marsh. (Ky.) 367. ° Brinckerhoff v. Lansing, 4 Johns. Ch. 79. * Rose V. Calland, 5 Ves. 186. ^ Jones V. Mason, 5 Randolph (Va.) 577; Hoffman v. Skinner 5 Paige, 526. COSTS. 189 costs in equity, the inquiry will not be limited merely to the effect of legislation on that subject, but will show how the court has exercised the discretionary power which it still possesses. It is provided by our statutes, that, in suits in equity in which no provision is expressly made by law, the costs shall be wholly in the discretion of the court ; but no greater sum shall be taxed than is allowed for similar charges in suits at common law.^ This rule as to costs in equity suits was first enacted in the Revised Statutes.^ Before that, the allowance and taxation of costs in equity were regulated by an earlier statute, providing that in all suits in equity the subject of costs shall be wholly in the discretion of the court, provided that no greater fee or fees shall be taxed in any bill of costs than is prescribed for similar services in the general fee bill established by law.^ The distinction between the two statutes is, that by the former statute the only limitation upon the discretion of the court was as to the amount of costs. The court could allow no greater fee than was by statute allowed in actions at law for similar services. By the existing statutes the court has no discretionary authority upon the subject, where there is an express provision made by law as to the amount of costs and the party entitled thereto. When a plaintiff has brought a bill of interpleader properly and in good faith, he is allowed his costs.* In adjusting the controversy between defendants, the party whose claim is found groundless will be compelled to pay costs he has caused. Costs will not be allowed to the losing party to a bill of interpleader when the only cause of the suit is his unjust claim to the property in the hands of the plaintiff.^ 1 P. S. c. 198, § 17. 2 Rev. Sts. c. 121, § 20. 8 St. 1826, c. 109, § 5. See St. 1798, c. 77. * Richards v. Salter, 6 Johns. Ch. 445. 6 Cobb V. Rice, 130 Mass. 231. See Dan. Ch. Pr. (5th ed.) 1569, 1570. 190 EQUITY PLEADINGS AND PEACTICE. In a suit for the transfer of certain stock of a corpora- tion to the plaintiff, it appeared that the corporation could easily have satisfied itself of the truth of the facts, and of its obligation to make the transfer demanded, if it had been willing to examine the evidence, yet it absolutely refused to make any transfer whatever, except under a decree of the court. This was held to be unreasonable and vexatious con- duct, and the corporation was ordered to pay the costs, as its unreasonable refusal to transfer the stock had made the suit necessary.! The court will not give the plaintiff leave to discontinue without costs, although, if he had first discontinued his suit, and then asked to be released from the payment of costs, his request might have been granted.^ This decision is not in conflict with that of Clark v. Reed, uhi supra, as at first it may seem to be. In both cases it is assumed that the plaintiff acted in good faith, but the form in which the question of costs was presented to the court was different in the two cases. A trustee who has mingled the trust fund with his own property will not, in a suit brought by him to obtain a discharge from the further execution of the trust, be allowed costs out of the fund, and will be charged with the expense of taking the account.'* The expense of a view ordered by the court may be included in the costs of the suit.* This is in conformity with the statute as to the expense of a view in an action at law.^ There is in fact nothing in the terms of the statute to show that its provisions are limited to actions at law. Where there are several defendants one bill of costs may be' taxed, and where they answer severally, an additional sum 1 lasigi ». Chicago, Burlington, & Quincy K. R., 129 Mass. 49. 2 Whitten v. Whitten, 5 Cush. 42. s See 130 Mass. 331. * Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80. « P. S. c. 170, § 43. COSTS. 191 may be allowed to each for making his answer.^ Costs may be assessed ratably upon all the solvent members of a trading company in a suit for winding up the concern; those represented by a single solicitor to be allowed but one bill of costs.^ Upon a plea or demurrer being overruled or adjudged good, the party prevailing upon the question shall receive full costs from the time of filing of such plea or demurrer unless the court shall otherwise order.^ In suits in equity in which as to one or more of the defend- ants the plaintiff seeks merely for a discovery of facts material to his rights and interests in a pending or anticipated suit, and not for a decree against them, the court shall allow such defendants all reasonable costs, expenditures, and charges by them made or sustained, according to the usual course of proceedings in equity in like cases. Such allowance shall be made, notwithstanding any prayer in the plaintiff's suit for a decree against the defendants, if the court is satisfied that such prayer is frivolous, or a mere pretence, or not essentially connected with the subject matter of the discovery.* There is a class of cases in which costs will be allowed to neither party, as, for instance, where both parties were in fault.5 In case for specific performance, where the bill was dis- missed on an objection first made after the case was referred to a master, no costs were allowed to either party prior to the hearing before the master, but were allowed to the de- fendant after that time.^ On a bill to redeem which cannot 1 Clark V. Keed, 11 Pick. 446; Pratt v. Bacon, 11 Pick. 495; MiUer v. Lincoln, 6 Gray, 556. 2 Tyrrell v. Washburn, 6 Allen, 466. 8 Ch. Rule 6. See Adams v. Porter, 1 Cush. 170 ; 1 Met. 237. * P. S. c. 198, § 16; Wright v. Dame, 1 Met. 241. * See Clark v. Eeed, vbi supra, and Saunders v. Frost, 5 Pick. 272. « Park V. Johnson, 7 Allen, 378. 192 EQUITY PLEADINGS AND PEACTICE. be maintained without amendment, and where the defendant has wrongfully denied the plaintiff's right to redeem on any terms, costs were allowed to neither party.^ Several rules of court relating to costs, not hereinbefore referred to, are cited in the margin.^ There have been numerous cases before the court in which costs have been allowed out of the funds which were the sub- ject matter of the suits, as in case of a bill of interpleader ; ^ also the reasonable costs of parties to a suit brought to determine the party entitled to receive a legacy for charitable purposes;* or to determine the proper disposition of a re- mainder under a will;^ and costs in a suit concerning the administration of a trust may be allowed to all parties.® Upon bills brought by executors for instructions, costs have been allowed in numerous cases out of the estateJ In cases rendered necessary by an ambiguity in wills, costs have been allowed out of the general assets in the hands of the executor.^ If the ambiguity of a will renders it doubtful to which of two parties a legacy shall be paid, the costs as between solicitor and client of all parties to a bill of interpleader by the execu- tor are to be paid out of the general estate of the testator.^ On a bill of instructions prosecuted upon the claim of one legatee, which was clearly untenable, it was ordered that all the costs should be paid out of the share of that legatee.-^" In taxing costs for counsel fees to be paid out of a fund, the 1 Bartlett v. Johnson, 9 Allen, 530. 2 Ch. Rules 12, 16, 17, 18, 19, 20, 22, 35. ' Loring v. Thorndike, 5 Allen, 257; Towle v. Swasey, 106 Mass. 100. * Bliss V. Am. Bible Soc, 2 Allen, 384. 6 Abbott V. Bradstreet, 8 Allen, 587. ^ Kinmouth v. Brigham, 5 Allen, 280. ' See Wilcox v. Wilcox, 18 Allen, 256; Brooks v. Everett, Ibid. 457; Esty V. Clark, 101 Mass. 36. 8 Sawyer v. Baldwin, 20 Pick. 878; Deane v. Home for Aged Colored Women, 111 Mass. 132; Bowditcb v. Soltyk, 99 Mass. 141. » Morse v. Steams, 131 Mass. 391. " Mandell v. Green, 108 Mass. 277. COSTS. 193 court will refer, as a general guide, to the compensation usually paid to public officers for similar services.^ When a suit or proceeding is instituted in the name of the Commonwealth, on the relation, in behalf, or for the use of a private person, such person shall be liable for the costs to the same extent as if the suit or proceeding had been instituted in his own name.^ If a mortgagor without previous tender brings a suit for redemption, and it appears that anything is due on the mort- gage, the plaintiff shall pay the costs of the suit, unless it appears that the mortgagee when requested has unreasonably refused or neglected to render a just account of the amount due on the mortgage, or by his default has prevented the plaintiff from performing or tendering performance of the condition before the commencement of the suit. In all other cases the court may in its discretion award costs to either party.^ In a suit by a mortgagor to redeem, in which it appeared that the defendant had failed to render a true account, and the plaintiff had made no tender, costs were awarded to neither party.* So in a case where the plaintiff made no tender before suit, and the defendant's defence was held to be groundless, neither party recovered costs.^ The statute ^ in relation to costs in suits for redemption " embraces only two classes of cases. One is the case where the suit is brought without a previous tender, in which case the plaintiff as a general rule is to pay the defendant's costs. All other suits brought for redemption of mortgages come within the second class, in which it is left to the discretion 1 Frost V. Belmont, 6 Allen, 152. 2 P. S. c. 198, § 19. 8 P. S. c. 181, § 29. * Woodward v. Phillips, 14 Gray, 132. 6 Sewall V. SewaU, 130 Mass. 209. See Gen. Sts. c. 103, § 31 ; P. S. c. 172, § 42. P. S. c. 181, § 29. 13 194 EQUITY PLEADINGS AND PRACTICE. of the court to award costs to either party, as equity, may require." And in a case where the mortgagee in possession had rendered an untrue account, the court ordered him to pay the plaintiffs costs.^ 1 Montague v. Phillips, 16 Gray, 566; Miller v. Lincoln, 6 Gray, 556. CHAPTER XVI. SPECIFIC PERFORMANCE. This subject has been briefly considered under the heads of Jurisdiction and Parties, in Chapters I. and II. ; but its importance in the practical administration of equity requires a separate and further discussion. The application for the specific performance of a contract is addressed to the dis- cretion of the court, and does not proceed upon any absolute right in the party to the relief sought, even if he proves the contract as set forth in his bill ; for the plaintiff may have an adequate remedy at law, or there may be circumstances shown dehors the contract, making it inequitable for the court to enforce specific performance.^ But the discretion of the court in this class of cases is to be exercised judicially, and not arbitrarily, and is to be governed by fixed and settled rules of practice. The plaintiff must make out a clear case entitling him to relief in equity, or the court will leave him to his legal remedy. " Nothing is better established in this court," said Lord Hardwicke, speaking of contracts which the court would enforce, " than that every agreement of this kind ought to be certain, fair, and just in all its parts. If any of these ingredients are wanting in the case, the court will not decree specific performance." ^ In another case it was stated as a general proposition, to which the learned judge said he knew no limitation, that all agreements, in order to be executed in a court of equity, must be certain and fair, and must be framed in such manner as the » Clowes V. Higginson, 1 V. & B. 527. « Buxton V. Lister, S Atk. 386. 196 EQIHTY PLEADINGS AND PBACTICB. law requires. For it is in the discretion of the court whether it will decree a specific performance or not.^ It has some- times been assigned as a reason why the court would not carry an agreement into execution unless the contract was reasonable and fair in every particular, that courts of equity cannot mitigate damages upon the circumstances of the case, as a jury may do, but must decree the whole contract to be performed. " The exercise of this whole branch of equity jurisprudence respecting the rescission and specific performance of contract, is not a matter of right in either party ; but it is a matter of discretion in the court ; not indeed of arbitrary or capricious discretion, dependent upon the mere pleasure of the judge, but of that sound and reasonable discretion which governs itself, as far as it may, by general rules and principles, but at the same time which withholds or grants relief according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties." ^ All the cases agree, says Chancellor Kent,^ that a bill for specific performance of an agreement is an application to the sound judicial discretion or extraordinary jurisdiction of the court, which is not to be exercised where the plaintiff has so conducted himself as to destroy all claim to its interposition. In the exercise of that discretion, the court will consider the circumstances under which the agree- ment was obtained. The burden of proof is upon the plaintiff to bring his case within the rule which governs the court in the exercise of its discretionary power in granting or refusing a decree for specific performance. It will not be enough for him to show 1 Lord Walpole v. Lord Orford, 3 Ves. 420. See also Underwood v. Hitchoox, 1 Ves. Sen. 279; Franks v. Martin, 1 Eden, 323; Eastman V. Plumer, 46 N. H. 464; Lamare v. Dixon, L. R. 6 H. L. 414. 2 1 Story Eq. Jur. § 742. ' St. John V. Benedict, 6 Johns. Ch. 117; Quinn v. Koath, 37 Conn, 16. SPECIFIC PERPOKMAKCE. 197 that there was no such misrepresentation or fraud in procur- ing the contract as would constitute a valid defence at law to an action upon the contract ; for the court will refuse to enforce the contract by a decree for specific performance, if it appears the contract was obtained by misrepresentation, although the misrepresentation might not be sufiicient to avoid the contract at law.i But if the defendant relies upon fraud or misrepresentation as a ground of defence the burden is upon him to prove the fraud. Nor will the court decree specific performance where the result would be to impose great hardship on either party, even though the party seeking specific performance may be free from blame or impropriety of conduct.^ It has been held that want of mutuality in a contract furnishes sufQcient reason for withholding a decree for spe- cific performance, as where a contract for the sale of land was so drawn as to leave it optional with the vendor to convey the property or not at his pleasure.^ And, in the comprehensive language of Mr. Justice Story, it may be said that a court of equity will not decree specific performance in case of fraud or mistake ; or of hard and unconscionable bargains ; or where the decree would produce injustice ; or where it would compel the party to do an illegal or immoral act ; or where it would be against public policy ; or where it would involve a breach of trust; or where a perform- ance has become impossible ; and, generally, not in cases where such a decree would be inequitable under all the circumstances.* J Cadman v. Horner, 18 Ves. 10 ; Best v. Stow, 2 Sandf. Ch. 298 ; Pisher v. Worrall, 5 Watts & Serg. 478. 2 Gould V. Kemp, 2 Myl. & K. 308; Falcke v. Gray, 4 Drew. 660. ' Maynard v. Brown, 41 Mich. 298; Marble Co. v. Ripley, 10 Wall. 339. * 1 Story Eq. Jur. § 769 and notes. See Seton's Forms of Decrees, (1st Am. ed.) 646, etc.; Hood v. Oglander, 34 Beav. 513; Denny v. Han- cock, L. R. 6 Ch. App. 1 ; Baskcomb v. Beckwith, L. R. 8 Eq. Cas. 100. 198 EQUITY PLEADINGS AND PEACTICB. In an important cause, in which specific performance of a contract for the sale of real estate was sought, Chief Justice Shaw said : " In an application to a court of equity for specific performance, a decree for such performance is not a matter of strict right, on proof of the agreement ; but may be rebut- ted by showing that to require such an execution would be inequitable. A defendant, therefore, may not only show that the agreement is void by proof of duress or fraud, which would avoid it at law ; but he may also show that, without any gross laches of his own, he was led into a mistake, . . . though not by any representation of the other party, so that the agreement applied to a different subject from that which he understood at the time ; or that the bargain was hard, unequal, and oppressive, and would operate in a manner different from that which was in the contemplation of the parties when it was executed. In either of these cases equity will refuse to interfere, and will leave the claimant to his remedy at law." ^ But inadequacy of consideration, exorbitance of price, or improvidence in the contract, in the absence of fraud, ambign- ity, or mistake, will not as a general rule constitute a defence to a suit for specific performance.^ Of contracts with a penalty, when the sum mentioned is strictly a penalty, or where the sum is to be paid as liqui- dated damages, the court may order specific performance.^ But when the payment of the sum named may be made as a substitute for the performance of the contract, at the elec- tion of the payer, specific performance will not be decreed. Contracts within the statute of frauds must be proved by written evidence, or specific performance will not be decreed.* 1 "Western R. R. Corp. v. Babcook, 6 Met. 352. " Lee V. Kirby, 104 Mass. 427-430; Powers v. Mayo, 97 Mass. 186, 187; Haywood v. Cope, 25 Beav. 153. ^ Long V. Bowring, 83 Beav. 585. * Rossiter ». Miller, L. R. 5 Ch. Div. 656 ; Nesham v. Selby, L. R. 7 Ch. App. 406. SPECIFIC PEEi'OKMANCB. 199 But a parol contract within the statute of frauds, which has been in part performed, may be specifically enforced in equity.' As to what will constitute part performance, suffi- cient to take the agreement out of the statute of frauds, and authorize a court of equity to decree specific perform- ance, it is said in numerous cases that nothing is to be con- sidered as a part performance which does not put the party into a situation which is a fraud upon him unless the agree- ment is fully performed.2 If a party intends to rely upon the statute of frauds as a defence, he must set it up in his pleadings,^ the rule in this respect being the same as in actions at law. Failure of consideration, or want of capa- city on the part of the contracting party, will furnish valid reasons for refusing to decree specific performance. And the party plaintiff may lose his right to such decree by waiver or abandonment of the contract, and by laches in making his application to the court. Lapse of time may also defeat the plaintiff's right to relief; — 1. In cases where time was originally of the essence of the contract. 2. Where time, though not originally of the essence of the contract, has become so by subsequent acts of the parties. 3. Where the delay has been so great as to constitute laches, or evidence of the abandonment of the contract. But there are cases, where time does not run against the contract or party, or where the objection on the ground of delay has been waived, in which the court will decree performance.* In suits for the specific performance of contracts of sale, if there is any doubt respecting the validity of the vendor's title, 1 Potter V. Jacobs, 111 Mass. 32. See Glass v. Hvilbert, 102 Mass. 33-40. 2 1 Story Eq. Jur. § 761, and cases there cited; Jervis v. Berridge, L. K. 8 Ch. App. 351. 3 Lester i^. Foxcroft, 1 Lead. Cas. Eq. 768; Catling v. King, L. R. 5 Ch. Div. 660. * Fry on Sp. Perform. § 1044. See Barnard v. Lee, 97 Mass. 93-96. 200 EQUITY PLEADINGS AND PEACTICE, the court will not, in general, permit the question whether a good title can be made to be argued before it, in the first instance, but will direct an inquiry to be made by a master ■ as to the validity of the title. The order of inquiry is not whether the vendor could make a good title at the time he entered into the contract, but whether he can at the time of the inquiry make a good title.^ If the vendor can show a good title at any time before the result of the inquiry is certified to the court, it has been held that he will be entitled to a decree. But the title must be shown to be clearly good, and free from all incumbrance.^ " The principle is too well settled to require any reference to authority in support of it, that a vendor, to entitle himself to a specific execution of the contract, must be able to make a clear title. No court of chancery will force a doubtful title on the vendee."^ Our own court has said, that to main- tain a suit for specific performance the plaintiff must prove the title he offers is good beyond a reasonable doubt, and will not expose defendant to litigation.* If the vendee, after discovering the want of title in the vendor, reasonably ob- jects to the completion of the purchase, the court will refuse to decree specific performance, although the vendor may afterwards show he can perfect his title.^ Oral agreements as well as written agreements may be specifically enforced in cases not within the statute of frauds, where the party has not an adequate remedy at law.^ But the terms of the parol contract must be plainly and distinctly proved.' Courts of equity will not decree specific ' Langford v. Pitt, 2 P. Wms. 628; Parr v. Lovegrove, 4 Drew, 170. ' Morgan v. Morgan, 2 Wheat. 302. " Hepburn v. Auld, 5 Cranch, 275. * Sturtevant v. Jaques, 14 Allen, 526 ; Hayes v. Harmony Grove Cemetery, 108 Mass. 402; Park v. Johnson, 7 Allen, 383. See Young v. Kathbone, 1 C. E. Green, 224; Voorhees v. De Myer, 3 Sandf. Ch. 614. * Richmond v. Gray, 3 Allen, 26-31. « Somerby v. Buntin, 118 Mass. 287, and cases cited. » Price V. Salusbnry, 82 Beav. 446. SPECrPIO PEEFOEMANCE. 201 performance of contracts, the terms of which are such that the court cannot superintend their execution so as to secure full performance on the part of the plaintiff.^ In suits for specific performance the court will grant inter- locutory injunctions to restrain a party from making vexa- tious alienations of the subject matter of the suit pendente lite. Acting upon this principle, the court will interfere to restrain the transfer of stock, the payment of dividends, the sale of specific chattels, the conveyance of the legal title to real estate, the sale of mortgaged property by the mortga- gee, or the negotiating of a bill of exchange when it has been improperly obtained.^ Another subject often involved in suits for specific per- formance, is the allowance or assessment of damages. Under the present English practice, whenever the court has juris- diction to entertain an application for the specific perform- ance of any covenant, contract, or agreement, it may award damages to the party injured, either in addition to or in substitution for such specific performance, and the damages may be assessed in such manner as the court shall direct, either by the court itself, by a master, or by a jury.^ This practice is based on what is called Lord Cairnes's Act.* But before the passage of this act, the English Court of Chancery had authority to award damages in this class of cases." And a like jurisdiction has been exercised by courts of equity here, independent of any special legislation upon the subject.^ Where the defendant in a suit for specific performance disenables himself, pending the suit, to comply 1 South Wales Railway Co. v. Wythes, 1 Kay & J. 186; Ogden v. Fossick, 9 Jur. n. s. 288 ; Bruck v. Tucker, 42 Cal. 349. 2 Dan. Ch. Pr. (5th ed.) 16.52, and cases cited, 1656, 1665. ' Ibid. 1081, and cases cited; Jaques v. Millar, L. R. 6 Ch. Div. 153 ; Fritz V. Hobson, L. R. 14 Ch. Div. 557; Tamplin v. James, L. R. 15 Ch. Div. 222. * 21 & 22 Vic. 0. 27. 6 Todd V. Gee, 17 Ves. 273; Phelps v. Prothero, 7 DeG., M. & G. 722. 6 Andrews v. Brown, 3 Cush. 136; Pingree v. Coffin, 12 Gray, 316. 202 EQUITY PLEADINGS AND PEACTICE. with an order for specific relief, the court will proceed to afford relief by way of compelling compensation to be made ; and for that purpose will retain the biU, and determine the amount of such compensation, although its nature and meas- ure are precisely the same as the party would otherwise recover as damages in an action- at law.^ In the very able opinion of Wells, J., in the case last cited, he says there is equal ground in equity for applying the same rules, with the same qualifications, to all cases where a defect of title, right, or capacity in the defendant to fulfil his contract is developed by his answer, or in the course of the hearing, or upon reference of his title or capacity after an order of fulfilment.^ And a full citation of author- ities will be found in the course of his discussion, showing the practice on this subject in the courts of other States and in England. But will our courts award damages in addition to decree- ing specific performance ? If not, it would not be difficult to conceive many cases in which full justice would not be done. As, for instance, where a party has agreed to convey divi- dend-paying stocks, but refuses to execute the agreement, and the purchaser applies to the court for specific perform- ance, and the defendant during the pendency of the suit col- lects the dividends. "Why should not the plaintiff, in addition to a decree for performance of the agreement, also have an order that the defendant pay over to him the amount of the dividends so received by him ? In a case already cited, Turner, L. J., said: "That it is competent to this court to have ascertained the damages, I feel no doubt. It is the constant course of the court in cases betwen vendor and vendee, upon a sufficient case being made for the purpose, to direct an inquiry as to the deterioration of the estate pending the suit, and in so doing the court is in truth giving damages to the purchaser for the 1 Milkman v. Ordway, 106 Mass. 253. = Ibid. 253, 254. SPECIFIC PEEFOBMANCE. 203 loss which he has sustained by the contract not having been literally performed." ^ As to parties to suits for specific performance, the general rule is that parties to the contract are the necessary parties to the suit. But there are many cases in which other per- sons, interested in the subject matter of the suit, or whose rights may be affected by the decree therein, must be joined as parties plaintiff or defendant. Thus, it has been held that a person claiming by virtue of an antecedent agreement is a proper party to a suit by a pur- chaser for specific performance.^ When one of the parties to a contract for the sale of real estate dies before the execution of the contract, and his personal representative sues for a specific performance of the contract, all the heirs of the de- ceased party should be made parties plaintiff or defendant in the suit.^ In a suit to enforce the specific performance of a written contract to convey land, commenced after the death of the vendee, it was held that the widow of the vendee was properly joined as party plaintiff with his administrator and heirs, on the ground that she was entitled to dower in the lands the defendant had contracted to convey to her hus- band. Equity considering as done that which for a valid consideration the parties had agreed to do, the vendor held the estate in trust for the vendee, and the widow, being entitled to dower under our statutes in trust estates, was a proper party to the suit.* So where other parties are so interested in the subject of the contract that a complete title cannot be given without their concurrence, the vendor, in a suit demanding specific 1 Phelps V. Prothero, «5i supra. See King v. Hamilton, 4 Peters, 311. 2 West Midland Railway Co. v. Nixon, 1 H. & M. 176 ; Champion v. Brown, 6 Johns. Ch. 402-410. " Morgan v. Morgan, 2 Wheat. 297; Roberts v. Marchant, 1 Hare, 547; Edwards on Parties, 129-136. * Reed v. Whitney, 7 Gray, 533. 204 EQUITY PLEADINGS AND PEACTICB. performance of the contract, should make such persons par- ties to the suit.i In a suit for specific performance of a contract for the sale of land made by the complainant, president of a manufactur- ing company, for the benefit of the company and relating to its lands, the company is a necessary party .^ In a suit by a purchaser for specific performance, he may make a person, who has acquired an interest under the vendor with notice of the purchaser's rights, a co-defendant with the vendor.^ A person claiming a superior title to land in question under the person of whom performance is sought, may come in and assert his rights, as a decree might cast a cloud upon his title.^ Vice-Chancellor Wigram, in 1 Hare, 548, says : " The pur- chaser, when he is sued for the specific performance of his contract, is entitled to have the question of the validity of that contract decided (if it is to be decided) in the presence of the vendor, or, if the vendor should be dead, in the presence of all the parties who represent him; he is en- titled, after the death of the vendor, to the same benefit from the suit, by obtaining a decree conclusive on the question, as he would have had if the vendor were living. If the vendor had devised the estate contracted to be sold, it is plain that the suit could not have been brought without making the devisee a party. If the estate, instead of being devised, has been allowed to descend, it is equally necessary that the heir should be a party." 1 Wood V. White, 4 Mylne & C. 460, 483. 2 Nichols V. Williams, 7 C. B. Green, 63; Alexander v. Hoffman, 70 111. 114; Atkins v. Billings, 72 HI. 597. * Spence v. Hogg, 1 Collyer Ch. Cases, 225; Cutts v. Thodey, 13 Sim. 206 ; 6 Jur. 1027 ; Leuty v. Hillas, 2 DeG. & J. 110; 4 Jur. n. s. 1166; Stone ti. Buokner, 12 Smedes & M. 73. * Carter v. Mills, 30 Wis. (9 Jur.) 432. CHAPTER XVII. INJUNCTIONS. An injunction is appropriately called a preventive rather than a remedial process, — its office being to prevent an im- pending injury rather than to redress an injury already suf- fered. Injunctions with reference to duration are divided into two classes : interlocutory and perpetual. Interlocutory injunctions are granted pendente lite, to prevent irreparable injury, or to maintain the subject matters of the suit in statu quo. It is a mode by which the court preserves the property or rights in controversy with the least injury to all parties, untU, upon a full hearing of the parties on the merits of the cause, it can determine their respective rights. In- terlocutory injunctions are granted to continue until some specified time, or until the further order of the court. A perpetual injunction forms a part of the final decree after a hearing upon the merits, and by it the defendant is per- petually enjoined from asserting a right, or restrained from doing an act, which would be contrary to equity and good conscience. The cases in which a court of equity will interfere by injunction are nearly or quite as numerous as the matters over which it has jurisdiction. Injunctions may be granted in aid of bankruptcy proceedings ; to protect property given for religious or other public charitable purposes, and gener- ally to prevent the diversion of funds to other and different ) purposes from those designed by the donors ; and to restrain parties over whom the court has jurisdiction from prosecut- 206 EQUITY PLEADINGS AND PEACTICB. ing suits in other courts of this or any other State, or even in the courts of foreign states.^ In the last-named class of cases, the injunction is ad- dressed to the litigant parties, and not to the courts in ■which the proceedings to be enjoined may be pending. This injunction will, as a general rule, be granted against a party who, by fraud, accident, mistake, or otherwise, has obtained an advantage in a court of ordinary jurisdiction which will make that court an instrument of injustice.^ The following is the language of Chief Justice Marshall on this subject : " Without attempting to draw any precise rule to which courts of equity will advance, and which they can- not pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any act which clearly proves it to be against conscience to execute a judgment, and of which the party could not have availed himself in a court of law ; or of which he - might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery." 8 A court of equity will not issue an injunction to stay pro- ceedings at law when the rights of a party can be fully sustained in a court of law.* An injunction to stay pro- ; ceedings at law may be granted at any stage of the action : to stay the trial, to the entering of judgment, and even to stay proceedings under an execution.^ As the injunction in 1 Atty. Gen. v. Pearson, 3 Merivale, 353, 395; High on Injunctions; Seton's Decrees in Chancery. ^ Kand v. Redington, 18 N. H. 72 ; Briggs v. Law, 4 Johns. Ch. 22 ; Ross V. Harper, 99 Mass. 175 ; Briggs v. Shaw, 15 Vt. 78 ; Wright v. Eaton, 7 Wis. 499; Bradley v. Richardson, 2 Blatch. C. C. 843. * Marine Ins. Co. v. Hodgson, 7 Cranch, 382. .* Fuller V. Cadwell, 6 Allen, 503 ; Crane o. Bunnell, 10 Paige, 333. * Spurr V. Benedict, 99 Mass. 468-467; Arundell v. Phipps, 10 Ves. 139; Williams v. Roberts, 8 Hare, 315; Grant v. Lathrop, 23 N. H. 67; mjuNCTioNs, 207 all these cases is intended to operate only upon the party, and not upon the court where the proceedings are pending, it is immaterial whether that be a domestic or a foreign court. And it has upon this principle been held that the Supreme Court of Massachusetts has jurisdiction in equity to enjoin a citizen of that State from availing himself of an attach- ment of personal property in another State, in an action against his debtor, who is insolvent under the laws of Massa- chusetts, and thus preventing the property from coming into the hands of the assignee.^ Where common law courts have power to compel discovery and adjudicate upon equitable defences, although that does not abrogate the concurrent jurisdiction of the court of equity, yet if a party sets up an equitable defence at law, he will be held to have abandoned his right to apply to a court of equity for relief.^ By statute in Massachusetts equitable defences may be set up in actions at law. This is copied substantially from the English Procedure Act of 1854, c. 125, §§ 83-86. Dis- covery may also be obtained in actions at law.^ Injunctions are granted to prevent the committing of waste or trespass, — waste being the abuse or destructive use of property by one who, while not possessed of the absolute title thereto, has 3'et a right to its legitimate use ; trespass is injury to property by one who has no right to it. Equitable waste may be enjoined, at the suit of the remain- derman or reversioner against the tenant for life or years, and also at the suit of mortgagees against mortgagors in pos- session.* To warrant an injunction to prevent trespass, two conditions must conspire : first, the complainant's title must Kenyon v. Clarke, 2 R. I. 67. See Dan. Ch. Pr. (5th ed.) 1624-1626, and notes. 1 Dehon v. Foster, 4 Allen, 545 ; 7 Allen, 57. 2 Terrell v. Higgs, 1 DeG. & J. 388. See also Phelps v. Prothero, 7 DeG., M. & G. 722. 3 St. 1883, c. 223, § 14 ; P. S. c. 167, §§ 49-54. * Brady v. Waldron, 2 Johns. Ch. 148 ; Dan. Ch. Pr. (5th ed.) 1633. 1634. and notes ; Murdock's case, 2 Bland, 461. 208 EQUITY PLEADINGS AND PBACTICE. be established ; secondly, the injury complained of must he irreparable in its nature.^ Rights growing out of contracts, including partnership contract, may be protected, not only by decrees for specific performance, but also by injunction. The operations of corporate bodies, both private and public, are proper subjects of equity jurisdiction, and may be restrained and controlled by the orders and decrees of a court of equity. All acts ultra vires may be enjoined.^ Public officers may be re- strained by injunction from doing unauthorized acts. The powers of a court of equity may be invoked, by way of injunction, to protect the rights of .executors and adminis- trators, and also for the protection of the estate ; an injunc- tion is the appropriate remedy to restrain proceedings at law against sureties who have been discharged from their liabili- ties on account of their suretyship. Injunctions are often granted to secure the wife in the en- joyment of her separate property, as against her husband and his creditors; and also to prevent the husband, during the pendency of a divorce suit, from alienating his property. Creditors may be protected by injunction against the fraudu- lent acts of their debtors in the transfer of property for the purpose of delaying or hindering creditors in the collection of their debts. Private nuisances may be suppressed by injunction, at the suit of a private suitor ; ^ but public nuisances should be sup- pressed by indictment, or at the suit of the Attorney General by information. If an individual suffers peculiar and special damage from a public nuisance, he can maintain a suit for its abatement without making the Attorney General a party.* 1 Neale v. Cripps, 4 K. & J. 472; Cowper v. Baker, 17 Ves. 128. 2 Dan. Ch. Pr. (5th ed.) 1650. * Cadigan v. Brown, 120 Mass. 493; Ingraham ». Dunnell, 5 Met. 118; 5 Met. 8; 16 Pick. 525; Webber v. Gage, 39 N. H. 182; Bigelow u. Hartford Bridge, 14 Conn. 565. * Wood V. Sutcliffe, 2 Sim. n. s. 163. See Soltau v. DeHeld, Id. 133 ; Corning v. Lowerre, 6 Johns. Ch. 439. INJUNCTIONS. 209 Interim orders, as well as perpetual injunctions, may be granted against obstructing public roads or private ways, or permitting obstructions to remain tberein, and against obstruct- ing the natural flow of water, and against obstructing naviga- ble streams, and against the pollution of the water of rivers.^ Trade-marks may be protected by injunction, as copyrights and patents may be. An injunction against the infringement of trade-marks proceeds upon the ground that the infringe- ment is a fraud, both upon the proprietor, and also upon those who are induced to purchase goods bearing the counterfeit, in the belief that it is the genuine trade-mark.^ The United States courts, having exclusive jurisdiction of causes relating to patents and copyrights, can alone grant injunctions for their protection. But the common law rights which an author has in his manuscript prior to publication may be protected by injunctions from the State courts.^ These are some of the very numerous classes of cases in which the powers of courts of equity may be invoked, for the protection of rights or the prevention of wrongs, by means of injunctions. A fuller treatment of the subject so far as it relates to perpetual injunctions does not lie within the scope of this work. It is discussed in all its aspects and applications in the works cited in the margin.* Interlocutory injunctions are such as are granted at the commencement of a suit, or during its pendency, for the pur- pose of protecting the rights of parties until the merits of the cause can be determined upon a full and final hearing of all 1 Oldaker v. Hunt, 6 DeG., M. & G. 376 ; Atty. Gen. v. Luton Board of Health, 2 Jur. n. s. 180; Merrifield v. Lombard, 13 Allen, 16; Pen- nington V. Brinsop Hall Co., L. R. 5 Ch. Div. 769; Krehl v. Burrell, L. R. 7 Ch. Div. 552. 2 Ames V. King, 2 Gray, 379; Bowman v. Floyd, 3 Allen, 76. See P. S. c. 76, § 7. 8 Drone on the Law of Copyrights; Tompkins v. Halleck, 133 Mass. 32. ^ Eden on Injunctions; High on Injunctions; Kerr on Injunctions; Dan. Ch. PL & Pr. (5th Am. ed.) c. 36. 14 210 EQUITY PLEADINGS AND PEACTICB. parties in interest. This is an important branch of equity jurisdiction, and requires the utmost caution on the part of the court, or it will degenerate into an instrument of oppres- sion and great injustice. The right to interlocutory injunc- tion is not ex debito Justitice, but the application is addressed to the sound discretion of the court, to be guided according to the circumstances of the particular case ; and the injunc- tion should never be granted except in a clear case of irre- parable injur}', and with a full conviction on the part of the court of its urgent necessity, or that it is manifestly for the interest of parties to keep things as they are until the merits of the cause can be determined. If an interlocutory or pre- liminary injunction is to be asked for, the bill should be veri- fied by the oath of the complainant, or by some one having personal knowledge of the facts. And the court may require other evidence before granting the injunction. This is accord- ing to the very general practice in courts of equity, although it is said that the affidavit is not indispensable. The law and practice on this subject have been frequently stated in substantially the same form. Chancellor Bland, for- merly of the Maryland High Court of Chancery, uses the fol- lowing language : " In no case can an injunction be granted on the bill alone, unless it is verified by the affidavit of the plaintiff, or of one of the plaintiffs when there is more than one ; or, if the plaintiff be not a resident of the State, by the affidavit of some third person, who especially shows how he happened to have knowledge of the facts set forth in the bill, or by some other testimony sufficient to induce the court to credit the bill for the truth of its statements." ^ In the same case he declares that the granting or refusing an injunction is a matter resting in the sound discretion of a court of equity. It is one of the highest powers confided to the court, and its exercise ought, therefore, to be guarded with extreme caution, and the remedy applied only in clear cases. ^ Jones V. Magill, 1 Bland Ch. Rep. 180. See Pennsylvania v. Wheeling Bridge Co., 13 How. 562. INJUNCTIONS. 211 Lord Chancellor Cottenham said on this subject, " I have often expressed my opinion, that, unless a case depending on legal rights is very clear, it is the duty of the court to take care that the right be ascertained before it exercises its juris- diction by injunction." ^ " The principle which ought to guide the court and to limit its discretion in granting injunctions, at least where no special circumstances occur, is, that only such restraint shall be enforced as may suffice to stop the mischief complained of, and where it is to stay further injury, to keep things as they are for the present ; and the court will not grant the order in such form as indirectly to compel some positive act to be done by the party enjoined." ^ The court will not interfere by way of mandatory injunction, except in cases in which extreme, or at all events very serious, damage will arise from its interference being withheld.^ A bill praying for a preliminary injunction should be veri- fied by oath. In some jurisdictions there are positive rules requiring such verification.* In others the affidavits must be subjoined to the bill, and filed with it, and not afterwards. In New York, if the facts on which the injunction is asked for are not known to the plaintiff, he should state the facts in his bill as upon information, and annex the affidavit of the person from whom he obtained the information, or of some other person who can swear to the material facts.^ Where a writ of ne exeat, which is in effect an injunction, is asked for, an affidavit is necessary in support of the application.® 1 Spottiswoode v. Clark, 2 Phil. 156. ' Blakemore v. Glamorganshire Canal Navigation, 1 Myl. & K. 185. 8 Darrell v. Pritchard, 12 Jur. n. s. 18; Jerome t>. Ross, 7 Johns. Ch. 322. * Ch. Rules, 37 Maine, 581. 6 Campbell v. Morrison, 7 Paige, 157. See Barbour Ch. Pr. 617, Book m. c. 5; 1 Hofi. Ch. Pr. 425; High on Injunctions, § 36. « Rice V. Hale, 5 Cush. 238 ; Porter v. Spencer, 2 Johns. Ch. 169; Gemon v. Boecaline, 2 "Wash. C. C. 130. 212 EQUITY PLEADINGS AND PRACTICE. When a corporation aggregate is plaintiff in a bill asking for an injunction, the bill must be verified by some officer or agent of the corporation, and should be signed by him.^ Under our statute, the bill may be signed by the attorney of the party plaintiff.^ The rule in the English Court of Chan- cery now in force requires, when there are several plaintiffs, that all must join in the affidavit, unless satisfactory explana- tion be given for their non-joinder ; and when a corporation is plaintiff, the affidavit may be made by the secretary or other responsible officer.^ As a genei'al rule, injunctions are not granted upon an ex parte application, except in cases where the threatened mischief is imminent, and would be irremediable. But if the facts set forth in the bill and verified by affidavit are such as to justify the proceeding, an interim order will be passed, by which the defendant will be restrained until a day named ; the plaintiff having liberty in the mean time to serve notice upon the defendant, that on some day before the day named in the interim order he will move for an injunction. Upon granting such interim order, or a preliminary injunc- tion, the court may, and in some jurisdictions must, require the plaintiff to give an undertaking to abide the order of the court, as to any damages the defendant may suffer by reason of the interim order or injunction.* If, during the pendency of an action of waste, and in certain other cases, the plaintiff applies for an injunction against the defendant, the court, by special provisions of our statutes, is authorized, before granting the injunction, to re- quire the plaintiff to give the adverse party a bond, " condi- 1 Bank of Orleans v. Skinner, 9 Paige, 305. 2 St. 1883, c. 223, § 10. 8 Dan. Ch. Pr. (J)ih. ed.) 396. * Derby Bank v. Heath, 45 N. H. 524. See Merryfield v. Jones, 2 C«rtis, 306 ; Coltart v. Ham, 2 Tenn. Ch. 356 ; Harman v. Howe, 27 Gratt. 676; Ch. Rule 42, 2 McCarter, 522. INJUNCTIONS. 213 tioned that the applicant shall, if the injunction is dissolved^ pay all damages which may arise from the issuing thereof." ^ But this is only granting to the court, in the cases enumerated in the statutes, an authority whicha court of general equity jurisdiction may exercise in all cases, when called on to grant a preliminary injunction. This authority and its judicious exercise are founded upon manifest justice ; for the plaintiff, before any final determination of the merits of his cause, asks the court, in the exercise of its discretionary power, to restrain the defendant from the enjoyment of property or rights which, upon a full hearing, may be found to be clearly his, and it may be that by reason of the interrupted use of them he has sustained great damage. An injunction will not ordinarily be awarded upon an ex parte application; but only in cases where it is necessary to protect property from destruction, or where giving notice will defeat the very object of the application by allowing the defendant opportunity to complete the act before the time fixed for a hearing upon the application to have him enjoined. The practice in this State on this subject has not been uniform. " Such injunctions," says Shaw, C. J. " under the early practice of the court as a court of equity, were granted with considerable facility, on the ground that, being ex parte, it would not affect the merits on an ultimate hear- ing, and that, if its operation were considerably injurious to the respondents, it was competent for them to move to dis- solve it on affidavit, on application to any judge, upon short notice and cause shown. Somewhat more caution has been observed in this matter, latterly, on consideration that, if such an injunction is not necessary to prevent irreparable injury, or render the purpose of the suit unavailing, it may operate injuriously to interrupt an important enterprise, and because, after subpoena served, the respondent has notice of 1 P. S. c. 179, § 13; Wakefield v. Duke of Buccleugh, 11 Jur. n. s. 523. 214 EQUITY PLEADINGS AND PEACTICE. the suit, and proceeds at the peril of all consequences which may ensue." ^ The only well-established rule of court in this State on the subject of issuing injunctions is Chancery Rule 2, which provides that " No injunction or other pro- ceeding shall be ordered until the bill is filed, unless for good cause shown." Under this rule the practice of the judges has not been uniform as to requiring the filing of the bill, affidavits, and notice. It is, however, believed to be the very general practice now to require all these before granting a preliminary injunction, except in special cases. The court may award an injunction upon an ex parte application, and without notice, when the act sought to be restrained is such that, if allowed to proceed, it will result in the destruction of property ; or when giving notice will defeat the very pur- pose of the application, by giving the defendant time to complete the act before the return day of the notice. The United States courts were formerly forbidden by stat- ute to grant injunctions without notice.