^mmmmf^ (IlnrnfU IGam ^rl|nnl library Cornell University Library KF 8855.R31 1876 A treatise on the pleadings in suits in C.2 3 1924 020 098 442 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020098442 MITFORD'S AND TYLER'S PLEADINGS AND PRACTICE IN ^tllTX.. A TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY BY ENGLISH BILL. By JOHN MITFORD, Esq., {The late Lord Redesdcde.) WITH THE NOTES OF GEORGE JEREMY, Esq. AND ADDITIONAL NOTES By JOSIAH "W. SMITH, B. C. L., Of Llncoln's-InD, Esq., Barrister-at-Law. SUPPLEMENTED Bt an Iktrodtiction ; Disseetatioks on Parties to Suits in Equity ; Pleadings in Suits in Equity ; Pkactice in Suits in Equity ; WITH FOBMB OP PeOCEDUKE IN EQUITY, AND NOTBS ; AND THE PeACTICE in EQUITY OF THE UNITED STATES CoURTS. By SAMUEL TYLBE, LL. D., Frofeesor In the Law Department of Columbian UnlverEity, at Washington, D. C. ; Author of the *' Maryland Simplified Pleading ; " an EclUfon of " Stephen on Common Law Pleading ; " Memoir of Chief Justice Taney, etc., etc. NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAU STREET. 1876. 1545 Entered according to Act of Congress, in the year eighteen hundred and seventy-six, by SAMUEL TYLER, In the office of the Librarian of Congress, at Washington. BAKER & GODWIN, Printers, as Pailt Row, N. V. THE ALUMNI LAW SCHOOL OF COLUMBIAN UNIVERSITY, THIS WORK IS RESPECTFULLY INSCRIBED. PEEFACE " To no authority, living or dead, can reference be had with more propriety " (said Sir Thomas Plumer), " for correct information respecting the principles by which courts of equity are governed, than to one whose knowledge and experience enabled him, fifty years ago, to reduce the whole subject to a system with such a universally acknowledged learning, accuracy, and discrimination, as to have been ever since received by the whole profession as an authoritative standard and guide." This was said of Mitford and his work now before us. The first edition of the work was published 1782; the second, 1787; the third, with large additions, 1814; the fourth edition, with references and notes, by George Jeremy, 1827. Jeremy prepared his edition under the super- vision of the author, who died in 1830. 1 pass by the six American editions of Mitford ; as a notice of them is not with- in the purpose of this book. Mitford was, in 1802, appointed Lord High Chancellor of Ireland ; and, in 1809, was raised to the peerage, as Baron Eedesdale. He had, some time before, resigned the Chancel- lorship of Ireland. Walpole, in his Lectures on Equity at the London Law Institution, says of Lord Eedesdale's Treatise on Pleading : " It was composed, moreover, not for ambition or profit, but simply in the course of his duties, for the education of another man, at that time only his pupil, and who profited so greatly by its profound learning, and gained from it such (V) VI PREFACE. a thorough knowledge of sound principles, that not long aftfer the retirement of his gifted instructor, that pupil suc- ceeded him in the same distinguished office. I mean the present Lord Manners." So I, simply in the course of my duties as a teacher of equity, have reproduced the work of Mitford, supplemented by treatises which, I trust, make it a work on pleadings in equity adequate to the requirements of instruction at the present time ; and have added to it a treatise on practice in equity, with sufficient forms, so as to make the volume a guide, both to the student and the prac- titioner, through the whole course of equity procedure. It is important to the student of any subject to be able to take in the whole of it at on'e view, so as to comprehend it as a system of correlated and coherent principles, rules and doctrines. To that end, I have given a succinct treatise on pleadings in suits in equity, by which the principles, the rules, and the forms, with their respective functions, can be compre- hended as a complete scheme, fulfilling all the ends in con- ducting a suit in equity. The knowledge thus obtained can be completed by the study of the treatise of Mitford. The treatise on Parties which I have given, while sufficient for the practitioner, is so succinct that its doctrines are readily com- prehended as constituting a system of logical consistency. And the analysis of it given in the index, under the word "Parties," puts the subject within still narrower limits of view. The treatise on Practice which I have given, as con- cise and practically consecutive as it is, is rendered still plainer by the analytical index by which it is accompanied. And the practitioner, also, will derive profit from seeing the subjects in system. The whole volume is prepared in accordance with the dictum of Lord Mansfield, in 3 Doug. 332 : " The law does not consist of particular cases, but of general principles, which PREFACE. Vll are illustrated and explained by those cases." The present style of editing books, by overloading them with vast accu- »miilations of references to cases, makes them rather indexes than treatises, and unfits them for books of instruction. I have used the last English edition of Mitford, by Josiah W. Smith. While I have retained all the notes and references by Jeremy, I have left out far the larger part of those by Smith as altogether unsuited to my purpose, consisting as they do of a digest of cases on Parties, and references to the modified English practice, of no authority in this country. I have added some marginal notes and references of my ovra to the treatise of Mitford. S. T. Washikgton City, D. C, Sept. 20, 1876. CONTENTS. INTRODUCTION. By Samuel Tyler. The importance of establishing universality of doctrine in equity. — The rela- tion between equity and the Roman civil law. — The English " Supreme Court of Judicature Act, 1873." — The development of jurisprudence by the courts. — The law embodied in the decisions of courts reduced to system by the writings of lawyers. — The difference between cases of hostile litigation and mere administrative cases, in relation to pro- cedure. — The experience in England in regard to changes in equity procedure, 1-15. II. OF PARTIES TO SUITS IN EQUITY. By Samuel Tyler. [7%i? contents of this Treatise on Parties are given in the Index to Pleadings, at page l^il' under the word " Parties."] III. OF PLEADINGS IN SUITS IN EQUITY. By Samuel Tyler. The character of the jurisprudence of the United States. — Why it is di- vided into law and equity. — How a suit in equity is commenced. — The nature of a bill in equity. — Of how many parts it consists, and the respective functions of these parts, 57-66. The several modes of defense, and their respective purposes, 66-70. -The modern policy of equity pleadings to bring the whole case within the bill and answer, 70-72. Two great classes of bills, original and not original ; and also divisions of these into other classes, 72, 73. The confusion produced by the modem practice of making all defenses by answer, 73-77. (ix) X CONTENTS. To wh^t issues the right of discovery attaches, "]"]. When the defense is by answer, full discovery must be made, and why, 78, 79- Two elements in equity pleadings, the element of discovery or evidence, and the element of defense. — Not distinguishing these two elements in equity pleadings, the cause of great confusion in practice, 79-81. The mode of excepting to an answer for insufficiency. — The right of ex- ception pertains to discovery, not to defense. — When the bill waives an oath to the answer, it cannot be excepted to, and why, 81-88. Besides, the different grounds of defense which the defendant may set forth and rely upon by demurrer, by plea, by answer responsive to the bill, or an answer in negation or avoidance of it, there may be found, at the hearing, a substantial defense arising out of the whole case, which has not in any way been specially advanced and relied upon by the defendant in his pleadings, 89, 90. The settled doctrine of federal jurisprudence, that a question of boundary between two States of the Union is one of equity jurisprudence, and governed by equity pleading and practice, 94. IV. A TREATISE ON THE PLEADINGS IN SUITS IN THE COURT OF CHANCERY, BY ENGLISH BILL. By John Mitford, Esq^, the late Lord Redesdale. introduction. Of the extraordinary jurisdiction of the Court of Chancery, and of the manner in which suits to that jurisdiction are instituted, defended, and brought to a decision, 99-116. OF BILLS— Chap. L Sec. L By whom, and Against whom, a Bill may be Exhibited, 117. /. By whom. 1. On behalf of the crown, and of those who partake of its prerogative, or claim its particular protection. — By the king's attorney general or other proper officer, 117. 2. On behalf of bodies politic and corporate, and persons who do not partake of the prerogative of the crown, and have no claim to its particular protection. — By themselves, 119. 1. Alone. — Bodies politic and corporate, and all persons of full age, not being married women, idiots or lunatics, 119. 2. Under the protection of others — 1. Infants, 120. 2. Married women, 123. 3. Idiots and lunatics, 124. CONTENTS. XI //. Against whom. 1. Where the rights of the crown, or of those who partake of its pre- rogative, or claim its particular protection, are concerned — Against the king's attorney general or other proper officer, 125 2. In all other cases. — Against all bodies politic and corporate, and all persons, married women with their husbands, and idiots and lunatics with their committees, 125. Chap. I, Sec. II. Of the several kinds and Distinctions of Bills, 127. /. Original bills. 1. Praying relief, 128. 1. A bill praying the decree of the court touching some right claimed by the plaintiff in opposition to the defendant, 128. 2. A bill of interpleader, 128. 3. A certiorari bill, 128. 2. Not praying relief, 128. 1. A bill to perpetuate the testimony of witnesses, 129. 2. A bill for discovery, 129, 141. //. Bills not original. 1. A supplemental bill, 129, 158, 172. 2. A bill of revivor, 129, 167, 173. 3. A bill of revivor and supplement, 129, 168, 177. ///. Bills in the nature of original bills. 1. A cross-bill, 129, 177. 2. A bill of review, 120, 181. 3. A bill in the nature of a bill of review, 127, 190. 4. A bill to impeach a decree on the ground of fraud, 129, 191. 5. A bill to suspend or avoid the execution of a decree, 130, 192. 6. A bill to carry a decree into execution, 130, 192. 7. A bill in the nature of a bill of revivor, 130, 168, 176. 8. A bill in the nature of a supplemental bill, 130, 169, 195. Chap. I, Sec. III. Of the Frame and End of the several Kinds of Bills, and OF Informations, 130. /. Original bills. I. Praying relief, 131. 1. A bill praying the decree of the court touching some right claimed by the plaintiff in opposition to the defendant, 131. 2. A bill of interpleader, 147. 3. A certiorari bill, 168. Xll CONTENTS. 2. Not praying relief, 149. 1. A bill to perpetuate the testimony of witnesses, 148. 2. A bill of discovery, 149. //. Bills not original. 1. A supplemental bill, 159, 172. 2. A bill of revivor, 167, 173. 3. A bill of revivor and supplement, 168, 177. ///. Bills in the nature of original bills. 1. A cross-bill, 178. 2. A bill of review, 180. 3. A bill in the nature of a bill of review, 191. 4. A bill to impeach a decree on the ground of fraud, 190. 5. A bill to suspend or avoid the execution of a decree, 192. 6. A bill to carry a decree info execution, 192. 7. A bill in the nature of a bill of revivor, 168, 194. 8. A bill in the nature of a supplemental bill, 169, 165. IV. Informations, 196. Chap. II, Sec. I. Of Defense to Bills.— By whom a -Suit may be Defended, 199. 1. On behalf of the crown, or of those who partake of its prerogative, or are under its particular protection. — By the king's attorney general or other proper officer, 199. 2. On behalf of bodies politic and corporate, and of persons who do not partake of the prerogative of the crown, and have no claim to its par- ticular protection, 200. 1. By themseNes — Bodies politic and corporate, and all persons of full age, not being married women, idiots or lunatics, 200. 2. Under protection of, or jointly with others, 200. 1. Infants, 200. 2. Idiots and lunatics, 208. 3. Married women, 201. Chap. II, Sec. II. Of the Nature of the various Modes of Defense to a Bill, 202. Part I.— DEMURRERS, 202, 203. /. To original bills, 205. I. To relief, 206. I. That the subject is not within the jurisdiction of a court of equity, 206. II. That some other court of equity has the proper jurisdiction, 206, 243. CONTENTS. Xni III. That the plaintiff is not entitled to sue by reason of some personal disability, 206, 245. IV. That he has no interest in the subject, or no title to institute a suit concerning it, 206, 246. v. That he has no right to call on the defendant concerning the sub- ject, 206, 251. VI. That the defendant has not that interest in the subject which can make him liable to the claims of the plaintiff, 206, 253. VII. That for some reason, founded on the substance of the case, the plaintiff is not entitled to relief, 206, 256. VIII. That the bill is deficient to answer the purposes of complete justice, 206, 256. IX. That distinct objects are confounded in the same bill, 206, 271. Of the Cases in which a Court of Equity assumes Jurisdic- tion. 1. Where the principles of law by which the ordinary courts are guided give a right, but the powers of those courts are not sufficient to afford a complete remedy, 207, 208. 1. Where there is no remedy, or no complete remedy at law, 208. 2. Where remedy attempted is defeated by fraud or accident, 221. 2. Where the courts of ordinary jurisdiction are made instruments of of injustice, 207, 224. 3. Where the principles of law by which the ordinary courts are guided give no right, but upon the principles of universal justice, the interference of the judicial power is necessary to prevent; a wrong, and the positive law is silent, 207, 226. 4. To remove impediments to the fair decision of a question in other courts, 207, 227. 5. To provide for the safety of property in dispute pending a litiga- tion, 207, 229. 6. To prevent assertion of doubtful rights in a manner productive of irreparable injury, 207, 230. 7. To prevent injury to a third person by the doubtful title of others, 208, 234. 8. To put a bound to vexatious and oppressive litigation, 208, 236. 9. To compel a discovery, 208, 241. 10. To preserve testimony, 208, 241. II. To discovery, 206, 281. 1. That the case made by the bill is not such wherein a court of equity assumes a jurisdiction to compel a discovery, 281. 2. That the plaintiff has no interest in the subject, or no interest which entitled him to call on the defendant for a discovery, 281, 283. 3. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for a discovery, 281, 283. XIV CONTENTS. 4. That there is no privity of title between the plaintiff and defendant, which can give the plaintiff a right to the discovery, 281, 285. 5. That the discovery, if obtained, cannot be material, 281, 286. 6. That the situation of the defendant renders it improper for a court of equity to compel a discovery, 281, 289. //. To every other kind of bill. 1. Bills of revivor and supplemental bills, 296, 297. 2. Cross-bills, 297. 3. Bills of review, and bills in nature of bills of review, and bills to impeach a decree or suspend or avoid its execution, 298. 4. Bills to carry a decree into execution, 300. 5. Bills in the nature of bills of revivor, or of bills of supplement, 300. ///. Of the frame of deinurrers, and the manner in -which their validity may be deterinined, 302. Chap. II, Sec. II, Part II. Pleas, 202, 311. /. To original bills. I. To relief, 312. 1. That the subject is not within the jurisdiction of a court of equity, 314. 2. That some other court of equity has the proper jurisdiction, 316. 3. That the plaintiff is not entitled to sue by reason of some personal disability, 318. 1. That the plaintiff is outlawed, 318. 2. Excommunicated, 319. 3. A popish recusant, 320. 4. Attainted, 330. 5. An alien, 320. 6. Incapable of instituting a suit alone, 321. 4. The plaintiff is not the person he pretends to be, or does not sus- tain the character he assumes, 321. 5. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it, 323. 6. That he has no right to call on the defendant concerning it, 326. 7. That the defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear, 327, 8. That the defendant has not that interest in the subject which can make him liable to the demands of the plaintiff, 327. 9. That for some reasons founded on the substance of the case, the plaintiff is not entitled to relief, 328. I. Matter of record, or as of record, in a court of equity, 328. 1. A decree or order, 329. 2. Another suit depending, 336. CONTENTS. XV 2. Matters of record, or as of record, in some court not a court of equity, 340. 1. A fine, 340. 2. A recovery, 343. 3. A judgment or sentence, 343. 3. Matters in pais, 347. 1. A stated account, 237. 2. An award, 347. 3. A release, 347. 4. A will or conveyance, 347. 5. Circumstances bringing a case within the protection of a statute, 347. 10. That supposing the plaintiff entitled to the assistance of the court to assert a right, the defendant is equally entitled to the protection of the court to defend his possession, 361. 11. That the bill is deficient to answer the purposes of complete jus- tice, 366. II. To discovery, 368. 1. That the plaintiffs case is not such as entitles a court of equity to assume a jurisdiction to compel a discovery in his favor, 369. 2. That the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery, 369. 3. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery, 370. 4. That the situation of the defendant renders it improper for a court of equit>to compel a discovery, 371. 1 . Because the discovery may subject the defendant to pains and penalties, 371. 2. Because it will subject him to a forfeiture, 371. 3. Because it would betray the trust reposed in a counsel, attor- ney, or arbitrator, 371. 4. Because he is a purchaser for a valuable consideration, without notice of the plaintiffs title, 371. //. To bills not original, 375. I. To bills of revivor and supplemental bills, 375. ///. To bills in the nature of original bills, 376. 1. Cross-bills, 377. ' 2. Bills of review, and bills in nature of bills of review, and bills to im- peach a decree, or suspend or avoid its execution, 377. 3. Bills to carry decrees into execution, 379. 4. Bills in the nature of bills of revivor, or of supplemental bills, 378. XVI CONTENTS. IV. Of matters relative to pleas in general, 376. 1 . The nature of pleas in general, 379. 2. Their form, 379. 3. The manner in which they are offered to the court, 379. 4. The manner in which their validity is decided, 380. Chap. II, Sec. II, Part III. /. Answers an4 disclaimers, 202, 303. 1. The general nature of answers, 393. 2. The form of an answer, 393. 3. The manner in which the sufficiency of answers is decided upon, and their deficiency supplied, 407. 4. The nature and form of disclaimers, 409. //. Demurrers, pleas, answers, and disclaimers, or any two or more of them jointly, 410. Chap. Ill, Of Replications and Their Consequences, 412. 1. Of general replications, 412. 2. Of special replications, and the subsequertt pleadings anciently used, 412. 3. Of subpoena to rejoin, and rejoinder, 413. Chap. IV. Of Incidents to Pleadings in General, 415. OF PRACTICE IN SUITS IN EQUITY. By Samuel Tyler. ■s. {The contents of this Treatise on Practice are given in the index tCf l Treatise, at page 751.] VI. APPENDIX, 651-718. Rules of Practice for the Courts of Equity of the United States, 687-715. INTRODUCTION. BY SAMUEL TYLER. The Constitution of the United States recognizes both common law and equity as Federal jurisprudence, with their respective procedures, just as the separate States had done for themselves respectively. As, there- fore, the same legal and equitable doctrines, and the same principles of procedure, at law and in equity, pre- vail in the Federal and State courts, it is manifestly expedient, in order to maintain a uniform jurisprudence, that the great English treatises on common law and equity pleading, which are recognized guides in both the Federal and the State courts, should be edited from rather a Federal than a State point of view. Judges of the Supreme Court of the United States, when deliver- ing the opinion of the court, as well as in dissenting opinions, sometimes introduce into their reasonings the provincial narrowness and idiosyncracies of the courts of their respective States. This should be prevented, by establishing a universality of doctrine. Therefore, the variant decisions of the respective State courts should not be adduced in notes as authority, but rather the decisions of the Supreme Court of the United States, and those of the State courts which accord with them. And the decisions of State courts which do not accord with them should be analyzed and tested by the 2 INTRODUCTION. general principles which pervade the system of plead- ing, so that the light of the contrary decisions should be presented for what it is worth. And as this edition of Mitford is intended as a text-book for the students in the law school of the Columbian University, established at Washington under a charter from the Congress of the United States, where students from all the States are instructed, the necessity of a book on equity plead- ing adapted to the practice of all the States, is obvious. This edition of Mitford is intended as the counter- part of the edition of Stephen on Common Law Plead- ing, which the present editor prepared, several years ago, for the students of the Columbian University Law School, as a guide on pleading in both Federal and State courts. The Code pleadings, if that which has no logical principles can be called pleadings, are ignored, as not coming within the scope of a treatise of universal application in the comprehensiveness of its principles and rules. Such being the national view of our twofold juris- prudence, which has been taken in the preparation of the editions of Stephen on Common Law Pleading^ and Mitford on Equity Pleading, it is well to consider the respective characters of common law and of equity as schemes of administrative justice ; because it is the jurisprudence of a country upon which all its institu- tions rest for preservation. In the Introduction to Stephen on Common Law Pleading, by the present editor, the difference between the common law of England and the civil law of ancient Rome is presented in their opposite political principles, and the different institutions that are cognate with them respectively.. Free government is shown to be the out- growth of the common law of England ; and despotic INTRODUCTION, 3 government, as in the nations of continental Europe, of the civil law, with its doctrine of imperial Cgesarism. For nationality is not more determined by peculiarity of race than it is by the character of the laws and insti- tutions under which a people are educated and trained in the affairs of life. Such being the case, it is im- portant to consider with which of the two great systems of law equity is most akin. Equity has its root in the Roman civil law. The first chancellors, for ages, in England, were ecclesiastics, trained, as to legal ideas, in the civil law. And when chancellors, trained in the common law, came to admin- ister equity, the common law judges strove to prevent encroachments by equity upon their jurisdiction, as much because of its political associations, as because of its peculiar principles and modes of judicial relief In order to show its connection with the civil law, and also, because of the practical importance of the work as authority on equity pleading, the present editor has edited and published the Forum Romanum of Chief Baron Gilbert as the forerunner of -this edition of Mit- ford. There, the connection between the equity and the civil law procedures is made manifest. In itself, as embracing within its jurisdiction only certain classes of cases, none of which have any relation to personal liberty, equity has no bearing upon govern- ment. But as there is a strong inclination in this coun- tiy to abolish the distinction between law and equity, and to introduce equity procedure as common to both law and equity, it may not be unprofitable to consider the influence of such innovation upon administrative justice, and also upon free institutions. It is urged, as one reason why the pleadings by bill and answer, or statements, in a plain way, of their case, 4 INTRODUCTION. by both parties, should be used as a common procedure for all cases, that it is so simple. This reason is founded upon ignorance of both common law and equity plead- ing. If any one, capable of appreciating the subject, will study the dissertation on pleading in equity pre- fixed to this edition of Mitford, he will at once perceive the extreme difficulties inherent in equity procedure, because of the exigencies of justice which must occur in making defenses in complicated equity causes, which involve so many and such various equities. Then, let him turn to Stephen on Common Law Pleading, and then to the Maryland Simplified Pleading, and strive to conceive how equity pleading is to be made as sim- ple and, at the same time, effective in practice. It is as impossible to do so as to bring the problems of the higher mathematics within the rules and forms of com- mon arithmetic. Equity pleading was, at first, precisely what these tamperers with what they do not understand wish to introduce as a scheme of pleading for both law and equity causes, in a common jurisdiction for the two classes of causes. Equity pleading was, in the begin- ning, a simple informal statement by each party of his case. But as equities were gradually multiplied, by ju- dicial administration, into a comprehensive system of jurisprudence, a scheme of procedure was necessarily evolved in conducting the causes to a decision upon their merits. And thus equity pleading, as set forth by Mitford, is, in substance, the indispensable procedure, and that, too, with many of its subtleties, which the act- ual experience of courts, by a tentative process in con- ducting causes, have found necessary to bring them to a decision on their merits. Those, therefore, who wish to introduce one procedure for both law and equity causes, must learn that equity causes will require then, INTRODUCTION. 5 as now, the scheme of pleading set forth in this volume,' and law causes will be put in utter confusion. The States which have made the experiment present the pitiable spectacle of courts " in wandering mazes lost," knowing not, at times, what to do in order to conduct causes to a decision upon their merits. In a case of trade-mark, in the Superior Court of New York (2 Sandf R. 619), Judge Duer, in his perplexity, remarked : " By our present practice, I cannot direct an action at law, to enable the complainants to establish their right ; for, if I rightly understand the provisions of the Code, the present suit is such an action, and in reality, every complaint, whatever the nature of the facts set forth, or the relief sought, is at once a declaration at law and a bill in equity." And the volumes of cases on Code Practice multiply by scores, and at the same time settle nothing like a fixed procedure. Even England has taken a step towards the mire of mixed law and equity, by the " Supreme Court of Judicature Act, 1873," which was to have gone into operation on the second day of November, 1873, but was postponed to the first day of November, 1875 ; and on that day the new judicial sys- tem was inaugurated in Westminster Hall by Lord Chancellor Cairns and the judges, A book, " The Law and Practice of the Supreme Court of Judicature, by Wyne E, Baxter," had been already published, to pre- pare the way for the execution of the most important statute ever passed by the British parliament in relation to administrative justice. This statute, while seemingly radical, to satisfy the innovating spirit of the times, is drawn with such con- servative prevision, that, with a bench and a bar trained in the separate systems of law and equity, justifce may, perhaps, still be kept on the old paths of administration, 6 INTRODUCTION. with different procedures, as of old, used respectively for the special classes of cases belonging to the separate jurisdictions. That all changes in administrative justice have more or less influence on government, is obvious to every one familiar with the history of European society in relation to constitutional law. The English constitution receives its life-blood from the common law, and is but the polity ical organic form of its free spirit. All the guards of protection to person and to property are found in the law and its peculiar procedure. The English common law judges, therefore, and especially Coke, have been, and particularly in times of commotion, stern supporters of common law principles and processes. Any change in these long-tried processes must have bearing on gov- ernment, and that for evil. So profoundly had a comprehensive study of Euro- pean history impressed the present editor with the polit- ical bearing of law reform, that, as a commissioner ap- pointed by the Legislature of Maryland to simplify the pleading and practice in both the courts of law and of equity of the State, in his report made in January, 1855, he brought the fact before the Legislature as a reason for retaining the common law procedure, with its ex- crescences removed. " The agitation of law reform in- volves (says the Report) the very same conflict in this country which for centuries has been waged in Europe between Teutonic institutions and the institutions and laws of Imperial Rome. Everywhere an effbrt is mak- ing to introduce into practice the procedure of the civil law, and to aboHsh the distinctive character of the pro- cedure of the common law." The Legislature adopted the views of the report ; and hence the Maryland sim- plified pleading, retaining the distinctive features of the INTRODUCTION. 7 common law pleading, became the law of the State, And equity pleading was retained unaltered ; as in an- other elaborate report it was shown that equity plead- ing was as simple as the exigencies of administrative justice would allow. So that law and equity were re- tained as mutual, but separate, systems of organic juris- prudence, administered by the same judges, sitting on both the equity side and the law side of the court, according to the nature of the case before them, and gradually adjusting law and equity more and more into co-operative relief in administrative justice. Though the jurisdiction of equity is widening day by day (more, however, by increase of new subjects of its jurisdiction than by encroachment on the province of common law), until it would seem destined to extin- guish law with its peculiar procedure as a distinct or- ganism, yet it may be confined to its peculiar classes of cases in the future, as in the past, if the evils of the amalgamation of law and equity can be made manifest. The widening scope of equity, at the expense of com- mon law jurisdiction, is evinced particularly in a pro- vision in the " Supreme Court of Judicature Act, 1873," just mentioned, which declares that wherever there is any conflict or variance between the rules of equity and those of common law with reference to the same mat- ter, the rules of equity shall prevail. This provision but embodies the principle which the common law judges have for ages adopted to ameHorate the too rigid rules of the common law. The doctrine of mortgages is one among many of the doctrines of equity which the com- mon law courts have so wisely adopted, in their co-op- eration with equity courts, to make the two forms of jurisprudence a perfect scheme of administrative justice. And courts of law, by virtue of legislation, have the 8 INTRODUCTION. power to examine the parties to suits, and thereby save suitors at law the necessity to file a bill of discovery in equity to furnish evidence in the case at law. And by many other adjustments, the most obvious objections-to separation between law and equity have been removed. There is one evil, of ruinous consequences to admin- istrative justice, which the abolition of common law pleading with its issues, separating fact from law be- cause of the trial of facts by jury, must produce. The law of evidence has been developed by the courts of law in trials by jury. It is an offshoot from common law pleading. The issues of fact indicate, by what is affirmed and denied in the issues, the nature of the evi- dence needed to prove them. And it is by their pro- bative relations to the issues that the admissibility of facts adduced as evidence is determined by the courts. From this simple probative indication by the issues, the courts of law have evolved, and law writers have re- duced to a system, the rules of evidence founded on what are called the natural principles of evidence. And these, with some rules founded on what Starkie, in his able work, illogically calls excluding principles, consti- tute the whole law of evidence. The law of evidence, thus built up by courts of law, has been received by the courts of equity. The civil law has no definite law of evidence, because its pleadings do not form issues sep- arating facts from law to be tried by a jury. And the courts of equity would, for the same reason, not have a definite law of evidence, if the common law courts had not furnished them with one. On the trial of an issue of fact, separated from law, questions of evidence arise for separate and special consideration by the judges, whose province it is to determine all such questions.. And it must be conceded that the procedure which has INTRODUCTION. g originated the law of evidence is the best calculated to preserve it as an important element in administrative justice, in its present systematic form. It is well for students of law to understand the rela- tion of writers on law to the decisions of courts in form- ing the jurisprudence of a country, and in what sense such writers are authority in courts upon questions of law. The jurisprudence of every country is developed by the courts in administering justice. Their decisions embody the principles of justice which are applicable to the cases brought before them for adjudication by parties who cannot adjust them themselves. And as judicial administration requires an established proced- ure, to make justice speedy and certain, and to present the cases in a clear and concise manner, so that the court may know what is in controversy, the courts, as incidental to their adjudications, have, from time to time, decided upon the sufficiency of the statement of complaints, and also of defenses. But this judicial de- velopment of law, contained in the cases decided and reported in a long series of volumes, leaves it a mere shapeless and unwieldy mass, both as to its principles and its procedure. Therefore a class of lawyers, many of them eminent practitioners and judges, always arise by the side of the administration of justice, who, by theij writings, reduce the law embodied in the decisions of courts to a systematic form, available for practical guidance. Withqut these great writers, law would be all confusion. The English law, therefore, became a science by a process of generalization from usages and decisions of courts, eflFected by the writings of lawyers. And great writers, not only on the principles of juris- prudence contained in the decisions, but also on pro- lO INTRODUCTION. cedure, arise to reduce the decisions of courts on ques- tions of pleading to a logical and coherent system. Hence was produced the great work of Mitford on Equity Pleading. Courts are of only a little more, if any, importance in the administration of justice than these great -text writers are as guides, not only to students and lawyers, but also to the judges. That two works, Stephen on Common Law Pleading, and Mitford on Equity Pleading, written by two of the greatest juridical thinkers in the history of jurisprudence, after being sure guides for so long a period in England and in this country, should still be followed, seems to be the decision of experience. The works of great law writers are recognized authority as critical exponents of the principles which have been established by judicial decisions. Courts are- not, by any juridical rule, obliged to follow the opinion of any text writer, as they are a judicial precedent, but only to yield assent to it as a true exposition of the law. The excellence ascribed, in the preceding remarks, to equity pleading is said of it solely as applied to suits of hostile litigation. There is a large class of suits, which may be called administrative, to which such pleading, as well as the regular practice in equity, is not appropriate, in the majority of cases ; yet some such cases do require to be conducted under the ordinary procedure. The administrative jurisdiction of the Court of Chancery is that branch of the jurisdiction which has to adjust and administer doubtful or recognized rights, rather than to decide between directly hostile litigants. It ascertains, secures and applies property for the bene- fit of its rightful owners, according to their respective rights, which may or may not have already been decided in hostile litigation between adverse claimants. On the INTRODUCTION. 1 1 one hand, whatever property ought of right to be dealt with in any particular case is ascertained, got in and permanently secured under the orders of the court; while, on the other, all claims upon and all interests in that property, whether contested or not (if made under and not adverse to the administration), are ascertained and declared, and put in train for liquidation. Imme- diate and vested demands are at once satisfied ; future and contingent claims, and continuing interests of what- ever duration, are provided for and administered during the whole of their continuance : and ultimately, on the determination of all charges and contingencies, the en- tire matter is completely wound up and settled. Such is the administrative jurisdiction of the Court of Chan- cery, as distinguished from the ordinary contentious ju- risdiction under which litigated rights are, once for all, adjudged and settled. It must not, however, be supposed that the Court of Chancery, in its administrative jurisdiction, exercises any single branch only of its authority. It is the appli- cation by the court of certain parts of its peculiar juris- diction and machinery, as, in particular, its jurisdiction in the matter of discovery, accounts, inquiries, and other proceedings in chambers, to the enforcement and exe- cution of a trust, or of some other similar relation and liability, as, for instance, the relation and liability of an executor to the creditors of a testator, and to his dev- isees or legatees, so as to work out the whole matter in all its ramifications and details. (See Haddan's Equity Jurisdiction, p. 6.) To this class of cases belong especially proceedings to sell the real estate of infants, when it is to their in- terest and advantage, or to mortgage the estate for the purpose of raising money to pay off any charges or liens 12 INTRODUCTION. upon it, or to demise it, or to exchange it — a jurisdiction which courts of equity have more or less everywhere acquired by legislation in aid of their general guardian- ship over infants and their property. But the most important of this class of cases is the administration of a deceased person's assets. Accord- ing to the ancient and regular course of the Court of Chancery, a decree for accounts, with a view to the ad- ministration of the estate of a deceased person, against his executor or administrator, could be obtained only in a suit regularly instituted on a bill filed, answer put in, and case admitted or proved by evidence in due form after the cause was at issue ; just as in the case of a decree for any other purpose in the most hostile or complicated case. And by the ancient procedure, the same formal course is required for the administration of trusts, the next most important cases belonging to the administrative jurisdiction of chancery. In mere administrative cases, courts of equity should have authority to use a summary proceeding by petition and affidavits, instead of proceeding by a regular suit in equity. And this is the course that reform in equity procedure is taking both in England and in this country. The British Commissioners, in their report on the process, practice, and pleadings in chancery, made in 1852, say: "But the las^t and greatest change in chanceiy procedure is that intro- duced by the General Orders of Lord Cottenham, of April, 1850. By these, in a great number of special cases, without any formal pleadings at all, by the filing of what is called a claim, heard summarily on affi- davits, and, if necessary, on counter affidavits, the court is enabled at once to pronounce a decree between the parties. Besides the specified cases, the court is au- INTRODUCTION. 1 3 thorized, in every case in which it thinks fit, to permit a claim to be filed. The extent to which this new system has been used is shown by the number of claims filed. The order came into operation on the 22d of May, 1850, between which time and the 12th of January, 1852, 1,969 claims have been filed, in almost every variety of case ; upon these, 863 decrees or orders have been drawn up, and 245 stand in the list for hearing. Of the remaining number, by far the greater proportion have been disposed of by com- promise or otherwise. Some few are not yet set down to be heard. In a small number of the cases heard, the court has felt itself unable to deal satisfactorily with the matter by way of claim, and has left the par- ties to proceed by bill." " We are of opinion that the proper progress of chancery reform is in the same direction, that is to say,. to substitute, in every case which admits of it, the shortest and most summary process, with the least amount of preliminary written pleadings ; and to bring the parties, by themselves or their counsel, to state their cases with as little delay as possible to the tribu- nal which has to decide." The procedure by claim or petition for the admin- istration of the estate of a deceased person was intro- duced into English chancery practice by the General Orders of Lord Cottenham, in 1850. But, in 1852, by Act of Parliament, 15 & 16 Vict. c. 86, a simple "summons" in the chambers of the judge was sub- stituted for the machinery of bill and answer ; and authority was given to the judge, on this summons, to make the same " usual administration decree" which, in like circumstances, the court might have made in a suit regularly instituted by bill. 14 INTRODUCTION. But all these changes proved unsatisfactory ; and Parliament, in 1873, passed, as a remedy for all evils in administrative justice, the " Supreme Court of Judica- ture Act," already noticed. It remains for the practice of the judicial system organized under it to test its efficacy. As, in the United States, both in the Federal courts and in the courts of some of the States, the jurisdic- tion of equity is still separate from that of law, regular equity procedure is as important, as a means of admin- istering equity, as in past times. And as it appears from the report of the British Commissioners in 1852, already noticed, that the courts, in cases which seemed, at first view, to admit of the summary proceeding by clatjn, found themselves unable to deal satisfactorily with the matter in controversy, and had to leave the parties to proceed by bill, the excellence of the long- tried equity procedure, in all cases of hostile litigation, and in even administrative cases involving various and numerous partieS; is fully vindicated. And there is nothing which discloses so accurately the minute distinctions and refinements of equity doc- trines met with in actual practice, as a critical study of the general framework and nice structural adaptations of the various forms in regular equity procedure These forms embody equity in its practical applica- tions to the exigencies of justice. It was out of the exigencies of practice that they arose ; and^ to throw aside such admirable guides in working out the details of practice, and leaving lawyers and judges to their own wits, must lead to a most inadequate administra- tion of justice. INTRODUCTION. 1 5 Note. — As there is an epidemic hostility against law and equity, as separate systems, it is well to refer to what is said by Mr. Austin, in " The Province of Jurisprudence Determined," on the subject, as he is recognized as high authority for the fusion of law and equity into one system of juris- prudence : " Having sketched (says he) an historical outline of the jus pratorium (which is intimately connected with the jus gentium, as this last was understood by the earlier Roman lawyers), we shall briefly compare the equity dispensed by the Roman praetors with the equity administered by the English chancellors ; from which brief comparison, it will amply appear, that the distinction of positive law into law and equity (or jus civile zxid jus jiratoriutn) arose in the Roman, and also in the English nation, from circumstances purely anomalous, or peculiar to the particular community ; and from which brief cotnparison it will also amply appear that the distinction is utterly senseless when tried by general principles, and is one prolific source of the needless and vicious complexness which disgraces the systems of jurisprudence wherein the distinction obtains." This criticism by Mr. Austin is itself "utterly senseless," when tried by the fact that the distinction between law and equity is one in a scheme of practical justice adapted to two different classes of causes of litigation, which diflFer, not in their relations to principles of justice, but in relation to the procedures that are best for applying those principles to the two different classes of causes. The principles of justice are the same at law and in equity, but are applied by different procedures, because of the different practical exigencies of justice, which arise from the inherent and unalterable differences in suits at law and suits in equity. Mr. Austin was not competent to judge of the wisdom of the distinctions in practical justice. As a practitioner in a court of justice, whether of law or equity, his speculative jurisprudence would place him in a like rank of incom- petents with pettifoggers. If, like Bacon, he could fully appreciate the practical in human affairs, and especially in jurisprudence, he would have written with more wisdom, and less assumption of superiority. OF PARTIES TO SUITS IN EQUITY. BY SAMUEL TYLER. In order to give effect to the comprehensive remedial justice, administered by a court of equity, every person interested either directly or collaterally in the matter in controversy, and whether his interest ' is exclusive and absolute, or merely conditional, can, by its commodious scheme of procedure, be a party to a suit, in order that the decision may provide for the rights of all persons interested. This makes the doc- trine of parties to a suit in equity very complex and difficult. (Story's Equi. Juspr. c. i, sec. 28.) All persons interested in the matter of the suit should be parties. For the rights of no one, however remote or conditional or direct, can be affected by a decree in equity, unless he be a party to the suit, or claims under a party to the suit ; and his rights will, unless he be a party or claims under a party, remain precisely as if no suit had been instituted. Therefore, who should be parties to a suit in equity, is a question of the first importance, in order, when thq final decree is passed, the rights of all persons interested in the matter of the suit will be settled, and all further litiga- tion prevented, and the performance of the decree of the court be perfectly safe to those who are compelled to obey it. (Cooper's Equity Pleading, 33.) And it is a question of importance who should not be parties to a suit in equity. (16) OF PARTIES TO SUITS IN EQUITY. 17 There are two classes of parties, complainants and defendants, in suits in equity, as there are in suits at law. The complainants are the persons who pray relief in the bill. The defendants are the persons against whom process is prayed. It is not sufficient that a person be mentioned as a defendant, process must be actually prayed against him. (i Peere Wm. 592, anno 171 7; 2 Dick. 707, anno 1788.) If a de- fendant is within the jurisdiction of the court, the prayer must be for immediate process ; if he is not within the jurisdiction, the prayer must be for process when he comes within the jurisdiction. Before a decree is made against a person, ne must be served with process (5 Bro. P. C. 498, anno 171 7), of subpoena, or other process which may prevail in some coutts. It is not necessary in suits in equity, as it is in suits at law, that all the complainants shall have one in- terest, and all the defendants an opposite one. It is true that all persons having the same interest should stand on the same side of the suit in equity. But if any such refuse to appear as complainants, they may be made defendants. (2 Bland, 264, 292.) Often, so far as the right to sue is concerned, the defendants could have been complainants, and the complainants could have been made defendants ; as, for example, in a suit for partition of land between joint owners. Whether a party is complainant or defendant is determined by the side of the suit on which he stands, and not by the rights he has in the controversy. Sometimes the rights of some of the defendants may be identical with those of the complainants. Therefore, there is not always a conflict of rights between complainants and defend- ants in equity, as is always the case between plaintiffs •3 1 8 OF PARTIES TO SUITS IN EQUITY. and defendants in law. In equity it is only requisite that the interests of the complainants be consistent; and it is immaterial that the defendants are in conflict with each other, or that the claims of some of them are identical with those of the complainant. But it should be observed that, although a conflict of inter- ests among the defendants is no objection to a suit in equity, yet it does not follow that the court "will ad- judicate and settle their conflicting claims. The court will do so only when it is necessary to settle their conflicting claims in order to determine the rights of the complainants. (Adams' Equity, 608, 5 Am. ed.) If there be no' necessity for it involved in the settlement of the complainant's claim, the court of equity will not adjudicate between codefendants. If the claims of the complainants are inconsistent, or if any of the complainants have no claim, the mis- joinder will be fatal to the suit. It is not, however, necessary, in order to join in a bill in equity, that the complainants should have a joint interest. Uncon- nected parties having a common interest in the matter in controversy may unite in the same bill ; as where there is a common fund for distribution, parties having separate claims to portions of the fund can be joined. Cburts of equity exercise a judicial discretion over the matter of parties to a suit. It is a question of policy as well as of jurisdiction. As early as 1812, the Supreme Court of the Utjited States, because of the limited jurisdiction territorially of the Circuit Courts, they not being competent to proceed against any per- son not residing within the district for which the Cir- cuit Court was held, though residing within the United States, declared that it would certainly justify them in dispensing with parties merely formal. And that, per- OF PARTIES TO SUITS IN EQUITY. ig haps, when the real merits of the cause may be deter- mined without essentially affecting the interests of ab- sent persons, it may be the duty of the court to decree as between the parties before them. But where the parties are so essential to ■ the merits of the question, and may be so much affected by the decree that the court cannot proceed to a final decision of the cause till they are parties, the court cannot decree. (7 Cranch R. 98.) And in 1825, in a case in 10 Wheaton's Re- ports (166, 167), the court said, to an objection for want of parties, " This objection does not affect the ju- risdiction, but addresses itself to the policy of the court. Courts of equity require that all parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule; however, is framed by the court itself, and is sub- ject to its discretion. It is not like the description of parties, an inflexible rule, a failure to observe which turns the party out of court, because it has no jurisdic- tion over his case ; but being introduced by the court itself for the purposes of justice, it is susceptible of modification for the promotion of those purposes." In 1827, in a case in 12 Wheaton's Reports, 98, where an indispensable party was not before the court, the court said, " We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdic- tion ; we put it on the ground that no court can adju- dicate directly upon a person's right, without the party being either actually or constructively before the court." And in a case in 1833 (7 Peters R. 263), the court said, " It is the settled practice of the courts of the United States, if the case can be decided on its merits 20 OF PARTIES TO SUITS IN EQUITY. between those who are regularly before them, to decree as between them. Although other persons not within their jurisdiction may be collaterally or incidentally concerned, who must have been made parties had thby been amenable to its process, this circumstance shall not expel others who have a constitutional right to submit their case to a court of the United States, pro- vided the decree may be made without affecting those interests." In 1839 ^^ ^ct of Congress was passed relative to the non-joinder of parties to a suit in equity who can- not be reached by process of the court, which was only legislative affirmance of the rules which had been es- tablished by the decisions of the Supreme Court. This construction was given to the act, in 1855, in a case (17 Howard .R. 141), by the Supreme Court, in which the court said, " A Circuit Court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far in- volves or depends upon the rights of an absent person that complete and final justice cannot be done between , the parties to the suit without affecting those rights." These decisions recognize a distinction, as to the joinder of parties in a suit in equity, between nominal, necessary or proper, and indispensable parties. A nom- inal party is one, joined for sake of conformity in the bill, having no interest, legal or equitable, to be affected by the suit. A necessary party is one who has an in- terest in the matter in controversy, and should be made a party to enable the court to do complete jus- tice by adjusting all the rights involved, and must be made a party if within reach of the process of the court ; still, if his interest is separate from those before the court he is not an indispensable party. An indis- OF PARTIES TO SUITS IN EQUITY. 21 pensable party is one where a decree cannot be made without affecting his interest. (See i McAllister R. 31, 37-) Where persons interested are out of the jurisdiction of the court, it is sufficient to fetate the fact in the bill, and to pray that process may issue on their return ; and if the statement be proved at the hearing, their appear- ance will be dispensed with. But whether the court can decree in their absence, depends on the nature of their interest, and the manner in which it will be affected by the decree. If they are to be active in per- forming the decree, or if they have rights entirely dis- tinct from those of the other parties, the court cannot, in their absence, decree against them. But if they are only passive objects of the decree, or their rights are merely incidental to those of the parties before the court, a complete adjudication can be made in their absence. The rules prescribed by the Supreme Court of the United States, in regard to parties in a suit in equity will be found in the Appendix to this volume, contain- ing " Rules of Practice for the Courts of Equity of the United States." In the several States in which there are courts of equity, there are statutory regulations making proceed- ings in courts of equity effectual against parties out of the reach of their process, bringing them constructively before the court by means of advertisement, in news- papers, of the character and pendency of the suit. As to making absent parties defendants by publication, see 3 Dana, 306; 5 J. J. Marsh. 513. There must, to make defendants, be actual or constructive service of process. Without prayer and service of process, the mere naming of persons as defendants does not make them such. (2 A. K. Marsh. 497 ; 3 Dana, 306.) 22 OF PARTIES TO SUITS IN EQUITY. Courts of equity, in applying the general principle in regard to parties to a suit, never allow it to produce an inconvenience, in the adjustment of rights, which can safely be avoided. With this view, they have estab- lished a rule founded upon the doctrine of representa- tion. It sometimes happens that compliance with the principle which requires the joinder in a suit in equity of all parties interested in the matter in controversy is practically impossible, because the persons interested are too indefinite or too numerous to be individually joined in the suit In such case, the principle in its application is modified upon the doctrine of representa- tion, so that one or more members of a class may sue or be sued on behalf of the whole, provided the interest of every absent member in the claim made or resisted ■ is identical with that of those who are personally before the court, (i Danl. Ch. Prac. 191, 4th Am. ed. ; Adams' Equity, 621, 5th Am. ed.) The most ordinary instances of representation are in suits by creditors or legatees. For as a single cred- itor or legatee may sue for his demand out of the per- sonal assets, without bringing the others before the court, it is rather matter of convenience than of indul- gence to permit a suit by a few on behalf of all ; and it tends to prevent several suits by several creditors or legatees, which would be inconvenient in the adminis- tration and burdensome on the fund administered. The rule, however, is not confined to cases of this class, but, has been extended to other cases where several persons have distinct rights on a common fund, as creditors under a trust deed, residuary legatees, or next of kin ; and in such cases, if the parties are very numer- ous, one has been allowed to sue on behalf of all, al- though he could have sued for his separate share with- OF PARTIES TO SUITS IN EQUITY. 23 out bringing the others before the court. The ground for this indulgence is that if all were made actual par- ties, the suit would be liable to frequent abatements, and it would be practically impossible to bring it to a hearing. The court, however, in such cases will not proceed to a decree until, it is satisfied that the interests of all are fairly represented, and that there would be a preponderating inconvenience in bringing them indi- vidually before the court. The same principle applies where there is a common right against the defendants. As where the associates or shareholders of a private association are numerous, a bill may be filed by one of such associates on behalf of himself and the others against the trustees of such asso- ciation to compel the execution of the trust, and for an account and distribution of the funds and property of the association among the shareholders. It is not nec- essary that all the associates or shareholders should unite in a bill for that purpose. But the other associ- ates or shareholders must be made parties defendant, unless the suit expressly profess to be as well in their behalf as that of the complainants. Upon the same principle on which plaintifiFs are permitted to sue on behalf of others as well as them- selves, suits may be allowed against persons as defend- ants on behalf of themselves and others. But the rights of all must be fairly before the court. Where all the defendants have but one right amongst them, founded upon the same circumstances, a few may be sued, be- cause the rights of all would be thereby sufficiently rep- resented, and the question as to all satisfactorily tried. But where there are several different rights under which the claim of the plaintiff may be resisted, there must be a corresponding number of persons sued, who may 24 OF PARTIES TO SUITS IN EQUITY. maintain all the several defenses. The bill must state that those sued are sued as well on behalf of all the others as themselves. (Calvert on Parties, ^d ed. pp. 44-48.) The rule requiring the joinder of parties for the pro- tection of their interests is still further modified in its application to defendants. As a tenant in tail might at any moment destroy the remainders, and make him- self master of the entire estate, he alone is assumed to represent the inheritance, and to offer satisfactory de- fense of all subsequent interests. " A court of equity (says Lord Eldon, 9 Ves. "65, anno 1803) in many cases considers the tenant in tail as having the whole estate vested in him, at least for the purposes of suit ; and for these purposes does not look beyond the estate tail in a suit aiming by the decree to bind the right to the land." And as early as anno 1769 (Ambl. 564) Lord Camden said : " In the foreclosure of mortgages, the first tenant in tail is sufficient ; he sustains the interests of everybody ; those in remainder were considered as cyphers." Therefore, only the person owning the first inheritance need be a party to a suit, as he represents all persons who are entitled to subsequent estates. And the principle of representation is extended to a tenant for. life, where there is no person in existence entitled to an estate of inheritance. In such case it is sufficient to sue the existing tenant for life. In i Sch. & Lef 407, 408, anno 1804, Lord Redesdale said: " It is sufficient to bring before the court the first tenant in tail in being ; and if there be no tenant in tail in being, the first person entitled to the inheritance ; and if no such person, then the tenant for life ; and courts of equity constantly act, on these parties being before the court, in everything relating to the whole estate. * * * OF PARTIES TO SUITS IN EQUITY. 25 • It has been repeatedly determined that, if there be ten- ant for life, remainder to his first son in tail, remainder over, and he is brought before the court before he has issue, the contingent remaindermen are barred ; this is now considered the settled rule of courts of equity, and of necessity." (See i Eq. Ca. Ab. 400, anno 1 706 ; 2 Vem. 527, anno 1705.) The same modification of the principle requiring all persons in interest to be made parties, is extended to legatees and next of kin, in suits for a debt or leg- acy against the personal representative. In such cases, like the general creditors, who cannot be made parties, they are interested that the assets be not diminished in sufficiency to pay their claims, but the personal repre- sentative represents the personal estate, and they have no interest in the object of the suit, and therefore can- not be made parties. If, however, they are not com- mon legatees, payable by the executor out of the gen- eral fund, but are specific owners of the property itself, they should be made parties. A residuaiy legatee is not a necessary party to a suit seeking to charge the general assets. (2 How. U. S. 575.) Having considered the general principle requiring all persons interested in a suit in equity to be made parties, it becomes necessary to inquire what is meant by interest in a suit in equity. ' Because, unless the na- ture of the interest is definitely comprehended, the pleader cannot know who are really interested accord- ing to the meaning of the principle. And there is noth- ing which has been written upon the subject, and noth- ing, perhaps, which will be written upon it, that can discuss the matter more definitely and more upon judi- cial authority, than the treatment of the topic by Cal- vert, in the first chapter of his " Treatise upon the Law 26 OF PARTIES TO SUITS IN EQUITY. • respecting Parties to Suits in Equity," embraced in the following extracts from the first edition of the treatise. " Courts of equity adopt two leading principles for determining the proper parties to a suit. One of them is a principle admitted in all courts upon questions affecting the suitor's person and liberty, as well as his property, namely, that the rights of no man shall be de- cided in a court of justice unless he be present. " The second is a principle v/hich, in this country, is peculiar to courts of equity, namely, that when a decis- ion is made upon any particular subject-matter, it shall provide for the rights of all persons whose interests are immediately connected with it. * * * * " The combination of the two principles which have been mentioned has given rise to the general rule upon the proper parties to a suit in equity. This rule has been laid down by different writers and judges in very different expressions. Lord Redesdale says, ' For this T^MT^osQ, all perso7is materially interested \n the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice by decid- ing upon and settling the rights of all persons inter- ested, and that the orders of the court may be safely executed by those who are compelled to obey them, and future litigation may be prevented.' Lord Hard- wicke (Poone v. Clark, 2 Atk. 515, anno 1742) says, ' The general rule is, that if you draw the jurisdiction out of a court of law, you must have all persons parties before this court who will be necessary to make the determination complete, and quiet the question.' Lord Thurlow says (Anon, i Ves. Jr. 29, anno, 1789), 'All parties having an apparent right must be brought into court before the court will do anything which may OF PARTIES TO SUITS IN EQUITY. 2"] affect their right' Sir William Grant says, 'As far as it is possible, the court endeavors to make a complete de- cree that shall embrace the whole subject, and deter- mine upon all parties interested in the estate! (Palk v. Clinton, 12 Ves. 58, anno 1806.) Lord Eldon says, ' The strict rule is, that all persons materially i7iterestcd 171 the subject of the suit, however numerous, ought to be parties, that there may be a complete decree be- tween all parties having material interests. (Cockburn V. Thompson, 16 Ves. 325, anno 1809.) Sir WilHam Grant again says (Wilkins v. Fry, i Mer. 262, anno 1 8 16), 'In equity it is sufficient that all parties inter- ested in the subject of the suit should be before the court, either in the shape of plaintiffs or defendants.' " The object of quoting so many authorities for the general rule is not merely to show how universally it has been acknowledged, but still more to call attention to the vague language in which it has been expressed by very logical reasoners. Lord Redesdale has quali- fied the rule which he laid down, in these words (Red. PI. 170) : ' In many cases, the expression that all persons interested in the subject must be parties to a suit is not to be understood as extending to all persons who may be conseqtientially interested.' Yet if Lord Redesdale's rule, even in company with this qualification, were to be adopted as a guide for practice, it would frequently lead to inferences which are at variance with decisions acknowledged to be correct. For instance, a remainder-man in fee after an estate tail is (Cockburn v. Thompson, 16 Ves. 326) not to be made a party to a suit in which the title to the estate is determined, though one who claims an interest only for life, antecedent to the estate tail, must be made a party. A person who possesses either of 28 OF PARTIES TO SUITS IN EQUITY. these two characters is ' a person interested,' and ' materially interested ; ' nor is there any meaning in the term ' consequentially,' which applies to the former, and not to the latter. " If a creditor (Lawson v. Baker, i Bro. C. C. 302,, anno 1 783) sues for payment of his debt, it is clear that the residuary legatees are interested in resisting the claim ; for if the resistance to the debt is success- ful, their shares of the residue will be increased. Yet it is not necessary to join them as parties with the executors. A residuary legatee, or in case no residuary legatee is appointed, a next of kin appears to have precisely the same degree of interest in opposing a suit to establish a legacy, as an heir at law has in opposing a suit to establish a devise ; the interest of the one is no more ' consequential ' than the interest of the other. Yet the heir at law is a necessary party in One suit ; and the next of kin, or residuary legatee, is not a necessary party in the other. " Such being the indefinite character of the rule, according to the terms in which it has been laid down by high authority, it might be at first inferred that the nature of the subject would not admit of any more precise expression ; and the same inference might follow from a merely cursory observation of the de- cided cases. It must, however, be observed that the object at which judges have aimed, in giving their judgments, has been to lay down the rule with suffi- cient accuracy for the case immediately before them, and that they have not attempted to pronounce a general rule applicable to all cases. They might have had in their minds a precise idea of the general prin- ciple, although they did not express it precisely. An attempt will now be made to ascertain the precise OF PARTIES TO SUITS IN EQUITY. 2g nature of that principle, and to express the rule in such language as may be sufficiently definite to serve as a guide upon all occasions. " Lords Eldon and Thurlow and Sir William Grant mention as necessary parties all persons interested in the subject of suit. The expression 'subject of suit' may mean one of two things, either the fund or estate respecting which the question at issue has arisen, or else that question itself. For instance, in a foreclosure suit, it may mean either, in the first sense, the mort- gage debt or mortgaged premises ; or else, in the second sense, the question whether a foreclosure ought or ought not to take place. In the passage which has been quoted from the case of Palk v. Clinton, it is clear that Sir W. Grant used it in the first sense. Lord Eldon, in the case of Cockbum v. Thompson (i6 Ves. 326, anno 1808) appears to have used the words in the same sense ; for, in further explanation of the general rule, he says : ' Accordingly, there are several well-known cases of exception ; and, without going through with them all, I will mention one in- stance of not applying it to persons having valuable interests in real estate ; namely, where it has been held sufficient to bring before the court the first per- son having an estate of inheritance ; though it cannot be denied that persons having present immediate valuable interests in the same real estate, may become most deeply affected by v/hat is done here in their absence,' The sense in which Lord Thurlow used the term cannot be ascertained from Mr. Vesey's veiy brief (i Ves. Jr. 29, anno 1789) report of the anony- mous case which has been quoted. " If the words ' subject of suit ' were taken in that very extensive meaning in which Lord Eldon and 30 OF PARTIES TO SUITS IN EQUITY. Sir W. Grant used them, the general rule, as laid down by them, would be inconsistent with several decisions which are firmly established. For instance, if there is a contract to sell an estate, which the vendor claims under a will, the purchaser filing his bill for specific performance of the contract, need not make the heir a party if he does not pray 'for proof of the will ; but if he does, he must make him a party. Yet the interest of the heir in the estate, that is, according to Lord El- don's and Sir W. Grant's use of the term, in the siibject of the suit, cannot be at all varied by the insertion of such a prayer. The executor of a mortgagor has neither greater nor less interest in the estate mort- gaged, whether the prayer of the mortgagee's bill is for a sale or for a foreclosure ; yet if it is only for a fore- closure, he is not necessarily a party ; but he is, if the prayer is for a sale. When a lessee of tithes institutes a suit respecting them, the lessor is not a requisite party, unless the prayer is in part for the establishment of the right to tithes ; although he is, of course, equally interested in the tithes themselves, whether such a prayer is or is not introduced into the bill. " Many cases may be mentioned which show that according to general practice, a mere interest in the subject of suit, as the term was used by Lord Eldon and Sir W. Grant in the passages quoted above, is not sufficient to render a person a necessary party. The cases of Saville v. Tancred and Franco v. Franco are inserted here as examples of such cases. " Saville (i Ves. loi, anno 1 748), pawnee of a strong box containing jewels which belonged to the Duke of Devonshire, filed a bill against Tancred, in whose cus- tody it was, to compel him to deliver it up, and to give an account. An objection was made that the duke's OF PARTIES TO SUITS IN EQUITY. 3 1 representative should have been made a party; but Lord Hardwicke 'overruled the objection; for pawnee of a pledge, as Saville was, may bring trover or deti- nue at law for it, without troubling himself with the pawner ; for he has a special property. But suppose he was not pawnee, but had only the possession of them, and delivered them to another ; that person has noth- ing to do with the duke. Therefore, let these jewels come into his hands which way they will, he may give the custody of them to any one, and have them back without hurting the duke or his representative.' " In Franco v. Franco (3 Ves. Jr. 75, anno 1796) the plaintiff, a trustee, had, at the request of his cotrustee the defendant, transferred the trust fund into his own name. The bill prayed, amongst other things, that the defendant might be decreed to replace the fund, and it was contended, on demurrer, that the cestuis que trust ought to have been parties ; but Lord Loughborough said, ' This is no bill for execution of a trust. What- ever the cestuis que trust would have, they could never found themselves upon the case the present plaintiff makes against the defendant,' and overruled the de- murrer. It need hardly be remarked that in Saville v. Tancred the Duke of Devonshire was interested in the jewels, and that in Franco v. Franco the cestuis qtce trust were interested in the stock. " In cases concerning trust property it is particularly necessary to pay attention to the correct rule ; for the cestuis qtie tr^^st are always the persons interested in the subject of the suit, and yet they are very frequently not to be introduced among the parties. Where, for in- stance, there are trustees to sell an estate, receive the purchase money, and pay it to particular individuals, if the mere object of the suit is to get into the hands 32 OF PARTIES TO SUITS IN EQUITY. of the trustee the property which is to be enjoyed by the cestuis gtie trtist, the latter need not be made par- ties; and the reason seems to be that their equitable rights remain in precisely the same situation, whether the trustees are successful or unsuccessful in their suit Yet it is quite clear that they would be necessary par- ties, if all were so considered who are interested in the subject of the suit, according to the meaning of the term 'subject' which has been referred to. " The rule, then, which has been stated in these cases with reference to the subject of the suit, meaning thereby the estate or fund on which the question at issue has arisen, does not appear to be adapted to gen- eral application. It must be taken in connection with other authorities which will now be quoted. " In King v. Martin (2 Ves. 643, anno 1795), Lord Loughborough says, ' There is no pretense for demur- rer. This is a bill stating a case for relief, a case of confederacy between the defendants ; and the material party, and against whom a decree m-ight be made, not perhaps for the specific relief prayed by this bill, is the bankrupt who has demurtred. The case of making a witness to a will a defendant, to know what he will say when he comes to support the will, is perfectly differ- ent ; but if it was a case in which a will was impeached as obtained by fraudulent practices, the witnesses are proper parties. Lord Eldon says, in Fenton v. Hughes (7 Ves. 288, anno 1802), ' It is admitted that it is im- possible to file a bill against a person who is a mere witness, if the object of the bill is to have relief in equity. That this is established by a great variety of authorities.' The general effect of this decision is said by Sir T. Plumer, in Whitworth v. Davis (7 Ves. & B. 550, anno 1813), to be 'that a person who has no inter- OF PARTIES TO SUITS IN EQUITY. 33 est, and is a mere witness, against ■whom there can be no relief, ought not to be made a party.' Sir John Leach says, in Smith v. Snow (3 Madd. 10, anno 18 18), ' Persons not interested in the stiit cannot be made parties, and it is sufficient to say that it is not alleged that these defendants have any interest in the S7dt'. And again, in Lloyd v. Lander (5 Madd. 289, anno 182 1), speaking of a bankrupt, he says, "■ Havifig thus neither interest nor power in the subject of the suit, which reqtcires to be bound by the decree of the court, it is difficult to conceive any principle upon which he can be considered as a necessary party.' The dicta which have been last quoted coincide with the opinion of Lord Hardwicke in Poore v. Clark (2 Atk. 515, anno 1742), when he made the criterion to be, 'what persons are necessary to make the determination com- plete, and to quiet the question] So Lord Lyndhurst says, in his judgment upon the case of Small v. Att- wood (Younge, 458, anno 1832), 'The general rule is, that all persons who are interested in the question must be parties to a suit instituted in a court of equity.' A similar principle is expressed in Comyn's Digest, title Chancery, E, 2, namely, that ' all concerned in the de- mand ought to be made parties in equity.' Not all concerned in the subject-matter respecting which a thing is demanded, but all concerned in the very thing which is demanded, the matter petitioned for in the prayer of the bill, in other words, the object of the suit. The same remark applies to all the authorities which have just been quoted. They make the propriety of a person being made a party depend upon his interest, not in the subject-matter, but in the object of the suit. " If this distinction between the meaning of ' the subject of a suit,' and that of ' the object of a suit,' is 3 34 ' OF PARTIES TO SUITS IN EQUITY. borne in mind, it may appear superfluous to show by other authorities, that the word 'interest,' when used as a criterion of the proper parties to a suit, means in- terest in its object, and not interest in its subject-mat- ter. Still, as the word seems to have been loosely employed in the opinions which were quoted in the first instance, and as the correct interpretation of it may be the key to many difficulties which arise respect- ing parties, no apology will be required for mentioning the interpretation of the word which has appeared in a work recently published by Mr. Wigram. " In the following passages he is ascertaining what are the documents which a plaintiff may compel a de- fendant to produce. ' The plaintiff" (Points on the Law of Discovery. By James Wigram, K. 6, p. 199) must show that he has an interest in the documents, the production of which .he seeks. There can be no objection to this mode of expressing the rule, provided the sense in which the word interest is used be accu- rately defined. But without such definition it is obvious that this mode of expressing the rule is unprofitable for instruction. The word interest must here be understood with reference to the subject-matter to which it is ap- plied. * * * The word interest must, therefore, in these ■ cases, be understood to mean — an interest in the produc- tion of a document for that specific ptirpose. * * * Un- less the meaning of the word interest be limited in the way pointed out, it is obvious that the eflfect of a single claim (perhaps without a shadow of interest), would be to open every muniment-room in the kingdom, and every merchant's accounts, and every man's private papers, to the inspection of the merely curious.' In perfect keeping with these remarks, is Mr. Wigram's explanation of the word material, when it is said that OF PARTIES TO SUITS IN EQUITY. 35 the plaintiff has a right to the discovery of all matters which are material to his case. ' The word material (Points on the Law of Discovery, p. 65} is relative — material with reference to the purpose for which dis- covery is given — i. c., material with reference to the plaintiff's case. Now, the plaintiff's case (in the sense , in which the words are here used), is that case upon vrhich the parties are about to go to trial.' Mr. Wig- ram afterwards quotes a passage from Lord Redesdale, in which, stating the general right of a plaintiff to a discoveiy of the matters alleged in the bill, he says, ' provided they are necessary to ascertain certain facts material to the merits of his case, and to enable him to obtain a decree.' These passages are the more import- ant in confirming the rule upon parties which will be proposed, as there is a strict analogy between the pur- pose for which parties are made, and that for which discovery is given. ' The purpose (says Mr. Wigram, Ibid. p. 200) for which discovery is given, is simply and exclusively to aid the plaintiff on the trial of an issue between himself and the defendant' So the purpose for which parties are made, is to enable the plaintiff to bring that issue to trial. Therefore the rule upon dis- coveries to be made, and upon parties to be brought into court, ought to be founded upon the same prin- ciple. " Upon the consideration of all the authojities, it is proposed to state the general rule in the following words: All persons having an interest in the object of the suit ought to be made parties" This analysis by Calvert, of the judgments of courts, evolves with much definiteness the considerations by which the interest a person must have, to make him a party to a suit in equity, should be determined. It sets 36 OF PARTIES TO SUITS IN EQUITY. Up, as the test of the question in regard to parties, in- terest in the object of the suit or relief sought, exclud- ing any consideration of the subject of the suit. This is too one-sided a view of the question. While it may perhaps be true that the object would be a more exact and comprehensive test than the subject of the suit, if we make either the exclusive test, yet the two, as con- stituting the topics to be considered in the question of interest, constitute a better test than either separately. Nevertheless, Calvert's analysis gives a better view of the question than any of the authorities quoted by him. A more exact and complete general rule is : " All per- sons having an interest in both the subject and the object of the suit, and all persons against whom relief must be obtained in order to accomplish the object of the suit, should be made parties" * Looking back over what has thus far been written, in regard to the question of parties to suits in equity, including the extracts from Calvert, it will be seen that the chronology of the successive decisions of courts on the question is presented. This is done, in order to show the gradual and tentative manner in which the doctrines and rules have, from time to time, been evolved by courts out of cases as they came before them for adjudication, each case being decided, in rela- tion to parties, upon its own special circumstances. Yet, as ethical rules are universal in application, and the decisions of courts of equity in regard to parties only accommodate these rules to the requirements of justice with its varying circumstances, it will be discov- * Calvert, in the 2d ed. (1847) of his treatise, gives the rule: All per- sons who have in the object or objects of the suit an interest or interests apparent upon the record, are necessary parties. This enunciation of the rule is no improvement on the first. OF PARTIES TO SUITS IN EOUITY. 2)7 ered that there is a doctrinal affinity and logical co- herency, founded on the principle that all persons in interest should be parties, that combine the doctrines and the rules into a definite system, accommodated to the behests of administrative justice, within equity jurisdiction. In order to understand the practical significance of the doctrines and rules which have been expounded, it is necessary to illustrate them by examples of cases belonging to equity jurisdiction. This will now be done. The illustration of the fundamental principle rela- tive to making parties to a suit in equity, given by Lord Chief Baron Gilbert, in his " Forum Romanum," 157, 158, published anno 1758, is an excellent intro- duction to examples illustrative of the subject : " Where a man seeks for an account of the profits or a sale of real estate, and it appears, upon the pleadings, that the defendant is only a tenant for life, and conse- quently the tenant in tail cannot be bound by the de- cree ; and where one legatee brings a bill against an executor, and there are many other legatees (none of which will be bound either by the decree or by an ac- count to be taken of the testator's assets), and each of these legatees may draw the account in question over again at their leisure ; or where several persons are en- titled, as next of kin under the statute of distributions, and only one of them is brought on to a hearing ; or where a man is entitled to the surplus of an estate, under a will, after payment of debts, and is not brought, on ; or where the real estate is to be sold under a will, and the heir at law is not brought on ; in these, and all other cases, where the decree cannot be made uniform ; for, as on the one hand they will take care that the de- o 8 OF PARTIES TO SUITS IN EQUITY. fendant is not doubly vexed, he shall not be left under, precarious circumstances because of the plaintiflF, who might have made proper parties at first, and whose fault it was that it was not so done." This view of the principle upon which' parties to suits in equity are made, presented by Chief Baron Gilbert, is widened and enhanced by the case of a mortgage in fee made to secure a debt by bond, and the mortgagee dies. In such case the heir is the sole party entitled, at law, to sue the mortgagor for the pos- session of the land ; and the executor or administrator is the sole party entitled, at law, to sue for the debt on the bond. They cannot join in one suit their respect- ive claims. But in a suit in equity to compel payment of the debt or a foreclosure of the mortgage, they may be joined. For, though the executor or administrator is deemed in equity the sole party entitled to the debt, and therefore entitled also to sue upon the mortgage for a foreclosure, yet he may not sue alone ; but he will be compelled to join the heir, either as a co- plaintiflF or as a codefendant, because the mortgagor is entitled, upon payment of the debt, to have a recon- veyance of the estate, and this can be made only by the heir in whom the estate is then vested. The heir is treated as a trustee of the executor or administrator until the debt is paid, and when it is paid he is treated as a trustee of the mortgagor. In order, therefore, to avoid circuity of action and multiplicity of suits, equity requires both the heir and executor or administrator to be joined in the same suit, in order that all rights in the transaction may be bound by the decree and com- plete justice be done. (Calvert on Parties, 2.) The principle is, that in cases which aflFect personalty as well as realty, the heir must be joined with the personal rep- OF PARTIES TO SUITS IN EQUITY. 39 resentative. (Ashurst v. Eyres, 3 Atk. 341, anno 1740; Calvert on Parties, 166.) And as a further illustration of the rule — where the ancestor has entered into a cov- enant to do certain acts, and bound himself and his heirs to the performance of them, if he should die, and a bill in equity be brought against the heir alone to compel a performance of the covenant, the court of equity would require the executor or administrator of the ancestor to be made a party. Because, if the exec- utor or administrator had assets, the heir would be en- titled, upon another bill against him, to be reimbursed out of . the personal assets. But, by uniting the heir and the executor or administrator in the same bill, the court could, at once, do complete justice, between all the parties, by decreeing the executor or administrator to perform the covenant so far as the personal assets might go, and the rest to be made good out of the real assets descended to the heir. (3 P. Wms. 331, 333.) The view of the principle upon which parties to suits in equity are made, disclosed in the quotation just made from Chief Baron Gilbert; is illustrated by the rule that when a debt is joint and several, the creditor should bring all his. debtors before the court, except where the party omitted is only a security ; or where nothing has been paid, and the co-obligor is insolvent ; or where the co-obligor is dead, and there are no per- sonal assets ; or where a judgment has been obtained against one of the obligors who alone is sued, because the judgment drowns the bond and makes him alone liable. (2 Vent. 348; 2 Vern. 195, anno 1690; 3 Gill & Johns. 491, per Bland, Chancellor.) So where a bill is filed to affect a fund in which different persons have an interest, they must all be made parties, in order that their respective interests in 40 OF PARTIES TO SUITS IN EQUITY. the fund may be fully and finally adjudicated; and thereby multiplicity of actions be avoided, and even, perhaps, inconsistent adjudications also avoided, by all persons interested being before the court before any .decree is passed, (ii Gill &. Johns. 449.) Besides the principle of interest in the controversy by which the question of parties is determined, the courts, in furtherance of justice, allow, in suits against corporations, their officers or agents to be made parties defendant, though unaffected by the relief prayed, in order that they may make discovery on oath, which a corporate body cannot do, and without which the ob- ject of the bill could not be accomplished. But as they are made parties only for discovery where reHef is sought against the corporation, they cannot be made parties where the whole relief claimed is against per-, sons other than the corporation, (g Paige, 1 88.) In treating of cases illustrative of the general prin- ciples in relation to parties to suits in equity which have now been disclosed, the most definite mode, and the most instriictive to the student and available to the practitioner, will be to classify and consider them with relation to the different capacities in which persons appear in court. In treating of the different capacities in which per- sons appear in courts of equity as parties to bills, that of executor and administrator will first be considered. Suits affecting executors and administrators are of two kinds : those which arise out of the death of the deceased, such as suits by legatees, or next of kin, which could not have been instituted during the life of the deceased ; and suits which do not arise out of the death of the deceased, but could have been instituted against him in his lifetime. OF PARTIES TO SUITS IN EQUITY. 41 In cases where the deceased could have been sued in his lifetime, after his death, his executors or adminis- trators, as persons who possess and are responsible for his personalty and are in that respect his representa- tives, must be made parties. So in suits by legatees or next of kin, the executors or administrators, being re- sponsible for the correct distribution of the personalty, must be made parties. No part of the personal estate of a deceased debtor can be applied in payment of his debts without mak- ing his executor or administrator a party to the suit. (i Bland, 443.) It is a general rule that the executor or adminis- trator, as well as the heirs and devisees, must be made a party to a creditor's bill. (2 Bland, 509.) To a bill filed for the sale of the real estate of a deceased debtor for the payment of his debt, on the ground that the personal estate has been exhausted, the executor or ad- ministrator of the deceased must be a party. (4 Har- ris & Johns. 333.) Because the real estate being an- swerable only in case of the insufficiency of the per- sonal estate, the insufficiency of the personal estate must be shown before a decree can be obtained. (2 Harris & Johns. 94.) Where a court of equity is satis- fied from the facts in the cause that a deceased debtor left no personal estate to be administered, they will not require letters to be taken out, or proceedings against an administrator to be shown ; although, under other circumstances, such measures might be deemed neces- sary to make proper parties to the suit. (5 Gill & Johns. 432.) Where a creditor is under no obligation to look to the personal estate of his debtor, as where he is seeking by a bill in equity to subject to the payment of his 42 OF PARTIES TO SUITS IN EQUITY. debt a fund on which he has a spe.cific lien, as on land naortgaged to pay the debt, with which the executor or administrator has nothing to do, he need not be made a party to such proceeding. (2 Gill & Johns. 94.) Where there are several executors, and all have proved the will, all of them should sue and be sued together. (9 Mod. 89, anno 1724.) The authority of the executor is derived from the will, that of the admin- istrator from the letters of administration ; and they have, as personal representatives, the same privileges and liabilities as parties either complainant or defend- ant. And because of the absolute authority which they have over the assets of the deceased, it is unnecessary for a claimant against them to make either legatees or creditors or debtors parties to his suit. The court makes a complete decree, considering the estate of the deceased as protected by the personal representative. In Peacock v. Monk (i Ves. 131, anno 1748) it was said, " The executor in all cases sustains the person of the testator to defend the estate for him, creditors and legatees." The executor may represent the entire per- sonal estate in the capacity of plaintiff, as well as iii that of defendant. He may file a bill, to recover prop- erty of the deceased in the absence of the legatees. (3 P. Wms. 22, anno 1 729.) And one next of kin tak- ing out administration may file a bill for an account, without bringing the other next of kin before the court. (3 Sim. 263, anno 1829.) But if an executor, suing for a debt due to his testator, makes a legatee a party, it is no ground- for a demurrer. (6 Sim. 617, anno 1834.) In cases in which realty, as well as personalty, is affected by the prayer of the bill, the personal repre- .sentative should, in general, be joined in the suit with the real representative. (3 Atk. 341, anno 1740; 9 OF PARTIES TO SUITS IN EQUITY. 43 Mod, 299, anno 1742.) And the principles which determine in what cases the executor must be joined with the heir, determine the cases in which he must be joined with the devisee. Where the will puts the devisee in the place of the heir, and the circumstances of the case are such that if there had been no will the heir would have been a necessary party with the exec- utor, the devisee must be joined with the executor. (3 Atk. 341, anno 1740; 2 Bligh, 567, anno 1820; 3 Russ. 277, anno 1827.) It being a rule in equity that where more than one are liable to a demand, you shall not proceed against one alone, but must bring all the persons liable before the court ; where there are several codebtors, and one dies, his executor must be joined with all the surviving debtors in a suit to recover the amount of the debt. (3 Atk. 406, anno 1 746.) Heirs will next be considered as parties to suits in equity. It is a fundamental rule that whenever a bill prays for the proof of the will, the heir of the testator must be made a party. (2 Ves. 43 1, anno 1 752 ; 4 Sim. 292, anno 183 1.) Whenever the deceased would have been a party in respect of , his real estate, and his interest has survived him, such interest must be represented in the suit by the heir, or in case of a devise being made, by the devisee, or by the devisee and the heir together. Where a second mortgagee brought a bill against the first, to redeem his mortgage, without making the heir of the deceased mortgagor a party, and the bill alleged that he was abroad, in America, it was held by the court that the heir was an indispensable party ; for the natural and common decree in such case is that the second mortgagee shall redeem the first mortgage, and that the mortgagor shall redeem him or stand fore- 44 OF PARTIES TO SUITS IN EQUITY. closed. In such case, the foreclosure would conclude the interests of the heir in a,suit to which he was no party. (2 Bro. Ch. R. 276-279; 12 Ves. 58, 59.) If the bill in this case had sought only a redemption of the first mortgage, without any foreclosure, the court might have allowed the second mortgagee to maintain the bill without making the heir a party, if the second mortgagee was willing to take a decree without any account which would bind the heir of the mortgagor. The only effect of the decree then would be to put the second mortgagee in the place of the first ; leaving the amount due on the first mortgage open to examination in the same way as if there had been an assignment of the first mortgage to the second mortgagee. (Story Eq. Plead, sec. 84, n. i.) In a bill brought by the per- sonal representatives of a deceased vendor, for a specific performance of a contract for the sale of real estate, all the heirs of the vendor ought to be parties, either as plaintiflFs or as defendants. (2 Wheat. R. 297, 298.) So to a bill brought by a vendor or his personal repre- sentatives, for a specific performance of a contract of sale of real estate made by a deceased vendee, the heirs (or devisees, if any) of the vendee, as well as his per- sonal representative, should be made parties. (9 Price R. 1 30.) To a bill in equity by heirs at law, to set aside a conveyance made by their ancestor, for fraud and imposition, a final decree will not generally be made until all the heirs are before the court. (11 Wheat R 104.) So prone are courts to protect the rights of the heir, in any suit affecting his title, that a motion to deliver title deeds to a devisee was refused on account of the absence of the heir, (i Ves. jr. 29, anno 1789.) But the strictness of the rule requiring th^ heir to be made a party is sometimes relaxed to meet the ends OF PARTIES TO SUITS IN EQUITY. 45 of justice, where it is required by the circumstances of the case. Where the vendor was dead, and his heir beyond sea, and a bill was filed to compel a purchaser to fulfil articles of agreement by completing his pur- chase, the court said : " In the present case it appears that the defendant, who articled to purchase, knew at that time that the heir was beyond sea, and still accepted the title without insisting that the heir should join, or that the will should be proved against the heir. Also the defendant admits by his answer that the will was duly executed, and by entering upon great part of the estate has himself executed the purchase ; for which reason let him pay the rest of the purchase money, with interest, according to the articles, and at the same time let the trustees and mortgagees join in proper conveyances to the defendant, the purchaser." (3 Peere Wms. 192, anno 1733.) Having considered, as parties to suits in equity, ex- ecutors and administrators and heirs — who respectively represent the personal and real assets of deceased per- sons — creditors, who are entitled to be paid before legatees, or devisees, or next of kin can receive any part of the assets, should next be considered as parties to suits in equity. This is both the legal and logical order of the doctrine of parties to suits in equity. Creditors are all persons to whom either a person or his estate after his death is indebted ; and any cred- itor to whom a separate debt is due, may institute a separate suit for the satisfaction of his demand. But if different persons are entitled to one and the same debt in portions, they must all be parties to the suit. When a debt is assigned, the suit is usually brought by the assignee in the name of the assignor. The common practice is for one creditor to file a 46 OF PARTIES TO SUITS IN EQUITY. bill on behalf of himself and all other creditors. In a creditor's bill, the creditors should be called in to par- ticipate as coplaintiffs, but when they come in, they are thenceforward considered parties to the suit, and may be regarded as plaintiffs or defendants, as their in- terests or the nature of the case may require. (2 Bland, 306.) If a debtor assigns his property for the benefit of his creditors, and only a certain number of them come in under the trust deed, some of those who so come in cannot file a bill for general account of the debtor's estate, and to have the debtor's funds applied in dis- charge of those creditors only who come in under the deed> for they cannot deprive the other creditors of the satisfaction of their claims, (i Dick. 375, anno 1764.) A creditor by mortgage and collateral bond cannot sue both as mortgagee and as bond creditor. And a bond creditor cannot sue alone ; he must sue on be- half of himself and all other bond creditors. (3 Y. & C. Eq. Ex. 597.) See 3 Atk. 571, anno 1747, and 4 Sim. 47, anno 1830, where it was decided that a bond creditor may file his bill against an executor for an account of assets, and for satisfaction of his debt, with- out bringing other bond creditors, or creditors of any other description, before the court. To a bill to vacate a deed -as fraudulent as against the creditors of the grantor, the grantor is a necessary party, as well on account of the fraud charged, as be- cause of the title remaining in him for the benefit of creditors. (17 Md. R. 525 ; i Wall. 81.) To a bill for a foreclosure and sale, all incumbrancers or persons having liens, existing at the commencement of the suit, subsequent as well as .prior in date to the plaintiff's mortgage, must be made parties. The rights OF PARTIES TO SUITS IN EQUITY. 47 of such persons not made parties cannot be impaired by the decree. (3 Johns. Ch. R. 459 ; 3 Md. Ch. Dec. 23-) The purchaser of land, at a tax sale, who has the officer's certificate of sale, has such an interest in the land as to be a proper party in a proceeding to fore- close an equity of redemption. (4 Greene [Iowa], 135 ; Blackwell on Tax, tit. 293, and notes.) Legatees will next be considered as parties to suits in equity. A legatee may sue an executor for dis- covery of assets, or for his own legacy, without making the residuary legatee, or any other legatee a 'f)arty. (12 Mod. 522, anno 1700; i Ves. 131, anno 1748.) A legatee of the moiety of a fund may file a bill without bringing the legatee of the other moiety before the court. But a legatee who has made an assignment of a legacy before the commencement of the suit, must make the assignee a party. (3 Y. & C. 17, anno 1839 ; 4 Y. & C. 17, anno 1 840 ; i H. of L. 703.) Legatees whose interests are conflicting, must not be coplaint- iffs. (3 Y. & C. 333, anno 1838; 8 Sim. 577, anno 1837-) By analogy to the case of creditors, a legatee is 'allowed to institute a suit on behalf of himself and of other legatees. This doctrine is laid down, as will be seen, by Mitford in this treatise. (Chap, ii, sec. viii.) And so when residuary legatees are .very numerous, some of them are allowed to sue on behalf of them- selves and of all the others. (16 Ves. jr. 328, anno 1809.) Where an executor hands over property to the re- siduary legatee, without setting apart a sufficient sum to answer a particular legacy, for which a bond is given by the residuary legatee, and the executor states to the 48 OF PARTIES TO SUITS IN EQUITY. particular legatee that the amount of such legacy is less than it really is, the particular legatee may main- tain a suit for the difference against the residuary leg- atee and the representatives of the executor personally, without making the representatives of the testator par- ties to the suit. (3. Beav. 544 ; Talm. 3 1 5.) Legatees are sometimes mentioned in wills by classes. In such case, it is the practice to have an in- quiry whether all members of the class are before the court. This is only the application of a general rule, that where classes of persons are interested, an inquiry shall be md^de by the master, whether all members of the class are before the court, (i Hare, 327, anno 1842; 4 D. & W. 149, anno 1843 I 4 Sim. 573, anno 1831.) As next in order, devisees will be considered as parties to suits in equity. Where the suit is to estab- lish the will, the devisee and the heir are both made parties ; the question in fact being between them. (2 Ves. 431, anno 1752; Ves. 276, anno 1791.) When- ever the circumstances are such that the duty of which the performance is prayed in the bill aifects the prop- erty devised, and the establishment of a clear title is important, the heir and devisee are necessary parties, (3 Peere Wms. 367, anno 1735; 3 Atk. 341, anno 1740.) Next of kin will now be considered as parties to suits in equity. Whenever the distribution of the assets to persons beneficially interested is the object of the suit, the presence in court of the next of kin is necessary. (13 Sim. 620, anno 1843.) If there are many next of kin, though all must, when their rights are considered, be before the court, yet all of them need not be parties to the record, (i S. & S. 330, anno 1823 ; 4 My. & C. 497, anno 1839.) OF PARTIES TO SUITS IN EQUITY. 49 The question of parties, in relation to the other im- portant capacities in which persons appear in court, besides those just considered, is sufficiently considered for the purposes of this dissertation, in the occasional instances scattered through the dissertation. Having considered the doctrine of parties to suits in equity in relation to the different capa^^ities in which they sue, it will make the doctrine of parties more definite, to treat of it in relation to suits for an ac- count ; because this kind of relief is so frequently sought that it requires separate consideration. The prayer for an account is used, not merely in suits which are termed suits for an account, but also in suits for many other kinds of relief; and in all in- stances where an account is prayed, it is necessary to make every person a party who has an interest which will require protection when the account is taken. There are few kinds of bills for relief, in which a prayer for an account is not more or less frequently in- troduced. Thus the prayer for an account is inserted in bills for a specific performance or alteration of agree- ments, for the establishment of securities, for the pay- ment of sums of money, for dower, for a settlement out of legacies, for the arrangement of partnership dealings, for partition, and in almost all bills filed by mortgagors and mortgagees, executors, creditors, lega- tees, or debtors. And the kind of relief prayed in the bill, whatever it may be, can make no difference in the matter of making parties in respect of the prayer for an account. They must be made as though an account was the only object of the suit. The rule, for instance, upon which a partner or a mortgagee selects parties to a suit for an account, will not be altered because a dis- 4 50 ' OF PARTIES TO SUITS IN EQUITY, solution of partnership or a foreclosure is prayed at the same time. (Calvert on Parties, 1 1 j.) An account may be sought by several persons against one, or one against several. In such cases, all the persons on each side, having an interest in the ac- count, are necessary parties to the suit. (2 Bro. Ch. R. 33S ; I Ke^n R. 24.) And where different persons are interested in the account, although not in the same right, they should be joined ; as, for example, heirs and personal representatives, residuary legatees and dis- tributees, mortgagors and mortgagees, and their as- signees ; persons receiving ' and holding assets in suc- cession, in virtue of their representative character, and persons having distinct interests in the same security, either jointly or in succession. And where different portions of the sum in question have come into the hands of different persons, they should all be made parties for an account. As in a suit by a creditor for an account of the assets of a deceased person, the per- sonal representative of his first representative, in case such first representative received any part of the assets, should be joined as codefendant with the subsequent and continuing personal representative, (i Mylne & K. 237-248.) If two factors or executors are bound to render an account, they ought both to be brought be- fore the court so as to render an account together. (2 Equi. Ca. Abrig. 167.) All the colessees are necessary parties to a bill for an account of certain allowances to be made by lessors to their lessees. (2 Eq. Ca. Abrig. 166.) A surviving partner of a testator may be joined as a codefendant with an executor to a bill filed for an account by the residuary legatees, and may thereby be required to account to them in respect of the assets in his hands as a partner, (i Russ. & M. 277 ; i Keen, OF PARTIES TO SUITS IN EQUITY. 5 1 534.) A bill seeking an account of the assets of an intestate who died in India, which have been possessed by a personal representative constituted by the proper court there, cannot be sustained in the absence of a personal representative of the intestate constituted in England, and consequently no letters of administration ., have been taken out in this country. (2 .My. & C. 89.) And also to a suit instituted for an account of assets of a testator possessed by an executor in Honduras, an executor constituted in this country is a necessary party. (7 Law J. [O. S.] 43, Ch. R. Where a clear ascertained fund is remitted from abroad by an exec- utor to a person in England, to apply it for the benefit of the legatees thereof, the court will determine the re- spective rights of the several legatees without having a legal personal representative of the testator before the court, if the consignee is a party to the suit ; at least, if no objection be made by the defendants on the ground of the personal representative not being a party. (4 Beav. 506.) The case of Palk v. Clinton (12 Ves. 48, anno 1806), presents a remarkable instance of how an interest in the account renders a person a necessary party. Lord Oxford had mortgaged his entire estates in Dor- setshire, Devon and Cornwall, to one Hughes. By his will, his estates in Dorsetshire were devised to one Walpole ; those in Cornwall and Devon were devised to trustees in trust to raise certain sums by sale or mortgage. The trustees raised a sum by a mort- gage to Palk. The bill in the case was filed by Palk for an account of what was due to the executors of Hughes upon the mortgage to him, and for an account of what was due to Palk under the mortgage to him, and praying that the trustees might be decreed to 52 OF PARTIES TO SUITS IN EQUITY. sell so much of the estates comprised in that trust, as would be sufficient to pay the sums that might be due upon both those accounts. It must be observed that the object which Palk had in view was only to recover the money which he himself had lent. The question is presented, why should Walpole be made a party to the bill ? There is no privity of contract or estate between him and Palk. The reason is, that if the second mort- gagee redeem the first mortgagee to any amount, he must redeem him entirely. Thus Palk was obliged to redeem the entire mortgage to Hughes, which was secured on the Dorsetshire estates, as well as upon the Cornwall and Devon estates. Walpole was interested in seeing that the account was properly taken between Palk and Hughes in respect of the liability of the Dor- setshire estates, and therefore he became interested in a suit for the recovery of a loan, which in itself did not affect him, and bound, not his property in Dorsetshire, but the properties of the other persons in Devonshire and Cornwall. (See 15 Vin. Ab. 447, tit. Mortg. F; Calv. Part. p. 126.) In a bill against a bank for an account of collaterals held by it as security for the debt of a third party, the latter is a necessary party. (3 Sumner R. 423.) Where the amount of a trust fund for creditors is not fixed, and it is necessary to take an account in order to fix it, all the cestuis que trust must be made parties, either as plaintiffs or defendants. (2 Curtis R. 171.) Where one person has the legal title to a patent, and another the equitable right, both should be joined as plaintiffs in a suit for an injunction and account, founded upon an infringement. (4 Blatch. C. C. R- 333-) OF PARTIES TO SUITS IN EQUITY. 53 All the partners, or their representatives, are indis- pensable parties to a bill for a dissolution of the part- nership and an account. (2 Abbott C. C. R. 542.) Upon a bill for an account, filed by one partner against his copartners, after the termination of the part- neirship, all the parties are regarded as actors, and the accounts must be stated by the auditor, and the con- cerns of the partnership and rights of the several part- ners finally adjudicated, as if each partner was a com- plainant filing a bill against his copartners. (9 Gill & Johns. R 280.) In a proper case of an account in equity, it would seem that both parties are regarded as actors, since if it should appear from the auditor's report, in pursuance of a decree to account, that the plaintiff was indebted to the defendant, a final decree might be passed for such balance in favor of the defendant. (2 Gill & Johns. R. 14, per Bland, Chancellor.) A decree for an account in a suit by one or more creditors against the executors, either for themselves, or on behalf of themselves and all other creditors, is for the benefit of all, and in the nature of a judgment for all, and from the date of such decree an injunction will be granted upon motion of either party, and upon a due disclosure of assets, to stay all proceedings of any creditor at law. (4 Johns. Ch. R 619 ; i Md. Ch. Dec. 469 ; I Story Eq. sec. 549.) To a bill by the United States, proceeding as an ordinary creditor, against the debtor of their debtor, for an account, &c., the original debtor ought to be made a party, and the account taken between him and his debtor. (4 Wheat. R. 108.) Whenever persons sue for an account on behalf of others as well as of themselves, it must appear on the 54 OF PARTIES TO SUITS IN EQUITY. face of the bill that they sue on behalf of all persons entitled to the account, or make defendants of those on whose behalf they do not sue. The jurisdiction to superintend a charitable trust is, in England, set forth by the information of the attor- ney general, suing on behalf of the crown ; or, if the trust is such that its non-performance has inflicted per- sonal injury on an individual, then by a compound form of suit, uniting both the public and private wrong, called an information and bill. Jurisdiction in this country is maintained over charitable trusts by courts of equity, by similar procedure modified by our judicial polity. As the Supreme Court of the United States has original jurisdiction, under the express grant of the Constitution, of controversies between two or more States, the court has established the bill in equity as the proper remedy in disputes between States in regard to their respective boundaries. And it is settled, that where a State is a party, plaintiff or defendant, the governor represents the State, and that the suit may be, in form, a suit by him as governor in behalf of the State, where the State is plaintiff, and he must be sum- moned or notified as the officer representing the State, where the State is defendant. (2 Dall. 419 ; 5 Pet. 284; 3 Dall. 320; I Pet. no; 4 How. 591 ; 24 How. 66.) The equity jurisdiction and jurisprudence of the United States courts are coincident and coextensive with the English, and are not regulated by the munic- ipal jurisprudence, of the State where the court sits; and their practice is based on that of the Court of Chancery in England, and not on the peculiar practice of the State courts. In the foregoing discussion of the doctrines, the OF PARTIES TO SUITS IN EQUITY. 55 principles and the rules regulating the practice of courts of equity in regard to making parties to suits within their jurisdiction, old authorities have been par- ticularly cited, to show the stability of the rules, prov- ing their wisdom by their long continuance in equity practice. And there is an abstinence from citation of those modem authorities, which are rather illustrative of the idiosyncracies or momentary fancies of individ- ual judges than sound expositions of the ancient and established rules and practice in equity. But it must, nevertheless, be ever remembered, and ever be borne in the professional mind, that courts of equity accom- modate their rules of procedure to all exigencies of administrative justice, so as to give effectual relief in every state of circumstances. And as, in the progress- ive changes in the affairs of men, new cases must con- tinually arise, a court of equity must take cognizance of them, and not, from too strict adherence to rules and forms established under very different circum- stances, decline to administer justice and enforce rights for which there is no other remedy. It is not at log- ical consistency that courts of equity aim in devising procedure, but at the attainment of justice in every case of dispute, however peculiar in its exigencies. But nevertheless, in the exercise of its power of ac- commodating its procedure to the exigencies of justice, within the scope of its special jurisdiction, a court of equity must be guided by some ethical principle con- sonant with the fundamental doctrines of equity juris- prudence, and which, by its obvious expediency, will recommend itself to ordinary judicial forecast. The selection of proper parties to a suit, notwithstanding simplifications introduced by legislation both in En- 56 OF PARTIES TO SUITS IN EQUITY. gland and this country, is still sometimes a matter of complicated considerations. Mitford, in his work, has treated the doctrine of parties to suits in equity with ability, but so briefly that this dissertation is designed to supplement what he has written. OF PLEADINGS IN SUITS IN EQUITY. BY SAMUEL TYLER. The jurisprudence of the United States is sepa- rated into two great departments — law and equity. This peculiar division of administrative justice, has, like our political institutions, come to us from En- gland, as a part of the heritage from our ancestors. The peculiar principles of justice, and the powers of the court of chanceiy in England, at the time of the American revolution, not altered by our legislation, nor inapplicable to our political institutions, are the same by which the United States courts, when sitting in equity, and the courts of equity in the different States, are governed. In order then, to understand our equity system, we must examine that of England. The office of chancellor in England, originated in the earliest ages of English institutions. In early times, the chancellor was an ecclesiastic, and was called the keeper of the king's conscience. His duties, from an unimportant beginning, became so extensive that he rose to be the head of the judicial system of the nation, presiding over the administration of jus- tice. No suit could be instituted in any court of law without a writ obtained from him for the purpose. His duties divided themselves into two great occupa- tions : one, the supplying writs to suitors who wished to litigate in the courts of law ; the other, the deciding (57) 58 OF PLEADINGS IN SUITS IN EQUITY. peculiar classes of cases as a judge. This last branch of his duties is what is meant by his equity jurisdic- tion ; and the principles of his decisions as a judge, recognizing equities as distinct from legal rights, and also a peculiar procedure distinct from that of the common law, constitute equity jurisprudence. The popular meaning of equity is natural justice. But this is not the meaning of equity as understood in the jurisprudence of England and of the United States. A court of equity is not, any more than a court of law, a court merely of natural justice. " The very terms of a court of equity and a court of law, as contrasted to each other, are (says Blackstone) apt to confound and mislead us, as if the one judged without equity and the other was bound by no law." Now, in courts of law, there is not only no divorce of law from natural justice, but no antagonism between them. Law is natural justice modified by circumstances of convenience, of expediency, and of policy. So equity is natural justice modified by the peculiar circumstances and exigencies inherent in the kind of cases belonging to its juris- diction. As law does not judge without natural justice, so equity does not judge without law. " Equity follows the law " is a fundamental maxim of equity jurispru- dence. A court of equity is as much bound by a statute as a court of law is. It cannot interpret the statute more liberally. The rules of interpretation are the same in both courts. " There is not (says Blackstone) a single mle of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the courts both of law and equity ; the construction must in both be the same ; or, if they differ, it is only as one court of law may also happen to differ from another. OF PLEADINGS IN SUITS IN EQUITY. 59 Each endeavors to fix the true sense of the law irt question; neither can enlarge, diminish or alter that sense in a single title." And courts of equity are equally bound by precedents with courts of law. In fact, equity is based upon the same foundations with the common law, and has long been called a part of the common law. " Equity jurisprudence may, there- fore (says Story), properly be said to be that portion of remedial justice which is administered by a court of equity, as contradistinguished from that portion of remedial justice which is exclusively administered by a court of common law." And equity administration has for centuries been only the complement of the admin- istration of the common law. " Chancery is ordained to supply the law, not to subvert the law," said Lord Bacon, more than two centuries and a half ago. And upon this principle has equity jurisprudence been developed and administered ; and such is now its fundamental principle of administrative justice. What has been called equity in all systems of juris- prudence but the English is little else in spirit, though more in scope, than what is meant in common law • • • 1' 1 ■ courts by equity, m mterpretmg statutes and other positive rules of law, by enlarging or narrowing the letter in order to give more scope to the spirit of the statute or the rule. The fundamental rule of the kind of equity that is a mere principle of interpretation is qtii hczret in litera, hceret in cortice. This rule embodies its whole significance. But equity was used in a some- what larger sense than as a mere rule of interpreting positive rules of law by Aristotle, and afterwards in Roman jurisprudence. In the tenth chapter and fifth book of the Nichomachean Ethics, Aristotle says: " And this is the nature of ' the equitable,' that it is the 6o OF PLEADINGS IN SUITS IN EQUITY. correction of law, wherever it is defective, owing to its universality. This is the reason why all things are not according to law, because on some subjects it is impos- sible to make law. So that there is need of a special decree; for the rule of what' is indeterminate is itself indeterminate also, like the leaden rule in Lesbian buildings ; for the rule is altered to suit the shape of the stone, and does not remain the same ; so decrees differ according to circumstances." In the Roman law the same meaning was attached to equity. In the first book of the Pandects we find : " Neither the laws nor the decrees of the Senate can be so written as to com- prehend all cases which may happen ; but it is suffi- cient that they contain those which commonly happen." To supplement the law the praetor's jurisdiction was gradually established. In the first book of the Pan- dects we find : " That is praetorian law which the prae- tors have introduced for the sake of aiding, supplying and correcting the civil law on account of public utility." But, though the praetor's court was, like our court of equity, supplementary in the administration of jus- tice, yet it differed from our court of equity in not being confined in its jurisdiction to separate and peculiar classes of cases. The praetor's jurisdiction became blended with the civil law jurisdiction, and the edicts of the praetor became a part of the civil law, molding its characteristics to its own more comprehen- sive scope of remedial justice. To confound equity, in the sense of our jurispru- dence, with the praetorian law, and, like the Romans, throw all administrative justice into the same courts with one common procedure, is to destroy the distinct- ive character of equity as furnishing peculiar relief in OF PLEADINGS IN SUITS IN EQUITY. 6 1 administering justice where the courts of law cannot furnish proper remedies. Equity is applicable to dis- tinct classes of cases, and is administered by a court without a jury, according to a peculiar procedure espe- cially adapted to such cases. The statute of Westminster the Second, thirteenth year of Edward I, gave to the clerks in chancery the authority to frame new forms of action suited to the circumstances of each case, and hence called equitable actions. But cases frequently occurred in which no original writ could be framed so as to raise an action leading to a judgment which would do complete right, although the defendant had acted " contrary to equity and good conscience." Had it been possible to frame such form of action, the court of equity could never have developed into a separate jurisdiction, especially as the courts of law were so hostile to the jurisdiction. There are certain transactions which can be judi- cially investigated, and the justice applicable to them administered better, according to the principles and the mode of procedure of the law ; and there are other transactions which can be judicially investigated, and the justice applicable to them administered better ac- cording to the principles and modes of equity. And this results from the difference in the nature of the transactions, and the rights and liabilities involved in them. In some cases a general and unqualified judg- ment is all that justice requires; and such cases are infinite in number, and are the proper objects of law jurisdiction, as they can be better adjusted by the prin- ciples of the law and its peculiar mode of procedure than in any other way. Law jurisdiction is confined to cases in which there are but two interests — where all the plaintiffs, whether one or more than one, have 62 OF PLEADINGS IN SUITS IN EQUITY. one and the same right, and the defendants are subject to the same Hability. , The one party seeks to recover from the other a sum of money, or specific goods, or land ; and there is a simple judgment that the plaintiff recover, or that he fail. But there is another class of cases of litigation in which " some modification of the rights of both parties (says Story) may be required, some restraints on one side or on the other, or perhaps on both sides ; some adjustments involving reciprocal obligations or duties; some qualifications or conditions, present or future, temporary or 'permanent, to be annexed to the exercise of rights or the redress of injuries." In matters of trust, for instance, the court has to ascertain the conduct and acts, as well of all persons in a fiduciary position, as of all their ceshds que trust, and to adjust the several claim's and liabilities, making all just allowances under the special circumstances of every transaction. So, likewise, in the exercise of jurisdiction for the protec- tion and administration of estates, where there are vari- ous classes of parties having different and antagonistic interests, creditors are to be ascertained, assets to be got in, orders are to be made, and directions to be given, from time to time, in regard to the property and its distribution amongst the parties entitled. It is sufficiently manifest that such cases as these cannot be resolved into simple issues, like the class of cases where there are only two interests, and a simple judgment that the plaintiff recover or fail does complete justice. An entirely different mode of procedure is necessary for these cases. The judgment or decree has to be directory, and' sometimes reciprocal. The equity mode of procedure has been provided for this class of cases in administrative justice. OF PLEADINGS IN SUITS IN EQUITY. 63 In order to get a clear and definite insight into equity procedure, it becomes necessary to advert to its origin in England. The matters litigated in courts of law can all be resolved into simple causes of action that can be classified, and each class be stated in a sim- ple formula called a form of action. The system of common law procedure, therefore, begins with a simple formula presenting a single claim of one party against another. When, therefore, such matters arose as those which have just been stated as belonging to equity jurisdiction, the common law furnished no adequate remedy. The person grieved being thus without rem- edy at the common la\y, made his complaint, which could not be stated in any form of action, to the lord chancellor, whose office was the fountain of justice, and he, thereupon, without common law process, or regard to common law rules of proceeding, as they were not applicable, compelled the opposite party or parties to appear and be examined, either personally or upon written interrogatories touching the matter complained of; and evidence being heard on both sides, the chan- cellor, without the interposition of a jury, decided according to equity and good conscience ; because the matters of equity cognizance being of a nature more indeterminate, more modified by circumstances than those of law, admitted of, indeed called for, a larger judicial discretion, a more ample appHcation of the principles of natural justice, in deciding them. According to the practice which this statement indicates, a suit in equity proceeds in the following manner : The party seeking relief, called the complainant, or plaintiff, files in the court a petition setting forth the 'facts of his case and asking for relief. 64 OF PLEADINGS IN SUITS IN EQUITY. This petition is called a bill in equity. It is also called an original bill, to distinguish it from other bills which will be presently mentioned, that are filed in the progress of a suit to remedy defects and errors in the original bill. An original bill consists of five principal parts: I. The statement ; 2. The charges ; 3. The interrogaT tories; 4. The prayer of relief; 5. The prayer of process. These five technical divisions of a bill have their respective functions in the presentation of the com- plainant's case. The bill must state the case in direct terms, and with reasonable certainty. The allegations must be positive, and not by way of recital ; and must be of facts only, and not of law. And every averment of fact necessary to entitle the complainant to the relief sought must be contained in the stating part of the bill. If every necessary fact for the maintenance of the suit be not distinctly and expressly averred in that part of the bill, the defect cannot be supplied by averments in the other parts of the bill. Nor can the interrogating part of the bill supply the defects of the stating part ; for the interrogatories themselves must be confined to the facts alleged in the stating and charging parts of the bill, and can bring in no new fact. The stating part of the bill must state a case upon which, if admitted by the answer, a decree in favor of the complainant can be made. The charging part of the bill is not essential to its completeness. It is, in fact, only a portion of the stating part. It is a statement of charges and pretenses. Charges consist of allegations which the complainant does- not know to be true, or is not able to prove ; but which he suspects to be true, and as to OF PLEADINGS IN SUITS IN EQUITY. 65 which he wishes to have the answer of the defendant. Charges are also sometimes used in stating, as a conclusion of law, the relief to which the complain- ant thinks himself entitled. Pretenses are used when some defense is anticipated as likely to be set up, and the complainant alludes to it, charging that it is a mere pretense, and stating matter to avoid it. By such means the complainant compels the defendant to answer the charges, and to disclose the truth as to the pretended defense. After the statement and the charges, the bill next requires the defendant to make discovery, that is, to give answer on oath, in respect of the several matters specifically stated and charged ; and, in the case of executors, trustees, and others administering property fiducially, to set forth accounts of the property under their administration, and to give a list of books, accounts, and documents relating to the matter of inquiry. With a view to this discovery of facts, the bill contains an interrogating part In this part the statement and charges and pretenses are converted into a series of interrogatories, framed on the prin- ciple that without the interrogatories, which must be answered specifically, the defendant would answer evasively. By the 43d rule of practice for the courts of equity of the United States, to be found in the appendix of this volume, the interrogatories are placed at the end or foot of the bill. After the interrogating part, the bill prays for the relief to which the plaintiff thinks that the case stated in the bill entitles him, and concludes with a prayer for general relief, under which any relief may be given to which a title is made out at the hearing. It is always best not to trust to the prayer for general 66 OF PLEADINGS IN SUITS IN EQUITY. relief, but the specific relief sought should be ex- pressly prayed; and this may be done in the alter- native, so that if the court should not think that the case made out justifies the relief first asked for, yet the plaintiff may have some other to which he is entitled. And, in conclusion, the bill prays process of subpoena against the defendants to compel them to appear and put in an answer in writing. The bill is signed 'by tlie plaintiff or his counsel, or by both, and is filed with the register of the court of equity. The frame of a bill, with its several technical parts, has thus been described. But the well estab- lished principles of equity pleading require nothing more than a simple statement of the complainant's case, with a prayer for relief and for process of sub- poena. In theory the bill is as simple as it can be; and the practice should conform to the theory, never using any of the adventitious parts of the bill, except where the particular case may require it, to unveil the transaction fully to view. In accordance with the prayer of the bill, the clerk of the court of equity issues a writ, under the seal of the court, called a subpoena, by which the defendant is required to appear and answer the bill. If the defendant appears according to the require- ment of the subpoena, he then makes his defense according to the forms established in equity pleading. And the exigencies of justice, as administered by a court of equity, require several forms of defense for the protection of defendants. These forms of defense will next be considered. If it shall appear, from the complainant's own statement of his case in the bill, that there is nothing OF PLEADINGS IN SUITS IN EQUITY, 67 to warrant the interference of a court of equity, the proper course for the defendant is to demur to the bill for insufficiency, and demand the judgment of the court whether the suit shall proceed at all, or the defendant make answer thereto. This mode of defense is called a demurrer. If the bill be sufficient in its statements and charges to warrant the interference of equity, but the defendant knows matters, not appearing on the face of the bill, which affi^rd a reason why the suit should be either dismissed, barred, or delayed, it is the proper course for the defendant to meet the bill by a state- ment of these matters. Or if some particular matter stated in ' the bill, which is essential to the plaintiff's case, be false, this matter should be met by a denial. In such case the judgment of the court is demanded whether the defendant shall be compelled to answer further. This mode of defense is called a plea. If the defendant has no claim, or disowns any, to the subject of the demand made in the bill, his proper course is, to disclaim all right and title to the matter in demand, and pray judgment of the court, that he be dismissed with allowance of his costs. This mode of defense is called a disclaimer. Where neither a demurrer, nor a plea, nor a dis- claimer is pleaded to a bill, the suit proceeds, in its more common course, by the defendant's answering the allegations and the charges in the bill, and de- manding the judgment of the court on the whole case made on both sides. The defendant must answer dis- tinctly, fully and completely, without needless prolix- ity, positively and directly, and not by way of argu- ment, to the best of his knowledge, information and belief, every statement, charge, pretense and interjroga- 68 OF PLEADINGS IN SUITS IN EQUITY. tory in the bill, by either admitting, traversingj confess-, ing and avoiding, or ignoring, all the .facts stated and charged. And the defendant must answer, not accord- ing to the information which he actually possesses at the time the bill is filed, but according to all the infor- mation which he has, and can procure from his books, his agents and all the means under his control. This mode of defense is called an answer. If an answer neither admits nor denies the allegations of the bill, they must be proved upon the final' hearing, (i Gill & Johns. 503.) After the answer is filed, the plaintiff may, if he is satisfied with the defendant's answer, have the cause heard on the bill and answer ; in which case, he admits the answer to be true in all respects. Or he may file a replication, which is a general denial of the facts stated in the answer, requiring the facts to be proved. Or he may except to the answer, for want of fullness, in order to compel further answer. If further answer be put in, the amended answer is as though it had been put in at first, and liable to be so treated by the plaintiff. After the replication, the pleadings are ended, and the case is said to be at issue. At first view, the three modes of defense, by demurrer, plea and answer, may seem needlessly to divide the ground of defense in equity causes. That the disclaimer is necessary is too obvious to need proof And as the other three forms of defense ad- duce matters which are 'different in the nature of things, and have different effects in reason and justice, they are necessary in order to avoid confusion and insure definiteness in practice. There are certain rights of defendants in equity, which cannot be ade- OF PLEADINGS IN SUITS IN EQUITY. 69 quately protected, except by demurrers and pleas. The great aim in equity procedure is to procure from the defendant, as a sworn witness in the case, an ad- mission of the case made by the bill, either in aid of proof or to supply the want of it, and to avoid ex- pense. To this end, an answer from the defendant is the great object to be obtained by a suit in equity, as a means towards a decree for relief Equity pleadings, therefore, center around the answer. The answer is what the plaintiff especially seeks, and what the de- fendant especially avoids. The demurrer and the plea are the modes of defense used by the defendant, against being compelled to answer. The demurrer shows, from the face of the bill, that the plaintiflF is not entitled to an answer or discovery of the matters sought by him. And the plea shows the same thing, either by stating new matter not contained in the bill, or by denying some essential facts. If the demurrer or plea be allowed by the court, the defendant escapes an answer, which it is his great purpose to accomplish. For example, if a plaintiff sets out his right to an estate, and prays a discovery of some particular facts respect- ing the title, and the defendant, by plea, avers that he is a bona fide purchaser for a valuable consideration' without notice, he will be protected by such plea from the required discovery. So where a person avers his right to a share in a certain trade as a partner, and as such calls for a discovery and account ; and the de- fendant denies, by plea, the fact of the partnership, he will be protected by such denial from the discovery and account. In both of these cases, it would be prej- udicial to the defendant to make the discovery sought by the bill, either of the particulars showing defects in his title, or of the account of the condition of his busi- 70 OF PLEADINGS JN SUITS IN EQUITY. ness which the plaintiff avers is in partnership with himself. Therefore the defendant pleads, so as to show that the plaintiff has no right to the discovery, and thereby breaks up the whole case without injury to himself This function of defense by plea, places under strict regulation the jurisdiction exercised by courts of equity in compelling discovery. But the function of the ,demurrer and of the plea is not only to prevent a discovery which may be prejudicial to the defendant, where the plaintiff has no right to dis- covery, but also to interrupt, at an early stage, any cause which must ultimately end in nothing, and thereby save the expense and vexation, and delay which would result from putting in a full answer, and which, in most cases, would be followed by taking testimony and a final hearing on the case as disclosed by both parties. Such is an outline of equity pleading, and of the re- spective functions of the several forms of pleadings. A rigid technical construction of equity pleadings is not required. But every material allegation must be put in issue by the pleadings, so that the parties may be apprised of the essential inquiry, and be enabled to collect testimony to meet the issues of fact. The modern policy of equity pleadings is to bring out the whole case in the bill and answer, and not to let the case run out into lengthened pleadings as at common law, which was the earlier practice in chan- cery. According, therefore, to the present practice, the pleadings close with the replication, when it is a general one, as it almost always is. In ancient prac- tice, a special replication was used to meet any new matter which the defendant might introduce into his plea or answ^er. The consequence of this special repli- OF PLEADINGS IN SUITS IN EQUITY. 71 cation was a rejoinder by which the defendant asserted the truth and sufficiency of his answer, and traversed every material part of the replication. And if the rejoinder disclosed any new matter which required an ansvv^er, the plaintiff put in a surrejoinder, to which the defendant, in his turn, put in a rebutter. The some real, and the many imaginary evils of these proceed-, ings occasioned an alteration in the practice. In the place of special replications, amendments of the bill have been substituted, by which the rjew matter, for- merly presented in a special replication and in a sur- rejoinder, is inserted in the bill, and the defendant can then put in a further answer. So that the bill con- tains, by this mode of amendment, the whole case of the complainant, and the answer contains the whole defense of the defendant. In courts of equity, mispleading in matter of form is never allowed to prejudice any party. And mistakes may be corrected, impolitic admissions suppressed, additional facts added, and alj other things done which are needful to insure a hearing on the substantial merits of the case set forth in the bill and answer. Thus far equity pleading has been treated as if there were but one kind of bill. Only original bills praying for relief, and the defenses appHcable to such bills, have been considered, because they are the most usual in courts of equity, and the principles of pleading which govern them regulate all other bills and defenses, sub- ject to some exceptions and modifications. If, in the outset, the different kinds of bills had been enumerated, it would have produced perplexity and confusion, by dividing attention between a multiplicity of objects, differing only in peculiarities which it is needless to notice in a general survey of the system of equity 72 OF PLEADINGS IN SUITS IN EQUITY. pleading. But this survey would be very imperfect if it did not, at some stage, remark upon the different kinds of bills which the exigencies of litigation in courts of equity render needful, and point out their relation to the general scheme of equity pleading. The different kinds of bills and their functions in equity procedure will, therefore, be now considered. There are in the scheme of pleading which the courts of equity have devised for the conduct of litiga- tion two great classes of bills — those which are original, and those which are not original. Original bills are those which relate to some matters not before litigated in the court by the same persons standing in the same interests. Bills not original are those which relate to some matter already litigated in the court by the same persons, and which are either an addition to or a con- tinuance of an original bill, or both. These two great classes of bills, original and not original, may each be divided into other classes. Original bills are divided into those which pray for relief and those which do not pray for relief. All bills may, in a certain sense, be said to pray for relief. But, in the sense of courts of equity, such bills only are deemed bills for relief which seek from the court in that very suit a decision upon the whole merits of the case set forth in the bill, and a decree which shall ascertain and protect present rights or redress present wrongs. All other bills, which merely ask the aid of the court against possible future injury, or to support or defend a suit in a court of law, are deemed bills not original. Original bills praying for relief may themselves be divided into two kinds, i. Bills praying the decree of the court in regard to some right claimed by the defend- OF PLEADINGS IN SUITS IN EQUITY. 'J2) ant, or in regard to some wrong done in violation of the complainant's right 2. Bills of interpleader, where the person filing the bill claims no right in opposition to the rights clairned by the persons against whom the bill is exhibited, but prays the decree of the court touching the rights of those persons for the safety of the person exhibiting the bill, thereby compelling those persons to litigate the matter between them, that there may be a decree. Original bills not praying for relief are of two kinds. I. Bills for discovery of facts resting in the knowledge of the party to a suit at law against whom it is exhib- ited, or of deeds, writings, or other things in his cus- tody or power. 2. Bills to examine witnesses de bene esse, and bills to perpetuate testimony. Bills not original are divided into two classes, i. Bills for an addition to or continuance of an original bill. 2. Bills for the purpose of cross litigation, or of controverting, or suspending, or reversing some decree or order of the court, or carrying it into execution. It is at once apparent that all these different bills are determined in their respective characters by the diflFerent purposes for which they are exhibited, and consequently have a substantial, and not a mere tech- nical, difference. They all subserve the purposes of justice as administered in courts of equity. All these different kinds of bills are fully explained by Mitford, and forms of them are among my additions to this vol- ume, in the fourth part of the chapter on practice. Having now presented an outline of the scheme of equity pleading, it will be profitable to explain the important difficulties which have occurred in applying its rules in cases of equity administration. The modern practice of making all defenses by 74 OF PLEADINGS IN SUITS IN EQUITY. answer has led to great confusion ; and questions in pleading have arisen so paradoxical that judges, per- plexed and bewildered, have hardly known how to decide them. These perplexities culminated in the case of Bayley v. Adams (6 Ves. jr. 586), which came before Lord Chancellor Eldon, in the year 1 802, It is a rule in equity pleading that if any matters be inquired after by the interrogatories in the bill which, if true, as alleged in the bill, would invalidate the plea, the plea must be accompanied by an answer to these interroga- tories denying the correctness of the statement of the bill on these points. Such form of defense is called a plea supported by an answer. In the case of Bayley V. Adams the statute of limitations supported by an answer was pleaded. The plea of the statute of limita- tions contained no denial of the facts of the bill neces- sary to be denied in order to make it a good defense, but the answer in support of the plea did contain such denial. And the question arose whether the charges in the bill £)ught to have been met by way of averment in the plea, as well as by averment in the answer. It was maintained by the plaintiff that the plea must con- stitute a complete bar to the suit, and must therefore by averment answer the charges in the bill which, if true, would avoid the plea. Because, if the plaintiff takes issue upon the plea, and it does not contain a complete answer to the bill, the plea may be proved, and yet the case stated by the bill may entitle the plaintiff to succeed. It was admitted by the defendant that the answer in support of the plea must deny the facts in the bill which would avoid the plea, but that it was not necessary to make the denial by the plea and the answer both, such repetition being superfluous. Lord Eldon was at a loss how to dispose of the OF PLEADINGS IN SUITS IN EQUITY. yr question presented upon the sufficiency of the defend- ant's pleading. " The first difficulty upon that (said he) is how to consider that record filed by the defendant, consisting partly of what is called a plea, partly of what is called an answer, as in a correct sense either a plea or an answer. The office of a plea in bar at law is to confess the right to sue, avoiding that by matter dehors, and giving the plaintiff an acknowledgment of his right independent of the matter alleged by the plea. The plea alleges some short point upon which, if the issue is joined-, there is an end of the dispute. In this court, in general cases, not classed among those where certain averments seem to have been required both by the plea and the answer, but where the defendant pro hac vice, for the sake of the argument, admits the whole bill, I have understood the rule to be the same here as at law, that the plea admitting the bill interposes matter which, if true, destroys it, and upon the truth of which the plaintiff is at liberty to take issue. Cases have arisen in which it has been thought necessary both to plead and to repeat the assertions of the plea in an answer- that is, as technically expressed, the plea is supported by an answer." Lord Eldon, in his perplexity, declaring that the pleading filed by the defendant v/as in a correct sense neither a plea nor an answer, ordered the pleading to stand for an answer, with liberty to except. Though Lord Eldon in that case evaded the decis- ion of the question whether the plea as well as the answer should contain averments negativing the cir- cumstances averred in the bill in avoidance of the de- fense, it is now the established doctrine that both the plea and the answer in support of it, when such form of defense is made, must contain such negative aver- 76 OF PLEADINGS IN SUITS IN EQUITY. ments, as will appear, at the proper place, in Mit- ford In order to free equity pleading from the confusion caused by mixed defenses, partly plea and partly an- swer, to use the expression of Lord Eldon, it is neces- sary to advert to a peculiar element in equity pleading which is wholly alien from the nature of pleading, bear- ing no logical relation of either denial or of confession and avoidance, as all defenses must, to the cause of suit, but only the probative relation of proof, being not de- fense, but evidence. The theory of equity procedure — and it is a distinguishing basis of equity relief — is, that the defendant is a witness in the suit, as well as a party, made such by the plaintiff, to get proof which cannot be got otherwise, or at least so conveniently or so cheaply. And the answer of the defendant, so far as it is responsive to the bill — for to that extent he is made a witness by the plaintiff — is evidence in the cause either for the defendant himself or the plaintiff, as it may turn out. It is this element of proof which has introduced perplexities, anomalies, and contradictions into the scheme of equity pleading, embarrassing the administration of equity. If Lord Eldon had discrim- inated in the pleadings in the case of Adams v. Bayley the two elements of defense and of discovery, the first contained in the plea and the other in the answer, he would at once have seen that the plea, in order to be complete as a plea in bar, must contain all the negative averments necessary to meet the matters of avoidance charged in the bill in anticipation of the defense, and that the answer was only evidence in support of the defense, and not a part of it ; . and being no part of the plea, the defect in the plea was not cured by the answer, and consequently the pleadings did not OF PLEADINGS IN SUITS IN EQUITY. •J'J put in issue the matter of avoidance charged in the bill. By the common law pleading, which forms succes- sive issues and never simultaneous ones, the plaintift's case is first in his declaration, then in his rephcation, then in his surrejoinder, and next in his surrebutter, provided a demurrer, which raises only a question of law, be not pleaded, at any step, by either party. And only the question involved in one issue, from the plea to the surrebutter, whichever issue the pleadings may stop at, is the case to be tried, and evidence only to that issue can be adduced. But as by modem equity pleading all that, at common law, can be stated in the different successive pleadings by the plaintiff" can be put into the bill, and all the defendant's defenses can be put into the answer, simultaneous issues may be formed, to all of which evidence can be adduced ; and as discovery from the defendant is a species of evidence which the plaintiff" can require, the question of the extent of the discovery, whether to the whole case pre- sented by the bill and answer, or only to any single point raised by a plea, which must be first disposed of, while all points in the cause which are subordinate and dependent upon it are suspended until it is tried and decided is the important inquiry. In other words, whether, if a defendant submits to answer, he must answer fully. The right of discovery does not attach to an issue raised by demurrer, because the facts as stated in the bill are admitted by the demurrer, and only a question of law is raised by it. But the right of discovery attaches generally to every issue of fact, whether raised by plea or answer, and is commensurate with the ques- tion involved in the issue. And if the defendant, after 78 OF PLEADINGS IN SUITS IN EQUITY. replication by the plaintiff to his plea, fails to prove the truth of the plea, he will be compelled to give the discovery required by the bill, not by way of formal an- swer including his own case, but by way of mere answers to interrogatories put for the purpose of eliciting it. If the plea be one where the defendant cannot be required to make discovery of the substantial facts involved in the plea, such as a purchase for valuable consideration without notice, he may nevertheless be required to make discovery of facts which tend to prove constructive notice, if such facts are charged iti the bill, and cannot claim the right to make no dis- covery at all by which his title may be affected. So that the question, as to what facts pertaining to an issue the defendant must make discovery, often involves very subtle distinctions. Where a defendant defends by answer, whether from necessity or choice, he thereby submits that all parts of the case, principal and subordinate, shall go .to trial simultaneously, and must therefore make full discovery in regard to every point. If, for ex- ample, a bill prays for an account, and the defendant, by plea, insists upon a release of that account, the fact of the release will go to trial in the first instance upon evidence and discovery confined to it, and the question of account will be suspended, and the right to discovery in regard to the account also. But if in the same case the defendant submit to answer the bill, and by his answer pray the same benefit of the release as if he had. pleaded it in bar, he will be entitled to that benefit at the hearing of the cause ; but he can- not, in the interim, refuse such discovery as may be relevant and material to the question of account alone, and which, if the release be supported, will in OF PLEADINGS IN SUITS IN EQUITY. 