iHaraliall Equttg (Halhctxan (Sift of S. 3. iiatHlfaU, Bl.ffi. 1. 1034 CORNELL UNIVERSITY LIBRARY 3 1924 085 501 264 % Cornell University y Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501264 LEADING LAW SCHOOL TEXT BOOKS Aeency — Bays. A handbook, by Alfred W. Bays, Professor of Law, Northwestern University School of Commerce. $1.S0. Agency Outlines — ^Slechem Outlines of Agency, by Floyd R. Mechem, Professor of Law In the University of Chicago. Second Edition. $2.00. Agency — ^Mechem on Agency, A treatise by Floyd R. Mechem. fS.OO net. Ain<^rtcan liaw — Andrews' American Ijaw, Second Edition by J. D. Andrews. 2 vols. $18.00. .Sam», 1 vol. ed., $6.00 net. Bailments and Carriers— Goddard's Outlines, by E. C. Goddard, Professor of Law In the University of Michigan. $8.60 net. Biiilments and Carriers— Tan Zlle, by Philip T. 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In all cases the ultimate fact or facts to be established in a suit, and upon which the rights of the parties to it necessarily depend, are, when considered with reference to the facts or evidence by which they are established or proved, but the logical results of the proofs, — or, in other words, mere conclusions of fact. Yet these logical results of the proofs or conclusions of facts, when considered with reference to the basis of the judgment to be rendered in the cause, are properly termed the "facts found," or ultimate facts in the case. The case in hand affords as good an illustration of this as any that could be suggested. Now, what was the main and ultimate fact which the plaintiff was bound to prove in order to recover? Mani- festly the city's negligence, as charged in the declara- tion. How was this to be done? Not by direct proof, for negligence is not an object of any of the human senses. It, like love, anger, or good faith, is an impal- pable entity, which exists in contemplation of mind only. While we daily see acts and conduct from which we may unerringly infer negligence, yet no one ever saw negli- gence itself. It is always a mere inference or conclusion deducible from some other fact or facts, either witnessed or satisfactorily established. When the appellate court, therefore, examined all the subordinate facts bearing upon the question of negligence, it found, as an inference or conclusion from such subordinate facts, that the city 78 BROWN V. CITY OF AURORA was not guilty of the negligence charged, and in doing SO it was acting strictly in the discharge of a proper and legitimate function, which it, and not this court, is author- ized to perform. Do counsel wish to be understood as maintaining that the facts which the appellate court is required to recite in its final order are nothing hut the evidentiary facts, — or, more shortly, the evidence in the cause? And is it only these facts this court is prohibited from consider- ing? It is manifest the legislature never could have in- tended anything of that kind. So far as the mere evi- dence or subordinate facts are concerned, there can never be any controversy as to what they are when once em- bodied in a bill of exceptions. The great controversy in all cases is, as to whether these subordinate facts prove the ultimate or issuable facts upon which every case must necessarily turn. If this court is bound to re- examine the issuable facts in every case where it is claimed the appellate court has erred in its findings, as is insisted on here, would it not necessarily lead to an examination of every case upon the evidentiary facts also? For how could the conclusions of fact be passed on without considering the testimony upon which they are based? It is clear there would be no other way of doing it, and this conclusively shows the fallacy of such a position. If the appellate court had no right to find there was, or was not, negligence on the part of the city, what should it have found? Should it merely have gone on and recited that this witness swore to this fact, and that witness swore to that fact, and so proceeded until everything testified to had been gone over ? To have done so would really have been finding nothing, for all that would have been apparent upon a mere reading of the biU of exceptions. The appellate court, where it differs from the conclusions reached by the trial court, is re- quired to recite in its final order the facts as found by that court. The expression "facts as found," necessarily ALLEGATIONS OP BILL 79 implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum prohandum, or ultimate fact or facts, upon which the case depends, and w'hich is was the duty of the appellate court to find. The errors assigned do not question any of the rulings of the circuit court. Nor is it claimed that any error of law has intervened, except that which results from the specific findings of the appellate court, and the judg- ment of reversal founded thereon. As to these matters the action of the appellate court is conclusive on this court. If its special findings were warranted by the evidence, its judgment of reversal was manifestly proper, and whether the evidence warranted the special findings is not a matter for review in this court. The judgment will be affirmed. (Note : The above, though a law case, it is authority upon ultimate facts and evidentiary facts). W^v ^ ., 26. MALDEN & MELROSE GAS LIGHT CO: v^ :[ CHANDLER 209 Mass. Rep. 356 Bbalet, J. : The plaintiff desired to enlarge its works, and the board of directors voted that the defendant, who was the president of the company, be appointed with the vice-president as a committee "with authority to pur- chase such additional land for the enlargement of the company's business as in their judgment may be advisable." The defendant, acting under the vote, appears to have conducted the negotiations which resulted in the purchase and a transfer of title to the plaintiff of the parcels of land described in the bills of complaint. It is settled, that, in the exercise of the authority conferred upon him, the defendant could not enrich himself at the expense of his principal by 80 MALDEN & MELROSE GAS LIGHT CO. V. CHANDLEE cliargiiig and receiving a larger price than that for wMcli lie actually bougM the property. Having been appointed to act in the plantiff's interest, he was bound to buy on the best possible terms, and he could not directly or indirectly make a profit for himself. If as alleged, he bought for much less than the price he represented to the plaintiff, he would be accountable for the money which the company paid him in ignorance of the decep- tion. Greenfield Savings Bank v. Simons, 133 Mass. 415 ; Quinn v. Burton, 195 Mass. 277, 279 ; Kilbourn v. Sun- ■ derland, 130 U. S. 505. The evidence at the trial as to the terms of sale was contradictory. If the defendant's testimony was ac- cepted, the payments received by him did not exceed the price for which each estate had been purchased, while the evidence of the plaintiff tended to support its conten- tion, that it had been deliberately defrauded. The credi- bility of the witnesses was for the presiding judge to de- termine, and it must be assumed that the evidence, which is fully recited, justified the findiilg that the money had been converted. But the cases being before us on ex- ceptions, the refusal of the judge to make certain find- ings of fact requested by the defendant and the general finding of conversion cannot be reviewed, as only ques- tions of law are open. Kennedy v. Welch, 196 Mass. 592. The findings upon which the judge decided that there had been a conversion and the facts upon which he re- fused the defendant's second request were not stated. It only appears that certain facts were found which rendered these requests inapplicable. The findings manifestly must have been adverse, and, if the defendant desired further information as to what they were he should have applied for and obtained them. If he deemed the conclusions to have been wholly unwarranted he fails to show that he has been aggrieved, for we do not understand him to contend, nor did he ask for a ruling that upon all the evidence, independently of the plead- ALLEGATIONS OF BILL 81 ings, the judge could not find that the defendant acted dishonestly and accordingly have ordered a decree for the plaintiff. National Mahaiwe Bank v. Barry, 125 Mass. 20. But, as to the first requests, the judge, on the assump- tion that unless he found the facts to be as therein set forth the plaintiff could not recover, refused to give them. The defendant in support of his exceptions relies on the familiar rule of equity pleading that the bill should contain a clear and accurate statement of the facts upon which the plaintiff rests its case for relief, and that it can introduce evidence only which tends to support the averments. It is then pressed that the facts recited in the requests are the essential allegations which the plaintiff was required to prove, and that unless the judge found that they had been proved a decree for the plaintiff could not be supported. It undoubtedly would have been enough to have alleged generally that the de- fendant as the agent of the plaintiff bought for a certain price the lands in question, and, having obtained unlaw- fully from the plaintiff a larger amount, he was charge- able with the overpayment, and it would be unnecessary to state minutely all the circumstances, which properly are matters of evidence. Rogers v. Ward, 8 Allen, 387 ; Lovell V. Farrington, 50 Maine, 239; G-rove v. Eentch, 26 Md. 367, 377 ; R. L. c. 159, Sec. 12. And, if the action had been at law, a count for money had and received would have been sufficient. Cole v. Bates, 186 Mass. 584, 586; Foote v. Cotting, 195 Mass. 55, 63. The stat- ing part of the bill set forth with much particularity the details of the transaction, but, even if there may have been unnecessary amplification, the material facts on which the plaintiff relied for relief are stated with cer- tainty, and if proved they were sufficient to support the decree. The allegation recurs throughout the stating part, that the defendant bought for a specific price. It is then charged, as the foundation of the right of recov- E. P. C. — 6 82 REEVES V. SLATER ery, that, wlieii the plan to defraud had been perfected, the -wrong was finally consummated by obtaining from the plaintiff by false representations amounts very largely in excess of the amount the defendant actually had contracted to pay. The essential averment follow- ing the details of the scheme was that the money had been obtained wrongfully, and the finding of a conversion must have rested on this ground. If the plaintiff was confined to this averment (and, where there is a vari- ance, recovery can be had only on the case stated in the bill and not upon the case made out by the evidence), the judge was not restricted to the actual price paid to the vendors. Gumey v. Ford, 2 Allen, 576; Drew v. Beard, 107 Mass. 64, 73 ; Harding v. Handy, 11 Wheat. 103; Crocket v. Lee, 7 Wheat. 522, 525. It might have fallen below or exceeded the amount stated and in either instance there would not have been a variance if he found that the plaintiff had been defrauded and then deter- mined the amount that the defendant wrongfully re- ceived. The ruling refusing the requests should not be interpreted as meaning that if the evidence justified recovery the plaintiff could prevail even if the proof did not correspond with the averments. It was refused, and properly refused, because it omitted all reference to the fundamental allegation of liability which the judge was satisfied had been established. We find no error in the admission and exclusion of evidence. 27. KEEVE'S V. SLATER 36 App. D. C. 489-493 Mb. Chief Justice Shbpaed delivered the opinion of the court: This is an appeal from a decree dismissing thp bill of James C. Reeves, filed December 31st, 1909 AIiLEQATIONS OP BILL 83 against John T. Slater and William J. Kehoe, to restrain execution of a judgment. It is unnecessary to set out the allegations of the bill, or the answer which denied its material allegations. It appears that Reeves had been in possession for more than twenty years of twelve lots in the city of Wash- ington, comprised in squares 604 and 605, and was de- sirous of perfecting his title thereto. After some ne- gotiations with Slater, who, it seems, was not a lawyer, but had some experience in tax titles, etc., they entered into the following agreement : ' ' This agreement, had, made, and entered into this the 22d day of January, A. D. 1904, by and between James C. Eeeves, of the city of Washington, in the District of Columbia, party of the first part, and John G. Slater, also of the said city of Washington, in the said District of Columbia, party of the second part, "Witnesseth, That the said party of the first part is in adverse possession for more than twenty (20) years of certaia lots situated, lying, and being in the city of Washington, in the said District of Columbia, and known and distinguished as and being lots numbered one (1) to six (6), both inclusive, in square numbered 604, and lots numbered one (1) to six (6) in square 605; that he is desirous of filing a bill in equity to quiet the title to the same: "Now, therefore, this agreement witnesseth, That for and in consideration of the said party of the second part securing the services of counsel to file such bill and prosecute the suit to its final termination without cost to the said party of the first part, he, the said party of the first part, for himself and his heirs, executors, ad- ministrators, and assigns, doth hereby covenant and agree to and with the said party of the second part, his heirs and assigns, that he will pay to the said party of the second part, his heirs and assigns, the sum of $100 per lot, or he will give to the said party of the second 84 REEVES V. SLATSlB part a first deed of trust for tlie said $100 per lot, on each of the said lots in the aforesaid squares. In witness whereof the said party of the first part has hereunto set his hand and seal the day and year first hereinbefore written. "James C. Reeves. (Seal.) "Witness: "Thomas W. Soran. "John T. Noebis." For some unexplained reason, this contract was not executed by Slater, but no question seems ever to have arisen on that ground. Slater went on under it and employed an attorney, Hallam, who filed a bill to quiet the title aforesaid. Dur- ing its progress. Slater advanced some money for costs ; but, failing to pay the examiner who took depositions in the case, Eeeves was compelled to secure the same. A decree quieting the title was obtained, which Slater as- sured Reeves perfected his title. A controversy arose concerning the payment to Slater, and the parties en- tered into an agreement for arbitration. This agree- ment, with award of the arbitrator, its acceptance by the parties, and the transfer of Slater's rights therein, are in connected writings as follows : — "Whereas there is a question arising as to what John G. Slater is entitled to under a certain contract between him and James C. Reeves, relating to the perfecting of title to squares 604 and 605. "We hereby agree that 0. B. Hallam is hereby con- stituted arbitrator between us, and that he shall de- termine from his knowledge of the whole case and situa- tion as to contract, etc., without any further hearing or testimony, what, if any, amount said Reeves shall pay to Slater, — said amount to be over and above $300 attor- neys' fees and costs in the suit brought by Reeves. "James C. Reeves. "John G. Slateb." ALLEGATIONS OP BILL 85 "I find and award that Reeves, in addition to paying $300 attorneys' fees and $110 examiner's fees, pay to Slater $500 ; that Slater is not to make any claim against him for any cost he has heretofore paid; but that both Slater and Reeves are to be refunded according as they respectively paid them such costs as may be collected from the defendants in the suit. "0. B. Hallam. "May 1st, 1907. "We accept this award, May 7th, 1907. "James C. Reeves. "John G. Slatee." "For value received, I hereby transfer all my right, title, and interest in the above agreement and settlement to Mattie R. Slater. "John G. Slatee." Reeves paid Hallam's fee, but failed to pay Slater or his assignee. Slater, to the use of the assignee, sued Reeves in the municipal court on August 3d, 1909. Reeves was regularly summoned. Failing to make an affidavit of defense, in reply to plaintiff's verified com- plaint, judgment was entered against him, on August 10th, 1909, for $500 and interest. This was certified to the supreme court of the district, and execution issued thereon was returned not satisfied November 8th, 1909. This judgment has been entered of record to the use of the defendant Kehoe. There was no error in dismissing the bill. There is no evidence of fraud practised in the proceedings resulting in the judgment that is attacked; and no accident pre- vented plaintiff from making defense to the action. There is no explanation of, much less excuse for, the failure to offer any defense. Assuming that the cham- pertous nature of the original contract could have been offered in defense, it was apparent when that contract was executed in 1904. If the contract was exorbitant, and the fact might have 00 REEVES V. SLATER been ground of defense, it soon became known, and tbe controversy over it ended in tbe arbitration and award made in May, 1907. If tbere had been a failure on Sla- ter's part to obtain a proper decree quieting the title, as lie had contracted to do, it would seem that ordinary diligence would have discovered the fact before August, 1909. But, passing by the question of plaintiff's negligence, and assuming that the failure to defend the action cannot be attributed to his neghgence or default, there is no evidence in the case to show that he had any substantial defense. Conceding that the contract with Slater was not only most improvident, but champertous in its terms, and one that ought not to have been enforced against the plaintiff, yet no case is made out for relief through this bill. He had insisted that the compensation provided in the contract was excessive, but admitted that Slater was entitled to something for his services. The matter of compensation was submitted to arbitration. When the award was made, plaintiff accepted it, and paid the at- torneys' fee as settled thereby. The action was upon this award, and the champertous nature of the original contract was no defense to it. "While the contract was probably a foolish one, there is not a particle of evidence tending to show that fraud or imposition was practised upon plaintiff to induce him to enter into it. The claim that the decree quieting the title was irregular and inoperative is also without support iu the record. The bill alleged in general terms that it was defective, ^nd failed to perfect the title and make it marketable, but stated no fact by which the soundness of this con- clusion could be tested. The only evidence offered was that a title company had pronounced against the title, but there was no competent evidence of any ground for that opinion. The decree must be a£Srmed, with costs ; and it is so ordered. ALLEGATIONS OF BILL 87 28. MURPHY V. MURPHY 189 III. 362 Mb. Justice Magrxjder delivered the opinion of tlie court : The following allegation in the bill filed in this ease, taken in connection with the other allegations of the bill, as set forth ra the statement preceding this opinion, presents the questions, which arise upon a de- murrer to the bill, to-wdt : ' ' That neither the said Joseph H. Murphy, nor Mary J. Crane, paid any consideration for said property; that your orator is informed and be- lieves, that said Joseph H. Murphy procured said war- ranty deed from said Thomas Murphy by agreeing to pay biTn $5000.00 therefor, but your orator states that said Joseph H. Murphy never intended to pay his father any part of said $5000.00 but that said promise was a device to and did mislead the said Thomas Murphy, and to enable the said Joseph H. and his wife to get said prop- erty without consideration, and to exclude the said broth- ers and sisters from and deprive them of their natural rights and interests in said property, or the proceeds thereof, as the heirs of said Thomas Murphy.'' The main question, presented by the demurrer, is whether the allegation, so as above quoted from the bill, was sufficient as a charge of fraud against the defendants in error, Joseph H. Murphy and Mary C. Murphy, to have justified the court below in retaining the bill, and re- quiring it to be answered. The bill seeks to set aside the deeds to Joseph H. Mur- phy and Mary C. Murphy upon the theory, that Joseph H. Murphy procured a warranty deed to himself from Thomas Murphy by agreeing to pay him the sum of $5000.00, the said Joseph H. Murphy never intending, however, to pay that sum, and never having paid the same. The bill presents simply the case of a contract unperformed on the part of the grantee. This being so, 88 MXIBPHY V. MURPHY the remedy is clearly at law, and suit should have been brought by Thomas Murphy in his hfetime, or by his personal representatives, for the purchase money. But, independently of this consideration, the bill merely charges a false representation as to a matter of intention. The allegation is, that Joseph H. Murphy pro- cured the deed from Thomas Murphy by agreeing to pay him $5000.00 therefor. If he agreed to pay $5000.00 therefor, he in effect announced his intention to pay $5000.00, and the only charge of fraud is, that he did not intend to pay, when he represented that he did intend to pay. In other words, the allegation in question involves a mere promise to do a thing in the future. The repre- sentation can only be regarded as fraudulent and false from the fact, that Joseph H. Murphy never did pay $5000.00 for the property in question, and, therefore, was guilty of a breach of his promise, and nothing more. It follows, that the bill does not show such fraud on the part of Joseph H. Murphy in procuring the execution and delivery of the deed, as will authorize a court of equity to set it aside. The law upon this subject is well settled. Kerr, in his work on Fraud and Mistake, (Bump's ed., p. 88) says : "As distinguished from the false representation of a fact, the false representation as to a matter of intention, not amounting to a matter of fact, though it may have in- fluenced a transaction, is not a fraud at law, nor does it afford a ground for relief in equity." The foregoing statement of the law has been quoted with approval by this court in the following cases, to-wit : Gage v. Lewis, 68 111. 604; People v. Healy, 128 id. 9; Haenni v. Bleisch, 146 id. 262. A false representation, within the meaning of the law, must be a representation as to an existing or past fact, and not merely a promise to do an act in the future. "A failure to comply with such a promise does not constitute fraud. The general rule is that, to am ount to fr ^ud, the re must be a wilful, false representation as ALUEGATIONS OF BILL 89 _to_an existing:_or_giast fact.'' (Murray v. B. P. Smith & Sons,'4^Ill. App. 548.) In Gage v. Lewis, supra, it was said "that to warrant an action for a deceitful representation it must assert a fact or facts as existing in the present tense. A prom- ise to perform an act, though accompanied at the time with an intention not to perform, is not such a represen- tation as can be made the ground of an action at law. The party should sue upon the promise, and if this be void he has no remedy." (Gallagher v. Brunei, 6 Cow. 346.) Even if at the time when such representations, amounting to a mere promise to do an act in the future, are made, it is not intended to comply with them, it is but an unexecuted intention, which has never been held of itself to constitute fraud. (Gage v. Lewis, supra.) In Haenni v. Bleisch, supra,, it appeared, that a father induced one of his daughters to make a deed, and rep- resented that, if she would do so, he would pay the value of the lands, conveyed to her, in money or other prop- erty; and this representation was held to be a mere promise to do a thing in the future ; it was also there held that the representation, so made by the father to his daughter, could not be regarded as fraudulent and false, as the only allegation of fraud and falsehood consisted in the fact that the father never did pay the value of the lands to his daughter, and this fact was held to have amounted merely to a breach of the promise, and nothing more. In the case at bar, the allegations of the bill are similar to those in the case of Haenni v. Bleisch, supra, and must be governed by the principles there announced. ' ' In alleging fraud, it is well settled, both at law and in equity, that the mere general averment, without setting out the facts, upon which the charge is predicated, is insufficient. * * * It is essential that the facts and circumstances which constitute it (the fraud) should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon 90 MUEPHT V. MURPHY to answer. " (9 Ency. of PI. & Pr. pp. 686, 687 ; Brooks v. 'Hara, 8 Fed. Eep. 529 ; Jones v. Albee, 70 111. 34 ; Klein V. Horine, 47 id. 430.) In Smith v. Brittenham, 98 111, 188, we said : ' ' Charges of fraud should not be general, but the facts should be stated upon which the charges are based." Here, the bill does not state the circum- stances, under which the deed from Thomas Murphy to Joseph H. Murphy was executed, nor does it state in what the agreement, claimed to have been made with fraud- ulent intent on the part of Joseph H. Murphy, consisted. The agreement is the foundation, upon which the plain- tiff in error, William M. Murphy, seeks to base his claim for relief, but it does not appear from the bill when the agreement was made, or whether it was oral or in writ- ing, or when the money was to be paid, nor does the bill state clearly any of the terms of the agreement. Moreover, the allegation of fraud, as made in the present bill, is made upon information and belief; and "an allegation of fraud upon information and belief can not be sustained, tmless the facts, upon which the belief is founded, are stated in the pleadings." (9 Ency. of PI. & Pr. p. 694; Brooks v. O'Hara, supra.) "A mere state- ment that the plaintiff is informed, or is informed and believes, puts in issue only his information and belief, and not the truth or falsity of the facts thus referred to. ' ' (3 Ency. of PI. & Pr. p. 363; Walton v. Westwood, 73 111. 125.) In view of what has been said, the allegation in the present bill cannot be regarded as charging any agree- ment whatever between Thomas Murphy and Joseph H. Murphy as to the payment of $5000.00. The demurrer does not admit the existence of the agreement, but only the information and belief of the complainant in the bill upon the subject. As the fraudulent intent is based upon this supposed agreement, the bill fails to allege fraud with sufiScient clearness. ALLEGATIONS OF BILL 91 For the reasons above stated, we are of the opinion that the bill was demurrable, and that the general demur- rers thereto were properly sustained by the court below. Accordingly, the decree of the court below in dismiss- ing the bill is affirmed. VII IMPERTINENCE 29. HOOD V. INMAN 4 Johns. Ch. (N. Y.) 437 ^-The Chancelloe: 1. It was not necessary to set forth the power of attorney in haec verba, in the answer. The substance of it was accurately stated in the bill, and to give it at length in the answer, was impertinent. Im^; pertinence consists (1 Harr. Pr. 101, 303) in setting forth what is not necessary to be set forth, as where the plead- ings are stuSedTwith long recitals, or with long digres- sions_pf matters of fact which are totally immaterial. An answer, or a bill, ougEFnot, ordinarily, to set forth deeds in haec verba; and if the pleader sets forth only so much thereof as is material to the point in question, it is sufficient. They are matter of evidence to be shown at large at the hearing. In Alsager v. Johnson (4 Ves. 217) a bill of costs was given at large in the schedule to the answer, when a reference to the bill of costs delivered would have fully answered the purpose, and it was deemed impertinent. The present is not an instance of gross abuse of this rule of pleading ; but I am glad to see the exception taken, and the point brought up, for the opportunity it affords of laying down the rule. I have frequently perceived the pleadings, and particularly the bill, encumbered with a recital in haec verba, of deeds, mortgages, and other documents, which, unless checked, will lead to great oppression of the suitor, and to the re- proach of the Court. Whenever a proper case arises, I shall certainly mark it with animadversion ; and shaU en- deavor to enforce, by all suitable means, precision and 93 IMPERTINENCE 93 brevity in pleading. The objection to unnecessary folia, may be taken on the taxation of costs. The ancient rules and orders of the English Court of Chancery, are very explicit, and powerfully monitory on this subject. If any pleading should be found of an immoderate length. Lord Bacon declared, that both the party and the counsel, under whose hand it passed, should be fined. And Lord Keeper Coventry, with the advice of Sir Julius Caesar, the master of the rolls, in 1635, ordained, that bills, answers, etc., ' ' should not be stuffed with the repe- titions of deeds or writings in haec verba, but the effect and substance of so much of them only as was pertinent and material to be set down, and that in brief and effect- ual terms, &c., and upon any default therein, the party and counsel, under whose hand it passed, should pay the charge of the copy, and be further punished as the case should merit." The same rule was, afterwards, adopted, or re-enacted, by the lords commissioners in 1649, and in Lord Claren- don's Digest or System of Rules (Beame's Orders, 25, 69, 165). But we have a domestic precedent on this point, which is too interesting to be unnoticed. In 1727, Governor Burnet, of the colony of New York, exercising, in council, the powers of a Court of Chancery, appointed five of the most distinguished counsel of the court, as a committee, "to consider and report on the fees and dilatory proceedings in the Court of Chancery, as true and great grievances. ' ' This committee, consist- ing of Archibald Kennedy, Rip Van Dam, Cadwallader Colden, James Alexander, and Abraham Van Horn, re- ported to the counsel a number of abuses in the practice of the Court of Chancery, and the remedy. This report, which is inserted at the end of Bradford's edition of the Colony Laws, is a curious and instructive document ; but my concern, at present, is only with what is termed the 94 WOODS V. MOREELL first abuse and remedy. It declares, "as an abnse, the inserting, at too mucli length, in hills, matters of induce- ment only. Thus, if A. has been entitled to the thing in question, who conveyed it to B., who conveyed it to C, who conveyed it to the plaintiff; after the thing is cer- tainly set forth in A., it is enough to say, he conveyed it to B., and he to C, and he to the plaintiff, as, by the deeds ready to be produced, will appear." No counsel, say they, ought to set their hands to any hill that is unduly long, and if he does, he ought to pay all the charges aris- ing from such needless length. The exception to the master's report, allowing this first exception, is overruled, 2. The same objection apphes to the matter forming the ground of the second exception. It was matter argu- mentative, rhetorical, irrelative, and, consequently, im- pertinent. Pleadings should consist of averment, or al- legations of fact, and not of inference and argument. The exception to the report is, also, overruled; and as the fault of the pleader was of a venial character, I am content that the costs of the exceptions, in this particular case should abide the event of the suit. Order accordingly. 30. WOODS V. MOEEELL 1 Johns. Ch. N. Y. 103 The Chancellor : The English practice is not to make formal and special exceptions in writing, in the first in- stance, to an answer for scandal or impertinence, as is done for insuJBficiency; but on a suggestion, by motions, of such matter, the answer is referred to a master to look into; and if he certifies against the exception the plaintiff may except in writing to the report, and specify the particular parts which are scandalous or impertinent ; IMPEBTINENCB 95 and this reference for impertinence must precede one for insufficiency. I find, however, that a different practice prevails here in this court, and instead of a loose and general suggestion, the party does, iu the first instance, what he eventually may be obliged to do under the Eng- lish practice, and the objections to the answer, as well for impertinence as for insufficiency, go at once to the master, and are disposed of together. I do not perceive any strong objection to this mode of practice which ought to induce me to interfere and change it. It may save time; for it admits of but one reference to the master, instead of two ; and by reducing the exceptions to writ- ing, and specifying the parts that are deemed imperti- nent, there is greater precision and certainty in the pro- ceeding. With respect to the merit of the exceptions, I would first, generally, observe that from the short experience I have had in this court it appears that much tedious discussion and delay have arisen from what are deemed defective or impertinent parts of an answer. The gen- eral rules on this subject are founded in good sense and sound justice, and they cannot be too well understood nor too strictly enforced ; the neglect of them will always receive disapprobation. If answers are to be made the vehicle of recrimination, or of matter of mere history, or inducement, or scandal, not pertinent to the ease, and only usefid to excite prejudice, the character of plead- ings in this court would be degraded. And if the defend- ant is not compelled to a full, frank, and explicit dis- closure of everything properly required of him, and resting in his knowledge, information, or belief, one of the most salutary ends of the jurisdiction of this court would be defeated. 1. As to impertinent matter, the answer must not go out of the bill to state that which is not material or rela- vant to the case made out by the bill. Long recitals, di- gressions, stories, conversations, and insinuations tend- 96 WOODS V. MOERELL ing to scandal, are of this nature. Facts not material to the decision are impertinent, and, if reproachful, they are scandalous; and perhaps the best test by which to ascertain whether the matter be impertinent is to try whether the subject of the allegation could be put in is- sue and would be matter proper to be given in evidence between the parties. If, indeed, the plaintiff will put im- pertinent questions, he must take the answers to them, though they be impertinent; but it will depend upon the reason of the thing and the nature of the case, bow far a general inquiry will warrant an answer leading to detail. The court will always feel disposed to give the ansAVer a liberal consideration on this point of matter irrelevant, and to consider whether it can have any real and proper influence upon the suit, having regard to the nature of it as made by the bill. Cooper's Treatise, 318; Mitf. 248; Peck v. Peck, Mose- ley, 45; St. John v. St. John, 11 Ves. 526; The case of Smith V. Reynolds, Moseley, 69, gives us a sample of mat- ter which was at the same time impertinent and scanda- lous. The plaintiff filed his bill to be relieved against a stale bond, and mentioned the fact of a subsequent bond which he had somehow lost and by reason of which he was obliged to sue the defendants in chancery, and had recovered. The defendant in his answer said that he did not believe that the plaintiff had lost the bond last men- tioned, but believed that he had fraudulently concealed or destroyed it; and the chancellor very properly held that the defendant had denied what was not material and what the plaintiff did not require him to answer; and that he had gone out of the way purely to reflect on the plaintiff. 2. With respect to the sujfficiency of the answer, the general rule is that to so much of the bill as is material and necessary for the defendant to answer he must speak directly, without evasion, and not by way of negative pregnant. He must not answer the charges merely liter- IMPERTINENCE 97 ally, but he must confess or traverse the substance of each charge positively and with certainty; and particu- lar, precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges. Indeed, as Lord Eldon observed, the policy of the proceedings in this court is that a general denial is not enough ; but there must be an answer to the sifting inquiries upon the matter charged. If a fact be charged which is in the defendant's own knowledge, he must answer positively, and not to his remembrance or belief; and as to facts not within his knowledge he must answer as to his information or belief, and not to his information or hearsay merely, without stating his belief one way or the other. Bohun, Cur. Can. Ill; Wyatt, P. Eeg. 13, 14; 1 Har. Ch. Pr. 302, 303; Mitf. 246, 247; Cooper, 313, 314. 3. In the application of these general principles to the exceptions before me, the task is easy, because, by applying the case to the rule, it will readily be perceived that most of the exceptions are well taken for imperti- nence and for insufficiency. I shall not go into particu- lars. The exceptions allowed are noted, and they, for the most part, speak for themselves. Most of what was said by the defendant Morrell, for instance, concerning the history of a voluntary deed of trust from Saekett to him and others, was irrelative to the subject-matter of the bill, viz., the fraudulent sale and purchase under the exe- cution; and it is, at the same time, replete with insinua- tions and reflections against the plaintiff. I accordingly allow twenty-five of the exceptions taken to the answer of Morrell, and ten of those taken to the answer of Weller, and nineteen of those taken to the answer of Sleght. The following exceptions to the answer of George Mor- rell are allowed, viz., the 2d, 3d, 6th, 7th, 9th, 11th, 12th, 14th, 16th, 17th, 19th, 21st, 22d, 25th, 26th, 27th, 28th, 29th, 31st, 32d, 33d, 34th, 35th, 36th and 37th. E. P. C— 7 98 WOODS V. MORRBUi The following exceptions to the answer of Hiram Wel- ler are allowed, viz., the 2d, 4th, 6th, 7th, 8th, 9th, 10th, 12th, 13th, 14th. The following exceptions to the answer of Solomon Slegt are allowed, viz., the 1st, 2d, 3d, 4th, 7th, 8th, 9th, 10th, 11th, 13th, 14th, 15th, 16th, 17th, 18th, 19th 20th, 24th and 25th. The question of costs is reserved. VIII MULTIFARIOUSNESS 31. BACKUS V. BROOKS 189 Fed. 923 Platt, Distbict Judge: It would be a tremendous task to buncli in this memorandum the facts which seem to be well pleaded in the bill, and therefore admitted by the demurrer. It is an unusually verbose and compli- cated presentation of facts, and will speak for itself. No abstract which satisfies my mind would help the higher powers, and therefore I refrain from the attempt. At the time the bill was filed an ex parte request was made for a preliminary injunction to prevent the alienation of stock in the Sealshipt Oyster System by either Brooks or the System until final hearing. When the affidavits were read, I was instantly satisfied that such an order was not warranted by the facts presented, which were substantially those found in the bill. There were two sets of plaintiffs and two sets of de- fendants. One of the plaintiffs presented a state of facts which seemed to set forth a wrong which ought to be dealt with in a court of law. The other plaintiffs pre- sented a state of facts which many years before might have appealed to the conscience of a court of equity, if the proper parties had come before it ; but it struck me that they came too late, and in an improper manner, and with no very definite idea of what their wrongs were and what party they expected the court to enforce a rem- edy upon. The preliminary injunction was therefore refused, and later came the demurrers, amplifying and defining with accuracy the vague notions which came over me at the beginning. 99 100 BACKUS V. BROOKS I do not know of any equity role, written or unwritten, wMch prohibits the defendants from filing such, demur- rers as those here presented without first answering the allegations of fraud. Certainly no rule, with even a strained construction put upon it, could affect the rights of the Sealshipt Oyster System. Taking the broadest view possible of the facts and equity rule 32, I cannot accept the dicta found in Johnston v. Mercantile Co. (D. C.) 127 Fed. 845, and Jahn v. Lumber Co. (C. C.) 147 Fed. 631. Those cases were both properly decided on the facts, and the reference to an uncited equity rule w'as unnecessary. It is probable that in neither case was the matter taken up, except in the most incidental way. Equity rule 32 was not even mentioned. There are two main lines of attack in this bill. One by A. Backus, Jr., & Sons Corporation against the Sealshipt Oyster System, counting on a breach of contract between the plaintiffs and defendant's predecessor, the American Company. The other is by Newton D. and Henry N. Backus, asserting their rights to have certain stock of the System turned over to them in place of stock which they ought to have had in the System's predecessor, the National Company, which followed the American Com- pany. These rights are based entirely upon their owner- ship of stock in the American Company, and are inde- pendent and wholly apart from the contract rights which the Backus Corporation asserts. The parties are differ- ent and demand different rights. N. D. and H. N. Backus had no interest primarily ia the contract, and the Backus Company long ago parted with all right and title to the stock. They not only demand different rights, but one demands a right for which it should go into a law court to seek redress, and the other demands an equitable right about which the facts must have been known to them years ago, and which, if demanded promptly and sus- tained by proof, would have been long since settled. To do anything about it now would work harm to numberless MULTIPABIOUSNESS 101 innocent parties who have become stockholders of the Sealshipt System in entire ignorance of any such story as the one here portrayed. In all this matter the obliga- tions upon the defendant's part arose at different times. The evidence required to establish the separate claims is different, and the kinds of relief demanded differ. When the charge of multifariousness comes up against a bill, I am aware that a court of equity will exercise a large discretion and retain the bill, if possible; but in such a case as the one before us the quagmire is so treacherous and the enveloping forest so dense that I am unable to see any way out of it, if I shall once begin to travel through it. For the reasons faintly outlined, and for many un- touched, the demurrers must be sustained and the bill dismissed, with costs. 32. HAYES V. DAYTON 18 Blatchford 420 Blatchfoed, J.: The bill in this case states that the plaintiff invented certain "improvements in ventilators, skylights, skyhght turrets, conservatories and other glazed structures and ventilating louvres," described in "several letters patent and re-issues thereof." It then avers that he obtained six several patents, Nos. 94,- 203 and 100,143, and 106,157, and 112,594, and 143,149, and 143,153; that he obtained re-issues of all of them, the re-issues being six in number, one of each (though it does not appear of which original any particular re- issue is the re-issue), the re-issues being number 8,597 and 8,764, and 8,675, and 8,676, and 8,688, and 8,689 ; and that, since the re-issues, the defendant has, without au- thority, infringed said several re-issues, and made, used and sold said inventions. The bill interrogates the de- 102 HATES V. DAYTON fendant as to whether he has made and sold "ventilators, skylights, skylight turrets, conservatories and other glazed structures and ventilating louvres, and embraced within any or either" of the said "several letters pat- ent and re-issued letters patent;" also, in four several questions, as to whether he has made, sold or used what is claimed in each one of the four claims in re-issue No. 8,597, quoting it; and the like as to each one of fifteen claims in re-issue No. 8,674, and of seven claims in re- issue No. 8,675, and of two claims in re-issue No. 8,676, and of seven claims in re-issue No. 8,688, and of three claims in re-issue No. 8,689, there being thirty-eight sev- eral claims thus inquired about. The bill prays for a recovery of the profits and damages from the said un- lawful making, using and selling, by the defendants, of the said "improvements in ventilators, skylights, sky- light turrets, conservatories and other glazed structures and ventilating louvres." The defendant demurs to the whole bill, and in the demurrer shows, for cause of demurrer, "that it appears by the said bill that it is exhibited against this defend- ant for several and distinct matters and causes, in many whereof, as appears by said bill, the defendant is not in any manner interested or concerned, and which said sev- eral matters and causes are distinct and separate one from the other, and are not alleged in said bill to be con- jointly infringed by said defendant. ... By reason of the distinct matters therein contained, the complain- ant's bill is drawn out to considerable length, and the de- fendant is compelled to take a copy of the whole thereof, and, by joining distinct matters together, which do not depend on each other, in the said bill, the pleadings, or- ders and proceedings will, in the progress of the said suit, be intricate and prolix, and the defendant be put to unnecessary charges in taking copies of the same." The defendant, ' ' not waiving his said demurrer, but rely- MULTIFARIOUSNESS 103 ing thereon," has put in, simultaneously, an answer to the whole bill. This demurrer does not use the word "multifarious." A bill is multifarious when it improperly unites in one bill, against one defendant, several matters perfectly distinct and unconnected, or when it demands several matters of a distinct and independent nature against several defendants in the same bill. The reason for the first case is that the defendant would be compelled to unite, in his answer and defense, different matters, wholly unconnected -with each other, and thus the proofs applicable to each would be apt to be confounded wi*t^ each other, and delays would be occasioned by waiting for the proofs respecting one of the matters, when tbe' others might be fully ripe for hearing. The reason of the second case is, that each defendant would have an unnecessary burden of costs by the statement in the pleadings of the several claims of the other defendants, with which he has no connection. Story's Bq^Pl., sec. 271. The demurrer in this case is intended to be a de- murrer for misjoining causes of suit against one defend- ant. Yet much of it is inapplicable to such a case, and is taken from a form which applies only to the case of a demurrer by one of two or more defendants who has no concern with causes of action stated against the other defendants, such a demurrer being really a demurrer for a misjoinder of parties. Story's Eq. PL, sec. 530, and note 3, where is to be found the form improperly used in this case. Yet there seems to be enough left, after re- jecting as surplusage the improper and unnecessary part, to raise the point intended. The demurrer, in Re- gard to misjoining causes of suit against the defendant, substantially avers that the bill is brought for several matters and causes which are separate and distinct one from the other, and are not alleged to be conjointly in- fringed by the defendant. This means that the patents sued on are distinct one from the other, and that they are 104 HAYES V. DAYTON not alleged to be conjointly infringed in any one article wMch the defendant has made or used qr sold. This averment of the demurrer is true. Where there is a joinder of distinct claims between the same parties, it has never been held, as a general proposition, that they cannot be united, and that the bill is, of course, demurrable for that cause alone. Nor is there any positive, inflexible rule as to what, in the sense of courts of equity, constitutes a fatal multifariousness on demurrer. A sound discretion is always exercised in determining whether the subject-matters of the suit are properly joined or not. It is not very easy, a priori, to say exactly what is or what ought to be the true line regu- lating the course of pleading on this point. All that can be done in each particular case as it arises is to consider whether it comes nearer to the class of decisions where the objection is held to be fatal, or to the other class where it is held not to be fatal. In new cases the court is governed by those analogies which seem best founded in general convenience, and will best promote the due administration of justice, without multiplying unnec- essary litigation on the one hand, or drawing suitors into needless and oppressive expenses on the other. Story's Eq. PI., sees. 531, 539; Herman Patent Mfg. Co. V. Brooklyn City E. E. Co., 15 Blatch. 