^ But the present practice in these courts is different.^ The application for an injunction should be made by written motion.* After service of subpoena and the appearance of a defend- ant, the general rule is that an injunction will not be granted without notice.* If the injury is complete at the time of the filing of the bill, equity will not take cognizance of the matter, the plaintiffs remedy being at law.^ An interlocutory injunction may be dissolved at any time before the hearing of the cause. The application for a dis- 1 Wing V. Fairhaven, 8 Cush. 363, 364. See Pennsylvania v. The Wheeling Bridge Co., 13 How. 578. 2 Perry v. Parker, 1 Wood. &M. 280; Poor v. Carleton, 3 Sumner, 73. 8 United States v. Dulnth, 1 Dill. 489 ; Yuengling v. Johnson, 1 Hughes, 607; Fanshawe v. Tracy, 4 Biss. 490. 4 Dan. Ch. Pr. (5th ed.) 1667. 6 Langham ». Great Northern Eailway Co., 1 DeG. & Sm. 497. But see Harrison v. Cockei-ell, 3 Merivale, 2. * Lawrence v. Austen, 11 Jur. n. s. 577. iNJimoTioNs. 215 solution of an injunction is made by motion, and notice thereof should be given to the adverse party.* The motion must be supported by evidence in answer to that upon which the injunction was obtained.^ If the injunction was obtained on a misstatement of the facts, the motion should be to discharge the order, not to dissolve the injunction.^ If the answer of the defendant fully denies the facts on which the plaintiffs equity rests, an interlocutory injunction previously granted may be dissolved.* An interlocutory injunction may be sus- pended, continued provisionally, or made perpetual at the hearing, according as the rights and equities of the parties shall then appear to demand.^ Any person who knowingly acts in contravention of an injunction will, upon proper proceedings had, be held guilty of contempt and be ordered to be committed. An order for committal is obtained upon motion ; but before such order will be made, notice of the motion must have been duly served upon the person alleged to be guilty of the contempt.^ The terms of the notice of motion should be that the party may stand committed to prison for breach of the injunction. If the breach was committed by a person not named in the writ or order, the notice of motion should be that he may be committed for knowingly aiding in the breach. On the day named in the notice, the motion for commitment should be made by counsel for the plaintiff, and that motion must be supported by affidavits of the due service of the notice, and that the party had notice of the injunction, and that he has committed a breach of it. The party alleging a contempt 1 Dan. Ch. Pr. (5th ed.) 1676, and note 7. * Poor V. Carleton, 3 Sumner, 73; Clum v. Brewer, 2 Curtis, 506.. 8 Angier v. May, 3 W. R. 330; Haight v. Lucia, 36 Wis. 355. * Dan. Ch. Pr. (5th ed.) 1677, note 4. 6 Ibid. 1680-1683. ' Schoonmaker v. Gillett, 3 Johns. Ch. 311 ; Androscoggin & Kennebec R. R. Co. V. Androscoggin R. R. Co., 49 Me. 392; Howe v. Willard, 40 Vt. 654; Angerstein v. Hunt, 6 Ves. 488. 216 EQUITY PLEADINGS AND PKACTICE. must prove it to the satisfaction of the court.^ At tlie hear- ing upon the motion, if the facts are disputed, a trial of the question of fact will, if necessary, be directed.^ 1 Magenuis ». Parkhurst, 3 H. W. Greea Ch. 433 ; Agar v. Kegenl's Canal Co., Coop. Sel. Gas. 77. 2 Dan. Ch. Pr. (5th ed.) 1078. CHAPTER XVIII. DISMISSING BILLS AND STAYING PEOCEEDINGS. " The plaintiff may set down the plea or demurrer to be argued, or take issue on the plea, within fifteen days from the time when the same is filed ; and, if he shall not do so, a decree dismissing the bill, with costs, may be entered upon motion, unless good cause appear to the contrary." ^ This rule alludes to only one of many grounds upon which bills may be dismissed otherwise than at the hearing. Be- fore the defendant has appeared, the plaintiff may obtain an order to dismiss the bill, as against him, without costs,^ or after appearance and before decree he may have his bill dismissed upon payment of the defendant's costs. But he cannot have an order to dismiss the bill in part, and pro- ceed with the residue.^ Nor can he have his bill dismissed as of course, if the defendant has acquired any right against the plaintiff in the cause.* If a bill has been filed in the name of a person without authority from him, and he wishes to get rid of the suit, he may move to have the bill taken off the file or dismissed.^ In such case, the solicitor who filed the bill without authority may be ordered to pay defendant's costs. After a decree or decretal order, and after an issue of fact has been tried and decided in the defendant's favor, the plain- 1 Mass. Ch. Rule 10. 2 Thompson v. Thompson, 7 Beav. 350. But see Betts v. Barton, 3 Jut. n. 8. 154. * Camden & Amboy R. R. Co. u. Stewart, 4 C. E. Green, 69. * Booth V. Leycester, 1 Keen, 247. 6 Crossley v. Crowther, 9 Hare, 384. 218 EQUITY PLEADINGS AND PKACTICE. tiff cannot move to have his bill dismissed, for all parties to the suit may be interested in the decree, and when the issue is decided upon trial in favor of the defendant, he may obtain an order for a formal dismissal of the bill, -which may be pleaded in bar of another suit for the same cause.^ After a ' decree, the order should be to stay further proceedings, not to dismiss the bill. A creditor filing a bill on behalf of him- self and other creditors cannot after decree dismiss the suit without the consent of other creditors who may be benefited by the decree.^ If the decree is merely interlocutory, the bill may upon motion be dismissed.^ If the defendant is ready to submit to the plaintiff's whole demand, and to pay costs, he may apply to the court to dismiss the bill or to stay further proceedings.* But if the plaintiff by his bill seeks discovery from the defendant, a motion to dismiss the bill will not be entertained, although the defendant submits to the plaintiff's prayer for relief, and to the payment of costs, until the defendant has fully answered the bill.^ Where the plaintiff has failed to pay the costs of a former suit for the same cause against the same defendant, the latter may on motion and notice obtain a stay of proceedings until the costs are paid, and if they are not paid within a time named in the order the second bill will stand dismissed.^ A bill may be dismissed on motion of the defendant, or 1 Carrington v. Holly, 1 Dickens, 280. 2 Lashly v. Hogg, H Ves. 602 ; Handf ord v. Storie, 2 Simons & Stu- art, 196. * Hall V. McPherson, 3 Bland (Md.) 529 ; Innes v. Lansing, 7 Paige, 583. See, for an exception to this rule, Gregorys. Spencer, 11 Beav. 143; Bluck V. Colnaghi, 9 Sim. 411 and note. * Hennet v. Luard, 12 Beav. 479 ; Orton v. Bainbridge, 22 L. J. Eq. 979 ; Penny v. Beavan, 7 Hare, 331; Wallis v. Wallis, 4 Drew. 458. 6 Stevens v. Brett, 12 W. R. 572. ® Lautour v. Holcombe, 10 Beav. 256; Simpson v. Brewster, 9 Paige, 245; Wilson v. Bates, 3 Mylne & Craig, 197. DISMISSING BILLS AND STAYING PROCEEDINGS. 219 by the court upon its own motion, for want of equity upon the face of the bill.^ A bill may be dismissed upon motion of the defendant, for want of prosecution. This motion must, in some of the States, be preceded by a rule to speed the cause.^ By the 16th Chancery Rule of our court, if the plaintiff does not reply, or file exceptions, or set down the case for hearing on the biU. and auswer within the time specified in the rule (one month), a decree may be entered for the dis- missal of the bill with costs. The present orders and rules in the English Court of Chancery contain numerous provis- ions for speeding the prosecution of equity causes, and for the dismissal of bills for want of prosecution.^ Where there has been an order to amend the bill by adding new parties, and the plaintiff fails to amend within the time specified, or amends but proceeds no further, the bill may be dismissed on the defendant's motion.* Although the cause may be at issue as to one of several defendants, yet if the plaintiff does not proceed against the others, so that such defendant can proceed to take testimony, he may move to dismiss the plaintiff's bill.^ But in such a case the defendant moving can only have the bill dismissed as against himself.^ In determining the question whether the bill shall be dis- missed with or without costs, the court only considers the conduct of the parties in the prosecution, and does not enter into the merits of the cause.'' 1 Hine v. New Haven, 40 Conn. 478; Quinn v. Leake, 1 Tenn. Ch. 67. 2 Hoxey v. Carey, 12 Geo. 534. 8 See Dan. Ch. Pr. (5th ed.) 803, 804. * Mitchel V. Lowndes, 2 Cox, 15; Dobede v. Edwards, 11 Sim. 454; Emerson v. Emerson, 12 Jur. 973. ^ Hastings v. Palmer, 1 Clarke Ch. 52 ; VermUyea v. Odell, 4 Paige, 121. « Ward V. Ward, 11 Beav. 162. ' Stagg V. Knowles, 3 Hare, 244. 220 EQUITY PLEADINGS AND PRACTICE. The order dismissing a bill for want of prosecution cannot be pleaded in bar of another suit for the same matter.^ In this case it appeared by the order that the case was not dismissed upon any consideration of its merits. But it has been held that, if a bill to redeem land from a mortgage, and requiring an answer under oath, is dismissed on the plaintiffs motion, and with the knowledge of the defendant, after the filing of the answer, and after the expiration of the time for filing the replication and taking testimony, the decree for the defendant is presumed to be upon the merits, and is an effect- ual bar to another suit for the same cause.^ In this case the bill was dismissed, without any words of restriction or quali- fication. And in another case, Chief Justice Shaw said: " The authorities, both in England and in this country, are decisive, that a general entry of 'bill dismissed,' with no words of qualification such as ' dismissed without prejudice,' or 'without prejudice to an action at law,' or the like, is conclusively presumed to be upon the merits, and is a final determination of the controversy." ^ Where a suit abates by the death of the plaintiff, or of one of several plaintiffs, the defendant may obtain an order that the legal representative or the surviving plaintiffs shall pro- ceed to revive the suit within a limited time, or that the bill shall be dismissed with costs.* Who the legal representative is that should revive the suit can be determined by consider- ing whether the suit relates to real or personal estate. If it relates to the former, then the heir should be the party to the bill of revivor ; if to the latter, then the executor or adminis- trator will be the proper party .^ In this State provision is made by statut«, and by a rule 1 Porter v. Vaughn, 26 Vt. 624. » Foote v. Gibbs, 1 Gray, 412. " Borrowscale v. Tuttle, 5 Allen, 377. * Norton v. White, 2 DeG., M. & G. 678; Pearce v. Wrigton, 24 Beav. 253. ' Price V. Berrington, 11 Beav. 90. DISMISSING BILLS AND STAYING PEOCEEDINGS. 221 of court, as will be remembered, that, when the circumstances of the case are such as to require a bill of revivor, the requi- site allegations may be made by way of amendment to the original bill, or the representative of a deceased parly may be summoned to prosecute or defend, in like manner as in a suit at law.^ If the plaintiff becomes bankrupt, the defendant may have an order that the suit shall be prosecuted by his assignee within a time named, or the bill stand dismissed without costs.2 If the plaintiff is suing both at law and in equity, at the same time, for the same cause, the defendant may obtain an order for the plaintiff to elect which he will prosecute, and he will not be allowed to proceed with both.^ In the case last cited. Chancellor Kent directed the following rule to be entered : " Ordered, that the plaintiff, by his counsel, forth- with elect and agree to stay his execution at law, in the said petition mentioned, during the continuance of the injunction heretofore issued in this cause, or that the said injunction be dissolved. And the said plaintiff, by his counsel, having declared before the Chancellor that he should not consent or elect to stay the execution at law, it is thereupon further ordered, that the said injunction be dissolved." In another case, the same Chancellor passed the following order : " Ordered, that the motion for dissolving the injunc- tion be denied, and that the plaintiff, within eight days after notice of this decretal order, elect whether he will proceed at law under the said judgment, or in this court in this suit ; and that, if he elects to proceed at law, the bill shall there- after stand dismissed with costs ; and if he elects to proceed 1 Chancery Rule 25; P. S. c. 165, § 19. 2 Fister v. Fisher, 6 Hare, 628; 5 Jur. n. 8. 904; Jackson v. Riga Rail- way, 28 Beav. 75; Boucicault v. Delafield, 10 Jur. n. 8. 1063. » Carlisle v. Cooper, 3 C. E. Green, 241; Livingstone v. Kane, 3 Johns. Ch. 224. 222 EQTJITT PLEADINGS AND PRACTICE. here, it is then further ordered, that he proceed no further by execution, or otherwise on the judgment, without the leave of this court first had and obtained." ^ The dismissal of the bill, in consequence of an election by the plaintiff to proceed at law, cannot be pleaded in bar of another suit for the same matter.^ 1 Kogers v. Vosburgh, 4 Johns. Ch. 84. * Countess of Plymouth o. Bladon, 2 Vernon, 32. CHAPTER XIX. EXECUTION AND CONTEMPT. EvEKT court of general jurisdiction possesses the power, by proper and legal process, to enforce its own orders, de- crees, and judgments. And among the processes which may- be employed to enforce the orders and decrees of a court of equity are the writs of attachment and sequestration. The writ of attachment issues against a person who has know- ingly violated an injunction or other decree of the court, and directs that he be arrested and committed, or brought before the court to answer for his contempt. The writ of sequestration authorizes the seizure and detention of the contemner's property until he clears his contempt, and until the further order of the court. A party may also be adjudged guilty of contempt for re- fusing to answer the plaintiff's bill or interrogatories, after he has been ordered by the court to answer, and he has had due notice of such order. A party affected by an injunction or restraining order cannot treat the order as a nullity, how- ever irregularly it may have been obtained, but he must obey it until it has been discharged upon proper motion .^ According to the present English practice, if the defendant does not answer within the prescribed time, 1st, an attach- ment may be issued against him ; 2d, he may be committed to prison, and brought to the bar of the court ; or, 3d, the plaintiff may file a traversing note, or proceed to have the bill taken "pro confe»»o against him. An attachment for want of an answer may issue upon the ex parte application of the plain- 1 Blate ». Blake, 7 Beav. 514; Russell v. East Anglian Railway Co., 3 Mac. & G. 104; Daw v. Eley, L. R. 3 Eq. 496. 224 EQUITY PLEADINGS AND PRACTICE. tiff, if ttere is reason to believe that the defendant means to abscond without answering the bill. The application should be supported by an affidavit of the grounds of the belief.^ If the plaintiff intends to insist upon an answer, he should move for an order that the defendant remain in custody until he answers the bill. The order that the defendant shall remain in custody will deprive the plaintiff of his right to have the bill taken pro confesso? If the defendant cannot be arrested on the writ of attach- ment, the plaintiff may then, if he elects so to do, apply for a writ of sequestration, or he may proceed to take the bill pro confesso. And this is the usual and better course, unless the plaintiff's case is such as to make an answer from the defendant necessary ; for the whole object of the two writs above named as mesne process is to compel an answer. And if, upon the bill being taken pro confesso, the decree to which the plaintiff will be entitled is equally effectual as upon a full answer from the defendant, the writ of sequestration may be reserved as a means of enforcing the final decree. If a corporation aggregate neglects or refuses to answer within the time limited for an answer, the plaintiff may have the writ of distringas ; and if this writ thrice repeated proves ineffectual, the plaintiff may have an order absolute for se- questration ; and at this stage the plaintiff may, as matter of course, move to have the bill taken pro confesso. Under our practice, as has been shown, where a defendant, whether a person or a corporation aggregate, fails to answer within the time prescribed by the rules of court, the plaintiff in these compulsor)' proceedings may at once enter an order to have the bill taken pro confesso. A party may be in contempt for non-payment of costs which he has been ordered to pay, and where there is a joint order for payment of costs by two or more persons, the order 1 Hazard v. Durant, 11 K. I. 195. 2 Potts V. Whitmore, 8 Beav. 317. EXECtTTION AND CONTEMPT. 225 is considered as joint and several ; and if one absconds or dies before the costs are paid, proceedings for enforcing the order against the others will be good.^ A writ of attachment may be issued against a party re- fusing to pay costs, after he has had due notice of the order to pay. If the person refusing to pay the costs is arrested on the writ of attachment, he is committed to prison ; and the person prosecuting the contempt may leave him there until he has cleared the contempt by paying the costs for which he was attached and the costs of the contempt. An attachment for non-performance of a decree is not a bailable process, and the person taken upon it must be com- mitted to prison and not suffered to go at large.^ But if a defendant is taken on an attachment for want of appearance or answer, he may give bail ; for the object of the arrest being only to compel an appearance or answer, this is equally well accomplished by detaining the person, or requiring him to give sufficient surety for his appearance or answer.-^ Where a corporation has been ordered to pay costs and refuses to do it, the course of proceeding to compel obe- dience to the order is by distringas and sequestration. The person prosecuting the contempt for non-paj^ment of costs does not, by resorting to these compulsory measures, lose any lien or right to set-off he may have, in respect of costs.* Where a plaintiff is in contempt for non-payment of costs in the suit, an order to stay proceedings until the costs have been received may be obtained by the defendant ; and also that, unless security be given within a time named, the bill shall be dismissed.^ Care should be taken to avoid all irregularity in the order or affidavit on which the writ of attachment issues, other- 1 Ex parte Bishop, 8 Ves. 333. ' Dan. Ch. Pr. (5th ed.) 1454, 1455. " Ibid., 468. * Roberts v. Ball, 3 Sm. & G. 168 ; O'Brien v. Lewis, 9 Jur. n. s. 620, 764. ^ Kennedy v. Edwards, 11 Jur. n. s. 153. 15 226 EQUITY PLEADINGS AND PRACTICE. wise it will be set aside.-^ The process of sequestration is a writ directed to certain persons named therein, authorizing them to enter upon the real estate of the party in contempt, and to receive the rents and profits thereof, and also to seize his personal property, and keep the same under sequestra- tion, until he has performed the required act and cleared his contempt.2 A chose in action, as well as other property of the disobedient person, is subject to sequestration to compel the payment of money under a decree of a court of equity .^ Wilde, J., in giving the opinion of the court in the case cited, says, " The principle " upon which a chose in action may be sequestrated to enforce obedience to a decree in equity " is the same on which a creditor's bill is sustained in favor of a judgment creditor at law, after his remedy there has been fully exhausted." The court has power to pass all orders that may be neces- sary, such as a sale of the property sequestrated ; * or to order tenants to attorn to the sequestrators.^ The court may also direct a writ of assistance to issue for the purpose of putting sequestrators in possession.^ A party in contempt will not be further heard in the cause until he has cleared his con- tempt.'^ There are some exceptions to, or qualifications of, this rule.^ That is, a party in contempt may be heard in op- position to any special application which the other side may make, upon notice duly served upon him; and where there is irregularity in the prosecution of the decree or order obtained under the contempt, the party, although in contempt for non- 1 Mackenzie v. Mackenzie, 5 DeG. & S. 338. " Ang. & Ames on Corp. § 670. 8 Grew 11. Breed, 12 Met. 369-371. * Shaw v. Wright, 8 Ves. 22. 5 Goldsmith v. Goldsmith, 5 Hare, 128. « Kershaw o. Thompson, 4 Johns. Ch. 613-617. ^ Futvoye v. Kennard, 7 Jur. n. s. 958; Rogers v. Patterson, 4 Paige, 450. 8 King V. Bryant, 3 M. & C. 191; Newton v. Ricketts, 11 Beav. 67; Everett v. Prythergch, 12 Sim. 363 ; Cattell o. Simons, 5 Beav. 396. EXECUTION AND CONTEMPT. 227 payment of costs, may appear and be heard at the taxation of costs ; he may also apply for the removal of scandal. When the matter involved in the proceedings for con- tempt is between the parties to the suit, the contemner may clear his contempt by performing the act he was required by the decree of the court to perform, for the benefit of the other party. As where the defendant is in contempt for want of appearance or answer, he may appear and answer, and pay or tender payment of the costs of the contempt.-' If the defendant is in actual custody, he cannot be discharged without an order of court.^ If a defendant, for the purpose of clearing his contempt, files an answer, he should at the same time obtain an order for his discharge on* payment of costs. ^ If the plaintiff ex- cepts to the answer, and it is adjudged insufficient, he will be entitled to resume the process for contempt.* But if the plaintiff accepts the answer, or takes a step in the cause, he thereby waives the contempt, and cannot renew the process.^ If a sole plaintiff dies, leaving a sole defendant in custody, the latter may, on his own motion supported by an affidavit of the facts, be discharged from prison.® An application for the discharge of process for irregiilarity must be made before the order is complied with, otherwise the irregularity will be considered as waived.'^ Contempts arising from a direct invasion of the prerog- atives or dignity of the court are dealt with in the same manner by courts of equity as by other courts, and they are not included in the present discussion. 1 Wilkin V. Nainby, 4 Hare, 473; Broughton ». Martyn, 4 Bro. C. C. 296; Green v. Thomson, 1 Simons & Stuart, 121. 2 Gray v. Campbell, 1 Russell & Mylne, 323. 8 Child V. Brabson, 2 Ves. Sen. 110. ^ Taylor v. Salmon, 3 Mylne & Craig, 109. ' Haynes v. Ball, 5 Beav. 140. See Best v. Gompertz, 2 Younge & Collyer, 582. « Terrell v. Souch, 4 Hare, 535. "> Anon., 3 Atkyn, 567. CHAPTER XX. RULE DAYS AND MOTIONS. " There shall be rule days on the first Monday of each month, in all the counties except Dukes County, for the re- turn of process and the entry of all proceedings and orders which may be taken at the rules." ^ That is the rule, but what proceedings and orders may he taken at the rules is left unexplained, and must be learned from other sources. This rule, as first established and pub- lished by the court, in 1836, read as follows : " Rules shall be held in the clerk's office on the first Monday of every month in the county of Suffolk, and on the first Monday of each alternate month in all other counties, for the purpose of entering all proceedings and orders which may be taken at the rules, and which are not taken or made in open court. The rules shall be held uuder the direction of the clerk, but either of the justices of the court may make or allow any special orders, in any cause, not inconsistent with the regulations herein prescribed, which shall be entered in the Rule Book, and take effect accordingly." ^ Upon the revision of the rules in 1870, the rule as it now stands was adopted. The indefiniteness of this rule has led to equally indefinite and doubtful practice in different counties. The rule may have been sufficient when the court had only a limited jurisdiction; but now, since its jurisdiction in equity has become general, would not a more comprehensive and specific rule for regulating practice on rule days be better ? The 19th Chancery Rule of the United States Courts pro- 1 Mass. Ch. Rule 3. " See 24 Pick. 410, 411. EULE DAYS AND MOTIONS. 229 vides that " All motions and applications in the clerk's office for the issuing of mesne and final process to en- force and execute decrees ; for filing bills, answers, pleas, demurrers, and other pleadings; for making amendments to bills and answers ; for taking bills pro confesso ; for filing exceptions, and for other proceedings in the clerk's office, which do not by special provision require any allow- ance or order of the court, or of any judge thereof, — shall be deemed motions and applications grantable of course by the clerk of the court. But the same may be suspended, or altered, or rescinded, by any judge of the court, upon special cause shown." By several rules of the Court of Chancery in New Jersey, it is provided that, if the respondent fails to answer, as re- quired by the rule, a petition for appeal, the appellant may enter a rule as of course, in vacation or term-time, with the clerk of the court, for the hearing of the appeal, and may bring on the same by giving and filing notice thereof ; and if an answer is filed, either party may enter a rule as of course for a hearing ; if the defendant does not join in error within the time named in the rule, the plaintiff may enter a rule of course, either in vacation or term-time, with the clerk of the court, setting down the cause to be argued ex parte; and after joinder in error, either party may enter a rule for a concilium with the clerk as of course, and notice the cause for argument ; and orders to assign errors, to join in error, to file petitions of appeal, may be made at any time by the clerk of course, with like effect and force as if entered by order of the court during its sessions. These rules are designed to expedite causes, and to bring them early to a final hearing and judgment. In the foregoing quotations from the rules of other courts, the term " motion of course," or " order of course," is frequently used. What is such an order ? An " order of course" is one which is granted whenever the court 230 EQUITY PLEADINGS AND PEACTICB. or officer authorized to grant it is certified of certain facts, required by the rules or practice of the courts, as the foun- dation of such order. And no opposition will be allowed to the motion of course for such order.^ But if the order has been obtained by any misrepresentation or suppression of material facts, it will be discharged on motion of the party affected by it.^ Now, if " all proceedings and orders which may be taken at the rules " include all motions and orders of course, we shall have some definite means of determining what may be done at the rules ; for there are numerous decisions of courts of equity in England and in this country showing when, and under what circumstances, " orders as of course " may be made. But it does not follow that all these orders may be made by the clerk, or other subordinate officer of the court, for while they may all be made " at rules," the application or motion therefor must in some cases be made to the court, or to some judge thereof. These applications are sometimes called interlocutory, and when made viva voce they are called motions; when in writing, they are called petitions.^ An " order of course " should be served immediately upon the party to be affected by it.* The service must be personal, if performance is to be enforced by process of contempt.^ But a special order may be obtained in certain cases for other than personal service.® A special motion is one which it is not a matter of course to grant, but which the court, exercising its discretion, may 1 Eyles V. "Ward, Moseley Eng. Ch. K. 255. 2 Brignall u. Whitehead, 30 Beav. 229 ; 8 Jur. n. s. 183 ; Cooper v. Lewis, 2 Phil. 178. ^ For distinction between petition and motion, see Bergen v. Jones, i Met. 876. * Church V. Marsh, 2 Hare, 652. 5 Dan. Ch. Pr. (5th ed.) 1043. ° Lorton v. Seaman, 9 Paige, 609. And see 4 Paige, 360 and 405. EULE DAYS AND MOTIONS. 231 grant or refuse.^ Notice of a motion should state the title of the cause in which it is to be made, should be properly- addressed to the party upon whom it is to be served, or his solicitor, and signed by the party himself, or his solicitor.^ It should also set forth the terms of the order to be asked for.^ I In a suit by the Attorney-General in behalf of relators, a motion must be made on his behalf, not theirs, for the}'^ have no right to be heard in the suit.* If the party to be notified of a motion is out of the juris- diction, leave must be obtained to make the service, and this may be procured on an ex •parte motion. By the 5th Chan- cery Eule of our court it is prescribed that, " When it shall appear that a defendant resides out of the Commonwealth, the clerk, on application of the plaintiff, at any time after the filing of the bill, shall enter an order requiring such de- fendant to appear and answer the plaintiff's bill." The order may be served on the defendant personally, or by publication in some newspaper ; and proof of the service is to be made by affidavit, or in such other manner as the court may order. An order will not be made upon a motion which will decide the merits of the cause, except upon consent of all parties in interest.^ An order will not be passed more extensive than that expressed in the notice. If a plaintiff amends his bill after he has given notice of a motion, he thereby waives his motion.^ When a motion on some interlocutory matter has been once heard and decided, it cannot be repeated, unless on new ground.^ 1 Dan. Ch. Pr. (5th ed.) 1593. 2 Salomon v. Sfcalman, 4 Beav, 243 ; Parker v. Francis, 9 Jur. 616. ' Jackson v. Stiles, 1 Cowen, 134, 135. * Atty. Gen. v. Wright, 3 Beav. 447. 6 Like V. Beresford, 3 Bro. C. C. 366; Ennor v. Barwell, 1 DeG., F. & J. 529. See Harris v. Fly, 7 Paige, 423; Ridgeley v. Inglehart, 3 Bland, 551. ^ London and Blackball R'y Co. v. Limehouse Dist., 3 K. & J. 123. ' Hofiman v. Livingstone, 1 Johns. Ch. 211. 232 EQUITY PLEADINGS AND PBACTICE. In tliis case, Chancellor Kent said, "The former motion on the same point was heard, discussed, and decided ; and there would be great vexation if the same motion can be repeated." A regular decree cannot be set aside on motion. In this case it was suggested by the Chancellor, that, when it is sought to set aside a decree on the ground of surprise and irregularity, the proper course would be by petition for a rehearing.^ An application to set aside a decree entered by default may be by motion.^ In this case, the motion was granted, but the injunction, which had been made perpetual in the decree by default, was continued until further order. Notice should be given to the opposite party of every motion to the court, in case he has appeared, when the motion relates to a matter pending in court, or when a final order is sought.^ Orders for time, and those of a like nature, furnish exceptions to this rule.* Under the present English practice, when an appeal is claimed from a decree made upon a motion, it must be done by petition of appeal.^ 1 Kadley v. Shaver, 1 Johns. Ch. 201. 2 Beekman v. Peck, 3 Johns. Ch. 416. ' Isnard v. Cazeaus, 1 Paige, 39. * Hart V. Small, 4 Paige, 551. 6 Baxendale v. MoMurray, L. R. 2 Ch. Ap. 790. CHAPTER XXI. EECEIVERS. CoTlETS of equity may appoint receivers to receive the rents and profits of real estate, and to take possession of or collect personal estate, pending the suit in which these may be in controversy. Such receivers are appointed in cases where, in the opinion of the court, the appointment becomes necessary to secure the property in litigation for, and its final distribution among, those to whom it rightfully belongs. To accomplish these purposes, " Courts of equity interfere some- times by the appointment of a receiver to receive rents or other income, sometimes by an order to pay a pecuniary fund into court, sometimes by directing security to be given, or money to be paid over, and sometimes by the mere issuing of an injunction, or other remedial process ; thus adapting their relief to the precise nature of the particular case, and the remedial justice required by it."^ Each and all of these proceedings are designed to accomplish the same purpose ; namely, to preserve the subject matter of litigation pendente lite, so that it will be in the power of the court, upon the final decree in the suit, to order the property to be disposed of according to the rights and priorities of the parties entitled thereto. No lien is created upon the property, nor any change in its title effected, by its being taken possession of by a receiver under the order of the court.^ The appointment of receivers is a matter resting in the discretion of the court. This discretion is to be exercised in 1 Story Eq. Jur. §§ 826, 827. ^ Ellis V. Boston, Hartford, & Erie R. R. Co., 107 Mass. 28. 234 EQUITY PLEADINGS AND PRACTICE. view of all the circumstances in each particular case, and the application for the appointment of a receiver will be gi-anted or refused according to the view the court may take of the benefits or disadvantages likely to result from such appoint- ment. If there is much doubt as to the applicant's right to a final decree, the court will be justified in rejecting the application .1 The property in the possession of the receiver is regarded as being in the custody of the court. The receiver acts under the supervision of the court, and is entitled to its pro- tection.2 It is the general rule to require a receiver, before entering upon the discharge of his duties under the appoint- ment, to give a sufficient bond for the faithful performance of his trust. When the receiver is appointed without salary, or upon agreement of the parties in interest, and they ask that he may not be required to give security, the bond may be dispensed with.' It has been held to be a general rule, that a receiver would not be appointed in a case where the equities of the plaintiff's bill are fully denied by the sworn answer of the defendant ; * and if, before the defendant answers, a re- ceiver has been appointed, he will be discharged upon the com- ing in of the answer denying the equities of the bill.^ How will this rule be affected by the recent act of our Legislature, which provides that the answer shall not be sworn to, except in cases of bills for discovery only ? ® The question, which has been much discussed in other jurisdictions, as to whether an appeal lies from an interlocutory order appointing or re- fusing to appoint a receiver, would seem to be conclusively 1 Owen V. Homan, 3 Mao. & G. 411. * Hewettp. Adams, 54 Maine, 214; Cammaokt). Johnson, 1 Green Ch. 173; Hooper v. Winston, 24 111. 353. * Manners v. Furze, 11 Beav. 30; Gardner v. Blane, 1 Hare, 381." * See Thompsen v. Diffenderfer, 1 Md. Ch. 480; Henn v. Walsh, 2 Edw. Ch. 129; Callahan v. Shaw, 19 Iowa, 183. « Voshell V. Hynson, 26 Md. 83. » St. 1883, c. 223, § 10. KECEIVEES. 235 settled in this State, by the statute giving a right of appeal from all interlocutory decrees by a single justice.^ But the appeal will not suspend the authority of the receiver during the pendency of the appeal.^ A receiver will not be appointed at the suit of creditors to take possession of property of their debtor which cannot be lawfully levied upon to satisfy a judgment against him.^ Nor will a receiver be appointed when the property is of such a nature that the court cannot put him in possession of it.* Receivers are most frequently appointed in cases involving the rights of parties having only equitable interests in the property which is the subject of the litigation ; as in the case of second mortgagees, or other equitable creditors having only equitable estates. If the first mortgagee is in possession of the mortgaged estates taking the rents and profits, a receiver will not ordinarily be appointed, so long as anything remains due on his mortgage." But if the party applying for a re- ceiver will offer and pay the mortgagee in possession the amount he claims to be due on his mortgage, a receiver may be appointed.^ Although the court " interferes by appointing a receiver, against the legal title, with reluctance," yet in case of " fraud clearly proved, and imminent danger if the intermediate pos- session should not be taken under the care of the court," a receiver will be appointed.'^ In case of the misconduct or bankruptcy of an executor, or of any other person holding and dealing with property as a trustee, the court may be induced to appoint a receiver 1 P. S. c. 151, § 16. See Wright v. Wright, 13 Allen, 209. 2 Forbes v. Tuckerman, 115 Mass. 119. = See 2 Wils. Ch. 130. * Drewry v. Barnes, 3 Russ. 94. 6 Quinn v. Brittain, 3 Edw. Ch. 314. " Hays V. Cornelius, 3 Tenn. Ch. 461. See Quarrell v. Beckford, 13 Ves. 377. ' Lloyd V. Passingham, 16 Ves. 59; Landon v. Morris, 5 Sim. 247; Clark V. Dew, 1 Russell & Mylne, 103. 236 EQUITY PLEADINGS AND PEACTICE. to secure the rights of those beneficially interested in the property.^ Where the rights of third parties have intervened, such as innocent purchasers of the property in suit, the court will not appoint a receiver to take the property from the posses- sion of such purchasers. The refusal to make the appoint-, ment in such a case is placed upon the ground that the rights of bona fide purchasers ought not to be determined in the summary and collateral method of an order to surrender property so purchased to a receiver.^ When the same person is appointed receiver by different courts in different actions, the court making the first.appoint- ment will acquire exclusive control over the receiver and the fund, and he cannot be compelled to pay oyer the money or deliver up the property in his possession, in obedience to a judgment or decree of the court making the second appoint- ment.^ As between Federal and State courts the estabHshed practice is, that whichever court first acquires jurisdiction will be allowed to retain it, and its receiver will not be dis- turbed in the possession of the property which he holds under his appointment.* A person having no interest in the subject matter of the controversy, and one standing entirely indifferent as between the contending parties, should be selected as receiver. The choice is sometimes made directly by the court ; sometimes the matter is referred to a master.^ Eeceivers are rarely ap- pointed except in cases actually pending in court. There are exceptions to this rule, as in the case of infants and 1 Keyes v. Brush, 2 Paige, 311 ; Brodie v. Barry, 3 Merivale, 695 ; SoUory V. Leaver, L. R. 9 Eq. 22. " Levi V. Karriok, 13 Iowa, 844. ' O'Mahonyu. Belmont, 37 N. Y. Super. Ct. 380. See Nelson v. Conoer, 6 Rob. La. 339. « Bill V. New Albany R. R. Co., 2 Bissell, 390; Storm v. Waddell, 2 Sandf. Ch. 494 ; Spinning v. Ohio Life Ins. & Trust Co., 2 Disney, 336. 5 Garland v. Garland, 2 Ves. Jun. 137; Tharpe v. Tharpe, 12 Ves. 317. EECETVEKS. 237 lunatics.^ It is not absolutely essential that the bill should contain a prayer for such appointment.^ The order of ap- pointment should specifically state the property over which the receiver is appointed,^ Receivers are generally appointed in the first stages of a cause, although they may be, and sometimes are, appointed at the time of the final decree, and the appointment is made part of that decree.* The appointment will be made on ex parte application only when the immediate action of the court is essential to prevent irreparable injury, or the de- fendant has placed himself beyond the jurisdiction of the court.^ The court will, however, sometimes appoint a re- ceiver upon an ex parte application, where the giving of notice would defeat the very object to be secured by the ap- pointment. The court, in such a case, acts upon the same principle as it does in granting a preliminary injunction ex parte.^ The notice upon the adverse party of the application for a receiver should be a personal notice ordinarily, although this is not indispensable.'^ The circumstances requiring the summary action of the court in appointing a receiver ex parte should be stated in the bUl or motion, and should be supported by evidence.* Upon the appointment of receivers of rents and profits of real estate, tenants in possession of the premises will be required to attorn to the receiver, and thereafter pay rent 1 Dan. Ch. Pr. (5th Am. ed.) 1354 and 1361. 2 Ex parte Mountfort, 15 Ves. 445 ; Bowman v. Bell, 14 Sim. 392. 8 Crow V. Wood, 13 Beav. 271. < Duckworth v. TrafEord, 18 Ves. 283 ; Woodyatt v. Greley, 8 Sim. 180. 5 Sandford v. Sinclair, 8 Paige, 373; Triebert v. Burgess, 11 Md. 462 ; Caillard ». Caillard, 25 Beav. 512. ' Verplank v. Mercantile Ins. Co., 2 Paige, 438. ' Meadon v. Sealey, 6 Hare, 620; Devoe v. Ithaca & Owego R. K. Co., 5 Paige, 521. 8 Verplank v. Mercantile Ins. Co., uU supra. 238 EQUITY PLEADINGS AND PKACTICE. to him.i The receiver, being ordinarily entitled to posses- sion of the premises, may proceed to take possession, if he can do so peaceably and without action ; but he cannot prosecute an ejectment or other action against the tenant, except by leave of court previously obtained.^ Indeed, so little discretion is allowed to the receiver, that he can neither bring or defend an action in relation to the estate, nor let the estate, nor expend money upon it without the special leave of the court.^ Nor can an adverse claimant prosecute an ejectment or any other action against the receiver in pos- session, except by leave of court.* The adverse claimant may, however, upon application to the court, come in and be ex- amined, fro inter esse suo, and upon proving his title he may have the judgment of the court in his favor.^ If the prop- erty is in the hands of a third party claiming title to it, he may be made a party to the suit in which the appointment of the receiver is asked for, or the receiver after his appoint- ment may, under leave of court, proceed in an appropriate form of action to try the title.® Upon a bill for the dissolution of a partnership and wind- ing up of its affairs, a receiver may be appointed, if found to be necessary to protect the rights of all the parties in in- terest.^ But where the bill is by one party against his co- partner or copartners, " it seems that 'the court will not, in general, appoint a receiver of partnership effects, unless the plaintiff appears to be entitled to a dissolution."* The following statement, as quoted by the author named below, shows under what circumstances receivers may be 1 Albany City Bank v. Sehermerhorn, 9 Paige, 372. ^ Wynn v. Lord Newborough, 3 Bro. Ch. 88. » Story, Eq. Jur. § 388 a. * Parker v. Browning, 8 Paige, 388. 6 Angell V. Smith, 9 Ves. 338. ' Parker v. Browning, ubi supra. ' Innes v. Lansing, 7 Paige, 583. 8 Dan. Ch. Pr. (5th Am. ed.) 1727. EECEIVEKS. 239 appointed in partnership cases.^ " If any one of the partners seeks to exclude another from taking part in the concern which he is entitled to take, the court will grant a receiver ; but, generall}', in thus interfering between the parties, the court looks to a dissolution and general winding up of the afPairs. Where a dissolution is intended, or has already taken place, a court of equity will appoint a receiver, provided there has been some breach of the duty of a partner, or of the con- tract of partnership. Thus, if, in breach of moral obligation, one partner unjustly takes possession, and refuses to give security to his copartner for his share of the stock, money, and securities, or if he in any respect behaves unrighteously, against the interest of the other partner, a receiver will be appointed. So also, if, in breach of the contract of partner- ship, he carries on the trade with the partnership effects on his own separate account, after the dissolution, and thereby, or in any other manner, excludes his copartner from that share to which he is entitled, in winding up the concern, a receiver will be appointed." The possession of property by the receiver being that of the court, any interference by a third party with that pos- session, without first obtaining leave of the court, will be deemed a contempt of the court, and may be restrained by injunction, or by committing the guilty party for his con- tempt.^ The decree of the court appointing a receiver en- titles him to the protection of the court in the possession of property which he is directed by the decree to take into his custody.* The right of possession in the receiver relates to the time of his appointment, although he does not take actual posses- sion until some time after.* He takes possession subject to 1 Dan. Ch. Pr. (5th Am. ed.) 1728, and cases there cited. 2 Hills V. Parker, 111 Mass. 608, and cases cited therein; Angell v. Smith, 9 Ves. 335. 8 Hills V. Parker, uii supra; Paige v. Smith, 99 Mass. 395. * Rutter V. Tallis, 5 Sandf. 610. 240 EQUITY PLEADINGS AND PBACTICE. all existing liehs.^ He cannot be trusteed for the property in his possession. Nor can a creditor of the owner of the prop- erty be permitted to levy upon the property under a judg- ment obtained after the appointment of the receiver, but before he enters into actual possession of the property .^ In the case last cited, Gray, C. J., giving the opinion of the court, says : " We need not consider whether, by the description in this writ, the corporation, or the receivers of its property, or both, are alleged to be trustees of the principal defendant ; because we are of opinion that, assuming both to be duly summoned, neither can be charged ; not the corporation, be- cause by the decree of this court, made before the suing out of this writ, all its property had been put into the hands of receivers, and the corporation put under injunction against continuing business, and it had therefore no lawful authority to pay debts ; not the receivers, because the property which they held had been intrusted to and deposited with them, not by the act of the party, but by authority of the law, and the law allows no person^ so holding funds to be charged b)"- the trustee process, except executors and administrators, and as- signees under the insolvent act." But after an order has been made for the distribution of funds in the hands of receivers, they may be trusteed under our statutes.^ The court appointing a receiver has the power, and may in its discretion exercise it, to order the receiver to sell the property in his possession, both real and personal estate.* The sale should be made known to the court for its con- firmation, before the conveyance of the property is actually made.^ 1 Gere v. Dibble, 17 How. Pr. 31. 2 Ibid. ; Farmer's Bank v. Beaston, 7 Gill & Johnson, 421 ; Columbian Book Co. V. De Golyer, 115 Mass. 69. 8 P. S. 0. 183, § 24. * Crane v. Ford, Hopk. Ch. 114. 5 Koontz V. Northern Bank, 16 Wall. 196; Simmons v. Wood, 45 How. Pr. 268. RECEIVEES. 241 It has already been shown, that a receiver, before bringing an action to recover property included in the order for his appointment, should obtain the special leave of the court; and after such leave is granted, the question will arise as to whether he must sue in his own name, or in the name of the person having the legal right. While there is a conflict of opinion on this subject, it is said that the weight of authority supports the latter proposition.^ Undoubtedly the court may, by special order, authorize the receiver to maintain an action in his own name. Receivers appointed, under the statute of this State, to take possession of the assets of corporations, may sue and de- fend in the name of the corporation or otherwise.^ In some States, express authority to maintain actions in their own name is conferred upon receivers by express provisions of law.^ The authority of courts of equity to assume control over the management of the affairs of corporations, and the ap- pointment of receivers for that purpose, is not derived from the general equitable jurisdiction of these courts; but is derived from, and regulated by, legislation in the different States.* The extent of this authority and the manner of its exercise can only be learned by examining the statutes of each State ; for which the limits of this chapter afford no opportunity. The statutes of Massachusetts on the subject have already been cited. The authority in this State is ex- tended even to decreeing a dissolution of corporations after due notice to all parties interested and a proper hearing.