(JnrnFU SJam ^rlynnl Kibraty S.^ Cornell University VM Library rv»5< The original of tliis bool< is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http ://www. arch i ve . o rg/detai Is/cu31 924024685780 NOTES ON EQUITY PLEADING AND PRACTICE MASSACHUSETTS BY JAMES B. RICHARDSON BOSTON- thp: boston book company 1904 Copyright, 190$ By James B. Richabdson THE DNIVEBSITY PRESS, CAMBKIDGB, U. S. A. NOTE The following pages are the result merely of the habit of making notes of cases and other authorities referred to on questions of pleading and practice in equity, discussed or examined in the first division of equity of the Superior Court in Boston, in the last few years ; and were made merely for handy reference in future cases, with no thought of publishing them, or of their use by others; but it has been suggested that they may be of some use, at least to younger members of the bar, if made accessible ; if that shall prove to bo the case, the slight labor of putting them in the form here presented will be fully compensated. On many points, a few only of the cases origi- nally noted, are cited here ; these, of course, are the latest, for they are the better authority. In many cases, "The older precedents in equity," said Sir George Jessel, M. R., "are of very little value. The doctrines are progressive, refined, and improved, and if we want to know what the rules of equity are, we must look rather to the more modern, than to the more ancient cases. " In re Hallett's Estate, 13 Ch. Div. 710 (1879). IV NOTE This is especially true in respect to the forms of pleading and procedure in suits in equity, which have undergone great changes within the last few years. But the essential distinctions between legal and equitable remedies remain, and the necessity of observing them continues. If a " mastery of the science of equity pleading " is not now so indispensable to a lawyer as it was. deemed to be in the days of Daniell and Story, under the technical and complicated system which they described, a knowledge of the rules of plead- ing and practice in courts of equity is still con- ducive to professional success, and to the proper conduct of equity causes. J. B. R. Boston, June, 1904. CONTENTS PLEADINGS IN EQ The Bill .... UITY Pages 1-18 The Parties . . .... . . . 19-28 Parties Plaintiffs . . . 29-32 Parties Defendants . . . 33-35 Bills of Interpleader . . . . . 36-40 Cross-Bills . . . . 41, 42 Bills of Discovery ... . 43, 44 Supplemental Bills . . . . 45 Bills of Kevivor 45 Demurrers . . 46-52 Pleas . . . 53 58 Answers .... 59-63 Disclaimer 64 Replication . . . . 65, 66 PEACTICE IN EQUITY Pro Confesso . . 67-69 Interrogatories to the Adverse Party . . 70-79 ^Masters, their Reports, and Exceptions thereto . . . 80-88 POINDINGS BY the CoURT 89, 90 Trial by Jury 91-94 IV NOTE This is especially true in respect to the forms of pleading and procedure in suits in equity, which have undergone great changes within the last few years. But the essential distinctions between legal and equitable remedies remain, and the necessity of observing them continues. If a " mastery of the science of equity pleading " is not now so indispensable to a lawyer as it was. deemed to be in the days of Daniell and Story, under the technical and complicated system which they desci'ibed, a knowledge of the rules of plead- ing and practice in courts of equity is still con- ducive to professional success, and to the proper conduct of equity causes. J. B. R. Boston, June, 1904. CONTENTS PLEADINGS IN EQUITY Pages The Bill . . 1-18 The Parties 19-28 Parties Plaintiffs ... 29-32 Parties Defendants . 33-35 Bills of Interplkadeb ... .... 36-40 Cross-Bills . . 41, 42 Bills of Discovery . 43, 44 Supplemental Bills .... 45 Bills of Revivor .... 45 Demurrers .... 46-52 Pleas 53-58 Answers . .... 59-63 Disclaimer 64 Replication . 65, 66 PRACTICE IN EQUITY Pro Confesso . . . 67-69 Interrogatories to the Adverse Party . . 70-79 IMasters, their Rkports, and Exceptions THERETO 80-88 Findings by the Court . 89, 90 Trial by Jury 91-94 VI CONTENTS Pages Decekes 95-116 Injunctions 117-127 Contempts 128-133 Ueceivers 134-147 Xe Exeat 148, 149 Case Reserved or Reported 150 i^xceptions .... 15], 152 Appeals 153-157 Amendments 158-160 Bills of Review 161-164 Costs ... 165-170 Forms op Pleadings 171-173 Forms op Decrees 174-188 TABLE OF CASES CITED Abbott II. Bradstreet (3 Allen, 687) 166 Allen V. Frenuh (178 Mass. 539) 86 V. French (180 Mass. 487, 489) 12, 116 V. Turner (11 Gray, 436) 24, 25 Alvord V. Stone (78 Me. 296) 166 Ambler y. Choteau (107 U.S. 586, 591) 8 Am. Carpet L. Co. v. Chipmau (146 Mass. 385) ... 63 Amherst &B. R. R. ». Watson (8 Gray, 529) 77 Amy V. Manning (149 Mass. 487) 11, 17, 111 Angell V. Haddon (15 Ves. 244) 37 Anthony v. Anthony (161 Mass. 343) 30 Anthracite Ins. Co. v. Sears (109 Mass. 383) . . . 109 Arnold v. Commonwealth (80 Ky. 300) . . . .130 Ashton u. Atlantic Bank (3 Allen, 217) 24 Atty. Gen. v. Barbour (121 Mass. 573) 155 o. Sheffield (B D. M. & G. 304, 320) 14 u. Williams (178 Mass. 330, 335) 25, 116 Bailey v. Hemenway (147 Mass. 326) 54, 95 u. Stiles (3 N. J. Eq, 245) 61 Baker v. Carpenter (127 Mass. 226) . . . . : 74 V. Mayo (129 Mass. 517) ... 84 Ballou V. Hopkinton (4 Gray, 324) 27 Barry v. Abbott (100 Mass. 396) 48 Bartlett !). Batts (14 Ga. 5-39) 34 V. Johnson (9 Allen, 530) 166 V. Parks (1 Cash. 82) 4 Bassett v. Leslie (123 N. Y. 396) 39 VIU TABLE OF CASES CITED , Page Batchelder Petr. (147 Mass. 470) 37 Baxter;;. Massasoit Ins. Co. (13 Allen, 320) 77 Beasleyt). Texas &Pac. Ry. (191 U. S. 492) 120 Bennett w. Sweet (171 Mass. 60.0) . .... 16,110 Bill V. New Albany R. R. (2 Biss. 390) ... . . 141 Billings w. Mann (156 Mass. 203} 1,3,21 Birmingham t). Gallagher, e« a/s. (112 Mass. 190) . 21,28 Blair v. Telegram News Co. (172 Mass. 201) .... 12 Blancliardi). Cooke (144 Mass. 207, 215, 218) . . 68,147,156 Bliss V. Am. Bihle Soe. (2 Allen, 334) 167 t>. Parks (175 Mass. 539) 50 Blossom V. Negus (182 Mass. 515) 104 Bogle V. Bogle (3 Allen, 158) 168 Bond w. Fay (I Allen, 212) 169 Booraem v. N. H. R. Co. (40 N. J. Eq. 557) . . . .120 Boston & Worcester R. R. Cor. u. Sparhawk (1 Allen, 448) 103 Bottom V. Clarke (7 Cush. 487) Ill Bowditch V. Soltyk (99 Mass. 136) 166 Bradlee v. Appleton (2 Allen, 93) 104, 169 Brande «. Grace (154 Mass. 210) 112,123,124 Breck v. Barney (183 Mass. 139) 97 Bresnihan v. Sheehan (125 Mass. 11) 108 Brewer v. Boston Theatre (104 Mass. 378, 386) .... 11 Brooks V. Tarbell (103 Mass. 499) 91 u. Twitchell (182 Mass. 443) . 163 Brown !>. Bank (148 Mass. 300) . . . . . . 167 u. Home (8 Beav. 607) 69 V. Tallman (N. J. Eq. ; 54 Atl. Rep. 457) 49 BufEngton v. Harvey (95 U S. 99) 162 Burgess u. Seligman (107 U. S. 20) 6 Burlingame v. Bartlett (161 Mass. 593) 157 Burnett y. Cora. (169 Mass. 419, 429) ... . 156,166 Bushnell v. Avery (121 Mass. 148) 7 Butchers' Association u. Boston (137 Mass. 186) .... 104 Byers v. Franklin Coal Co. (106 Mass. 131) 158 Cadigan v. Brown (120 Mass. 493) 27 Cake V. Mohun (164 U. S. 311) 146 TABLE OP CASES CITED IX Page Campbell v. Maokay (1 My. & Cr. 618) 41) Carletoaw. Rugg (149 Mass. 550, 554, 655) 14,119 Carter v. Commonwealtli (96 Va. 791) 130 Cartwright v. Clark (4 Met. 104, 109) 42 Cartwright's Case (114 Mass. 230, 231,239) . 128,131,132,147 Cary v. Herrin (62 Me. 18) . 87 Cassidy;;. Sliimniin (122 Mass. 406, 410) 20,28 Cates V. Allen (149 U. S. 451) ... 16 Ca vender v. Ca vender (114 U. S. 464, 471) .... 63, 66 Cliapman v. Banker & Tr. Pub. Co. (128 Mass. 478, 479) 15, 17, 32 Chase v. Hubbard (153 Mass. 91) 89 Cheney w. Gleason (125 Mass. 166, 180) . . 104,153 Chipman v. Manufacturers' Nat. Bk. (156 Mass. 147) ... 96 Cliurchill V. Rioker (109 Mass. 211) 77, 79 Chute V. Quincy (156 Mass. 189) Claflin V. Low (157 Mass. 257) . Clapp V. Thaxter (7 Gray, 384) Clark V. Lee (185 Mass. 223) . Clason V. Corley (5 Sanf. 454) . Cleveland v. Hampden Savings Bk. (182 Mass. 110) Cobb V. Fogg (166 Mass. 466) V. Rice (130 Mass. 231) i Coburn v. Cedar Valley Land Co (138 U. S. 221) . Cockburn v. Thompson (16 Ves. 321, 329) . . Colt V. Woolaston (2 P. Wms. 154) Columbia Bk. Co. o. De Golyer (115 Mass. 69) Colvin V. Hartwell (5 CI. & Fin. (H. L.) 522) . . . Com. V. Eagle Fire Ins. Co. (14 Allen, 344) 146 V. Franklin Ins. Co. (115 Mass. 278) 142 V. Gould (118 Mass. 300) 141, 145 u. Hide & Leather Ins. Co. (119 Mass. 157) . . . 141 V. Mechanics' Ins. Co. (112 Mass. 192) ... . . w. Suffolk Trust Co. (161 Mass. 550) 94 Conant v. Perkins (107 Massi 79) Connelli; Morse (182 Mass. 439) Cooke V. Barrett (155 Mass. 413) 114 Copeland d. Crane (9 Pick. 73) 82 Corcoran y. Chesapeake Canal Co. (94 U. S. 741) .... 99 114 114 161 7 69 34, 51, 87 40, 50, 167 . . 42 20 2 . . 110 . 100 145 94 154 162 97 X TABLE OP CASES CITED Page Covellw. Heyman (111 U. S. 176, 182) 5,6 Cowdrey v. Galveston R. K. (9S U. S. 352) 146 Craig V. Kittredge (23 N. H. 231) 116 Cram v. Moore (158 Mass. 276) . . 80 Crandall v. Slaid (11 Met. 288) 168 Crawford!;. Langmaid (171 Mass. 309) 110 Crease et al. u. Babcock (10 Met. 525, 531) 19, 54 Creely v. Bay State Bk. Co. (103 Mass. 514) 50 Crocker w. Dillon (133 Mass. 91) 50 V. Rogers (58 Me. 339) . . ; 21 Crossman 1). Card (143 Mass. 152) 85 Crowell V. Cape Cod Ship Canal Co. (164 Mass. 235) . . 21 o. Keen (159 Mass. 352) 89 Culbert u. Hall (181 Mass. 24, 25) 91 Cummings v. Barrett (10 Cush. 186) 14 Cunningham v. Davis (175 Mass. 213) .29 Curran v. Burgess (155 Mass. 86) 99 Currier v. Esty (110 Mass. 536) 163 u. Howard (14 Gray, 511) 26 D'Arcy v. Beytagh (Flanagan & Kelly, 500) . ... 53 Darya. Kane (158 Mass. 376) 6,18 Davidson w. Jolinson (14 N.J. Eq. 112) 54 Davis y. Mills (163 Mass. 481) 74 V. Parker (14 Allen, 94) 101 .,■. Peabody (170 Mass. 397) 21, 28, 49 Davis & F. M. Co. y. Los Angeles (189 U. S. 207) . . 119 Davis el al. u. Bay State League (158 Mass. 434) .... 167 u. Davis (123 Mass. 590) ~ 91 Dearth v. Hide & Leather N. Bk. (100 Mass. 540, 543) 3, 51 Debs, 7n re (158 U. S. 695) . ... 13,125,128,129 Deehan I-. Johnson (141 Mass. 24) 65 Deerfield K Nims (110 Mass. 115) 24,25 Dehon v. Foster (4 Allen, 550) 95 Dennett v. Codman (158 Mass. 371) 94, 114 Denny v. Mattoon (2 Allen, 361) 130 Dexter D. Arnold (2 Sumner, 108) 83 V. Arnold (5 Mason C. C. 303) 164 TABLE OF CASES CITED XI Dimmock v. Bixby (20 Pick. 368) 48 Doanei'. Preston (183 Mass. 589) 51 Doherty v. Mercantile Trust Co. (184 Mass.) 12 Dole V. Wooldredge (142 Mass. 182) 92 Doody V. Pierce (9 Allen, 141) . 26, 65 Dorri;. Tremont Bank (128 Mass. 349) 91,151 Downing u. Elliott (182 Mass. 28) 121 Downs V. Fuller (2 Met. 135) . 104 Draper w. HoUings (163 Mass. 127) 16 DriscolU. Smith (184 Mass. 221) 1,50 Dudley v. Dudley (176 Mass. 34) 93 Duke u. King (6 Beavan, 1) 33 Dunphyw. Traveller N. Assn. (146 Mass. 495) .... 12 Dyer K. Shurtleff (112 Mass. 170) . ... 166 Dyke v. Stephens (30 Ch. Div. 189) . 74 East Tenn. Land Co. v. Leeson (183 Mass. 37, 38) . . 81-89 (185 Mass. 4) .... 97, 170 (178 Mass. 206) . . . 150 Eastman v. Plumer (46 N. H. 464) . . . .113 Edwards Hall Co. u. Dresser (168 Mass. 136) . 82, 83, 88 Elkins V. Camden, &e. Ry. Co. (36 N, J. Eq. 241) . 24 Elliott V. Balcom, et al. ( 11 Gray, 286) . 105, 163 Ellis V. Boston H. & E. K. Co. (107 Mass. 28) . 134 Ellsworth V. Curtis (10 Paige Ch. 105) ... ... 