444. "We are not without cases on this subject, in suits on patents in this country. In Nourse v. Allen, 4 Blatch. 376, in 1859, before Mr. Justive Nelson, a bill on four pat- ents were held good on demurrer, where it alleged that the machine used contained all the improvements in all the patents. The court thought that the convenience of both parties as well as a saving of expense in the litiga- tion seemed to be consulted in embracing all the patents in one suit in such a case ; and that, although the defenses as respected the several improvements might by differ- ent and unconnected, yet the patents were connected with each other in each infringing machine. MULTIFARIOUSNESS 105 In Nellis v. McLanahan, 6 Fish. Pat. Cas. 286, in 1873, before Judge McKennan, it was held that where a suit in equity is brought for the infringement of several pat- ents for different improvements, not necessarily embod- ied in the construction and operation of any one ma- chine, the bill must contain an explicit averment that the infringing machines contain all the improvements em- braced in the several patents, or it will be held bad for multifariousness on demurrer. In Gillespie v. Cummings, 3 Saw. 259, in 1874, before Judge Sawyer, the bill was founded on two patents for the manufacture of brooms. There was a demurrer on the ground of the joinder of two separate and distinct causes of action. It appearing by the bill that the defend- ant's broom, in infringing, must be an infringement of both of the patents, and that there was, therefore, a com- mon point to be Htigated, and much of the testimony must, from the nature of things, be applicable to both of the patents, the bill was held good. In Horman Patent Mfg. Co. v. Brooklyn City R. R. Co., 15 Blatch. 444, in 1879, before Judge Benedict, a bill in equity on two patents alleged that the defendant was using machines containing in one and the same appa- ratus the inventions secured by each of the two patents. It was demurred to on the ground that it did not allege that the devices were used conjointly or connected to- gether in any one apparatus, but the demurrer was over- ruled. The court held that, as the bill did not show the controversy to be of such a character that prejudice to the defendant would result from the joinder in one action of the causes of action joined, the bill must be sustained. The court was of opinion that, in the absence of any other fact, the circumstance that the two transactions com- plained of were the use, in a single machine, of two pat- ented devices connected with the mechanism of the ma- chine, warranted the inference that no prejudice would 106 HAYES V. DAYTON result to the defendant from the joinder of the two transactions. The decisions above cited all tend in one direction. The decision in Case v. Eedfield, 4 McLean, 526, if lim- ited, as it apparently ought to be, to the case of an original patent, and of another patent granted in terms as an improvement on the original patent, is not like the present case as shown by the bill. It is a case difficult to understand, and if it were like the present case in its facts, whatever there is in the decision of it tending to sustain the bill in this case is opposed to all the other cases on the subject. The present case appears to be a suit on thirty-eight claims in six different patents. There is nothing to show that any two or more of the patents are in fact, or are capable of being used in making a single structure, much less that the defendant has so used them. So far as the bill shows, the causes of action are as distinct as the pat- ents. The patents are not shown to be connected with each other in any infringing machine, or to be used at the same time in any infringing machine. The contro- versy in this suit appears, from the bill, to be of such a character that prejudice will result to the defendant from being called upon to defend in one suit against thirty-eight claims in six different patents, no two of which claims, so far as the bill shows to the contrary, are employed in any one machine. On this ground the bill must be held bad. The plaintiff contends that the putting in of an answer to the whole bill is a waiver of the demurrer. Rule 32 in equity permits a demurrer to a part of a bill, a plea to a part, and an answer as to the residue. If, impliedly, that rule forbids a demurrer to the whole bill, and at the same time an answer to the whole bill, the plaintiff's remedy is by moving to strike out either the answer or the de- murrer, or to compel the defendant to elect which he will abide by. By going to argument on the demurrer the MULTIFARIOUSNESS 107 plaintiff waives the benefit of the objection now taken, if otherwise he would have it. Moreover, rule 37 in equity provides that "no demurrer or plea shall be held bad and overruled upon argument, only because the an- swer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea." This rule Avas first made in March, 1842, to take effect August 1, 1842. 17 Pet. Ixvii. There was no such rule in the prior rules of March, 1822 (7 Wheat, v), al- though rule 18 in such prior rules was the same as the above present rule 32. Under the rules of 1822, not only had it been held (Ferguson v. O'Harra, Pet. C. C. 493) that, where there was a plea going to the whole bill and also an answer to the whole bill, the court would, on the plaintiff's motion, disallow the plea, on the ground of its being overruled by the answer, but Judge Story had held in 1840, in Stearns v. Page, 1 Story 204, that where a plea stated a ground why the defendant should not go into a full defense, and yet the defendant answered putting in a full defense, it would be held, on the argu- ment of the plea, that the answer overruled the plea. Then rule 37 was made. It applies to the present case. The demurrer is allowed, with costs. IX LACHES 33. SULLIVAN v. EAILEOAD CO. 94 U. S. 806 The defence of the Statute of Limitations is not set up by plea nor in the answers. "We cannot, therefore, con- sider the case in that aspect. Wilson v. Anthony, 19 Ark. 16. Me. Justice Swayne : To let in the defence that the claim is stale, and that the bill cannot, therefore, be sup- ported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive, and refuse relief. Every case is governed chiefly by its own cir- cumstances; sometimes the analogy of the Statute of Limitations is applied; sometimes a longer period than that prescribed by the statute is required ; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is com- petent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accord- ingly. Wilson V. Anthony, 19 Barber (Ark.), 16; Taylor V. Adams, 14 id. 62; Johnson v. Johnson, 5 Ala. 90; Ferson v. Sanger, 2 Ware, 256 ; Fisher v. Boody, 1 Curtis, 219 ; Cholmondly v. Clinton, 2 Jac. & Walk. 141 ; 2 Story's Eq., sect. 1520a. "A court of equity, which is never active in giving relief against conscience or public convenience, has, always refused its aid to stale demands where a party haa 108 LACHES 109 slept upon Ms rights, and acquiesced for a great length, of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced ; and, therefore, from the beginning of this jurisdiction there was always a Umitation to suits in this court." Smith V. Clay, Ambler, 645. If the complainants had severally sought to enforce their claim in an action at law, ex delicto or ex contractu, the bar of the Statute of Limitations would have been complete after the lapse of six years. Eev. Stat, of 1857, p. 510. This biU was filed on the 21st of February, 1871. The complainants were supine and silent for more than seventeen years. In the meantime, the Keimebec and Portland company became hopelessly and finally insol- vent, and its affairs a wreck. Proceedings were instituted to foreclose the second mortgage, and brought to a close. The company lost all its property, and has since existed only in name. A new corporation has come into existence, and acquired and owns all the property and effects lost by the old one. This transfer occurred more than seven years before the first step was taken in the present case. This long delay thus characterized is unaccounted for. The facts are amply suflficient to warrant the apphcation of the rule of laches, and to give it the fullest effect. Decree affirmed. Note : Part of above opinion, not bearing on Equity Pleading and Practice, omitted. X DEMURRERS 34. LEGGETT ET AL. v. BENNETT 48 Ala. 380 Justice Saffold: The appellants, as complainants, alleged that as the heirs of their father, Marlin Nail, they were entitled to certain property of which he died seized and possessed; and to certain other property which was ascertained, after his death, to be due to his estate, by a decree of the probate court, on the final set- tlement and distribution of the estate of his father, Wil- liam Nail. That his administrators, Floyd Nail, who was also the acting administrator of William Nail's estate, was directed by the probate court to retain in his hands this last mentioned property, as that of his estate, which he did. The administrators of William Nail, and the adminis- trator of Marlin Nail having died insolvent, as is charged, the bill sought the recovery of all the property above mentioned from their respective sureties. Those who survive, and the representatives of those who have died, were made defendants. The bill was demurred to for want of equity, misjoinder of parties defendant, and multifariousness. It was dismissed on demurrer without prejudice. Of these defendants, Floyd Nail, as the administrator of Marlin Nail, and his sureties, were alone responsible for that portion of the property which his intestate died seized and possessed of. If, as the bill alleges, there was a final settlement and distribution of the estate of Wil- liam Nail, and the distributive share of Marlin therein became chargeable to Floyd Nail, as his administrator, 110 DEMURRERS 111 then he and his sureties were alone responsible for it; and no liability is shown against the sureties for the ad- ministration of William Nail's estate. There was a mis- joinder of parties defendant. The misjoinder of parties as defendants can only be taken advantage of by those who should not have been made parties. Story's Eq. Plead., sec. 544; Horton v. Sledge, 29 Ala. 478. The effect of the objection, when sustained, is the dismissal of the bill as to them. The bill is not multifarious for containing two distinct sub- ject matters. To constitute multifariousness in this re- spect, both subjects must be capable of redress by a court of equity. Story's Eq. Plead., sec. 283. There is simply no case against the sureties for the administration of the estate of William Nail. The answers of the sureties for the administration of Marlin Nail's estate developed, that after the death of their principal, the administration was committed to Thomas Armstrong, and that Thomas Gray became the administrator of Floyd Nail, and settled his administra- tion of Marlin Nail's estate in the probate court, where a decree was rendered against him which he paid to the said Armstrong. These facts were shown by a transcript of the record, and the receipt of Armstrong, appended to the answers as exhibits. After the court had sustained the demurrers to the original bill, the complainants amended it by striking out the sureties of the administrators of William Nail as defendants ; making Gray and Armstrong defendants in their official capacities, and appending an exhibit of the facts above stated, except the receipt of Armstrong to Gray, and by praying for a settlement of Marlin Nail's estate. The sureties of Floyd Nail assigned like grounds of demurrer to the amended bill, which the court sus- tained. The objection of misjoinder of parties defend- ant was well taken, because, now, the bill averred that Gray, having received all the assets with which his intes- 112 LAW V. WARE tate was chargeable, had settled Floyd Nail's adminis- tration of Marlin Nail's estate in the probate court, and had become personally responsible for the amount of the decree rendered against him, without an averment that he was insolvent, or that there was an error in the settlement, or of any cause why the complainants still had recourse against the sureties of Floyd Nail. The bill was now divested of all its original defend- ants, and had become a new suit against new parties. It could not be maintained as such. Amendments to a bill must be consistent with the original. 1 Dan. Ch. Plead & Prac, m. p. 454, note 2; Lyon v. Talhnadge, 1 Johns. Ch. Rep. 184. The decree is affirmed. 35. LAW V.WARE 238 III. 360 Chief Justice Caetwkight : Robert H. Law, appellee, filed his bill in equity in the superior court of Cook county against Ehsha C. Ware, appellant, for an ac- counting of the profits of a purchase and sale by said parties of a tract of land and to compel appellant to pay over a balance claimed to be due, and also to compel appellant to account for and pay over commissions re- ceived, while acting as agent for appellee, from the other party to an exchange of real estate. The superior court approved the report of a special commissioner and en- tered a money decree against appellant for $5,112.48, with interest from the date of the commissioner's report. Appellant removed the cause by appeal to the appellate court for the First District, and the branch of that court reversed the decree and remanded the cause to the superior court, with directions to enter a decree in favor of appellee for $3,112.48, with interest from the date of DEMUREEES 113 the commissioner's report to the date of such decree. A further appeal was prosecuted to this court. It is first contended that the superior court erred in granting any rehef, for the reason that the complainant had a complete remedy at law. The defendant did not demur to the bill, but at the conclusion of his answer prayed the same right and advantage of the answer as if he had especially pleaded or demurred to the bill. If the subject matter of a bill of complaint is wholly for- eign to the jurisdiction of a court of chancery, such as a claim of damages for slander, assault and battery or per- sonal injury the court is incompetent to grant the relief sought for, and it will be denied although the defendant has submitted himself to the jurisdiction of the court ; but if the subject matter belongs to that class of which a court will take jurisdiction when the facts create some equita- ble right or the relation of the parties renders the eser- cise of such jurisdiction proper, an objection that there is an adequate remedy at law should be taken at the earli- est opportunity. (Stout v. Cook, 41 111. 447.) The ob- jection is properly taken by demurrer, and if so taken the demurrer may be general for want of equity. All mat- ters which go to the jurisdiction of the court may be taken advantage of by demurrer, whether especially pointed out in the demurrer or not, and the objection may be called to the attention of the court on the argument of the demurrer. (Winkler v. Winkler, 40 111. 179; WangeUn v. Goe, 50 id. 459; Gage v. Abbott, 99 id. 366; Gage V. Grifl&n, 103 id. 41 ; Wetherell v. Eberle, 123 id. 666.) If the objection is not made by demurrer the de- fendant may still insist in his answer that the case made by the bill is not brought within the class of cases in which courts of equity assume jurisdiction for the reason that the complainant has an adequate remedy at law; (1 Ency. of PI. & Pr. 883) ; but if the court is able to grant the relief asked for and defendant submits himself to the jurisdiction of the court without specifically point- E. P. C. — 8 114 DILLON V. BARNARD ing out tlie objection in the answer it will be regarded as waived. An objection that the court ought not to as- sume jurisdiction because there is an adequate remedy at law comes too late after filing an answer in which the objection is not affirmatively set out and relied on. (Nelson v. First Nat. Bank of Chicago, 48 111. 36; Eyan V. Duncan, 88 id. 144; Chicago Public Stock Exchange v. McClaughry, 148 id. 372; Kaufman v. Weiner, 169 id. 596 ; Black v. Miller, 173 id. 489.) Although defendant in his answer claimed the same right and advantage as if he had especially demurred to the bill, he did not point out or rely upon the objection now made, and the court being competent to grant the rehef asked for, the ob- jection comes too late and will not be considered. (Note: Part of opinion not in point, omitted.) 36. DILLON V. BAENAED 88 U. 8. (21 Wall.) 430. Justice Field: The plaintiff has brought the pres- ent suit against the new trustees under the mortgage, and the assignee in bankruptcy, to charge the property held by them with the amount of his demand remaining unpaid for work done under his contract with the com- pany. In support of his pretension he insists that un- der the indenture his contract, when it obtained the as- sent of two of the trustees, became a charge upon the moneys received by the corporation from the sale of the bonds ; that the trustees under the mortgage and the cor- poration thereupon became trustees for his benefit of the proceeds thus received, and were bound to apply them to pay his debt; that by their failure to have the proceeds thus applied, and by expending them in acquiring new property and improving that already possessed, the charge upon the proceeds became attached to the prop- DEMUERERS 115 erty in the hands of the trustees thus added to and im- proved; and that this charge is entitled to preference over the lien of the bondholders. The positions thus asserted must find their support, if at all, in the provisions of the indenture of mortgage. If not sustained there they are not sustained anywhere. The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instrument, and the obhgations they im- posed upon the corporation and the trustees, and the rights they conferred upon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal inference, conclusions of law upon the construction of the indenture, and are open to con- tention, a copy of the instrument itself being annexed to the bill, and, therefore, before the court for inspec- tion. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument how- ever clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms ; nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposi- tion of the demurrer. This is not the case of a bill to set aside or reform the contract as not expressing the actual intention of the parties. It is a case where the conten- tion arises solely upon the meaning of the indenture in its bearing upon the contract, and that must be ascertained by applying to its language the ordinary rules of inter- pretation. (Lea V. Eobeson, 12 Gray 280.) Looking, then, at the indenture, we find that the only 116 DILLON V. BARNARD clause upon wMch the plaintiff relies to sustain Ms po- sitions is the one providing that the expenditure of all sums of money received from the sale of the bonds shall be made with the approval of at least one of the trustees, and that his assent shall be necessary to all con- tracts made by the corporation "before the same shall be a charge upon any of the sums ' ' thus received. It is contended that the term charge, as here used, is synony- mous with the term lien, and that the whole clause im- plies that when a contract has thus received the written assent of one of the trustees, it shall be, to the extent of the obligation created, a specific lien upon the moneys obtained. But this meaning of the term is not in har- mony with its immediate context, or the object of the in- denture. The instrument was executed to secure the pay- ment of the mortgage bonds; it so declares on its face. It nowhere indicates any design to secure the contract- ors; its language is, "that for the better securing and more sure payment of the sums of money mentioned in the said mortgage bonds, and each of them," the inden- ture is executed. And the clause in question was in- tended to increase this security by preventing a waste- ful expenditure of the funds of the corporation; it is, in fact, an agreement on its part that the funds received from the bonds shall only be used with the approval of one of the trustees, and without his written assent no contracts shall be payable out of those funds. The term charge is not used in any technical sense, as importing a lien upon the funds, but in the general acceptation of a claim that may be payable out of them. The contract- ors are not parties to the indenture, and are not entitled to claim as against those parties any benefit under its provisions, except that upon the assent being given to their contracts the use of the moneys for their payment is permissible. They are, so far as the agreement is con- cerned, strangers to the instrument. The written assent DEMURRERS 117 to contracts on the part of one of the trustees, was not required for their protection, but as an additional safe- guard to the bondholders against an improvident use of the fimds by the corporation. The clause is one of a series of covenants on the part of the corporation with the trustees, intended to secure the application of the funds received to the purposes contemplated at the time the indenture was executed, — the retirement of the exist- ing indebtedness of the corporation, the completion of its road, and the laying of a third rail. And full effect is given to the language of the clause in question by this interpretation. The present case, notwithstanding the largeness of the plaintiff's demand, is not different in its essential fea- tures from those cases of daily occurrence, where the expectation of a contractor, that funds of his employer derived from specific sources will be devoted to the pay- ment of his services or materials, is disappointed. Such expectation, however reasonable, founded even upon the express promise of the employer that the funds shall be thus devoted, of itself avails nothing in favor of the contractor. Before there can arise any lien on the funds of the employer, there must be, in addition to such ex- press promise, upon which the contractor relies, some act of appropriation on the part of the employer depriving himself of the control of the funds, and conferring upon the contractor the right to have them applied to his pay- ment when the services are rendered or the materials are furnished. There must be a relinquishment by the employer of the right of dominion over the funds, so that without his aid or consent the contractor can enforce their application to his payment when his contract is completed. Eogers v. Hosack, 18 Wendell 319; Dick- enson V. Phillips, 1 Barbour 454; Hoyt v. Story, 3 id. 262; Hall v. Jackson, 20 Pickering 197; Christmas v. Griswold, 8 Ohio N. S. 558; Christmas v. Russell, 14 118 DILLON V. BARNARD Wallace 70; Malcolm v. Scott, 3 Hare 46. In the case at bar there is no circumstance impairing the do- minion of the corporation over the funds received from the bonds; there is only its covenant with the trustees that the expenditure of those funds shall be made with the approval of one of them, and that one of them shall give his written assent to its contracts be- fore they are paid out of such funds. There is no cove- nant with the contractor of any kind in the instrument, and no right is conferred upon him to interfere in any disposition which the corporation may see fit to make of its moneys. The essential elements are wanting in the transaction between him and the corporation to give him any lien upon its funds. No right, therefore, exists in him to pursue such funds into other property upon which they have been expended. The case, as already intimated, is on his part one of simple disappointed ex- pectation, against which misfortune equity furnishes no relief. The plaintiff made his contract with knowledge of the existing mortgage and of the declaration which it con- tains, that it is to be the "first and only lien on the prop- erty and franchises of the company," and that it cov- ered not only property then held by the company, but would also cover all property which might thereafter be acquired. If he had reason to doubt the future solvency of the corporation, or that it would apply the funds it obtained from its bonds to the payment of his work, he should have provided against such a contingency in ad- vance. He cannot now be heard to complain that his expectation of receiving for his work funds not specific- ally appropriated for his benefit has failed, and to insist that, therefore, he ought to be allowed to follow those funds into property upon which other parties should have by the terms of a previous contract the first and only lien. Decree affirmed. DEMUHRBRS 119 37. DAY V. COLE 56 Mich. 295 CooLEY, C. J. : This case comes before tlie court on demurrer to a supplemental bill of complaint. Tlie cir- cuit court overruled the demurrer, and the parties demur- ring appealed. The original bill was filed September 12, 1881, against a large number of defendants, the leading purpose being to obtain payment of the purchase moneys on a certain contract for the sale and conveyance of lands, made between the Blendon Lumber Company, as vendor, and the defendant Edward Cole, as vendee, and bearing date September 1, 1866. The case on its facts was exceedingly complicated. There were two collateral contracts as- signed as security for the principal contract. The mem- bers of the lumber company, which was a partnership, were all dead, and there had been transfers of interests by personal representatives and heirs. On the hearing on the original bill, the court was satisfied that all parties in interest were not before the court, and had directed the case to stand over for the bringing in of other de- fendants. This was done by the supplemental bill, and several of the parties brought in demurred for want of equity. 1. One ground assigned for demurrer in the brief for defendants is that the bill prays for a forfeiture, which equity will not grant. Crane v. Dwyer, 9 Mich. 350; Wing V. Eailey, 14 Mich. 83. But this is not the correct view to take of the bill. It is in the nature of a bill of foreclosure, and when the rights under the contract are determined, the court will have full power to provide for the protection of all equities, and to order a sale for the satisfaction of moneys due, if necessary. Fitzhugh v. Maxwell, 34 Mich. 138. 2. Another ground of objection to the bill is that it 120 BAT V. COLE appears thereby that complainant is not owner of the title to all the lands contracted to be sold, but a part of them are owned by the defendant Jordan, who should have been joined as complainant. But if this objection is well grounded in fact, it is not good in law as a ground for general demurrer. If all the parties in interest are before the court it is sufficient ; and they are before the court, either as complainants or defendants, if the allega- tions of the bill are true, as the demurrer admits them to be. 3. The claim upon the contract is said to have become, by the great lapse of time, a stale claim ; but the remedy upon it does not appear, in view of the recitals in the bill of the dealings of the parties, to have become barred by the statute of limitations or any rule applied by analogy. Besides, complainant, by his bill, claims to rep- resent the title ; and lapse of time would seem to tell rather against the purchaser, who has failed to demand and obtain a conveyance, than against the seller. 4. Complainant claims his rights under the contract through an assignment by executors, whose authority was derived through a will made and probated in another state; and the assignment is said to be ineffectual, not only because made by foreign executors, but also because it is not shown by the bill that the condition of the estate was such as to give the executors power to sell to the exclusion of the heirs. The first ground is without merit, because it appears that letters based upon the foreign probate were issued in this state; and the second, if of any force, might perhaps be ground for special demurrer, but not for general demurrer for want of equity. Mere technical defects in the statement of the case, which might be cured by amendment if specifically pointed out, will be overlooked on general demurrer, and the court will examine the bill only so far as to see that the sub- stance of a good case is set out, even though it be inarti- ficially, or with technical faults and deficiencies. Clark DEMUREERS 121 V. Davis, Har. Ch. 227; Farwell v. Johnston, 34 Mich. 342. The general demurrer challenges the equities, and not faults of pleading merely. The order overruling the demurrer is affirmed, and the record remanded, with leave to answer under the rules. Campbell and Sherwood, JJ. concurred. Champhn, J. did not sit in this case. 38. HAETZELL v. BEASH ET AL. 55 Sou. Rep. (Fla.) 401 Paekhill, J. : The appellant filed a bill of complaint, as amended, in the circuit court in and for Hillsborough county, against the appellees, praying that accounting may be had between the complainant and defendants as to the amounts advanced by each of them, and that the assets of the business may be used to pay the indebted- ness of the same, and the moneys advanced by complain- ant on accoijnt of the same, and that a receiver may be appointed to take charge of the assets of the business, collect the outstanding accounts, convert the assets into cash, and hold the same pending the further order of the court, and that the defendants be restrained from receiving the mail or indorsing or converting into money any checks, drafts, etc., until further order of the court. The chancellor granted a temporary order restraining the defendants, or either of them, from collecting its debts, or indorsing its checks, or disposing of its assets; and sustained a demurrer to the bill. Upon motion of de- fendants, the bill of complaint was dismissed, and the temporary restraining order was dissolved, and from this order and decree the complainants appealed. The assignments allege error in the sustaining of the demurrer to the bill of complaint, granting the motion 122 COCHRANE V. ADAMS to dissolve tlie injunction, and the holding there was no equity in the bill. (1) A general demurrer to the bill, as for want of equity, will be overruled, if there is any ground of equit- able relief stated in the bill, even if there are any number of grounds of special demurrer. Thompson v. Maxwell, 16 Fla. 773 ; Herrin v. Brown, 44 Fla. 782 ; 33 South. 522 ; 103 Am. St. Eep. 182. (2) The practice of moving to dismiss bills for want of equity does not obtain in this state. Hull v. Burr et al, 55 South. 852, decided at this term. "We think the bill contained equity. The relation of the complainant to the defendants was not that of a creditor, as is contended, but of partnership. The con- tract between the parties provided: "The purpose of this agreement is for a mutual profit of the enterprise, that a strict account shall be kept by the party of the second part of the entire full amount required in manu- facturing the goods, and after the goods are sold and collection of said sales is made the profit be divided in equal amounts between both the party of the first part and party of the second part. ' ' The decree and order appealed from are reversed. 39. COCHRANE v. ADAMS 50 Mich. 17 Campbell, J. : This case was heard below, in the cir- cuit court for the county of Midland in chancery, on a general demurrer for want of equity and the bill was dis- missed. As on such a demurrer the only question is whether there is any equity whatever in the bill, we must limit ourselves to that inquiry, without speculating on the general merits or facts not actually before us. The bill sets up — first, an agreement with complain- DEMUEREKS 123 ant, made in August, 1871, whereby it was in substance provided that the firm of Brooks & Adams of Detroit, consisting of Nathaniel W. Brooks and defendant Adams, wonld advance money enough to pay for a section of land described and for lumbering it, or so much as the parties should consider proper and advisable to lumber during the winter of 1871-2. Complainant was to allow interest on the advances and Brooks & Adams were to have a lien for these nntil paid, and to have half the logs and half the profits after all such indebtedness was paid, and to have a preemptive right to take complainant's logs at market price whenever he wished to sell his interest. The title to land and timber was to be taken in the name of Brooks & Adams; complainant's services in looking after the lumbering were to be gratuitous. It then sets out the steps taken and moneys paid or contracted for the land. It also shows that being unable to find any other competent person to do the lumbering, it was agreed that complainant should cut and deliver the lumber in the boom limits of the Tittabawassee Boom Company at $4 a thousand, and that this was done in 1871, 1872 and 1873, to the amount of 6 millions, some being cut on the section referred to and some on other lands under the same terms and agreement. These other lands and the time of purchase are set forth. In September, 1872, and subsequent to these purchases. Brooks died, and defendant Caroline Brooks was his sole legatee, and the business was continued by complainant as before, she taking her husband's place in the busi- ness, and money was advanced and services rendered in the same manner as during Brooks ' life. In January, 1873, Adams sold out to Mrs. Brooks, and complainant continued the work until the spring of 1873, when he had delivered six millions of logs as before men- tioned. In the fall of 1874, complainant having his camps, roads and other preparations made and a considerable amount 124 COCHEANE V. ADAMS of logs remaining uncut, Mrs. Brooks, by Hotchkiss, her agent, refused to permit Mm to do any more lumbering. HotehHss and Mrs. Brooks made a partnership arrange- ment together and lumbered the lands, and then sold them to one McKeary in 1877. The bill also sets out in considerable fullness of detail the pecuniary items of advances and values of logs, but not in all cases the particular defendants who made the payments and advances, which he cannot state definitely. He also charges that logs were taken Avithout his consent and sawed up by defendants. This averment covers all of the defendants. He asks for an accounting and pay- ment of balances. The defense as made on the argument is that the remedy is at law for the amounts averred, and that the case was not one of partnership. It is certainly consistent with the bill that there was no partnership in the strict sense of the term. But it is equally certain that if the bill is true. Brooks & Adams became trustees for complainant of land and timber, and that Mrs. Brooks and Hotchkiss succeeded them in some portion of that trust. Whatever may be the facts the bill does not show any such full or final accounting as would terminate the relations of the parties and leave him only a remedy for the balance ascertained. Under the theory of the bill some trust property has been dis- posed of contrary to complainant's rights. The right to an accounting in equity is incident to most trust relations, and is not cut off by a waiver of an answer under oath. Unless it is clear that complainant is already fully informed, he has a right to the informa- tion and the accounting. The bill, while it does contain somewhat full averments of particular items of money, does not show all that complainant claims, as thus ascer- tained, and does not show the responsibility of the sev- eral defendants — as distinct, one from the other for these several claims. As the case stands the defendants DEMURRERS 125 have all been more or less connected directly or by succes- sion with, the trusts, and it cannot be determined, there- fore, of necessity, that there has been any discharge by lapse of time. We do not propose at this stage of the cause to discriminate between the various classes or items of claims, because the only question before us is whether the bill contains any equities whatever. We think it does make out a sufficient case to call for an answer and to admit proofs, and that it does not appear on the face of the bill that complainant should be confined to a remedy at law. The decree must be reversed with costs, and defend- ants must answer. The other justices concurred. XI FLEAS 40. RADFORD v. FOLSOM 14 Fed. Rep. 97 Shieas, D. J.: The doctrine is now well settled that an action pending in a foreign jurisdiction cannot be pleaded in abatement of an action commenced in a do- mestic forum, even if there be identity of parties, of subject-matter, and of relief sought. Smith v. Lathrop, 44 Pa. St. 326; Bowne v. Joy, 9 Johns. 221; Allen v. Watt, 69 111. 655; Insurance Co. v. Brune's Assignee, 96 U. S. 588; Stanton v. Embrey, 93 U. S. 548. It is equally well settled that at law the pendency of a former action between the same parties, for the same cause and relief, in a court of the state in which the second action has been brought, will be cause of abatement if pleaded in the second action. Insurance Co. v. Brune's Assignee, 96 U. S. 588. In equity, the general rule is the same. Story's Eq. PL, sees. 736-741. In Insurance Co. v. Brune's Assignee, 96 U. S. 588, it is held that "the rule in equity is analogous to the rule at law," and the statements of Lord Hardwicke in Foster v. Vassall, 3 Atk. 587, is quoted approvingly, to-wit, that "the general rule of courts of equity with regard to pleas is the same as in courts of law, but exercised with a more hberal discre- tion." The case of Insurance Co. v. Brune's Assignee further states the rule to be that "a bill in equity pending in a foreign jurisdiction has no effect upon an action at law for the same cause in a domestic forum, even when pleaded in abatement;" and further, "it has no effect 126 PLEAS 127 when pleaded to anotlier bill in equity;" that is to say, a bill pending in a foreign forum will not, if pleaded, abate a bill pending in a domestic forum. The reasons usually assigned in support of this doc- trine are that the court of the one state or county cannot judicially know whether the rights of the plaintiff are fuUy recognized or protected in such foreign state or county, nor whether the plaintiff can enforce to full sat- isfaction any judgment he may obtain in the foreign tri- bunal; and further, that a court will not compel a plain- tiff to seek his remedy in a foreign forum; or, as it is said by the supreme court of Connecticut in Hatch v. Spofford, 22 Conn. 485 : "That country is undutiful and unfaithful to its citizens which sends them out of its jurisdiction to seek justice elsewhere." None of these cases, however, meet the exact point presented by the plea interposed in the case now under consideration ; for in all of them it will be found that the proceedings were pending in the courts of different states or circuits, whereas in this case the two proceedings are pending within the same state, but the one in the state and the other in the federal court. We do not find that this ques- tion has ever been finally settled by the supreme court of the United States, nor by the circuit court for this cir- cuit. In the case of Brooks v. Mills Co., 4 Dill. 524, is found a full and able discussion of the question in the opinion of Judge Love, both upon principle and authority, with a review of the decision of Mr. Justice Clifford in Lor- ing v. Marsh, 2 Chff. 322 ; and the evils resulting from permitting parties to litigate the same subject-matter in two courts exercising judicial power within the same ter- ritorial limits, are very clearly and forcibly shown ; and the conclusion is reached that "it would seem most rational and just that a plea in abatement should be al- lowed in order to avert consequences so mischievous." The judgment of the court, however, in that cause was 128 EADPOBD V. POLSOM placed upon another ground; the plea in abatement be- ing overruled for the reason that it appeared upon the face of the plea that the parties to the suit in the state court were not the same as the parties to the bill in the United States court, and the question now before the court, though discussed, was not authoritatively deter- mined. To the report of this cause in 4 Dill, is attached a full note by the learned reporter, citing the leading cases on the general question; and it is therein stated that "it is clear that the foregoing cases do not go to the length of holding that the pendency of a prior suit in a state court is not a valid plea in abatement to a suit for the same cause, and between the same parties to an ac- tion, in a United States court sitting in the same state ; ' ' and the reporter further states that Mr. Justice Miller, in a case in the Minnesota circuit, "intimated his in- clination to the opinion that where the parties are iden- tical, and the scope of the subject-matter equally so, the pendency of a prior suit in the state court, within the territorial limits of the district where the second suit is brought in the federal court, may be properly pleaded in abatement, or, at all events, will operate to suspend the action in the latter;" but, as we understand the state- ment of the reporter, this was not decided or ruled in the cause, so that, as already stated, the question remains an open one. As authorities bearing upon the question more or less directly, see Earl v. Raymond, 4 McLean 233 ; U. S. V. Dewey, 6 Bliss. 502 ; Lawrence v. Reming- ton, id. 44; Smith v. Atlantic F. Ins. Co., 22 N. H. 21. In this condition of the authorities, what is the con- clusion that should be reached from a consideration of the reasons upon which is based the doctrine that under certain circumstances the pendency of a prior action may be pleaded in abatement of an action commenced in the courts of the same state? The reason for the rule that the pendency of a former action may be pleaded in abate- ment of a second action, is, that if the complaining party PLEAS 129 has already an action pending in wMch he can obtain full relief, there is no justification for harassing the de- fendant by a second action for the same subject-matter. If it should appear, however, that in the second action the plaintiff can avail himself of some legal or equitable advantage, not open to him in the first action, then a legal reason is shown for the bringing of the second ac- tion, and the pendency of the one would not ordinarily abate the other. This is the reason why, as a rule, the pendency of an action at law cannot be successfully pleaded in abatement of a suit in equity. As is said in Story, Eq. PL, sec. 742 : "It can scarcely ever occur that the remedial justice and the grounds of relief are precisely the same in each court, for if the remedy be complete at law, that is an objection to the jurisdiction of a court of equity." In the well-considered opinion of the supreme court of Connecticut in Hatch v. Spofford, supra, it is stated in substance, that while the pendency of a prior suit of the same character, between the same parties, brought to ob- tain the same end, is at the common law good because of abatement, yet the rule is not one of unbending rigor nor of universal appKcation, nor a principle of absolute law, but rather a rule of justice and equity, and that a second suit is not, as a matter of course, to be abated as vexa- tious, but all the attending circumstances are to be care- fully considered, and the true inquiry is, what is the aim and purpose of the plaintiff in the institution of the sec- ond action, — ^is it fair and just, or is it oppressive? If it appears that the former proceeding, whether at law or in equity, is pending in a foreign state or country, and in this respect the states of the Union are foreign to each other, this fact in itself determines the question ad- versely to the plea in abatement. If it appears that the two actions are pending within the same state, and are both at law or both in equity, and are identical in parties, subject-matter and relief sought, E. P. C. — 9 130 eadfokd v. folsom then no necessity appears for the institution of the sec- ond proceeding, in which event it would clearly be op- pressive upon the defendant, subjecting hina to unneces- sary costs, and in such case the pendency of the first should abate the second proceeding. On the other hand, if the two proceedings are pending in the same state, between the same parties, and concern- ing the same subject-matter, yet the relief sought is dif- ferent, as in cases of an action at law and suit in equity, when the pendency of the one should not ordinarily operate to abate the other; for the difference in the re- hef obtainable in the two jurisdictions constitutes a sufficient legal reason for the maintenance of both pro- ceedings. But it is urged that while the second of the rules as above given may be applicable to cases pending in courts of the same state, yet it is inapplicable when one case is pending in the state and the other in the federal courts for the same state, the argument being that the two jurisdictions are foreign to each other, and hence that the pendency of a suit in the one court cannot be pleaded in abatement of a suit in the other. It is true that the state and federal tribunals owe their origin to different sources, but when created and brought into action within the same territorial limits, can it be fairly said that there are two states or jurisdictions co-existing within the same limits, and yet foreign to each other, in the sense that Iowa is foreign to New York! The same statutory and common law is enforced by both tribunals, and it cannot be said that if a party is relegated to the state court for the enforcement of his rights, that he is thereby sent into a foreign state or country, whose laws and modes of proceeding are unknown or unfamiliar. As we have already shown, the main purpose of the rule allowing the pendency of one action to be pleaded, under given circumstances, in abatement of a second, is to prevent a defendant from being unnecessarily harassed, PLEAS 131 and subjected to additional costs by two proceedings when one will fully protect all the rights of the plaintiff. Now, it is apparent that the cost and vexation caused to the defendant by the institution of the second suit is, to say the least, not lessened by the fact that it is brought in the federal while the first is pending in the state tribunal. The evil to be remedied is not obviated by the fact that the two proceedings are pending in tribunals owing their origin, the one to the state, the other to the federal gov- ernment, yet acting within the same territorial limits. If it appears that the two proceedings, being between the same parties, and for the enforcement or protection of the same rights, will result in the granting of the same remedy, operative within the same territorial limits, then it would seem clear that the second is not needed to pro- tect or enforce the plaintiff's rights, and as the defend- ant must of necessity be put to additional trouble and expense in defending the second action, it follows that he is thereby vexatiously harassed, and in such case he should be enabled to protect himself by causing the abatement of the second action. It is the duty alike of the state and the United States court to protect a de- fendant from unnecessary and vexatious htigation. If the first action is brought in the state and the second in the federal tribunal, or vice versa, it is the bringing of the second action that constitutes the oppressive and un- necessary act on part of plaintiff, and the corrective should be applied in the court whose jurisdiction is in- voked oppressively and wrongfully. Again, the fact that the one action is pending in the state and the second in the federal court, instead of being a reason why the second should not be abated, is, on the contrary, a weighty argument for just the opposite conclusion; for if the two proceedings are allowed to proceed at the same time, there may arise all the difficulties from a conflict be- tween the two jurisdictions, acting within the same state, 132 FAELEY V. KITTSON which are so fully presented in the opinion in the case of Brooks V. Mills Co., already cited. Applying these principles to the case before the court, it follows that the demurrer to the plea must be over- ruled, for the demurrer admits the allegation of the plea that the former suit pending in the state court is for the same subject-matter, and to the same effect, and for the like relief and purpose, that is contemplated in the sec- ond proceeding ; and if that be true, then in the absence of any showing justifying the institution of the second suit, as being needed for the full protection of complain- ant's rights, it would necessarily follow that the second suit was uncalled for, and therefore vexatious. In the argument of the demurrer, it was urged that the second suit was necessary for the enforcement of plaintiff's rights, for the reason that the supreme court of the state had decided in the first proceeding that the suit was prematurely brought, and hence should be dis- missed. The effect of such fact cannot be considered on the demurrer, as it is not presented by the record, and the complainant, if he desires to urge the same as a rea- son justifying the bringing of the second suit, must bring the same to the knowledge of the court in the further progress of the cause. 