^ The power to decree the dissolution of a corporation, the full court have said, " is one of great delicacy, and must be 1 Yeager v. Wallaoe, 44 Pa. 294; Baker v. Cooper, 57 Me. 388; Battle V. Davis, 66 N. C. 252. s P. S. c. 105, § 42; c. 118, § 110; c. 119, § 14; Colt v. Brown,. 12 Gray, 233 ; Holden v. Upton, 133 Mass. 177. 8 Sheldon v. Adams, 27 How. Pr. 179 ; Talmage v. Pell, 9 Paige, 410. * Folger V. Columbian Ins. Co., 99 Mass. 274. 6 P. S. 0. 105, § 41. 16 242 EQUITY PLEADINGS AND PEACTICE. exercised with extreme caution, ... No proceeding so radical as the destruction of the organization should be taken, unless, after careful examination, the court were fully satisfied, what- ever the disadvantages and losses attending such a step might be, that in no other way could the rights of all innocent stockholders be so well protected." ^ Receivers may be ap- pointed to take possession of the effects and property of an insolvent insurance company.^ One or more receivers may be appointed to take possession of the property and effects of a savings bank apparently insolvent, or whose condition is such as to render its further proceeding hazardous to the public, or to those having funds in its custody.^ Receivers may also be appointed to take possession of the property and effects of banks of discount and circulation.* Receivers may be appointed by a court of equity, to take possession of the property and franchises of a railway, and operate it for a limited time, under the orders of the court, for the benefit of the creditors of the road ; though it is said this is a power which the court will exercise with reluctance and the greatest caution.^ The court also has power to appoint receivers in behalf of mortgagees and bondholders of railroads. The equity jurisdiction of the court is often invoked in behalf of judgment creditors, by the appointment of receivers, when legal remedies prove insufficient, and the aid of a court of equity becomes necessary to protect the rights of such creditors.^ 1 Matter of Franklin Telegraph Co., 119 Mass. 448; Matter of New South Meeting-house in Boston, 13 Allen, 504. 2 P. S. c. 119, § 14. See Columbian Book Co. v. De Golyer, 115 Mass. 67; Commonwealth ». Hide and Leather Ins. Co., 119 Mass. 155. * P. S. c. 116, § 6; Commonwealth v. Reading Savings Bank, 133 Mass. 16. * P. S. c. 118, § 111; Commonwealth v. Phoenix Bank, 11 Met. 129; Atlas Bank v. Nahant Bank, 3 Met. 581. ' Milwaukee & Minnesota R. R. Co. v. Soutter, 2 Wall. 510 ; Davis v. Gray, 16 WaU. 203. ' High on Receivers, ch. 11, 12. EECBIVEES. 243 The general principle upon which courts of equity act in appointing receivers in partnership cases has been stated. To support an application in such cases, it must appear, by proof or admission of parties, that a partnership actually ex- ists or has existed, and that such a state of facts is shown as to justify a dissolution and a final winding up of its afPairs. The court will not undertake to conduct the business of a partnership by the appointment of a receiver, any longer than may be necessary to ascertain the rights of parties, and enable the court, upon a view of the merits of the cause, to make a final decree.^ A receiver of partnership property may be appointed upon the application of a creditor, or of one or more of the part- ners.2 An injunction may also be granted in connection with the appointment of a receiver, if the circumstances of the case are shown to be such as to make this essential to the preservation of the property and of the rights of all parties in interest.^ When property in the possession of trustees, executors, or administrators, is in danger of being wasted or diverted to other than the legitimate uses for which it is held in trust, a court of equity may appoint receivers ; and in making the appointment in this class of cases, the court will be governed by the same general principles as in other cases which have been the subject of discussion in this chapter ; the object in aU being the preservation of the property during the pen- dency of litigation, so that at the end of the controversy it may, by the order of the court, be distributed among those to whom it shall be found rightfully to belong. The compensation of a receiver is to be determined by the court, in the absence of any agreement between the parties ; and in a cause heard by the late Justice Wells, he adopted 1 Jackson ». De Forest, 14 How. Pr. 81 ; Walbert v. Harris, 2 Halst. Ch. 605; Allen v. Hawley, 6 Fla. 164. 2 Smith V. Lowe, 1 Edw. Ch. 33. « Williamson v. Wilson, 1 Bland, 428. 244 EQUITY PLEADINGS AND PKACTICB. the following rule of compensation, which was held by the full court to be the correct rule, viz. : " That the proper com- pensation of a receiver, as an officer of the court, in the absence of an agreement between the parties in relation thereto, should be limited to such an amount as would afford a reasonable compensation for the services required and rendered, to a person of ordinary standing and ability, com- petent for such duties and services, and should not be based upon the usages or rates of profit which prevail in any branch of commercial or other business, nor upon the special qualifica- tion, or standing of the person who may happen to perform the services." ^ For extraordinary trouble or expense necessarily incurred in the performance of his duties, the receiver may be allowed compensation beyond his regular salary .^ It has been held in the New York courts, that a receiver is not au- thorized to act as counsel in the matter of his trust, and there- by entitle himself to extra compensation for his professional services.^ A receiver, as has been stated,, derives all his authority from the court, and he may apply to the court, either directly or through the party conducting the proceedings, for directions.* And he may be at any time called upon by the court to render an account of his receipts and disbursements, and of his transactions with funds he holds in trust under his ap- pointment, and will be held responsible for losses arising from his wilful default. And when two persons were appointed as receivers to close up the affairs of a corporation, and one of them, misappropriated the funds by using them for his own profit, and the other receiver was guilty of gross neglect in the performance of his duties, both were held jointly liable for the balance jointly due upon stating their account.* 1 Grant v. Bryant, 101 Mass. 569 ; Jones v. Keen, 115 Mass. 181. 2 Williamson v. Wilson, 1 Bland, 433. ' Matter of the Bank of Niagara, 6 Paige, 213. * Parker v. Dunn, 8 Beav. 497. ^ Commonwealth v. Eagle Fire Ins. Co., 14 Allen, 344. KECEIVEKS. 245 Receivers are chargeable with interest on their accounts in the same manner as executors are, by making annual or semi- annual rests.^ And if a receiver improperly retains a balance in his hands, he will be required to pay interest.^ The pay- ment of money found to be due from the receiver may be enforced by process of contempt. Where one of two receivers had taken a large amount of the trust funds without order of court, and had appropriated the same to his own use, he was ordered to restore to his co- receiver the money so taken. Upon failing to comply with this order he was adjudged guilty of contempt, and sentenced to a term of imprisonment. From this order he appealed to the full court, which affirmed the decree of the single justice ; and Gray, C. J., in giving the opinion of the court,^ says : "The taking and spending by this receiver for his own use, whether with or without the concurrence or advice of the other receiver, of more than ten thousand dollars of the funds in his possession as an officer and representative of the court, was a gross breach of trust, tending to bring reproach, dis- grace, and distrust upon the administration of justice, and was a contempt of the authority of the court, and punishable, according to the law of the land and the established practice of all courts of similar jurisdiction, by fine or imprisonment at the discretion of the court. The object of an attachment and commitment for a gross contempt of this nature being not merely to compel restoration of the money illegally taken, but to punish the offender, the discretion of the court cannot be controlled by the fact of his not having the present means of repaying what he has abstracted." * 1 Potts V. Leighton, 15 Ves. 273. ^ Iq re Carter, 3 Paige, 146. ' Cartwrght's case, 114 Mass. 240. * For the form of a decree appointing receivers in the case of an insol- vent corporation, see 114 Mass. 231. And for forms of proceeding for contempt against one of the receivers for misappropriating trust funds, and neglecting to pay them over to his co-receiver upon the order of the court, see the same volume, pp. 233-238. 246 EQUITY PLEADINGS AND PEACTICB. In some cases, where a receiver is appointed, it becomes essential to the rights and interests of all parties that, in addition to the ordinary duties of a receiver, he should be invested with authority to carry on, under the direction of the court, for a longer or shorter time, the business or trade in which the partnership or corporation had been en- gaged, whose property he is to receive. When thus clothed with authority to receive property and superintend a trade or business, the receiver is called a manager, or receiver and manager. He is appointed in the same manner, and upon the same principles, as an ordinary receiver.^ A receiver will not be discharged until he has passed his final account, and paid over all balances found due from him as such receiver. And where a decree is made, before he has passed his final account, ordering him to do so, and pay over the funds in his hands, his discharge will be conditioned upon his compliance with such decree and order. If a receiver be- comes insolvent, he will be discharged for that reason, and ordered to deliver the property in his possession as receiver to his successor in the trust. A receiver may also be discharged if all those upon whose application the appointment was made have ceased to have any rights or interest in the subject matter of the suit in which such appointment was made. But if the appointment was made for the benefit of others as weU as for those apply- ing for it, the discharge will not be granted upon their ex parte petition or motion therefor. Notice of the motion or petition must first be given to all parties interested therein, so that they may have an opportunity to be heard before such motion or petition will be allowed.^ 1 Jefferys v. Smith, 1 Jacob & Walker's Eng. Ch. R. 298* Norway v. Kowe, 19 Ves. 159. 2 Bainbridge v. Blair, 3 Beav. 421. CHAPTER XXII. STATUTES AND DECISIONS. In this chapter will be found the statutes now in force relating to the equity jurisdiction of our courts, together with decisions of the full court arranged under the several chapters and sections of these statutes ; the whole exhibiting in brief the system of equity jurisdiction, pleading and prac- tice now prevailing in this Commonwealth. Section I. — Jurisdiction in Equity. " The Superior Court shall have original and concurrent jurisdiction with the Supreme Judicial Court in all. matters in which relief or discovery in equity is sought, with all the powers and authorities incident to such jurisdiction, and may issue all general and special writs and processes required in proceedings in equity to courts of inferior jurisdiction, corporations, and persons when necessary to secure justice and equity. " All the sections of chapter one hundred and fifty-one of the Public Statutes except sections one, twelve, twenty-seven, twenty-eight, thirty, thirty-one, and thirty-three shall apply, except as herein otherwise provided, to suits in equity in the Superior Court. In these sections so applied, and in this act, the phrase 'full court' shall mean the Supreme Judicial Court in banc." St. 1883, c. 223, §§ 1, 2. 1. P. S. c. 151, § 1, provides, that in addition to the juris- diction in equity otherwise conferred, the Supreme Judicial Court shall have original and exclusive jurisdiction of every process, whether by bill, writ, petition, or otherwise, in which 248 EQUITY PLEADINGS AND PEACTICB. relief in equity is prayed for, except when a different pro- vision is made. The second section of the same chapter provides that the court may hear and determine in equity all cases mentioned in the several clauses of the second section, when the par- ties have not a plain, adequate, and complete remedy at the common law. The fourth section reads as follows : " The court shall also have jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisprudence, and in respect of all such cases and matters shall be a court of general equity jurisdiction." From these provisions of the statutes it may be inferred that the Superior Court now has original and concurrent jurisdiction with the Supreme Judicial Court, not only in matters included under the several heads of equity enumer- ated in P. S. c. 151, but also in relation to other matters of equity jurisdiction conferred upon the Supreme Judicial Court otherwise than by the special provisions of that chap- ter of the Public Statutes. This construction of the statutes, if correct, will have an important bearing upon the question, yet to be considered, as to the proper limits of the jurisdiction in equity hereafter to be exercised by the Superior Court. How can the extent of that jurisdiction be ascertained ? What are the tests by which the question must be tried ? 2. P. S. c. 151, § 2. " The court may hear and determine in equity all cases hereafter mentioned, when the parties have not a plain, adequate, and complete remedy at law." It cannot escape the attention of the careful reader of our statutes, that every act of the Legislature enlarging the gen- eral equity jurisdiction of the court, except one, has contained the proviso, " when the parties have not a plain, adequate, and complete remedy at law," and the full court has applied this proviso as a test of its jurisdiction in all cases in equity, STATUTES AND DECISIONS. 249 whether they arise under any of the specific heads of equity mentioned in the statute above cited or not. The adequacy or inadequacy of the remedy at law is the test which is to determine the jurisdiction of the court in any given case.^ REDEMPTION AND FOEECLOSURB OF MORTGAGES. § 2, el. 1. " Suits for the redemption of mortgages or to foreclose the same." 1. The jurisdiction in equity in relation to the foreclosure of mortgages was well known in the courts at the time of the change from the Provincial to the State government. The provision for the redemption of mortgages was intro- duced very early, and the whole provision as it now stands, both for the redemption and foreclosure of mortgages, has been a law of the State for nearly a century. The cases arising under it are numerous and important. 2. In Eaton v. Green, 22 Pick. 526, it was held that the court had no jurisdiction in equity for the redemption .or foreclosure of equitable mortgages. That decision was under R. S. c. 81, § 8. But the language of that section in relation to the redemption and foreclosure of mortgages is identical with that of the clause above cited from the Public Statutes. 3. In Clarke v. Sibley, 13 Met. 210, the court say, " By R. S. c. 107, § 34, our jurisdiction in eases of mortgages is limited to those made by a common deed of mortgage, or such as are made by a conveyance, with a separate deed of defeasance, and it is a settled rule of construction of the statutes conferring equity jurisdiction that it is not to be extended beyond what is manifestly given." 4. In Boyden v. Partridge, 2 Gray, 190, it was held to be within the equity jurisdiction of the court, upon a bill to redeem a mortgage, to set aside a release of the equity of redemption obtained by fraud. This decision was before the passage of St. 1855, c. 194, which first gave the court direct 1 See Chapter *. for a fuller discussion of the subject of Jurisdiction. 250 EQUITY PLEADINGS AND PBACTICB. jurisdiction in cases of fraud. The decision was put upon the well-recognized rule in equity, that, where the court acquires jurisdiction of a cause for one purpose, it will retain it for all purposes necessary to the doing of complete justice in the whole case. In this case the question of fraud was regarded as incidental only to the main object of the bill, which was to redeem the mortgage ; and the court, having jurisdiction of the bill, as a bill to redeem, claimed and exercised the authority to set aside a conveyance made in fraud of the plaintiff's right of redemption. Trustees to whom a railroad company has conveyed its road and fran- chise by mortgage may maintain a bill in equity to fore- close the mortgage without making either bondholders or the cestui que trust parties to the suit. Shaw v. Norfolk County R. R. Co., 5 Gray, 162. 5. In Lowell v. Daniels, 2 Cush. 234, it was decided that the plaintiff could not maintain his bill in equity to foreclose a real estate mortgage, because he had a plain, adequate, and complete remedy at law. 6. In Boston & Fairhaven Iron Works v. Montague, 108 Mass. 254, the court say, that if the provision of the statute that the court may hear and determine in equitj' suits for the redemption of mortgages or to foreclose the same, where the parties have not a plain, adequate, and complete remedy at law, does not include mortgages of personal property as well as of real estate, it is clear that the provision that the court shall have full equity jurisdiction, according to the usages and practice of courts of equity, in all other cases where there is not a plain, adequate, and complete remedy at law, does include mortgages of personal as well as of real estate. 7. In Gordon v. Clapp, 111 Mass. 23, the decision of the court was that the plaintiffs remedy, if any, was under G. S. 0. 151, § 5 (P. S. c. 192, §§ 5, 6). The jurisdiction of this court in equity, says Justice Colt, in giving the opinion of the court, is limited by statutes to those cases where there is STATUTES AND DECISIONS. 251 not a plain, adequate, and complete remedy at law. Bills to redeem mortgages of personal property, when objection to jurisdiction is taken by demurrer, will not be entertained, therefore, unless a case is disclosed in the allegations, where, jfrom the nature of the property mortgaged, the peculiar relation of the parties, or the difficulty of ascertaining the amount to be paid or tendered, it is apparent that the mode specifically provided by statute for the redemption of such mortgages wiU not fully protect the mortgagor's rights. 8. In the case of Campbell v. Dearborn, 109 Mass. 130, the full court decided that a conveyance of real estate, absolute in form, could be shown by parol evidence to have been given as security for a loan, and that the grantor could maintain a bill in equity against the grantee, to redeem upon the same terms as if the conveyance had been a mortgage in form. The court say it does not violate the statute of frauds to admit parol evidence of the real agreement as an element in the proof of fraud, or other vice in the transaction, which is relied on to defeat the written instrument. The parol evi- dence is admitted to establish the equitable grounds for im- peaching the written instrument, and not for the purpose of setting up some other or different contract to be substituted in its place. The Supreme Court of the United States, in a similar case, go so far as to hold that, even in the absence of express deceit or fraudulent purpose at the time of taking the deed, and although the instrument of defeasance be omitted by design upon mutual confidence of the parties, yet if it is declared and proved that a loan on security was really intended, a court of equity will treat the transaction as a mortgage, and that the right of redemption exists. Russell V. Southard, 12 How. 139. 9. Under this clause the court has not jurisdiction of a bill for redemption by a railroad company against the Common- wealth. Troy & Greenfield R. R. Co. v. Commonwealth, 127 Mass. 46. 252 EQUITY PLEADINGS AKD PEACTICE. TKUSTS. § 2, cl. 2. " Suits and proceedings for enforcing and regu- lating the execution of trusts, whether the trusts relate to real or personal estate." 1. The first grant of jurisdiction in equity to the Supreme Judicial Court in matters of trust was by St. 1817, c. 87. This jurisdiction of the court over trusts extends to implied as well as to express trusts. Wright v. Dame, 22 Pick. 55. But it does not embrace all cases of implied trusts, such as arise out of the relations created by a pledge or mortgage of personal property, or a transfer of choses in action, or shares in a corporation to be held as collateral security for the pay- ment of money, or which might arise between principal and agent, or between bailor and bailee, unless the facts alleged show either the need of a discovery in support of the bill, or relief in some form peculiar to equity. Frue v. Loring, 120 Mass. 508, 509. In Hunt V. Maynard, 6 Pick. 489, it was held that a mort- gage deed did not per se create a trust, and that the court had no jurisdiction in equity under St. 1817, c. 87, of any implied trust arising out of such deed. See also Clarke v. Sibley, 13 Met. 214. 2. The court may appoint trustees to administer any lawful trust, although no express provision for such appointment is made by statute, or by the instrument creating the trust. Lawrence, Petitioner, 120 Mass. 412 ; Attorney General v. Barbour, 121 Mass. 673. In this last case it was held that it was within the equity jurisdiction of the court to remove as well as to appoint trustees under wills or other written in- struments, sufficient cause being shown for such action. See P. S. c. 141, § 9. 3. But the court has not power to enforce a trust under the will of a foreigner, proved and allowed in a foreign coun- try, no certified copy of such will having been filed in the STATUTES AND DECISIONS. 253 Protate Court in this State. Campbell v. Wallace, 10 Gray, 162. 4. In this Commonwealth the vendor of real estate by an absolute deed has no lien thereon for the uupaid bal- ance of the purchase money, in the absence of a written agreement. Ahrend v. Odiorne, 118 Mass. 261. The court in this case say that the theory that a trust arises out of the unconscientiousness of the purchaser (in refusing to pay the piu'chase money) would construe the non-perform- ance of every promise made in consideration of a conveyance of property to the promisor into a breach of trust ; and would attach the trust, not merely to the purchase money which the vendee agreed to pay, but to the land which he never agreed to hold for the benefit of the supposed cestui que trust, the vendor. 5. A pretty full discussion of the subject of the equity jurisdiction and powers of the court in relation to public charities will be found in the three following cases : Harvard College V. Society for Promoting Theological Education, 3 Gray, 286 ; Drury v. Natick, 10 Allen, 169 ; Jackson v. Phil- lips, 14 Allen, 539. The first of these cases was a bill in equity asking that certain trusts held by the plaintiffs might be transfeiTed to the defendant society, and the plaintiffs reheved from any further responsibility in relation thereto. In the course of the opinion of the full court, the doctrine of cy prh is considered, and the cases reviewed, showing that the doctrine of the English Court of Chancery, as to executing the general intent of a testator ci/ pres, is much broader than any that has been adopted in the American courts ; but in that court the doctrine is applied in giving a new direction to a charity only when it becomes necessary to do so to pre- vent the charity failing, because it cannot be applied agreea- bly to the literal intention of the donor ; and that there is no power in a court of chancery to alter the foundation of the institution named by the donor, with a view to any superior 254 EQUITY PLEADINGS AND PEACTICE. benefit which might arise from an institution of a different nature. And in this particular case, as there was no failure shown of the charity of the precise kind indicated by the terms of the gift, and no accumulation of funds beyond the needs of the specific charity, making it necessary for the trustees to seek the direction of the court to apply the sur- plus ey prhs, the bill was dismissed with this declaration : " A contrary decision would furnish a precedent dangerous to the perpetuity and sacredness of all our great public charities, leaving the question of their management and supervision subject to change with every fluctuation of popular opinion as to what may be the more expedient and useful mode of administering them." A disposition in some courts, in more recent times, has been shown to give less heed to the sacredness of public charities than was done in this case. In the case of Drury et al. v. Natick, it appears from the statement of facts that one Morse, by will, gave to the defendant town a fund for the purpose of founding a liter- ary institute for the benefit of all the inhabitants of the town ; that the town was forever to pay the expense of the care of the same. The town voted to accept the gift, and chose the plaintiffs trustees, who were to have the manage- ment of the institute or library, and they accepted the trust. Some months thereafter the town reconsidered the vote accepting the gift, and voted to decline its acceptance, and chose a committee to release all rights the town might have to the gift. It was held that this was a public charity, which, having once been accepted by the town as a charitable trust, could not be renounced ; that the fact that there was a burden annexed to the acceptance of this trust by the town did not alter its character as a charitable trust, nor did the failure on the part of the town to support that burden defeat the trust or work a forfeiture of the estate. It was also held STATUTES AND DECISIONS. 255 that trustees for charitable trusts need not give bonds, and that the trustees in this case were vested with a power coupled with an interest, which authorized them to ask the instructions of the court as to the proper discharge of their duty. The opinion of the court by Gray, J., in Jackson v. Phil- lips, contains an elaborate discussion of the law of public charities, with a full citation and analysis of cases. Among the numerous points decided are the following : that the Attorney General should be made a party to a bill by an executor for instructions as to the validity of a bequest to trustees appointed by will for a charitable purpose ; that a bequest to trustees to be expended by them for the prepa- ration and circulation of books, newspapers, &c., to create a public sentiment that will be likely to put an end to negro slavery in this country, was a legal charity before slavery was abolished in the United States ; that a bequest to trustees for the benefit of fugitive slaves was a legal char- ity ; that a bequest to trustees, to secure the passage of laws granting women the right to vote, to hold office, and all other civil rights enjoyed by men, is not a charity which will be upheld by a court of equity. In Story's Equity Jurisprudence it is said that this dis- tinction between bequests, one for the support of measures to influence public sentiment in favor of the abolition of slavery, the other for the purpose of obtaining a change in the laws so as to admit women to the elective franchise, seems rather slight, and to rest more upon the present public sentiment in regard to the importance of the objects proposed, than upon any obvious principle. This comment hardly does justice to the reasoning of the court in support of the distinction it made between the two bequests. " The question," says the court, " of the validity of these trusts is not to be determined by the opinion of individual judges or of the whole court as to their wisdom or 256 EQUITY PLEADINGS AND PEACTICE. policy, but by the established principles of law ; and does not depend merely upon their being for lawful objects, but upon their being of the peculiar nature which the law deems en- titled to extraordinary favor because it regards them as chari- table. Whether such an alteration of existing laws and frame of government [as would extend the elective franchise to women] would be wise and desirable, is a question upon which we cannot, sitting in a judicial capacity, properly ex- press any opinion. Our duty is limited to expounding the laws as they stand. And these laws do not recognize the purpose of overthrowing or changing them, in whole or in part, as a charitable use. This bequest differs from the others in aiming directly and exclusively to change the laws ; and its object cannot be accomplished without changing the Constitution also." Speaking of the bequest to promote the creation of a public sentiment against slavery, the court say, if this trust could not be executed according to the intention of the testator without tending to excite servile insurrec- tions in other States of the Union, it would have been unlaw- ful ; and a trust which looks solely to political agitation and to attempts to alter existing laws could not be recognized by the court as charitable. It was possible to abolish slavery by voluntary manumission brought about by a change in public sentiment, but extending the elective franchise to women can only be accomplished by a change both in the Constitu- tion and laws. 6. Equity will charge land, paid for in part with money stolen from a bank, with a trust in favor of the bank for the amount so stolen. National Mahaiwe Bank v. Barry, 125 Mass. 20. SPECIFIC PEEEOEMANCE. § 2, cl. 8. " Suits for the specific performance of written contracts, by and against either party to the contract, and his heirs, devisees, executors, administrators, and assigns." STATUTES AND DECISIONS. 257 1. The part of this clause following the words " written contracts" is not found in the corresponding clause of R. S. c. 81, § 8. This was first added in G. S. c. 113, § 2, cl. 3, and was taken in substance from R. S. c. 74, § 8. Courts are bound to regard the Statute of Frauds, in suits for specific performance, in the same manner as they are required to in actions at law. Glass v. Hulbert, 102 Mass. 28. And when that statute is relied on in defence to a bill for specific performance of a contract respecting the sale of land, it will be equally effectual as in an action at law. And the only remedy in equity in such cases would be by a rescission of the entire contract. Ahrend v. Odiorne, 118 Mass. 268. 2. In Reed et al. v. Whitney, 7 Gray, 583, which was an action of contract containing a prayer for relief in equity, under St. 1853, c. 371, to compel specific performance of a written contract to convey land to John Reed, since de- ceased, it was held that Mary Reed, widow of said John, was a proper party plaintiff, as she was, under the provisions of R. S. c. 74, §§ 8-14, entitled to dower in said land, and had the right to ask that the decree in the case be so shaped as to secure her a right to be endowed in the prem- ises, although they had not been conveyed to her husband in his lifetime, and he did not die seised thereof, and in fact had never been so seised. The court say that the clear intent of the statute was to place the power of the court, in enforcing such contract, upon the broadest principles of equity, and to consider as done that which, for a valid consideration, the parties had agreed to do ; and we cannot doubt that the right of the wife to dower in lands agreed to be purchased by the husband is within the letter as well as the spirit of the statute. 3. It would seem, says Shaw, C. J., in Sewall v. Eastern R. R. Co., 9 Cush. 10, to be a forced construction to hold that the vote of a board of directors in disposing of addi- 17 258 EQUITY PLEADINGS AND PEACTICB. tional shares, pursuant to an act of the Legislature, amongst its stockholders, offering to distribute the same proportion- ally to all those who would signify their desire to take them, would constitute a contract in writing between the corpo- ration and each of such stockholders. This was a bill for specific performance, and was by order of court dismissed ; not, however, on the specific ground that the plaintiff had a plain, adequate, and complete remedy at law, but because he had not, by bis bill, stated a case within the equity jurisdic- tion of the court. 4. The fact that a third party has a lien upon real estate under a building contract with a former owner will not deprive the court of the power to decree specific performance of a contract for the purchase of the estate, and which the purchaser refuses to complete because of the existence of the lien. Billiard v. Allen, 4 Cush. 532. 5. The court has jurisdiction in equity, under G. S. c. 113, § 2, (P. S. c. 151, § 2,) to decree specific performance of an oral contract, which is not within the Statute of Frauds, when there is no complete and adequate remedy at law. Somerby v. Buntin, 118 Mass. 287. Upon this subject the court say: "Under the Revised Statutes, indeed, the equity jurisdiction of this court to decree specific performance was confined to written contracts. But by St. 1857, c. 214, the Legislature conferred upon this court 'full equity jurisdic- tion, according' to the usage and practice of courts of chan- cery, in all cases where there is not a full, adequate, and complete remedy at law.' " The re-enactment of this statute in G. S. c. 118, § 2, (P. S. c. 151, § 2,) is not to be limited in effect by reason of its being accompanied by a re-enactment of the more restrictive provisions of the Revised Statutes, and of the successive stat- utes by which our equity jurisdiction has been extended. Barnes v. Boston & Maine R. R., 130 Mass. 888. This was a bin in equity for specific performance of an oral con- STATUTES AND DECISIONS. 259 tract respecting the conveyance of land, on the ground that by part-performance the case was taken out of the operation of the Statute of Frauds. The part-performance relied on •was in effect a payment of the price by the plaintiff. But that does not take the oral agreement out of the operation of the statute. The part-performance which takes an oral agreement out of the statute is the doing of such things under and in reliance upon the agreement ly the party seek- ing to enforce it, that it would be a fraud in the other party to deny the validity of the agreement. (Page 390.) 6. A bill to compel specific performance of a contract to convey land cannot be maintained by the administrator of the contracting party. The interest in such a contract enures to the heirs and devisees, and they, and not the per- sonal representatives of the contracting party, are the proper party to the bill for the enforcement of the contract. Caverly V. Simpson, 132 Mass. 464. 7. Unreasonable delay in applying to the court for aid in the enforcement of contracts will induce the court to refuse to decree specific performance. Boston & Maine R. R. Co. V. Bartlett, 10 Gray, 385 ; Williams v. Hart, 116 Mass. 518 ; Wonson v. Fenno, 129 Mass. 405. In this last case the court refused to decree specific performance of the contract be- cause of the plaintiff's laches, but refused to dismiss the bill and allowed the plaintiff in the suit to recover the amount he had paid for the stock which was the subject matter of the contract, the court saying, " A court of equity, while denying the specific relief prayed for, may give to a plaintiff the compensation to which he appears to be entitled." (Page 407.) SUITS FOR CHATTELS SECRETED. § 2, cl. 4. " Suits to compel the re-delivery of goods or chattels taken or detained from the owner, and secreted or withheld so that the same cannot be replevied." 260 EQUITY PLEADINGS AND PRACTICE. 1. If a bill be filed to compel the delivery of a deed to tbe grantee, the defendant in his answer denying the delivery, and evidence having been submitted to the court upon which the court find the deed had not been delivered, the court will not grant partial relief by restoring the parties to the situation in which they stood before the deposit was made, leaving them to litigate in a court of law, but will decide the case definitively upon the merits. In other words, " A party will not be allowed first to litigate a question in a court of equity, and, after failing to establish his claim, again to litigate the same in a court of law." Miles v. Gore, 20 Pick. 28. 2. It is sufficient, in a bill to compel the delivery of a chattel, for the plaintiff to aver that the chattel in question has been concealed by the defendant, so that it cannot be re- plevied. It is no objection that the plaintiff might bring an action of trover for the tortious taking of the chattel, or that the defendant might be sued on the note in assumpsit ; for the intention of the statute is to provide a remedy in equity, in cases where the party has a right to maintain an action of replevin, and is deprived of the benefit of that remedy by the wrongful act of the defendant. Clapp v. Shephard, 23 Pick. 230 (1839) ; Strickland v. Fitzgerald, 7 Cush. 530 (1851) ; Maxham v. Day, 16 Gray, 219 (1860). 8. It is not necessary that a writ of replevin should first be sued out, before a bill to compel delivery may be prosecuted. The defendant cannot, after the suit has been commenced, plead an offer to produce the chattel to the officer so that it might be taken on a writ of replevin, although this offer was made after a hearing on a demurrer to the bill and an order for an amended bill had been passed. The court say a right of action existed at the time of the filing of the original bill : it was a vested right, which would not be defeated by a sub- sequent act of the defendant. The amendment of the bill is a continuance of the former process, and not the institution of a new one. Gibbens v. Peeler, 8 Pick. 259. STATUTES AND DECISIONS. 261 4. To maintain a bill to compel tlie delivery of a chattel, the plaintiff must show that he had a legal right to replevy the chattel, and that such action of replevin could not be maintained by reason of the concealment of the chattel by the defendant. Clapp v. Shepard, 2 Met. 131. In the same case the court say, as the equitable assignee of a chose in action cannot maintain an action upon it in his own name, or an ac- tion of replevin to recover possession of it against the legal owner, he cannot maintain a bill in equity to compel a deliv- ery of it to himself. Id. 130. 5. In a bUl to obtain possession of a horse secreted from the plaintiff by the defendant, an allegation that the plaintiff is the owner of the horse and entitled to possession is suffi- cient, without setting forth the particulars of his title. The court say, looking at this case as a substitute for a writ of re- plevin of property so secreted that it cannot be reached by the ordinary replevin process, we can see no good reason for requiring any further averment in the bill as to the title of the plaintiff than is required in a writ of replevin. Strick- land V. Fitzgerald, 7 Cush. 532. 6. An assignee in bankruptcy can maintain a bill in equity against the insurance company to recover a policy of insur- ance on the life of the bankrupt, and which passed to the assignee as part of the bankrupt assets. Brigham v. Home Life Ins. Co., 131 Mass. 319. In this case the evidence showed that the policy was secreted and withheld by the company, so that it could not be replevied. (Page 320.) CONTKIBUTION, ETC. § 2, cl. 5. "Suits for contribution by or between devisees, legatees, or heirs, who are liable for the debts of a deceased testator or intestate, and by and between any other persons respectively liable for the same debt or demand, when there is more than one person liable at the same time for such contribution." Missing Page Missing Page 264 EQUITY PLEADINGS AND PEACTICB. COPARTNEES. § 2, cl. 7. " Suits between copartners, joint tenants, and tenants in common, and their legal representatives, with authority to appoint receivers of rents and profits, and ap- portion and distribute the same to the discharge of encum- brances and liens on the estate, or among the co-tenants." 1. The assignees of an insolvent firm may maintain a bill in equity against the administrator and heir at law of a deceased member of the firm, for conveyance to them, as a part of the assets of the insolvent estate, of a moiety of real estate which had been purchased by the firm with partnership funds for partnership purposes, although the real estate was conveyed to the partners by such a deed as would have made them tenants in common if they had not been partners. Burnside v. Merrick, 4 Met. 537. 2. A deed by one tenant in common of his estate in the land held in common, in which deed there is a reservation of the grantor's interest in the mines in and upon the land granted, is void, and the grantee does not become a tenant in common with the right to maintain a bill in equity as such tenant. Adams v. Briggs Iron Co., 7 Cush. 361. 3. Prior to St. 1854, c. 74, (P. S. c. 178, §§ 76, 77,) tenants in common in a mill privilege, water rights, or other incorporeal hereditaments, could not maintain a bill in equity, one against another, for partition. Hodges v. Pingree, 10 Gray, 14. 4. The administrator of a deceased tenant in common of personal property, which by agreement between the two ten- ants was to be used in a business superintended by the surviving tenant, can maintain a bill in equity against such survivor for an account of the transactions under the agree- ment. Field V. Craig, 8 Allen, 358, 359. 5. For the necessary averments in a bill in equity by one tenant in common of tools and machinery, and the necessary proofs, see Blood v. Blood, 110 Mass. 545. STATUTES AND DECISIONS. 265 TRUSTEES. § 2, cl. 8. " Suits between joint trustees, co-executors, and co-administrators, and their legal representatives." WASTE AND NUISANCE. § 2, cl. 9. " Suits concerning waste and nuisance, whether relating to real or personal estate." 1. Under this clause the court has jurisdiction in equity in regard to nuisances of a private nature. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 6 Pick. 376. In Attaquin v. Fish, 5 Met. 150, it was held that the equity jurisdiction of the court under R. S. c. 81, § 8, c. 105, § 14, G. S. c. 113, § 2, cl. 9, (P. S. c. 151, § 2, cl. 9,) extended only to cases of technical waste, and not to cases of trespass. But this decision rests upon the lim- ited jurisdiction which had been granted to the court at that time. In view of the full chancery powers now possessed by the court, is there any reason why its practice under this head of equity should not become more like that of the English Court of Chancery ? What that is and has been is clearly stated by Chancellor Kent in his opinion in the case of Livingstone v. Livingstone, 6 Johns. Ch. 508, 509. 2. He says that the distinction, on this point, between waste and trespass, which was carefully kept up during the time of Lord Hardwicke, was shaken by Lord Thurlow in Fleming's Case, respecting a mine, and seems to be almost broken down by Lord Eldon. This protection is now granted in the case of timber, coals, lead ore, quarries, etc. ; and " the present established course," as he observed in Thomas v. Oak- ley (18 Yes. 184), " was to sustain the bill for the purpose of injunction, connecting it with the account in both cases, and not to put the plaintifE to come here for an injunction and to go to law for damages." The injunction was granted 266 EQUITY PLEADINGS AND PEACTICB. in Croekford v. Alexander (15 Ves. 138), against cutting timber, when the defendant got possession under articles for a purchase ; and in Tworl v. Tworl (16 Ves. 128), against cutting timber between tenants in common ; and in Kender V. Jones (17 Ves. 110), where the title to boundary was dis- puted ; and in the case of Cowper v. Baker (17 Ves. 128), against taking stones of a peculiar and valuable quality at the bottom of the sea, within the limits of a manor ; and in Gray v. Duke of Northumberland (17 Ves. 281), against dig- ging coal upon the estate of the plaintiff ; and in Thomas v. Oakley against exceeding a limited right to enter and take stones from a quarry. In all these cases the injury was con- sidered a trespass. 3. A bill in equity, to enjoin a mill-owner from keeping up his dam and flowing the plaintiff's land, in violation of the plaintiff's rights as fixed by a jury, can be maintained. Hill V. Sayles, 12 Gush. 454. The injunction in this case was granted on the ground that the judgment at law, and even successive judgments, would not afford the plaintiff the ade- quate and complete remedy he was entitled to, and for the same reason the court will enjoin the letting off of water from a reservoir established for the benefit of the plaintiff's mill. A bill for such injunction can be maintained against a stranger by several owners of mills, who have jointly erected a reservoir for the purpose of supplying their mills. Ballou V. Hopkinton, 4 Gray, 327. See Cadigan v. Brown, 120 Mass. 494. 4i For a private nuisance the party suffering may have relief in equity, unless he has a plain, adequate, and complete remedy at law. Creely v. Bay State Brick Co., 103 Mass. 514. The objection that the plaintiff has an adequate remedy at law should be made on demurrer, or should be specially set up in the answer, and not raised for the first time at the hear- ing upon pleadings, which suggest no such ground of defence. lb. 655. STATUTES AND DECISIONS. 267 In this class of cases the power of a court of law can do no more than to remove the nuisance, while a decree in equity- may restrain the continuance or repetition of the nuisance, and may in other respects be modified and adapted to the case so as to secure the rights of both parties. Cadigan v. Brown, 120 Mass. 494. See also 16 Pick. 512. 5. When several persons have a common interest in the subject matter of the bill, or when their interests are similarly affected by the same nuisance, they may join in the same bill for relief. Cadigan v. Brown, supra. See Parker v. Night- ingale, 6 Allen, 341, and Nash v. N. E. Mut. Life Ins. Co., 127 Mass. 91. SUITS UPON ACCOUNTS. § 2, cl. 10. " Suits upon accounts, when the nature of the account is such that it cannot be conveniently and properly adjusted and settled in an action at law." 1. In Bartlett v. Parks, 1 Cush. 85, the court say that the statute (R. S. e. 118, § 43) which abolished the action of ac- count and substituted a bill in equity for it was comprehen- sive enough to give the court jurisdiction in equity in all cases where an account is to be settled which cannot be con- veniently settled in an action of assumpsit, whether in such cases an action of account would lie before the statute or not ; thus establishing under this head of equity the same rule as that prevailing in courts of equity in England, where a bill for an account is sustained in many cases in which an action of account would not lie. See Locke v. Bennett, 7 Cush. 449. 2. In Haskins v. Burr, 106 Mass. 48, it was held that the bill upon an account would not lie, upon the simple allega- tion that in his dealings with the defendant the plaintiff had overpaid him, and that the defendant alone kept the account. 3. To maintain a bill for an account, it must appear from specific allegations that there was a fiduciary relation between the parties, or that the account is so complicated that it can- 268 EQUITY PLEADINGS AND PRACTICE. not be conveniently taken in an action at law. The gen- eral allegation that the account is of such a character is not sufficient to sustain the jurisdiction in chancery. Badger v. McNamara, 123 Mass. 119. 4. Walker v. Brooks, 125 Mass. 248. Under this clause the test of jurisdiction is not whether an action at law can be maintained by the plaintiff upon his account, but whether by means of such action the account can be conveniently and properly adjusted and settled. And in Hallett v. Cumston, 110 Mass. 32, it was held that one entitled to a share in the net profits of a business, although not a partner, could main- tain a bill in equity for an account, and notwithstanding he might not maintain an action dt law on the same claim. BILLS BY CEBDITOKS. § 2, cl. 11. " Bills by creditors to reach and apply, in pay- ment of a debt, any property, right, title, or interest, legal or equitable, of a debtor, within this State, which cannot be come at to be attached or taken on execution in a suit at law against such debtor." 1. Under this clause, which is taken from St. 1851, c. 206, the court has jurisdiction in equity over property of a foreign corporation in this State, and may compel the application, in payment of a debt, of property not in its nature attachable at law. And any creditor may maintain a bill for such purpose, although the debtor has other creditors and is insolvent. Sil- loway V. Columbia Ins. Co., 8 Gray, 203. 