79 result prove useless. For as by defending by answer all points, the subordinate one of account is to come on simultaneously with the one of release for trial, the right of discovery as to the account attaches, be- cause the plaintiff must come fully prepared for such trial by all the evidence within his power. The plaint- iff's case, when it is defended by answer, embraces every point which he makes by his bill, whether for the purpose of establishing his case, or of controverting the truth' or validity of the defense. In an answer, which embraces all the defenses which might have been made by plea, the exigencies of equity adminis- tration may require that the trial of one point, or more than one, in a cause be suspended until some partic- ular point shall have first been decided, because such decision may exclude the other points from adjudica- tion. And the order in which the points should be decided, so as to protect the defendant from claims founded on untenable averments in the bill, is often so uncertain upon the pleadings, as to expose the court to the necessity of ordering amendments on both sides ; and both solicitors and judges all the while seem to be pursuing a tentative course of procedure, rather than following fixed rules, as justice, which must always decide upon the same rules, requires. The difficulty of correlating and adjusting the ele- ment of discovery with the element of defense, in the scheme of equity pleading, has led to great confusion in practice. It was the want, as has been already shown, of distinguishing the two elements in the pleading on the part of the defendant, in the case of Bayley v. Adams, Avhich produced the question, whether the pleading, which Lord Eldon said was partly plea and partly answer, should make the same So OF PLEADINGS IN SUITS IN EQUITY.' averment of denial twice, as must be done where the defense is by plea supported by answer. In the latter case, the plea, in order to be a good plea to the bill, must be a perfect defense to the point in the bill to which it is pleaded ; ' and the answer, as discovery, must support the plea, repeating the essential aver^ ments in the plea, as the plea is never evidence, as is discovery when in an answer it is responsive to the bill. A plea supported by answer is in fact a special answer ; and where upon argument the matter offered by way of plea is not properly supported by the an- swer, so that the truth is doubtful, the court in such case, will, instead of overruling the plea, order it to stand for an answer, and will pass the same order where the plea may be a defense, but has been informally pleaded, as in the case of Bayley v. Adams. And this may be done either with or without liberty to the plaintiff to except, according to the more or less imperfection of the pleading as an answer. And if a plea is ojdered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers, unless, by the order, liberty is given to the plaintiff to except. This liberty is sometimes qualified so as to protect the defendant from any particular discovery which he ought not to be called upon to make. In discriminating the element of defense from the element of discovery or evidence, it is well to bear in mind that, in a court of equity, as well as in a court of law, causes of suit and defenses must have the like logical and legal relations to each other; because, in both courts, the relations between causes of suit and defenses must be governed by the laws which deter- mine rational thought. And, in both courts, the legal OF PLEADINGS IN SUITS IN EQUITY. 8 1 relation of defenses to causes of suit, must be deter- mined by the logical relation of either denial or confession and avoidance ; because every possible defense must either be denial or confession and avoidance ; whereas discovery or evidence has not a logical relation at all, but only a probative relation both to causes of suit and to defenses, either proving or disproving them. As the right of discovery does not attach to a question of law, defense by 'demurrer does not come into the consideration of the distinction between the element of defense and the element of discovery in equity pleading. By a rule of common law pleading, it is not necessary, for any end to be gained in a suit, to state matter of evidence, or matter which should come from the other side. This rule is excluded from equity pleading by the right of discovery. It is sometimes important to a plaintiff in equity to anticipate in his bill the defense or supposed defense, sometimes * admitting its truth, sometimes only suggesting it as matter relied upon by the defendant, without admit- ting its truth, and alleging matters which, if true, will avoid the legal consequences, or disprove the truth of the defense so anticipated. As, for example, the bill anticipates a deed as the defense, and charges that it was obtained by fraud. In such case, the charge of fraud in the bill would be in the nature of a replica- tion to the anticipated defense, and the onus of proving the alleged fraud would be upon the plaintiff. Therefore he would be entitled to discovery in regard to the imputed fraud. And if the bill charged special matters as evidence of fraud, the plaintiff would be entitled to discovery .in regard to the special matters also ; because the court must be informed of the 6 82 OF PLEADINGS IN SUITS IN EQUITY. special matters, in order to determine whether they show fraud. But the plaintiff cannot, by anticipating the defense, prevent the defendant from still pleading it. As, however, the plaintiff, in his bill, has charged fraud or other matter of avoidance to invalidate the defense, and has demanded discovery of the defendant in regard to the charge, the defendant cannot plead the mere matter in bar, as he would have done if the defense had not been anticipated. He must meet the charges in the bill. The form, therefore, of pleading to such bill is to plead the defense-^the deed — ^with averments negativing the allegations of fraud in the bill by which the defense is sought to be avoided. The plea is the formal defense which raises the issue upon the bill, and must therefore be a complete bar, containing all necessary averments negativing the charge of fraud. But it only raises an issue. It is not, like an answer responsive to a bill, evidence. It must therefore be supported by an answer responsive to the bill. And as evidence supporting the plea, the answer must repeat the negative allegations contained in the plea. By such pleading the requirements of the bill are fully met. Such plea is called an anomalous plea. Whether the plaintiff anticipates originally, in his bill, the defense, or introduces it by amendment after plea pleaded, the effect is the same. And the dis- covery, so far as respects fraud or other matter avoiding the defense, would be the same, whether the defense were made by plea or answer. Discovery does not attach to a pure plea, one that states new matter not in the bill as a reason why the suit should be dismissed, delayed, or barred ; because, as discovery is confined to the statements in the OF PLEADINGS IN SUITS IN EQUITY. 83 bill, discovery cannot be asked touching the matter of a plea which is not in the bill. And there is nothing to ask discovery about, as the plea admits the truth of the facts set forth in the bill. And if, after argument, issue be joined upon the truth of the plea, and the plea be found untrue, as the plea admits the truth of the plaintiff's case, there is an end of the dis- pute, and the plaintiff is entitled to a decree. No dis- covery therefore is required. But if, in such case, the plaintiff could not obtain complete relief as to other points in the case without further evidence, the court will supply the defect by allowing him to examine the defendant upon interrogatories as to those points, which, in consequence of the plea being overruled, became the plaintiff's case. The plea, so far as the admission it afforded, is not complete, and is only sus- pended for the purpose of trying the plea in the first instance, and does not take away the right of the plaintiff to that discoveiy which he will require in case the plea shall prove invalid or untrue. (See Wigram on Discovery, passim^ Though at an early stage in the developrnent of the equity jurisdiction of the Court of Chancery in England the pleadings in equity conformed very nearly to those at common law, yet until a late period a purely negative plea, which is so prominent in the scheme of common law pleading, was not allowed in equity. It was, for example, a question which under- went much vexatious discussion, whether a defendant could allege, in opposition to the claims of the plaintiff, as heir at law, that the plaintiff was not heir at law. But it is now settled that not only is such a negative plea, which merely goes to the person of the plaintiff, but that a negative plea which goes to the foundation 84 OF PLEADINGS IN SUITS IN EQUITY. of the suit and the right of the plaintiff, is good. As, for example, where a bill charges that the defendant is a partner, and seeks an account of the partnership transactions, a plea that the defendant is not a partner is now recognized as a good plea. As the defendant is not bound, upon any equity, to account, unless he is a partner, if he could not make defense upon the single point that he is not a partner, he would be compelled to account, though the plaintiff has no right to dis- covery. The character of a pleading must be deter- mined by the function it performs in the administration of equity. If, therefore, it be the true rule, as will be presently shown, that when a defendant defends by answer he must make full discovery to all the require- ments of the bill, it is a corollary of this that any defense against this right of full discovery must be considered a plea. In the whole series of reported cases in equity, from the earliest period, the embarrassment of the judges in regard to the pleadings is manifested by remarks in their respective opinions. As late as 1838, Lord Chan- cellor Cottenham, in Foley v. Hill (3 My. & Cr.482), said : " The whole machinery of pleading in equity is somewhat cumbrous and not quite well reduced to principle." It is more correct to say that the machin- ery of pleading has been made cumbrous by deviations in the practice of the courts from the true principles of the system. The want of wise judicial forecast, which induced courts of law to introduce general issue pleas,' to the exclusion of special pleas, into common law pleading, influenced courts of equity to substitute an answer, making all defenses simultaneously, in the place of successive alternate pleadings on the part of plaintiff and defendant respectively. A plaintiff was allowed to OF PLEADINGS IN SUITS IN EQUITY, 85 introduce into his bill what would, according to prin- ciple, come in a replication. Hence pleas with answers to support them, called anomalous pleas, became neces- sary defenses to such anomalous bills. And the fact that purely negative pleas were disallowed, by which a single point might be made upon matter on the face of the bill, contributed to the other destructive influences of true analytical pleading, and centered all defenses in the answer. Now the courts became embarrassed as to the form of statement of the different defenses, as in the case of Bayley v. Adams, and became equally as much embarrassed as to the question of discovery, and also as to the order in which the different points raised by the different defenses must be brought before the court, and sometimes whether and when all the points must be considered together. Within the past year, the Supreme Court of Rhode Island, in the case of Green v. Harris et al. (9 Rhode Island, 401-9), was much perplexed in regard to the question whether a plea in bar, which was a part of an answer, must con- tain all the necessary averments to meet the charges of fraud and error which were made in the bill, in antici- pation of the plea, so as to meet it, as it must do if pleaded separately as a plea and not as a part of an answer. The court decided that the plea, being part of an answer which contained averments denying the fraud and error, must be construed in connection with such averments. As the answer was a defense, and not mere discovery, like an answer in support of a plea, the negative averments were properly construed by the court in connection with the plea, making it complete as a defense when a part of an answer. But the most important difficulty with the courts has been in determining whether, if a defendant defends 86 OF PLEADINGS IN SUITS IN EQUITY. by answer, he must make full discovery, though the answer contain matter which, if pleaded separately as a plea, would have avoided discovery — as, for example, the denial of partnership. Though the general current of decisions had been, and continues to be, otherwise, yet, in the case of Ovey v. Leighton (2 Sim. & Stu. 234, anno 1825), Vice Chancellor Sir John Leach de- cided that a purchaser for valuable consideration with- out notice, submitting to answer, and not protecting himself by plea, must answer fully. And in the case of Earl Portarlington v. Soulby (7 Sim. 28, anno 1834), Vice Chancellor Sir L. Shadwell decided that the rule laid down in Ovey v. Leighton was correct. These decisions extend the rule that the defendant who defends by answer must answer fully to every possible case ; because the case of a purchaser for valuable consideration had been the one that was especially excepted by the courts from the rule. For even Lord Thurlow and Lord Eldon recognized the rule as extending to all cases, except that of a pur- chaser for valuable consideration, and the case where, by a full answer, the defendant would criminate him- self But it was the opinion of Lord Eldon, that it is better that such defenses be made by plea. In the case of Rowe v. Teed (15 Vesey, jr. 372), anno 1808, he said, speaking generally : " It will be infinitely better to decide that in this court the objection should be made by plea rather than by answer." This is man- ifestly the rule which logical consistency requires, be- cause an ■diU's^ ox prima facie admits that the defendant cannot plead ; therefore, to avoid this admission, it is best to defend by plea ; and it is also a more eco- nomical rule, because there is much less expense in bringing forward the objection by plea than by answer. OF PLEADINGS IN SUITS IN EQUITY. 87 In the whole series of judgments by courts in equity causes, both in England and this country, there is not one which has discussed with such comprehen- sive and precise discrimination the whole scheme of equity pleading, ascertaining the special function of each pleading, and exhibiting the fundamental prin- ciples, and the practical rules which constitute it a coherent system of interdependent functions, for bringing before courts the various points in equity causes, in the order in which the respective equities of the complainant and defendant require them to be de- cided, as the judgment of Chancellor Bland, of Mary- land, anno 1828, in the case of Salmon v. Clagett. (3 Bland Ch. R 125.) In this case, the defense was by answer, which contained several matters of defense that, if urged by way of plea, would have exonerated the defendant from making as full discovery as the requirements of the bill demanded ; and it was main- tained bythe defendant that such matter in avoidance, contained in the answer, would subserve the purposes of a plea. After the most searching examination of the reasons upon which the modem cases are founded, that allow an answer in avoidance to subserve the pur- poses of a plea, the chancellor overruled the decisions, as inconsistent with the fundamental principles of equity pleading, and decided that the ancient rule, that a defendant who submits to answer must answer as fully as the bill requires, should stand for the govern- ment of the proceedings of the Chancery Court of Maryland, without any exception whatever. The question arose upon exceptions to the answer, and a motion to dissolve an injunction in the case, which, according to the practice of the court, were taken up and considered at the same time. The 88 OF PLEADINGS IN SUITS IN EQUITY. ■ chancellor said, that though the allegations of avoid- ance would, at the hearing, if sustained by proof, con- stitute a complete defense against the claims of the plaintiff, yet, at that stage of the controversy, other considerations presented themselves. These considerations M^ere questions of pleading; the chief of vi^hich vi^as, whether the answer was a sufficient defense without making any further dis- closures. The object in calling for an answer is to serve the purposes of the plaintiff, not of the defend- ant. The answer called for by the bill is as to certain facts therein stated, and the defendant is required to say whether they are true or false, and to set forth all he knows about them. Such an answer, responsive to the bill, is equivalent to parol evidence as to all mat- ters where such testimony is available. Often it is the only evidence which the plaintiflF can procure to sus- tain his bill, and its impbrtance is none the less be- cause, by calling the defendant as a witness, the plaintiff makes his answer, so far as it is responsive to the bill, evidence against himself, if it should be ad- verse, which cannot be overturned by one witness alone. Such is the nature of the answer called for by the bill. It is evidence. The defendant is, by equity practice, bound to make such answer to the full re- quirements of the bill. There are certain equities; however, that excuse him from making such answer. According to the ancient rule of pleading, such de- fense against answering "should be made by a plea; and Chancellor Bland decided that such defense can be made available only by plea. But besides an answer merely responsive to the bill, there may.be one containing matter of avoidance; OF PLEADINGS IN SUITS IN EQUITY. 89 but, as this matter is not called for by the bill, it is not evidence as that is which is called for ; and if the plaintiff puts in a general replication, the defendant must prove them at the hearing, or they will be disre- garded. But if the plaintiff does not reply, or if he sets the case down to be heard upon bill and answer, then such allegations must be received as true; not because they constitute any part of the answer called for by the bill, but because the plaintiff, by setting the case down on bill and answer, or refusing to reply, has precluded the defendant from proving them; and, therefore, by that act, he makes a tacit admission of their truth, and they are accordingly received as ad- missions. We will have a very inadequate appreciation of equity pleading, as a means of presenting and raising for consideration and judicial adjustment, the several points in complex equity causes, if we consider only the separate functions of the different pleadings ; for, besides the different grounds of defense which a de- fendant may set forth, and rely upon by demurrer, by plea, by answer responsive to the bill, or an answer in negation or avoidance of it, there may be found, at the hearing, a substantial defense arising out of the whole case, which has not, in any "way, been specially advanced and relied upon by the defendant in his pleadings. A defendant may, for example, in his an- swer, rely upon lapse of time, as a defense against a stale claim ; but, if he should have been entirely silent in his pleadings, as to lapse of time, he may have the benefit of the presumption of satisfaction arising from lapse of time at the hearing. This reliance upon such presumption, is, therefore, a mode of defense which go OF PLEADINGS IN SUITS IN EQUITY. shows itself at the hearing, upon a consideration of the whole case, and not from anything directly alleged by the defendant in his pleadings. In accordance with this comprehensive view of pleading as a practical scheme, presenting for adju- dication the full merits of equity causes. Chancellor Bland says, in the case of Salmon v. Clagett, " There are, then, five modes of defense of which a defendant may avail himself, according to the nature and exi- gencies of his case : i, a demurrer ; 2, a plea ; 3, an an- swer, properly so called ; 4, a negation or matter in avoidance embodied in the shape of an answer; and 5, a defense found at the hearing as the production of the whole case as then presented for adjudication. Each of these modes of defense is strikingly distin- guishable from the rest, and it is of importapce that they should, in no manner, nor in any stage of the proceedings, be confounded with each other." If, , after appearance, the defendant fails to make any defense whatever, process may be issued against him for the contempt, or the bill may be taken pro confesso. If he makes defense by answer, he must an- swer as fully as the bill requires. If he answers im- perfectly or evasively, and the plaintiff wishes all the material matters of his bill fully answered, his remedy is by taking exceptions to the answer, which will bring the question of the insufficiency of the answer before the court. The determination of this question in- volves the preliminary inquiry, whether the plaintiff making the demand has the capacity to make it ; and also, whether his case is such an one as gives him any claim to an answer. Every bill necessarily assumes that the plaintiff has these requisites. And an objec- OF PLEADINGS IN SUITS IN EQUITY, 91 tion to the jurisdiction of the court, or to the capacity of the plaintiff, may be presented in any form, and at any time. It may be made by demurrer, plea or an- swer, or may be taken advantage of at the hearing. And a denial of the jurisdiction does not forbid all inquiry into the nature of the case, for a clear under- standing of it is necessary, in order to determine whether it is a case of which the court has jurisdiction. And if the fact does not satisfactorily appear from the proceedings, on a plea, it may be established by proof on the trial of the plea, or upon a full disclosure at the hearing ; for, whenever it appears to the court that it has no jurisdiction of the case, or that the plaintiff has no capacity to demand what he asks, it should not compel the defendant to answer, or give relief to the plaintiff. These preliminary considerations necessarily enter into the question of the obligation of the de- fendant to answer, no matter when and how raised. There is a question connected with the doctrine of the relation of discovery to defense, that should be considered at this point in the analysis of pleadings in equity. Discovery is only evidence in the suit, and to be Evidence it must be under oath, because the un- sworn testimony of a witness is not legal evidence, and cannot be received as such by the court, even with the consent of parties. Where, therefore, the plaintiff, by his bill, waives an oath to the answer, he does not ask for discovery, and whatever the defend- ant may file as his answer, even if it be an answer on oath (52 111. R. 510), is only a pleading putting in issue the allegations of the bill. Such an answer can- not be excepted to, because the right of exception pertains to discovery and not to defense. Where the 92 OF PLEADINGS IN SUITS IN EQUITY. defense is insufficient, the demurrer is the remedy to test it as a pleading. Discovery is for the benefit of the plaintiff, and not of the defendant ; and where the defendant has not answered fully, the plaintiflF has a right, without any order of the court, to except, so as to obtain full discovery. Where the court allows a plea to stand for an answer, with liberty to except, where an answer on oath is not waived by the bill, the plaintiff" is not obliged to except for a further an- swer, but may file his replication and take proofs in regard to the facts alleged in the bill, in the same manner as if the facts stated in the plea had been brought forward originally by answer. Where the bill waives an oath, and a plea is allowed to stand for an answer, liberty to except is never allowed in the order by the court, because the plaintiff has not called for discovery. When a pleader makes, by answer, those defenses which, according to the respective functions of the dif- ferent pleadings, should be made by plea, the defenses, though they may be less technical, must, nevertheless, be substantially in the form of a plea, and present the same logical opposition to the bill which they would do if made by plea. And in cases where the plea must be supported by an answer, the allegations which would constitute such answer must be made in support of the defenses, and appear as a part of the discovery made by the answer in response to the bill. Had this formal requisite of making defenses by answer been observed in the pleading in the case of Bayley v. Adams, Lord Eldon would not have been puzzled as he was. But the truth is, that though Lord Eldon was skillful in applying the principles of OF PLEADINGS IN SUITS IN EQUITY. 93 equity to the exigencies of justice involved in equity causes, he was not, like Mitford, a master of equity pleading, hence his confusion in the case of Bayley v. Adams. The Constitution of the United States declares that the judicial power of the United States shall ex- tend to controversies between two or more States; and the judiciary act of September, 1 789, by which the judicial power was organized by Congress, declares that the Supreme Court shall have exclusive jurisdic- tion of such controversies. And, as the Constitution recognizes as a fundamental principle of American jurisprudence, the distinction between law and equity, the Supreme Court has adopted common law pro- cedure for common law cases, and equity procedure for equity cases, as these different procedures had been established in England, from which we had derived our twofold jurisprudence. Hence, because questions concerning the boundaries of manors, lordships and counties palatine, were cognizable in the High Court of Chancery of England, by analogy, the Supreme Court has adopted equity pleading and practice as ap- propriate to controversies in regard to their boundaries between the sovereign States of the federal union. This was settled, as the proper practice, in the case of Rhode Island v. Massachusetts (12 Peters' R. 735-739, anno 1838; 14 Peters' R. 257, anno 1840). In that case. Chief Justice Taney said : " It is the duty of the court to mold the rules of chancery practice in such manner as to bring the case to a final hearing on its merits. In ordinary cases between individuals, the Court of Chancery has always exercised an equitable discretion, in relation to its rules of pleading, wherever 94 OF PLEADINGS IN SUITS IN EQUITY. it has been found necessary to do so for the purposes of justice." So that it is the settled doctrine of fed- eral jurisprudence, that a question of boundary be- tween two sovereign States of our federal union, litigated in the Supreme Court, is one of equity juris- diction and governed by Equity pleading and practice. This enhances the importance of equity procedure. The aim of this dissertation, as a supplement to the treatise of Mitford, is to exhibit equity pleading as a coherent system of harmonious principles and definite forms with special functions, all co-operating to present cases in equity in so definite a manner that they can be conducted to a final hearing upon their full merits, and at the same time to expose the errors of decisions of courts that have introduced perplex- ities into practice, because of confounding the respect- ive functions of the plea and the answer, instead of adhering to the logical principles of pleading in the original integrity of the system. It should ever be borne in mind that the law does not consist of particular decisions, but of general prin- ciples which run through the cases and govern the de- cision of them. Especially ought this to be observed in regard to the system of pleading in both law and equity. The best treatises on every subject in law and in equity, but especially in law, have been more or less depreciated by editors in citing decisions of courts which tend rather to raise endless questions of doubt than to fix definite and unchanging principles that had been presented in the treatises as settled law. Such editorial work only diverts the mind of the stu- dent from law as a certain science, and keeps him ever OF PLEADINGS IN SUITS IN EQUITY. 95 doubting, and never able to come to a knowledge of the true doctrines, and in practice genders only foren- sic strife. And the neglect of principles, and follow- ing cases, tends to bring both the bar and the bench to a low level as jurists. A TREATISE PLEADINGS IN SUITS IN THE COURT OF CHANCERY BY ENGLISH BILL. By JOHN MITFORD, Esq. The Late Lord Redesdale, (97). INTRODUCTION. Of the extraordinary jurisdiction of the Court of Cha7tcery ; and of the manner in which suits to that jurisdiction are instituted, defended, and brought to a decision. The chancery of England has various offices and jurisdictions. The most important jurisdiction is that which it exercises as a court of equity, usually styled its extraordinary jurisdiction, to distinguish it from those which are termed its ordinary jurisdictions, and are chiefly incident to its ministerial offices, and the privi- leges of its officers. The exercise of this extraordinary jurisdiction by courts distinct from those usually styled courts of com- mon law, to which the ordinary administration of jus- tice in civil suits is intrusted, seems to be, in a great degree, a peculiarity in the jurisprudence of this coun- try, but pervading the whole system of its judicial polity. The origin of these courts is involved in great obscurity ; * their authority has been formerly ques- tioned, and the subjects and limits of their jurisdiction were then but imperfectly ascertained. Time has given * On this subject, see Mr. Spence's very learned work on " The Equita- ble Jurisdiction of the Court of Chancery." See, also, Campbell's " Lives of the Lord Chancellors of England," vol. i, Introduction, 4th edition. (99) lOO EXTRAORDINARY JURISDICTION them full establishment, and their powers and duties have become fixed and acknowledged. If any doubt on the extent of their duties has occurred of late years, it has principally arisen from the liberality with which the courts of common law have noticed and adopted principles of decision established in courts of equity; a liberality generally conducive to the great ends of justice, but which may lead to great inconvenience, if the whole system of the administration of justice by courts of equity, the extent of their powers and means of proceeding, the subservience of their principles of decision to the principles of the common law, the pref- erence which they have allowed to common law rights where in conscience the parties have stood on equal grounds, and the defect in the powers of the courts of common law arising from their mode of proceed- ing, should not be fully considered, in all their con- sequences. ^ In the construction of every system of laws, the principles of natural justice have been first considered ; and the great objects of municipal laws have been to enforce the observance of those principles, and to pro- vide a positive rule where some rule has been deemed necessary or expedient and natural justice has pre- scribed none. It has also been an object of municipal law to establish modes of administering justice. I The wisdom of legislators in framing positive laws to answer all the purposes of justice has ever been found unequal to the subject; and therefore, in all countries, those_to whom the administration of the laws has been intrusted have been compelled to have recourse to natural principles to assist them in the ' See Lord Hardwicke's judgment in Wortley and Birkhead, 2 Ves. 573i 574. And see 6 Ves. 39. OF THE COURT OF CHANCERY. IQI interpretation and application of positive law, and to supply its defects ; and this resort to natural principles has been termed judging according to equity. Hence a distinction has arisen in jurisprudence between posi- tive law and equity ; but the administration of both has in most countries been left, at least in their superior courts, to the same tribunal. In prescribing forms of proceeding in courts of justice human foresight has also been defective ; and therefore it has been com- monly submitted to the discretion of the courts them- selves, to vaiy or add to established forms as occasion and the appearance of new cases have required. In England a policy somewhat different has pre- vailed. The courts established for the ordinary admin- istration of justice, usually styled courts of common law, have, as in other countries, recourse to principles of equity in the interpretation and application of the positive law : but they are bound to established forms of proceeding ; are in some degree limited in the ob- jects of their jurisdiction ; have been embarrassed by a rigid adherence to rules of decision, originally framed and in general retained for wise purposes, yet, in their application, sometimes incompatible with the principles of natural and universal justice, or not equal to the full application of those principles ; and the modes of pro- ceeding in those courts, though admirably calculated for the ordinary purposes of justice, are not in all cases adapted to the full investigation and decision of all the intricate and complicated subjects of litigation, which are the result of increase of commerce, of riches, and of luxury, and the consequent variety in the necessities, the ingenuity, and the craft -of mankind. Their sim- plicity, clearness and precision are highly advantageous in the ordinary administration of justice ; and to alter I02 EXTRAORDINARY JURISDICTION. them materially would probably produce infinite mis- chief : but some change would have been unavoidable if the courts of common law had been the only courts of judicature. Early therefore in the history of our jurisprudence the administration of justice by the ordinary courts appears to have been incomplete, and to supply the defect the courts of equity have exerted their jurisdic- tion : assuming the power of enforcing the principles upon which the ordinary courts also decide, when the powers of those courts or their modes of proceeding are insufficient for the purpose ; of preventing those principles, when enforced by the ordina^ courts, from becoming (contrary to the purpose of their original establishment) instruments of injustice ; and of decid- ing on principles of universal justice, where the inter- ference of a court of judicature is necessary to prevent a wrong, and the positive law, as in the case of trusts, is silent. ' The courts of equity also administer to the ends of justice by removing impediment^ to the fair decision of a question in other courts ; by providing for the safety of property in dispute pending a litiga- tion ; by preserving property in danger of being dissi- pated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests ; by restraining the assertion of doubtful rights in a manner productive of irreparable damage ; by pre- venting injury to a third person from the doubtful title of others ; and by putting a bound to vexatious and ' Principles of decision thus adopted by Sir Thomas Clarke, in Blackst. Rep. by the courts of equity, when fully es- 152. Pluraquequcsusu foricomfroiaU, tablished and made the grounds of sue- denique jujis scripti auctoritatem propter cessive decisions, are considered by those vetustatem obtinuerunt. Cic. de Invent, courts as rules to be observed with as lib. 2, c. 22 ; Heinecc. de Edict, prat, much strictness as positive law. See lib. I, c. 6, p. 129 ; Story's Eq. Jur. c. I, judgment of Sir Joseph Jekyll, quoted sec. 18. OF THE COURT OF CHANCERY. 103 oppressive litigation, and preventing unnecessary mul- tiplicity of suits ; and, without pronouncing any judg- ment on the subject, by compelling a discovery, or pro- curing evidence, which may enable other courts to give their judgment ; and by preserving testimony when in danger of being lost before the matter to which it relates can be made the subject of judicial investi- gation. ' This establishment, as before observedi, has obtained throughout the system of our judicial polity ; most of the branches of that system having their peculiar courts of equity,^ and the Court of Chancery assuming a gen- eral jurisdiction, which extends to cases not within the bounds or beyond the powers of other jurisdictions. ^ ' It is not a very easy task accu- lar jurisdictions, have also their peculiar lately to describe the jurisdiction of our courts of equity. courts of equity.* This general descrip- ' The Court of Equity in the ex- tion, though imperfect, and in some re- chequer chamber is also frequently con- spects inaccurate, is offered only for the sidered as a court of general jurisdic- purpose of elucidating the following tion, and in effect it is so, in a great de- treatise, in the course of which the sub- gree, though in principle it is not. For ject must be in many points more fully its jurisdiction is in strictness confined considered. to suits of the crown, and of debtors and " Thus the Court of Exchequer, es- accountants to the crown ; and a sug- tablished for the particular purpose of gestion, the truth of which the court enforcing the payment of debts due to will not permit to be disputed, " that the king, and incidentally administer- its suitor is a debtor and accountant to ing justice to the debtors and account- the crown," is still used to give it more ants to the crown, has its own peculiar extensive jurisdiction. This practice, court of equity.f The courts of Wales, as well as a similar fiction used to give of the Counties Palatine, J of London, general jurisdiction to the common law of the Cinque Ports, and other particu- court in the exchequer, and the fiction * As to the nature of equity jurisprudence and the extent of equity juris- diction, see Smith's Manual of Equity, Introduction, s. I ; Adams' Doctrine of Equity, Introduction, sth Am. ed. ; Story's Eq. Jur. cc. I, II, III. The mere fact that a case is in conformity with the principles of natural equity and justice is not sufficient to bring it within the jurisdiction of a court of equity. (2 Sumn. R. 409.) t By the stat. 5 Vict. c. 5, s. i, the equitable jurisdiction of the Court of Exchequer is transferred to the Court of Chancery. I The courts of the county palatine of Chester and the Principality of Wales have been abolished by the stat, 1 1 Geo. IV and i Wm. IV, c. 70, s. 14. 104 EXTRAORDINARY JURISDICTION The existence of this extraordinary jurisdiction, entirely distinct from the ordinary courts, though fre- quently considered as an enormity requiring redress, has perhaps prodiiced a purity in the administration of justice which could not have been effected by other means ; and it is in truth, in a great degree, a conse- quence of that jealous anxiety with which the princi- ples and forms established by the common law have been preserved in the ordinary courts as the bulwarks of freedom, and of the absolute necessity of preventing the strict adherence to those principles and forms from becoming intolerable. A suit to the extraordinary jurisdiction of the Court of Chancery, on behalf of a subject merely, is com- menced by preferring a bill, in the nature of a petition,' to the lord chancellor, lord keeper, or lords commis- sioners for the custody of the great seal ;" or to the king himself in his Court of Chancery, in case the per- son holding the seal is a party, ^ or the seal is in the king's hands. * But if the suit is instituted on behalf of the crown, ^ or of those who partake of its preroga- \ised to give jurisdiction to the Court of tical Register is mentioned by Lord King's Bench in a variety of civil suits Hardwicke (2 Atlc. 22) as a book, though of which it has not strictly cognizance, not of authority, yet better collected than may appear the objects of censure ; but most of the kind* they have probably had the effect of " As to the authority of a lord keeper, preventing that abuse of power which is see 5 Eliz. c. 18 ; and as to that of lords too often the consequence of the single commissioners, see I W. & M. c. 21. jurisdiction of one supreme court. " 4 Vin. Ab. 385 ; L. Leg. Jud. in ' 9 Edw. IV, 41 ; Prac. Reg. p. 57, Ch. 44, 255, 258 ; Jud. Auth. M. R. 182 ; Wyatt's ed. This book, and other 2 Prax. Aim. Cur. Cane. 463 ; Ld. Chan, books of practice, are only cited where Jeffries against Witherly. no other authority occurred, or where * I West. Symb. Cha. 194 b. they might lead the reader to further ' i Roll. Ab. 373 ; Att. Gen. v. Ver- information on the subject. The Prac- non, i Vem. 272, 370. * The "Forum Romanum" of Lord Chief Baron Gilbert should be studied by every student of equity jurisprudence. It casts a mixed light of principles and practice down the vista of equity jurisdiction, making mod- ern practice more intelligible by its historical antecedents. (See Am. ed.) OF THE COURT OF CHANCERY. 105 tive,' or whose rights are under its particular protec- tion, as the objects of a public charity, =" the matter of complaint is offered to the court by way of informa- tion, given by the proper officer, and not by way of petition. 3 Except in some few instances, •* bills and informations have been always in the English language ; and a suit preferred in this manner in the Court of Chancery has been therefore commonly termed a suit by English bill, by way of distinction from the proceed- ings in suits within the ordinary jurisdiction of the court as a court of common law, which, till the statute of the 4th Geo. II, c. 26, were entered and enrolled, more anciently in the French or Norman tongue, and afterwards in the Latin, in the same manner as the pleadings in the other courts of common law. Every bill must have for its object one or more of the grounds upon which the jurisdiction of the court is founded ; and as that jurisdiction sometimes extends to decide on the subject, and in some cases is only ancil- lary to the decision of another court, or a future suit, the bill may either complain of some injury which the person exhibiting it suffers, and pray relief according to the injury ; or, without praying relief, may seek a dis- covery of matter necessary to support or defend another suit ; * or although no actual injury is suffered, it may ' As to idiots and lunatics, see u. I, * There are some bills in early time s. I. in the French language. See Calen- " I C. in Cha. 158 ; Anon. 3 Atk. dars of Proceed, in Chan., printed un- 276. See I Swanst. 292. der authority of Commiss. on Public ' On the subject of informations, see Records, 1827. c. I, s. 3. * It is not allowable in effect to unite in one bill, a bill for relief, and a bill for discovery on a matter which is quite distinct from that relief, although both be connected with the same circumstances. So that in a bill for a receiver, pending a litigation as to probate, a plaintiff cannot have a discovery in reference to the merits on that litigation. (Wood v. Hitch- ings, 3 Beav. 504.) I06 EXTRAORDINARY JURISDICTION complain of a threatened wrong, and stating a prob- able ground of possible injury, may pray the assistance of the court to enable the plaintiff^ or person exhibit- ing the bill, to defend himself against the injury when.- ever it shall be attempted to be committed. As the Court of Chancery has general jurisdiction in matters of equity not within the bounds or beyond the powers of inferior jurisdictions,' it assumes a control over those jurisdictions, by removing from them suits whicli they are incompetent to determine. To effect this, it requires the party injured to institute a suit in the Court of Chancery, the sole object of which is the removal of the former suit by means of a writ called a writ of certiorari; and the prayer of the bill used for this purpose is confined to that object. The bill, except it merely prays the writ of cer- tiorari, generally requires the answer of the defendant, or party complained of, upon oath. An answer is thus required, in the case of a bill seeking the decree of the court on the subject of the complaint, with a view to obtain an admission of the case made by the bill, either in aid of proof, or to supply the want of it; a discovery of the points in the plaintiff''s case contro- verted by the defendant, and of the grounds on which they are controverted ; and a discovery of the case on which the defendant relies, and of the manner in which he means to support it. If the bill seeks only the assistance of the court to protect the plaintiff against a future injury, the answer of the defendant upon oath may be required to obtain an admission of the plaintiff's title, and a discovery of the claims of the defendant, and of the grounds on which those claims ' The court of equity in the exchequer chamber, though a particular, is not an inferior, jurisdiction. OF THE COURT OF CHANCERY. 107 are intended to be supported. When the sole object of a bill is a discovery of matter necessary to support or defend another suit, the oath of the defendant is required to compel that discovery. The plaintiff may, if he thinks proper, dispense with this ceremony, by consenting to or obtaining an order of the court for the purpose ; and this is frequently done for the con- venience of parties where a discovery on oath happens not to be necessary. And where the defendant is en- titled to privilege of peerage, or as a lord of parlia- ment, or is a corporation aggregate, the answer, in the first case, is required upon the honor of the defend- ant,' and in the latter, under the common seal.^ * ' Ord. in Chan. Ed. Bea. 105, 261 ; Anstr. 479) ; and so it appears does a 18 Ves. 470 ; I Ves. 470 ; i Ves. & B. Moravian (see 22 Geo. II, c. 30) ; and 187 ; I Jac. & W. 526. And see Rob- infidels are permitted to swear accord- inson v. Lord Rokeby, 8 Ves. 601, as to ing to the forms of the re-ligion which Irish peers. they profess, provided such forms con- 2 It may be observed, that although stitute an appeal to the Supreme Being, in ordinary cases the answer is required See the well-known cases of Omychund upon oath, other sanctions are in cer- v. Barker, i Atk. 21 ; s. c. 2 Eq. Gas. tain instances allowed in practice : a Abr. 397, and Ramkissenseat v. Barker, Quaker puts in his answer upon his i Atk. 51. A Jew makes oath upon the solemn affirmation and declaration (see Pentateuch (Robeley v. Langston, 2 7 W. & M. c. 34 ; 8 Geo. I, c. 6 ; Ord. Keble, 314 ; Anon, i Vern. 263) ; and in Cha. Ed. Bea. 247 ; Wood v. Story, a Mahometan upon the Koran. Stra. I P. Wms. 781 ; Marsh v. Robinson, 2 1104. * The answer of a corporation under seal will not avail the corporation as evidence at the hearing, as if by an individual on oath. An answer not under oath is merely a denial of the allegations of the bill, like the gen- eral issue at law, to put the complainant to the proof of such, allegations. (S Peters' R. in ; 6 Paige R. 59 ; Story Eq. PL s. 8750c, Redfield ed.) On a bill for discovery and relief, any members of the corporation, whether ofificers or simply corporators, may, so far as relates to discovery, be made defendants, and compelled to answer on oath, (i Metcalf R. [Mass.] 237, 239.) Where complainant, by his bill, waives an answer on oath, no answer or discovery in support of the plea is necessary ; and the defendant may plead the stated account in bar of the suit, without setting forth a copy of it, where the plaintiff seeks to impeach the account of fraud or mistake, I08 EXTRAORDINARY JURISDICTION To the bill thus preferred, unless the sole object of it is to remove a cause from an inferior court of equity, it is necessary for the person complained of either to make defense, or to disclaim all right to the matters in question by the bill. As the bill calls upon the defendant to answer the several charges contained in it, he must do so, unless he can dispute the right of the plaintiff to compel such an answer, either from some impropriety in requiring the discovery sought by the bill, or from some objecrion to the proceeding to which the discovery is proposed to be assistant ; or unless by disclaiming all right to the matters in ques- tion by the bill he shows a further answer from him. to be unnecessary.' A defendant to a bill may have an interest to support the plaintiff's case, or his interest may not be adverse to that claim ; he may be a mere trustee, or brought before the court in some character necessary to substantiate the suit, that there may be proper parties to it. In such cases, his answer may often be mere matter of form, submitting the subje.ct of the suit to the judgment of the court ; and if any act should be required to be done by him, desiring only to be indemnified by the decree of the court. ' In some cases a defendant may be interest in the matters in question. (See compelled to answer, though he has no c. II, s. 2, part I.) and states he has no counterpart, and prays that it may be set forth in the answer. (7 Paige R. 573 ; 5 Paige R. 26 ; 3 Paige R. 566.) The reason of this rule is, that unsworn testimony of a witness is not legal evidence, and cannot be admitted by the court, even with consent of parties. The answer, therefore, as evidence, would be a nuUity. And an answer in support of a plea is no part of the defense, but only evidence. Such a plea supported by an unsworn answer is a mere pleading to put in issue the allegations in the bill. (See 11 Paige, 543; 52 111. R. 510; also Dis- sertation on Pleading, prefixed to this edition.) OF THE COURT OF CHANCERY. 109 The grounds on which defense may be made to a bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various. The subject of the suit may not be within the jurisdiction of a court of equity; or some other court of equity may have the proper jurisdiction ; the plaintiff may not be entitled to sue by reason of some personal disability ; if he has no such disability, he may not be the person he pretends to be ; he may have no interest in the subject ; or if he has an interest, he may have no right to call upon the defendant concerning it ; the defendant may not be the person he is alleged to be by the bill ; or he may not have that interest in the subject which can make him liable to the claims of the plaintiff; and, finally, if the matter is such as a court of equity ought to interfere in, and no other court of equity has the proper jurisdiction, if the plaintiff is under no personal disability, if he is the person he pretends to be, and has a claim of interest in the subject, and a right to call upon the defendant concerning it; if the defendant is the person he is alleged to be, and also claims an interest in the subject which may make him liable to the demands of the plaintiff, still the plaintiff may not be entitled, in the whole or in part, to the relief or assistance he prays ; or if he is so entitled, the defendant may also have rights in the subject which may require the attention of the court, and call for its interference to adjust the rights of all parties ; the effecting complete justice, and finally determining, as far as possible, all ques- tions concerning the subject, being the constant aim of courts of equity. Some of these grounds may extend only to entitle the defendant to dispute the plaintiff's claim to the relief prayed by the bill, and no EXTRAORDINARY JURISDICTION may not be sufficient to protect him from making the discovery sought by it ; and where there is no ground for disputing the right of the plaintiff to the relief prayed, or if no relief is prayed, yet if there is any impropriety in requiring the discovery sought by the bill, or if the discovery can answer no purpose, the impropriety or immateriality of the discovery may protect the defendant from making it. The defense which may be made on these several grounds may be founded on matter apparent on the bill, or on a defect either in its frame or in the case made by it ; and may on the foundation of the bill itself demand the judgment of the court whether the defendant shall be compelled to make any answer to the bill, and consequently whether the suit shall pro- ceed ; or it may be founded on matter not apparent on the bill, but stated in the defense, and may on the matter so offered demand the judgment of the court whether the defendant shall be compelled to make any other answer to the bill, and consequently whether the suit shall proceed, except to try the truth of the matter so offered ; or it may be founded on matter in the bill, or on further matter offered, or on both, and submit to the judgment of the court on the whole case made on both sides ; and it may be more complex, and apply several defenses differently founded to distinct parts of the bill. The form of making defense varies according to the foundation on which it is made, and the extent in which it submits to the judgment of the court. If it rests on the bill, and on the foundation of matter there appa- rent demands the judgment of the court whether the suit shall proceed at all, it is termed a demurrer ; if on the foundation of new matter offered, it demands the OF THE COURT OF CHANCERY. Ill judgment of the court whether the defendant shall be compelled to answer further, it assumes a different form, and is termed a plea ; if it submits to answer generally the charges in the bill, demanding the judgment of the court on the whole case made on both sides, it is offered in a shape still different, and is simply called an answer. If the defendant disclaims all interest in the matters in question by the bill, his answer to the com- plaint made is again varied in form, and is termed a disclaimer. All these several forms of defense, and dis- claimer, or any of them, may be used together, if apply- ing to separate and distinct parts of the bill. A demurrer, being founded on the bill itself, neces- sarily ^admits the truth of the facts contained in the bill, or in the part of the bill to which it extends ; and therefore, as no fact can be in question between the parties, the court may immediately proceed to pro- nounce its definitive judgment on the demurrer, which, if favorable to the defendant, puts an end to so much of the suit as the demurrer extends to. A demurrer,* if allowed, consequently prevents any further proceed- ing. ' A plea is also intended to prevent further pro- ■ An amendment of a bill has been and it seems most proper, if the ground permitted by a court of equity after a of demurrer may be removed by amend- demurrer to the whole bill had been ment, to make a special order, adapted allowed ; but this seems not to have to the circumstances of the case. See been strictly regular (2 P. Wms. 300) ; c. II, s. 2, pt. i. * That is, a demurrer to the whole bill. If a partial demurrer is al- lowed, the bill is still in court. And on allowing a demurrer for want of parties, the court generally gives leave to amend the bill. See i Perkins' Daniell's Ch. Pr. 597-599, 4th ed. The Supreme Court of the United States has decided that a court may, instead of dismissing a bill brought to a hearing without making proper parties, give leave to make new parties ; and it set aside the decree of the Circuit Court, and remanded the cause with leave to make new parties. (7 Cranch R. 99.) See 53d Rule of Practice in Equity of Supreme Court, in Appendix to this volume. 112 EXTRAORDINARY JURISDICTION ceeding at large, by resting on some point founded on matter stated in the plea ; and as it rests on that point merely, it admits, for the purposes of the plea, the truth of the facts contained in the bill, so far as they are not controverted by facts stated in the plea. Upon the sufficiency of this defense the court will also give im- mediate judgment, supposing the facts stated in it to be true ; but the judgment, if favorable to the defend- ant, is not definitive ; for the truth of the plea may be denied by the plaintiff by a replication, and the parties may then proceed to examine witnesses, the one to prove and the other to disprove the facts stated in the plea. The replication in this case concludes the plead- ings ; ' though, if the truth of the plea shall not be sup- ported, further proceedings may be had, which will be noticed in a subsequent page." An answer generally controverts the facts stated in the bill, or some of them, and states other facts to show the rights of the defend- ant in the subject of the suit ; but sometimes it admits the truth of the case made by the bill, and, either with or without stating additional facts, submits the question arising upon the case thus made to the judgment of the court. If an answer admits the facts stated in the bill, or such as are material to the plaintiflF's case, and states no new facts, or such only as the plaintiff is willing to admit, no further pleading is necessary ; the answer is considered as true, and the court will decide upon it. But if the answer does not admit all the facts in the bill material to the plaintiff's case, or states any fact which the plaintiff is not disposed to admit, the truth of the answer, or of any part of it, may be denied, and the sufficiency of the bill to ground the plaintiff's title to the relief he prays may be asserted, by a repli- ' See c. lU ' See c. II, s. 2, pt. 2. OF THE COURT OF CHANCERY. 1 13 cation, which in this case also concludes the pleadings according to the present ' practice of the court. If a demurrer or plea is overruled upon argument, the de- fendant must make a new defense. This he cannot do by a second demurrer of the same extent, after one demurrer has been overruled ; for although by a stand- ing order of the court a cause of demurrer must be set forth in the pleading, yet if that is overruled, any other cause appearing on the bill may be offered on argu- ment of the demurrer, and, if valid, will be allowed ; the rule of the court affecting only the costs. But after a demurrer has been overruled, a new defense may be made by a demurrer less extended, or by plea, or answer; and after a plea has been overruled, de- fense may be made by demurrer, by a new plea, or by an answer : and the proceedings upon the new defense will be the same as if it had been originally made." A disclaimer, neither asserting any fact, nor denying any right sought by the bill, admits of no further plead- ing.3 If the sole object of a suit is to obtain a dis- covery, there can be no proceeding beyond an answer by which the discovery is obtained. A suit which only seeks to remove a cause from an inferior court of equity does not require any defense, and consequently there can be no pleading beyond the bill. Suits thus instituted are sometimes imperfect in their frame, or become so by accident before their end has been obtained ; and the interests in the property in litigation may be changed pending the suit in various ways. To supply the defects arising from any such circumstances, new suits may become necessary, to add to, or continue, or obtain the benefit of, the ' See c. III. • See c, II, s. 2, pt. 3., ' See c. II, s. 2, pt. I. 8 114 EXTRAORDINARY JURISDICTION original suit. A litigation commenced by one party sometimes renders a litigation by another party neces- sary, to operate as a defense, or to obtain a full de- ' cision on the rights of all parties. Where the court has given judgment on a suit, it will in some cases permit that judgment to be controverted, suspended, or avoided by a second suit ; and sometimes a second suit becomes necessary to carry into execution a judg- ment of the court. Suits instituted for any of these purposes are also commenced by bill ; and hence arises a variety of distinctions of the kinds of bills necessary to answer the several purposes of instituting, an original suit, of adding to, continuing, or obtaining, the benefit of a suit thus instituted, of instituting a cross-suit, and of impugning the judgment of the court on a suit brought to a decision, or of carrying a judgment into execution; and on all the different kinds of bills there may be the same pleadings as on a bill used for instituting an original suit. It frequently happens that, pending a suit, the parties discover some error or defect in some of the pleadings ; and if this can be rectified by amendment of the pleading, the court will in many cases permit it. This indulgence is most extensive in the case of bills, which being often framed upon an inaccurate state of the case, it was formerly the practice to supply their deficiencies, and avoid the consequences of errors, by special replications. But this tending to long and intricate pleading, the special replication requiring a rejoinder, in which the defendant might in like manner supply defects in his answer, and to which the plaintiff might surrejoin, the special replication is now disused for this purpose, and the court will, in general, permit a plaintiff to rectify any error, or supply any OF THE COURT OF CHANCERY. II5 defect in his bill, either by amendment, or by a supplemental bill ; and will also permit, in some cases, a defendant to rectify an error or supply a defect in his answer, either by amendment or by a further answer. Summary jurisdiction has been given by authority of parliament to courts of equity in certain cases, arising incidentally from the provisions of acts of parliament, both public and private, without requiring the ordinary proceeding by bill or information, and substituting a simple petition to the court ; the assistance of the court being required only to provide for the due execution of the provisions of such acts. But by an act of the 52d of Geo. Ill, c. loi, a summary jurisdiction, on petition only, has been given in the case of abuses of trusts created for charitable purposes, which before were the subjects of informa- tion by the king's attorney general, to which the persons of whom complaint was made might make defense, according to the nature of the case stated in the information, by demurrer, plea, or answer, so that the court might have before it the whole case on which its judgment might be required, and to which evidence to be produced in support of or in answer to the complaint made might be properly applied. The loose mode of proceeding authorized by this act was probably intended to save expense in inves- tigating abuses of charities ; but in practice it una- voidably led to great inconvenience ; the court not having before it any distinct record to which its judgment might be properly applied, and especially with respect to those against whom complaint might be made, or those against whom no such complaint could be made, but whose interests might be affected Il6 JURISDICTION OF THE COURT OF CHANCERY. by the judgment of the court. This inconvenience became apparent in a case which was made the subject of appeal to the House of Lords, who finally deter- mined that a jurisdiction so summary, and in which the proceedings were so loose, ought, in just construc- tion of the act, to be confined to the simple case of abuse of a clear trust, not involving any question beyond the question of such abuse, and particularly not involving the interests of persons to whom such abuse of trust could not be imputed.^ * In an inquiry into the nature of the several plead- ings thus used, it seems most convenient to consider them in the order in which they have their effect, and consequently to treat : i, of bills ; 2, of the defense to bills, and therein of demurrers, pleas, answers, and disclaimers; 3, of replications; and, 4, to notice matters incidental- to pleadings in general, and particularly the cases in which amendments of inaccurate or erroneous pleadings are permitted. ' Corp. of Ludlow v. Greenhouse, D. Proc. Feb. 1827. * On this subject, see 2 Perkins' Daniell's Ch. Pr. 1853, et seq. CHAPTER I. OF BILLS. Section I. By wkovi, and against whom, a bill may be exhibited. In treating of bills, it will be proper to consider : I. The several persons who are capable of exhibiting a bill by themselves, or under the protection or in the name of others, and against whom a bill may be exhibited ; II. The several kinds and distinctions of bills ; and. III. The frame and end of the several kinds of bills. An information differing from a bill in little more than in name and form, its nature will be principally considered under the general head, of bills, and its peculiarities will be afterwards noticed. It has been already observed that suits on behalf of the crown and of those who partake of its pre- rogative or claim its peculiar protection, are insti- tuted by officers to whom that duty is attributed.' These are, in the case of the crown and of those whose rights are objects of its particular attention, the king's attorney "^ or solicitor general ; ^ and as these ' See above, p. 104. claims between the king and persons ' See I Swanst. 290, 291, 294, and partaking of his prerogative, or under Rex V. Austen, 8 Pri. Exch. R. 142. his peculiar protection. See Att. Gen. And the crown may be represented as v. Mayor of Bristol, 3 Madd. 319 ; s. c. plaintiff by the attorney general, and as 2 Jac. & W. 294 ; Att. Gen. v. Vivian, defendant by the solictor general, in the I Russ. R. 226. same suit, where there are conflicting ' See, as to the solicitor general, ("7) Il8 BY WHOM A BILL officers act merely officially, the bill they exhibit is by way, not of petition or complaint, but of information to the court of the rights which the crown claims on behalf of itself or others, and of the invasion or deten- tion of those rights for which the suit is instituted. If the suit does not immediately concern the rights of the crown, its officers depend on the relation of some per- son, whose name is inserted in the information, and who is termed the relator ; and as the suit is carried on under his direction, he is considered as answerable to the court and to the parties for the propriety of the suit and the conduct of it. ' It sometimes happens that this person has an interest in the matter in dispute, of the injury 'to which interest he has a right to complain. In this case his personal complaint being joined to and incorporated with the information given to the court by the officer of the crown, they form together an information and bill, and are so termed. " * But if the Wilkes's Case, 4 Burr. 2527 ; Sol. Gen. out requiring that a relator should be V. Dory, 6 May, 1735 ; and Sol. Gen. v. named. See 59 Geo. Ill, c. 91, and see Warden and Fellowship of Sutton Cold- i Sim. & Stu. 396. field, Mich. 1763, in chancery. This " See, as instances, Att. Gen. v. subject is particularly considered in part Oglender, r Ves. jr. 247 ; Att. Gen. w. Ill, s. 4, of a manuscript treatise on the Brown, i Swanst. 265 ; Att. Gen. v. Mas- Star Chamber, in the British Museum, ter and Fell, of Cath. Hall, I Jac. R. Harl. MSS. vol. I, No. 1226, mentioned 381 ; Att. Gen. v. Heelis, 2 Sim. & Stu. in 4 Bl. Com. 267. 67 ; and Att. Gen. v. Vivian, i Russ. R. ' I Russ. R. 236. It appears, as in- 226. If the relator should not be enti- timated in the text, that it is not abso- tied to the equitable relief which he lutely necessary, even in the instances seeks for himself, the suit may neverthe- there alluded to, that a relator should less be supported on behalf of the crown be named (2 Swanst. 520 ; 4 Dow. P. C. (i Swanst. 305) ; and upon an informa- 8), although the practice of naming one tion and bill, the bill alone maybe dis- seems to have been universally adopted, missed. See Att. Gen. w.Vivian, i Russ. (1 Ves. jr. 247 ; 4 Dow. P. C. 8 ; i Sim. R. 226. And see Att. Gen. v. Moses, 2 & Stu. 396.) But it may be remarked Madd. 294, a case of information and that the legislature, in certain special bill, in which the king having had no cases in which the right may be doubt- interest, the attorney general was an ful, has empowered the attorney general unnecessary party, to institute a suit, by information, with- * An information and bill is improper, where the persons named as plaintiffs as well as relators have no individual interest, as where an infer- MAY BE EXHIBITED. Ilg suit immediately concerns the rights of the crown, the information is generally exhibited without a relator ; ' and where a relator has been named, it has been done through the tenderness of the officers of the crown towards the defendant, that the court might award costs against the relator, if the suit should appear to have been improperly instituted, or in any stage of it im- properly conducted. ^ The queen consort, partaking of the prerogative of the crown, may also inform by her attorney. ^ Suits on behalf of bodies politi<^and corporate, and of persons who do not partake of the prerogative of the crown, and have no claim to its particular protec- tion, are instituted by themselves, either alone or under the protection of others. Bodies politic and corporate,* and all persons of full age, not being feme covert, idiot or lunatic, may by themselves alone exhibit a bill. A feme covert, if her husband is banished ^ or has ab- jured the realm,* may do so likewise; for she then may ' Att. Gen. v. Vernon, I Vem. 277, * 3 Swanst. 13^8. As examples of 370 ; Att. Gen. v. Crofts, 4 Bro. P. C. suits by such bodies, see the Charitable 136, Toml. ed. Corporation v. Sutton, 2 Atk. 406 ; Uni- ' The propriety of naming a relator versities of Oxford and Cambridge v. for this purpose, and the oppression aris- Richardson, 6 Ves. 689; Mayor &c. of ing from a contrary practice, were par- London v. Levy, 8 Ves. 398 ; City of ticularly noticed by Barron Perrot, in a London v. Mitford, 14 Ves. 41 ; Bank cause in the Exchequer. Att. Gen. v. of England v. Lunn, 15 Ves. 569 ; May- Fox. In that cause no relator was or of Colchester v. Lawton, i Ves. & B. named ; and though the defendants 226 ; Dean and Chapter of Christchurch finally prevailed, they were put to an ex- v. Simonds, 2 Meriv. 467 ; East India pense almost equal to the value of the Comp. v Keighley, 4 Madd. 10 ; Vaux- property in dispute. See 2 Swanst. 520 ; hall Bridge Company v. Earl Spencer, I Sim. & Stu. 397 ; i Russ. R. 236. If i Jac. R. 64 ; President &c. of Magda- the relator should die, this court would len College v. Sibthoip, i Russ. R. 154. would appoint another. Att. Gen. v. ' i Hen. IV, i ; Sybell Belknap's Powel, Dick. 355. Case, 2 Hen. IV, 7,a ; 11 Hen. IV, i,a,b. " 10 Edw. Ill, 179 ; Collins, 131 ; 2 ° Thomas of Weyland's Case, 19 Roll. Abr. 213. Edw. I ; i Inst. 133, a. mation and bill is filed by three of the court of assistants of a company in respect of a charity, and by two of the objects of the charity. (Att. Gen. V. East India Company, 1 1 Sim. 380.) I20 BY WI?bM A BILL act in all respects as a feme sole. ' Those, therefore, who are incapable of exhibiting a bill by themselves alone, are, i, infants; 2, married women, except the wife of an exile, or of one who has abjured the realm ; 3, idiots and lunatics. ° I. An infant is incapable by himself oi exhibiting a bill, as well on account of his supposed want of dis- cretion, as his inability to bind himself, and to make himself Hable to the costs of the suit.^ When, there- fore, an infant claims a right, or suffers an injury, on account of which it is necessary to resort to the ex- traordinary jurisdiction of the Court of Chancery, his nearest relation is supposed to be the person who will take him under his protection, and institute a suit to assert his rights or to vindicate his wrongs ; and the person who institutes a suit on behalf of an infant is therefore termed his next friend. But as it frequently happens that the nearest relation of the infant himself withholds the right, or does the injury, or at least neg^ lects to give that protection to the infant which his consanguinity -or affinity calls upon him to give, the ' See Newsome v. Bowyer, 3 P. they are a disability, if it is removed Wms. 37. by reversal of the outlawry, by purchase " It may seem that the disabilities of letters of absolution in the ease of arising from outlawry, excommunica^ excommunication, or by conformity in tion, conviction of popish recusancy, at- the case of a popish recusant, a bill ex- tainder, and alienage, and those which hibited under the disability may be pro- fornjerly arose from villenage and pro- ceeded upon. Attainder and alienage fession, ought to be here noticed. Such no otherwise disable a person to sue of them as subsist do not, and the others than as they deprive him of the prop- did not, absolutely disable the person erty which may be the object of the suffering under them from exhibiting a suit. Villenage and profession were in bill. Outlawry, excommunication,* and the same predicament. See c. II, s. 2; conviction of popish recusancy,j- are not pt. l.\ in some cases any disability ; and where ° Turner v. Turner, Strange, 708. * This disability is removed by the statute 53 Geo. Ill, c. 127, s. 3. t This disability is removed by the statute 31 Geo. Ill, c. 32. X See Story's Equity Pleadings, ss. 51, 52, 53, 54, 55, as to the disability of alienage. MAY BE EXHIBITED. 121 court, in favor of infants, will permit any person to in- stitute suits on their behalf ; ^ * and whoever acts thus the part which the nearest relation ought to take, is also styled the next friend of the infant, and as such is named in the bill.'' The next friend is liable to the costs of the suit, 3 and to the censure of the court, if the suit is wantonly or improperly instituted : ■• but if the infant attains twenty-one, and afterwards thinks proper to- proceed in the cause, he is liable to the whole costs. 5 If the person who thus acts as friend of ' Andrews v. Cradock, Free, in Chan. ' And if the next friend of an infant 376 ; Anon. I Atk. 570 ; 2 P. Wms. 120; do not proceed in the cause, this court, 1 Ves. jr. 195. if it be desirable, will supersede him ' 2 Eq. Cas. Abr. 239 ; I Ves. jr. 195. (Ward v. Ward, 3 Meriv. 706 ; i Jac. & " 4 Madd. 461 ; and see Turner v. W^ 483) ; but the next friend of an in- Turner, 2 P. Wms. 297 ; S. C. on appeal, fant cannot procure the substitution of 2 Eq. Cas. Abr. 238 ; and Strange, 708. another person to act in his place, with- it is hence, of course, important to the out submitting to an investigation into defendant that the prochein amy, or his past conduct by the court. (Melling next friend of the infant, be a person v. Melling, 4 Madd. 261). If the next of substance (Anon. I Atk. 570) ; and, friend should die, the court will take where the contrary appears to be the upon itself to appoint another. Lancas- fact, on an application by the defend- ter v. Thornton, Ambl. 398 ; Bracey v. ant before answer, he will be compelled Sandiford, 3 Madd. 468. to give security for costs, or another ' In Turner and Turner (2 P. Wms. person will be appointed to sue in his 297), Lord King was first of opinion stead. Wale v. Salter, Mosely, 47 ; that upon a bill filed in the name of aa Anon. Mosely, 86 ; Anon. I Ves. jr. 409 ; infant who attained twenty-one, the and see Pennington v. Alvin, I Sim. & plaintiff was liable to the costs, though Stu. 264.1 ^^ 'i''i ''°' proceed after he attained * Where a bill is filed by an annuitant, whose annuity is charged on residuary personal estate, and by infants who are the devisees of lease- holds, by the annuitant as their next friend, seeking payment of the annu- ity and the renewal of the leases for the infants, this is a misjoinder ; for in this case one plaintiff seeks relief in which the other is not interested. Besides, if the annuitant were to die, the suit would abate, though as to that portion of it which she instituted as next friend, it would not abate but for the misjoinder. Again, supposing the court to decide the one por- tion of the suit in favor of the annuitant, and the other branch of it against the infants, they could procure no redress in case the annuitant, as their next friend, refused to take any further steps ; or if the reverse were to take place, the infants might be delayed in the redress awarded to them by an appeal interposed by the annuitant on his own behalf. (Anderson v. Wallis, 4 Y. & C. Eq. Ex. 336 ; i Phil. 202.) + As to this point, see i Perkins' Daniell's Ch. Pr. 76, contra. 122 BY WHOM A BILL an infant does not lay his case properly before the court, by collusion, neglect or mistake, a new bill may be brought on behalf of the infant ; and if a defect ap- pears on hearing of the cause, the court may order it to stand over, with liberty to amend the bill. ' The next friend of an infant plaintiff is considered as so far interested in the event of the suit that he pr his wife= cannot be examined as a witness.* If his examination is necessary for the purposes of justice, his name must be struck out of the bill, and that of another responsible person substituted, which the court, upon application, will permit to be done.^ As some check upon the general license to institute a suit on behalf of an infant, if it is represented to the court that a suit preferred in his name is not for his benefit, an inquiry into the fact will be directed to be made by one of the masters ; and if he reports that the suit is not for the benefit of the infant, the court will stay the proceedings.* And if two suits for the same purpose are instituted in the name of an infant, by diflFerent persons acting as his next friend, the court will direct an inquiry to be made in the same manner, which suit is most for his benefit ; that age ; but upon a rehearing he ^ Head v. Head, 3 Atk. 511. changed his opinion, and dismissed the ° Strange, 708. As a general rule, bill without costs, the prochein amy it may be stated that this is done upon being dead. See s. c. Strange, 708, and the next friend giving security for the 2 Eq. Cas. Abr. 238. It now seems, costs incurred in his time. Witts v. that if no misconduct (Pearce v. Pearce, Campbell, 12 Ves. 493 ; Davenport u. 9 Ves. 548) be proved against the next Davenport, i Sim. & Stu. loi. friend, eitlier in the institution or prog- * Da Costa v. Da Costa, 3 P. Wms. ress of the suit, the late infant, although 140 ; Strange, 709 ; 2 Eq. Cas. Ah. 239. he should not adopt it, will be liable to Such an inquiry will not be directed the costs. Anon. 4 Madd. 461. upon the application of the next friend ' Serle u. St. Eloy, I P. Wms. 386 ; himself. Jones v. Powell, 2 Meriv. Pritchard v. Quinchant, Ambl. 147. 141. * This disability would seem to be removed by the statute 6 & 7 Vict. c. 85. MAY BE EXHIBITED. 1 23 and when that point is ascertained, will stay proceed- ings in the other suit/ 2. A married woman, being under the protection of her husband, a suit respecting her rights is usually instituted by them jointly.^ *But it sometimes happens that a married woman claims some right in opposition to rights claimed by her husband ; and then the hus- band being the person, or one of the persons, to be complained of, the complaint cannot be made by him. In such case, therefore, as the wife being under the disability of coverture cannot sue alone, and yet cannot sue under the protection of her husband, she must seek other protection, and the bill must be exhibited in her name by her next friend,^ who is also named in the bill in the same manner as in the case of an infant* * But a bill cannot, in the case of ' I Ves. 545 ; Owen v. Owen, Dick. Farrer v. Wyatt, 5 Madd. 449 ; Hughes 310 ; Sullivan v. Sullivan, 2 Meriv. 40; v. Evans, i Sim. & Stu. 185. Mortimer v. West, i Swanst. 358 ; but ' Griffith v. Hood, 2 Ves. 452 ; Lady it seems an application for this purpose Elibank v. Montolieu, 5 Ves. 737 ; Pen'- should not be made, except in a strong nington v. Alvin, i Sim. & Stu. 264. case (Stevens v. Stevens, 6 Madd. 97) ; But, it seems, the next friend of a nor generally, after a decree in one of feme covert is not always, in the first the suits. I Jac. R. 528. instance, liable to the costs. Strange, ' Smith V. Myers, 3 Madd. 474 ; 709 ; 2 Eq. Cas. Abr. 239 ; Barlee v. Barlee, I Sim. & Stu. 100. * Husband and wife ought not to join as plaintiffs in a suit relating to the wife's separate property, but the bill ought to be filed by the wife alone, by her next friend, and her husband ought to be made a defendant : first, because the husband may have filed the bill in his wife's name without her knowledge or consent, and may, by collusion with the other parties, have the accounts improperly taken ; and, secondly, because the wife being, as to her separate estate, entitled to prosecute a suit by her own authority, independently of her husband, a suit by her and her husband, which is considered as the suit of the husband alone, would not prevent her from instituting another suit ; so that the defendant might be annoyed by two suits instead of one. If the objection is taken by de- murrer, the court will give leave to amend, by striking out the name of the husband as plaintiff, and as next friend of his infant children, where he is named as such, and making him a defendant, and by inserting the 124 S"^ WHOM A BILL a feme covert, be filed without her consent' The consent of an infant to a bill filed in his name is not necessary.* 3. The care and commitment of the custody of the persons and estates of idi'ots and lunatics are the pre- rogative of the crown, and are always intrusted to the person holding the great seal, by the royal sign-manual. By virtue of this authority, upon an inquisition finding any person an idiot or a lunatic, grants of the custody of the person and estate of the idiot or lunatic are made to such persons as the lord chancellor, or lord keeper, or lords commissioners for the custody of the great seal for the time being, think proper. ^ Idiots and lunatics, therefore, sue by the committees of their estates. ■• Sometimes, indeed, informations have been exhibited by the attorney general on behalf both of idiots and lunatics, considering them as under the peculiar protection of the crown, ^ and particularly if the interests of the committee have clashed with those of the lunatic.^ - But in such cases, a proper relator ought to be named ; ^ and where a person found a ' Andrews v. Cradock, Prec. in Ch. ' See Att. Gen. v. Banther, Dick. 376 ; s. c. I Eq. Gas. Abr. 72 ; I Sim. 748. & Stu. 265. ' Att. Gen. at relation of Griffith ' Andrews v. Cradock, Prec. in Ch. Vaughan, a lunatic, against Tyler and 376. others, nth July, 1764. On motion, ' 3 P. Wms. , 106, 107 ; £x parte ordered that a proper relator should be Pickard, 3 Ves. & Bea. 127. appointed, who might be responsible to * I Gas. in Chan. Ig ; Ridler v. Rid- the defendants for the costs of the suit, ler, I Eq. Gas. Abr. 279 ; Prac. Reg. See Dick. 378 ; 2 Eden, 230. And see 272, Wy. ed. Att. Gen. v. Plumptree, 5 Madd. 452, ° Att. Gen. v. Parkhurst, i Gas. in though the case of a charity informa- Ghan. 112 ; Att. Gen. v. Woolrich, I tion. Gas. in Ghan. 153 ; 3 Bro. P. C. 633, Toml. ed. name of another person as next friend. (Wake v. Parker, i Keen, 59 ; England v. Downs, i Beav. 96 ; Owden v. Campbell, 8 Sim. 551 ; Sigel v. Phelps, 7 Sim. 239 ; Thorp v. Yeates, i Y. & C. Ch. C. 438 ; Davis v. Prout, 7 Beav. 288.) MAY BE EXHIBITED, 125 lunatic has had no committee, such an information has been filed, and the court has proceeded to give direc- tions for the care of the property of the lunatic, and for proper proceedings to obtain the appointment of a committee. ' Persons incapable of acting for themselves, though not idiots or lunatics, or infants, have been permitted to sue by their next friend, without the intervention of the attorney general.' A bill may be exhibited against all bodies politic and corporate, and all persons, as well infants, married women, idiots and lunatics, as those who are not under the same disability, excepting only the king and queen. 3 But to a bill filed against a married woman her husband must also be a party, unless he is an exile, or has abjured the realm ; and the committee of the estate of an idiot or lunatic must be made defendant with the person whose property is under his care. Where the rights of the crown are concerned, if they extend only to the superintendence of a public trust, as in the case already mentioned of a charity, the king's attorney general may be made a party to- sus- tain those rights ; and in other cases, where the crown is not in possession, a title vested in it is not im- peached, and its rights are only incidentally concerned, it has generally been considered that the king's attor- ney general may be made a party in respect of those rights, and the practice has been accordingly.* But where the crown is in possession, or any title is vested ■ Att. Gen. on behalf of Maria Le- eery— Decree, I Dec. 1760. Decree on pine, a lunatic, at the relation of John supplemental bill, 4 March, 1779. See Fox ; and also Maria Lepine against Wartnaby v. Wartnaby, i Jac. R. 377- Earl and Countess Howe and others ; ' See c. II, s. I. 26 March, 1793—3 Apr. 1794. * See Balch v. Wastall, i P. Wms. " Eliz. Liney, a, person deaf and 445 ; Dolder v. Bank of England, 10 dumb, by her next friend, against Ves. 352. Thomas Witherly and others. In chan- 126 BY WHOM EXHIBITED. in it which the suit seeks to divest or affect, or its rights are the immediate and sole object of the suit, the apphcation must be to the king by petition of right,' upon which, however, the crown may refer it to the chancellor to do right, and may direct that the attorney general shall be made a party to a suit for that purpose ; or a suit may be instituted in the Court of Exchequer, as a court of revenue and general au- ditor for the king, and relief there obtained, the attor- ney general being made a party."* The queen has also the same prerogative. ^ A suit may affect the rights of persons out of the jurisdiction of the court, and consequently not com- pellable to appear in it. f If they cannot be prevailed upon to make defense to the bill, yet, if there are ' See legal juric. in Chan., stated p. Excheq. Hardres, 465 ; Poole v. Att. 113. Reeve against Att. Gen., men- Gen. Excheq. Parker, 272; Wilkes's tioned in Penn against Lord Baltimore, Case, Exch. Lane, 54, T Ves. 445, 446. The bill was dismissed ' 2 Roll. Abr. 213. But see Staunf. 27 Nov. 1747, by Lord Hardwicke. Praeer. 75, 6 ; g Hen. VI, 53. Writ of 'Lord Hardwicke, in' Huggins and annuity against Joan, queen dowager of York Buildings Company, in Chancery, Hen. IV. 24 Oct. 1746 ; Pawlet v. Att. Gen. in * See note (3), p. 103. t A foreign sovereign may sue in equity. (Hullett v. The King of Spain, 2 Bligh, 31 [N. S.]) In a suit against a sovereign prince, who is also a British subject, the bill ought, upon the face of it, to show that the subject-matter of it constitutes a case on which a sovereign prince is liable to be sued as a subject. (The Duke of Brunswick v. The King of Hanover, 6 Beav. i.) A foreign state may sue in equity. But it must sue in the names of some public ofiScers who are entitled to represent its interests, and upon whom process can be served on the part of the defendants, and who can be called upon to answer the cross-bill of the defendants. And therefore, where a bill was filed by " the government of the state of Columbia, and Don M. J. Hurtado, a citizen of that state, and minister plenipotentiary from the same,'' &c., a general demurrer to the whole bill was allowed. (The Columbian Government v. Rothschild, i Sim. 94.) A foreign prince or state may sue in the courts of law and equity of the United States, (i Peters' Cir. C. R. 276 ; i Kent Com. 297, n. 6.) THE SEVERAL KINDS OF BILLS. 1 27 Other parties, the court will in some cases proceed against those parties ; ' and if the absent parties are merely passive objects of the judgment of the court, or their rights are incidental to those of parties before the court, a complete determination may be obtained ;" but if the absent parties are to be active in the per- formance of a decree, or if they have rights wholly distinct from those of the other parties, the court cannot proceed to a determination against them.^ Section II. Of the several kinds and distinctions of bills* It has been mentioned in the introduction that different kinds of bills are used to answer the several purposes of instituting an original suit, of adding to, continuing, or obtaining the benefit of a suit thus instituted, of instituting a cross-suit, of impugning the judgment of the court on a suit brought to a decision, and of carrying a judgment into execution. The ' Williams v. Whinyates, 2 Br. C. C. Lord Hardwicke overruled the latter 399 ; I Sch. & Lefr. 240 ; 16 Ves. 326. objection, as the university of Glasgow '^ In Att. Gen. at relation of Uni- vifas a corporation out of the reach of versity of Glasgow against Baliol Col- the process of the court, which war- lege and others, in Chancery, Dec. nth, ranted the proceeding without making 1744, which was an information filed, that body party to the suit. See Wal- impeaching a decree made in 1699, on ley v. Whalley, i Vem. 487 ; Rogers v. an information by the attorney general Linton, Bunb. 200 ; Quintine v. Yard, against the trustees of a testator, his 1 Eq. Cas. Abr. 74. heirs at law, and others, to establish a ° See Fell v. Brown, 2 Bro. C. C. will, and a charity created by it, alleg- 276. Hence there sometimes arises an ing that the decree was contrary to the absolute defect of justice, which seems will, and that the university of Glasgow to require the interposition of the legis- had not been made party to the suit ; lature. * See Dissertation on Pleadings in Suits in Equity, prefixed to this edition. 128 , THE SEVERAL KINDS OF BILLS. several kinds of bills have been usually considered as capable of being arranged under three general heads : r. Original bills, which relate to some matter not before litigated in the court by the same persons standing in the same interests. II. Bills not original which are either an addition to, or a continuance of an original bill, or both. III. BiUs which, though occasioned by or seeking the benefit of a former bill, or of a decision made upon it, or attempting to obtain a reversal of a decision, are not consid- ered as a continuance of the former bill, but in the nature of original bills. And though this arrangement is not, perhaps, the most perfect, yet, as it is nearly just, and has been very generally adopted in argument, and in the books of reports and of practice, it will be convenient to treat of the different kinds of bills with reference to it I. A bill may pray relief against an injury suffered, or only seek the assistance of the court to enable the plaintiff to defend himself against a possible future injury, or to support or defend a suit in a court of ordinary jurisdiction. Original bills have, therefore, been again divided into bills praying relief, and bills not praying relief. An original bill praying relief may be: I. A bill praying the decree or order of the court touching some right claimed by the person exhibiting the bill, in opposition to some right claimed by the person against whom the bill is exhibited. 2. A bill of interpleader, where the person exhibiting the bill claims no right in opposition to the rights claimed by the persons against, whom the bill is exhibited, but prays the decree of the court touching the rights of those persons for the safety of the persons exhibiting the bill. 3. A bill praying the writ of (Certiorari to THE SEVERAL KINDS OF BILLS. 1 29 remove a cause from an inferior court of equity. An original bill not praying relief may be : i. A bill to perpetuate the testimony of witnesses. 2. A bill for discovery of facts resting within the knowledge of the person against whom the bill is exhibited, or of deeds, writings, or other things in his custody or power. II. A suit imperfect in its frame, or become so by accident before its end has been obtained, may, in many cases, be rendered perfect by a new bill, which is not considered as an original bill, but merely as an addition to or continuance of the former bill, or both. A bill of this kind may be : i. A supplemental bill, which is merely an addition to the original. 2. A bill of revivor, which is a continuance of the original bill when by death some party to it has become incapable of prosecuting or defending a suit, or a female plaintiff has by marriage incapacitated herself from suing alone. 3. A bill both of revivor and supplement, which con- tinues a suit upon an abatement, and supplies defects arisen from some event subsequent to the institution of the suit. III. Bills for the purposes ofi cross-litigation of matters already depending before the court, of contro- verting, suspending, avoiding or carrying into execu- tion a judgment of the court, or of obtaining the benefit of a suit which the plaintiff is not entitled to add to or continue for the purpose of supplying any defects in it, have been generally considered under the head of bills in the nature of original bills, though occasioned by or seeking the benefit of former bills : and may be, i. A cross-bill, exhibited by the defend- ant in a former bill, against the plaintiff in the same bill, touching some matter in litigation in the first bilL 130 FRAME AND END OF THE 2. A bill of review to examine and reverse a decree made upon a former bill, and signed by the person holding the great seal, and enrolled, whereby it has be- come a record of the court. 3. A bill in the nature of a bill of review, brought by a person not bound by the former decree. 4. A bill to impeach a decree upon the ground of fraud. 5. A bill to suspend the opera- tion of a decree on special circumstances, or to avoid it on the ground of matter arisen subsequent to it. 6. A bill to carry a decree made in a former suit into execution. 7. A bill in the nature of a bill of revivor, to obtain the benefit of a suit after abatement in cer- tain cases which do not admit of a continuance of the original bill. 8. A bill in the nature of a supplemental bill, to obtain the benefit of a suit, either after abate- ment in other cases which do not admit of a contin- uance of the original bill, or after the suit is become defective without abatement, in cases which do not admit of a supplemental bill to supply that defect. Section IIL Of the frame and end of the several kinds of bills and of informations. The several kinds of bills have been already con- sidered as divided into three classes. In the first class have been ranked original bills ; in the second, bills not original ; in the third, bills in the nature of orig- inal bills, though occasioned by former bills. The frame and end of the several kinds of bills will be treated with reference to this distribution, and the SEVERAL KINDS OF BILLS. I 7 1 peculiarities of informations will be considered under a fourth head. I. Original bills have been mentioned as again divisible into bills praying relief, and bills not praying relief Original bills praying relief have been ranked under three heads. i. Original bills praying the decree of the court touching some right claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is ex- hibited. 2. Bills of interpleader. And, 3. Certiorari bills. Bills of the first kind are the bills most usually exhibited in the court ; and as the several other kinds of bills are either consequences of this, or very similar to it in many respects, the consideration of bills of this kind will in a great measure involve the consider- ation of bills in general. I. An original bill, praying the decree of the court touching rights claimed by the person exhibiting the bill, in opposition to rights claimed by the person against whom the bill is exhibited, must show the rights of the plaintiff, or person exhibiting the bill ; by whom, and in what manner, he is injured; or in what he wants the assistance of the court ; and that he is without remedy, except in a court 6f equity, or at least is properly relievable, or can be most effect- ually relieved there. Having thus shown the plaint- iff's title to the assistance of the court, the bill may pray, that the defendant, or person against whom the bill is exhibited, may answer upon oath the matters charged against him ; and it may also pray the relief or assistance of the court which the plaintiff's case en- titles him to. For these purposes, the bill must pray, that a writ, called a writ of subpoena, may issue under 132 FRAME AND END OF THE the great seal, which is the seal of the court, to require the defendant's appearance, and answer to the bill; unless the defendant has privilege of peerage, or is a lord of parliament, or is made a defendant as an officer of the crown. In the case of a peer or peeress, or lord of parliament, the bill must first pray the letter of the person holding the great seal, called- a letter missive, • requesting the defendant to appear to and answer the bill ; ' and the writ of subpoe'na only in default of com- pliance with that request. And if the attorney general is made a defendant as an officer of the crown, the bill must pray, instead of the writ of subpoena,'' that he, being attended with a copy, may appear and put in an answer. It is usual to add to the prayer of the bill a general prayer of that relief which the circumstances of the case may require ; that if the plaintiff mistakes the relief to which he is entitled, the court may yet afford him that relief to which he has a right.^ * In- deed it has been said, that a prayer of general relief, without a special prayer of the particular relief to which ' This mark of courtesy is in respect of Commons. See Act of Union with of peerage generally (see Lord Milsing- Ireland. 39 & 40 Geo. Ill, c. 67, art. 4, ton ». Earl of Portmore, I Ves. & B. and Robinson v. Lord Rokeby, 8 Ves. 419), and is to be observed towards 601. Scotch peers (see Act of Union with ' See Barclay v. Russell, Dick. 729 ; Scotland, 5 & 6 Anne, c. 8, art. 23), and s. c. 3 Ves. 424. Irish peers not members of the House " HoUis v. Carr, 2 Mod. 86. * Where a bill prays that account may be taken of the dealings and transactions between the plaintiif and the defendant, who has brought an action against the plaintiff, and that the defendant may be decreed to pay to the plaintiff what shall appear to be due to him upon taking such ac- count, the plaintiff being ready and willing to pay what, if anything, shall appear to be due from him to the defendant, the court will not decree a set-off, because with such relief the reUef prayed for is totally inconsist- ent ; for in the case of a' set-off, the defendant would not be ordered to pay the plaintiff the balance, but the balance would be directed to be ap- plied in satisfaction of the damages, if any, which the defendant would otherwise be entitled to receive. (Rawson v. Samuel, Cr. & Phil. 161.) SEVERAL KINDS OF BILLS. 133 the plaintiff thinks himself entitled, IS sufficient;' and that the particular relief which the case requires may, at the hearing, be prayed at the bar. " But this relief must be agreeable to the case made by the bill, 3* and not different from it ; ■* and the court will not in all cases be so indulgent as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced. If, therefore, the plaintiff' doubts his title to the relief he wishes to pray, the bill may be framed ^yith a double aspect ; that if the court determines against him in one view of the case, it may yet afford him assistance in another. = f ' See Cook v. Martyn, 2 Atk. 3. * 2 Atk. 141 ; 3 Atk. 132 ; i Ves. jr. The report of this case is apparently 426 ; 2 Ves. 299 ; Birch v. Corbin, 9 very inaccurate. See I Eden R. 26 ; Dec. 1784, in Chan, i Ves. jr. 426 ; Lord II Ves. 574. Walpole v. Lord Orford, 3 Ves. 402 ; " See Wilkinson v. Beal, 4 Madd. Palk v. Lord Clinton, 12 Ves. 48. 408. " 2 Atk. 325. And see I'erry v. ' Beaumont v. Boultbee, 5 Ves. 485 ; Phelips, 17 Ves. 173. Hienr v. Mill, 13 Ves. 114 ; 2 Sch. & Lefr. 10, 729 ; 3 Swanst. 208, note. * The plaintiff may have such relief, under the prayer for general relief, as the statement of his case entitles him to ask. (Topham v. Columbine, Taml. 135 ; Meller v. Minet, lb. 487.) But after stating- certain grounds for relief in the bill, he cannot have relief upon other grounds not pointed out in the bill, because that would be a surprise upon the defendant. And hence where an equitable mortgagee seeks relief against elegits on the ground of fraud, no relief can be giyen on the general ground, real or supposed, that an equitable mortgage has pri- ority over a title by elegit under a judgment subsequent to the mortgage, where no case is made by the bill for relief on that ground ; although, in- deed, there is a charge that the plaintiff is entitled to priority in i;espect of the equitable mortgage over the elegits, and a prayer corresponding to such charge, but such charge does not clearly point out the general ground above mentioned as a ground for relief, distinct from that of fraud, so as to enti- tle the plaintiff at the hearing to ask for relief upon that general ground. (Whitworth V. Gaugain, Cr. & Phil. 325.) t Where a bill is filed against certain members of a club, for the recovery of money belonging to the club, and it prays that the money may be paid to the plaintiff, "or otherwise as the court may direct ; " in such case, if it ought not to be paid to the plaintiff, the court will take care that it is paid 134 FRAME AND END OF THE Upon an information by the attorney general on behalf of a charity, the court will give the proper directions as to the charity, without regarding the propriety or im- propriety of the prayer of the information. ' All persons interested in the subject of the suit ought generally to be parties,^ if within the jurisdic- tion of the court. 3 Who are the necessary parties to a , suit will be considered in the next chapter, in treating of demurrers ; but if any necessary parties are omitted, or unnecessary parties are inserted, the court, upon ' Att. Gen. v. Jeanes, I Atk. 355 ; for relief (Pawlet v. Bishop of London, 1 Ves. 43, 72, 418 ; Att. Gen. v. Breton, 2 Atk. 296 ; Poore v. Clarke, 2 Atk. 2 Ves. 426, 427 ; II Ves. 247, 367 I 2 5I5 I I Ves. jr. 39 ; 7 Ves. 563 ; i Meriv. Jac. &W. 370; and it seems that a 262 ; 3 Meriv. 512), has been said, but similar observation would in some in- upon somevirhat doubtful authority, not stances apply upon a bill filed on be- to apply where discovery alone is sought, half of an infant. Stapilton w. Stapilton, Sangosa w. E. I. Comp. I Eq. Gas. Abr. I Atk. 2 ; and see Durant v. Durant, I 170. Cox, 58 (in which, on reference to the ° As to mode of framing the bill record, it appears that the daughter was where a defendant is out of the juris- an infant) ; Reg. Lib. 1783, p. 192. diction, see r Sch. & Lefr. 240 ; Wil- ^ This proposition, although un- kinson v. Beal, 4 Madd. 408. doubtedly correct in relation to suits to the persons who ought to have the management of it. (Richardson v. Hastings, 7 Beav. 323.) If a bill prays relief contingently against one defendant, only in the event of the court not giving relief against another defendant, it is demurrable. (Seddon v. Connell, 10 Sim. 79.) If a bill by the directors of an insurance company prays that a policy may be delivered up to be canceled, or that the company may otherwise be reHeved therefrom in such manner as the court may think fit, this is a sub- mission to the judgment of the court as to the terms on which the relief is to be granted ; and therefore it is not necessary that the plaintiffs should expressly offer to pay back the premiums received on the pohcy. (Barker V. Walters, 8 Beav. 92.) Where a person conveys an estate, in trust, out of the rents, or by a sale or mortgage thereof, to pay a debt, and afterwards mortgages it, and the mortgagee files a bill, praying an execution of the trusts of the prior deed, and payment of the prior debt in the first place, and then of the mortgage debt due to himself, the bill is demurrable for want of an offer fo redeem the prior incumbrancer, or to pay him any deficiency there may be in case the sum realized by the sale of the estate should be less than the prior debt. (Cave V. Foulks, 5 Law J. Ch. Rep. [N. S.] 206, M. R.) SEVERAL KINDS OF BILLS. , 1 35 application, will in general permit the proper altera- tions to be made. The cases in which this permission is usually granted, and the terms upon which it may be obtained, will be more particularly the subject of con- sideration in the fourth chapter. It is the practice to insert in a bill a general charge, that the parties named in it combine together, and with several other persons unknown to the plaintiff, whose names, when discovered, the plaintiff prays he may be at liberty to insert in the bill. This practice is said to have arisen from an idea that without such a charge parties could not be added to the bill by amendment; and. in some cases perhaps the charge has been inserted with a view to give the court jurisdiction. It has been probably for this reason generally considered, that a defendant demurring to a bill comprising persons whose interests are so distinct that they ought not to be made parties to the same bill, ought to answer the bill so far as to deny the charge of combination. The denial of combination usually inserted as words of course at the close of an answer, is a denial of unlawful combination ; and it has been determined that a gen- eral charge of combination need not be answered.' An answer to a charge of unlawful combination can- not be compelled ; and a charge of lawful combina- tion ought to be specific to render it material. For where persons have a common right they may join together in a peaceable manner to defend that right ; and though some of them only may be sued, the rest may contribute to the defense, at their common charge : " and if on the ground of such a combination the jurisdiction of a court of equity is attempted to be ' See Oliver v. Haywood, I Anstr. ' See Lord Howard v. Bell, Hob. gi. Exch. Rep. 83. 136 FRAME AND END OF THE sustained, where the jurisdiction is properly at the common law, the combination ought to be specially charged, that it may appear to warrant the assumption of jurisdiction by a court of equity. From whatever cause the practice of charging combination has arisen, it is still adhered to, except in the case of a peer, who was never charged with combining with others to de- prive the plaintiff of his right, either from respect to the peerage, or perhaps from apprehension that such a charge might be construed a breach of privilege. * The rights of the several parties, the injury com- plained of, and every other necessary circumstance, as time, place, manner, or other incidents, ought to be plainly yet succinctly alleged. Whatever is essential to the rights of the plaintiff, and is necessarily within his knowledge, ought to be alleged positively,' and with precision ; ' f but the claims of the defendant may be ' It has been determined, upon de- Ves. jr. 287 ; Cressett v. Mytton, 3 Bro. murrer, that it is not a sufficient allega- C. C. 481 ; Ryves v. Ryves, 3 Ves. 343 ; tion of fact in a bill, to state that the Mayor of London v. Levy, 8 Ves. 398 ; plaintiff is so informed. Lord Uxbridge Carew v. Johnston, 2 Sch. & Lefr. 280 ; V. Staveland, i Ves. 56. Albretcht v. Sussman, 2 Ves. & Bea. " See E. I. Comp. v. Henchman, r 323. * It is wholly unnecessary, and it is, therefore, the practice of some draftsmen to omit it. (See page 140, infra.) + I. Wztk respect to a want of sufficient particularity — - Where a mortgage debt has been due for more than twenty years, a general allegation that all interest has been paid is not sufficient to support a proof that interest was paid from time to time during the twenty years, so as to prevent the statute of limitations from operating ; for, consist- ently with the truth of this allegation, the interest might have been paid in a lump. (Gregson v. Hindley, 10 Jur. 383 — V. C. E.) If a bill prays that the trustee of leasehold property may be declared to be a trustee for the plaintiff, as claiming through a person to whom it accrued by an intestacy, the bill must state or charge that the intestate did not dispose of or incumber the property, and that it was not applied in or required for the payment of his debts. (See Stephens v. Frost, 2 Y. & C. Eq. Ex. 297.) In stating a title by descent in the plaintiff, it is necessary that all the SEVERAL KINDS OF BILLS. I37 Stated in general terms ; and if a matter essential to the determination of the plaintiff's claims is charged to links which constitute the chain of descent should be stated. (Baker v. Harwood, 7 Sim. 373.) An allegation that a defendant is the representative of a firm is not sufficient to admit proof of circumstances which might have made that party not only a representative, but actually the party carrying on the busi- ness. (Schneider v. Lizardi, 15 Law J. [N. S.] 435, M. R.) Where a foreign instrument is intended to operate according to a law which is not known in England, and which, as foreign law, is to be proved as a fact to the cause, an allegation that such instrument is void is too vague. (The Duke of Brunswick v. The King of Hanover, 6 Beav. 59.) Where a plaintiff means to rely on an admission made to a person whom he intends to examine as a witness, it is necessary that he should state or charge, not merely that such an admission was made, but that it was made to that person, in order to give the defendant an opportunity of cross-examining such person, or of otherwise meeting the case made upon the evidence. (Austin v. Chambers, 6 CI. & Fin. 38.) And where a plaintiff proceeds against a defendant upon the ground of admissions made by the defendant of his having had notice, he ought to mention in the bill the date of such admissions, land the names of the persons to whom they were made, in order to give the defendant an opportunity of meeting the case. (Earle v. Pickin, i Russ. & M. 547.) Letters proved in the cause, but not referred to in the pleadings, are inadmissible in evidence, even on the question of costs. (Whitley v. Mar- tin, 3 Beav. 226.) Conversations not put in issue cannot be used in evidence. But when communications are stated in the answer, the plaintiff has a right to show the real nature of those communications, although they are not referred to in the bill. (Graham v. Oliver, 3 Beav. 124. But see Hughes v. Garner, 2 Y. & C. Eq. Ex. 328.) Where a bill seeks to restrain a defendant from prosecuting an action for a damage caused by a nuisance, and, as a ground for such relief, it alleges that he acquiesced in and encouraged the erection causing the nuisance, such an allegation is sufficient to let in evidence of such particu- lar acts of encouragement as would amount to an equity against the de- fendant ; and a demurrer for want of equity, on account of the generality of the allegation, will not lie, although it may turn out that there is not evidence of such an encouragement as will constitute an equity. (Williams V. Earl of Jersey, Cr. & Phil. 91.) Where a bill charges generally that there are errors in an account, and that they appear in a certain report of an accountant in the plaintiff's pos- session, which the bill calls upon the defendant to inspect, but it does not 138 FRAME AND END OF THE rest in the knowledge of the defendant, or must of ne- cessity be within his knowledge, and is consequently the specifically point out the errors, neither that report nor evidence of the errors pointed out in it can be recorded, although the report is stated, and the alleged errors in the account are explained in a cross-bill by the defend- ant. (Shepherd v. Morris, 4 Beav. 252.) Where a bill impeaching a voluntary settlement on the ground of the indebtment of the settlor, does not state the particulars of the debts, but refers to a schedule of debts in the Insolvent Debtors' Court, in aid of the suit, the existence of the debts is not sufficiently put in issue, as against an infant or a married woman, but an inquiry will be directed on the point. (Townsend v. Westacott, 2 Beav. 340.) II. With respect to the mode of putting a specific allegation — A statement that "the defendant alleges, and the plaintiff beUeves the fact to be,'' is not a sufficient allegation of a material fact. (Egremont v. Cowell, 5 Beav. 620.) A charge that the contrary of a pretense is the truth is equivalent to an allegation of the negative of the fact pretended. (Harrison v. Wiltshire, 4 Law J. Ch. Rep. [N. S.] 260, Lord Commissioner Shadwell.) So that a bill, by charging the contrary of a pretense that a right has not been estab- lished at law, sufficiently avers the establishmMit of the pght at law. (The Mayor, Aldermen and Burgesses of Rochester v. Lee, 1 5 Law J. Ch. Rep. [N. S.] 97.) If a bill insists that a will was a good execution of a power at law, and, if not, in equity, and then prays that the defect, if any, may be supplied against the defendant, \as. bill is demurrable : for the court cannot act upon an hypothetical bill, desiring relief either at law or in equity, according to the result of the argument. (Edwards v. Edwards, Jac. 335.) III. With respect to the rule of construction — Allegations are to be taken most strongly against the party making them. (Benson v. Hadfield, 5 Beav. 546.) And hence, in order to charge a party with a breach of trust, it is nec- essary that the case made against him by the bill should be such as to be incapable of being construed otherwise than as a case of a breach of trust. (Attorney General v. The Mayor of Norwich, 2 My. & Cr. 406.) Where a party makes alternative allegations, the opposite party is enti- tled to adopt whichever of the alternative allegations he pleases. (Williams V. Flight, 5 Beav. 41.) Where a bill of discovery is filed in aid of an action of covenant, which could not be sustained unless the person granting the lease containing the covenant had the legal estate, and the bill states that such person was "seized or otherwise well entitled," and there are no other expressions showing that he had the legal estate, the defendant has a right to take the SEVERAL KINDS OF BILLS. 1 39 subject of a part of the discovery sought by the bill, a precise allegation is not required. ' * As the bill must be sufficient in substance, so it must have convenient form. ^ The form of an original bill commonly used consists of nine parts. The first part is the address of the bill to the person holding the great seal, the terms of which are' always prescribed by the court upon every change of the custody of the seal, or alteration in the style of the person to whom it is committed. In the second place are contained the names of the parties complainants, and their descrip- tions, 3 in which their abode is particularly required to be set forth, that the court and the parties defendants to the bijil may know where to resort to compel obedi- ' See Baring v. Nash, I Ves. & Bea. scription so given of a plaintiff is not 551. considered to be an allegation of the " g Edw. IV, 41 ; Prac. Reg. 57, truth thereof. See Albrecht v. Suss- Wy. ed. man, 2 Ves. & Bea. 323. ° It seems, however, that the de- Statement most against the pleader, and as meaning that the lessor was " otherwise entitled," or had an equitable title only. (Balls v. Musgrave, 3 Beav. 284.) Although it is a rule that an allegation is to be taken most strongly against the pleader, yet where a word m.a.Y j>er se be understood in two dif- ferent senses with equal fairness, and if understood in the one sense the bill would be demurrable, whereas, if understood in the other sense, the bill would be correctly framed, the former construction will be adopted : as where a bill for tithes is filed by a lessee thereof and by the vicar, and the bill states that the vicar " demised " the tithes to the lessee, and the vicar would be improperly made a coplaintiff if the demise were by deed, but not if it were by parol. (Foot v. Bessant, 3 Y. & C. Eq. Ex. 320.) * If a bill for relief is so vag^e that it does not state any certain case upon which a court of equity will grant relief, it will be demurrable for want of equity, although the plaintiff alleges his inability to state circum- stances more definitely, and prays a discovery. (Wormald v. De Lisle, 3 Beav. 18.) Allegations that an heir was brought up in poverty and without educa- tion, and kept in ignorance of his rights, and supplied with small sums of money, are too vague allegations of fraud to support a bill of discovery. A bill so framed is designated a fishing bill. (Munday z/. Knight, 3 Hare, 497.) 140 FRAME AND END OF THE ence to any order or process of the court, and particu- larly for payment of any costs which may be awarded against the plaintiffs, or to punish any improper con- duct in the course of the suit. The third part contains the case of the plaintiffs,* and' is commonly called the stating part of the bill." In the fourth place is the general charge of confederacy against the persons com- plained of, which has been already mentioned as com- monly inserted, though it seems unnecessary. Fifthly, if the plaintiffs are aware of a defense which may be made, and have any matter to allege which may avoid it, the general charge of confederacy is usually followed by an allegation that the defendants pretend or set up the matter of their defense, and by a charge of the matter which may be used to avoid it. This is com- monly called the charging part of the bill, and is some- times also used for the purpose of obtaining a discovery of the nature of the defendant's case, or to put in issue some matter which it is not for the interest of the plaintiffs to admit ; for which purpose the charge of pretense of the defendant is held to be sufficient.'^ Thus, if a bill is filed on any equitable ground by an heir who apprehends his ancestor has made a will, he may state his title as heir, and alleging the will by way of pretense of the defendant's claiming under it, make it a part of the case without admitting it.f The sixth ■ See II Ves. 574. '■' 3 Atk. 626 ; 11 Ves. 575. See, also, Flint v. Field, 2 Anstr. 543. * There is no rule that a fact on which the plaintiff's title to relief de- pends, if introduced by way of charge, is not as well pleaded as if it were introduced in the shape of what is technically called a statement, where such charge is a specific averment of the fact. (Houghton v. Reynolds, 2 Hare, 264. And see Harrison v. Wiltshire, 4 Law J. [N. S.) 260, and The Mayor of Rochester I-. Lee, 15 LawCh. R. J. [N. S.] 97; supra, ^. 136, note.) + " The charging part of a bill is as necessary to be answered as the SEVERAL KINDS OF BILLS, I4I part of the bill is intended to give jurisdiction of the suit to the court by a general averment that the acts complained of are contrary to equity, and tend to the injury of the complainants, and that they have no remedy, or not a complete remedy, without the assistance of the court ; but this averment must be supported by the case shown in the bill, from which it must be apparent that the court has jurisdiction * The bill having shown the title of the persons complaining to relief, and that the court has the proper jurisdiction for that purpose, in the seventh place prays, that the parties complained of may answer all the matters con- tained in the former part of the bill, not only accord- ing to their positive knowledge of the facts stated, but also according to their remembrance, to the informa- tion they may have received, and the belief they are enabled to form on the subject, f A principal end of an answer upon the oath of the defendants, is to sup- ply proof of the matters necessary to support the case of the plaintiifs ; and it is therefore required of the de- fendants, either to admit or deny all the facts set forth in the bill, with their attending circumstances, or to deny having any knowledge or information on the stating part. So far as the charges are material to anticipate and defeat a defense which may be set up by the defendant, they may be considered in the nature of a special replication. But the complainant has the same right to the defendant's answer to the charging part of the bill, to prove the truth of his special replication, as he has to an answer to the stating part, to prove the truth of that." (4 Paige, 373.) * The remark already made as to the charge of combination (note * to page 136), is also applicable to the jurisdiction clause. t Information does not mean only the information which the defendant actually at the time possesses, but also that which is obtainable from all the sources within his reach. The law considers him in possession of all the means of information which he has a right to possess ; and he must resort to the proper means for enforcing the right. (Adams' Equity, p. 75-) 142 FRAME AND END OF THE subject, or any recollection of it, and also to declare themselves unable to form any belief concerning it. But as experience has proved that the substance of the matters stated and charged in a bill may frequently be evaded by answering according to the letter only, it has become a practice to add to the general requisition that the defendants should answer the contents of the bill, a repetition, by way of interrogatory, of the mat- ters most essential to be answered, adding to the in- quiry after each fact an inquiry of the several circum- stances which may be attendant upon it, and the varia- tions to which it may be subject, with a view to pre- vent evasion, and compel a full answer.* This is com- monly termed the interrogating part of the bill ; and as it was originally used only to compel a full answer to the matters contained in the former part of the bill, it * Another object for which particular interrogatories are put is to call the matters of which discovery is sought to the remembrance of the de- fendant, where he might otherwise inadvertently, and not through willful evasion, state that he was unable to afford information. The usual way of interrogating as to a document in a bill, is, to ask generally, whether it was not in the words and figures, or to the purport and effect thereinbefore in that behalf mentioned and set forth, or in some other and what words and figures, or to some other and what purport and effect ? But if the defendant says he is unable to set forth whether it was to the purport and effect stated, or to what other purport or effect ; and yet it is a document to which he himself was a party, or of the pui"port or effect of which it is probable that he has some knowledge, it may often be expedient to amend the bill by interrogating him step by step as to par- ticulars expressed in the document, in order to direct his attention to each point, and suggest to his mind some points which he may remember when thus particularly interrogated as to them. In Nelson v. Ponsford (4 Beav.) Lord Langdale, M. R., observed, " It is probable that the defendant knows more than is stated in the answer. He has not, however, been interro- gated, step by step, as to the rent and the other particulars of the agree- , ment. * * * * jt is possible he may be able to answer some of the par- ticulars in detail, if put to him by amendment." SEVERAL KINDS OF BILLS. 143 must be founded on those matters.'* Therefore, if there is nothing in the prior part of the bill to war- rant an interrogatory, the defendant is not compellable to answer it : a practice necessary for the preservation of form and order in the pleadings, and particularly to keep the answer to the matters put in issue by the bill. But a variety of questions may be founded on a single charge, if they are relevant to it.^ Thus, if a bill is found against an executor for an account of the personal estate of his testator, upon the single charge that he has proved the will may be founded every inquiry which may be necessary to ascertain the amount of the estate, its value, the disposition made of it, the situation of any part remaining un- disposed of, the -debts of the testator, and any other circumstance leading to the account required. The prayer of relief is the next and eighth part of the bill, and is varied according to the case made, con- cluding always with a prayer of general relief, at the discretion of the court.^ To attain all the ends of the bill, it, ninthly and lastly, prays that process may issue * requiring the defendants to appear to and ' I Ves. 538 ; 6 Ves. 62 ; Faulder v. * They alone are defendants against Stuart, II Ves. 296 ; Bullock v. Rich- whom process is prayed. See Fawkes ardson, 11 Ves. 373 ; 11 Ves". 574. v. Pratt, I P. Wms. 593 ; and Windsor " I Ves. 318 ; II Ves. 301. w. Windsor, Dick. 707. ' Vide sup. p. 132. * " In the till, the fact must be set out as it is, with all equitable cir- cumstances, and proper interrogatories formed and put to the conscience of the defendant upon the fact and circumstances. " But no interrogatories can be put that do not arise from some fact charged in the body of the bill ; or, if such interrogatories be put, the defendant may either demur to such interrogatories as having no founda- tion in the bill, or may omit to answer them ; and if there be exceptions for want of an answer to such interrogatories, the exceptions on a refer- ence will be overruled with costs." (Forum Romanum, p. 214, Am. edition.) 144 FRAME AND END OF THE answer the bill, and abide the determination of the court on the subject ; adding, in case any defendant has privilege of peerage, or is a lord of parliament, a prayer for a letter missive before the prayer of process; and in case the attorney general, as an officer of the crown, is made a defendant, the bill, as before ob- served, instead of praying process against him, prays that he may answer it upon being attended with a copy. For the purpose of preserving property in dis- pute pending a suit, or to prevent evasion of justice, the court either makes a special order on the subject, or issues a provisional writ ; as the writ of injunction, to restrain the defendant from proceeding at the com- mon law against the plaintiff, or from committing waste, or doing any injurious act ; ' the writ of ne exeat regno to restrain the defendant from avoiding the plaintiff's demands by quitting the kingdom;'' and other writs of a similar nature. When a bill seeks to obtain the special order of the court, or a provisional writ, for any of these purposes, it is usual to insert, im- mediately before the prayer of process, a prayer for the order or particular writ which the case requires; and the bill is then commonly named from the writ so prayed, as an injunction bill, or a bill for a writ of ne exeat regno* Sometimes the writ of injunction is ' It is a general rule, that the writ ne exeat regno should be prayed for hy of injunction will not be granted un- bill (Anon. 6 Madd. 276) ; unless the less prayed for by a bill which is al- application be made in a cause depend- ready filed (Savory v. Dyer, Ambl. 70), ing. Collinson v. , 18 Ves. 353; or under special circumstances, which Moore v. Hudson, 6 Madd. 218 ; see the party applying undertakes to file further on the subject of this writ, Hyde forthwith (M'Namara v. Arthur, 2 Ball v. Whitfield, 19 Ves. 342 ; Raynes v. & B. 34g) ; but there are exceptions to Wyse, 2 Meriv. 472 ; Flack v. Holm, this general rule. See Wright v. Atr I Jac. & W. 405, and the cases therein kyns, I Ves.'&Bea. 313; Casamajor z». cited; Leake v. Leake, I Jac. & W. Strode, I Sim. & Stu. 381 ; Amory v. 605 ; Graves v. Griffith, I Jac. & W. Brodrick, I Jac. R. 530. 646 ; Blaydes v. Calvert, 2 Jac. & W. " It seems requisite that the writ of 211 ; Paunell v. Taylor, I Turn. R. 96. * hne exeat will not be granted, unless prayed for by the bill, at least SEVERAL KINDS OF BILLS. I45 sought, not as a provisional remedy merely, but as a continued protection to the rights of the plaintiff; and the prayer of the bill must then be framed accord- ingly. These are the formal parts of an original bill as usually framed. Some of them are not essential, and particularly it is in the discretion of the person who prepares the bill to allege any pretense of the defend- ant, in opposition to the plaintiff's claims, or to inter- rogate the defendant specially. The indiscriminate use of these parts of a bill in all cases has given rise to a common reproach to practicers in this line, that every bill contains the same story three times told. In the hurry of business it may be difficult to avoid giving ground for the reproach ; but in a bill prepared with attention the parts will be found to be perfectly dis- tinct, and to have their separate and necessary opera- tion. The form of every kind of bill bears a resemblance to that of an original bill ; but there are necessarily some variations, either arising from the purposes for which the bill is framed, or the circumstances under which it is exhibited ; and those variations will be noticed, together with the peculiarities attending each kind of bill. Every bill must be signed by counsel ; ' and if it ' Dillon z". Francis, Dick. 68 ; French a security, that, judging from written V. Dear, 5 Ves. 547 ; 2 Ves. & B. 358 ; instructions laid before him of the case Kirkley v. Burton, 5 Madd. 378, n. ; of the defendant as well as of the Webster v. Threlfall, i Sim. & Stu. 135 ; plaintiff, there appeared to him, at the Pitt V. Macklew, I Sim. & Stu. 136, n. time of framing it, good ground of suit. Lord Eldon declared that the signature 3d June, 1826, MSS. And see 3 Ves. of counsel to a bill is to be regarded as 501. where it appears that the plaintiff at the time of filing the bill knew that the defendant intended to leave the kingdom. (Sharp v. Taylor, n Sim.. 50.) 10 146 FRAME AND END OF THE contains matter criminal, impertinent * or scandalous; such matter may be expunged, and the counsel ordered to pay costs to the party aggrieved.' But nothing relevant is considered as scandalous,'' f ' Ord. in Chan. Ed. Bea. 165 ; Emer- ' 2 Ves. 24 ; 15 Yes. 477. son V. Dallison, i Ch. Rep. 194 ; 6 Madd. 252. * The setting forth important documents verbatim is not impertinence, but, if unnecessary, it may be visited in costs. (Lowe v. "Williams, 2 Sim. & Stu. 574-) Although it is not necessary, in an information, that relators should have any interest in the subject of the suit, yet a statement showing the nature of their interest is not impertinent, but is convenient, as, in the event of the information failing, the court is thereby enabled to make the parties pay the costs who are parties beneficially interested in the property. (Richards i/. The Attorney General, 12 CI. & Fin. 30.) In Woods V. Woods (10 Sim. 215), the bill stated .that a will in which there were several words misspelt, was " in the words and figures here- under set forth, the inditing and spelling thereof being set forth with the greatest accuracy; " and Sir L. Shadwell, V. C, held that this preface was impertinent ; and that it would have been sufficient to allege that the testator made his will " as follows : " — For other cases on this subject, see note * to p. 403, infra. \ Montriou v. Carrick, 6 Jur. 97, V. C. W. In a bill impeaching the validity of a will, on the ground of undue influence over the testator exercised by a female who takes under such will, an allegation that prior to the date of the will she engaged in a criminal connection with him, and openly cohabited with him as if she had been his wife, is not scandalous or impertinent. (Anonymous, i My. & Cr. 78.) So, if in a bill for setting aside a will on the ground of fraud and undue influence practiced on the testator by a female, there are allegations and interrogatories founded thereon, relating to her cohabitation with the tes- tator, though a married man, they are not scandalous or impertinent, as they relate to that which may be most material in the chain of evidence of undue influence. (Evans -u. Owen, 5 Law J. Ch. Rep. [N. S.] 74, M. R.) In a bill against an executor, praying for a receiver and an injunction against the receipt of the assets by the executor, on account of his mis- conduct, it is not scandalous nor impertinent to enter into minute details in order to prove that the executor is a person of drunken, violent, and disorderly habits, and of great poverty ; for these details, as evidence of SEVERAL KINDS OF BILLS. I47 2. Where two or more' persons claim ^ the same thing * by different or separate interests ,3, 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 custody ,= fears he may be hurt by some of them,* he may exhibit a bill of interpleader against ^ them/ f In this bill he must state his own rights, and their several claims ; and pray that they may inter- plead, so that the court may adjudge to whom the thing belongs, and he may be indemnified. If any suits at law are brought against him, he may also pray that the claimants may be restrained from proceeding till the right is determined.^ As the sole ground on which the jurisdiction of the ' Angel V. Hadden, 15 Ves. 244. bailment, where the parties may be ^ See 2 Ves. jr. 107 ; 15 Ves. 245 ; compelled to interplead at law. See Stevenson v. Anderson, 2 Ves. & B. 407 ; Langston v. Boylston, 2 Ves. jr. loi ; I Morgan v. Marsack, 2 Meriv. 107. Meriv. 405. It may be observed that ° And this may be where the claim he must not himself claim any interest of one is by virtue of an alleged legal, in the property. Mitchell v. Hayne, 2 and that of the other upon an alleged Sim. & Stu. 63. equitable right. Paris v. Gilham, Coop. ° I Eq. Cas. Abr. 80. R. 56 ; Martinius v. Helmuth, 2 Ves. & ' 2 Eq. Cas. Abr. 173 ; Cooper w. Bea. 412 (2d ed.) ; Morgan v. Marsack,, Chitty, I Burr. 20 ; and see lb. 37 ; Prac. 2 Meriv. 107. Reg. 78 ; Wy. ed. * I Eq. Cas. Abr. 80 ; 2 Ves. jr. 310 ; " Prac. Reg. 78, Wy. ed. ; E. I. and see Farebrother v. Prattent, I Dan. Comp. v. Edwards, 18 Ves. 376 ; Crog- Exch. R. 64 ; Farebrother v. Harris, gon v. Symoas, 3 Madd. 130 ; see I Jac. Ibid. 68. R. 205. ° This will not extend to cases of conduct, are material to the decree asked ; and the court will not limit the number of instances which the plaintiff may adduce for the purpose of strengthening his case. (Everet v. Prytherych, 6 Jur. 3, V. C. B.) * Glyn V. Duesbury, 11 Sim. 139. + It is essential to the character of a plaintiff to a bill of interpleader, that he should have no personal interest. (Moore v. Usher, 7 Sim. 383.) A bill is not sustainable as a bill of interpleader where it raises a question between the plaintiff and one of the defendants : as where it alleges that interest on a sum secured by a policy is not due from the insurance company by whom the bill is filed. (Bignold v. Audland, 1 1 Sim. 24.) 148 FRAME AND END OF THE court in this case is supported is the danger of injury to the plaintiflF from the doubtful titles of the defend- ants, the court will not permit the proceeding to be used coUusively to give an advantage to either party, nor will it permit the plaintiff to delay the payment of money due from him, by suggesting a doubt to whom it is due; therefore, to a bill of interpleader the plaintiff must annex an affidavit that there is no collu- sion between him and any of the parties ; ' and if any money is due from him he must bring it into court, or at least offer so to do by his bill.'' * 3, When an equitable right is sued for in an in- ferior court of equity, and by means of the limited jurisdiction of the court the defendant cannot have complete justice, or the cause is without the jurisdic- tion of the inferior court; the defendant ^ may file a bill in chancery, praying a special writ, called a writ of certiorari, to remove the cause into the court of chan- cery.-* This species of bill, having no other object than to remove a cause from an inferior court of equity, merely states the proceedings in the inferior court, shows the incompetency of that court, and prays the writ of certiorari. It does not pray that the de- fendant may answer, or even appear to the bill, and ' 2 Eq. Cas. Abr. 173 ; Errington v. ually paid into court. Dungey v. An- Att. Gen. Bunb. 303 ; 2 Ves. & B. 410 ; gove, 3 Bro. C. C. 36. And it may be 1 Jac. R. 205. observed, that where the whole subject- ' Prac. Reg. 79, Wy. ed. ; Earl of matter of the suit is money, and the Thanet v. Patteson, 3 Barnard, 247 ; 2 same has been paid into court, and the Ves. jr. 109 ; Burnett v. Anderson, 1 cause heard, the suit is at an end, so Meriv. 405 ; Warington v. Wheatstone, far as the plaintiff is concerned. See I Jac. R. 202 ; E. I. Comp. v. Edwards, Anon, i Vem. 351 ; 3 Barnard, 250. 18 Ves. 376 ; and see Statham v. Hall, ' Sowton v. Cutler, 2 Chan. Rep. I Turn. R. 30. In some instances it 108. seems, that if an injunction should have * Prac. Reg. 41 ; Boh. Priv. Lond. been prayed it would not be granted 291; Hilton -z/. Lawson, Gary's Rep. 48 ; ijnless the money should have been act- ■ i Vem. 178. : For further information on this subject, see t/t/ra, pp. 234-236. SEVERAL KINDS OF BILLS. 1 49 consequently it prays no writ of subpoena.' The pro- ceedings upon the bill are peculiar, and are particu- larly mentioned in the books which treat of the prac- tice of the court."" It may seem improper to consider certiorari bills under the heads of bills praying relief; but as they always allege some incompetency of the inferior court, or injustice in its proceedings,^ and seek relief against that incompetency or injustice, they seem more properly to come into consideration under this head than under any other. In case the court of chan- cery removes the cause from the inferior court, the bill exhibited in this court is considered as an original bill in the court of chancery, and is proceeded upon as such. Original bills not praying relief have been already mentioned to be of two kinds, i, bills to perpetuate the testimony of witnesses ; and 2, bills of discovery. I. A bill to perpetuate the testimony of witnesses must state the matter touching which the plaintiff" is desirous of giving evidence, and must show that he has some interest in the subject,-* and pray leave to examine witnesses touching the matter so stated, to the end that their testimony may be preserved and perpetuated.5 The bill ought also to show that the facts to which ' There are cases mentioned in the to institute such a suit, see 6 Ves. 260, books apparently to the contrary ; but 261 ; Lord Dursley v. Fitzhardinge, 6 they seem not to have been cases of Ves. 251 ; Allan v. Allan, 15 Ves. 130. bills praying merely the writ of cer- ' Rose v. Gannel, 3 Atk. 439 ; r tiorari. See i Gas. in Chan. 31. Sch. & Lefr. 316. As relief is not ' Prac. Reg. 82, Wy. ed. ; Stephen- prayed by a bill to perpetuate the testi- son V. Houlditch, 2 Vern. 491 ; Wood- mony of witnesses (Dalton v. Thomson, craft V. Kinaston, 2 Atk. 317; Pierce Dick. 97), the suit is terminated by their V. Thomas, I Jac. R. 54 ; Edwards v, examination ; and of course, therefore, Bowen, 2 Sim. & Stu. 514. is not brought to a hearing. Hall v. ' I Vern. 442. Hoddesdon, 2 P. Wms. 162 ; 2 Ves. * Mason v. Goodbume, Rep. temp. 497 ; Anon. Ambl. 237 ; Vaughan v. Finch, 391 ; Smith v. Att. Gen. Mich. Fitzgerald, i Sch. & Lefr. 316 ; Mor- 1777, in Chan. As to the nature of the rison v. Arnold, 19 Ves. 670. interest which is sufficient whereupon 150 FRAME AND END OF THE the testimony of the witnesses proposed to be exam- ined is conceived to relate cannot be immediately in^ vestigated in a court of law, as in the case of a person in possession without disturbance ; ' or that before the facts can be investigated in a court of law the evidence of a material witness is likely to be lost, by his death, or departure from the realm.^* To avoid objection to a bill framed on the latter ground it seems proper to annex to it an affidavit of the circumstances by which the evidence intended to be perpetuated is in danger of being lost ; ^ a practice adopted in other cases of bills which have a tendency to change the jurisdiction of a subject from a court of law to a court of equity, and which will be afterwards more particularly noticed. It seems another requisite to a bill of this kind that it should state that the defendant has, or that he pretends to have, or that he claims, an interest to contest the ' See Dnke of Dorset v. Girdler, if he have more, on the ground of their Prec. in Chan. 531 ; I Sim. & Stu. 88. being aged, or too ill or infirm to attend ' According to the latter part of in a court of law, and that he is there- this proposition, the right of action may fore likely to lose their testimony before be either in the plaintiff or defendant in the time of trial (i Sim. & Stu. 90), in equity. With reference to the defend- which case it seems that it ought to be ant, the time of bringing the action de- stated in the bill that the action was pending upon his will, the situation of brought before the same was filed. An- the plaintiff would be similar to that gell v. Angell, I Sim. & Stu. 83. On intimated in the former part of the the general subject see the cases cited, proposition in the text (i Sim. & Stu. i Sim. & Stu. 93, note, and Teale v. 89) ; and with respect to the plaintiff, Teale, i Sim. & Stu. 385. it must be understood to relate to the ^ Earl of Suffolk v. Green, I Atk. case of his not being able at present to 450. An affidavit of like circumstances sustain an action (Cox v. Colley, Dick, is also requisite where the object is 55 ; I Sim. & Stu. 114); for, if he should merely the examiiiation of the witnesses have such present right, his object could de bene esse. Angell v. Angell, I Sim. only be what is technically termed an & Stu. 83. And see Philips v. Carew, examination (^1? &»^ «j-j-?, upon the ground i P. Wms. 117 ; Shirley w. Earl Ferrers, of his having only one witness to a 3 P. Wms. 77. matter on which his claim depends, or. * Bills p perpetuate testimony seem divisible into two kinds ; namely, bills to perpetuate testimony, specifically so called, and bills to take testi- mony de bene esse. For some points as to these, the reader is referred to Story's Eq. PI. ss. 299-310. SEVERAL KINDS OF BILLS. I51 title of the plaintiff in the subject of the proposed testimony. ' 2. Every bill is in reality a bill of discovery ; but the species of bill usually distinguished by that title is a bill for discovery of facts resting in the knowledge of the defendant, or of deeds or writings, or other things in his custody or power, and seeking no relief in con- sequence of the discovery,* though it may pray the stay of proceedings at law till the discovery should be made. This bill is commonly used in aid of the juris- diction of some other court, as to enable the plaintiff to prosecute or defend an action at law, ° f a proceed- ing before the king in council, ^ or any other legal proceeding of a nature merely civil ■* before a jurisdic- ' See Lord Dursley v. Fitzhardinge, ' i Ves. 205. 6 Ves. 251. ' 2 Ves. 398. " 5 Madd. 18. * A bill which specifically prays a discovery only, but concludes with the prayer for general relief, is a bill for relief. But liberty will be given to amend by striking out the prayer for general relief. (Angell v. West- combe, 6 Sim. 30.) If, in the prayer of process, a bill prays that the defendant may abide such order and decree as the court may think proper to make, the bill is a bill for relief; and if, without such words, the bill would be a mere bill of discovery, it will be demurrable as a bill for relief. (Ambury v. Jones, I Younge, 199; James v. Herriott, 6 Sim. 428.) But the words "abide such order therein," without the word "decree," will not have this effect; because the word " order " must be considered as meaning such an order as is consistent with the general scope of the case made by the bill as a mere bill of discovery. (Baker v. Bramah, 7 Sim. 17.) A bill which, besides praying a discovery, prays for a commission to examine witnesses abroad in aid of the plaintiff's defense to an action, and for an injunction to restrain proceedings in the mean time, is not a bill for relief. And therefore a demurrer in bar of relief to such a bill, without mentioning discovery, is bad. (Mills v. Campbell, 2 Y. & C. Eq. Ex. 389.) + A defendant at law may file a bill of discovery, whether the object of it is to sustain a defense to an action, or rebut the evidence in support of the action. (Glascott v. The Governor & Company of the Copper Miners of England, n Sim. 305.) 152 FRAME AND END OF THE tion which cannot compel a discovery on oath ; ' ex- cept that the court has in some instances refused to give this aid to the jurisdiction of inferior courts.^* Any person in possession of an estate, as tenant or otherwise, may file a bill against a stranger bringing an ejectment, to discover the title under which the ejectment may be brought, ^ though the plaintiff may not claim any title beyond that of mere tenant or occupant, f A bill of this nature must state the mat- ter touching which a discovery is sought, the interest of the plaintiff and defendant in the subject, and the ' Dunn V. Coates, I Atk. 288 ; i Ves. " i Ves. 205. 205 ; Anon. 2 Ves. 45 1. ' t Ves. 249. * It has never been decided that a discovery will be enforced by the Court of Chancery in aid of the defense to a suit in a foreign court. But, at all events, it will not be enforced where the bill does not state that the plaintiff cannot have a discoyery in the foreign court. (Bent v. Young, 9 Sim. 180.) It has been decided -in New York that a bill of discovery will lie to aid the prosecution or defense of a civil suit in a foreign tribunal, (i Paige, 287.) t A bill of discovery in aid of a defense to an action cannot be sus- tained against a person who is not a party to the record at law, although the plaintiff at law is only the agent of such person, and has brought the action on his behalf And hence, where an action is brought by the agent of a foreign sov- ereign on bills of exchange, the acceptors thereof cannot make the sov- ereign a party to a bill of discovery in aid of their defense to such action. (The Queen of Portugal v. Glyn, 7 CI. & Fin. 466.) And upon the same principle, where an action is brought against underwriters on a policy of insurance, they cannot make a person not a party to the record at law a party to a bill of discovery against the plaintiff at law ; though they allege that the policy was effected by the plaintiff at law as agent for such other person. Such a practice might be made an engine for the oppression of persons alleged to be interested, but in reality not interested in the action ; and where such persons are also out of the jurisdiction, it might also be made a means of delaying and defeating the plaintiff at law. (Kerr v. Rew, 9 Law J. [N. S.] 148. L. C.) SEVERAL KINDS OF BILLS. 1 53 right of the first to require the discovery from the other. ' A bill seeking a discovery of deeds or writings sometimes prays relief founded on the deeds or writ- ings of which the discovery is sought. If the relief so prayed be such as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must annex to his bill~an affidavit that they are not in his custody or power, and that he knows not where they are, unless they are in the hands of the defend- ant ; "^ but a bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief grounded upon them, does not require such an affidavit. 3* If the title to the possession of the deeds and writ- ings of which the plaintiff prays possession depends on the validity of his title to the property to which they relate, and he is not in possession of that property, and the evidence of bis title to it is in his own power, or does not depend on the production of the deeds or writings of which he prays the delivery, he must estab- lish his title to the property at law before he can come into a court of equity for delivery of the deeds or writings. + II. Bills not original are either an addition to or a ' Cardale v. Watkins, 5 Madd. 18 ; I Ves. 344 ; 3 Atk. 132. But see Aston and see Moodaly v. Moreton, Dick. 652 ; v. Lord Exeter, 6 Ves. 288. s. c. I Bro. C. C. 468. ^ See Jones v. Jones, 3 Meriv. 161 ; ^ r Ves. 344 ; Hook v. Dorman, i I Madd. R. 193 ; Crow v. Tyrrell, Sim. & Stu. 227. 3 Madd. 179 ; Field v. Beaumont, I ' Godfrey v. Turner, i Vern. 247 ; Swanst. 204. Whithurch v. Golding, 2 P. Wms. 541 ; * The reason of this distinction is, that in the first mentioned case, where an affidavit is required, the plaintiff seeks to change the tribunal, by substituting the proceedings of a court of equity for the less tedious and less expensive procedure of a court of law. 154 FRAME AND END OF THE continuance of an original bill, or both. An imperfec- tion in the frame of a bill may generally be remedied by amendment ; but the imperfection may remain un- discovered whilst the proceedings are in such a state that an amendment can be permitted according to the practice of the court. This is particularly the case where, after the court has decided upon the suit as framed, it appears necessary to bring some other mat- ter before the court to obtain the full effect of the decision ; or, before a decision has been obtained, but after the parties are at issue upon the points in the original bill, and witnesses have been examined (in which case the practice of the court will not generally permit an amendment of the original bill),' some other point appears necessary to be made, or some additional discovery is found requisite. ° And though a suit is perfect in its institution, it may by some event subse- quent to the filing of the original bill become defective, so that no proceeding can be had, either as to the whole, or as to some part, with effect ; or it may become abated, so that there can be no proceeding at all, either as to the whole, or as to part of the bill. The first is the case when, although the parties to the suit may remain be- ' See c. IV. An amendment for the Bligh, P. C. 169. And with regard to purpose of adding parties (Anon. 2 Atk. the practice before the hearing, it may 15 ; 3 Atk. Ill, 371, and Palk v. Lord be observed, that after the cause is at Clinton, 12 Ves. 48 ; Daws w. Benn, i issue this court will not give the plaintifif Jac. & W. 513 ; Wellbeloved v. Jones, leave to amend, unless he shows not I Sim. & Stu. 40) ; or to correct a mere only the materiality of the proposed al- clerical error (Att. Gen. v. Newcombe, teration, but also that he was not in a 14 Ves. i), will be allowed at the hear- condition to have made it earlier. See ing of the cause. In the case of an in- Longman v. Calliford, 3 Anstr. 807 ; fant complainant, this liberty, it seems, Forrest, Exch. R. 13 ; Lord Kilcourcy would be granted without restriction, if v. Ley, 4 Madd. 212 ; Dean of Christ- for his benefit (Pritchard v. Quinchant, church v. Simonds, 2 Meriv. 467; Wright Ambl. 147) ; and even in ordinary cases ». Howard, 6 Madd. 106 ; M'Neill v. great indulgence has in this respect been Cahill, 2 Bligh P. C. 228. See Bamett shown. See Filkin v. Hill, 4 Bro. P. C. v. Noble, i Jac. & W. 227. . 640, Toml. ed. ; Palk v. Lord Clinton, " See Jones v. Jones, 3 Atk. IIO ; 12 Ves. 48 ; Woollands v. Crowcher, 12 Goodwin v. Goodwin, 3 Atk.' 370. Ves. 174 ; Hamilton v, Houghton, 2 SEVERAL KINDS OF BILLS, 155 fore the court, some event subsequent to the institution of the suit has either made such a change in the inter- ests of those parties, or given to some other person such an interest in the matters in litigation that the proceed- ings, as they stand, cannot have their full effect. The other is the case when, by some subsequent event, there is no person before the court by whom, or against whom, the suit, in the whole or in part, can be prosecuted. It is not very accurately ascertained in the books of practice, or in the reports, in what cases a suit be- comes defective without being absolutely abated, and in what cases it abates as well as becomes defective. But upon the whole it may be collected, " that if by any means any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective in proportion as that interest affects the suit ; so that although the parties to the suit may remain as before, yet the end of the suit cannot be obtained.