41. FAELEY v. KITTSON 120 U. 8. 303 Justice Geay : A brief abstract of the pleadings will help to make clear what is presented for decision upon this record. The suit was brought by Farley to enforce an agree- ment by which he and the defendants Kittson and Hill agreed to purchase, for their joint and equal benefit, the bonds, secured by mortgages, of two railroads, of one of PLEAS 133 which he was receiver, by appointment of the court, and of the other of which he was the general manager, by ap- pointment of the trustees named in the mortgages. The bill alleged the making of the agreement ; that its object Avas, by means of the bonds so purchased, to pur- chase the railroads at sales under decrees of foreclosure in suits then pending; that it was agreed that Kittson and Hill should conduct the negotiations for procuring the necessary funds and purchasing the bonds, and the plaintiff should furnish such facts, information and ad- vice, and render such assistance, from time to time, as should be required of him ; that the plaintiff had knowl- edge, not possessed by the other parties, as to who held the bonds and at what rate, and how they could be pro- cured, and as to the nature and value of the railroads, and as to the pending suits for foreclosure, and his serv- ices and cooperation were indispensable to the success of the enterprise; that he performed the agreement on his part; that Kattson and Hill obtained the requisite funds from other persons, and purchased the bonds from the bondholders through on Kennedy, the authorized agent of the latter, and afterwards purchased the rail- roads at sales under decrees of foreclosure; that pend- ing the negotiations for the purchase of the bonds, the plaintiff informed Kennedy of his interest, and his con- nection with Kittson and Hill, in the project to purchase them; that the plaintiff at all times, to the best of his knowledge and ability, gave full and true answers and in- formation to all inquiries made by Kennedy, or by any of the trustees or bondholders, or by any person interested in the property under his charge as receiver and as man- ager, and kept Kennedy fully informed of all matters coming to his knowledge affecting the property, and in all things acted honestly and in good faith towards all persons interested in it; that Kittson and Hill had or- ganized a new corporation, which was joined as a de- fendant; and that the defendants had thereby obtained 134 FARLEY V. KITTSON a great amount of property and of profits, and had re- fused to account to the plaintiff for his share. The bill for a discovery, an account, and other relief. The individual defendants filed a plea, which, on the motion of the defendant corporation, was ordered to stand as its plea also, consisting of three parts : First. A restatement in detail of some of the facts al- leged generally in the bill. Second. Averments that the plaintiff never informed Kennedy or any of the bondholders of his interest in the project for purchasing the bonds and thereby acquiring the mortgaged property, as alleged in the bill; and that neither Kennedy nor the bondholders knew, suspected, or had any information or belief, that the plaintiff had or claimed to have any interest in the project, until after the foreclosure sales. Third. Averments that the making by the plaintiff of the agreement sued on, and his engaging in the enter- prise of purchasing the bonds and thereby acquiring the railroads, were as to that railroad of which he was re- ceiver, unlawful, a breach of his trust as such receiver, and a fraud upon the bondholders and the court; and, as to the railroad of which he was general manager for the trustees under the mortgages, a breach of trust to- wards the trustees and the bondholders, and a fraud upon them ; and that by reason of the fiduciary positions so occupi^ed by him the plaintiff was not entitled to the aid of a court of equity to enforce the agreement or any rights growing out of it. To this plea the plaintiff filed a general replication, and the hearing in the circuit court was upon the issue thus joined. The pleader and the court below appear to have pro- ceeded upon the theory that by a plea in equity a defend- ant may aver certain facts in addition to or contradic- tion of those alleged in the bill ; and also not only, if he proves his averments, avail himself of objections in mat- PLEAS 135 ter of law to the case stated in the bill, as modified by the facts proved; but even, if he fails to prove those facts, take any objection to the case stated in the bill, which would have been open to him if he had demurred gen- erally for want of equity. But the proper office of a plea is not, hke an answer, to meet all the allegations of the bill ; nor like a demur- rer, admitting those allegations, to deny the equity of the bill; but it is to present some distinct fact, which of itself creates a bar to the suit, or to the part to which the plea applies, and thus to avoid the necessity of making the discovery asked for, and the expense of going into the evidence at large. Mitford PI. (4th ed.) 14, 219, 295; Story's Eq. PI., sees. 469, 652. The plaintiff may either set down the plea for argu- ment, or file a rephcation to it. If he sets down the plea for argument, he thereby admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent his recovery. If, on the other hand, he replies to the plea, joining issue upon the facts averred in it, and so puts the defendant to the trouble and expense of proving his plea, he thereby, according to the EngHsh chancery practice, admits that if the par- ticular facts stated in the plea are true, they are suf- ficient in law to bar his recovery ; and if they are proved to be true, the bill must be dismissed, without reference to the equity arising from any other facts stated in the bill. Mitford PL 302, 303 ; Story's Eq. PI., sec. 697. That practice in this particular has been twice recognized by this court. Hughes v. Blake, 6 Wheat. 453, 472; Ehode Island V. Massachusetts, 14 Pet. 210, 257. But the case of Ehode Island v. Massachusetts arose within its origi- nal jurisdiction in equity, for outlines of the practice in which the court has always looked to the practice of the Court of Chancery in England. Eule 7 of 1791, 1 Cranch. xvii, and 1 How. xxiv; Eule 3 of 1858 and 1884, 21 How. v., and 108 U. S. 574. And the case of Hughes v. Blake, 136 PABLEY V. KITTSON wMcli began in the circuit court, was decided here in 1821, before this court, under the authority conferred upon it by Congress, had established the Eules of Practice in Equity in the courts of the United States, one of which provides that "if upon an issue the facts stated in the plea be determined for the defendant, they shall avail him as far as in law and equity they ought to avail him. ' ' Rule 19 in Equity of 1822, 7 Wheat, xix; Rule 32 in Equity of 1842, 1 How. li. The effect of this rule of court when the issue of fact joined on a plea is determined in the defendant's favor need not, however, be considered in this case, because it is quite clear that at a hearing upon plea, replication and proofs, no fact is in the issue between the parties but the truth of the matter pleaded. In a case so heard, decided by this court in 1808, Chief Justice Marshall said: "In this case the merits of the claim cannot be examined. The only questions before this court are upon the sufficiency of the plea to bar the action, and the sufficiency of the testimony to support the plea as pleaded." Stead v. Course, 4 Cranch. 403, 413. In a case before the House of Lords a year after- wards. Lord Redesdale ' ' observed, that a plea was a spe- cial answer to a bill, differing in this from an answer in the common form, as it demanded the judgment of the court, in the first instance, whether the special matter urged by it did not debar the plaintiff from his title to that answer which the bill required. If a plea were al- lowed, nothing remained in issue between the parties, so far as the plea extended, but the truth of the matter pleaded." "Upon a plea allowed, nothing is in issue be- tween the parties but the matter pleaded, and the aver- ments added to support the plea."^ "Upon argument of a plea, every fact stated in the bill, and not denied by an- swer in support of the plea, must be taken for true." Roche V. Morgell, 2 Sch. & Lef. 721, 725-727. The distinction between a demurrer and a plea dates as far back as the time of Lord Bacon, by the 58th of PLEAS 137 whose Ordinances for the Administration of Justice in Chancery, "a demurrer is properly upon matter de- fective contained in the bill itself, and no foreign matter ; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the plaintiff is outlawed or excommunicated, or there is another bill depending for the same cause, or the Kke." Orders in Chancery (Beames' ed.) 26. Lord Bedesdale, in his Treatise on Pleadings, says: "A plea must aver facts to which the plaintiff may reply, and not in the nature of a demurrer, rest on facts in the bill." Mitford PI. 297. And Mr. Jeremy, in a note to this pas- sage, commenting on the ordinance of Lord Bacon, ob- serves, "The prominent distinction between a plea and a demurrer, here noticed, is strictly true, even of that description of plea which is termed negative, for it is the affirmative of the proposition which is stated in the bill;" in other words, a plea, which avers that a certain fact is not as the bill affirms it to be, sets up matter not contained in the bill. That an objection to the equity of the plaintiff's claim, as stated in the bill, must be taken by demurrer and not by plea is so well established, that it has been constantly assumed and therefore seldom stated in judicial opinions; yet there are instances in which it has been explicitly recognized by other courts of chancery, as well as by this court. Bilhng v. Flight, 1 Madd. 230; Steff v. Andrews, 2 Madd. 6; Varick v. Dodge, 9 Paige, 149 ; Phelps v. Garrow, 3 Edw. Ch. 139 ; Rhode Island v. Massachusetts, 14 Pet. 210, 258, 262; Na- tional Bank v. Insurance Co., 104 U. S. 54, 76. It only remains to apply these elementary principles of equity pleading to the case before us. The averments in the first part of the plea, restating in detail some of the facts alleged in the bill, were ad- mitted by stipulation of counsel in writing to be true, and no controversy arose upon them. The substance of the averments in the second part of 138 FABLEY V. KITTSON the plea was that neither Kennedy, nor the bondholders whose agent and representative he was, had any notice or knowledge that the plaintiff had or claimed to have any interest in the project set forth in the bill, until after the sales of the railroads under decrees of foreclosure. The matter of fact thus averred was put in issue by the replication. The testimony of the plaintiff (in connec- tion with Kennedy's letter to him), which was uncontra- dicted, and was the only evidence upon the matter pleaded, shows that Kennedy, before the completion of the sale and purchase of the bonds, knew that the plain- tiff was to have an interest in the project, although he may not have known the extent of that interest, or that it had been already acquired. The want of any notice to Kennedy and the bondholders, averred in the plea, was thus disproved. The plea, indeed, is supported by the affidavit of one of the defendants that it is true in point of fact. But the oath of the party to its truth in point of fact is added only for the same purpose as the certificate of counsel that in their opinion it is well founded in matter of law, in order to comply with the 31st Rule in Equity, the ob- ject of which is to prevent a defendant from delaying or evading the discovery sought, without showing that the plea is worthy of the consideration of the court. Ewing V. Bright, 3 Wall. Jr. 134; Wall v. Stubbs, 2 Ves. & B. 354. An answer under oath is evidence in favor of the defendant, because made in obedience to the demand of the bill for a discovery, and therefore only so far as it is responsive to the bill. Seitz v. Mitchell, 94 U. S. 580. But a plea, which avoids the discovery prayed for, is no evidence in the defendant's favor, even when it is under oath and negatives a material averment in the bill. Heartt v. Corning, 3 Paige 566. The allegations of the bill, that the plaintiff at all times, to the best of his knowledge and ability, gave full and true answers to all inquiries made by Kennedy or PLEAS 139 any of the trustees or bondholders, or any person inter- ested in the property under his charge as receiver and as manager, and in all things acted honestly and in good faith towards all person interested in it, were not denied by the plea, and therefore, for the purposes of the hear- ing thereon, were conclusively admitted to be true. So much of the plaintiff's testimony, as tended to show that he intentionally concealed his interest from the stock- holders and from the court, was outside of the averments of the plea, and therefore irrelevant to the issue to be tried. The plaintiff having neither moved to set aside the plea as irregular for want of an answer supporting it, nor set down the case for hearing upon the bill and plea only, but having replied to the plea, and the only issue of fact thus joined having been determined by the evidence in his favor, it is unnecessary to consider whether the averments of fact in the second part of the plea ought to have been supported by an answer, or whether, if proved, they would have made out a defence to the bill. The averments in the third part of the plea, that, by reason of the plaintiff's position as receiver and general manager of the railroads, his entering into the agree- ment sued on, and engaging in the enterprise of purchas- ing the bonds and thereby acquiring the railroads, were unlawful, and did not entitle him to the aid of a court of equity to enforce the agreement of any rights growing out of it, were averments of pure matter of law, arising upon the plaintiff's ease as stated in the bill, and affect- ing the equity of the bill, and therefore a proper subject of demurrer, and not to be availed of by plea. The result is, that the principal question considered by the court below and argued at the bar is not presented in a form to be decided upon the record before us ; and that, for the reasons above stated, and as suggested in behalf of the plaintiff at the reargument, the plea was 140 WESTEEVELT ET Ali. V. UBEABY BDEEAU erroneously sustained, and must be overruled, and the defendants ordered, in accordance with the 34th Eule in Equity, to answer the bill. 42. WESTERVELT ET AL. v. LIBRARY BUREAU 118 Fed. Rep. 824 Putnam, J.: This is a bill in equity, alleging an in- fringement of letters patent for an invention. The bill being in the common form, it was, of course, subject to an answer setting up the various usual defenses to such suits. The respondent, however, pleaded priority of in- vention by the person named in the plea. A replication was duly filed and an issue of fact was tried by the court, and decided in favor of the complainants. Thereupon the defendant filed an answer, setting up numerous de- fenses. The answer was filed without leave of court first obtained therefor. Thereupon the complainants moved that it be stricken from the files. This motion was over- ruled, and an order made that the "answer be allowed to stand pursuant to equity rules 33 and 34. ' ' Of course, the order had the same effect by retroaction as though the answer had been filed by special leave. Subse- quently, the complainants, insisting that the court was not justified in its refusal to strike out the answer, failed to file any replication or to take other action, and the bill was thereupon dismissed, the dismissal being ex- pressed as pursuant to equity rule 66. The complain- ants appealed to us. According to the ordinary equity practice, after a plea to the merits is disproved on an issue of fact, the respond- ent can set up no further defense, and a decree will be made against him. Adams' Eq. (8th Ed.) 342. Of course, this does not deprive a complainant of his right to insist on an answer so far as he may desire to obtain PLEAS 141 discovery thereby. In view of the liberal rules by virtue of which equity ordinarily adjusts itself to meet unex- pected contingencies, it may well be supposed that, even under the ordinary practice, and independently of any general orders, chancery might relieve a respondent, and permit him to answer, when justice shows clearly that such leave should be granted; although we find no instance thereof. However, it is not necessary to de- termine this particular proposition, because the practice in this respect, so far as the federal courts are concerned, is governed by the rules already referred to. Eule 33 provides that if, on an issue, a plea is determined for the defendant, it shall avail him only as far as in law and equity it ought to avail him. In this case the respondent set up what was a complete bar to the bill, and what would have entitled him to a decree if the issue had been decided in his favor. Rule 34, after making provision for costs, which we need not explain, directs that, "upon the overruling of any plea or demurrer, the defendant shall be assigned to answer the bill or so much thereof as is covered by the plea or demurrer." In the strict language of equity practice, overruling a plea relates only to an overruling on the argument of a demurrer, or something else involving mere questions of law ; while, if an issue of fact is made, the plea is or- dinarily said to be sustained or disproved. Eule 34, as originally adopted in 1822, appeared as rule 20, 7 Wheat. X. Apparently, its only purpose then was to prohibit another plea, or a demurrer following a plea. It was re-enacted in 1842 (1 How. lii), and there brought into its present form. 1 Bates' Fed. Eq. Proc. 1901, p. 360, affirms that rule 33 has changed the practice of the federal courts from the old chancery practice; but this rule relates only to instances where the complainant has hazarded his case on an issue raised by a plea, and has lost. The author proceeds, at page 361, to discuss the effect of falsifying 142 WESTEEVEI/r ET AL. V. LIBEAET BtlEEAU a plea, and he gives the Enghsh chancery practice with- out any reference to rule 34. In this connection he makes no reference to the decisions of the supreme court, which we must accept as decisive of the construction of this rule. Therefore we can give no weight to his dis- cussion, so far as the question now before us is con- cerned. It is true that rule 34 uses the expression "in point of law or facts" in connection with its first sentence, rela- tive to costs ; but we find in it nothing which clearly re- quires us to hold that it authorized one issue of fact to be tried after another. It, however, is capable of a broad construction; and, although we fail to find anything in any opinion of the supreme court in explanation of its purpose, or of the amendments made in 1842, yet we are compelled to accept the action of that court in Farley v. Kittson, 120 U. S. 303, 318, 7 Sup. Ct. 534, 30 L. Ed. 684, and in Dalzell v. Manufacturing Co., 149 U. S. 315, 326, 327, 13 Sup. Ct. 886, 37 L. Bd. 749, as conclusively sus- taining the order of the circuit court now appealed against. The attempted explanations by the complainants of these decisions are in no way satisfactory; especially their suggestion that the judgments entered by the su- preme court in the cases cited were so entered because, possibly, the complainants desired discovery, so that, therefore, they were entered on their request. Neither can the complainants derive any help from Kennedy v. Creswell, 101 U. S. 641, 25 L. Ed. 1075, which they urge on us so strongly because that case originated in the courts of the District of Columbia, to which the equity rules of the supreme court do not apply. The discussion in that opinion is with reference to the ordinary equity practice, and without any allusion to rule 34. It is plain beyond argument that in the two cases above cited the supreme court, without hesitation, although, it is true PliEAS 143 without explanation, interpreted rule 34 as the circuit court interpreted it. The decree of the circuit court is affirmed, and the costs of appeal are awarded to the appellee. 43. BOLTON v. GAEDNEE 5 Paige Ch. (N. Y.) 273 The Chancelloe: Several objections are made to this plea which are merely formal ; but the principal ob- jection is that it is pleaded in bar to the discovery of what the complainant's counsel considers a material fact to destroy the defence arising out of the release and assignment of Bolton. I believe the answer is suffi- ciently full as to all the matters of the bill not professedly covered by the plea. Whether the plea does not cover the discovery of some facts as to which the complainant was entitled to an answer, I shall presently consider. The rule which requires an answer in support of a plea, in certain cases, does not render it necessary that the defendant should deny positively, in the answer, matters of which it cannot be presumed he has any personal knowledge. Where fraud or other circumstances are charged for the purpose of avoiding a release, the de- fendant pleading the release, must by proper negative averments in his plea, deny the allegation of fraud, &c., and must support his plea by a full answer and discovery as to every equitable circumstance charged in the bill to avoid the bar. (Mad. & Geld. Eep. 64; 2 Ves. & Beam. Eep. 364.) But in the case of negative averments as to matters not alleged to be the act of the defendant, or where, from the nature of the case, he cannot be sup- posed to have any personal knowledge of the subject, it is sufficient for him to deny the facts charged upon his belief only. (Drew v. Drew, 2 Ves. & Beam. 159.) The 144 BOLTON V. GARDNER defendant, however, must be careful so to frame his averments that the complainant may put the facts in is- sue by a replication. And where the negative averments in the plea are permitted to be made upon the belief of the defendant, it will be sufficient for him, in the answer in support of such plea, to deny the equitable circum- stances stated in the bill, according to his knowledge, in- formation and belief only. One objection which is urged by the complainants' counsel, to the form of the plea in this case, is that some of the averment therein professing to negative the charges in the bill, are not direct and issuable, but are involved and argumentative. I am inclined to think this objection is well taken. One of those averments commences thus: "And this defendant further avers, that for the reasons in his answer particularly set forth, he cannot say whether or not," &c., concluding with two or three involved exceptions, and embracing in a paren- thesis another distinct averment of ignorance. This mode of denying an allegation in the bill might not per- haps be deemed objectionable in an answer, where every allegation, not admitted by the defendant, is put in issue by the formal traverse at the close of the answer. But it is bad in a plea where the negative averments must tender an issue directly. Another objection to the plea is that it is overruled by a part of the answer. The defendant, by his plea, ob- jects to answering any allegations in the bill which call for a discovery as to the situation or amount of the estate of McLachlan, which has come to his hands as adminis- trator; yet he does answer in part as to those matters. He alleges, in substance, that the inventory filed by him in the office of the surrogate contains a just and true ac- count of the estate which had come to his hands, except eleven volumes of books and $132, which came to his hands afterwards. He also states that the $1,000 paid Bolton at the time of making the release, was fully equal PLEAS 145 to what he was rightfully entitled to, and was not, as al- leged in the bill, less than one-fifth of his just distrib- utive share of the estate. If it was necessary or proper to put these allegations in an answer in support of this plea, then it was improper to plead the release in bar of the discovery as to the amount of the estate. The de- fendant should have pleaded in bar of the rehef merely, and have given a full discovery as to the actual amount of the estate. If the allegation in the answer, that the amount paid to Bolton at the time of the execution of the release was not less than one-fifth of his distributive share of the estate, and that it was fully equal to what he was rightfully entitled to, was not necessary to sup- port the plea, it overrules the whole plea and constitutes a double bar. (2 Sim. & Stu. E. 281.) Taking this an- swer to be true, Bolton received from the defendant his full distributive share of the estate, and all he had any right to claim. This of itself is a full defence to the suit, and to the whole rehef asked for by the bill. Independent of these objections to the plea, in point of form I think the complainant was entitled to a full dis- covery as to the actual amount of the personal estate of McLachlan. We have before seen that the party plead- ing a release which the complainant seeks to impeach upon equitable circumstances, must, in his answer sup- porting the plea, make a full discovery as to every mate- rial circumstance rehed on to avoid the bar. One equit- able circumstance relied upon here is, that Bolton under- stood from Miller that his share of the estate was less than $1,000, whereas the complainant alleges it was more than five times that amount, and that this fact was then known to the defendant and his sohcitor. If this was so, although Miller himself was probably misinformed as to the amount, I am not prepared to say that a trustee can be permitted to support a release from his cestui que trust, founded on such a gross inadequacy of considera- tion; although there was no actual fraud intended. I E. p. C. — 10 146 LESTER V. STEVENS think, in such a case, the defendant should be required to show that the parties were treating for a settlement at arms' length, or that he gave the cestui que trust a fair statement of the amount of the property, so far as was necessary to enable him to act understandingly in rela- tion to his rights. Although the defendant denies knowl- edge of the amount of property charged in the bill, com- plainant has a right to know what the property was, and when it came to the defendant's hands, to enable the court to see whether the allegation is true. I think the vice-chancellor erred in allowing this plea ; and his decision must be reversed, with the costs of this appeal. The plea is to be overruled, but without prej- udice to the right of the defendant to insist upon the release and assignment, in his answer, as a bar to the re- lief sought by the complainant's bill. As the complainant is prosecuting her cause before the vice-chancellor in forma pauperis, the question whether she is to receive costs upon the argument of the plea before the vice-chancellor, must be reserved until the hearing; but they are not to be allowed if the defendant succeeds in his defence. This court will not encourage the prosecution of suits in forma pauperis, merely for the purpose of obtaining the costs of interlocutory pro- ceedings, if there is no reasonable hope of succeeding on the merits. As the complainant cannot prosecute an ap- peal as a poor person, and is also obliged to give security for the costs of the adverse party in such a case, it is reasonable that she should recover dives costs for the proceedings on the appeal. 44. LESTER v. STEVENS 29 III. 155 Caton, C. J. : At the time this plea to the jurisdiction of the court was filed, there were four defendants, one of PLEAS 147 whom, tlie sheriff of Ogle, had been brought in and made a party by the amended bill. The plea avers, that Wil- lard and Pearce, "the major part of said defendants," reside in Cook county. The averment that two is the major part of four, does not make it so ; nor does the set- ting of a plea for hearing, admit that which cannot be true. Now, our statute says, that the suit shall be com- menced in the county where the defendants, or a major part of them, reside ; this, if it were possible to raise the question, would put beyond the jurisdiction of any court a vast number of suits where there are several defend- ants, for it is very common that a major part of the def enuants do not reside in any one county ; and but for the rule that every plea to the jurisdiction must give a better writ, and show affirmatively that some other court can take jurisdiction, there would be a failure of justice in such cases. In order to make this plea good, we must find in it the facts which would give some other court jurisdiction. We only learn from the plea, that two of the four defendants reside in Cook county. This is not sufficient to give that court jurisdiction under the stat- ute, any more than the residence of the other two, in Ogle, would give that court jurisdiction. It gives the party no better writ, and he may stay where he is, till he is shown a better one. The next objection is, that this is a bill to restrain the collection of a judgment rendered in the circuit court of Cook county. If this were the primary object of the bill, it would undoubtedly be fatal to the jurisdiction of the court, but it is not so where the principal object of the bill is for other rehef, and the stay of the collection of the judgment is incidental or auxihary, and for the pur- pose of making the rehef complete for which the bill is filed; and for the purpose of determining these ques- tions, even on such a plea as this, we must look into the bill itself. If the plea avers that there are but three de- fendants, or that two is a major part of the defendants, 148 ilWING V. BLIGHl' which is the same thing in substance, that averment in the plea cannot avail against the fact that there is on the face of the bill manifestly four defendants ; and so when we can see that the principal objects of- the bill are other than the stay of the execution, and that that is but the incident, the averment of the plea to the contrary cannot avail. Here, the principal objects of the bill are, to be re- lieved from a mortgage or trust deed, and a sale made under it on account of usury ; and the stay of the execu- tion in the hands of one of the defendants, is introduced as incidental to that main object. Whether, in the at- tainment of that main object, the complainants can ob- tain relief from that judgment, is not before us on this plea. The bill may be obnoxious to a demurrer for mul- tifariousness, or for want of equity, or for any other cause, without affecting this question, which is one of jurisdiction only. We think the plea was insufficient to oust the court of its jurisdiction, and that it should not have been sus- tained. We have treated what the party calls a demur- rer to the plea as simply setting the plea down for hear- ing, which is the proper mode of raising the question of the sufficiency of a plea to bill in chancery, because the court below so treated it. The court would have been justified in disregarding the paper called a demurrer, as inappropriate to such a pleading. 45. EWING V. BLIGHT 3 Wallace Jr. 139 Statement of Facts : During the pendency of a plea to the jurisdiction an application was made for an in- junction and a receiver. Geibb, J. : The pendency of a plea to the jurisdiction PLEAS 149 of the court necessarily precludes all further action of the court till it is decided. This rule of practice is founded on reason as well as fortified by authority. 13 Ves. 164. While the jurisdiction of the court or the equity of the bill is in doubt by the pendency of a plea or demurrer, it would be highly improper for the court to interfere by the exercise of such high powers over men's property. The court have it always in their power to guard against the abuse of dilatory pleas. If irremediable mis- chief should impend, which it is absolutely necessary to meet with promptness, or if there be any just suspicion that the plea or demurrer is merely intended for delay, the court will order an immediate hearing or trial of the plea. If an issue be desired to try the plea of jurisdiction in this case it will be ordered, or any other rule which com- plainant may desire, for the purpose of expediting the final hearing in case the jurisdiction should be found to exist. 46. BAILEY V. WEIGHT 2 Bond 181 Opinion of the Cotjkt: The bill in this case alleges, in substance, that upon certain false and fraudulent rep- resentations by the defendants, the complainant was in- duced to make an advance to them of $20,000, to be in- vested in the purchase of cotton for the benefit of all the parties. It is averred, also, that as an inducement for making said advance, and an indemnity therefor, the de- fendant Wright represented himself as the owner of valuable real estate in Cincinnati, which he promised to mortgage to the complainant to secure him against loss for said advance in money. The bill contains direct al- legations of fraud on the part of defendants, prays for 150 BAILEY V. WRIGHT an account, and for a decree requiring the defendant Wright to execute a mortgage on the real estate in Cin- cinnati, according to his promise. The defendant Wright has filed a plea to the bill, de- nying all the allegations of fraud, and averring, as to the averment of the bill that he promised to execute a mortgage of real estate, that if any such promise was made it was verbal, and therefore void under the statute of frauds. The pending motion in the case is for an order to with- draw the plea from the files, and to require an answer to the merits. The only question intended to be presented on this motion is whether, under the allegations of the bill, the defendant Wright can rely on his averment that the promise to execute the mortgage was void under the statute of frauds, without an answer in response to the charges of fraud in obtaining the advances of money by the complainant. The defendant has an undoubted right to set up that the agreement to mortgage was by parol, and therefore void. But the law seems now to be well settled, that where facts are asserted in a bill, the effect of which may be to take a verbal agreement out of the operation of the statute of frauds, it is incumbent on the respondent to re- spond by answer to such facts. This would seem to be the fair construction of the thirty-second rule of the rules of practice in chancery, adopted by the supreme court for the guidance of the courts of the United States. And such seems to be the law applicable to the question as laid down by Judge Story. Story's Eq. Plead., 591. It is clear that a plea merely setting up the invalidity of an agreement under the statute of frauds, where other facts are averred in the bill in support of the complain- ant's equity, and which may be of a character to require a court to ignore the plea of the statute, the defendant should be required to file his answer to such facts. Such, it seems to the court, is in accordance with the spirit and PLEAS 151 design of tlie thirty-second rule before referred to. And without deeming it necessary, in deciding the present motion, to refer to the frauds alleged in the bill, and without intimating any opinion upon the question whether, if the frauds charged were proved, the legal ef- fect would be to supersede the plea of the statute of frauds, and present the entire transaction for inquiry on the broad principles of equity, an order will be entered requiring the defendants to file their answer to the bill. There can be no hardship in such an order. The defend- ants should gladly avail themselves of the opportunity of denying the frauds charged. I trust they -svill be able to acquit themselves of all imputations impugning their integrity in the transactions set out in the bill. 47. SPANGLEE v. SP ANGLER 19 III. App. 28 Wilkin, J. : At the December term, 1885, of the cir- cuit court of Jefferson county, defendant in error filed his bill for divorce against plaintiff in error. The bill alleges that both parties reside in said Jefferson county. To this bill plaintiff in error, filed a plea denying that defendant in error, was at the time of fihng his bill or since, a resident of Jefferson county, and averring that he was at that time, and still is a resident of Washington county in this State. The plea concludes by demanding the judgment of the court whether she ought to be com- pelled to make any answer to the bill, etc. To this plea the defendant in error filed a general demurrer, which was sustained. The plaintiff in error failing to answer further she was defaulted and on hearing a decree was rendered in favor of the defendant in error. The only question presented for our decision is as to whether or 152 SPANGLER V. SPANGLEB not the court erred in sustaining the demurrer to the plea. It is not proper practice to dispose of a plea in chan- cery on demurrer. Story's Equity Pleading, sec. 697; Daniel's Chancery Pleading and Practice, Vol. 1, sec. 4, p. 713 ; Cochran et al. v. McDowell, 15 111. 10 ; Dixon v. Dixon, 61 111. 324. The demurrer may, however, be treated as equivalent to setting the plea for hearing, and we shall so consider it. By sec. 5, chap. 40, E. S., it is expressly provided that divorce proceedings shall be had in the county where the complainant resides. The latter clause of sec. 2, chap. 40, of the statute of 1845, was the same. In Way v. "Way, 64 111. 410, the supreme court say: "The language is imperative, and excludes the right to commence proceeding in any other county than the one in which the residence of the complainant is fixed." If the statute could, by possibility, be construed into a different meaning, this case effectually disposes of all that is said by counsel for defendant in error as to the right of a complainant to bring a bill for divorce in any other county than that in which he resides. The al- legation in the bill that the complainant resided in Jef- ferson county was a material and necessary one, and the plaintiff in error unquestionably had the right to put it in issue. Counsel for defendant in error seem to main- tain that this can not be done by plea, and in the argu- ment confound this plea with a plea in abatement to the jurisdiction as at common law, objecting to the manner in which it concludes, and citing authorities as to the req- uisites of a plea at law. It scarcely need be suggested that pleas in equity are not to be determined by the rules of pleading at law and hence the authorities cited both as to the office and form of this plea have no application whatever. The plea in this case is not a plea to the juris- diction, but a plea in bar. The same defense set up in the plea might have been interposed by answer, as was done in Way v. Way, supra. It may with equal pro- PLEAS 153 priety be done by plea. A plea to a bill in chancery is proper whenever the defendant wishes to reduce the cause, or some part of it, to a single point, and from thence to create a bar to the suit. Smith's Chancery Practice, Vol. 1, page 216; Story's Equity Pleading, sec. 652. Pleas in chancery are pure pleas and pleas not pure. Pleas not pure are sometimes called negative pleas — Ibid., sec. 651. It was formerly doubted whether a purely negative plea was a legitimate mode of defense in equity ; but that doubt has been dissipated, and it is now firmly established that such a plea is good — Ibid., 668. In sec. 652, supra, the author says: "The true end of a plea is to save to the parties the expense of an examina- tion of witnesses at large." It would, therefore, seem to be eminently proper in this kind of proceeding, if the complainant did not reside in the county in which the bill was brought, such residence being a "prerequisite to the existence of the right to file the bill," as was said in Way V. Way, supra, to raise the question, by plea, and thus save the expense of a general hearing. We see no objection to this plea, either in form or substance, as a plea in bar to a bill in chancery. The court below erred in holding it bad, and the decree is reversed and cause remanded for that reason. 47A. HARVEY ET AL. v. MORGAN 58 Fla. 428 Whitfield, C. J. : In proceedings to remove a cloud from title to land John W. Morgan alleges "that he is in possession of and has a fee simple title to the" land; that he "deraigns his title from Edwin Forrest, who was the grantee in a deed issued by the state of Florida for said premises and resided thereon for a number of 154 HARVEY ET AL. V. MORGAN years;" that the defendants claim through a tax deed obtained as specifically stated in the bill, and "that the title and claim of the defendants to said premises is null and void and of no effect save and except to cast a cloud upon the title of" complainant, because the defendants or those through whom they claim "have never been in possession of the said premises ; and that their deeds to the said premises convey no title, because they have not brought suit to recover the possession of the land and are now barred by the statute and because the tax deed is null and void." It is also alleged that neither the defendants nor those under whom they claim "have ever entered into or taken possession of said premises," "or enclosed said premises with a substantial enclosure, nor has said premises been cultivated or improved," nor have the defendants "ever been in actual possession of the said premises, and have never brought suit for the recovery of the actual possession of the premises." Answer under oath was expressly waived. A demurrer to the bill was presented. The grounds of it argued here are that the validity of complainant's title is not shown and that the invalidity of defendant's title is not shown. The demurrer was over- ruled and the defendants separately filed two pleas, one of which avers that the defendants or those through whom they deraign title have been in continuous occupa- tion and possession of the premises claiming ownership thereof under a written instrument as a conveyance of the land for more than seven years before the filing of the bill of complaint. The second plea is of adverse pos- session under a specific tax deed. Upon overruling the pleas the defendants were allowed thirty days to file an amended plea and answer in support of the plea. The defendants jointly filed substantially the same pleas and an answer, but the answer is not signed by the defendants, the signatures being in the names of the defendants by their respective counsel. As the answer was not signed PLEAS 155 by the defendants, a decree pro confesso and final decree for the complainant were rendered. On appeal it is contended that the court erred (1) in overruling the demurrers to the bill of complaint; (2) in overruling the pleas and requiring an amended plea and an answer in support thereof; (3) in rendering the decree pro confesso and final decree. The entire arg-ument in support of the demurrer to the bill of complaint is that "the demurrers should have been sustained because the bill was vague, indefinite and because the title or interest or even the possession of the complainant is not set forth with sufficient certainty to require the defendants to plead to the bill of complaint. ' ' It is alleged that the complainant is in possession of and has a fee simple title to the land, and that the title is deraigned from a designated person who was the grantee in a deed from the state for the premises and resided thereon for a number of years. These allegations are not very full and specific, but they are not so defective as to be subject to an objection merely that they are vague and indefinite even if such an objection can be made here when not made in the court below. The alle- gations are not amenable to the bare statement in the brief as above quoted that the title or interest or posses- sion of the complainant is not sufficiently stated to re- quire a plea. No reference is made in the brief to the ground of the demurrer that the allegations of the bill of complaint do not show the invalidity of the defend- ants' title. Pleas in equity causes are required to set forth the ultimate facts offered as a bar to the suit. The aver- ments of a plea in equity must be of matters not alleged in the bill, must be direct and positive, must not state matters by way of argument, inference or conclusion, and must state all facts necessary to render the plea a com- plete equitable defense to the case made by the bill, so far as the plea extends. Where the plea does not state 156 HAEVEY ET AL. V. MORGAN a full and complete defense, or where the necessary facts are to be gathered by inference alone, the plea should be overruled upon argument. DaCosta v. Dibble, 40 Fla. 418, 24 South. Eep. 911 ; Langdell on Eq. PI., Chap. 98 et seq.; Beames' Pleas in Eq., 34 et seq., 31 Cyc. 49. If pleas do in effect meet the above requirements they should not be overruled. The first plea in this case avers that the' defendants or those through whom they claim title have been in con- tinuous occupation and possession of and claiming the ownership of the land under a written instrument as being a conveyance of the premises, for more than seven years before the filing of the bill of complaint. The second plea avers seven years continued occupation and posses- sion under claim of title exclusive of any other right founding such claim upon a certain tax deed from the state of Florida. These averments are sufficient to meet the allegations of the complainant as to the invalidity of the defendants' title, and to put in issue the question of the possession of the complainant. The rule announced in the case of Henderson v. Chaires, 35 Fla. 423, 17 South. Eep. 574, is not applicable here as the allegations of the bill do not clearly show the invahd- ity of the defendants' title, the allegations denying the possession of the defendants not being full and complete. Under the statute the defendant may have acquired title by adverse possession under color of title even if the allegations of the bill of complaint are true. See Doyle V. "Wade, 23 Fla. 90, 1 South. Eep. 516, 11 Am. St. Eep. 334; Harriv v. Butler, 52 Fla. 253, 42 South. Eep. 186; Chap. 1721 Gen. Stats, of 1906. The plea in effect pre- sents new matter as a single complete defense to the suit, and avoids the rule announced in Keen v. Brown, 46 Fla. 487, 35 South. Eep. 401, that a plea which sets forth nothing except what appears on the face of the bill is bad, and must be overruled although the objection, if raised by demurrer, wtould have been valid, as the proper tLEAS 157 office of a plea is to bring f ortli fresh matter not apparent in the bill. Fletcher's Eq. PL & Pr. 270. The ultimate facts averred in the pleas set up a single good defense that is not fully anticipated by the bill. The final decree is reversed and the cause is remanded with directions to vacate the decree pro confesso and to sustain the plea. It is so ordered. XII ANSWERS 48. EUSSELL v. STICKNEY 56 Sou. Rep. (Fla.) 692 Shacklefobd, J. : This is a suit brought by Ada Rus- sell and other named complainants, against Edward Stickney and two other named defendants for the parti- tion of certain described lands, which suit resulted in a final decree beiug rendered in favor of the defendant, Edward Stickney. From this decree the complainants and the other two defendants have entered their appeal to this court. A very succinct statement of the bill is that it alleges that on the 12th day of May, 1882, Edward Stickney, by a certain deed, duly executed and acknowledged, con- veyed an undivided one-half interest in and to certain described lands, of which partition is sought, to Silvanus Pinder, who, upon the receipt of such deed, "entered into possession of the said real estate as a tenant in common with the said Edward Stickney, and continued in the possession, as aforesaid, and while in said posses- sion, as aforesaid, the said Silvanus Pinder, on the 28th day of February, A. D. 1891, departed this life intestate," leaving as his sole heirs at law his children, who are the complainants, and another daughter, Alice Sweat, who had subsequently also departed this life intestate, leav- ing as her sole heirs at law two children, who were in- fants, and were made codefendants with Edward Stickney. After having unsuccessfully interposed a demurrer to the bill, Edward Stickney filed a sworn answer thereto, 158 ANSWERS 159 the oath to the answer not having been waived in the bill, in which he admitted the execution of the deed as alleged, but denied that Silvanus Pinder had ever entered into the possession of any part of the land, or was in possession thereof at the time of his death, or that he or his heirs had ever been in such possession. On the con- trary, the defendant positively averred that he had "been in absolute control and possession from the day he made his homestead entry up to the filing of this his answer, ' ' and that at no time did Silvanus Pinder during his lifetime, or his heirs at law subsequent to his death, ever claim any portion of the proceeds arising from the crops which the defendant had raised upon the land by his own exertions, "but, on the contrary, have at all times acquiesced in the control and management of said lands by the defendant. ' ' A replication was filed to the answer, and a special master appointed to take testimony of the respective parties. A number of objections were interposed to certain proffered testimony, all of which were presented to the chancellor at the final hearing of the cause, and expressly ruled upon by him, as is pro- vided by our rule relating thereto. See Lovett v. Arm- strong, 61 Fla. 681, 54 South. 