2. After a debtor has obtained judgment in an action for personal injuries, one of his creditors can maintain a bill to compel payment of the debt from the proceeds of the judg- ment. Rice V. Stone, 1 Allen, 566. 3. It was also held in Anthracite Ins. Co. v. Sears, that a creditor could, by a bill under this clause, reach and apply in payment of his claim a policy of insurance on the life of the debtor which was held by the debtor. 109 Mass. 278. STATUTES AND DECISIONS. 269 4. Also to reach, and apply to the payment of a debt, money due and afterwards accruing to the debtor from a con- tract between him and a third party, stipulating for a semi- annual account between the contracting parties, and a payment to the debtor of the amount found to be due on such account- ing. Lord V. Harte, 118 Mass. 273. 5. A creditor cannot maintain a bill in equity to reach, and apply in payment of his debt, property of his debtor, which is not in the control of the debtor, nor put by him into the custody of a third person, but which is in the hands of offi- cers of the law, as, for instance, receivers appointed by the court, for distribution under proceedings provided by statute for that purpose. Commonwealth v. Hide & Leather Ins. Co., 119 Mass. 157. 6. The bill cannot be maintained to obtain the benefit of a mortgage given by a resident of this State to a firm out of the State, as security for a note still held by the mortgagee or by some person unknown, even if the mortgage has been fraudulently assigned, without the note, to a citizen of this State who is made a party to the bill. Sanger v. Bancroft, 12 Gray, 365. 7. Nor can a creditor of one partner maintain the bill to reach and apply the property of the firm on debts due the firm. The property of the firm and debts due to it are first to be applied to the payment of the creditors of the firm. Tobey v. McFarlin, 115 Mass. 101. 8. Nor can a creditor of a creditor of an insolvent insur- ance company maintain this bill against the receivers of the company, to reach and apply to the payment of the plaintiff's claim the funds belonging to the creditors of the company in the hands of the receivers. 119 Mass. 155-157. Nor can this bill be maintained by a creditor against a corporation, to apply to the payment of a judgment property of the debtor in the hands of a third party, if the judgment was invalid and the corporation had ceased to exist. Thornton v. Mar- 270 EQUITY PLEADINGS AND PEACTICE. ginal Freight RaUway Co., 123 Mass. 32, 35 (187T). See Walker v. Brooks, 125 Mass. 248. 9. Under this clause the interest of a debtor in rents of real estate, due and to become due under a lease of the same, cannot be reached by a creditor by a bill in equity. Schlesinger v. Sherman, 127 Mass. 206. In this case, Gray, C. J., giving the opinion of the court, says, " The equi- table jurisdiction conferred by this statute (G. S. c. 113, § 2 ; P. S. c. 151, § 2, cl. 11) does not depend upon the nature of the plaintiff's debt or cause of action, but upon the existence of some property or right which cannot be come at to be attached or taken on execution at law, as security for, and in satisfaction of, the plaintiffs debt against the defendant. If the property or right in question can be reached either by attachment or by execution at law, there is no ground for resorting to equity ; and the jurisdiction in equity is limited by the statute to such property or rights as can neither be attached or taken on execution at law." (Pages 208, 209.) Phoenix Ins. Co. v. Abbott, 127 Mass. 560. 10. The proceeding under this clause of the statute is regarded by the court as an equitable trustee process, and is so distinguished from a creditor's bill. In Chapman v. Banker & Tradesman Publishing Co., 128 Mass. 478, it was held that " debts due to different persons severally cannot be joined in one bill in equity under this clause of the statute." 11. The fact that the property is owned, and therefore assignable, by a debtor residing here, is not sufficient. The statute does not look to the mere right of property vested in a debtor within the Commonwealth, regardless of the question whether the property is here also. It does not extend to real estate outside the State, though owned by a debtor within it ; nor to chattels situated in another State, owned by a debtor here ; and as " patents are incorporeal rights, not existing in any particular State or District," a STATUTES AND DECISIONS. 271 patent right owned by a resident in the Commonwealth cannot be reached by his creditors by a bill in equity under this clause. Carver v. Peck, 131 Mass. 291. The interest of a wife in a policy of insurance, effected by her husband, may, after his death, be attached by a creditor of hers under this clause. Morris v. Mass. Mut. Life Ins. Co., 131 Mass. 294 ; Troy v. Sargent, 132 Mass. 408. 12. In Bartholomew v. Weld, 127 Mass. 210, 211, the de- cision is, that, the purpose of the statute being to authorize the present application in equity of the debtor's property to the payment of the plaintiff's debt, a bill in equity cannot be maintained by a creditor, to order a trustee to transfer and pay to the plaintiff, upon the future death of the equi- table tenant for life of the trust fand, so much of a debtor's share as devisee of an equitable remainder in the trust fund as may be necessary to satisfy the plaintiff's claim. 13. To maintain a bill under this eleventh clause it is not enough to show that the debtor is within the jurisdiction of the court, for by the express words of the statute the prop- erty, right, title, or interest sought to be reached ,must be "within this State." 14. The proceeding under this clause of the statute is regarded as an equitable trustee process, and is distinguish- able from a creditor's bill, for the bill may be maintained by a single creditor for his own benefit without making other creditors parties ; and such other creditors will not be permitted to come in and share with the plaintiff the benefits obtained by the suit. 15. Phoenix Ins. Co. v. Abbott, 127 Mass. 560. In this case the allegations in the bill were that neither of the defendants had any property that could be attached at law, but that the trust company, one of the defendants, owned promissory notes given to it for loans, and United States bonds; and the prayer of the bill was that the company should be enjoined against alienating its assets to the amount 272 EQUITY PLEADINGS AND PBACTICE. of $5,000, so that the same might be applied to the payment of the plaintiff 's judgment. The property, it will be observed, was said to be in the possession of the debtor, and no one was summoned as the equitable trustee. " The attempt," say the court, " is to compel the company by injunction to hold |5,000 worth of property till this suit shall be terminated, subject to any order which the court may see fit to make. If this can be regarded as within the scope of the statute, it would follow that all suits for the collection of debts could be brought by bill in equity, in which the debtor only should be made defendant, if the plaintiff could allege and prove that the debtor had, in his own hands, property which could not be come at to be attached or taken on execution at law. This is clearly not the intention of the statute." See Pond v. Framingham & Lowell R. R. Co., 130 Mass. 194. 16. Where a single creditor, under Gen. Sts. c. 113, § 2, cl. 11, (P. S. c. 151, § 2, cl. 11,) seeks the aid of a court of equity to prove his debt and to obtain equitable relief out of a trust fund, the equitable defence of undue influence and threats may be set up, and the defendant is not obliged to show duress at law in order to avoid his liability. Rau v. Von Zedlitz, 132 Mass. 164. 17. Thornton v. Marginal Freight Railway Co., 123 Mass. 35. The plaintiff had a claim against the Marginal Freight Railway Company, which corporation had been dissolved; the latter was a creditor of the other defendant, the Union Railway Company. The plaintiff had not obtained judgment against the first-named company. The court held that the bill in equity, under the eleventh clause above cited, could not be maintained, because that clause extends only to living debtors and existing corporations. And a court of equity has no general jurisdiction of a bill by a single creditor, who has not recovered a valid judgment against his debtor, the debtor living, to apply to the payment of his debt property of the debtor in the bands of a third party. STATUTES AND DECISIONS. 273 18. If a wife, without her husband's knowledge or assent, deposits his wages, placed in her hands for safe keeping, in a savings bank, and uses the deposit with money of her own in the purchase of land, the title to which she takes and holds in her own name, the husband has an equitable inter- est in the land for which a creditor of his may maintain a bill, under this clause, against the husband and wife, and have the same applied to the payment of his debt. Bresni- han V. Sheehan, 125 Mass. 11. 19. Hoar, J., in Barry v. Abbot, 100 Mass. 398, says : " It has been held that the remedy given by this clause of the statute might be pursued by a creditor, who had not ex- hausted his remedies at law, either by suing out an execu- tion, or even reducing his claim to a judgment ; and that it might be instituted by a creditor for himself alone, and not for himself and other creditors who might come in and be- come parties to the suit, differing in this respect from what is commonly known in equity as a creditor's bill." See also 13 Allen, 33. FRAUD. § 2, cl. 12. "Cases of fraud, and conveyances or transfers of real estate in the nature of mortgages." 1. A minority of the stockholders of a corporation may maintain a bill in equity in behalf of themselves and other stockholders for conspiracy and fraud, whereby their inter- ests have been sacrificed, against the corporation and its officers, and others who participate therein. Peabody v. Flint, 6 Allen, 53. 2. Under this clause the authorit}'^ of the court is ample. It is only limited by those considerations which guide courts of full chancery powers in the exercise of all those powers. Wells, J., in Campbell v. Dearborn, 109 Mass. 142. 3. In this Commonwealth, the rule that, if a party has an adequate remedy at law, he will not be permitted to prose- 18 274 EQUITY PLEADINGS AND PEACTICE. cute his suit in equit;^, applies to cases of fraud as well as to other matters of equitable jurisdiction. . Suter v. Matthews, 115 Mass. 256. 4. A mortgagee of land, to correct a mistake in his mort- gage, discharged it of record and took a new mortgage in ignorance of an intervening mortgage. After learning of the existence of this mortgage, he sold the land on his second mortgage, and bought it himself, and then recovered judgment in an action against the mortgagor for the balance due on the mortgage note, and on execution sold all the mortgaged propertj'. Then, finding that the second mortgagee intended to insist on his legal rights under his mortgage, he filed his bill in equity, praying that the second mortgagee might be enjoined from selling under his mortgage, and that the dis- charge of the first mortgage might be vacated and the mort- gage restored, the plaintiff relinquishing all rights under his second mortgage. The plaintiff said he had acted under the mistaken belief that the second mortgagee would make no claim against him. But the court said, "The position the plaintiff finds himself in is one of his own choosing, and taken with full knowledge of all the facts, and he is not en- titled to the relief he seeks," and ordered the bill dismissed. Child V. Stoddard, 130 Mass. 110. 5. A court of chancery will not reform a written contract entered into deliberately, unless the proofs of mutual mistake are full, clear, and decisive. It must appear beyond rea- sonable doubt that the precise terms of a contract had been orally agreed upon between the parties, and that the written instrument afterwards signed fails to be, as it was intended, an execution of the previous agreement, but expresses a different contract ; and that this is the result of a mutual mistake. Otherwise, if a contract should be reformed upon proof of the mistake of one of the parties as to its terms or legal effect, the injustice would be done of imposing upon the other party a contract to which he had never assented. German Am. Ins. Co. v. Davis, 131 Mass. 317. STATUTES AND DECISIONS. 275 6. The discharge of a mortgage made by mistake may, upon proper bill and proofs, be cancelled, and the mortgage restored to the record as an existing incumbrance on the estate, if the mortgagor has not paid the debt secured by the mortgage, and no rights of third parties have intervened. Wilcox V. Foster, 132 Mass. 320. ACCIDENT AND MISTAKE. § 2, cl. 13. "Cases of accident or mistake." Under this clause the court has jurisdiction in equity to reform a deed. 1. Canedy v. Marcy, 13 Gray, 373. For the principles upon which a court of equity acts in reforming deeds, see Glass V. Hulbert, 102 Mass. 24. Eelief in equity will be granted to correct a mistake made in a judgment in a writ of entry, whereby a parcel of land had been included in the judgment which the plaintiff did not claim. 2. Currier v. Esty, 110 Mass. 536. "Wells, J., in giving the opinion of the court in this case, says: "Actual fraud on the part of the defendant is not essential to the relief sought. It is enough that the judgment was the result of a mistake of fact on the part of the plaintiff ; that he is deprived of his right of review by the failure seasonably to discover the real character of the judgment, which, though known to the other party, had been purposely concealed from him ; and that without fault or negligence on his part he is dispossessed of property without an opportunity to maintain his title thereto. To enforce such a judgment would be contrary to equity and good conscience." (Page 544.) DISCOVERY. § 2, cl. 14. " Suits or bills for discovery, when a discovery may be lawfully required according to the course of proceed- ings in equity." 276 EQUITY PLEADINGS AND PEACTICE. 1. Before the passage of the act conferring equity powers upon the court in matters of fraud, it was held that, for the sake of aiding parties apparently injured, the court could not convert frauds into trusts, and thus support bills for relief. Mitchell V. Green, 10 Met. 108. In the same case it was also held that the court could not sustain a bill for discovery which did not aver that a suit at law was pending or about to be commenced, in which a discovery would be material. See also Pease v. Pease, 8 Met. 395. 2. A bill waiving an answer under oath cannot be main- tained as a bill of discovery. Ward v. Peck, 114 Mass. 122 ; 8th Rule in Chancery; Walker v. Brooks, 125 Mass. 248. In Ahrend v. Odiorne, 118 Mass. 269, it was held that the bill could not be maintained for discovery, because it did not show that the discovery prayed for was anything but inci- dental to the relief sought, which the court ruled could not be granted, and because it did not appear that the discovery could not be had by interrogatories in an action at law. FKAUDUIiENT CONVEYANCES. § 3. " The court shall also have jurisdiction in equity to reach and apply in payment of a debt any property, right, title, or interest, real or personal, of a debtor, liable to be attached or taken on execution in a suit at law against him and fraudulently conveyed by him with intent to defeat, delay, or defraud his creditors, or purchased or directly or indirectly paid for by him, the record or other title to which is retained in the vendor, or is conveyed to a third person with intent to defeat, delay, or defraud the creditors of the debtor." Before the passage of St. 1875, c. 235, (P. S. c. 151, § 3,) a party, having attached on mesne process land subject to a mortgage, could maintain a bill in equity, brought within thirty days from the date of his judgment, to enforce his lien against the surplus proceeds of the sale of the land remaining in the hands of the mortgagee after payment of the mortgage STATUTES AND DECISIONS. 277 debt. Wiggin v. Heywood, 118 Mass. 514. The plaintiff in that case acquired by his attachment a lien upon the land, as against all parties except the mortgagee. But the mortgagee having sold the land, and given to the purchaser an absolute title against all liens and incumbrances acquired subsequent to the date of the mortgage, the plaintiff could not satisfy his judgment by a levy upon the land, and he had no means by which he could at common law enforce his right to the sur- plus in the hands of the mortgagee. And this state of facts presented a case, as the court say, "in which a court of chancery, according to its well-settled practice, will afford a remedy, to the same effect and upon the same conditions, as nearly as may be, as in proceedings at law in like cases." Id. 516. In the case of Jones v. Green, 1 Wall. 330, the Supreme Court of the United States held, in conformity with the decision of our own court in Trow v. Lovett, that a bill in equity would not lie on behalf of a judgment creditor to sub- ject real estate of his debtor, held by a third party upon a secret trust for him, to the satisfaction of the judgment, until an attempt had been made to secure payment at law by the issue of an execution on the judgment. In the case of Trow v. Lovett, 122 Mass. 571, it was decided by the full court that a judgment creditor, who has not taken out execution on his judgment, cannot, under this section of the statute, maintain a bill in equity to apply, in payment of his debt, land conveyed by the debtor with intent to de- fraud the plaintiff as his creditor. And it was therefore held that the assignee of the bankrupt estate, who intervened in the defence of the suit, could hold the land as against the judgment creditor, the latter not having obtained any lien upon the land prior to the commencement of proceedings in bankruptcy. The decision rests upon the well-established rule of law in this State, that a judgment does not create a lien upon land in favor of the judgment creditor. To create 278 EQUITY PLEADINGS AND PRACTICE. a lien in equity upon land fraudulently conveyed, the credi- tor must at least have taken out execution on his judgment. This section, the provisions of which first became a part of our remedial legislation by St. 1875, c. 235, though manifold in expression, is designed to accomplish a single object, and that is to enable a creditor to reach and apply, in payment of his claim, any property of his debtor, real or personal, which has been conveyed, or the title to which is held, with an in- tent to defeat, delay, or defiaud the creditor. The property thus fraudulently conveyed or held must, of course, be such property as is, under our laws, liable to be attached or taken on execution ; for the remedy here provided is only another mode by which a creditor is enabled to attach the property of his debtor. Even before the enactment of St. 1855, c. 194, giving the court equity jurisdiction in cases of fraud, the creditor might attach, in a suit at law, the real estate of his debtor fraudulently conveyed, and, after obtaining judgment in the suit in which the attachment was made, he could bring a writ of entry against the fraudulent grantee or tenant, and thus secure the satisfaction of the judgment against his debtor. And that mode of procedure is still open to any creditor who chooses to adopt it, and it will be found in some cases quite as effectual as this proceeding in equity provided for in the section under consideration. But there are other cases in which the equitable proceeding will be found more direct and efficacious. Besides, there is a class of cases entirely beyond the scope of the legal remedy, but which are quite within the range of this later and more ample provision for compelling fraudulent debtors to pay their honest debts. PULL EQUITY JURISDICTION. § 4. " The court shall also have jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisprudence, and in respect of all such cases and matters shall be a court of general equity juris- diction." STATUTES AND DECISIONS. 279 1. In that most excellent work, " Notes on the Public Statutes of Massachusetts," the learned authors, in their note to this § 4 of c. 151, say that, where a party could establish his title to real estate by writ of entry, he could not, prior to the before-mentioned St. 1877, c. 178, (P. S. c. 151, § 4,) maintain a bill in equity for the purpose of obtaining a release or reconveyance from the party in whom the record title stood. Can a party now, since the passage of said statute, having such a right to establish his title by a suit at law, maintain a bill in equity for the purpose named ? 2. The cases cited in connection with that part of the section above quoted are the following : — Metcalf V. Cady, 8 Allen, 587. In this case, which was a bill in equity to set aside certain mortgages alleged to be fraudulent, the court say, " This demurrer" (which had been filed to the bill) " may well be sustained as to the claims set forth in this bill, upon the ground that the plaintiffs have a plain and adequate remedy at law for avoiding these mort- gages, if they are invalid for the reason alleged"; and for that reason the bill was dismissed. 3. Pratt V. Pond, 5 Allen, 59 (1862), was a bill to compel a reconveyance of land by the grantee named in a deed which had been fraudulently obtained of the grantor. The court sustained a general demurrer to the bill on the ground that the plaintiff had a plain, adequate, and complete remedy at law by a writ of entry. It is in this case (p. 60) that the court say that the remedy at law must refer to remedies at law as they exist under our statutes and according to our course of practice. This may exclude some of the cases where the English courts of equity take jurisdiction, espe- cially cases involving fraud. But still the rule as to the adequacy of legal remedies excluding equity is the same in England as here. 4. In the case of Peabody v. President and Fellows of Har- vard College, 10 Gray, 283, the bill was dismissed because, 280 EQUITY PLEADINGS AND PRACTICE. as the court say, " If the views of the plaintiff are sound as to the rights of the respective parties, the plaintiff has a plain, adequate, and complete remedy at law." 5. In Bassett. v. Brown, 100 Mass. 357, the demurrer, founded on the allegation that the plaintiff's remedy at law was adequate, was sustained, and the bill dismissed for that reason. 6. The case of Swamscott Machine Company v. Perry and Wife, 119 Mass. 123, was a bill in equity to obtain a release from the wife of all her right in land fraudulently conveyed to her, through a third party, by her husband. Upon the facts stated in the bill, the court say the plaintiff has the legal title ; John R. Perry, one of the defendants, has the possession, without any title; and his wife, the other de- fendant, has neither title nor possession. The plaintiff has a full, adequate, and complete remedy at law by writ of entry against John R. Perry, and cannot, therefore, main- tain this bill. In which of these cases would the court now entertain a bill in equity under the full chancery powers granted by this fourth section, which is taken from St. 1877, c. 178? According to the reasoning of the court in the case of Allen V. Storer, 132 Mass. 372 (1882), and the conclusion reached in that case, the decisions in all the foregoing cases would apparently be the same now as before the passage of the statutes of 1877. And why should the decisions be different under the later legislation ? For the test by which jurisdiction in equity is to be determined is not found, in this class of cases, in the extent of the equity powers of the court, but in the fact that the party has or has not a plain, ade- quate, and complete remedy at law. 7. Under this head of general equity jurisdiction it may as well as anywhere be noted that the court refused to grant a writ of supplicavit. In Adams v. Adams, 100 Mass. 365 (1868), the court held that the equity jurisdiction of the STATUTES AND DECISIONS. 281 court did not warrant the issuing of a writ of supplicavit on the petition of the wife against her husband, who was guilty of such cruel treatment of her as would sustain a libel for divorce from bed and board. This was before the passage of St. 1877, c. 178. But it is evident, from the reasoning of the court in that case, that the decision would be the same under the enlarged chancery powers granted to the court by that statute ; for the proceeding under a writ of supplicavit is in its nature criminal, and courts of equity will not inter- fere for the punishment or prosecution of merely criminal or immoral acts, unconnected with violations of private rights. 2 High on Injunctions, § 20. BY BILL OR PETITION. § 5. " Cases in equity may be commenced by bill or petition with a writ of subpoena according to the usual course of proceedings in equity, or inserted in an original writ of summons or of summons and attachment, or by a declaration in an action of contract or tort, as the case may be, with or without an order for the attachment of the prop- erty or arrest of the defendant, and shall be returnable at the terms of the court as established in the several counties or on the rule days established by the court." See St. 1883, c. 223, § 11. 1. An action of contract, praying for relief in equity under St. 1853, c. 371, and St. 1855, c. 194, (P. S. c. 151, § 5,) is to be treated as a suit in equity, and may be re- ferred to a master in chancery to state an account between the parties. Topliflf v. Jackson, 12 Gray, 565. An appli- cation to the court for relief in equity, containing no prayer for process, and not concluding with a general interrogatory, may be regarded as a bill in equity, and when properly amended the relief may be granted. Belknap v. Stone, 1 AUen, 572. 282 EQUITY PLEADINGS AND PEACTICE. 2. Under this section relating to the commencement of suits in equity, it may properly enough be noted that a cer- tificate of an oath as to the amount of damages sought to be recovered is not necessary. Stockbridge Iron Co. v. Cone Iron Works, 99 Mass. 468. A bill in equity, accord- ing to the practice heretofore prevailing in this State, might be signed by attorney, and no allegation that he was the duly authorized attorney of the party was necessary. The bill need not be sworn to. Burr v. Lynde, 6 Allen, 305 ; Pope V. Leonard, 115 Mass. 286. 3. By St. 1883, c. 228, § 10, it is now provided that bills, answers, petitions, and other pleadings, may be signed by the party or his attorney, and shall not require any other signa- ture, nor be sworn to, except answers to bills for discovery. In Harvey v. De Witt, 13 Gray, 537, it was held that matters purely of law and matters of equity could not be combined in the same suit, under St. 1852, c. 212, and St. 1853, c. 371 ; that the suit could not be maintained on the count in equity, because as to that the plaintiff had • a complete remed}' at law ; nor could it be maintained on the count at law, because there was no affidavit that the amount sought to be recovered exceeded three hundred dollars, as required by statute. PKOCESS, — HOW SERVED. § 6. " When a case in equity is commenced by bill or petition inserted in an original writ of summons, or of sum- mons and attachment, or by a declaration in an action of contract or tort, the bill, petition, or declaration need not be inserted in the separate summons, in the copy of the original writ to be served on the defendant, nor in the copy of the writ deposited or left with or in the office of a register or other public officer, or officer of a corporation or other person, for the purpose of making an attachment." This is similar to the provision as to writs and declara- STATUTES AND DECISIONS. 283 tions in actions at common law. P. S. c. 167, § 7. See also 1 Chancery Rule of Supreme Judicial Court. PLEADESr&S, — FORM OF. § 7. " The material facts and circumstances relied on by the plaintiff shall be stated with brevity, omitting immaterial and irrelevant matters. If a discovery is sought, it may be by inserting a prayer therefor in the bill, petition, or declara- tion, or by interrogatories. Answers thereto shall be made without unnecessary delay, and questions arising thereon be determined by the rules applicable to bills of discovery." This great and important change in equity pleadings was first provided for in our statutes by St. 1855, c. 194, and was imported into that act from St. 1853, c. 371, which last- named statute was an attempt to convert equity pleadings into common-law forms. But the essential distinctions were preserved, which exist and will continue to exist between the means employed in the administration of justice at law and in equity, by whatever names the proceedings may be designated. INTEEEOGATOEIES. § 8. " In suits in equity, either party may, at any time after the filing of the answer, file in the clerk's ofiice inter- rogatories for the discovery of facts and documents material to the support or defence of the suit, to be answered on oath by the adverse party in the same manner and subject to the same restrictions and regulations as are provided by chapter one hundred and sixty-seven with reference to interrogatories in civil actions." See P. S. c. 167, §§ 49-60. § 9. " If a party neglects or refuses to expunge, amend, or answer according to the requisition of chapter one hundred and sixty-seven, the bill shall be dismissed or taken as con- fessed, or such other order or decree may be entered as the case may require." See P. S. c. 167, §§ 57-59. 284 EQUITY PLEADINGS AND PBACTICB. DEFENCE TO BE BY DEMtJREER, ETC. § 10. "A defence in equity shall be made by demurrer, plea, or answer. A demurrer shall be accompanied with a certifi- cate that it is not intended for delay ; and an answer shall be supported by oath, unless waived by the adverse party," By the 8th Chancery Rule of the Supreme Judicial Court it was provided that, when a bill shall be filed other than for a discovery only, the plaintiff may waive the necessity of the answer being made on the oath of the defendant ; and in such case the answer may be made without oath. St. 1883, c. 223, § 10, declares that an answer shall not he sworn to or under seal, except in cases of bills filed for discovery only. • As this last-cited section applies to both the Supreme Judi- cial and Superior Courts, it must modify the practice estab- lished under former statutes and the above-named rule of the court.^ Although the statute provides that a demurrer must be accompanied with a certificate that it is not intended . for delay, yet a statement in an answer in the nature of a demurrer does not require such certificate. Mill River Loan Association v. Claflin, 9 Allen, 101. In this case, Hoar, J., giving the opinion of the court, says: "No separate demurrer was filed; but the defendants have relied upon a statement in the nature of a demurrer inserted in their answer; which is permitted by Chancery Rule 28 [now 13]. We think that in such a case no certificate is required. It is not a formal demurrer, and so the statute does not apply in terms. And it is not within the reason of the statute because the time for filing an answer is not extended, nor the preparation of the cause for hearing necessarily delayed thereby." 2. The objection that a demurrer is not accompanied with a certificate cannot be taken for the first time after the case has been reserved on bill and demurrer. Nelson v. Ferdinand, 111 Mass. 306. 1 The above-cited 8th Rule is omitted in the rules adopted in 1884. STATtJTES AND DECISIONS. 285 3. When an answer to a bill in equity is filed with a demurrer, and the demurrer is overruled, no order to answer over is necessary. O'Hare v. Downing, 130 Mass. 16. 4. A bill is demurrable not only if it shows that the plain- tiff has a remedy at law, but also if it fails to show he is without such remedy. Pool v. Lloyd, 5 Met. 525 ; Bassett V. Brown, 105 Mass. 551-560 ; Sanborn v. Dwinell, 135 Mass. 236. CASES HEAED BY SINGLE JUSTICE. § 11. " Cases in equity, and motions and other applica- tions therein, whether interlocutory or final, shall in the first instance be heard and determined by one justice of the court." This section is taken from St. 1859, c. 237, § 1. Before the passage of the last-named act, all issues in law were required to be heard by the full court. Rev. Sts. c. 81, §13. FINAL DECREES. — APPEALS. § 13. " From final decrees made by a single justice, any party aggrieved may, within thirty days after the entry thereof, claim an appeal, to be entered on the clerk's docket ; and thereupon all proceedings under such decree shall be stayed, and such appeal shall thereupon be pending before the full court, who shall hear and determine the same, and affirm, reverse, or modify the decree appealed from, as cir- cumstances may require. On the reversal of a final decree, the court may remand the cause, with such directions as are necessary and proper, to a single justice, further to proceed therein, or may refer it to a master, or take such other order respecting future proceedings therein as equit}^ requires, and as shall be most conducive to the just and speedy determination of the case." 1. Whenever a cause is heard on appeal, on the same evidence as on the original hearing, the decree is not to be 286 EQUITY PLEADINGS AND PRACTICE. reversed in matter of fact, unless the appellate court holds it to be clearly erroneous. Reed v. Reed, 114 Mass. 372 ; Allen V. Allen, 117 Mass. 29. 2. Whether the decree of a single justice is final or inter- locutory, an appeal therefrom does not depend upon his allowance or disallowance, but is matter of right. The time for claiming an appeal cannot be extended by consent of parties, or by the justice whose decree is appealed from. And if the appeal is not taken within the time prescribed, the full court cannot acquire jurisdiction thereof otherwise than upon a petition for leave to appeal according to the statute. Attorney General v. Barbour, 121 Mass. 573. . 3. If the appellant neglects to order the proper copies to be prepared for the full court, the remedy of the adverse party is not to be sought by complaint or petition to affirm the decree, for non-entry of the appeal, but hj motion to have the appeal dismissed, and the decree affirmed, for failure duly to prosecute the appeal. Cobb v. Rice, 128 Mass. 12. 4. No appeal lies from a decree made by consent of parties. Winchester v. Winchester, 121 Mass. 127. 5. No decree is a final one which leaves anything open to be decided by the court, and does not determine the whole case. An order allowing or sustaining a demurrer is not a final decree, unless in terms or effect it dismisses the bill and puts the case out of court. Forbes v. Tuckerman, 115 Mass. 119. 6. On appeal from the decree of a single judge upon oral evidence duly reported, the case is heard upon the same evi- dence, unless leave to exhibit further proof has been granted. Montgomery v. Pickering, 116 Mass. 230. 7. Sparhawk v. Sparhawk, 120 Mass. 392. Nothing is open before the full court on appeal but the question whether the decree below is warranted by the allegations and prayers of the bill or petition, where there was no STATUTES AND DECISIONS. 287 request at the bearing before a single justice for a report of facts, or the appointment of a commissioner to take the evidence. Id. 230. 8. In an equity suit, an entry upon the docket, " Bill dismissed," is a final decree. Snell v. Dwight, 121 Mass. 348. APPEALS. — HOW ENTERED. § 14. " The clerk of the court for the Commonwealth shall enter appeals in equity and probate matters on a separate docket." § 15. " If an appeal is taken from a final decree, the jus- tice by whom such decree was made may make such orders for the appointment of receivers, and of injunction or pro- hibition, or for continuing the same in force, as are needful for the protection of the rights of parties, until the appeal is heard by the full court ; subject, however, to be modified or annulled by the order of that court on motion, after the appeal is taken." A decree entered in accordance with the rescript of the full court is not a subject of appeal. Lincoln v. Eaton, 132 Mass. 69 ; Humphrey v. Baker, 103 U. S. 736. INTEELOCTJTOEY DECREES. — APPEALS, ETC. § 16. " From all interlocutory decrees made by a single justice, any party aggrieved may appeal, in like manner, to the full court ; but such appeal shall not suspend the execu- tion of the decree of the single justice, nor transfer to the full court the entire cause, or any matter therein, except the question whether the interlocutory decree appealed from shall be affirmed, reversed, or modified." 1. An appeal lies from an interlocutory order refusing to submit issues requested to the jury, and, if it is apparent that the matter ought to be first determined by the full court, a stay of proceedings may be had for that purpose. Stock- 288 EQUITY PLEADINGS AND PEACTICE. bridge Iron Co. v. Hudson Iron Co., 102 Mass. 45 ; Newell v. Homer, 120 Mass. 281. 2. Exceptions cannot be taken to a refusal of the court to frame issues to the jury. Appeal is the proper remedy. Brooks V. Tarbell, 103 Mass. 499 ; St. 1859, c. 237, § 4. Ward V. Hill, 4 Gray, 595. In this case Shaw, C. J., says, " We suppose it well established as a rule of chancery, on a hearing, an issue to try a matter of fact will be ordered or not according to the sound judicial discretion of the court." The order of the court at the trial was that issues of fact be framed to be tried by the jury. To this order the defendant excepted ; and the real point decided by the court was that the exceptions would not lie. And this is the decis- ion of the court since the passage of the above-cited act, which is now P. S. c. 151, § 16. See 13 Allen, 209. 3. When a case in equity comes before the full court on a bill of exceptions, instead of by appeal, no question of fact is open. National Mahaiwe Bank v. Barry, 125. Mass. 20. An appeal from an interlocutory order is not to delay the progress of the cause before a single justice, except at his discretion. Forbes v. Tuckerman, 115 Mass. 119 ; Cheney V. Gleason, 125 Mass. 180. Before the passage of St. 1859, c. 237, § 4, it was held to be discretionary with the court whether to frame issues for a jury or not. 4. It is no longer held to be matter of discretion to grant or disallow a motion for framing issues for the jury, but the objection to a refusal to grant such a motion must be by appeal, and not by exceptions. For this being an inter- locutory order, a right of appeal is expressly given by the above-cited sixteenth section ; but as the court say in Brooks V. Tarbell, 108 Mass. 499, such an order has never been sub- ject to exceptions. 5. In the matter of framing issues, proceedings in probate appeals are conducted in accordance with the rules and practice in equity. Newell v. Homer, 120 Mass. 281. STATUTES AND DECISIONS. 289 INTERLOCUTORY DECREES NOT APPEALED FROM. § 17. "Interlocutory decrees not appealed from shall be open to revision on appeals from final decrees, so far only as it appears to the full court that such final decrees are erroneously affected thereby." 1. An order which merely sustains a demurrer to the bill, without more, is an interlocutory, and not a final decree ; for it leaves it still within the power of the court to allow amendments, either in form or in substance, at any time before the bill is ordered to be dismissed. Parker v. Flagg, 127 Mass. 30 (1879). 2. An appeal in a probate case lies from the decision of a single judge of the Supreme Judicial Court to the full court in matters of fact as well as of law. Wright v. Wright, 13 Allen, 207 (1866); Smith v. Townsend, 109 Mass. 502. CASE MAY BE REPORTED TO FULL COURT. § 18. " If upon making an interlocutory decree or order the justice is of opinion that it so affects the merits of the controversy that the matter ought to be determined by the fuU court before further proceedings are had, he may report the question for that purpose, and stay all further proceed- ings except such as are necessary to preserve the rights of the parties." See Forbes v. Tuckerman, 115 Mass. 119. APPEAL OMITTED BY MISTAKE. § 19. "A party who has by accident or mistake omitted to claim an appeal from a final decree within the time al- lowed for that purpose may, at any time within one year after the entry of the decree from which he desires to appeal, apply to the full court by petition for leave to appeal ; which may be granted upon such terms as appear to the court just and equitable." 19 290 EQUITY PLEADINGS AND PEACTICE. McFeely v. Scott, 128 Mass. 19 (1879) ; Attorney General V. Barbour, 121 Mass. 568. The time limited by P. S. c. 151, § 13, for appealing from decrees of a single judge in equity, cannot be extended by consent of parties, or by the justice whose decree is appealed from. CASE MAY BE EESBEVED. § 20. " The justice by whom a case is heard for final decree may reserve and report the evidence and all questions of law therein for the consideration of the full court ; and thereupon like proceedings shall be had as on appeals from final decrees." 1. A question not raised by the report, and not within the scope of the plaintiff's bill, cannot properly be considered by the full court. Nowell v. Boston Academy of Notre Dame, 130 Mass. 211. 2. All inferences of fact and conclusions of law are open before the full court upon a report of a single justice. Parks V. Bishop, 120 Mass. 340 ; Learned v. Foster, 117 Mass. 365. 3. In a case reserved on bill and demurrer, an objection not taken on the demurrer, nor assigned ore tenus at the hearing, is not open before the full court. Somerby v. Bun- tin, 118 Mass. 279. DATE OF DECEEES. § 21. " Every order and decree shall bear date as of the day when it is actually entered by the clerk, and the date shall be noted upon the order or decree and upon the docket by the clerk at the time of entering the same." A decree takes full effect on the day when it is received by the clerk and becomes matter of record, whether in term time or vacation. But no decree can be said to be entered of record until it is formally drawn out and filed by the clerk. A mere order for a decree, before it is extended in due form and apt and technical language, cannot be held to STATUTES AND DECISIONS. 291 be a complete record of the judgment of the court. Thomp- son V. Goulding, 5 Allen, 84, 85. FINAL PKOCESS. § 22. " No process for the execution of a final decree made by a single justice shall issue until after the lapse of thirty days from the date of the entry thereof, unless all parties against whom such decree is made waive an appeal by an entry on the clerk's docket, or by a writing filed in the cause." Thompson v. Goulding, 5 Allen, 81. The thirty days are reckoned from the day when the decree is received by the clerk and formally drawn out and filed, whether this be done in vacation or term time. A mere order for a decree, before it is extended in due form and in apt and technical language, cannot be held to be a complete record of a judg- ment of the court. Id. 85. HEARINGS, — "WHERE MAY BE. § 23. " A single justice or the full court may when need- ful hear and determine cases pending in a county other than that in which such justice or court is sitting, or any motion therein. All orders and decrees made on such hearings shall be transmitted to the clerk in the proper county, to be by him entered." Winchester v. Winchester, 121 Mass. 127; Thompson v. Goulding, 5 Allen, 81 ; Chancery Rule 33. NOTICE OF HEARING. § 24. " A motion shall not be heard nor a decree or order made under the preceding section, until reasonable notice thereof has been given to the adverse party or his counsel." 1. Winchester v. Winchester, 121 Mass. 131. An appli- cation for a rehearing of a suit once decided is addressed 292 EQUITY PLEADINGS AND PEACTICB. exclusively to the discretion of the court. Shannon v. Shan- non, 10 AUen, 249. In the Supreme Court of the United States no rehearing of a case once decided is granted, nor even an argument permitted upon the question whether a rehearing should be had, unless the court, upon inspection of the petition for a rehearing, sees fit so to order. Id. 130. 3 Hovr. 413 ; 14 How. 25. And this court (Supreme Judir cial Court), says Gray, C. J., for some years past, has conr formed to this practice as essential to the discharge of its increasing business. § 25. " Either party in such case may transmit to the court his reasons in writing for or against the application, and the justice shall examine the same and proceed thereon as if the parties were present." TESTIMONY TAKEN ORALLY, — "WHEN TO BE EEPOETED. § 26. " The testimony of witnesses examined orally before a single justice upon any matter pending before him, in which an appeal is taken, shall be reported to the full court. And the court shall provide by general rules for some con- venient and effectual means of having the same reported by the justice before whom the hearing is had, or by some person designated by him for that purpose. No oral evi- dence shall be exhibited to the full court, but the cause shall be heard on appeal upon the same evidence as on the original hearing ; but the full court may grant leave to parties, in special cases of accident or mistake, to exhibit further evidence, and may provide by general rules or spe- cial order for the conditions under and modes by which such evidence shall be taken." 1. No exception lies to a refusal of the judge who hears the case to appoint some one to report the evidence, if he reports the evidence himself to the full court. Granger v. Bassett, 98 Mass. 462. Application to the full court for the appointment of a commissioner to take evidence comes STATUTES AND DECISIONS. 293 too late. It should be made before the hearing by a single justice. Mason v. Lewis, 115 Mass. 336. 2. On an appeal from the decree of a single justice to the full court without a report of the evidence or facts upon which the decree was made, the court cannot order evidence to be taken. Mason v. Daly, 117 Mass. 403-406. A master is not bound to report evidence unless specifically directed to do it. Eaton v. Lincoln, 132 Mass. 71. 3. In a case heard upon evidence, not reported, and in ■which the bill was dismissed, it was held that all inferences of fact open on the bill and answer must be presumed to have been decided against the plaintifP. Seamans v. Gibbs» 132 Mass. 240. 4. When a single justice reports on appeal the facts on which his decree is based, all inferences of fact, and ques- tions of discretion as well as of strict law involved in the case, are open for review by the full court. Wright v. Wright, 13 Allen, 208. "WKITS OF SEISIN, ETC. § 29. " The court may issue writs of seisin and execution in common form when such process appears to be an appropriate method of enforcing a decree in equity." OEIGINAL PAPERS. § 32. " The original papers in a suit in equity may be taken from the files in any countj' by the counsel of record of either party, for use before the court, upon leaving a memorandum and receipt on such files, containing a short description of the papers so taken." This completes the sections of P. S. c. 151, which by St. 1883, c. 223, § 2, are made applicable to suits in equity in the Superior Court. Following these are the remaining 294 EQUITY PLEADINGS AND PKACTICB. sections of the last-named statute, beginning with § 3, the first two sections having already been given on page 233. PEACTICE. — COURT TO BE OPEN, § 3. " Proceedings, processes, and practice in such cases shall conform, as nearly as may be, to those of the Supreme Judicial Court, and the general rules for the time being of the Supreme Judicial Court for the regulation of practice in equity shall, except as herein otherwise provided, be rules of the Superior Court in the exercise of its equity jurisdic- tion, as far as those rules are applicable. § 4. "For hearings, and making, entering, and modifying orders and decrees in equity causes by a single justice, and issuing writs in such causes, the Superior Court shall be always open in each county, except on holidays established by law ; and all such proceedings shall be deemed to be had in court, and not in chambers, whether the court at the time thereof is sitting or open for other purposes or not." See P. S. c. 151, § 12. By § 23 of that chapter it is pro- vided that a single justice may, when needful, hear and de- termine cases pending in a county other than that in which such justice or court is sitting, or any motion thereon. But it is provided by Chancery Rule 33, that " a hearing in equity shall be held in the county in which the case is pending, if the court is in session therein ; unless otherwise ordered for special cause." See Rule 34 as to hearings before a single justice, except at a term held in the county where the case is pending. ENTRY. — DOCKET, — APPEAL. § 5. " Such suits shall be entered upon the same docket as other cases in the Superior Court. All processes shall be made returnable at the term next after fourteen days from the date of the process, if required to be served fourteen days before the return day ; or at the term next after thirty days STATUTES AND DECISIONS. 