^ And if such a change of interest is occasioned by, or is the consequence of, the death of a party whose interest is not determined by his death, or the marriage of a female plaintiff, the proceedings be- come likewise abated or discontinued, either in part or in the whole. For as far as the interest of a party dying extends, there is no longer any person before the court by whom or against whom the suit can be prose- cuted ; and a married woman is incapable by herself of prosecuting a suit. As the interest of a plaintiff gen- erally extends to the whole suit, therefore, in general, upon the death of a plaintiff, or marriage of a female ' It is impossible to give authorities be found that, in general, the grounds for everything asserted upon this head, of the decisions warrant the conclusions The books, in words, almost as fre- here drawn. quently contradict as support these as- " As an example, see Mole v. Smith, sertions. But it is conceived, that from I Jac. & W. 665. an attentive.perusal of the cases it will 156 FRAME AND END OF THE plaintiff, all proceedings become abated.' Upon the death of a defendant, likewise, all proceedings abate as to that defendant. But upon the marriage of a female defendant the proceedings do not abate, ^ though her husband ought to be named in the subsequent pro- ceedings. ^ If the interest of a party dying so deter- mines that it can no longer aflfect the suit, and no per- son becomes entitled thereupon to the same interest, which happens in the case of a tenant for life, or a per- son having a temporary or contingent interest, or an interest defeasible upon a contingency, the suit does not so abate as to require any proceeding to warrant the prosecution of the suit against the remaining parties; but if the party dying be the only plaintifi, or only defendant, there may be necessarily an end of the suit, no subject of litigation remaining. If the whole interest of a party dying survives to another party, so that no claim can be made by or against the representatives of the party dying — as, if a bill is filed by or against trustees or executors, and one dies not having possessed any of the property in question, or done any act relating to it which may be questioned in the suit ; or by or against husband and wife, in right of the wife, and the husband dies under circumstances which admit of no demand by or against ' I Eq. Cas. Abr. i, margin ; Dick, termined that where a female plaintiff 8 ; Adamson v. Hull, i Sim. & Stu. 249. has married, and has, notwithstanding, " 4 Vin. Abr. 147 ; PI. 20 ; i Vern. proceeded in a suit as a fenu sole, the 31°; mere want of a bill of revivor is not error I Ves. 182. The reason of the for which a decree can be reversed upon difference between the cases of a female a bill of review brought by the defend- plaintiff and defendant seems to be that ant. Lady Cramborne v. Dalmahoy, I a plaintiff seeking to obtain a right, the Chan. Rep. 231 ; Nels. Rep. 86. "And defendant may be injured by answering at law, if a woman sues or be sued a§ to one who is not entitled to sue for it ; sole, and judgment is against her as but a defendant merely justifying a pos- such, though she was covert, she shall session, the plaintiff cannot be injured be estopped, and the sheriff shall take by a decree against the person holding advantage of the estoppel." i Salk. that possession. And it has been de- 310 ; I Rol. Abr. 869, 1. 5a SEVERAL KINDS OF BILLS. I57 his representatives,' the proceedings do not abate. So if a surviving party can sustain the suit, as in the case" of several creditors, plaintiffs on behalf of themselves and other creditors.^ For the persons remaining before the court, in all these cases, either have in them the whole interest in the matter in litigation, or at least are competent to call upon the court for its decree. If, indeed, upon the death of the husband of a female plaintiff suing in her right, the widow does not proceed in the cause, the bill is considered as abated, and she is not liable to the costs.'^ But if she thinks proper to proceed in the cause, she may do so without a bill of revivor ; for she alone has the whole interest, and the husband was a party in her right, and therefore the whole advantage of the proceedings survives to her ; so that if any judgment has been obtained, even for costs, she will be entitled to the benefit of it.' But if she takes any step in the suit after her husband's death, she makes herself liable to the costs from the begin- ning. If a female plaintiff marries pending a suit, and afterwards, before revivor, her husband dies,* a bill of revivor becomes unnecessary, her incapacity to prose- cute the suit being removed ; but the subsequent proceedings ought to be in the name and with the description which she has acquired by the marriage. A decree on a bill of interpleader may terminate the suit as to the plaintiff, though the litigation may con- tinue between the defendants by interpleader ; ^ and in ■ Dr. Paiy v. Juxon, 3 Chan. Rep. I Sim. & Stu. 358 ; i Sim. & Stu. 494, 40 ; 2 Freem. 133 ; Shelberry v. Briggs, 495. 2 Vem. 249 ; Anon. 3 Atkyns, 726 ; see * Treat, on Star Cham. p. 3. sect. 3, Humphreys v. HoUis, I Jac. R. 73. Harl. MSS. ' As another example of the proposi- ' Coppin v. , 2 P. Wms. 496. tion in the text, the case of a suit by " Godkin and others against Earl joint tenants generally may be men- Ferrers, 1772. tioned. See 11 Ves. 309 ; i Meriv. 364. ' See above, p. 148, note 2. ' I Meriv. 364 ; Bumey v. Morgan, 158 FRAME AND END OF THE that case the cause may proceed without revivor,' not- withstanding the death of the plaintiff." There is the same want of accuracy in the books in ascertaining the manner in which the benefit of a suit may be obtained after it has become defective or abated by an event subsequent to its institution, as there is in the distinction between the cases where a suit becomes defective merely, and where it likewise abates. It seems, however, clear, that if any property or right in litigation, vested in a //«z«/'z^ is transmitted to another, the person to whom it is transmitted is entitled to supply the defects of the suit, if become defective merely, and to continue it, or at least to have the benefit of it, if abated. It seems also clear that if any property or right, before vested in a defendant, becomes transmitted to another, the plaintiff is entitled to render the suit perfect, if become defective, or to continue it, if abated, against the person to whom that property or right is transmitted. The means of supplying the defects of a suit, con- tinuing it if abated, or obtaining the benefit of it, ate ; I, by supplemental bill; 2, by bill of revivor; 3, by bill of revivor and supplement ; 4, by original bill in the nature of a bill of revivor ; and, 5, by original bill in the nature of a supplemental bill. The distinctions between the cases in which a suit may be added to or ■ Anon. I Vem. 351. 138 ; and see Blaclcbum v. Jepson, 17 " Where on a bill filed by a corpo- Ves. 473 ; s. c. 3 Swanst. 132. But ration aggregate, suing in their cor- where a bill is filed by a corporation porate capacity only, the names of the sole, having a personal interest, the suit persons forming the same had been in- necessarily abates by his death, so far advertently and unnecessarily inserted, as it affects his personal interest, and the members of the corporation having to that extent may be revived by his had individually no interest in the sub- personal representative ; and if the suit ject, the death of a person so improperly affect the rights of his successor, such named in the bill was not considered as successor may obtain the benefit of it / operating to abate the suit. 3 Swanst. in a different form. SEVERAL KINDS OF BILLS. 159 continued, or the benefit of it obtained by these several means, seems to be the following : I. Where the imperfection of a suit arises from a defect in the original bill,* or in some of the proceed- ings upon it, and not from any event subsequent to the institution of the suit, f it may be added to by a supplemental bill merely.' X Thus, a supplemental bill ' As a general rule, it has been laid Wignell, 2 Madd. 240 ; Usbome v. down that events which have happened Baker, 2 Madd. 379. See a very pe- subsequently to the filing of the orig- culiar case on this subject, in which the inal bill, ought not to be made the sub- plaintiflF, upon facts stated in the an- ject of amendment, but that they should swer of the defendant, amended his bill be brought before the court by a sup- in order to meet the defense which arose plemental bill. Humphreys v. Humph- therefrom. Knight v, Matthews, I reys, 3 P. Wms. 349 ; Brown v. Higden, Madd. 566. I Atk. 291 ; 3 Atk. 217 ; Pilkinton v. * A defect in a suit for a specific performance of a purchase contract is not supplied by a supplemental bill in a subsequent suit instituted before a decree in such subsequent suit, by a person claiming to be entitled to the purchase money. (Cattell 'v. Corrall, i Hare, 216.) If a person files two bills in succession, in different characters, against the same party, and the statements in the subsequent bill are inconsistent with the statements in the prior bill, they will be both dismissed, although in the subsequent bill the principal inconsistent statement in the prior bill is alleged to be erroneous, and although there is a prayer that such sub- secjftent bill may, if necessary, be considered supplemental to the prior suit. (Blackburn v. Staniland, 9 Jur. 1027.) t Where an original bill is filed for a dissolution of a partnership, on the ground of misconduct, other acts of misconduct occurring subsequently to the filing of the original bill should be made the subject of a supplemental bill. And where new matter which occurred subsequently to the filing of the original bill is introduced by amendment, this objection may be taken by the defendant, even in his an.swer, if he insists on the same advantage as if he had demurred or pleaded thereto. (Wray v. Hutchinson, 2 My. & K. 235.) When one of the defendants to an original bill dies without having appeared to it, the proper course is to bring his personal representative before the court by a supplemental bill ; and if there are no new facts, except the fact of his death, to be brought before the court, and his death does not alter the interest of any of the other defendants, it is not neces- sary to make them parties to such bill. (Collins v. Collins, 6 Jur. 49, V. C. E.) I A supplemental bill cannot be filed to an original bill on which no subpoenas have been served. (Stewart v. Nichols, Taml. 307.) l6o FRAME AND END OF THE may be filed to obtain a further discovery' from a defendant, to put a new matter in issue, or to add parties, where the proceedings are in such a state that the original bill cannot be amended for the purpose. = * And this may be done as well after as before a decree ; ' Boeve v Skipwith, 2 Ch. Rep. 142 ; There is the form of a bill of this nature Usborne v. Baker, 2 Madd. 379. in I Pres. Prac. of Chan. 146. " Goodwin -v. Goodwin, 3 Atk. 370. * If a plaintiff, when his cause is in such a state that he cannot amend his bill, discovers new matter which may tend to show that he is entitled to the relief prayed by his bill, he may file a supplemental bill for the purpose of putting the new matter in issue. (Crompton v. Wombwell, 4 Sim. 628.) But a supplemental bill cannot be filed to put in issue matter which, although not discovered till after the original cause was at issue, might have been introduced into the original bill by amendment, by leave of the court. (Colclough v. Evans, 4 Sim. 76.) Where, by inadvertence, a necessary party has not been brought before the court, and the suit is in that stage that the plaintiff cannot amend his bill, he may file a supplemental bill for the purpose of supplying the defect. (Semple v. Price, 10 Sim. 238.) And where liberty is given at the hearing to amend a bill by adding a new party, the plaintiff may bring such new party before the court by a supplemental bill, instead of by amendment. And such supplemental bill may be filed against the new party alone ; for as both suits will common for hearing together, a decree may be made between the defendants to the two suits, although they are not parties on the same record. (Greenwood V. Atkinson, 5 Sim. 419.) And the plaintiff may incorporate in such bill any other matter which might, independently of the order to amend, be the subject of a supple^ mental bill. (Wood v. Wood, 4 Y. & C. Eq. Ex. 135.) If a supplemental bill is filed by the assignees of a bankrupt, stating that since the filing of the original bill they had obtained the necessary consent to the institution of the suit, which they had not obtained before, such supplemental bill is demurrable ; for it is not the office of a supple- mental bill to supply the title to file the original bill. (King v. TuUock, 2 Sim. 469.) Where a suit is instituted, on the ground of fraud, to restrain an action commenced on a bill of exchange, and pending the suit the plaintiff in the action recovers payment, the plaintiff in equity may file a supplemental bill praying a repayment of the amount recovered and the costs of the action. (Pmkus V. Peters, 5 Beav. 253.) SEVERAL KINDS OF BILLS. l6l and the bill may be either in aid of the decree, that it may be carried fully into execution,' or that proper directions may be given upon some matter omitted in the original bill,^ * or not put in issue by it, or by the defense made to it ; ^ or to bring formal parties before the court ; * or it may be used as a ground to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review, of which it will be necessary to treat more at large in another place. But wherever the same end may be ' Woodward v. Woodward, Dick. " 3 Atk. 133. 33. Or it may be filed for tlie purpose ' Jones v. Jones, 3 Atk. ito. of appealing against the decree. Sep ' Ibid. 217. Giffard v. Hort, 2 Sch. & Lefr. 386. * Accordingly, where residuary legatees file a bill against an executor, praying that the usual accounts may be taken, and the executor, by his answer, alleges that there is a balance due to him from the testator's estate in respect of partnership transactions between them ;, but the decree does not direct the master to investigate the partnership accounts, but only to take the common accounts, the legatees may file a supplemental bill prajing for the taking of the partnership accounts, in order that the balance due from the executor may be ascertained, for such a bill is a bill filed to supply a defect in the former bill, and in aid of the decree in the former suit. (Cropper v. Knapman, 2 Y. & C. Eq. Ex. 338.) But where a creditor of a testator files a bill against the executor, pray- ing that the usual accounts may be taken, and the executor by his answer claims to be a creditor of the testator, by payments made on his account to more than the amount of the assets, and the decree does not direct the master to report, and he does not report as to this claim ; and the creditor files a supplemental bill, stating that the payments made by the executor were payments made on account of partnership transactions between the testator and the executor, and therefore were made partly for the executor himself, and praying that the partnership accounts may be taken, so that it may be ascertained what is due from the executor to the testator foj the payment of the debt due to the creditor ; such supplemental bill, accjDrd- ing to the decision in Grant v. Grant (5 Law J. Ch. Rep. [O. S.], 145), is demurrable, as an attempt to begin a new suit after having failed in a former suit for the same matter. This decision seems directly opposed to that in Cropper v. Knapman, for there does not appear to be any sub- stantial distinction between the two cases. The editor conceives that the. decision in Grant v. Grant is wrong. 11 l62 FRAME AND END OF THE obtained by amendment, the court will not permit a supplemental bill to be filed.' * When any event happens subsequent to the time of fihng an original bill,' which gives a new interest in the matter in dispute to any person not a party to the bill, as the birth of a tenant in tail, or a new interest to a party, as the happening of some other contingency, the defect may be supplied by a bill which is usually called a supplemental bill,^ and is in fact merely so with respect to the rest of the suit, though with respect to its immediate object, and against any new party, it has in some degree the effect of an original bill. If any event happens which occasions any alteration in the interest of any of the parties to a suit, and does not deprive a plaintiff suing in his own right of his whole interest in the subject, as in the case of a mort- gage or other partial change of interest ; or if a plaintiff suing in his own right is entirely deprived of his inter- est, but he is not the sole plaintiff, the defect arising from this event may be supplied by a bill of the same kind, which is likewise commonly termed, and is, in some respects, a supplemental bill merely, though in other respects, and especially against any new party, it has also in some degree the effect of an original bill. In all these cases the parties to the suit are able to ' See Baldwin v. Mackown, 3 Atk. Lord Harewood, 17 Ves. 144), and of 817 ; see p. 159, note i. such a nature, that the relief sought in '' I Atk. 291 ; 3 Atk. 217 ; see above, respect thereof cannot be obtained un- p. 159, note I. der the original bill. Adams v. Dowd- ' It may here be remarked, that ing, 2 Madd. 53 ; Mole v. Smith, ijaa such subsequent event must not only & W. 665. be relevant, but material (see Milner v. * See Parker v. Constable, 15 Law J. C. R. (N. S.) 16, and Blackburn v. Staniland, 9 Jur. 1027. And see Colclough v. Evans, 4 Sim. 76 ; Greenwood V. Atkinson, 5 Sim. 419; Wood z/. Wood, 4 Y. & C. Eq. Ex. 135, supra, p. 160, note *. SEVERAL KINDS OF BILLS. 1 63 proceed in it to a certain extent, though from the de- fect arising from the event subsequent to the filing of the original bill the proceedings are not sufficient to attain their full object. If the interest of a plaintiff suing in auter droit entirely determines by death or otherwise, and some other person thereupon becomes entitled to the same property under the same title, as in the case of new assignees under a commission of bankrupt, upon the death or removal of former assignees,' or in the case of an executor or administrator, upon the determina- tion of an administration d^lrante minori estate,'' or pendente lite, the suit may be likewise added to and continued by supplemental bill.^ For in these cases there is no change of interest which can affect the questions between the parties, but only a change of the person in whose n9.me the suit must be prosecuted ; and if there has been no decree, the suit may proceed, after the supplemental bill has been filed, in the same manner as if the original plaintiff had continued such, except that the defendants must answer the supple- mental bill, and either admit or put in issue the title of the new plaintiff". But if a decree has been obtained before the event on which such a supplemental bill be- comes necessary, though the decree be only a decree nisi, there must be a decree on the supplemental bill, declaring that the plaintiff in that bill is entitled to stand in the place of the plaintiff in the original bill, and to have the benefit of the proceedings upon it, ' Anon. I Atk. 88 ; s. c. I Atk. 571 ; detennined by death, a bill of revivor Brown v. Martin, 3 Atk. 218. by a subsequent administrator has been ^ See' Tones v. Basset, Free, in Ch. admitted. Owen v. Curzon, 2 Vern. 174 • Gary's Rep.'22 ; Stubbs v. Leigh, 237 ; Huggins v. York Build. Comp. 2 I Cox R. 133. Eq. Cas. Abr. 3. ' In the case of an administration 164 FRAME AND END OF THE and to prosecute the decree and take the steps neces- sary to render it effectual. ' If a sole plaintiff suing in his own right is de- prived of his whole interest in the matters in question by an event subsequent to the institution of a suit, as in the case of a bankrupt or insolvent debtor, whose whole property is transferred to assignees, or in case such a plaintiflF assigns his whole interest to another, the plaintiff being no longer able to prosecute for want of interest," and his assignees claiming by a title which may be litigated, the benefit of the proceedings can- not be obtained by a supplemental bill, but must be sought by an original bill ' in the nature of a supple- mental bill, which will be the subject of discussion in a subsequent page. If a commission of bankrupt issues against any party to a suit, or he is discharged as an insolvent debtor, his interest in the subject is, unless he is a mere trustee, generally transferred to his assignees;* and to bring them before the court a supplemental bill is necessary, to which the bankrupt or insolvent debtor is not usually required to be a party, although a bankrupt may dispute the validity of the commis- sion issued against him.' But, if plaintiff, a bankrupt ' Brown v. Martin, 3 Atk. 218. own right becomes a bankrupt, that, as ' Upon the question whether the a general rule, the suit abates. And bankruptcy of a sole plaintiff is, or the truth of the proposition will be ought to be considered an abatement more apparent from what is further of a suit, some difference of opinion has stated in the next page of the text. prevailed. See Sellas u. Dawson, rep. ° See Harrison v. Ridley, Com. Rep. I Atk. Sand. ed. 263 ; note, 4 Madd. 589. 171, and the cases of Randall v. Mum- * 9 Ves. 86 ; i Ves. & B. 547 ; and ford, 18 Ves. 424, and Porter v. Cox, 5 see, as to the exceptions, Copeman v. Madd. 80, in which revivor seems to Gallant, i P. Wms. 314 ; 2 P. Wms. have been thought necessary. But as 318 ; Ex parte Ellis, I Atk. loi ; I Atk. it cannot be stated a priori, that there 159, 234 ; 6 Ves. 496 ; Joy v. Campbell, will not be any surplus of the bank- I Sch. & Lefr. 328 ; Ex parte Martin, rupt's estate after satisfaction of the 19 Ves. 491 ; s. c. 2 Rose B. C. 331 ; creditors who may prove under the Ex parte Gillett, 3 Madd. 28. commission, it seems impossible to in- ' The commission, however, cannot si.st,, even where a plaintiff suing in his be actually impeached by him in the SEVERAL KINDS OF BILLS. 1 65 may proceed himself in the suit, if he disputes the validity of the commission, or a bankrupt or insolvent may proceed if the suit is necessary for his protection,' or if his assignees do not think fit to prosecute the suit, and he conceives that it is for his advantage to prosecute it.== Under those circumstances, however, he must bring the assignees before the court by sup- plemental bill, as any benefit which may be derived from the suit must be subject to the demands of the assignees,^ unless he seeks his personal protection only against a demand which cannot be proved, or which the person making the demand may not think fit to prove, under the commission issued against the bank- rupt, or from which the insolvent debtor may not be discharged.* And if by any event the whole interest of a defendant is entirely determined, and the same interest is become vested in another by a title not derived from the former party, as in the case of succession to suit ; his proper mode of disputing its ecuted, and his assignees should refuse validity is by an action at law, or by a to adopt that course, it seems, that to petition to supersede the same. See attain his object, he must petition for Hammond v. Attwood, 3 Madd. 158 ; leave to use their names for the pur- and see Bryant v. Withers, 2 Maule & pose of the proceeding, he indemnify- Selw. 123; 15 Ves. 468; Ex farte M'- ing them. 5 Ves. 587, 590 ; Benfield v. Gennis, 18 Ves. 289; s. c. i Rose B. C. Solomons, g Ves. 77 ; 3 Madd. 158. 60; Ex farte Bryant, 2 Rose B. C. I ; ' Although, it seems, the bankruptcy Ex parte Northam, 2 Ves. & Bea. 124; of a plaintiff, suing even in his own S. C. 2 Rose B. C. 140 ; Ex parte Price, right, does not, at least as a general 3 Madd. 228 ; Ex parte Ranken, 3 rule, abate the suit, it unquestionably Madd. 371; Ex parte Bass, + Madd. renders it defective (18 Ves. 427) ; and 270; Bayley v. Vincent, 5 Madd. 48; this court, upon a special application. Ex parte Gale, I Glyn & J. 43. will dismiss the bill (but, as it seems, * Anon. I Atk. 263 ; i Madd. R. without costs), unless the plaintiff make 425. And this seems to be another his assignees, or upon notice they make reason why it cannot be a general rule themselves parties thereto by supple- that the bankruptcy of the plaintiff mental bill within a limited time. Wil- causes an abatement, even where he liams v. Kinder, 4 Ves. 387 ; Randall sues in his own right. v. Mumford, 18 Ves. 424 ; Wheeler v. ' Lowndes v. Taylor, I Madd. R. Malins, 4 Madd. 171 ; Porter v. Cox 5 423 ; s. C. 2 Rose B. C. 365, 432. If Madd. 80 ; s. c. i Buck B. C. 469 ; Sharp an uncertificated bankrupt should be v. Hullett, 2 Sim. & Stu. 496. desirous that a suit in respect of the ' See supra, note 2. property should be commenced or pros- 1 66 FRAME AND END OF THE a bishopric or benefice, or of the determination of an estate taii; and the vesting of a subsequent remainder in possession, the benefit of the suit against the person becoming entitled by the event described must also be obtained by original bill in the nature of a supple- mental bill ; though if the defendant whose interest has thus determined is not the sole defendant, the new bill is supplemental as to the rest of the suit, and is so termed and considered. But if the interest of a defendant is not determined, and only becomes vested in another by an event subsequent to the institution of a suit, as in the case of alienation by deed or devise, or by bankruptcy or insolvency, the defect in the suit may be supplied by supplemental bill, whether the suit is become defective merely, or abated as well as become defective.' * For in these cases the new party comes before the court exactly in the same plight and condition as the former party, is bound by his acts, and may be subject to all the costs of the proceedings from the beginning of the suit.'' In all these cases, if the suit has become abated as well as defective, the bill is commonly termed a sup- plemental bill in the nature of a bill of revivor, as it has the effect of a bill of revivor in continuing the suit ' See Rutherford v. Miller, 2 Anstr. dismissed, was allowed to be proper 458 ; Russell v. Sharp, i Ves. & B. 500 ; under the circumstances ; which affords Whitcombe v. Minchin, 5 Madd. 91 ; a ground, besides the reasons already Foster v. Deacon, 6 Madd. 59 ; Turner intimated in relation to the plaintiff V. Robinson, I Sim. & Stu. 3. In the becoming bankrupt, so far as they cases of Monteith v. Taylor, 9 Ves. 615, apply, for presuming that the bank- and Rhode v. Spear, 4 Madd. 51, a mo- ruptcy of the defendant does not abate tion on the part of the defendant, after the suit, but merely renders it defective, his bankruptcy, that the bill might be ' i Atk. 89. * An assignee of an insolvent defendant should not bring himself before the court by supplemental bill, until he has applied to the plaintiff to file a supplemental bill for the purpose of bringing him (the assignee) before the court, and the plaintiff has declined or neglected to do so. (Phillips v. Clark, 7 Sim. 231.) SEVERAL KINDS OF BILLS. 1 67 2. Whenever a suit abates by death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, executor or administra- tor, so that the title cannot be disputed, at least in the Court of Chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be con- tinued by bill of revivor merely. If a suit abates by marriage of a female plaintiff, and no act is done to affect the rights of the party but the marriage, no title can be disputed ; the person of the husband is the sole fact to be ascertained, and therefore the suit may be continued in this case likewise by bill of revivor merely. When a suit became abated after a decree sierned and enrolled, ^ it was anciently the practice to revive the decree by a subpoena in the nature of a scire facias^ upon the return of which the party to whom it was directed might show cause against the reviving of the decree, 3 by insisting that he was not bound by the de- cree, ■* or that for some' other reason it ought not to be enforced against him, or that the person suing the sub- poena was not entitled to the benefit of the decree. If the opinion of the court was in his favor he was dis- missed with costs. If it was against him, ^ or if he did not oppose the reviving of the decree, interrogatories were exhibited for his examination touching any mat- ter necessary to the proceedings. ^ If he opposed the reviving of the decree on the ground of facts which were disputed, he was also to be examined upon inter- rogatories, to which he might answer or plead ; and issue being joined, and witnesses examined, the matter ' I Ves. 182, 184. * Brown v. Vermuden, I Cas. in ' n Ves. 311. Chan. 272. ^ See I Vern.^426; Sayer v. Bayer, " i Cas. in Chan. 273. Dick. 42. ° Anon. 2 Freem. 128. I 68 FRAME AND END OF THE was finally heard and determined by the court. But if there had been any proceeding subsequent to the de- cree, this process was ineffectual,' as it revived the decree only, and the subsequent proceedings could not be revived but by bill ; and the enrollment of decrees being now much disused, it is become the practice to revive in all cases, indiscriminately, by bill. ^ 3. If a suit becomes abated, and by any act beside the event by which the abatement happens the rights of the parties are affected, as by a settlement, ^ or a de- vise* under certain circumstances, though a bill of revivor merely may continue the suit so as to enable the parties to prosecute it, yet to bring before the court the whole matter necessary for its consideration, the parties must, by supplemental bill, added to and made part of the bill of revivor, show the settlement, or devise, or other act by which their rights are affected. And, in the same manner, if any other event which occasions an abatement is accompanied or followed by any matter necessary to be stated to the court, either to show the rights of the parties, or to obtain the full benefit of the suit, beyond what is merely necessary to show by or against whom the cause is to be revived, that matter must be set forth by way of supplemental bill added to the bill of revivor. = * ' Croster v. Wister, 2 Cha. Rep. 67 ; " See Merrywether v. Mellish, 13 Thorn v. Pitt, Sel. Cas. in Clian. 54; s. Ves. 161. c. 2 Eq. Cas. Abr. 180. <■ See Rylands v. Latouche, 2 Bligh ■' See Dunn v. Allen, i Vern. 426; P. C. 566. Pract. Reg. 90, Wy. ed. » See Russell v. Sharp, i Ves. & Bea. 500. * " If a person interested under a will files a bill for an account against the executors, not seeking to charge them for willful default, and dies pend- ing the suit, his personal representative cannot charge them by bill of re- vivor and supplement, if the acts complained of were known to tiie deceased plaintiff." (Garrett v. Noble, 6 Sim, 504.) SEVERAL KINDS OF BILLS. 1 69 4. If the death qf a party, whose interest is n6t determined by his death, is attended with such a trans- mission of his interest that the title to it, as well as the person entitled, may be litigated in the Court of Chan- cery, as in the case of a devise of a real estate, ' the suit is not permitted to be continued by a bill of revivor. An original bill, upon which the title may be litigated,'' must be filed ; and this bill will have so far the effect of a bill of revivor, that if the title of the representative substituted by the act of the deceased party is estab- lished, the same benefit may be had of the proceedings upon the former bill as if the suit had been continued by a bill of Revivor. ^ 5. If the interest of a plaintiff or defendant, suing or defending in his own right, wholly determines, and the same property becomes vested in another person not claiming under him, as in the case of an eccle- siastical person succeeding to a benefice, or a re- mainder-man in a settlement becoming entitled upon the death of a prior tenant under the same set- tlement, -* the suit cannot be continued by bill of revivor, nor can its defects be supplied by a supple- mental bill. For though the successor in the first case, and the remainder-man in the second, have the same property which the predecessor, or prior tenant, en- joyed, yet they are not in many cases bound by his acts, nor have they in some cases precisely the same rights. But, in general, by an original bill in the na- ture of a supplemental bill * the benefit of the former ' Backhouse z/. Middleton, I Cas. in Eq. Cas. Abr. 83; Minshull z/. Lord Chan. 173 ; s. c. 3 Ch. Rep. 39, and a Mohun, 2 Vern. 672 ; 6 Bro. P. C. 36, Freem. 132 ; Mosely, 44. Toml. ed. " I Eq. Cas. Abr. 2, pi. 2 and 7 ; * 2 Eq. Cas. Abr. 3, in margin ; Os- Huet V. Lord Say and Sele, Sel. Cas. borne v. Usher, 6 Bro. P. C. 20, Toml. in Chan. 53. ed. ; i Bro. P. C. 205 ; Lloyd v. Johnes, ' Clare v. Wordell, 2 Vern. 548 ; i 9 Ves. 37. * See Woods v. Woods, note ♦ to p. 196. I^O FRAME AND END OF THE proceedings may be obtained.' If the party whose in- terest is thus determined was not the sole plaintiff or defendant, or if the property which occasions a bill of this nature affects only a part of the suit, the bill, as to the other parties and the rest of the suit, is, as has been before observed, supplemental merely. There seems to be this difference between an original bill in the nature of a bill of revivor, and an original bill in the nature of a supplemental bill. Upon the first the benefit of the former proceedings is absolutely ob- tained, so that the pleadings in the first cause, and the depositions of witnesses, if any have been taken, may be used in the same manner as if filed or taken in the second cause;" and if any decree has been made in the first cause, the same decree shall be made in the second. 3 But in the other case a new defense may be made; the pleadings and depositions -^ cannot be used in the same manner as if filed or taken in the same cause ; and the decree, if any has been obtained, is no otherwise of advantage than as it may be an induce- ment to the court to make a similar decree. ^ The voluntary alienation of property pending a suit, by any party to it, is not permitted to affect the rights of the other parties if the suit proceeds without disclosure of the fact, except as the alienation may disable the party from performing the decree of the court.* Thus, if pending a suit by a mortgagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of ' 9 Ves. 54, 55. also Coke v. Fountain, I Vem. 413, and ' See Houlditch v. Marquis of Don- City of London v. Perkins, 3 Bro. P. C. egall, I Sim. & Stu. 491. 602, Toml. ed. as to reading in one ' Clare v. Wordell, 2 Vem. 548 ; cause depositions taken in another. Minshull v. Lord Mohun, 2 Vem. 672 ; ' See Lloyd v. Johnes, 9 Ves. jr. 37. I Eq. Cas. Abr. 83 ; i Atk. 89. " 2 Ves. & Bea. 205, 206 ; 4 Dow. P. * Earl of Peterborough v. Duchess C. 435. of Norfolk, Prec. in Chan. 212; see SEVERAL KINDS OF BILLS. 17I redemption, an absolute decree of foreclosure against the mortgagor will bind the second mortgagee, or assignee of the equity of redemption, who can only- have the benefit of a title so gained by filing a bill for that purpose.' But upon a bill by a mortgagor to redeem, if the mortgagee assigns pendente lite, the as- signee must be brought before the court by the mort- gagor, who cannot otherwise have a reconveyance of the mortgaged property. ° The bill necessary in the last case is merely supplementary ; but in the former, the bill must be an original bill in the nature of a cross- bill, to redeem the mortgaged property. If the party aliening be plaintiff" in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which, though in the nature of an original bill against the alienee, will be supplemental against the parties to the original suit, and they will be necessary parties to the supple- mental suit only so far as their interests may be affected by the alienation. ^ Generally, in cases of alienation pendente lite, the alienee is bound by the proceedings in the suit after the alienation, and before the alienee becomes a party to it;'' and depositions of witnesses taken after the alienation, before the alienee became a party to the suit, may be used by the other parties against the alienee as they might have been used against the party under whom he claims. ' ' 2 Atk. 175 ; II Ves. igg. ing him a party to the suit. Toosey v. " II Ves. 199; and see Wetherell v. Burchell, l Jac. R. 159. Collins, 3 Madd. 255. ■* It may be observed, however, that ^ There is an instance in which the the alienee may by svipplemental bill, court, in a case of this kind, allowed an in the nature of an original bill, make alienee of a. plaintiff to participate in himself a party to the suit. * Foster v. certain interlocutory proceedings with- Deacon, 6 Madd. 59; and see Binks v. out previously requiring a supplemental Binks, reported 2 Bligh P. C. 593, note. , bill to be filed for the purpose of mak- ' See Garth v. Ward, 2 Atk. 174. * See note * to p. 166. 1^2 FRAME AND END OF THE Having considered generally the distinctions be- tween the several kinds of bills by which a suit becomes defective or abated, may be added to or con- tinued, or by which the benefit of the suit may be obtained, it remains in this place to consider more particularly the frame of the first three of those kinds. The other two will form part of the subject to be considered under the next head. I. A supplemental bill must state the original bill, and the proceedings thereon ; and if the supplemental bill is occasioned by an event subsequent to the orig- inal bill, it must state that event, and the consequent alteration with respect to the parties ; and, in general, the supplemental bill must pray that all the defendants may appear and answer to the charges it contains. For if the supplemental bill is not for a discovery merely, the cause must be heard upon the supple- mental bill at the same time that it is heard upon the original bill, if it has not been before heard ; and if the cause has been before heard, it must be further heard upon the supplemental matter.' If indeed the alteration or acquisition of interest happens to a defendant, or a person necessary to be made a de- fendant, the supplemental bill may be exhibited by the plaintiff in the original suit against such person alone, and may pray a decree upon the particular supplemental matter alleged against that person only," unless, which is frequently the case, the interests of the other defendants may be affected by that decree. Where a supplemental bill is merely for the purpose of bringing formal parties before the court as de- fendants, the parties defendants to the original bill ' 2 Madd. 60. » See Brown v. Martin, .3 Atk. 217. SEVERAL KINDS OF BILLS. 1 73 need not in general be made parties to the supple- mental.' * 2. A bill of revivor must state the original bill.f and the several proceedings thereon, and the abate- ment; it must show a title to revive,^ and charge ' See Brown v. Martin, 3 Atk. 217. ° Com. Rep. 590. * Where a bill is filed by one of two next of kin against the executors of a testator, and in consequence of an objection taken by the answer of the executors for want of parties, a supplemental bill is afterwards filed to bring- another next of kin before the court, the executors must be parties to the supplemental bill, in order that they may have an opportunity of stating upon the pleadings any case they may have as against such other next of kin. (Jones v. Howells and Jones v. Godsall, 2 Hare, 342.) Where one of several coplaintiffs in an original suit mortgages his interest and becomes insolvent, defendants in such original suit who are trustees for the plaintiff are necessary parties to a supplemental bill filed by the other coplaintiffs against the mortgagee and provisional assignee ; for otherwise the accounting parties, the trustees, might not know till the hearing to whom they were to account. (Feary v. Stephenson, i Beav. 42.) In order to determine a question as to parties to a supplemental bill depending on facts alleged in the original bill, the court is bound to look at the allegations in the original bill. (Pinkus v. Peters, 5 Beav. 253.) On this subject see also Greenwood v. Atkinson, note* to p. 160, supra, and Collins v. Collins, note t to p. 1 59, supra. t The 49th order of Aug. 1841, declares that " it shall not be necessary in any bill of revivor to set forth any of the statements in the pleadings in the original suit, unless the special circumstances of the case may re- quire it." Prior to this order, it was necessary that a bill of revivor against new parties should set forth so much of the original bill as shows the plaint- iff's title to revive, otherwise it was demurrable. (Phelps v. Sprowle, 4 Sim. 318.) And even now it is necessary for a plaintiff in a bill of revivor to state enough to show his title to revive the original suit against the defendant to the bill of revivor, and the precise character in which the defendant is brought before the court. For the statements of the bill of revivor cannot be explained by importing into it the statements of the original bill ; for if that were allowed, the defendant to the bill of revivor could not safely demur until he had taken a copy of the original bill. (Griffiths v. Rickitts, 3 Hare, 484.) 174 FRAME AND END OF THE that the cause ought to be revived, and stand in the same condition with respect to the parties in the bill of revivor * as it was in respect to the parties to the original bill at the time the abatement happened ; and it must pray that the suit may be revived accordingly. It may be likewise necessary to pray that the defend- ant may answer the bill of revivor, as in the case of a requisite admission of assets by the representative of a deceased party.' In this case, if the defendant does admit assets, the cause may proceed against him upon an order of revivor merely ; but if he does not make that admission, the cause must be heard for the purpose of obtaining the necessary accounts of the estate of the deceased party to answer the demands made against it by the-suit ; and the prayer of the bill, therefore, in such case usually is, not only that the suit may be re- vived, but also, that in case the defendant shall not admit assets to answer^ the purposes of the suit, those accounts may be taken, and so far the bill is in the nature of an original bill. If a defendant to an original bill dies before putting in an answer, or after an answer to which exceptions have been taken, or after an amendment of the bill to which no answer has been given, the bill of revivor, though requiring in itself no answer, must pray that the person against whom it seeks to revive the suit may answer the original bill, ' Prac. Reg. go, Wy. ed. * If a defendant dies having appointed two executors, and only one of them proves, it is sufficient for the plaintiff to revive the suit against that executor. (Strickland v. Strickland, 12 Sim. 463.) When a suit has abated by the death of a coplaintiff, whose right de- volves to his representatives, it can only be revived by a bill, to which these representatives, the other plaintiffs, and all the defendants to the original bill are parties. (Cave v. Cork, 12 Law J. [N. S.] 156, V. C. B.) SEVERAL KINDS OF BILLS. 1 75 or so much of it as the exceptions taken to the answer of the former defendant extend to, or the amendment remaining unanswered. Upon a bill of revivor the defendants must answer in eight days after appearance, and submit that the suit shall be revived, or show cause to the contrary ; and in default, unless the defendant has obtained an order for further time to answer, the suit may be revived without answer, by an order made upon motion as a matter of course. ^ The ground for this is an allegation that the time allowed the defendant to answer by the course of the court is expired, and that no answer is put in ; it is therefore presumed that the defendant can show no cause against reviving the suit in the manner prayed by the bill." An order to revive may also be obtained in like manner if the defendant puts in an answer submitting to the revivor, or even without that submission, if he shows no cause against the revivor. Though the suit is revived of course in default of the defendant's answer within eight days, he must yet put in an answer if the bill requires it ; as, if the bill seeks an admission of assets, or calls for an answer to the original bill, the end of the order of revivor being only to put the suit and proceedings in the situation in which they stood at the time of the abatement, and to enable the plaintiff to proceed accordingly. And notwithstanding an order for revivor has been thus obtained, yet if the defendant conceives that the plaintiff is not entitled to revive the ' See Harris v. Pollard, 3 P. Wms. in general revivor is necessary to war- 348. rant-any proceeding after abatement (i " The court, after abatement of a Ves. 186 ; Roundell v. Currer, 6 Ves. suit, has acted without revivor in some 250), except proceedings to compel re- instances, v?here the rights of the par- vivor, or to prevent injury to the sur- ties have been fully ascertained by de- viving parties, if the persons entitled to creet or by subsequent proceedings ; but revive neglect to do so. 1^6 FRAME AND END OF THE suit against him, he may take those steps which are necessary to prevent the further proceeding on the bill, and which will be noticed in treating of the different modes of defense to bills of revivor ; and though these steps should not be taken, yet, if the plaintiff does not show a title to revive, he cannot finally have the benefit of the suit when the determination of the court is called for on the subject' If a decree be obtained against an executor for pay- ment of a debt of his testator, and costs, out of the assets, and the executor dies, and his representative does not become the representative of the testator, the suit may be revived against the representative of the testator, and the assets of the testator may be pursued in his hands, without reviving against the representa- tive of the original defendant.'' After a cause is revived, if the person reviving finds the original bill to require amendment, and the plead- ings are in such a state that the amendment of the bill would be permitted if the deceased party were living, the bill may be amended notwithstanding the death of that party, and matters may be inserted which existed before the original bill was filed, and stated as if the deceased party had been living.^ After a decree a defendant may file a bill of revivor, if the plaintiffs, or those standing in their right, neglect to do it.-* * For then the rights of the parties are ascer- ' 3 P. Wms. 348. * The general proposition, that a ' 3 Atk. 773. And see Johnson v. defendant or his representatives, if he Peck, 2 Ves. 465. or they have an interest in the further ' Kelips V. Paine, 15 March, 1745 ; prosecution of the suit, may revive, if Philips V. Derbie, Dick. 98. the plaintiffs, or those standing in their * Where a suit has become abated after a decree for an account, and the plaintiff neglects to revive the suit, a defendant who is interested in the account may file a bill to revive it and prosecute the decree, although he could not have filed the original bill. (Devaynes v. Morris, i M. & C. ^13.) SEVERAL KINDS OF BILLS. 1 77 tained, and plaintiffs and defendants are equally enti- tled to the benefit of the decree, and equally have a right to prosecute it. ' The bill of revivor in this case, therefore, merely substantiates the suit, and brings be- fore the court the parties necessary to see to the execu- tion of the decree, and to be the objects of its opera- tions, rather than to litigate the claims made by the several parties in the original pleadings, ' except so far as they remain undecided. In the case of a bill by creditors on behalf of themselves and other creditors, any creditor is entitled to revive. ^ A suit become entirely abated may be revived as to part only of the matter in litigation, or as to part by one bill, and as to the other part by another. Thus, if the rights of a plaintiff in a suit upon his death become vested, part in his real, and part in his personal representatives, the real representative may revive the suit so far as con- cerns his title, and the personal so far as his demand extends. * 3. A bill of revivor and supplement is merely a compound of those two species of bills, and in its separate parts must be framed and proceeded upon in the same manner.* right, neglect so to do, seems to be now ' That is, of course, after he hath fully established. See Kent v. Kent, proved his debt. See Pitt and the Prec. in Chan. 197 ; i Eq. Cas. Abr. 2 ; Creditors of the Duke of Richmond, i 2 Vem. 219, 297 ; Williams v. Cooke, Eq. Cas. Abr. 3. And see Dixon v. 10 Ves. 406 ; Horwood v. Schmedes, 12 Wyatt, 4 Madd. 392 ; i Sim. & Stu. 494.. Ves. 311. And see Gordon v. Bertram, And, in such a suit, the personal repre- I Meriv. 154; Adamson v. Hall, i sentative of one of the plaintiffs de- Turn. R. 258; Bolton V. Bolton, 2 Sim. ceased may revive. Bumey w. Morgan, & Stu. 371. I Sim. & Stu. 358. ' See, however. Anon. 3 Atk. 6gi, * Ferrers v. Cherry, I Eq. Cas. Abr. and Lord Stowell v. Cole, 2 Vem. 296. 3, 4. ' See Finch w. Lord Winchelsea, I Eq. Cas. Abr. 2. * Where a suit abates after a general demurrer for want of equity has been filed, but before it has been heard, the plaintiff, or a person claiming in the same right, is at liberty to file a bill of revivor and supplement, alleg- 13 lyg FRAME AND END OF THE III. Bills in the nature of original bills, though oc- casioned by former bills, are of eight kinds : i. Cross- bills. 2. Bills of review, to examine and reverse de- crees signed and enrolled. 3. Bills in the nature of bills of review, to examine and reverse decrees either signed and enrolled, or not, brought by persons not bound by the decrees. 4. Bills impeaching decrees upon the ground of fraud. 5. Bills to suspend the operation of decrees on special circumstances, or to avoid them on the ground of matter subsequent. 6. Bills to carry decrees into execution. 7. Bills in the nature of bills of revivor. And, 8. Bills in the nature of supplemental bills. I. A cross-bill is a bill brought by a defendant against a plaintiff,' or other parties in a former bill depending, touching the matter in question in that billet A bill of this kind is usually brought to obtain • It has been decided that a cross- ' For an example of the sense in till may be filed in chancery to an orig- which this proposition is to be under- inal bill in the Exchequer. * Glegg v. stood, see Hilton v. Barrow, I Ves. jr. Legh, 4 Madd. 193 ; Parker v. Leigh, 6 284, and see Piggott v. Williams, 6 Madd. 115. Madd. 95. ing such supplemental matter as may be necessary to show by and against whom an order to revive may properly be obtained ; but he is not at lib- erty to claim the same or additional relief by adding supplemental matter in corroboration of the original claim, and not required for the purpose of showing by and against whom an order to revive may properly be obtained. (Bampton v. Birchall, 5 Beav. 330.) * See note t to p. 103, supra. t To a suit instituted to obtain the benefit of an executed contract, a defense founded on a mistake as to the quantity of the interest intended to pass, or on inadequacy of consideration, or on the substitution of another contract, cannot be made by answer, but must be made by a cross-bill. (Richards v. Bayly, i Jones & Latouche, 120 ; Nash v. Flyn, Id. 162.) To a bill for a specific performance of a partnership, a defendant can- not make the misconduct of another partner available as a defense except by means of a cross-bill. (England v. Curling, 8 Beav. 129.) Where a suit is instituted by the lessees of an ecclesiastical corporation for an account and payment of the value of tithes, to which suit the cor- SEVERAL KINDS OF BILLS. 179 either a necessary discoveiy, or full relief to all parties. It frequently happens, and particularly if any question 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 neces- saiy for some or one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring- the litigated point properly before the court.^ A cross- bill should state the original bill, and proceedings thereon, and the rights of the party exhibiting the bill which are necessary to be made the subject of cross- litigation, or the ground on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill. But a cross-bill being generally considered as a defense,^ or as a proceeding to pro- cure a complete determination of a matter already in litigation in the court, the plaintiff is not, at least as against the plaintiff in the original bill, obliged to show ' There is an instance, however, in on by the plaintiff, and submits to per- which this court will, it seems, contrary form the same, for, in such a case, if the to the old practice, give the benefit of a court decide in favor of that stated'by cross-bill to a defendant upon his an- the defendant, it will decree the same swer, namely, where the original bill is to be executed. Fife v. Clayton, 13 Ves. for specific performance, and he proves 546 ; 15 Ves. 525. an agreement different from that insisted " 3 Atk. 812. poration are not parties, the occupiers, who are the defendants thereto, cannot file a cross-bill against the corporation, as well as against the les- sees, for a discovery and production of documents. For such a suit is regarded as a mere possessory suit, and not as establishing the right to tithe, and therefore the corporation has no interest in the suit. And it would be extremely mischievous if a tenant in fee, whenever a dispute arises between his lessee and others, were to be compelled to produce his title deeds at the request of those other persons, and for the purpose of destroying his own title. (Tooth v. Dean and Chapter of Canterbury, 3 Sim. 49.) I So FRAME AND END OF THE any ground of equity to support the jurisdiction of the court.' A cross-bill may be filed to answer the purpose of a plea puis darrein continuance at the conimon law. Thus, where, pending a suit, and after replication and issue joined, the defendant, having obtained a release, attempted to prove it viva voce at the hearing, it was determined that the release not being in issue in the cause, the court could not try the fact, or direct a trial at law for that purpose ; and that a new bill must be filed to put the release in issue. In the case before the court, indeed, the bill directed to be filed seems to have been intended to impeach the release on the ground of fraud or surprise, and therefore to have been a proceeding on the part of the plaintiflF in the original bill. But it was clearly determined that without being put in issue in the cause by a new bill, it could not be used in proof.'' Upon hearing a cause, it sometimes appears that the suit already instituted is insufficient to bring be- fore the court all matters necessary to enable it fully to decide upon the rights of all the parties. This most commonly happens where persons in opposite interests are codefendants, so that the court cannot determine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to a complete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross--bill has not been exhibited to remove the difficulty, the court will direct a bill to be filed,, in order to bring all the rights of all the parties ' Doblet'.. Potman, Hardr.i6o. And. 3 Swanst. 492, 474. See as to, filing a see Sir John Warden's case, mentioned supplemental bill, where a matter has by Blackstone, in i Bl. Rep. 132. not been properly put in issue, Jones w. ' Hayne ?/, Hayne, 3 Ch. Rep. 19 ; Jones^ 3 Atk. no ; I Jac. & W. 339. SEVERAL KINDS OF BILLS. l8l fully and properly for its decision ; and will reserve the directions or declarations which it may be necessary to give or make touching the matter not fully in litigation by the former bill, until this new bill is brought to a hearing/ 2. The object of a bill of review is to procure an examination and reversal of a decree^ made upon a former bill, and signed by the person holding the great seal, and enrolled.^ It may be brought upon error of law appearing* in the body of the decree itself,' or upon discovery of new matter.** In the first case the decree can only be reversed upon the ground of the apparent error ; ' as if an absolute de- cree be made against a person, who upon the face of it appears to have been at the time an infant.^ A bill of this nature may be brought without the leave of the ' If a creditor who hath come in ^ l Roll. Ab. 382 ; Venables w.Foyle, under a decree against his debtor re- I Cas. in Chan. 4 ; Tothill, 41. quire relief, for the purpose of assisting ° Grice v. (Joodwin, Free, in Chan, the investigation before the master, 260 ; 3 P. Wms. 371. which cannot be obtained by a rehear- ° Le Neve v. Norris, 2 Bro. P. C. 73, ing of the original cause, he may, with- Toml. ed. ; and see 17 Ves. 178. This out direction of the court, seek it by a term includes new evidence of facts put cross-bill. Latouche v. Lord Dunsany, in issue, which would materially affect I Sch. & Lefr. 137. the judgment of the court (16 Ves. 350). ' There can be no bill of review See Ord v. Noel (6 Madd. 127), which, upon a decree of the court on excep- although a case relating to a supple- tions to a decree of commissioners of mental bill in the nature of a bill of re- charitable uses, under the statute. See view, seems to show that the matter Windsor v. Inhabitants of Farnham, must be material, and such at the least Cro. Car. 40 ; Saul v. Wilson, 2 Vem. as will raise a fit subject for judgment 118. Nor, upon a decree of this court in the cause. confirming a judgment of the lord ' Lady Crambome v. Dalmahoy, I mayor, respecting tithes in London, Ch. Rep. 231 ; Nels. Rep. 86 ; Prac. under the statute 37 Hen. VIII, c. 12 ; Reg. 94, Wy. ed. ; 4 Vin. Abr. 414. Pridgeon's Case, Cro. Car. 351. " Prac. Reg. 225, Wy. ed.; 17 Ves. " Tothill, 47 ; Boh. Curs. Cane. 353 ; 178. Taylor v. Sharp, 3 P. Wms. 371. * " The mere propriety of a former decree cannot be questioned by bill of review ; it is only where there is error on the face of it that such a bill can be sustained." (Haig v. Homan, 8 CI. & F. 321.) 1 82 FRAME AND END OF THE court previously given.' * But if it sought to reverse a decree signed and enrolled, upon discovery of some new matter," the leave of the court must be first ob- tained ;3 and this will not be granted but upon allega- tion upon oath that the new matter + could not be produced or used^ by the party claiming _ the benefit of it at the time when the decree was made.^ If the court is satisfied that the new matter is relevant and material, and such as might probably have occasioned a different determination,' it will permit a bill of re- view to be filed.^ Error in matter of form only, though apparent on the face of a decree, seems not to have been consid- ered as sufficient ground for reversing the decree;' and matter of abatement has also been treated as not capable of being shown for error to reverse a decree." It has been questioned whether the discovery of new matter not in issue in the cause in which a decree has been made, could be the ground of a bill of re- view ; " and whether the new matter on which bills of ' 2 Atk. 534 ; Houghton v. West, 2 Atk. 529 ; and see Willan o. Willan, Bro. P. C. 88, Toml. ed. 16 Ves. 86. '' 2 Ves. 576 ; 3 P. Wms. 372 ; Nels. ' Lord Portsmouth v. Lord Effing- Rep. 52. ham, I Ves. 430 ; Young v. Keighly, ° Tothill, 42 ; 2 Atk. 534 ; 17 Ves. 16 Ves. 348. But leave to file a bill of 177- review is matter of discretion yiiih. the ' See O'Brien v. O'Connor, 2 Ball court. See Wilson v. Webb, 2 Cox & B. 146. R. 3. ' See I Ves. 434 ; Patterson and ' Jones v. Kendrick, 5 Bro. P. C. Slaughter, Ambl. 292, and 16 Ves. 350. 244, Toml. ed. ; but the cause was com- ° 2 Bro. P. C. 71, Toml. ed. ; Pract. promised. Hartwell v. Townsend, 2 Reg. 95, Wy. ed. ; Ambl. 293. Bro. P. C. 107, Toml. ed. ' Lord Portsmouth v. Lord Effing- '° Slingsby v. Hale, I Cas. in Chan, ham, I Ves. 430 ; Bennett v. Lee, 2 122 ; s. c. i Eq. Cas. Abr. 164. " See 16 Ves. 354. * A person who was not a party to a suit for the construction of a will, may file a bill, after a decree enrolled in that suit, to have the con- struction of the will reconsidered and redetermined, without leave of the court. (Urquhart v. Urquhart, 13 Sim. 623.) SEVERAL KINDS OF BILLS. 1 83 , review have been founded has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original bill.' A case, indeed, can rarely happen in which new matter discovered would not be, in some degree, evidence of matter in issue in the original cause, if the pleadings were prop- erly framed. Thus, if after a decree, founded on a revocable deed, a deed of revocation and new limita- tions were discovered ; as it would be a necessary alle- gation of title under the revocable deed that it had not been revoked, the question of revocation would have been in issue in the original cause, if the plead- ings had been properly framed. So if after a decree founded on a supposed title of a person claiming as heir, a settlement or will were discovered which de- stroyed or qualified that title, it would be a necessary allegation of the title of the person claiming as heir, that the ancester died seized in fee simple, and intes- tate. But if a case were to arise in which the new matter discovered could not be evidence of any mat- ter in issue in the original cause, and yet clearly demonstrated error in the decree, it should seem that it might be used as ground for a bill of review, if relief could not otherwise be obtained.** It is scarcely pos- sible, however, that such a case should arise which might not be deemed in some degree a case of fraud, ' Ambl. 293. 16 Ves. 348. And see Ord v. Noel (6 ' This court refused its leave to file Madd. 127), and Bingham f. Dawson a bill of review, where it would have (i Jac. R. 243), which, although cases been the means of introducing an en- relating ,to supplemental bills in the tirely new case, of the matter of which nature of bills of review, illustrate this the plaintiff was- sufficiently well ap- principle. See also Ludlow 7a Lord prized to have been able, with the exer- Macartney, 2 Bro. C. C. 67, Toml. ed. ; tion of reasonable diligence, to have Le Neve v. Norris, 2 Bro. P. C. 73, brought the same at first completely Toml. ed. ; M'Neill v. Cahill, 2 Bligh before the court. Young v. Keighly, P. C. 228. * See Partridge v. Usborae, note * to page 185, in/ra. 184 FRAME AND END OF THE and the decree impeachable on that ground, In the case where the doubt before mentioned appears to have been stated, the new matter discovered, and alleged as ground for a bill of review, was a purchase for valuable consideration, without notice of the plaintiff's title : this could only be used as a defense ; and it seems to have been thought that although it might have been proper, under the circumstances, if the new matter had been discovered before the decree, to have allowed the defendant to amend his answer and put it in issue, yet it could not be made the sub- ject of a bill of review, because it created no title paramount to the title of the plaintiflF, but merely a ground to induce a court of equity not to interfere. And where a settlement had been made on a marriage in pursuance of articles, and the settlement following the words of the articles had made the husband tenant for life, with remainder to the heirs male of his body, and the husband claiming as tenant in tail under the settlement had levied a fine, and devised to trustees, principally for the benefit of his son, and the trustees had obtained a decree to carry the trusts of the will into execution against the son, the son afterwards, on discoveiy of the articles, brought a bill to have the set- tlement rectified according to the articles, and a decree was made accordingly. In this case the new matter does not appear to have been evidence of matter in issue in the first cause, but created a title adverse to that on which the first decree was made.' A bill of review upon new matter discovered has been permitted even after an affirmance of the decree ' 'Roberts -6/. Kingsly, i Ves. 238. hearing an inquiry was directed as to the It this case IS accurately reported, the fact of the discovery of the articles, bill seems to have been filed without See Young v. Keighly, 16 Ves. 348. the previous leave of the court ; and on SEVERAL KINDS OF BILLS. 1 85 in parliament ; ' but it may be doubted whether a bill of review upon error in the decree itself can be brought after afifirmance in parliament' If upon a bill of review a decree has been reversed, another bill of review may be brought upon the decree of reversal.^ But when twenty years have elapsed from the time of pronouncing a decree, which has been signed and en- rolled, a bill of review cannot be brought ; * and after a demurrer to a bill of review has been allowed, a new bill of review on the same ground cannot be brought.^ It is a rule of the court, that the bringing a bill of re- view shall not prevent the execution of the decree im- peached ; and if money is directed to be paid, it ought regularly to be paid before the bill of review is filed, though it may afterwards be ordered to be refunded.^ * In a bill of this nature it is necessary to state ' the former bill, and the proceedings thereon ; the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it ; ^ and the " Barbon v. Searle, r Vem. 416 ; roll, 2 Bro. P. C. 98, Toml. ed. ; Lytton and see 16 Ves. 8g. v. Lytton, 4 Bro. C. C. 441. " I Vem. 418. ' Dunny v. Filmore, I Vern. 135. " 2 Chan. Pract. 633 ; and see Neal ° Ord. in Cha. Ed. Boa. 3 ; 2 Brown . V. Robinson, Dick. 15 ; but see i Vem. P. C. 65, Toml. ed. note. 417- '2 Prax. Aim.' Cur. Can. 520; 2 * Sherrington v. Smith, 2 Bro. P. C. Chan. Prac. 629. 62, Toml. ed. ; Smythe v. Clay, i Bro. " 4 Vin. Abr. 414, pi. 5. P. C. 453, Toml. ed. ; Edwards v. Car- * By the third and fourth of Lord Bacon's orders, " No bill of review shall be admitted, or any other new bill to change matter decreed, except the decree be first obeyed and performed." The true interpretation of these words is this — that before a party can file a bill of review or a bill of the nature of a bill of review, even by leave, he must perform so much of the decree as he is bound to perform at that time. But he may file a bill of review, or a bill of the nature of a bill of revjew at any time after leave is obtained, even before he has performed the decree, as regards those things which by the decree he was not bound to perform till a period sub- sequent to the time when such leave is obtained. (Partridge v. Usborne, 5 Russ. 195.) 1 86 FRAME AND END OF THE law, or new matter discovered, upon which he seeks to impeach it ; and if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it," and the fact of the dis- covery.^ It has been doubted whether after leave given to file the bill, that fact is traversable ; but this doubt may be questioned if the defendant to the bill of review can offer evidence that the matter alleged in the bill of review was within the knowledge of the party who might have taken the benefit of it in the original cause.^ The bill may pray siiriply that the de- cree may be reviewed, and reversed in the point com- plained of, if it has not been carried into execution.'* If it has been carried into execution, the bill may also pray the further decree of the court, to put the party complaining of the former decree into the situation in which he would have been if that decree had not been executed. If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand.^ The bill may also, if the original suit has become abated, be at the same time a bill of revivor.^ A supplemental bill may likewise be added, if any event has happened which requires it ; ' and particu- larly if any person not a party to the original suit be- ' See I Vem. 292 ; Boh. Curs. Cane, was traversable ; and not being ad- 396, 397. mitted by the defendant, ought to have ' Hanbury against Stevens, Trin. been proved by the plaintiff to entitle 1784, in Chancery. him to proceed to the hearing of the ° In the above mentioned case of cause.* Hanbury and Stevens, which was upon * 17 Ves. 177. a supplemental bill in nature of a bill ' 2 Chan. Prac. 634. of review, the court seemed to be of ° 2 Prax. Aim. Cur. Cane. 522. opinion that the fact of the discovery ' Price v. Keyte, i Vern. 135. * See I Bland Ch. Rep. 506 ; 2 Daniels' Plead. & Prac. 1584, and note, 4th Am. ed. by Perkins. SEVERAL KINDS OF BILLS. 1 87 comes interested in the subject, he must be made a party to the bill of review by way of supplement.' To render a bill of review necessary, the decree sought to be impeached must have been signed and enrolled. If, therefore, this has not been done, a de- cree may be examined and reversed upon a species of supplemental bill, in the nature of a bill of review, where any new matter has been discovered since the decree."* As a decree not signed and enrolled may be altered upon a rehearing, without the assistance of a bill of review, if there is sufficient matter to reverse ' Sands v. Thorowgood, Hardr. 104. time when it could have been intro- '■■ 2 Atk. 40, 178 ; 3 Atk. 811 ; Gart- duced into the original cause. Ord v. side V. Isherwood, Dick. 612 ; 17 Ves. Noel, 6 Madd. 127 ; and see Barring- 177 ; or, at the least, the new matter ton v. O'Brien, 2 Ball & B. 140. should have been discovered after the * A plaintiff, or a defendant against whom a decree is made, may ob- tain leave to file a supplemental bill in the nature of a bill of review, to bring forward matter discovered after such decree, although such matter is not capable of being used as evidence of anything previously put in issue, but constitutes an entirely new issue. (Partridge v. Usborne, 5 Russ. 195 ; Barnes v. Offer, 5 Russ. 225, note.) Thus, where a person who is afterwards decreed to perform a contract for the purchase of a timber estate, applies to the auctioneer for, and obtains a written state- ment of the quantity of timber by a surveyor, before he bids for the estate ; and after being decreed to perform his contract, he discovers that the quantity of timber is much less than is represented in such statement, the court will give him leave to file a supplemental bill in the nature of a bill of review, and to apply to have the original cause set down to be reheard, and to come on at the same time, although his answer to the original bill does not raise any objection as to the quantity of timber. (Partridge v. Usborne, 5 Russ. 195.) In this case the purchaser adduced evidence of the auctioneer and others to show that the auctioneer war- ranted the quantity of timber, and stated that the admeasurement exhib- ited by him to the purchaser agreed with another admeasurement by an- other eminent surveyor, although in reality the two materially differed. But the fact of the warranty was controverted by the evidence of a greater number of persons ; and neither that fact nor the other circumstance above mentioned was adverted to in the judgment of the lord chancellor, Lord Lyndhurst. 1 88 FRAME AND END OF THE it appearing upon the former proceedings,' * the inves- tigation of the decre'e must be brought on by a peti- tion of rehearing ; ^ and the office of the supplemental bill, in nature of a bill of review, is to supply the de- fect which occasioned the decree upon the former bill.3 It is necessary to obtain the leave of the court to bring a supplemental bill of this nature,-* and the same affidavit is required for this purpose as is necessary to ' The rehearing, which is thus far Brackenbury v. Brackenbury, 2 Jac. alluded to, not being sought in respect & W. 391 ; Willis v. Parkinson, 3 of any new matter, is obtained upon Swanst. 233 ; Brookfield v. Bradley, 2 certificate of counsel (18 Ves. 325), by Sim. & Stu. 64), according as the de- a petition merely, which states the case cree has or has not been signed and en- as brought before the court when the rolled, and as it 'is sought to have the decree was made (Wood v. Griffiths, I case reheard as originally brought be- Meriv. 35), and the grounds on which fore the court, or accompanied with the rehearing is prayed, (i Sch. & Lefr. new matter. See Text. 398.) And here it may not be improper "Taylor w. Sharp, 3 P. Wms. 371; to notice, that the court will not, with- 2 Ves. 598; Gore v. Purdon, i Sch. & out consent (3 Swanst. 234), vary a de- Lefr. 234; 2 Jac. & W. 393. It must cree after it has been passed and en- be remarked that where there is new tered, except as to mere clerical errors matter, a petition to rehear the orig- (Lane v. Hobbs, 12 Ves. 458 ; Weston inal cause must be presented, and be V. Haggerston, Coop. R. 134 ; Hawker brought before the court at the same V. Duncombe, 2 Madd. R. 391 ; 3 time as the supplemental bill, in the Swanst. 234 ; Tomlins v. Palk, I Russ. nature of a bill of review. Moore v. R. 475), or matters of course (7 Ves. Moore, Dick. 66 ; 17 Ves. 178. 293 ; Pickard v. Mattheson, 7 Ves. 293; ^ Standish v. Radley, 2 Atk. 177. Newhouse v. Mitford, 12 Ves. 456), ■* Order, 17 Oct. 1741, Ord. in Chan, unless upon a petition of rehearing, ed. Bea. 366 ; 2 Atk. 139, note ; 3 Atk. or upon a bill of review, or bill in 811 ; 2 Ves. 597, 598 ; Bridge v. John- the nature of a bill of review (4 Madd. son, 17 Dec. 1737. 32 ; Grey v. Dickenson, 4 Madd. 464 ; * Where in a suit for the administration of a testator's personal estate, part of which is undisposed of, the bill sets forth the will of the testator, made some years before his death, in which he is described as of a certain colony, where the effects of intestates are not distributed according to the English statute of distributions ; but the bill prays that the property un- disposed of may be distributed according to that statute ; and there is no allegation that the testator was domiciled in the colony, or that the law of England is not applicable to the distribution of his property, either in the. bill, or in the answers, or in the master's report, or in the evidence, or at the hearing ; and the property is ordered to be distributed according to the statute ; but afterwards a petition for a rehearing is presented, in which those facts are alleged as a ground for a rehearing ; such petition will be dismissed. (Nevinson v. Stables, 4 Russ. 210.) SEVERAL KINDS OF BILLS. l8g obtain leave to bring a bill of review on discovery of new matter.' * The bill in its frame nearly resembles ' As to the general principles adopt- 127; Bjngham v. Dawson, r Jac. R. ed by the court in relation to bills of 243. this kind, see Ord v. Noel, 6 Madd. * Where a decree is made against executors, not charging them with what they might have received but for their willful default, but afterwards a bill is filed which seeks so to charge them, it is a supplemental bill in the nature of a bill of review, aijd must not be filed without the leave of the court. (Hodson ^'. Ball, n Sim. 456 ; i Phil. 177.) And where a vendor contracts to sell leasehold premises for the re- mainder of a term granted by a certain lessor, and the specific perform- ance of the contract is decreed, the purchaser may not, without the leave of the court, file a supplemental bill, stating the fact that the premises called by the name by which they are designated in the contract partly consist of premises comprised in a lease granted by another lessor, and praying a declaration that the premises comprised in both leases are com- prised in the contract, and that the contract may be specifically performed accordingly. For where a supplemental bill is brought to supply a defect in the pleadings and decree in the original cause, and the decree upon it can only be obtained on a rehearing of the decree in the original cause,, such bill is a supplemental bill in the nature of a bill of review, which ought not to be filed without the leave of the court. (Davis v. Black, 6 Beav. 393.) Where a supplemental bill seeks a species of relief which may be incon- sistent with the relief afforded by the decree in the original suit, though it be only in one respect, and that in regard to the transactions of a few days,. the bill is irregular, if filed without leave of the court ; and the defendants are not precluded from insisting on the irregularity, by having answered the bill ; because, although the defendants should waive the objection arising from the want of leave to file the bill, yet the court itself would be concerned to prevent inconsistent decrees from being made. Such an irregularity may, however, be corrected by a stay of the proceedings, with- out prejudice to the plaintiff^'s right to file a new bill, or to apply for leave of the court to file a bill of review. This point arosq in a case where the plaintiffs would have been entitled, in the origjinal suit, to interest on the amount due to the estate of a de- ceased partner whom they represented ; but by a supplemental bill they sought for a declaration that they were entitled, at their option, either to participate in the profits made by the defendant, the surviving partner, after the death of the deceased partner, or to be allowed interest upon the balance due to the deceased partner's estate. (Toulmin v, Copland, 4 Hare, 41.) IQO FRAME AND END OF THE a bill of review, except that instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard with respect to the new matter made the subject of the supplemental bill, at the same time that it is reheard upon the original bill, and that the plaintiff may have such relief as the nature of the case made by the supplemental bill requires.^ 3. If a decree is made against a person who had no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest,'' relief may be obtained against error in the decree by a bill in the nature of a bill of review.3 Thus, if a decree is made against a tenant for life only, a remainder-man in tail or in fee cannot defeat the proceedings against the tenant for life but by a bill showing the error in the decree, the incompetency in the tenant for life to sustain the suit, arid the accruer of his own interest, and thereupon praying that the proceedings in the original cause may be reviewed, and for that purpose that the other party may appear to and answer this new bill, and the rights of the parties may be properly ascertained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court/ 4. If a decree has been obtained by fraud, it may be impeached by original bills without the leave of ' See 17 Ves. 177, 178. > 1 p. Wms. 736 ; Loyd v. Mansell, Brown v. Vermuden, i Cas. in 2 P. Wms. 73 ; 3 P. Wms. Ill ; Wi- Chan. 272. chaise v. Short, 3 Bro. P. C. 558, Toml. K^V-"^ ■ ^'^^- ^^- ; and see Kennedy v. Daly, i Sch. Osborne v. Usher, 6 Bro. P. C. 20, & Lefr. 355 ; and Giffard v. Hort, i ■^°™1- ^°- Sch. & Lefr. 386. In 3 P. Wms. Ill, SEVERAL KINDS OF BILLS. I9I the court;' the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the court will restore the parties to their for- mer situation, whatever their rights may be.^ Besides cases of direct fraud in obtaining a decree, it seems to have been considered that where a decree has been made against a trustee, the cestui que irtisi not being before the court, and the trust not discovered, or against a person who has made some conveyance or incumbrance not discovered, or where a decree has been made in favor of or against an heir, when the an- cestor has in fact disposed by will of the subject-matter of the suit, the concealment of the trust, or subsequent conveyance, or incumbrance, or will, in these several cases, ought to be treated as a fraud.^ It has been also said that where an improper decree has been made against an infant, without actual fraud, it ought to be impeached by original bill.'* When a decree has been made by consent, and the consent has been fraud- ulently obtained, the party grieved can only be re- lieved by original bill.' A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached. The it is said that a decree in such case Martin, I Jac. & W. 292. And it may may be set aside on petition ; but this be remarked, that where the enrollment was probably meant to extend only to of the decree by the one party is a fraud the case of a decree not signed and en- or surprise upon the other, it will be rolled, and where the fact of fraud vacated. Stevens v. Guppy, i Turn, could not be controverted. See Mus- R. 178. sel V. Morgan, 3 Bro. C. C. 74 ; 2 Sch. ' See Style v. Martin, 1 Gas. in & Lefr. 574*. Ghan. 150 ; Earl of Garlisle v. Goble, 3 '3 Atk. 811; I Ves. 120; Gas. Chan. Rep. 94. temp. Talbot, 201. ' I P. Wms. 737 ; 2 Ves. 232. '' Bime v. Hartpole, 5 Bro. P. G. ' Ambl. 229. 197, Toml. ed. ; and see Powell v. 192 "'frame and end of the prayer must necessarily be varied according to the na- ture of the fraud used, and the extent of its operation in obtaining an improper decision of the court. 5. The operation of a decree signed- and enrolled has been suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus, during the troubles after the death of Charles the First, upon a decree for a foreclosure in case of non-payment of principal, in- terest and costs, due on a mortgage, the mortgagor at the time of payment being forced to leave the king- dom to avoid the consequences of his engagements with the royal party, and having requested the mort- gagee to sell the estate to the best advantage and pay himself, which the mortgagee appeared to have ac- quiesced in ; the court, upon a new bill, enlarged the time for performance of the decree, upon the ground of the inevitable necessity which prevented the mort- gagor from complying with the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree.' 6. Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of the court.' This happens, generally, in cases where the parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of 'Cocker v. Eevis, i Cas. in Chan, haps induced the court/ to go far in ex- 61. See also Venables v. Foyle, i Cas. tending relief; • but there were many in Chan. 3 ; and Whorewood v. Whore- cases of extreme hardship in which it wood, I Cas. in Chan. 250 ; Wakelin v. was deemed impossible, consistently Walthal, 2 Cas. in Chan. 8. The em- with established principles, to give re- barrassments occasioned by the civil lief; and all cases determined soon war in the reign of Charles I, and the after the restoration, upon circum- state of affairs after his death, before stances connected with the prior dis- the restoration of Charles II, occasioned turbed state of the country, ought to many extraordinary applications to the be considered with much caution. Court of Chancery for relief, and per- ' 2 Chan. Rep. 128; 2 Vem. 409. SEVERAL KINDS OF BILLS. 1 93 subsequent events, that it is necessary to have the de- cree of the court to settle and ascertain them. Some- times such a bill is exhibited by a person who was not a party, nor claims under any party to the original de- cree, but claims in a similar interest, or is unable to obtain the determination of his own rights till the de- cree is carried into execution.' Or it may be brought by or against a person claiming as assignee of a party to the decree.^ The court in these cases in general only enforces, and does not vary, the decree ; but on circumstances it has sometimes considered the direc- tions, and varied them in case of a mistake ; ^ and it has even on circumstances refused to enforce the de- cree,'* though in other cases the court, and the House of Lords, upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution.^ Such a bill may also be brought to carry into execution the judgment of an inferior court of equity* if the jurisdiction of that court is not equal to the purpose ; as in the case of a decree in Wales, which the defendant avoided by flying ■ into England ; ^ but in this case the court ' See peculiar case of Rylands v. court refused to carry it into execution Latouche, 2 Bligh P. C. 566. upon a bill for that purpose, and made ' Organ v. Gardiner, i Cas. in Chan, a decree according to the rights of the 231; Lord Carteret v. Paschal, 3 P. parties. See Lechmere v. Brasier, z Wms. 197; s. c. on appeal, 2 Bro. P. Jac. & W. 287. But in Shephard v^ C. 10, Toml. ed. ; Binks v. Binks, rep. Titley, 2 Atk. 348, on a bill to foreclose 2 Bligh P. C. 593, note. a mortgage, after a bill to redeem, on * See, for example, Hamilton v. which a decree had been made, the bill Houghton, 2 Bligh P. C. 164; and see of foreclosure insisting on an incum- Sel. Cas. in Chan. 13. brance not noticed in the former cause, *Att. Gen. v. Day, i Ves. 218; I the latter was op hearing ordered to, Ves. 245 ; Johnson v. Northey, Prec. in stand over, that the question might be Chan. 134; s. C. 2 Vem. 407. In the brought on by rehearing of the former last case the lord keeper (1700) seemed cause, or by bill of review, to think that a bill by creditors to carry ' 2 Ves. 232 ; Smythe v. Clay, I Bro. into execution a decree in favor of their P. C. 453, Toml. ed. ; see also MinshuU debtor had opened that decree. In the v. Lord Mohun, 2 Vem. 672, and s. C. case of Sir John Worden ii. Gerard, in on appeal, 6 Bro. P. C. 32, Toml. ed. Ch., 1718, the interests of an infant ° i Roll. Abr. 373. party being affected by the decree, the ' Morgan v. , i. Atk. 4o8>. 13 194 FRAME AND END OF THE thought itself entitled to examine the justice of the de- cision, though affirmed in the House of Lords.' A bill for this purpose is, generally, partly an orig- inal bill, and partly a bill in the nature of an original bill, though not strictly original ; '^ and sometimes it is likewise a bill of revivor, or a supplemental bill, or both. The frame of the bill is varied accordingly. 7. It has been already mentioned, ^ that when the interest of a party dying is transmitted to another in such a manner that the transmission may be litigated in this court, as in the case of a devise, the suit cannot be revived by or against the person to whom the in- terest is so transmitted ; but that such person, if he succeeds to the interest of a plaintiff, is entitled to the benefit of the former suit ; and if he succeeds to the interest of a defendant, the plaintiff" is entitled to the benefit of the former suit against him ; and that this benefit is to be obtained by an original bill in nature of a bill of revivor. A bill for this purpose must state the original bill, the proceedings upon it, the abate- ment, and the manner in which the interest of .the party dead has been transmitted ; and it must charge the validity of the transmission, and state the rights which have accrued by it. The bill is said to be orig- inal merely for want of that privity of title between the party to the former and the party to the latter bill, though claiming the same interest, as would have per- mitted the continuance of the suit by a bill of revivor. Therefore, whgn the validity of the alleged transmis- sion of interest is established, the party to the new bill The case referred to of a decree in decree in a former suit was, in effect, Wales seems to have been a case of extended upon an original bill. I Sim. Halford v. Morgan. & Stu. 206. ' See Douglas, 6. ' See above, p. 169. In the case of Pott v. Gallini, a SEVERAL KINDS OF BILLS. 1 95 shall be equally bound by or have advantage of the proceedings on the original bill, as if there had been such a privity between him and the party to the orig- inal bill claiming the same interest ; ' and the suit is considered as pending from the filing of the original bill, so as to save the statute of limitations, to have the advantage of compelling the defendant to answer be- fore an answer can be compelled to a cross-bill, and every other advantage which would have attended the institution of the suit by the original bill, if it could have been continued by bill of revivor merely." 8. It has been also mentioned, ^ that if the interest of a plaintiff or defendant, suing or defending in his own right, wholly determines, and the same property becomes vested in another person not claiming under him, the suit cannot be continued by a bill of revivor, and its defects cannot be supplied by a supplemental bill ; but that by an original bill in the nature of a sup- plemental bill the benefit of the former proceedings may be obtained. + A bill for this purpose must state the original bill, the proceedings upon it, the event which has determined the interest of the party by or against whom the former bill was exhibited, and the manner in which the property has vested in the person become entitled. It must then show the ground upon which the court ought to grant the benefit of the former suit to or against the person so become enti- tled ; and pray the decree of the court adapted to the case of the plaintiff in the new bill.' This bill, though partaking of the nature of a supplemental bill, is not ' Clare v. Wordell, 3 Vem. 548 ; I ' ChUd v. Frederick, I P. Wms. Eq. Gas. Abr. 83; Minshull v. Lord 266. Mohun, 2 Vem. 672 ; Mordaunt v. Min- ' See above, p. i6g. shuU, 5 Bro. P. C. 32, Toml. ed. ; John- * See Houlditch v. Marquis of Don- son V. Northey, Prec. in Chan. 134 ; S. egall, i Sim. & Stu. 491. C. 2 Vem. 407; I Sim. & Stu. 495. " 6 Bro. P. C. 24, Toml. ed. 1^6 FRAME AND END OF THE an addition to the original bill, but another original bill, which in its consequences may draw to itself the advantage of the proceedings of the former bill' * IV. Informations Mn every respect follow the na- ture of bills, tfxcept in their style. When they concern only the rights of the crown, or of those whose rights the crown takes under its particular protection, they are exhibited in the name of the king's attohiey of solicitor general as the informant ; and, as before ob- served, in the latter case always, and in the former sometimes, a relator is named, who in reality sustains and directs the suit. It may happen that this person has an interest in the matter in dispute, and sustains the character of plaintiff as well as of relator ; and in this case the pleading is styled an information and bill. An information concerning the rights of the queen is exhibited also in the name of her attorney general. The proceedings upon an information can only abate ' See 9 Ves. 55, above, pp. 169, 170. ' See above, pp. 117, 118. * Where a defendant dies, after putting in his answer, and devising his estate, which the bill seeks to affect, to persons who are not parties to the bill, the plaintiflF may, in another bill against such defendant, his devisees and executors, and a surviving party to the first bill, state the allegations contained in the first bill, and may introduce various passages of the an- swer, by way of pretense or otherwise, and meet such passages by charges, without rendering the second bill impertinent. For, as to the repetition of the statements contained in the first bill, that is necessary in order to ena- ble the fresh parties to understand the nature of the case made by the first bill, of the contents of which it must be assumed that they are ignorant. And as to the insertion of passages from the answer and charges to meet them, the plaintiff is entitled to the same advantage against the devisees and executors as if they had been parties to the original bill, in which case he might have a'mended the original bill by stating the defendant's answer by way of pretense, and inserting charges to meet it. The second bill above mentioned may be termed an original bill in the nature of a supple- mental bill, it being original as to the fresh parties, but supplemental as regards the former bill, (Woods v. Woods, 10 Sim. 193.) SEVERAL KINDS OF BILLS. I97 by the death, or determination of interest, of the de- fendant. If there are several relators, the death of any of them, while there survives one, will not in any de- gree affect the suit ; but if all the relators die, or if there is but one, and that relator dies, the court will not permit any further proceeding till an order has been obtained for liberty to insert the name of a new relator, and such name is inserted accordingly, ' other- wise there would be no person, liable to pay the costs ° of the suit in case the information should be deemed improper, or for any other reason should be dismissed. The difference in form between an information and a bill consists merely in offering the subject-matter as the information of the officer in whose name it is exhibited, at the relation of the person who suggests the suit in those cases where a relator is named, and in stating the acts of the defendant to be injurious to the crown, or to those whose rights the crown thus endeavors to protect. When the pleading is at the same time an information and bill it is a compound of the forms used for each when separately exhibited.^ ' Att. Gen. v. Powell, Dick. 355. discretion. 2 Ves. 89; 2 Ves. 328; And the application must be made by Att. Gen. v. Foundling Hospital, 2 Ves. the attorney general, or with his con- jr. 42 ; s. c. 4 Bro. C. C. 165 ; Att. Gen. sent. Att. Gen. v. Plumptree, 5 Madd. v. Dixie, 13 Ves. 519 ; Att. Gen. v. 452; Wellbeloved v. Jones, i Sim. & Earl of Clarendon, 17 Ves. 491 ; 3 Ves. Stu. 40; and see Anon. Sel. Gas. in & Bea. 154; Att. Gen. v. Brown, i Chan. 69; Att. Gen. v. Fellows, i Jac. Swanst. 265 ; Att. Gen. v. Mayor of & W. 254. Bristol, 3 Madd. 319 ; s. c. 2 Jac. & W. ' I Ves. 72 ; Att. Gen. v. Middle- 294 ; Foley v. Wontner, 2 Jac. & W. ton, 2 Ves. 327. 245 ; Att. Gen. v. Buller, i Jac. R.407; ' It may here be observed, with re- Att. Gen. v. Heelis, 2 Sim. & Stu. 67; spect to informations on behalf of pub- Att. Gen. v. Mayor of Stamford, re- lic charities, that the practice of this ported 2 Swanst. 591 ; Att. Gen. v. court has been to control the governors Vivian, i Russ. R. 226. It has already or other directors of themp in those been observed in the text, p. 115, that cases only in which they have had the this court is empowered by the 52 Geo. disposition of its revenues ; and that III, c. loi, to interfere in such cases as this limited authority has been exerted relate only to the plain breach of trusts under its general jurisdiction in rela- created for charitable purposes, on tion to trusts ; although it has gone be- what is technically termed a petition in yond the ordinary cases on that sub- a summary way. As to which see also ject by regulating the exercise of their Ex parte Berkhampstead School, 2 Ves. 198 FRAME AND END OF BILLS, &C. In this investigation of the frame and end of the several kinds of bills, the matters requisite to the -sufficiency of each kind have been generally consid- ered ; but they will in some degree be more particu- larly noticed in • the following chapter, in treating of the defense which may be made to the several kinds of bills, and consequently of the advantages which may be taken of their insufficiency both in form and substance. & Bea. 134 ; Ex parte Rees, 3 Ves. & 470 ; in the matter of St. Wenn's Char- Bea. 10 ; Ex forte Brown, Coop. R. ity, 2 Sim. & Stu. 66; and see 2 Swanst. 295 ; Ex parte Skinner, 2 Meriv. 453 ; 518, 525. And it may here be added, s. c. I Wils. R. 14 ; Ex parte Green- ' that it is also authorized to decide in house, I Swanst. 60 ; s. c. I Wils. R. certain other cases relating to the prop- 18; In re Slewings Charity, 3 Meriv. erty of charities, upon a petition, by the 707 ; Att. Gen. v. Green, I Jac. & W. 59 Geo. Ill, c, 91. 303 ; /» re Bedford Charity, 2 Swanst. CHAPTER II. OF THE DEFENSE TO BILLS. Section I. By whom a suit may be defended. In treating of the defense which may be made to a bill, it will be proper to consider, I. By whom a suit may be defended. II. The nature of the various modes of defense ; under which head will be consid- ered, I, demurrers; 2, pleas ; 3, answers and disclaim- ers, or any two or more of them jointly, each referring to a separate and distinct part of the bill. When the interest of the crown, or of thbse whose rights are under its particular protection, is concerned in the defense of a suit, the king's attorney general, or during the vacancy of that office the solicitor general, becomes a necessary party to support that interest;' but it has been already observed, that a suit in the court of chancery is not the proper remedy where the crown is in possession, or any title vested in it is sought to be divested, or affected,'' or its rights are the immediate and sole object of the suit. The queen's attorney or solicitor seems to be the party necessary to defend her rights.^ ' Balch V. Wastall, I P. Wms. 445 ; dowager has been sued as a common 2 Sch. & Left. 617. person. 9 Hen. VI, 53. Writ of an- "See above, p. 125. nuity against Joan, Queen dowager of ' See 2 Roll. Abr. 213. But a queen Henry IV. (199) 20O BY WHOM A SUIT All Other bodies politic and corporate, and persons who do not partake of the prerogative of the crown, and have no claim to its particular protection, defend a suit either by themselves, or under the protection of or jointly with others. Bodies politic and corporate, and persons of full age, n,ot being married women, or idiots or lunatics, defend a suit by themselves ; but in- fants, idiots and lunatics, are incapable by themselves of defending as they are of instituting a suit ; and married women can only defend jointly with their hus- bands, except under particular circumstances, unless a special order is obtained to authorize or compel their defending separately. Infants institute a suit by their next friend ; but to defend a suit the court appoints them guardians, who are usually their nearest relations, not concerned in point of interest in the matter in question.^ If a per- son is by age or infirmities reduced to a second infancy, he may also defend by guardian.'' Idiots and lunatics defend by their committees,^ who are by order of the court appointed guardians for that purpose as a matter of course ; * and if it happens that an idiot or a lunati'c has no committee,^ or the committee has an interest opposite to that of the per- son whose property is intrusted to his care,^ an order may be obtained for appointing another person as guardian for the purpose of defending a suit.^ So if 'Offley w. Jenney, 3 Chan. Rep, 51. Grace, 14 Ves. 172 ; and see Att. Gen. On the subject of appointing guardians v. Waddington, i Madd. 321. ad litem for infant defendants, see = I Vern. 106 ; Lyori v. Mercer, I Brassmgton v. Brassington, 3 Anstr. Sim. & Stu, 356. 369; Eyles v. Le Gros, 9 Ves. 12; * Westcomb v. Westcomb, Dick. Jongsma v. Pfiel, 9Ves. 357 ; Williams 233. V. Wynn, 10 Ves. 159 ; Hill v. Smith, I ' Hewlett v. Wilbraham, 5 Madd. Madd. 290 ; Lushington v. Sewell, 423. 6 Madd. 28; J?a? z/iafe Tappen w. Nor-' ° Snell w. Hyat, Dick. 287; see man, 11 Ves. 563. Lloyd v. , Dick. 460. Leving V. Caverly, Free, in Chan. ' Hewlett v. Wilbraham, 5 Madd. 229 ; I Eq. Cas. Abr. 281 ; Wilson v. 423. MAY BE DEFENDED. 20I a person who is in the condition of an idiot or a lu- natic, though not found such by inquisition, is made a defendant, the court upon information of his inca- pacity will direct a guardian to be appointed.' A married woman, though she cannot by herself institute a suit, and if her husband is not joined with her must seek the protection of some other person as her next friend, may yet, by leave of the court, defend a suit separately from her husband without the protec- tion of another." Thus, if she claims in opposition to any claims of her husband, or if she lives separate from him, 3 or disapproves the defense he wishes her to make,'' she may obtain an order for liberty to defend the suit separately, 5 and her answer may be read against her.^ If a husband is plaintiff in a suit, and makes his wife a defendant, he treats her as a feme sole, and she may answer separately without an order of the court for the purpose. ^ The wife of an exile, or of one who has abjured the realm, may defend, as she may sue alone ;^ and if a husband is out of the juris- diction of the court,' though not an exile, or if he can- not be found, '° his wife may be compelled to answer separately. If a married woman obstinately refuses to join in defense with her husband, she may also be com- ' Anon. 3 P. Wms. in, note; see taken by her merely for want of the Wilson V. Grace, 14 Ves. 172. order for leave to file it separately ; and ' 4 Vin. Abr. 147, Baron and Feme, I. she will be bound by an offer contained 4. 20 ; I Sim. & Stu. 163. in it. See Duke of Chandos v. Talbot, ' Portman v. Popham, Tothill, 75 ; 2 P. Wms. 371 ; s. c. Sel. Cas. in Chan. Jackson v. Haworth, i Sim. & Stu. 161. 24. * Ex parte Halsam, 2 Atk. 50 ; 2 Eq. ° Travers v. Buckley, i Ves. 383. Cas. Abr. 66. ' Ex parte Strangeways, 3 Atk. 478 ; ° Powell V. Prentice, Cas. t. Hardw. Brooks v. Brooks, Prec. in Chan. 24 ; 258 ; Wyboum v. Blunt, Dick. 155. A Ainslie v. Medlicott, 13 Ves. 266. separate answer put in by a married 'Seepage iig; ig Co. Litt. 132, b. woman, without an order for the pur- 133, a. ; and 2 Vern. 105. pose, may be suppressed as irregularly " Carleton v. M'Enzie, 10 Ves. 442; filed. But if filed with her approbation, Bunyan v. Mortimer, 6 Madd. 278. and accepted by the plaintiff, it will not '" Bell v. Hyde, Prec. in Chan. 328. be deemed irregular upon objection 202 DEMURRERS, pelled to make a separate defense ; and for that pur* pose an order may be obtained that process may issue against her separately. ' Except under such circum- stances a married woman can only defend jointly with her husband.'' Section II. — Part I. Of the nature of the various modes of defense to a bill; and first of deinurrers. It has been mentioned ^ that the person against whom a bill is exhibited, being called upon to answer the complaint made against him, may defend himself, I. By demurrer, by which he demands the judgment of the court whether he shall be compelled to answer the bill or nof* 2. By plea, whereby he shows some cause why the suit should be dismissed, delayed, or barred. ^ 3. By answer, which, controverting the case stated by the plaintiff, confesses and avoids, or traverses and de- nies, the several parts of the bill;* or, admitting the case made by the bill, submits to the judgment of the court upon it, or upon a new case made by the answer, or both : or by disclaimer, which at once terminates the suit, the defendant disclaiming all right in the mat- ter sought by the bill. ^ And all or any of these modes ' Pain V. , I Cas. in Chan. 296 ; v. Haworth, I Sim. & Stu. 161 ; Garey 1 Sim. & Stu. 163. V. Wliittingham, I Sim. & Stu. 163- " As to tiie answer of a married Bushell v. Bushell, I Sim. & Stu. 164. woman, see further, Plomer v. Plomer, ' Pages no, ill, 112, 113. I Ch. Rep. 68 ; Wrottesley v. Bendish, * Pract. Reg. 162, Wy. ed. 3 P. Wms. 235 ; Penne v. Peacoclc, Cas. ' Ibid. 324, Wy. ed. t. Talb. 41; Murriet ». Lyon, Bunbury, ° 2 West. Symb. Chan. 194; Pract. 175; Ex parte Halsam, 2 Atk. 50; Reg. 11, Wy. ed. Traverse v. Buckley, 1 Wils. R. 264; ' Pract. Reg. 175, Wy. ed. Barry v. Cane, 3 Madd. 472 ; Jackson DEMURRERS. 203 of defense may be joined, provided each relates to a separate and distinct part of the bill. It has also been observed that the grounds on which defense may be made to a bill, either by answer, or by disputing the right of the plaintiff to compel the answer which the bill requires, are various both in their nature and in their effect. Some of them, though a complete defense as to any relief, are not so as to a discovery ; and when there is no ground for disputing the right of the plaintiff to the relief prayed, or if the bill seeks only a discovery, yet if there is any impro- priety in requiring the discovery, or if it can answer no purpose for which a court of equity ought to compel it, the impropriety of compelling the discovery, or the immateriality of the discovery if made, may be used as a ground to protect the defendant from making it. Different grounds of defense therefore may be applica- ble to different parts of a bill ; and every species of bill requiring its own peculiar ground to support it, and its own peculiar form to give it effect, a deficiency in either of these points is a ground of defense to it. Whenever any ground of defense is apparent on the bill itself,* either from matter contained in it, or * Allowing that a demurrer, founded on the ship registry acts, would hold to a bill respecting a ship, if the bill alleged that the ship was British built, an allegation that the ship was built by a builder described to be of a particular place in this country is not a sufficient allegation to ground upon it such a demurrer ; because the ship may have been built by that builder in some other part of the world. (Small v. Small, 14 Sim. 1 19.) But where two inconsistent statements are made in a bill, a defendant is entitled, upon demurrer, to adopt that which is most against the plaint- iff's interest. So that where the plaintiff would have no right to institute the suit as issue in tail, and the bill sets forth the limitations of a settle- ment in such a manner as to show that the plaintiff's father is tenant for life, with remainder to the plaintiff as tenant in tail, but subsequent parts of the bill speak of the father as tenant in tail, and of the plaintiff as heir 204 DEMURRERS. from defect in its frame, or in the case made by it, the proper mode of defense is by demurrer. A de- murrer is an allegation of a defendant, which, admit- ting the matters of fact ■ alleged by the bill to be true,* shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer;' or that for some reason apparent on the face of a bill,^ or because of the omission of some matter which ought to be con- tained therein, or for want of some circumstance which ought to be attendarit thereon, the defendant ought not to be compelled to answer. It therefore demands the judgment of the court whether the defendant shall be compelled to make answer to the plaintiff's bill, or to some certain part thereof.* The causes of demurrer are merely upon matter in the bill,' or upon the omis- sion * of matter which ought to be therein or attendant thereon ; and not upon any foreign matter alleged by the defendant.^ The principal ends of a demurrer are, ' A demurrer confesses matter of ° Ord. in Chan. 26, Ed. Bea. fact only, and not matter of law. Lord * 3 P. Wms. 80 ; Prac. Reg. 162, Wy. Raym. 18 ; 1 Ves. jr. 78, 289; 2 Ves. & ed. ; see 2 Sch. & Lefr. 206. B. 95 ; 3 Meriv. 503 ; Cuthbert v. Creasy, ' 2 Ves. 247. 6 Madd. 189. " 3 P. Wms. 395. " Prac. Reg. 162, Wy. ed. ' Ord. in Chan. 26, Ed. Bea. in tail ; the defendant is entitled, on demurrer, to treat the bill as stating that the plaintiff is issue in tail, and not as tenant in tail. (Vernon v. Vernon, 2 My. & Cr. 145.) As to an inference on demurrer, see same case. And when a plaintiff founds his case upon the allegation that a foreign country is recognized by the English government as an independent state, and that allegation is false, the judge is bound to know judicially that it is false, and to allow a demurrer depending on its falsity. For it is the duty of the judge in every court to take notice of public matters which affect the government of the country ; and the courts of the sove- reign should act in unison with the government of the sovereign. (Taylor V. Barclay, 2 Sim. 213.) * See note * to p. 395, infra. DEMURRERS. 205 to avoid a discovery which may be prejudicial to the defendant, to cover a defective title, or to prevent unnecessary expense. If no one of these ends is obtained, there is little use in a demurrer. For, in general, if a demurrer would hold to a bill, the court, though the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases in which the court has given relief upon hearing, though a demurrer to the relief would probably have been allowed.' But the cases are rare. Bills have been already considered under three general heads: i, original bills; 2, bills not original; and, 3, bills in the nature of original bills. The several kinds of bills Iranged under the second and third heads being consequences of bills treated of under the first head, the defense which may be made to original bills in its variety comprehends the several defenses which may be made to every other kind of bill, except such as arise from the peculiar form and object of each kind. In treating, therefore, of demur- rers it will be convenient first to consider demurrers to original bills, under which head the nature of de- murrers in general, and the principal grounds of demurrer to every kind of bill, will be necessarily noticed ; the distinct causes of demurrer peculiar to the several other kinds of bills will then be mentioned ; and, in the third place, will be considered the frame of demurrers in general, and the manner in which their validity is determined. In treating of original bills, they have been divided ' 3 p. Wms. 150 ; 12 Mod. 171. It were proved or confessed, a decree seems that the Court, upon the argument - would then be made. See 2 Ves. jr. of a demurrer, decides upon the facts as 97 ; Brook v. Hewitt, 3 Ves. 25316 Ves. stated in the bill, whether if the cause 686 ; 7 Ves. 245 ; 2 Sch. & Lefr. 638 ; 6 were to proceed to a hearing, and they Madd, 95. 2o6 DEMURRERS. into bills praying relief, and bills not praying relief; and it has been mentioned that both require a dis- covery from the party against whom the bill is exhib- ited. Demurrers to original bills may, therefore, be considered under two heads ; first, demurrers to relief, which frequently include a demurrer to discovery ; and, secondly, demurrers to discoveiy only, which sometimes consequentially affect the relief. Under these heads will necessarily be considered the causes of demurrer, as well to bills which seek a discovery only as to such as likewise pray relief From what has been observed in a preceding page, it may be collected that the principal grounds of ob- jection to the relief sought by an original bill, which can appear on the bill itself, and may therefore be taken advantage of by demurrer, are these : '^ I. That the subject of the suit is not within the jurisdiction of ■ a court of equity ; 1 1. That some other court of equity has the proper jurisdiction ; III. That the plaintiff is not entitled to sue by reason of some personal dis- ability ; IV. That he has no interest in the subject, or no title to institute a suit concerning it ; V. That he has no right to call on the defendant concerning the subject of the suit ; VI. That the defendant has not that interest in the subject which can make him liable to the claims of the plaintiff; VII. That for some reason founded on the substance of the case, the plaintiff is ■ not entitled to the relief he prays. To these may be added, VIII. The deficiency of the bill to answer the purpose of complete justice; and IX. The impro- priety of confounding distinct subjects in the same ' It has been said that a defendant to the court that the bill may be dis- may, demur to a bill if it appears upon missed. Anon. Mosely, 47, 356 ; Anon, the face of it to be brought for a very Bunbury, 17; Owens v. Smith, Comyn, small sum; but it is most usual to apply 715 ; Brace v. Taylor, 2 Atk. 253. DEMURRERS. 207 bill, or of unnecessarily multiplying suits. When the discovery sought by a bill can only be assistant to the relief prayed, a ground of demurrer to the relief will also extend to the discovery ; but if the discovery may have a further purpose, the plaintiff may be entitled to it, though he has no title to relief. In considering, therefore, these several grounds of demurrer to relief, such as may, and such as cannot, extend to discovery likewise, will be distinguished. I. The general objects of the jurisdiction of a court of equity * have been noticed in a former page ; ' and from thence it may be collected, that the juris- diction, when it assumes a power of decision, is to be exercised, i , where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose ; 2, where the courts of ordinary juris- diction are made instruments of injustice ; 3, where the principles of law by which the ordinary courts are guided give no right, but upon the principles of uni- versal justice the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent ; and it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a juris- ■ Pages 102, 103. * The reader is referred generally to the Treatises on the subject of Equity Jurisprudence or Jurisdiction, as to this part of Lord Redesdale's Treatise, extending from this page to page 243 , inasmuch as it belongs to that subject rather than to the subject of Equity Pleadings, and em- braces a very wide field. Adams' Equity is especially referred to ; so is Story's Equity Juris- prudence and Spence's Equitable Jurisdiction. 2o8 • DEMURRERS. diction, 4, to remove impediments to the fair decisiotl of a question in other courts ; 5, to provide for th6 safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law intrusted, or by persons having immediate but partial interests; 6, to restrain the assertion of doubtful rights in a man- ner productive of irreparable damage ; 7, to prevent injury to a third person by the doubtful title of others ; and 8, to put a bound to vexatious and oppressive liti- gation, and to prevent multiplicity of suits ; and fur- ther, that courts of equity, without pronouncing any judgment which may affect the rights of parties, ex- tend their jurisdiction, 9, to compel a discovery, or ob- tain evidence which may assist the decision of other courts ; and 10, to preserve testimony when in danger of being lost before the matter to which it relates can be made the subject of judicial investigation. I. Cases frequently occur in which the principles' by which the ordinary courts are guided in their ad- ministration of justice give a right, but from accident or fraud, or defect in their mode of proceeding, those courts can afford no remedy, or cannot give the most complete remedy ; and sometimes the effect of a ' The existence of courts of equity ings of the ordinary courts have not ad- in England, distinct from the courts of mitted of the application. And from ordinary jurisdiction, has suggested an time to time the courts of common law idea that the ordinary courts, and es- have also been induced to admit, as pecially the courts of common law, have grounds of their decision, rules estah- not in their administration of justice lished in the courts of equity, which any recourse to such principles of de- they had before rejected as clashing cision as are merely rules of equity, with established rules of the comftion But in fact those principles have been law ; and for some purposes they have as constantly applied by the ordinary also noticed principles of decision es- courts as by the courts of equity,* ex- tablished in the courts of equity, which cept where they have clashed -with es- the forms of proceeding in the courts tablished rules of the common law, and of common law have not enabled tliem where the forms observed in the proceed- directly to enforce. * See Smith's " Manual of Equity Jurisprudence," Introd. sec. I. DEMURRERS. 2O9 remedy attempted to be given by a court of ordinary jurisdiction is defeated by fraud or accident. In such cases courts of equity will interpose to give those rem- edies which the ordinary courts would give if their powers were equal to the purpose, or their mode of administering justice could reach the evil ; and also to enforce remedies attempted to be given by those courts when their effect is so defeated. Thus where an instrument on which a title is founded, as a bond, is lost, a court of equity will inter- fere to supply the defect occasioned by the accident, and will give the same remedy which a court of com- mon law would have given if the accident had not happened.' If an instrument has been destroyed, or is fi-audulently suppressed or withheld from the party claiming under it, courts of equity will also give relief;'' as they will generally lend their aid whenever by fraud or accident a person is prevented from effect- ually asserting in the courts of ordinary jurisdiction rights founded on principles acknowledged by those courts.* In some instances courts of law have acted on the supposed destruction or suppression of an instru- ment, where formerly those courts conceived they could not act for want of the instrument, especially ia in the particular mode of proceeding. Thus in the case of a supposed suppression or destructioa of a 'i Gas. in Chan. 11; i Eq. Gas. 109; Eyton !>. Eyton, 2 Vern. 380 ; San- Abr. 92 ; I Atk. 287 ; Anon. 2 Atk. 61; son v. Rumsey, 2 Vern. 561 ; Dalston Anon. 3 Atk. 17 ; I Ves. 344 ; 5 Ves. v. Goatsworth, i P., Wms. 731 ; Cow- 238 ; 7 Ves. 19 ; East India Company per v. Earl Gowper, 2 P. Wms. 720 ; V. Boddam, 9 Ves. 464 ; Seagrave v. Atkins v. Farr, i Atk. 287 ; Tucker v. Seagrave, 13 Ves. 439 ; Smith v. Bick- Phipps, 3 Atk. 359 ; I Ves. 392 ; Sal- nell, 3 Ves. & Bea. 51, note ; Stokoe v. tern v. Melhuish, Ambl. 249 ; Bowles. Robson, 3 Ves. & Bea. 51. v. Stewart, i Sch. & Lefr.209. ' See Lord Hunsdon's case, Hob. ♦See note *top. 207., 14 2IO DEMURRERS. lease for lives under a power in a settlement, the supposed lessee was permitted to obtain on parol tes- timony a verdict and judgment in ejectment, upon a feigned demise, the form of the proceeding not requir- ing the lease in question to >be in any manner stated in the pleadings, so that it could not appear upon the record under what title the recovery was had, or what specific lands were in the supposed lease, what were the lives for which it was granted, what the rent re- served, or what covenants bound either party; or whether the lease was or was not according to the powers under which it was alleged to have been made. The consequence necessarily was a suit in equity to have all those facts ascertained, and to restrain the ex- ecution of the judgment in ejectment in the meantim'e.* In restraining waste,* by persons having limited in- terests in property, the courts of equity have generally proceeded on the ground of the common-law rights of the parties, and the difficulty of obtaining immediate preservation of property from destruction or irrepar- able injury by the process of the common law ; ' but upon this subject the jurisdiction has been extended to cases in which the remedies provided in those courts could not be made to apply .° ' See Field v. Jackson, Dick. 599 ; where the title is equitable, see rgVes. Davis V. Leo, 6 Ves. 784; Smith v. 151, 155; and as to those where the in- Collyer, 8 Ves. 89 ; 9 Ves. 356 ; ig Ves. jury is not acknowledged at law, which 154. are cases of equitable waste, see Cham- " As to the instances where the title berlyne v. Dummer, I Bro. C. C. 166; is legal, and the courts of law admit S. c. Dick. 600 ; Marquis of Downshire the existence of an injury, but do not v. Sandys, 6 Ves. 107 ; Lord Tamworth afford a remedy, see 2 Freem. 54 ; Per- v. Lord Ferrers, 6 Ves. 419 ; Williams rot V. Perrot, 3 Atk. 94; 3 Atk. 210; v. M'Namara, 8 Ves. 70; Burges v. Farrant v. Lovel, 3 Atk. 723; 3 Atk. Lamb, 16 Ves. 174; Day v. Merry, 16 755> 756; Mollineux v. Powell, 3 P. Ves. 375; Marchioness of Ormonde z». Wms. 268, note; 3 Bro. C.C. 544; On- Kynersley, 5 Madd. 369; Lushington slow u. , 16 Ves. 163; Pratt v. v. Boldero, 6 Madd. 149; Coffin v. Brett, 2 Madd. R. 62 ; Brydges v. Coffin, I Jac. R. 70. Stephens, 6 Madd. 279; as to those * See note * to p. 207. DEMURRERS. 211 Where an act of parliament has expressly given a right, the courts of ordinary jurisdiction have been found incompetent to give, in all cases, a full and com- plete remedy, and the courts of equity have therefore interposed* Thus in the case of a person who had been discharged under an act for relief of insolvent debtors, by which his future effects were made liable to the demand of his creditors, but his person was pro- tected ; the court of chancery, exercising its extraor- dinary jurisdiction, enforced a judgment of a court of common law against his effects, which were so circum- stanced as not to be liable to execution at the com- mon law/ Where parties by contract have given a right, but have not provided a sufficient remedy, the courts of equity have also interfered * Thus where a rent was settled upon a woman by way of jointure, but she had no power of distress, or other remedy at law, the pay- ment, according to the intent of the conveyance, was decreed in equity.'' So where parties, meaning to cre- ate a perfect title, have used an imperfect instrument, as a feoffment without livery of seizin ; ^ a bargain and sale without enrollment ;* a surrender of copyhold not presented according to the custom of the manor ; = courts of equity have considered the imperfect instru- ment as evidence of a contract for making a perfect instrument, and have remedied the defect, even against judgment creditors^ who had gained a lien in the land ' Edgell v. Haywood, 3 Atk. 352 ; 279 ; Burgh v. Burgh, Rep. t. Finch, see I Jac. & W. 371. 28. ' Plunket V. Brereton, i Chan. Rep. * 6 Ves. 745. 5 ; and see Duke of Leeds v. Powell, " Taylor v. Wheeler, 2 Vern. 564. I Ves. 171. ° See i P. Wms. 279. ' Burgh V. Francis, cited i P. Wms. * See note * to p. 207. 212 DEMURRERS. in question, though when the consideration has been inadequate, relief has not been extended so far/ Where the legislature fias declared that an instrument wanting a particular form should be null ^and void to all intents and purposes, and it was manifestly the de- sign of the legislature that those words should operate to the fullest extent, relief has been refused. Thus a bill of sale of a ship, wanting a formality required by the register act, was not made good in equity against assignees of the vendor become bankrupt.'' Relief has also been given where a remedy at law was originally provided, but by subsequent accident could not be enforced; as where, by confusion of boundaries of lands, remedy by distress for rent was defeated.3* So if the remedy afforded by the ordi- nary courts is incomplete, a court of equity will lend its aid to give a complete remedy. * * Upon this ground a bill was admitted for recovery of an ancient silver altar claimed by the plaintiff as treasure trove within his manor ; for though he might have recovered at law the value in an action of trover, or the thing itself, if it could be found, in an action of detinue, yet as the defendant might deface it, and thereby depre- ciate the value, it was determined that the defect of the law in that particular ought to be supplied in equity' And where an estate was held by a horn, and a bill was ' Finch V. Earl of Winchelsea, i P. 200; and Duke of Leeds v. Corpora- Wms. 277, 283. .tion of New Radnor, 2 Bro. C. C. 338; " Hibbert v. Rolleston, 3 Bro. C. C. s. c. lb. 518, and the cases there cited. 571 ; 6 Ves. 745 ; Speldt v. Lechmere, * See 9 Ves. 33. 13 Ves. 588 ; Thompson v. Leake, I ' ' Duke of Somerset v. Cookson, 3 Madd. 39. P. Wms. 390 ; and see Fells v. Read, ' I Ves. 172. See North v. Earl 3 Ves. 71 ; Lowther v. Lord Lowther, and Countess of Strafford, 3 P. Wms. 13 Ves. 95. 148 ; Bouverie v. Prentice, I Bro. C. C. * See note * to p. 207. DEMURRERS. 213 brought by the owner of the estate to have the horn delivered to him, a demurrer was overruled.^ Upon the same principle,'' the jurisdiction of the court is supported in the very common case of a bill for delivery of deeds or writings, ^ * suggesting that they are in the custody or power of the defendant ; though in early times it seems to have been considered that the jurisdiction did not extend to cases where an action of detinue would lie.* In the case of contracts or agreements this prin- ciple is carried to the extent* The principles by which the courts of common law direct their de- cisions on the subject acknowledge the mutual right of the contracting parties to specific performance of the agreements they have made ; but the mode of proceeding in those courts enables them only to attempt to compel performance by giving damages for non-performance. Here therefore the courts of equity interfere to give that remedy which the ordi- nary courts would give if their mode of administering justice would reach the evil, by decreeing, according to the principles of the common law as well as of natural justice, specific performance of the agreement.' ' Pusey V. Pusey, i Vem. 273 ; and • 13 Ves. 76, 228 ; 2 Sch. & Lefr. 556 ; see Earl of Macclesfield v. Davis, 3 Ves. i Jac. & W. 370. The courts of equity & Bea. 16. decree performance of agreement in ' See 2 Atk. 306. many cases where no action would lie ° The court of chancery has long at the common law for non-perform- exercised its extraordinary jurisdiction ance ; and on this head great complaints in this case. See'g Ed. IV, 41 B. and have been made, the justice of which it ^tat. 32 Hen. VIII, c 36, s. 9 ; and see is beyond the purpose of this treatise to on this subject Brown v. Brown, Dick, consider. See I Fonbl. Treat, of Eq. 62 ; I Madd. 192 ; Crow v. Tyrrell, 3 151, n. {c), and 2 Sch. & Lefr. 347, and Madd. 179 ; Knye v. Moore, i Sim. & Williams v. Steward, 3 Meriv. 472. As Stu. 61 ; Balch v. Symes, I Turn. 87. to the propriety of extending the appli- * 9 Edw. IV, 41 B. ; see also 39 Hen. cation of the doctrine of part perform- VI, 26; Brooke Praer. 45, which seems to ance, see 3 Ves. 712, 713 ; 6 Ves. 32, 37; have been in eflfect a bill for discovery 2 Sch. & Lefr. 5. and account. * See note * to p. 207. 214 DEMURRERS. This however extends only to contracts of which a specific performance is essential to justice ; ' for if damages for non-performance are all that justice re- quires, as in the case of a contract for stock in the public funds, a court of equity will not interfere." In other cases where compelling a specific act is the only complete remedy for an injury, and the ordinary courts can attempt to give this remedy only by giving damages, the courts of equity will interfere to give the specific remedy, especially if the right has been established by the determination of the ordinary courts.3 In some cases, as in matters of account,* * partition of estates between tenants in common,^ and assign- ' See 3 Bro. C. C. 543 ; 8 Ves. 163 ; Madd. 440; Franklyn v. Tuton, 5 2 Sch. & Lefr. 347. Madd. 469 ; Dawson v. Ellis, i Jac. & ° Cud V. Rutter, I P. Wms. 570; 10 W. 524; Baxter v. ConoUy, I jfac. & Ves. 161 ; 13 Ves. 37. W. 576 ; Martin v. Mitchell, 2 Jac. & ' It is difficult to reconcile all the W. 413 ; Beaumont v. Dukes, i Jac. R. cases in which the courts of equity have 422 ; Gordon v. Smart, I Sim. & Stu. compelled the performance of agree- 66 ; Bryson v. Whitehead, I Sim. & ments, or refused to do so, with each Stu. 74; Doloret v. Rothschild, i Sim. other; and in some cases where per- & Stu. 590; Lingen v. Simpson, 1 Sim. formance has been decreed, it is difficult & Stu. 600 ; Agar v. Macklew, 2 Sim. & to reconcile the decisions with the prin- Stu. 418; Hasker v. Sutton, 2 Sim. & ciples of equal justice. The cases and Stu. 513; Lewin v. Guest, I Russ. R. their varieties are numerous, and have 325 ; Attwood v. , I Russ. R. 353.t been ably collected in : Fonbl. Treat. ' See 2 Ves. 388 ; Corporation of of Equity. Of the later cases on the Carlisle v. Wilson, 13 Ves. 276; i Sch. subject, see Morphett v. Jones, 1 Swanst. & Lefr. 309. 172; s. c. I Wils. Ch. R. 100 ; Gamrd 'See 2 Freem. 26; 2Ves. jr. 570; V. Grinling, 2 Swanst. i, 244; %.%. i Turner w. Morgan, 8 Ves. 143 ; 17 Ves. Wils. Ch. R. 460; Walker v. Barnes, 3 552; I Ves. & B. 555 ; Miller v. Warm- Madd. 247 ; Hudson v. Bartram, 3 ington, I Jac. & W. 484. * See note * to p. 267. t The Court of Chancery, in carrying agfreements in regard to title into execution, governs itself by a moral, and not a mathematical cer- tainty. For, in the nature of things, there cannot be a mathematical certainty of a good title. There are often suggestions of old entails, and often doubts what issue persons have left, whether more or fewer, and yet these were never allowed to be objections of that force as to overturn a title to an estate. (2 Atk. 20.) , DEMURRERS. 215 ment of dower,' a court of equity will entertain jurisdiction of a suit, though a remedy might perhaps be had in the courts of common law. The ground upon which the courts of equity first interfered in these cases seems to have been the difficulty of pro- ceeding to the full extent of justice in the courts of common law." Thus, though accounts may be taken before auditors in an action of account in the courts of common law, yet a court of equity by its mode of proceeding is enabled to investigate more effectually long and intricate accounts in an adverse way, and to compel payment of the balance whichever way it turns. * In the case of partition of an estate, f if the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are effected by first ascertaining the rights of the several persons inter- ested, and then issuing a commission to make the par- tition required, and upon return of the commission, ' See Curtis ■v. Curtis, 2 Bro. C. C. in some of these cases the jurisdiction 620; 2Ves. jr. 129; lyVes. 552. was first assumed to prevent multiplicity ' 2 Ves. 388 ; 13 Ves. 279. Perhaps of suits. * A bill for an account is not demurrable merely because the plaintiff does not offer to account at all, or does not offer to account for as much as he ought to account for ; for he may be made to account to the full extent of what is just, although he does not even admit himself to be an accounting party. (Clark v. Tipping, 4 Beav. 588.) If a bill is filed for an account of the rents and profits received by the grantee of an annuity, who, in consequence of its being in arrear, is in possession of the premises demised to secure the annuity, the bill must contain an offer either to redeem on the terms of the annuity deed, or to repurchase upon equitable terms to be settled by the court. (Knebell v. White, 2 Y. & C. Eq. Ex. 15.) t See note * to p. 207. 2i6 DEMURRERS. and confirmation of that return by the court, the par- tition is finally completed by mutual conveyances of the allotments made to the several parties/ But if the infancy of any of the parties, or other circumstances, prevent such mutual conveyances, the decree can only extend to make the partition, give possession, and order enjoyment accordingly until effectual convey- ances cari be made. If the defect arise from infancy, the infant must have a day to show cause against the decree after attaining twenty-one; and if no cause should be shown, or cause shown should not be allowed, the decree may then be extended to compel mutual conveyances.^ If a contingent remainder, not capable of being barred or destroyed, should have been limited to a person not in being, the conveyance must be delayed until such person shall come into being, or until the contingency shall be determined ; in either of which cases a supplemental bill will be necessary to carry the decree into execution. An ex- ecutory devise may occasion a similar embarrassment.^ In the case of dower * the widow is often much em- barrassed, in proceeding upon a writ of dower at the common law, to discover the titles of her deceased husband to the estates out of which she claims her dower, to ascertain their comparative value, and ob- tain a fair assignment of a third. How far the courts of equity will assist a widow in the assignment of dower has been at different, times a subject of much question ; but the result of various decisions Seems to ' See Cartwright v. Pultney, 2 Atk. ' See Att. Gen. v. Hamilton, l 380; 2 Sch. & Lefr. 372 ; i Jac. & W. Madd. 214. 493- ° See the case of Wills u. Slade, 6 Ves. 498. * See note * to p. 207. DEMURRERS. 2 1 f have settled, that where there is no ground of equity, as a purchase for valuable consideration,' to prevent their interference, the courts will proceed to set out dower; though if the title to dower be disputed, it must be first established at law.° In all these cases the courts of equity will lend their aid ; but they have generally considered them- selves in so doing as proceeding merely on rights which may be asserted in a court of common law, and therefore in the two cases of partition and assignment of dower, as no costs can be given in a court of com- mon law upon a writ of partition or a writ of dower, no costs have been commonly given in a court of equity upon bills brought for the same purposes ; ^ and as arrears of dower can be recovered at common law only from demand, the same rule was adopted in the courts of equity, unless particular circumstances had occurred to warrant a departure from the course of the common law, founded on the terms of a statute.-* The courts of equity having gone the length of assuming jurisdiction in a variety of complicated cases of ac- count, of partition, and of assignment of dower, seem by degrees to have been considered as having on these subjects a concurrent jurisdiction ' with the courts of ' Williams v. Kambe, 3 Bro. C. C. 1778 ; finally reported in 2 Bro. C. C. 364. 620. See also the case of D'Arcy v. " Curtis V. Curtis, 2 Bro. C. C. 620 ; Blake, 2 Sch. & Lefr. 387. Mundy v. Mundy, 2 Ves. jr. 122. The " See Lucas v. Calcraft, Dick. 594. last case was upon a demurrer, which With respect to costs in cases of parti- after much consideration was overruled. * tion, see Calmady v. Calmady, 2 Ves. Lord Talbot had overruled a demurrer jr. 568 ; Agar v. Fairfax, 17 Ves. 533; under similar circumstances in Moor w. i Ves. & Bea. 554; and in cases of Blake, 26 July, 1735, reported Cas. dower, see Lucas v. Calcraft, i Bro. C. temp. Talb. 126, by the name of C. 134 ; and s. c. I Ves. & Bea. 20, Moore and Black. And a like decision note ; 2 Ves. 128; Worgan v. Ryder, i was made in Meggott v. Megott, in Ves. & Bea. 20. Chan. 15 Oct. 1743. But in Read v. * In the case of Curtis v. Curtis, 2 Read, 15 Dec. 1744, the court retained Bro. C. C. 620, this rule was not ob- the bill, and ordered the deeds to be served. produced, with liberty to the plaintiff "13 Ves. 279; 2 Sch. & Lefr. 309; to bring a writ of dower, which was I Ves. & Bea. 555. also done in Curtis v. Curtis, 15 May 2l8 DEMURRERS. common law in cases where no difficulty would have attended the proceedings in those courts. But except in these instances, and in some cases noticed in a subsequent page, the courts of equity will not assume jurisdiction where the powers of the ordi- nary courts are sufficient for the purposes of justice ; and, therefore, in general, where a plaintiff can have as effectual and complete remedy in a court of law as in a court of equity, ^nd that remedy is clear and certain,' a demurrer, which is in truth a demurrer to the juris- diction of the court, will hold.° * If an accident is made a ground to give jurisdic- tion to the court in a matter otherwise clearly cogniz- able in a court of common law, as the loss or want of an instrument on which the plaintiff's title is founded, the court will not permit a bare suggestion in a bill to support its jurisdiction ; but requires a degree of proof of the truth of the circumstance on which it is sought to transfer the jurisdiction from a court of common law to a court of equity,^ by an affidavit of the plaintiff annexed to and filed with the bill. Thus, if a bill is brought to obtain the benefit of an instrument upon which an action at law would lie, alleging that it is lost, and that the . plaintiff therefore cannot have remedy at law, an affi- davit of the loss must be annexed to the bill, or a demurrer will hold."* " Parry v. Owen, 3 Atk. 740 ; Ghet- such a determination is sought will toff V. Lond. Assur. Comp. 4 Bro. P. C. hold. See Jones v. Jones, 3 Meiiv. 436, Toml. ed.; i: Eq. Cas. Abr. 131; 161; Jones v. Frost, 3 Madd. i; s. c. Bensley v. Burdon, 2 Sim. & Stu. 519. Jac. R. 466. ° As courts of equity disclaim all ^ Whitechurch v. Golding, 2 P. Wms. right to decide upon the validity of 415 ; 3 Atk. 132. wills, whether of real or of personal * See Walmsleyw. Child, iVes. 342; estate, a demurrer to a bill whereby Hook v. Dorman, I Sim. & Stu. 227. * See Smith's Manual of Equity Jurisprudence, Introd. sec. I. DEMURRERS. 2I9 So in the case of a bill for discovery of any in- strument, suggesting that it is in the custody or power of the defendant, and praying any relief which might be had at law if the instrument was in the hands of the plaintiff, an affidavit must be annexed to the bill that the instrument is not in his custody or power, and that he knows not where it is, unless it is in the hands of the defendant. But if the relief sought extends merely to the delivery of the instru- ment, or is otherwise such as can only be given in a court of equity, such an affidavit is not necessaiy.' It is also unnecessary in the case of a bill for discovery of a canceled instrument, and to have another deed executed ; ^ for if the plaintiff had the canceled in- strument in his hands, he could make no use of it at law, and indeed, the relief prayed is such as a court of equity only can give. A suggestion that the evidence of the plaintiff's demand is not in his power is essential to a bill under these circumstances ; and if it is defective in this point, the defendant may by demurrer allege that there is no such charge in the bill.^ Where a right of action at law was in a trustee, and the person beneficially entitled filed a bill for relief, suggesting a refusal by the trustee to suffer an action to be brought in his name, a demurrer has been allowed ;* and if a mere suggestion to this effect would support a bill, the jurisdiction in many cases might im- properly be transferred from a court of law to a court of equity. By demurring to a bill because the plaintiff may ' Whitworth v. Golding, Mos. 192 ; * GhettofF v. Lond. Assur. Comp. 4 Nels. Rep. 78 ; Anon. 3 Atk. 17. Brown P. C. 436, Toml. ed. And see '^ King V. King, Mos. 192. I Atk. 547. ' 3 P. Wms. 395. 220 DEMURRERS. have remedy at law, the defendant will not be debarred of relief in equity upon another bill, if the plaintiff in the first bill should proceed at law and recover. ' This objection to a bill is not confined to cases cognizable in courts of common law. If any other court of ordinary jurisdiction, as an ecclesiastical court, court of admiralty, or court of prize, is competent to decide upon the subject, a demurrer will equally hold ; except that the courts of equity have in the case ,of tithes, and in the disposition of the effects of persons dying testate or intestate, assumed a concurrent juris- diction with the ecclesiastical courts, as far as the juris- diction of those courts extends ; and indeed the courts of equity in many of these cases can give more com- plete remedy than can be afforded in the ecclesiastical courts, and in some cases the only effectual remedy. Courts of equity will also lend their aid to enforce the judgments of courts of ordinary jurisdiction ;* and therefore a bill may be brought to obtain the execu- tion or the benefit of an elegit,'' or a fieri facias, ^ when defeated by a prior title, either fraudulent, or not ex- tending to the whole interest of the debtor in the prop- erty upon which the judgment is proposed to be exe- cuted. In some cases, where courts of equity formerly lent their aid, the legislature has by express statute pro- vided for the relief of creditors in the courts of com- mon law, and consequently rendered the exertion of this jurisdiction in such cases unnecessaiy. In any case to procure relief in equity, the creditor must show ' Humphreys v. Humphreys, 3 P. Atk. 107 ; Stileman v. Ashdown, 2 Atk. Wms. 39S. 608. " Lewkener v. Freeman, Pr. in Chan. = Smithier v. Lewis, I Vem. 399 ; 105 ; Higgins v. York Build. Comp. 2 Balch v. Wastall, i P. Wms. 445. * See note * to p. 207. DEMURRERS. 221 by his bill that he has proceeded at law to the extent necessary to give him a complete title. Thus in the cases alluded to of an elegit and fieri facias he must show that he has sued out the writs the execution of which is avoided, or the defendant may demur;' but it is not necessary for the plaintiff to procure returns to those writs. ° The judgments of the ecclesiastical courts giving civil rights will receive the same aid from a court of equity as those of the courts of common law ; and therefore where a person against whom there was a sentence in an ecclesiastical court at the suit of his wife for alimony, intended to avoid the execution of the sentence by leaving the kingdom, the Court of Chancery entertained a bill for a writ of ne exeat regno, to restrain him from leaving the kingdom until he had given security to pay the maintenance decreed.^ 2. Sometimes a party, by fraud, or accident, or otherwise, has an advantage in proceeding in a court of ordinary jurisdiction which must necessarily make that court an instrument of injustice ; and it is there- fore against conscience that he should use the advan- tage.* In such cases, to prevent a manifest wrong, courts of equity have interposed, by restraining the party whose conscience is thus bound from using the advantage he has improperly gained ; and upon these principles bills to restrain proceedings in courts of 'Angell V. Draper, t Vem. 398; " Read z/. Read, I Cas. in Chan. 115 ; Shirley v. Watts, 3 Atk. 200. Sir Jerom. Sraithson's Case, 2 Ventr. » Manningham w. Lord Bolingbroke, 345; Anon. 2 Atk. 210; Ambl. 76; elegit, Easter, 1777, in Chan. ; Ken-. Shaftoe v. Shaftoe, 7 Ves. 171 ; Daw- nard ». Moore, in Chan. June 23, 1756 ; son v. Dawson, lb. 173; Oldham v. 2 Eq. Cas. Abr. 251 ; King v. Marissal, Oldham, lb. 410 ; Haffey v. Haffey, 14 3 Atk. 192; s. c. lb. 200. But see Ves. 261. Balch V. Wastall, l P. Wms. 445- * See note * to p. 207. 222 DEMURRERS. ordinary jurisdiction are still frequent, though the courts of common law have been enabled, by the assistance of the legislature, as well as by a more lib- eral exertion of their inherent powers, to render appli- cations of this nature to a court of equity unnecessary in many cases where formerly no other remedy was provided. Thus if a deed is fraudulently obtained without consideration, or for an inadequate considera- tion, or if by fraud, accident or mistake, a deed is framed contrary to the intention of the parties in their contract on the subject, the forms of proceeding in the courts of common law will not admit of such an inves- tigation of the matter in those courts as will enable them to do justice. The parties claiming under the deed have therefore an advantage in proceeding in a court of common -law which it is against conscience that they should use ; and a court of equity will on this ground interfere to restrain proceedings at law until the matter has been properly investigated ; and if it finally appears that the deed has been improperly obtained, or that it. is contrary to the intention of the parties in their contract, will in the first case compel the delivery and cancellation of the deed, or order it to be deposited with an officer of the court ; and will compel a reconveyance of property, if any has been so conveyed that a reconveyance may be necessary;' and in the second case will either rectify the deed ac- ! coiding to the intention of the parties, or will restrain the use of it in the points in which it has been framed contrary to, or in which it has gone beyond, their in- See on this subject, Bishop of Win- 273; Willan v. Willan, 16 Ves. 72; Chester v. Foumier, 2 Ves. 445 ; Bates Murray v. Palmer, 2 Sch. & Lefr. 474; t>. Graves, 2 Ves. jr. 287 ; Pringle v. Walker v. Symonds, 3 Swanst. I ; Gor- Hodgson, 3 Ves. 617 ; Wright v. Proud, don v. Gordon, 3 Swanst. 400 ; Wood 13 Ves. 136 ; Ware v. Horwood, 14 v. Abrey, 3 Madd. 417 ; Tweddell v. Ves. 28; Huguenin v. Baseley, 14 Ves. Tweddell, i Turn. R. i. DEMURRERS. 223 tention in their original contract' The instances of the exercise of the jurisdiction of courts of equity in these cases, and especially in the case of a deed fraud- ulently obtained, are numerous.'' On the ground of mistake the courts of equity have also frequently inter- fered in a variety of instances, and particularly in the cases of defective securities for money ,3 and of mar- riage settlements founded on previous articles, where the settlement has been contrary to the evident inten- tion of the parties in the articles.-* The courts of equity will interfere upon the same grounds to relieve against instruments which de- stroy, as well as against instruments which create, rights ; and therefore will prevent a release which has been fraudulently or improperly obtained from being made a defense in an action at law. And where a fine and non-claim were set up as a bar to an ejectment by an heir at law, who had filed a bill in equity before the time had run on the' fine, for discovery of title deeds, and for other purposes, with a view to try his title at ' See 2 Atk. 33, 203 ; Henkle v. injury of a third person. See Brom- Royal Exchange Assur. Comp. 1 Ves. ley v. Holland, Coop. R. 9 ; 11 Ves. 317 ; Rogers v. Earl, Dick. 294 ; Mar- 535 ; 17 Ves. 112; i Ves. & Bea. 244; quis of Townshend v. Stangroom, 6 Wynne v. Callander, I Russ. R. 293 ; Ves. 328 ; Clowes v. Higginson, I Ves. and see 2 Swanst. 157, note, where the & Bea. 524 ; Beaumont v. Bramley, I leading authorities on this subject are Turn. R. 41 ; Ball v. Storie, I Sim. & collected. Of a forged instrument the Stu. 210; 2 Sim. & Stu. 178. court ought to take the custody ; and in ^ It has been sometimes doubted such a case the instrument has been whether the court ought to compel the generally ordered to be deposited with delivery and cancellation of an instru- an officer of the court. Bishop of Win- ment which ought not to be enforced, Chester v. Foumier, 2 Ves. 445, and and whether the more proper course cases there cited. would not be to order a perpetual in- ° Sims v. Urry, 2 Cas. in Chan. 225; junction to restrain the use of the in- S. C. Rep. temp. Finch, 413, and 2 strument. See I Ves. jr. 284 ; Ryan w. Freem. 16; Burgh v. Francis, I Eq. Mackmath, 3 Bro. C. C. 15, and the Cas. Abr. 320; Taylor v. Wheeler, 2 cases there cited, and Mason v. Gar- Vera. 564 ; Jennings v. Moore, 2 Vera, diner, 4 Bro. C. C. 436. But if the in- 609; Bothomly v. Lord Fairfax, i P. strument ought not to be used, it is Wms. 334. against conscience for the party hold- ' On this subject, see Randall v. ing it to retain it, as he can only retain Willis, 5 Ves. 262 ; Taggart v. Taggart, it for some sinister purpose ; and in the I Sch. & Lefr. 84 ; Blackburn v. Stables, case of a negotiable instrument it may 2 Ves. & Bea. 367; I Turn. R. 52. be used for a fraudulent purpose, to the 224 PEMURRERS. law, the House of Lords, upon an appeal, restrained the setting up the fine.' In many cases of accident, as lapse of time, the courts of equity will also relieve against the consequences of the accident in a court of law. Upon this ground they proceed in the common case of a mortgage, where the title of the mortgagee has become absolute at law upon default of payment of the mortgage money at the time stipulated for pay- ment.'' As the courts of equity will prevent the unfair use of an advantage in proceeding in a court of ordinary jurisdiction gained by fraud or accident, they will also, if the consequences of the .advantage have been act- ually obtained, restore the injured party to his rights. Upon this ground there are many instances of bills to prevent the effect of a judgment at law, and to obtain relief in equity where it was impossible by any means to have the matter properly investigated in a court of law ; or where the matter might be so investigated, to bring it again into a course of trial.^ Bills of the latter description, or (as they are usu- ally called) bills for a new trial, have not been of late years much countenanced. In general, it has been considered that the ground for a bill to obtain a new trial after judgment in an action at law must be such as would be ground for a bill of review of a decree in a court of equity upon discovery of new matter;* and therefore where judgment has been obtained against one underwriter on a policy of insurance, a point of ' Pincke v. Thomycroft, i Bro. C. Vem. 232 ; Tilly v. Wharton, 2 Vera. C. 289. 378 ; s. c. lb. 419 ; I Eq. Gas. Abr. 377, " See 7 Ves. 273 ; 2 Sch. & Left. 378 ; Countess of Gainsborough v. Gif- 6S5. ford, 2 P. Wms. 424 ; Hankey v. Ver- * Curtess v. Smalridge. i Cas. in non, 2 Cox's R. 12 ; 2 Ves. jr. 135. Chan. 43 ; 3 C. Rep. 17; Robinson z/. * I Cas. in Chan. 43. Bell, 2 Vem. 146 ; Thomas v. Gyles, 2 DEMURRERS. 225 law being adjudged on a case reserved in favor of the plaintiff at law ; and afterwards in other actions on the same policy, against other underwriters, judgment was given for the defendants on the same point, the first judgment being deemed to have been clearly errone- ous ; a demurrer was allowed to a bill brought by the defendant in the first action for a new trial. No new matter of fact had been discovered ; and if this bill had been sustained, a similar bill might have been filed whenever a court of law had pronounced an erroneous judgment which could not be reversed by a writ of error.' So if the defendant in an action at law. sub- mits to go to trial without filing a bill in equity for a discovery of evidence, and after verdict against him attempts to obtain that discovery as a ground for a new trial, the court of equity will not countenance such a proceeding v>hen there is no fraud in the con- duct of the plaintiff at law.'' * Cases of oppression, where a man has taken ad- vantage of the situation of another to obtain from him an unreasonable contract, have been the sub- jects of relief on the same ground ;3 and in some cases the courts of equity have rescinded improper contracts on the grounds of general policy, and to prevent a public inconvenience, as in the case of securities given ' Gibson v. Bell, on demurrer, 30 tion. See Field v. Beaumont, 2 Swanst. July, 1800, in Chan. 204. ^ Richards v. Symes, 2 Atk. 319 ; 'Bosanquett v. Dashwood, Gas. t. Williams v. Lee, 3 Atk. 223 ; Manning Talb. 38 ; Osmond v. Fitzroy, 3 P. Wms. V. Mestaer, in Chan. 9 Dec. 1786, on 131 ; Cooke v. Clayworth, 18 Ves. 12 ; cause shown against dissolving injunc- 6 Madd. 109. * A bill to set aside a verdict is not sustainable where the facts on which the bill is founded, though discovered since the trial, might have been establishied at the trial, upon cross-examination, (Taylor v.. Shep- pard, I Y. & C. Eq. Ex. Cas. 271.) 15 226 DEMURRERS, for marriage brokage,' or for the obtaining of public offices, or employments. " If a bill for any of these purposes does not show a sufficient ground for a court of equity to interfere, the defendant -may demur for want of matter of equity in the plaintiff's case to support the jurisdiction of the court. And the courts of equity will thus restrain and relieve against the effect of proceedings in other courts in such cases only as concern mere civil rights ; and therefore if a bill is brought for relief against a pro- ceeding at law upon a criminal prosecution, as an in- dictment or information, or a mandatory writ, as a writ of prohibition, a mandamus, or any writ which is man- datory and not remedial, the defendant may demur.'* 3. The- principles of law which guide the decisions of the courts of ordinary jurisdiction, and especially the courts of common law, were principally formed in times when the necessities of men were few, and their ingenuity was little exercised to supply their wants. Hence it has happened that, according to the princi- ples of natural and universal justice, there are many rights for injuries to which the law, as administered by those courts, has provided no remedy. This is particu- larly the case in matters of trust and confidence, of which the ordinary courts, taking in a variety of in- ' Smith w. Bruning, 2 Vem. 392'; 3 Hannington v. Du Chatel, 1 Bro. C. C. P. Wms. 394 ; Williamson v. Gihon, 2 124 ; s. c. 2 Swanst. 159, note. . Sch. & Lefr. 357. ^ Lord Montague v. Dudman, 2 Ves. '' Law V. Law, 3 P. Wms. 391 ; Whit- 396 ; I Eq. Cas. Abr. 131 ; and see 18 tingham v. Bourgoyne, 3 Anstr. goo ; Ves. 220. * A court of equity will, at the suit of a creditor, vacate and annul a fraudulent conveyance made by his debtor. But the creditor must have first obtained a judgment at law, creating a lien, in the case of real prop- erty. (2 Johns. Ch. R. 296.) And in the case of .personal property, the creditor must have sued out execution, to bind. (4 Johns. Ch. R. 677 ; 4 Md. Ch. Decis. 329 ; Adams' Equity, 306, 5 Am. ed.) DEMURRERS. 227 Stances no cognizance, and the positive law being silent on the subject, the courts of equity, considering the conscience of the party intrusted as bound to per- form the trust, have interfered to compel the perform- ance. And it has long been settled, that where trust- ees are desirous of acting under the direction and pro- tection of a court of equity, they may file a bill for those purposes against the persons interested in the ■ trust property. ' And in many other cases where the positive law has been silent, and there are rights in conscience for injuries to which the ordinary courts afford no remedy, the courts of equity have also inter- fered ; enforcing the principles of universal justice upon the ground of obligation on the conscience of the party against whom they are enforced.'' To sup- port a bill in any of these cases, it is necessary for the plaintiff to show that the subject of the suit is such upon which a court of equity will assume jurisdiction ; and if he fails to do so, the defendant may demur. 4. Courts of equity in many cases will act as an- cillary to the administration of justice in other courts, by removing impediments to the fair decision of a question. Thus, if an ejectment is brought to try a right to land in a court of common law, a court of equity will restrain the party in possession from setting up any title which may prevent the fair trial of the right, as a term for years, or other interest in a trustee, lessee, or mortgagee.^ * But this will not be done in ' Leech v. Leech, i Cas. in Chan, sponsible to creditors for the value of 249. And see Fielden v. Fielden, I assets which he had aliened. Sim. & Stu. 255. ° 6 Ves. 89 ; I Sch. & Lefr. 429 ; ' " It is said, i P. Wms. 777, that be- and see 13 Ves. 298 ; Armitage v. fore the statute of the 3 & 4 W. & M. c. Wadsworth, 1 Madd. R. 189 ; Barney 14, courts of equity made an heir re- v. Luckett, i Sim. & Stu. 419 ; Northey V. Pearce, lb. 420. * If a bill to prevent the setting up of outstanding terms of years does 228 DEMURRERS. every case ; for as the court proceeds upon the prin- ciple that the party in possession ought not in con- science to use an accidental advantage to protect his possession against a real right in his adversary, if there is any circumstance which meets the reasoning upon this principle, the court will not interfere. Therefore, if the possessor is a purchaser for a valuable consider- ation without notice of the title of the claimant, this is a title in conscience equal to that of the claimant, and the court will not restrain the possessor from using any advantage he may be able to gain to defend his possession.' It can hardly appear upon the face of a bill that the defendant is in such a situation, and there- fore the benefit of this defensfe must generally be taken by plea ; but if the case should be so stated, the defendant might demur ; because the case stated would appear to be such in which a court of equity ought not to assume jurisdiction. If the matter suggested in a bill as an impediment to the determination of a question in a court of ordinary jurisdiction in fact is ' See 2 Ves. jr. 457, 458 ; Maundrell v. Maundrell, 7 Ves. 567 ; s. c. 10 Ves. 246. not state that there are such terms, but merely alleges that the defendant , threatens to set up some outstanding satisfied terms of years, or some other legal estate or interest in the premises, it is demurrable. For an outstanding legal estate may be such as to make it impossible for tire plaintiff to recover in ejectment ; as if the legal fee was not vested in the testator, where the plaintiff claims by devise. (Stansbury v. Arkwright, 6 Sim. 481.) But if the bill alleges that there are some outstanding terms, which, if set up by way of defense, would defeat the ejectment, and that the defendant threatens to set up those terms, such an allegation is suflB- cient. (Baker v. Harwood, 7 Sim. 373.) In a bill to restrain the setting up of outstanding terms in ejectment, a positive averment of an absolute and indefeasible title in the plaintiff, as a devisee, is sufficient, notwithstanding the bill only alleges that the devisor " be\ng or claiming to be seized or otherwise well entitled," devised the estate to the plaintiff. (Houghton v. Reynolds, 2 Hare, 264.) DEMURRERS. ' 229 not so, the defendant may also demur ; for then there is no pretense for the interference of a court of equity. 