64 Emerson v. Atkinson (159 Mass. 356) . . . . . 26 Emery v. Parrott (107 Mass. 95) 99 Esty V. Clark (101 Mass. 36) 166 Evans v. Bacon (99 Mass. 213) . . ... . . 162 „. Hamlin (164 Mass. 239) . . 105 Everett v. Edwards (149 Mass. 588) 26, 28 Fairbanks v. Belknap (135 Mass. 179, 182) 87 Falmouth Bank v. Cape Cod Ship C. Co. (166 Mass. 550) . 137 Farley v. Blood (30 N. H. 354) 40 w. Kittson (120 U. S. 303) . . 55,56 Faulkner v. Wamesit Power Co. (158 Mass. 435) .... 28 XU TABLE OP CASES CITED Page Feleh «. Hooper (119 Mass. 52, 53) 34, 96 Fels V. Raymond (139 Mass. 98) 79 Fitzgerald v. Fitzgerald (165 Mass. 471) 154 Fletolier.!;. Bartlett (157 Mass. 113) 89 Florence Macli. Co. v Grover, &c. (110 Mass. 1) .... 125 Klye V. Berry (181 Mass. 442) 87 Flynn v. Flynn (183 Mass. 365, 366) 27, 31 Fogg V. Blair (139 U. S. 118) .... 8 t. Price (145 Mass. 513) 159 Foley w. Talbot (182 Mass. 462) 160 Folger V. Columbian Ins. Co. (99 Mass. 267) 140 Foote V. Gibbs (1 Gray, 412) 103 Forbes ». Tuckerman (115 Mass. 115) . 27, 67, 68, 96, 145, 153 Forrest v. River Lead Co, (165 Mass. 193) 37 Foss I). Nutting (14 Gray, 484) 76 Foster v. Foster (133 Mass. 179) 110 V. Goodrich (127 Mass. 176) 121 Fowle w. Torrey (131 Mass. 289) 23,28 Francis U.Daley (150 Mass. 381) 89 Frankel v. Frankel (173 Mass. 214, 216) 27, 129 Freeland v. Wriglit (154 Mass. 41)2) . . ... 81 French v. Peters (177 Mass. 568) ... .31, 87, 156 Frost V. Belmont (6 Allen, 152) .... .168 Frow V. De La Vega (15 Wall. 552) .68 Fuller V. Chapin (165 Mass. 1) 154 Gale V. Nickerson (151 Mass. 428) 15 Gamble v. Johnson (9 Mo. 597) 61 Gardner Inst. o. Ernerson (91 Me. 535) . 39 Garst V. Halll & Lyon Co. (179 Mass. 588, 590) .... 8 Gay u. Parpart (106 U. S. 690) 107 Geer v. Horton (159 Mass. 259) Ill George y. Reed (101 Mass. 378) 158 Gerding v. B. Tenn. Land Co. (185 Mass. 4) 101 Gerrish v. Black (109 Mass. 474) 96 V. Towne (3 Gray, 86) 9 Go£E V. Hathaway (180 Mass. 497) 68 Goldthwait v. Hay (149 Mass. 185) 42, 99 TABLE OP CASES CITED xni .462) Goodell V. Goodell (173 Mass. 140) Gordon v. Green (113 Mass. 259) . Grady v. Robinson (28 Ala. 289) . Grant v. Bryant (101 Mass. 567) . Gray v. Chase (184 Mass. 441) . . o. Parke (155 Mass. 4-33) . . Great Falls Co. v. Worster (23 N. H. Greene v. Canny (137 Mass. 64) Gregory v. Merchant's Nat. Bk. (171 Mass. 67) . . Gann v. N. Y., N. H. & H. 11. R. (171 Mass. 117, 420) Hadley v. Watson (143 Mass. 27) Hall «. Liardet (\V. N. 1883, 175) Haman v. Brennan (170 Mass. 405) ... Hamilton n. Gilraan (12 111. 260) Hamlin v. N. Y., N. H. & R. U. R. Co. (170 Mass. 548, 550) Hancock u. Carlton (6 Gray, 39) ... . . V. Franklin Ins. Co. (107 Mass. 113) . Hansen v. Hansell (44 I.a. 548) ... Hardin v. Boyd (113 U. S. 761) . . Harding v. Riley (181 Mass. 334) . . . Harkrader v. Wadley (172 U. S. 148, 164) .... Harrington v. McCarthy (169 Mass. 492) Hart V. Sansom (110 U. S. 151, 154) . . Haskell i,-. Merrill (179 Mass. 120) Hayes c. Harmony Grove Cemetery (108 M; Haywood v. Leeson et al. (176 Mass. 310) Heard v. Pierce (8 Cush. 345) . . Henderson v. Foster (182 Mass. 447) . . Hendryx v. Fitzpitrick (19 Fed Rep. 810) o. Perkins (114 Fed. Rep. 801) Heyvvood v. Miner (102 Mass. 466) . . Hildreth v. Tliibedeau (185 Mass.) Hills V. Barnard (152 Mass. 67) . . <,. Parker (111 Mass. 508) . . Hobbs V. Stone (5 Allen, 109) . . . Holden v. Holden (24 111. App. 106, 117) «. Hoyt (134 Mass. 181, 185) . . . Page . 9) . 28 . 61 . 147 94, 155 . 73 . 27 , 27, 28 . 71 . 10 , 402) 17, 109 . OS 131 . . 54. 55 . . 76 . . . 64 . . 159 169 5 112 95, 105, 1U7 . 83 83, 114 31, 101, 146 128 . . 82, 87 . 133 . . . 161 98, 150, 164 ... 28 141, 142, 144 . 74, 75, 78 . . . 4 . . . 5 XIV TABLE OF CASES CITED Pvge Hollingsworth & Co. u. Foxboro W. S. Dist. (171 Mass. 450) 105 Hollinsw. BrierfieldC.Co. (150U. S. 371) 18 Holt V. Weld (140 Mass. 578) fi5 Homeru.Barr Pump. E. Co. (180 Mass. 163) . . 31,146 Howarth v. Lombard (175 Mass. 570) 31 Howe «. Russell (-36 Me. 115) 88 Rowland v. Rooke (158 Mass. 590) . . 170 Hubbell w. Currier (10 Allen, 837) 112 Humes o. Scruggs (94 U. S. 22) m Humphrey i-. Baker (103 U. S. 736) 102, 1.34 Hutchinson w. Nay (183 Mass. 355) 81, 8i laaigi v. Chicago B. & Q. R. (129 Mass. 46) .... 167 Idaho & 0. L. Co. u. Bradbury (132 U. S. 516) 93 Ingram v. Little (11 Q. B. I). 251) ... ... 73 Interstate Com. Commission v. Brimson (154 U. S. 489) . 129 Irvine, .Ea;/)arte (74 Fed. Rep. 960) 75 Isham !), Miller (31 N, J. Eq. 61) 64 Jackson v. Stevenson (156 Mass. 496) 124 Jaffray, J^or ;)art« (I Lowell, 321) 167 Jarvis v. Crozier (98 Fed. Rep. 753, 756) 30 Jewett V Tucker (139 Mass. 566) 28 Johnson w. Waterhouse (152 Mass. 585, 586) . . . .35 'J. Waters (111 U. S. 674) 105 Jones V. Arena Pub. Co. (171 Mass. 22) 142 V. Davenport (45 N. J. Eq. 77) 95 t. Grant (10 Paige, 348) . . . . 99 . Goddard (131 N. Y. 494) . . 1-35 National Tel. Man. Co. v. Du Bois (165 Mass. 117, 118) . . 29 Nelson v. Eaton (66 Fed. Rep 376) 69 t). Ferdinand (111 Mass. 300) 47,50 Nevitt, /nre (117Fed. Rep. 448) 133 Newbury u.Blatchford (106 111. 599) .... 42 Newburyport Bank y. Stevenson (7 Allen, 489) .... 49 Newton 17. Thayer (17 Piuk. 129) 55 Newton R. Works v. De Las Casas (182 Mass. 436, 438) 81, 166 N. Y. City V. Pine (185 U. S. 93, 98) . . . . 113 N. Y., N. H. & H., Petrs. (182 Mass. 439) . . .105 Nicliols u. Rogers (139 Mass. 146) . . . . 8, 159 „. Rosenfelil (181 Mass. 525) . . .... . 7, 9 Norwood, Petr. (183 Mass. 151) 80 Nudd y. Powers (136 Mass. 273) 12 Nye y. O.C.R. R. (124 Mass. 241) 169 1^. Storer (168 Mass, 55) . 8 Oakham v. Hall (112 Mass. 539) . . . O'Brien v. Keefe (175 Mass. 276) . . . Ookenholdt v. Frohman (60 III. App. 300) 64 83 123 XVUl TABLE OP CASES CITED O'Day V. Bowker (143 Mass. 59) . O'Hara v. MuConnell (93 U. S. 151) O'Hare v. Downing (130 Mass. 16) Otis V. Oiis (167 Mass. 245) Pacific Nat. Bk. v. Windrara (133 Mass. 175) Pacific U. R. «. Ketclmm (101 U. S. 289) . Paige V. Smitli (99 Mass. 395) . . . Palmer v. Stevens (100 Mass. 461) . . Park Bank v. Goddard (131 N. Y. 494) . Park V. Johnson (7 Allen, 378) . ... Page 30 68 119 112 109 . 102 . 143 21, 22 . . 1.35 104, 166 Parker v. Flagg (127 Mass. 28, 30) ... Nickerson (137 Mass. 487) . „ Parker (42 N. H. 78) . . V. Simpson (180 Mass. 334, 357) . Parks V. Bishop (120 Mass. 340) . . . Parsons v. Lyman (4 Blatchf. 432) . . Patterson v. Miller (4 Jones Eq. 451) Pattison u. Hull (9 Cowen, 747) . . . Peabody v. Flint (6 Allen, 52) . . Pearson ;;. Treadwell (179 Mass. 462) . Pease v. Royal Society (176 Mass. 506) . Pennoyer v. Neff (95 U. S. 714) . People V. Wilson (64 III. 195) People's Nat. Bk. 7;. Marye (191 U. S. 272) . . Perego v. Dodge (163 U. S. 166) Perkins ». Nichols (11 Allen, 542) . . . Pettibone v. Toledo R. R. Co, (148 Mass. 411, 419) Pierce «. Le Monier (172 Mass. 508) . . . Pingree v. Coffin (12 Gray, 288) . Plaisted v. Cooke (181 Mass. 118, 119) Plant V. Woods (176 Mass. 493) . . . Piatt V. Squire (5 Cush. 551) Pond V. Framingham, &c. R.R. (130 Mass. 195) Poor V. Carleton (3 Sumner, 75) . . . Pope B. Leonard (115 Mass. 286) V. Salamanca Oil Co. (115 Mass. 287) Porter v. Kingman (126 Mass. 141) . . . 49, 50, 97, 104, I06 50, 80, 81, 90, 92, 93 .39 . . . 25, 81, 91 89 21 123 85 103 1.51 40 06 132 100 51, 62, 116, 63, 65 17, 110 26,28 . 50 98, 161 125 166 . 137 . 121 24, 49 . 48 141, 144 TABLE OF CASES CITED XIX Page Post!}. Toledo, &c. R. R. (144 Mass. 341) . . . 43 Powers V. Large (75 Wis. 494) 93 V. Raymond (137 Mass. 483) 16, 92 V. Russell (13 Pick. 69) ... . .... 94 Prescott V. Prescott (175 Mass. 64) . . . . 97, 151, 152 Price V. Minot (107 Mass. 49) 24, 25 Patnam v. Grace (161 Mass. 237, 247) 10, 114 Pumey v. Fletcher (148 Mass. 247) 18 Quimby v. Cook (10 Allen, 32) 94 Radford w. Folsom (14 Fed. Rep. 97) Ransom v. Geer (30 N. J. Eq. 249) Redfield «. Gleason (61 Vt. 220) Rennell v. Kimball (5 Allen, 356, 366) . . Reynolds, Admr. w. Burgess Sulphite Co. (71 N. H. 332) Rhode Island w. Mass. (14 Pet. 210) . . Rice tJ.D'Arville (162 Mass. 559) ... „. Hale (5 Cusli. 238) . . V. Stone (1 Allen, o6B) ... u. Winslow (182 Mass. 273, 276) . . . , Richards i: Todd (127 Mass. 167, 170) Richardson v. Clinton W. T. Co. (181 Mass. 580) . . . Riclimond v. Adams Nat. Bk. (152 Mass. 359) . . , Rickerw. Brooks (155 Mass. 400) Ricketson r. Merrill (147 Mass. 81) Riley v. Hampshire Co. N. Bk. (164 Mass. 482) . Ripley v. Collins (162 Mass. 450) . Robbins v. Brockton St. Ry. (180 Mass. 51) . Roberts v. Barker (63 N. H. 332) . Robinson, £a; parte (19 Wall. 505) . . V. Brown (182 Mass. 266) o: Guild (12 Met. 323) a. Smitli (3 Paige Ch. (N. Y.) 222) . . Rogers v. Patterson (4 Paige, 450) . . . . Roosa V. Davis (175 Mass. 117) . . ... Roper V. Upton (125 Mass. 258) ... ... 57 31 99 84 44 . 53 120 148 109 5 41 12, 138 30 49 109 101 94 71, 72 81 128 155 50 22 132 115 120 XX TABLE OF CASES CITED Ross V. N. E. Ins. Co. (120 Mass. 117) Rowe V. Teed (15 Ves. 377) ... Rowland v. Maddock (183 Mass. 360) . Russell v. Burke (180 Mass. 543) . V. Lathrop (117 Mass. 424; 122 Mass. 0. Loring (.3 Allen, 125) <.. Milton (133 Mass. 180) .... 27, 300) Page . 92 , . 53 . IGO 105, 106, 107, 145 67, 97 . 52 . . 110 Salisbury Mills v. Townsend (109 Mass. 115) Saltus V. Tobias (7 Johns. Ch. 215) . . . Sandford v. Wright (164 Mass. 85) . . Saunders U.Frost (5 Pick. 271) .... Savage I'. Blanchard (143 Mass. 348) . . Sawyer v. Davis (136 Mass. 239) . Sawyer, In re (124 U. S. 200) Schlesinger v. Sherman (127 Mass. 206, 208) School District v. Weston (31 Mich. 85) Schwoerer v. Boylston Market Ass'n (99 Mass. Scofield V. Peck (182 Mass. 123) .... Sears «. Hardy (120 Mass. 524) .... Secombe v. Campbell (18 Blateh. 108) . Sewall V. Sewall (130 Mass. 201) . Shapira y. D'Arcy (180 Mass. 377) . . . Shaw V. Coster (35 Am. Decis'ns) .... Sherman v. Am. Stove Co. (85 Mich. 169) Silloway v. Columbia Ins. Co. (8 Gray, 199) Silva V. Turner (166 Mass. 407) Skehill V. Abbott (184 Mass. 145) . Slater v. Banwell (50 Fed. Rep. 150) V. Maxwell (6 Wall. 268) . . . Smith V. Bank of N. E. (69 N. H. 254) a. Butler (176 Mass 38) . . V. Clay (3 Brown Ch. 6.39) . . V. M'lver (9 Wheat. 532) ... U.Smith (148 Mass. 1) . . . V. Williams (116 Mass. 510, 512) Smith V. Woolfolk ( 1 15 U. S. 143) . . . Snow V. Boston Blank Book Co. (153 Mass 285) 102, 1 . 38 . 53 1, 15, 57 105 . 169 .. 163 13, 130 15, 110 . 38 . 22 . 97 . 24 . 56 167 91 40 25 lO:) 81 89 54, 166 i6) . 61 28 160 11, 104 4 27, 118 20, 2d 99 52,60 n . 06 141 90 . 109 113, 124 TABLE OP CASES CITED XXI Page Snowman v. Harford (57 Me. 307) . . . . 115, 132 Snyder v. Smith (185 Mass. 58) . 127 Society v. Watson (3 A. & E. Dec. Eq, 29) . 101 Solinsky 0. Lincoln (85 Tenn. 372) . . . 112 Soper V. Manning 1 147 Mass. 126) ... . 28 Spedding v. Fitzpatriclc (38 Cli. Div. 410,414) Springer v. Walters (139 111. 419) . 119 Springfield «. Springfield St. Ry. (182 Mass. 44) .... 124 Spurr (,■. Coville (3 Cusli. 578) Squire v. Hewlett (141 Mass. 597) V. Lincoln (137 Mass. 397) . . . V. Tellier (185 Mass. 18) . . Starkie v. Richmond (155 Mass. 188, 195) State V. Mathews (37 N. H. 450) . . . ... 129 Stevens v. Hayden (129 Mass. 328, 332) . 7 o. Mulligan (167 Mass. 84) . . . . 119 u. Warren (101 Mass. 564) . . .39 Stevenson v. Austin (3 Met. 474) . . . . 21, 28 St. Louis R. Co. V. Johnson (133 U. S. 577) . . 