295 from such date, if required to be served thirtj'- daj's before the return day ; or at any rule day within three months after the date of the process." Ch. Rule IV. § 6. " After an appeal is taken from a decree in equity of the Superior Court, any justice of the Supreme Judicial Court, or the full court, may by order suspend, on terms or otherwise, the execution or operation of the decree appealed from, pending the appeal, and may modify or annul any order made for the protection of the rights of the parties pending the appeal ; and any such order of a justice of the Supreme Judicial Court may be modified or annulled by the full court upon motion." See P. S. c. 151, §§ 13, 15. § 7. " In cases of appeal from a decree in equity of the Superior Court, the justice by whom the decree was made shall, at the request of the appellant, report the facts found by him as far as material, provided that such request be made within four days after the appellant has been notified of the entry of the decree ; otherwise the granting of such report shall be in the discretion of the justice." As to the reporting of the testimony of witnesses examined orally before a single justice, see P. S. c. 151, § 26. See also Chancery Rule 35, which provides that the evidence intro- duced upon a hearing before a single justice shall not be re- ported to the full court, unless one of the parties, before any evidence is offered, shall request that the same be reported, or the justice shall, for special reasons, so direct. § 8. " If any defendant in a suit in equity in the Superior Court, or any person in his behalf, within thirty days after the day for appearance, makes affidavit of his belief that the matter involved in the suit equals four thousand dollars in value, and that his interest alone or jointly with any other defendant or defendants having an interest jointly or in com- mon with him, equals four thousand dollars in value, and that he has a substantial defence, and of his intention to bring the cause to a hearing, and requests that the cause be transferred 296 EQUITY PLEADINGS AND PEACTICE. to the Supreme Judicial Court, it shall be immediately trans- ferred with the papers therein to that court, at the charge of the party removing the same, and the cause shall proceed as if originally instituted in that court. But before such re- moval the Superior Court may make such orders for the appointment of receivers, and of injunction or prohibition, or for continuing the same in force, as are needful for the pro- tection of the rights of the parties until the suit is heard by the Supreme Judicial Court ; subject, however, to be modi- fied or annulled b}'' the order of that court on motion after the suit has been transferred as aforesaid." This provision for the removal ot suits in equity from the Superior to the Supreme Judicial Court is similar to that for the removal of actions at law. See P. S. c. 150, § 5. § 9. " When it shall appear, upon motion to a single justice of the Supreme Judicial Court, that any suit in equity pend- ing in the Superior Court ought to be heard with a suit or cross-suit in equity pending in the Supreme Judicial Court, the justice may order the first-mentioned suit to be trans- ferred to the Supreme Judicial Court, and such suit shall thereupon be transferred accordingly, at the charge of the party making such application, and the cause shall proceed as if originally instituted in that court." FOEM OP BILL. § 10. " In a suit in equity in the Supreme Judicial or Supe- rior Court, the bill need not contain any address to the court, or the usual commencement, or any prayer for an answer, for general relief, or for process, and the answer need not contain any saving of exceptions to the bill, or any prayer to be dis- missed, or for costs, and a demurrer or plea need not con- tain any protestation or concluding prayer, and the omission thereof shall not affect the rights of the parties respectively. The bill, except when it is actually inserted in a writ, shall be entitled in the proper court, and with the full title of the STATUTES AND DECISIONS. 297 cause containing the names and descriptions of all the parties. Bills, answers, petitions, and other pleadings may be signed by the party or his attorney, and shall not require any other signature. An answer to a bill shall not be sworn to or under seal, except in cases of bills filed for discovery only. The forms in the schedule hereto illustrate the application of the provisions of this section." Under this section the plaintiff will be required to ask specifically for the relief he seeks, and to this specific request it will no longer be necessary to add a general and indefinite prayer for relief. This is but an extension of the rule as it is against all prolixity and repetition, and immateriality and irrelevancy in pleadings, upon which the provisions of P. S. c. 151, § 7, are based. This tenth section of the statute of 1883 repeals so much of P. S. c. 151, § 10, as required an answer to be supported by oath, unless waived by the ad- verse party, and renders unnecessary that portion of Chan- cery Rule 8 which provided that, when a bill shall be filed other than for a discovery only, the plaintiff may waive the necessity of the answer being made on the oath of the defend- ant ; and this portion is omitted in the revised rules of 1884. What is the significance of that clause in this section de- claring that an answer to a bill shall not be under seal, except in cases of bills filed for discovery? The general rule in chancery in England as to answers is, that all answers, except those of peers or others entitled to the privilege of peerage, who answer upon attestation or honor, or of corporations aggregate, which are put in under their common seal, must be upon the oath of the parties putting them in, unless they are Quakers or Moravians, who are allowed to affirm. 1 Daniell's Chancery Practice, (5th Am. ed.) p, 746, and cases cited. In some jurisdictions, in cases against corporations wherein discovery is prayed for in the bill, individual members of the corporation may be called upon to answer to the bill under oath ; but the individuals 298 EQUITY PLEADINGS AND PEACTICE. must first be made defendants in the bill. 1 Johns. Ch. R. 366 ; 1 Paige, 37, 311 ; 10 Ala. 485 ; 18 Gratt. 40. Under the present practice in the Chancery Division of the court in England, it is held to be improper, in a case against a corporation or joint-stock company in which dis- covery is sought, to make an officer of the defendant com- pany a party for the purpose of obtaining discovery from the company, as any member or officer maj'' be ordered to be examined on interrogatories. See Wilson v. Church, L. T. N. s. 413 ; L. R. 9 Ch. D. 552. And the same thing may be done on the equity side of the court here. By P. S. c. 151, § 8, it is provided that in suits in equity either party may file interrogatories for the dis- covery of facts, &c., to be answered by the adverse party in the same manner, &c., as is provided by P. S. c. 167, with reference to interrogatories in civil actions. And by the 53d section of the last-named chapter it is provided that, " if the party to a suit is a corporation, the opposite party may examine the president, treasurer, clerk, or any director or other officer thereof, in the same manner as if he were a party to the suit." As the statutes and practice existing prior to the pas- sage of St. 1883, c. 223, did not require the answer of an individual defendant to be under seal, and as that was the usual and perhaps only proper way for a corporation aggre- gate to answer, the reason for the provision, in the section under consideration, that an answer shall not be under seal, except in bills for discovery, does not very clearly appear. For in a suit for discovery against a corporation, sealing the answer does in no manner aid the discovery, for that is to be sought upon interrogatories to the members or officers of the corporation. And in an equity suit against a cor- poration, in which no discovery is sought, if the statute is to be literally followed, the answer of the corporation is neither to be sworn to nor under seal. It would seem that STATUTES AND DECISIONS. 299 this particular provision might as well have been altogether omitted. COMMENCEMENT OF SUIT, ETC. § 11. " When a suit in equity is commenced by filing a bill in either of said courts, the plaintiff may, at his election, take out a writ of summons and attachment, or a trustee process, instead of a writ of subpoena." This section does not provide a new mode of commencing a suit in equity, but a new means of attaching the property of the defendant. Under P. S. c. 151, § 5, when the plain- tiff proposed to make an attachment of defendant's property, he was required to insert his bill or petition in an original writ of summons and attachment, while by this eleventh section he may file his bill in court and take out a separate precept for making an attachment. § 12. " No justice of the Supreme Judicial Court or of the Superior Court shall dissolve an injunction issued by the other court, or a justice thereof, or interpose in any pro- ceeding in the equity jurisdiction of the other court, except as provided for in the sixth, seventh, and ninth sections of this act." VENUE or SUITS. § 13. " Suits in equity in the said courts may be brought in any county where a transitory personal action between the same parties might be brought, as well as where such suits may be brought under the laws now in force." The statutory provisions respecting the venue of actions will be found in P. S. c. 161, §§ 1-12. Suits for the redemp- tion from levy are, by the provisions of P. S. c. 172, § 40, to be brought in the county where the land lies ; for redemp- tion of mortgages, the suits are also to be in the county where the land is situated. P. S. c. 181, § 31. In Bradstreet v. Butterfield, 129 Mass. 341, 342, the court say, " The provisions of the statutes conferring general juris- 300 EQUITY PLEADINGS AND PEAOTICE. diction in equity upon the court do not usually direct in what county suits in equity shall be brought, but leave that question to be determined by the nature of the subject matter, the analogies to be derived from actions at law, and the practice of courts." See also Davis v. Parker, 14 Allen, 98. Under this thirteenth section the county in which a bill in equity, in any given case, may be brought, may be readily determined by reference to the provisions of law fixing the venue of transitory personal actions. EQUITABLE DEFENCE. § 14. " In actions at law in the said courts, the defend- ant shall be entitled to allege as a defence any facts that would entitle him in equity to be absolutely and uncondi- tionally relieved against the plaintiff's claim or cause of action, or against a judgment obtained by the plaintiff in such action; and the plaintiff shall be entitled to avail himself, in answer to any defence alleged by the defendant, of any facts that would avoid such defence in equity, or would entitle the plaintiff to be absolutely and uncondi- tionally relieved in equity against such defence." This section follows closely the provisions of an English statute passed in 1854, and which has been in force there ever since. It is designed to promote speedy and exact justice. If a party has an equitable answer to his adversary's claim, instead of being compelled to resort to a suit in equity, he may at once set the matter up in the action at law, and thus have the whole subject of the contention between the parties settled in a single suit, and in the court where the suit was commenced and is pending. This single provision of the statute can hardly fail to bring about highly important changes in the practice of both courts. It will make the administration of justice more direct and efficacious, and less expensive to parties who STATUTES AND DECISIONS. 301 are compelled to resort to the courts for the vindication of their rights and redress of their wrongs. FEIVOLOXJS EXCEPTIONS. — COSTS. § 15. " If upon the hearing of an appeal or exceptions by the full court, whether in an action at law or suit in equity or other proceeding, it appears that the appeal or excep- tions are frivolous, immaterial, or intended for delay, the court may, either upon motion or without any motion there- for, award against the appellant or party taking exceptions double costs from the time when the appeal or exceptions were taken, and interest from the same time at the rate of twelve per cent by the year on any sum which has been found due for debt or damages, or which he has been ordered to pay, or for which judgment has been recovered against him, or the court may award any part of such additional costs and interest." This is substantially the same as P. S. c. 151, § 14. In the case of Ames v. Stevens, 120 Mass. 218, which was before the full court on appeal, the court held the appeal frivolous, but said the plaintiffs motion for double costs could not be allowed because the statute upon that subject is limited to exceptions and does not extend to appeals. Upon overruling frivolous exceptions, double costs are not allowed unless moved for. Norris v. Lynch, 121 Mass. 686. Whether the exceptions are or are not frivolous is for the court to decide upon the bill of exceptions, without other evi- dence or argument by either party. Blackinton v. Johnson, 126 Mass. 21. ISSUES OF FACT FOE JUKY. §16. "The Superior Court may frame issues of fact to be tried by a jury in an equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending." 302 EQUITY PLEADINGS AND PEACTICB. See p. S. c. 151, § 27. An appeal to the full court lies from an interlocutory order by the court refusing to submit an issue to the jury. 120 Mass. 281. But exceptions to such refusal will not be sustained. 103 Mass. 499. See 137 Mass. 483. As long ago as 1828, Parker, C. J., said, in giving the opinion of the court in the case of Charles River Bridge v. Warren Bridge, 6 Pick. 399, that, if the effect of an act of the Legislature granting equity jurisdiction to the court ■was to deprive a party of his right of trial by jury, the act itself would be void, for the Legislature cannot ordain a process by which controversies respecting property shall be ultimately decided without a trial by jury. AMENDMENTS. § 17. " Whenever an amendment is allowed in the Supe- rior Court under the provisions of section forty-three of chapter one hundred and sixty-seven of the Public Statutes changing an action at law into a suit in equity or a suit in equity into an action at law, the Superior Court shall retain jurisdiction of said cause. And in all proceedings in the Supreme Judicial Court or the Superior Court no action or suit shall be defeated on the ground that there is an ade- quate remedy at law, or that the relief sought can only be obtained by a suit in equity, but such proceeding, whether at law or in equity, shall at any time before final judgment be amendable at the discretion of the court, and may be amended upon such terms as the court may determine." It constitutes no valid objection to allowing an amend- ment, that, if not allowed, the plaintiff could not upon nonsuit successfully prosecute a new suit because of the Statute of Limitations. Shaw, C. J., in Davenport v. Hol- land, 2 Cush. 1, says it has often been held to be a good reason for granting amendments on terms, instead of non- suiting a party and compelling hira to bring a new action, STATUTES AND DECISIONS. 303 that such action would be barred by the Statute of Limi- tations. He also said that the provisions of law allowing amendments are highly remedial, and are construed most liberally to correct error and mistake, and to advance jus- tice and right. Loring v. Salisbury Mills, 125 Mass. 138; Mears v. Dole, 185 Mass. 508. There are in the English Judicature Act of 1873 provis- ions, similar to that contained in this seventeenth section, for allowing amendments in proceedings at law and in equity. And the courts there seem disposed under those provisions to allow the widest range to all amendments necessary to work out justice between parties before the court. In Budding v. Murdock, L. R. 1 Ch. D. 42, the Master of the Rolls said that the case now set up by the plaintiff was not raised hj the bill ; and if the suit had come to a hearing before the recent act, the question whether the plaintiff should be allowed to amend would have required great consideration. Under the circumstances he thought the new practice ought to be applied, and that the plain- tiff ought to have liberty to amend. In King v. Corke, L. R. 1 Ch. D., upon the cause coming on for hearing, the plaintiff was allowed to amend ; Bacon, V. C, saying, "In the case before me, the evidence sug- gests — I do not say proves — that the plaintiff would have a case for charging the defendant with wilful default, and the plaintiff desires to put the record into such shape as will enable him to make that particular charge. I must say I think I should be doing violence to this act of Par- liament if I were not to give the plaintiff this leave ; but the permission must be carefully guarded." (Page 60.) In Roe V. Davies, L. R. 2 Ch. D., there was a motion by the plaintiff to amend after the case was set down for hearing, and the motion was allowed. The Vice-Chancellor said : " Great care, no doubt, is requsite in the construction of every part of this new Judicature Act ; and it would be 304 EQUITY PLEADINGS AND PEACTICB. difficult to find a more extensive alteration in the practice of the courts than is effected by the order which has been read. A very extensive authority has been conferred on the court to alter the statement of claim at any stage of the proceedings, without any limitation except the discretion of the judge. I feel that I am bound to see that the record is put into shape, which is necessary in order that the issue between the parties may be fairly tried ; and the fact that the case is ready for a hearing does not prevent my doing this." In another case it is said by the court, that, when specific performance is refused on the ground of mistake, so that under the old practice a bill for specific performance would have been dismissed without prejudice to an action, the court will proceed to consider the question of damages, and that the court in such case ought to give the same damages as would, under the old practice, have been given in an action at law. Tamplin v. James, L. R. 15 Ch. D. 215 ; 43 L. T. N. s. 520. Notwithstanding this almost unlimited right of amendment to pleadings in suits at law and in equity, still the distinc- tions between legal and equitable remedies must continue to be observed and carefully studied ; for although the statute declares that a suit in equity shall not be defeated because the party has an adequate remedy at law, and that a plain- tiff in an action at law shall not be nonsuited because the relief he seeks can only be obtained under proceedings in equity, yet it will be necessary for the pleader to under- stand the principles both of equity and common-law plead- ings, to enable him to prepare the appropriate amendments, if his original pleadings prove to be defective. STATUTES AKD DECISIONS. 305 Section II. — Miscellaneous Subjects over which the Supreme Judicial Court has Jurisdiction in I]quity, hy virtue of the special provisions of the following Statutes. Some of the proceedings authorized by these statutes are not, strictly speaking, proceedings in equity, but are of a kin- dred character, and are given here as matter of convenience. LAND SOLD FOE TAXES. P. S. c. 12, § 66. In all cases of taking or sale of real estate for the payment of taxes assessed thereon, the Supreme Judicial Court shall have equity powers, if relief is sought within five years from the taking or sale. The powers in equity named in this section were first con- ferred upon the court by St. 1856, c. 238, § 4. Before the passage of that statute it had been decided, in Mitchell v. Green, 10 Met. 101, that the court had no jurisdiction in equity for the redemption of land sold for the payment of taxes. Under this statute a party occupying land (he having a bond for a deed from the owner) can maintain a bill in equity to compel a purchaser of the premises, at a sale for non-payment of taxes, to release his title to him. Rogers v. Rutter, 11 Gray, 410. If land subject to a recorded mortgage be assessed to a per- son not the lawful owner, and afterwards sold for taxes, and the mortgagee, without knowledge of the sale, assigns the mortgage, the assignee may maintain a bill in equity under this statute within two years after notice of the sale and within five years from the date of the sale. 98 Mass. 44. P. S. c. 19, § 5. In all cases where the Commonwealth has the right, by its agents and at the expense of the party at fault, to enter upon premises and remove or alter a build- ing, or a portion thereof, by virtue of the agreements or stipulations in a deed or deeds given in its name, all grantees under such deeds and their legal representatives and assigns 20 306 EQUITY PLEADINGS AKD PEACTICE. shall have the right by proceedings in equity to compel the said board (of harbor commissioners} so to enter and remove or alter such building or portion thereof. The Supreme Judicial Court shall have full jurisdiction of such proceed- ings, and shall have full power to make such orders and decrees as justice and equity may require to make the rights hereby granted effectual, and the Attorney General shall in all such proceedings appear for said board and attend to the interests of the Commonwealth. Linzee v. Mixer, 101 Mass. 512. TELEGRAPH LINES, ETC. P. S. c. 27, § 48. The Supreme Judicial Court, or any justice thereof, in term time or vacation, may enjoin the construction of telegraph and telephone lines within the limits of any town, when such construction is carried on in violation of regulations established by the selectmen. UNLAWFUL APPROPRIATION OP MONET BY TOWNS. P. S. c. 27, § 129. When a town votes to raise by taxa- tion or pledge of credit, or to pay from its treasury, any money for a purpose other than those for which it has the legal right and power, the Supreme Judicial Court may, upon suit or petition of not less than ten taxable inhabitants thereof, briefly setting forth the cause of the complaint^ hear and determine the same in equity. Any justice of said court in term time or vacation may issue injunctions, &c. to prevent the violation of such right and power before the final determination of the cause by the court. This section is derived from St. 1847, c. 37, which first gave the court equity jurisdiction in this class of cases. In Tash v. Adams, 10 Cush. 252, the court refused to entertain a bill to restrain the payment of money illegally voted by the town, because the plaintiffs had been guilty of laches and knowingly permitted others to incur liabilities. STATUTES AND DECISIONS. 307 relying upon the appropriation. Where the plaintiffs were guilty of no laches in commencing proceedings, the court sustained a bill praying that a town might be restrained from appropriating money for the celebration of the Fourth of July. Hood V. Lynn, 1 Allen, 107. A delay of ten months in the commencement of proceed- ings under this provision of the statute was held to be such laches as to forfeit all right to equitable relief. Fuller v. Melrose, 1 Allen, 166. The equity powers of the court under this section authorize the court to compel, by decree, the restoration of money with interest to the treasury of a town which has been paid out for illegal purposes by the officers of the town, under a vote of a majority of the in- habitants of the town. Frost v. Belmont et al., 6 Allen, 156. The court will not enjoin the collection of a town tax " for contingencies," if the purpose for which the money was wanted was stated orally in the town meeting when the appropriation was made, and no objection was made at the time, and the money was raised for necessary expenses of the town, and the town had been in the habit many years of raising money in that form. Freeland v. Hastings, 10 AUen, 570. Money lawfully in the treasury and having become the money of the town, though derived from the profits of fisheries in a certain river within the town, cannot legally be paid out upon a vote of the town " that the money be distributed on the polls." And the court will restrain such payment or distribution by injunction. Allen v. Marion, 11 Allen, 110. The suit to restrain the payment by a town of money for an unlawful purpose need not necessarily be commenced till the money is about to be paid ; and therefore delays after the money had been voted, but before it had actually been paid out, will not defeat the suit. Carlton v. Salem, 103 Mass. 141 ; Copeland v. Huntington, 99 Mass. 529. A town 308 EQUITY PLEADINGS AND PKACTICE. has not the right to raise money by taxation to support a school, as a public school, which was founded by a chari- table bequest that vests the superintendence of the school in trustees, though a majority of the trustees are to be chosen by the town, but are limited to be members of cer- tain religious societies. Jenkins v. Andoyer, 103 Mass. 94. An order of a city council for altering the grade of a highway can be impeached only by a petition for a writ of certiorari, and not collaterally by a petition in equity to restrain the appropriation and payment of money under the order. Fisk v. Springfield, 116 Mass. 89. TEADE-MAEKS. P. S. c. 76, § 7. The Supreme Judicial Court may restrain by injunction the use of trade-marks in violation of the pro- visions of this chapter. To maintain a bill in equity under this section it is neces- sary to allege in the bill, and prove, that the purpose of the false representation is to lead to the belief that the goods were manufactured by the plaintiff. Ames v. King, 3 Gray, 379. See Bowman v. Floyd, 3 Allen, 76, as to the right of executors to maintain a bill for restraining the use of their testator's name. HOSPITAL, — BUILDINGS USED FOR. P. S. c. 80, § 73. The Supreme Judicial Court in term time or vacation may issue injunctions to prevent the occu- pancy of any building for a hospital (for the treatment of dangerous diseases) in any part of a city or town prohibited by the mayor and aldermen or selectmen. BUn^DINGS UNAUTHOEIZED, — ERECTION OP, ENJOINED. P. S. c. 102, § 39. The Supreme Judicial Court, or a justice thereof, in term time or vacation, may issue injunc- STATUTES AND DECISIONS. 309 tions to prevent the erection or use of any building for a stable for more than four horses, in any places not author- ized by the mayor and aldermen or selectmen. P. S. c. 104, § 12. The Supreme Judicial Court, or a justice thereof, in term time or vacation, may by injunction or other suitable process in equity restrain the construction, alteration, maintenance, or use of any building or structure in violation of any ordinance or by-law of a city or town, and may order the abatement thereof as a nuisance. RAILEOADS, — TRUSTEES OP, ETC. P. S. c. 112, § 70. The Supreme Judicial Court shall have full equity jurisdiction, according to the usage and practice of courts of equity in relation to the proceedings of trustees in possession of a railroad under mortgage, &c., and of all questions arising out of railroad mortgages, and may in a summary manner remove trustees, &c. The Commonwealth cannot be sued in its own courts except by its own consent manifested by an act of the legis- lature. And the court had no jurisdiction of a bill for re- demption brought by a railroad company that had mortgaged its road to the State. 127 Mass. 43. § 104. Also may by injunction or other suitable process in equity prohibit and restrain a railroad corporation from entering upon or using property taken under a statute which does not make adequate provision for compensation for the property taken. Conn. R. R. Co. v. County Commissioners of Franklin County, 127 Mass. 50. EAILEOAD CROSSINGS. § 117. Also shall have jurisdiction in equity to compel railroad corporations to comply with all orders, decrees, and judgments of the board of county commissioners in relation to the crossings of the tracks of two or more railroads. 310 EQUITY PLEADINGS AND PRACTICE. § 118. Also as to the crossings ou the same level of one railroad with another, or over navigable waters. §§ 120, 121. Also as to. railroad crossings over public high- ways. § 136. The Supreme Judicial Court may by proceedings in equity compel railroad corporations to raise or lower a highway, when the county commissioners have decided that the public security requires it. Under the original act (St. 1849, c. 222) from which this section is derived, it was held that a bill in equity to enforce its provisions should be in the name of the mayor and alder- men or selectmen, and could not be maintained by an indi- vidual inhabitant, although he was the owner of the land over which the way is located. Brainard v. Connecticut River R. R. Co., 7 Cush. 506. § 162. The court may also issue any process necessary to secure the enforcement of regulations to be observed where two railroads cross each other at the same level. § 168. The court may also by suitable process in equity compel railroad corporations to comply with orders and de- cisions of mayor and aldermen and selectmen in relation to railroad crossings, within the limits of cities and towns. SALE OF LAND CHARGED WITH PAYMENT OE MONEY, ETC. P. S. c. 120, § 22. The Supreme Judicial Court sitting in equity in the county where the land lies, may decree sale of land subject to the payment of annuities. STREET RAILWAYS. P. S. c. 113, § 63. The Supreme Judicial Court shall have full equity powers to compel the observance of all laws governing street railway companies, and of all orders and regulations duly made by aldermen of cities and selectmen of towns, to be observed by such railways. STATUTES AND DECISIONS. 311 INSOLVENT BANKS, ETC. P. S. c. 116, § 6. Any justice of the Supreme Judicial Court may, upon tlie application of the bank commissioners, issue injunctions to restrain insolvent banks from transacting business. § 38. If savings bank holding trust funds surrenders its charter or ceases to do business, the Supreme Judicial Court may order the funds to be transferred and deposited in some other such corporation upon the same trusts. • SALE OF LAND SUBJECT TO CONTINGENT REMAINDERS. P. S. c. 120, § 19. The Supreme Judicial Court may, where real estate is subject to a contingent remainder, ex- ecutory devise, or power of appointment, upon proper pro- ceedings had, order the sale of such real estate, or may authorize the same to be mortgaged, on such terms and for such purposes as the court may deem judicious and expe- dient. Bamforth v. Bamforth, 123 Mass. 283 ; Whitconib v. Tavlor, 122 Mass. 243. STANDING "WOOD AND TIMBER. P. S. c. 126, § 12. Where it appears that wood and tim- ber, standing on land the use and improvement of which belong, for life or otherwise, to. a person other than the owner of the fee therein, have ceased to improve by growth or ought for any cause to be cut, the Supreme Judicial Court may authorize that to be done, and may appoint a trustee to sell the same and hold the proceeds of the sale in trust for the proper parties. MATTERS ARISING UNDER "WILLS, ETC. P. S. c. 127, § 34. The court may hear and determine all questions and matters arising under wills and other instru- ments. P. S. c. 141, §§ 5, 6 ; Murray v. Dehon, 102 Mass. 11. 312 EQUITY PLEADINGS AND PRACTICE. COURTS OF INSOLVENCY. P. S. e. 157, § 15. The Supreme Judicial Court shall have a general superintendence and jurisdiction of all cases arising under this chapter ; and except where special pro- vision is otherwise made may, upon the bill, petition, or other proper process of any party aggrieved, hear and deter- mine the case as a court of equity. This chapter relates to courts of insolvency and insolvency proceedings. A bill in equity under this section, filed more than a year after it might have been filed for the relief sought, was held to be too late, and was dismissed. Conant v. Perkins, 107 Mass. 79. A bill in equity will lie under this section to set aside proceedings in insolvency in invitum against an infant who was not, in the proceedings in insolvency, represented by a guardian ad litem, on the ground tliat the proceedings were void. And it was held that the bill could be main- tained by a creditor of the infant, who had attached his estate in a suit against him to set aside the proceedings. Farris v. Richardson, 6 Allen, 119. If an insolvent debtor has been prevented by fraud from obtaining his discharge, and the time for an appeal has gone by, without laches on his part, he may maintain a bill in equity for relief under this section. Foster v. Lamb, 6 Allen, 561. The court has power under this section to revise and correct the decisions of a judge of insolvency as to mat- ters of fact, and in the exercise of this power may allow the parties to introduce new evidence. Lancaster v. Choate, 5 Allen, 530. Lincoln v. Bassett, 9 Gray, 355. This was a bill in equity, filed by an insolvent debtor to compel his assignee to render an account, and to set aside the proceedings in insolvency, more than six years after those proceedings were commenced, STATUTES AND DECISIONS. 313 the debtor without objection having appeared at several meet- ings of his creditors and submitted to an examination. Held, that the bill could not be maintained for either of the purposes named. A creditor of an insolvent debtor, who has attached his property after the commencement of proceedings in insol- vency, and before the assignment, has sufficient interest to maintain a bill in equity to set the proceedings aside. Mer- riam v. Sewall, 8 Gray, 316. When the preliminary proceedings in insolvency are irregu- lar, a creditor whose rights are affected may maintain a suit in equity to arrest the proceedings and set aside the assign- ment. Hanson v. Paige, 3 Gray, 242 ; Penniman v. Free- man, 3 Gray, 248. Under this section the court, as a court of equity, may order the proof of a fraudulent claim against the estate of an insolvent debtor to be expunged. The statute giving the court jurisdiction in equity in all cases arising under the insolvent laws, the power to expunge proof of claims passed as incident to such jurisdiction. Hill v. Hersey, 1 Gray, 586. A creditor of an insolvent debtor may apply to the court, exercising chancery powers under St. 1838, c. 163, § 18, (P. S. c. 157, § 15,) to have a lien claimed by him declared in his favor, without proving his debt against the estate. Massachusetts Iron Co. v. Hooper, 7 Cush. 183. REDEMPTION OP LAND TAKEN ON EXECUTION. P. S. c. 172, § 40. Suits for redemption of lands levied on in satisfaction of judgments may be brought in the Supreme Judicial Court. The suit should be commenced within one year after the land has been set off on the exe- cution. Houghton V. Field, 2 Cush. 141. 314 EQUITY PLEADINGS AND PRACTICE. EESERVOIES AND DAMS. P. S. c. 190, § 58. This relates to reservoirs and dams, and the section cited provides that the Supreme Judicial Court shall have jurisdiction in equity, and may make all judgments and decrees necessary to carry into effect the provisions of this chapter to insure the safety of reservoirs and dams. REMOVAL OF CLOUD PROM TITLE TO REAL ESTATE. P. S. 0. 176. Parties in possession of real property, claim- ing an estate of freehold therein or an unexpired term of not less then ten years, may file a petition in the Supreme Judi- cial Court, calling on any other parties claiming title to the same property to show cause why they should not bring an action to try their title. And the court is authorized upon such petition to order the supposed claimants to bring such action, and in default of so doing the court may make a de- cree that shall bar them from having or claiming any right or title adverse to the petitioners. A citizen of another State or country will not be ordered to bring a suit to try his title to real estate in this Common- wealth. It is the well-settled practice not to compel a party resident out of the Commonwealth to bring suits in the State courts. Macomber v. Jaffray, 4 Gray, 83. The peti- tion under this section can be maintained only by a party in actual possession, and taking the profits of the land. Munroe v. Ward, 4 Allen, 150 ; Clouston v. Shearer, 99 Mass. 209. Sullivan v. Finnegan, 101 Mass. 448. This was a bill in equity by the occupant of one part of a house against the occupant of the other part, the defendant having been per- mitted by the plaintiff to enter into possession of that part, and, being in, the defendant then claimed title to the whole house under a deed which the plaintiff claimed was a forgery. STATUTES AND DECISIONS. 315 The court say, " The plaintiff cannot maintain a writ of en- try to try her title to the rooms, without abandoning her possession ; and therefore she may maintain this bill to remove the cloud from her title." A party claiming an estate in remainder, after an existing life estate, cannot under this section of the statute be re- quired to bring an action to try his title. Tisdale v. Bra- brook, 102 Mass. 374. The petitioner in a proceeding under this section must show that he has an exclusive and ad- verse possession, which works a disseisin of the respondent. Tompkins v. Wyman, 116 Mass. 558. See also 117 Mass. 504 ; Bowditch v. Gordon, 113 Mass. 315. One who maintains a dam under the mill acts has not such an easement in the flowed lands as will enable him to maintain a petition under this section against the land- owner, to compel him to bring his action to try the title. Boston Manufacturing Co. v. Burgin, 114 Mass. 340. A party in possession of real estate, claiming a fee, may maintain a bill in equity against a purchaser under a void sale by a collector of taxes, and who has caused his deed from the collector to be recorded, and refuses to release to the plaintiff, and claims to be the owner of the land. Rus- sell V. Deshon, 124 Mass. 344. P. S. c. 179, § 12. The court issues an injunction to stay waste during the pendency of suit in which real estate is attached. See §§ 13, 14. The court may require bonds of the plaintiff to pay all damages arising from the issuing of the injunction, if the injunction should be dissolved, and may order the defendant arrested if he violates the injunction. TJNDISCHAKGED MORTGAGES. St. 1882, c. 237. When a mortgagor and those having his estate in the premises have been in uninterrupted pos- session of such estate for twenty years after the expiration of the time limited for the full performance of the conditions 316 EQUITY PLEADINGS AND PEACTICB. of the mortgage, yet the mortgage remains undischarged, the party having the estate may apply to the Supreme Judicial Court by petition, and, after proper proceedings, the court may enter a decree, which being recorded within thirty days in the registry of deeds, no action shall thereafter be brought by any person to enforce a title under said mortgage. So far as any of the subjects enumera;ted in this chapter furnish " matters in which relief or discovery in equity is sought," they would seem to be included within the con- current jurisdiction of the Superior Court, by virtue of the provisions of St. 1883, c. 223, § 1. It is clear that the pro- ceedings contemplated by the several statutes referred to in this chapter must partake of the character of proceedings in equity, and that the orders, decrees, and judgments mak- ing parts of those proceedings must necessarily be such as a court of equity alone can make or grant. The fact that the powers named in these statutes are con- ferred upon the Supreme Judicial Court, is not at all decisive of this question of jurisdiction in the Superior Court; for that is the form of nearly every statute granting equity jurisdiction passed by our Legislature. But a further dis- cussion of this subject may well be postponed until it can be resumed before the only tribunal that can give an authori- tative construction to this statute.^ 1 Prior to the passage of St. 1883, c. 223, suits for redemption of mort- gages could be brought in the Superior Court (P. S. c. 181, §§ 31-41); also for redeeming lands set of£ or sold on execution (P. S. c. 172, §§ 31- 42); and also lands sold for taxes and other assessments (P. S. c. 12, § 49; c. 51, § 17). That court was also authorized to issue injunctions in a variety of cases named in the statutes. P. S. c. 53, § 17; c. 80, § 26; c. 102, § 44. APPENDIX. A. SCHEDULE OF FOEMS. COMMENCEMENTS OF BILLS IN SPECIAL CASES. 1. A. B. of a lunatic [^or non compos mentis] by E. F. of his guardian [or next friend, when the plaintiff is of un- sound m,ind, hut not so found hy inquisition']^ [or committee of the person and estate of the said A. B.,] shows that, etc. 2. A. B. of an infant under the age of twenty-one years, by E. F., his next friend. 3. A. B. of assignee of the estate and effects of C. D. of an insolvent debtor. 4. A. B. of on behalf of himself and all other unsatisfied creditors of E. F. of who shall come in and contribute to the expenses of this 5. Attorney General in behalf of the Commonwealth. Informing, showeth G. M., Attorney General of the Common- wealth of Massachusetts, in behalf of said Commonwealth, etc. 6. Informing, showeth G. M., of Attorney General of at and by the relation of A. B., C. D., and E. F., of for and in behalf of themselves and the rest of the citizens of in the county of 318 APPENDIX. 7. Information, and Bill. Informing, showeth G. M., Attorney General of at the relation of A. B. and C. D., of and also the said A. B. and C. D., say that, etc. 8. Suit by an JExecutor, etc. A. B., of in the county of executor of the last will and testament of C. D., late of in the county of physi- cian, deceased, saj's that the said C. D. in his lifetime, etc. 9. By a Shareholder in hehalf of himsdf and others. A. B., of on behalf of himself and all other the share- holders (except the defendants hereto) in a certain company called, etc. II. FORMS OF BILLS. 1. Bill for .Redemption.^ In the Cobbt. ss. Between A. B. of in the county of and C. D. of in the county of Plaintiffs, and E. F. of in the county of Defendant. Bill of Complaint. 1. By a deed of mortgage dated the 1st of May, 1872, and recorded with Deeds, book , page , the plaintiffs conveyed to the defendant, in fee simple, a certain piece of land, situate, etc. [description], subject to redemption upon the plaintiffs, their heirs, executors, administrators, or assigns, paying to the 1 This form of Bill, Answer, and Demurrer is contained in the St. of 1888, c. 223. FORMS OF BILLS. 819 defendant, his executors, administrators, or assigns, the sum of three thousand dollars in three years from the date of the said deed, with interest thereon at the rate of six per centum by the year, payable half-j-earlj-. 2. Default was made in payment of the said principal sum, but the said interest was duly paid up to the 1st of May, 1875. 3. On or about the 15th of June, 1875, the defendant took pos- session of the premises comprised in the said mortgage, and has ever since continued in possession and in receipt of the rents and profits of the said premises. 4. On or about the 19th of October, 1881, the plaintiffs requested the defendant to render an account of the amount due on the said mortgage, but the defendant refused to do so. 5. The plaintiffs offer to pay to the defendant what shall be found due on the mortgage. The plaintiffs pray, — - 1. That an account maj' be taken of what is due to the defend- ant for piincipal and interest on the said mortgage ; 2. That an acbount may be taken of the rents and profits of the said premises which have been received by the defendant or by any other person by his order or for his use, or which might but for his wilful default have been so received, and that what shall appear to be due to the plaintiffs in taking the account of rents and profits be deducted from what shall appear to be due to the defendant for principal and interest ; 3. That it may be decreed that, upon the plaintiffs paying to the defendant the sum (if any) which shall so be found due upon the mortgage, the plaintiffs shall have possession of the premises com- prised in the said mortgage, to hold the same discharged of the said mortgage. L. M., Solicitor for the Plaintiffs. Answer. In the CotTRT. ss. A. B. and another vs. E. F. 1. This defendant admits the allegations contained in the 1st, 3d and 4th paragraphs of the plaintiff's bill. 2. This defendant admits that the interest upon the said mort- gage was duly paid up to the 1st of November, 1873 ; but he denies that it was paid up to any later time. 320 APPENDIX. 3. Default was made in payment of the principal sum secured by the said mortgage and the interest thereon ; and on the 15th of June, 1875, after the said default, this defendant made an open, peaceable, and unopposed entry on and took possession of the premises comprised in the said mortgage, for the purpose of fore- closing the right of redemption thereof; and a certificate of two competent witnesses to prove the said entry was dulj- made and sworn and recorded in the Registry of Deeds for the said countj' of , within thirty days from the said entry. 4. The possession so obtained by tliis defendant was continued peaceably for more than three years before the commencement of this suit. J. S., Solicitor for the Defendant. Demdbrer. In the CoueTi. ss. Gr. H. vs. T. L. and others. Demurrer [or. Demurrer of T. L. and R. C, two of the De- fendants]. The defendants [or, These defendants] demur to the plaintiffs bill and for causes of demurrer show, — 1. That the plaintiff has not stated such a case as entitles him to any relief in equity against these defendants, or either of them ; 2. That, etc. J. S., Solicitor for the [or the said too] Defendants. I certify that this demurrer is not intended for delay. J. S. 2. £iU to reform a Conveyance by correcting a Mistake in a Soundary. (a.) That on the day of 188 , the defendant executed and delivered to the plaintiff, under his hand and seal, a deed, of which the following is a copy. \_Give copy .] All that certain lot, etc., beginning at a point, etc., running thence easterly along A Street feet, thence southerly along B Street feet, thence westerly and parallel to C Street feet, thence southerly and parallel to D Street feet to the place of beginning. F0EM3 OF BILLS. 321 (5.) That the description therein given of the premises intended to be conveyed was erroneous, and in fact does not describe any premises whatever; that the word "southerly," as last used in said description, was entered by mistalse of the parties to the said deed, [or otherwise, or, if fraud is relied upon, the circum- stances of it should he specifically stated,'] instead of the word "northerly," which should have been used instead thereof; and in order to make said deed pass anj' premises whatever to the plaintiff, and to make it conform to the actual intention of the parties, it is necessary that the said description should be rectified and reformed by substituting the word "northerly" for the word " southerly," where the latter word is last used therein. (c.) That the plaintiiF has paid to the defendant for the said premises the consideration expressed in said deed. {Prayer that the deed may be reformed, etc.^'\ 3. For form of a BiU to restrain Disclosure or Use of a secret Process of Manufacture, see Peabody v. Norfolk, 98 Mass. 452. 4. Creditor's Pill against a Corporation and its Stockholders under P. S. c. 106, § 64. For form of bill, see Essex Company «. Lawrence Machine Shop, 10 Allen, 352 ; Erickson v. Nesmith, 46 N. H. 371. 5. Bill to annid a Contract for Fraud. See Commercial Mut. Ins. Co. V. McLoon, 14 Allen, 351. 6. Bill to reform a Policy of Insurance in conformity with a previously concluded Agreem,ent for Insurance. See Oliver «. The Mut. Com. Mar. Ins. Co., 2 Curtis, 227. 1 The mistake must be made out according to the understanding of both parties. Sawyer v. Hovey, 3 Allen, 331; Cassidy v. Marcy, 18 Gray, 373; Andrew o. Spurr, 8 Allen, 412. 21 322 APPENDIX. 