381. At such final hearing, as we have previously said, a decree was rendered in favor of the defendant, Stickney, and the bill dismissed. In such decree the chancellor sets out certain facts which he finds "established by the undis- puted testimony." After reciting the execution of the deed by Stickney to Pinder to an undivided one-half interest in the land, on the 12th day of May, 1882, the decree proceeds as follows : "That the defendant has ever since remained in the exclusive possession of said tract of land, paying the taxes, cultivating it, and enjoying the rents, issues, and profits thereof without let or hindrance, and that no assertion of ownership or possession was made by Sil- vanus Pinder up to his death on February 28, 1891, nor 160 RUSSELL V. STICKNEY any sucli assertion made by his heirs, the complainants, np to the filing of this bill on January 3, 1910, a period of nearly 28 years after the execution of the deed to Pinder. "While in a court of law the possession of one tenant in common, in the absence of acts constituting an ouster, is the possession of his cotenant, yet courts of equity favor diligence, and are loath to enforce claims when the claimants are shown to have been guilty of laches for a long period of time. "It is considered by the court that the claim of the complainants to the land in controversy or any interest therein is stale ; therefore it is ordered and decreed that the prayer of their bill be denied, and the bill dismissed, at complainants ' cost. ' ' In view of the conclusion which we have reached, it becomes xmnecessary to discuss all the errors assigned. We are of the opinion that error was committed in over- ruling some of the objections interposed by the com- plainants to certain proffered testinaony of the defendant, Stickuey, but such erroneous rulings resulted in no in- jury to the complainants. Discarding all of the testimony so erroneously admitted, we would stiU be impelled to the same conclusion. (1-4) We have caUed attention to the fact that the answer of the defendant, Stickney, was imder oath, there- fore, in so far as it was responsive to the allegations of the bill, and direct, positive, and unequivocal in its terms, was evidence in his favor, in order to overcome which two witnesses were required, or one witness and corrob- orating circumstances. If the complaiaants had wished to avoid the probative force of a sworn answer, they could have done so by expressly waiving the oath in their bill. Kahn v. Weinlander, 39 Fla. 210, 22 South. 653, and Pioney v. Pinney, 46 Fla. 559, 35 South. 95. The answer positively denies that either the complainants or their ancestor, through whom they claim, were ever in posses- ANSWERS 161 sion of tlie land, or exercised any acts of ownership over the same, which was clearly responsive to the hill. The only evidence adduced upon this point hy the complain- ants was the production of the deed executed by such defendant to their ancestor, the execution of which the defendant had admitted in his answer. We held, in Mc- Gourin v. Town of De Funiak Springs, 51 Fla. 502, 41 South. 541, that: "Where the bill alleges that the com- plainant is seised and possessed of land, and the sworn answer, where the oath has not been waived, denies such seisin and possession, the burden is upon the complainant to prove the seisin and possession by sufficient evidence. ' ' It is true, as we held in Levy v. Cox, 22 Fla. 546, that "right of possession of land is incident to a legal title, and a person who has a legal title is presimied to be in possession," but it is also true that this legal presump- tion may be overcome by proof, just as possession of per- sonal property is prima facie evidence of ownership; but such presumption is rebuttable, and may he overcome. Adams v. Board of Trustees, I. I. Fund, 37 Fla. 266, 20 South. 266, and American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 South. 942, 16 Am. & Eng. Ann. Cas. 1054. Also see Bass v. Ramos, 58 Fla. 161, 50 South. 945, 138 Am. St. Eep. 105, as to the legal presumption from the possession of land, and that such presumption may be rebutted and overcome by proof. It is further true that "the entry and possession of one tenant in common is presumed to be for the benefit of all ; and will, in the absence of a statute to the contrary, be regarded as the possession of all the tenants, until ren- dered adverse by some act or declaration by him, repu- diating their interest in the property. ' ' 38 Cyc. 21. But, as we ourselves have held, such possession by one coten- ant is only prima facie that of the other, since there may be an ouster of one cotenant by another. Coogler v. Eogers, 25 Fla. 853, 7 South. 391. (5) It must be admitted that the points presented E. p. C— 11 162 EUSSELL V. STICKNEY upon this appeal are not free from difficulty. There is more or less conflict in the authorities as to when the laches of a cotenant will defeat a proceeding instituted by him for a partition of land. See 30 Cyc. 190, and authorities cited in notes. We would also refer espe- cially to the exhaustive note to the case of Joyce v. Dyer, beginning on page 609 of 109 Am. St. Rep. We shall not enter into a discussion of this question. The facts and circumstances of each individual case must necessarily largely determine the answer. In the peculiar facts and circumstances of this case, we encounter the principal difficulty in reaching a conclusion. It is doubtless true, as w:as held in Thomas v. Garvan, 15 N. C. 223, 25 Am. Dec. 708: "A proceeding for partition at law cannot take place, except there be a common possession, and a common possession is always implied from a common title, until the contrary be shown. But, if an actual ouster be made by one tenant in common with his co- tenant, there is no longer a common possession, and the remedy is not by petition for partition, but by ejectment to recover possession of the individual moiety. The sole enjoyment of the property by one of the tenants is not, of itself, an ouster, for his possession will be under- stood to be in conformity with right; and the possession of one tenant in common, as such, is in law the posses- sion of all the tenants in common. But the sole enjoy- ment of property for a great number of years, without claim from another, having right and under no disability to assert it, becomes evidence of a title to such sole enjoy- ment; and this, not because it clearly proves the acquisi- tion of such a right, but because, from the antiquity of the transaction, clear proof cannot well be obtained to ascertain the truth, and public policy forbids a possessor to be disturbed by stale claims, when the testimony to meet them cannot easily be had. Where the law pre- scribes no specific bar from length of time, 20 years have been regarded in this country as constituting the ANSWEES 163 period for a legal presumption of sucli facts as will sanc- tion the possession and protect the possessor." (6) In the instant case, the proofs do not show that there was ever any actual ouster by the defendant, Stick- ney, of the complaiaants or of their ancestor, but only that from the date of the deed by the defendant to Sil- vanus Pinder, on the 12th day of May, 1882, until his death on the 28th day of February, 1891, Pinder never exercised any acts of ownership over the lands, or de- manded any accounting for the rents and profits; and that neither had his heirs at law done so since his death. We cannot get our consent to hold that this showing of laches is sufficient to destroy the legal title which the complainants and the two infant defendants had to an undivided one-half interest in and to the land in question, or to bar their right to have the same partitioned. No authority directly in point is cited to us, and we have been unable to find any. We think that the decree should be reversed, and the case remanded for such further pro- ceedings as the parties may be advised, and as will be in accordance with this opinion. 49. NEWMAN v. MOODY 19 Fed. Rep. 860 Pabdeb, J. : The demurrer filed by defendant contains 23 counts, but practically makes but three points: (1) That the receiver had not been previously authorized nor instructed by the court to institute the suit; (2) that the proceedings were summary, and not by regular bill and subpoena; and (3) the remedy should have been by action at law. The amended answer states the same defense as the original, but more explicitly, and, unlike the original, is properly verified. The brief filed by defendant is de- 164 NEWHAN V. MOODY voted to sustaining tte points made by demurrer, of which it is sufficient to say that the demurrer was filed too late, being filed without leave, and after answer and submission. By answering, defendant waived all objec- tions to the form and modes of proceeding. The sole point made by counsel for the receiver is that the decree was final with the April term, 1882, and be- yond the power of the court to vacate at the subsequent term. If it was a final decree and appealable the point is well taken. Cameron v. McEoberts, 3 Wheat. 593; Mc- Micken v. Perin, 18 How. 507. "No rehearing shall be granted after the term at which the final decree of the court shall have been entered and recorded, if an appeal lies to the supreme court. But, if no appeal lies, the pe- tition may be admitted at any time before the next term of the court, in the discretion of the court. ' ' Equity rule 88. I doubt if the decree was a final decree. It in effect only changed the custody of the fund in controversy. It was yet to be disposed of by the court, and if it had been paid over to the receiver, could, if justice required, have been turned back to the defendant. As it was not paid over, it was within the discretion of the court to re- examine the question as to whether it should be paid over. But as no appeal lay from the decree to the supreme court, under the equity rule referred to, it was within the discretion of the court to allow a rehearing before the end of the next term, even if the decree was final. On the merits of the case equity and justice are with the de- fendant. Aside from the answers and exhibits attached, there is no evidence adduced. From the answers and exhibits it appears that the defendant, as administrator de bonis non, with the will annexed of Jacob V. Johnson, came into possession of the sum of $541.25, long prior to the ap- pointment of plaintiff as receiver in the case of W. H. Johnson v. W. E. Alexander, by this court, and that prior to notice he (defendant) had fully disbursed the same ANSWERS 165 tmder orders and judgments of the probate court of Franklin county, by wMch court he was appointed admin- istrator, and with whicti court he has settled his accounts. On what equity he can be compelled to pay again has not been pointed out. The former decree was based on the ground "that said Moody has disbursed the same with- out authority of law, and contrary to the orders of this court. ' ' This does not appear at this time, but the con- trary is fully established. Moody was not a party to the main case, and he disbursed the money under orders of the court which appointed him administrator long prior to notice from this court. A decree will be entered at the next term, vacating the decree entered herein at the April term, 1882, and dis- missing all proceedings against Amos L. Moody, with costs. 50. TEAVERS v. BOSS 14: N. J. Eq. Rep. 255 The Chancelloe: The defendant, having filed his answer to a bill for foreclosure, the complainant moves to strike out the answer as frivolous and impertinent. If the motion prevails, it must be upon the ground that the paper purporting to be an answer, and filed as such, is no answer. If the paper filed as an answer is not filed as required by the rules of court, or is not sworn to, or is in any other respect irregular, the court may treat it as no answer, and direct it to be suppressed or taken from the files. So if it contain no answer to any part of the complainant's bill, it will be ordered to be taken from the files. But if it be an answer, however insufficient, the court will not dispose of it upon summary motion, but leave the party to his exceptions. In TompMn v. Lethbridge, 9 Vesey 178, the answer was 166 TRAVEES V. BOSS clearly evasive, giving no information. A motion was made to take it from the file, on tlie ground that it wias so clearly illusive that the court might say it was no answer. The motion was denied. Lord Eldon said, it is very dif- ficult to lay down as a rule how much should, and how much should not be regarded as an answer, and not leave it to be matter of exception. But he intimated, if this should happen again, a general order should be made to prevent it in future, to the effect that whenever it can be shown that the answer is a mere delusion, it should be understood to be the practice to take it off the file. In Thomas v. Lethbridge, 9 Vesey 463, a motion was made to commit the defendant for contempt in putting in an answer clearly evasive. Lord Eldon intimated his opinion, that if an answer appears upon the face of it no- toriously evasive without explanation, it ought to be con- sidered an attempt to baffle the court, and make all its proceedings ridiculous. He nevertheless held, on con- sultation with the master of the rolls, that however proper it might be to make such a regulation for the fu- ture, it was impossible in that case to treat the party as guilty of a contempt, and the motion was denied. In Smith v. Serle, 14 Vesey 415, the same learned Chan- cellor said, that the decision made by him in. Tompkin V. Lethbridge was made upon the authority of a decision of Lord Thurlow, who held that if the defendant merely denied combination, that would not have been an answer, but by denying combination, and saying something about some allegation in the bill, though altogether immaterial, it was an answer. The Chancellor further said, in the case before me, I felt myself bound by that authority, but I am so unwilling to give any countenance to such an abuse of the practice, that I think I shall never be in- duced upon both these authorities to make such a de- cision again; and if such an attempt should be repeated shall hold it to be no answer. In Newman v. Gray, 10 Price 117, an answer to amend- ANSWERS 167 ments, (consisting only of a denial of a statement in the bill, which the defendant had already in effect answered in his first answer), was ordered to be taken off the file. In the case of Marsh v. Hunter, 3 Mad. 226, the Vice Chancellor, Sir John Leach, upon the authority of the opinion of Lord Eldon in Tomkin v. Lethbridge (not ad- verting to his later opinion in Thomas v. Lethbridge) denied a motion to take an answer off the file because it was delusive, answering only a few facts stated in the bill. In Olding v. Glass, 1 Younge & Jervis 340, the court refused to order an answer to be taken off the files, on the alleged ground that it was illusory, the defendant merely stating that he had no knowledge of any of the matters in the bill mentioned, and left the plaintiff to except. In 2 Daniells' Prac. 920 it is stated that the result of the cases appears to be, that although the court will re- move from the file any document which purports to be an answer, but is not so in reality, yet if any part of such document does entitle it to fill the character which it as- smues, although it is an answer to only one fact, the court will not take upon itself to decide whether it is evasive or not, but will leave the plaintiff to except to it for insuf- ficiency. I incline to think the fair result of the cases, and cer- tainly the true principle is, that if the answer is so evasive that it is obviously a mere delusion — if there is no answer of any of the material facts stated in the biU, and no reason assigned for not answering them, it will be considered as no answer, and the court will order it to be taken from the file. Phillips v. Overton, 4 Hay- wood 292; Cooper's Eq. PI. 313; 1 Barb. Ch. Pr. 169. Giving to the plaintiff the benefit of the principle thus stated, it is clear the case now before the court is not within its operation. However open it may be to excep- tions on the ground of insufficiency or impertinence, or 168 TEAVBES V. BOSS both, it cannot be treated as no answer. There is a denial of combination, and an answer to some of the material facts of the bill. If it be an answer, however defective, the complainant must either file exceptions or a replication, or set down cause for hearing upon bill and answer. Nix. Dig. 91, Sec. 28. If the answer sets up no legal defense, and the material facts are all admitted, the proper course is to set the cause down upon bill and answer, or if more evidence is requi- site to sustain the complainant's case, to take issue upon the answer. If the insufficiency or impertinence of the answ'er is such as to render it necessary to supply the de- fect by a more full answer, or to be relieved from the im- pertinent matter, the proper remedy is to file exceptions. It must be borne in mind that the question is not wheth- er the answer is lawful or not. That question cannot be examined upon this motion, much less is it necessary that the answer should contain a valid defense to the bill of complaint. No demurrer lies to an answer in equity. There are one or two early cases where it was resorted to. Williams v. Owen, 1 Chan. Cas. 56 ; Wakelin v. Mal- thal, 2 Chan. Cas. 8; Wyatt's Prac. Eeg. 162. But its propriety was doubted then, and in modem practice it is never used. In equity, a demurrer is only a mode of defense to the bill. It is never resorted to to settle the validity of a plea or an answer. Such method of procedure is not recognized in the books. Barton's Suits in Eq. 96; Mitford's PL, by Jeremy, 107; Cooper's Eq. PL 110 ; Story's Eq. PL, ch. 9 ; Lube's PL 46, 315, 355 ; Hinde's Pr. 146; Blake's Pr. 107; 1 Daniells' Pr. 598; 4 Bouvier's Inst., Sec. 4215; Eaymond v. Simonson, 7 Blackford 79 ; Thomas v. Brashear, 4 Monroe 65. A demurrer to a bill in equity, like a demurrer at law, may by the express term of the statute, if it appear to be frivolous or intended for the mere purpose of delay, be overruled as frivolous. Nix. Dig. 634, Sec. 117. ANSWEBS 169 The same practice would perhaps prevail independent of the statute. Bowman v. Marshall, 9 Paige's R. 78. But the practice does not extend to the case of an an- swer. I find no case in this court where an answer has been suppressed or ordered to be taken from the file on the ground of its insufficiency or frivolousness, except the case of Stout v. Evans, decided September, 1858, which was referred to upon the argument. That case appears to have been decided upon an ex parte hearing, and prob- ably under an impression that the answer was filed out of season. The motion must be denied. 51. MOOES V. MOOES 17 N. H. 481 Mk. Justice Woods : The plaintiff, in this suit, seeks to be relieved against a suit commenced at law by the defendant upon a promissory note of $1,025.52, signed by her, and delivered to him on the 18th day of October, 1840. The grounds upon which she claims the inter- position of this court are, without any doubt, sufficient to entitle her to the reUef sought, if the evidence is suf- ficient. She states, in substance, that she had a settlement with the defendant on that day, relating to an item of rent, which he owed her, and an item of money, paid by him for taxes which she owed him, and a claim which was at first disputed, but afterward admitted by her, of $25, which he called on her to pay him for wood he had fur- nished her father ; that the balance due to him upon the adjustment of these items was about $10, for which she was willing to give her note, and for which she intended to give her note ; but that, trusting her brother to write 170 MOORS V. MOOES it, she, through his fraud, had been made to sign a note for $1,025.52, the subject of the controversy. She states that she did not, at the time, owe him any further or other sum, and interrogates him as to whether there were any other demands or claims considered or included in the settlement, and if so, what? Whether there were any claims presented for money borrowed, and if so, what? The answer of the defendant was quite full, and shows that he held two notes against the plaintiff at the time of the settlement, from the aggregate amount of which the small balance of accounts due her was deducted, and the note in question for the remainder, and that the old notes were given up to her to be cancelled. This allegation in the answer does not derive direct support from evidence; but, on the other hand, the plaintiff has produced one witness, who was present dur- ing the interview, and who appears to have had some knowledge of the business that was in progress, and who did not hear any mention made of the old notes, or of money borrowed by the plaintiff of the defendant on former occasions. This was Friend Moors. His wife was also present a part of the time, and, al- though she heard conversation about rent and taxes, and wood, did not learn that the settlement compre- hended the more important matters of the notes. The testimony of these witnesses tends undoubtedly to sustain the allegations in the bill; that the three items of mutual account, which are described in it, were all that were comprehended in the settlement, and that the small balance resulting formed the only consideration for the note. But that testimony has to be considered in connection with the defendant's answer, which, in this material point in the controversy, is in direct conflict with the al- legations of the bill, and the question arises as to the weight that is to be allowed to the answer. ANSWERS 171 The general rule of law is quite clear, that when the answer controverts a material allegation of the bill, no decree can be made for the plaintiff, unless the answer in that particular is overborne by evidence that is more than equivalent to the testimony of one witness. 2 Story's Eq., sec. 1528; Dodge v. Griswold, 12 N. H. Eep. 577. In order that the answer may have that force, it is necessary that the statement of the bill which it contro- verts be a material statement; that is, that it be essen- tially a part of the plaintiff's ease, and that the answer, so far as it relates to the statement, contain such mat- ters only as the defendant is required by the exigencies of correct pleading to embrace in his answer. Or, in other words, that it go to the point of discovery, to which the plaintiff is entitled, by the case that he has stated; for it is clear that a statement which the defendant vol- unteers is entitled to no such consideration as is ac- corded to an answer strictly responsive to, and clearly demanded by, the case of the plaintiff. The plaintiff's case, as stated by the bill, is, that the note in controversy was obtained by fraud ; that she did not intend to give such a note ; that no such sum was due, and that no other demands than those which she enu- merated were embraced in the settlement. Now it is sometimes a question of difficulty to settle how far a defendant is required to go in his answer, and how far he may protect himself by saying that it is as particular as the plaintiff's question. Story's Eq. PL, sec. 855, note. But one principle, well stated, and stated in the books in the various forms, is this : that a simple denial of the plaintiff's case literally, as stated, is wholly insufficient. He must meet it with full and circumstan- tial denial, and not with a negative pregnant, which, while it controverts the case in the precise terms in which it is stated, is perfectly consistent with one not substantially differing from it. Story's Eq. PL, sec. 172 MOORS V. MOOES 855; Woods v. Morrill, 1 Johns. Ch. 103. As, if lie be charged with the receipt of a sum of money, he must deny that he has received that sum, or any part thereof, or else set forth what part he has received. If to that part of the bill which stated what items were comprehended in the s^ettlement, the defendant had said no more than that other items were comprehended, the plaintiff might still have had substantially the case made by the bill, and the answer yet have been true. To that part of the bill which states that no more than the small sum named was due, the defendant was bound to answer, not only how much was due, but, to the best of his abihty, upon what account it was due. Such discov- ery is important to enable the plaintiff to amend her case, or to maintain it by disproving the consideration, which, of course, it is the more difficult to do before the defendant has been called on to specify it. These obvi- ous purposes of the discovery would have been defeated by a less explicit answer. The answer, therefore, in discovering what matters were embraced in the settlement, contained no more than the defendant was bound by the statement of the plain- tiff's case to set forth, or was, in other phrase, strictly responsible to the bill. Although tending to sustain a material statement of the bill, we cannot say that the testimony of Friend Moors and his wife is in conflict with the answer in the particulars to which they in common relate. Had those witnesses participated in the transaction; had they, or either of them, had occasion or an interest to know its details, or had they even been so situated that they could have known them with reasonable certainty, the case would have been different. As it was, it is not unreason- able to suppose that they might have heard more of the smaller items, that required and actually engaged dis- cussion, than of the greater matters of the notes aad ANSWERS 173 interest, which might have been adjusted with fewer words, because of a nature to admit of no question. It is plain that all that is stated in the answer, on the subject of the settlement, might have been strictly true, and yet the facts stated have wholly escaped the notice of both the witnesses. However their testimony, there- fore, may tend to detract from the credit that might otherwise be due to the answer, it ought not to be consid- ered as coming in direct conflict with it. The answer is the testimony of one directly to a fact, about which it is scarcely possible that he could have been naistaken, or that he could have forgotten. The testimony of the wit- nesses, on the other hand, is only to the point that they did not observe a transaction that it is certainly possible might have taken place without their observation. Nor can we say that the case of the plaintiff derives material support from considering the other evidence which has been adduced by either party. No part of it goes to the point of sustaining the allegations of the bill against this denial in the answer, of the very essence of the plaintiff's case, even if we could say that the pre- ponderance was in favor of the plaintiff, on the second- ary matters on which it bears. The conclusion is, that the plaintiff's case, having been denied by the answer, and not sustained by sufficient evidence, no decree can be pronounced in her favor. Bill dismissed without prejudice. 52. SMITH V. POTTER 3 Wis. 432 Justice Ceaweoed : We have been unable to find any- thing in this cause to justify the circuit court in dismiss- ing the biU. The complainants filed their bill for the foreclosure 174 SMITH V. POTTER of a mortgage given to them by the defendant, to secure the performance of the condition of a certain bond. By this bond the defendant undertook to pay different sums of money to different persons, to whom the complainants, the obligees in the bond, were indebted. The defendant was required to answer the bill, but an answer under oath was waived, and accordingly he filed his answer, admit- ting the execution of the bond and mortgage, but insist- ing that subsequent to the date of the bond, one of the complainants, Schooley, acting for himself and his co- obligee, Smith, entered into another agreement with the defendant, which, after reciting a number of debts due and owing by the said Smith, Schooley & Co., almost identical with those mentioned in the bill of complaint, and in the bond, contains the following: "And I do hereby agree, that if the said Potter shall pay other debts of the old companies not mentioned above, that they shall be so much in extinguishment of my debt against him, secured by bond and mortgage." To this answer the complainants filed a replication, and the cause was brought to a hearing on bill, answer, repHcation and proofs. The rule in equity is well understood, that an answer which in responding to the bill denies all or any of the material facts alleged therein, will, so far as it is so responsive, prevail, unless the bill is sustained by two witnesses, or one witness, and strong and clear corrobo- rating circumstances ; but where the answer sets up new matter not merely responsive, but by way of avoidance or defence to the allegations of the bill, the answer in respect to such new matter is not evidence for the defendant, but must be sustained by extrinsic evidence. Vide Story's Eq. PI., sec. 849, a; Walton et al. v. Cody, 1 Wis. B. 420 and cases there cited. In a chancery proceeding, however, an answer must, with certain familiar exceptions, be un- der oath, unless the complainant thinks proper to relieve the defendant from swearing to the correctness and ANSWEBS 175 truth of Ms answer. Vide Cooper's Eq. PI. 325, and where, as in this cause, an answer not under oath, is filed, it is important to consider the effect to be given to such an answer. A defendant in chancery, who, under oath, gives a re- sponse to any particular fact or facts in the bill, thereby furnishes evidence in his own favor, because the com- plainant has appealed to the conscience of the defendant, and unless the statement of the defendant is disproved by more evidence than that of one witness in support of the bill, the oath of the defendant, which is made evi- dence in this cause, is not overcome by the oath of a single witness. There must be a preponderance of proof in favor of the complainant irrespective of the allega- tions contained in his bill, in order to entitle him to re- lief, when the defendant under oath denies the material facts on which the complainant grounds his claim to the relief sought. Where, however, the answer is not made under the sanction and solemnity of an oath, the same effect is not, and ought to be given to it, for in such a case, it is the imverified statement of the defendant which may be insufficient or evasive, and yet it seems not to be sub- ject to exceptions on that account, and in every thing in which it affords an answer in denial of complainant's averments, it ought only to be received and allowed to operate against the bill so far as to put the complainant to prove the averments denied, and in respect to any thing which is not strictly responsive to the matters set up in the bill, but stated as new and independent facts constituting a defense, the defendant should be required to establish such facts by competent proof. In the case of The Union Bank of Georgetown v. Geary, 5 Pet. 99, Mr. Justice Thompson says: "Although the reason of the rule which requires two witnesses, or cir- cumstances to corroborate the testimony of one, to out- weigh the answer, may be founded in a great measure upon the consideration that the complainant makes the 176 SMITH V. POTTEE answer evidence by calling for it, yet this is in refer- ence to the ordinary practice of the court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed as matter of evidence, when unaccompanied by an oath, and indeed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a de- nial of the allegations in the bill, analogous to the gen- eral issue at law, so as to put the complainant to the proof of such allegations." The rule which the supreme court of the United States, in the case just cited, incHned to, was distinctly enun- ciated by Chancellor Walworth in Bartlett v. Gale, 4 Paige 503. In that case the defendant's counsel claimed that the whole answer (which was not required to be made under oath), should be taken together as evidence in his favor, but it was held that "when an answer on oath is waived, although as a pleading the complainant may avail himself of admissions and allegations in the answer which go to establish the case made by the bill, such answer is not evidence in favor of the defendant for any purpose." Judge Story says that an answer, when under oath, is evidence for the defendant, if responsive to the alle- gations in the bill (Eq. PL, sec. 875, a), but in relation to the effect of an answer not under oath, he says : * ' This point does not seem definitely settled. It may perhaps be true, that it is not entitled to all the privileges of an answer under oath. But it is by no means clear that it is not evidence in favor of the defendant as to all facts, which are not fully disproved by the other evidence and circumstances in the case, and that it ought not to pre- vail where the other evidence is either defective, ob- scure, doubtful or unsatisfactory. He also suggests a doubt whether an answer not under oath should be waived, and at the same time the complainant be per- mitted to avail himself of the admissions of the answer, ANSWERS 177 without giving to its denials the like effect as evidence in favor of the defendant. Viewing the answer not under oath, as a mere pleading, whatever it admits would require no proof, because when a party admits the truth of anything by his written plead- ings, there can be no necessity to prove it ; but if he trav- erses or denies any thing, it becomes the party relying on the matter to establish it by evidence if it be ma- terial.' The difference, however, when the denial of the an- swer is under oath, or not under oath, consists in the quantum or amount of evidence. In the first case it re- quires two witnesses, or one witness and clear corrobo- rating circumstances to overcome the answer, and in the second case, the evidence of one credible witness would suffice to establish the averments of the bill denied by the answer. The learned commentator cites and relies upon the opinion of Lord Eldon, in Curling v. Towns- hend, 19 Ves. 628, where his Lordship declared that the court had the same authority from the defendant to look at the admissions or denials in the answer, when put in without oath, as if it had been under oath. There can be no doubt that in relation to his admissions, the defend- ant authorizes his answer to be used against him in the same manner as if it were under oath, but with great deference we think it is far otherwise in regard to the defendant's denials. Taking the rule as laid down by Chancellor Walworth, and referred to with approbation by the supreme court of the L^nited States in The Union Bank of George- town V. Geary, in connection with the language cited from Story's Equity Pleadings, there is but little difference observable, for even in an action at law, when the general issue is pleaded, if the evidence on the part of the plain- tiff is "defective, obscure, doubtful or unsatisfactory" he is not entitled to recover. So far then as the pleadings in this cause are con- E. p. C. — 12 178 SMITH V. POTTEE cerned, and the material parts of the complainant's bill, namely, the execution of the bond and mortgage, and the delivery thereof to the complainants, are admitted by the answer, and to the new matter insisted upon by the defendant, namely, the making of the subsequent agree- ment and payment of the debts due by the complainants, in pursuance of such subsequent agreement, the com- plainants filed their replication, and thereby imposed the necessity on the defendant to sustain such new mat- ter by proof. It appears that by the consent of the parties, a com- missioner was appointed to take proofs, and that not- withstanding notice of the time and place of taking the proofs, the defendant did not appear or offer any evi- dence, and the only proofs produced before the commis- sioner and returned by him, consisted of the bond and mortgage executed by the defendant. Subsequently, by consent, the parties appeared before the commissioner, and the defendant offered to prove the value of certain lots in the village of Taycheedah, on the 22d day of February, 1851, which lots had been sold by the com- plainants to the defendant. And to secure a portion of the purchase money of which, the bond and mortgage in question had been given. This evidence was objected to as irrelevant, and sub- ject to such objection, it was agreed by the parties that the lots mentioned were each worth the sum of fifty dol- lars. We also find among the papers two affidavits made by the defendant, one of which was filed in the circuit court two days before the date of the decree, and the other on the day on which the decree was made. The purport of these affidavits is that the defendant purchased from the complainants a certain lot which they represented to have upon it a valuable steam mill, which representation was untrue, and that the bond and mortgage had been given to secure the payment of a part of the price en- ANSWERS 179 gaged to be paid for tlie lot, and that the amount re- maining unpaid on the bond and mortgage was four hun- dred dollars. There is also an affidavit of Mr. Wood, who was the solicitor who prepared the defendant's an- swer, stating that before preparing the answer, he had been informed by the defendant of the false representa- tions made to him by the complainants in the purchase of the lot aforesaid, but that from a want of sufficient knowl- edge of the facts, he was unable to set them forth in the answer. These affidavits, it is needless to say, could answer no purpose as evidence in the cause, and we have no means of knowing the object of their introduction. They may have been filed in support of an application for a continuance, or for some other purpose, but the scanty "docket entries" attached to the original papers re- turned to us afford no information on the subject. The only legitimate proof in the cause, was confined to the bond and mortgage, the execution of which had been admitted in the answer. The effect of this evidence was to establish a prima facie case for the complain- ants, and there is nothing constituting a defense shown by the defendant. The bond given in this case was not a mere bond of indemnity, for if it had been then it would have been incumbent on the complainants to show that they had been damnified and the condition broken, thereby giving them a right to pursue their remedy; it was a bond for the payment of money, and the onus of showing a performance of the condition of his bond rested upon the defendant. This is abundantly sus- tained by the authorities. Vide Holmes v. Rhoade, 1 Bos. & Pul. 638 ; Hodge v. Bell, 7 Burn & E. 93 ; 1 Saund. 116, note 1; Thomas v. Allen, 1 Hill 145; Gray v. Gardi- ner et al., 17 Mass. 188. It is useless to say more than that the complainants are entitled to the usual relief in cases of this kind, and in order that it may be ascertained how much remains to 180 HOLT V. DANIELS be paid by the defendant, and that the proper proceed- ings may be had in the circuit court, the decree below is reversed, and the cause remanded for further proceed- ings. 53. HOLT V. DANIELS 61 Vt. 89 PowEES, J. : The defendant, by a demurrer, interposed into his answer (as a part thereof), raises the question of the jurisdiction of the court to entertain the bill. The propriety of this mode of pleading has been considered of late, and the effort has been to adhere to the rules of pleading laid down in the text books and best considered cases. The respective functions of a demurrer and an answer are entirely distinct and one cannot take the place of the other. The answer serves the double purpose of plead- ing and evidence. So far as it sets up matter as a bar it is a pleading. So far as it serves the complainant's purpose by discovering facts, it is a deposition. If the defendant would waive making an answer, he may demur or plead. The object of a demurrer or plea, as a general rule, is to excuse the defendant from answering the bill on its merits. Both are dilatory pleadings, a demurrer being proper if the fault of the complainant's case is ap- parent from the face of the bill, and a plea being proper if the fault must be shown by bringing matters dehors upon the record. Accordingly it has been generally said in the books that a party cannot demur or plead and an- swer the same matter, but he may demur to one part of the bill, plead to another and answer to another. If he answers to the same part that he demurs to, his answer will overrule his demurrer. The rule is the same at law. 1 Chit. PI. 512. The reason for the rule is thus given by Gilbert, Forum Eom. 58, in speaking of dilatory defenses, ANSWERS 181 "all these pleas with us are to be put ante litem con- testam, because they are pleas only why you should not answer, and therefore if you answer to anything to which you may plead, you overrule your plea, for your plea is only why you should not contest and answer, so that if you answer, your plea is waived." This rule is laid down every^'-here as expressive of the true function of a demurrer or plea in its relation to the answer. Mitford (Tyler's Ed.) 304, 305, 411, Beames' PL in Eq. 37; Wha- ley V. Dawson, 2 Sch. & Lef . 