5. Pending a litigation the property in - dispute is often in danger of being lost or injured, and in such cases a court of equity will interpose to preserve it, if the powers of the court in which the litigation is de- pending are insufficient for the purpose.* Thus dur- ing a suit in an, ecclesiastical court for administration of the effects of a person dead, a court of equity will entertain a suit for the mere preservation of the prop- erty of the deceased till the litigation is determined, although the ecclesiastical court, by granting an ad- ministration pendente lite, will provide for the collec- tion of the effects.' And, pending an ejectment in a court of common law, a court of equity will restrain the tenant in possession from committing waste, by felling timber, plowing ancient meadow, or otherwise.^ Against this inconvenience a remedy at the common law was in many cases provided during the pendency of a real action by the writ of estrepement ;3 and when the proceeding by ejectment became the usual mode of trying a title to land, as the writ of estrepement did not apply to the case, the courts of equity, pro- ceeding on the same principles, supplied the defect.f But, in general, if the court in which the suit is depending can itself provide for the safety of the property, a demurrer will hold. The interference to ' King V. King, 6 Ves. 172 ; Rich- i ; s. c. i Jac. R. 466 ; 6 Madd. 49, ards V. Chave, 12 Ves. 462 ; Edmunds 105. V. Bird, I Ves. & Bea. 542 ; Atkinson ' Pulteney v. Shelton, 5 Ves. 260, V. Henshaw, 2 Ves. & Bea. 85 ; Ball v. note ; Lathropp v. Marsh, 5 Ves. 259 ; Oliver, 2 Ves. & Bea. 96 ; Rutherford v. and see Onslow v. , 16 Ves. 173. Douglas, rep. I Sim. & Stu. Iii, note ; ' F. N. B. 60. 3 Meriv. 174 ; Jones v. Frost, 3 Madd. * See note * to p. 207. t An injunction may be granted to protect mortgaged property before the mortgage debt is due. (3 Bland's Ch. Rep. 125.) 230 DEMURRERS, preserve the effects of a person dead, pending a litiga- tion in the ecclesiastical court touching the adminis- tration of those effects, scarcely forms an exception to this rule ; for the protection afforded by an adminis- tration pendente lite has been often a very insufficient protection ; and in the administration of personal effects the courts of equity have assumed a concurrent jurisdiction with the ecclesiastical courts, and for many purposes have a much more effectual jurisdiction, par- ticularly for payment of creditors, and concluding all parties by the judgment of the court in the distribu- tion of the effects, and preserving the surplus for the benefit of those who may finally appear to be entitled to it. 6. Doubts have been suggested how far a court of equity ought to interfere to prevent injury arising to property pending a suit founded on trespass. This doubt, it should seem, ought to be confined to cases of mere trespass, and where the injury done is not prob- ably irreparable.' But when a doubtful right has been asserted in a manner productive of irreparable injury, the courts have interfered. Therefore, where the tenants of a manor, claiming a right of estovers, cut down a great quantity of growing timber of great value, their title being doubtful, the court of chancery entertained a bill at the suit of the lord of the manor to restrain this assertion of it ; ' and indeed the com- mission of waste of every kind, as the cutting of timber, pulling down of houses, plowing of ancient pasture, working of mines, and the like, is a very frequent ground for the exercise of the jurisdiction of 'Hanson v. Gardiner, 7 Ves. 305 ; " Stonor v. Strange, Mich. 1767, and loVes. 291 ; 17 Ves. no, 281 : i Swanst. Stonor v. Whiting, Hil. 1768, in Chan. 208, 210. See above, p. 210, note 2. i Sch. & Lefr. 8. DEMURRERS. 231 courts of equity, by restraining the waste till the rights of the parties are determined. The courts of equity have also extended their relief to restrain the owner of a mine from working minerals in the adjoining land of another, though a mere trespass under the cover of a right.' The courts of equity seem to have proceeded upon a similar principle in the very common cases of per- sons claiming copyright of printed books,* and of patentees of alleged inventions, f in restraining the publication of the book at the suit of the owner of the copy, and the use of the supposed invention at the suit of the patentees. But in both these cases the bill usually seeks an account ; in one, of the books printed, and in the other, of the profit arisen from the use of the invention ; and in all the cases alluded to it is frequently, if not constantly, made a part of the prayer of the bill that the right, if disputed, and capable of trial in a court of common law, may be there tried and determined under the direction of the court of equity ; the final object of the bill being a perpetual ' Mitchell V. Dors, 6 Ves. 147 ; 7 Ves. 308 ; Thomas v. Oakley, 18 Ves. 184. * Where a person seeks to restrain an infringement of his copyright, it is not necessary for him to specify, either in his bill or in his affidavit, the parts of the defendant's work which have been taken from his work ; but it is sufficient to allege generally that parts of the defendant's work have been pirated from the plaintiff's work ; for the pirated passages are pointed out by counsel when the injunction is moved for. (Sweet v. Maughan, 11 Sim. 51 ; see Curtis, also Phillips on Copyrights.) t In a bill to restrain the infringement of a patent, it is not necessary to set forth a full statement of the specification enrolled in respect of the letters patent. If the plaintiff by his bill refers to the specification, and alleges that he has done all that was required of him, the court on de- murrer will give credit to the allegation. (Westhead v. Keene, 8 Law J. [N. S.] Ch. Rep. .89.) 2^2 DEMURRERS. injunction to restrain the infringement of the right claimed by the plaintiff. ' * In all cases of waste committed on lands Or tene- ments, the courts of equity originally proceeded by analogy to the provisions of the old common law, by which tenant by the curtesy and in dower answered only for the value of the waste done, and a custos was assigned to prevent further waste. The statute of Marlebridge, 52 Hen. Ill, c. 23, added a fine for the offense to full damage for the injury done ; and after- wards the statute of Gloucester, 6 Edw. I, c. 5, gave treble damages, and the forfeiture of the place wasted by tenant by the curtesy, for life or for years. The forfeiture by waste, and all penalties, ought to be 'waived in a bill for restraining waste,'' the courts of equity declining to compel a discovery which may subject a defendant to any penalty or forfeiture, and confining the relief given to compensation for the damage done, and restraining future injury. So at law the person entitled to the benefit of forfeiture for waste might waive the action for waste, and maintain an action of trover for trees felled by a tenant impeach- able for waste.3 ' On the subject of copyright, see rence v. Smith, I Jac. R. 471 ; Barfield Hogg V. Kirby, 8 Ves. 215 ; Longman v. Nicholson, 2 Sim. & Stu. I ; on that V. Winchester, 16 Ves. 269; Willcins v. of patents, see Harmer v. Plane, 14 Ves. Aikin, 17 Ves. 422; Southey v. Sher- 130; Canham v. Jones, 2 Ves. & Bea. wood, 2 Meriv. 435 ; Lord and Lady 248 ; Hill v. Thompson, 3 Meriv. 622 ; Percival v. Phipps, 2 Ves. & Bea. 19 ; see Curtis on Patent Rights. Gee V. Pritchard, 2 Swanst. 402 ; Run- ' I Atk. 451. dell V. Murray, i Jac. R. 311 ; Law- ° Berry v. Heard, Cro. Car. 242. * Trade-marks are another subject of injunctive equity. If a person has adopted a particular device as a trade-mark, and another uses it, and thereby represents a spurious article as his, he may recover damages at law for the injury to his business, and may have an injunction in equity. (4 McLean, 516 ; 4 lb. 306 ; 2 Sandf. S. C. R. 599 ; Browne on Trade- marks, and Phillips on Trade-marks.) DEMURRERS. 233 With respect to copyholds, the courts appear, in some instances, to have refused to restrain waste, and left the lord to his legal remedy by forfeiture/ The rights of the lord and tenant of copyholds de- pending on the custom of each manor, it has perhaps been thought that the lord is not entitled to that pro- tection which is given to rights ascertained by the common law of the land, and that he has generally the remedy in his own hands. Upon a lease of land in Ireland for lives, renewable forever, the courts of equity there have declined.restraining waste not specially pro- vided for by the terms of the lease. " But in the case of waste the courts of equity have in many instances given remedies where the common law has provided nonl. Thus in the case of coparce- ners ^ and tenants in common,* the court has interfered to 'prevent the destruction of the property by one co- parcener, or one tenant in common, to the injury of the rest.^ So where tenant for life not impeachable for waste has proceeded to destruction of a mansion- house,* or to cut down ornamental trees, or trees nec- essary for the protection of a mansion, or young sap- lings.' In these cases it should seem that the courts have proceeded on the ground that the acts done were an unconscientious use of the powers given to the par- ticular tenant, and in some instances, perhaps, partak- ing of the nature of mere malicious mischief.* It has 'Dench v. Bampton, 4 Ves. 700. "yVes. 5go; 16 Ves. 131. In a cause, however, of Richards v. ' Vane v. Lord Barnard, 2 Vem. Noble, before Lord Erskine, when 738. chancellor, now reported in 3 Meriv. ' Abraham v. Bubb, 2 Freem. 53 ; 673, this decision was overruled. Chamberlyne v. Dummer, i Bro. C. C. " Calvert v. Gason, 2 Sch. & Lefr. 166, and cases there cited ; and see 561. above, p. 210, note 2. ' Beaumont and Sharp, May 9, 1751. " 2 Freem. 278 ; Bishop of London * Hole V. Thomas, 7 Ves. 589 ; Twort v. Web, I P. Wms. 527. V. Twort, 16 Ves. 128. 234 DEMURRERS. been much doTlbted whether in some instances this relief has not been carried to an extent which may be, found productive of great inconvenience, and perhaps injustice, if the decisions should be implicitly followed.' Where persons were bound by covenant to keep the banks of a river in repair, and by their acts in con- travention of the covenant great injury was likely to arise, a court of equity has interfered by injunction." In all the cases in which the interference of a court of equity is thus sought, if the bill should not clearly show the title of the plaintiff, or his right to demand the assistance of the court in his favor, or that the case is one to which the court will apply the remedy sought, the defendant may demur. 7. It has been mentioned ^ that where two or more persons claim the same thing by different titles, and another person is in danger of injury from ignorance of the real title to the subject in dispute, courts of equity will assume a jurisdiction to protect him ; and that the bill exhibited for this purpose is termed a bill of interpleader, the object of it being to compel the claimants to interplead, so that the court may adjudge to whom the property belongs, and the plaintiff may be indemnified.* The principles upon which the courts of equity proceed in these cases are similar to those by which the courts of law are guided in the case of bail- ment ; the courts of law compelling interpleader be- tween persons claiming property, for the indemnity of a third person in whose hands the property is, in cer- tain cases only ; as where the pxoperty has been bailed ' See 16 Ves. 185. « See above, p. 147. ' Lord Kilmorey v. Thackeray, cited 2 Brown C. C. 65. * See note * to p. 207. DEMURRERS. 235 to the third person by both claimants, or by those under whom both make title, or where the property came to the hands of the third person by accident; and the courts of equity extending the remedy to all cases to which in conscience it ought to extend, whether any suit has been commenced by any claim- ant, or only a claim made. ' This remedy has been applied to the case of ten- ants of lands charged with annuities, and liable to dis- tress by their landlord, and the claimants of annuities,'' and to other cases of disputed titles, ^ in which the ten- ants have been permitted to pay their rents into court.* If a bill of interpleader does not show that each of the defendants whom it seeks to compel to interplead claims a right, both the defendants may demur ; one, because the bill shows no claim of right in him ; the other, because the bill, showing no claim of right in the codefendant, shows no cause of interpleader. = Or if the plaintiff shows no right to compel the defendants to interplead, whatever rights they may claim, each defendant may demur.® A bill of this nature is also ' It may here be noticed, that if at ground of privity having been created the hearing the question betvifeen the by the act of the landlord between his defendants be ripe for decision, this tenant and the other claimant. See court will make a decree ; and that if Cowtan v. Williams, 9 Ves. 107 ; Clarke such be not the case, it will direct an v. Byne, 12 Ves. 383 ; E. I. Comp. v. action, an issue, or a reference to a Edwards, 18 Ves. 376. master, in order to bring the matter to '1 Ves. 249. a determination. See Duke of Bolton " As, for example, if a tenant were V. Williams, 2 Ves. jr. 138 ; s. C. 4 Bro. to file such a bill against his landlord, C. C. 297 ; Angell v. Hadden, 16 Ves. and a person with whom he himself has 202. no privity, but who claims by a title " Surry and others. Tenants of Lord adverse to that of the landlord (Dun- Waltham, against Vaux and others, 28 gey v. Angove, 2 Ves. jr. 304 ; 2 Anstr. Feb. 1785 ; Aldri'dge v. Thompson, 2 532 ; Johnson v. Atkinson, 3 Anstr. Bro. C. C. 150 ; Lord Thomond's Case, 798) ; or an agent against his princi- cited 9 Ves. 107 ; Angell v. Hadden, 15 pal and a third person (Nicholson v. Ves. 244 ; s. c. 16 Ves. 202. Knowles, 5 Madd. 47) ; or a debtor ' Wood V. Kay and wife and others, against his creditor become a bankrupt, 19 Dec. 1786 ; 2 Ves. jr. 31Z ; 16 Ves. and the assignees of the latter. Harlow 203, 204. V. Crowley, i Buck B. C. 273, and ' It is however observable, that in Lowndes v. Comford, 18 Ves. 299 ; s. c. such cases the court interferes on the I Rose B. C. l8o. 236 DEMURRERS. liable to a peculiar cause of demurrer ; for as the court will not permit such a bill to be brought in collusion with either claimant, the plaintiff, as has been already- mentioned, is required to annex to his bill an affidavit that it is not exhibited in collusion with any of the parties, to induce the court to entertain jurisdiction of the suit ; and the want of that affidavit is therefore a ground of demurrer. ' * A bill of this nature generally prays an injunction to restrain the proceedings of the claimants in some other court ; and as this may be used to delay the payment of money by the plaintiff, if any is due from him, he ought by this bill to offer to pay the money due into court, "f If he does not do so, it is perhaps in strictness a ground of demurrer. J 8. In many cases the courts of ordinary jurisdiction admit, at least for a certain time, of repeated attempts to litigate the same question. To put an end to the oppression occasioned by the abuse of this privilege, the courts of equity have assumed a jurisdiction. 3|| ' Metcalf V. Harvey, I Ves. 248 ; and demurrer would be prevented by the see 2 Ves. & Bea. 410. money being brought into court. See " Lord Thanet v. Patterson, 3 Bar- 19 Ves. 323. nard, 247 ; 2 Ves. jr. 108, log. It seems ' 2 Sch. & Lefr. 211. that there might be a case in which a * Where a bill of interpleader is filed by the officer of a company on behalf of the company, the affidavit annexed ought to state, not that the secretary, who is the mere nominal plaintiff, does not collude, but that, to the best of his knowledge and belief, the society, who are the real plaintiffs, do not collude with the defendants. (Bignold v. Audland, 1 1 Sim. 23.) t Where a bill of interpleader is filed respecting a sum of money on which interest is payable at law, under the stat. 3 & 4 Wm. IV, c. 42, s. 8 (as in the case of a sum insured), the plaintiff ought to offer by his bill to pay the interest. (Bignold v. Audland, 11 Sim. 23.) X A bill of interpleader is not demurrable on account of its not offering to pay the money claimed into court. , But it is said that the plaintiff must bring it in before he takes any step in the cause. (Meux v. Bell, 6 Sim. 175.) [ See note * to p. 207. DEMURRERS. 237 Thus, actions of ejectment having become the usual mode of trying titles at the common law, and judg- ments in those actions not being in any degree con- clusive, the courts of equity have interfered ; and after repeated trials, and satisfactory determinations of ques- tions, have granted perpetual injunctions to restrain further litigation,' and thus have in some degree put that restraint upon litigation which is the policy of the common law in the case of real actions.'' Upon the same principle ^ the courts of equity seem to have interfered in cases as well of private as of public nuisance ; * in the first, at the suit of the party injured ; * in the second, at the suit of the attor- ney general ; = restraining the exercise of the nuisance where the proceedings at law are ineffectual for the purpose, and preventing the creation of a nuisance where irreparable injury to individuals or great public injury would ensue.* In the case of a private nuisance it seems necessary that a judgment at law, ascertaining the rights of the parties, should have been previously obtained.^ On informations by the attorney general on behalf of the crown, the Court of Exchequer has proceeded to the abatement of nuisances injurious to the royal prerogative, such as nuisances in harbors, or even trespasses on the public rights of the crown ' Earl of Bath -v. Sherwin, Prec. in * See Ryder v. Bentham, i Ves. 543 ; Chan. 261 ; s. c. 4 Brown P. C. 373. Att. Gen. v. NichoU, 16 Ves. 338 ; s. c. TomL ed. ; Leighton v. Leighton, I P. 3 Meriv. 687. Wms. 671 ; s. c. 4 Bro. P. C. 378, ' See Anon. 3 Atk. 750 ; s. c. named Toml. ed. And see Anon. Gilb. Eq. Baines !>. Baker, Ambl. 158; Att. Gen. Jl. 183 ; s. c. 2 Eq. Abr. 172; Barefoot v. Cleaver, 18 Ves. 211. V. Fry, Bunb. 158 ; 2 Sch. & Lefr. 211. ° 16 Ves. 342. ' Strange, 404. . ' 19 Ves. 622 ; Chalk v. Wyatt, 3 ' See Dick. 164 ; x6 Ves. 342 ; 19 Merir. 688 ; Wynstanley v. Lee, a Ves. 622. Swanst. 333. * See note * to p. Txfj, supra. 238 DEMURRERS. without any nuisance/ If a trespass is made on the soil of the crown, whether reserved for the private use of the sovereign or for public purposes, and the trespass does not produce a public injury, the juris- diction may be founded on the right of the crown to have the land arrented, and the profit accounted for as part of the royal revenue, in the nature of an assart; and if the trespass produces, or may in its consequences produce public injury, the crown is en- titled to the most effectual means of preventing the injury.^ Courts of equity will also prevent multiplicity of suits ; and the cases in which it is attempted and the means used for that purpose are various. * With this view, where one general legal right is claimed against several distinct persons, a bill may be brought to establish the right.^ Thus, where a right of fishery was claimed by a corporation throughout the course of a considerable river, and was opposed by the lords of manors and owners of land adjoining, a bill was enter- tained to establish the right against the several oppo- nents, and a demurrer was overruled.-* As the object of such bills is to prevent multi- plicity of suits by determining the rights of the parties upon issues directed by the court, if necessary for its information, instead of suffering the parties to be harassed by a number of separate suits, in which each suit would only determine the particular right in ques- " Att. Gen. v. Forbes, Ex. Trin. ration of Carlisle w. Wilson, 13 Ves. 276 ; 1795; Hale de Jure Maris, p. I, c. 4, Duke of Norfolk w. Myers, 4 Madd. 83 ; p. 18 ; Churchman w. Tunstal, Hardr. I Jac. & W. 369.^ 162; Att. Gen. v. Richards, Anstr. 603. * Mayorof Yorkw. Pilkington,lAtk. ' 18 Ves. 218. 282. °2Atk. 484; II Ves. 444; Corpo- * See note * to p. 207, supra. DEMURRERS. 239 tion between the plaintiff and defendant in it, suet a bill can scarcely be sustained where a right is disputed between two persons only, until the right has been tried and decided upon at law/ Indeed, in most cases it is held that the plaintiff ought to establish his right by a determination of a court of law in his favor before he files his bill in equity ; "^ and if he has not so done, and the right he claims has not the sanction of long possession,^ and he has any means of trying the matter at law,* a demurrer will hold. If he has not been actually interrupted or dispossessed, so that he has had no opportunity of trying his right, he may bring a bill to establish it, though he has not previously recovered in affirmance of it at law, and in such a case a demurrer has been overruled.^ It is not necessary to establish a right at law before filing a bill where the right appears on record, as under letters patent for a new invention, in which case a demurrer to a bill for an injunction to restrain an infringement of the patent right has been over- ruled.^ So in the cases of bills brought by authors or their assignees to restrain the sale of books where the fight which is the foundation of the bill is grotfnded on an act of parliament.'' And where a right appeared on record by a former decree of the court, it was determined that it was not necessary to establish it at law before filing a bill.^ Where a right ' Lord Teynham v. Herbert, 2 Atk. ° i Atk. 284. And see Duke of Dor- 483. set V. Girdler, Prec. in Chan. 531. But " I Atk. 284 ; Anon. 2 Ves. 414 ; 2 see Welby v. Dyke of Rutland, 2 Bro. Sch. &Lefr. 208; n Ves. 444; I Jac. P. C. 39, Toml. ed. ; 2 Sch. & Lefr. & W. 369. 2og. ' Bush V. Western, Prec. in Chan. " Horton and Maltby, in Chan. 23 530. July, 1783 ; 3 Meriv. 624. * Whitchurch V. Hide, 2 Atk. 391 ; ' ' ^es. 476. Wells V. Smeaton, in Chan. 27 May, * Ibid. 17S4. 240 DEMURRERS. prima facie and of common right is vested in the crown, it will receive the same protection,' and this principle may be applied to some of the cases men- tioned in a preceding page. A court of equity will thus protect private rights, or rights of those who may be comprehended under one common capacity, as the inhabitants of a parish, or the tenants of a manor, which has been frequently done in bills to establish parochial customs of tithing disputed by the tithe-owner, and more rarely in bills to establish the customs of manors disputed by the lord ;" but will not establish or decree a perpetual in- junction for the enjoyment of a right in contradiction to a public right, as a right to a highway or a common navigable river, for that would be to enjoin all the people of England,^ although it will restrain a public nuisance at the suit of the attorney general. A court of equity will also prevent injury in some cases by interposing before any actual injury has been suffered ; by a bill which has been sometimes called a bill quia timet* in analogy to proceedings at the common law, where in some cases a writ may be maintained before . any molestation, distress, or im- pleading.* Thus a surety may file a bill to compel the debtor on a bond in which he has joined to pay the debt when due, whether the surety has been actually sued for it or not ; and upon a covenant to save harm- ' See 6 Ves. 713 ; Grierson v. Eyre, ' Lord Hardwicke, in Lord Faucon- 9 Ves. 341 ; 13 Ves. 508. berg and Pierse, nth of May, 1753 ; 2 New Elme Hospital v. Andover, I Eq. Cas. Abr. 171 ; Ambl. 210. Vem. 266 ; Baker v. ttogers, Sel. Cas. • Co. Litt. 100, ^. in Chan. 74 ; Cowper v. Clerk, 3 P, Wms. 155 ; 2 Eq. Cas. Abr. 172. * See note * to p. 207. DEMURRERS. 241 less, a bill may be filed to relieve the covenantee under similar circumstances.' 9. To administer to the ends of justice without pronouncing any judgment which may affect any rights, the courts of equity in many cases compel a discovery which may enable other courts to decide on the subject. The cases in which this jurisdiction is exercised will be considered in treating of demurrers to discovery only. 10. When the testimony of witnesses is in danger of being lost before the matter to which it relates can be made the subject of judicial investigation, a court of equity will lend its aid to preserve and perpetuate the testimony ; ' * and as the courts of common law cannot generally examine witnesses, except viva voce upon the trial of an action, the courts of equity will supply this defect by taking and preserving the testi- mony of witnesses going abroad, or resident out of the kingdom,^ which may be afterwards used in a court of common law. As the object of this jurisdiction is to assist other courts, and by preserving evidence to pre- vent future litigation, there are few cases in which the court will decline to exercise it. A demurrer to a bill seeking the benefit of it will therefore seldom lie ; + and in a case where the court was of opinion that the 'Lord Ranelagh z/. Hayes, I Vem. i Madd. 208; Devis v. TumbuU, 6. 189, 190; and on the general subject, Madd. 232; Baskett w. Toosey, 6 Madd. see also i Ves. 283 ; Flight v. Cook, 2 261 ; Angell v. Angell, I Sim. & Stu. 83 ; Ves. 619 ; Green v. Pigot, i Bro. C. C. Mendizabel v. Machado, 2 Sim. & Stu. 103 ; Brown v, Dudbridge, 2 Bro. C. C. 485. 321. * I Atk. 451, 571; I P. Wms. 117 ; " See above, p. 150, note 2. Tirrell v. Co. I Rol. Abr. 383 ; Mendez ' As to the examination of witnesses v. Barnard, 16 May, 1735, on demurrer; resident abroad, see Cock v. Donovan, Lord Dursley v. Fitzhardinge, 6 Ves. jr. 3 Ves. & Bea. 76; Bowden v. Hodge, 2 251 to 266. See, however. The Earl of Swanst. 258 ; Cheminant v. De la Cour, Belfast v. Chichester, 2 Jac. &.W. 439.. * See note * to p. 207, 16 242 DEMURRERS. defendant might demur both to the discovery sought and the relief prayed by a bill, it was held that to so much of the bill as sought to perpetuate the testimony of witnesses the defendant could not demur/ But if the case made by the bill appears to be such on which the jurisdiction of the court does not arise, as if the matter to which the required testimony is alleged to relate can be immediately investigated in a court of law, and the witnesses are resident in England, a de- murrer will hold.'' Still, however, where from circum- stances, as the age or infirmity of witnesses, or their intention of leaving the kingdom, it has been probable that the plaintiff would lose the benefit of their testi- mony, though he should proceed with due diligence at law, the court has sustained a bill for their examination ;' and to avoid a demurrer in this case, it seems necessary to annex to the bill an affidavit of the circumstance by means of which the testimony may probably be lost.-* A bill for the examination of a single witness has been permitted where his evidence was of the utmost importance, and he was the only witness to the point, apparently upon the single' ground that, as he was the only witness, there was danger of losing all evidence of the matter before it could be given in a court of law ; but in this case an affidavit of the wit- ness was annexed to the bill.^ The principle on which it is required in these cases to annex to the bill an affiidavit of the circumstances which render ' Earl of Suffolk w. Green, I Atk. 450. 21; Corbett v. Corbett, i Ves. & Bea. See Thorpe v. Macaulay, 5 Madd. 218; 335 ; Atkins v. Palmer, 5 Madd. 19; Shaken v. Macauley, 2 Sim. & Stu. 79. D,ew v. Clarke, I Sim. & Stu. 108. '' Lord North v. Lord Gray, Dick. 14 ; * Philips v. Carew, I P. Wms. 117 ; I Sim. & Stu. 89. I Ves. & Bea. 23. ' As to the examination of witnesses ' Shirley z;. Earl Ferrers, 4th Seal after under such circumstances, de bene esse, Trin. Term, 1730, MS. N ; 3 P. Wms. see Shirley v. Earl Ferrers, 3 P. Wms. 77 ; M. 1730, .8 Ves. 32. See above, p. 77 ; Palmer v. Lord Aylesbury, 15 Ves. 150, note 3. 176 ; Andrews v. Palmer, I. Ves. & Bea. DEMURRERS. 243 the examination of witnesses proper in a court of equity, though the matter is capable of being made immediately the subject of a suit at law, seems to be the same as that on which the practice of annexing an affidavit of the loss or want of an instrument to a bill seeking to obtain in a court of equity the mere legal effect of the instrument is founded, namely, that the bill tends to alter the ordinary course of the administration of justice, which ought not to be permitted upon the bare allegation of a plaintiff" in his bill. II. It has been before noticed, that the establish- ment of courts of equity has obtained throughout the whole system of our judicial polity ; and that most of the inferior branches of that system have their peculiar courts of equity, the Court of Chancery assuming a general jurisdiction in cases not within the bounds, or beyond the powers of inferior jurisdictions. The prin- cipal of the inferior jurisdictions in England are those of the counties palatine of Chester, Lancaster, and Durham, the courts of great session in Wales, the courts of the two universities of Oxford and Cam- bridge, the courts of the city of London and of the cinque-ports. ' * These are necessarily bounded by the locality either of the subject of the suit or of the resi- dence of the parties litigant. Where those circum- stances occur which give them jurisdiction, they have exclusive jurisdiction in matters of equity as well as matters of law; and they have their own peculiar courts of appeal, the Court of Chancery assuming no ' The Court of Exchequer, as a court of equity, does not seem to give to any person the privilege of being sued there. * See notes t and |, p. 103. 244 DEMURRERa jurisdiction of that nature, though it will in some cases remove a suit before the decision into the chancery by- writ of certiorari. When therefore it appears on the face of a bill that another court of equity has the proper jurisdiction, either immediately, or by way of appeal, the defendant may demur to the jurisdiction of the Court of Chancery. Thus to a bill of appeal and review of a decree in the court of the county palatine of Lancaster, the defendant demurred, because on the face of the bill it was apparent that the Court of Chancery had no jurisdiction ; and the demurrer was allowed. ' But demurrers of this kind are very rare ; for the want of jurisdiction can hardly appear upon the face of the bill, at least so conclusively as is necessary" to deprive the chancery, a court of general jurisdiction, of cognizance of the suit ; and a demurrer for want of jurisdiction founded on locality of the subject of the suit, which alone can exclude the jurisdiction of the chancery in a matter cognizable in a court of equity, has even been treated as informal and improper. ' This, however, can only be considered as referring to cases where circumstances may give the chancery juris- diction, and not to cases where no circumstance can have that effect. Thus the counties palatine having their peculiar and exclusive courts of equity under cer- tain circumstances, which will be more fully considered in another place,* the Court of Chancery will not in- terfere when all those circumstances attend the case, and they are shown to the court ; though if those cir- cumstances are not shown, or if they are not shown in proper time, and the defendant, instead of resting upon them and declining the jurisdiction, enters into the ' Jennet v. Bishopp, i Vern. iS^. * See pleas to the jurisdiction of the I See I Ves. 203, 204. Court of Chanceiy. See Roberdeau v. Rous, i Atk. 543. DEMURRERS. 245 defense at large, the court, having general jurisdiction, will exercise it. But where no circumstance can give the chancery jurisdiction, as in the case alluded to of a bill of appeal and review of a decree in a county pala- tine, it will not entertain the suit, even though the de- fendant does not object to its deciding on the subject. III. If a plaintiff is not entitled to sue by reason of any personal disability,' which is apparent in the bill, the defendant may demur. Therefore, if an infant, or a married woman, an idiot or a lunatic, exhibiting a bill, appear upon the face of it to be thus incapable of instituting a suit alone, and no next friend or commit- tee is named in the bill, the defendant may demur ; but if the incapacity does not appear upon the face of the bill, the defendant must take advantage of it by plea. This objection extends to the whole bill, and advantage may be taken of it as well in the case of a bill for discovery merely as in the case of a bill for relief. For the defendant in a bill for a discovery merely, being always entitled to costs after a full an- swer as a matter of course, would be materially injured by being compelled to answer a bill exhibited by per- sons whose property is not in their own disposal, and who are therefore incapable of paying the costs. IV. Interest in the subject of the suit,* or a right ' See Wartnaby v. Wartnaby, I Jac. R. 377. * If one or some of the coplaintiffs be not interested in the subject of the suit, the bill is demurrable (Page v. Townsend, 5 Sim. 395 ; Delondre V. Shaw, 2 Sim. 237) : as in the case of a mere agent concerned with the subject-matter of the suit (The King of Spain v. Machado, 4 Russ. 225) ; or a trustee under a deed which never had any operation as a valid instru- ment. (Cuff z-. Platel, 4 Russ. 242.) So where an indorsee of a bill of exchange brings an action against the acceptor (a banker) who accepted the bill as agent for another (a customer), 246 DEMURRERS. in the thing demanded, and proper title to institute a suit concerning it * are essentially necessary to sus- and refuses to pay on the ground that the indorsee is not the person au- thorized to receive the money by the party to whose order it was made payable, and the acceptor files a bill of discovery in aid of his defense ; such a bill is demurrable, if the party for whom he accepted the bill is joined with him as a coplaintiff : because there is no contract between the indorsee and the party for whom the acceptor has accepted the bill : the indorsee has nothing whatever to do with that party, although he, and not the acceptor, is the person substantially interested in the result of the action. And if, in such a suit, the party to whose order the money was payable is an officer of the government of a foreign country, and the money forms part of a loan negotiated by the government of that country, and the gov- ernment is changed, no question can be raised respecting the right of the new government, or any one claiming through it, "to receive the money ne- gotiated by the former government : for, in such a suit, the question, who is beneficially entitled to the money, cannot be discussed. (Glyn v. Soares, 3 M. & K. 450.) In this case the treasurer of the royal treasury of Portu- gal was the officer to whose order the n;oney was payable, as part.of a loan negotiated by Don Miguel, who was shortly afterward succeeded by Donna Maria. Great evil might be occasioned if persons having no interest were allowed to be made coplaintiffs with others having an interest in the sub- ject of the suit. For instance, by an artful selection of coplaintiffs having no interest, a coplaintiff having an interest might thereby insure such a series of abatements, by a succession of deaths and marriages, as would enable him to oppress the defendants, and prevent the suit from ever reaching a stage in which the expense might be made to recoil upon him- self. And if a defendant had occasion to file a cross-bill, he would be obliged to make the other coplaintiffs defendants thereto. Again, a plaintiff out of the jurisdiction of the court might escape from giving security for costs, by joining, as a coplaintiff, a person having no interest, but residing within the jurisdiction. And all the plaintiffs who have an interest in the suit might die and leave those who have no interest to carry on the suit. (Arg. of counsel in The King of Spain v. Machado, 4 Russ. 225.) Where a bill is filed against a trustee for a breach of trust, but two of the coplaintiffs induced the trustee to commit such breach of trust, and gave him an indemnity in respect thereof, still, if the othsr coplaintiffs are infants, and the objection is not taken until the hearing, it will be over- ruled. (Wilkinson v. Parry, 4 Russ. 272.) * An uncertificated bankrupt cannot call on his assignees for a general DEMURRERS. 247 tain a bill ; and if they are not fully shown by the bill itself, the defendant may demur.' Therefore, where a Protestant next of kin claimed a rent charge settled on a Papist on her marriage, a demurrer was allowed,' for the plaintiff had evidently no right to the thing which he demanded by his bill, the Papist being incapable of taking by purchase, * and the grant of the rent charge being therefore utterly void. And where a plaintiff claimed under a will, and it was apparent, upon the construction of the will, that he had no title, a demurrer was allowed.3 But in this case it was said, that if upon arguing^ the demurrer, the court had not been satisfied, and had been therefore desirous that the matter should be more fully debated at a deliberate hearing,* the demurrer would have been overruled, without ' See 2 Sch. & Lefr. 638 ; Darthezw. the court rather incautiously, as a dry Winter, 2 Sim. & Stu. 536. question upon the construction of a wiil ' See Michaux v. Grove, 2 Atk. 210./ maybe as deliberately deteimined upon ' Brownsword v. Edwards, 2 Ves. argument of a demurrer as at the hear- 243. See also Beech v. Crull, Prec. in ing of a, cause in the ordinary course ; Chan. 589 ; Parker v. Feamley, 2 Sim. and the difference in expense to the par- & Stu. 592. ties may be considerable. See above, p. * Perhaps this declaration fell from 204, note i. account of all their transactions, which he might have by applying to the court of bankruptcy. (Tarleton v. Hornby, i Y. & C. Eq. Ex. 172.) But if the assignees of a bankrupt fraudulently and collusively sell his estate while he is proceeding to get his commission superseded, he may file a bill against them and the purchaser to set aside the sale, on the ground of fraud and collusion, if the purchaser has not come in under the commission, so that the court of review has no jurisdiction over him, and if the bankrupt has settled with all his creditors, and they have con- sented to the commission being superseded. (Lautour v. Holcombe, 8 Sim. 76.) And a bill by an insolvent to set aside an assignment by his assignee of his interest under a will, on the ground of a special case of collusion between his assignees and the executors, is not demurrable. (Burton v. Jayne, 7 Sim. 24.) The counsel for the insolvent, in this case, urged that the collusion, and the fact that the Insolvent Debtors' Court had no power to set aside deeds, were sufficient to maintain the bill. * This disability was abolished by the stat. 10 Geo. IV, c. 7, s. 23. 248 DEMURRERS. prejudice to the defendant's insisting- on the same matter by way of answer/ which indeed it should seem may in all cases be done without the special declaration of the court, that the overruling of the demurrer shall be without prejudice. Though the plaintiff in a bill may have an interest in the subject, yet if he has not a proper title to insti- tute a suit concerning it, a demurrer will hold.^* Therefore, where persons who had obtained letters of administration of the estate of an intestate in a foreign court, on that ground filed a bill seeking an account of the estate, a demurrer was allowed,^ because the plaintiffs did not show by their bill a complete title to institujte a suit concerning the subject ; for though they might have a right to administration in the ' 2 Ves. 247. a demurrer was allowed. Edwards v. ' It seems the plaintiff must distinct- Edwards, I Jac. R. 335. ly show a title in equity ; for where one » ° Tourton v. Flowers, 3 P. Wms. stated a title either at law or in equity, ^69. * See note *, p. 246. The clause in the insolvent debtors' act (i Geo. IV, c. 119, s. 11), requiring the consent of the major part in value of the creditors to the institution of a suit, was inserted for the benefit of the creditors alone ; so that the want of such consent cannot be urged as an objection by a defendant in a suit by the assignees. (Piercy v. Roberts, I M. & K. 4.) And the same is the case with regard to suits by the assignees of bankrupts. (Gerothwohl v. Cochrane, 5 Law J. [N. S.] 47, M. R.) Where a person files a bill against the directors of an unincorporated joint stock company, in respect of a fraud committed by them on the shareholders ; and by the rules of the company, as stated in the bill itself, no transfer of shares is to be valid, unless the purchaser shall have been approved of by a board of directors, and shall have executed a proper instrument binding himself to the observance of the regulations of the company ; and the plaintiff in such bill alleges that he purchased and is the holder of shares, but he does not set forth his title as purchaser, or state that he had complied with the condition precedent above men- tioned ; the bill is demurrable on that account. (Walburn v. Ingilby, \ M. &K. 61.) DEMURRERS. . 249 proper ecclesiastical court in England, and might, therefore, really have an interest in the thing de- manded by their bill, yet, not showing that they had obtained such administration, they did not show a complete title to institute their suit* And where an executor does not appear by his bill to have proved the will of his testator, or appears to have proved it in an improper ' or insufficient '■' court, as he does not show a complete title to sue as executor, a demurrer will hold. Want of interest in the subject of a suit, or of a title to institute it, are objections to a bill seeking any kind of relief, or filed for the purpose of discovery merely. Thus, though there are few cases in which a man is not entitled to perpetuate the testimony of witnesses, yet if upon the face of the bill the plaintiff appears to have no certain right to or interest in the matter to which he craves leiave to examine, in present or in future,^ a demurrer will hold. Therefore, where a person claiming as devisee in the will of a person living, but a lunatic, brought a bill to perpetuate the testimony of witnesses to the will against the pre- sumptive heir at law ; ■* and where persons who would ' 3 p. Wms. 371. ' Sackvill v. Ayleworth, I Vem. 105 ; " Comber's Case, I P. Wms. 766. i Eq. Gas. Abr. 234; Smith v. Watson, " Smith V. Att. Gen. in Chan. Mich, in Chan, 20 June, 1760; 2 Prax. Aim. 1777 ; 6 Ves. 260; Allan v. Allan, 15 Cur. Cane. 500, where there is the form Ves. 130. of a demurrer. * Although a prerogative administration must be obtained before money can be paid out of court, and in Young v. Elworthy (i M. & K. 215), Sir John Leach held that it was necessary to produce a prerogative administration before the decree can be drawn up ; yet a suit may be commenced without such an administration, and cannot be stopped by demurrer on account of that circumstance. (Metcalfe v. Metcalfe, i Keen, 74.) 250 DEMURRERS. have been entitled to the personal estate of a lunatic if he had been then dead intestate, as his next of kin, supposing him legitimate, brought a bill, in the life- time of the lunatic, to perpetuate the testimony of witnesses to his legitimacy, against the attorney general as supporting the rights of the crown,' demurrers were allowed. For the parties in these cases had no interest which could be the subject of a suit ; they sustained no character under which they could afterwards use the depositions," and therefore the depositions, if taken, would have been wholly nugatory. So in every case where the plaintiff in a bill shows only the probability of a future title upon an event which may never happen, he has no right to institute any suit concerning it ; and a demurrer will hold to any kind of bill on that ground, which will extend to any discovery as well as to reliefs If the claim of the plaintiff is of a matter in itself unlawful, as of money promised to a counsellor at law for advice and pains in carrying on a suit;'* or of money bequeathed by a will to purchase a dukedom;' the defendant may demur to the bill, for the plaintiff not having a lawful claim, has no title to sue in a court of justice. There are grounds of demurrer to a bill for a dis- covery rrierely as well as to a bill for relief. But if a plaintiff shows a complete title, though a litigated one, or one that may be litigated, as that of an administra- tion, where a suit is depending to revoke the adminis^ ' Smith V. Att. Gen. in Chan. Mich, i Eq. Cas. Abr. 234; Smith v. Att. Gen. 1777; 6Ves.256,26o; 15 Ves. 133, 136. Mich. 1777. " See 2 Prax. Aim. Cur. Cane. 501 ; ' Penrice v. Parker, Rep. temp, and see The Earl of Belfast w. Chiches- Finch, 75; and see Moor v. Rowe, i ter, 2 Jac. & W. 439. Rep. in Chan. 38 ; 2 Atk. 332. ' Sackvill V. Ayleworth, i Vem. 105 ; * Earl of Kingston v. Lady Piere- pont, I Vern. 5. DEMURRERS. 25 1 tration ; ' or of an administrator where there may be another personal representative ; '" a demurrer will not hold, at least to discovery. For in the first case, till the litigation is determined the plaintiffs title is good ; and in the second case, the court will not consider the ecclesiastical court as having done wrong. And where a doubtful title only is shown, it is necessarily sufficient to support a bill seeking the assistance of a court to preserve property in dispute pending a litigation. Therefore where a suit was pending in .an ecclesiastical court touching the representation to a person deceased, a demurrer of one of the parties to that suit, who had possessed the personal estate of the deceased, to a bill for an account filed by the other party was overruled. ^ The ground of this decision seems to have been the deficient powers of the ecclesiastical court for securing the effects whilst the suit there was depending; and the doubt as to the title of the parties was the very- ground of the application to the court. V. A plaintiff may have an interest in the subject of his suit, and a right to institute a suit concerning it, and yet may have no right to call on a defendant to answer his demand. This may be for want of privity between the plaintiff and defendant. Thus, though an unsatisfied legatee has an interest in the estate of his testator, and a right to have it applied to answer his demands in a due course of administration, yet he has no right to institute a suit against the debtors to his testator's estate for the purpose of compelling them to pay their debts in satisfaction of his legacy. •» For there ' Wright V. Blicke, lb. 106. ris, 31 Oct. 1786. Demurrer overruled, ■' 3 P. Wms. 370. 2 Bro. C. C. 121. = Phipps V. Steward, i Atk. 286. * Bickly v. Dorrington, 10 March, And see Andrews v. Powys, 2 Brown 1736, Rolls, 12 Nov. 1737 ; Lord Chan. P. C. 504, Toml. ed. See also Wills v. on appeal, cited Barnard, 32 ; and 6 Rich, 2 Atk. 285 ; and Morgan v. Har- Ves. 749 ; Monk v. Pomfret, cited lb. ; 252 DEMURRERS. is no privity between the legatee and the debtors, who are answerable only to the personal representative of the testator; unless by collusion between the repre- sentative and the debtors, or other collateral circum- stance, a distinct ground is given for a bill for the lega- tee against the debtors. ' So a bill filed by the cred- itors of a person who was one of the residuary legatees of a testator, against the executors of the testator, the other residuary legatees, and the executrix of their debtor, was dismissed. ' * But where an agent has been employed, his prin- cipal has in many cases a right to a discovery of his transactions, and to demand the property with which he has been intrusted, or the value of it, against those with whom the agent has had dealings ; and therefore, where a merchant, who had employed a factor to sell his goods, filed a bill against the persons to whom the goods had been sold, for an account, and to be paid the money for which the goods had been sold, and which had not been paid to the factor, a demurrer was overruled. 3 So where a merchant acting upon a commission del credere became bankrupt, having sold goods of his principals for which he had not paid them, and shortly before his bankruptcy drew bills on the vendees, which he delivered to some of his creditors Alsager v. Rowley, 6 Ves. 748, and the . 624. And see Utterson v. Mair, Ver- cases there cited and referred to ; g non and others, on demurrer, 10 April, Ves. 86. 1793, 2 Ves. jr. 95 ; s. c. 4 Bro. C. C. ' 3 Madd. 159. 270. " Elmsley v. M'Aulay, 3 Bro. C. C. ' Lisset v. Reave, 2 Atk. 394. * Where one of two executors was a partner with the testator, the residuary legatees may sustain a bill against the executors for an account of the partnership transactions, although collusion between them is neither charged nor proved ; for the rule that the legatee cannot sue a debtor to the estate does not apply to a coexecutor who is a debtor to the estate. (Cropper v. Knapman, 2 Y. & C. Eq. Ex. 338.) DEMURRERS. 253 to discharge their demands, they knowing his insolv- ency, a suit by the principals was maintained against the persons who had received the bills for an account and payment of the produce. But the book-keeper of the bankrupt having been made a party, as one of the persons to whom bills had been so delivered, and having denied that fact by his answer, he was not com- pelled to answer to the rest of the bill, which, in- dependent of that fact, was, as to him; a mere bill for discovery of evidence/ VI. The plaintiff must by his bill show some claim of interest in the defendant in the subject of the suit,'' * which can make him liable to the plaintiflPs demands, or the defendant may demur. ^ Therefore, if a bill is filed to have the benefit of or to impeach an award, and the arbitrators are made parties, they may demur to the whole bill, as well to discovery as relief ;+ for the plaintiff can have no decree against them, nor can he read their answer against the other defendants. In- ' Neuman v. Godfrey, 2 Bro. C. C. fraudulent or improper conduct be 332 ; 2 Ves. jr. 457. See Att. Gen. v. charged, and the costs be prayed Skinners' Comp. 5 Madd. 173, particu- against them. See 7 Ves. 288 ; 14 Ves. larly at p. 194. But see Cookson v. 252 ; Le Texier v. Margravine of Ans- EUison, 2 Bro. C. C. 252, and the other pach, 15 Ves. 159 ; Bowles v. Stewart, subsequent cases on the necessity of i Sch. & Lefr. 209 ; lb. 227 ; i Meriv. answering fully. .See below, ch. 2, s. 2, 123. And this observation of course pt. 3. applies more strongly where the parties ' See Dowlin v. Macdougall, i Sim. may be interested, but cannot other- & Stu. 367. wise be made defendants for want of ' a Eq. Cas. Abr. 78. There are, privity. See 3 Barnard, 32 ; Doran v. however, instances in which persons Simpson, 4 Ves. 651 ; 6 Ves. 750 ; 9 not interested in the subject of dispute, Ves. 86 ; Salvidge v. Hyde, 5 Madd. may by their conduct so involve them- 138 ; s. c. I Jac. R. 151. selves in the transaction relating to it, * Steward v. E. I. Comp. 2 Vern. 280. that they may be held liable to costs ; See 14 Ves. 254 ; Goodman v. Sayers, 2 and under such circumstances it seems Jac. & W. 249. they cannot demur to the bill, if the * A mere allegation that a defendant " claims an interest " in the sub- ject-matter, without showing how or why he so claims, is not sufificient to avoid a demurrer on the ground of a want of interest. (Plumbe v. Plumbe, 4Y.&C.345.) 2-54 DEMURRERS, deed, where an award has been impeached on the ground of gross misconduct in the arbitrators, and they have been made parties to the suit, the court has gone so far as to order them to pay the costs;' and probably, therefore, in such a case a demurrer to the bill would not have been allowed. A bankrupt made party to a bill against his assignees touching his estate may demur to the relief, all his interest being trans- ferred to his assignees ;° but it seems to have been generally understood, that if any discovery is sought of his acts before he became a bankrupt, he must an- swer to that part of the bill for the sake of discovery, and to assist the plaintiff in obtaining proof, though his answer cannot be read against his assignees ; and otherwise the bankruptcy might entirely defeat justice.^ Upon the same principle it seems also to have been considered, that where a person having had an interest in the subject of a bill has assigned that interest, he may yet be compelled to answer with respect to his own acts before the assignment. It is difficult to draw a precise line between the cases in which a person having no interest may be called upon to answer for his own acts, and those in which he may demur because he has no interest in the question. Thus, where a creditor who had obtained execution against the effects of his debtor filed a bill against the debtor, against whom a commission of bankrupt had issued, and the persons claiming as assignees under the commission, charging that the ' Lingood v. Croucher, 2 Atk. 395; Vincent, 5 Madd. 48 ; Lloyd 71. Lan- Chicot V. Lequesne, 2 Ves. 315 ; and der, 5 Madd. 282 ; but, it seems, that the case of Ward v. Periam, cited lb. if fraud were charged and costs were 316 ; 1 Turn. R. 131, note ; Lord Lons- prayed against him, he could not de- dale V. Littledale, 2 Ves. jr. 451 ; 14 mur, lb. and 15 Ves. 164. See also ■; ?,i^'- , ^™g ^- Martin, 2 Ves. jr. 641. Whitworth V. Davis, i Ves. & Bea. » Upon this passage see i Ves. & 545 ; s. c. 2 Rose B. C. 116 ; Bailey v. Bea. 548, 549, 550. DEMURRERS. 255 commission was a contrivance to defeat the plaintiff's execution, and that the debtor having by permission of the plaintiff possessed part of the goods taken in execution for the purpose of sale, and instead of pay- ing the produce to the plaintiff had paid it to his as- signees, a demurrer by the alleged bankrupt, because he had no interest, and might be examined as a wit- ness, was overruled, and the -decision affirmed on rehearing.' A difference has also been taken where a person concerned in a transaction impeached on the ground of fraud has been made party to a bill for dis- covery merely ; ° or as having the custody of an instru- ment for the mutual benefit of others. ^ To prevent a demurrer a bill must in many cases not only show that the defendant has an interest in the subject, but that he is liable to the plaintiffs de- mands. * As wJiere a bill was brought upon a ground of equity by the obligee in a bond, against the heir of the obligor, alleging that the heir having assets by descent ought to satisfy the bond ; because the bill did not expressly allege that the heir was bound in the bond, although it did allege that the heir ought to pay the debt, a demurrer was allowed. ' So where a bill was brought by a lessor against an assignee touching a breach of covenant in a lease, and the covenant, as stated in the bill, appeared to be collateral, and not running with the land, did not therefore bind assigns, and was not stated by the bill expressly to bind assigns, the assignee demurred, and the demurrer was allowed.* " King V. Martin and others, 25 criminis, in support of a transaction July, 1795, rep. 2 Ves. jr. 641. impeached as fraudulent. ■' Cotton V. Luttrell, Trin. 1738 ; ' 3 Atk. 701. Bennet v. Vade, 2 Atk. 324. See above, * See Ryves w. Ryves, 3 Ves. 343. p. 253, note 3. See also Bridgman v. " Crosseing v. Honor, i Vern. 180. Green, 2 Ves. 627, 629, as to the evi- " Lord Uxbridge v. Staveland, I dence of a person charged as particeps Ves. 56. 256 DEMURRERS. VII. If for any reason founded on the substance of the case as stated in the bill, the plaintiff is not enti- tled to the relief he prays, the defendant may demur. Many of the grounds of demurrer already mentioned are perhaps referable to this head : and in every in- stance, if the case stated is such that admitting the whole bill to be true, the court ought not to give the plaintiff the relief or assistance he requires in the whole or in part, the defect thus appearing on the face of the bill is sufficient ground of demurrer.' VIII. It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation. ^ For this purpose all persons materially interested in the subject ought gen- erally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested, and that the orders of the court may be safely executed by those who are compelled to obey them, and future liti- gations may be prevented. ^ * This general rule, however, admits of many quahfi- cations. When a person who ought to be a party is out of the jurisdiction of the court,* that fact being stated in the bill, and admitted by the defendants, or ' 7 Ves. 245 ; 2 Sch. & Lefr. 638 ; 6 = 3 P. Wms. 333, 334 ; 2 Atk. 51 ; Madd. 95. -J Ves. 563 ; 12 Ves. 53 ; i Meriv. 262 ; " See Knight v. Knight, 3 P. Wms. Beaumont v. Meredith, 3 Ves. & Bea. 331. But see also Cullen v. Duke of 182 ; i Sch. & Lefr. 298. Queensbeny, 1 Bro. C. C. loi. * See Dissertation on Parties, prefixed to this edition. DEMURRERS. 257 proved at the hearing, is in most cases a sufficient reason for not bringing him before the court ; and the court will proceed without him against the other par- ties, as far as circumstances will permit.' It is usual, however, to add the name of a person out of the jurisdiction of the court as a party to the bill, so far as may be necessary to connect his case with that of the other parties ; and the bill may also pray process against him in case he should become amenable to such process; and if in fact he should become so amenable pending the suit, he ought to be brought before the court, either by issuing process against him, if process should have been prayed against him, and if not, by amending the bill for that purpose, if the state of the proceedings will admit of such amendment, or by supplemental bill if they will not.^ * If a person so out of the power of the court is required to be an active party in the execution of its decree, as where a conv^eyance by him is necessary, or if the decree ought to be pursued against him, as the foreclosure of a mortgage against the original mortgagor, or his repre- sentative or assign, the proceedings will unavoidably be to this extent defective.^ A foreign corporation, not amenable to the jurisdiction of the court falls; within this description, and a corporation in Scot- ■ I Ves. 385 ; and see Cowslad v. of the other parties, the court, it seems, Cely, Free, in Chan. 83 ; Darwent v. will act upon it. i Sch. & Lefr. 240. Walton, 2 Atk. 510 ; Williams v. Whin- ' See Haddock v. Tomlinson, 2 Sim. yates, 2 Bro. C. C. 399 ; and if the dis- & Stu. 219. position of the property be in the power ' Fell v. Brown, 2 Bro. C. C. 277 ; see above, p. 129. * Where a defendant is out of the jurisdiction, it is usual and expedient to pray that process may issue against him when he shall come within the jurisdiction, but the omission of his name in the prayer of process does not render the record defective. (Haddock v. Thomlinson, 2 Sim» & Stu. 219.) 17 258 DEMURRERS. land is considered for this purpose as a foreign cor- poration.' When the object of a suit is to charge the personal property of a deceased person with a demand, it is generally sufficient to bring before the court the person constituted by law to represent that property, and to answer all demands upon it;* and the diffi- culty of bringing before the court, in some cases, all the persons interested in the subject of a suit, has also induced the court to depart from the general rule,° where the suit is on behalf of many in the same in- terest, and all the persons answering that description cannot easily be discovered or ascertained.* Thus, a few creditors may substantiate a suit on behalf of themselves and the other creditors * of their deceased debtor, for an account and application of his assets, real as well as personal, in paymen-t of their demands ;3 and the decree being in that case applied to all the cred- itors, the other creditors may come in under it and obtain satisfaction of their demands equally with the plaintiffs in the suit ; and if they decline to do so, they will be excluded the benefit of the decree, and will yet be considered as bound by acts done under its author- ity.'* As a single creditor may sue for his demand out of personal assets, it is rather matter of convenience than of indulgence to permit such a suit by a few on ' Att. Gen. v. Baliol Coll. in Chan, cited ; and see below, p. 261, notes I 10 Dec. 1744; Lord Hardwicke, as to and 2 ; Ellison v. Bignold, 2 Jac. &W. the University of Glasgow. ^ 503 ; Manning v. Thesiger, I Sim. & " Prec. in Chan. 592; Pearson v. Stu. 106 ; Gray w. Chaplin, 2 Sim. & Stu. Belchier, 4 Ves. 627; Lloyd v. Loaring, 267. 6 Ves. 773 ; 11 Ves. 367 ; Adair v. New ' 2 Ves. 313 ; Law v. Rigby, 4 Bro. River Comp. II Ves. 429 ; Cockburn v. C. C. 60. Thompson, 16 Ves. 321 ; Beamont v. * See Good v. Blewitt, 19 Ves. 336, Meredith, 3 Ves. & Bea. 180 • Meux v. and Angell v. Haddon, I Madd. 529. Maltby, 2 Swanst. 277, and cases there * See Dissertation on Parties, prefixed to this edition. DEMURRERS. 259 behalf of all the creditors ; and it tends to prevent several suits by several creditors, which might be highly inconvenient in the administration of assets, as well as burdensome on the fund to be administered ; for if a bill be brought by a single creditor for his own debt, he may as at law gain a preference by the judgment in his favor over other creditors in the same degree, who may not have used equal diligence.' But some of a number of creditors, parties to a trust deed for payment of debts, have been permitted to sue on behalf of themselves and the other creditors named in the deed for execution of the trust,^ although one of those cre'ditors could not in that case have sued for his single demand without bringing the other cred- itors before the court. This seems to have been per- mitted purely to save expense and delay. If a great number of creditors thus specially provided for by a deed of trust, were to be made plaintiflFs, the suit would be liable to the hazard of frequent abatements ; and if many were made defendants, the same inconvenience might happen, and additional expense would unavoid- ably be incurred. By. analogy to the case of creditors, a legatee is permitted to sue on behalf of himself and other lega- tees ; * and as he might sue for his own legacy only, a suit by one on behalf of all the legatees has the same tendency to prevent inconvenience and expense as a suit by one creditor on behalf of all creditors of the ' See Att. Gen. v. Comthwaite, 2 ' Cony against Trist, i Dec. 1766 ; Cox R. 44, an instance of a bill by a Routh v. Kinder, 3 Swanst. 144, n.; single creditor. And see Haycock v. Boddy v. Kent, i Meriv. 361 ; Weld v. Heycock, 2 Gas. in Chan. 124 ,- Bedford Bonham, 2 Sim. & Stu. 91 ; Handford v. V. Leigh, Dick. 707 ; Hall v. Binney, 6 Storie, 2 Sim. & Stu. 196. Ves. 738. * See Dissertation on Parties, prefixed to this edition. 26o DEMURRERS. same fund;' but in a suit by a single legatee for his own legacy, unless the personal representative of the testator, by admitting assets for payment of the legacy, warrants an immediate personal decree against himself, by which he alone will be bound,^ the court will direct a general account of all the legacies of the same testa- tor, and payment of the legacy claimed ratably only with the other legacies, no preference being allowed amongst legatees in the administration of assets.^ When the court has pronounced a decree for an account and payment of debts or legacies under which all creditors or legatees may claim, it will restrain sub- sequent proceedings by a separate creditor or legatee, either at law or in equity, as the just administration of the assets would be greatly embarrassed by such pro- ceeding."' Where all the inhabitants of a parish had rights of common under a trust, a suit by one on behalf of him- self and the other inhabitants was admitted. ' It has been doubted whether the attorney general ought not to have been a party to that suit,^ and accordingly, on a bill filed by some of the sufferers by a fire against the trustees of a collection made for the sufferers generally, ' 6 Ves. 779 ; and see Morse v. Sad- w. Neville, 3 Bro. C. C. 365 ; 16 Ves. ler, I Cox R. 352. 328. And see I Sim. & Stu. 106. " See Boys v. Ford, 4 Madd. 40. * i Sch. & Lefr. 299, and cases cited ° To a bill by a specific or pecuniary there, in note b ; and • see Douglas v. legatee for payment, neither the resid- Clay, Dick. 393 ; Brooks v. Reynolds, nary legatees (see i Vern. 261 ; Wain- Dick. 603 ; S. C. i Bro. C. C. 183 ; Rush Wright V. Waterman, i Ves. jr. 311 ; I v. Higgs, 4 Ves. 638 ; Paxton v. Doug- Madd. 448), rior generally (see 2 Cas. in las, 8 Ves. 520 ; Terrewest v. Featherby, Chan. 124 ; and see Morse v. Sadler, I 2 Meriv. 480 ; Curre v. Bowyer, 3 Madd. Cox R. 352) any other of the legatees, 456; Farrell v. Smith, 2 Ball & B. 337; need be made parties; but on such a I Jac. R. 122; Lord i/. Wormleighton, bill by one of several residuary legatees, I Jac. R. 148. he must in general bring before the ° i Cas. in Chan. 269 ; Blackham court all the other persons interested in against The Warden and Society of the residue, after satisfaction of the Sutton Coldfield. See Att. Gen. u. creditors and the specific and pecuniary Heelis, 2 Sim. & Stu. 67. legatees. 2 Cas, in Chan. 124; Parsons ' See Att. Gen. v. Moses, 2 Madd. 294. DEMURRERS. 26 1 it was objected at the hearing, that the attorney gen- eral ought to have been a party, and that otherwise the decree would not be conclusive; and the cause was accordingly ordered to stand over for the purpose of bringing the attorney general before the court.' But where a bill was brought for distribution of private con- tributions, the objection that the attorney general was not a party was overruled.'' For the application of personal estate amongst next of kin, or amongst persons claiming under a gen- eral description, as the relations of a testator or other person, where it may be uncertain who are all the persons answering that description, a bill has been admitted by one claimant on behalf of himself and the other persons equally entitled.^ And the necessity of the case has induced the court, especially of late years, frequently to depart from the general rule, where a strict adherence to it would probably amount to a denial of justice ; and to allow a few persons to sue on behalf of great numbers having the same interest.'* * There are also other cases in which the interests of persons not parties to a suit may be in some degree ' Overall v. Peacock, 6 Dec. 1737. Leigh v. Thomas, 2 Ves. 312; Pearson See Wellbeloved v. Jones, l Sim. & Stu. v. Belchier, 4 Ves. 627 ; Lloyd v. Loar- 40. ing, 6 Ves. 773; Good v. Blewitt, 13 'Lee V. Carter, 17 Nov. 1740, MS. Ves. 397; Cockburn v. Thompson, 16 N. reported 2Atk. 84; but this point Ves. 321 ; 3 Meriv. 510; Manning v. is not noticed by Atkyns./ Nutt v. Thesiger, I Sim. & Stu. 106 ; Baldwin Brown, 20 July, 1745; Anon. 3 Atk. z/. Lawrence, 2 Sim. & Stu. 18; Grayz/. 227 ; I Sim, & Stu. 43. The attorney Chaplin, 2 Sim. & Stu. 267 ; but it seems or solicitor general is usually a neces- that, except perhaps in the common sary party to suits relating to charity cases of this kind, it is necessary to al- funds. See Wellbeloved v. Jones, l lege that the parties are too numerous Sim. & Stu. 40; and above, pp. 118, to be individually named. Weld v. Ig6. Bonham, 2 Sim. & Stu. gi ; see, how- ' See Ambl. 710 ; 1 Russ. R. 166. ever. Van Sandau v. Moore, i Russ. R. * Chancey v. May, Prec. in Chan. 441. 5g2, Finch ed. ; Gilb. 230 ; l Atk. 284 ; See Dissertation on Parties, prefixed to this edition. 262 DEMURRERS. affected, and yet the suit has been permitted to proceed without them, as a bill brought by a lord of a manor against some of the tenants, or by some of the tenants against the lord, on a question of common ; or by a parson for tithes against some of the parishioners, or by some of the parishioners against the parson, to establish a general parochial modus.' In many cases the expression that all persons in- terested in the subject must be parties to a suit, is not to be understood as extending to all persons who may be consequentially interested. Thus, in the case of a bill which may be brought by a single creditor for satisfaction of his single demand out of the assets of a deceased debtor, as before noticed, although the interest of every other unsatisfied creditor may be consequen- tially affected by the suit, yet that interest is not deemed such as to to require that the other creditors should be parties ; notwithstanding, the decree if fairly obtained will compel them to admit the demand ascertained under its authority as a just demand, to the extent allowed by the court in the administration of assets ; but they will not be bound by any account of the assets taken under such a decree. So in all cases of bills by creditors or legatees, the persons entitled to the personal assets of a deceased debtor or testator, after payment of the debts or legacies, are not deemed necessary parties, though interested to contest the de- mands of the creditors and legatees ; and if the suits be fairly conducted, they will be bound to allow the demands admitted in those suits by the court,' though 'lAtk. 283; 3'Atk. 247; Chaytor some individuals representing a numer- ■V. Trin. Coll. Anstr. 841 ; 11 Ves. 444; ous class, as against churchwardens rep- and see Adair v. New River Comp. ir resenting the parishioners in respect of Ves. 429; 16 Ves. 328; iJac.&W.sCg; a church rate, it must be alleged that 2 Swanst. 282; but it appears that the suit is brought against them in such where it is attempted to proceed against representative character. 5 Madd. 13. DEMURRERS. 263 they will not be bound by any account of the property taken in their absence.' To a bill to carry into execution the trusts of a will disposing of real estate by sale or charge of the estate, the heir at law of the testator is deemed a necessary party, that the title may be quieted against his de- mand ; * for which purpose the bill usually prays that the will may be established against him by the decree of the court; but if the testator has made a prior will containing a different disposition of the same property, and which remains uncanceled, and has not been revoked except by the subsequent will, it has not been deemed necessary to make the persons claiming under the prior will parties ; though if the subsequent will be not valid, those persons may disturb the title under it as well as the heir of the testator. If, however, the prior will is insisted upon as an effective instru- ment notwithstanding the subsequent will, the persons claiming under it may be brought before the court, to quiet the title, and protect those who may act under the orders of the court in executing the latter instru- ment.^ If no heir at law can be found, the king's attorney general is usually made a party to a bill for carrying the trusts of a devise of real estate into execution, supposing the escheat to be to the crown, if the will set up by the bill should be subject to impeachment.^ ' See the case of Bedford v. Leigh, v. Ingledew, 3 P. Wms. 91 ; Lewis v, Dick. 707. And see Lawson v. Barker, Naugle, 2 Ves. 431 ; i Ves. jr. 29. I Bro. C. C. 303 ; Wainwright v. Water- ' See the case of Att. Gen. v. Mayor man, I Ves. jr. 313 ; Brown v. Dowth- of Bristol, 3 Madd. 319 ; s. c. 2 Jac. & waite, I Madd. 448. . W. 294. ' See on the gejieral subject, Harris * See Dissertation on Parties, prefixed to this edition. 264 DEMURRERS. But if any person should claim the escheat against the crown, that person may be a necessary party. If the heir at law of a testator who has devised a real estate on trusts should be out of the jurisdiction of the court, and that fact should be charged and proved, the court will proceed to direct the execution of the trusts, upon full proof of the due execution of the will and sanity of the testator ; though that evi- dence cannot be read against the heir if he should afterwards dispute the will, and the court therefore can- not establish the will against him, or in any manner insure the title under it against his claims.' * Where real property in question is subject to an entail, it is generally sufficient to make the first person in being, in whom an estate of inheritance is vested, a party with those claiming prior interests, omitting those who may claim in remainder or reversion after such vested estate of inheritance ; ^ and a decree against the person having that estate of inheritance will bind those in remainder or reversion, though by failure of all the previous estates the estates then in remainder or reversion may afterwards vest in posses- sion.3 It has therefore been determined that a person so entitled in remainder, and afterwards becoming entitled in possession, may appeal from a decree ' See Williams v. Whinyates, 2 Bro. ham v. Gregory, i Eden R. 518 ; s. C. C. C. sqg ; and see French v. Baron, 2 3 Bro. P. C. 204, Toml. ed. Atk. 120 ; s. c. Dick. 138. ' See Lloyd v. Johnes, gVes. 37; 16 " 2 Sch. & Jvefr. 210 ; and see Anon. Ves. 326. 2 Eq. Gas. Abr. 166 ; 2 Ves. 492 ; Pel- * A decree for establishing a will and executing the trusts thereof may be impeached by an original bill by the heir at law in case he was not ser\'ed with a subpoena, though named as a party defendant to the bill in the cause in which such decree was made. He need not file a supplemental bill in that cause. (Waterton v. Croft, 6 Sim. 431.) DEMURRERS. 265 made against a person having a prior estate of inherit- ance, and cannot avoid the effect of the decree by a new bill.' Contingent limitations and executory devises to persons not in being may in like manner be bound by a decree against a person claiming a vested estate of inheritance ; but a person in being claiming under a limitation by way of executory devise, not subject to any preceding vested estate of inheritance by which it may be defeated, must be made a party to a bill affect- ing his rights.^ * If a person entitled to an interest prior in limita- tion to any estate of inheritance before the court, should be bom pending the suit, that person must be brought before the court by a supplementary proceed- ing. And if by the determination of any contingency a new interest should be acquired, not subject to de- struction by a prior vested estate of inheritance, the person having that interest must be brought before the court in like manner. And if by the death of the person having, when the suit was instituted, the first estate of inheritance, that estate should be determined, the person having the next estate of inheritance, and all the persons having prior interests, must be so brought before the court.^ Trustees of real estate for payment of debts or legacies may sustain a suit, either as plaintiffs or de- fendants, without bringing before the court the cred- itors or legatees for whom they are trustees, which in ■ Giffard v. Hort, I Sch. & Lefr. 386; 122 ; and Anion. 2 Eq. Cas. Abr. r66 ; lb. 411. Sherrit v. Birch, 3 Bro. C. C. 229. » See Handcock v. Shaen, Coll. P. C. = See 2 Sch. & Lefr. 210. * See Dissertation on Parties, prefixed to this edition. 266 DEMURRERS. many cases would be almost impossible ; and the rights of the creditors or legatees will be bound by the decis- ion of the court against the trustees.' * The interests of persons claiming under the posses- sion of a party whose title to real property is disputed, as his occupying tenants.f under leases, are not deemed necessary parties; though if he had a legal title, the title which they may have gained from him cannot be prejudiced by any decision on his rights in a court of equity in their absence ; and though if his title was equitable merely, they may be affected by a decision against that title. Sometimes, if the existence of such rights is suggested at the hearing, the decree is ex- pressly made without prejudice to those rights, or otherwise qualified according to circumstances. If therefore it is intended to conclude such rights by the same suit, the persons claiming them must be made parties to it ; and where the right is of a higher nature, as a mortgage, the person claiming it is usually made a party .° f To a suit for the execution of a trust, by or against those claiming the ultimate benefit of the trust, after the satisfaction of prior charges, it is not necessary to bring before the court the persons claiming the benefit of such prior charges ; and, therefore, to a bill for the application of a surplus paid after payment of debts and legacies, or other prior incumbrances, the credit- ' See Franco v. Franco, 3 Ves. 75 ; ^ See 2 Ves. 450. and see Curteis v. Candler, 6 Madd. 123. * In 'Harrison v. Stewardson, Sir James Wigram, V. C, observed : " It is impossible to say that the practice of the court is in conformity with this passage ; for almost the universal rule is to make legatees parties where legacies are charged on real estate." (2 Hare, 532.) t See Dissertation on Parties, prefixed to this edition. DEMURRERS. 267 ors, legatees, or other prior incumbrancers, need not be made parties.' * And persons having demands prior to the creation of such a trust may enforce those de- mands against the trustees without bringing before the court the persons interested under the trust, if the ab- solute disposition of the property is vested in the trustees.* But if the trustees have no such power of disposition, as in the case of trustees to convey to cer- tain uses, the persons claiming the benefit of the trust must also be parties. Persons having specific charges on the trust property in many cases are also necessary parties ; but this will not extend to a general trust for creditors or others whose demands are not distinctly specified in the creation of the trust, as their number, as well as the difficulty of ascertaining who may an- swer a general description, might greatly embarrass a prior claim against a trust property.^ If a debt by a covenant or obligation binding the heir of the debtor is demanded against his real assets in the hands of a devisee under the statute 3 & 4 Wm. & M. c. 14, the heir must always be a party ;3 and if any assets have descended to the heir they are first applicable, unless the assets devised are charged with debts in exoneration of the heir. The personal repre- sentative of the deceased debtor is also generally a necessary party,"* as a court of equity will first apply ' See Anon. 3 Atk. 572. trastees for the same, without making '' As to cestuis qiu trust being par- the persons claiming the other shares ties, see Kirk v. Clark, Free, in Chan, thereof parties to the suit. Smith v. 275 ; Adams v. St. Leger, i Ball & B. Snow, 3 Madd. 10* 181; Calverley v. Phelp, 6 Madd. 229 ; ' Gawler v. Wade, i P. Wms. too; Douglas V. Horsfall, 2 Sim. & Stu. 184. Warren v. Stawell, 2 Atk. 125. It may here be observed, that if the * Knight v. Knight, 3 P. Wms. 331 ; trust property be personal, and its 3 P. Wms. 350 ; 3 Atk. 406; i Eq. Gas. amount be ascertained, one entitled to Abr. 73; Lowe «/., Farlie, 2 Madd. an aliquot part thereof may sue the loi ; 2 Sim. & Stu. 292. * See Dissertation on Parties, prefixed to this edition. 268 DEMURRERS. the personal, in exoneration of the real assets.* When there has been no general personal representative, a special representative by an administration limited to the subject of the suit has been required. In other cases where a demand is made against a fund entitled to exoneration by general personal assets, if there are any such, a like limited administrator is frequently required to be brought before the court. This seems to be required rather to satisfy the court that there are no such assets to satisfy the demand : for although the limited administrator can collect no such assets by the authority under which he must act, yet as the person entitled to general administration must be cited in the ecclesiastical court before such limited administration can be obtained, and as the limited administration would be determined by a subsequent grant of general administration, it must be presume.d that there are no such assets to be collected, or a general administration would be obtained.'* The personal representative thus brought before the court must be a representative constituted in En- gland ; and although there may be personal assets in another country, and a personal representative consti- tuted there, yet as he may not be amenable to the pro- cess of the court, and those assets must be subject to administration according to the laws of that country, such a representative is not deemed a necessary party ' See the case of Glass v. Oxenham, months from the decease of the testa- 2 Atk. 121. Where probate has been tor, be obtained to defend a suit, or to granted, and the executor has subse- carry a decree into execution, by virtue quently departed out of the realm, a of stat. 38 Geo. Ill, c. 87. Rainsford special administration may, after twelve v. Taynton, 7 Ves." 460. * See Dissertation on Parties, prefixed to this edition. DEMURRERS. 269 to substantiate a demand against the real assets in England. ' * Where a claim on property in dispute would vest in the personal representative of a deceased person, and there is no general personal representative of that person, an administration limited to the subject of the suit may be necessary to enable the court to proceed to a decision on the claim ; and when a right is clearly vested as a trust term, which is required to be assigned, an administration of the effects of the deceased trustee, limited to the trust term, is necessary to warrant the decree of the court for assignment of the term. In some cases, when it has appeared at the hearing of a cause, that the personal representative of a de- ceased person, not a party to the suit, ought to be privy to the' proceedings under a decree, but that no question could arise as to the rights of such representa- tive on the hearing, the court has made a decree direct- ing proceedings before one of the masters of the court, without requiring the representative to be made a party by amendment or otherwise ; and has given leave to the parties in the suit to bring a representa- tive before the master on taking the accounts or other proceedings directed by the decree, which may con- cern the rights of such representative ; and a represent- ative thus brought before the master is considered as a party to the cause in the subsequent proceedings. ^ In most cases the person having the legal title in the subject must be a party, though he has no benefi- cial interest, that the legal right may be bound by the ' See Jauncy v. Sealey, i Vem. 397 ; " See Fletcher v. Ashburner, I Bro. and Lowe v. Farlie, 2 Madd. loi ; C. C. 497 ; I Ves. jr. 69. Logan V. Farlie, 2 Sim. & Stu. 284. * See Dissertation on Parties, prefixed to this edition. 270 DEMURRERS. decree of the court. ' Thus if a bond or judgment be assigned, the assignor as well as the assignee must be a party, for the legal right of action remains in the assignor.'' In some cases, however, it may still remain a ques- tion of considerable difficulty who are necessary parties to a suit. It may indeed be doubtful until the decision of the cause what interests may be affected by that decision ; and sometimes parties must be brought be- fore the court to litigate a question, who had, accord- ing to the decision, no interest in the subject, and as to whom therefore, whether plaintiffs or defendants, the bill may be finally dismissed, though the court may make a decree on the subject as between other parties, which will be conclusive on the persons as to whom the bill may be so dismissed, but which the court would not pronounce in their absence, if amenable to its jurisdiction. Sometimes, too, a plaintiff, by waiving a particular claim, may avoid the necessity of making parties who might be affected by it, though that claim might be an evident consequence of the rights asserted by the bill against other parties. This, however, cannot be done to the prejudice 6f others. Whenever a want of parties appears on the face of a bill, the want of proper parties is a cause of demur- rer.3 But if a sufficient reason for not bringing a nec- ' As to the case of a trastee, see ' Clark v. Lord Angier, i Gas. in Prec. in Chan. 275; 3 Barnard, 325; Chan. 41 ; Nels. R. 78, 93; Astley z/. Burt V, Dennet, 2 JBro. C. C. 225 ; 7 Ves. Fountaine, Finch R. 4 ; Weston v. II ; Cholmondeley v. Clinton, 2 Meriv. Keighley, Finch R. 82 ; Atvvood v. 71- Hawkins, Finch R. 113 ; Galle v. ' See Cathcart v. Lewis, I Ves. jr. Greenhill, Finch R. 202 ; 3 P. Wms. 463; but see Brace v. Harrington, 2 311, note; Knight v. Knight, 3 P. Atk. 235 ; and Blake v. Jones, 3 Anstr. Wms. 331 ; 2 Atk. 570 ; I Eq. Gas. 651. See also Ryan v. Anderson, 3 Abr. 72; 2 Eq. Cas. Abr. 165; Gock- Madd. 174 ; Edney v. Jewell, 6 Madd. burn v. Thompson, 16 Ves. 321 ; Cook 165 ; 2 Sim. & Stu. 253. v. Butt, 6 Madd. 53 ; Weld v. Bonham, DEMURRERS. 271 essary party before the court is suggested by the bill,* as if a personal representative is a necessary party, and the representation is charged to be in litigation in the ecclesiastical court ; ' or if the bill seeks a discovery of the parties interested in the matter in question for the purpose of making them parties, and charging that they are unknown to the plaintiff, a demurrer for want of the necessary parties will not hold." A demurrer for want of parties must show who are the proper parties : not indeed by name, for that might be impossible, but in such manner as to point out to the plaintiff the objection to his bill, and enable him to amend by adding the proper parties.^ f In case of a demurrer for want of parties, the court has per- mitted the plaintiff to amend, when the demurrer has been held good upon argument.-* IX. The court will not permit a plaintiff to de- mand, by one bill, several matters of different natures against several defendants ; ^ for this would tend to load each defendant with an unnecessary burden of costs, by swelling the pleadings with the state of the several , claims of the other defendants, with, which 2 Sim. & Stu. 91; Gray v. Chaplin, 2 ' 2 Atk. 51 ; and see Jones v. Frost, Sim. & Stu. 267 ; Maule v. Duke of 3 Madd. i. Beaufort, l Russ. R. 349. Queere, '' Bowyer v. Covert, i Vern. 95 ; whether a demurrer for want of parties Heath v. Percival, i P. Wms. 682, 684. should be to the whole bill. See E. I. ^ Upon this subject see 6 Ves. 781 ; Company v. Coles, reported 3 Swanst. 11 Ves. 369 ; 16 Ves. 325 ; 3 Madd. 62. 142, note ; and see the cases of Atwood ^ Bressenden v. Decreets, 2 Cas. in V. Hawkins, Finch R. 113; Astley z/. Chan. 197. Fountaine, Finch R. 4 ; and Bressen- ' See 5 Madd. 146. den V. Decreets, 2 Cas. in Can, 197, cited 3 Swanst. 144, note. "* In order to dispense with making a person a defendant, it is not suf- ficient to allege that he absconded a year before the bill was filed ; for he might have returned before the filing of the bill, (Penfold v. Nunn, 5 Sim, 405,) t Lund V. Blanshard, 4 Hare, 23. 272 DEMURRERS. he has no connection. A defendant may therefore demur because the plaintiff demands several matters of different natures of several defendants by the same bill.' But as the defendants may combine together to defraud the plaintiff of his rights, and such a combina- tion is usually charged by a bill, it has been held that the defendant must so far answer the bill as to deny combination.' In this, however, the defendant must be cautious ; for if the answer goes farther than merely to deny combination, it will overrule the demurrer.^ * A demurrer of this kind will hold only where the plaintiff claims several matters of different natures; but when one general right is claimed by the bill, though the defendant have separate and distinct rights, a demurrer will not hold.-* As where a person claim- ing a general right to the sole fishery of a river, filed a bill against several persons claiming several rights in the fishery, as lords of manors, occupiers of j.ands, or otherwise.^ For in this case the plaintiff did not claim several separate and distinct rights, in opposition to several separate and distinct rights claimed by the de- fendants ; but he claimed one general and entire right, ■ Berke v. Harris, Hardr. 337. And usual general charge of combination, as late instances of demurrers for mul- seems now to have been oTerruled. tifariousness, see Ward v. Cooke, 5 Brooks v. Lord Whitworth, I Madd. Madd. 122 ; Salvidge v. Hyde, 5 Madd. 86 ; Salvidge v. Hyde, 5 Madd. 138. 138; s. c. I Jac. R. 153; Turner v. And the ultimate decision in the latter Doubleday, 6 Madd. 94 ; Exeter Coll. case, upon appeal, reversing the former, V. Rowland, 6 Madd. 94 ; Kaye v. does not appear to have had any refer- Moore, i Sim. & Stu. 61 ; Dew v. ence to that proposition. S. C. I Jac. Clarke, I Sim. & Stu. 108 ; Turner v. 151. Robinson, I Sim. & Stu. 313 ; and ' Hester v. Westcnj I Vern. 463. Shackell v. Macaulay, 2 Sim. & Stu. 79. * See the cases cited above, pp. 238. ' Powell V. Arderne, I Vern. 416. 239. And see Buccle v. Atloe, 2 Vern. As to the interpretation to be put upon 37. As to cases of infringement of this passage, see 8 Ves. 527 ; and as to copyrights and patents, see Dilly v. general charge of combination, see sup. Doig, 2 Ves. jr. 486. PP- 135-36- The proposition in the text, 'Mayor of York v. Pilkington, I however, so far as it may apply to the Atk. 282. * See note * to p. 305, DEMURRERS. 273 though set in opposition to a variety of distinct rights claimed by the several defendants. So where a lord of a manor filed a bill against more than thirty tenants of the manor, freeholders, copyholders, and lease- holders, who owed rents to the lord, but had confused the boundaries of their several tenements, praying a commission to ascertain the boundaries; and it was objected at the hearing that the suit was improper, as it brought before the court many parties having dis- tinct interests ; it was answered that the lord claimed one general right, for the assertion of which it was necessary to ascertain the several tenements, and a decree was made accordingly.' * "Magdalen Coll. against Athill and the distinctions taken in Berke v. Har- others, at the Rolls, 26 Nov. 1753. See ris, Hardr. 337. * Cases where a bill is multifarious. — It is not allowable to unite in the same information an application as to abuses in a school with an application as to abuses in a college, though the latter are abuses in rela- tion to estates given to the college for the benefit of five scholars from the school ; for the school and the college are distinct foundations, and one defense cannot be made as to the abuses in both. (Attorney General v^ St. John's College, 7 Sim. 241.) Two or more distinct matters cannot be included in the same suit, where it does not clearly appear that they are homogeneous, with the ex- ception of minute differences, even in the case of a sole plaintiff and a sole defendant. So that where an information, after stating a will by which property was given to a city company, for the purpose of making loans to young men free of the company, to assist them in trade and otherwise, alleges that divers other donations and bequests have been made to the company for the purpose of making loans to young men (generally and without restriction) for their advancement in business and life, and it prays relief in respect of the first mentioned and such other gifts and be- quests, it is multifarious. (Attorney General v. The Goldsmiths' Company, S Sim. 670.) If a person, who is the personal representative both of a testator and of the testator's residuary devisee and legatee, files a bill against an agent for an account of the rents of the real estate and of the personal estate, re- 18 2 74 DEMURRERS. As the court will not permit the plaintiff to de- mand by one bill several matters of different natures ceived by such agent since the testator's death, the bill is multifarious. (Weeks -v. Pitt, lo Law J. [N. S.] Ch. Rep. 5.) And so where the heir, who is also one of the next of kin of an intes- tate, joins with the other next of kin in a bill against the administratrix, who has entered into possession of the real estate, as well as the personalty, for an account of the intestate's real and personal estates, the bill is de- murrable for multifariousness. (Dunn v. Dunn, 2 Sim. 329 ; see also Maud V. Aclom, lb. 331.) The union of an equitable ejectment bill against one person, and a bill to redeem against another person, is multifarious. (Plumbe v. Plumbe, 4 Y. & C. Eq. Ex. 345.) A bill for a discovery and a commission or commissions to examine witnesses in aid of the defense to two separate actions for two separate libels, is multifarious and demurrable ; for if the same commission or com- missions were to furnish the defense fdr both actions, the plaintiff at law would be delayed from proceeding in either of the actions until the defend- ants were prepared for their defense in both. (Shackell v. Macaulay, 2 Sim. & Stu. 79.) If a vendor files a bill against a purchaser for a specific performance of the purchase contract, and in the same bill prays that another defend- ant, who has agreed- with the vendor to execute a release in order to perfect the title, may be decreed to execute such release, the bill is multi- farious ; for the purchaser ought not to be harassed with a distinct agree- ment between the vendor and a third person, although such agreement was designed to be subservient to the performance of the purchase contract. (Reynolds v. Johnston, 7 Law J. [O. S.] Ch. Rep. 45.) A bill for an account of a testator's estate, and also to set aside sales made by the executor and trustee to himself and another person, is multi- farious. ' (Salvidge v. Hyde, Jac. 151.) A bill both for the administration of general personal estate and for the redemption of a mortgage is multifarious. (Pearse v. Hewitt, 7 Sim. 471 ■) If to a foreclosure suit, a third person, who has some interest in the equity of redemption, is made a party, and in a bill of revivor supple- mental matter is introduced, with reference to a lien claimed by the mort- gagor on land in the mortgagee's possession which was allotted to the mortgagor in respect of the mortgaged premises, such a bill is multi- farious as regards such third person. (Lloyd v. Douglas, 4 Y. & C. Eq. Ex. 448.) Where a bill is not sustainable as a bill of interpleader, and it mixes up DEMURRERS. 275 against several defendants, so it will not permit a bill to be brought for part of a matter only; but distinct claims of differtnt defendants, although connected with the same subject-matter, it is multifarious. (Bignold v. Audland, 11 Sim. 24.) A bill praying for a declaration that a person to whose nominee two debts due to different creditors have been assigned may be declared a trustee of such debts for another party, and may be«restrained from pro- ceeding at law upon judgments obtained for them, is demurrable for multi- fariousness. (Miller v. Walker, 9 Jur. 107.) A bill for an account of agencies with two different firms, though carry- ing on the same concern, and only different by reason of a change of some of the partners, is multifarious, if the allegations of the bill are such that, when taken most strongly against the plaintiff, they show that the dealings with the two firms were separate transactions. (Benson v, Hadfield, 5 Beav. 546.) Where a person makes a shipment of goods on account of another, and advances money to him upon the goods, and afterwards the same person and his partner make other shipments of goods on account of such other party and his partner, and advance money to them upon those goods ; and the proceeds of all the shipments are remitted to another firm ; and the surviving partners of that firm file a bill of interpleader against the assignees of the person who made the first shipment and his partner, and the assignees of the person on whose account the first shipment was made and his part- ner, and pay the balance of all the remittances into court, as one balance ; and the assignees of the person who made the first shipment and his part- ner file a bill against the surviving partners of the firm to whom the remit- tances were made, and against the assignees of the person on whose account the first shipment was made and his partner, for an account of what is due to the person by whom the first shipment was made, and also of what is due to him and his partner on account of their advances ; the suit is multifarious ; because the first transaction between two persons, when alone, ought not to be mixed up with the transactions between the same persons after each had entered into partnership with another person. (Miller ^/. Crawford, 9 Law J. [O. S.] Ch. R. 193, L. C.) Cases where a bill is not multifarious. — It does not follow, as a neces- sary consequence, that in every case in which a bill is multifarious as to one defendant, it is multifarious as to the rest. (Att. Gen. v. Cradock, 8 Sim. 467.) Where a case is an entire case as against one defendant, the court will not attach weight to the objection that another defendant is connected only with some portion of the whole case : for, in order to obviate this objec- tion, it would be necessary to split an entire case. And hence where a bond is improperly given to a person by a corporation, and a rate is im- 276 DEMURRERS, to prevent the splitting of causes, and consequent multiplicity of suits, will allow a demurrer upon this ground." ' I Vera, 29 ; Edgworth v. Swift, 4 Bro. P. C. 654, ,Toml. ed. See above, pp. 238, 239. posed to provide a fund to meet the demand upon the bond, an informa- tion seeking protection against both the bond and the rate is not multifari- ous : for as the illegality of the bond creates an illegality in the rate, there is an entire case as against the corporation : and though the obligee has nothing to do with the rate, but only with the bond, yet the information is not multifarious as to him, (Att. Gen. v. Parr, 8 CI. & Fin. 409.) Several charitable trusts, especially if the property is small, may be comprised in one information, where one and the same party is proceeded against (such as a city company), and where the several trusts, though created by different persons, and at different times, have all a common subject-matter (such as moneys given in trust to be lent), and where the persons beneficially interested in the trusts belong to the same body (as, for instance, to the company proceeded against), although very different descriptions of persons among that body are respectively the objects of the respective charities. (Att. Gen. v. Merchant Tailors' Company, i M. & K. 189.) Where an information is filed against the trustees of certain charities, and against a person who, in concert with one of the trustees, has effected an exchange of property in which they were jointly interested for a portion of the charity estate, and such information alleges that such exchange is fraudulent, and that the charity estate has been improperly managed by the trustees, and prays a general account, and a scheme, and that the ex- change may be set aside ; a demurrer for multifariousness, put in by the party who had colluded with the trustee in the exchange, will be overruled. (Att. Gen. v. Cradock, 3 My. & Cr. 85.) Where executors have possessed themselves of the rents and profits of real estate and personal estate devised and bequeathed to different parties, and have blended both together, so that they cannot be distinguished, a bill filed against the executors and the persons interested in the personal estate and the rents and profits of the real estate, for an account of both, is not demurrable for multifariousness or misjoinder. (Sanders v. Kelsey, 10 Jur. 833.) The administration of the real and personal estates of two deceased partners, towards the payment of their joint and separate debts, may be comprised in one suit ; for the rule is, that the joint estate must first be applied in payment of the joint debts, and then the surplus of the separate estate of each partner which may remain after payment of the separate DEMURRERS. 277 A discovery being compelled upon a bill praying relief, for the purpose of enabling the plaintiff to debts of that partner is contributable to supply the deficiency of the joint estate to pay the joint debts. And those who are interested in the surplus of the separate estate of one partner ought to be present to a suit insti- tuted for the purpose of ascertaining what is the surplus of the separate estate of another partner. (Brown -v. Douglas, 1 1 Sim. 283 ; Brown v. Weatherby, 12 Sim. 6.) Where an action is brought by an administrator of an intestate'against the executors of the widow of the intestate, who had possessed assets without having taken out administration, for moneys alleged to be due to the intestate's estate ; and the executors of the widow and the children of the intestate file a bill against his administrator, for an account both of the estate of the intestate and of the estate of the widow, and of what is due from the former estate to the latter, and for an injunction to restrain the action, the bill is not multifarious ; for in such case the court cannot ad- minister rehef without taking the accounts of both estates. (Lewis v. Edmund, 6 Sim. 251.) Where a policy of insurance is underwritten by Lloyd's underwriters, and another policy is effected by the same party with the corporation of the London Assurance, these bodies of underwriters may join in one bill against the assured. (Mills v. Campbell, 2 Y. & C. Eq. Ex. 391.) Where a bill is filed by the drawer and acceptor of four bills of ex- change, against a person to whom they had been delivered for the purpose of being discounted, and against his indorsees, and against subsequent indorsees who are the holders of the bills, praying for a delivery up of the bills on the ground of a fraud to which all the defendants were privy, such a bill is not multifarious. (Lord Foley v. Carlon, i Younge, 373-) If a bill is filed by two executors for afi account of assets received by an ageiit, and for the performance of an agreement for a set-off of such assets against moneys lent by him to them individually on their respective separate accounts, and for an injunction to restrain an action brought after notice of such agreement, by indorsees of promissory notes given by them for the moneys so lent, the bill is not multifarious, nor is there a misjoinder of plaintiffs. (Davis v. Cripps, 2 Y. & C. Chan. Cas. 430.) Where the executors of a testator refuse to file a bill to have a testator's estate recouped out of a fund in court, in respect of a debt paid out of that estate, which ouglit to have been paid out of such fund, and there are no assets of the testator reinaining for payment of a judgment creditor and of a mortgagee whose mortgage debt has priority over the judgment debt ; the judgment creditor may, without any objection on the ground of multi- fariousness, file a bill to have the testator's estate recouped, and the mort- 278 DEMURRERS. obtain that relief, the discovery is in general inci- dental to the relief, ' and a demurrer to the relief con- ' I Sim. & Stu. 93. gage and judgment debts paid out of the sum as to which the estate of the testator is sought to be so recouped ; and for that purpose the mortgagee and the party interested in the fund above mentioned, as well as the exec- utors, are proper parties. (Lancaster v. Evors, 4 Beav. 1 58.) A bill to restrain commissioners under an act of parliament from pav- ing one part and draining another part of the same plot of ground, is not multifarious. (Birley v. The Constables, &c. of Charlton-upon-Medlock, 3 Beav. 499.) Where, by a deed executed before marriage, a husband vests a fund in two trustees, upon trust for his wife for life, and after her decease, for the benefit of the children of the marriage, with a proviso that the persons to be appointed guardians by his will, with the trustees, shall after the decease of his wife, have authority to apply the interest and part of the capital for the maintenance and advancement of the children ; and by another deed, after marriage, he vests another fund in two other trustees, upon similar trusts, with. a similar proviso ; and by his will, after some specific bequests to his wife, he bequeaths his property to three of the trustees of the deeds, upon certain trusts, for the benefit of his children, and appoints them executors and guardians of his infant children ; and the wife and children file a bill against the four trustees for a performance of the trusts of the deeds, and for an account of the personal estate and debts, and an admin- istration of the property ; a demurrer by the three trustees appointed guardians, put in on the ground of multifariousness, will be overruled, for therels a common interest in all the plaintiffs under all the instruments ; and all the defendants are accounting parties, though they are not all parties to all the instruments ; and the three demurring defendants have all an interest, not only Under the will, but also under the deeds, by force of the provisos therein contained. (Campbell v. Mackay, i My. & Cr. 602.) ^ Where third parties have been implicated in what they knew to be a misapplication of the funds of a joint stock company, they may be made defendants to a bill by some of the shareholders of the company, al- though the bill, besides seeking relief against such third parties, prays also for the general administration of the assets of the company. (Lund V. Blanshard, 4 Hare, 9.) In the case in which this point arose, the company was a banking company, and the third party was another bank- ing company. If a cestui que trust of a sum of money covenanted to be settled seeks payment thereof out of the assets of the covenantor, and for a general DEMURRERS. 279 sequently extends to the discovery likewise.' * But as the court entertains a jurisdiction in certain, cases for ' See Baker J/. Mellish, 10 Ves. 544; general demurrer would perhaps be 3 Meriv. 502. It may happen, how- overruled. See Brandon v. Sancls, 2 ever, that the relief sought may be con- Ves. jr. 514; Brandon v. Johnson, lb. sequential to discovery to which the 517. plaintiff is entitled, in which case a administration of his personal estate for that purpose, if assets be not admitted, and also seeks to impeach a prior security claimed over the whole of the covenantor's property by one of the trustees of the settlement ; a demurrer by him for multifariousness in the usual form is bad, because all the matters may come into consideration in the course of taking the ac- count, and therefore are not "distinct," and the defendant trustee is "in- terested " in the account as trustee. (Addison v. Walker, 4 Y. & C. Eq. Ex. 442.) A bill Is not multifarious because it seeks to enforce one remedy against one defendant, and another remedy, in addition to that remedy, against another defendant. (Manners v. Rov^rley, 10 Sim. 470.) Right mode of taking the objection of multifariousness. — In a case where defendant demurred to a bill for multifariousness, and it was then amended so as to preclude a demurrer on that ground, but he insisted on the same objection in his answer to the amended bill. Sir J. Wigram, V. C, said, " It would certainly be most unjust if a plaintiff could compel a de- fendant to continue a party to a multifarious record, merely by inserting false allegations in the bill. A plea that a bill is multifarious is a defense I have never seen, though I know such a plea has, whether successfully or not, been attempted. * * * In what form this objection may be success- fully taken or resisted, according to the strict mode of pleading, I aeed not now inquire." But the learned judge added, " The objection of multifari- ousness is one which should be taken in limine. * * * The defendant may be subjected to the expense of taking copies of papers relating to matters with which he has no concern, and be kept before the court on the discus- sion of points in which he is not interested. If the defendant does not take the objection in limine, the court, considering the mischief as already in- curred, does not, except in a special case, allow it to prevail at the hearing. All that the court, in this case, can do, is to protect the defendant from the costs incurred, if it should hereafter appear he has been improperly sub- jected to costs." (Benson v. Hadfield, 4 Hare, 39, 40.) * A demurrer to the specific relief prayed will not extend to the dis- covery sought, where the bill states a clear case for other relief, which can be given under the prayer for general relief, and to which the discovery sought may be ancillary. (Deare v. Attorney General, i Y. & C. Eq. Ex. I97-) 28o DEMURRERS. the mere purpose of compelling a discovery, without administering any relief, it was formerly conceived that though a plaintiff prayed by his bill relief to which he was not entitled, he might yet show a title to a dis- covery ; and therefore, though a demurrer might hold to the relief, the defendant might notwithstanding be compellable to answer to the discovery, the bill being then considered as in effect a bill for a discovery merely/ This, however, has since been determined otherwise;^ and where a plaintiff entitled to a dis- covery added to his bill a prayer for relief, ^ a demurrer has been allowed.* And where a defendant had de- murred to the discovery sought by a bill, /or want of title in the plaintiff .to require the discovery, but had oniitted to demur to the relief prayed, to which that discovery was merely incidental, it was conceived the demurrer must, in point of form, be overruled ; for the demurrer, applying to the discovery only, admitted the title to relief, and consequently admitted the title to the discovery, which was only incidental to the relief ' But though a plaintiff may be entitled to the relief he prays, there may yet be reasons to induce a court of equity- to forbear compelling a discovery." ' See Fry v. Penn, 2 Bro. C. C. 280. a plaintiff in a doubtful case to frame "^ See Price v. James, 2 Bro. C. C. his bill for a discovery only in the first 319. instance; and, having obtained it, by ° It is presumed, that in order to amending his bill to try the question the defendant being thus able by de- whether he is also entitled to relief; murrer wholly to protect himself against which was formerly a frequent practice, the interference of the court, it must and possibly a greater inconvenience, appear from the manner in which the ' Morgan v. Harris, in Chan. 31 Oct. plaintiff states his case that he seeks 1786, reported 2 Bro. C. C. 121 ; War- the discovery as incidental to the relief, ing v. Mackreth, Forrest, 129. See cases in the next note. " A plaintiff may be entitled to rehef * CoUis V. Swayne, 4 Bro. C. C. 480 ; in equity, independently of the discov- Loker v. RoUe, 3 Ves. 4; Ryves v. ery. i Swanst. 294. And there may Ry ves, 3 Ves. 343 ; 6 Ves. 63 ; 6 Ves. be instances In which a defendant, 686 ; 8 Ves. 3 ; Gordon v. Simpkinson, although he should think proper to II Ves. 509; 17 Ves. 216; i Ves. &Bea. give the discovery, may yet demur to 539 ; 2 Ves. & Bea. 328 ; Jones w. Jones, the relief. 2 Atk. 157; Hodgkin w. 3 Meriv. 161 ; 3 Meriv. 502. This may Longden, 8 Ves. 2 ; Todd v. Gee, 17 probably have the effect of compelling Ves. 273. DEMURRERS. 28 1 It remains therefore to consider the objections to a bill which are causes of demurrer to discovery only. These are : I. That the case made by the bill is not such in which a court of equity assumes a jurisdiction to compel a discovery ; II. Thai the plaintiff has no interest in the subject, or no interest which entitles him to call on the defendant for a discovery ; III. That the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the purpose of discovery ; IV. Although both plaintiff and defendant may have an interest in the subject, yet that there is not that privity of title between them which gives the plaintiff a right to the discovery required by his bill ; V. That the discovery if obtained cannot be material ; and, VI. That the situation of the defendant renders it improper for a court of equity to compel a discovery.* I. Where a bill prays relief, the discovery, if ma- terial to the relief, being incidental to it, a plaintiff showing a title to relief also shows a case in which a court of equity will compel a discoveiy, unless some circumstance in the situation of the defendant renders it improper. But where the bill is a bill of discovery merely, it is necessary for the plaintiff to show by his bill a case in which a court qf equity will assume a jurisdiction for the mere purpose of compelling a dis- covery. This jurisdiction is exercised to assist the * To a bill by legatees, whose legacies are charged on real estate, charging that the testator was tenant in fee simple, and not tenant in tail, of such real estate, as alleged by the defendant, or that only a small portion thereof was entailed, and seeking for a discovery and production of the deed of entail, a demurrer on the ground that it relates to the defendant's title will be allowed. (Wilson v. Forster, i Younge, 281.) On the subject of discovery, the reader is referred to the learned works of Sir James Wigram and Mr. Hare. 282 DEMURRERS. administration of justice in the prosecution or defense of some other suit, either in the court itself or in some other court.' Where the object of a bill is to obtain a discovery to aid the prosecution or defense of a suit in the court itself, as l^he court has already jurisdiction of the subject, to state the suit depending is sufficient to give the court jurisdiction upon the bill of dis- covery. But if a bill is brought to aid, by a discovery, the prosecution or defense of any proceeding not merely civil in any other court, as an indictment or information, a court of equity will not exercise its jurisdiction to compel a discovery, and the defendant may demur.'' And in the case of suits merely civil in a court of ordinary jurisdiction, if that court can itself compel the discovery required, a court of equity will not interfere.3 Therefore, where a bill was filed for a discovery of the value of the respective real and per- sonal estates of the inhabitants of a parish in which a church rate had been assessed, and of the applica- tion of the money collected, a demurrer was allowed ; because the ecclesiastical court, to which the ordinary jurisdiction belonged, was capable of compelling the discoveiy.* ' See Moodalay v. Moreton, Dick. " 2 Ves. 398 ; and see Thorpe v. 652; s. c. I Bro. C. C. 469; Bishop of Macauley, 5 Madd. 218; Shackell v. London v. Fytche, 1 Bro. C. C. 96 ; Macaulay, 2 Sim. & Stu. 79. Cardale v. Watkins, 5 Madd. 18. A =1 Atk. 288 ; I Ves. 205 ; Anon. 2 discovery has been compelled to aid the Ves. 451. jurisdiction of a foreign court. Crowe * Dunn v. Coates, I Atk. 288. and others against Del Ris and Vallego, in Chan, nth July, 1769.* * In Bent v. Young, 9 Sim. 191, 192, Sir L. Shadwell, V. C, observed that the demurrer in this case was a speaking demurrer, and that the Lord Chancellor may very probably have overruled the demurrer on that ground, without at all entering into the consideration of the question whether the court will enforce discovery in aid of proceedings in a foreign court. (See I Paige, 287.) DEMURRERS. 283 II. A bill must show an interest in the plaintiflf in the subject to which the required discovery relates,' and such an interest as entitles him to call on the defendant for the discovery. Therefore, where a plaintiff filed a bill for a discover}' merely, to support an action which he alleged by his bill he intended to commence in a court of common law, although by this allegation he brought his case within the jurisdiction of a court of equity to compel a discovery, yet the court being of opinion that the case stated by the bill was not such as would support an action, a demurrer was allowed ; =" for unless the plaintiff had a title to recover in an action at law, supposing his case to be true, he had no title to the assistance of a court of equity to obtain from the confession of the defendant evidence of the truth of the case.^ And upon a bill filed by a creditor, alleging that he had obtained judg- ment against his debtor, and that the defendant, to deprive him of the benefit of his judgment, had got into his hands goods of the debtor under pretense of a. debt due to himself, and praying a discovery of the goods ; the defendant demurred, because the plaintiff had not alleged that he had sued out execution, and because until he had so done, the goods were not bound by the judgment, and consequently the plaintiff had no title to the discovery ; and the demurrer waS allowed.* III. Unless a defendant has some interest in the subject, he may be examined as a witness, and there- " Ramere v. Rawlins, Rep. temp. Lord Kensington v. Mansell, 13 Ves. jr. Finch, 36 ; Newman v. Holder, lb. 44; 240. and see 2 Ves. 247 ; Northleigh v. Lus- ' See The Mayor of London v. Levy, combe, Ambl. 612 ; and see Wright v. 8 Ves. 398. Plumtvee, 3 Madd. 481. ' Angell v. Draper, i Vem. 399. '' Debbieg and Lord Howe, in Chan. But see Taylor v. Hill, I Eq. Cas. Abr. Hil. 1782, cited 3 Bro. C. C. 155 ; Wal- 132. lis V. Duke of Portland, 3 Ves. 494 ; 284 DEMURRERS. fore cannot in general be compelled to answer a bill for a discovery ; ' * for such a bill can only be to gain evidence, and the answer of the defendant cannot be read against any other person, not even against another defendant to the same bill'' But if the bill states that the defendant has or claims an interest, a demurrer, which admits the bill to be true, of course will not hold,3 though the defendant has no interest ; and he can then only avoid answering the bill by plea or dis- claimer. There seems to be an exception to the rule in the case of a corporation ; for as a corporation can answer no otherwise than under their common seal, and therefore, though they answer falsely, there is no reanedy against them for perjury, it has been usual, where a discovery of entries in the books of the corpo- ration, or of any act done by the corporation, has been necessary, to make their secretary or book-keeper or other officer a party ;'* and a demurrer, because the bill showed no claim of interest in the defendant, has been in such case overruled.^ So where bills have been filed to impeach deeds on the ground of fraud, attorneys who have prepared the deeds, and other persons con- cerned in obtaining them, have been frequently made defendants, as parties to the fraud complained of, for the purpose of obtaining a full discovery ; and no case appears in the books of a demurrer by such a party, because he had no claim of interest in the matter in ' steward v. E. I. Company, 2 Vem. " i Ves. 426. 380; Dineley v. Dineley, 2Atk. 394; * Anon, i Vem. 117. Plummer v. May, i Ves. 426 ; i Ves. jr. ' Wych v. Meal, 3 P. Wms. 310 ; 7 294, note e \ Fentcn v. Hughes, 7 Ves. Ves. jr. 289 ; 14 Ves. 252 et seq. ; Gib- 287; 14 Ves. 252; How V. Best, 5 bons v. Waterloo Bridge Company, 5 Madd. 19. Pri. Ex. R, 491. " 2 Vem. 380; 3 P. Wms. 311, and lb, note h. ■ Jones V. Maund, 3 Y. & C. Eq. Ex. 347. DEMURRERS. 285 question by the bill. Indeed an attorney under such circumstances, being brought as a party to the suit to a hearing, has been ordered to pay costs ; ' apparently on the same ground as costs were awarded against arbitrators in the cases of their misconduct before noticed." IV. Although both plaintiff and defendant may have an interest in the subject to which the discovery required is supposed to relate, yet there may not be that privity of title between them which can give the plaintiff a right to the discovery. Thus where a bill was filed by a person claiming to be lord of a manor, against another person also claiming to be lord of the same manor, and praying, amongst other things, a dis- covery in what manner the defendant derived title to the manor, the defendant demurred, because the plaint- iff had shown no right to the discovery, and the de- murrer was allowed.3 So where a bill was filed by a person claiming un- der a grant from the duchy of Lancaster, to be bailiff of a liberty within the duchy, with a right to all waifs estrays and other casualties within the liberty, and all fees and perquisites respecting the same, against the owner of an inn in the liberty, and his tenants, alleg- ing that the inn-yard had been used as a common pound within the liberty for all waifs and strays and casualties ; and that the tenant, under demise from the owner, had seized and taken all waifs and strays and other casualties ; and received the fees and perquisites thereon ; and required the owner to discover how he derived title thereto, and what leases or demises he had made thereof; a demurrer to the discovery was al- ■ Bennet v. Vade, 2 Atk. 324; l Sch. ' Vide supra, p. 254- & Lefr. 227 ; Fenwigk v. Reed, l Meriv. ' Adderley and Sparrow, in Chan. II. Hil. 1779. 286 DEMURRERS, lowed.' In general, where the title of the defendant is not in privity, but inconsistent with the title made by the plaintiff, the defendant is not bound to dis- cover the evidence of the title under which he claims.' And therefore, on a bill filed by an heir ex parte ma- terna against a general devisee and executor, who had completed by conveyance to himself a purchase of real estate contracted for by the testator after the date of his will, alleging that there was no heir ex parte pa- terna, but that the devisee set up a title under a release from his father as heir ex parte paterna of the testator, and praying a conveyance to the plaintiff, and seeking a discovery in what manner the father claimed to be heir ex parte paterna, and the particulars of the pedigree under which he claimed, a demurrer to that discovery was allowed.^ V. As the object of the court in compelling a dis- covery is either to enable itself or some other court to decide on matters in dispute between the parties, the discovery sought must be material, either to the relief prayed by the bill, or to some other suit actually in- stituted, or capable of being instituted.* If therefore ' Ritson V. Sir John Danvers, in See also Ritson v. Sir John Danvers Duchy C. of Lancaster, 28 Oct. 1787, 24 Nov. 1790, on demurrer to an by the Chancellor, assisted by Lord amended bill, Baron Thomson assist- Loughborough and Mr. Justice Wilson, ing the Chancellor; and Att. Gen. ». The cases of Sparrow v. Adderley, Sir John Danvers, 25 Jan. 1792 ; Grose, Hungerford v. Goreing, 2 Vem. 38 ; J. and Thomson B. assisting. ' Stapleton v. Sherrard, i Vern. 212; 'Stroud v. Deacon, I Ves. 37 ; Bu- Sherbone v. Clerk, i Vern. 273, and den v. Dore, 2 Ves. 445 ; Sampson v. Welby and D. of Rutland, 2 Bro. P. C. Swettenham, 5 Madd. 16 ; Tyler v. 39, Toml. ed. vi^ere cited; and Lord Drayton, 2 Sim. & Stu. 309, and the Loughborough mentioned a case of Sir cases therein cited; and see Chamber- William Wake and Conyers before lain v. Knapp, I Atk. 52. Lord Northington. See also Corpora- = Ivy v. Kekewich, in Ch. 27th July, tion of Dartmouth against Seale, in 1795, rep. 2 Ves. jr. 679. Chan. 18 Dec. 1717, rep. i Cox R. 416. * A bill may be sustained for a discovery in aid of an action at law, and for an injunction to restrain the defendants at law in the mean time DEMURRERS. 28? the plaintiff does not show by his bill such a case as renders the discovery which he seeks material to the rehef, if he prays relief, or does not show a title to sue the defendant in some other court,' or that he is actu- ally involved in litigation with the defendant, or liable to be so, and does not also show that the discovery which he prays is material to enable him to support or ' defend a suit, he shows no title to the discovery, and consequently a demurrer will hold." * Therefore where a bill filed by a mortgagor against a mortgagee to re- deem, sought a discovery whether the mortgagee was a trustee, a demurrer to the discovery was allowed. For as there was no trust declared upon the mortgage, it was not material to the relief prayed whether there was any trust reposed in the defendant or not.' So ' Debbieg and Lord Howe, in Ch. " See cases cited supra, note i ; and Hil. 1782, cited 3 Bro. C. C. 115; V/al- see i Ves. 249; i Bio. C. C. 97 ; and lis V. Duke of Portland, 3 Ves. 494; Askam v. Thompson, 4 Pri. Exch. R. The Mayor of London v. Levy, 8 Ves. 330; Cardale v. Watkins, 5 Madd. 19. 398 ; Lord Kensington v. Mansell, 13 ' Harvey v. Morris, Rep. tem. Ves. jr. 240. Finch, 214. " from proceeding to apply for judgment as in the case of a nonsuit, or from taking the cause to trial by proviso," although it is not clear that the action can be maintained, but yet there is considerable ground for argu- ment in support of the action in a court of lavvf. (Thomas v. Tyler, 3 Y. & C. Eq. Ex. 255.) A colonial or foreign judgment cannot be questioned in the courts of this country ; and therefore a bill for a discovery, and a commission to ex- amine witnesses abroad, in aid of the plaintiff's defense to an action brought in this country on a colonial or foreign judgment, is demurrable. (Martin v. Niqhols, 3 Sim. 458.) * Where a bill is filed rar a commission to examine witnesses, and for a discovery in aid of a defense at law to an action for libel, it is necessary that the case sought to be made out in equity should constitute a defense at law. It is sufficient, however, to refer to the pleas at law by the words, " as by the said pleas, reference being thereunto had, will appear : " for that will enable the court to call for the pleadings at law. (Macaulay v. Shackell, i Bligh [N. S.] 96.) 288 DEMURRERS. where a bill was filed by a lord of a borough, praying, amongst other things, a discovery whether a person applying to be admitted tenant was a trustee, the de- fendant demurred,' it being wholly immaterial to the plaintiff's case whether the defendant was a trustee or not. And where a bill was brought for a real estate, and sought discovery of proceedings in the ecclesiastical court upon a grant of administration, the • defendant demurred to that discovery, the proceedings in the ecclesiastical court being immaterial to the plaintiff's case.'' Again, where a bill to establish an agreement for separate maintenance for the defend- ant's wife, prayed a discovery of ill treatment of the wife, to make her recede from the agreement, the de- fendant demurred to the discovery ,3 which could not be material to the case made by the bill. But in gen- eral, if it can be supposed that the discovery may in any way be material to the plaintiff in the support or defense of any suit, the defendant will be compelled to make it.* Thus where a bishop filed a bill against the patron of a living and a clerk presented by him, to discover whether the clerk had given a bond of re- signation, and the patron demurred, because the dis- covery either was such as might subject him to penal- ties and forfeitures, or it was immaterial to the plaintiff, the demurrer was overruled; the court declaring a clear opinion that the bond was not simoniacal, but conceiving that the discovery might be material to support a defense to a quare impedit, upon this ground, " that the bond put the clerk under the power of the patron, in derogation of the rights of the ordinary." = ' Lord Montague v. Dudman, 2 Ves. ' i Ves. 205 ; and see Richards v. 396- Jackson, 18 Ves. 472 ; I Madd. 192; ' 2 Atk. 388. Att. Gen. v. Berkeley, 2 Jac. & W. 291. Hmcks V. Nelthrope, i Vem. 204. " Bishop of London against Ffytche, DEMURRERS. 289 VI. The situation of a defendant may render it improper for a court of equity to compel a discovery, either because the discovery may subject the defendant to pains or penalties, or to some forfeiture, or some- thing in the nature of a forfeiture ; or it may hazard his title in a case where in conscience he has at least an equal right with the person requiring the discovery, though that right may not be clothed with a perfect legal title.' It is a general rule that no one is bound to answer so as to subject himself to punishment, in whatever manner that punishment may arise, or whatever may be the nature of the punishment.'' If therefore a bill requires an answer which may ^ subject the defendant to any pains or penalties, he may demur to so much of the bill.* As if a bill charges anything which, if confessed by the answer, would subject the defendant to any criminal prosecution,' * or to any particular in Chan. Trin. 1781. In consequence 66; 13 Ves. 251; 15 Ves. 378; Wright of this decision, an answer was put in v. Plumtree, 3 Madd. 481 ; Glegg v, admitting the bond ; and a quare im- Legh, 4 Madd. 193. .pedit being brought, it was finally de- '' 2 Ves. 245, and the authorities re- termined in the House of Lords against ferred to in note ; 1 Eq. Gas. Abr. 131 ; the patron, and he consequently lost n Ves. 525 ; 2 Swanst. 214. his presentation. Perhaps, therefore, 'lAtk. 539; i Swanst. 305. the ovemiling the demurrer was in con- * See Billing v. Flight, I Madd. 230, tradiction to the principles on which And it may be observed that such a de- courts of equity have proceeded in the murrer will not be regarded as any ad- cases considered under the next head, mission of the truth of the charge. 16 See the cases reported in i Bro. C. C. Ves. 6g. 96, and Cunningham's Law of Simony. ' East India Company v. Campbel, See also Grey v. Hesketh, Ambl. 268. i Ves. 246 ; Chetwynd v. Lindon, 2 Ves. ' Seelvyz;. Kekewich, 2Ves. jr. 679; 451; Cartwright v. Green, 8 Ves. 405 ; Lord Shaftesbury v. Arrowsmith, 4 Ves. 14 Ves. 65. * A bill of discovery is demurrable where the whole object of it is to obtain a discovery of an illegal assault and imprisonment, with the view of subjecting the defendant to penal consequences. (Glynn v.. Houston, i Keen, 329.) And.it would seem that a bill of discovery cannot be sustained in aid of an action for a mere personal tort. (lb. 337.) The court will not compel a defendant to answer allegations where 19 290 DEMURRERS. penalties, as a usurious contract,' maintenance,^ cham- perty ,3 simony.-* And in such cases, if the defendant is not obliged to answer the facts, he need not answer the circumstances, though they have not such an immediate tendency to criminate.^ If the plaintiff is alone entitled to the penalties, and expressly waives them by his bill, the defendant shall be compelled to make the discovery ; for it can no longer subject him to a penalty.^ As if a rector or impropriator or vicar files a bill for tithes, he may waive the penalty of the treble value,'' to which he is entitled by the statute of 2 & 3 Edward VI, and thus become entitled to a discovery of the tithes subtracted. And though a discovery may subject a defendant to penalties to which the plaintiff is not entitled, and which he consequently cannot waive, yet if the de- fendant has expressly covenanted not to plead or demur to the discovery sought, which is the common case with respect to servants of the East India Com- pany, he shall be compelled to answer.^ * Where, too. ' Fenton v. Blomer, Tothil, 135; 214; i Meriv. 401. But see p. 288, Earl of Suffolk v. Green, i Atk. 450; 2 note 5. Atk.3g3; 22Vin.Abr.Usury, Q.4: Whit- " i Ves. 247, 248 ; 19 Ves. 227, 228. more v. Francis, 8 Pri. Ex. R. 616. " Lord Uxbridge v. Staveland, I Ves. " Penrice v. Parker, Rep. temp. 56 ; and see I Vern. 129 ; Bullock v. Finch, 75; Sharp v. Carter, 3 P. Wms. Richardson, 11 Ves. 373. 375 ; Wallis v. Duke of Portland, 3 ' Anon, i Vern. 60. Ves. 494. ' South Sea Comp. v. Bumsted, I '' See 2 Sim. & Stu. 252. Eq. Gas. Abr. 77 ; E. I. Comp. v. At- ' Att. Gen. v. Sudell, Prec. in Chan, kins, 2 Ves. 108 ; and see Paxtpn v. Douglas, 16 Ves. 239. there is a reasonable probability that by so doing he would subject himself to an indictment for a fraud. (Maccallum v. Turton, 2 Y. & J. 183.) Where a bill seeks a discovery of transactions which would subject the defendant to a criminal prosecution under a statute, the defendant need not plead the statute, but may demur to the bill. (Fleming v. St. John, 2 Sim. 181.) * A person who has been duly admitted a broker or agent by the DEMURRERS. 291 a person by his own agreement subjects himself to a payment in the nature of a penalty if he does a par- ticular act, a demurrer to discovery of that act will not hold.' Thus, where a lessee covenanted not to die loam, clay, sand, or gravel, except for the purpose of building on the land demised, with a proviso that if he should dig any of those articles for any other pur- pose, he should pay to the lessor twenty shillings a cart-load, and he afterwards dug great quantities of each article ; upon a bill for discovery of the quan- tities, waiving any advantage of possible forfeiture of the term, a demurrer of the lessee, because the dis- covery might subject him to a payment by way of penalty, was overruled.^ And a party shall not protect himself against relief in a court of equity by alleging that if he answers the bill filed against him, he must subject himself to the consequences of a supposed crime, though thQ court will not force him by his own oath to subject hirriself to punishment ; and therefore in the case 'of .a bill to inquire into the validity of deeds upon a su^estion of forgery, the court has eatertained jurisdiction of the ' See Morse v. Buckworth, 2 Vem. against Cole, in Chan. Hil. Vacation, 443; E. I. Comp. V. Neave, 5 Ves. 173. 1779. ' '^ Richards against Cole, or Brodrepp mayor and aldermen of the cityi of London must answer a bill of discovery in aid of an action for misconduct brought against him by his employer, although the discovery will subject him to penalties and to an indictment for perjury ; for otherwise the bond given and the oath taken by such persons on their admission, instead of securing their honesty, would ojily , serve as a screen to them in the commission of the grossest frauds. .,;J', And a person who has not been admitted a broker or agent, but , ac(8?|> as one, must answer, although he may thereby subject himself to 'a; ' penalty for acting without having been admitted. (Green v. Weavei^ i iSim,' .404.) •^, ■• '■''- 292 DEMURRERS. cause ; and though it has not obliged the party to a discovery of any fact which might tend to show him guilty of the crime, has directed an issue to try whether the deeds were forged.' It should seem that a demurrer will also hold to any discovery which may tend to show the defendant guilty of any moral turpitude, as the birth of a child out of wedlock. = But a mother has been compelled to discover where her child was bom, though it might tend to show the child to be an alien ;3 for that was not a discovery of any illegal act, or of any act which could affect the character of the defendant* A demurrer will likewise hold to a bill requiring a discovery which may subject the defendant to any for- feiture 5 of interest : as if a bill is brought to discover whether a lease has been assigned without license;^ or whether a defendant, entitled during widowhood,' or liable to forfeiture of a legacy in case of marriage with- out consent,* is married; or to discover any matter which may subject a defendant entitled to any oflice or franchise to a quo warranto. ^ But if the plaintiff is alone entitled to the benefit of the forfeiture, and ex- pressly waives"" it by the bill, as in the case of a bill for discovery of waste, " a demurrer will not hold ; for the waiver gives the court a ground of equity to award an injunction, if the plaintiff sues for the forfeiture." If '2Ves. 246. See also I Eq. Cas. ' Lord Uxbridge w. Staveland, i Ves. Abr. 131, p. 11; An. Gen. v. Sudell, 56. Prec. in Chan. 214. ' Monnins v. Monnins, 2 Chan. Rep. "Parker, 163; 2 Ves. 451 ; Franco 68, V. Bolton, 3 Ves. 368 ; King v. Burr, 3 « Chauncey v. Tahourden, 2 Atk. Menv. 698. 3g2 ; Chancey v. Fenhoulet, 2 Ves. 265. Att. Gen. v. Duplessis, 2 Ves. 287 ; • i Eq. Cas. Abr. 131, p. 10. ^°- 494- "> I Ves. 56 ; see above, p. 290, note 6. ' I Menv. 400. " 2 Atk. 393 ; Att. Gen. v. Vincent, TothiU, 69. 2 Eq. Cas. Abr. 378 ; s. c. cited Com. R. 664. " I Ves. 56. .^_ DEMURRERS. 293 the discovery sought is of a matter which would show the defendant incapable of having any interest or title ; as whether a person claiming a real estate under a de- vise was an alien, and consequently incapable of taking by purchase ; ' a demurrer will not hold. And where a devise over of an estate in case of marriage was con- sidered as a conditional limitation, and not as a forfeit- ure, a demurrer to a bill for a discovery of marriage was overruled.'' A defendant may in the same manner demur to a discovery which may subject him to anything in the nature of a forfeiture ; ^ as where a discovery was sought whether the defendant was educated in the Popish re- ligion, by which he might have incurred the incapaci- ties in the statute ii & 12 Wm. Ill;'' or whether a clergyman was presented to a second living, which avoided the first. ^ But where a person against whom a commission of bankrupt had issued, had brought actions against the assignees under the commission, disputing its validity, and particularly insisting that he had not been a trader within the meaning of the bankrupt laws, and in those actions the validity of the commission had been estab- lished ; and the assignees filed a bill against him, stat- ing these facts, and that being harassed by these ac- tions, and threatened with other actions, they were not able to distribute the effects under the commission, and therefore praying a perpetual injunction to restrain further actions, and requiring a discovery, amongst ' Att. Gen. v. Duplessis, Parker, 144. Geo. Ill, c. 60, the 31 Geo. Ill, c. 32, ' 2 Atk. 393 ; Lucas v. Evans, 3 Atk. and the 43 Geo. Ill, c. 39, do not en- 260 ; 2 Ves. 265. tirely remove these incapacities. But ' 3 Atk. 457. they are removed by the 10 Geo. IV, c. ' Jones V. Meredith, Com. 661 ; and 7, s. 23. see lb. 664; Smith v. Read, 3 Bac. Abr. * Boteler v. AUington, 3 Atk. 453. 800 ; I Atk. 527 ; 2 Ves. 394. The 18 294 DEMURRERS. Other things, of acts of trading, a demurrer to that dis- covery was overruled. ' If a defendant has in conscience a right equal to that claimed by a person filing a bill against him, though not clothed with a perfect legal title, this cir- cumstance in the situation of the defendant renders it improper for a court of equity to compel him to make any discovery which may hazard his title ; .and if the matter appears clearly on the face of the bill, a demur- rer will hold. ° The most obvious case is that of a pur- chaser for a valuable consideration without notice of the plaintiff's claim. ^ Upon the same principle a joint- ress may in many cases demur to a bill filed against her for a discovery of hfer jointure deed, if the plaintiff is not capable of confirming, or the bill does not offer to confirm, the jointure, and the facts appear suffi- ciently on the face of the bill ; though ordinarily ad- vantage is taken of this defense by way of plea.-* This arises from that singularity in the jurispru- dence of this country, produced by the establishment of the extraordinary jurisdiction of courts of equity distinct from the ordinary jurisdictions, noticed in a former page, and necessarily creating a distinction be- tween legal and equitable rights. = Where the courts of equity are called upon to administer justice upon grounds of equity against a legal title, they allow a superior strength to the legal title when the rights of the parties are in conscience equal ; and where a legal title may be enforced in a court of ordinary jurisdic- tion to the prejudice of an equitable title, the courts of ' Chambers v. Thomson, i Nov. ' 2 Ves. jr. 458 ; Sweet v. Southcote, 1793, rep. 4 Bro. C. C. 434, affirmed on 2 Bro. C. C. 66. rehearing, March, 1794. See Protector * Chamberlain v. Knapp, I Atk. 52 ; and Lord Lumley, Hardr. 22. See 2 Ves. 450 ; 2 Ves. 662. also Selby v. Crew, I Anstr. 504. ' 2 Ves. 573, 574. ' See Glegg v. Legh, 4 Madd. 193. DEMURRERS. 295 equity will refuse assistance to the legal against the equitable title where the rights in conscience are equal. If the grounds on which a defendant might demur to a particular discovery appear clearly on the face of the bill, and the defendant does not demur to the dis- covery, but, answering the rest of the bill, declines an- swering to so much, the court will not compel him to make the discovery. ' But in general, unless it appears clearly by the bill that the plaintiff is not entitled to the discovery he requires, or that the defendant ought not to be compelled to make it, a demurrer to the dis- covery will not hold ; and the defendant, unless he can protect himself by plea, must answer. Where the sole object of a bill is to obtain a dis- covery, some grounds of demurrer, which if the bill prayed relief would extend to discovery as well as to the relief, will not hold. Thus a demurrer to a bill for a discovery merely will not hold for want of parties, for the plaintiff seeks no decree ; nor, in general, for want of equity in the plaintiff's case for the same reason ; nor because the bill is brought for the dis- covery of part of a matter, for that is merely a demur- rer because the discovery would be insufficient. But it should seem a demurrer would hold to a bill for discovery of several distinct matters against several distinct defendants. For though a defendant is always eventually paid his costs upon a bill of discovery, if both parties live, and the plaintiff by amendment of his bill does not extend it to pray relief, yet the court ought not to permit the defendant to be put to any unnecessary expense, as either the plaintiff or defend- ant may die pending the suit." ' See Wrottesley v. Bendish, 3 P. ° See next page, and notes 2 and 3, Wms. 235 ; I Meriv. 401 ; see below, page 297. Chap. II, sect. 2, part 3. r 296 DEMURRERS. After an answer to a bill of discovery, when time for excepting to it as insufficient is expired, the defend- ant may apply for costs as a matter of course,' unless the plaintiff shall in the mean time have obtained an order to amend his bill, which may be done either to obtain a fuller discoveiy, or, if the case appearing on the answer will warrant the proceeding, by adding to the bill a prayer for relief. ' Demurrers have hitherto been noticed with refer- ence only to original bills. As every other kind of bill is a consequence of an original bill, many of the causes of demurrer which will apply to an original bill will also apply to every other kind ; but the peculiar form and object of each kind afford distinct causes of de- murrer to each. Thus if a bill of revivor* does not show a sufficient ground for reviving the suit,^ or any part of it,'' either by or against ' the person by or against whom it is brought, the defendant may by de- murrer show cause against the revival.^ Indeed though " See 4 Ves. 746 ; Hewart v. Semple, " On this subject see Butterworth v. 5 Ves. 86 ; Noble v. Garland, i Madd. Bailey, 15 Ves. 358. 344. But it seems that the time with- ' Humphreys v. Incledon, Dick. 38 ; in which the exceptions must be filed Harris v. Pollard, 3 P. Wms. 348. has latterly, under special circum- * 1 Eq. Cas. Abr. 3, 4. stances, been extended. See Baring v. ' University College v. Foxcroft, 2 Prinsep, i Madd. 526. Ch. Rep. 244. " 3 P. Wms. 348. * Where a bill is filed by a husband and wife, and the cause is heard on farther directions, after the death of the wife, in the absence of her personal representative, and afterwards her husband dies, and thereupon a bill of revivor is filed against his personal representative, a demurrer to such a bill on the ground that the personal representative of the wife is not before the court will be overruled ; for the plaintiff in the bill of revivor is entitled to have the suit placed in the same plight and condition in which it was at the time of the abatement in respect of which the revivor is sought ; and if the proceedings were then imperfect, it is not the office of demurrer to a bill of revivor to correct the imperfection. (Metcalfe v, Metcalfe, i Keen, 74.) DEMURRERS. 297 the defendant does not demur, yet if the plaintiff does not show a title to revive, he will take nothing by his suit at the hearing.' A demurrer will also in many cases hold to a bill of revivor brought singly for costs ;^ the court in general not permitting a suit to be revived for that purpose only, except where the costs have been actually taxed before the abatement happened.' * If a supplemental bill is brought upon matter aris- ing before the filing of the original bill, where the suit is in that stage of proceeding that the bill may be amended, the defendant may demur. ♦ If a bill is brought as a supplemental bill upon matter arising subsequent to the time of filing the original bill against a person who claims no interest arising out of the matters in litigation by the former bill, the defendant to the bill thus brought as a supplemental bill, may also demur, especially if the bill prays that he may answer the matters charged in the former bill. These, however, are grounds of demurrer arising rather from the plaintiff's having mistaken his remedy, than from his being without remedy. A cross-bill having nothing in its nature different from an original bill, with respect to which demurrers in general have been considered, except that it is oc- casioned by a former bill, there seems no cause of de- ■ 3 p. Wms. 348. * Baldwin v. Mackown, 3 Atk. 817 ; " 2 Eq. Gas. Abr. 3 ; 2 Ves. jr. 315 ; 2 Madd. 387 ; or, if the matter should 10 Ves. 572 ; Jupp V. Geering, 5 Madd. have arisen subsequently, but be im- 375. material, the defendant may also de- ' Hall V. Smith, i Bro. C. C. 438 ; mur. See Milner v. Lord Harewood, 17 Morgan v. Scudamore, 2 Ves. jr. 313 ; Ves. 144; Adams v. Dowding, 2 Madd. s. c. 3 Ves. 195 ; Lowten v. Mayor and 53 ; Ibid. 388. Commonalty of Colchester, 2 Meriv. 113; 3 Madd. 377. * A bill of revivor cannot be filed merely for costs by the personal representative of a defendant to a bill which has been dismissed with costs. (Andrews v. Lockwood, 1 5 Law J. 285, V. C. E.) 298 DEMURRERS. murrer to such a bill which will not equally hold to an original bill. And a demurrer for want of equity will not hold to a cross-bill filed by a defendant in a suit against the plaintiff in the same suit touching the same matter. For being drawn into the court by the plaint- iff in the original bill, he may avail himself of the as- sistance of the court, without being put to show a ground of equity to support its jurisdiction,' a cross- bill being generally considered as a defense.'' A bill filed by the direction of the court for the purpose of obtaining its decree touching some matter not in issue by a former bill, or not in issue between the proper parties, does not seem liable to any pecul- iar cause of demurrer. Indeed, being exhibited by order of the court upon hearing of another cause, there is little probability that such a bill should be liable, in substance, to any demurrer. The constant defense to a bill of review for error apparent upon a decree has been said to be by plea of the decree, and demurrer against opening the enroll- ment. 3 There seems, however, no necessity for plead- ing the decree, if fairly stated in the bill : the books of practice contain the forms of a demurrer only to such a bill, and there are cases accordingly. * On argument of a demurrer to a bill of review where several errors in the decree have been assigned, if the plaintiff should prevail only in one, the demurrer ' Boble V. Potman, Hardr. r6o ; i have pleaded the decree enrolled in bar Eden, igo. of the first bill, which did not state the ^ 3 Atk. 812. decree, but to have demurred alone to = Dancer v. Evett, I Vem. 392; Smith the bill of review. And in Helbut and V. Turner, I Vem. 273 ; 2 Atk. 534. Philpot, in the House of Lords, 11 See also 3 Atk. 627 ; O'Brien w. O'Con- March, 1725, the defendant demurred nor, 2 Ball & B. 146. alone to a bill of review, and the de- * Slingsby v. Hale, I Cas. in Chan, murrer was allowed, and the order 122 ; I P. Wms. 139 ; and see Jones v. affirmed by the Lords ; and see Denny Kenrick, 5 Bro. P. C. 244 ; and lb. 248 ; v. Filmore, I Vem. 135 ; s. C. 2 Free- in which case the defendant appears to man, 172. DEMURRER^. 299 must be overruled, as one error will be sufficient to open the enrollment ; and on argument of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the benefit of the demurrer to the hearing, and on the hearing has finally allowed the demurrer.' Where the decree has been pronounced above twenty years, the length of time is good cause of de- murrer. " Where any matter beyond the decree is to be offered against opening the enrollment, that matter must be pleaded ;3 and it has been said that length of time must be pleaded to a bill of review, and that otherwise the plaintiff will not have the benefit of ex- ceptions, as infancy, coverture, or the like.* A bill of review upon the discovery of new matter, and a supple- mental bill of the same nature, being exhibited only by leave of the court, * the ground of the bill is gener- ally well considered before it is brought ; and therefore in point of substance it can rarely be liable to a de- murrer. But if brought upon new matter, and the defendant should think that matter not relevant, prob- ably he might take advantage of it by way of demur- rer, although the relevancy ought to be considered at ' Denny v. Filmer, 2 Freeman, 172. length of time ; and it should seem that '' Edwards v. Carroll, 2 Bro. P. C. if the plaintiff can allege any exception 9S, Toml. ed. ; and see Smythe v. Clay, to a positive rule, he ought to do so by 4 Bro. C. C. 539, n. ; s. c. i Bro. P. C. his bill. In Lytton v. Lytton (4 Bro. 453, Toml. ed. ; s. c. Ambl. 645. C. C. 441), the exception was stated in ' See Hartwell v. Townsend, 2 Bro. the bill, and admitted by the answer. P. C. 107, Toml. ed. If length of time must be pleaded, yet * Gregor v. Molesworth, 2 Ves. log. the plaintiff can have no benefit of ex- See, however, Sherrington v. Smith, 2 ception not stated in the bill, unless it Bro. P. C. 62, Toml. ed. ; Gorman v. should be required that the plea should M'CuUoch, 5 Bro. P. C. 597, Toml. ed. be supported by averments negativing see 3 P. Wms. 287, note B, a.-a^post, p. every possible exception, to which there 306, as to a demurrer on the ground of seem to be great objections. * See note * to p. 300. 300 DEMURRERS. the time leave is given to bring the bill. ' Bills in the nature of bills of review do not appear subject to any peculiar cause of demurrer, unless the decree sought to be reversed does not affect the interest of the person filing the bill. If upon argument of a demurrer to a bill of review the demurrer is allowed, the order allow- ing it, being enrolled, is an effectual bar to another bill of review. =" If upon the face of a bill to carry a decree into execution, the plaintiff appears to have no right to the benefit of the decree, the defendant may demur. Bills in the nature of bills of revivor and supple- ment are liable to objections of the same sort as may be made to the kinds of bills of whose nature they partake. In addition to the several particular causes of de- murrer applicable to particular kinds of bills, it may be observed that any irregularity in the frame of a bill of any sort may be taken advantage of by demurrer. Thus if a bill is brought contrary to the usual course of the court, a demurrer will hold. ^ * As where, after a decree directing incumbrances to be paid according to priority, the plaintiflF, a creditor, obtained an assign- ment of an old mortgage, and filed a bill to have the advantage it would give him by way of priority over ' 2 Atk. 40. See what is stated ' See Wortley v. Birkhead, 3 Atk. in regard to a mere supplemental bill, 809 ; s. c. 2 Ves. 571; Lady Granville 17 Ves. 148, 149; 2Madd. 6i; and see v. Ramsden, Bmib. 56; Earl of Dar- above, 297, note 4. lington z/.Pulteney, 3 Ves. 386 ; Fletcher " See Denny v. Filmer, 2 Cas. in v. ToUett, 5 Ves. 3 ; Ogilvie v. Heme, Chan. 133 ; s. c. i Vern. 135, and lb. 13 Ves. 563 ; Maule v. Duke of Beau- 417 ; Pitt V. Earl of Arglass, lb. 441; fort, I Russ. 349. Woots V, Tucker, 2 Vern. 125. * For an instance of a demurrer to a bill on the ground of its having ■ been filed without leave of the court, see Bainbrigge v. Baddeley, 10 Jur. 765. DEMURRERS. 301 the demands of some of the defendants.' This was a bill to vary a decree, * and yet was neither a bill of review, nor a bill in nature of a bill of review, which are the only kinds of bills which can be brought to affect or alter a decree,'' unless the decree has been obtained by fraud.^ So if a supplemental bill is brought against a person not a party to the original " 3 Atk. 811. ' Arg^° 3 Atk. 811 ; Galley v. Baker, ° Arg*"" 3 Atk. 811; Read v. Ham- Cas. t. Talb. 199; Manaton v. Moles- bey, I Cas. in Chan. 44 ; S. C. 2 Freem. worth, I Eden, 25 ; 13 Ves. 564. 179 ; 13 Ves. 564. * Where a bill is filed against executors and the supposed representa- tive of a deceased executor, praying for an administration of the testator's estate, and impeaching an account alleged to have been fraudulently set- tled between the surviving executors and the deceased executor ; but it ap- pears, at the hearing, that the representative of the deceased executor is not a party to the suit ; and the decree therefore directs that the account settled with the deceased executor shall not be disturbed ; and then a bill, purporting to be a supplemental bill, is filed, bringing before the court the personal representative of the deceased executor and the assignees of a bankrupt executor, a demurrer to so much of the bill as seeks for an ac- count of the receipts of the deceased executor, even though put in by the assignees of the bankrupt executor, will be allowed ; because, to that ex- tent, the bill is not supplemental, but is an original bill seeking to vary the former- decree. (Wilson v. Todd, i My. & Cr. 42.) But where a testator directs his estate to be converted, and invested for certain persons for life, with remainder over ; and the executors, instead of converting, permit the successive tenants for life to enjoy the leasehold part of his estate until the expiration of the terms ; and the remainder-men file a bill against the representative of the executors, after the death of the tenants for life, for an account and distribution ; but in consequence of representations made by the representatives of the executors in ignorance of the circumstances, the remainder-men waive an account, and a decree is made for distributing the residue ; and afterwards the remainder-men dis- cover the breach of trust in respect of the leaseholds, and file a supple- mental bill for relief, the court, notwithstanding the former decree, will order the representatives of the executors to pay what was the value of the lease at the time of the testator's death. And this will be the case, even though the title to the lease was bad, if no advantage was taken of the badness of the title by the owners of the property. (Mehrtens v. Andrews, 3 Beav. 73.) 302 DEMURRERS. bill, praying that he may answer the original bill, and no reason is suggested why he could not be made a party to the original bill by amendment, he may de- mur/ If an irregularity arises in any alteration of a bill by way of amendment, it may also be taken ad- vantage of by demurrer. As if a plaintiff amends his bill, and states a matter arisen subsequent to the fihng of the bill,^ which consequently ought to be the sub- ject of a supplemental bill, or bill of revivor. But if a matter arisen subsequent to the, filing of the bill, and properly the subject of a supplemental bill, is stated by amendment, and the defendant answers the amended bill, it is too late to object to the irregularity at the hearing.