7 V. Wilson (114 U. S, 60) . 2.5 Stokes V. Farnsworth (99 Fed. Rep. 8.36) . 51 Stone V. Locke (48 Me. 425) . . 97, 165 V. Reed (152 Mass. 179) . . 96 Storey i'. Lennox (1 Keen, 357) . 78 Story, £a;;)arte (12 Peters, 343) . . . . 151 Stratton v. Hernon (154 Mass. 310) ... 2 !). Physio. Med, CoU. (149 Mass. 505) . . 167 Sullivan v. Judali (4 Paige, 446) . . 122 Sylvester v. Boyd (166 Mass. 445) . . . . 49 Taft V. Stoddard (141 Mass. 150) . . 150 ... Stow (174 Mass. 171) . ... 170 Taintori). Cole (120 Mass. 165) ; . . . ... 113 Tansey v. McDonnell (142 Mass. 220) . . .41, 57, 65 Taunton v. Taylor (116 Mass. 254) . , 3, 63 Taylor v. Lovering (171 Mass. 303) . . 35, 168 I,. Taylor (74 Me. 582) 3,112 Tenney's Case (23 N. H. 162) . . .128 XX u TABLE OF CASES CITED Third Nat. Bk. u. Skillings L. Co. (132 Mass. 410, Thomas v. Beals (154 Mass. 51) ... Thompson the jurisdiction of a court of equity on the ground that there is a remedy at law, it must appear that no substantial and essential part of the case is within the appropriate jurisdiction of that court. For if any part of the case is within such appro- and received for the plaiutifE's use ; for in cases of fraud the court of equity has a concurrent jurisdiction with the com- mon law, matters of fraud being the subject of relief here. Accordingly cases of this nature have frequently met with relief in this couct." 4 PLEADINGS AND PRACTICE IN EQUITY priate jurisdiction of a court of equity, that court, having taken cognizance of the case for such part, will retain it and determine the whole case. Worthington v. Waring, 157 Mass. 429; Bartlett V. Parks, 1 Gush. 82;^ 1 Pomeroy's Equity Juris- prudence, 2d ed., § 223. "Speaking generally, jurisdiction in equity is fixed if the plaintiff* is entitled to relief at the time of the bringing of the bill; and the court will retain the bill and administer a remedy in damages, if that is appropriate, where the plain- tiff loses his right pendente lite to purely equi- table relief without fault on his part through some action on the part of the defendant. " Lexington Print Works v. Canton, 171 Mass. 416. And in cases which are within the jurisdiction of either court — law or equity — the ordinary rule is "that the court which first acquires jurisdiction must decide the case." Nash v. McCathern, 183 Mass. 345, 347 ; Smith v. M'lver, 9 Wheat. .532. ' " When equity has jurisdiction for one purpose, it will go on and do complete justice between the parties, and will not send them to a court of law because part of the relief may be purely legal relief." Holden v. Holden, 24 111. App. 117. The court whose process is first served obtains juris- diction of all questions which flow out of the subject-matter. U. Mut. L. Ins. Co. v. Univer. of Chicago, 6 Fed. Rep. 443. For the reason why the words " when the parties have not a plain, adequate, and complete remedy at the common law," in § 2, c. 150, Pub. Stats, do not appear in the Revised Laws, see Report of the Commissioners for Consolidating the Public Statutes (1901), p. 1364, note 3. THE BILL O t And this is true also of the federal courts and the State courts ; so that, " when either has taken jurisdiction of a res, it is as much withdrawn from the other as if it had been carried physically into the other territorial sovereignty." Covell v. Hey- man, 111 U. S. 176 ; Harkrader v. Wadley, 172 U. S. 164; Gregory v. Merchants' Nat. Bank, 171 Mass. 67. And the remedy at law which precludes relief in equity must be "as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." Holden v. Hoyt, 134 Mass. 185; Rke v. Winslow, 182 Mass. 273.1 Jurisdiction in equity attaches unless the legal remedy both in respect to the final relief and the mode of obtaining it are as efficient as the remedy which equity would confer under the same cir- 1 Criticisms of the Massachusetts rule, which allows a defendant to waive an objection which he might make to jurisdiction in equity, are logical enough if based upon the assumption that parties cannot confer jurisdiction upon a court which the law does not give ; but such assumption begs the question. The rule, as to practical results, is sat- isfactory. It allows parties to extend the beneficent rules of equity to causes which could not otherwise be done. And the disposition is to extend thera still further, as shown in allowing equitable defences and interpleaders in actions at law. Section 11 of the Supreme Court of Judicature Act of England provides that, " Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules in equity and the rules of the common law with reference to the same matter, the rules in equity shall prevail." b PLEADINGS AND PRACTICE IN EQUITY cumstances. Kilbourn v. Sunderland, 130 U. S. 614. "The forbearance which courts of co-ordinate jurisdiction, administered under a single system, exercise towards each other, whereby conflicts are avoided, is a principle of comity, with perhaps no higher sanction than the utility which comes from concord ; but between State courts and those of the United States it is something more. It is a principle of right and of law, and therefore of necessity. It leaves nothing to discretion or mere convenience." Covell v. Heyman, 111 U. S. 182; Burgess v. Seligman, 107 U, S. 20. After all, it has to be said, that not as much as formerly depends upon whether in any case in the first instance, a remedy is sought in an action at law, or relief in a suit in .equity, since to save de- feat one may be amended into the other. R. L., c. 159, § 6. But this is not always easily done, and usually results in embarrassment, delay, and costs. A federal court will not enjoin proceedings in a State court, "except in cases where such in- junction may be authorized by any law relating to proceedings in bankruptcy. " U. S. Rev. Stats., § 720. See In re Watts and Sachs, Petitioners, 190 U. S. 1. Suits in equity may be brought in any county in which a transitory action between the same parties might be brought. R. L., c. 159, § 5. Dary, Admr. v. Kane, 158 Mass. 376. THE BILL 7 The Stating Part of the Bill. "The material facts and circumstances which are relied on by the plaintiff shall be stated with brevity, and immaterial and irrelevant matters shall be omitted." R. L., c. 159, § 12. No necessary allegation can be supplied by in- ference. If the stating part of the bill shows no ground for relief, it cannot be enlarged by the terms of the prayer. Bushnell v. Avery, 121 Mass. 148. " The stating part of the bill must contain the plaintiff's case and his title to relief; and every necessary fact must be distinctly and expressly averred, and not in a loose and indeterminate manner, to be explained by inference or by refer- ence to other parts of the bill. " Stevens v. Hayden, 129 Mass. 322; Qlark v. Lee, 185 Mass. 223. And the pleader should ever bear in mind, that the strength of a statement is more in the clear and positive than in the superlative or rhetorical style of it. In stating a case of fraud, it is necessary to state the facts, acts, and conduct on which the fraud is predicated. Nichols v. Rosenfeld, 181 Mass. 525; Merrill v. Washburn, 83 Me. 189; St. Louis Ry. Co. v. Johnston, 133 U. S. 577. "The words 'traud' and 'conspiracy' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of 8 PLEADINGS AND PRACTICE IN EQUITY equity. Until connected with some specific acts, for which one person is in law responsible to another, they have no more effect than other words of unpleasant signification." Ambler v. Ohoteau, 107 U. S. 586 ; ^ An allegation of con- spiracy may be a proper mode of alleging a joint action ; but for any other purpose it is wholly im- material." May\. Wood, 172 Mass. 11. General charges of fraud, misconduct, breaches of trust, &c., are not sufficient allegations of facts, but are merely only conclusions which are not ad- mitted by demurrer. Garst v. Sail ^ Lyon Co., 179 Mass. 590; Fogg v. Blair, 139 U. S. 118; Nichols V. Rogers, 139 Mass. 146; Nye v. Storer, 168 Mass. 55. Of certain allegations. Holmes, C. J., said, "They are a discrediting summary of a general state of mind, but do not allege the necessary specific intent." " The averment in a bill that the defendant had no right to do certain things, and that they are beyond the corporate powers, are statements of conclusions of law, and they go for nothing unless the conclusions follow from the facts stated." Messer \. Grand Lodge, ^c, 180 Mass. 323. "In this court in equity, a charge of fraud is regarded as something more serious than a rhe- ^ "Epithets do not make out fraud." Fuller, C. J., in Kent V. Lake Sup. Canal Co., 144 U. S. 91. THE BILL y torical embellishment, and if a man puts his case on that ground, he must maintain it on that ground or lose it." Holmes, C. J., in Nichols v. Bosenfeld, 181 Mass. 526. " The bill should state fully and explicitly the circumstances, so as to present a clear picture of the particulars, — of how the fraud was committed, how the plaintiff was misled, or of the character and causes of the accident or mistake, and how it occurred. " Merrill v. Washburn, 83 Me. 189. ^ The bill may be drawn with a double aspect, so that if the plaintiff fails on one ground, he may rely upon another, but a bill so drawn must be consistent with itself. Gerrish v. Towne, 3 Gray, 86. But a plaintiff may be excused from stating with proper details and particularities his claim, if it is alleged, and it appears, that the documents and papers containing the evidence of such details are in the hands of the defendant, who refuses to permit the plaintiff to examine them. Towle v. Pierce, 12 Met. 329. A bill to compel specific performance of an agreement to convey land need not allege that the agreement is in writing ; though if it appears 1 "The old system of pleading at common law was to conceal as much as possible what was goifig to be proved at the trial ; but under the present system it is our duty to see that a party so states his case that his opponent will not be taken by surprise." Spedding v. Fitzpatrick, 38 Ch. Div 410, 414. 10 PLEADINGS AND PRACTICE IN EQUITY that it is not, it will be demurrable. Putnam v. Qraee, 161 Mass. 237. An allegation that the plaintiff "is informed" or "believes," or "is informed and believes," that a fact exists, is not a sufficient allegation that the fact does exist. ^ But an allegation that the plaintiff "is informed and believes," and therefore avers the existence of the fact, may be sufficient. Story's Eq. PL, § 241, note; Fletch- er's Eq. PI. & Pr. 135 ; Messer v. Storer, 79 Me. 512. The existence of the plaintiff's title in the property which is the subject-matter of the suit, should be stated positively, and not upon informa- tion and belief; because he is supposed to know the facts as to his own title. Story's Eq. PI., § 255. The bill must show: 1. That the plaintiff has a present existing interest in the subject-matter of the suit.^ 2. That he is entitled to relief upon the facts. 3. That the defendant is the party of whom such relief can, at that time, be had. 1 A common law rule . . . which requires a petition to be " verified by affidavit," is not complied with by a jurat that it is true according to the best of the affiant's "knowl- edge, information, and belief." Hadley v. Watson, 143 Mass. 27. 