7. JBill for Specific Performance In the Court. ss. Between A. B. of in the county of PlaintifE, and . C. D. of in the county of Defendant. Bill of Complaint. (a.) In and previously to the month of June, 188 , the plaintiff was absolutely entitled to a certain estate, etc., situate at in the county of (J.) On the day of June, 188 , the defendant agreed to pur- chase the said estate ; and a memorandum of such agreement was reduced into writing, and duly signed bj^ the defendant. Such mem- orandum was in the words and figures, or to the purport and effect following. \_Memorancl/u'm set out.'] (c.) The plaintiff has frequently applied to the defendant, and requested him to perform the said agreement, but he has refused or neglected to do so. Peatek. The plaintiff prays as follows : — (a.) That the defendant may be decreed specifically to perform said agreement of the said da}' of June, 188 , the plaintiff hereby offering specifically to perform the said agreement on his part ; and that for the purposes aforesaid all proper directions may be given and inquiries made. (b.) That there may be an assessment of the damages sustained by the plaintiff by reason of the defendant's neglect to perform his said agreement. E. F., Solicitor for Plaintiff.^ 1 It has already teen shown that, by St. 1883, c. 223, § 10, the bill in a suit in equity need not contain any address to the court, or the usual commencement, or any prayer for an answer, for general relief, or for process ; but that when not inserted in a writ it sliall be entitled in the proper court and with the full title of the cause containing the names and description of all the parties. The title of the suit is a collection of the names of the plaintiffs as they appear in the introductory part of the bill, and of the defendants as they are set forth in their proper order. FORMS OP BILLS. 323 8. Another form of Bill for Specific Performance. Essex ss. In Equity. John Lee, Plaintiff, Henry Jones, Defendant. Bill of Complaint. (1.) The said Henry Jones, by an agreement in writing, dated on the day of by him signed, a copy of which is annexed to this bill, marked agreed to purchase of the said John Lee, the plaintiflF, [or sell to him, as the case m,ay be'] a certain parcel of real estate situate in and bounded and described as follows : in the said agreement referred to, for the sum of [Insert the description.'] (2.) The plaintiff has always been read}', and has offered and now offers specificall}' to perform the said agreement on his part. (3.) The plaintiff has made or caused to be made an application to the said Henry Jones specifically to perform the said agi'eement on his part, but said Jones has not done so. The plaintiff therefore pra3-s as follows : — (1.) That this court will declare that the plaintiff is entitled to a specific performance and execution of said agreement, and will decree the same according^. (2.) That the court will decree to the plaintiff his costs of this suit. (3.) That the plaintiff may have such further and other relief as the nature of his case requires. (4.) That for the purposes aforesaid all proper inquiries may be made, accounts taken, and directions given. (5.) That a writ of subpoena maj- issue out of this court, directed to the said Henrj' Jones, commanding him to be and appear before this court to be holden, etc. on the daj- of and under a fine therein specified, and then and there full, true, direct, and perfect answer make to all and singular the premises, and further be held to perform and abide such further order, direction, and decree therein as to this court shall seem meet.' ' It will be noticed that the statute last referred to does not declare that the bill shall not contain any address to the court, the usual commencement, prayer for answer, for general relief, or for process, but only that it need not. 324 APPENDIX. 9. £iU for Specific Performance of an Agreement to convey Heal Estate against an Administrator and Minor Children. C. D. of, etc., being seised and possessed of a certain parcel of real estate, situate, etc., [describe t<,] entered into a written agree- ment with the plaintiff for the purchase and sale thereof, as follows, viz. (state the agreement, or, a copy of which agreement is hereto annexed), as by the agreement which the plaintiff has here in court ready to be produced, and to which he asks leave to refer, will appear (or, as by said agreement hereto annexed will appear). And the plaintiff pursuant to said agreement has paid the taxes on said premises for the year, etc., amounting to the sum of I And since the making of the said agreement, to wit, on the day of, etc., the said C. D. died intestate, and that during his life- time he never made any conveyance of the said premises to the plaintiff; that the said C. D. left a widow, M. A. D., and four chil- dren, viz. M. D., L. D., F. D., and J. D., all of whom are minors under the age of twenty-one years and the sole heirs of the said C. D., and S. K., of, etc., has been duly appointed administrator of the goods and estate which were of the said C. D. ; but no person as yet has been appointed guardian of the said minor children. And the plaintiff is desirous of obtaining a conveyance of the said real estate, pursuant to the terms of said agreement between the plaintiff and the said C. D., deceased, and is willing and ready to pay therefor the price stipulated in the said agreement in cash. And the plaintiff has made application to the said M. A. D., the widow of the said C. D., and ascertained that she is willing to release to the plaintiff her dower in the premises, upon having the interest of one third part of the purchase money secured to and paid to her during the period of her natural life, or having paid to her an amount equal to the present value of her said life interest. But by reason that the said C. D. died intestate there is no person who has legal authority to execute a deed, whereby to convey to the plaintiff the fee of the said real estate of which the said C. D. died seised. Peatek. The plaintiff prays that the said S. K, the said M. D., L. D., F. D, and J. D., may be decreed specifically to perform the said agreement entered into by the said C. D. with the plaintiff, the plaintiff being ready and willing, and hereby offering specifically to perform the said agreement on his part. DEMTJEEEKS. 325 III. DEMUEEEES. 1. The demurrer of A. B., defendant, to tlie bill of complaint of C. B., the above-named plaintiflf. This defendant, by protestation, not' confessing all or anj- of the matters and things in the plaintiffs bill of complaint contained to be true, in such manner and form as the same is therein set forth and alleged, doth demur to said bill, and for cause of demurrer showeth, that, etc. [^Ifere insert the cause or causes of demurrer. '\ Conclusion. Wlierefore the defendant doth demur thereto, and demands judg- ment of this court whether he shall be compelled to make any further or other answer to the said bill ; and prays to be hence dis- missed with his costs and charges in. this behalf wrongfully suffered. A. B., Defendant. Counsel. 2. Demurrer for Want of Equity . That the plaintiff hath not in and by his said bill made or stated any such case as entitles him, in a court of equity to any discovery from this defendant, or to any relief against him, as to the matters contained in said bill, or any of such matters. Wherefore, etc. [ Or thus :] That the said bill doth not contain any matter of equity whereon this court can ground any decree, or give to the plaintiff any relief against the defendant. 3. Demurrer for Multifariousness. The demurrer of, etc. This defendant doth demur, and for the cause of demurrer showeth, that it appears hy the said bill that the same is exhib- ited against the defendant and the several other persons named as defendants thereto for distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner interested or concerned, and that the said bill is alto- gether multifarious. Wherefore, etc. 326 APPENDIX. 4. Demurrer for Want of Parties. And for cause of demurrer show, that there are not proper par- ties to the said information, and that there is not and are not any person or persons, party or parties to the said infonnation, who represents or represent, or has or have a common interest with the said persons or class of persons whose interests the said informa- tion affects to protect, and for whom relief is thereby prayed. "Wherefore, etc. 5. Demurrer to a Dill of Interpleader. This defendant doth demur, and for cause of demurrer showeth, that the plaintiff has not in his said bill of interpleader shown any claim or right, title, or interest whatsoever in this defendant in or to the said estate called A., in the said bill particularly mentioned and described, in respect whereof this defendant ought to be com- pelled to interplead with C. D., in the said biU named, and the other defendant thereto. Wherefore, etc. 6. Demurrer where a Discovery would subject the Defendant to Pains and Penalties and Forfeiture. [Title and Commencement.] That the said information seeks to discover how this defendant came by the possession of the several goods therein particularly mentioned, whether it was not by fraud, violence, or other means, etc. ; but this defendant is advised, that any discovery of the man- ner in which such goods came into this defendant's possession, as an officer of the Honorable United Company of Merchants trading to the East Indies, would or might subject this defendant to fine or corporal punishment, and the penalties contained in the general acts of Parliament for the establishment of said Company, and also to a forfeiture of his rank and office in the service of said Company, and likewise of the said goods. Wherefore, etc. 7. Demurrer, Plea., and Answer.^ [^Demurrer."] I, the defendant A. B., by protestation, etc. as to so much of' said biU as seeks [state whati, and also to so much of said bill as seeks, etc., do demur thereto. And as to the dis- 1 This is an English form, where demurrers, pleas, and answers are required to be in the first person. PLEAS. 327 covery and relief sought by the said bill, save so much thereof as relates to the premises therein mentioned to be situate at S. in the countj' of for cause of demurrer I show that, etc. And as to so much of the said discovery and relief as relates to the premises at S. aforesaid, for cause of demurrer I show that, etc. Wherefore, etc., I pray judgment of this court, whether I shall be compelled to make an}' answer to such parts of the said bill as I have hereinbefore demurred to. [Pfea.J And I, the defendant A. B., not waiving, etc., as to BO much of the said bill as seeks, etc., and also to so much of said bUl as seeks, etc., do plead thereto ; and for plea say, etc. ; and I do aver that, etc. All which last-mentioned matters and things I do plead in bar to so much of the said bill as is hereinbefore pleaded to ; and I praj- judgment of this court, whether I ought to make any further answer to so much of the said bill as is hereinbefore pleaded to. l^Answer.] And I, the defendant A. B., not waiving mj' said several demurrers and plea, but wholly relying and insisting thereon, for answer to so much of the said bill as I am advised it is mate- rial or necessary for me to make answer unto, say as foUows, etc. .IV. PLEAS. 1. Title and Commencement of Plea. The plea of , defendant, to the bill of complaint of , plaintiff. This defendant, by protestation, not confessing or acknowledg- ing the matters and things in said bill set forth and alleged to be true, in such manner and fonn as the same are thereby and therein set forth and alleged, for plea to the whole of the said biU, or to so much and such part of the said bill as prays, etc., or seeks a dis- covery from this defendant whether, etc., saith that, etc. 2. Conclusion. All which matters and things this defendant doth aver to be true, and he pleads the said release, etc. [or whatever the m,at- ter of the plea may be'] in bar to the said plaintiffs bill, [If the plea extends to only a part of the bill tlie statement in the con- 328 APPENDIX. elusion should be limited to that part,] and prays the judgment of this honorable court, whether he should be compelled to make any other or further answer to the said bill [o>*, to so much of the said bill as is hereinbefore pleaded to], and prays to be hence dismissed with his costs and charges in that behalf wrongfully sustained.-^ [^Signature of Counsel."] 3. jPlea that Defendant has no interest in Subject of Suit. As to so much of and such part of the plaintiffs bill as charges that this defendant is interested in the personal estate of A. B., the testator in the said biU named, and seeks an account of the said testator's personal estate, this defendant pleads thereto, and for plea saith, that he is merely a subscribing witness to said testator's will, but in no wise interested therein ; and this defend- ant avers that he has not, nor ever had, or pretended to have, nor does he, or did he ever, claim any right, title, or interest whatso- ever in the personal estate of the said testator, or anj^ part thereof, and that the said plaintiff has no right to institute this or any other suit against him in respect thereof. All which said matters and things, this defendant doth aver and plead in bar to so much of the said plaintiff's bill as is hereinbefore particularly mentioned and pleaded to. And this defendant, not waiving his said plea, but relying thereon, and for better support- ing the same, for answer to so much of the said bill as aforesaid, saith he denies that he now is, or ever was, interested in the per- sonal estate of the said testator, or any part thereof, 4. Plea that the Defendant never was Administrator. That he is not, nor ever has been, administrator of the goods or estate which were of the said A. B., deceased, in the said biU named, as the said plaintiff in his said biU has untruly alleged. Therefore, etc. 5. Plea of Infancy to a Bill exhibited without Prochein Ami. That the said plaintiff, before and at the time of filing his said bill, in which he appears as the sole plaintiff, was, and now is, an infant under the age of twenty-one years ; that is to say of the age of or thereabout. Therefore, etc., 1 If there are two or more defendants, they may answer jointly or severally. PI4EAS, 329 6. Plea that Plaintiff is not Administrator,, as alleged. This defendant, by protestation, etc. to the matter in said bill contained, and to so much thereof as sets forth that the said A. B. is the administrator of the estate of the said C. D., and to so much thereof as relates to any contract of purchase between C. D. and this defendant, and seeks to have such contract re- scinded, and prays for relief in the premises, and that this defend- ant maj^ be required to refund to said A. B. all the money paid by C. D. upon the said purchase, and that the notes given in pay- ment therefor may be given up to be cancelled, and that the plaintift' may be repaid all damages and expenses which said C. D. may have suffered by reason of the premises, does thereunto plead, and for plea say, that said A. B. is not administrator as in the bill mentioned, or the legal representative of said C. D., duly appointed and qualified to act as therein set forth. All which matters and things this defendant avers to be true, and pleads the same to so much of said bill as aforesaid, and praj's judgment of this honor- able court, whether he ought to be requii'ed to make any other or further answer thereunto. 7. Plea of former Suit pending. That at a term of the Court, which was held in the year , the said present plaintiff exhibited his bill of com- plaint in this honorable court against this defendant for an account of the same moneys he now claims by his present bill ; and pray- ing relief against this defendant in the same manner, and for the same matters, and to the same effect, as the said plaintiff now prays by his said present biU ; and this defendant appeared and put in his answer to the said former bill, and the said plaintiff replied thereto, and witnesses were examined on both sides, and their depositions duly published, and the said former bill and the several proceed- ings in the said former cause, as this defendant avers, now remain depending, and as of record in this honorable court, the said cause being j-et undetermined and undismissed ; all which several matters and things this defendant doth aver, and pleads the said former bill, answer, and the several proceedings in the said former suit, in bar to the said plaintiff's present bill ; and respectfully dema:nds the judgment of this honorable court, whether he shall be put to make any further or other answer thereto ; and prays to be hence dis- missed with his costs and charges in this behalf sustained. 330 APPENDIX. 8. Plea to a Supplemental Bill. [Title, etc.] That the said matters and things in the said plaintiffs present bill, stated and set forth by way of supplement, arose, and were well known to the said plaintiff, before and at the time the said plaintiff filed his original bill in this cause, and that such said several matters and things can now be introduced, and ought to be, if necessary, by amending said original bill. Wherefore the said defendant demands, etc. 9. Plea to a JBill of Mevivor. [Title, etc.] That the plaintiflf is not, as stated in the said bill of revivor, the personal representative of A. B., deceased, the testator therein named, and as such entitled to revive the said suit in the said bill of revivor mentioned against this defendant ; but the said plaintiff is the administrator only of C. D., late of, etc., deceased, who died intestate on the day of last, and was the sole executor of the said A. B. ; and that letters of administration of the goods and estate of the said A. B., unadministered by the said C. D. in his lifetime, have since the death of the said C. D- been duly granted by the proper court to E. F., of, etc., who thereby became, and now is, the legal personal representative of the said A. B. Wherefore the said defendant demands the judgment of this honor- able court, whether he shall be compelled to answer the said plain- tiffs bill, and prays to be dismissed with his reasonable costs in this behalf sustained. 10. A Form of Plea of Purchaser for Valuable Consideration, and without Notice of a Prior Deed. [Title, etc.] A. B. vs. C. D. and E. F. The Plea of E. F. The said E. F. says that on the day of 188 , he loaned C. D. the sum of dollars, and the said C. D., to secure the paj'ment thereof, made and executed to him his promissory note of that date for the sum of dollars, and interest, in one year, and executed and delivered to him a good and sufficient deed of mortgage of said premises in said bill mentioned, with condition that if said C. D. should pay to this defendant the said sum of dollars, and interest, in one year, the said deed should PLEAS. 331 be void, as by the said deed duly executed, acknowledged, and recorded, and ready to be produced in said court appears. And the said mortgage deed was duly recorded in the Registry of Deeds of said County of on the day of 188 , and the alleged deed of mortgage made by said C. D. to the plaintiff was not left for record nor recorded in said Registry until the day of 188 . And this defendant avers that said sum of dollars was paid by him to said C. D. in money, really and bona fide, and said deed of mortgage received and recorded, without notice of the plaintiffs pretended title set forth in the bill, and without any reason to believe or suspect that any such loan or mortgage of said premises to the plaintiff had been made. G. H. Location for seal. E. F. 11. Conclusion of Plea of Release. Therefore this defendant pleads the said release in bar to so much of the said plaintiff's bill as is hereinbefore particularly men- tioned, and respectfully prays the judgment of this honorable court, whether he ought to be compelled to make any further answer to so much of the said biU as is before pleaded unto ; and this defendant, not waiving the said plea, but insisting thereon for answer to the residue of the said bill, and in support of his said plea saith, he denies that the said release was unduly obtained by this defendant from the said plaintiff, or that the said plaintiff was ignorant of the nature and effect of such release, or that the con- sideration paid by this defendant to induce the said plaintiff to execute the same was at all inadequate to the just claims and demands of the said plaintiff against this defendant, in respect of the several dealings and transactions in the said biU mentioned, or any of them ; and this defendant denies, etc. 332 APPENDIX. ANSWERS. 1. Commencement. The answer of , the defendant [or, one of the de- fendants], or, The joint and several answers of , the defendants [or, two of the defendants], to the bill of complaint of , plaintiffs. 2. By an Infant. The answer of C. D., an infant under the age of twenty-one years, by E. F., his guardian, defendant, to the bill of complaint of A. B., the plaintiff. 3. Introductory Words of Infants Answer. This defendant, answering by his said guardian, saith that he is an infant of the age of years, and therefore submits his rights and interests in the matters in question in this cause to the protection of this honorable court, without this, that, etc. 4. Of a formal Party teho is a Stranger to the Facts. This defendant answering sa}'s, that he is a stranger to all and singular the matters and things in the said plaintiff's bill of complaint contained, and therefore leaves the plaintiff to make such proof thereof as he shall be able to produce ; without this, that, etc. 5. Conclusion of Answer. And this defendant denies all and all manner of unlawful com- bination and confederacy wherewith he is by the said bill charged, without this, that there is any other matter, cause, or thing, in the said complainant's said bill of complaint contained, material or necessary for this defendant to make answer unto, and not herein and hereby well and sufficiently answered, confessed, traversed, and avoided, or denied, is true to the knowledge or belief of this defendant ; all which matters and things this defendant is ready and willing to aver, maintain, and prove, as this honorable court shall direct ; and prays to be hence dismissed with his reasonable costs and charges in this behalf wrongfully sustained. ANSWERS. 383 6. Answer setting up Statute of Frauds. And this defendant sets forth, in answer to the several aver- ments of contracts, agreements, promises, and trusts concerning the premises, with, to, or for the benefit of said plaintiff, in the said bill contained, and to so much of the said bill as sets forth any pretended contract, agreement, trust, or confidence between the said plaintiff and defendant, or as seeks any relief or discovery of this defendant of or concerning any pretended contract, agree- ment, trust, or confidence between this defendant and the plaintiff touching the said lands mentioned in the said bill, or any part thereof, the 8tatute of Frauds as enacted in the Public Statutes of this Commonwealth, Chapter 78, section 1, clause 4. And this defendant says, that neither he, nor any person by him lawfully authorized thereto, did ever make or sign any note or memorandum in writing of or containing any such contract, promise, or agi'eement, or grant, or declaration, [or, any contract, promise, agreement, or grant, or declaration whatsoever,] with, to, or for the benefit of the said plaintiff touching the said lands, or creating any estate or interest therein, or creating or declaring any trust respecting the same, in or therein ; or creating or declaring any trust respecting the same, in or for the benefit of the said plaintiff; and this defendant insists upon the said statute, and claims the same benefit therefrom as if he had pleaded the same. 7. Answer of Statute of Limitations. And the defendant, in addition to the foregoing answer, avers that the cause of action, if any there may be, arising to the plaintiff on account or by reason of the several allegations and complaints in his said biU of complaint contained, did not accrue within six years before the said bill was filed, and this allegation the defendant makes in bar of the plaintiff's bill, and prays that he may have the same benefit therefrom as if he had formally pleaded the same. 8. Answer and Disclaimer. [Title and commencement as before.] I have never received any part of the estate or effects of the testator, or in any wise intermeddled therein, and I have never assented to, or in any manner accepted the said devise made to me by the said will jointly with the said , and I have never 334 APPENDIX, in any manner consented to become a trustee of the said will, or in any manner acted or interfered in the trusts thereof; and, in fact, I have at all times refused to accept, and do now refuse to accept, the office of trustee of the said will ; and I have always disclaimed, and do hereby disclaim and renounce the said devise made to me by the said will, and all and singular the estates and propertj' which could or might pass under or by virtue thereof, and air estate and interest therein, and also the trusts of the said will, and the office and duty of executing the same. 9. In case of an Insufficient Answer. The further answer of A. B., the above-named defendant, to the bill of complaint of the above-named plaintiff. 10. Further Answer to Original Sill, and Answer to Amended mil. The further answer of A. B., the above-named defendant, to the original bill of complaint of the above-named plaintiff, and the answer of the said defendant to the amended bill of complaint of the plaintiff. 11. Form of Statement of Accounts, and Heference to Books containing them. The dealings and transactions in respect of the said trade are entered in a large book, kept on the premises at , and the items in respect thereof are contained in 1 64 pages, with double columns, of the said book ; and to set out such items in detail would occasion very great expense ; but we are willing, if the court shall think proper so to direct, that the plaintiff or his so- licitor should inspect the said book, and take extracts therefrom, at all reasonable times of the daj'. 12. Admissions for Purposes of the Suit. We have no personal knowledge of the fact, but, for the pur- poses of the suit, we admit that, etc. 13. Forms of Stating Information and Belief. We have no reason to doubt, and therefore we believe, that, etc. We believe that the statements contained in the paragraphs numbered respectively from. 1 to 8, both inclusive, of the plaintiff's ANSWEES. 835 bill of complaint, are true, except in the particulars or respect hereinafter mentioned ; that is to say, etc. I, this defendant, W. R., say, and we, these other defendants, believe it to be true, that, etc. ^Xe have no personal knowledge of the matters inquired after by the interrogatories filed in this cause ; but we have no reason to doubt, and therefore we believe, that, etc. 14- Qualified Denial. Save as herein appears, it is not the fact, etc. Save as herein appears, [or, Save as by the said schedule appears,] I do not know, etc. 15. Claim of Settled Accounts. The account so stated and settled was in fact stated and settled by the said A. B. and myself, as it purports to be, on the day of the date thereof ; and I claim the benefit thereof as a settled account. 16. Form of Answer according to the present English Practice.^ In Chancery. A. B., Plaintifl; and CD., Defendant. The answer of C. D. to the bill of complaint of the above- named plaintiff. In answer to the said bill, I, C. D., say as follows : — 1. I admit that the indenture of the day of 1884, in the plaintiff's bill mentioned, was made and executed between and by the several parties, and was to the purport and effect in the said bill set forth ; but I crave leave to refer to said indenture when the same shall be produced to this honorable court. 2. I believe that such representations as set forth in the of the interrogatories to the plaintifi"s bill were made by therein mentioned. 3. I deny that I did, on the day of or at any other time, state, etc. 1 By statute and the Orders of Court the answer of the defendant in England is required to be in the first person. We iiave no such statute or rule in this State. The answer here is usually in the third person. 336 APPENDIX. 4. [^A statement of circumstances varying from the statement thereof in the plaintiff's bill.'j 5. Save as aforesaid, I deny, etc. [^JTere the allegations of the plaintiff's bill are denied."] Or, 6. Save as aforesaid, I am unable to set forth as to mj' knowl- edge, remembrance, information, or belief, whether, etc. 7. I claim, etc. [^A statement of the defendant's claim or case. ] [^Counsel's signature.^ VI. EXCEPTIONS TO ANSWERS. 1. If^or Insufficiency. S3. Superior Court in Equity. Between A. B., Plaintiff, and CD., Defendant. Exceptions taken by the above-named plaintiff to the answer of the defendant for insufficiency. First. For that the said defendant has not in and by his said answer, according to the best of his knowledge, remembrance, in- formation, and belief, answered and set forth whether, etc. Second. For that the defendant has not in and by his said answer in manner aforesaid answered and set forth whether, etc. (And so with respect to other exceptions.) In all or some of which particulars the said plaintiff is advised that the said answer of the defendant is evasive and insufficient, and ought to be amended, and prays the same may be amended accordingly. [Counsel's name.1 2. For Scandal. [Title of the court and names of parties as in No. 1.] Exceptions for scandal taken by the above-named defendant, A. B., {or plaintiff, etc.,] to the bill of complaint of the above- named plaintiff {or, to the answer of the above-named defendant, A. B., to the bill of complaint of the said plaintiff], filed in this cause on the day of NOTICES. 337 First Exception. For that the whole of the paragraph of the said bill \_or answer] [Aere introduce language to identify the par- agraph referred io^ is scandalous. Second. For that the passage commencing with the words, etc., in the line, and ending with the words, etc., in the line, of the paragraph of said bill [or answer], [identify the paragraph,'] is scandalous. In all which particulars this exceptant excepts to the said bill [or answer] as scandalous ; and respectfully insists that the said scan- dalous matter ought to be expunged therefrom. [^Counsel's name.'] VII. NOTICES. 1. Of having filed Exceptions. Take notice that I have this day filed exceptions for scandal to the plaintiff's bill [or, to the answer of the defendant, A. B.], in this cause [or matter] . 2. Of having set down Exceptions. Take notice that I have this day set down for hearing, excep- tions for scandal to the plaintiffs bill [or, to the answer of the defendant, A. B.] in this cause. 3. That Plaintiffs BiU may he dismissed for Want of Prosecu- tion. [Title, etc.] Take notice, etc., etc., that the bill filed in this cause may stand dismissed out of court, with costs, for want of prosecution. Dated, etc. To A. B., Esq., Plaintiff's Solicitor. 4. Of Motion for an Injunction. Iji Chancery. [Title of cause.] Take notice that this court will be moved for an injunction, for and on behalf of the plaintiff, on the day of , that the defendant may be restrained from commencing or prose- 22 338 APPENDIX. cuting any action or other proceedings at law against the plaintiff for the recovery of the sum of $ in the plaintiff's bill men- tioned, or for , or in respect of the matters mentioned in the plaintiff's bill, or any of them, until the further order of this court. Dated this day of 1885. To C. D., Esq., A. B., Solicitor for Defendant. Plaintiff's Solicitor. 5. li'or an Issue at Law. Take notice, etc., etc., that issues at law may be awarded in this cause for the trial, by jury, of the matters in controversy therein. Dated, etc. 6. To dissolve an Injunction. Take notice, etc., etc., that the injunction issued in this cause may be dissolved, with costs. Dated, etc. 7. For an Attachment for Contempt. Take notice, etc., etc., that an attachment as for a contempt be issued against the above-named defendant, for violating the injunc- tion issued in this cause. Dated, etc. VIII. PETITIONS AND MOTIONS. 1. To amend JBill after Answer, requiring further Answer. [Title, etc.] Showeth, — That your petitioners having exhibited their bill against the above-named defendant W. F., and others, the said defendant W. F. only hath appeared and put in his answer thereto, (none of the other defendants having j'et appeared to the said bill,) since which j-our petitioners are advised to amend their said bill. Your petitioners therefore pray that they may be at liberty to amend their said bill, as they shall be advised, on payment of $ costs to the said defendant W. F. in respect thereof, and without costs as to the other defendants. And your petitioner shall ever pray, etc. PETITIONS AND MOTIONS. 839 2. To amend a Bill by adding a Defendant. [Title, etc.] Showeth, That your petitioner filed his bill in this honorable court, against the defendant, on the day of , to ■which the defendant has appeared and put in his answer, upon which your petitioner is advised to make E. F. a party in this cause, and to bring him before the court as a defendant to the suit. Your petitioner therefore praj's that he may have leave to amend his bill by adding the said E. F., a defendant thereto, with apt words to charge him. And your petitioner, etc. 3. Petition of Course for Leave to file Supplemental Answer, by Consent. [Title, etc. j Showeth as follows : — 1. The plaintiff lately filed his bill in this cause, against j'our petitioner, who appeared thereto, and on the of , 18 , filed his answer to the said bill. 2. Tour petitioner has since discovered certain mistakes in his said answer, and desires to explain and correct the same by a supplemental answer. Your petitioner therefore praj's that, by consent of the plaintiff, he may be at liberty on or before the ' of , 18 , to file a supplemental answer to the plaintiff's bill, for the purpose of [state what, as thus : correcting statements inadvertently made in his answer filed on the of , 18 , that he had not sold an artificial exhaust elsewhere than at his mill at W., and as to the number of millstones to which such machinery has been applied]. 4. J<'or Leave to maJce new Parties upon the Decease of one of the original Parties. Supreme Judicial Court. C. Gr. L., Executor, vs. I. T. et als. The plaintiff suggests that Nathaniel I. Bowditch, trustee under the will of Andrew Thorndike, one of the defendants to this suit, has deceased, and that William I. Bowditch and John Goldsborough 340 APPENDIX. hare been appointed trustees in his place ; and therefore asks leave to amend his bill and make them parties. F. C. L., Solicitor, 5. Petition of Course, by Party late an. Infant, on coming of Age, to dismiss J3ill with Costs, before Decree. [Title and address.] The petition of the plaintiff, late an infant, but now of Ml age, Showeth as follows : — 1. Yonr petitioner, when an infant, by C. D., his next friend, filed his bill in this cause against the defendants, to which they appeared, but no decree has yet been made therein. 2. Your petitioner has now attained his age of twenty-one years, and is not desirous to proceed any further in the said cause. Your petitioner therefore prays that his said bill may stand dis- missed out of court, with costs to be paid by him to the said C. D. and to the defendants. And your petitioner, etc. 6. To withdraw a Plea or Demurrer. [Title, etc.] Showeth, That the plaintiff having exhibited his bill in this hon- orable court against j'our petitioner, your petitioner put in his plea [or demurrer] thereto, since which your petitioner is advised to make other defence to the said bill. Your petitioner therefore praj's that he may be at liberty to with- draw his plea [or demurrer] upon paj'ment of costs. And, etc. 7. Of a Plaintiff for a Habeas Corpus to bring Defendant before the Court. [Title, etc.] Showeth, That the plaintiff filed his bill against the defendant, , to which he has not appeared or answered. That an attachment has issued against him at the instance of your petitioner, upon which he has been arrested, and now remains in the custody of the sheriff of Your petitioner therefore prays that a writ of habeas corpus cum causis may issue out of this honorable court, directed to the PETITIONS AND MOTIONS. 341 said sheriff of the county of , thereby commanding him to bring the body of the said into this honorable court, on, etc., in order that tlie said may answer his said contempt, and be otherwise dealt with, according to law. And, etc. 8. For a Plaintiff to dismiss his Bill with Costs. [Title, etc.] Showeth, That your petitioner having exhibited his bill in this honorable court against the above-named defendant, who has ap- peared [and put in his answer] thereto, your petitioner is now advised to dismiss his said bill. Your petitioner therefore prays that the said bill may stand dis- missed out of this court, with costs to be taxed by the proper taxing oflScer [or, by the clerk of this court]. 9. Special Petition to rectify a Decree or Order. [Title and address, etc.] The petition of the plaintiff [or as may be] showeth as follows : 1. By the decree [or, by an order] made in this cause by [as the case may he\ , dated the day of 18 , it was decreed, etc. [Set out so much of the decree or order as is m,aterial to the subject matter of the petition."] 2. The said decree [or order] has been duly entered in, etc. 3. Since such entry was made, your petitioner has discovered that the said decree [or order] omits to [state omission required to be rectified]. Your petitioner therefore praj's that the said decree [or order] may be rectified or corrected by [state in what respect] ; or that the court will please to make such other order in the premises as to the court shall seem meet. And your petitioner, etc. 10. For leave to withdraw Replication and amend BiU. [Title, etc.] Showeth, That the defendant in this cause has appeared and put in his answer to the bill, and that your petitioner has filed a repli- cation [or, taken issue on the answer], but no witnesses have been examined by either party. That since the filing of the replication, 342 APPENDIX. your petitioner has been advised, and believes, that it is essential to his rights in this cause that his bill should be amended, by adding thereto [o?*, inserting therein] the following statements. [Insert new matter proposed.] And your petitioner further shows, that he had no knowledge of the facts above set forth, nor was he aware of the necessity of introducing them into his bill, until after the said replication was filed [or, issue was taken on the answer]. Your petitioner, therefore, praj's that he may be at liberty to withdraw his said replication, and amend his bill as proposed above, or otherwise as he shall be advised, on payment of costs. And, etc. 11. Petition for an Injunction and Meceiver, pending Question of Insolvency. G. T. L. et alii, Pet'rs, vs. G. F. C. et al. And now the petitioners in the above entitled cause come and move this honorable court that an injunction be issued by the court, restraining and enjoining B. P. W. and W. R. W., and each of them, and their and each of their servants, agents, and attorneys, from making any sale, transfer, conveyance, incumbrance, or dis- position of any of the estate, choses in action, property, or effects, real or personal, of the firm of W. & L., or of any of the separate estate of either said B. P. "W. or W. R. W., whether consisting of real estate or choses in action, or of any other personal property, and from making any disposal of any of the books of account, papers, documents, vouchers, or evidences of title of either said firm, or of said B. P. "W., or of said W. R. W. And your peti- tioners also move this honorable court to appoint in this cause some suitable and proper person as Receiver of the estates, choses in action, property, and effects, real and personal, of said firm, and as Receiver of the separate estates, real and personal, of said B. P. W. and W. R. W. and G. T. L. respectively, and of aU the books of account, papers, vouchers, and evidences of title of said firm and of said B. P. W., and of said W. R. W., and of said G. T. L., and to decree and order that all said estates, choses in action, property, and effects, real and personal, and said books of account, papers, vouchers, and evidences of title, shall be delivered up into the control and hands of said Receiver. B. & B., Att'ys and Sol'rsfor the Petitioners. PETITIONS AND MOTIONS. 343 12. Motion to modify an Injunction, with the qualified Allowance of the Court thereon. Commonwealth of Massachusetts. S , ss. Supreme Judicial Court. In Equity. At the Rules. D. S. vs. H. E. et al. And now the said H. E., one of the defendants in said suit, comes, and before answer to said bill of complaint, and waiving no rights in said suit, moves the court that the injunction, wliich has heretofore issued against him in this suit without notice, be so far modified as to allow him, the said H. £., to collect, settle, or adjust the notes or obligations in his hands, as agent of the said Columbia Insurance Company, with the parties liable thereon, and give up the same, when so settled or adjusted, to such parties liable thereon, and in general that the same may be so modified as to allow him, said H. E., to settle, collect, and reduce to money, in such manner as he shall deem proper, the notes, obligations, and evidences of debt in his said possession, the proceeds thereof to remain in his hands until further order of this court, or some justice thereof. By his Solicitors, C. T. & T. H. R. This motion is so far allowed that the defendant H. E. is allowed to collect and receive the amount due on notes in his hands, and to hold the proceeds under the injunction ; but it is disallowed so far as it moves for libertj' to compound and compromise said notes. G. T. B., J. S. J. C. 13. A Form of Prayer in a Petition for an Attachment for Breach of an Injunction. "Wherefore the plaintiflfs pray that your Honor will, in considera- tion of the breach of said injunction, issue a writ of attachment against said defendant, and order that the said defendant stand committed to the common jail at , in and for said county of , until he pay to the plaintiffs the amount of damages they have sustained in consequence of the taking down of said lime- 344 APPENDIX. kiln and machinery, and the removing of the same, together with all the costs and expenses of the plaintiffs in procuring said appli- cation and writ of attachment, together with such fine as to your Honor shall seem meet. 14. For lieave to file a BiU of Review on the Ground of the Discovery of new Facts. [Title, etc.] Showeth, That your petitioner has exhibited his bill in this honorable court against X. Y., for the purpose of {state general object of original biW], and praying [state the prar/er'j. That the said X. Y., being duly served with process, appeared to the said bill and put in his answer. And the said cause being at issue, was brought to a hearing before , on, etc., whereupon a decree was made in effect as follows : [Set forth the substance of the decree.] That said decree has since been duly enrolled [or, entered of record, and judgment thereon rendered]. And j'our petitioner further showeth, that, since the time of making and entering said decree, your petitioner has discovered new matters important and material in the said cause ; particularly [here set forth the new matter'], which new matters your petitioner did not know, and could not, by reasonable diligence, have known, so as to make use thereof in the said cause, before and at the time of making and entering the said decree. Your petitioner, therefore, prays that he may have leave to file a bill of review against the said C. D., for the purpose of obtaining a review and reversal of the said decree ; and that all further pro- ceedings under the same may be stayed. And, etc. AITIDAVITS. 345 IX. AFFIDAVITS. I. General Form. Commonwealth of Massachusetts. Suffolk, ss. Supreme Judicial Court In Equity. Between A. B., Plaintiff. and C. D., and E. F., Defendants. I, G-. H., of, etc., \_place of residence and description or addition, or, I, A. B., the above-named plaintiff,] make oath and say as follows [or, if more than one deponent^ We, G. H., of, etc., and I. J., of, etc., severally make oath and say as follows] : — 1. I, the deponent, Gr. H., say, etc. 2. I, the deponent, I. J., say, etc. The facts and circumstances deposed to by me in the para- graphs of this aflSdavit are true and within my own personal knowledge. The facts and circumstances deposed to by me in the para- graphs of this affidavit are believed by me to be true, from informa- tion which I have received from Sworn to [or afHrmed] before me, this day of , 18 . L. M., Justice of the Peace. 2. Affidavit in Support of Amplication to amend Bill. Where application is before filing replication. 1. That the draft of the prepared amendments to the plaintiff's bill has been settled and approved, and signed by counsel. 2. That such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff. If after replication filed, or after the expiration of the time allowed by the rides when the answer, or the last answer, is deemed sufficient, add, — 3. That the matter of the proposed amendments is material, 346 APPENDIX. and could not, with reasonable diligence, have been sooner intro- duced into such bill. Show, also, the materiality of the amendments, and state such facts as will enable the court to judge whether reasonable diligence has been used. 3. Affidavit verifying Heceiver's Account. [Title, etc.] In Chancery. I, , of , the Receiver appointed in this cause, make oath and say as follows : — 1. I say that the account contained from page to page , both inclusive, in each of the two several books marked with the several letters A and B, produced and shown to me at the time of swearing this my affidavit, and purporting to be my account of the rents and profits of the real estate and of the outstanding personal estate of the testator [or intestate] in this cause, from the day of 1 18 , to the day of , 18 , both inclusive, doth contain a true account of all and everj' sum and sums of monej' received by me, or by any other person or persons by my order, or to my knowledge or belief, for my use, on account or in respect of the said rents and profits accrued due on or before the said day of ,^ or on account or in respect of the said personal estate other than and except what is included as received in my former account [or accounts] sworn to by me. 2. And I further say, that the several sums of money mentioned in the said account hereby verified to have been paid and allowed, have been actually and truly so paid and allowed for the several purposes in the said account mentioned. 3. And I further say, that the said account is just and true in all and every the items and particulars therein contained, accord- ing to the best of my knowledge and belief. ' The day to which the account is made up. SUMMONSES. 847 X. SUMMONSES. 1. Summons for JLeave to amend £itt. In Chancery [or Equitj']. Between A., Plaintiff, and B., Defendant. Let all parties concerned attend at, etc., on, etc., at of the clock, etc., on the hearing of an application on the part of the above-named plaintiff, that he may be at liberty to amend his bill as he shall be advised, on or before the day of next. Dated, etc. [^Name of Judge.'] This summons was taken out by, etc., of, etc., solicitor for the said plaintiff. To the above-named defendant 2. Summons for further Time to answer. [Commencement as in preceding.] An application on the part of the defendant , that he may have one calendar month's [or, weeks'] further time to plead, answer, or demur, not demurring alone to the plaintiff's bill ; and the costs of this application may be costs in the cause. [Conclusion as in preceding.] 3. Sammons for Affidavit and Production of Documents.^ [Commencement as before.] An application on the part of the above-named for an order that the above-named do within daj'S after the service of the order to be made upon this application, make a full and sufficient affidavit, stating whether he has or has had in his possession or power any, and, if anj', what documents relating to the matters in question in this suit, and accounting for the same ; and that the said do within days 1 See lasigi v. Brown, 1 Curtis, 8, 401. 348 APPENDIX. afterwards, produce and leave with the such of the said documents as by such affidavit shall appear to be in his possession or power, except such of the same (if any) as he may by his said aflSdavit object to produce, with the usual directions. [Conclusion as before.] XI. DECREES AND ORDERS. 