^ For as the practice of introducing by sup- plemental bill matter arisen subsequent to the insti- tution of a suit has been established merely to preserve order in the pleadings, the reason on which it is founded ceases when all the proceedings to obtaiin the judg- ment of the court have been had without any incon- venience arising from the irregularity.* Having thus considered the several grounds of de- murrer, it may be proper to observe some particulars with respect to the frame of demurrers, the manner in which they are offered to the court, and the manner in which their validity may be determined, or their con- sequences avoided. A demurrer must be signed by counsel ;= but is put in without oath, as it asserts no fact, and relies merely upon matter apparent upon the face of the bill.* It is therefore considered that the defendant ' Baldwin v. Mackown, 3 Atk. 817. • See above, p. 297. ' I Atk. 291 ; Pilkington v. Wignall, » See Ord. in Chan. 172, Ed. Bea. 2 Madd. 240. " 2 Ves. 247 ; I Madd. 236. ' Belchier against Pearson, at the Rolls, 13 July, 1782. DEMURRERS. 303 may, by advice of counsel, upon the sight of the bill only, be enabled to demur thereto ; ' and for this reason it is always made the special condition of an order giving the defendant time to demur, plead, or answer to the plaintiff's bill, that he shall not demur alone. Whenever, therefore, the defendant has obtained an order for time, and is afterwards advised to demur, he must also plead to or answer some part of the bill." It has been held that, answering to some fact imma- terial to the cause, and denying combination,^ do not amount to a compliance with the terms of such an order ; and therefore, upon motion, a demurrer accom- panied by such an answer has been discharged.'* This rule has been probably established under a notion that time is not necessary to determine whether a defendant may demur to a bill or not, and a supposition that a demurrer may be filed merely for delay. But whether a bill may be demurred to is sometimes a subject of serious and anxious consideration ; and the preparation of a demurrer may require great attention, as if it extends in any point too far, it must be overruled. ■ Ord. in Chan. 172, Ed. Bea. Ves. 444; Mann v. King, 18 Ves. 297), " If the defendant should apply for except under peculiar circumstances, time to answer generally, it would be and upon leave granted by the court, on presumed that his case does not require a special application for that purpose, the usual indulgence to the extent men- See Bruce v. Allen, l Madd. 556 ; Sher- tioned in the text ; and the order would wood i^. Clark, 9 Pri. Ex. R. 259. be drawn up accordingly (see 10 Ves. ° As to the necessity of denying a 448 ; I Ves. & Bea. 186), and he would general charge of combination, see j-m- be bound to answer (10 Ves. 446); but /«z, p. 140. The charge of combination, a plea would be considered within the in order to be material, with the view meaning of this term (see Roberts v. of preventing a demurrer for want of Hartlej^ i Bro. C. C. 56 ; De Minkuitz equity by parties not interested, must w. Udney, 16 Ves. 355 ; Barber z/. Craw- be specific. Smith v. Snow, 3 Madd. shaw, 6 Madd. 284), unless, perhaps, it 10. v/ere of a description not required to be * Stephenton v. Gardiner, 2 P. Wms. put in upon oath (see Phillips v. Gib- 286; 4 Vin. Abr. 442; Lee v. Pascoe, I bons, I Ves. & Bea. 184 ; and see Anon. Bro. C. C. 78 ; and see Kenrick v. Clay- 2 P. Wms. 464 ; 3 P. Wms. 81) ; but the ton, 2 Bro. C. C. 214; s. c. Dick. 685 ; defendant would not be allowed to de- Lansdown v. Elderton, 8 Ves. 526; mur alone (Kenrick v. Clayton, 2 Bro. Tomkin v. Lethbridge, 9 Ves. 178 ; 10 C. C. 214 ; s. c. Dick. 685), or even to Ves. 446, 447, 448; 2 Ves. & B. 123. answer and demur (Taylor v. Milner, 10 304 DEMURRERS. Great inconvenience therefore may arise from a strict adherence to this rule. For it often happens that a defendant cannot answer any material part of the bill without overruling his demurrer ; it being held that if a defendant answers to any part of a bill to which he has demurred, he waives the benefit of the demurrer;' or if he pleads to any part of a bill before demurred to, the plea will overrule the demurrer.'' For the plaintiff may reply to a plea or answer, and thereupon examine witnesses and hear the cause ; but the proper conclusion of a demurrer is to demand the judgment of the court whether the defendant ought to answer to so much of the bill as the demurrer extends to, or not.^ The condition that the defendant shall not demur alone, ought therefore, perhaps, to be considered lib- erally ; and it 'has been formerly said that the court will not incline to discharge a demurrer if the de- fendant denies combination, only where he cannot answer further without overruling his demurrer.* In- deed, any material answer must in many cases over- rule the demurrer ; so that giving a defendant time to demur, plead, or answer, not demurring alone, is often in effect giving leave to do a thing, but clogging the permission with a condition which makes it nugatory ; and though the rule was first adopted upon a reason- able ground to prevent unnecessary delay, it may, if strictly observed, contradict the maxim, that a court of equity ought not, for form sake, to do a great injus- tice. = However the modern practice is according to the original strictness of the rule ;« and it may be'bet- ' See Hester v. Weston, i Ves. 463 ; * See Done v. Peacock, 3 Atk. 726; Jones V. Earl of Strafford, 3 P. Wms. see above, p. 272, note 2. 79; Abraham v. Dodgson, 2 Atk. 157. ' i Ves. 247. \ Dormer v. Fortescue, 2 Atk. 282. » Att. Gen. v. Jenner, in Chan. 9 3 P. Wms. 80. Nov. 1738 ; Sir John Dyneley Goodere against Dean and Chapter of Worces- DEMURRERS, 305 ter, where the case requires it, to relax the rule upon special application to the court ' than to permit it to be evaded.'' Indeed in some cases an answer to any part of the bill may overrule the demurrer ; for. if the ground of demurrer applies to the whole bill, the an- swering to any part is inconsistent ; ^ and therefore when the ground of demurrer was the general impro- priety of the bill, and that the defendant ought not, therefore, to be compelled to answer it, his answer to an immaterial part, in compliance with the order for time which he had obtained, overruled his demurrer.* As a demurrer relies merely upon matter apparent on the face of the bill, so much of the bill as the de- murrer extends to is taken for true ; = * thus if a demur- ter, in Exchequer, 1777. Lee against answer will satisfy the terms of the Pascoe, in Chan. East. 1780 ; I Bro. C. order ; but that the court considers the C. 77 ; 8 Ves. 527 ; 10 Ves. 447 ; see practice in this respect to be guarded above, p. 303, notes 2, 3 and 4, and p. by the honor of counsel. See Tomkin 304, note I. V. Lethbridge, 9 Ves. 178; 11 Ves. 73. ' And this, upon a special ground, ' Tidd v. Clare, Dick. 712. the court will do. See above, p. 303, * Ruspini v. Vickery, in Chan. 16 note 2. Jan. 1793. ' It seems that very little by way of ' 2 Ves. & Bea. 95 ; i Madd. 565. * A party demurring admits the truth of the allegations in the bill not only as against himself, but also as against another ' person. So that if a bill alleges that a person has ceased to have interest, a party demurring admits that fact, and cannot object to the suit on account of such person not having been made a party to the record. (Earie v. Holt, 9 Jur. 773, V. C. W. But see Penfold v. Nunn, 5 Sim. 405.) Where a bill states the purport of a deed in the possession of the de- fendant, the court, upon demurrer, must assume such statement to be cor- rect ; so that the demurring party is not at liberty to read the deed itself, for the purpose of disproving such statement, even though the bill, for greater certainty, refers to the deed. For, to hold otherwise, would' be to give the defendant an advantage depending upon the accident of his hav- ing the custody of the deed, and might in effect be to decide the question raised by the demurrer upon matter dehors the record. (Campbell v. Mackay, i My. & Cr, 613.) Where a defendant demurs to a bill for want of equity, he is not to be taken to have confessed the truth of the statements and charges. He only 20 3o6 DEMURRERS. rer is to the whole bill, the whole ' is taken for trae ; if it is to any particular discovery, the matter sought to be discovered, and to which the demurrer extends, is taken to be as stated in the bill ; and if the defendant demurs to relief only, the whole case made by the bill to ground the relief prayed is considered as true. A demurrer is therefore always preceded by a protesta- tion against the truth of the matters contained in the bill ; a practice borrowed from the common law, and probably intended to avoid conclusion in another suit. The admission by a demurrer of the truth of the facts stated in the bill has been considered as one reason why a defense founded on length of time, though apparent on the face of the bill, without any circumstance stated to avoid its effect, cannot generally be made by demurrer." * Upon a demurrer to a bill ' That is, everything necessary to ground of exception, as infancy, or the support the plaintiff's case which is well like, be alleged therein, it seems that, charged in the bill, i Ves. 426, 427 ; i contrary, to the opinion of Lord Hard- Ves. jr. 289. Facts on a demurrer are wicke, expressed in a case in which the taken to be true ; that is, facts which suit was for redemption of a mortgage, are well and materially alleged. Lord after quiet possession by the mortgagee Hardwicke, in Butler v. Royal Ex- of more than twenty years (see Aggas change Assurance, in Chan. 22 Nov. v. Pickerell, 3 Atk. 225 ; and see 2 Ves. 1749 ; I Ves. jr. 78, 289 ; 3 Meriv. 503 ; jr. 84), the defendant may demur. Beck- I Madd. 565. ford w. Close, cited 3 Bro. C. C. 644 ; 4 ' But if the plaintiff's case be so Ves. 476 ; lb. 479 ; Foster v. Hodgson, stated in the bill as to show that his 19 Ves. 180. . claim is barred by lapse of time, and no admits them for the purpose of showing the want of equity even upon the assumption that the statements and charges in the bill are true. All that he says by a demurrer is this : " Even admitting (just for the sake of argu- ing upon your own grounds, as to the existence of the equity which you assert) that all you say is true, still you have no equity. Without putting myself to the trouble, expense, and delay of disproving your allegations, but taking you on your own grounds, I can show that you have no equity against me." See the Lord Chancellor's remarks in Thompson v. Barclay, 9 Law J. [O. S.] 216, 217. * A defendarit may avail himself of the statute of limitations by demurrer, when the application of the statute to the suit appears on the face of the bill. (Hoare v. Peck, 6 Sim. 51.) DEMURRERS. 307 brought to impeach transactions which had passed twenty-eight years before the bill was filed, on the ground of fraud, without any sufficient cause shown for not instituting the suit sooner, it was said by the court that the party who demurs admits everything well pleaded, in manner and form as pleaded ; and a demurrer ought therefore in a court of law to bring before the court a question of law merely ; and in a court of equity, a question of law or equity merely. The demurrer must therefore be taken to admit the whole case of fraud made by the bill ;* and the argu- ment to support it must be, not that a positive limita- tion of time has barred the suit, for that would be a pure question of law, but that from long acquiescence it should be presumed that the fraud charged did not exist, or that it should be intended that the plaintiff had confirmed the transaction, or had released or submitted upon such consideration as to bar himself from the general equity stated in the bill. This must be an inference of fact, and not an inference of law ; and the demurrer must be overruled, because the de- fendant has no right to avail himself by demurrer of an inference of fact, upon matter on which a jury in a court of law would collect matter of fact to decide their verdict, if subrnitted to them, or a court would proceed in the same manner in equity. What limitation of time will bar a suit where there is no positive limitation, or under what circumstances the lapse of time ought to have that effect, must depend on the facts of the par- ticular case, and the conclusion must be an inference of * By demurring to the bill, the defendant does not admit charges of fraud contained in it. (Nesbitt v. Berridge, 9 Jur. [N. S.] 1044.) 3o8 DEMURRERS. fact, and not an inference of law,' and therefore cannot be made on a demurrer.'' A demurrer must express the several causes ^ of demurrer;'* and in case the derhurrer does not go to the whole bill, it must clearly express the particular parts of the bill demurred to.= If a demurrer is general to the whole bill, and there is any part, either as to the relief or the discovery, to which the defend- ant ought to put in an answer, it was generally con- sidered that the demurrer being entire must be overruled.^ But there are instances ' of allowing a demurrer in part;^ and a defendant may put in separate demurrers to separate and distinct parts of a bill for separate and distinct causes.' For the same ground of demurrer frequently will not apply to differ- ent parts of a bill, though the whole may be liable to demurrer ; and in this case one demurrer may be over- ruled upon argument, and another allowed." ' See Cuthbert v. Creasy, 6 Madd. Green, i Atk. 450 ; Todd v. Gee, 17 l8g. Ves. 273 ; i Swanst. 304 ; i Jac. R. 467. ° Ld. Deloraine v. Browne, in Chan. But though a demurrer cannot be good 13 & 14 June, 1792 ; 3 Bro. C. C. 633. in part and bad in part (8 Ves. 403; II But see p. 298, as to demurrers to bills Ves. 70 ; 17 Ves. 280), it appears that of review. In Tobin v. Beckford, on where such a mode of defense has been appeal from Jamaica, 26 July, 1784, a resorted to by several defendants joint- demurrer to a bill to redeem on account ly, it may be good as to some of them, of length of time was allowed by the and bad as to the others. See 8 Ves. council — present Kenyon, M. R. — after 403, 404. consideration. ' Rolt v. Lord Somerville, 2 Eq. Ca^, ' See 3 Madd. 8 ; i Jac. R. 467 ; Abr. 759 ; Radcliffe v. Fursman, 2 Brp. and see Harrison v. Hogg, 2 Ves. jr. P. C. 514, Toml! ed. 323. " Although this is not now the prac- * Peachie v. Twycrosse, Cary Rep. tice, the court will in some instances, 113 ; Ord. in Chan. Ed. Bea. 77, 173. on the argument of s, demurrer, grant ° Chetwynd v. Lindon, 2 Ves. 451; leave, upon overruling it, to the defend- Devonsher v. Newenham, 2 Sch. & Lefr. ant to put in another less extended 199. And this must be done, not by (Thorpe w. Macauley, 5 Madd. 218), way of exception, as by demurring to all and will, even after it has been over- except certain parts of the bill, but by ruled, sometimes be induced to grant a positive definition of the parts to which similar indulgence. Baker v. Mellish, he thereby seeks to avoid answering. 11 Ves. 68. See Robinson v. Thompson, 2 Ves. & " 3 P. Wms. 149 ; Roberdeau v- Bea. 118 ; Weatherhead v. Blackburn, Rous, x Atk. 544. 2 Ves. & Bea. 121 ; sed vide Hicks v. '° North v. Earl and Countess of Raincock, i Cox R. 40. Strafford, 3 P. Wms. 148. " I Ves. 248 ; Earl of Suffolk v. DEMURRERS. 3O9 If the plaintiff conceives that there is not sufficient cause apparent on the bill to support a demurrer put in to it, or that the demurrer is too extensive, or other- wise improper, he may take the judgment of the court upon it ; and if he conceives that by amending his bill he can remove the ground of demurrer, he may do so before the demurrer is argued, on payment of costs, which vary according to the state of the proceedings.' But after a demurrer to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regularly amended.^ To avoid this consequence the court has sometimes, instead of deciding upon the demurrer, given the plaintiflF liberty to amend his bill, paying the costs incurred by the defendant ; and this has been fre- quently done in the case of a demurrer for want of parties.^ Where a demurrer leaves any part of a bill untouched, the whole may be amended notwithstand- ing the allowance of the demurrer ; for the suit in that case continues in court, the want of which circum- stance seems to be the reason of the contrary practice where a demurrer to the whole of a bill has been allowed. A demurrer being frequently on matter of form is not in general a bar to a new bill ; but if the court upon a demurrer has clearly decided upon the merits of the question between the parties, the decision may be pleaded in bar of another suit."* ' Anon. Mosely, 301 ; I Ves. jr. 448 ; London v. Levy, 8 Ves. 398 ; Edwards Anon. gVes. 221; I Aim. Cur. Cane. 565 ; j/. Edwards, 6 Madd. 255) ; and it seems I Harrison, Chan. Pract. 39. probable that, even after allowance, the ' See above, p. ill, note I ; Lord court might be induced, under some Coningsby v. Sir Jos. Jekyll, 2 P. Wms. circumstances, to set the cause on foot 300, and note ; atid Watkins *. Bush, again, and to authorize an amendment Dick. 701. of the bill. See 11 Ves. 72. ' And the court upon allowing a de- * See the cases upon demurrers to murrer, will sometimes give the plaint- bills of review cited above, p. 298, iff leave to amend (see Mayor, &c. of note 3. 3IO DEMURRERS. A demurrer being always upon matter apparent upon the face of the bill, and not upon any matter alleged by the defendant, 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 upon the face of it any cause of demur- rer. In this 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 good cause of demurrer. For in many cases what is a good de- fense by way of plea is also good as a demurrer, if the facts appear sufficiently by the bill. ' And if a demur- rer should be overruled on argument because the facts do not sufficiently appear on the face of the bill, defense may be made by plea, stating the facts necessary to bring the case truly before the court, though it has been said that the court would not permit two dila- tories.'' And after a plea overruled, it is said that a demurrer was allowed, bringing before the court the same question in substance as was agitated in arguing the plea. 3 But after a demurrer has been overruled, a second demurrer will not be allowed ;* for it would be in effect to rehear the case on the first demurrer ; as on argument of a demurrer any cause of demurrer, though ' See Hetley, 139. But see 3 Atk. good in substance, it was overruled, 226. with liberty to the defendant to file ^ Hudson V. Hudson, in Chan. 23 another. See Devonsher v. Newen- April, 1734, reported i Sim. & Stu. 512, ham, 2 Sch. & Lefr. 199. And, in con- note ; Rowley v. Eccles, l Sim. & Stu. sequence of the modern doctrine, that a 511- defendant who submits to answer must " East India Company^. Campbell, in general answer fully (see below, Ch. 1 Ves. 246. But it may be doubted 2, sect. 2, part 3), this court, in some in- whether this case has not been mis- stances, on overruling a demurrer to taken by the reporter, and whether the discovery, instead of giving the defend- question was not on exceptions to an ant liberty to insist by answer that he answer. See 2 Ves. 491, 492. is not bound to make the disclosure re- See 2 Bro. C. C. 66 ; and see above, quired, will give him liberty to file an- p. 308, note 8. Where, however, a de- other less extensive. See Thorpe zi. murrer was informal in its frame, but Macauley, 5 Madd. 218. PLEAS. 311 not shown in the demurrer as filed, may be alleged at the bar, and if good will support the demurrer.' Section II. — Part II. Of Pleas. In treating of pleas the same order may be con- veniently pursued as has been already used in treating of demurrers. Pleas to original bills will therefore be first considered, and under that head the nature of pleas in general, and the principal grounds of plea to every kind of bill will necessarily be noticed ; the distinct pleas applicable peculiarly to the several other kinds of bill will be next mentioned ; and in the third place the frame of pleas in general, and the manner in which their validity may be determined, will be considered. Pleas to original bills will also be considered under the two heads of pleas to relief, and pleas ,to discovery only, and these will necessarily involve the consideration of pleas to bills of discovery merely. A demurrer has been mentioned to be the proper mode of defense to a bill when any objection to it is apparent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it When an objection to a bill is not apparent on the bill itself," if the defendant means to take advan- tage of it, he ought to show to the court the matter which creates the objection, either by answer or by ' As to demurrers o«? fe««j', see Pyle Moses, 2 Madd. 294; I Swanst. 288; V. Price, 6 Ves. 779 ; 8 Ves. 408 ; Dum- Knye v. Moore, i Sim. & Stu. 61 ; Hook mer v. Corporation of Chippenham, 14 v. Dorman, i Sim. & Stu. 227. Ves. 24s ; 17 Ves. 216 ; Att Gen. v. ' See Billing v. Flight, i Madd. 230. 3 1 2 PLEAS. plea, which has been described as a special answer, showing or relying upon one or more things as a cause why the suit should be either dismissed, delayed, or barred.' The defense proper for a plea is such as re- duces the cause, or some part of it, to a single point," and from thence creates a bar to the suit, or to the part to which the plea applies.^ It has been observed that the end of a plea is to save to the parties the ex- pense of an examination of witnesses at large ; and that therefore it is not every good defense in equity that is good as a plea ; for that where the defense con- sists of a variety of circumstances, there is no use of a plea, as the examination must still be at large ; and the effect of allowing a plea would be that the court would give judgment on the circumstances of the case before they were made out by proof.* Pleas have been generally considered as of three sorts : to the jurisdiction of the court ; to the person of the plaintiff or defendant ; and in bar of the suit. As they have been usually arranged under these heads, it may be convenient to consider them in some degree with reference to that arrangement ; but the order before observed in treating of demurrers may be at the same time pursued ; and pleas may be considered with reference to the several grounds already mentioned on which defense may be made to a bill. The objections to the relief sought by an original bill which can be taken advantage of by way of plea,, are nearly the same as thos'^ which may be the subject of demurrer ; but they are rather more numerous, be- ' Prac. Reg. 324, Wy. ed. ; 2 Sch. & ' Chapman v. Turner, i Atk. 54; Lefr. 725 ; i Madd. 194. s. c. I Har. Chan. Prac. 356 ; 2 Bligh ' I Atk. 54 ; 15 Ves. 82, 377. P. C. 614. " 2 Bligh P. C. 614, ^ PLEAS. 313 cause a demurrer can extend to such only as may appear on the bill itself, whereas a plea proceeds on other matter. The principal are : I. That the subject of the suit is not within the jurisdiction of a court of equity ; II. That some other court of equity has the proper jurisdiction; III. That the plaintiff is not en- titled to sue by reason of some personal disability; IV. That the plaintiff is not the person he pretends to be, or does not sustain the character he assumes ; V. That the plaintiff has no interest in the subject, or no right to institute a suit concerning it ; VI. That he has no right to call on the defendant concerning it; VII. That the defendant is not the person he is alleged to be, or does not sustain the character he is alleged to bear; VIII. That the defendant has not that interest in the subject which can make him liable to the de- mands of the plaintiff; IX. That, for some reason founded on the substance of the case, the plaintiff is not entitled to the relief he prays ; [X. That the de- fendant has an equal claim to the protection of a court of equity to defend his possession, as the plaintiff has to the assistance of the court to assert his right].* Of these, the second is the plea generally termed a plea to the jurisdiction of the court ; and the third, the fourth, and the seventh, are treated as pleas to the person of the plaintiff and defendant ; the others are considered as pleas in bar of the suit. XI. The deficiency of a bill to answer the purposes of complete justice may also be shown by plea, which may be considered as in bar of the suit, though perhaps a temporary bar only ; * The passage within the brackets is inserted, and the following numerals are altered from X. and XI. to XI. and XII., in order to make this part agree with what occurs at pages 361 and 366. 314 PLEAS. XII. The impropriety of unnecessarily multiplying suits may be the subject of plea, which is also in bar of the suit ; but the inconvenience which may arise from confounding distinct matters in the same bill, as it must be apparent on the bill itself, unless very artfully framed, can in general only be alleged by de- murrer. Those pleas which are commonly termed pleas to the jurisdiction of the court do not dispute the rights of the plaintiff in the subject of the suit, or that they . are fit objects of the cognizance of a court of equity, but simply assert that the Court of Chancery is not the proper court to take cognizance of those rights. Pleas to the person of the plaintiff also do not dispute the validity of the rights which are made the subject of the suit, but object to the plaintiff that he is by law disabled to sue in a court of justice or cannot institute a suit alone ; or that he is not the person he pretends to be, or does not sustain the character he assumes. Pleas in bar are commonly described as allegations of foreign matter, whereby, supposing the bill so far as it is not contradicted by the plea ' to be true, yet the suit, or the part of it to which the plea extends, is barred." But this description perhaps does not comprise every kind of plea, or does not mark the distinctions between the different kinds with sufficient accuracy. I. The general objects of the jurisdiction of a court of equity, and the manner in which a -want of jurisdic- tion may be alleged by demurrer, when a bill does not propose to attain any of those objects, or it is apparent on the face of it that none can be attained by it, have ' 2 Atk. 51. ' Prac. Reg. 327, Wy. ed. ; I Madd. 194. PLEAS. 315 been already mentioned. A case which is not really- such as will give a court of equity jurisdiction cannot easily be so disguised in a bill as to avoid a demurrer; but there may be instances to the contrary ; and in such cases it should seem a plea of the matter neces- sary to show that the court has not jurisdiction on the subject, though perhaps unavoidably in some degree a negative plea, would hold. ' Thus, if the jurisdiction was attempted to be founded on the loss of an instru- ment, where, if the defect arising from the supposed accident had not happened, the courts of ordinary jurisdiction could completely decide upon the subject, perhaps a plea showing the existence of the instru- ment, and t and an ' Amers v. Legg, Choice Cas. in not to be supported by oath, but can be Chan. 164; Prac. Reg. 327, Wy. ed. It proved by the record alone. v. should here be mentioned that, by stat. Davies, 19 Ves. 81 ; 2 Ves. & Bea. 327. 53 Geo. Ill, c. 127, excommunication is ° Burk v. Brown, 2 Atk, 397 ; 2 Vin. discontinued, except in certain cases Abr. 274, Alien (I) ; I Bac. Abr. 83, therein specified. Alien (D) ; Prac. Reg. 327, Wy. ed. ; » 3 Bac. Abr. 780, Papists (i). See Rast. Entr. 252 ; Bolt v. Att. Gen. I Bro. Lord Petre v. Univ. of Cambridge, Lut- P. C. 421, Toml. ed. ; Albretcht v. Suss- wyche, iioa man, 2 Ves. & Bea. 323; and see Ex " See stat. 31 Geo. Ill, c. 32, s. 3, parte Lee, 13 Ves. 64 ; and Ex parte and valuable note to Co. Litt. p. 391, a, Boussmaker, 13 Ves. 71. note 2, Hargr. & Butl. ed. ' Ramkissenseat v. Barker, I Atk. * See V. Davies, ig Ves. 81 ; 51. As to the incapacities of aliens to and see Ex parte Bullock, 14 Ves. 452, take and to hold certain property, see And case on Irish statutes, Kennedy v, Co. Litt. 2, b, and notes in Hargr. & Daly, I Sch. & Lefr. 355. Butl. ed. In such cases, it.is presumed ' 2 Atk. 399. This kind of plea is that a plea of mere alienage, if properly * This disability has been removed by the stat. 31 Geo. Ill, c. 32. PLEAS. 321 alien enemy may sue under some circumstances.' A plea has been put in to a bill filed by an alien infidel not of the Christian faith, and was attempted to be supported upon the ground that the plaintiff was upon a cross-bill incapable of being examined upon oath. The plea was overruled without argument.^ 6. If a bill is filed in the name of any person inca- pable alone of instituting a suit, as an infant, a married woman, or an idiot or lunatic, so found by inquisition, the defendant may plead the infancy, the coverture, ^ or the inquisition of idiotcy or lunacy, ■♦ in abatement of the suit. IV. A plea that the plaintiff is not the person he pretends to be, or does not sustain the character he assumes, and therefore is not entitled to sue as such,' though a negative plea, is good in abatement of the suit ; as where a plaintiff entitled himself as adminis- trator, and the defendant pleaded that he was not administrator.* And where a plaintiff entitled himself as administrator of an intestate, and the defendant pleaded that the supposed intestate was living,' the plea was allowed. It has been made a question how far a negative plea can be good.^ ,To a bill by a per- son claiming as heir to a person dead, the defendant pleaded that another person was heir, and that the plaintiff was not heir to the deceased, and the plea was framed, would be a sufficient defense, state of mere mental incapacity, Wart- See Co. Litt. 129, b; and Burk v. naby w. Wartnaby, l Jac. 377. Brown, 2 Atk. 397. " Prac. Reg. 326, Wy. ed. ' 3 Burr. 1 741 ; 1 Bac. Abr. 84, Alien " Winn v. Fletcher, I Vern. 473 ; but (D) ; Doug. 619 ; Cornu and Black- see Fell v. Lutwidge, 2. Atk. 120 ; 3 burne, and the case of Anthon v. Fisher, Barnard, 320. In Doug, note i, p. 626. But the latter ' Ord against Huddleston, Dick, case was afterwards reversed in the Ex- 510; s. c. cited Cox, 198. chequer Chamber, i6th Nov. 1784. And * But that question has been set at see Evans v. Richardson, 3 Meriv. 469. rest, ii Ves. 302, 305. See instances " Ramkissenseat v. Barker, I Atk. 51. of negative pleas referred to in the next ' Prac. Reg. 326, Wy. ed. page. * See case of the plaintiff being in a 21 ^22 PLEAS, overruled/ but this decision was afterwards doubted by tlie learned judge himself,' when pressed by the necessary consequence, that any person falsely alleging a title in himself might compel any other person to make any discovery which that title, if true, would enable him to require, however injurious to the person thus improperly brought into court ; so that any per- son might, by alleging a title, however false, sustain a bill in equity against any person for anything so far as to compel an answer ; and thus the title to every estate, the transactions of every commercial house, and even the private transactions of every family, might be ex- posed ; and this might be done in the name of a pau- per, at the instigation of others, and for the worst pur- poses. 3* To avoid this inconvenience, a defendant ' Newman v. Wallis, 2 Bro. C. C. who is heir, would be good, for that the 142 ; and see Gunn v. Prior, Dick. 657; defendant might not be able to prove, s. c. I Cox, 197; Forrest, Ex. 88, n. ; 16 Ves. 264, 265. Kinnersleyw. Simpson, Forrest, 85. See ° As further examples of negative also Earl of Strathmore v. Countess of pleas, see Drew v. Drew, 2 Ves. & Bea. Strathmore, 2 Jac. & W. 541. 159 ; Sanders v. King, 6 Madd. 61 ; and °3 Bro. C. C. 489; I Madd. 194. Yorke v. Fry, lb. 65, that plaintiff is And it seems to have been established, not a partner ; and Thring w. Edgar, 2 that in such a case a plea that the Sim. & Stu. 274, and particularly at p. plaintiff is not heir, without showing 280, that he is not a creditor. * Such a negative as above mentioned is a good plea. And where a plea is in substance a negative plea, though in form it is an affiriilative plea, it must be accompanied by an answer as to allegations which, if true, would disprove the plea. Thus where the plaintiff claims as heir ex parte materna, and the defendant pleads that another person is )xt\x ex parte paterna, in such case the plea is in substance a plea of no title as heir, and must be accompanied by the answer as to admissions of the plaintiffs title alleged to have been made by the defendant. (Harland v. Emerson, 8 Bligh [N. S.] 62.) A plea which negatives the plaintiff's title, does not protect the defend- ant from answer and discovery as to such matters as are specially charged " as evidence," of the plaintiffs title. (Sanders v. King, 2 Sim. & Stu. 277.) But it does protect him from answer and discovery generally as to the sub- ject of the suit ; and indeed as to all matters which the plaintiff does not distinctly inform the defendant are the circumstances by which the PLEAS, '2 2 '2 has in some cases been permitted to negative the plaintiff's title by answer, and thus to protect himself against the required discovery ; but in other cases this has not been allowed, and the subject seems still to require further consideration.' V. Interest in the subject of the suit, or a right to the thing demanded, and proper title to institute a suit concerning it, have been mentioned as essentially nec- essary to sustain a bill ; and it has been observed that if they are not fully shown by the bill itself, the defend- ant may demur. But a title apparently good may be ' See II Ves. 283, 296, and 303, and the plaintiff, and another to show a title the several cases there cited, with the in one's self; and that the former had discordant opinions of several judges, never been allowed as a good plea. In the case of Gethin v. Gale, cited in Mr Capper's note. See the authorities Ambl. 354, the master of the rolls sit- cited in tire last note, and in the notes ting for the chancellor, 29 Oct. 1739, to the next page and below, chap. II, said it was one thing to deny a title in sect. 2, part 3. plaintiffs title is to be established. (Sanders v. King, 2 Sim. & Stu. 277 ; Thring- v. Edgar, 2 Sim. & Stu. 274.) Admissions of title, however, form an exception to this. For, in order to obtain an answer as to admissions of title, when in effect a plea of no title is put in, it is not necessary that the plaintiff should allege such admis- sions "as evidence" of his right or title, or should by any other terms point out that he requires a discovery of them as evidence of his title ; be- cause their very nature renders this superfluous. (Harland v. Emerson, 8 Bligh [N. S.] 62.) Where a plaintiff claims estates, either as heir to the person last seized, or as a remainder-man under the limitations of a settlement in the posses- sion of the defendant, under which, as he charges, the person last seized took only a life estate, or under the limitations of some prior settlement in the possession of the defendant, which, as he charges, the person last seized had no power to defeat ; and the defendant pleads that the person last seized had an estate tail, and suffered a recovery to the use of himself in fee, and then devised the estates to the defendant, but takes no notice of the settlement particularly mentioned in the bill, or of any other settlement, the plea will be overruled ; because the defendant ought in such case to traverse the grounds of the plaintiffs title, or some substantial part of it — to deny the existence of such settlement, or at least to deny the fact of his possession or knowledge of the contents thereof. (Hungate v. Gascoigne, I Russ. & M. 698.) 324 PLEAS. Stated in a bill, and yet the plaintiff may not really have the title he states * either because he misrepresents himself, which has been considered under the last head, or because he suppresses some circumstances respect- ing his title which, if disclosed, would show either that nothing was ever vested in him, or that the title which he had has been transferred to another ; and this the defendant may show by plea in bar of the suit. As if a plaintiff claims as a purchaser of a real estate, and the defendant pleads that he was a Papist, and inca- * If a party having no interest be joined as coplaintiff with a person having an interest, and that fact does not appear on the face of the bill, but is brought forward by a plea, such a plea is a good defense to the suit. An instance of this kind occurs where an uncertificated bankrupt is made a coplaintiff. (Makepeace v. Haythome, 4 Russ. 244.) If to a bill filed by the assignee of an insolvent debtor, the defendant pleads that the consent of the creditors and of the Insolvent Debtors' Court to the institution of the suit had not been obtained, the plea will be overruled ; because the provision made in the statute as to such consent is made for the benefit of the creditors alone. (Casbome v. Barsham, 6 Sim. 317. See also note *, p. 248, supra^ According to the case of Ocklestone v. Benson, to a bill by the assignees of a bankrupt against a debtor, the latter may plead that the suit was not instituted with the consent of the major part in value of the creditors, at a meeting pursuant to the act of parliament. (2 Sim. & Stu. 265. But see preceding paragraph, and note *, p. 248, supra^ A plea of no interest will be allowed where a suit is instituted by two persons on behalf of themselves and all other shareholders in a company, but one of the two has sold and assigned his shares before the institution of the suit. (Doyle v. Muntz, 10 Jur. 914, V. C. W.) To a bill for dower, a plea of ne ungues accouple, that is, a plea that the plaintiff and the person whose widow she claims to be were never lawfully married, is a good plea. (Poole v. Poole, i Coll. Eq. Ex. 331.) Where administration is granted under the impression that the de- ceased died intestate, and then the executor files a bill to recover part of the assets, alleging that he has proved the will, a plea of no probate having been granted, will be allowed. For until probate is obtained, it is not certain but that the administration is valid. (Simon v. Milman, 2 Sim. 341.) PLEAS. 325 pable of taking by purchase ; ' * or a plaintiff claims property under a title accrued previous to conviction of himself, or of a person under whom he claims, of some offense which occasioned a forfeiture,'' or previous to a bankruptcy,* or any other defect in the title* of the plaintiff to the matter claimed by the bill. A plea of conviction of any offense which occasions forfeiture, as manslaughter, must be pleaded with equal strictness as a plea of the same nature at common law.^ But if a plea goes to show that no title was ever vested in the plaintiff, though for that purpose it states an offense committed, conviction of the offense is not essential to the plea, and the same strictness is not required as in a case of forfeiture. Thus, in the Exchequer, to a bill seeking a discovery of the owners of a ship captured, and payment of ransom, the defendants pleaded that the captor was a natural bom subject, and the capture an act of piracy. Though the barons at first thought that the plea could not be supported unless the plaint- iff had been convicted of piracy, and the record of the conviction had been annexed to the plea, they were finally of opinion that as the plea showed that the cap- ture was not legal, and that therefore no title had ever been in the plaintiff, the plea was good, and they allowed ■■ See, however, 18 Geo. Ill, u. 60, that the plaintiff had taken the benefit s. 2 ; and the 43 Geo. Ill, c. 30, by of an act for the relief of insolvent which this incapacity is conditionally debtors. De Minckwitz v. Udney, 16 removed. Ves. 466. * 2 Atk. 399 ; v. Davis, 19 ' Quilter v. Mussendine, Gilb. Cas. , Ves. 81. in Eq. 228 ; Hitchins v. Lander, Coop. " Carleton v. Leighton, 3 Meriv. R. 34 ; Gait v. Osbaldeston, i Russ. 667. See Lowndes v. Taylor, I Madd. 158, in which the decision in s. c. re- 423; s. c. 2 Rose, 365, 432. It seems ported 5 Madd. 428, was overruled; a plea of the plaintiff's bankruptcy and see Ocklestone v. Benson, 2 Sim. & must be upon oath. Joseph v. Tuckey, Stu. 265. 2 Cox R. 44. See instance of a plea ' 2 Atk. 399. * This incapacity has been abolished by the stat. 10 Geo. IV, c. 7, s. 23. 326 ' PLEAS. it accordingly.' Pleas of want of title generally extend to discovery as well as to relief ' It cannot often be necessary to make defense on this ground by way of plea ; for if facts are not stated in the bill from which the court will infer a title in the plaintiff, though the bill does contain an asser- tion that the plaintiff has a title, the defendant may demur ; the averment of title in the bill being not of a fact, but of the consequence of facts. Thus, where a plaintiff" stated an incumbrance on a real estate, of which he was devisee, and averred that it was the debt of the testator, and prayed that it might be paid out of the testator's personal estate in ease of the real estate devised, the defendant having pleaded that the testator had done no act by which he made it his own debt, the plea was overruled, because, whether it was his debt or not was matter of inference from the facts stated in the bill, and therefore the proper defense was by demurrer.3 Accordingly the defendant afterwards demurred, and the demurrer was allowed.* VI. In treating of demurrers notice has been taken that, though a plaintiff" has an interest in the subject of a suit, and a right to institute a suit concerning it, yet he may have no right to call upon the defendant to answer his demands ; and it has been observed that this happens where there is a want of privity of title between the plaintiff" and the defendant.^ It would probably be difficult to frame a bill which was really liable to objection on this head so artfully as to avoid a demurrer. But if such a bill could be framed, it should seem that defense might be made by plea. ' Fall against , ist May, 1782. * Same cause, i8th July, 1786. ' Gilb. 229. ' See above, p. 251. " Tweddell v. Tweddell, 25th May, 1784, in Ciiancery. PLEAS. Z^l VII. A plea that the defendant is not the person he is alleged to be, or does not sustain the character which he is alleged to bear, is mentioned as a plea which may be supported.' It seems to have been con- sidered, as more convenient for a defendant under these circumstances to put in an answer alleging the mistake in the bill, and praying the judgment of the court whether he should be compelled further to answer the bill ; ^ but this in fact amounts to a plea, though it may not bear the title ; and a plea has been considered as the proper defense.^ * VIII. If a defendant has not that interest in the subject of a suit which can make him liable to the de- mands of the plaintiff, f and the bill alleging that he has or claims an interest avoids a demurrer, he may plead the matter necessary to show that he has no in- terest," if the case is not such that by a general dis- claimer he can satisfy the suit.^ Thus, where a witness to a will was made a defendant to a bill brought by the heir at law to discover the circumstances attending ' Prac. Reg. 326, Wy. ed. And see " I Ves. jr. 292 ; and see Ibid. p. 294, Griffith V. Bateman, Finch, 334. note. ^ Gary Rep. 61 ; Prac. Reg. 327, * Plummer v. May, I Ves. 426. Wy. ed. ; Att. Gen. v. Lord Hotham, i ' See the case of Turner v. Robin- Turn. R. 209. See below. Chap. II, son, i Sim. & Stu. 3. sec. 2, part 3. * Where a creditor of a testator files a bill stating that the defendant is the executor, and has proved the will, and that he sets up a voluntary assignment made by the testator to him ; and charging that whether he has proved the will or not, he has taken possession of the personal estate, and is accountable for the same ; and praying that the deed may be de- clared to be void, and that an account may be taken of the personal estate come to the hands of the defendant ; a plea that the defendant is not ex- ecutor is a good plea to the whole bill. (Hill v. Neale, 5 Law J. [0. S.] 144, V. C.) t A plea of a defective title by a vendor to a bill filed by a purchaser for a specific performance is bad. (Thomas v. Bering, 4 Law J. [N. S.] 149, M. R.) 328 PLEAS. the execution, and the bill contained a charge of pre- tepse of interest by the defendant, though a demurrer for want of interest was overruled because it admitted the truth of the charge to the contrary in the bill, yet the court declared an opinion that a defense might have been made by a plea/ IX; Though the subject of a suit may be within the jurisdiction of a court of equity, and the Court of Chancery may have the proper jurisdiction ; though the plaintiff may be under no personal disability, and may be the person he pretends to be, and have a claim of interest in the subject, and a right to call on the de- fendant concerning it, and the defendant may be the person he is stated to be, and may claim an interest in the subject which may make him liable to the plaint- iff's demands, with respect to which circumstances pleas have been already considered, still the plaintiff, by reason of some additional circumstance, may not be entitled in the whole or in part to the relief or as- sistance which he prays by his bill. The objections which may be made to the whole or any part of a suit, though liable to none of the objections before consid- ered, are principally the subject of those kinds of pleas which are commonly termed pleas in bar, and which are usually ranked under the heads of pleas of matter recorded, or as of record, in the court itself, or some other court of equity ; pleas of matters of record, or matters in the nature of matters of record, in some court not a court of equity ; and pleas of matters in pais. Pleas in bar of matters recorded, or as of record, ' Plummer v. May, i Ves. 426. This 238 ; s. c. r Ves. jr. 292 ; 7 Ves. 289, must have been a negative plea. And 290; I Ves. & Bea. 550; Turner v. see Cartwright v. Hately, 3 Bro. C. C. Robinson, i Sim. & Stu. 3. PLEAS. 329 in the court itself, or some other court of equity, may be, I. A decree or order of the court by which the rights of the parties have been determined,' or another bill for the same cause dismissed ;= 2. Another suit depending in the court, or in some other court of of equity, between the same parties for the same cause.^ Pleas of this nature generally go both to the discovery sought and the relief prayed by the bill. A decree,* determining the rights of the parties, and signed and enrolled, may be pleaded to a new bill for the same matter,* and this even if the party bring- ing the new bill was an infant at the time of the former decree ; ^ for a decree enrolled can only be altered upon a bill of review.* But the decree must be in its nature final, or afterwards made so by order, or it will not be a bar.' Therefore a decree for an account of principal and interest due on a mortgage, and for a foreclosure in case of non-payment, cannot be pleaded to a bill to redeem, unless there is a final order of foreclosure ; ^ nor can a decree which has been made upon default of the defendant in not appearing at the hearing be pleaded without an order making the decree absolute ; the terms of such a decree being always that it shall be binding on the defendant, unless on being served with a writ of subpoena for the purpose he shall show cause to the contrary.^ Upon a plea of this nature, so ' 3 Atk. 626. ° 3 Atk. 627. See above, pp. i8i, et ' Pritman v. Pritman, i Vem. 310 ; set^. 1 Atk. 571. ' See next page, notes 4 and 5. ' Foster v. Vasall, 3 Atk. 587. ' Senhouse v. Earl, 2 Ves. 450. * Rutland v. Brett, Finch R. 124 ; ' Ord. in Chan. 198, ed. Bea. And Mallock V. Galton, Dick. 65. see Halsey v. Smith, Mos. 186 ; Vene- <■ I Atk. 631 ; Gregory v. Moles- more v. Venemore, Dick. 93. worth, 3 Atk. 626; 3 Ves. 317. * A plea to a creditor's bill, of a decree obtained by other creditors in a former suit will be overruled, where that decree is less beneficial to the plaintiffs in the second suit than the decree they might obtain in such sec- ond suit. (Pickford v. Hunter, 5 Sim. 122.) 23° PLEAS. much of the former bill and answer must be set forth as is necessary to show that the same point was then in issue.' A decree or order dismissing a former bill for the same matter may be pleaded in bar to a new- bill ^ * if the dismission was upon hearing, and was not in terms directed to be without prejudice. ^ But an order of dismission is a bar only where the court de- termined that the plaintiff had no title to the relief sought by his bill ; and therefore an order dismissing a bill for want of prosecution is not a bar to another bilb And a decree cannot be pleaded in bar of a new bill unless it is conclusive ^ of the rights of the plaint- iffs in that bill, or of those under whom they claim.* Therefore a decree against a mortgagor, and order of foreclosure enrolled, were not deemed a bar to a bill by intervening incumbrancers to redeem, although the mortgagee had no notice of those incumbrances ; and the mortgagee having been long in possession, the ac- count taken in the former cause was not deemed con- clusive against the plaintiffs in the new bill, though under the circumstances the court, on overruling the plea and ordering the defendant to answer, limited the order by directing that the defendant should answer to charges of errors or omissions, but that the plaintiffs ' Child V. Gibson, 2 Atk. 603. But ' Brandlyn v. Ord, I Atk. 571 ; 14 see I Vern. 310. Ves. 232. ^ Pritman v. Pritman, I Vern. 310 ; ' See Coysgamew. Jones, Ambl. 613; Madge v. Brett, Finch, 46; Connell Collins c. Gough, 4 Gwill. T. C. 1294. V. Warren, lb. 239; Earl of Peter- " See Doyly w. Smith, 2 Cas. in Chan, borough V. Germaine, 6 Bro. P. C. I, 119; Godfrey v. Chadwell, 2 Vern. 601; Toml. ed. Atkinson v. Turner, 3 Barn. 74. ' Seymour v. Nosworthy, i Gas. in Chan. 155; Toth. 50. * Where a demurrer by one of the assignees of a bankrupt to a bill against the assignees for a general account of their dealings under the bankruptcy has been allowed, it may be pleaded by the other assignee in. bar of the suit. (^Tarleton v. Hornby, i Y. & C. Eq. Ex. 333.) PLEAS. 331 should not unravel the account at large before the hearing/ A decree must be signed and enrolled, or it can- not be pleaded in bar of a suit," though it may be insisted upon by way of answer. ^ But though it cannot be pleaded directly in bar of the suit for want of enrollment, it may perhaps be pleaded, to show that the bill was exhibited contrary to the usual course of the court, and ought not therefore to be proceeded upon.'* For if the decree appeared upon the face of the bill, the defendant might demur,^ a decree not signed and enrolled being to be altered only upon a rehearing,^ as a decree signed and enrolled can be altered only upon a bill of review.' If a bill is brought to impeach a decree on the ground of fraud used in obtaining it, which, as has been observed,^ may be done without the previous leave of the court, the decree may be pleaded in bar of the suit, with averments negativing the charges of fraud, supported by an answer fully denying them.^ Whether averments negativing the charges of fraud are necessary to a plea of this description appears to have been a question much agitated in recent cases ; '° ' Morrett v. Western, 15th July, and 7 Vin. Abr. 398, pi. 15 ; 3 P. Wms. 1710, in Chan, reported 2 Vern. 663. 95 ; Gilb. For. Rom. 58 ; Treatise on ^ Anon. 3 Atk. 809 ; Kinsey v. Kin- Frauds, c. 18, p. 220 ; Butcher v. Cole, say, 2 Ves. 577. at the Rolls, 26 June, 1786, cited i ' 2 Ves. 577. And see Charles v. Anstr. 99. See the cases of Sidney v. Rowley, 2 Bro. P. C. 485, Toml. ed. Perry, Parkinson !<. Lecras, Meadows z/. * See 2 Ves. 577, note ; Chan. Pleas, Duchess of Kingston, and Devie v. 89. Chester, mentioned in pages 338. 344, ' Wortley v. Birkhead, 3 Atk. 8og ; 346, 352, 363. And see 6 Ves. 596 ; 2 s. c. 2 Ves. 571; Lady Granville v. Sch. & Lefr. 727; 5 Madd. 330; 6 Ramsden, Bunbury, 56. Madd. 64. ° 2 Ves. 598. See above, pp. 187, '" Pope v. Bish, I Anstr. Exch. 59 ; igo. Edmundson v. Hartley, lb. 97. And ' Read v. Hambey, I Gas. in Chan, see Bayley v. Adams, 6 Ves. jr. 586. In 44; s. c. 2 F'reem. 179. See above, p. the cases in the Court of Exchequer it 329, note 5. seems to have been supposed that the ' Pages igo, 191. answer in support of the plea overruled ° Wichalse v. Short, 3 Bro. P. C. 558, the plea. But an answer can only over- Toml. ed. ; s. c. 2 Eq. Gas. Abr. 177, rule a plea where it applies to matter 332 PLEAS. upon which it may be observed that, without such averments, if the decree were admitted by the bill, nothing would be put in issue by the plea. The ques- tion in the cause must be, not whether such a decree had been made, but whether such a decree having been made, it ought to operate to bar the plaintiff's demand. To avoid its operation the bill must allege fraud in ob- taining it ; and to sustain it as a bar the fact of fraud must be denied and put in issue by the plea. For upon the question whether the decree ought to operate as a bar, the fact of fraud is the only point upon which issue can be joined between the parties; and unless the plea covers the fact of fraud, it does not meet the case made by the bill ; and on argument of the plea, the charge of fraud not being denied by the plea, must be taken to be true. If the bill states the decree only as a pretense of the defendant, which it avoids by stating that if any such decree had been made, it had been obtained by fraud, the decree must be pleaded, because the fact of the decree is not admitted by the bill ; and the charge of fraud must also be denied by the plea for the reasons before stated. If the bill states the decree absolutely, but charges fraud to im- peach it, yet the decree must be pleaded, because decree if not avoidable, is alone the bar to the suit ; and the fraud by which the bar is sought to be avoided must be met by negative averments in the plea, be- cause without such averments the plea would admit the decree to have been obtained by fraud, and would therefore admit that it formed no bar. When issue is joined upon such a plea, if the decree is admitted by whicli the defendant by his plea de- to be compelled to answer so much of clines to answer, demanding the judg- the bill. See Arnold's Case, Gi%For. ment of the court whether, by reason of Rom. 58. the matter stated in the plea, he ought PLEAS. 333 the bill, the only subject upon which evidence can be given is the fact of fraud. If that should be proved, it would open the plea on the hearing of the cause ; and the defendant would then be put to answer generally, and to make defense to the bill as if no such decree had been made. The object of the plea is to prevent the necessity of entering into that defense by trying first the validity of the decree. If the evidence of fraud should fail, the decree, operating as a bar, would determine the suit as far as the operation of the decree would extend. It has also been objected that a plea of the decree is a plea of the matter impeached by the bill ; but the frame of a bill in equity necessarily produces, in vari- ous instances, this mode of pleading.' If the bill stated the title under which the plaintiff claimed, without stating the decree by which it had been affected, the defendant might have pleaded the decree alone in bar. If the bill stated the plaintiff's title, and also stated the decree, and alleged no fact to im- peach it, and yet sought relief founded on the title concluded by it, the defendant might demur ; because upon the face of the bill the title of the plaintiff would appear to be so concluded. But as in the form of pleading in equity the bill may state the title of the plaintiff, and at the same time state the decree by which, if not impeached, that title would be concluded, and then avoid the operation of the decree by alleging that it had been obtained by fraud ; if the defendant could not take the judgment of the court upon the conclusiveness of the decree by plea upon which the matter by which that decree was impeached would alone 'See 3 P. Wms. 317, where Lord this mode of pleading, observing that it Chancellor Talbot is stated to have in- it was every day's practice, terrupted the counsel, who objected to 334 PLEAS. be in issue, he must enter into the same defense (by evidence as well as by answer) as if no decree had been made : and would be involved in all the expense and vexation of a second litigation on the subject of a former suit, which the decree, if unimpeached, had con- cluded. It is therefore permitted to him to avoid en- tering into the general question of the plaintiff's title as not affected by the decree, by meeting the case made by the plaintiff, which can alone give him a right to call for that defense, namely, the fact of fraud in obtaining the decree. This has been per- mitted to be done in the only way in which it can be done, by pleading the decree with averments denying the fraud alleged ; and those averments being the only matter in issue, they are necessarily of the very substance of the plea. The decree if obtained by fraud would be no bar; and nothing can be in issue on a plea but that which is contained in the plea; and every charge in the bill not negatived by the plea is taken to be true on argument of the plea. If there- fore the decree merely were pleaded, on argument of the plea, the charge of fraud must be taken to be true, and the plea ought therefore to be overruled ; but if on argument the plea were allowed, or if the plaintiff, without arguing, replied to the plea, no evidence could be given on the charges of fraud to avoid the plea, and the defendant proving his plea,' that is, proving the decree and nothing more, would be entitled to have the bill dismissed at the hearing." ' Sir Joseph Jekyll, M. R. 3 P. &c. When those pleadings were al- Wms. gs: lowed, the plaintiff might have stated ' Perhaps all the difficulties which his case, without suggesting that it had have arisen upon this subject have pro- been affected by any decree; if the de- ceeded from want of attention to the fendant pleaded a decree binding the form of pleadings in courts of equity, right, the plaintiff might have replied, especially since the disuse of special re- that the decree had been obtained by plications, rejoinders, sur-rejoinders, fraud, by which the plaintiff would have PLEAS. 335 As the averments negativing the charges of fraud are used merely to put the fact of fraud, as alleged by the bill, in issue on the plea, they may be expressed in the most general terms, provided they are sufficient to put the charges of fraud contained in the bill fully in issue. And as the plaintiff is entitled to have the an- swer of the defendant upon oath to any matter in dis- pute between them, in aid of proof of the case made by the bill, the defendant must answer to the facts of fraud alleged in the bill so fully as to leave no doubt in the mind of the court that upon that answer, if not controverted by evidence on the part of the plaintiff, the fact of fraud could not be established.' If the an- swer should not be full in all material points, the court may presume that the fact of fraud may be capable of proof in the point not fully answered, and may there- fore not deem the answer sufficient to support the plea as conclusive, and therefore may overrule the plea ab- solutely, or only as an immediate bar, saving the benefit of it to the hearing of the cause. But though the an- swer may be deemed sufficient to support the plea upon argument, the plaintiff may except to the answer, if he conceives it not to be so full to all the charges as to be free from exception ; or by amending his bill may require an answer to any matter which may not have been so extensively stated or interrogated to as the case would warrant, or to which he may apprehend admitted that the decree was a bar, if that there was something incongruous not capable of impeachment on the in a plea, and answer in support of the ground of fraud ; the defendant by re- plea, 6 Ves. .597. But this objection joinder would have avoided the charge seems to have arisen from a supposition of fraud, and sustained the decree ; and that the answer formed part of the de- then the issue would have been simply fense. It is no part of the defense, but on the fact of fraud. As to this class that evidence which the plaintiff has a ofpleas, see Gilbert's Forum Romanum, right to require, and to use to invali- 54-^4, Am. ed. See also the Dissertation date the defense made by the plea, upon on Pleading prefixed to this edition. argument of the plea, before other evi- ' It seems to have been imagined dence can be given. 336 PLEAS. that the answer, though full in terms, may have been in effect evasive. As the bill must be founded on the supposition that the plaintiff's title is not concluded by the decree, and the plea on the contrary supposition, the effect of the plea is, to conclude the whole case made by the bill, so far as it may be concluded by the decree, except the question of fraud ; and consequently all the ques- tions which might have been raised, if the decree had not been made, are put by the plea, if allowed, wholly out of the cause, unless the plea should be shown to be false in fact by evidence given on the issue taken upon it, and the matter of the plea thus opened upon the hearing. It is therefore a mistake to suppose that the plea, if sustained, would not shorten the cause, or lessen expense.' As the ground of this defense by plea of a decree is that the matter has been already decided, a decree of any court of equity, in its nature final, or made so by subsequent order, may be pleaded in bar of a new suit.'' 2. Another suit depending in the same or an- other court of equity for the same cause ^ is a good plea ; ■* * except, perhaps, in the case of a suit de- ' The argument which is contained Mos. 268 ; Pritman v. Pritman, I Vera, in the few preceding pages of the text, 310 ; Fitzgerald v. Fitzgerald, 5 Bro, P. and the notes thereto, has been adopted C. 567, Toml. ed; but, as to the au- and established by decided cases ; but thority of this particular case, except in these not relating to decrees, they will principle, see stat. 23 Geo. Ill, c. 28, be adduced hereafter in illustration of and stat. 39 & 40 Geo. Ill, c. 67, art. 8. the doctrines relating to the several See also Pitcher v. Rigby, 9 Pri. Ex. R. pleas or legal bars sought to be set 79. aside upon equitable grounds, with ref- ° Ord. in Chan. ed. Bea. 26, 176 ; erence to which they have been re- Crofts v. Wortley, I Cas. in Chan. 241 ; spectively determined. See, however, Foster v. Vassall, 3 Atk. 587 ; Bell w. here, 2 Ves. & B. 364 ; 6 Madd. 64, and Read, Ibid. 590; Murray v. Shadwell, 2 Sim. & Stu. 279. 17 Ves. 353. ' Geale v. Wyntour, Bunb. 211 ; * It seems, that the pendency of an- Wing V. Wing, 10 Mod. R. 102 ; Anon, other suit for the same cause, in a * A suit instituted by husband and wife against the trustees of her sep- arate property in respect of a fraud, cannot be pleaded in bar to a sub- PLEAS. ZZ7 pending in an inferior court of equity, the effect of which the defendant has avoided by going out of the jurisdiction of that court' The plea must aver that the second suit is for the same matter as the first ; and therefore a plea which did not ex- pressly aver this, though it stated matter tending to show it, was considered as bad in point of form, and overruled upon argument.^ The plea must also aver that there have been proceedings in the suit, as appear- ance, or process requiring appearance at the least.' It seems likewise regular to aver that the suit is still de- pending j-^ though as a plea of this nature is not usu- ally argued, but being clearly a good plea if true, is referred to the examination and inquiry of one of the masters of the court as to the fact,^ it has been held court of concurrent equity jurisdiction, the plea has been filed. Barn. 85. And cannot, before a decree has been made see on this subject generally, Urlin v. in such other suit, be pleaded in bar; , iVern. 332; i Ves. 545; Daniel see Houlditch v. Marquis of Donegall, v. Mitchell, 3 Bro. C. C. 544; Anon. I I Sim. & Stu. 491; but, that where the Ves. jr. 4S4; 2 Ves. & B. no ; Jackson parties in both courts are the same, it v. Leaf, i jac. & W. 22g. may be pleaded for the purpose of ob- ' See Morgan v. , i Atk. 408. taining a reference to a master, to in- See also Foster v. Vassall, 3 Atk. 587, quire whether the suits are for the same and Lord Dillon v. Alvares, 4 Ves. 357. matter; see Murray v. Shadwell, 17 " Devie against Lord Brownlow, in Ves. 353; and of getting a decision, Chan. 23d July, 1783, rep. Dick. 611. upon his report of the fact, as to the 'Anon. iVern. 318; Moor w. Welsh validity of the plea, and consequently a Copper Comp. i Eq. Cas. Abr. 39. determination of the question whether * 3 Atk. 589. the plaintiff should or should not be al- ' Ord. in Chan. ed. Bea. 176, 177 ; lowed to proceed in the suit in which 2 Ves. & Bea. no. sequent suit by her and her next friend against her trustees and her hus- band and another person as parties to the fraud, although the relief prayed in both suits is the same, for the first suit is considered as, the suit of the husband alone. (Reeve v. Dalby, 2 Sim. & Stu. 464.) In the case of a plea of a former suit depending, where the former suit is for relief in respect of legal and equitable waste, but no evidence has been entered into with regard to the equitable waste, and the decree makes no decision respecting it, and the latter suit is exclusively for relief in re- spect of equitable waste, a plea of the former suit depending is bad ; for the purpose sought to be attained by the latter suit cannot be attained by the former. (Newdigate v. Newdigate, 8 Law J. [O. S.} Ch. R. 35.) 33 338 PLEAS. that a positive averment that the former suit is de- pending is not necessary.'* And if the plaintiff sets down the plea to be argued, he admits the truth of the plea that a former suit for the same matter is depend- ing, and the plea must therefore be allowed ' unless it is defective in form.^ As the pendency of the former suit, unless admitted by the plaintiff, is made the im- mediate subject of inquiry by one of the masters, a plea of this kind is not put in upon oath."* It is not necessary to the sufficiency of the plea that the former suit should be precisely between the same parties as the latter. For if a man institutes a suit, and afterwards sells part of the property in ques- tion to another, who files an original bill touching the part so purchased by him, a plea of the former suit de- pending touching the whole property will hold.' So where one part owner of a ship filed a bill against the husband for an account, and afterwards the same part owner and the rest of the owners filed a bill for the same purpose, the pendency of the first suit was held a good plea to the last ; " for though the first bill was in- sufficient for want of parties, yet by the second bill ' Urlin v'. , 1 Vera. 332. Swanst. 239 ; Carrick v. Young, 4 Madd. " I Vern. 332 ; Anon, i Ves. jr. 484; 437. See 3 Atk. 589, as to defects in Daniel v. Mitchell, 3 Bro. C. C. 544. the form of such a plea. ° This is founded on a general order * i Vern. 332. This, however, can of the court, that the plaintiff shall not scarcely be deemed to extend to a case be put to argue such 1 plea, b;iit may of a suit depending in a foreign court, obtain, in the first ijistance, an order of And see Forster v. Vassall, 3 Atk. 587. reference to a master to inquire into ' Moor v. Welsh Copper Comp. I the truth of it. Ord. in Chan. ed. Bea. Eq. Gas. Abr. 39. 176, 177 ; Baker v. Bird, 2 Ves. jr. 672; " Durand v. Hutchinson, Mich. 1771, Murray v. Shadwell, 17 Ves. 353; 2 in Chan. Ves. & Bea. no; Carwick v. Young, 2 * A plea of proceedings in another court must show not only that the the subject-matter is the same, and the issue the same, but also that the object is the same ; and that the court is a court of competent jurisdiction ; and that the result of the proceedings therein would be conclusive, so as to bind every other court. (Behrens v. Sieveking, 2 My. & Cr. 602.) PLEAS. 339 the defendant was doubly vexed for the same cause. The course which the court has taken where the second bill has appeared to embrace the whole subject in dispute more completely than the first, has been to dismiss the first bill with costs, and to direct the de- fendant in the second cause to answer upon being paid the costs of a plea allowed,' which puts the case on the second bill in the same situation as it would have been in if the first bill had been dismissed before filing the second. Where a second bill is brought by the same person for the same purpose, but in a differ- ent right, as where the executor of an administrator brought a bill, conceiving himself to be the personal representative of the intestate, and afterwards pro- cured administration de bonis non, and brought another bill,^ the pendency of the former bill is not a good plea. The reason of this determination seems to have been, that the first bill being wholly irregular, the plaintiff could have no benefit from it, and it might have been dismissed upon demurrer. Where a decree is made upon a bill brought by a creditor on behalf of himself and all other creditors of the same person, and another creditor comes in before the master to take the benefit of the decree, and proves his debt, and then files a bill on behalf of himself and the other cred- itors, the defendants may plead the pendency of the former suit ; for a man coming under a decree is q^iasi a party .3 The proper way for a creditor in such a situ- ation to proceed, if the plaintiff in the original suit is dilatory, is by application to the court for liberty to conduct the cause.* ' Crofts w.Wortley.iCas.in Chan, 241. * See Powell w. Walworth, 2 Madd. ' Huggins V. York Build. Comp. 2 183; Sims v. Ridge, 3 Meriv. 458; Atk. 44. Edmunds v. Acland, 5 Madd. 31 ; ' Neve V. Weston, 3 Atk. 557; l Fleming v. Prior, 5 Madd. 423 ; Hand- Sim. & Stu. 361. " ford V. Storie, 2 Sim. & Stu. 196. 340 PLEAS. If a plaintiff sues a defendant at the same time" for the same cause at common law and in equity, the defendant after answer put in ' may apply to the court that the plaintiff may make his election* where he will proceed,' but cannot plead the pendency of the suit at common law in bar of the suit in equity .^ though the practice was formerly otherwise.* If the plaintiff shall elect to proceed in equity, the court will restrain his proceedipgs at law by injunction, and if he shall elect to proceed at law, the bill will be dismissed/ But if he should fail at law, this dismission of his bill will be no bar to his bringing a new bilP Pleas in bar of matters of record, or of matters in the nature of matters of record, in some court not be- ing a court of equity, hiay be — i, a fine ; 2, a recovery; 3, a judgment at law, or sentence of some other court. I. A plea of a fine and non-claim, though a legal bar, yet is equally good in equity 'f provided it is '3P. Wms. go; i Ball & B. Iig, vidual character, and can have in the 3lg ; Fisher v. Mee, 3 Meriv. 45 ; former only a part of the relief which Hogue V. Curtis, 1 Jac. & W. 449 ; he can obtain in the latter ; by institut- Browne v. Poyntz, 3 Madd. 24; Coup- ing the suit in .this court, he concludes land V. Bradock, 5 Madd. 14. himself from proceeding at law, and "3 P. Wms. go; Anon. I Ves. jr. therefore of course is not entitled to the 91; I Ball &B. 320; Pieters w. Thomp- privilege of election. Mills f. Fry, 19 son. Coop. R. 294. But there is a dis- Ves. 277 (1815). tinction in the practice where the ° 3 P. Wms. 90. And it should court is unable at once to see that seem the pendency of a suit in an eccle- it is a case of election. See Boyd v. siastical court, for payment of a legacy, Heinzelman, i Ves. & Bea. 381 ; 2 could not be pleaded to a bill for simi- Ves. & Bea. no; Mills v. Fry, 3 Ves. lar relief here. Howell v. Waldron, I & Bea. 9 (1814); V. , 2 Madd. Gas. in Chan. 85. 395 ; Amory v. Brodriclc, I J ac. R. * Ord. in Chan. ed. Bea. 177. 530, and the cases therein cited. In ° 3 P. Wms. go, note ; Mousley v. the instance of a mortgagee taking the Basnett, I Ves. & Bea. 382, note ; Fitz- usual bond for repayment of the mort- gerald v. Sucomb, 2 Atk. 85. gage money, he is not bound to elect, ° Countess of Plymouth v. Bladon, but may proceed, under certain restric- 2 Vern. 32. tiops, upon his separate securities at ' Thynne v. Townsend, W. Jones, law and in equity. Schoole v. Sail, I 416 ; Salisbury v. Baggott, I Gas. in Sch. & Lefr. 176. But where the plaint- Chan. 278; 2 Swanst. 610; Watkins iff sues in both jurisdictions in an indi- v. Stone, 2 Sim. & Stu. 560. * On this subject, see i Perkins' Daniell's Ch. Pr. 791, et seq. t A fine and non-claim cannot be pleaded t6 a bill to prevent the set- PLEAS. 341 pleaded with proper averments.' Where a title is merely legal, though the defect is apparent upon the face of the deeds, yet the fine will be a bar in equity ; and a purchaser will not be affected with notice so as to make him a trustee for the person who had the right. For a defect upon the face of title deeds is often the occasion of a fine being levied." And even a fine levied upon bare possession, with non-claim, may be a bar in equity, if a legal bar, though with notice at the time the fine was levied.' But with respect to equitable titles there is a distinction. For where the equity charges the land only, the fine bars,+ but where it charges the person only in respect of the land,' the fine does not bar.^ Therefore if a man pur- chases from a trustee, and levies a fine, he stands in the place of the seller, and is as much a trustee as the seller was,^ provided he has notice of the trust, or is a ' Story V. Lord Windsor, 2 Atk. ° Brereton v. Gamul, 2 Atk. 240. 630; Hildyard v. Cressy, 3 Atk. 303 ; * Gifford v. Phillips, cited 2 Swanst. Page !<. Levar, 2 Ves. jr. 450; Butler w. 612. Every, l Ves. jr. 136 ; s. C. 3 Bro. C. C. " Earl Kenoul v. Grevil, cited 2 80; Dobson V. Leadbeater, 13 Ves. Swanst. 611; s. c. i Cas. in Chan. 295. 230. The object of the averments is of " i Cas. in Chan. 278 ; 2 Swanst. 611; course to show that it was an effectual and see 2 Atk. 390 ; i Sch. & Lefr. 381. fine. 13 Ves. 233. ' 2 Atk. 631 ; Kennedy v. Daly, i ' 2 Atk. 631. Sch. & Lefr. 355. ting up of an outstanding term. For the person in v/hom the legal estate in a satisfied term is vested is a trustee for the real owner of the estate ; and a court of equity will prevent the termer from setting up the term, so as to prevent the trial at law of the question who is the real owner of the estate. It will not take upon itself to decide that question by deciding upon the operation of the fine and non-claim ; because if it should decide against the title by fine and non-claim, that title might be again tried at law. (Leigh v. Leigh, i Sim. 349.) And to a bill by a plaintiff claiming as heir at law, and seeking a dis- covery, and an injunction to restrain the setting up of an outstanding term, a plea of a fine and conveyance in favor of the person under whom the defendant claims is a good defense both to the discovery and to the relief. (Gait v. Osbaldeston, i Russ. 158.) 342 PLEAS. purchaser without consideration/ So if the grantee of a mortgagee levies a fine, that will not discharge the equity of redemption.^' But there are cases of equi- table as well as legal titles, in which a fine and non- claim will bar, notwithstanding notice at the time of levying the fine.^ It has been determined, however, that if a fine is levied where the legal estate is in trus- tees for an infant, and the trustees neglect to claim, the infant, claiming by bill within five years after he attains twenty-one, shall not be barred."* But perhaps this should be understood as referring to the case of a fine levied with notice of the title of the infant. ^ • Where a title to lands is merely equitable, as in the case of an agreement to settle lands to particular uses, claim to avoid the fine must be by subpoena.^ The pendency of a suit in equity will therefore in equity prevent in many cases the running of a fine.'' Upon the whole, wherever a person comes in by a title opposite to the title to a trust estate, ^ or comes in under the title to the trust estate, for a valuable consideration, without fraud, or notice of fraud, or of the trust,' a fine and non-claim may be set up as a bar to the claim of a trust.'" When a fine and non-claim are set up as a bar to a claim of a trust, by a person claiming under the same title, it is not sufficient to aver that at the time the fine was levied the seller of the estate, being seized, ' Gilb. For, Rom. 62 ; Bovy v. 309 ; Earl v. Countess of Huntingdon, Smith, 2 Caa in Chan. 124; s. c. i Ibid. 310, note G. / Vern. 60, and I Vern. 84 ; on rehearing, " Salisbury v. Baggott, I Cas. in Chan, see I Vern. 144, the decree was re- 278; s. c. 2 Freem. 2i, and more accu- versed ; but see i Sch. & Lefr. 379, 380. rately reported, from Lord Nottingham's '2 Atli. 631; contra, 2 Freem. 21, MSS. 2 Swanst. 603. 6g ; but see i Sch. & Lefr. 378, 380. ' 2 Atk. 389, 390 ; Pincke v. Thomy- = 2 Atk. 361 ; Hildyard v. Cressy, 3 croft, i Bro. C. C. 289 ; S. c. 4 Bro. P. Atk. 303 ■, Shields v. Atkins, 3 Atk. C. 92, Toml. ed.; i Sch. & Lefr. 432. 560. ' Stoughton V. Onslow, cited 2 Swanst. * Allen V. Sayer, 2 Vern. 368. 615; and I Freem. 311. ' Wych V. E. I. Comp. 3 P. Wms. » i Sch. & Lefr. 380. '° Gilb. For. Rom. 63. PLEAS. 343 or pretending to be seized, conveyed ; but it is neces- sary to aver that the seller was actually seized. It is not, indeed, requisite to aver that the seller was seized in fee ; an averment that he was seized ut de libera te7iemento, and being so seized a fine was levied, will be sufficient' A fine and non-claim may be pleaded in bar to a bill of review. " 2. To a claim under an entail, a recovery duly suf- fered, with the deed to lead the uses of that recovery, may be pleaded, if the estate limited to the plaintiff", or under which he claims, is thereby destroyed. 3* 3. If the judgment of a court of ordinary jurisdic- tion has finally determined the rights of the parties, the judgment may in general be pleaded in bar of a bill in equity. ■• Thus where a bill was brought by a person claiming to be son and heir of Joscelin, Earl of Lei- cester, and alleged that the earl, being tenant in tail of estates, had suffered a recovery, and had declared the use to himself and a trustee in fee, and that the plaintiff" ' 2 Atk. 630 ; 2 Sch. & Lefr. 99. And Jurisd. of the Court of Chan. ; Hunby see the cases cited above, p. 341, note i. v. Johnson, i Rep. in Chan. 243 ; Bluck ^ Lingard v. GrifEn, 2 Vern. 189. v. Elliot, Finch, 13; Pitt v. Hill, Finch, ° Att. Gen. v. Sutton, I P. Wms. 754; 70; Temple v. Baltinglass, Finch, 275 ; Salkeld against Salkeld, 1763, before Cornell z/. Ward, Finch, 239 ; Wilcox w. Lord Northington ; Brown v. William- Sturt, I Vern. 77 ; Bissell v. Axtell, 2 son, Trin. 1772, before Lord Bathurst. Vern. 47; Penvill v, Luscombe (1728) * See Throckmorton v. Finch, 4 Co. rep. 2 Jac. & W. 201 ;.3 Bro. C. C. 72; Inst. 86; s. c. cited also in a tract pub- I Sch. & Lefr. 204 ; Ord. in Chan. 19, lished at end of I Rep. in Chan, on Ed. Bea. * Where a plaintiff claims as heir at law of a person who devised es- tates tail, reserving the ultimate reversion to her own right heirs, and the bill alleges that no valid recovery was suffered, or if it were, that the prop- erty was so settled that the plaintiff is entitled as heir of the testator ; a plea which sets forth the substance of the recovery and of the deeds mak- ing the tenant to the prsecipe and leading the uses of the recovery, show- ing that a recovery v(ras suffered by the tenant for life and the ultimate remainder-man in tail, to the use of another person in fee, is a good de- fense, although not supported by any answer. (Plunkett v. Cavendish, I Russ. & My. 713.) 344 PLEAS. had brought a writ of right to recover the lands, but the defendant had possession of the title deeds, and intended to set up the legal estate which was vested in the trustee, and prayed a discovery of the deeds, and that the defendant might be restrained from setting up the estate in the trustee, the defendant pleaded, as to the discovery of the deeds and relief, judgment in her favor in the writ of right ; and averred that the title in the trustee, which the bill sought to have removed, had not been given in evidence ; and the plea was allowed/ In this case the bill was brought before the trial in the writ of right, and the plaintiff had proceeded to trial without the discovery and relief sought by his bill for the purposes of the trial. The plea was subsequent to the judgment. It may be doubted therefore whether the averment that the title in the trustee had not been given in evidence on the trial of the writ of right was necessary, as the judgment was a bar, as a release sub- sequent to the filing of the bill would have been ; and if the plaintiff could have avoided the effect of the judgment because the title in the trustee had been given in evidence, it should seem that that fact, to- gether with the fact of the judgment, ought to have been brought before the court by another bill in the nature of -a bill for a new trial, either as a supple- mental bill, or as an original bill, the former bill being dismissed." To a bill to set aside a judgment, as obtained against conscience, ^ the defendant has been per- ■ Sidney, styling himself Earl of p. 54; Gilb. For. Rom. 56; and the Leicester, against Perrj', in Chan. 23d Tract on the Jurisdiction of the Court July, 1783. of Chancery, comprising the order of ' Respecting the dispute in the time the king (James I) on the subject, pub- of Lord Ellesmere, raised by Lord lished at the end of I Rep. in Chan. ed. Coke, upon the question whether a 1715, and that order at end of Cary's court of equity could give relief after a Rep. ed. 1650. judgment at law, see 3 Blackst. Comm. ° 2 Ves. jr. 135, PLEAS. 345 mitted to plead the verdict and judgment in bar;' but it may be doubted whether in this case the de- fendant might not have demurred to the bill, as there does not appear to have been any charge in the bill requiring averment to support the plea. A sen- tence of any,'' even a foreign court, ^ may be a proper defense by way of plea; but the court pro- nouncing the sentence must at least have had full jurisdiction to determine the rights of the parties.-* * If there is any charge of fraud, or other circumstance shown as a ground for relief, the judgment or sentence cannot be pleaded,^ unless the fraud or other circum- stance, the ground upon which the judgment or sen- tence is sought to be impeached, be denied, and thus put in issue by the plea, and the plea supported by a full answer to the charge in the bill.* Upon this prin- ciple the Court of Exchequer determined upon a bill brought by insurers of part of the property taken on board the Spanish ships at Omoa. The bill charged that the navy, on whose behalf, as captors, the defend- ants had insured, were not the real captors, or not the only captors ; that the Spanish ships struck to the land forces ; and that although the Court of Admiralty 'Williams v. Lee, 3 Atk. 223. And Atk. 215 ; s. c. 2 Ves. 556; White v. see Sewel v. Frees'ton, i Cas. in Chan. Hall, 12 Ves. 320. 65; Shuter v. Gilliard, 2 Cas. in Chan. * Gage v. Bulkeley, 2 Atk. 215. 250; Armsted v. Parker, Finch, 171 ; 'See 2 Cas. in Chan. 251 ; and see Huddlestone v. Asbugg, Finch, 171; the tract and order referred to in last Anon. 3 Rep. in Chan. 25. page, at the end of I Rep. in Chan, and ' See the cases referred to page 343, of Cary's Rep. ; and see 2 Ves. jr. 135. note 4. ° 6 Ves. 596. As to the necessity of ' See Newland v. Horseman, i Vern. these averments in the plea, and the 21 ; s. c. 2 Cas. in Chan. 74 ; ISurrows support of the plea by answer, see pp. V. Jemineau, Sel. Cas. in Chan. 69 ; S. C. 331 et seq. Mos. I ; Dick. 48 ; Gage v. Bulkeley, 3 * A plea of a foreign judgment must show that the general fact which is stated by the plaintiff, as the ground of equity was decided by a foreign court of competent jurisdiction not to be a ground of equity. (Garcias v. Ricardo, 14 Sim. 265). 346 ' PLEAS. had condemned the ships taken as prizes to the navy, yet that condemnation had been obtained in conse- quence of the king's procurator general having with- drawn a claim made on behalf of the crown at the instance of the land forces, and of an agreement be- tween the sea and land forces to make a division of' the treasure ; and that the sentence was therefore, as against the plaintiffs, the insurers, not conclusive. The defendants pleaded the sentence of the admiralty, both to discovery of the facts stated in the bill, and to the relief prayed. The plea was in many respects in- formal, but the court was of opinion that the sentence thus impeached could not be pleaded in bar to the dis- covery sought by the bill, and that, as a bar to relief, it ought to have been supported by averments nega- tiving the grounds on which it was impeached by the bill' A will and probate, even in the common form in the proper ecclesiastical court, which is in the nature of a sentence,' is a good plea to a bill by persons claiming as next of kin to a person supposed to have died intestate.3 And if fraud in obtaining the will is charged, that is not a sufficient equitable ground to im- peach the probate ; for the parties may resort to the ecclesiastical court, which is^ competent to determine upon the question of fraud.* But where the fraud prac- ticed has not gone to the whole will, but only to some particular clause, or if fraud has been practiced to obtain , the consent of next of kin to the probate,^ the courts ' Parkinson against Lecras, 23d Feb. P. C. 437, Toml. ed. ; Meadows v. Duch- 1781- ess of Kington, Mich. 1777, reported " See I Atk. 516. Ambl. 756; 5 Ves. 647; Griffiths v. ' Jauncy v. Sealey, 1 Vern. 397. Hamilton, 12 Ves. 298. * Archer v. Mosse, 2 Vern. 8 ; Nelson ' As to the kind of relief which may V. Oldfield, 2 Vern. 76 ; Att. Gen. v. be given where a probate has been ob- Ryder, 2 Cas. in Chan. 178 ; Plume w. tained by fraud, see Barnesley z/. Powel, Beale, i P. Wms. 388 ; 2 P. Wms. 287; i Ves. 284. 2 Atk. 324 ; Kerrick v. Bransby, 7 Bro. PLEAS. 347 of equity have laid hold of these circumstances to de- clare the executor a trustee for the next of kin.' Where there are no such circumstances the probate of the will is a clear bar to a demand of personal estate ;^ and where a testator died in a foreign country, and left no goods in any other countiy, probate of his will ac- cording to the law of that country was determined to be sufficient against an administration obtained in England.3 Pleas in bar of matters in pais only sometimes go both to the discoveiy sought, and to the relief prayed by the bill, or by some part of it ; sometimes only to the discovery, or part of the discovery ; and sometimes only to the relief, or part of the relief Pleas of this nature (which may go both to the dis- covery and relief sought by the bill, or by some part thereof, but which sometimes extend no farther than the relief) are principally : i. A plea of a stated ac- count ; 2. Of an award ; 3. A release ; 4. Of a will or conveyance, or some instrument controlling or aifecting the rights of the parties ; 5. A plea of any statute which may create a bar to the plaintiff's de- mand, as the statute for prevention of frauds and per- juries, or the statutes for limitation of actions, which maybe considered as. a plea of matter in pais ; for though the statute itself is usually set forth in the plea, yet that perhaps is unnecessary, and the substance of the plea consists in the averment of matter necessary to bring the case within the particular statute ; and therefore if those matters appeared on the face of the ' Harriot v. Marriot, in Exch. I Stra. ' I2 Ves. 307. 666, and argument of Ld. Ch. Baron ' Jauncy v. Sealey, I Vern. 397. Gilbert. Gilb. Cas. in Chan. 203; Ambl. 762, 763. 348 PLEA& bill itself it may be presumed a demurrer would hold, though this has been doubted. I. A plea of a stated account is a good bar to a bill for an account/ It must show that the account was in writing, or at least it must set forth the bal- ance.^ If the bill charges that the plaintiff has no counterpart of the account, the account should be an- nexed by way of schedule to the answer, that if there are any errors upon the face of it the plaintiff may have an opportunity of pointing them out^ If error'* or fraud = is charged ^ it must be denied by the plea as well as by way of answer ; ^ * and if neither error nor fraud is charged, the defendant must by the plea aver ' Anon. 2 Freem. 62 ; i Vem. 180; v. Vemon, 4 Ves. 411; 5 Ves. 837; Dawson t. Dawson, i Atk. I ; Sumner Kinsman v. Barker, 14 Ves. 262. V. Thorpe, 2 Atk. i ; Penvil' v. Lus- ' As to its interference where the combe (1728), rep. 2 Jac. & W. zoi ; settlement of an account has been ac- Irvine v. Young, I Sim. & Stu. 333. companied with fraud, see Vemon 0. " 2 Atk. 399. Vawdry, 2 Atk. iig ; Newman v. Payne, ^ Hankey v. Simpson, 3 Atk. 303. 2 Ves. jr. 199 ; Wharton v. May, 5 Ves, * On the subject of this court's in- 27 ; Beaumont v. Boultbee, 5 Ves. 485 ; terference, where there is error in a set- s. c. 7 Ves. 599; II Ves. 358; Lang- tied account, see Anon. 2 Freem. 62 ; staffe v. Taylor, 14 Ves. 262 ; IDrew v. Proud V. Combes, 2 Freem. 1S3 ; s. c. Power, i Sch. & Lefr. 182. 3 Rep. in Chan. 18 ; I Cas. in Chan. 55 ; "9 Ves. 265, 266. 2 Freem. 1B3; Nels. 100; and I Eq. ' Gilb. For. Rom. 56; I Cas.' in Cas. Abr. 12; Wright v. Coxon, i Cas. Chan. 299; 2 Freem. 62; 6 Ves. 596; in Chan. 262 ; Bedell v. Bedell, Finch Clarke v. Earl of Ormonde, I Jac. R. R. 5; Dawson v. Dawson, I Atk. I; 116. And, it seems, if the plaintiff Bourke V. Bridgeman, i Barnard, 272 ; allege that he has no counterpart of the Roberts v. Kuffin, 2 Atk. 112; Pit w. stated account, the defendant must an- Cholmondeley, 2 Ves. 565 ; Johnson v. nex a copy thereof to his plea. Hankey Curtis, 3 Bro. C.C. 266 ; Grayw. Minne- v. Simson, 3 Atk. 303. And see above, thorpe, 3 Ves. 103; Lord Hardwicke pp. 33i«^j£^. * A plea of a legal bar (such as a full, true, and settled account, and a release) is defective if it does not explicitly negative, so as to give the plaintiff an issue on the plea to try, circumstances which are charged by the bill (such as fraud and collusion), and which, if true, would render the legal bar insufficient. And this is the case even though such matters are positively denied by an answer in support of the plea. (Phelps v. Sprowle, I My. & K. 231, decided by Lord Brougham, C, overruling the decision of the Vice Chancellor; Story Eq. Plea. s. 180, 754; 2 Sch. & Lefr. 635; 3 Johns. Ch. 384; 7 Johns. Ch. 134; s. C. Cowen, 360; I Daniel, Ch. PI. & Tr. 618, n. 3, 4 Am. ed.) PLEAS. 349 that the stated account is just and true, to the best of his knowledge and belief/ The delivery up of vouch- ers at the time the account was stated seems to be a proper averment in a plea of this nature,^ if the fact was such.3* 2. An award may be pleaded to a bill to set aside the award and open the account;"* and it is not only good to the merits of the case, but likewise to the dis- covery sought by the bill.= But if fraud or partiality is charged against the arbitrators,* the charge must not only be denied by way of averment in the plea, but the plea must be supported by an answer- showing the arbitrators to have been incorrupt and impartial ; ' and any other matter stated in the bill as a ground for impeaching the award must be denied in the same manner. 3. If the plaintiff, or a person under whom he ' 3 Atk. 70 ; I Eq. Cas. Abr. 3g ; 2 tered into after bill filed, see Dryden v. Sch. & Lefr. 727. And see Matthews Robinson, 2 Sim. & Stu. 529 ; and see V. Walwyn, 4 Ves. I18 ; Middleditch v. Rowe v. Wood, I Jac. & W. 348 ; s. c. Sharland, 5 Ves. 87. 2 Bligh P. C. 595. ° Gilb. For. Rom. 57; Walker v. 'As instances, see Ward w. Periam, Consett, Forrest's Exch. R. 157; Hod- cited 2 Atk. 396; 2 Ves. 316; s. c. re- der V. Watts, 4 Pri. Exch. R. 8. And ported I Turn. 131, note. Chicot v. see Wharton v. May, 5 Ves. 27. Lequesne, 2 Ves. 315; 2 Ves. jr. 135; ' 2 Atk. 252. Seethe case of Clarke Reynell v. Luscombe, l Turn. 135, n. ; V. Earl of Ormonde, I Jac. R. 116. Goodman v. Sayers, 2 Jac. & W. 249; ' Lingood v. Croucher, 2 Atk. 395 ; Auriol v. Smith, I Turn. 121 ; Dawson S. C. as Lingood v. Eade, 2 Atk. 501; v. Sadler, I Sim. & Stu. 537. Burton v. Ellington, 3 Bro. C. C. 196. ' 2 Atk. 396 ; 6 Ves. 594, 596 ; 2 ' Tittenson v. Peat,' 3 Atk. 529 ; Ves. & Bea. 364 ; and see Allardes v. Anon. 3 Atk. 644. As to a plea of an Campbell, rep. i Turn. 133, note ; s. c. award under an agreement to refer the Bunb. 265 ; Rybott v. Barrell, 2 Eden, matters in dispute to arbitration, en- 131. * A plea, by a trustee, of a settled account and release, to Inquiries as to the execution of a trust, is bad, if it does not aver that the matters in- quired after appear from the account. And a plea of a settled account and release to a bill by a cestui que trust against a trustee will not protect the trustee from a discovery of vouchers. (Clarke v. The Earl of Ormonde, Jac. 116.) 350 ' PLEAS. claims, has released the subject of his demand, the defendant may plead the release in bar of the bill,'* and this will apply to a bill praying that the release may be set aside. ° In a plea of a release the defend- ant must set out the consideration upon which the re- lease was made. ^ A plea of a release therefore cannot extend to a discovery of the consideration ; and if that is impeached by the bill, the plea must be assisted by averments covering the grounds on which the consid- eration is so impeached. Thus, to a bill stating various transactions between the defendant and the testator of the plaintiff, and imputing to those transactions fraud and unfair dealing on the part of the defendant, and impeaching accounts of the transactions delivered by the defendant to the testator on the ground of errors, omissions, and unfair and false charges, and also im- peaching a purchase of an estate conveyed by the tes- tator to the defendant in " consideration of part of the defendant's alleged demands, and praying a general account, and that the purchase of the estate might be set aside as fraudulently obtained, and the conveyance might stand as a security only for what was justly due ' Bower v. Swadlin, i Atk. 294 ; in his plea, and by an answer to the Taunton v. Pepler, 6 Madd. 166; same effect. Lloyd &. Smith, I Anstr. Clarke v. Earle of Ormonde, I Jac. 116; Exch. R. 258; Freeland v. Johnson, I And see Roche v. Morgell, 2 Sch. & Anstr. Exch. R. 276 ; Walter v. Glan- Lefr. 721. ville, 5 Bro. P. C. 555, Toml. ed.; 2 ' Pusey V. Desbouverie, 3 P. Wms. Sch. & Lefr. 727; 6 Madd. 64; 2 Sim. 315. And with regard to this latter & Stu. 279. f proposition, it may be remarked, that it " Gilb. For. Rom. 57; Griffith v. is in like manner necessary that the de- Manser, Hardr. 168 ; 2 Sch. & Lefr. fendant should deny the equitable cir- 728 ; and see Walter v. Glanville, 5 cumstances charged for the purpose of Bro. P. C. 555, Toml. ed. impeaching the release, by averments * To a bill by a husband and wife for property limited to the separate use of the wife, a plea of a release by the husband is a good plea. (Stooke V. Vincent, i Coll. 527.) t See also Parker v. Alcock, i Y. & J. 432. PLEAS. 351 from the testator's estate to the defendant, a plea of a deed of mutual release, extending to so much of the bill as sought a discovery and prayed an account of dealings and transactions prior to and upon the day of the date of the deed of release, and all relief and dis- covery grounded thereupon, and stating the deed to have been founded on a general settlement of accounts on that day, and to have excepted securities then given to the defendant for the balance of those accounts which was in his favor, and averring only that the deed had been prepared and executed without any fraud or undue practice on the part of the defendant, was over- ruled. The consideration for the instrument was the general settlement of accounts ; and if those accounts were liable to the imputations cast upon them by the bill, ' the release was not a fair transaction, and ought not to preclude the court from decreeing a new ac- count. The plea, therefore, could not be allowed to cover a discovery tending to impeach those accounts, and the fairness of the settled accounts was not put in issue by the plea, or supported by an answer denying the imputations charged in the bill.* The plea indeed was defective in many other particulars necessary to support it against the charges in the bill ; and to some parts of the case made by the bill the release did not extend.'' A release pleaded to a bill for an account ' Though an account be stated un- See the cases cited above, p. 348, note der hand and seal, yet if there appear 4. any mistake in it, the court will relieve. ' Roche v. Morgell, 2 Sch. & Lefr. 721. * In an answer in support of a plea, the defendant must answer all those matters in a bill, which, if true, would displace the plea, whether the bill does or does not expressly charge those matters to be evidence of the facts to which the plea relates. (Chadwick v. Broadwood, 3 Beav. 530.) 352 PLEAS. must be under seal ; ' a release not under seal must be pleaded as a stated account only.==* 4. To a bill brought upon a ground of equity by an heir at law against a devisee, to turn the devisee out of possession, the devisee may plead the will, and that it was duly executed.^ But in cases of this kind where the bill has also prayed a receiver, a plea ex- tending to that part of the bill has been so far over- ruled, as it might be necessary for the court in the progress of the cause to appoint a receiver.'* Upon a bill filed by an heir against a person claiming under a conveyance from the ancestor, the defendant may plead the conveyance in bar of the suit. To a bill by one partner in trade against his copartner for discovery and relief relative to the partnership transactions, a plea of the articles of partnership, by which it was agreed that all differences which might arise between the partners should be referred to arbitration, and that no suit should be instituted in law or equity until an oflFer should have been made to leave the matter in difference to arbitration, and that offer had been re- fused, has been allowed.^ This case has been much questioned ; and it now seems to be determined that such an agreement cannot be pleaded in bar of a suit,^ ' But it need not be signed. Taun- ' Half hide v. Penning, 2 Bro. C. C. ton V. Pepler, 6 Madd. 166. 336 ; contra, Wellington v. Mackintosh, .' Gilb. For. Rom. 57. 2 Atk. 569. ' Anon. 3 Atk. 17 ; Anstis v. Dows- " Satterly v. Robinson, Exch. 17 Dec. ing, cited 2 Ves. 361 ; Meadows v. ■s.-j^\ ; Michell -v. Harris, 4 Bro. C. C. Duch. of Kingston, Mich. 1777, reported 311; S. c. 2 Ves. jr. 129 ; Street w. Rig- Ambl. 756; 3 Meriv. 171. by, 6 Ves. jr. 815; 14 Ves. 270; Waters * Anon. 3 Atk. 17, and Meadows v. v. Taylor, 15 Ves. 10. Duch. of Kingston. But see 2 Ves. 362, 363- * The correct mode of pleading a release in bar of an account is to state it as being under seal ; but it would seem that this is not indispensa- ble. (Phelps V. Sprowle, i My. & K. 231.) PLEAS. 353 nor will the court compel a specific performance of the agreement." Indeed it seems impossible to main- tain that such a contract should be specifically per- formed, or bar a suit, unless the parties had first agreed upon the previous question, what were the matters in diflFerence, and upon the powers to be given to the arbitrators, amongst which the same means of obtain- ing discovery upon oath, and production of books and papers, as can be given by a court of equity might be essential to justice. The nomination of arbitrators also must be a subject on which the parties must pre- viously agree ; for if either party objected to the person nominated by the other, it would be unjust to compel him to submit to the decision of the person so objected to as a judge chosen by himself It must also be determined that all the subjects of difference, whether ascertained or not, must be fit subjects for the determination of arbitrators, which, if any of them involved important matter of law, they might not be deemed to be. 5. The statute for prevention of frauds and per- juries^ may be pleaded in bar of a suit to which the provisions of that act apply .^ This form of plead- ing generally requires negative averments to support the defense.* Thus, to a bill for discovery and execu- ' 6 Ves. jr. 818 ; Milnes v. Gery, 14 C. C. 565 ; Dick. 42 ; Moore v.. Ed- Ves. 400. wards, 4 Ves. 23 ; Bowers v. Gator, 4 " 29 Car. II, c. 3. Ves. 91 ; 2 Ves. & B. 364. And where ' Gilb. For. Rom. 61 ; Bawdes v. there are not equitable circumstances Amhurst, Prec in Chan. 402; O'Reilly stated in the bill, which might operate V. Thompson, 2 Cox, 271; Gunter v. to prevent the relief sought by the Halsey.Annbl. 586; Jordan w.Sawkins, plaintiff being barred by the statute, 3 Bro. C. C. 388; s. c. I Ves. jr. 402; but the; agreement is alleged to have Main v. Melbpum, 4 Ves. 720. As to been in writing, and facts are charged the equitable grounds upon vifhich a in evidence thereof, aegative averments case may be exempted from the opera- are also requisite to the defense. Evans tion of the statute of frwds, see 3 Ves. v. Harris, i Ves. & B. 361 ; and see 38, note a. Jones v. Davis, lCi Vqs. 262. ■* Stewart v. Careless, cited 2 Bro. 23 554. PLEAS. tion of a trust, the statute, with an averment that there was no declaration of trust in writing, may be pleaded,' though in the case cited the plea was overruled by an answer, admitting, in effect, the trust. To a bill for a specific performance of agreements, the same statute, with an averment that there was no agreement in writing signed by the parties, has been also pleaded.' It has been understood that this plea extended to the discovery of a parol agreement, as well as to the per- formance of it, except where the agreement had been so far performed that it might be deemed a fraud on the party seeking the benefit of it, unless it was com- pletely carried into execution ,3 and cases have been de- termined accordingly.* This has of late been the subject of much discussion, and some contrariety of decision. In one case^ the court appeared to have conceived that the courts of equity in determining cases arising upon this statute had laid down two prop- ositions founded on rules of equity, and had given a construction to the act accordingly, which amounted to this, that the act was to be construed as if there had been an express exception to the extent of those rules in favor of courts of equity ; and that no action was to be sustained except upon an agreement in writing, signed according to the requisition of the statute, and except upon bills in equity, where the party to be charged confessed the agreement by answer, or there ■ Cottington v. Fletcher, 2 Atk. 156. v. Jones, 1 Swanst. 172, and the au- ' Mussell V. Cooke, Prec. in Chan, thorities therein referred to. 533; Child i/. Godolphin, cited 2 Bro. ' Hollis v. Whiteing, I Vem. 151 ; C. C. 566; s. c. Dick. 39; Child v. Whaley v. Bagnal, I Bro. P. C. 345. Comber, 3 Swanst. 423, n. ; Hawkins Toml. ed. ; and see Whitbread v. Brock- V. Holmes, i P. Wms. 770 ; Clerk v. hurst, r Bro. C. C. 404 ; s. C. 2 Ves. & Wright, I Atk. 12. B. 153, n. ; Whitchurch v. Bevis, 2 Bro. " That this is the construction put C. C. 559. upon acts of part performance, see I ' Whitchurch v. Bevis, in Chan. 8th Sch. & Lefr. 41 ; 3 Meriv. 246; Morphett Feb. 1786, reported 2 Bro. C. C. 559- PLEAS. 355 was a pait performance of the agreement. It was therefore determined that to the fact of the agreement the defendant must answer. But the court, afterwards, upon a rehearing, allowed the plea.' In subsequent cases this subject' was much discussed, and the question was particularly considered, whether, if the defendant admitted by answer the fact of a parol agreement, but insisted on the protection of the statute, a decree could be pronounced for performance of the agreement without any other ground than the fact of the parol agreement thus confessed. At length it seems to have been decided, that though a parol agreement be con- fessed by the defendant's answer, yet if he insists on the protection of the statute no decree can be made merely on the ground of that confession ;° and it may now, apparently, be concluded that a plea of the stat- ute cannot in any case be a bar to a discovery of the fact of an agreement ; and that, as the benefit of the statute may be had if insisted on by answer, there can be no use in pleading it in bar of relief. Whether the same rule would be applied to a confession of a trust by an answer, which may be considered as a declara- tion of the trust in writing, signed by the party, as indeed the confession of a parol agreement by an- swer might also be deemed, seems to be an import- ant question, not agitated in the cases decided with respect to other agreements, and upon which it may be very difficult to make a satisfactory distinction. In the cases in which it was formerly considered that a plea of this statute was the proper defense, it was con- ceived that any matter charged by the bill which • ' Whitchurch v. Bevis, on rehearing, ' i Bro. C. C. 416 ; Whitchurch v. Hil. vac. 1789, principally on the au- Bevis, 2 Bro. C. C. 559 ; 4 Ves. jr. 23, thority of Whaley w. Bagnal, I Bro. P. 24; 6 Ves. 37 ; 12 Ves. 471 ; 15 Ves. C. 345, Toml. ed. 375- 356 PLEAS. might avoid the bar created by the statute must be denied, generally, by way of averment in the plea, and particularly and precisely by way of answer to support the plea. But according to one ease,' if any such mat- ter were charged in the bill, it became impossible to plead the statute in bar ; the court having determined that denial of the matter so charged made the plea double,^ and therefore informal ; and it may now be doubtful whether a plea of the statute ought in any case (except perhaps the case of a trust) to extend to any discovery sought by the bill, and indeed whether it ought not to be deemed a needless and vexatious proceeding if confined to relief ^ The statute for limitation of actions ^ is likewise a good plea.' * But if the bill charges a fraud, and that the fraud was not discovered^ till within six years before filing the bill, the statute is not a good plea, unless the defendant denies the fraud,^ or avers that the fraud, if any, was not discovered within six years before filing the bill.^ And though the statute of ■ Whitbread v. Brockhurst, l Bro. Lacon, 2 Atk. 395 ; Earl of Strafford v. C. C. 404; s. C. 2 Ves. & B. 153, note. Blakeway, 6 Bro. P. C. 630, Tpml. ed.; ' On the subject of double pleas, see Barber v. Barber, 18 Ves. 286, and the hereafter, pp. 381-384. cases therein cited. ' As to the effect of insisting on the " See 2 Sch. & Lefr. 631 and 633, statute by answer, or by plea, and and following pages, and the cases whether necessary, see Newton v. Pres- therein cited; and 2 Ball & B. n8. ton, Free, in Chan. 103. See also Kirk ' Bicknell v. Gough, 3 Atk. 558. and Webb, Prec. in Chan. 84. And see ° South Sea Comp. v. WymondseU, , Rowe V. Teed, 15 Ves.. 372; 18 Ves. 3P. Wms. 143; Sutton w. Earl of Scar- 182; Morphett v. Jones, I Swanst. 172. borough, 9 Ves. 71. But according to * 21 Jac. I, c. 16. Whitbread v. Brockhurst, I Bro. C. C. ' Gilb. For. Rom. 61 ; Wych w. East 404, and 2 Ves. &' Bea. 1'53,'n., this India Comp. 3 P. Wms. 309 ; Lacon v. should be considered a double ple% * A new statute of limitations (3 & 4 W. IV, c. 27) has been passed ; but it only applies to real property and to money charged upon or payable out of real estate, and to legacies. This statute expressly extends to suits in equity. (See sect. 24.) It has been amended by stat. 7 Will. IV and I Vict. c. 28. The statute of limitations may be pleaded in bar to a bill to prevent the setting up of an outstanding term. (Jermy v. Best, i Sim. 373.) PLEAS. 357 limitations is a bar to the claim of a debt, it was formerly determined not to be a bar to a discovery wheii the debt became due ; for if that had been set forth, it would appear to the court whether the time limited by the statute was elapsed,' but later decisions have been to the contrary.'' These decisions are stated to have been founded on a rule adopted of late years, that where a demurrer to relief would be good, the same ground of demurrer would extend to the dis- covery on which the relief prayed was founded ; and applying this rule, originally confined to demurrers, to pleas also.3 It may be doubted whether, in this exten- sion of the rule to pleas, the difference between a plea and demurrer has been sufficiently considered. A de- murrer founds itself on the bill, and asserts no matter of fact the truth of which can be disputed. A plea, on the contrary, asserts a fact the truth of which is put in issue by the plea. When therefore the statute of limitations is pleaded to a demand, and the question to be tried on the issue joined upon the plea is, whether the debt became due within six years before the filing of the bill, it is denying the plaintiff the benefit of that discovery in aid of proof which is al- lowed in all other cases, to hold *hat a plea of the statute of limitations, with an averment that the cause of action, if any, occurred six years before the filing of the bill will be a bar to a discovery of the truth of that averment.'* In the case of mofiey received by the de- fendant for the use of the plaintiff, and where the sums ' Mackworth v. Clifton, 2 Atk. 51 ; ' See the distinction taken on the 2 Sch. & Left. 635. subject in James v. Sadgrove, i Sim. & . ° Sutton V. Earl of Scarborough, 9 Stu. 4. Ves. jr. 71, and other authorities there * This argument is supported by tited. And see Baillie v. Sibbald, 15 Cork v. Wilcock, 5 Madd. 328 ; and 1 Ves. 185 ; Cork v. Wilcock, 5 Madd. Sim. & Stu. 6. 328. 358 PLEAS. received, as well as the times when they were respect- ively received, may rest in the knowledge of the de- fendant only, it may amount to a complete denial of justice to hold that a plea of the statute of limitations, with such an averment, is a bar to any discovery as to the sums received, and when received, and of whom, and as to entries in books and other papers, which discovery might enable the plaintiff to prove the false- hood of the plea by witnesses and production of papers as well as by the defendant's answer. Where a par- ticular special promise is charged to avoid the opera- tion of the statute," the plaintiff must deny the promise charged by averment in the plea,"" as well as by answer to support the plea.^ Where the demand is of any- thing executoiy, as a note for payment of an annuity, or of money at a distant period, or by installments, the defendant must aver that the cause of action * hath not accrued within six years, because the statute bars only as to what was aptually due six years before the action brought.^ * Upon a bill for discovery of a title, charg- ing fraud, and praying possession, the statute of limit- ations alone is not a good plea to the discoveiy, so far as the charge of fraud extends, for the defendant must ' See Andrews v. Brown, Prec. in '2 Strange, 1291. Chan. 385. 6 3 Atk. 71. See above, p. 356, note " Anon. 3 Atk. 70. But this, accord- 8. And see the case of Hony v. Hony, ing to Whitbread v. Brockhurst, i Bro. i Sim. & Stu. 568, in which the fact of C. C. 404, would be a double plea. an intermediate acknowledgment of the = See on this subject, Bayley v. plaintiff's right having been made, de- Adams, 6 Ves. 586 ; 5 Madd. 330 ; and feated the plea. 1 Sim. & Stu. 6. ^ * Where a suit for an account of rents and profits has abated before decree by the death of the plaintiff, and a bill of revivor is not filed till a lapse of more than six years from the time of the abatement, a plea of the statute of limitations (i Jac. I, c. 16) will be overruled, if it does not state that six years have elapsed since representation was taken out to the plaintiff. (Perry v. Jenkins, i My. & Cr. 118.) PLEAS. 355 answer to the charge of fraud,' and the plea must put the fraud in issue. The statute of limitations may be pleaded to a bill to redeem a mortgage ^ * if the mort- gagee has been in possession twenty years ; 3 and in- deed a demurrer has been allowed in this case ■♦ where the possession has appeared upon the face of the bill s though some cases seem to be the contrary.^ To a bill, on an equitable title to presentation to a living, seeking to compel the defendant to resign, plenarty for six months before the bill was filed may be pleaded in bar, the statute of Westminster the second,' being con- sidered for this purpose as a statute of limitation, in bar of an equitable as well as of a legal right.^ But if a qtiare impedit is brought before the six months are expired, though the bill is filed after, it may be in some cases a ground for the court to interfere,' and conse- quently plenarty would not in such cases be pleadable in bar. The statute of limitations may also be pleaded to a bill of revivor, if the proper representative does not proceed within six years after abatement of a suit, ' Bicknell v. Gough, 3 Atk. 558; 2 ' Aggas v. Pickerell, 3 Atk. 225 ; 2 Sch. & Lefr. 635. ' Ves. jr. 280. - On the question whether the stat- * 3 P. Wms. 287, note. See also i ute itself applies to a case of this kind, Vern. 418, and Beckford v. Tobin, ab. or whether the rule that twenty years' p. 213, n. ; 2 Sch. & Lefr. 638. And possession by the mortgagee, subject to see Hodle v. Healey, i Ves. & Bea. 536, the usual exceptions of infancy, &c., and the cases therein cited, without his doing any act which is to " Edsell v. Buchanan, 4 Bro. C. C. be regarded as an acknowledgment that 254. the relation of debtor and creditor still " 3 Atk. 225, 226, and the authorities subsists, has been adopted ii) courts of there cited, equity, in conformity with the provis- ' 13 Edw. I, c. 5. ions of the statute, see i Cox, 149 ; 2 * Gardiner v. Griffith, 2 P. Wms. Sch. & Lefr. 630, 632 ; i Ball & B. 167; 404 ; 3 Atk. 459 ; Boteler v. AUington, 17 Ves. 97, 99 ; 19 Ves. 184 ; 2 Jac. & 3 Atk. 453. And see Mutter v. Chan- W. 145, 187 ; and see Blewit v. Thomas, veil, i Meriv. 475. 2 Ves. jr. 669. ° 2 P. Wms. 405. * As a foreclosure suit is in substance a suit for the recovery of the money secured by the mortgage, the statute of limitations (27 Will. IV, c. 27, s. 40) may be pleaded to the bill. (Dearman v. Wyche, 9 Sim. 570.) 36o PLEAS. provided there has been no decree/* for a decree being in the nature of a judgtnent the statute of limitations cannot be applied to it." But where the consequence of reviving proceedings to carry a decree into execution would have been to call on representa- tives to account for assets after a great length of time, and under peculiar circumstances of laches, a bill of revivor and supplement for those purposes was dis- missed. ^ Although suits in equity are not within the words of the statute, the courts of equity generally adopt it as a positive rule, and apply it by parity of reason to cases not within iff In general they also ' HoUingsliead's Case, i P. Wms. ' Hercy v. Dinwoody, 4 Bro. C. C. 742 ; Comber's Case, I P. Wms. 766 ; 257. 2 Sch. & Lefr. 633 ; I Ball & B. 531. ' Lord Mansf. 2 Burr. 961; 2 Atk. ' I P. Wms. 744 ; 2 Sch. & Lcfr. 633. 611 ; 3 Bro. C. C. 340, note; i Sch. & Lefr. 428. * See note *, p. 358. t See Baldwin v. Peach, i Y. & C. Eq. Ex. 453, and note * to p. 358. A plea that the title of the plaintiff, or of the person through whom he claims, accrued at a particular time, and that the possession of the prop- erty and the receipts of the rents and profits thereof have been averse to him and the person through whom he claims ever since that time, will be overruled, if it does not set forth the circumstances constituting such adverse possession ; because adverse possession may consist in various things ; and if none of these are specified, the plaintiff may have no precise knowledge of the defense which he is to meet. And if a defendant puts in a piea of adverse possession, and the bill specifically charges that the de- fendant has documents in his possession which prove certain facts, and such facts, if proved, would tend to negative such adverse possession, the defendant must deny the possession of those documents ; and if the bill contains any other statement or charge tending to negative the plea of ad- verse possession, such statement or charge must be denied; (Hardman v. EUames, 2 My. & K. 732.) But a plea of the statute of limitations need not negative the usual general allegation that the defendant has in his custody documents relat- ing to the matters contained in the bill. (Forbes v. Skelton, 8 Sim. 325.) Where a bill contains an allegation of matter which would- remove the legal bar of the statute of limitations, if the defendant pleads the legal bar, without fully negativing that allegation by an answer, the plea will be over- ruled. (Foley V. Hill, 3 My. & Cr. 475.) PLEA& 361 hold that unless thfe defendant claims the benefit of the statute by plea or answer, he cannot insist upon it in bar of the plaintiff's demand;' but notwithstanding, the courts will, in cases which will allow of the exer- cise of discretion, use the statute as a rule to guide that discretion ;° and will also sometinles resort to the pol- icy of the ancient law, which in many cases limited the demand of accruing profits to the commencement of the suit. 3 Any other public statute which may be a bar to the demands of the plaintiff may be pleaded, with the averments necessary to bring the case of the defendant within the statute, and to avoid any equity which may be set up against the bar created by the statute.-* A particular statute may also be pleaded in the same manner. Thus, to a bill impeaching a sale of lands in the fens by the conservators under the stat- utes for draining the fens, the defendant pleaded the statutes, and that the sale was made by virtue of and according to those statutes, and the plea was allowed.5 X. Supposing a plaintiff to have a full title to the relief he prays, and the defendant can set up no de- fense in bar of that title, yet if the defendant .has an equal claim to the protection of a court of equity to ' I Atk. 494. ' On this subject see Pulteney v. ■' I Atk. 494. Courts of fequity, it Warren, 6 Ves. 73 ; Pettiward v. Pres- seems, in respect of legal titles and de- cott, 7 Ves. 541. mands, are bound by the statute (2 Sch. * See instances of a plea of the stat- & Lefr. 630, 631; and see Hony v. ute of maintenance, 32 Hen. VIII, c. g, Hony, I Sim. & Stu, 568) ; but, in re- s. 3, Hitchins v. Lander, Coop. 34 ; spect of equitable titles and dettiands; Wall v. Stubbs, 2 Ves. & Bea. 354 ; and are only influenced in their determina- another example of the proposition in tion by analogy to it. 1 Sch. & Lefr. the text, Ocklestone v. Benson, 2 Sim; 428; 2 Sch. & Lefr. 632; 10 Ves. 466; & Stu. 265. And see De Tastet v. 15 Ves. 496 ; 17 Ves. 97; I Ball & B. Sharpe, 3 Madd. 51. llg, 166; 2 jac. & W. 163, and follow- " Brown v. Hamond, 2 Chan. Cas. ing pages, particularly p. 175 ; aiid 2 249. Jac. & W. 192. 362 PLEAS. defend his possession, as the plaintiff has to the assist- ance of the court to assert his right, the court will not interpose on either side/ This is particularly, the case where the defendant claims under a purchase or mort- gage for valuable consideration without notice of the plaintiff's title, which he may plead in bar of the suit.'* Such a plea must aver that the person who conveyed or mortgaged to the defendant was seized in fee, or pretended to be seized.^f and was in possession,'' if the conveyance purported an immediate transfer of the possession at the time when he executed the purchase or mortgage deed.^ It must aver a convey- " See 2 Ves. jr. 457, 458, and the an- z/. Lee, 9 Ves. 24 ; I Ball & B. 171; 2 thorities there referred to ; and see the Ball & B. 303. case of Gait v. Osbaldeston, 5 Madd. ' 3 P. Wms. 281 ; Story v. Lord 428; s. c. I Russ. 158. One exception Windsor, 2 Atk. 630; 17 Ves. 250. has however been made in favor of the particulars of which it consists, the defendant may plead that another person is heir or personal representative, or that the person alleged to be dead is living/ ' III. It has been already observed that if a claim of interest is alleged by a bill against a person who has no interest in the subject, he cannot by demurrer pro- tect himself from a discovery, and must resort either to a plea or disclaimer;'' by either of which means it should seem he may protect himself from making by answer that discovery which he may properly be re- quired to make if called upon as a witness.^ In some cases, however, the court has allowed a defendant to protect himself, by answer denying the charge of in- terest, from answering to matters to which he may be afterwards called upon to answer in the character of a witness ; and perhaps, in justice to those against whom he may afterwards be called upon to give evidence as a witness, he ought not to be previously examined to the same matters upon a bill, under the pretense of an interest which he has not. ' Ord against Williamson, Trin. ' But it does not appear to be set- 1773 ; Ord V. Huddlestone, Dick. 510. tied that a bankrupt could by plea pro- And see Gait v. Osbaldeston, i Russ. tect himself from discovery. See I 158 ; s. C. 5 Madd. 428. Ves. & Bea. 550.* " Page 284. And see i Ves. 426. relief. (Glascott v. The Governor and Company of the Copper Miners of England, 11 Sim. 305.) * See supra, pp. 253, 254. But see Griffin v. Archer, 2 Anst. 478. To a bill for the delivery up of bills of exchange which the plaintiff had been fraudulently induced by the drawer to accept without a consideration, the drawer cannot plead that he has become bankrupt since the filing of the bill. (Mackworth v. Marshall, 3 Sim. 368.) PLEAS. 371 IV. The situation of a defendant may render it improper for a court of equity to compel a discovery, I, because the discovery may subject him to pains and penalties ; 2, because it will subject him to a forfeiture, or something in the nature of a forfeiture ; 3, because it would betray the confidence reposed in him as a counsel, attorney, or arbitrator ; 4, because he is a pur- chaser for a valuable consideration without notice of the plaintiff's title. I. It has been already observed, that no person is bound to answer so as to subject himself to punish- ment, in whatever manner that punishment arises, or whatever is the nature of the punishment' If, there- fore, a bill requires an answer which may subject the defendant to any pains and penalties,* or tends to accuse him of any crime, and this is not so apparent upon the face of the bill that the defendant can demur, he may by plea set forth by what means he may be liable to punishment, and insist he is not bound to answer the bill, or so much thereof as the plea will cover.'' Thus to a bill brought for discovery of marriage, where the fact, if true, would have subjected the party ' Page 289. See 2 Ves. 245 ; 2 ' Bird v. Hardwicke, i Vem. 109 ; Swanst. 214, 216 ; Bird v. Hardwicke, Claridge v. Hoare, 14 Ves. 59. I Vem. 109 ; 11 Ves. 525. * If in the interval between the filing and the arguing of a plea that the discovery sought would expose the defendant to a penalty, the period elapses within which the penalty can be sued for, the plea will be over- ruled. (The Corporation of Trinity House Strond v. Burge, 7 Law J. [O. S.] 44, V. C.) Where a tenant undertakes to pay an additional rent, in case he shall do or not do certain acts, though such additional rent be in some passages of the lease designated a penalty, it is not considered as a penalty so as to protect the tenant from answering to a bill of discovery as to such acts. (Jones V. Green, 3 Y. & J. 290.) 372 PLEAS, to punishment in the ecclesiastical court for incest, the defendant pleaded matter to show that the mar- riage, if real, was incestuous, and would subject the parties to pains and penalties.' And where a bill was brought against a woman claiming as widow of a person dead, alleging that before her marriage with the deceased she was married to another person, who was living at the time of her marriage with the de- ceased, the defendant pleaded that marriage to the dis- covery of the supposed first marriage, and insisted that she was not compellable to answer to the fact of the first marriage, as it would tend to show her guilty of bigamy.^ So to a bill for a discovery whether the de- fendant had become a purchaser of an estate of which the supposed seller was not in possession, the defend- ant pleaded the statute against selling or contracting for any pretended rights or titles.^ And to a bill brought by insurers for a discovery of what goods had been shipped on board a vessel, the defendant pleaded the statutes which made it penal to export wool. He was, however, directed to answer so far as to discover what goods were on board the vessel besides wool.'* But where the discovery sought was not of a fact which could subject the defendant to any penalty, though connected with another fact which might, as, where the question was whether the defendant had a legitimate son, the defendant was compelled to answer. For the discovery of that fact would not subject him to a penalty, though the discovery of his marriage with the mother of the son might, and therefore he was not compelled to discover the marriage.' ' Brownsword v. Edwards, 2 Ves. " Sharp v. Carter, 3 P. Wms. 375. 243 ; 14 Ves. 65. « Duncalf v. Blake, I Atk. 52. ' 5 Bro. P. C. 102, Toml. ed. ' Finch v. Finch, 2 Ves. 491. PLEAS. 373 2. It has been also' observed, that no person is bound to answer so as to subject himself to any for- feiture, or to anything in the nature of a forfeiture.'' If this is not apparent on the bill, the defense must be made by way of plea. Thus where a bill was brought to discover whether the defendant had assigned a lease, he pleaded to the discovery a proviso in the lease, making it void in case of assignment.^ And to a bill seeking a discovery whether a person under whom the defendant claimed was a Papist, the defend- ant pleaded his title, and the statute of 1 1 & 1 2 Will. Ill disabling Papists.-** But such a plea will only bar the discovery of the fact which would occasion a for- feiture. Therefore, where a tenant for life pleaded to a bill for discovery, whether he was tenant for life or not, that he l^ad made a lease for the life of another, which, if he was tenant for his own life only, might occasion a forfeiture, the plea was overruled.' So upon a bill charging the defendant to be tenant for life, and that he had committed waste, it was determined that he might plead to the discovery of the act which would occasion the forfeiture, the waste, but that he could not plead to the discovery whether he was tenant for life or not.^ Upon an information by the attorney general on behalf of the crown, to discover whether the defendant was an alien, and whether her child was an alien, and where born, it was held the defendant was bound to discover whether she was herself an ' Page 292. s. c. Bunb. 346 ; Harrison v. Southcote, " I Atk. 527. And see Parkhurst v. 528 ; s. c. 2 Ves. 389. Lowten, i Meriv. 391. " Weaver v. Earl of Meath, 2 Ves. ' Fane v. Atlee, i Eq. Cas. Abr. 77. 108. * Smith V. Read, i Atk. 526 ; 3 Atk. " 2 Ves. 109. 457; Jones v. Meredith, Com. R. 661 ; * The disabilities of Papists from holding property are removed by the Stat. 10 Geo. IV, c. 7, s. 23. 374 PLEAS. alien, the legal disability of an alien not being a pen- alty or forfeiture ; and that she was also bound to dis- cover whether her child was an alien, and where born, as she had a chattel interest in the property in ques- tion in trust, eventually, for the crown, if her child was an alien/ In all cases of forfeiture, if the plaintiff is entitled alone to the benefit of the forfeiture,' and waives it by his bill, the defendant will be compelled to make the discovery required. And though the plaintiff is not entitled to the benefit of the forfeiture, yet if the defendant has by his own agreement bound himself not to insist on being protected from making the discovery, the court will compel him to make it.^ In some cases the legislature has expressly provided that the parties to transactions made illegal by statute shall be compellable to answer bills in equity for dis- covery of such transactions ; and in such cases a de- fendant cannot protect himself from making the dis- covery thus required by pleading the statute which may subject him to penalties in consequence of the discovery.'* 3. If a bill seeks a discovery of a fact from one whose knowledge of the fact was derived from the confidence reposed in him as counsel, attorney, or arbi- trator, he may plead in bar of the discovery that his knowledge of the fact was so obtained.^ * ' Att. Gen. v. Duplessis, Parker, * Bancroft v. Wentworth, 3 Bro. C. 144; s. c. I Bro. P. C 415; Daubigny C. II. See, however, Bullock ». Rich- V. Davallon, Anstr. 462. ardson, II Ves. jr. 373 ; Billing v. ' South Sea Comp. v. Bumpstead, Flight, i Madd. 230. Mosely, 75 ; s. c. I Eq. Cas. Abr. 77. '^Bulstrode v. Lechmore, I Gas. in ' Mosely, 77 ; and the cases there Chan. 277 ; s. c. 2 Fr'eem. 5 ; and see cited; African Comp. ly. Parish, 2 Vern. Legard v. Foot, Finch, 82; Sandfordw. 244. Remington, 2 Ves. jr. 189 ; Wright v. * As to this subject, see the present editor's [Smith] note* to p. 396 infra. PLEAS. 575 4, If a defendant is a purchaser for a valuable con- sideration, without notice of the plaintiff's title, a court of equity will not in general compel him to make any discovery which may affect his own title/ Thus if a bill is filed for discovery of goods pur- chased of a bankrupt, the defendant may plead that he purchased them bona fide for a valuable consid- eration, paid before the commission of bankrupt was sued out, and before he had any notice of the bank- ruptcy.'' Pleas have been hitherto considered with reference only to original bills, and of these a certiorari bill, from the nature of the proceedings upon it, will not in general admit of a plea.^ But the same grounds of plea will hold in many cases to the several other kinds of bills according to their respective natures ; and some of them, as already observed, admit of a peculiar defense which may be urged by way of plea. Thus if a bill of revivor is brought without suffi- cient cause to revive the suit against the defendant, and this is not apparent on the bill, the defendant may plead the matter necessary to show that the plaintiff" is not entitled to revive the suit against him.-^ Or if the plaintiff" is not entitled to revive the suit at all, though a title is stated in the bill, so that the defendant cannot demur, the objection to the plaintiff's title may also be taken by way of plea. Indeed it seems to have been thought that a defendant could only object to Mayer, 6 Ves. 280; Richards v. Jack- Chan. Rep. 66, where a plea to a certio- son, 18 Ves. 472 ; i Sch. & Lefr. 226 ; rari bill of a decree in the inferior court Lowten v. Parkliurst, 2 Swanst. 194 ; is mentioned. and Harvey v. Clayton, and other cases * Harris v. Pollard, 3 P. Wms. 348 ; reported, 2 Swanst. 221, note. s. c. 2 Eq. Cas. Abr. 2 ; Huggins v. ' 2 Ves. jr. 458 ; and see above, pp. York Building Comp. 2 Eq. Cas. Abr. 3. 361 et seq. ; 3 Atk. 302. A person made a defendant by a bill of ' Perrat v. Ballard, 2 Cas. in Chan, revivor cannot support, as a defense, a 72 ; Heyman v. Gomeldon, Finch, 34 ; plea previously set up by the original Abery v. Williams, i Vern. 27. defendant, and overruled. Samuda v. ' See, however, Cook v. Delebere, 3 Furtado, 3 Bro. C. C. 70. n^ PLEAS. revivor by way of plea or demurrer,' and there may be great convenience in thus making the objection. For if the defendant objects by answer merely, the point can only be determined by bringing the cause regularly to a hearing; but if the objection is taken by plea or demurrer, it may in general be immediately determined in a summary way. Howevpr, if a defend- ant objects by answer only,* or does not object at all, yet if it appears to the court that the plaintiff has no title to revive the suit against the defendant, he can take no benefit from it.'' If a person entitled to revive a suit does not proceed in due time, he may be barred by the statute for Hmitation of actions, which may be pleaded to a bill of revivor afterwards filed. ^ If a sup- plemental bill is brought upon matter which arose be- fore the original bill was filed, and this is not apparent on the bill, the defendant may plead that fact.-* And if a bill is amended by stating a matter arisen subse- quent to the filing of the bill, and which consequently ought to have been the subject of a supplemental bill, advantage may be taken of the irregularity by way of plea, if it does not sufficiently appear on the bill to found a demurrer;^ but if the defendant answers, he waives the objection to the irregularity, and cannot make it at the hearing. * f ' Harris v. Pollard, 3 P. Wms. 348. ' See Lewellen v. Mackworth, 2 Atk. ° Harris v. Pollard, 3 P. Wms. 348. 40 ; Baldwin v. Mackown, 3 Atk. 817. ° HoUingshead's Case, I P. Wms. 742; ' See Brown v. Higden, i Atk. 291; and see 2 Sch. & Left. 632, et seq., and Jones v. Jones, 3 Atk. 217. the cases cited ; and Earl of Egremont ° Belchier. v. Pearson, at the Rolls, ■u. Hamilton, I Ball & B. 516. 13th July, 1782. * To prevent a suit from being revived, either a plea or a demurrer must be put in to the bill of revivor. ^ An answer insisting that the plaintiff has no right to revive is not sufficient : on the contrary, the putting in of an answer is submitting to the revivor. (Lewis v. Bridgman, 2 Sim. 465.) t A plea that a plaintiff in a supplemental bill, as well as in an original bill, has disposed of his share and interest in a company on behalf of the PLEAS. m A cross-bill differing in nothing from the first spe- cies of bills, with respect to which pleas in general have been considered, except that it is always occa- sioned by a former bill, it is not liable to any plea which will not hold to the first species of bills. And a cross-bill in general is not liable to some pleas which will hold to the first species of bills ; as pleas to the jurisdiction of the court, and pleas to the person of the plaintiff, the sufficiency of which seem both affirmed by the original bill ; unless the cross-bill is exhibited in the name of some person alone, who is alone incapable of instituting a suit, as an infant, a feme covert, an idiot, or a lunatic. ' It has been already mentioned " that a part of the constant defense to a bill of review, for error apparent on a decree, has been said to be by a plea of the de- cree ;3 but that a demurrer seemed to be the proper defense, and that the books of practice gave the form of a demurrer only to such a bill* Where any matter beyond the decree, as length of time, ^ a purchase for a valuable consideration, or any other matter, is to be offered against opening of the enrollment, that matter must be pleaded.* And if a demurrer to a bill of re- ' See above, p. 298, note i. ° Hartwell v. Townsend, 2 Bro. P. ' Page 298. C. 107, Toml. ed. ; and see Gorman v. ' Dancer v. Evett, i Vern. 392 ; Car- M'Cullock, 5 Bro. P. C. 597, Toml. ed. lish V. Cover, Nels. 52. As instances in which the error alleged * And see Needier!'. Kendall, Finch, was not in the body of the decree, see 468. Cranborne v. Dalmahoy, i Ch. Rep. ° Gregor w. Molesworth, 2 Ves. 109 ; 231; Smith v. Turner, I Vern. 273; but see above, p. 299. and see 2 Ves. 48S ; and Bradish v. Gee, Ambl. 229. members of which the original and supplemental bills were filed, and that at the time of filing the bill, he had no interest whatever in any of the pro- ceedings, is not a good plea to such supplemental bill, where the relief sought by it is only a modification or alteration of the relief in the original suit, and where the original and supplemental bills ought therefore to be considered as one bill. (Small v. • Attwood, i Y. & C. Ex. 39.) 378 PLEAS. view has been allowed, and the order allowing it is enrolled, it is an effectual bar to a new bill of review ' on the same grounds, and may be pleaded accordingly. To a bill of review of a decree for payment of money, it has been objected by plea that according to the rule of the court " the money decreed ought to have been first paid ; but the rule appears to have been dispensed with on security given ;3 and as the bill of review would not stay process for compelling payment of the money, it may be doubted whether the objection was properly so made. A bill of review, upon the discov- ery of new matter, seems liable to any plea which would have avoided the effect of that matter if charged in the original bill.* It seems to have been doubted whether the fact of the discovery of the matter thus alleged to support a bill of review, can be traversed by plea after the court upon evidence of the fact has given leave to bring the bill, even if the defendant could traverse the fact by positive assertion of some fact which would demonstrate that the matter was within the knowledge of the party, so that he might have had the benefit of it in the original suit. But if the fact of the discovery is in issue in the cause, it ought to be proved, to entitle the plaintiff to demand the judgment of the court on the matter alleged, as ground for reviewing the decree ;■• and it may conse- quently be disproved by evidence on the part of the defendant. Upon a supplemental bill in the nature of a bill of review of a decree not signed and enrolled, 'Denny v. Filmer, 2 Cas. in Chan. ' Ord. in Chan. Ed. Bea.3. 133; s. C. I Vern. 135; i Vern. 417; » Savile v. Darcy, 2 Freem. 172; Pitt V. Earl of Arglass, 1 Vern. 441; s. C. I Cas. in Chan. 42. Wools w. Tucker, 2 Vern. 120. * See p. 186. * See Daniel Ch. Plead. & Prac. 1584, 4th Am. ed., by Perkins. PLEAS. 379 upon the alleged discovery of new matter, it has been said, that if the defendant can show that the allegation is false, he must do so by plea, and that it is too late to insist upon it by answer;' but as the bill must allege the fact of discovery, and that fact must be the ground of the proceeding, it should seem that It is equally liable to traverse by answer, and by evidence, as any other fact stated in a bill* If a decree is sought to be impeached on the ground of fraud, the proper defense seems to be a plea of the decree, ac- companied by a denial of the fraud charged." If a plaintiff filing a bill to carry a decree into exe- cution has no right to the benefit of the decree, the defendant may plead the fact, if it is not so apparent on the bill as to admit of a demurrer. Bills in the nature of bills of revivor or of supplemental bills, are liable to the same pleas as the bills of whose nature they partake. Having thus considered some of the principal grounds up'on which pleas to the several kinds of bills may be supported, it will be proper to observe some particulars with respect to: i, the nature of pleas in general ; 2, their form ; 3, the manner in which they ' 2 Atk. 40. The accuracy of this rate as a bar to the plaintiff's title report seems very questionable. The under the old settlement, which was supplemental bill was brought on dis- dated in 1655 ; the defendants claim- covery of an old settlement, found after ing under a subsequent settlement a decree made in 1733. The cause made in 1694, which had been con- came on upon the supplemental bill, stantly acted upon by the family. MS. and a rehearing of the decree com- n. ; s. c. 2 Eq. Cas. Abr. 579. plained of, 7 July, 1740. The decree " Wichalse v. Short, 3 Bro. P. C. was affirmed, and the supplemental bill 558, Toml. ed. ; s. c. 7 Vin. Abr. 398, dismissed without costs, principally on pi. 15 ; 2 Eq. Cas. Abr. 177 ; Loyd v. the ground that length of time, with Mansell, 2 P. Wms. 73 ; and see pp. 331 collateral circumstances, ought to ope- et seq. * See I Bland Ch. R. 506; Daniel Ch. Plead. & Prac. 1584, 4th Am. ed., by Perkins. 380 PLEAS. are offered to the court ; and 4, the manner in whicb their validity is decided. I. In pleading there must in general be the same strictness in equity as at law ; ' at least in matter of substance.* A plea in bar must follow the bill, and ' I Vem. 114; 2 Atk. 632; 13 Ves. 233. * Where an information against a company, after stating several char- ities in which that company alone are interested, contains an allegation as to another charity in which that and another company are jointly inter- ested ; and that allegation is afterwards struck out by amendment, in order to save making such other company parties ; and in place of such allegation another is substituted, that there are other funds vested in the former company upon "the like or corresponding trusts ; " in such case, a plea of the will of the person who created the charitable trust struck out of the information, and that the other company above mentioned are not parties, is bad in point of form, because it is in fact an answer as to that of which it means to protect the defendant from making discovery ; and it > is also bad in substance, because comparing the amended information with the original, "the like or corresponding trusts," mean trusts for the exclu- sive benefit of the company interested in the other trusts. (Attorney Gen. V. Merchant Tailors' Company, 3 Sim. 323.) If, to all the relief and discovery of a bill, except so much as seeks a discovery of an alleged promise which constitutes the whole equity, a de- fendant pleads in bar that no such promise was made, and, by an answer accompanying the plea, again denies the promise, the plea is bad ; because the^ plea is to the bill, taking away that which alone constitutes the equity ; so that if issue were taken on it, there would be in the issue no affirmative, but only a negative of that which nobody affirms. (Denys v. Shuckburgh, 6 Law J. [N. S.] 330, L. C.) If a plea is coupled with an averment which raises an issue not raised by the bill, and which, instead of supporting the plea, is in fact inconsistent with the plea, the plea will be overruled. (Emmott v. Mitchell, 9 Jur. 171, V. C. E.) I If a plea purports to be a plea to the relief only, but yet concludes with a demand of the judgment of the court whether the defendant ought to be compelled to make any other answer, such a plea is informal ; for if the plea is to the relief only, the defendant professes that he will give the discovery. (King v. Heming, 9 Sim. 59.) A plea that by the laws of a foreign country an agreement is void, is sufficiently definite, without specifying the particular law which renders the agreement void. (Heriz v. Riera, n Sim. 318.) If a bill of discovery is filed in aid of an action, and the right of action PLEAS. 381 not evade it, or mistake the subject of it.' If a plea does not go to the whole bill, it must express to what part of the bill the defendant pleads ; and therefore a plea to such parts of the bill as are not answered must be overruled as too general.'' So if the parts of the bill to which the plea extends are not clearly and precisely expressed ; as if the plea is gen- eral, with an exception of matters after mentioned, and is accompanied by an answer, the plea is bad. For the court cannot judge what the plea covers, with- out loQking into the answer, and determining whether it is sufficient or not, before the validity of the plea can be considered.^ It is generally conceived that a plea ought not to contain more defenses than one ; and though a plea may be bad in part and not in the whole,* and may accordingly be allowed in part and overruled in part, yet there does not appear any case in which two de- fenses offered by a plea have been separated, and one allowed as a bar. Thus if a defendant pleads a fine and non-claim, which is a legal bar, and a purchase for a valuable consideration without notice of the plaint- iff's claim, which is an equitable bar ; if either should appear not to be a bar, as if the defendant by answer ' Asgill J/. Dawson, Bunb. 70 ; Child 'l Atk. 53, 451, 539. 2 Atk. 44, z;. Gib.son, 2 Atk. 903. 284; i Ves. 206; Welby v. Duke of ' Anon. 3 Atk. 70 ; Broom v. Hors- Portland, 2 Bro. P. C. 39, Toral. ed ; I ley, Mosely, 40. Jac. 466. ' Salkeld v. Science, 2 Ves. 107 ; Howe V. Duppa, I Ves. & Bea. 511. is founded upon a variety of circumstances put together, a plea which at- tempts to show that the action cannot be maintained, by confessing arid avoiding some of the circumstances and denying the rest, is not good ; because it reduces the plaintiff to the necessity of proving, in a court of equity, without a discovery, that he has a right to support that action. (Robertson I/. Lubbock, 181.) 382 PLEAS. should admit facts amounting to notice ; or if the plea in respect to either part should be informal; there seems to be no case in which the court has separated the two matters pleaded, and allowed one as a bar and disallowed the other. And as the end of a plea is to reduce the cause, or the part of it covered by a plea, to a single point," in order to save expense to the par- ties, or to protect the defendant from a discovery which he ought not to be compelled to make ; and the court to that end instantly decides on the validity of the de- fense, taking the plea, and the bill so far as it is not contradicted by the plea, to be true ; a double plea is generally considered as informal and improper.^ For if two matters of defense may be thus offered, the same reason will justify the making any number of defenses in the same way, by which the ends intended by a plea would not be obtained ; and the court would 'i Atk. 54; I Bro. C. C. 417; 15 245. But it has heen determined, that Ves. 82; I Ves. & Bea. 153, note, 156, where great inconvenience would result 157; I Madd. 194. from obedience to this rule, the court ' Whitbread v. Brockhurst, i Bro. on a previous special application will C. C. 104; s. c. 2 Ves. &Bea. 153, note ; give to the defendant leave to plead Nobkissen v. Hastings, 4 Bro. C. C. 252 ; double.* Gibson ». Whitehead, 4 Madd. s. c. 2 Ves. jr. 84 ; Wood v. Strickland, 2 241. Ves. & Bea. 150 ; 3 Madd. 8 ; 4 Madd. * Leave will be given to put in a double plea where extraordinary in- convenience might arise if a double plea were not allowed. Thus, in a suit as to an invention, where the defendant is required to set forth ac- counts of extraordinaiy length, at a great expense, and at the risk of mak- ing an inconvenient exposure of his affairs, leave will be given to plead, first, that where the invention is new, it is not useful ; and, secondly, that where it is useful-, it is not new. (Kay v. Marshall, i Keen, 190.) And when it will be no disadvantage to the plaintiff, and a great con- venience to the defendant that the defenses should be put in the form of pleas, in order that their validity may be considered before a discovery is enforced, leave will be given to plead to an ejectment bill, first, that a party is not heir, and, secondly, that even if he were heir, the plaintiff's right is barred by the statute of limitations. (Bampton v. Birchell, 4 Beav. 558.) PLEAS. be compelled to give instant judgment on a variety of defenses, with all their circunistances, as alleged by the plea, before they are made out in proof; and consequently would decide upon a complicated case which might not exist. This reasoning perhaps does not in its extent apply with equal force to the case of two several bars pleaded as several pleas, though to the same matter ; and it may be said that such plead- ing is admitted at law, and ought therefore to be equally so in equity. But it should be considered that a plea is not the only mode of defense in equity, and that therefore there is not the same necessity as at law for admitting this kind of pleading. But though a defense offered by way of plea consist of a great variety of circumstances, yet if they all tend to one point, the plea may be good.' * Thus, a plea of title Cann v. Cann, i P. Wms. 725 ; consisting of distinct propositions, and Ashurst w. Eyres, 3 Atlc. 341 ; 15 Ves. asinglepleaconsistingof one connected 82,377; Leonard w. Leonard, r Ball & proposition formed from multifarious B. 323 ; and see 2 Blackst. 1028, as to circumstances, the distinction between a double plea, * A distinct plea may be put in to distinct parts of the relief sought by the same bill. (Emmott v. Mitchell, 9 Jur. 171, V. C. E.) But each "plea, in order to be good, must be ah allegation or denial of some leading fact, or of some matters which, taken collectively, make out some general fact." (Robertson v. Lubbock, 4 Sim. 179.) Hence, inasmuch as the fact of a party being heir is consistent with the fact of there being no descent, and as there may have been a descent without a seizin, a plea of not heir, no descent, and no seizin, is a plea of several matters, and multifarious. (Chadwick v. Broadwood, 3 Beav. 530.) A plea that a person had not intermeddled with a testator's estate, and that he had renounced probate, is not a double plea to a bill alleging that he had possessed certain of the testator's effects, and was the personal representative of the testator ; for both the averments in the plea only amount to this, that the charactor of executor never was in him. (Strick- land V. Strickland, 12 Sim. 253.) A plea that the plaintiff had not obtained his certificate under a com- mission of bankruptcy, and that no dividend, or a dividend or dividends 384 PLEAS. deduced from the person under whom the plaintiff claims may be a good plea though consisting of a great variety of circumstances ; ' for the title is a single point, to which the cause is reduced by the plea." It therefore seems that a plea can be allowed in part only with respect to its extent, the quantity of the bill covered by it, and that if any part of the defense made by the plea is bad, the whole must be overruled.^ A plea must aver facts to which the plaintiff may reply,* and not in the nature of a demurrer, rest on facts in the bill.s The averments ought in general to ■ Martin and Martin, House of Lords, above, p. 363, note II ; Jones w. Davis, 6th March, 1724-5; and Else w. Dough- 16 Ves. 262; Chamberlain v. Agar, 2 ty, I P. Wms. 387, note, Mr. Cox's ed. ; Ves. & Bea. 259 ; Spottiswood v. Stock- Howe V. Duppa, I Ves. & Bea. 511; dale. Coop. 102; /Barker v. Ray, 5 Gait V. Osbaldeston, I Russ. 158 ; *S. C. Madd. 64. 5 Madd.428. * 15 Ves. 377. ■' See Doble v. Cridland, 2 Bro. C. C. ' Bicknell v. Gough, 3 Atk. 558 ; 2 274. Ves. 296; Roberts v. Hartley, I Bro. ' As instances of a plea not being C. C. 56 ; 6 Ves. 594 ; Billing v. Flight, a complete defense to the bill, or to so I Madd. 230 ; Steff v. Andrews, 2 much thereof as it purports to cover, Madd. 6. The prominent, distinction see Moore z;. Hart, iVern. no; Sal- between a plea and a demurrer (Ord. in keld V. Science, 2 Ves. 107 ; Potter v. Chan. 26, ed. Bea.) here noticed',^ is Davy, 3 Vin. Abr. 135 ; Hoare v. Parker, strictly true, even of that description less than fifteen shillings in the pound had been paid, and that the assignee was a necessary party, is not a double plea ; because the facts as to the certificate and dividend lead but to one point, namely, the necessity of the ^ assignee being a party. (Kirkman v. Andrews, 4 Beav. 554.) A plea of a stated account, and of a release or receipt of the balance, is not a double plea. And such account, if not impeached by the bill, need not be annexed to the plea. (Holland v. Sprowle, 6 Sim. 23.) So a plea of the statutes of limitation (21 Jac. I, and 9 Geo. IV) is not a double plea ; for they ought to be considered as jointly making but one law. (Forbes v. Skelton, 8 Sim. 335.) But a plea which is in effect a plea of the statute of limitations, and of no liability ever incurred, is a double and inconsistent plea, and bad. (Emmott V. Mitchell, 9 Jur. 171, V. C. E.) And a plea averring that a fine was levied of an estate claimed by the bill, and that such estate is the only part of the property claimed in which the defendant has any interest, will be overruled as a double plea. (Wat- kins V. Stone, 2 Sim. 49.) PLEAS. 385 be positive/ In some cases, indeed, a defendant has been permitted to aver according to the best of his knowledge and belief ; as that an account is just and true;' and in all cases of negative averments,^ and of averments of facts not within the immediate knowl- edge of the defendant,* it may seem improper to re- quire a positive assertion* Unless, however, the aver- ment is positive, the matter in issue appears to be, not the fact itself, but the defendant's belief of it : and the conscience of the defendant is saved by the nature of the oath administered ; which is, that so much of the plea as relates to his own acts is true, and that so much as relates to the acts of others he believes to be true. All the facts necessary to render the plea a com- plete equitable bar to the case made by the bill, so far as the plea extends, that the plaintiff may take issue upon it,s must be clearly and distinctly averred.f of plea which is termed negative (above, ° See Drev^r v. Drew, 2 Ves. & Bea. p. 321), for it is the affirmative of the 509. proposition which is stated in the bill. ■" 2 Ves. & Bea. 162. '3 Atk. 590. ^ Gilb. For. Rom. 58 ; 2 Ves. 296; ' 3 Atk. 70 ; Burgony v. Machell, and see Carleton v. Leighton, 3 Meriv. Tothill, 70. 