2 This interest must be a vested interest though the enjoy- lueut of it is remote and coutiugeut. Daniell Ch. PL & Pr., §317. THE BILL 11 In a bill to reach and apply, brought under cl. 7, s. 3, c. 159, R. L., it is necessary to set out the cause of action — the plaintiff's claim — as specifically as is required in a declaration at law. Sandford v. Wright, 164 Mass. 85. In an equital)le attachment of a debt due to the defendant, the bill should contain a description of the debt and the name of the party who owes it. Amy V. Manning, 149 Mass. 487. A bill to collect a stale demand should state specifically the reasons and facts why the suit was not begun before. Le Gendre v. Byrne», 44 N. J. Eq. 372; Mackallv. Oasilear, 137 U. S. 556.1 For the allegations necessary in a bill in equity by stockholders against officers of a corporation for fraud, misconduct, &c., see Thompson's Cases on Eq. PI. 213. " The bill must show that suit- able redress is not attainable through the cor- poration." Brewer v. Boston Theatre, 104 Mass. 1 "A court of equity, which is never active. in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights, and acquiesced for a great length of time — nothing can call forth this court into activity, but conscience, good faith, and seasonable diligence." Lord Caraden in Smith u. Clay, 3 Brown, Ch. 639. In Willard v. Wood, 1R4 U. S. 524, the court said, "the recognized doctrine of courts of equity to withhold relief from those who liave delayed the assertion of their claims for an unreasonable length of time, may be applied in the discretion of the court even though the laches are not pleaded, or the bill demurred to." 12 PLEADINGS AND PRACTICE IN EQUITY 378; Blair v. Telegram Newspaper Co., 172 Mass. 201; D>mphy\. Traveller N. Assn., 146 Mass. 495; Richardson v. 0. W. T. Co., 181 Mass. 580. It is not enough to enable a stockholder to bring a bill to enforce in behalf of a corporation the rights which if successful will enure to the corporation, to make a naked request that such a bill should be brought without submitting to the directors the facts on which it could be brought. Doherty v. Mercantile Trust Co., 184 Mass. 590; see Wineburgh v. U. S. Steam Co., 173 Mass. 60. If a bill is brought by a few in behalf of them- selves and others it should so state. Story's Eq. PI., § 126. It is not now necessary that the bill contain any prayer for an answer or for general relief, or for process. R. L., c. 159, § 12. "The bill is to be interpreted as though it con- tained a prayer for relief." Hammond, J., in Allen V. French, 180 Mass. 489. A bill should not be dismissed simply because the form of relief prayed for cannot be given, if it appears that some equitable relief can and should be given. Nudd v. Powers, 136 Mass. 273. But it is not probable that an injunction would be granted in any bill until after hearing on the merits — unless specifically prayed for ; though after such hearing it may be. Thompson v. Heywood, 129 Mass. 401. THE BILL 13 Excepting in cases where a power has been ex- pressly conferred on the court of equity for some specific purpose, it has to do only with property or property rights. "A chancellor has no criminal jurisdiction." " It is well known that equity has, in general, no jurisdiction to restrain the commission of crimes, or to assess damages for torts already committed. Courts of equity often protect prop- erty from threatened injury when the rights of property are equitable, or when, although the rights are legal, the civil and criminal remedies at common law are not adequate. " Field, C. J. , in Worthington v. Waring, 157 Mass. 423. "The office and jurisdiction of a court of equity — unless enlarged by express statute — are limited to the protection of the rights of prop- erty. It has no jurisdiction over the prosecution, the punishment, or the pardon of crimes or mis- demeanors, or over the appointment or removal of public officers." In re Sawyer, 124 U. S. 200. Yet the fact that a threatened act or proceed- ing will, if carried into execution, be a crime, and punishable by other tribunals, is not sufficient reason why a court of equity should decline to enjoin such act or proceeding, if the property interests of private persons will be put in jeop- ardy of serious injury. In re Dehs, Petitioner, 158 TJ. S. 564, and cases cited. "The fact that maintaining a nuisance is a 14 PLEADINGS AND PRACTICE IN EQUITY crime does not deprive a court of equity of the power to abate the nuisance. " Carleton v. Rugg, 149 Mass. 554.1 " So it is not within the general powers of a court of equity to supervise the conduct of pub- lic officers in the performance of their official duties, or to prohibit them from acting or to compel them to act in matters which pertain to political and personal rights as distinguished from rights of property." Larcom v. Olin, 160 Mass. 110. But "the right to proceed in equity to abate public nuisances, and to destroy private property, in the exercise of the police power, when neces- sary for the protection of the public, has been recognized in many cases." Carleton v. Rugg, 149 Mass. 555. Formerly the court in equity, in Massachusetts, would not entertain a suit involving property or property rights of less value than one hundred dollars. Cummings v. Barrett, 10 Cush. 186. But property (for example, a silver cup) may have a value apart from the money ($60) which it cost. Wilkinson v. Stitt, 175 Mass. 581. But suits by creditors, " to reach and apply " 1 The jurisdiction in equity to restrain nuisances "is not on the ground of any criminal offence committed, or for the purpose of giving a better remedy in the case of a criminal offence . . . but is on the ground of injury to property." Atty.-Genl. v. Sheffield, &c., 3 D. M. & G. 320. THE BILL 15 under cl. 7, § 3, c. 159, R. L., in payment of a debt, may be maintained, "althongh the amount of a debt is less tlian one hundred dollars. " R L., c. 159, § 3, cl. 7. Whether such suit can be maintained now if the debt is less than twenty dollars — quaere. Gale V. Nickerson, 151 Mass. 428; Sandford v. Wright, 164 Mass. 85. See remarks of Gray, C. J., in Chapman v. Banker ^ Tr. Pub. Co., 128 Mass. 478. It is not the practice to entertain a bill, to reach and apply under cl. 7, to collect a debt of less than fifty dollars. Suits to reach and apply under cl. 7, § 3, of c. 159, R. L., are not cases within the general principles of equity jurisprudence. Wilson v. Martin-Wilson, 151 Mass. 517. The equitable jurisdiction conferred by this cl. 7, "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," and this jurisdiction in equity "is limited by the statute to such property or rights as can neither be attached or taken on execution at law. " Sehlesinger v. Sherman, 127 Mass. 206. What claims are included and what are not included in the term "debt" has not yet been determined. Claims besides judgments are in- 16 PLEADINGS AND PBACTrCE IN EQUITY eluded ; on the other hand, it is understood that " debts " due to creditors does not include dam- ages for torts, or probably unliquidated damages for breaches of contracts other than the agree- ment "to pay a certain sum, on the performance by the plaintiff of a certain act." Draper v. Soil- ings, 163 Mass. 127; Bennetts. Sweet, 171 Mass. 600. In Moore v. Mansfield, 182 Mass. 302, it is intimated that an unascertained amount for use and occupation is not such a "debt." Mason, C. J., of the Superior Court, ruled that it is not.^ Bills under el. 7, § 3, c. 159, R. L., are really common law cases, with the flexible orders of courts of equity to reach rights and interests in property which cannot be levied on and sold by a common law execution ; which orders the court in equity may enforce by injunction. So that, in Powers V. Raymond, 137 Mass. 483, it was held that the defendant had the right to have a trial by jury of the main question of his alleged indebted- ness to the plaintiff. Merchants' Nat. Bank v. Moulton, 143 Mass. 543. Nor are bills under this cl. 7 "creditors' bills," in the sense of those words in ordinary prac- tice in courts of equity. "Such a bill is in the 1 Jurisdiction of a federal court to reach property fraudulently conveyed must be based on a judgment, not- withstanding a State statute authorizing such suit without judgment. HoUins v. Brierfield C. Co., 150 U. S. 371; Gates V. Allen, 149 U. S. 451. THE BILL 17 nature of an equitable attachment brought by a single creditor for his own benefit, in which other creditors cannot be admitted to join as plaintiffs, or share in the benefits of the decree. " Chapman v. Banker ^ Tr. Co., 128 Mass. 478; Pettihone v. Toledo R. R. Co., 148 Mass. 411. The power in equity to reach " property rights or interests " is limited to property rights or in- terests which "cannot be come at to be attached or taken on execution," and is also limited to such legal " causes " for the suit as can be begun by trustee process, enumerated in R. L., c. 189, § 1, and also it does not extend to property, which, under R. L., c. 163, § 95, is "not subject to attachment by trustee process or otherwise." Venable v. Rickenherg, 152 Mass. 64. But see: Haman v. Brennan, 170 Mass. 405. Whatever the property or interest is, which the creditor seeks to have attached and applied, &c., it should be specifically described. Amy \. Man- ning, 149 Mass. 487. A suit under cl. 8, § 3, c. 159, R. L., to reach and apply in payment of a debt any property right or interest "fraudulently conveyed by the debtor, with intent to defeat, delay, or defraud his credi- tors," must, after the decease of the fraudulent grantor, be brought by the administrator of such grantor and not by the creditor; and if such administrator refuses to do so after an offer of indemnity, he should be removed and another i 18 PLEADINGS AND PRACTICE IN EQUITY appointed in his place. Putney v. Fletcher, 148 Mass. 247. The reason for this being that the es- tates of deceased persons should be administered, "under the direction and supervision of the Pro- bate Court." For recent cases showing what property rights or interest may be reached and applied under cl. 7, § 3, c. 159, see under Decrees, p. 108. In every bill, the names of the parties, their residences, and tlie capacity in which they sue, or are sued, should be stated accurately. It would be found useful to state at the outset the object of the bill.^ The words " and the plaintiffs say " need not be used. The statement is more direct and stronger without them. The paragraphs of the bill (and the answer also) should be numbered. This is required by Equity Rule 4 of the Supreme Court of Maine, and by the rules of the Supreme Court of Judicature of England. Suits in equity "may be brought in any county in which a transitory action between the same parties might be brought, as well as in counties in which it is elsewhere provided that such suits may be brought." R. L., c. 159, § 16; Bary v. Kane, 158 Mass. 376. See note on p. 94. 