371 ; Jones v. Earl of Straf- ford, 3 P. Wms. 81 ; OHver v. Piate, 3 How. 412 ; Clark V. Phelps, 6 Johns. Chan. 214; Wade v. Pulsifer, 54 Vt. 71. Incorporating a demurrer into an answer is often done and no violation of the rule is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents instances may be found of demurrers and pleas incorporated into answers, but in each case the an- swer was provisional, the plea ending with a demand for judgment, and then proceeding, "and if this defendant shall by order of this honorable court be compelled to make any other answer to the said bill, etc., then and not otherwise the defendant saving, etc., answereth and saith," going through the answer as if no plea had been put in. The more modern practice, however, and the one sanctioned by Mitford and other standard writers, is to file each pleading by itself. But in all cases the de- murrer should be brought to a hearing before the cause is tried on its merits. Wade v. Pulsifer, 54 Vt. and cases there cited. In this case it is urged that a court of equity has no jurisdiction, as a court of law could give the orator an adequate remedy. This objection, if valid, is apparent upon the face of the bill and so is the subject of a de- murrer, and if it be sustained the case is at an end. But an objection to the jurisdiction of the court, if the court has general jurisdiction of the subject-matter, will not 182 HOLT V. DANIELS be entertained unless it is brongM to a hearing before the expense of a trial upon the merits has been incurred. In 1 Dan. Chan. Prac. 579, it is said that if the objection to the jurisdiction is not taken seasonably by plea or de- murrer and the defendant enters into his defense at large, the court having the general jurisdiction will exer- cise it. To the same effect are the cases Cong. Society V. Trustees, etc., 23 Pick. 148; Underhill v. Van Cort- landt, 2 Johns. Chan. 369; Bank of Bellows Falls v. R. & B. K. R. Co., 28 Vt. 470. Indeed the rule in equity ap- pears to be the same as at law. A plea to the jurisdic- tion at law is said to be analogous to a plea in abatement and is the earliest in the order of pleading, and if the general issue be pleaded the jurisdiction is confessed. So in equity it is a dilatory objection that is waived by an answer. In equity, as at law, if the court discovers that under no circumstances has it jurisdiction in the premises, it will, at any stage of the proceedings, dis- miss the cause sua sponte, if no objection is raised. In the case at bar a court of equity has jurisdiction. The sale of the colt to the orator with a lien reserved to the defendant amounted to a mortgage of the colt. The orator all the time had an equity of redemption and after condition broken might sustain a bill to redeem as was held by this court in Blodgett v. Blodgett, M. 48 Vt. The facts appearing from the master's report show that the question whether the defendant's lien upon the colt had been extinguished by payment in full depended upon an accounting of the farm dealings. Courts of equity have concurrent jurisdiction with courts of law in all cases where the common law action of account would lie, Fonblanque Eq. 1, 10; Cooper Tr. 26; Bispham Eq. 484; Ludlow V. Stenard, 2 Caine's Cas. in Error 1; Leach v. Beattie, 33 Vt. 195, and in many other cases where the accounts are intricate and a discovery is demanded. In the action of trover brought by the defendant against the orator, no offset arising out of the farm dealings would ANSWERS 183 be available to the orator, and unless he could make out full payment of the lien, he would be cast in the suit. But in equity on an accounting he can have applied all the indebtedness in his favor that he can establish, and if this is insufficient to extinguish the lien, the court can give him a day of redemption. In taking the accounts of the parties, the master finds that items 42 and 43 in the defendant's specification accrued from false representations of the defendant. These items should be disallowed, as in equity no one can be made a debtor by fraud. The decree is reversed and the cause remanded with a mandate to enter a decree for the orator to recover the sum of $42.98 reported by the master, with interest there- on from March 1, 1884, and that the further prosecution of the suit at law in favor of the defendant against the orator mentioned in the pleadings be perpetually en- joined. XIII EXCEPTIONS TO ANSWERS 54. LANGDON v. GODDAED 3 Story 13-25 Statement of Facts : This cause was heard upon ex- ceptions to the answer of defendant Goddard to com- plainants' bill. The first exception was that a certain allegation on the ninth page of the answer was imperti- nent, and should be stricken out. The allegation in ques- tion was to the effect that the testatrix, Elizabeth Sewall, executed a codicil to her will on August 21, 1838, being moved thereto by the importunities of complainants, and charging the complainants with, in effect, dictating the codicil. The will and codicil in question had, prior to the filing of the answer, been duly admitted to probate by the proper court. The second exception was to a state- ment that he, defendant, had sought to procure Mr. Emerson to effect a settlement of the disputes between him and complainants, and that he and Emerson had agreed upon terms, to which, however, complainants would not afterwards adhere. This statement, it was in- sisted, was impertinent. The third exception was that defendant had not, to the best of his knowledge and belief, answered a certain in- terrogatory of plaintiffs. Stoey, J. : I am of opinion that all the exceptions to the answer are well taken, and ought to be allowed. The first exception turns upon the allegations in the an- swer therein referred to, by which an attempt is made by a side wind to impeach the bona fides and due execution of the codicil to the will of Mrs. Sewall, and by implica- 184 EXCEPTIONS TO ANSWERS 185 tion to insinuate that it was procured by fraud and impo- sition. Now, it is well known tliat the courts of probate have a full and exclusive jurisdiction, as well in New Hampshire as in Maine, over the probate of wills, and that their decree, affirming the validity of a viU or codicil, and allowing the same, is conclusive upon the subject-matter, and is not re-examinable elsewhere. The present codicil has been duly admitted and allowed by the probate courts of both states. The allegation of the answer here excepted to is, therefore, at once imperti- nent and immaterial, and endeavors to cast a shade upon the transaction, which is not justifiable or excusable. It is not a matter which can be filed in controversy in the present suit, or admitted to proof. The second exception is to the allegation in the an- swer setting up an attempted settlement and arrange- ment, of the nature and terms of which no account is given, by the defendant with the plaintiffs, through the means of a professional friend, which was not accepted or adhered to by the plaintiffs, and therefore failed of its purpose. What is this but to stuff the answer with immaterial and impertinent suggestions for the purpose of giving a false gloss and coloring to the controversy? Besides, as the nature and terms of the proffered set- tlement and arrangement are nowhere stated, it is im- possible for the court to see what possible bearing it could properly have upon the cause. The third exception is the insufficiency of the answer to the eighth interrogatory propounded by the bill, and states the very words of that interrogatory. That inter- rogatory undoubtedly was intended to refer to the fol- lowing allegation in the bill, viz.: "Your orators fur- ther say that thereafterwards the said Elizabeth fre- quently called upon the said Goddard to refund to her the amount of the said notes so sold by her to him, or to return the same, and that the said Goddard repeat- 186 LANSDON V. GODDAED edly promised so to do. That on the 20th day of August, 1838, the said William Goddard prepared with his own hand an instrument purporting to be a codicil to the will of said Elizabeth, and procured the said Elizabeth to sign the same, therein and thereby bequeathing to him the aforesaid notes of Floyd and Harris, and also all sums of money due from him to the said Elizabeth, which codicil was so signed by the said Elizabeth by induce- ment of the said Goddard, and by reason of the confidence subsisting between the said Elizabeth and the said God- dard, and was thereafterward revoked by the said Elizabeth, which codicU was, after its execution, carried away by the said William, and is now in his possession." It is certainly not as pointed, full and precise as it ought to be to meet all the stress of the allegations of the bill. It does not interrogate as to the present possession by the defendant of that codicil, or as to what has become of it, and when he last saw it, and what were the exact purport and words thereof; nor does it call upon the defendant to produce it. Still, however, it is sufficient to call upon the defendant for a fair and full answer to the plain import and objects thereof. I cannot but con- sider the answer put in to this point as inexplicit and evasive, if it does not deserve the stronger imputation of being disingenuous. I shall therefore direct that the defendant put in a more full and direct answer to the interrogatory and allegation in the bill, applicable thereto, so that the justice of the case may on this point be fully presented to the court. I shall also give leave to the plaintiff to put additional interrogatories to the defendant applicable to this same allegation, so as to compel a direct and positive disclosure of the facts ap- pertaining thereto. The defendant is to pay the costs of the hearing upon and allowance of these exceptions, which I shall direct to be taxed at $10. XIV CROSS-BILLS 55. NEAL V. FOSTER ET AL 34 Fed. Rep. 496 Deadt, J. : The original bill in this case was filed on July 1, 1886, against James H. Foster, John A. Craw- ford, William Crawford, Ashby Pearce, John R. Balti- more, J. L. Tiles, E. Walden, and W. H. Groltra, and the object of it was to have certain conveyances of real prop- erty situate in Albany, Linn county, theretofore made by Foster to the Crawfords and Ashby Pearce, set aside as fraudulent. The other parties, including Goltra, were made defend- ants in the bill, because they were, or claimed to be, judg- ment creditors of Foster's, and in their answers they set up their claims accordingly. The Crawfords and Foster answered the bill, denying that the conveyances were fraudulent. The plaintiff replied, and on October 7, 1886, the ease was referred by the circuit judge to a mas- ter, who on August 29, 1887, filed his report of the evi- dence taken by him, and also his conclusion of fact and law thereon, as directed by the order of reference. In his answer Goltra states that in February, 1886, he obtained judgment in the state circuit court for the coimty of Linn against Foster on divers claims for the sum of $16,118.84, for which he claims a lien on the prop- erty in question. On November 14, 1887, the defendants, Foster and John A. and William Crawford, had leave to file what is styled therein "a supplemental cross-bill," in which it is alleged as a bar to Goltra 's claim to enforce his judg- 187 188 NBAL V. FOSTER ET AL. ment against the property in question ; that on February 10, 1886, he commenced a suit in the state circuit court aforesaid against the plaintiffs in the cross-bill to enforce the lien of his judgment against the property in question, on the ground that the conveyances thereof by Foster to the Crawfords were fraudulent, because made with in- tent to defraud Groltra and other creditors of Foster ; that the defendants in said suit answered the complaint, deny- ing the allegations of fraud, and averring that the con- veyances were made in good faith, and for an adequate consideration; that Goltra filed a reply to this answer, and upon the issue thus raised the cause was, on July 9, 1886, heard by said court, which found that the convey- ances in question were made to the Crawfords in good faith, and for an adequate consideration, and decreed that the bill be dismissed, and the defendants recover their costs; that Groltra appealed from said decree to the supreme court of the state, where, on April 11, 1887, said appeal was, by the order of said supreme court, dismissed at the cost of the appellant, whereby the decree of said circuit court of July 9, 1886, remains in full force and effect, and is now binding between the parties thereto. On December 31, 1887, Goltra demurred to the cross- bill. On the argument the objections made to the filing of the bill when the application was made therefor were restated, and insisted upon. The point was also made that the cross-bill does not state the facts of the original bill. The bill states the commencement of the original suit, giving the date thereof, and the names of the parties thereto, and adds, " the object and purpose of said orig- inal bill being as therein stated and prayed. ' ' The proceedings on the original bill are then stated as above, down to the filing of the master's report, to which is added the allegations that Goltra was made a defend- ant in the original bill, as one of the creditors of Foster, while his interest was that of a plaintiff ; and by said bill CeOsS-bills 189 and the report of the master, Goltra is represented as being entitled to share in the proceeds that may accrue to the creditors of Foster by virtue of any decree of this conrt in the original suit. It is said that the cross-bill should state the original bill, or the parties, prayer, and object of it, the proceed- ings thereon, and the right of the plaintiff therein, which is sought to be made the subject of the cross-litigation. Story Eq. PI. Sec. 401; Adams, Eq. 403. In England, where this rule had its origin, a cross-bill might have been filed in another court than that in which the original was pending. Story, Eq. PI. Sec. 400. In such case it would be necessary to set forth the matters in the orig- inal bUl, and its prayer and object, together with the pro- ceedings thereon, if any, so that the court might be possessed of the whole case, of which the cross-bill is only a part. But this practice never obtained in this country. In the national courts, at least, the cross-biU must, from the necessity of the case, be filed in the circuit court where the original bill is depending. In such case there is no necessity of bringing the facts of the original bill or its object or prayer to the attention or knowledge of the court by repeating them in the cross- bill, and a mere reference to the bill, which is already be- fore the court ; and a part of the case is sufficient for all practical purposes. Of course, it is necessary to set forth in the cross-bill so much of the matter in the orig- inal bill, and the subsequent pleadings and proceedings thereon, as may be necessary to show what right or de- fense is sought to be brought before the court for ad- judication, and to make a proper case therefor. This has been done in this case. Goltra, a defendant in the original bill, but whose interest in the suit is that of a plaintiff, seeks by his answer, in case the court should find that the conveyances by Foster to the Crawfords are void as to the creditors of the former, and order a sale thereof, to have his adjudgment against his co-defendant 190 NEAL V. FOSTER ET AL. Foster satisfied out of the proceeds of the property. And now his co-defendants in the original bill, Foster and the Crawfords, seek by the cross-bill to set np as against him the defense of a prior adjudication by the state court, as between them, of the question of the validity of the conveyances. It is admitted that the defense as stated is a bar to the demand of Goltra to have his claim satisfied out of the proceeds of this property; that, having litigated the question of the validity of the conveyances of the same as against the creditors of the grantor in the state court with him and his grantees, the Crawfords, he is estopped to allege or claim anything to the contrary of the decree in that suit. A cross-bill is generally considered and used as a mat- ter of defense, and may answer the purpose of a plea, puis darrein continuance, where the matter of the de- fense arises after answer. A cross-bill is either brought against the plaintiff in the original bill or one or more of the defendants therein, and the original and cross-bill are considered one cause. 1 Smith Ch. Pr. 459, Story, Eq. PL Sec. 389, 393; Adams, Eq. 402; Field v. Sehief- felin, 7 Johns. Ch. 252 ; Cross v. De Valle, 1 Wall. 14. It is also maintained that the cross-bill is filed too late, and that nothing has arisen since the commencement of the suit which would justify its filing. This point was made and argued on the application for leave to file the cross-bill, and it is contended that the question cannot now be raised again on the demurrer. But the rule is otherwise. It was not necessary to give notice of the ap- plication for leave to file a cross-bill ; nor, so far as I am advised, to obtain leave before doing so. The only case 1 have found on the subject is Bronson v. Eailroad Co., 2 Wall. 283. There a cross-bill filed without leave of the court was set aside as irregular. But it was filed by a person not a party to the suit, who petitioned the court for leave to answer for a defendant corporation, then in CROSS-BILLS 191 default, of wMcli he was a stockholder, and also to file .a cross-bill. Leave was given to file the answer, but as to the cross-bill the order of the court was silent. The par- ty filed the answer for the corporation, and also a cross- bill, which was subsequently set aside because filed with- out leave, by a stranger to the suit. A cross-bill is a regular and legitimate proceeding in a court of equity, to which any party defendant may re- sort in a proper case, without any special leave of the court. But in doing so he must conform to the law or rule which governs the case, or take the consequence. Story says (Eq. PI. Sec. 632): "A cross-bill will be open to a demurrer if it is filed contrary to the practice of the court, and under circumstances in which a pure cross-bill is not allowed." And as an illustration he cites the case of a cross-bill filed after publication of the testimony in the original suit, which seeks to introduce new testimony as to matters already in issue therein. It is generally stated in the books that a cross-bill must be filed before publication, — that is before the taking of testimony in the original case is closed, and the same opened to the inspection of the parties or published,— unless where some new matter, as a release, arises after- wards, or the case appears at the hearing too imperfect to reach and settle the rights of all the parties. As an Olustration of the reason of this restriction, Chancellor Kent, in Field v. Schiefeelin, 7 Johns. Ch. 253, says : "It is too late, after publication, to introduce new and further testimony to the matter in issue by the con- trivance of a cross-bill. It would be doing in an indirect way, per obliquum, what is forbidden to be done di- rectly," — referring to Hamersly v. Lambert, 2 Johns. Ch. 432, The reason given for this is that, if after the publica- tion of the testimony, and the defendant has found out wherein it is defective, he was allowed to supply the same by suppletory proof taken on a' cross-bill, there would be 192 NEAL V. FOSTER ET AL. great danger of perjury and fraud. Field v. Schieffelin, 7 Johns. Ch. 254; Story Eq. PI. Sec. 395. But the fact on wMch this artificial superstructure of caution and prevention is raised has long since ceased to exist in the courts of the United States. At one time all testimony taken in a suit in equity was taken by exam- iners or commissioners on written interrogatories, and neither the parties nor their attorneys were allowed to be present at the examination, while the persons before whom the testimony was taken were sworn to secrecy. 1 Smith Ch. Pr. 40, 356-359, 361-374. The testimony Was then returned into court sealed up, and remained so until the taking of testimony in the case was closed, when an order of publication was passed, and the depositions were opened. Now, however, under equity rule 67, the testimony may be taken orally before an examiner in the presence of the parties and their attorneys, who propound the interrogatories, and, when taken on commission and writ- ten interrogatories, the depositions may be and usually are opened and inspected as soon as returned to the clerk's office. In other words, there is no longer any se- crecy in the premises, and there is now no reason why the period or fact of publication should be arbitrarily pre- scribed as the point of time beyond which a cross-bill can- not be filed. The court may, sua sponte, direct the filing of a cross-bill when it appears necessary to a complete determination of the case, at any time before final decree ; and, in my judgment, there ought to be no fixed rule against a defendant's filing a cross-bill in a proper case before the final hearing; the objection of laches being dis- posed of in each case on the particular circumstances thereof, or by rule of court or the supreme court. But even under the old state of things the objection to filing a cross-bill after publication had passed was really confined to cases, or at least the reason given for it would so confine it, where the cross-bill sought to introduce new CROSS-BIIiLS 193 or further testimony concerning the matters already in issue. Forum Eomanum, 46. But this bill seeks noth- ing of the kind. It sets up a prior determination be- tween the plaintiffs therein and the defendant Goltra of the question of the validity of the conveyances to the Crawf ords, a matter which is not mentioned in the orig- inal bill, or the answers thereto, and about which no tes- timony could have been taken, and concerning which there can be no danger of perjury, for it must be proved, if at all, by the record. The application for leave to file the cross-bill was placed on the ground that the defense did not arise until April 11, 1887, when the suit of Goltra against Foster and the Cra'\\'f ords was finally determined in the supreme court by the dismissal of the appeal, and therefore it was in the nature of a plea puis darrein continuance. This conclusion was based on the theory that the decree of the state circuit court, in Goltra v. Foster et al, was sus- pended during the appeal, and could not be used as an es- toppel while the appeal was pending, according to the rul- ing in California under a similar statute, which declares that ' ' an action or suit is deemed to be pending from the commencement thereof until its final determination upon appeal, or until the expiration of the period allowed to take an appeal." Code Civil Proc. Or. Sec. 505. See Sharon v. Hill, 11 Sawy. 302, 26 Fed. Eep. 337. But the supreme court of the state, in Say v. Holland, 15 Pac. Rep. 855, have since held otherwise, and said, in effect, that the decree of the lower court was operative for all purposes during the appeal as well as the period allowed for taking it. And so, in the light of this decision, the right to file the cross-bill cannot be rested on this ground It may be taken for granted that the plaintiffs in the cross-bill could not have the relief prayed for therein as against their co-defendant Goltra, by answer, or other- wise than by cross-bill. The filing of the bill took place before the cause was E. p. C— 13 194 ADAMS V. VALENTINE submitted for final hearing. It sets up a simple, distinct defense against Goltra's right to have his judgment satisfied out of this property. As it rests on an alleged record, the determination of its truth or sufficiency can- not materially delay or prejudice the final disposition of the case. Under the circumstances, I do not think the demurrer to the bill ought to be sustained on the ground of delay in filing the same. Some other causes of demur- rer are assigned, but as they were not noticed in the argu- ment, and do not appear to be material, they need not be considered. The demurrer is overruled. 56. ADAMS V. VALENTINE 33 Fed. Rep. 2 Wallace, J. : This suit is brought to enforce the spe- cific performance of a contract between the parties of the date of March 21, 1885, by which the complainant agreed to sell, and the defendant to buy, certain real estate, with a dwelling-house thereon fronting on Mount Vernon street, formerly Olive street, Boston, for the sum of $50,- 000, to be paid in cash on delivery of the deed; $1,000 of the consideration money having been paid at the time of making the contract. The contract contained the fol- lowing clause : "Conveyance to be made by a good and sufficient deed, giving clear title from all incumbrances on or before the fifteenth day of April next ensuing; sale subject to restriction against building beyond the present front line of the house; title to be good or the sale void." The time for executing the conveyance was extended by the mutual understanding of the parties, and had not ex- pired April 23, 1885; and on that day the defendant by letter notified the complainant that he should recede from the purchase, and expect the return of the $1,000, CROSS-BILLS 195 because of a defect in the title to the real estate consist- ing of "a condition imposed by the deed of Jonathan Mason to Charles BiTlfinch, dated October 19, 1805, also imposed by a number of succeeding conveyances." The deed from Mason to Bulfinch describes the premises in question as a lot of land "situate on Mount Vernon, west- ward of the estate of H. G. Otis, Esq." and conveys the land by metes and bounds, and contains the following clause: "Provided, and upon condition, that no building shall ever be erected upon said prenaises nearer to Olive street than said Otis' house now stands." Bulfinch con- veyed the premises to Humphreys by a deed dated Feb- ruary 10, 1806, which contained this language: "Pro- vided, and this deed is upon condition, that no building shall ever be erected upon such premises nearer to Olive street than the house of H. G. Otis now stands." In sev- eral subsequent deeds conveying the same premises the words "upon condition" were omitted, but the words "provided that," etc., were retained. The deed to the complainant's testator, bearing date June 5, 1858, con- tained this recital: "The premises being subject to a con- dition that no building shall be erected nearer to Mount Vernon street than the house formerly of Harrison Gray Otis now stands." Several defenses to the action have been urged; but the conclusion which has been reached makes it unnecessary to consider whether there are any grounds for denying specific performance of the contract other than that upon which the defendant placed his re- fusal to complete the purchase in his letter of April 23d. The principles which control certain actions for spe- cific performance are familiar, and, so far as they are ap- plicable to the present controversy, can be briefly stated. Equity will not decree specific performance of a contract to purchase real estate, when the decree would compel the defendant to accept a doubtful title. The purchaser is entitled to a marketable title. He is not justified in refusing to perform the contract because a fanciful or 196 ADAMS V. VALENTINE speculative doubt may be suggested, of its validity. But a title open to a reasonable doubt is not a marketable one; and unless the defect belongs to the category of those in which substantial justice can be done by allowing compensation to the purchaser, and decreeing perfor- mance with allowances, the purchaser will not be subject to the contingency of being disturbed, or having his title successfully challenged when he attempts to part with it. In such actions, unless the party is present in whom the outstanding right is vested, the court will not undertake to cure infirmities by deciding a disputed question of fact or a doubtful question of law, but will refuse to decide for or against the validity of the title. Pyrke v. Wadding- ham, 10 Hare, 1 ; Bell v. Holtby, L. R. 15 Eq. 178 ; Swayne V. Lyon, 67 Pa. St. 436 ; Dobbs v. Norcross, 24 N. J. Eq. 327; Griffin v. Cunningham, 19 Grat. 571; Park Com'rs v. Armstrong, 45 N. Y. 234. The case of Jeffries v. Jeffries, 117 Mass. 184, is in point. That was a bill in equity to enforce specific per- formance by the defendant of an agreement for the pur- chase of a house and lot of land in Boston. The defense wias that the title was incumbered by a condition which prevented the erection of any building exceeding a speci- fied height upon the part of the land abutting on the street. The court used this language : "It is urged by the plaintiff that the court should, at least, pass upon the question whether the proviso in the deed is a condition now in force which may defeat the title derived under it, because otherwise it can never be brought to a decision except at the risk of the forfeiture of the entire estate. But that is precisely what the court has not power to do so as to conclude those to whom the benefit of the condition, if it be one, has passed ; and the effect of a decree overruhng the defense would be simply to transfer from the plaintiff to the defendant whatever of risk or inconvenience there may be from such a cause. Hence the propriety and necessity of the rule in equity CROSS-BILLS 197 that a defendant in proceedings for specific performance shall not be compelled to accept a title in the least degree doubtful. It is not necessary that he should satisfy the court that the title is so defective that he ought to prevail at law; it is enough if it appear to be subject to adverse claims which are of such a nature as may reasonably be expected to expose the purchaser to controversy to maintain his title or rights incident to it." The restrictive clause in the Mason-Bulfinch deed, and the succeeding conveyances referred to in the defend- ant's notice of rescission, applies to a strip of land adjoining Mount Vernon street which is 30 feet in width, and whether treated as a strict condition, or only as a covenant running with the land, constitutes a defect in the title of the property which is not susceptible of pecuniary compensation. Grilbert v. Peteler, 38 N. Y. 165. If it is only a covenant, it affects part of the land purchased by the defendant with a servitude of a sub- stantial nature, and the diminution in the value of the property purchased cannot be ascertained with any approximate accuracy. If the clause creates a condition, it constitutes a fatal defect in the title which the defend- ant is asked to accept. By the contract of purchase the defendant stipulated, in substance, to accept a title which would be subject to a servitude restricting the mode of use of the strip of land abutting on Mount Vernon street. Giving proper effect to the contract, he is entitled to have a clear title, free from all incumbrances except a servi- tude affecting only the strip in question; but he is not required to accept a title by which the whole estate becomes liable to forfeiture in case the part subjected to the restricted use is ever a,ppropriated to a different use. The clause in the Mason-Bulfinch deed, and especially the one in the Bulfinch-Humphreys deed, imposing the restriction against building, is in terms appropriate to create a condition, as distinguished from a limitation of 198 ADAMS V. VALENTINE covenant. Nothing could be plainer or more perem- tory than the words in the latter deed, — "provided, and this deed is upon condition that. ' ' There is no room for construction, and there is nothing in the context of either of these deeds which warrants any other than the ordi- nary meaning of the language employed. Effect must be given to it conformably with the well-settled rules of law as expressing a technical condition. Gray v. Blanchard, 8 Pick. 283 ; Langley v. Chapin, 134 Mass. 82. The cases of Ayling v. Kramer, 133 Mass. 12 ; Skinner V. Shepard, 130 Mass. 180; and Episcopal Mission v. Appleton, 117 Mass. 326, — which illustrates the familiar rule that, although the words in a deed or devise are sufficient to create a condition the breach of which Would forfeit the estate, the courts lean against such a con- struction, and when the words are capable of being treated as a covenant or restriction, will hold that they do not amount to a condition, do not conflict with the con- clusion reached. The instrument considered by the court in each of these cases contained language from which it was reasonable to infer that the clause under consideration was not intended to operate as a condition. The extrinsic evidence introduced by the complainant, for the purpose of showing that neither Mason nor Bul- finch intended that the restrictive clause in their deeds should take effect as a condition, if competent in any view as against the defendant, is not persuasive ; much less is it controlling. So far as this evidence relates to the Mason-Bulfinch deed, it does not require comment, because the defendant must prevail if the clause in the Bulfinch-Humphreys deed is a condition ; and it is there- fore immaterial what construction is given to the clause in the Mason-Bulfinch deed. So far as it relates to the Bulfinch-Humphreys deed, it is to the effect that, shortly after Bulfinch purchased of Mason the property described in the Mason deed, which property included, not only the complainant's lot, but the lot adjoining it CEOSS-BILLS 199 fronting on tlie same street, he conveyed the adjoining lot to Higginson by a deed without any condition or restriction against building. The deed to Humphreys and the deed to Higginson were apparently prepared at the same time, because they bear the same date ; but the deed to Humphreys was not executed until a few days after the execution of the deed to Higginson. Conced- ing, for argument, that the evidence authorizes the infer- ence that Bulfinch did not regard the restrictive clause in Mason's deed as a condition, the question is wtiether he intended to impose a condition in his own deed to Humphreys ; and the fact that he saw fit to convey part of the land without condition or restriction has no legit- imate bearing upon this question. It does not throw any light upon the meaning of his deed of another part of the land, made about the same time, to another person, in which he incorporated, not only a restriction, but an unequivocal condition. If such evidence can overthrow the plain language of a written instrument, the learning of the conveyancer is vain. It must therefore be determined that the complainant is unable to convey such title as the contract requires, and that specific performance should be denied. As the defendant insists by his answer upon a return of the money paid at the time of executing the contract, he is entitled to a decree to that effect, if the facts justify it, although he has not filed a cross-bill. Story, Eq. PI. See. 394; Turner v. Marriott, L. E. 3 Eq. 744; Eoyou v. Paul, 28 Law J. Ch. (N. S.) 555; Turquand v. Rhodes, 37 Law J. Ch. (N. S.) 830. It therefore becomes neces- sary to pass definitely upon the question of the valid- ity of the title. Upon the view taken of the title and of the contract the defendant would be entitled to recover back his money in an action on the law side of the court. The decree must therefore direct repayment. 200 LOWBNSTEIN V. GLIDEWELIj 57. LOWENSTEIN v. GLIDEWELL 5 Billon 325-329 Statement of Facts: Plaintiff filed bill to foreclose deed of trust. Partee and wife were made defendants upon allegation of interest. Partee and wife answered, and also filed cross-bills praying cancellation of deed of trust, etc. No process was issued on cross-bill, and plaintiffs in original bill did not enter appearance. Plaintiff in original bill moved to discontinue. Partee and wife objected and moved for decree pro confesso on cross-bill. Caldwell, J. : The plaintiffs in the original bill have the right, as a matter of course, at any time before de- cree, to dismiss their bill at their own costs. 1 Barb. Ch. Prac. 225, 228; 1 Daniel's Ch. Prac. 792. The cause is not at issue on the original bill — no replication to the answer having been filed — and the defendant in that bill, under rule 66, might have obtained an order, as of course, for a dismissal of the suit for this reason. The motion of plaintiffs to dismiss their bill is granted, and the same will be dismissed at their costs. The mo- tion of plaintiffs in the cross-bill for a decree pro con- fesso thereon against the defendants therein named is denied. If the defendants in the cross-bill had been served with process, or had voluntarily entered their ap- pearance in the cross-bill, the plaintiffs therein would have been entitled to a decree pro confesso after the lapse of the time allowed defendants by the rules to answer. The bill and cross-bill in equity do not necessarily con- stitute one suit, and, according to the established prac- tice in equity, the service of a subpoena on the defend- ants in the cross-bill, although they are parties in the original bill, and in court for all the purposes of the orig- inal bill, is necessary to bring them into court on the CROSS-BILiiS 201 oross-bill, unless they voluntarily enter their appearance thereto, which is the usual practice. And the general chancery rule is that service of the subpoena in chancery to answer a cross-bill cannot be made upon the solicitor of the plaintiff in the original bill. 1 Hoff. Ch. Prac. 355, and note 4. In the chancery practice of the circuit courts of the United States there are two exceptions to this rule — (1) in case of injunctions to stay proceedings at law, and (2) in cross-suits in equity where the plaintiff at law in the first and the plaintiff in equity in the second case reside beyond the jurisdiction of the court. In these cases, to prevent a failure of justice, the court will order service of the subpoena to be made upon the attorney of the plaintiff in the suit at law in the one case, and upon his solicitor in the suit in equity in the other. Eckert v. Bauert, 4 Wash. 370; Ward v. Sebring, id. 472; Dunn v. Clark, 8 Pet. 1. And for application of analogous prin- ciples to parties to cross-bills, see Schenck v. Peay, Woolw. 175. It not unfrequently occurs that the facts constituting defendant's defenses to an action or judgment of law are of a character solely cognizable in equity, and in suits in equity it often happens that the defendant can only avail himself fully and successfully of his defense to the action through the medium of a cross-bill. In suits in these courts the plaintiff is usually a citizen of another state, and hence beyond the jurisdiction of the court, and in such cases defendants who desire to enjoin proceedings at law, and defendants in equity cases who desire to defend by means of a cross-bill, would, but for this rule of practice, be practically cut off from their de- fenses by reason of their inability to make service on the plaintiff in the action. It would be in the highest degree unjust and oppressive to permit a non-resident plaintiff to invoke the jurisdiction of the court in his favor, and obtain and retain, as the fruits of that jurisdiction, a 202 LOWENSTEIN V. GLIDBWELIi judgment or decree to which he was not in equity entitled by remaining beyond the jurisdiction of the court whose jurisdiction on the very subject-matter, and against the very party, he had himself first invoked. The reason of the rule would seem to limit it in equity cases to cross- bills either wholly or partially defensive in their char- acter, and to deny its application to cross-bills setting up facts not alleged in the original bill, and which new facts, though they relate as they must to the subject-matter of the original bill, are made the basis of the affirmative re- lief asked. The cross-bill in this case is of this latter character, and without deciding that this fact alone would preclude the court from directing service of the subpoena on the solicitors of the plaintiffs in the orig- inal bill, such an order will not be made after plaintiffs have filed their motion to dismiss their bill — a motion grantable as of course. Whether the dismissal of the original bill carries with it the cross-bill depends on the character of the latter. If the cross-bill sets up matters purely defensive to the original bill and prays for no affirmative relief, the dis- missal of the latter necessarily disposes of the former. But where the cross-bill sets up, as it may, additional facts not alleged in the original bill relating to the sub- ject-matter, and prays for affirmative relief against the plaintiffs in the original bill in the case thus made, the dismissal of the original bill does not dispose of the cross-bill, but it remains for disposition in the same man- ner as if it had been filed as an original bill. Warrell v. Wade, 17 la. 96; 2 Daniel's Ch. Prac. 1556. The cross-bill in this case is of this character and it will remain on the docket, and the plaintiffs therein can take such action in relation thereto as they may be ad- vised, but no steps can be taken in the case until defend- ants are brought into court. XV AMENDMENTS 58. PAEKHUEST v. KINSMAN 2 Blatchford, 72 Betts, J. : Application for leave to file a supplemen- tal bill making Goddard a party and adding new charges against Kinsman, based partly on recent facts and partly on newly-discovered evidence. Notice havingl been served on Kinsman and Goddard, both opposed the application on grounds that will appear sufficiently in the opinion of the court. The original bill was founded on an agreement between the plaintiff and Kinsman, which, upon certain conditions, gave to the latter the right to use the former's patent. There had been a provisional injunction, however, forbidding any further making or selling of the machines. It seemed to be supposed on the argument, by the counsel for the defendant, that the supreme court in requiring, by rule 57, notice to be given on an application for leave to file a supplemental bill, had put the petition upon the footing of the bill itself when filed, and that the application could be defeated by showing that the petition did not make a case establishing the propriety of the bill, and the legal liability of the party sought to be brought in, to the remedy sought by the suit. Such, how- ever, is not the effect of the rule. It does not essentially change the practice as it before existed. In England and in this state supplemental bills were allowed to be filed only by leave of the court (Dan. Ch. Pr. 1655, Am. ed., and notes ; Eager v. Price, 2 Paige, 333 ; LaA^o-ence V. Bolton, 3 id. 294) ; and the court, in addition, fre- 203 204 PABKHUEST V. KINSMAN quently ordered notice to be given of the application. Eager v. Price, 2 Paige, 333. Tlie design of notice is to avoid precipitation and a needless accumulation of pleadings. But the court inquires no further than to see whether probable cause exists for the new proceeding. The petition, accordingly, need not embrace the aver- ments intended to be inserted in the supplemental bill, but need only advise the opposite party and the court of the ground on which the relief is applied for. The court may, therefore, deny leave to file a supplemental bill, and yet permit an amendment of the original bill ; and this abihty to shape and abridge the pleadings may be the reason of the practice which requires the assent of the court to the filing of a supplemental bill. In my opinion, then, all that the court looks to on motions of this description is to see that the plaintiff states facts or circumstances which, if properly pleaded, would sus- tain a supplemental bill. The allegations in the petition in regard to Goddard would undoubtedly be insufficient as averments in a sup- plemental bill, but they embrace matters which, if well pleaded, may charge him as a party to the suit. The court will not decide this motion on the technical rules applicable to a demurrer. The petition is sufficiently definite in charging that Groddard has become connected with the subject-matter of the suit against Kinsman since the original bill was filed, and is, in that connection, doing those acts in relation to the interests of the plain- tiff which this court, by injunction, has restrained Kins- man from doing; and that is, in substance, sufficient according to all the authorities, to authorize the plain- tiff to bring Goddard before the court in the same suit to answer for his proceedings. On these points the plaintiff is entitled to a discovery from Goddard. It is a mistake to construe the petition as setting up, as the ground of complaint, an independent infringement by Goddard of the plaintiff's rights under his patent. Its AMENDMENTS 205 I bearing and manifest intent is to charge on Goddard a combination with Kinsman, and an acting in concert with Mm to defeat the right the plaintiff has to restrain Kinsman on the equities of the original bill. It is enough, on this motion, to allege such concert and com- bination on information and belief, whether such a charge would or would not be sufacient in the bill itself. The leave prayed for must, therefore, be granted in respect to Goddard. Most of the matters sought to be inserted in the sup- plemental bill in respect to Kinsman would be proper subjects of amendment to the original bill, and could not lay the foundation for a supplemental bill. 1 Hoff. Ch. Pr. 393, 398; Story's Eq. PL, Sec. 333. But, as a dis- covery is sought from Kinsman in regard to particulars not stated in the original bill, and an answer to that has been already put in by him, the course of practice will justify the filing of a new bill. Mitf. PL 62, 3d Amer. ed. 99, and note. The laches imputed to the plaintiff, in not pushing forward his suit since Eansman's plea and answer were put in, might perhaps call for a fuller excuse, before the court would allow the plaintiff to change the issues by amending the original bill. Even then, however, the objection would not stand upon the ground of any essen- tial injury to the defendant to arise from permitting such amendment, for it is not shown that any proofs have been taken by either party under the issues, or that the defendant has availed himself of his privilege under our practice of speeding the cause. But a supple- mental bill may be filed at any stage of a cause, even after decree rendered (Story's Eq. PL, Sec. 338), and the nature of the present litigation would induce the court to lend all reasonable aid to have every dispute between the parties in respect to their rights as involved in it defi- nitely settled, and to leave nothing to be called up and pursued hereafter. Upon these considerations I shall 206 PENNSYLVANIA STEEL CO. V. NEW YORK CITY ET. CO. authorize the supplemental bill to be filed as prayed for, with the insertion, as against Kinsman, of the allegations referred to in the petition, and which might not, if brought forward by themselves, justify more than an order for amendment. 59. PENNSYLVANIA STEEL CO. v. NEW YORK CITY BY. CO. 190 Fed. Rep. 603 Lacombe, Ciecuit Judge: The petition sought to be amended is the one verified October 10, 1910, upon which (with others) the special master was instructed to pass upon certain questions arising, on a branch of the case, known as the "appropriation of payment" proceeding, the answers to which would determine how certain mon- eys paid in settlement of litigations prosecuted by the receiver of the New York City Railway Company should be apportioned between the litigations which were ter- minated by such payment; and also some questions of lien or rights to share in the moneys so appropriated. The theory of the application is that there is an apparent discrepancy between the proofs and the aver- ments of the petition as to the amount of the balance of account between the two estates (New York City Rail- way and Metropolitan Street Railway) . Such an applica- tion is unnecessary. The court always has power to con- form pleadings to proof. Whether there is such a discrep- ancy between the two as requires such an amendment can be intelligently decided only by the tribunal which is fully informed as to the proofs. In the first instance such tribunal is the special master. It is stated in argu- ment that, although he received all the proof offered, he expressed some doubt as to his power to allow the amendment prayed for. It is not necessary to determine AMENDMENTS 207 ■whether or not, under the terms of the order which sent the controversy to him, he had such power. An excep- tion to his refusal to allow the amendment will bring the matter before the circuit judge when the report comes up for confirmation and, having indisputably the power to conform pleadings to proof, the judge can adminis- ter full relief, if any be required. The claim which petitioners ask to amend is the one filed February, 1910, by receivers of the Metropolitan Street Eailway Company against New York City Rail- way Company for moneys alleged to be due by reason of the breach of the agreement of May 22, 1907, between the two companies. The proposed amendment would increase the claim against the New York City Company about $1,500,000. It was conceded upon the argument that if the proceeding now under advisement before the special master — the ' ' appropriation of payment proceed- ing" — ^is decided one way, it would be wholly unneces- sary to amend the claim. The application would there- fore seem to be premature. It is contended that the claim as it stands is relied upon by other parties as an admission of the condition of the mutual accounts between the two companies which may operate to the dis- advantage of petitioners. The contention is not per- suasive. All that the "claim" evidences is that on the day it was filed the receivers of the Metropolitan were satisfied, upon such investigation as they had then made, that the accoimts between the two roads showed the bal- ance which they stated. No amount of amendment can change the effect of that admission, viz., that such was their understanding at that time of the state of the ac- count. If the proofs should show that they were mis- taken, their "admission" evidenced by fifing the claim would not control, the decision would be conformed to the facts, not to their past conception of what they were. Of course, the question would then remain whether they should be allowed to amend the claim by asking for this 208 SOUTH CHICAGO BREW. CO. V. TAYLOR large additional sum, so long after the date fixed for fil- ing claims ; but that is a distinct question, which need not be decided now, since the decision of the special master in the proceeding now submitted to him may make it academic. Motion denied. 60. SOUTH CHICAGO B^EW. CO v. TAYLOR V 205 III. 132 Me. Justice Caetwbight: After the evidence was taken, the appellee obtained leave of court to amend her petition without prejudice to the defaults, proceedings and proofs in the case, and amended the petition on July 14, 1902, by setting up the possession of James H. Bowen before the Chicago fire, and claiming ownership by vir- tue of his possession and the complete chain of title to her, independently of her chain of title from the govern- ment under the patent to Ash Kum. To the petition as amended, appellant filed an answer, not confined to the amendment or defenses to it, but again covering the whole case, and again setting forth its alleged title by the deed from Eudolph Brand and the tax title, with posses- sion and payment of taxes. Appellee moved to strike this amended answer from the files, but the court permitted it to stand, and the replication previously filed was al- lowed to stand to such amended answer. After the decree was entered, appellant moved the court to set it aside and for a rehearing, to enable it to introduce further evidence material to the issue in the case. There was no showing what the evidence was, whom it was expected to prove it by, or that there had been any diligence in obtaining and producing it. The motion was a general request to open the case, based on the fact that there had been an amendment to the AMENDMENTS 209 petition, and an answer thereto, after the testimony was taken before the master. The amendment to the answer was filed July 14, 1902, and the decree was on February 25, 1903. During the intervening period there was no attempt to take any new testimony. The amendment was proper, since a complainant must recover on the case made by his bill, and appellant had a right to answer and contest the case on which appellee claimed relief. (Adams V. Gill, 158 111. 190.) It was also proper to allow the amendment after the proofs were taken, so that the alle- gations and proofs might correspond. The regular and proper course upon an amendment is for the court to set aside the defaults, but, whether there is such an order or not, an amendment to a bill virtually sets the default aside. (Gibson v. Eees, 50 111. 