1. Introductory Part of Original Decree at the Hearing of tlie Cause} ClKCUn CODBT OF THE UNITED STATES. In Equity, May term, 1863. G. J. F. vs. W. W. G. This cause came on to be heard [or, to be further heard] at this term, and was argued by counsel ; and thereupon, upon consid- eration thereof, it was ordered, adjudged, and decreed as follows, viz. : — 2. Decree on Motion for Decree. [Date and Title.] Upon motion this day made unto this court, by counsel for the plaintiff, and upon hearing counsel for the defendants, this court doth order and decree, etc. 3. Decrees for Specific Performance. (1 .) Declare that the agreement dated the day of , in the pleadings mentioned, ought to be specifically performed and carried into execution, and order and decree the same accordingly. (2.) Declare that the in the pleadings mentioned constitute a binding agreement between the plaintiff and defendant, and that the same agreement ought to be specifically performed and carried into execution, and order and decree the same accordingly. ^ See earlier form oi decree in Massachusetts, in Am. Academy of Arts t>. Harvard College, 12 Gray, 599. DECREES AND ORDERS. 349 (3.) Declare that the agreement of the of , in the pleadings mentioned, was duly entered into by the defendant B., on his own behalf, and as the duly authorized agent of the defendant C, and declare that the agreement ought to be specifically per- formed and carried into execution, and order and decree the same accordingly. (4.) Declare that the agreement in the pleadings mentioned ought to be specifically performed and carried into execution, and order and decree the same accordingly. And let an inquiry be made what damages have been sustained by the plaintiff by reason of the defendant not having specifically performed the said agreement ; and let the defendant within days from the date of the clerk of court's certificate, pay to the plaintiff what shall be certi- fied to be due to him in respect of such damages. Defendant to pay plaintiff's costs. Injunction against actions in contravention of the agreement. (5.) Declare that the agreement dated the day of , in the pleadings mentioned, ought to be specifically performed and carried into execution, and order and decree accordingly. And let the plaintiff, and all proper parties, execute a proper deed of transfer of the said shares to the defendant, such deed to be settled, &c. And let the defendant concur in all steps which may be necessary and proper for causing the said shares to be duly registered in his name as one of the members of the cor- poration. Declarations that the defendant is liable to indemnify the plaintiff against calls, and directions to settle deed accordingly. Defendant to pay plaintiff's costs of suit. (6.) The court doth declare, that the agreement in the plaintiff's bUl mentioned, dated, etc., ought to be specifically performed and carried into execution, and decree the same accordingly. And it is ordered that it be referred to A. B., one of the masters, etc., to compute interest at the rate of per cent per annum, on the sum of $ , the (residue of the) purchase-money for the estate comprised in the said agreement, from the day of , when the same ought to have been paid according to the terms of the said agreement. And the said Master is to take an account of the rents and profits of the said estate received by the plaintiffs, or any of them, or by any other person, etc., since the day of , [if costs are given] and tax the plaintiffs their costs of this suit. And it is ordered that what shall be coming, on the 350 APPENDIX. said account of rents and profits, be deducted from the amount (of the residue) of the said purchase money, and interest (and costs) when so computed (and taxed) as aforesaid. And upon the plaintiflf's executing a proper conveyance of the said estate to the defendant (at the expense of the defendant according to the said agreement) , or to whom he shall appoint, such conveyance to be settled by the said master [or the court] in case the parties difiier, it is ordered that the defendant pay to the plaintiffs the balance which shall be found to remain due to them in respect of such purchase money, and interest (and costs), after such deduction as aforesaid. Liberty to apply. (7.) His Honor doth order, that the agreement in the bill men- tioned ought to be specifically performed and carried into execution, in case a good title can be made to the premises comprised therein. And it is ordered that the following inquiries be made : — 1. An inquiry whether a good title can be made to the leasehold premises comprised in the indenture of lease dated, etc., in the agreement in the plaintiflf's bill mentioned ; and in case it shall appear that a good title can be made to the premises, when it was first shown that a good title could be made. 2. An inquiry what was the value on, etc. {the date of the contract'], of the stock of drugs, chemicals, and other medicines, implements, utensils in trade, articles, house and trade fixtures, comprised in the said agreement. 3. An inquiry whether any, and what part thereof, and to what amount, has been sold or removed from the premises, and under what circumstances. And it is ordered, that the further consideration of this cause be adjourned, and anj' of the parties are to be at liberty to apply to this court as they may be advised.'' 4. Order on Petition. In the Court. {Give date and title.'] Upon the pe- tition of A. B. on the day of preferred unto the court, and upon hearing counsel for the petitioner (and for the respondent if any) , and upon reading said petition and an aflidavit of C. D., filed, of service of said petition on, etc. This court doth order, etc. ^ Tor form of decree declaring void the levy of an execution in favor of a judgment creditor of an insolvent debtor upon tlie debtor's reversion of real estate, after the first publication of notice of issuing the warrant, see Hall v. Whiston, 5 Allen, 126. DECREES AND OBDERS. 351 5. Order on Special Petition. [Date and Title.] Upon the petition of, etc., on the day of pre- ferred unto, etc., and upon hearing counsel for the petitioners [and for, etc., name the respondents, if any], and upon reading the said petition, this court doth, etc. 6. Order on Motion. In the Court. \_Give date and title.'] Upon mo- tion this day made unto this court by counsel for A. B., etc., and upon hearing counsel for, etc., and upon reading an affidavit of C. D., of, etc., filed, etc., of service of notice of the said motion on, etc. This court doth order, etc. 7. Order on Motion refused. Upon motion, etc., b}' counsel for, etc. [recite notice], and upon hearing counsel for, etc. This court doth not think fit to make any order upon the said motion [if with costs, but doth order that the plaintiflT do pay to the defendant his costs of the said motion, to be taxed by the court if the parties differ]. 8. Usual Directions. (a.) Directions for Reference to a Master.^ It is ordered that it be referred to A. B., Esquire, Master, etc., to inquire and state to the court, etc. And for the better discovery of the matters aforesaid, the parties are to produce before the said master, upon oath, all deeds, or books, papers, and writings in their custod}- or power relating thereto, and are to be examined, etc., as the said master shall direct. (J.) Where Account directed. It is ordered that it be referred to A. B., etc.. Master, etc., to take an account, etc. And for the better taking of the said account, and discovery of the matters aforesaid, the parties are to produce, etc., and are to be examined, etc., as the said master shall direct, who in taking said account is to make unto the parties all just allowances. 1 See Pingree r. Coffin, 12 Gray, 312. 352 APPENDIX. 9. Meserving Case for Full Court. Heard on bill, answer, evidence, and exhibits, and reserved thereon for the consideration [and determination] of the full court. 10. Appeal. Heard ; bill dismissed ; plaintiff appeals. 11. Account. \Prder of reference to Master ; account ; rests ; state special circumstances, etc.'] On reading the pleadings in the above cause, and hearing the counsel of the respective parties, and on consideration thereof, it is ordered that it be referred to E. W., Esq., as a Master of this Court, to take an account of the dealings and transactions of and between the said parties under the several agreements set forth in the plaintiff's bill, and to state what, upon the balance of said account, shall appear to be due from either partj'' to the other. And the said master is to make rests in said accounts, and state whether anj' and what balances were due from either, and which of said parties to the other, on the first daj- of April, a. d. 1850, as well as at the period at which the plaintiff, in his said bill, alleges said mutual account to have terminated. And said master is authorized to state and report to the court any special circumstances needful for explaining said account and his report thereof, and the evidence as to the time when said mutual account did terminate. And for the better taking of said accounts, etc., the parties are required to produce, etc., and to be examined before said master upon oath, either upon interrogatories, or viva voce, or by each of said modes, as the said master may direct. And all equities and further directions are reserved until the coming in of the report. And the parties are at liberty to apply to the court as occasion may require, i By the Court, H. W. F., Clerk. 12. Establishing Will. This court doth declare, that the will of , the testator in the bill [or pleadings] named, dated, etc., is [o>*, and the codicil 1 Foster v. Goddard, TJ. S. C. Court, May 7, 1857. DECKEES AND OEDEES. 353 thereto, dated, etc., are] well proved, and that the same ought to be established, and the trusts thereof performed and carried into execution ; and order and decree the same accordinglj'. 13. For form of Decree settling the basis and amount of the principal residuary fund of an estate ; fixing the time when the income of those entitled shall begin to accrue/ costs and charges for an amount agreed out of the principal fund / see Kinmonth v. Brigham, 5 Allen, 270. 14. Decree for Scheme regulating Charity. 1. Let a scheme for the future regulation and management [^administration] of the charity in the pleadings mentioned, and the application of the present and future income thereof be settled bj', &c. 2. And let new trustees be appointed for the management [administration] of the said charity, and of the estates [funds] and property thereof; and let provision be made in the said scheme for the future appointment of trustees ; and let the follow- ing inquiries and account be taken and made, that is to saj' : 3. An inquiry of what the property of the said charity consists, and where the same is situate, and what is the income and annual value thereof, and how, and by whom, and under and upon what terms, rents, and conditions, the same and every part thereof is let and is now held. 4. An account of the rents and profits of the charity estates received \>y the defendants, or by any other person, etc., and of the application thereof from the day of , the date of the filing the informa- tion in this cause. Adjourn, etc. 15. Directions for Scheme for regulating Charity. Let a scheme for the [future] regulation and management [ad- ministration] of the charity in the pleadings and petition mentioned [and of the estates (funds) and propertj'^ thereof, or, and for the application of the income, and the selection of fit ojects thereof, or, and filling up any vacancy in the number of the trustees] be settled, etc. 1 6. For form of Decree declaring an absolute deed to be a mort- gage given to secure a debt / absolute sale by the mortgagee, with- out notice, destroying the equity of redemption, a constructive fraud; defendant (mortgagee) to pay to the mortgagor the value 23 354 APPENDIX. of the land and of the rents and profits after deducting the prin- cipal and interest of the debt for which the deed was made ; see Wyman v. Babcock, 2 Curtis C. C. 386. 17. Injunctions. (1.) Injunction on Notice, or Ex parte, on Undertaking as to Damage. Upon motion, etc. , by counsel for the plaintiff, ancl upon hearing counsel for the defendant [or, reading an affidavit of notice of his motion to the defendant, or, if moved ex parte before the defendant has appeared to the bill, the clerk's certificate of the filing of the plaintiff's bill in this cause, on the day of J. \_Enter affidavit in support and in opposition, if any ; and if ex parte, add, and the plaintiff, by his counsel, undertaking to abide by any order this court may make as to damages, in case this court should hereafter be of opinion that the defendant shall have sustained anj', by reason of this order, which the plaintiff ought to pay, if so, and also undertaking to accept short notice of motion to dissolve the injunction hereby- awarded.] This court doth order, that an injunction be awarded to restrain the defendant A., his servants, workmen, and agents, from, etc., until the hearing of this cause, or until the further order of this court. (2.) Ex parte Interim Order. Usual undertaking as to damage. \Form above. '\ Let the defend- ant, his servants, workmen, and agents, be restrained from, etc., until after the day of , or until the further order of this court \if so, and let the plaintiff be at libertj' to serve the defendant with a notice of motion for the daj' of , for an injunction in this cause]. (3.) Ex parte Injunction. Upon the application of the plaintiffs, and upon reading an affidavit of, etc. \_enter evidence] ; and the plaintiffs, b}' their solicitors, having undertaken, etc. \_form above], and having signed, etc., to that effect, accordingly this court doth order that an injunc- tion be awarded, etc.^ 1 See 2 Seton Dec. (Eng. ed. 1862), 867. DECREES AND ORDEES. 355 (4.) Another Form, Provisional (Massachusetts). At Chambers, Boston, May 14, 1862. Let an injunction issue in conformity with the prayer of the bill, to continue, until the further order of the court, or some justice thereof. E. E. H., J. S. J. C. (5.) Staying Waste by Tenants in Common. This court doth order, that an injunction be awarded against the defendant A., to restrain him, his servants, workmen, and agents, from cutting down any timber, or other trees, or underwood, from ofif the estates in the bill mentioned, at unseasonable times, until, etc.^ (6.) Staying Pollution of a Stream. Nuisance. This court doth order, that a perpetual injunction be awarded to restrain the local Board of Health for the town of , their agents, servants, and workmen, from causing or permitting to pass any sewage, filth, or other oflfensive matter, either solid or liquid, down or through any sewer or drain into the river W., in the bill mentioned, to the injury of the plaintiff.^ (7.) Injunction on Dissolution of Partnership. This court doth order that an injunction be awarded to restrain the defendant and his (servants and) agents from intermeddling with the partnership assets, and from signing or using the name or style of the firm of H. and D., or from trading, or dealing, in or under that name or style, until, etc. Directions for receiver.' (8.) Negotiating Securities. This court doth order that an injunction be awarded to restrain the defendants from parting with, out of the custody of them, or any of them, or indorsing, assigning, or negotiating the promissory note, dated, etc., in the plaintiff's bill and affidavit mentioned, until, etc. 1 See Baton's Forms of Decrees, 1st Am. ed. 58-81. 2 Ibid. 114. 8 Ibid. 140. 356 APPENDIX. (9.) Transfers. The court doth order that an injunction be awarded to restrain the defendant A. from transferring any stock standing in the name of B., the testator in, etc., named, or in the name of the said A., as the executor of the said B., or any part thereof, and from receiving the dividends and interest due or to accrue due thereon ; and also to restrain the President, Directors, & Co. of the bank from permitting the said defendant A. to transfer such stock, or receive such dividends and interest, until, etc' (10.) Writ of Injunction restraining one holding Property of a Foreign Debtor, which could not be attached at Law, from transferring or disposing of it. COMMONWEAITH OF MASSACHUSETTS. S , ss. To H. E., of B., in said county, his servants, agents, attorneys, and counsellors, and each and every of them. Greeting : Whereas it has been represented unto the Justices of our Su- preme Judicial Court, now holden at Boston, withia and for said county, sitting as a court of chancery, that the Columbia Insurance Company, of Columbia, South Carolina, is a foreign insurance com- pany, and that said company is largely indebted to D. S., of N., in the county of E., as in said D. S.'s bill of complaint, this daj' filed in our said court, is alleged, and that the said company has no property in this Commonwealth which can be come at to be attached or taken on execution, and that you, the said H. E., have a large amount of the property of the said company now in your possession, consisting chiefly of valuable promissory notes belonging to said companj^, — We, therefore, in consideration of the premises, do strictly enjoin and command you, the said H. E., and all and every the persons before named, from passing any promissory notes or other property now in your possession, or under your control, belonging to the said Columbia Insurance Company, into the possession of any person whatever, and especially not into the possession or control of the said company, or any ofBcer or agent of the same ; 1 Por like order as to any stock, with injunction against the bank, see Seton's Porms of Decrees, IsC Am. ed. 166. DECKEES AND OEDEES. 357 but to keep and retain the same in your own hands, until the further order of our said court, or some one of the justices thereof. Witness, L. S., Esquii-e, at B., this day of G. C. W., Clerk. (11.) Injunction Dissolved or Continued on Motion. Upon motion, etc., by counsel for the defendant [if plaintiff appears, and upon hearing counsel for the plaintiff], and upon reading the order dated, etc. [Enter affidavits and answers, if any, and, if plaintiff does not appear, an affidavit of service of notice of this motion on the plaintiff .'\ This court doth order, that the injunction awarded by the said order, dated, etc., do stand dissolved [or, be continued until the hearing of this cause, or until the fui-ther order of this court.] (12.) Continued at the Hearing. And it is ordered that the injunction awarded against the de- fendant H., by the order dated, etc., be continued until further order. (13.) Committal for Breach of Injunction. Whereas the plaintiff, on the day of , obtained an injunction [recite injunction ; or, if writ not issued and served, whereas by an order dated, etc., recite order for an injunction']. Now upon motion, etc., and upon [if the defendant appears, hearing counsel for the defendant and] reading [if the defendant does not appear, an affidavit, of, etc., filed, etc., of notice of this motion to the defendant] the said order, the aflSdavit of, etc. ; and this court, being of opinion, upon consideration of the facts dis- closed by the said affidavit of, etc. [or, the said affidavits], that the said defendant has been guilty of a contempt of this court by a breach of the said injunction, doth order that the said defendant A. do stand committed to the prison for his said contempt. 18. Order for an Issue. P , 88. S. J. C. In Equity. J. A. vs. C. L. And now, on motion of the plaintiff, and after hearing the parties, the court doth think fit and proper, and doth order, that 358 APPENDIX. the matters of fraud alleged in the bill, and in dispute in this cause, be tried and determined by a jury on the following issue to be joined, viz., etc. (2.) Issue Devisavit vel non. And this court being desirous of having the following question of fact decided by a jury, that is to say : " Whether the paper writing dated, etc., in the pleadings mentioned, purporting to be the wUl of C, of, etc., is or is not the last will and testament of the said C." It is ordered that an issue \or issues], etc. (3.) Issue as to Sanity, Validity of Deed, and Fraud. Whether M., in, &c., named, at the time of the execution of the indeatures dated, etc., in, etc., mentioned, was of sound mind, understanding, and capacity to execute the said deeds. 2. Whether the said deeds were obtained from the said M. by fraud or imposition.^ 19. Order for Receiver to Repair Buildings. Let the works and repairs on the farm in the occupation of, etc. , at, etc., mentioned in the affidavit of, etc., be done and executed by, etc., according to the specifications and estimates contained in the exhibits K and L in the said affidavit referred to ; and let the said works and repairs be done and executed under the direction and superintendence of the defendant T. , the receiver of the rents and profits of the trust estates in question in these causes ; and let, upon the said works and repairs being certified to have been properly executed, according to the said several specifications and estimates, the said receiver be at liberty to paj- to the said, etc., the sum of $ , and be allowed the same on passing his accounts ; and let timber of the value of $ be taken oil the said trust estates for the said repairs and works.^ 20. Order to Deposit in Court Docuinents admitted by Answer. It is ordered that the defendant A., within (seven) days after service of this order, produce and leave with the clerk, etc., the several documents mentioned in the answer of the said defendant, ' Issue to try Lunacy, see Matter of Wendell, 1 Johns. Ch. 603. 2 See Seton's Forms o£ Decrees, 1st Am. ed. 215-230. DECREES AND OEDEES. 359 filed the day of , and in the schedule thereto, and admitted to be in his possession or power, with liberty for the plaintiff, his solicitors and agents, to inspect and peruse the same, and take copies and abstracts thereof, and extracts therefrom, as he shall be advised, at his expense. And the clerk, etc. , is to produce the same upon any examination of witnesses in this cause, and at the hearing thereof, as the plaintiff shall require. 21. Decree pro Confesso, where Defendant does not appear at the Searing. This cause coming on, etc., in the presence of counsel for the plaintiff [if there are defendants who appear, add, and for the defendants A. and B.J ; and whereas, etc. \recite shortly the pro- ceedings for obtaining the appearance of the defendant^ : And upon reading the plaintiff's bill duly, etc. ; and upon hearing what was alleged by the counsel for the plaintiff [and for the defendants A. and B.], this court doth order that the plaintiff's bill be taken pro confesso against the said defendant C. And doth order and decree, etc. 22. Dismissal of Bill. (1.) This cause coming on, etc., this court doth order that the plaintiff's bill do stand dismissed out of this court \if there are other defendants who do not appear, or if dismissed against one of several defendants, as against the defendant B.], with costs to be paid by the plaintiff A. to the said defendant B. ; and to be taxed by the, etc. [in case the parties differ]. (2.) Dismissal without Prejudice / Seasons stated. ' This cause came on to be heard at this term, and was argued by counsel ; and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed by the court, that the plaintiff is entitled to no specific lien or security upon either of the vessels mentioned in the plaintiff's bOl, and has no equity to be relieved in respect thereof, and that his bill be dismissed with costs to the defendant, without prejudice to his right to come in and receive a dividend of the said R.'s estate, in common with the other creditors of the said estate.^ 1 Hunt V. Rousmanier, 3 Mason, 307. 360 APPENDIX. 23. Leave to enter Decree nunc pro tunc. Upon motion, etc., who alleged that the time for entering the decree [or order] made in this cause, and dated on the day of , expired on the daj' of ; this court doth order, that the said decree [or order] be entered nunc pro tunc. 24. Order to turn over to Prison. The defendant A. being this day brought to the bar of this court by the, etc., attending this court [or if brought up by habeas, say, by virtue of a writ of habeas corpus cum causis, directed to the sheriff of , or the keeper of the prison]., to answer his contempt in not, etc. [state the default in respect of which the process issued'], and still persisting in his said contempt. It is upon motion, etc. ordered, that the said defendant A. be turned over to the, etc., prison, and do there remain until he shall, etc. [state what he is required to do] clear his contempt, and this court make other order to the contrary.^ 25. Objections to Draft of Master's Meport. In Chancery [or Equity]. R. R. B. et al. vs. I. McV. et al. Objections taken by the defendants to the draft of the report in this cause, prepared by M. H., Esq., the master to whom this cause stands referred. 1st Objection. For that, in the computation of the interest due upon the bonds and mortgages mentioned in the report, the master has stopped the interest on the day of j 18 , which ought to have been allowed to this time according to the decree, and at the same time the master has charged the defend- ant W. G. D. with the whole rents and profits of the premises in question down to the time of making his report. 2d Objection. For that an allowance ought to have been made to the defendant W. G. D. for the value of the firewood furnished by him to the tenants in possession, or a deduction on that account ought to have been made from the rents with which he is charged by the said report. ^ See Seton's Forms of Decrees, 1st Am. ed. 788-815, lor other forms of Orders for commitment for contempt. DECKEES AJvfD OEDERS. 361 od Objection. For that allowance ought to have been made for a greater quantity of stone fence built on the premises, and for rails brought thereon from other premises, or procured by the defendant W. G. D., according to the evidence before the master. 4th Objection. For that the defendant W. G. D. is charged by the report with interest on the annual balances of the moneys received, or which are charged to him for what he might have received for the said rents, when in fact such rents have not been annually received, and if so calculated, compound interest will in effect be charged against him, when at the same time no interest whatever is allowed on the debts or demands due on the said bonds and mortgages after the day of ,18 , and also for that no interest is allowed on the sums credited to the said W. G. D. for the additional building, and the stone wall, and other fences, and improvements made or caused to be made by him on the premises. J. R., Solicitor. 26. Order for an Attachment for Default on part of Defendant. Whereas, by the decree [or judgment, or order] dated the day of , it was ordered [recite the direction for the act to be done']. Now upon motion, and by counsel for the plaintiff. A., who alleges that the defendant, B., has not [state the defauW], as by the affidavit of filed, appears, and upon hearing counsel for the defendant, and upon reading the said decree [or judgment, or order] and the said affidavit, this court doth order that the said plaintiff be at liberty to issue a writ of attach- ment against the said defendant for his contempt in that [state the defauW] . And it is ordered that the said defendant do pay to the said plaintiff his costs of this application and of the said attachment.^ 27. Order for Sequestration on Return of Attachment. Whereas, by the decree [or judgment, or order] dated the day of , it was ordered [recite the direction required to he performed?^ ; now, upon motion by counsel, etc., who alleged that an attachment issued against the defendant, B., for his contempt in that [state the defauW] directed to the sheriff of , and that the said sheriff hath retained the said B. 1 See Seton's Forms of Decrees, 1st Am. ed. 798. 362 APPENDIX. as a prisoner in his custody; and upon reading the said decree [o?* judgment, or order] and the said attachment and the return thereon : This court doth order, that a commission of seques- tration do issue, directed to certain commissioners to be therein named, to sequester the said B.'s personal estate, and the rents, profits, and issues of his real estate, until the said B. shall \_state the act required to be done'], clear his contempt, and this court make other order to the contrary.^ XII. RECEIVERS. 1 . Prayer for Receiver over Partnership. That a proper person may be appointed receiver, to collect and get in all the outstanding debts and moneys due to or on account of the said partnership business, and also to take possession of all the stock in trade, effects, and property of everj' nature and kind, of or belonging to the said partnership ; that the defendant maj' be ordered to deliver up to such person all the stock in trade, effects, and propertj' of every nature and kind of or belonging to said part- nership, in his possession or under his control, and also all money, notes, drafts, bills of exchange, checks, or other evidences of indebtedness due and owing to said partnership, together with all books of account, accounts, receipts, vouchers, and papers of every nature, belonging or pertaining to said partnership ; and that the said stock in trade, effects, and property of or belonging to the said partnership may be sold and converted into money by said receiver, by and under the direction of this court ; and that such other and further relief may be had in the premises as equity may require, and as the court shall deem just. 2. Order appointing Receiver over Partnership. [Title of cause.] It is ordered that A. B., of ,.be, and he is hereby, appointed receiver to collect, get in, and receive the outstanding debts and moneys due to or on account of the said partnershii? ^ See Seton's Forms of Decrees, lat Am. ed. 794. EECEIVEES. 363 business of , at , and also to receive and take possession of all the stock in trade, effects, and property of every nature and kind, of or belonging to the said partnership, upon his filing a bond with the clerk of this court in the penal sum of dollars, with sufficient surety, to be approved by , conditioned for the faithful performance of his duties as such receiver ; and let the plaintiff and defendant deliver over to such receiver all the stock in trade, effects, and property of every nature and kind, of or belonging to said partnership, in their possession or subject to their control, and- also all money, notes, drafts, bUls of exchange, checks, or other evidences of indebtedness due to said partnership, together with all books of account, accounts, receipts, vouchers, and papers of every nature, belonging or pertaining to said partnership business. \_AiM such directions as are desired as to the management and winding up of the business, the sale of the stock in trade, effects, and good-will of the partnership, and the payment of debts by the receiver.'] And it is further ordered that said receiver, from time to time, make report to the court of all his doings in this behalf ; and that either of the parties to said cause, or said receiver, shall be at libertj- to apply to the court, from time to time, for such further order or direction as may be necessary. 3. Petition by Receiver for Discharge. [Title of cause.] Your petitioner, A. B., receiver duly appointed in the above entitled cause by order of this court, bearing date on the day of , 188 , respectfully shows that he has fully complied with all orders and directions heretofore made by this court touching his receivership ; that he has passed his accounts as such receiver to the day of , 188 , and has paid as directed by the court all payments and disbursements from time to time required of him ; \_state why receiver has ceased to be necessary ;'\ by reason whereof it is expedient that your petitioner should be discharged as such receiver. Wherefore your petitioner prays that he may be finally discharged from his receivership aforesaid ; that he may be ordered to pass his final account as such receiver, and to pay the balance that may be found due from him [as may be] ; and that thereupon the bond heretofore entered into on the day of , 188 , by your petitioner, as receiver in said cause. 864 APPENDIX. together with C. D. and E. F. as his sureties, maybe vacated. Or that such other order may be made in the premises as to your Honor maj"^ seem meet. And your petitioner will ever pray, etc. A. B., Receiver, 4. Order for Meceiver's Discharge. [Title of cause.] Let A. B., the. receiver of , appointed by the order of this court, dated the day of , 188 ; pass his final account, and upon the approval thereof, and the paj^ment by the said A. B. of the balance which shall be found due from him to [as may be], let him be finally discharged from his re- ceivership ; and thereupon, let the bond heretofore entered into on the day of , 188 , by said A. B. as receiver in this cause, together with C. D. and E. F. as his sureties, be vacated. B. RULES OF PRACTICE. I. RULES FOR THE REGULATION OF PRACTICE IN DIVORCE. I. At any time before the expiration of six months from the granting of a decree of divorce 7iisi, the libellee or any other per- son may file in the office of the clerk of this court for the county in which the libel is pending a statement of objections to an absolute decree ; such statement to set forth the facts on which it is founded, verified by affidavit. II. The application to make a decree of divorce absolute may be filed, at any time after the expiration of six months, with the clerk for the county in which the decree was passed. He shall thereupon examine the records and files, to see if any objection to making the decree absolute has been filed, and shall make a certifi- cate of the result of such examination, and state in a summary manner the material facts appearing of record in the case. The application and certificate, if no justice of this court is then sitting in the count}', shall be sent bj- the clerks in other counties than Suffolk to the clerk of this court for the County of Suffolk, who at some convenient time shall present the same to a justice of the court for his action. IL RULES FOR THE REGULATION OF PRACTICE IN CHANCERY. I. "When, in a suit in equity, the original process to require the appearance of defendants shall be a subpoena, it shall be in form following : — 366 APPENDIX. Commonwealth of Massachusetts. , ss. To A. B., of (addition) Greeting: [l. s.] We command you that you appear before our Supreme Judi- cial Court, nest to be holden at , -within and for the county of , on the day of next, then and there to answer to a bill of complaint exhibited against you in our said court by C. D., of (addition), and to do and receive what our said court shall then and there consider in that behalf. Hereof fail not, under the pains and penalties of the law in that behalf provided. Witness, M. M., Esquire, the day of in the year of our Lord J. N., Clerk. The writ shall bear the test of the chief justice, or of the first justice who is not a party to the suit ; it shall be under the seal of the court, and be signed by the clerk, and shall be served by the same officers and in the same manner as other original writs of summons are by law to be sei-ved. II. No injunction or other proceeding shall be ordered until the bill is filed, unless for good cause shown. When an injunction has been issued or ordered, the original billshall not be taken from the files, except for use before the court, or a justice thereof, without an agreement of counsel, or a special order of the court. III. There shall be rule days on the first Monday of each month, in all the counties except the County of Dukes County, for the return of process and the entrj' of all proceedings and orders which may be taken at the rules. IV. All process shall be made returnable at the term next after fourteen days from the date of the process, if required to be served fourteen days before the return day, or at the term next after thirty days from such date, if required to be served thirty days before the return daj', or at any rule day within three months after the date of the process ; and when made returnable at a rule day, the subpoena shall be altered accordingly. If a partj:- shall not be found, a copy thereof may be left at his usual place of abode ; and the truth of the case being returned by the officer, if it shall be made to appear to the court that the party has actual notice of the suit, no other service shall be required ; otherwise, such notice shall be given as the court shall order. KULES OF PEACTICE. 367 V. Whenever it shall appear that a defendant resides out of the Commonwealth, the clerk, on application of the plaintiff, at any time after the filing of the bill, shall enter an order requiring such defendant to appear and answer the plaintiff's bill, if in anj' part of the United States east of the Mississippi River, or the States of Louisiana, Missouri, Iowa, or Minnesota, within one month ; if within any other of the United States, or New Brunswick, Nova Scotia, or Canada, within two months ; if elsewhere in the United States, or in Great Britain, Ireland, or France, within three months ; and if in other foreign parts, within six months, from the rule day next succeeding the date of such order. The order shall state the title of the suit, and shall set forth briefly the substance of the plaintiff's bill. A cop^- of the order shall be served on such defend- ant personally, or published three times, in different weeks, within thirty da^-s after the date of the order, the last publication to be fourteen days at least before the time of appearance, in some newspaper published in the county where the suit is pending ; and proof of such service shall be made by affidavit, or in such other manner as the court may order. VI. Bills, answers, pleas, and deimurrers may be printed or written. If printed, they shall be on paper of the usual quarto size ; and the reasonable expense of printing the same may, at the discretion of the court, be taxed in the bUl of costs. VII. The defendant shall answer fully, directly, and specifically to every material allegation or statement in the bill. VIII. The day of appearance shall be the return day of the writ or subpoena, when personal service shall be made on the defendant, or he shall have had personal notice of the suit ; or the return day of any order issued under the fourth or fifth rule, when no personal seiTice shall be made. And, if the defendant shall not appear and file his answer, plea, or demurrer within one month after the daj'' of appearance, the plaintiff may enter an order to take his bill for confessed; and the matter thereof may be decreed accordingly, unless good cause shall appear to the contrary. IX. The defendant may, at any time before the bill is taken for confessed, or afterwards by leave of the court, demur, plead, or 368 APPENDIX. answer to the bill ; and he may demur to part, plead to part, and answer as to the residue ; but, in any case in which the bill charges fraud or combination, a plea to such part must be accom- panied with an answer supporting the plea, and explicitly denying the fraud or combination, and the facts on which the charge is founded. X. The plaintiff may set down the plea or demurrer to be argued, or take issue on the plea, within fifteen days from the time when the same is filed ; and, if he shall fail to do so, a decree, dismiss- ing the bill, with costs, may be entered upon motion, unless good cause appear to the contrary. XI. If a plea or demurrer be overruled, no other plea or de- murrer shall be received, but the defendant shall proceed to answer the plaintiff's bill ; and, if he shall fail to do so within one month, the plaintiff maj' enter an order that the same, or so much thereof as is covered by the plea or demurrer, be taken for confessed ; and the matter thereof may be decreed accordingly, unless good cause shall appear to the contrary. XII. Upon a plea or demurrer being overruled or adjudged good, the party prevailing upon the question shall recover full costs from the time of the filing of such plea or demurrer, unless the court shall otherwise specially order. XIII. The defendant, instead of filing a formal plea or de- murrer, maj' insist on any special matter in his answer, and have the same benefit therefrom as if he had pleaded the same or de- murred to the bill. XrV". The defendant to a cross bill shall in no case be com- pelled to answer thereto, before the defendant to the original bill shall have answered such original bill. XV. The form of the general replication shall be that the plain- tiff joins issue on the answer. No special replication shall be filed but by leave of the court. XVI. The plaintiff shall reply, or file exceptions, or set down the case for hearing on the bill and answer, within one month after the answer is required to be filed ; or, if the answer be filed before RULES OP PEACTICE. 369 it is required, then within one month after written notice of such fiUng ; and if he fail so to do, a decree may be entered for the dis- missal of the bill, with costs. XVTI. If the plaintiff shall except to an answer as insufficient, he shall file his exceptions, and forthwith give notice thereof to the defendant or his solicitor ; and if within fifteen days the defendant shall put in a sufficient answer, the same shall be received without costs ; but if the defendant insist on the sufficiency of his answer, he shall, within fifteen daj's, file a statement to that effect, and give notice thereof to the plaintiff, and thereupon the exceptions shall be referred to a master; and either partj^, dissatisfied with the master's decision, may, within seven days after the filing of his report, set down the exceptions to be argued. If the exceptions shall be overruled, or the answer adjudged insufficient, the prevail- ing party shall recover costs of the reference to the master, and also of the hearing before the court. If the answer shall be adjudged insuflScient, a new answer shall be filed within fifteen days. XVin. Upon a second answer being adjudged insufficient, costs shall be doubled by the court ; and the defendant may be examined upon interrogatories, and committed until he shall answer them. XIX. The. plaintiff may, of course, and without payment of costs, amend his bill at any time before answer, plea, or demurrer filed ; but if the defendant's appearance shall have been entered, the plaintiff shall, at his own expense, furnish the defendant with a certified copy of the amendment filed. No amendment, however, shall be allowed, as of course, to a bill which has been sworn to by the party. XX. If the defendant shall demur to the bill for want of parties, or other defect which does not go to the equity of the whole bill, the plaintiff may amend at any time before the demurrer is set down for argument, or within fourteen days after the demurrer is filed, and notice thereof given to him, upon the payment of a term' fee. XXI. Upon the coming in of the answer, if the plaintiff shall find it necessary to amend his bill, in order to meet the case made by the answer, he may do so, by furnishing to the defendant a cer- 24 370 APPENDIX. tifled copy of the amendment ; and the plaintiff may also, at the same time, except to the defendant's answer to the bill as Originally filed. And in such case, if the defendant shall submit to answer further, or shall be ordered to answer further, he shall answer the amendments of the bill, and shall furnish a sufficient answer to the bill as originally filed, at the same time. XXII. The court may in its discretion allow the parties to amend their pleadings, and order or permit pleadings to be filed, or any proceeding to be had, at other times than are provided in these rules ; and may in aU cases impose just and reasonable terms upon the parties. XXIII. All notices in a ease required to be given to a party may be given to Ms solicitor of record ; and if transmitted through the post-office, post-paid, shall be deemed to have been received by the person to whom they are addressed, in due course of mail, unless the contrary shall appear by affidavit or otherwise. XXIV. When the death of any party shall be suggested in writ- ing, and entered on the docket, the clerk, upon application, may issue process to bring into court the representative of such deceased party. XXV. When the circumstances of the case are such as to re- quire a bill of revivor, or supplemental bill, or bill in the nature of either or both, or the joinder of additional or different parties, the requisite allegations may be made by way of amendment to the original bill ; and, after service on any new parties, as in the case of an original bill, and service of copies of the amendments on all the defendants affected thereby, shall entitle the plaintiff to proceed as on an original bill. XXVI. In bills by executors or trustees to obtain the instruc- tions of the court, and in bills of interpleader, or in the nature of interpleader, no solicitor or counsel for the plaintiff shall ap- pear, or be heard, or act for or in behalf of any or either of the defendants. XXVII. At the expiration of one month from the day when issue is joined, unless the time be enlarged for cause shown, the case shall be considered as ready for hearing. BULES OF PEACTICB. 371 XXVIII. All facts well alleged in a bill, other than for dis- covery onl}-, which are not denied or put in issue by the answer, shall be deemed to be admitted. XXIX. Testimony taken by depositions shall be taken in the manner required by statute and by the rules of the court in actions at law. XXX. When any matter shall be referred to a master, he shall, upon the application of either partj^ assign a time and place for a hearing, which shall be not less than ten days thereafter ; and the party obtaining the reference shall serve the adverse party, at least seven days before the time appointed for the hearing, with a sum- mons, requiring his attendance at such time and place, and make proof thereof to the master ; and thereupon, if the party summoned shall not appear to show cause to the contrary, the master may proceed ex parte ; and if the party obtaining the reference shall not appear at the time and place, or show cause why he does not, the master may either proceed ex parte, or the party obtaining the reference shall lose the benefit of the same, at the election of the adverse party. XXXI. When the master has prepared a draft copy of his re- port, he shall notify the parties or counsel of a time and place when and where they may attend to hear the same, and suggest such alterations, if any, as they may think proper ; upon considera- tion whereof, the master will finally settle the draft of his report, and give notice thereof to the parties or counsel ; whereupon, after perusing the same, or being furnished with a copy thereof, if they so request and pay the usual fees therefor, five days shall be allowed for bringing in written objections thereto, which objections, if any, shall be appended to the report. No exception to a master's re- port will be allowed without a special order of the court, unless founded upon an objection made before the master, and shown by his report, and unless filed with the clerk within fifteen days from the filing of the report. Notice of the fihng of a master's report shall be forthwith sent by the clerk to each party or his counsel. XXXn. When exceptions shall be taken to the report of a master, they shall be filed with the clerk, and notice thereof shall forthwith be given to the adverse party ; and the exceptions shall 372 APPENDIX. then be set down for argument. In every case, the exceptions shall brieflj' and clearly specify the matter excepted to, and the cause thereof; and the exceptions shall not be valid as to any mat- ter not so specified. XXXIII. All hearings in equity shaU be had in the county in ■which the case is pending, if the court is in session for civil busi- ness therein ; unless otherwise ordered for special cause. XXXIV. When any party shall desire a hearing in equity before a single justice, except at a term held in the county where the case is pending, he may apply to a justice to appoint a time and place for the hearing ; and when such time and place shall have been appointed, he shall give notice thereof to the adverse party, or his solicitor, through the post-ofHce, post-paid. But this rule shall not prevent a party from obtaining a preliminary injunction, or a dissolution of an injunction, or other order, upon a shorter notice, or without notice, if the court shall think the same reasona- ble. And cases may be heard by consent of parties, and the per- mission of the court, without such notice. XXXV. At any hearing before a single justice upon any inter- locutory question or for a final decree, the evidence shall not be reported to the full court, unless one of the parties, before any evidence is offered, shall request that the same be so reported, or the justice shall, for special reasons, so direct ; and the justice will appoint a suitable disinterested person to take the evidence. The expense of taking the evidence shall be paid by the party request- ing the taking of the same, to be allowed in the taxation of costs, if costs are decreed to him. The allowance to the person appointed to take the evidence shall be fixed by the court, and shall not ex- ceed ten dollars a day. XXXVI. Whenever it shall be necessary or proper to have any fact tried and determined bj' a jury, the court will direct an issue for that purpose to be framed by the parties, containing a distinct affirmation and denial of the points in question, or in such form as the court shall order ; and the issue thus framed and joined shall be submitted to a jury, and be tried upon the like evidence as in a suit at law, together with such part of the answers, depositions, and other proceedings in the cause, as the court shall direct. RULES OF PEACTICE. 