1 That is, after the names of the parties, state whether it is a bill to redeem — to dissolve a co-partnership — for specific performance — to reach and apply, etc. THE PARTIES 19 THE PARTIES One of the chief and important differences be- tween actions at law and suits in equity is in the matter of. parties. In actions at law only the immediate parties to the dispute can be parties. In suits in equity as many of the parties — if not all — as are interested in the subject-matter as possible should be made parties. "The general rule is that all parties interested in the subject-matter of a suit in equity, whether directly and immediately, or incidentally and re- motely, are to be made parties, so that complete justice may be done between all parties interested, in one suit. This is an important rule, as it avoids multiplicity of actions, and enables the court to do justice between persons having conflicting inter- ests, and to avoid the injurious consequences that might follow from the decision of a cause, grounded on a partial consideration of its real merits." Ormse et al. v. Bahcock, 10 Met. 525 (1846). Gray, C. J., thirty years later, referring to this rule said : " This general rule is subject to some modifications, at the discretion of the court, from considerations of convenience, as, for instance, when a great number of persons is interested, or 20 PLEADINGS AND PRACTICE IN EQUITY ■vvlien some of them are beyond the reach of the process of the court, and the case can be deter- mined without affecting their rights, and consist- ently with equity and good conscience." Cassidy V. Shimmin, 122 Mass. 406. " That all parties interested in the subject-matter of the suit should be made plaintiffs or defendants is too broad a statement. It would be more accu- rate to say that all parties interested in the object of the suit must be made parties." Thomas, J., in Michigan S. Bank v. G-ardner, 3 Gray, 305. In Cockhurn v. Thompson, 16 Yes. 329, the rule is stated as follows : " Tliis rule that all who are interested should be made parties, being a rule of propriety and convenience, established by the court, the court should not allow it to become an instru- ment of denial of justice to parties before the court, who are entitled to relief." " How far such persons (interested in the subject- matter of the suit) should be made parties to the suit, depends largely upon the discretion of the court,. — considering on the one hand the difficulty and expense of joining them, and on the other the paramount importance of having such a representa- tion of the interests concerned as may enable the question at issue to be fully tried." Smith v. Williams, 116 Mass. 610. But if there is any person who has such an inter- est that he ought to be made a party, and is not a party, the reason why he is not should be stated THE PARTIES 21 in the bill. Palmer v. Stevens, 100 Mass. 461. Wilkinson v. Stitt, 175 Mass. 581.i And when he is not within the jnrisdiction or reach of the court, tiie bill should so state. Towle V. Pierce, 12 Met. 829. There are cases where a decree can be entered which will affect the interests of those who are not parties to the bill. That is where a suit is brought by some in behalf of, or against, a large number of others, whose interests the court can see are iden- tical with those named in the bill. Stevenson v. Austin, 3 Met. 474 ; Davis v. Peabody, 170 Mass. 897 ; Libby v. Norris, 142 Mass. 246 ; Crowell v. Cape Cod Ship Canal Co., 164 Mass. 235. And if parties who ought to join as plaintiffs in a bill refuse to do so, they may be made defend- ants ; their refusal to be plaintiffs being stated in the bill. 1 Daniell's Ch. PL & Pr., 190, note; Birmingham v. Gallagher et als., 112 Mass. 190 ; Billings v. Mann, 156 Mass. 203. And parties having conflicting interests should not be made plaintiffs. Parsons v. Lyman, 4 Blatchford, 432. And where a plaintiff who is a necessary party refuses to go on, and moves to dis- miss the cause as to him, the court would, on motion of other plaintiffs, " transpose" him to the 1 A suit in equity cannot be maintained by one, or in the name of one, for the sole benefit of another. Kellam v. Sayre, 30 West Va. 198. Crooker v. Rogers, 58 Me. 339. 22 PLEADINGS AND PRACTICE IN EQUITY other side. Mc Conaughey v. Bennett's Executors, 50 W. Va. 172. "Equity does not particularly concern itself with determining that such a person shall be plain- tiff, and such another a defendant, but rather requires in a more general form that the persons shall be parties, so as to be bound by the decree, and is in general satisfied if they are thus brought before the court either as plaintiffs or defendants." Pomeroy's Rem. & Remedial Rights, 2d ed., § 248. Where the unexplained absence of a necessary party appears on the face of the bill, the objection to it should be made by demurrer. Palmer v. Stevens, 100 Mass. 461. But if that is not done, the objection may be made by plea or answer, or the court may decline to proceed with the parties before it. Sehwoerer v. Boylston Market Assn., 99 Mass. 285 ; Robinson v. Smith, 3 Paige Ch. (N. Y.) 222. To what extent a decree may bind parties not before the court. See Beach, Mod. Eq. Pr., § 66. The 47th Rule in Equity of the Supreme Court of the United States is : " In all cases where it shall appear to the court that persons, who might otherwise be deemed necessary or proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or in- capable otherwise of being made parties, or because their joinder would oust the jurisdiction of the THE PARTIES 23 court as to the parties before the court, the court may in their discretion proceed in the cause, with- out making such persons parties ; and in such cases the decree shall be without prejudice to the rights of the absent parties." The Supreme Court of the United States has con- sidered parties in suits in equity as divisible into three classes : First, formal parties, who have no interest in the controversy, though they may have indirectly in the subject-matter ; second, necessary parties, who, though having an interest in the controversy, have interests so separable from those before the court that a decree may be entered without injuriously affecting their interests ; third, indispensable parties, who have such inter- ests in the controversy that a final decree cannot be made without affecting their interest. Minne- sota V. Northern Securities Co., 184 U. S. 199. As a rule partners, joint owners, tenants in common, and all others who have a community of interest in the subject-matter of the suit, should be made parties to it. Mai/ v. Parker, 12 Pick. 34. As a rule, suits by or against partners all must be parties to the suit as plaintiffs or defendants. Fowle V. Torrei/, 131 Mass. 289. But in a suit brought by one of four partners against one only of the other three for an account, &c., where it was alleged that the other two were not within the jurisdiction of the court ; that all the others had received their full share of the 24 PLEADINGS AND PRACTICE IN EQUITY partnership effects; and that the defendant had received much more than his share and the plain- tiff less ; a demurrer to the bill for nonjoinder of the other partners as defendants, was overruled. Towle V. Pierce, 12 Met. 329. An exception to the general rule seems to exist now in R. L., ch. 73, § 85, which provides that — "Joint payees or joint indorsees — of a negotiable instrument — who indorse, are deemed to indorse jointly and severally." In suits respecting trusts and trust property, brought by or against the trustee, the cestui que trusts are necessary parties if the suit affects the relations of tlie cestui que trust with the trustee. Sears v. Hardy, 120 Mass. 524. But where the suit is brought by a stranger to set aside the trust deed or instrument as fraudulent and void, on the ground of a title of the plaintiff which antedates the creation of the trust, or where the suit is by the trustee to recover the trust property, it is enough that the holders of the legal estate in the property are parties without joining the cestui que trusts. Vetterlein v. Barnes, 124 U. S. 169 ; Ashton v. Atlantic Bank, 3 Allen, 217. In suits against officers of a corporation, the cor- poration should be a party. Price v. Minot, 107 Mass. 49 ; Pope v. Leonard, 115 Mass. 286 ; Allen V. Turner, 11 Gray, 436 ; Lyman v. Bonney, 101 Mass. 562; Elkins v. Camden Ry. Co., 36 N. J. Eq. 241; Beerfield v. Mms, 110 Mass. 115. THE PARTIES 25 The corporation is a necessary party to a bill by a creditor of the corporation against its officers or stockholders, who have divided the assets among themselves. Deerfield v. Nims, 110 Mass. 115. Or to a bill involving a question of ultra vires. Price V. Minot, 107 Mass. 49. Or to any bill which affects its corporate rights or liabilities. St. Louis ^ S. F. Ry. Qo. v. Wilson, 114 U. S. 60. A town must be a party to a bill against the treasurer for paying out money on a vote to pay it out for illegal purposes. Allen v. Turner, 11 Gray, 436. But in Attorney- Creneral v. Williams, 178 Mass. 330, it was held that the city of Boston was not a necessary or proper party to the suit, to remove a portion of " The Westminster " building, though the city was liable to the defendants — the owners — for such damages as they might sustain by such removal. In a bill to set aside a conveyance to a fraudulent grantee, a hona fide mortgagee of such grantee is a proper party. Whittemore v. Cowell, 7 Allen, 446. Parties w^ho are interested in different kinds of property, real and personal, who have been de- frauded by one general scheme of fraud may join as plaintiffs in a bill to recover their interests. Parker v. Simpson, 180 Mass. 334 ; Sherman v. Am. Stove Co., 85 Mich. 169. As to the proper parties in a bill to redeem 26 PLEADINGS AND PRACTICE IN EQUITY from mortgage, see R. L., ch. 187, § 18. JEmerson V. Atkinson, 169 Mass. 356 ; Pierce v. LeMonier, 172 Mass. 508 ; Lamh v. Montague, 112 Mass. 352 ; Ashburner, Prin. of Equity, p. 282 (1902). A mortgagee of an estate on which there is a party wall should be made a party in a suit seek- ing the removal of such wall. Everett v. Hdwards, 149 Mass. 588. A mesne assignee of a mortgage, who has parted with his interest by assignment of the mortgage, is not a necessary party to a bill to redeem, if he has received no rents or profits. Lennon v. Porter, 2 Gray, 473. But when the mortgagor had worked for the mortgagee who had agreed to apply his wages in payment of the mortgage debt, but had not done so, the mortgagee, though he had assigned the mortgage, was a proper party defendant. Doody V. Pierce, 9 Allen, 141. A promisee named in a written contract, who has transferred it orally but unconditionally, need not be made a party in a suit to enforce it; there being no right or liability in him which can be affect- ed by the decree. Currier v. Howard, 14 Gray, 511. In a bill brought by a vendee for specific perform- ance of an agreement made by a deceased vendor, the defendant, by statute, may be the executor or administrator of the vendor. R. L., ch. 148, § 1 ; LyneH v. Hay den, 119 Mass. 482. A husband may — but it is not necessary that THE PARTIES 27 he should — join his wife in a suit in equity relating to her separate property. Forbes v. Tuck- erman, 115 Mass. 115. The administrator is the proper party to bring a bill to recover personal property conveyed by the deceased to