667. * According to the case of Kirkman v. Andrew, a plea that the defend- ant is informed and believes that the plaintiff became bankrupt, is a suffi- cient plea of bankruptcy ; inasmuch as the facts stated in an answer upon the information and belief of the defendant are held to be sufficiently put in issue ; and as the allegations in a plea, if they relate to the act of others, however positively made in the plea itself, are sworn to only upon the be- lief of the defendant. (4 Beav. 554.) But according to the case of Small v. Atwood, a plea that the defend- ant has been informed and believes that the plaintiff has no interest in the suit is bad : because, in this case, the onus probandi being on the defend- ant, since he undertakes to show that the plaintiff has no interest, he must be as capable of stating his facts positively as of proving them ;; and if upon issue being taken upon the plea, he were to prove his informatioa and be- lief, that would not be an answer to the bill, (i Y. & C. Eq. Ex. 39.) t In a plea it is unnecessary to negative facts which would defeat the plea, if they are not stated in the bill. But if the plea. does, contain aver- 35 386 PLEAS. Averments are likewise necessary to exclude intend- ments which would otherwise be made against the ments negativing such facts, such averments are merely superfluous ; they do not vitiate the plea. (Forbes v. Skelton, 8 Sim. 325.) " Where a bill alleges a fact, and alleges other circumstances calculated and tending to prove that fact, the defendant cannot plead the negative of the fact, without denying the statements and allegations in the bill which have a tendency to prove it." (Denys v. §huckburg, 6 Law J. [N. S.] 330, L. C.) If a defendant puts in a negative plea (such as a plea of no tithable things to a bill for tithes), and there is a charge in the bill as to documents from which the plaintiff's right to relief would appear, the defendant must deny such charge by an answer in support of the plea. (Clayton v. The Earl of Winchester, 3 Y. & C. Eq. Ex. 426, 683. See also note * to p. 322. If a defendant puts in a plea denying a partnership in a business, and by his answer admits that he is in possession of documents relating to said business, but, "save as aforesaid," denies that he has any documents whereby the truth of the alleged matters would appear, he admits that the truth of the contrary of the plea would appear by evidence in his posses- sion, and this renders the plea bad, although in his answer he goes on to insist, that inasmuch as the documents in his possession relate exclusively to his own title, and do not in any way tend to support the plaintiff's claim, he is not bound to produce them. (Harris v. Harris, 3 Hare, 450.) A plea to a bill for discovery in aid of an ejectment, that the purchase money contracted to be paid for the estate has not been paid or released, is defective in not averring that the money is due, where, from the circum- stances of the case, it is probable that it was not the intention of the par- .ties that it should be paid ; as where the conveyance was made by a father to his son, and although containing a recital of an agreement for a sale to the son, was yet expressed to be made in consideration of natural affection. (Drake v. Drake, 3 Hare, 523.) If to a bill for an account of partnership transactions, by the executors of a deceased partner, the defendant pleads that for a certain consideration a parol agreement was entered into between the deceased partner and the defendant, and all accounts between them, and all claims of the former in respect (o the effects of the partnership and the debts due to and from the same, should be waived ; such agreement will be construed to be an agreement that the defendant should take upon himself the discharge of such partnership habilities (if any) as remained to be satisfied ; and the plea will be overruled, if it does not aver that no such liabilities still remained undischarged. (Brown v. Perkins, t Hare, 564.) Where a bill is filed to establish a will of real estate, of which it alleges several copies were executed, a plea that the will proved in the ecclesias- PLEAS. 387 pleader ; and the averments must be sufficient to sup- port the plea.' If there is any charge in the bill, which is an equi- table circumstance in favor of the plaintiff's case against the matter pleaded, as fraud, or notice of title, that charge must be denied by way of answer, as well as by averment in the plea.= In this case the answer must be full and cleai», or it will not be effectual to support the plea ; ^ for the court will intend the mat- ters so charged against the pleader, unless they are fully and clearly denied.* But if they are in substance fully and clearly' denied, it may be sufficient to support the plea, although all the circumstances charged in the bill may not be precisely answered.^ Though the court upon argument of the plea, may hold these charges sufficiently denied by the answer to exclude intendments against the pleader, yet if the plaintiff thinks the answer to any of them is evasive, he may except to the sufficiency of the answer in those points. ' 2 Ves. 245 ; 2 Sch. & Lefr. 727 ; ° 3 Atk. 304 ; Radford v. Wilson, 3 i8Ves. 182. Atk. 815; 3 P. Wms. 145; 5 Bro. P. 'See the judgment in Bayley v. C. 561, Toml. ed. Adams, 6 Ves. 594 ; 2 Sch. & Lefr. 727 ; * 2 Atk. 241 ; Gilb. Cas. in Eq. 185. 2 Ves. & Bea. 364 ; 5 Madd. 330 ; 6 As an example, see Hony v. Hony, i Madd. 64; 2 Sim. & Stu. 279 ; and see Sim. & Stu. 568. above, p. 331, etseq., and p. 345. " 5 Bro. P. C. 561, Toml. ed. tical court did not contain certain passages is bad, because it does not negative the fact that the will was as stated in the bill, but traverses the fact of the copy proved in the ecclesiastical court being to the effect stated in the bill, which is quite immaterial in regard to a question of real estate, as the ecclesiastical court has no jurisdiction in cases of real estate. (Strickland v. Strickland, 3 Beav. 224.) Where a defendant, in his answer to a bill for tithes of a mill, says that it is an ancient mill, built before living memory ; that no tithes have ever been paid for it ; and that it has been always considered exempt from tithes ; the exemption is well pleaded. (Townley v. Colegate, 2 Sim. 297.) " A negative plea, as to belief, of no mortgage, not going to material collateral charges tending to that point, is too loose and general." (Arnold v. Heafield, i M'Cleland & You. 330.) 388 PLEAS. A defendant may also support his plea by an answer touching anything not charged by the bill, as notice of a title or fraud; for by such an answer nothing is put in issue covered by the plea from being put in issue,' and the answer can only be used to support or dis- prove the plea.'' But if a plea is coupled with an answer to any part of the bill covered by the plea, and which consequently the defendant by the plea declines to answer, the plea will upon argument be overruled.' Where facts appeared upon an answer to an orig- inal bill, which would operate to avoid the defense made by plea to an amended bill, the answer to the original bill was read on the argument of the plea, to counterplead the plea ; ■• so it should seem if the an^ swer to an original bill would disprove an averment in a plea to an amended bill, the court might permit it to be read for that purpose.^ 2. A plea, like a demurrer, is introduced by a pro- testation against the confession of the truth of any matter contained in the bill. For the purpose of determining the validity of the plea, the bill, so far as it is not contradicted by the plea,* is taken for true ; and the protestation has probably been used to pre- vent the same conclusion for other purposes. The extent of« the plea, that is, whether it is intended to cover the whole bill, or a part of it only, and what part in particular, is usually stated in the next place ; and this, as before observed,^ must be clearly and distinctly shown. The matter relied upon as an ob- ' Gilb. For. Rom. 58, 59. 'See the case of Hildyard v. Cfessy, ' See 3 Atk. 303. 3 Atk. 303. ' Cottington v. Fletcher, 2Atk. 155; " See Plunket v. Penson, 2 Atk. 51 ; Gilb. For. Rom. 57. 15 Ves. 377. * Hyliard v. White, in Chaji. xsth ' Page 380. March, 1745. PLEAS, 389 jection to the jurisdiction of the court, to the person of the plaintiff or defendant, or in bar of the suit, generally follows, accompanied by such averments as are necessary to support it. The plea commonly con- cludes with a repetition that the matters so offered are relied upon as an objection or bar to the suit, or so much of it as the plea extends to ; and prays the judgment of the court whether the defendant ought to be compelled further to answer the bill, or such part as is thus pleaded to. If the plea is accompanied by an answer merely to support it, the answer is stated to be made for that purpose, not waiving the plea. If the plea is to part of a bill only, and there is an an- swer to the rest, it is expressed to be an answer to so much of the bill as is not before pleaded to, and is preceded by the same protestation against waiver of the plea. 3. A plea ' is filed like a demurrer in the proper office; and pleas in bar of matters in pais,'' must be upon oath of the defendant ; but pleas to the jurisdic- tion of the court, or in disability of the person of the plaintiff,' or pleas in bar of any matter of record, or of matters recorded, or as of record in the court itself, '' or any other court, ' need not be upon oath. 4. If the plaintiff" conceives a plea to be defective in point of form or substance, he may take, the judg- ment of the court upon its sufficiency. And if the defendant is anxious to have the point determined, he may also take the same proceeding. Upon argument of a plea it may either be allowed simply, or the ben- ' A plea must be signed by counsel, ' Prac. Reg. 324, Wy. ed. unless taken by commissioners. Simes ' But it" a plea of matters recorded z-. Smith, 4 Madd. 366. See below, p. be accompanied with averments of mat- 407, as to the taking of an answer. ters in pais, it must be upon oath. Wall ' Prac. Reg. 325, Wy. ed. v. Stubbs, 2 Ves. & Bea. 354 ; see above, ' Ord. in Chan. 27, 172, Ed. Bea. pp. 318-321. 39© PLEAS. efit of it may be saved to the hearing, or it may be ordered to stand for an answer. In the first case the plea is determined to be a full bar to so much of the bill as it covers, if the matter pleaded, with the aver- ments necessary to support it, be true. If, therefore, a plea is allowed upon argument, or the plaintiff without argument |;hinks it, though good in form and sub- stance, not true in point of fact, he may take issue upon it, and proceed to disprove the facts upon which it is endeavored to be supported. ^ For if the plea is upon argument held to be good, or the plaintiff admits it to be so by replying to it, ' the truth of the plea is the only subject of question remaining, so far as the plea extends ; and nothing but the matters contained in the plea, as to so much of the bill as the plea covers, is in issue between the parties. ^ If, therefore, issue is thus taken upon the plea, the defendant must prove the facts it suggests."* If he fails in this proof, so that at the hearing of the cause the plea is held to be no bar, and the plea extends to discovery sought by the bill, the plaintiff is not to lose the benefit of that dis- covery, but the court will order the defendant to be examined on interrogatories, to supply the defect. ^ But if the defendant proves the truth of the matter pleaded, the suit, so far as the plea extends, is barred,^ even though the plea is not good either in point of form or substance. Therefore, where a defendant pleaded a purchase for a valuable consideration, and omitted to deny notice of the plaintiff's title, and the ' Prac. Reg. 330, Wy. ed. ' Nels. 119 ; Astley v. Fountaine, 'iVern. 72; Prec. in Chan. 58. Rep. tem. Finch, 4; 2 Ves. 247; 6 ' 3 P. Wms. 95 : Parker v. Blyth- Madd. 63 ; 2 Sim. & Stu. 278. more, Prec. in Chan. 58. See Cooper ° See Wichalse v. Short, 3 Bro. P. C. V. Tragonnel, I Chan. Rep. 174. 558. * Mos. 73 ; 2 Ves. 247 ; Ord v. Hud- dleston, Dick. 510. PLEAS. 391 plaintiff replied, it was determined that the plea, though irregular, had been admitted hy the replication to be good, and that the fact of notice not being in issue, the defendant, proving What he had pleaded, was entitled to have the bill dismissed. ' If upon argument the benefit of a plea is saved to the hearing, it is considered that so far as appears to the court, it may be a defense ; but that there may be matter disclosed in evidence which would avoid it, supposing the matter pleaded to be strictly true ; and the court, therefore, will not preclude the question. When a plea is ordered to stand for an answer, it is merely determined that it contains matter which may be a defense, or part of a defense ; but that it is not a full defense, or it has been informally offered by way of plea, or it has not been properly supported by answer, so that the truth of it is doubtful. For if a plea requires an answer to support it, upon argument of the plea the answer may be read to counterprove the plea ; and if the defendant appears not to have suffi- ciently supported his plea by his answer, the plea must be overruled, or ordered to stand for an answer only.'' A plea is usually ordered to stand for an answer where it states matter which may be a defense to the bill, though perhaps not proper for a plea or informally pleaded.5 But if a plea states nothing which can be a defense, it is merely overruled. If a plea is ordered to stand for an answer, it is allowed to be a sufficient answer to so much of the bill as it covers,* unless by ' Harris v. Ingledew, 3 P. Wms. 94, Science, 2 Ves. 107 ; Whitbread v. 95. Brockhurst, i Bro. C. C. 404 ; s. c. 2 " See Hildyard v. Cressy, 3 Atk. Ves. & Bea. 153, note ; Whitchurch v. 304. Bevis, 2 Bro. C. C. 559 ; Wood v. Strick- ' As examples, see Moore v. Hart, I land, 2 Ves. & Bea. 150. Vem. no; s. c. Ibid. 201; Kemp v. "Coke z/. Wilcocks, Mos. 73:3 P. Kelsey, Free, in Chan. 544; Salkeld v. Wms. 240; 3 Atk. 815. 392 PLEAS. the order liberty is given to except' But that liberty may be qualified so as to protect the defendant from any particular discovery which he ought not to be compelled to make.^ And if a plea is accompanied by an answer, and is ordered to stand for an answer, without liberty to except, the plaintiff may yet except to the answer as insufficient to the parts of the bill not covered by the plea.' If a plea accompanied by an answer is allowed, the answer may be read at the hearing of the cause to counterprove the plea.* There are some pleas which are pleaded with such circumstances that their truth cannot be disputed ; and others being pleas of matter of fact, the truth of which may be immediately ascertained by mere inquiry, it is usually referred to one of the masters of the court to make the inquiry. These pleas, therefore, are not usually argued.5 Thus, pleas of outlawry or excom- munication,* being always pleaded sub sigillo, the truth of the fact pleaded is ascertained by the form of pleading, and the suit is consequently delayed until the disability shall be removed, unless the plaintiff can show that the plea is defective in form, or that it does not apply to the particular case, and for these purposes he may have the plea argued. Pleas of a former decree,* or of another suit depending,' are generally referred to a master to inquire into the fact ; and if the ' Sellon V. Lewen, 3 P, Wms. 239 ; 4 Bro. C. C. 439 ; Bayley v. Adams, 6 Maitland v. Wilson, 3 Atk. 814. See Ves. 586. Dryden v. Robinson, 2 Sim. & Stu. ' Coke v. Wilcocks, Mos 73. 529. ' 3 Atk. 304. But the plaintiff may " See Alardes v. Campbell, Bunb. not amend his bill as of course after a 265 ; s. c. I Turn. 133, note ; Herbert plea to part of the bill has been allowed, V. Montagu, Finch, 117 ; Brereton v. Taylor v. Shaw, 2 Sim. & Stu. 12. Gamul, 2 Atk. 240 ; Pusey v. Desbouv- ' Ord. in Chan. 175, Ed. Bea. rie, 3 P. Wms. 315 ; King v. Holcombe, " Morgan v. Morgan, I Atk. 53. ' Ord. in Chan. 98, ed. 1739, * This disability is removed by the stat. 53 Geo. Ill, c. 127, s. 3. ANSWERS. 353 master reports the fact true, the bill stands instantly dismissed, unless the court otherwise orders.' But the" plaintiff may except to the master's report, and bring on the matter to be argued before the court;' and if he conceives the plea to be defective, in point of form or otherwise, independent of the mere truth of the fact pleaded, he may set down the plea to be argued as in the case of pleas in general.^ Section II. — Part III. Of answers and-disclaimers ; and of demurrers, pleas, answers, and disclaimers, or any two or more of them jointly. If a plea is overruled, the defendant may insist on the same matter by way of answer.* And whatever part of the bill is not covered by demurrer or plea, must be defended by answer,' unless the defendant disclaims.* In treating of answers and disclaimers will be considered : i. The general nature of answers ; 2. Their form ; 3. The manner in which their sufficiency is decided upon, and deficiency supplied ; and 4. The nature and form of disclaimers. I. It has been already^ mentioned that every plaintiff is entitled to a discovery from the defendant, ' See Crofts v. Wortley, r Gas. in Urlin v. , I Vem. 332 ; and Foster Chan. 241. See above, pp. 329, 336. v. Vassall, 3 Atk. 587. "Durrandz/.Hutchinson,Mich.i77i, *2 Ves. 492; Earl of Suffolk v. on exceptions. Green, i Atk. 450 ; i Cox, 228. = Ord. in Chan. 176, Ed. Bea. See " Prac. Reg. Wy. ed. " Page 105. * See note * to p. 207. 394 ANSWERS. of the matters charged in the bill,' * -provided they are •necessary to ascertain facts material to the merits of his case, and to enable him to obtain a decree, f The plaintiff may require this discovery, either because he cannot prove the facts, or in aid of proof, and to avoid expense.^ He is also entitled to a discovery of matters necessary to substantiate the proceedings, and make them regular and effectual in a court of equity.' However, if the discovery sought by a bill is matter of scandal, J or will subject the defendant to any pain, ' Where the defendants are numer- peal. See s. c. 2 Sim. & Stu. 509. [But ous, each, it seems, is entitled to put in see i Perkins' Dan. Ch. Pr. 730.] a separate answer, although they should " 2 Atk. 241. have but one common defense. Van ° 2 Ves. 492 ; 6 Ves. 37, 38 ; Coop. Saudau v. Moore, i Russ. 441, on ap- 214. * See note * to p. 142. If a bill requires a defendant to answer, but he is not required to an- swer any of the interrogatories by a note at the foot of the bill, in such case he need not answer any of the interrogatories, but he must put in some answer ; for he is only exempted from giving a discovery of facts, and not from stating his line of defense. (Wilson v. Jones, 7 Jur. 1 102, V. C. E.) t See Janson v. Solarte, 2 Y. & C. Ex. 132. The rule that where a defendant submits to answer, he must answer fully, does not apply in such a way as to oblige a defendant to discover that which would be altogether immaterial to the rehef sought by the bill. (Wood V. Hitchings, 3 Beav. 504; Codrington v. Codrington, 3 Sim. 519.) For he need not answer at all as to such irrelevant matter, or if it is desir- able for his own interest, he may answer only as to a part of it. (Wood V. Hitchings, 3 Beav. 504.) Where an information, after alleging a misapplication of certain funds vested in the defendants upon certain trusts, alleges that there are certain other funds vested in the defendants upon the like trusts, but it does not charge any misapplication of such other funds, or anything which can show that the interference of the court is necessary with respect to them, the allegation as to the last mentioned funds is irrelevant, and therefore need not to be answered. (Attorney Gen. v. Merchant Tailors' Company, 5 Sim. 328.) X Where new matter which occurred subsequently to the filing of an original bill is impnoperly introduced by amendment, instead of by a sup- plemental bill, and that matter contains scandalous imputations on the ANSWERS. 395 penalty, or forfeiture * he is not bound to make it ; ' and if he does not think proper to defend himself from the discovery by demurrer or plea, according to the cir- cumstances of the case, he has been permitted by an- ■" 15 Ves. 378 ; and see authorities cited above, p. 288. character of the defendant, the defendant may answer that matter in order to clear his character, without preventing the bill from being dismissed with costs on the ground of the irregularity of introducing the new matter by amendment. (Wray v. Hutchinson, 2 My. & K. 235.) * A defendant is not only not bound to answer any question which has a direct tendency to criminate him, but he is not bound to answer any question the answer to which may form a link in the chain of evidence. (Southall V. , 2 Coll. Ex. Eq. 308.) A defendant is not obliged to answer so as to expose himself to a for- feiture. So that an heir at law is not obliged to answer interrogatories as to the testator's sanity, where there is a clause in the will revoking an an- nuity in the event of the heir disputing his will or his competency to make it. And he may avail himself of this exemption although he answers in part, and in so doing may have made admissions which subject him to the operation of the revocation clause. (Cooke v. Turner, 14 Sim. 218.) And so a husband who obtained his marriage license by falsely swear- ing that the parent's consent to the marriage was given, may by answer decline answering questions relating to the minority of the lady, and the non-consent of her parent, in an information under the marriage act, 4 Geo. IV, c. 76, s. 23, praying for a declaration that he has forfeited his in- terest in his wife's property ; for such a case is within the general rule as to forfeiture. (Attorney Gen. v. Lucas, 2 Hare, 566.) But a party cannot protect himself from discovering whether the con- sideration of a security on which he has brought an action against the plaintiff in equity was money lent at play, although the stat. 9 Anne, c. 14, s. I, makes securities for money so lent void, for such a discovery does not subject the defendant in equity to a penalty or forfeiture, but merely pre- vents him from succeeding in his action. (Sloman v. Kelly, 4 Y. & C. Eq. Ex. 169.) Where the interrogatories of a bill relate to matters as to which the plaintiff is entitled to a discovery, and also to other matters an admission of which would subject the defendant to an indictment or penalties, and which do not form the foundation of any part of the relief which is prayed, and the two subjects are so mixed in the interrogatories that the defendant cannot separate them in his answer, the plaintiff cannot insist upon an an- swer to any part of the interrogatories. (Earl of Lichfield v. Bond, 12 Law J. [N. S.] 329, M. R.) 396 ANSWERS. swer to insist that he is not obliged to make the dis- covery.' In this case the plaintiff may except to the ' 3 P. Wms. 238 ; Finch v. Finch, 2 sought of matters confidentially com- Ves. 491 ; Honeywood v. Selwin, 3 municated to him.* Stratford v. Ho- Atk. 276; Paxton v. Douglas, 19 Ves. gan, 2 Ball & B. 164; if 'a person an- 225 ; I'arkhurst v. Lowten, i Meriv. swers at all, he may be required to 371 ; I Swanst. 192, 305. It has also answer all the facts stated in the bill, been held, that a purchaser for a valu- from which he does not distinctly pro- able consideration, without notice, may tect himself from answering by either of by answer protect himself from making the other modes of defense. See Dol- discovery of facts which might defeat der v. Lord Huntingfield, 11 Ves. 283, his enjoyment. Jerrard v. Sanders, 2 in which the earlier cases are cited. Ves. jr. 454 ; s. c. 4 Bro. C. C. 322 ; 15 Faulder v. Stuart, II Ves. 296; Shaw Ves. 378; I Ball & B. 325 ; and see v. Ching, 11 Ves. 303; Rowe v. Teed, Lord Rancliffe • Injunction is a prohibitory writ issued by the authority of a court of equity, to restrain one or more of the defendants or parties, or quasi parties, to a suit 454 THE COURSE OF A SUIT, or proceeding in equity, from doing, or from permit- ting his servants to do, an act which is deemed to be unjust or inequitable, so far as regards the rights of some other party or parties to such suit or proceedings in equity. In England, injunctions were divided into common and special. The common injunction was obtained of course, when the defendant in the suit in equity was in default for not entering his appearance, or for not putting in his answer to the complainant's bill, within the times prescribed by the practice of the court. Special injunctions were founded upon the oath of the complainant, or other evidence of the truth of the charges contained in the bill of complaint. They were obtained upon a special application to the court or to the officer of the court who was authorized to allow the issuing of such injunction, and usually upon notice of such application given to the party whose proceedings were sought to be enjoined. In the United States courts, and in the "equity courts of most States of the Union, the English practice of granting the common injunction has been discon- tinued or superseded, either by statute or by rules of court ; and in all the courts where such English prac- tice is superseded, all injunctions are special, and are divided into preliminary or interlocutory, and final or perpetual injunctions. Preliminary injunctions are used to restrain the party enjoined from doing or continuing to do the wrong complained of, either temporarily or during the continuance of the suit or proceeding in equity in which such injunction is granted, and before the rights of the parties have been definitely settled by the decis- ion and decree of the court in such suit or proceeding. Final or perpetual injunctions are^ awarded, or di- THE COURSE OF A SUIT. 455 rected to be issued, or the preliminary injunction already issued is made final or perpetual, by the final decree of the court, or when the rights of the parties, so far as relates to the subject of the injunction, are finally adjudicated and disposed of by the decision and the order or decree of the cOurt. The writ may be granted by order of the court im- mediately upon the filing the bill, when it prays an in-- junction, which, for this purpose, must be verified by affidavit of the plaintiff; or of one of the plaintiffs where there are more than one ; or by the affidavit of some third person, who shows why the plaintiff does not make affidavit, and especially how he happens to have a knowledge of the facts set forth in the bill ; or by some other testimony sufficient to induce the court to credit the truth of the statements of the bill. The writ may also be obtained at any subsequent stage of the suit, on petition, which must be sworn to or veri- fied as just stated. The application for a preliminary injunction is always addressed to the sound discretion of the court, and may be refused or granted simply, or granted in a modified form, or upon certain prescribed conditions, and especially on the condition that the plaintiff give bond with security to indemnify the opposite party from the consequences of the injunction. The injunc- tion is granted, usually, to continue until the filing of the defendant's answer, or until further order. As soon as the defendant has put in a full answer, he may move to dissolve the injunction. And it is then a question for the discretion of the court, whether, on the facts disclosed by the answer, or as it is technic- ally termed, on the equity confessed, the injunction shall be at once dissolved, or whether it shall be con- 456 THE COURSE OF A SUIT. tinued to the hearing. The general principle of de- cision is, that if the answer shows the existence of an equitable question, such question shall be preserved in- tact until the hearing. It is an almost universal practice to dissolve the injunction where the answer fully denies all the cir- cumstances upon which the equity of the bill is founded ; and likewise to refuse the writ, if application is made after the coming in of such answer. But there, nevertheless, is no inflexible rule with regard to dis- solving an injunction on answer denying the allega- tions of the bill ; the granting and continuing an in- junction must always rest in the sound discretion of the court, to be governed by the nature of the case. If the injunction be applied for before the answer, it must necessarily be sustained on affidavit ; and the defendant may resist it on counter affidavits ; or if it has been obtained ex parte, he may move to dissolve it on counter affidavits, or may wait until he has filed his answer, and then move to dissolve. If the motion, either to grant or dissolve the injunction, is heard after answer, the admissibility of affidavits is a questionable point. According to the regular practice in equity, the motion to dissolve is usually heard on bill and answer and the accompanying exhibits, and no other proofs are allowed to be read. But by statute in one or more of our States, on application of any of the parties, the court is authorized to order testimony to be taken on behalf of the parties in reference to the allegations in the bill, in such form as it may direct, and on such terms and under such regulations as to notice and otherwise as may be deemed equitable ; provided that such testimony be returned by the day when the mo- THE COURSE OF A SUIT. 457 tion for dissolving the injunction shall be heard ; and such testimony, at the hearing of the motion, shall be considered in connection with the bill or petition and answers in the cause. And in England, by 15 & 16 Vic, the answer of the defendant is, for the purpose of evidence on the motion to dissolve, to be regarded merely as an affidavit, and affidavits may be received and read in opposition thereto. In England, exceptions filed to the answer may be shown for cause against the dissolution ; but the court will direct the exceptions to be set down and argued instanter. (7 Beav. 584.) In Maryland, exceptions may be heard at the hearing of the motion to dissolve, and if they are ruled good, the injunction will be con- tinued ; but without prejudice to the right of the de- fendant to renew his motion on filing a better answer, (i Bland Chan. Rep. 181, 353 ; lb. 191.) By the mo- tion to dissolve, the defendant calls upon the plaintiff' to show cause why, after having well and sufficiently answered the bill, the injunction should not be dis- solved. Having thus put himself upon a sufficiency of his answer, at that time, and for that purpose, he is bound to sustain it in all respects ; or he must fail in his motion; therefore, this practice is founded on a principle of pleading. Where the motion is heard on the bill and answer, so much of the bill as is not denied by the answer is taken for true, and likewise so much of the answer as is responsive to the bill. 5. The writ of ne exeat is a writ to restrain a per- son from quitting the State without leave of the court. The writ may be obtained on the filing of the bill, sup- ported by the affidavit of the complainant. It may likewise be obtained at any subsequent stage of the 458 THE COURSE OF A SUIT. cause, on petition supported in like manner by affida- vit. The complainant's demand must be equitable, and for a irioney demand actually due at the time of the application of the writ; and the bill or petition must allege precisely the nature and amount of the claim, and that the defendant intends going abroad. The writ is issuable if the defendant is within the juris- diction, although his domicile may be abroad, but not if the plaintiff be himself resident abroad. The writ is directed to the sherifiF, and requires him to take security from the defendant in a specified amount, that he will not leave the State without the order of the court. Upon the filing of his answer, the defendant may obtain an order for hearing a motion to discharge the writ, at a very short day ; and the writ will be discharged, if, on the hearing, it appears that the answer fully denies the existence of the claim, or the intention to leave the State. In case the defend- ant refuses to give such security as required, the sheriff commits him to custody. The bond required resem- bles a bail bond . at common law, and is in the nature of bail for the appearance of the defendant in court to, abide the decree which may be rendered against him. What effect the abolition of imprisonment for debt has upon the writ of ne exeat, is an unsettled question. Evidence. The cause being at issue, the parties next proceed to examine their witnesses. This is done before com- missioners or examiners, as has been already stated, upon written interrogatories. The parties or their attorneys are allowed to be present at the examination, and to have copies of each other's interrogatories. After witnesses are examined one side, the other side THE COURSE OF A SUIT. 459 can have an adjournment of the commission for the purpose of receiving additional interrogatories, proofs and witnesses, and giving each party a fair opportunity of adducing all his evidence. In some courts, instead of written interrogatories the witnesses are examined in chief, and then cross-examined, and re-examined viva voce by the respective parties or their attorneys, before commissioners, who take down their evidence not by question and answer, but in the form of a narra- tive, which is read over to the witness for his correc- tion or explanation. And other modified practice has been introduced, which must be learned in the courts where used. The testimony, and the documentary proofs properly indorsed so as to identify each as mentioned by the witnesses, must be sealed close, and returned by the commissioners, with the commission and a certificate of its proper execution according to all the requirements of the commission, to the court from which the commission issued. The evidence and proofs must be confined to the pleadings, which bind down the parties to certain definite statements of facts made by each of them, on which they rest their case, and of the facts of their adversary's case which they dispute. Neither party will be allowed at the hearing to controvert any facts which he has stated on the record, nor any facts put on record by the adversary, of which he has admitted the truth. At the hearing each party may make use of his adversary's pleadings, and of so much of his own as the adversary has admitted. Each party must prove all the facts essential to his case which he has stated and have not been admitted by the opposite party; and must contradict such statements of the opposite party as have not been admitted. Sometimes the bill 460 THE COURSE OF A SUIT, may be read by the plaintiff as evidence against the ' defendant, of his admission of the truth of the matters therein alleged, and not noticed in the answer ; on the principle, that being required to admit or deny the truth of the allegations, he has by his silence admit- ted them. This rule is, however, confined to facts either directly within the knowledge of the defendant, or which may fairly be presumed to be so. If the matters omitted to be noticed are not of either of these descriptions, the omission in the answer is merely mat- ter of exception on the part of the plaintiff for insuffi- ciency, and if he replies, without excepting, he must prove his allegations, as not admitted. It was, how- ever, said in Young v. Grundy (6 Cranch, 51), without any qualification whatever, that if the answer neither admits nor denies the allegations of the bill, they must be proved at the hearing ; and many decisions of able courts maintain the same unqualified doctrine, making, no distinction as to the matters omitted to be noticed. Let us apply the rule above indicated to the two several modes in which causes are brought before the court with a view to a decree. First, on hearing on bill and answer, the plaintiff may read against each defend- ant any part of his answer ; for it is the adversary's case ; and he may read such parts of his bill as are admitted by the answer. All parts of the bill which the defendant by answer denies, or what is equivalent, professes ignorance of, cannot be proved at all; be- cause the form of submitting the case for decree upon bill and answer does not admit of the production of evidence. Each defendant, in like manner, may read the whole bill, for it is his adversary's case, and also the whole of his answer ; for where the cause is heard upon the bill, answer, and exhibits, the answer, not THE COURSE OF A SUIT. 46 1 being denied by a replication, is considered ti^ue throughout, in all its allegations, whether responsive or not, because the plaintiff, by not filing a replication and thereby putting the facts in issue, has deprived the defendant of the opportunity of proving them. And if, after a replication is filed, the cause is set down for a hearing on the bill and answer, by the plaintiflF, or by consent, the answer is still taken as true, notwithstand- ing the replication. We will now consider the rule above indicated in relation to the mode of bringing a cause before the court, with a view to a decree by replication. In con- sidering an answer in relation to an issue made by a replication, it is all-important to distinguish between its function as a pleading and its function as evidence. A bill partakes of the character both of a pleading and also of an examination of the defendant as a wit- ness. And the answer, so far as it sets up a new and distinct matter of defense to defeat the equity of the plaintiff, is a mere pleading in the nature of a confes- sion and avoidance ; but when it only denies the facts on which the plaintiff's equity is founded, it is a plead- ing coupled with evidence. So far as it is responsive to the bill, it is evidence ; and as the plaintiff has made the defendant a witness, he is bound by his testimony, unless it is disproved ; and he cannot urge against the weight of the answer, that it is the testimony of an interested party. It should be borne in mind, that, where an answer is, in form, responsive to an interrog- atory in a bill, but also involves, affirmatively, the asser- tion of a right in opposition to the plaintiff's demand, it is but a pleading, and is not evidence of the truth of the right so asserted. The plaintiff can read the answer because it is his adversary's case, and also so much of 462 THE COURSE OF A SUIT. the bill as is admitted by the answer, in support of his case. And in reading the answer of the defendant against him, the plaintiff is not bound to read the whole answer, but may read only such parts as make against the defendant. The plaintiff can adduce evidence to prove the parts of the bill not admitted by the answer, and also to contradict the statements contained in the answer. And the defendant can adduce evidence in support of his answer, and gen^ erally in meeting or contradicting the evidence of the plaintiff It is important to state here, the true import of the rule in equity, that an answer responsive to the allega- tions and charges made in' a bill, and which contains clear and positive denials of them, must prevail, unless it is overcome by the testimony of two witnesses to the substantial facts, or at least by one witness and attend- ant circumstances which supply the want of another witness, and thus destroys the statements of the answer, or demonstrate its incredibility, or insufficiency as evi- dence. It would, from the phraseology of the rule, seem, at first view, as if the testimony of a witness is indispensable, and that documentary evidence, how- ever weighty, will not alone outweigh the answer. The rule, as stated, has reference to an answer opposed only by the testimony of one witness. In such case, the court will neither decree nor send it to a trial at law. But if the evidence in the cause, no matter what it may be, is sufficient to outweigh the answer, the plaintiflF may have a decree in his favor. We have, thus far, spoken of evidence taken by commissioners or examiners. In particular cases, courts of equity are in the habit, when any material question of fact cannot be safely decided upon the THE COURSE OF A SUIT. 463 evidence taken under a commission or before an ex- aminer, to send the question to a jury, in order that their verdict may inform and satisfy the conscience of the court. This may be done, either by the court's ordering an action to be brought or by directing an issue. As an instance of the former, if a question arises w^hether a contract be usurious, and the facts are doubtful and disputed, the court has ordered an action to be brought on the contract. As an instance of the latter, where the due execution of a will is disputed, the court has directed an issue. The court settles the form of the issue, either with or without a reference to a master, and directs who shall be plaintiff and who defendant, and when and where the trial shall be had ; and may also determine what matters shall be admitted as evidence. This authority is, of course, subject to any legislative regu- lations that may be made, or have been made. Cor- rect practice requires that specific and distinct issues of fact should be submitted, that the conscience of the court may be advised by the special verdict responsive to the issues thus made. When the form of the issue has been settled, the party who is to be plaintiflF brings a feigned action against the party who is to be defendant, wherein he declares that he laid a wager of five pounds with the defendant, on the questions presented by the issue, and avers that the fact is as he contended it was, and there- fore he brings his suit for the five pounds. The de- fendant, admitting the wager by his plea, denies that the fact is as was alleged by the plaintiff. The issue is thereupon joined, and is tried in the usual way. In modem practice, the form of proceeding is more 464 THE COURSE OF A SUIT. simple. Both forms of proceeding are given in Part IV. of this treatise. The trial is conducted in the usual way, except so far as may be otherwise directed by the order award- ing the issue. When the verdict is found, it is certified by the court of law into the court of equity, together with the various questions of law which may have been discussed in the progress of the trial,"with the evidence out of which they arose ; and it is usual to state whether the court is satisfied with the verdict, or^ not. The regular time for directing an issue is at the hearing of the cause. In a special case, however, the issue may be directed by an interlocutory order be- fore hearing. Upon the return of this certificate, the party against whom the issue is found may apply for a new trial, set- ting out in his petition the grounds on which it is asked. A new trial will be granted by the court of equity, whenever it is dissatisfied with the verdict, either because of the misdirection of the judge, or be- cause it was against evidence, or where new evidence is discovered ; and sometimes because of the import- ance of the subject in controversy. The issue may be remanded to the same court of law or to another, The form of the issue may be changed and new con- ditions of trial prescribed. The party in whose favor the issue has been found, may, by petition, have the cause set down on the equity reserved, or for further directions, on which an order passes for hearing the cause at a particular day. As the issue is directed solely " for the purpose of in- forming the conscience of the court," the verdict is not conclusive or binding on the court, nor even a sue- THE COURSE OF A SUIT. 465 cession of concurring verdicts ; but the court can treat the verdict as a mere nullity, and decide against it. The decree or order directing the issue reserves all equities ; the cause, therefore, upon the coming in of the certificate of the court of law, stands as an original cause, and a formal decree passes upon and settles all rights. It is, according to the ancient authority of a court of equity, in its discretion to award or refuse an issue, except where an heir at law controverts the validity of a will of lands. In such case, the heir has a right to demand a trial by jury; and it would seem that a court of equity would, like a court of law, be bound by the verdict. In several of the individual States, the trial of facts in cases in equity is secured to the parties by constitutional or statute law, as a matter of right. The law, in granting such right to parties, takes away from the court of equity, where such right is asserted, the authority to determine any question of fact ma- terial to the decision, and refers it exclusively to the jury, the court retaining only the power to apply the law of equity to thje facts found by the jury, in the same manner and to the same extent as at common law. And in the States where the right of trial by jury in equity causes is secured by the Constitution, and the issues do not grow out of the pleadings, as in suits at law, but are framed by the court, in framing the issues, the court will allow the parties to submit to a jury all such material facts as are proper to be decided by them ; and when a verdict is rendered, and not set aside for good cause shown, it will be considered as settling the facts conclusively. The provision of the Federal Constitution," No fact once tried by a jury shall be otherwise re-examined in any court of the United 30 466 THE COURSE OF A SUIT. States than according to the rules of the common law," makes the verdict of the jury conclusive upon the parties and upon the court, whether the verdict be rendered upon a feigned issue sent out of equity to a court of law, or upon an issue framed upon a bill in equity in a court having jurisdiction both in equity and at common law, or in a civil suit at common law, subject however to be set aside for some cause known in the rules granting new trials at common law. So that in all the federal courts of equity, and in many of those of individual States, the verdict of a jury is as conclusive in a court of equity as in a coprt of law. When an important and difficult question of law arises in a suit in equity, a case may, if the court think proper, be stated and sent to a court of law, for its opinion upon it. But the opinion is not conclusive on the court of equity. When after a hearing of the merits of a cause, a case is ordered to be stated, the cause is laid over ; and on the return of the certificate of the court of law, the court of equity may decide forthwith, or order a reargument. This practice is obsolete where the same judges administer law and equity. A commission may be obtained at any time after the filing of the bill, to examine witnesses de bene esse, where the witness is ill, or very infirm, or is going abroad, or is the only witness to prove the case, or a material part of it. The application must be sus- tained by the affidavit of the party ; and the exam- ination is taken, to be read only in case the witness is not in a condition to be examined at the regular period for examining witnesses. The plaintiff may obtain a commission to examine de bene esse, at any THE COURSE OF A SUIT. 467 time after serving the defendant with a subpoena. But a defendant cannot obtain such a commission, nor can he regularly examine under the plaintiff's commission, until after he files his answer. Notice of the execu- tion of the commission must be given to all parties, who are at liberty to appear, as at the execution of all other commissions. It was the English practice to make the application by bill for such commission ; but the modern practice is to make it by petition, stat- ing the circumstances, after filing the bill. Upon the return of any commission to the proper officer of the court, the seals may be broken, and the depositions opened for inspection, called publication ; and if, upon examination, either party finds his proofs defective, he may move for a new commission to take any testimony which is relevant to the cause. But the reasonableness of the application, and of the nature of the testimony wanted, and why it was not procured before, must be proved by affidavit ; and usually the condition is imposed »that the hearing of the cause shall not be delayed. All objections to the testimony, apparent on the record, may be made, and are usually made at the hearing of the cause. Hearing the cause, and signing and enrolling the decree. A book or docket of causes to be heard is made out at the commencement of the term, for inspection ; and the suits set down for hearing will, on application, be taken up and decided in the order in which they stand, unless postponed by consent or the order of the court ; and a day may, in like manner, be fixed for the hearing of any cause or motio,n. 468 THE COURSE OF A SUIT, We have already shown that there, are two several modes in which causes are brought before: the court with a view to a decree. The first is, hearing on bill and answer ; and we showed that the court is confined to considerations based on the bill and answer for the foundation of the decree. The second is, by rephca- tion ; and we showed how far the pleadings furnish considerations as a foundation for the decree ; but that the testimony of witnesses, and sometimes the verdict of a jury, and documentary proofs, are the chief con- siderations for the court when the cause is brought before it for a decree by replication ; and that such tes- timony and verdict and proofs are filed in the cause, making a part of the record. The cause may be argued ore ienus, or submitted on notes. When the cause is argued orally, the coun ■ sel for the plaintiff opens the pleadings and evidence; and the points arising thereon ; the counsel for the defendant succeeds, and the counsel for the plaintiff concludes. If the cause is submitted without oral argument, each party ought, to submit to the court an abstract of the case, with short notes of his argu- ment. In cases of difficulty, the decree is sometimes drawn by the chancellor or judge in equity. But in ordinary cases it is expected that the solicitor for the complain- ant, guided by the opinion of the court as expressed at the hearing, will furnish the draft of the decree. The decree is signed by the chancellor or judge in equity, and filed by the register of the court. By the English practice, the decree must then be enrolled, in order to become a record of the court. The party wishing to enroll makes a copy of the decree, preceded by a state- ment of the prayer of the bill, and some other details. THE COURSE OF A SUIT. 469 This copy is termed the docquet, and is left with the record and writ clerk, together with the original de- cree. He compares them, and if he finds the doc- quet correct, he procures the signature of the lord chancellor to it, and then copies the docquet and sig- nature on parchment rolls. The docquet and engross- ment are reserved in the office, as evidence of the enrollment. In Maryland, a decree is to be taken and considered as enrolled when it is signed by the chan- cellor or judge in equity, and filed by the register, and the term during which it was passed has expired. And it is probable that no such proceeding as the English mode of enrollment is used in the equity courts of any of our States. And in the United States equity courts, decrees are deemed to be recorded as of the term of the court in which they are passed, though not then actually spread upon the record, and in effect are con- sidered as enrolled of that term. And as decrees in all the courts of equity in this country are matters of record, and are deemed to be recorded as of the term of the court in which they are passed, they must in effect be also deemed as enrolled, which is only another term for recorded. The decree. Decrees are interlocutory or final. It seldom happens that the first decree is final. Sometimes long accounts are to be settled, incumbrances and debts in- quired into, and other facts, either not stated in the pleadings, or so imperfectly ascertained by them that the court is unable to determine finally between the parties. Therefore a reference by an interlocutory decree, for inquiry before a master or auditor, or a 470 THE COURSE OF A SUIT. trial of facts before a jury, or some other proceeding becomes necessary to inform the conscience of the court. A decree is final when all the circumstances and facts material and necessary to a complete ex- planation of the matters ifi litigation are brought before the court, and so fully and clearly ascertained by the pleadings on both sides, that the court is enabled from thence to collect the respective merits of the cases of the parties litigant, and to determine fully and finally between them. The distinction between interlocutory and final decrees is very obvious in their definitions ; but in its application to particular cases, it has always and still does create difficulties in practice, some courts decid- ing a decree to be interlocutory, where others decide a decree precisely like it, in an identical case, to be final. We must, therefore, in a brief consideration like this, rest in the definitions, and leave the student, in doubt- ful cases, to the decisions of courts where the special difficulties have been considered. Perhaps no exact boundary line is possible between the two kinds of decrees, in the varying circumstances of cases arising in practice, so as to insure unanimity of judicial de- cision. And the difficulty of applying the distinction in doubtful instances can produce but little, if any, in- convenience in practice. The difference between an interlocutory and a final decree may be illustrated by the difference between an interlocutory and a final judgment at law. If an action at law is brought for damages only, and the issue* is an issue at law, or an issue of fact not tried by a jury, the judgment is only that the pliintiff ought tp recover his damages, without specifying the amount. For as there has been no trial by jury in the case, the amount of THE COURSE OF A SUIT. 47 1 damages is not ascertained. The judgm'ent is therefore interlocutory. A writ of inquiry by a jury to assess the damages then issues ; and upon the return of the inquisition or verdict assessing the amount of damages, the plaintiff is entitled to another judgment, that he recover the amount of damages so assessed. This is a final judgment. Decrees are, in their regular form, divisible into four parts. These are, i. The title of the cause, and the date ; 2. The proceedings in which the decree is made, and the grounds on which it is founded ; 3. The declaration of right; 4. The ordering part. By the practice of the United States courts of equity, pre- scribed by rules ordered by the Supreme Court, the second part of the decree is omitted. (See Rule 86, in Appendix to this volume.) The declaration ot right does not always occur in a decree. Its most frequent occurrence is where the court declares what is the true construction of written instruments, and particularly of wills. The ordering part, which occurs after the declaration of right, if any, is itself occasionally omitted when the decree is merely declaratory. The ordering part directs the doing such such acts as are necessary to give the plaintiff such relief as he is entitled have on that particular occa- sion, such as the payment of money, or the execution of deeds, or the like. 472 COURSE OF A SUIT AFTER DECREE. PART III. COURSE OF A SUIT AFTER DECREE, AND INCIDENTAL PROCEEDINGS. We have traced the regular steps by which a final decree is obtained by a plaintiff against a defendant. In some cases this decree may put a complete end to the suit ; as where a bill is dismissed without costs, or where a merely declaratory decree has been sought. But this can rarely happen ; for there will generally be some costs to be paid by one party to another, even if nothing more remained to be done. And in a large proportion of cases various proceedings are necessary under the decree to the substantial success of the suit. We will here offer some considerations on interloc- utory decrees, strictly so called, which refer the case to a master in chancery, or to an auditor, to inquire into the matters referred, and to digest the materials and report his proceedings to the court for a final decree. The court may refer the cause generally, and on the return of the report determine such questions as may be contested by the parties. Or it may, in the first instance, decide any principle which the facts already before the court may suggest, or all the princi- ples on which the purpose of the reference is founded. The propriety of the one course or the other depends on the nature of the case, and is within the discretion of the court. Where the interlocutory decree establishes the prin- ciples on which the report is to be based, then the con- troversy turns exclusively on the question of their cor- rect application by the master or auditor in his report. COURSE OF A SUIT AFTER DECREE. 473 And the court determines the question either by set- ting aside the report, or by confirming it by a final decree. As the United States Circuit Courts exercise equity jurisdiction sitting in the different States, and their procedure is the procedure, in substance, common to the courts of equity of the several States; and it is desirable that all courts of equity should have a uni- form practice, we will refer, as a guide in proceedings before masters, and as to exceptions to their reports, to the rules prescribed by the Supreme Court of the United States, contained in the Appendix to this vol- ume. These rules, together with the various forms in Part IV. of this treatise will satisfy every need ■ in equity practice in proceedings before masters in chan- cery under interlocutory decrees of reference. And the proceedings under a reference to an auditor are similar to those before a master. An interlocutory decree for an account refers the cause to a master in chancery or an auditor, with direc- tions to take the account from the evidence in the cause, and such other evidence as may be produced before him, by any of the parties, on giving them no- tice. After a decree for an account, all the parties become actors ; and any party may require the master or auditor to proceed. The evidence offered must be of the same kind as would be required to sustain like points on the final hearing. The plaintiff" may read the answer, or any portion thereof, to sustain a charge against a defendant. But the answer cannot be read by the defendant in proof of a discharge set up by him, unless the allegation relative thereto is strictly respon- sive to the bill, or unless the matters of charge and dis- charge are alleged to be parts of one transaction ; as 474 COURSE OF A SUIT AFTER DECREE. when the answer states that on a particular day the defendant received a sum of money and paid it over. By the old English practice the master does not state the evidence in detail, but only draws and reports his conclusions. But in some of the United States, the master or auditor reports all the depositions laid before him, together with his conclusions upon the law and evidence, and an account stated in conformity with his views of the equity of the whole case. The prac- tice of the United States Courts in this respect is reg- ulated by Rule 76 in the Appendix to this volume. The examination may be either upon written interrog- atories, which is the more regular mode, or viva voce, aceording to the particular practice of the court. By the old English practice the creditors who come in after the institution of the suit, do so by bill or peti- tion, concisely stating the nature of, his claim, and praying to be admitted as a coplaintiflf accordingly. But a practice less formal and strict has grown up in some of the courts of this country, allowing a creditor to come in and participate by merely filing the voucher of his claim with the register of the court. The cred- itors or claimants coming in under the decree become parties thereto, and in case of delay on the part of the suing creditor, may claim the right to conduct the suit. As soon as the master's or auditor's report has been filed, the next step is its confirmation by the court. The regular mode of confirmation is by an order nisi, made on a motion of course, directing that the report shall stand confirmed, unless the defendant shall, within days after notice, show good cause to the contrary. If no cause is shown within the time speci- fied in the order nisi, a further order is made on mo- tibn, confirming the report absolutely. COURSE OF A SUIT AFTER DECREE. 475 If any of the parties interested are dissatisfied with the report, they may file exceptions after service of the order nisi, and show them as cause against its being made absolute. The practice in regard to exceptions to the master's report, in the United States courts, is regulated by Rules 83 and 84 in the Appendix to this volume. The exceptions which, like the pleadings and inter- rogatories, require the signature of counsel, are a written enumeration of the alleged errors, and of the corrections proposed ; and they should be so framed as not merely to allege errof in general terms, but to enable the court to decide distinctly on each point in dispute. If, however, there be error apparent on -the report, as, for example, if the facts stated contradict the conclusion, it is unnecessary to except. And if the master disregards the instructions and directions of the court, or where he does not furnish the facts necessary to enable the court to make a decree, the report will be set aside, though no exceptions have been filed. The next step after filing exceptions is, that they should be heard and determined by the court, and in doing this there are three courses open for adop- tion : 1. They may be disallowed, or allowed absolutely, which has the effect of at once confirming the report as it stands, or with such changes as the allowance of the exceptions may make. 2. If the facts are imperfectly stated in the report, so that no judgment can be formed as to the proper conclusion ; or if the existing evidence is unsatisfac- tory, but it is possible that other evidence exists which, in consequence of a favorable finding, has not been 476 COURSE, OF A SUIT AFTER DECREE. adduced ; or if the nature of the matter contested, or tjie frarne of the exceptions is such that their allow- ance shows a necessity for further investigation, it may be referred back to the master to review his report, continuing in the mean time the reservation of further directions, and either allowing the exceptions, or making no order thereon. On a reference back to re- view, the master may receive additional evidence ; but if it be accompanied by an allowance of the exception, he can come to no conclusion inconsistent with the terms of the exception. If no order is made on the exception, his finding on feview is unfettered. 3. If the suit has taken such a course that, at the time of hearing the exceptions, it is apparent that whatever order be made, the same decree will follow, the court will decline to adjudicate on them, and may proceed to decree on further directions, as if no excep- tions had been filed. The plaintiff may, at his discretion, set down ex- ceptions for hearing at the time he sets down the cause on further directions. But the propriety of so doing will depend on the probability of the exceptions re- quiring or not requiring a review of the report. For if there be a reference back to review, the cause cannot be heard on further directions, and the ex- pense of setting it down will have been uselessly incurred. When the exceptions have been disposed of and the report confirmed, the cause is heard on further directions, and this may be repeated from time to time, as often as further directions are reserved. The decree on further directions is confined to carrying out the equities appearing on the report, con- sistently with the original decree. If circumstances COURSE OF A SUIT AFTER DECREE. 477 have occurred since the original decree which vary the form of relief required, but leave the substantial equity the same, they may be stated in a petition to be heard with the cause. But no order can be made on further directions which will vary or impugn the original decree, whether on a point which it had expressly decided, or one which, being raised by the pleadings, and not depending on the questions referred, has been unnoticed, and thus by implication disallowed. If the original decree is erroneous, the proper mode of correction is by a rehearing, a review, or an appeal. A decree thus made without any reservation of further directions, constitutes a final decree ; and after it has been pronounced, the cause is at an end, and no further hearing can be had. It sometimes happens, however, that although the decree requires no reserva- tion of further directions, yet there is a possibility of ■future interests arising which, having a potential exist- ence only, cannot then be the subject of judicial decis- ion, and which therefore prevent the cause from being altogether disposed of. The partition of real estate between co-owners is effected, in equity, upon a bill filed for the purpose. The first decree in partition is interlocutory, founded upon the evidence in the cause, or on a master's or auditor's report ascertaining the interests of all parties, directing a commission to persons nominated by the parties, or, if necessary, by the court, empowering them to enter on and survey the estate, to make a. fair par- tition thereof, to allot their respective shares to the several parties, and to make a return of their having done so to the court. In making the allotment, the commissioners ought to look to the respective cir- 478 COURSE OF A SUIT AFTER DECREE. cumstances of the several parties, and to assign to each that part of the property which will best accom- modate him. The return of the commissioners, when made, is confirmed by the court. The return is regarded in the same light as a verdict at law, and will only be set aside for such cause as would induce a court to grant a new trial. The confirmation of the return by the court does not operate on the actual ownership of the land, so as to divest the parties of their undivided shares, and reinvest them with corresponding estates in their respective allotments, but it requires to be perfected by mutual conveyances. The next step therefore, after confirmation of the return, is a decree that the plaintiffs and defendants do respectively con- vey to each other their respective shares, and deliver up the deeds relating thereto, and that in the mean time the allotted portions shall respectively be held in severalty. If any of the co-owners have settled or mortgaged their shares, directions will be given for framing the conveyances so that all parties shall have the same interests in the divided shares which they before had in the undivided shares. If the infancy of the parties or other circumstances prevent the imme- diate execution of conveyances, the decree can only extend to make partition, give possession, and order enjoyment accordingly until effectual conveyances can be made. If the defect arises from infancy, the infant must have a year and a day after attaining twenty-one years to show cause against the decree. In addition to the decree for a portion, the court may also, if either of the co-owners has been in exclusive receipt of the rents, decree an account of his receipts. In Maryland the final decree confirms the portion. COURSE OF A SUIT AFTER DECREE. 479 and declares that each party shall hold his part in severalty, and the decree operates as a conveyance; and in all cases where a decree vesting a legal title to land in the complainant, is made, by statutory enact- ment, to operate as a conveyance, delivery of posses- sion may be enforced by injunction and habere facias possessionem, forms of both of which writs can be seen in Part IV. of this treatise, as also the writ of assistance. In case the estate cannot be exactly divided, the court will decree pecuniary compensation to one or more of the parties, for owelty or equality of partition, or charge part of the land with a rent, servitude, or easement for their benefit. At any time before the final decree, exceptions may be filed against the return of the commissioners, for misconduct on their part, or irregularity in the exe- cution of the commission, and perhaps, also, for irreg- ularity in the partition. If the exception relies on matter apparent on the face of the proceeding, it is heard at the time of the final 'decree. If matter in pais is relied on, the party excepting must procure an order for taking depositions, which will also provide for the hearing. Courts of equity are more frequently applied to for a sale for the purposes of partition among the heirs, than for an actual partition of the inheritance. The decree for the sale is final, as it determines the liability of the property to be sold. The proceeds of the sale are distributed by a future order when the cause comes on to be heard on further directions. This order is merely in execution of the decree, which was passed in order that the proceeds of sale might be distributed amongst those entitled thereto, according to the prayer of the bill. 480 COURSE OF A SUIT AFTER DECREE. Judicial sales in equity are effected by masters in chancery, trustees, or some other ministerial agent of the court, and the proceedings, though substantially the same everywhere, are more or less modified by leg- islation and the rules of different courts. The sales are made on the terms prescribed by the decree, and are reported, subject to exceptions by parties interested, to the court for ratification, and the purchase money is then distributed by an audit, made under the direc- tion of the court, to the parties entitled, whether credit- ors, or distributees in partition, in accordance with the purpose of the suit in which the sale is decreed. Forms in Part IV. of this treatise will be a guide to the practitioner. Assigning a widow's dower in equity, in regular practice, is by commissioners in like manner of mak- ing partition between co-owners of real estate. But such changes have been made in the matter, in differ- ent States, that the local practice must be ascertained by the practitioner, and cannot be pointed out in a treatise like this. It is a general rule in equity practice, that a decree cannot be passed against the complainant compelling him to give relief to the defendant. The court can, generally, only give relief to the complainant accord- ing to the prayer of his bill, or else dismiss his bill. Out of this limitation of relief to the plaintiff, the remedy by a cross-bill has grown up in equity pro- cedure, A defendant sometimes finds it necessary to file a bill against the com.plainant, either for a discovery in the original suit ; or for relief which cannot be ob- tained by a decree in that suit. And when any ques- tion arises between two defendants to a bill, it becomes COURSE OF A SUIT AFTER DECREE. 481 necessary for one of the defendants to file a cross-bill against the plaintiff and the other defendants to the original bill, or some of them, to bring the matters in dispute completely before the court, litigated by the proper parties and upon proper proofs, so that a com- plete decree may be made settling the rights of all parties involved directly and indirectly in the original suit. A cross-bill is in the nature of a defense to the original bill ; and therefore a plaintiff to a cross-bill cannot compel an answer until he himself has an- swered the original bill. An answer to a cross-bill may be enforced by the same process that is used to compel an answer to an original bill. Testimony taken in the original cause may be used at the hearing of the cross-cause ; and regularly the two causes ought to be heard together. A cross-bill is almost unneces- sary for the purposes of discovery, as by an almost universal practice founded on legislative enactment, the defendant in equity may exhibit interrogatories to the plaintiff. There is a practice in some courts of equity, as in Maryland, for instance, to give relief between defend- ants ; and to a defendant against a plaintiff. On a bill by a vendee against the vendor, the usual decree is for payment of the purchase money, on the one hand, and for a conveyance on the other. And it.is the universal practice in equity, where there is a decree for an ac- count upon a dealing in trade, at a suit between part- ners, that each party is clothed with the rights of an actor ; and the final decree may be in favor of the one or the other, according as the balance may appear. And though a plaintiff may ordinarily, as of course, on application to the court, have his bill dismissed at any stage of the proceedings, on payment of costs, yet 31 482 COURSE OF A SUIT AFTER DECREE. where a decree for such account has been passed, as both parties are reciprocally plaintiffs and defendants, he cannot do so. And if, after such decree, the suit should abate by the death of either party, plaintiff or defendant, the surviving party, or the representative of the deceased party, may have it revived by a bill of revivor ; because the defendant, after such decree, has as direct an interest in the continuation of the suit sis the plaintiff, and may ultimately be as essentially bene- fited by it. The plaintiff can therefore get. rid of such case only by a final decree, or by having entered on the docket the common t\A&, further proceedings, and upon the default of the defendant to proceed, obtain leave to dismiss his bill at the next term. The form of the order in such case is : " Where- upon, it is ordered, that the defendant proceed in this case on or before the day of the next term, or the plaintiff may, at any time thereafter, dismiss his bill, with costs. And it is further ordered, that the reg- ister enter upon the docket, as at the instance of the plaintiff, the rule further proceedings" After such rule is entered, and the defendant neg- lects to proceed according to the order, the bill may be dismissed by the order of the plaintiff's solicitor, given to the register. The examples just given seeming to ignore the difference between plaintiff and defendant in a suit in equity, do not impinge in the slightest degree upon the principle, that a defendant cannot pray anything in his answer but ■ to be ' dismissed the court. If he has any relief to pray, or discovery to seek against the plaintiff, he nrust pray for it by a cross-bill. A defendant cannot make his answer a cross-bill, and under it obtain any specific decree in his favor, even COURSE OF A SUIT AFTER DECREE. 483 though the parties elect to consider the answer a cross- bill. In some of 'the States of our Union, by express statutory provision, an answer is treated as a cross- bill, when the whole matter which would justify a cross-bill is set forth in the answer ; and the same relief is obtained as by a cross-bill. This is however statutory practice. We have thus considered every proceeding which is necessary, in equity procedure, to bring before the court every matter of fact and proof which can enable the court to pass a final decree on all the equities in the cause, and give to both plaintiffs and defendants their respective rights involved in the suit. Assuming therefore a final decree to be passed, we will next con- sider the steps which can be taken against it. Rehearing and reviewing decrees. We now propose to consider the course adopted by a party who considers himself aggrieved by a decree or order of the court, and the means provided for en- abling him to have it set right A decree may be reversed, by a petition for a re- hearing, by a bill of review, and by an appeal to an appellate court. Clerical mistakes in decrees or orders, or errors arising from any accidental slip or omission, may, at any time before enrollment, be rectified on motion or petition. But every order and decree is conclusive in regard to its subject-matter, until it is altered or reversed in one or other of the modes be- fore enumerated. And a final decree before enroll- ment can only be altered on a rehearing ; and after 484 COURSE OF A SUIT AFTER DECREE. enrollment, only upon a bill of review. And the same rule of alteration applies to interlocutory decrees or orders. Therefore the regular practice is for the court not to suffer a decree for an account to be signed and enrolled ; because if there should have been any defect in the directions of the decree, the enrollment ties up the court from rehearing it. Decrees for an account are therefore left open, in order to give parties an op- portunity to rehear, when directions in a decree are imperfect (2 Atk. 383.) Chief Baron Gilbert, in his Forum Romanum, says ; " In the Court of Chancery all orders are interloc- utory till they come to the definitive sentence, which is signed by the court ; for that sentence signed and enrolled is the definitive sentence in the cause, and all preparations before that are but interlocutory ; for the decree pronounced on the hearing, which is taken down by the register, is but an interlocutory sentence till it comes to be signed by the judge of the court and enrolled. " Hence it is, that if the counsel are dissatisfied with the sentence or decree as it is first pronounced, they may sign a petition for a rehearing, and the court will grant one rehearing at least, before they sign and en- roll such decree." The court cannot itself reconsider and reverse its opinions once expressed and made the groundwork of subsequent proceedings, without surprise, and perhaps irremediable injury to parties. Hence the propriety of a rule which requires a petition for a rehearing, ad- dressed to the court, stating briefly the circumstances of the case, and the supposed errors in the decree, and the grounds of the objections. COURSE OF A SUIT AFTER DECREE. 485 It has been the practice in some courts of equity, when the rehearing is asked for the purpose of intro- ducing new evidence, to make the apphcation by peti- tion accompanied by the affidavit of the party, verify- ing the facts to be proved, and affirming that they were discovered since the date of the decree, or at a time when they could not be introduced into the cause at the former hearing. But it is contrary to the funda- mental principles of equity procedure to allow new evidence, at a rehearing, to be brought forward by a mere order upon the petition. The application should be for leave to file a supplemental bill to bring for- ward the new evidence, and for a rehearing of the cause, at a time when the supplemental bill should also be ready for a hearing. Upon the supplemental bill testimony could be taken on both sides to meet the new exigencies of the case. (Jenkins v. Eldridge, 3 Story, 303.) Rehearing is not favored by the courts. And when granted, it is always upon strict limitations as to the evidence permitted. In order to avoid the danger of perjury, which would be incurred by a witness depos- ing a second time to the same fact, after having seen where the cause pinched, and how his testimony bore upon it, as well as for other reasons, former witnesses are not allowed to testify, on a rehearing, to the same facts. And the rehearing will be granted under the terms that the interrogatories be settled and approved by the master, who will take care that the same wit- ness is not a second time examined to the same facts. Should this requirement be not observed by the mas- ter, the deposition of the witness would be suppressed by the court. And merely cumulative and corrobora- tive evidence is not allowed where it is oral corrobo- 486 COURSE OF A SUIT AFTER DECREE. rating evidence on one side, or contradicting evidence on the other. But where, at the original hearing, a document which was evidence in the cause was omitted to be read, or where the proof of an exhibit in the original cause was omitted, the court will make an order allowing them to be read or proved, saving just exceptions. And where a fact existed at the former hearing, but was not known to the party or put in issue by either party, it may be proved, if it be in issue. But new witnesses will not be allowed to prove facts then known or in issue. A bill of review may be used to procure the re- versal of a decree after signature and enrollment. It may be brought upon error of law apparent on the decree, or on occurrence or discovery of new matter. By the earlier and regular practice it was usual to draw up decrees with a special statement of, or reference to, the material grounds of fact on which the decree was based. To a, bill of review of a decree so drawn, the defendant or party insisting on the benefit of the de- cree usually puts in a plea of the decree and a demur- rer against opening the enrollment. There seems to be no necessity of pleading the decree so drawn if it is fairly stated in the bill, and a demurrer will be suffi- cient. And where, as in the United States courts and now in courts generally, the decree is drawn up with- out any statement of facts upon which it is based, and the bill of review for error apparent is founded upon the whole record, consisting of the bill, answer, and the other pleadings, and the decree, which must be stated in the bill, a demurrer alone is the proper defense to the bill against opening the enrollment. If the plea and demurrer, or demurrer where it only is put in, are ruled good, the bill of review will be dis- COURSE OF A SUIT AFTER DECREE. 487 missed with costs. If they are overruled the decree will be rescinded, and a new decree will then be passed. In arguing a demurrex to a bill of review, nothing can be read but what appears on the face of the decree, or on the record. But after the demurrer is overruled, the plaintiff is at liberty to read the bill, answer, or any other evidence, as at a rehearing, the cause being then equally open. After a demurrer to a bill of review has been allowed, a new bill of review on the same ground cannot be brought. But if on a bill of review the orig- inal decree is reversed, another bill may be filed to review- this second decree. A bill of review for errors apparent upon the face of the record will not lie after the time when a writ of error could be brought, for courts of equity govern themselves in this particular by analogy of the common law in regard to writs of error. In the courts of the United States bills of re- view for errors apparent upon the face of the decree are limited to five years, that being the limitation of writs of error upon judgments at law. But a more accurate doctrine, it seems to us, is, that the time with- in which a bill of review for errors apparent on the decree must be brought, is, by analogy, the same as that within which an appeal from a decree may be taken ; and this is by law different in different States, being in Maryland nine months from the date of the decree. A bill of review upon newly discovered facts or matter cannot be brought without leave of the court. A petition is therefore filed, setting out shortly the facts of the case, together with the new matter which is proposed to be introduced ; and the petition must be accompanied by the affidavit of the party that the matter could not be used by him at the former hearing. 488 COURSE OF A SUIT AFTER DECREE. Upon this petition an order nisi is passed. The op- posing party may deny that the evidence proposed to be introduced was newly discovered ; upon which de- positions may be taken, and the issue must be settled before the leave is granted. The leave of the court being obtained, a formal bill of review is to be filed ; to which the defendant demurs, pleads, or answers, as he may be advised ; and the cause progresses in the usual way to hearing. The execution of the decree is not, in general, stayed by the granting of a rehearing, or by filing a bill of review. It is in the discretion of the court to suspend the decree simply, or on such conditions as may appear reasonable. If the decree has been executed, and is afterwards reversed, pro- vision will be made for a restitution of the party ag- grieved to his original rights. It does not seem to be settled by authority whether the limitation of time for bringing a bill of review upon newly discovered facts and evidence is the same as that for bringing a bill of review for error of law apparent on the decree. It does, not, however, seem to be of much practical importance ; as granting leave for filing such bill is in the discretion of the court, and lapse of time, in connection with other circumstances, will have weight with the court for refusing the appli- cation. Appeals. The proceedings, as we have seen, on an 'applica- tion for a rehearing and on bill of review, are before the court which pronounced the decree. Another mode of rectifying any error in the decree is by an appeal to a court of errors or appellate jurisdiction. After a de- cree is enrolled it is a conclusive decree in equity, and COURSE OF A SUIT AFTER DECREE. 489 its eiTors, if any, can only be corrected by the expen- sive and dilatory proceeding by bill of review or by appeal. If, therefore, either party desire to have a re- hearing he should enter a caveat against enrollment, which will stay it long enough to give him an oppor- tunity to file his petition for a rehearing. We have considered the proceeding by bill of review against an enrolled decree ; we will now consider that upon appeal. The decrees of the chancellor in England were originally final and conclusive. No appeal from his decision ' seems ever to have been allowed before 1 58 1. On the growth of the chancellor's jurisdiction in equity, the right of appeal to the House of Lords became established. The appeal was heard upon a mere paper petition. In this country the appeal is taken in substantially the same- way, varying in diflfer- ent jurisdictions. In this country the right of appeal is generally confined to final decrees. But in England there is no practical distinction as to appeals between final and interlocutory decrees. The decree may be reversed or affirmed simply, or it may be corrected or modified by the court of appeal. If the decree be sub- stantially right, the practice in England was to affirm it with modifications or exceptions. But in some of our courts, if the decree is found to be wrong in any particular, it is reversed, and a new decree is entered. And if it shall appear to the Court of Appeals that, for the purposes of justice, there ought to be further pro- ceedings in the court below, the cause may be re- manded for further proceedings, and the court in its order remanding the cause may express the reasons for doing so, and its opinion on all points which have been made before it, and which may be presented by 490 COURSE OF A SUIT AFTER DECREE. the record ; and the reasons and opinion contained in the order shall be conclusive on the court below. In such case, the party claiming the benefit of the decree of the appellate tribunal, should file a petition in the inferior court, setting out briefly the proceedings in the appellate tribunal, and all the material parts of the order or decree, and pray for such order as the case may require. A copy of the decree of the appellate tribunal should be filed with the petition. The court below thereupon passes an order which virtually rein- states the case before it, and it is proceeded with as if no appeal had been taken. The course of procedure in appeals is, to a great degree, regulated by statute in most of the United States, and also in the Federal courts of equity. It is therefore inexpedient to treat the general subject more in detail. Execution. We will now consider the manner of compelHng obedience to a decree. The power of the court for this purpose, like that for compelling appearance or answer, was originally confined to process of contempt. If the disobedience was of an order for appearance and answer, it was a contempt of the subpoena ; if for performance of a decree, it was a contempt of the writ of execution, which, like the subpcena, issued under the great seal. In either case, the process of contempt was by the five successive steps of attachment, attach- ment with proclamations, writ of rebellion, sergeant-at- arms, and sequestration ; or in the case of a corpora- tion, by distringas and sequestration. The only differences were, that an attachment for non-perform- ance of a decree was not, like an attachment on mesne COURSE OF A SUIT AFTER DECREE- 491 process, a bailable writ ; that in the particular instance of a decree for delivering up an estate, the court might effectuate its own order by issuing a writ of assistance to the sheriff, commanding him to put the plaintiff in possession ; and that on a decree for payment ot money, the receipts under a sequestration, though in- tended as a means of punishment, might indirectly operate as a performance. The manner of compelling obedience to the decrees of the United States equity courts is prescribed by the 8th and 9th Rules of Practice in Equity, which are in the Appendix to this volume. The practice in compelling obedience to the decrees of the equity courts of the different States is regulated to a great extent by statute. And everywhere the processes compelling obedience have been, from time to time, made more and more summary, and more like the modes of executing the judgments of courts of common law. And this modified practice may, in a general way, be stated to be : Where the decree is for the payment of money, the party may resort to an immediate se- questration or to a fieri facias ; where it is for the deHvery of the specific property, an immediate injunc- tion may be issued, which may be followed by the usual process for contempt, or by a habere facias possessionem^ And where the party is entitled to a conveyance, release, or acquittance, upon the refusal or failure of any party to execute a conveyance in ac- cordance to the directions of the decree, the decree * The writ of possession, or habere facias possessionem, is the peculiar execution of the action of ejectment. By statutory enactment, it has in some States been extended as a means, of enforcing executions of courts of equity. 492 COURSE OF A SUIT AFTER DECREE. itself will operate as a conveyance ; or adopting the modern English practice introduced by statute, when the execution of any instrument, or the making of any transfer or surrender is decreed, the court shall have authority, on default by the defendant, to direct a master to execute, surrender, or transfer in his stead. And where the decree is against a corporation, a distringas, and then a sequestration, may be had to enforce obedience. And as illustrative of the effi- ciency of the modem remedies against corporations established for private emolument, we will quote from the opinion of that great master of procedure in equity. Chancellor Bland, of Maryland, in McKira v. Odom (3 Bland, 422) : " Evils and embarrassments (says the chancellor) must arise from a rigid adherence to the notion that such a corporation can only be forced to respond to a suit against it by distringas and secjuestration of its property. Take the case of a turnpike road company that had refused to answer a bill in chancery. The road itself could not be taken and closed by virtue of a distringas or sequestration, because that, as one of the highways of the republic, it could not, and ought not to be, obstructed by any process whatever against those who^ only interest in it is the toll they are allowed to exact in consideration of keeping it in repair. Consequently, in this instance, the only method by which the court could effectually levy upon its property, as a means of enforcing an an- swer, would be to appoint a sequestrator or receiver to take the place of the company's toll-gatherer at each gate along the whole line of the road." The same adaptation of the remedy to circumstances may be applied to enforce obedience to a decree against a cor- poration of a like character. COURSE OF A SUIT AFTER DECREE. 493 Costs. Costs in equity do notr as at common law, follow the judgment of the court as a legal consequence, but are subject to the discretion of the court, and depend on circumstances. It is, however, the general inclina- tion of the court to make costs follow the event of the suit ; and cases occur in which the recovery of a small part of the demand is made to carry costs, although the principal subject of controversy may be decided in favor of the defendant. Costs are never awarded against an executor or trustee personally, unless in a case of fraud or gross misconduct. The fund or estate is liable to all costs which may be necessary in the course of its adminis- tration or application, and is properly chargea'ble with the full costs incurred by the trustee or executor in its defense. But if, in the progress of a cause an executor offers untenable and vexatious grounds of defense, costs may be awarded against him personally. On a bill of interpleader the complainant is generally allowed his costs out of the fund. The subject is, to a considerable extent, regulated by statute in the several States of our Union, but they do not change the general principles which we have here stated. Infants, idiots and lunatics. Proceedings in regard to the estates of infants, idiots, and lunatics are regulated in all the States of our Union, more or less, by statute ; and are so much more summary than general equity procedure, that it is impracticable to make a treatise like this a guide for practice in such cases. We therefore refer to what is 494 TliE FORMS OF EQUITY PROCEDURE. said on the several subjects by Mitford, and to some forms at the end of this chapter, relative to proceedings in regard to infants' estates, as furnishing the general doctrines on the subject. PART IV. THE FORMS OF EQUITY PROCEDURE. The great utility in consulting and adhering to the settled and well understood forms and language of courts has been often noticed by eminent judges. (8 Ves. 303 ; 3 Ves. 13 ; 19 Ves. 593 ; 5 D. M. G. 534; i M. & K. 246.) It is, therefore, necessary to understand all the different forms that constitute the administrative machinery which courts of equity have, from time to time, devised to meet the exigencies of cases as they arise, working out the equities on both sides, protect- ing defendants as well as relieving plaintiffs. These forms will be presented after some preliminary remarks upon their general characteristics. Causes of suits in equity, and the defenses, are the same always and everywhere, and therefore must be stated in substantially the same words ; and the forms of statement must be, in substance, the same. There- fore, the following forms, which have been gradually developed in general practice and established by usage as the regular forms of equity procedure, can be modi- fied according to the special rules of every, court, and thus serve as forms in every court of equity. Federal and State. They are, therefore, furnished as examples for students to learn, and practitioners to use, either THE FORMS OF EQUITY PROCEDURE. 495 exactly as they are, or as modified by special rules established by legislation or orders of court. A book on equity procedure, designed, as this is, for uni- versal use, can furnish only the typical forms of regular practice, and not the various modified forms of different courts in the several States of the Union. Most of the forms have been selected from books of estabhshed reputation as guides in equity procedure. But some of the bills have been selected from forms prepared by the present writer in his own practice, to suit cases so unusual in their exigencies that no forms could be found in books, setting forth the peculiar combinations of facts out of which the equities arose upon which the prayers for relief were founded. The Constitution of the United States, in establish- ing the judicial department of the government and defining its jurisdiction, recognizes in the most abso- lute manner the distinction between cases in law and cases in equity ; and the judiciary act of 1 789 recog- nizes the distinction ; and the Supreme Court of the United States has held, in a series of decisions, that the sixteenth section of the act is only declaratory, and makes no alteration in the rules of equity on the sub- ject of legal remedies. (3 Pet. 215.) And that the remedies in the courts of the United States are to be, " not according to the practice of the State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of those principles." (3 Wheat. 222, 223.) And in 4 Wheat. 108, Chief Justice Marshall said, "The Circuit Courts of the United States have chancery jurisdiction in every State ; they have the same chancery powers and the same rules of decision in all the States." 496 THE FORMS OF EQUITY PROCEDURE. Regular equity procedure, as developed and estab- lished by the English High Court of Chancery, is as much the procedure of the Federal courts of equity as of those of the States. As this edition of Mitford is designed to teach the regular equity procedure, it has been thought best to give, in the Appendix of the volume, the rules of the Supreme Court of the United States modifying equity procedure, rather that to state the modifications in foot notes at the places where the regular doctrines are given. These modifications are, however, so partial as not to affect equity procedure materially. The system stands unchanged in the Federal courts. The form of a bill in equity will be found amongst the forms which follow, as' modified according to the re- quirements of the rule prescribed by the Supreme Court of the United States. As Federal courts are located in all the States, and the Supreme Court of the United States has prescribed rules of practice for all of them, both at law and in equity ; and as, where appeals are taken to the Supi-eme Court in cases of equity, the rules regulating them have connection with the rules regulating cases at law carried up by writ of error, the rules for both courts, and also the forms of process of the Supreme Court, are given in the Appendix to this volume. That equity practice in the Federal courts is con- nected with the practice at law, is shown by the pro- visions of "An act to further the administration of justice," approved June i, 1872, to be found in the be- ginning of the Appendix to this volume. And in order to make the practical information about the Su- preme Court complete, there is given in the Appendix "An act to fix the time for holding the annual session THE FORMS OF EQUITY PROCEDURE. 497 of the Supreme Court of the United States, and for other purposes," approved January 24, 1873. This volume will, therefore, enable lawyers all over the country to understand the practice in equity in the Supreme Court of the United States, as well as in the United States Circuit Courts; and thus furnish full practical information in equity cases within Federal jurisdiction. And, though the processes and rules of practice in cases at law in the Federal courts are not strictly germane to the subject of this volume, yet' they are none the less valuable in themselves ; and as there is, as has been shown, a connection between them and those in equity, it is deemed expedient to give them. It is well to indicate, in conclusion, to the student, and, indeed, also to the practitioner, the disciplinary use of each kind of form in framing the machinery of equity procedure. That the forms of bills are useful in enabling the practitioner to draw bills, as well as to the student in learning their structure, is obvious enough. And that the forms of decrees are also useful, as patterns for drawing decrees, is obvious enough. And so of petitions and orders and all other formal acts in equity procedure. They all serve as patterns for drawing similar forms. But that one form in equity procedure is useful in showing how to frame another entirely different in its special function, is not so obvious ; but yet it is so, and needs to be shown.. The forms of decrees, for example, are very useful as a help in framing bills. Because the prayer of the bill is the part upon which the frame of the bill principally depends. The form of the decree sought, is, therefore, the best guide for framing the prayer which asks for the decree and foreshadows it. The decree contains the law of the case, and is the mold in whicJi the 33 498 THE FORMS OF EQUITY PROCEDURE. prayer must be cast. The study of the forms of de- crees in various cases is, therefore, a useful discipline for enabling one 'to frame bills as well as decrees. And as all the forms in equity procedure have logical as well as practical relations to one another, and are founded on the same principles, the study of all aids in framing each one the more in accordance with the fundamental principles which underlie the whole scheme of equity procedure. The forms given hereafter are not mere skeletons, but contain a full statement of all the facts, set forth in the cases in which they originated in practice. In this way causes of suit and defenses in equity are exhibited with special definiteness, by the forms ; and also the nature and mode of relief appropriate to each cause ol suit. Thus a practical insight is given into equity pro- cedure as an administrative instrument, and not as a scheme of mere technical forms. The common law, including equity, which our ances- tors brought to this country, and upon which Ameri- can jurisprudence is founded, was that which had been established by judicial precedents at the time of their emigration, and not that which has since been ex- panded in England by judicial decisions. We must, therefore, recur to' that earlier period of the law in order to present American jurisprudence as a regularly expanded system of logically coherent principles, with- out any anomalies of alien doctrine interpolated by what claims to be modern reform. The great, treatise of Mitford belongs to that earlier period of the law ; therefore, in order to show its full import and its theo- retical and practical value in the administration of equity in American courts, we must exhibit equity pro- cedure as it existed at the time it was written, and of THE FORMS OF EQUITY PROCEDURE, 499 which it is so masterly an exponent. For it matters not what changes may be wrought in equity proced- ure this treatise will be a perennial guide to the bench and the bar through all time ; and more especially if the common law shall be merged into an amalgama- tion with equity. Because the . principles of equity procedure are rational principles, coincident with the laws of thought, and must lie of necessity at the foun- dation of every possible scheme of equity procedure ; and the more ignorantly and unsystematically any pre- tended reform of it is executed, the more need there will be of a scientific guide in the administration of equity, like the treatise of Mitford, supplemented, as it is, in the present volume. For the foregoing reasons the English forms of the subpoena, and of the other writs, which are given in the following examples, are presented as the best prece- dents for both the student and the practitioner, who will find only modifications of them in our different courts of equity ; and each practitioner can easily learn the special modifications in the courts of their respec- tive States. As we proceed, occasional remarks of a general character will be interspersed among the forms, showing some of the modifications they have under- gone in American proceedure. And from these, the general tendency and aim of those modifications can be understood. The writ of subpcena, which every bill in equity prays against the defendant, is in the following form : 500 THE FORMS OF EQUITY PROCEDURE. FORM OF SUBPCENA. George the Third, by the grace of God, of Great Brit- ain, France, and Ireland King, Defender of the Faith, and so forth, to A. B. and E. R., greeting: For certain causes offered before us in chancery, we command and strictly enjoin you, that laying all other matters aside, and notwithstanding any other excuse, you personally appear before us, in our said chancery, the day of instant (or next ensu- ing), wheresoever it shall then be, to answer concerning those things which shall be then and there objected to you, and to do further, and receive what our said court shall have considered in this behalf; and this you may .no wise omit under penalty of one hundred pounds; and have there this writ. Witness ourself at Westminster, the — ■— day of — — , in the year of our reign. [Signed by the Chancellor.\ As the writ does not name the complainant, it is indorsed, — " By the court : to answer at the suit of F. T." By the American practice of the present day, the name of the complainant is inserted in the writ, thus, " to answer the complaint of F. T. against you in said court exhibited." In a State court, the subpoena or other writ begins, " State of , to, &c." In a United States court, it begins, " The President of the United States to, &c." The form of a subpoena in the original jurisdiction of the Supreme Court of the United States is to be found in the Appendix to this volume. The first of the compulsory processes which can be had against the defendant in case he does not obey the subpoena, is the writ of attachment, which is in nature THE FORMS OF EQUITY PROCEDURE. 501 of a capias at common law. It is directed to the sheriff in the State courts of equity, and to the marshal in the Federal courts, commanding him to attach or take up the person of the defendant and bring him into court FORM OF ATTACHMENT.* George the Third, &c., to the Sheriff of , greet- ing : We command you to attach A. B., so as to have him before us in our Court of Chancery, wheresoever the said court shall then be, there to answer to us, as well touching a contempt which he, as is alleged, hath committed against us, as also such other matters as shall then be laid to his charge ; and further to abide such order as our said court shall make in this behalf; and hereof fail not, and bring this writ with you. Witness ourself at Westminster, the day of , in the year of our reign. Indorsed, " By the court, at the suit of F. T. for want of appearance," or answer. By the American practice, the name of the com- plainant is mentioned in the body of the writ, thus — "to answer as well touching a certain contempt by him committed in not appearing to, or not answering, the said bill of complaint of F. T., &c," Upon this writ, the sheriff returns either cepi corpus, or nan est inventus. If the defendant is taken, he is detained in custody until he enters his appearance, and * The general mode of compelling obedience to the orders of the court is by attachment. (2 Hogan, 20.) It always rests in the sound discretion of the court, whether the rule for an attachment shall be absolute or nisi ; though the latter is the usual and safer course. (4 Johns. Ch. 58.) 502 THE FORMS OF EQUITY PROCEDURE. puts in an answer to the plaintiff's bill ; or, on his re- fusal, a habeas corpus is awarded, commanding the sheriff" to bring him into court, or a messenger of the court is dispatched for that purpose. If the sheriff return non est inventus, an additional process is awarded against the defendant, an attachment with proclamation, which, besides the ordinary form of attachment, directs the sheriff to cause public proclama- tion to be made throughout the country, to summon the defendant on his allegiance personally to appear and answer the charges brought against him. ATTACHMENT WITH PROCLAMATION. George the Third, by the grace of God, of Great Britain, France and Ireland King, Defender of the Faith, and so forth, to the Sheriff^ of , greeting : We command you, on our behalf, to Cause public proclamation to be made in all places within your bailiwick, as well within liberties as without, whereso- ever you shall think it most convenient, that A. B. do, upon his allegiance, on the day of , person- ally appear before us, in our Court of Chancery, where- soever it shall then be ; and nevertheless, in the mean time, if you can find the said A. B., attach him, so as to have him before us, in our said court, at the time before mentioned, there to answer to us, as well touch- ing a contempt, &c. (as in the single attachment). If this writ also be returned non est inventus, and the defendant still remain in contempt, a commission of rebellion is awarded against him for not obeying the king's proclamation according to his allegiance. This commission is generally directed to four commission- THE FORMS OF EQUITY PROCEDURE. 503 ers, therein named, who are jointly and severally com- manded to attach the defendant wherever he may be found within the kingdom. This process being against the defendant as a rebel, and to be dealt with as such was considered too great a power to be executed by the officers of the court, and therefore was intrusted to commissioners answerable for their conduct to the court. COMMISSION OF REBELLION. George the Third, by the grace of God, of Great Britain, France and Ireland King, Defender of the Faith, 6fc., to H. £., L. D., E. F. and G. H.^ greeting : Whereas, by public proclamations made on our behalf, by the sheriff of Middlesex, in divers places of that county, by virtue of our writ to him directed, A. B. hath been commanded, upon his allegiance, to ap- pear before us in our Court of Chancery at a certain day now past ; yet he hath manifestly contemned our said command ; wherefore we command you, jointly and severally, to attach, or cause the said A. B. to be at- tached, wheresoever he shall be found within our king- dom of Great Britain, as a rebel and contemner of our laws, so as to have him, or cause him to be, before us in our said court, on, &c., wheresoever it shall then be, to answer to us, as well touching the said contempt, as also such matters as shall be then and there objected against him, and further to perform and abide such orders as our said court shall make in that behalf And hereof fail not. We also hereby strictly com- mand all and singular, mayors, sheriffs, bailiffs, consta- bles, and other our officers and loyal servants and sub- 504 THE FORMS OF EQUITY PROCEDURE. jects, whomsoever, as well as within liberties as well as without, that ti^ey, by all proper means, diligently aid and assist you, and every one of you, in all things in the execution of these premises. In testimony where- of, we have caused these our letters to be made patent. Witness ourself, at Westminster, the day of , in the thirty-fourth year of our reign. If the commission of rebellion is returned non est inventus, the court, on motion to that effect, will dis- patch a sergeant-at-arms in search of the defendant. The sergeant-at-arms is an officer by patent from the king, whose duty it is to attend upon the lord chan- cellor, and to execute the orders of the court upon those who in any respect contemn its jurisdiction. If the defendant is taken upon any of these pro- cesses, he is committed to prison until he enter his ap- pearance according to the forms of the court, and also , clears his contempt by payment of the costs incurred by his contumacious behavior. If the defendant shall elude the sergeant-at-arms, then upon the return of the sergeant-at-arms, and mo- tion founded upon it, a writ of sequestration, the last and the most efficacious process of a court of equity, will be awarded. This writ is directed, like the commission of rebellion, to certain commissioners therein named, authorizing and commanding them to possess them- selves of all his personal estate whatever, and the rents and profits of his real estates, until satisfaction is made of the complainant's demands, and the court shall further order. SEQUESTRATION. George the Third, &c., to P. B., J. W., R. N., &c. : Whereas F. T., complainant, exhibited his bill of THE FORMS OF EQUITY PROCEDURE. 505 complaint to our court of chancery, against A. B. and E. R, defendants. And whereas the said A. B., beino- duly served with a writ issuing out of our said' court, commanding him, under the penalty therein mentioned^ to appear to and answer the said bill, has refused so to do, and thereupon our process of contempt has issued against him unto a sergeant-at-arms. And whereas the said A. B. has of late absconded and so concealed him- self, that the sergeant-at-arms has not been able to find him, as by the certificate of the said sergeant appears : Know ye, therefore, that we, in consideration of your prudence and fidelity, have given, and by these pres- ents do give to you, any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever, of the said A. B,, and to take, collect, receive, and sequester into your hands not only all the rents and profits of the said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estate whatsoever ; and therefore we command you, any three or two of you, that you do at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estate of the said A. B. ; and that you do collect, take, and get into your hands not only all the rents and profits of all his real estate, but also all his goods, chattels, and personal estate, and keep the same under sequestration in your hands, until the said A. B. shall fully answer the complainant's bill and clear his contempts, and our said court make other order to the contrary. Witness ourself, at Westminster, the day of , in the thirty-third year of our reign. The sequestration is personally served upon the tenants by two of the commissioners, which is consid- 506 THE FORMS OF EQUITY PROCEDURE. ered as a seizing and sequestering under the authority of the writ. An order is then procured for the tenants to attorn to the commissioners, who are amenable to the court for the rents and profits. This order is also personally served. Should the execution of the writ be forcibly obstructed, a writ of assistance may be sued out directed to the sheriiT of the county, commanding him to assist the commissioners in such execution. Such are the successive processes of regular prac- tice in equity by which an individual person, as de- fendant, is brought into court. But as a corporation aggregate is invisible, and cannot be served with personal process to compel an appearance, by statu- tory authority, it is now the practice to serve process on some officer or agent of the corporation, and then a distringas will be awarded against the property of the corporation, directed to the sheriff" of the county or place where the corporation is resident. DISTRINGAS. George the Third, &c., to the Sheriff of the City of London, greeting : We command you to make a distress on the lands and tenements, goods and chattels, of the mayor, com- monalty, and citizens of our said city of London, within your bailiwick, so as neither. the said mayor, commonalty, and citizens, nor any other person or persons for them, may lay his or their hands thereon, until our court of chancery shall make other order to the contrary ; and in the mean time you are to answer to us for the said goods and chattels, and the rents and profits of the said lands, so that the said mayor, com- monalty, and citizens may be compelled to appear THE FORMS OF EQUITY PROCEDURE. 507. before us in our said court of chancery, wheresoever it shall then be, there to answer to us as well touching a contempt, &c. (as in the attachment). Witness, &c. After service of the distringas, if the corporation continue in contempt, there issues an alias and a pluries distringas; and lastly, the sequestration is awarded against their lands, &c., as in other cases. But when the sequestration is once awarded against a cor- poration, it cannot, as it can against a private person, be stayed on entering their appearance. After an order for a sequestration is obtained against a defendant, the complainant's bill is taken pro confesso, and a decree made accordingly ; and the sequestrators proceed, under the control and authority of the court, actually to sequester the estates of the defendant, agreeable to the tenor of the writ, in order to make satisfaction for the injuries complained of in the bill. Since therefore this writ of sequestration never issues till after the plaintiff has obtained a decree on confession, it seems rather intended to enforce the performance of the decree of the court, than to be in the nature of process to bring in the defendant. And by the constitution of courts of equity, it is the only remedy' that a plaintiff has where the defendant persist- ently refuses to appear. Because, unless the defendant comes in and contests the suit, the court has no au- thority to investigate the merits of the case stated in the complainant's bill, nor can there be any proof against an absent person. Therefore the benefit of the sequestration, which answers to the quantum damnijicatus of the common law, is the only satisfac- tion which the complainant can obtain. If, however, the defendant voluntarily, or upon 508 THE FORMS OF EQUITY PROCEDURE. return of either of the processes mentioned, appears to the complainant's bill, he is then, within a definite time, to be fixed by the practice of the court, to give in upon oath the matter he has to offer in his defense. The appearance of the defendant is entered by the register on his court docket, on application of the party or his attorney, and the defendant is then con- sidered in court, and may move generally in the cause. But he may, before appearance, move to set aside any of the processes for irregularity ; and, in strictness, he should do so before appearanfce, because an appearance is considered as a waiver of irregularity. The form of appearance in the Supreme Court of the United States will be seen in the Appendix to this volume. In Maryland, the appearance of the defendant to a suit is by an order in the following form : A. B. V V. >- In the Circuit Court of Baltimore City, CD. ) Term, 1 8—. Mr. Clerk : Enter my appearance in this case for defendant. , Solicitor for defendant. Having just presented the various forms of the dif- ferent writs of mesne process, by which a defendant is brought into a court of equity to answer a bill of com- plaint filed against him by a complainant, the forms of the different kinds of bills of complaint, and of all of the successive steps in a suit in equity, down to and including those of writs of execution of decrees, will THE FORMS OF EQUITY PROCEDURE. 509 now be presented. These forms will be given under the following divisions : 1. Forms of bills in equity. 2. Forms of defenses in equity. 3. Forms of interlocutory and final proceedings. Under the first of these divisions, in a few instances, besides the form of the bill, forms of subsequent steps in the proceeding will be presented, in order that the relations in practice of the successive steps may be more clearly discerned, than by seeing the forms separated from each other under the different divisions of equity procedure. And a like deviation from strict classification of forms is, for the sake of practical ad- vantage, indulged to some extent in the subsequent divisions. FORMS I. FORMS OF BILLS IN EQUITY. Bill by Mortgagee against mortgagor for Sale of mort- gaged Premises. To the Ilonorable , Chancellor of Maryland : The bill of complaint of , of county, humWy shows, that heretofore, to wit, on the day of , in the year , a certain , of said county, being indebted imto your orator in the sum , current money, and intend- ing to secure the payment thereof unto your orator, did, by his deed of that date, convey unto your orator and his heirs certain real estate lying in said county, and particularly described in said deed, to which said deed there is a condition annexed that it be void on payment by said to your orator of the afore- said sum of money, with interest thereon from , on or be- fore the day of in the year , as by a copy of said deed filed herewith as a part of this bill will more f uUy appear. And your orator charges that no part of the aforesaid sum of money, or the interest accruing thereon, has been paid, but the same is still owing to him, although the time limited for the payment thereof by the condition aforesaid has passed, and payment thereof has been duly demanded of the said To the end, therefore, that the said may answer the several matters and things hereinbefore stated, as fully and particularly as if they were herein again repeated, and he was thereunto specially interrogated ; and that the premises afore- said, or so much thereof as may be necessary, may be sold for payment of your orator's claim, with interest as aforesaid ; and that your orator may have such further or other relief as his case may require (SiO 512 FORMS OF BILLS IN EQUITY. May it please your honor to grant unto your orator the writ of subpoena against the said , of county, command- ing him to appear in this court at some certain day to he therein named, and to answer the premises, and abide by and perform such decree as may be passed therein^ Solicitor for complamomt. Note. — If payments have teen made on account, (hey should he admitted in the Mil, either specially, or by referring to some statement or account accom- panying the Mil, as in the following forms : And your orator admits, that the interest which accrued due prior to and on the has been paid to him by the said ; and he also admits the receipt of the further sum of , which was paid to him on the for further in- terest, and in part of the principal debt secured by said mort- gage. But he insists that the residue of said debt, with in- terest accrued thereon since the last mentioned day, is stiU due and owing to him. Or as follows : And your orator admits, that sundry payments have been made to him by the said ' , on account of said mortg^e, as is more particularly admitted in the statement marked Ex- hibit B, and filed as part of this bill ; but by said statement it appears, and so he insists, there is yet due to him on said mort- gage a balance of besides interest thereon from the day of Note. — A defendant is lound, upon a general interrogatory or prayer, to answer all the material a/eerments in the Mil fully and . explicitly. In cases, therefore, where it is expected that there will he no controversy about the facta, special interrogatories are not usually inserted. Where, however, the case in- volves many circumstances which rest in the' knowledge of a suspected defendant, or where, from any cause, a full and minute discovery is desired from him, the interrogatories should be drawn asparticular and searching as possible. FORMS OF BILLS IN EQUITY. 513 Bill by €reditor§ against The Administrator and Heirs at L,aw of a Deceased Debtor for an Account of Per- sonal and a §ale of Real Estate. The bill of complaint of A., B. and 0., of county, who sue as well for themselves as all other creditors of D., late of said county, deceased, who wiU come in and contribute to the expenses of this suit, humbly shows, that a certain D., late of county, deceased, was in his lifetime indebted unto your orator A. in the sum of , current money, on his certain bond or obligation, dated on or about the day of , in the year , and conditioned for the payment to your orator, of the sum of , with interest thereon, from the date thereof, on or before a day long since passed ; and unto your orator B., as executor of the last will and testament of one E., late of county, deceased, in the sum of , on a certain promissory note to the said E., in his lifetime, dated on the day of , and payable ninety days after the date- thereof ; and unto one F., of county (who has lately de- parted this life intestate, and upon whose personal estate your orator C. has lately administered), in the sum of , for sundry matters and things properly chargeable in account. As by your orators' Exhibits A, B, 0, D and E, filed as part of this bill, will more fully appear. [These exhibits should be the bond and promissory note, or copies of them, a copy of the open account, and certificates of the grant of letters testamentary and of administration to two of the complainants.] And your orators further charge that the said D. being in- debted as aforesaid unto your orators, and also unto divers other persons in large sums of money, and having real and personal property of great value, departed this life in the year intestate, and leaving G-., who was late intermarried with one fl., of county, I., K., L. and M., his children and heirs at law, of whom the said L. and M. are infants under the age of twenty-one years. And that, after the death of the said D., the said I. departed this life intestate, leaving a widow, N., and an only child, O., who resides in the State of Tennessee, and upon whom has devolved all his interest in the real estate of the said D. And your orators further charge that administration of all and singular the personal estate of the said D. hath been lately granted by the Orphans' Court of county unto one P.,, of said county, who, in virtue thereof, has possessed himself of the said personal estate of great value ; but your orators^ are in- formed and believe that 3ie same is not sufficient, to discharge 33 514 FORMS OF BILLS IN EQUITY. all his debts due or owing by the said intestate at the time of his death. And your orators are advised that the said personal estate in the hands of the said P. ought to be applied to the payment of the claims of your orators, and of other creditors of the said D., so far forth as the same will extend; and that any deficiency in the said personal estate ought to be supplied by a sale of the real estate of their aforesaid debtor. But the said P. has wholly refused to pay any part of the aforesaid claims, or to render unto them any account of the aforesaid personal estate in his hands ; and your orators are un- able to obtain adequate relief against him, or against the afore- said real estate, without the aid of this court. To the end, therefore, that the defendants hereinafter named may answer the several matters and things hereinbefore set forth, as fully and particularly as if the same were herein again re- peated, and they were thereunto interrogated; and that the said P. may also set fortL an account of the personal estate of his intestate, and the amount and particulars thereof, possessed by him, and what thereof is now in his hands, and how much thereof has been disposed of by him in payment of his intestate's debts or otherwise, and what debts, and to what amount, remain unsatisfied ; and that the other defendants, heirs at law of the said D., may discover all and singular the real estates of which the said D. was seized or entitled to at the time of his death, and where the same and every part thereof is or are situate ; that an account may be taken, under the direction of this court, of the said debts so as aforesaid due to your orators, and of all other debts which were owing by the said intestate at the time of his death, and which still remain unpaid ; and also of the personal estate and effects of the said intestate received or for the use of the said P. as administrator aforesaid ; and that the said personal estate may be applied, in due course of admin- istration, in payment of the debts of the intestate due to your orators, and all other creditors who may come in and contribute to the expenses of this suit ; and that the aforesaid real estate, or so much thereof as may be necessary for the purpose, may be decreed to be sold for the payment of so much of the aforesaid debts as may remain unsatisfied by the application of the per- sonal estate as aforesaid ; and that your orators may have such further or other relief as their case may require ; May it please your honor to grant unto your orators an order of publication giving notice to the said N. and 0.', and also the writ of subpoena against the said P., H., and G., his wife, K., L. and M., of county, commanding them, &c. FORMS OF BILLS IN EQUITY. 515 Bill for Redemption of Mortg^ag^ed premises toy Heir at L,aw of Alort^agror against Mortgagee who had en- tered into possession. The bm of eomplaint of A., of county, humbly shows : ihat heretofore, to wit, on the day of in the year , a certain B., late of said county, but since de- ceased, bemg m his lifetime indebted unto a certain C, of said county, in the sum of current money, and intending to secure the payment thereof unto the said "C, did, by his deed of that date, convey unto the said 0. certain real estate, lying in _ _ county, and particularly described in said deed ; to which said deed there is a condition annexed, that it be void on payment by the said B., his heirs, executors or administrators, unto the said C, of the aforesaid sum of money, with interest thereon from the , on or before the day of , in the year ; as by a copy of said deed, filed as a part of this bill, wiU more fidly appear. And your orator charges that, shortly after the execution of the said mortgage, C. entered into possession of the aforesaid premises, and the receipt of the rents and profits thereof, and still retains the same. That the said B. has lately departed this life intestate, whereby his equity of redemption of the aforesaid premises has descended to and vested in your orator, who is his only child and heir at law. And your orator has applied to the said 0. to permit him to redeem the aforesaid premises, and to enable your orator so to do, to account with your .orator for the rents and profits of the said premises received by him, during the time he has been in possession thereof as aforesaid, which reasonable requests your orator hoped the said C. would have complied with. But now so it is, the said C. pretends that the aforesaid B., in his lifetime, released unto him his equity of redemption in said premises, so that no right or equity to redeem the same exists or ever existed in your orator ; and, at other times, the said C. pretends that the rents and profits received by him as aforesaid, amount to a very small sum of money, and have been expended in necessary and reasonable repairs and improvements on the premises ; and that the principal of the aforesaid debtg secured by said mortgage, with the whole arrear of interest from the date thereof, is still due and owing to him, and by these and like frivolous pretenses, he delays and intends to prevent a redemption of the premises by your orator. Whereas your orator insists, that all the pretenses advanced by the said C. are wholly unfounded, and that the said C, by taking the rents and profits of said premises as aforesaid, had satisfied unto himseK the whole of the interest accruing on said mortgage. 5l6 FORMS OF BILLS IN EQUITY. together with a considerable part of the principal debt secured thereby ; so that there remains due thereon a very small sum of money, which your orator wiU be ready to pay unto the said 0. as soon as the precise amount thereof can be ascertained. To the end therefore that the said 0. may answer the sev- eral matters and things herein stated as fully and particularly as if they were here agam repeated and he was thereunto specially interrogated, and may also render a full and particular account of the rents, issues and profits of the aforesaid premises received by him, or by any other person or persons for his use,/or by his authority and direction, since he has been in possession thereof as aforesaid, with the several an4 respective times when, and persons from whom, and the purposes on account of which the same were received ; and may discover at what yearly rent or rents the said mortgaged premises, and every part thereof, have or might have let during the term aforesaid ; and to whom the same, and every or any part thereof, has in fact been rented duriQg the said term ; and if the same has not been rented, then that he may discover by whom, and in what manner the same has been used or cultivated. And that an account may be taken under direction of this court, of what is now due and owing from your orator to the said C. for principal money and interest, on security of the said premises, after allowing to your orator for the rents and profits thereof received by the said 0. or any person or persons on his behalf, or which without his willful neglect and default might have been received by him since he entered into possession thereof as aforesaid ; and that upon pay- ment by your orator, of what, if anything, shall be found re- maining due to the said C. on said account, the said 0. may be decreed to surrender and deliver up the possession of the said mortgaged premises to your orator ; and that your orator may have such further or other relief as his case may require: May it please, &c. [praying for a subpo&na as in the ^reaeding bills]. Foreclosure of a Mortgage. A bill for strict foreclosure prays that an account may be taken of what is due to the complainant on his mortgage, and that the mortgagor may be decreed to pay the amount found due, by a short day, to be appointed by the court ; or in default thereof, that the mortgagor and aU persons claiming under Mm, may be debarred and foreclosed of and from all rights and equity of redemption, in or to the mortgaged premises, &c. The decree directs a reference to a master to take an account of the principal and interest due on the mortgage and to tax the mortgagee's costs, and directs that if the same are paid by the FORMS OF BILLS IN EQUITY. 517 mortgagor at sucli time and place as the master shall fix, the mortgagee is to reconvey the premises ; but orders, in default of payment at such time and place, that the mortgagor is to be absolutely foreclosed from all equity of redemption in the mort- gaged premises. Decree for Strict Foreclo§ure. [Title of cause.] At, &c. This cause coming on this day to be heard, upon the plead- ings filed and the proofs taken therein, and , of counsel for the complainant, and , of counsel for the defendant, having been heard, it is ordered, adjudged and decreed, and this court by virtue of the power and authority therein vested doth order, adjudge and decree that it be referred to one of the mas- ters of this court residing in the county of , to compute and ascertain what is due to the complainant for principal and interest upon the bond and mortgage mentioned in the bill in this cause. And it is further ordered that the said master tax the costs of the complainant in this cause, and add the amount thereof to the sum which shall be found due to the said com- plainant from the said defendant. [If the mortgagee is, or has been at any time, in possession, add — and that the said master take an account of the rents and profits of the mortgaged prem- ises received by the said complainant or by any person or per- sons by his order, or for his use, and deduct what shall appear to be due on account of such rents and profits from the sum which shall be found due to the said complainant for principal and interest upon the said bond and mortgage.] And it is fur- ther ordered that upon the defendant's paying imto the said complainant the amount which shall be reported due to him for principal, interest, and costs, as aforesaid, within six months after the said master shall have made his report, and after the same shall have been confirmed, at such time and place as the said master shall appoint, that the said complainant do reconvey the mortgaged premises to the said defendant, by a suitable and proper instrument of conveyance, to be approved of by the said master in case the parties cannot agi-ee upon the form thereof, free and clear of all incumbrances done by him, or by any per- son claiming by, from, or under him ; and that he deliver up all deeds and writings in his custody or power relating thereto, upon oath, to the said defendant, or to whom he shall appoint. And further, that the said complainant cancel and discharge such mortgage of record. But in default of the said defendant's paying unto the said complainant such principal, interest, and costs as aforesaid, by the time limited for that purpose, then it 5l8 FORMS OF BILLS IN EQUITY. is ordered, adjudged and decreed, that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises; which premises are described in the biU of complaint and in the said mortgage, as follows [insert description] . Note. — The master^s report must de filed, and regularly confirmed by orders nisi arid absolute, unless the defendant will consent to confirm it abso- lutely in the first instance. The time appointed lyy the master's report for paying the amount found due In/ him, may he enlarged T>y the eov/rt. Been where no exceptions are taken to the master's report, the court has a discretion to enlarge the time. And in Edwards v. Cunliffe (1 Maddochs,S'%'!), the court went so far, under the circumstances of the case, as to make a fourth order to enlarge the time; saying, however, ^^ It requi/res a strong casetoirir duce the court to make a fourth order. " But in Nanny v. Edwards {i Bus- sell, 124), the court refused a first application hy a mortgagor to enla/rgethe time for paying the mortgage money, because there was no excuse for his iefauU stated lyy the mortgagor. The order enlarging the time is usually upon the terms of paying the interest and costs; as in the form which folhws. Order Enlar^ng^ Time for Payment. [Title of cause.] .At, &c. The report of the master to whom it was referredto com- pute and ascertain the amount due to the complainant in this cause for principal and interest on his bond and mortgage and tax his costs in this suit, having been filed and duly counrmed, from which it appears that there will be due to the said com- plainant, for principal, interest and costs, the sum of $ on the day of instant, which was the time appoiated by the said master for the payment thereof, and on reading affi- davits, and on motion of , solicitor for the defendant, and on hearing , solicitor for the complainant in opposition thereto, it is ordered that upon the said defendant's paying to the complainant, on or before the day of , [the time appointed hy the master], the sum of $ reported due to the complainant for interest and costs on his said mortgage, by the said master's report, the time for the defendant's redeeming the said mortgaged premises be enlarged six months. And upon such payment, it is ordered that it be referred back to the said master to compute the complainant's subsequent interest, and tax his subsequent costs, including the costs of this application, and to appoint a new time and place for payment of what shall be found due to the complainant in respect thereof. But in default of the defendant's paying to the complainant the said sum of $ by the time aforesaid, the defendant is to stand absolutely foreclosed. FORMS OF BILLS IN EQUITY. 519 Bin for a Sale of Mortgaged Premises by Executor of Mortgagee against a Bfon-resident Mortgagor. The -bill of complaint of A., of county, executor of the last will and testament of B., late of said county, deceased humbly shows that heretofore, to wit, on the day ol , in the year , a certain C, then of county hut now residing in the State of {ieijond the jurisdiction of the court), being indebted unto the said B., in his lifetime, in the sum of current money, and intending to secure the payment thereof unto the said ]5., did by his deed of that date, conrey to the said B., and his heirs, certain real estate lying in said comity, which is more particularly described in said deed. To which said deed there is a condition annexed that it be v^oid on payment by the said 0. to the said B., his executors, administrators, or assigns, of the aforesaid sum of money, with interest thereon from the day of , in the year , in one year from the date thereof, as by a copy of said deed, marked "Exhibit A," and filed herewith as part of this bill, will more fully appear. And your orator further charges, that afterwards the said B. departed this life, leaving a last will and testament in writing, whereof he appointed your orator the executor, and that your orator has since duly proved the same, and obtained letters tes- tamentary thereon from the Orj)hans' Court of county, as by * « certificate thereof given iy the register of wills of said county., marked "Exhibit B," and filed herewith as part of this bill, wiU more fully appear. And your orator further charges, that by the death of the said B. without making any disposition thereof, the legal estate in the said mortgaged premises has descended to D., of said county, as only child and heir at law of the said deceased. But your orator is advised that it remains charged with the payment of the aforesaid debt and interest, and that, as the time limited by the said deed of mortgage for the payment thereof has elapsed, and no part of the aforesaid principal debt or interest accrued thereon has been paid, your orator is entitled to have the said mortgkged premises sold for the payment of his afore- said demand. To the end therefore that the said defendants hereafter named may answer the several matters and things hereinbefore stated as fully and particularly as if they were herein again re- peated, and said defendants were thereto specially interrogated, and that the said mortgaged premises, or so much thereof as * Proof of letters different in different States. 520 FORMS OF BILLS IN EQUITY. may be necessary for the purpose, may be sold for payment to your orator as executor aforesaid of his aforesaid claim, with interest as aforesaid ; and that your orator may have such further and other relief as his case may require : May it please your honor to grant unto your orator an order of publication, giving notice to the said C, who is a non-resident as before stated, of the substance and object of this bill, and warning him to appear in this court in person, or by solicitor, on or before a certain day, to answer the premises, and show cause, if any he has, why a decree ought not to pass as prayed ; and also a writ of subpcena against the said D., of county, commanding him to appear in this court, at some certain day therein named, to answer the premises, and abide by and per- form such decree as may be passed therein, &c. ~ } SdlAGitorfor complainant. Order of Publication founded upon tlie foregoing Form. A. \ Y. V In Equity, 8th September, 1860. C.andD. j ^ ■^' i' ' The object of this suit is to procure a decree for a sale of certain mortgaged premises in county, which were on the mortgaged by the defendant C. to one B., since de- ceased, of whom complainant is the executor. The bill states that on or about the day of , the said C. conveyed certain real estate, which is particularly de- scribed in the biU and its accompanying exhibit, unto the said B., in his lifetime, by way of mortgage to secure the payment of the sum of , with interest from the day of , which was then due and owing from the said 0. to the said B., in one year from the date thereof. That the said B. has lately died, leaving a last wiU and testament, of which he appointed the complainant executor, who has proved the same, and obtained letters testamentary thereon. That the legal estate in said mortgaged premises which descended to the de- fendant D., as the heir at law of the deceased mortgagee, is nevertheless charged with and liable to be sold for the payment of the above said debt and interest, and that the said C. resides out of the said State of' It is thereupon adjudged and ordered, that the complainant, by causing a copy of this order to be inserted in some newspaper published at , once in each of three suooessive weeks, be- FORMS OF BILLS IN EQUITY. 52 1 fore the day of , give notice to the said absent de- fendant of the object and substance of this bill, and warn him to appear in this court in person or by solicitor, on or before the day of , next, to answer the premises and show cause, if any he has, why a decree ought not to pass as prayed. Note. — Where a mortgage ealls for promissory n-otes as evidence of the debt, they should be filed with the bill. Bill by mortgagee, as Security in a Bfote against Mort- gagor, for Sale of the Mortgaged Premises, %vhere the IVote described in the Mortgage had been paid by the Mortgagor with Money borrowed from a Third Person on a IVote iu which the Mortgagee was Se- curity. To the Honorable the Judge of the Circuit Court for FredericJe county, sitting in equity : The bill of complaint of John Carlin, of Frederick county, humbly shows, that heretofore, to wit, on the tenth day of August, eighteen hundred and sixty, Isaac Simmons, the de- fendant in tliis case, was indebted to James Whitehill in the sum of $1,000, on his promissory note dated the said tenth day of August, eighteen hundred and sixty ; and John Carlin, your orator, was liable as security on said note, he *having signed it as surety. That said Isaac Simmons, in order " to indemnify, secure, and save harmless said John Carlin, your orator, , from all loss by reason of his liability as security as aforesaid," did, by his deed dated the fourth day of September, 1860, con- vey to your orator, John Carlin and his heirs, certain real estate lying in said county, and particularly described in said deed, to which said deed there is a condition annexed, that the said Isaac Simmons should pay the aforesaid sum of money, with legal interest thereon, and should " well and truly indemnify and save harmless the said Carlin (your orator) from all and every loss by reason of his liability as security, as hereinbefore re- cited," which deed was duly executed and recorded, as by a copy of said deed herewith filed as a part of this bill of complaint win more fully appear. And your orator charges that no part of the aforesaid sum of money was paid by the said Simmons, and that after its maturity the said note was placed in the hands of one George Hanson, as an attorney, for collection. Thereupon the said Hanson agreed that if the said Simmons would pay half of the said sum of money due on the said note, and would procure an 522 FORMS OF BILLS IN EQUITY. additional security, he (Hanson) would discount a note for Mm to pay the balance. Whereupon John, Carlin, your orator, to- gether with one Ezra Benty, united with said Isaac Simmons in giving their joint and several note, dated the tenth day of August, 1862, for $560, payable in six months, to the said George Hanson or order, and the money raised on said note, together with the $560 paid by said Simmons, was applied to the payment of the note dae the said James WhitehiU. At the time your orator put his name as surety on said note given to the said George Hanson, it was understood by him and the said Simmons that the money raised on said note was to be applied to the payment of the balance due on the note to the said Whitehill ; and this last note to the said Hanson is still unpaid and owing to the said Hanson, and has been long overdue. To the end therefore thdt the said Simmons may answer the several matters and things hereinbefore stated, as fuUy and par- ticularly as if they were herein again repeated, and he was thereto specially interrogated, and that the premises aforesaid, or so much thereof as may be necessary, may be sold for the payment of the said note, with interest as aforesaid, to the said George Hanson ; and that your orator may have such other and further relief as his case may require : > [Prayer for subjxjena.} S. T., Solioitor for complainant. Note. — The above "bill is based upon a decision of the Court of Appeals of Maryland (13 M''d R. 78), which makes an important distinction between a mortgage given to the security and one given to the lender of the money. Tlie case was taJcen up and argued by the present writer, the distinction between such mortgages being clear. Sill against llie Executor and Owners of tlie Steal Estate of the ]>ece«lent, after a Final Aceount in the Or- phans' Court for Honey advanced to pay Debt§ and legacies. To the Honorable William George Krebs, Judge of the Circuit Court for Baltimore City: The bill of complaint of Frederick R. Anspach and Susan M. Anspach, his wife, of Baltimore city, humbly shows, that a cer- tain George Gale, late of Anne Arundel county, being possessed of a large real and personal estate lying and being in said county, did, on the sixteenth day of July, in the year eighteen hundred and fifty-six, make and execute his last will and testa- ment in due form of law, and constituted and appointed Thomas FORMS OF BILLS IN EQUITY. 523 I. Eichardson and Jolin Thomas, of the county aforesaid, exec- utors of his said will, and, without revoking said will, departed this life. That your oratrix was the wife of the said George Gale at the time of his death ; and that, by his last wiU and testament aforesaid, after directing his debts to be paid and be- queathing _ certain legacies, he devised and bequeathed the res- idue of his estate, real and personal, to his then wife, your oratrix. All of which will more fully appear by a copy of said last will and testament herewith filed, marked " A," as a part of this bill of complaint. That letters testamentary have been granted on said will to the said Thomas I. Eichardson by the Orphans' Court of Anne Arundel county. That, after the death of the said George Gale, your oratrix, the then widow of said George Gale, gave birth to a daughter, the child of the said George Gale and your oratrix, and named said child Georgetta M. Gale. That, in order to make provision for said child, your oratrix did, on the seventeenth day of Feb- ruary, in the year eighteen hundred and fifty-seven, convey by deed to her father, Augustus Mathiot, two undivided third parts of the real and personal estate of the said George Gale, after the payment of his debts and the legacies given in his will, in trust for the said Georgetta M. Gale; and the said Augustus Mathiot accepted the trust. All of which vt'ill more fully appear by a copy of said deed of trust herewith filed, marked " B," as a part of this bill of complaint. That, after the execution of said deed of trust, your oratrix intermarried with your orator, and is now his wife. Your orator and oratrix further show, that the estate of the said George Gale consisted of two farms lying on or near West Eiver, in Anne Arundel county, one of them commonly called Galesville farm, containingtwo hundred acres more or less ; the other commonly called Westbury, containing eight hundred acres more or less, and the negroes and stock necessary for farm- ing the said two farms. That the said George Gale died largely in debt ; and that his debts, and the legacies under his will, could not be paid by his executor without selling the negroes and the stock, and thereby leaving the estate unproductive for want of the means of farming the land. That, upon the inter- marriage of your orator and oratrix, the debts of the said George Gale, and the legacies under his will, were still unpaid. Tour orator and oratrix, therefore, upon consultation, your oratrix being, the natural guardian of the said Georgetta M, Gale, and acting on behalf of the said infant as well as for her- self, agreed with your orator that he should make some arrange- ment with the executor of the said George Gale, by which the executor could settle his account with the Orphans Court ot 524 FORMS OF BILLS IN EQUITY, Anne Arundel county, witliout selling the personal property of the said George Gale. That thereupon your orator did make such an arrangement with the said executor Thomas I. Eichardson ; and that your orator, by reason of said agreement with your oratrix, and said arrangement with the said executor consequent thereon, has paid out of his own funds large sums of money in liquidation of the just debts of the said George Gale, and the proper legacies bequeathed by his last will and testament. And your orator, because of the aforesaid agree- ment and arrangement, is liable for the payment, out of his own funds, of other debts of the said George Gale left unpaid by the said Thomas I. Eichardson as executor, as aforesaid. That the said Thomas I. Eichardson, by reason of the arrangement with your orator, and the assumption of the debts and legacies afore- said by your orator, closed his final account with the Orphans' Court of Anne Arundel county ; as will appear by a copy of said final account, marked " 0," herewith filed as a part of this bill of complaint. That your orator, to his great surprise, is now advised, and so believes and alleges, that because of the settlement of his final account by the said executor in the Orphans' Court of Anne Arundel county, as aforesaid ; and because of the deed of trust made, as aforesaid, by your oratrix, although the deed conveys only after the payment of the debts of the said George Gale, and the legacies given in his wiU, he has no remedy at law for reimbursing or securing himself out of the property of the said George Gale for the money he has paid, or may here- after pay, in liquidation of the debts and legacies which he as- sumed to pay, as hereinbefore stated. And your orator and oratrix further show, that until all the debts of the said George Gale and the legacies under his will are paid, it cannot be ascer- tained what property it is, or its amount, of which two undi- vided thirds have been conveyed by tlie aforesaid deed of trust to the said Georgetta M, G-ale, as such two-thirds are of the property remaining after the payment of the debts and legacies aforesaid. And your orator and oratrix further show, that it will be for the benefit and advantage of all interested in the said estate left by the said George Gale, deceased, and partially conveyed in trust as hereinbefore stated, that the farm called Galesvihe be sold to reimburse your orator in the sums of money which he has paid as hereinbefore stated, and to pay the debts and legacies which may be still unpaid, because the negroes and stock, which are the only personal property which could be ap- plied to that purpose, are not more than sufficient for the culti- vation of the other farm, called Westbury, FORMS OF BILLS IN EQUITY. 525 To the end, therefore, that the defendants hereinafter named may answer the several matters and things hereinbefore set forth, as fully and particularly as if the same were herein again repeated, and they were thereunto interrogated ; and that an accoimt may be t^ken, under the direction of this court, of the debts and legacies due from the estate of the said George Gale, deceased, which have been paid by your orator, the said Frederick E.. Anspach, and of all other debts which were owing by the said testator at the time of his death, and which remain unpaid ; and also of the personal property of the said testator which was left after the settlement of the final account of the executor, the said Thomas I. Eichardson, and now remains in whosesoever possession ; and that either the personal property, or so much of the real property as may be necessary for the pur- pose, whichever may, in the authority and discretion of the court, be most beneficial, advantageous and equitable to all con- cerned, be sold for the payment of the amoimt paid by your orator, as aforesaid, on account of the debts and legacies due from the estate of the said George Gale, and also for the pay- ment of any debts which were due from the said testator at the time of his death, and are stiU unpaid, whether due to your orator or oratrix, or to any other creditors who may come in and contribute to the expenses of this suit ; and that your orator and oratrix may have such other and further relief as their case may require : May it please your honor to grant unto your orator and oratrix the writ of subpoena against the said Thomas I. Richard- son, of Anne Arundel county, executor of the last wiU and testament of George Gale, deceased, and Augustus Mathiot and Georgetta M. Gale, of Baltimore City, commanding them, and each of them, to appear in this court, at some certain day to be therein named, to answer the premises, and abide by and per- form such decree as may be passed therein, and as in duty, &c. S. T., Solicitor for complainant. Note. — The interlocutory avd fhe final decrees upon this Ull are given immiediately after this form. 526 FORMS OF BILLS IN EQUITY. Interlocutory Decree. r, E. Anspach and Wife .,-,«. In the Cwcuit Cowtfw vs. ) Baltmiore City, \ March Term, 1861. Thomas I. Eichaedson aot) Othbbs.