383; Lyndon v. Lyndon, 69 id. 43. ) Appellant is nqMnterested in any question as to the effect of the amendment or the setting aside of defaults as to other parties. It was entitled to answer the new claim stated in the amended petition. The amended answer was proper so far as it answered the amendment to the bill and alleged any matter of defense thereto. So far as appellee was concerned, the amend- ment made her petition conform to proofs already taken. On the reference before 't^& master several witnesses were produced and examined by appellee as to the pos- session of Bowen, and they were cross-examined by the appellant. When the amendment was made setting up the facts proved by such witnesses, if the appellant had any evidence that Bowen was not in possession it should have moved with reasonable diligence in procuring and offering such evidence. It not only did not do so, but did not show that it had any evidence of that character. The court was not called upon to re-open the case and con- tinue it under those circumstances. The decree of the superior court is affirmed, except so far as it requires appellant to pay costs and sets off moneys due it against such costs, and the cause is re- E. P. C. — 14 210 SOUTH CHICAGO BBEW. CO. V. TATLOE manded to that court, with, directions to amend the de- cree so as to require the payment of all costs by appellee and the payment to appellant of the amount due for taxes and interest. Affirmed in part and remanded. (Part of opinion omitted.) XVI EVIDENCE IN CHANCERY 61. KOCH V.ARNOLD 242 III. 208 Justice Dunn: This appeal is from a decree of the superior court of Cook county setting aside a tax deed and raises only the question of the sufficiency of the re- citals of the decree to sustain it, the record containing no certificate of the evidence. The bill alleged that the complainant was the owner and in possession of the premises. The answer denied this allegation, and the decree finds that the complain- ant was at the time of the commencement of the suit, since then has remained, and now is, the owner of the premises and at the commencement of the suit was in the actual and exclusive possession thereof. It is insisted that the findi ng that the complai nant is the owner of_ ^e preTnises is not sufficient because it is merely a conclu - sion of law and not the finding of a specific fac t. It is necessary to the validity of a decree granting relief that the record shall show the facts warranting the decree. It is not, however, necessary that all the evidence by which the facts were proved should be set forth in the record. If it appears that the court, from the evidence before it, found the ultimate facts justifying the relief granted, it is sufficient. The decree need not recite sub- siduary or evidentiary facts tending merely to sustain the ultimate conclusion of fact upon which the decree is founded. A general finding of the fact is enough, and it is not necessary to find minutely all the circumstances tending to sustain the general finding, for these circum- stances are matters of evidence only. Almost any state- 211 212 KOCH V. AENOLt) ment of fact may be shown by a refined analysis to de- pend upon an inference to be drawn from other facts and to require the application of legal rules in making the de- duction. Besides ownership may be cited marriage, resi- dence, possession, partnership, assessment, delivery, and many other acts, relations or conditions, as examples of a complex fact, the finding of which may require the con- sideration of few or many subordinate facts and the ap- plication of legal principles to their consideration, but the final conclusion reached as an inference of fact drawn from all the circumstances is a fact within the meaning of the rule requiring the facts sustaining a decree to appear of record. Decisions of courts holding that it is not competent for a witness to testify to the fact of ownership, indebtedness or other ultimate fact are not in point, for that ultimate fact is the conclusion of fact to be drawn by the jury or court trying the issue, and wit- nesses may testify only to the facts within their personal knowledge, and are no more permitted to state their in- ference of facts than to testify to their conclusions of law. The decree found "that the application and affidavits on which said tax deed was issued wholly fails and neg- lects to show whether the said premises were improved and occupied and in possession of some person during the two months next preceding the last three months prior to the expiration of the time of redemption from the sale in the said certificate of tax sale, and if the said premises were occupied during that time the said occu- pants should have been personally served with a notice of said tax sale." It is insisted that this finding is in- sufficient, because the application may, nevertheless, have shown that the premises were, during the period men- tioned, vacant and unoccupied. The statute provides that no person shall be entitled to a deed for lands sold for taxes unless he shall have served notice of the sale at least three months before the expiration of the time EVIDENCE IN CHANCERY 213 of redemption upon every person in the actual possession or occupancy of such land and shall also have filed an affidavit showing a compliance with this requirement. The finding that the affidavit failed to show whether the said premises were improved and occupied and in pos- session of some person is a finding that it failed to show a compliance with the requirements of the statute. It could not show a notice served on every person in the possession or occupancy of the land without showing whether the premises were occupied and in possession of some one, nor could it have shown that the premises were vacant and unoccupied without showing whether they were occupied and in possession of some one. This find- ing is awkwardly expressed, but it is, in substance, a sufficient finding that the affidavit did not state either ^hat said premises were occupied or were vacant and un- occupied. It was therefore insufficient to authorize the execution of the tax deed. Objection is made to the sufficiency of other findings, but they become immaterial in view of what has been said in regard to the two which have been considered. The decree of the superior court is affirmed. 62. BLEASE v. OARLINGTON 92 U. 8. 1 CniEr Justice Waite : Upon the hearing in the court below, after the plaintiff had submitted his case upon the pleadings and his mortgage, the defendant presented himself as a witness to be examined orally in open court, and proposed to testify to the following facts, to wit: "1. That one of the conditions of the original agree- ment for the sale of the liability of Eobert Stuart, as one of the sureties on the bond of J. B. O'Neall, as guardian 214 BLBASE V. GABLINGTON of J. M. Young, plaintiff's intestate, to the defendant, was that the plaintiff should obtain judgment against the said R. Stuart; and that, when the agreement waa drawn up and presented to the defendant, he called at- tention of plaintiff to the fact that that part of the agree- ment which obligated him to get judgment had been left out, and insisted that it should be inserted ; and he was assured that that condition should be carried out, and that it was not necessary to rewrite the agreement for the purpose of putting it in. "2. That, during the negotiations for the sale of the aforesaid liability of R. Stuart, the plaintiff represented to the defendant that said liability or claim was worth at least $6,000 ; and that, in fact, it is not worth $2,500. "3. That the defendant did not know the then finan- cial condition of R. Stuart, and put implicit confidence in the promises and representations of the plaintiff, and would not have made the trade but for such assurance." His proposition, made in writing, is sent here as part of the record. The court refused to receive the testi- mony, and it was not taken. A decree having been en- tered in favor of Garlington, Blease brings the case here by appeal. f Cases in equity come here from the circuit courts, and the district courts sitting as circuit courts, by appeal, and not by writ of error. Rev. Stat., sec. 692. They are heard upon the proofs sent up with the record from the court below. No new evidence can be received here. Rev. Stat., sec. 698. ^The facts relied upon by Blease were neither proved nor admitted in the court below. Testimony in support of them was offered ; but it was not received. We do not know, that, if it had been received, it would have been suflScient. If we find that the court erred in refusing the testimony, we shall be compelled to affirm the decree be- EVIDENCE IN CHANCERY 215 cause of the lack of proof, or send the case back for a new hearing. An important question of practice is thus presented for our consideration. Since the amendment of rule 67, in 1861, there could never have been any difficulty in bringing a case here upon appeal, so as to save all exceptions as to the form or substance of the testimony, and still leave us in a condition to proceed to a final determination of the cause, "whatever might be our rulings upon the exceptions. The examiner before whom the witnesses are orally examined is required to note exceptions ; but he cannot decide upon their validity. He must take down all the examination in writing, and send it to the court with the objections noted. So, too, when depositions are taken according to the acts of Congress or otherwise, under the rules, ex- ceptions to the testimony may be noted by the officer taking the deposition, but he is not permitted to decide upon them; and when the testimony is reduced to writ- ing by the examiner, or the deposition, is filed in court, further exceptions may be there taken. Thus both the ex- ceptions and the testimony objected to are all before the court below, and come here upon the appeal as part of the record and proceedings there. If we reverse the ruling of that court upon the exceptions, we may still proceed to the hearing, because we have in our posses- sion and can consider the rejected testimony. But under the practice adopted in this case, if the exceptions sus- tained below are overruled here, we must remand the cause in order that the proof may be taken. That was done in Conn, et al. v. Penn., supra, which was decided before the promulgation of the rules. One of the objects of the rule, in its present form, was to prevent the ne- cessity for any such practice. While, therefore, we do not say, that, even since the Revised Statutes, the 6ircuit courts may not in their dis- cretion, under the operation of the rules, permit the ex- 216 BLEASE V. GABLINGTON amination of witnesses orally in open court upon the hearing of cases in equity, we do say that now they are not by law required to do so ; and that, if such practice is adopted in any case, the testimony presented in that form must be taken down or its substance stated in writ- ing, and made part of the record, or it will be entirely disregarded here on an appeal. So, too, if testimony is objected to and ruled out, it must still be sent here with the record, subject to the objection, or the ruling will not be considered by us. As case will not be sent back to have the rejected testimony taken, even though we might, on examination, be of the opinion that the objection to it ought not to have been sustained. Ample provision hav- ing been made by the rules for taking the testimony and saving exceptions, parties, if they prefer to adopt some other mode of presenting their case, must be careful to see that it conforms in other respects to the established practice of the court. The act of 1872 (17 Stat. 197, Eev. Stat., sec. 914) pro- viding that the practice, pleadings, and forms and modes of proceeding, in civil causes in the circuit and district courts, shall conform, as near as may be, to the practice, &c., in the courts of the states, has no application to this case, because it is in equity, and equity and admiralty causes are in express terms excepted from the operation of that act. ■^ We might, therefore, afi&rm the decree below, because there is no testimony before us in support of the de- fense ; but, if we waive this question of practice, — which, on account of its importance, and the misapprehension that exists in respect to it in some of the circuits, we have thought it proper at some length to consider and de- termine, — and look to the merits of the case, we find no error. \ (Note: Parts of this case omitted.) EVIDENCE IN CHANCERY 217 63. FAYERWEATHER v. RITCH 89 Fed. Rep. 529 Justice Lacombb : P ersonally I d o not th ink that th e testimony objected to is relevant under the iasi i gs raised b;y the plea; but it is evident that complainants' counsel is of a different opinion, since he is putting his clients to considerable expense in putting it in. It may be that he could persuade the appellate court to take his view of the issues; and if so, under the rule adopted by the supreme court, and construed in Blease v. Garlington, 92 U. S. 1, the testimony, although the judge of first instance deems it irrelevant, should be incorporated inthe record. It does not seem, therefore, that this motion should be granted. The co ntinued taking of this t estim ony woiij d Ijje. a hfirdship \(\ defpudant, were it not that complainant has offered to stipulate that opposing counsel need not attend to register objections and reserve objections to the testimony, but may raise such objections after the testimony is taken, and before the record is made up for argument. This certainly makes the archaic, cumber- some and unsatisfactory method of taking testimony in equity in the federal courts as little of a burden to de- fendants as it can be made. In view of the decision in Blease v. Garlington, supra, this court seems powerless to afford any greater measure of relief. The proffered stipulation is approved, and motion denied. 64. CROCKET v. LEE 7 Wheat. 522 Chiep JtrsTicE Mabshall: The testimony which has been taken in these causes, certainly is very strong in support of the decrees of the circuit court ; but the coun- 218 CEOCKET V. LEE sel for the appellant contends that so mnch of this testi- mony as respects the vagueness of Cameron's location must be disregarded, because neither its vagueness nor its certainty has been put in issue. Lee has not averred in his bill, nor alleged in his answer, that this location is vague, nor has he anywhere, or in any manner, ques- tioned its validity. The principle advanced by the appellant's counsel cannot be controverted. No rule is better settled than that the decree must conform to the allegations, as well ^ to the proofs in the cause. The location being set out in the pleadings, the court can undoubtedly notice any intrinsic apparent defect. If it be void in itself, no tes- timony can sustain it, and it would be deemed void on a demurrer to the bill. But if it be not void in itself, if its validity depends upon facts to be proved in the cause, then its validity ought to be put in issue. The counsel for the appellee does not directly contro- vert this principle, but endeavors to withdraw his case from its operation, by contending that terms are used in the pleadings which are equivalent to a direct allega- tion that Cameron's location is too vague to be sustained. If in this he is correct, the consequence he draws from it will be admitted; for it will certainly be sufficient, if the matter to be proved be substantially alleged in the proceedings. How, then, is the fact? In his answer to Crocket's bill, he says that he does not "admit that the survey has been made agreeable to location or to law." This allegation certainly questions the survey. If it vary from the entry, if it be chargeable with any fatal irregularity, if it be in any respect contrary to law, such defects may be shown, and the party may avail himself of it to the extent justified by his testimony, and by the law. But this allegation is confined to the survey. It does not mount up to the location, nor does it draw that EVIDENCE IN CHANCERY 219 into question. It gives no notice to Crocket that Ms entry was to be controverted. The bill filed by Lee is equally defective in this respect. After setting out his own title, he states that of his ad- versary; and, after reciting the certificate granted to Cameron, subjoins that Crocket claimed the land "in dis- pute by virtue of the said improvement, and having caused the same to be surveyed contrary to location, and to law, and was to interfere with" his (Lee's) claims, had obtained a prior patent, &c. This allegation, like that in the answer, draws into question only the survey. It does not controvert the loca- tion or entry. The counsel for appellant says it would be monstrous, if, after the parties had gone to trial on the validity of the entry, and have directed all their testimony in the circuit court to that point, their rights should be made to depend in the appellate court on a mere defect in the pleadings, which had entirely escaped their observation in the court where it might have been amended, and the non-existence of which would not have varied the case. The hardships of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery — rules which have been established for ages, on the soundest and clearest principles of gen- eral utility. If the pleadings in the cause were to give no notice to the parties or to the court of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited; if a new case might be made out in proof, differing from that stated in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the de- cree must conform to the allegations, as well as to the proofs of the parties, is not only one which justice re- quires, but one which necessity imposes on courts. We 220 -WILLIAM S. MOSS V. LOXHSA. MCCALL ET AL. cannot dispense with it in this case. But although the entry is not put in issue, the survey is; and if that be made on ground not covered by any part of the entry, the decrees would, on that account, be affirmed. It must at once occur that in a case where the entry is in reahty attended with much uncertainty, there will be some difficulty in shoAving how much a survey varies from it, unless the survey be made on land entirely different from the entry. That does not appear to be the fact in the present case. Cameron's entry calls for the head right-hand fork of Welles' branch, for the head of a small run that empties into the north fork, and to lie about one and a half miles above the war-path that crosses the north fork. The survey is upon the head waters of these streams, and lies a small distance above the war-path that crosses the north fork. There is rea- son to believe, that, were the location to be sustained, the survey would be found to conform to it in part, though not, perhaps, entirely. This court has no means of ascertaining how far they agree, and how far they dis- agree, and the decrees of the circuit court must be re- versed. But as this reversal is not on the merits of the case, and the court is rather inclined to the opinion that the decrees on the merits are right, no final decree will be directed in either cause, but each will be remanded to the circuit court, with directions to permit the parties to amend their pleadings. 65. WILLIAM S. MOSS v. LOUISA McCALL ET AL. 75 III. 190 Justice Scott : We have examined the case with that care its magnitude and importance demand, but we are unable to determine from the record whether the decree EVIDENCE IN CHANCERY 221 does justice between the parties. It rests solely upon the assumption that it was proven there was a subsequent agreement with the several partners that each should be charged with interest upon the items of his individual ac- count, and should be credited with interest upon all moneys paid in. Even upon this theory of the case we cannot know that the decree is warranted by the evi- dence. The cause was not referred to a master, but the decree seems to be based on a computation made by one witness, assisted by others who undertook to balance the books. What principle he adopted, or how he made the calculations, does not appear from anything in the record. The court did not find that any agreement to pay in- terest, such as is insisted upon, was proven, and we do not find any satisfactory evidence of it in the record. No interest account was kept during the time the firms of Moss, Bradley & Co. did business, but long after those firms ceased to carry on business, Bradley under- took to have the books balanced. He died before this bill was filed, but there is some testimony to the effect he directed the book keeper to charge and credit the in- dividual accounts of the partners with interest. What he may have said to the book keeper on this subject could in no way bind Moss. The firms had then ceased to do business, and Moss was absent from the state. We fail to discover any evidence in the present record that Moss ever agreed to the arrangement contended for, to allow interest upon each partner's individual account. There is no certificate of evidence in this record, but it is suggested there may have been other eAT.dence that would support the decree. The practice has made it in- cumbent on a party seeking to sustain a decree in his favor, to preserve the evidence on which it is based, either in a certificate under the hand and seal of the judge who heard the cause, or in the decree itself. Com- plainants in this case have done neither. Evidence con- tained in depositions on file, form a part of the record, 222 ESLAVA V. MA2ANGE without any certificate of the judge for that purpose. The same rule prevails as to exhibits made part of the bill or answer, filed therewith, and the court will pre- sume they were considered on the hearing. Bressler v. McCune, 56 111. 475. This record contains all the evidence that appears to have been heard in the court below. If it does not, it was the duty of the party in whose favor the decree was, to preserve what other evidence there was in some appropri- ate manner. The rule on this subject was stated in Brooks et al. v. Martin et al., 64 111. 389, where it was held that if the record does not contain all the evidence heard in the cause, it is for the party complaining of such omission to supply it. Part of above opinion not in point, omitted. 66. ESLAVA v. MAZANGE 1 Woods 623-627. 1871 Bradley, J. : Statement op Facts : The bill is filed in this case to subject certain property, conveyed by the complainant to Ovid Mazange many years since, to a parol trust, in favor of the complainant, on which, as he alleges, the conveyance was made. The Bank of Mobile is made defendant because it has an execution against Eslava, which has been levied on the property in ques- tion. On filing the bill and before issuing the subpoena, the complainant obtained an order to examine himself and his wife as to any transactions with or statements by Ovid Mazange, deceased, upon interrogatories to be served on the parties to the suit, or upon notice to them, before some commissioner of the United States, The rule suggests that Eslava and his wife are aged and in- firm, and reside in New Orleans. As soon as issue was joined in the cause, the defend- EVIDENCE IN CHANCERY 223 ants gave notice to the complainant tliat they desired the testimony in the case should be taken orally, under the sixty-seventh rule of the court, and soon after filed writ- ten objections to taking the testimony of the plaintiff and his wife on the grounds, amongst others, that the complainant was not a competent witness in the case (Mazange being dead), and that the wife could not be a witness for her husband. The complainant's counsel, nevertheless, after this, proceeded to file and serve in- terrogatories with a view to examine the complainant and his wife on conamission. The defendants filed cross- interrogatories under protest. The examination hav- ing been taken and the depositions returned, the defend- ants at the last term moved to suppress the same. The motion, not being disposed of, is now repeated. One ground of the motion is, that the complainant and his wife are not competent witnesses in the case. In general, the competency of witnesses in the United States courts in civil cases is governed by the law of the state in which the court is held. Such was the rule en- acted by the statute of July 6, 1862 (12 Stat. 588). But Congress has specially regulated the subject now be- fore the court. By the act of July 2, 1864 (13 Stat. 351), it was declared, amongst other things, that there should be no exclusion of any witness in the federal courts be- cause he was a party to, or interested in, the issue tried. This act was modified by that of March 3, 1865 (13 Stat. 533), by which it was enacted that in actions by or against executors, administrators or guardians, neither party should be allowed to testify against the other as to any transactions with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. This act is a recognition of the glaring injustice it would in- volve, to permit one party to propound himself as a wit- ness in his own behalf as to a transaction between him and a deceased person, who can no longer give his ver- 224 ESIiAVA V. MAZANGE sion of tlie affair. If the law were to allow a man to wait until his antagonist were dead, and then to sue his heirs, and put himself upon the witness-stand and give his version of the affair, with no one to contradict or qualify his testimony, it would be as gross a prostitution of the forms of law, as to allow a man to be judge in his own cause. Every honest mind revolts against it. There may be special cases, it is true, in which the court can see that no injustice would be done by calling on a party to testify, even though his adversary be deceased. But it is useless to attempt to anticipate such cases. When they arise it will be for the court, and not the party himself, to suggest that he be called. Or, if he make the suggestion, the other party ought at least to be heard upon it. It is claimed in this case that the court has made an order to take the testimony. But how was it made? It was an ex parte order taken before the defendants were subpoenied to appear in the cause. When the statute authorizes such testimony to be taken if "reqiiired by the court," it does not refer to such a requirement or order as that which was made in this case. If an ex parte order can be got in this way, the statute would be practically abrogated. The reservation of power in the court to require the evidence to be taken was made in order to provide for such extreme and special cases as might arise, in which it would be a great hardship not to take it. The court will exercise this power with great care and caution. This case is one in which it would be eminently im- proper to allow the evidence. The complainant seeks to set up a parol trust in property conveyed away by him over twenty years ago, and possessed by the grantee and his assigns ever since. It would be most dangerous to allow a party to prove his own case under such circum- stances, after his grantee was dead. Whether it is prov- BVIBENCE IN CHANCERY 225 able at all is another question, not now before the court. But no man's property would be safe under such a rule of evidence. Of course, the wife is incompetent to testify for or against her husband. The fact that the Bank of Mobile has filed a cross-bill in the case can make no difference. The order to examine the parties is taken on behalf of the complainant, not on behalf of the bank, and, if it were taken on behalf of the bank, it would not help the case. The bank is not the "opposite party" referred to in the act who is author- ized to call the plaintiff as a witness. The "opposite" party meant is that party against whom the evidence is sought to be used. The interests of the complainant and of the bank in the matter are the same. The testimony is clearly incompetent and must be disallowed, and the depositions suppressed. It is urged that the witnesses were old and infirm, and, therefore, that the order to take their testimony was strictly regular under the seventieth rule in equity. That rule was not originally intended for the examina- tion of a party ; and it may be questioned whether, under any circumstances, it ought to be extended to the case of a party propounding himself as a witness. But it cer- tainly cannot legahze testimony taken as the plaintiff's has been taken in this case. It may also be urged that the order for taking the testimony must stand until it is regularly discharged. It is undoubtedly the general rule that, after the close of the term in which an order is made, it stands until it is regularly discharged. But orders obtained upon motion may be dieharged upon motion; and a fortiori, orders obtained ex parte may be thus discharged which have never been assented to, but always resisted by the other party; and a motion to suppress depositions fairly brings up the regularity of an ex parte order directing them to be taken, as well as the competency of the wit- nesses examined, if the party moving to suppress has E. p. C. — 15 226 LATHROP ET AL. V. BRAMHALL never done anything to waive the objection. From an examination of the minutes and files in this case, I am satisfied that the defendants have taken every oppor- tunity fairly in their power to express their opposition to the testimony of these parties, as well as to the taking of it by deposition. The motion to suppress the depositions will be granted ; but, as they were taken under ar order of the court, though an irregular order, the cause will be continued until the next term and the time for taking testimony enlarged until the rule day in September, to enable the complainant to take other testimony in the cause, with like liberty to the defendants. 67. LATHEOP ET AL. v. BRAMHALL 64 N. Y. 365 MiLLEE, J. : Upon the trial of this action the defend- ants ' counsel objected to the admission of certain evi- dence offered by the plaintiffs, and the decision of the referee was reserved in several instances until the close of the plaintiff's evidence, when the referee proceeded to dispose of the objections to the admission of testi- mony, the rulings on which had been reserved. He re- fused to decide as to the persons affected by some por- tions of the evidence, holding that these questions could only be determined when the whole evidence was iu, and, to the extent named, overruled the objections made by the defendants' counsel, who insisted that they were en- titled to an absolute ruling upon the several questions, which the referee refused to give, and excepted to his several decisions thus made. Upon one of the rulings of the referee reserving his decision, defendants ' counsel excepted to the reservation. In the subsequent stages of the case the referee made similar rulings, declining to de- EVIDENCE nsr CHANCEET 227 eide against whieli defendant the evidence was allowed ; and, at the close of the entire testimony, he declined to decide any of the questions thus reserved, stating that this would be determined on the decision of the case. Without enumerating the various rulings of the referee upon the questions stated, it is sufficient to say that he, among other decisions, refused to rule whether a memorandum received in evidence, the admission of which will be hereafter particularly considered, should be regarded as evidence against the defendant Bramhall alone, or against all or any of the other defendants. He made the same reservation until the close of the testi- mony upon the question raised whether the acts or dec- larations of Clews were binding on the defendants other than the firm of which he was a member, also in respect to whether the letters written by Clews, and introduced upon the trial, were evidence. The evidence which was thus adtoitted conditionally and in regard to which the referee reserved his decision, affected the most important issues in the case, and the principal question involved, which was the hability of all of the defendants for the iudebtedness, to recover which the action was brought. If the evidence tended to show the liability of any one of the parties, it would be to that extent entirely competent. Whether it affected more than a single one, or all of them, could not well be determined at the time when the testimony was intro- duced, and might depend upon evidence which was subse- quently given which tended to establish the liability of tiie defendants. It cannot always be decided at the mo- ment when such testimony is offered as to what effect it may have, and when this cannot be done, there is no ob- jection to a reservation of the decision for the time being. Some discretion must be allowed to the judge or referee ia regard to questions of this kind. Where the trial is before a, jury in open court, there would be an eminent propriety in a decision by the judge as to the applicabil- 228 LATHEOP ET AL. V. BRAMHALL ity of sueli evidence before tlie case is finally submitted to their consideration; and then lie should determine as to its effect in respect to any particular party, and give proper instructions in regard to it upon being requested to do so. (See Raymond v. Howland, 17 "Wend., 389.) Under such circumstances, it is not apparent how the rights of the parties could be seriously affected by the reservation of the judge 's decision. Upon a trial before a referee, there appears to be far less urgent necessity for the decision of questions of this character, even at the close of the case. As he takes the place of the jury, he is to balance the testimony and decide where the weight lies ; and in so doing, must determine to what ex- tent the evidence thus objected to bears upon the differ- ent parties. He can make a proper discrimination as to how far it affects one or more of the parties in most cases ; and if this can be done, no injury can result from such a course of procedure. It is not apparent in the case before us how the defendants' interest could have been affected injuriously by the action of the referee, or their rights in any way impaired; and unless such was the case, no rule of law has been violated, and there is no legal error which will justify a reversal of the judg- ment. An important distinction exists between the reserva- tion of the question as to the effect of evidence and a res- ervation as to its admissibility, and the question arises and is directly presented by one or more of the decisions of the referee, whether the party who raises an objec- tion to evidence offered by his adversary has a right to have such objection passed upon absolutely at the time when it is presented, and whether the refusal to do so is erroneous. We have been referred to a number of de- cisions, mostly in the supreme court, which are supposed to uphold the doctrine contended for. Although the mar- ginal notes of these cases, and the dicta of some of the judges appear to sanction such a rule, a critical examina- EVIDENCE IN CHANCEEY 229 tion will show that it has not been decided in any of them that a judgment must necessarily be reversed when the referee receives evidence reserving his decision. (Cluss- man v. Merkel, 3 Bosw., 402 ; Brooks v. Christopher, 5 Ihier, 216 ; Peek v. Yorks, 47 Barb., 131 ; "Waggoner v. Finch, 1 N. Y. S. C. [T. & C], 145; McKnight v. Dunlop, 5 N. Y., 537, 545.) The precise question was not presented in any of the oases cited, and without discussing them more fully, it is sufficient to say that they are not in point. A contrary doctrine was held in Kerslake v. Schoonmaker (3 N. Y. [T. & C.J, 524 ; 8 Hun, 436), where most of these cases are considered. As was held in the case last cited, if the de- cision of the referee might prove injurious, it would be liable to exception. There are cases where it is easy to see that the admission of evidence in this form might em- barrass the defense in determining to what extent testi- mony should be introduced in answer to that which has been admitted under such a restriction. And where the case shows in any way that such a ruling would be prej- udicial to the rights of the party objecting, it would be a subject of exception which would lead to a reversal of the judgment. It is quite as objectionable for a referee to make a mistake in his ruling, generally, as to make a decision reserving the question as to the admissibility of evidence which may in any way prejudice the party. As was well said in Sharpe v. Freeman (45 N". Y., 804), by Judge Folger: "It (the practice referred to) is then not to be commended, however, for it does not conduce to a clear and accurate trial of the action, nor to the explicit presentation of the questions for review." When rul- ings of this kind are made, they must be considered upon review, the same as if an objection had been made and overruled and an exception taken to the decision of the referee. It is not apparent that any of the decisions which were reserved by the referee could have affected 230 LATHEOP ET AL. V. BEAMHALL the rights of the defendant injuriously so as to render them liable to objection, and they therefore do not pre- sent any legal ground for a reversal of the judgment. But a single objection is urged to the testimony which was received unquaHfiedly, and that relates to the mem- orandum which was offered and received as evidence. It was objected to not only upon the ground that it was not evidence against any of the parties but Bramhall, or against any member of the firm of Livermore, Clews & Company, except Mr. Clews, but for the reason that it was proved that the contract was outside of the memo- randum. The referee reserved his decision as to the first and second grounds, and overruled the objection as to the third ground. In a subsequent stage of the case a motion was made to strike it out on grounds which were stated and overruled. The remarks already made as to the right of the referee to reserve his decision under the cir- cumstances are a sufficient answer to the first two objec- tions made to its introduction. The other objections now urged will be further considered. The memorandum re- lated to the terms of the purchase of the Frostburgh Coal Company. It stated the amount of capital stock, the number of^shares and the price, and that cash was to be paid upon delivery. It also stated that Messrs. Lath- rop and Graham were to have a certain number of shares which were named at cost, as well as certain other mat- ters which it is not material to recite. This paper alone of itself was of but little, if any, importance, as there was no particular contradiction as to the terms of the pur- chase, without oral evidence to establish that the pur- chase was a joint one, and made for the benefit of all the defendants. The evidence in regard to it tended to show that at the time of the alleged meeting of the parties when the sale was made, Bramhall, one of the defendants, made this written memorandum, which was found among his papers, and read it over to those who were present, EVIDENCE IN CHANCERY 231 inquiring whether it was correct or whether the parties who were present should take the stock which was then sold. It was not offered to refresh the memory of the witness, and was not admissible in that point of view, and the rule applicable to such a case cannot be invoked, nor was it competent alone as the contract of the parties, but it was evidence which corroborated and confirmed the oral proof as it coincided with it as to the terms of the contract. The two together showed what the contract was, and there can be no valid objection where an oral contract is made, to prove that its principal terms were written down and a memorandum made of them and read at the time. The one is not a substitute to the other, and both are properly admissible without violating any rule of law. It is not a case where a vaHd contract is made in writing which entirely supersedes the oral contract, but one where an oral contract is entered into, and a memo- randum made at the time as to its general features and characteristics. Eegarding it in this light there would be no reason for striking out the oral testimony as was asked upon the trial in reference to the same matter. An objection is made that the memorandum was not properly identified. There was evidence to show that it was in Bramhall's handwriting, and that it was the memo- randum made at the meeting, and if there was any defect in this respect the testimony of Bramhall, as to its iden- tity, was of such a character as to render it a fair ques- tion for the referee to determine whether it was suffi- ciently identified. It cannot be claimed that there was such an entire absence of evidence in regard to it as would authorize its rejection for the reason stated, and as there was at least some evidence, it was for the referee to decide as to the weight to be given to the testimony which related to its identity. It is not the province of this court to consider the weight of the evidence upon the question of the joint lia- 232 ALLISON V. DEAKE bility of the defendants. That duty belonged to and has been discharged by another tribunal. As no legal error was committed upon the trial, the judgment must be affirmed, with costs. (Note: This is a case at law, but having been re- ferred to a referee, it is analogous to a case under refer- ence to a master of chancery.) 67A. ALLISON v. DRAKE 145 III. 500 In both the original and in the amended and supple- mental bill, George A. Drake alleges errors apparent on the face of the partition proceedings and decree, and in the latter bill he prays to have the partition pro- ceedings absolutely set aside and vacated, and that a new partition be made. The principal error alleged is, that the partition decree appears to have been entered by the agreement of the adult parties to the suit, and without any hearing upon pleadings and proofs. The facts, as shown by the record, seem to be, that a guardian ad litem for Drake was appointed, who an- swered for his ward instanter; that the cause was re- ferred to a master to take proofs, but that the order of reference was subsequently vacated, and that the com- plainant and the adult defendants having filed an agree- ment in writing consenting to a partition of the prem- ises described in the bill for partition, the cause came on to be heard on the bill, the answer of the guardian ad litem, and said agreement, and that on such hearing the court found the rights of the parties to be as alleged in the bill, and ordered the land to be partitioned accord- ingly, and appointed commissioners to make the parti- tion. There can be no doubt that a decree rendered against an infant under these circumstances is erroneous. We EVIDENCE IN CHANCEET 233 60 held in Gooeh v. Green, 102 111. 507. In that case a decree for partition, where one of the parties was an in- fant, was rendered hy agreement of the adult parties, the guardian of the infant joining in the agreement. We there held that the agreement could have no bear- ing, as the infant could not be bound or concluded by it; that, in a proceeding in chancery, a decree can not be properly rendered against an infant, unless it be founded upon or sustained by evidence. So in Quigley ▼. Eoberts, 44 111. 503, the rule was laid down, that a de- cree can not be rendered against an infant, unless it be on proof of the allegations of the bill. This error in the decree in the partition proceedings would doubtless have been su.f[icient to entitle Drake to have the decree set aside as against the original par- ties to it. But whether he is entitled to such relief as against Allison or his heirs is quite another question. Allison was a purchaser for value from the grantee in the sheriff's deed, and, so far as appears, his purchase was bona fide. In Lloyd v. Kirkwood, 112 111. 329, we said: "A decree against an infant, like that against an adult, is absolute in the first instance subject to the right to attack by original bill, for either fraud or error merely, but until so attacked, and set aside or reversed on error or appeal, it is binding to the same extent as any other decree or judgment. This right to attack a decree by original bill may be exercised at any time before the infant attains his majority, or at any time afterwards within the period in which he may, under the statute, prosecute a writ of error for the reversal of such decree. . . '. The rule thus established is, of course, subject to the qualification that the decree of a court having jurisdiction of the subject-matter of the suit and the person of the infant against whom it is ren- dered, will not be thus set aside as against third parties who have, in good faith, acquired rights under it ; but as against original parties to the suit and their legal rep- 234 ALLISON- V. DRAKE resentatives, the rule as above stated will be enforced." In Freeman on Judgments, sec. 513, it is said: "An absolute decree against an infant is, at least, so far binding on him, that he can neither by bill of review, nor by an original bill, nor by any other proceeding, impeach it so as to prejudice the interests of bona fide purchasers without notice. This is equally true, whether the judgment or decree is sought to be set aside on the ground that there was error in the judgment of the court in not giving a day to show cause, or error in other respects in the judgment rendered, or whether the judgment or decree was obtained by the guardian or other representative of the infant, for the purpose of defrauding him of his estate." The rule thus laid down seems to be well sustained by the authorities, and applying it, we are unable to see how, as against Allison and his heirs, any ground is shown for setting aside the partition decree. The decree of the circuit court will be reversed and the cause will be remanded to that court, with directions to dismiss the bill so far as it relates to lots 1 and 2, conveyed by the purchaser at the sheriff's sale to Allison. (Note : Part of the above opinion omitted.) XVII MASTER IN CHANCERY 68. MOSS V. McCALL 75 III. 190 Justice Scott : But there is another reason why this decree must be set aside. In order to ascertain whether the amounts found to be due to complainants from de- fendants, are warranted by the evidence, an investigation of complicated partnership accounts between these parties would be necessary, consisting of transactions ex- tending through a series of years. These accounts in the aggregate amount to many hundred thousands, and per- haps millions of dollars. One witness said, to make all necessary calculations on the basis suggested, would re- quire a lifetime. This may be an exaggerated form of ex- pression, but it would certainly require a very great amount of labor to make all calculations necessary to ad- just the rights of parties. It is not the duty of an appel- late court to assume to perform this labor. The court, in the first place, should have settled the rights of the part- ners, whether interest was to be computed on their indi- vidual accounts with the firms, and having determined the basis by an interlocutory decree, should have referred the cause to a competent master to state the accounts, and if either was dissatisfied mth the conclusion reached, upon exceptions being filed, the question could have been read- ily determined by the court. As it is, the testimony comes before us in a confused mass, rendering it impracticable for us, in any reasonable time, to pass upon the objec- tions to the findings of the court. '^lOnn"^^ ™''^^ n^f lia permitted, by stipulai ixai--Qr_Qtherwise, to imposeupon ]ap appellate cour t the perform anc e of diitTes tha t jEou ld 235 236 MOSS V. M CALIi be_gerf ormed by a master in chancer y. Where acconn ts Jn\7f>iYp lar^e snms ot' money, andtestimony as to th e riglits of partliftSj PnT^fliptiTig flnrl nnRa.tisfa.fi t.orv. in C On- fnrTnity With the rulcs of chancery practice, the cau se TTmst. hp TAfftrred to a master to render a concise and ac - cura te statement of the accounts, so that the same may be readily comprehended, and any obiectiontake npassed upo n understandin gly. This is the well recognized and established practice in all cases of a comphcated char- acter, and should have been adopted in this case. Steere V. Hoagland, 39 111. 264; Bressler v. McCune, supra; Einer v. Tousle, 62 111. 266; Grouch v. Stenger, 65 111. 