defraud his estate, widow, or heirs, and '' if the administrator proves to be unsuitable for that purpose, he may be removed and another appointed in his place." Flynn v. Flynn, 183 Mass. 365. A bill may be maintained by a wife against her husband to recover her property obtained from her by his fraud and coercion. Frankel v. Frankel, 173 Mass. 214. In a bill to establish a trust in a bank deposit the depositor is a necessary party. G-regory v. Bank, 171 Mass. 67. In a bill to reach and apply the equitable inter- est of the debtor in laud, it is not now necessary to join, as parties, trustees in whom the legal title stands. Russell v. Biirke, 180 Mass. 543. See Whittemore v. Cowell, 7 Allen, 446. The owners of different estates or interests in a passage-way may join in a bill to prevent a nuisance or injury to their rights in it. Oadigan V. Brown, 120 Mass. 493 ; Greene v. Canny, 137 Mass. 64 ; Ballou v. Hopkinton, 4 Gray, 328 ; Smith V. Smith, 148 Mass. 1. Numerous parties having similar claims upon a fund may join — or may be required to join, in 28 PLEADINGS AND PRACTICE IN EQUITY a suit for the recovery of their claims in order to prevent multiplicity of actions, delay, and costs. Smith V. Bank of New England, 69 N. H. 254. The numerous cases on the matter of parties in suits in equity in this State show that the court has liberally exercised its discretion under the rule stated in Smith v. Williams, 116 Mass. 610. Steven- son et als. V. Austin, 3 Met. 474 ; Lihby v. Norris, 142 Mass. 246 ; Jewett v. Tucker,12,'d Mass. 566. The following are among other recent cases in equity in which it was held that all the neces- sary parties were named in the bill : Libhy v. Norris, 142 Mass. 246 ; Birmingham v. Gallagher, 112 Mass. 190 ; Soper v. Manning, 147 Mass. 126 ; McFadden v. Murphy, 149 Mass. 341; Hills v. Barnard, 152 Mass. 67. In the following cases it was held that all the necessary parties were not named in the bill ; Davis V. Pea6o(f«/, 170 Mass. 397; Smith v. Williams, 116 Mass. 610 ; Gordon v. Green, 113 Mass. 259 ; Everett v. Edwards, 149 Mass. 688 ; Cassidy v. Shimmin, 122 Mass. 406 ; Fowle v. Torrey, 131 Mass. 289 ; Gregory v. Mer. Nat. Bank, 171 Mass. 67 ; Pierce v. LeMonier, 172 Mass. 508.1 ^ In Faulkner v. Waraeset Power Co., 158 Mass. 435, the court allowed amendments, among which was to allow the "bringing in of all persons or corporations interested in the decision of the question." PARTIES PLAINTIFFS 29 PARTIES PLAINTIFFS " The general rule that all persons of whatever rank or condition, and whether they have a natural or only a political character, are capable of institu- ting suits in equity, is subject to a very few excep- tions, and extends from tlie highest person in the State to the most distressed pauper." Beach, Mod. Eq. Pr., § 40. It includes foreign corporations, by comity, National Tel. M. Co. v. DuBois, 165 Mass. 117 ; sovereigns, King v. Kuepper, 22 Mo. 550 ; and aliens, excepting those of a nation at war with the United States, Kershaw v. Kelsey, 100 Mass. 561. Infants, idiots, and lunatics, in equity as in law, may sue by guardian, guardian ad litem, or next friend. R. L., c. 145, § 23, and c. 147, § 17. See Cunningham v. Davis, 175 Mass. 213, where it is said that the rule in equity differs from the rule of the common law in certain cases.-' The time within which a bill must be brought to redeem land sold for taxes, was not extended by ' In Thompson's Cases on Equity PI. & Pr. (1903), p. 7 et seq. are several instructive cases on " Suits by and against Infants." 30 PLEADINGS AND PRACTICE IN EQUITY the fact that the petitioner was an infant. G'Day V. Bowker, 143 Mass. 59. As the power of a next friend commences with the suit, he cannot make a previous demand neces- sary for its prosecution. Miles v. Boyden, 3 Pick. 213. An infant must be a party to a suit affecting his real estate. Wakefield v. Marr, 65 Me. 341 ; Rich- mond V. Adams Nat. Bank, 152 Mass. 359. " The general rule that tlie ward is to he made the party in suits which concern his title, is clear and well settled." Lombard v. Morse, 155 Mass. 136. In Jarvis v. Crozier, 98 Fed. Rep. 753, it was said " it is the duty of a court of equity to look after the interest of infant defendants and to protect them in the absence of any one to represent them." This is usually done by the appointment of guardians ad litem. In Lombard v. Morse, supra, it was held that a husband may maintain a suit in equity against his wife, during coverture, to recover property obtained by fraud from him before tiieir marriage. An executor or administrator appointed in an- other State or country caniiut maintain a suit in this State, unless he has taken out letters of admin- istration here ; nor can he foreclose a mortgage of real estate in Massachusetts without that. Anthony V. Anthony, 161 Mass. 343. The rights of a guardian are limited to the State PARTIES PLAINTIFFS 31 of his appointment. Woodworth v. Spring, 4 Allen, 321. As a rule receivers appointed by a court of equity in another State, under the general equity power merely of such court, have not the right to sue in the courts of this State, unless they are actually or virtually assignee of the claim which they seek to enforce. Homer v. Barr Pump. E. Co., 180 Mass. 163 ; Hayward v. Leeson et al., 176 Mass. 310. But a receiver of a corporation, of another State, appointed by the court of that State, pursuant to a statute there, to enforce a stockholder's liability in such corporation, can after due proceedings there establishing that liability sue in the courts of this State to enforce such liability ; to wit, an assessment made on such stock. Howarth v. Lom- bard, 175 Mass. 570. If a man in his lifetime conveys his personal property, fraudulently, to defraud his widow, or heirs, or creditors, the bill to recover it must be brought by the administrator, or executor of his will, and not by the widow or heirs. Flynn v. Flynn, 183 Mass. 365. If either of two or more administrators or exec- utors refuse to join his associate in a suit in favor of the estate, the court may allow the latter to pros- ecute the suit. French v. Peters, 177 Mass. 568. One may sue in equity in a double capacity, as executor, or administrator, and as an individual. Ransom v. Geer, 30 N. J. Eq. 249. 32 PLEADINGS AND PRACTICE IN EQUITY An allegation in an action at law or a suit in equity, that a party is an executor, administrator, guardian, trustee, assignee, conservator, receiver, or is a corporation, shall be taken as admitted, unless the party controverting it files in court within the time allowed for filing the answer thereto, or within ten days after filing of the paper which contains such allegation, a special demand for its proof. E. L., c. 173, § 123. Debts due to different persons severally cannot be joined in one bill under cl. 7, § 3, c. 159, R. L., Chapman v. Bankers ^ T. Pub. Co., 128 Mass. 478. Section 2 of c. 173, R. L. , does not probably apply to bills in equity. It is a good ground of demurrer to a bill, if on the face of it it appears that the plaintiff has no interest in the subject-matter of the suit, or that there is a want of necessary parties. If these ob- jections do not appear on the face of the bill, they can be made by plea. PARTIES DEFENDANTS 33' PAETIES DEFENDANTS In general it may be .stated that those persons who may sue in equity may also be sued. Story's Eq. PL, §67. Excepting the State unless under a statute authorizing it. Troy ^ G. R. R. v. Common- wealth, 127 Mass. 43. And excepting sovereigns of a foreign country. Duke V. King, 6 Beavan, 1. It follows, from what has been said concerning parties, in suits in equity, that if any person or party is necessary, who is not a plaintiff, he must be made a defendant. Of course all those must be made defendants against whom a decree is sought, also all those whose interests would be bound or affected ought to be made defendants, if they are not in the bill as plaintiffs; but this is subject to the qualifications before stated, that where the class of persons is very numerous, so that it is very inconvenient to include them all, such a number of them may be included as will fairly represent the interest of the whole class — and where interested parties are beyond the reach of the court, in which case the court in its dis- 3 34 PLEADINGS AND PRACTICE IN EQUITY cretion may proceed with the suit with the parties in court, and the decree be made " without preju- dice to the rights of such absent parties." ^ But a court of equity can deal with a fund or property in certain cases, which is within its jurisdiction, though the owner of it is not, and though no decree in personam could be made. R. L., c. 159, § 3, cl. 7; Moodi/ v. Gay, 15 Gray, 457; Felch v. Hooper, 119 Mass. 52; Equity Rule V. The death of a joint contractor does not cause the suit to abate. Colh v. Fogg, 166 Mass. 466. There is no instance of a minor, or person under other legal disability, defending by a next friend, who is said in some cases to be an officer ■of the court. Bartlett v. Batts, 14 Ga. 539. "The general rule is well established that a 1 The following rules of the Supreme Court of Judica- ture of England respecting parties to actions, including suits in equity, show the great change in pleading and practice in England which has taken place since the times of " Calvert on Parties " and Chitty. Order XVI, Rule I: "All persons may be joined as plaintiffs in whom the right to relief is alleged to exist, whether jointly or severally or in the alternative; and judg- ment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to without any amendment." Order XVI, Rule IV: " All persons may be joined as defendants, against whom the right to any relief is alleged to exist whether jointly or severally or in the alternative." See Wilson's Practice of the Supreme Court of Judica- ture, 1, 174. PARTIES DEFENDANTS 35 judgment cannot properly be rendered against an infant defendant, in a civil suit, unless he has a guardian, or guardian ad litem, who may defend the suit in his behalf."' Johnson v. Water- house, 152 Mass. 585. If under the terms of a written instrument or otherwise, a minor or person under disability, or a person or persons not ascertained or not in being, may be or may become interested in any property, real or personal, the court in which any action, petition, or proceeding of any kind relative to or affecting any such estate is pending, except the court of land registration, may upon the repre- sentation of any party thereto, or of any person interested, appoint a suitable person to appear and act therein as guardian ad litem, or next friend of such minor or person or persons under disability or not ascertained or not in being; and a judgment order or decree in such proceedings made after such appointment shall be conclusive upon all per- sons for whom such guardian ad litem, or next friend, was appointed. R. L., c. 145, § 23.^ ^ Service of writs and subpoenas in causes where the de- fendant is an infant, or a person under guardianship, or of unsound mind, should be made upon them the same as upon other defendants. Taylor v. Levering, 171 Mass. 303. 