| This cause standing ready for further proceedings, and being submitted, and the proceedings read and considered : It is thereupon, this fourteenth day of March, in the year eighteen hundred and sixty-one, by "William George Krebs, Judge of the Circuit Court for Baltimore city, and by the au- thority of said court, adjudged, ordered, and decreed, that an account be taken of and concerning the matters in the proceed- ings mentioned ; and that this cause be referred to E. "Wyatt Blanchard as special auditor, and the same is hereby referred, with directions to take an account of the debts and legacies due from the estate of the said George Gale, mentioned in the pro- ceedings, which have been paid by Frederick E. Anspach, a complainant in the cause ; also of aU other debts which were owing by the said George Gale at the time of his death, and which remain unpaid ; also of any legacies under the will of the said George Gale which remain unpaid ; and also of the personal property of the said George Gale which remained after the final account settled by Thomas I. Eichardson, the executor ; and also to inquire whether it will be for the benefit and ad- vantage of all persons concerned in the property, that the real estate prayed in the bill to be sold, should be sold to p^y any debts and legacies which may be found to be due from the estate of the said George Gale, instead of selling any personal property for that purpose. And that such account be taken from the pleadings and proofs now in the cause, and such other proofs as the parties may produce before him on giving the usual notice ; and that the complainant, by advertisement to be inserted in some newspaper printed in the city of Baltimore, and in some newspaper printed in the city of Annapolis, once a week for four successive weeks before the 20th day of April next, give notice to the creditors of George Gale, deceased, to file their claims with the derk of this court, on or before the 20th day of May next. WM. GEO. KEEBS. FORMS OF BILLS IN EQUITY. 527 rinal Decree. F. E. Ajstspach and "Wife In the Circuit Court of '^*' > Baltimore City, A. Mathiot AND Othees. \ ^'^y Term,\?>^l. This cause standing ready for hearing, and being submitted, the counsel for the parties were heard, and the proceedings read and considered. It is thereupon, this twentieth day of June, in the year eighteen hundred and sixty-one, by William George Krebs, Judge of the Circuit Court for Baltimore City, and by the au- thority of said court, adjudged, ordered, and decreed, that there is due from the estate of George Gale, late of Anne Arundel county, deceased, unto the complainant, Frederick E. Anspach, the sum of three thousand and ninety-three dollars and sixty- eight cents ; and unto the complainant Susan M. Anspach the sum of one thousand and seventy-two dollars and sixty-one cents. And it is further adjudged, ordered, and decreed, that the part of the real estate of the said George Gale, deceased, in the proceedings mentioned, called Galesville, or so much thereof as may be necessary for the purpose, be sold for the payment of the aforesaid sums of money due, as hereinbefore decreed, to the complainants respectively, and of other debts which may be found to be due said estate of George Gale, deceased. That "WiUiam F. Hause, of Anne Arundel county, be, and he is hereby appointed trustee to make such sale ; and that the course of his proceedings shall be as f ollowSv : He shall first file with the clerk of this court, a bond to the State of Maryland, executed by himself and two sureties, to be approved by the clerk of this court in the penalty of fifteen hundred dollars, con- ditioned for the faithful performance of the trust reposed in him by this decree, or which may be reposed in him by any further order or decree in the premises. He shall then proceed to make sale of the said land and premises called Galesville, having first given at least three weeks previous notice in some newspaper, printed and published at Annapolis, and such other notice as he may think proper, of the time, place, man- ner and terms of sale, which terms shall be as follows ; The purchase money to be paid in three equal installments, the first to be paid on the ratification of the sale, and the second and 528 FORMS OF BILLS IN EQUITY. third in one and two years from the day of sale, both bearing interest from the day of sale, and to be secured by the bonds of the purchaser, with a surety or sureties to be approved by the trustee. And as soon as may be convenient after such sale, the said trustee shall return to this court a full and particular account of the same, with an affidavit of the truth thereof and of the fairness of such sale annexed. And on the ratification of such sale by the court, and on the payment of the whole purchase money, and not before, the said trustee, by a good and sufficient deed, to be executed and acknowledged according to law, shall convey to the purchaser of said property, and to his or her heirs, the property to him or her sold, free, clear and discharged of all claim of the parties to this cause, and of any person or persons claiming by, from, or under them. And the said trustee shall bring into this court, after de- ducting therefrom the costs of this suit, and such commission to the said trustee as this court shall think proper to allow in con- sideration of the skill, attention and fidelity wherewith he shall appear to have discharged his trust. Provided, however, that this decree, so far as the execution thereof may be stayed by the act of the General Assembly of Maryland, passed at its special session in the year 1861, creating a stay upon judgments and decrees, shall not be executed until the stay created by said act shall cease to operate. WM. GEO. KEEBS. Bill for Partition between Joint Tenants or Tenants in Common. To the Honorable , Judge of the Circuit for The bill of complaint of A., of county, humbly shows, that he is seized in fee of one undivided moiety of a tract or parcel of land, lying in said county, called , containing acres of land more or less, and that the other undivided moiety of said land is held by one B., of county. And your orator charges that he is desirous of having a par- tition of said land made between the parties, according to their aforesaid interests, and has applied to the said B. for that pur- pose. But his reasonable- applications in this behalf have been rejected by the said B., and your orator is advised that he has no redress except by an appeal to this court. To the end, therefore, that the said B. may answer the prem- ises, and that a decree may be passed by this court for a parti- tion of said land between the said B. and your orator, according FORMS OF BILLS IN EQUITY. 529 to their respective interests, as before stated, and may have such further or other relief as his case may require : May it please your honor to grant, &c. \as in first form of mi.] Note. — Where all the joint tenants or tenants in common are of full age, and one or nwre refuse to agree to a partition, the other or others are entitled to a partition, though it be shown to be ruinous to all parties. The court has no discretion, but must decree a partition. But wJiere any of the joint tenants or tenants in common are infants under the age of twenty -one years, it must be shown that partition will be for the benefit and advantage of all the part owners. Bill for Partition betireen Parceners. To the Son. , Judge of the Circuit Court of County : The hill of complaint of A. and B. his wife, C. and D. of county, humbly shows, that heretofore a certain M., late of county, deceased, was in his lifetime seized and possessed of certain real estate lying and being in said county ; and being so thereof seized and possessed, some time in the year departed this Hf e intestate, leaving your orators B., C. and D., and the defendants E. and F,, his only children and heirs at law. And, that the said E. and F. are infants under the age of twenty-one years. And your orators further charge that the said real estate is not susceptible of partition amongst the parties aforesaid, and that if it cannot be divided between them with advantage to all the parties, then that your orators will be entitled to have the same sold, and the proceeds of sale distributed amongst the par- ties, in proportion to their respective interests. The said real estate is described in a deed, a copy of which is filed as a part of this bill of complaint, marked " Exhibit A ; " the original of which deed is recorded in Liber J. T., foHos 24Y, 248, one of the Land Records of the county last aforesaid. To the end, therefore, that the said E. and F. may answer the premises, and that a decree may be passed for the partition of the aforesaid real estate amongst the parties aforesaid ; or in case a partition thereof cannot be effected, then that the same may be sold under the direction of this court, and the proceeds thereof be distributed amongst the said parties in proportion to their respective interests, and that your orators may have such other or further relief as their case may require : May it please your honor to grant unto your orators the writ of subpoena, &c. [as in the first form^ 34 530 FORMS OF BILLS IN EQUITY. Bill for the Sale of ISeal Estate of Parceners where one of the Oivners is a Lunatic, Non-Resident, and An- other is an Infant, Non-Resident. To the Honorable the Circuit Coitrt of the District of Oolwm- hia, sitting in Washington County as a Court of Chancery : The bill of complaint of George ScMey and Mary H. Schley his wife, of Washington county, in the State of Maryland, and of James M. Schley and Ellen "K. Schley his wife, of Alleghany county, in the State of Maryland, respectfully shows: That heretofore a certain EredericK A. Schley, late of Frederick county, in the State of Maryland, deceased, was, in his lifetime, seized and possessed of certain real estate lying and being in Washington city, designated on the plat of said city as lot no. 6 in square 103, containing 9,203 square feet, and being so seized and possessed, on the fifth day of February, in the year eighteen hundred and fifty-eight, departed this life intestate, leaving your orators George Schley and James M. Schley and William Henry Schley and Buchanan Schley his only children and heirs at law, upon whom devolved all interest in the real estate of the said Frederick A. Schley. And your orators charge that the said William Henry Schley is lunatic and incar pable of managing his estate, and that Buchanan Schley is an infant under the age of twenty-one years, and that both of said children reside in the State of Maryland. And your orators further charge that the land is not suscep- tible of division, and that it will be for the benefit of the said William Henry Schley and the said Buchanan Schley, as well as of the complainants, that the said lot of ground be sold, as it is vacant and unimproved, and is not likely to so advance in value as to make it desirable on account of said William Henry Schley and Buchanan Schley, that said lot should remain unsold, as an agent would have to be employed to look after the same, and it is probable that the lot has already attained its full value so far as the interests of the said William Henry and Buchanan are to be affected. As your orators can have relief only in your honorable courtj they pray your honors that a decree may be passed for the sale of said lot under the direction of this court, and that the pro- ceeds of the sale may be distributed amongst the said parties in proportion to their respective interests, and that your orators may have such further or other relief as their case may require. May it please your honors to grant unto your orators an order of publication, giving notice to the said William Henry Schley, who is a non-resident as before stated, of the substance and object of this bill, and warning him to appear in this court in person or by solicitor, on or before a certain day, to answer FORMS OF BILLS IN EQUITY. 531 the premises, and show cause, if any he has, why a decree oiiffht not to pass as prayed ; and also a commission to three persons in Washington county, in the State of Maryland, authorizino- them or any two of them to go to said Buchanan Schley, who i^s an infant non-resident as before stated, and appoint a guardian for the purpose of answering and defending this suit, and also to take the answer and return it to this court. And' as in duty, &c. S. T., Solicitor for complainants. On this 9th day_ of April, 1860, appeared Samuel Tyler, solicitor for complainants, before the undersigned, and made oath on the Holy Evangelists, that William Henry Schley and Buchanan Schley, defendants named in the foregoing bill, reside beyond the limits of the District of Colimibia, and within the State of Maryland. WM. M. MEEEICK, A. J. Order to Ai»pomt a Ouardian to Infant to Answer the foreg^oin^ Bill. In the Circuit Court of the District of Co- lumbia, sitting in Washington county as a Court of Chancery. Geoege Schlet and Maet H. Schlet his wife, and James M. Schlet and Elleit N. Schlet, his wife, vs. William Henet Schlet and BucHANAK Schlet. It appearing from the bill of complaint in this suit that Buchanan Schley, one of the defendants, is an infant under the age of twenty-one years, and that he resides in Washington county, in the State of Maryland, it is upon the motion of the complainants, by their solicitor, Samuel Tyler, this ninth day of April, 1860, adjudged and ordered that a commission issue from this court, directed to Daniel Weisel, Alexander Niel, and An- drew K. Seister, Esquires, of Washington county, in the State of Maryland, authorizing them, or any two of them, to go to the said infant Buchanan Schley, and appoint a guardian- for the said infant, to aaswer and defend this suit, and that they take the answer of said guardian and return the same to this court. By order of WM. M. MEEEICK, A. J. 532 FORMS OF BILLS IN EQUITY. Affidavit of Liunacy. District of ColumMa, to wit : Personally appears before the subscriber, a justice of the peace, S. T., and makes oath in due form of law, that he has known for more than twenty years William Henry Schley, one of the defendants in the case in the Circuit Court of the Dis- trict of Columbia, No. 1608, Equity, in which George Schley and wife and James M. Scliley and wife are complainants, and William Henry Schley and Buchanan Schley are defendants, and that during all the time this affiant has known the said William Henry Schley he has been no?i compos mentis, incapar ble of managing his affairs, and that the said WiUiara Henry Schley is now, according to this affiant's information and belief, confined as a lunatic in Mount Hope Hospital, at Baltimore Oity, in Maryland. Sworn this 16th day of October, 1860, before JACKm THOMAS, J. P. Order appointing' a Gnardian ad litem for ttie Lnnatic. It is ordered by the court, this 17th day of October, 1860, that Wm. E. Woodward, be and he is hereby appointed guardian for Wm. Henry Schley, within named defendant, to protect hia interest in the equity suit of George Schley and others against him and Buchanan Schley, pending in this court, (By order of court.) Test'y. J. A. SMITH, Clerk. Answer of Wm, Henry Schley, by Wm. K, Woodward, kis Guardian, to the Bill of (Jeorge Schley and others, in the Circuit Court of the District of Columbia. This respondent, not being able personally to answer, but answering by the subscriber, appointed his guardian ad litem, says he believes the facts stated in the biU to be true as stated, and submits his interests to the care and disposition of the court, WM. E, WOODWARD. Sworn, in open court, this 1 ITth Oct., 1860, \ Test. J. A. Smith, Clerh. FORMS OF BILLS IN EQUITY. 533 Conmiission to appoint Onardian ad litem for Infant, Circuit Court of the District of Columbia, Bitting as a Court of Equity for Wash- ington county. The United States of America to Daniel Weisel, Alexander jYiell, and Andrew K. Selster, greeting : Whereas, George Schley and Mary H. Schley, his wife, and James M. Schley and EUen N. Schley, his wife, have lately ex- hibited their bill of complaint before us, in our court above mentioned, against William Henry Schley and Buchanan Schley, defendants. And whereas we have, by our writ, lately com- manded the said defendants to appear before us in our said court, at a certain day, to answer the said bill, but forasmuch as Buchanan Schley is an infant under age, and cannot answer said bin, nor defend this suit without having a guardian assigned in that behalf : Know ye, therefore, that we have given unto you full power and authority, in pursuance of the special order in our said court, to assign and appoint a guardian for the said infant, and to take the answer of the said infant by such guard- ian ; and therefore we command you that at such certain day and place as you shall think fit, you go to the said infant defendant, if he cannot conveniently come to you, and assign and appoint a guardian for the aforesaid infant, and take the an- swer of the said infant, by such guardian, to the said biU, on such guardian'^ corporal oath upon the Holy Evangel, to be ad- ministered by you, the said answer being plainly and distinctly written ; and when you shall have so taken the said answer, you are to send the same, closed up imder your seals, together with your certificate of your having assigned and appointed such guardian as aforesaid, and this writ unto us in our said court. Witness, the Hon. James Dunlop, chief judge of our said court, at the city of Washington, the seventh day of March, 1860. Issued this ninth day of April, 1860. ^ J. A. SMITH, Clerk. S. T., _ SoUoitor. 534 FORMS OF BILLS IN EQUITY. The Answer of Buchanan Schley, an Infant under the Age of Twenty, one Tears, by Harriett A. Hall, his Guardian, to the Bill of Com- plaint of George Schley and others against him, in the Circuit Court of the District of Columbia, sitting as a Court of Equity in Washington.County. This defendant cannot admit any of the matters and things alleged in the said bill, and being an infant of tender years, sub- mits his rights to the protection of this court. HAEKIETT A. HALL, Guardian. On this 17th day of September, 1860, the above named Harriett A. Hall appeared before us, as commissioners, and made oath that the matters and things stated in the foregoing answer are true to the best of her knowledge and belief. D. WEISEL, A. NIELL, A. K. SEISTER, Commissioners. State of Maryland, Washington County, to wit : We, the undersigned, commissioners named in the withia commission, do hereby certify to the honorable the Circuit Court of the District of Columbia, sitting in equity for Wash- ington county, that we have, in pursuance of the power and authority therein, assigned and appointed Harriett A. Hall, of Washington county, Maryland, guardian for Buchanan Schley, the infant therein named, we having first gone to said infant, and have taken the answer of said infant, by said guardian, to the bill therein named, upon her corporal oath administered by US, which answer is hereto annexed and made part of this return. Given under our hands and seals, at Hagerstown, Maryland, this lYth day of September, 1860. D. WEISEL. [SEAL.J A. NIELL. [seal.] A.K SEISTEE. [seal.] FORMS OF BILLS IN EQUITY. 535 Geokge Schley and Others vs. "Wm. Henet Schley and Others. In Equity. JVo. 1608. This cause coming on to be heard upon the order of pub- lication against the non-resident defendant Wm. Henry Schley, heretofore passed in said cause, and which appears to haye been published pursuant to such order, and also upon the answer of the defendant Buchanan Schley, and also upon the answer of Wm. Henry Schley, hj Wm. K. Woodward, who has been ap- pointed guardian ad litem for said last-named defendant, as to both of which defendants the cause has been set for hearing by consent ; it is therefore, this 18th day of October, 1860, ordered by the court that, preliminary to a final decree, the cause be referred to W. S. Cox, special auditor, to inquire and report, first, whether the lot in the bill mentioned be susceptible of specific partition between the complainants and defendants; and if not, second, whether it will be for the benefit and advan- tage of the minor defendant and the other parties to the cause that the same should be sold for the purpose of division ; that he report the value of said lot, and take testimony, and return the same with his report, giving reasonable notice to the par- ties, &c. (By order of the court.) Test. J. A. SMITH, ClerJc. Anditor's Report. Circuit Cov/rt of the District of Columhia \ for the County of Washington. j Geoege Schley ajsd Othees vs. Wm. Henby Sohley aito Othees. In Equity. iT*?. 1608. The undersigned, to whom the above cause was referred as special auditor, respectfully reports, that, after notice to counsel, he proceeded to inquire into the matters referred to him. 536 FORMS OF BILLS IN EQUITY. He took the deposition of "Wm. Q-unton, which is hereto an- nexed. It appears that the lot is in an improving part of the city, where sites are generally selected with a view to erecting fine buildings. This lot has' 71^- feet front. If divided Bpeciflcally between the parties, who are four in number, it would make four lots of less than eighteen feet front each, a very undesirar ble division for this locality. They would not be equal in value, as the comer lot would be considered best ; and they could only be equalized in value by stUl further reduction of the size of the other lots. ' The auditor is therefore of opinion, that, although a division in specie might be made, it would not be advantageous or for the interests of the parties concerned. The lot is vacant, yielding no income, but bringing the owners in debt for taxes. It has had a pavement laid in front, and is in a good condition for sale. It is, therefore, the judgment of the auditor, that it would be for the benefit and advantage of the infant defendant, as well as the other parties to the cause, that the property should be sold for division. The value of the property is about $4,000. Eespectfully submitted. W. S. OOX, November 2, 1860. Special Auditor. SOHLET vs. SoHLET. In Eqmty. No. 1608. "Wm. Gunton, being duly sworn, says : I am familiar with the property mentioned and described in the papers in this cause. I have been paying tke taxes on it for about thirty years or more. I do not think the lot could be advantageously di- vided between the four parties to this suit. It would give less than eighteen feet front to the lots,. whereas in that part of the city the lots would sell much better with a larger front. I think that, for this reason, it would be for the advantage of the parties to have sale and a division of the proceeds. I value the lot at about $4,000. WM. GKIN'TON. Sworn to, this 2d of November, ) 1860, before f W. S. Cox,_ Special Auditor, FORMS OF BILLS IN EQUITY. 537 Order of Publication. In tlie Circuit Court of the District of Co- lumbia, sitting in Washington county as a Court of Chancery. Geokge Sohlet and Majkt H. Schley, his wife, and James M. Schley asd Ellen N. Schley, hie wife, vs. William Heney Sohley akd Bit- CHANAN Schley. The object of this suit is to procure a decree for a sale of certain real estate lying and being in Washington city, and de- signated on the plot of said city as lot No. 6, in square 103. The bill states, that a certain Frederick A. Schley, late of Frederick county, in the State of Maryland, was seized and pos- sessed of the aforesaid lot or piece of land, and being so seized and possessed, on the fifth day of February, in the year eighteen hundred and fifty-eight, departed this life intestate, leaving the parties to this suit, George Schley, James M. Schley, William Henry Schley, and Buchanan Schley, his only children and heirs at law. That the said William Henry Schley is a lunatic, and incapable of managing his estate, and the said Buchanan Schley is an infant under the age of twenty-one years ; and that both the said lunatic and infant reside in the State of Maryland. That it will be for the benefit of the said lunatic and infant, and of aU the other parties concerned, that said lot or piece of land be sold, and the proceeds of sale be divided amongst the parties according to their respective rights. It is, therefore, this ninth day of April, in the year 1860, adjudged and ordered, that the complainants, by causing a copy of this order to be inserted in some newspaper published in Washington city, once a week for six successive weeks, the first insertion to appear at least four months before the first Monday of September next, give notice to the said William Henry Schley of the object and substance of this biU, and warn him to appear in this court in person or by solicitor, on or before the first Monday of September next, to answer the premises, and show cause, if any he has, why a decree ought not to pass as prayed. WM. M. MEEEICK, A. J. Samuel Ttlee, Solicitor. ' [True copy.] Test. J. A. SMirH, Clerk. 538 FORMS OF BILLS IN EQUITY. Certificate of Publication of the Foregoing^ Order. Office of the National 'Intelligencer, \ Washington, October 9, 1860. f "We hereby certify that the advertisement, of which the an- nexed is a copy, was published in the National Intelligencer once a week for six successive weeks, commencing on the 11th day of April, 1860. For Gales aot) Seaton, ED. S. FLETCHEK. Form of Setting Case for Hearing by Consent, whicli is usually indorsed on ttae Bill. Set for hearing by consent. SAM. TYLEE, /br convploA/nants. WM. E. WOODWARD, for defendmts. Final Decree. Geoegb Sohlet ajjd Othees vs. Wm. Hbnbt Schley ajtd Othees. In Equity. Jfo. 1608. The above cause having been set for hearing by consent, upon the biU, answers, and order of publication against Wm. Henry Schley, and having been referred to W. S. Cox, special auditor, to inquire and report whether the premises in the bill named could be specifically divided among the complainants and defendants, and if not, whether it womd • be to the advan- tage of all the parties that the same should be sold ; and the cause now coming on for final hearing upon the bill, answers, order of publication (which appears to have been pubHshed as directed), and the report of the said auditor and deposition, and the court being satisfied that it will be for the interest and ad- vantage of the minor defendant in said cause as well as of all other parties to the same, complainant and defendant, that the said premises should be sold for the purpose of division among them ; it is, therefore, this 5th day of IS'ovember, 1860, ordered, adjudged and decreed, that the said biU, and the matters there- FORMS OF BILLS IN EQUITY. 539 of, be, and the same are hereby, taken for confessed against the said Wm. Henry Schley, in order, &c. ; and the court proceed- ing to pronounce such decree as is right and proper as to all the parties to the cause, do further order, adjudge and decree, that the said premises in the biU mentioned, to wit, lot number six in square number one hundred and three, in the city of Wash- ington, be sold for the purpose of division among the said com- plainants and defendants ; that for such pui-pose Samuel Tyler be, and he is hereby, appointed trustee, who shaU give bond to the United States in the penalty of eight thousand doUars, with security to be approved by the court, or one of the judges thereof, for the due and faithful execution of the trust hereby reposed in him ; that such sale shall be made at auction, after advertising the time, terms and place of sale three times a week for three successive weeks in the National Intelligencer, and otherwise as the trustee shall think right, prior to the day of sale, the terms of sale to be one-fourth of the purchase money in cash, and the residue in three equal installments of six, twelve, and eighteen months, with interest from the day of sale until paid, the pur- chaser to give bonds for the deferred payments with security to be approved by the trustee, and a hen on the premises to be retained as additional security ; that the trustee have authority to postpone the sale from time to time, and to resell on default of any purchaser, giving reasonable notice of any such resale ; that he make report of his proceedings, from time to time, and of the fairness of the sale made by him, on oath, and bring the proceeds of sale into court to be distributed as the court shall direct ; and, further, that, on payment of the purchase money and final ratification of the sale, the said trustee convey the premises sold to the purchaser in fee simple. (By order of the court.) Test. J. A. SMITH, aerh. On motion of complainants it is, this Yth day of January, 1873, ordered, that the " Morning Chronicle " be substituted in place of the " National Intelligencer," as the paper in which to advertise the notice of sale directed by the decree in this cause. By the court, A. "WTLIE, Justice. 540 FORMS OF BILLS IN EQUITY. In the Supreme Court of the District of Co- lumbia, sitting in equity at a Special Term, July, 1869, held by Justice Olin, this 16th day of July, 1869. Geoegb Schley aud Otheeb vs. Schley and Othebs. The petition of Samuel Tyler, trustee in No. 1608 Equity, respectfully shows, that his name was originally inserted as trustee merely pro forma in the decree in this case for the sale of the property therein decreed to be sold. The petitioner, therefore, prays that George Schley and James M. Schley, com- plainants in the cause, be substituted as trustees in his stead. SAMUEL TYLEK, Trmiee. I do solemnly swear that I have read the above petition sub- scribed by me, and know the contents thereof, and that the facts therein stated, upon my personal knowledge, are true, and that the facts therein stated upon information and belief, I beheve to be true. SAMUEL TTLEE. Sworn before me, July 16, 1869. K. J. Meigs, Clerk. Upon the above petition of Samuel Tyler, it is, this 16th day of July, 1869, ordered, adjudged and decreed, that George Schley and James M. Schley be, and they are hereby, appointed trustees in the stead of the said Samuel Tyler, subject to the terms, conditions and modes of proceeding prescribed in the decree for the trustee in making sale of the property decreed to be sold in No. 1608 Equity. A. B. OLIN, JusUoe. Note. — The foregoing is the regular procedure for the relief prayed, in the till. More summary proceedings in such cases have ieen introduced into equity practice in some of the United States, where there are no non-reddent FORMS OF BILLS IN EQUITY. 541 Bill to have an Agreement, defective by mistake, recti- fied; and the specific performance of the rectified Agreement decreed. To ths HonorMe Madison Nelson, Judge of the Circuit Court for Frederick County, as a Court of Equity : The bill of complaint of Eebecca C. Kemp, of Frederick county, hmnbly shows, That heretofore, on or about the 27th of January, m the year eighteen hundred and fifty-seven, a cer- tam Grafton A. Clagett, of the said county, agreed with your oratrix to purchase from her a certain house and farm in the neighborhood of Frederick City, in said county, for the sum of eight thousand five hundred dollars, four thousand five hundred dollars to be paid on the first day of April, in the year eighteen hundred and fifty-seven ; the balance, in four equal annual pay- ments, with interest, to be secured by notes with security, and to remain a lien on the property sold. On the payment of the four thousand five hundred dollars, the said Eebecca C. Kemp was to execute to the said Grafton A. Clagett a good and suffi- cient deed for said property. It was further agreed that there are fifty-two acres of land in the said farm. The grain growing on the farm was to belong to the said Grafton A. Clagett. FuU possession was to be given on the first day of April, eighteen hundred and fifty-seven. And your oratrix further alleges, that in committing the said agreement to vmting, the stipulation that the notes for the four last payments were to bear interest was, by mistake, omitted ; and the agreement, as written, is therefore silent in regard to interest on the' deferred payments, though it was in- tended by your oratrix and also by the said Clagett, that the notes should bear interest, and tha^. they should be so written. The said agreement, as written, is herewith filed as a part of this bill, marked "Exhibit A." And your oratrix further alleges, that the said Clagett has taken possession of the said house and farm so purchased, and has paid the first payment of four thousand five hundred dol- lars on the purchase thereof. fiut the said Clagett, not regarding his said agreement so made with your oratrix, but contriving and intending to deceive and defraud your oratrix in this behalf, has always hitherto de- layed and refused to perform his agreement to give his notes bearing interest according to the stipulation entered into with your oratrix, but omitted by mistake in committing the same to writing ; although your oratrix is ready and willing, and has always been ready, and has offered to give' and tendered to the said Clagett a good and sufficient deed of the said property, 542 FORMS OF BILLS IN EQUITY. whenever the said notes, with interest, should be given to your oratrix by the said Olagett. And the said Clagett, amongst other things, pretends that, as the stipulation between him and your oratrix, to pay interest on the said notes, is not contained in the written agreement, that he is not bound by the stipula- tion ; and is required only to give notes without interest for the last payments. But your oratrix is advised that this honor- able court has the power to reform and rectify said written agreement so defective by omission and mistake, so as to make it conform to the true agreement entered into by your oratrix and the said Clagett, by inserting in it the clause alleged as aforesaid to have been omitted by mistake ; and that, when the said agreement is so reformed and rectified, this honorable court has the power of enforcing a specific performance of the con- tract so reformed and rectified, by compelling the said Clagett to give his notes bearing interest to your oratrix, in accordance with the rectified agreement in writing. To the end, therefore, that the said Clagett may answer the matters and things hereinbefore stated ; and that the said agree- ment, as committed to writing, may be reformed and rectified by inserting in it the clause omitted by mistake, that the notes for the four deferred payments of the purchase money of the said house and farm, shall bear interest ; and that the said Clagett may be decreed to give his notes bearing interest from the first day of April, eighteen hundred and fifty-seven, to your oratrix, in accordance with said rectified instrument of writiag, and to accept from your oratrix a good and sufficient conveyance of the said house and farm ; and that your oratrix may have such other and further relief as her case may require. \Prayer for sub- pwna.) S. T., Solicitor for com/plmncmi. Final Decree. ^^^ ' No. 2732 Equity. vs. y In the Circuit Court for Frederick Cmmty, as a Cov/rt of Equity. Clagett. This cause standing ready for hearing, and being submitted, the solicitors for the parties were heard, and the proceedings read and considered. FORMS OF BILLS IN EQUITY. 543 There can be no doubt that upon testimony strong enough to satisfy the court, the court has the power to rectify and reform a contract, when a mistake has been made in committing the contract to writing, and to decree a specific performance of the contract as amended. The only inquiry, therefore, in this case is, whether the testimony is such as to authorize the court to exercise the power of amendment, because of a mistake or omission proved in regard to the contract in question. The answer in the cause not being required to be on oath, is not evi- dence in the cause. The case, therefore must rest upon the tes- timony of Lewis Q. Kemp, and as Lewis G. Kemp testifies, in the most positive manner, that the mistake or omission alleged in the biU to have been made in the contract, was made ; and further testifies that the defendant Olagett admitted to him, Kemp, that the alleged mistake was made in committing the contract to writing, and that the real contract was such as the biU alleges it to be. If Kemp is to be believed, the mistake is proved, and the court is authorized to reform the contract by correcting the mistake. As there is no evidence in the cause to contradict Lewis Gr. Kemp, or to impeach his veracity, the court must consider the bill as proved, and must decree the contract to be reformed, and that the defendant shall perform the con- tract so reformed and amended, as prayed in the bill. It is thereupon, this 24th day of January, in the year eighteen hundred and sixty, by Madison Nelson, judge in equity, and by the authority of this court, adjudged, ordered and decreed, that the contract or agreement between Rebecca C. Kemp and Q-rafton A. Olagett, filed in this case as Exhibit A, be, and the same is hereby reformed and amended by insert- ing and incorporating into the ninth line from the top, imme- diately after the word " notes," the words, " with interest from the first day of April, eighteen hundred and fifty-seven," so as to make the four back payments of the purchase money bear interest from the first day of April, 1857, according to the real contract proved in the cause. And it is further adjudged, ordered and decreed that the defendant, Grafton A. Olagett, make, execute and deliver to the executor of the said Rebecca 0. Kemp, Lewis Gr. Kemp, a party now to this cause, four notes, each for eight hundred and seventy-five dollars, bearing interest from the first day of April, 1857, with security. And it is further adjudged, ordered and decreed that, upon the dehverj of the notes as aforesaid to the said Lewis G. Kemp, as executor, the said Grafton A. Olagett is entitled to a good and sufficient deed of conveyance of the land purchased by said articles of agreement from the said Rebecca 0. Kemp ; 544 FORMS OF BILLS IN EQUITY. and it is furtlier adjudged, ordered and decreed that each party pay his own costs, M. NELSON. Bill averring Fraud, and Asking that a Fraudulent Deed may be annulled. The bill of complaint of J. B., of , respectfully showeth unto your honor, that P, F., of Baltimore City, was indebted to your orator in the sum of , current money, on his certain promissory note dated on or about the day of , in the year , with interest thereon from the date thereof, and which, when overdue, the said P. F. neglected to pay, though often requested so to do. Therefore your orator thi-eatened to bring suit against the said P. F. on the said prom- issory note. Whereupon the said P. F. conveyed away to one H. K., of Baltimore City, all his property, real and personal, for a pretended consideration, by a deed dated the day of , in the year , a certified copy of which deed is herewith exhibited, marked " A," as a part of this bill of complaint. And your orator further states, that at the time the said P. F. made the said deed to the said H. K., he was largely in- debted, and had no means to pay his debts apart from the prop- erty so conveyed by him. That the said conveyance was fraudulently made, not bona fide, but for a mere simulated and pretended consideration, and was made to hinder, delay, and de- fraud your orator and the other creditors of the said H. K. of their just and lawful claims. And your orator further states, that. after the execution by the said P. F. of the aforesaid fraudulent deed to the said H. K., your orator brought suit on the aforesaid promissory note against the said P. F., in the Court of Baltimore City, and on the day of , in the year , obtained a judg- ment against the said P. F. for , with interest from the said day of , in the year , and costs ; and that, on the day of , in the year , your orator issued & fieri facias on said judgment, and the same was delivered into the hands of the sheriff. All of which will appear by a short copy of said judgment and docket entries, under the seal of the coiurt, marked " B," as a part of this bill. To the end therefore that the said P. F. and H. K. may an- swer the said premises, and that the said- deed from the said P. F. to the said H. K. may be declared void, and may be FORMS OF BILLS IN EQUITY. 545 vacated and annulled, and that your orator may have such further or other rehef as Ins case may require : May it please your honor to grant to your orator the writ of subpcena, commanding the said P. F. and the said H K to be and appear m this court, on some day to be named therein to answer the premises, and abide by and perform such decree as may be passed therein. S. T., Solicitm-for complainants. Bill by One Partner against Anotlier for Dissolution of the Partnership, the Appointment of a Receiver, for an Injunction, and for Oeneral Relief. To the Honorable , Judge of the Circuit Court of Baltimore City : The bill of complaint of A. B., of Baltimore City, respect- fully represents that heretofore, to wit, on or about "the day of , in the year , your orator entered into arti- cles of partnership with one 0. t)., of the city aforesaid, for the purpose, of conducting the grocery business in the city aforesaid, under the name and style of A. B. & Co. ; a copy of said articles of partnership is herewith filed, marked JSTo. 1, as a part of this bill. That by the express terms of said partnership, each partner is required to devote his whole time and attention to the busi- ness of the partnership, yet the said C. D. has, from the begin- ning of the partnership business, altogether neglected, and still neglects, to give any attention to the business of the firm, but leaves the business of the partnership entirely to the care and management of your orator. That the said 0. D. has, at different times, collected large sums of money from the debtors of the firm, for which no en- tries appear on the books of the firm, and has applied the same to his own individual use ; and has refused to pay just debts due by the firm, though they were contracted by himself in the name of the firm. That there are a large number of debts due to the firm that are in a course of collection by suits in courts, and your orator has reason to believe and to fear that the said C. D. will possess himself of the money so collected, or portions of it,, without accounting to your orator for it, and will fraudulently use it outside of the partnership business for his individual profit. That the said 0. D. has already abstracted, by his fraudulent dealings with the funds of the firm, a great deal mora than, his 35 546 FORMS OF BILLS IN EQUITY. share in the partnership would have been, even if he had ac- counted for all the. funds which have come into his hands in the ways mentioned. To the end therefore that the said 0. D. may answer the matters and things hereinbefore stated fully and particularly, as if he were specifically interrogated as to each hereinbefore statement ; and that a receiver may be appointed to take charge of the partnership books and papers of account, and the goods and effects, and to collect the debts due to the firm, and to pre- serve or dispose of the same under the direction of this court ; and that the said C. D. may, by injunction, be restrained from selling, or disposing of, or retaining from the receiver ap- pointed as aforesaid, any of the goods and effects of the part- nership, or collecting any debts due thereto, or negotiating any bill or note, or contracting any debt whatsoever on account thereof, or intermeddling in any other manner with the busi- ness of the firm ; and that the said partnership may be dissolved; and that your orator may have such other or further relief as his case may require : May it please your honor to grant to your orator a writ of injunction against the said C. D., enjoining and strictly pro- hibiting him [here insert the words of the prayer'] ; and also the wi'it of subpoena, commanding him to appear in this court, at a certain day to be therein named, to answer the premises, and abide by and perform such decree as may be passed therein, and as in duty, &c. , . ) Solicitor for complainant. AffldaTit to accompany Bill. Baltimore City, to wit : On this day of , in the year , before me, a justice of the peace in and for said city, personally appeared the above named A. B., and made oath that the matters stated in the foregoing bill are true, to the best of his knowledge and belief. Bill for Specific Performance. To the Hon. , Judge of the Circuit Court of The bill of complaint of T. B. respectfully shows, that a certain K. L. is possessed of a certain lot of ground, situate FORMS OF BILLS IN EQUITY. 547 , ^liich is described in a deed to said K. L., a certified c^y whereof is herewith filed, marked "A," as a part of th2 And so being owner of said property, the said K. L. con- tracted and agreed with yonr orator to sell the same to him for the Slim of monev and upon the conditions and stipulations contained in the written agreement between them, which is here- with hied as a part of this bill, marked " B " And your orator further sho^s, that in part performance of said agreement, he entered into possession of the said lot of ground,_ and made the first payment of the purchase money amounting to , to the said K. L. That your orator has since tendered to the said K L the balance of the purchase money, and is ready and willing to pay the same, but the said K. L. refuses to receive it. \ our orator avers that he has performed all the require- ments^ of said agreement on his part to be performed, hut that said K. L. refuses to make a conveyance of the property afore- said to your orator, as he ought, in equity and good •conscience, ■ to do. To the end therefore that a decree for the specific perform- ance of said contract may be passed, and that your orator may receive a good and sufiScient deed for the said lot of ground, according to the course of this court, and may have such further or other relief as his case may require : May it please your honor to grant to your orator the writ of subpcena, &c. Bill for an Injunction to restrain the defendant from prosecKting a Suit at Law against the Complainant, and also to restrain him from pleading a set-off to another Suit at L,a,w by the Complainant against the Defendant. To the Hon. Madison Nelson, Circuit Judge of the Third Judicial Circuit, sitting in erpiity for Frederick county : Your orator, Jacob Markell, of Frederick county, shows unto your honor, that heretofore,, to wit, in the year 1852, your orator and a certain Francis Thomas, of Alleghany county, and Jacob M. Kunkel, of Frederick county, were jointly concerned as partners in certain lands lying and being in Alleghany county, in the State of Maryland, the legal title of which was in your orator. That the said Jacob M. Kunkel made certain pay- ments and advancements out of his own individual funds in 548 FORMS OF BILLS IN EQUITY. relation to said lands and for the benefit of said partnership con- cerns. That among other payments and siims advanced hy said Kunkel far said partnership, there were certain of them amount- ing to the sum of fifteen thousand and ninety-five dollars and ninety-five cents. That the said Kunkel, knowing the legal title m said lands to be in your orator as one of the partners, applied to your orator to recognize the said claim and secure its ultimate payment out of the .said partnership lands and prop- erty by giving him a single bill or note under seal, for the pay- ment of the same, and a mortgage on said lands, the legal title of which was in your orator. That at the time of said.applicar tion it was well known to said Kunkel that said debt was on account of said partnership concern ; that it was not the indi- vidual debt of your orator, but was solely a debt for and on account of said partnership of which he was one of the com- pany ;, and said Kunkel well knew and so stated to your orator, that as the- legal title to said land or property was in your orator as an individual, though the property was partnership property, and as your orator knew that said, debt was due to him on ac- count of said property, that he should execute and deliver a note or single bill to him, the. said Kunkel, for the payment of said amount, and also a mortgage, on said property to secure the payment of the same. That your orator knowing said facts, and not supposing that the said Kunkel would ever look to your orator individually to pay said note, but would treat it as a part- nership transaction, to be paid out of the partnership property, and that his only reason for requesting said note and mort- gage was to hold and bind the said partnership lands, and more specifically to show the precise amount of his said claims thus reduced into one aggregate sum, which said claims so paid by him were known to your orator to be correct ; and ypirr orator, supposing said Kunkel as a partner to be endeavoring merely to fix the amount of his claim against said partnership, the legal title of which property was in your orator ; and that in no event was the said Kunkel to look to your orator to pay said sum, it being advanced on said partnership business and account by said Kunkel as one of the partners, and to be paid out of the said partnership capital, your orator agreed to execute and did exe- cute a note to said Kunkel to pay said sum of fifteen thousand and ninety-five dollars and ninety-five cents, five years after date, with interest from the 8th day of -4pril» 1852, the date of the note, payable quarterly ; and your orator also executed and delivered to said Kunkel a mortgage on said lands of the part- nership to secure the payment of said note. Tour orator further shows to your honor that the said part- nership in said lands, continued imtil the month of November, FORMS OF BILES IN EQUITY. 549 1852, when your orator and the said Kunkel sold out their in- terests in the same to the aforesaid Francis Thomas ; and all the partners entered into a written article of sale of the said lands to the said Thomas on certain terms therein specifically set forth. That by said terms of the sale Thomas was to pay said debt of fifteen thousand ninety-five dollars and ninety-five cents out of the purchase money. Your orator further represents to your honor that at the time he and the said Kunkel sold out their interests as partners in the said lands and property, it was then expressly agreed and understood between your orator and the said Kunkel, in consid- eration of your orator suffering the said Thomas to pay over to said Kunkel or your orator's paying over to the use and benefit of said Kunkel, the sum of nearly eleven thousand dollars secured by a mortgage, that he the said Kunkel would look to the said Thomas and the proceeds of the lands of the partner- ship sold as aforesaid to the said Thomas, for the payment of the said note or single bill, and that he the said Kunkel was in no event to look to your orator for the payment of the said single bill or note out of his individual property or means. That in compliance with said agreement and understanding be- tween your orator and the said Kunkel, he the said Kunkel did receive for his exclusive use and benefit the said sum of nearly eleven thousand dollars. And your orator further states that at the time he and the said Kunkel sold their interests as partners in said lands to the said Thomas, it was expressly agreed and understood by and between the said Kunkel, the said Thomas and your orator, that he the said Kunkel was to look to the said Thomas and the proceteds of said partnership property exclu- sively, and not to your orator, ,f or all the money due to him, the said Kunkel, for or on account of his advances of money for said land and estate in Alleghany as aforesaid, and paid on account of said partnership dealings, the said fifteen thousand and ninety-five doUars and. ninety-five cents being a part thereof. And your orator was on his part in like manner to look to said ' Thomas and the proceeds of said land for all the money to which he was entitled under said contract of sale to the said Thomas. And your orator further shows that said Kunkel was to receive the sum of three thousand dollars over and above the debts and interest due him on account of said partnership trans- actions as a lonus for money advanced, agreements entered into concerning the said property, the greater part of which he has actually received for his interest as a partner in said concerns. And your orator expressly states that said note or single bill and mortgage were given not to bind or to hold accountable or to be 550 FORMS OF BILLS IN EQUITY. paid by your orator out of Ms individual property in any even but solely for the purpose herein before set forth. Your orator further states that after the execution of tL said single bill and mortgage, and after the sale of the said par nership property to said Thomas as aforesaid, the said Kunke in the year 1854, called on your orator to confess a judgment t him for the interest then due on said single bill, which he sai was due and ought to be further secured by a judgment whic would carry interest on its amount. Your orator, supposin that the object of said Kunkel was merely to secure the benef of the interest on the interest due on said single bill, and tha he was to be in no way individually answerable for said singl bill or the interest on the same, agreed on the 14th day of Octc ber, 1854, that a judgment might be rendered up for said inte'i est due on the 8th day of October, 1854, a copy of which sai agreement and judgment rendered thereon is herewith exhil ited marked (No. 1.) That some time after the rendition of sai judgment the said Kunkel had a fieri facias issued on sai judgment and placed in the hands of the sheriff, with directioE to said sheriff to make the money on the same out of the ind vidual property of your orator, as if it were his individual deb and not a partnership debt as hereinbefore set forth. Th£ thereupon your orator filed a bill in equity in this honorabl court, which is numbered on the docket of this honorable cou) 2759, against the said Kunkel and the sherifi, setting forth th facts hereinbefore stated, showing that your orator was not ind vidually responsible for the money due on the judgment so coi f essed, nor for the sum due on the single bill for the'interest o which the judgment had been rendered, and praying the coui for an injunction against the said Kunkel and the sheriff, ei joining them from executing the said fieri facias against th goods of your orator, and from aU further proceedings in la^ upon said judgment and fieri facias, and that the said Kunk( should answer the said bill upon his corporal oath. That ti injunction so prayed was granted by this honorable court an still remains in force, restraining the execution of the fieri ft CMS and all further proceedings at law on the judgment; an the said Kunkel has not answered the said bill, as he was sun moned and commanded to do. A copy of said biU and injuni tion is herewith filed, marked (JSTo. 2.) Your orator further shows that notwithstanding the execi tion on the aforesaid judgment for the interest due on said sii gle bill had been enjomed as aforesaid by this honorable cour because of the facts in the bill showing that the single bill w: not an individual debt of your orator, and the bill had not bee answered by the said Kunkel, and the injunction against hh FORMS OF BILLS IN EQUITY. 551 ^va3 still In force, the said Kunkel did, in yirtual evasion of said nijLinction, on tlie 28tli day of September, 1858, institute a suit pgainst your orator on the said single bill for the fifteen thou- sand and ninety-five dollars and ninety-five cents for which it was given, as if it were the individual debt of your orator and not a debt of the partnership as hereinbefore set forth Said suit was docketed as No. 248 originals, October term, 185S in the Circuit Court for Frederick county, as appears by a copy of the docket entries and proceedings herewith filed, marked (Xo. 3), and will stand for judgment on the docket of February term of said court, 1866. Your orator further charges that the said land and. partner- ship property which your orator and the said Kunkel sold to the said Thomas, and which was mortgaged as hereinbefore stated to pay said single bill, and it was agreed, as hereinbefore stated, should be looked to by the said Kunkel as alone to furnish the means of_ paying said single bill, has been sold by the said Thomas since the institution of the aforesaid suits against your orator by the said Kunkel, and the said sum due by the said single bill, and secured by mortgage and agreements as aforesaid tobe paid out of the land and property, has been paid to the said Kunkel out of the proceeds of the sale of the said partner- ship property, so that the sum due by the said single bill is entirely paid and satisfied, and the said Kunkel has no shadow, even, of claim against any one, much less against your orator. And yom- orator further shows, that your orator has brought a suit against the said Kunkel for two thousand dollars, on a note made by the said Kunkel and indorsed to your orator for valuable consideration ; and that said suit will stand for judg- ment on the docket of the February term, 1866, of the Circuit Court for Frederick county ; and your orator has reason to be- lieve, and expressly charges, that the said Kunkel will, as your orator has no defense against it at law, attempt to use the said single bill of fifteen thousand ninety-five dollars and ninety-five cents by way of set-off against the claim upon which said suit is brought. A copy of the proceedings in said suit is herewith filed, marked (No. 4), which together with all the other exhibits your orator prays may be taken as a part of this bill. Tet so it is, may it please your honor, that the said Kunkel, well knowing the hereinbefore facts stated, and that your orator is in no way directly or indirectly answerable or liable for the sum named in the aforesaid single bill, and never was so liable, has instituted the aforesaid suit on said single bill against your orator, and also, as your orator charges, purposes to use the said single bill as a set-ofi against the said suit which your orator has instituted against the said Kunkel as hereinbefore stated, know- 552 FORMS OF BILLS IN EQUITY. ing as he, the said Kunkel does, that your orator has no rejief at law against the enforcing the said single bill against your orator, either in the suit which he has brought, or as a set-oflE against the suit which your orator has brought against him, your orator's only defense and relief being in your honorable court as a court of equity. All which actings and doings of said Kunkel are contrary to equity and good conscience, and tend to the mani- fest injury and loss of your orator. To the end, therefore, that the said Jacob M. Kunkel may be perpetually enjoined from any further proceedings at law in the said suit instituted on the single bill against your orator for the fifteen thousand ninety-five dollars and ninety-five cents ; and also be enjoined from setting off the said single bill against the said suit, claim or action instituted by your orator against the said Kunkel ; and that the said Kunkel may answer on his corporal oath this bill of complaint, as if the same were here re- peated and he interrogated specifically thereto ; and that your orator may have all such other and further relief as the nature of his case and the rules of your court may allow, may it please your honor to order and direct the State's writ of injunction to be issued to the said Jacob M. Kunkel, enjoining him from fur- ther proceedings in the said suit against your orator, and from using the said single bUl by way of set-off against the suit afore- said which your orator has brought against the said Kunkel. And also to order and direct the State's summons to be issued and directed to the said Kunkel, commanding him to be and appear in your honorable court on a day to be merein named, to answer this bill of complaint, and to stand to and abide by such order and decree as your honor may pass in the premises. And as in duty bound, and so forth. S.T., Solicitor for complainant. State of Ma/rylarid, \ , . , . Frederick county, \ On this day of February, 1866, Jacob Markell, the complainant in the foregoing bill, appears before me, the sub- scriber, a justice of the peace of the State of Maryland, in and for Erederick county, and makes oath on the Holy Evangehsts of Almighty Grod, that the several facts, matters and things set forth in the foregoing bill of complaint are true as therein stated, to the best of his knowledge, information and belief. FORMS OF BILLS IN EQUITY. 553 Injunction Bond. Know all men by these jjresents that we, Jatob Markell, , aU of Frederick county, in the State of Mary- land, are held and firmly bound to Jacob M. Kunkel, of said county and State in the sum of , current money, to be paid to the said Jacob M. Kunkel, his heirs, executors and ad- ministrators, to which payment, well and truly to be made and done, we bind ourselves and each of us, our and each of our heifs, executors and administrators jointly and severally, firmly by these presents, sealed with our seals and dated this dav of February, 1866. '' _ Whereas, the said Jacob MarkeU is about to obtain from the Circuit Court for Frederick county, as a court of equity, an in- junction to stay proceedings in a suit at law in the Circuit Court for Frederick county, brought by the said Jacob M. Kunkel against the said Markell, on a single biU for the sum of fifteen thousand and ninety-five dollars and ninety-five cents, brought to the October term, 1858, of said court, and still pending in said court; and also to restrain the said Jacob M. Kunkel from pleading, fihng or using the said single bill as a set-off in a suit brought by the said Jacob Markell against the said Kunkel on a note for two thousand dollars, made by the said Kunkel and indorsed to the said Markell, in the Circuit Court for Frederick county, and still pending in said court. Now the condition of the above obligation is such that if the said Jacob MarkeU shall prosecute the said writ of injunction with effect, and satisfy and pay the damages and costs which may be recovered from him in said suit, as well as all costs and charges that shall occur in the Circuit Court for Frederick county as a court of equity, and also any damages that may occur to the said Kunkel by reason of being restrained from using the said single bill as a set-off in the said suit, unless the Circuit Court for Frederick county, sitting as a court of equity, shall decree to the contrary, and shall well and truly in all things obey such order and decree as the Circuit Court for Fred- erick county, sitting as a court of equity, shall make in the premises, then the above obligation to be void, else to be and remain in full force and virtue. In witness whereof, we have hereunto set our hands and affixed our seals, the day and year first hereinbefore written. Signed, sealed and delivered ) [sbal.J in the presence of f [seal.] 554 FORMS OF BILLS IN EQUITY. An Amended or Supitlemental ISill. The amended (or supplemental) bill of complaint of A., of , humbly shows, that heretofore he filed his bill of com- plaint in this court, against a certain B., of , praying, amongst other things, for a sale of certain premises mortgaged by the said B. to your orator, as in said bill is particularly set forth, to which bill the defendant answered, and other proceed- ings were had, as by the same proceedings now in this court, will appear. And your orator has lately discovered, and now charges, by way of amendment (or supplement) to his aforesaid bill of com- plaint, that the said B., subsequent to the date of his aforesaid mortgage to your orator, conveyed or assigned aU his remaining interest or equity of redemption in said premises unto one C, of said , Avho is therefore a necessary party to this suit. To the end, therefore, that the said B. may answer this amendment, and that the said C. may answer as well the matters charged in the original bill of complaint, as in this amended bill ; and that your orator may have such relief against them as is prayed by his original bill against the said B. : May it please, &c. [ooncluding with the usual prayer of process.'] SiSI of Hevivor t>y tSie Ovi§iia&\ Complsiinant, against the EsecMt®!" of tlie Original Defendant, irlio had an- swered the Original Uill before his Death. The bill of complaint of A., of county, humbly shows, that heretofore he filed his bill of complaint in this court, against a certain B., C. and D., praying, amongst other things, &c. [here insert prayer of original hill in suoh manner as to show the right to revive against the executor of the deceased de- fendant.l To which said bUl the said defendant answered, and other proceedings were had, as by the same proceedings now remaining in this court will appear. And your orator further charges, that before the said cause was brought on to a hearing, the said B. departed this hfe, leaving a last will and testament in writing, duly executed in his lifetime, of which he appointed E., of said county, executor; who, since the death of the said B., has duly proved the same and obtained letters testamentary thereon, and has possessed himself of assets of his testator sufficient to answer the demands of your orator against the said testator, as stated in his afore- said original bill. And your orator is advised that the said suit having abated FORMS OF BILLS IN EQUITY. 555 by the death of the said B., he is entitled to have the same re- vived against the said E., as executor aforesaid, and restored to the condition in which it was at the death of the said B. To the end, therefore, that the said E. may answer the premises, and may either admit assets of his testator in his hands to satisfy your orator's aforesaid demand, or set forth a full and particular accormt of the personal estate of his testator which has come to his hands, and of the application thereof. And that the said suit may be revived against the said E., and be restored to the same condition that it was in at the time of the death of the said B. And in case the said E. shall not ad- mit assets of his testator in his hands to satisfy your orator's aforesaid demand, that an account may be taken, under the direc- tion of this court, of the estate and effects of the said testator, received by or for the use of the said E. as executor aforesaid, and of the application thereof : May it please your honor to grant unto your orator the writ of subpoena against the said E., commanding him to appear in this court to answer the premises, and to show cause, if any he has, why this suit ought- not to be revived against him as prayed, and as in duty, &c. , SoVrfor CompVt. IfnTE. — The bill of reviuor ought to pray that the exemtor may answer the ong- inal bill, as well as the bill of revivor, where the defendant dic-i witho^it answering the original bVl. Where one of several defendants dies, it is only necessary to file the hill of revivor against his representative. Bnt where one of several complainants dies, the bill of revivor mtist be filed against all the defendants. By making slight altera- tions, the foregoing form may be adapted to all these cases. When a decree becomes abated after it has been partly executed, a bill of revivor is proper ; and any decree, even where no subsequent proceedings have taken place, may be revived by mjtch bill. But it is more usual in the latter- case, to file a petition for a subpoena acire facias, as a more effectual remedy, according to the following form : Petition in tlie natnre of a Bill ©f Etevivor t© revive a Decree. To the, c&o. The petition of A., of county, executor of B., humbly shows that by a decree of this court, dated on or about the day of , and passed in a cause wherein the said B. was complainant, and a certain C, of county aforesaid was de- fendant, it was amongst other things adjudged, ordered and de- creed, that the said 0. forthwith pay or bring into this court, to be paid unto the said B., the sum of , with interest from the day of , until paid ^or brought into court as aforesaid, together with his costs of said suit, to be taxed by the .556 FORMS OF BILLS IN EQUITY. register, as oy the said decree now resmaining in this court -will more fiilly appear. And your petitioner further charges that before the pay- ment of the sum of money decreed to be paid as aforesaid, and before any proceeding had been taken in execution of said de- cree, the said B. departed this life, whereby said decree became abated. That the said B., in his lifetime, duly made and published his last will and testament in writing, and made your petitioner the executor thereof, who has, since the death of his testator, proved the same, and obtained letters testamentary thereon, and he is advised that he is entitled to have the said decree revived against the said 0. He therefore prays that your honor wiU grant him a writ of subpmna sdre faeias against the said 0., commanding him to appear in this court and show cause, if any he has, why the aforesaid decree ought not to be revived as prayed, and as, &c. Bin to Perpetuate Testimony. BY A DEVISEE IN FEE IN POSSESSION TO PEEPETUATE THE TESTI- MONY OF THE WITNESSES TO A WILL. To, C&C. Humbly complaining showeth unto your honors your orator, T. H., of, &c., brother of the half blood and devisee named in the last will and testament of F. B., of, &c., deceased, that the said F. E. was in his lifetime, and at the time of his death, seized or entitled to him and his heirs of or to divers freehold estates, situate in the several places hereinafter mentioned, and divers other places, of considerable value in the whole, and being seized or entitled, and being of sound and disposing mind, memory, and understanding, ne made his last will and testament in writing, bearing date, &c., which was duly ex- ecuted by him in the presence of, and attested by, three credible persons whose names are [here insert the nam.es of the subscrib- ing witnesses'], and which will, with the attestation thereof, is in the following words (that is to say) {stating the will verlatim].. And your orator further shov^eth that the said F. B. afterwards, and on or about , departed this life without revoking or altering his said will, or any part thereof, whereupon your orator, by virtue of the said will, became entitled in fee simple to all his said freehold estates, subject as to such part thereof as aforesaid, to the payment of so much of the funeral expenses, debts and legacies of the said F. B., as his personal estate may FORMS OF BILLS IN EQUITY. 557 fall short to pay ; and your orator accordingly, soon after the death of the said F. E., entered upon and took possession of all the said estates, and is now in possession and receipt of the rents and profits thereof, and in the possession and enjoyment thereof. And your orator well hoped that he and his heirs and assigns would have been permitted to enjoy the same quietly without any interruption from any person whomsoever. But now so it is, may it please your honors, that K. H., of, &c., who claims to be cousin and heir at law of the said F. R., alleging that he is the only or oldest son of M. H., and M., his wife, both deceased (which said M. H., as is also alleged, was the only brother of the father of the said F. R. who left any issue), combining and confederating with divers persons unknown to your orator, pretends that the said F. R. did not make such last will and testament in writing as aforesaid, or that he was not of sound and disposing mind and memory at the making thereof, or that the same was not executed in such manner as by law is required for devising real estates ; and therefore he insists that your orator hath not any right or title to the real estates late of the said F. R., or any part thereof, but that on his death the same descended unto him, the said R. H., as his heir at law. Whereas your orator charges the contrary of such pretenses to be true. But, nevertheless the said R. H. refuses to contest the validity of the said will during the lifetime of the subscribing witnesses thereto, and he threatens that he will hereafter dispute the validity of the said wiU when all the subscribing witnesses thereto are dead, whereby your orator and his heirs and assigns will be deprived of the benefit of their testimony. All which pretenses of the said confederate are contrary to equity and good conscience, and tend to injure and oppress your orator in the ^premises. In consideration whereof, and forasmuch as your orator cannot perpetuate the testimony of the subscribing wit- nesses to the said will without the assistance of a court of equity. To the end, therefore, that the said R. H. may show, if he can, why your orator should not have the testimony of the said witnesses perpetuated ; And that your orator may be at liberty to examine his wit- nesses with respect to the execution and attestation of the said will, and sanity of mind of the said F. R. at the making the same, so that their testimony may be perpetuated and preserved : May it please, &c. [Prayer for subpoena against B. B..'\ 55S FORMS OF BILLS IN EQUITY. Sill to take Testimony De Bene E!8§e. To the Honorahle the Judges, c&c. Humbly complaining showeth unto your honors your orator, A. B., of , that an action at law is now pending in the court of , wherein your orator is plaintiff, and C. D., of , is defendant [or the reverse'], touching and concerning Ihere describe the cause of action], which has not yet been com- mitted to a Jury ; and your orator further shows, that one E. F., of , of the age oi seventy years or upwards [or a person of infirm health, or laboring under a certain disease, or who is about to depart out of the jurisdiction of the court, or who is the sole witness to the fact of ], so that his testimony is in danger of being lost to your orator at the said trial, by reason of death [or absence], is a material and important witness for your orator, inasmuch as the said E. F. is acquainted with the fact [here state the expected evidence o_f the witness'], {or, inas- much as the said E. F. is the sole person who has knowledge of the fact of ), wliich fact it is material and necessary for your orator to prove on the trial of the said action at law. In consideration whereof, and forasmuch as your orator cannot be secure of having the testimony of the said witness at the trial of the said action, without the aid of a court of equity, in causing the same to be taken de iene esse, and that your orator may be at liberty to have the same so taken, under a commis- sion, or commissions, issuing out of this honorable court. May it please your honors to grant unto your orator a writ of suhpmna to be directed to. the said C. D., thereby commanding him, at a certain day, and under pain to be therein limited, personally to appear before your honors in this honorable court, and then and there fuU, true, direct, and perfect answer make to all and > singular the premises, and to show cause, if any he can, why your orator should not have the testimony of the said witness taken de bene esse. Note. — The above Kll should le accompanied by an affidavit of the cir- cumstances under which the evidence is in danger of being lost. Bill of Kevie'w for Errors of Law apparent on the Decree itself. To, <&c. Humbly complaining showeth unto your honors the plaintiff, A. B., of , that on the day of , W. T., of , the defendant hereinafter named, exhibited his bill of complaint in this honorable court against the plaintiff, and FORMS OF BILLS IN EQUITY. 559 thereby set forth that {here insert the original UlT]. And the plaintiff, being served with the proper process for tliat purpose, appeared and put in his answer to the said bill, to the effect fol- lowing: [here recite the substance of the answer]. And the said W. T. replied to the said answer, and issue having been joined, and witnesses examined, and proofs closed [or, the said* W. T, joined issue on the answer, and], the said cause was set down to be heard, and was heard, before your honors, on the day of , when a decree was pronounced, which was afterwards passed and entered, in which it was set forth and recited that it was at the hearing, on the plaintiff's behalf, insisted ihat the plaintiff had by his answer set forth that [Kere insert the recital and decree]. And the said decree has since, and on or about the day of , been duly signed and enrolled, which said decree, the plaintiff insists, is erroneous, and - ought to be reviewed, reversed, and set aside for many apparent errors and imperfections, inasmuch as it appears by the plaintiff's answer, set forth in the body of said decree [here insert the apparent errors]. And no proof being made thereof, no decree ought to have been made or grounded thereon, but the said bill ought to have been dismissed for the reasons aforesaid. In consideration whereof, and inasmuch as such errors and imperfections appear in the body of the said decree, and there is no proof on which to ground any decree to set aside the said rent-charge, the plaintiff hopes that the said decree will be reviewed, reversed, and set aside, and no further proceedings had thereon. To the end, therefore, that the said "W". T., &c. ; and that, for the reasons and under the circumstances aforesaid, the said decree may be reviewed, reversed, and set aside, and no further proceedings taken thereon, and the plaintiff pei'mitted to remain in the undisturbed possession and enjoyment of the said rent- charge : May it please, &c. ' [Pray for subpoena in usual form,.] Bill of Revie^r on DI§covery of IVe^r Matter. Humbly complaining showeth unto your honors the plaint- iff, A. B., of , that on or about , C. D., of _ , the defendant hereinafter named, exhibited his bill of complaint in this honorable court against the plaintiff, and thereby set forth that [here insert the original bill]. And the plaintiff", being duly served with process for that purpose, appeared and put in his answer to the said bill, to the effect following [here state the substance of the answer]. And the said C. D. replied 560 FORMS OF B;LLS IN EQUITY. to the said answer, and issue having been joined, and witnesses examined, and the proofs closed [or, the said 0. D. joined issue on the said answer, and], the said canse was set ^own to he heard, and was heard, before your honors, on the day of , when a decree was pronounced, whereby your honors decreed that the plaintiff's title to the premises was valid and effectual, after which the said 0. D. petitioned your honors for a rehearing, and the said cause was accordingly reheard, and a decree of reversal made by your honors, on the ground of the said C. D. being the heir at law of the said E, F., deceased, and which said decree of reversal was afterwards duly signed and enrolled, as by the said decree and other proceedings now re- maining filed as of record in this honorable court, reference being thereto had, wiU appear. And the plaintiff showeth unto your honors, by leave of this court first had and obtained for that purpose, by way of supplement, that since the signing of. said decree of reversal the plaintiff has discovered, as the fact is, that the said E. F. was in his lifetime seized in his demesne as of fee, of and in the hereditaments and premises in question in the said cause, and that the said E. F., while so seized, and when of sound mind, duly made and published his last will and testament in writing, bearing date on the day of < , which was executed by him and attested according to law, and thereby gave and devised unto the said I. W., his heirs and as- signs, forever, to and for his and their own absolute use and benefit, the said hereditaments and premises' in question in the said cause, to which the plaintiff claims to be entitled as pur- chaser thereof from the said I. "W". And the plaintiff further showeth unto your honors, that since the said decree of reversal was so made, signed and enrolled as aforesaid, and on or about the day of , the said 0. D. departed this life in- testate, leaving G. H., of , the defendant hereinafter named, his heir at law, who, as such, clairfis to be entitled to the said hereditaments and premises, in exclusion of the plaintiff. And the plaintiff is advised and insists that, under the afore- said circumstances, the last-mentioned decree, in consequence of the discovery of such new matter as aforesaid, ought to be re- viewed and reversed ; and that the first decree, declaring the plaintiff entitled to the said hereditaments and premises,' should stand, and be established and confirmed; and for effectuating the same, the said several proceedings which became abated by the death of the said C. D., should stand and be revived against the said G. H. as his heir at law. To the end, therefore, &c. And that the said suit may be revived against the said G. H., or that he may show good cause to the contrary, and that the said last decree, and aU proceed- FORMS OF BILLS IN EQUITY. 561 ings thereon may be reviewed and reversed, and that the said first-mentioned decree may stand, and be established and con- firmed, and be added to, by the Baid will being declared a good and effectual devise of such hereditaments and pi-emises as aforesaid ; and that the said G. H. may be decreed to put the plaintiff in possession of the said hereditaments and premises, and in the same situation, in every respect, as far as circum- stances will now permit, as the plaintiff would have been in case said last decree had never been pronounced and executed ; and that the plaintiff may have such other, &c. May it please, &c. [Pray sulpoma to revive and answer against the said G, 27.] Bill in the nature of a Bill of Review^ Tvliere a Party i§ Bound by a JOecree. SUPPLEMENTAL BILL EST THE NATURE OF A BILL OF EEVIEW. [Commence as in the preceding Mll.'\ Whereby your honors decreed that, &c. [state the effert of the decree'\, as by the said proceedings and decree, now remain- ing as of record in this honorable court, reference being there- unto had, will appear. And the plaintiff further shows unto your honors [state the supplemental matter hy leave of the court, i&c.'], that the said decree has never hitherto been signed and enrolled, and, in consequence of the discovery of such new mat- ters as aforesaid, the plaintiff is entitled, as he is advised, to have the said cause heard thereon by your honors, when reheard on the said original bill, a petition for that purpose having been presented by the plaintiff, and acceeded to by your honors, in the same manner as if such new matter had been put in issue in the said original suit. To the end, therefore, &c. [Interrogate as to supplemental matters.'] And that the said will may be established and declared a valid and effectual devise of the said hereditaments and prem- ises, and that the said cause may be heard on such new and supplemental matter as aforesaid, at the same time that it is re- heard on the said original bill ; and that the plaintiff may have such further and other relief as, under the circumstances herein- before particularly mentioned to your honors, shall seem meet, and the nature of his case, as it hereby appears, may require. ^ May it please, &c. 39 562 FORMS OF BILLS IN EQUITY. To the, <&G. Bill of Interpleader. In the Court, &c. In Equity. Complaining shows unto your honor your orator, I. E., of the city of JSTew Tork, merchant, that, on or about the day of , 1821, your orator purchased of D. T., a defendant hereafter named, a certain quantity of coal, then being on board a vessel called the , amounting to cauldrons, for which your orator agreed to pay the said D. T. the sum of $ , and to give his promissory note for such amount, pay- able in days from the said day of , 1821 ; that such coal was delivered to your orator, and he paid the ac- count of such consideration money, $ And your orator further shows, that, some time afterwards, and about the .day of , 1821, F. & S. Schermerhorn, of the city of ]N"ew Tork, merchants, caused an attachment to be sued out against one "William Williams, as an absent debtor, and that aftei-wards L. F. and D. B. caused another attachment to be sued out against the said "W. "W. as an absconding debtor ; that warrants were issued in the usual form to "W. B., the sheriff of the county of ITew York, who gave notice to your orator not to pay over to any person except him, the said sheriff, any prop- erty or money of or belonging-to the said W. W. ; and further, that the said "W. B., the sheriff aforesaid, and G. D., the at- torney of the said F. & S. Schermerhorn, and the said F. & B., apprised your orator that the coal so purchased by your orator, as aforesaid, of the said D. T., was the property of the said W. W., for whom the said D. T. was only an agent or factor, and insisting and giving notice to your orator that he would be held liable if he paid the residue of such money, or any part thereof, to the said D. T. And your orator further shows unto your honor, that he made application to the said F. & S. S., and F. & B., for leave to pay over such money to the said D. T., without subjecting himself to any responsibihty therefor to them, the said F. & S. S., and F. &, B., which they positively refused to do. And your orator also applied to the said D. T. to reheve or secure your orator against the effect or operation of such attachments, and from any further responsibility in the premises ; but he, the said D. T., has wholly refused to do so, and has commenced an action at law in the Supreme Court of this State to recover the balance of the said money agreed upon as the price of said coal. And your orator further shows, that he has always been willing to pay the balance of such money to such person or per- sons as should be lawfully entitled to receive the same, and to FORMS OF BILLS IN EQUITY. 563 1 M'hom he could pay the same with safety ; and he hereby offers to pay the same into this court. And yom- oi-ator further shows, that he doth not in any re- spect collude with either the said D. T., or F. & S. S., or F. & B., touching the matters in question in this cause ; that he has not exhibited this bill at the request of such defendants, or any or either of them, and that he has not been indemnified by such defendants, or any or either of them, but merely of his own free wiU, and to avoid being molested and injured, touching the matters contained in such bill. Wherefore, and as your orator can only have adequate relief in this court, to the end that the said defendants may interplead and settle their rights to the said sum of money, and that your orator may be at liberty to pay the same into this court ; and that the said D. T. may be enjoined and restrained from further proceeding in the suit at law, so, as aforesaid, commenced by him against your orator ; and that the said F. & S. S., and F. B., and D. T., may be en- joined and restrained from commencing any suit against your orator touching the premises ; and that your orator, upon pay- ment into court of such amoimt, and procuring the said defend- ants to intei-plead according to the course of this court, may be decreed to be discharged from all liability to such defendants in premises, and may have all his costs therein : May it please, &c. A Cross-Bill. Humbly complaining, showeth unto your honors, your ora- tor, J. H., of (administrator of all and singular the goods, chattels and credits, which were of R. H., late of , de- ceased, at the time of his death, left unadministered by M. H., late of , in her lifetime, now deceased, and which said M. PL, in her lifetime, and at the time of her death, was ad- ministratrix of the goods, chattels, rights and credits, which were of the said E. H., deceased, at the time of his death), that J. M., late of , deceased, when in sound mind, duly made his last will and testament in writing, and thereby, after bequeathing several pecuniary legacies, gave the residue of his personal estate and effects (subject to the payment of his debts) to his daughter H., then an infant under the age of twenty-one years, but now the wife of J. C, of (and which said J. C. and 1-1., his wife, are two of the defendants hereinafter named), and thereby appointed E. P., of (another defendant here- inafter named), and the said E. H., executors of his said will. 564 FORMS OF BILLS IN EQUITY. as by the probate copy of sucli will, reference being thereto had, will more fully appear. And your orator further showeth unto your honors, that the said testator died on or about the day of without altering or revoking his said will, leaving his said daughter H. him surviving ; and upon or soon after his decease, the said E. P. and E. H., as such executors, as aforesaid, duly proved the said will in the proper court, and the said R. P., who principally acted in the execution of said wiU (the said E. H. having only interfered for the sake of con- formity), under aind by such probate, possessed himself of a con- siderable part of the said testator's personal estate and effects. And your orator further showeth unto your honors, that the said R. H. departed this life on or about ; and shortly after his decease, letters of administration were duly granted to the said M. H., his wife, who died on or about ; and after her decease, such letters of administration of the unad- ministered personal estate of the said R. H., deceased, as afore- said, were duly granted to your orator by the proper court ; as by such letters of administration, reference being thereto had, will fully appear. And your orator further showeth unto your honors, that the said R. H., previously to his death, accounted for and paid to the said R. P., as such co-executor as aforesaid, all such part of the personal estate of the said testator as had been received by him, R. H., as such executor, as aforesaid, and no pai't of such personal estate remained in the hands of the said R. H. at the time of his decease, previously whereto the said R. H. resided in the country, where his house was robbed, and all papers , (relative to his acts as such executor as aforesaid, and for which he had so accounted as hereinbefore mentioned) were stolen, and have never hitherto been recovered. And your orator fur- ther showeth unto your honors, that thesaid J. 0. and H., his wife, duly intermarried previously to the said H. attaining the age of twenty-one years, which she has since done, and after that period the said R. P. duly accounted for the residue of the said testator's personal estate with the said J. 0. (who, in right of the said H., his wife,, became entitled to receive the same), and thereupon obtained a general release from the said J. C. and H., his wife, of all demands, in respect thereof, as by the said release, reference being thereto had, will appear. And your orator hoped, under the circumstances aforesaid, he would not have been called upon for an account of the administration of the said testator's personal estate. But now, so it is, &c., the said J. 0. and H., his wife, com- bining and confederating with the. said R. P., and divers other persons at present unknown to your orator, whose names, when FORMS OF BILLS IN EQUITY. 565 discovered, your orator prays he may be at liberty to insert herein, with apt words to charge them as parties defendants hereto, and contriving how to wrong and injure your orator in the premises, have lately filed their bill in this honorable court against your orator, as such representative of the said R. H., de- ceased, as aforesaid, for an account of the personal estate of the said testator, J. M., received by the said E. H., deceased, in his lifetime, as such executor as aforesaid, thereby praying that your orator may be decreed to pay the said J. C, in right of the said H., his wife, what upon such account shall appear to be due to the said J. C, in right of the said H., his wife, out of the assets of the said E. H. ; and to which said bill they have made the said E. P. a defendant, without praying any account or relief against him. And they pretend that there are various receipts and accounts \_par-tlcularlze those charged in the original lill] of the said E. H., deceased, as such executor aforesaid, as to the personal estate of the said testator, which remained unac- counted for by the said E. H. at his decease, and which ought to be paid by your orator. "Whereas your orator charges the con- trary thereof to be true \neg-iiive sj)ecifi:aUy the pretended re- ceipts and accoimts'], and that an account was stated, and a settlement of accounts took place between the said E. H. pre- viously to his death, and the said E. P., and that an account has hkewise been stated and settled by and between the said E. P., as such surviving executor as aforesaid, and the said J. C, in right of the said H., his wife, since she attained the age of twenty-one years as aforesaid ; and that no demand was ever made on the personal estate of the said E. H., in respect of his accounts, until lately, when the loss of such papers as aforesaid was discovered, and of which your orator charges an undue ad- vantage is intended and attempted to be taken ; and your orator also charges that the said E. P. abets the said J. C. aad H., his wife, in their proceedings, and refuses to indemnify the personal estate of the said E. H., in respect of his accounts in the execu- tion of the will of the said testator, J. M., so accounted for by him, and settled with the said E. P. as aforesaid ; and the said E. P. also refuses to inform your orator what he knows of the matters aforesaid, or any of "them, and also denies such state- ments as have been made by him relative thereto. To the end, therefore, ttiat the said J. C. and PI., his wife, and the said E. P. and the rest of the confederates, when discovered, may upon their several and respective corporal oaths, full, true, direct, and perfect answer make to all and singular the matters hereinbefore stated and charged, as fully and particularly as if the same were hereinafter repeated, and they thereunto distinctly interrogated, and that not only as to the best of their respective knowledge 566 FORMS OF BILLS IN EQUITY. ■ and remembrance, but also as to the best of their several and respective information and belief, and more especially that they may answer and set forth whether, &c. [here follow the inter- rogatories to l)e answered.'] And that the said J. 0. and H., his wife, may be decreed to execute to your orator, as such administrator of the goods, chat- tels, and credits of the said K. H., deceased, left unadministered by the said M. H., also deceased, at the time of her death, a general release of all claims and demands upon such adminis- tered estate and effects of the said E. H., deceased, as aforesaid, in respect of all the accounts of the said R. H., in the execution of, the will of the said testator, J. M. ; or that an account may be taken of the said personal estate of the said testator, J. M., received by the said R. H., and of his application thereof; your orator being willing and hereby offering to pay what, if any- thing, shall appear to be due on the balance of such account ; and that the said R. P. may be decreed to indenmify the estate of the said R. H. and your orator, as such administrator there- of as aforesaid, in respect to such part thereof as the said R. P. paid to, or to the order, or for the use of the said R. P. ; or otherwise to account for and pay the same to your orator. And that the said J. C. and H., his wife, may be decreed to pay to your orator his costs of this suit ; and that your orator may have such further and other relief in the premises as the nature of his case may require, and to your honors may seem meet : May it please your honors to grant unto yoUr orator the most gracious writ of subpoena of the State of (or of the United States of America), to be directed to the said J. C. and H., his wife, and the said R. P. and the rest of the con- federates, when discovered, thereby commanding them and every of them at a certain day, and under a certain pain therein to be specified, personally to be and appear before your honors in this honorable court, and then and there to answer all and singular the premises, and to stand to, perform, and abide such order and decree therein as to your honors may seem meet. And your orator shall ever pray. Solicitor for Complainant. FORMS OF BILLS IN EQUITY. 567 Bill to Suspend a Uccree. TO ENLiEGE THE TIME OF PEEFOEMAls^CE OF A DECREE, ON THE GEOtTND OF INEVITABLE NECESSITY WHICH PEEVENTED A PAETT FEOil COMPLYING WITH THE STEICT TEEMS OF IT. Humbly complaining, showeth unto your honors the plaintiff, A. B., of, etc., that the plaintiff, on the day of , borrowed the sum of from C. D., of, &c., the defendant hereinafter named, and in order to secure to the said C. D. the repayment thereof, with legal interest, the plaintiff, by an inden- ture bearing date the day of [set forth the mortgage], bargained, sold and conveyed unto the said'C. D. the real estate named and described in the said indenture, subject to redemp- tion, on payment by the plaintiff 6f the said sum of , and interest as therein mentioned, as by the said indenture, refer- ence being thereto had, will more fully appear. And the plaintiff further showeth that the said C. D., on or about , exhib- ited his bill of complaint to this honorable court against the plaintiff, for payment of what was then due to him for principal and interest on the said security, by a short day to be appointed for tliat purpose, or that the plaintiff might be absolutely de- barred and foreclosed from all right and equity of redemption in the said mortgaged premises ; and the plaintiff having put in his answer thereto, and submitted to pay what should appear to be due from him, the said cause came on to be heard before this honorable court on or about , when it was referred to E.. v., one of the masters of this honorable court, to take an ac- count of what was so due from the plaintiff to the said C. D. as aforesaid, and the plaintiff was ordered to pay the same on the day of , or be absolutely foreclosed of all right and equity of redemption in the said mortgaged premises, as by the said proceedings now remaining as of record in this honor- able court, reference being thereunto had, will appear. And the plaintiff further showeth unto your honors, that the plaintiff was duly prepared, and was ready to pay what should be re- ported to be due from him ; but, before the said master made his report, the plaintiff was sent in great haste, by the_ com- mands of his majesty, ambassador to the court of Paris, on special and weiglity affairs of State, which admitted of no delay ; and the plaintiff was therefore unable to make any pro- vision for the payment of what should be so found due from him as aforesaid. And the plaintiff further showeth unto your honors, that the said master, during the plaintiff's absence, made his report, whereby he found that the sum of was due to the said 0. D. for principal and interest from the plaintiff, but no further proceedings have since been taken in the said cause. , 568 FORMS OF BILLS IN EQUITY, And the plaintiff being ready and willing to pay the said sum of to the said C. D., and all subsequent interest thereon, is advised, that on payment thereof, he is entitled, under the circumstances aforesaid, to have so much of the said decree as relates to the foreclosure of the plaintiffs right and equity of redemption in the said mortgaged premises, suspended, and on payment thereof, to have a reconveyance of the said mortgaged premises from the said C. D., &c. To the end, therefore, &c. And that the subsequent Interest on the said sum of so reported to be due from the plaintiff as aforesaid to the present time, may be computed by the direction of this honorable court, , and on the payment of the said sum of and interest as aforesaid, the said decree of foreclosure may be suspended, and the said C. D. directed, at the expense of the plaintiff, to recon- vey the said mortgaged premises to the plaintiff, or as he shall appoint, freed from and absolutely discharged from the said mortgage \And for further relief^ May it please, &c. Kill to §et aside a Decree obtained by Fraud. BILL TO SET ASIDE A DECEBE OF F0EECL08UEE FEAUDULENTLT OBTAINED, AND FOE EEDEMPTION. Humbly complainins;, showeth unto your honors the plaintiff, ]sr. B., of, &c., that T. JB., of, &c., deceased, the plaintiff's late father, during his life, and on or about the day of , •was seized in his demesne, as of fee, of and in the real estate hereinafter particularly described; and by indenture of that date, made between the said T. B., of the one part, and C D., of, &c., the defendant hereinafter named, of the other part, the said T. B., in consideration of $ , bargained, sold, and con- veyed unto the said C. D., his heirs and assigns, all, &c. [describe the mortgaged premises], subject to redemption on payment of the said principal money and lawful interest at the time therein mentioned, and long since past ; as by said indenture, reference being thereto had, will more fully appear. And the plaintiff further shows that the said T. B. departed this life on or about , leaving the plaintiff his heir at law and only child, then an infant under twenty-one years of age ; that is to say, of the age of seven years or thereabouts, him surviving. And the plaintiff further showeth, that during the plaintiff's minority, on or about , the said C. D. filed his bill of complaint in this honorable court against the plaintiff for a foreclosure of the plaintiff's right and equity of redemption in the said mortgaged premises ; but the plaintiff was not represented in such bill to be an infant ; and the said C. D, caused and procured one L. M., FORMS OF BILLS IN EQUITY. 569 since deceased, who acted in the management of the affairs of the plaintiff's said father, to put in an answer in the name of the plaintiff, and without ever acquainting the plaintiff, or any of his friends or relations therewith ; in which said answer a much greater sum was stated to be due from the plaintiff on the said mortgage security to the said C. D., than in fact was really owing to him, and for which it was untruly stated that the mort- gaged premises were an insufficient security. And in conse- quence of such answer being put in, the said 0. D. afterwards, in conjunction with the said L. M., on or about , obtained an absolute decree of foreclosure against the plaintiff, which the plaintiff has only lately discovered, and of which the plaintiff had no notice, and in which said decree no day is given to the plaintiff, who was an infant when the same was pronounced, to show cause against it when he came of age ; as by the said pro- ceedings, now remaining as of record in this honorable court, reference being thereto had, will more fully appear. And the plaintiff further shows that the plaintiff, on the day of last attained the age of twenty-one years, and shortly afterwards, having discovered that such transactions had taken place during his minority, as aforesaid, by himself and his agents, represented the same to the said C. D., and requested him to deliver up pos- session of the said mortgaged premises to the plaintiff, on being paid the principal money and interest, if any, actually and fairly due thereon, which the plaintiff offered, and has at all times been ready to pay, and which would have been paid by the per- sonal representatives of the said T. B. out of his personal assets during the plaintiff's minority, had aiiy application been made for that purpose. And the plaintiff hoped that the said 0. D. would not have insisted on the said decree of foreclosure, so fraudulently obtained as aforesaid, but would have permitted the plaintiff to redeem the said mortgaged premises, as he ought to have done. But now so it is, the said C. D., &c., pretends that the said decree of foreclosure was fairly and properly ob- tained, and that a day was therein given to the plaintiff, when of age, to show cause against the same, and that the plaintiff has iieglected to do so, and that the plaintiff is neither entitled to redeem, or to travel into the said accounts ; whereas, the the plaintiff charges the contrary thereof to bg true, and that the plaintiff only attained the age of twenty-one years on the said day of , and that he has since discovered the matters aforesaid by searching in the proper offices of this hon- orable court ; and the plaintiff expressly charges that, under the circumstances aforesaid, the said decree, so fraudulently obtained as hereinbefore mentioned, ought to be set aside, and the plaintiff ought not to be precluded thereby, or in any other manner, from 570 FORMS OF BILLS IN EQUITY. redeeming the said mortgaged premises of which the said 0. D. has possessed laimself by such means as aforesaid. All of which actings and doings, &c. In consideration whereof, &c. To the end, therefore, &c. ; and that the said decree of foreclosure may, for the reasons and under the circumstances aforesaid, be set aside by this honorable court, and declared to be fraudulent and void ; and that an account may be taken of what, if anything, is now due to the said C. D. for principal and interest on the said mortgage ; and that an account may be also taken of the rents and profits of the said mortgaged premises, which have, or with- out his willful default might have been, received by or on behalf of the said C. D., and if the same shall appear to have been more than the principal and interest due on the said mortgage, then that the residue thereof may be paid over to the plaintiff, and that the plaintiff may be at liberty to redeem the said mort- gaged premises on payment of the principal and interest, if any, remaining due on said security ; and that the said 0. D. may be decreed, on being paid such principal money and interest, to deliver, up possession of such mortgaged premises, free from all incumbrances, to the plaiAtiff, or as he shall appoint, and to deliver up all title-deeds and writings relating thereto. {Gen- eral relief. 1 May it please, &c. {Prayer for subposna against C. D., t&G.] BHl to Carry a Mecree into Execntion. WHEEE A DECEEB OF PAETITION HAS BEEN OBTAnSTED AND NOT EXECUTED. Humbly complaining, showeth unto your honors the plaint- iff, A. B., of, &c., that the plaintiff, on or about the day of , filed his bill of complaint in this honorable court against E. B., stating [set out substance of a Mil of partition], and praying [set out prayer verhatirn]. And the plaintiff further showeth, that due process having been served upon the said E. B., he appeared and put in his answer to said bill, to which answer a replication was filed [or, on which answer issue was joined]. And the said cause being duly at issue, the same came on to be heard, and was heard before your honors, on the day of , when your honors were pleased tc order and decree that a commission should issue to certain com- missioners to be therein named, to make partition of the estate in question, who were to take- depositions of witnesses to be examined by them, in writing, and return the same with the said commission ; and that the said estate was to be divided and separated, and one-third part thereof set out in severalty and FORMS OF BILLS IN EQUITY. 571 declared to belong to the said E. B. and his heirs ; and the re- maininff two-thirds thereof declared to belong absolutely to the plaintiff, to be held in severalty by him ; and the respective parties were decreed to convey their several shares to each other, to hold in severalty according to their respective undivided shares thereof ; and that it should be referred to H. K., one of the masters of this court, to settle the conveyances, in case the parties differed about the same, as by the said proceedings and decree now remaining as of record in this honorable court, reference being thereto had, will more fully appear. And the plaintiff further showeth unto your honors, that the commission awarded by the said decree never issued, on account of the said E. B. going abroad, and being until lately out of the jurisdiction of this honorable court ; but the said E. B. having since returned, and the incovenience mentioned in the plaintiff's former bill \for partition] still subsisting, the plaintiff is desirous of having the said decree forthwith carried into execution, but from the great length of time which has elapsed, and the refusal of the said E. B. to concur therein, the plaintiff is advised the same cannot be done without the assistance of this honorable court. To the end therefore, &c., and that the said decree may be directed to be forthwith carried sp'eciiically into execution, and the said E. B. ordered to do and concur in all necessary acts for that purpose : May it please, &c. \_Prayer for subpoena against E. B.] Bill to restrain Infringement of Patent Riglits. nn.T. FOE INJUNCTION TO EESTEAIN THE INFEINGEMENT OF A PATENT EIGHT, SETTING OUT EECOVEEIES AT LAW AND EST EQUITY. To the Judges of the Circuit Court of the United States for the District of Massachusetts. In Equitt. E. H., jr., of B., in the State of New York, and a citizen of the State of New York, brings this bill against C. W., of B., m the State of Massachusetts. t, t, v • And thereupon your orator complains and says, that he bemg the original and first inventor of a new and useful improvement in sewing machines, fully described in the letters patent issued to him therefor, as hereinafter stated, and not known or used by others before his invention thereof, and not at the time ot his application for letters patent therefor in pubhc use or on sale, with his consent or allowance as the inventor ; and being a 572 FORMS OF BILLS IN EQUITY. citizen of the United States, and having made due application, and having fully and in all respects complied with all the re- quisitions of the law in that behalf, did obtain letters patent therefor, issued in due form of law to him in the name of the United States, and under the seal of the Patent Office of the United States, and signed by E". P. T., acting Secretary of State, and countersigned by H. H. S., acting Commissioner of Patents, bearing date the tenth day of September, in the year of our Lord eighteen hundred and forty-six; whereby was granted and secured, according to law, to your orator, his heirs, adminis- trators, or assigns, for the term of fourteen years from said date, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement in sewing machines therein specified and claimed, as in and by said letters patent, or a certified copy thereof, here in court to be produced, wiU more fully appear. And your orator further shows unto your honors, that cer- tain assignments of certain rights in said patent have been made, and duly recorded in the Patent Omce of the United States, whereby your orator, prior to the infringements herein complained of, became and now is the sole owner of said patent, as in and by said assignments, or certified copies thereof, here in court to be produced, will more f uUy appear. And your orator further shows unto your honors, that the said improvement in sewing machines patented to him as afore- said, has hitherto been in the exclusive possession of your orator or his grantees, and has hitherto been and stiU is of great value and profit to your orator ; and that a license fee or patent rent, under his said patent, has hitherto been and stiU is paid to your orator for the largest portion of all the sewing machines manu- factured and sold in the United States ; yet the said defendant, well knowing the premises, but contriving how to injure your orator, and without his consent or allowance, and without right, and in violation of said letters patent and your orator's exclu- sive rights, secured to him as aforesaid, has made, used, or vended, and still does make, use, or vend to others to be used in said district, and in other parts of the United States, a large number of sewing machines, but how many your orator cannot state, but prays that the defendant may discover and set forth each embracing substantially the improvement in sewing ma- chines, or a material part thereof, patented to your orator as aforesaid ; and thereby the said defendant has infringed, and stiU does infringe, and cause your orator to fear that in future he will infringe upon the exclusive rights and privileges in- tended to be secured to your orator, in and by his said letters patent. FORMS OF BILLS IN EQUITY. 573 ere- And yoTir orator further shows unto your honors, that h^...- tofore the validity of his patent has been uniformly affirmed ifter severe and repeated contestation, namely, by a verdict md judgment thereon at law, in 1852 ; and by six final decrees in equity in the Circuit Court of the United States for the Dis- trict of Massachusetts ; and by one final decree in equity in the Circuit Court of the United States for the Southern District of New York, aU obtained in favor of said patent prior to Auo'ust 1854. -^ r o , And your orator further shows unto your honors, that the ;ewing_ machines made and sold by the defendant, as herein 3omplained of, are in their essential parts and character, sub- stantially like the sewing machines against which injunctions were obtained in the suits aforesaid by your orator, or by your jrator and his then co-owner of said patent. And your orator has .requested the said defendant to desist from making, using, or vending to others to be used, the said sewing machines, embracing the said improvement patented to ^our orator, and to account with and pay over to your orator the profits made by said defendant by reason of the unlawful mak- ng, using, or vending of said sewing mac^iines embracing said patented improvement of your orator. But now, so it is, may t please your honors, that said defendant has combined and ;onfederated with other persons to your orator unknown, but rhom, when discovered, your orator prays leave to make de- "endants hereto, to resist and destroy the exclusive rights and privileges secured to your orator as aforesaid, and to make, use, md vend said improvement in sewing machines patented to rour orator as aforesaid, without the license of your orator, and n violation of his just rights in the premises, aU of which is iontrary to equity and good conscience. To the end, therefore, that the said defendant may, if he jan, show why your orator should not have the relief herein )rayed, and may under oath, and according to his best and ut- aost knowledge, remembrance, information, or belief, full, true, lirect, and perfect answer make to all and singular the jjrem- 868, and more especially may answer, discover, and set forth, (whether during any and what period of time, and where he has Qade, used, and vended to others to be used, for any and what onsideration, any, and how many sewing machines, and whether ir not the same embraced the said improvement in sewing ma- hines, or any substantial part thereof, patented to your orator s aforesaid, or how the same differed from your orator's said latent, if at all. And that the said defendant may answer the premises, and lay be decreed to account for and pay over to your orator all 574 FORMS OF BILLS IN EQl/lTY. gains and profits realized from Ms unlawful making, using, or vending of sewing machines embracing said improvement pat- ented to and vested in your orator as aforesaid, and may be restrained by an injunction to be issued out of this honorable court, or by one of your honors, according to law in such case provided, from making, using, or vending any sewing machines embracing said improvement, or any substantial part thereof, patented to your orator as aforesaid ; and that the infringing machines now in the possession or under the control of the de- fendant, may be delivered up to your orator or be destroyed ; and for such further and other relief in the premises as the nature of the case may require, and to your honors seem meet : May it please your honors to grant unto your orator not only a writ or writs of injunction conformable to the prayer of this bill, but also a writ or writs of suhpwna to be. directed to the said C. W. and confederates, when discovered, commanding him and them, at a certain time, and under a certain penalty therein to be limited, personally to be and appear before your honors in this honorable court, then and there to answer unto this bill of complaint, and to do and receive what to your honors shall seem meet in the premises. E. H., Je. Kill to Restrain the Infringement of Copyrights. A BILL TO EESTEAm A PUBLICATION OF A " LIFE OF WASHINGTOIT," CONTAINING PAGES, OF WHICH PAGES WEEE COPIED FEOM SPAEKS'S " LIFE AND WEITINGS OF WASHINGTON," PAGES BEING OFFICIAL LETTEE8 AND DOCUMENTS, AND PAGES BEING PEIVATE LETTEE8 OF WASHINGTON, OEIGINALLY PUBLISHED BY ME. s. (See 2 Story, 100.) To the Judges of the Circuit Court of the United States for the Distriot of Massachusetts. The biU of complaint of 0. F., T. G. W., and L. T., print- ers and publishers, and copartners, doing business under the name and style of F., W. and T., and J. S., gentleman, all of C, in the county of M., in said district of Massachusetts, and all being citizens of the United States, that the said J. S. is and heretofore, at the time of the infringement hereinafterwards mentioned, was proprietor of the copyright of a work of which the said J. S. is the author and compiler, entitled, " The "Writ- ings of George Washington, being his Correspondence, Ad- FORMS OF BILLS IN EQUITY. 575 dresses Messages, and other Papers, official and private, selected and published trom the original Manuscripts, with a Life of the Author, JSTotes and Illustrations, by J. S.," consisting of twelve volumes, of all which volumes respectively the copyright was taken out by said J. S. previous to the publication thereof re- spectively, and secured according to law, the said J. S., at the time of taking out and securing said copyrights respectively, and still, being a citizen of the United States, and the term of each and all of which copyrights has still more than eight years to run ; and that said F., W . and T., before the infringement hereinafterwards complained of, had, by an agreement with said J. S., undertaken and become interested in and assumed a part of the risk and responsibility of the publication of said work, and have ever since continued, and still continue, to be thus in- terested, and that ever since the first publication of the several volumes of said work, the public have been supplied with copies of the same by said J. S., and the publishers of the same, at reasonable prices; and that said J. S. and said F., W. and T., have incurred very large expenses upon said publication, and have been and are in the receipt of large amounts, the proceeds of the sale of said work, to reimburse their expenses, and remu- nerate their labor and care bestowed upon the same. And your orators further show that they, your orators, being in the receipt of large sums, the proceeds of the sale of said work as aforesaid, under said copyrights, B. M., ]^. C, and T. H. W., all of B., in the county of S., in said district of Massachusetts, and G. P. L., of C, in the county of M., in the district of ]^. H., booksellers, beingcopartners under the name, style, and firm of M., C, L. and W., and also C. "W". U., of S., in the county of E., in said district of Massachusetts, clerk, all of them well knowing that the said J. S. held such copjrrights and said F., W. and T. were interested in the said publication, and deliberately, after due Qotice, intending to infringe said copyrights at said B., on the fifth day of August, in the year of our Lord eighteen hundred md forty, and at divers times before and since the said fifth lay of August, without the allowance and consent of your ora- ;ors, or either of them, published and exposed to sale and sold a vork in two volumes entitled " The Life of "Washington," in he form of an autobiography, the narrative being, to a great sxtent, conducted by himself in extracts and selections from his wn writings, with portraits and other engravings, consisting of pages in the whole, which they still continue to expose to ale, having had due .notice, and well knowing that the same is copy from, and an infringement and piracy of, said " Writings f George Washington, &c., with a Life of the Author," so pub- ished by your orators as aforesaid. And your orators aver, that bree hundred and eighty-eight pages of said piratical work were 576 FORMS OF BILLS IN EQUITY. copied verbatim et literatim from the said work so edited and compiled by said J. S. as aforesaid, and so published by your orators as aforesaid, consisting of matter which was published originally by said J. S. under his said copyright, and which had never before been published or printed, and which he, the said J. S., and his assigns, had the exclusive right and privilege to print, publish, and sell and expose to sale ; and that many other parts of said piratical work published by said parties complained of, besides said three hundred and eighty-eight pages, are in- fringements upon said J. S.'s copyrights, whereby your orators have sustained great damage, detriment and injury. And your orators further show that said M., C, L., and W. and XT. still continue and threaten hereafter to continue to print, puMish, and expose to sale and sell copies of the said piratical work, the protests, expostulations and warnings of your orators to them to the contrary notwithstanding. All which actings, doings, and pretenses are contrary to equity and good conscience, and tend to the wrong and injury of your orators in the premises. In consideration whereof, and forasmuch as your orators are reme- diless in the premises at law, and cannot have adequate relief save in a court of equity, where matters of this and the like nature are properly cognizable and relievable, and to the end that the said M., C, and W. and U. may appear and answer all and singular the matters and things hereinbefore set forth and complained of, particularly how many copies of said piratical work they have sold, and what number they have on hand ; and that they be restrained, by injunction issuing from this' court, from selling or exposing to sale, or causing or being in any way concerned m the selling or exposing to sale, or otherwise dis- posing of any copies of said piratical work, and that they be ordered and decreed to render an account of the copies of the same that they have sold, and to pay over the profits of such sales to the plaintiffs, and that they be ordered to surrender and deliver up the copies on hand and the stereotype plates of said piratical work to an officer of this court to be canceled and de- stroyed, and be ordered to pay the plaintiflEs their costs; and that your orat6rs may have such other and further relief as to this honorable court may seem meet or as equity may require — may it please this honorable court to grant to your orators a writ of suipmna directed to the said M., C, L. & "W"., and U., commanding them at a certain day, and under a certain penalty to be therein inserted, personally to be and appear before this honorable court, then and there to answer the premises, and to stand and abide such order and decree therein as to this honor- able court shall seem agreeable to equity and good conscience. P. & E. By their solicitors. ^ FORMS OF BILLS IN EQUITY. 577 Bill for an Account and an Injunction against the Illegal Use of a Trade-mark. Circuit Court of the United States \ for the District of . \ To the Judges of the Circuit Court of the United States for the District of in the Circuit, sitting as a Court of Equity. A. B. and C. D., of , and citizens of the State of , bring this their bill against E. F., of , and a citizen of the State of . And thereupon your orators, humbly complain- ing, show unto your honors, that they are the assignees and suc- cessors in business of & Co., a firm which was composed of and your orators, and which firm was formerly engaged in the manufacture and sale of sewing machines in ; and for the period of more than five years, your orators and their predecessors had been engaged in the manufacture and sale of sewing machines at the same place ; and that during the whole period of time of such manufacture and sale by them, they had exclusively used, and your orators are now so using, and had, and still have, the right so to use, a certain trade-mark for said sewing machines, which trade-mark was printed on paper of an ultramarine ground on which is represented a view of the Prin- cess Penelope weaving, and the name " Penelope," which is the essential part of said mark, printed thereon ; and that no person, firm or corporation, except the said and your orators, have had at any time heretofore, and none except your orators now have any right to use the said trade-mark or any trade-mark essentially the same. They further show to your honors that on the said day of , in the year , being entitled as aforesaid to the exclusive use of said trade-mark, and desiring to secure to them- selves full and lawful protection for the same by due registra- tion thereof in the United States Patent Office, according to law, your orators did deposit in said Patent Office of the United States for registration their trade-mark aforesaid for sewing machines; and having fully complied with all the requirements of the Act of Congress in such cases made and provided,, the trade-mark aforesaid was on the day of , in the year , duly and lawfully registered and recorded in said United States Patent Office, with protection to remain in force for thirty years from said date, all of which, with an accurate copy and description of said trade-mark and the declaration of a member of the firm, on which it was registered, will more fully and at large appear from copies from the Patent Office, duly 37 578 FORMS OF BILLS IN EQUITY. certified by , commissioner of patents, under his seal of ofiice, and herewith filed as a part of this bill, marked ; and thereupon protection in the exclusive use of the trade-mark aforesaid previously held and enjoyed by your orators was secured to them for the period of thirty years from said day of , in the year Tour orators further respectfully show unto your honors, that sinbe your orators have had the exclusive right to use the said trade-mark, to wit, from the day of in the year to the present time, the said , of in the State of , has been manufacturing sewing machines in said city of , and has been unlawfully and without your orator's consent - using, in the sale thereof, a* trade-mark substantially like, and indeed almost identical with, that of your orators. And your orators do further show that they hold and esti- mate their said trade-mark at the price and value of thou- sand dollars ; but cannot with certainty state the exact amount of their loss and injury, suffered by reason of said wrongful acts of the defendant, but beheve the same to be the full sum of thousand dollars, and do so charge the fact. To the end, therefore, that your orators may obtain relief in the premises in this honorable court, where alone adequa,te relief can be afforded, they pray : — 1st. That the said E. F. may be made a defendant to this bill, and compelled to answer each and every allegation thereof, on oath, as fully and to the same extent as if he were directly and particularly interrogated as to each allegation. 2d. That he may be compelled to render, before a commis- sioner of this court, a full, true, and perfect account of all profits of every description which he has made, or might have made, by the use of the simulated trade-mark aforesaid, or by the use of any other trade-mark for sewing machines having thereon as a constituent part thereof the word " Penelope," or a representa- tion of the Princess Penelope weaving, or any trade-mark hav- ing such near resemblance to that of your orators, as aforesaid, as might be calculated to deceive ; and that he, the said E. P., be decreed to pay over to them all such profits. 3d. That the said commissioner be required to ascertain and report to this court, also, what loss and damage has been inflicted upon your orators by reason of the infringement of their rights, and the interference aforesaid with the right of exclusive use of the trade-mark first above mentioned ; and that the said E. F. be also decreed to pay them such damages. 4th. And may it please your honors to grant unto your orators a restraining order against the said defendant, enjoining and restraining him, his clerks, attorneys, agents and servants FORMS OF BILLS IN EQUITY 579 from using the simulated trade-mark aforesaid, or any other trade-mark containing the word " Penelope," or being substan- tially the same with that of your orators. 5th. And that your orators may obtain the relief prayed for, and all such further or other relief as the nature of their case may require, may it please your honors to grant to your orators the writ of subpoena against the said E. F., &c. ] ] 5 ' Solicitor for complainant. CD. [for the Firm.] United States of America, District of At the city of , in the county of , and district aforesaid, this day of , in the year , personally appeared before me , U. S. commissioner for said district, the above-named 0. p., and made oath that the facts set forth in the foregoing biU, so far as they purport to be stated as of his own knowledge, are true ; and so far as they purport to be stated on information and belief, he believes it to be true. Given under my hand this day of in the year ss. [l. S.J TJ. S. Commissioner for District of Order to Show^ Cause ivhy Injunction should not Issue on the foregoing Bill. In the Circuit Court of the United States for the District of at At chambers in vacation. A. B. and C. D., citizens and in- habitants of the State of , and partners under the firm and slyle of A. B. and C. D. versus E. F., a citizen and inhabitant of the city of , in the State of This day came the complainants by 0. D. and _ , their counsel, and presented to me , judge of the Circuit Court of the United States for the district of , at my cham- bers, in vacation, their bill of complaint against the defendant E. F. ; and the same, with the affidavit of thereto annexed and the exhibits filed, being read and duly considered,^ on mo- tion of said complainants by their counsel aforesaid, it is or- dered, that the defendant do, on the of the special term of the Circuit Court of the United States for the dis- trict of , at , to be held on the day of , 580 FORMS OF BILLS IN EQUITY. appear before said court and show cause, if anj he have to shew, why an injunction should not issue against him, and accounts be ordered, according to the prayer of said bill ; such cause to be shown on said bill on affidavit, provided copies thereof be served on said defendant, with a copy of this order, on or be- fore , the day of Judge, &o. JtaUs \ for the District of In Equity. Circuit Court of the United States \ A. B. and C. D. vs. E. F. The answer of E. F., defendant, to the bill of complaint of A. B. and C. D., complainants. This defendant, now and at all times hereafter saving and reserving unto himself all beneiit and advantage of exception which can or may be had or taken to the many errors, uncer- tainties, and other imperfections in the said complainants' said bill of complaint contained, for answer thereto, or to so much and such parts thereof as this defendant is advised is material or necessary for him to make answer to, this defendant answering says : 1. That he has been informed and admits it to be true, that upon application by the complainants, registration was granted by the Patent Office of the United States on the day of , in the year 18 , as in said bill alleged, of an alleged trade-mark as described in the said bill of complaint ; and this defendant says he does not know and is not informed, save by said bill of complaint, whether or not the said complain- ants did properly make application for said registration of trade- mark, and did comply with all the requirements of law, and did have the said certificate of registration issued to them in due form of law. He leaves the complainants to make such proof thereof as they shall be advised is material. 2. And this de- fendant, oh information and belief, denies that by virtue of any such registration of the said trade-mark in said bill mentioned, or otherwise, the said complainants became, or ever were, or either of them ever was possessed of any exclusive right to use the said alleged trade-mark in the said certificate of registration and bill of complaint described, if indeed the trade-mark and label used by this defendant is in any wise to be regarded as the same, either in substance or effect, with the said trade-mart claimed by the complainants. [&c., &c., &c.] FORMS OF BILLS IN EQUITY. 58 1 Bill for Sale of Property under a Meclianics' Lien Law. To the Honorahle , the Judge of The bill of complaint of , respectfully shows, that he contracted in the month of April, 1860, with a certain , to furnish for the erection of ten dwelling-houses, situate on street, in the city of . That he fulfilled the said contract and furnished the said , which were used in said buildings. That the same were to be paid for in cash on the completion of the said houses, and that the same were fully completed in , 1861. That the said claim is overdue ; the said having frequently promised to pay the same, but has failed to do so. He further shows that he duly filed his claim as a lien against the said buildings and the grounds attached thereto, according to the law in such cases made and provided, in the court of city, which contains an accurate de- scription of the location of said property. And he files here- with, as a part of this bill, a duly certified copy of said lien claim, whereby it appears that there is due to your orator the sum. of dollars. To the end, therefore, that the said may answer the premises, and that a decree may be passed by this court for the sale of the property aforesaid, that from the proceeds thereof the claim of your orator as aforesaid, with interest, may be paid ; and that your orator may have such further or other relief as his case may require : May it please your honor to grant unto your orator the writ of subpoena, &c. Solicitor for Complainant. Bin for the Enforcement of a Mechanic'§ Lien, To the Honorable , Judge of the Circuit Court for Bal- timore City. The bill of complaint of shows that your orator, early in the year , sold and delivered to , certain , which he used in building a certain house in the ; and that your orator afterwards and within months of the time of sale and delivery of the said , filed in the court of , his lien against the said house and the ground adja- cent, to enforce the payment of for the aforesaid, a certified copy of which hen your orator files with this bill as a part thereof, marked "A." To the end, therefore, that the said may answer the 582 FORMS OF BILLS IN EQUITY. premises, and that the property aforesaid and described in the lien may, by a decree of this court, be subjected to the payment of the said lien claim of , and interest from ; and that your orator may hare such further or other relief as his case may require : May it please your honor to grant unto your orator a sub- posna commanding the said to be and appear in this court on a certain day therein named, to answer the premises and abide by and perform such order or decree as may therein be passed. And as in duty, &c. Solicitor yor Complainant. Note. — While each State has its own •mechanics' lien law, and it is rarely identical in every particular with that of another State, yet all of them, hav- ing the same olyeet in view, are in their main provisions so nearly the sarne, and in some instances are mere re-enactments of another, that a Mil of com- plaint, with little modification, will answer in every State. For the law of mechanics' liens, see " The Law of Mechanics' Liens, by 8. L. Phillips, 1874" Sill Framed according to tlie Kules of the Supreme Court of tlie United States. To the Judges of the Circuit Court of the United States, for the District of Massachusetts. I. W., a resident of the city of New York, and a citizen of the State of New York, an infant under the age of twenty years, by his father and next friend, T. W., a resident of the same city and a citizen of the same State, brings this his bill, against E. "W. and E. W., who are both residents of the city of Boston, and citizens of the State of Massachusetts. And your orator says, that one T. A., of the city of Boston, being seized and possessed of a considerable real and personal estate, did, on or about the fourth of March, 1820, duly make and publish his last will and testament in writing ; and thereby, amongst other things bequeathed and devised to your orator, I. "W., the sum of eight hundred dollars, and appointed the above- named E. W. and E. W., executors of his last will and testar ment. That the said testator departed this life on or about the twentieth of December, 1822, and soon after the death of the said testator, to wit, on the eighth of January, 1823, the defend- ants, E. W. and E. W., duly proved the said will in the probate court of the city of Boston, and took upon themselves the bur- den and execution thereof ; and did, accordingly, possess them- selves of the testator's real and personal estate, amounting to the sum of five thousand dollars, and upwards. And your orator further says, that he has, by his father and FORMS OF BILLS IN EQUITY. 583 next friend, T. W., applied to tlie defendants, at various times since his said legacy became due and payable, to pay the same for your orator's benefit ; but they have positively refused to pay or secure for your orator's benefit the aforesaid legacy or any part thereof, pretending and alleging that the estate of the said tes- tator, both real anti personal, was insufficient to discharge his just debts, and that they have exhausted the whole of the estate whicH has come into their hands, in paying such debts ; whereas your orator charges, that the estate of the testator was of the value of five thousand dollars, as hereinbefore stated, and that his debts were small and of even trifling value when estimated by that amount. And your orator charges that the said defend- ants have converted the property of their testator to their own use, without making any satisfaction to your orator for his leg- acy hereinbefore mentioned. To the end, therefore, that the said defendants may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their several and respective corporal oaths, and according to the best and utmost of their several and respective knowledge, remembrance, information and belief, full, true, direct and perfect answer make to such of the several inter- rogatories hereinafter numbered and set forth, as by the note hereunder written they are respectively required to answer ; that is to say — • , 1. "Whiether it is not a fact that the said T. A. did duly make and publish his last will and testament, and therein be- queath to your orator a legacy of eight hundred dollars ? 2. Whether it is not a fact that the said T. A., in his last wiU and testament, appointed them, the said E. "W". and E.. W., to be executors of the same ? 3. Whether it is not a fact, that the said testator died with- out revoking said last will and testament, but in fact leaving the same in full force ? i. Whether it is not a fact, that the said defendants, or one of them, proved the said will in the probate court of the city of Boston, in due form of law, and took upon themselves the exe- cution thereof ? 5. Whether it is not a fact, that they have possessed them- selves of the real and personal estate, goods, chattels and efEects of the said T. A., deceased ? 6. Whether it is not a fact, that assets of said testator have come into their hands more than sufficient to discharge his just debts ? , 1 . ^1, 7. Whether it is not a fact, that they, and each oi them, have refused to pay the legacy bequeathed to your orator, and that it remains wholly unpaid ? 584 FORMS OF BILLS IN EQUITY. Your orator prays, that the said defendants may be com- pelled to render a full and perfect account of the estate, goods, chattels and effects of the said T. A., deceased, the value thereof, the debts due by said deceased, and to whom they have been paid or are payable, the debts due to said testator, and vrhich of them have been paid to the said executors, and all other matters and things concerning the condition of said estate. And that this they may do upon their corporal loaths, to the best of their respective knowledge, information and belief. You orator further prays, that the said defendants may be compelled to pay the legacy of eight hundred dollars be- queathed to your orator, by the testator, and that same may be placed at interest for the benefit of your orator, until he attains the age of twenty-one years, and then paid over to him. And that in the mean time the interest thereof be paid to your ora- tor's father, to be applied by him to the support and mainten- ance of your orator. And that your orator may have such fur- ther or other reHef as the nature of his case may require. And your orator prays that your honors will grant unto your orator the writ of subpoena, issuing out of and under the seal of this court, to be directed to the said defendants, E. "W". and R. W., commanding them and each of them, by a certain day, and under a certain penalty therein named, to appear be- fore your honors, in the Circuit Court of , and then and there answer the premises, and abide the order and decree of the court. , SoVrfor PVff. JSToTE. — The defendant E. "W"., and the defendant R. W., are each required to answer the interrogatories, numbered respect- ively, 1, 2, 3, 4, 5, 6, r. In tlse Supreme €oairt of the United States. Bill by one State against another. To the Sup'eme Court of the United States : The State of Missouri, by Robert A. Hatcher, her agent and attorney, duly appointed and commissioned in pursuance of law, states that a controversy has arisen between said State and the State of Kentucky, respecting the boundaries of said States, and the said State of Missouri complains, that said State of Kentucky, since the first of January, A. D. one thousand eight hundred and fifty-seven, has unlawfully claimed and exercised jurisdiction over Wolf Island, an island in the Mississippi river, forming part of the territory of said State of Missouri ; that FORMS OF BILLS IN EQUITY. 585 said States are severally bounded at the point in question by the main channel of said river, and the said island was, at the time said boundaries were fixed, and still is, on the western or Missouri side of said channel. "Wherefore complainant prays, that said State of Kentucky may be made a defendant to this bill, and permitted to answer the same ; that upon a final hearing of the cause, the boundary herein claimed maybe ascertained and estabhshed by the decree of this court, and that the rights of possession, jurisdiction and sovereignty of said State of Missouri thereto be quieted, and the defendant forever enjoined and restrained from disturbing said complainant, her officers or people, in the full possession and enjoyment of the same ; and the complainant prays such other and further relief as the nature of the case requires and to equity belongs ; and complainant will ever pray, &c. R. A. HATCHEE, Aff't and SoVrfor Complainant. Information s. rarOEMATION' TO EESTEAIN THE MAKING A CAEEIAGE-EOAD AND BEEAKnsrG UP A PUBLIC FOOTPATH, EST OKDEE TO PREVENT CERTAIN STREETS FROil BEING MADE THOROUGHFARES FOR To, cfec, in Chancery. Informing, showeth unto your honors, 0. J. R., of, &c., Esq., attorney general of the State of, &c., at and by the relation of A. B., &c., &c., against D. T., &c., &c., that there is situate, lying, and beingwithin the town of , a cer- tain public street, called V . lane, leading from a certain other public street, called B. street, to a certain other public street, called G. street, and communicating on the north side thereof with certain other public streets, called 0. street. Old B. street, and S. row. And the attorney general aforesaid, by the relation aforesaid, further showeth, that at the east end of the said street, called V. lane, there is a certain other public street, called S. street, leading from thence into a certain other public street, called P. street, and that along the south of said street, called V. lane, from S. street to B. street, there is, and for years past has been, a common and public footpath, which has been from time to time paved with flag stones at the expense of the inhab- itants of the said town of , for the convenience of per- sons" passing and repassing on foot the said street called V. lane, 586 FORMS OF BILLS IN EQUITY. being a great public thoroughfare for foot passengers from B. street to S. street, although there is not, nor ever has been, any thoroughfare for carriages along the said street from B. street to S. street, by reason of certain wooden posts, which are, and ever since the making of the said street called Y. lane, have been placed across the said street, a few feet to the eastward of S. row. And the attorney general aforesaid, by the relation aforesaid, showeth that the said common and public footway from B. street to S. street, is and ever since the making of the same has been bounded on the south for the most part by a certain ancient brick wall, which forms the northern fence and boundary of certain lands called M. gardens and B. gardens ; and that there is not, nor ever has been, any public way or opening on the north side of the said footway, so that the people of , in passing and repassing on the same footway, have at all times had the free and uninterrupted use thereof without any hurt, hindrance, or obstruction whatsoever. And the at- torney general aforesaid, by the aforesaid relation, further show- eth, that upwards of years since the then owners of the said lands called M. gardens and B. gardens, severally claimed a right to open a public street or way from P., through their respective lands into the said street called V. lane, and threat- ened to make a public street or streets accordingly, but such claim being resisted on the part of the proprietors and inhab- itants of the said several streets, called Y. lane, C. street, Old B. street, and S. row, by reason of the disturbance and injury that would thereby be occasioned to the said several streets, the said owners of the said lands thought fit to abandon such claim, and afterwards by an act of the , made and passed on the day of , entitled " An act," &c., it was provided, &c., which provision was inserted in the said act for the purpose of protecting the said streets called Y. lane, S. row, C. street, and Old B. street, from any thoroughfare for carriages from P. to the said street called Y. lane, by way of S. street, or by any other means than by the way of B. street. And the attorney general^ aforesaid, and by the relation aforesaid, further showeth, that said D. Y., proprietor of the said lands called M. gardens, and the defendant heretofore named, has formed a plan for making, and is about to make, a public street or way for horses, carts, and carriages, from P., through the said lands called M. gardens and the public street called Y. lane, over the aforesaid common and public footway on the south side of the said street ; and in and towards the execution of such plan has actually made an opening in the said ancient boundary wall, and has taken up a part of the flag pavement of the said footway. And the said attorney general, at the aforesaid relation, further FORMS OF BILLS IN EQUITY. 587 showetli, that such puhlic street or way so intended to be made by the said defendant, D. T., if carried into execution, will greatly interrupt and obstruct the said common and public foot- way on the south side of the said street called Y. lane, and will be to the great damage and common nuisance of all the people of , passing and repassing by the said footway. And the attorney general aforesaid, at the relation aforesaid, further showeth, that such intended street, if carried into execution, will be opposite to the end of S. row, and westward of the said wooden posts so as aforesaid placed across the said street called Y. lane, and by making a direct thoroughfare for horses, carts, and carriages from P., into the said street called Y. lane, will actually defeat the provision made as aforesaid in the said act for the protection of the said streets, called Y. lane, S. row, 0. street, and Old B. street, from any thoroughfare for carriages, and will therefore be contrary to the true intent, meaning, and spirit of the said act. To the end, therefore, that the said D. T. may, according to the best of his knowledge, remembrance, information, and be- hef , &c. II. FORMS OF DEFENSES IN EQUITY. Demurrer. DEMDItEEE TO THE WhOLE BiLL. The demurrer of A., of county {or of B., an infant under the age of twenty-one years, by C, of county, the guardian ; or of D., an idiot or lunatic, by E., of county, his committee or guardian ; w of E. and F., his wife, of coimty ; or of G-., the wife of H., who has duly ob- tained leave to defend separately from her husband), to the bill of complaint of M., against the defendant (and others) in chan- cery exhibited. This defendant, by protestation, not confessing or acknowl- edging all or any of the matters and things in the said bill of complaint contained, to be true in manner and form as the same are therein set forth, doth demur thereto, and for causes of de- murrer show : 1. General demurrer. That the said complainant hath not, in and by his said biU, stated such a case as doth or ought to entitle him to any such discovery or relief as is thereby sought and prayed for, from or against this defendant. 2. Thai the party has a remedy at law. That if the matters stated do give the complainant any cause of complaint against this defendant, the same is triable and determinable at law, and ought not to be inquired of by this court. 3. Thai the hill wants proper parties. That B., in the said bill of complaint named, is by the com- plainant's own showing, a proper and necessary party to any suit which may be brought against the defendant in this court, touching any of the pretended matters of equity charged in said bni. Conclusion. Wherefore, and for divers other errors and imperfections, this defendant demands the judgment of this court whether he (588) FORMS OF DEFENSES IN EQUITY. 589 stall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained ; and prays to be hence dismissed with his reasonable costs in this behalf sustained. Pleas. I. Plea to the Person -kt Abatement. The plea of A., of county {or of B., an infant under the age of twenty-one years, by C., of county, his guardian ; or of D., an idiot or lunatic, by E., of county, his committee or guardian ; or of E. and F., his wife, of county ; or of G., the wife of H., who has obtained leave to defend separately from her husband), to the bill of com- plaint of M. against him in equity exhibited. This defendant, by protestation, not confessing or acknowl- edging all or any part of the matters and things in the said bill of complaint contained, to be true, in manner and form as the same are therein set forth,* for plea nevertheless to the said bill, doth plead and aver : Infancy of complainant. That the said complainant, at the time of filing his said bill, was and now is an infant under the age of twenty-one years, that is to say, of the age of or thereabout. Coverture of complainant. That the said complainant, at the time of filing her said bill, was and now is under coverture of one B., her husband, who is still living, and is in every respect capable, if necessary, of instituting any suit at law or in equity in this State in her behalf. Lunacy of the complainant. That the said complainant who, by himself alone, attempts to sustain an injunction in this suit, before and at the time of filing his said bill, was duly found and declared to be a lunatic, under and by virtue of a commission of lunacy, duly awarded and issued against him, as by the inquisition thereon (a true copy whereof is now in this defendant's possession, and ready to be produced to this honorable court), to which this defendant craves leave to refer, will more fully appear; and which said commis- sion has not hitherto been superseded, and still remains m lull 590 FORMS OF DEFENSES IN EQUITY. force and effect ; and the said A. B., therein named, and the said plaintiff is, as this defendant avers, one and the same per- son, and are not other and different persons. Coverture of the defendant. That this defendant, at the time of filing the aforesaid bill, was and now is under coverture of one B., her husband, who is still living, and capable of defending this suit in her behalf. CoriGlusion. Wherefore, this defendant humbly prays judgment of this court whether he shall be compelled to make any further or other answer to the said bill of complaint, and prays to be dis- missed with his reasonable costs and charges in this behalf sus- tained. II. Pleas in Bae. The plea of, &c. \as in the first form'], doth plead and aver. That the defendant never was administrator. That he is not, nor ever has been, administrator of the goods, chattels, rights or credits, which were of the said E., deceased, in the said bill named, as the said complainant in his said bill has untruly alleged. Wherefore this defendant prays judgment of this court, whether he should be required to make any further answer to the said bill ; and prays to be hence dismissed with his reason- able costs and charges in this behalf sustained. Plea of a former recovery. That heretofore, and before the complainant exhibited his present bill in this court, to wit, on the day of , the said complainant filed his bill of complaint in this court against this defendant, praying for a specific execution of the identical agreement which is set out in his present bill of complaint, by a decree requiring this defendant to convey unto the complainant the premises in the said agreement mentioned, upon payment by the said complainant to 9iis defendant, of the sum of , which is therein alleged to be the balance of the purchase money for the said premises, then due to this defendant, and being the same sum of money which is now alleged to be due on account thereof. To which said bill this defendant answered, and such other proceedings were had that afterwards, to wit, on the , FORMS OF DEFENSES IN EQUITY. 591 day of , by a decree passed in the cause, it was adjudged, ordered and decreed, that the complainant's said bUl of com- plaint be dismissed, and the complainant pay to the defendant his costs of suit, to be taxed by the register; as by the said de- cree, duly signed and enrolled in this court appears. All which matters and things* this defendant doth aver and plead in bar of the complainant's present bill of complaint, and prays the judg- ment of this court, whether he shall be compelled to make any further answer to the said laill, and prays to be hence dismissed with his reasonable costs in this behalf sustained. Plea of a former suit depending. That heretofore, and before the said complainant exhibited his present bill in this court, to wit, on the day of , the said complainant filed his bill of complaint in this court against this defendant, and also against , for the same matters and to the same effect, and for the like relief and pur- pose, as against this defendant, as the said complainant prays by his present bill; to which said bill this defendant answered, and -other proceedings were thereupon had ; and the said former bill and proceedings now remain depending in this court, and the said cause is yet undetermined and undismissed. All which matters and things, &c., &c. \_As in the last ^preceding form from the asterish.\ Plea of a Release ivitli averments negatiTing fraud, &c., and with an Answer to support the Plea. \For the commenoement, pursue the first form of a plea to the asterish.'