373 XXXVII. The solicitor of the party in whose favor a decree or order is passed shall draw the same ; and without reciting pre- vious proceedings, decrees shall begin, in substance, as follows : — " This case came on to be heard [or to be further heard, as the fact may 5e] at this term, and was argued by counsel; and there- upon, upon consideration thereof it is ordered, adjudged, and decreed," etc. But if it is intended that the final decree shall serve as a record of the case, proper recitals of previous proceedings may be inserted therein. XXXV ill. The foregoing rules shall apply to hearings upon probate appeals, so far as the same are applicable thereto ; and the last seven of the common law rules shall apply to proceedings in equity and probate. XXXIX. The clerk shall keep a separate docket for equity cases and probate appeals, upon which all the proceedings in such cases shall be entered. By the Court, Geo. W. Nichols, Clerk. in. ORDER OF BUSINESS IN SUFFOLK COUNTY. The general order of business in the Supreme Judicial Court in the County of Suffolk will be as follows : — I. Arguments before the Full Court. — The full court will sit for the argument of cases upon the docket of the court for the Commonwealth, for three weeks from the Tuesday next following the first "Wednesday of January ; from the first Tuesday of March to the first Tuesday of April, and from the second Tuesday of Novem- ber until Thanksgiving Day ; excepting Saturdays. II. Trials by Jury. — Jury trials will be held from the first Tuesday of April to the second Tuesday of June, and from the second Tuesday of September to the third Tuesday of October. 374 APPENDIX. The court will sit for jury trials morning and afternoon ; but will not, unless to finish a trial or to meet some special exigency, sit on Saturdays, except for hearing motions for new trials, settling bills of exceptions, and other matters relating to cases on the list for the jury, of which previous notice shall have been given to the presiding justice. ni. Trials by the Court in Common Law Cases. — The list of cases at common law for trial by the court without a jury will be taken up on the second Tuesdays of April and September, and be proceeded with in its order. IV. Cases of Divorce. — The list of cases of divorce, alimony, and the custody of children, will be taken up by the justice desig- nated to hear matters in equity at Boston, on the first Tuesdays of Ma3' and October, and be proceeded with in its order, giving precedence to the uncontested cases ; and no case will be heard during anj^ other month, except for special cause shown. V. Equity Hearings. — The justice designated to hear matters in equity at Boston will come in on every Tuesday and Friday throughout the year. From the fourth Tuesday of June to the second Tuesday of September no case will be heard on the merits, unless for special cause shown. During the rest of the year, sit- tings in equity and for the hearing of probate appeals will be held daily, if the business shall require it. A weekly list will be made up for Tuesday of each week, on which cases may be set down, either bj' motion to the justice at his first coming in on anj' pre- vious daj', or (except during the months of May and October) by agreement of counsel and notice to the clerk of the court in Suf- folk ; and cases shall be heard in the order of their entry on this list, unless the justice otherwise directs. No case once set down for hearing, and not ready when reached, shall be again set down within one month, except by leave of the justice ; and no case pending in another county than Suffolk shall be set down to be heard in Boston during a term of court in such other county, ex- cept for special cause shown to the satisfaction of the justice sit- ting in equity at Boston. INDEX TO EXILES. 375 INDEX TO RULES IN EQUITY. ADMISSION, Rule all facts well alleged in a bill other than for discovery shall be deemed to be admitted, if not denied or put in issue by answer . . XXVIII. AMEXDMENT, complainant may amend his bill any time before answer, plea, or demurrer filed of course and without costs XIX. but, if defendant has appeared, complainant shall, at his own expense, furnish him with a certified copy of amendment XIX. not allowed, as of course, to bill sworn to by the party XIX. if defendant demurs to bill, for any defect not afEeoting equity of the whole bill, complainant may amend before demurrer is set down for argument, or within fourteen days after it is filed and notice given to him, upon payment of a term fee XX. complainant may amend, if necessary, upon the coming in of defend- ant's answer, by furnishing, &c XXI. may except to defendant's answer at same time XXI. court may in its discretion allow, at other times than are provided in these rules XXII. and may impose just and reasonable terms upon the parties . . XXII. ANSWER, defendant shall answer fully, directly and particularly to every mate- rial allegation as if thereto particularly interrogated VII. when to be filed VIII. defendant to cross-biU not to be compelled to answer thereto before defendant to original bill has answered XIV. complainant may file exceptions to, as insufficient XVII. course of proceeding upon exceptions to XVII. upon a second being adjudged insufiicient, costs shall be doubled and defendant may be examined upon interrogatories and committed until, &c XVIII. complainant may amend, upon the coming in of the, by, &c. . . . XXI. and may except to answer at the same time XXI. if defendant then answers further, he must answer amendments, and furnish sufficient answer to original bill XXI. defendant may insert any special matter, instead of filing plea or de- murrer jvj.ii.. (See Pleadings.) 376 INDEX TO BXJLES. APPEARANCE, day of Vm. ARGUMENT of counsel, whether before court or jury, limited to two hours on each side, unless, &c. (xLii. C.L.) XXXVIII. when more than one counsel on same side, the time may be divided between them, as they may elect (xlii. C. L.) XXXVIII. BILL, not to be taken from files when injunction issued or ordered, unless, &c II. no injunction or other proceeding shall be ordered till bill is filed, unless for good cause shown II. may be taken for confessed if defendant do not appear and file answer, plea, or demurrer within one month after day of appearance VIII. complainant may amend, any time before answer, plea, or demurrer filed, of course and without costs XIX. but, if defendant has appeared, the complainant shall, at his own ex- pense, furnish him with certified copy of amendment . . . . XIX. no amendment to be allowed to, as of course, if sworn to by party . XIX. when and on what terms plaintiff may amend when bill demurred to for defect not going to equity of whole bill XX. plaintiff' may amend, if necessary, upon coming in of answer, by fur- nishing, &o XXI. in bills by executors or trustees to obtain instructions of court, no solicitor or counsel for plaintiff' shall appear, be heard, or act for any defendant XXVI. in bills of interpleader or in the nature of interpleader, same rule shall apply XXVL all facts well alleged in bill, other than for discovery, not denied or put in issue by answer, shall be deemed to be admitted . . XXVIII. (See Pleadings.) BRIEFS, before commencement of law argument, printed or written state- ments of points and authorities to be delivered by each party to the judges, reporter, and adverse counsel (xl. C. L.) . . . XXXVIII. to be on paper of usual quarto size (xl. C. L.) XXXVIII. to be signed by counsel (xl. C. L.) XXXVIII. authorities cited in, to be arranged under point tiiey are intended to support (XL. C. L.) XXXVIIL leading facts, with references to papers, to be specified in brief, where examination of evidence necessary (xL. C.L.) XXXVIII. CLERK, may issue process, to bring the representatives of a deceased party into court XXIV. to give notice of filing of master's report XXXI. to keep separate docket for equity and probate XXXIX. answerable for all records and papers filed in court or in his office (xLiii. C. L.) XXXVIIL to exhibit the latest records to the court on the first day of each term (XLV. C. L.) XXXVIII. COPIES, parties may at all times have, of records and papers filed in court or in clerk's office (xliii. C. L.) XXXVIII. INDEX TO EXILES. 377 COPIES FOR COURT to be written legibly, or printed, on paper of usual quarto size with margin (xxxix. C. L.) XXXVIII. COSTS, bill may be dismissed with, when complainant does not put in repli- cation, file exceptions, or set down case for hearing on bill and answer within one month after filing of answer, or within one month after written notice of fihng, if filed before required . . .XVI. upon exceptions to answer XVII. to be doubled upon second answer being adjudged insuflBcient . . XVIII. what, to be paid upon a plea or demurrer being overruled .... XII. if adjudged good, defendant to have his XII. terms of amendment of bill demurred to for defect not going to equity of whole bill XX. expense of taking evidence for report to full court, at hearing before a single justice, to be allowed in the taxation of, if, &c. . . . XXXV. reasonable expense of printing pleadings may at discretion of court be taxed in bill of . . VI. what, party prevailing, who neglects seasonably to file papers, &c., necessary to make up judgment and record shall pay on petition to have judgment recorded, &c. (xliv. C. L.) XXXVIII. COUNSEL or solicitor for plaintiff, in bills to obtain instructions, or of inter- pleader, shall not appear, be heard, or act for any defendant . . XXVI. CROSS-BILL, defendant to, not compelled to answer before defendant to original bill has answered XIV. DAY OF APPEARANCE, when to be VIII. if defendant does not appear and answer one month after, complain- ant may have an order to take the bill for confessed VIII. DEATH, when, of any party suggested in writing and entered on docket, clerk may issue process to bring representative into court .... XXIV DECREE, solicitor of party in whose favor a decree or order is passed shall draw the same XXXVII. form of commencement of XXXVII. DEPENDANT, when, resides out of Commonwealth, what order requiring answer may be entered, and how served V. may be examined- upon interrogatories and committed, until, &c., upon his second answer being adjudged insufficient XVIII. DEMURRER, when to be filed VIII. when complainant may amend after, for defects not affecting the equity of the whole bill XX. complainant may set down bill for argument upon plea or demurrer within fifteen days, &c ^■ or a decree dismissing the bill with costs may be entered, unless, &c. X. if demurrer be overruled, no other will be received, but defendant must proceed to answer bill XI. course of proceeding if he fail to do so XI. 378 INDEX TO RULES. DEMUREER, —continued. what costs party prevailing npou the question shall recover .... XII. demurrer may be inserted in answer XIII. (See Pleadings.) DEPOSITION, to be taken as required by statute and by the rules of the court at common law XXIX. DOCKET, clerk to keep separate, for equity and probate XXXIX. DRAFT REPORT of master, rules regulating XXXI. hearing on, notice of, &c XTXT. EXCEPTIONS, complainant must file, or, &c., within one month after answer is required XVI. or if answer filed before it is required, then within one month after written notice of such filing XVL otherwise bill may be dismissed with costs XVI. course of proceeding upon, to answer XVII. complainant may amend his bill, and except to answer to original bill at same time XXI. EXCEPTIONS TO MASTER'S REPORT, how taken and allowed XXXI. to be filed with clerk, and notice given to adverse party forth- with xxxn. to be then set down for argument XXXII. what they shall specify XXXII. not to be valid as to any matter not so specified XXXII. FILES, bill not to be taken from, when, &c II. FOREIGN PARTS, course of proceeding when a defendant resides in V. PRAUD, where the bill charges fraud or combination, a plea to that part must be accompanied with an answer denying the fraud or combination, and the facts on which the charge is founded IX. HEARING upon bill and answer, complainant must set down cause for, or, &c., within one month after answer is required XVI. or, if answer filed before it is required, then within one month after written notice of such filing XVI. otherwise bill may be dismissed with costs XVI. when causes shall be considered as ready for XXVII. all hearings in equity to be in county where cause is pending, if court be in session therein for civil business, unless, &c. . . XXXIII. when a party shall desire a, before a single justice, except at a term of the court in the county where, &c., he shall applj' to justice to appoint a time, &c XXXIV. shall give notice, when time, &c. is appointed, by mail . . . XXXIV. this rule not to prevent a person from obtaining a preliminary in- junction, &c XXXIV. cases may be heard without notice, by consent of parties and per- mission of court XXXIV. INDEX TO EULES. 379 SEA.'RTNG,— continued. of a cause before a single justice at the, the evidence will be re- ported to the full court, at expense of party requesting it before- hand XXXV. expense to be allowed him in taxation of costs, if, &o XXXV. INJUNCTION shall not be ordered till bill is filed, unless, &c II. when issued or ordered, bill not to be taken from files, unless, &c. . . II. INTERPLEADER, in bills of, or in bills in nature of interpleader, and in bills by execu- tors or trustees to obtain instructions, no solicitor or counsel for plaintiff shall appear, be heard, or act for any defendant . . . XXVI. INTERROGATORIES, defendant may be examined upon, upon second answer being ad- judged insufficient, and committed till he answer them . . . XVIII. ISSUE, court wiU direct issue for jury, when necessary or proper . . .XXXVI. how to be framed XXXVI. to be tried upon like evidence as in a suit at law, &c XXXVI. JUDGMENT, papers, &c., necessary to make up, and to complete record to be filed forthwith by prevailing party (xliv. C. L.) XXXVIII. course of proceeding, when papers, &c., not so filed within three months (XLIT.C.L.) XXXVIII. JURY, court will direct issues for, when necessary or proper .... XXXVI. issues shall be tried like a suit at law XXXVI. MASTER, course of proceeding before, when any matter referred to XXX., XXXI. to give notice of hearing on draft report XXXI. draft report of, rules regulating XXXI. objections to master's report, how made XXXI. exceptions to master's report, how taken, &c XXXI. exceptions to report of, to be filed with the clerk, and notice given to adverse party XXXII. to be then set down for argument XXXII. what exceptions shall specify XXXII. not to be valid as to any matter not so specified XXXII. NOTICE, in a cause required to be given to a party, may be given to his so- licitor of record XXIII. may be transmitted through the post-office, postage paid . . . XXIII. so sent, shall be deemed to have been received by the person to whom addressed, in due course of mail, unless the contrary shall appear by affidavit or otherwise XXIII. of filing exceptions to answer to be given defendant or his solicitor XVII. if defendant insist upon sufficiency of answer, shall notify plaintiff of filing statement to that effect XVII. of hearing on draft report, to be given by master XXXI. of filing of master's report, to be given by clerk XXXI. of exceptions to master's report, must be given to adverse party XXXII. to be given to adverse party when single justice, upon application, appoints time and place for hearing cause, &c XXXIV. 380 INDEX TO EULES. OBJECTIONS to master's report, how made ... XXXI. PARTY, if any shall die, on death being suggested on docket, clerk may issue process during vacation to bring his representatives into court . XXIV. if circumstances require the joinder of additional or different parties, the requisite allegations may be made by way of amendment to original bill XXV. service to be made on any new parties as iu case of an original bill XXV. copies of amendments to be served on all defendants affected thereby XXV. thereupon plaintiflf entitled to proceed as upon an original bill . . XXV. PLEA, when to be filed VIII. where the bill charges fraud or combination, a plea to such part must be accompanied with an answer, denying the fraud or com- bination, and the facts upon which the charge is founded . . . IX. complainant may set down plea or demurrer to be argued, or may take issue upon the plea, within fifteen days from the time it was filed X. if he fail to do so, defendant may enter an order to have the bill dis- missed with costs X. if plea be overruled, no other will be received, but defendant must proceed to answer bill XL course of proceeding if he fail to do so XL what costs party prevailing upon the question shall recover . . . XII. may be inserted in answer XIII. (See Pleadings.) PLEADINGS, may be printed or written VI. if printed, shall be on paper of usual quarto size VI. reasonable expense of printing may, at discretion of court, be taxed in bill of costs VI. defendant may, before the bill is taken for confessed, or afterwards by leave of court, demur, plead, or answer to the whole bill, or part of it, and may demur to part, plead to part, and answer to residue IX. course of proceeding, where defendant's plea or demurrer is overruled XI. court may in its discretion order or permit pleadings to be filed at other times than are provided in these rules XXII. and may impose just and reasonable terms upon the parties . . XXII. (See Answeb, Bill, Demurrer, Plea, Replication.) POINTS AND ATJTHOEITIES IN LAW ARGUMENTS. (See Briefs.) PROBATE APPEALS, these rules to apply to, so far as applicable XXXVIII. PROCESS, when original process to require appearance of defendants shall be subpoena, form of subpoena I. to bear the test of the chief justice, or first justice not a party to suit . I. to be under seal of court and signed by clerk I, to be served in the same manner and by same officers as other origi- nal writs of summons I. INDEX TO ETTLES. 381 PROCESS, — continued. all process to be made returnable at the next succeeding term, or at any rule day within three months IV. when made returnable at rule day, subpoena to be altered accordingly IV. if party is not found, v, copy thereof may be left at his usual place of abode IV. course of proceeding thereupon IV. when defendant resides out of Commonwealth, what order may be entered, and how served V. clerk may issue, to bring representatives of a deceased party into court XXIV. EECOEDS, clerk to exhibit latest book of, to court, on first day of every term (xlv. C. L.) . . . . , XXXVIII. RECORDS AND PAPERS shall not be taken from custody of clerk without his consent, unless, &c. (xLiii. C. L.) XXXVIII. but parties may at all times have copies (xlii. C. L.) . . . . XXXVIII. party prevailing in any suit shall forthwith file with clerk all papers and documents necessary to make up judgment and complete record (xliv. C. L.) XXXVIII. course of proceeding if same are not filed within three montlis (xliv. C. L.) XXXVIII. REFERENCE, upon, of any matter to a master, course of proceeding before XXX., XXXI. REPLICATION, no special, to answer to be filed but by leave of the court .... XV. form of general, shall be that plaintiff joins issue on the answer . . XV. plaintiff shall reply, or, &c., within one month after answer is re- quired to be filed XVI. if answer filed before it is required, then within one month after written notice of such filing XVI. bill may be dismissed with costs if plaintiff do not reply, or, &c., seasonably XVI. EEPORT of master, rules regulating XXX-XXXH. draft report, hearing on, notice to be given XXXI. objections to master's report, how made XXXI. exceptions to master's report, how taken XXXI. filing of report, notice to be given by clerk XXXI. at hearing before single justice, evidence will be reported to full court upon request of either party beforehand XXXV. expense of taking evidence shall be paid by party requesting the taking of same XXXV. expense to be allowed him in taxation of costs, if costs decreed to him XXXV. who to take the evidence XXXV. allowance therefor XXXV. REVIVOR, BILL OF, when circumstances are such as to require, or bill in nature thereof, the requisite allegations may be made by way of amendment to original bill :.•■.• •^-^^• service to be made on any new parties as in case of an original bill XXV. 382 INDEX TO ETJLES. REVIVOR, BILL OF, — continued. copies of amendments to be served on all the defendants affected thereby XXV. plaintiff shall thereupon be entitled to proceed as on an original bill XXV. RULE DAYS shall be on first Monday of each month, in all counties except Dukes County, for return of process and entry of all proceedings and orders which may be taken at the rules III. SERVICE OF PROCESS. (See Peocess.) SOLICITOR or counsel for plaintiff in bills to obtain instructions, or of interpleader, shall not appear, be heard, or act for any defendant XXVI. of party in whose favor a decree or order is passed shall draw the same XXXVII. form of commencement of decree XXXVII. SUBPCENA. (See Process.) SUPPLEMENTAL BILL, when necessary, the requisite allegations may be made by way of amendment to original bill XXV. service to be made on any new parties as in case of an original bill XXV. copies of amendments to be served on all the defendants affected thereby XXV. plaintiff shall thereupon be entitled to proceed as upon an original bill XXV. TESTIMONY taken by depositions shall be taken as required by statute, and by the rules of the court in actions at law XXIX. INDEX TO KULES. 883 INDEX TO EULES FOE THE EEGULATION OF PEACTICE IN DIVOECE. EULES REGULATING PEACTICE IN Page 365 ABSOLUTE DECREE, Rdle objections to, when and how made I. application for, how made II. application for, from counties other than Suffolk, how presented to court in Suffolk II. INDEX TO OEDER OF BUSINESS IN SUFFOLK COUNTY. EDLES REGULATING Page 373 FULL COURT, Rule arguments before !• TRIALS BY JURY H. TRIALS BY COURT in common law cases HI- HEARINGS IN CASES OF DIVORCE IV. HEARINGS IN EQUITY V. APPLICATIONS for hearings, how made '^■ ASSIGNMENTS for hearings, how made ■. . . . V. MERITS, hearings on, when * • INDEX TO SCHEDULE OF FORMS. ACCOUNT, P^«^ answer of, settled 335 of receiver, affidavit verifying 346 order for \ , 352 statement of, in answer 334 ADMrSlSTRATOR, plea that defendant never was 328 plea that plaintiff is not 829 ADMISSION FOR PURPOSES OF SUIT, answer making 334 AFFIDAVIT, and production of documents, summons for 347 general form of 345 in support of application to amend bill 345 verifying receiver's account 346 AMEND BILL, affidavit in support of application for leave to ....... 345 petition for leave to 338 summons for leave to 347 ANSWER, according to English practice 335 admitting for purposes of suit 334 and disclaimer 333 commencement of 332 conclusion of 332 exceptions to 336 further, when first insufficient 334 introductory words of formal party's 332 introductory words of infant's 332 making qualified denial 335 petition for leave to file supplemental 339 setting up Statute of Frauds 333 25 386 INDEX TO POEMS. ANSWER, — continued. Page setting up Statute of Limitations 333 settled account 335 statement of accounts 334 stating information and belief 334 summons for further time to 347 to amended bill 334 to bill for redemption (statute form) 319 APPEAL, order on 352 ASSIGNEE, commencement of bill by 317 ATTACHMENT, notice of motion for 338 order for, on default of defendant 361 petition for, for breach of injunction 343 ATTORNEY GENERAL, commencement of information by 317 BILL, by creditors against corporation 321 commencement of 317 for redemption of mortgage . . 318 for specific performance 322-324 to annul a contract 321 to reform a conveyance 820 to reform a policy of insurance 321 to l-estrain use of secret process 321 CHARITY, decree for regulation of 353 COMMENCEMENT, of answers 332 of bills, by lunatic 317 by infant 317 by assignee 317 by creditor of insolvent 317 in suits by information 317 by executor 318 by shareholders in a company 318 of demurrers 325 of pleas 327 COMMITTAL, for breach of injunction 357 for contempt qqq CONTEMPT, notice of motion for attachment for 338 order for committal for 3g() INDEX TO FOKMS. 387 CONTRACT, P^e^ bill to annul 321 COXVEYANCE, bill to reform 320 CREDITOR, bill by, against corporation 321 of insolvent, commencement of bill by 317 DECREE, petition to rectify 341 DECREES AND ORDERS 348-362 DEMURRER, commencement and conclusion of 325 for multifaxiousness 325 for want of equity 325 for want of parties 326 petition for leave to withdraw 340 plea and answer 326 statute form of 320 to a bUl of interpleader 326 where discovery might subject defendant to pains and penalties 326 DIRECTIONS TO MASTER, order for usual 351 DISCHARGE, order for, of receiver 364 prayer by receiver for 363 DISCLAIMER, answer and 333 DISMISSED, decree that bill may be 359 notice of motion to have bill 337 petition for leave to have biU 341 DOCUMENTS, order to deposit in court 358 ENTRY OT DECREE NUNC PRO TUNC, motion for leave for 360 EQUITY, demurrer for want of 325 EXCEPTIONS, notice of filing of 337 notice of setting down for hearing 3o7 to answers for insufficiency 336 for scandal 336 EXECUTOR, commencement of bill by 318 000 INDEX TO rOEMS. FOREIGN DEBTOK, Page injunction against transfer of property of 356 FRAUD, bill to annul contract for 321 FRAUDS, STATUTE OF, answer setting up 333 FULL COURT, case reserved for 352 HABEAS CORPUS, petition for 340 INFANCY OF PLAINTIFF, plea of 328 INFANT, coming of age, petition by, to dismiss bill 340 commencement of bill by 317 introductory words of answer of 332 INFORMATION, commencement of suit by 317 INJUNCTION, bill for, to restrain use of secret process 321 motion to modify 343 notice of motion for 337 notice of motion to dissolve 338 orders for staying waste 355 staying nuisance 355 on dissolution of partnership 355 restraining negotiation of securities 355 restraining transfers of stock . . . > 356 restraining transfer of property of foreign debtor . . . 356 dissolution of 357 continuance of 357 committal for breach of 357 petition for attachment for breach of * . . ■ 343 with receiver 342 INSUFFICIENCY, exceptions to answer for 336 INTEREST, plea of want of, in defendant 328 INTERPLEADER, demurrer to bill for 326 ISSUE AT LAW, notice of motion for 333 orders for 357 INDEX TO POEMS. 389 LIMITATIONS, STATUTE OF, answer setting up ... . o?, LUNATIC, , . . rfdd commencement of bill by 31 7 MASTER, objections to report of ... . oor, MORTGAGE, *^^" bill for redemption of (statute form) 3I8 decree declaring deed to be ... qi;q MOTION, ^^"^ decree on oaq order on gg^ order on, refused 35j notices of 33't to modify an injunction 343 MULTIFARIOUSNESS, demurrer for 325 NOTICE, of filing exceptions 337 of setting down exceptions for hearing 337 of motion that bill be dismissed 337 for an injunction 337 for an issue at law 338 to dissolve an injunction 338 for an attachment for contempt 338 NUISANCE, injunction staying 355 PARTIES, demurrer for want of 326 petition for leave to make new 339 PARTNERSHIP, injunction on dissolution of 355 order appointing receiver over 362 petition for receiver over 362 PARTY, introductory words of answer of formal 332 PENDENCY OF FORMER SUIT, plea of ' 329 PETITION, for attachment for breach of an injunction 343 for habeas corpus 340 for injunction and receiver 342 for leave to amend bill 338 for leave to amend bill by adding defendant 339 for leave to dismiss biU, by infant coming of age 340 for leave to file a bUl of review 344 390 INDEX TO FORMS. PETITION, — continued. Page for leave to file supplemental answer 339 for leave to make new parties 339 for leave to withdraw demurrer or plea 340 for leave to withdraw r^lication and amend bill 341 for plaintiff to dismiss his bill 841 order on 350 to rectify a decree or order 341 PLEA, commencement and conclusion of 327 of former suit pending 329 of purchase for valuable consideration 330 of release 33X petition for leave to withdraw 340 that defendant has no interest 328 that defendant never was administrator 328 that plaintiff is an infant 328 that plaintifE is not administrator 329 to a bill of revivor 330 to a supplemental bill 330 PRO CONFESSO, decree for taking bill 359 PURCHASE, BONA FIDE, plea of 330 RECEIVER, affidavit verifying account of 346 order appointing 3Q2 order for discharge of 364 order to repair buildings 358 petition for injunction and 342 petition by, for discharge 364 prayer for, over partnership 362 REDEMPTION OF MORTGAGE, bill for (statute form) .... 318 REFORM, of conveyance, bill for 320 of policy of insurance, bill for 321 RELEASE, conclusion of plea of 331 REPLICATION, petition for leave to withdraw 341 REPORT, objection to master's 3gO RESERVING CASE FOR FULL COURT, order ocg RESIDUARY FUND, order settling ogo INDEX TO FORMS. 391 REVIEW, PAGE petition for leave to file bill of 344 REVIVOR, plea to a bill of 330 SCANDAL, exceptions to answer for 336 SECURITIES, injunction against negotiation of 355 SEQUESTRATION, order for 361 SHAREHOLDER IN COMPANY, commencement of bill by 318 SPECIAL PETITION, order on 351 SPECIFIC PERFORMANCE, bills for 322-824 decrees for 348 STATUTE OF FRAUDS. (See Frauds.) STATUTE OF LIMITATIONS. (See Limitations.) STOCK, injunction against transfer of 355 SOIMONSES, for affidavit and production of documents 347 for further time to answer 347 for leave to amend biU 347 SUPPLEMENTAL BILL, plea to o . . . . 330 WASTE, injunction staying 355 WILL, decree establisbing 352 GENERAL INDEX. ACCIDENT, P^^B jurisdiction in cases of 275 statute concerning cases of 12 ACCOUNT, bill by creditor to reach sum due on 269 cross-bill not necessary in suits for 77 parties to suit for taking 36 pleading stated 113 reference to master to state 149 statute concerning action of 8 suits in equity where action would not lie 267 ACTION AT LAW, treated as suit in equity 281 ADMINISTRATOK. (See Executor.) ADMISSIONS, in the pleadings 166 et seq. when bill is taken pro confesso 180 AFFIDAVIT, how taken and when 174 may be used as formerly 172 to bill of interpleader 90 to support application for attachment 224 when necessary to support bill 51 AGREEMENT, pleading of 113 specific enforcement of . . 195 et seq. specific enforcement of oral 200 ALIEN, right of, to sue • 38 ALLEGATIONS, not admitted, must be proved 167 AMENDMENT, after demurrer overruled 102 bill dismissed for want of 219 changing form of action . 302 394 GENERAL INDEX. AMENDMENT, — continued. Page English practice concerning ^^^ of answers 132-134 of bills 127-182 after replication filed 125 answers to 123 not answered 183 not a new process 260 of pleas 135 provisioQS relating to, remedial 303 substitute for supplemental bill 78 waiver of motion 231 when new suit is barred 302 AMOUNT OF DAMAGES 31 ANNUITIES, suits for sale of land subject to 310 ANSWER, in general 113-123 amendment of 132 defence by 284 demurrer contained in 101 distinguished from plea 105 effect on appointment of receiver 234 exceptions to 136-140 in aid of plea 109 in support of plea 106 insufficient, equivalent to none 62, 179 need not be sworn to 284, 297 of corporation need not be under seal 297 of one co-defendant 168 process for compelling 223 relief on facts stated in 76 supported by oath 169 to state direct defence 77 united with demurrer or plea 96 when not filed 61 when taken to be true 167 APPEAL, frivolous, how punished 301 from appointment of receiver 234 from final decrees 285-289 from interlocutory decrees 165, 287, 302 orders during pendency of 295 report of facts on 295 APPEARANCE OF DEFENDANT 59, 60 dismissal of bill before 217 ARREST OP DEFENDANT 57 on prayer for ne exeat 58 for contempt 225 GENEKAL INDEX. 395 ASSIGNEE p^^^ of chose in action, suit by 35 ASSISTANCE, WRIT OF 226 ATTACHMENT, WRIT OF, suit in equity commenced by 50 299 in general 993_oo5 ATTORNEY GENERAL, informations in name of 39 party to suits concerning public charities 39 255 taking bill pro confesso against . 179 AWARD, pleading of 1X3 BANK, equitable jurisdiction over 311 statute concerning insolvent 8 BANKRUPT, ■when not necessary defendant 47 ■when plaintifE is, efEect on bill 221 BANKRUPTCY, arising after suit 104 BILL IN EQUITY, kinds of, and requisites 67-69, 78 filed -without authority 217 formal parts of 50, 296 inserted in -writ 50 may be signed by attorney 50 plea to form of 110 statute concerning indorsements 6 statute substituting action at law 9 synonymous -with petition in statute 71 taken ^ro confesso 59-64 ■when -wholly defective 81 dismissal of. (See Dismissal.) BILL OF RIGHTS, provision of, concerning jury trial 159 BONDS, allowance of interest on 151 of receiver 234 on granting injunctions 212 statute concerning forfeiture of 2 BUILDINGS, suits to restrain unauthorized use of 308 BURDEN OF PROOF, in suits for specific performance 196 CERTIFICATE, accompanying demurrer 100 396 GENERAL BSTDBX. CESTUI QUE TRUST, Page when proper party to bill 34 CHANCERY, creation of court 1 powers at adoption of Constitution 2 CHARITIES, Attorney General party to suits concerning 38 costs out of funds of 192 jurisdiction over 253 what are and what are not public 255 CHATTELS, suits to compel redelivery of secreted 259-261 C HOSES IN ACTION, subject to sequestration 226 COMMENCEMENT, of suits in equity 50, 70, 281 COMMISSIONER. (See Master.) CONCEALMENT, of chattels to avoid replevin 259 CONDITIONAL JUDGMENTS, statute concerning 3 CONTEMPT OF COURT, in general 228-227 by receiver 245 in contravening an injunction 215 in failing to appear before master 142 in interfering with receiver 239 process for, to compel answer, unnecessary when 179 CONTINGENT REMAINDER, sale of land subject to 311 CONTRACT, specific performance of 197 CONTRIBUTION, statute concerning 5 statute compelling, between mill-owners 8 suits to compel 261 COPARTNERS, foreign, as defendants 46 suits between 264 statutes concerning 6, 7 COPY OP BILL, in summons or writ 56 COPYRIGHT, injunction to protect 209 CORPORATION, answer of 48, 61, 120, 297 contribution by stockholders of 262 costs in suit against 190 GENERAL INDEX. 397 CORPORATION, — continued. Page creditors' bill against 272 foreign, bill to reach assets of 268 how sued 43 in suit against officers 43, 48 officer of, to verify bill 212 parties to suit to restrain 37 receivers on dissolution of 241 specific performance against 257 statute giving jurisdiction over 7 COSTS, in general 186-194 bin dismissed for non-payment of 218 contempt in non-payment of 224 on dismissal of bill 219 on frivolous appeals or exceptions 301 statute concerning 6 COURT OF LAW, injunction to restrain proceedings in 206 CREDITORS, receiver not appointed at suit of, when 235 CREDITORS' BILLS, in general 268-273 by some in behalf of all 42 death of plaintiff in 84 statutes concerning °t^ to set aside proceedings in insolvency 313 CRIMINAL ACTS, punishment of, not in courts of equity 281 CROSS-BILL 76 CY PRSS, doctrine of, considered 253 DAMAGES, affidavit of amount ' ^^ amount of, trifling ° j- in suits for specific performance ^^1 prayer for, allowed as amendment 131 DAMS, jurisdiction of Supreme Court over ^|^ trying title to lands flowed by °^^ DECREE, biU of review to reverse °' date of „„„ final, what is . . ._ when process to issue ^^^ appeals from ^^^ how enforced 398 GENERAL INDEX. DECREE, — continued. Page in United States courts 87 interlocutory, appeals from 287, 289 motion to dismiss bill after 218 motion to set aside 232 on bill taken pro confesso 178, 183 operation of pending appeals 295 DEED, compelling delivery of secreted 260 reformation of 275 DEFAULT. (See Pko Confesso.) DEFECTS, in original bill, how cured 79 DEFENCE, modes of 94, 284 equitable, in suits at law 207, 300 under English practice 121 DEFENDANTS, absent, entering appearance for 179 suits against 44 service on 57 appearance of 46, 59, 88, 177, 182 arrest of 57 bankrupt after decree 88 interest of, determined 83 joint, costs against 190 decree against one of 180, 185 219 plea to person of HO time for answering over I77 where remedy is against one of two 262 who are properly 43-49 DEMURRER, in general 94-102, 284 costs when overruled I9I DEPOSITIONS, when taken 172 DEVISEES, contribution between 261 DISCHARGE, of receiver • 246 DISCLAIMER .' jQg DISCOVERY, bills for 275 demurrer to ... ' ! 95, 100 plea to jQg costs in suits for i q-| defendant's appearance compelled gq defendant put in jeopardy by go GENERAL INDEX. 899 DISCOVERY, — continued. Page dismissing bill for 218 interrogatories to obtain 120 statutes concerning 5, 12 DISCRETION OF COURT, as to costs 186 as to injunctions 210 as to receivers 233 as to specific performance 195 DISMISSAL OF BILLS 217-222, 283 DISSOLVING INJUNCTIONS 214 DISTRINGAS, mitof 224 DOCKET 294 DOCUMENTS, production of, compelled 175 proof of 170 DOWER 257 DUPLICITY 105 ELECTION, between remedy at law and in equity 221 ENTRY, of decrees 290 EQUITABLE assets, bills to reach 268 statute concerning ^ defences, to actions at law "^^ mortgages, redemption of 249 EQUITY, _ commencement of suits in " dismissal of bill for want of ^^° hearings in, before single justice ^°° jurisdiction, derivation of iQ_oq where adequate remedy at law ■ ^^ -^ statutes concerning "' '^ jurisprudence, origin and growth of ^ matters of, combined with matters of law - - powers restricted ESTATES TAIL, g statute concerning equitable EVIDENCE, 166-176 in general _ jjg answer treated as -j^g^ bill taken pro cortfesso as 147 153 exceptions to, before master . ' 152 in master's report ^ ggg on appeal 400 GENERAL INDEX. EVIDENCE, — continued. Page parol, in certain cases 251 publication of 176 reporting 292 statute concerning 9 uncertainty of 263 EXAMINATION OF WITNESSES 145, 175 EXCEPTIONS, costs on 187 frivolous 301 to answers 117, 136-140 to master's report 153 to refusal to appoint reporter 292 to refusal to frame issues 165, 288 EXECUTION, redemption of lands taken on 313 writs of 293 EXECUTOR, actions by or against 55 receiver of property held by . 235, 243 statute concerning 6 suits between joint 265 EX PARTE HEARINGS BEFORE MASTER 143 FACTS, framing issues of, for jury 301 report of, on appeal 295 trial of questions of 155, 166 FORECLOSURE. (See Moetgage.) FORFEITURE ON BOND, statute concerning 2 FRAUD, charges of 106 costs of unfounded charges of 188 discharge in insolvency prevented by 312 in cases of mistake . 275 in master's report 154 jurisdiction in cases of 273 must be proved I97 receiver in oases of 235 release obtained by 249 statute concerning 12 FRAUDS, STATUTE OF, defence of, by demurrer 99 effect of, on suits for specific performance 198, 257 pleading m FRAUDULENT CONVEYANCES 276-278 GENERAL INDEX. 401 GENERAL STATUTES, Page provisions of, in equity 12 GUARDIAN AD LITEM 43, 60 HARBOR COMinSSIONERS, compelled to remove buildings 306 HEARINGS 291 ''94 HEIRS, contribution between . 261 HOSPITAL, restraining prohibited use of 308 HUSBAXU AND WIFE, creditor's bill against 273 petition for writ of supplicavit 281 IMPERTINENCE, in affidavit 174 iu answer 136 INFANT, exceptions to answer of 138 guardian ad litem of 60 guardian of, joined as defendant 47 proceedings in insolvency against 312 receiver over property of 236 statute concerning lands of " 9 INFORMATION IN EQUITY 39, 51 INJUNCTIONS, in general • 205-216 particular cases 306, 308, 309, 315 preliminary forms 51 statutes concerning 6, 8 INSANE PERSON, statute concerning sale of land of 9 INSOLVENCY, equity jurisdiction in cases of 312 statutes concerning 9 INSTRUCTIONS, bills for 92 INSUFFICIENCY OF ANSWER . •• 137 INSURANCE POLICY, creditor's bill to reach 268, 271 INTEREST, computation of ^°^ want of, in defendant 103 want of, in plaintiff 9o INTERLOCUTORY motions 230 orders in suits for specific performance 201 20 402 GENERAL INDEX. INTERPLEADER, Page bills of, in general 89-92 costs of 189 INTERPRETATION, rules of, in equity .... 14 INTERROGATORIES, answers to 116 exceptions to answers to 140 filing of 283 part of bill formerly 72 IRRELEVANT MATTER IN BILL 114 ISSUE, plea must produce single 104 raised by the bill 73 raised by the replication 126 (See Jury.) JOINT TENANTS, statute concerning 6 suits between 264 JOINT TORTFEASORS 46 JUDGMENT, creditor's bill to reach proceeds of 268 pleading former 112 JURISDICTION IN EQUITY, damages as affecting 31 demurrer for want of 98 deriva.tion and construction of 4, 17, 278 of one court to exclude another 299 of Superior Court 247 over absent defendant 29, 44 plea to 109 statute concerning 20 •waiver of objections to 31 when remedy at law adequate 19-29 JURY,, framing issues of fact for 155-165 appeal from refusal to frame issues for 287, 802 LACHES, in amending 130, 134 in suits for specific performance 199, 259 in suits to enjoin payments by towns 306 in suits to set aside insolvency proceedings .... 312 LAW, ■ . . ox^ question of, for the court . . i Rfj LEGATEES, • ■ • • xuu contribution between ofil GENERAL INDEX. 403 efiect of, on suit for specific performance 258 of vendor of real estate 99, 253 not created by appointment of receiver 233 LIFE ESTATE, timber on land subject to 311 LIMITATIONS, STATUTE OF, pleading HI LUNATICS, receiver over property of 237 MANDATORY INJUNCTION 211 MARRIED WOMEN, statutes concerning lands of 7, 9 MARSHALLING ASSETS, parties to suits for 37 MASTERS, proceedings before 141-152 report of 152-154 need not contain evidence 293 statute concerning appointment of 6 MATTERS IN PAIS, pleading 112 MILL-OWNERS, contribution between 8 MISREPRESENTATION, contract obtained by 197 MISTAKE, jurisdiction in cases of 275 revising master's report on ground of 154 statute concerning cases of 12 in answer 133 of remedy 28 MORTGAGE, conveyances in nature of 273 creditor's bill to obtain benefit of 269 discharged by mistake 275 receiver of property subject to 235 redemption and foreclosure of 249-251 costs of suit 187, 193 parties to suit 35, 36, 47 venue of suit 54 reference to master for account of 150 relief from, undischarged after twenty years 315 statutes concerning "'5 surplus proceeds of sale under 276 trust not created by 252 404 GENBEAL INDEX. MOTIONS, Page in general 229-232 heard by single justice 285 statute concerning 6 MULTIFARIOUSNESS 75 demurrer for 99 MUTUALITY, want of, in contract 197 NE EXEAT, ■writ of 211 NEGLIGENCE. (See Laches.) NOTICE, after bill taken pro con/esso 178 of application for receiver 237 of motions 231 NUISANCE, information for abatement of 39, 208 suits for abatement of 42, 265 statute concerning 6 OATH, to amount of damages 282 to bills 282 to support answer 118, 297 to verify application for injunction 210 waiver of, effect on exceptions 138 ORAL CONTRACTS, specific performance of 258 ORDER OF COURSE, how served 230 ORIGINAL PAPERS, how taken from files 293 PART PERFORMANCE 259 PARTIES, in general 33-38 amendments concerning 130 entitled to costs 186 entitled to revivor 85 joinder of 36, 42 more than two 262 new 76, 79, 84 non-resident 29 to information 4q PARTNERSHIP, account of 36 74 GENERAL INDEX. 405 PARTNERSHIP, — cojiiinued. P^ge creditor's bill against 269 dissolution of 37, 48, 150 receiver over 238, 243 (See Copartners.) PATENTS, creditor's bill to reach 270 PERSONAL PROPERTY, mortgage of 250 PETITION, distinguished from motion 230 PLAINTIFF, administrator 40 bankruptcy of 221 death of 80, 220 in bills of interpleader 93 incapacity of 98, 110 statement of claim of 71 ■who may be 38, 41 PLEA, in general 103-113 amendment of 134 answer when oven-uled 135 in bar of bill dismissed 220 PLEADINGS, definition of 15 design of 11 forms of 283 how simplified 65 matters admitted by 167 POLICY OF INSURANCE, compelling production of 261 POSSESSION, of receiver 239 PRACTICE, definition of 15 in English courts 28 in Superior Court 294 PRAYER FOR RELIEF, amendment of 129 specific, not general 51, 297 PRIVITY 74 PRO CONFESS 0, biUs taken 177-185 defendant in contempt 224 PROBATE COURT, adequate remedy in 29 appeals from "89 406 GENERAL INDEX. PROCESS, Page service of 282 PROSECUTION, ■want of 219 PURCHASE FOR VALUABLE CONSIDERATION", pleading 113 RAILROAD, iurisdiction of Supreme Court over 309 mortgages of 250 receivers over . . . . , 242 REAL ESTATE, compelling action to try title to 314 of non-residents, suits concerning 29, 45 statute concerning compulsory conveyance of 8 RECEIVER, in general 233-246 creditor's bill to reach property in hands of 269 statute concerning 6 when bill taken pro confesso 184 RECORD, errors of, corrected 88 pleas founded on matter of 112 proof of matter of 170 REDEMPTION, of lands sold for taxes 305 of lands taken on execution 313 of mortgages. (See Mortgage.) REFERENCE. (See Master.) RELEASE, pleading 113 RELIEF, specifically prayed for 75 REMAINDER, creditor's bill to reach equitable 271 trying title to 315 REMEDY AT LAW, plain, adequate, and complete 17, 19-23 demurrer on ground of 101 efEect of granting full powers 279 in Probate Court 29 statute concerning 303 test of jurisdiction 101 REMOVAL OF SUIT, from Superior to Supreme Court 295 REPLEVIN, concealment to avoid 260 REPLICATION 124-126 GENERAL INDEX. 407 KEPOKT, p^,,^ to full court 289, 295 what is open on . 293 RESERVING CASE, for full court 290 RESERVOIR, jurisdiction of Supreme Court over 314 REVIEW, bills of 87-89 REVISED STATUTES, provisions of, in equity 7, 8 REVIVOR, bills of 84-86 RULE DAYS 228 RULES OF EVIDENCE 169 SCANDAL, in affidavit 174 in answer 136 in bill 75 need not be answered 114 SEISIN, writ of 293 SERVICE OF PROCESS 55-57 SEQUESTRATION, writ of 223-226 SIGNATURE, of bills, etc 282 SPECIFIC PERFORMANCE, in general 195-204, 256-259 costs 187 cross-bill 77 damages 304 foundation of 23 parties 37 reference to master 148 statute concerning 3 venue 55 STATUTES GIVING EQUITY JURISDICTION, 1-16 strict construction of 4 STATUTE OF FRAUDS. (See Frauds.) STATUTE OF LIMITATIONS. (See Limitations.) STREET RAILWAY 310 SUPERIOR COURT, jurisdiction of, in equity 247, 316 not to interpose in proceedings in Supreme Court 299 practice in equity in 294 statute concerning 14 transfer from, to Supreme Court 295 408 GENERAL INDEX. Page SUPPLEMENTAL BILL 78-84 SUPPLICAVIT, writ of 280 SUPREME COURT, not to interpose in proceedings in Superior Court 299 SURPRISE. (See Mistake.) TAXES, redemption of lands sold for 305 TELEGRAPH LINES, enjoining construction of 306 TENANTS, ill common 264 statute concerning 6 for life, statute concerning 8 TENDER, effect of, on costs 187 TESTIMONY. (See Witness.) TIME, for amendments 130 for filing amended answer 133 for filing exceptions 140 TITLE, answer need not discover 114 bill to establish 279 in suits for specific performance 199 petition to remove cloud from 314 reference to a master 148 setting forth particulars of 261 TOWNS, injunctions against 306 TRADE MARKS, protection of 209, 308 TRANSITORY ACTIONS, where brought 54 TRESPASS, prevention of 207 TRUST, acceptance of, by town 254 costs in suit concerning 192 creditor's bill to reach funds of 272 enforcement of 34, 40, 45, 252 on land purchased with stolen money 256 statutes concerning 3 8 transfer of funds subject to gjj^ TRUSTEE, answers of jgg appointment of 83, 252 GENERAL INDEX. 409 TRUSTEE, — continued. p bills for instructions by 92 costs against ... i qq cestid's claim against, not barred . ! ' 112 receiver of property held by 235 243 suits between joint . . . . . . , TRUSTEE PROCESS, equitable 270,299 receiver not liable to 240 VALUE, of matter in controversy . . no VENDOR, lien of 253 title of, in suits for specific performance . . . 200 VENUE, of suits in equity 54 299 VERDICT ' 165 VIEW, costs of 290 WAIVER, of right to jury 158 WARRANT, issued by master . . 141 WASTE, suits concerning .... . . ... 207, 265, 315 statute concerning .... 6 WIDOW, party to suit for specific performance 257 WILL, costs in suits couceming . 192 jurisdiction over . . 311 trust under 252 WITNESS, attesting 171 competency of . . . . 173 examination of ... . . . 144, 175 WRIT, of assistance 226 of distringas 224 of execution 293 of ne exeat 211 of seisin 293 of sequestration 223 of suppUcavit 280 return of 294