481; Dubourg v. The United States, 7 Peters 625. The case of Grrouch v. Stenger is an authority exactly in point, where the accounts between the parties were complicated, and the decree was reversed because the case had not been referred to a master to state an account. The correctness of the practice established by these cases is not contested, but to avoid the force of the rule, it is urged this cause was tried on a stipulation, and an affirmance is asked on the principle of Einer v. Tousle, supra. The suggestion has no foundation in the record. It appears the decree was rendered in open court at the December term, 1870. The stipulation signed by counsel at the previous August term, to the effect the case might be heard by the judge at chambers in vacation, although found among the files, is no part of the record, and has not been made so in any manner to entitle it to be con- sidered in this court. But if it was, it does not appear the cause was ever heard upon that stipulation at cham- bers. The record imports verity, and that shows the cause was heard at the December term. Nothing to the contrary appearing, we must regard the case as having been heard and decided in open court. That being so the rule announced in the cases cited is applicable, and the c ourt should have first determined the rights of tbft parties, and if it decided an account should be taken aet- MASTER IN CHANCEBY 237 tie d the bas is_b;_a n interlocutory decree, and tb .eB^^:£- fe rred tlii"cause to the master in chancery^ in a cf'nrd arif'Pi with Jhe practice in snch caae s. Because of the errors indicated, the decree will be reversed, and the cause remanded for further proceed- ings not inconsistent with the views expressed in this opinion. (Note: Part of above opinion, omitted.) 69. WOOSTER v. GUMBIRNNER 20 Fed. Rep. 167 Justice Wheelee : The question in this ease, certified by the master, as to whether the orator shall be allowed, in rebuttal, to introduce evidence that is not strictly re- butting to the defendant's evidence, but tends to prove the orator's case, as made in his opening, more fully and specifically than his opening evidence did, must, in the first instance, at least, rest in the sound dis- cretion of the master. The seventy-seventh rule in equity provides that he shall regulate all the proceedings, and shall have full authority "to direct the mode in which the matters requiring evidence shall be proved be- fore him." These provisions must include the order of putting in evidence that would, in any stage of the pro- ceedings, be lawful and competent, and which would not deprive either party of any substantial legal right. The question is remitted to the master. 70. KIMBERLY v. ARMS 129 V. 8. 512 Justice Field : The first question to be considered on the appeal relates to the effect to be given to the findings 238 KIMBEELT V. ABMS of fact and of law contained in the report of the special master. The court below refused to t reat them as pr e- Rmnptivply nnrr <^fit, so a.a to impose upon the excep ting parfiPSj t he burden of showing error in th em. It consid- ered the case as presented on the pleadings and proofs, without reference to the report, to which there was ac- corded only the weight due to the careful and well consid- ered opinion of a lawyer chosen by the parties to act as a judge, with quahfications to justify the selection. What that weight was, and in what appreciable way it could affect the judgment of the court, does not appear. A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, ^and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens upon property involved, and similar services. The information which he ma y communicate by his^ fipdings _ m sucli cagfeis, upon the evidence presen ted— feeuJiim^s merel^v advisory to the n nnrt^ wbifib it rriFiy a^flpptmr^ - act nprni or disregard in whole o r in pfi,rf, ifpnrrlip^t.n it.s^f> wn j^i rj gTnpnt. a.a to t h ft woigh J L Df th e_eyidence. Basey V. Gallagher, 20 Wall. 670, 680 ; QumbyvriTonlan, 104 U. S. 420, 424. In practice it is not usual for the court to reject the report of a master, with his findings upon the matter referred to him, unless exceptions are taken to them and brought to its attention, and, upon examina- tion, the findings are found unsupported or defective in some essential particular. Medsker v. Bonebrake, 108 U. S. 66; Tilghman v. Proctor, 125 U. S. 136, 149; Cal- laglaan v. Myers, 128 U. S. 617, 666. It is not within the general province of a master to pass upon all the issues in an equity case, nor is it competent for the court to refer the entire decision of a case to him without the con- sent of the parties. It cannot, of its own motion, or upon MASTEE IN CHANCEKT 239 the request of one party, abdicate its duty to determine by its own judgment tlie controversy presented, and de- volve that duty iipon any of its officers. But when the parties consent to the reference of a case to a master or other officer to hear and decide all the issues therein, and report his findings, both of fact and of law, and such ref- erence is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary references, without such con- sent; and his determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference by consent of parties, of an entire case for the determination of all its issues, though not strictly a submission of the controversy to arbitration — a proceed- ing which is governed by special rules — is a submission of the controversy to a tribunal of the parties' own se- lection, to be governed in its conduct by the ordinary rules appHcable to the administration of justice in tri- bunals established by law. lia. findinp^s, like those of an i ndependent tribunal, are to be taken as presumpti vely correct, subject ^p^p^d^ to be reviewed under the r^ser- vation contained in the consent and order of the cour?, when there has been manifest error in the consideration given to the evidence, or in the apphcation of the law, but not otherwise. The reference of a whole case to a master, as here, has become in late years a matter of more common oc- currence than formerly, though it has always been within the power of a court of chancery with the consent of par- ties to order such a reference. Haggett v. Welsh, 1 Sim. 134; Dowse v. Coxe, 3 Bing. 20; Prior v. Hem- brow, 8 M. & W. 873. The power is incident to all courts of superior jurisdiction. Newcomb v. Wood, 97 U._ S. 581 583. By statute in nearly every state, provision has' been made for such references of controversies at law And there is nothing in the nature of the proceed- ing or in the organization of a court of equity, which 240 KIMBERLY V. ARMS should preclude a resort to it in controversies involving equitable considerations. By the consent in the case at bar it was intended that the master should exercise power beyond that of a reporter of the testimony. If there had been such a limitation of his authority, there would have been no purpose in adding to his power "to hear the evi- dence" the power to "decide all the issues between the parties and make his report to the court, separately stat- ing his findings of law and of fact" together with the evidence. T irrlinr rrni rd thr fi ndings and treat the repor t na n mprp prpgAntgfinn nf iTio +Qj^timony is to defeat, as we conceive, the purpose of the reference an d disregard" tJip pirprffifa f^t^ pulation of the part ies. " We are, therelor e, nrm sit V4d33Prl tp }^n^r\ iltai^ tha Ipgyyi ptl finnrt beloW failed to g-ivp t.f) th e findings of the master the weight to wh ich thpy wp re entitled, and that they sh ould have been treated _ as so far correct and binding as not to be dis turbfeTJTTln- l^nn n1 ea rl y in conflict with the weight of the evidence - npQTi -t yhich they were ma de^ That there wasTio such conflict is manifest. Upon nearly every important par- ticular relating to the partnership between Arms and Kimberly, and its business, there is hardly any discrep- ancy in the testimony of the parties. It is only as to the circumstances under which Arms obtained his loan from Fairbank, with which he purchased the shares in the Grand Central Mining Company, that there is any seri- ous dispute; and as that transaction is viewed — as the act of a partner or agent of the firm, or as the act of the individual without regard to such partnership — the con- clusion is reached as to his liability to account for them. If the findings are taken as correct — there not being sufficient evidence to justify a disregard of them — there is an end to the controversy, for in accordance with them the firm had an interest in the shares purchased, and the complainant an equitable right to his proportion upon its dissolution. It follows from the views expressed that the decree MASTEB IN CHANCEEY 241 of the court below must be reversed, and the cause re- manded with directions to confirm the report of the spe- cial master, and to take further proceedings not incon- sistent with this opinion. (Note: Parts of above cause, not bearing on equity procedure, omitted.) 71. McMICKEN v. PERIN 18 Howard 507-511 Justice Campbell : The appellant further objects that his debt was not accurately ascertained by the master upon the decree of reference. In Story v. Livingston, 13 Pet. 359, t bis cnnrt decided that^ nn nh-jenti^Ti s to a ma ster 's report can be made wh ich were not taken bef ore thr mnritpri thn nbjf^nt b^^g ^ to save tim e, and to giv e him an opportunity to correct h is errorsa nd recon sider his opinion . And, in Heyn v. Heyn, Jacob 49, it was~3§- cided that, after a decree pro confesso, the defendant is not at liberty to go before the master without a special order, but the accounts are to be taken ex parte. This court will not review a master's report upon objections taken here for the first time. -Onr f.mifil usion is. there is Tin prrf>r in t.be final decree rendered in the circuit cour t. At a subsequent term, the appellant filed a petition in the circuit court, alleging that he had been deceived by the appellee in reference to the prosecution of the bill, and had consequently failed to make any appearance or answer, and that he had a meritorious defense. He prayed the court to set aside the decree, and to allow him to file an answer to the bill. This petition was dismissed. We concur in the judgment of the circuit court as to the propriety of this course. This court, in Brockett v. Brockett, 2 How. 238, determined that an appeal would not lie from the refusal of a court to open a former de- E. P. C— 16 242 GAINES V. NEW ORLEANS cree, thougli the petition in that case was filed during the term at which the decree was entered. In Cameron V. McEoberts, 3 Wheat. 591, it decided that the circuit courts have no power to set aside their decrees in equity, on motion, after the term at which they were rendered. These decisions are conclusive of the questions raised upon the order dismissing the petition. The decrees of the circuit court are affirmed, with costs. (Note: Portion of above case, not bearing on equity pleading and practice, is omitted.) 72. GAINES V. NEW OELEANS 1 Woods, 104 Opinion by Bradley, J.: Statement of Facts. In these oases the defendants except to the master's report. It does not appear, by the report of the master's minutes, that the exceptions were taken before him. T|ift rnlft of prflp.tip.ft is that nn fiir ceptions will be hear d by t h ft f "^n rt wh ifh hnvp not bpen Tnarle befo re the mast er, gr> Qg ^-rt frJMra Tlil-n p-n r.ppr>yf unify of COUSiderinS;' the SamC an d correcting his repo rt. But as counsei on both sides have evidently acted under a misapprehension of the* rule, I will not overrule the exceptions on that ground, especially as some of them are of great importance to the rights of the parties. But it is desirable that the rule should be observed, and hereafter, in the absence of very special circumstances, the court will feel bound to en- force it. It was declared by the supreme court of the United States in McMicken v. Peria, 18 How., 507, and in other cases there referred to. The principal exceptions are : 1. That the defendants did not realize the rents and profits which the master has charged them with. As this is a matter of fact aris- ing from the evidence, the court wUl not undertake to MASTER IN CHANCEEY 243 re-examine and re-try tlie whole case ; but will allow the report to stand, unless some particular matter is pointed out in which the master has committed an error, or unless it be shown that he has adopted some erroneous principle on which his account or calculation is based. (Note : Portion of above case, not bearing on Equity Pleading and Practice, is omitted.) XVIII DECREES 73. MEAGHER v. THEESHEB CO. 145 U. 8. 608 Chief Justice Fullbb: One McKusick recovered judgment in the district court of Washington county, Minnesota, against the corporation of Seymour, Siabin & Co., and in aid of execution brought an action praying for a sequestration of the stock, property, things in ac- tion and effects of the corporation, and the appointment of a receiver to take charge thereof and carry on its business until sale or other disposition. A receiver was accordingly appointed, qualified and entered upon the administration of the company's affairs and effects. An order was entered by the court requiring the creditors of the corporation to exhibit their claims in the action, which was done, among others, by the Minnesota Thresher Manufacturing Company to a very large amount. Subsequently the latter company filed an in- tervening petition or complaint in the general winding- up action, setting forth the names of some sixty share- holders of the Seymour-Sabin corporation, and the amounts of their holdings of stock, and praying that the court make those named, and all other persons who might subsequently be found to be shareholders, parties to the action ; require them to answer the petition ; and enforce the liability in respect of stock held by them which the petition claimed the constitution of the state imposed. It was also prayed that the court determine the amount of the assets of the Seymour-Sabin Company available for the satisfaction of the claims of creditors ; the amount 244 DECREES 245 of its indebtedness ; the number of stares of its capital outstanding between July 5, 1881, and May 10, 1884, dur- ing wbicli time the indebtedness represented by the claims filed was incurred ; the names of the various hold- ers of stock between those dates ; what shareholders were insolvent; what non-resident; what persons were en- titled to share in the assets and to what extent ; and the amount of any other indebtedness on the part of any of the defendants to the Seymour-Sabin Company. The district court made an order impleading the par- ties named as defendants in the action, and requiring them to enter their appearance and answer within a time limited. Among the numerous persons thus made defendants, the plaintiffs in error in this case were in- cluded, and they demurred to the intervening petition or supplemental complaint upon the ground, among others, that the facts stated were not sufficient to con- stitute a cause of action. The petition charged that de- fendants were liable upon their stock to the extent of a sum equal to the par value thereof for the debts of the Seymour-Sabin corporation under section 3, article 10 of the constitution of Minnesota, which provided : "Each^ stockholder in any corporation (excepting those organ-^ ized for the purpose of carrying on any kind of manu/ facturing or mechanical business) shall be liable to tha' amount of stock held or owned by him. ' ' / The demurring defendants contended that this was a mere direction to the legislature of the state to impose such a liability and was not self -executing. The demurrers of plaintiffs in error and of other de- fendants were sent by order of the district court to a referee to hear and determine, and make, report and file such order as might be proper. Consent by stipulation was given to the making and entry of this order, sub- ject to the right, thereby reserved, "of either party to move, amend, plead over or appeal, as he or they shall be advised after notice of the order determining said issues ; 246 MEAGHER V. THEESHEE CO. Provided, however, that this stipulation shall not be con- strued to be or operate as the waiver of any rights of any party or parties thereto or of any objection to the jurisdiction of said court which said party or parties now has or might now urge ;" and this stipulation was signed by the attorneys for upwards of sixty defendants. The demurrers were overruled with leave to answer over within twenty days from the entry of the order, and the present plaintiffs in error took an appeal to the supreme court of Minnesota. That court held that the constitutional provision was self -executing and created an individual liability on the part of the stockholder for corporate debts to an amount equal to the amount of stock held or owned by him, and affirmed the order of the district court. Thereupon the writ of error from this ^c anTJ was sued nnt. .. ^ We are of opinion that the judgment of the supreme court of Minnesota was not a final judgment within sec- tion 709 of the Revised Statutes. It is a judgment affirm- ing with costs an order which overruled a demurrer. Rule XVIII of the supreme court of Minnesota provides : "Upon the reversal, affirmance, or modification of any order or judgment of the district courts by this court there will be a remittitur to the district court, unless otherwise ordered." 12 Minn. XIV; Manual of Prac- tice, 1872, rule XVIII. The plaintiffs in error upon the return of the case to the district court could plead over, as the order below allowing time for so doing had, be- fore its expiration, been superseded by the appeal. More- over, the record discloses that in this instance the par- ties, in view of taking the appeal, expressly stipulated "that after the decision on said appeal by said supreme court any of said defendants may answer in the court below if they see fit to do so, and may, after said de- cision on appeal, take any action in said lower court which they might take at the present time." It will be observed that plaintiffs in error are only DECKEBS 247 a portion of the defendants who were proceeded against by the intervening petition, and what has become of the others does not appear. The case should have been de- termined as to all, before our interposition, if justifiable in any view, could be invoked. Under the complaint, accountings must be had and proofs taken as to the amount of the proceeds of the insolvent corporation's estate; the rights of claim- ants therein; the liability of directors and share- holders, if any, upon other accounts, etc., and the amount to be paid by each shareholder must be decreed, jf thi s were a decree of the ci rcu it court, it would come within thij xulG thai to be linal th e court below skould have not hing to do but tcTe^cuie it ii a&rmect! " "K-eysTone Iron Co. V. Martin, 132 U. S. 91. And as a judgment of reversal by a state court with leave for further proceed- ings in the court of original jurisdiction is not subject to review here, Bostwick v. Brinkerhoff, 106 U. S. 3 ; Eice v. Sanger, 144 U. S. 197, this is also true of a judgment merely affirming in interlocutory order, however appar- ently decisive of the merits. Writ of error dismissed. 74. LOUISIANA BANK v. WHITNEY 121 U. S. 284 Chief Justice Waite: This is a proceeding begun May 22, 1883, by Mrs. Myra Clark Gaines, then in life, to subject a certain sum of $40,000 on deposit in the Loui- siana National Bank to the payment of a judgment in her favor against the City of New Orleans. There is no dispute about the fact that the money in question was on deposit when the proceedings was begun and the bank served with process, but the Board of Liquidation of the City Debt has made claim to it as part of the fund ap- 248 LEWISBUEG BANK V. SHEPPET propriated by Act No. 133 of 1880 to the payment and liquidation of the bonded debt of the city. Pending the determination of the questions involved, the court, March 15, 1886, ordered the money paid into the registry of the court. From this order the bank has appealed, and also sued out a writ of error, and the Board of Liq- uidation has likewise appealed. The representatives of Mrs. Graines, who were made parties to the proceeding after her death, now move to dismiss both the writ of er- ror and the appeals, because the order to be brought under review is not a final judgment or decree within the meaning of that term as used in the acts of Congress giv- ing this court jurisdiction on appeals and writs of error. We have no hesitation in granting the motion. The court has not adjudicated the rights of the parties con- cerned. It has only ordered the fund into the registry of the court for preservation during the pendency of the litigation as to its ownership. Such an order it has al- ways been held is interlocutory only and not a final de- cree. Forgay v. Conrad, 6 How. 204 ; Grrant v. Phoenix Ins. Co., 106 U. S. 431. If in the end it shall be found that the fund belongs to the Board of Liquidation, it can be paid from the registry accordingly, notwithstanding the order that has been made. The money when paid into the registry will be in the hands of the court for the bene- fit of whomsoever it shall in the end be found to belong to. Both the appeals and the writ of error are dismissed. 75. LEWISBUEG BANK v. SHEFFEY 140 U. S. 445 Chief Justice Fullee : Describing the decree of May 4, 1878, as "interlocutory," and that of November 30, 1887, as "final," appellant assigns errors as follows: That the decree of May 4 is erroneous, because it in ef- DECREES 249 feet overruled the demurrer to the bill ; and denied ap- pellant 's motion to file its amended and supplemental answer; and that the decree of November 30, 1887, is er- roneous, because (1) it rejected the petition for a rehear- ing; (2) held the deed of November 20, 1876, valid; (3) overruled appellant's exceptions to the master's re- port; (4) held that the deed to plaintiffs had priority- over that of October 11, 1875; (5) held that the debt of appellant was not entitled to priority under the provi- sions of the deed to plaintiffs; and because (6) it should have held that the appellant was entitled to the fund in controversy, if for no other reason, upon the ground of its judgment obtained after Glendy had acquired the legal title to the land. If the decree of May 4, 1878, were final, no errors can now be assigned to it or considered upon this appeal. And if that decree, being final, cov- ered all the grounds of error urged to the decree of No- vember 30, 1887, then the latter decree must necessarily be affirmed. The apphcation for a rehearing was con- fessedly made after the adjournment of the May term, at which the prior decree was entered, and too late if that decree were final. Equity Eule 88; McMicken v. Perin, 18 How. 507, 511; Eoemer v. Simon, 91 U. S. 149; Central Trust Co. v. Grant Locomotive "Works, 135 U. S. 207, 224. The controversy raised by the pleadings and to be de- termined by the court was whether the property passed under the deed to plaintiffs, or under that to Mathews and whether the bank was entitled to priority. The ef- fect of the sale by consent was merely to substitute the fund in place of the real estate and did not change the issues. On behalf of the bank it was claimed that the trust deed to the plaintiffs was void on its face, and that by the terms of that deed, if valid, the debt of the bank was preferred. By the amended and supplemental an- swer, which it sought to file, the bank raised the question that Glendy, not having the legal title when he executed 250 LEWISBURG BANK V. SHBFPEY the deed to the plaintiffs, and having by his prior deed to the bank divested himself of his equitable title, the plain- tiffs did not, as Glendy's grantees, under a conveyance "without any warranty whatever," occupy the position of bona fide purchasers, nor were they protected by the recording statutes of the State ; and the facts set forth therein involved, moreover, the position urged in the petition for rehearing, that the deed to the plaintiffs be- ing simply a grant without covenants, Glendy's after- acquired legal title did not inure to them and that the bank became entitled to the fund by virtue of its judg- ment, which was recovered after Glendy acquired the legal title. So that all these matters were necessarily passed upon by the court and the decree in terms de- clared that the facts stated in the amended and supple- mental answer did not change the rights of the parties in the cause, made the injunction perpetual and directed the fund to be brought into court for distribution "in accordance with the provisions of the deed of Robert J. Glendy to Hugh W. Sheffey and James Bumgardner, Jr., bearing date on the 20th day of November, 1876." This finally determined the entire controversy litigated be- tween the parties and nothing remained but to carry the decree into execution. The bringing of the fund into court was for the final distribution as decreed, and not to be held pending the ascertainment of the principles upon which it should be distributed. Hill v. Chicago & Evanston Eailroad Co., ante, 52, and cases cited. The subject was much considered and many cases re- ferred to and classified and the distinctions indicated, in Keystone Iron Co. v. Martin, 132 U. S. 91. It is there shown that where the entire subject-matter of a suit is disposed of by a decree, the mere fact that accounts re- main to be adjusted and the bill is retained for that pur- pose, does not deprive the adjudication of its character as a final and appealable decree. It is true, as pointed out by Mr. Justice Field in Hill v. DECREES 251 Chicago & Evanston Railway, supra, that an appeal may- be taken from a decree in an equity cause, notwithstand- ing it is merely in execution of a prior decree in the same suit, for the purpose of correcting errors which may have originated in the subsequent proceeding. This was so held in Chicago & Vincennes Railroad v. Fosdick, 106 U. S. 47, 83, and was the rule sanctioned and adopted in Forgay v. Conrad, 6 How. 201, and Blossom v. Mil- waukee, &c.. Railroad Co., 1 Wall. 655. An appeal will lie from such decrees according to the nature of the sub- ject-matter and the rights of the parties affected. But the errors assigned here relate solely to matters included within the adjudication of May 4, 1878, except as the refusal to permit the petition for rehearing to be filed may be otherwise regarded, though that petition was itself predicated upon one of the aspects of the con- troversy. And as to that allegation of error, we have al- ready seen that the objection is not well taken, even if open to consideration at all. Brockett v. Brockett, 2 How. 238. Decree affirmed. 76. ALLISON ET AL. v. DRAKE ET AL. 145 111. 500 Chief Justice Bailey: The appellees have moved to dismiss the appeal, on the grou.nd that the decree ap- pealed from is not final. This contention is based upon the fact that the decree, after definitely and finally de- termining the rights of the parties by vacating and set- ting aside the decree in the former partition suit and all proceedings thereunder and ordering a reconveyance to the complainants by the representatives of AlHson of lots 1 and 2, and also fixing the respective interests of the several joint tenants in the land in controversy and ordering partition thereof between them and appoint- 252 ALLISON ET AL. V. DRAKE ET AL. ing commissioners for tliat purpose, also awards the complainants an accounting in respect to the use and oc- cupation of the lands, and refers the cause to the master to take and state such account. We are of the opinion that the decree is final so as to authorize an appeal to this court, notwithstanding the order for an accounting. A final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined, but when it finally fixes the rights of the parties, it is final and may be reviewed on appeal or writ of error. Myers v. Manny, 63 111. 211; Bostwick v. Brinkerhoff, 106 U. S. 3 ; St. L., I. M. & S. E. R. Co. v. Southern Express Co., 108 id. 24. That is done by the present decree, and the proceedings under the order of reference are only in the nature of an execution of the decree. The point is made that the bill, being a bill of review, or a bill in the nature of a bill of review, is insufficient because it fails to set out, in extenso, the pleadings and decree in the matter sought to be reviewed, and in sup- port of this contention we are referred to Aholtz v. Dur- fee, 122 111. 286, and other decisions in which the same rule is laid down. In this case, however, the question as to the insufficiency of the bill in this respect is raised for the first time in this court. No exception was taken to the frame-work of the bill in the court below by demur- rer or otherwise, but the defendants answered, and went to the hearing on pleadings and proofs, treating the bill throughout as though it contain a sufficient statement of the proceedings sought to be reviewed. We think this may be regarded as a waiver by the defendants of the defect in the bill, and an admission on their part that the proceedings referred to were sufficiently set out to pre- sent the errors of law which were claimed to be apparent upon the face of the record, and to entitle the complain- ants to the relief prayed for. An objection to a bill of DECREES 253 tMs character raised for the first time in this court can not be sustained. But we are of the opinion, in the first place, that the decree rendered in this case, so far as it relates to Ehza- beth Marsh, can not be sustained. The final decree sought to be reviewed was entered November 30, 1881, and she became a party to the present suit, by inter- vening and joining as co-complainant to the supple- mental bill, March 4, 1889. She thus delayed the bring- ing of her bill of review seven years and a httle over three months after the rendition of the decree which she now seeks to set aside. She was laboring under no dis- ability which stood in the way of her bringing her suit to have the former decree reviewed or to impeach it for fraud, nor are any adequate reasons given for the de- lay. Under these circumstances, her bill is brought too late. A bill of review for matters apparent upon the face of the record can be brought only within the time allowed for the bringing of a writ of error, viz., five years, the complainant being under no disability. Dol- ton V. Erb, 53 111. 289; Pestel v. Primm, 109 id. 353. And the rule is the same in case of a cross-bill in the nature of a bill of review to impeach a decree. Bell v. Johnson, 111 111. 374. And, in general, a bill of review to impeach a decree for fraud is barred in the same time, unless some very clear reason is shown for the delay. Sloan V. Sloan, 102 111. 581 ; Chicago Building Society v. Haas, 111 id. 176. In the next place, there is no evidence tending to charge Alhson, the grantee of the purchaser at the exe- cution sale, with either actual or constructive notice of the fraud. The purchaser at the execution sale was the solicitor himself, and he of course was chargeable with notice. But not so as to Alhson, his grantee. The bill charges that Alhson was the real purchaser at the exe- cution sale, and that the sohcitor bid off the property merely as his agent, and immediately, on obtaining 254 ALLISON ET AL. V. DRAKE ET AL. title, conveyed the land to Mm in pursuance of such, pre- vious arrangement, but there is no evidence tending to sustain that allegation. So far as we can see, there is nothing in the record tending to charge Allison with actual or implied notice of the alleged fraud of the solicitor at the time the land was conveyed to him, but it is claimed that he was chargeable with constructive notice. As has already been stated, Mrs. Marsh and the guardian of George A. Drake, shortly prior to the execution sale, filed their bill setting up the alleged fraud of the solicitor, and praying for an injunction restraining the sale. That bill was pending at the time of the conveyance to Alli- son, and was afterwards dismissed without a hearing or decree, on motion of the complainants therein. The claim is set up that as that bill was pending at the time Allison obtained title, he was chargeable with con- structive notice of its allegations, upon the principle of lis pendens. There is no pretense that Allison had any actual no- tice of the bill or its allegations, and we are of the opin- ion that the rule of constructive notice by lis pendens has no application. "The doctrine of lis pendens is one by which a suit in chancery prosecuted in good faith, and followed by a decree, is constructive notice to every person who acquires from a defendant pendente lite an interest in the subject-matter of the litigation of the legal and equitable rights of the plaintiff, as charged in the bill and established by the decree." Bispham's Eq., sec. 274. It is therefore held that a purchaser of real estate pendente Kte, in circumstances such that he is affected with notice as by hs pendens, is bound by the result of the litigation, and takes subject to the rights so determined. Cable v. Ellis, 120 111. 136; Alwood v. Mansfield, 59 id. 496; Dickson v. Todd, 43 id. 504; Jack- son V. Warren, 32 id. 331 ; Asher v. Mitchell, 9 111. App. 335. The doctrine of lis pendens rests upon the legal DECREES 255 necessity of subjecting to the final decree all rights ac- quired pendente lite without pausing to bring parties acquiring such rights into court and to make them par- ties to the litigation, and it consequently has no place where there is no adjudication and no decree, and the bill is voluntarily abandoned or dismissed by the com- plainants. But there is another reason why the bill in this case cannot have the effect of a lis pendens. There is no evi- dence in the record that any summons was ever issued thereon or served, or that the defendants to the bill ever appeared in court in the suit. A lis pendens begins, where a biU is filed, from the service of summons and not before, and where there is no service and the de- fendant does not appear, there is no lis pendens. Grant v. Bennett, 96 111. 513; Hallorn v. Trum, 25 id. 247; Bank v. Taylor, 131 id. 376. (Part of opinion not in point, omitted). 77. FOEGAY v. CONRAD 6 Howard 201 Taney, C. J.: Statement or Facts: A motion has been made to dismiss this appeal on the ground that the decree in the circuit court is not a final decree within the meaning of the acts of Congress of 1789 and 1803. The bill was filed by the appellee, as the assignee in bankruptcy of a certain Thomas Banks, in the circuit court of the United States for the district of Louisiana, against the appellants, and Banks, the bankrupt, and three other defendants. The object of the bill was to set aside sundry deeds made by Banks for lands and slaves, which the complainant charged to be fraudu- lent, and for an account of the rents and profits of the property so conveyed; and also for an account of sun- 256 FORGAY V. CONRAD dry sums of money wMch he alleged had been received by one or more of the defendants, as specifically charged in the bill, which belonged to the bankrupt's estate at the time of his bankruptcy. The case was proceeded in until it came on for hearing, when the court passed a decree declaring sundry deeds therein mentioned to be fraudulent and void, and directing the lands and slaves therein mentioned to be delivered up to the com- plainant, and also directing one of the defendants named in the decree to pay him $11,000, received from the bankrupt in fraud of his ' creditors, and "that the complainant do have execution for the several matters aforesaid in conformity with law and the practice pre- scribed by the rules of the supreme court of the United States." The decree then directs that the master take an account of the profits of the lands and slaves ordered to be delivered up, from the time of the filing the bill until the property was delivered, or to the date of the master's report, and also an account of the money and notes received by one of the defendants (who has not appealed) in fraud of the creditors of the bankrupt, and concludes in the following words: "And so much of the said bill as contains or relates to matters hereby referred to the master for a report is retained for fur- ther decree in the premises ; and so much of the said bill as is not now nor has been heretofore adjudged and de- creed upon, and which is not above retained for the purposes aforesaid, be dismissed without prejudice, and that the said defendants do pay the costs." Among the deeds set aside as fraudulent is one from the bankrupt to Ann Fogarty, otherwise called Ann Wells, for two lots in the city of New Orleans, and sundry slaves, which she afterwards conveyed to Forgay, the other appellant. Both of these deeds are declared null and void, and the lots, with the improvements thereon, and the negroes directed to be delivered to the complainant for the benefit of the bankrupt's creditors. This part of the DECREES 257 decree is one of the matters of wMch the complainant was to have execution. But the account of the rents and profits of this property is, like other similar ac- counts, referred to the master and reserved for fur- ther decree. The appeal is taken by Samuel L. Forgay and Ann Fogarty, otherwise called Ann Wells; and they alone are interested in that portion of the decree last above mentioned. The bankrupt and the three other defend- ants have not appealed. These three defendants claimed other property, which had been conveyed to them at different times, and by separate conveyances, as men- tioned in the proceedings. And it was not, therefore, necessary, that they should join in this appeal. Todd v. Daniel, 16 Pet. 523. The question upon the motion to dismiss is whether this is a final decree within the meaning of the acts of Congress. Undoubtedly it is not final in the strict, tech- nical sense of that term. But this court has not hereto- fore understood the words "final decree" in this strict and technical sense, but has given to them a more lib- eral, and, we think, a more reasonable construction, and one more consonant to the intention of the legislature. In the case of Whiting v. The Bank of the United States, 13 Pet. 15, it was held that a decree of foreclosure and sale of mortgaged premises was a final decree, and the defendant entitled to his appeal without waiting for the return and confirmation of the sale by a decretal order. And this decision is placed by the court upon the ground that the decree of foreclosure and sale was final upon the merits, and the ulterior proceedings but a mode of executing the original decree. The same rule of con- struction was acted on in the case of Michoud and others V. Girod and others, 4 How. 503. The case before us is a stronger one for an appeal than the case last men- tioned. For here the decree not only decides the title to the property in dispute, and annuls the deeds under E. p. C. — 17 258 FOEGAT V. CONRAD which the defendants claim, but also directs the prop- erty in dispute to be delivered to the complainant and awards execution. And according to the last paragraph in the decree, the bill is retained merely for the pur- pose of adjusting the accounts referred to the master. In all other respects, the whole of the matters brought into controversy by the bill are finally disposed of as to all of the defendants, and the bill as to them is no longer pending before the court, and the decree which it passed could not have been afterwards reconsidered or modified in relation to the matters decided, except upon a petition for a rehearing, within the time pre- scribed by the rules of this court regulating proceed- ings in equity in the circuit courts. If these appellants, therefore, must wait until the accounts are reported by the master and confirmed by the court, they will be subjected to irreparable injury. For the lands and slaves which they claim will be taken out of their pos- session and sold, and the proceeds distributed among the creditors of the bankrupt, before they can have an opportunity of being heard in this court in defense of their rights. We think, upon sound principles of con- struction, as well as upon the authority of the cases referred to, that such is not the meaning of the acts of Congress. And when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to the complainant, and the complainant is en- titled to have such decree carried immediately into exe- cution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, al- though so much of the bill is retained in the circuit court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pur- suant to the decree passed. This rule, of course, does not extend to cases where DECREES 259 money is directed to be paid into court, or property to be delivered to a receiver, or property held in trust to be delivered to a new trustee appointed by the court, or to cases of a like description. Orders of that kind are frequently and necessarily made in the progress of a cause. But they are interlocutory only, and intended to preserve the subject matter in dispute from waste or dilapidation, and to keep it within the control of the court until the rights of the parties concerned can be adjudicated by a final decree. The case before us, how- ever, comes within the rule above stated, and the motion to dismiss is therefore overruled. We, however, feel it our duty to say that we cannot approve of the manner in which this case has been disposed of by the decree. In limiting the right of appeal to final decrees, it was obviously the object of the law to save the unnecessary expense and delay of repeated appeals in the same suit, and to have the whole case and every matter in con- troversy decided in a single appeal. In this respect the practice of the United States chancery courts differs from the English practice. For appeals to the house of lords may be taken from an interlocutory order of the chancellor, which decides a right of property in dis- pute; and therefore there is no irreparable injury to the party by ordering his deed to be canceled, or the property he holds to be delivered up, because he may immediately appeal; and the execution of the order is suspended until the decision of the appellate court. But the ease is otherwise in the courts of the United States, where the right to appeal is by law Hmited to final de- crees. And if, by an interlocutory order or decree, he is required to deliver up property which he claims, or to pay money which he denies to be due, and the order immediately carried into execution by the circuit court, his right of appeal is of very little value to him, and he may be ruined before he is permitted to avail himself of the right. It is exceedingly important, therefore, 260 FOEGAT V. CONRAD that the circuit courts of the United States, in framing their interlocutory orders, and in carrying thena into execution, should keep in view the difference between the right of appeal as practiced in the English chancery jurisdiction, and as restricted by the act of Congress, and abstain from changing unnecessarily the possession of property or compelling the payment of money by an interlocutory order. Cases, no doubt, sometimes arise where the purposes of justice require that the property in controversy should be placed in the hands of a receiver, or a trustee be changed, or money be paid into court. But orders of this description stand upon very different principles from the interlocutory orders of which we are speaking. In the case before us, for example, it would certainly have been proper, and entirely consistent with chancery practice, for the circuit court to have announced, in an interlocu- tory order or decree, the opinion it had formed as to the rights of the parties, and the decree it would finally pronounce upon the titles and conveyances in contest. But there could be no necessity for passing immediately a final decree, annulling the conveyances, and ordering the property to be delivered to the assignee of the bankrupt. The decree upon these matters might and ought to have awaited the master's report; and when the accounts were before the court, then every matter in dis- pute might have been adjudicated in one final decree ; and if either party thought himself aggrieved, the whole mat- ter would be brought here, and decided in one appeal, and the object and policy of the acts of Congress upon this subject carried into effect. These remarks are not made for the purpose of censuring the learned judge by whom this decree was pronounced, but in order to call the attention of the circuit courts to an inconvenient practice into which some of them have sometimes fallen, and which is regarded by this court as altogether incon- sistent with the object and policy of the acts of Congress DECREES 261 in relation to appeals, and at the same time needlessly burdensome and expensive to the parties concerned, and calculated, by successive appeals, to produce great and unreasonable delays in suits in chancery. For it may well happen that, when the accounts are taken and re- ported by the master, this case may again come here upon^ exceptions to his report, allowed or disallowed by the circuit court, and thus two appeals made necessary, when the matters in dispute could more conveniently and speedily, and with less expense, have been decided in one. 78. RAILEOAD COMPANY v. SWASEY 23 Wallace 405 Statement op Facts : The decree in this ease was to the effect that certain shares of stock in the North Caro- lina Eailroad Company belonging to the state of North Carolina, were pledged as security for certain certificates of debt, and that the plaintiff and those he represented were entitled to have the stock sold to pay past-due cou- pons. It also ordered that the commissioner take an account as to interest due and to become due, the propor- tion of stock applied to the payment of interest, and that unless the state shall have made provision for the pay- ment of such interest by a certain day, the stock be sold. Waite, C. J. : An appeal may be taken from a de- cree of foreclosure and sale when the rights of the par- ties have all been settled and nothing remains to be done by the court but to make the sale and pay out the pro- ceeds. This has long been settled. Ray v. Law, 3 Cranch. 179 ; Whiting v. Bank of the United States, 13 Pet. 15. The sale in such a case is the execution of the decree. By means of it the rights of the parties are settled and en- forced. But to justify such a sale without consent, the amount due upon the debt must be determined and the 262 RAILROAD COMPANY V. SWASBY property to be sold ascertained and defined. Until this is done the rights of the parties are not all settled. Final process for the collection of money cannot issue until the amount to be paid or collected by the process, if not paid, has been adjudged. So, too, process for the sale of spe- cific property cannot issue until the property to be sold has been judicially identified. Such adjudications re- quire the action of the court. A reference to a master to ascertain and report the facts is not suflficient. A mas- ter 's report settles no rights. Its office is to present the case to the court in such a manner that intelligent action may be there had, and it is this action by the court, not the report, that finally determines the rights of the par- ties. With these well-settled principles as our guide, it is easy to see that the decree here appealed from is not final. The amount of the debt which the state must pay in order to stop the sale has not been determined, neither has it been determined what amount of stock may be sold if the debt is not paid. In each of these questions the state has a direct interest, and through its representa- tives in court has the right to be heard. They must be settled before the litigation can be said to be at an end. The amount of the debt and the proportion of stock apphcable to its payment are, therefore, still open for future adjudication between the parties. Thus far the court has done no more than declare that for the se- curity of the payment of so much as is due, the plaintiff and those he represents have a lien upon their equitable proportion of the stock, and that the lien may be en- forced by sale, if payment of the debt is not made. It has also declared its determination to order a sale, if payment of the debt is not made or satisfactorily pro- vided for by April 1, 1875. In order that proper action may be had when this time arrives, the master has been directed to state the account of the indebtedness to the plaintiff and those he represents, and of their proportion DECKEES 263 of securities pledged by the state. In this, as it seems to Tis, the court has acted upon the suggestion in Forgay V. Conrad, and by an interlocutory order announced the opinion it had formed as to the rights of the parties and the principles of the decree it would finally render, leav- ing the entry of the final decree in form to be made when the amount due has been ascertained and an apportion- ment of the stock made. In this way the rights of all parties can be protected and no injustice done. In this connection it may not be improper to call the attention of the circuit courts to what was said by Chief Justice Taney in Forgay v. Conrad, as to the care which ought to be exercised in the preparation of decrees of this character. Much time of this court and expense of litigants will be saved if more attention is given to the form of decrees when entered. 