36 PLEADINGS AND PRACTICE IN EQUITY BILLS OP INTERPLEADER The object of a bill of interpleader is to get the protection of the court, by a party who stands in the position, substantially, of a stakeholder, not knowing to whom to pay money, or to deliver property which is in his possession, so that he may not be vexed by actions of the contending parties or claimants whose real contention is with each other and not with him. The plaintiff must be a mere stakeholder, hav- ing no interest in the fund or property, — so it was held that an executor who was a residuai'y legatee could not maintain a bill of interpleader, " because of his interest in the subject-matter of the suit. " Ladd v. Chase, 155 Mass. 417. The plaintiff cannot have an order that the defendants interplead, " when one important ques- tion to be tried is, whether by reason of his own act, he is under a liability to each of them." " He may have incurred a double liability. " Nat. Life Ins. Co. v. Pingrey, 141 Mass. 411 ; Stone v. Reed, 152 Mass. 179 ; WeatJierhee v. New York Life Ins. Co., 182 Mass. 342. " The rationale of interpleader is not to protect ' BILLS OF INTERPLEADER 37 a party from a double liahility, but from a double vexation in respect to one liability." It was entertained against two towns to deter- mine in which the plaintiff was taxable, the parties making no objection. Forest River Lead Co. v. Salem, 165 Mass. 193. A mere stakeholder is not obliged in equity to wait until he is sued before he can bring his bill of interpleader. Angell v. Sadden, 15 Ves. 244. He cannot be heard in the argument. No solic- itor of the plaintiff shall appear or be heard for either of the defendants. Equity Rule XXVI. Batchelder, Petitioner, 147 Mass. 470. " Where there are conflicting claims to a trust estate, the trustee by filing a bill in the nature of a bill of interpleader, to which he makes parties those who claim to have an intei-est in the trust estate, can ask the direction of the court as to the proper mode of administering the trust, and can also be protected in the disposal of the prop- erty in his hands." Fairhankg v. Belknap, 135 Mass. 179 ; TreadweU v. Salisbury Manuf. Co., 7 Gray, 400. The essential conditions of an interpleader are four: 1. The same thing, debt, or duty must be claimed by both or all the parties against whom relief is demanded. 2. All their adverse titles or claims must be dependent on or derived from a common source. 38 PLEADINGS AND PRACTICE IN EQUITY 3. The plaintiff must not have or claim any, interest in the suhject-matter. 4. He must have incurred no independent lia- bility to either of the claimants. Pomeroy's Equity Jurisprudence, vol. 3, § 1322. And a bill of interpleader will not lie by a debtor against his creditor and a third person, who claims the debt not through any privity with the creditor, but by a title paramount and adverse to his. Third Nat. Bank v. Skillings Lumber Co. , 132 Mass. 410. But "a debtor cannot deprive his creditor of his remedies at law, and force him into equity, merely because a third person claims the fund or debt by a title not derived from the creditor." Third Nat. Bank v. Skillings Lumber Co., 132 Mass. 410. It may be filed by a corporation to determine which of two opposing claimants of certain stock is entitled to a dividend. Salisbury Mills v. Townsend, 109 Mass. 115. ^ The statute, § 37, c. 173, R. L., in terms is limited to actions at law; but when claimants are summoned in and appear, power is given the court "to hear and determine the rights of the ' A bill of interpleader has been held to lie where there are several claimants for portions or parts of a fund, if the aggregate of all the claims exceed the amount of the fund, if the plaintiff is in the position of a stakeholder merely, and is unable to determine to whom or what amounts are to be paid to each. School Dis. v. Weston, 31 Mich. 85. BILLS OP INTERPLEADER 39 respective parties," which is an equity power; and in Worthington v. Waring, 157 Mass. 428, it is said in such case, then "the action becomes sub- stantially a suit of interpleader." Bills filed by an administrator appear to have been favorably considered under facts peculiar to the cases. Stevens v. Warren, 101 Mass. 564; Muldoon V. Muldoon, 133 Mass. 111. It has been held in many cases that injunction will not issue against either of the claimants pros- ecuting an action unless the plaintiff has brought the fund in dispute into court. ParTcer v. Parker, 42 N. H. 78; Gardner Inst. v. Emerson, 91 Me. 535 ; Bassett v. Leslie, 123 N. Y. 396. The plaintiff in his bill should negative any in- terest in the fund or property, and should set out the claims of the others specifically so that the court may see that all the claims have a common source. Formal defects in the pleadings will be considered waived if not seasonably objected to. Cohh V. Rice, 130 Mass. 231. i 1 If an injunction is sought, as is commonly the case in a bill of interpleadel', the bill should be sworn to, or verified by affidavit, as provided in standing order 5. And it seems that the old rule — well established, but now not uniformly observed — that the plaintiff must annex an affidavit that the bill is not filed collusively between hira and any of the defendants, is still in force. It is at least the safer course to annex such affidavit, or to include a statement to the same effect, in the oath to the bill ; or to make the state- ment in the bill, if it is sworn to. All the latest authorities 40 PLEADINGS AND PRACTICE IN EQUITY Interpleader to determine to which of two or more parties the plaintiff should convey real estate are not common, but such a case was Farley v. Blood, 30 N. H. 354. Interrogatories may be filed by one claimant to another in such case. Colb v. Rice, 130 Mass. 231. If any party duly cited to appear and show cause why he should not interplead fails to appear and answer, the bill may be taken as confessed as to him, and that his alleged claim is groundless. Badeau v. Rogers, 2 Paige Ch. 209. on Equity Pleading refer to the rule as still in force. Al- drich on Eq. PI., 2d ed. 119. Van Zile, Eq. PI. & Pr., § 379 (1904). An approved form of such affidavit is : " That the bill is not filed by me in collusion with any or either of the de- fendants named in the bill, but is filed by me on my own accord for relief in this court." A collection of cases ou " Interpleader in Equity " is found in a note to Shaw v. Coster, 35 Am. Decisions, pp. 695-712. A valuable and moi'e recent (1903) collection of such cases has been made by Professor Ames. Cases on Equity Jurisdiction, ch. 5. There are cases where a bill in the nature of a bill of interpleader has been sustained to " avoid circuity of ac- tion." Pease v. Royal Society, 176 Mass. 506. CROSS-BILLS 41 CROSS-BILLS " A CROSS-BILL for relief is where, in the original suit, all things in litigation touching the subject- matter cannot be brought before the court, but the defendant, in order to obtain a complete settle- ment of the controversy, is entitled to some relief which the scope of the plaintiff's bill will not afford him." Richards v. Todd, 127 Mass. 167. It must relate to the same subject-matter, and be between the same parties and brought in the same court, as the original bill ; and ordinarily filed before final hearing on the original bill. Tansey v. McDonnell, 142 Mass. 220. This case, in which the opinion was by Field, J., contains a valuable discussion on the subject of cross-bills, pleas, and answers, and the prac- tice upon them in this State. " A cross-bill, if filed in season, may be sus- tained for the purpose of obtaining an equitable set-off; and in such a case it is not necessary for the plaintiff to show any ground of equity, as against the plaintiff in the original bill, to sup- port the jurisdiction of the court; a cross-bill being considered as a defence to the original suit;" but the original suit ought not to be greatly delayed for such cross-bill ; and the plain- 42 PLEADINGS AND PRACTICE IN EQUITY tiff in the cross-bill was held guilty of laches in Cartwright v. Clark, 4 Met- 104. The allegations of the cross-bill must be con- sistent with the answer to the original bill. Where the plaintiff asks for an accounting, and for an alleged balance, if it turns out that the balance is due the defendant, he may have a de- cree for it in the original suit without a cross- bill. Goldthwait v. Day, 149 Mass. 185. So of some other kinds of relief. Cohurn v. Cedar Valley Land Co., 138 U. S. 221, 222. Whether the dismissal of the original bill car- ries with it the cross-bill depends on the character of the lattery where the latter sets up additional facts and prays for affirmative relief, the dismissal of the original bill does not dispose of the cross- bill. Lowenstein \. Glidewell, 5 Dillon, 325. But it is otherwise if the cross-bill is merely a defence to the original bill.^ 1 " It frequently happens, and particularly if any ques- tion arises between two defendants to a bill, that the court cannot make a complete decree without a cross-bill, or cross- bills, to bring every matter in dispute completely before the court, litigated by the proper parties and upon proper proofs. In this case it becomes necessary for some, or one, of the defendants, to the original bill to file a bill against tlie plaintiffs and other defendants in the bill, or some of them, and bring the litigated point before the court." Mitford PI. in Eq. (4th ed.) 81. And if a cross-bill sets up only a defence, which defence would be available in answer to the original suit, it is demurrable. Newbury v. Blatchford, 106 111.. 599. BILLS OF DISCOVERY 43 BILLS OF DISCOVERY Bills of discovery have been largely superseded by the more convenient method of obtaining the information — which was once only obtainable by them — by interxogatories to the adverse party in the same suit ; and by compelling the adverse party to testify at the trial. ^ In Wilson v. Weller, 2 Gray, 558, Bigblow, J., said of the right to in- terrogate the adverse party, — " The main purpose of these provisions of the practice act was to sub- stitute, in place of the tedious, expensive, and complex process of a bill of discovery on the equity side of the court, an easy, cheap, and simple mode of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought." — "But these statutory provisions have not taken away the jurisdiction of the court to entertain bills of discovery, although they may affect the exercise of this jurisdiction in reference to suits brought in our own courts." Field, J., in Post V. Toledo, ^c, R. R., 144 Mass. 341, which was 1 In Preston v. Smith, 26 Fed. Reporter, 889, Brewer, J., .said that bills of discovery had fallen into a condition of "innocuous desuetude." 