\ As to so much and such part of the said complainant's bill as seeks an account of the several dealings and transactions be- tween the said complainant and this defendant previously and up to the day of , and prays that the balance, if any, which shall be found due from this defendant upon taking such account, may be paid by him to the complainant, this defendant doth plead thereto, and for plea says: , That previously to the filing of the complainant's said bill, to wit, on th'e said day of , the said complainant, in consideration of the sum of then paid to him by this de- fendant, by a certain writing of release under his hand and sealed with his seal, which this defendant has ready to be pro- duced in this court, did for himself, his executors and adminis- trators, retaise, release, and forever quit-claim unto this defend- 592 FORMS OF DEFENSES IN EQUITY. ant (among otlier things), the several matters and things in the said bill mentioned and complained of (and an account whereof is thereby sought against this defendant as aforesaid), and all suits and demands whatsoever, both at law and in equity, which the said complainant then had or might thereafter have in re- spect of the several dealings and transactions, matters and things, in the said bill mentioned, or any of them. And this defend- ant avers that the said release was freely, fairly and voluntarily given and executed by the said complainant on the day the same bears date ; and that the said complainant well knew the nature and effect thereof previously to giving the same, and that the sum of , so paid by this defendant to the said complainant as aforesaid, was a full and fair equivalent for any demand which the said complainant could or might have against this defendant in respect of the several matters therein, and in the said bill also mentioned and every one of them. And there- fore this defendant pleads the said release in bar to so much of the complainant's bill as is hereinbefore pleaded to, and prays the judgment of this court whether he shall be compelled to make any further answer to so much of the said bill as is here- inbefore pleaded to. And this defendant not waiving his said plea, but insisting thereon, for answer to residue of the afore- said bill, and in support of his aforesaid plea, saith that he de- nies that the said release was unduly obtained by this defendant from the said complainant, or that the said complainant was ignorant of the nature and effect of such release, or that the consideration paid by this defendant to induce the said com- plainant to execute the same, was at all inadequate to the just claims and demands of the said complainant against this defend- ant in respect of the several dealings and transactions in the said bill mentioned, or any of them. And this defendant further denies, &c., &c. County, to wit : On this day of , before the subscriber, a justice of the peace in and for said county [or notary puhUo, or other officer, according to the practice of each court], personally ap- peared the within named A. B., and made oath that the several matters and things stated in the foregoing plea and answer are true to the best of his knowledge and belief. FORMS OF DEFENSES IN EQUITY. 593 Plea of Piirclia§e for Valuable Consideration without Wotice, as to so much of said Bill as Prays a Discovery, &c., &c. [Pursue first form to the asterisK], As to so much of said bill as seeks an account of what is due and owing to the complainant in respect of the annuity of , therein mentioned, and stated to be charged upon, and issuing out of the hereditaments and premises therein and hereinafter mentioned, this defendant doth plead thereto, and for plea saith : That A. B., before and on the day of , was or pretended to be seized in fee simple, and was or pretended to be in actual possession of the land and premises in the said biU mentioned, and in respect whereof relief is sought of this de- fendant, free from all incumbrances whatever ; and this defend- ant, believing that the said A. B. was so seized and entitled, and that the said land and premises were in fact free from all incum- brances, on the day of , agreed with the said A. B. for the absolute purchase of the fee simple and inherit- ance thereof ; whereupon the said A. B., by his certain inden- ture of writing, dated on the day of , and duly made and executed, in consideration of the sum of , paid to him by this defendant, granted, bargained, and sold unto this defendant all, &c., &c. [Here particularly set out the pwrcels verbatim from the deed, and allege that they are the same premises mentioned and described in the bill.'] To have and to hold unto and to the use of this defendant, his heirs and assigns forever. And in the said indenture is contained a covenant from the said A. B. with this defendant, that the said A. B. was absolutely seized of the same land and premises, and that the same and every part and parcel thereof, were and was free from all incumbrances, as by the said indenture, reference being thereto had when the same shall be produced into this court will appear. And this defendant avers that the said sum of ' the consideration money in the said indenture men- tioned, was actually paid by this defendant to the said A. B. at the time the said indenture bears date ; and that at or before the respective times of the execution of the said indenture, and of the payment of the said purchase money, he, this defendant, had no notice whatever of the said annuity of now claimed by the said complainant, or of any other incumbrance whatever that in anywise affected the said land and premises so purchased by this defendant, or any part thereof. All which matters and things this defendant aoth aver and plead in bar to so much of the bill as is hereinbefore mentioned.. 38 594 FORMS OF DEFENSES IN EQUITY. and prays judgment of this court whstlier he should make fur- ther answer thereto. And this defendant, not waiving his said plea, bnt relying thereon, and for better supporting the same, doth answer and say, that he had not at any time before, or at the time of pur- chasing the said land and premises, or since, until the complain- ant's bill was filed, any notice whatever, either express or implied, of the said annuity of , claimed by the said complainant, or that the same, or any other Incumbrance whatever, was charged upon or in anywise aifected the said land tod premises so purchased as aforesaid, or any part thereof ; and this defend- ant, &c., &c. NoTB.^J^s this plea, like the one immediately preceding it, relies on matters in pais as a defense, it must ie accompanied by a'liJce affidavit of its truth. Plea of Stated Account. \_Title and comonenoement as dbove.'j As to so much and such parts of the said plaintiflPs bill as seeks an account of and concerning the dealings and transactions therein alleged to have taken place between the said plaintiff and this defendant at any time before the day of , in the year , this defendant for plea thereto saith, that on the day of , which was previous to the said biU of complaint being filed, the said plaintiff and this defendant did make up, state, and settle an account in writing, a counter- part whereof was then delivered to the said plaintiff, of all sums of money which this defendant had before that time, by the order and direction and for the use of the said plaintiff, received, and of all matters and things thereto relating, or at any time before the said day of , being or depending between the said plaintiff and this defendant (and in respect whereof the said plaintiff's bill of complaint has been since filed), and the said plaintiff, after a strict examination of the said account, and every item and particular thereof, which this defendant avers, according to his best knowledge and belief, to be true and just, did approve and allow the same, and actually received from this defendant the sum of , the balance of the said account, which by the said account appeared to be justly due to him from this defendant ; and the said plaintiff thereupon, and on the day of , gave to this defendant a receipt or acquittance for the same, under his hand, in full of all demands, and which said receipt or accLuittance is in the words and figures FORMS OF DEFENSES IN EQUITY. 595 following (that is to say): [here state the receipt verlatim\ &s by the said receipt or acquittance now in the possession of this defendant, and ready to be produced to this honorable court wul appear. Therefore, &c. Plea of tlie Act of Limitations. That if the complainant ever had any cause of action or suit against this defendant for or concerning any of the matters in , the said bill mentioned, which this defendant doth in no sort ' admit, such cause of action or suit did accrue or arise above three years before the filing of the said bill, or before serving or suing out process against this defendant to appear and answer said bill ; nor did this defendant at any time within three years next before the said bill was exhibited, or process served on or issued out against this defendant, to appear to answer the same, promise, or agree to come to any account for, or to make satis- faction, or to pay any sum or sums of money for or by reason of the said matters charged in said bill. All which matters and things, &c., &c. Note. — Where the plea relies on the act of limitations simply, it may he put in without oath. But if there is any special matter charged in the bill to avoid the act, and which requires a denial hy the plea, as in the foregoing form, then the plea must he sustained, hy an answer ; and the plea and answer must he iierifled by affidavit. And in cases where the plea requires the support of an answer, the plea must not cover the whole hill, but only so much as does not relate to the discovery of the particulars and acts to which the plaintiff has a right to require an answer in support of the plea. Plea of the Statute of Frauds to a Parol Agreement as to so mucli of tlie Bill as seeks Discovery or Relief as to the Agreement. As to so much of said bill as seeks to compel this defendant to perform the agreement in said bill mentioned to have been made and entered into between the complainant and this de- fendant, for the sale by this defendant unto the complainant of a certain messuage or tenement in the bill mentioned, or as seeks to compel this defendant to execute a conveyance of such mes- suage or tenement to the complainant, pursuant to any such agreement, or as seeks any other relief relating to such messuage or tenement, or as seeks any discovery from this defendant con- cerning any agreement made or entered into between the com- plainant and this defendant, for sale by this defendant to the 596 FORMS OF DEFENSES IN EQUITY. complainant of the said messuage or tenement, and not reduced into writing, signed by this defendant, or some person by him thereunto lawfully authorized. For plea thereto this defendant says : That neither this defendant, nor any person by him author- ized, did ever sign any contract or agreement in writing for making and executing any sale or conveyance to the complamant of the land and premises in the bill mentioned and described, or any interest thereof, or to any such effect, or any memoi'an- • dum or note in writing of any such agreement. All which this defendant doth aver and plead in bar to so much and such parts, &c., &c. And this defendant not waiving his said plea, &c., &c. Note. — This is a pure plea of the statute. If tJie bill cha/rges fraud, part performariee, or any other circumstanee, to avoid the operation of the statute, it will be neeessa/ry to negative such charges in the plea, and also by an answer in support of the plea. It must be verified by affidavit. (Form of Affidavit, ante, p. 593.) Note. — Pleas to the jurisdiction of the court or disability of the person of the complainant, and pleas in bar of any matter of record, or of matters rec irded or as of record in the court itself, or any other court, need not be upon, . oath. All other pleas, including pleas in disability of the person of the defend- ant, ought to be supported by the oath of the party that the matters contained in this plea are true to tJie best of his hnowledge and belief. (Mitf . Pie. S89 ; Stor. Pie. 541 ; 3 Gill & John. 491 ; Cooper Pie. 332.) PLEAS TO BILLS NOT ORIGINAL. Plea to a Bill of Revivor. That the said plaintiff is not, as stated in the said bill of re- vivor, the personal representative of A. B., deceased, the testar tor 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 0. D., late of, &c., deceased, who died intestate on the day of last, and was sole executor of the said A. B. ; and that letters of admin- istration of the goods and estate of the said A. B. unadminis- tered by the said C. D. in his lifetime, have since the death of the said 0. D. been duly granted by the proper court to E. F., of, &c., who thereby became, and now is, the legal personal representative of the said A. B. Wherefore the said defendant demands judgment of this honorable court, whether he shall be compelled to answer the said plaintiff's bill, and humbly prays to be, dismissed with his reasonablQ costs in this behalf sustained. FORMS OF DEFENSES IN EQUITY, 597 Plea to a Supplemental Bill. That tlie said matters and things in the said plaintiff's 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 seYcral matters and things can now be introduced, and ought so to be, if necessary, by amending the original bill. Wherefore, &c. ANSWERS. Forms of Commencement and Conclusion of Answ^ers. COMMENCEMENT. The title of a defense hy answer to a suit in equity. The answer of , the defendant [or, one of the defend- ants ; or, the joint and several answers of , the defend- ants or, two ot the defendants], to the bill of complaint of plaintiff or plaintiffs. JBy an infant. The answer of C. D., an infant under the age of twenty-one years, by L. M., his guardian, defendant to the bill of complaint of A. B., plaintiff. By hushand and wife. The joint answer of A. B. and M. his wife, defendants, to the bUl of complaint of 0. D., the plaintiff. By wife sepa/rately under an order. The answer of C. B., one of the above-named defendants, and the wife of A. B., to the bill, &c. In answer to the said bill, the said 0. B., answering sepa- rately from her husband, in pursuance of an order of this hon- orable court, dated the day of , 18 , authorizing her so to do, says as f oUows : By a lunatic or idiot. The answer of J. D., a lunatic [or idiot], by S. P., his guard- ian ad litem, to the bill of complaint of F. D,, complamant. 598 FORMS OF DEFENSES IN EQUITY. Where the hill misstates the names of the defendants. The joint and several answer of J. L., in the bill called E. L., and of C. E., in the bill called D. E., defendants, to the bill of complaint of A. B., plaintiff. Introduction, or words of course, preceding an answer. This defendant, now and at all times hereafter, saving to himself all and aU manner of benefit or advantage of exception or otherwise, that can or may be had or taken to the many errors, uncertainties, and imperfections in the said bill contained, for answer thereto, or to so much thereof as this defendant is ad- vised it is material or necessary for him to make answer to, an- swering, saith. Note. — It is not usual to preface the answer with a formal introduction like the precediTig, called a protestation; nor to conclude with a formal traverse nice that which follows. But it is necessary that the forms of both the protesta- tion and the traverse he given to complete the system of equity pleading. Conclusion, or formal traverse. And this defendant denies all and all manner of unlawful combination 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, con- fessed, traversed, and avoided, or denied, is true to the knowl- edge 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 humbly prays to be hence dismissed, with his reasonable costs and charges in this behalf sustained. Form of Answer admitting the Complainant's Case. The answer of to the bill of complaint of , against him in this court exhibited. This defendant admits the sev'3ral matters and things charged in the complainant's bill to be tnie ; and submits to such decree in the premises as may be right. And as, &c. Note. — WMre the answer admits the complainant's case, it is usually accepted without oath. FORMS OF DEFENSES IN EQUITY. 599 Form of AffldaTit. Cownty, to wit: On this _ day of , before tlie subscriber, a justice of tbe peace in and for said county, personally appeared the above-named , and makes oath that the matters stated in the foregoing answer are true to the best of his knowledge and belief. Form of Affidavit ^yhere Complainant is Absent. — County, to wit : On this day of , before the subscriber, a justice of the peace in and for said coimty, personally appeared A. B., and made oath that he has read the foregoing biU and knows the contents thereof, and that the facts therein stated are true of his own knowledge ; and that he makes the affidavit because the complainant is unavoidably absent, and therefore cannot make the affidavit himself. Note. — The above affidavits will serve as forms in all instances. Commission to Examine "Witnesses. Maryland, (&g. The State of Maryland to A. and B., of County, greeting : Know, that we have appointed you to be our commissioners to examine evidences in a cause depending in our High Court of Chancery, between C, complainant, and D., defendant. We therefore require you, having first taken the oath hereunto an- nexed, and also administered the annexed oath to the person whom you shall appoint as clerk to attend the execution of this commission, that at such time and place as to you shall seem convenient, you cause to come before you all such evidences as shall be named and produced to you by either the plaintiff or defendant ; and that you examine them on their corporal oaths, to be by you administered upon the Holy Evangelists of Al- mighty God, touching their knowledge or remembrance of any- thing that may relate to the cause aforesaid ; and that you cause notice to be given to the parties, or their attorneys, of the exe- cution of this commission, before you execute the same ; and having reduced the depositions of the witnesses so taken by you into writing, you send the same, with this our commission, close under your hand and seal, to us in our High Court of Chancery, with all convenient speed. "Witness the Honorable Theodorick Bland, Esq., Chancellor, this day of , Anno Domini 600 FORMS OF DEFENSES IN EQUITY. Commissioner's Oatli. Tou shall, according to the best of your skill and knowledge, truly, faithfully, and without partiality to any or either of the parties, take the examination and depositions of all and every witness and witnesses produced and examined by virtue of the commission hereto annexed, upon the interrogatories now, or which may hereafter, before the said commission is closed, be produced to and left with you by either of the said parties. So help you God. Clerk's Oath. Tou shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, and trans- cribe the depositions of all and every the witnesses produced before and examined by the commissioners named in the com- mission hereunto annexed, as far forth as you are directed and employed by said commissioners to take, write down, and tran- scribe the said depositions, or any of them. So help you God. Form of Interrogatories. A. C. vs. B. D. In Chanee/y. Interrogatories to be proposed to witnesses^ to be produced on the part of the complainant. 1. Are you or not acquainted with the parties to this suit, or either, and which of them ? If yea, how long have you known them, and each of them? 2. Are you or not acquainted with the handwriting of the defendant ? If yea, look at the paper now shown you marked No. 1. Is or is not the signature " B. D.," thereto attached, in the handwriting of the said defendant? State any circum- stances within your knowledge which raay lead you to the opin- ion which you entertain on this subject^ 3. "Were you or not acquainted with one W., formerly a resi- dent of county ? Is he dead or alive ? If alive, where is he at this time ? If dead, when and where did he die ? 4. Was or was not the said "W". married at the time of his death ? If yea, who is his widow ? and where does she reside ? FORMS OF DEFENSES IN EQUITY. 6oi 5. Did or not the said W. leave children ? If yea, state how many, and their sexes, names, ages, present places of residence, and condition of life. Note.— TTjW tTie above fonm the practitioner can easily construct inter- rogatories suited,to every case. STottce to the Parties. A. 0. vs. B. D. In ChwnGery. Notice is hereby given to the parties, that the subscribers will attend at the house of , in , on Monday, the day of , at 10 o'clock, a. m., for the purpose of opening and executing a commission from the Court of Chan- cery, empowering them to examine evidences in this cause. Witness our hands, this day of A. B. County, to wit: On this day of , before the subscriber, a justice of the peace in and for said county, personally appeared and made oath that he served the within notice on the within named A. C, on the instant, and on the within named B. D. on the instant. Summons for Witnesses. Z^\ A. vg. \In Chancery. B. D. You are hereby summoned to appear before us, commis- sioners acting under a commission issued out of the Court of Chancery, and empowering us to examine evidences in this cause, on the day of , at 10 o'clock, A. m., at the 602 FORMS OF DEFENSES IN EQUITY; house of , in , to testify on behalf of the compkin- ant. Witness our hands and seals, this day of Note. — As the commissioners have not the power to compel the attendance of the witnesses, application must 5« made by the solicitor to the court hy peti- tion, praying through the commissioners for an attachment compelling them ta appear before the commissioners to testify. Commissioners' Return. At the execution of the annexed commission issued out of the Court of Chancery, and to us directed, and empowering us to examine evidences m the cause depending in the said court between A. C, as complainant, and B. D., as defendant — We, A. and B., commissioners therein named, having met on the day of , at , pursuant to previous notice thereof given to the said parties, and taken the oath annexed to said commission, and having appointed H. our clerk, and admin-, istered to him the oath annexed to the said commission to be taken by him, did proceed then and there in the presence of the complainant, and of S., the sohcitor for the defendant, to take the following depositions, to wit : M., a witness of lawful age, produced on the part of the complainant, being duly sworn and examined to interrogatories filed with the commissioners by the complainant, and herewith returned, deposes and says : To the first interrogatory, that he is acquainted, &c. To the second interrogatory, that he is, &c., &c. Whereupon the counsel for the defendant exhibited cross- interrogatories to be put to said witness, which are herewith retm'ned, and the said witness being examined thereon deposes and says: To the first interrogatory, &c., &c. There being no other witnesses to be examined, and neither party desiring further time for the production of his evidences, the commissioners closed the said commission, and herewith re- tmTi the same under their hands and seals, this day of ' A. [SEAL.J B. [seal.] Note. — After closing the commission, it ought to he put into an envelope, together with the inteyrogalories and depositions and all documents left with the commissioners ly the parties, and sealed up, and thus indorsed : The execution of this commission appears by certain sched- ules thereunto annexed. A. [SEAX.] B. [seal.] FORMS OF DEFENSES IN EQUITY. 603 Petition for a Return of a Commission. A. C. vs. B. D. In Chancery. To the Honorable Chancellor of Maryland. The petition of A. C, the complainant, humbly shows that on the day of , a commission was issued to A. and B., of county, authorizing them to examine evi- dences in, this cause. That said commission has been opened and testimony taken thereimder, and that it has been outstand- ing for more than six months from the issuing thereof. Tour petitioner therefore prays that the said commissioners may be directed forthwith to return the said commission with their pro- ceedings. And as, &c. Order passed on the Petition In Chancery. This day of Ordered, that the commissioners named in the foregoing petition return the commission directed to them, with their pro- ceedings thereon, before the first day of next term. Pelit3<»ii for Remanding Commission. The petition, c&c. That heretofore a commission was issued to A. and B., of county, to examine evidences in this cause, which was executed and returned into this court, on the day of . That your petitioner has lately discovered that his proofs taken under said commission are defective in this, that he has not proved the execution of his exhibit B, by the parties thereto. That this defect was occasioned by an accidental over- sight, and can be easily removed, as there are several witnesses within reach of your petitioner by whom he can prove the fact. And he avers that in making this application, he has no design to delay the hearing of the cause. He therefore prays that your honor will remand the former commission, or issue a new com- mission to the persons before named, to examine evidences m the cause. And as, &c. Note.— This petition sTiotcM le verified, Iry the oath of the petitioner. 6o4 FORMS OF DEJ'ENSES IN EQUITY. Order on tbe Petition. In Chancery, on the day of ' Ordered, that a new commission issue to A. and B., as prayed by the within petition ; but the hearing of the cause shall not be delayed thereby, unless a continuance shaU be granted by the opposite party. Note. — Foregoing is the full regula/r procedure in equity for taking testU many under a commisdon issued for that purpose. Order for a feigned Issue. [Title of cause.'] This cause having been brought on to be heard upon the pleadings filed and the proofs taken therein, and the said plead- ings and proofs having been read, and Mr. S. W., of counsel for the complainant, and Mr. F. K., of counsel for the defendant, having been heard, it is ordered, adjudged, and decreed, and this court by virtue of the power and authority thereof, doth order, adjudge and decree, that a feigned issue be formed and tried between the parties by a jury of the country, at the next circuit cour.t to be held in and' for the county of Saratoga, on the first Monday of January next, to inquire and determine whether the deed mentioned in the pleadings in this cause, bearing date the day of , 1840, and purporting to have been executed by J. H. and E. his wife, to the complain- ant, was executed by the said J. H. and E. his wife; and whether the same was delivered by the said grantors to the grantee therein. And it is further ordered that me solicitor for the complainant in this suit do make up the said issues, and serve a copy thereof upon the defendant's solicitor without un- necessary delay ; that unless the form of such issues shall be agreed upon by the solicitors for the respective parties within ten days after such service thereof, then that it be referred to one of the masters of this court residing in the county of Sarar toga to settle the said issues and to report the same to this court. And it is further ordered, adjudged and decreed, that on the trial of the said feigned issues either party is to be at liberty to examine any witnesses whose testimony was read upon the hearing of this cause, or to read their depositions heretofore taken, if they are dead, or out of the jurisdiction of the court. And either party is also to be at liberty to read the deposition of any witness of the opposite party which was read on the FORMS OF DEFENSES IN EQUITY. 605 hearing of tliis cause. That the said issues be so framed that the complainant in this cause may hold the alfinnative of the sewral questions above stated ; and he is to be at liberty to open and filose the argument on the trial. Either party is to be at liberty to notice the cause for trial ; and neither party is to be at liberty to put it off without sufficient cause shown, and on the usual terms. And all further directions are reserved until after the trial of the said issues. Declaration upon a Feigned Issue. Supreme Court. Of October term, m the year one thousand eight hundred and forty-three. Saratoga County, ss. : John Doe, plaintiff in this suit, by J. E., his attorney, com- plains of Kiehard Roe, defendant in this suit, of a plea of tres- pass on the case upon promises. For that whereas, on the day of , in the year one thousand eight hundred and forty- three, at Saratoga Springs, in the county aforesaid, a certain dis- course was moved and had, by and between the said John Doe and the said Richard Eoe, of and concerning a certain paper writing, purporting to be a deed of conveyance of the lands therein described, from J. H. and E. his wife to A. B., and bearing date the day of , 1840 ; and which said deed or paper writing is set forth and described in the pleadings in a certain cause depending in the Court of Chancery of the State of New Tork, wherein A. B. is complainant and 0. D. is defend- ant ; and upon that discourse a question then and there arose and was debated between the said John Doe and the said Richard Roe, whether the said deed or paper writing was exe- cuted and delivered by the said J. H. and E. his wife. And upon such discourse the said John Doe then and there asserted md affirmed that the said deed or paper writing above men- tioned was executed and delivered by the said J. H. and E. his wife ; which assertion the said Richard Roe then and there de- nied to be true, and asserted to the contrary thereof ; and there- upon afterwards, to wit, on the same day and year first above mentioned, at the place in the county aforesaid, in considera- tion that the said John Doe, at the special instance and request of the said Richard Roe, had then and there paid to the said Richard Roe the sum of one hundred dollars, lawful money, he the said Richard Roe, undertook, and then and there faithfully 6o6 FORMS OF DEFENSES IN EQUITY. promised the said John Doe, to pay -him the sum of one hun-' dred dollars, like lawful money, in case the said deed or paper writing was executed and delivered by the said J. H. and E. his wife, as he the said John Doe had asserted as aforesaid. And the said John Doe, in fact, saith, that the said deed "or paper writing was executed and delivered by the said J. H. and E. his wife, as he the said John Doe had asserted and affirmed, to wit, on the day and year, and at the place in the county aforesaid, undertook, and then and there faithfully promised the said John Doe to pay him the said sum of money, when he the said Eich- ard Roe should be thereunto afterwards requested. Neverthe- less, the said Eichard Koe, not regarding his said promise and undertaking by him in form aforesaid made, hath not as yet paid to the said John Doe the said sum of one hundred dollars, or any part thereof, although so to do the said Eichard Eoe was requested by the said John Doe afterwards, to wit, on the same day and year last aforesaid, and often afterwards, to wit, at the place in the county aforesaid ; but to pay the same to the said John Doe the said Eichard Eoe hath hitherto altogether refused, and still doth refuse, to the damage of the said John Doe, of one hundred dollars, and therefore he brings this suit, &c. J. E., Plaintiff's Attry. Plea npon a Feigned Issne. [Title of cause.] And the said Eichard Eoe, by H. "W"., his attorney, comes and defends the wrong and injury, when, &c., and says, that the said John Doe ought not to have or maintain his aforesaid action thereof against him, because he says that though true it is that the said discourse was had and moved by and between the said John Doe and him the said Eichard Eoe, wherein the question did arise as aforesaid, and that he,, the said defendant,, did undertake and promise, in manner and form, as the said John Doe hath above in that behalf alleged ; nevertheless, for plea in this behalf, the said Eichard Eoe 'saith that the said J. H. and E. his wife did not execute and deliver the said deed or paper writing in the said plaintiff's declaration mentioned, at the time in that behalf mentioned in the said declaration, nor at any other time ; and of this he, the said defendant, puts himself upon the country, and the said plaintiff doth the like, &c. H. W., Defendants Atby. FORMS OF DEFENSES IN EQUITY. 607 Notice Of Hearing on farther direeUon. after Trial of Feigned Issue. [Title of cause.] • ?'''/S® '':?*'^® *^^*= *^^^ ''^"se will be brought to a hear mg for further directions upon the pleadingsTi" L feited issue framed therein and upon the certified copy of hb mi futes ti ffl .1'^'^ ■^'^''^^ ''"^'^ ^"^<^^ed thSeto, and Tied S the office of the register of this court, at the next term of th£ ZToi^i^X.'^^t ^^^^^^^ ^^ ^^^ ^^^^ «^ ^ W, on 1*'^^ Dated Dec. , 1843. rr, -.-^ ,^ Tours, &c. ToH.W.,Esq., ) ' J J, m.for Deft. \ Solicitor for Complainant. Note.— J«, the StaU of Maryland the form of proceeding is Tmre simvle andmay serveas apattern of the nwre simple moden practice ^ ' An onJe,- is passed in the umml form, ^^that the following issues le tried lefore a jury of county, under the directions of county court, Jz. : «1. Whether, &c. " ^1^^* i^Po^ t^e trial of said issues the complainant in this cause shaU be plaintiff and the defendant here shall be the de- fendant. And that the plaintiff shall be at liberty to read to the lury the deposition of, &c., and that the defendant, upon said trial, shall admit, &c. And the honorable judges of county court are respectfully requested to instruct the jury in relation to any question of law which may arise on the trial of the said issues." General Form of Demurrer, Plea, and Answer, WHEW USED TOGETHER AS A DEFEIfSE TO SEPAEATB PAETS OP THE BILi. In Chancer^/. Between, (be. The demuiTer, plea, and answer of A. B., the above-named defendant [^or one of the above-named defendants], to the bill of complaint [ot- amended bill of complaint] of the above-named plaintiff. (1) Demurrer.'] The defendant, A. B., by protestation, not confessing or acknowledging all or any of the matters and things in the said bill contained to be true, in such manner and form as the same are therein set forth and alleged, as to so much 6o8 FORMS OF DEFENSES IN EQUITY. of the said bill as seeks \_state what"], and also as to so much of the said bill as seeks, &c., does demur thereto. And as to the discovery and relief sought by the said blU, save so much thereof as relates to the premises therein men- tioned to be situate at S., in the county of D., for cause of de- murrer, the defendant shows that, &c. And as to so much of the said discovery and relief as relates to the said premises at S. aforesaid, for cause of demurrer he shows that, &c. "Wherefore, and for divers other good causes.appearinginthe said bill, the defendant prays the judgment of this honorable court whether he shall be compelled to make any answer to such parts .of the said bill as he has hereinbefore demurred to. (2) Plea.l And the defendant, A. B., not waiving his said several demurrers, but wholly relying thereon, as to so much of the said bill as seeks, &c., and also as to so much of the said bill as seeks, &c., does plead thereto ; and for plea says that, &c. ; and does aver that, &c. All which last-mentioned matters and things the said de- fendant does plead in bar to so much of the said bill as is here- inbefore pleaded to ; and he humbly prays judgment of this honorable court whether he ought to make any further answer to so much of the said bill as is hereinbefore pleaded to. (3) Ans-boer.'] And the defendant, A. B., not waiving his said several demurrers and plea, but wholly relying and insisting thereon, for answer to so much of the said bill as he is advised it is material or necessary for him to make answer unto, says as follows, &c. l^N'ame of Counsel^ Of Making all Defenses by Answer. Note. — In the Dissertation on Equity Pleading prefixed to this edition of Mitford, it is shown that defenses hy pleas and demurrers a/re not so much encouraged in modern practice as the making all defenses iy answer. In such answer a defense is not set out with all the special drcumstaneea which would lie deemed necessary in a plea. And in some cases such, mode of mahing de- fense may lie more convenient and economical, and more conduce to dispatch in the final disposition of the cause ; iut at the same time, as is shown in the dis- sertation just mentioned, it has confused the system of pleading, and should ie used with caution and intelligent discrimination of the special function of each form of defense. The following is the form of an answer, embracing all mat- ters of defense applicable to the case in which it was used. It will serve as a model in framing such an answer, accommodated to the vairying circumstances of each ease .* FORMS OF DEFENSES IN EQUITY. 609 Form of making all Defenses by Answer. AN ANSWEE TO A BILL FOE AJST INJUNOTION TO STAT PEOCEEDINGS AT LAW ON A JUDGMENT. This defendant admits that, at term of court he recovered a Judgment against the complainant for the sum of _ , bemg the amount due him, as the holder of certain promissory notes, mentioned and described in the bill of com- plaint, as drawn by the said complainant, payable to one B., and by him indorsed to this defendant. And as the said judgment was recovered without any fraud on his part, &c., it remains in full force and unreversed ; and as all the objections now pre- tended against it in said bill were inquirable into at law, and if shown to be true, might have been used as defenses in his afore- said action at law, this defendant relies on his aforesaid judgment, and pleads the same ia bar of aU the relief which the complain- ant now seeks by his bill. And this defendant avers that he knows nothing whatever of the transactions between the complainant and the said B., and out of which the pretended equities of the complainant are supposed to arise, and can neither admit nor deny the charges in the bill in that behalf. He insists that aU inquiry into these matters is precluded by the judgment aforesaid; but if it shall be considered by this court that they are still open for examina- tion in this suit, he is advised to insist that the said B. is a necessary party to this suit to aid this defendant in his defense thereof. And this defendant avers that he acquired the aforesaid promissory notes, before they or any of them became payable^ bona fide, for a full and valuable consideration, and without notice of any of the equities or defenses now pretended by the complainant against them ; he is therefore advised, and insists that his right as the holder thereof cannot be affected by proof now adduced of any latent equities existing between the original parties to the said notes. And as to the matters of account whichare pretended in said bill to be remaining unsettled between the complainant and this defendant, in respect of which a large balance of money is pretended to be due from this defendant to the complainant, this defendant says that upon the complainant's own showing, they are matters for the cognizance of a court of common law, and he therefore insists that this court has no jurisdiction to examine into them, or to grant any relief to the complainant in respect thereof ; and he more especially rehes on and pleads the judgment aforesaid against the claim of the said complainant to have the balance to be found due on the taking aoi account of 39 6lO FORMS OF DEFENSES IN EQUITY. the aforesaid matters set off or discounted from the sum recor- ered by said judgment. And this defendant further says that if the complainant ever had any cause of euit or action against this defendant for or in respect of the aforesaid matters of account, or any of them, the same did accrue unto him upwards of three years before the fiUng of the present bill, or suing out process thereon against this defendant, and upwards of three years before this defendant became the holder of the aforesaid promissory notes ; and he pleads the act for limitation of action^ and so forth against all the relief which the complainant seeks in respect thereof. And this defendant, insisting on his aforesaid defenses, and praying to have the same benefit thereof as if they were herein specially pleaded, for further answer admits, &c., &c. [Answer the several allegations in the hill / and as the hill usually charges fraud and combination, the atiswer should conclude as fol- lows .•] And this defendant denies all and all manner of fraud and conspiracy with which he is charged by said bill, and prays that the injunction heretofore granted in the cause may be dissolved, and that he may be hence dismissed, with his reasonable costs in this cause sustained. And as in duty bound he will ever pray, &c. Disclaimer. The disclaimer of A. to the hill of complaint of B. againsthim in this court exhibited.. This defendant says that he does not know or believe that he ever had, nor did claim or pretend to have, nor doth he now claim or pretend ,,to have any right, title, or interest of, in, or to the estates and. premises in the said bill set forth, or any part thereof ; and this defendant doth disclaim all right, title, and interest to or m the said estates and premises, and every part thereof. And prays to be dismissed, with costs, &c. Note. — This disclaimer must ie under oath as an answer. Form of Oeneral Replication. This repliant, saving and reserving to himself all and all manner of advantage oi exception to the manifold insufficiencies of the said answer, for replication thereto saith, that he will aver and prove his said bill to be true, certain, and sufficient in FORMS OF DEFENSES IN EQUITY. 6ll law to be answered imto ; and that the said answer of the said defendant isuncertain, untrue, and insufficient to be replied to by this repliant without this, that any other matter or thing whatsoever in the said answer contained, material or effectual in the law to be replied unto, confessed, and avoided, traversed, or denied, is true ; all which matters and things this repliant* is and wiU be ready to aver and prove, as this honorable court shall direct ; and humbly prays, as in and by his said bill he hath already prayed. Note. — It is not usual to file a general replication, but to give a short order in writing to the register to enter a general replication. In Maryland it is thus : " A. vs. B. Mr. , enter a general replication to the defendants answer.'''' By rule in Massachusetts, the plaintiff enters, ^'' That he joins issue on the answer.'''' III. FORMS OF INTERLOCUTORY AND FINAL PROCEEDINGS. Form of Exception§ to tbe Defendant's Answer. In Equity. A. vs. B. To the Honorable The plaintiff prays leave to except to the answer filed by the defendant in this cause : 1. For that, ro confesso as against the non-resident defendant D. And it is further. adjudged, ordered, and decreed, &c., &c., &c. [giving relief in common form\ Note. — As these decrees are statutory confessions of all the averments in the Mil, the statutes of the States where they are authorised must he examined for their peculiar provisions. But the above form and directions will serve as a common guide. Order of Reference in Foreclosure Suit. — All Dne.— Infant Defendants. [Title of cause.] At a Court of Chancery, held for the State of New York at , on the day of , 1843. Present, Eedben H. Walwoeth, Chancellor. The bill in this cause having been taken as confessed by the adult defendant, and the infant defendants having put in a general ahswer by their guardian ad litem; on motion of I. E., complainant's solicitor, it is ordered, that it be referred to a master in this court, residing in the county of Saratoga, to take proof of the material facts stated in said bill, and report the same to this court ; and also to compute and ascertain the amount due to the complainant for principal and interest on the bond and mortgage set forth in said bill, and report the same to this court. AND FINAL PROCEEDINGS. 619 master's KEPOET of AMOtTNT DUE ON BOND AND MORTGAGE ON BILL TAKEN AS CONFESSED ALL DUE. ITiile of cause.] To the Chancellor of the State of New York. In pursuance and in virtue of an order of this court, made in the above case, and bearing date the day of in the year one thousand eight hundred and forty- , by which it was referred to one of the masters of this court, to compute, ascertain and report the amount due to the complainant for principal and interest on the bond and mortgage mentioned and set forth in his bill of complaint, filed in this cause, and report thereon to this court, with all convenient speed : I, the sub- scriber, one of the masters of this court, residing in the county of Saratoga, do respectfully certify and report, that I have com- puted and ascertained the amount due to the complainant in this cause as aforesaid, and that the amount so due on the said bond and mortgage, for the principal and interest up to and in- cluding the date of this report, is the sum of dollars. And I do further certify and report, that the schedule here- unto annexed, marked A, and making a part of this my report, contains a statement and account of the principal and interest moneys due to the complainant aforesaid, the period of the com- putation of the interest and its rate, and to which, for greater certainty I refer. All of which is respectfully submitted. P. Gr. E., Master in Chancery. Dated, January 10th, 1844. SCHEDTJLE MARKED A, REFERRED TO IN THE FOREGOING REPORT. One bond, dated June 10th, 1841, in the penal sum of $1,000, conditioned to pay $500 as follows, viz. : on the first day of January, 1842, with interest, which bond is accompanied by a mortgage of the same date. Principal sum due $500 00 Interest thereon from June 10th, 1841, to January 10th, 1844, being 2 years and T months, at seven per centum, per an- num, is 89 00 Amount due complainant this 10th day of January, 1844 $589 00 P. G. E., Master in Chancery. 620 FORMS OF INTERLOCUTORY Sfotice of Motion, [Title of cause.'] Sir : Take notice that I intend to move this honorable court, at the next [special] term thereof, to be held at the Capitol in the city of Albany, on the day of next, at the opening of the court on that day, or as soon thereafter as counsel can be heard, for an order that [specify the object of the inotion] ; and for such further or for such other order or relief as the court may think proper to grant ; which motion will be founded on affidavits, with copies of which you are herewith served [and on the Mil and answer filed in this cause]. Yours, &c., W. H., Solicitor for Defendant. Dated, December , 1843. To I. E., Esq., Solicitor' for Complavnant. Affidavit of Service of Notice of IHotion. State of New York, \ , Saratoga County, j W. H., of the city of Troy, in said county, the defendant's solicitor, being duly sworn, deposeth and saith, that on the day of instant, this deponent served upon I. E., Esq., the solicitor for the complainant in this cause, copies of the affidavits and notice of motion hereto annexed, by delivering the same to him personally. And further saith not. W. H. Sworn, etc. Petition for Leave to File Supplemental BUI. In Chancery. Before the Cham,cellor. [Title of the cause.] To the Chancellor of the State of New YorTc : The petition of A. B., the above complaiuant, respectfully showeth, that on or about the day of , your peti- tioner filed his bill in this honorable court against C. D., for the AND FINAL PROCEEDINGS. 62 1 purpose of {state general object of the original UlT\ and praying [state the prayer verbatim.'] And yoTir petitioner further shows that the said 0. D., being served with process of subpoena, appeared to the said bill, but has not yet put in his answer thereto. That after the appear- ance of said defendant was entered, that is to say, on or about the day of , and before any further proceedings were had in the said cause [state the supplemental matter'] ; wherefore, your petitioner is advised, that it is necessary to bring the said C. H. "W". before this court, as a party defendant to this suit. Tour petitioner therefore prays that leave may be granted to him to file a supplemental bill against the said C. H. W. for the purpose of making him a party defendant to this suit, with proper and apt words to charge him as such, and with such prayer for relief as may be proper, and for such other^ &c. Plea to Supplemental Bill. In Chancery. Before the ChoMcellw. The plea of G. D., defendant, to the supplemental bill of A. B., complainant. This defendant, by protestation not confessing or acknowledg- ing all, or any, of the matters and things in the said complainant's bill of complaint mentioned and contained to be true, in such sort, manner and form as the same are therein set forth and alleged for plea to the whole of the said bill, says that the sev- eral matters and things in the said complainant's present bill stated and set forth by way of supplement, arose, and were well known to the said complaioant, before and at the time the said complainant filed his original bill in this cause ; and that such said several matters and things can now be introduced, and ought so to be, if necessary, by amending the said original bill. Wherefore this defendant doth plead the aforesaid matters and things to the said complainant's bOl, and prays the -judgment of this honorable court, whether he should be compelled to make any further answer to the said bill, and prays to be hence dis- missed with his reasonable costs and charges in this behalf most wrongfully sustained. C. K D., SoVrfor Defendant. 3. E,, of Counsel. 622 FORMS OF INTERLOCUTORY Petition that Trustees, under a Declaration of Trust, report their Proceedings, and Trustees under a Will come to an Account. Samuel S. Metees, &c. vs. William E. Metees & othees. In Chancery. To the Honorable John Johnson, Chancellor of Maryland: Tlie petition of Ezra Houck, of Frederick county, respect- fully shows : That an order was passed by your honor, on the 28th day of March, 1851, in . this cause, directing Samuel S. Meyers and James Williams, trustees under a declaration of trust filed in this cause, to invest the amount then received and to be received, of a certain bond of fifteen thousand dollars, in the joint names of Franklin Meyers and Charles J. Myers, in- fant children of Charles H. Meyers, deceased. That since the date of that order, to wit, on or about the Yth day of July, 1851, Charles J. Meyers, one of said infant children, has departed this life, and that on the 12th day of January, 1852, letters of administration were granted by the orphans' court of Frederick county, to your petitioner, upon the-estate of said infant child deceased, as will appear by the certificate of the register of wills of Frederick county, herewith filed. That also, since the date of that order, to wit, on the 12th day of May, 1851, your petitioner was appointed by the orphans' court of Frederick county, guardian to both Franklin Meyers and Charles J. Meyers; as wiU appear by the certificates of the register of wills of Frederick county herewith filed. Tour petitioner further shows, that the said Samuel S. Meyers and James Williams, trustees, have made no report to your honor of their proceedings under and by virtue of your order of the 28th day of March, 1851, but have neglected so to do up to this time, whereby your petitioner is unable to know the condition of the estate of the said infant children, and is prevented from taking it under his control as guardian and ad- ministrator. Tour petitioner further shows that Samuel S. Meyers, James Williams and Joshua S. Inloes, the executors and trustees under the last will and testament and the several codicils of the late Jacob Meyers, deceased, have not settled an account in your AND FINAL PROCEEDINGS. 623 honorable court, since May, 1850; whereby your petitioner is unable to know what is the condition of the estate of the said Jacob Meyers, and what is the amount still due from said estate to the mfant children of the late Charles H. Meyers, deceased and cannot on that account discharge his duties and exercise his rights as guardian and administrator aforesaid. Tour petitioner further charges that there are large arrear- ages of mterest due to the said infant children from the estate of Jacob Meyers, but the exact amount of which your peti- tioner cannot ascertain until the trustees settle their account in your honorable court. ^ Tour petitioner therefore prays your honor to order that the said Samuel S. Meyers and James Williams, trustees under the said declaration of trust, report to your honor by a certain day, their proceedings under and by virtue of the order in chancery of the 28th day of March, 1851 ; and also that Samuel S. Meyers, James Williams and Joshua S. Inloes, the trustees under the will of Jacob Meyers, deceased, come to an account in your honorable court of the estate of the said Jacob Meyers, deceased ; and your petitioner prays for such other and further rehef in the premises as to your honor shall seem meet. And your petitioner will ever pray. S. T., SoVrfor Petitioner. Attachment against Trustees for not Reporting^. Ths State of Maryland, To the Sheriff of Frederich County, greeting : Tou are hereby commanded, that you attach the bodies of Samuel Meyers and James Williams, if they shall be found in your bailiwick, and them safely keep, so that you have them be- fore the Chancellor of Maryland, at the city of Annapolis, on the day of next, to answer, as well touching a cer- tain contempt by them committed in not filing their report of their proceedings under a declaration of trust, as they were re- quired to do by an order passed in this our Court of Chancery, on the 28th day of March, 1851, and as to such other matters and things as shall be then and there alleged against them. Hereof fail not, as you will answer to the contrary at your peril. Witness the honorable John Johnson, Chancellor of Mary- land, the day of , in the year of our Lord eighteen hundred and fifty-two. Issued the day of , 1852. , Register, 624 FORMS OF- INTERLOCUTORY Decree for Partition bet^veen Joint Tenant§ or Tenants in Common. [For the commencement, see form on p. 613, to the *.] That there be a partition of the tract or parcel of land in the proceedings mentioned, called B. A., amongst the parties to this suit, so that nine parts thereof, in twelve parts to be divided, shall be allotted to the complainant A., and two other parts thereof, in twelve parts to be divided, shall be allotted to the complainant B., and the remaining one-twelfth part thereof shall be allotted to the defendant G. And to enable this court to make the said partition, it is further adjudged, ordered and decreed, that a commission issue in the usual form to [5 fersons\ of county, authorizing them or any four or three of them, to enter upon, walk over, and survey the said land, and to divide the same into twelve equal parts, having regard to quantity and quality, whereof nine contiguous parts shall be allotted to the said complainant A., and two contiguous parts shall be allotted to the said complain- ant B., and one part shall be allotted to the said defendant C. ; that the said commissioners make out, or cause to be made out, a plot and certificate of said land, and of the division thereof, with the beginning and courses, and an accurate description of the estate, and of the parts thereof ; and to the said commission there shall be annexed the usual oath of office. Commi§sion for Partition, Maryland, 8. C. The State of Maryland, to A., £., C, D. and E., of county, greeting : Know ye, that we have, pursuant to an order of our High Court of Chancery, this day passed in a cause therein, between A. and B., complainants, and C, defendant, fully authorized and empowered you, or any four or three of you, to go to, enter upon, walk over and survey the tract or parcel of land in the proceedings in the cause mentioned, called Black Acre, lying and being in county, and to divide the same into twelve equal parts, having regard to quantity and quality, and to allot nine parts thereof to the complainant A., and two parts thereof to the complainant B., and the remaining part to the defendant C. ; and that you make out, or cause to be made out, a plot of said land, with a certificate of the beginning and courses, and an AND FINAL PROCEEDINGS. 625 accurate description thereof, and of each part, according, to the dmsion by joumade; and that you carf upon the parties to produce all such deeds, writings and muniments relating to the said estate as may be m their power; and that you examine and take the depositions of witnesses relating to the matters in ques tion,asyoumaythmkiit; and when you shall have done so you, or any four or three of you who shall act, are to certify and return into our Court of Chancery, without delay, your acts and proceedings m the premises, together with the plots de- scriptions and documentary or other evidence made, produced to, or taken by you, by your certificate, distinctly and plainly written, closed up, and under your several seals, or the seals of such lour or three of you as shall act: provided, nevertheless that, before you or any of you shall act in the premises, you, or such of you as are to act, shall each take the oath hereun+o an- nexed ; and we do give full power and authority to any two or one of you, jointly or severally, to administer such oath on the holy Evangels. Witness, the Honorable T. B., Chancellor, this day of ■' Cominis§ioner's Oath. You shall, according to the best of your skill and judgment, make the partition as directed by the foregoing commission, and in all things truly and faithfully execute the powers given, and perform the duties required of you by the said commission, without favor or partiality to, or prejudice or ill will against any person whatsoever interested therein. Return of Commissioners to make Partition. To the Honorable T. B., Chancellor of Maryland. The subscribers, commissioners appointed by a commission issued out of the Court of Chancery, in a cause wherein A. and others are complainants, and 0. and others are defendants, and which commission is hereunto annexed, do hereby certify that after having taken the oath annexed imto the said commission for us to be taken, and given notice to the parties of the time and place of our meeting, we did, in pursuance of said notice, meet on the said land mentioned in the commission, on the day of , and did walk and ride over the said land, and 40 626 FORMS OF INTERLOCUTORY s caused the same to be surveyed and divided into three parts, as directed by said commission, by , a deputy surveyor of county, who was appointed by us for the purpose, in the manner following, to wit : Beginning, for the outlines of the whole tract, at and run- ning, &c., &c., &c. And beginning, for lot No. 1, being parcel of said tract, at the beginning of the whole tract, and running thence, &c., &c., &c. ; which said lot is, in our opinion, in quantity and quality, equal to two twelfth parts of the whole tract of land, and is by us allotted to the complainant, B. And beginning, for lot No. 2, being parcel of said tract, at, &c., &c. ; which said lot, in our opinion, is equal in quantity and quality to nine parts in twelve of the whole tract ; and we have allotted the same to the complainant, A. And beginning, for lot No. 3, being, &c., &c., &c. All which proceedings, with a plot of said land, and of the divisions thereof, and the aforesaid commission, we return close under our hands and seals, this day of [L. S.] [L. S.= [L. S.^ [L. S.^ [L. s.; Note. — All these papers are attached to the commission, whicTi is then closed and thus indorsed : The execution of this commission will appear by certain schedules thereunto annexed. [L. S.' [L. s; [L. S.] [L. S.= [L. s.; Note. — As the commission is the only warrant to the commissioners, it must contain all special directions contained in the decree. AND FINAL PROCEEDINGS. 627 Common Form of a Final Decree for Partition. A. &B. vs. C. &D. >- In Clicmcery. Term, 18 — . This cause standing ready for hearing, and being submitted. and no exception being taken to the return of the commissioners appointed to make partition of the real estate mentioned in the proceedings, as allowed by the rules of this court, the proceed- ings were read and considered. It is thereupon, this day of , by T. B., Chan- cellor, and by the authority of this court, adjudged, ordered, and decreed, that the return of the commissioners appointed to make partition of the real estate in the proceedings mentioned, and the partition thereof by them made, be, and the same is hereby r'atihed and confirmed. And it is further adjudged, ordered, and decreed, that the complainant, B., shall hold in severalty, and not jointly or in common with the other parties to this suit, all that part of the land in the proceedings mentioned, which is described in the re- turn of the aforesaid commissioners, and the plot accompanying the same, as lot No. 1, and beginning for the same (it being part of the tract or parcel of land called B. A.) at the beginning of the whole tract, and running thence, &c., &c. And it is adjudged, ordered, and decreed, that the complain- ant, A., shall hold in severalty, &c., &c. And it is further adjudged, ordered, and decreed, that the costs of the aforesaid partition, and other costs of this suit, be defrayed by the aforesaid parties, in proportion to their respective interests, as established by the interlocutory decree heretofore passed in this cause. Decree declaring a Oen or Charge upon an E§tatc FOE THE DSrCEEASED VAiTJE BY IMPKOVEMENTS MADE BY A BONA rroE PTJECHASEE, FOE A VALUABLE CONSIDEEATION, WITHOUT NOTICE OF ANY DEFECTS IN THE TITLE. First mterlocutory decree in the case of John Bright in equity against John W. Boyd. And now, at this term, the cause came on to be heard upon hill, answer, pleadings, evidence, and other proceedings in the 628 FORMS OF INTERLOCUTORY cause, and was argued by counsel. On consideration whereof, it is ordered, adjudged, and declared by tKe court, that is to say, that it appears to the court that the plaintiff is the purchaser, for a valuable consideration, of a defective title, without notice of the defect therein, and that improvements have been made, by the plaintiff, or his grantors, on the premises of the defend- ant, under a mistake of the title, and that he is entitled to relief in equity. That it be referred to a master, if the parties do not other- wise agree, to ascertain the character £ind value of said improve- ments, by whom made, and at what time they were made. Also, that the master ascertain and report of the value of the rents and profits of the land on which said improvements are made, and state an account thereof. Also, to ascertain and re- port the present value of the said land without the improvements, and how far the value of said land is increased by said improve- ments. And that the master is to ascertain the foregoing facts, as well by the examination of witnesses as by the examination of the parties, and by other suitable proofs, and to make report thereof to the court. And that the master be clothed with all proper powers for the purposes aforesaid; and that further * orders and decrees in the premises be reserved until the coming in of the report. Beport of the master. The master to whom it was referred to ascertain the charac- ter and value of the improvements on the lot in controversy, by whom made, and at what time they were made, and to ascertain and report upon the value of the rents and profits of the land on which said improvements are made, and state an account thereof ; also, to ascertain and report the present value of the land without the improvements; reports that, as far as he has been able to ascertain, the improvements upon said lots were made by John E. Marshall ; they consist of a double wooden tenement of two stories, which was built in the years 1834: and 1835, and completed in the early part of the summer of 1838 ; that the said improvements are worth nine hundred and seventy- five dollars ; and that the land without the improvements would be worth at this time twenty-five dollars ; and that the land, with the improvements, is now worth one thousand dollars, so that the value of the land is increased by the improvements nine hundred and seventy-five dollars ; and that, in his opinion, there would have been no rents and profits from said land if no improvements had been made thereon. H. W. Fees, $ . AND FINAL PROCEEDINGS. 629 Final decree. And now, on coming in of the master's report, it is ordered, that th^e same be accepted and allowed. _ And it is further ordered, adjudged, and declared, that the said improvements, to the value of nine hundred and seventy- five dollars, are a lien upon the whole of the premises described in the plaintiEE's bill, and that one-quarter part of the said premises stand charged with one-quarter of the said improve- ments. And it is further ordered, that unless one-quarter part of the said sum of nine hundred and seventy-five dollars is paid by the defendant to the plaintiff by the next term of said court, one- quarter part of the whole of the said premises, with the improve- ments thereon, shall be sold, and the proceeds thereof, to an amount not exceeding one-quarter of nine hundred and seventy- five dollars, shall be paid over to the plaintiff. And it is further ordered, that all farther orders and decrees in the premises be reserved until the further order of court. (Bright V. Boyd, 2 Story, 607.) Decree for a Sale of mortgaged Premises. T c. vs. D. In Chancery. September Term^ 18 This "cause standing ready for hearing, and being submitted without argument, the proceedings were read and considered. It is, thereupon, this day of , in the year of our Lord eighteen hundred and , by T. B., Chancellor, and by the authority of this court, adjudged, ordered and decreed \that, unless the defendcmt shall on or lefore the next, pay, or hring into' this court to he paid, unto the complainant ihe'sum of $ , with interest thereon from the , unt%l paid or hrought in as aforesaid, together with the complainant's costs of this suit to he taxed hy the register, the mortgaged premises in the proceedings mentioned, or so much thereof as may he necessary for the purpose, he sold}. That I P., of county, be, and he is hereby, appomted trustee to" make such sale; and the course and manner of his 630 FORMS OF INTERLOCUTORY proceeding chall be as follows : He shall first file in the chan- cery ofiice a bond to the State of Maryland, executed by him- self, with a surety or sureties to be approved by the chancellor, in the penalty of ten thousand dollars, conditioned fbr the faithful performance of the trust reposed in him by this decree, or which may be reposed in him by any future order or decree in the premises. He shall then proceed to make sale of the said mortgaged premises, having first given at least weeks pre- vious notice in some newspaper printed in aforesaid, and such other notice as he may think proper, of the time, place, manner, and terms of sale, which terms shall be as follows : The purchase money to be paid in equal installments, in one, two and three years from the day of sale — the whole purchase money to bear interest from the day of sale, and the payment thereof to be secured by the bonds of the purchaser, with a surety or sure- ties to be approved by the trustee [or cash to be paid on the day of sale, or on the ratifioation thereof hy the chaficellor] . And, as soon as may be convenient after such sale or sales, the said trustee shall return to this court a full and particular account of the same, with an affidavit of the truth thereof, and of the fairness of such sale or sales, annexed. And on the rati- fication of such sale or sales by the chancellor, and on the pay- ment of the whole purchase money, and not before, the said trustee, by a good and sufficient deed, to be executed and ac- knowledged agreeably to law, shall convey to the purchaser or purchasers of said property, and to his, her, or their heirs, the property to him, her, or them sold, free, clear, and discharged of all claim of the parties to this cause, and of any person or persons claiming by, from or under them. And the said trustee shall bring into this court the money arising on such sale or sales, and the bonds or notes which may be taken for the same, to be disposed of under the direction of this court, after deduct- ing therefrom the costs of this suit, and such commission to the trustee as the chancellor shall think proper to allow in consid- eration of the skill, attention and fidelity wherewith he shall appear to have discharged his trust. Note. — TJie foregoing general form of a decree for a sale may be con- verted into decrees for sales, for the purposes which folhw. Decree for a Sate for the purpose of Partition. By striking out the words in italics and included within brackets, and inserting : That the real estate in the proceedings mentioned be sold for the purpose of partition between the parties. AND FINAL PROCEEDINGS. g^I Decree for a Sale on a Creditor'§ IBiJl, By striUng out the same words in italics, and inserting : That the real estate of A. B., deceased, in the proceedino-s mentioned, or so much thereof as may be necessary for the nav- ment of his debts, be sold. ^ ^ At the end of this decree, there ought to le added : And, at the time of advertising said sale, the trustee is di- rected to give notice to the creditors of the said A. B., deceased to file their claims, with the vouchers thereof, in the chancery office within months from the day of sale. Note.— 7%« executor or administrator is usually a party to a creditor's suit. And if the personal estate is unsettled, the decree ought to contain, at the end thereof, a clause directing the executor or administrator to account for the personal assets in his hands. Decree Annulling a Conveyance a§ Fraudulent in favor of Creditors, and Directing: a Sale. [For commencement see the form on p. 613 to *.] That the deed in the proceedings mentioned from the de- fendant A. to the defendant B., dated the day of , be, and the same is hereby, declared and taken to be utterly null and void as against the complainant, and all other creditors ' of the said defendant A. who may come in as parties to this suit ; and that the property in the said deed mentioned, or so much thereof as may be necessary to discharge such claims, be sold. That, &c. \in the common form of a decree for a sale, and con- cluding with a direction that the trustee gi/ve notice to the cred- itors of A. to file their claims']. Decree Vacating: a Conveyance as Fraudulent in favor of a Purchaser at a SIieriflT's Sale. [For commencement see the form on jp. 613 to *.] That the deed in the proceedings mentioned from the de- fendant A. to the defendants B. and C, bearing date on the day of , and the record thereof, be, and the same are hereby, set aside, and declared to be held and taken to be utterly null and void to all intents and purposes whatever, so 632 FORMS OF INTERLOCUTORY far as the same may interfere with, or in any manner affect, the right and claim of the complainant as purchaser of the several parcels of land specified in the said retura to the writ of fieri facias in the proceedings mentioned ; and that the said defend- ants pay to the complainant his costs of suit to be taxed by the register. Decree for Payment of Pureliase Money and a Convey- ance; and in Default of Payment, tben a Sale. [For commencement see the form on p. 613 to *.] That the defendant forthwith pay, or bring into this court to be paid unto the complainant the sum of $ , the same being the balance of purchase money due for the lands, &c., in the proceedings mentioned, together with interest thereon from the day of , until so paid or brought in, and the complainant's costs of suit to be taxed by the register. And that, upon payment of the aforesaid sum of money, with inter- est and costs as aforesaid, or bringing the same into this court, the complainant, by a good and sufficient deed, to be executed and acknowledged agreeably to law (and wherein the said com- plainant shall procure his wife, A. B., to join for the purpose of barring her title to dower in said premises) shall convey unto the said defendant and his heirs the land and premises in th^ proceedings mentioned and described as sold by the said com- plainant to the said defendant, and all right, title, interest and estate of the complainant in and to the same. And the said deed shall contain a covenant, &c., &c. And it is further adjudged, ordered, and decreed, that, un- less the defendant shall pay, or bring into this court to be paid unto the complainant the aforesaid sum of money, with interest and costs as aforesaid, on or before the instant, the afore- said lands and premises, or so much thereof as may be necessary to discharge the complainant's claim then remaining unsatisfied, be sold. That, &c., &c. [accordinff to the general jorm of a de- cree for a sale}. c. vs. D. AND FINAL PROCEEDINGS. 633 Trustee's Report of a Sale. In Chancery. To the Honorable, the Chancellor of Maryland. The report of A. B., trustee appointed by the decree in this cause to make sale of certain real estate therein mentioned, shows that, after giving bond with security for the faithful dis- charge of his trust, as required by said decree, and giving notice of the time, place, manner, and terms of sale by advertisements in the. , a newspaper printed at Annapolis, for more than three successive weeks before the day of sale, and by handbills extensively circulated throughout said city and Anne Arundel county, he did, pursuant to said notice, attend, at the tavern of Swann and Iglehart, in said city, on Tuesday, the second day of October, in the year eighteen hundred and thirty-eight, at twelve o'clock, M., and then and there proceeded to sell said real estate as follows, to wit : Your trustee first offered at pubUc sale to the highest bidder the dwelling-house of the said M., situated in the city of Annapolis, and sold the same to E., he being then and there the highest bidder therefor, at and for the sum of five thousand dollars ; and he has since taken the bonds of the said E., with F. and G. as his sureties, for the payment of the said sum in equal moieties, with interest thereon, in one and two years. He next offered for sale the plantation or farm of the said M., deceased, in Anne Arundel county, containing one thousand acres or thereabouts, and received therefor a bid of eight dollars per acre ; deeming this wholly inadequate to the v5ue of the land, he adjourned the sale thereof. Your trustee further states, that since that time he caused the said plantation to be accurately surveyed by the surveyor of said county, and to be divided into lots, as appears by the plot accompanying this report ; and after giving notice in the manner before stated, of the time, place, manner and terms of sale, he did, pursuant to such notice, attend on the premises on, &c., &c., and then and there sold parcels thereof as follows : . , , Lot No. 1, containing 275 acres, he sold to H. of said county, at and for the price of $20 an acre, the whole purchase money amounting to $5,500. And he has since taken bonds ot the said H., &c., &c. 634 FORMS OF INTERLOCUTORY Lot No. 2, containing 300 acres, was struck off to one M., at $15 an acre, he being then and there the highest bidder for the same. But the said M. has refused, and still refuses to give bonds to your trustee, to secure the payment of the purchase money agreeably to the terms of sale. Lot No. 3, there was no bidder for. Since the date afore- said, to wit, on the day of _ , your trustee has sold said lot containing 400 acres, at private sale, to one N"., for $12 an acre, on credits of one, two, three, four and five years from the day of sale; and he has taken the bonds of the said pur- chaser, with O. and P., his sureties, for the punctual payment of said installments, with interest from the day of sale. And your trustee further reports, that at the time of adver- tising said sales, he gave notice to the creditors of the said C. I)., deceased, to file their claims, with the vouchers thereof, in the chancery ofiice, within four months from the day of sale. Which is respectfully submitted. Anne Arundel county, to wit . On this day of , before the subscriber, a justice of the peace in and for said county, personally appeared the within named A. B., trustee, and made oath that the matters and things stated in the foregoing report are true to the best ot his knowledge and belief, and that the sales therein reported were fairly made. Conditional Order of Ratification, In Chancery. Sept. Ordered, that the sales made and reported by A. B., trustee for the sale of the real estate of C D., deceased (other than the sale made to M., which is hereby absolutely rejected), be rati- fied and confirmed, unless cause to the contrary thereof be shown on or before the day of November next, provided a copy of this order be inserted in some newspaper printed at once in each of three successive weeks before the day of October next. The report states the amount of sales to be $15,300. AND FINAL PROCEEDINGS. SzK Final Order of Ratification. [ Usually written with the conditional order on the report.] In Chancery. JVov. Ordered, that the sales within reported be, and the same are hereby ratifaed and confirmed, no cause to tlie contrary thereof having been shown, although notice appears to have been given as directed by the preceding order. The trustee is allowed for commission and all expenses, the sura of Petition of Trustee against a l>elJniiiMeiit Furcliaser. c. ^■s. \ In Chancery. D. To the Honorable T. B., Chancellor of Maryland: The petition of A. B., Trustee, appointed by the decree in this cause to sell the real estate in the proceedings mentioned, humbly shows, that in execution of the authority vested in him by said decree, he did on the day of , sell unto a certain E. of county, a parcel of said estate, consisting of , and more particularly described in his report of said sale, at and for the sum of one thousand dollars, which was to be paid on the day of sale, or on the ratification thereof by this court; and that said sale has been duly reported to and ratified by this court, as by said report and the proceedings thereon, now remaining in this court, will appear. And your petitioner further charges that the said E. has paid no part of the aforesaid purchase money, although he has notice of the ratification of said sale, so made to him as afore- said, and. has been xequired by your petitioner to pay the same. Tour petitioner, therefore, prays that the said E. may be compelled by a decree or order of this court, to paythe afore- said purchase money with interest thereon, and in default thereof, that the aforesaid parcel of real estate may be decreed to be sold for the purpose of raising the same, or such other or further relief granted unto your petitioner, as his case may re- quire. And as, &c. 636 FORMS OF INTERLOCUTORY Conditionail Order on tlie Petition. In Chancery. On the foregoing petition it is ordered, that the said E. bring into this court the said sum of one thousand dollars, with interest thereon, from , or show good cause to the contrary on or before the next ; provided, a copy of the forego- ing petition be served on the said E. on or before the instant. Final Order on tbe Petition. In Chcmcery. A copy of the within petition and order having been duly served on the said E., and he having failed to bring the sum of money therein mentioned into court, or to show cause to the ' contrary, it is thereupon ordered, that the said E. forthwith bring into this court the aforesaid sum of one thousand dollars, •with interest thereon from the until brought in, to- gether with the costs of this proceeding. Final Order directing a Sale, ivitli a Speeial Direction. In Chancery. A copy of the order of the , passed on the petition of the trustee, having been duly served on the said E. therein named, and the said E. having failed to bring into court the sum of money, with interest therein mentioned, or to show cause to the contrary, it is thereupon, on motion of the trustee, ordered that the real estate in the said petition men- tioned be sold for the payment of the purchase money thereof, ■with interest as aforesaid, and the costs of this proceeding by the said trustee, in the manner directed by the original decree, for cash, to be paid on tlie day of sale ; and that the said sale be at the risk of the said E. And if the highest bidder at sale shall fail then and there immediately to pay the purchase money, the trustee may reject such bid, and accept the next highest bid upon the same terms ; and if the next highest bid- der shall also then and there fail to pay the purchase money, the trustee may reject his bid also, and postpone the sale to some other day. AND FINAL PROCEEDINGS. 637 Bond toy a Trn§tee appointed to sell Real or Personal Estate. Know all men by these presents, that we, A., B. and C, of county, in the State of Maryland, are held and iirmly bound unto the said State of Maryland, in the full and just sum of , current money, to be paid to the said State of Maryland, or its certain attorney; for which payment well and truly to be made and done, we bind ourselves and each of us, our and each of onr heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year eighteen hun- dred and thirty. Whereas, by a decree in the Chancery Court of Maryland, hearinof date on the day of , eighteen hundred and thirty, and passed in a cause in the said court, wherein D. and others were complainants, and E. and others were defendants, the above bound A. has been appointed trustee to make sale of certain real estate in the proceedings in said cause men- tioned : Now, the condition of the above obligation is such, that if the above bound A. do and shall well and faithfully perform the trust reposed in him by said decree, or that may be reposed in him by any future decree or order in the premises, then the above obligation to be void, otherwise to remain in fall force and virtue in law. Signed, sealed and delivered ) in the presence of ) [l. b. [l. s. [l. s. The lond of a receiver is in the same form, with the neces- sary verhal alterations. Condition of Injunction Bond. "Whereas, the said A. is about to obtain from the Court of Chancery an injunction to stay proceedings at law, on a judg- ment rendered against him in county court, m favor ot the said , for the sum of , -l 'j! ii, Kow, the condition of this obligation is such, that it the said A. shall prosecute the said writ of injunction with ettect, and satisfy and pay as well tiie debt, damages and charges that 638 FORMS OF INTERLOCUTORY shall occur in the Court of Chancery, or be occasioned by the delay of execution on the said judgment, unless the Court of Chancery shall decree to the contrary, and shall in all things obey such order and decree as the Court of Chancery sh^l make in the premises, then the above obligation to be void, else to be and remain in full force and virtue. Trustee's I>eed. This Indenture, made this day of , in the year eighteen hundred and , between A. B. of county, of the one part, and C. D. of county, of the other part. Whereas, by a decree of the Court of Chancery of Mary- land, dated on the day of , in the year eighteen hundred and , and passed in the cause in said court, be- tween E. and others, complainants, and F. and others, defend- ants, tlie above-named A. B. was appointed a trustee, with au- thority to sell the real estate in the proceedings in said cause mentioned ; and the said trustee, after complying with all the previous requisites of the decree, did, on or about the day of , in the year eighteen hundred and , sell unto the said C. D. the following parcels of said real estate, and at the price following,' that is to say, all that part of a ti'act or or parcel of land called Blackacre, and lying and being in county, which is contained within the following metes and bounds, courses and distances, to wit, beginning for the same at, &c., &c. at and for the sum of dollars, current money. And, whereas, the aforesaid sale has been duly reported to and ratified and confirmed by the said Court of Chancery, and the purchase money aforesaid having been fully paid and satis- fied to the said trustee, he is authorized by the said decree to execute these presents. Now, this indenture witnesseth that said A. B., trustee as aforesaid, for and in consideration of the premises aforesaid, and of the sum of five hundred dollars, cur- rent money, to him in hand paid by the said C. D., at or be- fore the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted bargained and sold, aliened, enfeoffed, released and confirmed, and by these presents doth grant, bargain and sell, aliep, enfeoff, release and confirm unto the said C. D., his heirs and assigns, all the aforesaid tract, or part of a tract or parcel of land, which is hereinbefore described as sold by the said trustee to the said AND FINAL PROCEEDINGS. , 639 C. D., with the appurtenances, and all the right, title, interest and estate of the parties to the aforesaid decree, and every of them, both at law and in equity, in and to the same, and every part and parcel thereof. To have and to hold the aforesaid tract, part of a tract, or parcel of land and premises, with their appurtenances, unto the said C. D., his heirs and assigns, to liis and their only proper use and behoof, and to and for no other use, intent, or purpose whatsoever. In witness whereof the said A. B. hath hereunto set his hand and seal, the day and year first hereinbefore written. Signed, sealed and delivered ) in presence of j [seal.] State of Maryland, county, to wit : On this day of , in the year eighteen hundred and , before the subscriber, a justice of the peace in and for the county aforesaid, personally appeared the above-named A, B., and acknowledged the foregoing instrument to be his act and deed ; and I farther certify that the said A. B. is per- sonally knovra to me to be the identical person named and de- scribed as, and professing to be, the party grantor in the fore- going instrument of writing. Note. — A simpler form of deed may le used in States wliere conveyancing Juts been simplified. The ahove form, with the necessary verbal alterations, wiU serve for a master in chancery in conveying real estate sold by him IVotice of Sale by a Master. [Title of cause.] In pursuance of a decretal order of the Court of Chancery, made in the above cause, will be sold under the direction of the subscriber, at public auction, at the Franklin House, in the city of Utica, on Tuesday, the day of next, at ten o'clock, A. M., all those three lots of ground [describe property]. J. M. A., Master in Chancery. Dated, Dec. 1843 640 FORMS OF INTERLOCUTORY Conditionis of Sale. The property described in the above notice of sale will be sold free from all incumbrances. The purchaser will be re- quired to pay twenty per cent, of the purchase money to the master, at tlie time of the sale, and the residue thereof within ten days thereafter, upon the delivery of the master's deed to him. The purchaser is also to pay the sura of $ to the auctioneer, as his fee for selling the said property, and interest on such part of the purchase money as is not paid at the time of sale, provided the same shall ■ not be paid on the delivery or tender of the deed. All taxes and assessments are to be paid out of the purchase money, provided bills thereof are furnished to the master within tlie time limited for the delivery of the deed. J. M. A., Master in Ghancery^ I acknowledge that I have purchased the property described in the above notice of sale, on the terms and conditions above specified, for the sum of $ , to which terms and condi- tions I agree to conform. And I have already paid the twenty per cent, of the purchase money required to be paid at the time of the sale. J. W. Dated, etc. Master's Report of Sale in a Partition Suit. \_Title of cause.] To the Chancellor of the State of New Yorh : In pursuance of a decretal order of this court, made in the above case, and dated the day of last, I, the sub- scriber, one of the masters of this court, residing in the county of , to whom the execution of the said order was con- fided, do report : That having caused notice of the time and place of sale of the premises mentioned in said decretal order, containing a brief description thereof, to be published once a week for six successive weeks immediately previous to such sale, in one of the public newspapers printed in the county of , where iBuch premises are situated, and having also caused a copy of AND FINAL PROCEEDINGS. 641 sucli notice to be put up at three of the most public places in the town of , where the said premises are situated, I did, onthe day of , at ten o'clock in the forenoon, that being the time specified in the said notice, attend at the Ameri- can Hotel, in the village of , the place therein mentioned, and exposed the said premises for sale at public auction to the highest bidder, as directed by said decretal order. I do further report, that the several lots or parcels of land so directed to be sold as aforesaid, were each and every one of them put up for sale separately, and were each and every one of them struck off to J, K., for the following sums : Lot No. 1, for the sum of $ ; lot No. 2, for the sum of $ ; lot No. 3, for the sum of $_ ; and lot No. 4, for the sum of $ ; those sums being the highest bidden for the said lots respectively, and the said J. K. being the highest bidder there- for, which several sums amount in the aggregate to $ That the terms and conditions of such sales were reduced to writing, and made known to the persons attending such sale, previous to putting up the said lots, and were as follows : the purchaser or purchasers of each' lot or separate parcel, were to pay ten per cent, of the purchase money down on the day of sale, and the residue when the sale should be confirmed and the deed delivered. And that the said J. K. has signed the written conditions of sale above mentioned, together with an acknowledgment that he has purchased the premises upon these terms, and he has paid to me the amount required to be paid down. All of which is respectfully submitted. J. K. P., Master in Ghanoery. Dated, etc. Note. — The above report will answer for a trustee or any other agent ap- pointed in equity to make a sale of real estate^ and the course of proceeding on the report will be the same. But see a trustee'' s report, ante, on page 633. Order to Conflrm Marter's Report of Sale. \Title of cause.] At, etc. On reading and filing the report of J. M. A., one of the masters of this court, of the sale of the mortgaged premises in this cause, and on motion of Mr. E., solicitor for complain- ant, ordered that the same be confirmed unless cause to the contrary thereof be shown within eight days from the entry ot this order. 41 642 FORMS OF INTERLOCUTORY Sxceptions to Master's General Report. [Title of cause.] Exceptions taken by E. F., one of the above defend- ants, to the general report of J. M. A., the master to whom this cause stands referred, by the decree made herein, on the day of, , 1843, and which report bears date the day of , 1843j First exception. — For that the said master, etc. Second exception. — For that the said master, etc. Wherefore the said defendant doth except to the said gen- eral report, and appeals therefrom to the judgment of this court. W. H., SoVr for Deft. E. F. S. A., of Counsel. Further Directions. NOTICE OF HEAEIfTG FOE FUETHEE DIEECTIOlfS UPON MASTEe's GENEEAi, EEPOET. [Title of cause.] Sir : Take notice that this cause will be brought to a hear- ing for further directions upon the general report of J. M. A., the master to whom the said cause was heretofore referred, at the next term of this court, to be held at the Capitol, in the city of Albany, on the day of next, at ten o'clock in the forenoon, or as soon thereafter as counsel can be heard. Dated, etc. Yours, etc., J. E., SoVr for cmpVi. To W. H., Esq., deft's soVr. Decree against an Executor for a part of the Debt, and for the residue to be paid out of future Assets. \For commencement, see form on p. 613 to *.] That there is due to the complainants from the defendant, as executor of A. B., deceased, the sum of five thousand dol- lars, current money, with interest thereon from the , until paid. AND FINAL PROCEEDINGS. 643 And itis fnrtlier ordered and decreed that the said defend- ant forthwith pay or bring into this court, to be paid to the said complainant, the sum of six hundred and titty dollars (bemg a just proportion of the assets of his testator, which have come to the hands of the said defendant, as executor to be ad ministered), with interest thereon, from the until paid or brought in as aforesaid, together with their costs of this suit to be taxed by the register. * ' And it is further adjudged, ordered and decreed, that the said defendant pay to the said complainants the sum of dollars, with interest as aforesaid (being the residue of the aforesaid debt), out. of any assets of his testator which may hereafter come into his hands to be administered, and which may be subject thereto in a due course of administration. Note. — A decree against an executor for the payment of money in his handi, does not act directly against the assets, hut against the person of the' executor. The report of the auditor, or other evidence, shows the sum in his hands applicable to the complainant's demand, and the decree directs the pay- ment of that sum to the complainant. Failure to comply with the decree is a contempt, and process to punish that contempt may go against the person of the defendant. Decree on Creditor's Bill against Executor, -wbere the Assets in band are Insufflcient. l^For the commencement., see form., p. 613 to *.] \FoT the clause of decree ratifying the auditor'' s report, see form, p. 616.] And it is further adjudged, ordered and decreed, that there is due from the defendant, as executor of A. B., deceased, unto the complainant C, the sum of , with interest thereon from the until paid, and unto, &c., &c., &c. And it is further adjudged, ordered and decreed, that the said defendant forthwith* pay or bring into this court to be paid unto the said complainant C., the sum of , with interest thereon from , until paid or brought in as aforesaid, and unto the said the sum of &c., &c., &c. The sums, as.aforesaid decreed to be paid, being their respective propor- tions of the assets of the said A. B., deceased, which have come to the hands of the said defendant, as executor, to be adminis- tered. And it is further adjudged, ordered and decreed, that out of any assets of his said testator, which may hereafter come into 644 FORMS OF INTERLOCUTORY the hands of the said defendant, as executor, and which may- be subject to the payment of the claims of the aforesaid cred- itors, in a due course of administration, the said defendant pay unto the said complainant the sum of , &c., &c., &e. And it is further adjudged, ordered and decreed, that the said defendant pay the costs of this suit, as allowed by the aforesaid account of the auditor, to the persons who are by said account made entitled to receive the same. Deeree Dismissing the Bill. [For commenGemeni see p. 613 to *.] I hat the bill of complaint of the complainant be, and the same is hereby dismissed, and that the complainant pay the de- fendant his costs of this suit, to be taxed by the register. Note. — Where the Mil is intended to be dismissed without prejudice, there should ie inserted the following clause after the word dismissed : But without prejudice to any other suit which the com- plainant may hereafter bring in relation to any matters of equity in controversy in this suit. Petition for a Plaintiff to Dismiss bis Bill witli Costs. [Title, &o.] Showeth, that your petitioner, having exhibited his biU in this honorable court against the above-named defendant, who has appeared [and put in his answer] thereto, your petitioner is now advised to dismiss his said bill. Tour petitioner therefore humbly prays, that the said bill may stand dismissed out of this court, with costs to be taxed by the register of this court. Ifrit of Assistance. [L. S.] The People of the State of New York, to the Sheriff of the county of Sa/ratogrt, greeting : Whereas, by a certain decree [or decretal order] of our Court of Chancery, in a certain cause there depending between A. B., complainant, and C. D., defendant, made at a Court of AND FINAL PROCEEDINGS. 645 Cliancery- held for tlie State of New York, at the town of Sara- toga Springs, on the day of , in the year one thou- sand eight hundred and forty-three, before the chancellor \or lefore the vice-chancellor' of the ^th circuit'], it was, among other things therein contained, ordered, adjudged and decreed by the said court, that the said complainant should be forthwith put into possession of a certain farm or lot of land situate in the town of Day, in said county, known as lot No. 160, in the Kayaderosseras patent ; and whereas the said complainant has not been let into, nor taken possession of the said farm or lot of land, or any part thereof, according to the tenor of the said decree, and whereas the said farm or lot of land is in the tenure and occupation of the said defendant ; and whereas, by an order of our said Court of Chancery made in the said cause, on the day of , it was ordered that our writ of assistance should issue to you, the said sheriff, to put the complainant in possession of the said farm or lot of land, and him in such pos- session thereof from time to time to maintain and defend : Therefore, we command you that immediately after receiving this writ, you go to and enter upon the said farm or lot of land, and that you eject and remove therefrom all and every person or persons holding and detaining the same, or any part thereof, against the said complainant ; and that you put and place the said complainant, or his assigns, in the full, peaceable and quiet possession of the said farm or lot of land, without delay ; and him, the said complainant, in such possession thereof, from time to time, maintain, keep and defend, or cause to be kept, main- tained and defended, according to the tenor and true intent of the said decree and order of our said court. Witness Eeuben H. Walworth, Chancellor of our said State, at the town of Sara- toga Springs, the day of , in the year one thousand eight hundred and forty-three. J. E., Solicitor. J. M. D., Eegister. '•) Injunction to Deliver Possession of Land. Maryland, c&o. The State of Maryland to Job Garretson, of Baltimore county, and every and all other person and persons whatsoever, who are in possession of all or any part of that part ot the tract or parcel of land, situate in the county aforesaid, called "The Silent Cypress of Africa," or "The Silent Zephyrs of Africa," which is contained within the lines of a tract ol land 646 FORMS OF INTERLOCUTORY called " Colo's Discovery." Whereas it hath been represented to the Court of Chancery, in a cause wherein Eichard Cole is complainant, and you, the said Job Garretson, are defendant, that by the original decree in the cause passed on, &c., it was decreed that, &c., and that affidavit was afterwards made to the satisfaction of the chancellor, of the service of a copy of the said original decree, under the great seal of the State, upon you the said Garretson, and of your refusal and neglect to obey, fulfill and perform the said decree ; and that by a subsequent decree or order made in the said cause, on the, &c., it was ad- judged, ordered and decreed, that you the said Garretson, hav- ing neglected to execute the _deed by the said original decree directed, the said decree hath operated, as the said deed would have operated, to convey unto the said complainant, Eichard Cole, and his heirs, the land thereby directed to be conveyed, and that you, the said Garretson, should deliver possession of the said land to the said complainant, and that an injunction issue against you the said Garretson, to enjoin you to deliver possession of the said land to the said complainant ; and the matters stated in the said representation being all just and true, therefore, in consideration of the premises, you, the said Job Garretson, your servants, agents and all persons assisting you, and every and all other person or persons in possession of the said land, are strictly enjoined and commanded, that you, each and every of you, do deliver the possession of the said land and 'premises, and every part and parcel thereof , to the said com- plainant, Eichard Cole, pursuant to the said decree ; and that you cease from any further molestation of the said Eichard Cole, in the quiet possession of the said land. Hereof fail not at your peril. Witness, &c. Habere Facias Possessionem. Maryland, &g. The State of Maryland to, the Sheriff of Baltimore county, greeting : Whereas, by the original decree passed in the Court of Chancery on, &c., in a cause wherein E. C. is complainant, and J. G. is defendant, it was decreed, &c. And whereas, by a sub- sequent decree or order, made and passed in the said cause on the, &c., it was adjudged, &c. And whereas, according to the decrees aforesaid, and in conformity therewith, on the, &c., an injunction did issue directed to the said J. G., his servants, AND FINAL PROCEEDINGS. 647 agents and all other persons assisting him, and every and all other person or persons in possession of the said land com- manding that he, the said J. G., and aU and every person or persons aforesaid, should deliver the possession of the said land and premises^ and every part and parcel thereof, to the com- plainant E. C, and that he, the- said J. G, should cease from any further mo estation of the said E. 0. in the quiet posses- sion of thesaid land And whereas it hath been represented to the said Court of Chancery, that on the 4th of March, instant, at the county aforesaid, a true copy of the injunction so as afore- said issued, was served on and delivered, in the presence of the said_ complainant, to the said J. C, and at the same time the original injunction, with the great seal appendant thereto, was shown to the said J. G., and that the said complainant, R C did then and there request and demand of the said J. G. that he would deliver the possession of the land in the said writ mentioned, according to the directions of the said writ, which he the said J. G. absolutely refused to do ; and that on the same day, and in manner aforesaid, a true copy of the said writ of injunction was also shown and delivered to T. S., a tenant of the said J. G., and the original writ, with the great seal as aforesaid was also shown to the said T. S., which he then and there ab- solutely refused to comply with ; and the said E. C, having ap- plied to the said Court of Chancery for additional process to enforce the said decrees, know ye, therefore, that to complete and to carry into full effect the decrees of the said Court of Chancery, made and passed in manner aforesaid, the said Court of Chancery hath given, and from this time doth give to you, fuU power and authority to the land and premises aforesaid, sit- uate in Baltimore county aforesaid, and in the decrees and in- junction aforesaid mentioned and expressed, you approach and enter, and from thence the said J. G. and the said T. S., as weU as all and every other person or persons in possession of the premises being, against the form and effect of the decrees and injunction aforesaid, you remove, and the said E. C. in fiiU, quiet and peaceable possession of all and singular the premises aforesaid, immediately, and from time to time, as often as nec- essary, you put and place ; and that the said E. C. so being put and placed in possession, you protect and keep quiet; and therefore you are hereby commanded, that immediately after the receipt of this writ, to the land and premises aforesaid, you approach and enter, and the said J. G. and the said T. S., as weU as all and every other person and persons in possession of the said land and premises being, against the form and effect of the decrees and injunction aforesaid, from the possession thereof you remove, and to the said E, C. the full peaceable and quiet 648 INTERLOCUTORY AND FINAL PROCEEDINGS, possession of all and singular the premises, you deliver, put and place, and so from time to time as often as necessary; and the said K. 0. so being put in possession, you preserve, keep and continue, and cause so be preserved, kept and continued, accord- ing to the true intent of the decrees and writ of injunction aforesaid, and of this writ. Witness, &c. Note. — Where a court of equity decrees a conveyance from the defendant to the complainant, and on the service of a copy of the decree, under seal, with a tender of a deed in pursuance of the decree, the defendant refuses to deliver up possession and to execute the deed, a writ of injunction to compel delivery of the possession may be issued. And if that writ be not obeyed, the court will grant an habere facias possessionem, (1 Harr. & John. 370.) A.pp»Eisrr>ix. ACTS OF CONGEESS JANUAEY 24, 1873 and JUNE 1, 1873. FORMS OF PROCESS, WITH Rules of the Supreme Court of the Uiited States RULES OF PEACTICE FOR THE CIRCUIT COURTS OF THE UNITED STATES m EQUITY. (649) APPENDIX AN ACT TO FIX THE TIME FOR HOLDING THE ANNUAL SESSION OF THE SUPREJIE COURT OF THE UNITED STATES, AND FOR OTHER' PURPOSES. Be it enaoted l>y the Senate and House of Hepresentatives of the United States of America in Congress assembled, That from and after the passage of this act the annual session of the Supreme Court of tlie United States shall commence on the second Monday of October in each year, and all actions, suits, appeals, recognizances, processes, writs, and proceedings what- ever, pending or which may be pending in said court, or return- able thereto, shall, have day therein, and be heard, tried, pro- ceeded with, and decided, in like manner as if the time of hold- ing said sessions had not been hereby altered. Approved, January 24, 1873. AN ACT TO FURTHER THE ADMINISTRATION OF JUSTICE. Be it enacted hy the Senate and Bouse of Eepresentatives of the United States of America in Congress assembled, That whenever, in any suit or proceeding in a circuit court of the United States, being held by a justice of the Supreme Court and the circuit judge or a district judge, or by the circuit judge and a district judge, there shall occur any difference of opinion between the judges as to any matter or thing to be decided, ruled, or ordered by the court, the opinion of the presiding jus- (651) 652 APPENDIX. tice or the presiding judge shall prevail, and be considered the opinion of the court for the time being ; but when a final judg- ment, decree, or order in such suit or proceeding shall be en- tered if said judges shall certify, as it shall be their duty to do, if such be the fact, that they differed in opinion as to any ques- tion which, under the act of Congress of April twenty-ninth, eighteen hundred and two, might have been reviewed by the Supreme Court on certificate of difference of opinion, then either party may remove said final judgment, decree, or order to the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and supersedeas. Sec. 2. That no judgment, decree, or order of a circuit or district court of the United States, in any civil action at law or in equity, rendered after this act shall take effect, shall be re- viewed by the Supreme Court of the United States, on writ of error or appeal, unless the writ of error be sued out, or the ap- peal be taken, within two years after the entry of such judg- ment, decree, or order ; and no judgment, decree, or order of a district court, rendered after this act shall take effect shall be reviewed by a circuit court of the United States upon like pro- cess or appeal, vmless the process be sued out, or the appeal be taken, within one year after the entry of the judgment, decree, or order sought to be reviewed : Provided, That where a party entitled to prosecute a writ of error or to take an appeal is an infant, or non compos inentis, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within the periods above designated after the entry of the judgment, de- cree or order, exclusive of the term of such disability." The appellate court may affirm, modify, or reverse the judgment, decree, or order brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court as the justice of the case may require. Sec. 3. That the Supreme Court may at any time, in its discretion, and upon such terms as it may deem just, and where the defect has not injured and the amendment will not preju- dice the defendant in error, allow an amendment of a writ of ACTS OF CONGRESS. 653 error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective if the defect can be remedied by reference to the accompanying record, and in all other particulars of form where the defect has not prejudiced, and the amendment will not injure the de- fendant in error ; and the circuit and district courts of the United States shall possess the like power of amendment of all process returnable to or before them. Sec. 4. That a bill of exceptions hereafter allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried, or by the presiding judge thereof, if more than one judge sat on the trial of the cause, without any seal of court or judge being annexed thereto; and all process issued from the courts of the United States shall bear teste from the day of such issue. Sec. 5. That the practice, pleadings, and forms and modes of proceeding in other than equity and admiralty causes in the circuit and district courts of the United States shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or dis- trict courts are held, any rule of court to the contrary notwith- standing: Provided, however, That nothing herein contained shall alter the rules of evidence under the laws of the United States, and as practiced in the courts thereof. Sec. 6. That in common law causes in the circuit and dis- trict courts of the United States thfe plaintiff shall be entitled to similar remedies, by attachment or other process against the property of the defendant, which are now provided for by the laws of the State in which such court is held, applicable to the courts of such State ; and such circuit and district courts may, from time to time, by general rules, adopt such State laws as may he in force in the State in relation to attachments and other process ; and the party recovering judgment in such cause shall be entitled to similar remedies upon the same, by execu- tion or otherwise, to reach the property of the judgment debtor, 654 APPENDIX. as are now provided by the laws of the State within which said circuit or district courts shall be held in like causes, or which shall be adopted by rules as aforesaid : Provided, That similar preliminary affidavits or proofs, and similar security as required by such laws, shall be first furnished by the party seeking such, attachment or other remedy. Sec. 7. That whenever notice is given of a motion for an injunction out of a circuit or district court of the United States the court or judge thereof may, if there appear to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion. Such order may be granted with or without security, in the discretion of the court or judge : Provided, That no justice of the Su- preme Court shall hear or allow any application for an injunc- tion or restraining order, except within the circuit to which he is allotted, and in causes pending in the circuit to which he is allotted, or in such causes at such places outside of the circuit as the parties may in writing stipulate, except in causes where such application cannot be heard by the circuit judge of 'the circuit, or the district judge of the district. Sec. 8. That no indictment found and presented by a grand jury in any district or circuit or othter court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be afiected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. Sec. 9. That in all criminal causes the defendant may be found guilty of any offense the commission of which is neces- sarily included in that with which he is charged in the indict- ment, or may be found guilty of an attempt to commit the offense so charged : Provided, That such attempt be itself a separate offense. Sec. 10. That on an indictment against several, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in regard to whom they do agree, on which a judg- ment shall be entered aceSrdingly ; and the cause as to the other defendants may be tried by another jury. Sec. 11. That any party or person desiring to have any judgment, decree, or order of any district or circuit court re- ACTS OF CONGRESS. 655 viewed on writ of error or appeal, and to stay proceedings thereon during the pendency of su^ch writ of error or appeal, may give the security required "by law therefor within sixty days after the rendition of such judgment, decree, or order or afterward with the permission of a justice or judge of the said appellate court. Sec. 12. That in all criminal or penal causes in which judg- ment or sentence has been or shall be rendered, imposing the payment of a fine or penalty, whether alone or with any other kind of punishment, the said judgment, so far as the fine or penalty is concerned, may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced : Provided, That where the judgment directs that the defendant shall be imprisoned until the fine or penalty imposed is paid, the issue of execution on the judg- ment shall not operate to discharge the defendant from im- prisonment until the amount of the judgment is collected or otherwise paid. Sec. 13. That when in any suit in equity commenced in any court of the United States, to enforce any legal or equitable lien or claim against real or personal property within the dis- trict where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant's bill at a certain day therein to be designated, which order shall be served on such absent defendant, if practicable, wherever found, or where such personal service is not practicable, such order shall be published in such manner as the court shall direct ; and in -case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such ab- sent defendant had been served with process within the said dis- trict, but said adjudication shall, as regards such absent defend- 656 APPENDIX. ant without appearance, affect his property within such district only. Sec. 14. That when a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and cost, or to pay a fine, or fine and cost, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and cost, such convict may make application in writing to any commissioner of the United States court in the district where he is imprisoned, setting forth his inability to pay such fine, or fine and cost, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the commissioner shall proceed to hear and determine the mat- ter ; and if on examination it shall appear to him that such con- vict is unable to pay such fine, or fine and cost, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the commissioner shall administer to him the following oath : " I do solemly swear that I have not any property, real or per- sonal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil precept for debt by the laws of [state where oath is administered], and that I have no prop- erty in any way conveyed or concealed, or in any way disposed of, for my future use or benefit : So help me God." And thereupon such convict shall be discharged, the commissioner giving to the jailor or keeper of the jail a certificate setting forth the facts. Sec. 15. That if at any time after such discharge of such convict it shall be made to appear that in taking the aforesaid oath he swore falsely, he may be indicted, convicted and pun- ished for perjury, and be liable to the penalties prescribed in section thirteen of an act entitled " An act more effectually to • provide for the punishment of certain crimes against the United States, and for other purposes," approved March third, A. D. eighteen hundred and twenty-five. Sec. 16. That the fees of the commissioner for the examin- ation and certificate provided for in this act shall be five doUars per day for every day that he shall be engaged in such examin- ation. Approved, June 1, 18Y2. FORMS OF PROCESS SUPREME COUET OF THE UNITED STATES. Wkit of Eeeoe undek the 22d Section of the Jttoiciabt Act to CmctriT Courts ok Disteict Couets exeecising ClECinT COTJET POWEES. ' United States of Ameeica, ss. : The President of the United States, to the Honorable the Judge of the _ Court of the United States for the district of , greeting : Because, in tlie record and proceedings, as also in the rendi- tion of the judgment of a plea which is in the said court, before you, between , a manifest error hath happened, to the great damage of the said , as by complaint appears. We, being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be there- in given, that then, under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things con- cerning the same, to the Supreme Court of the United States, together with this writ, so that you have the same at "Washing- ton, on the Monday of next, in the said Su- preme Court to be then and there held ; that the record and proceedings aforesaid, being inspected, the said Supreme Court may cause further to be done therein, to correct that error, what of right, and according to tbe laws and custom of the United States, should be done. Witness the Honorable , Chief Justice of the said Supreme Court, the of , in the year of our Lord one thousand eight hundred and Clerh of the Supreme Court of the United States^ 42 (657) 658 APPENDIX. Though this is the writ of the Supreme Court, it may be issued from the office of the clerk of the Circuit Court, or of the District Court exer- cising Circuit Court powers, or (in appropriate cases) of the Territorial Court, under the seal of the court and signature of the clerk, as well as from the ofBce of the clerk of the Supreme Court. It regularly bears test of the first day of the preceding teim, and is re- turnable to the first day of the succeeding term, if the judgment on which it issues was rendered thirty days before that period. If the judgment was rendered less than thirty days, it is returnable to the third Monday of the term. (8th Rule.) It may be issued by the clerk without being allowed by a judge. When it is to operate as a supersedeas and stay of execution, then it must be issued and copy thereof lodged for the adverse party in the clerk's oiflce, where the record remains, within ten days, Sunday exclusive, after the entry of the judgment. The original writ must be sent up with the transcript. In framing the writ, care must be taken to set forth, in full, the names of all the plaintifis in error and defendants in error. It will not do to say A. and others, or the heirs of A., or the like. Writs of error and appeals are frequently dismissed for this defect ; as will be seen in Chapter VI, Phillips' Practice. Wett of Eeeoe TrNDEE THE 25th Sectiow of the Judiciaet Act to State Oouet. UinTED States of Ameeica, ss. : The Presiden t of the United States, to the Honorable the , greeting ; Because, in the record and proceedings, as also in the rendi- tion of the judgment of a plea which is in the said before you, or some of you, being the highest court of law or equity ot the said State in which a decision could be had in the said suit between , wherein was drawn in question the validity of a treaty ot statute of, or an authority exercised under, the United States, and the decision was against their validity ; or wherein was drawn in question the vaHdity of a statute of, or an authority exercised under, said State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision was in favor of such their valid- . ity ; or wherein was drawn in question the construction of a clause of the Constitution, or of a treaty, or statute of, or com- mission held_ under, the United States, and the decision was against the title, right, privilege, or exemption specially set up or claimed under such clause of the said Constitution, treaty, statute, or commission, — a manifest error hath happened, to the great damage of the said , as by complaint ap- FORMS OF PROCESS. grg pears: We, being willing that error, if any hath been, should be duly corrected, and full and speedy justice done to the par- ties aforesaid m this behalf, do command you, if iudgment be therein given, that then, under your seal, distinctly and openly you send the record and proceedings aforesaid, with all things concerning the same, to the Supreme Court of the United States together with this writ, so that you have the same at Washing- ton, on the Monday of next, in the said SuprenTe Court to be then and there held, that the record and proceed- ings aforesaid, being inspected, the said Supreme Court may cause further to be done therein, to correct that error, what of right, and according to the laws and custom of the United States should be done. ' Witness the Honorable , Chief Justice of the said Supreme Court, the day of , in the year of our Lord one thousand eight hundred and Clerk of the Sujpreme Court of the United States. (or Clerk of the Circuit Court of the United States, as the case may be). Allowed by The above form contains all the grounds of jurisdiction specified in the 25th section. Only the one appropriate to the particular case need be used. All that is said in reference to the writ under the 33d section is appli- cable here; as, by the express terms of this section, the proceedings are to be the same as under the 32d section. But under this section the decisions require that the writ should be allowed, either by a justice of the Supreme Court or by the chief justice, or judge, or chancellor of the court rendering the judgment or decree. There is no form prescribed for this purpose ; but, when the application is made to a justice of the Supreme Court, a short petition, accompanied by copy of the record, would be proper. This petition should describe the suit, aver that the judgment or decree is final, that it was passed by the highest court of the State having jurisdiction of the controversy, and that it involved some one of the federal questions mentioned in the 35th section which was decided adversely to the right claimed by the petitioner. APPEALS FROM CIRCUIT COURT. As in cases of writ of error under the 25th section, the decisions of the court hold it to be necessary that there should be an application for ap- peal, and an allowance of it by the judge of the circuit, or by a justice of the Supreme Court ; and this must be made to appear in the record when sent up. * i 1 When the appeal is to operate as a supersedeas, the allowance must bo 66o APPENDIX, had -within ten days, Sunday excluded, from the entering of the decree, precisely as in writs of error. If the application and allowance are made in open court, during the term at which the decree was rendered, this operates to give appellate jurisdiction, though no citation is issued. The allowance of the appeal must appear in the record, and the names of the appellants and appellees must be set forth in full, as requiredin writs of error. The Citation. The United States of Ameeica, greeting : You are hereby cited and admonished to be and appear at a Supreme Court of the United States, to be holden at Washing- ton, on the Monday of next, pursuant to a writ of error, filed in the clerk's office of the , wherein , plaintifE in error, and you are defendant in error, to show cause, if any there be, why rendered against the said plaintiff in error, as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalf. Witness the honorable of the this day of , in the year of our Lord one thousand eight hun- dred and On this day of , in the year of our Lord one thousand eight hundred and , personally appeared before me, the subscriber, , and makes oath that he de- Uvered a true copy of the within citation to When the citation is not issued under the 35th section, it is to be signed by the judge of tlie Circuit Court, or judge of the District Court ex- ercising Circuit Court powers, or by the judge of the Territorial Court, or by a justice of the Supreme Court. It is to be served on the adverse party, or his attorney of record, who is entitled to thirty days' notice. When it is issued under the 35th section, it is to be signed by the chief justice, or judge, or chancellor of the court rendering or passing the judg- ment or decree complained of, or by a justice of the Supreme Court of the United States, and the service is to be the same. It would seem that, where the court is composed of several judges and one chief justice, no other member of the court than the chief justice is authorized to sign the citation. _ The original citation, with the service thereon, should be returned with the transcript. It should regularly be tested, as of the first day of the preceding term, and be made returnable like the writ of error. Tlie citation is held to be unnecessary, in cases of appeal, when the appeai is taken in open court during the term. It may also be dispensed with by agreement, and the absence of a citation is cured by appearance. FORMS OF PROCESS. 66 1 Sectjbitt ok Bail in Eeeoe. The form of the bond is as follows : Know all men by these presents, That we, , are held and firmly bound unto , in the full and just sum of to be paid to the said , certain attorney, executors, admin- istrators, or_ assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administra- tors, jointly and severally, by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand eight hundred and Whereas lately, at a , in a suit pending in said court, - between ^ was rendered against the said , and the said having obtained , and filed a copy thereof in the clerk's office of the said court to reverse the in the aforesaid suit, and a citation directed to the said , citing and admonishing to be and appear at a Supreme Court of the United States, to be holden at Washington, the Monday of next : No'w, the condition of the above obligation is such, That if the said shall prosecute to effect, and answer all damages and costs, if fail to make plea good, then the above obligation to be void, else to remain in full force and virtue. [seal.] [SEAL.J [seal.] Sealed and delivered in presence of Approved by If the writ of error be uot sued out within ten days, and consequently cannot operate as a supersedeas of the execution, only security for the costs upon the writ of error need be given. But when the writ is to so operate, the bond must be large enough to give full indemnity. What this is, will be seen by reference to the 29th rule of the Sujireme Court. This bond must be presented and approved by the judge allowing the citation. And when it is for a supersedeas, it must be approved and filed within ten days. It is not necessary that the parties, appellant or plaintiff in error, should execute it ; nor is it necessary that those who do execute it should be residents within the jurisdiction of the court rendering the judgment. All that is required is, that the security should be sufficient. But it is necessary that the bond should be made in favor of the appellees or de- fendants in error, as they appear on the record. A copy of this bond should foim a part of the transcript. 662 APPENDIX. Bond foe Costs in the Supeeme Couet. The form of bond may be as follows : Know all men by these presents, That we, , of , in the county of , and State of , and of , in the county of , and State of , are held and firmly bound unto" D. W. Middleton, Clerk of the Supreme Court of the United States, in the full and just -sum of two hundred dollars, current money of the United States, to be paid to the said D. W. Middleton, his heirs, executors, -administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with our seals, and dated this day of , in the year of our Lord one thousand eight hundred and Whereas lately, at , in a suit depending in said court, between was rendered against the said , and the said having obtained to remove the said cause to the Supreme Court of the United States, and filed a transcript of the record of said court in said cause in the office of the clerk of the Supreme Court of the United States, to reverse the in the aforesaid suit : Now, the condition of the above obligation is such, That if the said obligors shall well and truly pay or cause to be paid to the said D. W. Middleton, his- heirs, executors, administra- tors, or assigns, all such fees as shall accrue to him, the said D. W. Middleton, clerk as aforesaid, and charged to the said , in the prosecution of the said , then the above obligation to be vcid, otherwise to remain in full force and virtue. [seal.] Sealed and delivered in the presence of — ' [seal.] I, , of , the court of the United States for the district of , do hereby certify, that the within named obligors are known to me to be perfectly good and responsible for the within named amount. N. B. — Insert the post offices (and if in a city, the streets and numbers) of the sureties. The party (plaintiff in error or appellant) should not join in the bond, as he is bound without it. The plaintiff in error, or appellant, may, if he prefer, deposit the like sum of $300, subject to the draft of the clerk, on account of the costs. It should be remembered that this bond must be delivered or the de- posit of |200 made when the transcript is sent up. The clerk will neither file it nor docket it until this is done. From want of attention to this, records frequently lie months in the office before they are placed on the docket. FORMS OF PROCESS. 66 •? Appearance. Sujpreme Court of the United States. December Term, 187 . No. I The clerk will enter my appearance as counsel for [appel- lant or plaintiff in error, as the case may le.^ The 3d section of the 9th rule provides, that the appearance for the appellant or plaintiff in error must be entered at the time of filing the transcript. The prsEcipe must be signed by an attorney or counserior of the Supreme Court. SUBPCENA OeIGINAL JuEISDICTION. The President of the United States, to the Governor and Attor- ney Oeneral of the State of , greeting : For certain causes offered before the Supreme Court of the United States, holding jurisdiction in equity, you are hereby commanded, and strictly enjoined, that, layiuii; all matters aside, and notwithstanding any excuse, you personally be and appear, on behalf of the people of said State of , before the said Supreme Court, holding jurisdiction in equity, on the first Monday in next, at the city of Washington, in the Dis- trict of Columbia, being the present seat of the national Government of the United States, to answer concerning things which shall there and then be objected to said State, and to do further, and receive on behalf of said State, what the said Su- preme Court, holding jurisdiction in equity, shall have consid- ered in this behalf; and this you may in nowise omit, under the penalty of five hundred dollars. Witness the Honorable , Chief Justice of the said Supreme Court, at Washington city, this day of (Signed by the Clerk of the Supreme Court.) This writ was prepared by the court in the case of New Jersey «. New York (3 Pet. 467). As to the service of this writ, see Chapter II, Phillips' Practice. 664 APPENDIX. Ceetificate of Division. United States op America, ) North Carolina District. \ At a Circuit Court of the United States, begun and held at Ealeigh, for the district of North Carolina, on Wednesday,_the 29th December, in the year of our Lord one thousand eight hundred and ten, and in the twenty-seventh year of American Independence. Present the Honorable John Marshall and Henry Potter, Esquires. RoBEBT Ogdbn, administrator Ae honis non, with the will annexed, of Samuel Cornell, V. RicHABD Salter, deceased. This is an action of debt upon a bond, given by the defend- ant's testator to the testator of the plaintiff, on the 2d March, 1775. The defendant, among other pleas, pleads in bar an act of the General Assembly of the State of North Carolina, passed in the year 1715, entitled " An act," &c., the 9th section of which is in the following words : " That the creditors of any person deceased shall make their claim within seven years after the death of said debtor, other- wise such creditors shall be forever barred." To which plea the plaintiff rephes, in substance, that the plaintiff's testator was, at his death, a British subject, and the debt within the true intent and meaning of the fourth article of the treaty of peace, concluded between the King of Great Britain and the United States. To this replication the defendant demurs, and the plaintiff joins in the demurrer. The case coming on to be argued at this term, it occurred, as a question, whether the act of Assembly recited in the plea of the defendant was, under all the circumstances stated, and the various acts passed by the Legislature of North Carolina, a bar in this action. On which question the opinions of the judges were op- posed. "Whereupon, on motion of the plaintiff, by his counsel, that the point on which the disagreement hath happened may, dur- FORMS OF PROCESS. 665 ing the term, be stated under the direction of the judges, and certified under the seal of the court, to the Supreme Court, to be finally decided : It is ordered, that the foregoing state of the pleadings, and the following statement of facts, which is made imder the direc- tion of the judges, and certified, according to the request of the plaintiff, by_ his counsel, and the law in that case made and pro- vided, to wit : First. That Samuel Cornell, the plaintiff's testator, was, and until his death continued to be, a subject of the King of Great Britain, and the defendant's testator was, and continued to be, until his death, a citizen of North Carolina. Second. That the defendant's testator died in the year 1780; and tlie defendant, in the same year, was qualified as executor. Third. That the plaintiff sued out his writ in this suit on the 5th day of October, 1798. tTNiiED States of Ameeica, North Carolina District. I, William H. Haywood, clerk of the Circuit Court for the district of North Carolina, do hereby certify the foregoing to be a copy from the minutes. Given under my hand and seal of office, at Raleigh, on the fifth day of January, in the year of our Lord one thousand eight hundred and two. W. H. HAYWOOD, [seal of cotTET.j GlcrTc. This form is given by Mr. Cranch, in the report of the case of Ogden s. Blackledge, with the note : " This being the first case under the late act of Congress, the certificate and statement are copied as a precedent, which may be of use in future practice. (3 Cr. 373.) For the principles and decisions which govern these certificates, see Chapter XXXV, Phillips' Practice. MaitdAITOS. TTotted States of Ameeica : To the Honoralle , Judge of the District Court of the United States for the Northern District of New York, greeting : Whereas one Martha Bradstreet hath heretofore commenced and prosecuted in your court several certain real actions or 666 APPENDIX. writs of riglit, in your court lately pending, between said Martha Bradstreet, demandant, and the following named ten- ants, severally and respectively, to wit : ApoUoa Cooper and others (naming them). And whereas heretofore, to wit, at a session of the Supreme Court of the United States, held at "Washiijgton on the day of ^ it appeared, upon the complaint of said Martha Bradstreet, among other things, that at a session of your said court, lately before holden by you ac- cording to law, all and singular the said writs of right then pending before your said court, upon the motions of the tenants aforesaid, were dismissed, for the reason that there was no aver- ment of the pecuniary value of the lands demanded by the said demandant, in the several counts filed and exhibited by the said demanda'nt against the several tenants as aforesaid ; which or- ders of your said court, so dismissing the said actions, were against the will and consent of said demandant : whereupon the said Supreme Court, at the instance of said demandant, granted a rule, requiring you to show cause, if any you had, among other things, why a writ of mandamus from the said Supreme Court should not be awarded and issued to you, commanding you to reinstate and proceed to try and adjudge, according to the law and the right of the case, the several writs of right aforesaid, and the mises therein joined. And whereas at the late session of the said Supreme Court, held at Washington on the second Monday in January, in the year 1833, you certified and returned to the said Supreme Court, together with said rule, that, after the mises had been joined in the several causes men- tioned in said rule, motions were made therein, on the part of the tenants, that the same should be dismissed upon the ground that the counts respectively contained no allegation of the value of the matter in dispute, and that it did not, therefore, appear by the pleadings that the causes were within the jurisdiction of the court ; that in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance, especially, with several decisions in the Circuit Court for the Third Circuit (4 Wash. C. C. Rep. 482, 624), you granted their motions ; and, assuming that the causes were rightfully dismissed, it follows, of course, that you ought not to be required to reinstate them, unless leave ought also to be granted to the demandant to amend her counts ; and whereas afterwards, to wit, at the same session of the Supreme Court last aforesaid, upon consideration of your said return, and of the cause shown by you therein against the said rule being made absolute, and against the award- ing and issuing of the said writ of mandamus, and upon consid- eration of the argument of counsel, as well on your behalf. FORMS OF PROCESS. 667 sho-wing cause as aforesaid, as on behalf of said demandant, in support of said rule, it was considered by the said Supreme Court that you had certified and returned to the said Supreme Court an insufficient cause for having dismissed the said actions, »nd against the awarding and issuing of the said writ of man- damus, pursuant to the rule aforesaid ; the said Supreme Court being of opinion, and having determined on the matter afore- said, that in eases where the demand is not made for money, and the nature of the action does not require the value of the things demanded to be stated in the declaration, the practice of the said Supreme Court, and of the courts of the United States, is to allow the value to be given in evidence, either at or before the trial 6E the cause, and would have a right to give it in evi- dence- in the said Supreme Court : consequently she cannot be legally prevented from bringing her cases before the said Su- preme Court ; and it was also then and there considered by the said Suprenre Court, that the peremptory writ of the United States issue, requiring you, the said- judge of the said District Court, to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right, and the mises therein joined, lately pending in your said court, be- tween the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid : Therefore, you are hereby commanded and enjoined, that immediately after the receipt of this writ, and without delay, you reinstate and pro- ceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises joined therein, lately pending in your said court, between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein above named, so that complaint be not again made to the said Supreme Court ; and that you certify perfect obedience and due execution of this writ to the said Supreme Court, to be held on the first Monday in August next. Here- of fail not at your peril, and have then and there this writ. Witness the Honorable John Marshall, Chief Justice of the said Supreme Court, the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. W. T. CAEEOLL, Clerk Supreme Court of the United States. The above writ was prepared under the order of the court, and is re- ported in Ex parte Bradstreet (7 Pet. 634). (For the principles and decisions regulating this process, see Chapter XXXII, Phillips' Practice.) 668 APPENDIX. Peohibition United States of Amekica: Tlie P7'esident of the United States, to the Honorable Richard Peters, Esquire, Judge of the District Court of the United States iti and for the Pennsylvania District : It is shown to the judges of the Supreme Court of the United States, by Samuel B. Davis, that whereas, by the laws of nations and the treaties subsisting between the United States and the Republic of France, the trial of prizes taken on the high seas, without the territorial limits and jurisdiction of the United States, and brought within the dominions and jurisdiction of the said Republic for legal adjudication, by vessels of war belonging to the sovereignty of the said Republic, acting under the same, and of all questions incidental thereto, does oi riglit and exclusively belong to the tribunals and judiciary establishments of the said Republic, and to no other tribunal or tribunals, court or courts, whatsoever: Wherefore the said Samuel B. Davis, the aid of the said Supreme Court most respectfully requesting, hath prayed remedy by a writ of prohibition, to be issued out of the said Supreme Court, to you to be directed, do prohibit you from holding the plea aforesaid, the premises aforesaid anywise con- cerning, further before you : You, therefore, are hereby pro- hibited, that you no further hold the plea aforesaid, the prem- ises aforesaid in anywise touching, before you, nor anything in the said District Court attempt, nor procure to be done, which may be in anywise to the prejudice of the said Samuel B. Davis, or to the said corvette or vessel of war called the Cas- sius, or in contempt of the laws of the United States ; and also, that from all proceedings therein you do, without delay, release the said Samuel B. Davis, and the said corvette or ves- sel of war called the Cassius, at your peril. Witness the Honorable John Rutledge, Esquire, Chief Justice of the said Supreme Court, at Philadelphia, this 24th day of August, in the year of our Lord one thou- sand seven hundred and ninety-five, and of the Inde- pendence of the United States the twentieth. J. WAGNER, District Clerh Supreme Court of the United States. See Chapter XXXIII. Phillips' Practice. FORMS OF PROCESS. 669 Injunction. The United States of Amekica, ) In the Supreme Court. j The President of the United States of America, to Erastus C&i^ing, John F. Winslow and James Horner ; Whereas, in a certain suit in the Supreme Court of the United States, removed there by the appeal of the comphxinant from the Circuit Court of the United States for the 'northern district of New York, in which latter court the Troy Iron and Nail Factory was complainant and you were defendants in chancery, the said Supreme Court, by a decree made upon the hearing of the said cause, this eighteenth day of January, in the year of our Uord eighteen hundred and fifty-three, ordered, adjudged and decreed, among other things, that an injunction should issue under the seal of the said court, to restrain yon, the said Erastus Corning, John F. Winslow, and James Horner, and each of you, perpetually, from using the improved machin- ery, with the bending lever, for making hook or brad-headed spikes, patented to Henry Burden on the 2d day of September, A. D. 1840, and assigned to tlie complainant. It is therefore, in execution of the said decree, hereby firmly enjoined and commanded you, andtvery of you, that from and immediately after being served with this writ or notice thereof, you and every of you do not use the aforesaid machinery ; but that yoa and every of you do, from henceforth, entirely cease and desist from using the aforesaid improved machinery, with the bend- ing lever, for making hook and brad-headed spikes, patented to Henry Burden the 2d day of September, A. D. 1840, and assigned to the complainant ; and this you shall in nowise omit, at your peril. Witness the honorable Koger B. Taney, Chief Justice of the said Supreme Court, this eighteenth day of January, in the year of our Lord one thousand eight hundred and fifty-three. Cikrh of the Su^preme Court of the United States. 670 APPENDIX. Ceetioeaei. The Uitited States of Ameeica. Ths President of the United States of America to the Judges of , greeting : Whereas, in a certain suit in said court, in whicli is plaintiff and is defendant, which suit was re- moved by writ of error to the Supreme Court of the United States, agreeably to the act of Congress in Such case made and provided, certain inaccuracies, detects and omissions in the record of the proceedings, have been suggested, to wit : You, therefore, are hereby commanded that, searching the record and proceedings in said cause, you certify forthwith to the said Supreme Court, under your seal, a full, true, and com- plete transcript of said record and proceedings, plainly and dis- tinctly, and in as full and ample a manner as the same now remain before you, together with this writ ; so that the said Supreme Court of the United States may be able thereon to proceed, and do what shall appear to them of right ought to be done. Herein fail not. Witness the honorable , Chief Justice of the said Supreme Court, this day of _ Cleric of Supreme Court. RULES OF THE SUPKEME COURT OF THE UHTED STATES. IVo. 1. OLEEK. The clerk of this court shall reside and keep the office at the seat of the national Government, and he shall not prac- tice, either as an attorney or counsellor, in this court, or any other court, while he shall continue to be clerk of this court {Adopted 1Y90.) The clerk shall not permit any original record or paper to be taken from the court-room, or from the office, without an order from the court. {Adopted 1797, 1825.) JVo. 3. ATTORNEYS. It shaU be requisite to the admission of attorneys or coun- sellors, to practice in this court, that they shall have been such for three years past in the supreme courts of the States to which they respectively belong, and that their private and professional character shall appear to be fair. They shall respectively take and subscribe the following oath or affirmation, viz. : I, ■ , do solemnly swear (or affirm, as the case may be), that I will demean myself, as an attorney and counsellor of this court, uprightly, and according to law ; and that I will sup- port the Constitution of the United States. {Adopted 1791.) No. 3. PBACTICE. This court consider the practice of the Courts of King's Bench and of Chancery, in England, as affording outlines for (671) 672 APPENDIX. the practice of this court ; and they will, from time to time, make such alterations therein as circumstances may render neces- sary. {Adoj>ted 1Y91.) »ro. 4. BILL OF EXCEPTIONS. Hereafter the judges of the Circuit and District Courts shall not allow any bill of exceptions which shall contain the charge of the court at large to the jury in trials at common law, upon any general exception to the whole of such charge. But the party excepting shall be required to state distinctly the several matters of law in such charge to which he excepts ; and such matters of law, and those only, shall be inserted in the biU of exceptions, and allowed by the court. {Adoj[>ted 1832.) HTo. 5. PEOCESS. All process of this court shall be in the name of the Presi- dent of the United States. {Adopted 1790.) When process at common law, or in equity, shall issue against a State, the same shall be served on the governor, or chief executive magistrate, and attorney general of such State. {Adopted 1796.) Process of subpoena, issuing out of this court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and if the defendant, on such service of the subpoena, shall not appear at the return day con- tained therein, the complainant shall be at liberty to proceed ex parte. No. 6. MOTIONS. All motions hereafter made to the court shall be reduced to writing, and shall contain a brief statement of the facts and objects of the motion. {Adopted 1838.) No motion to dismiss, except on special assignment by the court, shall be heard, unless previous notice has been given to the adverse party, or the counsel or attorney of such party. MOTION DAY. The court will not hear arguments on Saturday (unless for special cause it shall order to the contrary), but will devote that RULES OF THE SUPREME COURT. 673 day to the other business of the court ; the motion day shall be Monday of each week, in lieu of Friday, and motions not re- quired by the rules of the court to be put on the docket shall be entitled to preference immediately after the reading of opin- ions, if such motions shall be made before the court shall have entered upon the hearing of a cause upon the docket. (See Amendment, p. 401.) ]Vo. 7. LAW LIBEAET. 1. During the session of the court, any gentleman of the bar having a cause on the docket, and wishing to use any book or books in the law library, shall be at liberty, upon application to the clerk of the court, to receive an order to take the same (not exceeding at any one time three) from the library, he being thereby responsible for the due return of the same within a rea- sonable, time, or when required by the clerk. And it shall be the duty of the clerk to keep, in a book for that purpose, a record of all books so delivered, which are to be charged against the party receiving the same. And in case the same shall not he so returned, the party receiving the same shall be responsible for and forfeit and pay twice the value thereof ; as also one dollar per day for each day's detention beyond the limited time. {Adopted 1833.) CONFEEENCE EOOM. 2. The clerk shall take charge of the books of the court, together with such of the duplicate law books as Congress may direct to be transferred to the court, and arrange them in the conference room, which he shall liJo. 13. DEEDS, ETC., NOT OBJECTED TO, ETC., ADMITTED, ETC. In all cases of equity and admiralty jurisdiction heard in this court, no obJL'ction shall hereafter be allowed to be taken to the admissibility of any deposition, deed", grant, or other ex- hibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same- shall otherwise be deemed to have been, admitted by consent [Adopted 1824.) Wo. 14. CEETIOEAEI. No certiorari for diminution of the record shall be hereafter awarded in any cause, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for such certiorari shall be made at the first tarm of the entry of the cause, otherwise the same shall not be granted, unless upon special cause shown to the court, accounting satis- factorily for the delay, {Adopted 182i.) ]\o. 15. DEATH OF A PAETT. 1. "Whenever, pending a writ of error or appeal in this, court, either party shall die, the proper representatives in the personalty or realty of the deceased party, according to the nature of the case, may volimtarily come in and be admitted parties to the suit, and thereupon the cause shall be heard and determined as in other cases ; and if such representatives shall not voluntarily become parties, then the other party may sug- gest the death on the record, and thereupon, on motion, obtain an order that unless such representatives shall become parties within the first ten days of the ensuing term, the party moving for such order, if defendant in error, shall be entitled to have the writ of error or appeal dismissed ; and if the party so mov- ing shall be plaintiff in error, he shall be entitled to open the record, and on hearing have the same reversed, if it be erro- neous : Provided, however, that a copy of every such order shall be printed in some newspaper at the seat of government in which the laws of the United States shall be printed by authority, for three successive weeks, at least sixty days before the beginning of the term of the Supreme Court then next en- suing. {Adopted 1821.) 6/8 APPENDIX. 2. "When the death of a party is suggested, and the repre- sentatives of the deceased do not appear by the tenth day of the second term next succeeding the suggestion, and no meas- ures are taken by the opposite party within that time to compel their appearance, the case shall abate. (Adopted 1851.) 3. When either party to a suit in the Circuit Courts of the United States shall desire to prosecute a writ of error or appeal to the Supreme Court of the United States from any final judg- ment or decree rendered in said Circuit Courts, and at the time of suing out such writ of error or appeal the other party to the suit shall be dead, and have no proper representative within the jurisdiction of the court which rendered such final judg- ment or decree, so that the suit cannot be revived in that court, but shall have a proper representative in some State or Terri- tory of the United States, the party desiring such writ of error or appeal may procure the same, and may supersede or stay proceedings on such judgment or decree, in the same manner as is now allowed by law in other eases, and shall tliereupon proceed with such writ of error or appeal as in other cases. And within thirty days after the commencement of the court to which such writ of error or appeal is returnable the plaintifi" in error, or appellant, shall make a suggestion to the court, sup- ported by affidavit, that the said party was dead when the writ of error or appeal was taken or sued out, and had no proper representative within the jurisdiction of the Court which ren- dered said judgment or decree, so that the suit could not be revived in that court, and that said party had a proper repre- sentative in some State or Territory of the United States, and stating therein the name and character of such representative, and the State or Territory in which such representative resides ; and upon such suggestion he may, on motion, obtain an order that, unless such representative shall make himself a party within the first ten days of the ensuing term of the court, the plaintiff in error, or appellant, shall be entitled to open the record, and on hearing have the judgment or decree reversed, if the same be erroneous : Provided, however, that a proper citation reciting the substance of such order shall be served upon such representative, either personally or by being left at his residence, at least sixty days before the beginning of the term of the Supreme Court then next ensuing; and provided also that in every such case, if the representative of the de- ceased party does not appear \>-^ the tenth day of the term next succeeding said suggestion, and the measures above provided to compel the appearance of such representative have not been taken within the time as above required, by the opposite party, the case shall abate ; and provided also, that the said represen- RULES OF THE SUPREME COURT. 679 tahv-e may at any time before or after said suggestion come in and be made a party to the suit, and thereupon the cause shall Virf/im)^ determined as in other cases No. 16. NO APPEAEAKCE OF PLAmTIFF. Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or may open the record and pray for an affirmance. {Adopted 1806, 1849.) No. ly. NO APPEAEANCE OF DEFENDANT. Where the defendant fails to appear when the cause shall be called for trial, the court may proceed to hear an argument on the part of the plaintiff, and to give judgment according to the right of the cause. (Adopted 1801.) ]Vo. IS. NO APPEAEANCE OF EITHBB PAETY. When a case is reached in the regular call of the docket, and no appearance is entered for either party, the case shall be dismissed at the costs of the plaintiff. {Adopted 1851.) IVo. 19. NEITnEE PAETT EEADT AT SECOND TEEM. When a case is called for argument at two successive terms, and upon the call at the second term neither party is prepared to argue it, it shall be dismissed at the costs of the plaintiff, unless sufficient cause is shown for further postponement. {A