79. LESTEE v. THE PEOPLE 150 III. 408 Me. Chief Justice Shope: In the original suit of Berkowitz v. Lester et al., out of which this controversy arises, the circuit court made an order upon the defend- ants to place the books in which the business transactions of the defendants with the plaintiff and other persons were entered, and showing all transactions in which the defendants, as a firm and as individuals, were in any way interested, in the possession of the clerk of the court, that they might be inspected by the plaintiff and his at- torney, with leave to examine and take copies, in order that they might, as it was claimed, prepare for the trial of said cause. Before any proceedings were taken in execution of that order, the defendants brought the case to this court by writ of error, for the purpose of having that order of the circuit court reversed. "We then dis- 264 LESTER V. THE PEOPU! missed the writ of error, upon tlie sole ground that the order was not final judgment, reviewable upon appeal or error. In delivering its opinion in that case this court said: "It was the privilege of the defendants either to obey the order or to stand in defiance of the power of the court. Had the court attempted to enforce obedience to its order by the imposition of a fine, with an order for execution, or by a definite term of imprisonment, as for a contempt of court, the judgment of the court imposing such fine or imprisonment would be final, and from which an appeal might be taken or to which a writ of error would lie. That would conform exactly with the rule stated by the court in Blake's case, 80 111. 523. On the reviewing of such a judgment of the court that might de- prive defendants either of their property or of their lib- erty, the propriety of the preliminary or interlocutory order could be considered, otherwise not. " (Lester et al. V. Berkowitz, 125 111. 307.) After this decision the cir- cuit court attached the defendant for contempt, for re- fusing to obey said order, and imposed a fine of $200 upon the defendant, Lester, and ordered that he stand committed until the fine and costs of the proceedings were paid, thus bringing the case within the rule there announced, and making the case one in which an appeal will lie. As a general rule, mere errors in making interlocutory orders will furnish no justification for refusing to obey the same, where they do not subject the party to the pay- ment of money or imprisonment. If the party agaiast whom such order is made wishes to contest the validity or propriety of the order, he may refuse to obey, and in the further proceeding for contempt he may show in defense that the court had no authority to make the order, and if his defense is disallowed, and judgment is entered against him for a sum of money by way of fine, enf orcible by execution or imprisonment, an appeal in his favor will lie. DECEEES 265 At eominon law, in suits upon sealed instruments, of which it was necessary to make profert, the defendant might demand oyer, and thereby have an inspection of the instrument sued upon. This was hmited to contracts or other instruments under seal, and technically knoAvn as deeds. By section 20, chapter 110, of our statute relating to practice, this rule is extended to all instruments declared on, whether under seal or not. It reads: "It shall not be necessary, in any pleading, to make profert of the instrument alleged, but in any action or defense upon an instrument in writing, whether under seal or not, if the same is not lost or destroyed, the opposite party may have oyer thereof, and proceed thereon in the same manner as if profert had been properly made according to the common law. ' ' And it was held, under this statute, that the court might compel the production of the original instrument sued on. Mason v. Buckmaster, Beecher's Breese, 27. Oyer or inspection is confined to instruments in writ- ing declared upon and constituting the cause of action, or set up in a plea by way of defense. It does not apply when the deed is stated as mere inducement. The com- mon law also furnished another mode, which was not con- fined to instruments under seal. This was by application, pending the action, to the equitable jurisdiction of the court for an order to inspect. (Pollock on Documents, 1.) The order for inspection Was obtainable "only in a very limited number of cases, as, where one party could be considered as holding a document as agent or trustee of the party seeking inspection, or where the applicant was a party to a written contract of which but one part is executed, or where one part has been lost or destroyed, and it was also, in general, considered necessary that the party applying should be a party to the instrument which he sought to inspect ; and although a trial was sometimes postponed for the purpoe of enabling a party to take pro- ceedings in equity, yet whenever an application to the 266 LESTEE V. THE PEOPLE court of law was in the nature of a bill for discovery, they invariably refused to grant inspection. Ibid. 3. It is claimed, however, that the order for the produc- tion and inspection of the defendants ' books is authorized by the statute relating to evidence, (sec. 9, chap. 51,) which provides that "the several courts shall have power in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice thereof given, to require the parties, or either of them, to produce books or writings in their possession or power which contain evidence pertinent to the issue." The evident purpose and design of this statute was to furnish to a party litigant a speedy and summary mode by which, under the order of the court, to obtain written evidence pertinent to the issue which might be in the possession and control of his adversary, and thus obviate the nec- essity of a bill of discovery, seeking the same end. It is manifest that it contemplates the production of evidence on the trial of the cause which the party applying there- for is entitled to introduce in support of his case, and which the other party withholds. It is only such books or writings as contain evidence pertinent to the issue that are required to be produced, and it is for the purpose of enabling the party demanding their production to intro- duce such pertinent matter in evidence on the trial. A defendant is not required to disclose matters of evidence relied upon in the defense, and thus inform the plaintiff of his case farther than the pleadings show. Matters purely of defense are the property rights of the defend- ant, which he may disclose, or not, upon the trial. (2 Phil- lips on Evidence, 330 ; Lawrence v. Ocean, 11 Johns. 245 ; Strong V. Strong, 1 Abb. Pr. 233.) This is undoubtedly the rule, and unless a showing is made, upon good and sufficient cause, that the evidence sought, or that the books and papers required to be produced, contain evi- dence pertinent to the issue on behalf of the party apply- ing therefor, the application should be denied. DECREES 267 The plaintiff, in his motion, and affidavits in support thereof, failed entirely to show that the books of the defendant's which he asked to inspect were required for any purpose of evidence in the case. Indeed, it is apparent that the appKcation was not for the production of such books to be used on the trial of the cause, but for the inspection of plaintiff and his counsel out of court, and for the purpose of preparing the case of the plaintiff for trial. It was shown, on the hearing, by the affidavits filed by defendants, that full and complete statements of all the plaintiff's dealings with the defendant firm, or through them, had been furnished, together with a full transcript of his account, and which were attached to the affidavit of the defendant Peters, filed on the hearing of the contempt case. The object and purpose of the appli- cations were to enable the plaintiff and his attorney to inspect, not only the accounts of the plaintiff with the defendants, and all entries made on their books in respect of the dealings between them, but also the inspection of daily purchases and sales of stocks by the defendants during the time of the transactions between plaintiff and defendants, irrespective of to or for whom or for whose account such sales or purchases were made, and the entry of all stocks carried by the defendants for them- selves or others, from day to day, and on each day during the same period. It was sought, and such was the order of the court, that the books of the defendants should be impounded with the clerk of the court indefinitely, for the purposes of such examination and inspection by counsel. Under the statute quoted, the court has power to compel the production of the books of a party to be used in evi- dence on the trial by his adversary, upon proper showing that they contain entries tending to prove the issues ; but the statute can not be construed as giving the court poWer and authority to take the books and papers of the party and impound them with an officer of the court for inspec- tion or examination out of the presence of the court. The 268 LESTER V. THE PEOPLE books sought to be inspected in tMs case were tbe prop- erty of tbe defendants, and contained many entries, as it is shown, of business transactions of the defendants with many other persons, and to large amounts, in which the plaintiff had no interest whatever. The right to compel the production of books as evidence is clear. The right to compel their submission to a general examination and inspection out of the presence of the court, even though in the possession of one of its officers, is entirely a dif- ferent matter. It will not be understood that the rule for the production of books before a master in chancery, in proper cases, is here sought to be stated. It is only such entries as in some way tend to prove a matter material to the issue that are competent to be considered upon compliance with the order to produce the same. It might be, that these books of the defendants might contain entries tending to show illegal transactions upon the stock exchange, or upon the board of trade, of which the entries in such books might become competent evidence against the defendants in penal prosecutions ; but such fact, if it existed, or was shown by affidavit to exist, would furnish no ground or justification for the order made. The stat- ute does not give the right to compel the submission of the books of a party to general inspection or examination for fishing purposes, or with a view to find evidence to be used in other suits or prosecutions. Updyke v. Marble, 44 Barb. 69; Mott v. Consumers' Ice Co., 52 How. Pr. 148 ; Cutler v. Poole, 54 id. 311 ; Whetman v. Waller, 39 Ind. 515 ; 2 Best on Evidence, sec. 625. The statute under consideration ought, if possible, to receive such a construction as wiU not render it in con- flict with the constitution of the State or of the United States. The constitution of this State provides that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated. Cooley, in a note to his work on Constitutional Limitations (p. 307), after refer- DECREES 269 ring to a few cases in which the court has ordered a pro- duction of private telegrams, says : "We should suppose, were it not for the opinions to the f^ontrary by tribunals so eminent, that the party could be entitled to a man's private correspondence, whether he obtained it by seiz- ing it in the mail, or by compelling the operator of the telegraph to testify to it, or by requiring the servant to take from his desk his private letters and journals and bring them into court on subpoena duces tecum. Any such compulsory process to obtain it seems a most arbi- trary and unjustifiable seizure of private papers — such an unreasonable seizure as is directly condemned by the constitution." See, also, Ellbourn v. Thompson, 113 U. S. 168 ; Boyd v. United States, 116 id. 616. Under the constitution, the defendants' private books and papers were protected against unreasonable searches and seizures, and we think that this constitutional right was violated and disregarded by the order of the court. While an order for the production of a party's books on the trial, to be used as evidence, in proper cases and upon proper showing, is not an unreasonable seizure of them, an order by which his books are taken from his custody and committed to that of a third person, for an indefinite period of time, for an inspection, generally, into all of his affairs by the opposite party and his counsel, with leave to take copies of the entries therein, in our opinion is unwarranted by the law, amounts to an unlawful depriva- tion of his property rights, and is in palpable violation of his constitutional right to be secure against unreason- able seizure of his papers and effects. The statute under consideration was not intended to justify such taking and holding of the private books of a litigant. As before said, its purpose is met when the party is required to produce, in open court, all books and papers in his possession or power which contain evidence pertinent to the issue, and reasonable opportunity is given for examination thereof in the presence and under the direction of the court. 270 LESTER V. THE PEOPLE We are of opinion that the court exceeded its power in requiring the defendants to place their books of account in the hands of the clerk, there to remain indefi- nitely, with leave to the plaintiff and his attorney to make copies of the entries therein, not for the purpose of being then used in evidence under the direction of the court, but for the purpose of enabling the plaintiff to prepare his case, with the advantage of being advised beforehand of the defendant's defense to his action. The defendant had the right to question the propriety of such order, and, as we have seen, to do so he must refuse to obey. The order being unauthorized, he had a right to disregard it, and there was, therefore, error in the imposition of a fine for his disobedience of such order. For the reasons given, the order of July 12, 1887, and the judgment of the court in the attachment proceeding, are reversed. XIX PETITION FOR REHEARING 80. SCOTT V. HORE 1 Hughes 163 Motion for rehearing on the ground of the negligence of defendant's counsel. Hughes, J. : I am -to decide whether this motion for a rehearing of the cause can be granted, and whether the decree of this court, entered on the 9th of April, 1874, can be set aside on such motion. I think it is now settled law in Virginia, notwithstanding the remarks of the court in 9 Leigh 2S9, on the case of Patterson v. Campbell, never reported, that a judgment or decree rendered by default cannot be opened on the ground of the neghgence of counsel. In Hill v. Bowyer, 18 Gratt. 382-6, the court of appeals says: "A defendant upon whom process has been served, who wholly neglects his defense, or contents himself with employing a lawyer who practices in the court to defend him without giving any information about his defense, or inquiring whether he is attending to the case, is not entitled to rehef on the ground of sur- prise, however grossly unjust the decree may be." For other decisions of the court on this point see 9 Leigh 478; 10 Gratt. 506; 22 Gratt. 136; and Wallace v. Rich- mond, assignee to be reported in 25 Gratt. It is also to be gathered from these cases that the proceeding proper to be employed in apphcations for opening judgments or decrees taken on default through neghgence of counsel is not that by a motion for rehearing, but by bill in chan- cery. Under the Virginia law, this apphcation by motion cannot be sustained at all ; and the decisions are against it though made by bill. 271 272 SCOTT V. HOEB If this motion depended alone upon the law as settled in Virginia for the courts of the state, I should feel bound to deny it on the ground : 1st. That negligence of coun- sel is in Virginia no ground for opening a judgment or decree ; and, 2nd, that even though in extreme cases it be so, yet the proper mode of proceeding for defendant is by bill of injunction, and not by motion. But behind these reasons, which forbid a rehearing of this case on motion, there is another objection more in- surmountable than the rest. The eighty-eighth rule of the supreme court of the United States, prescribed for proceedings in chancery in the inferior courts, forbids the rehearing of a cause after the term at which the final de- cree of the court shall have been entered and rendered, if an appeal lies to the supreme court. The spring term and the fall term for 1874 of this court had both passed before this motion was entered. The general decisions of the court of England and the states of America, many of which have been cited in argument, can have no force in this court in opposition to such rule. We are bound here by the rule 88. The very fact of there having been a diversity of rulings on this subject by other courts was probably the inducement which led the supreme court to lay down its rule 88. That rule is the law here, what- ever may be the rulings of the other courts of the highest authority on this subject. The supreme court has not only laid down its rule 88, but in the cases of Cameron V. McEoberts, 3 Wheat. 591, and McMicken v. Perin, 18 How. 507, has construed that rule and decided that cir- cuit courts have no power to set aside their decrees in equity, on motion, after the term at which they are ren- dered. If the decree of the 9th of April, 1874, was a final de- cree, and an appeal lies from it to the supreme court, then I am not at liberty to grant a rehearing. If it is a final decree, then an appeal does lie to the supreme court because the amount involved exceeds $2,000, the sum PETITION FOR KEHEAEINQ 273 then requisite to give jurisdiction of an appeal to that court. The only inquiry, therefore, is whether the de- cree in question was a final decree. It has been truly said in argument that there are two classes of decisions by appellate courts with reference to this character of finahty in decrees: 1st, those in which it is necessary to determine whether an appeal hes ; and, 2nd, those in which a limitation of time for an ap- peal cuts off the right. In the first class of cases the courts go farther to construe a decree as final than they do in the last class of cases ; in each class aiming to pre- serve to the suitor this valuable right. A court will when no Hmitation of time occurs, strain a point to treat a decree as final from which an appeal has been taken; and in the other case it will strain a point to treat a decree as not final where an appeal would be cut off by limitation. Hence has arisen a diversity of decisions on this question, all made in the interest of the suitor's right of appeal. I admit the difficulty of defining a final decree in such precise terms as will hold good in all cases. I have been in the habit of thinking those decrees to be final which determine all the principles of law and equity arising in a ease, and which give direction for carrying the principles so decided into execution. If decrees which are made after all evidence is taken, and full and final argument heard, and which determine all questions raised, do not go on to provide for carrying into complete execution the principles decided, they are in that respect defective. They are final decrees, though as such they may be defective in their ministerial parts. The supreme court of the United States has not infre- quently complained of district and circuit courts for not entering complete final decrees, and of their carrying into execution by piecemeal decisions which finally set- tle all questions arising in causes. The difficulty of defin- ing what are final decrees has arisen chiefly from the fact that decrees really final in character have been de- E. p. C— 18 274 SCOTT V. HORE feetive in providing fully for the ministerial measures to be taken by officers of the court in carrying them into execution. Of course it would be exceedingly empirical to hold that a final decree is the order entered last in point of time in a cause. A final decree is one which fin- ally adjudicates the questions of right and of law in- volved in a cause, and proceeds to provide with reason- able completeness for the execution of such measures as may be necessary and proper for placing successful suit- ors in possession of the rights decreed to them. The decree now under consideration is final, and in my judgment, not only in its express terms, but in its sub- ject-matter. Being a final decree, and one from which an appeal may be taken to the supreme court, it cannot be opened now on a motion for rehearing. The only possi- ble method by which it can be re-examined in this court is upon bill of review. If such a bill is not brought, there is no way of staying the execution of it other than by ap- peal. The motion of the defendant is denied. XX BILL OF REVIEW 81. DEXTER V. ARNOLD 5 Mason 303 Statement of Facts : Hearing of a petition to file a bill for the purpose of having a review of a decree ren- dered at a former term of the court. The petitioner, in whose favor the previous decree had been rendered against Thomas Arnold, the husband of the present de- fendant, for an accounting, and under which he had been paid $500.66, claimed that since that time new facts had been discovered, showing that several sums of money had come into the hands of Thomas Arnold, not accounted for by the master, and that several claims had been al- lowed in favor of said Arnold by the master, which, in the light of this subsequent evidence, should not have been allowed. Stoet, J. : The present is a somewhat novel proceed- ing in this circuit ; and I am not aware that, in any other circuit of the United States, any general course of prac- tice has prevailed which would supersede the necessity of acting upon this, as a case of first impression, to be decided upon the general principles of courts of equity. It comes before the court upon a petition for leave to file a bill of review of a decree rendered in this court at November term, 1823, principally upon the ground of a discovery of new matters of fact. The petition was filed at November term, 1827, and affidavits have been read in support of it. Counter-affidavits have also been admitted on the otter side, not for the purpose of investigating or absolutely deciding upon the truth of the statements 275 276 DEXTER V. ARKOLD in the petition, but to present, in a more exact shape, some of the circumstances growing out of the original proceedings, which may assist the court in the prelimi- nary discussion, whether leave ought to be granted to file the bill of review. This course, though not very common, is, as I con- ceive, perfectly within the range of the authority of the court (see Livingston v. Hubbs, 3 Johns. Ch. 124; Norris V. Le Neve, 3 Atk. 25) ; and may be indispensable for a just exercise of its functions in granting or withholding the review. If, indeed, it were doubtful, in case the bill of review should be allowed, whether the defendants could by plea or answer traverse the allegation in such bill that the matter of fact is new, I should not hesitate to inquire, in the most ample manner, into the truth of such allegation, before the bill was granted, in order to prevent gross injustice. But as every such bill of review must contain an allegation that the matter of fact is new, it seems to me clear upon principle, that, as it is vital to the relief, it is traversable by plea or answer, and must be proved if not admitted at the hearing. In Han- bury V. Stevens (1784), cited by Lord Eedesdale (Eedesd. PI. Eq. 80), (3d ed. 70), the court is reported to have held that doctrine. The case of Lewellen v. Mackworth, 2 Atk. 40; Barnard's Ch. 445, though very imperfectly, and, as I should think, inaccurately, reported, seems to me to support the same conclusion. It has been relied upon by the best text-writers for that purpose. Eedesd. PL Eq. 231 (3d ed.) ; Coop. Eq. PI. 305; Montague's Eq. PI. 335, note; id. 336; 2 Montague's Eq. PI. 227, note 100. Lord Eedesdale, in his original work on Equity Plead- ings (Eedesd. Eq. PI. 80, 2d ed.), stated the point as one which may be doubted ; but upon principle I cannot see how that can well be. And in the last edition (the third), revised by his lordship, I find that he has ques- tioned the propriety of such a doubt. Eedesd. PL Eq. 70 (3ded.). BILL OP REVIEW 277 Before I proceed to consider the particular grounds of the present petition, it may be well to glance at some of the regulations which govern courts of equity in rela- tion to bills of review, that we may be better en- abled to judge of their application to the courts of the United States. The ordinance of Lord Bacon constitutes the foundation of the system and has never been de- parted from. It is as follows: "No decree shall be reversed, altered or explained, being once under the great seal, but upon a bill of review. And no bill of re- view shall be admitted except it contain either error in law, appearing in the body of the decree, without far- ther examination of matters of fact or some new matter which hath arisen after the decree, and not any new proof which might have been used when the decree was made. Nevertheless, upon new proof that is come to light after the decree made, and could not possibly have been used at the time lohen the decree passed, a bill of review may be grounded by the special license of the court and not otherwise." Beame's Orders in Chancery 1. A bill of review, therefore, Ues only when the decree has been enrolled under the great seal in chancery. If it has not been so enrolled, then for error of law ap- parent upon the decree the remedy is by a petition for a rehearing. Perry v. Phelips, 17 Ves. 173, 178. But if the ground of the bill is new matter, discovered since the decree, then the remedy is by a supplemental bill in the nature of a bill of review, and a petition for a rehearing, which are allowed by special license of the court. Eedesd. Eq. PI. 65 (78), 81; Coop. Eq. PI. 88, 89, 90, 91; Beame's Orders in Chan. 2 and 3, notes ; Sheffield v. Duchess of Buckingham, 1 West. 682 ; Montag. Eq. PL, ch. 12, p. 330 ; Norris v. Le Neve, 3 Atk. 26 ; Perry v. Phelips, 17 Ves. 173 ; Blake v. Foster, 2 B. & Beatty 457, 460. This dis- tinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the practice of the courts of the United States, and 278 DEXTER V. AENOIiD perhaps rarely in any of the state courts of equity in the Union. I take it to be clear that in the courts of the United States all decrees as well as judgments are mat- ters of record, and are deemed to be enrolled as of the term in which they are passed. So that the appropriate remedy is by a bill of review. In regard to errors of law, apparent upon the face of the decree, the established doctrine is that you cannot look into the evidence in the case in order to show the de- cree to be erroneous in its statement of the facts. That is the proper office of the court upon an appeal. But tak- ing the facts to be as they are stated to be on the face of the decree, you must show that the court have erred in point of law. Mellish v. "Williams, 1 Vem. 166; Cran- borne v. Delahay, 2 Freem. 169; Combs v. Prowd, 1 Ch. Cas. 54; S. C, 2 Freem. 181; 3 Rep. Ch. 18; Hard. 174; Perry v. Phelips, 17 Ves. 173; O'Brien v. Conner, 2 B. & Beatt. 146, 154. If, therefore, the decree does not con- tain a statement of the material facts on which the de- cree proceeds, it is plain that there can be no relief by a bill of review, but only by an appeal to some superior tribunal. It is on this account that in England decrees are usually drawn up with a special statement of, or ref- erence to, the material grounds of fact for the decree. Combs V. Prowd, 1 Ch. Cas. 54; Brend v. Brend, Vern. 214; S. C, 2 Ch. Cas. 161; Bonham v. Newcomb, 1 Vern. 216; O'Brien v. Conner, 2 B. & Beatt. 146, 154. In the courts of the United States the decrees are usually gen- eral. In England the decree embodies the substance of the bill, pleadings and answers,; in the courts of the United States the decree usually contains a mere refer- ence to the antecedent proceedings without embodying them. But for the purpose of examining all errors of law, the bill, answers and other proceedings are, in our practice, as much a part of the record before the court as the decree itself ; for it is only by a comparison with BILL OP REVIEW 279 the former that the correctness of the latter can be as- certained. In regard to new matter there are several considera- tions deserving attention. In the first place the new mat- ter must be relevant and material, and such as, if known, might probably have produced a different determination. Bennett v. Lee, 2 Atk. 529; O'Brien v. Conner, 2 B. & Beatt. 155; Portsmouth v. EfiBngham, 1 Ves. 429. In other words, it must be new matter to prove what was before in issue, and not to prove a title not before in is- sue (Coop. Eq. PL 91; Patterson v. Slaughter, Amb. 292; Young v. Keighley, 16 Ves. 348; Blake v. Foster, 2 B. & Beatt. 457, 462) ; not to make a new case, but to establish the old one. In the next place the new matter must have come to the knowledge of the party since the period in which it could have been used in the cause at the original hearing. Lord Bacon's ordinance says in one part it must be "after the decree;" but that seems corrected by the subsequent words, "and could not pos- sibly have been used at the time when the decree passed," which point to the period of publication. Lord Hart- wicke is reported to have said that the words of Lord Bacon are dark; but that the construction has been that the new matter must have come to the knowledge of the party after puUication passed. Patterson v. Slaughter, Amb. 293. The same doctrine was held in Norris v. Le Neve, 3 Atk. 25, 34, and has been constantly adhered to since. A qualification of the rule quite as important and instructive is that the matter must not only be new, but that it must be such as that the party, by the use of reasonable diligence, could not have known ; for if there be any laches or neghgence in this respect that destroys the title to the reUef. That doctrine was expounded and adhered to by Lord Eldon in Young v. Keighley, 16 Ves. 348, and was acted upon by Lord Manners in Barrington V. O'Brien, 2 B. & Beatt. 140, and Blake v. Foster, 2 B. & Beatt. 457, 461. It was fully recognized by Mr. Chan- 280 DEXTER V. AENOLD eellor Kent, and received the sanction of Ms Mgh au- thority in Wiser v. Blachly, 2 Johns. Oh. 488, and Barrow V. Rhinelander, 3 Johns. Ch. 120. And in the very recent case of Bingham, v. Dawson, 3 Jac. & Walk. 243, Lord Eldon infused into it additional vigor. Upon another point, perhaps there is not a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous ease in 2 Freeman 31, where the chancellor said that "where a matter of fact was par- ticularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review. But where a new fact is alleged that was not at a former hearing, there may be a ground for a bill of review." Now, assuming that under certain circumstances new matter not evidence, that is, not in issue, in the original cause, but clearly demonstrating error in the decree, may support a bill of review, if it is the only mode of obtaining relief ( see Norris v. Le Neve, 3 Atk. 33, 35; Eoberts v. Kingsley, 1 Ves. 238; Earl of Portsmouth v. Lord Effingham, 1 Ves. 429; Eedesdale Eq. PL 67, etc. [last edition] ; 1 Montag. PL Eq. 332, 333 ; Wilson V. Webb, 2 Cox 3 ; Standish v. Radley, 2 Atk. 177 ; see also. Lord Eedesdale 's Observations in his third edi- tion of his Equity Pleadings, p. 67), still it must be ad- mitted that the general rule is that the new matter must be such as is relevant to the original case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, is reported to have admitted that a bill of review might be founded upon new matter not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Amb. 293 (see also. Young v. Keighley, 16 Ves. 348, 354; Blake v. Foster, 2 B. & Beatt. 457, 462), or upon matter which was in issue, but discovered since the hearing. But the very point in 2 Freeman 31, if I rightly understand it, is that a newly-discovered fact is ground for a bill ; but not newly-discovered evidence in proof of any fact already in issue. This seems to me at variance BHilj OP REVIEW 281 with Lord Bacon's ordinance, for it is said that there may be a review upon "new matter, which hath arisen in time after the decree," and, also, "upon new proof that has come to light after the decree made, and could not possibly have been used at the time when the decree passed." It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, and Amb. 293. Lord Eldon, in Young v. Keighley, 16 Ves. 348, 350, said : "The ground (of a bill of review) is error apparent on the face of the decree, or neiv evidence of a fact ma- terially pressing upon the decree, and discovered at least after pubHcation in the cause. If the fact had been known before publication, though some contradiction ap- pears in the eases, there is no authority that new evidence would not be sufficient ground." That was also the opinion of Lord Manners in Blake v. Foster, 2 B. & Beatt. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. 124, adopted the like conclusion; and he seemed to think that such new evidence must not be a mere accumulation of witnesses to the same fact, but some stringent written evidence or newly-discovered papers. Gilbert, in his Forum Eomanum, chapter 10, page 186, leans to the same hmitation, for he says that in bills of review "they can examine to nothing that was in the original cause, unless it be matter happening subsequent which was not before in issue, or upon matter of record or writing not known before, for if the court should give them leave to enter into proofs upon the same points that were in issue, that would be under the same mischief as the examination of witnesses after publication, and an inlet into manifest perjury. ' ' See, also, Barton's Eq. 216; Tovers v. Young, Prec. Ch. 193; Taylor v. Sharp, 3 P. Will. 371 ; Standish v. Eadley, 2 Atk. 177 ; Chambers V. Greenhill, 2 Chan. 66; Thomas v. Harvie's Heirs, 10 Wheat. 146. There is much good sense in such a distinc- tion operating upon the discretion of the court in refus- ing a bill of review, and I should be glad to know that it 282 DEXTEE V. ARNOLD has always been adhered to. It is certain that cumulative evidence has been admitted^ and even written evidence, to contradict the testimony of a witness. That was the case of Attorney-General v. Turner, Amb. 587. Willan V. Willan, 16 Ves. 72, 88, supposes that new testimony of Avitnesses may be admissible. If it be admissible (upon which I am not called to decide), it ought to be received with extreme caution, and only when it is of such nature as ought to be decisive proof. There is so much of just reasoning in the opinion of the court of appeals of Kentucky on this subject that I should hesitate long before I should act against it. See Eespass v. McCiana- han, Hardin (Ky.) 342; Head v. Head, 3 Marsh. (Ky.) 121 ; Eandolph v. Eandolph, 1 H. & M. 180. In the nest place it is most material to state that the granting of such a bill of review is not a matter of right, but of sound discretion in the court. Sheffield v. Duchess of Buckingham, 1 West. 682 ; Norris v. Le Neve, 3 Atk. 33 ; Gould V. Tancred, 2 Atk. 533. It may be refused, therefore, although the facts, if admitted, would change the decree where the court, looking to all the circum- stances, deems it productive of mischief to innocent par- ties, or for any other cause unadvisable. Bennet v. Lee, 2 Atk. 528 ; Wilson v. Webb, 2 Cox 3 ; and Young v. Keigh- ley, 16 Ves. 348, are strong exempHfications of the prin- ciple. These are the principal considerations which appear to me useful to be brought into view upon the present occa- sion. Let us now advert to the grounds upon which the petition is framed and see how far any are applicable to them. The original bill was brought against Thomas Arnold (whose administrator is now before the court), for an account and settlement of his brother Jonathan Arnold's estate, upon which he had administered. The case is reported in the third volume of Mr. Mason's Reports, BILL OF REVIEW 283 page 284, and I refer to that for a summary of the pro- ceedings and final decree. In preferring the present petition the proper course of proceeding has been entirely mistaken. The present counsel for the petitioner is not responsible for those proceedings, they having taken place before he came into the cause. A petition for leave to file a bill of review for newly-discovered matters should contain in itself an ab- stract of the former proceedings, the bill, answers, de- cree, etc., and should then specifically state what the newly-discovered matter is and when it first came to the party's knowledge, and how it bears on the decree, that the court may see its relevancy and the propriety of al- lowing it. Coop. Eq. PI. 92. The present petition, in its original form, contained nothing of this sort, but re- ferred to an accompanying bill of review as the one which it asked leave to file, and then simply affirmed the facts stated in it to be true. This was sufficiently irregular. But upon looking into this bill of review the grounds of error are stated in a very loose manner, and in so genera] a form as to be quite inadmissible. The first error assigned is in matter of law, and it is that Thomas Arnold, the administrator, ought to have been charged with interest upon all sums of money which he had received as administrator, because the said sums were used by him. The master, in his report, had be- clined to allow interest ; and, upon an exception taken, the court confirmed his report on this point. I see no reason for changing the decree on this point, for the reasons stated in the cause in 3 Mason 288, 290 ; and there is no pretense to say that there is any such proof of the use of the money in the report of the master as justifies a differ- ent conclusion. There is no error in this respect apparent on the face of the master's report or the decree. The al- lowance or disallowance of interest rests very much upon circumstances, and slight errors in this respect are not always held fatal. See Gould v. Tancred, 2 Atk. 533. 284 DEXTER V. AENOLD There is no error apparent, therefore, on which a review ought to be granted. The next ground assigned is that Thomas Arnold did receive large sTuns of money and other property, which he has not accounted for before the master, and for which he ought to account; and that since the decree the petitioner hath discovered new and further evidence in relation thereto, which would have materially changed the report of the master and the de- cree. The petition does not state what the new evidence is, nor when discovered, and it is quite too vague for any order of the court. The bill then proceeds, very irregu- larly, to require, that the administrator of Thomas Ar- nold should answer certain interrogatories as to the car- goes of the ship Friendship. It then states that Thomas Arnold received six shares in the Tennessee Land Com- pany, and that he received $8,000 on a policy of insurance on the brig Friendship, and that he received large con- signments of property from Vincent Gray in Cuba in bills of exchange, etc., belonging to Jonathan's estate; and finally, that he received divers other large sums of money as agent of Jonathan. Now it must be manifest that upon allegations so general and distinct no bill of review would lie. Here is no assertion of newly-discov- ered evidence to maintain one. Such a bill, so framed, ought never to be allowed by a court acting upon the correct principles of chancery jurisdiction. Afterwards an amendment of this bill to review was filed, containing more distinct specifications of new mat- ter, most of which, however, as I shall have occasion to notice hereafter, are open to the same objections as those already stated. But the radical objection to both bills is that they are improperly introduced into the cause at all. A bill of re- view can only be filed after it is allowed by the court, and upon the very grounds allowed by the court. The preliminary appHcation by petition to file it should state the new matter shortly, distinctly and exactly, so that BILL OF EEVIEW 285 the court may see how it presses on the original cause; and it is not permissible to load it -with charges and alle- gations as in an original seeking hill in equity. In the sense of a court of chancery there is not before this court any sufficient petition upon which it can act. But as the proceeding is a novelty in this circuit, much indulgence ought to be allowed to the original counsel in the cause (for the present counsel is not at all charge- able) for irregularities of this nature upon the first pre- sentation of the practice. I advert to the posture of the cause, therefore, not so much with an intention to subject it to close criticism, as for the purpose of declaring that, even if I could gather from the papers that there is mat- ter upon which a bill of review would He, it is not before the court iu such a shape that the court could judicially pass an order of allowance. The case has, however, been argued, and with great ability, upon its merits ; and waiving for the present any further reference to the form of the proceedings, I will proceed to the consideration of the points made at the bar. The first point is one made by the defendant, and, be- ing preliminary in its nature, must be disposed of be- fore the plaintiff can be further heard. It is said to be a rule in equity, that, where a party has less decreed to him than he thinks himself entitled to, he cannot bring a bill of review; for that lies only in favor of a party against whom there is a decree. For this is the opinion of elementary writers (2 Madd. Pr. 412; 1 Harris. Pr. 86), and the case of Glover v. Partington, 2 Freem. 183; S. C, 2 Eq. Abrid. 174, is cited. The case, as here re- ported, certainly supports the doctrine. But it appears to me that, if the doctrine is correct, it is so only in cases where there is no error apparent on the face of the de- cree, and no newly-discovered matter to support a bill of review, for then the proper remedy is by appeal. If there is no such remedy by appeal, but only by bill of re- 286 DEXTER V. AENOL/D view, it would be strange if a material error could not be redressed upon such, a bill by a party to wbom it bad been injurious ; tbat if a man bad $10,000 due Mm, and bad a decree for $100, be was conclusively bound by an error of tbe court. Tbe decision, reported in 2 Freeman 182, was made by tbe master of tbe rolls, wbo allowed tbe demurrer ; but from tbe report of tbe same case in 1 Cb. Cas. 51, it appears tbat it was afterwards rebeard be- fore tbe Lord Cbancellor and Baron Eainsford, and tbe demurrer was overruled. See S. C, cited Com. Dig., Cbancery, G, to tbe same effect. So tbat tbe final de- cision was against tbe doctrine for wbicb it is now cited. A.nd Lord Nottingham, a few years afterwards, in Van- debende v. Levingston, 3 Swanst. 625, resolved tbat tbe plaintiff may bave a bill of review to review a decree made for himself, if it be less beneficial to bim tban in trutb it ougbt to bave been. We may tben dismiss tbis objection. We may now advance to tbe examination of tbe points made by tbe petitioner in support of bis petition for a re- view, assuming tbat tbe amended bill of review is to be received, pro bac vice, as sucb a petition. I bave already stated tbat it is utterly defective in tbe essential ingredi- ents of sucb a petition, in not stating witb exactness tbe nature of tbe new evidence, and wben it was first dis- covered. It is not sufficient to say tbat tbe petitioner ex- pects to prove error in tbis or tbat respect ; or tbat be has discovered evidence wbicb be bopes will establish tbis or that fact. But be must state tbe exact nature and form of tbe evidence itself, and when disco"wered. If written evi- dence, it must be stated, and its direct bearing shown. If of witnesses, what facts tbe witnesses will prove, and wben tbe party first knew tbe nature of their testimony. It is impossible otherwise for tbe court to judge whether evidence is decisive or is merely presumptive or cumula- tive ; whether it goes vitally to the case, and disproves it, or only lets in some new matter, confirmatory or explan- BILIi OF REVIEW 287 atory of the transactions in the former decree. The party must go further and establish that he could not, by reasonable diligence before the decree, have procured the evidence. Now, in every one of these particulars, the amended bill, quasi a petition, is extremely deficient. I have looked it over carefully, and cannot find that it points out a single written paper which disproves the original case, or names a single witness whose testimony, if admitted, would overturn it. It deals altogether in general allegations that certain things are expected to be proved; and, like an original bill, proceeds to ask a dis- covery from the defendant of letters and papers in her possession as administrator, relative thereto. There are indeed, in the accompanying affidavits, some papers pro- duced and relied on; but they cannot supply the defects of the original petition. The remainder of the case, being merely a discussion of facts, is omitted. Petition disnaissed. TABLE OF CASES CITED [references are to pages] Adams v. Valentine 194 Allison V. Drake 232, 251 Backus V. Brooks 99 Bailey v. Wright 149 Blease v. Garlington 213 Bolton V. Gardner 143 Brandon Mfg. Co. v. Prime 28 Brown v. City of Aurora 76 Chapman v. Barney 69 Cochrane v. Adams 122 Crockett v. Lee 217 Day V. Cole 119 Dexter v. Arnold 275 Dillon V. Barnard 114 Eslava v. Mazange 222 Ewing V. BUght 148 Farley v. Kitson 132 Fayerweather v. Eitch 217 Finley v. Bank of U. S 16 Forgay v. Conrad 255 Gaines v. New Orleans 242 Gilham v. Madison R. E. Co 1 Gray v. Larrimore 23, 61 289 290 table op cases cited [eepeeences aee to pages] Hartzell v. Brash. 121 Harvey v. Morgan 153 Haskett et al. v. Maxey et al 3 Hayes v. Dayton 32 Hicklen v. Marco 10 Holt V. Daniels 180 Hood V. Inman 92 Jackson v. Ashton 33 John V. Waterhonse 52 Johnson v. Roberts 66 Jones V. Andrews 44 Kimberly v. Arms 237 Koch V. Arnold 211 Langdon v. Goddard 184 Lathrop v. Bramhall 226 Law V. Ware 112 Leggett V. Bennett 110 Lester v. People 263 Lester v. Stevens 146 Lewisburg Bank v. Sheffey 248 Longworth v. Taylor 21 Louisiana Bank v. Whitney 247 Lowenstein v. Glidewell 200 Maiden Gas Light Co. v. Chandler 79 McMicken v. Perin 241 Meagher v. Thresher Co 244 Moors V. Moors 169 Morgan v. Morgan 51 Moss V. McCall 220, 235 Murphy v. Murphy 87 Myers v. Dorr 38 Neal V. Foster 187 Newman v. Moody 163 table op cases cited 291 [eefeeences are to pages] O 'Hara v. MacCormell 55 Parkliurst v. Kinsman 203 Payne v. Hook 18, 48 Peay v. Sclienck 35 Penn. Steel Co. v. N. Y. City Ey. Co 206 Phoenix Mnt. Life Ins. Co. v. Wulf 58 Radford v. Folsom 126 Railroad Co. v. Swasey 261 Reeves v. Slater 82 Rittenhouse v. Newhard 74 Russell T. Stiekney 158 Sandifer v. Sandif er 64 Scott V. Hore 271 Smith V. Potter 173 South Chicago Brew. Co. v. Taylor 208 Spangler v. Spangler 151 Sullivan v. Railroad Co 108 Travers v. Ross 165 Turner v. Bank 33 Vose V. Bronson 26 Westervelt v. Library Bureau 140 Woods V. Morrell 91 Wooster v. Gumbirner 237 LEADING LAW SCHOOL TEXT BQOKS Agency — Bays. A handbook, by Alfred W. Bays, Professor of Law, Northwestern University School of Commerce. $1.S0. Agency Outlines — ^Iffeohem Outlines of Agrencyp by Floyd R. Mechem. Professor of Law in the University of Chicago. Second Edition. '$2.00. 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