44 PLEADINGS AND PRACTICE IN EQUITY a bill brought against the officers of a foreign corporation, for the discovery of the names of the stockholders of the corporation. See R. L., c. 159, §§ 12, 13. But in Kelly v. Morrison, 176 Mass. 531, it is said that " a bill for discovery of evidence to be used in defence of an action does not ordinarily lie against a person not a party to that action, and whose only relation to it is that of a witness." Yet § 13 of c. 203, R. L., is a strong implica- tion that bills of discovery may be maintained and parties made defendants for no other pur- pose, or reason, than "the discovery of facts " from them, in order to maintain the suit against others, as was formerly often done. A bill of discovery in aid of an action at law for damages for personal injuries, will lie to com- pel the defendant, an employer, to produce for the inspection of the plaintiff, the administrator of an employee deceased, the defective and broken parts of macliinery on which the employee was at work when injured, which defects are alleged to have been the cause of the injury. Reynolds, Admx., v. Burgess Sulphite Co., 71 N. H. 332.1 1 The opinion of Jud^e Chase in this case contains a review of the American and English cases, and is a valu- able contribution to the law on this subject. SUPPLEMENTAL BILLS 45 SUPPLEMENTAL BILLS Bills of Revivor and Supplemental bills, con- cerning which much learning and discussion has been expended, have almost entirely fallen into disuse, by reason of Equity Rule XXV, by which the same results are practically accomplished by amendments. Murray v. Behon, 102 Mass. 11. Concerning supplemental bills, it is said, "If a plaintiff, at the time he filed his bill, has no cause of action, he cannot file a supplemental bill to maintain his suit upon a cause of action that accrued afterwards, even though it may have arisen out of the same transaction. " MeMurtrie V. Gruiler et al, 183 Mass. 451. " But this does not preclude him from maintain- ing such a bill which does no more than to bring into the case facts that have arisen since the orig- inal bill was filed, and which refer to or support the matters already before the court." Ibid. 455. 46 PLEADINGS AND PRACTICE IN EQUITY DEMURRERS " A DEFENCE to a suit in equity shall be made by demurrer, plea, or answer." R. L., c. 159, § 13. "The defendant may demur to part, plead to part, and answer as to the residue." Equity Rule IX. " Whenever any ground of defence is apparent on 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 de- murrer." Story, Bq. PI., § 446. By Equity Rule XIII 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. " But the more modern practice and the one sanctioned by Mitford, Lord Redesdale, and other standard writers, is to file each pleading by itself." Beach, Mod. Eq. Pr., Vol. I, § 244; Fletcher, Eq. Pr., § 193. But where the defendant demurs to a part and answers to a part, he ought to specify clearly and precisely what part he demurs to. Beach, Mod. Eq. Pr., Vol. I, § 241. DEMURRERS 47 And it is not a proper way of demurring to say that the defendant answers to such a part "and demurs to the rest." Mitford, Eq. Pr., §§ 213, 214. A demurrer must be accompanied by a certifi- cate that it is not intended for delay. R. L., ch. 159, § 13. And the objection that a demurrer is not ac- companied by such certificate is deemed to be waived if the case is reserved for the full court, without calling the attention of the justice to it. Nehon v. Ferdinand, 111 Mass. 300. If the demurrer is in the answer in the form of " special matter " mentioned in Equity Rule XIII, no certificate that it is not intended for delay is necessary. Hoar, J. , in Mill River Loan F. Assn. V. Claflin, 9 Allen, 101. A demurrer assumes — for the purpose of the demurrer only — the truth of the facts well pleaded in the bill, — but does not admit the correctness or truth of what are merely conclu- sions or inferences. Lea v. Robeson, 12 Gray, 280.1 Or the construction of an instrument alleged by the pleader, or that a fraud was committed unless the facts show it. Ibid. 1 It is not correct to say that the defendant by demurring admits the allegations of fact in the bill; for, if the de- murrer is overruled, the plaintiff is obliged to prove them the same as if no demurrer had been filed. 48 PLEADINGS AND PRACTICE IN EQUITY A general demurrer is, in effect, that the plain- tiff has not stated such a case in his bill as en- titles him to relief in equity. A special demurrer points out, or specifically assigns, the causes of it, as required of demurrers in actions at law. R. L., c. 173, § 14. A demurrer to an answer is not known in equity pleading; defects in an answer are taken advan- tage of by exceptions, or, if the plaintiff considers that the answer is not sufficient, he should not file a replication, but at once have the case set down for hearing on the bill and answer. Barry V. Abbott, 100 Mass. 396 ; Equity Rule XVJ. In which event only the facts well pleaded in the answer are to be taken as true. If the demurrer is general to the whole bill, and the bill is good for any relief, the demurrer should be overruled. Pope v. Salamanca Oil Co., 115 Mass. 287 ; Wright v. Dame, 1 Met. 241 ; Dim- mock V. Bixby, 20 Pick. 368. A demurrer should not allege any new fact not appearing in the bill, or it will be open to the defect of a "speaking" demurrer. Story's Equity PI., § 448. That is, it will lose its character as a de- murrer. And if a demurrer is joint — i. e., by two or moi-e, and the bill is good as to one of them, it must be overruled ; but a separate or several de- murrer may be good as to one and not as to DKMUBREKS 49 another defendant. Wooden v. Morris, 3 N. J. Eq. 65 ; Brown v. Tallman, N. J. Eq. (1903). If a demurrer is sustained it is not usual to dismiss the bill at once; the usual course is to allow a plaintiff a reasonable time, after a de- murrer has been sustained, either on the ground of defect in form, or for want of equity, to move to amend his bill, for the purpose of supplying the defect, or alleging new or additional grounds for the equitable relief which he seeks. Newhury- port Bank v. Stevenson, 7 Allen, 489; Parker V. Flagg, 127 Mass. 30. Multifariousness as applied to a bill in equity " is where a party is able to say that he is brought in as a defendant upon a record, with a large por- tion of which, and of the case made by which, he has no connection whatever." Lord Cottenham in Campbell v. Mackay, 1 Myl. & Cr. 618. Or " when a bill is founded upon distinct rights, not so related to each other that the court should deal with both in the same bill." Davis v. Pea- hody, 170 Mass. 397. Or " when different causes of actions are joined which cannot be properly tried together." Syl- vester V. Boyd, 166 Mass. 445 ; Pope v. Leonard, 115 Mass. 286 ; Bicker v. Brooks, 155 Mass. 400 ; or, a bill joining distinct claims against different defendants. Keith v. Keith, 143 Mass. 262 ; Davis V. Peabody, 170 Mass. 397. But a bill is not multifarious because the plain- 4 50 PLEADINGS AND PRACTICE IN EQUITY tiff sues in two capacities, or because he seeks to redeem from two distinct mortgages on different parcels of land, or because the plaintiff claims the same thing under different titles. Robinson v. Guild, 12 Met. 323; or because he seeks in one bill to recover different kinds of property, real and personal, conveyed pursuant to one scheme of fraud. Parker, Exr. , v. Flagg, 127 Mass. 28. The objection that a bill is multifarious is one upon which there is no inflexible rule, and the question whether it should be sustained must be determined largely by the circumstances of the particular case. Bliss v. Parks, 175 Mass. 589. Usually at the hearing on the demurrer the solicitor in support of the demurrer is first heard, then the solicitor in support of the bill, and then the solicitor in support of the demurrer replies. 1 Daniell's Ch. PI. & Pr., 596. A demurrer will be deemed to be waived, if a case proceeds to a hearing on the merits, before the court or master, without bringing the de- murrer to the attention of the court. Driscoll V. Smith, 184 Mass. 222; Crocker v. JDillon, 133 Mass. 91; Parker v. Nickerson, 137 Mass. 487; Creely v. Bay State Bk. Co., 103 Mass. 514. Technicalities and all matters of form are con- sidered waived, if not seasonably objected to. Pingree v. Coffin, 12 Gray, 288 ; Cohh v. Rice, 130 Mass. 231 ; Nelson v. Ferdinand, 111 Mass. 300. ^ 1 When a bill is defective as to substance, it should be demurred to, to save the time and expense of the hearing DEMURRERS 51 The objection that the plaintiff has a plain and complete remedy at law may come too late ; such objection should be made without delay at the earliest opportunity. Dearth v. Hide ^ Leather Bank, 100 Mass. 540. So, the objections that the bill is multifarious, or that the master did not allow five days to file objections to report under Eule XXXI, may come too late. Cohh v. Fogg, 166 Mass. 466. There is no exception to an answer for insuffi- ciency. Equity Rules XVII and XVIII apply only to bills of discovery. Pearson v. Treadwell, 179 Mass. 462. And "an exception to an answer for imperti- nence must be allowed in whole or not at all." Stokes V. Farnsworth, 99 Fed. Rep. 836. And it cannot be taken after replication has been filed. If a bill shows laches on its face the defence may be taken by demurrer. Doane v. Preston, 183 Mass. 669; and if such demurrer is over- ruled the defence may still be made in the answer, provided there are any new facts to support it, on the merits. Where the defect is as to form only it may be demurred to, and should be if it is intended to take advantage of such defect; but it has been said that "courts of equity are apt to look with a suspicious eye upon defend- ants who, by availing themselves of every cause of demurrer or plea, show an unwillingness fairly to meet the plaintiff's case." Barton on Eq., 1st ed., p. 113. (Mewshaw v. Mew- shaw, 2 Md. Ch. 12.) 62 PLEADINGS AND PRACTICE IN EQUITY and a waiver or withdrawal of such a demurrer is not a waiver of the defence of laches if set up in the answer. Snow v. Boston Blank Book Co., 153 Mass. 456. Submitting the case upon an agreed statement of facts is a waiver of all objections to the pro- cedure, unless such objections are expressly re- served also. Russell v. Loring, 3 Allen, 125. Among the chief grounds of demurrer, are : 1. That the plaintiff in his bill has not stated a case for equitable relief. 2. That there is a want of the necessary parties. 3. That the bill is multi- farious. 4. The statute of frauds. 5. The statute of limitations. 6. Laches (if it appears on the face of the bill). 7. That it appears that the plaintiff has no interest in the bill. Besides these there may be demurrers for some defect or defi- ciency in matters of form, as want of certainty or the absence of some necessary allegation. A demurrer or plea need not contain a protesta- tion or concluding prayer. R. L., c. 159, § 13. PLEAS 53 PLEAS The office of a plea in equity is to bring forward a fact or law — a single ground of defence — not appearing on the face of the bill, — which, if estab- lished as true, is sufficient to defeat the suit ; and thus save the time and expense of tr3'ing the whole case through. Rowe v. Teed, 15 Yes. SIT. Story's Eq. PL, § 647. " It sometimes happens that a bill — which, if all the parts of the case were disclosed, would be open to a demurrer — is so artfully drawn as to avoid showing on the face of it a cause of demurrer. In such a case the defendant is compelled to resort to a plea, by which, he may allege matter which if it appeared on the face of the bill, would be a good cause of demurrer." Lord Redesdale, cited iji U Arcy v. Beytagh, Flanagan